Lane, K. v Arrowcrest Group Pty Ltd (Trading as Roh Alloy Wheels)

JUDGMENT NO. .. 6 9 3 ....... .../ ..,.,- $0
C A T C H W O R D S

Industrial law - termination change and redundancy - whether employer proposed to make, or had made, a definite decision to introduce "major changes" - meaning of "major changes" - discussion on the need for evidence concerning the likely effect of the changes on the employer's undertaking.
Industrial law - claim for imposition of penalties for breaches of award - standing of applicants to bring proceedings - whether applicants validly enrolled as members of a registered organisation - interpretation of the rules of the organisation - whether presumption of regularity applied to acts of an official of the organisation - tests to be applied on submission of "no case to answer" - whether ultimate findings of fact should be influenced by ruling of a case to answer - meaning of work on a "full-time basis".
Industrial law - harsh, unjust or unreasonable dismissal - whether dismissal can be justified by employer by reference to facts discovered after the dismissal - dishonesty of the employee discovered afterwards - whether in the accrued jurisdiction of the court specific performance of the contract of service should be ordered.
Matter No. S14 of 1990
KEVIN LANE, ALEKSANDER ARGIROV and JAMES KOEHN v. ARROWCREST

GROUP PTY LTD (trading as =ALLOY WHEELS)
VON DOUSSA J.
ADELAIDE
6 DECEMBER 1990

REQISTRV

11 OEC 1990

AUSRAUA
PRINCIPAL

IN THE FEDERAL COURT OF AUSTRALIA

) )

SOUTH AUSTRALIAN D ISTRICT REGISTRY )
)

JNDUSTRIAL DIVISION ) No. S14 of 1990
BETWEEN:
KEVIN LANE. ALEKSANDER
ARGIROV and JAMES KOEHN

Applicants

- and -
ARROWCREST GROUP PTY LTD
(trading as ROH ALLOY

WHEELS )

Respondent

MINUTES OF ORDER

JUDGE MAKING ORDER VON DOUSSA J.
WHERE MADE ADELAIDE
DATE OF ORDER 6 DECEMBER 1990
THE COURT ORDERS THAT:
1. On the application by Kevin Lane :

(a)

The Court finds that the respondent in breach of clause 34 of the Vehicle Industry Award 1982 did on

and wages record by a duly accredited official of 28 September 1990 refuse an inspection of its time
the Vehicle Builders Employees Federation of
Australia at the respondent's Woodville plant.

(b)

The imposition of penalty for the said breach of clause 34 will be listed for further consideration on a date to be fixed.

(c)

The claims for the imposition of penalties for alleged breaches of clauses 45 and 49 of the said Award are dismissed.
2. On the application by Aleksander Argirov :

(a) The Court finds that the respondent, in breach of clause 6(e)(i) of the said Award, did between 12 March and 14 August 1990 fail to treat Aleksander Argirov as being employed by the week.
(b) The imposition of penalty for the said breach of clause 6(e)(i) wlll be listed for further consideration on a date to be fixed.
(C) The claim for imposition of penalties for alleged breaches of clauses 6(c)(i) and 6(c)(v) of the said Award are dismissed.

(e) The claim for remedies based on breach of the contract of employment is dismissed.
3. On the application by James Koehn :

(a)

The claims for the imposition of penalties for breaches of clauses 6(e)(i), 6(c)(i) and 6(c)(v) of the said Award are dismissed.

(b)

The claim for remedies based on breach of the contract of employment is dismissed.

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

g )

SOUT )) RY
)

- N ) No. S14 of 1990
BETWEEN a

R -
ARGIRoV and
Applicants

- and -
ARROWCREST GROUP PTY LTD
(trading as ROH AtLOY
WHEELs)
Respondent

REASONS FOR JUDGMENT

: von Doussa J.
-Q 5
The applicants have joined in these proceedings separate claims seeking the imposition of penalties on the respondent pursuant to s.178 of the industrial 1988 in respect of alleged breaches of the Vehicle Industry Award 1982 ("the Award"). The respondent is a party to the Award. The precise corporate structure of the respondent is not clearly

carries on its business activities in divisions. On a site established by the evidence. It is clear however that it

operated by it at Woodville, South Australia, there are four such divisions, one of them being the ROH Alloy Wheel Company. The events the subject of these proceedings mainly concern two former employees in the Original Equipment Machine Shop ("the OE Machine Shop") of that division.

The applicant Kevin Lane is the General Secretary of the South Australian Branch of the Vehicle Builders Employees Federation of Australia ("the VBEF"), an organisation of employees registered under the Act.

On 14 August 1990 the applicants Aleksander Argirov and James Koehn were employees of the respondent working respectively as a trainee automotive spray painter and as a spray painter in the paint shop attached to the OE Machine Shop. They were that day dismissed without notice. It is common ground that the reason given for their dismissals was a downturn in the industry. The respondent has at all times asserted that they were casual employees who could be so dismissed in accordance with the provisions of the Award. The applicants dispute this, and contend that both men were employed by the week.
Mr Lane, as an officer of the VBEF, under para. 178(5) (e)
of the Act seeks the imposition of penalties for three
breaches of clause 45 of the Award, and one breach of clause

Change, and Consultation. Mr Lane also alleges a breach of 49 being clauses which deal with the topics Introduction of

clause 34 said to have been occasioned by the refusal of the respondent to allow a duly accredited official of the VBEF to inspect the time and wages record relating to casual employees during usual office hours on 28 September 1990. At the close of the applicants' case the respondent, on a "no case" submission, contended that it was not proved that M r Lane was an officer of the organisation for the purposes of para.l78(5)(e). I ruled against the submission. Under the Federal Rules of the VBEF the secretary for the time being of each Branch of the organisation is a member of the Federal Council, and as such, a holder of the office of a voting member of a collective body of the organisation that has power in relation, inter alia, to the management of the affairs of the organisation. Mr Lane is therefore the holder of an "office", and an "officer", as defined by sub.s.4(1) of the Act. His standing to bring these proceedings seeking penalties for the Award breaches alleged by him is not otherwise disputed by the respondent, but the breaches of the Award are denied.

Mr Argirov and Mr Koehn each seek the imposition of separate penalties in respect of three breaches of the Award arising under clause 6 which deals with the topic of Contract of Employment. It is alleged that the respondent failed to treat each of them immediately before the dismissal as persons employed by the week, and to give one week's notice or one

week's pay in lieu of notice, and that the dismissals were harsh, unjust or unreasonable. The respondent contends that

membership of the Union by the applicants has not been established, and that they therefore lack standing to bring the proceedings: para.l78(5)(c) of the Act. The alleged Award breaches are also denied.

By way of brief introduction before turning to the particular breaches alleged, at the outset of the trial the respondent admitted the allegations in the amended statement of claim that Mr Arglrov had been employed on 16 February 1990 and Mr Koehn on 2 July 1990 as casual employees to work under the terms and conditions of the Award.

The respondent for many years has followed a clear policy, which is made known to its workforce, that employees classified by it as permanent employees will not be retrenched. In explaining this policy the Employee Handbook says :
"The Company recognises that over the years employees develop a range of skills and knowledge which is important for the long-term development of the Company. Short-term downturns in business should not affect the job security of valuable employees."

Mr Gleeson, the respondent's General Manager of Human
Resources, explained the respondent's employment policy in
this way :

are taken on as a casual employee in the first instance. "First of all, all people taken on at a shop floor level

And they are taken on for two reasons as casuals. One is as a period of checking out, I suppose, to ensure that they are of an appropriate standard and fit in with the organisation. And secondly, and we have had a long standing policy, which is a non-retrenchment policy, and we have used the casual employee if you like, as some fat in the organisation, so we can take them on, drop them off as needs be."

A decision by the respondent to reclassify a casual employee
as a permanent employee follows a recognised procedure starting with a recommendation by the relevant supervisor that
the employee is considered suitable for appointment. This recommendation is then approved by the General Manager of the division who takes into account labour needs at the time. The Human Resources department then checks such things as past attendance, and attitude and performance reports. If all are favourable the appointment is made.
The status of permanent employees is not one recognised under the Award. The Award however in clause 6(e)(i) deals with the employment of casual employees. The true meaning and operation of this clause is a matter for later discussion. It is sufficient at this point to record that the clause includes the provision that: "The maximum period for which a casual employee can work continuously on a full-time basis (i.e. the total daily and weekly hours elsewhere prescribed in this Award) shall be one month", and if the period of full-time employment exceeds one month the employee "shall thereafter be deemed to be employed by the week".

Although there is no necessary link between the classification of an employee employed by the week for the purpose of the Award, and someone appointed by the respondent as a permanent employee, the respondent as a matter of course treats the two classifications as synonymous. As a result of this approach the respondent endeavours to adopt work practices designed by it to ensure, so it believes, that an employee engaged and paid as a casual does not become a deemed weekly employee under clause 6(c)(i) unless and until appointed by the respondent as a permanent employee.
In the course of addresses counsel have attacked the credit of various of the witnesses. In light of the conclusions I have reached it is sufficient if I say that I accept the evidence of Mr Lane, and the witness Mr Edge called by the applicants, and that I accept generally the evidence of
Mr Koehn, Mr Gleeson, and Mr Cameron the respondent's
paymaster, although on some points of detail their recollections of events may not be perfect. I also accept generally the evidence of Mr Noack, the Assistant General Secretary of the South Australian Branch of the VBEF, although
I have greater reservations about the reliability of some

aspects of his evidence than I have with the witnesses already mentioned. Mr Noack at times showed a tendency to advance the applicants' cause in a less than objective way, and I doubt the reliability of his recollections surrounding the execution of Mr Koehn's application for membership of the VBEF. The evidence of Mr Argirov, and Mr Sharkey, the Manufacturing

Manager of the ROH Alloy Wheel Company, is more difficult to

evaluate. Much of their evidence is corroborated by other

witnesses and to the extent that it is I accept it. But each man has been shown to have resorted to knowingly false etatements, in the case of M r Argirov about his application for employment, and in the case of M r Sharkey about the respondent's intentions in the early hours of 14 August 1990 as to the future employment of M r Argirov. Mr Argirov was prepared to lie and forge a document to further his own

interests, and Sharkey to lie in circumstances where he perceived that his employer's interests would be best served by him doing so. Both men were frank in the witness box about their behaviour and I do not think their evidence should be discarded in its entirety as unreliable, but, as I have said, I am only prepared to act on it where it is corroborated by other evidence, or constitutes a statement against the interest of the maker.

I shall deal first with the breaches of the Award prosecuted by M r Lane. Clause 45 was inserted into the Award on 11 March 1986 (print no. G2304), and clause 49 was inserted on 15 December 1989 (print no. 50725). The clauses have their genesis in the Termination Change and Redundancy Case (1984) 294 C.A.R. 175. Clause 45 reads :
"45 - INTRODUCTION OF CHANGE

m~lovers dutv to notify

(a) (i) Where an employer has made a definite decision to introduce major changes in production,

program, organisation, structure or technology that are likely to have significant effects on employees, the employer shall notify the
employees who may be affected by the proposed
changes and their union.

(ii) 'Significant effects' include termination of
employment, major changes in the composition,
operation or size of the employers workforce
or in the skills required; the elimination or
diminution of job opportunities, promotion
opportunities or job tenure; the alteration
of hours of work; the need for retraining or
transfer of employees to other work or
locations and the restructuring of jobs.
Provided that where the award makes provision
for alteration of any of the matters referred
to herein an alteration shall be deemed not to
have significant effect.
Em~lover's dutv to discuss chanae

(b) (i) The employer shall discuss with the employees
affected and their union, inter alia, the
introduction or the changes referred to in
subclause 45(a) hereof, the effects the
changes are likely to have on employees,
measures to avert or mitigate the adverse
effects of such changes on employees and
shall give prompt consideration to matters
raised by the employees and/or their union in
relation to the changes.

