Transport Workers' Union of Australia v De Vito [2000] FCA 139 (21 February 2000)

Last Updated: 22 February 2000

FEDERAL COURT OF AUSTRALIA

Transport Workers' Union of Australia v De Vito [2000] FCA 139

TRANSPORT WORKERS' UNION OF AUSTRALIA v C J DE VITO

VG 13 of 1998

RYAN J

MELBOURNE

21 FEBRUARY 2000

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VG 13 OF 1998

BETWEEN:	TRANSPORT WORKERS' UNION OF AUSTRALIA Applicant
AND:	C J DE VITO Respondent
JUDGE:	RYAN J
DATE OF ORDER:	21 FEBRUARY 2000
WHERE MADE:	MELBOURNE

MINUTES OF ORDER

THE COURT ORDERS:

1. That the application be dismissed.

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

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VG 13 OF 1998

BETWEEN:	TRANSPORT WORKERS' UNION OF AUSTRALIA Applicant
AND:	C J DE VITO Respondent

JUDGE:	RYAN J
DATE:	21 FEBRUARY 2000
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1 This is an application under s 298T of the Workplace Relations Act 1996 ("the Act") for imposition of a penalty on the respondent, Mr De Vito, pursuant to s 298U(a) of the Act. That paragraph provides that:

"In respect of conduct in contravention of this Part, the Court may, if the Court considers it appropriate in all the circumstances of the case, make one or more of the following orders:

(a) an order imposing on a person or industrial association whose conduct contravened or is contravening the provision in question a penalty of not more than:

(i) in the case of a body corporate - $10,000; or

(ii) in any other case - $2,000;"

2 The contravention of Part XA of the Act which is alleged against Mr De Vito is that he dismissed or injured in his employment a former employee, Mr George, for a reason prohibited by s 298K(1) which provides:

"An employer must not, for a prohibited reason, or for reasons that include a prohibited reason, do or threaten to do any of the following:

(a) dismiss an employee;

(b) injure an employee in his or her employment;

(c) alter the position of an employee to the employee's prejudice;

(d) refuse to employ another person;

(e) discriminate against another person in the terms or conditions on which the employer offers to employ the other person."

3 A list of "prohibited reasons" for the purposes of s 298K is to be found in s 298L(1) of the Act which, so far as is relevant, is in these terms:

"Conduct referred to in subsection 298K(1) or (2) is for a prohibited reason if it is carried out because the employee, independent contractor or other person concerned:

(a) is, has been, proposes to become or has at any time proposed to become an officer, delegate or member of an industrial association; or

...

(h) is entitled to the benefit of an industrial instrument or an order of an industrial body; or

...

(l) in the case of an employee, or an independent contractor, who is a member of an industrial association that is seeking better industrial conditions - is dissatisfied with his or her conditions; or

...

(n) as an officer or member of an industrial association, has done, or proposes to do, an act or thing for the purpose of furthering or protecting the industrial interests of the industrial association, being an act or thing that is:

(i) lawful; and

(ii) within the limits of an authority expressly conferred on the employee, independent contractor or other person by the industrial association under its rules."

4 The respondent has, since about 1989, carried on business as a cartage contractor under the name "C J De Vito". Initially, that business was conducted from premises at Hardy's Road, Waikerie, in South Australia. There is evidence, which has not been rebutted, in the form of a certified copy of the Transport Workers' Award 1983 ("the 1983 Award") as varied to 10 March 1998, that among the respondents to the 1983 Award is "G De Vito, Hardy's Road, Waikerie, 5330."

5 In about November 1995, the respondent entered into a contract with Carlton United Brewery Ltd ("CUB") to distribute CUB's products in Mildura and the surrounding areas. To facilitate the performance of that contract, Mr De Vito took a lease of premises incorporating bond store facilities on the Stuart Highway at Buronga in New South Wales. Mr De Vito also engaged, as manager of the beer distribution business, a Mr Driscoll who had formerly been employed by Carbone's Transport which had previously held the CUB distribution contract for the Mildura district.

