Blair v Australian Motor Industries Ltd

[1982] FCA 145

Re: WAYNE DOUGLAS BLAIR
And: AUSTRALIAN MOTOR INDUSTRIES LIMITED
V. No. 13 of 1981
Industrial Law
3 IR 176

COURT

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIAN DISTRICT REGISTRY
INDUSTRIAL DIVISION
Evatt J.

CATCHWORDS

Industrial Law - summons against employer alleging an offence in relation to "injuring an employee in his employment" or "altering his position to his prejudice" - meaning of "injuring an employee in his employment" or "altering his position to his prejudice" - meaning of employee "absenting himself from work". Conciliation and Arbitration Act 1904 s.5(1)(e).

Wayne Douglas Balir -v- Australian Motor Industries Limited (V. Nos. 13 and 14 of 1981)

HEARING

SYDNEY

#DATE 28:7:1982

ORDER

The information and summons herein be dismissed.

JUDGE1

Section 5(1)(e) of the Conciliation and Arbitration Act (the Act)1904 provides that :-

(1) An employer shall not dismiss an employee, or injure him in his employment, or alter his position to his prejudice, by reason of the circumstances that the employee-

. . . . . . . . . . .

(e) has absented himself from work without leave if-

(i) his absence was for the purpose of carrying out his duties or exercising his rights as an officer or delegate of an organization; and

(ii) he applied for leave before he absented himself and leave was unreasonably refused or withheld;

. . . . . . . . . . .

Penalty: Four hundred dollars."

By two separate summonses upon information dated 4 September 1981, Australian Motor Industries Limited (the defendant), a company duly incorporated is charged with first that contrary to s.5(1)(e) of the Act it did on 2 July 1981 injure one Paul Rodney Bicknell an employee of the defendant in his employment by reason of the circumstances that on that day he had absented himself from work without leave, his absence having been forthe purpose of carrying out his duties or exercising his rights as an officer or delegate of the Vehicle Builders Employees Federation of Australia, (the organization), an organization of employees registered under the Act, he having applied for leave before he absented himself and such leave having been unreasonably refused or withheld; and secondly that on that date it did contrary to s.5(1)(e) of the Act alter the position of the said Mr Bicknell as such employee to his prejudice by reason of the same circumstances alleged in the first summons.

The informations were laid by Wayne Douglas Blair the secretary of the Victorian Branch of the organization and the summonses upon such in formations are properly before the Court: see s.13(b) of the Crimes Act (Cth) 1914 and ss.191 and 118D of the Act. The defendant pleaded not guilty to each summons and consented to their being heard together.

The prosecutor's case (the facts of which have been proved beyond reasonable doubt) is that Mr bicknell, then being a delegate of the organization, namely a shop steward, was approached at about 11.35 a.m. on the day in question by a fellow employee-member, one Harold Norman Irving concerning waht Mr Irving believed was a "safety problem" in regard tohis job on the metal finish line in No.4 Metal Shop at the defendant's premises at Port Melbourne. At that time Mr bicknell was working as a spot-welder on the jig line in that shop. The two lines are separate and although under the one roof are some distance apart.

Each line was supervised by a different foreman, the foreman of the jig line being a Mr Reno Abdilla. an assistant Production Manager, Mr Barlow, who occupoed an office within the shop, was the immediate superior of both foremen.

Shortly after being approached by Mr Irving Mr Bicknell sought permission first from Mr Abdilla and then from Mr Barlow to leave his job and to go over to the metal finish line to see what it was that was causing concern to Mr Irving. Permission was refused by both Mr Abdilla and Mr Barlow as Mr Bicknell was unable, when requested, to inform them what it was that was causing concern to Mr Irving, he, Mr Bicknell then being unaware of the details thereof. Mr Bicknell then made a request of Mr Barlow that he be permitted to leave his place of work so that he might proceed to the personnel office and speak with the defendant's industrial officer Mr Weldon. Mr Barlow refused this request but informed Mr Bicknell that he would phone through and arrange for the industrial officer or one of his assistants to come over from the personnel office to No.4 shop. Thereafter a similar request was made by Mr Bicknell of Mr Abdilla which was refused.