(ii) The discussions shall commence as early as
practicable after a definite decision has been
made by the employer to make the changes
referred to in subclause 45(a) hereof.
(iii) For the purposes of such discussion, the employer shall provide in writing to the employees concerned and their union all

relevant information about the changes
including the nature of the changes
proposed; the expected effects of the
changes on employees and any other matter
likely to affect employees provided that any
employer shall not be required to disclose
confidential information the disclosure of
which would be inimical to the employer's
interests."

The three breaches of this clause which Mr Lane alleges in the application are as follows :
. . .

(f)

in breach of Clause 45(a)(i) of the Award, did fail to notify its employees who may be affected and their unions, and in particular with Argirov, Koehn and their union, the VBEF, of the respondent's decision in August, 1990 to make major changes in production, program, organisation or structure at its Woodville plant, that were likely to have significant effects (as defined in the said Clause) on employees;

(g)

in breach of Clause 45(b)(i) and (ii) of the Award, did fail to engage in discussions with its employees affected and their unions, and in particular, Argirov, Koehn and the VBEF, in relation to the introduction in August, 1990 of the major changes referred to in sub-paragraph (f) above, the effects the said changes were likely to have on employees and measures to avert or mitigate the adverse effects of such changes on employees;

(h)

in breach of Clause 45(b)(iii) of the Award, did fail to provide its employees, and in particular, Argirov and Koehn, with all relevant information about the changes in August, 1990 referred in paragraph (f) above, including the nature of the changes, the expected effects of the changes, on employees and any other matter likely to affect employees;
Clause 49 of the Award provides :
"49 - CONSULTATION
In accordance with its established practice, and in accordance with the provisions of clause 45 of this award, the employer will consult with his/her employees and their unions where it proposes to make major changes in levels of production, scheduling, organisation or technology that are likely to have significant effects on employees.
'Significant effects' for this purpose would include termination of employment, major changes in the composition of the workforce, operation or size of the employee skills required, the elimination of or

diminution of job opportunities, job tenure or promotion opportunities, the alteration to hours of work, the need for retraining or transfer of employees to other
locations and the restructuring of jobs.
Consultation regarding the introduction of change would include the effect such changes are likely to have on employees and measures to avert or mitigate the adverse effects of such changes on employees."

The breach of this clause is particularised by Mr Lane in the application as follows :
S . .

(e) in breach of clause 49 of the Award, did fail to consult with its employees and their unions, and in particular with Argirov, Koehn and their union, the Vehicle Builders Employees Federation of Australia ('the VBEF') , in relation to the respondent's proposal in August, 1990 to make major changes in levels of production, scheduling and organisation at its Woodville plant, that were likely to have significant effects (as defined in the said Clause) on employees;
. . .

The substance of the case made by Mr Lane is that the dismissals of Mr Argirov and Mr Koehn, and an increase in the hours of two other employees engaged in the OE Machine Shop on the paint line constituted "major changes" within the meaning of clauses 45 and 49; and that before Mr Argirov and Mr Koehn were dismissed, the respondent did not notify them or consult with them or the Union. The respondent concedes there was no notification or consultation. The respondent however contends that the proposal and later the decision which led to the dismissal of Mr Argirov and Mr Koehn were not part of "major changes" in production, program, scheduling, organisation or structure at its Woodville plant.

It will be noted that whereas clause 45(a)(i) uses the expression "major changes in production, program, organisation, structure or technology" the expression used in clause 49 is "major changes in levels of production, scheduling, organisation or technology". Counsel do not suggest that in the present case there is any significance in this difference in language. Further, the words "significant effects" are slightly differently defined in the two clauses. Again, counsel do nor. suggest that the difference is of any

significance .
It has been assumed by the applicants' case, and not contested by the respondent, that the dismissals of Mr Argirov and Mr Koehn on 14 August 1990 constituted a "termination of employment" within the definition of "significant effects" in each clause. The contentions of the parties have focussed on the words "major changes". The two important factors, the existence of which enlivens the procedures laid down in clauses 45 and 49, are, firstly a definite decision by the employer to introduce, or a proposal to make, "major changes" of the kinds stated, and secondly, the likelihood that "significant effects" as defined will result. It is evident from the clauses that the notion of "major changes" is directed to the impact which alteration to a presently existing situation will have on management and administration whereas the notion of "significant effects" is directed to the impact which the alterations are likely to have on the

employees and their employment.
The language of clauses 45 and 49 assumes that there may be changes in production, etc. that are likely to have "significant effects" on employees which do not amount to "major changes". It is only in the case of "major changes" that the procedures laid down in those clauses come into play. It follows that the clauses recognise that there may be circumstances where (to use the language of the definition of
"significant effects" in clause 45) "major changes in the composition ... of the employer's workforce" and even "elimination ... of ...j ob tenure" will not constitute "major changes in production, program, organisation, structure or technology". In context, the word "major" in clause 45(a)(i) and in the first paragraph of clause 49 is a comparative term used to describe the magnitude of the changes which are likely to have one or more of the effects constituting "significant effects". It is necessary to determine the presently existing situation which is to be used as the comparator when determining whether the magnitude of the changes are sufficient to characterise them as "major". The loss of a certain number of jobs in a small business might fairly be said to involve "major changes" in production, program, organisation, structure and technology whereas the loss of the same number of jobs in a much larger enterprise might not be so described. On the contrary the changes might then be fairly described as minor. This is so even though the effects on the particular employees whose jobs would be lost would in

each example amount to "significant effects" as defined.
The clauses contemplate that the presently existing situation relevant to be considered will be based on the undertaking of the employer, but in a case like the present where the employer is a large organisation conducting diverse businesses at different geographic locations, through a number of divisions, and employing people whose industry descriptions attract several awards and make them eligible for membership of a number of registered organisations, the decision whether the degree of change is to be judged against the size and characteristics of the employer's total undertaking, or against some, and what, lesser part thereof, will often not be easy. Whilst it must be correct to say that the decision
whether a change is a "major change ..." is to be judged having regard to all the circumstances of the particular case, the question still remains: what circumstances relating to the employer are relevant circumstances?
In the present case the circumstances which might be treated as relevant could range from the total operations of the respondent company, to the operations encompassed by the four divisions housed at the Woodville plant, to the operations of one division only at Woodville being the OE Machine Shop, to part of the operations of the OE Machine Shop being the paint line on which Mr Argirov and M r Koehn were employed.

The determination of whether changes which are likely to have significant effects are "major changes" will require consideration of such diverse factors as the history of the employer's business operations (which may show whether or not particular divisions or geographic sites have in the past been treated as separate operations or as part of a larger homogenous undertaking), the nature and number of different aspects of the employer's operations, and the degree of assimilation between them having regard to management administration and workforce structures. In relation to the operations of the employer said to be relevant to the inquiry, evidence would be required to establish the presently existing position regarding the production, program, organisation, structure or technology which will be affected by the contemplated change, as it is against this situation which the comparative effects of the change must be assessed.
Information about these numerous matters is information of the kind which is likely to be well known to the employer, but difficult for employees and their unions to gather. In assessing the evidence led in proceedings which allege a breach by an employer of clauses such as clauses 45 or 49 of the Award the evidence must be weighed with these considerations in mind. Evidence of the observations of employees and union representatives familiar with the work place would ordinarily be sufficient to paint a broad picture sufficient to establish a case to answer, and, if the employer leads no evidence, to constitute sufficient proof of "major

changes". If the employer leads evidence the opportunity will then arise for the applicant to explore the relevant issues in
some detail in the course of cross-examination.

In the present case the evidence adduced by the applicants, and the cross-examination of the respondent's witnesses, barely touched these matters. On the contrary, counsel for the applicants pointedly avoided such matters of detail, and presented the case on the simple footing that "major changes" were proved by showlng the dismissal of Mr Argirov and Mr Koehn and change in the operating routine of the OE Machine Shop paint line from three rostered 10 hour shifts each week day to two rostered 12 hour shifts each week day.

The Award breaches charged in all cases allege "major changes at (the) Woodville plant". The evidence, such as it is, provides no detail which would justify trying to isolate from consideration any division of the respondent's operations at its Woodville plant. The four divisions carrying on business at Woodville are the ROH Alloy Wheel Company, the ROH Steel Wheel Company, Cheviot Wheels, and Steel Built. On the contrary, the evidence suggests that all four divisions, to a significant degree, share common administration.

Mr Gleeson (whose responsibility includes all four divisions at Woodville) in cross-examination said that ROH Alloy Wheel Company employed about 200 people in January 1990

workforce in that division included about 15% "casuals" and by and employed about 170 people in October 1990. In January the
October this number had dropped to 2 - 3%; in other words

there had been a drop in the number of "casual" employees from about 30 to about 4 or 5 people over this period. There had been a like change in the proportionate numbers of permanent to casual employees in the ROH Steel Wheel Company, but actual numbers of employees in that division were not given. The number of people employed in each of the other two divisions is not revealed by the evidence. The evidence does not indicate the structure of the workforce in any division by reference to numbers of tradespeople, other classifications, or to the hierarchy of supervision. No evidence was given regarding production or sales numbers relating to the output of the Woodville plant as a whole or as to any division. Although the workforce of casual employees diminished between January and October 1990, the evidence does not reveal the dates on which those casuals were dismissed (other than in the case of Mr Argirov, Mr Koehn and one other), when the people dismissed had been engaged, what fluctuations in the workforce commonly occur from year to year due to seasonal or other factors, how the workforce structure as it was in August and in October 1990 differed from the workforce structure in times past, what positions the persons dismissed (other than Mr Argirov and Mr Koehn) occupied before dismissal, or how their dismissal changed the characteristics of the respondent's

operations. Mr Edge, a spray painter who has worked on the paint line in the OE Machine Shop for four years gave evidence

production line working 10 hour shifts. One person left. Mr that in January 1990 there were three spray painters on that

Argirov commenced as a trainee and Mr Koehn was employed. The proposal then was that there would be four spray painters when
Mr Argirov completed his training. Three would be rostered

for duty on any one day. The fourth, on a rotating basis, would be rostered for other work unless one of the spray painters was away on leave or sickness. After the dismissals of Mr Argirov and Mr Koehn, Mr Edge and the other permanent spray painter commenced working 12 hour back to back shifts, but with less weekend work than before. Mr Edge said that the level of production in the OE Machine Shop was on a downturn by August 1990, and had dropped further since then. However the hours that he was required to work after August 1990 were hours that he had worked in other years, and he saw nothing uncommon about them.

Mr Edge's evidence strongly suggests that the economic downturn which led to the dismissal of Mr Argirov and Mr Koehn had produced a fluctuation of the kind normally to be expected in production in the OE Machine Shop. This is also the effect of the evidence of Mr Gleeson and Mr Sharkey who explained that the particular downturn was caused by the cancellation of certain anticipated contracts.
There was clearly a change in the level of production in
the machine shop in around August 1990, and Mr Gleeson's
evidence indicates that there was also change around about

required corresponding change in the program and organisation that time in the steel wheel machine shop. These changes

of the workforce such that a number of casual employees were dismissed, and the rostered hours of the remaining two spray painters in the OE Machine Shop were increased. But the paucity of evidence about the overall operation of the Woodville plant makes it impossible to assess, even in relation to the OE Machine Shop how significant that change was in comparative terms either in relation to the period

immediately before the change, or historically. It is not possible to tell to what degree the change impacted on levels of production, programming, scheduling, organisation or structure. In my opinion the evidence falls far short of establishing that the changes were "major changes" within the meaning of clauses 45 and 4 9 . The breaches of those clauses alleged by Mr Lane are not made out.

