Employment Advocate v National Union of Workers

[2000] FCA 710

FEDERAL COURT OF AUSTRALIA

Employment Advocate v National Union of Workers [2000] FCA 710

INDUSTRIAL LAW – freedom of association under Part XA of the Workplace Relations Act 1996 employee declines to join union – conduct by officer of union – officer in conversation with an employer sought removal of a casual employee from worksite – “advise, encourage, or incite” – whether advice etc if taken would have injured the employee in his employment or altered the position of the employee to his prejudice – reasons for conduct in contravention of Part XA – whether conduct of officer based upon prohibited reason – whether advice etc if acted upon would have been for a prohibited reason – standard of proof under Part XA – operation of reverse onus provision – whether conduct of officer attributable to union

WORDS AND PHRASES – “advise, encourage or incite”

Workplace Relations Act 1996 (Cth) ss 83BA, 298T, 298P(3)(a), 298K(1), 298L(1)(b), 298U, 298A, 298B, 298V, 298Y

Acts Interpretation Act 1901 (Cth) s 15AA
Conciliation and Arbitration Act 1904 (Cth) ss 8, 138(1), 144A, 5(4)
Commonwealth Electoral Act 1918 s 329A
Industrial Relations Act 1988 (Cth)
Industrial Arbitration Act 1940 (NSW) s 95
Crimes Act 1958 (Vic) s 2A

Black’s Law Dictionary (7^th edition)
Glanville Williams’ A Textbook of Criminal Law (2^nd edition)

Australian Commonwealth Shipping Board v Federated Seamen’s Union of Australia (1925) 35 CLR 462 cited
Briginshaw v Briginshaw (1938) 60 CLR 336 considered
Mikasa (N.S.W) Pty Ltd v Festival Stores (1972) 127 CLR 617 referred to
Waugh v Kippen (1986) 160 CLR 156 cited
G v H (1994) 181 CLR 387 cited
Langer v Commonwealth (1995/1996) 186 CLR 302 distinguished
IW v City of Perth (1997) 191 CLR 1 cited
Newcastle City Council v GIO General Limited (1997) 191 CLR 85 cited
Patrick Stevedores No 2 Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1 followed
GTSFreight Management Pty Ltd v TWU (1990) 25 FCR 296 distinguished
Bowling v General Motors Holden (1975) 8 ALR 197 considered
General Motors Holden v Bowling (1976) 12 ALR 605 considered
Ansett v Australian Air Pilots Federation (1989) 95 ALR 211 approved
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449 cited
Beach Petroleum NL v Johnson (1993) 115 ALR 411 cited
Independent Education of Union of Australia v Canonical Administrators (1998) 157 ALR 531 considered

Maritime Union of Australia v Geraldton Port Authority [1999] 165 ALR 67 considered
David’s Distribution Pty Ltd v National Union of Workers (1999) 165 ALR 550 considered
Bennett v Milliner (1959) 1 FLR 312 considered
Moore v Doyle (1969) 15 FLR 59 referred to
Cuevas v Freeman Motors Ltd (1975) 25 FLR 67 referred to
Roberts v GMH Employees’ Canteen Society (1975) 25 FLR 415 applied
Heidt v Chrysler Australia Ltd (1975) 26 FLR 257 referred to
Wood v Lord Mayor City of Melbourne (1979) 41 FLR 1 distinguished
Linehan v Northwest Exports Pty Ltd (1981) 57 FLR 49 applied
Blair v Australian Motor Industries Ltd (1982) 61 FLR 283 considered
Mayne Nickless Ltd v TWU [1998] FCA 984 considered
National Union of Workers v Davids Distribution Pty Ltd [1998] FCA 1530 (North J) referred to
Employment Advocate v Transport Workers Union and Others [1998] FCA 1646 (Cooper J) considered
CFMEU v Coal and Allied Operations Pty Ltd [1999] FCA 1531 (Branson J) considered
Australian Workers' Union v BHP Iron Ore Pty Ltd [2000] FCA 39 considered
Australian Colleries Staff Association v BHP Coal Pty Ltd [2000] FCA 318, (Spender J) considered
BHP Iron Ore Pty Ltd v Australian Workers Union [2000] FCA 430 distinguished
AMACSU v Ansett Australia Ltd [2000] FCA 441 (Merkel J) considered
AMIEU v G & K O’Connor Pty Ltd [2000] FCA 627 (Gray J)
Squires v Flight Stewards Association of Australia (1982) 2 IR 155 applied
Hammond v Department of Health (1983) 6 IR 371 distinguished
AMIEU v Gilbertson Queensland Pty Ltd (1988) 26 IR 237 considered
Kelly v CFMEU (No. 3) (1995) 63 IR 119 considered and distinguished
Health Services Union of Australia v Tasmania (1996) 73 IR 140 considered
Kimpton v Minister of Education (Industrial Relations Court of Australia, unreported, North J, 22 February 1996) cited
United Firefighters Union of Australia v Country Fire Authority (Industrial Relations Court of Australia, unreported, North J, 24 December 1996) referred to
CEPU v Woodside Heating & Ors Dec 738/97 (Australian Industrial Relations Commission, unreported, decision 738/97, 27 June 1997) considered
Pelly v The Queen (1994) 13 WAR 372 cited
Bulle v the Queen (1984) Tas R 209 cited
Dimozantos v R (1991) 56 A Crim R 345 approved
Childs v Metropolitan Transport Trust (1981) IAS Current Review 946 considered
Taff ValeRailways v Amalgamated Society of Railway Servants [1901] AC 426 referred to
R v Most (1881) 7 QBD 244 referred to
Giblanv National Amalgamated Labourers’ Union [1903] 2 KB 600 referred to
Race Relations Board v Applin [1973] QB 815 cited

EINFELD J
29 MAY 2000
SYDNEY

TABLE OF CONTENTS

Introduction  1

The case  2

The critical conduct  2

The legislation  6

The standard of proof  9

“advise, encourage or incite”  11

Injury in employment and alteration of position to employee’s prejudice  16

Was Hearne an “officer” of the Union?  25

Was there injury or prejudicial alteration of position in this case?  27

A prohibited reason  34

Whether the Union is in breach: was Hearne acting in his capacity as an officer of the Union?  45

Conclusion  52

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 867 OF 1997

BETWEEN:

THE EMPLOYMENT ADVOCATE
Applicant

AND:

NATIONAL UNION OF WORKERS
First Respondent

PETER ANDREW HEARNE
Second Respondent

JUDGE:

EINFELD J

DATE OF ORDER:

29 MAY 2000

WHERE MADE:

SYDNEY

THE COURT DECLARES THAT:

1. the respondents’ conduct of 31 January 1997 constituted a contravention of section 298P(3) of the Workplace Relations Act 1996

THE COURT DIRECTS THAT:

1.the issue of the penalty to be imposed under section 298U(a) of the Workplace Relations Act 1996 be dealt with by the parties by way of written submissions

2.these submissions include any submissions as to costs

3.the submissions of the applicant be filed and served by no later than 4 pm on Monday 5 June 2000

4.the submissions of the respondents be filed and served by no later than 4 pm on Friday 8 June 2000

5.if oral submissions are also sought, the parties state their reasons in their submissions, for the consideration of the Court

6.if oral submissions are permitted, they will be heard at 9:45 am on Thursday 22 June 2000.  Not more than one hour in total will be available for oral submissions.  The parties are to confer on a division of this time

7.any party wishing to call evidence on the issue of the penalty to be imposed should contact my associate within seven days of the date of this judgment.

Note:    Settlement and entry of orders are dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 867 OF 1997

BETWEEN:

THE EMPLOYMENT ADVOCATE
Applicant

AND:

NATIONAL UNION OF WORKERS
First Respondent

PETER ANDREW HEARNE
Second Respondent

JUDGE:	EINFELD J
DATE:	29 MAY 2000
PLACE:	SYDNEY

REASONS FOR JUDGMENT

Introduction

1. The Employment Advocate (the Advocate), an office established by section 83BA of the Workplace Relations Act 1996 (the Act), has applied under section 298T(2)(d) of the Act for a determination that certain conduct of the second respondent (Hearne), claimed by the Advocate to be legislatively imputable to the first respondent (the Union), constituted conduct in contravention of Part XA of the Act. The Union is an industrial association for the purposes of Part XA. Hearne was at the relevant time an elected organiser of the Union’s New South Wales Branch. In formal terms the Advocate alleged that on 31 January 1997 the Union and Hearne advised, encouraged or incited an employer, Adecco Industrial Pty Ltd (Adecco), to injure Daniel Holloway, an employee in its employment, or to alter Holloway’s position to his prejudice, contrary to sections 298P(3)(a) and 298K(1)(b) and (c) of the Act respectively, for a prohibited reason within the meaning of section 298L(1)(b) of the Act, namely, that he was not and did not appear to intend to become a member of the Union. Holloway was at the relevant time employed as a casual by Adecco, an employment agency contracted to supply labour to David’s Distribution Pty Ltd (David’s) at Fyshwick in the Australian Capital Territory (ACT). The Advocate sought an order pursuant to section 298U(a) of the Act imposing a penalty upon each of the respondents in respect of this conduct. The maximum statutory penalty was $10,000 in the case of the Union and $2,000 in the case of Hearne. All these sections appear in Part XA.

   The case

2. The Advocate’s case was that on the morning in question, Hearne, acting in the capacity of an officer of the Union, had a telephone conversation with Adecco’s area manager, Lenore Routledge, during which he sought to have Holloway removed from David’s Fyshwick Grocery Distribution Centre (the warehouse) and deployed at another site or workplace because of his refusal or unwillingness to join the Union.  The Advocate argued that any such removal would have injured Holloway in his employment with Adecco and prejudicially altered his employment position.

