FEDERAL COURT OF AUSTRALIA

McIlwain v Ramsey Food Packaging Pty Ltd [2006] FCA 828

INDUSTRIAL LAW – consideration of conduct of dismissal of employees and refusal to employ persons at the South Grafton Abattoir – consideration of Part XA, Divisions 2 and 3 – ss 298K(1)(a) and (d) and prohibited purposes of membership of an industrial association, entitlements to the benefit of orders of the AIRC, participation in proceedings before the AIRC as a party and by giving evidence – the expression of dissatisfaction of working conditions in the context of an industrial association seeking better conditions – consideration of the circumstances required to be satisfied before a statutory presumption of a prohibited purpose arises for the purposes of s 298V.

PRACTICE AND PROCEDURE – consideration of the approach to be adopted in dealing with a ‘no case to answer’ submission and whether a respondent ought to be put to an election as a condition of making the submission – consideration of the basis upon which submission made and the relationship between the grounds advanced by the moving party and the need for an election.

EVIDENCE – consideration of the utility of the report of an expert and the extent to which the report failed to meet the standards required by the Guidelines for Expert Witnesses in Proceedings in the Federal Court of Australia issued by the Chief Justice on 19 March 2004 – consideration of the extent to which the report might be characterised as a piece of advocacy for a party.

EVIDENCE – consideration of the principles governing the reception of tendency evidence both generally and for the purposes of s 97 of the Evidence Act 1995 (Cth) – consideration of the circumstances in which inferences might be drawn from secondary facts in order to establish the fact in issue.

Workplace Relations Act 1996, s 298K(1)(a), (d); s 298L(1)(a), (h), (j), (k) and (l); s 298U(a), (c); s 356(b); s 298T(2)(d); s 298V;

Evidence Act 1995 (Cth)

Crimes Act (Cth) 1914-1932

Conciliation and Arbitration Act 1904-1975 (Cth)

Conciliation and Arbitration Act 1904-1976 (Cth)

Judiciary Act 1903 (Cth)

The King v Hush; Ex parte Devanny (1932) 48 CLR 487 – cited and quoted

McIlwain v Ramsey Food Packaging Pty Ltd [2005] FCA 1445 - cited

Australian Competition and Consumer Commission v Amcor Printing Papers Group Ltd (2000) 169 ALR 344 - cited

Protean (Holdings) Ltd v American House Assurance Co. [1985] VR 187 - cited

Stevenson v Barham (1977) 136 CLR 190 – cited and quoted

Compaq Computer Australia Pty Ltd v Merry & Ors (1998) 157 ALR – cited and quoted

Parry v Aluminium Corporation [1940] WN 44 – cited and quoted

J-Corp Pty Ltd v Australian Builders Labourers Federated Union of Workers (Western Australian Branch) & Ors (No. 2) (1992) 38 FCR 458 - cited

Tozer Kemsley & Millbourn (Australasia’s Asia) Pty Ltd v Collier’s Interstate Transport Services Ltd (1955 – 1956) 94 CLR 384 - cited

James & Ors v Australia and New Zealand Banking Group Ltd (1985-86) 64 ALR 347 - cited

Residues Treatment Trading Co. Ltd v Southern Resources Ltd (1989) 52 SASR 54 - cited

Prentice v Cummins (2002) 124 FCR 67 – cited and quoted

The Trustees of the Property of John Daniel Cummins v Mary Cummins [2006] HCA 6 - cited

Jones v Dunkel (1959) 101 CLR 298 - cited

Blackadder v Ramsey Butchering Services Pty Ltd [2002] FCA 603 - cited

Evans Deakin Pty Ltd v Sebel Furniture Pty Ltd [2003] FCA 171 - cited

HG v The Queen (1999) 197 CLR 414 - cited

Qantas Airways Limited [2004] ACompT 9 - cited

Bradshaw v McEwans Pty Ltd 217 ALR 1 – cited and quoted

Luxton v Vines (1952) 85 CLR 352 - cited

Girlock (Sales) Pty Ltd v Hurrell (1982) 149 CLR 155 - cited

Noakes v Doncaster Amalgamated Collieries Ld (1940) A.C. 1014 – cited and quoted

Textile Footwear and Clothing Union of Australia v Bellechic Pty Ltd & Ors [1998] FCA 1465 - cited

David’s Distribution Pty Ltd v National Union of Workers (1999) 91 FCR 463 – cited and quoted

Greater Dandenong City Council v Australian Municipal, Administrative, Clerical and Services Union [2001] 112 FCR 232 - cited

Employment Advocate v Barclay Mowlem Construction Ltd (2005) 139 IR 19 – cited and quoted

Laz v Downer Group Ltd (2000) FCA 1390 – cited and quoted

National Union of Workers v Qenos Pty Ltd (2001) 108 FCR 90 – cited and quoted

Heidt v Chrysler Australia Ltd (1976) 26 FLR 257 – cited and quoted

Transport Workers’ Union v De Vito (2002) 140 IR 33 - cited

General Motors Holden Pty Ltd v Bowling (1976) 12 ALR 605 – cited and quoted

Maritime Union of Australia v Geraldton Port Authority (1999) 93 FCR 34 – cited and quoted

Australian Workers’ Union v John Holland Pty Ltd (2000) 103 IR 205 - cited

BHP Iron-Ore Pty Ltd v Australian Workers’ Union & Ors (2000) 102 FCR 97 – cited and quoted

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

Patrick Stevedores Operations No. 2 Pty Ltd v Maritime Union of Australia (1998 - 1999) 195 CLR 1 – cited

Employment Advocate v Williamson (2001) 111 FCR 1 – cited and quoted

Fraser v Fletcher Construction Australia Ltd (1996) 70 IR 117 – cited and quoted

Construction, Forestry, Mining and Energy Union v BHP Steel (AIS) Pty Ltd [2000] FCA 1008 – cited and quoted

Maritime Union of Australia v Burnie Port Corp. Pty Ltd (2000) 101 IR 435 - cited

Australasian Meat Industry Employees’ Union v Belandra Pty Ltd (2003) 126 IR 165 – cited and quoted

Employment Advocate v Barclay Mowlem Construction Ltd (2005) 139 IR 19 - cited

Burnie Port Corp. Pty Ltd v Maritime Union of Australia (2000) 104 FCR 440 - cited

Guidelines for Expert Witnesses in Proceedings in the Federal Court of Australia 19 March 2004

McILWAIN v RAMSEY FOOD PACKAGING PTY LTD & ORS

QUD66 OF 2003

GREENWOOD J

30 JUNE 2006

BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QUD66 OF 2003

BETWEEN:	PETER LESLIE MCILWAIN APPLICANT
AND:	RAMSEY FOOD PACKAGING PTY LTD FIRST RESPONDENT RAMSEY FOOD PACKAGING NO. 2 PTY LTD SECOND RESPONDENT RAMSEY BUTCHERING SERVICES PTY LTD THIRD RESPONDENT RAMSEY FOOD SERVICES PTY LTD FOURTH RESPONDENT
JUDGE:	GREENWOOD J
DATE OF ORDER:	30 JUNE 2006
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

1. The further hearing of the proceeding is adjourned to a date to be fixed to enable the applicant to provide short minutes of order to be made arising out of the findings contained in the reasons for judgment and to hear the parties in relation to further submissions concerning the principles governing the assessment of a compensation component described as general damages in the applicant’s Further Further Amended Statement of Claim and the principles governing whether, and if so, the basis upon which a penalty pursuant to s 298U ought be imposed.

2. The costs of the proceeding are reserved.

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

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QUD66 OF 2003

BETWEEN:	PETER LESLIE MCILWAIN APPLICANT
AND:	RAMSEY FOOD PACKAGING PTY LTD FIRST RESPONDENT RAMSEY FOOD PACKAGING NO. 2 PTY LTD SECOND RESPONDENT RAMSEY BUTCHERING SERVICES PTY LTD THIRD RESPONDENT RAMSEY FOOD SERVICES PTY LTD FOURTH RESPONDENT
JUDGE:	GREENWOOD J
DATE:	30 JUNE 2006
PLACE:	BRISBANE

REASONS FOR JUDGMENT

INTRODUCTION

Background

1 In this application, the Employment Advocate under the Workplace Relations Act 1996 (‘the Act’) seeks a declaration that each of the four respondents, all alleged to be employers of labour at an abattoir called the ‘South Grafton Abattoir’ engaged in contraventions of s 298K of the Act in two respects. First, in August and September 2002, the First, Third and Fourth Respondents terminated the employment of 12 individuals for a prohibited reason or reasons that include a prohibited reason. Secondly, each of the four respondents between mid‑September 2002 and December 2002 then refused to employ any one of 11 of those individuals, again for a prohibited reason. No allegation of a refusal to employ is made concerning Ms Susan Jane Young.

2 The 12 individuals and their respective employers are these:

Employer	Employee
First Respondent	Terence Anthony Brooks Rodger Charles Campbell Susan Jane Young Paul Gerard Swain
Third Respondent	Stephen Blackadder Alick James Delaforce Gregory Simon Forrest Colin James Hambly Michael Robert McKenzie Paul Francis McKenzie Trevor Glen Moss
Fourth Respondent	John Kevin Young

3 Section 298K provides that dismissal of an employee and refusal to employ a person are two classes of prohibited conduct on the part of an employer if undertaken for a prohibited reason. Section 298L says such conduct is carried out for a prohibited reason if carried out for a reason that the employee or person concerned has, put broadly, joined or become an officer or delegate of an industrial association, secured an entitlement to the benefit of an industrial instrument or order, has participated or given evidence in a particular proceeding or, in the case of an employee who is a member of an industrial association seeking better industrial conditions, is dissatisfied with his or her conditions of employment. The Employment Advocate alleges that each class of conduct was carried out for one or more of these prohibited reasons in the case of each individual. The section identifies other subject matter not relevant to these proceedings.

4 Sections 298K and 298L of the Act lie within Div 3 of Pt A which addresses ‘Conduct by employers’. The immediately relevant provisions of s 298K and s 298L are these:

‘Division 3 – Conduct by employers etc.

SECTION 298K DISMISSAL ETC. OF MEMBERS OF INDUSTRIAL ASSOCIATION ETC.

298K(1) [Prohibited reasons for certain conduct by an employer] An employer must not, for a prohibited reason, or for reasons that include a prohibited reason, do or threaten to do any of the following:

(a) dismiss an employee;

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

(d) refuse to employ another person;

(e) discriminate against another person in the terms or conditions on which the employer offers to employ the other person.’

SECTION 298L PROHIBITED REASONS

298L(1) [Interpretation] 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:

(a) is, has been, proposes to become or has at any time proposed to become an officer, delegate or member of an industrial association; or

…

(h) is entitled to the benefit of an industrial instrument or an order of an industrial body; or

…

(j) has participated in, proposes to participate in or has at any time proposed to participate in a proceeding under an industrial law; or

(k) has given or proposes to give evidence in a proceeding under an industrial law; or

(l) in the case of an employee, or an independent contractor, who is a member of an industrial association that is seeking better industrial conditions – is dissatisfied with his or her conditions; or

…’

5 It will be necessary later in these Reasons to consider the objects of Pt XA, the inter-relationship between Div 2 (directed to ‘conduct’ to which Pt XA ‘applies’) and Div 3 and the jurisprudence concerning the scope and construction of the proscriptions contained in s 298K.

6 Apart from a declaration of a contravention of s 298K of the Act, the Employment Advocate seeks an order imposing on each respondent a penalty pursuant to s 298U(a) of the Act, an order pursuant to s 298U(c) of the Act requiring the respondents to pay the 12 individuals compensation for the affect upon each of them of the contravening conduct and an order in reliance upon s 356(b) of the Act that any penalty imposed upon the respondents be paid to the applicant.

7 Section 298T(2)(d) of Div 6 of Pt XA provides that the Employment Advocate may apply to the Federal Court of Australia for orders under s 298U concerning conduct in contravention of Pt XA. By reason of s 298X, conduct in contravention of s 298K is not an offence under the Act.

8 Section 298U is in these terms:

‘SECTION 298U ORDERS THAT THE FEDERAL COURT MAY MAKE

298U In respect of conduct in contravention of this Part, the Court may, if the Court considers it appropriate in all the circumstances of the case, make one or more of the following orders:

(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 – 300 penalty units; or

(ii) in any other case – 60 penalty units;

(b) an order requiring the person or industrial association to reinstate an employee, or to re-engage an independent contractor;

(c) an order requiring the person or industrial association to pay to an employee or independent contractor, or to a prospective employee or independent contractor, compensation of such amount as the Court thinks appropriate;

(d) an order requiring the person or industrial association not to carry out a threat made by the person or association, or not to make any further threat;

(e) injunctions (including interim injunctions), and any other orders, that the Court thinks necessary to stop the conduct or remedy its effects;

(f) any other consequential orders.’

The Prohibited Reasons

9 The reasons pleaded by the Employment Advocate as the prohibited reasons for carrying out the dismissal conduct and the refusal to employ in respect of each individual are these:

Mr Stephen Blackadder

· On 27 September 1999, Mr Blackadder gave evidence in a proceeding commenced by Mr Swain under the Act in which Mr Swain sought a reinstatement order against the First Respondent, among other orders (s 298L(1)(k)).

· On 18 and 19 January and 17 February 2000, Mr Blackadder prosecuted a proceeding under the Act against the Third Respondent seeking a reinstatement order, among other orders (s 298L(1)(j)).

· On 29 March 2000, Mr Blackadder obtained the benefit of a reinstatement order of the Australian Industrial Relations Commission (‘AIRC’) (s 298L(1)(h)).

Colin James Hambly

· On 21 July 1999, Mr Hambly commenced proceedings under the Act against the Third Respondent seeking, among other things, a reinstatement order.

· On 30 January 2000, Mr Hambly prosecuted that proceeding (s 298L(1)(j)).

· On 14 February 2000, Mr Hambly obtained an order of the AIRC for reinstatement (s 298L(1)(h)).

Paul Gerard Swain

· On 6 May 1999, Mr Swain commenced proceedings under the Act against the First Respondent seeking, among other things, a reinstatement order and prosecuted that proceeding (s 298L(1)(j)).

· On 6 June 2000, Mr Hambly obtained an order of the AIRC for reinstatement (s 298L(1)(h)).

Alick James Delaforce

· On 17 February 2000, Mr Delaforce gave evidence and participated in a proceeding commenced by Mr Blackadder under the Act by which Mr Blackadder sought a reinstatement order against the Third Respondent (s 298L(1)(j)).

· Mr Delaforce was both a member of the Australasian Meat Industry Employees’ Union (‘AMIEU’) and a delegate of the Union at the workplace (s 298L(1)(a)).

· Mr Delaforce was dissatisfied with his conditions and was seeking improved conditions of employment for himself and other employees at the abattoir (s 298L(1)(l)).

Paul Francis McKenzie

· On 23 June 1999, Mr McKenzie proposed to give evidence and participate in a proceeding under the Act commenced by Mr Jason Robertson against the First Respondent seeking, among other things, a reinstatement order (s 298L(1)(j) and (k)).

· Mr McKenzie was a member of the AMIEU (s 298L(1)(a)); and

· Mr McKenzie was dissatisfied with his conditions of employment (s 298L(1)(l)).

Trevor Glen Moss

· Mr Moss was both a member of the AMIEU and a delegate of the Union at the abattoir (s 298L(1)(a)); and

· Mr Moss was dissatisfied with his conditions and was seeking improved conditions both for himself and other employees at the abattoir (s 298L(1)(l)).

Terence Anthony Brooks, Rodger Charles Campbell, Gregory Simon Forrest, Michael Robert McKenzie, John Kevin Young and Susan Jane Young

· In respect of all of these individuals, the prohibited reasons are said to be that each of them was a member of the AMIEU and each was dissatisfied with his or her working conditions and in particular, wage levels paid by the relevant abattoir employer (s 298L(1)(a) and (l)).

In respect of each allegation concerning dissatisfaction with working conditions, the allegation is made against the background of the Union seeking improved conditions for its members.

The Period of the Relevant Events

10 The Employment Advocate contends that although the conduct of dismissal occurred in September 2002, it was carried out for a prohibited reason deriving from a series of events of engagement between Mr Stuart Ramsey as the guiding mind of the employer entities and, in particular, Mr Justin Davis on behalf of the AMIEU, Mr Moss and Mr Delaforce as workplace delegates of the AMIEU and employee members of consultative committees formed to negotiate aspects of working conditions with Mr Ramsey, which occurred over a lengthy period.

11 The applicant contends that Mr Ramsey acquired, reopened and commenced operating the abattoir in April 1998 expressly on the footing that particular workplace arrangements could be negotiated and approved by the AIRC and that Mr Ramsey’s view as to the content and formulation of those conditions would, from time to time as he thought appropriate, endure so as to secure the profitable operation of the abattoir.

12 Participation by the AMIEU in negotiating the structural employment arrangements at the abattoir, participation by employees in the Union as a member or delegate, the expression of dissatisfaction with the content of the conditions of employment, steps taken to oppose approval of an enterprise agreement and steps taken to bring Australian Workplace Agreements to an end, all represented positions taken by particular employees that threatened Mr Ramsey’s perceived criticality of the conditions and arrangements he preferred.

13 The facts therefore which are said to be probative of Mr Ramsey’s reasons for the dismissal conduct are not confined to events immediately proximate to September 2002. The period of enquiry necessarily commences, it is said, in April 1998 when Mr Ramsey sought to establish the foundation employment conditions which influenced events throughout the period leading up to 2001 and throughout 2002. The evidence of those arrangements, the hostility of Mr Ramsey to a contrary view and those articulating it and the events that put Mr Ramsey, the AMIEU and each of the 12 individuals in particular controversy, are said to be facts from which inferences may be drawn of the prohibited reasons. Evidence of these facts are thus said to be admissible as evidence relevant to the proof of the fact in issue, namely, Mr Ramsey’s attitude and reasons for carrying out the conduct.

14 Some of the evidence relied upon by the applicant raises the question of whether evidence of conduct or evidence of a tendency on the part of Mr Ramsey to act in a particular way, or to have a particular state of mind, is admissible for the purposes of s 97 of the Evidence Act 1995 (Cth). Apart from evidence said to be probative of a prohibited reason, the applicant relies upon a statutory presumption by operation of s 298V of the Act as a sufficient discharge of an onus cast upon it to establish, on the balance of probabilities, a contravention of s 298K(1).

15 All of these contentions are relied upon to support the proof of the reasons for the consequential conduct of refusing to employ 11 of the 12 individuals once re‑engagement of the workforce began reasonably quickly after the termination conduct was effected.

16 The respondents challenge the admissibility of much of this evidence going to the historical events. Due to the events mentioned at pars 61 to 81 of these reasons, the parties agreed that objections to evidence would be dealt with in the reasons for judgment. Accordingly, rulings on objections to evidence are dealt with at the conclusion of these reasons as an Appendix.

17 Apart from the contended historical controversy between Mr Ramsey and the AMIEU and those individuals articulating a particular criticism of the employment arrangements, the Employment Advocate contends that Mr Blackadder, Mr Swain and Mr Hambly suffered termination of employment because each of them had sought and obtained the benefit of a reinstatement order by the AIRC arising out of an earlier termination in each case. In a similar sense, Mr P F McKenzie’s proposal to give evidence in Mr Robertson’s reinstatement proceeding is said to be a reason for his dismissal. The applicant contends that the relevant abattoir entity also refused to employ these men during the re-engagement period for the same reason.

A broader SUMMARY OF THE ISSUES

18 The applicant’s case in summary is this.

19 The South Grafton Abattoir is a livestock slaughtering and meat processing facility which, like all abattoirs, exhibits a number of functional task-specific activities two examples of which are activities conducted in the slaughter room (or on the slaughter floor) and tasks performed in the boning room. The field of task-specific activities undertaken at the South Grafton Abattoir have been performed at material times by employees of each of the respondent companies. In or about August and September 2002 the cohort of employees performing these tasks was given notice that the employment of each employee had been terminated due to a stock shortage.

20 Within the cohort of employees dismissed from employment were each of the 12 individuals identified at [2] by reference to the particular respondent employer. The Employment Advocate contends, on the pleadings, that there was no stock shortage sufficient to justify the termination of employment of the cohort including each of the 12 particular individuals. The applicant therefore calls into question the accuracy of the explanation given by the respondent employers for the termination conduct.

21 The applicant contends that a reason or reasons for the termination of employment of the particular 12 individuals was a reason or reasons prohibited by s 298L of the Act and thus a contravention of s 298K(1) arises. In discharging the onus of establishing a contravention of s 298K in respect of each individual, the applicant relies upon s 298V of the Act. The applicant says that all of the elements of s 298V have been established because:

(a) the applicant has made an application under Div 6 of Pt XA;

(b) that Application relates to the statutory conduct (termination and refusal to employ) on the part of each respondent;

(d) if each respondent carried out the conduct for the alleged reason, a contravention of Pt XA would arise by force of s 298K.

Accordingly, a statutory presumption arises by operation of s 298V that the conduct was carried out for that reason unless each respondent company proves otherwise. Since none of the respondent companies have rebutted the presumption, the section, it is said, does its work to establish that the conduct was carried out for a reason alleged. Notwithstanding that the Employment Advocate says it is enough to prove conduct and aver a prohibited reason, the applicant also relies upon material that is said to actually demonstrate a prohibited purpose. Both contentions are made in this case.

22 Section 298V which forms part of Div 6 –‘Remedies for breaches of this Part’, is in these terms:

‘SECTION 298V PROOF NOT REQUIRED OF THE REASON FOR, OR THE INTENTION OF, CONDUCT

298V 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.’

23 Apart from the termination of employment, the applicant contends that once the South Grafton Abattoir re-opened and commenced operations in September 2002, each of the four respondents further contravened the Act by refusing to employ 11 of the dismissed individuals for a reason or reasons identified at [9]. The Employment Advocate contends that although it is not necessary to plead or prove the relevant person sought employment in order to establish a ‘refusal to employ’ for the purposes of s 298K(1)(d), Blackadder, Brooks, Campbell, Delaforce, Forrest, Hambly, M R McKenzie, P F McKenzie, Moss, John Kevin Young and Swain all sought employment at the South Grafton Abattoir in the period September 2002 to December 2002 and all were refused employment for a prohibited reason.

24 Similarly, the Employment Advocate contends that in respect of that conduct, the elements of s 298V have been satisfied and a statutory presumption arises which has the effect of discharging the onus of proof and thus establishing this further contravention. The evidence is said to establish a contravention in any event.

25 In answer, the respondents say this.

26 Because the starting point of an examination of the conduct of the respondents involves conduct concerning the termination of the entire cohort of employees at the South Grafton Abattoir at the material time, the respondents contend the termination conduct does not involve conduct directed to any one employee or a class of employees. Therefore, there is no conduct by an employer which can be characterised as discrimination or victimization of that employee. In other words, there is no conduct by a respondent employer qua an employee which attracts the operation of s 298K of the Act. That is said to be the end of the matter.

27 Section 298K, it is contended, must be read subject to the objects of Pt XA contained in s 298A and particularly s 298F which has the effect of importing into s 298K a central notion of discrimination against a person or relevantly identified class of persons as compared with others. Since the termination was ubiquitous, there was no threshold of discrimination or differential treatment. Accordingly, the statutory presumption has no role to play in the circumstances of this case. The Employment Advocate must discharge an onus of establishing the colour of the ‘ingredients’ (to use a term adopted by Dixon J in another context in The King v Hush; Ex parte Devanny (1932) 48 CLR 487 at p.507) of s 298K which involves establishing facts which would support an hypothesis that the conduct occurred for a reason or reasons falling within s 298L and only then could the presumption contained in s 298V arise or have a role to play.

28 The notion that the Employment Advocate might prove the conduct and simply allege a reason or reasons falling within s 298L and then stand on the presumption as a proper discharge of the onus of proof fails, it is said, to understand the proper role of s 298V of the Act.

29 In relation to the second contravention based upon the alleged refusal to employ 11 of the 12 individuals, the respondents say that as to Blackadder, his employment was continued notwithstanding the alleged dismissal. As to Brooks, Campbell, Delaforce, Forrest, M R McKenzie, P F McKenzie, Moss and J K Young, the respondents say that each of those former employees was offered re-employment and in some cases the offers of re-employment were taken up and in other cases refused. In the case of Hambly, the respondents say that he was not offered further work after the termination, for reasons related to his work performance and conduct. As to Swain, the respondents plead that he contacted the abattoir by letter dated 12 September 2002 and again on or about 18 January 2003 and was advised that no work was then available. Accordingly, the respondents deny a refusal to employ.

30 The respondents say that upon a proper construction of s 298K in respect of the refusal to employ allegation, there is no demonstrated discrimination and thus no operation for the section or the statutory presumption contained within s 298V. The respondents say that the applicant bears an onus of showing there was a vacancy to be filled before a refusal to employ can be made out.

31 In response to the respondents’ pleading concerning the circumstances of offers of work and acceptance of work, the applicant says that having regard to all the facts and circumstances of those offers, the offers were not genuine and therefore there was a continuing refusal to employ. As to the question of whether s 298K has no operation in circumstances where an employer terminates a cohort of employees, the Employment Advocate says that notwithstanding that all employees were terminated, it remains possible that a group of persons within the cohort of employees were subjected to conduct for a reason or reasons prohibited by s 298L. Section 298K, on its face, contemplates that there might be reasons which fall outside s 298L which might affect every employee but equally there might be reasons within s 298L in respect of particular employees which are an operative reason. The applicant says that since the employer is in the best position to know the field of reasons for the conduct and the operative reasons, the policy of the legislation is to invoke a statutory presumption once conduct for a reason constituting a contravention is alleged thus placing an onus upon an employer to rebut the presumption by adducing evidence of the reason.

32 In addition to these matters, the respondents plead a denial that there was no stock shortage sufficient to justify the termination conduct, plead a denial that the Third Respondent employed any employees at the material time and plead that the requirement of the Respondents for labour was dependant upon the requirements of the operator of the South Grafton Abattoir, Ramsey Food Processing Pty Ltd (‘RFP’), for the acquisition of labour hire services from the Respondents and that RFP had no requirement for labour owing to the stock shortage. As to affirmative matters pleaded by the Respondents, no evidence was called by the Respondents to establish the facts pleaded. Counsel for the Respondents cross‑examined two of the applicant’s witnesses, Mr Davis and Mr Broadway and none of the former employees. As to denials, the applicant was put to proof.

the various applications for leave to amend and motions seeking particular orders

60 Before dealing with an assessment of the evidence called by the applicant, objections to evidence, the submission by the respondents of ‘no case to answer’ at the conclusion of the applicant’s evidence and case, the election to which the respondents were put in making the ‘no case to answer’ submission and the questions of law arising in the action, it is necessary to deal with the matters which resulted in amendments to the pleadings and applications made by the parties in the course of the trial notwithstanding the very extensive case management of the litigation.

61 These proceedings were commenced on 9 May 2003 and have been the subject of extensive case management. Some aspects of the interlocutory steps (but not all) are described at [38], pages 29-33 of McIlwain v Ramsey Food Packaging Pty Ltd [2005] FCA 1233 based upon a chronology put before me by the respondents as part of the respondents’ application for non-party discovery and leave to issue subpoenas.

62 All of these steps demonstrate that the factual and legal controversy has been framed over a considerable period with many interlocutory orders directed to joinder of parties, amendments to the Statement of Claim, the filing of defences, amendments to the Defence, the provision of particulars, verified discovery, inspection, various interlocutory applications and the preparation of statements in support of the claim, statements in response and statements in reply. A considerable amount of time, energy, cost and intellectual effort has been directed by the parties to joining issue on the factual and legal controversy with extensive recourse to Court supervision and Court engagement.

Splitting of Issues

63 The trial of the action was to commence on Monday, 10 October 2005. However, approximately one week prior to the trial a question arose as to whether the trial would proceed on the issue of the alleged contravention with a separate hearing on the issue of compensation. As to the question of bifurcating the issues, I indicated that I was not prepared at that late stage to separate issues and required the applicant to provide particulars of the compensation claim. The preparation for trial throughout proceeded on the footing that particulars of the compensation claim would be provided to the respondents prior to trial. By consent, the trial was adjourned to 12 October to enable particulars of the compensation claim to be provided to the respondents, discussions to take place between the parties as to a proposed Reply by the applicant to the Amended Defence of the respondents and to deal with objections to evidence with the trial to commence on Monday, 17 October.

Leave to Deliver a Reply

64 On Wednesday, 12 October the applicant brought on a motion seeking leave to deliver a Reply which sought to do two things. First, to plead material facts in response to paragraph 130 of the Amended Defence on the part of the respondents which sought to answer the allegations in respect of Brooks, Campbell, Delaforce, Forrest, M R McKenzie, P F McKenzie, Moss, John Kevin Young and Susan Jane Young that these former employees had been offered or had accepted or rejected offers of employment at material times. Secondly, the Reply sought to raise the proposition that arising out of factual controversy reflected in the statements exchanged between the parties, the conclusion was open that the respondent had engaged in a further contravention of s 298K by altering the position of an employee to the employee’s prejudice within the scope of s 298K(1)(c).

65 The essence of the Reply was to put in issue, as counsel for the applicant put it, ‘whether or not what was offered to the named persons was, in fact, a genuine offer and whether what was offered amounted to a breach [of the Act] or not’ (page 9, line 27 of the Transcript). After hearing counsel for the respondents opposing leave, I stood the matter down briefly and took the view that the responsive matters the subject of the Reply were within the scope of the existing factual controversy, that no prejudice was demonstrated to the respondents in giving leave and that the question of whether a further contravention based upon s 298K(1)(c) arose on the facts before the parties arising out of the statements was a conclusionary matter which could properly be raised. I gave short Reasons about those matters (McIlwain v Ramsey Food Packaging Pty Ltd [2005] FCA 1445) but directed that the third ground of contravention should be pleaded by way of a Further Further Amended Statement of Claim (‘F F A S C’).

F F A S C

66 Counsel for the applicant and the respondents took the view that the trial of the action would be concluded within two weeks commencing Monday, 17 October and accordingly the commencement of the trial was adjourned until 17 October to enable the F F A S C to be formulated by the applicant and served on the respondents during the course of Thursday, 13 October 2005. I made it clear to counsel for the respondents that should the F F A S C raise further material facts which went beyond the scope of the facts raised in the statements exchanged between the parties, I would be willing to hear the respondents in relation to the F F A S C and determine whether the third ground of contravention should properly be the subject of leave in the context of the facts actually pleaded in the F F A S C as it emerged. The F F A S C was also to incorporate proper particulars of the compensation claim.

67 On Monday, 17 October at the commencement of the trial, the respondents opposed leave to amend the Further Amended Statement of Claim in accordance with a proposed F F A S C to introduce the third ground of contravention in reliance on s 298K(1)(c) having regard to what was said to be the proper understanding of the scope and construction of that provision and particularly the meaning of ‘employee’ in s 298K(1)(c).

Notice of Motion by the Respondents

68 In addition however, the respondents, on the afternoon of 14 October, filed a Notice of Motion returnable on what was to be the first day of the trial, Monday, 17 October, seeking orders which went well beyond orders in relation to the proposed additional ground of contravention based upon s 298K(1)(c) formulated in the F F A S C. By the motion, the respondents sought:

(a) an order ‘that certain questions in [the following orders] be heard separately from any further trial in the proceedings’;

(b) an order ‘declaring that a necessary allegation in a pleaded contravention of s 298K of the Workplace Relations Act, 1996 is the fact that the detriment allegedly suffered by the aggrieved person was both a relative and absolute detriment’;

(c) an order declaring ‘that a necessary allegation in a pleaded contravention of s 298K(1)(d) of the Workplace Relations Act 1996 is that the aggrieved person sought employment from the alleged contravener’;

(d) an order declaring ‘that on its true meaning and interpretation s 298K(1)(d) of the Workplace Relations Act 1996 requires only that an employer not refuse to employ a person in the protected category’;

(e) an order declaring ‘that a necessary allegation in a pleaded contravention of s 298K(1)(c) of the Workplace Relations Act 1996 is that the aggrieved person was an employee of the alleged contravener at the time of the alleged contravention”.

69 The Notice of Motion sought an order pursuant to O 20, r 2(1)(a) of the Federal Court Rules (‘F C R’) dismissing the proceedings generally on the ground that no reasonable cause of action was disclosed (par 6 of the motion) and in the alternative, an order pursuant to F C R, O 11, r 16(1)(a) striking out the whole of the F F A S C as disclosing no reasonable cause of action (par 7 of the motion) and in the further alternative an order pursuant to F C R, O 11, r 16(1)(c) striking out the whole of the F F A S C as an abuse of process on the ground that the F F A S C offends F C R, O 11, r 8(1) (par 8 of the motion). Extensive written submissions in support of the motion were provided to the Court.

70 It can be seen that apart from the question arising in connection with s 298K(1)(c) and whether it was appropriate to give leave to further amend the Amended Statement of Claim to allow the applicant to introduce the third ground of contravention having regard to the field of the existing controversy and the extent to which the respondents might suffer prejudice, the substance of the orders sought went to matters central to the factual and legal controversy the very subject of the proceedings and about which the parties had joined issue, participated in case management and directions orders and otherwise prepared the litigation for trial.

71 Senior Counsel for the applicant, Mr Martin SC, said that he was not in a position to properly argue the merits of the motion having only had, in effect, a number of hours to consider the orders sought by the motion. I stood the motion over until the following morning, 18 October but said that I was prepared to hear the respondents immediately on paragraph 5 of the motion which went to the proposed amendment to plead facts giving rise to the third ground of contravention based upon an alleged ‘alteration of the position of an employee to the employee’s prejudice’: s 298K(1)(c).

72 After some argument, counsel invited me to stand the matter down for a short time and upon resuming, counsel for the applicant said that in order to avoid any delay to the trial of the action, the applicant would abandon any allegation of a further third contravention. Accordingly, the two grounds of contravention the basis of the proceedings prepared for trial, namely, alleged contraventions of s 298K(1)(a) and s 298K(1)(d) remained the subject matter of the trial.

73 In relation to the question of the motion generally seeking orders for the striking out of the Statement of Claim and the dismissal of the proceedings at large which was to be heard the following morning, I made observations to the effect that whilst I would hear counsel for the parties on the matter it seemed to me to be an inappropriate way to proceed at trial particularly having regard to the matters referred to at [61] and [62]. In addressing counsel for the respondents in relation to the motion, Mr Hatcher SC, I made these observations:

‘So it seems to me that these questions have been alive to the respondents for a very considerable period of time and could have been and, with respect, should have been the subject of an application for a preliminary determination a long time ago about these matters.

It seems to me to be particularly inappropriate at the commencement of the trial to come and say that if you take the Statement of Claim in terms of the facts pleaded and assume that those facts were established they don’t give rise to a contravention as a matter of construction of the provisions. They seem to me to be submissions that ought to be put at the conclusion of the trial, at the end of the factual controversy when you can say the claim is either sustained or not sustained. But to incur the costs of bringing people to the cusp of the trial and then say, ‘this is all misconceived’, seems to me to be an odd way to approach the determination of justiciable issues in the Court.’ (Transcript; 17 October 2005, page 8, lines 37-47 and page 9, lines 1 and 2).

74 The concern, of course, is that such an application would simply have the effect of delaying the reception of evidence and the trial of the contested questions of fact and law.

Leave to Amend in Terms of the F F A S C

75 On 18 October 2005, counsel for the applicant handed up the further amendments to the Statement of Claim to delete any reference to a third contravention and any reference to a refusal to employ in the case of Susan Jane Young. The F F A S C also pleaded the material facts going to attempts by each of the 11 individuals to seek employment with the respondents. An Amended Reply was also provided to the Court which was responsive to the Amended Defence of the respondents of 22 March 2005. The Amended Reply pleads facts and circumstances directed to demonstrating that any offers of employment made, accepted or rejected by the 11 individuals were not genuine offers and therefore, in the premises, the respondents have refused to employ any one of the 11 individuals.

76 The respondents elected to adjourn generally the notice of motion and indicated that they would probably seek to agitate the motion at the conclusion of the applicant’s case.

