Re Australasian Meat Industry Employees Union v Victoria Valley Beef Pty Limited [1987] FCA 3; 16 IR 259 (14 January 1987)

FEDERAL COURT OF AUSTRALIA

Re: THE AUSTRALASIAN MEAT INDUSTRY EMPLOYEES UNION
And: VICTORIA VALLEY BEEF PTY LIMITED
No. I10 of 1986
Industrial Law
16 IR 259

COURT

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DIESTRICT REGISTRY
INDUSTRIAL DIVISION
Evatt J.

CATCHWORDS

Industrial Law - breach of Award - Provision for inspection of time and wages record - Authorisation in writing by General Secretary to Union official - Reasonable notice of demand - Whether demand may be a general demand for all employees or a specific demand of a particular employee - Suspicion of breach necessary as condition precedent to granting of such authorisation - Whether strict compliance required - Whether multiple breaches have arisen out of a course of conduct - Whether breaches shall be treated as a single breach.

Conciliation and Arbitration Act 1904 ss. 42A, 119, 119(1A)

Northern Territory Meat Processing Award 1984 Clause 23(c)

The Australasian Meat Industry Employees Union v. Meneling Station Pty Limited, Federal Court of Australia. Evatt J 14 January 1987

Federated Carters and Drivers' Industrial Union of Australia v. McKay [1922] HCA 2; (1922) 30 CLR 139

The King v. Bates (1911) 1 KB 964

Gilmore v. Midway Springway Pty Limited (1980) 33 ALR 605

Quinn v. Martin (1977) 31 FLR 25

HEARING

SYDNEY
14:1:1987

Counsel for the Applicant: Mr Kenzie QC with Ms Simpson

Solicitors for the Applicant: Maurice May & Co., Sydney

Counsel for the Respondent: Mr Hungerford

Solicitors for the Respondent: Messrs Stephen Jaques Stone James, Sydney

ORDER

Pursuant to s.119 of the Conciliation and Arbitration Act 1904 a pecuniary penalty be imposed on the respondent of $750 for breaches of Clause 23(c) of the Northern Territory Meat Processing Award 1984 on 15 November 1985 and on 19 May 1986, which said breaches are to be treated as constituting a single breach of that Clause within the meaning of s.119(1A) of the Act.

The said penalty to be paid to the Australasian Meat Industry Employees Union.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

DECISION

By application dated 17 July 1986 the Australasian Meat Industry Employees Union (the organization), an organization registered under the Conciliation and Arbitration Act 1904 (the Act), sought orders that a penalty be imposed by the Court on Victoria Valley Beef Pty Limited for a breach or non-observance of the Northern Territory Meat Processing Award 1984, as varied, (the Award). Clause 2 of the Award provides that the Award shall be binding on the organization, its officers and its members and on the Meat and Allied Trades Federation of Australia (MATFA) and its members (amongst other employers) in respect of their employees employed in meat processing establishments in the Northern Territory.

2. By leave of the Court the applicant, on 18 August 1986, filed and served an amended application setting out particulars of alleged breaches or non-observances of the said Award. Those particulars read:

(i) Breach of clause 23(c) in that on 15.11.85 the

Respondent failed on demand on reasonable notice to
produce for inspection roster and time and wages records
to an official of the Applicant authorised in writing to
inspect such record by the General Secretary thereof.

(ii) Breach of clause 23(c) in that on 19.5.86 the Respondent
failed on demand on reasonable notice to produce for
inspection roster and time and wages records to an
official of the Applicant authorised in writing to
inspect such record by the General Secretary thereof.

3. Clause 23 and 25 of the said Award are fully set out in the reasons for judgment in The Australasian Meat Industry Employees Union v. Meneling Station Pty Ltd (Meneling's case), which judgment has been handed down earlier this day. It is considered that only paragraph (c) and (d) of Clause 23 and paragraph (e) of Clause 25 need to be presently set out.

23 - TIME AND WAGES RECORD

(a) (i) ...
(ii) ...
(iii) ...

(b) ...

(c) The roster and time and wages record shall on demand
upon reasonable notice be produced by the employer for
inspection at the place where the employer carries on
business and employs the employee whose time has been
recorded or at the employer's election at the employer's
head office at any time between 10.00am and 4.00pm
Monday to Thursday inclusive and between 10.00am and
1.00pm on Friday, to an official of The Australasian
Meat Industry Employees Union who has been authorised,
in writing, to inspect it by the General Secretary or
the Secretary of a State branch of the said Union or to
an official of the Meat and Allied Trades Federation of
Australia who has been authorised, in writing to inspect
it by the General Secretary or the Secretary of a State
division of the said Federation.

(d) An inspection shall not be demanded unless the Secretary
of the Union or Federation or the District Secretary or
organizer of any division of the Union or Federation
suspects that a breach of this Award is being or has
been committed.

25 - UNION OFFICIALS AND RIGHT OF ENTRY
A duly accredited representative of The Australasian Meat
Industry Employees Union shall have the right to enter
employers' premises during the meal hour for the purpose of
interviewing employees on legitimate Union business on the
following conditions:

(a) ...
(b) ...
(c) ...
(d) ...