3. There had been a long-standing ‘closed shop’ at the warehouse, against which there was no statutory prohibition at the time, so that David’s only employed, or gave preference of employment to, Union members.  The unionised employees of David’s objected to Holloway’s employment at the site because he would not join the Union.  Hence, the respondents argued that any conduct suggesting that Adecco relocate Holloway was aimed not at injuring him in his employment, but at preserving the preference agreement and preventing an on-site industrial dispute that appeared imminent.  Asking the Court to construe the provisions of Part XA strictly because they provide for monetary penalties, the respondents further contended that there was insufficient evidence that Holloway would have suffered any negative impact had Adecco acted upon the alleged incitement.  The respondents also disputed that Hearne was acting in his capacity as an officer of the Union at the time, and that the correct Union was named.

   The critical conduct

4. In ascertaining whether section 298 P(3) was contravened, it is, strictly speaking, only the telephone conversation between Hearne and Routledge on the morning of 31 January 1997 that is relevant.  There is no substantial discrepancy between the version offered by either party as to the content of this conversation.  Rather, it is the effect or meaning of the conversation that is in issue. 

5. In fact a large part of the affidavit evidence on both sides related to events that took place that morning after the critical conversation, yet as the respondents themselves submitted, a ‘breach’ of the provisions is committed “once and for all” at the time of the alleged act of incitement: Roberts v GMH Employees’ Canteen Society (1975) 25 FLR 415 at 418. Furthermore, as explained later, it is the act of incitement etc and not any response to it that is the proscribed conduct, provided of course that the incitement, if acted upon, would have had the relevant adverse effect and was motivated by a prohibited reason.

6. In order to place the critical telephone call in context, regard may be had to the surrounding circumstances, at least to the extent that their portrayal is not in dispute, including the content of telephone conversations between Hearne and Routledge before the critical conversation.  On 29 January 1997, Hearne was informed by Lionel Jacobs, the on-site Union delegate at David’s, that Holloway had commenced working at the warehouse but had not joined the Union.  It appears that Jacobs had previously approached Holloway to ask him to consider joining the union, but Holloway had not been interested.  Jacobs testified that he had made these approaches since other members of the union were “interested” in whether Holloway was a union member and were “asking questions” about the matter.  Holloway testified that Jacobs became angry at his decision not to become a member, and that he felt somewhat threatened to join, although Jacobs denied that he “raised his voice” during any of the conversations.  In any case, Holloway was at this point maintaining that he was not interested in joining the Union, although he may have been considering doing so.

7. Hearne telephoned Routledge shortly afterwards and they had a conversation to the effect that Hearne had heard from his delegate that one of Adecco’s casual workers at David’s was not a Union member, and was seeking to ascertain Adecco’s “stance” on this matter.  On the same day, presumably after his telephone discussion with Routledge, Hearne visited the warehouse where he spoke to Jacobs and met Holloway.  Hearne and Holloway had, on both accounts, an amicable conversation or discussion that revolved around the benefits of union membership.  Hearne wished to impress these benefits upon Holloway and asked him to consider joining.  Holloway explained to Hearne that he was not interested in obtaining membership, saying something to the effect that “I’ve never been in a union.  I’m just a casual here and the union is not interested in casuals.  They are no use to me”.

8. Hearne telephoned Routledge the next day (30 January 1997) and said that “all hell is about to break loose at David’s”.  Under cross examination, Hearne did not deny, but said that he could not recall, whether he had then said to Routledge words to the effect, as she testified, that he had just spoken to his delegate who had again approached Holloway to become a member, but that Holloway had refused.  Routledge also said, and Hearne did not deny, although he could not recall, that he had then inquired as to her “stance” on the issue in terms that “dependent on your reply, my members are ready to walk”.  Routledge testified to then going to the warehouse to see Holloway that day and said that he was still insisting that he was not about to become a member.  Holloway made no reference to this meeting, in his version of the sequence of events, although Routledge’s affidavit was not challenged on the point.

9. The critical conversation took place the next morning (31 January 1997).  Routledge’s version of this conversation appears in her affidavit sworn on 23 October 1997:

   At approximately 8:30 am on 31 January 1997, I received another telephone call from Mr Hearne. During that telephone call, we had a conversation to the following effect:

   He said: “Pull your casual out of there. He won’t become a member of the   union. I am not tolerating one person disrupting the whole thing.”

   I said:     “I have an obligation to my casual. If I pull him out I can be had up  for wrongful dismissal.”

   He said: “You have no obligation to him. Pull him out and stick him somewhere else. If you don’t do this I’ll spread the word for no-one to use [Adecco]. I’ll tell them to use [another employment agency] because they are more co-operative. I’ll tell David’s that they must use [the other agency] as well. I am going to organise to harass David’s daily and isrupt their whole organisation, until you get that man off site.”

   I said:        “Whatever happened to freedom of choice,Peter?”

   He said: “There is a democracy out there. All those people don’t want him. I have called a stop work meeting at 10.00 am this morning.”

   I said:        “I’ll see you there.”

   I then hung up.

10. Hearne admitted in cross-examination that he did say words to this effect, although he sought to qualify his answer by saying that “there was an explanation why I would’ve said such things” to Routledge.  Similarly, in his affidavit, Hearne stated:

    I may well have had a conversation with her [Routledge] around this time in which we discussed moving Daniel Holloway to some other place of employment……[s]uch a conversation would’ve taken place in the context of trying to prevent an industrial dispute erupting with the local members and the solution of Daniel Holloway working somewhere else meant that he would remain in employment and be paid while the potential for an industrial dispute would be avoided. It was in this context that the discussion occurred although I am unable to say on what date or at what time it occurred.

    It was not suggested to Routledge in cross examination that her memory or relation of the conversation was incorrect.  Moreover, in their further submissions dated 19 August 1999, the respondents set aside ten paragraphs under the heading, “[A]n analysis of events of 31 January”.  Nowhere in this analysis is the substantive content of the relevant conversation, as related by Routledge, disputed or challenged.  I accept that a conversation took place to the effect alleged by Routledge.

11. Hearne said that he did not call any stopwork meeting, and there is no evidence of any such meeting.  Nevertheless, on that morning and pursuant to the telephone conversation, Hearne went to the warehouse where a meeting was held at about 10 am between himself (and Jacobs), and Anthony English and Anthony Nichols from David’s, and Roger Beiser and Routledge from Adecco.  The events of that meeting are not of particular relevance, apart from the fact that Hearne announced to all present that Holloway had now agreed to join the Union. 

12. At some point prior to the 10 am meeting, therefore, Holloway had decided that he would become a member of the Union after all.  Jacobs testified that Holloway approached him on the matter, while Holloway says that it was Jacobs who came to him with Union forms to sign, and that he felt some pressure from Jacobs to do so.  Holloway could not recall exactly when he had told Jacobs that he would sign the membership forms and so join the Union, and although his evidence was not clear as to whether it was on 30 January 1997 or the next day, it must have been at some stage on the morning of 31 January 1997, since “a couple of hours later [after signing the forms]”, Holloway described how he was called into the meeting that had commenced at about 10 am, by which time Hearne and Jacobs had left the meeting.

13. The lack of clarity as to when Holloway joined the Union opens up the possibility that he may have done so before the critical conversation.  At that time, Holloway either had not yet signed on as a member, which is probable, or Hearne did not know that he had, which is possible, or he did know, and telephoned Routledge anyway, which is unlikely.  As the resolution of this question would have no effect on the conduct that the Act seeks to penalise, which is conduct directed at the employer, the matter does not need to be decided.  Nor is it strictly necessary for a determination of whether the conduct constituted an incitement of the prohibited kind, to find the precise circumstances, as opposed to the fact, of Holloway’s final agreement to join the Union.  The salient fact is that Hearne said the words relied on.  The respondents said that Hearne became involved because “he saw the situation as one which was about to erupt industrially following the failure of the local delegate, Mr Jacobs, in enrolling Mr Holloway in the NUW”.

    The legislation

14. Part XA of the Act is headed “Freedom of Association”. Section 298A sets out the specific objects of the Part as being (“as well as the objects set out in section 3”):

    (a)to ensure that employers, employees and independent contractors are free to join industrial associations of their choice or not to join industrial associations; and

    (b)to ensure that employers, employees and independent contractors are not discriminated against or victimised because they are, or are not, members or officers of industrial associations.

1. Section 298P(3) appears in Division 5 of Part XA, dealing with the conduct of industrial associations:

   An industrial association, or an officer or member of an industrial association, must not:

   (a)   advise, encourage or incite an employer; or

   (b)   organise or take, or threaten to organise or take, industrial action   against an employer with intent to coerce the employer

   to take action in relation to a person that would, if taken, contravene section 298K.

2. The prohibited conduct that is relevant in this case is conduct that would have the result contemplated in subsections (b) and (c) of section 298K(1):

   An employer must not, for a prohibited reason, or for reasons that include a prohibited reason, do or threaten to do any of the following:

   ……

   (b)   injure an employee in his or her employment;

   (c)   alter the position of an employee to the employee's prejudice;

3. The prohibited reasons referred to are contained in section 298L(1)(b):

   Conduct referred to in subsection 298K(1) or (2) is for a “prohibited reason” if it is carried out because the employee, independent contractor or other person concerned:

   (b)   is not, or does not propose to become, a member of an industrial association; or…

4. By section 4 an “officer” in relation to an organisation or branch of an organisation means a person who holds an office in the organisation or branch.  An “office”, in relation to an organisation or branch thereof, is in turn said by section 4 to be:

   (a)an office of president, vice-president, secretary or assistant secretary of the organisation or branch;

   (b) the office of a voting member of a collective body of the organisation or branch, being a collective body that has power in relation to any of the following functions:

   (i) the management of the affairs of the organisation or branch;

   (ii)the determination of policy for the organisation or branch;

   (iii) the making, alteration or rescission of rules of the organisation or    branch;

   (iv) the enforcement of rules of the organisation or branch, or the performance of functions in relation to the enforcement of such rules;

   (c) an office the holder of which is, under the rules of the organisation or branch, entitled to participate directly in any of the functions referred to in subparagraphs (b)(i) and (iv), other than an office holder of which participates only in accordance with directions given by a collective body or another person for the purpose of implementing:

   (i) existing policy of the organisation or branch; or

   (ii) decisions concerning the organisation or branch;

   (d) an office the holder of which is, under the rules of the organisation or branch, entitled to participate directly in any of the functions referred to in subparagraphs (b)(ii) and (iii); or

   (e) the office of a person holding (whether as trustee or otherwise) property:

   (i) of the organisation or branch; or

   (ii) in which the organisation or branch has a beneficial interest;

5. An “organisation” is defined in section 4 as an organisation registered under the Act, while section 298B(1) affirms that “organisation” includes a branch of an organisation and defines the meaning of “officer” more specifically by providing that for the purposes of Part XA:

   “officer”, in relation to an industrial association, includes:

   (a) a delegate or other representative of the association; and

   (b)an employee of the association.

