Linehan, D.L. v Australasian Meat Industry Employees Union

[1982] FCA 72

Re: DESMOND LAWRENCE LINEHAN
And: THE AUSTRALASIAN MEAT INDUSTRY EMPLOYEES UNION
NSW No. 27 of 1980
Industrial Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
INDUSTRIAL DIVISION
Evatt J.

CATCHWORDS

Industrial Law - prosecution by Industrial Relations Bureau against registered organization alleging that organization encouraged employer to take action in relation to an employee being the holder of a certificate that his conscientious beliefs do not allow him to be a member of any registered organization which if taken would be a contravention of sub-section (5) of s.144A of the Conciliation and Arbitration Act 1904

HEARING

SYDNEY

#DATE 10:5:1982

ORDER

The information and summons herein be dismissed.

JUDGE1

Desmond Lawrence Linehan (the prosecutor) on behalf of the Industrial Relations Bureau has summoned the Australasian Meat Industry Employees Union (the organization), an organization registered under the Conciliation and Arbitration Act 1904 (the Act) upon information laid on 10 December 1980 pursuant to s.144A of the Act wherein the informant claims that the organization during the month of December 1979 at Inverell in the State of New South Wales contrary to the provisions of s.144A(6)(a) of the Act encouraged Northwest Exports Pty. Limited being the employer of one Michael Mark Foley to dismiss him by reason of the circumstance that he, being a person in respect of whom there was then in force a certificate under s.144A(1) of the Act, was not a member of an organization contrary to s.144A(5) of the Act.

Section 144A(so far as relevant to these proceedings) provides as follows:

(1) Where a person, upon application made to the Registrar in the prescribed form and manner, and payment of the prescribed fee, satisfies the Registrar that the person's conscientious beliefs do not allow the person to be a member of any association of a kind described in a paragraph of sub-section (1) of section 132, the Registrar shall issue to the person a certificate to that effect.

(2) In sub-section (1) -
. . . . . . . . . . . .
"prescribed fee", in relation to an applicant under sub-section (1), means a fee equal to the annual subscription payable by the members of the organization that, in the opinion of the Registrar, is the organization that would, but for the person's conscientious beliefs, have been the appropriate organization for the person to join having regard to his past employment (if any) and his future prospects of employment.

(3) . . . . . . . . . . . . . .

(4) A certificate under sub-section (1) remains in force for such period, not exceeding 12 months, as is specified in the certificate but may be renewed from time to time by the Registrar for such period, not exceeding 12 months, as the Registrar thinks fit.

(5) An employer -
(a) shall not dismiss an employee, or injure him in his employment, or alter his position to his prejudice, by reason of the circumstance that the employee, being a person in respect of whom there is in force a certificate under sub-section (1), is not a member of an organization;
. . . . . . . . . . . .

(6) An organization -
(a) shall not advise, encourage or incite an employer to take action in relation to a person that would, if taken, be a contravention of sub-section (5);
. . . . . . . . . . . . .

(7) . . . . . . . . . . . .

(8) In any proceedings for an offence against sub-section (5) or (6), if all the relevant facts and circumstances, other than the reason or intent of an action alleged in the charge, are proved, it lies upon the person charged to prove that that action was not actuated by that reason or taken with that intent.

(9) For the purposes of this section, an action taken by -
. . . . . . . . . . . .
(e) a member of an organization who performs the function of dealing with an employer on behalf of himself and other members of the organization, shall be deemed to have been taken by the organization.

The prosecutor is and was at all material times the Director of the Bureau appointed under the provisions of Part VIA of the Act. Section 126(a)(5) provides that the Director of the Bureau may, on behalf of the Bureau exercise any power conferred on the Bureau by the Act. Section 126C provides that the Bureau may institute proceedings before any Court of competent jurisdiction for an offence against the Act. Section 191 provides that any person who has committed an offence against the Act may be charged accordingly before the Court and the Court may impose the penalty provided by the Act in respect of that offence and that any such proceedings before the Court may be instituted by summons issued upon information without indictment. The Court referred to is the Federal Court of Australia (see s.118A(1)(a) and (b)).

When the matter was called on for hearing on 14 April 1982 there was no appearance by the organization. When the matter was first listed for directions on 3 February 1981 Mr John McGuire, Solicitor (as he then was) appeared on behalf of the organization. On that day the proceedings were stood over by consent with liberty to either party to restore on 14 days notice. At that time Mr McGuire was a member of the firm of White, Barnes and McGuire, Solicitors. The matter was restored to the list at the request of the prosecutor on 4 February 1982 when Mr McGuire again appeared for the defendant. On that occasion the proceedings were stood over by consent to 10 February 1982 for further directions.

