Squires, R.J. v Flight Stwards Association of Australia

[1982] FCA 171

Re: RICHARD JAMES SQUIRES
And: FLIGHT STEWARDS ASSOCIATION OF AUSTRALIA
Nos. 20-25 of 1982
Industrial law

COURT

IN THE FEDERAL COURT OF AUSTRALIA

INDUSTRIAL DIVISION
Ellicott J.

CATCHWORDS

INDUSTRIAL LAW - Conciliation and Arbitration - Discipline of member - Flight steward - Disapproval by member of resolution of union approving industrial action in nature of bans - Purported resignation from union by member stating intention to offer services to employer (Qantas) - Resignation ineffective - Charge of member for advocating disobedience to rules - Resolution finding him guilty fining and suspending him for one month - Resolution admittedly invalid for failure to serve charge - Whether resolution imposed penalty on member - Whether coercion by union on employer to take action in relation to member in order to avoid industrial action - Whether member refused to join in industrial action - Whether request by union to employer to stand down member an injury to member in his employment - Whether directive by union to members not to work with member who refuses to join industrial action imposed disability.

Conciliation and Arbitration Act 1904, ss.5(1)(aa), 5(4), 188, 188(1), 188(1)(b), 188(1)(e), 188(4)

HEARING

SYDNEY

#DATE 19:8:1982

JUDGE1

Richard James Squires ("the informant") has instituted proceedings against the Flight Stewards Association of Australia ("F.S.A.A.") pursuant to s.188 of the Conciliation and Arbitration Act 1904 ("the Act"). Six charges have been laid, one alleging a breach of s.188(1)(b) and five alleging breaches of s.188(1)(e) of the Act. It was agreed that all six charges should be heard together and that the evidence before me should so far as it is relevant be treated as evidence in each matter.

At all relevant times the informant was a flight steward employed by Qantas Airways Limited ("Qantas") and was also a member of F.S.A.A. an employees organisation registered pursuant to the Act.

In February 1981, members of F.S.A.A. engaged in industrial action against Qantas involving the use of a new aircraft, the SP747. The informant did not think they should be involved. He purported to resign from the union and offer his services to Qantas. He did not in fact work for Qantas during the industrial dispute. After the dispute was settled he was charged with a breach of the rules of F.S.A.A., it being alleged that he had advocated disobedience of a lawful decision of the Federal Council of the Association. The matter was ultimately dealt with by the Federal Council of F.S.A.A. and he was fined $20.00 and suspended from the benefits of membership of the union for one month commencing June 1 1981. Qantas was told of the disciplinary action and advised that no member of F.S.A.A. should be asked by Qantas to operate with the informant during the period of his suspension. About the same time a directive was issued to other members of the Association indicating that they were not to work with the informant during that period. Shortly after his suspension commenced he was in the course of his employment, on a journey to London. He was requested by Qantas to leave the flight and return to Sydney which he did. It was in the light of these events, broadly stated, that the charges in question were laid.

Section 188 in its relevant parts provides:-

"188(1) An organisation

(a) . . . . . . . . .

(b) shall not take, or threaten to take, industrial action against an employer with the intent to coerce the employer to take action in relation to a person that would, if taken, be a contravention of paragraph (aa) of sub-s. (1), or paragraph (aa) of sub-s. (1)A, of section 5; . . . . . . . . .

(e) shall not impose or threaten to impose, a penalty, forfeiture or disability of any kind upon a member of the organisation by reason of the circumstance that the member has refused or failed to join in industrial action.

(2) A contravention of sub-section (1) is an offence against that sub-section punishable, upon conviction, by -

(a) where the action constituting the offence has continued for more than a day - a penalty not exceeding a fine of $400 for each day during which that action has continued; or

(b) in any other case - a penalty not exceeding a fine of $400.

(3) In any proceedings for an offence against sub-section (1), 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 the action was not actuated by that reason or taken with that intent.

(4) . . . . . . . . . . . "

Section 5(1)(aa) is also relevant. It provides:-

"5(1) An employer shall not dismiss an employee, or injure him in his employment, or alter his position to its prejudice, by reason of the circumstances that the employee - . . . . . . . . .

(aa) has refused or failed to join in industrial action;. . . . . . . . . . . . . . . Penalty: Four hundred dollars

The six charges laid may be summarised as follows:-

No. 20 of 1982

That F.S.A.A. imposed a penalty on the informant by reason of the circumstance that he had failed to join in industrial action in breach of s.188(1)(e) when the Federal Council of F.S.A.A. imposed a penalty of $20.00 on him and suspended him from membership for one month.

No. 21 of 1982

That on or about 1 May 1981 F.S.A.A. threatened to take industrial action against Qantas with intent to coerce it to take action in relation to the informant that would if taken have been a contravention of s.5(1)(aa) of the Act, in breach of s.188(1)(b), when the Secretary of F.S.A.A., on that day, wrote to Qantas threatening industrial action against Qantas if any member of the defendant should be asked by Qantas to work with the informant for one month from 1 June 1981.

