Myles, Robert Hugh v Hooker Cockram Ltd

[1986] FCA 326

Re: ROBERT HUGH MYLES
And: HOOKER COCKRAM LIMITED
No. V9 of 1986
Industrial Law
16 IR 49

COURT

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIAN DISTRICT REGISTRY
INDUSTRIAL DIVISION
Keely J.

CATCHWORDS

Industrial Law - information for offence - dismissal of employee member of registered organization - part of industry wide dismissal of all members to counter industrial campaign by union - whether dismissal "by reason of the circumstance" that employee was union member - discretionary power to order reinstatement - whether good reason not to order reinstatement - likelihood of industrial action if reinstated - likelihood of reinstatement leading to dismissal of employees with longer service - effect of prosecutor's refusing offer of re-employment - reimbursement of wages lost.

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

HEARING

MELBOURNE

#DATE 24:7:1986

ORDER

1. Hooker Cockram Limited is convicted of dismissing

Robert Hugh Myles on 14 February 1986 by reason of the circumstance that he was a member of the Australian Building Construction Employees and Builders Labourers Federation.

2. Hooker Cockram Limited shall pay a penalty of $150.00.

3. Liberty is reserved to the prosecutor, Robert Hugh Myles, to apply for an order that he be reimbursed wages lost by him.

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

JUDGE1

Robert Hugh Myles (the prosecutor) on 24 February 1986 laid an information under s. 5 of the Conciliation and Arbitration Act 1904 (the Act) alleging that Hooker Cockram Limited (the defendant) on 14 February 1986 dismissed him from its employment by reason of the circumstance that he was a member of the Australian Building Construction Employees and Builders Labourers Federation (the BLF). The defendant pleaded not guilty.

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

2. The evidence has satisfied me beyond reasonable doubt that
   (1) the BLF was on 14 February 1986 an organization of employees registered under the Act.
   (2) the defendant was incorporated at all material times.
   (3) the prosecutor was employed by the defendant as a builder's labourer at the Walter and Eliza Hall Institute site (the site) from about June 1985 until February 1986.
   (4) the defendant was at all material times a member of the Master Builders' Association of Victoria (MBAV), an organization of employers registered under the Act.
   (5) the prosecutor was a member of the BLF at the time when he gave evidence in this matter and had been a member of the Victorian Branch of the BLF since 1976 and was a co-shop steward on the site.
   (6) at all material times the defendant believed that the prosecutor was a member of the BLF.
   (7) on 14 February 1986 the prosecutor was given notice of termination of his employment by the defendant.

3. At or about the same time on 14 February 1986 all other members of the BLF employed by the defendant were dismissed, being given the notice required by the Building Construction Employees and Builders Labourers (Consolidated) Award 1982 (the award). It was common ground that at all material times the defendant - and the employers on sites in the building industry in Victoria generally - required each employee to be a member of an appropriate union and that, by reason of that policy of the employers, which was cryptically called "no ticket no start", all builders labourers at the site employed by the defendant were members of the BLF.

4. Section 5(4) of the Act provides that:-
   
   

"In any proceedings for an offence against this section, if all the relevant facts and circumstances, other than the reason or intent set out in the charge as being 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."

The onus placed upon the defendant is an onus to do so upon the balance of probabilities.

1. The decision to dismiss the prosecutor was made by Leonard Frederick Henry Barlow, the construction director for the defendant. He gave evidence of various campaigns by the BLF in November-December 1985, including a claim for a 35 hour week and for a 3.8% wage increase. He attended an MBAV meeting on 12 February 1986 which carried a resolution that there should be an industry wide ultimatum to the BLF. He voted for the resolution because it "was the only way that we could put effective pressure ... on the BLF ... to lift the bans and get the jobs working properly". At the time of the decision to dismiss the prosecutor, there were no bans by the BLF on work at any of the defendant's sites but he voted for the motion "to support the rest of the contractors". In this connexion he expressed his belief as to "the tactics by the BLF ... to pick out certain contractors with knowledge that they are vulnerable, and put bans on those jobs until those companies weaken and they pay or accede to the demands ...".

