McManus, Timothy James v A Ravi (Builder) Pty Ltd

[1984] FCA 102

IN THE FEDERAL COURT OF AUSTSLIA	)
1
WESTERN AUSTFALIA DISTRICT REGISTRY	) W.A. No. 6 of 1984
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DIVISION INDUSTRIAL )

TIMOTHY JAMES McMANUS Applicant

and

. .

A. RAVI (BUILDER! DTY. LTD. Respondent

CORAM: Northrop J.

PLACE	:	Perth
-	DATE :	4 April 1984
EX TENPORS REASOYS FOR JUDGMENT

This cpplicaticn has as its genesis what is

described by Toohey J. as the "saga of the Building Workers

Industrial Union of Australia ('the B.W.I.U.') an

organization under the Conciliation and Arbitrat~on	Act
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1904 " : see reasons for judgment in Leslie v . B.W.I.U.,

Matter W.A. No. 3 of 1984, 12 Narch 1984, unreported. m e

background facts to the present application are set out in

l

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those reasons for judgment and need nct be repeated, but they

must be remembered for the purposes of the reasons about	to
be given.

The applicant is a member of the B.W.I.U. He

recognizes and adheres to the Western Australian Carpenters

and Joiners, Bricklayers and Stoneworkers Industrial Union of

I

Workers, State Branch of the Building Workers Industrig1

Union of hustralia ( "the Branch"). He does not recognize and

does not adhere to the Western Australian Carpenters and

Joiners, Bricklayers and Stoneworkers Industrial Union of

Workers, a union registered under the Industrial Arbitration

' Acts. of the State of Western Australia ("the State Union").	-
The dispute between the Branch and the State Union
constitutes the matter in litigation before Toohey J. That
matter is due to come on for hearing in May 1984. In the
meantime, disputation between members of the B. W. I.U. as to

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which is the lawful branch of the B.W.I.U. in Western

AustraIia continues resulring in mdustrlal difficulties ar1s.inT on construction sites. This appllcation arises from

one of those industrial difficulties arising on the

construction site, the St. Tames Library site, where the

respondent employs a number of members of the B.W. I.U.,

including the applicant. The conditlons of employment of

those persons is regulated by the National Building Trades Construction Award 1975, an award of the Conciliation and

Arbitration Commission under the Conciliation and Arbitration

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Act 1904. The B.W.I .U. and the respondent are ach par t ies

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t o t h a t award and thus they are bound by i t s terms. A l l t h e

r e l e v a n t employees mployed by the r e sponden t a t the S t .

James Library si te a r e members of t h e B.W.I .U. , b u t a

malor i ty of them recognize and adhe re t o t he S t a t e Branch,

w h i l e the appl icant recognizes and a d h e r e s t o t h e Branch.

On Thursday, 29 March 1984, t he bu i ld ing supe rv i sc r

employed by the respondent a t t h e s i t e t o l d t h e a p p l i c a n t

t h a t on Monday, 2 Apr i l t he re would be a show of cards and

t h a t anyone who d i d n o t 'have a union t l c k e t t h a t b e l o n g e d t o

the- 108 Beaufort Street union would not be allowed t o work on

t h e s i t e . The re ference to the Beaufor t S t ree t un ion i s a

re ference t o the S t a t e Union. The purpose of t h e show of

c a r d s w a s t o prove t h a t e a c h employee was a f i n a n c i a l member

of t h e B.W.I.U. Those members who had paid their dues t o t h e

S t a t e	Union	were	able	t o prove	t h e l r membership	of	t h e
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B-W.I.'U. by production of the appropr ia te card i ssued by t h e

State Union. Those members who had paid their dues t o t h e

Branch could produce a card lssued by t h e Branch b u t no t one

t h a t was issued by the State Union.

On Monday, 2 April 1984, the applicant produced a

card issued by t h e Branch b u t s ince he did not recognize or

adhe re t o t he S t a t e Union and had not paid his dues to the

S t a t e U n L q h e was unable to produce a card i s s u e d by t h e

S t a t e Union. A s a r e s u l t , t h e a p p l i c a n t was t o l d by t h e

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r e p r e s e n t a t i v e o f t h e r e s p o n d e n t h a t h e would n o t be

employed. Thereafter he not as been employed by t h e

respondent. He has not received any wages.

