Wood v City of Melbourne Corporation

[1979] FCA 42

Indus-irial law - Sta tu to ry offence - Sta tu to ry presumpticn

of t h e i n t en t ion of the defendant - In ju ry t o employee by

defendant - Whether by reason of the circumstance t h a t the

employee had f a i l e d t o jo in i n i n d u s t r i a l a c t i on - Substantial

and opera t ive f a c t o r inf luencing the ac tus reus - Corporate

decis ion - I d e n t l f l c a t i o n of the declslon-maker.

Conciliation and Arb i t ra t ion Act 1904 S. 5 ( l ) ( a a ) , (4 ) .

COLIN KXITH WOD V. LORD MAYOR, C O ~ C I L L O ~ S	AXD CITIZENS OF
TiG C I T Y OF PTELBOUR?yT.

C O W :

Smithers J.

Melbourne

9 May 1979

a I N THE FEDERAL COURT O F P.USTRALIA

E' l VICTORIA D I S T R I C T R5GISTRY V. N o s . 1 , 2 and 3 of 1979

INDUSTRIAL D I V I S I O N i

I N THE NATTER O F THE CONCILIATION

AND ARBITFATION ACT 1904

B E T W E E N :

COLIN K E I T H 't!OOD

Informant

LORD I W O R , COUPICILLORS LYD

C I T I Z E N S O F W3 C I T Y OF MELEOURJS

D e f e n d a n t

O R D E R

JUDGE I M I N G ORCER:	SMITHERS J.
DATE :	9 M a y 1979

WHERE iZADE: -MELBOURNE

THE COURT ORDERS THAT:

The i n f o r m a t i o n s l a i d i n m a t t e r s V . N o s . 1 , 2 and 3

of 1979 be d i s m i s s e d .

9

I N THE FEDERAL COURT OF AUSTRALIA)

V Nos. 1 , 2 a n d 3 of 1 9 7 9

VICTORIA DISTRICT RYGISTRY	1
INDUSTRIAL DIVISION	I

I N THE MATTER OF T.m CONCTLIATION

AND ARBITRATION ACT 1904

B E T W E E N :

COLIN KEITH WCOD

Informant

LORD MAYOR, COUNCILLORS and CITIZENS

OF THE C I T Y OF PELEOUFLnE

D e f e n d a n t

CORAM:	S m i t h e r s	J.
-

9 May 1979

REASONS FOR JUDGTG?IT

SMITHERS J.

On 8 March 1978 one Frank Richard Kane,who was then

an employee of t h e defendant i n t h e capaci ty of a motor

mechanic,was stood down by the defendant. On 30 March 1978 he

was dismissed by t h e defendant. By s . 5 ( l ) ( a a ) of t h e Conci l ia-

t i o n a n d Arb i t r a t i on Act 1904 ( t he ~ c t ) a s amended by the Conclliz

t i o n and Arbitration Amendment Act(Ko. 3)1977 (No.108 of 7977)

it is a crime f o r an employer t o dismiss h i s employee o r t o

ingure him i n h i s employment by reason of t h e circumstance t h a t

t h e employee has refused o r f a i l e d t o j o in i n i n d u s t r i a l

ac t ion . There can be no doubt t h a t t o dismiss o r s tand d a m an

employee is t o i n j u r e him i n h i s employment. I n d u s t r i a l a c t i on

is defined i n s .4(1) of t h e Act i n terms which c l e a r l y lnclude

s t r i k e ac t ion . Thus s . 5 ( l ) ( a a ) makes it a crime f o r an employer

t o dismiss o r s tand an employee down by reason of the

circumstance t h a t he has refused a r f a i l e d t o j o in i n s t r i k e

ac t ion . Relevant p a r t s of s.5 a r e i n t h e following terms:-

"5(1) An employer s h a l l not dismiss an employee,

o r i n j u r e him i n h i s employment, o r a l t e r h l s

pos i t i on t o h i s p re jud ice , by reason of the

circumstance t h a t t h e employee -

. . .

) has refused o r f a i l e d t o j o in i n

i n d u s t r i a l a c t i on ;

(4) I n any proceedings f o r an offence aga lns t

- t h i s s ec t l on , i f a l l t h e re levan t fac-cs and

circumstances, o the r than the reason o r i n t e n t s e t

out i n t h e charge a s belng the reason o r i n t e n t of

an a c t i o n a l l eged i n the charge, a r e proved,

it l i e s upon the person charged t o prove t h a t t h a t

a c t i on was no t ac tuated by t h a t reason o r taken

with t h a t i n t e n t . "

In respec t of t h e d i smissa l and s tand down of Kane

t h r e e charges have been brought aga ins t t h e defendant under

s . 5 ( l ) ( a a ) 01 t h e Act. The t h r ee may be summarized a s follows:-

V No. 1 of 1979

That the defendant d id between about

8 March 1978 and 29 Merch 1978 contrary

t o t h e provisions of s . 5 ( l ) ( a a ) of t h e Act

i n j u r e Kane i n h i s employnent b y reason of

t h e circumstance t n a t he had refused o r f a l l e d

t o j o i n i n i n d u s t r i a l ac t ion . P a r t i c u l a r s

( a s amended) are:-

O f In ju ry of t h e s a i d Kane i n h i s

" ( a )	Employment:
The Council being bound t o pay t o t h e s a l d
Kane the wages and t o accord him the
condi t ions prescribed by t h e ?!eta1 Indus t r l c s
Award 1971, between about the Exn ddy 01' March 1978 and the 29th day of ;*?arch 1978
stood-down the s a l d Kane from h i s s a l 6
employment and refused o r f a l l e d t o
pay him i n t h e manner and a t t h e tlme
presc r ibed by the s a i d h a r d o r a t
a l l , t h e wages which he would otherwise
nave been e n t l t l e a t o be pald .
(b)	O f
Action:

Refusal o r Fa i l u r e t o j o in i n I n d u s t r i a l

The s a i d Kane refused o r f a i l e d on o r

about t h e 6 th and 7 t h days of March 1978

t o Jo in i n a s t r l k e by members of t h e

Vic tor ian Brench of t h e Amalgemated

Metalworkers and Shlpvr ights Unlon employed

by t h e Councll a t i t s Green S t r e e t Depot

and elsewhere.

V No. 2 of 1979

That t h e defendant d id between about 8 March 1978

and 29 March 1978 con t ra ry t o the p rov ls lons of

s . 5 ( l ) ( a a ) of the Act a l t e r the pos l t l on of Kane

t o h i s p re jud ice by reason of t h e c i rcuns ta rce

t h a t he had refused o r f v l e d t o j o ln I n indust r l , - . l

ac t ion . The particulars glven of the a l t e r a ~ l o n

of Kane's p o s i t i c n t o h i s prejudice a r e l d e n t l c e l

t o those glven i n V , No.	1 of	1979 of i n i u r y t c Ksne	i r ?
- .-

h i s employment and t h e p a r t i c u l a r s of the r e f u c s l c l a~

t o j o in i n i n d u s t r l a l act1011 a r e a l s o identical

t o t h e p a r t i c u l a r s given i n V. No. 1 of 1979.

V No. 3 of 1972

That t h e defendant on o r about 30 March 1978

contrary t o the provisions of s . 5 ( l ) ( a a ) of the Act

dismissed Kane from h i s e-ployment by reeson of

t h e circumstance t h a t ne had refused o r f a l l e d t o

j o in i n i n d u s t r i a l ac t lon. S iml la r particulars t o

those i n V. Nos. 1 and 2 of the r e f u s a l o r f a i l u r e

t o j o i n i n i n d u s t r l a l a c t i o n a r e given.

The charges are brought by one Colin Keith Wood as an

officer of the Industrial Relations Bureau pursuant to the power

of that body under Part VIA of the Act as inserted by s.10 of tk.

Conciliation and Arbitration Amendrent Act 1977(Act I(o.64	of 197
To each of the charges the defendant pleaded not silty.

In these cases, by reason ofs.5(4) of the Act,

the onus of proving that the refusal and failure of Mr. Kane to join in strike action was not a substantial and operative factor inzluencing the defendant to take the adverse actions that it took agalnst Kane lies upon the defendant. The defend-

ant is a corporate body,the supreme authority in which is in the

- Counci1,meeting in buslness sesslon. But much of the business

of-the Council is conducted by its executive officers of whom

the Chief is the Town Clerk, Mr. Rogan. The Councll is

responsible for the actions of those officers when they are

acting within their authorltjr. When they so act their acts,

and their relevant states of mind in performing those acts,

are the acts and the state of mind of the Council. Thls

is of importance in thls case because the disnlssal of Mr.

