AWU v John Holland Pty Ltd [2001] FCA 93 (20 February 2001)

Last Updated: 20 February 2001

FEDERAL COURT OF AUSTRALIA

AWU v John Holland Pty Ltd [2001] FCA 93

INDUSTRIAL LAW - termination of employment - whether employment terminated for prohibited reason - whether prohibited reason operative reason for termination of employment - whether employment terminated because applicant member of Australian Workers' Union, or because applicant proposed delegate of Australian Workers' Union - whether employer followed procedures regarding recruitment of labour - union pressure to terminate employment - industrial action at respondent's work sites - respondent incurring financial losses as a result of strikes.

Workplace Relations Act 1996 (Cth): ss 298K

Conciliation and Arbitration Act 1904 (Cth): s 5(1)(aa)

Wood (on behalf of the Industrial Relations Bureau) v Lord Mayor, Councillors and Citizens of the City of Melbourne (1979) 41 FLR 1 applied

Maritime Union of Australia v Geraldton Port Authority [1999] FCA 899; (1999) 93 FCR 34 applied

Australian Workers' Union & STEVEN JOHN McGEE v JOHN HOLLAND PTY LTD

V 758 of 2000

GOLDBERG J

20 FEBRUARY 2001

MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 758 of 2000

BETWEEN:	AUSTRALIAN WORKERS' UNION First Applicant STEVEN JOHN McGEE Second Applicant
AND:	JOHN HOLLAND PTY LTD Respondent
JUDGE:	GOLDBERG J
DATE OF ORDER:	20 FEBRUARY 2001
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1. 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	V 758 of 2000

BETWEEN:	AUSTRALIAN WORKERS' UNION First Applicant STEVEN JOHN McGEE Second Applicant
AND:	JOHN HOLLAND PTY LTD Respondent

JUDGE:	GOLDBERG J
DATE:	20 FEBRUARY 2001
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1 The applicants claim that the respondent terminated the employment of the second applicant ("Mr McGee") with the respondent because he was a member of the first applicant, the Australian Workers' Union ("the AWU"), and because it was proposed that he be a delegate of the AWU. The applicants claim that such termination was for a prohibited reason and constituted a contravention of s 298K of the Workplace Relations Act 1996 (Cth) ("the Act"). They seek orders that the respondent reinstate Mr McGee in his employment and pay him compensation and they also seek the imposition of a penalty and consequential relief.

2 Section 298K relevantly provides:

"(1) 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;

..."

Section 298L relevantly provides:

"(1) 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

..."

Section 298V relevantly provides:

"(1) If:

(a) in an application under this Division relating to a person's or an industrial association's conduct, it is alleged that the conduct was, or is being, carried out for a particular reason or with a particular intent; and

(b) for the person or industrial association to carry out the conduct for that reason or with that intent would constitute a contravention of this Part;

it is presumed, in proceedings under this Division arising from the application, that the conduct was, or is being, carried out for that reason or with that intent, unless the person or industrial association proves otherwise."

3 The respondent terminated Mr McGee's employment on 3 October 2000, but the events giving rise to the issues canvassed in the proceeding commenced some weeks earlier. In August 2000 the respondent was awarded a contract relating to the upgrading of the Laverton section of the Princes Freeway from Altona to Werribee which involves the design and management of the construction of the road works and bridge works. The project commenced operations in late August and is scheduled to finish in May 2002. In early October 2000 the majority of the work being undertaken on the project was of a setting up nature. There were only nine staff and three direct employees engaged on the project, and it was not anticipated at that time that more road construction workers would be engaged until November 2000.

4 The recruitment of labour by the respondent is governed by the John Holland Group Procedures ("the Procedures"), the John Holland Pty Ltd and CFMEU Building and Construction Industry Collective Bargaining Agreement 1999-2002 ("the CFMEU EBA") and the John Holland Construction & Engineering, Southern Division - AWU Enterprise Agreement 1997-1999) ("the AWU EBA") which is substantially in the same form as the CFMEU EBA. Appendix E to the CFMEU EBA provides:

"Preference of employment shall be extended to previous employees who had been made redundant by the company subject to skills required (possession of these skills to be as generally defined by Construction Worker classifications) having regard to current and future company needs and competency standards as defined by the Australian National Training authority or similar approved body having reference to the construction industry.

The Consultative Committee shall wherever practical be notified (by personal discussion, or telephone discussion, or facsimile, or by meeting) prior to employment of new employees regarding the required skills, the reason for the timing of the proposed employment."

Clause 7.5 of the AWU EBA is substantially in the same form.

5 Clause 14.2 of the Procedures provides:

"Employment will be strictly in accordance with the relevant Awards and/or Agreements which apply to that area. The Project Manager has no authority to vary the conditions of these Awards/Agreements."

