FEDERAL COURT OF AUSTRALIA

McIlwain v Ramsey Food Packaging Pty Ltd (No. 4) [2006] FCA 1302

INDUSTRIAL LAW – Consideration of the assessment of compensation pursuant to s 298U of the Workplace Relations Act 1996 (Cth) in respect of contraventions of s 298K – consideration of the assessment of a penalty pursuant to s 298U – consideration of whether a penalty so ordered ought to be paid to the individuals affected by the conduct – consideration of the scope of declarations to be made.

Workplace Relations Act 1996 (Cth)

Industrial Relations Act 1988 (Cth)

Financial Management and Accountability Act 1997 (Cth)

Financial Management and Accountability Regulations 1997 (Cth)

Workplace Relations Amendment (Work Choices) Act 2005 (Cth)

Workplace Relations Regulations 2006 (Cth)

Financial Framework Legislation Amendment Act 2005 (Cth)

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

McIlwain v Ramsey Food Packaging Pty Ltd (No. 3) [2006]FCA 994 Cited

Australian Municipal Administrative Clerical Services Union v Greater Dandenong City Council (No. 2) [2001] FCA 1076 Cited

Burazin v Blacktown City Guardian Pty Ltd (1996/1997) 142 ALR 144 Cited

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing & Allied Services Union of Australia v ACI Operations Pty Ltd [2006] FCA 122 Cited

Aitken v Construction, Mining, Energy, Timberyards, Sawmills and Woodworkers Union of Australia (Western Australian Branch) (1995) 63 IR 1 Cited

Fryar v System Services Pty Ltd (1996) 137 ALR 321 Cited

Constructions, Forestry, Mining, and Energy Union v Coal and Allied Operations Pty Ltd (1999) 94 IR 231 Quoted

Finance Sector Union v The Commonwealth Bank of Australia [2005] FCA 1847 Quoted

Australian Workers Union v Johnson Matthey (Aust) Inc [2000] FCA 728 Cited

Employment Advocate v National Union of Workers (2000) 99 IR 376 Cited

Automotive, Food, Engineering, Printing and Kindred Industries Union v DMG Industries Pty Ltd (2000) 102 IR 175 Cited

Australian Nursing Federation & Ors v Alcheringa Hostel Inc (2004) 136 FCR 530 Cited

Alfred v Walter Construction Group Ltd [2005] FCA 497 Cited

Australian Competition and Consumer Commission v Leahy Petroleum Pty Ltd (No 2) (2005) 215 ALR 281 Cited

Gibbs v City of Altona (1988) 42 IR 255 Quoted

Employees Federation of Australia v General Motors Holden Pty Ltd (1977) 32 FLR 100Cited

Electrical Trade Union of Australia v Sims Products Ltd C/A Bifco Batteries (1988) 42 IR 250 Cited

Australian Federation of Air Pilots v Skywest Airlines Pty Ltd (1996) 70 IR 284 Quoted

CFMEU v Coal and Allied Operations Pty Ltd (No 2) (1999) 94 IR 231 Quoted

Automotive, Food, Metals, Engineering, Printing and Kindred Industry Union v DMG Industries Pty Ltd (1999) 89 IR 360 Cited

PETER LESLIE MCILWAIN v RAMSEY FOOD PACKAGING PTY LTD, RAMSEY FOOD PACKAGING NO. 2 PTY LTD, RAMSEY BUTCHERING SERVICES PTY LTD AND RAMSEY FOOD SERVICES PTY LTD

Q66 OF 2003

GREENWOOD J

4 OCTOBER 2006

BRISBANE

THE COURT:

1.              Orders that the Applicant be given leave to amend the Application in terms of the Further Further Further Further Amended Application marked ‘Attachment A’ to the Notice of Motion filed 14 August 2006.

2.               Declares that in or about August and September 2002, the first respondent contravened s 298K(1)(a) of the Workplace Relations Act 1996 (Cth) by dismissing its employees Terrence Anthony Brooks, Rodger Charles Campbell and Susan Jane Young for the reason, or for reasons which included the reason, proscribed by s 298L(1)(a), namely, that each of those persons was a member of the Australasian Meat Industry Employees’ Union.

3.                  Declares that in or about August and September 2002, the first respondent contravened s 298K(1)(a) of the Workplace Relations Act 1996 (Cth) by dismissing its employees Terrence Anthony Brooks, Rodger Charles Campbell and Susan Jane Young for the reason, or for reasons which included the reason, proscribed by s 298L(1)(l), namely, that each of those persons, being members of the Australasian Meat Industry Employees’ Union which was seeking better industrial conditions, was dissatisfied with his or her conditions. 

4.                  Declares that in or about August and September 2002, the first respondent contravened s 298K(1)(a) of the Workplace Relations Act 1996 (Cth) by dismissing its employee Paul Gerard Swain for the reason, or for reasons which included the reason, proscribed by s 298L(1)(h), namely, that he was entitled to an order of an industrial body. 

5.                  Declares that in or about August and September 2002, the first respondent contravened s 298K(1)(a) of the Workplace Relations Act 1996 (Cth) by dismissing its employee Paul Gerard Swain for the reason, or for reasons which included the reason, proscribed by s 298L(1)(j), namely, that he had participated in a proceeding under an industrial law. 

6.                  Declares that in or about August and September 2002, the third respondent contravened s 298K(1)(a) of the Workplace Relations Act 1996 (Cth) by dismissing its employees Gregory Simon Forrest, Michael Robert McKenzie and Paul Francis McKenzie for the reason, or for reasons which included the reason, proscribed by s 298L(1)(a), namely, that each of those persons was a member of the Australasian Meat Industry Employees’ Union.  

7.                  Declares that in or about August and September 2002, the third respondent contravened s 298K(1)(a) of the Workplace Relations Act 1996 (Cth) by dismissing its employees Alick James Delaforce and Trevor Glen Moss for the reason, or for reasons which included the reason, proscribed by s 298L(1)(a), namely, that each of those persons was a delegate or member of the Australasian Meat Industry Employees’ Union.  

8.                  Declares that in or about August and September 2002, the third respondent contravened s 298K(1)(a) of the Workplace Relations Act 1996 (Cth) by dismissing its employees Alick James Delaforce, Gregory Simon Forrest, Michael Robert McKenzie, Paul Francis McKenzie and Trevor Glen Moss for the reason, or for reasons which included the reason, proscribed by s 298L(1)(l), namely, that each of those persons, being members of the Australasian Meat Industry Employees’ Union which was seeking better industrial conditions, was dissatisfied with his conditions.  

9.                  Declares that in or about August and September 2002, the third respondent contravened s 298K(1)(a) of the Workplace Relations Act 1996 (Cth) by dismissing its employees Stephen Blackadder and Colin James Hambly for the reason, or for reasons which included the reason, proscribed by s 298L(1)(h), namely, that each of those persons was entitled to an order of an industrial body.  

10.              Declares that in or about August and September 2002, the third respondent contravened s 298K(1)(a) of the Workplace Relations Act 1996 (Cth) by dismissing its employees Stephen Blackadder, Alick James Delaforce and Colin James Hambly for the reason, or for reasons which included the reason, proscribed by s 298L(1)(j), namely, that each of those persons had participated in a proceeding under an industrial law.  

11.              Declares that in or about August and September 2002, the third respondent contravened s 298K(1)(a) of the Workplace Relations Act 1996 (Cth) by dismissing its employee Paul Francis McKenzie for the reason, or for reasons which included the reason, proscribed by s 298L(1)(j), namely, that he had proposed to participate in a proceeding under an industrial law.  

12.              Declares that in or about August and September 2002, the third respondent contravened s 298K(1)(a) of the Workplace Relations Act 1996 (Cth) by dismissing its employees Stephen Blackadder and Alick James Delaforce for the reason, or for reasons which included the reason, proscribed by s 298L(1)(k), namely, that each of those persons had given evidence in a proceeding under an industrial law.  

13.              Declares that in or about August and September 2002, the third respondent contravened s 298K(1)(a) of the Workplace Relations Act 1996 (Cth) by dismissing its employee Paul Francis McKenzie for the reason, or for reasons which included the reason, proscribed by s 298L(1)(k), namely, that he had proposed to give evidence in a proceeding under an industrial law.  

14.              Declares that in or about August and September 2002, the Fourth Respondent contravened s 298K(1)(a) of the Workplace Relations Act 1996 (Cth) by dismissing its employee John Kevin Young for the reason, or for reasons which included the reason, proscribed by s 298L(1)(a), namely, that he was a member of the Australasian Meat Industry Employees’ Union. 

15.              Declares that in or about August and September 2002, the Fourth Respondent contravened s 298K(1)(a) of the Workplace Relations Act 1996 (Cth) by dismissing its employee John Kevin Young for the reason, or for reasons which included the reason, proscribed by s 298L(1)(l), namely, that he, being a member of the Australasian Meat Industry Employees’ Union which was seeking better industrial conditions, was dissatisfied with his conditions.  

16.              Declares that in or about September, October and November 2002, the first respondent contravened s 298K(1)(d) of the Workplace Relations Act 1996 (Cth) by refusing to employ Terrence Anthony Brooks, Rodger Charles Campbell, Gregory Simon Forrest, Michael Robert McKenzie, Paul Francis McKenzie and John Kevin Young for the reason, or for reasons which included the reason, proscribed by s 298L(1)(a), namely, that each of those persons was a member of the Australasian Meat Industry Employees’ Union.  

17.              Declares that in or about September, October and November 2002, the first respondent contravened s 298K(1)(d) of the Workplace Relations Act 1996 (Cth) by refusing to employ Alick James Delaforce and Trevor Glen Moss for the reason, or for reasons which included the reason, proscribed by s 298L(1)(a), namely, that each of those persons was a delegate or member of the Australasian Meat Industry Employees’ Union.  

18.              Declares that in or about September, October and November 2002, the Second Respondent contravened s 298K(1)(d) of the Workplace Relations Act 1996 (Cth) by refusing to employ Terrence Anthony Brooks, Rodger Charles Campbell, Gregory Simon Forrest, Michael Robert McKenzie, Paul Francis McKenzie and John Kevin Young for the reason, or for reasons which included the reason, proscribed by s 298L(1)(a), namely, that each of those persons was a member of the Australasian Meat Industry Employees’ Union.  

19.              Declares that in or about September, October and November 2002, the Second Respondent contravened s 298K(1)(d) of the Workplace Relations Act 1996 (Cth) by refusing to employ Alick James Delaforce and Trevor Glen Moss for the reason, or for reasons which included the reason, proscribed by s 298L(1)(a), namely, that each of those persons was a delegate or member of the Australasian Meat Industry Employees’ Union.  

20.              Declares that in or about September, October and November 2002, the Fourth Respondent contravened s 298K(1)(d) of the Workplace Relations Act 1996 (Cth) by refusing to employ Terrence Anthony Brooks, Rodger Charles Campbell, Gregory Simon Forrest, Michael Robert McKenzie, Paul Francis McKenzie and John Kevin Young for the reason, or for reasons which included the reason, proscribed by s 298L(1)(a), namely, that each of those persons was a member of the Australasian Meat Industry Employees’ Union.  