6 The respondent also conducted part of his general carrying business from the premises at Buronga. Those aspects of the business were managed, not by Mr Driscoll, but by another employee of the respondent, Mr Carlo Calvi. In about November 1996, the headquarters of both the beer distribution and general carrying activities were transferred from Buronga to premises at Walnut Avenue, Mildura. At all relevant times, the respondent's workforce has been in the vicinity of 100 employees of whom about 60 are drivers. The respondent operates approximately 50 trucks which are made available to drivers and are regarded as their "personal" vehicles.

7 In about May 1997, CUB changed the terms on which payments were to be made to Mr De Vito for beer distributed by him. Those changes made it necessary for him to endeavour to recoup part of the transport costs from publicans and other consignees of CUB products. That, in turn, caused many of those customers to look to other forms of transport for deliveries to them. As a result, the beer distribution part of Mr De Vito's business declined by about half.

8 On 3 July 1997, Mr George and another employee of the respondent, Mr Fisher, became members of the applicant, the Transport Workers Union of Australia ("the TWU"). Mr George has deposed that he considered that the standard remuneration of 22 cents per kilometre plus a "travelling allowance" of $20 per trip which was then being paid by the respondent to his long distance drivers was less favourable than that prescribed by the Transport Workers (Long Distance Drivers) Award 1993 ("the 1993 Award") to which one of the respondents is "Devito C. Hardy's Road, Waikerie, 5330". There were also concerns about the allegedly insecure stowage of empty beer kegs on the respondent's semi-trailers. As a result of these matters, Mr George had invited Mr Fraser, a TWU organiser, to come to Mildura. Mr Fraser met Mr George and two other drivers employed at the Walnut Avenue depot on 3 July 1997 and convened a further meeting of the respondent's drivers to be held on 9 August 1997. At the meeting on 9 August 1997, Mr George outlined the provisions of the 1983 and 1993 awards and compared them with the terms and conditions of employment under which drivers employed by the respondent were then working. That comparison led Mr George and, presumably, others of the respondent's drivers to be dissatisfied with their existing conditions.

9 At the same meeting, a further six or so drivers were recruited into the TWU and Mr George was elected as the TWU delegate for the respondent's long distance drivers. Mr Calvi, the manager of the Walnut Avenue premises, resented what he regarded as the "secrecy" of that meeting. He expressed that resentment to Mr George on 14 August 1997, indicating that some drivers had placed him (George) on a pedestal and that others were accusing him of creating problems in the workforce. Mr Calvi's attitude apparently was that he had always been completely open with the employees under his supervision and that, if they had any issues to raise concerning the conditions of their employment, they should do so openly in his presence. At about this time, Mr Calvi indicated that he was not unhappy that some drivers had joined the Union but expressed the view that they should not try to hide their membership.

10 Later the same day, or on the next day, Mr Calvi again spoke to Mr George and reiterated his concern that disharmony was being created among the Mildura drivers. According to Mr George, Mr Calvi, at about this time, said words to the effect that "I'll hurt everyone in the hip pocket if they want to play games". Mr Calvi has denied saying anything of the sort to Mr George or anybody else.

11 On or about 19 August 1997, two organisers of the applicant ("the TWU") attended at the Walnut Avenue premises and asked to inspect records with a view to satisfying themselves that Mr De Vito was complying with his award obligations to employees. One of those organisers was Mr Fraser. At that time Mr Fraser obtained from the respondent an acknowledgment or commitment dated 20 August 1997 in the following terms:

"The Company agrees to pay all employees the current Award rate of pay consistent with the classification of vehicle driven including overtime and the correct rates of pay.

Employees engaged in Long Distance operations will be paid as per award for kilometre rate, minimum provisions for unloading and loading of vehicles and overnight allowance all Award Public Holidays, Sick pay and Rostered Days Off."