77 On the question of whether leave should be given to amend in terms of the F F A S C, counsel for the applicant said that the pleading of the additional facts as particularised raised no new assertions of fact as each set of the particulars was drawn from the material filed by the applicant in the respondents’ possession and was consistent with the material filed in the affidavits of the named individuals (Transcript, page 14, line 44). Also, Mr Hatcher SC conceded that the material relied upon by the applicant was in the affidavits and conceded that if the Reply was putting in issue the genuineness of the offers of employment on the part of the respondents, no new issue was raised (Transcript, page 16, lines 1-3 and 45-47). It seemed to me that if the material facts now being pleaded arose out of the material already available to the respondents and the allegation was confined to that material, no prejudice to the respondents arose by giving leave (Transcript, page 19, lines 15-35). As to the Reply, the applicant’s case on the Reply is that offers pleaded by the respondents nevertheless continued to constitute a refusal to employ during the relevant period because the offers were not genuine (Transcript, page 29 generally).

78 Having heard extensive argument on the proposed F F A S C and the Amended Reply, counsel for the respondents asked for the matter to be stood down briefly. Upon resumption, counsel for the respondents accepted that on the basis of the case put by counsel for the applicant in the proposed F F A S C, the respondents could not say that any material facts were introduced that put the respondents at prejudice in the conduct of the litigation: (pg 34, Transcript, lines 10-30).

79 Accordingly, I gave leave to amend the Statement of Claim in terms of the F F A S C.

Further Amended Defence

80 On 19 October 2005, the respondents delivered a Further Amended Defence to the F F A S C. The Further Amended Defence was not simply responsive to those paragraphs of the F F A S C pleading material facts and particulars going to attempts by each of the 11 individuals to seek employment with the respondents but introduced a range of amendments to the pleading all of which were opposed by counsel for the applicant. Having heard counsel for the applicant extensively on the amendments it seemed to me that the sequence of amendments throughout the pleading could be grouped into categories and I then dealt with the materiality of the amendments, the extent to which those amendments might be prejudicial in the conduct of the applicant’s case, the extent to which the respondents proposed to press aspects of those amendments and the extent to which particulars might be given of a proposed paragraph 12A of the Further Amended Defence to the F F A S C. Each of those matters was resolved in argument before me to the satisfaction of the parties as a result of which I gave leave to amend the Amended Defence and directed the solicitors for the respondents to prepare a properly complying Further Amended Defence to the Further Further Amended Statement of Claim marking up the changes for which leave was given arising out of the argument before me on the proposed Further Amended Defence. That marked up document pursuant to leave given on 19 October 2005 was filed on 26 October and is document 143 on the Court file. The F F A S C was filed in final form on 26 October and is document 142. The Amended Reply was filed on 18 October and is document 141. Leave was given on 18 October to file a Further Further Further Amended Application (‘F F F A A’) which deletes relief in respect of the abandoned third contravention and abandons any claim in respect of Susan Jane Young based upon a refusal to employ. That document is document 139 on the Court file.

Objections to Evidence

81 As a result of the closure of the pleadings, the question of objections to evidence arose. Each party has provided submissions in the form of a schedule of objections to evidence filed by the opposing party identifying each ground of objection. In order to avoid any further delay in the conduct of the trial, the parties were content to reserve rulings in relation to objections to evidence to be dealt with in the judgment and proceed on the footing that although I would be aware of the objectionable material I would, plainly enough, not be influenced by or rely upon the material if I took the view that the objection taken was sound.

No Case to Answer Submission by Respondents

82 That being so, Mr Martin SC opened the case for the applicant. At the close of the applicant’s case, Counsel for the respondents sought to make a submission of no case to answer on the basis that in doing so, no election was being made not to call evidence. As a result, I then invited preliminary argument on the question of whether the respondents ought to be put to an election in making a no case submission. The respondents during the course of the trial had sought to agitate a notice of motion seeking orders dismissing the proceedings generally on the ground that no reasonable cause of action was disclosed, among other orders: see [68] – [71]. Those questions focused upon limitations said to arise out of the formulation of the pleading whereas the no case submission involved a consideration of not only questions of law but also whether an assessment of the evidence adduced by the applicant disclosed a case to answer. Having heard argument on the question of whether the respondents ought to be put to an election, I made a ruling that I would entertain a no case submission but only on the basis that the respondents were put to their election. I said to the parties that I would provide reasons for putting the respondents to an election as a condition of entertaining a ‘no case’ submission, as part of these reasons.

83 Senior Counsel for the respondents was not prepared to make that election. Having determined that matter, Senior Counsel for the respondents indicated that he was not in a position to call evidence from the principal witness for the respondents, Mr Stuart Ramsey. Rather than force Counsel to open the case for the respondents, I granted Counsel the indulgence of adjourning the matter until the following morning. On the following morning, Counsel made an election not to call evidence and opened submissions in support of the ‘no case to answer’ proposition. At the conclusion of submissions in response by Senior Counsel for the applicant, I reserved the matter for determination subject to receiving further submissions from Counsel for the respondents in response to a document of the applicant described as ‘Matters which were the Subject of Submissions [by the respondents] but for which no Direct Evidence can be Found’ (Document 151), by 4 November 2005.

the ‘no case’ to answer submission

84 Order 35, Rule 1 of the Federal Court Rules is the source of the power to entertain a ‘no case’ submission without the need to invoke s 79 of the Judiciary Act 1903 (Cth) (Australian Competition and Consumer Commission v Amcor Printing Papers Group Ltd (2000) 169 ALR 344 at [60] per Sackville J). The general rule of practice is that a ‘no case’ submission will not be entertained or, alternatively, no ruling made unless the moving party elects to call no evidence (Protean (Holdings) Ltd v American House Assurance Co. [1985] VR 187; Stevenson v Barham (1977) 136 CLR 190 at page 202, per Mason and Jacobs JJ) although, the general rule is not an ‘inflexible rule’ (Compaq Computer Australia Pty Ltd v Merry & Ors (1998) 157 ALR 1 at page 7) and not necessarily the ‘right course in every kind of case’ (Parry v Aluminium Corporation [1940] WN 44 at 46 per Goddard LJ). The general rule must ‘give way to particular circumstances’ in the exercise of the discretion (Stevenson v Barham (supra) at page 203, per Mason and Jacobs JJ) and ultimately the matter is one for the discretion of the judge having regard to the just and convenient disposition of the litigation (Protean at page 238 per Tadgell J) or, as French J observes, a function of judicial case management conditioned by the circumstances of the case (J‑Corp Pty Ltd v Australian Builders Labourers Federated Union of Workers (Western Australian Branch) & Ors (No. 2) (1992) 38 FCR 458.

85 Nevertheless, the generality of the usual practice is well recognised and approved by the High Court (Stevenson v Barham (supra) at page 202; Tozer Kemsley & Millbourn (Australasia’s Asia) Pty Ltd v Collier’s Interstate Transport Services Ltd (1955 – 1956) 94 CLR 384 at pg 402 per Fullagar J), recognised by the Federal Court (James & Ors v Australia and New Zealand Banking Group Ltd (1985–86) 64 ALR 347 per Toohey J at pg 400 (Appendix); Compaq v Merry (supra) at pgs 6 and 7) and applied in State superior courts (see the discussion of the authorities by Finkelstein J in Compaq v Merry (supra) at pages 6 and 7).

86 The general rule recognises the undesirability of the judge embarking upon an assessment of the evidence and particularly the reliability of witnesses twice in the one proceeding, the importance of avoiding a delay in the conduct of the trial and the utility of avoiding a second trial if a ‘no case’ submission upheld by the trial judge with judgment for the respondent is set aside upon appeal. If the ‘no case’ submission turns solely on a question of law or jurisdiction (Stevenson v Barham (supra)), or the cause of action relied upon by the applicant involves an allegation of fraud or allegations analogous to fraud (ACCC v Amcor (supra)), the respondent (defendant) ought, as a matter of discretion, not be put to an election. If however, the submission involves taking the totality of the evidence of the applicant, assessing that evidence at its highest for the applicant and dealing with a contention by the moving party that the evidence does not support the causes of action pleaded or, alternatively, where it is contended that there is some evidence to support the plaintiff’s claim but the evidence is sufficiently unreasonable that it should be dismissed without calling upon the respondents to adduce evidence, there seems no relevant point of departure from the application of the general rule that the respondents ought to make an election to adduce no evidence before being given leave to make the submission of ‘no case’ to answer (see Residues Treatment Trading Co. Ltd v Southern Resources Ltd (1989) 52 SASR 54 at page 68 per Perry J.

87 In this matter, the contention of the respondents of ‘no case’ involves an assessment of all of the applicant’s evidence to determine whether the causes of action are established, what inferences might properly be drawn from the facts, whether the evidence of Mr Davis and answers given in cross examination ought to be accepted as to the attitude of the AMIEU in responding to the notices of a stock shortage and whether that conduct reflects an acceptance of a stock shortage, whether the evidence of an expert, Mr Broadway (and his report) ought to be accepted and if not, to what extent can statistical data contained in the report be relied upon, an assessment of what construct applies to the operation of the relevant sections of the Act relied upon by the applicant and in having regard to the differing contentions, whether the evidence establishes the case contended for by the applicant.

88 The case also involves an assessment of the facts and circumstances concerning 12 individuals and a consideration of each of the factors specifically relevant to each individual. Further, the respondents sought to bring on a notice of motion described at [68] during the trial period notwithstanding the extensive case management of the matter, leading to my observations at [73]. Although the invitation by the respondents to consider that notice of motion does not bear directly upon the question of whether the respondents ought to be put to an election in making a ‘no case’ submission, interruption to the conduct of the trial and the reception of evidence is an important matter. It seemed to me that no useful purpose of any kind would be served by entertaining a ‘no case’ submission involving a consideration of all of the matters I have mentioned without putting the respondents to an election. The inconvenience of assessing all of those matters, ruling upon the question and then receiving evidence from the respondents (if that course emerged) on all matters in controversy and then embarking upon a second assessment of all the evidence seemed to me entirely inappropriate.

89 Put simply, the parties came to a case managed trial to have a trial and hear all the evidence once. If the respondents wish to contend, in the circumstances of these issues between these parties that ‘no case’ to answer arises on the evidence and as a matter of law, the fair and just disposition of the litigation required the orthodox application of the general rule. No special or differentiating circumstance was identified by the respondents to displace the orthodoxy of the general rule (see Prentice v Cummins (2002) 124 FCR 67 at pgs 93, 94 and 95 and The Trustees of the Property of Cummins v Mary Cummins [2006] HCA 6).

90 In this case, the respondents were provided with an opportunity to consider the question of the election in a measured way. Rather than require counsel for the respondents, Mr Hatcher, to open his case, upon ruling that an election would be required (and upon Mr Hatcher indicating that the respondents were not prepared to make that election), I adjourned the conduct of the trial until the following morning as Mr Hatcher’s principal witness was not available. Upon the resumption of the hearing the next morning at 10.15am, Mr Hatcher made the election.

91 Mr Hatcher, having made the election, made extensive submissions in support of the application. Counsel for the applicant responded and Mr Hatcher made submissions in reply. In dealing with the disposition of the matter, I propose to review all of the evidence and the issues with a view to making final dispositive determinations on all matters. In James v ANZ Bank (supra), Toohey J made these observations at pg 400:

‘If a defendant elects not to call evidence, the judge has before him all the evidence upon which he is called to make a decision. Any distinction between the role of the judge in ruling on a no case submission and the role of the judge as an arbiter of fact becomes largely illusory.’

And in Prentice v Cummins (supra), Sackville J made these observations at [110]:

‘In Rasomen Pty Ltd v Shell Co. of Australia Ltd (1997) 75 FCR 216, the Full Court held (at 228) that in addressing a no case submission the function of a judge sitting alone is no different from that which has to be performed by a judge who has heard all the evidence of the parties in the usual way and who has to give final judgment. In particular, where the moving party (in this case the respondents) contends that the evidence does not give rise to the inferences of fact alleged by the opponent (in this case the Trustees), it is appropriate for the trial judge to decide what inferences he or she would draw from the evidence and to act on those conclusions, if necessary to determine finally the issues in the case: Australian Competition and Consumer Commission v Amcor Printing Papers Group Ltd (2000) 169 ALR 344 at 360.’

92 Accordingly, I propose to address the totality of the evidence, examine the inferences that are open on the evidence, determine whether any inferences can be drawn from the failure by Mr Ramsey to give evidence, assess the submissions put to me concerning the evidence of Mr Davis and Mr Broadway and make dispositive findings. A further question is the extent to which inferences might be drawn from the failure of Mr Ramsey to give evidence in circumstances where the respondents have been put to an election. Since the ‘no case’ submission rests on the grounds I have identified, ‘… it is difficult to understand, as a matter of principle, why, in such a case, once the respondents have made the election not to call evidence, the material to be taken into account should not include any inferences that may be available on the principle of Jones v Dunkel (1959) 101 CLR 298, by reason of the failure to call evidence’: Prentice v Cummins (supra)per Sackville J at [114]. Nevertheless, I propose to analyse the evidence adduced by the applicant, determine what inferences might be drawn from that evidence and determine whether the statutory presumption conferred by s 298V operates. I will then consider, additionally, whether the failure to call evidence might be taken into consideration. In The Trustees of the Property of Cummins v Mary Cummins (supra) the High Court in considering the inferences drawn by Sackville J in Prentice v Cummins (from which the appeal came), was invited to consider the applicability of the reasoning that inferences are available to be drawn by reason of the application of the principles in Jones v Dunkel when the party against whom those inferences might be drawn has elected to adduce no evidence in its case. Their Honours found it unnecessary to embark upon that matter as Sackville J did not err in putting his conclusion on its primary basis unassisted by Jones v Dunkel.

the evidence of the applicant

93 Each of the former employees has filed an affidavit in the proceeding. None of the former employees were required for cross‑examination in the course of the applicant’s case. Their evidence is unchallenged and I accept it. The evidence is contained in the affidavit of Blackadder (Exhibit 6), Brooks (Exhibit 7), Campbell (Exhibit 8), Delaforce (Exhibit 9), Forrest (Exhibit 11), Hambly (Exhibit 12), M R McKenzie (Exhibit 13), P F McKenzie (Exhibit 14), Moss (Exhibit 15), Swain (Exhibit 17), J K Young (Exhibit 18), S J Young (Exhibit 19). In addition, there is an affidavit by Justin Davis who is a former Assistant Secretary of the ‘Newcastle and Northern Branch of the AMIEU’, an organisation of employees registered under the Act (‘the Federal Union’) and a former Assistant Secretary of the ‘AMIEU Newcastle and Northern Branch’, an organisation of employees registered under the Industrial Relations Act 1996 (NSW) (‘the State Union’).

94 There is also an affidavit by Paul Brown who is a Union organiser with each of the two Unions described in [85] and an affidavit by Kathleen May Evans, the Secretary of the Federal Union. Neither Mr Brown nor Ms Evans were required for cross‑examination. Their evidence is unchallenged and I accept it.

95 Further, there is an affidavit from John Graham Broadway exhibiting a report in which Mr Broadway seeks to express expert opinion based upon analyses of particular data to test whether there was, in the relevant catchment area, a shortage of stock for slaughter in the period leading up to the closure of the plant. The report seeks to address trends emerging from data in the period 13 September 2002 to 17 January 2003 concerning the profile and characteristics of the cattle slaughtered and processed at the abattoir. As to the evidence of Mr Davis, I accept his evidence and on the important question of the cross‑examination of Mr Davis concerning the issue of the stock shortage and the re‑engagement of workers, I will deal with that evidence in the course of dealing with those topics.

96 The respondents have made a number of objections to paragraphs of all these affidavits and in the case of Mr Broadway, the respondents say that no reliance should be placed upon any expression of opinion on his part on the ground that the report fails to meet the requirements of the Federal Court Practice Direction for the giving of expert evidence, that the report fails to properly deal with sources of information and that Mr Broadway’s reliance upon those sources and the formulation of the report is essentially a piece of advocacy on behalf of the applicant rather than an independent report provided to the Court to assist the Court in the determination of matters in issue.

97 As I indicated at [81], the parties were content to reserve rulings in relation to objections to evidence to be dealt with in the judgment on the basis previously indicated. The position concerning the evidence of Mr Broadway is, however, dealt with in the body of these reasons. I propose to now deal with the evidence.

the evidence relied upon by the applicant

98 I find the facts to be these.

The Industrial Arrangements with Employees Generally

99 For many years, R J Gilbertson Pty Ltd (‘Gilbertson’) owned and operated the South Grafton Abattoir. In December 1997, Gilbertson closed the abattoir asserting failing profitability and substantial accumulated losses.

100 In approximately April 1998, the abattoir re-opened under new ownership and under the operational governance of Mr Stuart Ramsey acting on behalf of entities including Ramsey Food Packaging Pty Ltd (‘Ramsey Packaging’), Ramsey Butchering Services Pty Ltd (‘Ramsey Butchering’) and Ramsey Food Services Pty Ltd (‘Ramsey Services’).

101 Prior to closure, Gilbertson had operated the abattoir in accordance with a ‘certified agreement’. The parent award for the purposes of the certified agreement was the Butchers’ Wholesale (Newcastle and Northern) Award, a New South Wales State Award (‘the State Award’).

102 Apparently, with a view to achieving greater flexibility in the use of labour than Gilbertson had enjoyed, Stuart Ramsey, prior to re‑opening the abattoir, participated in exchanges commencing in March 1998 with Ms Kathleen Evans, Secretary of the Newcastle and Northern Branch of the AMIEU registered under the Workplace Relations Act 1996 concerning a possible enterprise agreement with the Ramsey employer entities.

103 The Union proposed certain terms, a formulation for the operation of an incentive or ‘tally’ system of supplemental remuneration and conditions drawn from the State Award all of which would be consolidated and submitted to the New South Wales Industrial Relations Commission for ratification.

104 No agreement was reached.

105 Rather, Ramsey Packaging, Ramsey Butchery and Ramsey Services entered into a series of Australian Workplace Agreements (‘AWAs’) with their employees at the various functional levels of operation of the abattoir.

106 There are many functional activities and a corresponding demarcation of tasks within an abattoir but two of the major functional activities occur on the slaughter floor where an animal is killed and dressed and in the boning room where meat is taken from the bones. Some boning tasks are undertaken within the slaughter room. One such task is the removal of meat from the bones from the neck to the ribs, a task described as ‘hot neck boning’. In each section, employees are allocated to work stations and the carcass is transported to the work station by a moving chain. The number of cattle processed in a day, the speed of the chain and the number and allocation of employees to particular work stations on the chain will largely determine the daily production of product and influence the remuneration of employees.

107 The daily remuneration of employees on the slaughter floor and in the boning room is made up of a wage component and, importantly, an incentive payment based on a ‘tally system’. Under the tally system, each slaughter person is a member of a team working on the ‘slaughter floor’ or in the ‘slaughter room’. ‘Tally’ means the minimum number of cattle to be processed by each slaughter person each day. Under the prevailing State Award, each beast was allocated a unit value irrespective of the weight of the animal. The unit value was 1 unit for each beast. The daily tally or required slaughter ‘quota’ was 23.1 units (beasts) for each slaughter person. Tally slaughtering for the South Grafton Abattoir is nominally 19 beasts and therefore 19 units but supplemental units due to the advantage of mechanical aids for workers yields minimum beasts for tally of 23.1. Every beast slaughtered in excess of the tally, attracted a payment called ‘overs’ at a rate of 150% of the daily unit rate. Once the number of beasts slaughtered exceeded 46.2 (in unit value), ‘overs’ would then be calculated at 200% of the daily unit rate (‘double overs’). Every member of the team on the slaughter floor had an incentive to maximise the team’s aggregate ‘overs’.

108 A typical calculation of daily tally entitlements for slaughter persons would be this.

Example

The number of slaughter persons on a team is, for example -	17
Number of cattle processed across all weight ranges by the team	698
Number of equivalent units	698
Minimum number of cattle to be processed per person per day	23.1 units/person
Slaughter person weekly wage	$477.60
Daily wage payment ($477.60 divided by 5)	$95.52 per day
The daily rate per unit constitutes $95.52 divided by 23.1 units	$4.14
All units processed over 23.1 are paid at 150% (subject to any qualifying 200% units) of $4.14, namely	$6.20
The slaughter team (17) processes 698 beasts (units)	total team units
The total units processed per person are the team units (698 units) divided by 17	41.06 units/person
Total units per person (41.06) minus minimum tally units (23.1) constitutes ‘overs’ of 17.96 units per person	17.96 ‘overs’
17.96 units multiplied by the ‘overs’ rate of $6.20 constitutes an amount earned in ‘overs’ per person of	$111.35 ‘overs’

109 Similarly, employees working in the boning room participated in a tally system. Units would be allocated according to weight ranges for sides of cattle with heavier sides attracting greater units. An example of unit allocations for boning room purposes is this.

Example

Weight Ranges of Cattle Sides	Units of Tally determined by the Award	Postulated Number of Sides Processed for each Weight Range	Total Number of Units
Less than 40kg	2.190	70	153.3
41-50kg	2.190	262	573.78
51-60kg	2.190	524	1147.56
61-70kg	2.190	276	604.44
71-80kg	2.190	118	258.42
81-90kg	2.190	48	105.12
91-100kg	2.415	40	96.6
101-110kg	2.415	58	140.07
111-114kg	2.415	0	0
115-136kg	2.596	0	0
137-159kg	2.776	0	0
160-182kg	2.957	0	0
183-204kg	3.002	0	0
Over 204kg	3.137	0	0
Total		1396	3079.29

110 Once the total units of the boning team has been calculated according to the weight ranges, a similar methodology would apply. For example:

Example

Number of boners in team	22
Minimum number of units per person per day	61.54
Number of units processed by the team	3,079.29
Weekly wage for a boner	$456.00
Daily wage payment ($456.00 divided by 5)	$91.20
The daily rate per unit constitutes $91.20 divided by 61.54 units	$1.48
All units processed over 61.54 are paid at 150% of $1.48, namely -	$2.22
The boning team (22 boners) processes 3,079.29 units
The total units processed per person are the team units (3079.29 units) divided by 22	139.96 units/person
Total units per person (139.96) minus minimum tally 61.54 constitutes ‘overs’ of 78.42 units per person	78.42 ‘overs’
78.42 units multiplied by the ‘overs’ rate of $2.22 constitutes an amount earned in ‘overs’ per person of -	$174.09 ‘overs’

111 The methodology for the calculation of ‘overs’ and particularly the number of units to be attributed to a beast would determine the daily supplemental incentive payment by way of tally to be earned by each slaughter person and each boning person.

112 On 13 May 1998, Ms Evans on behalf of Union members employed at the abattoir who had requested the AMIEU to act as their bargaining agent wrote to the Employment Advocate opposing registration of each AWA on the ground that the tally system under the AWA allocated tally units by weight range with lower unit values for beasts in the weight ranges typically slaughtered and boned at South Grafton Abattoir (and therefore producing lower incentive payments as compared with the award). Two further matters of concern were, no wage increases above the weekly wage for each classification for the life of the AWA and lower shift allowances.

113 The Employment Advocate referred each AWA to the AIRC for an approval hearing. On 19 August 1998, Ms Evans wrote to Mr Ramsey noting Mr Ramsey’s position that he would shut the abattoir if the AWAs were not approved. Ms Evans suggested talks aimed at creating a single collective agreement. Mr Ramsey responded requesting the names of Union members and Ms Evans declined to provide those details as the Union was proposing a negotiated certified agreement and not a role as a bargaining agent requiring disclosure of each ‘principal’ employee.

114 The AWAs are all in a similar form. The details of each AWA concerning the individuals whose circumstances are in issue in these proceedings, are these:

Employee	Employer/Respondent	Position	AWA Date
Stephen Blackadder	3R - Ramsey Butchering	Boner	29/04/98
Terrance Brooks	1R - Ramsey Packaging	Slicer	March 1998
Rodger Campbell	1R - Ramsey Packaging	Loader of Meat progressing to Boner (on the Slaughter Floor)	March 1998
Alick Delaforce	3R - Ramsey Butchering	Boner	April 1998
Gregory Forrest	3R - Ramsey Butchering	Boner	March or April 1998
Colin Hambly	3R - Ramsey Butchering	Slicer	April 1998
Michael McKenzie	3R - Ramsey Butchering	Boner	April 1998
Paul McKenzie	3R - Ramsey Butchering	Boner	April 1998
Trevor Moss	3R - Ramsey Butchering	Boner	April 1998
John Young	4R - Ramsey Services	Slaughter Person	April 1998
Susan Young	1R - Ramsey Packaging	Labourer	April 1998
Paul Swain	1R – Ramsey Packaging	Boner	No AWA entered into

115 All of these individuals had previously worked at the abattoir for Gilbertson as reflected in the following Schedule:

Work History at South Grafton Abattoir		during Gilbertson’s ownership	during Ramsey Group’s ownership
1	Stephen Bruce Blackadder	1986: meat packer early 1990s: boner in the big boning room in the early 1990s. (NOT Hotneck boning)	Boner
2	Terrence Anthony Brooks	Butcher	Obtained a permanent position at the abattoir when the Ramsey group of companies took over the abattoir in 1998. He applied for and obtained a position there as a slicer.
3	Rodger Charles Campbell	Commenced as a loader of meat but progressed to hot neck boning on the slaughter floor.	Continued hot neck boning when the abattoir resumed under the Ramsey Group.
4	Michael Robert McKenzie	1983 – commenced as a boner and worked mostly in the boning room	Continued
5	Paul Francis McKenzie	1987-1997: boner	Boner
6	Trevor Glen Moss	1992-1997 – boner	boner
7	Gregory Simon Forrest	Commenced 1994. started as a labourer and later became a boner	Boner. Packing duties (after injury) April – August 2002; Picking up bones and fat scraps from the floor and pushing beef along the rails.
8	Colin James Hambly	From October 1978	Slicer
9	Alick James Delaforce	July 1980: Labourer 1991: Boner	Boner
10	Paul Gerard Swain	1991-1997: boner (NOT hot neck boning)	Boner
11	John Kevin Young	Slaughterman Knockdown shackler	Unspecified employment
12	Susan Jane Young		full time labourer

116 In May 1998, Justin Davis attended the abattoir and discussed continuing superannuation arrangements with the workforce. At that time, Mr Davis provided workers with a form to sign appointing the AMIEU as a bargaining agent on behalf of employees for the purposes of s 170VK of the Workplace Relations Act. 96 employees signed the appointment form including Brooks, Campbell, S J Young, J K Young, Forrest, Moss, M R McKenzie and P F McKenzie.

117 On 17 and 18 September 1998, the AIRC heard argument on the question of whether the Commission ought to approve the AWAs. The AWAs had been referred by the Employment Advocate to the AIRC because of concerns that the AWAs failed to pass the ‘no‑disadvantage test’ as compared with the relevant award. Mr Davis appeared as bargaining agent and represented the Union and a number of Union members who had signed the appointment form. The form was tendered at the hearing and a copy was given to Mr Ramsey’s representative. Mr Davis made submissions to the AIRC and adopted the reservations expressed by the Employment Advocate. The Commission noted that the AWAs were in the same terms and involved three different employer entities, although members of the one group.

118 The Commission concluded that because the tally system adopted by the AWAs was more disadvantageous to employees than the relevant award with a follow through effect upon benefits calculated on actual income such as long service leave, the AWAs did not satisfy the no‑disadvantage test whether compared directly with the relevant award or certain undertakings offered by the employer group. Notwithstanding that finding, the Commission was then required to consider whether it was nevertheless ‘not contrary to the public interest’ to approve the AWAs.

119 The Commission noted the need for the enterprise in the local area, approval of the AWAs would assist employment at the enterprise, an economic need for the employer to conduct the enterprise on the basis of the AWAs, the employer’s statement that the enterprise would not re‑open without the economic benefits conferred by the AWAs and that approval of the AWAs would assist a framework for cooperative workplace relations. Although the Commission discounted aspects of the argued economic need and the concern about not re‑opening without the AWAs, the Commission found on 23 October 1998, that notwithstanding the disadvantage arising out of the comparative analysis, it was not contrary to the public interest to approve the AWAs coupled with the particular undertaking offered by the employers. Those undertakings were that if the State Award proved to be the relevant award for the non-disadvantage test, the employer entities would pay shift allowances to shift work employees at no less than the rate prescribed by the State Award and, alternatively, if the Federal Award proved to be the relevant award, the employers would pay those allowances in accordance with the Federal Award provisions.

120 Each AWA had a nominal term of three years from, by and large, the end of April 1998 although each AWA would remain in place after the date of nominal expiry until such time the AWA was replaced or terminated.

121 In October 2000, Mr Davis formulated a letter for Mr Moss to send to the Employment Advocate making enquiries as to the date of expiration of his AWA. The response from the Employment Advocate in early November 2001 provided a template for attachment to a circular for distribution to workers at the abattoir inviting workers to appoint the AMIEU and Mr Davis as a bargaining agent with the Ramsey employer entities under s 170VK of the Workplace Relations Act. The form was described as an ‘Important Notice to the Employees of the Ramsey Group of Companies’ and asked the question, ‘Who will bargain for you when your AWA expires?’ The copy of the notice/circular attached to Mr Davis’s affidavit is dated 29 January 2001.

122 A reference to Mr Moss’s name in the letter from the Employment Advocate was not deleted. 100 copies of the circular were given by Mr Davis to Mr Delaforce and Mr Moss for circulation to employees. As the nominal expiry date of the majority of the AWAs approached, Mr Davis made frequent visits to the abattoir, met workers, consulted with Union delegates, Jim Delaforce and Trevor Moss, and engaged in meetings with groups of employees including Stephen Blackadder and Colin Hambly.

123 On 15 February 2001, Stuart Ramsey convened and addressed a meeting of employees at the abattoir. Mr Ramsey observed that many employees apparently believed a new agreement would be in place during April 2001 but said the new agreement would not be proposed until October. The six month delay was attributed to the conduct of the AMIEU and Mr Davis opposing the approval application concerning the AWAs before the AIRC the subject of the decision on 23 October 1998. The three year term would thus expire in late October 2001.

124 On 14 February, the day before the meeting, Mr Davis attended the abattoir for the purposes of conducting a WorkCover safety inspection. Mr Ramsey contextualised the misunderstanding of the abattoir workers concerning the possible start date of a new agreement during April in these terms:

‘That slimebag that was here yesterday, he opposed it before. If he hadn’t opposed us it would be up in April so it cost us too much money to fight them so that’s where your damn rises went.’

125 The meeting on 15 February was an important one. The meeting took place in circumstances where Mr Ramsey understood the employees believed a new agreement would be forthcoming between the employer entities and the workforce in April. Mr Ramsey took the opportunity not only to explain the October timing rather than April but also to ex temporise his views concerning preferred elements of the relationship with the workforce, his attitude to the Union and those factors which ought to influence a new arrangement for later that year in October.

126 Mr Ramsey spoke of the need to avoid a ‘you’ and ‘us’ attitude, expressed strong reservations in strident language concerning the role and conduct of Mr Davis in handing out Union forms and expressed his acceptance of employees signing those forms. As to the role of the Union, Mr Ramsey said, ‘… but if you want to negotiate with us and have some meaningful negotiations, the greater would be advised not to be a member of the Union I’d say … all he (Davis) has done at this stage is cost us money’.

127 Mr Ramsey expressed further criticisms of Mr Davis and said, ‘… now with this from now on, we’ll be taking the tally of two boners off. If we’ve got 22 up, will only bone enough for 20. That fella comes back on here again, there’ll be less again’. In other words, even though the boning team might comprise 22 boners, the number and weight of sides would be controlled so that the total units available to the team would equate to 20 boners and if Mr Davis was to come back on site, ‘… there’ll be less again’.

128 In Mr Ramsey’s view, the Union had cost the employer group $500,000.00 and tally entitlements would have to be managed by controlling the throughput of sides. Mr Ramsey said, ‘If you didn’t have that arsehole coming in here … we wouldn’t have any trouble’.

129 In an apparent contradiction to his earlier stated position of being relaxed about employees signing forms circulated from the Union, Mr Ramsey also said, ‘No need for you blokes to be members’. Leaving aside the unfortunate vituperative language, Mr Ramsey’s advice to the employees was this [paraphrasing]: you don’t want a Union official telling us what to do and making it impossible to function and … every single abattoir closure was under that Union.

130 The comments made by Mr Ramsey to the meeting on 15 February were tape‑recorded and a transcript of Mr Ramsey’s statements is in evidence.

131 There can be no doubt that Mr Ramsey at this time harboured considerable hostility towards Mr Davis and the role Mr Davis and the Union had played in the industrial arrangements between the employer group of companies and the abattoir workforce. This hostility emerged expressly in the context of a discussion between Mr Ramsey and the workforce about the approach which should influence the upcoming arrangements in October. In part, this hostility was expressed to be a legacy of the earlier experience of the employer companies in facing Union opposition to the approval of the AWAs and the costs burden of that opposition. Nevertheless, there can be no doubt that Mr Ramsey at this time was hostile to the engagement by the Union in the industrial relations between the employer entities and the employees.

132 On 3 October 2001, Mr Delaforce (among other employees) was handed a proposed Certified Agreement by the employer companies. It was headed ‘Notice to Employees of Ramsey Group of Companies – 2^nd October 2001’. It proposed a vote on the agreement on 18 October 2001. The methodology was to take the prevailing AWAs and adopt certain variations to those instruments as the terms and conditions of the agreement.

133 Shortly after 3 October, a meeting of abattoir workers occurred chaired by Mr Paul McKenzie. There were 22 to 24 boners, 20 slicers, 18 slaughter persons and follow-on labourers and other employees, present.

134 At this meeting, a decision was taken to establish a consultative committee to negotiate aspects of the proposal with Mr Ramsey. Mr McKenzie suggested the Union delegates, Mr Delaforce and Mr Moss, be members of the committee. The members of the committee were Mr Moss, Mr Paul McKenzie, Mr Mackay and Mr Delaforce (as boners’ representatives), Mr Morrow (as a labourer’s representative), Mr Whetton (Offal Room representative), Mr Weier, Mr Colling and Mr Tim Blackadder (brother of Stephen Blackadder) as Slaughter Room representatives and Mr Weate.

135 As Union delegate, Mr Delaforce was the main spokesperson in talking to workers at general meetings concerning deliberations of the committee. Mr Paul McKenzie and Mr Moss also addressed general workers’ meetings on the issues. Mr Davis was not a member of the committee although at meetings with members of the committee off the abattoir site Mr Davis provided commentary, advice and analysis of Mr Ramsey’s proposals on such conditions as rostered days off, waiting time, double time for overs and increases in pay. AMIEU circulars prepared by Mr Davis were given to Mr Delaforce and Mr Moss and on some occasions to Mr Paul McKenzie for distribution to workers in the canteen during breaks.

136 Mr Delaforce was dissatisfied with working conditions for a number of reasons. He says this. His level of wages had not increased since the commencement of the AWA in 1998. The wage rate was fixed. Secondly, the number of tally units for the purposes of the incentive scheme under the AWA were not as favourable as the award. Thirdly, manning levels in the boning room were entirely within the discretion of Mr Ramsey. Mr Delaforce says there were 14 boners at the start of the AWAs and eventually 18 boners in the big boning room and 6 in the small boning room. The level of wages was affected by the composition of the boning rooms because the availability of overs depended upon the total amount produced per boner averaged over the number of boners. If the number of boners increased, the average output per boner would be lower and the incentive or tally component of the employees remuneration would be lower.

137 Mr Delaforce was dissatisfied with the first proposal because the incentive scheme would continue as formulated under the AWA, that is, under conditions less favourable than under the award notwithstanding that the base wage rate component would be increased. The proposal was more attractive to labourers not participating in any tally‑based incentive scheme.