21.              Declares that in or about September, October and November 2002, the Fourth Respondent contravened s 298K(1)(d) of the Workplace Relations Act 1996 (Cth) by refusing to employ Alick James Delaforce and Trevor Glen Moss for the reason, or for reasons which included the reason, proscribed by s 298L(1)(a), namely, that each of those persons was a delegate or member of the Australasian Meat Industry Employees’ Union.  

22.              Declares that in or about September, October and November 2002, the first respondent contravened s 298K(1)(d) of the Workplace Relations Act 1996 (Cth) by refusing to employ Stephen Blackadder, Colin James Hambly and Paul Gerard Swain for the reason, or for reasons which included the reason, proscribed by s 298L(1)(h), namely, that each of those persons was entitled to an order of an industrial body.  

23.              Declares that in or about September, October and November 2002, the Second Respondent contravened s 298K(1)(d) of the Workplace Relations Act 1996 (Cth) by refusing to employ Stephen Blackadder, Colin James Hambly and Paul Gerard Swain for the reason, or for reasons which included the reason, proscribed by s 298L(1)(h), namely, that each of those persons was entitled to an order of an industrial body.  

24.              Declares that in or about September, October and November 2002, the Fourth Respondent contravened s 298K(1)(d) of the Workplace Relations Act 1996 (Cth) by refusing to employ Stephen Blackadder, Colin James Hambly and Paul Gerard Swain for the reason, or for reasons which included the reason, proscribed by s 298L(1)(h), namely, that each of those persons was entitled to an order of an industrial body.  

25.              Declares that in or about September, October and November 2002, the first respondent contravened s 298K(1)(d) of the Workplace Relations Act 1996 (Cth) by refusing to employ Stephen Blackadder, Alick James Delaforce and Colin James Hambly for the reason, or for reasons which included the reason, proscribed by s 298L(1)(j), namely, that each of those persons had participated in a proceeding under an industrial law.  

26.              Declares that in or about September, October and November 2002, the first respondent contravened s 298K(1)(d) of the Workplace Relations Act 1996 (Cth) by refusing to employ Paul Francis McKenzie for the reason, or for reasons which included the reason, proscribed by s 298L(1)(j), namely, he had proposed to participate in a proceeding under an industrial law.  

27.              Declares that in or about September, October and November 2002, the Second Respondent contravened s 298K(1)(d) of the Workplace Relations Act 1996 (Cth) by refusing to employ Stephen Blackadder, Alick James Delaforce and Colin James Hambly for the reason, or for reasons which included the reason, proscribed by s 298L(1)(j), namely, that each of those persons had participated in a proceeding under an industrial law. 

28.              Declares that in or about September, October and November 2002, the Second Respondent contravened s 298K(1)(d) of the Workplace Relations Act 1996 (Cth) by refusing to employ Paul Francis McKenzie for the reason, or for reasons which included the reason, proscribed by s.298L(1)(j), namely, he had proposed to participate in a proceeding under an industrial law.  

29.              Declares that in or about September, October and November 2002, the Fourth Respondent contravened s 298K(1)(d) of the Workplace Relations Act 1996 (Cth) by refusing to employ Stephen Blackadder, Alick James Delaforce and Colin James Hambly for the reason, or for reasons which included the reason, proscribed by s 298L(1)(j), namely, that each of those persons had participated in a proceeding under an industrial law.  

30.              Declares that in or about September, October and November 2002, the Fourth Respondent contravened s 298K(1)(d) of the Workplace Relations Act 1996 (Cth) by refusing to employ Paul Francis McKenzie for the reason, or for reasons which included the reason, proscribed by s 298L(1)(j), namely, he had proposed to participate in a proceeding under an industrial law. 

31.              Declares that in or about September, October and November 2002, the first respondent contravened s 298K(1)(d) of the Workplace Relations Act 1996 (Cth) by refusing to employ Paul Gerard Swain for the reason, or for reasons which included the reason, proscribed by s 298L(1)(j), namely, that he had participated in a proceeding under an industrial law.  

32.              Declares that in or about September, October and November 2002, the Second Respondent contravened s 298K(1)(d) of the Workplace Relations Act 1996 (Cth) by refusing to employ Paul Gerard Swain for the reason, or for reasons which included the reason, proscribed by s 298L(1)(j), namely, that he had participated in a proceeding under an industrial law.  

33.              Declares that in or about September, October and November 2002, the Fourth Respondent contravened s 298K(1)(d) of the Workplace Relations Act 1996 (Cth) by refusing to employ Paul Gerard Swain for the reason, or for reasons which included the reason, proscribed by s 298L(1)(j), namely, that he had participated in a proceeding under an industrial law. 

34.              Declares that in or about September, October and November 2002, the first respondent contravened s 298K(1)(d) of the Workplace Relations Act 1996 (Cth) by refusing to employ Stephen Blackadder and Alick James Delaforce for the reason, or for reasons which included the reason, proscribed by s 298L(1)(k), namely, that each of those persons had given evidence in a proceeding under an industrial law.  

35.              Declares that in or about September, October and November 2002, the Second Respondent contravened s 298K(1)(d) of the Workplace Relations Act 1996 (Cth) by refusing to employ Stephen Blackadder and Alick James Delaforce for the reason, or for reasons which included the reason, proscribed by s 298L(1)(k), namely, that each of those persons had given evidence in a proceeding under an industrial law.  

36.              Declares that in or about September, October and November 2002, the Fourth Respondent contravened s 298K(1)(d) of the Workplace Relations Act 1996 (Cth) by refusing to employ Stephen Blackadder and Alick James Delaforce for the reason, or for reasons which included the reason, proscribed by s 298L(1)(k), namely, that each of those persons had given evidence in a proceeding under an industrial law.  

37.              Declares that in or about September, October and November 2002, the first respondent contravened s 298K(1)(d) of the Workplace Relations Act 1996 (Cth) by refusing to employ Paul Francis McKenzie for the reason, or for reasons which included the reason, proscribed by s 298L(1)(k), namely, that he had proposed to give evidence in a proceeding under an industrial law.  

38.              Declares that in or about September, October and November 2002, the Second Respondent contravened s 298K(1)(d) of the Workplace Relations Act 1996 (Cth) by refusing to employ Paul Francis McKenzie for the reason, or for reasons which included the reason, proscribed by s 298L(1)(k), namely, that he had proposed to give evidence in a proceeding under an industrial law.  

39.              Declares that in or about September, October and November 2002, the Fourth Respondent contravened s 298K(1)(d) of the Workplace Relations Act 1996 (Cth) by refusing to employ Paul Francis McKenzie for the reason, or for reasons which included the reason, proscribed by s 298L(1)(k), namely, that he had proposed to give evidence in a proceeding under an industrial law.  

40.              Declares that in or about September, October and November 2002, the first respondent contravened s 298K(1)(d) of the Workplace Relations Act 1996 (Cth) by refusing to employ Terrence Anthony Brooks, Rodger Charles Campbell, Alick James Delaforce, Gregory Simon Forrest, Michael Robert McKenzie, Paul Francis McKenzie, Trevor Glen Moss and John Kevin Young for the reason, or for reasons which included the reason, proscribed by s 298L(1)(l), namely, that each of those persons, being members of the Australasian Meat Industry Employees’ Union which was seeking better industrial conditions, was dissatisfied with his conditions.  

41.              Declares that in or about September, October and November 2002, the Second Respondent contravened s 298K(1)(d) of the Workplace Relations Act 1996 (Cth) by refusing to employ Terrence Anthony Brooks, Rodger Charles Campbell, Alick James Delaforce, Gregory Simon Forrest, Michael Robert McKenzie, Paul Francis McKenzie, Trevor Glen Moss and John Kevin Young for the reason, or for reasons which included the reason, proscribed by s 298L(1)(l), namely, that each of those persons, being members of the Australasian Meat Industry Employees’ Union which was seeking better industrial conditions, was dissatisfied with his conditions.  

42.              Declares that in or about September, October and November 2002, the Fourth Respondent contravened s 298K(1)(d) of the Workplace Relations Act 1996 (Cth) by refusing to employ Terrence Anthony Brooks, Rodger Charles Campbell, Alick James Delaforce, Gregory Simon Forrest, Michael Robert McKenzie, Paul Francis McKenzie, Trevor Glen Moss and John Kevin Young for the reason, or for reasons which included the reason, proscribed by s 298L(1)(l), namely, that each of those persons, being members of the Australasian Meat Industry Employees’ Union which was seeking better industrial conditions, was dissatisfied with his conditions.’ 

43.              Orders that the First Respondent pay a penalty of $28,000 in respect of conduct in contravention of Pt XA of the Workplace Relations Act 1996 (Cth).

44.              Orders that the Second Respondent pay a penalty of $14,000 in respect of conduct in contravention of Pt XA of the Workplace Relations Act 1996 (Cth).

45.              Orders that the Third Respondent pay a penalty of $14,000 in respect of conduct in contravention of Pt XA of the Workplace Relations Act 1996 (Cth).

46.              Orders that the Fourth Respondent pay a penalty of $28,000 in respect of conduct in contravention of Pt XA of the Workplace Relations Act 1996 (Cth).

47.              Orders that the penalty imposed upon the First, Second, Third and Fourth Respondents by paragraphs 43, 44, 45, and 46, be paid to the Employment Advocate constituted by the Workplace Relations Act 1966 (Cth).

48.              Orders that the following individuals be paid the following compensation pursuant to the Workplace Relations Act 1996 (Cth) by the following Respondents:

(a) Terence Anthony Brooks $4,000 by the First Respondent

(b) Rodger Charles Campbell $9,624.06 by the First Respondent

(c) Susan Jane Young $17,525.52 by the First Respondent

(d) Paul Gerard Swain $19,500.21 by the First Respondent

(e) Stephen Blackadder $7,102.30 by the Third Respondent

(f) Alick James Delaforce $4,228.61 by the Third Respondent

(g) Gregory Simon Forrest $8,496.25 by the Third Respondent

(h) Colin James Hambly $21,545.36 by the Third Respondent

(i) Michael Robert McKenzie $5,990 by the Third Respondent

(j) Paul Francis McKenzie $7,761 by the Third Respondent

(k) Trevor Glen Moss $4,000 by the Third Respondent

(l) John Kevin Young $15,444.39 by the Fourth Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1                                             I have before me the further hearing of the trial of the action in relation to a number of specific matters consequent upon the publication of Reasons for Judgment on 30 June 2006 in proceedings commenced by the Employment Advocate for the purposes of the Workplace Relations Act 1996 (Cth) (‘the Act’) pursuant to which a declaration was sought that each of the four respondents 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 employed at the South Grafton Abattoir for a prohibited reason or reasons that included a prohibited reason. Secondly, that 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 prohibited reasons.

2                                             Apart from a declaration of a contravention of s 298K of the Act, the Employment Advocate sought 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.

3                                             Section 298T(2)(d) of Div. 6 of Pt XA of the Act 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.

4                                             On 30 June 2006, I published Reasons for Judgment and adjourned the matter to a date to be fixed to enable the Applicant to formulate short minutes of order reflecting the declarations to be made arising out of the findings contained in the reasons 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, the principles governing whether, and if so, the basis upon which a penalty pursuant to s 298U(a) of the Act ought to be imposed, further submissions concerning the position in relation to Mr Blackadder and submissions concerning the principles guiding the circumstances in which an order might be made under s 356 of the Act that any penalty imposed upon any one or more of the Respondents be paid to the Employment Advocate (McIlwain v Ramsey Food Packaging Pty Ltd [2006] FCA 828).

