Re Desmond Lawrence Linehan v Northwest Exports Limited [1981] FCA 199; (1981) 57 FLR; 49 (9 December 1981)

FEDERAL COURT OF AUSTRALIA

Re: DESMOND LAWRENCE LINEHAN
And: NORTHWEST EXPORTS LIMITED [1981] FCA 199; (1981) 57 FLR 49
Nos. 14,15,16 of 1980
Industrial Law - Conciliation and Arbitration
1 IR 125

COURT

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
INDUSTRIAL DIVISION
Ellicott J.(1)

CATCHWORDS

Industrial Law - Dismissal of employee holding certificate exempting membership of union on grounds of conscientious objection - refusal by union members to work with employee - strike threatened unless employee joined union or dismissed - nature of contract of employment - whether employed by the week or as permanent regular daily employee - Federal Meat Industry Interim Award, 1965 - employment "terminated" - whether employee dismissed, threatened dismissal or position altered to his prejudice by reason of not member of union - onus of proof - reason actuating termination and alteration of position - subjective test - non membership of union a substantial and operative factor.

Conciliation and Arbitration Act. 1904 s.144A.

Conciliation and Arbitration - Termination of employment of employee holding certificate exempting from union membership - Whether employed by week or as daily employee - Whether employee dismissed or dismissal threatened - Whether employment terminated - Position of employee altered to his prejudice - Whether non-membership of union substantial and operative factor therefor - Conciliation and Arbitration Act 1904 (Cth), s. 144A. The informant instituted three prosecutions pursuant to s. 144a of the Conciliation and Arbitration Act 1904 alleging that the defendant had dismissed an employee, threatened to dismiss him and altered his position to his prejudice by reason of the circumstance that, being a person in respect of whom there was a certificate in force under s. 144A (1) of the Act, he was not a member of a registered organization. That provision authorizes the issue of certificates by the Industrial Registrar stating that a person's conscientious beliefs do not allow him to be a member of a union On 21st December, 1979, the defendant terminated the employment of the employee as from the end of that working day. The defendant was a respondent to the Federal Meat Industry Interim Award 1965 (the award) which provided for both weekly employment and regular daily employment, in which case the employment terminated at the end of each day or shift.

Held: (1) It had not been proved beyond reasonable doubt that the employee had been dismissed or that there had been a threat to dismiss him within s. 144A (1) and therefore the first two informations should be dismissed because - (a) the evidence was more consistent with the employee being a regular daily employee although he was entitled to certain benefits including the expectation of work each day if he turned up and it was available; (b) when the defendant terminated the employment of the employee it was doing no more than saying he would not be re-employed in the future; (c) dismissal in s. 144A (1) of the Act means terminating an existing employment, not refusing to re-employ a person.

(2) (a) It had been proved that the defendant had altered the employee's position to his prejudice. (b) As it had not been proved by the defendant on the balance of probabilities that a substantial and operative factor in so doing was not that the employee, being a person in respect of whom there was in force a certificate under s. 144A (1), was not a member of the organization, the third information was established.

Wood v. City of Melbourne [1979] FCA 22; (1979), 41 FLR 1, distinguished.

Mikasa (N.S.W.) Pty. Ltd. v. Festival Stores Ltd. [1972] HCA 69; (1972), 127 CLR 617; Cuevas v. Freeman Motors Ltd. (1975), 25 FLR 67, referred to.

HEARING

Sydney, 1981, September 14-15; November 9; December 9. 9:12:1981
INFORMATION.

The informant laid three informations against the defendant under s. 144A (1) of the Conciliation and Arbitration Act 1904.

M. E. J. Black Q.C. and G. Moore, for the informant.

A. A. McDevitt, for the respondent.

Cur. adv. vult.

Solicitor for the informant: B. J. O'Donovan, Commonwealth Crown Solicitor.

Solicitors for the defendant: Michie Shehadie & Co.
T. J. GINNANE

ORDER

Orders accordingly.