12 That document was signed by Mr Noonan, the Secretary of the Victorian Branch of the TWU, and Mr De Vito.

13 About a fortnight before the visit by the TWU organisers, the truck habitually driven by Mr George, had been exhibiting mechanical defects which he brought to the attention of Mr Calvi. Mr George had been engaged on 13 April 1997 to work as a permanent long distance driver in the general carrying part of Mr De Vito's business under the supervision of Mr Calvi. A decision was made on 21 August 1997 that Mr George's truck would have to be taken to Waikerie for major repairs. No substitute or alternative vehicle was made available for Mr George. On 21 August 1997, after the decision had been taken to carry out extensive repairs to Mr George's truck, Mr George telephoned the Mildura depot to find out what work had been allocated to him for that day. He was told by Mr Cornell, a foreman, that there was no work for him on that day. Later, on the same day, Mr Calvi telephoned Mr George and told him that his truck would be going to Waikerie for repairs. Mr George thereupon arranged to remove his personal belongings from the truck, which he did late on the same afternoon. At that time, he was given no indication of how long his truck would be off the road or whether he would be provided with alternative work in the meantime. In the result, the only work which he was offered while his truck was under repair was relief driving of other vehicles and some work in the respondent's yard. One offer of relief driving made on 25 August 1997 was for a trip to Melbourne carrying twenty-two pallets to "market". The second offer was of a trip to be made on 29 August with twenty pallets, again to Melbourne, to "market" and "Farm Fresh". It appears that Mr George did not accept either of those offers of relieving work.

14 Mr George did not seek out or offer to perform any alternative work for the respondent but visited the Mildura premises on one or two occasions to ask when the repairs to his truck would be completed.

15 Mr Calvi gave evidence that a safety issue had been raised by another driver, a Mr Bill Thompson, concerning a load of beer kegs which had shifted in transit. It was decided to overcome that problem by placing sheets of ply between the each layer or tier of kegs in a load. Mr Calvi denied that any concern about that issue had been expressed by Mr George or the TWU. He also claimed that he was aware that about five of the respondent's drivers became members of the TWU in August 1997 and that there were still TWU members among the respondent's workforce which caused him "no problem at all".

16 On 22 August 1997, Mr George again enquired of Mr Calvi how long his vehicle would be off the road and was referred to Mr De Vito. Mr George thereupon telephoned Mr De Vito who told him that he had no idea how long the repairs to his vehicle would take. According to Mr George, he then pointed out to Mr De Vito that the 1993 Award, which Mr De Vito had recently agreed to observe, contained a provision for guaranteed minimum earnings whereupon Mr De Vito replied, in effect, "you'd better get that from Mal Fraser". Mr De Vito also said that he was thinking of moving all the long distance trucks from Mildura to Waikerie. That prompted Mr George to ask whether that would mean that drivers would have to travel from Mildura to Waikerie to start trips to which Mr De Vito replied "If that's what they want to do". Mr George then asked whether he was being terminated, to which Mr De Vito responded that he was not terminating anybody. Mr George then said that he would keep in touch with the Mildura depot to learn of progress on his truck.

17 On the following Monday, 25 August, Mr George attended at the Mildura depot where he was told by Mr Calvi that there was no further information about his truck but that he should stay in touch. Also on 25 August 1997, Mr Fraser of the TWU sent to the respondent a facsimile letter in these terms:

"As per signed agreement dated 20th August 1997, casuals employed by your Company shall be paid as per the current Award rates of pay which are as follows;

Category	Normal Time	Time & Half	Double Time
Grade 3	$13.14	$18.07	$24.09
Grade 4	$13.51	$18.58	$24.77
Grade 6	$13.99	$19.24	$25.65

Permanent employees shall be paid as per the following;

Category	Normal Time	Time & Half	Double Time
Grade 3	$10.95	$16.43	$21.90
Grade 4	$11.26	$16.89	$22.52
Grade 6	$11.66	$17.49	$23.32

Permanent employees are entitled to four (4) weeks paid annual leave per year with 17.5% leave loading, all public holidays paid, five (5) days sick leave for the first year and eight days per year for the second and subsequent years which accumulates.