6. Thus “officer” for the purposes of Part XA includes a delegate, representative or employee of an industrial association, unless a contrary intention appears: Employment Advocate v Transport Workers Union and Others [1998] FCA 1646 (Cooper J); CFMEU v Coal and Allied Operations Pty Ltd [1999] FCA 1531 (Branson J)

7. By section 298B(2) conduct such as the prohibited conduct here alleged may be attributed to or imputed to have been performed by the industrial association when, along with certain other instances, it is done by an officer of an industrial organisation acting in that capacity:

   For the purposes of this Part, action done by one of the following bodies or persons is taken to have been done by an industrial association:

   (a) the committee of management of the industrial association;

   (b) an officer or agent of the industrial association acting in that capacity;

   (c)a member or group of members of the industrial association acting under the rules of the association;

   (d)a member of the industrial association, who performs the function of dealing with an employer on behalf of the member and other members of the association, acting in that capacity.

8. By subsection (3) it is provided that paragraphs (c) and (d) do not apply if a committee of the management of the union, or a person authorised by that committee, or an officer of the industrial association, has taken reasonable steps to prevent the action sought to be attributed to the industrial association.  This provision is not under consideration in this case.

9. Section 298T is concerned with the procedures for bringing such matters to the Court. Subsection (1) provides that subject to subsection (4), an application may be made to the Court for orders under section 298U in respect of conduct contravening Part XA. Subsection (2)(d) provides for the Employment Advocate to make such applications. The type of order sought in this case is provided for by section 298U(a), by which the Court may make:

   (a)   an order imposing on a person or industrial association whose conduct contravened or is contravening the provision in question a penalty of not more than:

   (i) in the case of a body corporate - $10,000; or

   (ii) in any other case - $2,000;

10. Section 298V is concerned with proof of intent in an application to the Court under section 298T. It begins by providing that “Proof [is] not required of the reason for, or the intention of, conduct”, since:

    If:

    (a)in an application under this Division relating to a person's or an industrial association's conduct, it is alleged that the conduct was, or is being, carried out for a particular reason or with a particular intent; and

    (b) for the person or industrial association to carry out the conduct for that reason or with that intent would constitute a contravention of this Part;

    it is presumed, in proceedings under this Division arising from the application, that the conduct was or is being carried out for that reason or with that intent, unless the person or industrial association proves otherwise.

    The standard of proof

11. With regard to the standard of proof required of an applicant, section 298X indicates that a contravention of section 298K is not an offence.  The High Court in Patrick Stevedores Operations No. 2 Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1 at 18 affirmed as much:

    A contravention of s 298K(1) is not an offence but the Federal Court of Australia is given a wide jurisdiction to make orders in respect of contravening conduct.

12. For this reason, the civil onus of proof is applicable: Maritime Union of Australia vGeraldton Port Authority [1999] 165 ALR 67 at 96.  It was, however, submitted that the relevant standard of proof in these sorts of matters should be based upon the principle derived from the judgment of Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336 at 362, in a case concerning a petition for divorce on the ground of adultery, that:

    …reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters, “reasonable satisfaction” should not be produced by inexact proofs, indefinite testimony, or indirect inferences.

13. The respondents argued that the approach of the Court in this case must account for the fact that Part XA of the Act, in particular section 298K, is “penal in nature”.  In this respect they relied upon Mayne Nickless Ltd v TWU [1998] FCA 984, a decision of a Full Court of this Court (Chief Justice Black, Justices von Doussa and Carr). Their Honours said that although a breach of the provisions of section 298K is a “serious matter, the penal provisions are nevertheless not criminal in character”. It was argued that because proceedings are of a penal nature, and because of the serious nature of the allegations and the consequences of a finding of breach, it is appropriate that the Court adopt the critical Briginshaw approach to the evidence before making the finding. 

14. The Advocate argued that because one of the elements of the offence involves a reverse onus, Parliament clearly did not intend the full Briginshaw standard to apply to the other elements: see G v H (1994) 181 CLR 387 at 399-401, and that the argument on interpreting penal provisions is a common law rule that in this case must yield to the specific directions of the legislature. Of course, section 298A clearly sets out the objectives of Part XA, and if it were necessary section 15AA of the Acts Interpretation Act 1901 indicates that “a construction that would promote the purpose or object underlying the Act shall be preferred to a construction that would not promote that purpose or object”. The Advocate further contended that although Part XA contains remedies including penalties, it is primarily protective and remedial in nature and its penal elements must be seen in this light. It is remedial in the sense that the object of the Part is to protect the rights of individuals along the lines of an anti-discrimination law. Such laws should where possible be construed beneficially: IW v City of Perth (1997) 191 CLR 1 Brennan CJ and McHugh J at 12, Gummow J at 39 and Kirby J at 58. The High Court has also held in the employment context that where a remedial law also has a penal aspect, and the two canons of construction appear to conflict, the penal construction must yield to the remedial one: Waugh v Kippen (1986) 160 CLR 156 at 164-5; Newcastle City Council v GIO General Limited (1997) 191 CLR 85 at 109-111. The High Court has also reaffirmed that Dixon J’s approach remains authoritative: see Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449 at 449-450 per Mason CJ, Brennan, Deane and Gaudron JJ. See, too, the decision of Justice von Doussa in Beach Petroleum NL v Johnson (1993) 115 ALR 411 at 435.

15. In Geraldton Port Authority, Justice RD Nicholson applied the Briginshaw standard to the sections currently under consideration, having found at 96 that the allegations were serious in character and that the whole trial had been conducted with exhaustive exactitude. His Honour emphasised that we are still speaking of an application of the civil standard of proof on the balance of probabilities. Further, since this case was heard, the Briginshaw standard has been applied in other decisions, involving these sections of the Act: Australian Colleries’ Staff Association v BHP Coal Pty Ltd [2000] FCA 318 (Spender J); AMACSU v Ansett Australia Ltd [2000] FCA 441 (Merkel J). I think that in dealing with these types of civil offences some standard of proof above mere satisfaction on the probabilities is appropriate. The Court is in any event bound by section 140(2) of the Evidence Act 1995 to take into account the nature of the cause of action, the nature of the subject matter of the proceeding and the gravity of the matters alleged in determining whether it is reasonably satisfied that the matter has been proved.

    “advise, encourage or incite”

16. The conduct contemplated does not have any technical or secondary meaning.  Black’s Law Dictionary (7^th edition) defines the verb “incite” to mean “to provoke or stir up (to commit a criminal act, or the act itself)”.  The idea of giving “advice” has an obvious meaning related to the notion of guidance offered to the person concerned.  Black’s defines the verb “encourage” in a manner that includes incitement: “to instigate; to incite to action; to embolden; to help”. The terms are used together in other statutory contexts, mostly criminal. For example, section 2A of the Crimes Act 1958 (Vic) defines “incite” to include “command, request, propose, advise, encourage or authorise”.

17. The inclusion of all these terms in the section probably indicates that a relatively synonymous meaning should be given to each: see for example Bulle v the Queen 1984 Tas R 209 at 218 per Cox J, where it was held that the terms “incite” and “instigate” are for practical purposes synonymous. There seems no reason to limit the meaning of the composite phrase to the lowest common denominator of conduct evident from one of the terms, so that it is probably not fatal to an application that the conduct might be characterised as “encouragement” but not as “incitement”. Either the terms should be considered together so as to give a composite understanding of the type of conduct that has been proscribed, or it may be that if conduct is capable of characterisation as “incitement” for instance, it would not be necessary to show that it was also capable of characterisation as “advice” or “encouragement”.

18. It is instructive to consider the meaning that courts have given to these terms.  While “incitement” might be understood as being something more specific than “encouragement” or “advice”, involving perhaps more direction behind the conduct towards an outcome, this is not necessarily so.  “Incitement” is not a word of such uncommon use that it necessarily requires a special meaning: Pelly v The Queen (1994) 13 WAR 372 at 376. Glanville Williams’ A Textbook of Criminal Law (2^nd edition page 364) opines that the word “incite” generally speaks for itself, but includes advise, encourage and authorise, as well as persuade by threat.  However, it has been said that an incitement to act need not involve any threat element but can take the form of encouragement or persuasion: Race Relations Board v Applin [1973] QB 815 per Lord Denning MR at 825 with whom Buckley and Stephenson LJJ agreed at 829.

19. In Australian Commonwealth Shipping Board v Federated Seamen’s Union of Australia (1925) 35 CLR 462 at 477-478, Isaacs J, accepting the definition given in R v Most (1881) 7 QBD 244 at 258, defined “encourage” to include:

    to intimate, to incite to anything, to  give courage to, to inspirit, to embolden, to raise confidence, to make confident

    The High Court was giving consideration to, amongst others, section 8 of the Conciliation and Arbitration Act 1904 which provided that an organisation of employees which, for the purpose of enforcing compliance with the demands of employees, ordered, encouraged, advised or incited its members to refuse to accept employment would be deemed guilty of a strike. It is evident from the reasoning of Isaacs and Starke JJ that conduct constituting “encouragement” was taken as a broad notion, broad enough in that case to include inferences from silence: see the reasons of Starke J at 492.

