Re Australasian Meat Industry Employees' Union v RJ Gilbertson (Queensland) Pty Ltd [1988] FCA 429 (8 December 1988)

FEDERAL COURT OF AUSTRALIA

Re: AUSTRALASIAN MEAT INDUSTRY EMPLOYEES' UNION
And: R.J. GILBERTSON (QUEENSLAND) PTY. LTD.
Nos. Q11-Q22 and Q26-Q28 of 1987
Industrial Law - Criminal Law and Procedure

COURT

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
INDUSTRIAL DIVISION
Gray J.(1)

CATCHWORDS

Industrial Law - employer and employee - alleged dismissal whether by reason of proscribed circumstances - whether case to answer - whether evidence of dismissal of employees from their employment - whether employment relationship existed at relevant time - whether evidence of injury to person in his or her employment - statutory meaning of words "employer" and "employee" - meaning of "employment" - meaning of words "alter his position to his prejudice" - whether evidence that persons prejudiced in their employment.

Criminal Law and Procedure - information - amendment whether allegation of different offence can be raised outside limitation period.

Conciliation and Arbitration Act 1904 s.5(1)(d)

Crimes Act 1914 s.21A, s.21(1)(c)

Acts Interpretation Act 1901 s.18A

Federal Court Rules

Queensland Meat Works Industrial Agreement Award 1979

HEARING

BRISBANE
8:12:1988

Counsel for the Prosecutor: Mr D. Hall

Solicitors for the Prosecutor: Poteri Woods & Co.

Counsel for the Defendant: Mr M. Cockburn with Mr K. Watson

Solicitors for the Defendant: Morris Fletcher & Cross

ORDER

In each of these proceedings, THE COURT ORDERS that the information is dismissed.

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

DECISION

Before the Court are fifteen informations, alleging that the defendant committed offences against s.5(1)(a) and (f) of the Conciliation and Arbitration Act 1904 ("the Act"). Those provisions are as follows:
"5(1)An employer 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 -
(a) is or has been, or proposes, or has at
any time proposed, to become, an officer,
delegate or member of an organization...
(f) being an officer, delegate or member of
an organization, has done, or proposes to
do, an act or thing which is lawful for
the purpose of furthering or protecting
the industrial interests of the
organization or its members, being an act
or thing done within the limits of
authority expressly conferred on him by
the organization in accordance with the
rules of the organization.
Penalty: $400."

2. The prosecutor, the Australasian Meat Industry Employees' Union ("the Union"), is an organization of employees, registered pursuant to the Act. The defendant is a company, which at certain times has operated a boning room at an abattoir at Cannon Hill, a Brisbane suburb.

3. The charges relate to five persons, namely Robert Charles Dobson, Cecily Myra Hartigan, Donna Theresa Sherrington, Edward David Roy Le Man and Derek Albert Rimmer. The defendant is charged with three offences in respect of each person. The charges fall into three groups.

4. In the first group, which includes matters nos. Q11, Q16, Q19, Q22 and Q27 of 1987, it is alleged that the defendant dismissed each of the five persons from his or her employment, by reason of one or more of the proscribed circumstances. In the cases of Mr. Dobson, Mr. Le Man and Mr. Rimmer, the circumstances alleged are:

(a) that each was an officer or alternatively a delegate of
the Union;
(b) that each had been an officer or alternatively a
delegate of the Union;
(c) that, being an officer or alternatively a delegate of
the Union, each did an act or thing which is lawful for
the purpose of furthering or protecting the industrial
interests of the Union or its members, being an act or
thing done within the limits of authority expressly
conferred on him by the Union in accordance with its
rules;
(d) that, when an officer or alternatively a delegate of the
Union, each did an act or thing which was lawful for the
purpose of furthering or protecting the industrial
interests of the Union or its members, being an act or
thing done within the limits of authority expressly
conferred on him by the Union in accordance with its
rules.

In the cases of Ms. Sherrington and Ms. Hartigan, the circumstance alleged is that each was a member of the Union.

5. The second group of charges is constituted by the proceedings numbered Q12, Q14, Q17, Q21 and Q26 of 1987. In each of these matters, it is alleged that, in May 1987, the defendant injured each of the five persons in his or her employment by:

(a) excluding him or her from his or her usual occupation as
a regular daily employee at the defendant's undertaking
at the Cannon Hill abattoir;
(b) refusing to re-engage him or her in his or her usual
occupation at the defendant's undertaking at the Cannon
Hill abattoir upon the resumption of work thereat;
(c) failing to re-engage him or her in his or her usual
occupation as a regular daily employee at the
defendant's undertaking at the Cannon Hill abattoir upon
the resumption of work thereat;
(d) requiring that employees at the defendant's undertaking
at the Cannon Hill abattoir and the person in respect of
whom the charge is brought acquiesce in the exclusion of
that person from his or her usual occupation as a
regular daily employee at the said undertaking as a
condition of the resumption of work thereat.

