Australian Meat Industry Employees' Union v Belandra Pty Ltd
[2003] FCA 910
•29 AUGUST 2003
FEDERAL COURT OF AUSTRALIA
Australian Meat Industry Employees’ Union v Belandra Pty Ltd [2003] FCA 910
INDUSTRIAL LAW – industrial relations – freedom of association – employer, closed down operation in July 2001 following fire with intention to reemploy workers when operation rebuilt – later decided not to reemploy – recommenced operations but contracted management company to manage – management company engaged labour-hire company to supply workers - labour-hire company offered workers employment under Australian Workplace Agreements – whether conduct of employer amounted to breach of Workplace Relations Act 1996 (Cth) ss 298K - 298L.
INDUSTRIAL LAW – meaning of “employer” – whether first respondent was an actual employer – whether there was an absolute termination of employment in July 2001 – whether employees on WorkCover were not terminated – whether continued employment of WorkCover employees meant that first respondent was an actual employer – whether first respondent was usually an employer – whether general definition of employer in Workplace Relations Act 1996 (Cth) s4(1) applies to Part XA – proximity of employment.
INDUSTRIAL LAW – conduct of employer - refusal to employ – whether first respondent refused to employ the workers – whether the applicant must demonstrate that there was a vacancy for there to be a refusal to employ – where employer contrives to have no vacancies by the contravening conduct itself.
INDUSTRIAL LAW – conduct of employer - alteration to prejudice – whether the first respondent altered the position of the employees to their prejudice in breach of s298K(1)(c) when it decided not to reemploy – whether the employees had an expectation – whether expectation included reemployment on basis of seniority – whether prejudicial alteration to position must occur to employee’s legal rights – whether prejudicial alteration to position can only occur if an employment relationship exists at the time of the alteration – whether conduct of employer must be directed at an individual employee.
INDUSTRIAL LAW – prohibited reason for conduct – entitlement to the benefit of an agreement – whether the employees were entitled to the benefit of an agreement when decision not to reemploy them and/or prejudicial alteration to their position made – whether entitlement may be held by prospective of or previous employee – whether refusal to employ was because of entitlement.
INDUSTRIAL LAW – prohibited reason for conduct – membership of an industrial association – whether first respondent refused to employ and/or altered employees’ position to their prejudice because they were members of an industrial association – meaning of “membership” – whether s298L(1)(a) protects employees from victimisation merely for being a union member or also for the activities of the union as an incident of the employee being a member – whether statutory context suggests that scope of s298L(1)(a) is restricted to protection for holding a membership card – whether other subsections of s298L(1) exclude broader interpretation of s298L(1)(a) – expressio unius est exclusio alterius– obligations under international law - law of other jurisdictions.
WORDS AND PHRASES – “actual employer”, “usually an employer”, “refuse to employ”, “alteration of position to prejudice”, “entitled”, “member of an industrial association”.
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Office of the Employment Advocate 2003, Sydney, viewed 28 August 2003, < MEAT INDUSTRY EMPLOYEES' UNION v BELANDRA PTY LTD & ORS
V416 OF 2002
NORTH J
29 AUGUST 2003
MELBOURNE
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
V416 OF 2002
BETWEEN:
AUSTRALASIAN MEAT INDUSTRY EMPLOYEES' UNION
APPLICANTAND:
BELANDRA PTY LTD
FIRST RESPONDENTLARBERG PTY LTD
SECOND RESPONDENTWEBB LABOUR HIRE PTY LTD (trading as ESP TECFORCE)
THIRD RESPONDENTTASMAN GROUP SERVICES PTY LTD
FOURTH RESPONDENTTASMAN GROUP HOLDINGS PTY LTD
FIFTH RESPONDENTSEAN PATRICK CARROLL
SIXTH RESPONDENTJUDGE:
NORTH J
DATE OF ORDER:
29 AUGUST 2003
WHERE MADE:
MELBOURNE
DEFINITION:
In this order:
(a)a reference to “the 2000 Agreement” is a reference to the Belandra Pty Ltd and the Australasian Meat Industry Employees’ Union Victorian Meat Processing Agreement 2000, which was certified by the Australian Industrial Relations Commission on 20 July 2000;
(b)a reference to “the Belandra employees” is a reference to the persons who were members of the applicant and who were employed by the first respondent immediately prior to the fire, which occurred at 30 Industry Park Drive, Brooklyn, Victoria, on 20 June 2001, and whose terms and conditions of employment were governed by the 2000 Agreement.
THE COURT DECLARES THAT:
1.In September 2001, the first respondent contravened s 298K(1)(c) of the Workplace Relations Act 1996 (Cth) by altering the position of each of the Belandra employees to the prejudice of that person by refusing to employ that person for the reason, proscribed by s 298L(1)(a), namely, that the person was a member of the applicant.
2.In September 2001, the first respondent contravened s 298K(1)(c) of the Workplace Relations Act 1996 (Cth) by altering the position of each of the Belandra employees to the prejudice of that person by refusing to employ that person for the reason, proscribed by s 298L(1)(h), namely, that the person was entitled to the benefit of the 2000 Agreement.
3.In September 2001, the first respondent contravened s 298K(1)(d) of the Workplace Relations Act 1996 (Cth) by refusing to employ each of the Belandra employees for the reason proscribed by s 298L(1)(a), namely, that the person was a member of the applicant.
4.In September 2001, the first respondent contravened s 298K(1)(d) of the Workplace Relations Act 1996 (Cth) by refusing to employ each of the Belandra employees for the reason, proscribed by s 298L(1)(h), namely, that the person was a member of the applicant.
