Childs, D.W. v. Metropolitan Transport Trust [1981] FCA 229

A hy PRN CAT Q

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CATCHWORDS

Industrial law - dismissal and prejudice to employee - Information pursuant to Conciliation and Arbitration Act 1904 s.5 - Onus of proof - substantial and operative factor - Alteration of employee's position to his prejudice - injury to employee in his employment - dismissal of employee. Employer actuated by circumstances specified in s.5(1) of the Act - Employee proposed to appear in proceedings under the Act - Commission hearing pursuant to a notice under s.25 not disclosing interstate character of dispute. Whether a proceeding within s.5(1)(c) of the Act - Employee's dissatisfaction with his conditions - requirement that better conditions being sought by organization be specific - Membership of Union as an actuating circumstance in decision to dismiss employee ~ Requirement of some relevant quality in

the conduct of the employee as member.

Conciliation & Arbitration Act 1904

Desmond William Childs v. Metropolitan Transport Trust

Smithers J.

9 December 1981

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V. No. 16 of 1981

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INDUSTRIAL DIVISION .

IN THE MATTER OF The Conciliation and Arbitration Act 1904

BETWEEN: DESMOND WILLIAM CHILDS

(Informant)

AND: METROPOLITAN TRANSPORT

TRUST (Defendant) Judge Making Order: Smithers J. Date of Order: 9 December 1981 Where Made: Melbourne ORDER 1. The Court finds that on 22 December 1980 the defendant

altered the position of the informant to his prejudice by

reason of the circumstances that:-

(a) the informant was entitled to the benefit of

an award;

(b) the informant proposed to appear and give

evidence in a proceeding under the Act; and

(c) being a member of an organization which was

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seeking better industrial conditions the

informant was dissatisfied with his

conditions.

2. The Order of the Court is that the defendant be convicted and a penalty of $400 be imposed on the defendant and that the amount of this penalty be paid to the Municipal Officers'

Association of Australia.

3. The Court finds that On 23 December 1980 the defendant

dismissed the informant by reason of the circumstances that

(a) the informant was a member of the Municipal

Officers' Association;

(b) the informant was entitled to the benefit of an award; (c) the informant proposed to appear and give

evidence in a proceeding under the Act; and

» (d) being a member of an organization which was

seeking better industrial conditions the informant was dissatisfied with his

conditions.

4, The Order of the Court is that the defendant be convicted

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and a penalty of $400 be imposed on the defendant and that the amount of this penalty be paid to the Municipal Officers'

Association of Australia.

5. Liberty to apply in respect of any other relief to which

the informant may be entitled is reserved.

Fe I A a mm tN AN een em art . a

—

IN THE FEDERAL COURT OF AUSTRALIA

) ) VICTORIA DISTRICT REGISTRY ) V. No. 16 of 1981 ) )

INDUSTRIAL DIVISION

IN THE MATTER OF The Conciliation ' and Arbitration Act 1904

BETWEEN: DESMOND WILLIAM CHILDS

(Informant)

AND: METROPOLITAN TRANSPORT TRUST

(Defendant)

Coram: Smithers J.

9 December 1981

Melbourne

REASONS FOR JUDGMENT

Upon an information dated 2 September 1981 Desmond William Childs informs the Court that the defendant Metropolitan Transport Trust (the Trust) was guilty of conduct

contrary to the provisions of s.5 ss.1 of the Conciliation and

Arbitration Act 1904 in that:-

1. On 22 December it did alter the position of

the informant to his prejudice in his

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2.

employment by reason of the circumstances

that the said informant -

(a) was a member of the Municipal Officers! Association (MOA) an organization registered pursuant to

the Conciliation & Arbitration Act

1904 (the Act) as amended;

(b) waS entitled to the benefit of the Muncipal Officers' Association (Metropolitan Transport Trust)

Tasmania Award as amended;

(c) proposed to appear as a witness in

proceedings under the Act;

(a) being a member of the said organization which was seeking better industrial conditions he was

dissatisfied with his conditions; and

(e) being a member of the said organization he had done or proposed to do acts and things which were lawful for the purpose of furthering

or protecting the industrial interests

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of the organization, being acts or things done within the limits of the authority expressly conferred on him by the organization in accordance with

the rules of the organization.

2. On 22 December 1980 the defendant did injure the informant in his employment by reason of the circumstances set out in

paragraph one above.

3. On 23 December 1980 the defendant did dismiss the informant from his employment by the reason of the circumstances set out

in paragraph one above.

The material conduct alleged in respect of the first and second charges was that by a notice in writing dated 22 December 1980 the defendant informed the informant that as from 5 January 1981 he would cease to hold the position of acting senior revenue clerk and return to the position of pay

clerk.

The material in respect of the third charge was that the defendant delivered to the informant notice in writing

dated 23 December 1980 in which the defendant notified the

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informant that his employment with it would terminate as from

close of business on that date.

By s.5 ss.4 of the Act it is provided that:-

"5(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 charge 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."

In the application of s.5 it is to be noted that in respect of action taken by an employer, he may be said to have been actuated by a particular reason if it was a substantial and operative factor influencing him to take that action although that reason was but one of a number of reasons which so

influenced him. See Mikasa v. Festival Stores (1972) 47

A.L.J.R. 20 and General Motors-Holdens Pty. Ltd. v. Bowling (1976) 12 A.L.R. 605.

At the close of the informant's case Dr. Jessup submitted that there was no case to answer in respect of the charge that on 22 December 1980 the defendant altered the position of the informant to his prejudice. He made a similar submission in respect of the charge that on 22 December 1980 the defendant did injure the informant in his employment. I aid not accede to the submission in respect of the first charge but I did accede to that in respect of the second. I

stated my reasons as follows:~

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"This matter has been argued apparently as far as it can be by counsel and it is necessary that I should indicate my findings in respect of the submissions made to me by Dr. Jessup. So far as the first count in the information is concerned, namely, that on 22 December the defendant altered the position of the informant to his prejudice in his employment, by reason of one or more or all of the circumstances set out in paragraphs l(a), {(b), (c), (a) and (e) of the information, I am of the opinion that having regard to the facts before me, as they stand at the moment, without evidence contradicting those facts, I would consider that there is a case for the defendant to answer.

The answer to the problem depends upon the proper interpretation of section 5 of the Conciliation and Arbitration Act 1904, and in particular the proper construction of the wordstalter his position to his prejudice' in the opening sentences of the section. I think it has to be observed that basically the mischief aimed at by section 5 is a class of action taken by an employer against an employee not because there is anything wrong in taking that action in a proper case, but taking that action where it is actuated by various reasons, or one of various reasons, closely connected with the operation of the Conciliation and Arbitration Act which are set out in Section 5. Recognising that the objectives of the Act, which are to encourage unionism and the observance of awards, the settling of disputes by conciliation and arbitration and through representative bodies of employers and employees, parliament has been aware of the fact that those objectives would be largely frustrated if employees, who were minded to be activists, energetic or even less than energetic in what I call the operation of the Conciliation and Arbitration Act, were subject to fear that they would be injured in their employment if they did take an active part in union affairs and in pressing what they thought were the rights and privileges which ought to be assocated with their employment.

Originally, in order to protect employees from the fear of injury in their employment, parliament enacted what is now section 5, but the section did not then include the words "or alter his position to his prejudice'. No doubt, because it was found that a man could 'suffer because of his

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activities in the operation of the Act, through action taken against him by his employer because of those activities, which did alter his position in his employment to his detriment, but did not actually injure him then and there in a practical way. It seemed good to parliament, therefore, to say to employers, "You must not dismiss him for any of those reasons. You must not injure him in his employment for any of those reasons and you must not, whether you injure him or not, alter his position to his prejudice.".