2. Mr. Barlow said that it was his decision to dismiss all of the builders labourers employed on the site by the defendant, including the prosecutor, when the bans were not lifted as required by the ultimatum given to the BLF. In cross-examination the following evidence was given:
   
   

"So once you decided to terminate all your labourers, I suppose you would agree that the only thing connecting the labourers on the Walter and Eliza Hall site with the bans in the industry was via their membership of the BLF?---That is correct.

Indeed, that is the reason they were sacked, because they were members of the BLF; that was the only thing that connected them with the bans, was it not?---Yes.

You must agree with me, must you not, that was the only reason that they were sacked?---Yes."

1. The evidence called by the defendant included that of Mr. Glasson (given in matter V6 of 1986 and put in evidence in this case as stated earlier). He had been the director of industrial relations of the MBAV for several months before giving evidence and previously was its industrial relations manager for approximately three years. His evidence included the following passage in cross-examination:
   
   

"Mr. Glasson, you would agree, would you not, that in respect of the labourers who were not engaging in bans and who were terminated on the 14th, the only factor connecting them with the bans was their membership of the BLF?---No. The connecting factor was that they were employed as builders labourers.

And members of the BLF?---That was also - yes, that was a factor."

1. Although Mr. Barlow's belief, referred to earlier, that the MBAV ultimatum "was the only way that we could put effective pressure ... on the BLF ... to lift the bans" was doubtless the reason underlying the dismissal, no witness called by the defendant has given evidence that the fact that the prosecutor was a member of the BLF at the time of his dismissal was not a substantial and operative factor in the defendant's decision to dismiss the prosecutor. The absence of any such evidence is not surprising, having regard to Mr. Barlow's evidence, quoted earlier, as to "the only reason that they were sacked".

2. In his final address, Mr. Kaufman relied upon the submissions he had put for the defendant in Martin v Lewis Construction Company Pty. Ltd. (matter V6 of 1986). However on all the evidence I find that one of the substantial and operative reasons for the decision to dismiss the prosecutor was the fact that he was at that time a member of the BLF.

3. The defendant has failed to satisfy the court, on the balance of probabilities, that, in dismissing the prosecutor on 14 February 1986, it was not actuated by the reason alleged in the charge, namely "by reason of the circumstance that the said Robert Hugh Myles was a member of" the BLF; the defendant is convicted of the offence charged in the information laid by the prosecutor on 24 February 1986.

4. The defendant's counsel did not make any submissions as to penalty. I have considered the question of penalty in the light of the overall picture disclosed by the evidence, including the defendant's belief that the course followed was the "only way" open to it. I have also taken into account the fact that there is no evidence that the defendant has any prior convictions - either under the Act or under other legislation or that the defendant has ever been found by a court to have committed a breach of the award or of any other award made either under the Act or under any other statute.

5. It may be added that there is no evidence that the defendant - as distinct from the MBAV - ever sought any legal advice as to whether the proposed dismissal would be an offence against s. 5 of the Act.

6. In all the circumstances disclosed by the evidence, and in the light of the maximum penalty of $400 prescribed by Parliament, in my opinion an appropriate penalty is $150.

7. Section 5(5) of the Act provides:-
   
   

"Where an employer has been convicted of an offence against this section the court by which the employer is convicted may order that the employee be reimbursed any wages lost by him and may also direct that the employee be reinstated in his old position or in a similar position."

The prosecutor sought both an order that he be reinstated in his old position and an order for wages lost. As to the claim for reinstatement, Mr. Kaufman, in addition to putting separate submissions in this case, adopted certain general submissions put by him for the defendant in Kerrin v Leighton Contractors Pty. Ltd. (matter V7 of 1986), in which matter reasons for judgment were delivered today. Those general submissions fail for the reasons there given.