6 Mr McGee, a financial member of the AWU prior to October 2000, had been unemployed for about eighteen months. He had informed AWU organisers that he was looking for employment. On 7 September 2000 there was a meeting between representatives of the AWU and the respondent as part of a process of negotiating a state-wide agreement. The respondent was represented by Mr Rod Watson, the respondent's Construction Manager Engineering until 12 September 2000, Mr Leonard Caccioppoli, the respondent's General Superintendent, and Mr Peter Wilkinson, the respondent's Project Manager on the Laverton site. Mr Craig Winter, an AWU Industrial Officer, said that in the course of the meeting he raised the possibility of the respondent providing employment to Mr McGee at the Laverton site where he would be able to be the AWU delegate. The respondent's representatives said they would consider the matter. There was an issue between the parties as to whether Mr McGee's name was mentioned in this meeting or whether the AWU representatives raised the matter of an AWU member being employed, without naming him. There was also an issue whether the AWU representatives said that they wanted an AWU member employed to be the AWU delegate on the site. These matters are of little consequence as it was not in issue that the AWU wanted an AWU member employed on site. I accept the evidence of the AWU's witnesses that Mr McGee's name was mentioned at this meeting. I also accept that the AWU representatives said that he would be, or would be able to be, the AWU delegate on the site. Mr Wilkinson, who participated in the meeting, said that the AWU representatives said that they wanted a working shop steward.

7 On 13 September, a telephone conversation occurred between Mr Caccioppoli and Mr Alan Rix, an AWU organiser who had been at the meeting on 7 September. There was an issue as to who mentioned Mr McGee's name first, but that issue is of no consequence. Mr Caccioppoli said that Mr Rix should arrange for Mr McGee to attend an interview with Mr Caccioppoli on 21 September.

8 The meeting was re-arranged for 20 September and, on that day, Mr McGee met with Mr Caccioppoli at the Laverton site. They discussed Mr McGee's experience and qualifications and Mr Caccioppoli told Mr McGee to report for work at 7.00am on Thursday 28 September. On the same day, Mr Caccioppoli told Mr Newton, the respondent's Construction Manager Building, that he had interviewed a person who had been presented to him by the AWU and that he was under pressure from the AWU, but he did not identify that person by name.

9 Mr McGee attended the site on 28 September and met the site foreman, Mr Gerard Toohey. Mr Caccioppoli was not at the site, but Mr McGee spoke to him on the telephone, and Mr Caccioppoli told him that Mr Toohey would arrange a medical examination for him. Mr McGee attended the medical examination. Mr McGee telephoned Mr Toohey and told him that he had passed the medical examination, and Mr Toohey told him that he would see him the next morning.

10 Mr McGee arrived at the site at 7.00am on Friday 29 September and Mr Toohey told him that he should wait for Mr Caccioppoli to arrive. Mr McGee was wearing a jacket with the AWU insignia on it. He went into the crib hut to make a cup of tea and observed a person, who he later learned was Mr Martin Murphy, the shop steward for the Construction Forestry Mining and Energy Union ("the CFMEU"), staring at his jacket. Mr Murphy started to use his mobile telephone and left the crib hut. Mr Caccioppoli arrived at the site and told Mr McGee that he would fill out all the forms and take him through an induction procedure.

11 Mr McGee left the crib hut and a short time later returned to the crib hut. He saw Mr Murphy speaking on the telephone and saying words to the effect "they've told me he is working here" and "he's wearing an AWU shirt". The following conversation then ensued:

"Mr McGee: Have you got a problem with me wearing an AWU shirt?

Mr Murphy: Are you the AWU delegate?

Mr McGee: As a matter of fact I am.

Mr Murphy: Well, you're not welcome here.

Mr McGee: Why is that?

Mr Murphy: Happy hunting because nobody will be coming near you.

Mr McGee: What does that mean?

Mr Murphy: You are not welcome here."

The conversation ended and Mr McGee left the crib hut, telephoned Mr Rix and told him what had occurred.

12 Shortly before Mr Caccioppoli inducted Mr McGee, Mr Murphy asked who Mr McGee was and what he was doing on site. Mr Caccioppoli told him that he was a new starter and Mr Murphy responded to the effect:

"There will be no fucking AWU on this fucking site, we'll show you."

13 Mr Caccioppoli then took Mr McGee through the induction procedure, gave him a certification sticker to put on his helmet and told him to report to Mr Toohey for work. At this stage the workers on the site had stopped work. Mr McGee reported to Mr Toohey and for approximately an hour or so carried out work at his direction.

14 Mr Newton first heard of Mr McGee by name at approximately 6.55am on Friday 29 September 2000 when Mr Joe Gregory, a CFMEU shop steward and chairman of the Consultative Committee telephoned him at his home and said words to the effect "I believe you've put someone on the Laverton project". Mr Gregory said "You've completely failed to take care of our guys in the EBA". When Mr Newton arrived at his office he spoke to Mr Wilkinson who told him that the workers had stopped work, and that there was an issue about an AWU person being on site at Laverton and there being a breach of the EBA.

15 Mr Newton arranged a meeting with the CFMEU at 10.00am. At that meeting, the respondent was represented by Messrs Wilkinson, Caccioppoli and Newton. Mr Cummins, an officer of the CFMEU, said that in his view John Holland had breached the EBA procedures. Mr Newton said that he did not believe that John Holland had done so because they had not employed anybody. Mr Cummins then said words to the effect:

"He's on the fucking site. If you haven't employed him get him off the site."

