Blair, W.D. v. Australian Motors Industries Ltd [1982] FCA 145

) V.No.13 of 1981 VICTORIAN DISTRICT REGISTRY } V.No.14 of 1981 )

Section 5(1)(e) of the Conciliation and Arbitration Act (the

(1) An employer shall not dismiss an employee, or injure him in his employment, or alter his position

to his prejudice, by reason of the circumstances that the employee-

(e) has absented himself from work without leave if-

(1) his absence was for the purpose of carrying out his duties or exercising his rights as an cfficer or delegate of an organization; and

(ii) he applied for leave before he absented himself and leave was unreasonably refused or withheld;

By two separate summonses upon information dated 4 September 1981, Australian Motor Industries Limited (the defendant), a company duly incorporated,is charged with first that contrary to s.5(1)(e) of the Act it did on 2 July 1981 injure one Paul Rodney Bicknell an employee of the defendant in his employment by reason of the circumstances that on that day he had absented himself from work without leave, his absence having been for the purpose of carrying out his duties or exercising his rights as an officer or delegate of the Vehicle Builders Employees Federation of Australia, (the organization), an organization of employees registered under the Act, he having applied for leave before he absented himself and such leave having been unreasonably refused or withheld; and secondly that on that date it did contrary to s.5(1)(e) of the Act alter the position of the said Mr Bicknell as such employee to his

prejudice by reason of the same circumstances alleged in the

The informations were laid by Wayne Douglas Blair the secretary of the Victorian Branch of the organization and the

summonses upon such informations are properly before the Court:

see s.13(b) of the Crames Act (Cth) 1914 and ss.191 and 118D of

the Act. The defendant pleaded not guilty to each summons and

The prosecutor's case (the facts of which have been

proved beyond reasonable doubt) is that Mr Bicknell, then being a delegate of the organization, namely a shop steward, was approached at about 11.35 a.m. on the day in question by a fellow employee-member, one Harold Norman Irving concerning what Mr Irving believed was a "safety problem" in regard to his jcb on the metal finish line in No.4 Metal Shop at the defendant's premises at Port Melbourne. At that time Mr Bicknell was working as a spot-welder on the jig line in that shop. The two

lines are separate and aithough under the one roof are some

Each line was supervised by a different foreman, the foreman of the jig line being a Mr Reno Abdilla. An assistant

Production Manager, Mr Barlow, who occupied an office within the

Shortly after being approached by Mr Irving Mr Bicknell sought permission first from Mr Abdilla and then from Mr Barlow to leave his job and to go over to the metal finish line to see what it was that was causing concern to Mr Irving. Permission was refused by both Mr Abdilla and Mr Barlow as Mr Bicknell was unable, when requested, to inform them what it was that was

causing concern to Mr Irving, he, Mr Bicknell then being unaware

of the details thereof. Mr Bicknell then made a reguest of Mr Barlow that he be permitted to leave his place of work so that he might proceed to the personnel office and speak with the defendant's industrial officer Mr Weldon. Mr Barlow refused this reguest but informed Mr Bicknell that he would phone through and arrange for the industrial officer or one of his assistants to come over from the personnel office to No.4 shop. Thereafter a similar request was made by Mr Bicknell of Mr

These requests, it was claimed, were made at about 11.45

a.m.. As no one from the industrial office had come to No.4

shop by 12.25 p.m. Mr Bicknell spoke to both Mr Abkdilla and Mr

Barlow and informed them that he was leaving his job and going to speak with the industrial officer about the matter. The luncheon break was due at 12.30 p.m.. Mr Bicknell then spoke to the industrial officer in his office and informed him of all the circumstances referred to above and then proceeded to his lunch. At the conclusion of the lunchecn break at 1.10 p.m. Mr Bicknell resumed his duties on the jig line. At the afternoon smoko at 2.18 p.m. he was asked to go into Mr Barlow's office with the senior shop steward, a Mr Thompson. Almost immediately after

entering the office Mr Barlow handed him a typed "first-warning"" letter signed by Mr Weldon. This letter is set out later

Each of the persons referred to gave evidence, Messrs.