Kane on 30 March 1978 was the act of the Tovrn Clerk and the to join in industrial action. The fact that: for the first thee

standing down of Mr. Kane on8 14arch 1978 was,as a natter

of form, the act of Mr. Reilly the Deputy Town Clerkpalthough as

appears below, the probabilities are that in substance it was tnc

act of Mr. Rogan. It is clear that at all material times

. days of the strike Kane had jolned in such action is irrelevant.

h-OD 6 March 1978 he refused and failed to renain on strlke

in conjunction with his fellow employees. The strike

continued from 1 Merch untll 31 March 1978. The critical

question before the Court is whether in dismissing Kane or

standing him down the defendant did so by reason of the

circumstance that Kane refused and failed to join in that strlke

Construction of S .?(l) (aa)

It is necessary to consider what is involved in

the conception of refusing or failing to jcln in industrlal

actior. Section 5(l)(aa) being a statutory provision

creating a crime,all the elements of the crime sust be

ascertzined upnr? z proper c n n s t n l c t i n n n f the words usecl

by Parliament. Those words indicate that the crime is

committed when an employer has dismissed or otherwise

injured the employee in his employment Itby reason of the

circumstance that the employee has refused or failed to

join in industrlal action". In construing these words

special consideration is necessary to the meaning of the

ewressions "refused to join" and "failed to joinu. What is

wrapped up in the word ttjoinu is of special significance.

Section 5(l)(aa) contemplates that the employee might have joined with others in industrial action taken by employees acting in concert. The significance of the word "join" is that it indicates the relevant refusal or failure is a

refusal or failure to enter intr, the implied agreement

with fellow employees involved in participating in

concert in industrial action.

In my opinion,upon the proper construction of

s,5(1)(aa),the concept of dismissing an employee or

injuring him in his employment by reason of the circumst,-.nce

t h a t he refused o r f a i l e d t o j o i n i n i n d u s t r i a l a c t i o n

involves more than dismissing him merely because he con-

t i n u e s t o perform h i s d u t i e s i n h i s employnent when

o the r s a r e , f o r ins tance ,on s t r i k e . It involves t h a t

t h e employer has something more than t h a t i n h i s mind a s

a f a c t o r in f luenc ing hlm t o dismiss o r take o ther a c t i o n

aga ins t the employee. That something more i s t h a t t h e

employee has no t l l joined'l i n , f o r ins tance , t h e s t r i k e . On

t h i s b a s i s a d i smissa l i n contravention of s .5(1) (aa) 1s

one c a r r i e d out a s a r eac t i on n o t znly t o t h e employee

continuing t o work but a l s o t o t h e aspec t of h i s conduct

i n h i s not jo in ing i n t h e s t r i k e , no t consenting t o be a

p a r t i c i p a t i n g member o f , s o t o speak, the team composed of

t h e o the r employees a c t i n g - in concer t i n t h e i n d u s t r i a l

ac t ion .

There i s considerable a u t h o r i t y a s t o what i s

necessary t o s a t i s f y t h e c r i t i c a l requirement of s .5 (1)

(aa ) t h a t t h e adverse ac t i on taken by t h e employer is

taken Ifby reason of t h e circumstance" t h a t some spec i f i ed

event has occurred. It i s c l e a r t h a t the requirenent i s

no t s a t i s f i e d un less the spec i f i ed event i s a s u b s t a n t i a l

and opera t ive f a c t o r inf luencing t h e enployer t o take t h a t

adverse ac t ion . If t h i s requirement i s s a t i s f i e d it i s

n o t t o t h e po in t t h a t o ther f a c t o r s were a l s o s u b s t a n t i a l

and operative f a c t o r s . See Mikasa (N.S .W.) Pty. L t d . v.

Fes t i va l S to res (1972) 127 C.L.R. 617, General Xotors-

Holdens Ptu. Ltd. v. Bowling (1976) 51 A.L.J .R. 235 pzir t icularly

p e r Mason J. a t p. 241, Roberts v. G e ~ e r ~ l rlotors-h'gldens

-	Employees' Canteen Societv Inc. (1975) 25 F.L.R. 415 and
Cuevas v. Freeman Motors L t d . (1975) 25 F.L.R. 67.

m e Presumption S .5(4) -

It i s convenient a t t h i s s t age t o g ive cons idera t i cn

t o the s t a t u t o r y presumption a r i s i n g from s .5 (4) of the Act.

As o r i g i n a l l y enacted s . 5 was d i r ec t ed t o t h e protectzon of

employees from dismissnl o r o ther i n j u r y i n t h e i r employment,

a t t h e hands of employers who disapprovedof employees being

un ion i s t s o r engaging i n union a c t i v i t i e s , no mat ter how

l eg i t ima te . It was recognised by Parliament t h a t an employee

who suf fe red dismissa l o r o the r i n j u r y i n h i s employment

because of h i s union membership o r union a c t i v i t i e s would be

i n g r e a t d i f f i c u l t y i n proving t ha t f a c t i n the absence of

s p e c i a l ev iden t ia ry provis ions . Accordingly Parliament

e i i t i~ ied s .5(4) which imposed on an empioyer, agains-t whom a

d ismissa l o r o the r i n j u r y of a un ion i s t was provsd, the burden

of proving t h a t t h e a c t i o n taken by him was not taken by reason

of t h e employee's union membership o r a c t i v i t y . I n such a

case t h e presumption s i ts comfortably alongside i t s bas ic

assumptions namely t h a t it i s probable t h a t some employers

would take h o s t i l e a c t i o n aga ins t a c t i v e un ion i s t s and t h a t i n

any p a r t i c u l a r case t he re would be difficulty i n proving t h e t

t h e d i smissa l , o r o the r h o s t i l e ac t i on , was taken because the

employee was an a c t i v e un ion is t .

But it sits l e s s comfortably alongside para . (aa ) of S.

5(1) because i n genera l it i s un l ike ly t h a t any employer w i l l

dismiss o r take o the r h o s t i l e a c t i o n aga ins t an employee because

he has refused o r f a i l e d t o j o in i n a s t r i k e o r o the r

i n d u s t r i a l ac t ion . There i s o r d i n a r i l y no inducement t o an

employer t o dispose of any employee who continues t o work when

o the r s go on s t r i k e . But t he re i s t h e p o s s i b l l l t y t h a t the re

w i l l be alien pressure on t h e employer t o dismiss o r otherwise

i n j u r e the non-s t r iker i n h i s employment. Such pressure may

wel l take the form of a r e f u s a l t o nego t ia te a se t t lement of

t h e s t r i k e un??ss t h e employer tdkes ac t i on and the employer - . - -.

. - - - - - . . .

may wel l submit t o t h a t pressure. The reason f o r such

pressure would normally be unlon resentment aga ins t t h e employee

f o r no t a c t i n g i n concert with the s t r i k e r s . But even i f

t h e employer does bow t o t h a t pressure t he re is l i t t l e l i k e l i h o o

t h a t h i s d ismissa l of the employee w i l l be ac tua ted by t h e

reason which ac tua ted t h e U-nion. The actuating reason w i l l be

t o p l aca t e the ini ion. The reasons producing h o s t i l i t y

i n t h e union aga ins t t h e s t r i k e r a r e un l ike ly t o be those

which would inf luence t h e employer t o dismiss t h e

czpl-.,-c3 ,,,. c.r-- is t h c c o u r x of rdkz i t t in , - t o t h c unior,

pressure . And i n any event t o dismiss an employee merely

t o p l aca t e a union would not be a contravention of s .5 (1) ( aa ) .

It i s apparent the re fore t h a t , i n a case l i k e the

p re sen t , t he re i s an element of a r t i f i c i a l i t y i n t h e s t a tu to ry

presumption a r i s i n g f r o m s . 5 (4 ) . Accordingly, it i s t h e

more r e a d i l y displaced. 'thenthe defendant contends t h a t what

t h e s t a t u t e prima f a c i e presumes i s not t h e f a c t , h e i s

a s s e r t i n g what i s i nhe ren t ly probable.

When the s t r i k e commenced on 1 March 1978 Kane was

a member of the AmalgamatedMetal Workers and Shipwrights

Union (A.M.W.S.U.) t o which h i s fe l low employees of h i s

category belonged. But he resigned f i v e days l a t e r i n

>

circumstances which gave r i s e t o c r i t i c i s m andzrimony a s

between himself and the Union. Before the s t r i k e had

s t a r t e d a meeting was held t c consider s t r l k e ac t i on

i n support of a log of claims. Kane and a number of o ther employees opposed such ac t i on and it was declded t o hold a

s e c r e t b a l l o t . Kane ac ted a s s c ru t i nee r . He s a i d t h a t the

ques t ion on which the b a l l o t was he ld was whether a further

s e c r e t b a l l c t should be held on the ques t ion whether the

employees should a c k a l l y go on s t r i k e . The r e s u l t of the

. b a l l o t was 25 a f f i rma t ive and 11 negative votes . It

appears t h a t on t h i s r e s u l t being announced t h e employees

ac ted a s i f t h e ques t ion voted on had been whether a c t u a l l y

t o go on s t r i k e . Accordingly, the a f f i rmat ive vote vras

t r e a t e d a s a vo te f o r t h e s t r i k e . A l l employees includlne;

Kane went on s t r i k e a s from 1 March 1978.