Mr Newton said that he was working through those issues currently. The CFMEU representatives also said that they were not happy with Mr McGee in particular. They raised issues about his character, saying that he was a thug and had engaged in workcover fraud. They said that they would not tolerate having a thug of this type on the site, that they would not leave their members on site while he was there, and that he had to be taken off site.

16 Mr Newton asked the CFMEU representatives to get their members back to work and said that John Holland was prepared to follow the correct EBA procedures regarding dispute settlement. Mr Cummins said words to the effect:

"Get McGee off the site and we'll consider it".

Mr Newton believed that the respondent had not followed the procedures, and following the meeting he decided to remove Mr McGee from the site. Mr Caccioppoli told Mr Toohey of this decision and Mr Wilkinson told Mr Rix.

17 At approximately noon, Mr Toohey received a telephone call and told Mr McGee that he had been told by Mr Caccioppoli to send him home on full pay "while they get this problem sorted out". Mr McGee left the site and subsequently returned with Mr Rix and another AWU organiser. At this time, the workers on site had commenced working again. According to Mr McGee, Mr Caccioppoli said to him:

"We were hoping that you would stay away while we sorted this problem out. You're still on full pay and got your job and management is still sticking with the objective of keeping you on the job."

Mr Caccioppoli put the conversation in different terms. According to Mr Caccioppoli, he said:

"I asked you to stay off the site until Monday and that we would contact you then and that you would be paid up to that point."

Mr Caccioppoli denied that he told Mr McGee "management is still sticking with the objective of keeping you on the job". I accept Mr McGee's version of the conversation, it is consistent with the events as they were unfolding. Mr Caccioppoli told Mr McGee that he wanted him to stay home on Monday (2 October) and they would telephone him after they had sorted out the problems. Mr Rix said that Mr McGee would be back on site on Monday morning ready to work.

18 On Monday 2 October 2000, Mr McGee arrived at the site at 7.00am. No work was occurring on site. Mr McGee walked into the crib hut and saw Mr Ralph Edwards, a CFMEU organiser. Mr Edwards and the four workers in the crib hut then left. Mr McGee remained on site for approximately two hours.

19 The medical report which had been obtained in respect of Mr McGee did not contain sufficient information in accordance with the respondent's Procedures, and Mr Newton arranged for Mr McGee to have a second medical examination on 2 October 2000. Mr Caccioppoli told Mr McGee that he had to attend another medical examination as the earlier examination had not been conducted properly. Mr McGee attended the medical examination at 12.30pm. The examination was satisfactory and Mr McGee was told by the doctor that he had passed the examination. He returned to the site at approximately 2.30pm and told Mr Caccioppoli that he had passed the medical examination and was ready for work. Mr Caccioppoli told him "well we still haven't got this other problem sorted out". No work was being carried on at the site at this time. After 3.30pm Mr McGee asked Mr Caccioppoli what was going to happen and Mr Caccioppoli told him that "we don't know what management is doing at Abbotsford. They are still in a meeting with the CFMEU". Mr McGee then left the site.

20 On the weekend of 30 September/1 October and on Monday 2 October, no work was being undertaken on any of the respondent's sites at Woodend, Werribee, Royal Melbourne Institute of Technology, or the Laverton section of the Princes Freeway. During the afternoon on Monday 2 October, Mr Newton had a further meeting at the CFMEU's offices with its representatives and asked them to get their members to return to work. The CFMEU representatives rejected this request on the basis that Mr McGee was still on site at Laverton.

21 Mr Newton estimated that the costs associated with the shut down of the respondent's four sites by the AWU were in the order of $50,000 per day for wages, and that further indirect costs would be incurred from having to make up lost time at each of the sites.

22 Later on Monday afternoon, Mr Newton met with Mr Wilkinson, Mr Bennetto, a Director of the respondent and its General Manager, Southern Region, and Mr Caccioppoli to discuss the matter further. Mr Newton concluded that Mr McGee had not been employed in accordance with the respondent's Procedures, the CFMEU EBA, or the AWU EBA. Mr Newton held the view that if the respondent's Procedures and the EBA procedures had been followed, other persons would have been preferred in employment to Mr McGee. Mr Newton said that because of the failure to comply with the Procedures and the EBAs and the CFMEU's refusal to order its members to return to work whilst Mr McGee was on site, he decided that Mr McGee had not been engaged by the respondent and had to leave the site at Laverton. At that time, he held the view that Mr McGee had not been employed by the respondent. Mr Bennetto had overall responsibility for all building and engineering activities relating to the respondent's businesses in Victoria, Tasmania and South Australia. Mr Bennetto held the view that Mr McGee must not continue on the Laverton site and he received advice that Mr McGee had to be removed from the site in order to get the employees back to work.

23 Mr Newton decided that the respondent should make an ex gratia payment of $750 to Mr McGee because of what he considered the confusion and inconvenience which had been caused to Mr McGee. Mr Bennetto authorised the ex gratia payment. Later that day, Mr Newton told CFMEU representatives of his decision that Mr McGee should leave the site.

24 After Mr Newton decided that Mr McGee should leave the Laverton site, he drafted a letter to Mr McGee which was given to Mr McGee by Mr Caccioppoli the next day. Mr McGee returned to the site the following morning, 3 October 2000 at 7.00am. Mr Caccioppoli handed him a letter on the respondent's letterhead which was in the following terms:

"In relation to the situation that has arisen over the last few days, we advise that you have not been employed by John Holland P/L.