"Grade 3" vehicles are your small rigid vehicles (single axle) with a registered carrying capacity not exceeding 13.9 tonne gross.

"Grade 4" vehicles are your larger rigids (bogie axle) with a registered carrying capacity exceeding 13.9 tonne.

"Grade 6" vehicles are your articulated vehicles working within a 250 kilometres radius of your depots (Waikerie or Mildura).

Under the 1983 Transport Workers Award, which your Company is a named respondent, employees must be paid overtime after 7.6 hours on any single shift Monday to Friday, of which the first two (2) hours are at the time and one half rate, and any time in excess of 9.6 hours on any single shift must be paid at the double time rate for the appropriate classification.

A meal allowance of $8.95 must be paid to employees who work in excess of 9.6 hours on any single shift.

Any employee working on Saturday must be paid the first two (2) hours at the time and one half rate then the double time rate for the remainder of the shift.

All work performed on Sunday must be paid at the double time rate.

Under Clause 15, Time Books, of the 1983 Transport Workers Award, time and wage records must be kept at the depot, yard or garage where the employee works, therefore the time and wage records for employees employed at the Mildura complex must be kept at the Mildura office and be available for inspection.

Drivers employed to do long distance work is covered by the Transport Workers (Long Distance Drivers) Award 1993 to which your Company is a named respondent.

In relation to long distance drivers, the kilometre rate of 23.04 cents per kilometre must be paid on a GPO to GPO basis, $14.40 per load and $14.40 per unload, and $18.40 per night for each night the driver spends away from home.

Long distance drivers are also to be paid, in addition to all other amounts, $88.60 per calendar month for Rostered Days Off.

I hope this will give you a clear understanding of your Award obligations.

The Awards mentioned cover your operations at all depots (excluding NSW where a higher rate exists)."

18 On 27 August Mr George again went to the Mildura depot and was told that there was a possibility of work on another truck later that day and that he would be notified if it eventuated. However, according to Mr George, he heard nothing further from the respondent on either 27 or 28 August.

19 Mr George then, on 28 August, spoke to Mr Fraser of the TWU who undertook to "contact De Vito and try to sort the matter out".

20 On Friday, 29 August, Mr George again spoke to Mr Calvi who had no further information about the truck and could not hazard a prediction as to how long it would be off the road. After the intervening weekend, Mr George again approached Mr Calvi who had no more recent information about the truck and made no offer of work to Mr George. Mr George then spoke by telephone to Mr De Vito who said that he still had no idea when the truck would be ready. Then, according to Mr George, Mr De Vito said, in effect "Everything's alright, except for you causing trouble, ringing the drivers at Waikerie and stirring things up". Mr George has deposed that he denied that imputation saying that he knew only three or four Waikerie drivers and had not spoken to any of them. Mr George went on to depose that Mr De Vito threatened to report him to the South Australian Department of Transport.

21 Also on 29 August, Mr George conveyed to Mr Fraser the substance of his conversation with Mr De Vito and Mr Fraser sent to the respondent a further facsimile letter which referred to the earlier one of 25 August but, significantly, made no reference to the circumstances in which Mr George then found himself. The letter of 29 August was in these terms:

"Further to our facsimile dated 25th August 1997 we advise the following:

Under Clause 11 - GUARANTEED MINIMUM PAYMENT

(a) "A weekly employee shall be entitled to a guaranteed minimum fortnightly payment which shall be twice the weekly rate prescribed by clause 10A or 10B of this award for the classification under which the employee is working. Provided that, to become entitled to this payment, the employee shall be ready, willing and available to perform such duties covered by this award which the employer may from time to time require."