5                                             No final orders have been made in the matter consequent upon the published Reasons for Judgment.

6                                             On 3 August 2006, the matter was further reviewed and these directions were made (McIlwain v Ramsey Food Packaging Pty Ltd (No. 3) : [2006] FCA 994):

‘(a) the Respondents shall file in the court and serve upon the Applicant any further affidavit material upon which any of them intend to rely in relation to the determination of the question of whether a penalty ought to be imposed upon any of them pursuant to s 298U(a) of the Workplace Relations Act 1996 (Cth) by 4.00pm, Thursday, 17 August 2006;

(b) the Applicant shall file affidavits in reply (if any) by Thursday, 24 September 2006; and

(c) the matter will be re-listed for the hearing of further submissions at 10.15am on Monday, 28 August 2006.’

7                                             I had previously made directions that the Applicant and the Respondents file and serve written submissions in relation to the principles guiding the assessment of compensation for the purposes of the Act and the principles informing whether, and if so the basis upon which, a penalty pursuant to s 298U ought to be imposed. On Friday, 1 September 2006, the further hearing of these matters took place.

8                                             On 14 August 2006, the Applicant filed a notice of motion returnable 1 September 2006 by which the Applicant sought to further amend the application so as to seek an order pursuant to s 356(b) of the Act that any monetary penalty imposed upon any of the Respondents be paid to the individuals rather than the Applicant. The Applicant has filed and served written submissions in support of the orders sought. The Respondents object to the proposed amendment as it has been raised very late in the day. However, the Respondents are not able to point to any prejudice to the Respondents as any penalty that might be imposed upon any one or more of the Respondents would either be paid to the Consolidated Revenue Fund of the Commonwealth or the Employment Advocate or as might otherwise be ordered consistent with principle.

9                                             I will give leave to amend the application in terms of the Further Further Further Further Amended Application marked Attachment ‘A’ to the Notice of Motion filed 14 August 2006 which reflects an amended order 5 sought by the application in these terms:

‘5. An order under s356(b) of the Act that any penalty imposed on the respondents be paid to the persons named in paragraph 1 above.’

The Affidavit of Stuart Bruce Ramsey

10                                          On 14 August 2006, the Respondents filed evidence upon which they proposed to rely in relation to the further matters to be addressed. The evidence consists of an affidavit sworn 10 August 2006 by Mr Stuart Bruce Ramsey, the Managing Director of each of the four respondent companies. The affidavit is in these terms:

‘1. I am the Managing Director of each Respondent Company. With the assistance of various staff members I manage the business of the Respondent Companies. ’

2. On 3 August 2006, Justice Greenwood dismissed a notice of motion made on behalf of my companies seeking a stay of any further hearing of the proceeding being Federal Court proceedings QUD66 of 2003 and ordered the Respondents’ file and serve further affidavit material upon which they intend to rely in relation to the determination of the question of whether a penalty ought to be imposed upon any of my Respondents Companies.

3. Annexed hereto and marked “SBR-1” are copies of draft accounts for 30 June 2006 for each of the Respondent Companies. Three of the companies are labour hire companies, with the execution of Ramsey Butchering Services Pty Ltd which ceased to be an employer at South Grafton Abattoir on or about 3 September 2001. All four (4) Respondent Companies own no assets of any significance and their sole income is a labour hire fee which is expended for the provision of that labour.

4. The wholesale beef industry is in troubled times. Markets are hard to service. Appropriate cattle are not available. The South Grafton Abattoir as a total enterprise is losing thousands of dollars per week. It may shut shortly.

5. I expect more abattoirs to close soon. Over the last ten (10) years the number of abattoirs has decreased. There are very few abattoirs now in existence.

6. At the time of the stock shortage I obtained legal advice from my solicitor, Junior Counsel and Senior Counsel as to the appropriate method of arranging staff stand downs when closing the plant. Likewise when reopening the plant I again sought advice and acted on that advice.’

11                                          Those six paragraphs represent the totality of the evidence put before the court in relation to these additional matters by the Respondents. The attachment to the affidavit comprises the financial report (that is financial accounts) to 30 June 2006 for Ramsey Food Packaging Pty Ltd, Ramsey Food Packaging No. 2 Pty Limited, Ramsey Butchering Services Pty Limited and Ramsey Food Services Pty Limited.

12                                          The Applicant objects to aspects of Mr Ramsey’s affidavit. As to the first three sentences at paragraph 4, the Applicant contends that these sentences are simply expressions of opinion. In addition, they are said to be ‘so vague as to be useless in any consideration of the issues’ now before the court. Even if the subject matter of each sentence is sufficiently specific and is shown to rest upon a foundation of fact giving rise to the conclusions, the matters are said, in any event, to be irrelevant. Further, the only matters in paragraph 4 that are said to be relevant are the matters going to the circumstances of the South Grafton Abattoir.

13                                          As to paragraph 5, the Applicant objects to the whole of it although it simply comprises three sentences. The basis for the objection is said to be that the matters are expressions of opinion as to what might happen in relation to other abattoirs, a statement that the number of abattoirs has decreased and an observation that there are very few abattoirs now in existence. All of these matters are said to be vague and irrelevant.

14                                          As to paragraph 6, Mr Ramsey says that he relied upon legal advice from not only his solicitor but also Junior Counsel and Senior Counsel as to the appropriate method of arranging stand downs when closing the plant. Further, Mr Ramsey says that when reopening the plant, he again sought advice presumably from each of the three previously nominated advisers and acted on that advice. The Applicant objects to paragraph 6 on the grounds that the statements are hearsay; the deponent has sought to suggest inferentially the advice he was given consistent with things he actually did; and the affidavit fails to disclose the advice itself. Accordingly, neither the Applicant nor the court, it is said, is in a position to make an informed assessment of the scope of the advice, its materiality to particular conduct by Mr Ramsey on behalf of the Respondents or the extent to which Mr Ramsey relied upon the advice or parts of it. Mr Ramsey has elected not to waive privilege in relation to the advice, nor attach a copy of any written advice to his affidavit, nor depose to the central and critical matters which provided the foundation for his election to act in any particular way.

15                                          In response to these matters, counsel for the Respondents says that as to paragraph 4, the assertions made by Mr Ramsey are simply a fact. The sentences depose to Mr Ramsey’s state of mind. In any event, if the statements represent a matter of opinion, Mr Ramsey is qualified to give that opinion as he is the Managing Director of each respondent company. Further, paragraphs 4 and 5 are said to be relevant to the financial impact upon the Respondents of a penalty and the matter of public interest. The public interest is said to be reflected in the community interest in securing enduring employment at the South Grafton Abattoir particularly having regard to the historical circumstances surrounding the industrial arrangements which were put in place to enable the South Grafton Abattoir to recommence under Mr Ramsey’s governance after the closure of the abattoir under the administration of R J Gilbertson Pty Ltd. Accordingly, counsel for the Respondents says that I should have regard to the financial circumstances confronting the Respondents based upon the evidence of the accounts and consider the public interest in future employment. Counsel also says that the three sentences making up paragraph 5 provide contextual relevance concerning the circumstances in which the South Grafton Abattoir operates.

16                                          As to paragraph 6, counsel says that the evidence that Mr Ramsey sought advice from his lawyers, obtained advice and acted upon it is relevant to Mr Ramsey’s state of mind when considering the question of penalty. Counsel observes that it is simply a fact that needs to be taken into account in weighing where the balance lies in assessing a possible penalty.

17                                          I will admit the entirety of the affidavit into evidence. The evidence is largely unhelpful. Paragraph 4 comprises four short conclusionary sentences or statements of prevailing circumstances. There are no foundation facts supporting the statements and no attempt has been made to describe the environment within which the Respondents operate either in a direct sense or contextually so as to provide the court with a matrix of fact concerning the circumstances confronting the operational activity of each company. Mr Ramsey as Managing Director of each of the four Respondents must be in a position to express an informed assessment of that environment and those circumstances.

18                                          Similarly, paragraph 5 simply comprises three sentences.

19                                          As to paragraph 6, I propose to have regard to the fact that Mr Ramsey took legal advice. However, the brevity with which the matter is expressed does not place me in a position where I can weigh that fact in any meaningful way as I have no sense of the materiality of the advice, the scope of the advice or the extent to which Mr Ramsey relied upon it. In order to be helpful and properly serve the interests of the Respondents, the deponent would need to disclose the advice so as to give the point Mr Ramsey seeks to make by force of paragraph 6, some real coherence.

BACKGROUND MATTERS

20                                          On 30 June 2006, I published Reasons for Judgment (‘the reasons’) in relation to the matters dealt with in the reasons. I do not propose to repeat the detail of those reasons in the course of these considerations although it will be necessary to identify some aspects of the findings and the contextual events in these reasons arising out of the further hearing. These reasons are to be read in conjunction with the earlier reasons of 30 June 2006.

21                                          The material matters are these.

22                                          In August and September 2002 the First, Third and Fourth Respondents were the employers of the 12 individuals (among others) identified at [2] and [114] of the reasons. Those paragraphs identify the particular bilateral employment relationship between each individual and the relevant Respondent employer. The individuals are Brooks, Campbell, Susan Young, Swain, Blackadder, Delaforce, Forrest, Hambly, Michael McKenzie, Paul McKenzie, Moss and John Young.

23                                          Each individual was employed in a particular capacity undertaking work at the South Grafton Abattoir. The position each individual held is identified at [114] of the reasons. The history of the working engagement of each individual at the South Grafton Abattoir is described at [115]. The South Grafton Abattoir had for many years been owned and operated by R J Gilbertson Pty Ltd (‘Gilbertson’). The abattoir had closed in December 1997 with Gilbertson asserting failing profitability and substantial accumulated losses. In approximately April 1998, the abattoir reopened under the new ownership and operational governance of Mr Stuart Ramsey acting on behalf of entities including the First Respondent, the Third Respondent and the Fourth Respondent.

24                                          The immediate events of termination involve these matters. On Monday, 19 August 2002, the Australian Industrial Relations Commission (‘AIRC’) made an order which had the effect of terminating a range of Australian Workplace Agreements (‘AWAs’) with effect from 23 September 2002 including AWAs signed by Blackadder, Brooks, Campbell, Delaforce, Forrest, Hambly, Michael McKenzie, Paul McKenzie, Moss, John Young and Susan Young.

25                                          On Wednesday, 21 August 2002, management of the South Grafton Abattoir placed a notice on the abattoir noticeboard to all employees advising that the plant continued to operate under a stock shortage for the purposes of the AWAs until advised otherwise. On 29 August 2002, a further notice was placed on the noticeboard referring to the notice of 21 August 2002 and notifying employees that there would not be sufficient stock to kill on Monday, 2 September 2002 and that certain consequences would flow from that event. The notice said that the Australasian Meat Industry Employees’ Union (‘AMIEU’) had been advised of the position. Also on 29 August 2002, employees were handed a stock shortage notice.

26                                          On 10 September 2002, the individuals received a letter of termination from abattoir management and a further letter of clarification of the position on 13 September 2002. The events are described in detail at paragraphs [180] to [187] of the reasons.

