Colin Keith Wood (on behalf of the Industrial Relations Bureau) v Lord Mayor, Councillors and Citizens of the City of Melbourne [1979] FCA 42

of the intention of the defendant - Injury to employee by defendant - Whether by reason of the circumstance that the employee had failed to join in industrial action - Substantial and operative factor influencing the actus reus - - Corporate decision ~ Identification of the decision-maker,

Conciliation and Arbitration Act 1904 s.5(1)(aa),(4).

COLIN KEITH WOOD v. LORD MAYOR, COUNCILLORS AND CITIZENS OF

' VICTORIA DISTRICT REGISTRY V. Nos. 1,2 and 3 of 1979

IN THE MATTER OF THE CONCILIATION AND ARBITRATION ACT 1904

LORD MAYOR, COUNCILLORS AND CITIZENS OF TH® CITY OF MELBOURNE Defendant

IN THE FEDERAL COURT OF AUSTRALIA) 3 V_Nos. 1,2 and 3 of 1979

IN THE MATTER OF THE CONCILIATION AND ARBITRATION ACT 1904

LORD MAYOR, COUNCILLORS and CITIZENS OF THE CiTY OF MELBOURNE

On 8 March 1978 one Frank Richard Kane,who was then an employee of the defendant in the capacity of a motor mechanic,was stood down by the defendant. On 30 March 1978 he was Gismissed by the defendant. By s.5(1)(aa) of the Concilia- tionand Arbitration Act 1904 (the Act) as amended by the Conciliz tion and Arbitration Amendment Act(No.3)1977 (No.108 of 1977) it is a crime for an employer to dismiss his employee or to injure him in his employment by reason of the circumstance that the employee has refused or failed to join in industrial action. There can be no doubt that to dismiss or stand down an employee is to injure him in his employment. Industrial action is defined in s.4(1) of the Act in terms which clearly include strike action. Thus s.5(1)(aa) makes it a crime for an employer to dismiss or stand an employee down by reason of the circumstance that he has refused ar failed to join in strike action. Relevant parts of s.5 are in the following terms:-

position to his prejudice, by reason of the fay ums tance that the employee - a ee {2 has refused or failed to join in industrial action;

. 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 respect of the dismissal and stand down of Kane three charges have been brought against the defendant under

s.5(1)(aa) 01 the Act. The three may be summarized as follows:-

to the provisions of s.5(1)(aa) of the Act injure Kane in his employment by reason of

the circumstance tnat he had refused or failed to join in industrial action. Particulars

The Council being bound to pay to the said Kane the wages and to accord him the conditions prescribed by the Metal Industries Award 1971, between about the Etn day or March 1978 and the 29th day of March 1978 stood-down the said Kane from his said employment and refused or failed to

pay him in the manner and at the time prescribed by the said Award or at

(b) Of Refusal or Failure to join in Industrial Action:

The said Kane refused or failed on or about the 6th and 7th days of March 1978

to join in a strike by members of the Victorian Branch of the Amalgamated Metalworkers and Shipwrights Union employed by the Council at its Green Street Depot and elsewhere. "

and 29 March 1978 contrary to the provisions of s.5(1)(aa) of the Act alter the position of Kane

that he had refused or failed to goin in industrial action, The particulars given of the alteration

to those given in V. No. 1 of 1979 of iniwury te Kane in his employment and the particulars of the refusal of " to join in industrial action are also identical

That the defendant on or about 30 March 1978 contrary to the provisions of s.5(1)(aa) of the Act dismissed Kane from his e~ployment by reason of the circumstance that ne had refused or failed to join in industrial action. Similar particulars to those in V. Nos. 1 and 2 of the refusal or failure to join in industrial action are given.

The charges are brought by one Colin Keith Wood as an officer of the Industrial Relations Bureau pursuant to the power of that body under Part VIA of the Act as inserted by s.10 of tr Conciliation and Arbitration Amendment Act 1977(Act No.64 of 197

To each of the charges the defendant pleaded not guilty.

the onus of proving that the refusal and failure of Mr. Kane

to join in strike action was not a substantial and operative factor inzluencing the defendant to take the adverse actions that it took against Kane lies upon the defendant, The defend- ant is a corporate body,the supreme authority in which is in the

• Council, meeting in business session. But much of the business of -the Council is conducted by its executive officers of whom the Chief is the Town Clerk, Mr. Rogan. The Council is responsible for the actions of those officers when they are acting within their authority. When they so act their acts,

and their relevant states of mind in performing those acts,

are the acts and the state of mind of the Council. This

is of importance in this case because the dismissal of Mr.

Kane on 30 March 1978 was the act of the Town Clerk and the standing down of Mr. Kane on8 March 1978 was,as a matter

of form, the act of Mr. Reilly the Deputy Town Clerk,although as appears below, the probabilities are that in substance it was tne act of Mr. Rogan. It is clear that at all material times

Kane, to the knowledge of the defendant, had both refused and fail to join in industrial action. The fact that for the first three

days of the strike Kane had joined in such action is irrelevant.