The remaining Award breach alleged by Mr Lane concerns clause 34 which reads :
" 3 4 - TIME AND WAGES RECORD

(a) An employer shall keep a record from which can be
readily ascertained the name of each employee and his occupation, the hours worked each day and the wages and allowances paid each week.

(b)

The time occupied by an employee in filling in any time record or cards or in the making of records shall be treated as time of duty but this does not apply to checking in or out when entering or leaving the employer's premises.

(C) (i)

The time and wages record shall be open for inspection to a duly accredited union

official during the usual office hours at any employer's office or other convenient
place.
(ii) An inspection shall not be demanded unless
the secretary of the union or the district secretary or organiser of any division thereof suspects that a breach of this award has been committed.

(iii) Only one demand for such inspection shall be made in any week at the same establishment.
(iv) The official making such inspection shall be entitled to take a copy of entries in a time and wages record relating to the suspected breach of this award."

The applicant tendered correspondence with the respondent indicating that from 25 June 1990 the status of some employees alleged to be "casual" by the respondent was under question by the VBEF who considered that they should be deemed to be persons employed by the week pursuant to clause 6(e)(i) of the Award on the footing that they had been in full-time employment with the respondent beyond one month. The dismissal of Mr Argirov and Mr Koehn gave new impetus to the efforts of the VBEF. On 24 September 1990 Mr Lane gave notice to the respondent that it wished to inspect the time and wages records relating to all casual employees who had been employed by the respondent during the nine months from 1 January 1990. Mr Lane advised that Mr Noack, who was duly authorised for that purpose, would attend at the respondent's Woodville premises at 8.OOa.m. on 28 September 1990 to make the inspection. The respondent immediately replied saying that it
was not prepared to allow inspection of the time and wages
records as sought. The respondent's letter continued :

"We note that your correspondence suggests that you
suspect the Company to be in breach of Clause 6(e) (i) of the Award (with a consequential breach of Clause 45 in the event of termination of employment). You will be aware that this Company is of the view that its practices in relation to Clause 6(e)(i) are not in breach of the Award. Further the question of Award breach is listed for hearing in the Federal Court before Mr. Justice Keely commencing on 9th October, 1990. The decision to be made on that claim by you that the Award has been breached by the Company will determine the issue.
Until the matter is decided it is the Company's view that you can have no basis for suspicion that the Award has been breached as required by Clause 34(c)(ii)."

The proceedings in this Court before Keely J. raised most of the issues which are now before the Court, save for the breach of clause 34, but those proceedings were later abandoned in favour of the present action.
At about 7.45a.m. on 28 September 1990 Mr Noack attended at the entry gate to the respondent's premises at Woodville. He announced his purpose to the security guard. He was granted admission to the plant. He went to the administration building but discovered it was locked. He returned to the front gate and requested the security guard to telephone Mr Noel Uren, the personnel manager at the Woodville plant.
Mr Uren was located and attended at the gate where he conferred with Mr Noack. The relationship between the parties was such by this time that each man recorded their conversation. Mr Uren had with him the correspondence of 24 September 1990 which he used as the expression of the company's reason for declining Mr Noack's request. Their

conversation included the following exchange :

"Uren Alright, I hear what you're saying Paul. Again I refer you to this correspondence here and until this matter is resolved as laid down here, we cannot at this stage comply with your request.
Noack So you won't let me have a look at the time
sheets and won't let me have a look at the...
Uren No, as I said, we've received correspondence here and that's quite clear. That's laid out to you, it's been sent to you by this organisation. You tell me you've received it, we faxed it to you the other day, quite some
time ago by the looks.
Noack What we're saying Noel is that the company really in our opinion, doesn't have a right to prevent us because the Award is the Award irrespective of anything else. The Award states that the accredited officer has the right to come in and inspect those time sheets because we have a right to check that Award to see if it's been breached or not.
Uren ... As I said we could stand here all day, you've received the letter Paul, that's it I can't say anything more than that until someone gives me further directions."

Mr Lane deposed to holding a suspicion of the kind referred to in clause 34(c)(ii), and the respondent does not contest that the suspicion was held. The respondent however argues that Mr Noack's attendance at the Woodville plant a little before 8.00a.m. was not "during the usual office hours" within the meaning of clause 34(c)(i) and for this reason that the refusal then to grant the inspection is not a refusal contrary to the provisions of the Award. Mr Gleeson gave evidence, which I accept, that the usual office hours of the administration section of the Woodville plant during week days

is 8.30a.m. to 4.36p.m.
There is a point of construction to be determined in clause 34(c)(i) as to the meaning of the words "the usual office hours at any employer's office or other convenient place". Are "the usual office hours" to be determined according to customary office hours in the community or are they to be determined according to the practices and idiosyncrasies of a particular employer? There is something to be said for each view. In the former case the hours for inspection would reflect the customary working hours of clerical staff who are likely to maintain the record, and would be convenient for inspection by a union official. Such a construction would also prevent a particular employer adopting strange office hours to impede inspection. On the other hand if the particular employer's office hours are determinative, the minimum of inconvenience should be caused to the employer's administration. Both counsel favoured the latter construction which, on reflection, I think is correct. The difficulties which would confront a party seeking to establish what hours are customary in the community as usual office hours persuades me that the Award should be understood as referring to the usual office hours adopted by the employer.
The evidence establishes that Mr Noack's visit was not
within the usual office hours when the employer's
administration section was open. In my view that part of the

Woodville plant, which housed the central pay records and time sheets, constituted for relevant purposes "the employer's
office".

A vigorous attempt was made by counsel for the applicants to establish that pieces of paper, being computer print outs and other piecemeal records, recording daily and weekly times, would have been available in the OE Machine Shop which operated at all hours, and that these pieces of paper

2 3

constituted records that could have been made available for inspection at the time when Mr Noack sought inspection. In my view this attempt failed. Firstly, I am not satisfied that the various pieces of paper that may have passed through the hands of the supervisors in the OE Machine Shop from time to time, even if accumulated, would constitute the record referred to in clause 34. Secondly, I am not satisfied that there was an accumulation of these pieces of paper available in the supervisor's office. Clause 34(a) contemplates the keeping of "a record", that is an official record wherein the hours worked each day and the wages and allowances paid each week are fully and permanently recorded. The "record" kept by the respondent which meets that description consists of the central records kept for pay and other business purposes in its administration office. It is the record required to be kept by clause 34(a) that is to be made available for inspection pursuant to clause 34(c).

I am therefore satisfied that when Mr Noack attended the did not do so during the hours specified in clause 34(c) (i).

respondent's premises for the purposes of his inspection he

However that conclusion is not the end of the matter. It is plain from the discussion which occurred between Mr Uren and
Mr Noack that inspection was being refused, not because of the

time, but for other reasons, and that even if Mr Noack were to "stand here all day" the refusal would be maintained. That refusal in my opinion was, in the circumstances of this case, a refusal contrary to the provisions of the Award. The point
is covered by the decision of the Full Court in Menelinq

-	d	t	L	v	-	s
(1987) 18 FCR 51. The appellant had been charged with four breaches of clause 23(c) of the Northern Territory Meat Processing Award 1984 which required an employer on demand to produce the roster and time and wages record to an official of the union for inspection on certain days of the week between 10.OOa.m. and 4.00p.m. On 30 May 1986, after making due demand, an official of the union attended at the appellant's premises at 8.30a.m. The demand to inspect the roster and time and wages record was repeated and unequivocally refused by the appellant. The Full Court held that in the circumstances of that case the refusal at 8.30a.m. constituted a breach of the Award and that it was not necessary for the authorised official to remain in attendance at the employer's premises during or throughout the specified hours on the day appointed for an inspection before a breach could be established. At p.65 the Court said :

constituted by refusal to comply with a demand or request "However, in our view, a breach of a term of an award

may arise in one of two ways. It is most commonly proved by establishing a failure to perform the obligation at, or within, the time stipulated by the request or demand in accordance with the term of the award. Secondly, it may arise from an explicit statement by a party to the award that he will not perform his obligation thereunder. Such a statement does not have the consequences imported by the law of contract where one party accepts what is sometimes called an 'anticipatory breach' by another party. Accordingly, an applicant under s.119 of (the Conciliation and Arbitration Act 1904), who relies on such a refusal to perform in the future an obligation imposed by a term of an award, runs the risk of the respondent's adducing evidence that he resiled from the anticipatory refusal before the time for performance had arrived. Where, as in this case, no evidence of that

kind is adduced, the Court is entitled to presume, as the learned trial judge apparently did, that the unequivocal refusal continued up to the time fixed for performance."

In the instant case the respondent's letter of 24 September 1990 made it clear that inspection was being refused regardless of the time at which inspection was sought, and Mr Uren, on the day nominated for inspection, could not have made it clearer that there was no point in Mr Noack waiting. The
respondent has adduced no evidence that it had a change of heart later on 28 September 1990, and would have allowed inspection had Mr Noack sought it during the usual office hours that day. In my opinion a breach of clause 34(c) as alleged has been established.
I turn now to the Award breaches alleged by Mr Argirov and Mr Koehn. The first question to be decided is whether their membership of the VBEF has been proved. It is necessary to consider each applicant separately although a number of common issues are involved.

Central to the respondent's case on this topic are the

Rules of the VBEF governing admission to membership. The
relevant rule, from the Federal Rules, reads :
"20. Admission to Membership

(a)

Any eligible person who desires to become a member of the Federation shall sign a completed application form in the presence of a Branch Secretary or Sub- Branch Secretary or other person authorised by the Branch Secretary or Sub-Branch Secretary to witness the same.
(aa) The relevant Branch Secretary or Sub-Branch Secretary, as the case may be, shall provide or cause to be provided to each eligible person who desires to become a member of the Federation a written statement settlng out -
(i) the financial obligations arising from membership of the Federation; and

(ii) the circumstances, and the manner, in
which a member may resign from the
Federation.

(b) Upon receiving the completed application form the Branch Secretary or (where it is appropriate that the applicant should be attached to a Sub-Branch) the Secretary of the relevant Sub-Branch shall complete the certificate endorsed thereon and the applicant shall thereupon be deemed to be a member of the Federation and shall be liable to pay all fees contributions fines or dues payable under the

rules. "

The respondent contends that compliance with each of these paragraphs is mandatory and proof of non-compliance in the case of a person seeking membership has the consequence that the person is not validly admitted to membership.

Rules 20(a) and 20(b) in part reflect the requirement of the general law for admission of a person to membership of an

association. There must be an application to become a member

from the person seeking membership, and an acceptance thereof
by or on behalf of the association. Ordinarily these

fundamental steps would not require any particular formality. However paras. (a) and (b) of r.20 by their terms specify formalities. The question is whether these formalities are essential to validity or are merely directory.
The procedure in r.20(b) assumes that the "application

2 7

form" referred to in r.20(a) will have a "certificate endorsed thereon". An application form of the kind used by the VBEF has been tendered in evidence. The reference thereon to "Pence Card" suggests that the form, or one like it, has been in use for a long time. The face of the form reads "APPLICATION FOR MEMBERSHIP" and there is provision for an applicant seeking enrolment to fill in personal particulars. By the terms of the application, the applicant agrees to be bound by the Rules of the VBEF. On the reverse side is a form
of certificate as follows :
I, the undersigned, hereby certify that
........ ........ ........ ........ ........ ......
was enrolled as a member of the Vehicle
Builders Employees' Federation of
Australia, on the

........ ..... day of ........ ........ ...... 19
Signed

........ ........ ........ ........ .... Secretary,
South Australian Branch.