No. 22 of 1982

That on or about 22 May 1981 F.S.A.A. imposed a penalty upon the informant by reason of the circumstance that he had failed to join in industrial action in breach of s.188(1)(e) of the Act. The particulars of this charge were that on 22 May 1981 the Federal Council of F.S.A.A. purported to direct all members of F.S.A.A. not to work with the informant for a period of one month commencing 1 June 1981.

No. 23 of 1982

That on or about 22 May 1981 F.S.A.A. imposed a disability upon the informant by reason of the circumstance that he had failed to join in industrial action in breach of s.188(1)(e). For this and the charges in matters Nos. 24 and 25 of 1981 the informant relied upon the same particulars as were given for No. 22 of 1982.

No. 24 of 1982

That on or about 22 May 1981 F.S.A.A. imposed a disability upon the informant by reason of the circumstance that he had refused to join in industrial action in breach of s.188(1)(e) of the Act.

No. 25 of 1982

That on or about 22 May 1981 F.S.A.A. imposed a penalty upon the informant by reason of the circumstance that the informant had refused to join in industrial action in breach of s.188(1)(e) of the Act.

FACTS

Prior to July 1980 the informant held office as Federal President of F.S.A.A. Elections were held in that month and he was not re-elected. In January and February 1981 an industrial dispute occurred between F.S.A.A. and Qantas which employs members of F.S.A.A. as cabin crew on its 747 aircraft. At all material times there was in existence an award known as The Airline Flight Stewards' (Qantas) Award 1974. All male cabin crew employed by Qantas on its 747 aircraft are called "flight stewards" and all are members of F.S.A.A. Female cabin crew known as "flight hostesses" are also employed on this aircraft and they are members of the overseas branch of the Airline Hostesses Association.

At issue in the industrial dispute was a demand by F.S.A.A. that Qantas pay its members $20.00 per week each in return for the smooth introduction of a new type of aircraft by Qantas known as the SP 747. Discussion with Qantas on this issue commenced in January 1981, and subsequently, in February 1981, compulsory general meetings were held of members of F.S.A.A. Questions arose at a meeting held on 9 February 1981 as to the attitude of the flight hostesses. At this meeting the informant was present and he alleged that statements made that the hostesses were scabbing by reporting for work were untrue.

Decisions were made to impose bans on the operation of the SP 747. On 13 February 1981 it was resolved at a compulsory general meeting of F.S.A.A. that the bans be lifted to allow a hearing in the Arbitration Commission to commence but, on 17 February 1981, the Federal Council of F.S.A.A. resolved to reapply the bans. A further compulsory general meeting was held on 18 February 1981 at which the informant was present. In the course of that meeting he moved a motion, which was seconded, in the following terms:-

"THAT this general meeting instructs the Federal Council to inform the A.C.T.U. that it is our desire that all bans be lifted forthwith and that this decision be communicated to all our members and to the media forthwith."

The informant addressed the meeting in support of the motion and at the conclusion of his remarks reserved his other points for his right to reply. Because, after several speakers spoke, a motion was moved and passed that the question be put, the Chairman of the meeting refused to give him a right to reply. The informant challenged this ruling. The motion he had moved was then voted upon and lost. Subsequently, at that meeting, a motion was moved and carried directing that, during the currency of the dispute, no flight steward should work on any Qantas aircraft prepared or in any way worked on or manned by staff volunteer scab labour. The motion was expressed as only applying to ports within Australia. The informant believed that the Chairman was in error in ruling that he had been deprived of his right of reply and that this erroneous ruling had a possibly decisive effect upon the vote on his motion and the subsequent decision of the meeting.

On the following day the informant sent a telegram to the Federal Secretary of F.S.A.A. which, omitting formal parts, was as follows:-

". . . it is my opinion that the ACTU blackbans on Qantas were invoked on a false premise stop at the general meeting of the FSA held at the South Sydney Junior Rugby Leagues Club yesterday my opinion was rejected by a large majority of the members present stop at one point in the meeting I was ruled against comma, in favour of Mr John Masterson who I believe is a supporter of the present Federal Council and its attitudes stop later Mr Keith Stephenson the Chairman of the Meeting and President of the Association denied me the right to reply to my own motion stop a right to which I believe I am entitled to under both the rules of the FSAA and the constitution of Australia stop clearly this places me in an untenable position stop on the one hand I owe my loyalty to the FSAA of which I am the immediate past President stop on the other hand I owe my loyalty to Qantas who pay my salary stop it is with the greatest regret therefore that I tender my resignation from the Flight Stewards Association of Australia stop naturally it follows that I will be offering my services to Qantas forthwith."

On the same day the informant sent a telegram to Qantas which stated:-

"The following message was sent to the Federal Secretary of the F.S.A.A. this day:- . . . . . . . . . . "

There then followed a copy of the telegram which he had sent to F.S.A.A. and which is set out above.

On 20 February 1981 he received a telegram from the Secretary of F.S.A.A., in reply, as follows:-

"Your resignation from the Flight Stewards Association of Australia is accepted in accord with clause 8 of the association rules and expect you to conform with those said rules stop I take note of your loyalty to Qantas and it comes as no surprise that you have taken this path stop your cable arrived at FSAA office 0940 hours February 20th."