From 6 March 1978 he refused and failed to remain on strike

in conjunction with his fellow employees. The strike continued from 1 March until 31 March 1978. The critical question before the Court is whether in dismissing Kane or standing him down the defendant did so by reason of the

circumstance that Kane refused and failed to goin in that strike

It is necessary to consider what is involved in the conception of refusing or failing to join in industrial actior. Section 5(1){aa) being a statutory provision creating a crime, all the elements of the crime must be

rtained upon a proper construction of the words used by Parliament. Those words indicate that the crime is committed when an employer has dismissed or otherwise injured the employee in his employment "by reason of the circumstance that the employee has refused or failed to join in industrial action". In construing these words special consideration is necessary to the meaning of the expressions "refused to join" and "failed to join". What is wrapped up in the word "join" is of special significance, Section 5(1)(aa) contemplates that the employee might have joined with others in industrial action taken by employees acting in concert, The significance of the word "join" is that it indicates the relevant refusal or failure is a refusal or failure to enter into the implied agreement with fellow employees involved in participating in

In my opinion,upon the proper construction of s.5(1)(aa),the concept of dismissing an employee or

injuring him in his employment by reason of the circumstence

that he refused or failed to join in industrial action involves more than dismissing him merely because he con- tinues to perform his duties in his employment when

others are, for instance,on strike. It involves that

the employer has something more than that in his mind as

a factor influencing him to dismiss or take other action against the employee. That something more is that the employee has not "joined" in, for instance, the strike. On this basis a dismissal in contravention of s.5(1)(aa) 1s one carried out as a reaction not only to the employee continuing to work but also to the aspect of his conduct

in his not joining in the strike, not consenting to be a participating member of, so to speak,the team composed of the other employees acting in concert in the industrial

There is considerable authority as to what is necessary to satisfy the critical requirement of s.5(1) (aa) that the adverse action taken by the employer is taken "by reason of the circumstance" that some specified event has occurred, It is clear that the requirement is not satisfied unless the specified event is a substantial and operative factor influencing the employer to take that adverse action. If this requirement is satisfied it is not to the point that other factors were also substantial and operative factors. See Mikasa (N.S.W,) Pty. Ltd. v. Festival Stores (1972) 127 C.L.R. 617, General Motors-~ Holdens Pty. Ltd. v. Bowling (1976) 51 A.L.J.R. 235 particularly

per Mason J, at p. 241, Roberts v. General Motors - Holdens

Employees' Canteen Society Inc. (1975) 25 F.L.R. 415 and Cuevas v. Freeman Motors Ltd. (1975) 25 F.L.R. 67.

It is convenient at this stage to give consideration to the statutory presumption arising from s.5(4) of the Act. As originally enacted s.5 was directed to the protection of employees from dismissal or other injury in their employment, at the hands of employers who disapprovedof employees being unionists or engaging in union activities, no matter how legitimate, It was recognised by Parliament that an employee who suffered dismissal or other injury in his employment because of his union membership or union activities would be in great difficulty in proving that fact in the absence of special evidentiary provisions. Accordingly Parliament enacted s.5(4) which imposed on an employer, against whom a dismissal or other injury of a unionist was proved,the burden of proving that the action taken by him was not taken by reason of the employee's union membership or activity. In sucha case the presumption sits comfortably alongside its basic assumptions namely that it is probable that some employers would take hostile action against active unionists and that in any particular case there would be difficulty in proving that the dismissal, or other hostile action, was taken because the employee was an active unionist.

But it sits less comfortably alongside para.(aa) of s. 5(1) because in general it is unlikely that any employer will dismiss or take other hostile action against an employee because he has refused or failed to join in a strike or other industrial action. There is ordinarily no inducement to an employer to dispose of any employee who continues to work when others go on strike. But there is the possibility that there will be union pressure on the employer to dismiss or otherwise injure the non-striker in his employment. Such pressure may well take the form of a refusal to negotiate a settlement of

the strike unl2ss the employer takes action and the employer

may well submit to that pressure. The reason for such

pressure would normally be union resentment against the employee for not acting in concert with the strikers. But even if

the employer does bow to that pressure there is little likelihoo that his dismissal of the employee will be actuated by the reason which actuated the union. The actuating reason will be to placate the union. The reasons producing hostility

in the union against the striker are unlikely to be those

ammn Tavan on j th eour Ba ther asanton c leyce even in the cour oS wit UNLON

pressure. And in any event to dismiss an employee merely

to placate a union would not be a contravention of s.5(1)(aa).