DECISION

Desmond Lawrence Linehan (the informant) on behalf of the Industrial Relations Bureau, has instituted three prosecutions pursuant to s.144A of the Conciliation and Arbitration Act 1904 (the Act) against Northwest Exports Pty. Limited, (the defendant) in which the informant alleges that the defendant on 21 December 1979 dismissed its employee Michael Mark Foley, threatened to dismiss him and altered Foley's position to his prejudice by reason of the circumstance that he, being a person in respect of whom there was a certificate in force under s.144A (1) of the Act, was not a member of an organization registered pursuant to the Act.

Section 144A (so far as relevant to these proceedings) provides as follows:-

"144A. (1) Where a person, upon application made to the Registrar in the prescribed form and manner, and payment of the prescribed fee, satisfies the Registrar that the person's conscientious beliefs do not allow the person to be a member of any association of a kind described in a paragraph of sub-section (1) of section 132, the Registrar shall issue to the person a certificate to that effect.

(2) In sub-section (1) -

"conscientious beliefs" means any conscientious beliefs, whether the grounds for the beliefs are or are not of a religious character and whether the beliefs are or are not part of the doctrine of any religion;

"prescribed fee" in relation to an applicant under sub-section (1), means a fee equal to the annual subscription payable by the members of the organization that, in the opinion of the Registrar, is the organization that would, but for the person's conscientious beliefs, have been the appropriate organization for the person to join having regard to his past employment (if any) and his future prospects of employment.
. . . . . . . .
(4) A certificate under sub-section (1) remains in force for such period, not exceeding 12 months, as is specified in the certificate but may be renewed from time to time by the Registrar for such period, not exceeding 12 months, as the Registrar thinks fit.

(5) An employer -

(a) shall not dismiss an employee, or injure him in his employment, or alter his position to his prejudice, by reason of the circumstance that the employee, being a person in respect of whom there is in force a certificate under sub-section (1), is not a member of an organization;

(b) shall not threaten to dismiss an employee, being a person in respect of whom there is in force a certificate under sub-section (1), or to injure such an employee in his employment or to alter the position of such an employee to his prejudice, with intent to coerce the employee to join an organization; or

(c) shall not refuse to employ a person in employment by reason of the circumstance that the person, being a person in respect of whom there is in force a certificate under sub-section (1), is not a member of an organization.

(6) An organization -

(a) shall not advise, encourage or incite an employer to take action in relation to a person that would, if taken, be a contravention of sub-section (5);

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

(c) shall not take, or threaten to take, any action having the effect, directly or indirection, of prejudicing a person in his employment, being a person in respect of whom there is in force a certificate under sub-section (1), with the intent to coerce the person to join the organization.

(7) A contravention of sub-section (5) or (6) is an offence against that sub-section, punishable, upon conviction by -

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

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

(8) In any proceedings for an offence against sub-section (5) or (6), if all the relevant facts and circumstances, other than the reason or intent of an action alleged in the charge, are proved, it lies upon the person charged to prove that that action was not actuated by that reason or taken with that intent."

As a result of sub-s. (8) the onus is on the informant to prove beyond reasonable doubt all the elements constituting the offence other than the reason for the defendant's action. It is for the defendant to prove, on the balance of probabilities, that it did not dismiss, threaten to dismiss Mr Foley or alter his position to his prejudice for the reason alleged. (cf. s.5(4) of the Act and see generally Atkins v. Kirkstill-Repco (1975) 3 FLR 439; Roberts v. General Motors Holden Employees Canteen Society (1976) 25 F.L.R. 415; Heidt v. Krysler Australia (1976) 13 A.L.R. 365; Jones v. Theiss Bros (1977) 15 A.L.R. 501; David John Lewis v. Qantas Airways Limited, Morling J. Federal Court of Australia, 22 September 1981 - unreported).

The defendant is the present operator of the Inverell Meatworks. The meatworks is the largest employer of labour in the area. The defendant at material times was a member of the Meat and Allied Trades Federation of Australia, an organization of employers registered under the Act. That organization, and thereby the defendant, was at such times a respondent to the Federal Meat Industry Interim Award 1965 (the award), a copy of which is in evidence.