It will be noted that r.2O(b) directs that the Branch Secretary "shall" complete the certificate upon receiving the completed application. Notwithstanding this mandatory language, I think that r.2O(b) should not be construed so strictly that it deprives the Branch Secretary of any power to
refuse to complete the certificate. Under sub.s.261(1) of the Act a person eligible to membership "is, unless of general bad character, entitled, subject to payment of any amount properly payable in relation to membership: (a) to be admitted as a

mernber of the organisation ..."
Rule 20(b) should be construed so as to permit the Branch Secretary to decline to complete the certificate if he is of the opinion that an applicant is not eligible for membership under the eligibility rules, or is of bad character. Subject to that qualification the import of r.20(b) is that the Branch Secretary will as a matter of course complete the certificate. The intent of r.20 seems to be that the primary vetting of a person as eligible for membership, and as not being of bad character, will occur when the application form is completed and signed as required by r.20(a). It is not mere surplusage that r.ZO(a) requires the application form to be signed in the presence of a Branch Secretary, a Sub-Branch Secretary, or another person authorised by the Branch Secretary or Sub- Branch Secretary to witness the applicant's signature. This

exists in fact, is the person whose details appear on the procedure is to ensure that the person applying for membership

application form, and is an eligible person not of general bad character. The procedural formalities are important, and the requirement in r.20(a) that the eligible person seeking membership "shall" sign a completed application form in the presence of one of the prescribed persons should, in my opinion, be construed as mandatory.
The construction of r.20(b) also raises a question whether an application for membership, made on the form required by r.20(a), can only be accepted on behalf of the organisation in the manner there laid down. I do not think it should be construed in this way. The rule implicitly authorises the Branch Secretary to act on behalf of the organisation for this purpose by providing that on completion of the certificate the applicant shall be "deemed" to be a member. This is a practical and administratively convenient procedure, but I do not think the rule should be construed so as to deprive the principal organs of government of the organisation from authority to accept into membership an eligible person who has completed the appropriate application form. However, if a person relies on an act of acceptance into membership by the Federal Council or the Executive of the Union, proof of that fact will be more cumbersome than the simple expedient of producing a completed application form with the Branch Secretary's certificate endorsed thereon as could be done if acceptance occurred under r.2O(b).

The requirements of r.20(aa) are no doubt of practical importance, but I think that they should be construed as merely directory and not mandatory. The information to be given under r.20(aa) to an applicant for membership is information that would be readily ascertainable from a perusal of the Rules, or from an inquiry of the VBEF office. The provision of the information is not essential to the formation of a contractual relationship between the applicant and the organisation. For this reason I do not think the admitted failure of Mr Noack, who was involved with the purported enrolment of both applicants, to give them the information required by r.20(aa) would invalidate their membership if the enrolment procedures were in other respects complied with.
In the case of Mr Argirov, I find that he completed an application form for membership in the VBEF office at 12 Morney Street, Adelaide on Thursday 8 February 1990. He attended during ordinary office hours. After stating his business he was referred to Mr Noack. He completed the application form in Mr Noack's presence who then witnessed his signature. Mr Noack took the form to the general office where it was processed, and the certificate endorsed on the reverse side was completed with M r Argirov's name and the date. The certificate was then signed by Mr Noack who inserted the word "Acting" before the printed word "Secretary", so that the certificate recorded that it was completed by the Acting Secretary of the South Australian Branch.

The circumstances in which Mr Koehn alleges he applied for membership are out of the ordinary. He says that in the early hours of the morning of Saturday 4 August 1990 he was at Mr Argirov's house. The two had been to a "work dinner" on Friday evening. Mr Noack is a good friend of Mr Argirov. He was not present at the dinner but came to Mr Argirov's house late in the evening. There was general discussion about Mr Koehn joining the union. Mr Noack obtained an Application for

3 1

Membership form from his car. The form was filled out in Mr Argirov's house by Mr Koehn who completed both the application on the face of the form and the certificate on the back. Where provision is made on the back for the signature of the Secretary Mr Koehn signed his own name. Mr Koehn could not recollect whether he gave the completed form to Mr Argirov or to Mr Noack. He did not see Mr Noack sign it; and he does not know whether Mr Noack was present in the room when he filled out the application form. Mr Argirov gave no evidence about the completion of this form. Mr Noack confirmed that the form had been given to Mr Koehn at Mr Argirov's house during a social visit one evening. He could not remember the time of the day. His belief was that he had been at the hotel with the other two late in an afternoon during a weekend, and had then visited the Argirov's house. He confirmed that the question of Mr Koehn's membership came up in general discussion, that he obtained an application form from his car, and that he gave it to Mr Koehn to complete. He said it was his clear memory that Mr Koehn filled out the form and signed

been present whilst the form was being completed I think it is it in his presence. I think this is unlikely. Had Mr Noack

unlikely that Mr Koehn would have incorrectly completed the reverse side of the form, and more unlikely still that he would have signed the reverse side. Mr Noack says that he witnessed Mr Koehn's signature that evening and took the form with him. I find it surprising if that were so that Mr Noack did not observe that the form was incorrectly completed on the reverse side and have another application filled out. Mr

Noack says that he took, the completed form into the VBEF office on the morning of Monday the 6th, used "white ink" to blot out Mr Koehn's writing on the reverse side of the form,

had the office staff process the form, and then he signed it, inserting his own description as "Acting" Secretary. If this is so, it is odd that the reverse side of the form was dated 4 August 1990 rather than 6 August 1990 being the day on which the purported enrolment, according to Mr Noack's evidence, occurred.

I am not persuaded on the balance of probabilities by the evidence that Mr Koehn signed a completed application form in the presence of Mr Noack.

No evidence led by the applicants was directed to the question whether Mr Noack was a person authorised by the Branch Secretary for the purpose of witnessing the signature of an applicant for membership in accordance with r.20(a). Nor was any evidence led by the applicants to establish that

Wr Noack was filling the position of Acting Secretary when he completed the certificate on either form.

Extensive evidence was given by Mr Noack as to his long standing practice of obtaining applications for membership from eligible people, and as to the processing of those applications. Mr Noack when first cross-examined about these practices said that it was common for him to witness the signature of the applicant and also to sign the certificate on the reverse side of the form at the same time, leaving it to the office staff to process the form and complete the information on the certificate later. However, later, after an adjournment overnight when he would have had the opportunity to reflect upon the significance of his evidence in this respect, the following questions and answers
occurred :

"...And if anyone approached you at any time at the union

off ices and asked to join up, you would follow the same Right. And you would sign the front where they had filled it out and then you would sign the back when it was completed?---Yes, depending on what my capacity was at that particular time.

sort of procedure as you did with Mr Argirov7---Well, you And sometimes, you have told us, you have signed the back, whether it is completed or not?---Yes."

can fix

the whole lot up at once in the union office.

The reference to M r Noack's changing capacity directs
attention to the Rules of the South Australian Branch of the
VBEF. Rule 17 provides, inter alia, :

Assistant Secretary shall carry out the duties of the "17...In the absence of the General Secretary, the
General Secretary..."

It was common ground that this provision of the Rules has the effect that when the General Secretary is out of the State, absent from duty due to sickness, or on leave, the Acting Secretary, in carrying out the duties of the General Secretary of the Branch, has and exercises the powers and functions of the General Secretary including those arising under r.20(b).
Relevant to the question of Mr Argirov's membership is evidence which was led concerning his appointment as a shop steward of the VBEF. Prior to 13 August 1989 the respondent was not aware that Mr Argirov claimed membership of the VBEF. Mr Argirov says, and I accept his evidence in this regard supported as it is by Mr Noack, that he paid his union dues direct to the VBEF. On 13 August 1990 Mr Lane on behalf of the VBEF advised the respondent by facsimile that Mr Argirov had been appointed one of its shop stewards, with responsibility at the respondent's Woodville plant. It is plain from the attitude of the parties in these proceedings that the intrusion of the VBEF into the industrial affairs of the respondent was anything but welcome. The coincidence in time between the advice of Mr Argirov's appointment and his dismissal not surprisingly gave rise to suspicion on the part of Mr Argirov and the VBEF that the dismissal was related to his appointment. However an allegation to this effect

satisfied that the decision to dismiss Mr Argirov was made by initially made in this Court was not proceeded with, and I am
the respondent before it was notified of his appointment.

I accept Mr Noack's evidence that Mr Argirov's nomination for appointment as a shop steward was approved by the Branch Executive of the VBEF on 1 August 1990, and that his appointment was ratified at a monthly meeting of members held on 8 August 1990. A proposed circular for distribution at the
3 5

respondent's plant advising of Mr Argirov's appointment dated 10 August 1990 was admitted into evidence. As events turned out this circular was not promulgated, but the draft bears the signature of Mr Lane as South Australian Branch Secretary, thereby signifying his verification of the appointment of Mr
Argirov .
On the "no case" submission made on the respondent's behalf at the end of the applicants' case, it was contended that the evidence failed to establish that Mr Noack was a duly authorised witness for the purposes of r.2O(a), or that the applications for membership had ever been validly accepted as required by r.20(b). It was submitted that the status of Mr Noack as Acting Secretary at the relevant time had not been established.
I ruled against this submission. The test to be applied
on a no case submission is whether the evidence, as it then
stands, could make out the applicants' case. The decision is

to be made on the assumption that all the evidence of primary fact, considered at its strongest from the point of view of

the applicant, is accurate, and on the further assumption that all inferences most favourable to the applicants which are reasonably open, are drawn. On these assumptions the question is whether the evidence is capable of establishing the
applicant's case to the requisite degree of proof. m v.
Q'Sullivan (1955) 92 CLR 654, The Oueen v. Bilick & Starke

(1984) 36 SASR 321 at 337 and TeD~er v. Di FranCeSCQ (1984) 38

SASR 256 at 268. It was then my view that the evidence was legally capable of supporting inferences that Mr Noack was authorised to witness applications for membership, that when he completed the certificates he was acting in the capacity of Acting Secretary, and, in any event, in the case of Mr Argirov that the events surrounding his appointment as shop steward were capable of evidencing a decision by a governing organ of the VBEP to accept him into membership even if the earlier completion of the certificate by Mr Noack was invalid.

No evidence was led by the respondent which bears on the membership issues. In his final address counsel for the applicants submitted that as I had ruled that the evidence at the close of the applicants' case was sufficient to overcome the "no case" submission, as a matter of course I should now hold that the evidence proved the applicants' membership. This is not so. Even where no further evidence is led on relevant issues of fact during the respondent's case, other matters which do not arise at the "no case" stage may lead a

case" submission have not, at the end of the day, been tribunal to find that the issues of fact canvassed on the "no

satisfactorily proved. In particular, at the decision stage the tribunal is required to consider issues of credibility, and to assess the weight to be accorded to the applicant's evidence having regard, in an appropriate case, to the probable means of knowledge of the facts in issue on either

side: v. Archer (1774) 1 Cowp. 64 at 65, 98 E.R. 969
at 970.

3 7

The authority of Mr Noack to complete the certificates of membership pursuant to r.20(b) was squarely raised by the respondent in a request for particulars, and the answer given was that he held authority as a person in the position of Acting Branch Secretary. In these circumstances it is extraordinary that no evidence was led from Mr Noack, and more particularly from M r Lane who was called by the applicant to give evidence on another point, as to whether Mr Lane was "absent" for the purposes of the Rules on the relevant dates when the certificates of membership were endorsed. Information on that topic lay wholly within the power of the VBEF, and it can reasonably be assumed that there would be records to establish whether Mr Noack was truly fulfilling the position of Acting Secretary at these times.