138 The AMIEU urged the incentive scheme based on the State Award which provided a higher payment for boners and slaughter workers than would be available under the agreement proposed by Mr Ramsey. Mr Davis on behalf of the AMIEU prepared a comparative table of the operation of the tally system under the proposed certified agreement and the State Award. The comparison suggested a more favourable outcome under the award. For example, based upon data contained in the tables in [108], [109] and [110], the AMIEU comparison of daily remuneration for a slaughter person and a boner under the award and the proposed certified agreement showed the following result:

Comparison

Slaughter person’s remuneration		Boners’ Remuneration
*State Award*	*Certified Agreement*	*State Award*	*Certified Agreement*
Daily wage - $95.52	Daily wage - $95.52	Daily wage - $91.20	Daily wage - $91.20
Tally component - $111.39	Tally component - $52.62	Tally component - $174.10	Tally component - $54.69
Total - $206.91	Total - $148.14	Total - $265.30	Total - $145.89

139 This comparison assumed a daily base wage component under the Certified Agreement consistent with the State Award.

140 The analysis was shown to Mr Paul McKenzie and explained to employees in general meeting.

141 Further, according to Mr Delaforce, Mr Ramsey’s proposal would restrict other entitlements relating to rostered days off and would involve the abolition of ‘waiting time’, that is, payments for down time or interruptions. Employees paid on a tally system such as boners and slaughter persons might therefore be prejudiced by the abolition of waiting time as their total remuneration was based on actual production. Further, Mr Ramsey’s proposal involved the abolition of double overs. This proposal affected slaughter persons but not boners. Lastly, the proposal did not contain a grievance procedure.

142 These matters and particularly the complaint of no ‘wage’ increase since 1998 were discussed at the consultative committee meetings. There were eight such meetings. Mr Moss and Mr McKenzie and Mr Mackay primarily spoke at committee meetings to the above concerns which were identified generally in accordance with advices from Mr Davis on behalf of the AMIEU.

143 The management representatives on the first committee were Mr Ramsey, Mr Paul Marshall (Accounts Clerk), Ms Renee Mortimer, Mr Paul Allen and Mr Steve Beeston (for a part of the time), Slaughter Floor Supervisor.

144 At these meetings, the various issues of concern previously mentioned were raised including banking of rostered days off, proposed reductions in sick leave entitlements and the number of boners making up boning teams.

145 On 5 October 2001, Mr Davis wrote to Mr Ramsey giving notice that he intended to exercise powers under the Workplace Relations Act 1996 to meet with the workers on site on Tuesday, 9 October 2001. Mr Ramsey replied on 5 October nominating 12 noon as the time for the meeting and requesting the Union not to enter the site prior to 11.45am.

146 On 9 October 2001, Mr Davis conducted a meeting at the abattoir to discuss the proposed Certified Agreement with those workers who had elected to attend the meeting. At that meeting, Mr Davis supplied a form for employees to sign calling upon the Ramsey Group of Companies on behalf of the signatories to explain the proposal prior to a vote being taken and to meet with officials of the AMIEU and elected representatives of the employee group to discuss the agreement. 78 employees signed the form including Forrest, S J Young, J K Young, Delaforce, P McKenzie, Campbell, Moss, Brooks and Hambly. A copy of the form as signed was given to Ms Renee Mortimer and Mr Beetson.

147 On 9 October 2001, Mr Davis again wrote to Mr Ramsey advising of his intention to meet with workers during meal breaks and other breaks at the abattoir on 15, 16, 17, 18 and 19 October 2001. Mr Davis referred to earlier discussions with Ms Mortimer, confirmed the request of a significant number of employees that the company meet and confer with the AMIEU concerning the proposed Certified Agreement, confirmed the provision of a copy of the signed request to Ms Mortimer and purported to rely upon provisions of the Act compelling the employer entities to explain the content of the proposal (s 170LK(7) and s 170LT(7)).

148 On 11 October 2001, the solicitor for the Ramsey Group of Companies, Mr Hannigan responded advising that the employer entities intended to vary the terms of the proposed Certified Agreement and the ballot nominated for 18 and 19 October 2001 would be cancelled. Mr Hannigan noted that attendance by the AMIEU at the abattoir throughout the week commencing 15 October 2001 would not be necessary.

149 Apart from Mr Hannigan’s letter, Mr Ramsey advised the first consultative committee that the employer companies would not proceed with the first proposal and would consider a new proposal based on the State Award. Again, there was discussion about the content of what might be in the new proposal including adjustments to wages, rostered days off, sick leave entitlements, waiting time, manning levels and other matters.

150 On 16 or 17 October 2001, the employer companies distributed a second proposal for an enterprise agreement. The proposal was distributed with payslips to employees. Mr Delaforce says he was dissatisfied with the second proposal. He understood the only change from the first proposal was that the new document provided for a base wage rate consistent with the State Award plus a loading of $25 per week. Mr Delaforce understood the second proposal to adopt the same incentive scheme as the AWA. Other features remained the same as the first proposal, as he understood it.

151 An AMIEU document prepared by Mr Davis entitled ‘AMIEU Summary of Ramsey’s Second Proposal for an Enterprise Agreement’ criticised the changes to rostered days off, removal of waiting time, removal of double ‘overs’ payments, the adoption of base weekly wage rates by reference to the State Aware rather than the Federal Award, freezing of allowances, cuts to sick leave, changes to the grievance procedure, no right to family leave to care for relatives and the introduction of an attendance amount. In addition, the AMIEU was critical of the shortage of stock stand-down proposal. Under the Ramsey proposal according to the AMIEU, a shortage of stock could be declared at any time which would give the employer the right to stand all workers down without payment whereas the State Award required continuing payment as casuals in the days worked by employees in a short week.

152 Mr Davis prepared a comparative table headed ‘Comparison of Key Wages Rates’ which compared the wage rates of slaughter persons, boners, slicers and slaughterhouse labourers under the Federal Meat Industry (Processing) Award 2000, the State Award and the AWAs. A copy of the comparative table was given to members of the first consultative committee, Delaforce, Moss, Paul McKenzie, Forrest, Colling and Mackay at a meeting on 24 October 2001. The comparison suggested remuneration rates payable under the Federal Award were the most favourable followed by the State Award with the AWA remuneration the least favourable, in the view of the AMIEU.

153 The second proposal was to be voted upon by employees on 5 November 2001. As to the AMIEU summary of the first proposal, the AMIEU encouraged further discussion of the proposal and encouraged employees to seek an explanation of the proposal from the employer companies. As to the second, the AMIEU encouraged further discussion but also urged a ‘no’ vote concerning the second proposal.

154 A third proposal then emerged dated 8 November 2001 on behalf of the employer entities which reflected a further change. Consistent with the earlier approach, the methodology was to adopt the content of the previous AWAs subject to nominated proposed changes, put the proposal to a vote (this time on 26 November 2001), secure a collective enterprise agreement by majority ballot and submit the agreement to the AIRC for certification. The explanatory memorandum distributed by the employer entities identified 12 amendments to the previous AWA.

155 As to the remuneration proposal, the amendments proposed a minimum rate of pay in accordance with the weekly wage rate reflected in the State Award with increases in the State Award to be passed on. All calculations of allowances and tally would be adjusted using the State Award.

156 The vote took place on 26 November 2001. The agreement was accepted by a majority of 99 to 59.

157 On 18 January 2002, the AIRC conducted a hearing of an application by Ramsey Packaging, Ramsey Food Packaging No. 2 Pty Ltd, Ramsey Services and Paul Allen Contracting Services Pty Ltd for certification of the enterprise agreement. The applicant entities were represented by Mr Hannigan instructing Mr Hatcher. Mr Davis sought leave to appear on behalf of the AMIEU on the hearing so as to represent employee members of the Union and tendered the documents signed by employees arising out of the meeting on 9 October and the correspondence between the Union, the Ramsey Group of Companies and Mr Hannigan. The applicants resisted the Union’s application for leave in part on the ground that withdrawal of the earlier proposed enterprise agreements and substitution with the third proposal brought any appointment of the AMIEU by relevant employees to an end and, in part, on the ground the AMIEU had ‘no standing’ to apply. Commissioner Bacon concluded that the AMIEU had been properly requested to represent members of the Union extending to the third agreement consistent with the provisions of the Act and granted leave to the AMIEU and Mr Davis to intervene in the application.

158 Having obtained leave, the AMIEU opposed the hearing of the application and adopted the following position before Commissioner Bacon:

(a) the application by the Ramsey Companies did not comply with the Act;

(b) the agreement for certification did not identify the employer entities that would be bound by the agreement, the schedules for that purpose all being blank;

(c) the statutory declaration in support of the application signed by Mr Ramsey on behalf of all employer applicants incorrectly stated two matters, namely, that the employer was unaware of any request made of the AMIEU to represent any employees and, secondly, the employer did not receive any request from the AMIEU for that purpose, notwithstanding the material described at [146], [147] and [148] and the production of a list of names to Ms Mortimer;

(d) the employer entities had not taken steps to explain the agreement to employees as required by s 170VK of the Act;

(e) no submissions should be entertained by Commissioner Bacon on the question of the no-disadvantage test;

(f) the Commissioner ought not to proceed with the application; and

(g) the agreement should be re-submitted to employees for explanation.

159 Additionally, the AMIEU raised a preliminary issue concerning the determination of the relevant award, Federal or State, for the assessment of the no-disadvantage test, submitted that the certification application could only be determined by a Full Bench of the AIRC since the employer entities ought not to be taken as a ‘single employer’ for the purposes of Pt VIB of the Act and contended Commissioner Bacon ought not embark upon hearing the application.

160 The Ramsey Companies sought to determine clearly whether the AMIEU supported or opposed certification of the agreement. The AMIEU pressed the difficulties identified at [158] and [159].

161 On 21 January 2002, the AMIEU circulated through Mr Delaforce, Mr Moss and Mr Paul McKenzie, a report of the proceedings before Commissioner Bacon highly critical of the conduct of those proceedings by the employer entities.

162 On 8 February 2002, Commissioner Bacon published his decision on the certification application concluding that the four employer entities did not constitute a common enterprise for the purposes of s 170LB(2) of the Act and referred the application to the Full Bench. Commissioner Bacon also gave reasons for the intervention ruling in favour of the AMIEU confirming the continuing standing of the AMIEU to represent employee members of the Union in connection with the third proposed enterprise agreement.

163 On 19 February 2002, the Union pressed its position with Mr Ramsey by writing to him drawing his attention to Commissioner Bacon’s decision, enclosing exhibits tendered by the AMIEU including the list signed by 78 individuals appointing the Union on their behalf and agitating for an opportunity to meet and confer with employer representatives in relation to the matter. The Union put Mr Ramsey on notice that it would require his attendance at the hearing before the Full Bench on 3 April and to that end the Union would issue a summons to secure Mr Ramsey’s attendance. The Union also drew attention to a company search of one of the applicant companies, Ramsey Food Packaging No. 2 Pty Ltd, and noted its date of registration as 4 December 2001. The Union sought clarification of how that entity had a cohort of employees employed at the date of the vote on the agreement, namely, 26 November 2001, having regard to the registration date of the company. Ms Mortimer on 5 March nominated a meeting date of Friday, 22 March at the plant. The Union responded advising that Mr Davis would be available and in attendance with him would be Union delegates, Mr Delaforce and Mr Moss.

164 On 15 February 2002, a meeting took place at the abattoir between Renee Mortimer, Stuart Ramsey and Warren Morrow, Delaforce, Moss, Weier, Colling, Beetson, Broadrick and Paul Marshall. The meeting was convened by Mr Ramsey, as he explained, because the AIRC had referred the certification application to a Full Bench due to the participation of multiple employers. Mr Ramsey emphasised a need to secure the structural changes sought by the agreement and said that intervention and opposition by Mr Davis had delayed the matter. Mr Ramsey was upset by that opposition. Committee members on behalf of the employees said they considered they should go back to the award. Mr Ramsey said the employees could have their notice now if they elected to go back to the award because ‘the company could not continue’. Some heated exchanges occurred between Mr Moss and Mr Ramsey about these matters. Mr Ramsey said the actions by Mr Davis on behalf of the AMIEU were a ‘vendetta against him personally’ and the Ramsey companies ‘would not deal with Mr Davis’.

165 Mr Ramsey said he would deal with the AMIEU as long as it was not Mr Davis who represented the Union. Mr Ramsey was emphatic in his position that if the award governed the conditions, the abattoir ‘would not be viable’. Mr Delaforce expressed concern about the operation of the tally system and the number of boners included in the calculation. Mr Morrow questioned whether ‘attendance payments’ might be made and whether wages could be increased since the AWA did not provide for any increases. Discussion occurred concerning the new ‘No. 2’ entity. The detailed notes of Mr Paul McKenzie and Ms Renee Mortimer concerning the meeting are in evidence. The meeting was heated and apparently difficult. Plainly enough, it raised a number of issues of significant interest to the employee representatives of the consultative committee, going to working conditions.

166 Shortly following the meeting on 15 February 2002, the boning room employees met and resolved to dissolve the consultative committee. A notice was distributed to employees of that decision which recited conduct on the part of management. Mr Ramsey encouraged continuing engagement by the consultative committee. Mr Delaforce responded advising that the decision of both boning rooms was unanimous, the attack upon Mr Moss was perceived by the meeting to be ‘disgraceful verbal abuse’ by Mr Ramsey, continuing communication was nevertheless desirable and that Union representation in the process might ‘help maintain lines of communication’.

167 On 22 March 2002, Mr Davis attended a meeting in the meal room of the abattoir with representatives of management, Mr Beeston (slaughter floor supervisor) and Ms Renee Mortimer. Mr Delaforce, Mr Moss and Mr Forrest were present. Mr Davis suggested that the AMIEU would support the proposed certified agreement at the hearing before the AIRC on 3 April 2002 provided the employer entities accepted a proposed Memorandum of Understanding (‘MoU’) with the AMIEU on behalf of member employees.

168 The elements of MoU included terms that the AMIEU would work through employee Union delegates to resolve grievances, the employers would deal with elected Union delegates in relation to grievances, the AMIEU would raise any issue, dispute or grievance with the employer entities prior to any visit to the abattoir premises, the companies would deal with grievances in a timely way and provide proper notice to the AMIEU (3 days) and the employers would facilitate meal breaks for all operational units of the abattoir at a common time so that employees could all meet to discuss relevant issues with the Union.

169 In April 2002, Mr Delaforce attended a meeting of workers at the abattoir. At that meeting it was resolved to establish a second consultative committee. The members elected were Mr Michael McKenzie, Mr Terry Brooks, Mr Rodger Campbell, Ms Shannon Tough, Mr Robert Colling, Mr Brian Weier and Mr John Young. This consultative committee lasted for approximately two weeks. Neither Mr Davis nor any other full time officer of the AMIEU was a member of the second consultative committee. Nevertheless, the AMIEU met off-site with Union members of the abattoir and prepared material comparing the proposed enterprise agreement with the terms and conditions reflected in the award. In particular, Mr Davis prepared a comparative table demonstrating his assessment of the operation of the tally system under the award and under the proposed certified agreement. Waiting time remained a contentious issue.

170 On 3 April 2002, the Full Bench of the AIRC heard the application by the Ramsey companies and Paul Allen Contracting Services Pty Ltd for certification of the agreement. The application was withdrawn.

171 On 11 April 2002, Mr Delaforce received a notice sent to all salaried staff from Mr Ramsey concerning the introduction of a ‘bonus system’. In addition to the rates of pay provided for by the AWAs, the employer entities proposed additional wages by way of a bonus system of $95 per five day week for slaughtermen and boners, $90 for slaughter floor tally labourers and slicers, $80 for production labourers and various rates for juniors. The payment of these bonus wages was predicated upon nine conditions, namely:

(a) minimum 3,500 head of cattle to be killed in any one week;

(b) the percentage yield from the average of both boning rooms must be greater than 67%;

(c) to qualify, the employee must work on a full time basis on each and every day of the week the abattoir operates. No bonuses would be paid if the employee was on holidays, sick days etc;

(d) no bonus would be paid if ‘there is any Union interference during the week; or there is any disputes by employees as a group with management; or if an individual employee has a dispute with management that employee will not receive any bonus’;

(e) if individual employees do not work to the standard required by management or if their personal health or lockers are not maintained to the standard required by management, no bonus shall be paid;

(f) if any product is rejected for reasons of contamination which has been sent for export, no bonus shall be paid;

(g) if any corrective action report is received from AQIS, no bonus shall be received;

(h) in the event of a new agreement coming into operation, no bonus shall be paid; and

(i) ‘the payment of the bonus and the continued implementation of bonuses shall be at the sole discretion of management’.

172 Mr Delaforce was dissatisfied with the proposed bonus system because it failed to translate into effective wage increases. After the first few weeks of operation of the system, Mr Delaforce says he was rarely paid the bonus. Apart from the first two weeks, notices were placed on the abattoir noticeboard stating that the yield had not been achieved for the week. Mr Michael McKenzie and Mr Campbell were also critical of the proposed bonus system. The notice introducing the bonus system explained the context, ‘As you may be aware, the Application to have a Certified Agreement has been withdrawn. Upon learning the AMIEU opposed the wage rises contained in the Certified Agreement and the Certified Agreement itself, we withdrew the Application to enable you to receive some benefits sooner rather than waiting for further hearing days of the Commission.’

173 On 29 April 2002, a meeting of the second consultative committee took place with Mr Ramsey in the canteen of the abattoir. Those present included Mr Ramsey, Mr John Broadrick, the Boning Room Foreman, Mr Paul Marshall, the Management Accounts Clerk, Ms Renee Mortimer, Mr Campbell, Mr Brooks and others. Complaint was made about the bonus system and the failure to guarantee CPI wage increases. Mr Ramsey maintained that the bonus system gave increases. Employee representatives objected to the conditional and qualified operation of the bonus system. Mr Ramsey was given a proposal by the committee and requested to consider it. The proposal had four elements, namely, current AWA conditions to be confirmed, wage rates to be increased to the equivalent of the State Award rate and all CPI increases to be passed on as they are approved by the Commission, manning levels to be maintained at 17 slaughtermen and 22 boners for the respective functional areas and finally, a request that management consider paying an attendance bonus. After the meeting with Mr Ramsey, the second consultative committee members met with all workers at the abattoir and gave the employees a report of the meeting.

174 On 7 May 2002, Mr Ramsey responded by placing a letter on the abattoir noticeboard addressed to the consultative committee members. Mr Ramsey’s response emphasised the need to operate the abattoir efficiently and profitably and said, ‘Rostered days off and sick leave are a problem in running the workplace on a day to day basis. Whilst management have aims with manning levels in the slaughter floor and boning rooms, this is purely a management matter. Please detail any further proposals you have, including the abolition of rostered days off and the lessening of sick leave’. Mr Ramsey also asked for precise details of the membership of the second consultative committee, the basis of election, status of Union members and the voting results on resolutions.

175 During May, June and July 2002 meetings took place between Mr Davis and Union members employed at the abattoir. Copies of a form providing employees with an opportunity to appoint the AMIEU on behalf of workers to apply for termination of the AWAs were distributed to abattoir employees by Mr Delaforce and Mr Moss.

176 On 14 May 2002, Mr Delaforce and Mr Paul McKenzie collected complaint forms from all production employees and lodged them with the office of the Employment Advocate. Mr Delaforce then requested the assistance of the AMIEU in making an application to the AIRC for termination of the AWAs.

177 On 30 July 2002, Mr Davis lodged an application with the AIRC on behalf of 127 employees seeking termination of their AWAs. The grounds included that, the AWAs continued to fail a no disadvantage test, employees had not received an increase in the base rate of pay for four years and three months, the certification application in respect of the enterprise agreement had been withdrawn from the Full Bench before a determination could be made by the Commission (in circumstances where the employees had appointed the AMIEU to act as a bargaining agent for a certified agreement) and in the absence of the AWAs, wages payable to employees under either the State or Federal Award would be higher than the agreement. Additionally, employees would have the benefit of a binding arbitration mechanism concerning disputes and grievances should the AWAs be terminated.

178 On 8 August 2002, Mr Davis wrote to Mr Ramsey seeking an urgent time to meet and discuss conditions. Mr Hannigan responded seeking an adjournment of the termination application. The AMIEU refused to adjourn that matter and sought a meeting by letter dated 26 August 2002. Mr Hannigan on 26 August advised that Mr Ramsey was seeking instructions concerning any enterprise agreement.

179 On Monday, 19 August 2002, the AIRC made an order which had the effect of terminating 121 AWAs with effect from 23 September 2002 including AWAs signed by Mr Stephen Blackadder, Brooks, Campbell, Delaforce, Forrest, Hambly, Michael McKenzie, Paul McKenzie, Moss, John Young and Susan Young.

180 On 19 August 2002, Mr Delaforce participated in a meeting of employees to discuss conditions and establish a third consultative committee. On 22 August 2002, a resolution was passed electing a third consultative committee and on 23 August 2002, notice was given to management by letter. The members of the third consultative committee were John Young, Moss, Paul McKenzie, Forrest, Weier, Peter Laverty, Brooks, Wayne Dicks, Delaforce, David Goodrick, Robert Carrigan and Sue Young.

The Notification of a Stock Shortage and Termination Notices

181 On Wednesday, 21 August 2002, a notice to all employees was placed by management on the abattoir noticeboard advising that, “This plant continues to operate under stock shortage (as per clause 17 of the Australian Workplace Agreement) until advised otherwise”.

182 On 29 August 2002, Mr Davis attended a meeting at the abattoir in the canteen with all Union employee members. Ms Mortimer entered the canteen and placed a notice on the noticeboard in these terms:

“In accordance with our notice given on 21 August 2002, we now advise that there shall not be sufficient stock to kill on Monday 2^nd September 2002. Accordingly, no slaughterman and no follow-on labourers or slaughterman shall be required. Boners and their follow-on labours shall be required on Monday 2^nd September 2002 but not Tuesday 3^rd September 2002. All employees please check with your foreman to establish whether you are required. The lack of cattle suitable for our customers, caused by seasonal factors including the current drought and subsequent drop in sale cattle numbers, has caused this closure. The AMIEU has been appropriately advised. You individually shall be advised when you shall be offered further employment.”

183 Also on 29 August 2002, employees were handed a notice of stock shortage in terms of the notice at [182] but with the additional endorsement: “In accordance with your AWA, you are entitled to request payment of all your entitlements, if you do make that request all of your entitlements will be paid”.

184 On 30 August 2002, Mr Davis and Mr Delaforce discussed the approach to accessing entitlements with Ms Mortimer and some controversy about that issue occurred. A disputes committee was convened on 30 August 2002 with management including Mr Delaforce, Mr Moss, Ms Mortimer and Mr Allen. On the question of when work might resume, Ms Mortimer said that, “If and when there is available work, people will be contacted individually”.

185 On 10 September 2002, Mr Delaforce received a letter from South Grafton Abattoir in these terms:

“We refer to our previous notice that a shortage of livestock has caused the closure of the South Grafton Abattoir. There appears to be some confusion among the employers as to the effect of this under the relevant industrial instruments.

The industrial instruments provide that there is no opportunity to stand down employees where there is a shortage of stock. Accordingly, we have had to officially terminate your services with one week’s notice. There are, however, provisions that enable employees to take the opportunity of casual work as work becomes available and to retain full continuity of employment in the event that the shortage of livestock is overcome and work resumes.

For this reason we told you that we could either pay out all your entitlements at termination or, if you wished to keep open the option of re-employment with continuity, without having to pay entitlements, we are content to hold your entitlements on your behalf pending re-employment.

We trust this clarifies the matter. Could you please let us know at your earliest convenience whether you wish us to hold your entitlements pending possible re-employment or whether you would like your entitlements forwarded to you.

S B Ramsey” [emphasis added]

186 On 13 September 2002, Mr Delaforce received a letter from South Grafton Abattoir in these terms:

“We recently wrote to you confirming that your employment had been terminated as a result of a shortage of stock and the consequent closure of the South Grafton Abattoir.

We told you that we could either pay out all your entitlements at termination or, if you wish to keep open the option of re-employment with continuity, without having to repay entitlements, we were content to hold your entitlements on your behalf pending re-employment.

Regrettably, this appears to have led to further confusion. The union is apparently concerned that employees might think in taking their entitlements they would be resigning from employment.

This is clearly not the case: Employment has already been terminated.

If you choose to have your entitlements paid out, the only difficulty which arises should re-employment become available is the possibility that you may have to repay those entitlements in order to obtain full continuity of employment.

S B Ramsey” [emphasis added]

187 On 4 September 2002, the AMIEU filed a notice of dispute with the AIRC concerning issues going to the payment of entitlements during the closure of the abattoir and sought an injunction to restrain the relevant employer paying out employee entitlements, invoked conciliation processes and an arbitration process on 19 September 2002.

188 On 16 September 2002, Mr Delaforce, Mr Moss and Mr Davis sought a meeting with Mr Ramsey to discuss re-engagement of Union members of the workforce. Ms Mortimer said Mr Ramsey would not see the delegation and any requests must be put in writing. Mr Davis attended a meeting of workers and then returned to the office and had a conversation with Ms Mortimer. Mr Davis said all employees are prepared to work and will work if given work. Ms Mortimer said the abattoir was offering work that day to only those individuals contacted by the abattoir. Mr Davis said those individuals would only work if all former employees were offered employment. Ms Mortimer confirmed that employment was restricted due to a stock shortage and when work became available individuals would be contacted. Mr Davis asserted that no one would be working in those circumstances. Approximately five or 10 individuals went back to work that day.

189 On 17 September 2002, Mr Davis and Mr Brown conducted a meeting of workers outside the abattoir premises. As employees approached the security guards, the names of particular employees seemed to be checked off against a list. Some employees were able to enter, others not. Mr Delaforce approached the gate and asked whether he was on a list of workers allowed to work that day, 17 September 2002, and he was told he was not on the list. Later that day, Mr Delaforce received a telephone call from Ms Mortimer advising him that there was work for him at the abattoir on 18 September 2002. On 17 September 2002, Mr Davis wrote to Mr Ramsey on behalf of the employees who had signed AWAs. Mr Davis drew attention to those provisions of the agreement dealing with termination arising out of seasonal factors or shortages of livestock and noted clause 46.4 of the agreement to the effect that if the Union could not be satisfied that the terminations arose out of genuine seasonal factors or shortages of livestock and no agreement could be reached with the employer about those matters, that matter would be referred to the AIRC for determination.

190 On the evening of Tuesday, 17 September 2002, Mr Delaforce and Mr Moss conceived a compromise proposal to resolve the re-employment of all employees. A written proposal was given to Mr Broadrick or Ms Mortimer which involved the introduction of an absenteeism policy, new disciplinary procedures and other entitlements, a round-robin for workers during the shortage of stock, workers with injuries to be handled according to workers’ compensation laws and all workers to start back on the following Monday with certain entitlements. Mr Ramsey refused to consider the compromise proposal until all workers rostered for that day, 17 September, returned to work.

191 On 19 September 2002, the question of the dispute concerning the terminations was referred to the AIRC and heard by Commissioner Simmonds. The AIRC refused to make the orders sought by the AMIEU.

192 A number of conclusions emerge from this chronology of events both in relation to the role of the AMIEU in the industrial relationship between the abattoir employers and their employees and the extent to which particular employees either on their own behalf or as consultative representatives of employees more broadly, were expressing dissatisfaction with aspects of the employment conditions.

193 The content of the engagement by the AMIEU is discussed at [102] - [105], [113], [116], [117], [121], [122], [134], [135], [138], [145], [146] - [148], [151] – [153], [158] – [168], [171], [172], [175] – [179], [182], [184], [187] – [189].

194 It is clear the AMIEU assumed a significant role in what was perceived by Mr Ramsey to be a matter central to the functioning of the abattoir, namely the terms and conditions of engagement of abattoir employees and the extent to which the employer entities might secure enduring approval or certification for particular arrangements and conditions.

195 Two aspects of this engagement are important.

196 The first aspect goes to the question of whether the extent and content of the engagement by the AMIEU in the process of representing members in connection with either a sustained critique of Mr Ramsey’s proposals or formal steps to oppose certification or approval of preferred arrangements (and ultimately an application on behalf of members to the AIRC to bring the AWAs to an end) provides a basis for drawing an inference that has two components. The first component is that Mr Ramsey was hostile to the role of the AMIEU on such an important matter and secondly that membership of the AMIEU by P F McKenzie, Brooks, Campbell, Forrest, M R McKenzie, J K Young and S J Young and membership and discharge of the role as delegate of the AMIEU in the workplace on the part of Delaforce and Moss formed a part of that hostility.

197 The second aspect of the engagement by the AMIEU in these issues is whether the sequence of steps taken by the AMIEU in all the circumstances, satisfies the statutory description of “an industrial association that is seeking better industrial conditions” for the purposes of s 298L(l).

198 As to the second aspect, it seems to me the evidence establishes that the AMIEU was seeking what it perceived to be better industrial conditions for its members at the South Grafton Abattoir. It opposed, with leave, the certification application of the Enterprise Agreement on 18 January 2002. It pressed an opportunity to meet with Mr Ramsey on 19 February 2002 to discuss that matter further and the role of Ramsey Food Packaging No. 2 Pty Ltd. Mr Ramsey knew the AMIEU was addressing meetings of the employees and had previously proposed to conduct meetings on 5 consecutive days in October 2001 concerning the proposed Certified Agreement. The AMIEU, on behalf of many employee members, made an application on 30 July 2002 for the termination of the AWAs ultimately securing the termination of 127 Agreements. The grounds of criticism of the AWAs made by the AMIEU in its application to the AIRC to bring the AWAs to an end are a reflection of perceived “adverse conditions” that would be made “better” by ending the AWAs in favour of the prevailing Award (see [193] and [202] herein).

199 In addition, Mr Delaforce both on his own behalf and in his capacity as a Union delegate was expressing serious and continuing reservations about his conditions of employment. In particular, he was dissatisfied with the provisions of the AWA which brought about the result that wages had not increased since the commencement of the AWAs in 1998. He was dissatisfied with the operation of the tally scheme under the AWAs, manning levels generally (particularly in the boning rooms), issues in relation to rostered days off, waiting time, the bonus scheme, the operation and implementation of the bonus scheme, wage levels generally and the mechanism for addressing grievances.

200 Apart from the concerns expressed by Mr Delaforce, concerns in relation to, in particular, wage levels, and other aspects of employment conditions were concerns reflecting dissatisfaction with conditions of employment by Brooks, Campbell, Forrest, Michael McKenzie, Paul McKenzie, Moss, John Young and Susan Young.

201 In relation to the first aspect, the evidence demonstrates that the role of the AMIEU was significant. Further, Mr Ramsey was in no doubt of the role played by the AMIEU in bringing about and acting as an advocate for a position inconsistent with the conditions Mr Ramsey perceived to be central to the effective and economically efficient operation of the abattoir. The evidence shows that Mr Ramsey was hostile to the AMIEU as an interventionist in the relations between the employer entity and its employees. The expression of that hostility is reflected in those matters described at [123] to [129], [164], [165] and [172].

202 Aspects of that engagement included:

(a) attempts by Ms Evans to establish in March 1998 an enterprise agreement with Mr Ramsey;

(b) appointment as bargaining agents on behalf of Union members employed at the abattoir to oppose the AWAs before the Employment Advocate and subsequently in September 1998 before the AIRC;

(c) agitation on the formulation of the tally system reflected in the AWAs which was central to the daily supplemental incentive payments made to slaughter persons and boners;

(d) attempts to secure the appointment of Mr Davis as bargaining agent to negotiate conditions of employment with Mr Ramsey upon the expiration of the AWAs;

(e) visiting the enterprise to meet workers and consult with Union delegates Delaforce and Moss in late 2000 and with employees anticipating a new agreement by April 2001;

(f) advising Union delegate members and other delegate members of the first consultative committee of analytical and other comparative assessments of Mr Ramsey’s first proposal for a certified agreement having regard to Award conditions both State and Federal and conditions under the AWAs;

(g) comparing particularly the tally incentive scheme based on the State Award and the AWAs for slaughter persons and boners;

(h) corresponding with Mr Ramsey to make arrangements to address meetings of workers on site and advising members of the consultative committee particularly Union delegates and some other members on aspects of the first, second and third proposed certified agreements;

(i) opposing approval before the AIRC of the enterprise agreement and attacking and ridiculing through circulars the conduct by the employer entities of the certification process before the AIRC;

(j) pressing Mr Ramsey to adopt the MoU as an element of securing support for the certification of the agreement;

(k) advising Union delegates and distributing material to secure appointment of the AMIEU for the purpose of making applications to the AIRC to terminate the AWAs;

(l) agitating to bring the AWAs to an end to establish conditions of employment consistent with the Award;

(m) participating in meetings throughout May, June and July 2002 with Union members employed at the abattoir in relation to the conditions of employment leading up to the applications to terminate the AWAs.

203 The evidence establishes that Mr Ramsey knew of the role played by Delaforce and Moss as delegates of the Union. By reason of the provision of documents to management by the Union concerning representation of Union members at particular proceedings, Mr Ramsey knew or must be taken to have known that P F McKenzie, Brooks, Campbell, Forrest, M R McKenzie, J K Young and S J Young were members of the Union. Mr Ramsey also knew of the articulated dissatisfaction with conditions identified by Delaforce and Moss and the critique of conditions of employment prepared by the Union and the dissatisfaction expressed with conditions by members of the consultative committees. The first committee included Union members P F McKenzie, Moss and Delaforce; the second, M R McKenzie, Brooks, Campbell and J K Young; and the third, J K Young, S J Young, Moss, Forrest, Brooks, Delaforce and P F McKenzie. Having regard to the chronology of these events and the proximity of the timing between the successful applications for termination of the AWAs and the subsequent publication of the dismissal notices, an inference is open that dissatisfaction with working conditions in the context of the agitation by the AMIEU for better industrial conditions of employment was a reason for the dismissal of Delaforce, P F McKenzie, Moss, Brooks, Campbell, Forrest, M R McKenzie, J K Young and S J Young. The evidence of Mr Forrest at [306] shows that after the dismissals and upon re‑engagement of employees (approximately 80 to 90 employees), Mr Ramsey expressed his view of the new environment in this way: ‘This is how the place will be run now, no RDOs, one sick day and you will be gone, you will be paid the Federal award until such time as a new agreement is worked out. There will be no tally system and you will be paid in accordance with the weight per kilo of the box’. The issue of ‘tally’ calculations and its relationship with the weight of the beast was an issue for the employers from the outset of operations under Mr Ramsey. Further, having regard to the role of the AMIEU and the hostility on the part of Mr Ramsey towards the AMIEU, an inference is open that a workplace free of those Union members who had become closely associated with the Union position, acted as delegates, distributed material at the workplace and participated in consultative committees urging a different view of conditions of employment was a reason for dismissal of those individuals who were members of the Union. Mr Ramsey’s notion that the abattoir would have to close and ‘the company could not continue’ if the AWAs were brought to an end and the award prevailed [164] or that the abattoir ‘would not be viable’ under such conditions [165] seems not to be so because within days of the abattoir issuing the termination notices of 10 and 13 September 2002 closing the abattoir, the abattoir was operating again by at least 17 September 2002 and, by 20 September 2002, at least 80 to 90 employees were re‑engaged. An inference is open that closure of the abattoir was effected to displace the workforce, re‑hire and leave aside at least the current claimants on the ground that these individuals were expressing dissatisfaction with conditions of employment and did so as members of the Union in circumstances where the Union was seeking better industrial conditions. Those inferences arise subject to a consideration of whether the termination of the cohort of employees was due to a stock shortage and whether a dismissal of the entire workforce is a primary fact which prevents any such inference arising. Before dealing with that question, the circumstances concerning Blackadder, Hambly and Swain need to be identified.

The Industrial Arrangements concerning Blackadder, Hambly and Swain

204 The circumstances said to be the foundation of a prohibited reason for termination and a failure to re‑employ each of these three individuals, concerns conduct related to the individual taking proceedings for relief under the Act and obtaining the benefit of particular orders.

Mr Stephen Blackadder

205 Mr Blackadder commenced work at the abattoir in 1986 as a meat packer under the Gilberston administration, became a boner in the early 1990s and commenced work for Ramsey Butchering under an AWA on 29 April 1998 in the big boning room. Mr Blackadder says that the scope of boning work he undertook in all his period of employment at the abattoir did not involve a particular task described as “hot neck boning”.

206 Mr Blackadder was either an applicant for relief in proceedings pursuant to the Act or a witness in proceedings under the Act between September 1999 and the commencement of these proceedings.

