Re Sarina; Ex parte Wollondilly Shire Council

[1980] FCA 66

D. FROM ORAL JUDGMENT

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IN THE FEDERAL COURT OF AUSTRALIA )

)

VICTORIA DISTRICT REGISTRY	)	V. NOS 3	c%	4 of 1980
INDUSTRIAL DIVISION
BETWEEN :

GEORGE PHILOPOULOS	Applicant
and

FARABRAM NOMINEES PTY LIMITED Respondent

. REASONS FOR JUDGMENT

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KEELY J. 1980 2 May

These are two applications under s.119 of the Conciliation

and Arbitration Act 1904 (the Act) for the imposition o f

penalties upon the respondent for alleged breaches of clause 31

of the Clothing Trades Award 1964 (the award). By consent the

two matters were heard together.

At the commencement of the hearing, Mr Nathan of counsel

on behalf of the applicant supplied particulars of the alleged I

breaches in answer to a request by Fir Merkel of counsel, who

appeared for the respondent.

In matter V. No. 3 of 1980 the alleged breach was of .-

clause 31(b) of the award, it being alleged "that on 5 April

1979 ... an authorised person, being the applicant, was denied

entry to the respondent's factory premises during the midday

meal break to conduct legitimate union business". The Court

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rejected an attempt by Mr Nathan to supply particulars of an

alleged additional breach of a separate provision of the award

(clause 31(a)) which allegation did not fall within the

affidavit supporting the application and filed with it. This

additional matter was referred to in a later affidavit by the

applicant which was sworn and filed shortly before the hearing -

and more than six weeks after the hearing of the summons f o r

directions. No application was made for leave to amend the

application in such a way as to include the alleged additional I

breach. I .

In matter V. No. 4 of 1980 it was alleged that, in breach

of clause 31(a) of the award, on or about "the 9th day of April

1979 at Richmond the respondent denied an authorised person

access to the wages books, or time sheets, or records covering

its employees and refused to make such wages books, time sheets

or records available for inspection on demand".

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On the evidence I find that at all material times:	!
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1. The respondent was incorporated.

2. The respondent was a member of the Victorian Chamber

of Eianufactures which was an organisation of employers

registered under the Act.

3. The award was binding on the Victorian Chamber of

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Manufactures and its members including the respondent

which conducted a clothing manufacturing business at

71 Balmain Street, Richmond where approximately

twelve persons were employed.

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4 . The Clothing and Allied Trades Union of Australia (the union) was an organisation of employees, registered under the Act, which was affected by the alleged

breaches. I

5. The applicant was an officer of the union and authorised

under the rules of the union to sue on behalf of the

union.

6. Clause 31 of the award provided as follows: "31 - Authorised Person May Enter Factory

(a) Any person or persons not to exceed two duly

authorised by the Industrial Registrar or Deputy

Industrial Registrar in writing (such authorisation

shall be terminable at the will of the Industrial

Registrar or Deputy Industrial Registrar) shall be

allowed to enter the factory or workshop during

working hours. The employer shall in person, or by

representatives on his behalf, be entitled to

accompany the authorised person or persons during

an inspection. Access shall be granted to the wages

book or time sheets or records covering all employees,

including outdoor workers in the employ of that

employer. The employer shall be advised on all

occasions when entry is sought.

\?ages books or time sheets or records, or a true

copy thereof, must be kept on the premises at which

employees are working and be made available for

inspection on demand. Any failure on the part of an employer in this respect shall constitute a breach of the award.

Authorised officials shall not be denied entry to an establishment on the ground that the employer

or a nominated representative is not available to

grant access at the time entry is sought. establishment and the business of the employer shall be interfered with as little as possible by the authorised person or persons.

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(b) An employer shall permit any person authorised

by the Registrar or Deputy Registrar in writing to

enter from time to time the one or several factories

or workshops of that employer during the mid-day

meal to conduct legitimate union business; and once

during each month at a time most convenient to an

employer during working hours, for the purpose of

collecting members' contributions.

