Clyne v Deputy Commissioner of Taxation

STAPLETON v. AFRICAN LION SAFARI PTY. LTD. (1982) 65 FLR 61
Conciliation and Arbitration - Costs

COURT

FEDERAL COURT OF AUSTRALIA

INDUSTRIAL DIVISION
Ellicott J.(1)

CATCHWORDS

Conciliation and Arbitration - Registered organization - Member - Dismissal by employer - Whether employee entitled to benefit of award - Whether purported oral variation of award took effect prior to signing of formal order - Whether employee seeking better industrial conditions - Whether employee delegate of organization pursuant to rules - Whether employee's membership of organization or seeking to improve industrial conditions substantial and operative reason for dismissal - Work performance of employee - Discharge of onus of proof by employer - Costs - Conciliation and Arbitration Act 1904 (Cth), ss. 4, 5(1)(a), (b), (d), (f), 40(4), 116, 118A(1), 197A - Federal Court of Australia Act 1976 (Cth),s. 43.

Costs - Federal Court's power to award costs in proceedings arising under Conciliation and Arbitration Act - Whether limited to power under Federal Court of Australia Act - Proceedings not instituted vexatiously or without reasonable cause - Conciliation and Arbitration Act 1904 (Cth), ss. 4, 5, 116, 118, 197A - Federal Court of Australia Act 1976 (Cth), s. 43.

HEADNOTE

The informant commenced proceedings which were heard in succession against the defendant alleging that it had dismissed two employees in breach of s. 5 of the Conciliation and Arbitration Act 1904 by reason of the circumstance that they were members of a registered organization (s. 5(1)(a)); that they were entitled to the benefit of an industrial award (s. 5(1)(b)); that they were members of an organization seeking better industrial conditions and were dissatisfied with their conditions (s. 5(1)(d)); and that, being members and delegates of an organization, they did things which were lawful for the purpose of furthering the industrial interests of the organization and its members (s. 5(1)(f)).

Held: (1) (a) In respect of the alleged breaches of s. 5(1)(a) all the relevant facts and circumstances other than the reason for the employees' dismissal had been proved and the onus lay upon the respondent to prove on the balance of probabilities that it did not dismiss the employees for the proscribed reason. (b) It had been proved that the employees were members of an organization seeking better industrial conditions and were dissatisfied with their conditions within s. 5(1)(d). Heidt v. Chrysler Australia Ltd. (1976) 26 FLR 257, followed.

(2) (a) It had not been proved that the employees were entitled to the benefit of an award and thus a breach of s. 5(1)(b) had not been proved. (b) It had not been proved that the employees were delegates of the organization prior to their dismissal and thus a breach of s. 5(1)(f) had not been proved. Section 5(1)(f) contemplates a delegate appointed in accordance with the rules of the organization. Cuevas v. Freeman Motors Ltd. (1975) 25 FLR 67, referred to.

(3) The respondent had established on the balance of probabilities that neither the employees' membership of a registered organization nor their attempt to improve their conditions either actuated, or was a substantial and operative reason for their dismissal. No breach of s. 5(1)(a) or (d) had been proved.

General Motors-Holden's Pty. Ltd. v. Bowling (1976) 51 ALJR 235, applied.

(4) Section 197A of the Conciliation and Arbitration Act 1904 applied to the proceedings and as it was not contended they were instituted vexatiously or without reasonable cause, prevented any order for costs being made against the prosecutor.

HEARING

1981, August 24; September 1-3; December 8-9; 1982, April 7; June 29.

#DATE 29:6:1982

INFORMATION.

The prosecutor, the secretary of a registered organization, brought proceedings which were heard in succession against the respondent alleging breaches by it of s. 5 of the Conciliation and Arbitration Act 1904 arising out of the dismissal of two employees.

W. Haylen, for the prosecutor.

C. Cullen Q.C. and J. Trew, for the respondent.

Cur. adv. vult.

Solicitor for the prosecutor: Frederick Paul Lind.

Solicitors for the respondent: Allen Allen & Hemsley.

T.J.GINNANE

JUDGE1

April 7.

ELLICOTT J. delivered the following written judgment.

Damien Stapleton (the informant), as federal secretary of the Australian Theatrical and Amusement Employees' Association (A.T.A.E.A.) has instituted proceedings pursuant to s. 5 of the Conciliation and Arbitration Act 1904 (Cth) (the Act) against African Lion Safari Pty. Ltd. (the defendant) in relation to the dismissal of its former employee, Brian Tyrrell. He alleges that, on or about 16th June, 1981, the defendant in breach of s. 5 dismissed Mr. Tyrrell by reason of the circumstances that he was a member of an organization, that is, the A.T.A.E.A., that he was entitled to the benefit of an industrial award, that he was a member of an organization seeking better industrial conditions and was dissatisfied with his conditions, and that, being a member and delegate of an organization, did things which were lawful for the purpose of furthering and protecting the industrial interests of the organization and its members, being acts and things within the limit of the authority expressly conferred on him by the organization in accordance with the rules of the organization. (at p62)

Section 5 of the Act (so far as it is relevant for these proceedings) provides as follows:

"5.(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 -

(a) is or has been, or has at any time proposed, to

become, an officer, delegate or member of an organization, or of an association that has applied to be registered as an organization; or . . .

(b) is entitled to the benefit of an industrial agreement or an

award; or

(d) being a member of an organization which is seeking better

industrial conditions, is dissatisfied with his conditions; or

. . .

(f) being an officer, delegate or member of an organization, has done, or proposes to do, an act or thing which is lawful for the

purpose of furthering or protecting the industrial interests of the organization or its members, being an act or thing done within the limits of authority expressly conferred on him by the organization in accordance with the rules of the organization.

. . .

(4) In any proceedings for an offence against this section, if all the relevant facts and circumstances, other than the reason or intent set out in the charge as being the reason or intent of an action alleged in the charge, are proved, it lies upon the person charged to prove that that action was not actuated by that reason or taken with that

intent." (at p63)

