FEDERAL COURT OF AUSTRALIA

Automotive, Foods, Metals, Engineering, Printing and Kindred Industries Union v Thornton Engineering Australia Pty Ltd [2008] FCA 1484

INDUSTRIAL LAW – whether employer dismissed employees for a prohibited reason or for reasons which included a prohibited reason – whether employer dismissed employees because of union membership – operation of reverse onus in Workplace Relations Act 1996 (Cth) s 298V – whether applicants bore onus to prove respondent knew applicants were union members – respondent argued positive reasons for dismissal – alternative argument that reasons did not include prohibited reasons – evidence of hostile attitude to union – attempt to thwart increased union activity in workplace

INDUSTRIAL LAW – whether employer dismissed employees for a prohibited reason or for reasons which included a prohibited reason – whether employer dismissed employees because there were members of union seeking better industrial conditions and were dissatisfied with conditions – respondent argued positive reasons for dismissal – alternative argument that reasons did not include prohibited reasons – argument that conditions must be same – evidence that union and employees attempted to have union representation in the negotiation of a collective agreement – whether representation by a union in collective agreement negotiations is an industrial condition – whether subjective knowledge of dissatisfaction required – whether subjective knowledge condition precedent to operation of reverse onus in Workplace Relations Act 1996 (Cth) s 298V

PRACTICE AND PROCEDURE – onus of proof – Workplace Relations Act 1996 (Cth) s 298V – whether factual foundation must be established by applicants prior to operation

WORDS AND PHRASES – “industrial conditions”

Workplace Relations Act 1996 (Cth) ss 298K, 298L(1)(a), 298L(1)(l), 298T, 298U, 298V

Federated Clerks Union of Australia v Victorian Employers Federation (1984) 154 CLR 472 cited

Heidt v Chrysler Australia Ltd (1976) 13 ALR 365 cited

Jones v Dunkel (1959) 101 CLR 298 applied

Webb v Nationwide News Pty Ltd (1985)10 IR 252 applied

AUTOMOTIVE, FOODS, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION, ANDREW PETER COON, JASON GRAEME KEMMIS and SHAYNE RODNEY TAYLOR v THORNTON ENGINEERING AUSTRALIA PTY LTD

VID 8 of 2006

NORTH J

6 OCtober 2008

MELBOURNE

THE COURT DECLARES THAT:

1.                  The respondent, Thornton Engineering Australia Pty Ltd, contravened s 298K(1)(a) of the Workplace Relations Act 1996 (Cth) (the Act) by dismissing the second applicant, Andrew Peter Coon, on 21 December 2005 for reasons including the reason stated in s 298L(1)(a), namely, that Andrew Peter Coon was a member of the first applicant, the Automotive, Foods, Metals, Engineering, Printing and Kindred Industries Union.

2.                  The respondent, Thornton Engineering Australia Pty Ltd, contravened s 298K(1)(a) of the Act by dismissing the third applicant, Jason Graeme Kemmis, on 12 December 2005 for reasons including the reason stated in s 298L(1)(a), namely, that Jason Graeme Kemmis was a member of the first applicant, the Automotive, Foods, Metals, Engineering, Printing and Kindred Industries Union.

3.                  The respondent, Thornton Engineering Australia Pty Ltd, contravened s 298K(1)(a) of the Act by dismissing the second applicant, Andrew Peter Coon, on 21 December 2005 for reasons including the reason stated in s 298L(1)(l), namely, that the first applicant, the Automotive, Foods, Metals, Engineering, Printing and Kindred Industries Union, was seeking better industrial conditions and Andrew Peter Coon was dissatisfied with his conditions.

4.                  The respondent, Thornton Engineering Australia Pty Ltd, contravened s 298K(1)(a) of the Act by dismissing the third applicant, Jason Graeme Kemmis, on 12 December 2005 for reasons including the reason stated in s 298L(1)(l), namely, that the first applicant, the Automotive, Foods, Metals, Engineering, Printing and Kindred Industries Union, was seeking better industrial conditions and Jason Graeme Kemmis was dissatisfied with his conditions.

5.                  The respondent, Thornton Engineering Australia Pty Ltd, contravened s 298K(1)(a) of the Act by dismissing the fourth applicant, Shayne Rodney Taylor, on 21 December 2005 for reasons including the reason stated in s 298L(1)(l) namely that the first applicant, the Automotive, Foods, Metals, Engineering, Printing and Kindred Industries Union, was seeking better industrial conditions and Shayne Rodney Taylor was dissatisfied with his conditions.

AND THE COURT ORDERS THAT:

6.         The further hearing of the application is adjourned until 10.15 a.m. on a date to be fixed.

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

REASONS FOR JUDGMENT

1                     Before the Court is an application for the imposition of penalties and other orders under s 298U of the Workplace Relations Act 1996 (Cth) (the Act) against the respondent, Thornton Engineering Australia Pty Ltd, for contraventions of s 298K(1)(a) of the Act.  The section relevantly provides that an employer must not dismiss an employee for a prohibited reason or for reasons which include a prohibited reason.  Section 298L(1) provides that conduct is for a prohibited reason if it is carried out because an employee:

(a)        is … [a] member of an industrial association; or

…

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

2                     These proceedings were commenced prior to the amendments to the Act made by the Workplace Relations Amendment (Work Choices) Act 2005 (Cth).  Despite these amendments, pursuant to reg 7.4.53 of the Workplace Relations Regulations 2006 (Cth) the application is to be determined under s 298U of the Act as if it had not been amended.

3                     The first applicant, the Automotive, Foods, Metals, Engineering, Printing and Kindred Industries Union (the union) is an organisation of employees registered under the Act, and is entitled to bring this application (s 298T). 

4                     The second applicant (Mr Coon) is a boilermaker who was employed by the respondent on 20 September 2005 and was dismissed on 21 December 2005. 

5                     The third applicant (Mr Kemmis) is a welder who was employed by the respondent on 20 October 2005 and was dismissed on 12 December 2005. 

6                     The fourth applicant (Mr Taylor) is a welder who was employed by the respondent on 26 September 2005 and was dismissed on 21 December 2005.  Together the second to fourth applicants inclusive are referred to in these reasons as “the applicant employees”. 

7                     The respondent is a company which conducts a steel fabrication business in Geelong.  The business was founded by Mr Andrew Thornton about 30 years ago.  It originally only operated in Penshurst, Victoria.  Then, in about 1999, it built a large factory in Geelong.  By 2005, Mr David Thornton (Mr Thornton), the son of Mr Andrew Thornton, had taken over the day to day running of the business and was the sole director of the respondent.  The staff who assisted him and who played roles in the events relevant to this case are Mr Thalib Sathaar, the Operations Manager, Mr Craig Kelly, the Fabrication Manager, Mr Ken Hewitt, the beamline day shift leading hand, and Mr Matt Coon, the beamline afternoon shift leading hand.

8                     From about 2001, Mr Brendan Whelan was the organiser employed by the union responsible for the respondent’s workplace in Geelong.  There was a mutual antipathy and distrust between Mr Whelan and Mr Thornton.  The relations between the respondent and the union will be detailed later in these reasons. 

9                     In about 2005, the respondent installed a sophisticated steel fabrication production line in the Geelong factory.  This was called the beamline.  Initially it was operated by a day shift only.  In about September 2005, the respondent introduced an afternoon shift for the beamline.  The afternoon shift was also referred to as the night shift at times by the parties, but both refer to the identical shift.  As a result of the introduction of the beamline, the respondent’s staffing levels increased.  The Geelong site also had an older facility called the Plate Shop.  Mr Coon worked there when he started work with the respondent.

10                  During this period in late 2005, Mr Whelan focused his attention on attempting to negotiate a collective agreement with the respondent in response to the changes in workplace relations legislation known as WorkChoices proposed by the government.  Mr Whelan began to hold meetings with employees of the respondent throughout November and December, at some stages once a week.  As will be detailed later in these reasons, this build up of union activity at the respondent culminated in large union meetings on the site of the respondent on 9, 16 and 21 December 2005.

11                  The applicants claim that the applicant employees were dismissed for reasons which included, firstly, that they were union members (s 298L(1)(a)) and, secondly, that the union was seeking better conditions and the applicant employees were dissatisfied with their conditions (s 298L(1)(l)). 

12                  The parties agreed that the Court would first determine whether the respondent had contravened the Act and, later, if necessary, determine what orders, if any, should be made if contraventions were found to have been committed.  This judgment addresses the first of those issues. 

The Contentions of the parties

13                  In order to prove their case, the applicants relied on s 298V of the Act which relevantly provides: 

If:

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

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

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

14                  The applicants argued that section 298V operated in this case to establish that the respondent dismissed the applicant employees for reasons which included, on the one hand, that they were union members, and, on the other hand, that the union was seeking better conditions and they were dissatisfied with their conditions.  Unless the respondent proved that these reasons played no part in the decisions to dismiss the applicant employees, the presumption would have the effect of establishing the applicants’ case that the respondent had contravened the Act.