On 3 A p r i l 1984, the appl icat ion w a s i s s u e d ou t of

the Federal Court and pu r suan t t o an order of the Court the

d i r ec t ions hea r ing was f i x e d f o r 10.15 a.m. t h i s morning, 4

A p r i l 1984. By t he app l i ca t ion , and I shou ld i nd ica t e t ha t

leave is g i v e n t o amend t h e a p p l i c a t i o n t o the form contained

i n a minute of proposed amendment handed to t he Cour t this

morning, t he app l i can t is seeking the fol lowing orders :

“l- That the bovenamed Respondent has

endeavoured t o dismiss t h e abovenamed

Applicant from h i s employment and

2, Has o t h e r w i s e i n j u r e d h i m h i s i n

employment o r a l t e r e d hls p o s i t i o n t o h i s

- p r e i u d i c e i n c o n t r a v e n t i o n o f S e c t i o n

5(1) of the Conci l ia t ion and Arbi t ra t ion

Act 1904. -.-

3. That t h e abovenamed Respondent intends t o

c o n t i n u e t o i n j u r e t h e A p p l i c a n t i n h i s

employment o r t o a l t e r h i s p o s i t i o n t o

h i s p re jud ice in con t r aven t ion o f Sec t ion

5(1) of	t h e C o n c l h a t i o n	and	Arb i t r a t ion
A c t 1904.

AND THE APPLICANT CLAIMS by way of

i n t e r l o c u t o r y and f i n a l r e l i e f : -

1- An o r d e r t h a t t h e R e s p o n d e n t be

r e s t r a i n e d from dismissing the abovenamed

App l i can t f rom employmen t h i s o r

o therwise in jur ing h l m i n h i s employnent

o r a l t e r i n g h i s p o s i t i o n t o h i s p r e ~ u d i c e

i n contravention of Sect ion 5 (1) of t h e

Conciliation and Arb i t r a t ion A c t 1904.

. ..

'.	,-:,
. .

r	. I,
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4,

The claim for interlocutory relief was heard this morning and

fuzther submissions were made on behalf of the applicant this

I .

, A . : afternoon L

- . I 1 . -./ L

_, , .-G _. . . I I :.L '

I ,

_ - , 'r , .. <~;,

~_ I .S-:';.

~ L .	. I ... :	:Under the provisions	of sections 109 and 118A	of
I.-

,.

the Conciliation and Arbitration. Act and s.19 of the Federal

Court of' Australia Act 1976, the Federal Court is empowered

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to en-jbin an organization or person from committing or

I

.

. .

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dontinuing . a contravention of the Conciliation and

. .I

_ L . ._ ._ , - (.' .

. Arbitrakion Act.,

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. . .., :., ;; .I.\. :I -;. ,. -

1 ;.I I. - ._

' tkat-.th&.'.;respondent , has committed and is continuing a

.	I
--"5-(1A) An employer shall not threaten to
I '.

, ' :dismiss an employee, or to injure him in his

' L employment, or to alter hls position to his

, ' % - 1 : prejudice--

. . . , . . ~ . .

(X) by reason. of the circumstance that the

employee is, -or proposes to become, an

officer, delegate or member of an

organization, or cf an association that

- has applled to be registered as an

\ocg.anization, - or that the employee

proposes to appear as a witness or to

give evidence in a proceeding under this

Act: or ...

Penalty: $400. "

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Since the present proceedings are not for an offence against

s..5, sub-section ( 4 ) of that section has no application.

The applicant contends, quite correctly, that the

civil onus of proof applies and expresses his claim in either

one of two ways: first, that the respondent, as employer,

has inlured him, as employee, in his employment by reason of

the circumstance that he is a member of an organization,

~

namely the B.W.I.U.; secondly, that the respondent, as

employer, has altered his, as employee, position to his prejudice by reason of the circumstance that he is a member

of an organization, namely the B.W.I.U.

In order tu determine the application it is

necessary to determine, as a first step, whether there is a

serious question to be tried: see Mr. Justice Gi’obs, the

Chief Justice of the High-Court of Australia, in Australian

Coarse Grain Pool Proprietary Limited v. Barley Marketinq

Board of Queensland (1982) 4 6 A.L.R. 398. Section 5 ,

Conciliation and Aribtration Act, has been considered in a

number of authorities, but for present purposes reference is

made to o n e of those authorities only, namely Heldt v.