In about June 1977, Mr Foley, then aged 19, went to the meatworks seeking employment. After waiting in the vicinity of the administration office, as was the practice for people seeking employment, he was engaged by Mr Sykes, the leading foreman at the works.

Initially, he worked in the tripe room being paid cash on a daily basis for the first few days. After a number of weeks he was transferred to the boning room where, each Friday, the foreman in charge went around with pay slips for the permanent employees. Shortly after being transferred to the boning room he was given one such slip. This went on for a number of weeks indicating, he thought, that he was a permanent employee.

However, in August 1977 Mr Foley was told by Mr Johnson, the foreman supervising the boning room, that he would be working on a casual basis and that it would be necessary to sign a sheet each morning before work. The sheet contained a section that required the employee to indicate if he was a financial member of the Australian Meat Industry Employees Union (AMIEU) and if the employee was not such a member $2.00 was deducted from the employee's pay. Mr Foley agreed to this course of action at that time. Mr Foley testified that he had not up to the time of giving evidence been a member of such an organisation, except for this occasion. He had also joined the University of Sydney Union.

In September 1977 Mr Hutton, the manager of the meatworks, called a number of employees, including Mr Foley, into his office, and told them they would thereafter be employed as permanent employees.

On 31 March 1978, Mr Foley, because of his conscientious beliefs, applied for and was issued with a certificate under s.144A(1) of the Act. Such certificates remain in force for such period not exceeding 12 months as the Registrar specifies. The fee paid in relation to the certificate was $40, the amount that would have to have been paid to the union had Mr Foley been a member. Mr Foley showed the certificate to Mr Hutton in April of that year, who in turn showed it to a representative of the union. Mr Foley thereafter continued to work as he had done in the past.

In September 1978, he had a discussion with Mr Emerson, the AMIEU representative, concerning the payment of $20 to the union's mortality fund, at which time Mr Foley explained that he had problems in his own mind about such payments.

In March 1979 Mr Foley was again approached by the union delegate as to payments to the mortality fund. Mr Foley again declined to make any payment because of his conscientious religious beliefs.

On 30 March 1979 Mr Foley applied for and was granted another certificate under s.144A(1). It was in force on the date of his alleged dismissal - 21 December 1979.

In August 1979 men were laid off at the works. Mr Foley gave evidence that it was his understanding that when employees were laid off it was, to use the terms of the trade, a last-on first-off basis. However, Mr Sykes said that no seniority agreement existed and that in fact an employee's ability and service were considered when laying-off. When Mr Foley was laid-off he received a sum for holiday pay and sick pay which had accrued to him. He was off work for some three weeks when he received a message indirectly from Mr Sykes asking that he return to work.

On doing so, Mr Beckhouse, the foreman then in charge of the boning room, told him to get a certain machine and to start working. Thereafter, until December 1979, Mr Foley turned up for work each morning and started work and was paid every Friday by the pay clerk. In September or October 1979, Mr Foley enquired of Mr Beckhouse if he was employed as a casual or permanent employee. Mr Beckhouse told him he was still employed as a permanent.

During the two periods Mr Foley was employed, he was issued with protective clothing consisting of three white coats and three white caps. It was expected by the defendant that the clothing be kept clean and maintained by the employee receiving it. It was the practice when an employee was terminated for him to hand in his clothing. Casual employees handed in their clothes every afternoon after they finished work but permanent or regular employees did not do so until their employment was terminated.

