Automotive, Food, Metals, Engineering, Printing & Kindred Industries Union v DMG Industries Pty Ltd

[6]

· On 29 April 1998 Mr Glavinic, in the company of Mr Krug, approached Mr Fernandes to inquire about the Union's presence in the tool room. In the course of that conversation Mr Glavinic said to Mr Fernandes words to the following effect: "If you push for the union I will sack you, do you have money to fight? The union cannot do anything for you, they are useless. If I sack you no other tool room will employ you, do you know that?" · On 1 May 1998 Mr Glavinic addressed DMG's afternoon shift tool room employees, including Mr Fernandes and Mr Mammen. Mr Glavinic's address was in the following form: "What I want to tell you I hear a lot of things here union, union, unions but I want to warn you we don't want the union here, we have been for so many years without union and we going to stay without union. If somebody is not productive and does not obey the law of the company doesn't matter you are in the union or not union we can't afford to have you here, but I tell you if you are working hard and doing a good job and everything nobody is going to sack you and we don't want to put nobody out, but please do not buggerise with the union and I am telling everyone which is in the union I will get him out from here, doesn't matter he can go to father God if he wants but he will be out from here, so I am just telling you, forget about union, concentrate on the job and nobody, I guarantee you nobody, will be dismissed from here. I want you to work as a team and concentrate on the job not thinking about the bloody union. Why you have to pay the union money, what you get from the union, you get nothing just pay them and the union leaders have a good job, a good life don't you worry. They are not wearing the dirty dust coats like you and you have to pay them with the money. For me it wouldn't make any difference if you are in the union or not the main thing is we produce, because today everything is competitive, if we can't beat the competition and keep competition we are gone, so forget about the union, I don't want to hear nothing about union. We have to work together and pull together as a team. Do we understand. Who is in the union I tell him, I'm telling him now, get out from the union, the union is not going to help you. I'm your union, I'm giving you the job and I'm looking after you. Anyone who has got a problem should come to see me through your team leaders, through your management. OK. gentlemen is it clear to everyone. OK. Thank you. I'm telling you again everyone who is in the union here is not going to stay here. One way or another he will be out and you looking for another job in another tool room if they hear that you are in the union nobody will take you, because we have enough problems to get a job, because the jobs is so competitive and is not much, not much work is around. I am telling you we are only one tool room which is very busy and we are going to be very busy, only tool room in Australia. Please listen and respect your jobs, but look after your jobs. OK, thank you, that's all I can tell you."

[20]

