Burns v the Adelaide Casino No. Scgrg-99-88 Judgment No. S279

BURNS & ANOR v THE ADELAIDE CASINO PTY LTD
[1999] SASC 279

Full Court: Olsson, Mullighan and Nyland JJ

OLSSON J I agree with the orders proposed by Nyland J and the reasons expressed by her.
There are only two aspects which I would seek to emphasize.
Like Nyland J, I do not find the criticism of the decision in Ayres v Dehy Fodders (Aust) Pty Ltd (1981) 48 SAIR 707 (“Ayres”) convincing. It is trite to say that the Full Industrial Court was only justified in overruling it if it was made to appear that its impugned decision was plainly wrong.
Quite apart from the fact that it is a somewhat bold assertion that a considered, unanimous decision of three judges was plainly wrong, the reasoning of Nyland J effectively dispels the validity of any such reasoning. It is a matter for some surprise that, if the Full Industrial Court was seriously contemplating the course which it in fact adopted, it did not give an appropriate intimation to the parties and invite specific submission on that point. It does not appear to have done so.
Having said that, I am satisfied that the learned judge at first instance would, in any event, clearly have been correct in the result to which he came, absent any prior authority such as that of Ayres.
The instant case fell to be decided in light of the provisions of s 223(1) of the Industrial and Employee Relations Act 1994, (SA) bearing in mind the other provisions of that statute applicable to its proper interpretation. The context in which the section appears and its mode of expression are not entirely in pari materia with the statutory provisions in force at the time when Ayers was decided; and which, themselves, differ from corresponding provisions of federal legislation.
As Nyland J has pointed out, due weight must be given not only to the overall scheme of the current legislation, but also to the definition clauses in it.
Section 223 focuses on “participation in an industrial dispute”. The phrase “industrial dispute” relevantly, means a dispute “about an industrial matter”. There can be no doubt that the contentions between the disputants in the instant case relate to a subject matter that fell well within the ambit of an “an industrial matter” as separately defined.
At the relevant time the strike action was directly related to a refusal by the employer to negotiate further as to a fresh enterprise agreement bearing on hours, conditions of work and related aspects.
This legislation is couched in very general terms, which are intended to apply, in a practical manner, to the realities of industrial relations. One of those realities is that, in circumstances such as those now under consideration, it is highly artificial and unreal to attempt, separately, to dissect out facts and events which are, in truth, part and parcel (and the direct manifestation) of what is, in reality, a single, ongoing industrial dispute between relevant parties.
It is against commonsense to suggest that the strike which took place here was not part and parcel of what was a single dispute, but was some quite discrete product or consequence of it, separate and apart from the dispute itself. On the contrary it consisted of a direct participation in a dispute about an industrial matter.
Although Ayers focused on a statutory provision and context different from that of s 223(1), it seems to me that the conceptual validity of its reasoning remains valid for present purposes. The attempted disassociation of the withdrawal of labour from the core dispute between the parties is at odds with industrial reality. Like Mullighan J, I consider that the words of s 223(1) should be given their ordinary meaning. If an ordinary member of the community was asked whether, on the facts of this case, the appellant Burns had been discriminated against because of her “participation in an industrial dispute”, the answer would be a resounding “Yes”. That is the plain commonsense of the matter.
In so saying, I am not inferring that all strike action would necessarily constitute participation in a relevant industrial dispute in all circumstances. However, it is impossible to conclude that, on the facts found by the learned judge at first instance, he fell into error in his application of s 223(1) to them. To deny his conclusion would be to deprive the employee in question of the protection which the section manifestly intended to confer on her. It would emasculate the span of its intended operation in a manner not contemplated by the legislation and which would be inimical to the system of resolution of industrial disputes which is envisaged by the statute.

MULLIGHAN J I agree that the appeal should be allowed substantially for the reasons given by Nyland J. I agree with the orders which she proposes.
I cannot think of a more obvious circumstance for the application of s223(1) of the Industrial & Employee Act 1994. In some circumstances there may be a series of separate and distinct disputes each of which may amount to an industrial dispute within the meaning of the section, or there may be a number of related events which form part of one dispute. It is a question of fact in each case. Not to regard the dispute between the appellants and the respondent as an industrial dispute would be to not give these words their ordinary meaning. A strike may be part of an industrial dispute or the manifestation of it: Jumbunna Coal Mine, No Liability and Anor v The Victorian Coal Miners’ Association(1908) 6 CLR 309 at pp332-333 and p341 It was accepted by the respondent, and correctly so, that it discriminated against the first appellant and members of the second appellant who had participated in the strike. The evidence clearly established, and justified the finding, that the discrimination occurred for that reason. In my view the Full Industrial Court erred in concluding that participating in a strike is not participation in an industrial dispute.

NYLAND J This appeal is from a decision of the Full Industrial Relations Court. The court allowed an appeal from a single judge with respect to an order with injunction. Pursuant to the order the respondent was restrained from rostering its employees, having regard to, or taking into account, whether the employee seeking to be rostered had on or about Saturday, 5 September 1998 or Sunday, 6 September 1998, or at any other time engaged in industrial action by withdrawal of labour.