It is clearly established that, as a result of s. 5(4) of the Act, the onus is placed upon the informant to prove beyond reasonable doubt all the elements constituting the offence except the reason or reasons for the defendant's action. It is for the defendant to prove, on the balance of probabilities, that it did not dismiss Mr. Tyrrell for the reasons alleged (cf. s. 5(4) of the Act and also see Atkins v. Kirkstall Repco Pty. Ltd. (1957) 3 FLR 439; Roberts v. General Motors Holden's Employees' Canteen Society Inc. (1975) 25 FLR 415; Heidt v. Chrysler Australia Ltd. (1976) 26 FLR 257; Jones v. Thiess Bros. Pty. Ltd. (1977) 30 FLR 422; Lewis v. Qantas Airways Ltd. (1981) 54 FLR 101; Childs v. Metropolitan Transport Trust (1981) IAS, Current Review 946) (at p63)
The defendant company is the operator of the African Lion Safari at Warragamba. It is an amusement centre with primarily an animal park through which paying members of the public may drive their vehicles and view wild animals from the safety of their vehicles. There is a lion reserve and a tiger reserve. The centre also has other attractions such as a zoo, dolphinarium, a section for farm animals, train rides etc. and a restaurant. The centre has been in operation for thirteen years. The defendant operates similar parks in other States. (at p63)
Brian Tyrrell, prior to working in Australia, had been employed at a London dolphinarium by an associated enterprise, Pleasurama Amusement Parks. The London operation was closing down and a vacancy was offered to him in Australia, at the African Lion Safari at Warragamba, which he accepted. (at p64)
He was first employed at the Safari in 1972 until early 1974 when he resigned. He was re-employed in August 1974 but resigned again prior to the ensuing Christmas. He was again employed at the Safari from just after Easter 1975 and remained so employed until he was dismissed on 16th June, 1981. During these periods of employment Mr. Tyrrell assisted contractors employed to build the dolphinarium, undertook general maintenance work, operated the filtration plant and at times acted as a park warden. (at p64)
Mr. Tyrrell did not belong to a union until 15th December, 1980. Prior to that, however, A.T.A.E.A. had become interested in extending its membership if possible to cover employees of the defendant. (at p64)
In June 1980 a letter of demand attaching a log of claims was served by A.T.A.E.A. on the defendant and on 12th August, 1980, Robinson J., a Deputy President of the Australian Conciliation and Arbitration Commission found that an industrial dispute existed to which A.T.A.E.A., the defendant and other companies were parties. (at p64)
On 24th November, 1980, Miss Pikette and the informant, as officers of A.T.A.E.A., visited the park to have a look at the operations as they applied and to ascertain just what interest A.T.A.E.A. would have in the park. On this visit they discussed matters with Mr. Stafford Bullen, the managing director of the defendant and a thorough inspection took place. Mr. Bullen indicated, inter alia, that, in his view, when unions came into some establishments and wages were increased, the business became unviable. He said he didn't want this to happen at Warragamba and that if he was forced to pay increased rates of pay he would consider closing the park. He could see no advantage to any employee in the park being covered by a union. (at p64)
In December 1980 Mr. Tyrrell and three other employees went to Oberon to a house warming party. They were expected back at work the next day, Sunday 14th, but did not return, nor did they attempt to ring to explain their absence. On their return disciplinary action was taken. One employee was dismissed and the others were suspended. Mr. Tyrrell was suspended from his employment for three days but subsequently was paid in respect of two of them. (at p64)
On 15th December, 1980, because of their suspension, Mr. Tyrrell contacted the union. He asked whether their suspension, as well as their wages and other conditions of employment were fair. (at p64)
On the same day Mr. Tyrrell filled in an application form to become a member of A.T.A.E.A. and paid to it a joining fee and subscription. He was accepted as a member thereof on 17th December, 1980. (at p64)
As a result of this contact with the union, arrangements were made between the informant and Mr. Tyrrell for a meeting to be called of interested staff at the park. The meeting was held in January 1981 at the Warragamba Town Hall and was attended by some eight members. At it the type of work, rates of pay and the general safety in the park were discussed. (at p65)
Following this meeting Mr. Tyrrell was asked by other members of the staff to approach Mr. Eric Dzenis, the general manager of the park, to put forward a log of complaints and ask for a pay rise. He saw Mr. Dzenis and requested an increase from $3.34 to $5.50 an hour in pay. He also complained about the lack of security and the employment of school children. During the same conversation he told Mr. Dzenis that he was a member of the union. Mr. Tyrrell says that at this conversation Mr. Dzenis said that if they got a pay rise Mr. Tyrrell's job would probably be on the line to which he replied "I expect that". (at p65)
Some days after this conversation a meeting of staff was called by Mr. Stafford Bullen, the managing director, at a restaurant on the defendant's premises. Approximately twenty employees attended this meeting. Mr. Bullen indicated to them that the company couldn't afford a pay rise and that if the staff attempted through a union or any other way to bring about a pay rise the park could close. Mr. Tyrrell alleges he said that he was running the operation and if they didn't like it they could go elsewhere. (at p65)
On 18th May, 1981, A.T.A.E.A. applied to Mr. Commissioner Heffernan to make a "roping-in" award so as to have the Theatrical Employees (Recreational Complex and Theme Park) Award 1979 apply, inter alia, to the defendant. The Commissioner granted the application. He said he proposed to vary the award to include the defendant in the list of respondents. He said: "An order will be issued which will have the effect of roping (African Lion Safari) into the award and the roping-in decision will apply from the first pay period to commence on or after today's date." (at p65)
Mr. Tyrrell was informed of this decision on the day it was given and he, in turn, that day, informed Mr. Dzenis. (at p65)
About a week or so after this a meeting took place between officers of A.T.A.E.A. and employees of the defendant including Mr. Tyrrell. At this meeting he was asked if he would be prepared to be the union delegate and he agreed. The union subsequently sent him a receipt book and application forms. He approached other members of the staff and asked them if they wanted to join the union. Between 6th and 10th June (inclusive) nine employees indicated they did and he accepted joining fees from them. This money was then sent by him to the A.T.A.E.A. office. (at p65)
Shortly after the meeting, when he was asked to be a delegate, and before his dismissal, Mr. Tyrrell informed Mr. Dzenis and the park supervisor, Mr. Bruce, that he had been asked to be a delegate and that he had accepted. (at p65)
On 16th June, 1981, Mr. Tyrrell was called into Mr. Dzenis' office. In the course of the conversation that then took place, Mr. Tyrrell was dismissed from his employment with the defendant. I shall deal in greater detail with this conversation when considering the reasons for his dismissal. (at p66)
As stated earlier, Mr. Commissioner Heffernan, on 18th May, 1981, indicated that a roping-in award would be issued. On 22nd June, 1981, he signed an order in relation to the award in the following terms: "ORDER - A. The above award is varied as follows: By adding the following to cl. 29 in the appropriate alphabetical order: African Lion Safari Pty. Ltd., Marches Road, Warragamba Dam. B. This order shall come into effect from the first pay period to commence on or after 18th May, 1981, and shall remain in force for a period of twelve months." (at p66)
R. 70 of the rules of A.T.A.E.A. which is headed "Delegate" provides that the executive of each branch may in writing appoint one or more representatives. It then sets out the duties they are to perform and carry out. These include collecting and accounting for fees, levies and subscriptions from members of their branch, watching over the general interests and reporting to the secretary any infringement of the rules or breaches of industrial awards and distributing and placing on noticeboards all matters as requested by the branch secretary. No document was signed by the executive of the New South Wales branch appointing Mr. Tyrrell a delegate under r. 70 or otherwise. What happened was that at a meeting of the New South Wales executive on 17th June, 1981, his appointment was reported as part of a report from the officers who attended the meeting and that report was adopted. (at p66)
As indicated earlier, as a result of the application of s. 5(4) of the Act, the onus is on the informant to prove beyond reasonable doubt all the elements constituting the offence except the reason or reasons actuating the dismissal. (at p66)
On the evidence before me and having in mind admissions made on behalf of the defendant, I am satisfied beyond reasonable doubt of the following: (a) Bruce Tyrrell was employed by the defendant at all relevant times; (b) between 17th December, 1980, and 16th June, 1981 (inclusive) he was a member of A.T.A.E.A.; (c) the defendant dismissed Bruce Tyrrell on 16th June, 1981; (d) A.T.A.E.A. was at all material times an organization registered pursuant to the Act. (at p66)
These findings are sufficient to place upon the defendant the onus of establishing on the balance of probabilities that in dismissing Mr. Tyrrell it was not actuated by the reason stated in s. 5(1)(a) of the Act, namely, that he was a member of an organization. However, the informant also relies on reasons which relate to the circumstances specified in pars. (b) (d) and (f) and the onus is on him to prove beyond reasonable doubt that the circumstances specified in those paragraphs existed in this case. (at p66)
Paragraph (b) in this case covers the alleged circumstance that Mr. Tyrrell was entitled to the benefit of an award. I am not satisfied beyond reasonable doubt that Mr. Tyrrell was entitled to the benefit of an award. (at p67)
Counsel for the informant submitted that the paragraph was satisfied because of Mr. Commissioner Heffernan's decision on 18th May when he decided that a roping-in order would be issued. The actual order, however, was not signed and dated until 22nd June, 1981. (at p67)
I am prepared to assume, for the purposes of deciding this matter, that the Commissioner's action in making this order amounted to a valid variation pursuant to the Act. I do not find it necessary to come to a concluded decision on the matter because I think it is clear that if it was a valid variation it was made not on 18th May, at the oral hearing, but on 22nd June, 1981, and that, therefore, there was no award in existence up to and including 16th June, 1981 (when he was dismissed) to the benefit of which Mr. Tyrrell was entitled. (at p67)
Section 40(4) of the Act provides: "An award or decision made by a single member of the Commission shall be made by an instrument signed by the member and the instrument shall be dated with the date on which it is so signed, which date shall, for the purposes of this Act, be deemed to be the date of the award or decision." (at p67)
"Award" is defined in s. 4 as including an order. The purported variation was by means of an order. In my opinion s. 40(4) applies to it and, as a result, this order was not made, even if valid, until 22nd June. It follows from this that Mr. Tyrrell was not entitled to the benefit of an award at any time up to the time of his dismissal on 16th June. I am therefore not satisfied that the facts and circumstances relevant to an offence involving s. 5(1)(b) have been proved beyond reasonable doubt. (at p67)
Paragraph (d) of s. 5(1) is also relied upon. Counsel for the informant submitted that Mr. Tyrrell was a member of A.T.A.E.A., that it was seeking better industrial conditions and that he was dissatisfied with his conditions. (at p67)
I am satisfied beyond reasonable doubt that the circumstances for the operation of par. (d) existed in this case. Mr. Tyrrell was, as I have already held, a member of A.T.A.E.A. from 17th December, 1980, onwards. In June 1980 the union served a log of claims on the defendant claiming better industrial conditions from it which became the basis of a finding by Robinson J. that an industrial dispute existed between A.T.A.E.A. and the defendant. (at p67)
The informant, as an A.T.A.E.A. official, held a meeting at Warragamba Town Hall in January 1981 with employees of the defendant, including Mr. Tyrrell, at which industrial conditions at the defendant's park were discussed. It was decided to get further information on rates of pay in similar establishments. Because it was taking a long time to get the information, other members of the staff, at a time subsequent to this meeting, asked Mr. Tyrrell to approach Mr. Dzenis and put forward a log of complaints and ask for a pay rise. This he subsequently did. He asked for a substantial pay rise and complained about lack of security. Mr. Dzenis says that subsequently other members of staff had disagreed with some of the complaints made by Mr. Tyrrell but he acknowledges that he asked for a pay rise from $3.40 an hour to $5.50 an hour. (at p68)

