Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing, and Allied Services Union of Australia v Australian Postal Corporation
[1998] FCA 657
•12 JUNE 1998
FEDERAL COURT OF AUSTRALIA
INDUSTRIAL LAW - Alleged breach of industrial award - Provision allowing access to employer’s notice boards for display of notices in relation to union’s affairs - Employer entitled to remove any “offensive notice” - Circular critical of rival unregistered union and people supporting it removed by employer - Whether award provision rendered unenforceable by s 127AA of Workplace Relations Act - Whether circular was an “offensive notice” - Entitlement of employer to remove - Penalty.
Workplace Relations Act 1996, ss 127AA, 178 and 356
| COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING AND ALLIED SERVICES UNION OF AUSTRALIA |
NG245 OF 1998
JUDGE: WILCOX J
PLACE: SYDNEY
DATE: 12 JUNE 1998
| IN THE FEDERAL COURT OF AUSTRALIA | |
| NEW SOUTH WALES DISTRICT REGISTRY | NG245 of 1998 |
BETWEEN: | COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING AND ALLIED SERVICES UNION OF AUSTRALIA |
AND: | AUSTRALIAN POSTAL CORPORATION |
JUDGE | WILCOX J |
DATE OF ORDER: | 12 JUNE 1998 |
WHERE MADE: | SYDNEY |
THE COURT ORDERS THAT:
Within 28 days the respondent, Australian Postal Corporation, pay to the Registrar a penalty pursuant to s 178 of the Workplace Relations Act 1996 in the sum of one thousand dollars ($1,000).
The Registrar pay one half of the said penalty to the Consolidated Revenue Fund and pay the remainder to the applicant, Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
| IN THE FEDERAL COURT OF AUSTRALIA | |
| NEW SOUTH WALES DISTRICT REGISTRY | NG245 of 1998 |
BETWEEN: | COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING AND ALLIED SERVICES UNION OF AUSTRALIA |
AND: | AUSTRALIAN POSTAL CORPORATION |
JUDGE: | WILCOX J |
DATE: | 12 JUNE 1998 |
PLACE: | SYDNEY |
REASONS FOR JUDGMENT
WILCOX J: This is an application under s 178(1) of the Workplace Relations Act 1996 in which a registered organisation, Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (“CEPU”) seeks the imposition of a penalty on an employer, Australian Postal Corporation (“Australia Post”) for breach of an award. The relevant award is the Australia Post General Conditions of Employment (Interim) Award 1995 which, it is common ground, binds Australia Post. Clause 70 of that award provides:
“70 - NOTICE BOARDS
The claimant organisations shall be granted reasonable access to Australia Post notice boards for the display of notices of or relating to their affairs authorised by an appropriate National or Branch official. Australia Post may forbid any offensive notice or cause it to be removed.”
CEPU was one of the claimant organisations for the award and is therefore an organisation granted access under this clause.
The facts
There is no substantial dispute about the facts, although at the hearing there was some debate about relevance.
Australia Post operates delivery centres from which mail deliveries are made by Australia Post employees and contractors. CEPU members are employed at some, at least, of the centres. Australia Post maintains a notice board at each delivery centre on which it displays, and allows others to display, notices that are likely to be of interest to employees. According to the evidence of Mark Leonard Warren, Australia Post’s Manager of Delivery, New South Wales and the Australian Capital Territory, there are some 220 notice boards in New South Wales and the Australian Capital Territory to which some 4,800 employees have access.
On about 16 January 1998 Brian Keith Baulk, a Divisional Assistant Secretary of the Communications Division of CEPU, and James Metcher, Branch Secretary of the New South Wales Postal and Telecommunications Branch of CEPU, authorised the publication of a two-page document which bore the identification “Circular No. 98/8”. The document prominently displayed CEPU’s logo, name and address. It was inscribed: “Important: Please place on union notice board”. It was signed at the foot “Jim Metcher Branch Secretary”.
The document featured a banner headline “Who’s Behind the PDOU?” It read:
“Recently a group of people, calling themselves the Postal Delivery Officers Union (PDOU) have attempted to get Postal Delivery Officers to resign from the CEPU. There are some important issues that PDOs should be aware of when they are approached by the PDOU.
. The PDOU is not a Registered Union - and it never will be!
Before an organisation can become recognised it must be registered with the Australian Industrial Relations Commission.