27                                          The act of termination or dismissal had a certain pre-history.

28                                          Although Stuart Ramsey had conducted discussions with Ms Kathleen Evans, the secretary of the Newcastle and northern branch of the AMIEU, as described at [102] and [103] of the reasons, no agreement had been reached to establish an enterprise agreement. Rather, the First, Third and Fourth Respondents entered into AWAs with their employees at the various functional levels of operation of the abattoir. Those functional activities are described at [106] to [111].

29                                          The Employment Advocate referred each of the AWAs to the AIRC for an approval hearing. The AIRC concluded that because the ‘tally system’ (see [107] of the reasons) adopted by the AWAs was more disadvantageous to employees than the relevant award with a follow through effect upon benefits, the AWAs failed to satisfy the ‘no disadvantage test’. However, having regard to other factors, the AIRC concluded that it was not contrary to the public interest to approve the AWAs coupled with particular undertakings [117] – [120].

30                                          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 as the AWA was replaced or terminated.

31                                          On 15 February 2001, Stuart Ramsey convened and addressed a meeting of employees at the abattoir. At that time, many of the employees believed that a new agreement would be in place during April 2001 but no new agreement was to be proposed until October 2001. The delay was attributed to conduct on the part of Mr Davis and the AMIEU [123] - [131].

32                                          On 3 October 2001, Stuart Ramsey proposed a certified agreement with a vote to be taken 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. At a meeting on 3 October 2001 of abattoir workers chaired by Paul McKenzie, a decision was taken to establish a consultative committee to negotiate aspects of the proposal with Mr Ramsey. The members of the committee included Delaforce, Moss and Paul McKenzie.

33                                          Delaforce was expressing dissatisfaction on a number of grounds with working conditions [136] – [144].

34                                          On 5 October 2001, Mr Davis on behalf of the AMIEU wrote to Mr Ramsey advising that he proposed to meet with employees and discuss aspects of the proposal [145] – [149].

35                                          On 16 or 17 October 2001, a second proposal for an enterprise agreement was distributed by the abattoir. A critique of that proposal was prepared by the AMIEU. The proposal was to be voted upon by employees on 5 November 2001.

36                                          On 8 November 2001, a third proposal was put forward by the employer entities reflecting a further change. The vote occurred on 26 November 2001.

37                                          On 18 January 2002, the AIRC conducted a hearing of an application by the First, Second and Third Respondents and Paul Allen Contracting Services Pty Ltd for certification of an enterprise agreement. The AMIEU sought leave to intervene and oppose the application on a number of grounds. On 8 February 2002, Commissioner Bacon published his decision arising out of the application and referred the matter 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 proposed enterprise agreement [157] – [162].

38                                          On 15 February 2002, Stuart Ramsey met with representatives of the employees. Some committee members said that they considered that they should go back to the award conditions. Some heated exchanges occurred concerning the impact or effect of award conditions upon the abattoir’s operation [164] – [165]. Further discussions took place concerning the question of whether the AMIEU would support certification of the agreement. A memorandum of understanding was proposed. No agreement was reached and the application for certification was withdrawn.

39                                          In April 2002, a second consultative committee was established. The members included Michael McKenzie, Brooks, Campbell and John Young.

40                                          On 11 April 2002, Alick Delaforce received notice from Stuart Ramsey concerning the introduction of a new bonus system and the terms upon which a bonus might be paid [171]. Alick Delaforce expressed dissatisfaction with the operation of the bonus system as did others [172] – [174].

41                                          During May, June and July 2002, meetings took place between employees at the abattoir and the AMIEU. On 14 May 2002, Alick Delaforce and Paul McKenzie collected complaint forms from production employees which were lodged with the office of the Employment Advocate. Alick Delaforce requested assistance from the AMIEU in making an application to the AIRC for termination of the AWAs. The applications were lodged on 30 July 2002. An order was made on 19 August 2002 which had the effect of terminating many of the AWAs effective from 23 September 2002.

42                                          On 19 July 2002, Alick 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 included John Young, Trevor Moss, Paul McKenzie, Gregory Forrest, Terrence Brooks, Alick Delaforce and Susan Young.

43                                          The articulated basis for the dismissal of the employees including the 12 identified individuals the subject of the proceedings was a stock shortage.

44                                          On 16 September 2002, in light of the events and the termination letters of 10 September 2002 and 13 September 2002 [26] of these reasons, Alick Delaforce, Trevor Moss and Justin Davis sought a meeting with Stuart Ramsey to discuss re‑engagement of Union members of the workforce. Justin Davis told management that all employees were prepared to work and would work if given work. Management said that the abattoir was offering work that day to only those individuals contacted by the abattoir [188]. On 17 September 2002, Justin Davis conducted (with Mr Brown) a meeting of workers outside the abattoir. 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. Alick Delaforce asked the gate security guard whether his name was on a list of workers allowed to work that day and was told his name was not on the list. Later that day he was told in a telephone call from management that there would be work for him at the abattoir for the following day, 18 September 2002.

45                                          On the evening of Tuesday, 17 September 2002, Alick Delaforce and Trevor Moss conceived a compromise proposal to resolve the re‑employment of all employees. A written proposal was given to management [190]. Stuart Ramsey refused to consider the compromise proposal until all workers rostered for that day, 17 September 2002, returned to work.

46                                          At [195] – [202] of the reasons, conclusions are reached arising out of findings in relation to the events. At [203] of the reasons, these observations are made:

‘203. … 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. …’

47                                          The circumstances in relation to Stephen Blackadder, Colin Hambly and Paul Swain have a different history. The relevant events are set out at [204] – [268]. At [267], the following finding is made:

‘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).’

48                                          At [269] – [288], the evidence of John Graham Broadway in relation to the contended stock shortage is addressed. The evidence in relation to the role of seasonal factors and the contended stock shortage are further addressed at [289] – [304].

49                                          In the period immediately after the dismissal of the 12 individuals, 11 of them took steps to seek employment during the re‑engagement period. Those steps are set out at [306] and they are these:

’306. 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.’

50                                          It is clear that the abattoir had commenced employing workers at least by 17 September 2002 and attempts had been made by a number of workers to secure employment on 19 and 20 September 2002. All of these 11 men had worked for the South Grafton Abattoir during the days of operation by Gilbertson. The relationship had been a long‑standing one at least from March or April 1998 [307] in terms of Mr Ramsey’s governance. At [310], the conclusion is reached that:

‘310. … 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.’

51                                          At [312], I conclude:

‘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.’

52                                          In the context of the dismissal conduct and the re‑engagement process, the operation of the AWAs is discussed at [318] – [322]. At [323], a conclusion is reached in these terms:

‘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.’

53                                          At [356] – [360], the following conclusions are reached:

‘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.’

54                                          At [367], a finding is reached as to the question of whether a refusal to employ another person, in the circumstances of the case, required evidence to be established of a position to be filled before s 298V might have any operation. As to that matter, I concluded:

‘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.’

55                                          At [376], I found that the First, Second and Fourth Respondents had failed to demonstrate that the alleged prohibited reasons were not an operative reason for a refusal to employ any one of the 11 individuals in the proceedings (that is, all claimants apart from Susan Young). As to the differentiation between those Respondents, I made this observation at [377]:

‘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.’

56                                          Accordingly, I was satisfied that each of the First, Second and Fourth Respondents engaged in a contravention of s 298K(1)(d) by refusing to employ particular individuals.

THE DECLARATIONS

57                                          Having regard to the findings contained in the reasons, I propose to make the following declarations. One further observation should be made arising out of the earlier reasons. At [378] reference is made to a contravention of s 298K(1) with respect to the dismissal conduct on the part of all four Respondents. It is clear from the reasons that the discussion of the dismissal issue is in the context of the conduct of those entities that were relevantly employers of the 12 individuals, namely, the First, Third and Fourth Respondents. I do not propose to make any declarations in relation to conduct in connection with dismissal so far as the Second Respondent is concerned. The declarations are these:

‘The Court declares that:

1.      In or about August and September 2002, the First Respondent contravened s 298K(1)(a) of the Workplace Relations Act 1996 (Cth) by dismissing its employees Terrence Anthony Brooks, Rodger Charles Campbell and Susan Jane Young for the reason, or for reasons which included the reason, proscribed by s 298L(1)(a), namely, that each of those persons was a member of the Australasian Meat Industry Employees’ Union.

2.      In or about August and September 2002, the first respondent contravened s 298K(1)(a) of the Workplace Relations Act 1996 (Cth) by dismissing its employees Terrence Anthony Brooks, Rodger Charles Campbell and Susan Jane Young for the reason, or for reasons which included the reason, proscribed by s 298L(1)(l), namely, that each of those persons, being members of the Australasian Meat Industry Employees’ Union which was seeking better industrial conditions, was dissatisfied with his or her conditions.

3.      In or about August and September 2002, the First Respondent contravened s 298K(1)(a) of the Workplace Relations Act 1996 (Cth) by dismissing its employee Paul Gerard Swain for the reason, or for reasons which included the reason, proscribed by s 298L(1)(h), namely, that he was entitled to an order of an industrial body.

4.      In or about August and September 2002, the First Respondent contravened s 298K(1)(a) of the Workplace Relations Act 1996 (Cth) by dismissing its employee Paul Gerard Swain for the reason, or for reasons which included the reason, proscribed by s 298L(1)(j), namely, that he had participated in a proceeding under an industrial law.

5.      In or about August and September 2002, the Third Respondent contravened s 298K(1)(a) of the Workplace Relations Act 1996 (Cth) by dismissing its employees Gregory Simon Forrest, Michael Robert McKenzie and Paul Francis McKenzie for the reason, or for reasons which included the reason, proscribed by s 298L(1)(a), namely, that each of those persons was a member of the Australasian Meat Industry Employees’ Union.

6.      In or about August and September 2002, the Third Respondent contravened s 298K(1)(a) of the Workplace Relations Act 1996 (Cth) by dismissing its employees Alick James Delaforce and Trevor Glen Moss for the reason, or for reasons which included the reason, proscribed by s 298L(1)(a), namely, that each of those persons was a delegate or member of the Australasian Meat Industry Employees’ Union.

7.      In or about August and September 2002, the Third Respondent contravened s 298K(1)(a) of the Workplace Relations Act 1996 (Cth) by dismissing its employees Alick James Delaforce, Gregory Simon Forrest, Michael Robert McKenzie, Paul Francis McKenzie and Trevor Glen Moss for the reason, or for reasons which included the reason, proscribed by s 298L(1)(l), namely, that each of those persons, being members of the Australasian Meat Industry Employees’ Union which was seeking better industrial conditions, was dissatisfied with his conditions.

8.      In or about August and September 2002, the Third Respondent contravened s 298K(1)(a) of the Workplace Relations Act 1996 (Cth) by dismissing its employees Stephen Blackadder and Colin James Hambly for the reason, or for reasons which included the reason, proscribed by s 298L(1)(h), namely, that each of those persons was entitled to an order of an industrial body.

9.      In or about August and September 2002, the Third Respondent contravened s 298K(1)(a) of the Workplace Relations Act 1996 (Cth) by dismissing its employees Stephen Blackadder, Alick James Delaforce and Colin James Hambly for the reason, or for reasons which included the reason, proscribed by s 298L(1)(j), namely, that each of those persons had participated in a proceeding under an industrial law.