The first appellant (Burns) commenced her employment as a dealer at the Adelaide Casino in 1991. At that time the terms and conditions of employment for employees of the Casino were set out in an award made by the Industrial Relations Commission of South Australia called “The Adelaide Casino Award 1998” (the award). At the time the award was made the employer of employees at the Casino was a company called Aitco Pty Ltd (Aitco).
On 1 July 1996, Aitco and the second appellant (the union) entered into an enterprise agreement pursuant to s 79 of the Industrial and Employee Relations Act 1994 (the State Act). The agreement was expressed as remaining in operation until 31 December 1997. The agreement included a negotiation clause which required that the parties agree to meet no later than 1 September 1997 for the purposes of commencing negotiations for an enterprise agreement to commence on 1 January 1998.
In September 1997, the union at the request of its members notified Aitco of its desire to commence negotiations for the third enterprise bargaining agreement. Aitco responded by informing the union that as the Casino was to be put up for sale by tender they would not be negotiating a new agreement. Aitco said that since the tendering process had commenced they could not alter the wages conditions of employees. Aitco said that employees would remain under the current enterprise agreement at least until the sale process was finalised.
On 17 February 1998, the South Australian government moved to withdraw the Casino from sale. Shortly afterwards, having become aware of the withdrawal from sale, the union sought to recommence negotiations with respect to the proposed next enterprise agreement. The first meeting of the industrial parties was held on 6 April 1998.
On 7 April 1998, Aitco advised its employees that it intended to attempt to negotiate a new enterprise agreement pursuant to the State Act. The first meeting of the negotiating committee was held on 29 April 1998.
Negotiations for a new enterprise agreement were unsuccessful. On 27 May 1998, Aitco advised its employees that it was withdrawing from negotiations for a proposed enterprise agreement pursuant to the State Act.
On 5 June 1998, certain employees of Aitco held a “stop work” meeting and passed various resolutions.
On 1 July 1998 there was a change of ownership of the Casino. The respondent, Adelaide Casino Pty Ltd (the Casino) became the sole proprietor in lieu of Aitco. The Casino was not bound by the enterprise agreement pursuant to the State Act but continued to apply the provisions of the enterprise agreement to its employees. Thereafter the union notified the existence of an industrial dispute to the Commission.
The dispute concerned a proposal by the Casino to attempt to make Australian Workplace Agreements (AWA’s) with its employees pursuant to the (Federal) Workplace Relations Act 1996 (the Federal Act).
On 27 July 1998, a deputy president of the State Commission sought to resolve the dispute by conducting a voluntary conference. On that date the Commission recommended that the Casino not pursue discussions for AWA’s while negotiations were still on foot for a new enterprise agreement pursuant to the State Act.
On 29 July 1998, however, the Casino advised the union that effective immediately they were discontinuing discussions in relation to an enterprise bargaining agreement in favour of seeking to reach agreement directly with employees through the introduction of AWA’s.
On 7 August 1998, a further stop work meeting was held which was attended by approximately 280 employees and a series of resolutions were proposed and passed.
On 21 August 1998, a ballot of union members resolved to take industrial action in an attempt to persuade the Casino to resume enterprise bargaining negotiations.
On 27 August 1998, in an endeavour to resume negotiations, the union wrote to the Casino advising that the members had resolved to take industrial action and said that “it is the view of the members that if they are unable to convince management to return to the negotiation table, their options are clear”.
On 31 August 1998, the Casino responded to the union by advising that it intended to continue to make AWA’s with its employees.
On 2 September 1998, the members of the union held a further meeting at which they resolved to take industrial action for 24 hours from 9 am on 5 September 1998 to 9 am on 6 September 1998. Before the union could advise the Casino of the resolution, the Casino became aware of the intention to take industrial action. The Casino sent a letter to the union informing it that any occupation of its property for the union’s own purposes would be unlawful.
According to the union, on or about 2 September 1998, the union office received a telephone call from a number of casual employees who said they had been told by Casino line managers that if they took any form of industrial action they would have their hours cut or would not be rostered for a period of time. The union then wrote to the Casino advising that “this type of action would be a clear breach of the Industrial Relations Act and the appropriate action would be taken on behalf of our members”.
On 3 September 1998 the union issued a newsletter which stated that the strike was “a protest by employees who have been fighting to retain their rights to collectively negotiate an enterprise agreement rather than be forced on to individual contracts by this government”.
On the same day the Union issued a second newsletter which stated that the strike “action will leave management in no doubt about the will of employees to pursue a collective enterprise agreement. Workers at this government run Adelaide Casino will absolutely refuse to agree to individual contracts”.
Thereafter approximately 300 of the Casino’s employees, including Burns, went on strike for 24 hours from 9 am on Saturday 5 September 1998 till 9 am on Sunday 6 September 1998. Burns, other members of the union and union officials handed out a newsletter to Casino patrons which again described the action as a “protest by employees who had been fighting to retain their rights to collectively negotiate an enterprise agreement rather than be forced on to individual contracts by this government”.