On 6 and 7 March Kane repor ted f o r work and t h e r e a f t e r

u n t i l he was dismissed he was t o t h e knowledge of t h e

defendant, ~ e a d y and w i l l i n g t o perform h i s ordinary

d u t i e s and des i r ed t o do so.

The f a c t t h a t Kane f a l l e d t o jo in i n t h e s t r i k e a f t e r

6 March con t r ibu ted , d i r e c t l y o r i n d i r e c t l y , t o var ious

consequences:-

( a ) c e r t a i n members of t h e Union developed a s t rong

an t ipa thy towards him;

(b ) on 7 March un ion i s t s e s t ab l i shed p i cke t l i n e s

t o obs t ruc t Kane i n h i s approach t o h i s p lace of

work a t t h e Green S t r e e t garage i n North

Melbourne and t h e r e was a r i s k of violence;

( C	by 8 March the Municipal Employees Union (?.I.E.U.) had declared black the Green S t r e e t garage where
Kane worked and d r i v e r s of veh ic les , repa i red

a t t h a t d e p o t by t h e apprentice,Who was exempt from

the s t r i k e , refused t o use such veh i c l e s ;

( a ) by 8 March t h e t o o l shop and p a r t s s t o r e was

declared black by the Municipal Of f ice rs Association

(M.O.A.) s o f a r a s Kane was concerned;

( e i n t h e week ending 10 March t h e d r i v e r s of a l l

t h e seventy-nine c leans ing veh ic les of the

defendant re turned such veh ic les a s unserviceable

and could accordingly be taken t o have refused

duty ;

(f) by 8 March t h e M.O.A. and M.E.U. had declared

support f o r the s t r i k e a t t h e depot and a claim

of t h e t h r e e Unions - A.M.W.S.U., M.O.A. and

M.E.U. o r t h e i r members t h a t Kane be dismissed

had developed;

(g) a reasonable f e a r arose i n the defendant t h a t

t o permit Kane t o at tempt t o do any work on any

vehic le i n the garage would lead t o an i n d e f i n i t e

ban on t h e use of t h a t veh ic le ;

.

(h	by 8 March it had become impossible f o r t h e
defecdant u s e f u l l y t o employ Kane;
( i )	i n the course of nego t ia t ions t o s e t t l e the
claims which had given r i s e t o the s t r i k e ,

statements were made by r ep re sen t a t i ve s

of t h e employees inc luding M r . Halfpenny,the Victorian

Secre ta ry of the A.M.W.S.U., 3s a r e s u l t of

which t h e Town Clerlc, the Lord Mayor and

var ious Council lors became convinced t h a t

t h e i s s u e s a r i s i n g from t h e l o g of claims could

no t be s e t t l e d and t h e employees would no t

r e t u r n t o work un less Kane was dismissed;

by 17 March the accumulation of garbage i n t h e

c i t y s t r e e t s cons t i t u t ed a s e r ious danger t o the

h e a l t h of the pub l ic .

It i s convenient t o observe t h a t although it i s

a crime t o s tand down an employee by reason of the

circumstance t h a t he has refused o r f a i l e d t o j o in I n s t r l k e

ac t i on , it i s not a crime under the Act, a t any r a t e ,

t o dismiss an employee by reason of the conduct of o ther

persons, although t h a t conduct may have been induced by

t h e employee's r e f u s a l o r f a i l u r e t o go on s t r i k e . And

i n t h e s i t u a t i o n which arose out of Kanets r e f u s a l and

f a i l u r e t o jo in i n t h e s t r i ke , M r . Rogan,the Town Clerk,

had c l e a r l y i n h i s mind t h e d i s t i n c t i o n between h i s and

t h e Counci l ' s a t t i t u d e t o Kanefs conduct and the

a t t i t u d e of the Unionsto t h a t conduct. So f a r a s Rogan

was concerned he had no an t ipa thy t o Kane f o r f a i l i n g t o

s t a y on s t r i k e and indeed was sympathetic t o him and the

p r i n c i p l e of personal independence by which he appeared

t o be influenced. It was Roganls view t h a t the Unions'

a t t i t u d e t o Kane was determined l a r g e l y by Kane's f a l l u r e

t o remain on s t r i k e , h i s r e s igna t ion from t h e Union,

and t h e a l l eged circumstances the reof . But equa l ly c l e a r l y

Kane's f a i l u r e t o remain on s t r i k e was i n i t s e l f a c t i o n

i n respec t of vhich Rogan had no c r i t i c i sm . The defendant

des i red t h a t none of i t s employees should be on

s t r i k e .

The Dismissal - 30 March 1978

So f a r a s t h e d ismissa l i s concerned it appears

t h a t a t an e a r l y s tage of t h e s t r i k e Rogan r e a l i s e d

t h a t t he re was considerable opposi t ion on t h e p a r t of

t h e Unionists employed by the Council, no t only members of

t h e A.M.W.S.U. but a l s o of the M.E.U. and the M.O.A.,to

re tu rn ing t o work alongside Kane. By 15 March, a f t e r

a conference with represen ta t ives of the A.M.M.S.U., M r .

Rogan had r e a l i s e d t h a t opposi t ion t o working wi th

Kane was hardening. According t o Rogan, M r . IIalfpenny

reported t h a t two d i f f e r e n t groups i n h i s Union had

r e j e c t e d any p o s s i b i l i t y of working with Kane i n t h e

fu tu re . On the af ternoon of 29 March,Mr. Falfpenny at tended

a Council m e e t l n g , a t w'llch according t o Rogan, t h e r e was a

discussion of the genera l situation, t h e l o g of c l a i v s

and whether t h e men would work wl th Kane. M r . Rogan had

been worklng diligently t o br ing ebout a compromise whereby

Kane might be moved t c another d e p a r t ~ e n t , and t h l s compromise

had been discussed more than once. However, M r . Rogan s a i d

t h a t a t t h i s Council meeting Nr. Ha1fpenr.y repor ted t h a t t h e r e had been a leak of t h e proposed compromise and h i s

members had r e j e c t e d it.

So f a r a s M r . Rogan was concerned he came t o t h e

conclusion a t t h a t s t age t h a t t h e compromise,for which he

hoped and worked,was s lnp ly no t a t t a i n a b l e . It was h i s

b e l i e f t h a t Council members were of t h e same opinion and

t h a t t h e r e was a genera l view i n Council t h a t , because of

t h e hea l t h s l t u a t l o n i n t h e ci ty,Kane would have t o be

dismissed. He s a i d t h a t a t t h e Corncl1 rneetlng M r .

Halfpenny had explained t o Council t h e reasons why, a s he understood i t , t h e menbershlp would not work wi th Kane.

Council passed a r e so lu t i on referring t o t h e S t a f f Boar6

consideration of t h e continuance of Kanels emplopent ,

wi th an l n t i n a t i o n t h a t i f Kane f a l l e d t o r e f u ~ e Hal fpemyls

a l l e g a t i c n s it should dlsrnlss Kane. On Thursday 30 March

Kane at tended t h e S ta f f Board meeting which a f t e r qucst ionlng

him decided t h ~ t he had no t f a i l e d t o

r e f u t e the allegations of Halfperiny and accordingly it had

no authority t o dismiss hlm. P.c t h l s s t age Rogan considered

. .-- -

that as Chief Executive Offlcer of the Council it was his

duty to deal with the situatlon on his own initiative.

The engagement of staff of Mr. Kanets category and the

termination of the employment of such staff were ultimately

m~tters in his area of authority. He knew that he had

taken every step possible to continue the employment of Kane in

some area of the Council's activities and believed that while

he persisted in such efforts the men would not return

to work and the health situatlon in the city would continue to

detprinpate ?l?rmjngly, HP belie~reC! th?t it was the view

of Councillors generally that Kace had to be dismissed

so that the strike could be settled. As that was hls own view he concluded that he must dismiss Kane himself, that

is, that he must himself order the dismissal. He told the

Lord Mayor that the Staff Board could not dismiss Kane under

the Council's resolution, but notwithstanding that fact he,

Rogan,had come to the conclusion that Kane must be

dismissed afid that it was his duty ts dismiss hlm. He informed

the Lord Mayor that the responsibility was his and his elone.

He said that judglng from the com.ents of Councillors of

29 March he was satisfied that they regarded

dismissal as inevitable on gromds of public health and he was

sure that the Lord Mayor would slso be so satisfied.