It is apparent therefore that,in a case like the present, there is an element of artificiality in the statutory presumption arising from s.5(4). Accordingly, it is the more readily displaced. vhenthe defendant contends that what the statute prima facie presumes is not the fact,he is

When the strike commenced on 1 March 1978 Kane was a member of the AmalgamatedMetal Workers and Shipwrights Union (A.M.W.S.U.) to which his fellow employees of his category belonged. But he resigned five days later in circumstances which gave rise to criticism and&rimony as between himself and the Union. Before the strike had started a meeting was held tc consider strike action in support of a log of claims. Kane and a number of other

employees opposed such action and it was decided to hold a

secret ballot. Kane acted as scrutineer, He said that the question on which the ballot was held was whether a further secret ballot should be held on the question whether the employees should actually go on strike. The result of the ballot was 25 affirmative and 11 negative votes, It appears that on this result being announced the employees acted as if the question voted on had been whether actually to go on strike. Accordingly, the affirmative vote was treated as a vote for the strike. All employecs including

On 6 and 7 March Kane reported for work and thereafter until he was dismissed he was to the knowledge of the defendant, ready and willing to perform his ordinary

The fact that Kane failed to goin in the strike after

6 March contributed, directly or indirectly, to various consequences :-

(a) certain members of the Union developed a strong

(b) on 7 March unionists established picket lines to obstruct Kane in his approach to his place of work at the Green Street garage in North

(c) by 8 March the Municipal Employees Union (M.E.U.) had declared black the Green Street garage where

at that depot by the apprentice,who was exempt from

(d) by 8 March the tool shop and parts store was declared black by the Municipal Officers Association

(e) in the week ending 10 March the drivers of all the seventy-nine cleansing vehicles of the defendant returned such vehicles as unserviceable

(f) by 8 March the M.O.A. and M.E.U. had declared support for the strike at the depot and a claim of the three Unions - A.M.W.S.U., M.O.A. and M.E.U. or their members that Kane be dismissed

(g) a reasonable fear arose in the defendant that to permit Kane to attempt to do any work on any vehicle in the garage would lead to an indefinite

of the employees including Mr. Halfpenny, the Victorian Secretary of the A.M.W.S.U.,as a result of

It is convenient to observe that although it is a crime to stand down an employee by reason of the circumstance that he has refused or failed to join in strike action, it is not a crime under the Act, at any rate, to dismiss an employee by reason of the conduct of other persons, although that conduct may have been induced by the employee's refusal or failure to go on strike. And in the situation which arose out of Kane's refusal and failure to goin 1n the strike, Mr. Rogan ,the Town Clerk, had clearly in his mind the distinction between his and the Council's attitude to Kane's conduct and the attitude of the Unionsto that conduct, So far as Rogan was concerned he had no antipathy to Kane for failing to

stay on strike and indeed was sympathetic to him and the

principle of personal independence by which he appeared

to be influenced. It was Rogan's view that the Unions' attitude to Kane was determined largely by Kane's failure to remain on strike, his resignation from the Union,

and the alleged circumstances thereof, But equally clearly Kane's failure to remain on strike was in itself action

in respect of which Rogan had no criticism. The defendant desired that none ofits employees should be on

So far as the dismissal is concerned it appears that at an early stage of the strike Rogan realised that there was considerable opposition on the part of the Unionists employed by the Council, not only members of the A.M.W.S.U. but also of the M.E.U. and the M.0.A.,to returning to work alongside Kane. By 15 March, after a conference with representatives of the A.M.W.5S.U., Mr. Rogan had realised that opposition to working with Kane was hardening. According to Rogan, Mr. Halfpenny reported that two different groups in his Union had rejected any possibility of working with Kane in the

future. On the afternoon of 29 March,Mr. Halfpenny attended

a Council meeting, at which according to Rogan, there was a discussion of the general situation, the log of claims and whether the men would work with Kane. Mr. Rogan had been working diligently to bring about a compromise whereby Kane might be moved te another department, and this compromise had been discussed more than once. However, Mr. Rogan said that at this Council meetin; Mr. Halfpenny reported that there had been a leak of the proposed compromise and his members had rejected it. wee

"So far as Mr. Rogan was concerned he came to the conclusion at that stage that the compromise, for which he hoped and worked,was simply not attainable. It was his belief that Council members were of the same opinion and that there was a general view in Council that, because of the health situation in the city, Kane would have to be dismissed. He said that at the Council meeting Mr. Halfpenny had explained to Council the reasons why, as he understood it, the membership would not work with Kane. Council passed a resolution referring to the Staff Boara consideration of the continuance of Kane's employment, with an intimation that if Kane failed to refute Halfpenny's allegaticns it should dismiss Kane. On Thursday 30 March Kane attended the Staff Board meeting which after questioning him decided thet he had not failed to refute the allegations of Halfpenny and accordingly it had

no authority to dismiss him. Ac this stage Rogan considered

that as Chief Executive Officer of the Council it was his

duty to deal with the situation on his own initiative.

The engagement of staff of Mr. Kane's category and the termination of the employment of such staff were ultimately matters in his area of authority. He knew that he had

taken every step possible to continue the employment of Kane in some area of the Council's activities and believed that while he persisted in such efforts the men would not return

to work and the health situation in the city would continue to deteriorate alarmingly, He believed that it was the view

of Councillors generally that Kane had to be dismissed

so that the strike could be settled. As that was his own

view he concluded that he must dismiss Kane himself, that

is, that he must himself order the dismissal. He told the Lord Mayor that the Staff Board could not dismiss Kane under the Council's resolution, but notwithstanding that fact he, Rogan,had come to the conclusion that Kane must be

dismissed and that it was his duty to dismiss him. He informed the Lord Mayor that the responsibility was his and his alone. He said that judging from the comments of Councillors of

dismissal as inevitable on grounds of public health and he was sure that the Lord Mayor would also be so satisfied.