The people you have been dealing with are not authorised to offer you employment and accordingly you have not been engaged.

We have now received your application and it will be considered along with other applicants.

In respect of your presence on site, we will make an exgratia payment of $750 to you. Please make arrangements to pick up this money from our office at 70 Trenerry Crescent, Abbotsford.

You are requested to remove your possessions and leave the site forthwith."

The letter was signed by Mr Newton for the respondent. A short time later Mr McGee and Mr Rix left the site. Mr McGee received his ex gratia payment on the same day.

25 Late on Tuesday 3 October 2000, after further negotiations with CFMEU representatives in relation to payment for lost time, the members of the CFMEU returned to work on all the respondent's work sites.

26 On Wednesday 4 October, Mr Winter, an industrial officer with the AWU, telephoned Mr Wilkinson to discuss Mr McGee's termination. There is a dispute as to what was said. Mr Winter said that he asked Mr Wilkinson why Mr McGee's employment had been terminated. Mr Wilkinson told Mr Winter that he had made an error of judgment in employing Mr McGee and this caused some trouble with his superiors. Mr Wilkinson told Mr Winter that following Mr McGee's employment with the respondent, the CFMEU had also placed bans on other projects being undertaken by the respondent, and that the reason for this was that the respondent had breached an undertaking in relation to employment with the CFMEU. Mr Wilkinson told Mr Winter that by employing Mr McGee he had breached not only undertakings given to the CFMEU but also policies of John Holland.

27 Mr Wilkinson said that when Mr Winter telephoned him he said that the CFMEU did not want Mr McGee on the project and that was why the CFMEU members were in the sheds. Mr Winter said that Mr McGee was put off the site because the CFMEU did not want him on the site, and that the respondent responded only to pressure from the CFMEU. Mr Wilkinson said that this was not correct. Mr Wilkinson then said there had been an EBA issue, that the respondent had breached an EBA undertaking, and that there had been a breach of the respondent's internal procedures. Mr Winter replied that this was an issue with the CFMEU which did not affect the AWU. In cross-examination, Mr Wilkinson recalled the discussion in the terms of Mr Winter's evidence. The dispute between Mr Winter and Mr Wilkinson falls within a narrow compass. I accept Mr Winter's version of the discussion; he was not cross-examined. Mr Wilkinson's version involves a denial of the respondent responding to pressure from the CFMEU, who did not want Mr McGee on site. However, it is apparent from other evidence to which I have already referred that the CFMEU did not want Mr McGee on site, and that the respondent had sought a solution to the problem of the CFMEU members on its sites stopping work.

28 Mr Newton, who signed the letter which was given to Mr McGee, is the person who made the decision to terminate Mr McGee's employment. Initially, the respondent had taken the position that Mr Caccioppoli did not have any authority to employ Mr McGee and that Mr McGee had never been properly employed by the respondent. In its defence, and at trial, the respondent did not maintain that position but, rather, took the position that, although Mr Newton believed at the time he wrote the letter on 3 October 2000 that Mr McGee had not been offered employment by any employee of the respondent authorised to make an offer of employment, and that Mr McGee had not been employed by the respondent because there had been non-compliance with the Procedures and the CFMEU EBA and the AWU EBA, the respondent acknowledged that Mr McGee had been employed by it and that his employment had been terminated.

29 The respondent contended that it had terminated Mr McGee's employment because:

* Mr McGee's employment was in breach of the CFMEU EBA, the AWU EBA and the Procedures;

* the CFMEU was engaging in industrial action at four of the respondent's work sites, which was imposing significant financial losses on the respondent, and the respondent believed that by terminating Mr McGee's employment it would be able to avoid continuing financial losses.

30 Mr Newton gave the following evidence:

"At all times during this dispute I have been motivated by a desire to get our workforce over 4 sites back to work. That was not possible while Mr McGee remained on site at the Project. There would have been the same reaction from the CFMEU regardless of whether the employee (in this case Mr McGee) sought to be put on was a member of the AWU, no Union or the CFMEU itself.

My decision to advise Mr McGee of his non-employment with John Holland was necessitated by the fact that there had been a failure to comply with the Procedures and the EBAs.

Any suggestion that Mr McGee's Union membership was a factor in my decision making is wrong."

31 Mr Bennetto, who participated in the discussion on 2 October in which Mr Newton decided Mr McGee should leave the site, said that at all times he was motivated by the fact that the employees were sitting in the sheds and no work was being undertaken at the respondent's work sites, which was causing significant daily losses and putting the respondent at risk of having to pay substantial daily liquidated costs at the Laverton, Woodend and Werribee sites. Mr Bennetto said it was these commercial imperatives which informed his opinion about permanently removing Mr McGee from the site, although, in addition, the fact that the respondent had not followed the EBA procedures was a major issue bearing on his thinking. Mr Bennetto disavowed that he was motivated by the fact that Mr McGee was a member of the AWU. I accept Mr Bennetto's evidence.