Chrysler Australia Limited (1376) 26 F.L.R. 257. In that

case, Chrysler Australia Limited had dismissed Heidt, one of

its employees, and Heidt claimed that Chrysler Australia

Limited had dismissed him by reason of the circumstances that

he- was, (a) a member of an organlzation as defined in the

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Concillation and Arbitration Act 1904; or (b) entitled to the benefit of an industrial award as defined in the Conciliation and Arbitration Act; or (c) a member of an organization as defined in the Conciliation and Arbitration

Akt which was then seeking better industrial conditions and

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that he,. Heidt, was dissatisfied with his condition, all

contrary to S-5 Conciliation and Arbitratlon Act. L

In giving reasons for judgment I said at pp.266-7:

“The principles of law to be applied to the

facts of this case are clear. Section	5 is
designed to protect organizations, in this

case an organization of employees, and to

ensure that they are able effectively to carry

out their functions within the scope of the

provisions of the Act. The provisions of the

Act permitting the registration of

associations as organizations have been held

to be valid as being incidental to the power

conferred by S -51 (xxxv) of the Constltution.

See Jumbukna Coal Mine, No Liabllity v.

Victorlan Coal Miners’ Associatlon ((1908) 6

C.L.RI 309). Section 5 imposes a penalty on-

an employer if the employer dismisses or

otherwise adversely affects an employee	by
reason of the employee‘s connection wlth an
organlzation. Further, where an employer	is

convicted of an offence against S . 5 , the court

is empowered to make ancillary orders and give

other dLrections for the benefit	of	the
employee.

The action of the employer qua the employee 1 s

prohibited only lf it is by reason of any one

or more of the circumstances enumerated ir

pars .. (a) to ( f ) lnclusive of s.5 (l) of the

Act. The circumstances in this sense are the

facts by reason of which the employer takes actlon against the employee. An employer may have many reasons for taking the action. In

order to estzblish an offence under s.5, it is

not necessary for the informant	to establish
that the reason allegec! was the	only or sole

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reason actuat ing the employer; the ason

alleged need not be the predomlnant reason:

' . . . it is enough i f i t i s an operat lve

r eason , t ha t i s t o s a y , a subs t an t i a l r ea son

l n t h e t o t a l l t y o f r e a s o n s - . . I . See Barwlck

C..J. i n Mikasg (W.S.W.) P t y . L t d . v . F e s t i v a l

S tores ( (1972) 127 C.L.R. 617, a t p.635).

where the Chief Jus t ice was cons ider ing the

express ion ' fo r the reason tha t ' conta ined in

s .66B(Z)(d) of the Trade Prac t ices Act 1965.

See also Stephen J. ( ( 1 9 7 2 ) 1 2 7 C.L.R. a t

pp.656-659).

The Industr ia l Court (per Smithers and Evat t :

JJ.) i n Bowlinq v. General Motors-Holdens Pty.

- L t d . ( ( 1 9 7 5 ) A A . L . R . , a t p.200) has expressed

the e f f e c t o f s.5 m this way: ' Reading

s.5(4) as p a r t o f s.5 t aken a s a whole, we a r e

of op in ion tha t a p a r t l c u l a r a c t l o n t a k e n by

a n employer may be s a l d t o have been actuated

by a pa r t i cu la r - r eason o r C i rcums tance i f t ha t

reason or circumstance was a s u b s t a n t i a l and

opera t ive f ac to r i n f luenc ing him t o t a k e t h a t

ac t ion . F u r t h e r , an employer may be ' s a i d t o

have been actuated by a p a r t l c u l a r r e a s o n i f

it was a s u b s t a n t l a l and ope ra t ive f ac to r

in f Iuencinq h i m to t ake tha t ac t ion , a l though

t h a t r e a s o n w a s b u t one of a number of reasons

which so inf luenced h lm' . See a l s o Cuevas v.