It is also surprising that no evidence was led as to the authority of Mr Noack to witness the signatures of people completing applications for membership. However even without direct evidence on this topic I am able to find that Mr Noack

was a person authorised to act as a witness for the purpose of r.20(a). A person acting as an authorised officer for the

purposes of r.20(a) when seeking enrolment for membership of an organisation registered under the Act is, in my view, fulfilling a capacity that is sufficiently public in its nature to attract the operation of the maxim omnia praesumuntur rite et solemniter esse actq: see B. v. Whitaker [l9141 3 KB 1283 at 1296 and Hardess v. Beaumont [l9531 VR 315 at 318-319. Here there is Mr Noack's evidence about past

practices, not only on his part of so acting, but of applications obtained by him being completed, in some cases, by the General Secretary. The Court is entitled to act on the presumption arising from the past conduct that in so acting Mr Noack was properly performing that function with the necessary authority, in the absence of proof to the contrary. See also
v. Helm [l9131 3 K.B. 462.

The applicants' primary case asserts that when the subject application forms were witnessed and the certificates completed Mr Noack was Acting Secretary. If this allegation were made good he would be duly authorised for the purposes of r.20(a) by reason of that office, and also authorised to complete the certificate for the purposes of r.20(b).
I am not prepared to infer from the evidence, and in particular from the fact that Mr Noack when completing the certificates of membership described himself as Acting Secretary, that he was in fact fulfilling that role. It

Mr Lane, with the records of the VBEF, to have proved the true should have been an easy matter for Mr Noack and the applicant

position. The only evidence touching on the topic of the capacity of Mr Noack at the time when the certificates of membership were completed by him is that in his hand he, at the time, wrote "Acting Secretary". That evidence was not accompanied by an assertion by him that he was so acting or that Mr Lane was "absent". There is no evidence that on or about the time when either certificate was completed Mr Noack

3 9

was fulfilling the duties of Acting Secretary so as to give rise to a presumption of regularity that he was acting in that capacity when he completed the certificates. The truth of the fact asserted by his writing is the very fact in issue and the fact that he so described himself at the time, in the absence of any other evidence that he was then acting as Acting Secretary, cannot be used as a primary fact to found the operation of a presumption of regularity. To use the evidence in this way would involve circularity of reasoning: see
Hardness v. Beaumont at 317. To the extent that I reasoned in
this way when rejecting the respondent's "no case" submission I was in error. In my opinion the evidence fails to prove that Mr Noack was fulfilling the position of Acting Secretary at the time when he completed the certificates on the application for membership forms, and the production of those certificates does not provide proof that the applications for membership by Mr Argirov and Mr Koehn were accepted by virtue of the deeming provision in r.ZO(b), on or about the dates stated therein.

However it is my opinion that in the case of Mr Argirov acceptance of his application for membership form is to be inferred from other events proved at trial, and in particular from his appointment in August 1990 as a shop steward, an appointment confirmed under the hand of the Branch Secretary in the draft circular dated 10 August 1990, and confirmed also by Mr Lane's facsimile to the respondent of 13 August 1990 advising of Mr Argirov's appointment as shop steward.
Eligibility for that position depends on membership of the
VBEF . In my opinion the events which happened provide
evidence which I should act upon as proof on the balance of probabilities that the VBEF through its formal organs of government accepted the application for membership from Mr Argirov even if Mr Noack were not validly performing the

duties of Acting Secretary when he completed Argirov's
certificate of membership.
In the case of Mr Argirov I therefore reject the respondent's submission that the evidence fails to prove his membership of the VBEF. I hold that he was a member, and by reason of his membership has the standing to prosecute the applications which he has joined in these proceedings.
For the reasons given, the evidence does not satisfy me
that when Mr Noack completed the certificate of membership for
Mr Koehn he was acting as General Secretary of the South
Australian Branch of the VBEF in the absence of Mr Lane.

Further, it is not proved that he validly signed an application for membership form, and there is no evidence from

which it may be inferred that an application for membership by him was accepted by the organisation otherwise than under r.2O(b). The respondent had not been advised prior to his dismissal that Mr Koehn claimed to be a member of the VBEF. Union dues were not deducted by the respondent from his salary.

4 1

I therefore hold that it has not been established that Mr Koehn was a member of the VBEF. The claims for penalty joined by him in these proceedings are incompetent.
As I have held that Mr Argirov was at relevant times a
member, it is necessary to consider the Award breaches alleged
by him. Central to his case is clause 6(e) (i) of the Award
which reads :
"CASUAL EMPLOYMENT
A casual employee is one engaged and paid as such. The maximum period for which a casual employee can work continuously on a full-time basis (i.e. the total daily and weekly hours elsewhere prescribed in this Award) shall be one month. In any case where such full-time employment extends beyond one month, the employee shall thereafter be deemed to be employed by the week."

Clause 6(a) provides :
yJeeklv or casual hire

(a)

Except as hereinafter provided, employment shall be by the week. An employee not specifically engaged as a casual employee, shall be deemed to be employed by the week."

During his final address counsel for the applicants sought to argue that the evidence shows that both Mx Argirov and Mr Koehn were not specifically engaged as casual employees. I refused to allow that submission to be made. The amended statement of claim pleads that both men had been employed as casual employees. The case had been fought on that footing. If the evidence suggests otherwise that is probably because the respondent saw it as irrelevant to
counter the suggestion in the applicants' evidence. It was too late after the close of evidence for the applicants to press their claims on a new basis inconsistent with that on which the evidence had been led. I approach the Award breaches alleged by Argirov on the footing that he was "engaged and paid" as a casual employee within the meaning of clause 6(e)(i).
The proper construction of clause 6(e)(i) has been a point of contention between the VBEF and the respondent for some time. The respondent's contention is that the words "on a full-time basis (i.e. the total daily and weekly hours elsewhere prescribed)" cover only the situation where an employee engaged and paid as a casual employee works 38 ordinary hours each week. A person is not therefore in full- time employment extending beyond one month for the purposes of the Award unless in each of four successive weeks the employee has worked 38 ordinary hours. No distinction was drawn in argument by the parties between four successive weeks and "one

monthn. The respondent contends that if the employee during a period of four weeks works less than 38 ordinary hours in any

one week in that "month" the deeming provision in clause 6(e) (1) is not invoked. This is so even if in the week where less than 38 ordinary hours are worked, the employee works numerous hours for which overtime rates are paid.
The applicants on the other hand contend that if an
employee engaged and paid as a casual employee is regularly

4 3

rostered in the same way as a weekly employee, and works in fact 38 hours or more each week, however those hours are paid, the employment is for relevant purposes full time employment, and after four weeks the employee is deemed to be an employee employed by the week.
The competing arguments are to be considered against the
ordinary hours and overtime hours worked each week by Mr
Argirov. I also set out the hours of Mr Koehn to provide an
example of another situation. Those hours worked were :
Mr Argirov

Week ending Shifts Ordinary Overtime & Total

hours crib hours
4 (Part Week)
5
-
6 5
4 (Easter)
4

5 (Anzac)

Mr Koehn

16/7/90 6 37.9 17.4 55.3

23/7/90 5 36.4 6.7 43.1

30/7/90 6 35.5 24.1 59.6
6/8/90 5* 30.3 2 0 50.3

13/8/90 5 3 8 0.9 38.9
[ * Time off taken with permission to visit a doctor]
Mr Argirov was normally rostered for shift work from 2200 hrs to 0606 hrs. Allowing for a 30 minute meal break each shift, these rostered times would involve 7.6 ordinary hours each shift or 38 ordinary hours over five shifts. The explanation for Mr Argirov being credited in some weeks with 37.9 ordinary hours for five shifts is that following the Friday night-Saturday morning shift each week the painting equipment is cleaned. To allow extra time for this to occur, and as a deliberate step to prevent casual employees in that week clocking up 38 ordinary hours, the employees are instructed to knock off at 0600 hours, that is 6 minutes (0.1 of an hour) early. But for this having happened to Mr Argirov in the weeks ending 26 February, 5 March and 12 March 1990 he

would at the end of that period have worked 38 ordinary hours in four consecutive weeks (or, if it mattered, for one calendar month in the period 12 February to 12 March 1990).

It was conceded by Mr Gleeson that Mr Argirov and Mr Koehn, and other casual employees engaged by the respondent, performed the same work as weekly employees, that they were roatered and paid in the same way, and that a particular job performed one week by a weekly employee might have been performed by a casual employee the next week. The respondent

rostered casual employees on a continuing weekly basis. It expected them to be available for work each day of the week, and for overtime.

The Award provides that from the first pay period after 1 June 1982 wages shall be paid for 38 ordinary hours of work to be performed in five days each seven day week cycle, although special provision is made for paying an employee who works an average of 38 ordinary hours of work each week where longer work cycles are utilised: see clauses 7(i) and 17 and 17A.

Clause 17 deals with p S . - R Clause 17A

deals with the 2 JK. Provision is made for shiftworkers, who work either continuous work shifts

or shifts other than continuous work shifts: see clause 18.

It is not clear to me on the evidence whether Mr Argirov during his period of engagement was working a continuous work shift in which case clause 18(a) applied, or whether he was working shifts other than continuous work shifts in which case clause 18(b) applied. A "continuous work" shift is defined by

clause 18(a)(i). Until the conclusion of the evidence I had the impression both from the evidence and from the attitudes

of counsel that Mr Argirov was working "continuous work shifts". However in her final address counsel for the respondent asserted that he was working "shifts other than continuous work shifts". I have come to the conclusion that it makes no difference to the outcome of the case which situation prevailed, but I set out the relevant provisions of clause 18 for both.
"18 - HOURS OF WORK - SHIFT WORKERS
continuous work shifts

(a) (i) For the purposes of this clause and clause 20 of this award the expression 'continuous work' means work carried on with consecutive shifts of men throughout the 24 hours of each of at least five consecutive days without interruption except during breakdowns or meal breaks (if any).
(ii) An employee working on continuous work shifts shall work thereon such number of shifts up to six per week as may be required.
(iii)This subclause shall apply to shift workers on continuous work as defined. The ordinary hours of shift workers shall, from the first pay period to commence on or after 1 June 1982 average 38 per week inclusive of crib time and shall not exceed l52 hours in 28 consecutive

days;. . .
(iv)An employee on continuous work shifts shall work at such times as his employer may require subject to the following conditions:
(1) A shift shall consist of not more than ten hours inclusive of crib time. Provided that in any arrangement of ordinary working hours where the ordinary working hours are to exceed eight on any shift the arrangement of hours shall be subject to the agreement of the employer and the majority of employees concerned.

(3) Twenty minutes shall be allowed to shift
workers each shift for crib which shall be
counted as time worked.
(v) The ordinary hours prescribed by this subclause shall be worked continuously.

(b) (i) This subclause shall apply to shift workers not upon continuous work as hereinbefore defined. Subject to clause 17A and clause 17B of this award, the ordinary hours of work from the first pay period to commence on or after 1 June 1982, shall be an average of 38 per week to be worked on one of the following bases:
(1) 38 hours within a period not exceeding
seven consecutive days; or

(ii)The ordinary hours prescribed by this clause shall be worked continuously except for meal breaks at the discretion of the employer.
(iii)Except at the regular change-over of shifts an employee shall not be required to work more than one shift in each 24 hours.
(iv) Provided that the ordinary hours of work prescribed herein shall not exceed ten hours on any day. Provided further that in any arrangement of ordinary working hours where the ordinary working hours are to exceed eight on any day, the arrangement of hours shall be subject to the agreement of the employer and the majority of employees concerned.

(c) The method of working shifts may in any case be varied by agreement between the employer and an officer of the union concerned or a branch thereof to suit the circumstances of the establishment or in the absence of agreement by seven days' notice of alteration given by the employer to the employee concerned and thereafter shall only be altered in

like manner.
(d) Shift rosters shall specify the connnencing and finishing times of ordinary working hours of the respective shifts."