A copy of this newsletter was also handed to other Casino workers who were attending for work.
In the course of the strike, Burns and other employees were handed a letter by Paul Mason (Mason), the general manager of administrative support of the Casino, which inter alia stated “If you are an employee of Adelaide Casino Pty Ltd you may be subject to disciplinary action for taking part in an unlawful picket”.
In an affidavit sworn on 16 September 1998, Mason said that in the course of the weekend he received information from various sources relating to rumours of possible further industrial action, and formed the opinion that further industrial action in the form of a strike or other withdrawal of labour without notice was a real possibility. He said that:
“Such industrial action raised significant risk that the income of the Casino would be affected and would create significant security problems in addition to causing general disruption to the orderly conduct of the Casino’s operations. More importantly, we would potentially be in breach of The Casino Act and The Casino Management Agreement with the Lotteries Commission. I therefore resolved to eliminate or reduce such risks and to protect the business of the Casino. In conjunction with other department heads, a decision was taken to offer shifts to those employees whom we were confident would attend work.”
On Monday, 7 September 1998, Burns telephoned the Casino and sought to be rostered for work on Sunday, 20 September 1998. She was told that she could not have a Sunday shift because she had not worked on Saturday, 5 September. Burns said in her affidavit sworn on 11 September 1998 that throughout her period of employment with the Casino she had always been able to get as much work as she wanted, she had regularly worked Fridays, Saturdays and Sundays and at least half the time had also worked on Thursday in the preceding twelve months. She said the value of a Friday shift of eight hours was $130; Saturday approximately $160; and Sunday approximately $180.
On 11 September 1998, an application for orders pursuant to s 15 of the State Act was filed in the Industrial Court. It was set down for hearing on Tuesday, 15 September 1998. Proceedings commenced before the Industrial Court judge on that date. At the commencement of the hearing the Casino gave an undertaking that it would not discriminate against Burns or otherwise be in breach of s 223(1) of the State Act. Burns was subsequently rostered for work on 20 September 1998.
The Industrial Court judge, in his reasons, said that it was agreed by the respondent that every employee who failed to attend work on 5 September in pursuit of their industrial objectives was refused the Sunday shift. He found that lists with the names of those who went on strike were used by the scheduling clerks to ensure that this was done. The judge referred to the evidence of Mason that the action taken was not connected with the employees’ participation in any industrial dispute. The judge made an adverse finding with respect to Mason’s credibility as well as that of Best, the general manager for Casino operations. The judge considered that both had declined to tell him the truth. He observed that Mason’s explanation as to the preparation of the lists as “a haphazard occurrence (was) at odds with the care taken to ensure the prejudice was inflicted only on the Sunday and that only the strikers suffer”.
With respect to Best he said :
“Mr Best stated that the purpose of the action was to cover the shifts at risk from strike with staff who had worked during the 5th. He stated his advice to the Scheduling Manager was to put on the staff who had had a predisposition to working on those days when there was likely to be (a) strike. That the Sunday chosen was a likely day of strike was void of a scintilla of evidence. Again his explanation of how the decision was reached was quite unconvincing.”
The judge went on to point to a number of factors which indicated to him that there was an intention to inflict a loss or prejudice on those who persisted in the industrial dispute, namely:
“(1).. The documentation and events I have related indicate that there was a climate of real antagonism between the parties and that the management had become dismissive of the employees’ contentions. This lessened the likelihood of calm response.
(2)Best did say, ‘we can do as we like’. This is consistent with the climate of antagonism and retaliatory mood.
(3).... The rostering of the strikers on the Friday and Saturday, but not on the Sunday, has no objective or rational explanation consistent with the interests of the business as suggested by Mason. It simply does not add up. It strongly infers a retaliation in the general industrial dispute.
(4)There is in Mason’s evidence some indication of an ongoing and measured evaluation of the industrial situation and that clearly was in the context of the industrial dispute.”
The judge then found that s 223 was, for his purposes, in equivalent terms to s 156 of the Industrial Conciliation and Arbitration Act 1972-81 (the 1972 Act). The latter provision had been considered by the Full Industrial Court in Ayres v Dehy Fodders (Aust) Pty Ltd (1981) 48 SAIR 707. The judge referred to the judgment of Olsson P (as he then was) with whom the other members of the court agreed wherein he said (at 725):
“Where industrial action is manifestly part and parcel of what is undoubtedly an industrial dispute (ie a dispute about an industrial matter) as in the present case, it appears to me both artificial and illogical to attempt to disassociate the two for the purpose of applying section 156 of the Act. Indeed, if this was a proper approach it is difficult to envisage real circumstances in which the section would have substantial room for practical application. ...
In my opinion the approach proper to be adopted is that relevant to section 5 of the Commonwealth enactment, given that this employs the phrase ‘by reason of the circumstances’ rather than ‘in consequence of’. This has consistently been construed as implying that it is sufficient for the purposes of subsection (1) of section 156 if the involvement of the employee in a relevant industrial dispute was ‘a substantial and operative factor’ in the dismissal ‘And it does not cease to be such a factor because it is coupled with other circumstances or because regard is had to it in association with other circumstances not mentioned in the circumstances’ (see General Motors-Holden Pty Ltd v Bowling 12 ALR 605 at 619, Hyde v Chrysler (Australia) Ltd 30 FLR 318 at 329). The concept is essentially one related to substantial causation. (See also the reasoning in Frederick Braby and Co Ltd v Bedwell (1926) 1 KB 456 at 459.)
