Sutherland, D. v Hills Industries Ltd

[1982] FCA 182

Re: DONALD SUTHERLAND
And: HILLS INDUSTRIES LIMITED
No. 3 of 1982
Industrial Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY
INDUSTRIAL DIVISION
Keely J.

CATCHWORDS

Industrial Law - dismissal of union member - whether dismissal of employee because of his propensity as a union member to "stir up trouble" is a dismissal "by reason of the circumstance" that he is a member - whether "act . . . for the purpose of furthering or protecting the industrial interests" of the union includes act for the purpose of doing so indirectly - whether "authority expressly conferred . . . " under union rules.

Conciliation and Arbitration Act 1904 - ss.5 (1)(a), 5 (1)(d), 5 (1)(f)

HEARING

MELBOURNE

#DATE 18:8:1982

JUDGE1

This is an information under s.5 of the Conciliation and Arbitration Act 1904 (the Act) by Donald Sutherland (the prosecutor) who was at all material times a member of the Amalgamated Metal Workers' and Shipwrights' Union (the union). As amended by consent it charged that on Thursday 25 March, 1982 Hills Industries Limited (the company) at Edwardstown dismissed the prosecutor from its employ by reason of the circumstances that he:-

"(a) Was a member and/or delegate of the Amalgamated Metal Workers' and Shipwrights" Union an organisation registered pursuant to the Conciliation and Arbitration Act 1904 as amended;

(b) Being a member of the said Union which is seeking to (sic) better industrial conditions was and is dissatisfied with his conditions;

(c) Being a member and/or delegate of the said Union had done and proposed to do an act or thing which is lawful for the purpose of furthering or protecting the industrial interests of the organisation and its members being an act or thing done within the limits of the authority expressly conferred on him by the said Union in accordance with the Rules of the said Union."

The company pleaded not guilty to the charge.

Paragraph (b) of the charge, based upon s.5(1)(d) of the Act, has not been made out in my opinion and can be dealt with briefly. Although Mr. Sutherland gave evidence that he was "dissatisfied with his conditions", he conceded that he was not aware of "any claims that have been made by the union on the company in respect of wages" after a national agreement as to wages and hours of work was reached in December 1981 between the union and employers in the industry generally and incorporated into the award by variation; nor of any union claim on the company as to "the nature of training or supervision people should undertake for new work"; nor of any claim, subsequent to the national agreement, made on the company by "the union from its registered office" (as distinct from members of the union) "relating to the implementation of the 38-hour week"; nor had there been any "claim by the union . . . for restoration of the previous lunch break".

Each of these concessions was made by Mr. Sutherland frankly and without hesitation. Throughout his long stay in the witness box, (including about 60 transcript pages of cross-examination) he impressed me as being a very honest witness who went to considerable pains to qualify his statements where it was necessary to do so in the interests of accuracy. In the light of the concessions to which I have referred, it has not been proved that the union was "seeking better industrial conditions" in the sense used in s.5(1)(d) i.e. seeking identified industrial conditions and not merely having a general objective of seeking better industrial conditions.

In the course of ruling upon the admissibility of evidence at an early stage of the hearing, I expressed my agreement, with respect, with the following statement by Northrop J. in the Australian Industrial Court in Heidt v. Chrysler Australia Ltd. (1976) 26 F.L.R. 257 at pp.269-270 :-

"One of the chief objectives of any organization of employees is to seek better industrial conditions for its members. The words 'an organization which is seeking better industrial conditions' contained in s.5(1)(d) do not refer to this general objective but must refer to identified industrial conditions which the organization is seeking to better."

It is not necessary for me to deal with the matter referred to in the next sentence in that judgment and I would prefer to reserve my opinion on that question for a case in which it is necessary to decide it and an opportunity exists for a fuller argument than has occurred in this case. Perhaps I should add, however, that in my opinion his Honour, in saying in that next sentence ". . . the employee member must be dissatisfied with the same industrial conditions . . . ", was not intending to convey that the member must be shown to have been dissatisfied with each and every one of the identified industrial conditions the subject of a claim by the union, but rather that the member must have been dissatisfied with some of the same industrial conditions which the union is seeking to better.