Rogan said that having regard to the position in the city,

the grave dangers to the health of the public,and the

official warnings which had been given to him and the

Council in that respect,he proposed to dismiss Kane.

The Lord Mayor commented, in effect, that he did not see

what else the Town Clerk could do. Rogan immediately told

the Board that Kane was to be dismissed forthwith and he

was dismissed. Mr, Rogan is the Chairman and senior member of t Staff Board which is composed of senior Council officials,

It 1s not clear whether Rogan told the Board that he intended to dismiss Kane or whether he instructed the Board that it would have to dismiss Kane. But the point is of no consequence, The Council's direction to the Board had

mt Pines A 4244 +h Keser ea ne af Ad nmet aan eon ese at that on misfired and the Gueseion GL GisMisSGi WAS at Nav tage

again within the area of Rogan's authority. There is no doubt that whether the Board was the formal instrument of the dismissal or whether the dismissal proceeded directly pursuant to the persornl instructions of Rogan, by-passing the Board, the dismissal proceeded according to a decision made by Rogan personally and for reasons which actuated

It is accordingly the reasons which actuated Rogan which are critical to this case. Rogan was certainly an acceptable witness. He stated that the fact that Kane had refused or failed to stay on strike, "to goin in industrial action", was not a factor actuating him in dismissing Kane. It was his view throughout that Kane should not be disad- vantaged in his employment because he refused to remain on strike. It was also his view that Kane should be free to decide for himself whether he went on strike or stayed on

strike and that he should not be victimised in any way for

deciding to continue to perform his duties. It was also

Council policy that the Council's activities should not proceed in "closed shop". It was Council policy that staff be employed without distinction between unionists and non- unionists. Rogan was well aware of the general nature of

the .objections of the strikers and the Unions to the conduct o: Kane, which he believed were the factors which had influenced them in forming their attitude to the further employment

of Kane. But his reasons for dismissing Kane were not the reasons he believed to be those actuating the strikers and the Unions in relation to Mr. Kane. Mr. Rogan

was concerned and concerned only to create a situation in which the employees generally would resume duty and clear

It was argued, as I understood, that logically in these cir- cumstances the defendant cannot escapea finding that it was actust by the circumstance that Kane had failed to stay on strike, because, substantially, it was from that circumstance that all the factors by reference to which Rogan ultimately dismissed Kane followed. But this 1s unsound. One must go to the words of the section,as expounded by the High Court, look into the mind of Mr. Rogan and ask what were the substantial and operative factors in his mind. This is to be determined not as a matter of logic but of fact.

If one looks into his mind it is clear that the failure

to stay on strike was gust not present as an operative factor. The operative factors in the mind of Rogan

included the attitudes and reactions of other persons to, amongst other matters, the failure of Kane to stay on strike,

but his ovn attitude to that failure did not induce and

would never have induced him to take hostile action against Kane

It follows that I am satisfied that in respect of the charge that the defendant dismissed Mr. Kane on or about 30 March, by reason of the circumstance that he had refused or failed to goin in industrial action, the defendant has established,as on the balance of probabilities that it did not dismiss Kane by reference to that circumstance. The information must therefore be dismissed. The dismissal discussed above was the decisive event in the employment relatio ship of Kane with the defendant. However, the charges numbered V1 and V2 of 1979 referred to above relate to the earlier event of 8 March when the defendant stood down Kane.

The Stand Dowr - 8 March 1978 I turn to the charges concerning the events of 8

March 1978. Mr. Kane resigned from the A.M.W.S.U. on 6 March and later that day he informed the personnel officer of

and intended to take no further part in the strike.

The personnel officer directed Kane to report for work at the Green Street Depot at one o'clock on that same afternoon.

He was the only motor mechanic who reported for duty

although an apprentice, who was not involved in the strike,also reported. He was directed to work ona ""Halflinger" pavement cleaner on which there appeared

to be about eight days work for one mechanic. On 7 March,Kane again attended for work. When he arrived at

the depot he was met by a picket line composed of members

through the picket line but not without opposition.