Bariow, Abdilla and Weldon being called by the Gefendant. In

addition the certified rules of the organization and the

Certain employees of the defendant company, including those who are members of the organization, have been employed under and in accordance with an Award made under the Act known as the Australian Motor Industries Limited Vehicle Building

Award 1976 (as varied) (the award). The award binds the

defendant company as to all its employees and certain

organizations, including the organization and their members.

35 - SHOP STEWARDS, SENIOR SHOP STEWARDS AND GRIEVANCE PROCEDURE

An employee appointed as a shop steward in the shop or department in which he is employed shall upon

notification thereof by the responsible officer of the union concerned to the employer be recognised

as the accredited representative of the union to which he belongs and he shall ke allowed the

necessary time during working hours to interview his employer or his representative on matters affecting employees whom he represents.

(a) Grievance Procedure Notwithstanding anything appearing elsewhere in

this clause the following grievance procedure shall apply in the event of a grievance being raised by

(1) The employee should normally advise his supervisor of his problem or complaint but

alternatively he may elect for personal reasons to have his shop steward take up the problem or complaint on his behalf.

The supervisor of the employee concerned will then endeavour to solve the matter within his supervisory capacity.

employee/Shop Steward should seek approval from the supervisor to interview the

Industrial Officer and permission to do so will be granted.

If the employee initially elects to complain to his supervisor and subsequently is not

satisfied he may request his Shop Steward tc represent him before the Industrial Officer.

In this case he must seek and will be granted reasonable time from his supervisor to

privately acquaint his Shop Steward of the details of the matter to be discussed. (1ii) ......200.

During 1980 members of the organization employed by the defendant company withdrew their labour. The dispute was resolved following conferences between representatives of the defendant company and the organization before a Commissioner of the Conciliation and Arbitration Commissicn. The particular dispute at that time had arisen following the dismissal of certain employees of the defendant company. One of the terms of settlement of the dispute was the introduction of a system whereby employees were to be given warnings in relation to

particular conduct such as absenteeism, lateness for work,

lateness in returning to work after morning or afternoon smoko

breaks, leaving their place of work without permission and other

matters which are not relevant to the present matter. For such offences employees were to be entitled to two warnings with the understanding that if such conduct occurred again then the employee could be dismissed at the discretion of the employer. The said agreement also made provision for a single warning system following conduct of a more serious nature and also a

provision for summary dismissal for very serious misconduct.

A copy of such agreement was not before the Court. The

evidence 1s such that the Court is unaware whether the said

agreement was reduced to writing and signed by the parties. The

defendant tendered in evidence, without objection, a copy of a

document (apparently prepared by the defendant shortly after the

settlement of the dispute) which had been circulated to the

defendant's foremen and supervisors. This document reads: -

misconduct, inefficiency, malingering or neglect of duty which are subject to summary dismissal by the contract of employment of the Award.

the right or the responsibility to use his judgement as to whether or not a warning i258

appropriate to a misdemeanour rather than summary dismissal.

However the system is useful in cases where the degree of misconduct or the nature of the

misdemeanour is such that the supervisor considers that it does not warrant dismissal.

The system Goes not remove the right or the appropriateness of the "casual" warning, which 1s

supervisor does not consider it serious enough to record.

1. Two warning system is applied to absenteeism, late coming, job attitude, and/or breaches of regulations, or acts not acceptable to the supervisor but not covered by 2.

2. One warning system 1s used in cases which the supervisor believes to be minor misconduct, or minor misbehaviour

(a) Where an employee has committed a breach of Company regulations or a misdemeanour, or acts in a way not acceptable to his supervisor as in 1 or 2 above the supervisor is to issue a specific warning to the employee in the presence of his shop steward. The supervisor should then advise the Industrial Officer who will issue a formal

letter of warning which the supervisor should hand to the employee.

If the shop steward is not available at the time of actual warning he must be present when the

(b) Final Warning: In cases where the two warning system applies the procedure for the second or

(c) Termination: When warnings have been given as aun (a) or (b) and the behaviour is such as to indicate that the warning(s) have been disregarded the supervisor should inform the Industrial

Officer who will advise on the appropriate action to be taken.