The PDOU is not eligible to become registered as a union of employees (and it is very unlikely that it will ever become eligible) - and therefore it cannot represent you with problems at work or with industrial matters such as wages and conditions.
If a member resigns from the CEPU to join the PDOU that member will be without representation at work when they need it most.
. Accountability to Members
The main purpose of registration is to protect the members of trade unions from dishonest behaviour. For instance the CEPU has its financial records inspected once a year by a government agency and all elections for office in the CEPU are conducted by the Australian Electoral Commission - the same organisation that conducts Federal elections.
Who will safeguard money given to the PDOU? Who will conduct elections in the PDOU? Will there be any elections at all in the PDOU?
. The Men Behind the PDOU
The two men behind the PDOU are Quentin Cook and Michael Holden. These two people have stood as candidates in elections in the CEPU for the past ten years and each time they have been overwhelmingly rejected by members. Quentin Cook led the Liberal Members Team in recent union elections.
Quentin Cook and Michael Holden have only set up the PDOU because they are unable to gain the support of CEPU members. These people want to put their personal political ambitions ahead of the interests of you and your family’s livelihood - and they must be rejected!
. The Man Behind the Men Behind the PDOU
The Prime Minister, John Howard, has said in Federal Parliament, that he wants to join the PDOU. Some endorsement for a ‘trade union’. Howard has done nothing but attack and undermine the rights of workers. John Howard obviously wants the PDOU to share the same goals and objectives as his government.
The Federal Minister for Industrial Relations, Peter Reith, forced Australia Post management to change their policies to encourage groups like the PDOU.
Recently the Federal Government were caught being involved - after denying involvement - in a hair brain scheme to get soldiers to replace trade union members on the waterfront. The PDOU is just another hair brain scheme from the Liberal Party.
. United We Bargain - Divided we Beg
There are many challenges facing us in the year ahead: management proposals for alternate pay methods for PDOs; the stripping back of Awards; EBA4 negotiations; the threat of postal deregulation. It is important that in the face of all of this that we remain united.
The men behind the PDOU are attempting to divide us and in doing so weaken our bargaining strength in these testing times. Collectively we must fight off these attempts to undermine PDO’s. There is only one union for PDO’s and that is a strong and united CEPU.
. The CEPU is the Union For Postal Delivery Officers
If you have any problems at work please don’t hesitate to contact Organisers Dave McCartney, Michael Etue, Greg Rayner, Ron Heller, Doug Irwin, Bill Richards, H.H. Le; Assistant Secretary Bob Cornish or Industrial Officers John Delchery, Peter Jones or T.K. Ly on (02) 9893 7822.” (Original emphasis)
Copies of the circular were forwarded to all CEPU delegates in New South Wales delivery centres. It was posted on some, if not all, the notice boards in those centres. However, a few days later it was removed from all notice boards on the instructions of Mr Warren.
Mr Warren gave evidence he first became aware of the circular on 22 January 1998 when he was shown a copy by an Australia Post employee involved with delivery administration. Mr Warren formed the opinion that the document was not appropriate for display. He consulted Christine Bottcher, of Australia Post’s Human Resources Group. She referred Mr Warren to cl 70 of the award. After reading that clause and discussing its application with Ms Bottcher, Mr Warren decided the circular should be removed for two reasons stated in his affidavit in these terms:
“(a) The Circular named Mr Cook and Mr Holden and Mr Howard and contained remarks about each of them which I considered to be offensive and which I believed would be so considered by others. The remarks which I considered to be offensive are :
(i) in respect of Mr Cook and Mr Holden:
‘Quentin Cook and Michael Holden have only set up the PDOU because they are unable to gain the support of CEPU members. These people want to put their personal political ambitions ahead of the interests of you and your family’s livelihood - and they must be rejected’; and
(ii) in respect of Mr Howard:
‘The Prime Minister, John Howard, has said in Federal Parliament, that he wants to join the PDOU. Some endorsement for a “trade union” Howard has done nothing but attack and undermine the rights of workers. John Howard obviously wants the PDOU to share the same goals and objectives as his government.’
(b)it contravened Australia Post’s existing policy ... that material that is ‘political’ in nature should not be displayed on notice boards.”
After consulting other Australia Post officers, Mr Warren wrote a letter to Mr Metcher that read as follows:
“I have today read the contents of the circular we received from your Office headed ‘Who’s Behind The PDOU?’