Freeman Motors L t d . ( ( 1 9 7 5 ) 25 F.L.R. 6 7 j . "

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In giv ing those reasons and r e f e r r i n g t o t h e p a r t i c u l a r f a c t s

of that case , I said a t pages 270-1:

"Counsel for the informant d i d not argue that

the defendant had f a i l e d t o p r o v e t h a t , i n

dismissing the informanc, it had not been

a c t u a t e d r b y a s o n of e i t h e r o f t h e

c i rcumstances tha t the informant was a member

of an o rganiza t ion or was e n t i t l e d t o t h e

b e n e f i t of an award. To so araue would have

been f u t i l e . It was a c o n d i t i o n h i s f

employment by the defendant that the inforT.ant

become re and ain a member t h e o f

organiza t ion . The award was bindlnq on t h e

defendant w i t h r e s p e c t t o a l l employees comlnq

wlthin the scope of the award, whether members

of the o rganiza t lon or no t . I f ind t ha t he

defendant , In dismlssing the inforrcant , was

_A

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not ac tua ted by reason of the circumstance

t h a t t h e i n f o r m a n t member was a of an

organization, r eason t he by nor o f

circumstance that t he informant was e n t i t l e d

t o the bene f i t of an award."

r propose to app ly those p r inc lp l e s t o the f ac t s o f

t h i s case. I n my opinion, the a p p l i c a n t h a s f a i l e d t o show

t h a t h e r e i s a se r ious ques t ion t o be t r i ed . To pu t he

mat te r more b lun t ly , t he applicant h a s f a i l e d t o show an

a r g u a b l e c a s e t h a t t h e r e s p o n d e n t h a s c o m m i t t e d o r i s

c o n t i n u i n g a c o n t r a v e n t i o n f s . 5 C o n c i l l a t i o n a d I

Arb i t r a t ion Act

- F o r present purposes , the facts can be t r e a t e d as

not being in dispute . I t i s a condi t ion of employment by t h e

respondent a t its St. James L i b r a r y c o n s t r u c t i o n s i t e t h a t

i ts re l evan t employees a r e f i n a n c i a l members of the B.W.I .U.

, It is bound by the award t o which it and the B.W. I . U . a r e

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p a r t i e s . The i n j u r y o r p r e j u d i c e t o t h e a p p l i c a n t i s not by

reason of the circumstance t h a t h e i s a member of the

B.W.I.U. b u t by reason of the c i rcumstance that he i s not

a b l e t o s a t i s f y t h e r e s p o n d e n t t h a t h e i s a f i n a n c i a l member

of the B.W.L..U, That i s the ve ry an t i t hes i s o f t he o f f ence

c rea ted by s.5 Conc i l i a t ion and Arbi t ra t ion Act . I t i s fo r

t h o s e r e a s o n s t h a t I hold that he appl icant has not been

a b l e t o show a se r ious ques t ion to be t r i e d .

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Accordingl.y, it is not necessary t o consider the

quest lon of the balance of convenience.

Before concluding these reasons, I should express

m y concern about one other matter. Serious questions e x i s t

between d i f f e r e n t f a c t i o n s of mmbers of the R.W. J . U . wi th in

Western Auatraliz. Those cues t lons a r e the s u b j e c t . o f

l l t l g a t i o n l n t he F de ra l Court. The hea3-jng of t h a t

l i t l g a t i o n is t o co:mence next month. I n t h e i n t e r e s t s of

f a i r n e s s aI?d ~ u s t i c e , no member of t h e B.lW.1.U. shoul?i be

adversely af fec ted in his emplopent pending the henrinq and

determinat ion of those ques t ions . It should not be l>eyL?.;nd

reason t o e x p e c t h a t some su i t zb le a r r anqenen t s coulc! be

adopted under which all members of the n.W.I.U., i r r e s p c c t i v f

of whether they r scognise or adhe re t o t he Branch o r t h e

S t a t e Union, should be a b l e t o c o n t i n u e i n t h e i r employment..

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The par t ies should remember t h a t one of t he ch ie f ob -~ec t s of

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organiza t ions i s t o p r o t e c t the i n d u s t r i a l i n t e r e s t s o f t l l e i r

members - This oblect should be observed.

The	a p p l i c a t i o n	f o r	i n t c r l o c u t o r y	r e l i e f	i s
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re fused .