The Australian Workers Union v Johnson Matthey (Aust) Ltd - [2000] FCA 360

FEDERAL COURT OF AUSTRALIA
The Australian Workers Union v Johnson Matthey (Aust) Ltd [2000] FCA 360
INDUSTRIAL LAW – industrial action by employees – whether protected action – dismissal and threatened dismissal of employees – whether dismissal and threatened dismissal by respondent employer constitutes contravention of s170MU and/or s298K of Workplace Relations Act 1996 (Cth) – whether respondent employer offered employees inducements to resign from registered organisation in contravention of s298M of Workplace Relations Act 1996 (Cth) - whether conduct alleged by the applicant made out
Workplace Relations Act 1996 (Cth) ss 170MM, 170MO, 170MU, 298K, 298L, 298M, 298V
Davids Distribution Pty Ltd v National Union of Workers (1999) 91 FCR 463 distinguished
Burswood Resort (Management) Ltd v Australian Liquor Hospitality and Miscellaneous Workers Union [1999] FCA 1443 distinguished
Ryde-Eastwood Leagues Club Limited v Taylor (1994) 56 IR 385 referred to
Walplan Pty Ltd v Wallace (1985) 8 FCR 27 followed
Patrick Stevedores Operations No 2 Pty Ltd & Ors v Maritime Union of Australia & Ors (1988) 195 CLR 1 applied
Jones v Thiess Bros (1977) 30 FLR 422 followed
THE AUSTRALIAN WORKERS UNION v JOHNSON MATTHEY (AUST) LTD
(ACN 004 146 838)
V 425 OF 1999
MARSHALL J
MELBOURNE
31 MARCH 2000

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

V 425 OF 1999

BETWEEN:

THE AUSTRALIAN WORKERS UNION
APPLICANT

AND:

JOHNSON MATTHEY (AUST) LTD
(ACN 004 146 838)
RESPONDENT

JUDGE:

MARSHALL J

DATE OF ORDER:

31 MARCH 2000

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:
1. It is declared that the respondent contravened s170MU(1)(a) of the Workplace Relations Act 1996 (Cth) (“the Act”) by:
(a) dismissing Mr Mrmacoski,
(b) injuring Mr Mrmacoski in his employment, and
(c) altering the position of Mr Mrmacoski to his prejudice;
wholly or partly because Mr Mrmacoski proposed to engage in protected action.

2. It is declared that the respondent contravened s170MU(1)(a) of the Act by:
(a) dismissing Mr Naumovski,
(b) injuring Mr Naumovski in his employment, and
(c) altering the position of Mr Naumovski to his prejudice;
wholly or partly because Mr Naumovski proposed to engage in protected action.

3. It is declared that the respondent contravened s298K(1) of the Act by:
(a) dismissing Mr Mrmacoski,
(b) injuring Mr Mrmacoski in his employment, and
(c) altering the position of Mr Mrmacoski to his prejudice;
for reasons which included a reason that Mr Mrmacoski was a member of the applicant.
4. It is declared that the respondent contravened s298K(1) of the Act by:
(a) dismissing Mr Naumovski,
(b) injuring Mr Naumovski in his employment, and
(c) altering the position of Mr Naumovski to his prejudice;
for reasons which included a reason that Mr Naumovski was a member of the applicant.
5. It is declared that the respondent contravened s298K(1) of the Act by threatening to dismiss Mr Scicluna for reasons which included the reason that he was a member of the applicant.
6. The application otherwise be dismissed save for any question relating to compensation or penalty.
7. The application be…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2000] FCA 360
Decision Date: 31 MARCH 2000

CaseChat Overview and Summary

The Australian Workers Union (the Union) brought proceedings against Johnson Matthey (Aust) Ltd (the Company) in the Federal Court of Australia. The Union alleged that the Company had engaged in conduct that contravened various sections of the Workplace Relations Act 1996 (Cth). The alleged conduct included the dismissal and threatened dismissal of employees who were members of the Union and who had engaged in protected industrial action. The Union also alleged that the Company had offered inducements to employees to resign from the Union. The Union sought declarations that the Company had contravened sections 170MU, 298K and 298M of the Act. The court was required to determine whether the actions of the Company amounted to dismissals or threatened dismissals for reasons that contravened the Act. The court also had to decide whether the Company had offered inducements to employees to resign from the Union in contravention of the Act.

The court found that the Company had contravened sections 170MU, 298K and 298M of the Act. The court found that the dismissal of two employees, Mr Mrmacoski and Mr Naumovski, and the threatened dismissal of another employee, Mr Scicluna, were unlawful. The court found that the dismissals and threatened dismissals were because the employees had engaged in protected industrial action and because they were members of the Union. The court also found that the Company had offered inducements to employees to resign from the Union in contravention of section 298M of the Act. The court found that the Company had offered Mr Scicluna a payment of $500 if he resigned from the Union. The court found that this offer was an unlawful inducement. The court dismissed the application in all other respects.