20. In Bennett v Milliner (1959) 1 FLR 312, the Commonwealth Industrial Court (Dunphy and Morgan JJ) considered the prosecution under section 138(1) of the Conciliation and Arbitration Act 1904 of Milliner, an officer of an industrial organisation, for advising and inciting a person to refrain from working in accordance with an award.  Milliner had said to the employee: “I am directing you not to work the offset press.”  After being confronted by a third party as to his authority to make such a direction, Milliner said to the employee: “Well son, I am telling you, do not work the offset press, or there will be real trouble.”  Dunphy J held at 317 that the defendant both “advised” and “incited” the employee within the meaning of the section.  Preferring the third party’s evidence as to the actual words used, he said:

    Even if I were to accept absolutely Milliner’s statement in evidence in chief that his remark, “Son, don’t go near the offset because there will be trouble if you do” was made in a “brotherly” manner it certainly was advice in the language of the statute or indeed, in any other language.  “Incite” means to urge or spur on or to stir up, but it seems to me that, in certain circumstances at any rate, the difference between advising and inciting could be a matter of emphasis or inflection.

    Words used in an advisory manner could become inciting if used in a different tone of voice or in different circumstances.

    He then held that the direction to cease working the press and go back to another machine amounted to an incitement.

    At 322 it appears that Morgan J likewise considered the “brotherly” conduct to have been “advice” even though the initial words were more in the form of a direction to the employee.  On this basis Morgan J upheld the first charge that had used the term “advise”.  He then said:

    The meaning of the word “incite” is not the same as the meaning of the word “advise”, although I think that the meanings of the two words are not mutually exclusive. A person could advise a course of conduct without inciting, but perhaps he could seldom incite without advising. Meanings of the verb incite are “To urge or spur on, to stir up, to instigate”.

    On this basis Morgan J held that the directions given to the employee constituted “incitement” since it was really the defendant who “instigated the matter”.  The meaning of the word “incite” is not the same as the word “advise”, but the meanings are not mutually exclusive and the difference between them may be simply a matter of emphasis or inflection.  Incitement does seem somewhat more positive than advice, and includes it (at 317 Dunphy J spoke of “advising or even inciting”), but whether there is any significance in the difference depends on the circumstances.

21. It is not always necessary to consider the meaning of the terms in this contrasted manner, for if the conduct constitutes, say, “incitement”, it will usually not be necessary to show that it is also “encouragement”.  In Ansett v Australian Air Pilots Federation (1989) 95 ALR 211, Brooking J noted the decision in Milliner while considering section 312 of the Industrial Relations Act 1988, which was relevantly similar to the provision considered in the latter case. Coming to a conclusion on the facts before him, Brooking J said at 249:

    I think it is clear that all members who received the directive were incited to refrain from working in accordance with their award and it is unnecessary to consider whether they were in addition advised or encouraged.

22. It follows from the terms incitement, advice and encouragement themselves, as well as from the tense used in section 298P(3) which prohibits action “that would if taken, contravene section 298K” [my emphasis], that there is no need for the employer to act upon the incitement, advice or encouragement in order for the section to be contravened. Any action actually contemplated or taken by the employer is irrelevant for the purposes of section 298P(3) and unnecessary for a breach of the section. In Ansett at 248-9 Brooking J said:

    [W]hereas in considering whether a breach of contract has been induced or procured one is considering a question of causation, this is not so where the question is whether a union member was advised, encouraged or incited.  The authorities – I do not pause to cite them – make it clear that at common law the offence of incitement does not require that the act of the accused should actually influence the person whom he solicits, and I see no reason for taking a different view with regard to a statutory offence. It is also part of the common law that you can be convicted of incitement even though the person incited has already conceived the idea of committing the offence: R v Crichton (1915) SALR 1.

1. To similar effect is Dimozantos v R (1991) 56 A Crim R 345. At 349 the Victorian Criminal Court of Appeal confirmed that the offence of incitement is constituted solely by the conduct of the inciter and is complete upon that person’s act. That means that it is not necessary to show that the employer incited acted upon the incitement. There is of course a breach if the employer responds to the incitement, follows the advice or acts upon the encouragement. But if the advice etc is completely ignored, the contravention is still complete if it would have had the proscribed result had it been acted upon.

2. Another quite separate issue is whether the employer’s stance or response is relevant to a consideration of the alleged reasons for acting. The respondents sought to argue that there is significance in the distinction between paragraph (a) of section 298P(3), whereby an officer of an industrial association must not advise, encourage or incite an employer, and paragraph (b) whereby an officer may not organise or take or threaten to organise or take industrial action against an employer with the intention of coercing that employer to contravene section 298K. In this case only paragraph (a) was pleaded. The respondents suggested that, if anything, the coercive paragraph (b) would have been a more appropriate characterisation of the conversation and the general facts of this case. They argued that the terms incitement, advice, or encouragement in paragraph (a) suggested some degree of collusion or co-operation between the inciter etc and the employer, which was absent in this case, and that if anything the circumstances should be characterised as a threat of industrial action under paragraph (b).

3. In Langer v Commonwealth (1995/1996) 186 CLR 302, the High Court was dealing with section 329A of the Commonwealth Electoral Act 1918 which prohibited the printing, publishing, or distribution of any matter with the intention of encouraging voters to fill in ballot papers informally. Justices Gaudron and Toohey at 330 drew a distinction between conduct intended to inform, which was not prohibited, and conduct intended to encourage non-compliance with the Electoral Act, which was.  Similarly Justice Brennan at 318 held that the provision did not prohibit advocacy but only “intentional encouragement” of the filling in of ballot papers in a way that would result in them being excluded from the count.  Interestingly, Justice Dawson at 323 remarked in dissent that, except where there was “active encouragement”, there was a “thin line” between imparting information to inform with the intention of encouraging its application, and imparting information with the intention merely to inform.  The respondents argued that the majority judgments illustrate the need for proof of an intentional element in the term “encouragement”, and emphasised that the terms “incite”, “advise” or “encourage” imply a need for the conduct to have some degree of conspiracy about it that was lacking in this case.

4. While it might be one way of characterising the effect of the conversations to say that Hearne was coercing the employer, in my view the submission that the patent lack of co-operation or collusion by Adecco means that the conduct was not incitement, advice, or encouragement, has no basis. The fact that paragraph (b) of section 298P(3) proscribes coercion of the employer does not mean that paragraph (a) requires some sort of collusion. No doubt advice etc may be given in circumstances where a threat accompanies the advice, and is part of it. It is clear that the legislature did not wish to limit possible contraventions to cases where coercion was involved but also to constitute as a breach the mere act of putting the contravening proposition to an employer (whether a willing recipient or a shocked rejectionist). I do not see any reason to restrict paragraph (a) to instances where the employer is colluding or co-operating with the officer.

5. From the critical conversation it is to my mind clear that Langer is of no assistance: it cannot on any view be said that Hearne was simply “informing” Routledge.  In my view he was at least inciting, advising or encouraging her to remove Holloway from the employment site.  The conduct may also have had coercive undertones indicative of conduct proscribed by paragraph (b).  Although he denied that he would have said, “I am going to organise to harass David’s daily until you get that man off-site”, Hearne agreed in cross examination that he may indeed have said that if the agency did not co-operate with his advice, he would spread the word for “no-one else to use [it]”.  However, it is unnecessary to do down this “coercive” route, which was not pleaded, since having regard to the authorities, it seems clear enough that the conversation constituted either incitement, advice, or encouragement, or all of these, of Routledge by Hearne to remove Holloway.

   Injury in employment and alteration of position to employee’s prejudice

6. It was argued that if Adecco had taken the course of action proposed by Hearne, and removed Holloway to another worksite, Holloway would have been injured in his employment contrary to paragraph (b) of section 298K(1) and his removal would also have altered his position to his prejudice contrary to paragraph (c).

7. It is apparent that as a matter of general approach, a somewhat generous interpretation of what constitutes “injury” or “prejudice” has been adopted by the courts, although it is clear too that employment is not a general condition, and the circumstances of the particular employment are critical to any finding.  Prejudicial alteration is plainly wider than the notion of ‘injury’ and includes that notion.  It is a broad additional category.

8. The High Court considered these two paragraphs of section 298K(1) in Patrick Stevedores.  Brennan CJ, McHugh, Gummow, Kirby and Hayne JJ said of the provisions that:

   Paragraph (a) covers termination of employment; par (b) covers injury of any compensable kind; par (c) is a broad additional category which covers not only legal injury but any adverse affection of, or deterioration in, the advantages enjoyed by the employee before the conduct in question.

9. No exhaustive catalogue of possibly injurious circumstances could or should be attempted. A wide array of circumstances can be contemplated.  In Kimpton v Minister of Education (North J, unreported, 22 February 1996), the Industrial Relations Court of Australia was prepared to entertain the argument that a requirement that an employee participate in an investigatory process may amount to a relevant injury or prejudicial alteration of position.  In Patrick Stevedores itself, the High Court found that steps by the member companies of the appellant group, taken because of the employees’ membership of the Maritime Union of Australia, which had the effect of diminishing the solvency of the employer companies, altered the position of those employees to their prejudice within the meaning of the Act.

10. A wide meaning to the term “injure in his employment” was approved of by Ellicott J in Squires v Flight Stewards Association of Australia (1982) 2 IR 155. A union threatened to take industrial action against an employer unless the applicant, Squires, was stood down for one month. The Court held that it would constitute an injury to an employee in his employment if he was stood down from his employment in this way, even though he would still have been on full pay. Ellicott J said that this conduct should be seen as injuring the employee in his employment because the employee was singled out by the employer, at the request of the union, and treated differently to other employees for reasons not associated with the manner in which he was performing his work. The general approach of the Court in that case has been followed in the subsequent authorities, while the remarks of Ellicott J at 164 are apposite to the present case:

    …action by an employer in standing down an employee even on full pay for a month is action which injures the employee in his employment. In taking such action he is singled out by the employer and treated differently to other employees and for reasons not associated with the manner in which he is performing his work. An employee may not be entitled, under his contract of service, to demand work at a particular time or place, but when he is stood down, not because work is unavailable but because of a request by his union the taking of that step is, in my opinion, an injury to him in his employment. The words `injure in his employment' are in the context of s. 5 words of wide import. I do not regard them as referring only to financial injury or injury involving the deprivation of rights which the employee has under a contract of service. They are, in my view, applicable to any circumstances where an employee in the course of his employment is treated substantially differently to the manner in which he or she is ordinarily treated and where that treatment can be seen to be injurious or prejudicial. Singling him out to be stood down from his employment for a period in circumstances where his fellow employees won't work with him for that period is in my view clearly an injury to him in his employment.