These requests, it was claimed, were made at about 11.45 a.m.. As no one form the industrial office had come to No.4 shop by 12.25 p.m. Mr Bicknell spoke to both Mr Abdilla and Mr Barlow and informed them that he was leaving his job and going to speak with the industrial officer about the matter. The luncheon break was due at 13.30 p.m.. Mr Bicknell then spoke to the industrial officer in his office and informed him of all the circumstances referred to above and then proceeded to his lunch. at the conclusion of the luncheon break at 1.10 p.m. Mr Bicknell resumed his duties on the jig line. At the afternoon smoko at 2.18 p.m. he was asked to go into Mr Barlow's office with the senior shop steward, a Mr Thompson. Almost immediately after entering the office Mr Barlow handed him a typed "first-warning" letter signed by Mr Weldon. This leter is set out later herein.

Each of the persons referred to gave evidence, Messrs. Barlow, Abdilla and Weldon being called by the defendant. In addition the certified rules of the organization and the relevant Award, as varied were before the Court.

Certain employees of the defendant company, including those who are members of the organization, have been employed under and in accordance with an Awardmade under the Act known as the Australian Motor Industries Limited Vehicle Building Award 1976 (as varied) (the award). The award binds the defendant company as to all its employees and certain organizations, including the organization and their members.

Relevant paragraphs of c.35 of the award read:

35 - SHOP STEWARDS, SENIOR SHOP STEWARDS AND GRIEVANCE PROCEDURE

(a) Shop Stewards

An employee appointed as a shop steward in the shop or department in which he is employed shall upon notification thereof by the responsible officer of the union concerned to the employer be recognised as the accredited representative of the union to which he belongs and he shall be allowed the necessary time during working hours to interview his employer or his representative on matters affecting employees whom he represents.

(b) . . . . . . . . . . . .

(c) . . . . . . . . . . . .

(d) Grievance Procedure

Notwithstanding anything appearing elsewhere in this clause the following grievance procedure shall apply in the event of agrievance being raised by an employee:

(i) The employee should normally advise his supervisor of his problem or complaint but alternatively he may elect for personal reasons to have his ship steward take up the problem or complaint on his behalf.

The supervisor of the employee concerned will then endeavour to solve the matter within his supervisory capacity.

(ii) If the matter isnot resolved to the satisfaction of the employee/Shop Steward the employee/Shop Steward should seek approval from the supervisor to interview the Industrial Officer and permission to do so will be granted.

If the employee initially elects to complain to hissupervisor and subsequently is not satisfied he may request his Shop Steward to represent him before the Industrial Officer. In this case he must seek and will be granted reasonable time from his supervisor to privately acquaint his Shop Steward of the details of the matter to be discussed.
(iii) . . . . . . . . . .

During 1980 members of the organization employed by the defendant company withdrew their labour. The dispute was resolved following conferences between representatives of the defendant company and the organization before a Commissioner of the Conciliation and Arbitration Commission. The particular dispute at that time had arisen following the dismissal of certain employees of the defendant company. One of the terms of settlement of the dispute was the introduction of a system whereby employees were to be given warnings in relation to particular conduct such as absenteeism, lateness for work, lateness in returning to work after morning or afternoon smoko breaks, leaving their place of work without permission and other matters which are not relevant to the present matter. For such offences employees were to be entitled to two warnings with the understanding that if such conduct occurred again then the employee could be dismissed at the discretion of the employer. The said agreement also made provision for a single warning system following conduct of a more serious nature and also a provision for summary dismissal for very serious misconduct.

A copy of such agreement was not before the Court. The evidence is such that the Court is unaware whether the said agreement was reduced to writing and signed by the parties. The defendant tendered in evidence, without objection, a copy of a document (apparently prepared by the defendant shortly after the settlement of the dispute) which had been circulated to the defendant's foremen and supervisors. This document reads:-

"Warning Procedure

The Warning Procedure does not apply to cases of misconduct, inefficiency, malingering or neglect of duty which are subject to summary dismissal by the contract of employment of the Award.

The procedure does not remove from the supervisor the right or the responsibility to use his judgement as to whether or not a warning is appropriate to a misdemeanour rather than summary dismissal.