15                  The respondent sought to rebut these presumptions by establishing positive cases that the reasons for dismissing Mr Kemmis and Mr Taylor were that there was a general reduction in the workforce as the result of the closure of the afternoon shift on the beamline and the loss of a large job being undertaken for Technip Oceana Pty Ltd (Technip), and the reason for the dismissal of Mr Coon was that he proved unsuitable for a job as a quality inspector.  It was implicit in the respondent’s positive case that the reasons proposed were the only reasons for the dismissals.

16                  Alternatively, in relation to the case alleging dismissal for reasons including union membership, the respondent contended that there could be no contravention if the respondent did not know that the applicant employees were union members.  It argued that the onus of proof of that knowledge lay on the applicants because s 298V only gave rise to a presumption about the reason for the dismissal and not a presumption about the respondent’s knowledge of union membership.  It contended that the applicants failed to prove on the balance of probabilities that the respondent knew that the applicant employees were union members, and hence the respondent was not shown to have dismissed them for reasons which included that reason.

17                  In a further alternative argument, the respondent submitted that, even if the onus was on the respondent to rebut the presumption, on the whole of the evidence, the respondent demonstrated on the balance of probabilities that the dismissals were not for reasons which included that the applicant employees were union members. 

18                  Then, in relation to the case alleging dismissal for reasons including that the applicant employees were dissatisfied with their conditions, the respondent contended that s 298L(1)(l) required that there be an identity between the conditions sought by the union and the conditions about which each employee was dissatisfied.  The respondent contended that the onus of proof of the identity of the conditions lay upon the applicants because, again, the presumption applies to the reason for the conduct not to the factual foundation upon which the presumption operates.  The respondent submitted that the applicants did not establish that the conditions sought by the union were the same as those about which each applicant employee was dissatisfied and, hence, the presumption did not operate.  Alternatively, even if the onus was on the respondent, it had established by the positive denials of Mr Thornton that the respondent did not dismiss the applicant employees for reasons which included their dissatisfaction with conditions.  Each of these arguments will now be examined. 

The Respondent’s positive case – Mr Kemmis and Mr Taylor

19                  The first question is whether the respondent has established a positive case that the dismissals of Mr Kemmis and Mr Taylor were for the reason that the respondent closed down the afternoon shift on the beamline, and as a result of the loss of the Technip job. 

20                  The high point of this case for the respondent was in the evidence of Mr Thornton in examination in chief on 2 October 2007, given with leave in order to supplement his affidavit sworn on 27 July 2006.  Mr Thornton drew up his affidavit without legal assistance.  At the trial Mr Rinaldi of counsel appeared for the respondent and sought leave to supplement the affidavit.  In these circumstances the respondent was given leave to address some oral evidence in chief.  In that evidence Mr Thornton explained that the respondent introduced the beamline in July 2005.  This involved a large investment for the respondent and a major increase in staffing.  After three months, in September 2005, the respondent introduced an extra shift on the beamline.  However, the production level was so low, and the quality so deficient that it was decided to close down the afternoon shift.  The staff level on the afternoon shift was reduced through December 2005.  The shift was closed down by about January 2006.  Mr Thornton described the timing as follows:

So we reduced it and reduced it and we sort of effectively scaled the night shift back from full operation in the end of November to completely eliminated it in – by January, I believe, or about that.

21                  Mr Thornton said that the staffing was reduced by 15 people.  Mr Kemmis and Mr Taylor, who worked on the afternoon shift, were dismissed as part of this overall staff reduction.  They were selected because they were still in their three month trial period.  Mr Thornton made the decision to dismiss, and he told Mr Sathaar to implement this decision by indicating to Mr Sathaar that the trial periods were not to be extended.  This was, Mr Thornton said, the only reason for the dismissals of Mr Kemmis and Mr Taylor. 

22                  It became clear during cross examination that Mr Thornton could not sustain the case that the respondent had already decided to close down the beamline afternoon shift at the time when Mr Kemmis and Mr Taylor were dismissed on 12 and 21 December 2005, respectively.  For instance, Mr Thornton accepted that he referred to the afternoon shift as operating at the time he swore his affidavit on 27 July 2006.  A document was tendered by the respondent which showed, among other things, who was employed on the afternoon shift on the beamline and the times during which they were so employed.  The document was compiled by Mr Thornton to show that the employment of both union and non-union employees was terminated in this period.  Significantly for the present argument, the document showed that people were employed on the afternoon shift on the beamline at least until the end of June 2006.  Eventually Mr Thornton conceded that he did not know exactly when the afternoon shift was closed down.  The respondent has not established that Mr Kemmis and Mr Taylor were dismissed at the time the afternoon shift on the beamline was eliminated.   

23                  Then, Mr Thornton modified his argument by saying that there had been a process of reduction in the staffing levels on the afternoon shift on the beamline in response to poor quality and low output and that Mr Kemmis and Mr Taylor were dismissed as part of that process of reduction, rather than as a result of a decision to end the afternoon shift on the beamline.

24                  This argument required the respondent to demonstrate that the process of reduction of staff had been in operation on 12 and 21 December when Mr Kemmis and Mr Taylor were respectively dismissed.  However, the evidence did not support that contention.  Rather, it suggested that the reduction commenced in about March 2006.  For instance, on 1 August 2006, Mr Thornton wrote to his bank to explain the problems encountered in the previous financial year and how they had been addressed for the future.  He wrote:

Overstaffing: if you look at the unadjusted profits from Oct 05- March 06 we have a profit of $1,012,000 plus $540,000 deprecation and machine payments.  At this time we thought we were making so much money that despite the errors and what in hindsight was overstaffing we were clearly so efficient that we could absorb these items.  It is only at the end of March 06 that we realised we were not so clever and that most of the work we had to complete in April 06 had already been invoiced.  It didn’t take long to find out where the problem was; we had night shifts producing almost nothing, union activity creeping in, moral [sic] at rock bottom, weekend overtime at extreme levels and almost completely uncontrolled employment by managers.

…

… In March 06 when we realised April 06 would be bad we spent 3 straight weeks analysing every process in the line from sales to accounts, quality checks, procurement, client liaison, quality control documentation, production planning etc.

…

This was then used to form an organisational structure.  We then identified exactly what staff we needed and who they would be, wrote revised job scopes, rolled out the system and reduced unneeded staff and overtime.  Almost immediately moral [sic] lifted, errors stopped and wages dropped.

(Emphasis added.)

25                  The company records relating to staff levels also did not support the respondent’s case.  It is noteworthy that the respondent did not rely on company records of employment levels as part of its own case initially.  A payroll record was produced by the respondent’s accounts officer on Mr Thornton’s instructions but only in response to a notice to produce served by the applicants.  Ultimately it was tendered by the respondent in re-examination of Mr Thornton.  The value of the document as proof of the employment numbers at particular times depended on an understanding of the various codes used to categorise the employees listed in the document.  Mr Thornton was asked to explain the meaning of the codes and, in a number of instances which involved significant numbers of employees, he was unable to say whether the categories related to the beamline or not.  Any utilisation of the document in these circumstances would be no more than guess work.  Further, it was apparent that a number of pages were missing from the document.  If anything could been gleaned from the document it would be that whilst there was a dip in the size of the workforce about the time when Mr Kemmis and Mr Taylor were dismissed, there was a return to the previous numbers within a few weeks. 

26                  A similar pattern might be shown from a spread sheet attached to the letter sent by Mr Thornton to the bank.  The spread sheet showed that the wages for productive staff, as distinct from administrative staff, increased significantly in February and March 2006.  No analysis was made of these figures in the oral evidence and it is evident that the wages figures cover several different sites operated by the respondent.  They are not a reliable indicator of the beamline workforce size or any variations of it. 

27                  On 4 March 2006, the respondent placed an advertisement in the Geelong Advertiser seeking experienced boilermakers and welders for immediate start at the Geelong plant.  When it was put to Mr Thornton in cross examination that advertising for new employees was not consistent with reducing staff levels he said:

Sometimes we run ads, you know, once you have a lot of people getting put off, it gets very demoralising.  People get very – think they’re on a downward spiral.  So sometimes we’ll advertise to make people feel a bit better as well – that we’re not, you know, getting smaller and smaller to the point of not being there.

This explanation is improbable and is not accepted.  The placing of the advertisement is consistent with other evidence that the respondent had not embarked on a reduction in the staff on the afternoon shift on the beamline until later in March 2006. 

28                  Further, there was other evidence which showed that new staff were engaged after Mr Kemmis and Mr Taylor were dismissed.  Mr Thornton prepared a list of persons who were terminated between July 2005 and April 2006 and which showed the starting and finishing dates of their employment.  It shows that six such people, Anand, Brown, Hewitt, Jacka, Metri and Owens, commenced employment on the beamline between 17 January 2006 and 16 March 2006.  The list probably does not show all the people who commenced employment in that period because it was prepared only to show those people whose employment ended before the end of April 2006.

29                  The evidence does not therefore establish that Mr Taylor and Mr Kemmis were dismissed in the process of a reduction of staff levels on the afternoon shift on the beamline as part of a winding down leading to the elimination of that shift.  But even if that were accepted, the respondent faced a further obstacle in establishing a positive case.