Following consideration and advice from Head Quarters, the contents of that circular have been determined as inappropriate for display in the workplaces of Australia Post.
Consequently, I have instructed all workplaces that under no circumstances is the circular to be displayed on any notice boards. Further, that any person who is found placing the circular on notice boards will be subject to the Code of Employee Standards.
If an attempt to display this type of circular on Australia Post’s Union notice boards occurs again, I will have no alternative but to review the provision of such notice boards in the workplace.”
On the same day, still 22 January, Mr Warren gave instructions that all delivery centre managers ensure the circular was removed from their notice boards. Mr Warren’s understanding is that this instruction was implemented.
After he received Mr Warren’s letter, Mr Metcher telephoned Mr Warren to discuss the issue. It is not necessary to detail the conversation; Mr Metcher asserted that Mr Warren had no right to “pull” the notice; Mr Warren said he did have such a right.
The only other factual matter to which reference need be made arises out of evidence given by David John McCartney, a Branch Organiser employed by CEPU, whose relevance was challenged. Mr McCartney deposed that, on 4 May 1998, he visited Australia Post’s Norwest Delivery Centre at Baulkham Hills and saw, on the notice board, a copy of a document entitled “The Devil’s Advocate”. The document was still attached to the notice board when Mr McCartney revisited the centre two weeks later, on 18 May 1998. Mr McCartney annexed a copy of the document to his affidavit. The document purports to be Volume 1, Issue 1 of “The Newsletter of the Postal Delivery Officers Union”. It is dated March 1998 and contains critical comments about both CEPU and Australia Post management. Those concerning Australia Post are particularly virulent. An article concerning disciplinary proceedings against a postman named Geoff Moran, under the by-line of Quentin Cook, refers to Australia Post as “a disreputable, dishonest and unscrupulous employer” and contains the sentence:
“The facts are that the NSW Management is a petty and malicious grouping of status driven cowards that will use every trick in the book to ‘get postmen’ and build their weakling reputations as ‘tough operators’.”
The issues
Mr Robert Goot, counsel for Australia Post, helpfully prepared a list of the issues which he thought required determination by the Court. Mr Robert Reitano, for CEPU, accepted the accuracy and sufficiency of this list. It reads:
“1.Is clause 70 of the Award unenforceable having regard to section 127AA of the Act?
2. Was the notice offensive?
3.Does clause 70 of the Award permit Australia Post to forbid or remove a notice for reasons other than that the notice is offensive?
4.Has Australia Post breached the Award as alleged?
5.If so, what, if any, penalty should be imposed pursuant to section 178 of the Act and should any part of such penalty be paid to the applicant organisation pursuant to section 356 of the Act?”
Section 127AA
Section 127AA of the Workplace Relations Act is in these terms:
“127AA(1)A provision of an award or order that requires or authorises an officer or employee of an organisation:
(a) to enter premises:
(i)occupied by an employer who is bound by the award or order; or
(ii)in which work to which the award or order applies is being carried on; or
(b)to inspect or view any work, material, machinery, appliance, article, document or other thing on such premises; or
(c)to interview an employee on such premises;
is unenforceable.
(2)This section does not apply to an order made under section 285G.”
Section 285G is not relevant to this case.
Mr Goot does not suggest the CEPU delegates who posted copies of Mr Metcher’s circular on Australia Post delivery centre notice boards did so following exercise by them of the power to enter Australia Post premises given to CEPU by cl 70. He accepts the delegates were Australia Post employees who were entitled (indeed required) to enter the premises in the course of their employment. Mr Goot also accepts that s 127AA makes no reference to a right to display notices on an employer’s notice board. However, he argues that, in granting the CEPU access to Australia Post notice boards, cl 70 implicitly grants the union authority to enter Australia Post’s premises; therefore, the clause is a provision that answers the description contained in para (a)(i) of s 127AA(1) and, accordingly, it is rendered wholly unenforceable by the subsection.
I do not accept this argument. I think, as Mr Reitano submits, that s 127AA was directed to “right of entry” award provisions. I agree that, to the extent that cl 70 impliedly authorises CEPU officers to enter Australia Post’s premises for the purpose of displaying union notices on notice boards, it is rendered unenforceable by s 127AA(1). However, to the extent that cl 70 confers any other right, it is not affected by s 127AA(1). If the notice can be displayed without resort to an award-given right of entry, the entitlement of display remains.