Should termination of employment result the employee is to be terminated in tho presence of the shop steward who witnessed the warning(s) or

if he 1s not available, the steward acting in the area concerned.

If there is doubt as to the seriousness of the offence, the matter should be referred to the Industrial Officer. In cases of absenteeism, employees must receive two warnings prior to termination action being taken.

dismissal the employee concerned should be taken to the Personnel Office by the supervisor whilst

additional facts have been proved beyond reasonable doubt:-

incorporated under the Company Act 1961 (Victoria) and able to be sved in its corporate name,

(b) The said Harold Norman Irving was at all material times:-

(c) The said Paul Rodney Bicknell was at all material times:-

(21) is an has been at all material times a member of the organization,

and (1i1) in December 1980 was elected under and in accordance with the certified rules of the organization a shop steward for members of

the organization employed by the defendant company in the No.4 Metal Shop and held that

(a) The said Wayne Douglas Blair, as a "responsible officer of the union", notified the defendant company in a letter dated 2 February 1981

that Mr Bicknell had been appointed such _ shop steward.

(e) At about 2.30 p.m. on 2 July 1981 Mr Bicknell in the presence of the organization's senior shop

steward, Mr Thompson was given a written notice on the Defendant Company's letterhead over the

signature of Mr Weldon, the Industrial Officer of the defendant company in the following form:

This letter formally advises you that you have been given a first warning for neglect of duties.

(£) The defendant conceded that a substantial and operative reason for the

1ssuing of the first "warning notice" to Mr Bicknell was his leaving his place of work at

12.25 p.m. on 2 July 1981 without permission or any valid reason.

The defendant conceded, and rightly so in my view, that the occupier of the position of shop-steward referred to in the certified rules of the organization tendered is a delegate of the organization within the meaning of that phrase in s.5(1)(e)(1) and that Mr Bicknell was such a delegate at

relevant times(see Cuevas -v- Freeman Motors Limited (1975) 25

F.L.R. 67 @ 73, Bowling -v- G.M.H. Pty. Limited (1975) 8 A.L.R. 197 @ 199; (1980) 42 F.L.R. 309 @ 311 and Hyde -v- Chrysler

It was submitted by the defendant Company that in all the

referred to in (e) above was either (a) an injury to him in his employment or (b) an alteration of his position to his prejudice;

at all on 2 July 1981 within the meaning of s.5(1)(e) of the Act;

(i2i) that, if contrary to (ii) the Court found that at the relevant time Mr Bicknell did so

absent himself from work it was for the purpose of carrying out his duties or exercising his rights

as a delegate of the organization, and (iv) that the refusing or withholding of permission to allow Mr Bicknell to go to consult

with Mr Weldon was in all the circumstances unreasonable.

The failure of the prosecutor to satisfy the Court on

any one of the above essential elements would necessarily result

in an order dismissing the information and summons in each

I am of the opinion that the facts stated above do not support a finding (1) that the giving of the "first warning" to Mr Bicknell in the circumstances referred to was either an anjury to him in his employment or an alteration of his position to his prejudice within the meaning of the Act or (11) that Mr Bicknell in the circumstances set out "absented himself from

determination in respect of the other two submissions raised by

the defendant which are set out above. The Court expresses no

opinion as to whether or not there has been a breach of the

In regard to the questions whether there was an injury or an alteration of Mr Bicknell's position to his prejudice; in my view his legal rights were the same after the warning as they were before the warning. His contract of employment remained the same; his job was the same; his wages were the same; his duties and responsibilities were the same; his status was the same; his position was the same and there was no "deprivation of any immediate practical incidents of his employment". The prosecutor argues that the warning meant that Mr Bicknell was one step closer to possible dismissal in the future and that

this effectively meant that immediately after the warning Mr

Bicknell had been injured in his employment or his position had been altered to his prejudice. This argument is rejected. Whatever may be the meaning of the phrases "injure him in his employment or alter his position to his prejudice" in the opening words of s.5(1) of the Act, I am clearly of the view

that a mere warning given in the circumstances referred to does

not so injure or alter an employee's position to his prejudice.