R~gan~said that having regard to the position in the clty,

the grave dangers to the health of the publlc,and the official warnings whlch had been given to him and the Council in that respect,he proposed to dismiss Kane.

The Lord Mayor conunented, in effect, that he did not see

what else the Town Clerk could do. Rogan imrediately told

the Board that Kane was to be dismissed forthwith and he

was dismissed. Xr. Rogan is the Chairman and senior member of t

Staff Board whlch is composed of senlor Council Officials.

It is not clear whether Rogan told the Board that he

intended to dismiss Kane or whether he instructed the Board that it would have to dismiss Kane. But the point is of no conseqcence. The Council's direction to the Board had

misfired and the question of disxissa: was at that stage again nithln the area of Rogants authority. There is no doubt thst whether the Board was the formal instrwnent of

. .

the dismissal or whether the dismissal proceeded directly pursuant to the persoml instructions of Rogan, by-passing the Board, the dlsmlssal proceeded according to a declsion made by Rogan personally and for reasons which actuated

him.

It is accordingly the reasons whlch actuated Rogan

whlch are crltlcal to thls case. Rogan was certainly an

acceptable qb>71tness. He stated that the fact that Kane had

refused or falled to stay on strlke, llto joln in industrial

action", was not a factor actuatlng hlni in dlsmisslng Kane.

It was hls vlew throughout that Kane should not be disad-

vantaged in hls employment because ho refused to renlaln

on strlke. It was also his view that Kane should be free to

decide for hlnself whether he went on strike or stayed on

strike and that he should not be vlctimlsed in any way for

deciding to continue to perform hls dutles. It was also

Council pol icy t h a t t h e Council's a c t l v i t l e s should not

proceed i n "closed shop". I t was Council po l icy t h a t s t a f f

be employed without d l s t l n c t i o n between unionists and non-

un ion i s t s . Rogan was wel l aware of the genera l na tu re of

t h e . ob j ec t i ons of t h e s t r l k e r s and the Unlons t o t h e conduct 0:

Kane, which he bel ieved were t h e f a c t o r s which had influenced

them i n forming t h e m a t t i t u d e t o t h e f u r t h e r employment

of Kane. But h i s reasons f o r dismissing Kane were not t h e

reasons he bel ieved t o be those ac tua t i ng t h e s t r l k e r s and

t h e Unlons i n r e l a t l o n t o M r . Kane. M r . Rogan

was concerned and concerned only t o c r e a t e a situation i n which t h e en~ployees genera l ly would resume duty and c l e a r

t h e s t r e e t s .

. .

It was argued, a s I understood, t h a t l o g i c a l l y i n thesc c i r -

cumstanc?~ the defendant carinot = c a p a ffmdlng t h a t it was

by t h e circumstance t h a t Kane had f a i l e d t o s t a y on s t r i k e ,

b e c a u s e , s u b s t a n t i a l l y , i t was from t h a t circumstance t h a t

a l l t h e f a c t o r s by reference t o which Roganul t imate ly

dismissed Kane followed. But t h i s i s unsound. One must

go t o t h e words of t h e s e c t i o n , a s expow.ded by t h e High

Court, look i n t o t h e mind of M r . Rogan end ask what were t h e s u b s t a n t i a l and opera t lve f a c t o r s i n h i s mind. This

i s t o be determined not a s a mat te r of l o g i c bu t of f a c t .

If one looks i n t o h i s mind it is c l e a r t h a t t h e f a i l u r e

t o s t a y on s t r i k e was j u s t no t p resen t a s a n opera t lve

f a c t o r . The opera t lve f a c t o r s i n t h e mind ofRogan

included t h e a t t i t u d e s and r eac t i ons of o the r pcrs0r.s t o ,

amongst o ther mat te r s , t h e f a l l u r e of Kane t o s t a y on str i lce,

bu t h i s cwn a t t i t u d e t o t h a t f a i l u r e d id not induce and

would never have induced him t o t ake h o s t i l e ac t i on aga ins t K ~ c

It follows that I am satisfied that in respect

of the charge that the defendant disxlssed Mr. Kane on discussed above was the decisive event in the employment relatio ship of Kane with the defendant. However, the charges nunbered V1 anti V2of 1979 referred to above relate to the earlier event

or about 30 March,by reason of the clrcumstance that

he had refused or falled to join in industrial action,

the defendant has established,as on the balance of probabilities

that it did not disrnlss Kane by reference to that clrcumstance.

of 8 March when the defendan~ stood down Kane.

The Stand Do:*- - 8 March 1978

I turn to the charges concerning the events of 8

March 1978. Mr. Kane resigned from the A.M.W.S.U. on 6 March

and later that day he informed the personnel officer of

the defendant that he had so resigned

and intended to take no further part in the strlke.

The personnel officer directed Kane to report for work at the

Green Street Dzpot at one o'clock on that same after~oon. He was the only motor mechanic who reported for duty although an apprentice,who was not involved in the strike,also reported. He was directed to work on a

llIIalflingerll pavement cleaner on which there appeared

to be about eight days work for one mechanic. On 7 the depot he was met by a plcket line composed of members of the A.M.W.S.U. and pcssibly others. Kane passed through the picket line but not without opposition.

Late r on 7 March Kane was t o l d by the supervisor no t t o

r e p o r t f o r work on 8 March, although he would be pa id

a t normal r a t e s f o r t h a t day. The inference t o be

drawn i s t h a t it was des i red t o avoid a r e p e t i t i o n

of t h e p icke t ing i nc iden t s , i n which t he re had been a

d i s t i n c t p o s s i b i l i t y of violence.

Ejr :.Tai-ch, t:ii-ezts iqe1-e i-ei&-~e& by tire CuuriL;l

s t a f f from t h e M.O.A. t h a t i f Kane were allowed t o work a t

t h e depot by himself , he would no t be allowed t o ob ta in

from t h e s t o r e any spare p a r t s o r equipment, which he

needed t o perform h i s work, and i n f a c t the s t o r e was locked

aga ins t him. I n add i t i on by 8 March t h e garage was declared

"black" and it was reasonably fea red by Rogan, and no

doubt by R e i l l y , t h a t i f Kane were allowed t o work on any

vehic le t h a t vehic le could be declared,and could remain

black, f o r some i n d e f i n i t e per iod much t o the inconvenience

of t h e Council. From Monday 6 March u n t i l Saturday ?l

March Mr. Rogan, the Town Clerk,was i n Adelai2e with the

Lord Mayor on Council business.

During Rogan1s absence Nr. Rellly was the Actlng

Town Clerk and authorised to act as such. Rogan was expected

to return to duty in Melbourne on Monday 13 March.

On 7 and 8 March by frequent telephone collversations Rogan

was ~ e p t fully informed by Reilly of all developments in

relation to Kane. A meeting had been held on March 8

berween officers of the A.M.W.S.U., the M.E.U. , the

M.O.A. and the Council Staff Board. The Acting Tovrn Clerk

and officers of the Council attended the meeting.

The meeting discussed the asp26ts of the strike up to thet

tirne,including the lncident involving the picketing of

the rnornlng of March 7,and the fact that police had been in

attendance. The Union queried the classification of Kane

and asserted that he was only paylng dues to the Unlon 03

the basis of being a tradeSmanls assistant. Opposition was

expressed to the continued employment of Kane. After lengthy

discussions the Staff Board p~oposed to the Unions that

Kane should. be transferred from the Green Street garage to the electricity supply depertment provldlhg the Union's menbers

would work wlth hlm there. The Unlon agreed to put the propoz.

to the membershlp,on the conditions that Kane be requested

to become a 'lnion member by joining a trade union, that

he give an undertaking to abide by that unlonls policy

decisions and that he donate to the Lord I,!ayorls Fund the

monies earned while the strlke was in progress. Reilly

informed Rogan of the proposal and advised that he would be

speaking with Kanc l a t e r i n t h e day and seeking h i s r eac t l cns .

Rogan informcd Re i l l y , t h a t having regard t o t h e f a c t t h a t

t h e r e was a black ban on the garage and t h e s t o r e had been c l o s e d , it d id not appear t h a t t h e Councll could

employ Kane i n any way t h a t was u se fu l t o t h e Council and

accordingly i f Kane did no t accept t h e t r a n s f e r he would

have t o be s tood down. Rogan was of t h e b e l i e f t h a t t h e

re levan t award provlded f o r Kane's s tanding down i n such

circumstances. Later t h a t same day R e i l l y repor ted t o

Rogan t h a t Kane would accept the t r a n s f e r bu t not on the

condi t ions offered.