Further to this, if casual drivers are used, the driving rate increases by 10% taking it to .2534 per kilometre with the unload and load rate increasing to $17.28 per hour.

We wish to arrange a meeting in the near future with yourself to discuss an enterprise bargaining agreement."

22 Mr George again spoke to Mr Fraser on 5 September 1997. In the meantime, Mr George had again called at the Mildura depot but left without seeing Mr Calvi, who did not subsequently contact him. That led Mr George, on 5 September, to tell Mr Fraser that he could not go on indefinitely without work because he was having trouble making ends meet and, as he had not been terminated by the respondent, he could not get a separation certificate to qualify for unemployment benefits. Mr Fraser undertook to deal with the matter and thereupon the following letter was sent by facsimile from the TWU to the respondent:

"We remind you of your award obligations under Clause 11 - Guaranteed Minimum Payment, of the Transport Workers (Long Distance Drivers) Award 1993.

We note that our member, Mr Warren George, has been available for work for the last two weeks but has not received the minimum fortnightly gross of $886.00.

This was stated by facsimile to your Company on 29th August 1997, at 8.16 pm.

We request this oversight is fixed immediately with monies to be placed in Warren George's account by close of business today.

Failure to do so will place your Company in immediate dispute with the Transport Workers Union (Victorian Branch).

If you have any queries in relation to this matter please contact Mal Fraser on 018 533 389."

23 On the same day the respondent sent the following facsimile letter to the TWU marked for the attention of Mr Fraser:

"Mal, I refer to page 2 paragraph (a) of your fax, namely "A weekly employee ..... Provided that, to become entitled to this payment, the employee shall be ready, willing and available to perform such duties as covered by this award which the employer may from time to time rquire (sic) ....."

I say to you that this employee was not willing and in fact when told that the truck he normally drives was being recalled to Waikerie and due to extensive repairs would not be back in Mildura for some considerable time, he wanted his termination pay and we have been witing (sic) for him to put this in writing.

Note this conversation took place some two weeks ago and since then we have not sighted Mr George that is to say other than to abuse and harass my other employees and unless he desist I shall be forced to take the appropriate action to stop him legally.

Please discuss with Mr George 1. his request for termination and 2. that he does not approach my other employees."

24 The first paragraph of that letter was, it seems, an elliptical response to the opening reference in the TWU's letter to cl 11 of the 1993 Award which provided by sub-cl (a):

"A weekly employee shall be entitled to a guaranteed minimum fortnightly payment which shall be twice the weekly rate prescribed by clause 10A or 10B of this award for the classification under which the employee is working. Provided that, to become entitled to this payment, the employee shall be ready, willing and available to perform such duties covered by this award which the employer may from time to time require."

25 After receiving that facsimile message, Mr Fraser telephoned Mr George and asked whether he had asked the respondent for termination pay. When he was told that no such request had been made, Mr Fraser said that he would pursue the matter further over the weekend and report back to Mr George.

26 Mr Fraser then, on 8 September 1997, conveyed to Mr George his impression that the respondent would pay him one week's wages and an amount in respect of his accrued entitlement to annual leave. He also advised that acceptance of that offer would not preclude Mr George from bringing any further claim against Mr De Vito including a claim for underpayment of wages. Mr George, it appears, retrospectively or prospectively authorised Mr Fraser to accept an offer in the terms which Mr Fraser had outlined as the sum of $1,155.00 was paid into Mr George's wife's bank account and a pay slip was issued to Mr George which showed a "pay date" of 10 September 1997 and by a handwritten note was expressed to be "Pay for the Period from .... to 3 Sep. 97". It showed a gross payment for the month to date of $1,406.78 made up of "normal pay" of $886.16 and "holiday loading" of $520.62 from which a deduction of tax for the month to date of $251.78 had been made leaving a net figure for the month to date of $1,155.00.

Was Mr George dismissed?