207 In August 1999, Mr Blackadder was asked to meet with Mr Ramsey’s solicitor, Mr Hannigan and provide a statement concerning a workplace incident involving Mr Swain. Mr Blackadder did not want to give a statement which might have led to the dismissal of Mr Swain. He refused. He was summonsed to appear as a witness in AIRC proceedings between Ramsey Packaging and Mr Swain on 27 September 1999. He gave a one page statement (six sentences) concluding that he was not prepared to say whether Mr Swain was performing his duties properly in the boning room on the relevant day.

208 At work at 6.30am the following morning, 28 September 1999, Mr Blackadder was directed to go from the boning room to the slaughter floor and carry out hot neck boning. Hot neck boning involves freeing meat from the bones of a beast from the neck to the ribs. The task involves the use of greater rotational force applied to the wrist and elbow than ordinary boning. Tasks in the boning room are undertaken in conditions under 10 degrees Celsius whereas hot neck boning on the slaughter floor is undertaken in conditions of 20 to 30 degrees Celsius. The task involves processing approximately 70 beasts in an hour and the production line involves presenting the beasts to the boner at a 40 to 45 degree angle requiring the operator to rotate around the backbones of the beast and cut the neck bones out.

209 Mr Blackadder suffered from a pre‑existing injury to his right elbow that restricted movement in his arm. The injury was never a difficulty in performing ordinary boning because those tasks involved straight cutting and no rotation of the arm. Mr Blackadder had undertaken medical examinations to determine his fitness for ordinary boning tasks.

210 Mr Blackadder enquired of management as to the reason for the re‑allocation of tasks that morning and was told that Mr Roger Campbell needed to be replaced because he was going on holiday leave. Mr Blackadder thought that response odd as Mr Campbell was working with Mr Blackadder to learn the tasks of preparing “cube roles” and “rib fingers” and, in consequence, some other person must be undertaking hot neck boning tasks previously undertaken by Mr Campbell.

211 Mr Blackadder protested that he had no experience in undertaking hot neck boning and that he might well be a danger to other employees on the slaughter floor. He refused to undertake the task.

212 On 28 September 1999, Mr Blackadder wrote to Mr Ramsey saying:

“No reason was given for taking me off my regular job as a hind quarter boner in the large boning room and placing me on the slaughter floor. I left work over this blatant attack on me less than 24 hours after I gave evidence in the Australian Industrial Relations Commission. I want you to know that I am ready, willing and able to perform the duties I was hired for. I wish to start back at work immediately in that job and I ask you to allow me to do this.”

213 Mr Ramsey responded that day by saying:

“I agree that you were approached by our boning room foreman and asked to go neck boning today. You were employed as a boner and as you know we have previously moved workers to neck bone when we were short, as we were today with our regular neck boner on holidays, you were asked to do that task and refused. You were employed as a boner and the employer has the right to select where you will bone at any given time. You are requested to return to work as soon as possible and to do the tasks assigned to you for the day. In the event that you do not return by Tuesday, 5 October and commence boning where you are so directed, I shall have no alternative other than to dismiss you for your blatant refusal to follow my simple request.”

214 On 1 October 1999, Mr Blackadder met with Mr Ramsey. Mr Ramsey told him that if he wished to return to the abattoir, he would have to do the hot neck boning. Mr Blackadder said, “I can’t do the hot neck boning”. Mr Ramsey said, “I am not going to change my mind”. Mr Blackadder left the meeting and was subsequently provided with an employment separation certificate.

215 On 25 October 1999, Mr Blackadder, assisted by the AMIEU, made an application for orders against Ramsey Butchering in the AIRC arising out of what was said to be the unfair dismissal of Mr Blackadder. On 29 March 2000, Commissioner Redmond published his decision. Commissioner Redmond’s conclusions and findings arising out of the direction given to Mr Blackadder on 28 September 1999 were these:

“[50] The applicant, Mr Blackadder, gave evidence as to what occurred on the morning he left the respondent’s premises.

…

[52] Mr Robert James Walters, a witness for the company, was the foreman in the boning room. Mr Walters gave evidence as to the events that occurred on 28 September 1999 when the applicant was directed to go and preform hot neck boning.

[53] The evidence of Mr Paul David Marshall, the company’s personnel officer and payroll manager, concerned the circumstances which arose after Mr Blackadder had left the workplace and the functions that he assumed employees should carry out according to their classifications. In his sworn statement Mr Marshall referred to other matters he thought relevant to the case. During cross-examination by Mr Davis (at pg. 90 line 10 of transcript through to pg. 93 line 35) it became clear that the applicant had been employed by the respondent with a pre‑existing elbow injury which was noted in the Doctor’s Certificate [Exhibit D2], and which would have caused some restriction when performing hot neck boning. Furthermore the witness expressed his concern regarding training and whether people were being fully trained.

[54] Mr John Lawrence Broadrick, the boning room manager, gave evidence as to his recollection of the day Mr Blackadder left the company’s premises.

[55] On resumption of the case on 19 January 2000 I was advised that Mr Bruce Stuart Ramsey, who was to give evidence as a company witness and who the Union also wanted to examine, was not going to be in attendance. Mr Ramsey had pressing cattle buying commitments and the Commission was told he would not be coming. This delayed the matter.

…

[58] On 17 February 2000 the Union called Mr Craig Andrew Gillies. Mr Gillies is a boner with many ears experience. He gave evidence in respect of the training procedures that had occurred under the previous owner and what training had occurred to date under the ownership of Mr Ramsey.

[59] The second witness for the Union on 17 February 2000 was Mr Alick James Delaforce who is employed as a boner. Mr Delaforce gave evidence regarding a conversation he had with Mr Walters on 19 January 2000, (the day after Mr Walters gave evidence before me). Mr Delaforce’s witness statement at point 14 is extracted below:

‘On Wednesday 19 January 2000 before commencing work Mr Walters called me up the stairs towards his office and said:

“I got caught out telling lies in Court yesterday”.

And I said ‘You silly bastard I told you not to tell lies.’

He said ‘I am handing in my resignation. I have had enough. When I went home yesterday after Court, I cracked up. I started crying and fell to pieces. I am sick of lying for the fucking fat cunt.’

I said ‘I told you not to lie, you’re a silly boy.’

I then went back to my workstation in the Boning Room. [Exhibit D8]’

…

[61] Mr Stuart Bruce Ramsey was the final witness. Under cross-examination by Mr Davis Mr Ramsey was aggressive, evasive and forgetful. His aggression was as startling as it was inappropriate.

[62] In determining the various issues before me it was necessary to make some preliminary findings of fact. I have set out these findings below:

* I accept the applicant’s version of events regarding the circumstances surrounding the termination of his employment without reservation.

* I accept Mr Gillies evidence as to the training procedures at the respondent’s premises.

* I accept Mr Delaforce as a witness of truth as to the conversation about which he gave evidence between himself and Mr Walters on 19 January 2000.

* I do not accept Mr Ramsey as a frank and open witness. I have formed the view that whenever the truth and Mr Ramsey’s business interests conflict, truth would not be the winner.

* I find that the applicant had a pre-existing medical condition which was more probably than not one which caused him to be unable to perform work in hot neck boning.

* I find that the applicant had not been appropriately trained to perform hot neck boning.

* I find that there was no identifiable need related to the operational requirements of the business for Mr Blackadder to be selected to perform this work. The direction to Mr Blackadder was characterised by the respondent as a move required for the continued operation of the respondent’s business in order to cover a vacancy. There was no evidence to support this proposition and I reject it.

* I find that the applicant did not repudiate his contract of employment, abandon his employment or resign.

[68] It is of great concern that an employer entering into an AWA or certified agreement with its employees fails to abide by those agreed terms, particularly in such critical respects.

* Motivation aside, the direction itself was unreasonable and unsafe and directly resulted in the terminatio of the employment of the applicant.

[70] For these reasons I find that the termination was harsh, unjust or unreasonable.

[71] In accordance with the test expressed in Byrne’s case previously referred to, the termination was in fact in this case harsh and unjust and unreasonable.”

216 Commissioner Redmond ordered reinstatement of Mr Blackadder’s employment.

217 Shortly after Commissioner Redmond’s decision, Mr Blackadder attempted to speak to Mr Ramsey to make arrangements for a return to work. Mr Blackadder was told that he was to stay at home on full pay until further notice. Mr Blackadder then left the plant and went home.

218 On 3 May 2000, Mr Ramsey wrote to Mr Blackadder noting the order for reinstatement within 21 days of 29 March 2000, confirmed that an appeal would be lodged and that on the previous day an application had been made for a stay of the orders of Commissioner Redmond. Mr Ramsey confirmed Mr Blackadder’s reinstatement as a boner on and from 20 April 2000 (with an employment date of 30 April 2000 for full continuity of benefits), a direction that Mr Blackadder would “not be required to report for work or otherwise perform work in order to be entitled to wages and other remuneration”, a direction to undergo a medical assessment and calculation of entitlements on the basis of a weekly wage as a boner plus the average of the tally paid to all other boners in any given week. Mr Blackadder was notified that this position would continue until the results of the medical assessment became known and evaluated by the company.

219 On 26 June 2000, the AIRC (Justice Boulton, Justice Munro and Commissioner Harrison) published a decision in relation to an application by Ramsey Butchering for leave to appeal from the decision and orders made by Commissioner Redmond on 29 March 2000. The Commission made these observations in refusing leave to appeal:

“[10] … The direction to the Respondent to go to the slaughterfloor and perform hot neck boning was given in circumstances where the Respondent had not been given training in relation to the work in question and had never previously performed or been asked to perform such work. The direction was maintained and repeated in circumstances where the Company was aware that the Respondent considered he was being victimised for his participation in legal proceedings by being assigned uncongenial duties; where the Respondent had provided medical evidence to the Company regarding his fitness to do the work in question; and where there was no demonstrated necessity relating to operational requirements of the plant for the Respondent rather than any other boner to be transferred on the particular day or days to relieve or undertake training in hot neck boning work.

[11] In such circumstances, it was open to the Commissioner to take the view that the direction given by the Company was not lawful and reasonable as it would require the Respondent to undertake work where there were serious questions about his capacity to safely perform the work and about the need for him to be assigned that work. Indeed given the expressed concerns of the Respondent about victimisation following his participation in Commission proceedings the previous day, it would not be unreasonable to expect an employer to postpone any transfer to new duties, even if such transfer was shown to be part of a general training program for employees.

[12] In the circumstances of the present matter, the direction given by the Company regarding the transfer of the Respondent to hot neck boning duties and the refusal to allow him to return to work unless he performed such duties for an indefinite period had the effect of forcing the Respondent to leave his employment. It was not disputed in the appeal that the Commissioner applied the appropriate test in determining that the conduct of the Company resulted in the termination of employment. In our view, the finding that the termination was at the initiative of the employer was reasonably open to the Commissioner and was appropriate having regard to the evidence before him.

[13] Further, in our view the findings made by the Commissioner leading to the decision that the termination of the Respondent’s employment was harsh, unjust and unreasonable were reasonably open on the evidence and material before him. We also consider that the making of an order for reinstatement and payment of lost wages was appropriate in the circumstances.

[14] It was conceded that the appeal does not raise questions of law but relates to issues going to the facts and the conclusions which might be drawn from them. It has not been shown that the appeal gives rise to any matters of general principle or issue of public importance. In many respects, the appeal bench is simply being asked to make a reassessment of the evidence before the Commissioner and to draw different conclusions from that evidence. We have considered the submissions presented and the evidence and material which was before the Commissioner. It has not been shown that there has been any substantial error in the exercise of discretionary power by the Commissioner in dealing with the Respondent’s application for relief. Furthermore, we are satisfied that the conclusions reached by the Commissioner in relation to the termination of the Respondent’s employment were reasonably open upon the evidence before him.”

220 A reason put forward in the letter of 3 May 2000 by Mr Ramsey for excusing Mr Blackadder from work was this:

“Our reason for excluding you from physical work until further notice is that arising from the proceedings before the Commission and the tendering of the medical evidence from Dr Bacon, doubts exist as to your physical capacity to perform the duties of a boner not only in relation to the duties associated with Hot Necking on the Slaughterhouse Floor, but more importantly your ability to bone in the Boning Room given the Osteoarthritis in your right elbow.”

221 Mr Blackadder was required to undertake a medical examination with a doctor nominated by the employer before recommencing any duties.

222 Mr Blackadder initially took the view that the order for reinstatement was not conditioned by a requirement to attend a medical examination concerning any matter of physical capacity to undertake boning duties in the boning room. He refused to attend an examination. Entitlements for the week ending 11 June to the week ending 23 July 2000 were not paid.

223 After advice from the AMIEU, Mr Blackadder agreed on 26 July 2000 to undertake a medical examination. Entitlements recommenced. On 10 August 2000, Mr Blackadder was advised an appointment would be made with Dr Castagna. No appointment was notified to Mr Blackadder until 30 January 2001, for an examination in early February 2001.

224 Until the examination could occur, Mr Blackadder was advised all accrued leave entitlements would be used and then payments would resume again. An issue arose concerning the appointment in early February but on 5 April 2001 Mr Blackadder was examined by Dr Castagna. The payment of wages and entitlements although interrupted briefly continued as reflected in the group certificates for the years ending 30 June 2001 and 30 June 2002.

225 Mr Blackadder commenced with the assistance of the AMIEU proceedings in the Federal Court against the Third Respondent seeking orders to enforce the reinstatement order of the AIRC, the imposition of a penalty upon the Third Respondent for breach of that order and certain other orders.

226 In those proceedings, the Third Respondent made no evidential challenges to the findings of the AIRC on the termination of Mr Blackadder.

227 On 10 May 2002, Madgwick J made a declaration that the Third Respondent had breached the order of Commissioner Redmond dated 29 March 2000 by failing to reappoint Mr Blackadder to the position he held immediately before the termination of his services on 5 October 1999. Madgwick J imposed particular penalties upon the Third Respondent and made other orders for the payment of certain monies. Madgwick J concluded that a reinstatement order in exercise of the power conferred by the Act impliedly involved a return of the employee to the workplace. In the light of this finding, Madgwick J felt it unnecessary to decide whether the AWA contained an implied contractual obligation requiring the Third Respondent to provide the applicant with actual work. See Blackadder v Ramsey Butchering Services Pty Ltd [2002] FCA 603.

228 The Full Court, allowed an appeal in part by the Third Respondent although Tamberlin and Goldberg JJ took a different view of the reinstatement power under the Act to that of Moore J.

229 The question of the order to be made by Madgwick J by way of injunctive relief was unable to be resolved between the parties and accordingly, Madgwick J on 21 May 2002 made further orders and published a supplementary judgment. The order of 21 May 2002 directed the Third Respondent to reinstate the applicant to the position in which he was employed prior to the termination of his employment, namely, a boner performing chilled boning work in that part of the respondent’s premises known as the big boning room.

230 The question to be determined on appeal was whether the power conferred upon the AIRC by s 170CH(3)(a) of the Act requiring an employer to reinstate an employee where it has made a finding that the employer terminated the employee’s contract in circumstances which were harsh, unjust or unreasonable, extended to requiring the employer to “provide work” for the employee upon reinstatement. Tamberlin and Goldberg JJ concluded that there was no provision in the AWA which required the Third Respondent to provide Mr Blackadder with work other than a requirement that adequate and sufficient labour be provided by the Third Respondent to follow boners “in order to avoid congestion”.

231 Their Honours concluded, as a matter of construction, that the legislative intention was to re-establish rights or equivalent rights destroyed by the wrongful termination with no conferral of power to provide the employee with more than that to which he was entitled prior to the wrongful termination. In other words, the Act required that the person should be restored to all the contractual entitlements which applied in respect of the position occupied by the employee at the time of the wrongful dismissal but no additional entitlements arise which were not previously vested under the terms of the employee’s contract of employment.

232 The order of Madgwick J was varied to delete any prescriptive reinstatement to the position of ‘a boner performing chilled boning work in that part of the respondent’s premises known as the big boning room’. Moore J respectfully disagreed with the analysis of Tamberlin and Goldberg JJ and concluded that the reinstatement order of Commissioner Bacon properly required the Third Respondent to reappoint Mr Blackadder to the position of a boner undertaking boning in the big boning room.

233 Ultimately, on 27 April 2005, the High Court set aside the orders of the Full Court of the Federal Court and allowed in part an appeal by Mr Blackadder. The High Court concluded that the scope of the power conferred by s 170CH(3) of the Act was broader than simply a reinstatement of the contract of employment and extended to a restoration of the employment situation as it existed immediately before the termination. ‘So far as practicable, the employee is to be given back his “job” at the same place and with the same duties, remuneration and working conditions as existed before the termination’: Blackadder v Ramsey Butchering Services Pty Ltd [2005] HCA 22 per McHugh J at [14].

234 On 3 September 2002, Mr Blackadder received a letter dated 2 September 2002 in these terms:

‘Dear Stephen,

In accordance with our notice given on 21 August 2002, we now advise that there shall not be sufficient stock to kill on Monday 2^nd September 2002.

You shall not be required to work Monday 2^nd September 2002.

The lack of cattle suitable for our customers, caused by seasonal factors including the current drought and subsequent drop in cattle numbers, has caused this closure. The AMIEU has been appropriately advised.

In accordance with your AWA, you are entitled to request payment of your entitlements, if you do make that request all your entitlements will be paid. If you wish to make this request please send your written application to our office.

Yours faithfully

S B Ramsey’

235 On 5 September 2002, Mr Blackadder responded in these terms:

‘Ramsey Food Packaging Pty Limited

Dear Sir,

I refer to the notice of 2^nd of September 2002, which I received on the 3^rd of September 2002 advising that I would not be required for work Monday 2^nd September 2002. I did not receive any notice on the 21^st August 2002 and ask that you confirm when it is anticipated that there will be sufficient stock to resume work. I remain ready, willing and able to resume at that time and in the interim period request payment of my rostered days off.

Yours faithfully

S B Blackadder’

236 On 11 September 2002, Mr Blackadder received a letter dated 10 September 2002 in the same terms as the letter set out at [185]. That letter sought to clarify some confusion about the effect of the decision taken by the employer. The letter says that Mr Blackadder’s employment has been ‘officially terminated’ and that entitlements might be claimed ‘pending re‑employment’. The letter also speaks of ‘possible re‑employment’.

237 On 12 September 2002, Mr Blackadder responded in these terms:

‘S B Ramsey

South Grafton Abattoirs

I acknowledge receipt of your letter of 10 September 2002 and confirm that as I am still employed under the AWA I do not accept that my services have been officially terminated on any valid basis pursuant to an industrial instrument. I remain available to resume full employment at the end of the current shortage of stock period and in the interim, I require payment of my roster days as previously requested during this period. …’

238 On 16 September 2002, Mr Blackadder received a letter from abattoir management dated Friday, 13 September 2002 in the same terms as the letter sent to Mr Delaforce [186]. Thus, Mr Blackadder’s employment was terminated as a matter of construction of the instruments of termination.

239 Mr Blackadder, however, continued to receive periodic payments until 8 December 2002. The continued receipt of payments is inconsistent with actual termination of employment or at least an immediate implementation of a termination decision. Continued payments until 8 December 2002 may have been made either mistakenly or for any unexplained reason. It may be that the letters of termination were mistakenly sent to Mr Blackadder but the evidence demonstrates that he received both the letter of 10 September 2002 and the clarifying letter reasserting the termination of his contract, and dated 13 September 2002. The letters of termination are clear. Employment ceased on one view on 8 December 2002. Reinstatement in performance of the AIRC order had not occurred as a matter of law as the High Court subsequently explained. It seems to me that the proper construction is that the employment of Mr Blackadder was terminated by the letters but he seems to have suffered no financial loss by reason of the termination until 8 December 2002.

240 Counsel for the respondents, Mr Hatcher, says that the pre‑history in relation to the issues concerning Mr Blackadder are much misunderstood. Mr Hatcher says this. At no point did Mr Ramsey tell Mr Blackadder that he was “sacked”. Certainly, Mr Blackadder was asked to undertake hot neck boning tasks and this request was consistent with an expectation on the part of the employer that rotation of tasks would occur. This notion of rotation was something sought by the employees and regarded by the employer as both uncontroversial and important. The sequence of events in relation to Mr Blackadder are simply designed to establish by innuendo conduct concerning Mr Ramsey which would reflect unfavourably upon him or cause adverse inferences to be drawn. Although ultimately a constructive dismissal occurred, it was Mr Blackadder who elected to withdraw from the workplace having been asked to undertake rotational hot neck boning tasks.

241 The difficulty with this explanation is that the immediate point of contention is not so much the dismissal (constructively) but the conjunction of the finding that Mr Blackadder was constructively dismissed, his obtaining a reinstatement order by the AIRC, the subsequent treatment of Mr Blackadder in the context of that order and the consequences for Mr Blackadder of having obtained that order and taken steps to enforce it in the Federal Court of Australia.

Colin Hambly

242 Mr Hambly initially began work at the abattoir in October 1978. On 28 April 1998, Mr Hambly commenced working as a slicer under an AWA with Ramsey Butchering. Mr Hambly worked in the big boning room and in May 1998 became chairman of the Occupational Health and Safety Committee. Mr Hambly contends that disputes arose with Mr Ramsey about the importance and relevance of occupational health and safety issues as a result of which Mr Hambly felt that there was no commitment by Mr Ramsey to a culture of compliance with good practice in the workplace. On 30 June 1999, an OH&S issue arose which brought Mr Hambly into controversy with the supervisor of the big boning room, Mr Robert Walters. On the next day, 1 July 1999, Mr Hambly was instructed to “go hot neck boning”. Mr Hambly protested that he had not been trained for the work, was a slicer by trade and the tasks associated with hot neck boning would place significant pressure on a pre‑existing injury to Mr Hambly’s right shoulder. Although the injury did not prevent him from undertaking his normal tasks, the physical manipulation of the carcass would prove difficult. Mr Hambly says that his pre‑existing injury had been disclosed and was the subject of medical certificates.

243 On that day, 1 July 1999, Mr Hambly had a meeting with Mr Ramsey, Ms Mortimer, Mr Walters and other representatives of management. Mr Hambly asked Mr Ramsey why he had been directed to hot neck boning tasks. He was told that it was an aspect of multi‑skilling practice. Mr Hambly said he could not do the work and Mr Ramsey responded ‘so you’re resigning, and that will be that’. Mr Hambly said that he would contact Mr Davis of the AMIEU and Mr Ramsey made a pejorative unpleasant remark about Mr Davis. On leaving the meeting, Mr Hambly said to Mr Walters that the direction had ‘something to do with Jason Robertson’ and Mr Walters replied ‘I believe so’. Mr Hambly then had a telephone conversation with Mr Ramsey. Mr Hambly was told that he had to do what he was told with respect to hot neck boning. Mr Hambly said he believed the direction to do this work ‘has something to do with Jason Robertson’ and Mr Ramsey responded ‘if you have a guilty conscience you have to live with it’.

244 On 2 July 1999, Mr Hambly obtained a certificate from Dr Palmer and delivered it to Mr Ramsey. Mr Ramsey told him that there was no job for him at the abattoir and contended that Mr Hambly had resigned at the meeting on 1 July 1999.

245 Later that month, Mr Hambly commenced proceedings before the AIRC asserting a constructive unfair dismissal.

246 On 14 February 2000, Mr Hambly obtained an order of the AIRC requiring Ramsey Butchering to reinstate him to the position in which he was employed immediately before his termination of employment on 1 July 1999 and an order for compensation for lost wages.

247 Mr Ramsey sought to appeal that decision. The appeal was dismissed by a Full Bench of the AIRC on 23 June 2000.

248 Prior to that decision, the solicitors for Ramsey Butchering wrote to Mr Hambly asserting that the situation was such that Ramsey Butchering could never have a working relationship with Mr Hambly if reinstatement was to occur and, as a result, Ramsey Butchering desired to sever its relationship with Mr Hambly once and for all and assist him to find alternative employment. Ramsey Butchering on 4 May 2000 took the position that Mr Hambly’s pre‑existing condition had not been disclosed and the failure to do so precluded a reinstatement order. Mr Hambly was requested to attend an appointment with Dr Castagna. On 23 June 2000, Ramsey Butchering wrote to Mr Hambly referring to the Full Bench dismissal of the appeal from the reinstatement order of Commissioner Wilks and directed Mr Hambly to present himself for a medical examination as he had been absent from the abattoir since 1 July 1999 and had not worked as a slicer for approximately 12 months. Like Mr Blackadder, Mr Hambly was told that although he was on the payroll from 26 June 2000, he was not required to report for work until further notice.

249 Some time after that letter, Mr Hambly received payment of 32 weeks pay.

250 Mr Hambly then attended a medical examination with Dr Castagna.

251 Between July 1999 and September 2002, Mr Hambly received a weekly wage subject to interruptions during periods when he was paid accrued entitlements in lieu of wages.

252 On 3 September 2002, Mr Hambly received a letter from Mr Ramsey in the same terms as the letter sent to Mr Blackadder set out at [234]. On 6 September 2002, Mr Hambly responded in the same terms as Mr Blackadder’s response recited at [235].

253 On 10 and 13 September 2002, Mr Hambly received letters from Mr Ramsey in the same terms as the letters recited at [185] and [186]. On 12 September 2002, in response to the letter of 10 September, Mr Hambly responded disputing the efficacy of the termination and asserting that he still remained employed under the AWA. Mr Hambly asserted that he remained available to resume full employment at the end of any current shortage of stock and in the interim, required payment of ‘roster days’ as previously requested.

254 Mr Hambly says that he has never been offered work by the abattoir since the date of his dismissal on 1 July 1999 and on 16 October 2002 Mr Hambly received an employment separation certificate from the abattoir.

Paul Swain

255 Mr Swain commenced work at the abattoir in 1991 as a boner and continued in that position until 1997. On 1 May 1998, Mr Swain recommenced employment as a boner employed by Ramsey Packaging.

256 On 15 April 1999, Mr Swain was directed by Mr Walters, the foreman of the big boning room, to attend the administration office and have a conversation with his employer’s solicitor. A conversation took place concerning Mr Jason Robertson and the contention that Mr Robertson was throwing good meat down a waste disposal chute. Mr Swain said he had not seen such conduct. Mr Swain was asked whether he would be prepared to sign a document about the matter. The next morning, 16 April 1999, Mr Swain was handed a letter signed by Mr Ramsey advising that Mr Swain’s employment with the company had been terminated as of that day.

257 On 30 October 1998, Mr Swain had been handed a letter constituting a first official warning of poor work performance. The warning followed a counselling interview held on 30 October in relation to Mr Swain’s failure to return to his work station on time. That letter contended such matters were serious and repetition would result in disciplinary action including the possibility of termination of Mr Swain’s employment. Mr Swain’s conduct was to be reviewed on 13 November 1998. Mr Swain disputed the allegations put to him.

258 On 18 February 1999, Mr Swain was given another letter of official warning for poor performance following a counselling interview held on 10 February 1999 in relation to an alleged failure to follow work instructions issues by Mr Swain’s supervisor. Again, Ramsey Packaging asserted that the matter was serious and repetition would result in disciplinary action including the possibility of termination of Mr Swain’s employment. Mr Swain’s conduct was to be reviewed again on 24 February 1999. Mr Swain says that the reviews mentioned in both those letters did not take place. Shortly after the receipt of the termination letter on 16 April 1999 Mr Swain commenced proceedings before the AIRC with the assistance of Mr Davis of the AMIEU. On 24 December 1999, Commissioner Jones held that Mr Swain had been unfairly dismissed. No order for reinstatement was made. However, an order for compensation was made. Mr Swain appealed against that part of the decision which did not order reinstatement and on 6 June 2000 a reinstatement order was made together with an order for the payment of certain monies by way of salary and entitlements owing since 15 April 1999. Ramsey Packaging sought leave to appeal to the Full Bench of the AIRC and that application was dismissed on 23 August 2000.

259 On 9 June 2000, Mr Swain received a letter from Ramsey Packaging on behalf of Mr Ramsey advising that although the order required reinstatement of employment as from 12 June 2000, Mr Swain would be placed on the payroll of the company from that date but Mr Swain was not required to report to work until further notice. Mr Swain was to be paid at the rate of a boner with tally for the working of ordinary hours in any given week. Continuity of employment was to be restored from 12 June 2000 in compliance with the order pending the appeal. Since Mr Swain, by 9 June 2000, had been absent from the workplace since 16 April 1999, the company required Mr Swain to attend a medical appointment as to his fitness for work. Mr Swain attended an examination with Dr Castagna. No disability for work was contended. However, Mr Swain did not receive a request to attend work at any time after 12 June 2000. On 12 July 2000, Mr Swain was advised that accumulated entitlements would be paid until discharged, in lieu of wages and once utilised, Mr Swain would then be paid normal weekly wage entitlements until June 2001. Mr Swain says that after that date, he was paid holiday entitlements in lieu of wages and then continued to receive normal weekly wages until the end of August 2002. On 6 March 2002, Ramsey Packaging told Mr Swain that annual leave entitlements would be exhausted in lieu of wages.

260 On 2 September 2002, Mr Swain received a letter signed by Mr Ramsey in the same terms as the letter recited at [234]. On 10 September 2002, Mr Swain received a letter signed by Mr Ramsey in the same terms as the letter recited at [185].

261 On 12 September 2002, Mr Swain contested the termination, asserted a continuing employment relationship under the AWA and asserted that he remained available to resume full employment at the end of the stock shortage period.

262 Following these letters, Mr Swain did not receive any offers of re‑employment from the abattoir and on 16 October 2002, Mr Swain was provided with an Employment Separation Certificate from Ramsey Butchering.

263 The history of each of these three employment relationships reveals some similarities. Mr Blackadder was asked to give evidence by Mr Ramsey’s solicitor concerning a workplace incident involving Mr Swain. He gave evidence upon summons on 27 September 1999 and provided a short statement unhelpful to Ramsey Packaging. The next morning he was constructively dismissed by redeployment to ‘hot neck boning’. Mr Hambly, on 30 June 1999, became engaged in a controversy over an OH&S issue concerning the operation of the boning room. The next day Mr Hambly was constructively dismissed by redeployment to ‘hot neck boning’. Neither Mr Blackadder nor Mr Hambly were trained to undertake hot neck boning, each had a pre‑existing injury which each of them assert was the subject of medical certification demonstrating a physical capacity to undertake boning work and each took proceedings ultimately resulting in a reinstatement order of the AIRC. Mr Swain on 15 April 1999 was asked by Mr Ramsey’s solicitor about his knowledge of conduct by Jason Robertson and whether Mr Swain would sign a document about that conduct. The next morning, Mr Swain was handed a letter of termination of employment. Mr Swain sought and obtained a reinstatement order of the AIRC on 6 June 2000 arising out of a finding of unfair dismissal.

264 Notwithstanding the orders for reinstatement, each man was placed on the payroll of the abattoir but no work was available. No step was taken to achieve a restoration of the employment position as it existed prior to termination or to achieve a situation where so far as practicable, the employee was given back his ‘job’ at the same place and with the same duties, remuneration and working conditions as existed before the termination. Moreover, in each case, the employer directed the employee to attend a medical examination to determine whether the employee was fit to perform work given the long period of un‑deployed skills since termination. The failure to utilise those skills was a function of the election by the employer not to provide physical work to the employee. In each case, for all practical purposes, the employee was first removed unlawfully from employment and then from the date of the reinstatement order held in suspension from work. That suspension continued until Mr Blackadder received the letter of 3 September 2002 and, more particularly, the letter dated 10 September 2002 by which he was told that his services had been officially terminated, that he could elect to receive a payout of all entitlements at the termination date or keep open the option of re‑employment. If the latter election was to be made, Mr Blackadder was invited to advise the employer as soon as possible as to whether entitlements should be held ‘pending possible re‑employment’. In the case of Mr Hambly, he received the letters of 10 September 2002 and 13 September 2002. The 13 September letter reinforced the earlier letter and emphasised that any confusion as to whether termination had been effected could be put at rest because, so far as the employer was concerned, ‘employment had already been terminated’. Mr Swain’s employment was also terminated by the letter of 10 September 2002.

265 The long elapsed period between the dates of the reinstatement orders of the AIRC and the termination conduct in August and September 2002 would, in the ordinary course, suggest that no inference could be drawn that securing the benefit of the reinstatement order was a reason for the conduct of termination.

266 However, the history of these events and the subsequent processes, the immediacy of the response to apparently unhelpful positions adopted by each man, the serious demonstrated character of the order in each case as a remedial reinstatement order addressing harsh, unjust and unlawful termination, the election to treat the reinstatement as a payroll reinstatement without providing each man with an opportunity to deploy his skills in the workplace, reliance upon apparent consequential wasting of physical skills as a basis for testing capacity to re‑engage in the workplace taken together suggest the reinstatement order was a continuing matter of relevance and inferentially a reason for termination. These controversies were matters of real substance and represented an enduring burden as each man remained on the payroll but was deliberately un‑deployed.

267 The evidence provides a basis for inferring that as to Blackadder, Hambly and Swain, the termination of employment was carried out for a reason including that these men had become entitled to the benefit of an industrial order of the AIRC and to that end, had participated in a proceeding under an industrial law and had given evidence in a proceeding under an industrial law as contemplated by s 298L(1)(h)(j) and (k).

268 The constraint upon relying upon the inference that these matters continued to influence the mind of Mr Ramsey as a reason for termination and that the matters described at [203] were inferentially a reason for the termination of the contracts of employment for those individuals, is the question of whether the only reason for termination was a shortage of stock which made livestock processing at the abattoir a practical impossibility thus removing the demand by the operator for the acquisition of labour hire services resulting in an election by the employer entities to terminate the cohort of employees.

The Issue of the Stock Shortage and the Evidence of Mr John Graham Broadway

269 The evidence concerning the shortage of stock for slaughter reveals a conjunction of events. On Monday 19 August 2002, the AIRC made an order terminating a substantial number of the AWAs with effect from 23 September 2002. On that day, Mr Delaforce conducted a meeting of employees to discuss conditions and establish the third consultative committee. On Wednesday 21 August 2002, abattoir management placed a notice on the abattoir noticeboard advising that the plant was operating under a stock shortage as ‘per clause 17 of the AWA until advised otherwise’. On Thursday 22 August 2002, the third consultative committee was elected and on Friday 23 August 2002 notice of the composition of the committee was given to abattoir management. On the following Thursday 29 August 2002, Ms Mortimer placed the notice recited at [182] on the noticeboard and on the same day employees were handed the notice of stock shortage with the additional endorsement that each employee was entitled to request payment of all entitlements. The disputes committee was convened [184] and on 10 September and 13 September 2002 Mr Ramsey sent his letters of termination.

270 Shortly after the dismissal of the entire cohort of employees, the First, Second and Fourth Respondents began re‑engaging labour especially during the period September, October and November 2002. On 16 September 2002, Mr Delaforce, Mr Moss and Mr Davis sought to discuss re‑engagement of Union members of the workforce with Mr Ramsey. Re‑engagement occurred on 17 September 2002 of some individuals. Mr Delaforce says that his name was not on the list [189]. On 17 September 2002, Mr Delaforce and Mr Moss conceived their compromise proposal to resolve re‑employment of all employees [190] which was given to Mr Ramsey. On 19 September 2002, Commissioner Simmonds refused orders sought by the AMIEU concerning the terminations.

271 Each of the individuals the subject of these proceedings (apart from Ms Susan Young) contends that they sought and were refused employment in the re‑engagement period.

272 The applicant says that the notion of a stock shortage is a construct to obfuscate the conjunction of a termination of the cohort of employees in the time frame discussed followed by an immediate re‑engagement of a workforce which left aside members of the Union who had proved troublesome and difficult to Mr Ramsey as reflected in these reasons. In particular, former employees who had contested the working conditions preferred by Mr Ramsey; held dissatisfaction about existing conditions; had participated in consultative committees and had been willing participants in the various procedures in which the AMIEU had a role to play, were left aside. Moreover, the applicant says the transactional offers of employment to some of those individuals, in the circumstances of the offers, is simply a further construct to create evidence of an offer of employment of a very limited kind, generally a single day offered by a letter or communication received in circumstances where the offer was either impossible or difficult to accept. Thus, the offers are said not to be genuine.

273 In order to provide evidence in support of the contention that the stock shortage was simply a construct, the applicant relied upon the evidence of an expert, Mr Broadway. The respondents contested the expertise of Mr Broadway and as a result of a voir dire, I made a ruling that Mr Broadway had established a sufficient foundation for a body of relevant experience so as to give expert opinion evidence on the matters in issue the subject of his report.