At the meeting which Mr. Bullen called at the restaurant, reference was made, according to Mr. Dzenis, to the increase "the union delegate had asked for". (at p68)
Early in May 1981 discussions took place between Miss Pikette, employed by the union as an industrial research director, and Mr. Tyrrell relating to conditions with a view to identifying the changes that would have to be made to the award in order to apply it to the defendant. The award included provisions as to wages which were not themselves entirely appropriate to the defendant. The log of claims served in 1980 also had claims in respect of wages. This evidence satisfies me beyond reasonable doubt that A.T.A.E.A. was seeking better industrial conditions which included wages and that Mr. Tyrrell was dissatisfied with his conditions as to wages. I think the evidence also meets the test in relation to par. (d) suggested by Northrop J. in Heidt v. Chrysler Australia Ltd. (1976) 26 FLR 257, at pp. 269-270, namely, that the words "an organization which is seeking better industrial conditions" do not refer to the general objective of an organization but to identified industrial conditions which the organization is seeking to better and that it is those conditions with which the employee must be dissatisfied. (at p68)
It follows in my view that the circumstances referred to in par. (d) are established beyond reasonable doubt in this case. (at p68)
The remaining allegation is that par. (f) applies. It will only apply in this case if Mr. Tyrrell was, prior to his dismissal, a delegate of A.T.A.E.A. within the meaning of that paragraph. (at p68)
I am not satisfied beyond reasonable doubt that he was. (at p68)
The word "delegate" in s. 5(1)(f) could, I think, cover a person who was not actually called a delegate but whose functions were those of a delegate. He might, for instance, be called a "representative" yet be a delegate for the purposes of the paragraph: see Cuevas v. Freeman Motors Ltd. (1975) 25 FLR 67, at pp 71-75 (at p68)
Mr. Tyrrell intended to perform and did, in fact, perform, the duties of a delegate after the meeting in May 1981. However, he was not appointed in writing, the only formal act being the adoption of a written report at a meeting of the New South Wales branch of A.T.A.E.A. which took place after his dismissal. None of the steps taken by the executive or by officers of the union, on the evidence before me, amounted, in my opinion, to an appointment in writing in accordance with r. 70. Even if they did the only "writing" would be the minutes of the branch meeting but these did not come into existence until after his dismissal. (at p69)
The question which remains on this aspect is whether par. (f) envisages a delegate who undertakes the duties of a delegate with the authority of the organization but is not appointed in accordance with the rules of the organization. (at p69)
In my opinion, par. (f) contemplates a delegate who is appointed in accordance with the rules. It speaks of a delegate doing an act or thing which is lawful for the purposes of furthering the industrial interests of the organization "being an act or thing done within the limits of authority expressly conferred on him by the organization in accordance with the rules of the organization". These latter words, in my opinion, indicate that the authority which he exercises is one that is conferred in accordance with the rules. This can only be done, in this case, pursuant to r. 70 and this requires a delegate to be appointed in writing. (at p69)
This was not done prior to his dismissal, as I have held, and therefore Mr. Tyrrell was not "a delegate" within the meaning of par. (f) notwithstanding the fact that the duties he performed with the knowledge of the organization and the subsequent approval of its executive were those of a delegate. (at p69)
In the light of these findings it remains to consider whether the defendant has proved, on the balance of probabilities, that its action in dismissing Mr. Tyrrell was not actuated by reason of any of the circumstances that he was a member of A. T. A. E. A. (par. (a)), or that being a member of A. T. A. E. A. which was seeking better industrial conditions, he was dissatisfied with his conditions (par. (d)). (at p69)
On the authorities, because the onus is on it, the defendant must satisfy me, on the balance of probabilities, that neither of these circumstances was a substantial or operative reason for dismissing Mr. Tyrrell, otherwise I must find it guilty of an offence against s. 5 (1) of the Act: see General Motors-Holden's Pty. Ltd. v. Bowling (1976) 51 A L J R 235 It is not enough for the defendant to establish that neither of these was the sole or predominant reason. (at p69)
In presenting its case on this matter, the defendant went into evidence with a view to establishing that the reason for Mr. Tyrrell's dismissal was his poor work performance and the fact that he indicated he was leaving and that alternative arrangements had been made to provide plumbing and electrical maintenance which he might otherwise have provided. The persons involved in the dismissal were Mr. Dzenis, the general manager, Mr. Hayworth Booth a former general manager, but then a consultant executive and Mr. Stafford Bullen, the managing director of the defendant. (at p69)
Nothing of real substance in this case turns on the decision as to whether I should accept the prosecutor's witnesses or the defendant's. There are differing versions of events and some minor conflicts emerge. A vital witness was Mr. Dzenis, the defendant's manager. It was he, of course, who terminated Mr. Tyrrell's employment and it was he who had discussions with Mr. Hayworth-Booth and Mr. Stafford Bullen before doing so. The authorities indicate that it is important to know what actuated not only the person who dismissed the employee but also superiors who gave him instructions in relation to it. (at p70)
Having observed Mr. Dzenis in the witness-box, I regard him as an honest and reliable witness and I prefer to accept his version of the facts where a choice has to be made. All the witnesses are, in my view, basically truthful. Some were at times prone to exaggeration or to give impressions rather than evidence. (at p70)
What is also important, as I have indicated, is whether I accept the evidence of Mr. Hayworth-Booth and Mr. Stafford Bullen, particularly their evidence as to why they thought Mr. Tyrrell should be sacked. Obviously, although Mr. Dzenis was the one who normally decided to dismiss employees, it is proper to infer from the evidence that, in a given case, he would have followed the direction of Mr. Hayworth-Booth or Mr. Bullen. (at p70)
The evidence is clear that between June 1980 and 16th June, 1981, there was considerable activity by the union in relation to employees at the defendant's park. There were a number of hearings before the Commission, several visits by union officials to the park and a number of meetings with employees. Some employees joined the union and demands were made by Mr. Tyrrell seeking better wages etc. following a meeting called by the union and requests by other employees. (at p70)
In March or April 1981 Mr. Bullen called a meeting of employees and he admits that at that meeting he could have said it didn't matter if everybody joined ten unions. It had no effect on what the company could pay and there was no purpose in joining a union. He did not like unions and his opposition to them was well known. He didn't consider that an award for the park was appropriate. (at p70)
In late May 1981 A. T. A. E. A. officials purported to appoint Mr. Tyrrell a delegate of the union and this immediately became known to Mr. Dzenis. (at p70)
It is not surprising of course that against this background a suspicion might arise that Mr. Tyrrell was dismissed because of his union membership and activity and dissatisfaction with his conditions. (at p70)
The defendant however submits that neither of these were substantial or operative reasons. It is claimed that he was dismissed for other reasons, namely, that he had proved to be an unsatisfactory employee, that he had expressed a firm intention of leaving a month or so before he was dismissed and that some steps had been taken in anticipation of his leaving to use contractors in his stead. When he indicated he was not leaving on 16th June, 1981, his employment was terminated. (at p70)
The effect of s. 5(4) of the Act is not to create any special difficulty for an employer who wishes to dismiss an employee who is a union member or official. As Gibbs J. (as he then was) said in General Motors-Holden's Pty. Ltd. v. Bowling at p. 239: "However, it would in my opinion be wrong to think that there is any special difficulty in the way of an employer who seeks to prove that in dismissing an employee he was not actuated by the fact that the employee was a shop steward or other delegate of an organization. The onus of proving that the fact that the employee held the position was not a substantial and operative factor in the dismissal is to be discharged according to the balance of probabilities and is not to be made heavier by any presumption that if an employee who is dismissed for disruptive activities happens to be a shop steward the latter circumstance must have had something to do with his dismissal. (at p71)
It is understandable, however, that the section places the onus on the employer, because the reasons for dismissing an employee will often be matters which are peculiarly within the knowledge of the employer. If the onus provision were not there, the object of the section would no doubt, in many cases, be defeated through lack of proof by the prosecutor beyond reasonable doubt that the reason was one of the circumstances mentioned in s. 5 (1). It does not mean, however, that an employer who doesn't like unions or employees being involved in union activity can never dismiss an employee so involved without breaching the section. (at p71)
The total effect of the section including the onus provision is to make such an employer careful that he has other reasons for dismissing such an employee before doing so. The mere existence of an anti-union attitude in the mind of the employer does not prevent proof on his part that other reasons actuated the dismissal. It does mean however that the court, in determining whether the onus has been discharged will need to have before it cogent evidence as to the actual reasons. (at p71)
Mr. Dzenis says that on 16th June, 1981, he called Mr. Tyrrell into his office and told him that he had indicated that he intended to leave and that they had made arrangements with contractors to perform his work. Mr. Tyrrell then said that he did not resign, he did not need to leave and that he had been told that this would happen. Mr. Dzenis then dismissed him. Mr. Tyrrell's evidence was to the same effect. (at p71)
When asked what were the reasons for Mr. Tyrrell's termination, Mr. Dzenis answered: "Well one was that he had shown his intention to leave; also his work had certainly deteriorated over the previous six months or so. He needed more constant supervision by myself. He realized that Andrew Hayworth- Booth who was the general manager and associate director did not have as much say in the running of the company as previously, and he used this to his advantage, because he realized that he could get away with a bit more with me - I am a bit more lenient - and there was the matter of our friendship involved. (at p72)
He also said he had dismissed him because he had already got contractors to do his work and that he was placed in a position where he had committed himself to a refrigeration mechanic. (at p72)
Mr. Dzenis told Mr. Hayworth-Booth that Mr. Tyrrell was going to resign. Mr. Hayworth-Booth had until mid-1980 been general manager and executive director of the defendant. After that and up to the time of the dismissal he was a consultant and Mr. Dzenis reported to him. He says that when he told him Mr. Hayworth Booth reminded him that Mr. Bullen and he had often spoken to him previously with regard to engaging contract labour to do the electrical and plumbing work. (at p72)
Mr. Hayworth-Booth told him that the wheels were set in motion and Mr. Tyrrell had shown his intention to leave and that the time had come when they had to dismiss him. (at p72)
Mr. Hayworth-Booth said in evidence he had discussed Mr. Tyrrell with Mr. Dzenis from mid-1980 and Mr. Dzenis had indicated that Mr. Tyrrell was increasingly difficult to handle and his work performance was not what it had been. He encouraged him to make the decision that if any employees were not satisfactory to him he should terminate them. He said he first heard of Mr. Tyrrell leaving around February 1981 when Mr. Dzenis told him he had heard a rumour to that effect. He asked Mr. Dzenis to find out further details which he did. Mr. Dzenis told him he had spoken to Mr. Tyrrell and that Mr. Tyrrell had told him he was going to leave to join a former colleague at Oberon cutting timber where he believed the money to be earned was very high and that he intended to leave when some work had been carried out on a new freezer unit. He told Mr. Dzenis that he thought that was an ideal solution to the problem. Mr. Tyrrell had become an increasingly difficult person to handle and as it was reported to him, it had got to the stage where his employment would have to be terminated. He was aware, however, that Mr. Tyrrell had some association with the union and that that could lead to complications. He believed that if they terminated him when he probably should have been terminated, which was early in 1981, that this could lead to complications with the union because of his role. He said that Mr. Tyrrell's activities as a member of the union did not weigh in his mind as a reason for his termination but as a complication. If anything, it delayed the process of him being terminated. Mr. Dzenis came to speak to him about the time the work on the freezer unit was nearing completion and mentioned that the work was all but completed and what should he do about Mr. Tyrrell. Mr. Hayworth-Booth told Mr. Dzenis to find out whether Mr. Tyrrell still planned to leave and if he did not plan to leave to terminate him. Mr. Dzenis reported back to him after he was terminated. (at p72)
When asked in cross-examination about the factors that played a role in the decision he made that Mr. Tyrrell be dismissed he said: "The decision to dismiss Tyrrell was for his work performance and his general attitude. The fact that he was a member of the union complicated the matter but if anything it kept him employed for longer than he should have been." (at p73)
He admitted having a personal view that in small companies such as the defendant's, unions were not appropriate or necessary, but denied that that had any bearing on the decision to terminate Mr. Tyrrell. (at p73)
Mr. Stafford Bullen, the managing director of the defendant said that Mr. Tyrrell's workmanship was criticized and he was told that he had been given notice but would not mind staying until after the freezer unit was finished. He said that having heard that he was going he accepted it. Mr. Bullen's recollection was that Mr. Tyrrell went to Mr. Dzenis and said he didn't want to go and that that was mentioned to him and he, Mr. Bullen, said not to accept Mr. Tyrrell's change of mind and that he should go. He knew that Mr. Tyrrell was a member of the union, and he agreed that his union membership was raised when he had a discussion about his leaving the company with Mr. Hayworth-Booth and Mr. Dzenis, but he denied that that was a factor that influenced his decision to suggest a termination of his employment. (at p73)
He also confirmed that there had been discussions with Mr. Hayworth-Booth about obtaining contractors for maintenance work which in his experience had proved cheaper than hiring day labour. (at p73)
Although Mr. Tyrrell's membership of the union and his union activity was in their minds, I think that the proper conclusion from this and other evidence to which I will now refer is that, on the balance of probabilities, neither his membership nor his attempt to improve his conditions actuated, or was a substantial and operative reason for, his dismissal. (at p73)
The reasons given for his dismissal were that Mr. Tyrrell had indicated his intention to leave and steps had been taken to engage subcontractors in his place and that his work performance had become increasingly unsatisfactory. On the evidence before me I am satisfied that these were in fact the reasons which actuated his dismissal. (at p73)
Mr. Dzenis says that Mr. Tyrrell indicated he might leave and go timber cutting to Oberon where there were already friends engaged in this work. At first he didn't give a definite time. However, in May 1981 he finally asked Mr. Tyrrell to let him know whether he intended to leave or stay and Mr. Tyrrell said he would be leaving at the end of the month. At the time a refrigeration unit had to be finished and Mr. Tyrrell was to do the electrical work. He was asked to stay until that work was completed to which he agreed. Mr. Dzenis then made arrangements with independent contractors to do the plumbing and electrical maintenance after Mr. Tyrrell left. (at p74)
Mr. Tyrrell also took steps to dispose of some of his personal effects. He offered Mr. Dzenis part of his fishing gear (the salt water equipment) but Mr. Dzenis was not interested. In May 1981 he approached Mr. Bruce asking him if he wanted to buy his diving gear. Mr. Bruce purchased it. (at p74)
He also tried to dispose of an armoured personnel carrier - a collector's item which was in pieces on the premises. He asked representatives about chain saws for use at Oberon. (at p74)
The evidence also establishes to my satisfaction that in the view of his superiors his work performance had worsened. Mr. Bruce, the park supervisor and Mr. Dzenis testified to this. A great deal of evidence was given in relation to this and I do not propose to go through it in detail. (at p74)
Mr. Bruce regarded Mr. Tyrrell's work as totally unprofessional and unskilled and instanced his work and general attitude as being unsatisfactory. He said that Mr. Tyrrell had been there a lot longer than he and that although he had the authority to do so, he was not prepared to sack him but he did on many occasions ask Mr. Dzenis that he either be straightened out or dismissed. However, Mr. Dzenis saw value in having Mr. Tyrrell there in case of breakdowns for electrical work. Mr. Bruce also regarded it as a problem for Mr. Dzenis to dismiss Mr. Tyrrell because they were fishing mates. The fact was that in the six months prior to 16th June, 1981, Mr. Tyrrell openly did what he liked and so far as he was concerned he washed his hands of the matter. (at p74)
Mr. Dzenis gave evidence about the standard of Mr. Tyrrell's work and his attitude to his job. This included the poor standard of particular work, having to chase him up to do things, the taking of long lunch and smoko breaks, sleeping during working hours and rudeness. (at p74)
Mr. Dzenis confirmed that Mr. Bruce had complained to him on a number of occasions about Mr. Tyrrell. He also asked him to terminate his employment. However, Mr. Dzenis had at first disagreed. Mr. Tyrrell had been there quite a number of years and Mr. Dzenis considered him a friend and he felt he was useful. His services at times were required at odd hours and he was handy in that respect. However, he did have problems with the work Mr. Tyrrell was doing under his supervision both during 1981 and prior thereto. Mr. Dzenis gave a number of instances of this. (at p74)
In relation to the standard of his work in 1981 Mr. Dzenis said: "In 1981 his work as far as I am concerned did deteriorate. His heart was just not in the work. Unless it was a project in which he was particularly interested, he would take his time. He was very slow about it. He constantly had to be reminded to go back to the job." (at p74)