In the instant case the evidence reveals that -
(1)... an industrial dispute existed as a result of the failure to accede to the log of claims presented by the station hands.
(2)... the refusal to work on Saturday was made as part and parcel of the dispute and the work bans which had arisen in the context of it.
(3)... the appellant was dismissed solely because of the refusal to work made in pursuance of the work bans, the respondent well knowing that these had arisen as portion of the process of prosecuting the log of claims.”

The judge then found that the elements established in this case satisfied the approach adopted by the court in Ayres. He then considered whether he should proceed to make an order. He noted that the respondent, in response to his request, had amended the rosters on 20 September and that Burns had presumably worked that shift. He found, however, that there were reasonable grounds to believe that a contravention was likely and immediate and made the order which is the subject of these proceedings.
On 8 October 1998, the Casino lodged a notice of appeal against the decision of the Industrial Court judge. That appeal came on for hearing before the Full Industrial Court on 17 December 1998. Judgment was delivered on 19 January 1999. The Casino claimed that it was unfair for the judge to have proceeded to make final orders in the matter as the application originally came before him as an interim application. The Full Court rejected that contention and held that it was too late in the day for the Casino to be complaining in this context that it was not given a fair hearing before the learned trial judge.
The Full Court also rejected the argument put with respect to the findings made by the judge as to the assessment of witnesses. The court considered that it was unnecessary to deal with that matter as it had been conceded by the counsel for the Casino in the course of argument that the Casino had discriminated against the employees who participated in the strike. The Full Court found the fact that it might have been motivated in so doing because of concern for the welfare of the Casino’s operations was not to the point.
The Full Court identified the real issue as being whether participating in a strike was embraced by the expression “participation in an industrial dispute”. They then proceeded to consider the decision in Ayres. The court disagreed with the conclusions reached by Olsson P in Ayres, primarily on the basis of a number of decisions of the High Court which it said drew a distinction between an industrial dispute and the consequences of an industrial dispute. It finally concluded that the decision of the Full Court in Ayres was wrong. The court held that “the expression participation in an industrial dispute” did not “include participation in the consequences of an industrial dispute”.
The Full Court therefore held that Burns’ participation in the strike and the participation of the other employees of the Casino in the strike could not be said to be participation in an industrial dispute for the purposes of s 223(1)(c) of the Act. The court allowed the appeal and set aside the order of the trial judge.
The notice of appeal which is now brought by Burns and the Union against that decision is directed to the issues of whether or not s 223 of the Act excludes a “strike” by using the expression “participation in an industrial dispute” and whether the court correctly held that Ayres was wrongly decided.
The relevant part of s 223 (which has the heading “Discrimination against employee for taking part in industrial proceedings, etc”) provides as follows:
“(1) An employer must not discriminate against an employee by dismissing or threatening to dismiss the employee from, or prejudicing or threatening to prejudice the employee in, employment for any of the following reasons - ...
(c) because of the employee’s participation in an industrial dispute ...”
Section 4 of the Act is concerned with interpretation and contains the following definitions:
“ ‘industrial action’ means - ...
(c)... a failure or refusal in connection with an industrial dispute to attend for work, or to perform work ...”
“ ‘industrial dispute’ means a dispute, or a threatened, impending or probable dispute, about an industrial matter ...”
“ ‘industrial matter’ means a matter affecting the rights, privileges or duties of employers or employees ... or the work to be done in employment, including, for example -
(a)..... the wages, allowances or remuneration of employees or prospective employees in an industry, or the piece-work, contract or other prices paid or to be paid for the employment, including any loading or amount that may be included in wages, allowances, remuneration or prices as compensation for lost time and the wages, allowances or remuneration to be paid for work done during overtime or on holidays, or for other special work, and also the question whether piece-work will be allowed in an industry;
(b...... the hours of employment in an industry, including the lengths of time to be worked, and the quantum of work or service to be done, to entitle employees to any given wages, allowances, remuneration or prices, and what times are to be regarded as overtime. ...”
For completeness I also mention s 198(2) of the Act which is concerned with the assignment of a Commissioner to deal with dispute resolution. It includes a reference to “... the prevention and resolution of disputes relating to the negotiation, making, approval, variation or recision of an enterprise agreement ...”
Ms Layton QC, who appeared for the appellants submitted that the Full Court had fallen into error by treating the issue as one of law alone when such an issue was a combined question of fact and law. She submitted that participation in a strike was not as a matter of law precluded from amounting to participation in an industrial dispute in accordance with the provisions of s 223(1)(c). She submitted that the decision reached by the Full Court ignored the meaning of the word “dispute” in the expression “industrial dispute” which historically has always included a strike as being the most overt indication of industrial disputation. By way of example she referred to the decision of the High Court in Jumbunna Coal Mine No Liability & Anor v Victorian Coal Mines Association (1908) 6 CLR 309. In that case, Griffith CJ said (at 332):
“A question which arises at the outset is, what is an ‘industrial dispute’ within the meaning of the Constitution? It must, of course, be a dispute relating to an ‘industry’, and, in my judgment, the term ‘industry’ should be construed as including all forms of employment in which large numbers of persons are employed the sudden cessation of whose work might prejudicially affect the orderly conduct of the ordinary operations of civil life.”
