Curran, W.J. v Thomas Borthwick & Sons (Pacific) Ltd

[1990] FCA 210

LIMITED DISTRIBUTION

CATCHWORDS

Industrial law - rlght of entry and inspection - refusal of entry - termination of inspection - offences - appropriate

penalties.

~ndustrial Relations Act 1988 s.306, s.286(1)

WALTER JAMES CURRAN v. THOMAS BORTHWICK & SONS (PACIFIC)

LIMITED

No. V1 26 of 1989 No. V1 29 of 1989

GRAY J.

MELBOURNE

30TH APRIL 1990

IN THE FEDERAL COURT OF AUSTRALIA

)

I

VICTORIA DISTRICT REGISTRY

)	NO. V1 26 of 1989
)	No. V1 29 of 1989

INDUSTRIAL DIVISION

)

BETWEEN: 

WALTER JAMES CURRAN

Prosecutor

-and-

THOMAS BORTHWICK & SONS (PACIFIC)

LIMITED

Defendant

-	JUDGE: Gray J.
PLACE: Melbourne DATE: 30th April 1990

EX TEMPORE REASONS FOR JUDGMENT

In matter no. V1 26 of 1989, the defendant has
pleaded gullty to an offence agalnst 5.306 of the Industrial

Relations Act 1988. That offence occurred on 22nd June 1989.

behalf of the defendant company to permit the entry to the	In substance, it arose from a refusal by Mr. John Hughes on
defendant company's premlses at Portland of Mr. John Brunt and Mr. Les Macdonald, who were authorized officers of the Australaslan Meat Industry Employees Unlon, seeklng to exercise powers of entry and lnspectlon under s.286(1) of the Act. -
There is evidence from Mr. Hughes as to the circumstances in which the offence was committed, whlch is not the subject of any contest. In substance, it appears that the offence arose because Mr. Hughes acted on the assumption that entry was being sought under clause 24 of the Thomas Borthwick and Sons (Pacific) Limlted, (Portland) Interim Award 1989, and that the company was entitled to refuse entry under subclause (e) on the basls of alleged prlor offensive behaviour and likely offensive behaviour of the two officials. It is plain that that was a mlstaken view. The company subsequently took legal advice and ascertained that it was a mistaken view. It also had the benefit of a recommendatlon of Mr. Deputy President Rlordan, given on 29th June 1989, that it should make arrangements for the inspections of wages and seniority records by officials of the Union.
In matter no. V1 29 of 1989, the defendant pleaded not guilty to a slmilar offence and was subsequently found
guilty. That offence occurred on 27th July 1989. It involved a requirement that two other offlclals of the Union,
Iar. Davey and Mr. Dlllon, break off an inspection of certain
records, which was then taking place, and leave the premises. The circumstances of the commission of that offence are set out fully in the reasons for judgment which were given on 14th march 1990 in that matter.
In comlng to consider the question of penalty in relation to each of these matters, the first and most obvious relevant factor is that under s.306 of the Act the maxlmum penalty that can be imposed in the case of a body corporate is $1,000. That maximum gives rise to a range which gives little chance for differentiating between the circumstances of various offences. Nevertheless, it must remain true that the maximum possible penalty must be reserved for the most serious of cases, and in some circumstances for cases in whlch a person committing an offence has offended previously, either against that provision or against some other.
Neither of these two offences can be characterized as resulting from a dellberate attempt to act in contravention of the statute. In V1 26 of 1989, as I have said, the offence arose as a result of a mistaken view of the law and a mistaken view as to the orlgin of the right to enter and inspect. In the second case, the offence arose from the exigencies of a situation produced over many months
by the circumstances whlch are set out in the reasons for judgment.
In relation to V1 29, I do take into account that the defendant acted as it did in consequence of a cessation of work by some of its employees and the curta~lment of some of its essential functions whlch thereby occurred. In doing so, however, I do not accept wholly the submission of Mr. Tracey of counsel on behalf of the defendant that the company itself was blameless, or largely blameless, wlth respect to the occurrence of that situation. The chain of events which led to the cessation of work on 27th July undoubtedly resulted from a decision of the company, to which reference 1s made in the reasons for judgment, to offer employment at ~ t s premises on terms and conditions other than those on which persons had been employed previously. Whatever the rlghts and wrongs, legal and otherwise, of that decislon were, it is plain that it led directly to the occurrence of a picket line and to subsequent events.
Nor do I accept the submission, whlch was renewed on this occasion (havlng been dealt with unsympathetically to the defendant on the earlier occasion), that the conduct of persons on the picket line was something exceptional, or something to be condemned out of hand. I have already expressed the vlew that the evldence that I have heard in relatlon to the language used by picketers does not lead me
events which led to the setting up of the picket line. to believe that the situation was exceptional, given the
One other factor needs to be mentioned, particularly in relation to matter no. V1 29 of 1989. It is that, notwithstanding the time that has elapsed since reasons for judgment were delivered on 14th March 1990, the defendant is not able to Indicate that it has made any positive- attempt
to make reparation for the offence. It has expressed through
~ t s counsel today its willingness to facilitate any further attempt at inspection and says that no further attempt has been made, but it is not able to indicate that it has offered to undo the wrong which was done on 27th July last year, when the inspection that was occurring was interrupted.
In all of these circumstances it seems to me to be appropriate to Impose a fine of $500 in relation to matter No. V1 26 of 1989 and a fine of $750 in relation to matter NO. V1 29 of 1989.

I certify that thls and the preceding four ( 4 ) pages are a true copy of the Reasons for Judgment of the Honourable Justlce Gray.

Dated :

Associate l / k e

Counsel for the applicant:	Mr. A.J. Kelly
Solicitors for the applicant: Ryan Carlisle Needham Thomas

Counsel for the respondent: Mr. R. Tracey

Solicitors for the resp0ndent:Dunhill Madden Butler

Date of Hearing: 30th April 1990.