10.  In or about August and September 2002, the Third Respondent contravened s 298K(1)(a) of the Workplace Relations Act 1996 (Cth) by dismissing its employee Paul Francis McKenzie for the reason, or for reasons which included the reason, proscribed by s 298L(1)(j), namely, that he had proposed to participate in a proceeding under an industrial law.

11.  In or about August and September 2002, the Third Respondent contravened s 298K(1)(a) of the Workplace Relations Act 1996 (Cth) by dismissing its employees Stephen Blackadder and Alick James Delaforce for the reason, or for reasons which included the reason, proscribed by s 298L(1)(k), namely, that each of those persons had given evidence in a proceeding under an industrial law.

12.  In or about August and September 2002, the Third Respondent contravened s 298K(1)(a) of the Workplace Relations Act 1996 (Cth) by dismissing its employee Paul Francis McKenzie for the reason, or for reasons which included the reason, proscribed by s 298L(1)(k), namely, that he had proposed to give evidence in a proceeding under an industrial law.

13.  In or about August and September 2002, the fourth respondent contravened s 298K(1)(a) of the Workplace Relations Act 1996 (Cth) by dismissing its employee John Kevin Young for the reason, or for reasons which included the reason, proscribed by s 298L(1)(a), namely, that he was a member of the Australasian Meat Industry Employees’ Union.

14.  In or about August and September 2002, the fourth respondent contravened s 298K(1)(a) of the Workplace Relations Act 1996 (Cth) by dismissing its employee John Kevin Young for the reason, or for reasons which included the reason, proscribed by s 298L(1)(l), namely, that he, being a member of the Australasian Meat Industry Employees’ Union which was seeking better industrial conditions, was dissatisfied with his conditions.

15.  In or about September, October and November 2002, the First Respondent contravened s 298K(1)(d) of the Workplace Relations Act 1996 (Cth) by refusing to employ Terrence Anthony Brooks, Rodger Charles Campbell, Gregory Simon Forrest, Michael Robert McKenzie, Paul Francis McKenzie and John Kevin Young for the reason, or for reasons which included the reason, proscribed by s 298L(1)(a), namely, that each of those persons was a member of the Australasian Meat Industry Employees’ Union.

16.  In or about September, October and November 2002, the First Respondent contravened s 298K(1)(d) of the Workplace Relations Act 1996 (Cth) by refusing to employ Alick James Delaforce and Trevor Glen Moss for the reason, or for reasons which included the reason, proscribed by s 298L(1)(a), namely, that each of those persons was a delegate or member of the Australasian Meat Industry Employees’ Union.

17.  In or about September, October and November 2002, the second respondent contravened s 298K(1)(d) of the Workplace Relations Act 1996 (Cth) by refusing to employ Terrence Anthony Brooks, Rodger Charles Campbell, Gregory Simon Forrest, Michael Robert McKenzie, Paul Francis McKenzie and John Kevin Young for the reason, or for reasons which included the reason, proscribed by s 298L(1)(a), namely, that each of those persons was a member of the Australasian Meat Industry Employees’ Union.

18.  In or about September, October and November 2002, the second respondent contravened s 298K(1)(d) of the Workplace Relations Act 1996 (Cth) by refusing to employ Alick James Delaforce and Trevor Glen Moss for the reason, or for reasons which included the reason, proscribed by s 298L(1)(a), namely, that each of those persons was a delegate or member of the Australasian Meat Industry Employees’ Union.

19.  In or about September, October and November 2002, the fourth respondent contravened s 298K(1)(d) of the Workplace Relations Act 1996 (Cth) by refusing to employ Terrence Anthony Brooks, Rodger Charles Campbell, Gregory Simon Forrest, Michael Robert McKenzie, Paul Francis McKenzie and John Kevin Young for the reason, or for reasons which included the reason, proscribed by s 298L(1)(a), namely, that each of those persons was a member of the Australasian Meat Industry Employees’ Union.

20.  In or about September, October and November 2002, the fourth respondent contravened s 298K(1)(d) of the Workplace Relations Act 1996 (Cth) by refusing to employ Alick James Delaforce and Trevor Glen Moss for the reason, or for reasons which included the reason, proscribed by s 298L(1)(a), namely, that each of those persons was a delegate or member of the Australasian Meat Industry Employees’ Union.

21.  In or about September, October and November 2002, the First Respondent contravened s 298K(1)(d) of the Workplace Relations Act 1996 (Cth) by refusing to employ Stephen Blackadder, Colin James Hambly and Paul Gerard Swain for the reason, or for reasons which included the reason, proscribed by s 298L(1)(h), namely, that each of those persons was entitled to an order of an industrial body.

22.  In or about September, October and November 2002, the second respondent contravened s 298K(1)(d) of the Workplace Relations Act 1996 (Cth) by refusing to employ Stephen Blackadder, Colin James Hambly and Paul Gerard Swain for the reason, or for reasons which included the reason, proscribed by s 298L(1)(h), namely, that each of those persons was entitled to an order of an industrial body.

23.  In or about September, October and November 2002, the fourth respondent contravened s 298K(1)(d) of the Workplace Relations Act 1996 (Cth) by refusing to employ Stephen Blackadder, Colin James Hambly and Paul Gerard Swain for the reason, or for reasons which included the reason, proscribed by s 298L(1)(h), namely, that each of those persons was entitled to an order of an industrial body.

24.  In or about September, October and November 2002, the First Respondent contravened s 298K(1)(d) of the Workplace Relations Act 1996 (Cth) by refusing to employ Stephen Blackadder, Alick James Delaforce and Colin James Hambly for the reason, or for reasons which included the reason, proscribed by s 298L(1)(j), namely, that each of those persons had participated in a proceeding under an industrial law.

25.  In or about September, October and November 2002, the First Respondent contravened s 298K(1)(d) of the Workplace Relations Act 1996 (Cth) by refusing to employ Paul Francis McKenzie for the reason, or for reasons which included the reason, proscribed by s 298L(1)(j), namely, he had proposed to participate in a proceeding under an industrial law.

26.  In or about September, October and November 2002, the second respondent contravened s 298K(1)(d) of the Workplace Relations Act 1996 (Cth) by refusing to employ Stephen Blackadder, Alick James Delaforce and Colin James Hambly for the reason, or for reasons which included the reason, proscribed by s 298L(1)(j), namely, that each of those persons had participated in a proceeding under an industrial law.

27.  In or about September, October and November 2002, the second respondent contravened s 298K(1)(d) of the Workplace Relations Act 1996 (Cth) by refusing to employ Paul Francis McKenzie for the reason, or for reasons which included the reason, proscribed by s 298L(1)(j), namely, he had proposed to participate in a proceeding under an industrial law.

28.  In or about September, October and November 2002, the fourth respondent contravened s 298K(1)(d) of the Workplace Relations Act 1996 (Cth) by refusing to employ Stephen Blackadder, Alick James Delaforce and Colin James Hambly for the reason, or for reasons which included the reason, proscribed by s 298L(1)(j), namely, that each of those persons had participated in a proceeding under an industrial law.

29.  In or about September, October and November 2002, the fourth respondent contravened s 298K(1)(d) of the Workplace Relations Act 1996 (Cth) by refusing to employ Paul Francis McKenzie for the reason, or for reasons which included the reason, proscribed by s 298L(1)(j), namely, he had proposed to participate in a proceeding under an industrial law.

30.  In or about September, October and November 2002, the First Respondent contravened s 298K(1)(d) of the Workplace Relations Act 1996 (Cth) by refusing to employ Paul Gerard Swain for the reason, or for reasons which included the reason, proscribed by s 298L(1)(j), namely, that he had participated in a proceeding under an industrial law.

31.  In or about September, October and November 2002, the second respondent contravened s 298K(1)(d) of the Workplace Relations Act 1996 (Cth) by refusing to employ Paul Gerard Swain for the reason, or for reasons which included the reason, proscribed by s 298L(1)(j), namely, that he had participated in a proceeding under an industrial law.

32.  In or about September, October and November 2002, the fourth respondent contravened s 298K(1)(d) of the Workplace Relations Act 1996 (Cth) by refusing to employ Paul Gerard Swain for the reason, or for reasons which included the reason, proscribed by s 298L(1)(j), namely, that he had participated in a proceeding under an industrial law.

33.  In or about September, October and November 2002, the First Respondent contravened s 298K(1)(d) of the Workplace Relations Act 1996 (Cth) by refusing to employ Stephen Blackadder and Alick James Delaforce for the reason, or for reasons which included the reason, proscribed by s 298L(1)(k), namely, that each of those persons had given evidence in a proceeding under an industrial law.

34.  In or about September, October and November 2002, the second respondent contravened s 298K(1)(d) of the Workplace Relations Act 1996 (Cth) by refusing to employ Stephen Blackadder and Alick James Delaforce for the reason, or for reasons which included the reason, proscribed by s 298L(1)(k), namely, that each of those persons had given evidence in a proceeding under an industrial law.

35.  In or about September, October and November 2002, the fourth respondent contravened s 298K(1)(d) of the Workplace Relations Act 1996 (Cth) by refusing to employ Stephen Blackadder and Alick James Delaforce for the reason, or for reasons which included the reason, proscribed by s 298L(1)(k), namely, that each of those persons had given evidence in a proceeding under an industrial law.

36.  In or about September, October and November 2002, the First Respondent contravened s 298K(1)(d) of the Workplace Relations Act 1996 (Cth) by refusing to employ Paul Francis McKenzie for the reason, or for reasons which included the reason, proscribed by s 298L(1)(k), namely, that he had proposed to give evidence in a proceeding under an industrial law.

37.  In or about September, October and November 2002, the second respondent contravened s 298K(1)(d) of the Workplace Relations Act 1996 (Cth) by refusing to employ Paul Francis McKenzie for the reason, or for reasons which included the reason, proscribed by s 298L(1)(k), namely, that he had proposed to give evidence in a proceeding under an industrial law.

38.  In or about September, October and November 2002, the fourth respondent contravened s 298K(1)(d) of the Workplace Relations Act 1996 (Cth) by refusing to employ Paul Francis McKenzie for the reason, or for reasons which included the reason, proscribed by s 298L(1)(k), namely, that he had proposed to give evidence in a proceeding under an industrial law.

39.  In or about September, October and November 2002, the First Respondent contravened s 298K(1)(d) of the Workplace Relations Act 1996 (Cth) by refusing to employ Terrence Anthony Brooks, Rodger Charles Campbell, Alick James Delaforce, Gregory Simon Forrest, Michael Robert McKenzie, Paul Francis McKenzie, Trevor Glen Moss and John Kevin Young for the reason, or for reasons which included the reason, proscribed by s 298L(1)(l), namely, that each of those persons, being members of the Australasian Meat Industry Employees’ Union which was seeking better industrial conditions, was dissatisfied with his conditions.

40.  In or about September, October and November 2002, the second respondent contravened s 298K(1)(d) of the Workplace Relations Act 1996 (Cth) by refusing to employ Terrence Anthony Brooks, Rodger Charles Campbell, Alick James Delaforce, Gregory Simon Forrest, Michael Robert McKenzie, Paul Francis McKenzie, Trevor Glen Moss and John Kevin Young for the reason, or for reasons which included the reason, proscribed by s 298L(1)(l), namely, that each of those persons, being members of the Australasian Meat Industry Employees’ Union which was seeking better industrial conditions, was dissatisfied with his conditions.