(e) that if any employer alleges that a representative is
unduly interfering with his business or is creating
disaffection amongst his employees or is offensive in
his methods, or is committing a breach of any of the
previous conditions, such employer may refuse the right
of entry but the representative shall have the right to
bring such refusal to the Board of Reference.

4. Affidavit evidence was led on behalf of the applicant, from affidavits of Mr Jack O'Toole, the Federal Secretary of the organization and Mr Patrick Roughan, the National Organiser of the organisation, both sworn on 15 July 1986; Trevor Raymond Surplice, an organiser for the Northern Territory attached to the Queensland Branch of the organization, sworn 19 August 1986 and Leslie Day, the Queensland Branch Secretary of the organization sworn 24 September 1986. Each of the four deponents also gave oral evidence.

5. Affidavits were filed on behalf of the respondent company, the deponents being Mr Donald Edgar Hoar, a Director and Manager of the respondent company and Frances Eileen Hoar, his wife who is also a Director of the respondent company, both sworn 7 October 1986. Both Mr and Mrs Hoar also gave oral evidence.

6. These reasons for judgment should be read in conjunction with those in Meneling's case. That case was heard immediately before the present matter. Counsel for the applicant organization herein appeared in both matters whilst different Counsel represented the respondents in each matter. Despite this many of the respondent's submissions in each case were identical and accordingly some of the present respondent's submissions have been dealt with fully in the reasons for judgment in Meneling's reasons for judgment.

7. In the present matter, it was conceded by the respondent, for the purposes of the present proceedings, that the applicant organizaion is an organization of employees registered under the Act; that the respondent company was at all material times a member of the Meat and Allied Trades Federation of Australia and as a result was, at all material times, bound by the Award; that both Mr Roughan and Mr Surplice are and were, at all material times, officials of the applicant organization and further that no relevant distinction is or was to be drawn between a reference to "the General Secretary" in Clause 23(c) of the Award and "the Federal Secretary" identified in the certified rules of the organization, an office held by Mr O'Toole.

8. Evidence, which is accepted, shows that both Mr Roughan and Mr Surplice, in company, attended at the respondent's premises on both 15 November 1985 and 19 May 1986 seeking to inspect, pursuant to Clause 23 of the Award, the time and wages record of the respondent's employees. Each had the same authority as that carried by each of them on their respective visits to the premises of Meneling Station Pty Limited at Batchelor. Both of these authorities are set out in the reasons for judgment in Meneling's case together with the circumstances under which each authority came into existence.

9. In addition, the following telexes and telegrams which were either exhibited to affidavits filed or tendered in evidence are set out.

As to the alleged breach on 15 November 1985

(a) Urgent radio telephone telegram dated 11 November 1985 to Don

Hoar, Victoria Valley Beef Pty Limited, Victoria River
Crossing, Northern Territory:

Please note that as Federal Secretary of the
Australasian Meat Industry Employees Union I have
authorised Pat Roughan and (sic) officer of the Union to
act under s.42A of the Conciliation and Arbitration Act
to enter your premises being premises in which work to
which the Northern Territory Meat Processing Award 1984
applies is being carried on and the premises occupied by
you as an employer bound by that Award for the purpose
of insuring (sic) observance of the Award and for that
purpose to inspect any work books or documents and to
interview (to be) (sic) members of the Australasian Meat
Industry Employees Union on these premises. Mr Roughan
will be accompanied by Trevor Surplice, BT (sic)
organiser. They will be arriving on Friday November 15.
Regards Jack O'Toole, Federal Secretary.

(b) Telegram from Mr Hoar to Mr O'Toole dated 12 November 1985 to

the organization's office at Sydney:

I would advise that as the representatives of your union
have interferred with my business and been offensive
with their methods and created disaffection with my
employees that their right of entry is hereby revoked
(sic sc refused) pursuant to Clause 25(e) of the
Northern Territory Meat Processing Award 1984.

(c) Telegram from Mr O'Toole as Federal Secretary of the

organization to Mr Hoar addressed to Victoria Valley Beef Pty
Limited via Katherine, NT, dated 12 November 1985:

I have received your telegram refusing access to your
works and employees under section 42A of the
Conciliation and Arbitration Act. We do not accept your
right to refuse such access. We intend to take
appropriate action as advised. However I insist that
access to the roster time and wage records be given to
Pat Roughan an authorised official of the AMIEU under
Clause 23(c) of the NT Meat Processing Award. As
Federal Secretary of the Australasian Meat Industry
Employees Union I suspect that breaches of the Northern
Territory Meat Processing Award 1984 have been and
continue to be committed at your establishment.
Pursuant to Clause 23 of the Award I require you to
produce at Victoria Valley Beef P/L Abattoir to Mr Pat
Roughan the roster and time and wages records for all
employees at that abattoir at 11am on Friday Nov 15.
Regards Jack O'Toole Federal Secretary.