The question posed in issue number 1 should be answered by saying that s 127AA does not preclude the enforcement of the right of CEPU delegates to display notices relating to CEPU affairs on Australia Post notice boards in situations where the exercise of that right does not depend upon the exercise of an award right to enter the premises.
Was the notice offensive?
Mr Goot contends the CEPU circular was an “offensive notice”, within the meaning of cl 70 of the award; therefore Australia Post was entitled to cause it to be removed. The word “offensive” is not defined in the award and Mr Goot argues it has its ordinary English meaning. He cites two dictionary definitions. The Macquarie Dictionary (2nd ed) contains these relevant definitions of the adjective:
“1. causing offence or displeasure; irritating; highly annoying.
...
3. repugnant to the moral sense, good taste, or the like; insulting”.
The Shorter Oxford English Dictionary (3rd ed) offers these relevant meanings:
“2. Hurtful, injurious.
3.Giving, or of a nature to give, offence; displeasing; annoying; insulting.”
Mr Goot also cites the decision of Gobbo J of the Victorian Supreme Court in Patrick v Cobain [1993] 1 VR 290. That was an appeal from a decision of the Victorian Administrative Appeals Tribunal dismissing Mr Patrick’s application to review the refusal of Mr Cobain, a returning officer in a local government election, to register as a how-to-vote card a document submitted by Mr Patrick (who was not a candidate in the election) referring in critical terms to a candidate who was seeking re-election. The document read:
“In Ken Oliver’s two years on council, the council has -
· taken no action against illegal real estate signs on properties;
· sold council land to a lucky few at one-third its true value;
· allowed developers to avoid providing parking by making a cash payment of half the actual value of the car space;
· failed to prevent an increase in the density of residential property;
· permitted signwriting on estate agent offices in excess of that permitted by the Brighton Planning Scheme.
For more of the same return to office your local estate agent Ken Oliver ...”
The relevant legislation required the returning officer to refuse to register a form of how-to-vote card if he or she was satisfied, amongst other things, that it “contains offensive or obscene material”.
An appeal lay to the Supreme Court against a Tribunal decision only in respect of a question of law. Gobbo J held the Tribunal had not erred in law. His Honour held it was not necessary for Mr Cobain to adduce evidence that Mr Oliver was in fact offended by the document. He said at 293 “the inquiry to be made ... was essentially one that looked at the material and considered whether it was capable of giving offence”. Dealing with an argument by Mr Patrick that the Tribunal had misdirected itself in treating “offensive” as amounting to hurtful, Gobbo J said the Tribunal did not so confine itself; the dictionary meanings it had before it comprehended the notion “that offensive material is material capable of giving offence or which is aggressive or shocking”. Gobbo J also held a statement might be offensive even though true. After summarising the substance of the allegations made in the document, Gobbo J held at 295 that “the material was capable of amounting to offensive material”. He went on:
“It is not for me to decide that matter. I have a more limited inquiry, because the issue for me is an issue of law as to whether the tribunal’s decision was one that no reasonable tribunal could have come to on the material before it and, for the reasons I have indicated, that cannot be found.”
In dealing with an argument based on public interest and public policy, Gobbo J pointed out he was concerned with a how-to-vote card, “not with electoral material at large”. He said there was no limitation on Mr Patrick and others canvassing the matters he had raised “in a whole variety of ways for many days before the election, and right up to within a certain geographic distance of the polling booth on the day in question”. The limitation related only to a how-to-vote card. He commented:
“I am indeed surprised that on the regulations as they stand one can have how-to-vote cards that contain testimonials for particular candidates and criticisms, (that is falling short of being offensive) of other candidates. It would seem odd that that fits within the character of what is intended to be simply information about how-to-vote.”
Mr Goot identifies three aspects of the CEPU circular that, in his submission, cause it to be an “offensive notice”. First, he says the questions asked under the heading “Accountability To Members” imply Mr Cook and Mr Holden, the “two men behind the PDOU”, are likely to act dishonestly, cannot be trusted with union funds and cannot be trusted to conduct (or even to hold) union elections; this is offensive to them as it imputes dishonest behaviour. Second, Mr Goot points to the last sentence in the section of the document headed “The Men Behind the PDOU” in which it is said that Mr Cook and Mr Holden “want to put their personal political ambitions ahead of the interests of you and your family’s livelihood”; they are selfishly pursing their own interests at the expense of others. This statement is offensive to them. Third, Mr Goot says it is offensive to the Prime Minister to say, in the next section of the document, that he “has done nothing but attack and undermine the rights of workers”.