41.  In or about September, October and November 2002, the fourth respondent contravened s 298K(1)(d) of the Workplace Relations Act 1996 (Cth) by refusing to employ Terrence Anthony Brooks, Rodger Charles Campbell, Alick James Delaforce, Gregory Simon Forrest, Michael Robert McKenzie, Paul Francis McKenzie, Trevor Glen Moss and John Kevin Young for the reason, or for reasons which included the reason, proscribed by s 298L(1)(l), namely, that each of those persons, being members of the Australasian Meat Industry Employees’ Union which was seeking better industrial conditions, was dissatisfied with his conditions.’

COMPENSATION

58                                          The contravening conduct on the part of the First, Third and Fourth Respondents of dismissing the 12 employees and contravening conduct on the part of the First, Second and Fourth Respondents in refusing to employ 11 of those individuals during the re‑engagement period, bears a very particular character. Part XA of the Act has these objects:

‘298A As well as the objects set out in section 3, this Part has these objects:

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

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

59                                          The Respondents, although they adopt an approach to the construction of s 298K(1) and s 298L(1) which has not found favour in the reasons [324] – [358], accept that the notions of discrimination and victimisation reflected in the objects provision, are central to the operation of Pt XA. The legislative expression of the objects of Pt XA in this regard is to be found in the prohibition upon nominated conduct by an employer carried out for a reason falling within the scope of s 298L(1). That statutory approach is the formulation that captures the prohibition upon conduct that discriminates against or victimises an employee. It is the conjunction of the conduct carried out for a prohibited reason (potentially among other reasons) that gives the s 298K(1) conduct its discriminatory character.

60                                          The consequence in this case of conduct of that character is that 12 individuals suffered a fracturing of the employment relationship, lost the right to derive a gross income from the relevant abattoir entity comprised of the components making up that remuneration and 11 of them were refused re‑engagement when the re‑engagement process commenced. It seems to me that there is an important point of distinction between the unlawful termination of an employment relationship on the one hand and a dismissal (coupled, in this case, with a refusal to re‑employ) for a prohibited purpose contemplated by s 298L on the other hand, which involves a contravention of the statutory formulation for securing the object of prohibiting discrimination against or prohibiting victimisation of an employee. The circumstances of this case are not simply one of deprivation of employment but rather dismissal and refusal to employ on grounds exhibiting a particular vice the legislature has sought to expressly prohibit.

61                                          Each of the 11 individuals, the subject of a refusal to employ, took a number of steps to secure work. They are identified at [379] of the reasons. The steps taken were these.

62                                          At [380] of the reasons, a schedule identifies the gross lost wages suffered by each individual apart from Michael Robert McKenzie. The position in relation to Michael McKenzie was inadvertently deleted from the matrix at [380] of the reasons. It is this.

63                                          The Applicant accepts the submission of the Respondents made at paragraph 21 of their written submissions that the calculation of Stephen Blackadder’s claim for economic loss is $3,763.58 with an additional superannuation component of $338.72 rather than the calculation reflected at [380]. The submission of the Respondents is made on the assumption of the period of compensation adopted in the reasons.

64                                          Accordingly, the economic loss flowing from the contravening conduct to be awarded to each individual is the amount set out at [380] of the reasons adjusted in the case of Stephen Blackadder to the amount set out at [63] herein and the amount in respect of Michael McKenzie is that set out at [62] herein.

65                                          Apart from the deprivation of earnings consequent upon the dismissal of the 12 employees and the refusal to employ 11 of them, the Applicant contends that each individual is entitled to compensation for the purposes of s 298U(c), (e) and (f) of the Act. The Applicant contends that these provisions, properly construed, are sufficiently broad that in a proper case they provide a foundation upon which a sum analogous to general damages might be identified as compensation for the disturbance, disruption, loss of opportunity and loss of secure employment occasioned by the termination of employment in breach of Pt XA of the Act (Australian Municipal Administrative Clerical Services Union v Greater Dandenong City Council (No. 2) [2001] FCA 1076 at [15] per Madgwick J). Such sum ought to be a ‘suitable and appropriately modest figure’ per Madgwick J at [15].

66                                          Section 298U is, relevantly, in these terms:

‘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:

…

(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;

…

(e) …any other orders that the Court thinks necessary to stop the conduct or remedy its effects;

(f) any other consequential orders.’

67                                          The question to be determined as a function of the statutory construct adopted by s 298U of the Act is whether, upon an examination of ‘all the circumstances of the case’, it is ‘appropriate’ to require a person to pay another, ‘compensation’, ‘in respect of conduct in contravention’ of Pt XA, ‘of such amount as the Court thinks appropriate’.

68                                          Analytically, the starting point is to examine the conduct in contravention of the Act. The second step is to determine those things that have occurred in the lives of the individuals affected by the conduct that bear at least some relation to the contravening conduct. The third step is to determine whether those things arise in respect of the contravening conduct. The fourth step is to determine whether it is appropriate in all the circumstances to make an order that the affected individuals be compensated for the relevant events. If so, the fifth step is to determine ‘such amount as the Court thinks appropriate’.

69                                          In this case, the conduct found in contravention of the Act is the dismissal of 12 individuals by, variously, the First, Third and Fourth Respondents and the refusal to employ 11 of those former employees by the First, Second and Fourth Respondents, in the circumstances reflected in the declarations. The conduct of dismissal and refusal to employ is to be viewed as two closely related points on the continuum of conduct effecting an enduring, final and operative dismissal for a prohibited reason as found. Most of the 12 individuals dismissed by the First, Third and Fourth Respondents had experienced a working relationship with the operator of the abattoir for a considerable period and all of them had been employed from either March or April 1998 under the management of Stuart Ramsey.

70                                          Upon termination, 11 of the former employees sought to re‑establish an employment relationship with the abattoir as the particular Ramsey entities quite rapidly recruited employees. Gregory Forrest gave evidence that on 20 September 2002 he presented for work and was allowed to enter the abattoir and observed and heard Stuart Ramsey addressing 80 to 90 workers at that time.

71                                          The circumstances confronting these individuals and the steps they took to secure work although reflected at [49] of these reasons bears some further examination. Colin Hambly, for example, attended the abattoir gate to seek work on the morning of 17 September 2002. He experienced an exchange with a security guard. Hambly asked whether he would be allowed to enter the abattoir for work 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 security guard told Hambly, ‘You will not be admitted today or any other day.’ On 18, 19 and 20 September 2002, Hambly presented himself at the gate of the abattoir and asked whether he would be allowed to enter the abattoir for work. He was told that he would not be admitted for work. Colin Hambly made further enquiries by telephone to seek work at the abattoir. The last enquiry was made on 13 February 2003 of Mr Marshall on behalf of management. Hambly was told that a form would be sent to him by which he might apply for work at the abattoir. No such form was sent to him.

72                                          Similarly, Delaforce attended the gate of the abattoir on 17 September 2002 and asked a security guard whether his name was on a list of workers to be allowed to enter the abattoir for work that day. Delaforce was told his name was not on the list. He was told by telephone that work would be available for him the following day. On that day, Delaforce placed a proposal before management to try and secure a general resumption of work for all workers not just himself. Delaforce did not approach the gate or the security guard on 19 or 20 September 2002 as he was in Sydney before the AIRC in relation to proceedings concerning the termination of the contracts of employment. On 28 November 2002 at 4.15pm, Delaforce received a letter from the abattoir dated 26 November 2002 offering him work on 27 November 2002. On 29 November 2002 at 2.30pm, Delaforce received a letter dated 28 November 2002 offering him work on 29 November 2002. On 29 November 2002 at 3.20pm, Delaforce attended the abattoir and spoke with Mr Marshall. Delaforce told Marshall that he was available for work. On 2 December 2002, Delaforce sent a letter to Marshall advising that he had accepted casual employment at another enterprise but that he would make himself available for work at the abattoir on Thursdays and Fridays. On 4 December 2002, Marshall told Delaforce that there would be work for him on the following day on the slaughter floor. Delaforce worked at the abattoir on 5 December 2002. No other offers of work were made to Delaforce by the abattoir.

73                                          In the case of Paul McKenzie, he approached the abattoir gate and made enquiries of the security guard every morning of the week commencing Monday, 16 September 2002. 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. McKenzie made telephone calls to Marshall to seek work, without success. McKenzie then sought work in other places. McKenzie was offered work on 26 November 2002 for the following day. McKenzie asked Marshall whether this offer of work would be ‘a continuing thing’ and Marshall told him that he was ‘being offered work only one day at this stage’.

74                                          Similarly, Moss made enquiries at the gate on 17, 19 and 20 September 2002 and was told by the security guard that his name was not on the list of those who were to be offered work.

75                                          Brooks presented on 17, 18, 19 and 20 September 2002.

76                                          Campbell presented himself to the security guard on 17, 18 and 20 September 2002.

77                                          Gregory Forrest presented himself to the security guard on the morning of 16 September 2002 at 6.00am and each morning during the course of the week.

78                                          Michael McKenzie made enquiries of Marshall on 13 September 2002 and was told his name was not on the list. He made further enquiries at the front gate of the abattoir each morning during the week commencing Monday, 16 September 2002 and was told each day that his name was not on the list. McKenzie worked as a boner for one day. On Monday, 23 September 2002, McKenzie presented for work at the gate and was told his name was not on the list. On the following Tuesday, Wednesday and Thursday, McKenzie was told the same thing. On Thursday, 26 September 2002, McKenzie told Marshall he would not present himself at the gate any longer to see if his name was on the list but would make a telephone call each morning instead. McKenzie made a telephone call to the abattoir every day for a week at approximately 6.00am and was told that his name was not on the list. On 2 December 2002, McKenzie received a letter from the abattoir dated 29 November 2002 which offered him employment ‘for tomorrow 29 November 2002’.

79                                          In the case of John Young, he was offered work on 16 September 2002 for the following day. John Young was not willing to work on that day having regard to the workers resolution and the attempt to secure a return to work more broadly. No work was offered on 18 or 19 September 2002. On 19 September 2002, Young handed a note of a request for the payment of entitlements to the guard at the abattoir gate. On 20 September 2002, Young was told that he was not on the list for work that day. No offers of employment from the abattoir were put to him after 16 September 2002 and he has not worked at the abattoir since.

80                                          Accordingly, each of the employees experienced to a greater or lesser degree, a situation of presenting at the gate to be told that the individual’s name was not on the list for work.