10. It is accepted that when the telegram of 11 November 1985 was phoned through by the Telecom authorities to the respondent premises at Victoria River Crossing, Mr Hoar was either on his way to or was in Perth. Mrs Hoar was able to contact her husband on the evening of 11 November by phone and informed him of the contents of the telegram. As a result Mr Hoar forwarded his telegram of 12 November from Palmyra Post Office, a suburb of Perth at about 9.00am.

11. Further, it is accepted that Mr O'Toole's telegram of 12 November to Mr Hoar was apparently not phoned through to the respondents premises at Victoria River Crossing for some unexplained reason but was delivered to those premises at about 4.00pm on 15 November 1985 after Mr Roughan and Mr Surplice had arrived at and left those premises on that day. This fact is discussed later herein.

As to the alleged breach on 19 May 1986

12. On 27 March 1986 a Full Bench of the Industrial Commission, following a lengthy hearing during which oral evidence was given by (inter alia) Mr Hoar, amended the Award by deleting Clause 33(c) and substituting a new Clause 33(c) as follows:

(c) If an employer intends to remunerate any of his
employees under a system of payment by results pursuant
to subclauses (a) and (b) of this clause, he shall
notify the Federal Secretary of the Union of his
intention in writing. The Federal Secretary of the
Union or his nominated delegate may thereafter consult
with the employees concerned within seven days of such
notification. Subsequently the terms of any system of
payment by results to be applied shall be established by
negotiation and agreement between the employer and the
majority of employees concerned, or their nominated
representatives.

13. Following the setting out of the above new Clause 33(c) the Full Bench, as appears from its decision in Print G2668, went on to say:

We re-emphasise that this variation is an attempt by us to
encourage a move towards an essential improvement in
industrial relations. Whether that attempt proves
efficacious will obviously depend upon the willingness of the
parties to make their own contribution towards an
improvement. That is a matter that can be tested on the
facts and therefore the variation will operate from today
until 19 December 1986, or the end of the 1986 season,
whichever occurs later.

14. On 17 April 1986 Mr Hoar, on behalf of the respondent company, telexed Mr O'Toole, apparently pursuant to the new Clause 33(c) as follows:

This is to advise that we will be negotiating a payment by
result agreement with our employees for the 1986 killing
season.

15. It is noted that the above telex was forwarded from telex no. AA 85575. Evidence was given that this number belonged to the Confederation of Industry and Commerce at Darwin and was used as the telex number of the respondent and other meat employers in the Northern Territory during negotiations with the organization at about this time. The respondent company was then a member of the Northern Territory Confederation of Industry and Commerce and it would appear that that Confederation, through its staff, acted for the respondent company either directly or as an agent for members of the Meat and Allied Trades Federation in the Northern Territory including the respondent. A Mr Ralph Crow was the Confederation's Executive Director in Darwin and evidence was also given that a Mr Shane Coyne was attached to that office in some industrial relations position.

16. Mr O'Toole replied to Mr Hoar's telex of 17 April 1986, addressing the telex to Mr Hoar at telex no. AA 85575 as follows:

Would you please advise your commencement date for the 1986
killing season and the date you expect your employees to be
on site.

17. Two further telexes were in evidence, first, from Mr O'Toole to Mr Ralph Crow, Executive Director, Northern Territory Confederation of Industry and Commerce, addressed to telex no. AA 85575 dated 7 May 1986 which reads:

I refer to a telex received at this office dated 17th April,
1986 advising of intention to negotiate payment by result
with employees signed D. Hoar - Victoria Valley Beef Pty Ltd.

18/4/1986 telex to D. Hoar requesting commencement date of
1986 season and when employees would be on site. No
response.

On Wednesday 23/4/1986 National Organiser, Pat Roughan,
visited your Darwin Office and spoke to Senior Industrial
Adviser Mr B. Lloyns.

Mr Lloyns advised that he would seek information from D. Hoar
as to details required in telex's to Hoar on 18/4/1986 and
this information would be telexed to Meat Union Federal
Office.

I am still patiently awaiting details of D. Hoar's
commencement date for 1986 killing season and date when
employees will be on site.

Please advise.

Regards,
Jack O'Toole
Federal Secretary A.M.I.E.U.

and second, a telex dated 16 May 1986 from Mr O'Toole to Mr Hoar addressed to telex no. AA 85575 which reads:

I wish to advise that AMIEU officers P Roughan and T Surplice
will be visiting Victoria Valley on Monday May 19, for the
purpose of addressing your employees and inspect time and
wages records.

It would be appreciated if you were available for
consultations.

Regards
Jack O'Toole
A.M.I.E.U.

18. The message of 16 May 1986 telexed from Mr O'Toole to Mr Hoar at AA 85575 was also telegraphed from the Sydney Office of the organization addressed to Mr Don Hoar, Victoria Valley Beef, Katherine NT on 16 May 1986.