On 21 December 1979 at about 11:00 a.m. Mr Foley went in response to a direction to Mr Sykes' office. Mr Foley in his evidence gave the following version of his conversation with Mr Sykes:-

"He asked me what he was going to do with my situation. He said that the company had an award with the union that they would give preference to union labour and as I did not have a union ticket, he could not put me on before the queue of people who were waiting, many of whom had union tickets. I said to him that Mr Emerson had indicated to me that I could pay the money into the mortality fund and he said that no longer applied, that I would have to have a union ticket. At one stage I said to him, 'I guess I have got three weeks to think about it' because the work usually shuts up that afternoon for a period of three weeks, and he said, 'No, we want your decision this afternoon'. At one stage he asked me why I would not join the union to which I told him I had religious grounds for not wishing to join. He said that the unions had come a long way at the works. He said if there were not any unions he could give me the work of four to five men to do and basically that the union made conditions there much better for workers."

He was then asked:-

"Did he say anything about what he expected or wanted you to do in relation to the union?---Yes, he wanted me to give them money to get a union ticket.

Did he say what would happen to you if you did not?---Yes, he said that I would be dismissed.
. . . . . . . . .
In the end did you tell him that you could not join the union?---That is correct.

What did he say to you?---He said, "I will have to finish you up this afternoon".

Did he tell you or give you any instructions?---Yes, he said to go along to the pay clerk and hand my gear in."

Mr Sykes also gave evidence of this conversation. He says that shortly prior to talking to Mr Foley he was approached by the Union delegate, Mr Emerson, and his co-delegate, Mr Schroeder, who asked him if he had spoken to Mr Foley about his paying all his dues. They indicated to him that if something was not done soon the rest of the members would stop work. Of his conversation with Mr Foley he says he related all the terms of the contract of his employment to him. He explained to him that the union had indicated that unless he paid his dues they would stop work.

He then gave the following answers to questions:-

"What did he say?---Oh, word for word ---

Can you remember?---Mostly it was his objections to buying a union ticket or paying union dues on religious grounds, this type of thing.

Did you reply to that?---No. As I said my main concern was to keep the plant operating. I explained to Michael that there was every indication if he did not pay his dues or I did not give the union delegates an answer within a reasonable time they would probably stop work on me.

Did he reply to that?---That he was not going to pay his union dues.

So, what did you do?---I explained to him that I had no alternative under the circumstances, I looked like having a stoppage, I would have to pay him off."

He was also asked:-

"When Mr Emerson told you that a stoppage was likely, did you believe Mr Emerson?---Yes, I did

Will you tell his Honour your reasons for discharging Mr Foley?---To avoid an industrial stoppage."

Mr Sykes says there were probably a couple of hundred carcases left to bone and he would have been left with them if they had stopped work. They would have had to freeze and subsequently thaw them. The company would also have been unable to shut the plant down as they normally did at Christmas time and carry out maintenance.

In cross-examination he said he could not remember the exact words he used. He would not agree that he told him if he did not join the union he would have to be finished up. He said he indicated to him that he had no option but to terminate him because he would have an industrial dispute on his hands if he did not. He was then asked:-

"You knew if he did not pay his dues you would have to sack him to keep the work going?---I was in that position.

That was what you conveyed to Mr Foley, the substance of it?---Yes."

As indicated earlier, Mr Foley, at the conclusion of this conversation was told to go to the pay clerk and hand in his gear. He was not given a week's notice nor a week's pay in lieu of notice. He did not claim a week's notice nor did he object because he did not get it. As it turned out, although he tried, he was unable to return his gear at the end of that day because the storeman had left and the pay clerk refused to pay him without a form signed by the storeman. He returned at a later time to finalise these matters.

There was no industrial stoppage and the meatworks shut down peacefully for Christmas.

After the Christmas break Mr Foley telephoned Mr Hutton, the works manager, on two occasions. The first time Mr Hutton advised him to see Mr Emerson about the exemption certificate. However, Mr Emerson maintained his previous position on the issue. That is to say the union would no longer accept payment to the mortality fund or Industrial Registrar under the exemption certificate in lieu of paying membership fees. He said he would have to have a union ticket, otherwise the other union members engaged at the works would refuse to work with him. Mr Foley then called Mr Hutton a second time. Mr Hutton maintained that it was a small amount of money involved and that he should pay, but Mr Foley said that it was a matter of principle. Mr Foley pointed out that he had a certificate. Mr Hutton then became agitated and said words to the effect that he (Foley) could take him to court. Mr Foley's version was not denied by Mr Hutton.