30                  Some employees who commenced employment at about the same time as Mr Taylor and Mr Kemmis retained their jobs after Mr Taylor and Mr Kemmis were dismissed.  Examples include Devine, Leder, and Mark Ryan who worked with Mr Taylor.  If Mr Kemmis and Mr Taylor were dismissed in December 2005 as part of a reduction in the afternoon shift on the beamline then they had to be selected for dismissal from a larger group who were, like them, still in their trial period.  The need for a general reduction in staff could not completely explain the choice of these particular individuals.  This issue was put to Mr Thornton by the Court and the following exchange occurred:

You then have a problem to address, big group, small amount to remain and you have got to work out a basis on which you select the smaller group that is going to go and I wonder if you actually had a formula, had a system or whether you just had a chat with Mr  ..... ?‑‑‑We would take to the, well, I guess anyone that is on a trial or a temporary basis ‑ ‑ ‑ 

Well, they are all on trial?‑‑‑Yes.  Well, I guess that is our first thing to try and make sure we don’t get guys that have been there for 18 months, that is our number one thing.  Number two is we try and work out where we can move people to and we did move as many as we could to the day shift and shuffled people around as much as we possibly can but the problem was we were losing money and we were over staffed so we had to do something very fast.

I am accepting that but that leaves us with the problem, and I am trying to understand how you addressed it because we seem to have got to a position where you have let’s say for arguments sake two, four, six, eight employees.  You have got to downsize to get let’s say to four?‑‑‑Yes.

Now, how do you choose the four to go when they all started at the same time, they are all on trial?  I mean did you have a process whereby you made that selection?‑‑‑I guess they would take, there is a team leader there like a foreman working with them and he would say which ones he thought were the best people for the job and fitting in the best.

Well, did you do that?‑‑‑Yes, I believe so, yes.

And who was the team leader involved, for instance, in this grouping?‑‑‑I think probably what they would have done is gone back, there was a guy David Barry who worked there for a while as a foreman and then Mr Hewitt for a short period so he would have probably given us some feedback on who was good and who was not fitting in as well.

And who had the discussion or would have had the discussion with the foreman, you or Mr Sathaar?‑‑‑I would have been involved in that, yes.

Well, do you recall having those discussions?‑‑‑I might sound a bit silly but I think I have said it before as well.  There was a large amount of things going on in our company at that time.  Like I say not just this problem, I had quality problems and bank problems and supply problems and pretty much all the problems you can possibly have and we were perhaps a little less systematic and a little less then we probably should be, it could have been more of a case you can only have eight blokes on that shift because we are losing money and that wouldn’t be an awful lot of coaching through that and analysis beyond who do you want who don’t you want.

31                  It was clear from the way in which Mr Thornton responded that he was not recalling an actual process of selection which had been undertaken but rather constructing a possible way in which the decision could have been made.  The evidence was not a convincing account of a selection process which had actually occurred.  It did not establish that the process referred to by Mr Thornton had been undertaken.

32                  For the same reason the evidence did not establish a positive case sufficient to rebut the presumption that the loss of the Technip job was the reason for the dismissal of Mr Kemmis and Mr Taylor.  The Technip job was expected to continue for 6 months from October 2005.  The job involved staff of the respondent working 140 – 180 hours per week in October, November, and December 2005.  Mr Thornton said that the job was cancelled unexpectedly in early December 2005, even though work continued to be performed until the end of December.  Mr Thornton originally stated in his affidavit sworn on 27 July 2006 that the cancellation of the Technip job meant that staff would need to be relocated or made redundant. However under cross-examination he admitted the loss of the Technip job was not a major consideration regarding staffing because the respondent was able to absorb that degree of labour fluctuation.  Even if loss of the Technip job required a reduction in staff levels, there was no convincing explanation of the way in which Mr Kemmis and Mr Taylor were selected as the individuals to be dismissed to establish a positive case, or alternatively to rebut the presumption which arose under s 298V.     

The Respondent’s positive case – Mr Coon

33                  The next question is whether the respondent has established a positive case that Mr Coon was dismissed for the reason that he was unsuitable as a quality inspector. 

34                  A few weeks after starting work with the respondent as a boilermaker Mr Coon injured his hand in a lawn mower accident at home.  Shortly before he was due to return to work in December the respondent was having problems with the quality of work being produced at the plant.  Mr Sathaar had formed a positive view of Mr Coon’s capacity as a boilermaker and as a cooperative employee.  He recommended to Mr Thornton that the respondent employ Mr Coon on his return to work to inspect the quality of the work being produced.  In October Mr Coon had lodged a WorkCover claim with the respondent but which related to a hearing loss resulting from a previous employment.  The claim was made on legal advice and Mr Coon withdrew it after contact with the respondent because he did not think it was right to make the claim on his present employer. 

35                  Mr Coon accepted the offer to return to work as a quality inspector and began that work on 9 December 2005.  This was the day on which the union held a meeting on site.  The details of that meeting will be described later in these reasons.  Mr Coon’s task on that day was to check steel beams lying in the yard ready for dispatch to a customer in Mackay. 

36                  Mr Thornton explained the situation as he perceived it as follows:

I had our first big job that had gone through a $5 million investment that was petering, was neither coming out, and to the right speed, and to the extent it did come out, it was mostly wrong, so I had a client up on site at Mackay saying, “We’ve given you this job, it’s your first big trial, and you’re bloody not delivering the steel.”  I’ve got a new factory that’s not making any money at all.  I had a bank manager on the phone that day saying, “You guys better sort this out, you’d better sort it out fast.”  I had suppliers that wouldn’t deliver steel to us any more to continue operation, and I had this client in Mackay withholding money from us … I was extremely anxious, to try and make this investment work. 

(Emphasis added.)

37                  As to Mr Coon’s role, Mr Thornton said:

I’d just come off the phone from a client saying to us where’s his steel.  I spent most of the day looking at, saying is that steel getting checked before it goes on the truck because the temptation was to just put it on the truck.  And Mr Coon was out checking and I was continually being reassured by Mr Sathaar that Mr Coon would be fine and he’ll certainly be able to check the steel.

Then we went out and Mr Coon was missing all day, he never seemed to actually be at the job, even though this was his – I believe either his first day back or one of his first couple of days back.  He was never actually in the area doing the checking, and the truck wasn’t being loaded and the truck driver I believe was on our back and the client was on our back, and in frustration and desperation we went out and started checking it ourselves.  And then we found errors, so then we were really in a bit of a – then we knew the steel that had been checked was still incorrect, so Mr Coon hadn’t really checked it anyway and that we had to get a truck loaded. 

38                  Mr Thornton said that he did the checking together with his father and with Mr Sathaar in the early afternoon.  They were in the yard for about an hour.  This coincided with the time in which the union meeting was held.  The meeting was held within view of the yard where Mr Thornton undertook the checking.  Mr Thornton said that Mr Coon failed to complete the work after the union meeting although he had undertaken to return for that purpose. 

39                  Mr Thornton said that he had been “blatantly let down”, and “in your face let down” by Mr Coon because he had been persuaded to give Mr Coon the job to help him financially over the period of his injury and despite the fact that Mr Coon had made an unjustified WorkCover claim against the respondent.  The reason for dismissing him ahead of the others who had started at the same time was that: 

[W]e were frustrated that this guy we’d just given a chance has then sort of effectively laughed in our face.

40                  Mr Thornton directed Mr Sathaar to dismiss Mr Coon on the basis that Mr Coon’s trial period had not ended and it should not be extended. 

41                  The evidence of Mr Coon about his work on the 9 December 2005 as a quality inspector contradicted the evidence of Mr Thornton on central points.  He said that he started work at 7.00 a.m.  His work required him to go through the plate shop and not remain in the yard for the whole time.  The union meeting occurred in the time between the day and afternoon shifts.  Mr Coon spoke at the meeting but returned to the yard and continued checking the loads to be dispatched after the meeting.  In his reply affidavit sworn on 3 May 2007, Mr Coon deposed that Mr Sathaar had said to him on 9 December 2005 words to the following effect:

The work you’ve done today is great.  It’s saved us a lot of freight expenses for reworks.  If that work got to Mackay and had to come back, that would cost us a lot of money.

42                  Mr Sathaar was Mr Coon’s point of contact in relation to his position as quality inspector for the respondent.  When he was dismissed on 21 December 2005 by Mr Sathaar the reason given was that the quality inspection work was to be outsourced.  Then Mr Sathaar said to Mr Coon:

We have got that Monodelphous job in Hay Point in Mckay [sic].  I’m thinking about sending a couple of people up to do some quality control work and there may be a position for you.

43                  The separation certificate provided to Mr Coon stated the reason for termination as “shortage of work or redundancy”. 

44                  The evidence of Mr Thornton exhibited his strong sense of betrayal by, and disappointment with, Mr Coon at the time.  This emerges from the passages extracted earlier in these reasons and was evident in the way in which Mr Thornton gave this part of his evidence.  Had the reason for such a strong reaction been Mr Coon’s failure to perform satisfactorily on 9 December, it is unlikely that Mr Thornton would have waited until 21 December to dismiss him, and would not have allowed him to do the same type of work on the days following 9 December. 