THE COURT ORDERS THAT:
1.The application is adjourned until 10.15 am on 26 September 2003 for directions in relation to the further hearing concerning penalty and other relief sought.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
V416 OF 2002
BETWEEN:
AUSTRALASIAN MEAT INDUSTRY EMPLOYEES' UNION
APPLICANTAND:
BELANDRA PTY LTD
FIRST RESPONDENTLARBERG PTY LTD
SECOND RESPONDENTWEBB LABOUR HIRE PTY LTD (trading as ESP TECFORCE)
THIRD RESPONDENTTASMAN GROUP SERVICES PTY LTD
FOURTH RESPONDENTTASMAN GROUP HOLDINGS PTY LTD
FIFTH RESPONDENTSEAN PATRICK CARROLL
SIXTH RESPONDENT
JUDGE:
NORTH J
DATE:
29 AUGUST 2003
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
THE PROCEEDING
THE FACTS
THE RELEVANT STATUTORY PROVISIONS
WAS BELANDRA AN EMPLOYER?
Was Belandra an actual employer – Was there an absolute termination of employment by Belandra?
Was Belandra an actual employer - Workcover employees
Was Belandra usually an employer?DID BELANDRA REFUSE TO EMPLOY THE BELANDRA EMPLOYEES?
WAS THERE AN ALTERATION TO THE POSITION OF AN EMPLOYEE OF BELANDRA TO THE PREJUDICE OF THAT EMPLOYEE.
WAS A REASON FOR BELANDRA’S CONDUCT THAT THE BELANDRA EMPLOYEES WERE ENTITLED TO THE BENEFIT OF AN AGREEMENT?
Was there an existing entitlement to the benefit of the 2000 agreement in September 2001?
The causal link
WAS A REASON FOR BELANDRA’S CONDUCT THAT THE BELANDRA EMPLOYEES WERE MEMBERS OF THE UNION?
Introduction
Statutory Background and Context
The Scope of s 298L(1)(a)
International Law and the Law of other JurisdictionsIntroduction
Australia’s obligations under international law.
United Kingdom Litigation.
The European Court of Human Rights.
Canada
Conclusion – The Meaning of Membership
REASON FOR THE CONDUCT - THE FACTS83
Conclusion – The Reason for the Conduct 99
REMEDY99
THE PROCEEDING
The applicant is an organisation registered under the Workplace Relations Act 1996 (Cth) (the Act), whose members are employees in the meat industry. In this application, the applicant alleges that Belandra Pty Ltd (Belandra), the first respondent, which carried on the business of processing meat, refused to employ certain employees and/or altered the position of those employees to their prejudice, for the reason that the employees were members of the applicant, and/or for the reason that the employees were entitled to the benefit of an industrial agreement, contrary to ss 298K(1)(c) and (d), and ss 298L(1)(a) and (h) of the Act.
Pursuant to s 298U of the Act, the applicant seeks the imposition of penalties against Belandra for breaches of the Act, and also seeks restraining orders and orders for compensation. It was agreed by the parties that the Court would initially determine whether Belandra had acted in breach of the Act as alleged, and, if that was found to be the case, the Court would then hear and determine issues relating to appropriate relief. As the case was ultimately argued at trial, the applicant did not allege any breach of the Act by the other respondents. They were joined as parties to the proceeding so that, if the Court found Belandra had breached the Act as alleged, the applicant could seek orders against them where necessary to make effective any orders made against Belandra. The first, fourth and fifth respondents were represented separately to the second and sixth respondents, and the third respondent. However, as they all adopted each others’ arguments, the arguments raised by any of the respondents are attributed in these reasons to all respondents.
These reasons for judgment determine only whether Belandra acted in breach of s 298K(1)(c) and (d) of the Act as alleged. This question raises a number of issues of law concerning the proper interpretation of s 298K and s 298L, and several contentious issues of fact. The general factual setting is largely uncontentious and the following description represents my findings of fact in relation to those circumstances. The contentious legal and factual issues will be dealt with in due course.
THE FACTS
In 1996, Belandra commenced a beef slaughtering facility with associated operations at an abattoir at 30 Industry Park Drive, Brooklyn in the State of Victoria (the Brooklyn site). The Brooklyn site was owned by a related company, Industry Park Pty Ltd (Industry Park). As at 20 June 2001, Belandra employed about 160 people in that operation. The major customer of the beef slaughtering operation was Coles Supermarkets Australia Pty Ltd (Coles Supermarkets). The arrangement was that Coles Supermarkets supplied the stock and Belandra provided slaughtering services. Mr Sean Carroll, the sixth respondent, was employed by Belandra as the works manager at the Brooklyn site. It was accepted by the parties that all but two of the production employees of Belandra who were eligible to be members of the applicant, were in fact members of the applicant. The terms and conditions of employment of the production employees were governed by the Belandra Pty Ltd and the Australasian Meat Industry Employees’ Union Victorian Meat Processing Agreement 2000 (the 2000 Agreement), which was certified by the Australian Industrial Relations Commission on 20 July 2000.
Four other operations were conducted at the Brooklyn site. Three of these were conducted by companies controlled either by Mr Joseph Catalfamo or Mr Gilbert Cabral and his family. The fourth, a boning operation, was operated by Collinsons, an unrelated company. Belandra Trading Pty Ltd (Belandra Trading) conducted a small stock slaughtering operation and employed about 200 people for that purpose. EM Processors Pty Ltd (EM Processors) conducted a beef boning operation and employed about 110 employees for that purpose. The major work of this operation was the boning of the beef slaughtered by Belandra for Coles Supermarkets. Finally, EM Packers Pty Ltd (EM Packers) employed about 70 people in connection with lamb cutting, and 60 people in connection with beef boning, in another boning room at the Brooklyn site.