This was the last contact he had with the meatworks. They re-opened after Christmas. He did not apply for re-employment but, in view of what had happened, I am quite satisfied there was no point in his doing so.

At the close of the evidence for the informant, counsel for the defendant submitted that there was no case to answer on two of the charges. He contended there was no evidence of dismissal or of a threat to dismiss and that therefore the requisite elements had not been proved beyond reasonable doubt. I was satisfied that there was a case to answer and the hearing proceeded.

The Nature of the Contract of Employment.

It is clear that Mr Foley was employed by the defendant. What is critical is the nature of his contract of employment. This depends in part on whether the award, and, if so, which part, applied to him.

The informant contended that he was employed by the week under Part I, cl. 6 of the award. The defendant, on the other hand contended that Mr Foley was employed as a regular daily employee under Part III cl. 2.

Under the latter provisions, a regular daily employee is employed by the day or shift and his employment therefore terminates at the end of each day or shift. If the defendant is right in its contention it would follow that because Mr Foley's employment was terminated at the end of ordinary working hours on 21 December 1979, he was not dismissed nor could the defendant have threatened to dismiss him. For this reason the defendant claimed that it should be aquitted on two of the charges.

If the informant were right, it would be open for me to find that Mr Foley had been dismissed or that there had been a threat to dismiss him.

Part I, cl. 6 of the award provides that except as thereinafter provided employment shall be by the week unless the employee is specifically engaged as a casual employee and except as otherwise provided an employee to become entitled to payment on a weekly basis is to perform such work as the employer requires on the days and during the hours usually worked by the class of employee affected.

Clause 6(b) deals with termination and in part provides:-

"(b) employment, other than casual shall be terminated only by a week's notice on either side, and such notice may be given at any time during the week, but if given at any time within the employee's rostered working hours shall apply from the rostered finishing time for the day, except where payment is made in lieu of notice, in which case time is calculated from the time of the notice. . . "

Part III is headed - "PIECE-WORK AND TALLY SYSTEMS IN ABATTOIRS AND BONING ROOMS AND/OR PRE-PACKING AREAS, ROOMS OR FACTORIES". Clause 1(a) thereof provides that Part III is to apply in respect of all employees employed in establishments being abattoirs and boning rooms and/or pre-packing areas, rooms or factories in which any employees are working under any tally, or piece-work system i.e. other than under a time-work contract.

It further provides that each employer shall elect whether to commence operating on a tally or piece-work basis.

Clause 2 of Part III deals with the contract of employment and paragraphs (a) to (f) provide as follows:-

"(a) Employees engaged in an abattoir or boning room and/or pre-packing area, room or factory under this part, except for those specifically engaged as casuals, shall be engaged as regular daily employees.

(b) A regular daily employee shall be employed by the day or shift; and without prejudice to the provisions of this award as to payment for award holidays, sick leave and annual leave, his employment shall terminate at the end of each day or shift on which he is employed.

(c) Notwithstanding the termination of his employment at the end of each day or shift, the engagement of a regular daily employee shall continue and he shall remain a regular daily employee until his engagement as such is terminated as herein prescribed. Such engagement may be terminated by notice on either side as from the end of the ordinary working hours on the day on which it is given, whether the employee is employed on that day or not, or at any later time specified by the notice. An employee who terminates his engagement as from a time prior to the end of the ordinary working hours on any day or shift without having given the prescribed notice shall not be entitled to payment in respect of any time actually worked on that day or shift. Such engagement shall be deemed to be terminated if the employment of the employee is summarily terminated in accordance with sub-clause (j) of this clause.

(d) In consideration of the rights conferred on regular daily employees by this part of this award, a regular daily employee shall attend and offer himself for employment at a place specified by the employer at the normal starting time on each ordinary working day unless notified that on a particular day he is not required to attend, and, if notified to attend, at such other times as employees may be required to work pursuant to clause 18 of Part I of this award.