45                  And, again, if Mr Coon failed to do the work properly on 9 December 2005 when Mr Thornton was extremely anxious to satisfy the customer, it is likely that Mr Thornton would have complained to him.  No such complaint was made.

46                  On the contrary, the evidence which I accept is that Mr Sathaar, to whom Mr Coon answered, praised Mr Coon for his work on 9 December 2005.  Mr Sathaar is still employed by the respondent and was available to give evidence.  He was not called.  Consequently, the Court is able more confidently to conclude that the evidence of Mr Sathaar would not have assisted the respondent on this question and to accept the evidence of Mr Coon that he was praised for his work on the day:  Jones v Dunkel (1959) 101 CLR 298 (Jones v Dunkel) 

47                  Then, the evidence of the nature of the failings in Mr Coon’s work was unsatisfactory and cast doubt on the accusation that Mr Coon had failed to fulfil his duties.  There were a number of allegations made by Mr Thornton against Mr Coon which were so extravagant or so lacking in detail as to make them improbable.  There were sufficient occasions of such evidence as to indicate that Mr Thornton’s accusations against Mr Coon should not be relied upon.

48                  For instance, in [6] of the respondent’s contentions filed on 10 July 2007 prior to the hearing and authored by Mr Thornton prior to the respondent securing legal representation, it was said:

The second applicant was placed on a dimensional checking role which he performed very poorly and resulted in the respondent shipping incorrect work and receiving rectification costs of approx $250,000.

The respondent was served with a notice to produce which sought production of any documents relating to these costs.  The respondent produced a credit note dated 30 June 2007, for $50,000 in favour of Monodelphous Pty Ltd.  This represented the amount accepted by the respondent for rectification costs of the dispatch of steel on 9 December 2005.  When this document was put to Mr Thornton in cross examination he said that he did not mean the contentions to say that Mr Coon was responsible for the whole $250,000 rectification costs.  He said that the paragraph was just poorly worded and was prepared by him without assistance.  Having regard to the centrality and seriousness of the allegations made, these explanations were, and came across in the witness box as, unconvincing.  Further, the credit note came into existence well after the dismissal and could not have been the reason for it.  Perhaps sensing these shortcomings Mr Thornton took the opportunity shortly afterwards and following a lunch break to use a question in cross examination as a means to seek to retrieve the situation.  The exchange was as follows:

Well, you don’t point us to any other instance of his alleged poor performance at any time than 9 December, do you?‑‑‑Yes, well, I will say one thing, which was in relation to this $250,000, point six, which is made on the contentions of fact, saying that we had – that he just worked that one day and we made $250,000 worth of errors that day.  He didn’t, but he was working for about two weeks prior in the beamline as a QO man, effectively letting errors go through, I believe, intentionally.

When do you say he was working for two weeks in the beamline as a QO man?‑‑‑You might need to ask Mr Coon exactly, but I spoke to Mr Sathaar at lunch time.  He said, “No, he worked for about two weeks in the beamline as a – like a QO person in the same role.”

You went and telephoned Mr Sathaar in the lunch break?‑‑‑Am I not allowed to do that?

Well ‑ ‑ ‑?‑‑‑Sorry, I didn’t realise that was something I wasn’t allowed to do. 

It was explained to you, I think before the – before we broke – when we broke for lunch by your counsel that you weren’t to be having any discussions over the break, wasn’t it?‑‑‑He said I couldn’t talk to him.

All right, but you thought you were at liberty to go off and speak to Mr Sathaar to find out the situation?‑‑‑Well, if you want clarity on what happens, isn’t that the best thing?

49                  The suggestion that Mr Coon intentionally let errors pass in the two weeks prior to 9 December 2005 was an entirely new allegation.  It placed Mr Coon at work at a time when he had a medical certificate stating that he was unfit for work.  And there was no basis stated for the accusation that Mr Coon was acting intentionally.  The incident demonstrates a propensity in Mr Thornton to raise unfounded allegations in an attempt to support the case of the respondent. 

50                  Further, the information was obtained over lunch from Mr Sathaar.  Mr Thornton said, in effect, that this was the obvious thing to do because Mr Sathaar had the relevant information.  And yet Mr Sathaar was not called to give evidence.  He was supervising Mr Coon in the job as quality inspector and was present in the yard when, as Mr Thornton alleged, the errors were found.  Mr Sathaar was involved in correcting the errors also.  Mr Coon denied each of these facts.  Mr Thornton also said that he and Mr Sathaar discussed Mr Coon’s unsuitability for the job and the reasons for dismissing Mr Coon at the end of his trial period.  It can be concluded from the failure of the respondent to call Mr Sathaar that he would not have assisted the respondent’s case on these issues:  Jones v Dunkel.

51                  Another obstacle faced by the respondent in its argument that Mr Coon caused significant cost to the respondent by failing to inspect the steel in the yard properly was that Mr Thornton said that he, his father, and Mr Sathaar had to do the job which Mr Coon had failed to do.  If this were so, and they had done the inspection, one would expect that there would have been no faulty steel dispatched on that day.  Consequently, there would have been no rectification costs incurred.  When faced with this suggestion in cross examination Mr Thornton responded that:

… I’m not sure we rechecked everything. 

52                  The lack of certainty expressed in this answer is at odds with Mr Thornton’s evidence of his extreme level of anxiety arising from the circumstances of the day which Mr Thornton had previously described. 

53                  Then in [7] of the respondent’s contentions it was stated:

The second applicant’s employment was ended due to a downturn in work that came about largely as a result of these errors.

54                  There was no attempt at trial to support this allegation.  In re-examination Mr Thornton conceded that it was “exaggerating it a bit”.

55                  Another instance of a serious allegation made without detail was evident in [6.9] of Mr Thornton’s affidavit sworn on 27 July 2006.  There he said that a number of long term staff complained about working with Mr Coon and that they said that he was a potential troublemaker for the respondent.  In his evidence Mr Thornton also said that other staff had said that Mr Coon was threatening to them.  However, Mr Thornton said he could not remember who made these complaints, how many staff had complained, the specific nature of the complaints and he said that the respondent had kept no record of the complaints.  Furthermore, the content of the alleged complaints was expressed in the most general terms. 

56                  For these reasons, I do not accept that Mr Coon was, or that Mr Thornton believed that Mr Coon was, unsatisfactory as a quality inspector.  In the result, the respondent has not established on the balance of probabilities the positive case that the reason for dismissal of Mr Coon was that he was unsuitable for employment as a quality inspector. 

57                  Even though I have not accepted the positive cases contended for by the respondent, it is still open to the respondent to establish the negative case, namely, that the prohibited reasons did not play any part in the decision to dismiss the applicant employees.  It is to that matter which I now turn.

Section 298l(1)(a) – The union membership reason

58                  It will be recalled from [16] of these reasons that the respondent contended, on its construction of s 298V, that the onus lay on the applicants to demonstrate that the respondent knew that the applicant employees were union members, and that the applicants had failed to do so.  Alternatively, even if the onus lay on the respondent, it argued that it had discharged the onus by the denial by Mr Thornton that he acted for the reason of the applicant employees’ union membership.  The respondent also relied on some evidence of the applicant employees that they did not tell Mr Thornton that they were union members, and asked the Court to conclude that the respondent did not therefore know of the union membership of the applicant employees.  The respondent did not contest that the applicant employees were in fact members of the union. 

59                  The applicants disputed the construction of s 298V proposed by the respondent.  But, even accepting that construction, they argued that Mr Thornton’s denials should be rejected on the evidence as a whole.  The Court, they submitted, should draw the inference from the events of November and December 2005, against the background of Mr Thornton’s anti-union attitude, that he knew that the applicant employees were members of the union, and that he dismissed them for reasons which included that reason.

60                  It is convenient to review the evidence on the assumption in favour of the respondent that the applicants carried the onus of establishing that the respondent knew the applicant employees were union members, without presently determining the construction issue.  On that basis, in this section the evidence of Mr Thornton’s attitude to the union will be examined.  Then the events of November and December 2005 will be considered.  The separate circumstances of each of the dismissals will be discussed in the context of these events, and in view of Mr Thornton’s attitude to the union.    

Mr Thornton’s attitude to the union

61                  The dismissals of the applicant employees occurred against a background of a fairly long standing relationship between the union and the respondent.  Mr Thornton accepted that his conduct towards the union was hostile and obstructive.  Although at times in his evidence he sought to draw a distinction between his attitude to crazy or extreme activist unionists and others, the proper conclusion from his evidence as a whole is that he holds and held in December 2005, a deep seated antagonism to the union, union membership, and any meaningful role of unions in his workplace. 

62                  At this point in the proceeding it is not relevant to determine whether Mr Thornton’s attitude was justified or whether his account of the events which gave rise to his antagonism is true, but rather to understand how he viewed the role of the union and union membership.  This understanding may throw some light on whether union membership was a reason for the dismissals. 