Re i l l y confirned t h a t because of the bans

t h e r e was no u se fu l work f o r Kane t o do and Rogan advised

Re i l l y t h a t i n t h e circumstances Kane should be s tcod down.

Rogan i n evicience,said t h a t he was f i rmly of t h e b e l i e f

t h a t Kane could not be u s e f u l l y employed,because he could

no t a c t u a l l y r e p a i r any veh ic les and i f by some method i n

t h e absence t h a t vehic le might be declared black because the garage of s t o r e s he d id manage t o r e p a i r a v e h i c l e ,

had been s o declared. He fea red t h a t i f t h a t happened

t h e p a r t i c u l a r vehic le could remain black even a f t e r

t h e s t r i k e was over and the Council would have any ~ i a s t e

c o l l e c t i o n vehicles , on which he worked, out of use i n d c f l n i t e l y .

I n a l l t h i s Rogan htid no c r i t i c i s m of Kane f o r deciding t o

come t o work. He sa id : -

"1 do not th ink you could be c r i t i c a l of

a man wlshlng t o work even though it was

causing you t roub ies . "

Also he s a i d t h a t t h e C o u n c i l ~ s genera l a t t i t u d e : -

. . . . -.

"has always been t h a t it never i n q u i r e s

whether a pe r scn i s a u n l o n l s t o r nor ."

He s a i d t h a t t h e r e had been cons ide rab le union p p s s u r e

t o d e c l a r e s e c t i o n s of t h e C o u n c i l l s operations

'a c l o s e d shop' b u t t h e Council had never agreed .

Rogan s a i d t h a t t e c h n i c a l l y t h e a c t u a l d e c i s i o n t o

s t a n d Kane do3rm, which was made on t h e a f t e rnoon of March8

w a s made by R e i l l y pursuant t o h l s a u t h o r i t y a s Acting To:m

Clerk. I n substance however, a s i n d i c a t e d below, t h e r e

can bc l i t t l e doubt t h a t Rogan was t h e cant:-olling o f f l c c r .

.,

. It appears however, t h a t s o f a r a s can be ga thered

from conversa t ions between R e i l l y and Rogan, t h e y were

both of one mind namely, t h a t i n t h e circumstances n o t

only could Kane do no u s e f u l work f o r t h e Council working

by himself a t t h e depot wi thout access t o s t o r e s , b u t

t h a t t h e r i s k of t h e ex tens ion of the black bans and i n

p a r t i c u l a r t h e r i s k of v e h l c l e s being dec la red b lack was

such t h a t , i n t h e interests of t h e Council ,	Kane had t o
be s tood down.

I n a s i t u a t i o n such a s t h a t which arose an

employer is required t o consider h i s pos i t ion . So f a r a s

t h e Conciliation and Arb i t r a t i on A c t i s concerned he must

no t i n j u r e h i s emplcyee by reason of t h e circumstance t h a t

he has refused or f a i l e d t o j o in i n industrial ac t i on .

But it may wel l be t h a t , because of the conduct of o ther

people, he can continue t o employ t h e non-s t r lker only

t o h i s own disadvantage. He i s e p t i t l e d t o consider h l s own

i n t e r e s t s . According t o those i n t e r e s t s , but sub jec t t o the

law, he i s e n t i t l e d t o decide h l s own course of conduct.

H i s decis lon may be made by reason of t h e t o t a l s i t u a t i o n , i n

which c a s e , i t would be c o r r e c t t o s a y , t h a t it was made

by reason of each aspec t o r pa;t of t h a t s i t u a t i o n . But

equa l ly he may make h i s dec i s ion under t h e inf luence of one

o r o ther of the aspec t s of the t o t a l s i t u a t i o n t o t h e

exclusion of t h e o thers . In t h e s i t u a t i o n e x i s t i n g

on 8 March 1978 t h e r e were a number of i d e n t i f i a b l e

a spec t s which might have influenced the defendant i n i ts

r e l a t i o n s with Kane. It i s concelvable,but not l i k e l y ,

t h a t it would have been influenced by t h e f a c t t h a t Kene

d i d not s t a y on s t r i k e . But t he re were ~ t h e r aspec t s of t h e t o t :

situation having a d l s t i n c t bearing on' the i n t e r e s t s of tlbe

defendant. The general body of its employees were on strlke.

That strlke threatened the cleanliness and health of the

city. Strikers had developed a hostility to Kane expressed

in a disinclination to work with him. Kane's place of work

had been declared black,because of Kanefs efforts to continue

to work there,and further bans were either threatened or

reasonably feared if Mr. Kane were permitted to work on

any vehicle and Kane could not be usefully employed.

If the employer's course of conduct in dismissing

or standing Kane down was decided upon by the employer

by reference to eny or all of these aspects of the total

situation and was not a response or reaction to the aspect

that Kane did not join in the strike then, there was no

contravention of the section. In that sltuatlon it could

not be said that the employer had injured Kane,by reeson of

the circumstance that Kane had refused or failed TO join

in the strike. He was injured because other people had

created conditions implnglng upon the employer's interests

and the employer had acted by reason of those condlt: 7 ons .

The fact that some of those conditions had Seen created by the strikers or the Unionsin response to Kane's failure

to stay on strlke does not alter tnat. The reason for tl~elr

actions is not transferred to the employer in hls response

to those conditions.

Mr. Reilly did not glve evidence. It appears

he was on long s~rvice leave. No zpplication was made

for an adjournment so that he might glve evidence. It was argued on behalf of the informant that, Keilly not having

been c a l l e d a s a wi tness , t h e Court should no t be s a t i s f l e d

t h a t i n s tandlng down Kane, R e i l l y was no t ac tua ted

by t h e circumstance t h a t Kane had not remained on s t r i k e .

I n some cases a s i n i s + e r inference mlght have been made

from these mat ters but I do no t th ink t h i s i s such a case.

Rogan gave advice t o R e i l l y a s t o the course he should

t ake i n r e l a t i o n t o Kane and t h e reesons v~hy it appeered t o him

t h a t Kane should be stood. down. From the d iscuss ions between tht

two men it i s t o be i n f e r r e d t h a t Re i l l y concurred i n Roganls v Technical ly it was R e i l l y who stood Kane down on 8 FIarch. He ha z z t h n r i t y s o t o do and i f he s tood Kane down i n t h e exerc i se of

awn a u t h o r i t y , h i s ac t i on and t h e reasons which actuaieci him 12

i n g t h a t a c t i o n would, f o r t h e purposes of t h i s case ,be the ac-

and reasons of the defendant. The onus would l i e on t h e

defendant t o prove a s on a balance of p r o b a b l l l t l e s

t h a t t h e f a c t t h a t Kane had refused o r f a i l e d t o j o in i n

i n d u s t r i a l a c t i on was not a "substantial and operative

f a c t o r w inf luencing R e i l l y i n s tending Kane down. Re l l l y

was t h e only person who could prove t h i s positively and

h i s testimony on t h e po in t was ~ o ava i lab le . t

It i s however, always poss lb le t o draw an inference

a s t o t h e s t a t e of a man's mind from re l evan t circumstances.

To my mind the proper conclusion t o be drawn from those circumstances i n t h i s c n s e , i s t h a t it i s probable t h a t ,

t h e f a c t t h a t Kane had refused o r f a i l e d t o j o in i n l n d u s t r l

a c t i o n was no t a substantial and opera t ive f a c t o r l ~ l f l u e n c l r

Re i l l y t o s tand Kane dovm o r lndeed a f a c t c ~ r a t a l l . When t k

i s a s t r i k e , i n which c e r t a i n employees do not j o i n , t h e

employment of t h e non-str iking employees f requen t ly poses

problems f o r the employer. I n such cases t h ~ employsr may

well be unable t o provlde u se fu l work f o r t h e employee t o

perform. In r e c o g n i t ~ o n o f - t h i s , many Awards of t h e

Conc i l i a t ion and Arbitration Commission conta in provis ions

t h a t employses f o r whom, because of i n d u s t r i a l a c t i o n ,

no u se fu l work can be provided, may be stood down.

The Metal Insustry Award 1971, whlch i s re levan t t o t h e

employment o f t h e motcr aec;:anics does conta in such a

provls lon i n c lause 6(e) (i) acreof- By 8 N.larch 1378 a s

Kane was not a member of t h e A.M.W.S.U.it may be t h a t althocgh

t h e defendant remalned bound t o observe the provis ions of t h s t

Award i t s r l g h t t o s tand Kane down pursuant t o the Award

was i n doubt. But t h i s pos s ib l l i t - 1 i s i r r e l e v a n t .

Whether t h e s tanding dowr. pro?eeded under t h e Award oi.

otherwise, does no t a f f e c t t h e ques t ion whether i n s t v ld ing

down Kane the defendant ac ted by reason of t h e circurr .s tanc~s

t h a t he had refused o r f a i l e d t o j o in i n i n d u s t r l a l a c t i on .