The overall intention is that employees shall feel free to operate the act without fearing dismissal, injury or prejudicial alteration of their position. It is possible to read the word

'position' in a narrow way merely as referable to the immediate incidents of day-to-day employment.

But I do not see any reason why it should be so

circumscribed in meaning. It seems to me that the word 'position' should be read rather to refer to

a man's employment position in all its attributes and that to find what those attributes are in any particular case, you look at the terms of employment, the terms of the agreement in relation to the particular employment.

Fear of alteration of any of those terms or of the entitlements thereunder would be as potent a factor inhibiting an employee from operating the Act as fear of dismissal, or loss of pay or something in the nature of an immediate injury. I think therefore that cancellation or repudiation of a term of employment which has been agreed upon, cancellation or repudiation by an employer which the employee is in no position, legal or otherwise, to resist or oppose, although he may get some legal rights in relation to it, by withdrawal of a promise of secure employment in a position for an agreed term is an alteration in the employee's position within the meaning of section 5, and I think it takes place on the day of cancellation or repudiation of the promise that was made.

From then on his position is substantially altered. The term has gone. I do not think that this is a forced or fanciful construction of the word 'position' or of the meaning of the total phrase. I am told I must apply a fairly restricted meaning because this is a penal statute, but I feel that I should apply a natural meaning, not forced or fanciful in any way and a meaning which accords with what seems to me to be

Ro ee eres ones

the intention and the objective of the relevant Statute. Therefore, so far as the first count is concerned I am unable to find at this moment that

a case to be answered is not made out.

So far as the second charge is concerned, I am unable to see that in the narrow sense in which the word 'injure' seems to be used, the informant was injured in his employment on 22 December. It did not occasion him any immediate loss of income. It did not mean that he did not do the same work during the period that his employment in the senior revenue pay clerk's office entailed him in performing that work. It is said that it reduced his status so far as the rest of the staff were concerned and did so as from that very moment. No doubt that is quite probable and probably did occur but it seems to me that that kind of thing is more aptly considered to be an alteration in his position than an injury. I cannot help thinking that 'injury' refers to deprivation of one of the more immediate practical incidents of his employment, such as loss of pay or reduction in rank.

It has been said to me that his employment was not an employment for six months because I should interpret the advertisement as incorporating a term into that employment that it was during that six months probationary in the sense that it could be brought to an end 1f the employer felt that he was not measuring up to the requirements of the new position or that he was in fact not measuring up to what one would expect of a man who was in the position for six months with a view to possible permanent employment therein.

It seems to me that putting the matter as high as it can be for the defendant at this stage of the case, it could not be put higher than that the informant was offered employment for six months; that he accepted it and that the Trust accepted him on an agreement for six months. The advertisement in question reads as follows:

'VACANCIES

Acting Senior Revenue Clerk ... during this probationary period.'

To my mind, he was promised a period of six months

which was to be probationary in nature. Of course

it could be brought to an end at any time if it

were found as a fact that he was not performing

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with a satisfactory degree of competence to justify the continuance of the six months period. But that, on the evidence so far adduced, was not alleged.

In the letter of his reduction of the term of his employment as senior revenue clerk, it is said that the first matter of substance is that there is a reference to the Municipal Officers' Association having lodged an application to reclassify the position from grade 6 to grade 7 and that the hearing of the dispute is coming on early in January. It is not clear what that provision has to do with the substance of what the letter achieves. It goes on:

'Because there was no logical successor to the previous Senior Revenue Clerk you were appointed to act in the position for a trial period'

presumably 6 months. It goes on to Say:

'It is now my intention to appoint another officer to act as Senior Revenue Clerk for a period of three months in order to determine, by performance, the

. most suitable person for the position. I hope that a permanent appointment can be made by May 1981'

Suggesting that the informant is still the person who may be considered for the permanent position. And then it goes on:

'As from Monday, 5 January 1981, you will resume your position as Pay Clerk.'

Well, in those circumstances I am satisfied that if I had to decide the matter without further evidence and having regard to the onus of proof provision in section 5, sub-section 4, I would feel constrained to say that the charge had been made out.

Accordingly, it will be necessary to proceed with that charge was well as one relating to dismissal, but at this stage I should dismiss the second count, and I do."

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On the submissions mentioned above it was not put that there was not evidence upon which a finding beyond reasonable doubt might be made of the existence of one or more of the circumstances specified in ss. (a) to (f). I am satisfied

beyond reasonable doubt that:-

(a) at all material times the informant was a member of the Municipal Officers' Association of Australia, an organization

registered under the Act. (s.5(1)(a));

(b) at all material times the informant was . entitled to the benefit of an industrial award, namely the Municipal Officers' (Metropolital Transport Trust) Tasmania

Award 1967 as amended (s.5{1)(b));

(c) as from 27 November 1980 until 23 December 1980 the informant proposed to give evidence in a proceeding under the Act

(s.5(1)(c))3

(ad) being a member of the M.O.A. which was seeking better industrial conditions the

informant was dissatisfied with his

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. 10. conditions. (s.5(1)(d))

I am not satisfied that circumstance (e) alleged is

established.

There is no dispute concerning the existence of circumstances (a) and (b) above, but there is concerning the existence of circumstances (c) and (d). Concerning (c) it was urged for the defendant that a positive finding could not be made because the relevant "proceeding" was not a proceeding under the Act. The proceeding in question was one initiated by a notice purporting to be given under s.25 of the Act. That notice was dated 27 November 1980, it was signed by the Federal Secretary of the Union. It was in the following

terms:-.

"In pursuance of Section 25 of the Conciliation and Arbitration Act 1904, the Municipal Officers' Association of Australia hereby notifies you of the existence of an Industrial dispute between the Metropolitan Transport Trust and the Municipal Officers' Association of Australia, 1-3 O'Connell Street, North Melbourne, 3051, in respect to the following matters:

Yr. Metropolitan Transport Trust have appointed Mr. Des. Childs to the position of Senior Revenue Clerk, on the 17th August, 1980.

2. The current award classifies that position as Grade vii.

3. Metropolitan Transport Trust have refused to appoint Mr. Child at the award rate, claiming he should be appointed at Grade vi.

4. Metropolitan Transport Trust claim that the position is one of Acting Senior Revenue

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Clerk.

5. No such position or classification exists in the award.

6. Metropolitan Transport Trust have therefore refused to abide by the current award.

7. Because of this situation, I now seek to have this matter which is at an impasse, determined by the Commission before it leads to serious disputation."

Dr. Jessup contended that the dispute specified in the notice was clearly not one extending beyond the limits of any one state nor, as I understood, did the notice disclose a situation which was likely to give rise to an industrial Matter which did so extend. He contended also that the dispute disclosed in the notice related only to the question whether or not the Trust was observing the award and that that

was a matter for a proceeding under s.119 of the Act but not

under s.25.

It is clear that at the relevant time the informant intended to give evidence in a proceeding which he understood to be initiated by the notice and in which in due course a member of the Commission, in the course of his duty under the Act, would conduct a hearing, and, as the fact was, that the General Manager of the Trust and its senior officers were aware of the informant's intention and understanding of the position and so understood it themselves. It may be conceded that interstate aspects of the dispute do not expressly appear

on the face of the notice. Nevertheless it is clear that the

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notice seeks the intervention of the Commission in a dispute in an industrial matter, "before it leads to serious

: é : : : : disputation.". Clearly the notice invokes the exercise of

powers vested in the Commission by the Act.