Later on 7 March Kane was told by the supervisor not to report for work on 8 March, although he would be paid at normal rates for that day. The inference to be drawn is that it was desired to avoid a repetition

of the picketing incidents, in which there had been a

By 8 were received by the Council staff from the M.O.A. that if Kane were allowed to work at the depot by himself, he would not be allowed to obtain

from the store any spare parts or equipment, which he

needed to perform his work, and in fact the store was locked against him. In addition by 8 March the garage was declared "black" and it was reasonably feared by Rogan, and no

doubt by Reilly, that if Kane were allowed to work on any vehicle that vehicle could be declared, and could remain black, for some indefinite period much to the inconvenience of the Council. From Monday 6 March until Saturday 11

March Mr. Rogan, the Town Clerk,was in Adelaide with the

During Rogan's absence Mr. Reilly was the Acting Town Clerk and authorised to act as such. Rogan was expected to return to duty in Melbourne on Monday 13 March. On 7 and 8 March by frequent telephone conversations Rogan was kept fully informed by Reilly of all developments in relation to Kane. A meeting had been held on March 8 between officers of the A.M.W.S.U., the M.E.U., the M.O.A. and the Council Staff Board. The Acting Town Clerk and officers of the Council attended the meeting. The meeting discussed the aspécts of the strike up to that time, including the ancident involving the picketing of the morning of March 7,and the fact that police had been in attendance. The Union queried the classification of Kane and asserted that he was only paying dues to the Union on the basis of being a tradesman's assistant. Opposition was expressed to the continued employment of Kane. After lengthy discussions the Staff Board proposed to the Unions that Kane should be transferred from the Green Street garage to the electricity supply department providing the Union's members would work with him there. The Union agreed to put the propos. to the membership,on the conditions that Kane be requested to become a Union member by joining a trade union, that he give an undertaking to abide by that Union's policy decisions and that he donate to the Lord Mayor's Fund the

monies earned while the strike was in progress. Reilly

informed Rogan of the proposal and advised that he would be

speaking with Kane later in the day and seeking his reactions. Rogan informed Reilly, that having regard to the fact that there was a black ban on the garage and the store had

been closed, it did not appear that the Council could

employ Kane in any way that was useful to the Council and accordingly if Kane did not accept the transfer he would

have to be stood down. Rogan was of the belief that the relevant award provided for Kane's standing down in such circumstances. Later that same day Reilly reported to

Rogan that Kane would accept the transfer but not on the

Reilly confirmed that because of the bans there was no useful work for Kane to do and Rogan advised Reilly that in the circumstances Kane should be stood down. Rogan in evidence, said that he was firmly of the belief that Kane could not be usefully employed, because he could not actually repair any vehicles and if by some method in the absence of stores he did manage to repair a vehicle, that vehicle might be declared black because the garage had been so declared, He feared that if that happened the particular vehicle could remain black even after the strike was over and the Council would have any waste collection vehicles, on which he worked, out of use indefinitely. In all this Rogan had no criticism of Kane for deciding to

"I do not think you could be critical of a man wishing to work even though 1% was causing you troubles,"

thas always been that it never inquires whether a person 1S a unionist or not." He said that there had been considerable union pressure to declare sections of the Council's operations

Rogan said that technically the actual decision to stand Kane down, which was made on the afternoon of March8 was made by Reilly pursuant to his authority as Acting Town Clerk. In substance however, as indicated below, there can be little doubt that Rogan was the controlling officer.

. It appears however, that so far as can be gathered from conversations between Reilly and Rogan, they were both of one mind namely, that in the circumstances not only could Kane do no useful work for the Council working by himself at the depot without access to stores, but that the risk of the extension of the black bans and in particular the risk of vehicles being declared black was such that, in the interests of the Council, Kane had to

employer is required to consider his position. So far as

the Conciliation and Arbitration Act is concerned he must

not ingure his employee by reason of the circumstance that

he has refused or failed to join in industrial action.

But it may well be that, because of the conduct of other people, he can continue to employ the non-striker only

to his own disadvantage. He is entitled to consider his own interests. According to those interests, but subject to the law, he is entitled to decide his own course of conduct,

His decision may be made by reason of the total situation, in which case,it would be correct to say, that it was made

by reason of each aspect or part of that situation, But equally he may make his decision under the influence of one

or other of the aspects of the total situation to the exclusion of the others. In the situation existing

on 8 March 1978 there were a number of identifiable

aspects which might have influenced the defendant in its relations with Kane. It is conceivable, but not likely,

that it would have been influenced by the fact that Kene

did not stay on strike. But there were other aspects of the tot:

situation having a distinct bearing on the interests of the

defendant. The general body of its employees were on strike. That strike threatened the cleanliness and health of the city. Strikers had developed a hostility to Kane expressed in a disinclination to work with him. Kane's place of work had been declared black,because of Kane's efforts to continue to work there,and further bans were either threatened or

reasonably feared if Mr. Kane were permitted to work on

any vehicle and Kane could not be usefully employed.

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

Mr. Reilly did not give evidence. It appears he was on long service leave. No application was made for an adjournment so that he might give evidence, It was

argued on behalf of the informant that, Reilly not having

been called as a witness, the Court should not be satisfied that in standing down Kane, Reilly was not actuated

by the circumstance that Kane had not remained on strike.