32 Although Mr Newton said that he was not aware when Mr McGee started working on the site that he intended to become an AWU delegate, he understood that the AWU had requested that an AWU member be placed on the site and he accepted that there was a reason, other than having a road construction worker on site, for having an AWU member on site. I am satisfied that Mr Newton understood that the AWU member who was to be employed, who Mr Newton discovered on the morning of Friday 29 September 2000 was Mr McGee, was to have an AWU role on site.

33 In support of its submission that it did not terminate Mr McGee's employment because he was a member of the AWU, or was proposed to be an AWU delegate, the respondent led evidence that members of the AWU, as well as members of the CFMEU, were represented in its workforce generally and were working on the Laverton site. The respondent also relied on its employment of two AWU members subsequent to the termination of Mr McGee's employment. However, one of those employees has resigned from the AWU and the other employee told Mr Rix he intended to resign. The evidence as to those employees does not assist me in determining the respondent's policy at the time it terminated Mr McGee's employment.

34 Mr Rix agreed that AWU members who were employees of subcontractors were working on the Laverton site, but said that the respondent did not have any employees on the site who were AWU members. Mr Fenby, an AWU organiser, said that some of the respondent's employees on another site, who were members of the AWU, had resigned in 1999 from the AWU and joined the CFMEU because they had been told that the site was a CFMEU site. That evidence is of peripheral relevance and of no assistance in relation to the issues presently before me. I am satisfied that at the time Mr McGee's employment was terminated, the respondent did not have a general policy or practice of not employing, or refusing to employ, persons who were members of the AWU.

35 There is no doubt that the event, or circumstance, which commenced the train of events which resulted in the termination of Mr McGee's employment, was the CFMEU's awareness that the respondent had employed a member of the AWU, and the CFMEU's determination that a member of the AWU should not be employed on the site. Although the CFMEU representatives raised with the respondent reasons personal to Mr McGee why they did not want him on the site, I am satisfied that this was only part of the reason why the CFMEU did not want Mr McGee employed on the site. So much is clear from the conversation Mr Caccioppoli had with Mr Murphy, the site delegate for the CFMEU, shortly before he commenced the induction with Mr McGee on the morning of Friday 29 September 2000. I have already (par 12) referred to Mr Caccioppoli's evidence that Mr Murphy asked him who Mr McGee was and what he was doing on site. When Mr Caccioppoli responded that Mr McGee was a new staff member at John Holland, Mr Murphy said words to the effect of "there will be no fucking AWU on this fucking site, we'll show you".

36 I am satisfied that the CFMEU wanted Mr McGee's employment terminated for two reasons - because of his membership of the AWU, and because of certain matters personal to Mr McGee. The proposal that Mr McGee be the AWU delegate on the site did not play any part in the CFMEU's determination that Mr McGee be removed from the site. The respondent led evidence from Mr Newton that the AWU and the CFMEU got on well at the respondent's engineering sites and that he was unaware of any friction between them. Nevertheless, I am satisfied that the evidence to which I have referred shows that the CFMEU wanted Mr McGee's employment terminated for the two reasons to which I have referred.

37 However, that conclusion does not resolve or determine the answer to the question - what was the reason why the respondent terminated Mr McGee's employment? The AWU's reason or reasons for wanting Mr McGee's employment terminated did not automatically become the respondent's reasons for terminating his employment, and it is necessary to determine the respondent's reasons for terminating Mr McGee's employment. The answer to that question is to be found substantially by reference to the evidence of Mr Newton as he was the person who made the decision to terminate Mr McGee's employment.

38 Mr Newton advanced two reasons - the respondent's failure to comply with its Procedures and the EBAs, and the desire to get the workers on four of the respondent's work sites back to work. The applicant submitted that Mr Newton's evidence was unreliable, and that I should not accept his denial that Mr McGee's membership of the AWU or his status as a proposed delegate had anything to do with his decision to terminate Mr McGee's employment. Although there were some inconsistencies in Mr Newton's evidence, I am satisfied that he was a truthful witness, in particular in relation to the reasons why he terminated Mr McGee's employment, and I accept his evidence.

39 At the time Mr Newton terminated Mr McGee's employment, he believed that Mr McGee had not been properly employed because he had not been offered employment by persons authorised to offer him employment. Mr Newton's letter of 3 October 2000 proceeded on the basis that Mr McGee had not been employed, rather than that his employment was being terminated. I am satisfied that Mr Newton genuinely held that belief, although it was an erroneous belief, and that the holding of the belief, and the expression of it, was not a contrived excuse for getting Mr McGee off site because he was a member of the AWU. Although one may question whether a failure to comply with the respondent's Procedures and the EBAs in the manner in which persons are offered employment can legitimately give rise to the termination of employment, or the withdrawal of an offer of employment entered into, or offered in breach of the Procedures or the EBAs, I am satisfied that the perceived failure to comply with the Procedures and the EBAs was one of the reasons why Mr Newton wanted Mr McGee to leave the site at Laverton and not continue with any employment with the respondent. The other reason, and the major reason which motivated Mr Newton, was the fact that he wanted to get the respondent's employees on its four work sites back to work as soon as possible.

