Hyde v Chrysler (Australia) Ltd

HYDE v. CHRYSLER (AUSTRALIA) LTD. (1977) 30 FLR 318
Conciliation and Arbitration

COURT

FEDERAL COURT OF AUSTRALIA

INDUSTRIAL DIVISION
Northrop J.(1)

CATCHWORDS

Conciliation and Arbitration - Offence - Dismissal by reason of membership of registered organization - Prosecution by dismissed shop steward - Fact of dismissal proved - Onus of proving reason for dismissal - Retrenchment of redundant employees - Right to dismiss (troublemaker" - Whether shop stewards have any immunity from dismissal - Conciliation and Arbitration Act 1904-1976, s. 5 (1) (a), (f).

HEADNOTE

Section 5 of the Conciliation and Arbitration Act 1904 provides, in part, as follows:

"(1) An employer shall not dismiss an employee . . . by reason of the circumstances that the employee -

(a) is . . . or proposes . . . to become an officer, delegate or member of an organization . . . or . . .

(f) being an officer, delegate or member of an organization, has done, or proposes to do, an act or thing which is lawful for the purpose of furthering or protecting the industrial interests of the organization or its members, being an act or thing done within the limits of authority expressly conferred on him by the organization in accordance with the rules of the organization. . . .

"(4) In any proceeding for an offence against this section, if all the facts and circumstances constituting the offence, other than the reason for the defendant's action, are proved it shall lie upon the defendant to prove that he was not actuated by the reason alleged in the charge.

"(5) Where an employer has been convicted of an offence against this section the Court by which the employer is convicted may order that the employee be re-imbursed any wages lost by him and may also direct that the employee be re-instated in his old position or in a similar position."

Held: (1) The defendant was entitled to dismiss employees considered by it to be troublemakers or potential troublemakers.

(2) The fact that an employee coming within that category was a shop steward did not, by reason of the circumstances that he was a delegate of an organization, confer on that employee an immunity from dismissal.

HEARING

Adelaide, 1977, November 1-3, 7, 28. #DATE 28:11:1977

INFORMATION.

A member, and shop steward, of an organization of employees registered under the Conciliation and Arbitration Act 1904-1976, prosecuted an employer for offences against s. 5 (1) (a) and (f) of the Act in dismissing him for being a delegate, member and prospective officer of an organization, and for doing an act which was lawful for the purposes of furthering or protecting the industrial interests of the organization or its members.

B. R. M. Hayes and A. J. Regan, for the informant.

A. V. Russell, for the defendant.

Cur. adv. vult.

Solicitors for the informant: Playford Nicolle Burr and Ackland.

Solicitors for the defendant: Ross McCarthy and Nosworthy.

(Reported by J. F. E. Turner Esq., Barrister-at-Law.)

JUDGE1

November 28.

The following judgment was delivered.

NORTHROP J. Chrysler (Australia) Ltd. (hereinafter called "the company") is engaged in the industry of manufacturing motor vehicles in South Australia at its plants at Tonsley Part and at Lonsdale. Owing to a decline in the demand for its motor vehicles and the increasing stockpile of completed motor vehicles awaiting sale, the management of the company, during the first half of the year 1977, resolved to reduce the number of vehicles being completed each day by extending and slowing the assembly line. As a result a smaller number of employees was required to man the assembly line. In addition, a new model of the Galant motor car, called the Sigma, was being introduced and because of its construction design a smaller number of employees would be required to man the assembly line. Originally the management hoped that these changes would not lead to retrenchment of any employees and that the reduction in numbers of employees would be achieved by natural attrition, that is by the non-replacement of employees ceasing their employment by reason of retirement or resignation. The normal rate of turnover of employees fell dramatically during this period and by June 1977 the management decided that they would need to retrench a large number of employees as well as encourage forms of early retirement. (at p319)