The rules of F.S.A.A. are in evidence. Rule 8 provides:-

"8. A member may resign his membership of the Association by notice in writing if -

(a) He ceases to be engaged in the industrial pursuit of flight steward or ceases to be employed in or in connection with the aviation industry or,

(b) gives not less than three month's notice before the resignation is to take effect and has paid all levies and contributions owing to that date. Notice in writing of resignation shall be addressed to the Secretary of the Association and shall be delivered to him by hand or by prepaid post."

A compulsory general meeting of F.S.A.A. was held on 27 February 1981 at which the informant was not present. At that meeting a motion applauding and endorsing the decision to accept the resignation of the informant was put and declared lost.

The informant became aware of this and on 13 March 1981 sent a telegram to the Federal Secretary of F.S.A.A. in the following terms:-

"Having been advised that a general meeting of members has refused to endorse the Federal Secretary acceptance of my resignation I now withdraw same and appreciate this gesture of confidence in me by our members stop."

On or about 12 March a member of the Federal Council of the F.S.A.A., a Mr P.M. Jacobs, wrote to the Secretary of F.S.A.A. the following letter:-

"I wish to charge Mr Rick Squires with advocating disobedience of a lawful decision of Federal Council, in that he included in a telegram addressed to the Federal Secretary, advising his intention to resign from the membership of the Flight Stewards Association, the following words 'Naturally it follows that I will be offering my services to Qantas forthwith'. The above charge is made in accordance with Clause 21 - Discipline of Members, paragraph (A) sub-paragraph (iv). At the time of Mr Squires offer of his services to Qantas, the Association was involved in a well publicised dispute with Qantas during which all members of the Flight Stewards Association were required to refuse to operate the S.P. variant when reporting for duty. Such action being in accordance with the direction of the Federal Council by necessity led to the standown of several hundred Flight Stewards. It is my belief that Mr Squires should be disciplined for his actions as outlined by him i.e. the offering of his services to Qantas unqualifiedly and forthwith."

On 18 March 1981 the Federal Secretary of F.S.A.A. wrote to Mr Squires. The letter is headed "Notification of a Charge and the first two paragraphs read as follows:-

"I am in receipt of your telegram advising that you seek to withdraw your resignation of membership of the Flight Stewards' Association of Australia. Acceptance of your withdrawal will be conditional upon a number of factors. I have been asked by the Federal Council to demand from you an explanation of the following words which formed part of your resignation by telegram received in the F.S.A.A. office on February 20, 1981, that is 'Naturally it follows that I will be offering my services to Qantas forthwith' You are hereby charged in accordance with Rule 21, paragraph 4 'Discipline of Members', the charge being disobedience of a lawful decision of the Federal Council while the F.S.A.A. was engaged in a dispute of large proportions."

He was also told in that letter that he should present his answer on Tuesday 7 April.

Clause 21 of the Rules is headed "Discipline of Members". Paragraphs (a)(iv) and (b) to (j) inclusive of these Rules are as follows:-

(a) Any member of the Association may charge any other member with:-
. . . . . . . .

(iv) Advocating or supporting disobedience by members to rules or lawful decisions of the Association.
. . . . . .

(b) Any charge made by a member shall be in writing made to the Federal Secretary of the Association.

(c) The Council shall have the power to hear and determine charges under this Rule.

(d) A member charged under these Rules shall be given notice of the charge. A written notice specifying the charge posted by registered letter at least fourteen (14) days prior to the determination of the charge to the member's address as then appear in on the records of the Association shall be deemed to be sufficient notice of the charge; but the member may be given notice of the charge by such other means as may be reasonable having regard to all the circumstances.

(e) The Council or the Federal Secretary may summon the member charged to appear before the Council and/or to answer the charge in writing or in such other manner as required by the Council and/or the Federal Secretary.

(f) A member charged with an offence against these Rules shall be entitled to answer such charge by written submissions or in such other reasonable manner as the Council may think proper.

(g) The Council may hear and determine the charge in the presence of the member charged and/or in the in the absence of the member charged if that member has had a reasonable opportunity to answer such charge.

(h) The Council may find the member charged guilty or not guilty of the offence or offences charged. If the Council finds the member guilty of an offence against these Rules, it may fine such member any sum not exceeding twenty dollars ($20.00), may censure or reprimand such member, may suspend such member for a period not exceeding three years, may expel such member from the Association or may decide to impose no penalty.

(i) For the purpose of this Rule suspension shall mean suspension from the whole of the benefits of membership or from any part of such benefits, but not the obligations of membership; and in the case of an officer or member holding any office or position in the Association may include suspension from such position or office and the emoluments and/or benefits thereof.

(j) Any member who knowingly makes a charge against a member under this Rule which is in the opinion of the Council trivial, frivolous or without foundation shall be guilty of an offence under this Rule."

It is agreed between the parties that Mr Jacobs' letter is "the charge" referred to in the secretary's letter of 18 March 1981 but it was not served on the informant. It will be noted that the secretary's letter described the charge as being "disobedience" not "advocating disobedience" as did Mr Jacobs' letter of 12 March.