Penalty 13 The Court was invited by the parties to take into account, in assessing the penalty to be imposed on DMG, the matters referred to above and on which the parties had agreed and also DMG's undertakings to the Union and the Court. The Court considers it appropriate to do so. 14 The Court has also taken into account that no previous conduct of the sort engaged in by DMG and referred to in these reasons has been alleged by the Union. 15 Mr Parry submitted that one single penalty in the order of between $2,000 and $4,000 was appropriate having regard to the agreement and undertakings and to the fact that the conduct amounted to a single course of conduct extending over a relatively short period of time. Mr Parry also referred to the saving of court time which resulted from the decision DMG made, after the first two sitting days, to essentially no longer defend the proceeding. 16 Ms Melinda Richards, of counsel, appeared for the Union. Ms Richards accepted that it was appropriate for the Court to take a cumulative approach to the imposition of a penalty. However she submitted that any penalty should be in the high range having regard to the deliberateness of the conduct, the extent of the conduct (that is, five contraventions over a six week period), the damage caused by the conduct and the fact that senior management initiated the conduct. Ms Richards also referred to the public interest in deterring repetition of the conduct both by DMG and by others. Ms Richards submitted that a penalty in the order of $10,000 to $15,000 was appropriate. It was also submitted that pursuant to s356(b) of the Act any such penalty imposed should be paid to the Union. 17 Notwithstanding the submissions of counsel on the "course of conduct" issue I consider it appropriate to individually consider the contraventions of s298U of the Act which have been found to have occurred. Part XA of the Act does not contain a provision akin to s178(2) of the Act. This does not mean that conduct which properly considered as conduct adjunct to other conduct may not in appropriate circumstances result in no penalty being imposed with respect to a particular contravention. This is a standard sentencing principle. 18 It is difficult to imagine a more deliberate or serious breach of s298K of the Act than the breach committed by Mr Glavinic in his anti-union speech of 1 May 1998. Notwithstanding the lack of any previous like conduct it is the view of this Court that it is conduct which would ordinarily call for the imposition of a high penalty, save for some matters in mitigation to be considered later in these reasons. The penalty the Court would have imposed but for such matters is $9,000. 19 As Ms Richards submitted: "Being placed in fear of losing their job for the simple lawful act of joining a union, electing a shop steward and asserting their rights in the workplace is something that ought not to be tolerated in an Australian workplace at this end of the century." 20 The Court is of the view that neither should it have been tolerated at the other end of the century. 21 The intimidating words uttered to Mr Fernandes by Mr Glavinic in Mr Krug's presence on 29 April 1998 were a harbinger of things to come on 1 May 1998. The fact that they were said specifically to Mr Fernandes in a personally intimidating fashion by the principal person at DMG makes the comments all the more pernicious. It is significant that the comments were personally directed at Mr Fernandes rather than at the general workforce as on 1 May 1998. It is the opinion of the Court that a penalty of $4,000 would have been appropriate but for the matters referred to below. 22 Mr Glavinic's 15 June 1998 conduct in respect of Mr Fernandes and Mr Mammen is conduct akin to that engaged in by Mr Glavinic on 29 April 1998 and in each case deserves a penalty in the same order. 23 The conduct engaged in by Messrs Snow, Anguita and Taussig on 17 June 1998, was in context I believe, conduct influenced by Mr Glavinic's behaviour and is the type of conduct which should be considered as an adjunct to Mr Glavinic's conduct of 15 June 1998. I do not consider it appropriate to order a penalty in respect of it. 24 Absent the mitigating factors about to be addressed the Court would have ordered the payment by DMG of penalties totalling $20,000. 25 The first mitigating factor to take into account is the payment of $13,800 to the Union to ensure that it is reimbursed for the cost of initiating and pursuing the application. This reduces the total appropriate penalty to $6,200. 26 The Court further discounts the amount of $6,200 by the sum of $1,200. It does so having regard to the undertakings offered to the Union and the Court by DMG and referred to earlier in these reasons for judgment together with DMG's lack of history of similar conduct. The resultant total final penalty is the sum of $5,000. It is appropriate to impose the penalty in respect of the contravention of the Act which occurred on 1 May 1998 as, in the Court's view, it was the most serious of the five contraventions as a threat not only to Mr Fernandes and Mr Mammen but a threat to the entire DMG tool room afternoon shift workforce. 27 The Court rejects Ms Richards' submission that, in the circumstances, it is appropriate to order that the penalty be paid to the Union. As a result of DMG's undertaking to meet the Union's legal costs it will not be out of pocket by issuing these proceedings. It is inappropriate, in that context, for the Union to receive a windfall as a consequence of the payment of a penalty by DMG. 28 Section 356(b) of the Act permits any penalty to be made payable to an individual. The two individuals who have suffered the most at the hands of DMG and in particular Mr Glavinic are Mr Fernandes and Mr Mammen. Mr Fernandes seems to have been singled out for the most adverse treatment as a result of his Union activities from all those who featured in this unfortunate episode in DMG's history. 29 In all the circumstances the Court considers it appropriate to order that the penalty to be paid by DMG be paid as to $3,000 to Mr Fernandes and as to $2,000 to Mr Mammen. I note that no order by way of compensation was sought by the Union and emphasise that the payment of the penalty in the way referred to above should not be confused with the amount of compensation which may have been ordered had it been sought. Order The Court orders as follows:

Automotive, Food, Metals, Engineering, Printing & Kindred Industries Union v DMG Industries Pty Ltd - [1999] FCA 735 - FCA 1999 case summary — Zoe

At a glance

Court

Decision date

Before

Source

Judgment (27 paragraphs)

Parties

Legislation Cited (1)