The affairs of Belandra are controlled by Mr Catalfamo, a director and majority shareholder of the company. Belandra Trading and Industry Park are wholly, or almost wholly, beneficially owned by Belandra, and thus, Mr Catalfamo also controls those companies. Mr Cabral is the managing director of Belandra, and also of Belandra Trading, EM Packers and EM Processors. The other two directors of Belandra are Mr Frank Oravec, also the general manager of Belandra, and Mr Lode. Mr Cabral was born in 1960 and has had about twenty years experience in the meat industry. Mr Catalfamo was born in 1948. His experience and relationship with the Cabral family was described in evidence by him as follows:
‘I had extensive experience, having been involved in the industry since the early 60s, where I started off as a butcher, apprentice. I had grown a network of people. I was – my credibility was second to none in the industry. When I was excluded from the export industry [for ten years, as a result of findings made by the Woodward Royal Commission] I went on to start rebuilding my retail chain of butcher shops which [I] had, right throughout the 70s. I could not participate in the export industry, hence I passed on some of –Mr Cabral’s father, Mr Gilbert Cabral’s father, had been working for me as an accountant since 1980. We had built a very strong relationship. His son Gilbert came to work for me to run Richmond Ice in 1985 or thereabouts or 86. He did a fantastic job. He wanted to progress, he was a young man, so I channelled him, basically directed him into the export stream and basically gave him advice, gave him contacts, guaranteed – some guarantees for him by way of – negotiated leases for him because of my experience to a point where I knew that one day I would be cleared and I could participate again in that business. That’s basically the whole story.’
Mr Catalfamo was, by reason of age, experience, and family relationship, a kind of mentor for Mr Cabral. It was clear from the oral evidence which he gave at the trial, that he was the dominant voice in relation to the affairs of Belandra. It was not in contention that Mr Catalfamo effectively made the decisions relevant to this case, albeit after consultation with Mr Cabral, and also with the other directors of Belandra.
On 20 June 2001, a fire destroyed the Brooklyn site except for the boning room operated by EM Processors. The employees of EM Processors resumed work within a few days of the fire. The employees of Belandra, and of Belandra Trading and EM Packers, were dismissed because there was no work for them to do.
However, Belandra intended, at that time, to restart the slaughtering operation, and to reemploy the work force. Mr Catalfamo told this to officials of the applicant at a meeting held at the Brooklyn site on 22 June 2001, two days after the fire. This was confirmed by Mr Oravec, in the course of a hearing in the Australian Industrial Relations Commission on 12 July 2001, in a dispute related to the boning operation of EM Processors:
‘Now, there is no question that all these people of EMP, Export Meat Packers, will be re-employed as soon as the company starts that activity. That has been promised and that will be done. The same as the people who will be re-employed from Bilandra [sic] Proprietary Limited, Bilandra [sic] Trading Proprietary Limited. It is just a question, where do we re-employ them because we have no facility; they are gone in the fire.’
Belandra’s intention to reemploy its production work-force is reflected in its decision to withhold severance payments at the date of dismissal. Such a course was permitted under s 2.8 of the 2000 Agreement. The relevant paragraphs of the 2000 Agreement provided:
‘2.8.1 This clause shall apply where the employer decides to close down permanently all or part of an operation or calls for voluntary redundancies.
…
2.8.3 In the event that employees are to be terminated as prescribed in clause 2.8.1 the following payments shall be made:
(a)two weeks payment in lieu of notice
(b)two weeks pay for each year of completed service
(c)pro rata payment for each completed month of an uncompleted year
provided that such payment shall not exceed twenty six (26) weeks of ordinary pay, and such payments shall be at ordinary rates of pay as defined in clause 6.3 (Long Service Leave).
2.8.4 In the event that employees are terminated on the basis they will be re-employed and are subsequently not re-employed within eight (8) months, this clause shall apply with an additional payment of 10% of the amount payable under clause 2.8.3.’ [emphasis added]
Then, the event which is at the centre of this case occurred. Around mid-September 2001, Mr Catalfamo, in consultation with Mr Cabral and Mr Oravec, decided that Belandra would not resume operations and would not reemploy the production employees who had worked for Belandra immediately prior to the fire (the Belandra employees). In his affidavit sworn on 4 September 2002, Mr Catalfamo stated that his reasons for that decision involved a change in business direction and strategy. He stated that he came to realise that he and the other directors of Belandra no longer had the production expertise to oversee a meat production operation and would do better to focus on other areas such as marketing or research. Further, escalating costs meant that Belandra faced insolvency if it did not change its way of operation. The applicant’s opposing contention is that an operative reason for Mr Catalfamo’s decision was that the Belandra employees were members of the applicant and/or the employees were entitled to the benefit of the 2000 Agreement. Mr Catalfamo’s reasons for deciding not to reemploy the Belandra employees will be examined in some detail later in these reasons.
It followed from Belandra’s decision to not reemploy the Belandra employees that Belandra was required to pay those employees their outstanding severance entitlements, together with an additional payment of 10 per cent of that amount, in order to comply with the requirements of cl 2.8.4 of the 2000 Agreement. This was done in March 2002.
At about the time the final severance payments were made, several other significant events occurred.
First, Mr Catalfamo and Mr Cabral, through various corporate vehicles, acquired another abattoir site located at Kyle Road, Altona (the Altona site). The Altona site was an asset of Tasman Group Services Pty Ltd (TGS) (then known as SBA Foods Pty Ltd), the fourth respondent. Tasman Group Holdings Pty Ltd (TGH) (then known as Tasman Group Services Pty Ltd), the fifth respondent, acquired all of the shares in TGS on 1 March 2002. Mr Catalfamo and Mr Cabral each hold 50 per cent of the shares in TGH. They had been negotiating for the acquisition of the assets and business of SBA since November 2000. The acquisition was delayed when the bank, as a result of the uncertainty caused by the fire, refused to provide finance for the transaction. Following the fire at the Brooklyn site, Belandra contracted with other abattoirs to slaughter cattle in order to continue to meet the Coles Supermarket contract. Although Altona had not operated as an abattoir since 1999, Mr Catalfamo and Mr Cabral decided that TGS would reopen the Altona site in order to provide slaughtering facilities for the Belandra stock.
