Kerrin, D. v Leighton Contractors Pty Ltd - [1986] FCA 330

Re: DAVID KERRIN
And: LEIGHTON CONTRACTORS PTY. LTD.
No. V7 of 1986
Industrial Law
16 IR 40

COURT

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIAN DISTRICT REGISTRY
INDUSTRIAL DIVISION
Keely J.

CATCHWORDS

Industrial Law - information for offence - dismissal of employee member of registered organization - linked to industry wide dismissal of all members to counter industrial campaign by union - whether dismissal "by reason of the circumstance" that employee was union member - discretionary power to order reinstatement - whether good reason not to order reinstatement.

Conciliation and Arbitration Act 1904 ss. 5(1), 5(4), 5(5)

BLF (Cancellation of Registration) Act 1986

BLF (Cancellation of Registration - Consequential Provisions) Act 1986

Acts Interpretation Act s. 15AB

BLF (De-recognition) Act 1985 (Vic.)

Bowling v GMH (1980) 33 ALR 297

Bowling v GMH (1980) 42 FLR 309

Slonim v Fellows (1984) 154 CLR 505

HEARING

MELBOURNE

#DATE 24:7:1986

ORDER

1. Leighton Contractors Pty. Ltd. is convicted of dismissing David Kerrin on 18 February 1986 by reason of the circumstance that he was a member of the Australian Building Construction Employees and Builders Labourers Federation.

2. Leighton Contractors Pty. Ltd. shall pay a penalty of $100.00.

3. The prosecutor, David Kerrin, be reinstated in his old position or in a similar position within seven days from the making of this order.

(Settlement and Entry of Orders is dealt with in Order 36 of the Federal Court Rules)

JUDGE1

David Kerrin (the prosecutor) on 24 February 1986 laid an information under s. 5 of the Conciliation and Arbitration Act 1904 (the Act) alleging that Leighton Contractors Pty. Ltd. (the defendant) on 18 February 1986 dismissed him from its employment by reason of the circumstance that he was a member of the Australian Building Construction Employees and Builders Labourers Federation (the BLF). The defendant pleaded not guilty.

Miss Hickey, of counsel, appeared for the prosecutor and Mr. Les Kaufman, of counsel, for the defendant; they had also appeared for the prosecutor and the defendant respectively in matter V6 of 1986, in which this court delivered judgment on 30 June 1986, convicting Lewis Construction Company Pty. Ltd. of dismissing an employee, Mr. Martin, by reason of the circumstance that he was a member of the BLF. Counsel informed the court that they had had discussions as to the manner in which the hearing of the present matter could be expedited by the use of evidence tendered before the court in V6 of 1986; agreement had been reached between them that there be put in evidence in the present matter, by consent, evidence which fell into two categories. First, a large number of documentary exhibits, which had been received in evidence in V6 of 1986 were tendered, mainly by the defendant; both counsel agreed that those documents were to be "part of the evidence in the case as fully as if they were separately tendered and properly proved by a witness". Second, the defendant tendered the transcript of the whole of the evidence given by Mr.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Kerrin, D. v Leighton Contractors Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [1986] FCA 330
Decision Date: 24 JULY 1986

CaseChat Overview and Summary

In the matter of Kerrin v Leighton Contractors Pty Ltd, the Federal Court was tasked with addressing an employment dispute involving David Kerrin, an employee of Leighton Contractors Pty Ltd. The central issue was whether Kerrin was dismissed by reason of his membership in the Australian Building Construction Employees and Builders Labourers Federation, a union, which was part of a broader campaign by the union against Leighton Contractors. This dismissal was part of a series of dismissals of union members, aimed at countering the union's industrial campaign. The court had to determine whether the dismissal was indeed due to Kerrin's union membership and whether it was appropriate to exercise the discretionary power to order his reinstatement.

The court examined the nature of the dismissal and the broader context in which it occurred, including the employer's motivation and the circumstances leading to the termination of Kerrin's employment. It considered whether the dismissal was genuinely due to the union membership or if it was part of a legitimate operational decision. The court also assessed if there were valid reasons not to order reinstatement, focusing on the employer's conduct and the potential impact on the employee's rights. Ultimately, the court found that the dismissal was indeed linked to Kerrin's union membership and that there was no valid reason not to order his reinstatement.

The Federal Court concluded that Leighton Contractors Pty Ltd had dismissed Kerrin by reason of his union membership. It found the company guilty of the offence and imposed a penalty. The court ordered the reinstatement of Kerrin in his previous position or a similar one, within seven days of the order. This decision underscored the importance of protecting employees' rights to union membership and the consequences for employers who dismiss employees for such reasons without just cause.

Orders

Orders of the court

1. Leighton Contractors Pty. Ltd. is convicted of dismissing David Kerrin on 18 February 1986 by reason of the circumstance that he was a member of the Australian Building Construction Employees and Builders Labourers Federation.

2. Leighton Contractors Pty. Ltd. shall pay a penalty of $100.00.

3. The prosecutor, David Kerrin, be reinstated in his old position or in a similar position within seven days from the making of this order.

(Settlement and Entry of Orders is dealt with in Order 36 of the Federal Court Rules)

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.