There then ensued correspondence by letter and telegram between the informant and F.S.A.A.

A meeting of the Federal Council of F.S.A.A. was held on 30 April 1981. The informant was not present but the meeting purported to deal with the charges "levelled against him" by Mr Jacobs. The minutes of that meeting are in evidence before me and they set out what was said on the matter by various members of the Federal Council. At the conclusion of their consideration a resolution was passed eight votes to nil by secret ballot that the informant was guilty as charged. Two further resolutions were then passed, namely:-

"THAT in accordance with Rule 21(h) and 12A(m)(iii), Mr Squires be fined $20.00 and be suspended for one month, this suspension to take effect June 1, 1981. THAT the Federal Secretary write to Mr Squires notifying him of the decision of Federal Council setting out his responsibility under the Association's Rules and noting that his withdrawal of resignation has been accepted. Also that the opportunity of appeal under Rule 12B(i) and (v) be made known to him. Further, a letter showing Federal Council's decision be addressed to Qantas forthwith, pointing out that no member of the F.S.A.A. should be asked to operate any aircraft on which Mr Squires is rostered during the entire period of his suspension."

Rule 12A(m)(iii) gives the Federal Council power to fine and/or suspend and/or expel any member in accordance with the Rules.

On 1 May 1981 the informant was notified of the decision by telegram and letter. The letter stated (inter alia):-

"Federal Council, at a meeting held in the boardroom of the F.S.A.A. office on April 30, 1981, in your absence as previously advised, considered charges made against you in accordance with Association rule 21 paragraph 4 'Discipline of Members'. The charge being that you advocated disobedience, of a lawful decision of Federal Council, in that you included in a telegram, addressed to the Federal Secretary, advising your intention to resign from the membership of the Flight Stewards' Association, and stated the following words:- 'Naturally it follows I will be offering my services to Qantas forthwith'. The above statements were recorded at a time when the Association was involved in a well publicised dispute with Qantas during which all members of the Flight Stewards' Association were required to refuse to operate the Boeing 747 SP Variant when reporting for duty. Such action being in accordance with a resolution of Federal Council. Further, at a compulsory stop work meeting held at South Sydney Juniors Leagues Club, on Wednesday, February 18, 1981, which you attended, the following resolution was put and carried: 'THAT this meeting of members of the Flight Stewards' Association of Australia directs that during the currency of this dispute no Flight Steward is to work on any Qantas aircraft which has been prepared or in any way 'worked on or manned' by staff volunteer 'scab' labour". Clearly by your statements and actions considering the high number of your fellow members who had strictly observed the Association directive, and had been stood down without pay, you obviously had no regard for the resolution carried. Federal Council found your actions were not in the interest of the members of the F.S.A.A. Such conduct indicates a total lack of responsibility on your part. Your lack of responsibility being in direct conflict with rule 4 'Objects' of the Association. Accordingly Federal Council, after hearing all the evidence, by way of secret ballot, unanimously found you guilty of the above charge. Therefore Federal Council considering the above, with due regard to the gravity of the offence, in accordance with rule 12(m)(iii), has elected to impose a penalty of a $20.00 fine and in addition to a period of one months suspension from membership of the Association taking effect from June 1, 1981."

After informing him of his right to appeal the letter concluded:-

"I have been directed by Federal Council to remind you of the seriousness of this breach by you of a basic trade union principle, and I take no pleasure in informing you that any similar breach will be seen to be reason to review your membership of this Association. In regards to your request for your resignation being withdrawn, Council recognises your right to do so, as your request is within the three month notice required."

On the same date the Federal Secretary of F.S.A.A. wrote to Qantas as follows:-

"Federal Council, at a meeting held in the boardroom of the F.S.A.A. office on April 30, 1981, considered charges made against one R.J. Squires, 'in absentia', in accordance with Association rule 21 paragraph 4 'Discipline of Members'. Mr Squires has been found guilty of a serious breach of the Association rules. Accordingly he will be suspended from Association membership for a period of one month, taking effect from June 1, 1981. Be advised, that during the period of suspension, that no member of the F.S.A.A. should be asked by Qantas to operate with Mr Squires. To do so would invite unfortunate incidents which would be counter productive to Qantas and this organisation."

Shortly after this the informant applied to the Federal Court for a rule to show cause why a number of orders should not be made including orders which would have the effect of treating as null and void the charge the proceedings and the resolutions at the meeting of 30 April. On 4 May 1981 Northrop J. granted a rule to show cause which was made returnable on 5 June 1981.

On 11 May 1981 Qantas replied to the letter of 1 May. The reply contained the following:-

"I acknowledge your WBS 468 of May 1st on this subject. Whilst the suspension of Mr Squires may be a matter dealt with in accordance with the rules of your Association, it does present us with cause for concern. Matters regarding the relationship of the Union to its members are generally of no concern to the Company. We remain strictly neutral on such occasions. However, when the Union imposes a penalty upon one of its members which directly affects the Company and its relationship with its employees, we cannot maintain this neutrality. The penalty which you have imposed on Mr Squires is one such case. The situation as we see it, is that your Union has found Mr Squires guilty of some breach of Union rules. As a result, the Union has suspended Mr Squires for one month and additionally, has directed that no other Union member will operate with him for that period. The effect of this penalty appears to be that the Company is required to hold him out of service on pay for that month or operate him and suffer as you have suggested 'unfortunate incidents which would be counter-productive'. In either case, Mr Squires would receive pay and would suffer no penalty. In either case, however, the Company would be penalised."