27 Ordinarily, in applications invoking s 298K(1) of the Act or its predecessors such as s 5(1) of the Conciliation and Arbitration Act 1904, it is not disputed that the employer has dismissed the employee or taken the other action said to have constituted injury or prejudicial alteration of the employer's position. However, the evidentiary onus of establishing one or other of those matters, when it is put in issue, is on the applicant; see e.g. Heidt v Chrysler Australia Ltd (1976) 26 FLR 257 at 267-268.

28 In the present case, the intentions of the participants in the events surrounding the termination of Mr George's employment are far from clear and were probably distorted by one or more misunderstandings of what was being proposed on the other side. I am not persuaded that Mr De Vito, or anybody acting on his behalf, formed an intention to terminate Mr George's services when the latter's truck was sent for extensive repairs on 21 August. Any such intention at that time is negatived by the offers of relieving work, which I find were made, on 25 and 29 August. I also accept that Mr De Vito's answer to Mr George's question whether he (George) was being terminated, that he (De Vito) was "not terminating anybody", truthfully reflected De Vito's intention at the time.

29 Understandably, Mr George became increasingly frustrated by the time taken to repair his truck. That led him to enlist the assistance of Mr Fraser, who may have formed the impression from what he had been told by Mr George, that the respondent wished, or at least was not reluctant, to dispense with George's services. At all events, it is clear that on 5 September Mr George told Mr Fraser that he (George) was anxious to resolve the impasse and get a separation certificate to enable him to claim unemployment benefits. That led Mr Fraser to indicate to Mr De Vito that, upon termination, Mr George would be entitled to one week's pay and an amount representing accrued annual leave. It is not clear whether Mr Fraser told Mr De Vito that the week's pay was proposed to be in lieu of notice, but I am satisfied that Mr Fraser, in that conversation, said words to the effect that, if George were paid a week's wage plus an amount for accrued leave, that would be the end of the matter. I am also satisfied that Mr Fraser conveyed to Mr George that Mr De Vito would pay him one week's pay and his annual leave entitlements and that such an arrangement would not preclude Mr George from pursuing other claims such as for past underpayment of wages. Mr George authorised Mr Fraser to conclude an agreement on that basis, and it was pursuant to that agreement that the payment of $1,155.00 was made on 10 September 1997.

30 If a contract of employment is terminated by agreement between the employer and the employee, it is not brought to an end unilaterally by, or at the initiative of, the employer; see Marks v University of Melbourne (1997) FCA 150 (unreported, 24 February 1999) citing Victoria v Australian Teachers Union (1993) 49 IR 149.

31 In the circumstances of the present case, the termination of Mr George's employment was consensual and he was not "dismissed" in the sense used in s 298K(1). In reaching that conclusion, I have not disregarded the contention advanced on behalf of the TWU that an apparently consensual termination may reflect an employee's acceptance of an employer's repudiation of the contract, or may amount to a constructive termination at the initiative of the employer as exemplified in Mohazab v Dick Smith Electronics Pty Ltd (No 2) (1995) 62 IR 200. However, I have been unable to identify anything which was said or done by the respondent between 20 August and 10 September which could be regarded as a repudiation of Mr George's contract of employment or otherwise as a constructive termination of that contract at the initiative of the employer. On the contrary, Mr George was offered relieving work after 21 August and Mr De Vito, when expressly taxed about Mr George's employment status, truthfully replied that he was not terminating anybody. Nor can I find any other action imputed to Mr De Vito except, perhaps, his arguable failure to pay the guaranteed minimum rate prescribed by the 1993 Award, (for which Mr George had a remedy independently of an action for breach of his contract of employment) which could have amounted to a repudiation of that contract. For these reasons, the TWU has not established that Mr George was dismissed.

Was Mr George injured in his employment?