Second, Mr Catalfamo and Mr Cabral decided that TGS would not manage the slaughtering operation at the Altona site. Rather, it would engage a management company for that purpose. In late March 2002, Mr Cabral spoke to Mr Carroll about undertaking the management of the proposed slaughtering operation at the Altona site. It will be recalled that Mr Carroll had been the works manager for Belandra prior to the fire. A few days after the fire, on 24 June 2001, his employment had been transferred to Industry Park, and, in that capacity, he had overseen the beef slaughtering carried out for Belandra by external contractors. Within six weeks, Mr Carroll and Mr Cabral reached an oral agreement that Mr Carroll would acquire and operate a management company to run the slaughtering operation for Belandra at Altona. On 17 May 2002, Mr Carroll acquired all the shares in Larberg Pty Ltd (Larberg), the second respondent, for this purpose. Under the agreement, Larberg would supply management, supervisory and production staff, and would pay all necessary registration and licence fees. TGS was to provide the premises, including the slaughtering facilities, and meet the running costs of the operation, such as electricity and water. TGS was to pay Larberg a fee per beast processed.
Following the making of the oral agreement, Larberg proceeded to arrange for the staffing of the operation. It engaged fourteen permanent employees, including a production manager, a quality assurance manager, slaughter floor supervisors, and load out supervisors. All fourteen had previously been employed by Belandra or Belandra Trading at the Brooklyn site. Larberg obtained quotes from two labour hire companies for the provision of production workers. On 12 June 2002, Webb Labour Hire Pty Ltd (trading as ESP Tecforce) (ESP Tecforce), the third respondent, provided a quote to Larberg specifying separate hourly rates, inclusive of statutory charges, for the supply of slaughtermen and labourers. Larberg accepted the quote. It was arranged that each afternoon Larberg would notify ESP Tecforce of its labour requirements for the following day. On 1 July 2002, slaughtering operations began at Altona under these arrangements, and in the following months, ESP Tecforce supplied about 100 workers for the operation. Most of the workers supplied by ESP Tecforce had previously worked for Belandra at Brooklyn. Although not all the workers supplied were engaged under Australian Workplace Agreements (AWA’s), ESP Tecforce regarded AWA’s as the most appropriate industrial instrument for the operation. The rates quoted by ESP Tecforce to Larberg could not be maintained if ESP Tecforce had to engage the production workers on the terms of the 2000 Agreement.
Thus, from June 2001 to July 2002 some things changed and some things remained the same. At all times, Belandra retained the contract to supply beef to Coles Supermarkets. At all times, the people who managed and supervised the beef slaughtering operation were essentially the same people. At all times, the people who worked on the slaughter floor were essentially the same people. Therefore, the supplier remained the same, the product remained the same, the people who managed the production remained the same, the people who produced the product remained the same, and the customer remained the same. The provider of the slaughter facilities remained one or other company controlled by Mr Catalfamo, or by Mr Catalfamo and Mr Cabral. What changed over that period was that the people who worked on the slaughter floor were employed by another employer. As a result they were no longer employed under the 2000 Agreement and, as a further result, the applicant no longer had the role of collectively representing those employees. The applicant alleges that, whilst Belandra retained the same essential operation, it arranged its affairs to rid the workplace of the influence of the applicant, and of the need to comply with the 2000 Agreement. In so doing, the applicant alleges, Belandra engaged in conduct in breach of s 298K(1)(c) and (d) for reasons proscribed in s 298L(1)(a) and (h).
THE RELEVANT STATUTORY PROVISIONS
It is convenient now to set out the statutory provisions which bear upon the questions raised in this case. The emphasised provisions are those upon which the applicant relies to ground the liability of Belandra.
‘298K(1) [Prohibited reasons for certain conduct by an employer] An employer must not, for a prohibited reason, or for reasons that include a prohibited reason, do or threaten to do any of the following:
(a)dismiss an employee;
(b)injure an employee in his or her employment;
(c)alter the position of an employee to the employee’s prejudice;
(d)refuse to employ another person;
(e)discriminate against another person in the terms or conditions on which the employer offers to employ the other person.
298L(1) [Interpretation] Conduct referred to in subsection 298K(1) or (2) is for a prohibited reason if it is carried out because the employee, independent contractor or other person concerned:
(a)is, has been proposes to become or has at any time proposed to become an officer, delegate or member of an industrial association; or
(b)is not, or does not propose to become, a member of an industrial association; or
(c)in the case of a refusal to engage another person as an independent contractor:
(i)has one or more employees who are not, or do not propose to become, members of an industrial association; or
(ii)has not paid, or does not propose to pay, a fee (however described) to an industrial association; or
(d)has refused or failed to join in industrial action; or
(e)in the case of an employee – has refused or failed to agree or consent to, or vote in favour of, the making of an agreement to which an industrial association of which the employee is a member would be a party; or
(f)has made, proposes to make or has at any time proposed to make an application to an industrial body for an order under an industrial law for the holding of a secret ballot; or
(g)has participated in, proposed to participate in or has at any time proposed to participate in a secret ballot ordered by an industrial body under an industrial law; or
(h)is entitled to the benefit of an industrial instrument or an order of an industrial body; or
(i)has made or proposes to make any inquiry or complaint to a person or body having the capacity under an industrial law to seek:
(i) compliance with that law; or
(ii) the observance of a person’s rights under an industrial instrument; or
(j)has participated in, proposes to participate in or has at any time proposed to participate in a proceeding under an industrial law; or
(k)has given or proposes to give evidence in a proceeding under an industrial law; or
(l)in the case of an employee, or an independent contractor, who is a member of an industrial association that is seeking better industrial conditions – is dissatisfied with his or her conditions; or
(m)in the case of an employee or an independent contractor – has absented himself or herself from work without leave if:
(i)the absence was for the purpose of carrying out duties or exercising rights as an officer of an industrial association; and
(ii)the employee or independent contractor applied for leave before absenting himself or herself and leave was unreasonably refused or withheld; or
(n)as an officer or member of an industrial association, has done, or proposes to do, an act or thing for the purpose of furthering or protecting the industrial interests of the industrial association, being an act or thing that is:
(i)lawful; and
(ii)within the limits of an authority expressly conferred on the employee, independent contractor or other person by the industrial association under its rules.’