In some cases 2a sinister inference might have been made

from these matters but I do not think this is such a case. Rogan gave advice to Reilly as to the course he should

take in relation to Kane and the reasons why it appeared to hin that Kane should be stood down. From the discussions between th two men it is to be inferred that Reilly concurred in Rogan's v Technically it was Reilly who stood Kane down on 8 March. He ha authority so to do and if he stood Kane down in the exercise orf awn authority, his action and the reasons which actuated him in ing that action would, for the purposes of this case, be the ac- and reasons of the defendant. The onus would lie on the defendant to prove as on a balance of probabilities

that the fact that Kane had refused or failed to join in industrial action was not a "substantial and operative

factor" influencing Reilly in standing Kane down. Reilly

was the only person who could prove this positively and

It is however, always possible to draw an inference as to the state of a man's mind from relevant circumstances. To my mind the proper conclusion to be drawn from those circumstances in this case,is that it is probable that, the fact that Kane had refused or failed to join in industri action was not a substantial and operative factor influencir Reilly to stand Kane down or indeed a factor at all. When tr is a strike,in which certain employees do not join, the employment of the non-striking employees frequently poses

problems for the employer. In such cases the employer may

well be unable to provide useful work for the employee to perform. In recognitzon of-this, many Awards of the Conciliation and Arbitration Commission contain provisions that employees for whom, because of industrial action,

The Metal Industry Award 1971, which is relevant to the employment of the motcr necnanics does contain such a provision in clause 6(e) (i) thereof. By 8 March 1978 as

Kane was not a member of the A.M.W.S.U. it may be that although the defendant remained bound to observe the provisions of that Award its right to stand Kane down pursuant to the Award

Whether the standing down proceeded under the Award or otherwise, does not affect the question whether in standing

down Kane the defendant acted by reason of the circumstances

that he had refused or failed to join in industrial action.

It may also happen that the continued attendance for work of the non-striking employees may evoke disturbances, possibly involving violence and black bans,of varying scope and intensity. If the non-strikerscannot be usefully employed and the employer stands the employeesdovn for that reason, then, his action is certainly not taken by reason of the circumstance that the erployeeshive refused or failed to join in andustrial action. It 1s true that inability to employ the non-strikers usefully arises from the strike. And no question of employing the non-strikers usefully would arise 1f they had jgoined in the strike. But

of their useful employment by the employer immediately arises. If because there is no useful work that can be done he stands them down, that is because he does not wish to pay wages with no benefit accruing to him. The nexus of causation is between the appearance of the non- strikers for work, the absence of useful work to be done and the liability of the employer to pay wages if the men are not stood down. Of course when there is a strike in progress, the appearance for work of non-strikers is a manifestation of their failure to join in the current industrial action. But when they are stood down because no useful work is available, they are not stood down because they came to work. They are stood down because ,being persons

who have reported for work, there 1s no work for then.

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

The circumstances relevant to Reilly's state of mind include the contents of the many telephone conversations tetween himself and Rogan on the days of 7 and 8 March, in which were discussed all the events of and incidental to the strike. These comprised Kane's resignation from the A.M.W.S.U. and the fact that he had reported for work. They discussed the attitude of the strikers to Kane, the establishment of the picket lines and the turbulence connected therewith, as well as the steps taken to try to arrange for the transfer of Kane to another section of the Council's activaties, the difficulty in getting any section of employees to work with him, unless he became a union member ready to conform with union decisions and the problems associated with Kane's refusal to agree to these latter demands, They discussed the black bans on the garage and on the store, so far as Kane was concerned, the possibility of bans on vehicles if Kane worked on any of them and that in the circumstances it was impossible to find useful work for Kane to do. They discussed what course of conduct the defendant should adopt in relation to Kane's

It is to be noted that Reilly reported every ancicen™ as it occurred and, I would infer, discussed the significance of each event. I would infer also from the contents of the conversationsthat Reilly was not speaking to Rogan as an

independent executive who had mad= up or would make up

his own mind as to what he was to do in respect of Kane, but rather that he was recognising that the situation was of such delicacy that he was ignoring his temporary technical authority in Melbourne and reacting to the reality of the situation that Rogan was the senior, whose "advice" would be law, and the person to take the responsibility for what was done. Rogan's capacity for taking responsibility and strong supervision in his executive role would support this.

It is clear that Rogan expected his "advice" to be followed.

It appears that in their discussions Kane's refusal or failure to goin in the strike was. not,as such, discussed at all. Certainly that aspect of the situation,as a factor or possible factor having any relevance to the course to be adopted towards Kane,does not appear to have been mentioned.

The evidence of Rogan contained the folloving passage:-

"It was in the light of that that you concurred with Mr. Reilly's view that he had to be stood down?--- I am not sure that I concurred with the view, I think 1t was my view and that I advised Mr. Reilly that in view of all the circumstances which included the black ban and inability to use Mr. Kane in a gainful fashion, that should it transpire that this compromise did not worx out then Mr. Kane was to be stood down. That was my advice to him and he acted on that subsequently when events turned out that way.

. At that stage are you saying you were not ina sense taking over control of the issue, you were leaving 1t to Mr, Reilly to nake up his mind in the light of your advice?--- Putting it ina polite way, yes, but in actual fact I expected him to take my edvice,.