40 The applicant also submitted that I should not accept Mr Newton's evidence as to the requirement that any proposal to employ a new worker should be put before the Consultative Committee. Although there were inconsistencies in Mr Newton's evidence in relation to the significance and role of the Consultative Committee on employment issues, I accept Mr Newton's evidence that he believed that because Mr McGee was employed without the agreement of the Consultative Committee, there was a breach of the CFMEU EBA. I accept his evidence that it was his practice to go to the Consultative Committee when he was seeking to employ someone, and that, in recent times, the Consultative Committee had made numerous complaints to the respondent about it breaching the terms and spirit of the requirements contained in the EBAs. I also accept his evidence that each time it had been alleged that the respondent had breached the EBA processes, there had been threats of industrial action and that the respondent was particularly sensitive to accusations that it had breached the EBAs.

41 Even if it be said that Mr Newton's evidence that there was a failure to go to the Consultative Committee with Mr McGee's proposed employment, that there was a breach of the respondent's Procedures and a breach of the EBAs, and that Mr McGee had been employed by someone not authorised by the respondent to offer him employment was contrived, that contrivance did not occur as a cover-up for the reason that he wanted to terminate Mr McGee's employment because he was a member of the AWU, or because he was proposed as a delegate of the AWU. It occurred because he wanted to resolve the serious problem which had arisen because the employees of the respondent who were members of the CFMEU had stopped work on its four work sites. The major reason why Mr Newton decided to remove Mr McGee from the Laverton site, and thereby terminate his employment, was to solve this problem. This can be seen from the following exchange in cross-examination:

"Well, shortly after Mr Gregory rings you, you know you've got a problem. Correct?---Yes.

When you speak to Mr Wilkinson and he tells you that the employees are in the sheds, you know it's a significant problem?--It's getting that way, yes.

Then when they go out at Woodend you know it's a really significant problem?---Correct.

In fact this whole issue was a very, very big significant issue for John Holland and for you. Correct?---Indeed.

So all stops were pulled out to find some sort of resolution to it?---There is a large cost involved in people sitting in the shed, so the urgency about it was very much as a John Holland person of responsibility was to find a solution to it as quickly as possible.

Yes. Then you had a meeting, along with Mr Wilkinson and Mr Caccioppoli, with some people from the CFMEU. Correct?---Yes.

That was Mr Cummins and Mr Gregory. It [sic] think that was basically who was in attendance for CFMEU?---Yes.

They raised the question of EBA procedures?---Yes.

Later on or after than they raised the question of it being Steve McGee?---Yes."

This exchange demonstrates that it was the stoppages on the work sites which made Mr Newton decide that Mr McGee should leave the Laverton site. His belief that Mr McGee had not been employed may have been misguided, but that belief and his decision were directed to resolving the problem of the stoppages on the work sites. They were not directed to any issue of AWU membership, or Mr McGee being proposed as an AWU delegate, nor were they directed to the personal issues relating to Mr McGee which had been raised by Mr Cummins. Mr Newton said that what Mr Cummins said about Mr McGee made no difference to his decision and I accept that evidence. Although Mr Newton said that he decided that Mr McGee was not employed, regardless of whether he had to get him off the site for any other reason, I am satisfied that he reached that decision as part of the process of considering how to solve the problem of the workers stopping work on the respondent's work sites. Mr Newton's evidence is supported by Mr Bennetto who participated in the meeting on the afternoon of 2 October at which Mr Newton decided that Mr McGee should leave the site.

42 Mr McGee's membership of the AWU may have been the catalyst for the CFMEU's antagonism to him, but that antagonism for that reason was not transferred to the respondent. The attitude of the CFMEU was overtaken by the realisation by Mr Caccioppoli and Mr Newton that they had not complied with the EBAs or the respondent's Procedures as to employment and that they had a problem of stoppages on the respondent's work sites on their hands. Although the non-compliance with the EBAs and the Procedures were matters which may not have warranted termination of Mr McGee's employment once his employment had commenced, they were factors which Mr Newton and Mr Bennetto took into account, rightly or wrongly, when deciding what they should do about Mr McGee's employment. I accept Mr Newton and Mr Bennetto as truthful witnesses, and I accept their explanations as to what motivated them in deciding that Mr McGee's employment should be terminated.

43 It is necessary to characterise the reason or reasons why the respondent terminated Mr McGee's employment. They are not necessarily conterminous with the reason why the CFMEU did not want Mr McGee on site, which involved him being a member of the AWU. I am satisfied that the respondent did not terminate Mr McGee's employment because he was a member of the AWU, or was proposed to be an AWU delegate on site. I am satisfied that the major operative reason why Mr Newton and Mr Bennetto decided that Mr McGee's employment should be terminated was the fact that work had ceased at the respondent's four work sites as a result of the employment of Mr McGee and the respondent was incurring significant daily losses at the Laverton, Woodend and Werribee sites. The respondent terminated Mr McGee's employment because of an admixture of factors, namely the breach of the EBAs, the failure to comply with the respondent's Procedures, and to solve the problem of the stoppages of work on the respondent's work sites and the losses it was suffering and would continue to suffer as a result of the stoppages, which was the major reason.

44 Properly characterised, the respondent's reasons for terminating Mr McGee's employment did not include the fact that he was a member of the AWU, or was proposed as a delegate of the AWU on site, notwithstanding the fact that Mr McGee's AWU membership, and the CFMEU's antipathy to it, was the circumstance which started the train of events which ultimately resulted in the termination of Mr McGee's employment.