At 341, Barton J said:
“An industrial dispute in the everyday meaning of the term does not take place unless a number of employes in an industry unite on their part to enter into controversy with the person or persons employing them so as to secure what they consider an improvement, or to prevent or remove what they view as a wrong or hardship, in relation to the terms of their employment.”
And at 365, O’Connor J said:
“ ‘Industrial dispute’ was not, when the Constitution was framed, a technical or legal expression. It had not then, nor has it now, any acquired meaning. It meant just what the two English words in their ordinary meaning conveyed to ordinary persons, and the meaning of these words seems to be now much what it was then.”
And at 366:
“... it is certainly fair to assume that the expression ‘industrial disputes’ was at the time of the passing of the Acts commonly used in Australia to cover every kind of dispute between master and workman in relation to any kind of labour.”
And at 372-373, Isaacs J said:
“An industrial dispute under the Act, and within the constitutional power, is a dispute in some ‘industry’. It may between employers and employes and employes and employes, as, for instance, the well-known ‘demarcation’ disputes in the ship building trade. ...
The Constitution and the Act alike look to a dispute that dislocates or may dislocate a particular industry - the extent of dislocation being immaterial; but the governing idea is primarily the preservation of peace in the industry generally, and its uninterrupted progress, and not the settlement of individual quarrels as such. If, say in New South Wales, there is a `simultaneous general demand by employes in a particular industry for certain wages, hours and conditions, and a refusal by the employers to grant it, there is ‘an industrial dispute’ in New South Wales; and it would be a complete misunderstanding of terms, thoroughly well known and understood at the time the Constitution was framed, in Parliament and out of it, to call this general trouble affecting the industry as a whole so many separate industrial disputes. If the men struck, or the employers locked them out, it would be said there was ‘a strike’, - or ‘a lock-out’, and not so many separate strikes or lock-outs. There would then be in that State an industrial dispute, apart from any organization on either side.”
It is obvious therefore that, subject to the dispute involving a number of people, the concept of an industrial dispute is very broad.
As part of the process by which the Full Court concluded that Ayres was wrongly decided, it had regard to the various amendments which had occurred to the 1972 Act. The Court commented that when s 156 was first enacted there were other provisions in the Act that declared certain forms of industrial action in certain circumstances to be illegal: ss 146 to 152. Those provisions were not repealed until 1984, well after the Ayres decision was delivered. The Full Court said that -
“In other words, the Full Court had no reason to approach the interpretation of s 156(1)(d) from the premise that it should attribute to Parliament an intention to sanction the participation in industrial action. And yet one of the consequences of the expansive interpretation adopted by the Full Court is that the section does sanction the participation in industrial action including action which is illegal or utterly unreasonable. The reasoning of the Full Court in Ayres leads to the conclusion that provided the participation in the industrial action can be said to be manifestly part and parcel of an industrial dispute an employer would commit an offence by dismissing an employee involved in that action.”
It is necessary to examine the sections referred to by the Full Court. Sections 146-152 all appear in Division II of the 1972 Act which is headed “Lock-outs and strikes”. Section 146 makes it an offence to take part in a lock-out unless the employees are engaged in an illegal strike and provides the penalty for that offence. Section 147 particularises the strikes which shall be illegal.
Section 148 is also a penalty section. It provides that, subject to s 149, any association, the executive or members of which are taking part in or aiding and abetting or have taken part in or aided or abetted an illegal strike shall be guilty of an offence and fixes the penalty with respect thereto.
Section 149 places limitations upon the circumstances in which a prosecution pursuant to s 148 can take place. It requires that proceedings pursuant to s 148 shall not be commenced except by leave of the court and leave shall not be granted unless certain preconditions have been fulfilled.
Section 150 sets out matters which can amount to a defence to proceedings under s 148. Sections 151 and 152 relate to costs and hearings in court.
As can be seen, all of these sections are concerned with prosecutions for illegal strikes. Only those strikes which are illegal pursuant to the Act can be the subject of a prosecution and only in limited circumstances. That is not the situation which arose in Ayres, nor that which presently arises. There does not appear to be any inconsistency between those provisions, which relate to prosecutions, and those which relate to the prevention of discriminatory action.
The Full Court further suggested in the passage referred to here in para 46 the decision in Ayres countenanced industrial action which was illegal or utterly unreasonable. In my view, however, there was nothing said in Ayres which would support the expansive interpretation attributed to it by the Full Court.
The Full Court also referred to s 15(1)(e) of the 1972 Act which empowered the Industrial Court -
“to hear and determine any question as to whether the dismissal from his employment of an employee ... was harsh, unjust or unreasonable and the court may, if it thinks fit, direct the employer of that employee to re-employ that employee in his former position ...”