[The notice was treated by the Commission as one requiring a response on its part in the performance of its duty and the exercise of powers vested in it by the Act. It set a date for a hearing and a hearing took place on 5 January 1981 before Commissioner McLagan. The parties duly appeared. The issue and the circumstances in which it arose were seriously argued by both sides and the Commissioner ultimately made a recommendation that the informant should have been receiving the rate of pay which he claimed. It is important that from first to last it was the genuine belief of all concerned in the "proceeding" that the claim by the Union for a determination was made in the genuine course of invoking the exercise of the powers of the Commission under the Act. No submission was made to the Commissioner that he lacked jurisdiction to hear the matter raised by the notice. If such a submission had been made, it is not certain, that on the general issue whether the Trust should pay award rates of persons permanently appointed to classified positions to persons appointed to such positions in an acting capacity, particularly as there was no classification for acting appointments, it might not have been shown that questions

outside the award were involved. Also it might well have been

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13.

shown that there was was a sufficient likelihood of the dispute extending beyond the limits of Tasmania. But however, this may be it is my opinion that in the context of s.5(1)(c) the reference to a proceeding under the Act comprehends a proceeding brought under the Act and extends to any proceeding in which the jurisdiction and powers of the Commission are bona fide invoked, certainly where the matter in issue 1s an industrial matter. It is hardly to be thought that s.5(1)(c) 1s not intended to protect an employee who intends to give evidence in a proceeding honestly believed by all concerned, to be a proceeding under the Acc but which is found to be misconceived and rejected for lack of jurisdiction under the Act. Reference may be made to Trobridge v. Hardy (1965) 94

C.L.R. 147 at p. 156, Little v. The Commonwealth (1947) 75

C.L.R. 94 at p. 113, Parisienne Basket Shoes Pty. Ltd. v.

Whyte (1937) 59 C.L.R. 369, Deputy Commissioner of Patents v.

Board of Control of Michigan Technological University (1979)

28 A.L.R. 551 at pp. 560, 562 and 568 and Collector of Customs

(N.S.W.) v. Brian Lawlor Automotive Pty. Ltd. (1979) 24 A.L.R.

397.

It is difficult to think that if the ultimate

decision in In Re Turbet & Ors ex parte The Australian

Building Construction Employees and Builders' Labourers

Federation 2 December 1980 High Court of Australia (as yet unreported), had been to the effect that the matters in issue

raised no interstate dispute and was not likely to do so there

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would have been no proceeding under the Act. Accordingly I

consider that finding (c) above is well founded.

Concerning finding (d) above the first submission of the informant was that throughout 1979 to 1980 the Union had made various demands some of which were still unsatisfied and throughout the whole period the informant was dissatisfied with his remuneration. I do not accept this submission. But it was also submitted that from the moment the Union filed the s.25 notice the Union should be seen to be asserting, not only that grade 7 was the proper rate of remuneration for the informant, but that payment at the award rate was payable to every employee doing the work in any award classification whether he was appointed permanently or in an acting capacity. It seems clear that a claim for full classification rates for acting appointees, where the circumstances are that such rates are not paid or the claim is not admitted, is a claim for better industrial conditions. A Union which seeks to obtain recognition of such a claim may be said to be seeking better industrial conditions. It 1s apparent that in the proceedings before the Commission the Union was seeking recognition of the view that persons in acting positions should be paid the award rate for those positions and that the duties of the employees should be related to specific classifications. On the other hand the Trust was seeking recognition of a discretion on its part to remunerate acting appointees at rates under the award

rates for the relevant classifications, and to allot duties

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15. °

irrespective of award classifications. In this sense therefore the Union was seeking better industrial conditions and this had become apparent to the management of the Trust certainly since the latter part of 1979. And in relation to the matter involved therein the informant was not satisfied

with his conditions.

Once what the Union is seeking has a sufficient specificity about it, and the employee's dissatisfaction is within what is specified, it would seem that circumstance (d) exists. In this case the claim can be seen to be specifically directed to achieving award rates for acting appointees, and the informant who was allotted duties including and extending beyond those of an award classification was an acting

appointee not receiving the relevant award rate.

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The Informant as Staff Member and Union Member to May 1980

The informant joined the Metropolitan Transport Trust in July 1978 in the capacity of senior clerk. His classification was or later became "clerk special ability (b) pay clerk" and his remuneration was at award rate grade two. He was required by the Trust to join the relevant Union. The informant became a member of the Metropolitan Transport Trust sub branch of the M.O.A. and proxy committee man. The informant was very active. Tt is to be noted that with the exception of the General Manager every member of the staff of the Trust including those who might be considered part of Management were members of the sub-branch. Thus Mr. Adkins,the Traffic Manager and Industrial Officer and later Assistant General Manager and Mr. Byrne the Acting Secretary and Mr. Ling the Engineer were members of the Union and

attended meetings.

There were a number of industrial issues of importance. They included the union demand for provision of duty statements to staff members, the payment of allowances for performance of higher duties, wage rates comparative with those of the public service, the allocation of duties of employees to accord with award classifications. The Union objected to bus drivers and members of another union being

appointed to clerical positions. It sought that vacancies and

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17.

new appointments be advertised. It claimed the right to have union representatives present when union matters were discussed between the General Manager and staff members. It sought the adoption of particular qualifications for clerical appointments. It was apprehensive concerning the effect of the introduction of an in-house computer on security of employment. On all these issues there was activity in which the informant took a prominent part. They involved him in delegations to the General Manager and in many personal discussions with him. The provision of duty statements was a recurring claim. The General Manager's attitude was generally that he agreed on the desirability of supplying the statements but there was great delay in implementing his agreement. The informant did not receive his until April 1980. However, nearly 'all had been provided by the end of May 1980. The provision of duty statements was linked to the problems concerning identification of classifications of staff members and higher duties allowances. And those in turn were linked with the problems of acting appointments and relieving appointments during long leave of staff members and the advertising of vacancies. In all these respects the General Manager maintained that he must have flexibility to appoint whom he chose and that to allocate duties within strictly defined award classifications unduly restricted his freedom. The Union did not concede any of those points and by April

1980 the sub-branch was becoming restive.

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In his meetings with the General Manager the informant had made repeated representations about the policy of management in a number of areas. He complained in strong words that only one clerical junior had been recruited for years and that it was this which led to the introduction of bus drivers into the clerical staff. To this the General Manager replied that the introduction of bus drivers was traditional and provided incentive for the bus drivers. fhe General Manager and the Union were in disagreement on this issue. And they were in disagreement over most of the issues mentioned above. Repeatedly the General Manager insisted on the importance to him of the flexibility of existing practices and discretions. It was to this that the Union attributed the gap between the General Manager's expressions of intention to make changes as sought by the Union and their implementation. In pressing for these changes the informant was in the vocal

forefront.

In one other matter the informant took action which caused the General Manager to send for him and upbraid him. A debate having occurred between two sections of the bus Grivers' union, the A.T.M.O.E.A., as to whether the General Manager of the Trust should be the chairman of the controlling Board of the Trust, the informant thought that the M.O.A. should have a policy on the point and wrote to his union expressing this view. At the interview The General Manager

was in a great rage and insisted that the matter was not one

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19.

which the Union or the staff ought to be considering. It may be noted that the General Manager was under the impression that the informant had taken a poll amongst staff members on the question. This issue surfaced in April 1980 or a little

s

earlier.