However the system is useful in cases where the degree of misconduct or the nature of the misdemeanour is such that the supervisor considers that it does not warrant dismissal.

The system does not remove the right or the appropriateness of the "casual" warning, which is not recorded. A casual warning may be given at any time, and is of such a nature that the supervisor does not consider it serious enough to record.

The procedure should be:-

1. Two warning system is applied to absenteeism, late coming, job attitude, and/or breaches of regulations, or acts not acceptable to the supervisor but not covered by 2.

2. One warning system is used in cases which the supervisor believes to be minor misconduct, or minor misbehaviour not serious enough to warrant instant dismissal.

Application

(a) Where an employee has committed a breach of Company regulations or a misdemeanour, or acts in a way not acceptable to his supervisor as in 1 or 2 above the supervisor is to issue a specific warning to the employee in the presence of his shop steward. The supervisor should then advise the Industrial Officer who will issue a formal letter of warning which the supervisor should hand to the employee.

If the shop steward is not available at the time of actual warning he must be present when the written warning is given.

(b) Final Warning: In cases where the two warning system applies the procedure for the second or final warning is as in (a) above.

(c) Termination: When warnings have been given as in (a) or (b) and the behaviour is such as to indicate that the warning(s) have been disregarded the supervisor should inform the Industrial Officer who will advise on the appropriate action to be taken.

Should termination of employment result the employee is to be terminated in the presence of the shop steward who witnessed the warning(s) or if he is not available, the steward acting in the area concerned.
General

If there is doubt as to the seriousness of the offence, the matter should be referred to the Industrial Officer. In cases of absenteeism, employees must receive two warnings prior to termination action being taken.

In all circumstances which may warrant summary dismissal the employee concerned should be taken to the Personnel Office by the supervisor whilst the matter is being investigated."

Further, the Court is satisfied that the following additional facts have been proved beyond reasonable doubt:-

(a) The defendant company is a company duly incorporated under the Company Act 1961(Victoria) and able to be sued in its corporate name, Australian Motor Industries Limited.

(b) The said Harold Norman Irving was at all material times:-

(i) an employee of the defendant company,

and (ii) a member of the organization.

(c) The said Paul Rodney Bicknell was at all material times:-

(i) an employee of the defendant company,

(ii) is an has been at all material times a member of the organization,

and (iii) in December 1980 was elected under and in accordance with the certified rules of the organization a shop steward for members of the organization employed by the defendant company in the No.4 Metal Shop and held that position on 2 July 1981.

(d) The said Wayne Douglas Blair, as a "responsible officer of the union", notified the defendant company in a letter dated 2 February 1981 that Mr Bicknell had been appointed such shop steward.

(e) At about 2.30 p.m. on 2 July 1981 Mr Bicknell in the presence of the organization's senior shop steward, Mr Thompson was given a written notice on the Defendant Company's letterhead over the signature of Mr Weldon, the Industrial Officer of the defendant company in the following form:

"Mr P Bicknell
Clock No. 25129


This letter formally advises you that you have been given a first warning for neglect of duties.

(signed) Weldon.

INDUSTRIAL RELATIONS DEPARTMENT

(f) The defendant conceded that a substantial and operative reason for the issuing of the first "warning notice" to Mr Bicknell was his leaving his place of work at 12.25 p.m. on 2 July 1981 without permission or any valid reason.

The defendant conceded, and rightly so in my view, that the occupier of the position of shop-steward referred to in the certified rules of the organization tendered is a delegate of the organization within the meaning of that phrase in s.5(1)(e)(i) and that Mr Bicknell was such a delegate at relevant times(see Cuevas -v- Freeman Motors Limited (1975) 25 F.L.R. 67 @ 73, Bowling -v- G.M.H. Pty. Limited (1975) 8 A.L.R. 197 @ 199; (1980) 42 F.L.R. 309 @ 311 and Hyde -v- Chrysler Australia Limited (1977) 30 F.L.R. 318 @ 323).