The circumstances alleged are the same as those alleged with respect to each of the five persons in the first group of charges.

6. The third group of charges is constituted by matters nos. Q13, Q15, Q18, Q20 and Q28 of 1987. In each of these matters, it is alleged that in May 1987, the defendant prejudiced each of the five persons in his or her employment. The acts alleged to have constituted such prejudicing in employment are the same acts as those alleged to have constituted injury in employment in the second group of charges. In addition the proscribed circumstances alleged are the same with respect to each of the five persons as in the first and second groups of charges.

7. All fifteen charges are being heard together. When the trial began, three other charges were also being heard. Those charges are in matters nos. Q23, Q24 and Q25 of 1987. They relate to a person named Graham Comber Fortey. Mr. Fortey was unable to give evidence, owing to his state of health. The three matters relating to him have therefore been adjourned.

8. In relation to the remaining fifteen matters, the prosecutor's case is now closed. Counsel for the defendant has submitted that there is no case to answer in respect of any of the charges.

9. In dealing with this submission, the Court is not concerned with the issues on which the defendant would carry the onus of proof, pursuant to s.5(4) of the Act, if the occasion arose. The question is whether the prosecutor has made out a case to answer in respect of the elements of each alleged offence on which it carries the onus of proof. The Court must decide whether there is evidence in respect of each of these elements, upon which the defendant could lawfully be convicted. See May v. O'Sullivan [1955] HCA 38; (1955) 92 CLR 654, at p 658.

10. With respect to the first group of charges, an issue arose whether there was evidence that the five persons had been dismissed. The evidence disclosed that, on 3rd April 1987, each had conveyed to him or her by word of mouth or by telegram that the boning room would be closing down at the end of that day's work. Those who were working on that day completed their day's work. Each of the five persons was told that moneys which had accrued due to him or her would be paid out, including moneys standing to his or her credit in a superannuation scheme for employees of the defendant and related companies. There is an open question on the evidence whether advice was given that accrued long service leave entitlements would be paid out. Counsel for the defendant sought to establish that this announcement was made, with a view to distinguishing this shutdown from frequent shutdowns of the boning room because of lack of orders, or an under supply of carcasses to be boned. There is evidence that Mr. Le Man signed a form of application to the trustees of the superannuation fund, in which he said, "As I am no longer employed by a Company within the Gilbertson Group, I hereby apply for my entitlements from the above fund." There is evidence from which the inference could be drawn that the other four persons signed a form in similar terms.

11. On 24th March 1987, each of the employees working at the defendant's boning room had signed a new contract of employment. Clause 17 of the conditions of employment, which formed part of that contract, was headed "DAILY CONTRACT". It included the proposition that, "All employees are engaged on daily hire, except those specifically engaged as casuals, and as such are required to complete their daily contracts of labour".

12. It is common ground that the terms and conditions upon which persons were employed to work at the defendant's boning room were governed by the Queensland Meat Works Industrial Agreement Award 1979 ("the Award"), an award made by the Australian Conciliation and Arbitration Commission, pursuant to the Act. It is necessary to set out the whole of the terms of clause 4 of the Award:

"4 - CONTRACT OF EMPLOYMENT
(a) Employees engaged 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 Agreement
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
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
subclause (i) of this clause.
(d) In consideration of the rights conferred
on regular daily employees by this Agreement,
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 partiuclar 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 12 of
this Agreement.
Provided that, subject to the rights
conferred on the employer under subclause (i)
of this clause, a regular daily employee who
has not be (sic.) notified on the immediate
working day before that he is not required to
attend for work on the following working day
and such employee has attended and offered
himself for employment at the normal starting
time on that day, and such employee was not
offered employment shall be paid for the day
according to the rate of pay prescribed by his
classification.
This proviso to subclause (d) hereof is
not intended to interfere with or have
application in any way in respect to
instructions emanating from the employer to
any employee to attend and offer for work at a
place specified by the employer; or is not
intended to prevent any employee who has been
informed by his employer that hs (sic) is not
required, to attend and offer for work at the
usual place of employment; nor does this
proviso to subclause (d) hereof interfere in
any way with the intention of subclause (e)
hereof of clause 4 which provides a loading of
10 per centum for employees to attend and
offer for work.
(e) A regular daily employee who is a
time-worker shall be paid at the rate of
one-fifth of the ordinary rate per week
prescribed by this Agreement for the
classification in which he is employed.
The ordinary rates per week prescribed by
this part have been fixed on the basis that
they include a loading of 10 per centum.
(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.
The term of employment of an employee as
a casual shall not exceed four consecutive
calendar weeks.
(g) A casual employee who is a time-worker
shall be paid at the rate of one-fifth of the
ordinary rate for five days prescribed by this
Agreement for the classiciation in which he is
employed plus 20 per centum thereof for each
day or shift actually worked.
A casual employee who is a piece-worker
shall be paid at the classification tally rate
plus 20 per centum thereof for the purpose of
calculating the piece-work earnings for each
day worked, for tally earned up to and
including maximum tally. Payment for tally
completed in excess of maximum tally, shall be
paid for at the appropriate rate.
(h) An employee shall perform such work as
the employer may from time to time require,
and, subject to this Agreement, shall perform
it at such times as the employer may require.
An employee not attending for or not
performing his duty shall, except where
otherwise expressly provided in this
Agreement, lose his pay for the actual time of
such non-attenance or non-performance.
(i) Nothing in this Agreement shall affect
the right of an employer to terminate
summarily the employment of an employee for
malingering, inefficiency, neglect of duty or
misconduct, in which case wages shall be paid
up to the day of dismissal only, or to deduct
payment for any day on which an employee
cannot be usefully employed because of any
strike other than in the meat industry, or
through any breakdown of machinery or any
stoppage of work in the meat industry by any
cause for which the employer cannot reasonably
be held responsible, or for any day or part of
a day on which an employee cannot be usefully
employed because of any strike in the meat
industry."

13. Counsel for the defendant argued that the employment of each of the five persons terminated at the end of the working day on 3rd April 1987, by force of clause 4(b) of the Award. There is no evidence that the defendant cut short the working day of any of the five persons. As a result, it was said, the only effect of what the defendant did on 3rd April was to terminate the engagement of each of the five persons as a regular daily employee, i.e. to make it clear that those persons would not be required to attend for work at any time after that date.

14. Counsel for the defendant called in aid the decision of Ellicott J. in Linehan v. Northwest Exports Pty. Ltd. [1981] FCA 199; (1981) 57 FLR 49. In that case, his Honour dealt with award provisions almost identical to those in clause 4 of the Award. As to those provisions, his Honour said, at pp 60-61:

"The status of a regular daily
employee...confers on the employee certain
obligations...but also certain benefits, e.g.
rights to payment for award holidays, sick
leave and annual leave and, in effect, a ten
per cent 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."

Further, at p 61, his Honour said:

"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 21st 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 (the award provision) he was terminating
his engagement as a regular daily employee.
This means that his employment finished in the
ordinary course on 21st 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."

Section 5(1) of the Act makes it an offence to "dismiss an employee". This provision begs the question, to dismiss an employee from what? It would seem that the length and complexity of clause 4 of the Award might have been avoided, and the object of its framer achieved, by a provision to the effect that an employer is not obliged to provide work for an employee on every working day. Nevertheless, the framer of the Award has chosen to distinguish between actual employment, and engagement as a regular daily employee. Since the Award lays down the terms and conditions upon which the five persons the subject of these proceedings were employed, and their actual contracts of employment echoed its terms, it is necessary to apply the distinctions made by clause 4 of the Award. It would be possible to dismiss an employee from his or her employment, in the circumstances contemplated by clause 4 of the Award, only if the employee were required to cease work before the end of a particular day. There seems to be no reason why it would not be possible to dismiss an employee from his or her position as a regular daily employee, notwithstanding that there is no dismissal from a particular day's employment. In this respect, I find myself in disagreement with the conclusion of Ellicott J. in Linehan's case. It is significant that a person with the permanent status given by clause 4 of the Award is described as a regular daily employee. Rights with respect to payment, and other matters, attach to the status of regular daily employee. There is no reason why termination of that status should not be described as dismissal, at least when the act of dismissal occurs during a working day, while the object of it is unarguably an employee, i.e. in an existing employment relationship. In my view, there is involved in the termination of the status of regular daily employee more than a refusal to re-employ.