As to the word "delegate" appearing in paragraphs (a) and (c) of the charge (as amended), during his final address Mr. Johnston Q.C., who appeared with Ms. McLean for the prosecutor, conceded that on the evidence the defendant company had not been shown to have been aware of the fact that Mr. Sutherland was a delegate and therefore "could not have taken into account, in dismissing him, the fact of his being a delegate, or the fact of his having done anything in the capacity of a delegate.". Accordingly it was common ground that the court did not have to determine whether Mr. Sutherland was a delegate; however, Mr. Johnston did not concede that he was not a delegate and Mr. Bleby, who appeared with Miss Harrison for the company, did not concede that he was a delegate.

At the time of his dismissal the prosecutor was a member of the union and was employed as a second class machinist by the company in its commercial antenna division (the division) at Woodlands Avenue, Edwardstown. The company's work in that division was "jobbing" work involving little repetitive work and including the production of stainless steel parts and steel antenna towers.

It was admitted by Mr. Bleby on behalf of the company that at all material times:-
(1) The union was a registered organization of employees within the meaning of the Act.
(2) The company was incorporated under the Companies Act (S.A.) 1962.
(3) The company was bound by the Metal Industry Award 1971 (as amended) by virtue of its membership of the Metal Industries Association of South Australia, a registered organization of employers within the meaning of the Act.
(4) The rule book tendered in evidence contained the registered rules of the union.

It was common ground that Mr. Sutherland was informed of his dismissal by Mr. Pfarr, the foreman of the division, and that another employee, Mr. Weissenbock, was dismissed at the same time. The following evidence was given by Mr. Sutherland as to the conversation he had with Mr. Pfarr after being told of his dismissal:-

"I said 'Why?' and he said 'We just do not have enough work.' . . . I said, 'I don't understand,' and the reason why I said that, which I elaborated to him although I am not reproducing the exact words, was that usually when there is a problem of this nature the company calls a meeting of all workers and explains the situation - where there is a serious situation, whether it be about re-organization in the factory or whatever - and I did not understand. Then I said, 'Has it got anything to do with my work?' and he most strongly assured me and said, 'No, no; definitely it has nothing to do with your work', at which I was relieved. Once again I am reproducing this part of the conversation exactly: I said, 'Could you repeat that, please?' and he said, 'It has definitely not got anything to do with your work'."

The statement to Mr. Sutherland that the dismissal had "definitely not got anything to do with your work" may be compared with the evidence of Mr. McComish, the manager of the division. He gave evidence that Messrs. Sutherland and Weissenbock "seemed to be slow in the actions they were doing", and "their attitude to their job was not as good as the others" - matters he said that he had previously remarked upon to Mr. Pfarr.

I accept Mr. Sutherland's evidence as to what Mr. Pfarr said to him as being accurate, notwithstanding the persistent challenge made to it in cross-examination. On the day following the giving of that evidence by Mr. Sutherland (i.e. after an opportunity to read the transcript of his evidence and obtain specific instructions) Mr. Sutherland was cross-examined as to whether anybody had told him that it was not because of his work performance. Mr. Sutherland answered that Mr. Pfarr had told him that the dismissal was not because of the quality of his work. Immediately after the luncheon adjournment Mr. Bleby returned to the same subject and, doubtless on express instructions, said :-

"I put to you that at no stage during any of the discussions you had which involved Mr. Pfarr, either at the time when he told you that you were dismissed or in the subsequent discussions, that Mr. Pfarr said that the dismissal had nothing to do with the quality of your work or work performance or words to that effect? --- Are you putting to me that those words were never used by Mr. Pfarr?
Yes? --- No, that is not correct, he did use those words."

In opening the case for the defendant, Mr. Bleby stated that no-one had said to Mr. Sutherland at that time that his work was satisfactory. Further, in his evidence Mr. Pfarr initially expressly denied that he had made any such statement during that conversation, as follows :-

"Did he ask you at any stage during the course of that interview if the dismissal was anything to do with his work? --- No.
Did you otherwise comment on the nature and quality or the satisfactoriness or otherwise of his work? --- No."

I do not accept either of those statements.

However, he said that, in a conversation later on the same day with Mr. Donnon - an organizer of the union - Mr. Sutherland and others present, he had said to Mr. Sutherland words to the effect that he had "no complaint about (the prosecutor's) work record". Mr. Sutherland had already given evidence that a similar statement was made during discussions that day between Messrs. Pfarr, Johns (a personnel officer), and Fitzpatrick on behalf of the company and Messrs. Sutherland, Weissenbock and Donnon.