63                  Mr Thornton explained the various factors which influenced his attitude to the union.  In about 1999 or 2000 when the respondent built the factory at Geelong, a dispute arose between the respondent and the union over union membership.  According to Mr Thornton the union tried to force the respondent into making the site a closed shop.  Mr Thornton and/or his father resisted the union demands.  The union and other unions in the area mounted a picket.  It was violent and involved about 100 people shouting, waving pieces of wood at people trying to enter, and urinating on locks.  Threats were made by the Construction, Forestry, Mining and Energy Union in support of the union including threats that it would not be safe for Mr Thornton, his family, or his workers to live in the area.  The respondent took steps which resulted in some restraining orders being made by “the High Court” and the picket ended after two weeks. 

64                  Mr Thornton viewed himself as promoting employment in Australia and believed that the union was just trying to bring him down.  He said:

The union have never given me anything to be positive about.  I mean, they continually try to prevent us from doing business so I don’t see what bit I would like about the union.

So you had a negative view of the union 2001 to 2004? --- Yes.

65                  An example given by Mr Thornton was that initially the union kept pressing for an agreement which gave the union the right to determine who was to be employed by the respondent and thereby completely control the company.  He described the demands thus:

Well, they wanted a closed shop, and we said that we didn’t – we thought surely the people can choose whether they want to have a closed shop or not.  I mean, they should be allowed to choose, at least, if they want to be in the union.  We’re not going to be dictated – we’re not going to have – effectively, the – it seemed to us the list of conditions they had were so horrendous that any operator that took it on would be destined to be a one- or two-man operation, five-man operation, almost completely controlled by the union.  Which is what’s happened in Geelong.  The Geelong area agreement has effectively meant there’s hardly any fabricators of any size at all in Geelong, because the union can just choose who works there, no matter how hopeless they are, and they can choose who – what jobs they get, and they can stop your clients – you know what I mean?  So I guess that’s the background to the history of caution when dealing with a union.

66                  Mr Thornton explained that if this agreement had been accepted by the respondent many customers would not have dealt with the respondent.  They would have feared that if they had a dispute with the union, their orders would be blackbanned by workers employed by the respondent. 

67                  Mr Thornton gave evidence that he had dealt with Mr Whelan from about 2000.  He had a dim view of Mr Whelan.  Mr Thornton believed that Mr Whelan had been responsible for placing bans on steel fabricated by the respondent, and for threatening customers of the respondent to put pressure on it.  Mr Thornton described the demands made by Mr Whelan thus:

He wanted us to sign the Geelong area agreement and part of that was that there was a list of demands that they could choose who worked for us.  We had to talk to them about who we were going to put on and so work from their list.  We had to – we had to pay – our company itself had to pay the union dues on behalf of the people.  We had to train, send people to union training.  We had to actually commit to make it a closed shop and not particularly let people that weren’t unionist or didn’t want to be in the union to come and work there and that’s the bit that we thought wasn’t fair, so, and that’s where it’s been.

68                  Mr Thornton described his relationship with his staff as follows:  

[W]e’ve always had a very, very good relationship with our staff, and staff have always talked to us if they’ve got any problems.  You know, we’re like a – I’m not going to go as far as saying we’re a family, but we are a team working together …

69                  In relation to Mr Whelan he said:

So we have a fairly close knit team of staff but Mr Whelan was sort of not part of that, you know, team effectively and when he came in he would sort of come in and bang the table to speak to me, so.

70                  In his affidavit sworn on 27 July 2006 Mr Thornton said that Mr Whelan went to employees of the respondent “attempting to use them to threaten us”.  He explained that this was a reference to several meetings held off site prior to the union meeting held on 9 December 2005.  He said that it was one of a number of methods “Mr Whelan went about trying to infiltrate our company”.  After Mr Thornton was pressed about the basis upon which he alleged Mr Whelan attempted to use employees to threaten the respondent the following exchange occurred with the Court: 

In the sentence you allege that threats were made by Mr Whelan using your employees.  What the Court needs to know is upon what basis you made that statement on oath, other than a guess as you have presently suggested? --- I don’t have any other basis other than that.

71                  The explanation given by Mr Thornton of the basis for making this allegation shows that Mr Thornton was suspicious of the actions of Mr Whelan. 

72                  On 9 December 2005, Mr Whelan held a meeting outdoors but on site at the change of shift in the early afternoon.  More about this meeting will be discussed later in these reasons.  At present it is sufficient to note that nearly half of the respondent’s workforce attended and Mr Thornton observed the meeting from a distance.  Following the meeting the union initiated a bargaining period with the respondent.  In consequence of this meeting Mr Thornton formed a committee of elected employee representatives as a vehicle for communication between the workforce and the respondent.  He held several meetings within days of the union meeting for the purpose of electing the representatives.  He explained the purpose of the new initiative as follows: 

Well, I mean, that’s – I think that was probably a reaction of trying to allow people to – if they’re worried, rather than feel they have to go to the union, they can talk to us as well. 

73                  At about the same time as the employer convened meetings, on 16 December 2005, Mr Whelan served a notice that he wished to visit the site on 21 December 2005 in exercise of his right of entry as a union official.  Mr Thornton agreed that he treated the request with hostility.  He did not object to the visit until the day of the proposed visit when he sent the following fax to the union:

Regarding your fax relating to ‘Right of Entry’ dated 16^th Dec 05 I can confirm the following:

-                     I have spoken with Vecci [Victorian Employers’ Chamber of Commerce and Industry] and they informed me that prior to your intended entry you need to inform us what the suspected breech [sic] is and who it relates to

-                     Until the above has been done you will be declined access to our premises.

-                     Should you attempt to gain entry unlawfully we will immediately lodge a complaint against you and reinitiate old complaints against Garry Robb in an effort to have your permit revoked.

Relating to your ‘Notice of Initiation of Bargaining Period’ 16/12/05 I can confirm that we negotiate directly with our staff and already have an agreement in place.  Therefore no communication will be entered into with the AMWU or any other union.

74                  Mr Thornton said that he wrote the letter after receiving advice from Mr Ironmonger of the Victorian Employers’ Chamber of Commerce and Industry (VECCI), whose advice was “write this.  This will really bloody make it difficult”.  After the exchange of several faxes throughout the day between the respondent and the union in which the union contended that Mr Thornton had no legal basis for his position, Mr Thornton did not pursue his objection.  He explained his approach as follows:

Well, I generally take the attitude that Brendan makes things as hard as he can for me at every point.  He blocks us out of jobs and threatens us and I – if he tried to give me the stuff I try to make it as difficult as I can to do it back, which I think he understands and – but I can only do what I can do so I just – you know what I mean.  I like to make sure that if I can, to not be a soft touch, you know. 

75                  In about March 2006, Mr Thornton wrote an analysis for his bank describing the causes of the problems which had faced the business in the previous financial year and the changes which addressed those problems.  In the letter to the bank he described union activity as one of the causes of the problem which faced the respondent.  He said:

It didn’t take long to find out where the problem was; we had night shifts producing almost nothing, union activity creeping in, moral [sic] at rock bottom, weekend overtime at extreme levels and almost completely uncontrolled employment by management. 

(Emphasis added.)

76                  Finally, it is possible to see something of Mr Thornton’s attitude to unions and union membership by reference to a document he created in about 2000.  The document listed interview questions to be asked of applicants for employment and of their past employers.  The form included the following: 

Candidate Questions

            …

·        Are you a member of a union?

·        Would you wish to remain a member if working at a non-union factory?

·        Would you be happy working with a non-union agreement?

·        If we ever had a picket would you be prepared to continue coming to work (cross a picket line)?

            …

Questions for past employers

            …

·        Were they involved with any union activity during their employment? (eg shop steward or organizing [sic] strikes etc?)

If the answer to any of the above questions to employer were negative then don’t employ them.  Always ask three (3) past employers, employer may give incorrect answers due to the following:

-                     Trying to get the person to leave (therefore encouraging us to employ them)

-                     Ongoing work cover claimant that we will take on if we employ

-                     They may be friends of the person

77                  Mr Thornton explained variously that he thought the document was never used, that nobody had read it, that nobody was instructed to use it, and that the applicant employees had procured it wrongfully and that it was only meant to signal to candidates that the respondent was not a closed shop.  Mr Thornton was pressed in cross examination and by the Court about the conflict between the last explanation and the express wording of the document.  He seemed to explain it as written in a moment of anger.  He said: 

It looks like the sort of thing I would have written probably the day after we’d had a bloody strike at the front gate but I don’t really recall anyone ever using it. 

78                  Mr Thornton sought to explain his actions as motivated not by antagonism towards the union but in accordance with the policy of the respondent to allow free choice to individual employees to decide whether or not to be members of the union.  Mr Thornton said that the respondent resisted making an agreement with the union for that reason, namely to ensure freedom of choice for employees was protected and the respondent did not become a closed shop.

79                  However, the evidence established that Mr Thornton had a negative view of the union and Mr Whelan, that he was suspicious of union membership and activity amongst employees and that he obstructed and sought to circumvent the involvement of the union in the respondent’s workplace.

Union activity in November and until 9 December 2005

80                  Next it is necessary to examine the union activity which occurred in relation to the workplace in November and December 2005.