81                                          In order to secure work, the 11 individuals made enquiries and accepted employment at other enterprises in the manner indicated at [61]. Blackadder secured no alternative employment although the abattoir continued to pay him periodic payments until 8 December 2002. Brooks secured casual butchering work in September and October 2002 at Coffs Harbour and casual employment with NCML at Casino and regular work at NCML of 24 to 32 hours per week. Campbell was not able to work on 27 November 2002 at the abattoir being a day for which he was offered work, as he was seeking work in Mackay. Other work has been difficult to find. Michael McKenzie obtained work in late October 2002 as a casual support worker for disabled people which subsequently became permanent work. Similarly, Paul McKenzie obtained work as a support worker for disabled people on a casual basis and then on a permanent part time basis from mid 2003 onwards. Moss secured work as a boner at NCML at Casino as a casual worker from mid October 2002 to August 2003 at which time he was employed as a permanent employee. Forrest obtained work at the abattoir on 20 September 2002 but left the abattoir after an unpleasant conversation with Stuart Ramsey. Forrest derived earnings in the period to 30 June 2003 from Labourco Newcastle and Labourco Hunter. Hambly has not obtained work and has relied upon Centrelink payments. Delaforce obtained casual tiling work during the week of 19 and 20 September 2002 and work as a farm labourer until the middle of March 2003. Swain was placed on the payroll of Ramsey Packaging upon the AIRC reinstatement order of 12 June 2000 and continued to receive wages until August 2002. Thereafter, Swain was unemployed and received Centrelink payments. On 16 September 2002, John Young secured voluntary work for three days each week in support of an aged care program. Young also obtained two weeks work commencing in late October 2002 comprising voluntary work for a fencing contractor. He then worked as a casual employee of that contractor until 30 March 2003 and then secured regular work as a fencing contractor.

82                                          Susan Young obtained work as a casual cleaner from 15 October 2002, further work as a casual cleaner in the period 29 October 2002 to early December 2002 and since 31 July 2003 Young has obtained work of 8 to 10 hours per week as a housemaid at a Grafton hotel.

83                                          None of the former employees were challenged or cross-examined by the respondents.

84                                          The effect of this evidence is that employees who had experienced an association with the abattoir for some time and an employment relationship under the governance of Stuart Ramsey from either March or April 1998 also experienced dismissal from employment in circumstances the subject of the prohibition formulated to give effect to the important objects of Pt XA. The subsequent conduct reflected a degree of symmetry with the dismissal conduct because in respect of 11 of the individuals, the First, Second and Fourth Respondents then refused to employ them during the re‑engagement period.

85                                          Each individual attempted to secure a restoration of the employment relationship and those attempts involved individuals presenting themselves at the gate to a security guard at what was a reasonably long term and familiar workplace, to enquire whether, each day, they would be offered employment that day. Sometimes, offers of employment on a particular day were made. Sometimes, offers after the event were made. Each employee, subject to the continuing remuneration paid by the abattoir to Blackadder, was compelled to examine other opportunities for employment either on a casual or permanent basis, either within the industry within which that employee had developed skills or in other industries where those skills might not be deployed.

86                                          I accept that the circumstances of the dismissal and the process of re‑engagement of employees made it necessary for the 11 individuals to experience a process of presenting themselves at the workplace to determine whether they might that day or on any other day, secure work. I accept that the conduct of the individual of presenting himself to the process at the gate of the abattoir was something which occurred in respect of the contravening conduct and that it became necessary for each individual to seek out other opportunities for work. I accept that the dismissal conduct and the subsequent process of engagement with the abattoir by the 11 former employees in seeking a restoration of the employment relationship (and thus the experience of the refusal to employ), carried with it disruption and dislocation. The conjunction of the conduct bearing the character given to it by the Act and the events which occurred after the dismissal conduct and throughout the attempts to secure re‑engagement, give rise to, in the case of employees who had experienced a long term relationship with the abattoir, particular disruption and dislocation and a loss of secure employment which in all the circumstances renders it appropriate that the affected individuals be compensated.

87                                          In reaching the conclusion that it is appropriate in the circumstances of the case to order compensation, I recognise that compensation must be confined within reasonable limits and that restraint is required (Burazin v Blacktown City Guardian Pty Ltd (1996/1997) 142 ALR 144 at 156). In addition, not every termination of employment will attract compensation. In Burazin, their Honours Wilcox CJ, Von Doussa and Marshall JJ concluded that in the circumstances of that case, there were ‘unusual exacerbating circumstances that make it appropriate to include in the compensation an allowance for distress unnecessarily caused to Mrs Burazin’. In Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing & Allied Services Union of Australia v ACI Operations Pty Ltd [2006] FCA 122 at [11], Marshall J concluded that something more than the usual element of distress which accompanies most terminations must be demonstrated although the notion of ‘unusual and exacerbating circumstances’ is not necessarily the test. In Aitken v Construction, Mining, Energy, Timberyards, Sawmills and Woodworkers Union of Australia (Western Australian Branch) (1995) 63 IR 1 at 9, Lee J made a number of observations concerning those factors which might inform whether it is ‘appropriate in all the circumstances of the case to make an order requiring the employer to pay to the employee compensation of such amount as the court thinks appropriate’ in respect of a contravention of the relevant Division of the Industrial Relations Act 1998 (Cth) (‘the IR Act’) for the purposes of s 170EE of the IR Act. That particular legislation also set a cap upon the amount of the compensation that might be ordered. As a matter of general principle, Lee J considered that the court would have regard to ‘what is reasonable in the circumstances’ and would consider ‘the detriment occasioned to the employee by the employer’s contravention of the Act’ and the extent to which ‘it is reasonable to compensate the employee for such consequences’. In some cases, it may be appropriate to include in the measure of compensation a sum ‘sufficient to compensate an employee for mental distress or injured feelings caused by a harsh, unjust or unreasonable termination of employment’. Although the statutory context is, of course, a different one, notions of what might be ‘reasonable’ are relevantly analogous to notions of what is ‘appropriate’. A consideration of a compensable component of mental distress in the context of conduct characterised as an unjust or unreasonable termination of employment suggests such a consideration would be more so relevant in the circumstances of the prohibited purposes identified by the Workplace Relations Act 1996 (s 298L(1)) and the objects the Act seeks to achieve by force of the prohibition.

88                                          In determining that each employee ought to be paid compensation of $3,000 in the circumstances of the breach by the Greater Dandenong City Council of s 298K of the Act, Madgwick J made reference to Fryar v System Services Pty Ltd (1996) 137 ALR 321 at 330‑331 per Von Doussa J. The Respondents say that Fryar’s case is not an illustration of the exercise of such a jurisdiction. It seems to me that the reference by Madgwick J to Fryar’s case was simply intended to recognise that at least in the context of a severance payment which is a form of compensation for the loss of ‘non‑transferable credits and entitlements built up through length of service such as sick leave, long service leave and for inconvenience and hardship imposed by the termination of employment through no fault of the employee’ (Von Doussa J at 331, line 15), the inconvenience and hardship element ‘includes the disruption to the employee’s routine’ and other matters. In point of principle, compensation in respect of the contravention of the Act might also take account of disruption and dislocation.

89                                          Having regard to all of these matters, I propose to order compensation of $3,000 in the case of Blackadder as the dislocation and disruption occasioned to him is, it seems to me, less than that occasioned to other employees as Blackadder continued to receive remuneration until 8 December 2002 which presumably ameliorated the immediacy of his sense of dislocation, disruption and distress. In respect of all other employees, I propose to order compensation of $4,000 in respect of this component of the compensation.

The Amounts

90                                          Accordingly, the compensation to be paid in respect of each employee is as follows:

The Allocation

91                                          Since the refusal to employ 11 of the dismissed workers is properly to be seen as an integrated part of the dismissal conduct, the primary conduct attracting compensation ought to be the dismissal conduct by the First, Third, and Fourth Respondents. Accordingly, compensation payable to Brooks, Campbell, Susan Young, and Paul Swain ought to be paid by the First Respondent. Compensation payable to Blackadder, Delaforce, Forrest, Hambly, Michael McKenzie, Paul McKenzie, and Moss ought to be paid by the Third Respondent, and compensation in respect of John Young ought to be paid by the Fourth Respondent.

PENALTY

92                                          The First, Third, and Fourth Respondents have contravened the Act by engaging in the dismissal conduct. The First, Second, and Fourth respondents have contravened the Act by engaging in the refusal to employ conduct. The two classes of conduct are sufficiently inter-related or symmetrical that in assessing penalty, there are, in effect, 12 contraventions. At the time of those contraventions, the maximum penalty which the Court might impose in the case of a body corporate was $10,000 for each contravention (s 298U(a)(i)). In Constructions, Forestry, Mining, and Energy Union v Coal and Allied Operations Pty Ltd (1999) 94 IR 231 at [7]-[8], Branson J set out some of the considerations to be taken into account in assessing a penalty in respect of a contravention of Pt XA of the Act, in these terms:

‘The Act gives no explicit guidance to the circumstances in which an order imposing a penalty under s 298U of the Act will be appropriate or as to the circumstances in which a penalty of or near the maximum, or a lesser amount, may be called for. The Court is simply directed to consider what is appropriate in all the circumstances of the case.

The following matters, which are not intended to comprise an exhaustive list, seem to me to be considerations to which the Court may appropriately have regard in determining whether particular conduct calls for the imposition of a penalty, and assuming that it does, the amount of the penalty;

(a) The circumstances in which the relevant conduct took place (including whether the conduct was undertaken in deliberate defiance or disregard of the Act).

(b) Whether the respondent has previously been found to have engaged in conduct in contravention of Partt XA of the Act.

(c) When more than one contravention of Part XA is involved, whether the various contraventions are properly seen as distinct, or whether they arise out of the one course of conduct.

(d) The consequences of the conduct found to be in contravention of Part XA of the Act.

(e) The need, in the circumstances, for the protection of industrial freedom of the association.

  (f) The need, in the circumstances, for deterrence.’

93                                          In Finance Sector Union v The Commonwealth Bank of Australia [2005] FCA 1847 Merkel J at [24] observed that the above comments of her Honour have been cited and applied in relation to penalties under s 298U and other sections of the Act on many occasions (Australian Workers Union v Johnson Matthey (Aust) Inc [2000] FCA 728; Employment Advocate v National Union of Workers (2000) 99 IR 376 at 377 [5]; Automotive, Food, Engineering, Printing and Kindred Industries Union v DMG Industries Pty Ltd (2000) 102 IR 175 at 179–180 [10]; Australian Nursing Federation & Ors v Alcheringa Hostel Inc (2004) 136 FCR 530 at 543-544 [44]; and Alfred v Walter Construction Group Ltd [2005] FCA 497 at [10].

94                                          Having regard to the character and content of the contraventions, it cannot be contended that the contraventions are merely technical or trivial. Having regard to the findings contained in the reasons, and the findings extracted from the reasons and incorporated in these reasons, the conduct on the part of each of the respondents, as found, is serious. The maximum penalty which might be ordered constitutes $120,000. The circumstances in which the conduct took place and the consequences of the conduct have been already described. It should be recognised that the conduct strikes at the freedoms Pt XA seeks to protect. No evidence has been filed by the respondents other than the affidavit of Stuart Ramsey so as to raise any matters which might be taken into account in mitigation of a penalty. There is no evidence of any previous contravention on the part of any of the respondents. At paragraph [41] and [42] of Finance Sector Union v The Commonwealth Bank of Australia (supra) Merkel J made these observations:

‘41. However, the factor of greatest significance in relation to penalty in the present case is the need to impose a penalty which will constitute a general deterrent to others who may be disposed to engage in prescribed conduct of a similar kind. In Leahy at [23] I cited the observations of Finkelstein J in Australian Competition and Consumer Commission v ABB Transmission and Distribution Ltd [2001] ATPR 41-815 to the effect that, for a penalty to have the desired effect, it must be imposed at a meaningful level and therefore must be such that a potentially offending corporation will see the penalty as not worth the prospect of gain.