In April, the committee of the sub branch of the Union considered various of the issues mentioned above and decided the time had come to consult the members in extraordinary meeting. The informant moved that an extraordinary meeting be held on 13 May 1980 to discuss various matters, namely, members of other unions performing duties of M.O.A., members' anxiety re introduction of an in house computer, duty statements for all staff positions and stability of working conditions. The motion was carried. Later, on the initiative of the informant, the subject of direct consultation by the Trust management with staff members on M.O.A. policies without union representation was added. The meeting was held and was well attended. Present were Mr. Byrne the acting secretary and Mr. Adkins. One Mr. Pullen, complained that on numerous occasions the Trust had not adhered to its agreement to comply with the sub-branch's request that all jobs be advertised in the Trust bulletin and moved that the M.O.A. again approach the Trust on the mattera This motion was carried. The informant moved that "firm resolute action" on the part of the sub-branch was needed to

protect the future job opportunities of the members and moved

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that the M.O.A. would not accept members of another union performing the duties of positions covered by the M.O.A. award. He referred to a current issue concerning a relief for one Mr. Crawford who wished to attend the United States for a few months. He said that management was bargaining that if the M.O.A. insisted on a M.O.A. member relieving him then Mr. Crawford might not be granted leave. Mr. Ling, the engineer of the Trust moved an amendment somewhat softening the terms put forward by the informant. The amendment was carried. The informant briefed the meeting on a recent discussion with the General Manager on the matter of the effect on staff of reintroduction of an in-house computer and in which the General Manager had given an assurance that there would be no redundancies but had given no information as to the jobs which might be affected or to what extent. The informant moved that the sub-branch form a Technological Change sub-committee to monitor changes with particular reference to staff conditions, employment and security. This was carried. The informant moved that a sub-committee be formed to go the Minister for Transport to discuss security of tenure in the Trust. Mr. Adkins moved an amendment calling for a sub-branch committee

approach to the General Manager before any approach to the

Minister. The motion was carried as so amended.

The meeting received a written request from the informant that it discuss the matter of the General Manager's

direct attempts to negotiate M.O.A. business through

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individual members without authorised union representation in attendance. The informant said that the General Manager had recently questioned individual officers from the accounts section as to why they required duty statements when in fact the sub branch executive had made numerous approaches to the Trust on that matter. The meeting carried a resolution that a letter be sent to the General Manager expressing the strong objection of the sub-branch to the General Manager approaching individual members or groups of members on M.O.A. matters and requesting him to address all M.O.A. matters to the executive. This last matter had reference to an interview to which the General Manager had called some members to his office and asked them why they needed their duty statements. He said "really, what do you want them for?" The informant said "Look Tom, we. have told you this all along that we need to base a claim regarding duty statements and also people need to know what they are required to do." It appears that it was the custom for the General Manager to be addressed by all staff members as "Tom". The General Manager appeared rather to

encourage this.

The sensitivity of the Trust to these various issues is demonstrated in the remarks of Mr. Adkins at the hearing pursuant to the notice under s.25 of the Act, which are set out hereafter.

From the foregoing it is clear that the informant

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was most active in union affairs and in persuasion of members

'to take real action on outstanding issues and that there was

something of a climax in union activity at the time of and at the meeting of 13 May. No doubt the General Manager was apprised of the proceedings at the May meeting and of the

informant's part therein.

Having been a pay clerk from July 1978 until May 1980 and having received but one complaint to him from any senior officer as to his conduct, it came as somewhat of a surprise to be called to an interview with Mr. Adkins and Mr. Hankin, another senior officer, on 23 May and told that there were numerous complaints about his manner to and relationship with the bus drivers to whom it was part of his duty to give their wages each week. It appears that the General Manager had instructed Mr. Adkins to interview the informant in the presence of another senior officer and inform him that there were complaints and that they were serious and that it was

imperative that he change his manner to the bus drivers.

Mr. Adkins opened the interview by saying that the General Manager had instructed them to interview him about complaints about his attitude with the drivers. He said also that the informant was too forthright in union affairs. So far as complaints were concerned it was mentioned that they were made by Mr. Geason, the secretary of the A.T.M.O.E.A.

The informant said he knew of one complaznt which had been

23. '

made good between him and the driver concerned and asked who were the people who had made other complaints and what they were. Mr. Adkins had to confess he could not particularise. But according to Mr. Adkins he told the informant that it could be serious for him if his manner to the drivers did not improve. And in relation to this matter and his forthright union activity he was informed that the General Manager had : bigger things in mind for him. Mr. Hankin pointed out that he should calm himself down because nobody was giving him any credit for getting benefits for them. Mr. Adkins descended upon particulars as to possible promotion Saying that with the movement to the eastern shore there would be positions created over there and that the informant was being looked at very seriously for a higher grade position at the Mornington depot. The informant said "Frank, it seems a bit like the old buy off trick to me" and Mr. Adkins said "Just calm yourself down and you will get on all right". The informant expressed doubts as to whether with his nature he could let things go which were not right. He said that he felt that any position he got, he

would have to get on his merits.

Mr. Adkins made a written report to the General Manager which omits any reference to that part of the conversation in which it was put to the informant that he should relax in his union conduct or 'that the General Manager had him in mind for bigger things. Its terms seem much

stronger in reporting a threat of possible dismissal than the

Op a RF LL A A AT eR Ne - a —+~-—. -~

satdccehte Ia banat eatanianamtenee casarteunt ameateiiaeeemcmmeemantamennl

24, ?

substance of the conversation seems to indicate. It proceeds on the basis that there were numerous complaints and that they were all valid. It appears that none of them had been investigated. So to proceed was most unfair, and indeed, I think Mr. Adkins conceded as much. If Mr. Adkins had been asked to prepare a report which might be useful in case of a later move to dismiss the informant his report would have

fulfilled that objective.

ren

25.

The Move to Acting Senior Revenue Clerk

There is no suggestion of further complaints and indeed during June and July there is little evidence of activity of the informant or anyone else on union matters. At the interview last mentioned the informant 'had been subjected to a caning and had been offered a reward 1f he calmed down. Apparently at the end of July he was regarded as sufficiently calm to receive the reward. A position was advertised in the

following terms:~-

"ACTING SENIOR REVENUE CLERK -— Due to retirement on 15 August the Trust is calling for applications for the position of Acting Senior Revenue Clerk for a period of 6 months. Salary will be equivalent to Grade 6 M.0O.A. during this probationary period.

Applications stating accounting qualifications and experience should be submitted to the Acting Secretary by 5 p.m., 30 July, 1980."

The informant applied for the position. His application was accepted. It is important that the appointment was for a period of six months albeit that it was described as a probationary period. Mn the hasis of the advertisement the successful applicant would anticipate permanent appointment if his performance was satisfactory during the probationary period. There was a duty statement for the position. It said nothing on the subject of devising

a system of recording statistics on various aspects of

revenue. However, on his being appointed, the General Manager

ee

pee ee teres —— we ee ee na tence ented

26.

stated that he desired the informant to undertake that task. The informant agreed to do this. It waS apparent to the informant that the grade 6 salary advertised for the position was one grade below the award rate. The General Manager had downgraded the rate on his assessment of the work value. The informant indicated that he would accept the grade six rating until he had proved himself in the position after which he would want it reviewed. Thus the informant was given the position at a rate of pay below the award rate and a task not on the duty statement was added to the duties. This was a situation exemplifying the kind of flexibility which the General Manager had been anxious to preserve against those attempting to achieve duty allocations strictly in line with award classifications. And it was being implemented with respect' to the very man who had fought so hard against that

kind of flexibility.