The Full Court describes this as “a measure of protection which is not insignificant”. While that is true, it fails to take into account protection from other forms of discrimination which fall short of dismissal, which is the clear intent of s 223.
The Full Court then went on to consider a number of decisions of the High Court which it said drew a distinction between industrial dispute and the consequences of an industrial dispute.
Ms Layton submitted, however, that the conclusion reached by the Full Court was based on a misinterpretation of the High Court cases as to the meaning of “industrial dispute” under the Federal Constitution and the Federal jurisdiction, the concepts of which had been correctly considered by the Court in Ayres. For example, in Caledonian Collieries & Ors v The Australasian Coal and Shale Employees’ Federation & Ors [No.1](1930) 42 CLR 527, which is mentioned by the Full Court in its reasons for decision, the High Court considered a matter in which the dispute had arisen in New South Wales and there had also been strikes in Queensland and Victoria. The interstate strikes, however, had not in themselves indicated a demand of the same nature as New South Wales. The Court therefore held that the mere fact that there was a strike interstate did not mean that there was an industrial dispute because there had not been any demand or any rejection of such a demand in those States. Accordingly there was a distinction between the dispute in New South Wales and the consequences of the dispute in Queensland and Victoria. Ms Layton submitted therefore that this decision did no more than illustrate that in the Federal jurisdiction (which allowed for paper disputes), there could be disputes leading to subsequent industrial action of a different kind.
In their reasons for decision, the Full Court appeared to place particular reliance on the decision in Australian Federation of Air Pilots & Ors v The Flight Crew Officers Industrial Tribunal & Others (1968) 119 CLR 16 and the dicta of Kitto J where he said (at 35):
“But what is important on the present application is that the Federation’s threat is to be distinguished from the demand for three air crew members which lay behind it. Carrying it into effect would create industrial disruption, but not an industrial dispute susceptible of arbitral settlement. It seems necessary to repeat that industrial disruption, or a threat of such disruption, is not a dispute, though it may be and usually is the product or the evidence of a dispute. Consequently a power to settle disputes can never validly be exercised to deal with the disruption or threat of disruption as if it were itself a dispute to be settled. The power must be exercised, if at all, by dealing with the matters in difference which lie behind the disruption or threat, and then a bans clause may be added to make the settlement more effective. These are trite propositions in industrial law.”
The Full Court said:
“In making these observation(s) Kitto J was restating the views expressed in a number of earlier decisions of the High Court. See for example: Caledonian Collieries Ltd v Australasian Coal and Shale Employees’ Federation [No.1] (1930) 42 CLR 527 at 552 and Caledonian Collieries Ltd v Australasian Coal and Shale Employees’ Federation[No.2] (1930) 42 CLR 527 at 619.
It is true as Olsson P observed that these decisions did not directly concern the issue of statutory interpretation before the Court in Ayres. But we do not think that it follows that these decisions can or should be ignored. They undoubtedly reflect an established distinction between an industrial dispute and the consequences of an industrial dispute that might be thought to have been in Parliament’s contemplation in enacting section 156(1)(d) and we think certainly was in its contemplation in its enactment of section 223(1)(c) of the Act. Moreover, if that distinction is adopted in construing section 156(1)(d) and section 223(1)(c), a common feature in section 156(1)(a), (b), (c), (d), and (e) and in section 223(1)(a), (b), (c), (d), and (e) emerges, namely that each action specified as warranting protection comprises of behaviour which is consistent with the orderly resolution of industrial issues. ...
As a result of those amendments the protection afforded by s 156 was extended to include the injuring of or threatening to injure an employee in his or her employment or altering detrimentally or threatening to alter detrimentally the position of an employee in his or her employment on account of his or her taking part or being involved in an industrial dispute.
If the expression ‘taking part or being involved in an industrial dispute’ had the meaning declared by the Full Court in Ayres it would mean that those amendments radically changed the law in relation to industrial action by enabling those participating in industrial action to act with almost complete impunity however unreasonable that action might be because provided participation in that action could be said to be manifestly part and parcel of an industrial dispute it would fall within the protection of s 156. That is a change that we would not attribute to Parliament without a clear indication that that is what was intended. Not only was such a clear indication lacking, the enactment of s 157 pointed the other way.
Section 157(1)(h) created an offence for an employer to dismiss or threaten to dismiss an employee, to injure or threaten to injure an employee in his or her employment or to alter detrimentally or threaten to alter detrimentally the position of an employee in his or her employment because the employee took or proposed to take or had taken lawful action for the purpose of furthering or prosecuting the interests of an association or of the members of an association of which the employee was a member, officer or delegate. If Ayres correctly reflected Parliament’s intention to sanction all industrial action which was manifestly part and parcel of an industrial dispute, one might ask why the protection provided by s 157(1)(h) was limited to ‘lawful action’.”