The company contended that it had become necessary to retrench two employees from its commercial antenna division by reason of a general reduction in orders being received by the company. Mr. Pfarr said that he had the power to dismiss employees in the factory but that he "would get confirmation from Mr. McComish before exercising that power". Mr. Pfarr gave evidence in considerable detail as to how he went through the list of employees by himself and the various considerations he took into account in the selection process that he said resulted in the decision to dismiss Mr. Sutherland and Mr. Weissenbock. It is not necessary to set out in detail the many criticisms that can be made of that evidence. However, his evidence was particularly unconvincing when he gave "examples which weighed in (his) mind in the selection process". He said that on the day before the dismissals he told Mr. McComish who "agreed with my conclusions.". Mr. McComish gave evidence, which I accept, that it was his decision to dismiss Mr. Sutherland but that he made that decision in conjunction with Mr. Pfarr who made the recommendation.

On the evidence, Mr. Sutherland, who joined the union shortly after he began working for the company in July 1979, was probably the first of the employees (approximately 15 including the foreman and leading hands) in the company's commercial antenna division to do so. He told the union that he wished to receive notices of meetings and other information and was put on the shop stewards' distribution list. He received from the union printed or roneod material which from to time he was distributed to other employees or placed on a notice board. In December 1981 he attended two stop work meetings called by the union - after notifying the foreman of his reason for taking time off. On the matter of the implementation of the 38-hour week Mr. Sutherland went to Mr. McComish and told him that he "had been asked by the other workers in the lunch room to speak to him about these matters". Shortly after this Mr. McComish and Mr. Johns attended the lunch room to speak to the employees on that subject.

There was "considerably increased discussion about and interest in the union in the early part of 1982" and five workers joined the union although not all of them stayed at the company; previously "the largest number of members of the union" was two although there "may have been a brief period of a month where there were three". About 10 days before his dismissal Mr. Sutherland handed out application forms for membership of the union to each of the production workers who were not already members. He handed them out openly in the lunch room, including handing them to both leading hands, "and the foreman (Mr. Pfarr) knew it was happening". He also "chased up" a "couple of the workers (who) were not in the lunch room" at the time. Mr. Sutherland gave evidence that he had "been active in attempting to enrol people" from the division into the union, that he had enrolled four employees as members of the union, that he discussed "membership of the union with various . . . fellow workers" and that he was proposing to continue his "efforts in that respect". Mr. Sutherland had expressed to Mr. Pfarr his dissatisfaction with "the level of union membership in general terms in the Hills plant and in (the) division in particular".

In his evidence Mr. Pfarr said that, at his initial interview in about August 1981 with the then manager, Mr. John Fitzpatrick, he (Mr. Pfarr) asked "is the shop covered by (a) union" and was told "there is only one union member as far as he (Mr. Fitzpatrick) knows, which was Don Sutherland". Under cross-examination he agreed that when he started in the division he was told that Mr. Sutherland was the only union member and that "there were no major union problems in that division". He volunteered that the fact that there were "only about 2 per cent of the work force unionized at Hills" was "one of the reasons why I joined" the company as a foreman. He later said that "before accepting the job" he inquired of Mr. Fitzpatrick and was told that the company overall "was practically ununionized" and agreed that "that information was one of the reasons why (he) took the job".

Mr. Pfarr volunteered during cross-examination that he "would prefer to work in a non-closed shop to a closed shop". It was suggested to him by Mr. Johnston that "there was no question of a closed shop" but he answered "that was the impression I had - the union was after it at Hills". On his evidence as a whole, including the last answer quoted, I have no doubt that Mr. Pfarr was very concerned at the increasing "unionization" of his division, that he considered it likely that more employees would join the union if Mr. Sutherland remained as an employee in the division and that he discussed those matters with Mr. McComish.