It was submitted by the defendant Company that in all the circumstances the Court would not be satisfied:- (i) that the giving to Mr Bicknell of the warning referred to in (e) above was either (a) an injury to him in his employment or (b) an alteration of his position to his prejudice;

(ii) that Mr Bicknell "absented himself from work" at all on 2 July 1981 within the meaning of s.5(1)(e) of the Act;

(iii) that, if contrary to (ii) the Court found that at the relevant time Mr Bicknell did so absent himself from work it was for the purpose of carrying out his duties or exercising his rights as a delegate of the organization, and

(iv) that the refusing or withholding of permission to allow Mr Bicknell to go to consult with Mr Weldon was in all the circumstances unreasonable.

The failure of the prosecutor to satisfy the Court on any one of the above essential elements would necessarily result in an order dismissing the information and summons in each matter.

I am of the opinion that the facts stated above do not support a finding (1) that the giving of the "first warning" to Mr Bicknell in the circumstances referred to was either an injury to him in his employment or an alteration of his position to his prejudice within the meaning of the Act or (II) that Mr Bicknell in the circumstances set out "absented himself from work" on 2 July 1981.

This means that it is unnecessary to make a determination in respect of the other two submissions raised by the defendant which are set out above. The Court expresses no opinion as to whether or not there has been a breach of the Award.

In regard to the questions whether there was an injury or an alteration of Mr Bicknell's position to his prejudice; in my view his legal rights were the same after the warning as they were before the warning. His contract of employment remained the same; his job was the same; his wages were the same; his duties and responsibilities were the same; his status was the same; his position was the same and there was no "deprivation of any immediate practical incidents of his employment". The prosecutor argues that the warning meant that Mr Bicknell was one step closer to possible dismissal in the future and that this effectively meant that immediately after the warning Mr Bicknell had been injured in his employment or his position had been altered to his prejudice. This argument is rejected. Whatever may be the meaning of the phrases "injure him in his employment or alter his position to his prejudice" in the opening words of s.5(1) of the Act, I am clearly of the view that a mere warning given in the circumstances referred to does not so injure or alter an employee's position to his prejudice.

The relevant history of s.9 of the Act (the precursor of s.5) is that since 1904 when the Act first came into operation sanctions have been provided against an employer who dismissed an employee in certain proscribed circumstances. In 1909 (s.2 of Act No.28 of 1909) the phrase "or injure him in his employment" was inserted whilst in 1914 (s.2 of Act No.18 of 1914) the phrase "or alter his position to his prejudice" was added. It is clear in my view that the words were added to the section to overcome a situation in which an employer did something short of dismissing an employee but which was something which could be said to be harmful to him in his employment.

In this regard I respectfully adopt the views expressed by Smithers J. in Childs -v- Metropolitan Transport Trust (not yet reported) - Judgment 9.12.81). In that case the defendant had been charged on 3 counts laid pursuant to s.5 of the Act namely, that (i) on 22 December 1980 it had altered the position of Mr Childs to his prejudice or (ii) injured him in his employment and (iii) on 23 December 1980 it had dismissed him. Mr Childs had been appointed acting senior revenue clerk for a probationary period of six months. Prior to such appointment he had been a pay clerk.

On 22 December 1980, well within the six month period, he was informed by the defendant that on and from 5 January 1981 he was to cease holding the position of acting senior revenue clerk and return to his former position of pay clerk. It was claimed (inter alia) that the said alteration to his position resulted by reason of certain circumstances proscribed by s.5(1) of the Act. In his reasons for judgment Smithers J. states:-

"At the close of the informant's case Dr Jessup submitted that there was no case to answer in respect of the charge that on 22 December 1980 the defendant altered the position of the informant to his prejudice. He made a similar submission in respect of the charge that on 22 December 1980 the defendant did injure the informant in his employment. I did not accede to the submission in respect of the first charge but I did accede to that in respect of the second. I stated my reasons as follows:-

"This matter has been argued apparently as far as it can be by counsel and it is necessary that I should indicate my findings in respect of the submissions made to me by Dr Jessup. So far as the first count in the information is concerned, namely, that on 22 December the defendant altered the position of the informant to his prejudice in his employment, by reason of one or more of all of the circumstances set out in paragraphs 1(a), (b), (c), (d) and (e) of the information, I am of the opinion that having regard to the facts before me, as they stand at the moment, without evidence contradicting those facts, I would consider that there is a case for the defendant to answer.