19. It is accepted that Mr Roughan had checked with the Telecom authorities and ascertained that the telegram of 16 May 1986 was sent to Mr Hoar on 16 May 1986. But apparently that telegram, as a written document, was not received by the respondent company at its premises at Katherine until 26 May 1986. Nor was that telegram phoned by radio telephone through to the respondent's premises at Victoria River Crossing by Telecom as was the usual practice. The typed document forming the telegram had apparently been placed in the private mail box of the respondent company at Katherine by Telecom's staff at Katherine. The box was not cleared until 26 May 1986.

20. As regards notice of the proposed visit of 19 May 1986 Mrs Hoar in cross-examination denied that Mr Coyne had advised her before 19 May 1986 that the Confederation of Industry and Commerce in Darwin had received a telex or had been otherwise informed that officials of the organization proposed visiting the respondent's premises on 19 May to inspect the respondent's time and wages books. She agreed however, that Mr Coyne phoned her from Darwin on Friday 16 May 1986 but claimed that he at that time merely informed her that Mr Roughan and Mr Surplice had that day been to see him wanting to know "what their reception would be like if they came onto the property". She had informed Mr Coyne "that it would be exactly the same" as the earlier visit. She agreed in cross-examination that it would be a fair assumption that Mr Hoar had not been on the premises on Friday when the call from Mr Coyne came in and that he had not been back to the premises before the visit by Mr Roughan and Mr Surplice on Monday, 19 May 1986, as she believed if he had Mr Hoar would have waited to see the union officials. It was her belief that that time, Mr Hoar was some miles away from the premises mustering cattle. She further agreed that it would be unusual if she had not spoken to her husband during the weekend on their own radio on their private frequency which radio has a radius of some 500 kilometres and if she had, she would certainly have mentioned to him the call from Mr Coyne.

21. Further, the Court also accepts the evidence of Mr O'Toole that at relevant times in October/November 1985 through to April/May 1986 the organization, through its officers, had determined that as a matter of policy any negotiations and discussions between the organization and certain members of the Meat and Allied Trades Federation including the respondent should, whenever possible, be in writing or, if oral, be corroborated. In view of the history leading up to the handing down of the federal award in early 1985 and events leading up to variations to Clause 33 by a Full Bench of the Industrial Commission in or about March/April 1986 the Court accepts that such a decision by the responent organization through its officials was reasonable in the circumstances. It was because of this situation together with the fact that telephonic communications between Sydney/Darwin and the respondent's premises was only by radio telephone (which meant that even if contact was made, conversation was generally difficult because of atmospheric conditions) that no attempt had been made by the organization's officials to speak by phone direct to Mr or Mrs Hoar immediately prior to the visit of 19 May 1986.

22. In addition to the above matters and the above written communications, the following evidence is accepted.

As to the alleged breach of 15 November 1985

23. Mr Roughan in his affidavit of 15 July 1986, sets out his version of a conversation between Mrs Hoar and himself and Mr Surplice. This conversation was held between those people whilst Mr Roughan and Mr Surplice were in a motor vehicle at a point on an access road to the respondent's premises. At this point a motor vehicle identified as belonging to the respondent company had been parked across the road. Mrs Hoar claimed that she and some of the respondent's employees were then planting trees at or about this spot when the union officials arrived in their car. Mrs Hoar approached the car and, unbeknowns to either Mr Surplice or Mr Roughan, taped the conversation by means of a small tape recorder which she held concealed in her hand. The conversation, as taped, is fully set out. It should be noted that the taped conversation does not differ in any material way from Mr Roughan's account but adds matters which were not raised in Mr Roughan's version as set out in his affidavit. The taped conversation as set out in Mrs Hoar's affidavit of 7 October 1986 reads:

I (ie Mrs
Hoar) said: Hi.

Roughan said: My names Pat Roughan, we're from AMIEU. We're
here to inspect the times and wages records.
We sent telegrams to Don Hoar telling him.

I said: We sent one back refusing entry.

Roughan said: No, we sent another one then telling you that
you really had no right to do that.

I said: Well we haven't got any other telegram from
you. Far as I know you're just not to come
in. Don's not here, right? So you can't look
at the books anyhow cause the manager's not
here.

Surplice said: Do you think by any chance you can ring the,
ah, one of your agents at the Conf. of
Industry to get some advice on the matter.

Roughan said: Our understanding, under the Act we have the
right to come in and examine the time and
wages books.

I said: Yeah.

Roughan said: We spoke to your agent yesterday and he was
going to contact you by phone and talk to
yesterday.

I said: Well who did you speak to.

Roughan said: Shayne Coyne.

I said: Yeah, well no one's rung us and we haven't had
any other telegram. As far as I know there's
just no right of entry. Right] So you wont
be able to come on the property specially
seeing the managers not here.

Roughan said: Under the Act.

I said: Well, under the Act the managers got to be
here anyhow so you know seeing he's not here
you just can't do it] If we'd got a telegram
from you we could've even let you know he
wasn't here. He's not even in the N.T. at the
moment.

Roughan said: We sent a telegram on the same day we got your
answer. We've got a copy of the one we sent.
It was definitely sent.