[emphasis added]
The onus of proof is dealt with in s 298V as follows:
‘298V If:
(a)in an application under this Division relating to a person’s or an industrial association’s conduct, it is alleged that the conduct was, or is being, carried out for a particular reason or with a particular intent; and
(b)for the person or industrial association to carry out the conduct for that reason or with that intent would constitute a contravention of this Part;
it is presumed, in proceedings under this Division arising from the application, that the conduct was, or is being, carried out for that reason or with that intent, unless the person or industrial association proves otherwise.’
WAS BELANDRA AN EMPLOYER?
Only the conduct of an employer attracts the prohibition in s 298K(1) of the Act. The conduct about which the applicant complains occurred in September 2001 when, so it is alleged, Belandra refused to employ the Belandra employees, and/or altered their position to their prejudice. The first question, then, is whether Belandra was an employer at that time.
Was Belandra an actual employer – Was there an absolute termination of employment by Belandra?
The applicant contends that, in September 2001, Belandra remained an employer of the workers employed immediately before the fire because the termination of employment, which occurred in June 2001, was not an absolute termination. At the time, Belandra intended to reemploy the workforce, and it relied on cl 2.8.4 of the 2000 Agreement to defer payment of the severance payments. Those payments were not made until the expiration of the eight month limit stipulated in cl 2.8.4, which occurred in about early March. The applicant argues that, until the severance payments were made, there remained a legal connection between Belandra and those workers which constituted Belandra an employer for the purposes of s 298K(1).
I do not accept this argument because it runs counter to the terms of, and the concept contained in, cl 2.8.4. The clause stipulates the amount of the severance payment, and then fixes the latest time for payment in the circumstance that, “employees are terminated on the basis that they will be re-employed and are subsequently not re-employed” [emphasis added]. The clause addresses a situation in which the employment of the employees has been terminated, that is to say, has been brought to an end. The fact that the terminations are on the basis that the employees will be reemployed does not make the terminations any less absolute. Rather, it postulates that the employment relationships are brought to an end. New employment relations are created if the employees are reemployed within the eight month period.
A further indication that the termination referred to in cl 2.8.4 is an absolute termination of the employment relationship is that the clause provides for a severance payment to be made where there is no reemployment within eight months of the termination. The clause, thus, provides for a situation in which the initial termination of employment is final, because it is not followed by any further employment.
Was Belandra an actual employer - Workcover employees
The applicant argued that Belandra remained an actual employer until after February 2002 because Belandra continued to employ a number of employees who were receiving WorkCover payments at the time of the fire. Their employment was not terminated immediately after the fire.
This argument involves both a factual and a legal issue. In relation to the factual issue, Mr Cabral stated, in his affidavit sworn on 4 September 2002, that the WorkCover employees were not terminated in June 2001 when the rest of the Belandra employees were terminated. In cross-examination he sought to resile from that position. He said that the WorkCover employees were terminated, but Belandra kept paying weekly payments after meeting with WorkCover officers. He said that although the employees were terminated, Belandra still “managed their files”. He agreed that the WorkCover recipients were not paid their severance entitlements until their WorkCover payments ended. In some cases that was after February 2002. Under cl 2.8.3 of the 2000 Agreement severance payments are payable on termination. I infer that Belandra intended to comply with the terms of the 2000 Agreement. On the basis of this evidence, I find that, on the balance of probabilities, Belandra continued to be the employer of a number of persons in receipt of WorkCover payments from the time of the fire until after February 2002.
In relation to the legal issue, Mr Borenstein SC, who appeared with Mr Armstrong for the applicant, sought to rely on the status of Belandra as an employer of the WorkCover employees as the basis of the allegation of a contravention of s 298K(1) by Belandra in relation to the non-WorkCover employees. The continued employment of the WorkCover employees, it was contended, qualified Belandra as an actual employer for the purposes of s 298K(1).
In response, the respondents submitted that “the operation of s 298K(1) must relate to the position of employer as employer vis-a-vis the people who are said to be the employees affected by the decision … the position of the WorkCover employees does not make Belandra an actual employer in respect of those former employees as at September 2001”
The submission of the respondents might be correct if the case was brought under s 298K(1)(a) and it was alleged that an employer had dismissed an employee for a prohibited reason, or under s 298K(1)(b) and it was alleged that an employer had injured an employee in his or her employment. But, insofar as the case is brought under s 298K(1)(d), the argument cannot be sustained. This subsection is concerned with the refusal by an employer to employ another person. The other person cannot be an existing employee, and there is no requirement that the other person was previously an employee of the employer. Thus, where s 298K(1)(d) is relied upon, the applicant must establish that the respondent is an employer, but the contravening conduct is not necessarily conduct directed to an existing employee. It is conduct directed to persons who are refused employment. Consequently, the fact that Belandra continued to employ the WorkCover employees made it an actual employer for the purposes for s 298K(1)(d), even though the contravention alleged was not conduct directed against those employees.