Clause 17A and 1'B are not material for present purposes. Clause 20 proviccs special r-tes of pay for shift workers.
Clause 23 provides for overtime. It reads :
"23 - OVERTIME
(a) Work done in excess of or outside the ordinary working hours prescribed by this award or outside an employee's rostered starting and finishing time, or on a shift other than a rostered shift, shall be paid for at the rate of time and one-half for the first three hours on any one day or shift and at the rate of double time thereafter, such double time to continue until the completion of the overtime work except when the time is worked: ...( then follow three exceptions which are not material to set out)
(b) (i) For the purposes of this clause ordinary hours shall mean the hours of work fixed in an establishment in accordance with clauses 17, 17A, 17B or 18 of this award.
(ii) ...
crib time

(g) (i) An employee working overtime for more than one and one-half hours after working ordinary hours shall before starting such overtime be allowed a crib break of twenty minutes which shall be paid for at ordinary rate.

(j) An employer may require an employee to work
reasonable overtime at overtime rates and such employee shall work overtime in accordance with such requirement."

weekly hours elsewhere prescribed in this award)" contains The expression "full-time basis (i.e. the total daily and

within it the only express indication of the meaning "full- time basis" to be found in the Award. The respondent contends that the only daily and weekly hours elsewhere "prescribed" in the Award are to be found, relevantly, in clause 18. But clause 18, like clause 17 which deals with day workers, provides that the ordinary hours of work shall average 38
4 9

hours per week. The clause does not employ the expression "daily and weekly hours". The notion of ordinary hours is one used in the Award in contrast with the notion of overtime hours. Both notions are important in the calculation of rates of remuneration, but it does not follow, in my view that "the total daily and weekly hours elsewhere prescribed in this award" means employment necessarily including an average of 38 hours paid as ordinary hours per week.
It is significant that clauses 17 and 18 frequently speak of "ordinary hours of work prescribed" and clause 23(a) speaks of work done in excess of or outside the "ordinary working hours prescribed by this award". These expressions stand in contrast to "daily and weekly hours elsewhere prescribed in this award", the expression found in clause 6(e)(i). If the respondent's argument were correct the use of an expression such as "the ordinary hours of work elsewhere prescribed in this award" would be expected. The respondent's argument also overlooks clause 23(j) which permits an employer to require an

reasonable overtime at overtime rates. Where an employer so "employee" (which includes a casual employee) to work

requires I consider the overtime hours worked are hours "prescribed in this award" within the meaning of clause 6(e) (1). The word "prescribed" is not used in clause 6(e) (i) as a term of art; it has its ordinary meaning namely, written or laid down as a rule to be followed: Shorter Oxford Dictionary.

The Award is to be construed according to the ordinary and natural meaning of the words used, but the Court "must always be careful to avoid a too literal adherence to the strict technical meaning of words, and must view the matter broadly, and after giving consideration and weight to every part of the award, endeavour to give it a meaning consistent with the general intention of the parties to be gathered from the whole award.": B o . 0 A. ond 1 v. WKenzie [l9291 AR(NSW) 499 at 503-504.

The words "full-time basis" in the context of clause 6(e)(i) when given their ordinary and natural meaning refer to the amount of time which the employee is devoting to his employment. Ordinarily, whether a person is engaged in a pursuit on a "full-time basis" is a question of fact which involves judgments of degree to be decided in all the circumstances. A person will be so engaged if, during the relevant period, the person applies so much time to the pursuit that his or her commitment is full-time in the

ordinary meaning of those words: see Harradine v. Bcretarv,

PItP f o - (1989) 87 ALR 305 at 313, 318.
In my opinion the words in parenthesis which follow "on a full-time basis" in clause 6(e) (i) do not alter the ordinary meaning of those words. The words in parenthesis merely serve to indicate that the determinant of whether the employment is on a "full time basis" is the number of hours worked in the manner laid down in the Award.

5 1

In a particular case, the decision whether the hours worked in the manner laid down are such that the employee is working "on a full-tinte basis" will take into account the pattern of the rosters under which the employee works, and the number of hours overall worked each week. In ordinary parlance can the commitment required of the employee to the employment fairly be described as full-time according to current community standards? Viewed broadly this construction in my opinion more closely accords with the general intention of the parties as disclosed by the whole award than the construction contended for by the respondent. The respondent's argument that an employee who regularly works the same shifts as weekly employees and who works between 45 and 60 hours per weekly work cycle, is nevertheless to be treated as other than in "full-time" employment because once each week a shift is deliberately cut short by 6 minutes to disqualify the employee from the benefit which clause 6(e)(i) is intended to bestow, is, at the least, unreasonable. I have no hesitation in concluding that the scope for artificial

,practices like this was not within the contemplation of the parties. Marginal cases are likely to arise where the decision may not be clear cut. That an interpretation of clause 6(e)(i) results in its application to particular cases turning on matters of facts and degree is no reason for rejecting the interpretation even though penal consequences attach to a

breach: m v. m e n & Anor (1986) 64 ALR 195, at 200-201.
5 2

It is clear that many clauses in the Award will depend in their operation on the particular facts the ascertainment of which may involve difficult judgments of degree. Clauses 45 and 49 earlier discussed provide obvious examples. Clause 23(j) provides another example.
In my opinion Mr Argirov, within the meaning of clause 6(e)(i), had worked continuously on a full-time basis for one month by 12 March 1990. And if there could be doubt about the character of his employment at that time, the pattern and total of the hours worked each week for the period from 4 June to 13 August 1990 could leave no doubt that he was by 14 August 1990 an employee deemed to be employed by the week under the Award.
I also consider Mr Koehn prior to the termination of his employment had worked continuously on a full-time baeis for a period exceeding one month within the meaning of the Award.

The respondent further contends that even if it wrongly failed to treat Mr Argirov as employed by the week, no breach of the Award punishable under s.178 occurred as clause 6(e)(i) is not a clause which imposes obligations capable of being
broken. It is submitted that the clause is merely "descriptive" of an employee's status. A failure to recognise the deemed status of an employee would give rise to a breach only if the employer failed to comply with an obligation which was imposed under some other clause of the Award by reason of that status, e.g. by failing to give one week's notice of dismissal as required in the case of a weekly employee under clause 6(c)(i). I reject this submission. A "breach" of an award includes non observance of an award: sub.s .4( 1) of the Act. In my opinion the evidence clearly establishes that the respondent did not observe clause 6(e)(i) in relation to Mr Argirov after 12 March 1990 in that it asserted during this period that he was a casual employee.
It follows that a breach of the Award as alleged by Mr Argirov has been established, in that between 12 March 1990 and 14 August 1990 the respondent failed to treat him as being employed by the week. I shall defer for later consideration the question whether the respondent's dismissal of Mr Argirov on 14 August 1990 without giving him one week's notice or one week's pay in lieu of notice constituted another breach of the Award.

I turn now to the allegations that the dismissals of Mr Argirov and Mr Koehn were harsh, unjust or unreasonable and

therefore in breach of clause 6(c)(v) of the Award which in
material parts reads :
"UNFAIR DISMISSAL
Termination of employment by an employer shall not be harsh, unjust or unreasonable.
For the purpose of this clause, termination of employment shall include terminations with or without notice."

The respondent did not dispute in the case of Mr Koehn, if it

5 4

were held that he was, by clause 6(e) (i), to be deemed to be employed by the week, that his employment was terminated in breach of clause 6(c)(v). This concession was properly made as M r Koehn was not given notice, and, more particularly had the respondent treated him at 14 August 1990 as being employed by the week he would have been accorded the benefit of the respondent's "no retrenchment" policy. In light of the earlier finding that Mr Koehn has not proved membership of the
VBEF no question of penalty in respect of the termination of
his employment arises, but I nonetheless formally find that his termination was in breach of clause 6(c)(v) as this finding is relevant to his claim in the accrued jurisdiction of this Court.
A similar concession was not made in the case of Mr Argirov. But for the matters mentioned below there would be no doubt, in my view, that the termination of his employment was harsh, unjust or unreasonable. Besides the two considerations which applied in the case of Mr Koehn there is

the further consideration that at about 2.00a.m. on 14 August 1990, shortly before Mr Argirov was dismissed, he and Mr Noack

- who was at the respondent's Woodville plant on VBEF business - had been told by Mr Sharkey that his future in the paint

shop would be made known to him later in the week, and that action would not be taken to terminate his employment without
prior notice to Mr Noack representing the VBEF. These

assertions, which I find were made, were deliberate misstatements of the position by Mr Sharkey who was well aware

when he made them that he was shortly to dismiss Mr Argirov. The misstatements were made to avoid the prospect of discussion on the topic with Mr Noack.

The matters which the respondent relies on to avoid a finding that the termination of Mr Argirov's employment was harsh, unjust, or unreasonable are false statements which he made in support of his application for employment. The nature and extent of the falsehoods are serious and Mr Argirov conceded in cross-examination that he misrepresented his past employment as a disclosure of the truth would have revealed his unstable work history. But he says he had no choice as he had pressing financial commitments on a mortgage over his house and required the job. The true position as revealed by his evidence is that he had been unemployed for 6 months before being engaged by the respondent. Working backwards from that period of unemployment he had been: employed for 3 months with Ag Chem; been unemployed for 1 month; been employed for 1 month with Ingham Poultry; been unemployed for

Manos Poultry. None of these employers was disclosed. In 1 month; and before that been employed for 8-9 months by

contrast, Mr Argirov informed the respondent, on his written application for employment, that he had worked at Port Adelaide Auto Repairs from May 1985 to December 1989 as a general hand in the workshop; and before that from February 1983 to February 1985 for Mr Sean West as a spray painter's assistant. He had not worked for these people, who were his friends, for some years. In support of the written assertions

5 6

as to his work history Mr Argirov produced what purported to be a letter from Port Adelaide Auto Repairs, and a letter from
Mr West. The text of the first letter purported to confirm
the duration of Mr Argirov's employment and contained a very
favourable reference. In evidence Mr Argirov conceded the letter had been fabricated by him, The letter from Mr West
was apparently written by the author, but in terms which are clearly intended to mislead by providing confirmation of the false statements about past employment made by Mr Argirov in his application for employment.
I accept the evidence of Mr Gleeson that had the true position been disclosed by M r Argirov when he sought employment his application would have been rejected; and had the company learned of the falsehoods proffered by Mr Argirov on or before 14 August 1990 he would have been instantly dismissed. The Award provides in clause 6(c) (iv) for sununary dismissal without notice for conduct that justifies instant diemiasal.

Counsel for the respondent contends that the conduct of Mr Fugirov clearly justified his dismissal, and in the circumstances the dismissal was not harsh, unjust or unreasonable contrary to clause 6(c)(v).
Counsel for Mr Argirov seeks to answer the submission in two wayar first, he contends that whether a termination of employment is harsh, unjust or unreasonable is a matter to be
decided according to the state of knowledge of the employer at the time of the termination, and regard cannot be had to circumstances coming to the knowledge of the employer later. He relied on the judgments of the Full Court in Greaory v. P h i l i ~ Morris Ltcl (1988) 80 ALR 455 and of Gray J. in Wheeler

v. Phili~ Morris Ltd unreported judgment no. 331 of 1989, 23
June 1989.

In Greaorv v. phili~ Morris Ltd the employee was expelled

from the relevant union. By a local agreement relating to employment to which the employer belonged, membership of the union was a condition of employment. When the employer learned of the expulsion, it terminated the employee's employment. The union later conceded that the expulsion was invalid, and the employee then commenced proceedings alleging against the employer that his dismissal was harsh, unjust or unreasonable in breach of an award clause in terms identical to clause 6(c)(v) in the present case.