On 22 May 1981 a special news sheet was issued to members of F.S.A.A. by the Federal Secretary. It was headed "Discipline of Members". It set out the letter of Mr Jacobs containing the charge against the informant and went on:-

"At the meeting of April 30 the matter was considered and the following resolution passed:- "THAT in accordance with Rule 21(h) and 12A (m)(iii) Squires be fined $20.00 and suspended for one month, this suspension to take effect June 1, 1981." DIRECTIVE: Federal Council directs all F.S.A.A. members not to operate with Mr R.J. Squires should he be rostered as a cabin crew member in any category, for a period of one month commencing June 1, 1981. Further, such directive applies worldwide. Mr Squires has commenced proceedings in the Federal Court against the Association and all members of Federal Council seeking, among other things, orders challenging the validity of the resolution of Federal Council of April 30, 1981. Members will be advised of proceedings."

On 26 May 1981 the Federal Secretary of F.S.A.A. replied to Qantas' letter. In the course of that letter he wrote:-

". . . . . . . . . . Detailed reference has been made to the suspension, of Mr Squires, from Association membership for one month commencing June the first. That suspension WILL occur notwithstanding possible penalties incurred by both Qantas and the F.S.A.A. I take this opportunity to remind you that as an employer you have the undeniable right to discipline your employees of Qantas. The Association observes that right, where matters of employment are transgressed and a breach of the master-servant relationship occurs. Similarly I would expect you, as a Qantas representative, to respect our right to discipline our own membership, however unpleasant that may be. To do otherwise would be repugnant to the remaining 1,750 members and would be political suicide." . . . . . . . . . . . Members of the F.S.A.A. will follow the Federal Council's directive and will refuse to fly with Mr Squires as from June the first. . . . . . . . . . . . I have written this letter after considerable thought. Understand at no time should the contents be taken as a threat to intimidate, I have stated the facts purely as they stand."

On 1 June 1981 the informant was in Bahrain and had been rostered as crew on a flight to London. On that date, in consequence of the directive of 22 May, he was prevented by Qantas from boarding the Qantas aircraft for London and was directed to return to Sydney as a passenger. He returned as a passenger to Sydney in accordance with this directive. The informant said in evidence that to be taken off one's rostered duties and directed to return to one's home port as a passenger is regarded as a form of public disgrace by cabin crew. It has been the subject of protest by F.S.A.A. when imposed on its members by Qantas or a captain.

Before he left Bahrain he instructed his solicitor in Australia to apply for an interlocutory order restraining F.S.A.A. from acting further on the directive. An application for this purpose was made on 2 June 1981 and it came before Keely J. on 5 June 1981. At the hearing F.S.A.A. did not contest that the informant had established a prima facie case but argued on the balance of convenience, that no interlocutory injunction should be granted. His Honour made a number of orders including one that, pending the hearing and determination of the proceedings, the respondents treat as null and void and of no legal effect the purported directive of 22 May 1981. Those proceedings have since come on for hearing before Sheppard J. and judgment has been reserved. In the course of those proceedings F.S.A.A. conceded that the resolution of 30 April 1981 was void and of no effect apparently on the ground that the informant had not been served with a copy of the charge, i.e. the letter of 13 March 1981 sent by Mr Jacobs.

It is in these circumstances that the informant brings the present proceedings all of which were commenced in April 1982.

THE CHARGES
No 20 of 1982

The informant claims that F.S.A.A. breached s.188(1)(e) of the Act because it imposed a penalty on him for failing to join in industrial action. He relies on the resolution of its Federal Council of 30 April 1981 which purported to fine and suspend him.

As a result of the provisions of s.188(3), the onus is on the informant to prove, beyond reasonable doubt, all the relevant facts and circumstances other than the reason relied upon. The onus is on F.S.A.A. to prove that the action of passing the resolution was not actuated by that reason. It is agreed that in the light of decisions of this court and the High Court relating to s.5(4) of the Act, this means that F.S.A.A. must prove, on the balance of probabilities, that the reason alleged was not a substantial or operative reason actuating it. (See General Motors Holden Pty. Limited v. Bowling (1976) 12 A.L.R. 605).

There is no doubt that F.S.A.A. is an organization within the meaning of the Act and that the informant was at all relevant times a member of it. Although the resolution in question was passed by its Federal Council, s.188(4) makes it clear that, for the purposes of the section, an action taken by the Committee of Management of an organization is deemed to be taken by the organization.

Counsel for F.S.A.A., however, contended that the informant had not proved, beyond reasonable doubt, that F.S.A.A. had, within the meaning of s.188(1)(e), imposed a penalty on him.