Was Belandra usually an employer?
Section 4(1) of the Act, relevantly, provides that;
“In this Act, unless the contrary intention appears:
‘employer’ includes:
(a)a person who is usually an employer;”
The applicant argued that, even if Belandra was not an actual employer when the alleged contravening conduct occurred, then Belandra was usually an employer at that time within the meaning of s 4(1). The respondents answered with two contentions – first, that the extended definition did not apply to s 298K, and second, and alternatively, that Belandra was not, on the facts, usually an employer at the time of the alleged contravening conduct.
As to the first contention, Mr Parry SC, who appeared with Mr Mueller, for the first, fourth and fifth respondents, relied on the speech of the Attorney-General, made on the second reading of the Commonwealth Conciliation and Arbitration Bill in 1910 which introduced the extended definition of employee, as follows:
‘Clause 2 amends the definition of “employé” to include “any person whose usual occupation is that of employé in any industry.” That is to meet the case of unemployed persons in an industry, since it is conceivable that there may be a dispute in an industry where in fact there are no contractual relations existing at the time.’ [Australia, House of Representatives, Debates, vol 55, 1910, p 744]
Mr Parry also relied on an exchange in Senate discussions in Committee, following the second reading of the Conciliation and Arbitration Bill 1952 (Cth), which introduced the extended definition of “employer” as follows:
‘Senator SHEEHAN (Victoria) [1.2 a.m.]:-Will the Minister inform me of the reason for the alteration of the interpretation of the word “employer”. The definition of employer in the principal act is –
“Employer” means any employer in any industry and includes a club.
The words proposed to be added to that definition after the word “includes” are –
Any person who is usually an employer in an industry and also includes
Will the Minister explain the significance of the addition of those words?
Senator O’SULLIVAN (Queensland- Minister for Trade and Customs) [1.3 a.m.]. – It is proposed to add those words to the definition of employer to bring it into line with the definition of employee. The Registrar of the Commonwealth Court of Conciliation and Arbitration has held that an association that makes application for registration as an association of employers under section 70A may consist only of persons who are actually employing labour at the time of the application. The amendment was suggested by employers.
Senator SHEEHAN – The addition of the proposed words will mean that a person who is not in business at the time of the application may be deemed to be an employer?
Senator O’SULLIVAN. – That is so.’
[Australia, Senate, Debates, vol 217, 1952, p 1511]From these sources, Mr Parry argued that Parliament intended the extended definition of employer to apply only to those provisions of the Act which deal with industrial disputes and the regulation of organisations. So viewed, Parliament has expressed a ‘contrary intention’ for the purposes of s 4(1) of the Act.
On the basis that the Committee proceedings may be taken into account (see s 15AB Acts Interpretation Act 1901 (Cth) but note the cautionary comments of Dawson J in Mills v Meeking and Anor (1990) 169 CLR 214, at 236-7), this legislative history does not demonstrate that the definition of employer was to be limited in the way suggested.
Whilst the Attorney-General explained to Parliament in 1910 that the extended definition of employee would impact on the provisions concerning industrial disputes, he did not suggest that the application of the extended definition was limited to those provisions. The definition was placed in the general interpretation section of the Act. Indeed, in 1952 the Minister accepted that the extended definition of employee applied to the provisions of the Act dealing with organisations. He said that the reason for extending the definition of employer was to ensure that it applied to those provisions and, thus, to ‘bring it into line with the definition of employee’. So, even though the Attorney-General in 1910 made no reference to the fact, the Minister in 1952 had the view that the extended definition of employee applied to other provisions of the Act such as those which regulated organisations.
The more recent legislative history suggests that the extended definition of employee contained in s 4(1) was intended to apply to s 298K(1). Part XA of the Act, which contains s 298K(1), was inserted in 1996. In s 298B certain definitions are provided for the purposes of Part XA. Some terms defined in s 298B are also terms defined in s 4(1), however, they are given a different meaning where that is required for the purposes of Part XA. For instance, the terms ‘industrial action’ and ‘industrial dispute’ are defined differently in s 298B, from s 4(1). The fact that the word ‘employer’ has not been given a special meaning under s 298B is an indication that the general definition is meant to apply to Part XA. Another indication is that s 298A, which sets out the objects of Part XA, specifically incorporates the general objects of the Act set out in s 3. Section 3 refers to employers and employees. These references apply generally for the purposes of the entire Act. The extended definition certainly applies to these references. Where Parliament meant words in Part XA to have a different meaning from the meaning of the words elsewhere in the Act, Parliament expressly provided for different meanings. In the absence of express reference to a different meaning for the purpose of Part XA it should be concluded that Parliament meant the words to have the same meaning as elsewhere in the Act.
Finally, in principle, there is good reason for the extended definition to apply. Section 298K(1) is found in Part XA which is concerned with ‘freedom of association’. The objects of the Part are set out in s 298A and include:
‘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.’
The provisions, thus, seek to ensure that certain basic freedoms are available to all participants in the workplace. The objects of the part are advanced if the scope of the part is interpreted as reaching beyond persons who are presently employers to persons who are usually employers.