274 The evidence of Mr Broadway was particularly called to answer the evidence reflected in the letters of 10 September and 13 September 2002 that a stock shortage was the reason for the terminations. No doubt, the applicant anticipated that the respondents would seek to rebut the contended reasons by relying upon evidence that the stock shortage was the only reason for the terminations. The applicant says, in submissions, that it does not need to rely upon the evidence of Mr Broadway because the presumption arising by operation of s298V has not been rebutted and the onus of proof has therefore been discharged. The applicant, however, says that although aspects of the report of Mr Broadway suffer from some difficulty, the underlying data relied upon by Mr Broadway remains admissible and the integrity of that data is material upon which I might rely in making a finding as to whether there was, at the material time, a shortage of stock available for acquisition in the market by the operator of the abattoir. The applicant says he does not need to prove there was no stock shortage but in any event, the evidence suggests no shortage of stock available to the abattoir at the material time.

275 The difficulty attending the report of Mr Broadway is essentially this. Mr Broadway has not previously provided expert evidence in proceedings before a Court. He was not provided with a copy of the Practice Direction entitled Guidelines for Expert Witnesses in Proceedings in the Federal Court of Australia issued by the Chief Justice on 19 March 2004 and was therefore not astute to some important aspects of the role to be discharged by an independent expert. An expert, of course, enjoys the privilege of being able to express an opinion about a matter in issue and accordingly the expression of that expert opinion must not only be entirely independent and objective but is one given to the Court to aid the trial judge in the determination of the matters in issue.

276 To the extent that a report exhibits features of advocacy on behalf of one of the parties, or is commissioned to make a case for a party, the report is to that extent compromised. In addition, Mr Broadway was provided with certain statistics by the AMIEU described as National Livestock Reporting Service (“NLRS”) data and in cross examination by Mr Hatcher there seemed to be some lack of clarity about the extent to which Mr Broadway authenticated the data independently, relied upon the data or allowed the data to be influential in the formulation of his opinion about the questions put to him by the advisers to the applicant in the letter of instructions.

277 It seems to me that in these circumstances, although Mr Broadway gave evidence with total honesty and with a view to expressing opinions he had formed about the matters the subject of his analysis with a view to assisting the Court, it would be inappropriate to rely upon the opinions formed by Mr Broadway. In making that observation, I make no criticism of the individual who I believe genuinely sought to assist the Court. In making these observations, I am conscious of the comments of Allsop J in Evans Deakin Pty Ltd v Sebel Furniture Pty Ltd [2003] FCA 171 at [676], the remarks of Gleeson CJ in HG v The Queen (1999) 197 CLR 414 at [39] to [43] and the observations of the Australia Competition Tribunal per Goldberg J (President) Mr Latta and Professor Round in Qantas Airways Limited [2004] ACompT 9 at [212] to [227]. The observations of the Australian Competition Tribunal on the use of expert evidence and particularly the role of the expert ought usefully be provided to any expert seeking to give evidence in Court proceedings. However, it seems to me that the underlying data drawn from the Australian Bureau of Statistics (“ABS” or “the Bureau”) and material arising out of a 2001 study of the Australian beef industry by the Australian Bureau of Agricultural and Resource Economics (“ABARE”) remains admissible and useful.

278 The statistical data does not extinguish the possibility that a stock shortage occurred at the relevant time but to the extent that the respondents seek to rely upon this data as a basis for asserting that a presumption arising by operation of s298V is rebutted, the data falls well short of that result. I will turn to the question of the operation of the presumption shortly.

279 The South Grafton Abattoir is located in a region regarded as one of the major cattle producing regions in New South Wales. The ABS conducts a Livestock Census every five years to determine changes in livestock holding patterns in each State of Australia. It updates the census with annual surveys sampling livestock numbers. The last census was held in March 2001 and the results were published by the ABS in June 2002.

280 In order to make the statistics meaningful, the ABS disaggregates data on the basis of Statistical Divisions (“SD”). There are 10 SDs in New South Wales and each SD is broken down into a Sub‑Statistical Division (“SSD”) and Statistical Local Areas (“SLAs”). There are 190 SLAs in New South Wales. Using these SDs, SSDs and SLAs, livestock holdings within precise areas within the State can be identified. The South Grafton Abattoir is located in an SD classified as Mid-North Coast for the purposes of the ABS data. Mr Broadway has examined the data for each SD which lies within a 400 kilometre radius of the abattoir on the assumption that such a distance represents a reasonable catchment within which to draw cattle. I accept Mr Broadway’s opinion on the geographic scope of that catchment. The ABS statistics show that whilst the Mid-North Coast SD makes up 5% of the State’s beef cattle numbers and calf numbers, the combined SDs of Mid-North Coast, Richmond-Tweed and Northern and Hunter SDs represent approximately 46% of the State’s total meat cattle numbers and approximately 45% of the State’s total calf numbers at the time of the census in March 2001.

281 Since the 2001 census, ABS conducted an agricultural survey in June 2002 reflecting upon the 15 month period since March 2001. The survey shows that cattle numbers in New South Wales decreased by 4%. Since March 2001, New South Wales had undergone two winters of below average rainfall and producers across the State were compelled to assess livestock holdings and carrying capacity. The ABS statistics and data from Meat and Livestock Australia suggest that “cattle turnoff” either for live export or sale for slaughter, increased by 7.5% over the previous year and, in particular, there was a significant increase in cow, calf and heifer slaughter. The ABS collects information each month from the processing sector of the numbers of livestock slaughtered and breaks that data down on the basis of species and sex. Information is also collected by the ABS regarding meat production levels which enables the Bureau to determine movements in average carcass weights across all species. Although this information is available on a State by State basis, it is more difficult to isolate the data by reference to each SD within a State. However, the Bureau has provided data aggregated for the three SDs adjacent to the South Grafton Abattoir broken down by cattle and calf slaughter for a period from 1999 to 2003 and, in particular, for the period 1 January 2002 to 31 December 2003.

282 The statistics show that in the quarter July, August, September cattle and calf slaughter rose significantly as against the previous two quarters. In 2002, the statistics show an increase in cattle slaughter and calf slaughter of 16% and 5% respectively over the previous year. These statistics are consistent with the increase in turnoff of cattle.

283 As to the availability of livestock for slaughter, a 2001 study of the Australian beef industry by ABARE demonstrates that saleyard auction accounts for approximately 70% of total livestock purchase transactions in New South Wales. Although these sales are supplemented by other methods, procurement through saleyards is the dominant method and therefore saleyard sales data might usefully suggest something about the availability of stock for purchase in the August 2002 to the end of January 2003. Data for this period has been disaggregated by selling centre of which there are many. The data shows that approximately 50% of purchases by the abattoir were sourced from four saleyards at Casino (25%), Wagga (10%), Taree (6.1%) and Grafton (5.3%). Mr Broadway says, and I accept his opinion on this question, that Casino is one of the largest cattle markets in the eastern States with a total annual throughput of 143,000 head and it represents the principal market for vealer and weaner beasts. Wagga is the third largest cattle selling centre in New South Wales with average yearly yardings of 114,000 head. Grafton and Taree are regional saleyards with insufficient annual throughput to warrant reporting by the NLRS.

284 These NLRS statistics are data concerning cattle numbers sold weekly at each saleyard provided to Mr Broadway by Mr Davis of the AMIEU. The use and circumstances in which Mr Broadway obtained particular information from the AMIEU is one of the difficulties with Mr Broadway’s report. I propose to simply examine the statistical NLRS information to assess whether the data reflects consistency with the ABS statistics showing an increase in cattle turnoff for the period and the significant increase in cattle slaughter and calf slaughter in the 2002 year.

285 In examining these statistics, Mr Broadway concentrated upon the data concerning Wagga and Casino as the statistics suggest that the abattoir sourced more than 35% of its purchases during the period August 2002 to January 2003 from these two centres. Both these centres represent the principal centres for the sale of vealers and weaner types. Mr Broadway contends that the abattoir predominantly focuses upon the processing of vealers, vealer types and weaner calves generally lighter than 250kg live weight. Mr Broadway says the production data for the period 5 July 2002 to 17 January 2003 with the exception of the week 15 to 20 August 2002 demonstrates that up until the abattoir’s closure on 29 August 2002, vealers and vealer types represented an average of 84% of the numbers of beasts slaughtered. In the period after re‑opening of the abattoir from 13 September 2002 until 7 January 2003 the number of vealers and vealer types represented on average 94% of throughput and around 91% of the abattoir’s total meat production.

286 As to the combined yardings for Wagga and Casino in 2002 for vealers and vealer types, overall numbers were lowest during the period May 2002 to the end of July 2002, strengthened by the first week of August 2002, declined in the second week of August, steadied by the end of the month, increased and peaked on 6 September 2002. Numbers did not start to fall away again until the week of 20 September 2002. The statistics for total yardings at Wagga and Casino, not just those confined to the two classes of beasts, demonstrates that yardings for 2002 started to decline after the end of April, trended sharply downwards for two months, trended up throughout July 2002 and August 2002.

287 Yardings concerning vealers and vealer types and statistics concerning total yardings show fluctuation. However, the upward trend through July and August in each case is consistent with increasing turnoff of beasts and ABS data concerning increases in slaughter of cattle and calves during the period. Price data concerning livestock for vealer steers 200‑280kg, vealer heifers 200‑280kg and yearling steers 330‑400kg suggests fluctuations throughout 2002 with prices trending down throughout the early part of August and increasing in the latter part of August into September 2002. The overall trend for the year from 4 January 2002 until 20 December 2002 shows a decline.

288 The result of the data is inconclusive. To the extent that the ABS data reflects a trend, it demonstrates that two winters of below average rainfall between March 2001 and June 2002 resulted in an overall decrease in stock numbers but a 7.5% increase in the turnoff of cows, calves and heifers for slaughter. It demonstrates a significant increase in the cattle and calves for slaughter in 2002. Although reliance upon the NLRS statistics is inappropriate as a primary source of data, the material does suggest broad consistency with the ABS material.

The Evidence of Mr Davis and Further Evidence of Mr Broadway

289 Mr Hatcher has made submissions concerning the threshold hypothesis which must be demonstrated before s298V has any operation and the notion of no demonstrated discrimination.

290 I will address the application of the presumption shortly but assuming for the moment that the presumption properly arises, its operation achieves this result. Once the Employment Advocate proves conduct on the part of the relevant respondent and alleges that the conduct was carried out for a particular reason, a presumption arises that the conduct was carried out for that reason. The applicant bears the onus of establishing the elements of the cause of action on the balance of probabilities but the effect of the presumption is to discharge the onus as to the alleged reason unless the relevant respondent rebuts the presumption. The respondents seek to rebut the presumption (assuming it arises) in reliance upon several matters detailed below. In addition, to the extent that the applicant submits that the evidence satisfies its onus without reliance upon the presumption, the respondents contend that no inference can properly be drawn of a prohibited reason for the conduct.

291 The first of those matters arises out of the cross examination of Mr Davis. Mr Hatcher relied upon this sequence of cross examination.

‘Mr Hatcher - In the Commission, Senior Deputy President Duncan observed that it was the anticipation of Mr Ramsey that there would be less seasonal closures if he could target [a particular market] and obtain animals to meet this market. Do you recall that?

Mr Davis – I recall him giving that evidence.

Mr Hatcher – And you recall the Commission accepting that evidence?

Mr Davis – I can’t recall what happened about it.

Mr Hatcher – Right. And in the period particularly before the close down of Gilbertson’s, there had been an increasing number of stock shortages or seasonal close‑downs – or whatever, occurring at Gilbertson’s, hadn’t there?

Mr Davis – My involvement with Gilbertson’s was not great before the 97/98 period. I understand they had some closures, as other abattoirs had done. Yes, I couldn’t say if it was more or less.

Mr Hatcher – Closures, seasonal closures or stock shortages, or what have you, are not an infrequent occasion in the meat industry?

Mr Davis – That’s correct, because the seasons have an effect on the behaviour of farmers, which has a flow-on effect on the number of cattle put for sale, which obviously has an effect on the operations, because abattoirs compete, essentially, for the same primary product to process; so if there are less in the saleyards because of the farmer’s behaviour in offering less, then there’s less to process, so there’s less to go around and so something gives.’

292 Although Mr Hatcher concedes that these observations of Mr Davis are a high level generalisation, it nevertheless remains, it is said, a direct observation on seasonal stock shortages from someone who ought to know the position.

293 Mr Hatcher relied upon this further cross examination.

‘Mr Hatcher – Now, Sir, in August 2002, this is a period when there were shut‑downs occurring in the meat industry, wasn’t it?

Mr Davis – Can’t be sure of that; it’s a long time ago.

Mr Hatcher – Are you familiar with the Bindaree operation at Inverell?

Mr Davis – I know of it and I visited it there and was involved in some things there, but of a minimal nature. It tended to be other people.

Mr Hatcher – Do you recall there being a shut‑down for a couple of weeks at Bindaree in 2002?

Mr Davis – I don’t recall it, no.

Mr Hatcher – Now, Sir, the Ramsey operation operated without a shut‑down from April 1998 when the AWAs were approved, until the shut‑down in September 2002. I don’t include Christmas close‑downs?

Mr Davis – Right. I think so but I can’t be sure. I think you’re correct.’

294 Mr Hatcher says this is quite telling evidence in that it would not have seemed exceptional to Mr Davis if there had been other seasonal closures and when asked whether the circumstances at the Ramsey operation seemed somewhat unusual in the region, he could not recall whether other operators closed or not, for how long or provide any useful comment.

295 The second body of evidence is the response by the AMIEU when the closure occurred. Mr Hatcher says the Union’s response was not that no stock shortage was occurring. On the contrary, there was an acceptance by the Union that there was a stock shortage. Mr Hatcher says that the point of difference between Mr Ramsey and the Union was not that the stock shortage contention was a sham but what appropriate method would be applied to dealing with the consequences of a stock shortage. Although Mr Davis gave evidence that his predominant concern was the consequences of the stock shortage in terms of the entitlements of the men rather than a forensic analysis of whether there was validity in the reason put forward, Mr Hatcher says that the evidence of Mr Davis should be viewed in the following way. Mr Davis was a man who was the subject of considerable antagonism with Mr Ramsey. He was a man looking to advance any genuine cause of grievance that he could, had done so previously but yet waited a considerable period of time (approximately three weeks) after the initial notification before contending that the stock shortage may not have been genuine.

296 Mr Hatcher contends that Mr Davis was in a position to know events in the meat industry and the practice surrounding a stock shortage. The contemporary events and conduct of Mr Davis do not suggest anything other than a stock shortage taking place. Correspondence took place but the burden of the issue was the orthodoxy surrounding the steps Mr Ramsey needed to take in the face of a stock shortage. Should a termination take place? How should entitlements be treated and other such matters? It is not until the letter of 17 September 2002 that Mr Davis takes issue with the notion of a stock shortage and the matter is then referred to the AIRC on 19 September.

297 The further evidence relied upon by Mr Hatcher emerges from the transcript of the proceedings before Commissioner Simmonds and it concerns the evidence of Mr Delaforce which is said to contain an unequivocal concession of a stock shortage. Mr Hatcher relies upon par 20 of Commissioner Simmonds’s decision of 4 October 2002 in these terms:

‘Commissioner Simmonds – I turn now to consider the issue raised by the Union concerning the shortage of stock. It was a matter that can be dealt with briefly. The only indication to the Commission that the terminations were not on account of a shortage of stock was an assertion to that effect from the bar table and the correspondences of 17 September 2002 addressed to the company. The assertion was challenged by Mr Hatcher and, therefore, I cannot rely upon it. The correspondence takes the matter no further. There is then the evidence of Mr Delaforce. During cross examination he conceded that there was a drought in Northern New South Wales affecting Grafton and that there was presently a shortage of cattle at Grafton saleyards.’

298 Mr Hatcher says that significant weight should be attributed to Mr Delaforce’s views. He worked in the abattoir. He is very familiar with the stock the abattoir requires for production. He speaks with authority, experience and knowledge. Oddly enough, although particular reliance is placed upon Mr Delaforce’s standing, he was not offered any full time employment upon resumption of operations or any period of sustained casual employment. In re‑examination a question was put to Mr Delaforce in these terms.

“Question - When were you in no doubt that there was a shortage of stock?

Mr Delaforce – By the rain that was on the north coast at the time and cattle numbers dropped at the saleyard. I couldn’t tell you – when you say exact time I couldn’t tell you.

Question – Well, about when?

Mr Delaforce – About the time when – prior to us getting notice of the shortage of stock come Thursday, that Thursday when a notice was put up on the noticeboard it wasn’t a surprise to me that that was going to happen.”

299 Mr Hatcher says that this evidence is decisive of the point that a stock shortage was accepted as the prevailing circumstance, unchallenged by the AMIEU until 17 September 2002.

300 It seems to me very difficult to conclude that this evidence establishes a stock shortage at the material time and further that the reason for the termination conduct was a stock shortage. Mr Davis was responding in a period of intense activity to a termination of the workforce made more difficult by a controversy about the appropriate way to deal with the entitlements of each worker. There was sufficient confusion about those matters that Mr Ramsey found it necessary to write a letter on 10 September seeking to clarify the earlier notice to the men and then found it necessary to write another letter on 13 September seeking to further clarify issues arising out of the prior letter and the earlier notice. Plainly enough, there was both concern and confusion about the terminations and the treatment of entitlements. It seems to me that Mr Davis’s focus upon ensuring that Mr Ramsey dealt with the entitlements according to an accepted methodology was the true focus of his concern. No inference can be drawn that because Mr Davis did not agitate the question of whether a stock shortage was a genuine reason for the terminations until 17 September 2002 that Mr Davis had turned his mind to the question, examined the facts, formed a compelling view and acquiesced in the reality of the stock shortage. Mr Davis may well have accepted the explanation contained in the notice and in the two letters but, on looking at the matter more carefully, may have formed a different view. The evidence of Mr Davis does not establish, on the balance of probabilities, a stock shortage. As to the evidence of Mr Davis, I accept his evidence.

301 Further, the evidence of Mr Delaforce simply demonstrates that at the moment in time when the notice was placed on the noticeboard (29 August 2002) ‘it wasn’t a surprise’ to him. He thought there may well have been a basis for concluding that a stock shortage had occurred. He might have been right about that or simply incorrect. It was merely a view.

302 Accordingly, it seems to me that the evidence relied upon by Mr Hatcher does not answer the inferences open on the evidence described at [203] and [263] – [267].

303 Mr Hatcher cross examined Mr Broadway and put a number of matters to him. They included the proposition that Mr Broadway had not taken account of the impact of changes to the United States quota arrangements nor the precise nature of the processed meat product market into which the abattoir was seeking greater entry nor the precise differentiated character of the beasts the abattoir required for slaughter so as to service that particular market. All of these matters went to the basis for the opinion formed by Mr Broadway. However, I do not rely upon Mr Broadway’s opinion except to the extent that I have indicated and, in particular, I do not rely upon his opinion concerning the range of possible responses by an efficiently managed abattoir to market circumstances. I simply rely upon statistical data.

304 The statistical data does not exclude the possibility that the circumstances confronting the abattoir in August 2002 presented a stock shortage. However, the applicant has no obligation to exclude such a possibility. To the extent the statutory presumption applies, it is not rebutted by the respondents by reliance upon the evidence of Mr Davis, Mr Delaforce or Mr Broadway. Moreover, the circumstances appearing in the evidence as I have described give rise to reasonable inferences concerning a reason for termination and subsequent refusal to employ which are not merely conflicting inferences of equal degree of probability. In drawing such inferences, their Honours Dixon, Williams, Webb, Fullagar and Kitto JJ in Bradshaw v McEwans Pty Ltd 217 ALR 1 at pg 6 observed:

‘All that is necessary (in drawing a particular inference) is that according to the course of common experience the more probable inference from the circumstances that sufficiently appear by evidence or admission, left unexplained, should be that the injury arose from the defendant’s negligence. By more probable is meant no more that upon a balance of probabilities such an inference might reasonably be considered to have some greater degree of likelihood.’

The general principle was put by their Honours at page 5 in these terms:

‘Of course as far as logical consistency goes many hypotheses may be put which the evidence does not exclude positively. But this is a civil and not a criminal case. We are concerned with probabilities, not with possibilities. The difference between the criminal standard of proof in its application to circumstantial evidence and the civil is that in the former the facts must be such as to exclude reasonable hypotheses consistent with innocence while the latter you need only circumstances raising a more probable inference in favour of what is alleged. In questions of this sort where direct proof is not available, it is enough if the circumstances appearing in the evidence give rise to a reasonable and definite inference: they must do more than give rise to conflicting inferences of equal degrees of probability so that the choice between them is a mere matter of conjecture. But if circumstances are proved in which it is reasonable to find a balance of probabilities in favour of the conclusion sought then though the conclusion may fall short of certainty, it is not to be regarded as a mere conjecture or surmise.’

305 See also, Luxton v Vines (1952) 85 CLR 352 per Dixon, Fullagar and Kitto JJ at pg 358; Jones v Dunkel (1959) 101 CLR 298 at pgs 304 – 305 per Dixon CJ; pg 310 per Menzies J; and pgs 318 – 319 per Windeyer J; Girlock (Sales) Pty Ltd v Hurrell (1982) 149 CLR 155 per Stephen J at pgs 161 – 162 and per Mason J at pg 168; The Trustees of the Property of John Daniel Cummins v Mary Cummins [2006] HCA 6, 7 March 2006 per Gleeson CJ and Gummow, Hayne, Hayden and Crennan JJ at [33]. In drawing these inferences I have had regard to the scope of the allegations, the standard of proof and the characterisation of the conduct for the purposes of the Act.

The Post-Dismissal and Re-Engagement Conduct

306 The steps taken by particular individuals to seek and obtain employment during the re‑engagement period are these:

Stephen Blackadder

· On 3 September 2002, Mr Blackadder received the letter dated 2 September 2002 [234] and on 5 September 2002 [235], Mr Blackadder wrote to the First Respondent enquiring when there would be sufficient stock to resume work at the abattoir. Mr Blackadder said he remained ready, willing and able to resume work.

· Mr Blackadder received periodic payments from the abattoir until 8 December 2002.

· On a few occasions since 8 December 2002, Mr Blackadder telephoned Mr Marshall to ask whether there was any possibility of his returning to work. Mr Blackadder was told on each occasion that “there is no work available for you”. At no time has anyone on behalf of abattoir management contacted Mr Blackadder to offer him work.

· In mid January 2003, Mr Blackadder sought payment of accumulated holiday pay. Mr Blackadder was told he would be required to take payment of all accrued entitlements. All entitlements were paid and on 20 January 2003 Mr Blackadder received an Employment Separation Certificate from abattoir management.

Colin Hambly

· On 3 September 2002, Mr Hambly received a letter recited at [234] and on 6 September 2002 [252], Mr Hambly responded in the same terms as Mr Blackadder’s letter at [235] confirming his willingness and ability to resume the work.

· Mr Hambly also received the letters dated 10 September and 13 September 2002 [185] and [186] and responded on 12 September 2002 disputing those matters.

· On the morning of 17 September 2002, Mr Hambly attended the abattoir gate and sought work. He asked whether he was allowed in according to a list held by the security guard. The guard made a call and asked, “Should I admit Colin Hambly?”. After the call, the guard said, “You will not be admitted today or any other day”.

· On 18 and also 19 and 20 September 2002, Mr Hambly presented himself at the gate of the abattoir and asked whether he would be allowed in for work and was told that he would not be admitted for work.

· Mr Hambly has not been offered work by the abattoir since 1 July 1999. On 16 October 2002, Mr Hambly received an Employment Separation Certificate.

· After the week commencing 16 September 2002, Mr Hambly made a number of telephone calls to the abattoir inquiring of Mr Marshall whether he would be required for work and whether there was any work available for him. He was told no work was available. On 13 February, the last occasion on which Mr Hambly made an inquiry of abattoir management, he spoke to Mr Marshall and asked whether any further employment would be available at the abattoir. Mr Marshall said he would send Mr Hambly by post an application form for work at the abattoir. No such form was sent. On 25 February 2003, Mr Hambly wrote to Mr Marshall saying, “When we spoke you indicated that you would also send me an application for employment form that I requested”. Mr Hambly says he remained available for work until mid 2003.

· Mr Hambly says he sent three letters to Mr Ramsey advising him he was available for work. However, Mr Hambly did not keep copies of those letters.

Paul Swain

· On 12 September 2002, Mr Swain sent a letter of that date to Mr Ramsey advising that he remained available to resume full employment at the end of the stock shortage period. Mr Swain did not receive any offer of re‑employment from the abattoir and on 16 October 2002 he was provided with an Employment Separation Certificate. Mr Swain has not heard from the abattoir since that date apart from a conversation he had with Mr Marshall on 18 January 2003 when Mr Swain said he wanted to apply for a boning job and was told the abattoir was not employing labour at that time.

· Mr Swain says that he remained available for work and had he been offered further employment he would have accepted it. He says he was available for work.

Alick Delaforce

· On the morning of 17 September 2002, Mr Delaforce attended the gates of the abattoir and asked the security person whether Mr Delaforce was on the list of workers to be allowed in for work. Mr Delaforce was told he was not on the list.

· Later that day, Mr Delaforce received a telephone call from Ms Mortimer in which she said that work was available for him at the abattoir on 18 September 2002.

· On 18 September 2002, Mr Delaforce together with Mr Moss attended the abattoir gate and submitted their proposal for a general resumption of work for all workers.

· Mr Delaforce did not work on Wednesday, 18 September 2002 and did not attend the abattoir on 19 or 20 September 2002 as he was in Sydney at AIRC proceedings concerning the termination of the contracts of employment.

· On 28 November 2002 at 4.15pm, Mr Delaforce received a letter dated 26 November 2002 offering him work on 27 November 2002. On 29 November 2002 at 2.30pm, Mr Delaforce received a letter dated 28 November 2002 offering him work on 29 November 2002. At 3.20pm on 29 November 2002, Mr Delaforce attended the abattoir and told Mr Marshall that he was available for work. Mr Marshall noted Mr Delaforce’s willingness to work. On 2 December 2002, Mr Delaforce sent a letter to Mr Marshall advising that he appreciated the offer of work for the day on 29 November 2002 but for the period Monday to Wednesday of every week Mr Delaforce had accepted casual employment elsewhere. Mr Delaforce advised that he would make himself available for work at the abattoir on Thursdays and Fridays.

· On 4 December 2002, Mr Marshall told Mr Delaforce that there would be work for him on the following day on the slaughter floor. Mr Delaforce worked at the abattoir on 5 December 2002. On the afternoon of 5 December 2002, Mr Delaforce received a letter dated 4 December 2002 offering him employment for 5 December 2002.

· Apart from these offers of work, Mr Delaforce has never received any other offer of work. Mr Delaforce says he remained willing and able at all times to work subject to those occasions when he says he was compelled to take on casual work because the abattoir did not offer any continuity of employment.

Paul McKenzie

· On Friday 13 September 2002, Mr McKenzie spoke to Mr Marshall and said that he was still on annual leave which would expire on 18 September. Mr McKenzie asked whether he could come back to work then. Mr Marshall said, ‘Not at the moment, there is no work for you’. Mr Marshall said, ‘We’ve just got so many coming in and there is not enough work for you at the moment’. Mr Marshall said he would let Mr McKenzie know when work was available for him.

· On Monday 16 September 2002, 50 to 60 former employees went back to work and 120 did not.

· Each morning of the week commencing Monday 16 September 2002 (apart from 18 September), Mr McKenzie attended the abattoir gate and asked the security guard whether he was on the list of workers to be allowed in for work that day. Mr McKenzie was told he was not on the list. On 18 September 2002, Mr McKenzie attended a meeting of workers outside the abattoir gate. Work was available for Mr McKenzie for 18 September 2002 but consistent with support to fellow workers, Mr McKenzie did not work that day.

· On Friday 20 September 2002 at 5.45am, Mr McKenzie attended the gate of the abattoir and asked the security guard whether his name was on the list for work that day. He was told it was not. Mr McKenzie again presented himself for work that day and was told by the security guard that his name was not on the list of workers to be allowed to enter the abattoir for work that day.

· Mr McKenzie presented himself again each day throughout the following week and again the person on the gate told him each time that his name was not on the list for work.

· In the week commencing 30 September 2002, Mr McKenzie telephoned the abattoir on at least two occasions and asked Mr Marshall whether there was any further work for him. Mr Marshall told him that he was not on the list of those to be offered employment that day. Mr McKenzie said to Mr Marshall, ‘Can you call me and let me know when you are offering me work?’ Mr Marshall said, ‘Okay’. Mr McKenzie asked ‘When is that likely to be?’. Mr Marshall said, ‘When work becomes available’.

· Mr McKenzie then sought work in other places securing casual work, mowing lawns and employment with Caringa Support Services in Grafton.

· On 26 November 2002, Mr Marshall telephoned Mr McKenzie and told him that there was work for him the following day on the slaughter floor. Mr McKenzie said that he had casual work elsewhere but would check the roster and see whether he could be available. He was available. He called Mr Marshall and told him he was available. Mr McKenzie was told to be available at 7 o’clock and asked Mr Marshall whether ‘this will be a continuing thing’. Mr Marshall said, ‘No, you are being offered work only one day at this stage’. Mr McKenzie asked when he could be expected to be offered more work and was told, ‘when it becomes available, maybe’.

· Mr McKenzie went to the boning room to reconnect with former work mates and was told that he would be working on the slaughter floor. Mr McKenzie presented himself to the supervisor on the slaughter floor and was told, “You will be doing hot neck boning. Have you done that before?” Mr McKenzie said he had never done that work. Mr McKenzie undertook the work with another fellow worker. Mr McKenzie found the work difficult and the foreman allocated him to another job. Mr McKenzie spoke to Mr Marshall and asked for work on the slaughter floor. On 28 November 2002, Ramsey Packaging wrote to Mr McKenzie asserting that Mr McKenzie had not disclosed an injury that prevented him from performing hot neck boning tasks. Mr McKenzie asserted that he had suffered some aggravation to his shoulder. A few days after 27 November 2002, Mr McKenzie made enquiries of Mr Marshall as to whether further work would be available and was told that there was no work for him. Mr McKenzie sought payment of entitlements, was paid and was given Employment Separation Certificates on 16 October 2002 and 23 December 2002.

Trevor Moss

· On 16 September 2002, Mr Moss attempted to speak with Mr Ramsey concerning re‑engagement of the workforce. Mr Davis was present. Mr Davis advised Ms Mortimer that the abattoir workers had resolved that none of them would go back to work until all of the workers were allowed to work. Ms Mortimer said that Mr Ramsey would be ‘sticking to his list of workers’.

· Later on 16 September 2002, Mr Marshall told Mr Moss that work was available for him the following day. Mr Moss said he could not work that day in support of other workers not offered jobs.

· On 17 September 2002, Mr Moss attended the gate of the abattoir and was told that his name was on the list for work. Mr Moss did not work that day in support of fellow workers. On that day Mr Moss, Mr Paul McKenzie and Mr Davis formulated a compromise proposal to try and secure a re‑engagement for fellow workers. Mr Moss was engaged on 18 September in AIRC proceedings for the following day. Mr Moss was not offered any further work at the abattoir except that on 27 November 2002, Mr Moss received a letter from Ramsey Packaging dated 26 November 2002 offering him work for the following day, namely, 27 November. Mr Moss, in any event, could not work at the abattoir on that day because he had taken work in Casino.

· On the Thursday and Friday following 19 and 20 September 2002, Mr Moss called at the gate of the abattoir and was told that he was not on the list of individuals to be allowed in for work on those days. On 16 October 2002, Mr Moss received an Employment Separation Certificate from the abattoir. On 24 October 2002, Mr Moss asked Ms Mortimer whether there was any work available for him at the abattoir and was told no work was available. Mr Moss sought other casual work and secured a job as a boner in late October 2002 with North Coast Meat Company at Casino. Mr Moss worked there as a casual until August 2003 when his position was made permanent. He was working casually for that company on 26 and 27 November 2002.

Terrence Brooks

· On Monday 16 September 2002, Mr Brooks presented for work but was told that his name was not on the list for work.

· On 17, 18 and 19 September 2002, Mr Brooks presented for work and was told that his name was not on the list for work on those days.

· On Friday 20 September 2002, Mr Brooks presented at the gate and was told that his name was on the list. Mr Brooks entered the abattoir. On that day, Mr Ramsey stood outside the locker room before the workers including Mr Brooks went into the boning room. Mr Brooks says he heard Mr Ramsey say, “Now that this shit fight is over, you work with me, we’ll be right. Everyone will be right and I’ll have the new agreement in your hands in two weeks”. At the completion of work on that day, Mr Broadrick told Mr Brooks that he would be notified when the abattoir required him again. On several days after 20 September 2002, Mr Brooks made enquiries about the availability of work and was told on each occasion by office staff that no work was available. Mr Brooks obtained other casual work.

· On 27 November 2002, Mr Brooks received a letter at his home dated 26 November 2002 offering work for one day on 27 November 2002. The only two days of work offered to Mr Brooks were 20 September 2002 and 27 November 2002. On 16 October 2002, Mr Brooks obtained an Employment Separation Certificate.

Rodger Campbell

· On 17 September 2002, Mr Campbell approached the security guard at the abattoir gate and asked whether he was on the list for work that day. He was not. On 18 September 2002, Mr Campbell again presented at the gate and asked whether he was on the list for work and was told he was not. Later that day, Mr Campbell was offered a day’s work for the following day. He did not work that day, 19 September 2002, because of a commitment to support fellow workers not offered work.

· On 20 September 2002, Mr Campbell checked at the gate again and was told he was not on the list for work.

· In October 2002, Mr Campbell sought work from other sources. On 24 November 2002, Mr Campbell travelled to Queensland to look for alternative work. Mr Campbell was offered work for 27 November 2002 but was not able to work on that day as he was in the Mackay region seeking other work.

· Apart from the offers of work on 19 September and 27 November 2002, no other work has been offered at the abattoir. In late December 2002, Mr Campbell was confronting financial difficulties and sought payment of any outstanding entitlements. He received them on 17 January 2003 together with a Separation Certificate.

Gregory Forrest

· On 16 September 2002 at 6.00am, Mr Forrest presented to the security guard at the gate of the abattoir and asked whether he was on the list of employees for work that day. He was told that he was not to be allowed into the abattoir for work.

· On the morning of each day for that week Mr Forrest presented at the abattoir gate and asked whether he was on the list for work and was told that he was not. On 19 September 2002, Mr Forrest was offered one day’s work for the following day “to be paid at labourer’s rates”. On 20 September 2002, Mr Forrest presented for work and was allowed to enter the abattoir for work. Mr Forrest assembled his work clothing, got dressed, left the locker room and approached Mr Broadrick. Mr Ramsey was addressing 80 to 90 workers at that time. Mr Forrest says he has a clear recollection of Mr Ramsey saying, “This is how the place will be run now, no RDOs, one sick day and you will be gone, you will be paid the federal award until such time as a new agreement is worked out. There will be no tally system and you will be paid in accordance with the weight per kilo of the box”. Mr Forrest handed Mr Broadrick a full Medical Clearance Certificate. Mr Broadrick gave the certificate to Mr Ramsey who told Mr Forrest in unpleasant language that he would not be undertaking boning work and if he did not like it he could leave.

· Mr Forrest has not been offered work at the abattoir since that date. Three times the following week Mr Forrest presented at the gate of the abattoir and was told that his name was not on the list for work.

Michael McKenzie

· On 13 September 2002, Mr McKenzie called Mr Marshall and asked him when he could start work. Mr McKenzie was told that his name was not on the list. Each morning during the week starting Monday 16 September 2002, Mr McKenzie attended the front gate of the abattoir and asked whether he was on the list for work (except Friday 20 September 2002) and was told that he was not on the list. On Friday 20 September 2002, he was told he was on the list. Mr McKenzie went back to work as a boner that day. Mr McKenzie had not received any contact or telephone call but was simply advised on presenting at the gate that work would be available on that day.