Mr Reitano argues the document cannot be described as an “offensive notice”. He points out cl 70 is concerned with the display of notices “relating to (the) affairs” of claimant organisations; in this case, the affairs of CEPU. In the nature of things, Mr Reitano says, notices about the affairs of a registered industrial organisation are likely to contain criticisms, which may be hurtful to those who are criticised. He asks rhetorically how it would be possible for a union to communicate frankly with its members about conflicts it may have with the employer if it could not say anything hurtful or unkind. In relation to the meaning of the word “offensive”, Mr Reitano refers to four criminal cases: Worcester v Smith [1951] VLR 318; Ball v McIntyre (1966) 9 FLR 237, Regina v Smith [1974] 2 NSWLR 587 and Khan v Bazeley (1986) 40 SASR 481.
In Worcester v Smith the defendant was charged under Victorian legislation with having behaved in an offensive manner in a public place. The evidence showed he had participated in a small demonstration outside the United States consulate in Melbourne in which anti-American banners were displayed. The defendant carried a banner reading: “Stop Yank Intervention in Korea”. He responded to a bystander who suggested he was a Communist causing trouble by saying: “The bloody Yanks are causing the trouble”. At 317 O’Bryan J said:
“In my opinion, the whole of this evidence did not support the charge of offensive behaviour. This section is not directed to the peaceful and inoffensive statement either verbally or in writing of political views. There is nothing, in my opinion, in the wording of any of the banners which could reasonably be taken to be offensive. They are strong expressions of opposition to a political policy with which the great majority in this community would probable agree. The mere disagreement with that policy, while it may be in one sense offensive to some people, is not, in my opinion, offensive in the sense in which this word is used in sec. 25. I agree with Mr. Anderson’s argument that words may be uttered in such a way and in such circumstances as to be offensive, and that circumstances, including the manner and place in which words are uttered, may turn words into offensive behaviour. It is to be remembered that this man is not charged with obstructing the footpath or with any other of a number of kindred offences which are created under city by-laws or police offences legislation. He is charged with having behaved in an offensive manner in a public place.
The behaviour of the defendant in this case, in my opinion, fell far short of being offensive as that word is used in sec. 25. Behaviour, to be ‘offensive’ within the meaning of that section, must, in my opinion, be such as is calculated to wound the feelings, arouse anger or resentment or disgust or outrage in the mind of a reasonable person. The mere expression of political views, even when made in the proximity of the offices of those whose opinions or views are being attacked, does not, in my opinion, amount to offensive behaviour within the meaning of this police offence.
Ball v McIntyre was also concerned with a political demonstration; this time in Canberra and in connection with the Vietnam war. The appellant climbed on a statue of King George V and hung on it a placard reading: “I will not fight in Vietnam”. He then squatted on the statute for about 20 minutes, refusing police requests to come down. Kerr J held his conduct did not amount to “behaving in an offensive manner in a public place”. In reaching that conclusion, he held there was no special significance in the fact that the memorial was to a dead king, “the reasonable man would look at it in much the same way as he would look at any other statue, memorial or sculpture in a public place”. Kerr J referred to a Victorian case, Anderson v Kynaston [1924] VLR 214 in which the Full Supreme Court held the equivalent Victorian statute was concerned with the preservation of order and decorum in streets and other public places. The Full Court said “offensive” referred to something “much more direct than conduct which may ultimately turn out to be in a broad sense ‘hurtful’ to a person’s future disposition or character”. Kerr J went on at 241:
“It follows from what was said in this case, and I agree with and adopt it, that some conduct which is hurtful or blameworthy or improper is not offensive within the meaning of the section. What has to be considered in the particular case is whether the conduct in question, even if in some sense hurtful or blameworthy, or improper, is also offensive within the meaning of the section. It is important, I think, for this point to be made because it is sometimes thought that it is sufficient to constitute offensive behaviour if it can be said that conduct is hurtful, blameworthy or improper, and thus may offend.
Conduct which offends against the standards of good taste or good manners, which is a breach of the rules of courtesy or runs contrary to commonly accepted social rules, may well be ill-advised, hurtful, not proper conduct.