I said: Yeah. Oh well that's strange we didn't get
it.

Roughan said: Yeah it seems a bit strange doesn't it.

I said: Peculiar. (Pause)

I said: Alright] Well there's nothing else I can do
anyhow so you'll have to take it from there,
alright?

Roughan said: Yeah.

I said: Right - See you.

This conversation took place between 10.00 am and 11.00 am on 19 May 1986.

24. When asked why she had a tape recorder with her at the time when she claimed she was assisting in the planting of trees, Mrs Hoar stated that as there had been earlier pickets outside the respondent's premises she had taken the advice given by her husband and members of the Confederation in Darwin that she should carry a tape recorder in order to tape any discussions with men in the picket line. There was no clear evidence before the Court as to when it was that picket lines were claimed to be outside the respondent's premises but, so far as the court is aware, such a picket line was not in place at the respondent's premises or a matter of controversy on or about 15 November 1985.

25. After the said conversation between Mrs Hoar and the two officials of the organization, Mr Roughan and Mr Surplice remained outside the respondent's premises for some time hoping that some of the employees would approach them during the mealbreak in order to discuss any problems. Apparently no employees then approached the officials so after some two hours they left.

As to the alleged breach of 19 May 1986

26. Mr Roughan and Mr Surplice arrived at the Victoria Valley Abattoir sometime after 9 am and spoke with Mrs Hoar on the road leading to the homestead and office. Apparently this conversation was not taped by Mrs Hoar. She was asked by Mr Roughan if Mr Hoar was available as he and Mr Surplice wished to examine the time and wages books. Mrs Hoar informed the officials that Mr Hoar was absent from the premises and told them that "you are not going to see the books or anything else as you have not given notice of your intention to visit the property today". Mr Roughan informed Mrs Hoar that a number of telexes and telegrams had been sent notifying of the intended visit to address members and also to inspect the time and wages records. He also informed Mrs Hoar that he had spoken to Mr Coyne at the Confederation of Industry and Commerce officers at Darwin and that he knew that Mr Coyne had spoken to Mrs Hoar. It is accepted that Mrs Hoar then said:

You are not welcome and you cannot see any wage and time
books. It is not acceptable to the company because you have
not notified us direct and you well know the company
telephone number. Anyway there is no breach of the Award and
unless there is a breach you are not entitled to see the
books.

Mr Roughan them informed Mrs Hoar that,

The Award entitles us to inspect the books if the Secretary
suspects a breach and the Secretary does in fact suspect a
breach of the Award.

Mrs Hoar then said,

That does not matter, you must prove to us that we are in
breach of the Award.

Mr Roughan then suggested to Mrs Hoar that she contact the Confederation of Industry and Commerce office in Darwin for advice, indicating to her that he and Mr Surplice were prepared to wait two or three hours while she did so. Mrs Hoar replied:

I won't be contacting anybody and I have already received
advice as to my rights and that is that. You have not
notified adequately your intention to visit.

Mrs Hoar was then asked whether they could speak with the employees and she indicated that she would send a message to the employees to let them know that the officials were there and if the employees wanted to speak to the officials they could but they must leave the property and speak to them outside the property.

27. It is accepted that thereafter Mr Roughan and Mrs Surplice waited outside the premises for some three hours before finally departing without having the time and wages records made available by the respondent for inspection.

28. Further, the following evidence, which is relevant to both incidents, is accepted.

29. Mrs Hoar gave evidence that shortly after the handing down of the 1984 Award in March 1985, she attended a conference in Darwin called by the MATFA, in May or June 1985 for the purpose of discussing the Award. The proprietors of a number of Northern Territory abattoirs attended that Conference which was addressed by representatives of the MATFA. Those discussions included reference to the obligations imposed upon employers by that Award including Clause 23. After the Conference it was her belief that the organization was only entitled to come onto the premises to inspect the time and wages records only "if there had been a breach of the Award." She agreed that this view had been formed after discussions with her husband following the Conference in Darwin and that it was also Mr Hoar's view that before an inspection of the time and wages records could be asked for by the Union official, the official had to show that the breach had in fact occurred.

30. The time and wages records kept by the respondent were compiled, in the main, by Mrs Hoar. She had knowledge of the book-keeping method and how the weekly wages of employees were calculated under the agreed rates. She said she would be surprised if her husband would be able to fully understand and explain those records. Current wages records for all employees connected with slaughtering, boning and meat processing work (ie all employees paid pursuant to the Award) were kept in one volume, there being within that volume various sections for employees doing different types of work. That volume was normally kept on the premises except when sent to the Accountant at Darwin for the purpose of preparing taxation returns following which it was immediately returned. If the volume was in fact at the premises at Victoria River Crossing, it could be produced in less than an hour. Earlier time and wages records were stored at those premises but would take perhaps up to two hours to be located and produced if required.