On 10 February 1982 Mr Barnes a solicitor of the firm of White, Barnes and McGuire appeared on behalf of the organization and the matter was fixed for hearing on 28 March 1982 but such date was subsequently altered by arrangement between the parties and the Court to 14 April 1982.

On 22 March 1982 a formal Notice of Appearance reading "The Australasian Meat Industry Employees Union appear" was filed in the proceedings by Messrs White, Barnes and McGuire. On that day a further document entitled, Notice of Withdrawal of Appearance reading "The defendant, the Australasian Meat Industry Employees Union withdraws its appearance" was also filed by Messrs White, Barnes and McGuire.

In addition an affidavit of service of the information and summons herein on the organization by one Michael Anthony Frawley sworn 15 December 1980 was before the Court.

The Court being satisfied that the defendant organization had been properly served with the summons and information herein and that the organization was aware that the prosecution had been set down for hearing on 14 April 1982 then proceeded to hear the prosecution in the absence of the defendant.

The Court is satisfied beyond reasonable doubt that:
(1) the said Michael Mark Foley was employed by Northwest Exports Pty. Limited on and immediately before 21 December 1979
(2) That Northwest Exports Pty. Ltd. was at all material times a company duly incorporated under the Companies Act (N.S.W.) 1961.
(3) That on 21 December 1979 the said Michael Mark Foley was dismissed from his employment with Northwest Exports Pty. Limited.
(4) That on 21 December 1979 Mr Foley was the holder of a certificate issued by the Industrial Registrar under the provisions of s.144A of the Act dated 30th day March 1979, which said certificate was stated therein to remain in force for a period of 12 months from that date.

(5) That one, Graham Thomas Davenport Sykes was on 21 December 1979 employed by Northwest Exports Pty. Limited as acting Works Manager at its abattoir at Inverell and on that date dismissed the said Foley from his employment with Northwest Exports Pty. Limited and at that time he, Mr Sykes was authorised by the said company to so dismiss Mr Foley.

(6) That Mr Sykes at all material times and in particular at the time of such dismissal, was aware that Mr Foley was then the holder of the said certificate issued under s.144A of the Act.

(7) That between 1 January 1979 - 31 December 1979 one, Geoffrey Charles Schroder and one, Barry Richard Emerson then being employees of Northwest Exports Pty. Limited were members of the defendant organization.

(8) That during the month of December 1979 Messrs Emerson and Schroder were delegate and co-delegate respectively of the members of the organization employed within the boning section of the said abattoir and during that month performed the function of dealing with Northwest Exports Pty. Limited their employer on behalf of themselves and other members of the organization.

(9) That in December 1979 and for some years prior thereto Neville Hutton was the Manager of the said abattoir of Northwest Exports Pty. Limited At Inverell.

The prosecutor called as witnesses the following: Messrs Foley, Hutton and Sykes. Evidence which is accepted shows that Mr Foley was first granted a certificate under s.144A of the Act by the Industrial Registrar on 31 March 1978 on condition that he pay an amount of $40 to the Industrial Registrar which sum was at that time the equivalent of the yearly contribution payable by members of the organization in respect of membership fees. Such certificate was expressed to remain in force for 12 months from 31 March 1978. I accept the evidence of Mr Foley that during that twelve months he was approached at work by a representative of the organization with a request that he pay $20 to a mortality fund within the organization and that such sum was then paid by him to that representative for the period July to December, 1978.

Again on 30 March 1979 the Industrial Registrar granted Mr Foley a further certificate under s.144A which was specified therein to remain in force for 12 months on the condition that he pay an amount of money equivalent to the annual contribution payable by members of the organization. He again paid the required amount to the Industrial Registrar. Thereafter during the currency of the second certificate he was again approached at work by representatives of the organization and requested to pay a sum of money to the organization which sum was stated to be in respect of contributions to the said mortality fund. Mr Foley refused to pay this additional money. His failure to pay such moneys apparently became a contentious matter between Mr Foley and the delegates of the organization employed in the boning section at the abattoir who took the matter up first with the manager of the abattoir, Mr Hutton and subsequently in December 1979 with Mr Sykes who was then acting as the manager during Mr Hutton's absence on annual leave.

Extracts of the transcript of relevant parts of the evidence given by Messrs Hutton and Sykes concerning discussions with Mr Emerson and/or Schroder from which it might be inferred that the organization encouraged Northwest Exports Pty. Limited as employer of Mr Foley to take action in relation to him that would if taken be a contravention of sub-s.(5)(a) of s.144A of the Act are set out.