In the Full Court counsel for the employee argued that the reason for the dismissal was that the employee had been expelled from the union whereas it was subsequently conceded that the purported expulsion was invalid; it therefore followed that there was no foundation in fact for the dismissal with the result that it must be characterised as harsh, unjust and unreasonable. The Full Court rejected this
argument. Wilcox and Ryan JJ. at p.471 said :
"We cannot accept this submission. The question whether a dismissal is harsh, unjust or unreasonable must be determined in the light of the facts as they appear at the relevant time. We accept that, if the relevant facts are not clear, it is the obligation of an employer bound by a provision such as cl 6(d)(vi) to establish those facts before dismissing an employee: cf the observation of Lord Mackay of Clashfern in Smith v Citv of Glasaow District CounciL [l9871 IRLR 326 at 329: 'As a matter of law a reason could not reasonably be treated as sufficient reason for dismissing Mr Smith when it had not been established as true nor had it been established that there were reasonable grounds upon which the special committee could have concluded that it was true."'
In Wheeler v. Philip Morris Ltd, Gray J. said at p.64 :
"Under the earlier law relating to wrongful dismissal, it was open to an employer to justify a dismissal retrospectively, by reference to facts not known to the employer at the time of the dismissal, but discovered subsequently, or by reference to a correct analysis of facts which were known, but which were analysed incorrectly at the time of the dismissal. It is clear from the judgments in Greaorv v. PhiliD Morris (1988) 80 A.L.R. 455 that cl.6(d) (vi) of the Award does not permit that sort of approach. It is necessary to look at the circumstances known to the employer, and to ask whether the employer acted reasonably in the light of them, and particularly whether the employer discharged adequately the obligation to investigate the facts."

On these passages from the judgments it is contended that the respondent cannot, as a matter of law, rely on the falsehoods

by Mr Argirov of which it now has knowledge as these were not known to it on 14 August 1990. If the Full Court in sreaory
. .

v. m l i ~ Morris Ltd intended to lay down the principle that after-acquired knowledge of facts in existence at the date of the dismissal could never be used to justify retrospectively a dismissal, such a principle could have strange, and I venture to think astonishing, consequences. To take one example the dismissal of an accountant who had held a position of trust with the employer could not be justified on the ground of dishonesty if it were discovered after the dismissal that he had been systematically embezzling money from the employer. In my opinion the Full Court did not lay down such a principle, and the passage cited above from the judgment must be understood in the context of the particular facts of the case. In my opinion the general statement of principle adopted by Wilcox and Ryan JJ. is not to be found in that passage, but earlier in their judgment where they said at
p.471 :
"However, cl 6(d)(vi) is not addressed to the question of termination of employment in the abstract. It is intended to deal with actual industrial situations, requiring that a termination of a particular individual shall not be harsh, unjust or unreasonable. The application of the paragraph requires consideration of the circumstances of each case, as they exist when the decision is taken to terminate the particular employee."

In Greaory v. Phili~ Morris the circumstances as they

existed when the decision was made included the circumstance that both the employer and the employee reasonably believed
that the employee's dismissal from the union was valid and
effective; in light of that knowledge the decision of the
Court is readily understandable.

In the example given of the embezzling accountant, the circumstances as they existed at the date of dismissal were that embezzlement had occurred but by reason of the concealment and falsehood of the accountant that fact had not
6 0

yet come to the knowledge of the employer. On a later review of the decision, after the embezzlement has come to light, the circumstances as they existed when the decision was made would include the embezzlement. In my opinion it is still open to an employer to justify a dismissal by reference to facts not known to the employer at the time of the dismissal, but discovered subsequently, so long as those facts concern circumstances in existence when the decision was made. Whether the decision can be so justified will depend on all the circumstances. A circumstance, likely to favour the decision to dismiss, would be that fraud or dishonesty of the employee had caused or contributed to the employer's state of ignorance. A circumstance likely to weigh against the
decision would be that the employer had failed to make reasonable inquiries which would have brought existing facts to its knowledge before the dismissal occurred. I am unable to agree with Gray J. that the reasoning in the Full Court in aeaorv v. m l i ~ Morris does not permit this sort of

approach. In my opinion the respondent is entitled to set up application for employment even though it learned of them only

the falsehoods and dishonesty of Mr Argirov in relation to his
after the dismissal.

The second ground on which counsel for M r Argirov seeks to overcome the consequences of the falsehoods is to argue that whilst they were serious when made, they were made out of financial necessity, and by 14 August 1990 were offset by Mr Argirov's hard work for the respondent in the meantime, and his apparently successful progress towards completion of his training as a spray painter. I cannot accept that submission.
I can envisage cases where a false statement made in support

of an application for employment would with the passage of time become insignificant, but this is not such a case. The nature and extent of the fraudulent misrepresentations which induced the respondent to employ him were most serious, and the duration of his employment was short. In my opinion the fact of the dishonesty, apart from considerations arising under clause 6(c)(v), fully justified the dismissal: cf Efintina Industrv EmDloveeS Union of Australia v. Jackson and QVSullivan Ptv Ltd (1957) 1 FLR 175. The lawfulness of the dismissal under the general law does not necessarily mean that the dismissal may not in all the circumstances be harsh, unjust or unreasonable under an industrial law like clause 6(c) (v) which applies to all dismissals, lawful or unlawful: E. v. The Industrial Court of South Australia: ex ~ a r t e

w r a l Motors-Holdens Ptv Ltd (1975) 10 SASR 582. However the lawfulness of the dismissal is a relevant consideration in
determining whether the dismissal was harsh, unjust or
unreasonable. As King C.J. observed in B. v. Industrial

Uurt: ex Darte Mount Gunson Mines Ptv Ltd (1982) 30 SASR 504 at 506 "If it is seen that a summary dismissal for misconduct was lawful because the employee's misconduct provided lawful justification, the employer is a long way towards repelling an

allegation that that dismissal was harsh, unjust or unreasonable". In the present case Mr Argirov's fraudulent misrepresentations are most important circumstances to be weighed with the other circumstances already mentioned. In my opinion the clear inference from Mr Gleeson's evidence is that even if by 14 August 1990 the respondent had acknowledged Mr Argirov as a weekly employee under clause 6(e)(i), and had appointed him as a permanent employee, he would nonetheless have been summarily dismissed on 14 August 1990 had the respondent then learned of the dishonesty. There is no reason in law or in general notions of fair play why Mr Argirov should be able to gain advantage from the fact that his deception had not come to light before his dismissal. In my opinion his dismissal was not harsh, unjust or unreasonable.

Furthermore, I consider his summary dismissal was justified under clause 6(a)(iv). That being so, there was no breach by the respondent as alleged of clause 6(c)(i) which would otherwise have required the giving of one week's notice or payment of wages in lieu. See clause 6(c)(i)(6).

The remaining question concerns the claims made by Mr Argirov and Mr Koehn in the accrued jurisdiction of the Court.
By paragraph 2 of their amended application they seek :
"(a) a declaration that the termination of their respective contracts of employment on 14th August, 1990 was null and void;

(b)

an order for specific performance of their respective contracts of employment with the

respondent. "

The Full Court in Greaory v. Phili~ Morris Ltd at 459, 481
held that this Court has power in a case such as this to deal with all aspects of the controversy between the parties including claims by the employee for specific performance and damages in relation to the contract of employment. The majority of the Court also held that the clause of an Award akin to clause 6(c) (v) was incorporated into the contract of employment: p.480. The same reasoning should be applied in this case. I hold that clause 6(c)(v) formed part of the relevant contracts of employment. The Court considered that there might be cases where in all the circumstances the Court would make an order in the nature of specific performance of a contract of service, although, generally speaking, principle
is to the contrary. The Court said, at p.482 :
"We would not wish to give any endorsement to the view that there may never be an order in the nature of specific performance of a contract of employment. But the making of such an order is a matter within the discretion of the court. Where such an order is sought, careful consideration must always be given to the likely consequences of the order. The evidence in the present case suggests that industrial difficulties would occur if Gregory were now to be re-employed. Each of the traditional reasons for denial of specific performance -

of supervision of the relationship - applies in this a loss of confidence between the parties and the problem
case. "

In that case an order for specific performance was refused, and the Court held it was inappropriate to make a declaration by way of alternative relief in the absence of an order for specific performance.
In the case of Mx: Argirov I have held that his dismissal
6 4

was justified and was not harsh, unjust or unreasonable, so no question of consequential relief arises. Even if I am in error about the dismissal in my view this is not a case where it would be appropriate to make an order for specific performance. In particular, antagonism which he has displayed towards the respondent and Mr Gleeson at gatherings outside the respondent's Woodville plant since his dismissal shows that a relationship of confidence could not be re-established.

In the case of Mr Koehn I have held that his employment was terminated in breach of clause 6(c) (v) of the Award. It follows that the termination was in breach of his contract of employment. At the time when his dismissal occurred he did not immediately protest the validity of his dismissal. It was not until 3 October 1990 that he was joined in these proceedings, it seems very much as an afterthought on the urging of the other applicants. On the ground of delay in seeking specific performance I would refuse the order, quite apart from other considerations. There is however another

offered by Mr Gleeson (on hearsay) and by Mr Cameron, were reason. Although many of the criticisms about Mr Koehn

shown by the evidence to be of little significance or the result of justified frustration by Mr Koehn over errors in the time records of the respondent, an attitude displayed by Mr Koehn in the witness box towards the respondent left me with the impression that a relationship of confidence between the parties would not be re-established if he were re-employed. In my opinion, in the exercise of the Court's discretion an order in the nature of specific performance should be refused. No claim in the alternative for damages is made. It would be inappropriate to make a declaration which will serve no useful purpose.
For these reasons the orders of the Court will be :
1. On the application by Mr Lane :

(a) The Court finds that the respondent in breach of
clause 34 of the Vehicle Industry Award 1982 did on
28 September 1990 refuse an inspection of its time
and wages record by a duly accredited official of
the VBEF at the respondent's Woodville plant.

(b) The imposition of penalty for the said breach of
clause 34 will be listed for further consideration
on a date to be fixed.
(c) The claims for the imposition of penalties for
alleged breaches of clauses 45 and 49 of the said
Award are dismissed.
2. On the application by Mr Argirov :

(a) The Court finds that the respondent, in breach of
clause 6(e)(i) of the said Award, did between 12 March and 14 August 1990 fail to treat Aleksander Argirov as being employed by the week.

(b) The imposition of penalty for the said breach of
clause 6(e)(i) will be listed for further
consideration on a date to be fixed.
(c) The claim for imposition of penalties for alleged

breaches of clauses 6(c) (i) and 6(c) (v) of the said
Award are dismissed.

(e) The claim for remedies based on breach of the
contract of employment is dismissed.

3. On the application by Mr Koehn :

(a) The claims for the imposition of penalties for

breaches of clauses 6(e) (i), 6(c)(i) and 6(c)(v) of
the said Award are dismissed.

(b) The claim for remedies based on breach of the
contract of employment is dismissed.
I certify that this and the
preceding pages are a
true copy of the Reasons
for Judgment of M r Justice
von Doussa
Associate: $LrL ,qGr/'bl a

Dated: G ()cc c[

Counsel for the applicants : Mr H. Borenstein
Solicitor for the applicants : Duncan Groom Hannon
Counsel for the respondent : MS C.M. Branson

Solicitor for the respondent : Baker O'Loughlin
Dates of hearing : 24, 25, 26, 29, 30 & 31
October 1990

GROUP PTY LTD (trading as =ALLOY	WHEELS)
VON DOUSSA J. ADELAIDE 6 DECEMBER 1990

IN THE FEDERAL COURT OF AUSTRALIA	) )
SOUTH AUSTRALIAN D	ISTRICT REGISTRY )

JUDGE MAKING ORDER	VON DOUSSA J.
WHERE MADE	ADELAIDE
DATE OF ORDER	6 DECEMBER 1990
THE COURT ORDERS THAT:

and wages record by a duly accredited official of	28 September 1990 refuse an inspection of its time
the Vehicle Builders Employees Federation of Australia at the respondent's Woodville plant.