During the months of June and July 1977 the management of the company met with officers of organizations of employees which had members employed by the company. The major organization concerned was the Vehicle Builders Employees' Federation of Australia (hereinafter called "the V.B.U."). The meetings were with both federal officers of the V.B.U. and with officers of the South Australian branch of the V.B.U. The purpose of the meetings was to discuss the proposed retrenchments. An existing agreement between the company and the V.B.U. known as the "Severance Payment Agreement - Wages Employees" made provision for the termination of employment of employees arising from redundancy which, for the purposes of the agreement, was defined as: "A situation arising out of the work available being reduced and resulting in a number of employees having to be terminated, as they are in excess of the total number deemed by the company to be necessary for the performance of the available work." (at p319)
Clause 4 of the agreement was as follows: "Employees to be retrenched. Employees to be retrenched shall be determined, all other things being equal, on a last-on first-off basis from the departments or sections where reductions have to be made. The determining of such departments or sections shall be at the discretion of the company". (at p320)
As a result of these meetings it was agreed between the management of the company and the officers of the V.B.U. that owing to the large number of retrenchments to be effected, it would be fairer to all employees if the principle of "last-on, first-off" was applied on a plant wide basis instead of on a department or section basis. It was agreed also that the V.B.U. would call a mass meeting of employees at each of the Tonsley Park and Lonsdale plants to allow the employees concerned to express an opinion on two alternatives, namely whether to agree to a proposal that all employees work on a four-day week for four days' pay resulting in some 300 employees at the Tonsley Park plant being retrenched, or to continue working a five-day week for five days' pay resulting in some 700 employees at the Tonsley Park plant being retrenched. Mass meetings of the employees took place on 12th July, 1977. The meeting at the Lonsdale plant agreed to adopt the four-day week as a result of which there were no retrenchments at that plant. The meeting at the Tonsley Park plant ended in disorder and with a degree of violence. Further reference will be made to the facts of that meeting and what occurred immediately thereafter. (at p320)
On the afternoon of Friday, 15th July, 1977, each employee of the company at its Tonsley Park plant was handed an envelope. There were some 3,000 to 4,000 employees involved. Some 650 of the envelopes each contained a notice of termination of employment and contained the appropriate sum of money representing payment of wages, payment in lieu of notice, payments in lieu of leave due and severance payment, all payments being computed in accordance with the provisions of the Severance Payment Agreement. The notice of termination of employment did not state a reason for the termination. The remainder of the envelopes contained an authority to the recipient to be produced by him in order to gain admission to the plant when he attended for work on the following Monday morning. It is noted that some fifty employees agreed to accept an early retirement package deal and ceased employment some two to three weeks later. Some 700 employees were either retrenched or agreed to early retirement. (at p320)
The informant, Jefferson Hyde, was an employee of the company employed on the assembly line of the body build shop on the drill line section of the Tonsley Park plant. The envelope handed to him on 15th July, 1977, contained a notice of termination of employment. His employment was thereby terminated. Other employees within his section who had been engaged as employees of the company subsequent to the engagement of the informant, did not receive a notice of termination of employment. In other words the principle of "last-on, first-off" did not operate with respect to the retrenchment of the informant. On 10th August, 1977, the informant laid an information for an offence which, as amended at the hearing, charged that the company: ". . . on or about 15th July, 1977, at Tonsley Park in the said State, the defendant, Chrysler (Australia) Ltd., being an employer of the informant contrary to the provisions of s. 5 (1) (a) and (f) of the Conciliation and Arbitration Act 1904 as amended, dismissed an employee, namely the informant, by reason of the circumstances that the employee: (1) was a delegate and member of an organization as defined in the Conciliation and Arbitration Act namely the Vehicle Builders Employees' Federation, and the South Australian branch thereof; (2) was proposing to become an officer in the said Vehicle Builders Employees' Federation, namely a member of the executive of the South Australian branch of the said Vehicle Builders Employees' Federation in that he was on 15th July, 1977, a nominated candidate in an election for the executive of the South Australian branch of the said Vehicle Builders Employees' Federation; (3) being a delegate and member of an organization did an act or thing which was lawful for the purpose of furthering or protecting the industrial interests of the said organization or its members, being an act or thing done within the limits of authority expressly conferred on him by the organization in accordance with the rules of the organization". (at p321)
The relevant provisions of s. 5 of the Conciliation and Arbitration Act 1904 (hereinafter called "the Act") are as follows:

"5 (1) An employer shall not dismiss an employee . . . by reason of the circumstances that the employee -

(a) is . . . or proposes . . . to become, an officer, delegate or member of an organization . . . or . . .