In relation to this matter the facts are not in dispute. The circumstances in which the resolution of 30 April was passed were as I have set out. What is claimed is that the resolution was admittedly void and of no effect because the charge was not served on the informant, and therefore, whatever it may have purported to impose, in reality it imposed nothing.

I do not think there can be any doubt that if the resolution had been valid it would have imposed a penalty on the informant within the meaning of s.188(1)(e). To fine the informant $20.00 was to impose a penalty on him.

But does the fact that a Court would set it aside, because the rules of F.S.A.A. or the rules of natural justice were not complied with by serving a copy of the charge on the informant, mean that, for the purposes of s.188(1)(e), no penalty was imposed on him?

Counsel for the informant supported his submissions by referring to the principle enunciated by the Privy Council in Calvin v. Carr & Ors. (1979) 53 A.L.J.R. 471 that although a decision made contrary to natural justice is void and not voidable, until it is so declared by a competent body or court, it may have some effect or existence in law. Lord Wilberforce, at p.474, said:-

"This argument led necessarily into the difficult area of what is void and what is voidable, as to which some confusion exists in the authorities. Their Lordships' opinion would be, if it became necessary to fix upon one or other of these expressions, that a decision made contrary to natural justice is void, but that, until it is so declared by a competent body or court, it may have some effect, or existence, in law. This condition might be better expressed by saying that the decision is invalid or vitiated. In the present context, where the question is whether an appeal lies, the impugned decision cannot be considered as totally void, in the sense of being legally non-existent. So to hold would be wholly unreal. The decision of the Stewards resulted in disqualification, an effect with immediate and serious consequences for the appellant. This was a fact: the appellant's horses could not run in, or be entered for, any race; the appellant lost his membership of the Australian Jockey Club and could be excluded from their premises. These consequences remained in effect unless and until the Stewards' decision was challenged and, if so, had sufficient existence in law to justify an appeal. An analogous situation in the law exists with regard to criminal proceedings. In Crane v. Public Prosecutor, (1921) 2 A.C. 299 there were irregularities at the trial which had the effect that the trial was a "nullity". Nevertheless an appeal was held to lie to the Court of Criminal Appeal."

His Lordship went on to refer to other cases in which it was held that, although a decision, contrary to the rules of natural justice, was void, it nevertheless was subject to appeal in the ordinary way.

Counsel for the informant also pointed out that a resolution by an organization imposing a fine on a member for failing to join in industrial action would be invalid and therefore void in any event because it would be contrary to the declared policy of the Act. This he submitted showed that the invalidity of a resolution purporting to impose a penalty could not have been intended to be a ground for finding it was not a breach of the section. He also made the point that if the defendant's submission was correct it would mean that a resolution which complied with the rules of natural justice and was otherwise valid would be within the section whilst one which did not would not fall within it - an odd result, he argued, particularly as a threat to impose a penalty has been made an offence against the Act. He submitted therefore that any demand of a pecuniary nature placed on a member because of a failure to join in industrial action fell within the section.

I think it is clear that the question whether a penalty has been imposed has to be answered without taking into account the effect which s.188(1)(e) itself has on the validity of the resolution imposing it.

In my opinion the words "impose a penalty" are not satisfied unless a penality is effectively imposed. If an organization purports to impose a penalty but its actions are ineffective to achieve that result it does not, in my view, "impose a penalty" within the meaning of s.188(1)(e). That provision, which is penal in character, at least contemplates a member being placed under a liability or burden as a result of an act of imposition. If the act is ineffective and no liability or burden thereby rests upon the member no penalty is imposed.

Here the resolution of 30 April 1981 is relied upon. It was admittedly void and of no effect. It created no liability to pay the fine it sought to impose. In my opinion it did not amount to the imposition of a penalty.

It is true that s.188(1)(e) may well have the effect of rendering such a resolution void in any event, but, as I have said, the question whether a penalty has been imposed by a resolution should be answered without taking into account the effect which the provision itself may have on that resolution. The decision in Calvin v. Carr & Ors., although it indicates that the resolution may have some effect in law does not establish that it has the effect which it purports to have, that is, in this case, the imposition of a penalty.

I am therefore of the opinion that the information in matter No. 20 of 1982 should be dismissed. This being so, it is unnecessary to consider, for the purposes of this charge, the further arguments relied upon by the defendant as to whether, in the circumstances, I could be satisfied that the informant had failed to join in industrial action.

No 21 of 1982

The success of this charge depends on whether the letter from the secretary of F.S.A.A. to Qantas of 1 May 1981 constituted a threat by F.S.A.A. to take industrial action against Qantas with intent to coerce Qantas to take action in relation to the informant that would, if taken, have been a contravention of s.5(1)(aa) of the Act.

The critical part of the letter of 1 May is its last paragraph which stated:-

"Be advised, that during the period of suspension, that no member of the F.S.A.A. should be asked by Qantas to operate with Mr Squires. To do so would invite unfortunate incidents which would be counter productive to Qantas and this organization."

Qantas' reply to this of 11 May included the following passage:-

"The effect of this penalty appears to be that the company is required to hold him out of service on pay for that month or operate him and suffer as you have suggested 'unfortunate' incidents which would be counter productive.' In either case, Mr Squires would receive pay and suffer no penalty. In either case, however, the company would be penalised."