Re Mr Hutton

"Do you recall shortly after 31 March 1978 Mr Foley coming to see you?---Yes.
With a certificate?---Yes.
And he showed you the certificate and discussed it with you?---He give me the certificate. There was a bit of a rumpus going with the union at that stage regarding Foley.
What do you mean a rumpus with the union regarding Foley?---The fact he did not want to join the union.
How was that manifested to you?---Only that I had a conversation with the delegate at that time who was Ray Tanner. When Foley give me the certificate I then relayed it to Tanner that he had a certificate of exemption from the Industrial Registrar. I also rang the Industrial Registrar to find out what it meant and I spoke to Hastings and he filled me in on what it was all about and I give it back to Foley.
When you discussed it with Mr Tanner do you recall what his response was to the fact that Foley had the certificate---Not really. As far as I can see there was no formal discussion of it. It was just the fact I brought it to his notice so he had the exemption.
Did Mr Foley show you the second certificate he obtained?
---No
Were you aware of what the situation was so far as any payment by him to the unions mortality fund?--- No, I was not aware he was paying into the mortality fund.
On about 12 December 1979 did Mr Emerson come and talk to you?---Yes.
Did he see you in what you term was an official capacity? ---Yes.
What did he have to say?---He spoke to me about Foley not paying his dues and I just took it from that because I knew he had an exemption from the Industrial Registrar and it was my view only that he was not paying into the Industrial Registrar. So, anyway I just said to Barry Emerson I would have a talk to him and see what his problem was and see if we could sort it out.
Did you in fact have a talk to him?---No, I did not. Barry Emerson approached me on the Friday, the 14th, and I was going on holidays and I told him that I had not done anything about talking to Foley but I assured him I would speak to Graham Sykes and he would talk to him the following week.
Did Mr Emerson indicate to you what the problem was? Did he elaborate on what the difficulty was about Foley's situation?---No. It was just a broad statement that he had not paid his dues and, as I said before, I took that that he was not going to pay anything into the Industrial Registrar because I was not aware he was paying into the mortality fund either.
Shortly afterwards you went on holidays, did you?---
I went on holidays on the Friday.
Before going on holidays did you have a conversation with Mr Sykes concerning the issue?---Yes.
You remained on holidays until after Christmas?---Yes.
You had no direct part in what happened on 21 December?---
I would have told Graham if there was to be any trouble to suspend his services.
His Honour: Graham being Mr Sykes?---Yes.
. . . . . . . . . . . .
A moment ago you did say and you probably said to Mr Sykes before you went away, if there is any trouble - correct me if I am wrong - if there is any trouble about Mr Foley you can terminate his services?---Yes.
Is that what you said?---That is what I said, yes.
Did you anticipate there might be some trouble. You knew what had happened immediately before you left?--- I did not really know what would happen. The purpose of my saying to Emerson that I would talk to Foley was to try and persuade him to do what was ever necessary to certainly retain his employment, bearing in mind he had been in a situation for probably three years, I guess or 21/2 or whatever, working with these guys with an exemption from the registrar, bearing in mind at that time I was not aware he was paying into a mortality fund anyway and this probably cooled the situation off, I guess."