45 Counsel for the applicants put the matter succinctly when he submitted that "the question really here is what's in Mr Newton's mind?". What was in Mr Newton's mind was not - I am removing Mr McGee from the Laverton site because he is a member of the AWU, or because he is proposed as a delegate of the AWU. Rather, what was in his mind was - I must remove Mr McGee from the site in order to end the stoppages and get the workers back to work on the work sites.

46 These findings lead to the conclusion that I am satisfied that the respondent has proven that it did not dismiss Mr McGee from its employment because he was a member of the AWU, or because it had been proposed that he would become the AWU delegate on the Laverton site. The respondent has proven that such reasons were not operative reasons for the termination of Mr McGee's employment.

47 The applicants submitted that the freedom of association provisions of Pt XA of the Act are designed to protect employees who wish to be a member of a particular union. So much is found in s 298A which sets out the objects of Pt XA and s 3(b) which enshrines the principle of freedom of association: see also Davids Distribution Pty Ltd v National Union of Workers [1999] FCA 1108; (1999) 91 FCR 463 at 500; Construction, Forestry, Mining and Energy Union v BHP Steel (AIS) Pty Ltd [2000] FCA 1008 at par 48. The applicants submitted, further, that to find that the respondent was free to terminate Mr McGee's employment when the predominant reason for the termination was his membership of the AWU, strikes at the heart of the principle that Parliament intended to protect in enacting the freedom of association provisions. Such a finding would be erroneous if a reason why the respondent terminated Mr McGee's employment was his membership of the AWU, but the applicant's submission depends upon a finding in those terms.

48 Whether a contravention of s 298K(1) has occurred depends upon a finding that the respondent has dismissed Mr McGee for a prohibited reason, or for reasons which include a prohibited reason, the prohibited reason in this case being Mr McGee's membership of the AWU, or that it was proposed that he become a delegate of the AWU. I have not made a finding in those terms. The applicant submitted that it was clear that the fact that Mr McGee was a member of the AWU, or was to be a delegate of the AWU was the precipitating factor for the dispute and industrial action which occurred. It was certainly the start of a chain of events that ended up with the termination of Mr McGee's employment with the respondent. It may have been the precipitating factor for the industrial stoppages which occurred on the respondent's work sites, but as a matter of characterisation it was not the reason, nor was it included in the reasons, for the respondent terminating Mr McGee's employment.

49 Mr McGee's membership of the AWU was a significant factor in the sequence of events which led to the termination of Mr McGee's employment, but that factor, of itself, did not mean it was a reason for that termination. The reason or reasons for that termination must be determined by reference to the whole sequence of events in the manner to which I have referred. There was interposed between the CFMEU's antipathy to Mr McGee because of his AWU membership and the respondent's termination of Mr McGee's employment, the stoppages on the respondent's work sites. It was the desire to get the workers back to work and to end the stoppages which was the major reason for the termination of Mr McGee's employment. The other reason related to the failure to comply with the Procedures and the EBAs.

50 Support for the manner in which I have analysed and characterised Mr Newton's and the respondent's reasons for removing Mr McGee from the Laverton site and terminating his employment can be found in Wood (on behalf of the Industrial Relations Bureau) v Lord Mayor, Councillors and Citizens of the City of Melbourne (1979) 41 FLR 1. In that case, Mr Kane was employed by the City of Melbourne. He and other City of Melbourne employees were members of the Amalgamated Metal Workers' and Shipwrights' Union. The City of Melbourne employees who were members of that union, including Mr Kane, went out on strike. Some days later, Mr Kane resigned from the union and reported to the City of Melbourne for work. His conduct had industrial consequences for the City of Melbourne. After Mr Kane reported back for work, members of the union imposed bans on the supply of goods to the depot where Mr Kane was employed, and on vehicles on which Mr Kane had worked, in support of a demand of the union that Mr Kane be dismissed. He was subsequently dismissed. Informations were laid against the City of Melbourne charging it with three breaches of s 5(1)(aa) of the Conciliation and Arbitration Act 1904 (Cth). Section 5(1)(aa) relevantly provided:

" (1) An employer shall not dismiss an employee, or injure him in his employment, or alter his position to his prejudice, by reason of a circumstance that the employee -

(aa) has refused or failed to join in industrial action;

...

(4) In any proceedings for an offence against this section, if all the relevant facts and circumstances, other than the reason or intent set out in the charges as being the reason or intent of an action alleged in the charge, are proved, it lies upon the person charged to prove that that action was not actuated by that reason or taken with that intent."

51 The result of Mr Kane not joining in the strike was that the activities of the City of Melbourne were being disrupted and the strikers had imposed a number of bans. The town clerk said that the fact that Mr Kane had refused to remain on strike and join in the industrial action was not a factor actuating him in dismissing Mr Kane. He was concerned to create a situation in which the City of Melbourne employees would resume their duties and clear the streets.