After giving a directive to members, the union replied to this letter from Qantas and in the course of that letter stated:-

"Members of the F.S.A.A. will follow the Federal Council's directive and will refuse to fly with Mr Squires as from June 1st."

Two further paragraphs are relevant:-

"It is suggested that as Qantas cannot roster Mr Squires during that two week period, without incurring a penalty, Mr Squires through his own actions has given Qantas the right to suspend Mr Squires' contract of employment, due to frustration, for that period thereby placing him on a leave without pay arrangement to ensure Qantas suffers no penalty. . . . . . . . . . . . I have written this letter after considerable thought. Understand at no time should the contents be taken as a threat to intimidate, I have stated the facts purely as they stand."

On 1 June Qantas, following this correspondence, obviously fearing industrial action if he continued, requested the informant to leave the flight at Bahrain and he returned to Sydney as a passenger.

What occurred after the letter of 1 May is not strictly relevant to whether that letter constituted a threat and I only refer to it as confirming what I regard as implicit in the letter of 1 May. I am satisfied beyond reasonable doubt that the letter of 1 May, in the circumstances in which it was written, constituted a threat by F.S.A.A. to take industrial action against Qantas an employer and was so understood by Qantas.

But was the action which F.S.A.A. was wanting Qantas to take in relation to Mr Squires, action which would, if taken, be a contravention of s.5(1)(aa) of the Act? I am satisfied beyond reasonable doubt that it was.

As I construe the letter, it is an attempt by F.S.A.A. to coerce Qantas into not employing the informant during June 1981. The only reason which could in the circumstances be suggested as to why Qantas should do this was the informant's refusal or failure to take part in industrial action and the union's attempt to discipline him for doing so. There is no suggestion, on the evidence, that he was an unsatisfactory employee. In other words, F.S.A.A. was in effect asking Qantas to take action against the informant because he had been suspended from the union for refusing or failing to join in industrial action.

It was argued at the hearing that the informant had not in fact refused or failed to join in industrial action and that therefore it could not have been for this reason that F.S.A.A. was asking Qantas to stand him down. This, it was said, was so notwithstanding that the charge may have been laid by Mr Jacobs and dealt with by the Federal Council in the belief that he had refused or failed to join in such action. Such belief, it was argued was irrelevant.

I am satisfied beyond reasonable doubt that the informant did refuse to join in industrial action. The question whether he "failed" to do so raises a different question but in the circumstances I do not need to consider it.

There can be no doubt that the union and its members were, in February 1981, engaged in industrial action against Qantas over the question whether they should have an added payment of $20.00 per week in relation to the SP 747. On 17 February a resolution was passed by the Federal Council of F.S.A.A. directing that no flight steward should work on any Qantas aircraft which has been prepared or in any way worked on by staff volunteer scab labour.

At a compulsory meeting held on 18 February, the informant clearly indicated his disagreement with this decision and moved a resolution.

In supporting this motion he made it clear to those present that he thought the industrial action should stop and they should go back to work. Problems then arose as to whether he should have a right of reply in relation to what he had said. He was refused a right of reply. He contested the chairman's ruling. The motion he moved was voted upon and declared lost. The meeting then resolved that no flight steward was to work on any Qantas aircraft which had been prepared or in any way worked on or manned by staff volunteer scab labour.

It was in the light of this that the informant sent his telegram tendering his resignation and stating:-

"Naturally it follows that I will be offering my services to Qantas forthwith.'

A copy of that telegram was sent to Qantas at the same time.

Counsel for F.S.A.A. submitted that this did not amount to a refusal to engage in industrial action. I am satisfied beyond reasonable doubt that it did. The informant's action in sending the telegram purporting to resign was clearly prompted by his view that the union should not engage in further industrial action and that, notwithstanding the resolution to do so, he himself would not. The telegram was not a valid resignation and he remained a member throughout. It was however a clear indication of his attitude, namely, that he was not going to join in the industrial action.

However, the action which Qantas was being asked to take in relation to the informant would not be action contravening s.5(1)(aa) unless it involved his dismissal, injury to him in his employment or altering his position to his prejudice.

Qantas was not being asked to dismiss him. I am satisfied, however, beyond reasonable doubt, that it was being asked to injure him in his employment within the meaning of s.5(1) of the Act.

It is difficult to conclude, on the evidence, that the informant would have suffered any loss of pay had he not been rostered for duty by Qantas during June 1981. The critical question is, of course, what was intended by F.S.A.A. in the letter of May 1st. I am not satisfied that it necessarily wanted Qantas to take action which would have deprived the informant of pay during that period. In the letter of 22 May, F.S.A.A. encouraged Qantas to act in this way but this is not, in my view, implicit in the letter of May 1 which is relied upon in the charge.

It is however clear, in my view, that in its letter of May 1, F.S.A.A. was in truth asking Qantas to stand the informant down from his employment as a flight steward during the month of June. Although the letter does not contain a specific request to this effect I think the last paragraph was in effect saying to Qantas - if you want to operate during June without industrial action, you should stand Mr Squires down because our members won't work with him. In the events which occurred, he was asked to leave the plane at Bahrain and he returned to Sydney as a passenger. This is only an illustration of the type of action which, I think, the union was asking Qantas to take.