Mr. Pfarr agreed that, having been told that Mr. Sutherland was "handing out, or putting around" application forms for union membership, he "would have" spoken "to Mr. McComish on the subject", but said that he "could not give you a date". Referring to Mr. Sutherland's handing out of the application forms, Mr. Pfarr said "when Graham Kempster told me about it he said nobody was interested, and I passed that on" to Mr. McComish. The following passage is from the cross examination on this aspect:-

"When you said Mr. Kempster had said that nobody was very interested, did Mr. McComish say, "Well, that is good."? --- He would have favoured that response, yes, but I cannot recall that he did say, "That is good."
Anyway, he said something which indicated that was a pleasing fact, as far as he was concerned? --- Yes.
This news that perhaps Edge and perhaps Rzezkowski and perhaps Weissenbock had joined the union, I suppose you passed that information on to Mr. McComish, did you? --- Yes.
I take it that Tardrew (a leading hand who gave evidence on behalf of the company) did not say all on the one day, "Look, I think these three may have joined the union", but it came to you in dribs and drabs over a period of time and, each time you got a bit of information concerning one or other of them, you passed it on to Mr. McComish? --- Yes.
What did Mr. McComish say on those occasions? --- That he had not been told anything officially about either and basically adopted a wait-and-see attitude.
Did he say something to the effect, "I hope it is not so", or something that conveyed the same sort of attitude? --- Basically, yes."

Mr. McComish was asked in cross-examination whether he had been told by Mr. Pfarr that Mr. Sutherland "had handed out application to join the A.M.W.S.U. cards". He said :-

"I learned of that after Don had left us. I did not know beforehand. He did tell me, yes, but only after Don had left us.
. . . . .
Did he tell you that Gary Rzezkowski was a member or might be a member? -- Only after Don had left, did he mention that he thought Gary might be a member of the union, . . .".

Mr. McComish used the words "after Don (Mr. Sutherland) had left" three times in the passage just quoted and also used the same words on a number of occasions during later cross-examination. For example, on the subject of Mr. Pfarr's interview with Mr. Fitzpatrick before accepting the position as foreman (to which I have referred earlier) the following passage occurred :-

"Well, did he convey to you - were you aware that one of his reasons for taking the job was that it was not a union shop? --- No, I was not aware of that.
Did he ever convey to you ---? --- I was told that after Don had left, but I was not aware of that before, no.
You were told? --- After Don had left.
. . . . .
Did you also become aware that as far as he, Pfarr, was concerned, that was one of the reasons why he took the job, which moved him to take the job? --- He did say that to me after the event; yes, he did use those words . . .".

I reject as a deliberate attempt to mislead the court Mr. McComish's evidence that he did not know that Mr. Sutherland had handed out union membership application cards until "after Don had left". I accept Mr. Pfarr's evidence quoted earlier that Mr. McComish "said something which indicated that it was a pleasing fact as far as he (Mr. McComish) was concerned" that "nobody was very interested" in the union membership application cards which Mr. Sutherland was handing out. I also accept Mr. Pfarr's evidence that, when he gave information to Mr. McComish "in dribs and drabs" over a period of time that some employees might have joined the union, Mr. McComish said "something to the effect, I hope it is not so".

In some discussions between Mr. McComish, Mr. Fitzpatrick and Mr. Pfarr the word "stirrer" was used in referring to Mr. Sutherland. The transcript of Mr. Pfarr's evidence on this aspect includes the following passages :-

"Before the sacking were any of these questions ever discussed between yourself and Mr. McComish, yourself and Mr. Fitzpatrick or yourself and Mr. Johns or any combination of the group: Mr. Sutherland's union membership beyond the fact that he was a member? --- Occasionally it came up, yes.
Between whom? --- All of us.
Over what period of time? --- Ever since I started.
By occasionally, how often do you mean, once a month? --- Once every three months or perhaps once every six months.
If it was once every six months that would only be twice while you were there? --- It was not very often.
What was said on those occasions beyond the fact of his membership? --- That he could be a stirrer, could be stirring. That was about the extent of it."

. . . . .
"It would only be Mr. Fitzpatrick, Mr. McComish and myself. It was not complimentary, no."
. . . . .
"Who used the word "stirrer" or was it used by all three of you? --- It would have been more used by Mr. Fitzpatrick.
It was used by him of Sutherland on more than one occasion? --- He was the one who had known Mr. Sutherland longest.
He applied that word to him on more than one occasion, did he? --- Yes.
In discussions with these men did you apply that word to him? --- No.
Did you agree with Mr. Fitzpatrick? --- I always reserve my own judgment, on my own observations.
When Mr. Fitzpatrick on more than one occasion referred to him as a stirrer, did you agree, or say nothing, or disagree? --- I felt he was entitled to his opinion, and that was it.
What did you say to Mr. Fitzpatrick? --- I did not agree, or disagree.
But Mr. McComish used the word? --- I cannot recall, I do not think so.
Did Mr. Fitzpatrick use it in the presence of Mr. McComish? --- That is his normal way of talking."