11. In Geraldton Port Authority at 100 Justice Nicholson considered the concepts of “injury” and of the “position” that would be subject to any prejudicial alteration. His Honour appears to have supported the viewpoint that “injury” refers to the deprivation of one of the more immediate practical incidents of employment (see Smithers J in Childs v Metropolitan Transport Trust (1981) IAS Current Review 946 at 948), while the concept of prejudicial alteration is a broader concept which may be considered to have been added to or supplemented the concept of injury so as to cover the situation “where injury was not manifested to the employee”.  His Honour noted the decision of Evatt J in Blair v Australian Motor Industries Ltd (1982) 61 FLR 283 which at 290 adopted the views of Smithers J in Childs:

    It is clear in my view that the words [or alter his position to his prejudice] were added to the section to overcome a situation in which an employer did something short of dismissing an employee but which was something which could be said to be harmful to him in his employment.

12. Justice Nicholson noted the consideration given in Childs to the concept of “position” where a distinction was made between the immediate incidents of day-to-day employment and an employment in all its attributes.  Smithers J preferred to understand the term “position” in the wider sense:

    It is possible to read the word “position” in a narrow way merely as referable to the immediate incidents of day-to-day employment. But I do not see any reason why it should be so circumscribed in meaning. It seems to me that the word “position” should be read rather to refer to a man's employment position in all its attributes and that to find what those attributes are in any particular case, you look at the terms of employment, the terms of the agreement in relation to the particular employment. Fear of alteration of any of those terms or of the entitlements thereunder would be as potent a factor inhibiting an employee from operating the Act as fear of dismissal, or loss of pay or something in the nature of an immediate injury. I think therefore that cancellation or repudiation of a term of employment which has been agreed upon, cancellation or repudiation by an employer which the employee is in no position, legal or otherwise, to resist or oppose, although he may get some legal rights in relation to it, by withdrawal of a promise of secure employment in a position for an agreed term is an alteration in the employee's position within the meaning of s. 5, and I think it takes place on the day of cancellation or repudiation of the promise that was made. From then on his position is substantially altered. The term has gone.

13. In considering the facts of the matter before him, Justice Nicholson held at 104 that an offer of voluntary redundancy could not constitute a threat to injure an employee in his or her employment as it was an offer the employee may accept or reject; once accepted, employment ceases so that there is nothing against which to measure any alleged injury arising from the redundancy.  His Honour interestingly held that:

    Consequently, allegations of worse terms and conditions being inevitable on engagement in new employment are not relevant to alleged injury in the former employment. Section 298K(1)(b), even given its wide connotation, does not address employment as a general condition but is referable to the particular employment in which the injury is said to have occurred or been threatened. Cf Australasian Meat Industry Employees' Union v R J Gilbertson (Queensland) Pty Ltd (Gray J, Federal Court of Australia, 8 December 1988) unreported, 15-17.

14. At 105 his Honour considered whether the reduced opportunity to perform overtime work could constitute a prejudicial alteration to the positions of the applicants within the meaning of section 298K(1). There was no evidence of actual denial of overtime or present loss of overtime. As to overtime capable of being earned in the future, his Honour noted the difficulty in quantifying the extent of the reduction with certainty because of, among other things, the month by month variation in the availability of such work at the Geraldton Port and the numbers of persons able to perform or interested in it. The award in question did not guarantee any particular level of overtime, which meant that “there [was] no definitive benchmark…against which to measure injury or prejudice”. Nevertheless, referring to other evidence, his Honour was content to make the following finding at 108:

    On the authorities previously referred to it is likely that the probable reduction will reduce the earnings of the second applicants and the MUA employees from overtime below the average levels earned during the 21 month period prior to the changes for which figures are available as reflected in the Table.

    In my opinion the prospect of reduction in overtime earnings of the second applicants and the MUA employees comes within the understanding in the case law of the concept of prejudicial alteration to their positions. The change in that respect is one which qualifies therefore as conduct pursuant to s 298K(1)(c). 

15. Justice Nicholson then considered the contention that the threat of redeployment of employees in that case could, notwithstanding the provisions of the statute and regulations in question, be a threat of injury because those provisions did not specify that any replacement job be remunerated at the same rate.  Because of provisions in the regulations defining ‘suitable employment’, his Honour held that the prospect or threat of redeployment:

    cannot in itself necessarily constitute a threat to injure or a threat to alter the position of an employee to the prejudice of that employee. Until the facts of the redeployment fall out it is not known whether they will be injurious or prejudicial. It remains open, as the PSM Regulations expressly acknowledge, that redeployment could take place either without injury or prejudice or with enhancement. The second applicants cannot therefore now establish a threat to injure in employment or a threat to alter their position in this respect. Evidence which established that the isolated location of Geraldton meant that redeployment in that area would be difficult is not evidence which establishes the necessary injury or prejudicial alteration. In the circumstances of this matter s 298K(1)(b) cannot operate in respect of a threat to redeploy and would only operate where there was evidence arising from a particular proposed redeployment. Even then, the fact that provision for redeployment formed part of the conditions of employment would require close consideration

16. More recently, in CFMEU v Coal and Allied Operations Pty Limited cited at [20] Justice Branson at [94] considered the argument that since none of the employees in that case had his employment contract varied, his job changed, or his position altered in any obvious way, none of them was injured in his employment or had his position altered to his prejudice by the issuance of warnings by the employer as part of the employer’s disciplinary procedures.  Her Honour noted that the effect of the passage from Patrick Stevedores quoted at [44] above is that it is not only the alteration of the legal rights of an employee that is relevant to the question of whether an employee has suffered a prejudicial alteration of position. For this reason she was able to find that the effect of the warnings issued in that case was to make the employees’ continuing employment less secure, and that the respondents had therefore altered the position of those employees to their prejudice within the statutory meaning.

17. More recently still, Justice Gray had occasion in Australian Workers' Union v BHP Iron Ore Pty Ltd [2000] FCA 39 to consider, for the purposes of an application for an injunction, the meaning and ambit of the two concepts. The issue was whether, in a situation where there had been no change to the terms and conditions of some employees, but the conditions of others had improved, it could be said that this relative change could amount to injury in employment or prejudicial alteration of the employee's positions. Finding support from various other decisions including Health Services Union of Australia v Tasmania (1996) 73 IR 140, United Firefighters Union of Australia v Country Fire Authority (Industrial Relations Court of Australia, unreported, North J, 24 December 1996) and Geraldton Port Authority, his Honour held at [30] that:

    It is strongly arguable that an actual diminution in the terms and conditions of employment of an employee is unnecessary before it can be said that that employee has been injured in his or her employment, or has had his or her position altered to his or her prejudice. The offer of superior terms and conditions to other employees, coupled with a refusal to offer them to those who wish to have their employment regulated in a collective way, is arguably conduct which falls within par (b) or par (c) of s 298K(1) of the Workplace Relations Act 1996 (Cth), if it is engaged in for a prohibited reason.

18. On appeal, a Full Court of this Court (Chief Justice Black, Justices Beaumont and Ryan) disagreed with the conclusion reached by Justice Gray, holding that the focus was on the acts of the employer, and that there had not been any differential treatment by the employer of any of the employees by reason of their union membership.  With regard to the element of injury, the Full Court held that even if a relative change could be discerned in the conditions of those who had and those who had not accepted the offer of individual workplace agreements, the change was not due to an intentional act of the employer: BHP Iron Ore Pty Ltd v Australian Workers Union [2000] FCA 430 (BHPIO) at [38]. The Full Court held that there had not been any discriminatory “singling out” by the employer in the Squires sense of any of its existing workforce and was not prepared to consider future possible injury by exclusion from promotion etc of those who had not accepted the offer.  At [48] the Court said:

    It is apprehended by the applicants [the union] that employees who elect not to sign individual workplace agreements will, in the future, be excluded from consideration for promotions or changes of shifts to which they as well qualified by experience or training as employees who have accepted the offer.  On the evidence, this has not happened and, until it does, it is not open to find that BHPIO has injured in their employment, or has altered to their prejudice the position of, those employees who remain regulated by the awards.

19. It is thus apparent from various decisions of the courts that the inquiry is to be focused on the particular circumstances of the particular employment, so that the alleged injury or alteration of position of the employee has to be examined in the light of the circumstances of the individual employee: see for example BHPIO (Full Court) at [35], Geraldton Port Authority at 104.

1. In Health Services Union of Australia v Tasmania, Justice Marshall considered section 334 of the Industrial Relations Act 1988 which was relevantly indistinguishable from section 298K(1). His Honour applied the “singling out” test articulated in Squires along with the “expectations and benefits” inquiry demonstrated in Linehan v Northwest Exports Pty Ltd (1981) 57 FLR 49 at 62, to which I shall return. The Full Court in BHPIO at [41] approved of and undertook the “singling out” inquiry, after reference to this judgment of Justice Marshall. 

2. The concepts of injury in employment and prejudicial alteration of position as they operate in section 170MU(1) of the Act, where the phrasing of these concepts is almost identical to section 298K(1)(b) and (c), were also considered by Justice Ryan in Independent Education Union of Australia v Canonical Administrators (1998) 157 ALR 531. At 548 his Honour held that the subsection:

   precludes an employer from discriminating against an employee wholly or partly for the same reason, by, for example, the allocation of less congenial shifts or rosters or affording fewer opportunities for overtime than are extended to other employees.

   This explanation was referred to with apparent approval in Geraldton Port Authority at 102 and by the Full Court in BHPIO at [48], where it said that these observations extended only to an alteration in the employee’s position which has been brought about by a discriminatory act of “singling out” by the employer for a prohibited reason.