Mr. Dzenis was asked why he didn't dismiss him in December 1980 after he had failed to return from Oberon and said that at that stage he still considered him worthwhile but after that his work performance altered. (at p75)
The suggestion was made that after December 1980 Mr. Tyrrell's work performance had not deteriorated and that the only change in the situation was his union membership and activity. Mr. Dzenis and Mr. Bruce refuted this suggestion and I am satisfied on the evidence that in the period of six months before his dismissal his work performance did decline. By May 1981 I think it is clear that Mr. Dzenis had formed the view that it was in the interests of the defendant, having regard to Mr. Tyrrell's work performance, that his employment be terminated. (at p75)
One matter which was raised was whether Mr. Tyrrell was regarded as a trouble maker because of his union activities. There was evidence that he had harrassed employees to join the union and that some had complained to Mr. Dzenis. He didn't mind employees being members of the union but he did object to them being forced. (at p75)
I do not think there is any doubt, that, from the time he became a member of the union, Mr. Tyrrell was regarded to some extent as a trouble maker, not because he was a union member but because he was the person chosen to seek better conditions for employees and extend the union membership among employees. (at p75)
Earlier in this judgment I referred to the dislike on Mr. Bullen's part of unions and it would be very easy to infer from this and from the attitude towards Mr. Tyrrell as a trouble maker that his union membership and pursuit of better conditions were factors in his dismissal. (at p75)
However, I have had placed before me positive and cogent evidence from witnesses whom I accept, that the reasons which actuated his dismissal were not these but those I have mentioned. It is clear that Mr. Bullen's dislike of unions remained throughout and this has caused me to give careful consideration to whether this was a substantial and operative factor in the dismissal but I am satisfied that it was not. (at p75)
In my opinion, therefore, the information should be dismissed.