(e) A regular daily employee shall be paid at the rate of one-fifth of the ordinary rate per week prescribed by this part of this award for the classification in which he is employed plus 10 per cent thereof for each day or shift actually worked.

(f) A casual employee shall be employed by the day or shift, and his employment shall terminate at the end of each day or shift. A casual employee who terminates his employment as from a time prior to the end of the ordinary working hours on any day or shift shall not be entitled to payment in respect of any time actually worked on that day or shift."

There was no evidence tendered that the defendant had elected to operate on a tally or piece-work basis. Witnesses such as Mr Hutton were called but gave no evidence either in chief or in cross-examination about the matter. As indicated earlier, the onus is on the informant to prove dismissal and therefore, to the extent to which it is relevant to that question, the contract of employment.

In the circumstances I am left to decide whether the informant has discharged that onus in the absence of any positive evidence that the defendant had elected to apply Part III to its boning room.

As stated earlier, the informant claimed that Mr Foley was employed on a weekly basis. It was submitted on his behalf that Mr Foley's employment could be gauged by a number of criteria - he was not specifically employed as a casual, he was employed on a similar basis to others in the boning room, he was paid by the week, he had regular employment, he was issued with company clothing and if he had not been terminated, he would have gone on leave over Christmas and started work with the others when the works re-opened after the Christmas break. It was submitted that these circumstances gave rise to a common law type contract of indefinite duration determinable by a week's notice and that it did not matter that this meant he enjoyed greater rights than even cl. 6 of pt. I conferred. (Compare R. v. Bowen Ex parte The Amalgamated Workers and Shipwrights Union [1980] HCA 42; (1980) 32 A.L.R. 343. per Murphy J. at p. 353).

The defendant, on the other hand, submitted that the circumstances clearly indicated that he was employed under Pt. III, cl. 2 of the award and that in any event the informant had not discharged the onus of proof beyond a reasonable doubt that he was employed under cl. 6 of Pt. I or under a common law contract.

Although the question as to the nature of a person's employment in a particular set of circumstances may involve questions of law, the question whether those circumstances exist is, itself, a question of fact.

Here, the evidence shows that Mr Foley in the relevant period, worked in the boning room which operated every day when work was available. He worked when work was available. If not he went home. In August 1979 he was dismissed with a large number of other employees because of a downturn in available work. After three weeks he was re-engaged. However, at the time his employment was terminated he was paid for annual leave and sick leave. The group certificates relating to this are in evidence. He was told in September 1979 that he was still employed as a "permanent" employee. On the day he left, Mr Sykes terminated his employment from the end of that working day without objection from Mr Foley.

This evidence, in my opinion, establishes circumstances which are more consistent with Mr Foley being employed as a regular daily employee under Pt. III of the award. Had he been employed under Pt. I cl. 6 or under a common law type contract of the nature contended for by the informant, one would have expected him to be employed on other work when work in the boning room was not available. He would also have been given a week's notice when his employment was terminated in August. On the day in question there seems to have been no suggestion that he would be entitled to a week's notice.

Even if the evidence was not sufficient to prove affirmatively that he was employed under Pt. III, I am satisfied that it is consistent with such employment. On the other hand, I am not satisfied that the informant has proved beyond reasonable doubt that Mr Foley was employed under a common law type contract which entitled him to a week's notice.

One aspect of cl. 2 of Pt. III of the award which raises a question as to the nature of his employment is para. (c) of cl. 2. It provides that notwithstanding the termination of his employment at the end of each day or shift, the engagement of a regular daily employee shall continue and he shall remain a regular daily employee until his engagement as such is terminated as therein prescribed. The engagement may be terminated by notice on either side as from the end of the ordinary working hours on the day on which it is given whether the employee is employed on that day or not.