After the informant felt that he had mastered the work involved in his new appointment as described in the duty statement, he asked Mr. Byrne to take up the matter of regrading the salary to the award rate. Mr. Byrne advised him that the grading would not be reconsidered. This occurred more than once. In the end Mr. Byrne told the informant that the General Manager had the right to assess the rate for the position. The informant made it clear that he did not accept

this. He took it up with the Union.

ro

27.

The statistical task was described as devising a schedule or plan of presentation in convenient form in respect of certain information to be collected by the informant concerning revenue past and current, in terms of weekly run downs on passengers, revenue by sectional fares on various routes, charter work, transfer passes, pensioner concessions, and other aspects of the services provided' by the defendant. In this matter the informant was responsible to the Secretary, Mr. Byrne. The matter was explained to Mr. Byrne. The informant was instructed to take up with Mr. Byrne and the planning officer Mr. Gregg the format in which the statistics should be presented and the nature and extent of information required. As the General Manager agreed, the informant had to devise the new system of presenting and collecting the information considered relevant. What was required was described only in very general terms. Obviously some imagination had to be applied to decide what information was to be collected and how it was to be arranged. Consultation on these matters between the informant and Mr. Byrne was

essential.

The statistical task was never completed. The informant had a very difficult task to learn and perform the work of his new position. In addition he was to control certain staff members who felt another officer should have been appointed. He certainly applied himself in the job with

energy and enthusiasm and succeeded. It was inevitably weeks

nadie nent aacat dca tains aindedadammeaeatameeentemmtatenemnenn hte emmmenemmaememned an eo me oe eee — a me ae a

28.

before he took up the matter of the statistics with Mr. Byrne. He said and I believe him, that he made several attempts to get Mr. Byrne to arrange a meeting with Mr. Gregg to determine the content and format of the information to be collected and presented. It seems that the meeting did not take place until about mid-November or even later. From then on the informant commenced the work of planning and collecting the information. The task was not promptly completed and Mr. Byrne spoke to the informant on more than one occasion urging early completion. The informant was willing enough to do this but his available time to do so in office hours was limited and he was unwilling to work overtime because the Trust would not pay for overtime worked. The informant showed Mr. Byrne drafts of the format and certain of the collected information and on 21 December told him he would have the work completed in a week.

So far as time for completion is concerned, the General Manager's letter of 22 December indicated it was his view that completion of the task might have taken up to about the third week of November. The informant never completed the task because he was dismissed on 23 December 1980. On 22 December 1980 he was informed by letter signed by the General Manager and delivered to him by Mr. Byrne that as from Monday 5 January he was to resume his position as pay clerk. The

letter was in the following terms:~

29. °

"ACTING SENIOR REVENUE CLERK — HOBART

I refer to your appointment to the above position on a temporary basis from 17 August, 1980.

The Municipal Officers' Association has lodged a dispute over the decision of the Trust to reclassify the Senior Revenue Clerk - Hobart, from Grade 7 to Grade 6, before advertising last August. I understand the date of hearing of the dispute before the Conciliation and Arbitration Commission has been postponed from 19 December to a date to be fixed early in January, 1981

Because there was no logical successor to the previous Senior Revenue Clerk you were appointed to act in the position for a trial period. It is now my 1untention to appoint another officer to act as Senior Revenue Clerk for a period of three months in order to determine, by performance, the most suitable person for the position. I hope that a permanent appointment can be made by May, 1981.

As from Monday 5 January, 1981 you will resume your position as Pay Clerk. In the meantime, you should complete the work I requested of you some months ago and submit it to the Secretary. I expected this work to have been completed at least four weeks ago."

30. °

Demotion and Dismissal - The Reasons Therefor

The events of 23 December 1980 were a sequel to those of 22 December and I think that in the circumstances of this case identification of the real reasons for demotion on 22 December assist in identifying the real reasons for the dismissal on the 23 December. The General Manager asserted that the conduct of the informant in relation to the matter of the statistics was the only reason for the demotion. I do not believe this.' .1 am not satisfied that it was an operative reason at all. The contents of the letter of 22 December are not consistent with the General Manager's assertion. The letter bears the marks of careful preparation by a person who had decided to remove the informant from his position and was seeking to justify doing so. The draftsman has gone to the trouble in the first paragraph to mis-state the terms of the informant's appointment as acting senior revenue clerk. 'The appointment was for a fixed term. If the letter had commenced with an acknowledgement that the appointment was for a fixed term then, if the informant was to be demoted from 5 January, some reason would have had to be shown, some default on the part of the informant, justifying the cutting short of his fixed term. Had the situation been that the General Manager was justified in having "perceived" that the informant just "would not" perform the work of collecting the statistics,

there would have been a good reason for cutting short the

———

"

31. 2

fixed term. The obvious course from every possible consideration would have been to state it. But if that notion were a fiction then there was no reason which could be alleged

as a good reason for cutting short a fixed term appointment.

In the third paragraph the General Manager indicates that the real reason for the demotion is a change of mind. He says - "It is now my intention to appoint another officer to act as Senior Revenue Clerk for a period of three months in order to determine, by performance, the most suitable person for the position." There is no suggestion that the informant has been defiant; has wilfully refused to carry out the task which he had undertaken to perform. The last sentence in that paragraph indicates that the informant himself may perhaps look forward to the permanent appointment which may be made in

May 1981.

It is not as though the General Manager did not have the matter of the statistics in his mind when he wrote the letter. The most critical comment that he makes in this respect is that he expected the work to be completed at least four weeks before. This is a far cry from a state of affairs in which he is removing the informant for gross default and indeed for actual refusal to perform the work, notwithstanding

the setting of numerous deadlines.

It is quite significant to my mind that in the

Seal neelCantaal tte tant dhe tometeanelnaatendnenmenanmecnaeneeennennaenene

32.

second paragraph in the letter the General Manager goes to the trouble of referring to the section 25 proceedings. With respect to the matter in hand these were quite irrelevant. The General Manager said that he inserted this paragraph in order to let the informant know that he knew of the proceedings. But by 22 December he could hardly have doubted that the informant was well apprised of that. The presence of the second paragraph indicates that in the mind of the General

Manager the demotion and the s.25 proceedings were related to

each other.

The terms of this letter appear to me to be in direct conflict with the General Manager's statement "So far as the reversion goes my one hundred per cent concern was that

he had not produced that revenue information." or as elsewhere stated by the General Manager that he "perceived" that the

informant "Would not" produce the statistics required. The

General Manager's explanation of the letter is just

unacceptable. It appeared in the following passage:-

"Why on earth did you not write to him and say, 'Dear Mr. Childs, this is over the odds. You have known for months and months that I regard those statistics as vitally important. I understand you have been given several deadlines aiready. You have failed in every one of them and therefore I must take you out of that position and send you back to be a pay clerk'. That would have been the true position, would not it?---That is correct, sir.

Why did you not tell him the truth?---Well, it is not a matter of telling the truth.

i

Fike eS vet AR ee mare eae tne tent tae tmnt ele Mar eee ete eee a eet nat ents dy me ehanten tetas te

i a: .

33.