32 The "injury" to Mr George to which Counsel for the applicant pointed, was the failure to provide him with any work on or after 21 August 1997. As that "injury" resulted from the unroadworthy condition of Mr George's truck, which is undisputed, it cannot be attributed to any volition of the respondent. It was faintly contended on behalf of the TWU that Mr George's truck was kept out of action for an unwarrantably long time, but, having regard to the cost to the respondent of having the vehicle off the road for something like three weeks, I am unable to find that the respondent, in fact, adopted that stratagem.

33 It is also to be borne in mind that, while Mr George's truck was off the road, the respondent remained obliged to pay him the guaranteed minimum payment prescribed by cl 11 of the 1993 Award, which had expressly been brought to Mr De Vito's attention on 29 August. That obligation was conditional upon Mr George's readiness and willingness to perform duties covered by the Award which the employer might require. The findings made above that Mr George declined at least two offers of relieving work negatives a conclusion that he had the requisite readiness and willingness throughout the whole of the relevant period. Additionally, the presence of cl 11 of the 1993 Award precludes a finding that the respondent intentionally injured him in his employment by not requiring him to perform work between 21 August and 10 September.

Did the respondent engage in conduct for a "prohibited reason"?

34 Because of the conclusions reached above that it has not been established that the respondent dismissed Mr George or injured him in his employment, it is unnecessary to furnish an answer to this question as to which the respondent bore the onus of proving a negative answer. However, out of deference to the careful submissions of Counsel, I shall briefly indicate why I consider, assuming my earlier conclusions to be wrong, that the respondent's conduct was not actuated by a proscribed reason.

(a) Mr George as a delegate or member of the TWU.

35 It is true that Mr George became a member of the TWU on 3 July 1997 and this, presumably, became known to Mr Calvi on or shortly after the meeting of 9 July. By that time Mr Fisher and some six or so of the respondent's other drivers had jointed the TWU. I accept that Mr Calvi truthfully indicated that he was not unhappy about that acquisition of union membership. More significantly, there is no evidence that Mr Hynes, the Mildura foreman, or any of the other drivers who became members of the TWU at about the same time as Mr George, were dismissed or discriminated against in their employment. I also accept Mr Calvi's evidence that the continuing presence of TWU members among the respondent's workforce since August 1997 caused him "no problem at all". Moreover, I accept the evidence of Mr De Vito, which was not challenged, that:

"It is not part of my employment policy to either encourage or discourage employees belonging to a Union. I gave no instructions to Calvi or any other person to treat any employee, who was a Union member, differently to any other employees."

36 There is no evidence that Mr George's election on 9 August 1997 as a delegate for the TWU was ever communicated to Mr De Vito, Mr Calvi or anybody else with a managerial role in the respondent's business. It is significant, in this context, that there was no attempt by the TWU to comply with cl 35 of the 1993 Award which provided:

"An employee appointed as a union delegate in a depot, yard or garage shall, upon notification thereof to the employer by the Branch or Sub-Branch Secretary of the union be recognised as the accredited representative of the union and shall be allowed the necessary time during working hours to interview the employer or representative on matters affecting employees in the depot, yard or garage."

37 Finally in this respect, there is no evidence that Mr Hynes, who was also elected or appointed a TWU delegate at the meeting of 9 August, suffered any detriment in his employment.

(b) Entitlement to the benefit of the 1983 Award and the 1993 Award.

38 The availability of this reason as having actuated the respondent in contravention of s 298L(1)(h) is precluded by the principle enunciated in Heidt v Chrysler Australia Ltd (supra) at 269:

"Having regard to the object of s.5 of the Act being to protect organizations and having regard to the legal doctrines or principles referred to above, it is difficult to see how an organization can be disadvantaged by an employer who, in dismissing an employee, is actuated by the reason alleged in s.5(1)(d), unless the claim being made by the organization is for the benefit of members only of the organization or unless the award, if any, likewise is so limited. The provisions of s.5(1)(b) may be relevant to those circumstances. The functions of the organization are not thereby frustrated nor does the employer thereby gain immunity from action taken by the organization. In the present case, there is in existence an award binding on the defendant and binding the defendant with respect to all of its employees coming within the scope of the award whether members of the organization or not."