The operation of the extended definition in the context of s 298K(1), or its predecessor provisions, has been considered in several cases. Linehan v Northwest Exports Pty Ltd (1981) 57 FLR 49 (Linehan) involved employment in the meat industry. In order to allow for seasonal shutdowns and also for the variable supply of stock during the season, employment in the meat industry exhibited some special characteristics. A category of employment called regular daily hire developed. Such employment lasted for a day at a time. At the end of each day of employment, the employment relationship terminated but the engagement as a regular daily hire worker continued until terminated by notice. Whilst the engagement lasted, employees were obliged to attend each day unless notified that they were not required to attend. A typical example of a clause in an award providing for regular daily hire can be seen in Linehan at 58. In Linehan, the employer, some time after it had terminated the employment of a regular daily hire employee, terminated the engagement of the employee for a prohibited reason. The question arose whether the employer had altered the position of the employee to the prejudice of the employee contrary to the equivalent of s 298K(1)(c) (which, at that time, made contravention a criminal offence). As the employment had been terminated before the engagement was terminated, and hence the former employee was no longer an existing employee, contravention of the section could only be established upon application of the extended definition of employee. Ellicott J held in Linehan that there had been a contravention in those circumstances, but there was no discussion about the extended definition. The case demonstrates one instance in which conduct contrary to the freedom of association objects of the Act would have been without remedy if the extended definition had not been available.
Then, in obiter dicta in Re: Australian Meat Industry Employees’ Union And: R J Gilbertson (Queensland) Pty Ltd (unreported, Gray J, 8 December 1988) Gray J addressed the issue, at par 25, as follows:
‘With respect to the third group of charges, there was argument about the meaning of the phrase “alter his position to his prejudice” in s.5(1) of the Act. Counsel for the defendant referred to judgments in which examples were given of acts which might constitute alteration of an employee's position to his or her prejudice. … Each refers to an act done to a person within the confines of a subsisting employment relationship, and by the other party to that relationship. Despite these examples, I am not persuaded that the phrase “alter his position to his prejudice” is limited to such situations. Having regard to the extended definitions of “employee” and “employer” in s.4(1) of the Act, and to the apparently deliberate choice of a phrase which does not contain a reference to “employment” (as does the phrase “injure him in his employment”), I am of the view that it would be possible for a person usually an employer in an industry to commit an offence by altering the position of a person usually an employee in the same industry to the prejudice of the latter person, by reason of one or more of the proscribed circumstances found in s.5(1) of the Act. I note that, in Linehan v. Northwest Exports Pty. Ltd. (1981) 57 FLR 49, at pp 61-62, Ellicott J. found that depriving a person of the status of regular daily employee, under an award provision similar to that found in s.4 of the Award, involved an alteration of that person’s position to his prejudice. As I have already pointed out, Ellicott J. found that the person concerned had not been dismissed, because his employment had terminated at the end of the working day concerned. Deprivation of the status of regular daily employee may be an example of altering the position of a person with whom there is no longer any employment relationship subsisting. Another example might be in circumstances where an employer first dismisses an employee, e.g. by reason of membership of an organization, and afterwards places that person’s name on a blacklist, thereby rendering it more difficult for him or her to gain employment elsewhere in the same industry. If the person’s usual occupation is that of an employee in the industry concerned, it is easy to see that his or her position has been altered to his or her prejudice. This does not mean that any employer in that industry, refusing to engage that person, would commit an offence, even if the refusal resulted from a proscribed circumstance. A refusal to employ would not in itself alter the position of the person whose usual occupation was that of an employee in a particular industry. Such a person would remain in the position of being unemployed. The employer causing the name to be blacklisted, however, would commit an offence; the act of that employer would change the position of the other person, by making it more difficult for him or her to gain employment.’ [emphasis added]
The operation of the extended definition can be seen in another context in The Queen v Findlay & Anor; Ex parte The Commonwealth Steamship Owners’ Association and others (1953) 90 CLR 621 (Findlay). In this case the extended definition was applied to ensure that the freedom of association objects of the Act were achieved. The issue was whether a claim by wharf clerks for attendance money could found the jurisdiction of a conciliation commissioner. That, in turn, depended on whether the claim was an ‘industrial matter’. Such a matter was defined in s 4 of the Conciliation and Arbitration Act 1904-1952 (Cth) as one ‘pertaining to the relations of employers and employee’ and included, ‘(f) the question whether monetary allowances shall be made by an employer in respect of any time when the employee is not actually working’. The attendance money claimed was to be payable when a wharf clerk attended at the place of engagement, but was not given employment. The ship owners argued that the claim could not pertain to the relations of employers and employees because it was a claim in respect of a period of no employment, and was payable because of the absence of any relationship of employer and employee. Dixon CJ, with whom the other members of the court agreed, said at 631:
‘The specific reference in par. (f) of the definition of “industrial matter” to monetary allowances in respect of time when an employee is not actually working cannot be ignored. No doubt this paragraph was included in order to cover the case of “permanent” employees remunerated according to time actually worked. But it recognizes that payment for idle time lost is an industrial matter and there is no limit of place or circumstance in the words used. Once again the extended definitions of “employer” and “employee” must be applied, and that means that an existing relation of master and servant at the time the employee was not actually working cannot be essential to par. (f).’[emphasis added]
Based on the history of the section, the structure of the Act as a whole, and the referred to authorities, the extended definition of employer does apply to s 298K.
The issue, then, is whether the facts of the present case demonstrate that Belandra was ‘usually an employer’? Mr Parry argued that in order to qualify as ‘usually an employer’ there must be some proximity of employment. The person must have either been an actual employer just prior to the time in question, or must have employment of workers in prospect. He contended that Belandra had not been an actual employer since the fire in June 2001, and therefore, at the time of the alleged breach in September 2001, it had not been an actual employer for about two and a half months. Further, Belandra did not intend to be an employer in the future. It had no managers or supervisors, and it did not have any premises. In that sense, he submitted, Belandra had no operation in which it could employ people.