81                  Mr Whelan held three meetings with employees of the respondent in November and early December 2005.  About 12 employees attended the first meeting held on 17 November 2005 at the Lara Pub.  About 15 mainly different employees attended the same place on 28 November 2005, and about 10 employees including Mr Coon, attended the third meeting at the Norlane Hotel on 1 December 2005.  At each of the meetings some of the employees spoke about improving certain terms and conditions of their employment.  Mr Taylor could not attend the meetings because he worked on the afternoon shift and the meetings were held in the afternoon.  But he was told that the meetings were held to formulate the terms of a collective agreement between the respondent and the union. 

82                  In his affidavit sworn on 5 January 2006 Mr Taylor referred to a meeting of both shifts in mid to late November called by Mr Kelly, the Fabrication Manager.  The employees discussed their employment conditions and what they wanted included in an enterprise agreement.  Mr Taylor raised the issues of annual leave loading and the number of sick days allowed.  Mr Kelly said that the employees should discuss their demands and give him a list of what they wanted in an enterprise agreement.  In cross examination Mr Taylor explained that the employees wanted the same terms in an agreement as applied generally in the Geelong area.  He said that Mr Kelly “was stepping in for management to organise the EBA [enterprise bargaining agreement]”. 

83                  Mr Taylor gave evidence that the afternoon shift met subsequently to write up the list of demands and the meeting agreed to seek the Geelong area conditions.  Mr Kemmis took notes of the conditions to be included in the agreement.  Mr Taylor thought that the demands were conveyed to Mr Thornton.  Mr Kemmis said that the meeting was called by Mr Matt Coon, the afternoon shift leading hand.  Mr Kemmis believed that Mr Matt Coon had been asked to convene the meeting by Mr Ken Hewitt, the day shift leading hand, who was compiling a list of conditions to be discussed with management.  Mr Kemmis understood that management wanted to negotiate an agreement directly with the employees. 

84                  Mr Kemmis was not cross examined on these matters.  Mr Taylor was briefly cross examined on them, and confirmed his evidence. 

85                  Mr Thornton in cross examination denied that he knew if any of the applicant employees were involved in the process of seeking an enterprise agreement.  This evidence was inconsistent with his affidavit in which he said that Mr Matt Coon had told him in relation to the afternoon shift meeting that Mr Kemmis “had organised this unauthorised stoppage of work”.  Mr Thornton also said that at about this time he spoke to Mr Hewitt who said that the day shift were happy but the afternoon shift would not do anything without the union involved.

86                  In his affidavit affirmed on 3 January 2006 Mr Kemmis described his activities in the workplace at about the time of the afternoon shift meeting.  He raised a number of safety concerns with Mr Matt Coon and Mr Kelly including several issues relating to the safety of the operation of a crane.  As a result of these actions his fellow employees saw him as an active union member and began to approach him with issues which concerned them, and in particular about claims for leave loading on annual leave and income protection in times of sickness. 

87                  In his affidavit in response, Mr Thornton said that Mr Kemmis was critical of the respondent from the start and appeared constantly unhappy.  He was aggressive and threatening to other employees.  He seemed to have a hatred for the respondent.  Mr Thornton spoke to Mr Matt Coon when problems arose on the beamline and Mr Matt Coon said that Mr Kemmis was continually attacking him and it was too much to bear.  Mr Thornton said that Mr Matt Coon was almost at breaking point at the meeting.  In response to part of [15] of Mr Kemmis’ affidavit which stated:

Talk amongst the floor about the union was gathering momentum, and I advocated for the union wherever I could with practically everyone on the shift.

Mr Thornton said at [7.15] of his affidavit:

In respect of paragraph 15 it reinforces the claim by other employees that they had each been continually and individually harassed by Kemmis regarding issues of any conceivable problem he had with working at Thornton.

Mr Thornton further said at [9] of his affidavit that he and Mr Sathaar had discussed Mr Matt Coon’s problem with Mr Kemmis on or about 10 December 2005.

88                  In cross examination Mr Thornton repeated the allegations that employees had complained that Mr Kemmis was threatening, very difficult, very unhappy, and that Mr Matt Coon was terrified of him, found him hard to bear and was at breaking point.  Mr Thornton said that he did not know Mr Kemmis personally.  He was pressed for details about the threats and aggression alleged and was given a number of opportunities to amplify the accusations.  He responded that he did not know or could not remember the detail.  He also said that the complaints had not been investigated by the respondent.  These answers were given with deliberation and control.  But there came a point in cross examination after Mr Thornton had been pressed quite long and hard about the specifics of his allegations against Mr Kemmis when he lost some of that control.  At that point the following exchange occurred:  

So you prepared an affidavit that said that he was threatening without having any idea about any particular threat that he had made? --- I mean, do I know exactly what he said to people, that I could verify and have tape recordings and affidavits, no I don’t but was he threatening and angry and aggressive yes, I understand, but I didn’t say that – I didn’t list that what he actually did to be threatening.

And you couldn’t say in what way he had threatened any particular person? --- Well, Mr Coon just said that he kept complaining, complaining, complaining, all the time.  He had infinite issues with everything imaginable …

89                  From the evidence concerning the events of November and December 2005 I find that Mr Kemmis was actively seeking and promoting the involvement of the union in the workplace during November 2005.  I further find that Mr Thornton was kept informed in discussions with Mr Matt Coon and Mr Kelly of matters relevant to the functioning of the workplace including Mr Kemmis’ activities.  I infer from the circumstances that Mr Thornton was informed that Mr Kemmis was actively promoting involvement of the union for the purpose of negotiating a collective agreement with improved terms and conditions of employment.  I do not accept Mr Thornton’s evidence that Mr Kemmis was threatening or aggressive to other employees.  Rather Mr Thornton’s stance against Mr Kemmis reflected his own antagonism to Mr Kemmis’ actions in support of union involvement, and an attempt to discredit Mr Kemmis to justify that antagonism.    

Union meeting on 9 December 2005

90                  Mr Whelan’s attempts to gain the support from employees of the respondent to have the union negotiate a collective agreement came to a head on 9 December 2005.  He called a meeting of all employees for 2.30 p.m.  The meeting was held at the change of shift and lasted for about half an hour.  Mr Whelan spoke about negotiating better terms and conditions of employment through the union.  Mr Coon spoke strongly in favour of the union and argued that the employees should have the same conditions as in the Geelong area agreement.  He particularly referred to the need for income protection and used his own recent accident as an illustration of the need for such a condition.  Mr Kemmis also spoke at the meeting.  He said that the union would be able to negotiate better conditions for the employees.  About 40 – 50 employees attended.  Mr Thornton said that it seemed that nearly everybody was there.  In fact those numbers represented just over half of the workforce.  The meeting voted in favour of the union negotiating an enterprise bargaining agreement on behalf of the employees.  Consequently, at the end of the day Mr Whelan instituted a bargaining period with the respondent by leaving a written notice with a receptionist on site. 

91                  An important question is what impact this meeting had on Mr Thornton.  He knew the meeting was to be held.  He thought the purpose was to get new members to join the union.  Whilst it was being held he was nearby.  There was evidence, which he did not contradict, that he observed the employees on their way to the meeting as they passed by where he was standing.  He knew that Mr Coon was at the meeting and did not contest that Mr Taylor and Mr Kemmis were there also.  He estimated that he was standing about 100 metres from where the meeting was held.  He said his view was blocked by trees or bushes about 2 metres high and he did not hear what was said.  Mr Sathaar and Mr Thornton’s father were with him at the time.  Mr Thornton said that he “really didn’t care that much about what they said at the meeting”.  His evidence was that he was in the vicinity because he, his father, and Mr Sathaar had to rectify the errors made by Mr Coon in checking the steel lying in the yard ready to be dispatched to Mackay. 

92                  In view of Mr Thornton’s hostility towards the involvement of the union and Mr Whelan in the workplace it is improbable that he “didn’t care that much” about what was said at the meeting.  No previous meeting called by the union had attracted such a large attendance.  His response to the meeting was to call his own meeting within a few days to try to render unnecessary any further involvement of the union. And several days after the meeting he sought to prevent the exercise of Mr Whelan’s right of entry on 21 December 2005.  These responses and actions were consistent with the past history of relations between the union and the respondent and point to a high level of concern by Mr Thornton over the development of union activity on the site.

93                  Mr Kemmis, Mr Coon and Mr Taylor all placed Mr Thornton, his father and Mr Sathaar, 30 metres or closer to the meeting.  Mr Taylor and Mr Whelan both said they thought Mr Thornton could hear what was said.  Mr Coon said that Mr Thornton was loitering in the area.  Mr Taylor said that the speakers made sure that Mr Thornton could hear what they said.  He said Mr Whelan is “a bit loud” and Mr Thornton must be “pretty deaf” if he did not hear.  While Mr Whelan said that 9 December 2005 was a “very windy” day, he made this remark in relation to an attempt to procure the lunch room for the union meeting earlier that day and did not state whether it was in fact windy during the meeting.  No other witness could confirm whether it was windy.  Mr Coon said that the only beams which were to be checked that day in the area from which Mr Thornton observed the meeting were two 18 metre beams.  Mr Whelan and Mr Taylor generally agreed that there were 2 metre high trees or bushes at the edge of the car park between the meeting area and where Mr Thornton stood. 