The answer to the problem depends upon the proper interpretation of s.5 of the Conciliation and Arbitration Act 1904, and in particular the proper construction of the words 'alter his position to his prejudice' in the opening sentences of the section. I think it has to be observed that basically the mischief aimed at by s.5 is a class of action taken by an employer against an employee not because there is anything wrong in taking that action in a proper case, but taking that action where it is actuated by various reasons, or one of various reasons, closely connected with the operation of the Act which are set out in s.5. Recognising that the objectives of the Act, which are to encourage unionism and the observance of awards, the settling of disputes by conciliation and arbitration and through representative bodies of employers and employees, Parliament has been aware of the fact that those objectives would be largely frustrated if employees, who were minded to be activists, energetic or even less than energetic in what I call the operation of the Conciliation and Arbitration Act, were subject to fear that they would be injured in their employment if they did take an active part in union affairs and in pressing what they thought were the rights and privileges which ought to be associated with their employment.

Originally, in order to protect employees from the fear of injury in their employment, Parliament enacted what is now s.5, but the section did not then include the words "or alter his position to his prejudice". No doubt, because it was found that a man could suffer because of his activities in the operation of the Act, through action taken against him by his employer because of those activities, which did alter his position in his employment to his detriment, but did not actually injure him then and there in a practical way. It seemed good to Parliament, therefore, to say to employers, "You must not dismiss him for any of those reasons. You must not injure him in his employment for any of those reasons and you must not, whether you injure him or not, alter his position to his prejudice."

The overall intention is that employees shall feel free to operate the Act without fearing dismissal, injury or prejudicial alteration of their position. It is possible to read the word 'position' in a narrow way merely as referable to the immediate incidents of day-to-day employment. But I do not see any reason why it should be so circumscribed in meaning. It seems to me that the word 'position' should be read rather to refer to a man's employment position in all its attributes and that to find what those attributes are in any particular case, you look at the terms of the agreement in relation to the particular employment.

. . . . . . . . . . . .

. . . I am told I must apply a fairly restricted meaning because this is a penal statute, but I feel that I should apply a natural meaning, not forced or fanciful in any way and a meaning which accords with what seems to me to be the intention and the objective of the relevant statute. Therefore, so far as the first count is concerned I am unable to find at this moment that a case to be answered is not made out.

So far as the second charge is concerned, I am unable to see that in the narrow sense in which the word 'injure' seems to be used, the informant was injured in his employment on 22 December. It did not occasion him any immediate loss of income. It did not mean that he did not do the same work . . . . I cannot help thinking that 'injure' refers to deprivation of one of the more immediate practical incidents of his employment, such as loss of pay or reduction in rank."

Turning then to the question whether Mr Bicknell "absented himself from work" at 12.25 on 2 July 1981. In my view, the expression "absented himself from work" in s.5(1)(e) of the Act is used in contradistinction to the expression "absented himself from duty" and does not cover the situation where an employee leaves his actual place of duty within the employers premises, albeit without permission, for the purpose of doing something which he believes and claims, as in the present case, is his lawful right under the Award. The phrases "absent from duty" and "absent from work" have, in my view, different meanings and are and have been for some years understood in an industrial sense to have such different meanings. A perusal of the Award itself that is applicable here (exhibit 2) demonstrates this (see e.g. cls. 6(b), 6(c) (ii), 23(e), 24(e) and 27). See also the decision of Mr Commissioner Matthews in The Food Preservers' Award, 1973 (1975) 168 C.A.R. 231.

It is therefore unnecessary to determine, as was argued by the defendant, that sub-s.5(1)(e) was directed only to a situation where either an officer or a delegate of an organization, who is not employed full-time by the organization but is employed in industry is harmed in some way in his employment as a result of his attending without his employer's permission a meeting of the Union or in performing other union duties away from his employer's premises during his normal hours of work. Sub-s.5(1)(e) would clearly cover such a situation but the question whether the sub-section is so limited is left open.

Accordingly in my view, the prosecutor has failed to make out at least two essential elements necessary in proving his case with the result that both informations and summonses must be dismissed.