The court made various declarations in favour of the Union. The court declared that the Company had contravened section 170MU(1)(a) of the Act by dismissing Mr Mrmacoski and Mr Naumovski, injuring them in their employment and altering their positions to their prejudice. The court declared that the Company had contravened section 298K(1) of the Act by dismissing Mr Mrmacoski and Mr Naumovski, injuring them in their employment and altering their positions to their prejudice. The court also declared that the Company had contravened section 298K(1) of the Act by threatening to dismiss Mr Scicluna. The court adjourned the application to allow the parties to make submissions regarding compensation and penalty.

Orders

Orders of the court

1. It is declared that the respondent contravened s170MU(1)(a) of the Workplace Relations Act 1996 (Cth) (“the Act”) by:

(a) dismissing Mr Mrmacoski,

(b) injuring Mr Mrmacoski in his employment, and

wholly or partly because Mr Mrmacoski proposed to engage in protected action.

2. It is declared that the respondent contravened s170MU(1)(a) of the Act by:

(a) dismissing Mr Naumovski,

(b) injuring Mr Naumovski in his employment, and

wholly or partly because Mr Naumovski proposed to engage in protected action.

3. It is declared that the respondent contravened s298K(1) of the Act by:

(a) dismissing Mr Mrmacoski,

(b) injuring Mr Mrmacoski in his employment, and

for reasons which included a reason that Mr Mrmacoski was a member of the applicant.

4. It is declared that the respondent contravened s298K(1) of the Act by:

(a) dismissing Mr Naumovski,

(b) injuring Mr Naumovski in his employment, and

for reasons which included a reason that Mr Naumovski was a member of the applicant.

5. It is declared that the respondent contravened s298K(1) of the Act by threatening to dismiss Mr Scicluna for reasons which included the reason that he was a member of the applicant.

6. The application otherwise be dismissed save for any question relating to compensation or penalty.

7. The application be adjourned to not before 11.30 am on 27 April 2000 to deal with any submissions regarding compensation and penalty issues.

Background

Background to the litigation

On 29 July 1999, the applicant, The Australian Workers Union (“the Union”) made application pursuant to s170NF(5) and s298T of the Workplace Relations Act 1996 (Cth) (“the Act”) in respect of certain conduct which it alleged had been engaged in by the respondent, Johnson Matthey (Aust) Ltd (“the Company”). The sections of the Act alleged to have been contravened by the Company are ss170MU, 298K and 298M of the Act.Factual Background The Union is an organisation of employees registered under the Act. The Company employs persons eligible to be members of the Union at premises in Settlement Road, Thomastown, an industrial area in the northern suburbs of Melbourne. During February 1999 some employees of the Company met with an organiser employed by the Union, Mr Mastrandonakis, to discuss the prospect of the Union representing employees of the Company and raising with the Company issues of concern to employees. The idea of contacting the Union had its genesis in a discussion involving Mr Scicluna and two other people who were then employed by the Company. The first two meetings took place in a park directly across the road from the Company’s premises. The first of those meetings occurred on or about 17 February 1999. About 30 employees of the Company attended. They discussed a range of matters with Mr Mastrandonakis including occupational health and safety and wages issues. Mr Mastrandonakis provided attendees at the meeting with application for membership forms to facilitate their joining of the Union. At the second meeting, Mr Scicluna was elected as shop steward. After the meeting he informed Mr Guy of his election. Mr Guy is the manager of the Company’s products division. Mr Guy responded by saying to Mr Scicluna words to the following effect:“You know that the union will not come in here.” At or about the same time, that is February 1999, Mr Scicluna posted a notice on the Company’s noticeboard advising of a meeting of members of the Union. After he did so he was approached by Mr Guy and asked who put the notice up. When Mr Scicluna replied that he had put the notice up, Mr Guy said words to the following effect:“Don’t fucking do it again.” On 18 March 1999, pursuant to s170MI(2) of the Act, the Union gave the Company notice of its intention to try to make an agreement with the Company under Div 2 or 3 of Pt VIB of the Act and to have such agreement certified under Div 4 of Pt VIB of the Act. A catalogue of claims constituting matters that the Union proposed should be dealt with by the agreement were set out in the notice in accordance with s170MJ(c) of the Act. Unsuccessful negotiations were conducted between Company and Union representatives concerning the Union’s claims in May and June 1999. On 23 June 1999 a meeting of employees occurred at the Company’s premises. Some 40 to 45 employees of the Company attended the meeting. Mr Mastrandonakis addressed the meeting. He referred to the fact that negotiations had stalled. Mr Scicluna also addressed the meeting. He recommended that industrial action should be taken to show the Company “that we were serious in relation to those negotiations”. Mr Mastrandonakis and Mr Scicluna suggested that a vote be taken on whether a strike should take place. The persons attending the meeting voted unanimously in favour of strike action.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

MARSHALL J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: MARSHALL J

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 425 OF 1999

BETWEEN:	THE AUSTRALIAN WORKERS UNION APPLICANT
AND:	JOHNSON MATTHEY (AUST) LTD (ACN 004 146 838) RESPONDENT
JUDGE:	MARSHALL J
DATE OF ORDER:	31 MARCH 2000
WHERE MADE:	MELBOURNE