People may be offended by such conduct, but it may well not be offensive conduct within the meaning of the section. Some types of political conduct may offend against accepted views or opinions and may be hurtful to those who hold those accepted views or opinions. But such political conduct, even though not thought to be proper conduct by accepted standards, may not be offensive conduct within the section. Conduct showing a refusal to accept commonly held attitudes of respect to institutions or objects held in high esteem by most may not produce offensive behaviour, although in some cases, of course, it may.
This charge is not available to ensure punishment of those who differ from the majority. What has to be done in each case is to see whether the conduct is in truth offensive.”
After referring to Worcester v Smith, Kerr J held (at 243) that “offensive behaviour is behaviour calculated to produce (significant) emotional reactions in the reasonable man”.
In both Regina v Smith and Khan v Bazeley convictions for offensive behaviour were upheld. It is not necessary to go to the detail of the cases; they accepted the principles already mentioned but held that, consistently with those principles, it was open to the magistrate to convict.
Mr Goot contends that decisions on the application of criminal legislation relating to offensive behaviour are of no assistance in determining the meaning of the term “offensive notice” in cl 70 of the award. He points out that, in Patrick v Cobain at 294, Gobbo J said:
“I am further of the view that the test to be applied is not one that is to be uplifted from the criminal statute with its higher burden of proof and with, in particular, its connotation of gravity and seriousness”.
I agree with Mr Goot’s contention to a point; I do not think the criminal cases directly provide the answer to the question now under consideration. There may be a significant difference between the degree of objectionableness that warrants the application of criminal sanctions to particular behaviour and that which warrants removal of a notice from a notice board. Nonetheless, I think the criminal cases provide some insight into the general concept of offensiveness. In particular, they emphasise two points that were accepted also by Gobbo J in the civil case of Patrick v Cobain: first, whatever its dictionary meaning, in this type of context the word “offensive” means more than merely hurtful; second, not all criticisms can properly be described as being offensive.
It is not easy to draw the line between criticism and offensiveness. A statement that makes serious allegations of impropriety, as in Patrick v Cobain, would probably be regarded as offensive by most people. A statement offered by way of comment, in the cut and thrust of debate about an issue, probably would not. Most people realise debate sometimes descends to a personal level and personal comments are often mere hyperbole.
I turn to the three items in this document which, in Mr Goot’s contention, render it offensive. First, the questions at the end of the section headed “Accountability To Members”. I cannot agree with Mr Goot’s submission that these questions suggest Mr Cook and Mr Holden are dishonest. This paragraph is concerned to compare the protection available to members of a registered union and that available to members of an unregistered organisation. The questions merely dramatise the point that, in the case of the PDOU, no protections are in place and, if PDOU is unlikely ever to be registered (as the previous paragraph asserts), are unlikely ever to be in place. The argument that community organisations need stringent financial controls and democratic election rules and practices does not depend on the premise that those who manage such organisations are dishonest or tyrannical; but simply upon the truism that accountability is essential to the maintenance of members’ confidence in an organisation and its long-term viability. It is not generally thought defamatory of a company’s directors for the shareholders to appoint auditors.
The sentence concerning the political ambitions of Mr Cook and Mr Holden must be read with the later section of the circular headed “United We Bargain - Divided We Beg”. That section refers to forthcoming challenges and emphasises the need to remain united. It goes on to suggest the “men behind the PDOU” are attempting to divide CEPU members “and so weaken our bargaining strength in these testing times”. Obviously, this is why it is earlier claimed Mr Cook and Mr Holden are putting their personal political ambitions ahead of members’ interests. No doubt Mr Cook and Mr Holden would see the situation differently. But it seems to me the remark about the price of their political ambitions is a comment fairly based on disclosed reasoning. It was for readers to decide whether or not they accepted that reasoning; perhaps some did and some did not. But even those readers who did not agree would have realised the sentence was mere comment. I do not think it is defamatory of Mr Cook and Mr Holden. I do not agree with Mr Goot’s submission that the comment imputes dishonesty to Mr Cook and Mr Holden.
Finally, there is the comment that Mr Howard “has done nothing but attack and undermine the rights of workers”. Many people in the community would agree with that observation; many would not. The statement is contentious, but it is difficult to regard it as offensive. Critical comments are the regular fare of politicians; probably most prominent politicians suffer worse criticisms almost every day, in press articles, letters to the editor and talk back radio.