In those answers as to the use of the word "stirrer", Mr. Pfarr was not entirely frank but nonetheless his answers may be contrasted with the evidence of Mr. McComish. Asked in cross-examination whether Mr. Fitzpatrick had said to him that Mr. Sutherland "is a stirrer" Mr. McComish said :"Not that I recollect; he may have done but not that I can recollect". Later he told the court that Mr. Fitzpatrick had not described Mr. Sutherland to him "as a stirrer" until "after Don (Mr. Sutherland) had left"; he also said that Mr. Fitzpatrick had never said to him that Mr. Sutherland "was stirring". Mr. McComish's evidence conflicts with Mr. Pfarr's and I reject as untrue both his earlier claim that he could not "recollect" and his later statement that the remark was not said until "after Don had left".

In my opinion both Mr. McComish in deciding to dismiss Mr. Sutherland, and Mr. Pfarr in making the recommendation for dismissal, did so for reasons which included, as a substantial factor operating on their minds, the fact that Mr. Sutherland was at the time a member of the union and as such was likely, if he remained in the company's employment, to enrol and to seek to enrol other employees as members of the union, a situation which plainly they both wished to prevent (cf. Mr. Pfarr's "impression" that "the union was after" a closed shop in Hills - referred to earlier).

In Cuevas v Freeman Motors Ltd. (1975) 25 F.L.R. 67 at p. 78-79, Smithers and Evatt JJ. said :-

"There are, of course, active shop stewards and passive shop stewards. It is apparent that an active shop steward may be responsible for recurring incidents irritating to management and creating in the mind of the employer a desire to be rid of the employee because although otherwise he may be a satisfactory workman, nevertheless as a shop steward his capacity for stirring up what the employer regards as trouble is to the employer quite intolerable.
If, in such a case, the employer dismisses the employee not because of any particular item of conduct but because of his propensity as such to stir up such trouble then, in our opinion, the dismissal must be characterized as a dismissal arising by reason of the circumstance that the employee is a shop steward. In a sense such a dismissal arises out of past conduct as a shop steward, but it is more than that. It is a dismissal to escape trouble arising from conduct and situations likely to arise in the future out of the circumstance that and because the particular employee holds the position of shop steward."

Their Honours were, of course, dealing with a charge under s. 5(1)(a) that the dismissal was by reason of the circumstance that the employee was a shop steward; the part of the charge presently being considered (also under. s. 5(1)(a)) is that the dismissal was by reason of the circumstance that the employee was a member of the union. However, in my opinion the principle is the same and applies to the present case where (using their Honours' words) the employer dismissed Mr. Sutherland "because of his propensity as" a member to stir up trouble. Mr. Sutherland's dismissal was "to escape trouble arising from conduct and situations likely to arise in the future out of the circumstance that and because the particular employee" was a member. On the evidence as a whole I am quite satisfied that both Mr. McComish and Mr. Pfarr deliberately took advantage of the opportunity, presented by the need to retrench two of the employees in the division, to dismiss Mr. Sutherland. In deciding to dismiss him - instead of another employee - they were motivated to a large extent by the fact that, as a member of the union, he was likely to continue to enrol fellow employees as members with the resultant danger - in their eyes - that a majority of the employees in the division would soon become members of the union - a division which, when Mr. Pfarr started work in August, 1981 had only one employee in the union.

Mr. McComish and Mr. Pfarr both denied on oath that Mr. Sutherland had been dismissed for any of the reasons alleged in the charge. On quite a number of occasions Mr. Pfarr was less than frank in answering questions - despite certain admissions as to his attitude towards unions in a factory. I do not accept his denial that "the fact that Mr. Sutherland was a member of the (union had) any bearing at all on (his) decision".

In his evidence in chief Mr. McComish was asked did he know that Mr. Sutherland had attempted to enrol other employees as members and said:-

"No, no, I did not know that he was attempting to, I would imagine he would have tried that but I did not know.
Well, if he had, would that have made any difference to your decision? --- No, not at all.
Had any influence on it at all? --- No."