15. In the present case, however, it is unnecessary for me to decline to follow the conclusion of Ellicott J. In each of the first group of charges, the relevant information alleges that the defendant dismissed the person concerned "from his (or her) employment". Given that, in the terms of clause 4 of the Award, the employment of each of the five persons came to an end at the end of the working day, and that there is no evidence of any attempt to bring it to an end before that time, it cannot be said that there is evidence to support a finding that the defendant dismissed any of the five persons from his or her employment. The evidence may have justified a finding that, on 3rd April 1987, the defendant dismissed each of the five persons from his or her position as a regular daily employee, but that is not what is charged in any of the present proceedings. I am unable to accept the submission of counsel for the prosecutor that the word "employment" in each of the informations in the first group of charges is to be read as referring to the status of a regular daily employee. Because of the peculiar structure of clause 4 of the Award, a reference to the "employment" of each of the five persons, in the context of dismissal, must be construed as a reference to employment beginning and ending on a particular day. As a result, the evidence does not support the first group of charges in the terms in which they are laid.

16. With respect to the second group of charges, the objection taken on behalf of the defendant is that a person cannot be injured in his or her employment unless that person is a party to an actual contract of employment with the person doing the injuring. Since the allegation in each of the second group of charges is that each of the five persons was injured in his or her employment in May 1987, effectively by refusal or failure to re-engage, no injury to any of the five persons in his or her employment was possible.

17. The evidence disclosed that correspondence passed between the branch secretary of the Union and the management of the defendant in April and May 1987, with respect to the possibility of reopening the boning room. In the correspondence, the defendant laid down conditions upon which it was prepared to reopen the boning room. One of those conditions was that eight named persons, including the five persons the subject of these proceedings, would not be re-employed. The boning room was in fact reopened in May 1987. The only one of the five persons who actually applied for re-employment was Mr. Dobson. None of the five persons was re-employed.

18. Counsel for the prosecutor relied upon the extended definitions of "employee" and "employer" in s.4(1) of the Act. According to that provision, in the Act, except where otherwise clearly intended:

""Employee" means any employee in any industry
and includes any person whose usual occupation
is that of employee in any industry;
"Employer" means any employer in any industry
and includes any person who is usually any
employer in an industry and also includes a
Club".

Counsel for the prosecutor submitted that the words "employer" and "employee" in s.5(1) of the Act are to be construed in accordance with these definitions, because nothing about s.5(1) shows that any other course is clearly intended. An employer referred to in s.5(1) could include a person who is usually an employer in an industry; a reference to an employee could include a reference to a person whose usual occupation is that of employee in any industry. The next step in the argument was that the word "employment" should be construed in accordance with these extended definitions, although it is not the subject of any express definition in the Act. On this basis, "employment" would include the state of being a person whose usual occupation is that of an employee in a particular industry. If a person who is usually an employer in an industry does something which injures a person who is usually an employee in that industry, the injury being with respect to the latter person's status as usually an employee in that industry, an offence is committed.

19. This argument was applied to the evidence in these proceedings in the following way. Although each of the five persons had ceased to be an employee and a regular daily employee on 3rd April, each remained a person whose usual occupation was that of employee in the meat industry. The defendant injured each of the persons in his or her usual occupation as an employee in that industry by excluding him or her from being a regular daily employee, refusing or failing to re-engage him or her on the reopening of the boning room, and making it a condition of the reopening of the boning room that he or she be excluded from being a regular daily employee.

20. The notion of construing one word in a statute by reference to the extended definitions of two other words is a somewhat startling one. This is especially so when the consequences of such an extended meaning could go so far beyond the apparent intention of the framers of the statute. On the construction which counsel for the prosecutor advocated, s.5(1) would impose upon any person usually an employer in an industry an obligation not to refuse to employ a person whose usual occupation was that of an employee in the same industry, by reason of the circumstance that the latter person was (for example) a member of an organization. Such an obligation would arguably create a form of preference in employment which would fall outside that which may be created by an award under s.47 of the Act.

21. In my view, it is clear that the legislature intended to create in s.5(1) the offence of injuring an employee in his employment, only in circumstances in which there is a subsisting relationship of employer and employee between the person doing the injuring and the person injured. A person can only be injured in his or her employment, if employment exists.

22. An attempt was made to rely upon s.18A of the Acts Interpretation Act 1901. That provision is as follows:

"18A In any Act, unless the contrary
intention appears, where a word or phrase is
given a particular meaning, other parts of
speech and grammatical forms of that word or
phrase have corresponding meanings."