The status of a regular daily employee under cl. 2 of Pt. III confers on the employee certain obligations (see para. (d)) but also certain benefits, e.g. rights to payment for award holidays, sick leave and annual leave and, in effect, a 10 percent loading on the ordinary rate. The use of the phrase "engagement of a regular daily employee" does suggest some degree of permanence. However, in my opinion, on the true construction of the word, it does not alter the nature of the employment so far as termination of it is concerned. What it does do is confer on the employee a status which confers benefits including the expectation of, if not the right, to work if he presents himself each day and it is available. A casual employee employed under Part III is clearly not in so strong a position.

The circumstance, if it be so, that Mr Foley was engaged as a regular daily employee under. cl 2 of Pt. III of the award is of significance in that on 21 December he appears clearly to have lost any such status and thereafter no likelihood that after the Christmas break he would be re-employed as such with the benefits it conferred on him. I have indicated that the evidence before me is more consistent with his being engaged under Part III than under a common law contract. The evidence before me may not be sufficient to establish beyond reasonable doubt that he was so engaged. However, I am satisfied beyond reasonable doubt that his engagement was on the basis that his employment terminated at the end of ordinary working hours on each day and that he had achieved such a degree of permanence in his employment by the defendant that if he turned up on a particular day for work, and work was available it was likely that he would be employed. I am also satisfied beyond reasonable doubt from the evidence that he was entitled to sick leave and annual leave payments. He at least had the status of a "permanent" as compared with a "casual" employee.

Did the Defendant Dismiss Mr Foley or threaten to Dismiss Him?

He was employed by the day and as a result, I am not satisfied beyond reasonable doubt that the defendant dismissed or threatened to dismiss Mr Foley. For reasons I have given, in my view, his employment terminated at the end of ordinary working hours on each day and when Mr Sykes "terminated" his employment or threatened to "terminate" it on 21 December 1979 he was really doing no more than saying he would not be re-employed in future. He was terminating his "permanent" status. In terms of Part III (if it applied) he was terminating his engagement as a regular daily employee. This means that his employment finished in the ordinary course on 21 December 1979. He therefore neither dismissed nor threatened to dismiss him. In my view dismissal means terminating an existing employment, not refusing to re-employ a person.

Did the Defendant Alter Mr Foley's Position to his Prejudice?

For the reasons I have already discussed, I am satisfied beyond reasonable doubt that he was engaged with the status of a regular or permanent employee who, although his employment terminated at the end of ordinary working hours on each day, was entitled to certain benefits including the expectation of work each day if, pursuant to his obligation to do so, he turned up and it was available. He was also entitled to annual leave and sick leave payments. When his employment ended on 21 December 1979, and the company refused to treat him thereafter as having regular or permanent status he lost this status and the expectations and benefits that went with it. By doing so, the defendant altered Mr Foley's position to his prejudice.

Did the defendant alter Mr Foley's position to his prejudice by reason of the circumstance that Mr Foley, being a person in respect of whom there was in force a certificate under section 144A(1), was not a member of an organization?

It is not disputed that on 21 December 1979 Mr Foley was a person in respect of whom there was in force a certificate under s.144A(1) of the Act.

As indicated earlier, under the Act, the onus is on the defendant to establish, on the balance of probabilities, that it did not alter Mr Foley's position by reason of the circumstance that he was not a member of an organization.

In accordance with principles now well established this means that the defendant must show that this was not a substantial or operative reason when, as I have held, it altered his position to his prejudice. (See Mikasa New South Wales Pty. Limited v. Festival Stores [1972] HCA 69; (1972) 127 C.L.R. 617; Cuevas v. Freeman Motors Limited 8 A.L.R. 321; Wood v. Melbourne City Council (1979) 26 A.L.R. 430).

The question therefore is whether the circumstance that he was not a member of a union was or was not on the balance of probabilities, a substantial or operative reason for the defendant's action in terminating Mr Foley's engagement.

The defendant says that it terminated him because it wanted to avert a strike and not because he would not join the union. It claimed that it was a matter for him to decide whether he joined the union and that it was not trying to force him to do so. What motivated it or caused its termination of his status, it claims, was its desire to avoid an industrial stoppage.