June 29.

FURTHER REASONS FOR JUDGMENT (at p75)
On 7th April last I gave judgment in this matter and ordered that an information by Damien Stapleton (the informant) claiming that African Lion Safari Pty. Ltd. (the defendant) had committed a breach of s. 5 of the Conciliation and Arbitration Act 1904 (Cth) (the Act) be dismissed. (at p75)
In making that order I made no order as to the costs of the proceedings. The defendant has since applied for an order that the informant pay the defendant's costs of the proceedings. The informant claims that I have no power to make such an order first because I have already given judgment dismissing the information and, in effect, am now functus officio and, secondly because of the provisions of s. 197A of the Act. (at p76)
I propose to deal with this matter on the basis that I am not precluded from doing so because I have already given judgment. However, I am satisfied that, because of the provisions of ss. 118A(1) and 197A of the Act, this Court has no power, in any event, to make such an order. Section 197A provides:

"197A. A party to -

. . . (b) a proceeding, including an appeal, before the court . . . in a matter arising under this Act; or

. . . shall not be ordered to pay any costs incurred by any other party to that proceeding except where the party against whom the order is made instituted the proceeding vexatiously or without reasonable cause." (at p76)

It is not contended that these proceedings were instituted vexatiously or without reasonable cause. The defendant contends that "the Court" referred to in par. (b) of s. 197A does not include this Court and that this Court's power to award costs in this matter is to be found in s. 43 of the Federal Court of Australia Act 1976 (Cth). That section provides:

"43.(1) The Court or a Judge has jurisdiction to award costs in all

proceedings before the Court (including proceedings dismissed for want of jurisdiction) other than proceedings in respect of which any other Act provides that costs shall not be awarded.