Yes, it is?--~It is, but --- It is. He is entitled. The man 1s entitled to the truth? --- Correct. The point is, that in the context in which we work he had been told on a number of occasions by the financial controller Lo get those statistics. He had been told it was the day that he was appointed. In the context of that and the events that transpired, the operative thing is; that although you are going to be reverted, because you know - this is my thinking of it - you know that you have not produced that information, but although you are going to be reverted from 5 January I still want you to bring up to date those statistics which you should have done ' auring that time." There are various circumstances which point to a conclusion that the delay in relation to the statistics was not the reason for the demotion of the informant on the 22 December. Although according to the General Manager the production of the statistics had been a vital requirement for Management ever since he had been made General Manager in September 1979, he had never previously given instructions to anybody to produce them. It is relevant also that although the General Manager said that during the period between August 1980 and 22 December he had communicated through Mr. Byrne, Many deadlines for the production of the statistics, indicating to Mr. Byrne that such deadlines should be conveyed to the informant, no deadline had ever been communicated to the informant. The General Manager Said that he had no doubt that Mr. Byrne had communicated each one. There is no

indication as to what the sanction was to be for failure to

meet the deadlines. No deadline is mentioned in the letter of

Pref re en pre Re cnet eR RR rn ne re ae eee ee tte ee tte eee ce nen ~o~ we

I EE OTTER EE gh RETR Se on ten ean etre te a ety A

34.

22 December. It would seem on the evidence that Mr. Byrne was a competent officer and if there had been deadlines the probability is that they would have been communicated to the informant. Again the General Manager said that although he Saw the informant from time to time in the corridor he did not ever speak to him about the statistics because he was leaving it to Mr. Byrne as head of the section to attend to the matter. But if the statistics were so vital it is strange that the General Manager, being, on all other counts, on good terms, and even the customary christian name terms with the informant, never on any occasion asked the informant how he was progressing with the statistics. And there is no suggestion anywhere that the General Manager ever put pressure upon Mr. Byrne himself as head of the section to ensure that the informant produce the statistics. I do not believe there

were any deadlines.

The notion that the informant would decide to defy the General Manager in a matter regarded by him as vital was of course quite absurd. From the effort put into the job by the informant it is clear that he was doing everything he could to ensure that at the end of the probationary period it would be clear to all concerned and especially the General Manager that he was a most efficient senior revenue clerk and

fit for permanent appointment to that position.

The letter of 22 December was delivered by Mr. Byrne

35.

to the informant. They went through it together. Mr. Byrne said to the informant "You have got that case going through which Tom does not go all that much on". He also said, "Oh yes, we have no complaints regarding your work, but that stuff that Tom asked you to get out has not been forthcoming.". They then discussed the reasons for that as referred to above, and the fact that the day before the informant had said it would be ready in a week. There may have been room for criticism of the informant as to the delay in producing the Statistical information, but in the light of the foregoing I do not accept the evidence of the General Manager that the one and only reason for 'termination of the informant's occupancy of the position of acting senior revenue clerk was that he had failed or refused to perform the task of collecting and

presenting the statistical information.

In the search for the real reason it is hardly to be found in any considerations of managerial advantage. There was no real point in removing the informant, in breach of the terms of his appointment, a mere six weeks or thereabouts before it would have expired according to its terms. The informant, admittedly, was performing well in the position in all respects save the production of the statistics and to send him back to the office of pay clerk was to place him in close contact with the drivers again. , And to terminate his appointment contrary to its terms was certain to rouse

feelings of resentment. The General Manager was well aware

36.

that the informant would "sound off" on the matter of his

demotion.

I think the real reason for the demotion is to be found in the informant's insistence on his award entitlement. The appointment was an acting one, it was at a rate of pay according to the General Manager's opinion of work value rather than the award rate, and the tasks allotted were in excess of those specified in the relevant duty statement. It implemented the "flexibility" which the General Manager had been claiming throughout the controversies of the previous twelve months. It would be satisfactory to management that the informant accepted such terms. But he did not. He failed to respond to his promotion on the terms offered, remaining his difficult self, not only asserting his rights under the award but going to the length of getting the Union to take the

Trust before the Commission where the practice of the General

Manager's policy of "flexibility" would be called in question.

In such circumstances the General Manager might well feel disappointed and frustrated. The informant's action was

a direct challenge to his management style.

The General Manager had a staff structure which was out of line with the fourteen year old classifications in the award. Although this might have been inconvenient in some

respects, it did enable the General Manager to allot duties

nn ne er _ —- a _—— — ee

FN OE a A eH ~~ eee wees ——, ~

37.

and fix rates of pay on an individual basis giving him great flexibility and authority. The advantages of this "flexibility" were greatly valued by the General Manager. It was seen aS helpful to him at a critical period in the Trust's affairs, and generally in his efforts to reorganize it, after a period in which it is suggested that there had been a run down in efficiency. In these circumstaces it would not be surprising that thought was given by management as to what might be done to preserve the Trust's flexibility in management and organization of the staff. There was little to be done other than to put the case to the Commission as Mr. Adkins did in fact put it as hereafter set forth. In the light of my assessment of the General Manager's methods of thought it would not be surprising that he would think that some ofthe signficance might be taken out of the case if the informant were no longer entitled to the award rate in question and was in a different position where he was receiving the award rate.

It is my view therefore, not only as a result of the application of the terms of s.5(4) of the Act, but also on the probabilities, that in deciding to demote the informant the General Manager waS actuated by frustration and annoyance that the informant was entitled to benefits under the award, that he proposed to appear aS a witness to give evidence in the proceeding initiated by the s.25 notice, and that being a

member of the M.O.A. which was seeking better industrial

38.

conditions in the sense mentioned above, he was dissatisfied

with his own.

I turn now to the dismissal of 23 December 1980. As anticipated by the General Manager the informant did "sound off" concerning his demotion. It so happened that at lunch time on 23 December one Ewing sat with him as he was concluding his meal. Ewing was a person with university qualifications who did part time work for the Trust and was a friend of the, planning officer and an acquaintance of Mr. Byrne. The 'informant complained to Mr. Ewing about his demotion, spoke of management as providing jobs for the boys, referred to the appointment of the planning officer in terms suggesting that it came about as a reward for services rendered by him in circumstances of some breach of confidence in another capacity. He criticised the payment by the Trust of the air fare for that officer and his wife on their honeymoon in Perth. He referred to Mr. Byrne as the General Manager's "hatchetman". Mr. Ewing said that the informant applied the expression "corrupt". Mr. Ewing passed the contents of this conversation to Mr. Byrne who apprised the General Manager who apprised the planning officer. The planning officer confronted the informant who conceded that he had in substance said of the planning officer what was alleged. It appeared that the honeymoon was in Perth where the planning officer went on a mission for the Trust, the Trust paying his fare and

for some accommodation but not for his wife's fare. The

pret me er rome a ane een -- -_—

ee eae STOO ORES eee Dag

Te

39. >

informant offered an apology and also to apologise to the General Manager. This- was conveyed to the General Manager. The latter telephoned Mr. Ewing who confirmed what he had told Mr. Byrne. The General Manager decided not to give the informant an opportunity to explain or withdraw or apologise. He held a meeting with Mr. Adkins, Mr. Byrne and Mr. Ling, the Engineer, and they concurred in the General Manager's decision to dismiss the informant without further enquiry. A letter signed by the General Manager dismissing the informant as from the close of business on 23 December was delivered to him late

in the afternoon that day.

The informant sought an interview with the General Manager but none was granted. He asked Mr. Adkins the reason for his dismissal and Mr. Adkins said "ring me tomorrow". On the morrow Mr. Adkins said that he was dismissed because he had developed an undesirable personality over the past twelve months. The informant protested that in view of his promotion and being put in charge of five people during that time he

could not have had such a bad personality and there must be

something else. Mr. Adkins replied "Ah well, that is what it

is.".