The court therefore drew the distinction between an “industrial dispute” as opposed to “industrial action”. As Ms Layton pointed out, however, Australian Federation of Air Pilots v Flight Crew Officers Industrial Tribunal was not a case where, as a matter of fact, the question which arose for determination by the court involved an industrial matter at all. Essentially it was concerned with a question of safety. In that context the conclusion reached by the court is easily understood.
Ms Layton also referred to The Queen v Coldham & Ors (1983) 153 CLR 297, in particular at 312 wherein the High Court said of an industrial dispute:
“The words are not a technical or legal expression. They have to be given their popular meaning - what they convey to the man in the street. And that is essentially a question of fact. That the expression is ‘industrial disputes’, not ‘disputes in an industry’, as Higgins J noted, makes quite inexplicable the emphasis given in the later cases to limitations on the power derived from the meaning of the word ‘industry’.”
I therefore agree with the submission of Ms Layton that none of the High Court decisions is indicative of the interpretation that an “industrial dispute” cannot include industrial action as part indication of the dispute itself. That, in effect, was the conclusion reached by the Court in Ayres.
I am also unable to agree with this process of reasoning based on s 157. Section 157 was directed to discrimination against an employee on a number of grounds primarily arising out of his/her membership of an association. The section was not directed to an industrial dispute. As the cases cited indicate, an industrial dispute is one which involves not one but a broad section of employees. In this case half of the employees of the Casino participated in the strike.

Mr Hankin, who appeared for the Casino on the hearing of this appeal, in the course of his submissions mounted a similar argument by reference to s 115(n) of the State Act. He referred to the requirement for “lawful action” in s 115(n) as opposed to the wording of s 223(1) which referred not to lawful acts but to “participation in an industrial dispute”. He submitted that the difference in wording between ss 115(d), 115(n) and 223(1) led to the interpretation that lawful acts (including industrial action) could not be the subject of discrimination if they were taken for the purposes of further protecting the “industrial interest” of an association (s 115(n)). A refusal or failure to take action could not be the subject of discrimination (s 115(d)) and being involved in an industrial dispute - as distinct from taking lawful industrial action, prior to an industrial dispute - could not be the subject of discrimination (s 223(1)). He argued that if s 223(1) had the expansive interpretation put forward by the appellants then there would be no work for s 115(n) to do.
In my view, however, this argument also cannot be sustained. Section 115 appears in that part of the Act which deals with freedom of association. It is clearly directed to discrimination against a person by virtue of being the holder of an office within a Union or other similar association as was the case with the former s 157. It clearly contemplates matters which arise by way of the membership of an Association as opposed to the much wider concept of an industrial dispute. In my view, therefore, it is not inconsistent with the provisions of s 223.
Section 156 of the 1972 Act and s 223 of the present Act are in substantially similar terms. Section 156 refers to dismissal “in consequence of” as opposed to s 223 which uses the phrase “for any of the following reasons”. Each section therefore indicates there must be some causal connection between the two events.
Section 156(g) uses the phrase “taking part or being involved in an industrial dispute as opposed to s 223(1)(c) which refers to the employee’s “participation in industrial dispute”. There would not therefore appear to be any significant change in the wording of those two sections.
The definition of “industrial dispute” in the 1972 Act is in essentially the same terms as s 4 of the present Act. There was, however, no definition of “industrial action” in the 1972 Act. Sections 156 and 223 are both concerned with an industrial dispute, ie an action involving a number of employees and their employer and the participation in industrial action by an employee with respect to exactly the same matter which is the subject of the dispute. Accordingly, I consider that Ayres was correctly decided and that the reasoning of Olsson P in that case, as the trial judge found, is analogous to the circumstances which now arise for decision.
In this case there was:
(1) a dispute between the Union and the Casino;
(2).... the dispute involved an industrial matter, that is, the withdrawal by the Casino from the negotiations with respect to the enterprise agreement and the Casino’s attempt to negotiate AWA’s;
(3).... a failure or refusal by approximately 300 of the employees to attend for work; and
(4).... a concession by the Casino that it had discriminated against Burns and the others who had participated in the strike.
To adopt the words of Olsson P in Ayres - if the circumstances of this case do not amount to participation in an industrial dispute it is difficult to envisage any circumstances in which the section would have application.
There are, however, a number of other matters which the respondent sought to raise on the hearing of this appeal by way of a notice of alternative contention. Grounds 1 and 4 of the notice refer to matters which arose subsequent to the making of the order by the trial judge.
It appears from a further affidavit filed by Mason that on 7 December 1998 the Union advised the Casino that it had decided to seek an agreement with it under the Federal Act and initiated a “bargaining period” under s 170 of the Federal Act.
On 18 December 1998, the Casino advised its employees that the Union had advised it of its intention to cause a 72 hour strike in the near future and any striking employees would be “locked out” pursuant to the Federal Act.
On 21 December 1998, the Union notified the Casino, pursuant to s 170 MO (5) of the Federal Act that its members would take industrial action for 72 hours commencing at 7 am on Tuesday, 29 December 1998. The stated purpose of the industrial action was to assist the Union in trying to reach an agreement with the Casino, pursuant to Division 2 of Part VI B of the Federal Act.