3. It has in the past been held, for the purposes of leave to commence a prosecution under section 95 of the Industrial Arbitration Act 1940 (NSW), that when determining whether a prima facie case has been made out that an employer has injured a person in their employment or prejudicially altered the person’s position, an objective view must be taken: Hammond v Department of Health (1983) 6 IR 371 at 375. It was observed, for example, that a change resulting in less job satisfaction from the employee’s point of view would not for that reason alone be sufficient to constitute a relevant injury or alteration. This position is no doubt correct, for the inquiry is an objective one in the circumstances. On the particular facts of that case, the Industrial Commission of New South Wales in Court Session found at 376 that the alteration had meant that the employee was still employed by the same department in the same field, at no reduction to salary or conditions. It considered that any “potentially diminished promotional prospects” arising from the change that had occurred to the employee’s circumstances were “too nebulous to weigh in the balance”.

4. In oral argument in the present case, the respondents drew attention to the facts of Hammond in some detail, in support of their submission that any potential alterations to Holloway’s position or any injury would have likewise been “too nebulous” to be accommodated within the statutory provision.  By way of contrast it is worth noting that one of the foremost reasons why future possibilities were not considered significant in Hammond was that the employee concerned was unwilling to move from the Goulburn area, and so her future promotional prospects were curtailed anyway.

5. In AMIEU v Gilbertson Queensland Pty Ltd (1988) 26 IR 237 at 250, Justice Gray held that exclusion from being a regular daily employee could, in theory, amount to injury in employment or alteration of position to prejudice of the employee:

   There is no reason, other than some prohibition under a statute or award, why a contract of employment should not provide that an employee only works on days when required by the employer……[i]f such a continuing contract, with a right to engage for actual work from time to time, existed, it might be said that a person who was not engaged at all was injured in his employment by being excluded from being a regular daily employee, or by refusal or failure to re-engage as a regular daily employee. The determination of this issue must await the evidence.

   His Honour then concluded that:

   It is plainly possible for someone who usually employs someone else to alter the latter’s position to this or her prejudice by refraining from such employment

   Of course, whether this is so in any case depends, as Justice Gray observed, upon the particular evidence in the case.  In this sense his Honour’s observations are consistent with those expressed in BHPIO, noted at [55], and elsewhere regarding the need to examine the circumstances of the position in question. 

6. The Advocate drew particular attention to the facts and decision in Linehan. The case involved three prosecutions under section 144A of the Conciliation and Arbitration Act 1904 as a consequence of the dismissal of an employee. The employee, Michael Foley, worked on a day-to-day basis when work was available. If work was not available, he went home. It was submitted on his behalf that his status or position could be gauged by a number of factors: he was not specifically employed as a casual, he was employed on a similar basis to others doing the same work in that section of the works, he was paid weekly, he had regular employment, he was issued with company clothing, and if he had not been terminated, he would have been entitled to leave over the Christmas break and to commence again after that if work was available. He was also entitled to sick leave and annual leave payments. Ellicott J was satisfied that Foley had achieved such a degree of permanence in his employment that if he turned up on a particular day for work, and work was available, it was likely that he would have been employed. He was in this sense a ‘permanent’ rather than a ‘casual’ employee.

7. Two of the informations were rejected at 61-2 because it could not be accepted that Foley had been ‘dismissed’ or threatened with dismissal as he was only employed on a day-to-day basis, and ‘dismissal’ meant terminating an existing employment, not refusing to re-employ someone.  However, the third information was found to be proved on the evidence that Foley had an expectation of being engaged each day if he turned up to the site and work was available.  Ellicott J considered that the loss of the possibility or expectation of future work could constitute alteration of the employee’s position to his prejudice even though he was only employed on a day-to-day basis.  This loss did in fact constitute an alteration of Foley’s position to his prejudice within the meaning of section because he would not be employed again even if work became available.  The ‘termination’ of Foley’s relationship with the employer, it was found, came about because it had been indicated that the union would take industrial action unless Foley agreed to take out union membership, which he refused to do.  Ellicott J found it proven that the employer had altered Foley’s employment to his prejudice, and as it had not been proved on a balance of probabilities that a substantial and operative factor in the removal was not that Foley was not a member of the union, the prosecution succeeded.  Ellicott J concluded at 62:

   I am satisfied beyond reasonable doubt that he was engaged with the status of a regular or permanent employee who, although his employment terminated at the end of the ordinary working hours on each day, was entitled to certain benefits including the expectation of work each day if, pursuant to his obligation to do so, he turned up and it was available.  He was also entitled to annual leave and sick leave payments. When his employment ended……and the company refused to treat him as having regular or permanent status he lost this status and the expectations and benefits that went with it. By doing so, the defendant altered Mr Foley’s employment to his prejudice.

   The usefulness of that case to the somewhat apposite facts of this case is tempered by the fact that the employer presently in question is not the owner of the business where the work was actually done, but rather the employment agency that placed the employee there.  However, the circumstances of Holloway’s deployment to the David’s site are relevant since it is partly with reference to that site that any injury or alteration would have occurred, albeit in the context of his position within Adecco, being the relevant employer.  And the case law demonstrates that the outcome of this analysis in any particular case is highly dependent upon its particular facts as to whether injury or prejudicial alteration has occurred (or, in the present case, would have occurred).  The respondents did not argue that Holloway, as a ‘casual’, should not have been considered ‘employed’ by Adecco, possibly because any such argument might have had to confront the result reached in Linehan.

   Was Hearne an “officer” of the Union?

8. As Hearne was the person alleged to have committed the contravening conduct, the first question to be decided is whether he was an officer of the Union at the time.  If not, the Advocate’s case must fail at the threshold.  In the 1994 elections for federal offices in the Union, Hearne was elected, in accordance with rule 13 of the Union’s rules, for the normal four year term, to be “Distribution Division-Organiser” and also to be a “Delegate to the National Council”.  The 1996 and 1997 annual returns of information of the New South Wales Branch of the Union list the various offices in the Branch, and the names of the Branch’s “office holders”.  For both years Hearne was described as being the “Organiser (Distribution), Delegate to the National Council”.  His “Occupation” is recorded as “Union Organiser”.  Under rule 37, the New South Wales (NSW) Branch of the (Federal) Union includes the ACT where the warehouse was situated.  It is also apparent from rule 71(13) that branch officers include elected organisers.

9. If this evidence were not sufficient, it was apparent from the evidence of witnesses for both the Advocate and the respondents that Hearne was at the time an organiser for the Union, and should therefore be considered an “officer” of the Union for the purposes of the Part.  Scott Costello, at the time a supervisor at the warehouse, deposed that he dealt with Hearne as “the local organiser of the NUW”.  Anthony English was in charge of the warehouse.  He testified that as a supervisor, before he was promoted to manager, he did not have a great deal of contact with Hearne, although he was present with the then distribution manager at meetings which Hearne attended as an organiser for the Union.  Mostly, meetings with the Union representatives involved only the Union’s local representative within David’s, and Hearne, he said, “only became involved in the event that David’s management and the local delegate could not resolve the issue”.  After he became centre distribution manager himself, English attended meetings where Hearne was present.  Anthony Nichols, then a warehouse supervisor, but at one time a co-delegate of the Union himself, testified to having known Hearne while Hearne was still employed at David’s as a storeman and afterwards when he became an organiser for the Union.  He too said that Hearne would only come to the warehouse occasionally to deal with specific problems or simply to check on things with the local delegates.  Jacobs, the elected delegate of the Union for the warehouse at the time, explained that Hearne was an organiser for the Union.  He described how his understanding of the new Act was due to discussions he had had with Hearne in the latter’s capacity as the Union organiser, and that he had introduced Hearne to Holloway as “the NUW Organiser”.  Hearne himself testified to being an elected organiser of the New South Wales Branch of the Union, saying his role as organiser was, among other things, to represent members who work at the warehouse.  He was in this capacity “responsible for the ACT, western NSW and the Riverina”.

10. Hearne was clearly an officer of the Union at the time of the alleged conduct, within the particular meaning of that term under, and for the purposes of, Part XA.  He was an officer by virtue of holding the offices of elected organiser and National Council delegate. Furthermore it is clear, indeed from Hearne’s own testimony and that of his Union superior, Frank Belan, that he would act as a representative for the Union in that area and would become involved in issues that were drawn to his attention or that could not be resolved by the on-site Union delegates.  Indeed, the respondents eventually conceded that as an organiser and National Council delegate, Hearne was an officer of the Union, although they denied that he should be considered to have been acting in this capacity during this time.

    However, before any consideration of whether Hearne as an ‘officer’ was, during the particular events under consideration, acting in this capacity so as to make his conduct attributable, under section 298B(2), to the Union, it is necessary to determine whether the advice etc if acted upon would have injured Holloway in his employment or prejudicially altered his position in contravention of section 298K(1).

    Was there injury or prejudicial alteration of position in this case?

11. As explained previously, the nature of the particular employment is thus crucial.  In Linehan what was critical in establishing whether any injury or prejudicial alteration had occurred was the nature of the terms of the employee’s contract of employment.  All the attributes of the employment position must be examined.  It will primarily be by reference to the particulars of Holloway’s employment that it must be determined whether or not any action taken by Adecco pursuant to the incitement etc would or could have injured that employment or altered Holloway’s position in that employment to his prejudice.  I did not have the benefit of Holloway’s contract of employment, as the Advocate did not produce a copy of the signed employment agreement governing the terms of employees’ engagements to or with Adecco.  It is thus necessary to have regard to the evidence of witnesses as to the terms of Holloway’s contract of employment.  Routledge testified to the terms of employment of persons such as those in Holloway’s position, although she said that she was not particularly familiar with any of the particular details of Holloway’s own contract of employment.

12. Adecco is evidently an employment agency (it is evidently a constitutional corporation for the purpose of section 298G (1)(a)) which registers persons as available for work.  It appears that at the relevant time about 98% of the registrants were ‘casuals’, and only the other 2% were ‘permanent’ employees of Adecco.  At the time in question it appears that there were some 600 people registered with Adecco in the area for which Routledge was responsible, although only about 300 were employed, in the sense of contracted out to clients of Adecco, at any one time.  Those seeking work on a casual basis would register by signing a standard form agreement with Adecco which provided that the company could send the casual to any site where Adecco could find work, although the employee could refuse the offer of work.  The individual’s rate of pay was not fixed by Adecco upon their registration but would vary according to the particular client and the nature of the work being undertaken for the client.