The General Manager explained the lack of stated reasons for the dismissal that he did not wish to recite the allegations of the informant. This may be understood

especially in view of the General Manager's acknowledgement

et nen me ee ne cee et pe eae —, -- ewe a

40.

that there was an element of twisted truth in them. Enquiry might have revealed that with a suitable retraction and apology the making of the allegations might have been seen in a slightly less serious light, but nevertheless, had the General Manager stated to the court that the making of the allegations was his reason and his only reason, that could well have been understood. A dismissal proceeding by reference to such a reason would not offend the provisions of

s.5 of the Act.

But the General Manager did not say that the making of these statements was the only reason actuating him in dismissing the informant. He said "taking all circumstances into consideration but particularly in reference to those allegations and also to his poor performance in that job, as far as. I was concerned, that I would terminate his employment." When asked in cross examination what reason he gave to Messrs Adkins, Byrne and Ling for proposing to dismiss the informant he said "The reasons were that I was fed up with the performance of his work and they had background information of what he was like anyhow, so we did not have to go into all that and we went into the allegations of corruption that he had made. I said that I was fed up, or

something to that effect." Again in examination in chief

being asked as to the allegations, he said -

"...I related the events with regard to the » allegations that were made. There was

pre pe ae eet

41. >

discussion about Mr. Childs, bearing in mind that my departmental heads knew what Mr. Childs was like, that we do not have to sit down and have a great case history on Mr. Childs. I said that that was my intention, did anybody have any objections; anybody want to raise anything, and they ail wholeheartedly agreed with my decision."

and in cross examination there is the following passage,

"t was fed up with him. He was not performing his job and then when he is reverted to his position he decides that he is going to make these sorts of allegations as a public officer I am very, but reasonably, sensitive to such allegations that affect anybody in my organization."

oe

It is worth noting that on each occasion when the General Manager spoke of the effect upon his mind of the making of the allegations he always referred to his concern that they had reflected on two members of his staff. He never

mentioned any concern about their reference to himself.

In determining whether the defendant has carried the onus of proof that in dismissing the informant it was not actuated by any of the circumstances specified in s.5(1) of the Act, I have before me the assertion of the General Manager to that effect and his assertion that he was actuated not only by the allegations made by the informant but also, all the circumstances including his work performance. It is clear that the General Manager relied on some circumstance or circumstances outside the making of the allegations. I

consider these factors in the light of all the surrounding

Set ne mn gto eee emma aerate Sm

42. circumstances.

On 22 December the General Manager had decided to demote the informant back to his grade 2 position. He knew that the informant was dissatisfied with the absence of reasons satisfactory to him for the demotion and was dissatisfied with the grade 2 award rate for the pay clerk position. Although the informant had not been so busy as a union activist since the talk to him in May, his demotion and the circumstances thereof were quite likely to result in a resurgence of that kind of activity. He knew that when in action the informant was fearless and determined. Already he was attacking the "acting" designation of positions. And it was not a small matter that he was still pursuing the proceedings under s.25 of the Act.

For reasons discussed elsewhere the General Manager's assertion that the alleged work failure had anything to do with the demotion is not to be accepted. The question therefore arises whether his assertion is any more acceptable when he excludes from the matters actuating him in the dismissal, the unformant's membership of the Union, his entitlement to benefits under the award, his proposal to give evidence and the union claim for better conditions and the informant's dissatisfaction with his own. The answer to this

is in the negative. As to the dismissal it is a question

whether on the whole of the evidence the proper inference, as

¥

43.

on a balance of probabilities, is that circumstances (a), (b), (c), or (d) set out at. the commencement of these reasons for judgment, or any of them, did not actuate the defendant in deciding to carry out that dismissal. I am not satisfied that this inference arises from the evidence. The probabilities

point, I think, in the other direction.

There is an apparent but not real incongruity in the dismissal of an employee for the reason that he is a member of an organization when it was a term of his employment that he should be such a member. 'The Trust policy contemplates that membership of the Union will normally be quite acceptable to the Trust. But it is consistent with this that the quality of being a member of a Union in the case of a particular employee may become unacceptable to the Trust. This will occur when a

member exercises his rights as a member in a way which is 'objectionable to the Trust, for instance by promoting burdensome claims or creating restlessness within the establishment. It is because of his capacity to stir up trouble and the continuing threat of more trouble while he is an employee and a member of the Union which may make it

undesirable in the eyes of the employer to continue to have

him on the staff. It was said by Mason J. in General Motors

Holden v. Bowling (1976) 12 A.L.R. 605 at p.617:-

"Once it is said that the appellant dismissed him because he was deliberatly disrupting production and was setting a bad example it is not easy to say without more that this had nothing to do with

Fete na ot eta Ne reer ED te rn en a ee a me an: en me ee ee ee

were

Fn gare Pe nn mT Rt generat cee Son men me pe

44,

his being a shop steward. Although the activities in question did not fall within his responsibilities as a shop steward his office gave him a status in the workforce and a capacity to lead or influence other employees, a circumstance of which the appellant could not have been unaware. It would be mere surmise or speculation, unsupported by evidence, to suppose that the appellant's management, if concerned as to the bad example he was setting, divorced that consideration from the circumstance that he was a shop steward."

These comments were made in relation to a shop steward. The same considerations are applicable to a dismissal of a mere member of a Union if he is using or is likely to use his capacity as a member to lead or influence other employees in what are regarded as unacceptable causes. In this case the capacity of the informant to do this was not to be doubted.

As was said of the shop steward in Cuevas v. Freeman Motors

(1975) 25 F.L.R. 67 at p. 78 in a passage which is just as

applicable to a mere member as to a shop steward, as follows:-

"There are, of course, active shop stewards and passive shop stewards. It is apparent that an active shop steward may be responsible for recurring incidents irritating to management and creating in the mind of the employer a desire to be rid of the employee because although otherwise he may be a satisfactory workman, nevertheless as a shop steward his capacity for stirring up what the employer regards as trouble is to the employer quite intolerable.

If, in such a case the employer dismisses the employee not because of any particular item of conduct but because of his propensity as such to stir up such trouble then, in our opinion, the dismissal must be characterised as a dismissal arising by reason of the circumstance that the employee is a shop steward."

og a ee ee cn oe a ete re a sent eee ne ane ate rere te fan

< 45.

The evidence of the General Manager denying that the defendant was activated by the circumstance that the informant was a member of the M.O.A. or was entitled to the benefit of the award, or proposed to appear as a witness in proceedings under the Act 1s evidence upon which I am unable to rely. That of Mr. Adkins was also unhelpful. In giving his evidence his main anxiety seemed to be to avoid saying anything. that might possibly assist the informant. AS a result his evidence abounded with passages in which after giving some answer he was persuaded after a few questions that the contrary was the truch. But the relevant mind was that of the General Manager. It was his decision in which Mr. Adkins Mr. Byrne and Mr. Ling were concerned. It was his initiative for whatever reasons were good to him that was accepted by the others.°* Also, notwithstanding that he was a member of Management who voted to dismiss the informant he was insensitive to any question of propriety or even of taste in taking four proxy votes to a Union meeting and thus delivering

five votes in favour of the Union refraining from bringing

these proceedings concerning that dismissal.