It is clear that in December 1979 union delegates informed the company that unless Mr Foley joined the union, the men would not work with him, that is, they would go on strike. The defendant was approaching the Christmas shut-down and it would have been very inconvenient for it if the meatworks had stopped work.

The purpose of Mr Sykes' seeing Mr Foley was to persuade him to join the union but if he didn't to "terminate" his employment. Mr Sykes had clearly made up his mind, prompted by the union delegates, that if Mr Foley was not prepared to join the union his future employment by the defendant would have to be terminated as from that day. The reason Mr Sykes alleges he was doing this was because he wanted to avert an industrial stoppage.

However, the fact is that when Mr Foley indicated that he was sticking to his previous position as a conscientious objector and would not join the union - the option of paying to the mortality fund no longer being available - Mr Sykes terminated his employment. Mr Sykes was the acting works manager and he was the person, following a conversation with Mr Hutton, who was given the task of dealing with the problem which had arisen with Mr Foley in December 1979. It is therefore his mind and the reasons which actuated him which are of direct relevance.

In the circumstances outlined it is difficult, if not impossible, in my view, to avoid the conclusion that a substantial reason why Mr Foley's employment was terminated was his refusal to join the union. Had he joined his position would not have been prejudiced. When he persisted in refusing to join it, it was the fact of his refusal that led immediately to the termination of his employment with the defendant.

The defendant's object in persuading him to join the union or in terminating his employment when he would not, may well have been to avoid an industrial stoppage. But the cause of the prejudice he suffered at the defendant's hands was the fact that he refused to become and was therefore not at that time a member of the union.

The test in determining whether the action was actuated by the reason that the employee not being a member of an organization is subjective in the sense that the court must consider what was in the mind of the defendant. In other words, what actuated it in acting as it did. In this case the factor in Mr Sykes' mind which actuated him to terminate Foley's employment was Foley's refusal to join the union. His object may well have been to avoid an industrial stoppage, but I do not think the defendant, because this was its object and in a sense a reason for it acting as it did, can thereby avoid the consequence that, in the circumstances in which it found itself facing industrial problems, Foley's non-membership of the union was at least a substantial reason why it acted as it did through Mr Sykes.

In these circumstances I am of the opinion that the defendant in altering Mr Foley's position to his prejudice, as I have found it did, was actuated by the reason that he was not a member of a union. In other words the defendant has not discharged the onus of showing, on the balance of probabilities, that in so acting it was not actuated by that reason.

Counsel for the defendant relied strongly on the decision of Smithers J. in Wood v. Melbourne City Council (supra) to support its contention that it had acted as it did to avert an industrial stoppage and not because he was not a member of the union. In my opinion Wood's Case does not assist the defendant. There his Honour held that the failure of the employee to stay on strike was not an operative factor in the mind of the council's representative (ibid at p.438). I am quite satisfied, however, that here, Foley's non-membership of the union was an operative factor in Mr Sykes' mind.

It follows that in my view, the defendant was guilty of a breach of s.144A(5)(a) of the Act by altering its employee's position to his prejudice by reason that the employee (Mr Foley) was not a member of an organization.

I have not found it necessary for the purpose of reaching a decision in this matter to make a choice between the evidence of Mr Foley and Mr Sykes. Whichever version is adopted I think the view of the evidence I have adopted follows. Had I found it necessary to make such a choice I would have regarded Mr Foley as the more reliable witness. This does not mean that I do not regard Mr Sykes as a witness of truth. It means that I regard Mr Foley's recollection of events as more reliable than Mr Sykes.

Conclusion:

In the light of the above findings, I would dismiss the informations in matters Nos. 14 and 15 of 1980 and I would find the defendant guilty of the offence charged in the information in matter No. 16 of 1980.

It was agreed at the hearing that in the event of my finding the defendant guilty of any of the offences charged, I would not impose a penalty until counsel had an opportunity to address me on this question. The matters will therefore be stood over for the purpose of addresses on penalty. I will defer making any orders until those addresses have been heard.