In the cross-examination quoted earlier, he denied that he knew that Mr. Sutherland "had handed out application to join the A.M.W.S.U. cards" until "after Don (Mr. Sutherland) had left us". I reject as untrue the statement that he did not know that fact until "after Don had left us" (which is contrary to Mr. Pfarr's evidence). I also reject as untrue his denial that any such knowledge "would have made any difference to (his) decision".

I have treated as irrelevant the evidence of certain statements made by Mr. Ling, the managing director of the company, which were said to be critical of unions. However, it follows from what I have said as to the evidence of Mr. McComish, who made the decision, and Mr. Pfarr, who made the recommendation on the matter, that the defendant company has failed to satisfy the court on the balance of probabilities that it was not actuated by reason of the circumstance that Mr. Sutherland was a member of the union. Accordingly the company has committed an offence against s. 5(1) of the Act.

It is desirable, however, that I also consider the charge based upon s.5(1)(f) of the Act - set out earlier as paragraph (c) of the charge. Mr. Johnston relied upon the "acts" done by Mr. Sutherland, as a member, in enrolling and seeking to enrol fellow employees in the division as members. Mr. Bleby submitted that "evidence as to the prosecutor's activity in enrolling members" was not relevant to this aspect of the charge. The evidence was admitted subject to objection, Mr. Bleby agreeing to the question of admissibility being argued in final address.

Mr. Johnson submitted that these were acts which were "lawful for the purpose of furthering or protecting the industrial interests of the organization or its members". Mr. Bleby did not dispute that the acts were lawful but put two major submissions. First, he submitted that such acts were not "for the purpose of furthering or protecting the industrial interests of the organization or its members". He emphasised that the "interests" must be "industrial interests". He submitted that the effect of the word "industrial" in its context was :-

"that the act or thing which is lawful must be something that one normally does, or has accepted as being done, by way of pursuing the industrial activities of the union. Typical of such an act or thing would be the attendance at a stop work meeting, or voting in favour of pressing certain claims; perhaps even going on strike in certain circumstances in support of claims which can be said to be in industrial interests of the organization."

He submitted that enrolling members was "just in the general interests of the organization" although it:

"may indirectly be in the industrial interests of the organization in the sense that the more members there are in the organization, the stronger the organization is going to be and therefore the more success it is likely to have in pressing its claims."

He contended that the section in saying "the act or thing . . . for the purpose of furthering or protecting the industrial interests of the organization or its members . . . " did not prohibit the dismissal of an employee by reason of the circumstance that he had done an act which was done only indirectly for that purpose and that an act which was done only indirectly in the industrial interests of the union was too remote to come within the scope of the sub-section.

As s.5(1)(f) is a statutory provision imposing criminal penalties, if "there appears any reasonable doubt or ambiguity" it must be resolved in favour of the defendant company. (London & Country Commercial Properties Investments, Ltd. v Attorney-General (1953) 1 W.L.R. 312 per Upjohn J. at p. 319 - cited in Maxwell The Interpretation of Statutes 12th edition p. 239). However, I do not consider there is "any reasonable doubt or ambiguity" in the meaning of the words. Having regard to the purpose of the provision, as explained by Mason J. (with whom Stephen and Jacobs JJ. agreed) in Bowling v. General Motors Holden Pty. Ltd. (1976) 12 A.L.R. 605 at p. 616, I consider that the section did not intend to exclude from its prohibition, a dismissal which was otherwise within the sub-section but which related to an act which was done "for the purpose of furthering or protecting the industrial interests of the organization or its members" in the sense of strengthening the organization by increasing the number of its members and of increasing the organization's bargaining position with the particular employer by reason of the intended increase in the number of employees who were members and as such directly represented by the organization.

Mr. Bleby also submitted that there was no evidence as to Mr. Sutherland's purpose in enrolling the members. However, Mr. Sutherland gave evidence as to his dissatisfaction with the extent of union membership in the division and that he had from time to time "requested the union to produce material urging employees, generally speaking of the company, but including the employees in (the) division to join the union". I am satisfied on Mr. Sutherland's evidence as a whole that his acts in enrolling and in seeking to enrol fellow employees as members were "for the purpose of furthering or protecting the industrial interests of the organization or its members".