31. Mr Hungerford, Counsel for the respondent submitted, in his final submissions, that before the Court could determine that there had been a breach of Clause 23(c) of the Award, the Court would have to be satisfied that each of seven conditions had been proved. These conditions, not necessarily in the order stated by Mr Hungerford, were claimed to be:

1) Paragraph (d) of Clause 23 is limited in its purpose to
investigating a suspected breach of the Award which breach
must be real and identifiable and not merely speculative or
illusory.

2) Reasonable notice of demand must be given to the employer
concerned of the intended inspection of the record referred
to in Clause 23(c).

3) The notice of demand is to be in respect of the record
concerning a particular employee and not employees in general
or at large.

4) The inspection is to take place where the employer carries on
his busines and employs the employee or, at the employer's
election, at its head office.

5) The inspection is to be at any time between the times set out
in Clause 23(c).

6) The inspection is to be by an official of the organization.

7) Such official must be authorised in writing to inspect the
particular employee's record by the General Secretary or the
Secretary of a Branch of the organization only when such
General Secretary or Branch Secretary suspects a breach of
the Award is being or has been committed, such suspected
breach being of the type referred to in 1) above.

32. Mr Hungerford made the concession that he did not propose to argue conditions 4), 5) or 6). As to condition 5), it was further conceded by Counsel for the respondent, that it was not essential that a time, being a time within the times set out in paragraph (c), be stipulated by the organization when given notice of demand. It was conceded that it was sufficient if a date for the inspection was nominated, the inference being that such inspection was not being demanded at a time on that date other than within the times referred to in the paragraph.

33. In support of the first condition, Mr Hungerford referred the Court to the decision in The Federated Carters and Drivers' Industrial Union of Australia v. McKay [1922] HCA 2; (1922) 30 CLR 139. A reading of that case, in my view, does not support the proposition put forward by Mr Hungerford. On the contrary, that case supports the argument of the applicant that it is not incumbent upon the organization or its official to state the nature of the breach of the Award which is suspected before the employer is required to produce the record or alternatively that the refusal of such official to state to the employer the nature of the breach of the Award, which the employer was suspected of having committed, did not justify the employer in refusing to produce the record for inspection. Further, it is clear in my view, that the High Court in that case determined that the particular clause of the award there under discussion did not make it necessary for the organization to prove that the particular officer of the organization had, when he gave the necessary authority to the person to carry out the inspection, good reason to suspect a breach of the Award by the employer.

34. It was argued by Mr Hungerford that in an application such as the present if, as was done here, the appropriate union official simply swears that he had a suspicion that there is or had been a breach of the award by the respondent then perhaps the Court, where such statement is not tested, could accept that evidence as being sufficient to base a finding of a breach assuming the other conditions were proved. But where the respondent does test such evidence, and it is then apparent that such suspicion is merely speculative and not identifiable then the Court should determine that the suspicion is not bona fide and refuse the application.

35. Without making a definitive decision in this regard the evidence in the present case, which is accepted, is such that Mr O'Toole, as at the time when he issued the authority to Mr Roughan on or about 15 November 1985, and continuing through to May 1986 was aware of complaints by former employees of the respondent that they were of the view that they had been underpaid contrary to the Award and that there had been other particular breaches of the Award. Again, there is evidence, which is accepted, that Mr O'Toole was aware of statements by Mr Hoar, in evidence given by him on 21 November 1985 before the Federal Industrial Commission, of further breaches so that when he, Mr O'Toole, received Mr Hoar's telegram of 17 April 1986 advising the organization that Victoria Valley Beef Pty Limited intended negotiating a payment by result agreement with its employees for the killing season of 1986, Mr O'Toole suspected that there would be a breach or breaches of the Award as a consequence of such agreement. This suspicion was fuelled by the silence of the respondent following Mr O'Toole's telex to Mr Hoar of 18 April 1986. Accordingly, the Court is satisfied that the suspicion held by Mr O'Toole in April/May 1986 was not merely speculative.

36. As to the respondent's second so-called condition that no reasonable notice of demand had been given by the respondent in either instance.

37. It is clear in my view, in respect of the 15 November 1985 demand, that the respondent had been given at least four days notice. When Mr Roughan and Mr Surplice arrived at the respondent's premises on the morning of 15 November 1985, it is accepted that Mr Hoar was absent from those premises and that Mrs Hoar had not then received the applicant's telegram of 12 November 1985. However, the Court is clearly of the view that even if Mrs Hoar had been aware of the contents of that telegram she would not have produced the time and wages records on 15 November 1985, she having been directed by her husband not to produce them to any official of the organization in his absence.

38. On that occasion she at first had said to Mr Roughan and Mr Surplice that they were not welcome and that they could not see the time and wages records. Subsequently she informed them that they could not enter as Mr Hoar was then absent from the property. There is evidence which is accepted, that on that occasion the two officials then left the premises and waited outside for some hours before leaving. Mrs Hoar gave evidence, which is accepted, that the records in question, which were current for that killing season, were then on the premises and could have been found and produced inside one hour if she so desired. Clearly the oral demand made by Mr Roughan and Mr Surplice on 15 November 1985 was on reasonable notice in all the circumstances.