13. Holloway began working for Adecco in December 1996.  When he registered he was, he said, willing or prepared to “do basically anything”.  Before being sent to the David’s Fyshwick site towards the end of January 1997, he had worked at other sites to which Adecco was contracted to send employees, having been a storeman at the “Revlon site”, a general labourer at the “Total Care site” for a very short period, and having also done some work as a driver for Adecco’s client, TNT.  The arrangement with David’s was that after suitable staff had been registered, they would be required to undertake an induction course or a test that David’s required the casuals to pass, whereafter they were placed in a ‘pool’ of casual employees able to work that site.  There were “ten or twelve” other persons registered with and employed by Adecco who were trained for, and cleared by the induction process to work at, the warehouse.  The system for these “ten or twelve” casuals was that, if wanting work, they would telephone the warehouse directly at 5.10 am on Monday and 6.10 am Tuesday to Friday, in order to find out whether there was suitable work for them on that day.  Roger Beiser was the Account Manager at Adecco responsible for the David’s account.  He gave evidence that there may have been more people seeking work at David’s than there was available work on any particular day.  If suitable work was available, whoever called in first would be given work.  It was only if work was not available at David’s, and they still wished to obtain work, that these employees would then ring Adecco to ascertain whether there was any other suitable work available.

14. The respondents argued that by virtue of the particular circumstances of his employment, had Adecco removed Holloway from David’s, there would have been no injury to him in his employment or alteration of his position to his prejudice.  They said that there was also no acceptable evidence that by working anywhere other than David’s, Holloway would have suffered any relevant loss or been injured or had his position prejudicially altered.  It was said that I must take into account “the totality of the employment conditions” and that the evidence which “demonstrates that he was willing to work anywhere and had worked as a general hand, a driver, and as a storeman for Adecco”.  The submission was then that “if Holloway was able to earn a similar amount or more by working as a driver or in any other employment which Adecco could arrange for him…. it cannot possibly be said that Hearne’s suggestion….could result in the necessary injury or alteration as required by section 298K”.  The respondents submitted that the terms of his employment show that the nature of Holloway’s employment was itinerant, and that he was not guaranteed any work at all in his contract, nor any work at a particular rate, as both availability and renumeration depended on the client.  Holloway himself did not give any evidence of any loss he might have suffered if he was not able to work at David’s but only at other sites. 

15. There was only indirect evidence of relative rates of pay for Adecco personnel at all the sites to which they could be sent, and for the types of work that Holloway was interested in and for which he was suited.  Various of the Advocate’s witnesses spoke to the favourable rates of pay available at David’s compared to rates paid at other Adecco-serviced sites.  This evidence was adduced with the object of showing how not being able to work at David’s would inevitably have been comparatively injurious to Holloway, since other available sites paid lower hourly rates to casuals.

16. The enterprise agreement peculiar to the warehouse was determinative of the pay rates, although it appears that Adecco paid the casual storemen that it sent to David’s “a couple of cents per hour more” than the hourly rate prescribed by the enterprise agreement.  Weekly time sheets for Adecco employees who worked at David’s were delivered to Adecco by David’s, and Adecco then paid the employees on the basis of those time sheets.  In argument the Advocate pointed to a body of oral and affidavit evidence of Adecco employees at supervisor or management level that suggested that being assigned to David’s meant that Holloway was in a position to earn the highest rate of pay of any of the sites that Adecco serviced.  For example, Beiser testified in his affidavit that David’s had the highest rates of pay of Adecco’s clients for storemen and packers in the ACT, so that “for the things that Daniel Holloway could do, he was getting the highest pay rate that he could get when he was working at David’s”.  Routledge related in her affidavit in reply that if Holloway had been removed from David’s, she would have tried to find him other work with another client of Adecco, but that the other work that Holloway “could possibly have been sent to at that time would have had a lower rate of pay than that which he was receiving at David’s”.  Holloway himself testified that the primary reason that he was originally interested in the David’s job was that it had “more hours and better pay, around $13 or $15 per hour, which is more than I was getting for other work I was then doing for [Adecco]”.  Other evidence was to similar effect.

1. It is useful in this respect to consider the decision of Justice Moore in Kelly, earlier referred to, where his Honour had to determine for which union the officer was acting when his conduct allegedly breached section 335 of the Industrial Relations Act 1988 by inciting etc a company to take action in relation to a certain employee. Not unlike Hearne, the officer concerned held two offices in the union, but it was argued that he was at the time acting as an officer of a State-registered union and not the federal union named as the respondent. His Honour held that the prosecutor had failed to make out his case in an essential element by not demonstrating that the officer was acting as an officer of the federally registered union and by not excluding the possibility that he was acting in another of his organisational capacities. At 132 his Honour noted that there was material supporting the federal union’s argument, including that the agreement relating to the site was arguably signed by the State and not the federal union, because it was signed as the named union with the words “New South Wales branch” which his Honour took to be suggestive of an agreement at State level. The relevance of this evidence tending to show that the officer may have been on the site in another capacity was said by his Honour to be that it provided a plausible reason why he was on the site, so that the mere fact that he was on the site was of “little probative value” in establishing that he was there in his capacity as an officer of the federal union. “On any view”, his Honour said, “he was plainly on the site in the capacity of a union official”. Having noted that there was no reason why a person could not have been acting in both capacities, his Honour held that the issue was whether it had been shown, in that case beyond reasonable doubt, that the officer was acting in the capacity as an officer of the federal union. At 135 his Honour held that:

   ……while there are matters the prosecutor has pointed to which are consistent with McArthur acting in his capacity as an officer of the defendant, none provides unambiguous evidence either directly nor inferentially, that it was in his capacity as [an officer of the defendant] that he attended at the city construction site and acted in the way he did. Moreover his presence on the site is capable of being explained on the basis that he was there in his capacity as an organiser of the [New South Wales State-registered union].

   His Honour expressly adopted a strict approach to the ambiguity on the basis that the effect of the section was to impute conduct to an organisation for the purposes of establishing criminal liability.  The union was therefore entitled to the benefit of the doubt that existed over the identity of the proper union notwithstanding the fact that, as his Honour observed, the distinction between State and Federal registered entities is at times artificial in appearance and somewhat of a “web of problems and technicalities”: at 136.  See also Moore v Doyle (1969) 15 FLR 59 at 123.

2. In the present matter, the Storeworkers-David’s Distribution Pty Limited Fyshwick ACT Enterprise Agreement 1996 (the agreement) was admitted in evidence as an annexure [“A”] to the affidavit of Anthony English.  The agreement is attached to a decision of the Australian Industrial Relations Commission dated 27 November 1995.  The only potentially helpful reference to the identity of the union that was party to the agreement appears in the first paragraph of the agreement.  This reads:

   THIS ENTERPRISE AGREEMENT made on the 20^th day of October One thousand nine hundred and ninety five between DAVIDS DISTRIBUTION PTY LIMITED and THE NATIONAL UNION OF WORKERS, NEW SOUTH WALES BRANCH, a registered Industrial Union of Employees hereinafter referred to as the “Union”.

   It was argued that the first respondent, the federally registered Union, was not a party to that agreement, instead that it was the State-registered union that obtained this agreement, being the “National Union of Workers, NSW Branch”.  Hearne was an elected organiser in the State-registered union as well as the federally registered Union.  Belan was “Branch Secretary of the NSW Branch of the NUW”, that is the federally registered union, and was also State Secretary of the State-registered union under the name “NUW NSW Branch”.  The agreement was signed by Belan, it was submitted, on behalf of the State-registered union, and not by the National Secretary of the federally registered NUW that is the respondent in this case.  No clarity on this matter was sought or obtained from Belan by either side when he appeared as a witness.  Moreover, the possibility that Hearne was acting in his capacity as an officer of the State-registered union was not referred to as such. 

3. The respondents argued that the agreement was clearly a document signed by Belan in his capacity as the secretary of the NSW registered union.  To my mind, however, the matter is not so clear at all.  Above Belan’s signature it is set out that the agreement is “signed for and on behalf of the National Union of Workers NSW Branch”.  It was said that the only place where the “NSW Branch” is registered as a union is in New South Wales, and that the State-registered union is the body generally referred to as the “National Union of Workers NSW Branch”, while the local branch of the federally registered union is referred to as “the NSW Branch of the National Union of Workers”. 

4. The union card that Jacobs was attempting to persuade Holloway to sign is an application for membership of both the federal and State-registered unions.  It is a two-sided card.  One side sets out that it is an application card for membership of the “National Union of Workers” below which is written in slightly smaller print “New South Wales Branch”.  Below this again is a descriptive sentence that says: “A State Industrial organisation of Employees registered pursuant to the Industrial Relations Act 1991 (N.S.W)”.  The reverse side shows that it is an application card for the “National Union of Workers”, below which there is a descriptive sentence that reads, “A Federal Organisation of Employees registered pursuant to the Industrial Relations Act 1988 (Commonwealth)”.  Both sides of the card carry the instruction “Please complete both sides”.  When he joined up, Holloway signed both sides of the card. 

5. The Advocate said that Holloway’s refusal was to join either union, although there is no indication that he perceived of any difference between the two.  I mention this because had Holloway objected to joining one but not the other, that might have pointed to the ‘hat’ that Hearne was wearing when he acted as he did upon this refusal.  Jacobs was hoping to persuade Holloway to sign the application card, which involved joining both the federal and State-registered entities.  Both Hearne and Jacobs wished Holloway to “join the Union”, which could have meant either.  The Advocate’s position was that the evidence, including Hearne’s affidavit, made clear that he would deal with David’s and the employees of David’s in his capacity as an organiser for the federal Union.  If this is so, it does not really matter that he may also have been acting in his capacity as an officer of the State-registered union and for its benefit when he sought to resolve the Holloway membership issue.  In other words, it was said that in so far as Holloway would not join the federally registered Union, Hearne’s actions were on behalf of and attributable to that Union. 