(b)	The imposition of penalty for the said breach of clause 34 will be listed for further consideration on a date to be fixed.
(c)	The claims for the imposition of penalties for alleged breaches of clauses 45 and 49 of the said Award are dismissed.

aspects of his evidence than I have with the witnesses already mentioned. Mr Noack at times showed a tendency to advance the applicants' cause in a less than objective way, and I doubt the reliability of his recollections surrounding the execution of Mr Koehn's application for membership of the VBEF. The evidence of Mr Argirov, and Mr Sharkey, the Manufacturing	Manager of the ROH Alloy Wheel Company, is more difficult to	evaluate. Much of their evidence is corroborated by other
witnesses and to the extent that it is I accept it. But each man has been shown to have resorted to knowingly false etatements, in the case of M r Argirov about his application for employment, and in the case of M r Sharkey about the respondent's intentions in the early hours of 14 August 1990 as to the future employment of M r Argirov. Mr Argirov was prepared to lie and forge a document to further his own
interests, and Sharkey to lie in circumstances where he perceived that his employer's interests would be best served by him doing so. Both men were frank in the witness box about their behaviour and I do not think their evidence should be discarded in its entirety as unreliable, but, as I have said, I am only prepared to act on it where it is corroborated by other evidence, or constitutes a statement against the interest of the maker.
I shall deal first with the breaches of the Award prosecuted by M r Lane. Clause 45 was inserted into the Award on 11 March 1986 (print no. G2304), and clause 49 was inserted on 15 December 1989 (print no. 50725). The clauses have their genesis in the Termination Change and Redundancy Case (1984) 294 C.A.R. 175. Clause 45 reads :

(a) (i) Where an employer has made a definite decision	to introduce major changes in production,
program, organisation, structure or technology that are likely to have significant effects on employees, the employer shall notify the
employees who may be affected by the proposed changes and their union.

(f)	in breach of Clause 45(a)(i) of the Award, did fail to notify its employees who may be affected and their unions, and in particular with Argirov, Koehn and their union, the VBEF, of the respondent's decision in August, 1990 to make major changes in production, program, organisation or structure at its Woodville plant, that were likely to have significant effects (as defined in the said Clause) on employees;
(g)	in breach of Clause 45(b)(i) and (ii) of the Award, did fail to engage in discussions with its employees affected and their unions, and in particular, Argirov, Koehn and the VBEF, in relation to the introduction in August, 1990 of the major changes referred to in sub-paragraph (f) above, the effects the said changes were likely to have on employees and measures to avert or mitigate the adverse effects of such changes on employees;
(h)	in breach of Clause 45(b)(iii) of the Award, did fail to provide its employees, and in particular, Argirov and Koehn, with all relevant information about the changes in August, 1990 referred in paragraph (f) above, including the nature of the changes, the expected effects of the changes, on employees and any other matter likely to affect employees;

diminution of job opportunities, job tenure or promotion opportunities, the alteration to hours of work, the need	for retraining or transfer of employees to other
locations and the restructuring of jobs.
Consultation regarding the introduction of change would include the effect such changes are likely to have on employees and measures to avert or mitigate the adverse effects of such changes on employees."

(b)	The time occupied by an employee in filling in any time record or cards or in the making of records shall be treated as time of duty but this does not apply to checking in or out when entering or leaving the employer's premises.
(C) (i)	The time and wages record shall be open for inspection to a duly accredited union

"Uren	Alright, I hear what you're saying Paul. Again I refer you to this correspondence here and until this matter is resolved as laid down here, we cannot at this stage comply with your request.
Noack	So you won't let me have a look at the time sheets and won't let me have a look at the...
Uren	No, as I said, we've received correspondence here and that's quite clear. That's laid out to you, it's been sent to you by this organisation. You tell me you've received it, we faxed it to you the other day, quite some
time ago by the looks.
Noack	What we're saying Noel is that the company really in our opinion, doesn't have a right to prevent us because the Award is the Award irrespective of anything else. The Award states that the accredited officer has the right to come in and inspect those time sheets because we have a right to check that Award to see if it's been breached or not.
Uren	... As I said we could stand here all day, you've received the letter Paul, that's it I can't say anything more than that until someone gives me further directions."

Woodville plant, which housed the central pay records and time	sheets, constituted for relevant purposes "the employer's
office".
A vigorous attempt was made by counsel for the applicants to establish that pieces of paper, being computer print outs and other piecemeal records, recording daily and weekly times, would have been available in the OE Machine Shop which operated at all hours, and that these pieces of paper

I am therefore satisfied that when Mr Noack attended the did not do so during the hours specified in clause 34(c) (i).	respondent's premises for the purposes of his inspection he
However that conclusion is not the end of the matter. It is plain from the discussion which occurred between Mr Uren and
Mr Noack that inspection was being refused, not because of the
time, but for other reasons, and that even if Mr Noack were to "stand here all day" the refusal would be maintained. That refusal in my opinion was, in the circumstances of this case, a refusal contrary to the provisions of the Award. The point
is covered by the decision of the Full Court in Menelinq

constituted by refusal to comply with a demand or request	"However, in our view, a breach of a term of an award
may arise in one of two ways. It is most commonly proved by establishing a failure to perform the obligation at, or within, the time stipulated by the request or demand in accordance with the term of the award. Secondly, it may arise from an explicit statement by a party to the award that he will not perform his obligation thereunder. Such a statement does not have the consequences imported by the law of contract where one party accepts what is sometimes called an 'anticipatory breach' by another party. Accordingly, an applicant under s.119 of (the Conciliation and Arbitration Act 1904), who relies on such a refusal to perform in the future an obligation imposed by a term of an award, runs the risk of the respondent's adducing evidence that he resiled from the anticipatory refusal before the time for performance had arrived. Where, as in this case, no evidence of that
kind is adduced, the Court is entitled to presume, as the learned trial judge apparently did, that the unequivocal refusal continued up to the time fixed for performance."

Rules 20(a) and 20(b) in part reflect the requirement of the general law for admission of a person to membership of an	association. There must be an application to become a member	from the person seeking membership, and an acceptance thereof
by or on behalf of the association. Ordinarily these
fundamental steps would not require any particular formality. However paras. (a) and (b) of r.20 by their terms specify formalities. The question is whether these formalities are essential to validity or are merely directory.

exists in fact, is the person whose details appear on the	procedure is to ensure that the person applying for membership
application form, and is an eligible person not of general bad character. The procedural formalities are important, and the requirement in r.20(a) that the eligible person seeking membership "shall" sign a completed application form in the presence of one of the prescribed persons should, in my opinion, be construed as mandatory.

Assistant Secretary shall carry out the duties of the	"17...In the absence of the General Secretary, the
General Secretary..."

satisfied that the decision to dismiss Mr Argirov was made by	initially made in this Court was not proceeded with, and I am
the respondent before it was notified of his appointment.
I accept Mr Noack's evidence that Mr Argirov's nomination for appointment as a shop steward was approved by the Branch Executive of the VBEF on 1 August 1990, and that his appointment was ratified at a monthly meeting of members held on 8 August 1990. A proposed circular for distribution at the

was a person authorised to act as a witness for the purpose of	r.20(a). A person acting as an authorised officer for the
purposes of r.20(a) when seeking enrolment for membership of an organisation registered under the Act is, in my view, fulfilling a capacity that is sufficiently public in its nature to attract the operation of the maxim omnia praesumuntur rite et solemniter esse actq: see B. v. Whitaker [l9141 3 KB 1283 at 1296 and Hardess v. Beaumont [l9531 VR 315 at 318-319. Here there is Mr Noack's evidence about past
practices, not only on his part of so acting, but of applications obtained by him being completed, in some cases, by the General Secretary. The Court is entitled to act on the presumption arising from the past conduct that in so acting Mr Noack was properly performing that function with the necessary authority, in the absence of proof to the contrary. See also

duties of Acting Secretary when he completed	Argirov's
certificate of membership.

[1990] FCA 693

6 Dec 1990

Further, it is not proved that he validly signed an	application for membership form, and there is no evidence from
which it may be inferred that an application for membership by him was accepted by the organisation otherwise than under r.2O(b). The respondent had not been advised prior to his dismissal that Mr Koehn claimed to be a member of the VBEF. Union dues were not deducted by the respondent from his salary.

monthn. The respondent contends that if the employee during a	period of four weeks works less than 38 ordinary hours in any
one week in that "month" the deeming provision in clause 6(e) (1) is not invoked. This is so even if in the week where less than 38 ordinary hours are worked, the employee works numerous hours for which overtime rates are paid.
The applicants on the other hand contend that if an employee engaged and paid as a casual employee is regularly

16/7/90	6	37.9	17.4	55.3
23/7/90	5	36.4	6.7	43.1
30/7/90	6	35.5	24.1	59.6
6/8/90	5*	30.3	2 0	50.3

weekly hours elsewhere prescribed in this award)" contains	The expression "full-time basis (i.e. the total daily and
within it the only express indication of the meaning "full- time basis" to be found in the Award. The respondent contends that the only daily and weekly hours elsewhere "prescribed" in the Award are to be found, relevantly, in clause 18. But clause 18, like clause 17 which deals with day workers, provides that the ordinary hours of work shall average 38

reasonable overtime at overtime rates. Where an employer so	"employee" (which includes a casual employee) to work
requires I consider the overtime hours worked are hours "prescribed in this award" within the meaning of clause 6(e) (1). The word "prescribed" is not used in clause 6(e) (i) as a term of art; it has its ordinary meaning namely, written or laid down as a rule to be followed: Shorter Oxford Dictionary.
The Award is to be construed according to the ordinary and natural meaning of the words used, but the Court "must always be careful to avoid a too literal adherence to the strict technical meaning of words, and must view the matter broadly, and after giving consideration and weight to every part of the award, endeavour to give it a meaning consistent with the general intention of the parties to be gathered from the whole award.": B o . 0 A. ond 1 v. WKenzie [l9291 AR(NSW) 499 at 503-504.
The words "full-time basis" in the context of clause 6(e)(i) when given their ordinary and natural meaning refer to the amount of time which the employee is devoting to his employment. Ordinarily, whether a person is engaged in a pursuit on a "full-time basis" is a question of fact which involves judgments of degree to be decided in all the circumstances. A person will be so engaged if, during the relevant period, the person applies so much time to the pursuit that his or her commitment is full-time in the

I turn now to the allegations that the dismissals of Mr Argirov and Mr Koehn were harsh, unjust or unreasonable and	therefore in breach of clause 6(c)(v) of the Award which in
material parts reads :

v. Phili~	Morris Ltd unreported judgment no. 331 of 1989, 23
June 1989.

On these passages from the judgments it is contended that the	respondent cannot, as a matter of law, rely on the falsehoods
by Mr Argirov of which it now has knowledge as these were not known to it on 14 August 1990. If the Full Court in sreaory

existed when the decision was made included the circumstance	that both the employer and the employee reasonably believed
that the employee's dismissal from the union was valid and
effective; in light of that knowledge the decision of the Court is readily understandable.
In the example given of the embezzling accountant, the circumstances as they existed at the date of dismissal were that embezzlement had occurred but by reason of the concealment and falsehood of the accountant that fact had not

of supervision of the relationship - applies in this	a loss of confidence between the parties and the problem
case. "