It may a l s o happen t h a t t h e continued attendance

f o r work of the non-s t r lk lng enployees may evoke disturbar.ccs,

poss ib ly involving violence and black bans,of varying scope

and i n t e n s i t y . I f t h e n o n - s t r l k e r s c m o t bc u s e f u l l y employed.

and the employer s tands t h e employee-sdb7..x f o r t h a t reason,

then, h i s ac t i on i s c e r t a i n l y not taken by reason of t h e

circumstance t h a t the e ~ p l o y e e s h w e re fused o r f a i l e d t o jo ln

i n i n d u s t r l a l ac t lon . I t i s t m e t h a t i n a b z l i t y t o employ

t h c non-s t r lkcrs u se fu l l y a r i s e s from t h e s t r i k e . And no

ques t ion of employing the non-strikers u s e f u l l y would

a r i s e i f they had joined i n the s t r i k e . 3 u t

no t havlng jojned i n t h e s t r i k e t h e quest ion

of t h e i r u se fu l employment by the employer ~mmediate ly

a r i s e s . If because t he re i s no use fu l work t h a t can be

done he s tands them down, t h a t i s because he does not

wish t o pay wages with no bene f i t accrulng t o him. The

nexus of causat ion is between the appearance of t h e non- s t r i k e r s f o r work, t h e absence of use fu l work t o be done

and the l i a b i l i t y of t h e employer t o pay wages i f t h e

men a r e not s tood down. O f course when the re i s a s t r i k e

i n p rogress , the appearance f o r work of non-s t r ikers i s a

manifes ta t ion of t h e i r f a i l u r e t o j o ln i n t h e cu r r en t

i n d u s t r i a l ac t ion . But when they a r e s tood down because

no u se fu l work i s ava i l ab l e , t hey a r e not s tood dopm beceusc they

came t o work. They a r e s tood down because,being persons

who have repor ted f o r work,there i s no work f o r them.

The words of s . 5 ( l ) ( a a ) can only be satisfied ;;hen

it i s f a i l u r e t o j o in with the fe l low employees i n the

- s t r i k e which ac tua t e s the employer t o s tand down h l s

employee. Those words i np ly t h a t the employer's h o s t i l e 3ctic:l

aga in s t the non-s t r lker i s taken because the employer disapx-ovc*

of t h e f a l l u r e t o j o i n with the fe l low employees i n the

s t r i k e o r a t l e a s t r e a c t s t o t h a t aspect of the s i t u a t i o n

i n a manner i n j u r i o u s t o t h e non-str iker . But ac t i on

taken aga ins t t h e non-str iker because of t h e d i s rup t ion

of t h e cmploycrts establ ishment by t h e s t r i k e , o r because

he f e a r s violence i n and around h i s es tab l i shoen t a n d t h e

l i ke ,does no t imply any dlsapprovpl of o r any r eac t i on t o

t h e f a c t t h a t the =on-str lker has no t joined h i s felioY..r

workers i n t h e s t r l k e .

The circumstances re levan t t o R e i l l y ' s s t a t e

of mind include t h e contents of the many telephone

conversationstetween himself and Rogan on the clays of

7 and 8 March, i n which were discussed a l l the events of

and i n c i d e n t a l t o t h e s t r i k e . These corrprlsed Kane's

r e s igna t ion from t h e A.M.U.S.U. and t h e f a c t t h a t he had

repor ted f o r work. They discussed t h e a t t i t u d e of t h e

s t r i k e r s t o Kane, t h e establ ishment of t h e p i cke t l i n e s

and t h e turbulence connected therewi th , a s we l l a s the s t eps

taken t o t r y t o arrauge f o r t h e t r a n s f e r of Kane t o another

s ec t i on of the Council ' s a c t i v i t i e s , t h e d i f f i c u l t y i n

g e t t i n g any sec t i on of employees t o work wi th him, un less

he became a union member ready t o conform wi th union decis ions

and t h e problems assoc ia ted wi th Kanefs r e f u s a l t o agree t o

these l a t t e r demands. They discussed t h e black bans an the

garage and on t h e s t o r e , so f a r a s Kane was concerned,

t h e p o s s i b i l i t y of bans on veh ic les i f Kane worked on any

of them and t h a t i n t h e circilmstances it was impossible t o

f i n d use fu l work f o r Kane t o do. They discussed what cohrse

of conduct t h e defendant should adopt i n r e l a t i o n t o Ktinefs

employment.

It i s t o be noted t h a t Re i l l y repor ted every incieen-

as it occurred and, I would i n f e r , discussed the s ign i f i cznce

of each event. I would i n f e r a l s o from t h e contents of t h e

conversa t ions that Re i l l y was not speaking t o Rogan a s an

independent executivewho had mad3 up o r would make up

h i s own mind a s t o what he was t o do i n respec t of Kane, but

r a t h e r t h a t he was recognising t h a t the s i t u a t i o n was of

such de l icacy t h a t he was ignor ing h i s temporary t echn ica l

a u t h o r i t y i n Melbourne and r eac t i ng t o the r e a l i t y of the

s i t u a t i o n t h a t Rogan was t h e s en io r , whose lladvlcelf would be

law,and t h e person t o take t h e responsibility f o r what was

done. Roganfs capaci ty f o r t ak ing r e s p o n s i b i l i t y and

s t rong supervis ion i n h i s executive r o l e would support t h i s .

It i s c l e a r t h a t Rogan expected h i s l ladvicell t o be follorred.

It appears t h a t i n t h e i r d iscuss ions Kanels r e f u s a l

o r f a i l u r e t o j o in i n t h e s t r i k e was, n o t , a s such, discussed

a t a l l . Cer ta in ly t h a t aspect of t h e s i t u a t i o n , a s a f a c t o r

o r poss ib le f a c t o r having any relevance t o t h e course t o be

adopted towards Kane,does not appear t o have been mentioned.

The evidence of Rogan contained t h e fo1lo::ing passage:-

"It was i n the l i g h t of t h a t t h a t you concurred

with M r . R e l l l y l s vlew t h a t he had t o be stoocl

down?--- I am not sure t h a t I concurred wlth the

view, I th ink i t was my n e w and t h a t I advised

M r . Re l l l y t h a t i n view of a l l the clrcumsta!icec

which lncluded t h e black ban and l n a b l l i t y t o

use M r . Kane i n a ga ln fu l f a sh i cn , tha-c should

it t r a n s p i r e t h a t this corn?ronlse d ld not 7,lork

out then M r . Kane was t o be s tood dol.,~. Tha-c

was my advlce t o him end he ac-ced cn t h a t

subsequently when events turned out t h a t way.

A t t h a t s t age a r e you saying you were not i n a

sense taking over con t ro l of the i s s u e , you

were leavlng it -CO :Cr. Re l l l y t o nzke up h i s rnlnd

i n t h e l i ~ h t of your advlct.7--- Pu t t l ng lt i n a

p o l i t e way, yes , but i n a c t u a l f a c t I expected

him t o t ake my edvice.

If	you i n f a c t had gone t o , say , t h e Lord Mayor a t
t h a t time and PE had advised you t a k ~ -chat cocrsr
you would Lave cdtur. ' l ly i;lvan hced t o such
advice glven by the Lord Mayor?--- I would have

thought about i t , I would not have n e c e s s m l l y

ac ted on it. You see , the po in t i s - I io l low

t h e l i n e of your ques t ioning, o r I th lnk I do,

bu t i n m y re la t ionch~: , with i k . R e l l l y , W .

R e i l l y i s used t o t ak lng instructions f rov me but

I do not take i n s t r u c t i o n s from the Lord P?ayor."

The f a c t t h a t Kane had ceased t o be on s t r i k e was of

course bas ic t o the whole s i t u a t i o n , but t he re i s no h i n t

t h a t h i s r e f u s a l and f a i l u r e t o s t a y on s t r l k e was i n t h e mind

of e i t h e r man a s an aspec t of t h e s i t u a t i o n , whlch could

pro-;eke h o s t i l e nzt ion sgair is t :Cans, ii; r e l z t i o n t o h i s

employment. I t i s c l e a r t h a t t o t ake a c t i o n agains? Kane by

reason of t h a t circumstance was c e r t a i n l y not i n Roganfs mlnd

and he would have been most su rpr i sed i f the re had been any

suggestion t h a t it was i n R e i l l y ' s mind. On the genera l

probabilities of the mat ter Re i l l y knew f l a t it was the pol icy

of the defendant t h a t t he re should be no d i s c r i ~ i n a t l o n agalns-c

employees who were not un ion is t s . In add i t ion the re 1s a

bas ic improbabi l i ty t h a t a man i n R e l l l y t s pos i t i on 11ou1d

i n j u r e one of t h e defendant ' s employees i n h i s employment,

because he had no t joined i n i n d u s t r i a l ac t ion . It would have

been an un jus t and u n f a i r a c t . But of course t h e

p robab i l i t y t h a t a c t i on mlght be taken a g a m s t a non-s t r lker

a s a r e s u l t of var ious kinds of pressures frcm the str ike1.s

o r t h e i r union i s qu i t e a d i f f e r e n t matter. And a s

ind ica ted above,	i f t h a t was	t h e s i t u a t i o n no	crlme was
committed.