The matters mentioned above which must have presented themselves to the General Manager, as factors which rendered the demotion of the informant good for management and the Trust, were also relevant when the dismissal was decided upon. The prospect of having the informant not only an active

member of the Union but one with a real sense of grievance

nee ren SR ME HOT RRR, 8 eR Te ERR ER RD EGE S Sm NEN ONORE = ne SE RRR en canner ete ne Tr ee ee rr

aan pe ee whe

pedteten ae Ya ee we - ee

oe:

46,

could not then have escaped notice by management. But there were no reasons for dismissal on 22 December. However, that changed on 23 December. The possibility that the General Manager welcomed the events of 23 December as providing an opportunity to get rid of the informant as a troublesome union member insisting on the strict observance of the award and likely to be an irritant in the future is a strong one. There was a serious prospect that so long as the informant was on the staff and influential in the Union he would be active in seeking change in various aspects of the Trust's management practices, and even the issue of the General Manager's double

positions of General Manager and Chairman of the Board.

This matter had already been canvassed by the informant in the Union and the General Manager had shown much sensitivity thereto. He would not relish the presence on the staff of a strong unionist working to change that situation. Added to that the s.25 proceeding already taken by the informant was obviously of serious concern to the General Manager. He denied this but it is clear from the statements made at the hearing of the s.25 proceeding both by Mr. Adkins and Mr. Byrne that it was regarded by them as no light matter.

Mr. Adkins said that the Trust management —

MR. ADKINS: Mr. Commissioner, the trust Management is rather perturbed by the fact that the Municipal Officers' Association saw fit to bring a matter of this nature before

the Commission at this point of time. As you are aware, sir, commercial and

OP rent ie ay erin ae re ern mr cee te ee =< - a ee en rns eer 8 ee

ee tee te,

47.

industrial interests in Australia have been enforced to apply modern techniques to their organizations in order to compete satisfactorily with industries of a like nature in other countries. This updating process is now commencing to flow through the public sector of Australia.

Over the past decade the trust is now facing an ever-increasing annual deficit, and to remain a viable organization it must introduce, where practical, any technical equipment and methods to its operations which will assist in containing its deficit. The government is currently pre-allocating ministerial responsibility resulting in some government department instrumentalities being amalgamated. To date, the trust has been able to retain its independence.

Approximately 18 months ago cabinet appointed Mr. T. Maclurkin as general manager of the trust and one of his first duties was to review and update where necessary, the technical and administrative procedures. By introducing modern methods into the system, workloads of many of the Classified salary positions had been markedly changed and at this point I would draw to your attention that the classification list in the present award has been in operation since 5 February 1967, nearly 14 years.

Further, it has become the practice, when a

'classified position came vacant, to appoint

an officer in an acting capacity and pay higher duties as permitted under clause 22 of the award in order to ascertain whether the officer concerned has the capacity to carry out all the duties required by management.

This dispute centres around two important facets of industrial relations, the first relates to whether management is permitted to aply the term acting to a classified position on a temporary basis and depending on the degree of responsibility required of the appointee, a salary set at a lower range

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oo 48.

to that of the permanent position and provided for under clause 22 of the MTT sub-branch MOA award as amended C.No.185 of 1979.

In a small organization many of the classifications are formulated not only on the work value study but the aptitude of a present occupant is also taken into account. The difficulty then arises that when the position becomes vacant an assessment of the actual value of the duties must be taken in comparison with those of other award classifications. In summing up, management, in aJl good faith, is upgrading the standard of its administrative staff. Many officers have already been upgraded and at the same' time is adjusting Salaries, where appropriate, for services rendered.

However, if it is ruled that the trust must adhere to the payment of salaries according to the classified list to personnel

' appointed in a temporary capacity with limited qualifications experience, the trust will have to make other arrangements when filling senior positions.

The following passage took place between Commissioner McLagen

and Mr. Byrne:-

THE COMMISSIONER: Yes. what appears to me to be a simple case of saying, was the man paid for his right position or was he not according to the terms of the award, now becomes a very complicated case because both of you are saying, well, maybe the classifications of the award do not suit the needs of the trust. Maybe we should have got together and discussed it and I think maybe that is what should happen eventually, but anyway, you continue.

MR. BYRNE: Well, the point I was making was that ~- and I take your point that management and the union should get together - and just to rebut one thing in relation to this, Mr. Hand did read out his letter that he wrote

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49.

to the trust and he said that was never answered. Granted it was never answered by letter but a few days after that Mr. Hand spoke to the Chairman and received a full answer. But we did not expect that we would have to appear here. We expected that eventually a board of reference would eventuate, but suddenly we had a dispute, a registered dispute."

Mr. Adkins and Mr. Byrne were the two most senior officers of the Trust next to the General Manager. What they said to the commissioner was not "ad libbing" as the General Manager had said. They had prepared their statements. The General Manager said he was surprised at what Mr. Adkins and Mr. Byrne had said, but it is impossible to doubt that the Trust, including the General Manager had to say the least, a real reluctance to an official discussion in the Commission concerning its practice of downgrading or reclassifying positions according to wage and other specifications laid down by the Trust and using acting appointments with a view to

avoiding paying award rates applicable to various

classifications.

The reason for such reluctance appear from all that Mr. Adkins and Mr. Byrne said and also from the defence of these practices expressed in evidence in this Court. Although the General Manager indicated that when he read the remarks of Mr. Adkins and Mr. Byrne he was very surprised, there is no suggestion that at any time he had asked them how they came to make them. I would attribute his alleged surprise to his

unwillingness to admit that the s.25 proceedings caused him

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50.

the slightest concern. And there is the word of Mr. Adkins that the General Manager was concerned that the informant had proceeded by way of s.25 of the Act and not by an approach to a board of reference.

It is my view that to the General Manager it would have seemed a good thing, so far as the s.25 proceedings were concerned, that the informant should have ceased to be an employee of the Trust. It might well have seemed to the General Manager that just as the s.25 proceeding would lose some of its sting if the informant were back in his oid position at an award rate so it might be less significant if

the informant were no longer an employee.

It is unfortunate that I have been unable to rely on the evidence of the General Manager in a number of matters. He gave the impression in the witness box of one slightly aloof. Sometimes his manner verged on the patronising and at other times there was an attitude of unreal subservience. He was evasive in many answers. It may be that he had persuaded himself of the validity of his assertions even in the face of

objective difficulties. But essentially his demeanour was

unconvincing.

I found the informant a truthful witness, essentially straight forward, facing every question. I think

he exaggerated the influence which ineffic1ent machinery

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played in the delay in producing the statistics, and I think he probably did use the word "corrupt".

qualifications I accept his evidence as a true account of the

51.

Matters to which it relates.

In the end I am unable to find that the defendant

has established as on a balance of probabilities that:-

(a)

(b)

in altering the position of the informant

to his prejudice on 22 December 1980; or

in dismissing the informant on 23 December

1980,

the defendant was not actuated by the

circumstance that:

(i)

(ii)

(iii)

the informant was entitled to the

benefit of an award;

that the informant proposed to appear and give evidence in a proceeding

under the Act; or

that, being a member of an organization which was seeking better industrial conditions the informant was dissatisfied with his conditions,

and

Subject to these

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52.

fc) in dismissing the informant on 23 December 1980 the defendant was not actuated by the circumstance that the informant was a member of the Municiapal Officers' Association.

Accordingly, the defendant must be convicted on each of these charges and in respect of each is fined $400. The informant has announced that he does not seek an order for

reinstatement. However I reserve liberty to apply in respect

of any other relief to which the applicant may be entitled.

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