(f) being an officer, delegate or member of an organization, has done, or proposes to do, an act or thing which is lawful for the purpose of furthering or protecting the industrial interests of the organization or its members, being an act or thing done within the limits of authority expressly conferred on him by the organization in accordance with the rules of the organization.

Penalty: Four hundred dollars.

"(4) In any proceeding for an offence against this section, if all the facts and circumstances constituting the offence, other than the reason for the defendant's action, are proved it shall lie upon the defendant to prove that he was not actuated by the reason alleged in the charge.

"(5) Where an employer has been convicted of an offence against this section the Court by which the employer is convicted may order that the employee be reimbursed any wages lost by him and may also direct that the employee be reinstated in his old position or in a similar position." (at p321)
At the hearing, Mr. Russell, who appeared for the company, entered a plea of not guilty on behalf of the company and made the following admissions, namely that the company was an incorporated body and was engaged in the industry of manufacturing motor vehicles at Tonsley Park, that the V.B.U. was an organization of employees registered under the Act, that at all material times the informant was an employee of the company which on 15th July, 1977, dismissed him from its employment, that at all material times the informant was a member of the V.B.U. and of the South Australian branch of the V.B.U. and was a shop steward at the Tonsley Park plant and that at the time of his dismissal from employment the company had in its employment in the said department several employees who had less service with the company than the informant and whose services were not terminated. The informant gave evidence. The company called four witnesses namely its managing director and chairman, Mr. Thorvold Anderson, its personnel manager, Mr. David Tamblyn, its general operations manager, Mr. Graham Spurling, and its manager of labour relations and employment, Mr. Brian Cahill. The evidence given by the informant generally related to matters different to those the subject of evidence given by the other four witnesses. I formed the opinion that each witness gave evidence to the best of his recollection and did not deliberately attempt to mislead the court. In some aspects the evidence of Mr. Tamblyn was at variance with the evidence of Mr. Anderson and Mr. Spurling but where this occurred I accepted the evidence of Mr. Anderson and Mr. Spurling. This variance in the evidence does not affect my findings on the relevant facts. In addition to the facts already set out I make the following findings of fact. The company's plants are closed shops. An agreement between the company and the V.B.U. requires all employees of the company who are eligible for membership of the V.B.U. and come within the award obtained by the V.B.U. to become and to remain members of the V.B.U. while they are employed by the company. The relevant award is the Chrysler (Australia) Limited (Vehicle Industry and Air-Conditioning) Manufacturing Award 1976 (hereinafter called "the award") but the provisions of that award are not before me. The company deducts union dues from the wages of its employees and pays those dues to the V.B.U. Rule 17A of the rules of the South Australian branch of the V.B.U. provide for the election of shop stewards and is as follows:

"17A. - SHOP STEWARDS (at p322)
Shop stewards will be elected bi-annually in all shops and factories. Members in any shop or factory may nominate any member who is financial and complies with federal r. 29 for election. If there are more nominations than there are vacancies the position will be decided by a simple majority vote of members in that shop or factory. Elections to take place no later than the date of the general meeting in September. The first such election to take place in 1966. In the event of a shop steward resigning or leaving the shop he must notify the secretary promptly. The same to be dealt with immediately. He shall collect all subscriptions, fines, levies, etc. due to the federation, enter them in his cash book and pay same to the general or assistant secretary at least once a fortnight or as requested. He shall be paid ten cents per annum and be allowed commission on all moneys collected, the percentage to be fixed at the annual meeting, the same to be paid quarterly. (at p323)
"He shall furnish the general secretary with the names and addresses of all employees in the shop, report the arrival and departure of all employees. He shall interview new employees to try and induce them to become members of the federation. He shall be the medium of communication between the members in his shop and the federation. Stewards and members are requested to transact all their business during lunch time. Shop stewards may sign or initial pence cards. (at p323)
"After the first meeting night in each quarter they shall collect all members' pence cards and leave same at office for audit. The branch may by resolution call on shop stewards to give such security as may be deemed necessary. When a vacancy occurs the executive may, if they think advisable, instruct the secretary to meet the position." (at p323)
Having regard to the closed shop agreement between the company and the V.B.U., many of the functions of a shop steward appear to be redundant. I do not know if the award confers any additional authority on shop stewards in the sense of making them accredited representatives of the V.B.U., cf. Cuevas v. Freeman Motors Ltd. (1975) 25 FLR 67, at p 73 , but for the purposes of this decision I am prepared to find that shop stewards at the company's Tonsley Park plant are delegates to the V.B.U. within the meaning of the word "delegate" contained in s. 5 of the Act. (at p323)
The informant was elected a shop steward in November 1976 and as such "represented" some fifty to sixty members of the V.B.U., the exact number depending upon the rate of production. The informant was an "active" shop steward but no more "active" than some other shop stewards. In some cases he acted beyond his area of responsibility and he did not always comply with the grievance procedures laid down in the agreement between the V.B.U. and the company. In other cases he refused to follow official V.B.U. decisions, one instance being with respect to the dismissal of an employee, a Mr. Larizza. Because of his activities on the shop floor, it is fair to say that he was considered by Mr. Cahill as a thorn in the side of the company but there is no evidence to suggest that the activities which gave rise to this view were activities which were lawful for the purpose of furthering or protecting the industrial interests of the V.B.U. or its members being activities done within the limits of authority expressly conferred on the informant by the V.B.U. in accordance with its rules. Each of the witnesses called on behalf of the company either knew or knew of the informant. In at least one instance each witness considered the informant had acted responsibly and effectively, namely in the dispute between a Mr. Gillette, a member of the V.B.U. within the informant's section, and a supervisor, a member of another organization. Nevertheless the informant was considered by management to be either a troublemaker, a potential troublemaker or a fermenter of trouble. The informant had nominated for an office in the State branch of the V.B.U., the election for which was to take place in August 1977, but the management of the company did not know of this fact. (at p324)
From time to time a newsletter headed "Rank & File News" or "Rank & File Newsletter" was distributed within the company's Tonsley Park plant. The newsletter did not state who authorized its publication and distribution or by whom it was printed. It was not printed or distributed by the V.B.U. It was extremely critical of the company and the V.B.U. and it advocated direct action and disruptive activities designed to harm the company and weaken the position of the V.B.U. The phrase "rank and file" is commonly used to describe the common people as distinct from those having power or authority and in this respect the phrase would be apt to describe all production workers who had no supervising duties. The management of the company does not know if there is an association of persons called "Rank & File" but within its Tonsley Park plant persons who are believed to be active supporters of the views expressed in the newsletter are referred to as being members or supporters or sympathizers of "Rank & File". The management believes that the newsletter has ties with the Workers Student Alliance for Australian Independence and many of the views expressed in the newsletter are views held by members of the Workers Student Alliance. The informant is, and at all material times was, a member of the Workers Student Alliance and he knew that he was considered by other employees at the company's Tonsley Park plant to be a member or supporter of "Rank & File". On occasions he assisted in the distribution of the newsletter. He certainly supported the bulk of the views contained in the newsletter. Mr. Anderson, who took up his position and duties in Australia in November 1976, referred to this amorphous group as the Workers Student Alliance in order to avoid confusion arising from the use of the phrase "rank and file". Mr. Tamblyn referred to the group as "Rank & File", the generally accepted description. Mr. Spurling referred to the group as "anarchists". The management believed that members and supporters of this group were active in attempting to disrupt production by unnecessary stoppages of the assembly line, by acts of sabotage having the effect of stopping the assembly line or by acts of vandalism. These beliefs could not be proved and there was no evidence of any person being caught in the act of sabotage or vandalism. If caught, the employee would have faced the probability of instant dismissal. (at p325)

Messrs. Anderson, Tamblyn and Spurling, together with the company's two deputy managing directors, Messrs. Webber and Bivans, met regularly to discuss and decide top management policy. A matter would be discussed and a consensus obtained but Mr. Anderson made the final decision. In this manner, management had made the decisions concerning the reduction in motor vehicle production. During the early months of the year 1977, management considered the question of the desirability of dismissing employees considered to be members of "Rank & File" because of their disruptive activities but no decision was taken and as described by Mr. Spurling, the matter "was put on a back boiler, so to speak, because of the fact of this policy", that is the principle of "last-on, first-off" retrenchment. (at p325)
Following the decision of management for the need to retrench employees, meeting were held with officers of the organizations concerned, including the V.B.U., at which the redundancy situation was explained and ways and means of solving the problem were discussed. Agreement was reached that any retrenchment should be on the principle of "last-on, first-off" across the whole of the plant and not on a departmental basis and that the V.B.U. would hold a mass meeting of employees to obtain an opinion on the two alternative methods of retrenchment already referred to. At this time it was planned that the retrenchments would be effected on 22nd July. (at p325)
On the morning of 12th July, 1977, a newsletter, being "Rank & File News No. 188 12th July, 1977" was distributed among employees at the Tonsley Park plant. It was critical of the action proposed by the company. Extracts from the newsletter are set out:

"Make the rich pay.< (at p325)
Today there is a mass meeting for Chrysler workers. As we all know, this is long overdue. But the V.B.U. executive have only called this meeting because they have been ordered to do so by Chryslers. Chryslers have admitted that they have overproduced. Yank boss Anderson, and his friends, want workers to pay for the crisis of overproduction. They go to great lengths to tell us that car sales are down, they are running at a loss, that they cannot carry workers any longer." (at p325)
"What can we do about it? (at p325)
We must stop the multinationals from grinding us into the dirt and then kicking us out the gate. No worker male or female, young or old, single or married can afford to lose their jobs. Unemployment is higher than ever. No worker can afford a $28 wage cut per week. It is hard enough living on full pay.

(1) Complete opposition to sackings - any worker prepared to go on a four-day week with three hundred sacked should also be prepared to be one of the three hundred sacked.

(2) We must be prepared to take action to stop Chrysler from sacking us. Chrysler try to give us the impression that they are very strong, but in fact they are weak. This can be seen by the way they are relying on the union to help them out with this problem.

(3) We can ban the new model Galant. We believe Chrysler need to make this model more than they need to sack workers. They are more afraid of losing a big profit from the new Galant, than gaining a small amount by standing us down.

(4) Its their stockpile which is causing the sackings. If we ban the stockpile then their and our problem is solved. (at p326)
Although all this is easy to say, it is hard to do but it is absolutely necessary if we are going to stop Chrysler from sacking us or lowering our wages. If workers are prepared to support any action it is also necessary to form an action committee from workers who want action. This must be done at the mass meeting. (at p326)
If the company do sack workers, we must stop work immediately and hold an immediate mass meeting between the main canteen and the plant."

"Long service leave and early retirement. (at p326)
After the struggle and sellout at G.M.H. earlier this year, the V.B.U. executive are trying to push in our minds at Chryslers the same idea - Take your long service leave and save your job. It is often said in Trades Hall, 'Every person for themselves'. They seem to forget that workers stand up for each other. If they ask or tell workers to take long service leave, R & F believes everybody should know what and how this leave was gained."

"Company and union schemes aimed to split us. (at p326)
What has been one major result of the schemes for early retirement, long service leave after ten years, etc.? To divide workers. The union and the company have tried to set young workers against old, and those with little service against those with a lot of service with Chrysler. (at p326)
They have said there will be more sackings (last-on, first-off) if old workers do not take pro rata long service leave or retire early. So young workers will think if those old buggers do not take their leave or retire, I'll be sacked. Really it is the company's fault if anyone is sacked. But as usual their policy is divide and rule. When we unite we will be much stronger than Chrysler and their lackeys."