However, n o t i : l t l ~ s t a n d l n ~ t h e con-

c e s s i o n by Mr. Rogan , tha t technically R c i l l y was i n

c o n t r o l o f t h e situation i n Melbourne on t h e r e l e v a n t days ,

t h e p r o p e r i n f e r e n c e from t h e ev idence i s t h a t a s a m a t t e r

o f subs t ance , Rogan ,::as a t a 1 1 t i m e s c e r t a i n l y i n r e l a t i o n

t o t h e s t a n d l n g down o f Kane t h e dominant o f f i c e r o f t h e

C ~ u n c i l and r e s p c n s i b l e f o r t h e course t a k e n by R e l l l y i n

t h a t r e s p e c t . As Rogan s a i d : -

t t n ; ~ ,.-.. &-..- --.. I. 3.-e

,U ,"U ,,,,v.. L.,, " C L L L L z.7 t; X?. ! ? c i I l y ' s

a t t i t u d e towards I I r . Kanc remalnlng on pay and

employed i n t h ? o r d l n s r y way a s from 9 ivlarch i n

t h e c l rcu?st?nc '~s?---Yes. Plr. R e l i l y p u t ~ . t

t o me q u i t e p l a i n l y over t h e t e l ephone t h a t

because of t h e bans t h a t ,,:ere on t h e r e was no

u s e f u l work f c r M r . Kene t o cio.

h d from t h a t you drew a conc1us ion~-- - Yes, t h a t

i f i n f a c t he d l d n o t e c c e p t t h e conpromise then

he was t o t e s t s o d do:.n i n t h e s e n s e he was nsr.

t o be s acked , he was j u s t t o be n o t p a l d d u r l n g

t h e p e r l o d o f t h e s t r i k e .

You thought i f t h i n g s s t a y e d as t h e y were a f t e r h e

had-this c o n v e r s s t l c n w l t h you t h z t he would

p robab ly do that?---Yes, because he w a s answcraS!e

t o me when I c w e bzcic. The f a c t he was on t h e

ground he cou ld dlsre!;ard me t c ~ p o r a r l l y , he

cou ld n o t disregard me f o r l ong .

H i s views m d your s were !?ore o r l e s s i n l i n e were

t h e y not?---Yes."

From t h e f a c t t h a t R e l l l y was s o insistent

i n r e p o r t i n g and c o n s u l t i n g w i t h Rogan t h e r e i s

>

good r c s son of disregarding Roean o r h l s views a t 211.	f o r i n f e r r i n g i h a ~	R e l l l y had	no	though t
It i s more t h a n

p robab le t h a t R e l l l y would no t have a c t e d f o r r e a s o n s

o t h e r t h a n t h o s e discussed batween h ~ r n s c l f and Hogan

p a r t i c u l a r l y i n a m a t t e r of such d e l i c a c y . So f r equenz and

s o comprehensjve were R e i l l y ' s i n t e r s t a t e telephone c a l l s

t o Rogan, i n t e r r u p t i n g hlm i n t h e course of h i s Adelaide

business , t h a t h i s conduct was more l l k e t h a t of an anxious

jun ior repudia t ing t h e temporary t echn ica l a u t h o r i t y t h a t [night

have been h i s . The Lord Mayor,who was i n Adeleide or? j o l n ~ ;

business with Rogan,referred t o t h e "whole f l u r r y of

telephone c a l l s between Adelaide and MelbourneM.

O f course a s M r . Ormiston Q.C., s en io r counsel f o r the

informant ,said any statement by Re i l l y t o Rocan p r n ~ ~ ~ d from +he

testimony of Rogan i s but hearsay i n the sense t h a t it cannot be used a s establishing the t r u t h of what Re i l l y i s a l l eged t o have

s a id . But and what mat ters were t o draw an inference from t h e terms of the c o n v e r s a t i ~ ~

discussed t h e r e i n between Rogan and Re l l l y

and t o observe t h a t t h e conversat ions were f requent and

were i n t h e na ture of repor t ing , consult ing and c o n f ~ r r i n g ,

i s not s o t o t r e a t any statements of Re i l ly . The sub j ec t

mat ter of the conversat ions i s proved by d i r e c t

evidence. The f a c t t h a t it was Rogan who gave f l r m advice t o

Re i l l y on t h e c r i t i c a l matter i s proved and Rogan's opinion

of t h e l ike l ihood of Re i l l y depar t ing from h i s advice i s

proved. Having regard t o t h e l r long a s soc l a t i on Rogan

would be exper t on t h i s .

,

M r . R e i l l y l s s tatements a r e evidence f o r t h e

defendant i n two respec t s . )/hat was s a i d by M r . Re i l l y

s u b s t a n t i a l l y formed the bas l s of f a c t and opinion by

reference t o which Rogan made up h i s mlnd a s t o the course

which the defendant should adopt on the quer t lon o f t h e standing

down of Kane. Also i n the contcxt of t h e repor t ing and

. .

- - - - - ->-- - - -

t h e consu l ta t ivc procedure adopted by Re i l l y , the c l a s s and

na ture of the matters pu t before Rogan by R e i l l y provide

a b a s i s of f a c t from which an inference may be drawn a s t o

t h e mat ters considered by R e i l l y t o be r e l evan t t o t h a t

quest ion. The f a c t t h a t , a s Rogan sa id : -

" M r . Re i l l y pu t it t o me qu i t e p l a i n l y

over t h e telephone t h a t because of the

bans t h a t were on t h e r e was no u se fu l work

f o r M r . Kane t o do."

demonstrates t h a t t h a t f a c t o r was regarded a s re levan t . T h i s is

n o t t o accept a s t r u e what R e i l l y s a i d but from t h e f a c t t h a t

-,qol-da >;ei-e saii arises afi iiievita"ue iiir"i.i-eili5 "<li& iii

R e i l l y t s mind t h e circumstance so descr ibed, co r r ec t o r no t ,bas

p u t forward bona f i d e by him a s r e l evan t t o t h e problem which

had a r i s e n . I n t h e context of t h e comprehensive nature of t h e

mat ters pu t before M r . Rogan by M r . Re i l l y , the absence of

references t o Kane's r e f u s a l and f a i l u r e t o s t a y on strike a s a

poss ib ly re levan t considera t ion 2s such, is an ind i ca t i on

t h a t R e i l l y d id not consider it a re levan t matter t o pu t

before Rogan and thus not a re levanc mat ter i n h i s mind.

It i s manifest from t h e nature of t h e conversations

between Rogan and Re i l l y t h a t Re i l l y was p u t t i n g before

Rogan a l l r e levan t considerations f o r t h e purpose of

obta in ing e i t h e r d i r e c t i o n o r advlce from Rogan and t h a t

Rogan was expect ing him t o do so. Although Re i l l y had the

formal	au tho r i t y t o a c t on	h i s own	i n i t i a t i v e and f o r h i s
2

own reasons, I would i n f e r t h a t he did not i n ~ e n d t o do

so. Notwithstanding R e i l l y 7 s formal authority it i s unrea l

t o regard h i s mind a s the dccls ion-~al t ing mind i n what occurred.

The s w i f t r epor t ing of events t o Rogan a s they

occurred, t h e comprehensive na ture of t h e telephone

d i scuss ions , r e f l e c t e d R e i l l y t s s t a t u s a s jun ior t o

Rogan. They i n d i c a t e a l s o t h a t R e i l l y was seeking t h e

concurrence of Rogan i n t h e s t e p s t o be taken by him i n

t h e c r i s i s 2nd was r e l u c t e n t t o take s t eps o ther than wi th

t h a t concurrence. I-t was a l l i n l i n e with Rogants evidence,

t h a t when Rogan was absent R e i l l y assumes h i s r e s p o n s i b i l l t l c s

and a u t h o r i t y but " the working arrangement is t h a t he

endeavours t o do it t h e way he t h inks I would do it."