Whether a person is usually an employer is a question of fact to be determined in the light of all the circumstances in each case. There is no formula appropriate in all cases which can be used to answer the question. As to a past employment relationship, it may be relevant to know how long ago the person ceased to be an actual employer or to understand why the person ceased to be an actual employer. As to future employment, it may be relevant to know when such employment is to commence or resume, and the circumstances of any delay in commencing or resuming employment.
The unusual circumstances of the present case demonstrate how difficult it would be to reduce the enquiry to some generally applicable formula. In the present case, the inability of Belandra to conduct operations and to employ people resulted from the occurrence of the fire. The cessation of employment was forced upon Belandra because the fire destroyed the premises in which the work was done. If it had not been for the fire, Belandra would have continued to employ its workforce to operate the slaughter floor at Brooklyn. Significantly, however, immediately after the fire Belandra intended to reemploy the workforce. That was the reason Belandra delayed payment of the severance entitlements, as it was entitled to do. The evidence of Mr Catalfamo was clear. He intended to reemploy the workforce and to that end he took energetic steps to make this possible. For instance, he described his efforts to secure the disused abattoir site at Kyle Road, Altona, as a temporary workplace as follows:
‘in the days after that [the fire] we tried everything with the Japanese [the previous owner] to get hold of Altona. The Commonwealth Bank did what they had to do, but we went directly to KPMG who were agents for the Japanese seeking a very urgent meeting and putting our case forward to the Japanese to lease Altona to us for a period of time until we could re-organise and regroup but they wouldn’t hear of it. It was either settlement or nothing.’
Mr Catalfamo also described intense efforts taken in the weeks following the fire to restore the Brooklyn site and to negotiate with insurers to reinstate the premises. These steps were taken as part of a plan to restart production with the previous workforce. During this period there is no question that Belandra was usually an employer. On the approach suggested by Mr Parry, Belandra had recently been an employer and, so far as Belandra’s plans were concerned, reemployment was in prospect.
Then the situation changed. From September 2001, no longer was reemployment in prospect. The reason was that Belandra had altered its plans and decided not to reemploy the workforce. If Belandra then ceased to be an employer, that result came about as a consequence of its decision not to reemploy the workforce. That decision is the conduct which forms the basis of the applicant’s complaint of contravention of s 298K(1).
The argument pressed by the respondents seeks to characterise Belandra’s status as no longer usually an employer by reference to the circumstances prevailing after the alleged contravening conduct occurred. It seeks to rely on the situation brought about as a result of the alleged contravening conduct. However, the relevant time for the determination of Belandra’s employer status is immediately before the alleged contravening act takes place. Immediately before the decision not to reemploy the workforce was made, Belandra was usually an employer by reference to its intention to reemploy the workforce in the future. Therefore, immediately prior to Belandra deciding not to reemploy its workforce, it was usually an employer within the meaning of s 4(1) of the Act.
DID BELANDRA REFUSE TO EMPLOY THE BELANDRA EMPLOYEES?
The respondents then argued that, even if Belandra was an employer under the Act, Belandra did not refuse to employ the Belandra employees within the meaning of s 298K(1)(d). They submitted that there can be no such refusal unless a vacancy exists in the workforce which can be filled by the engagement of the person in question. For this proposition, the respondents relied on three cases, namely, Fraser v Fletcher Construction Australia Ltd (1996) 70 IR 117 (Fletcher); Maritime Union of Australia v Burnie Port Corporation Pty Ltd (2000) 101 IR 435 (Burnie); and Construction, Forestry, Mining and Energy Union v BHP Steel (AIS) Pty Ltd [2000] FCA 1008 (CFMEU v BHP Steel). They contended that there was no vacancy available to be filled in September 2001 because Belandra had decided not to employ anyone thereafter. Belandra had not refused to employ the former workforce. There were just no vacancies for Belandra to fill.
There are at least two available constructions of the expression “refuse to employ” as used in s 298K(1)(d) in relation to vacancies. On one approach, it can be said that there is no refusal to do something if that result cannot be achieved. A person cannot refuse to do that which cannot be done. If there is no vacancy, then there can be no refusal to employ. The respondents argued for this approach (the former construction). Alternatively, it can be said that even if an outcome is not available, the decision not to provide it is nonetheless a refusal to provide the outcome. That is, whether the outcome can be achieved should be considered separately from whether there was a decision not to achieve the outcome. Thus, there can still be a refusal to employ even if there is found to be no available vacancy (the latter construction).
I certify that the preceding two hundred and forty-four (244) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North j.
Associate:
Dated: 29 August 2003
Counsel for the Applicant:
Mr R Redlich QC
Mr L Armstrong
Solicitor for the Applicant:
Gill Kane & Brophy
Counsel for the 1st, 4th, & 5th Respondents:
Mr F Parry
Mr J D’Abaco
Solicitor for the 1st, 4th, & 5th Respondents:
Arnold Bloch Leibler
Counsel for the 2nd and 6th Respondents:
Mr A McNab
Solicitor for the 2nd and 6th Respondents:
Deacons
Counsel for the 3rd Respondent:
Mr R Manuel
Solicitor for the 3rd Respondent:
EMA Legal
Date of Hearing:
30 September 2002 – 4 October 2002
Counsel for the Applicant:
Mr H Borenstein SC
Mr L Armstrong
Solicitor for the Applicant:
Gill Kane & Brophy
Counsel for the 1st, 4th, & 5th Respondents:
Mr F Parry SC
Mr B Mueller
Solicitor for the 1st, 4th, & 5th Respondents:
Blake Dawson Waldron
Counsel for the 2nd and 6th Respondents:
Mr A McNab
Solicitor for the 2nd and 6th Respondents:
Deacons
Counsel for the 3rd Respondent:
Mr Healy
Solicitor for the 3rd Respondent:
EMA Legal
Date of Hearing:
11 – 20 March 2003
Date of Judgment:
29 August 2003
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