"If we are united we can win. (at p326)
The union officials are bound to tell us that there is nothing very much that workers can do to prevent sackings. That it is workers who must back down in some way. However, since Chrysler announced that they wanted to sack workers, some Italian workers have told Rank & File of the experience of workers in Italy. (at p327)
They can tell you about the huge Fiat plant in Turin in northern Italy which employs 180,000 workers. A few years ago Fiat decided to sack 50,000 workers from this plant. When the dismissal notices were issued workers were organized for it. They told Fiat that if they did not re-employ the sacked workers then their huge stockpile of finished cars would be smashed up and the Fiat bosses themselves would be beaten up. To back up their threat many workers brought clubs and sticks to work. Armed riot police were brought in to control the workers, but many of them were beaten up. To cut a long story short, after a week of talks the company caved in and the 50,000 workers were brought back to work. If we unite we can do anything]" (at p327)
The mass meeting of the employees at Tonsley Park was held on the morning of 12th July. About 3,000 employees attended. The meeting was chaired by the president of the South Australian branch of the V.B.U., a Mr. Walker. The meeting resolved to retain a five-day week and to reject any retrenchments and in order to achieve this to place a ban on the new Sigma model and on the stockpile of cars awaiting sale. The informant spoke in support of that resolution. The meeting closed in uproar. There were scuffles and violence. Mr. Walker had his spectacles broken. An officer of the V.B.U., a Mr. DeRon received injuries requiring medical treatment. Following the meeting, Mr. Tamblyn and Mr. Cahill met with officers of the V.B.U. The officers of the V.B.U. claimed that members of "Rank & File" had caused the violence and suggested that the company ought to sack "Rank & File" members in any retrenchment. Subsequently there was a brief meeting of management which Mr. Cahill attended. Mr. Tamblyn reported on the mass meeting and the suggestion by the officers of the V.B.U. and raised the issue of whether, as part of the retrenchment proposal, members of "Rank & File" should be dismissed. No decision was taken. The mass meeting of employees at the Lonsdale Plant occurred later that day. Subsequently another meeting of management was held at which Mr. Cahill attended. A consensus was reached and Mr. Anderson directed that because of the way the morning meeting had developed and the assaults on the union officers, the retrenchment of some 650 employees should be brought forward from 22nd July to 15th July and that included in the retrenchment should be all persons who could be identified as "Rank & File" members, supporters or sympathizers irrespective of their length of service, and that the balance of the retrenchments should be on the principle of "last-on, first off". Mr. Tamblyn then instructed Mr. Cahill to speak to the people who worked in the labour relations department and the security department within the plant and to prepare a list of "Rank & File" members and supporters and to ensure that no mistakes were made. Mr. Tamblyn later phoned the secretary of the South Australian branch of the V.B.U. and told him of this decision and said that he, the secretary, might be asked to supply names of "Rank & File" members. Mr. Cahill sought names from the officers of the company specified by Mr. Tamblyn. In addition an organizer of the South Australian branch of the V.B.U. came to Mr. Cahill's office and gave him the names of some seven employees he believed to be members or supporters of "Rank & File". The informant was one of the employees so named. Mr. Cahill prepared a list of named employees and checked those names with the superintendents in the plant to ensure that names were not included wrongly. Twenty-eight names were included in the list. The informant was one of the employees whose name was so included. Of the twenty-eight named employees seventeen, of whom the informant was one, would not have been retrenched on the principle of "last-on, first-off" while the other eleven would have been so retrenched. These twenty-eight employees were the first to receive notices of dismissal from the employment of the company. Prior to the compilation of the list, Mr. Cahill considered the informant to be a member of "Rank & File". The V.B.U. has made no complaint to the company that any employee included in the list of twenty-eight employees was dismissed wrongly or unfairly. (at p328)