52 Smithers J said at 13-14:

"If the employer's course of conduct in dismissing or standing Mr Kane down was decided upon by the employer by reference to any or all of these aspects of the total situation [the bans imposed and the cleanliness and the health of the City] and was not a response or reaction to the aspect that Mr Kane did not join in the strike then, there was no contravention of the section. In that situation it could not be said that the employer had injured Mr Kane, by reason of the circumstance that Mr Kane had refused or failed to join in the strike. He was injured because other people had created conditions impinging upon the employer's interests and the employer had acted by reason of those conditions. The fact that some of those conditions had been created by the strikers or the Unions in response to Mr Kane's failure to stay on strike does not alter that. The reason for their actions is not transferred to the employer in his response to those conditions."

53 Smithers J continued at 15:

"The words of s.5(1)(aa) can only be satisfied when it is failure to join with the fellow employees in the strike which actuates the employer to stand down his employee. Those words imply that the employer's hostile action against the non-striker is taken because the employer disapproves of the failure to join with the fellow employees in the strike or at least reacts to that aspect of the situation in a manner injurious to the non-striker. But action taken against a non-striker because of the disruption of the employer's establishment by the strike, or because he fears violence in and around his establishment and the like, does not imply any disapproval of or any reaction to the fact that the non-striker has not joined his fellow workers in the strike."

Smithers J concluded that the circumstance that Mr Kane had refused or failed to join in any industrial reaction was not a substantial and operative factor in the decision to stand him down and dismiss him, and the charges were dismissed.

54 The applicants submitted that Wood could be distinguished from the present circumstances. It was said that s 5(1)(aa) was a quite different provision to s 298K as it related to taking action against an employee because he or she had refused to join in industrial action. At the time Wood was decided, the requirement in s 5(1)(aa) that the adverse action be taken by the employer "by reason of the circumstance" that some event has occurred was not satisfied unless the circumstance or event was "a substantial and operative factor" influencing the employer to take the action: Mikasa (NSW) Pty Ltd v Festival Stores [1972] HCA 69; (1972) 127 CLR 617, at 634-635. Section 298K only requires the prohibited reason to be one of a number of reasons for the relevant conduct.

55 The fact that under s 298K one only needs an operative reason, rather than a substantial operative reason, in order for a reason to be a prohibited reason does not render the reasoning of Smithers J inapplicable to the present circumstances.

56 I agree with the view of RD Nicholson J in Maritime Union of Australia v Geraldton Port Authority [1999] FCA 899; (1999) 93 FCR 34 at 69 that the words "or for reasons that include a prohibited reason" in s 298K(1) mean that it is no longer necessary, as it was under s 5(1)(aa) of the Conciliation and Arbitration Act (General Motors-Holden's Pty Ltd v Bowling (1976) 12 ALR 605 at 615-616), for a reason to be a substantial and operative reason for an employer's action. In order to establish a contravention of s 298K(1), it is only necessary to find that the prohibited reason was one of the reasons for the action of the employer. Put another way, an employer does not discharge the onus of proof cast upon it under s 298V of the Act by establishing that the prohibited reason was not a substantial and operative reason for the action it took. The employer has to go further and establish that the prohibited reason was not a reason which had operative effect for the action it took: Maritime Union of Australia v Geraldton Port Authority (supra) at 69.

57 These differences do not render the reasoning process and chain of reasoning of Smithers J inapplicable to the present circumstances. It is his Honour's characterisation of the factor or factors which operated in the mind of the City of Melbourne officer which makes the reasoning in that case relevant to the present circumstances. In short, his Honour characterised the reason why Mr Kane was dismissed as being to avert an industrial stoppage and its consequences, and not because he was not joining in the strike. I have found, similarly, that the reason why Mr McGee's employment was terminated was to avert an industrial stoppage and its consequences on several of the respondent's work sites, not because Mr McGee was a member of the AWU, or a proposed delegate of the AWU.

58 The applicants sought to distinguish Wood on the basis that the context in which the breach of s 5(1)(aa) arose was different to the context in which the present circumstances arise. In Wood, Mr Kane had refused to join in the industrial action. That was unlikely, said the applicants, to be the City of Melbourne's reason for dismissing Mr Wood as it would want him to comply with his contract. In the present circumstances, Mr McGee's membership of the AWU had nothing to do with him complying with his contract of employment. The circumstances in each case, and the context in which each dismissal arose, are different, but the distinction raised by the applicants does not render the reasoning process and methodology in Wood inapplicable to the present case.

59 Ultimately the determination of the reason or reasons for an employer's termination of the employment of an employee is a question of fact: Maritime Union of Australia v Geraldton Port Authority (supra) at 83. An example of where that question was found in favour of the employee, that is termination for a prohibited reason, is Linehan v Northwest Exports Pty Ltd (1981) 57 FLR 49. In the present case, the respondent has established and proved that it did not terminate Mr McGee's employment for a prohibited reason.

60 The application will be dismissed.

I certify that the preceding sixty (60) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Goldberg.

Associate:

Dated: 20 February 2001

Counsel for the Applicants:	W L Friend
Solicitor for the Applicants:	Maurice Blackburn Cashman
Counsel for the Respondent:	M P McDonald
Solicitor for the Respondent:	Mallesons Stephen Jaques
Date of Hearing:	12, 13 December 2000
Date of Judgment:	20 February 2001