Such authorised person shall inform the person-in-

charge (a person shall be in charge) of his arrival

before entering the workshop or factory. Such

official shall have reasonable ingress into the

factory and access to the employees. If any official

so authorised makes himself objectionable during any

such visit to the employer (or his representative)

or to any employee, his authorisation may be

terminated by the Registrar o r Deputy Industrial

Registrar on an application by the employer.

(c) Where any employer o r his representative fails

to comply with the requirements of this clause, the

failure shall constitute a breach of this award.

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(d) Where any union official behaves in an

objectionable manner such conduct shall constitute

a breach of this award."

7. The applicant and one R. A. J. Broomfield, who

accompanied him on the later of the two visits to

the respondent's premises in April 1979, were both

authorised persons within the meaning of clause 31

of the award for all purposes of the clause.

I turn now to the oral evidence called by both the

applicant and the respondent. The applicant visited the

respondent's premises during the morning of Thursday, 5 April

1979 and discussed with Mr Harwood, the managing director of

the respondent, matters which included the dismissal of an

employee, which are not the subject of the breach alleged in

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matter V. No. 3 of 1980. The applicant gave evidence that a

bell rang, that Mr Harwood agreed that it meant there was a

lunch break for the employees, and that he saw a number of

employees entering a room opposite which he assumed to be a

lunch room. That evidence was contradicted by witnesses

called by the respondent, including Miss Bulle who gave

evidence that there was no bell and that the time when the

applicant asked to see the employees vas some considerable

time before the meal break which began at 12.30 in the

afternoon. Miss Bulle impressed me as being a truthful

witness and I accept her evidence where it conflicts with

that of the applicant.

Accordingly I am not prepared to find that on 5 April

1979 there was a breach by the respondent of clause 31(b) of

the award in denying entry to the applicant I I during the mid- , .

day meal to conduct legitimate union business". Further, even	I
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if the request which ~ - 7 . m refused was a request to enter the

premises I I during the mid-day meal'' - contrary to my finding on I P ,

the evidence - I accept Mr Merkel's submission that the request	i
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was not a request to conduct legitimate union business" within

the meaning of the sub-clause. Doubtless it is "Legitimate"

for the union to seek to enrol members and such an activity h

may, in one sense, fall within a broad concept of I I union

business". However, in my opinion in clause 31(b) of the

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award the words to conduct legitimate union business'' in

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their context are not intended to confer a right upon two

authorised persons to enter a factory as often as they choose

during the midday meal for the sole purpose of seeking to

persuade the employees to join the union. I reject Mr Nathan's

submission to the contrary which he supported by references

to the objectives of the union. In the result I do not find

it necessary to consider Mr Merkel's other submissions in

relation to	matter V. No. 3 of	1980.	The	application	is	8 .
dismissed.	i

Turning to matter V. No. 4 of 1980 I accept the evidence I.

of Miss Bulle and Mr Morellato (who is also knovm as Mr Morell)

that the second visit by the applicant, accompanied on this

occasion by Mr Broomfield, did not occur on Monday, 9 April 1980.

I find on the balance of probabilities that it probably occurred

two days later on Wednesday, 11 April 1980. Mr Broomfield also (

impressed me as being a truthful witness and I accept that in !

giving evidence he believed that the second visit occurred on matter I accept Mr Broomfield's evidence as to what happened on the occasion of the second visit by the applicant to the respondent's premises in April 1979.

Although Mr Morellato gave his evidence in a convincing

manner I am not prepared to accept his evidence that there was

no swearing by Mr Harwood on the occasion of the second visit by

the applicant. Nor am I able to accept the evidence given by I '

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blr Harwood this morning to that effect. I accept the evidence

of Mr Broomfield as to the language used by Mr Harwood (which

it is not necessary to repeat in this judgment) including his

evidence that Illr Harwood told the applicant and Mr Broomfield

to "get out of my factory now, you bludgers" and that he said

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to the applicant "I can fix you for good ... .