39. Again, as to the visit of 19 May 1986, it is accepted that Mr O'Toole's telegram of 16 May 1986 was not received at the premises until 26 May 1986 and that the contents of that telegram had not been phoned through or received by either Mr or Mrs Hoar prior to 26 May 1986. But as stated earlier, Mrs Hoar had been contacted by phone by Mr Coyne from Darwin on Friday, 16 May 1986 and asked about the respondent's attitude to a visit from the officials to inspect the time and wages records. It would be surprising if Mr Coyne had not then mentioned that the officials intended visiting the respondent's premises on the following Monday. Mrs Hoar claims that he did not. However, as the Court is satisfied that an oral demand on reasonable notice was made to Mrs Hoar by Mr Roughan on Monday 19 May 1986, the Court finds it unnecessary to determine this fact.

40. When Mr Roughan and Mr Surplice arrived at the respondent's premises on 19 May Mrs Hoar again informed the officials that they were not welcome and that as Mr Hoar was again absent from the property that she would not permit them to enter the premises. On this occasion she further stated that as the officials were not prepared to say what was the alleged breach, then no records would be produced for inspection. Mr Roughan then indicated to Mrs Hoar that he accepted the fact that she had not received the contents of the telegram informing the respondent that the officials were coming that day but pointed out to her that he had travelled up from Sydney in order to carry out the inspection and that she should contact Mr Coyne of the Confederation of Industry and Commerce at Darwin and seek his advice as he was prepared to wait some 2 or 3 hours, if necessary, in order to carry out the inspection. In fact, he did wait but no records were produced for inspection. Again, it is accepted that had Mrs Hoar wished, she could then have produced the particular documents within one hour.

41. There was evidence of the difficulties encountered generally in communicating between Sydney and employers' premises in the Nothern Territory and of the great distances required to be travelled by the officials in visiting such premises. For example, Mr Roughan in travelling to Victoria River Crossing, had to fly from Sydney to Darwin, generally staying there overnight, then travel by road some six hours down the "track" to Katherine, then travel west by road for a further 200 kilometres.

42. The Court is satisfied that on the morning of 19 May 1986 Mr Roughan had in fact asked Mrs Hoar if he might inspect the time and wages records, those records could have been made available within the hour, and the officials were prepared to wait for at least three hours for them to be produced. In all the circumstances the Court is of the view that such demand was a proper demand on reasonable notice; consequently Mrs Hoar as a director of the respondent company was obliged under the provisions of the Award to cause those records to be produced for inspection by Mr Roughan that day.

43. As regards the respondent's so-called third condition, namely that the notice of demand should refer to a particular employee and not employees in general. This argument is rejected. The submission has been referred to in Meneling's case and the Court does not repeat its reasons in this regard.

44. As indicated earlier Mr Hungerford in effect conceded the 4th, 5th and 6th conditions set out above, indicating that he did not propose to argue that they had not been satisfied in this particular case.

45. This then leaves for consideration the respondent's argument in respect of the seventh of the so-called conditions said to be required to be made out by the applicant before the Court could be satisfied that the alleged breach or breaches of the Award had been committed by the respondent. This condition deals with the authority here given by the Secretary to Mr Roughan as an official of the organization.

46. It was argued by Mr Hungerford for the respondent that there were three necessary features about any written authority said to be issued under Clause 23(c). First, the authorisation must be relatively temporal to the time the authority is to be exercised. Secondly, the authority must be an authority as to the relevant power to be exercised and thirdly, it must be a relevant authority in terms of the purpose of which it is to be used. Mr Hungerford conceded that the suggested second and third features were very much related but insisted that the two had two separate aspects.

47. As to the first of these features, it was argued by the respondent that the authority could not be at large but had to be specific and referable to a particular purpose which was then current. Accordingly it was necessary that an authority, in order to be a proper authority within the meaning of Clause 23(c), include the name of a particular employee whose current time and wages record is to be inspected.

48. Again, as to the second feature, the authority must refer to the power referred to in clause 23(c) specifically. Accordingly it was submitted that the s.42A authority held by Mr Surplice from the Queensland Branch Secretary was not a written authority which could found an inspection of the time and wages record of a particular employee kept by the employer. In this regard Mr Hungerford relied on authorities such as The King v. Bates (1911) 1 KB 964 and Gilmore v. Midway Springway Pty Limited (1980) 33 ALR 605.

49. The Court understands this argument to be identical with that put to the Court by the respondent in Meneling's case and which has been there rejected. The Court does not repeat its reasons for judgment in this regard.

50. The third feature suggested by the respondent that was required in respect of a proper authority was that the authority must include specifically the purpose for which it is to be used. As the Court understands this submission it was argued that the authority itself must particularise not only the name of the employee in question, but particulars of the breach itself. This argument is rejected. As was stated by the Court in its reasons for judgment in Meneling's case, Clause 23 says nothing in this regard.

51. I am satisfied that on its proper construction clause 23(c) does permit a general authorisation to be given to an official of the organization by the approprate officer of the organization.