· On Monday 23 September 2002, Mr McKenzie presented for work at the gate but was told that his name was not on the list. On the following Tuesday, Wednesday and Thursday, Mr McKenzie was told the same thing. On Thursday 26 September 2002, Mr McKenzie telephoned Mr Marshall and said that he would not attend the abattoir any longer to see if his name was on the list but would call each morning instead. Mr McKenzie made a telephone call to the abattoir every day for a week at approximately 6.00am and was told by Mr Marshall and Mr Allen that his name was not on the list for work that day. After taking these steps, Mr McKenzie told Mr Marshall in a telephone call to please let him know if further work would be offered to him. Mr McKenzie received no offer of work apart from 20 September 2002. On 16 October 2002, Mr McKenzie received an Employment Separation Certificate.

· On 2 December 2002, Mr McKenzie received a letter dated 29 November 2002 which offered him employment “for tomorrow 29 November 2002”. On 16 December 2002, Mr McKenzie asked to be paid any outstanding entitlements.

John Young

· On Monday 16 September 2002, Mr Young received a call from Mr Marshall who told him work was available for him on 17 September 2002. Mr Young asked whether work was available for his wife on that day. He was told Susan Young would not be required. Mr Young says that having regard to the resolution of the men, he did not present for work on 17 September 2002.

· No work was offered on 18 or 19 September 2002. On 19 September 2002, Mr Young handed a note of a request for the payment of entitlements to the guard at the abattoir gate. On 20 September 2002, Mr Young was told that he was not on the list for work that day. Mr Young did not receive any further offers of employment from the abattoir and has not worked there since.

307 It is clear from the circumstances described at [188] to [190] that the abattoir had commenced employing workers at least by 17 September 2002. Attempts were made by a number of the workers to secure employment on 19 and 20 September, throughout the course of the following week and during October and November. All of these men had worked for the South Grafton Abattoir during the days of operation by Gilbertson [115]. The relationship had been a long‑standing one. In any event, each one of the 12 employees had been engaged in full time employment at the South Grafton Abattoir from either March or April 1998. Yet, during a period of re‑engagement, none of the 11 former employees were offered full time work or any period of employment of any duration such as consistent weekly casual employment. Offers of employment were made to some of these former employees and the limited scope of that engagement might well give rise to certain inferences that the offers were not genuine offers of work. According to Mr Blackadder who was not cross‑examined or challenged, he received periodic payments until 8 December 2002 and was told thereafter that there was no work available for him. As to Mr Hambly, he made attempts to secure work on 17, 18, 19 and 20 September 2002, to no avail. Mr Swain sought employment by his letter of 12 September 2002, to no avail.

308 On 17 September 2002, Mr Delaforce was offered work for the following day but did not take up that offer of one day’s employment because he was trying to secure a general resumption for work both for himself and all workers. Together with Mr Moss he had formulated a proposal to that effect. On 19 and 20 September 2002, he was present before the AIRC.

309 On 28 November 2002, he received the letter dated 26 November offering him work on 27 November 2002, that is, one day’s employment offered after the event. On 29 November 2002, Mr Delaforce received a letter dated 28 November 2002 offering him work for the day on which the letter was received. On 29 November 2002, Mr Delaforce spoke to Mr Marshall and told him he was available for work. Not surprisingly, these very transactional offers of work for a day here and there (sometimes after the event) caused some individuals to seek work otherwise.

310 On 2 December 2002, Mr Delaforce told Mr Marshall that he had taken work for the period Monday to Wednesday of every week. On 4 December 2002, Mr Delaforce was offered work for a day on the following day on the slaughter floor. Can it seriously be said that these transactional offers of work on a day from time to time episodically is anything other than a refusal to employ in the context of a group of men who had been long term full time employees since the day on which the abattoir was re‑opened? A similar pattern emerges in relation to Mr Paul McKenzie, Mr Moss, Mr Brooks, Mr Campbell, Mr Forrest and Mr McKenzie. It is true that on 16 September and 17 September 2002 a position had been taken by many of the workers that none of the former employees would return to work until all workers were allowed to work but these actions were part of the immediacy of a response to the dismissal conduct designed, in fact, to secure work for all.

311 On 18 and 19 September proceedings before the AIRC occurred to test the validity of the conduct. Once it became apparent that the further proceedings in the AIRC would not secure a return to work for all and Mr Ramsey had refused to consider the compromise proposal of Mr Delaforce and Mr Moss [181], thereafter, no offers of work were made other than particular offers of one day to particular individuals from time to time. In the case of Mr Brooks and Mr Forrest, each of those men give evidence of an address by Mr Ramsey on 20 September 2002 concerning his success in achieving particular conditions of employment under which the abattoir would function. That evidence suggests that Mr Ramsey was influenced both in the termination conduct and in the approach to recruitment of establishing a workplace which did not exhibit the conditions which had been the subject of dissatisfaction in the past.

312 On 20 September 2002, Mr Forrest says that he heard Mr Ramsey addressing approximately 80 to 90 workers who had been re‑engaged by that time. Mr Ramsey was explaining the new features of the conditions of employment which would prevail in the post re‑engagement environment as compared with the previous conditions [306]. The evidence of these witnesses gives rise to an inference that in re‑employing a cohort of employees to enable the abattoir to resume orthodox operations, a range of jobs or positions falling within the field of task specific activities characterising abattoir operations (see generally [106] – [115]) were filled, that is, offers made and individuals employed and others not. The applicant is not in a position to give evidence of which offer was made for what position to which individual on what particular day and the person who was appointed. That information lies within the knowledge of the respondents. Nevertheless, the abattoir opened. It functioned and continued to function. The evidence shows that by 20 September 2002, 80 to 90 people at least were re‑engaged. I infer that all of the positions occupied and the tasks undertaken by the 12 individuals in issue here from which they were dismissed, remained as positions to be filled and were filled, among many other positions.

the transfer of employment

313 The respondents say that the contract of employment pursuant to the AWAs was transferred or assigned from the initial employer to another Ramsey entity. The effect of the contention is set out in the matrix below.

Employee	From	To	Date
Blackadder	Third Respondent	First Respondent	3 September 2001
Brooks	Always the First Respondent
Campbell	First Respondent	Second Respondent	January 2002
Delaforce	Third Respondent	First Respondent	3 September 2001
Forrest	Third Respondent	First or Second Respondent	3 September 2001
Forrest		First Respondent	March 2002
Hambly	Third Respondent	First Respondent	3 September 2001
M R McKenzie	Third Respondent	First Respondent	3 September 2001
P F McKenzie	Third Respondent	First Respondent	3 September 2001
Moss	Third Respondent	First Respondent	3 September 2001
J K Young	Always the Fourth Respondent
S J Young	Always the First Respondent
Swain	Always the First Respondent

314 Accordingly, the respondents contend that the contract of employment was transferred or assigned in respect of 8 of the 12 employees. There is no pleading of the facts giving rise to the assignment but Mr Hatcher in submissions says that the evidence demonstrates that each employee was told their employment had been transferred and thereafter the transferee paid the wages of the employee.

315 It is true that wage slips for a number of the employees demonstrate that an entity other than the original employer was making wage payments. However, there is no evidence that any of the employees consented to an assignment or transfer of their employment. No new AWA was submitted to any of the employees which might have actively drawn to the attention of each individual the proposal to transfer their employment to a new entity and in the face of which an actual or implied consent might have arisen. The payment of wages by one Ramsey company might simply have reflected an administrative arrangement within the Ramsey group of companies for the discharge of that obligation. I can find no evidence which satisfies me that an assignment of the AWA occurred. In Noakes v Doncaster Amalgamated Collieries Ld (1940) A.C. 1014 at 1018 Viscount Simon L.C., observed:

“Counsel for the appellant argued that a contractual right to personal service was a personal right of the employer and was incapable of being transferred by him to anyone else and that a duty to serve a specific master could not be part of the property or rights of that master capable of becoming, by transfer, a duty to serve someone else. It is, of course, indisputable that (apart from a statutory provision to the contrary) the benefit of a contract entered into by A to render personal service to X cannot be transferred by X to Y without A’s consent, which is the same thing as saying that, in order to produce the desired result, the old contract between A and X would have to be terminated by notice or by mutual consent and a new contract of service entered into by agreement between A and Y. The rule is so strict that if the contract is between individuals on both sides and X dies, the contract of service is immediately dissolved – Farrow v Wilson (citation omitted).”

316 In the present case there is no express assignment from the third respondent or the first respondent to the transferee entities. The evidence of the pay slips do not sustain an inference that the presumptive assignment was ever accepted by any of the employees. In Textile Footwear and Clothing Union of Australia v Bellechic Pty Ltd & Ors [1998] FCA 1465, Ryan J at pg 9 expressed doubt whether the nomination of a new employer on pay slips, the issuing of group certificates and the payment of superannuation contributions could give rise to an inference that a presumptive assignment was ever accepted by the individual employees. Further, there is no evidence which demonstrates that the precise inter‑relationship between the respondent entities or any other entity within the Ramsey group of companies relevantly associated with the abattoir operations, was ever brought to the active understanding of the employees. The much more likely inference is that any employee who became conscious of the title of a particular entity assumed that entity discharged an administrative organisational role on behalf of the relevant employer. There is no basis on the evidence for elevating those matters to the position of an actual or implied consent to an assignment. In addition, as between the abattoir operation and employees, the evidence does not suggest any conscious differentiation between particular entities. Exhibit 148 identifies the various methods adopted by the respondents for the description of the respondents. Examples are these.

Deponent/Exhibit No.	Description
Delaforce – 4	“NOTICE TO EMPLOYEES OF RAMSEY GROUP OF COMPANIES” RE proposed certified agreement
Delaforce – 9	“NOTICE TO EMPLOYEES OF THE SOUTH GRAFTON ABATTOIR” RE proposed certified agreement
Delaforce – 11	Letter 22-02-02 “SOUTH GRAFTON ABATTOIR” – “the employing companies” – “management” – “we certainly encourage” – “S B Ramsey Managing Director”
Delaforce – 12	Letter 08-03-02 “SOUTH GRAFTON ABATTOIR” – “has come to our knowledge “R J Mortimer Abattoir Administration”
Delaforce – 16	Letter 22-02-02 Memo re certified agreement “SOUTH GRAFTON ABATTOIR” – “S B Ramsey for and on behalf of South Grafton Abattoir”
Delaforce – 21	Letter 06-08-02 “SOUTH GRAFTON ABATTOIR” – “Stuart Ramsey For and on behalf of the employers”
Delaforce – 24	Letter Stock shortage notice 29.08.02 “SOUTH GRAFTON ABATTOIR” – “In accordance with our notice given on 21 August …”

317 These references suggest that no particular differentiation as between the respondents was a matter of emphasis to Mr Ramsey in the dealings with the employees. The operation was the South Grafton Abattoir and the particular arrangements of entities and the roles they performed in the conduct of the abattoir was a matter of internal domestic organisation.

the australian workplace agreements

318 In support of the notion that invoking a stock shortage by the respondent employers was a construct to obfuscate the termination of the employees for a prohibited reason, the applicant says significant financial advantages accrued to the employers by invoking a stock shortage rather than making the employees redundant. The argument is put this way. Clause 17 deals with shortages of stock. Clause 17.1 concerning weekly employees is in these terms:

‘Where the employer, on account of shortage of stock, gives notice of termination of employment to a weekly employee and immediately upon the expiration of that notice employs him as a casual employee, such employee shall be paid in any week after such expiration in which less than five days work is offered, at the rate of 1-5^th of the appropriate weekly rate plus 15% for each day worked.’

Nothing in cl 171. requires the employer to effect the termination. The clause creates certain consequences in the circumstances of the clause. Clause 46 deals with termination, change and redundancy. The clause applies in respect of full time and part time employees in the classifications described within the AWA. Clause 46.2 provides:

‘Where the employer terminates the services of employees as the direct result of seasonal factors affecting the meat industry or shortages of livestock, the employer shall not be required to pay severance pay to the employees so terminated.’

319 The employer is required to notify the Union and in the event that the Union, after discussions with the employer, is not satisfied that the terminations are the direct result of genuine seasonal factors or shortages of livestock and no agreement can be reached with the employer, the matter of the terminations is to be referred to the AIRC. For the purposes of the AWA, the terms ‘seasonal factors’ and ‘shortages of livestock’ refer to the following industry features ‘climatic features such as droughts, floods and fires and changes in the seasons; and animal breeding cycles’ (see cll 46.5 and 46.6).

320 Redundancy is defined by cl 46.14 in these terms: ‘where an employer has made a definite decision that the employer no longer wishes the job the employee has been doing to be done by anyone pursuant to par 46.8 “Introduction of Change”, and that decision may lead to the termination of employment, the employer shall hold discussions with the employees directly affected and with the Union to which they belong.’ Clause 46.8 deals with ‘Introduction of Change’ and provides ‘where the employer has made a definite decision to introduce major changes in production, program, organisation, structure or technology that are likely to have significant effects on employees, the employer shall notify the employees who may be affected by the proposed changes and the Union to which they belong’. A plant closure is a major change in production. Clause 46.33 deals with severance pay and provides ‘where an employee is to be terminated pursuant to pars 46.14, 46.15 and 46.16 of this clause, subject to further order of the AIRC, the employer shall pay the following severance pay in respect of a continuous period of service’. Clause 46.34 then sets out incremental entitlements to severance pay. For individuals who have been employed for a period of approximately four years or more, an employee under 45 years of age would be entitled to 12 weeks severance pay and an employee over 45 years of age would be entitled to 15 weeks severance pay.

321 Accordingly, the closure of the plant due to major changes in production, falls within cl 46.8. Terminations arising from that circumstance fall within the redundancy provisions of cl 46.14. Such terminations would attract significant severance pay entitlements. However, if the terminations are characterised as a direct result of ‘shortages of stock’, considerable savings accrue to the employer. In other words, the operator of the abattoir had a financial incentive to call, in aid of a termination of contracts of employment by Ramsey Companies related to it, an explanation that did not involve making severance payments whereas terminations of employment derivative of genuine production changes at the abattoir would involve such payments.

322 The applicant invites an inference to be drawn that a claim of a stock shortage was invoked to effect a reduction in employment levels in response to the termination of the AWAs by closing the plant, terminating the contracts and then re‑opening shortly afterwards with those employees who were willing to accept Mr Ramsey’s conditions pending a preferred new agreement. The explanation of a stock shortage in the context of the actual events is said to be consistent, as a matter of inference, with the prohibited reasons alleged. Mr Ramsey, from the outset of his operations stressed the need for the particular conditions contained in the AWAs [102] to [105] and [112] and notwithstanding the failure to satisfy the ‘no disadvantage test’ sought and obtained AIRC approval of the AWAs arguing strongly for the economic need for the AWA conditions and that without the benefits conferred on the employers by the AWAs, the enterprise could not re‑open [119]. Similar concerns were put by Mr Ramsey in discussing the dissatisfaction with the conditions identified by some of the employees in contention here [164] and [165] and a bonus system was proposed and implemented [171] and [172] on terms that failed, in its practical application, on the evidence of Mr Delaforce, to yield bonuses. A return to award conditions was perceived by Mr Ramsey to be economically unacceptable. At [269], the immediacy of the notification of a stock shortage [21 August 2002] and the AIRC order terminating the AWAs [19 August 2002] is identified together with subsequent events. Plainly, any stock shortage did not cause the abattoir to close in an enduring way because the abattoir re‑opened, re‑employed a cohort of employees and commenced operations almost immediately. Equally clearly, the economic consequences of a workplace without the employers preferred conditions, the subject of concern from the outset, was unacceptable.

323 An inference is open that Mr Ramsey took steps in response to the order of the AIRC effecting a termination of the AWAs to deal with the consequence of that order. Those steps did not involve abandoning processing operations and closing down the abattoir because it was sub‑economic but involved steps to place the operations on the footing of a particular cohort of employees on particular preferred terms and conditions and one method was to invoke the stock shortage provisions, close the abattoir, terminate the contracts without severance, re‑open, re‑employ and re‑commence operations in a new environment. The evidence of the centrality attached by Mr Ramsey to the preferred conditions and the conjunction of events do suggest as a matter of common experience that the steps taken by Mr Ramsey were designed to effect a reduction in the complement of workers and establish conditions on a footing more acceptable to him. The dismissal of all employees remains, nevertheless, a dismissal of each individual employee and the refusal to re‑employ the former employees in contention here can fairly be seen, as a matter of inference, as part of a mechanism for effecting an enduring, final and operative dismissal for a reason related to historical dissatisfaction with conditions and Union agitation for perceived better conditions.

THE CONSIDERATION OF THE PROVISIONS

324 Part XA of the Act has the objects (in addition to s 3 objects) relevantly, of ensuring that employers and employees are free to join industrial associations of their choice (or not join) and ensuring that employers and employees are not discriminated against or victimised because they are, or are not, members or officers of industrial associations (s 298A). The respondents say these notions of discrimination and victimisation are central to the operation of Pt XA and further, the proper construction of the provisions of Div 2 of the Part has the effect of introducing an additional qualification upon that which must be established in order to demonstrate conduct in contravention of Div 3 and particularly s 298K of Div 3.

325 The argument is this. Section 298C applies Pt XA ‘only to the extent provided for by Division 2’. Section 298F(1) says Pt XA applies to conduct:

‘carried out with a purpose or intent relating to a person’s participation or non-participation (in any capacity) in:

(a) any proceedings under this Act; or

(b) any other activity for which the Act provides.’

326 Section 298F(2) applies Pt XA to conduct carried out with a purpose or intent relating to:

‘(a) the fact that an award, a certified agreement or an AWA applies to a person’s employment; or

327 The combined effect of these provisions is to introduce an additional element of discrimination into the conduct prohibited by s 298K so that it is not enough to establish, for example, the dismissal (conduct) of an employee for a prohibited reason to satisfy s 298K(1)(a). Rather the section, it is said, requires proof of the discriminatory dismissal of an employee for a prohibited reason. The essential difficulty with this construct is the failure to recognise that the legislative expression of the objectives of the Part is to be found in prohibiting nominated conduct by an employer carried out for a reason falling within s 298L(1). That is the formulation that captures prohibitions upon discriminatory conduct or victimisation. It is the conjunction of the conduct carried out for a prohibited reason (among others) that gives the s 298K conduct its discriminatory character. No other element need be superimposed upon the sections. That, however, is not to deny the relationship between the objects recited in s 298A and the language of implementation in s 298K and s 298L. Those sections might generally be described in terms of prohibiting the vice of discrimination and victimisation but the precise formulation of the method of implementation is to be found in ‘conduct’ for ‘a prohibited reason’. The true role of Division 2 is not to impose a limitation upon the plain words of other provisions of the Act but to plot a point on the constitutional continuum of ensuring the Act in all its provisions is a valid law of the Commonwealth. See generally Greater Dandenong City Council v Australian Municipal, Administrative, Clerical and Services Union [2001] 112 FCR 232 per Wilcox J at [57], [70] and [73].

328 The respondents say that this notion of threshold discrimination has particular resonance in the application of s 298V also within Pt XA with the result that before s 298V can have any operation, the applicant must adduce evidence that demonstrates a reasonable hypothesis that conduct occurred for a prohibited reason and that such evidence was unchallenged or unaddressed. It will be recalled that s 298V casts an onus upon the respondents in these circumstances:

‘S298V if:

(a) in an application number this Div relating to a person’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 … 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 that intent, unless the person … proves otherwise.’

329 The conventional approach to this section is explained by Wilcox and Cooper JJ in David’s Distribution Pty Ltd v National Union of Workers (1999) 91 FCR 463 at [109], in these terms:

‘Section 298L(1)(l) requires that the applicant prove the employee was dismissed from his or her employment. It also requires it to be proved that the employee was at the time of the dismissal dissatisfied with his or her industrial conditions and was a member of an industrial association that was seeking better industrial conditions. In order to make the link between the dismissal and the circumstances which the applicant must establish to bring the dismissal within s 298K, the Act provides in s 298V a statutory presumption that the link exists in certain circumstances. Under s 298V in proceedings under Div 6 of Pt XA of the Act for a contravention of a section in Pt XA, an allegation in those proceedings of conduct for a prohibited reason is sufficient for it to be presumed that the conduct was engaged for that reason unless the employer proves to the contrary. Section 298V does not relieve the applicant in proceedings under Div 6 of Pt XA of the Act from proving, on the balance of probabilities, each of the ingredients of the contravention. It enables the allegation to stand as sufficient proof of the fact unless the employer proves otherwise: R v Hush; Ex parte Devanny (1932) 48 CLR 487 at 507’

330 The reference to R v Hush; Ex parte Devanny reflects reliance upon the observations of Sir Owen Dixon in considering in the context of a prosecution for an offence against the Crimes Act 1914-1932 (Cth), the proper role of a provision that rendered the averments of the prosecution prima facie evidence of the matter averred. Apart from the criminal character of that conduct, the section did not place an onus upon the accused to disprove the allegation. His Honour observed that ‘while leaving the prosecutor the onus, initial and final, of establishing the ingredients of the offence beyond reasonable doubt, [the section] provides, in effect, that the allegations of the prosecutor shall be sufficient in law to “discharge” that onus.’

331 Branson J put the matter in these terms in Employment Advocate v Barclay Mowlem Construction Ltd (2005) 139 IR 19 at pg 31, [56]-[57]:

‘I gave consideration to the significance of s 298V of the Act in Maritime Union of Australia v CSL Australia Pty Ltd (2002) 113 IR 326 at [56]-[61]. In that case [at 59] I noted that s 298V reversed the onus of proof not only with respect to the dominant reason for the relevant conduct but with respect to all operative reasons for that conduct.’

332 In considering s 170CQ of the Act which provided a defence in relevant proceedings, if an employer proved that the termination of employment was for a reason or reasons that did not include a prescribed reason, Moore J in Laz v Downer Group Ltd (2000) FCA 1390 at [26], concluded that s 170CQ enables ‘the allegation that a reason was a proscribed reason to stand as sufficient proof of the fact unless the employer proves otherwise’, relying upon David’s Distribution and R v Hush. In National Union of Workers v Qenos Pty Ltd (2001) 108 FCR 90, Weinberg J at [50] observed: ‘By virtue of the operation of s 298V, it is presumed in proceedings brought under s 298K, that the conduct was, or is being, carried out for a prohibited reason unless the respondent proves otherwise’. See also Wilcox J, Greater Dandenong City Council v Australian Municipal, Administrative and Clerical Services Union (supra) at [122] and Patrick Stevedores Operations No. 2 Proprietary Limited & Ors v Maritime Union of Australia & Ors (1998 – 1999) 195 CLR 1 per Gaudron J at [123]. Finally, in Heidt v Chrysler Australia Ltd (1976) 26 FLR 257 at 267, Northrop J considered the operation of s 5(4) of the Conciliation and Arbitration Act 1904-1975 (Cth) which provided that in any proceeding for an offence against the section, if all the facts and circumstances constituting the offence, other than the reason for the defendant’s action, are proved, it shall lie upon the defendant to prove that he was not actuated by the reason alleged in the charge and observed:

‘The circumstances by reason of which an employer may take action against an employee are, of necessity, peculiarly within the knowledge of the employer. It is for this reason that s 5(4) is of such importance – it has the effect of shifting the onus of proof to the employer with the result that the employer is obliged to prove a negative if he is to avoid being found guilty of the offence charged if all the other facts and circumstances constituting the offence are proved. The onus so cast upon the employer is to prove a negative on a preponderance of probabilities’.

333 The applicant relies upon the language of the explanatory memorandum for the Act tabled in the House of Representatives which provides by par 16.40 in these terms:

‘The consequence of s 298V is that, once a complainant has alleged that the conduct carried out, or threatened to be carried out, in relation to him or her is motivated by a reason or intent that would contravene the relevant provision(s) in Part XA, the person or industrial association will have to establish, on the balance of probabilities, that the conduct was not carried out for the unlawful reason or intent. This reflects the existing provisions in the equivalent offence provisions of the IR Act which are to be repealed and replaced by Part XA. They are included because of the difficulty for an applicant establishing the prohibited motive in these kinds of cases.’

334 The point of distinction the respondents seek to demonstrate is this. The majority judgment in David’s Distribution v NUW properly understood, is not authority for the proposition that a bare allegation of a prohibited reason in respect of proven or admitted conduct, for example, termination of employment, is sufficient to cast an onus of “proving otherwise” upon the respondents. The reasons [95] to [114] demonstrate, it is said, that evidence was available by reason of inferences that the dismissed picketers were actuated by dissatisfaction with their industrial conditions, that the employees banded together in part for that reason and that a statement by a David’s Distribution management officer (Mr Johnson) provided evidence of at least a serious question to be tried of a reason for dismissals which was a prohibited reason. The evidence of a prohibited reason concerning Mr Johnson was not denied by him. David’s further contended that the termination of employment affected all the picketers equally, no individual was selected and the only inference open was that termination was referrable to picketing conduct. David’s contended that because the evidence was consistent with non-prohibited reasons, the mere allegation of a prohibited reason cannot operate to place an onus upon the respondents. Their Honours, Wilcox and Cooper JJ said:

‘The difficulty with this submission is the uncontradicted evidence of Mr Joseph that, on 17 July 1998, Mr Johnson, informed him that David’s intended to terminate another ten people. … The statement of Mr Johnson was itself evidence that there was a serious question to be tried that there was a different or additional reason for the dismissals, which was a prohibited reason.’

335 Accordingly, the respondents say David’s Distribution v NUW is authority for the proposition that where evidence exists of a basis for a reasonable hypothesis of prohibited conduct, an onus, in those circumstances, falls upon the respondent to prove that the alleged prohibited reason was not in fact a reason.

336 Notwithstanding the inferences drawn from the evidence concerning the picketers and the failure to answer evidence against Mr Johnson, the statement of principle at [109] seems to have been put by their Honours as a matter of broad principle, namely, it (s 298V) ‘enables the allegation to stand as sufficient proof of the fact unless the employer proves otherwise’. In the context of the specific question of ‘interlocutory relief’, their Honours said at [113]:

‘Section 298V of the Act, having regard to the allegations in the proceedings and the state of the evidence, provides sufficient proof of a prohibited reason for the purpose of interlocutory relief. The evidence relied upon by David’s was not of sufficient weight to deprive the NUW of the benefit of the presumption in the proceedings before North J.’

337 In any event, in this case, there is a long history of engagement between the employees in contention here and Mr Ramsey concerning their dissatisfaction with working conditions, the operation of the AWAs, the intervention of the AMIEU in a process of agitation to secure a set of conditions perceived to be more favourable and a pattern of discontent with or hostility towards the union. Mr Ramsey has chosen not to give any evidence on any of these matters or to answer directly, from his own knowledge, the allegations of prohibited reasons for the identified conduct. To the extent that the section operates upon some evidence of a reasonable hypothesis, inferences are open unrebutted of an hypothesis consistent with the allegations made by the applicant.

338 There is no doubt the applicant has the onus of establishing the causes of action on the balance of probabilities but s 298V effects a discharge of that onus once the relevant conduct is proven and the allegation of a prohibited reason made. Although the respondents rely upon observations of Ryan J in Transport Workers’ Union v De Vito (2002) 140 IR 33 at 40, his Honour was simply observing that when the conduct itself is put in issue, the applicant has an evidentiary onus of establishing that matter before the respondent is called upon to satisfy an onus of proving a reason other than the alleged prohibited reason. The two classes of conduct asserted here are ‘dismissing an employee’ and ‘refusing to employ another person’. It may be that the content of other classes of conduct, ‘altering the position of an employee to the employee’s prejudice’ or ‘discriminating against another person in the terms or conditions of an offer of employment’, require greater forensic evidence of the character of the conduct before an onus as to a prohibited reason falls to the respondent. In any event, that is not the case here.

339 The respondents rely upon the observations of both Barwick CJ (in dissent) and Mason J (in the majority) in General Motors Holden Pty Ltd v Bowling (1976) 12 ALR 605. In that case, GMH dismissed an employee who was a member and delegate of the relevant union, on the articulated basis of the employee’s unsatisfactory attitude to work and supervision. Section 5(1) of the Conciliation and Arbitration Act 1904-1976 (Cth) prohibited GMH from dismissing Bowling by reason of his being a member or delegate of the union. The majority of the industrial court convicted GMH of dismissing Bowling by reason of his position as a delegate. In considering the onus provision in GMH’s appeal, Barwick CJ at 611 said this:

‘I now turn to s 5(4) and the use which may properly be made of it. The precise terms of that subsection are:-

“s.5(4) In any proceeding for an offence against this section, if all the facts and circumstances constituting the offence, other than the reason for the defendant’s action are proved, it shall lie upon the defendant to prove he was not actuated by the reason alleged in the charge.”

It is a little difficult to state what are the element of the offence against s 5(1)(a) other than the reasons for the appellant’s action: but, presumably, if effect is to be given to the provision, the dismissal itself is the other, and indeed the only other, element of the offence.

In my opinion, before resort can be had to this onus provision, there must be before the court evidence which reasonably warrants the conclusion that the circumstance that the employee had been placed in the appropriate office of his union was possibly a reason for his dismissal. If, on the evidence, there is no basis for concluding that that circumstance might be or have been a reason for the dismissal, there is no room for requiring the employer to negative the proposition that that circumstance was such a reason.’

340 Accordingly, the respondents here say that there must first be some evidence that the reason alleged was ‘possibly a reason’ and if there is ‘no basis’ for concluding that the particular circumstance might have been a reason, the onus of demonstrating otherwise does not arise. Two things should be noted. First, this is nevertheless a slight basis for enlivening the operation of the respondents’ onus and, secondly, the reason in question had to be a ‘substantial and operative reason’. A requirement to demonstrate some evidence of such a circumstance before enlivening the respondents’ onus is neither surprising in the context of a requirement to demonstrate a substantial and operative reason nor applicable to a position where the question is whether the prohibited reason was simply a reason for the conduct.

341 Mason J put the matter this way at pg 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.’

342 Therefore, it is said, consistent with the views of Barwick CJ and Mason J, the applicant must adduce evidence ‘consistent with the hypothesis’ that the respondents were actuated by a prohibited reason. It seems to me that the hypothesis is the allegation and the evidence is consistent with it. However, his Honour, Mason J, also said at pg 617:

‘To hold that, despite the subsection, there is some requirement that the prosecutor brings evidence of this fact is to make an implication which, in my view, is unwarranted and which is at variance with the main purpose of the provision in throwing on to the defendant the onus of proving that which lies peculiarly within his own knowledge.’

343 The notion that evidence must be consistent with a hypothesis and the recognition that the statutory objective is to place the onus on the defendant in respect of those matters peculiarly within his own knowledge, seems to me to not require actual evidence of purpose on the part of the applicant.

344 It should also be remembered that s 298K(1) has effected a change in the law put this way by Nicolson J in Maritime Union of Australia v Geraldton Port Authority (1999) 93 FCR 34 at 69: ‘In my view the words “or for reasons that include a prohibited reason” in s 298K(1) effect a change in the law and permit a reason to be an operative reason provided it is one of the reasons for the conduct. It would not therefore have to be the “substantial” reason. It would have, of course, to be “operative” – that is it would have to be a reason’. That passagehas been approved by Goldberg J in Australian Workers’ Union v John Holland Pty Ltd (2000) 103 IR 205 and Weinberg J in NUW v Qenos (supra) at [57] and [58].

345 Reliance is also placed on the judgment of the Full Court of the Federal Court in BHP Iron-Ore Pty Ltd v Australian Workers’ Union & Ors (2000) 102 FCR 97. In so doing, the respondents press their contention that some element of discriminatory conduct must be demonstrated (as an additional element of the section), not merely conduct coupled with an allegation of a prohibited reason, there must be some evidence consistent with the discriminatory hypothesis and the conduct must be intentional conduct directed to ‘an employee’ or ‘other person’.

346 At pg 108, their Honours Black CJ, Beaumont and Ryan JJ made this observation:

‘It has to be borne in mind, in construing s 298K, that it proscribes conduct by “an employer” directed to “an employee” or “other person”. That use of the singular suggests that the alleged injury or alteration of position has to be examined in the light of the circumstances of each individual employee. (It is not the point that in the interpretation of statutes, the singular ordinarily includes the plural; here we are concerned with the indications of legislative intention to be discerned from the actual language used). It is also significant that the conduct struck at by each paragraph of s 298K is expressed by an active verb: “dismiss”, “injure”, “alter the position”, “refuse to employ” and “discriminate”. That implies that the proscription is essentially against an intentional act of the employer directed to an individual employee or prospective employee.’

347 There must be, therefore, it is said, some demonstrated element of ‘singling out’ of an employee or if a class of employees is involved, the class must be singled out for special treatment as a class: Health Services Union of Australia v Tasmania (1996) 73 IR 140, per Marshall J; and Maritime Union of Australia v Geraldton Port Authority (supra). In Health Services, the actual conduct of singling out a union member for denial of a wage increase was held to constitute an ‘injury’ for the purposes of s 298K(1)(b) and in MUA v Geraldton Port Authority, an offer made to all employees in the relevant class of a redundancy package did not constitute an injury or a threat to injure an employee for the purposes of s 298K(1)(b) but simply an offer open to acceptance or rejection.

348 There can be no doubt that s 298K(1) addresses, consistent with the Full Court’s observations in BHP Iron-Ore Pty Ltd v Australian Workers’ Union & Ors (supra), bilateral conduct between an employer and an employee or an employer and another person. That simply means however that the circumstances of the conduct (dismissal, injury, alternation of position, refusal to employ or discrimination in terms and conditions of that offer of employment), affecting each individual must be examined to determine whether the conduct was undertaken for a prohibited reason. If the expression of the conduct involves a group of affected individuals, the circumstances of each individual within the group must be examined. The broader the group, the less likely as a matter of logic and probability that individuals within it are the subject of prohibited reasons for the conduct. A group of individuals will generally exhibit a unifying characteristic that defines the boundaries of the group and it may well be that that characteristic provides an explanation of the reason for the conduct affecting the group. Nevertheless, individuals within the group, upon examination, may on a bilateral basis, be the subject of conduct for a reason prohibited by the Act, as alleged. In other words, the dismissal of 50 employees would not provide an answer to a contravention of s 298K(1)(a) if 12 of those 50 were dismissed because they elected to take up membership of a union, act as a delegate, express dissatisfaction with conditions of employment supported by the union, or secured an order of the AIRC to address constructive dismissal in harsh and unjust circumstances. The question is always what was the conduct of the employer qua the employee, in the circumstances? In many cases, where a broader group or class is the subject of the conduct, the employer will be in a position, and uniquely so, to demonstrate persuasively that the circumstances affecting the group reflect a level of abstraction that removes qua any member, a circumstance constituting a prohibited reason. Although the section requires an analysis of the bilateral circumstances between the employer and the individual, conduct applying to a group does not, by that circumstance alone, extinguish any operation for the section. Justice Kenny put the notion slightly differently but to the same effect when her Honour said in Australian Workers’ Union and Others v BHP Iron-Ore Pty Ltd [2001] FCA 3 at [53] upon remitter from the Full Court:

‘Section 298K(1) is, upon this view, concerned with the conduct of an employer that is directed to an individual employee. This does not mean that in dismissing one employee who is a union member for a prohibited reason, an employer commits a civil wrong, and that wrong is not committed if, for the same reason, the employer dismisses all employees who are union members. The Full Court was directing its attention to the nature of the injury contemplated by the provision. That is, the conduct in question must injure an employee individually in the sense that it would have injured him or her, regardless of whether it was actually done to an individual employee or a group of employees. The relevant inquiry is whether an employer has, by the employers conduct, injured the position of an employee individually. The Full Court must have intended to exclude conduct that injured individuals only when directed to a class of employees. Before s 298K(1) can apply, it must be possible to say of an employee that he or she is, individually speaking, in a worse situation after the employer’s acts than before them; that the deterioration has been caused by those acts; and that the acts were intentional in the sense that the employer intended the deterioration to occur.’ (emphasis added)

349 In AWU v BHP (supra), the contention was that the position of the relevant employees had been altered to their prejudice. As in the case of an injury to an employee in his or her employment, an assessment of the threshold conduct calls for a comparison between the position of the employee in the circumstances prevailing before the acts of intervention by the employer and the position subsisting after those acts to determine the nature of the injury or the prejudicial alteration. If those acts occurred for a prohibited reason, a contravention of s 298K(1) arises. The conduct of dismissing an employee or refusing to employ another person does not call for such a detailed comparative forensic inquiry before conduct falling within s 298K(1) arises. In this case, the contention is that a number of individuals were placed in a worse position by reason of the intentional acts of the employer than before those acts occurred. Some individuals within the cohort of employees dismissed by the employer may not have been placed in a worse position by reason of their re-engagement quite quickly after the dismissal conduct. Others contend they were dismissed for a prohibited reason which endured into the conduct of a refusal to employ and the prejudicial deterioration of the position of each individual, examined separately, is caused by those acts.