Mr Merkel, in a carefully prepared argument on behalf

of the respondent, submitted that on the evidence the Court

should find that the request made by the applicant at the

second visit to the factory was not made bona fide and had

no purpose other than that of harrassment of the respondent.

There are many aspects of the evidence given by the applicant

which are quite unsatisfactory. In the light of all the

evidence and in particular the applicant's evidence I have

given very careful consideration to this submission put with	I
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force by Fir Merkel and supported by many references to the

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transcript. However, I am not prepared to find, on a balance

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of probabilities, that the request made by the applicant at

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the time of the second visit was not made bona fide.

I am also unable to accept Mr Merkel's submission that

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in clause 31(a) of the award the words access shall be granted

to the wages book (etc.) covering all employees ... in the

employ of that employer'' refer only to books covering employees

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who are still in the employ of the employer at the time of

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the request for access. I am unable to accept that the clause !

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intends that access shall be granted to wages books covering

persons who are still employed but that access may be refused

to wages books covering an employee who was dismissed a few

days before the request. In my view such a wages book which was a wages book at the time when the person was employed

does not cease to become a wages book within the meaning of i

the clause upon the dismissal of the employee. !

Nor am I able to accept Mr Merkel's Submission that

the award was not binding on the respondent in Afkil 1979.

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This submission was based upon clause	5 of the award which
stated that:

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"(a) This award shall be binding . . upon the

members of the organizations of employers named in Schedule C hereto in respect of each and every person employed by them in the clothing

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I industry ... .

Schedule C included "the Victorian Chamber of Manufactures''

of which organisation the respondent was a member. I am

unable to accept the submission that the intention of

clause 5(a) of the award was to make it binding only upon

those employers who were members of the Victorian Chamber

of Manufactures at the time of the making of the award.

I find that the applicant was refused access to the wages

books by the respondent and that that refusal constituted

a breach of clause 31(a) of the award.

I accept Mr Merkel's submission that, if the Court

considered that the breach was a technical one and that no

. . . .. , _-_ _--.I-.--_--.

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penalty was required in all the circumstances, then it has

a discretion to refrain from imposing a penalty (see

Parkinson v. Graziers Co-operative Ltd (1958) 1 F.L.R. 90).

However, as I indicated during the course of final addresses

I do not regard the breach as being in any sense a technical

one. Mr Merkel reformulated that argument by submitting

that the Court should exercise its discretion against imposing

any penalty on the respondent, having regard to all of the

circumstances of this case including the evidence’that the

respondent obtained advice from the Victorian Chamber of

Manufactures and including the alleged discourtesy by the

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applicant, both in failing to attend on Monday, 9 April 1979

and in failing to give any apology or explanation for so

failing when he attended at the factory on the second

occasion. I have taken those matters into account in

considering penalty.

The maximum penalty for this breach of the award is

$1,000. That penalty should be reserved for the worst breach

possible. Further, it has not been suggested that the

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respondent has previously breached this or any other award.

On the other hand clause 31 is an important provision in i

the award and the union has an important role to play in

ensuring that employers bound by the award comply with its

provisions. Clause 31 is intended to assist the union to

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carry out its role of enforcing compliance with the award.

On the evidence in this case the respondent's breach of

the clause was a serious one in that it vas a considered

refusal, it was delivered in an extremely offensive way and

it was accompanied by two peremptory orders to the applicant

to get out and also by a threat to "fix" him for good.

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Such a breach of an award of the Conciliation and Arbitration	I
Commission can not be tolerated by this Court, having regard	i

to the public interest in deterring employers fr,m refusing

I to comply with the clause. I fix a penalty of $500 and

order, pursuant to s . 1 2 0 , that the whole of the penalty be

paid to the union.

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