In my opinion action by an employer in standing an employee down even on full pay for a month is action which injures the employee in his employment. In taking such action, he is being singled out by the employer and treated differently to other employees and for reasons not associated with the manner in which he is performing his work. An employee may not be entitled, under his contract of service, to demand work at a particular time or place, but when he is stood down, not because work is unavailable, but because of a request by his union, the taking of that step is, in my opinion, an injury to him in his employment.

The words "injure in his employment" are in the context of s.5 words of wide import. I do not regard them as referring only to financial injury or injury involving the deprivation of rights which the employee has under a contract of service. They are, in my view, applicable to any circumstances where an employee in the course of his employment is treated substantially differently to the manner in which he or she is ordinarily treated and where that treatment can be seen to be injurious or prejudicial. Singling him out to be stood down from his employment for a period in circumstances where his fellow employees won't work with him for that period is in my view clearly an injury to him in his employment.

It remains to consider whether the threat was made by F.S.A.A. with intent to coerce Qantas to take the action in question. It is for F.S.A.A. to prove on the balance of probabilities that its action was not taken with that intent. I am not so satisfied. Indeed I am satisfied that the intent so to coerce Qantas was a substantial and operative factor in F.S.A.A. making the threat. On receipt of the letter Qantas would clearly understand, in the context of industrial relations, that if they wished to avoid industrial action they should stand Mr Squires down during June 1981. In the circumstances, it is difficult to form any other conclusion than that F.S.A.A. intended by sending the letter to coerce Qantas into taking the action I have already discussed. In his letter of 22 May the secretary of F.S.A.A. said that he did not intend to intimidate and was simply stating the facts. This may be so but his intention cannot affect what seems implicit in F.S.A.A.'s action in sending the letter of May 1 1981 to Qantas.

For these reasons, the defendant should, in my view, be convicted of an offence against s.188(1)(b) of the Act as charged.

No. 22-25 inclusive of 1982

These charges depend upon the effect of the directive given by the Federal Council of F.S.A.A. on 22 May 1981 that all its members should not work with the informant for a period of one month commencing June 1, 1981.

Combined, these charges are alleging that F.S.A.A. by giving that directive was imposing a penalty or disability upon the informant by reason of the circumstance that he had failed or refused to join in industrial action in breach of s.188(1)(e) of the Act.

Both parties agreed that if I was satisfied that F.S.A.A. was guilty of one of these charges, it would be unnecessary for me to deal with the others.

In my opinion the offence charged in matter No. 24 of 1982 has been established by the informant. I am satisfied that F.S.A.A. in giving the directive to its members on 22 May 1981 imposed a disability upon the informant by reason of the circumstance that he had refused to join in industrial action.

A directive by a union to its members not to work with a particular member clearly amounts to the imposition on that member of a disability within the meaning of s.188(1)(e). Indeed, in the context of industrial relations, it is difficult to conceive of any circumstance more likely to have this effect.

The directive of 22 May 1981 was a direct consequence of the decision of the Federal Council on 30 April 1981. At that meeting a resolution was passed that a letter be forwarded to Qantas pointing out that no member should be asked to operate any aircraft on which the informant was rostered during the entire period of his suspension. This letter was subsequently sent and the directive of 22 May is clearly an implementation of that resolution. Furthermore the directive itself refers to the charge laid by Mr Jacobs and the resolution fining and suspending the informant of 30 April. The resolution of 30 April was passed by reason of the refusal of the informant to engage in industrial action. I have already found that he did so refuse and I think it is clear that the resolution of April 30 was passed by reason of this refusal. Both the charge and the minutes of the meeting strongly confirm this. The directive of 22 May 1981, being the mere carrying into effect of that resolution, is, in my view, also to be regarded as having been given by reason of the fact that the informant refused to engage in industrial action in February 1981.

In the circumstances of this case, I am satisfied beyond reasonable doubt that F.S.A.A., an organization registered pursuant to the Act imposed a disability upon the informant, a member of F.S.A.A. and that the informant had refused to join in industrial action. I am not satisfied on the balance of probabilities that F.S.A.A. did not impose that disability by reason of the circumstance that he had so refused to join in industrial action. Indeed, I am satisfied, on balance, that the disability was imposed because he did so refuse. It was at least a substantial and operative reason causing F.S.A.A. to give the directive.

I am therefore of the opinion that F.S.A.A. should be convicted of the offence charged in matter No. 24 of 1982.

For the reason mentioned earlier, it is unnecessary for me to consider whether any of the other charges (i.e. in matters Nos. 22, 23 or 25 (inclusive)) have been made out.

PENALTY

At the hearing it was agreed that I should first consider whether any of the charges had been made out and that, should I so consider, an opportunity should be given to counsel to address me on the question of penalty.

Being of the opinion that the defendant committed the offences charged in matters No. 21 and 24 of 1982 the matter may be relisted for that purpose. I will not make any formal orders until I have decided on penalty.