If you in fact had gone to, say, the Lord Mayor at that time and ne had advised you take that course you would have naturelly given hced to such

thought about it, I would not have necessarily acted on it. You see, the point is ~ I iollow the lin e of your questioning, or I think I do, but in my relationship with Mr. Reilly, Mr. Reilly is used to taking instructions from me but I do not take instructions from the Lord Mayor."

The fact that Kane had ceased to be on strike was of course basic to the whole situation, but there is no hint that his refusal and failure to stay on strike was in the mind

of either man as an aspect of the situation, which could

sa) haat? antisan acaine«et Kane te 1. provoxre NOSTILE ACCTLON G_Fainst Aane, in (Festa

o employment, It is clear that to take action against Kane by reason of that circumstance was certainly not in Rogan's mind and he would have been most surprised if there had been any suggestion that it was in Reilly's mind. On the general probabilities of the matter Reilly knew that it was the policy of the defendant that there should be no discrimination against employees who were not unionists. In addition there is a

basic improbability that a man in Rezlly's position would injure one of the defendant's employees in his employment, because he had not joined in industrial action. I+t would have been an ungust and unfair act. But of course the

probability that action might be taken against a non~striker

as a result of various kinds of pressures from the strikers

indicated above, if that was the situation no crime was

However, notwithstanding the con- cession by Mr. Rogan,that technically Reilly was in control of the situation 1n Melbourne on the relevant days, the proper inference from the evidence is that as a matter of substance, Rogan was at all times certainly in relation to the standing down of Kane the dominant officer of the Council and respcnsible for the course taken by Reilly in

"Did you have any belicf as to Reilly's attitude towards Mr. Kane remalning on pay and

And from that you drew a conclusion?-~-Yes, that if an fact he did not accept the compromise then he was to te stood down in the sense he was nov to be sacked, he was just to be not paid during the period of the strike.

You thought if things stayed as they were after he hadthis conversation with you that he would probably co that?---Yes, because he was answerable to me when I came back. The fact he was on the ground he could disregard me temporarily, he could not disregard me for long.

His views and yours were rore or less in line were they not?-~-Yes."

From the fact that Reilly was so insistent in reporting and consulting with Rogan there is good 'reason for inferring that Reilly had no thought of disregarding Rogan or his views at all. It is more than probable that Reilly would not have acted for reasons other than those discussed between himself and Rogan

particularly in a matter of such delicacy. So frequent and

so comprehensive were Reilly's interstate telephone calls

to Rogan, interrupting him in the course of his Adelaide business, that his conduct was more like that of an anxious junior repudiating the temporary technical authority that might have been his. The Lord Mayor,who was in Adelaide on joint business with Rogan,referred to the "whole flurry of

Of course as Mr, Ormiston Q.C., senior counsel for the informant,said any statement by Reilly to Rogan proved from the testimony of Rogan is but hearsay in the sense that it cannot be used as establishing the truth of what Reilly is alleged to have said, But to draw an inference from the terms of the conversatio. and what matters were discussed therein between Rogan and Reilly and to observe that the conversations were frequent and were in the nature of reporting, consulting and conferring, is not so to treat any statements of Reilly. The subject

evidence. The fact that it was Rogan who gave firm advice to Reilly on the critical matter is proved and Rogan's opinion of the likelihood of Reilly departing from his advice is proved, Having regard to their long association Rogan

Mr. Reilly's statements are evidence for the a@efendant in two respects. What was said by Mr. Reilly substantially formed the basis of fact and opinion by reference to which Kogan made up his mind as to the course

which the defendant should adopt on the question of the standing

down of Kane. Also in the context of the reporting and

the consultative procedure adopted by Reilly, the class and nature of the matters put before Rogan by Reilly provide a basis of fact from which an inference may be drawn as to the matters considered by Reilly to be relevant to that question. The fact that, as Rogan said:-

for Mr. Kane to do." demonstrates that that factor was regarded as relevant. This is not to accept as true what Reilly said but from the fact that

• 3A -, a - Pen want - 2 said there arises an inevitabd

the words were Reilly's mind the circumstance so described, correct or not,was put forward bona fide by him as relevant to the problem which had arisen. In the context of the comprehensive nature of the matters put before Mr. Rogan by Mr. Reilly, the absence of references to Kane's refusal and failure to stay on strike as a possibly relevant consideration es such, is an indication

that Reilly did not consider it a relevant matter to put

pefore Rogan and thus not a relevant matter in his mind.

It is manifest from the nature of the conversations

between Rogan and Reilly that Reilly was putting before

Rogan all relevant considerations for the purpose of

obtaining either direction or advice from Rogan and that

Rogan was expecting him to do so. Although Reilly had the formal authority to act on his own initiative and for his

own reasons, I would infer that he did not intend to do

so. Notwithstanding Reilly's formal authority it is unreal

to regard his mind as the decision-making mind in what occurred,

The swift reporting of events to Rogan as they occurred, the comprehensive nature of the telephone discussions, reflected Reilly's status as junior to Rogan. They indicate also that Reilly was seeking the concurrence of Rogan in the steps to be taken by him in the crisis and was reluctant to take steps other than with that concurrence. It was all in line with Rogan's evidence, that when Rogan was absent Reilly assumes his responsibilities and authority but "the working arrangement is that he

endeavours to do it the way he thinks I would do it."