The relevant history of s.9 of the Act (the precursor of s.5) is that since 1904 when the Act first came into operation sanctions have been provided against an employer who dismissed an employee in certain proscribed circumstances. In 1909 (s.2 of Act No.28 of 1909) the phrase "or injure him in his

employment" was inserted whilst in 1914 (s.2 of Act No.18 of

1914. the phrase "or alter his position to his prejudice" was

added. It is clear in my view that the words were added to the

section to overcome a situation in which an employer did

something short of dismissing an employee but which was

something which could be said to be harmful to him in his

expressed by Smithers J. in Childs ~v- Metropolitan Transport

Trust (not yet reported) - Judgment 9.12.81). In that case the

defendant had been charged on 3 counts laid pursuant to s.5 of the Act namely, that (i) on 22 December 1980 it had altered the position of Mr Childs to his prejudice or (ii) injured him in his employment and (111) on 23 December 1980 it had dismissed him. Mr Childs had been appointed acting senior revenue clerk

for a probationary period of six months. Prior to such

On 22 December 1980, well within the six month period, he was informed by the defendant that on and from 5 January 1981 he was to cease holding the position of acting senior revenue clerk and return to his former position of pay clerk. It was claimed (inter alia) that the said alteration to his position resulted by reason of certain circumstances proscribed by s.5(1)

of the Act. In his reasons for judgment Smithers J. states:-

Jessup submitted that there was no case to answer in respect of the charge that on 22 December 1980

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 did 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:-

"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 of all of the circumstances set out in paragraphs l(a), (b), (c), (da) 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 s.5 cf the Conciliation and Arbitration Act 1904, and in particular the proper construction of the words 'alter his positicn to his prejudice' in the opening sentences of the section. I think it has to be observed that basically the mischief aimed at by s.5 1s 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 Act which are set out in s.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 Cone1liation and Arbitration Act, were subject to fear that they would be ainjured 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 associated with their employment.

Originally, in order to protect employees from the fear of injury in their employment, Parliament

enacted what is now s.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 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 anjure 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

The overall intention is that employees shall feel free to operate the Act without fearing dismissal, anjury 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 f1nd what those attributes are 1n any

particular case, you look at the terms of the agreement in relation to the particular

+.-IT 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 the intention and the objective of the relevant statute.

Therefore, so far as the first ccunt is concerned I am umable to find at this moment that a case to

So far as the second charge is concerned, I am unable to seé 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 aid not occasion him any im ediate loss of income. It did not mean that he did not do the same work.... I cannot help thinking that 'injure' refers to deprivation of one of the more immediate practical incidents of his employment, such as loss of pay or reduction in rank."

Turning then to the question whether Mr Baicknell "absented himself from work" at 12.25 on 2 July 1981. In my view, the expression "absented himself from work" in s.5(1)(e) of the Act is used in contradistinction to the expression "absented himself from duty" and does not cover the situation where an employee leaves his actual place of duty within the employers premises, albeit without permission, for the purpose of doing something which he believes and claims, as in the present case, is his lawful right under the Award. The phrases "absent from duty" and "absent from work" have, in my view, different meanings and are and have been for some years understood in an industrial sense to have such different meanings. A perusal of the Award itself that is applicable here (exhibit 2 ) demonstrates this (see e.g. cls. 6(b), 6(c)(1:1), 23(e), 24(e) and 27). See also the decision of Mr Commissioner

Matthews in The Food Preservers' Award, 1973 (1975) 168 C.A.R.

It is therefore unnecessary to determine, as was argued by the defendant, that sub-s.5(1)(e) was directed only to a situation where either an officer or a delegate of an organization, who is not employed full-time by the organization but is employed in industry 1s harmed in some way in his employment as a result of his attending without his employer's permission a meeting of the Union or in performing other union duties away from his employer's premises during his normal hours

of work. Sub-s.5(1)(e) would clearly cover such a situation but

the question whether the sub-section is so limited is left open.

Accordingly in my view, the prosecutor has failed to

make out at least two essential elements necessary in proving

his case with the result that both informations and summonses