(2) Except as provided by any other Act, the award of costs is in the discretion of the Court or Judge." (at p76)

Section 4 of the Conciliation and Arbitration Act defines "the Court" as meaning, except where otherwise clearly intended, "the Australian Industrial Court created by this Act". However, Pt VA which includes s. 118A was inserted in the Act in 1976 at the same time as the Federal Court of Australia was established. This Part purports to deal with the transfer of jurisdiction of the Australian Industrial Court to the Federal Court. Section 118A(1) provides:

"118A.(1) On and after the date of commencement of this Part -

(a) the jurisdiction and powers expressed by this Act to be vested in or exercisable by the Court or a Judge of the Court are, except in relation to matters in respect of which the hearing of proceedings in the Australian Industrial Court had commenced or been completed before that date, vested in and exercisable by the Federal Court of Australia or a Judge of that Court and, subject to this section, are exercisable in accordance with the Federal Court of Australia Act 1976; and

(b) a reference in this Act to the Court (other than in sections 104, 105, sub-sections (1) and (2) of section 111 and sections 114, 115, 116, 117, 118 and 184) shall, in relation to, and to matters arising out of, that jurisdiction or those powers as so vested or exercisable, be read as references to the Federal Court of Australia in its Industrial Division." (at p77)

Of the sections specifically mentioned in s. 118A(1)(b),s. 116 of the Act is particularly relevant. It provides: "Subject to section 197A and to the regulations, the Court may make such orders as it thinks just as to the costs and expenses (including the expenses of witnesses) of proceedings before the Court, including proceedings dismissed for want of jurisdiction." (at p77)
The other sections specifically excluded in that paragraph relate to such matters as the constitution of the Industrial Court when exercising jurisdiction under the Act the enforcement of judgments and orders, practice and procedure, powers on appeal etc. Broadly speaking, they are subject matters in respect of which there are special provisions in the Federal Court of Australia Act. As already indicated there is a special provision in that Act in relation to costs (s. 43) but the Federal Court's power to award costs under that section does not extend to proceedings "in respect of which any other Act provides that costs shall not be awarded". The question here is whether the Conciliation and Arbitration Act does so provide. (at p77)
Having regard to the provisions of the Act to which I have already referred the answer to this depends on the true construction of s. 118A(1) (a) and (b). (at p77)
Section 118A(1) (a) is a general provision which, apart from current or completed matters has the effect of vesting in and making exercisable by the Federal Court the jurisdiction and powers vested in and exercisable by the Australian Industrial Court. Subject to the provisions of that section, that jurisdiction and those powers are exercisable in accordance with the Federal Court of Australia Act. (at p77)
Paragraph (b) requires the words "the Court", in any provision other than those excepted, to be read as being a reference to the Federal Court but they are to be so read "in relation to, and to matters arising out of that jurisdiction or those powers as so vested or exercisable". Section 197A is not excepted and it does not refer specifically to s. 116. It provides, inter alia, that a party to a proceeding before the court in a matter arising under the Act shall not be ordered to pay any costs incurred by any other party to that proceeding except in certain events. (at p77)
Broadly speaking par. (a) vests in and makes exercisable by the Federal Court the same jurisdiction and the same powers in relation to future matters as would have been vested in or exercisable by the Industrial Court. This is the jurisdiction and these are the powers referred to as "so vested or exercisable" in par. (b). It is "in relation to" that jurisdiction and those powers or "in relation to matters arising out of" that jurisdiction and those powers that references to the court in sections of the Act, other than those excepted, are to be read as referring to the Federal Court in its Industrial Division. Section 197A, if so read, would have the effect that a party to a proceeding before the Federal Court in a matter such as this, arising under the Act, could not, except as provided, be ordered to pay the costs of another party. This Court clearly has jurisdiction, as a result of s. 118A(1) (a), to deal with a proceeding such as this for an offence against s. 5 allegedly committed after Pt VA commenced. Section 197A clearly makes provision in relation to, or to a matter arising out of, that jurisdiction when read as directed. It is "in relation to" that jurisdiction or "a matter arising out of" it because it relates to whether a party to the proceeding in which the jurisdiction is exercised, shall be ordered to pay costs. (at p78)
It was argued that par. (b) only applied where the Federal Court was exercising jurisdiction or powers previously vested in or exercisable by the Australian Industrial Court. In the light of the exclusion of s. 116 from s. 118A(1)(b) so the argument went, it could not have been intended, by par. (a), to vest in the Federal Court the jurisdiction or powers of the Industrial Court in relation to costs. Therefore, it was said, since s. 197A was a provision which related to the Industrial Court's power to award costs and since this power was not vested in the Federal Court it could not be a provision which related to the jurisdiction vested in or exercisable by the Federal Court. (at p78)
I think the fallacy in this argument is its attempt to treat s. 197A as tied, in some way, to s. 116. Before the Federal Court was established it was for practical purposes so tied but, in its terms, it is not so dependent and can apply, without any difficulty of interpretation, to any proceeding before the Federal Court in a matter arising under the Act. The jurisdiction and powers vested in or exercisable by the Federal Court by virtue of s. 118A(1)(a) are, subject to s. 118A, made exercisable by that paragraph in accordance with the Federal Court of Australia Act 1976. This would in my view apply s. 43 of that Act which confers jurisdiction to award costs. But it excepts, as already noted, proceedings in respect of which any other Act provides that costs shall not be awarded. By virtue of s. 118A(1)(b) of the Conciliation and Arbitration Act s. 197A of that Act is such a provision and therefore this Court's power to award costs is to that extent limited. (at p78)
In my opinion, therefore, s. 197A of the Act applies to these proceedings so as to prevent me, in the events which have occurred, from making any order for costs against the informant. So far as I am aware this has been the practice of the court in its Industrial Division since it was established: cf. Jones v. Thiess Bros. Pty. Ltd. (1977) 30 FLR 422

April 7.