On 23 December 1998, the Union applied to the Australian Industrial Relations Commission (the Federal Commission) for an order preventing the Casino from locking out any of its employees. After being made aware of this application the Casino decided not to proceed with its proposal to lock-out employees and the application to the Federal Commission did not proceed.
A strike took place from 7 am on 29 December 1998 to 7 pm on 1 January 1999 but no members of the union were discriminated against for taking part in that action. As at 16 April 1998, it appeared that the Union had not terminated the bargaining period under the Federal Act.
Mr Hankin submitted therefore that the continued operation after 7 December 1998 of the original order made on 2 October 1998 would create a direct inconsistency between the provisions of the Federal Act and the State Act. Properly interpreted the State Act only permitted orders of the Industrial Court to operate while the parties were not subject to the jurisdiction created by the Federal Court.
This matter was not mentioned at all to the Full Industrial Court but in any event, in my opinion, nothing which has occurred since the date of the making of the order makes it inappropriate for the original order to stand.
It may be that as from the date on which the Federal jurisdiction was invoked the order made by the trial judge ceased to have effect but that is not the issue for determination by this court. Our concern is whether the order made by the trial judge in the first instance was appropriate. If events have occurred subsequent to the making of that order which render it invalid or give rise to an application for its discharge, that is a separate issue. I do not think that the attempt by the Union to negotiate a certified agreement under Federal legislation with the Casino should mean that Burns should thereby lose her protection from discrimination provided by the State legislation.
Ground 2 of the notice relates to the failure to give the Casino a fair and adequate opportunity to present its case before the judge of first instance. As I have already mentioned, the Full Court considered this matter and held that it was too late in the day for the Casino to complain it had not been given a fair hearing. In so doing the appeal court was clearly correct. There does appear to have been some initial misunderstanding by counsel for the Casino as to whether the matter was proceeding by way of interim or final order. However, when the judge indicated that he intended to proceed by way of a final order, counsel (one very experienced in this jurisdiction) was provided with the opportunity to take instructions with respect thereto. He subsequently informed the court that his instructions were that the Casino “is prepared to proceed with the hearing on the basis that this hearing is for, in effect, final determination of the controversy”. In my view that was the end of the matter.
Ground 3 relates to the finding of credit made by the trial judge. There was nothing identified, however, which in my view would be sufficient to bring this matter within the exceptional circumstances described in DeVries such as to require an appellate court to interfere. In any event, the matter would seem to be somewhat academic in view of the express finding as to the concession made by the Casino with regard to discrimination against the employees involved in the strike.
Grounds 4 and 5 relate to the issues in Ayres which have already been considered.
Ground 6 suggests that, as a matter of discretion, it was not appropriate for the judge at first instance to make the order which is the subject of this appeal. I believe this matter can be shortly resolved. Mason’s evidence was as follows:
“Q..... Is it the case that it is your present intention that until you are satisfied that there is no future industrial action that may occur it will be your intention not to roster those people who - or not give preference to those people who took industrial action on the Saturday night.
A.We believe that we’ve got an obligation as managers to do everything we can to protect the interests of the business - that’s what we’re paid to do - so again it would make logical sense to us to roster those people who we believe will be reliable to work. Now, obviously if there is no threat of industrial action then -
Q...... Say in a week’s time if you still have the view that there might be these rumours about industrial action around it will still be your intention to maintain the present policy and, that is, rostering those people who didn’t participate in the industrial action on Saturday, 5 September.
A.Again, we would have to do the right thing and roster those who we believe will be reliable.
Q...... And that would be those people who didn’t participate in the industrial action on 5 September 1998.
A.Initially, yes, but that doesn’t mean that everyone else doesn’t get rosters.
Q...... No, but they get them, I suppose - they are not preferred. Other people fill the rosters before they get the opportunity to fill the rosters.
A.     Yes.
Q...... And that policy will continue for as long as it is the case that there may be rumoured industrial action.
A.     Yes, strongly rumoured.
Q...... Will that policy continue if people have demonstrated perhaps this weekend that they were prepared to work.
A.     No. Again, already the rumours are starting to soften a little.”
And further
“Q... So it doesn’t really matter if people demonstrate that they are prepared to work the shifts that they have been rostered since 5 September; that really won’t influence your decision about the policy of rostering in preference to those people who didn’t participate in the industrial disputation on Saturday night until you are satisfied that there is no prospect of further industrial action.
A..... No, I didn’t say that.
Q..... I am asking you.
A..... What I’m saying is that we’re concerned that if we go back to normal then we could have a snap industrial action at less than half an hour’s notice and we have got to be prepared for that.
Q..... So you need this threat hanging over their head to ensure that they don’t take industrial action.
A..... No.
Q..... What’s the logic of it. Why is it there.
A..... The logic is that we continue to roster people who we believe are reliable until the threat of industrial action has gone.”
This evidence clearly indicated the likelihood of continuing discrimination against employees involved in industrial action. It therefore amply supported the favourable exercise of discretion by the trial judge.
In my opinion the appeal should be allowed, the order of the Full Court of the Industrial Court set aside and the order of the trial judge re-instated.

[1999] SASC 279

16 July 1999