None of the witnesses called on behalf of the company asked or directed that the informant be included in the list of employees to be dismissed. Mr. Cahill stated that the informant was dismissed because he was believed to be a supporter of "Rank & File". Each witness called on behalf of the company specifically denied that the informant had been dismissed by reason of any of the circumstances set out in the information. (at p328)
In Heidt v. Chrysler (Australia) Ltd. (1976) 26 FLR 257, at pp 266-268 I expressed views on the nature and effect of s. 5 of the Act. Since then the High Court has delivered its judgment in General Motors-Holden's Pty. Ltd. v. Bowling (1976) 51 ALJR 235 , but nothing that was said in Heidt's case was inconsistent with the reasoning in Bowling's case. In that case all the judges accepted the principle that s. 5 of the Act was designed to protect organizations registered under the Act and to protect officers, delegates or members of such organizations from discrimination and victimization by reason of the circumstances of their being officers, delegates or members. Barwick C.J. said: "The purpose of s. 5 (1) is, to my mind, both limited and obvious, namely, to ensure that members of the organization are not discouraged from accepting office in the organization by the possibility of their employment being terminated because they have become officers of the organization or by reason of the lawful exercise of the authority of such an officer. Section 5 (1) generally, but particularly sub-s. (1) (a) and (f), is enacted for the protection of the organization. Section 5 (1) (a) and (f) are designed to prevent the organization being denied the services of its officers. They are not designed to afford a protection to the employee for his activities which fall outside his authority as an officer of the organization. No doubt on this view the section is of very limited operation: in my opinion, it was so intended, as I think its language indicates" (1976) 51 ALJR, at p 237 . Mason J., with whose reasons Gibbs, Stephen and Jacobs JJ. agreed, said: "The two subsections (s. 5 (1) and (4)) are, broadly speaking, designed to protect an officer, delegate or member of an organization against discrimination by his employer" (1976) 51 ALJR, at p 240 . After referring to the dissenting judgment of Isaccs J. in Pearce v. W. D. Peacock and Co. Ltd. (1917) 23 CLR 199, at p 205 his Honour continued: "The protection of trade unions and their representatives from discrimination and victimization by employers does not require an interpretation as extreme as that favoured by Isaacs J. It would unduly and unfairly inhibit the dismissal of a union representative in circumstances where other employees would be dismissed and thereby confer on the union representative an advantage not enjoyed by other workers, to penalize a dismissal merely because the prohibited factor entered into the employer's reasons for dismissal though it was not a substantial and operative factor in those reasons" (1976) 51 ALJR, at p 241 . Mason J. also conceded the distinction between the provisions of s. 5 (1) (a) and s. 5 (1) (f) of the Act (1976) 51 ALJR, at p 242 . Gibbs J. gave a special warning when he said: "However, it would in my opinion be wrong to think that there is any special difficulty in the way of an employer who seeks to prove that in dismissing an employee he was not actuated by the fact that the employee was a shop steward or other delegate of an organization. The onus of proving that the fact that the employee held the position was not a substantial and operative factor in the dismissal is to be discharged according to the balance of probabilities and is not to be made heavier by any presumption that if an employee who is dismissed for disruptive activities happens to be a shop steward the latter circumstance must have had something to do with his dismissal. If in the present case evidence had been given by the directors responsible that the employee was dismissed because he was guilty of misconduct or because his work was unsatisfactory, and that in dismissing him they were not influenced by the fact that he was a shop steward or indeed that he was dismissed in spite of that fact, and that evidence had been accepted, the onus would have been discharged" (1976) 51 ALJR, at p 239 . (at p330)
Mr. Hayes, who appeared for the informant, argued that on the facts of the present case I should not accept the denial of the witnesses called on behalf of the company. He argued that an active and effective shop steward must, of necessity, be considered by management to be a troublemaker or a potential troublemaker. He referred to what was said by Smithers and Evatt JJ. in Cuevas v. Freeman Motors Ltd.:

"It is to be observed that s. 5 (1) of the Conciliation and Arbitration Act provides that the employer may not dismiss an employee by reason of the circumstance that he is a shop steward and, as such, an officer or delegate. It does not purport to prevent dismissal of a shop steward if he, being a shop steward, indulges in conduct in that capacity to which the employer objects, unless it is conduct specified in s. 5 (1) (f). With that exception the prohibition extends only to action taken by the employer by reference to the fact that the employee holds the position of a shop steward. There are, of course, active shop stewards and passive shop stewards. It is apparent that an active shop steward may be responsible for recurring incidents irritating to management and creating in the mind of the employer a desire to be rid of the employee because although otherwise he may be a satisfactory workman, nevertheless as a shop steward his capacity for stirring up what the employer regards as trouble is to the employer quite intolerable.

"If, in such a case, the employer dismisses the employee not because of any particular item of conduct but because of his propensity as such to stir up such trouble then, in our opinion, the dismissal must be characterized as a dismissal arising by reason of the circumstance that the employee is a shop steward. In a sense such a dismissal arises out of past conduct as a shop steward, but it is more than that. It is a dismissal to escape trouble arising from conduct and situations likely to arise in the future out of the circumstance that and because the particular employee holds the position of shop steward" (1975) 25 FLR, at pp 78-79 . (at p330)
He referred also to what was said by Mason J. in Bowling's case: "Once it is said that the appellant dismissed him because he was deliberately disrupting production and was setting a bad example it is not easy to say without more that this had nothing to do with his being a shop steward. Although the activities in question did not fall within his responsibilities as a shop steward his office gave him a status in the work force and a capacity to lead or influence other employees, a circumstance of which the appellant could not have been unaware. It would be mere surmise or speculation, unsupported by evidence, to suppose that the appellant's management, if concerned as to the bad example he was setting, divorced that consideration from the circumstance that he was a shop steward" (1976) 51 ALJR, at p 241 . His Honour then continued "The appellant sought to give emphasis to the distinction to be drawn between s. 5 (1) (a) and s. 5 (1) (f) and argued that the activities of a shop steward fall under par. (f) and not par. (a). So much may be conceded, but this does not avail the appellant in the present case because we are concerned not with activities undertaken by the respondent in his capacity as a shop steward but with activities otherwise undertaken and the example that he set to others in which his position as a shop steward was of particular significance" (1976) 51 ALJR, at p 242 . (at p331)
Mr. Hayes then argued that the facts and circumstances leading up to the dismissal of the informant were inconsistent with the denial and accordingly the denial should be rejected particularly having regard to the fact that "Rank & File" was not an identified or identifiable group and that there was not sufficient evidence to show that the informant was a member or supporter of that amorphous group and that in reality the company dismissed the informant because it was thought he was a troublemaker or potential troublemaker arising from his activities as an active and efficient shop steward. Accordingly Mr. Hayes argued that the company had not satisfied the shifting onus cast upon it by s. 5 (4) of the Act. (at p331)
I do not accept these arguments. The facts in Cuevas v. Freeman Motors Ltd. (1975) 25 FLR 67 are very different. There the employer did not conduct a "closed shop" and was opposed to the concept of organizations and shop stewards. In the present case the company conducts a "closed shop", is not anti-organization and has no history of dismissing shop stewards and in fact is not opposed to shop stewards. Further the informant was included in the list not at the direction of any of the senior management of the company but by the method described and, in my opinion, his inclusion had nothing to do with the fact that the informant was a shop steward. (at p331)
In Bowling's case (1976) 51 ALJR 235 the facts again were very different. There one employee only was dismissed. The two directors of the defendant who made the final decision to dismiss Mr. Bowling were not called to give evidence and the trial court had not accepted the stated reason for dismissal given by other officers of the defendant. That finding could not be disturbed. Further there was no evidence sufficient to make a finding that Mr. Bowling had been dismissed without regard at all to his position as a shop steward. Because of the findings of fact by the trial court and in the light of s. 5 (4) of the Act, Mason J. considered whether the evidence was consistent with the hypothesis that the defendant was actuated by the circumstance that Mr. Bowling was a shop steward. His Honour said: "We are left, then, with a reason for the dismissal which does not exclude the possibility that it was associated with the circumstance that the respondent was a shop steward. If this was no more than a slender possibility the circumstance might be discarded as one which was not a substantial and operative factor in the dismissal. However, I have already said enough to indicate why the possibility cannot be so regarded - the respondent's office as a shop steward endowed him with a special capacity to influence others and was therefore not easily dissociated from his ability to set an example to others" (1976) 51 ALJR, at p 242 . (at p332)

In the present case, I accept the evidence of the witnesses called on behalf of the company denying that the informant was dismissed by reason of the circumstances alleged in the information. That denial is consistent with all the facts as found. A redundancy situation existed. All employees of the company had to be members of an organization and where dismissals took place of necessity those dismissed were members of an organization. There was an agreement between the V.B.U. and the company that in a redundancy situation the principle of "last-on, first-off" would apply but the V.B.U. has not objected to a variation of that principle which resulted in the dismissal of the informant. Acting with the tacit agreement of the V.B.U. the company dismissed employees believed to be members or supporters of "Rank & File". Management of the company believed that members and supporters of that group were troublemakers or potential troublemakers. The company was entitled to dismiss employees who came within this category. The fact that an employee who came within this category happened to be a shop steward thus possibly having a greater potential to be a troublemaker, does not confer on that employee an immunity from dismissal by reason of the circumstance that he is a delegate of an organization. The evidence given on behalf of the company is accepted and therefore it is not necessary to consider whether the evidence, apart from the evidence of the denial and the evidence of the reason for dismissal of the informant, is consistent with the hypothesis that the company was actuated by the circumstances alleged in the information. The shifting onus imposed by s. 5 (4) of the Act has been discharged. Accordingly the information must be dismissed. (at p332)

ORDER

Order accordingly.

[1977] FCA 87

28 NOVEMBER 1977