1. The defendant also put a submission based upon the likelihood of the defendant facing industrial action if the prosecutor were reinstated and refused to join the Building Workers' Industrial Union of Australia (BWIU). That submission must fail for substantially the same reasons as those given in rejecting a similar submission in Bradford v Prentice Builders Pty. Ltd. (matter V8 of 1986), in which judgment was given today, with the qualification that, in the present case the likelihood of industrial action is more difficult to gauge; the prosecutor said in cross-examination that "possibly" he would be prepared to join the BWIU if he were offered re-employment on the site but that "(A) decision like that is not made on the spur of the moment; you have to think about it".

2. The defendant also submitted that reinstatement should be refused because of certain matters relating to Mr. Myles' conduct as an employee. That submission fails.

3. I accept Miss Hickey's submission that, in exercising its discretion as to reinstatement, the court should not approach the question in the manner in which a potential employer would e.g. considering whether the prosecutor would be likely to be a satisfactory employee. I have considered the evidence as to the prosecutor being "chided" for his absences from work, his earlier dismissal and subsequent reinstatement, the part played by him in relation to the imposition of bans, his role in relation to picket lines and his attitude to his role as a co-shop steward when the shop steward, Mr. Hunter, was absent. In my opinion, accepting all the facts relied upon by the defendant, it would be contrary to the principles expressed in Bowling's case for the court to refuse to order reinstatement by reason of any or all of those matters.

4. I adopt, as being equally applicable to the present case, the following passage from the reasons for judgment delivered today in Bradford v Prentice Builders Pty. Ltd. (matter V8 of 1986):-
   
   

" It was also submitted that the application should be refused because an order for reinstatement would result in the defendant having to dismiss an employee who had longer service with the company and whom the defendant regarded as being a more satisfactory employee. In my opinion the principles expressed by the Full Court in Bowling's case are not consonant with the court taking into account, as a factor relevant to the exercise of its discretion, the fact that the defendant considered an existing employee to be more satisfactory. If that opinion is wrong and that matter could be relevant, then, in the circumstances of this case, I would attach no weight to it.

The need to terminate an employee with longer service in my opinion could be a relevant matter; it would normally be of little weight although circumstances relating to that employee might make it of greater weight. In the context of this case I give it no weight. Mr. Kaufman said that he was not aware of any authorities expressing the opinion that the court should not order reinstatement if compliance with such an order would result in the dismissal of another employee."

1. It was also put by the defendant that reinstatement of the prosecutor "would set a precedent that could encourage those people (five other members of the BLF) to bring section 5 proceedings and seek reinstatement" and that that would (or might) result in the dismissal of other long serving employees of the defendant. There is no substance in that submission. Each case must be determined by applying to its particular facts the applicable principles.

2. It was also submitted that, as a corollary to the principle in Bowling's case that an employer should not benefit from his offence against s. 5, "an employee ought not benefit or be put into a better position than he would have been if not for the fact of the conviction". Accepting the defendant's evidence that it intended to retrench the prosecutor on 14 February 1986 and would have done so but for its decision to dismiss all of its builders' labourers, the essential fact nonetheless is that the prosecutor was not retrenched; his dismissal was an offence against s. 5 of the Act.

3. However, notwithstanding those matters, the prosecutor was offered re-employment by the defendant from 28 February 1986. For the same reasons as those given in Bradford v Prentice Builders Pty. Ltd. (supra) - other than those referring to the particular evidence in that case - in my opinion no order for the reinstatement of the prosecutor should be made, having regard to his refusal of that offer of re-employment.

4. The prosecutor also sought an order for wages lost from the date of his dismissal until the date of the court's order. For reasons analogous to those given in dealing with the question of reinstatement, in my opinion the prosecutor is only entitled to an order for wages lost in respect of the period between the dismissal and the time for re-employment in accordance with the defendant's offer. The loss of wages after that date was due to the prosecutor's refusal of re-employment.

5. Miss Hickey stated that the loss of wages consisted of 2 weeks' pay @ $316 per week, less $63.20, being pay for one day, which resulted in an amount of $568.86. On the last day of the hearing the defendant's counsel said that he was unable to remember the amount agreed upon by the parties and as the court has not been informed of the agreed figure liberty to apply is reserved as to that matter.