This provision was introduced into the Acts Interpretation Act 1901 by Act No. 144 of 1976. It was argued that it thereupon gave to the word "employment" in s.5(1) of the Act a meaning which that word did not have previously, by extending it to include a state of being usually employed in an industry. In my view, that is not the effect of s.18A of the Acts Interpretation Act 1901. The word "employment" is not another part of speech or another grammatical form of either of the words "employee" or "employer". Each of those words is a noun, and each has, or is given, a meaning. In my view, the word "employment" continues to bear in s.5(1) of the Act, and in other parts of the Act where it is used, a meaning unaffected by the extended definitions of "employer" and "employee" in s.4(1) of the Act.

23. Counsel for the prosecutor also attempted to gain support from a decision of the Industrial Court of Queensland in a decision concerning the Shearing Industry Award - State and the Station Hands' Award - State, reported in (1956) Queensland Industrial Gazette 198. The question which arose in that case was whether the conduct of shearers in refusing to enter into shearing contracts fell within a statutory definition of strike. In the course of its decision, the court said:

"It was argued that "therein" refers to the
employment. That is so, but the employment
need not only mean present or existing
employment. As already indicated a man is an
employee whose usual occupation is that
of employee in a calling even though at any
stated point of time he is not in a state of
being actually employed.
A man whose usual employment is that of
shearer does not cease to be a shearer merely
because he does not work at his employment
during the month of January, 1956.
On the facts the men in this industry have
refused to continue to work in their
employment in the industry, or they have
failed to do so."

There is obvious difficulty in using a decision on the meaning of a word in one statute as authority for its meaning in another. This is particularly so where the word occurred in a statutory definition, the context of which dictated that it should be given an extended meaning. Nor does the prosecutor derive support for its argument from a passage cited from Squires v. Flight Stewards Association of Australia (1982) 2 IR 155, at pp 163-164. That passage contains an example of what may constitute injury in employment. Nothing about the example, or the passage gives any indication that injury to employment may occur otherwise than within a subsisting relationship of employer and employee.

24. It is common ground in the present proceedings that no actual employment relationship existed between any of the five persons and the defendant at any time in May 1987. It follows that none of the five persons can have been injured in his or her employment by anything which the defendant did or failed to do in that month. There is no evidence to support the second group of charges.

25. With respect to the third group of charges, there was argument about the meaning of the phrase "alter his position to his prejudice" in s.5(1) of the Act. Counsel for the defendant referred to judgments in which examples were given of acts which might constitute alteration of an employee's position to his or her prejudice. These examples are found in Childs v. Metropolitan Transport Trust (1981) Law Book Company Industrial Arbitration Service, Current Review, 946, at p 947, Blair v. Australian Motor Industries Ltd. (1982) 61 FLR 283, at pp 289-292 and Bowling v. General Motors-Holdens Pty. Ltd. (1975) 8 ALR 197, at p 217 in the judgment of Woodward J. Each refers to an act done to a person within the confines of a subsisting employment relationship, and by the other party to that relationship. Despite these examples, I am not persuaded that the phrase "alter his position to his prejudice" is limited to such situations. Having regard to the extended definitions of "employee" and "employer" in s.4(1) of the Act, and to the apparently deliberate choice of a phrase which does not contain a reference to "employment" (as does the phrase "injure him in his employment"), I am of the view that it would be possible for a person usually an employer in an industry to commit an offence by altering the position of a person usually an employee in the same industry to the prejudice of the latter person, by reason of one or more of the proscribed circumstances found in s.5(1) of the Act. I note that, in Linehan v. Northwest Exports Pty. Ltd. [1981] FCA 199; (1981) 57 FLR 49, at pp 61-62, Ellicott J. found that depriving a person of the status of regular daily employee, under an award provision similar to that found in s.4 of the Award, involved an alteration of that person's position to his prejudice. As I have already pointed out, Ellicott J. found that the person concerned had not been dismissed, because his employment had terminated at the end of the working day concerned. Deprivation of the status of regular daily employee may be an example of altering the position of a person with whom there is no longer any employment relationship subsisting. Another example might be in circumstances where an employer first dismisses an employee, e.g. by reason of membership of an organization, and afterwards places that person's name on a blacklist, thereby rendering it more difficult for him or her to gain employment elsewhere in the same industry. If the person's usual occupation is that of an employee in the industry concerned, it is easy to see that his or her position has been altered to his or her prejudice. This does not mean that any employer in that industry, refusing to engage that person, would commit an offence, even if the refusal resulted from a proscribed circumstance. A refusal to employ would not in itself alter the position of the person whose usual occupation was that of an employee in a particular industry. Such a person would remain in the position of being unemployed. The employer causing the name to be blacklisted, however, would commit an offence; the act of that employer would change the position of the other person, by making it more difficult for him or her to gain employment.