94                  Both Mr Sathaar and Mr Thornton’s father could have given evidence as to how far away from the meeting they were standing, whether they were checking steel as Mr Thornton said, and whether the speakers were audible to them.  Both men were available to the respondent and are in its camp.  Their absence from the witness box leads to the conclusion that their evidence would not have assisted the respondent:  Jones v Dunkel.   

95                  I prefer the evidence of Mr Kemmis, Mr Coon and Mr Taylor that Mr Thornton was no more than 30 metres from the meeting.  In particular Mr Taylor had a recollection of the location of the management group by reference to a particular door of the plate work factory.  This was a level of detail not found in Mr Thornton’s recollection.  I also accept the evidence of Mr Taylor that the speakers aimed to have Mr Thornton hear what was said and that it was said loudly for Mr Thornton to hear. 

96                  I find that the evidence positively establishes that Mr Thornton was present within 30 metres of the meeting for the purpose of observing and listening to what was said.  I further find that he heard Mr Coon and Mr Kemmis speak at the meeting in favour of union involvement in negotiating a collective agreement with the respondent, and he observed workers at the meeting vote in favour of this course. 

97                  It is convenient to deal with the dismissal of Mr Kemmis on 12 December 2005 at this point and return to the flow of events between 12 – 21 December 2005, thereafter. 

The dismissal of Mr Kemmis – 12 December 2005

98                  On the next working day after the meeting on 9 December 2005, namely, Monday 12 December 2005, at 2.00 p.m just before his first shift after the 9 December 2005 meeting was to start, Mr Kemmis was dismissed.  The timing follows closely on Mr Kemmis’ activities to promote the union in November and his address to the meeting on 9 December 2005.  In view of my findings expressed in [80] – [96], and against the background of Mr Thornton’s anti-union attitude described in [61] – [79], and from the timing of the dismissal it is positively established that at least one of the reasons for it was that Mr Kemmis was a union member. 

Union activity between 12 December and 21 December 2005

99                  On the same day that Mr Kemmis was dismissed Mr Thornton took another step to limit the influence of the union on site.  He held a meeting of the day shift employees in order to initiate a workers’ committee composed of employees elected by fellow workers.  Mr Thornton explained his motivation as follows: 

I think that was probably a reaction of trying to allow people if – if they’re worried, rather than feel they have to go to the union, they can talk to us as well.

100               Mr Thornton gave evidence that Mr Coon was a major participant at that meeting and was cooperative and constructive during it.  Mr Thornton said that Mr Coon’s participation was limited to seeking clarification of the effect of the proposed industrial relations changes on the respondent.  However, notes taken during the meeting show that the major topics of discussion were suggested improvements to industrial conditions rather than protection of existing conditions. 

101               Again, on 12 December 2005 Mr Whelan phoned Mr Thornton to discuss the dismissal of Mr Kemmis, and also the dismissal of another employee, Mr Troy Rose.

102               On the next day, 13 December 2005, he met with the afternoon shift for the same purpose.  Mr Taylor volunteered to serve as a worker representative.  Mr Taylor’s activities as a workers’ representative are the basis for the applicants’ argument that Mr Thornton must have known that Mr Taylor was a union member and that he was dismissed for reasons including that he was a union member. 

103               On 14 December 2005, Mr Thornton held a meeting of the newly formed committee of employee representatives, but the afternoon shift representatives were not present.  Mr Taylor as one of the representatives received conflicting reports of the outcome of the meeting held on the previous day and so he tried to arrange a meeting with Mr Thornton to ascertain the outcome in order to report to the union meeting due to take place on 16 December 2005.  Mr Sathaar finally offered him a meeting with Mr Thornton on 19 December 2005.  Mr Taylor replied to Mr Sathaar that this time was unsatisfactory as he “wanted to know what happened before our union meeting on Friday so I could tell everybody else I work with”.  (Emphasis added.)  Mr Sathaar then phoned Mr Thornton and a meeting was arranged for later on 15 December 2005.  Mr Ryan, another afternoon shift representative and two other employees attended. 

104               From the reference to “our union meeting” in the conversation between Mr Taylor and Mr Sathaar, and against the general background of Mr Thornton’s hostility to the union, the applicants contended that Mr Thornton must have known that Mr Taylor was a union member and the Court should not accept his denial that he dismissed Mr Taylor for reasons which included that reason. 

105               The evidence establishes that Mr Sathaar asked Mr Thornton for a meeting with Mr Taylor to take place earlier than 19 December 2005.  I infer that Mr Thornton was told that the earlier time was needed to allow for a report back to the union meeting to be held on 16 December 2005.  Mr Thornton recalled little of the detail of the meeting.  However he remembered that Mr Taylor was involved as one of the elected employee representatives and that they discussed issues which had arisen at the meeting called by Mr Thornton on 14 December 2005.  I find that Mr Thornton did not identify Mr Taylor as a union member in the context of this meeting. 

106               On 16 December 2005 Mr Whelan held a further mass meeting of employees of the respondent as had been decided at the meeting on 9 December 2005.  There was a discussion about the dismissal of Mr Kemmis and Mr Rose.  Mr Coon raised concerns at the meeting.  At least ten employees joined the union at or shortly after this meeting.  Mr Coon signed up about six members.  There were about 40 employees then who were members of the union.  The meeting decided to hold a further meeting on 21 December 2005.  After the meeting Mr Whelan went to see Mr Thornton, who was not available.  Mr Whelan arranged a meeting for the following day.  He attended the respondent’s site, but Mr Thornton was again not available. 

107               Also on 16 December 2005, as recorded in [73] – [74] of these reasons, Mr Whelan sent Mr Thornton a fax in which he sought to exercise his right of entry on 21 December 2005.  Mr Thornton did not respond until the day of the proposed entry, and then initially in a way which was designed to frustrate Mr Whelan obtaining access.

108               On 20 December 2005 Mr Coon spoke to employees at lunchtime about health and safety concerns particularly in relation to the use of cranes, and this generated discussion about health and safety issues.  He encouraged employees with concerns about these issues to attend the union meeting on the following day. 

The dismissal of Mr Coon – 21 December 2005

109               On 21 December 2005 Mr Coon attended work at 6.30 a.m and spoke to some employees about attending the union meeting that day.  Mr Hewitt said to him “you’re really hyping up this union stuff”.  Then Mr Coon saw Mr Hewitt meeting with Mr Sathaar and Mr Kelly.  Shortly thereafter Mr Coon was asked to go to Mr Sathaar’s office.  Mr Kelly was there.  Mr Sathaar said that the quality control function was to be outsourced.  Mr Coon assumed he would therefore return to his previous position as a boilermaker.  When he raised this prospect he was told by Mr Sathaar that the respondent would not retain him as boilermaker but was dismissing him.

110               Mr Thornton said that Mr Coon had volunteered a number of times that he was not a member of a union.  When asked to elaborate, Mr Thornton said that he presumed Mr Coon was not a member because when he first began his employment he was an impressive worker. 

111               The evidence establishes that Mr Coon was active in the workplace in advocating a role for the union in negotiating a collective agreement with the respondent to improve employment terms and conditions.  He spoke at the 9 December 2005 union meeting, and I have found that Mr Thornton observed and heard him speak at the meeting.  Mr Coon addressed the meeting held on 16 December 2005 and spoke at lunchtime to employees on 20 December 2005 about health and safety issues, and encouraged them to attend the union meeting on 21 December 2005.  At this time he was actively recruiting union members.  Membership increased from about 30 to 40 members during this period.  Mr Thornton was strongly opposed to the union gaining influence and had taken steps to prevent this happening.  At the time when Mr Coon was dismissed there was an unusually high level of activity by Mr Whelan attempting to organise the workplace, and Mr Thornton correspondingly attempting to hinder the process.  From these circumstances I infer that Mr Thornton knew of Mr Coon’s activities in support of the union.

112               For these reasons I am satisfied on the balance of probabilities that at least one of the reasons for the respondent’s dismissal of Mr Coon was that he was a member of the union.

The dismissal of Mr Taylor – 21 December 2005

113               Although Mr Taylor said that he was one of “three amigos” with Mr Coon and Mr Kemmis in agitating for a role for the union, the only evidence before the Court which indicated that Mr Thornton would have been alerted to Mr Taylor’s role was the evidence of Mr Taylor’s insistence on an early meeting with Mr Thornton on 15 December 2005 to enable Mr Taylor to report to “our union meeting”.  I have found that Mr Thornton did not learn of Mr Taylor’s union membership from this incident.  Mr Thornton’s denial of knowledge of Mr Taylor’s union membership is capable, if accepted, to rebut the presumption raised by s 298V.  The denial is supported by the evidence of the circumstances which prevailed in the workplace at the time, namely that there was no occasion on which Mr Thornton learned that Mr Taylor was a member of the union.  The finding which I have made that Mr Thornton had a hostile and obstructive approach to the union is not sufficient in view of the entire evidence to reject Mr Thornton’s denial that he acted at least partly because Mr Taylor was a union member.  Further, whilst there are reasons which have been explained for rejecting much of Mr Thornton’s evidence, this is no such reason to reject his denial on this issue.  Consequently, I find that the respondent has rebutted the presumption that Mr Taylor was dismissed for a reason which included that he was a member of the union. 