39 On the assumption (which I make in the absence of evidence to the contrary) that each of the 1983 Award and the 1993 Award was binding at all relevant times on the respondent, it was binding in respect of all its employees whether members of the TWU or not. The respondent would equally have been bound by both awards in respect of any employee engaged in place of Mr George.

40 Even if the principle just identified were not available, I would have been satisfied that the respondent was not actuated by the reason proscribed by s 298(l)(1)(h). That is because the evidence suggests that, until shortly before 20 August 1997, the respondent was not aware that he was a respondent to either award. On that date, he signed a written agreement to apply, presumably, the 1993 Award and there is no evidence that any disadvantage was thereafter visited on any of the respondent's other drivers, all of whom, as I have just pointed out, were entitled to exactly the same benefits under that Award as Mr George.

(c) Mr George, as a member of the TWU that was seeking better industrial conditions, was dissatisfied with his conditions.

41 The applicant's reliance on this reason proscribed by s 298L(1)(l) of the Act is also affected by the principle which Northrop J in Heidt v Chrysler Australia Ltd (supra) identified as applicable to the counterpart s 5(1)(d) of the Conciliation and Arbitration Act. In that case, his Honour said, at 269:

"One of the chief objectives of any organization of employees is to seek better industrial conditions for its members. The words "an organization which is seeking better industrial conditions" contained in s.5(1)(d) do not refer to this general objective but must refer to identified industrial conditions which the organization is seeking to better. To come within this paragraph the employee member must be dissatisfied with the same industrial conditions. The paragraph takes as its subject matter the identified industrial conditions which then form the link between the seeking by the organization to better those conditions and the dissatisfaction by the employee member with those conditions as they then exist."

42 There is no evidence that, between 20 August and 8 September, the TWU was seeking better industrial conditions, either generally or for employees of the respondent, in a respect in which Mr George was dissatisfied with his conditions. The only finding which the evidence permits is that the TWU had been seeking to obtain an admission by Mr De Vito that he was bound by either or both of the 1983 and 1993 Awards and his according the relevant Award wages and conditions to his employees. The TWU's concerns in that regard were met when Mr De Vito signed the agreement of 20 August.

43 Assuming in the applicant's favour, that it had prompted the expression of concern by Mr Thompson over the safety issue involving shifting beer kegs, that issue was resolved as soon as it was raised. It does not seem to have given rise to any dissatisfaction by Mr George and I am satisfied that it had nothing to do with any treatment accorded him by the respondent between 20 August and 8 September 1997.

44 It is true that the TWU's letter to the respondent of 29 August 1997 foreshadowed a meeting in the near future "to discuss an enterprise bargaining agreement". However, there is no evidence as to what better industrial conditions the TWU was seeking to achieve by any such enterprise bargaining agreement. Necessarily, it follows that no finding can be made of any link between the proposal for an enterprise bargaining agreement and any dissatisfaction by Mr George with his existing conditions of employment.

Conclusion

45 It will be apparent from the reasons outlined above that I have not been persuaded that the respondent dismissed Mr George or injured him in his employment, and that I am satisfied, in any event, that any treatment of Mr George by the respondent was not actuated, even in part, by any of the reasons proscribed by s 298L(1) to which the applicant has pointed. It is therefore unnecessary to consider the question of compensation which was reserved until publication of these reasons. In the result, the application must be dismissed.

I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Ryan.

Associate:

Dated: 21 February 2000

Counsel for the Applicant:	Mr S Moore
Solicitor for the Applicant:	Anthony Forsyth
Counsel for the Respondent:	Mr A Lindeman
Solicitor for the Respondent:	Stuart Andrew
Date of Hearing:	9 and 10 December 1998
Date of Judgment:	21 February 2000