350 Mr Hatcher contends that all employees at the abattoir were ‘indiscriminately terminated’. In a sense, that submission swears the issue because the character of the discrimination lies in the question of whether dismissal occurred for the prohibited reason. No attempt has been made by Mr Ramsey or the respondents to adduce evidence demonstrating that the alleged reason was not the reason. The respondents rely upon the cross-examination of Mr Davis and the affidavit of Mr Brown to demonstrate that re-engagement was occurring almost immediately after the dismissals, that individuals received phone calls, some were available for work, others not and that no differentiation occurred between individuals offered employment. The evidence, does not establish those matters. That evidence could have come from Mr Ramsey but he chose not to adduce it.

351 The respondents further rely upon Heidt v Chrysler Australia (supra) and National Union of Workers of Qenos Pty Ltd (supra) as authority for the proposition that there must be demonstrated “differential treatment” by an employer as against an individual employee or other person or an identified class of persons as against others. The decision in Heidt v Chrysler (supra) concerned a challenge to the dismissal of an employee on grounds that the dismissal was actuated by reason of the employee’s membership of the Union, his entitlement to an award and his membership of a Union that was seeking better conditions about which he was dissatisfied. The respondents rely upon this passage from the judgment of Northrop J at page 270:

‘Counsel for the informant did not argue that the defendant had failed to prove that, in dismissing the informant, it had not been actuated by reason of either of the circumstances that the informant was a member of an organisation or was entitled to the benefit of an award. To so argue would have been futile. It was a condition of his employment by the defendant that the informant become and remain a member of the organisation. The award was binding on the defendant with respect to all employees coming within the scope of the award, whether members of the organisation or not. I find that the defendant, in dismissing the informant, was not actuated by reason of the circumstance that the informant was a member of an organisation, nor by reason of the circumstance that the informant was entitled to the benefit of an ward.’

352 This passage is said to reflect the criticality of differential treatment. The passage, however, simply recognises that since all employees were required to be a member of the Union, there was no point in the respondent seeking to exclude Union membership. In NUW v Qenos, Weinberg J considered a proposal by an employer to undertake a “spill and fill” process to select those operators at particular manufacturing plants for retrenchment and whether adoption of a process of including all of Plant A’s employees in the pool of retrenchment candidates involved a threat of dismissal, injury to employees in their employment or an alteration of their position to their prejudice. The respondents rely upon these passages of his Honour’s judgment at [118] and [120]:

‘I consider that the applicant’s claim that the respondent has contravened s 298K is largely misconceived. In BHP Iron-Ore Pty Ltd v Australian Workers’ Union the Full Court determined that the reach of s 298K is limited in that it proscribes conduct which is directed to an individual employee or prospective employee, and not conduct directed to a broad class of employees. That decision is binding upon me.

In the same way, I am not persuaded that conduct of this nature is capable of giving rise to an injury to any particular employee in his or her employment, or there can be said prejudicially to have altered the position of any individual employee.’

353 Those observations seem to me to represent a different application of BHP v AWU (supra) to that identified by Kenny J in the sense that although both Weinberg J and Kenny J recognise the bilateral focus of the provisions, the expression of proscribed conduct directed to an employee may nevertheless be found in conduct directed to a group of employees “in the sense that it would have injured him or her regardless of whether it was actually done to an individual employee or a group of employees”: Kenny J at [53].

354 Weinberg J recognises at [121] and [122] the susceptibility of what I might call distributed conduct (and not merely bilateral conduct) to the reach of s 298K, illustrated in the circumstances of Patrick Stevedores Operations No. 2 Pty Ltd v Maritime Union of Australia (supra). His Honour said this:

‘There, the conduct impugned was a decision by the employers to dismiss all members of the MUA in their employ, and to ensure that no funds were available to meet the legal obligations owed to those employees.

It is one thing for an employer to decide to dismiss all the employees forthwith because of their membership of a particular union. That conduct falls squarely within s 298K. It is conduct which is directed to individual employees in the sense spoken of by the Full Court in BHP Iron-ore Pty Ltd v Australian Workers’ Union, albeit all individual employees.’

355 His Honour concluded that the “spill and fill” proposal for the selection of certain employees within a group for involuntary redundancy was not “sufficiently proximate” to any of the forms of contravening conduct contained within s 298K. Dismissal of all employees for a prohibited reason is squarely within s 298K notwithstanding that they represent potentially a large group. Dismissal of employees for a prohibited reason within a group of employees some of whom may be dismissed for a non-prohibited reason does not remove the individual or bilateral character of the prejudicial conduct on the part of the employer as against that employee. It would be an odd thing if the statutory quality of contravening conduct in respect of some employees could be dissolved amongst a group and remedial entitlements otherwise available to the affected individuals thereby lost. The question is whether the conduct, from the standpoint of the individual, notwithstanding others, represents conduct carried out for a prohibited purpose. It seems to me that the observations of Gray J in Employment Advocate v Williamson (2001) 111 FCR 1 at [23]:

‘What is clear, however, is that for a contravention of s 298K to occur, there must be a person or persons who fall within the description in one or more of the prohibitive reasons.’

and at [26]:

‘It must be possible to identify some person or persons who answer the description in at least one of the prohibitive reasons in s 298L(1).’

does not contradict the notion that an individual may fall within the description of the conduct even though such an individual forms part of a group such as that identified in the illustration by Weinberg J.

356 In this case, the employer entities dismissed a cohort of employees. Some of those employees, from their individual standpoint, contend the dismissal was for a prohibited reason. They say the circumstances that give rise to that apprehension can be seen in the attitude of Mr Ramsey to the AMIEU, his hostility to the participation of the Union in the workplace and the consequences of Union engagement in various processes before the AIRC and the dissatisfaction nine of the 12 individuals were articulating about conditions of employment against the background of the steps taken by the Union. As to three of the individuals, their concern lies in the chronology of events arising out of their constructive dismissal and the subsequent treatment of the individuals consequent upon obtaining orders from the AIRC and particularly orders for reinstatement.

357 The dismissal of the entire cohort of employees does not provide an answer to the essential character of the contravening conduct in respect of the particular individuals. The legislation provides a mechanism for an employer to demonstrate that the apprehended and thus alleged reasons for the dismissal are misplaced and incorrect by casting an onus upon the respondent to demonstrate otherwise.

358 The same position obtains in relation to the conduct of refusing to employ the relevant individuals. In essence, the respondents say that in the case of each individual, the particular person was not available for employment, did not seek employment and was not denied employment. Moreover, before a refusal to employ an individual for a prohibited reason can arise, the individual must demonstrate that a vacancy was available to be filled.

359 As to these matters, it is clear that the individuals did seek employment. Enquiries were made of management staff as to the availability of the work. Steps were taken to refuse immediate employment by some, but expressly for the purposes of trying to secure a return to work for all employees. Mr Delaforce and Mr Moss formulated a compromise proposal directed to securing the return to work for all employees. Some individuals were episodically offered employment on a day, sometimes after the event. Enquiries were made of management and in the immediacy of the dispute and enquiries were made at the gate as to those persons who were on the list for employment. The evidence demonstrates that jobs were available and vacancies were being filled. Subsequent offers, even though episodic, demonstrate that vacancies were there to be filled. Notwithstanding the lengthy period of employment on the part of the 12 individuals with the South Grafton Abattoir from the commencement of operations by Mr Ramsey and the pre‑existing historical connection with the abattoir in the Gilbertson’s days, none of these individuals (leaving aside Susan Young) were offered full time employment or any sustained period of casual employment.

360 The historical factors which give rise to inferences that the alleged prohibited reasons were a reason for the conduct also give rise to inferences that those reasons were a reason for the refusal to employ the particular individuals. The proximity of the timing and evolution of the events are sufficiently related that there is a necessary inter‑connection between the two.

361 On this issue, the respondents say this. In Fraser v Fletcher Construction Australia Ltd (1996) 70 IR 117, Moore J, sitting in the Industrial Relations Court of Australia, said:

‘… the expression “refuse to employ” deals with … actual employment where there is a refusal to employ a person in circumstances where, apart from the refusal, employment might or would arise. It concerns actual and not theoretical employment’.

362 In Construction, Forestry, Mining and Energy Union v BHP Steel (AIS) Pty Ltd [2000] FCA 1008, Wilcox J observed at [50] that:

‘A refusal to employ somebody involves discrimination or victimisation only if there was, at the relevant time, a vacancy or prospective vacancy.”

363 The respondents say that the applicant has not demonstrated that a vacancy existed or might arise. Moreover, there is no evidence that actual employment might otherwise arise but for the alleged refusal. The allegation of refused employment is thus entirely theoretical.

364 Apart from these authorities, the notion of a refusal to employ a person has been the subject of discussion in Maritime Union of Australia v Burnie Port Corp. Pty Ltd (2000) 101 IR 435, per Ryan J; Australasian Meat Industry Employees’ Union v Belandra Pty Ltd (2003) 126 IR 165 per North J and Employment Advocate v Barclay Mowlem Construction Ltd (2005) 139 IR 19. Although the decision of his Honour in Maritime Union of Australia v Burnie Port Corp. Pty Ltd was the subject of an appeal to the Full Court (Burnie Port Corp. Pty Ltd v Maritime Union of Australia (2000) 104 FCR 440), the approach adopted by Ryan J was not attended by error in any respect, on the issue of ‘refusal to employ’. Her Honour, Branson J, in Employment Advocate v Barclay Mowlem Construction Ltd found the reasons of Ryan J in the Full Court persuasive and they were these. There is no relevant distinction between refusing to employ an individual and an election by an employer to appoint other individuals to the position. A decision to employ someone else is necessarily a decision not to employ another. That reasoning was adopted by Branson J in finding that a respondent had refused to engage an independent contractor by deciding to award the contract to another party.

365 In the present case, the succession of offers of re‑employment to individuals after the dismissal of the cohort of employees, necessarily involved a refusal to employ other individuals who were, on the evidence, seeking employment and re‑engagement. The evidence of Mr Forrest demonstrates that by 20 September 2002 there were at least 80 to 90 workers employed at the abattoir. Plainly enough, vacancies existed and were being filled. In AMIEU v Belandra, North J took the view that the statutory context in which s 298K(1)(d) appears suggests that a refusal to employ arises even though there may be no available vacancy. That result arises, in his Honour’s view, because, the legislation deals with the issues of “conduct” and the “reasons” separately. Further, that dichotomy is carried into the operation of s 298V. His Honour considered that the Parliament has expressed its view about the proper balance between parties in controversy on these issues so far as the discharge of the obligations of proof are concerned. As a result, even though it may seem anomalous that an obligation might fall to a respondent to demonstrate that no prohibited reason operated even though a vacancy did not exist, once an applicant proves the conduct of refusal, an ‘onus then shifts to the respondent to disprove the prohibited reason alleged. At this point, the absence of a vacancy may provide an innocent explanation for the conduct. Depending on the circumstances giving rise to the absence of a vacancy, the lack of an available position may show that the reason for the refusal was not a prohibited reason’ [51].

366 The respondents criticise the decision in AMIEU and Belandra on the basis that the evidentiary problem discussed by his Honour does not arise in the context of a lack of a vacancy because the applicant can readily show, by evidence, if there is a vacancy. The evidence would demonstrate that someone else was employed or there was an advertisement placed in a newspaper or other forum for a vacancy. Mr Hatcher puts it this way: ‘It’s not as if one needs to get inside the mind of the person making the decision to know what personally moved him, as it is when one alleges a prescribed reason’. The contention is that the applicant must adduce evidence of an actual, not theoretical, vacancy and demonstrate a refusal to employ that individual for that vacancy. Once that level of precision is made out, s 298V operates. In the absence of that evidence, s 298V has no role to play.

367 It seems to me, in having regard to the threshold conduct of a refusal to employ another person, required to be established by the applicant before s 298V has any operation, the phrase logically contemplates the existence of a position to be filled or a position in prospect within the boundaries of reasonable temporal limitations. Evidence may demonstrate such a position or demonstrate in respect of a particular industry, a systemic process of casual employment or a recurrent demand within a particular industry for full time employees. It seems to me the applicant would need to adduce some evidence of a vacancy or prospective vacancy and not simply a theoretical possibility of a position. In the context of this case, the approach adopted by North J does not need to be considered further because the evidence demonstrates that a process of re‑engagement was taking place, vacancies existed and were being filled. Vacancies continued to become available and, in some cases, resulted in offers, although limited, being made to some of the individuals in contention here. The circumstances of the efforts made by the individuals and their evidence of vacancies being filled is clear [306]. Accordingly, s 298V operates and it has not been discharged. By paragraph 20 of the Further Amended Defence (Document 143), the First, Second and Fourth Respondents admit that in September, October and November 2002 each of those respondents commenced re‑employing labour at the South Grafton Abattoir.

368 Although a number of propositions on the facts were put by the respondents on the question of a refusal to employ and the absence of any demonstrated differential treatment, I accept the submissions of the applicant that upon a review of the evidence, a number of these submissions are not supported by the material I cannot identify evidence to support the following propositions although, in determining the applicant’s submissions on this particular aspect of the matter, I accept entirely and unreservedly that counsel for the respondents put, in submissions, his understanding of the state of the evidence.

· All of the 30 individuals on the Union list were offered work after the resumption of employment.

· Everyone in the slaughter room was offered re‑engagement when the slaughter room commenced operations.

· Upon re‑opening of the abattoir, no new employees were engaged.

· Upon resumption upon activity upon the slaughter floor, Union members were engaged, members of the consultative committees were engaged and people who asked for their AWAs to be terminated were engaged.

· All complainants were offered re‑employment at two stages following re‑opening of the abattoir.

· Some members of the consultative committees were re‑employed.

· The bulk of the individuals who sought to cancel their AWAs went back to work.

369 Unfortunately, the respondents elected not to call evidence which might have addressed each of these topics in some real detail.

conclusions

370 The applicant contends that the evidence establishes contraventions of s 298K both independently of and having regard to s 298V. As to the state of the evidence generally, I am satisfied the evidence supports the inferences I have drawn. The evidence giving rise to those inferences and the ultimate facts in issue have not been the subject of any evidence from the respondents and in particular, from Mr Ramsey. It seems to me, consistent with the approach adopted by Sackville J in Prentice v Cummins (supra) that as a matter of principle, an election by the respondents in the circumstances of the foundation for the ‘no case’ submission provides a proper basis for drawing inferences consistent with the principles identified in Jones v Dunkel (supra), adverse to the respondents.

371 However, it is not necessary to rely on such inferences in making dispositive findings on the ultimate facts in issue. The applicant has established two classes of conduct within s 298K(1). The dismissal conduct is admitted. The refusal to employ conduct is established. Having adduced evidence probative of the conduct, the assertion of the prohibited reasons gives rise to the operation of s 298V thus enlivening the presumption which discharges the onus cast on the applicant to establish the causes of action on the balance of probabilities and casts an onus on the respondents to prove affirmatively that the prohibited reasons alleged were not a reason for the conduct.

372 This approach to the operation of s 298K and s 298L is true in respect of both classes or conduct alleged in these proceedings. As to the specific conduct of refusal to employ, the evidence must establish the matters discussed at [367]. Once those matters are established on the evidence, s 298V does its work. In this case, the evidence of those matter is clear.

373 The respondents contend that the Act as a matter of construction in the light of the authorities requires the applicant to establish facts which give rise to an hypothesis that the conduct was carried out for a prohibited reason thus revealing, at least, the ingredients of the complete causes of action before s 298V has any operation. Establishing conduct in contravention of s 298K does not require the applicant to make out an hypothecated case of a prohibited reason.

374 The Act recognises that the field of reasons motivating a decision‑maker within an employer to dismiss an employee or refuse to employ a person lies uniquely within the mind of that person and although evidence of secondary facts might give rise to inferences probative of the ultimate facts in issue concerning the reasons for conduct, the burden of proving reasons other than the allege prohibited reasons falls to the respondents. That onus has not been discharged.

375 However, even if the view put by the respondents is accepted that such an evidential burden does not arise until the applicant establishes an hypothecated case of a prohibited reason, the evidence in this case establishes at least a basis for an hypothesis that the conduct was carried out for the prohibited reasons alleged. No recourse to inferences in accordance with the principles in Jones v Dunkel (supra) is necessary to make out a basis for such an hypothesis. The tests, for example, articulated by their Honours Barwick CJ and Mason J [340] – [343] in the context of the formulation of the particular provisions in question in that case, reflect a slight threshold of evidence.

376 Accordingly, each of the respondents has failed to demonstrate the alleged prohibited reasons were not an operative reason for the dismissal conduct. The First, Second and Fourth Respondents have failed to demonstrate that the alleged prohibited reasons were not an operation reason for a refusal to employ any one of the 11 individuals in these proceedings (that is, all claimants apart from Susan Young).

377 I am satisfied that the evidence demonstrates there is no relevant differentiation between the respondents in terms of the dealings between employees and the broad operation of the South Grafton Abattoir. No doubt, particular entities associated with or related to Mr Ramsey or entities controlled by Mr Ramsey employ particular individuals and equally, there is very likely to be particular administrative or domestic arrangements between those companies in the provision or performance of services and tasks in connection with the operation of the abattoir. However, whatever the content of those internal arrangements might be, an abattoir requires individuals to perform work in order to function. Those individuals might be employed by any one of a number of companies and be supplied or deployed under contractual arrangements with other entities either related to or, in a practical sense, connected with the operator of the abattoir. For all practical purposes, the question is whether the abattoir as a functional operation, required a cohort of individuals in order to perform the various task specific functions and whether steps were put in place during the period of re‑engagement to offer employment to individuals, irrespective of the particular recruiting vehicle or entity used for that purpose. The evidence does not establish whether the Third Respondent was seeking to employ any person in the relevant period. Accordingly, the conduct of refusing to employ is confined to conduct on the part of the First, Second and Fourth Respondents.

378 I am satisfied that all four respondents have engaged in the contravention of s 298K(1) with respect to the dismissal conduct and the First, Second and Fourth Respondents have engaged in a contravention of s 298K(1) in respect of the conduct of a refusal to employ. I propose to invite the applicant to provide short minutes of order as to the declarations sought before making formal orders. As to the compensation question, that matter is discussed further below.

the compensation claim

379 The evidence of the attempts by particular individuals to seek employment at the abattoir are set out at [306]. Set out below is a schedule which identifies the steps taken by individuals to pursue alternative work in the absence of employment by the abattoir:

		Alternative Work history August 2002–December 2002
1	Stephen Bruce Blackadder	· No work at abattoir from 29.03.00 to September 2002. Still received periodic payments from the Abattoir until 08.12.02. · No alternative employment mentioned in affidavit.
2	Terrence Anthony Brooks	· Only 2 days work at the Abattoir (20.09.02 and 27.11.02). · 3 casual week’s casual butchering work in September and October 2002, most of which was for Cashels Wholesale Meats at Coffs Harbour. · Casual employment with the North Coast Mean Company (NCML) at Casino. (Has been working there since as a slicer in the boning room working the night shift and average about 24-32 hours per week).
3	Rodger Charles Campbell	· Last day at abattoir was on 02.09.02. · Offered 1 day’s work on 19.09.02, but did not work due to worker’s resolution on 16.09.02. · Offered 1 day’s work on 27.11.02, but did not work due to being in Mackay looking for work. · Unable to obtain alternative employment, despite applying for work with 2 employment agencies and several builders in the area.
4	Michael Robert McKenzie	· Worked 20.09.02. · Started to apply for some jobs in late October. Gained casual work with Caringa Enterprises Inc as a support worker for disabled people. This later became a permanent part time job.
5	Paul Francis McKenzie	· Offered work at abattoir on 18.09.02, but did not take it due to workers’ resolution. · Casual jobs moving lawns “here and there”. · Support worker for disabled people with Caringa Support Services in Grafton: Casual worker (29 October 2002-mid 2003); Permanent part time (mid 2003 onwards). · Worked at abattoir on 26.11.02.
6	Trevor Glen Moss	· Boner at the North Coast Meat Company at Casino: Casual from mid until October 2002-August 2003, at which time, he was made permanent.
7	Gregory Simon Forrest	· No alternative employment. Received Centrelink payments from September 2002-January 2003. · Offered 1 days work on 20.09.02. Went to work, but upon being told that he could only work and be paid as a labourer (cf boner), despite “Full Clearance” from Dr Michael Harding, he went home.
8	Colin James Hambly	· Dismissed on 01.07.1999. Not offered any work by the abattoir since. · Centrelink payments from late September 2002-1 July 2003.
9	Alick James Delaforce	· Worked at abattoir on 05.12.02. Did not work on 18.09.2002 due to workers’ resolution. · Some casual tiling work during the week of 19 and 20 September. · Continued to work as a farm labourer until middle of March 2003. · Was at all times willing and able to work subject to the occasions when he had to take on work following the lack of any offers from the abattoir.
10	Paul Gerard Swain	· Unemployed from “some time in” August 2002 until 10 September 2003. Received Centrelink payments. · From September 2003: weed controller.
11	John Kevin Young	· No work at abattoir. · 4 weeks commencing 16.09.02: voluntary work at Sunshine Club, an aged care program (3 days per week). · 2 weeks commencing in late October 2002: voluntary work for a fencing contractor. Eventually became a casual employee of the contractor until 30.03.03. · Since April 2003: Regular work as a fence contractor.
12	Susan Jane Young	· Casual cleaner from 15.10.02. · 29 October – early December 2002: casual cleaner at Blue Dolphin Caravan Park at Yamba. · Offered work on 29 November 2002. Did not work due to house cleaning job. · Since 31.07.03: 8-10 hours per week as a housemaid at Bent St Motel, Grafton.

380 In the formulation of the claim for compensation pursuant so s 298U(c) of the Act, the applicant has calculated economic loss on behalf of each individual on the assumption that each individual would have continued to work, in the ordinary course of events, at South Grafton Abattoir until 30 June 2003. Since the terminations of employment were effected between 10 and 13 September 2002 with individuals receiving those letters within a few days of those dates, the termination of employment in each case was in place by, in effect, the end of that week. Accordingly, approximately 11 weeks of the financial year had expired leaving 41 weeks of the financial year. The applicant has then calculated the headline earnings each employee would have received, taken into account the earnings derived in mitigation of the loss and calculated the superannuation component each employee has lost to derive the total actual loss. In addition, the applicant contends that an amount of $5,000.00 should be awarded by way of additional compensation resulting in a total claim on behalf of each individual in accordance with the following schedule.

Name	Economic Loss	Superannuation	General Damages	Total
Blackadder 41 Wks @ $498.60 ($20,442.26) Less Earnings: Centrelink $2,192.48 Clarence River JC $1,245.00 Coffs Harbour RC $1,795.00 AA Company P/L $3,563.00 Horsebreaking $1,800.00 Mustering $ 100.00 $10,695.48	$9,746.78	$877.21	$5,000.00	$15,623.99
Campbell 41 Wks @ $498.60 ($20,442.26) Less Earnings: Centrelink $ 3,060.61 Jack Wallbank P/L $12,127.00 Earnings from Abattoir $ 94.96 $15,282.57	$5,159.69	$464.37	$5,000.00	$10,624.06
Forrest 41 Wks @ $498.60 ($20,442.26) Less Earnings: Centrelink $ 2,558.26 Labourco Newcastle $ 2,390.00 Labourco U Hunter $11,369.00 $16,317.26	$4,125.00	$371.25	$5,000.00	$9,496.25
Hambly 41 Wks @ $485.60 ($19,909.96) Less Earnings: Centrelink $3,813.30	$16,096.66	$1,448.70	$5,000.00	$22,545.36
Swain 41 Wks @ $498.60 ($20,442.26) Less Earnings: Centrelink $6,221.88	$14,220.38	$1,279.83	$5,000.00	$20,500.21
John Young 41 Wks @ $498.60 ($20,442.26) Less Earnings: Centrelink $ 2,831.82 Business Profit $ 7,111.00 $ 9,942.82	$10,499.44	$944.95	$5,000.00	$16,444.39
Susan Young 41 Wks @ $459.20 ($18,827.20 Less Earnings: Centrelink $ 3,579.42 Yamba Caravan Parks $ 443.00 South Grafton RSL $ 243.00 House Cleaning $ 2,062.50 Earnings from Abattoir $ 90.55 $ 6,418.47	$12,408.73	$1,116.79	$5,000.00	$18,525.52
Delaforce 41 Wks @ $498.60 ($20,442.26) Less Earnings: White & Son P/L $ 3,689.00 Benning & Sons P/L $ 8,298.00 St. Electoral Office $ 266.00 McLean Council $ 1,551.00 Grafton Ag C.H. P/L $ 6,317.00 Abattoir Earnings $ 111.53 $ 20,232.53	$209.73	$18.88	$5,000.00	$5,228.61
Paul McKenzie 41 Wks @ $498.60 ($20,442.26) Less Earnings: Caringa Enterprises $ 16,919.00 Abattoir Earnings $ 72.17 $ 16,991.17	$3,451.09	$310.60	$5,000.00	$8,761.69
Terry Brooks	Nil	Nil	$5,000.00	$5,000.00
Trevor Moss	Nil	Nil	$5,000.00	$5,000.00

Name

Economic Loss

Superannuation

General Damages

Total

Blackadder

41 Wks @ $498.60 ($20,442.26)

Less Earnings:

Centrelink $2,192.48

Clarence River JC $1,245.00

Coffs Harbour RC $1,795.00

AA Company P/L $3,563.00

Horsebreaking $1,800.00

Mustering $ 100.00

$10,695.48

$9,746.78

$877.21

$5,000.00

$15,623.99

Campbell

41 Wks @ $498.60 ($20,442.26)

Less Earnings:

Centrelink $ 3,060.61

Jack Wallbank P/L $12,127.00

Earnings from Abattoir $ 94.96

$15,282.57

$5,159.69

$464.37

$5,000.00

$10,624.06

Forrest

41 Wks @ $498.60 ($20,442.26)

Less Earnings:

Centrelink $ 2,558.26

Labourco Newcastle $ 2,390.00

Labourco U Hunter $11,369.00

$16,317.26

$4,125.00

$371.25

$5,000.00

$9,496.25

Hambly

41 Wks @ $485.60 ($19,909.96)

Less Earnings:

Centrelink $3,813.30

$16,096.66

$1,448.70

$5,000.00

$22,545.36

Swain

41 Wks @ $498.60 ($20,442.26)

Less Earnings:

Centrelink $6,221.88

$14,220.38

$1,279.83

$5,000.00

$20,500.21

John Young

41 Wks @ $498.60 ($20,442.26)

Less Earnings:

Centrelink $ 2,831.82

Business Profit $ 7,111.00

$ 9,942.82

$10,499.44

$944.95

$5,000.00

$16,444.39

Susan Young

41 Wks @ $459.20 ($18,827.20

Less Earnings:

Centrelink $ 3,579.42

Yamba Caravan Parks $ 443.00

South Grafton RSL $ 243.00

House Cleaning $ 2,062.50

Earnings from Abattoir $ 90.55

$ 6,418.47

$12,408.73

$1,116.79

$5,000.00

$18,525.52

Delaforce

41 Wks @ $498.60 ($20,442.26)

Less Earnings:

White & Son P/L $ 3,689.00

Benning & Sons P/L $ 8,298.00

St. Electoral Office $ 266.00

McLean Council $ 1,551.00

Grafton Ag C.H. P/L $ 6,317.00

Abattoir Earnings $ 111.53

$ 20,232.53

$209.73

$18.88

$5,000.00

$5,228.61

Paul McKenzie

41 Wks @ $498.60 ($20,442.26)

Less Earnings:

Caringa Enterprises $ 16,919.00

Abattoir Earnings $ 72.17

$ 16,991.17

$3,451.09

$310.60

$5,000.00

$8,761.69

Terry Brooks

Nil

$5,000.00

Trevor Moss

Nil

$5,000.00

381 The evidence of each of these individuals is unchallenged. I have accepted their evidence in its entirety supported by a bundle of documents provided to me by consent so far as the calculation of lost earnings and superannuation is concerned. I propose to hear further submissions from the parties in relation to the question of the claim for general damages in each case of $5,000.00 as no submissions were addressed to me on the principles to be applied in making that assessment. Section 298U(c) confers a power in the court to make an order requiring a person to pay compensation of ‘such amount as the court thinks appropriate’. As to Mr Blackadder, he continued to receive payments until 8 December 2002 notwithstanding having received the termination letters in September 2002. I propose to hear further submissions from the parties concerning the calculation of compensation in his case.

382 In addition, I propose to hear further submissions on the question of whether a penalty ought to be imposed upon any of the respondents pursuant to s 298U(a) and if so the principles guiding the determination of such a penalty in all the circumstances and the principles guiding the circumstances in which an order ought to be made under s 356 of the Act that any penalty imposed upon the respondents be paid to the Employment Advocate.

I certify that the preceding three hundred and eighty-two (382) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Greenwood.

Associate:

Dated: 30 June 2006

Counsel for the applicant:	Mr G Martin SC with Mr S Horneman-Wren

Solicitor for the applicant:	Australian Government Solicitor

Counsel for the respondent:	Mr Hatcher SC with Mr Moore

Solicitor for the respondent:	Hannigans Lawyers

Date of Hearing:	12 October 2005 and 17 October to 26 October 2005 and 4 November 2005

Date of Judgment:	30 June 2006

APPENDIX

Unresolved Objections to Evidence

Justin Davis

1 Exhibit 1 is an affidavit sworn by Justin Davis on 20 August 2004. Justin Davis discharged the two roles described at [93] of the reasons resigning from both positions in February 2004. Relevantly for present purposes, Mr Davis was the principal Union official dealing with industrial issues concerning the South Grafton Abattoir from 1997/1998 until his resignation in February 2004.

2 By paragraph 4 of his affidavit, Mr Davis exhibits a true copy of a computer generated document he caused to be printed in September 2002 from electronic data maintained by the Federal Union of union membership details (J D‑1). Mr Davis says the individuals described in the membership list under the full name of the individuals in the present proceeding are the individuals Blackadder, Brooks, Campbell, Delaforce, Forrest, Hambly, M R McKenzie, P F McKenzie, Moss, J K Young and S J Young, in the proceeding. The Respondents say paragraph 4 is objectionable; JD‑1 speaks for itself. The Applicant correctly says paragraph 4 simply relates the names appearing in JD‑1 to the persons referred to in the F F A S C. The objection is not accepted.

3 The Respondents object to paragraphs 5 to 57 on the ground of relevance.

4 By paragraphs 5, 6, 7 and 8, Mr Davis describes his first visit (as a director of the Meat Industry Employees Superannuation Fund (“MIESF”) on 22 May 1998 to the South Grafton Abattoir during Mr Ramsey’s management, his engagement with employees on superannuation issues and the election by many employees to continue superannuation contributions to MIESF during employment at the abattoir under Mr Ramsey. Mr Davis describes his offer at that time to employees (and his invitation to sign an appointment document) on behalf of the AMIEU to act as a bargaining agent for abattoir employees in connection with Australian Workplace Agreements for the purposes of s.170VK of the Act. Mr Davis exhibits a document (JD‑2) by which 96 employees purport to appoint the AMIEU as a bargaining agent for that purpose including Moss, J K Young, S J Young, P F McKenzie, M R McKenzie, Hambly, Brooks, Forrest and Campbell.

5 Mr Davis says he was present on 17 and 18 September 1998 when the AIRC conducted an important approval hearing into proposed AWAs to consider, on reference from the Employment Advocate, the “no disadvantage” test for the purposes of s.170VPB(3) of the Act, represented Union member employees of the abattoir who signed JD‑2 (and purported to represent the Union), tended JD‑2, gave a copy of JD‑2 to Mr Ramsey’s representative and made submissions as to whether compared directly with the relevant award or with undertakings offered by the abattoir employment group, the proposed AWAs satisfied the “no disadvantage” test and if not, whether approval was “not contrary to the public interest” for the purposes of s.170VPG(4) of the Act. Mr Davis exhibits a copy of the AIRC decision arising out of the approval hearing (Deputy President Duncan) of 23 October 1998.

6 Questions in the present proceeding raised on the pleadings include whether the AMIEU was seeking improved conditions for its members (or potential members) at South Grafton Abattoir (at all material times), whether there is any correspondence between matters raised by any one of the consultative committees and steps taken by the AMIEU, whether Stuart Ramsey knew whether the AMIEU was agitating to secure improved conditions and whether Ramsey knew particular individuals were members of the Union, whether an individual’s membership of the Union was a reason for dismissal (and subsequent refusal to employ) in August and September 2002 or whether a member of the AMIEU was dissatisfied with his or her conditions of employment at the abattoir in circumstances where the AMIEU was seeking better industrial conditions for employees of the abattoir and whether that matter was a reason for the conduct.

7 The approval of the AWAs under Mr Ramsey’s management was said by the abattoir employer group before the AIRC (as reflected in JD‑3) to be central to economically sustaining operations at the abattoir. The Applicant says evidence of engagement by the AMIEU and its role in influencing or articulating positions on working conditions on behalf of Union member employees (and potential members) concerning the arrangements between the abattoir and its workforce, informed and influenced the disposition or state of mind of Mr Ramsey towards the AMIEU and, more particularly, towards those individuals in the proceeding who were associated with the AMIEU either by membership or by position as a delegate. In addition, the Applicant seeks to establish a relationship of influence between the members of each consultative committee of employees at the abattoir and the AMIEU which also informed and influenced the disposition or state of mind of Mr Ramsey towards the members of those committees.

8 Accordingly, the Applicant says evidence of matters described at paragraphs 4, 5, 6 and 7 are relevant and, taken in conjunction with other evidence, have probative value in establishing a tendency on the part of Mr Ramsey (and expressed as conduct on the part of the relevant employer entity) to act in a particular way or to have a particular state of mind at the moment in time when the relevant conduct occurred, namely, August and September 2002 and in the period September to December 2002. In addition, the Applicant says the history of engagement on and opposition to approval of the AWAs by officers of the AMIEU and the Union itself on behalf of Union members forms part of the narrative of events. Paragraphs 5, 6, 7 and 8 form part of the contextual narrative of events. Evidence of engagement by the AMIEU on behalf of nominated members commencing, at the threshold, with the economically important AWA approval processes and approval hearing, if accepted, is relevant to an assessment of the probability of whether Mr Ramsey knew the AMIEU and Davis had a role to play in industrial conditions at the abattoir and whether the AMIEU and Davis were seeking improved conditions for members (or potential members) at the abattoir over time leading up to and including the events in September to December 2002 and whether Mr Ramsey knew Brooks, Campbell, Forrest, M R McKenzie, P F McKenzie, J K Young and S J Young were members of the AMIEU.

9 The Applicant also supports the admissibility of paragraph 7 on the ground of “relevant tendency evidence”. Objections to a number of paragraphs in the affidavits of Brooks, Campbell, Delaforce, Evans, Forrest, Hambly, M R McKenzie, P F McKenzie and J K Young are also supported by the Applicant on the ground of relevant tendency evidence.

10 In dealing with paragraph 7, the first paragraph to raise the question, I propose to set out the principles governing my approach to determining admissibility on such a ground. Apart from the claimed objections and responsive assertions of admissibility, no specific submissions have been addressed concerning objections to or reception of tendency evidence in the proceeding.

11 The principles, however, are these.

Principles Guiding the Reception of Tendency Evidence

12 Section 56 of the Evidence Act 1995 (Cth) provides that except as otherwise provided by the Act, evidence that is relevant in a proceeding is admissible in the proceeding and evidence that is not relevant is inadmissible. Relevant evidence in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding; s 55(1); a notion that “can fairly be equated with the common law concept”: Papakosmas v R (1999) 196 CLR 297, per Gaudron and Kirby JJ at page 312, paragraph [47]; although as Sackville J observed in Jacara Pty Ltd & Ors v Perpetual Trustees WA Ltd (2000) 180 ALR 569 at paragraph [47], the Australian Law Reform Commission (“ALRC”) in its Interim Evidence Report, No. 26, noted the “minimal logical connection between the evidence and the fact in issue” required by the section.