REASONS FOR JUDGMENT (at p78)
Damien Stapleton (the informant), as federal secretary of the Australian Theatrical and Amusement Employees' Association (A.T.A.E.A.) instituted proceedings pursuant to s. 5 of the Conciliation and Arbitration Act 1904 (Cth) (the Act) against African Lion Safari Pty. Ltd. (the defendant) in relation to the dismissal of its former employee, Barry Bevan, and certain other former employees. (at p79)
He alleged that on or about 8th July, 1981, the defendant in breach of s. 5 dismissed Mr. Bevan and the other employees by reason of the circumstances that each was a member of an organization, that is A.T.A.E.A., that each was entitled to the benefit of an industrial award and that each was a member of an organization seeking better industrial conditions and was dissatisfied with those conditions. (at p79)
At the hearing the informant limited his case to the dismissal of Barry Bevan but added as another circumstance that referred to in s. 5(1)(f) of the Act, namely, that being a member and delegate of an organization, he did things which were lawful for the purposes of furthering and protecting the industrial interests of the organization and its members, being acts and things within the limit of the authority expressly conferred on him by the organization in accordance with the rules of the organization. (at p79)
These proceedings were heard immediately following those relating to the dismissal of Brian Tyrrell (No. N.S.W. 36 of 1981) and it was agreed at the hearing that I should treat as evidence in this case the whole of the evidence and exhibits in that matter. The findings of fact made by me in my judgment in that matter should be treated as forming part of this judgment. I shall not repeat them except where I feel it desirable to do so. (at p79)
The defendant also admitted at the hearing that A.T.A.E.A. was an organization registered pursuant to the Act, that the defendant was duly incorporated, that Barry Bevan was employed by the defendant and that he was dismissed from that employment. (at p79)
As indicated in my judgment in matter No. N.S.W. 36 of 1981, the onus is on the informant to prove beyond reasonable doubt all the elements constituting the offence, except the reason or reasons for the defendant's action. It is for the defendant to prove, on the balance of probabilities, that it did not dismiss Mr. Bevan for the reasons alleged. (at p79)
The defendant company operates the African Lion Safari at Warragamba. It is an amusement centre with primarily an animal park through which paying members of the public may drive their vehicles and view wild animals from the safety thereof. There is a lion reserve and a tiger reserve. The centre also has other attractions such as a zoo, dolphinarium, a section for farm animals, train rides etc. and a restaurant. It has been in operation for thirteen years. The defendant operates similar parks in other States. (at p79)
Barry Bevan was employed by the defendant for four years prior to his dismissal on 8th July, 1981. For the first three years he was employed as a casual and for the last year full time. His main employment was as park warden. He did general duties as well which included plumbing work, cleaning up, mechanical maintenance work in the pinball arcade and repairing railway lines and fences. Whilst he was a casual employee he apparently had a clash with Mr. Hayworth-Booth and continued on under an assumed name "Barry Scott." When he became permanent he again used his real name. (at p80)
On 16th December, 1980, he applied to become a member of A.T.A.E.A. The relevant documents were tendered in evidence and I am satisfied beyond reasonable doubt that he was a member of A.T.A.E.A. from 14th January, 1981 (when his application was accepted) until his dismissal. (at p80)
In my judgment in matter No. N.S.W. 36 of 1981 I referred to several meetings. Mr. Bevan attended the meeting at Warragamba Town Hall in late January 1981 and a meeting called by Mr. Stafford Bullen at the park restaurant some time later. Mr. Bevan did not give evidence in the earlier proceedings. He said in evidence in this matter, that, at the latter meeting, Mr. Stafford Bullen said to Mr. Tyrrell: "The union will do you no good and will do the rest of you no good. If you are not happy working here, you can find yourself another job. If you are not happy with the pay, find yourself another job. If you try to get a pay rise through the union or any other means I will close the park." (at p80)
He also attended the meeting called by the union towards the end of May. At that meeting Mr. Tyrrell volunteered to become the union delegate and Mr. Bevan indicated that he was prepared to take on the position as co-delegate. Two days after that meeting he told Eric Dzenis and Russell Bruce that he had been made a co-delegate. (at p80)
After Mr. Tyrrell was dismissed on 16th June Mr. Bevan says he was asked by one of the union officials, Mr. Heaney, if he would be willing to take on the position of delegate. He agreed to this and was asked to inform the management. He subsequently told Mr. Dzenis and Mr. Bruce of his appointment. (at p80)
After he agreed to be the co-delegate he says he asked two employees to become members of A.T.A.E.A. who said they would think about it. He also says that he nominated one employee for membership and seconded another. He did not collect any fees. (at p80)
A further meeting was organized by the union at the Warragamba Town Hall on 26th June. At that meeting the conditions of employment at the park were discussed for the purposes of an Arbitration Commission hearing. Miss Pikette and Mr. Stapleton were present and a document setting out a list of claims was produced. This was prepared by Miss Pikette. It included reference to such matters as rates of pay, hours of work, Saturday and Sunday shift work, meal intervals and allowances and accommodation. Under rates of pay it had classifications of various jobs and appropriate rates of pay. These claims, after being discussed at the meeting, became the basis of an application to the Commission. (at p80)
On 8th July Mr. Bevan and five other employees were called to Mr. Dzenis' office. He interviewed them one by one and each was dismissed from the defendant's employment. There is some conflict between Mr. Dzenis and Mr. Bevan as to what took place at this interview and I shall deal with this subsequently. (at p81)
As pointed out earlier, the onus is on the informant to prove beyond reasonable doubt all the elements constituting the offence, except the reasons which actuated the dismissal. (at p81)
I am satisfied beyond reasonable doubt that Mr. Bevan was employed by the defendant at all relevant times up to 8th July, 1981, that from 14th January, 1981, until after 8th July, 1981, Mr. Bevan was a member of A.T.A.E.A. and that it was an organization registered pursuant to the Act. I am also satisfied beyond reasonable doubt that on 8th July, 1981, the defendant dismissed Mr. Bevan as an employee. (at p81)
It follows from these findings that the onus is on the defendant to establish that on the balance of probabilities it did not dismiss Mr. Bevan by reason of the circumstance that he was a member of A.T.A.E.A. (at p81)
As indicated earlier, the prosecutor also relies on the circumstance referred to in par. (b) of s. 5(1), namely, that Mr. Bevan was entitled to the benefit of an industrial agreement or an award. (at p81)
In dealing with matter No. N.S.W. 36 of 1981, I expressed the view that I did not find it necessary to come to a concluded view as to whether the order signed by Mr. Commissioner Heffernan on 22nd June, 1981, was a valid variation pursuant to the Act. That was because Mr. Tyrrell, the employee concerned with those proceedings, was dismissed prior to that date on 16th June. In this case, Mr. Bevan was dismissed after the order was signed and it is therefore necessary to consider its status as an order under the Act. Was it an award or a variation of an award? (at p81)
The order of 22nd June, 1981, certainly took the form of a variation. The Commissioner purported to vary the Theatrical Employees' (Recreation Complex and Theme Park) Award 1979. One difficulty I have in regarding this as a valid variation is that I am unable to conclude from the evidence before me that any of the original parties to the dispute which was the basis of the 1979 award were represented before Mr. Commissioner Heffernan when he indicated that he would make an order on 18th May, 1981. If a variation is to be made to an award it seems to me the parties to it should be represented even if the only purpose is to add other parties. (at p81)