52. Counsel for the applicant on the other hand has submitted that there are only three matter swhich have to be proved in order that the Court might be satisfied that a breach has been committed. Those three matters are, a) that there was a demand on reasonable notice which it was submitted was all part of the same concept; b) that that demand was made by an official; and c) that the official was authorised in writing by the Secretary to inspect the relevant documents. If those three pre-conditions are met then, so it was argued, the employer has an obligation to produce the time and wages records kept under Clause 23 either at his place of business or at the head office of the employer between the hours set out in the Clause.

53. It was argued by the applicant that Clause 23(d) is not relevant on the hearing of an application brought for breach of the Award under s.119 of the Act. That Clause was merely a pre-condition to the making of the demand. I reject this latter argument. The Court, in my view has to be satisfied that the necessary suspicion exists immediately before any demand is made for that demand to be a valid demand within the meaning of Clause 23. Here the Court is so satisfied.

54. It was submitted by the applicant that both demands had been made on reasonable notice. Reasonable notice of course depends on the circumstances of each and every case. In the present case there are matters which, in the Court's view, are relevant in determining this question. These are the difficulties in communication. It is quite clear on the evidence that the organization had made every reasonable effort to communicate with the respondent in the giving of notice of the proposed two visits for the purpose of inspecting the time and wages books. It must be borne in mind that this Award was intended to work in the Northern Territory and especially designed for that Territory where it is notorious that difficulties of communication exist. The Award is referable to abattoirs which are of necessity quite isolated. Travel arrangements are extremely difficult and distances travelled are very extensive. Breakdowns of telephonic or telex communication no doubt were envisaged by the draftsman of the Award. Oral demand on reasonable notice is clearly permitted to be made in person.

55. The Court has already indicated that it is accepted that it was reasonable for the organisation in all the circumstances prevailing at the time not to communicate with the respondent by means of direct telephone calls. The Court is satisfied that the organization, in all the circumstances, did everything that it could to give notice by means of telexes and telegrams.

56. The Court is satisfied that (a) on 15 November 1985 and 19 May 1986 oral demands were made by Mr Roughan and/or Mr Surplice of Mrs Hoar for the production of the relevant time and wages records; and (b) on each occasion those two officials were prepared to wait up to 2-3 hours for such production, which time was clearly sufficient time for their production if Mrs Hoar was so willing.

57. In all the circumstances the Court determines that each of those oral requests were "demands on reasonable notice" within the meaning of Clause 23(c) of the Award. The Court rejects the argument of the respondent that those oral demands were for the books be produced forthwith and consequently were not proper demands within the meaning of Clause 23. At no stage did Mrs Hoar indicate to the officials that it was impossible for her to get the books ready for inspection at such short notice. It is clear that on both occasions she had no intention of producing the relevant time and wages records to the officials. The Court's clear impression is that Mrs Hoar adopted this course as a result of being ordered by her husband that under no circumstances were the records to be produced to an official of the organization in his absence. The Court has had the advantage of seeing Mr Hoar whilst giving evidence and it is abundantly clear that, as he so forcefully then stated, there can be but one captain in any enterprise and that he was that captain. It was clear that he was "the boss" and his orders were to be obeyed, not only by employees of the respondent company, but also by his wife.

58. In all the circumstances the Court is satisfied that the respondent company breached the Award as alleged in the amended application herein.

59. Counsel for the respondent has urged upon the Court that if it were satisfied that breaches had occurred as alleged, then such breaches resulted from a course of action as referred to in s.119(1A) of the Act. Having given the matter careful consideration in this regard the Court is of the view that both breaches have resulted as a result of the respondent company's belief held by its manager and director, Mr Hoar and also by its other director, Mrs Hoar, that the officials from the organization were not entitled to demand an inspection of the relevant time and wages records unless the organization either directly or through its official demonstrated that a particular breach had in fact occurred. On the evidence in this case the Court is satisfied that that was Mr and Mrs Hoar's belief, rightly or wrongly, from information obtained by them when they attended the conference held by the MATFA in Darwin in May/June 1985. Principles governing the application of s.119(1A) are set out in Quinn v. Martin (1977) 31 FLR 25. Accordingly the Court treats the two breaches as constituting a single breach of Clause 23(c).

60. The maximum penalty under s.119(1D)(a)(i) of the Act is $1000. In my view the breaches were serious. But the Court takes into consideration the fact that the particular Award was the first federal award in this industry operating in the Northern Territory and perhaps there were grounds for some confusion as to the proper construction of the relevant paragraphs of Clause 23.

61. In all the circumstances the Court is of the view that a penalty must be imposed. The proper penalty in my view is $750 which sum is to be paid to the applicant organization pursuant to s.120 of the Act.

62. It is noted that the applicant organization has abandoned its claim for an order under paragraph 3 of its application. Under that paragraph the organization sought what in effect would have been a mandatory injunction directing the respondent to produce the relevant records to the Court for inspection by the applicant organization. This subject matter has been discussed at length in the reasons for judgment in Meneling's case, handed down earlier today.