13 Section 97 of the Evidence Act addresses the admissibility of evidence relevant to an issue in the proceeding but tendered in order to prove Mr Ramsey had a tendency to adopt a particular state of mind thereby making it more likely than not that Mr Ramsey had that state of mind when engaging in the dismissal conduct in August and September 2002 and the contended refusal to employ conduct in September to December 2002.

14 There is no sound distinction between characterising such evidence as “tendency evidence” which must satisfy the test of admissibility within the formulation of s 97 on the one hand and as “circumstantial evidence” directly probative of a fact in issue that need not satisfy s 97, on the other. Evidence of previous conduct or a previous state of mind is itself circumstantial and once tendered as probative evidence that a person had a tendency to think or act in a particular way so as to enable conclusions to be drawn on the balance of probabilities that such a person thought or acted that way on the immediately material occasions, s 97 will apply to that evidence: Jacara v Perpetual Trustees (supra) at paragraphs [56] and [57]; Hoch v R (1988) 165 CLR 292; D F Lyons Pty Ltd v Commonwealth Bank 100 ALR 468 at 474.

15 Section 97 is in these terms.

“97. The Tendency Rule

(1) Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person’s character or otherwise) to act in a particular way, or to have a particular state of mind, if:

(a) the party adducing the evidence has not given reasonable notice in writing to each other party of the party’s intention to adduce the evidence; or

(b) the Court thinks that the evidence would not, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value.”

16 No issue arises in the present proceeding as to subparagraph (a).

17 Accordingly, the evidence is to be excluded if the Court thinks the evidence would not have significant probative value on one of two grounds; either by itself or by reason of an assessment of the evidence having regard to other evidence. The weight and therefore the probative value that might be attributed to the tendency evidence might be influenced by other evidence. The “probative value” of evidence means the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue: Dictionary, Part 1, Evidence Act, which reflects the relevance test of s 55. To be admissible under s 97, the extent of the probative value must be significant.

18 Although the admissibility of evidence of tendency was thought in civil proceedings to depend simply on the relevance of the evidence to an issue in the proceeding or the extent to which evidence was logically probative of a fact in issue, s 97 rests admissibility on whether the evidence could rationally affect the assessment of the probability of the relevant fact “to a significant extent; that is, more is required than mere statutory relevance”: Zaknic Pty Ltd v Svelte Corp Pty Ltd (1995) 61 FCR 191 at 175-176 which probably means “clearly and strongly probative” of the fact in issue: Zaknic v Svelte (supra), “but something less than substantial probative value”: see ACCC v CC 165 ALR 468, Lindgren J at paragraph [91] and the cases noted by his Honour at that paragraph and also at paragraphs [92] to [95].

19 In the context of a criminal trial, in Hoch v R (supra) Mason CJ, Wilson and Gaudron JJ recognised at pages 294 and 295 that the criterion of admissibility is the strength of the probative force of the evidence and “that strength lies in the fact that the evidence reveals ‘striking similarities’, ‘unusual features’, ‘underlying unity’, ‘system’ or ‘pattern’ such that it raises, as a matter of common sense and experience, the objective improbability of some event having occurred other than as alleged by the prosecution”; although these features are not essential conditions of admissibility in every case: Pfennig v R (1995) 182 CLR 461.

20 Ultimately, “the probative value of the evidence as tendency evidence must depend upon the circumstances of the case. The factors to be taken into account will usually include the cogency of the evidence relating to the conduct of the relevant person, the strength of the inference that can be drawn from that evidence as to the tendency … and the extent to which that tendency increases the likelihood that the fact in issue occurred”: Jacara v Perpetual Trustees (supra), Sackville J, paragraph [76].

21 The evidence, however, must first satisfy the characterisation as evidence of conduct on the part of Mr Ramsey or a tendency that Mr Ramsey has or had to act in a particular way or embrace a particular state of mind. That evidence must be relevant, that is, capable rationally of effecting the assessment of the probability of the existence of a fact in issue in the proceeding and the extent of the probative value must be significant. In making an assessment of whether the evidence reveals facts similar to the fact in issue (thus making the evidence relevant), Gummow J has drawn attention to the importance of identifying the materiality of the similar features as commonality of features may not necessarily reveal a feature relevant to the question immediately in controversy: D F Lyons Pty Ltd v Commonwealth Bank (1991) 28 FCR 597. For example, does the tendency evidence reveal a state or attitude of mind of Mr Ramsey concerning matters directly related to the reason for the dismissal conduct and the contended refusal to employ or is the evidence more general, more broadly based and perhaps of little probative value? A fact “is similar to another only when the common characteristic is the significant one for the purpose of the inquiry at hand”: D F Lyons v Commonwealth Bank (supra), Gummow J at 476.

22 It should, however, be remembered (absent any question of the operation of s.298V), in the context of a case such as this one, that the reason or reasons for engaging in conduct lie entirely within the mind of the relevant decision-maker. The state of mind of that person can only be established or proven (absent documents decisive of the question emerging on disclosure) as a conclusion based on inferences drawn from evidence (facts) of conduct or expressions of attitude towards matters relevant to the ultimate facts. Such inferences might be drawn out of many examples of conduct or expressions of attitude and in that sense be collectively of significant probative value so as to make the Court reluctant to affirmatively conclude that the tendency evidence “would not have significant probative value” for the purposes of s.97 of the Evidence Act.

23 In such a case and where statements have been exchanged for some considerable time prior to trial so that lengthy notice has been given of the tendency evidence and no prejudice in responding to the evidence arises, the Court may well be reluctant to make an affirmative finding of exclusion but rather admit the evidence and assess weight (that is, the ultimate significance of the probative value) in the overall balancing of all the evidence, particularly when the assessment is made after the trial has concluded.

24 The following remarks of Sir Owen Dixon in Martin v Osborne (1936) 55 CLR 367 at 375, although in the context of a prosecution of the respondent upon information under the Transport Regulation Act 1933, concerning the admissibility of circumstantial evidence continue to be of significant guidance and influence:

“If an issue is to be proved by circumstantial evidence, facts subsidiary to or connected with the main fact must be established from which the conclusion follows as a rational inference.

In the inculpation of an accused person the evidentiary circumstances must bear no other reasonable explanation.

This means that, according to the common course of human affairs, the degree of probability that the occurrence of the facts proved would be accompanied by the occurrence of the fact to be proved is so high that the contrary cannot reasonably be supposed. The circumstances which may be taken into account in this process of reasoning include all facts and matters which form constituent parts or ingredients of the transaction itself or explain or make intelligible the course of conduct pursued.

The moral tendencies of persons, their proneness or proneness’s to acts or omissions of a particular description, their reputations and their associations are in general not matters which it is lawful to take into account, and evidence disclosing them, if not otherwise relevant, is rigidly excluded.

But the class of acts and occurrences that may be considered includes circumstances whose relation to the fact in issue consists in the probability or increased probability, judged rationally upon common experience, that they would not be found unless the fact to be proved also existed.

But it is at least true, I think, that the acts of a party are admissible against him whenever they form a component in a combination of circumstances which is unlikely to occur without the fact in issue also occurring. The repetition of acts or occurrences is often the very thing which makes it probable that they are accompanied by some further fact. The frequency with which a set of circumstances recurs or the regularity with which a course of conduct is pursued may exclude, as unreasonable, any other explanation or hypothesis than the truth of the fact to be proved.””

25 The balance struck by the Evidence Act in rendering evidence probative of a fact in issue admissible and protecting a party from the prejudicial consequences of reliance on particular evidence is reflected in s 135 which provides:

“The Court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might:

(a) be unfairly prejudicial to a party; or

(b) be misleading or confusing; or

Paragraph 7, Davis Affidavit

26 As to paragraph 7 of the affidavit of Mr Davis, the evidence is directed to representation by Mr Davis of Union members before the AIRC on an approval hearing related to the AWAs. It is put forward as evidence of emerging hostility on the part of Mr Ramsey commencing with Union opposition to approval of the AWAs. Hostility is another name for an attitude of mind or a tendency towards a state of mind. The evidence is not evidence of a tendency on the part of Mr Ramsey to act or think in a particular way. Although the evidence is admissible on other grounds, it is not admissible as tendency evidence. It is evidence of a secondary fact, that is, the role or field of engagement by the Federal or State Union in the industrial affairs of the relevant Ramsey companies and their employees. The evidence suggests that those companies through Mr Ramsey embraced an attitude of mind towards the need to secure Australian workplace agreements with individuals divorced from award conditions. The evidence is admissible evidence of secondary facts and part of a narrative of industrial relations at the South Grafton Abattoir.

Paragraphs 9 to 54, Davis Affidavit

27 By paragraphs 9 to 54, Mr Davis describes his engagement in the following events.

28 In October or November 1998, Mr Davis commenced proceedings in the AIRC and small claim proceedings under s.179 of the Act in the Newcastle Local (Industrial Magistrates) Court against the Third Respondent on behalf of Trevor Moss. Mr Davis generated correspondence in those matters in his position as Assistant Secretary, conducted the proceedings and served papers upon the Third Respondent.

29 In early 1999, Mr Davis commenced unfair dismissal proceedings in the AIRC on behalf of Mr Jason Robertson and participated in conciliation hearings on 22 March 1999 and 7 April 1999. Mr Davis caused witness statements (including a statement from Mr Paul McKenzie) to be sent on 23 June 1999 to the lawyers for the abattoir group of employers, Hannigans, the lawyers in the present proceeding.

30 In April 1999, Mr Davis commenced unfair dismissal proceedings on behalf of Mr Paul Swain and conducted the following proceedings. The matter was heard on 27 and 28 September 1999 by Commissioner Jones, a decision made awarding compensation on 24 December 1999, an appeal made to the Full Bench of the AIRC seeking reinstatement, remission of the matter to Senior Deputy President Drake, a reinstatement order made by S D P Drake and an application for leave to appeal by the employer. The application was dismissed.

31 In July 1999, Mr Davis commenced unfair dismissal proceedings on behalf of Mr Colin Hambly and conducted the following proceedings against the Third Respondent. An application was filed on 19 July 1999 before the AIRC. The matter was heard on 30 January 2000, a reinstatement order was made by Commissioner Wilks on 14 February 2000. An application for leave to appeal was lodged by the employer with the Full Bench of the AIRC which was dismissed consequent upon a hearing on 23 June 2000.

32 In September 1999, Mr Davis commenced unfair dismissal proceedings in the AIRC on behalf of Mr Stephen Blackadder conducted the following proceedings against the Third Respondent. On 29 March 2000, Commissioner Redmond made a reinstatement order in favour of Mr Blackadder. An application for leave to appeal by the Third Respondent was unsuccessful on 26 June 2000. The AMIEU provided legal representation for Blackadder in Federal Court proceedings between Blackadder and the Third Respondent (and in connection with appeals) in the Federal Court of Australia in connection with events the subject of Commissioner Redmond’s determination.

33 In 1999, Mr Davis arranged for and sought to participate in safety inspections at the South Grafton Abattoir in conjunction with inspectors from WorkCover, sought to speak directly with Mr Ramsey, spoke with Ms Mortimer and Mr Marshall and was directed to leave the premises. Police were called to the site and Mr Davis and the WorkCover inspector were required to produce “authorities to enter industrial premises”, to the police. A similar inspection occurred on 18 May 1999.

34 On 23 October 2000, Mr Davis formulated correspondence for Mr Moss to send to the office of the Employment Advocate in connection with aspects of his AWA. Mr Davis caused approximately 100 forms to be circulated seeking the appointment by employees of the AMIEU as a bargaining agent in connection with the AWAs (due to generally expire in April or early May 2001) for each employee and reproduced on the back of that form a response to Mr Moss’s letter from the Employment Advocate which, through inadvertence, disclosed the name of Mr Moss. Mr Davis says that as the expiry date for the majority of the AWAs approached, he was a frequent visitor to the abattoir, met workers, Union delegates Delaforce and Moss, members of the consultative committees and Blackadder and Hambly.

35 Mr Davis deposes to these further events:

(a) in October and November 2001, Mr Davis met with abattoir employees concerning enterprise bargaining proposals of the Ramsey Group of Companies dated 3 and 16 October 2001 and 8 November 2001. Delaforce, Moss and P F McKenzie circulated up to 100 notices of meeting. Mr Davis says he advised extensively and resourced (with materials and comments) employee members of the enterprise bargaining committee (the first consultative committee) and subsequent consultative committees, prepared summaries and reports to workers (3 October and 16 October 2001 and 21 January 2002 and 16 April 2002), sought meetings with Mr Ramsey, notified Mr Ramsey of proposals to attend meetings of abattoir employees, prepared comparisons of wage rates for slaughter-persons, boners, slicers and slaughterhouse labourers under the award and the AWAs;

(b) on 18 January 2002 Mr Davis was present at a hearing before the AIRC of an application by the First, Second and Fourth Respondents and Paul Allen Contracting Services Pty Ltd for certification of version 3 of a proposed workplace agreement pursuant to s 170LK of the Act. The proposed agreement recognised that any employee member of an organisation of employees may request the organisation to represent the person in meetings and confer with the employer about the agreement;

(c) Mr Davis sought leave to intervene on behalf of the AMIEU in the AIRC proceedings, participated in proceedings, engaged in correspondence on 19 February 2002 concerning the proposed certified agreement and attended a meeting with abattoir employer representatives to discuss a memorandum of understanding;

(d) the remaining paragraphs deal with the chronology from April 2002 to August/September 2002 deposing to the hearing before the Full Bench of the AIRC concerning the application for certification of the workplace agreements, meeting with Union members, preparation of comparative tables, the lodging of an application with the AIRC to terminate the AWAs of 127 workers, correspondence with Mr Ramsey and a reply from Mr Ramsey’s lawyers and discussions with Ms Mortimer on behalf of the employer.

36 Paragraphs 9 to 54 form part of the narrative, are relevant to the issue of whether Mr Ramsey knew of the role of Mr Davis and the AMIEU at the abattoir and the extent to which particular individuals were members of the AMIEU and evidence of secondary facts from which inferences might be drawn concerning the primary facts in issue.

37 As to paragraph 57, the last sentence pressed by the Applicant is relevant to the issue of the stock shortage.

Stephen Blackadder

38 Exhibit 6 is the affidavit of Stephen Blackadder sworn on 19 August 2004.

39 The Respondents object to paragraphs 5, 6, 7 and 8 on the ground of relevance. Those paragraphs explain the events in paragraphs 9 and 10 which are not the subject of objection. The objection is not accepted.

40 As to paragraphs 12 and 13 challenged on the ground of relevance, paragraph 12 deposes to facts concerning the physical difficulty experienced by Mr Blackadder in rotating his right arm so as to perform a particular class of boning, namely, “hot neck boning”. The paragraph seeks to establish a reason for refusing to do the work. The evidence is arguably relevant to demonstrating or excluding a reason for dismissal. The paragraphs are evidence of secondary facts. Paragraph 13 explains the tasks involved in performing hot neck boning. Both paragraphs are admissible. Similarly, the last sentence of paragraph 15 explains that the tasks attract less remuneration which partly aids the evidence of the character of the tasks. As to paragraph 37, the name of the employer endorsed on Mr Blackadder’s payslips is relevant to the identity of his employer.

Alick Delaforce

41 Exhibit 9 is an affidavit of Alick Delaforce sworn 24 August 2004. The Respondents object to paragraphs 7 to 68 on the ground of relevance. Paragraphs 24, 25, 38, 39, 40, 44 and 47 are not pressed. Paragraphs 7, 8, 9 and 10 depose to discussions between employer representatives Mr Paul Marshall and Mr Stuart Ramsey and Delaforce in May, June and July 1999 concerning the employer’s practice of averaging “overs” and the operation at that time of the “tally system” which was said by Delaforce to be unfair. Those matters are relevant to facts in issue concerning Delaforce’s dissatisfaction with working conditions. The objection is not accepted.

42 Paragraphs 11 and 12 are supported by the Applicant on the ground of “tendency evidence”. The evidence is that on 13 August 1999, Delaforce was told by abattoir management to undertake “hot neck boning” for an indefinite period. Delaforce had a conversation with Mr Ramsey and was told that he had been sent hot neck boning because he had complained about doing more work than other boners yet had been paid the same amount of pay. Delaforce says Ramsey told him he would be doing hot neck boning “all the time”. The evidence is relevant to the question of whether Mr Ramsey, confronted with a complaint from an employee concerning conditions, exercised a power to assign a complaining employee to unpleasant tasks to discourage complaint from either that employee or employees generally. The evidence is evidence of a secondary fact from which inferences might be drawn having regard to all of the evidence.

43 Paragraphs 13, 14 and 15 depose to contextual facts concerning Mr Delaforce’s duties and Mr Delaforce’s participation in AIRC proceedings commenced by Blackadder against the Third Respondent and are relevant.

44 Paragraph 16 is pressed by the Applicant on the ground of tendency evidence. Paragraph 16 deposes to statements made by Mr Ramsey at a meeting of abattoir workers in the lunchroom of the abattoir on 15 February 2001. A typewritten transcript of the comments is annexed marked “AJD‑3”. Mr Delaforce says he has an independent recollection of the meeting and Mr Ramsey’s statements. Mr Delaforce says he made a tape-recording of what Mr Ramsey said at the meeting. The transcript reveals a number of strident and forthright expressions of opinion by Mr Ramsey about the role and utility of the AMIEU in contributing to an efficient workforce. The question in issue is whether the relevant Respondent engaged in conduct for the reason that particular employees were members of the Union (and in some cases a delegate of the Union) and that particular employees had expressed dissatisfaction with employment conditions at the abattoir consistent with a position taken by the Union to agitate for improved working conditions generally. Strong expressions of anti-Union feeling and hostility towards the Union and Union representatives are relevant to the questions in issue.

45 Some of the statements are these:

(a) “that slime-bag” [Davis] “bloody slimy”, “he’d give an eel a cold”;

(b) “I said to you before if he [Davis] came back in here there’d be trouble and there’s going to be trouble. Up to this stage it’s been costing me for these three or four fellas and some of the blokes, arseholes, in this bloody room went and lied in court and we’ve got fellas who are not here and being paid”;

(c) “There’s a few slime-bags in the joint and the greater number of you have done the right thing by them so you’re better off to leave and go to leave the rest of us alone so we can work together”. “I’ve been waiting for this bloody slime-bag [Davis] to come back … he always slimes back when he knows I’m in Casino on Wednesday and apparently came in here under the workers’ safety thing”. “As usual he lied, didn’t keep any ethics, because he didn’t really come for that as everyone knows, he came to hand out union forms”. “Now that’s alright, I don’t care who signed them it doesn’t matter, but if you want to negotiate with us and have some meaningful negotiations, the greater would be advised not to be a member of the union”.

(d) “The union I’d say … anyone that’s wanted to come and talk to us has talked to us, we’ve talked to them. I’ve had a couple of witnesses with one arsehole. But that sorted him. I think everyone knows who that is, because he just lies. That’s his problem. And he’s causing you blokes a fair bit of trouble. Now that fella’s come in here yesterday under a reported workers’ safety issue. He come in with arsehole and try and get blokes as members. No need for you blokes to be members. It’ll be a lot bloody fairer if we get rid of those three or four fellas I can tell you. But someone’s got to pay for it and it’s not going to be Stuart any longer. You don’t want some d’head down there telling us what to do and rooting us. You’ve only got to look at the number of abattoirs which have been closed since we opened. Every single one of them under that slime-bag union every single one of them. So if you want to go that way it doesn’t worry me. When the place doesn’t become viable, I’ll bloody close and you people will be paid your entitlements. Then I’ll have to put off the workers and you wouldn’t have a f–g job and that’s what you blokes want to remember. We’ve had a bloody good association here with 98% of the fellas. There’s a few arseholes that like squirming around … and lying to … but everyone knows who they are and I hope they feel uncomfortable and piss off.”

46 I am satisfied that the statements are relevant and have significant probative value in determining whether it is more likely than not that Mr Ramsey embraces a certain state of mind concerning the role of the Union in seeking to resist the preferred state of industrial conditions between the employer entities and the workforce at the South Grafton Abattoir and the extent to which Union membership by particular individuals informed Mr Ramsey’s state of mind in the events which occurred in 2002. Accordingly, the evidence is admissible.

47 Paragraphs 17 to 21 form part of a narrative and are admissible.

48 Paragraph 22 is supported on the ground of tendency evidence. The paragraph restates the effect of the statements made at the meeting on 15 February 2001 for which a transcript is exhibited and refers to “several occasions” at which Mr Delaforce was present when Mr Ramsey said words to the effect “there’s no need to get the Union involved. We can do things together between employer and employees”. These statements are less strident and lack specificity in the sense that no attempt has been made by the deponent to identify the date, time, place or other details of the statements. Accordingly, I am not satisfied that paragraph 22 has significant probative value.

49 Paragraph 23 goes to the question of dissatisfaction with conditions as do paragraphs 26 to 37. I accept that paragraphs 39 and 40 are contextually relevant to the narrative of events and paragraphs 41 to 45 are relevant to dissatisfaction with conditions. So too is paragraph 48. Paragraph 49 forms part of the narrative. Paragraph 50 is pressed on the ground of tendency. The evidence goes to a meeting held on Friday, 15 February 2002, called by Mr Stuart Ramsey at approximately 3.00pm between abattoir management and employee consultative committee members. Attendees were Morrow, Mortimer, Ramsey, Delaforce, Moss, Bryan Weier, Robert Colling, Steve Beetson, John Broadrick and Paul Marshall. The note of the meeting (AJD-10) notes that Mr Ramsey said he was upset at the fact that the application before the AIRC by the abattoir companies had been opposed. The committee considered the employees should go back to the award. Mr Ramsey said the employees could have their notice now if they went back on the award as the company could not continue. Committee members complained that the men were being paid less than the award. Mr Ramsey said the “company will not be dealing with Mr Davis”. Mr Ramsey said that if the abattoir went back on the award, the abattoir would be finished. Mr Delaforce raised questions about working conditions and payments if the Union agreed not to oppose certification of the workplace agreements. I propose to admit the paragraph as evidence of tendency. I accept that paragraphs 51 to 68 of Mr Delaforce’s affidavit are relevant to dissatisfaction with working conditions and form part of the narrative.

Kathleen May Evans

50 The Respondents object to all paragraphs of Ms Evans’s affidavit sworn 20 August 2004 (Exhibit 10) on the ground of relevance. I accept that paragraphs 2 to 9 form part of the contextual narrative and I propose to admit paragraph 5 on the ground of tendency evidence.

Gregory Simon Forrest

51 The Respondents object to paragraphs 7 to 53 of the affidavit of Forrest sworn 20 August 2004 (Exhibit 11) and a part of paragraph 55. I accept that paragraphs 7 and 8 form part of the contextual narrative. Paragraph 9 is relevant to dissatisfaction by Forrest with his conditions as are paragraphs 10 to 29. I propose to admit the paragraphs on the ground of tendency evidence.

Colin James Hambly

52 The Respondents object to paragraphs 6 to 34 of the affidavit of Hambly sworn 19 August 2004 (Exhibit 12) and paragraphs 42, 43, 46, 48 and 49 on the grounds of relevance and commentary. Paragraph 6 forms part of the contextual narrative. Paragraphs 7 and 8 are not pressed. Paragraph 9 is pressed on the ground of tendency. It deposes to statements by Mr Ramsey saying that “occupational health and safety issues [are] all bullshit and a waste of time. You’re better off cutting up meat and I would be better off out buying meat”. The evidence may be relevant to the question of whether compliance with regulatory requirements and safety standards applicable to a workplace and therefore forming part of working conditions are features of the employment relationship of Mr Ramsey would prefer to ignore (that is, regards as “bullshit”) and therefore relevant to the question of dissatisfaction with working conditions. Paragraphs 10, 11, 12 and 14 form part of the narrative. Paragraph 16 is supported on the ground of tendency and exhibits a letter (CJH‑3) from Ramsey Butchering Services Pty Ltd to Hambly. I propose to admit the evidence.

53 Paragraphs 17 to 19 are supported on the ground of tendency. I propose to admit those paragraphs going to the tendency of Mr Ramsey to discourage expressions of concern about working conditions. Paragraphs 19, 20, 21 and 22 go to the contextual narrative as does paragraph 23 apart from the first sentence. Similarly, paragraphs 27 to 34 go to the contextual narrative of events. Paragraph 42 deposes to the assertion that Hambly has never been offered work by the abattoir since his dismissal on 1 July 1999 and is admissible evidence of the absence of an offer notwithstanding his allegations of attempts to seek employment.

Michael McKenzie

54 The Respondents object to the last sentence of paragraph 5, paragraphs 7 to 27, paragraphs 32 and 41 to 45 of the affidavit of Michael Robert McKenzie sworn 20 August 2004 (Exhibit 13) on the grounds of relevance, conclusions and expressions of opinion. By paragraph 5, McKenzie says he did not consent to a change in his employer from the Third Respondent to the First Respondent. McKenzie is entitled to give admissible evidence of whether he gave consent. A question of law might arise as to whether other facts occurred which give rise to another conclusion. Paragraph 7 deposes to statements made by Mr Ramsey. The paragraph is admitted on the ground of tendency. Paragraphs 10 to 15 form part of the contextual narrative. Paragraph 16 deposes to the proposed introduction of a bonus system and a meeting of all employees of the abattoir in April 2002 at which Mr Ramsey said “I am introducing a new bonus system” and “you can either like it or lump it”. I propose to admit the paragraph, taken in conjunction with other evidence of the activity of the AMIEU and Mr Davis on the ground of tendency to demonstrate an attitude of mind that an employee dissatisfied with conditions might be confronted with dismissal. Paragraphs 17 to 20 deal with dissatisfaction with conditions. Those paragraphs are admissible. Paragraphs 21 to 27 deal with the contextual narrative and paragraph 32 (apart from the second sentence) deals with opportunities for employment available to McKenzie. Issues concerning paragraphs 41, 42 and 43 are resolved. Paragraph 44 addresses facts relevant to the allegation of refusal to employ McKenzie.

Paul Francis McKenzie

55 The Respondents object to paragraphs 7 to 92 of the affidavit of Paul McKenzie (Exhibit 14) on the ground of relevance. Paragraph 7 forms part of the narrative. Paragraph 8 is admissible on the ground of tendency to establish a state of mind of hostility towards the Union and particular Union officials. Paragraph 11 is part of the contextual narrative. Paragraph 12 is admissible on the ground of tendency. Paragraph 13 is admissible on the ground of tendency and Mr Ramsey’s knowledge of Union participation on behalf of abattoir workers. Paragraph 14 is admissible as relevant to dissatisfaction with working conditions. Paragraph 15 is relevant to dissatisfaction with conditions. Paragraphs 16 to 19 are admissible as to tendency or hostility towards the Union. Paragraphs 20 to 27 are admissible as part of a narrative and knowledge of Union membership at the abattoir. Paragraph 28 is admissible as to tendency towards hostility towards the Union. Paragraph 29 is admissible as to tendency. Paragraphs 32 to 35 go to dissatisfaction with working conditions. Paragraph 40 is admissible as to tendency. Paragraphs 42 to 44 form part of the narrative. Paragraphs 45, 46, 47, 49, 51 are admissible as to dissatisfaction with conditions. Paragraphs 52 to 56 form part of the contextual narrative. Paragraphs 57 to 62 are relevant to dissatisfaction with conditions as are paragraphs 63 and 64. Paragraphs 84 and 85 form part of the contextual narrative. Paragraphs 87, 88, 89, 90, 91 and 92 (apart from the third sentence) form part of the contextual narrative.

Trevor Glen Moss

56 The Respondents object to paragraphs 5 to 44 and paragraph 61 on the ground of relevance and paragraph 45 on the ground that the paragraph asserts an implied conclusion. The affidavit sworn 25 August 2004 is Exhibit 15. Paragraph 5 goes to the alleged change in the employment arrangements and is admissible. Paragraph 6 is admissible as to dissatisfaction with conditions. Paragraph 7 forms part of the narrative. Paragraph 8 is not admissible as to tendency. Paragraphs 9 to 12 form part of the narrative. Paragraph 13 is admissible as to tendency. Paragraph 14 is admissible as to the contextual narrative. Paragraphs 16 and 17 are admissible as to a tendency towards hostility to the Union and Union officials. Paragraph 18 is admissible as to the narrative and events concerning knowledge of Union membership. Paragraph 19 is admissible as to dissatisfaction with conditions and as to tendency. Paragraph 21 is admissible as to tendency. Paragraph 23 is admissible as to dissatisfaction with conditions. Paragraph 24 performs part of the contextual narrative. Paragraph 25 is not admissible as to tendency. Paragraph 26 forms part of the narrative. Paragraphs 29 and 30 are admissible as to tendency. Paragraph 32 forms part of the narrative. Paragraph 33 is admissible as to knowledge of Union membership. Paragraphs 34 and 35 form part of the contextual narrative. Paragraphs 36 and 37 are admissible as to dissatisfaction with conditions. Paragraph 38 forms part of the narrative. Paragraphs 39 and 40 are admissible as to dissatisfaction with conditions. Paragraphs 41 and 42 form part of the narrative. Paragraph 43 goes to dissatisfaction with conditions. Paragraph 45 is admissible in fixing the time of the meeting by reference to the AIRC hearing.

Terrance Anthony Brooks

57 The Respondents object to paragraphs 7, 8, 9, 11, 16, 25 and 35 on the grounds of relevance, commentary and argumentative matters and paragraphs 41 and 43 on the ground of conclusions. The affidavit of Terrance Brooks sworn 20 August 2004 is Exhibit 7. Paragraph 7 is relevant to the deponent’s dissatisfaction with conditions. Paragraphs 8 and 9 are admissible as to tendency evidence. Paragraph 11 forms part of the narrative. Paragraphs 16 and 25 are not pressed. The second last sentence of paragraph 35 is admissible as to fixing the moment in time of the event. Paragraphs 41 and 43 (to the extent not conceded by the Applicant) is relevant to the contention of a refusal to employ Brooks and the question of compensation payable for Brooks in the event a contravention is established.

Rodger Charles Campbell

58 The Respondents object to paragraphs 3 (conclusion), 5 (unclear as to the duties asserted), 6 (second sentence – conclusion), 8, 9, 10, 11, 18, 19, 20, 21 and 33 (relevance). As to paragraph 3, Campbell gives direct admissible evidence from his experience. Paragraph 5 is not pressed. Paragraph 6 is admissible evidence as to whether Campbell gave his consent to any change in his employment relationship. Paragraphs 8, 9, 10 and 11 are all supported on the ground of tendency. By itself, those paragraphs are not admissible as to tendency but taken in conjunction with the affidavits at large and the affidavit, in particular, of Delaforce, the paragraphs are admissible as to tendency. The challenged part of paragraph 18 is not pressed. Paragraph 19 taken together with all the evidence is admissible as to tendency and goes to dissatisfaction with conditions. Paragraphs 20 and 21 are admissible as to tendency. The challenged part of paragraph 33 is not pressed.

Paul Gerard Swain

59 The Respondents object to paragraphs 4 (conclusion), 24 (argumentative) and 29 (relevance) of the affidavit of Paul Swain sworn 19 August 2004 (Exhibit 17). Paragraph 4 is direct evidence of the work Swain says he performed. As to paragraph 24, the first sentence is not pressed but the remaining sentences are relevant to the question of the issue of refusal to employ. Paragraph 29 is not pressed.

John Kevin Young

60 The Respondents object to paragraphs 3 (conclusion or assumption of fact), 6-31 (relevance), 35 (conclusion, relevance), 38 and 39 (relevance) of the affidavit of John Young sworn 19 August 2004 (Exhibit 18). Paragraph 3 is an explanation of the commencement of employment and forms part of the narrative. Paragraph 6 deposes to Young’s membership of the AMIEU. Paragraphs 7, 8, 9 and 10 deal with conditions, issues surrounding conditions and dissatisfaction with conditions. Paragraphs 11 and 12 form part of the contextual narrative. Paragraph 13 is not pressed. Paragraph 14 deposes to meetings of workers informed of considerations within the first consultative committee of some aspects of working conditions. Paragraphs 15 and 16 form part of the narrative. Paragraph 17 deposes to facts relevant to dissatisfaction with conditions. Paragraphs 18 and 19 form part of the contextual narrative. Paragraph 20 goes to dissatisfaction with conditions, knowledge of Union membership and, in conjunction with all of the evidence, tendency. Paragraphs 21, 22 and 23 form part of the narrative. Paragraphs 24 and 25 go to dissatisfaction of conditions. Paragraphs 26 and 31 are not pressed. The parts of paragraph 35 to which objection is taken are not pressed. Paragraphs 38 and 39 go to the issue of refusal to employ and compensation.

Susan Jane Young

61 The Respondents object to paragraphs 6 (relevance), 12 to 22 (relevance), 34 (part only – relevance), 35 (relevance) of the affidavit of Susan Young sworn 19 August 2004 (Exhibit 19). Paragraph 6 goes to the employment relationship. Paragraphs 12 to 22 are admissible as to dissatisfaction with working conditions. Paragraphs 34 and 35 are not pressed.

Karen Leigh Mitchell

62 Exhibit 21 is the affidavit of Karen Leigh Mitchell sworn 10 October 2005. No objections are raised to this affidavit.

Raelene Kim Olive (Campbell)

63 The Respondents object to the second sentence of paragraph 5 in the affidavit of Raelene Olive sworn 19 August 2004 (Exhibit 16). That sentence exhibits a handwritten note of the deponent of a conversation with Ms Renee Mortimer deposed to in paragraph 4. The note is relevant to the matters deposed to in paragraph 4 and is admissible.

Paul Brown

64 Exhibit 2 is the affidavit of Paul Brown sworn 10 March 2004. No objections are raised in relation to this affidavit.

Top

INTRODUCTION

Background

The Prohibited Reasons

Mr Stephen Blackadder

Colin James Hambly

Paul Gerard Swain

Alick James Delaforce

Paul Francis McKenzie

Trevor Glen Moss

Terence Anthony Brooks, Rodger Charles Campbell, Gregory Simon Forrest, Michael Robert McKenzie, John Kevin Young and Susan Jane Young

The Period of the Relevant Events

A broader SUMMARY OF THE ISSUES

other material contentions framing the issues

The Applicant’s Contentions

The Respondents’ Contentions

the various applications for leave to amend and motions seeking particular orders

Splitting of Issues

Leave to Deliver a Reply

F F A S C

Notice of Motion by the Respondents

Leave to Amend in Terms of the F F A S C

Further Amended Defence

Objections to Evidence

No Case to Answer Submission by Respondents

the ‘no case’ to answer submission

the evidence of the applicant

the evidence relied upon by the applicant

The Industrial Arrangements with Employees Generally

Example

Example

Example

Comparison

The Notification of a Stock Shortage and Termination Notices

The Industrial Arrangements concerning Blackadder, Hambly and Swain

Mr Stephen Blackadder

Colin Hambly

Paul Swain

The Issue of the Stock Shortage and the Evidence of Mr John Graham Broadway

The Evidence of Mr Davis and Further Evidence of Mr Broadway

The Post-Dismissal and Re-Engagement Conduct

the transfer of employment

the australian workplace agreements

THE CONSIDERATION OF THE PROVISIONS

conclusions

the compensation claim

APPENDIX

Unresolved Objections to Evidence

Justin Davis

Principles Guiding the Reception of Tendency Evidence

Paragraph 7, Davis Affidavit

Paragraphs 9 to 54, Davis Affidavit

Stephen Blackadder

Alick Delaforce

Kathleen May Evans

Gregory Simon Forrest

Colin James Hambly

Michael McKenzie

Paul Francis McKenzie

Trevor Glen Moss

Terrance Anthony Brooks

Rodger Charles Campbell

Paul Gerard Swain

John Kevin Young

Susan Jane Young

Karen Leigh Mitchell

Raelene Kim Olive (Campbell)

Paul Brown