26. This reasoning may suggest that the evidence in the present proceedings would disclose an alteration of the position of each of the five persons by the defendant. Again, however, it is necessary to look closely at the allegations made in the informations. These allegations are that, in May 1987, each of the five persons was prejudiced "in his (or her) employment". Whilst it may be true that, on 3rd April 1987, the deprivation of the status of each of the five persons as a regular daily employee constituted an alteration of that person's position to his or her prejudice, it is difficult to see how a refusal or failure to restore that status in May 1987 could constitute such an alteration. It is even more difficult to see how any of the acts alleged against the defendant could constitute the prejudice of any of the five persons in his or her employment. As has been stated previously the evidence does not disclose the existence of any employment relationship between the defendant and the five persons in May of 1987. It follows that none of those persons could be prejudiced in his or her employment by whatever the defendant did or failed to do in that month. The evidence does not support the third group of charges in the terms in which they have been laid.

27. Section 21A of the Crimes Act 1914 provides as follows:

"21A (1) If at the hearing of any indictment,
information or summons any objection is taken
for an alleged defect therein in substance or
in form, or if objection is taken to any
variance between the indictment, information
or summons and the evidence adduced at the
hearing in support thereof, the court may make
such amendment in the indictment, information
or summons as appears to it to be desirable or
to be necessary to enable the real question in
dispute to be determined.
(2) If in any such case the court
considers that the defendant has been misled
by the form in which the indictment,
information or summons has been made out, it
may adjourn the hearing of the case for such
period as it thinks fit and may make such
order as to the costs of the adjournment as it
thinks proper.
(3) The power of the court under
sub-section (1) shall not be exercised in
cases where the court considers that the
required amendments cannot be made without
injustice to the defendant."

With respect to the first group of charges, there are variances between the informations and the evidence adduced in support of them. The informations allege dismissal from employment, whereas the evidence discloses a possible case of dismissal from engagement as regular daily employees. Similarly, there are variances between the informations and the evidence with respect to the third group of charges. That group alleges that each of the five persons was prejudiced in his or her employment in May 1987, whereas the evidence discloses a possible case that each had his or her position altered to his or her prejudice on or about 3rd April 1987. The question therefore arises whether the Court should exercise the power of amendment given to it by s.21A. Reference should also be made to the power of the Court to amend, and the duty to make amendments for the purpose of determining the real questions raised by or otherwise depending on a proceeding, found in O.13 r.2 of the Federal Court Rules.

28. The question whether amendment should be allowed is bound up with the existence of a limited period within which a prosecution in respect of an offence may be commenced. The relevant limitation is found in s.21(1)(c) of the Crimes Act 1914. The period allowed is one year after the commission of the offence. That period has now expired with respect to any offence which the defendant may have committed on or about 3rd April 1987. It is a fundamental principle that an amendment of an information will not be allowed where the consequence of allowing it would be to raise outside the limitation period an allegation of an offence not previously charged. This principle is discussed, and some of the authorities are reviewed, in Australasian Meat Industry Employees Union v. Sunland Enterprises Pty. Ltd. (Federal Court of Australia, Gray J., 8th December 1987, unreported). To allow an amendment out of time, for the purpose of raising a new offence, would be to do injustice to the defendant, within the meaning of s.21A(3) of the Crimes Act 1914.

29. In my view, to allow the necessary amendments in the present cases would be to allow the raising of new and separate offences. It would have been open to the prosecutor, when the proceedings were commenced, to charge, in addition to the offences alleged, dismissal of each of the five persons from his or her position as a regular daily employee, and alteration of the position of each of them to his or her prejudice, by deprivation of the status of regular daily employee. Acquittal of the offences which have actually been charged would have been no bar to the charging of those offences. New proceedings alleging those offences could not now be commenced, because of the time limit. For these reasons, no amendment should be allowed.

30. Questions were also raised in matters nos. Q11, Q12 and Q13 of 1987, with respect to whether the evidence showed that Robert Charles Dobson was an officer or delegate of the Union. Because of the view which I have taken on all of these matters, it is unnecessary for me to deal with those questions.

31. For the reasons which I have given, each of the fifteen informations before the Court must be dismissed.