Mr. Johnston submitted that, in enrolling and seeking to enrol his fellow employees as members of the union, Mr. Sutherland was doing acts which were "within the limits of authority expressly conferred on him by the organization in accordance with the rules of the organization." He submitted that the "authority" was conferred by the rules and relied in particular upon sub-rule 1. of rule 45 and upon the rule setting out the objects of the union. Rule 45 includes the following:-
MEMBERSHIP

"1. Applicants for membership must complete and sign a standard application form which must be forwarded by the applicant, or the member enrolling him/her, together with the Entrance Fee and Contributions to the State Office of the Union. Such application forms shall be sent to the National Council within three months.
2. The State Secretary, having ascertained that the applicant is engaged in an occupation covered by the Union and is otherwise suitable and qualified to be a member, shall then allocate the new member to the Branch nearest to where he lives and shall advise the Branch Secretary and the new member accordingly."
Rule 2 includes the following:-

"The objects of the Union shall be:-
. . .
The organisation of all workers qualified for membership . . .".

Mr. Johnston submitted that, by reason of the words "forwarded by . . . the member enrolling him" in rule 45 sub-rule 1, Mr. Sutherland's actions, as a member, in enrolling and seeking to enrol fellow employees as members each constituted "an act or thing done within the limits of authority expressly conferred on him by the organization in accordance with (its) rules".

Mr. Bleby conceded that the requisite authority "may be conferred expressly by the rules themselves" and that it is not necessary that the authority be given by a resolution of an appropriate body in accordance with the rules. However, his second major submission was that rule 45 does not "expressly" confer on a member the authority to enrol members but is merely "giving recognition to the implied authority to a member to enrol someone", which recognition, he conceded, is given expressly. He also agreed that there would be an "authority expressly conferred on him" within the meaning of s. 5(1) (f) if the rule said "All members of the union are hereby authorized to enrol and seek to enrol members".

Mr. Bleby also relied upon the following words in rule 27:-

"The powers of shop stewards, shop committees and convenors shall include the following:
To enrol persons qualified to be members of this Union under these rules."

He submitted that the express power to enrol members, there conferred upon the persons specified, impliedly excluded the conferring of that power upon persons who were simply members. He submitted that the words "the member enrolling" in rule 45 referred only to "a member who is a shop steward or a person acting in accordance with the rules" and suggested that there "may be very good reason (to confine) that authority to shop stewards because there is money involved. . . ".

I am unable to accept the contentions that rule 45 should be so construed and that rule 27 contains such an implication. In my opinion rule 45, read in the context of the rules, including the object relied upon by Mr. Johnston, confers upon the members of the union the authority to seek to enrol employees as members and confers that authority "expressly" within the meaning of s. 5(1)(f) of the Act.

For the reasons which I have already given in dealing with paragraph (a) of the charge (under s. 5(1)(a)), I have come to the conclusion that the defendant company, in deciding to dismiss Mr. Sutherland, did so for reasons which included, as a substantial reason for making that decision, the reason that he had been both enrolling and seeking to enrol fellow employees as members of the union, circumstances which in my opinion fell within s. 5 (1)(f) of the Act. The company has failed to satisfy the court, on the balance of probabilities, that, in dismissing Mr. Sutherland, it was not actuated by reason of the circumstances alleged in paragraph (c) of the information. Accordingly, the company is convicted of the charge that at Edwardstown on 25 March, 1982 it dismissed Donald Sutherland from its employ by reason of the circumstances that he was a member of the Amalgamated Metal Workers' and Shipwrights' Union an organization registered pursuant to the Conciliation and Arbitration Act 1904 as amended and that being a member of the said union had done and proposed to do an act or thing which is lawful for the purpose of furthering or protecting the industrial interests of the organization and its members being an act or thing done within the limits of the authority expressly conferred on him by the said union in accordance with the rules of the said union.

On the question of the appropriate penalty to be imposed, I have taken into account the fact that the company has not previously been found guilty of any breach of the Act and also the evidence as to the reduction in the volume of orders being received by the company, with a consequential need to dismiss some employees. On the other hand, as I have already said I am satisfied that the company deliberately took advantage of the opportunity, presented by the need to retrench some employees in the division, to dismiss Mr. Sutherland. In all the circumstances I impose a penalty of $300-00 on the company. As agreed during the hearing, the prosecutor has liberty to apply for an order for the reimbursement of any wages lost by him and for a direction that he be re-instated by the company.