Section 298L(1)(l) – Dissatisfaction with conditions ground

114               Again it is convenient to approach this ground in a way most favourable to the respondent without determining whether the approach is correct in law.  The respondent contended that s 298L(1)(l) required the conditions sought by the union and the conditions about which the applicant employees were dissatisfied to be the same:  Heidt v Chrysler Australia Ltd (1976) 13 ALR 365 at 375.  Further, the respondent submitted that this fact was a condition precedent to the application of s 298V and, hence, the onus lay on the applicants to demonstrate the coincidence of conditions.  Whilst I doubt that the respondent is correct in this second submission concerning the construction of s 298V, nothing turns on resolution of the issue because, accepting for the purposes of argument the approach proposed by the respondent, the facts of the case do not support the conclusion contended for by it. 

115               There was evidence that at all times Mr Whelan pursued the aim of having the respondent negotiate a collective agreement with the union.  This is what he told the employees who attended the off site meetings in November and on 1 December 2005.  Then, at the union meeting on 9 December 2005 he advocated a role for the union in negotiating an agreement with the respondent.  That, he told the meeting, was the way to improve terms and conditions of employment.  At the end of the meeting there was a vote in favour of the union negotiating a collective agreement with the respondent, and Mr Whelan initiated a bargaining period immediately following the vote.  Mr Thornton acknowledged that Mr Whelan constantly tried to get the respondent to negotiate an agreement with the union. 

116               There was evidence that the applicant employees also wanted the respondent to negotiate a collective agreement with the union in order to achieve an improvement in conditions of employment.  Mr Kemmis and Mr Coon expressly stated their positions at the meeting on 9 December 2005.  Mr Taylor described himself as one of the “three amigos” who, together with Mr Kemmis and Mr Coon, were agitating for the respondent to engage with the union to negotiate improved conditions.  They were dissatisfied with the situation in which Mr Thornton refused to negotiate with the union. 

117               Thus, the condition which the union was pursuing and about which the applicant employees were dissatisfied was the same, namely, representation by the union of the employees of the respondent in the negotiation of a collective agreement to improve the terms and conditions of employment. 

118               The respondent then argued that a demand for the union to negotiate a collective agreement containing improved terms and conditions of employment was not an industrial condition within the meaning of s 298L(1)(l).  It was submitted that the natural meaning of the expression industrial conditions refers to the type of conditions to be found in awards or employment agreements relating to salaries, wages, superannuation, meal breaks, hours of work and the like.  The claim for union representation was a claim anterior to the conclusion of industrial conditions.  This submission was not elaborated.  The principle which underlies the distinction sought to be made appears to rest on a matter of timing.  In other words, industrial conditions are the result of a process involving negotiating parties, and the prior establishment of the elements of that process, including the participants, does not involve the establishment of industrial conditions. 

119               This interpretation takes too narrow a view of the meaning of the expression industrial conditions.  There is nothing in the natural meaning of the expression which would prevent a requirement for union representation being described as an industrial condition.  The statutory context suggests that such a requirement would fall within that description.  The purpose of s 298K with s 298L(1)(l) is protective, that is to say, it is designed to prevent employees being prejudiced because they are dissatisfied with their working conditions where their union is taking steps to improve those conditions.  Viewed this way the claim for union representation in the negotiation of a collective agreement falls within the statutory description.  That view is supported by Webb v Nationwide News Pty Ltd (1985)10 IR 252 at 283 where Wilcox J said:

… [a] term such as “industrial conditions” should be construed liberally and so as to embrace arrangements for consultation between employer and employee in relation to matters arising out of that relationship and relevant to the working environment of employees, as such. 

His Honour based that approach on the judgments delivered in Federated Clerks Union of Australia v Victorian Employers Federation (1984) 154 CLR 472, which held that the wider term “industrial matters” included a claim that a union be consulted in relation to technological changes.

120               Then, the respondent contended that s 298L(1)(l) required that the respondent subjectively knew that the applicant employees were dissatisfied with their conditions.  Accepting this construction for present purposes, in relation to Mr Coon and Mr Kemmis the evidence as a whole does not support the conclusion suggested by the respondent, namely, that Mr Thornton did not know that Mr Coon and Mr Kemmis were dissatisfied with their conditions.  I have found that Mr Thornton heard Mr Coon and Mr Kemmis at the meeting on 9 December 2005 articulating their claim for the union to negotiate a collective agreement containing improved terms and conditions.  I have also found that Mr Thornton was aware of Mr Kemmis’ activities in November 2005 in support of union representation.  The evidence as a whole therefore establishes that Mr Thornton knew that Mr Coon and Mr Kemmis were dissatisfied with Mr Thornton’s refusal to enter into negotiations with the union about a collective agreement.

121               The position of Mr Taylor must be viewed separately because he did not address the meeting on 9 December 2005 and there was not the same evidence that he took action in support of union representation at the workplace.  When it was put to Mr Thornton in cross examination that he perceived Mr Taylor as dissatisfied with his industrial conditions and was campaigning with the union for better conditions to be included in a collective agreement, Mr Thornton answered that he did not know Mr Taylor. 

122               This answer was inconsistent with his evidence about the meeting with Mr Taylor on 15 December 2005.  Mr Thornton recalled in some detail the way the meeting on 15 December 2005 came about.  For instance, he remembered that Mr Taylor was anxious to have the meeting, that it had to be sooner than first suggested and that it arose because Mr Taylor had not attended the earlier meeting on 14 December 2005.  I find that at least by the time the meeting of 15 December 2005 ended Mr Thornton knew who Mr Taylor was. 

123               The evidence also establishes on the balance of probabilities that Mr Taylor had raised with Mr Thornton his concern for the union involvement in negotiating a collective agreement to improve terms and conditions of employment.  For instance, Mr Taylor gave the following evidence in an exchange with the Court: 

Mr Taylor, just before re-examination, can you tell me this.  You were obviously involved in trying to get this EBA signed up with the ---? --- I was one of the representatives on afternoon shift.

And, over that period from, sort of, September to December when this claim for an EBA, and the conditions associated with, were going on, if you were asked who were the main blokes pushing the line, in a sort of public way, with the other employees, who would they have been?  I mean, obviously you were one? --- Well, there would have been – the only other bloke I can’t believe didn’t get the bullet was Steve Ryan because he is the other union – the other bloke on afternoon shift with me.  So he stayed there.  But virtually the three of us amigos here got the flick.

But why do you say that was? --- Well, we were the ones out there trying to get the union involved.

Why was it the three of ---? --- We wanted the Geelong area agreement up and running.

Were there any others other than the three of you who were involved in that project, if you like? --- Not dealing with Mr Thornton, there wasn’t.  We were virtually the spokesperson on afternoon shift and all that sort of thing.

The three of you plus Steve Ryan? --- Yes, Steve Ryan, yes.  He was representing with me on afternoon shift. 

124               Further, the purpose of the urgent meeting on 15 December 2005 was to bring Mr Taylor up to date on what had occurred at the earlier meeting on 14 December 2005 with the other employee representatives.  Minutes of the earlier meeting prepared by the respondent, included the following item:

Staff working at Thornton’s don’t want to feel disadvantaged by working here as opposed to a union shop working under the Geelong Area Agreement.

It is likely that the same issue arose during the meeting between Mr Taylor and Mr Thornton.  The item of discussion reflects the dissatisfaction of the applicant employees, namely that the respondent had failed to enter into negotiations with the union about a collective agreement, similar to the Geelong area agreement.

125               I find on the evidence as a whole that Mr Thornton knew by 21 December 2005 that Mr Taylor was dissatisfied with the failure of the respondent to enter into negotiations with the union for a collective agreement to improve the terms and conditions of employment.

Conclusion

126               It follows from these reasons that the evidence positively establishes that the respondent dismissed Mr Coon and Mr Kemmis for reasons which included the reason that they were union members.  However, in relation to Mr Taylor the evidence positively establishes that he was not dismissed for the reason or for reasons that include the reason that he was a union member. 

127               It also follows from these reasons that the evidence positively establishes that the respondent dismissed Mr Coon, Mr Kemmis and Mr Taylor for reasons which included the reason that the union was seeking better industrial conditions and each of them was dissatisfied with his conditions. 

128               The respondent thus contravened s 298K(1)(a) of the Act by dismissing Mr Coon and Mr Kemmis for reasons which included reasons prohibited by s 298L(1)(a) and (l), and by dismissing Mr Taylor for reasons which included the reason prohibited by s 298L(1)(l) of the Act.  Declarations will be made accordingly, and the application will be adjourned for a further hearing to consider any orders which should be made under s 298U of the Act.

Associate:

Dated:         6 October 2008