6. It may well be that the enterprise agreement was signed by Belan for and on behalf of the State-registered body.  On the other hand, although the agreement may tend to indicate, as it did in Kelly, the capacity in which the officer attended the site, it would be irrelevant which body was party to the agreement, so long as it could otherwise be established that Hearne was acting in his capacity as an officer of the federal Union when he allegedly breached the terms of the Act.  The criminal standard of proof is not operative here, as it was in Kelly.  It is thus for the Advocate to establish by evidence other than the agreement, on a balance of probabilities, that Hearne was acting in his capacity as an officer of the Union that is the named respondent.  The evidence shows that the apparent reason for Hearne’s attendance on the site, and his conversations with Routledge, did not arise out of or relate to the enterprise agreement as such, but to an issue of union membership and the ‘closed shop’ arrangement which was not part of the agreement.  That membership, when it was signed up for, was for both the federal and State-registered unions.  In addition, this dispute took place in the ACT and there was evidence that it was the function of the New South Wales-registered union to operate there.  In fact, the rules of the State-registered union which were in evidence do not purport to extend to the ACT at all, the only mention being where the transitional provisions for some amendments to the rules under rule 45 list the names of office holders whose positions would remain the same and where part of Hearne’s address in the ACT is given.  As stated at [63] the ACT was covered by the New South Wales Branch of the first respondent, the federally registered Union, under rule 37 of the Union’s rules.  As stated at [64] Hearne’s own evidence was that his involvement in ACT affairs arose from his position as an organiser for the federally registered body.  

7. Hearne’s presence on the site and his conversations might have had a State element, and the Advocate could have presented his case by alleging in the alternative that Hearne was acting for the State-registered body.  However, given that the membership issue was one that involved both bodies, I am persuaded that the Advocate has sufficiently discharged the onus of proof in this regard that the critical conversation arose from Hearne’s role as an official of the first respondent.   Having regard to the fact that different considerations apply than in Kelly, I do not think that the failure of the Advocate to further differentiate between the two Union bodies is significant. 

8. The Union next contended that even if Hearne is personally liable for breach of the relevant sections, and even if the Advocate is found to have sufficiently proved that the relevant conversation with Routledge was undertaken in his capacity as an officer of the first respondent, the Union still cannot be liable since Hearne was not acting under any instruction from the Union or his seniors in the Union structure, nor was he acting within the rules of the Union.  The Union pointed out that the Advocate had made no attempt to deal with the authority of Hearne to take the critical action, and presented no analysis of the Union rules in order to determine whether Hearne was acting within their terms.  Belan testified that at no time during the relevant period did Hearne seek his instructions on the course to be taken in relation to any dispute over membership, nor did Belan, as Branch Secretary, give any directions to Hearne or require that he take any action in relation to any dispute over membership.  Belan referred to the rules of the Union, in particular rule 71(18)(a) which provided that “all Branch organisers shall be under the direct supervision and control of the Branch Secretary”.  Likewise, rule 71(18)(d) provided that “the duties, functions and area and location of work of organisers shall be determined by the Branch Secretary”. 

9. It was said that under these rules Hearne did not have any authority to create a dispute over membership.  For present purposes that assertion may be accepted but the case was elsewhere argued by the respondents not on the basis that Hearne had instigated a dispute but that he was trying to resolve one that was not of his creation.  There is therefore no issue as to whether he had authority to create a dispute, because on the respondents’ own case, the dispute was created by others.

10. The effect of section 298B(2) is that if it is found that a Union officer was acting in an official capacity, the officer’s actions are taken to have been done by the union concerned. Hearne was an officer of the first respondent. Belan acknowledged that Hearne had the authority to assist workplace delegates in resolving matters that they were unable to resolve. From the evidence I think that he represented the Union in the Canberra region when matters of concern arose that could not be resolved by the Union delegates located in the workplace. It is clear on the evidence adduced from both sides that Hearne would deal with matters such as membership at David’s as the Union organiser.

11. In this case Hearne became involved after a non-union employee joined the workplace and refused to join both the Union and its state counterpart (although no differentiation between them was made at the time), and the local delegate was able neither to persuade him to do so nor to prevent the apparent escalation of ‘unfriendly’ feeling among the existing members towards Holloway because of his non-membership.  Hearne became involved in two ways.  He personally tried to persuade Holloway to join the Union, and he contacted the employer in circumstances that eventually led to the conversation that is the subject of inquiry.  It is significant that Hearne commenced involvement with the employer by saying to Routledge that he was from the “NUW”.  Again the ambiguity as to which body this refers to, if they are indeed distinct, is evident.  In fact Routledge said that the first contact that she had with Hearne involved words to the following effect:

    He said “Hello, I’m Peter Hearne of the NUW”.

12. The Advocate said that this remark further supports the fact that he was acting as a representative of the Union.  Holloway joined the Union.  Since the Union was the direct beneficiary of Hearne’s involvement in the matter, it is liable for the acts that he as an officer committed.  The Advocate argued that a union will be civilly liable for the acts of its officers that were committed in the course of their service for the benefit of the union: Taff ValeRailway v Amalgamated Society of Railway Servants [1901] AC 426 at 433; Giblanv National Amalgamated Labourers’ Union [1903] 2 KB 600 at 617, 620 and 625. It said that the effect of section 298B(2)(b) is to make unions liable where the officer’s conduct occurs in circumstances that would render the union liable if the conduct was a civil wrong.

13. The respondents said that this submission is contrary to “more relevant authority”, being the decision of Keely J in GTSFreight Management Pty Ltd v TWU (1990) 25 FCR 296. This was a case of contempt involving consideration of whether a union could be held liable by virtue of the conduct of an officer of one of its branches. The employer sought to rely on the rules of the union concerned to impute liability to it. The Court held that the rules of the union concerned did not provide a basis for the imputation of liability for contempt upon it. This case does not appear to have any bearing on the present case, as the Advocate did not rely upon the rules of the Union in order to impute liability. Instead, it relied on the statutory imputation of liability effected by section 298B of the Act, which may not necessarily be limited by what may or may not be contained in the rules of the particular union.

14. It is unlikely that section 298B(2) is limited to imputation for actions shown to have been done with express authority. In Employment Advocate v TWU & Others cited at [20], Justice Cooper, having considered the term “officer” as used in Part XA, said:

    The defining feature of s298B(2)(b) is that the officer or agent is acting in that capacity.  The definition excludes conduct not undertaken in the capacity of officer or agent.  The authority of an officer to act on behalf of and to bind the industrial association depends upon the extent of the authority which attaches to the particular office or agency.  However, within those limits, it is an authority to carry out the duties of the office or to carry into effect the terms of the agency.

    The respondents conceded that in using the term “authority”, his Honour was not necessarily saying that there were no instances where the conduct of the officer might be attributed to the union even though the ‘internal’ authority of the officer to act, under the rules of the union, was exceeded.  Without making any observation on whether and in what manner a special vicarious liability exists in these types of cases, I do not think that his Honour’s words could be taken to mean that in any situation where an officer has acted in a manner apparently within his authority the union of which he is an officer could escape liability under the Act simply by saying that he was not acting by the rules of the union when he acted.  Union rules are hardly likely to accommodate conduct that contravenes the law, but that does not mean that unlawful conduct can never be attributed to the union, as the Act clearly seeks to do.

15. Despite Belan’s evidence that he did not authorise Hearne to take any action at all in this matter, it is reasonably clear from the evidence that Hearne would generally deal with matters referred to him by the site delegate as an organiser for the Union.  The fact that he had done so in the past, and that he introduced himself as being an organiser of the Union, is evidence enough of the “extent of his authority”.  It is in this capacity that he visited David’s from time to time.  It is in this capacity that he sought to avert on-site problems by advising Adecco to move Holloway off-site.  This was a membership issue affecting all the members on site, and was therefore a Union issue of the type that Hearne was normally called in to handle once it had escalated beyond the ability of the on-site delegate to control.  No doubt if it had escalated further, Hearne would have notified Belan.  He was acting as an organiser when he advised etc Adecco, and part of the result of his involvement was that the employee concerned became a member of the Union. 

16. No doubt a union official could act so far beyond the rules and the ostensible authority or general capacity of his office, which is not limited to the rules, that it would be impossible to attribute his conduct to the union.  Moreover, the sections provide for penalties for conduct that is really only attributed conduct.  But all parties concerned, from Jacobs to Holloway to Routledge, to the other Adecco and David’s people he met and talked to about the dispute, dealt with Hearne during these events by treating him as an organiser of the Union.  He certainly spoke and acted in that way, and his activities, if not his methods, were, I think, part of his role as an organiser.  I conclude that the Union was responsible, and is thus liable, for the conduct of Hearne accordingly. 

    Conclusion

17. Section 298U(a) provides that the Court may, where it considers it appropriate, make an order imposing a penalty upon a person or persons found by their conduct to have contravened Part XA. While in the opening stages of argument the Advocate asked that, should the Court find against the respondents, it impose the maximum penalty available to it under the section, the parties have not yet really argued the issue of penalty for any contravening conduct found. In these circumstances it is appropriate to merely pronounce declaratory relief, that the respondents’ conduct of 27 January 1997 constituted a contravention of Part XA, and to require the parties to provide the Court with submissions as to the penalty to be imposed. I shall give directions accordingly.

I certify that the preceding one hundred and twenty-two (122) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marcus Einfeld AO.

Associate:

Dated:             29 May 2000

Counsel for the Applicant:	Mr J L Trew QC with Mr S Lloyd
Solicitor for the Applicant:	Australian Government Solicitor
Counsel for the Respondent:	Mr W Haylen QC
Solicitor for the Respondent:	Ryan Carlisle Thomas
Date of Hearing:	15-17 June 1999; 28 September 1999
Written Submissions completed:	24 September 1999
Date of Judgment:	29 May 2000