42. The WR Act strikes a balance between employers and their organisations on the one hand, and employees and their organisations on the other hand. Irrespective of whether the legislative pendulum has moved, or it is moving, away from or towards, enterprise bargaining agreements or individual contracts, the one legislative constant has been the protection conferred by the freedom of association provisions, or their statutory predecessors in Part XA.’

95                                          At [72], Merkel J said this:

‘It may be that breaches by unions and employers of industrial legislation from time to time have been accepted as part of the give and take of industrial disputation. However, in recent years, industrial legislation has increasingly codified and prescribed what is acceptable, and what is unacceptable, industrial conduct. The legislature has, over time, also moved to increase the penalties that may be imposed in respect of unlawful industrial conduct. In my view, any light-handed approach that might have been taken in the past to serious, wilful and ongoing breaches of the industrial laws should no longer be applicable.

96                                          The reference by Merkel J to Leahy at [41] of the reasons in Finance Sector Union v The Commonwealth Bank of Australia, is a reference to Australian Competition and Consumer Commission v Leahy Petroleum Pty Ltd (No 2) (2005) 215 ALR 281. In that case, the Court recognised the application of the ‘totality principle’ in assessing penalty. Rather than determine a separate penalty in respect of each contravention, it is appropriate to determine a total penalty concerning the course of conduct which has given rise to the field of contraventions. The total penalty ought not to exceed what in the aggregate is appropriate for the entire course of contravening conduct (Finance Sector Union v The Commonwealth Bank of Australia at [25] per Merkel J).

97                                          Stuart Ramsey contends that the South Grafton Abattoir as a ‘total enterprise’ is losing thousands of dollars per week and may shut shortly. Contextually, he says that these circumstances are consistent with a wholesale beef industry that is in troubled times and where markets are hard to service. Mr Ramsey has an expectation that abattoir closures will continue to occur as they have in the past. The financial accounts show that Ramsey Food Packaging Pty Ltd has incurred accumulated losses for the financial year ending 30 June 2006 of $55,254 in addition to accumulated losses for the 2005 financial year of $40, 975. Ramsey Food Packaging No 2 Pty Limited has incurred accumulated losses in the financial year ending 30 June 2006 of $123,640 in addition to accumulated losses incurred in the 2005 financial year of $177,456. Similarly, Ramsey Food Services Pty Limited has incurred accumulated losses of $46,824 and $50,461 for the financial years ending 30 June 2006 and 30 June 2005 respectively. The financial accounts for Ramsey Butchering Services Pty Limited do not include a profit and loss statement for the company. The submission put to the Court by the respondents is that the Court should have regard to the prevailing financial circumstances affecting the nominated respondents, the risk of closure of the abattoir, and the abattoir’s role in providing continuing employment with the result that the public interest is said to be served by imposing a penalty which might reflect both a deterrent upon conduct but which importantly is also facilitative in recognising the need for the continued operation of the abattoir.

98                                          These submissions might have been able to be developed in a meaningful and coherent way. However, the material is so brief and limited, it is difficult to usefully deal with the submission or the facts relied upon in support of it. By itself, the financial circumstances of the respondents cannot significantly mitigate the penalty. However, those circumstances, taken together with other considerations might usefully inform what is appropriate. Unfortunately, there simply is no sufficient factual foundation for a proper consideration of what is said to be relevant.

99                                          The same vice attends the submissions based upon the extent to which Mr Ramsey took legal advice. I propose to have regard to that fact as a fact. However, as I indicated at [19] the brevity with which the matter was expressed provides no real sense of the materiality of the advice, the scope of the advice, or the extent to which Mr Ramsey relied upon it.

100                                       Having regard to all these factors, I propose to discount the total maximum penalty of $120,000 by 30 per cent, thus resulting in a total penalty of $84,000.

101                                       As to the apportionment of that penalty, I accept the submission of the Applicant that there are notionally six corporations involved in the contravening conduct; three involved in the dismissal conduct; and three involved in the refusal to employ. Each corporation ought to bear one-sixth of the total penalty. Since the first and fourth respondents are participants in both classes of conduct, those corporations ought to bear two-sixths (that is one-third) each. The Second and Third Respondents should bear one-sixth each. In that event, the First Respondent would bear $28,000 as would the fourth respondent. The Second and Third Respondents would each bear $14,000.

SECTION 356(b)

102                                       The Applicant seeks an order that the penalty be paid to those affected by the conduct (that is, the twelve individuals). This approach is said to be consistent with what is sometimes described as the ‘usual order’ in the sense that it is not uncommon for an order to be made pursuant to s 356(b) of the Act in favour of an Applicant union as the ‘person or organisation applying for the penalty to enforce the award for the benefit of the union and it’s members’ (Gibbs v City of Altona (1988) 42 IR 255 at 262 per Gray J; Employees Federation of Australia v General Motors Holden Pty Ltd (1977) 32 FLR 100 at 111 - 114), or on the basis that ‘an order that the penalty be paid to the applicant [union] will tend to encourage the enforcement of awards’ (Electrical Trade Union of Australia v Sims Products Ltd C/A Bifco Batteries (1988) 42 IR 250; per Gray J; and Australian Federation of Air Pilots v Skywest Airlines Pty Ltd (1996) 70 IR 284 at 286 – 287 per Marshall J), or because the contravening conduct affects ‘the legitimate interests of the applicant and it’s members’ (CFMEU v Coal and Allied Operations Pty Ltd (No 2) (1999) 94 IR 231 at 233 – 234 per Branson J).

103                                       The qualification upon the exercise of the power is that such an order ought not to be made if it will result in a windfall gain. Such a windfall might arise in circumstances where the party receiving the benefit of the order has already received compensation pursuant to s 298U both as to any economic loss in respect of the contravention and any non-economic loss in the nature of general damages.

104                                       In Automotive, Food, Metals, Engineering, Printing and Kindred Industry Union v DMG Industries Pty Ltd (1999) 89 IR 360, the respondent undertook to pay the injured worker his lost wages and undertook to pay the Applicant union’s legal costs in a fixed amount. The Applicant union also sought an order that any penalty imposed upon the respondent be paid, consistent with the usual order, to the union. Marshall J made an order that monies be paid to the affected individuals (two employees) rather than the union since its costs would be met in reliance upon the undertaking. Nevertheless, the authority is cited as authority for the proposition that individuals affected by the conduct ought properly have the benefit of an order even in circumstances where an undertaking has been offered to pay lost wages, (that is, a degree of restitution has occurred).

105                                       The present difficulty is said to be this.

106                                       The Employment Advocate is a statutory office established by s 150 of the Act. However, the holder of the office has no legal personality independent of the Commonwealth of Australia. An order for the payment of the penalty to the Employment Advocate is therefore an order for the payment of the penalty to the Commonwealth. The next level of the problem is said to be that the Employment Advocate and staff are subject to the Financial Management and Accountability Act 1997 (Cth)(‘the FMA Act’) and the Constitution so far as the receipting and expenditure of public money is concerned (ss 81 and 83 of the Constitution). Money received (by order or otherwise) by the Employment Advocate and staff form part of the Consolidated Revenue Fund referred to in s 81 of the Constitution and can only be drawn from the Fund under an appropriation consistent with the arrangements set out in the FMA Act and the Financial Management and Accountability Regulations 1997.

107                                       As a result, any money that the Employment Advocate would wish to pay to the twelve individuals could only be made through an ‘act of grace’ payment pursuant to s 33 of the FMA Act out of monies appropriated by the Parliament for that purpose. The Employment Advocate has developed a policy of paying penalties obtained as Applicant to those parties directly affected by the contravening conduct. However, securing an act of grace payment consistent with a parliamentary appropriation is perceived by the Applicant to be a difficult and cumbersome process and accordingly the Court is requested to make an order that the penalties be paid directly to the twelve affected individuals consistent with s 356(b).

108                                       The difficulty with the submission is that the imposition of a penalty under the Act is designed fundamentally to serve the public interest in acting as a deterrent to the particular Respondents and others generally from engaging in conduct of the kind the subject of the findings. In circumstances where an order has been made for compensation for both economic loss and a non-economic component concerning the disturbance, dislocation and loss of secure employment suffered by the individuals, there seems to be no good policy reason why the individuals should additionally have the benefit of an order for the payment to them of the penalty. The contravening conduct of dismissal is a repudiation of employment compounded by the refusal to employ 11 of the dismissed employees. The loss flowing from that conduct is the subject of the compensation order. As an exercise of the power pursuant to s 356(b), I will make an order that the penalty imposed pursuant to s 298U of the Act be paid to the Employment Advocate. In making these observations I do not seek to express any view as to the merits or otherwise of an act of grace payment consistent with requirements of the FMA Act.

STATUTORY ARRANGEMENTS

109                                       Part XA of the Workplace Relations Act 1996 (Cth) in the form enacted at the date of commencement of these proceedings (comprising ss 298A to 298Z) was repealed by item 193 of Schedule 1 to the Workplace Relations Amendment (Work Choices) Act 2005 (Cth) (‘Work Choices Act’) which introduced into the Act a new Pt XA ‘Freedom of Association’ comprising eleven Divisions including a new Division 4 entitled ‘Conduct of employers’. Schedule 5 of the Workplace Relations Amendment (Work Choices) Act 2005 (Cth) had the additional effect of renumbering the provisions of the Workplace Relations Act 1996 (Cth). For example, the renumbered provision conferring power on the Federal Court to award penalties in relation to contraventions of the Freedom of Association provisions, is s 807. However, the effect of Regulation 4.53 of the Workplace Relations Regulations 2006 (Cth) taken in conjunction with the definition of the relevant terms in the legislation including the terms ‘pre-reform Act’ and ‘Reform Commencement’ is that despite the repeal of Pt XA of the Workplace Relations Act 1996 (Cth) by the Work Choices Act, an application made to the Federal Court under s 298T prior to 27 March 2006 ‘continues and is to be determined under section 298U’ of the Workplace Relations Act 1996 (Cth) as if the Act has not been amended. Accordingly, the source of the power to order a penalty or order compensation to be paid is s 298U of Pt XA as that Part stood immediately prior to the ‘Work Choices Act’ amendments.

110                                       As to the power conferred by s 356 of the Act (which is not a provision of Pt XA but Pt XIII) that section was amended by s 495 of the Financial Framework Legislation Amendment Act 2005 (Cth) so as to delete a reference to the term ‘Consolidated Revenue Fund’ in subparagraph (a) and substitute a reference to the term ‘the Commonwealth’. Item 213 of Schedule 1 to the Work Choices Act further amended s 356 to omit the term ‘monetary penalty’ and substitute the term ‘pecuniary penalty’. The corresponding renumbered provision of the Workplace Relations Act 1996 (Cth) (as amended) now provides in s 841:

‘A Court that imposes a pecuniary penalty under this Act (other than a penalty for an offence) may order that the penalty, or a part of the penalty, be paid:

(a)               The Commonwealth; or

(b)               To a particular organisation or person.’

111                                       In any event, it seems to me the power to order payment of the penalty or a part of the penalty to a particular organisation or person continues to arise by force of the definition of the terms, ‘Act’, ‘pre-reform Act’, and ‘Work Choices Act’, under s 356 for the purposes of these proceedings.

112                                       As indicated, I propose to make an order that the pecuniary penalty be paid to the Employment Advocate.

Associate:

Dated: 4 October 2006