Another difficulty is that in this case the roping-in award was based not on the original industrial dispute that founded the 1979 award but on an industrial dispute found to exist between A.T.A.E.A. and the defendant and others by Robinson J. on 12th August, 1980, resulting from the service of a log of claims in June 1980. (at p81)
I must say that in these circumstances I have some doubt as to the power of the Commissioner to make a roping-in award varying an existing award when the roping-in award itself is based on a dispute not directly related to the dispute the basis of the earlier award and where the parties to the earlier award are not represented. (at p82)
It would seem to me that in such a case the appropriate course would be to make a fresh award pursuant to s. 41 on the basis of the new dispute. (at p82)
Because of the incomplete nature of the evidence on this matter I am not satisfied beyond reasonable doubt that there was an award to the benefit of which he could have been entitled. At the same time I think it important that I point out, first, that a fuller consideration of the circumstances might well establish beyond reasonable doubt that the purported variation was valid and effective to apply the 1979 award to the defendant and its employees and, secondly, that, had I been so satisfied in these proceedings, I would, nevertheless, have been satisfied, on the balance of probabilities, that Mr. Bevan was not dismissed by reason of the circumstance that he was entitled to the benefit of an award, that is to say, it was not a substantial and operative reason for Mr. Bevan's dismissal. My reasons for coming to this view are reflected in those I will subsequently state regarding the circumstances in pars. (a) and (d) of s. 5(1). (at p82)
Reliance is also placed in this case on par. (d) of s. 5(1), namely, that Mr. Bevan was dismissed by reason of the circumstance that he was a member of an organization which is seeking better industrial conditions and he was dissatisfied with his conditions. I am satisfied beyond reasonable doubt that he was a member of A.T.A.E.A. an organization registered pursuant to the Act, that it was at all material times seeking better industrial conditions and that he was dissatisfied with his conditions. I think it follows from his presence at the meeting on 26th June that considered the claims which subsequently became the basis of an application to the Commission, that Mr. Bevan was dissatisfied with his conditions in so far as they were reflected in that document. (at p82)
The informant also relied on par. (f) but for the reasons which I gave in dealing with matter No. N.S.W. 36 of 1981, I am not satisfied beyond reasonable doubt that the facts and circumstances relevant to the operation of par. (f) existed as at the relevant time. Mr. Bevan was not, in my view, appointed a delegate pursuant to the rules of A.T.A.E.A. and therefore par. (f) could not apply. (at p82)
In the light of these findings it is now necessary to consider whether the defendant has proved on the balance of probabilities that its action in dismissing Mr. Bevan was not actuated by reason of any of the circumstances that he was a member of A.T.A.E.A. or that, being a member of A.T.A.E.A., which was seeking better industrial conditions, he was dissatisfied with his conditions. (at p82)
I have already set out the facts relating to Mr. Bevan's employment and his appointment as a co-delegate and delegate of the union. It is true to say that his involvement in union matters up to his dismissal was not as great as Mr. Tyrrell's. His dismissal however took place not long after Mr. Tyrrell's and after proceedings had commenced in the Commission resulting from Mr. Tyrrell's dismissal. It also followed a period of union meetings on 28th May and 26th June where claims for better conditions including wages were discussed with employees of the defendant. Mr. Bevan had been present at the meeting called by Mr. Bullen and Mr. Bullen's dislike of unions was well known. (at p83)
The informant claims that in this atmosphere it should be presumed over any denial by the defendant's witnesses that Mr. Bevan's union membership and dissatisfaction with his conditions were a substantial and operative factor in his dismissal. (at p83)
The defendant however has in this case again attempted to refute this inference by giving positive evidence as to the reasons for the dismissal. There are some differences between the evidence of Mr. Dzenis and Mr. Bevan relating to what took place when Mr. Bevan was dismissed. Not a great deal turns on this. However, as in matter No. N.S.W. 36 of 1981, I regard Mr. Dzenis as an honest and reliable witness and I prefer to accept his version of the facts where a choice has to be made. (at p83)
Mr. Bevan says that when he was called into Mr. Dzenis' office on 8th July, Mr. Dzenis said to him: "I have got a bit of bad news to tell you. The directors have decided we have got to streamline staff. Here is your termination pay and a week in lieu." He also says that Mr. Dzenis said they were going through hard times, they had to streamline and that the dismissals were on the principle of last on first off. Five others were dismissed at the same time. (at p83)
Mr. Dzenis however denied having said it was on the basis of last on first off. As indicated earlier, I prefer Mr. Dzenis' version of the conversation. He is unlikely to have said it because he retained Mr. Brody who had only been there for several weeks. Mr. Bevan had been there for four years. He may have misunderstood what Mr. Dzenis said to him. Mr. Dzenis said he made it very brief and indicated to Mr. Bevan that he had been instructed by the directors to cut the numbers down and that he was dismissing him to which Mr. Bevan said "Oh well, fair enough". (at p83)
This difference is not, in my view, of great relevance. What is more important is whether I accept the evidence of Mr. Dzenis and Mr. Bullen as to the reasons actuating the dismissal. (at p83)
Mr. Dzenis says that, early in July 1981, he had a conversation with Mr. Bullen about modifying the tiger section of the park. Mr. Bullen asked him to delay it for a while. He was concerned about the staff currently employed and the state of the company and he felt that the staff numbers should be cut. At a later date Mr. Dzenis was told to operate in future on four game wardens and three for a portion of the park known as "Pet's Corner". This meant dismissing three game wardens and three members of the Pet's Corner staff. Mr. Dzenis says he was not given any criteria by Mr. Bullen as to how to select the ones to stay or terminate and that he based his decision on merit on their work performance. This was judged from his own observation and also from observations by Mr. Bruce, the park supervisor. He was not given any particular instructions about dismissing Mr. Bevan. He decided to dismiss him because, although he was basically a reasonably sound warden, he was lacking in quite a few respects. Mr. Dzenis said he made a habit of showing up late. He did not show a high regard for the animals he looked after and he was a bit on the slow side. A few weeks earlier he had had a major disagreement with Mr. Bruce, the park supervisor, when Mr. Bruce had made his pay up but decided on that occasion not to dismiss him but issue him with a stern warning. (at p84)
In relation to his lateness, Mr. Dzenis said he would arrange for him to be called on the telephone to inquire about his whereabouts when he was not at work at his set time and that he showed his dissatisfaction with Mr. Bevan being late on quite a few occasions. He had also received complaints from Mr. Bruce about him as to the manner in which he treated vehicles. (at p84)
Mr. Dzenis said he gave consideration to the fact that Mr. Bevan held himself out as the union delegate but because the directors had instructed him to operate on a small number he had to choose the ones that were the better workers and were the more diverse. Around the same time the hours of opening the park were changed and the staff were used for performing maintenance work after it was closed to the public. Mr. Dzenis was anxious to retain those staff who were more useful for that purpose. (at p84)
Of the five others who were dismissed at the same time, Mr. Dzenis believed four of them were union members. One of them, Mr. Southern was not. Several of those who were not dismissed he believed to be union members. (at p84)
Mr. Bruce also gave evidence confirming that of Mr. Dzenis. He said Mr. Bevan's interest in his work had deteriorated, that he was consistently late, that he had spoken to him about calling into hotels and having a drink on pick-ups and that finally he had taken him off driving outside and restricted him to the reserve. A month before he was actually dismissed he had refused to pick up meat when he had had his pay made up but said he would give him one more chance and restrict him to the park. (at p84)
I am satisfied from this evidence that Mr. Dzenis chose to dismiss Mr. Bevan because of his work performance compared with other employees. I am also satisfied that in making that choice he was not given any direction by Mr. Bullen as to whom he should choose. He did, however, give consideration to the fact that Mr. Bevan held himself out as the union delegate but that notwithstanding this he was justified in choosing him as one of those to be dismissed when comparing his work performance and capacities with those of other employees working in the game park and Pet's Corner. (at p85)
Mr. Bullen gave evidence that in early July he told Mr. Dzenis they would have to cut back on staff, that they looked at the numbers and decided to cut back about six people, that he indicated to Mr. Dzenis that he should keep the best people but Mr. Dzenis had not told him which people were to be terminated. He agreed that prior to the dismissals the names of those employees to be terminated could have been mentioned including Barry Bevan and he recalled something being mentioned to the effect that his work had deteriorated. Mr. Dzenis also mentioned to him Mr. Bevan's membership of the union. He gave no specific instruction as to the dismissal of any particular employee. It was about the same time he gave instructions that no further persons were to be employed. An attempt was made to replace Mr. Pruys, the maintenance employee, and applications were called in the local press but this was against Mr. Bullen's instructions and he was not in fact replaced. Mr. Bullen said that when he was speaking about cuts being made, he did not take into account that there might be further union trouble if the union delegate were sacked again. He denied that Mr. Bevan was dismissed to drive home the anti-union campaign that was being conducted. (at p85)
The reason which actuated Mr. Bullen's decision to cut back on staff was the decline in the profits from the park. As to this Mr. Bullen gave evidence in matter No. N.S.W. 36 of 1981 and I am satisfied that prior to giving Mr. Dzenis the instructions to dismiss six staff, he came to the view based on his knowledge of the finances that this was a proper decision to make in the interests of keeping the park open if it were to remain profitable. Problems were arising with the profitability of the park and similar parks in other States. (at p85)
In the light of the evidence from Mr. Dzenis and Mr. Bullen, which I accept as truthful and reliable, I am satisfied, on the balance of probabilities, that the reasons for Mr. Bevan's dismissal were the reasons given by Mr. Dzenis and that they did not include the circumstance that he was a member of A.T.A.E.A. or that he was trying to better his conditions. (at p85)
The information should therefore be dismissed.

June 29.

FURTHER REASONS FOR JUDGMENT (at p85)
On 7th April last I gave judgment in this matter and ordered that an information by Damien Stapleton (the informant) claiming that African Lion Safari Pty. Ltd. (the defendant) had committed a breach of s. 5 of the Conciliation and Arbitration Act 1904 (Cth) (the Act) be dismissed. (at p85)
In making that order I made no order as to the costs of the proceedings. The defendant has since applied for an order that the informant pay the defendant's costs of the proceedings. The informant claims that I have no power to make such an order first because I have already given judgment dismissing the information and, in effect, am now functus officio and, secondly because of the provisions of s. 197A of the Act. (at p86)
For the reasons which I have given today in matter No. N.S.W. 36 of 1981, I am of the opinion that, because of the provisions of s. 197A of the Act, I have no power to make the order sought it not being alleged that the proceedings were instituted vexatiously or without reasonable cause. (at p86)

[1982] FCA 162

29 JUNE 1982