In applying cl 70 it is necessary to remember two points. First, its second sentence refers to “any offensive notice”. The question is whether the notice, read as a whole, is offensive. Second, the clause is concerned with notices relating to the affairs of registered organisations, about which there has traditionally been robust debate. Registered organisations frequently need to engage in contentious action, on behalf of members, against an employer. Those who drafted cl 70 would have known these things. I think it unlikely they intended to confine its application to notices that achieve a standard of high delicacy. I think they intended to allow the employer to remove only notices that are intolerable, because they are likely to cause an emotional reaction in the workplace, of disgust, anger or the like.
When this document is read as a whole, it is apparent it is a call to CEPU members to resist enlistment into PDOU. The document gives reasons why members should do so, in the course of which it refers to weaknesses in PDOU’s structure and criticises people who are said to support PDOU. The criticisms are relevant to the purpose of the document. They are severe, but not defamatory. They are criticisms which readers can accept or reject as they please; but they are not likely to excite emotional reactions such as disgust or anger. In my opinion the circular is not an “offensive notice”.
Other reasons
Mr Warren gave evidence that, in January 1998, Australia Post had a policy that “did not allow material that is political in nature, and directed at promoting a union in a way which denigrates others, to be placed on notice boards”. That may be so, but it has nothing to do with the operation of cl 70. If a particular notice falls within the first sentence of that clause - that is, it is a notice “of or relating to” the union’s affairs - the union is entitled to display that notice unless it is an “offensive notice”. A notice does not become offensive simply because it is political in nature or even, necessarily, because it denigrates others. To the extent the policy purports to give Australia Post managers a control over union notices that exceeds the control given them under cl 70, it is inconsistent with the award. While cl 70 stands, any attempt to rely on that policy will necessarily involve a contravention of the award. It follows, of course, that the second reason given by Mr Warren for his decision to remove the circular from the notice boards was misconceived.
Mr Goot argues Australia Post would be entitled to remove a notice that was defamatory, even though it was not offensive. I appreciate there is a conceptual difference between a document being defamatory and a document being offensive. It is not difficult to think of cases of offensiveness that have nothing to do with defamation; for example the use of obscene or disgusting language or images or the promotion of discriminatory ideas or encouragement of personal harassment. It is more difficult to envisage the converse case, a document containing defamatory statements that is not offensive. To the extent such a case may occur, the exclusion contained in the second sentence of cl 70 may be inadequate. But that conclusion does not justify Australia Post breaching the clause. It only means an amendment might be desirable.
Breach?
It is apparent from what I have said that Australia Post breached cl 70 of the award when Mr Warren caused the CEPU notice to be taken off the notice boards. As the document was not an “offensive notice”, he had no right to do this.
Penalty
The maximum penalty available in this case is $10,000: see s 179(4)(a)(ii) of the Act. It is not appropriate to impose a penalty approaching that figure. This is the first occasion on which Australia Post has breached cl 70 or, so far as appears, any provision in the award. Moreover, as award breaches go, this is a relatively minor matter. Further, I accept Mr Warren believed he was justified in issuing his instruction to remove the notice because he thought it was an offensive notice. These are factors in mitigation of penalty.
On the other hand, Mr Warren handled the matter badly. It would have been reasonable, and no more than common courtesy, for him to have discussed the circular with Mr Metcher before ordering its removal. If Mr Warren had explained his concerns, Mr Metcher might have been prepared to modify the notice in order to accommodate them. But Mr Warren chose the path of confrontation. If he had preferred consultation , this proceeding might have been avoided.
Having regard to the whole of the circumstances, I think it is appropriate to impose a penalty of one thousand dollars ($1,000). Pursuant to s 356 of the Workplace Relations Act, I order that one half of that penalty be paid into the Consolidated Revenue Fund and the remainder be paid to CEPU, which incurred expenses in connection with the printing and distribution of the notice.
| I certify that this and the preceding fifteen (15) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Wilcox |
Associate:
Dated: 12 June 1998
_
| Counsel for the Applicant: | R Reitano |
| Solicitor for the Applicant: | R L Whyburn & Associates |
| Counsel for the Respondent: | R M Goot |
| Solicitor for the Respondent: | Minter Ellison |
| Date of Hearing: | 1 June 1998 |
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