In the task of ascertaining the mind of the defendant corporation, with respect to the standing down of Fano, that mind may be located in the mind of one authorised officer or of more than one person exercising the executive power of the corporation. It is a pure question of fact where in particular circumstances that corporate mind may be located. In a case where two officers are concerned in the solution of an administrative problem and are working jointly to solve it and decide what the corporation is to do and are working in harmony and in full confidence, the one with the other, the mind of the corporation is to be found in the course of conduct agreed upon between them and the reasons which in the end are the operating reasons for the policy agreed upon. In such circumstances where 1t 1s clear that one of the officers is gunior to the other, and is seeking the co-operation and advice and possibly the direction of the other, obviously for a sharing of responsi-

bility, it is not probable that the junior will have secret

reasons not disclosed or act contrary to the advice or direction of the senior. The improbability is increased where the two men have acted for a long time in recurring situations, the junior as a working rule always doing

Accordingly in this case, I think the better view is that it was Rogan's mind which was the mind of the defendant. Possibly the mind of the corporation has to be inferred from Rogan and Reilly's joint mind. What is in issue is a dadccision of the corporation. A decision is defined in the Shorter Oxford English Dictionary as including "the action of deciding" and, notwithstanding that Rogan characterised his part in the affair as giving advice, the corporation is entitled to have the total transaction looked at objectively by the Court. It is the duty of the Court to draw such inferences as are proper on the evidence as to who it was that played the decision-making part in the joint administrative activities culminating in Reilly performing the actual act of standing down. So doing I would attribute the decisive factor in the matter to have been Rogan's so called advice. A relevant

statement of principle in this connection is to be found in

the judgment of Bray C.J. in Brambles Holdines Ltd. v. Carey

"Of course, if mental states like knowledge or belief are to be attributed to a notionel and metaphysical entity like a corporation, this can only be done by attributing to 1t the knowledge or belief actually possessed by some one or more of 1ts officers ... Very difficult questions can arise in this connection ... It is enough to

say that, in my view, it is a fallacy to say that any state of mind to be attributed to

of one particular officer alone and tnat the corporation can never know or believe more than that one man knows or believes. This cannot

be so when it is a case of successive holders of the office in question or of the holder of the office and his deputy or substitute during his absence,"

It was argued by Mr. Ormiston that whether or not Rogan or Reilly actually gave attention to the fact that Kane had refused or failed to join in industrial action, in determining the question whether Rogan or Reilly dismissed or injured Kane in his employment by reason of the circumstance that he had refused or failed to goin in industrial action, 1t was a decisive factor that at the time such actions were taken Kane had become aperson characterised as a strike- - breaker, It was argued that it followed that the dismissal and standing down of Kane were actions taken against Kane as a person sc characterised and accordingly were to be scen as having

been taken by reason of that feature of the situation.

As I understood this argument the substance of it was that

the correct approach is to isolate the characteristic of the employee which differentiates him from the other employees,

who have not been stood-down or ingured in their employment.

The submission continued that if that approach were adopted

it would be manifest that the employer had taken action by reason of that characteristic, It was said that the exclusive characteristic of Kane was his failure to join in industrial action, Therefore it was concluded that that must have been the circumstance by which the employer acted. But when one stands down or injures an employee,who has a particular characteristic, it cannot necessarily be concluded that 1t was that characteristic which was the substantial basis of the action taken against him. The whole situation must be considered and the question is whether the person who had the characteristic was dismissed because the employer was influenced by the fact that he had such a characteristic, or by one or more of the many other factors which were relevant to the question

whether for instance he should be stood down or dismissed.

This argument does not reflect the elements of the crime as defined in s.5(1)(aa) of the Act. The section does not make it an offence to dismiss an employee who has broken or attempted to break a strike, or defied his fellow employees, or a union decision to engage in a strike or other industrial action. An offence is only comnitted when the state of mind of the employer, is such that the fact that the employee has

refused or fazled to join in the strike was itself a substantial

and operative reason for dismissing or otherwise inguring the employee. It would be apparentthat 1n the case of an employer whose state of mind was that the fact that the employee had resisted the strike disposed him rather to advantage the employee in his employment, but who nevertheless, in his own interests, was influenced by or indeed forced to dismiss

him by circumstances created by other persons he would not

act by reason of the circumstance that the employee was

a strike-breaker. Similarly no offence 1s committed by any employer where that latter circumstance is not a substantial

and operative factor influcncing him to dismiss the employee.

In the result I am satisfied that Rogan had no thought of "advising" that Kane should be stood-down by reason of the circumstance that he did not continue to strike and I am satisfied that Reilly also had no such thought. For these reasons I am satisfied that the mind of the corporation which decided to stand down Kane on 8 March 1978 was one in which the circumstance, that Kane had refused or failed to join in industrial action, was not "a substantial and operative factor"

Accordingly I would dismiss all three informations.