I n t h e t a s k of ascertaining t h e mind of t h e

defendant c o r p o r a t i o n , ~ ~ l t h r e spec t t o t h e s tanding down of Kantc,

t h a t mind may be l o c a ~ e d i n t h e mind of one author ised o f f l c e r

o r of more than one person exerc i s ing t h e executive power

of the corpora t ion. It i s a pure ques t ion of f a c t ohcre

i n p a r t i c u l a r circumstznces t h a t corporate mind may

be located . I n a case where two o f f i c e r s a r e concerned i n

t h e so lu t i on of an admin is t ra t ive problem and a re working

j o i n t l y t o solve it and decide ;:hat the corpora t ion i s

t o do and a r e working i n hzrmany and i n f u l l confidence, t h e one with t h e o ther , the mind of the corpora'i.xon i s t o be found i n the course of conduct agreed upon between

>

them and the reasons which i n thc ecd a r e the opera t lne reasons f o r the po l icy agreed upon. Ic such circumstances ~:.hcre it i s

c l e a r t h a t one of the o f f i c e r s i s junior t o the o the r , and

i s seeking the cc-operation acd advlce and poss ib ly t h e

d i r e c t i o n of t h e o the r , obviously f o r a shar ing of responsi-

b i l i t y , it js not probable t h a t t h e junior w i l l have s e c r e t

reasons not d isc losed o r a c t con t ra ry t o the advice o r

d i r e c t i o n of the sen ior . The improbabl l l ty i s increased

where the two men have ac ted f o r a long tlme i n recur r ing

s i t u a t i o n s , the jun ior a s a working r u l e always doing

what t h e s en io r would des i r e .

Accordingly i n t h i s case , I th ink the b e t t e r vlew

i s t h a t it was RoganTs mind which was t h e mind of the

d e f e n d a ~ t . Poss ib ly t h e mind of t h e corpora t ion has t o be

i n f e r r e d from Rogan and R e i l l y T s j o i n t mind. What i s i n l s sue

is n dccisiori of the coi-porat~wrr. A decis ion i s def lnea I n t n e

Shor ter Oxford E n ~ l l s h Dict ionsrv a s inc luding "the a c t i o n

of decidingu and, notwithstanding t h a t Rogan charac te r i sed h i s

p a r t i n t h e a f f a i r a s g iv ing advice, the corpora t ion i s e n t i t l e d

t o have the t o t a l t r ansac t i on looked a t ob j ec t l ve iy by t h e

Court. It i s t h e duty of the Court t o draw such in f c r e r ce s

a s a r e proper on the evidence a s t o :./h0 it was t h a t played

t h e decision-making p a r t i n t h e j o i n t admin is t ra t ive a c t l v l t i e s

culminating i n Re i l l y performing the a c t u a l a c t of s tanding

down. So doing I would a t t r i b u t e t h e dec l s ive f a c t o r i n the

mat ter t o have been Rogan's so c a l l e d advlce. A re levan t

s t a t e n e n t of p r inc ip l e i n t h i s connection i s t o be found i n

t h e judgment of Bray C.J. i n Brambles HolChtI~s Ltd. v. Carev

(1976) 12 S.A.S.R. 270 a t pp.275-276:-

" O f course, i f mental s t a t e s l l k e knowledge o r

b e l i e f a r e t o be a t t r l b u t c d t o a no t lonc l 2nd

metaphysical z n t i t y i l k ? a corpora i lon, t h l s can

only be done by a t t r lbut ln , ; ; t o lt the itnowledgc

o r be l l e f a c t u a l l y possessed by some one o r

more of i t s o f f l c c r s ... Vcry difficult questions

can a r i s e i r l t h l s connectlor. ... It i s enough t o

say t h a t , i n my n e w , it i s a f a l l a c y t o say

t h a t any s t a t c of mind t o be attributed t o

a corporation nus t always be a s t s t e of mlnd of one particular o f f l c e r alone ecd t n a t t h e corpora t ion can never know o r bel leve more then

t h a t one zan knows o r believes. This cannot

bc so when it i s a case of successive h ~ l a e r s

of t h e o f f i c e i n ques t ion o r of the holder of

t h e o f f l c e and h l s deputy o r substitute	durlng
h i s absence."

Cf . t h e i u t h n ~ i t i e ~ ~ ~ i z c ~ s s e r l i -n - P.11~? x r - Tol.ms~nd (1977)

31 F.L.R. 431 a t pp. 446-448 and 484-488.

It was argued by M r . Ormiston t h a t whether o r not

Rogan o r Re i l l y a c t u a l l y gave z t t e n t i o n t o t h e f a c t that Kane

had refused o r f a l l e d t o jo ln i n i n d u s t r i a l a c t i o n , i n

determining the ques t ion whether Rogan or R e i l l y dlsrlllssed o r

i n ju red Kane i n h i s employnent by reason of the c i r c m s t a ~ c e

t h a t he had refused o r f a i l e d t o j o i n i n industrial a c t i o n , lt

was a dec i s ive f a c t o r t h a t a t the time such a c t i o n s were takcn

Kane had become aperson characterised a s a s t r ike-breaker .	I t
was argued t h a t it followed t h a t t h e dismsscal and standing down of Kane were ac t i ons taken aga ins t Kane a s a person co

charac te r i sed and accordingly were t o be seen a s having

been t i k e n by reason of t h a t f e a t u r e of the s i t uo t lon .

A s I understood t h i s argument t h e s u b s t ~ n c e of it was t h a t

t h e co r r ec t approach is t o i s o l a t e the c h a r a c t e r i s t i c of t h e

employee which d i f f e r e n t i a t e s him from the o the r employees,

who	have not been stood-down o r i n ju red i n t h e i r employnent.
The	subxisslon continued t h a t i f t h a t approach uerc adopted

it would be manlfest t h a t the employer had taken a c t i o n by

reason of t h a t c h a r a c t e r l s t i c . It was s a i d that t h e exclus ive

c h a r a c t e r i s t i c of Kane was h i s f a i l u r e t o j o in i n l n d u s t r l a l

ac t ion . Therefore it was concluded t h a t t h a t must have been

t h e circumstance by which the employer ac ted . But when one

s tands down o r i n j u r e s an employee,who hzs a p a r t i c u l a r

c h a r a c t e r i s t i c , it cannot necessarily be concluded t h a t it was

t h a t c h a r a c t e r i s t i c which %as tine s u b s t a n t i a l b a s i s of the

a c t i o n taken aga ins t him. The whole situation must be

considered and the ques t ion i s whether t h e person who had the

characteristic was dismissed because the enploycr vras influenced

by t h e f a c t t h a t he had such a c h a r a c t e r l s t i c , o r by one o r more

of the many o ther f a c t o r s which wer? re levan t t o t h e ques t lon

whether f o r lns tance he should be s tood down o r dismissed.

This argument does no t r e f l e c t the elements of the

crime a s deflned i n s . 5 ( l ) ( a a ) of the Act. The s ec t i on does no t make it an offence t o dismiss an employee who has broken

o r attempted t o break a s t r i k e , o r de f ied h i s fe l low employees,

.

o r a union decls ion t o engage i n a s t r i k s o r o ther industrial

ac t ion . An offence i s only corn.niti.ea :vl~en the s t a t e of mlnd

of the employer, i s such t h a t the f a c t t h a t t h s employee has

refused o r f a l l e d t o jo in i n t h e s t r l k e was i t s e l f a s u b s t a n t i a l

and opera t ive reason f o r dismissing o r otherwise injuring the

employee. It would be appa ren t tha t i n t h e case of an ~mployer

whose s t a t e of mind was t h a t the f a c t t h a t the employee had

r e s i s t e d t h e s t r l k e dlsposed him r a t h e r t o advantage t h e

employee i n h i s employment, bu t who never the less , i n his own

i n t e r e s t s , was influenced by o r indeed forced t o dismiss

h i m by circumstances c rea ted by o the r persons he would not

a c t by reason of t h e c i rcunstance t h a t the employee was

a s t r ike-breaker . S imi iar iy iio offc::c-. 1s cnrnrni t t e d b y any

employer where t h a t l a t t e r circumstance i s not a s u b s t a n t i a l

and opera t ive f a c t o r inf luencing him -CO dismiss t h e employee.

I n t h e r e s u l t I am s a t i s f i e d t h a t Rogan had no tnou;;kt

of "advlsing1I t h a t .Kane should be stood-down by reason

of t h e circumstance t h a t he d i d not continue t o s t r i k e and I

am s a t i s f i e d t h a t Re i l l y a l s o had no such thought. For t k s e

reasons I am s a t i s f i e d t h a t t h e mind of t h e corpora t ion whlch

decided t o s tand do:.,% h n e on 8 Msrch 1978 was one i n trhlch t i c

circumstance, t h a t Kane had refused o r f a i l e d t o j o in i n

i n d u s t r i a l a c t i o n , was not "a substantial and opera t ive f a c t o r "

and i n my b e l i e f it was no t a f a c t o r a t a l l .

Accordingly I would dismiss a l l t h r e e informations.

. --. - . .