Re Mr Sykes

"On 14 December 1979 you had a discussion with Mr Hutton?---Yes.
He was leaving to go on holidays?---Yes.
You were left in charge?---Yes.
And the discussion concerned Mr Foley's position with union membership and the mortality fund?---Yes.
And you were in charge from then until Christmas time?---Yes.
Did you immediately have a discussion with Mr Foley or Emerson?---No, it was not until about the middle of the next week.
His Honour: Before you go on too far, on that Friday when Mr Hutton went on holdiays he had a discussion with you about Mr Foley?---Yes.
A question was put to you in a leading form as we call it, and you said yes, do you remember what was said? ---Not word for word but Mr Hutton indicated to me if there was to be any trouble we would have to go by the award and probably have to terminate Michael's services.
Did he say what the trouble was?---Yes, at that stage it was said we imagined the problem was not paying into the Industrial Registrar or the mortality fund but in actual fact the union put it to us, the union said he must buy a union ticket or pay his union dues.
Mr Moore: You said about the middle of the week, after the 14th, you had a discussion with Mr Emerson?---Yes.
Did he approach you?---Yes.
What did he say to you?---He asked me if I had spoken to Michael about his union dues as yet.
What did you say?---I said I have not had the time or words to that effect, I am fairly busy with Neville being away and a couple of foremen on holidays. I indicated I would as soon as I got the opportunity.
Thereafter were you approached again?---The next day yes, and I told him the same thing and on this occasion he said to me - - -
Stop a moment, on the second occasion was he on his own? ---No, in the company of Schroder.
He was on his own the first time in the week following the 14th, but the second occasion?---In the company of Geoff Schroder.
His Honour: Has Mr Sykes nominated a date?---It would be the 20th, on the second occasion, the first occasion it was the 19th.
Mr Moore: On the second occasion who did the talking, Emerson, Schroder or both?--- Emerson mostly from my recollection.
What did he say to you?---He asked if I had a chance to speak to Michael. I said I had not, I would do it that day and he indicated to me, he said Graham, you know if you cannot do something about the problem these people will not work with him.
Who did you take him to mean by these people?---Our people or his members.
Did he specify what the problem was?---He just more or less said he must pay his union dues.
And again you said you would speak to Mr Foley?---Yes.
Did you speak to Mr Foley that day?---I did not, I had every intention of doing so but there again I was on the phone or something at the particular time the boning room finished and by the time I got around to doing it he had left for home that day.
What happened the next day, was there another conversation with Mr Emerson?---. . . . . Immediately after smoko Barry Emerson approached me on his own and said have you done anything about Michael or words to that effect. I said I have not but I will do it straight away.
Did he indicate to you as on the last occasion?---He said the same thing as before, if the problem is not fixed up these people will not work with him.
. . . . .
Mr Moore: I was asking you whether you felt under any pressure from the union through Mr Emerson?---From the way the delegates had spoken to me I had every reason to believe if we could not resolve the problem of Michael I would have a stoppage on my hands.
What alternatives did you feel you were left with as a result of the approach by Mr Emerson?---I think I had to try to persuade Michael. After that it was his own decision to do it, to try and convince him for the sake of relations in the plant between unions and employer maybe he should do the right thing and buy a union ticket or pay his dues.
If you could not do that?---I had no alternative in my mind but then to dismiss him.
His Honour: Why was that your only alternative?--- From my point of view if we as Mr Hutton indicated before, we had followed the award as clearly as you possibly can. The award stated a guy must be a member of a union within 14 days. Union members get preference.
Had it been said to you by Mr Emerson or Mr Schroder at or about this time they had members of the union who were in fact unemployed at that time:---No, that was not mentioned.
. . . . . . . . .
His Honour: I was just wondering whether anything more was said other than that these people, meaning the members, his members, would not work with him?---
There is a possibility that there could have been more conversation, more likely would have been, your Honour, but I cannot honestly remember.
I take it you never had a situation like this before at the abattoir?---We have had occasion where people, we have been approached for people not buying tickets but it has always been resolved where they have become members. I cannot recall the occasions on which it has occurred.
But the men have not gone out?---It has not got to that stage. The person always paid his dues.
As I understand your evidence, at no stage did Mr Emerson or Mr Schroeder - on the 20th I am talking of - say to you, "Well, if Mr Foley does not pay" whatever money he has been asked for, "the members will in fact go out"?---He has not come straight out and said to me, "We will stop work". He just said, "These people will not work with him".

And the same again on the 21st, he did not come straight out, as you say, and say that we are going to sit down. . . .No. The indication was given to me in a round about way.
That if something was not done, that would be the result?---That would be the result, yes.
And the something being done you understood was more than you just speaking to Mr Foley, you either persuade him to pay up - - -?---To pay his dues or they would take industrial action. I felt strongly that they would.
Or - - -?---Or else the other alternative, that I dismiss him.
Was anything said to that effect?---No. They did not ask for his dismissal."

The above evidence does not satisfy me beyond reasonable doubt that the organization through its member or members namely, Messrs Emerson and/or Schroder (see s.144A(9)) took action at any relevant time from which it could be said that the organization encouraged Mr Foley's employer to dismiss him in contravention of sub-s.5(a) of s.144A. It is essential in my view that the prosecutor satisfy the Court beyond reasonable doubt that the organization so encouraged Northwest Exports Pty. Limited.

I am satisfied that at no time did the organization or any of those persons who would be deemed to then be acting on behalf of the organization (s.144A(9)(e)) request Mr Foley's employer to dismiss him nor did it or those persons suggest such action. In these circumstances it is unnecessary to express an opinion as to the meaning of the word "encourage" in paragraph (a) of sub-s. (6) of s.144A of the Act and I refrain from so doing.

The provisions of sub-s.(8) of s.144A have no application in respect of this element of the prosecutor's case.

As the prosecutor has failed to discharge the onus he bears in respect of an essential element of his case the information and summons must be dismissed. Order accordingly.