· "ACI desired to be rid of Mr Williams, who it saw as an active shop steward … who had given it some grief on industrial issues." [52]
3 Counsel for ACI submitted that the decision to terminate Mr Williams was made in response to what Mr Gillholme and Mr Minniti understood was Mr Williams' conduct. Counsel also contended that it was action which Mr Gillholme and Mr Minniti believed they were entitled to take under the Act. The decision was opportunistic and not premeditated, counsel submitted.
4 Even if it is accepted that the decision was an opportunistic one, it was nonetheless unlawful and, in the circumstances set out in the previous judgment, it constituted a blatant and serious breach of the Act. I do not accept the submission that the termination of Mr Williams flowed from a failure to appreciate the scope of s 298L(1)(a). Mr Gillholme and Mr Minniti are both experienced in industrial relations. They should not have been in any doubt about the illegality of their conduct.
5 I reject the contention that Mr Minniti's reaction to Mr Williams' putting the telephone down showed that Mr Minniti was merely reacting to provocation rather than acting in deliberate defiance of the Act. Mr Minniti had the opportunity to put a considered recommendation to Mr Gillholme. The recommendation was not a spur of the moment decision.
6 Mr Williams' failure to hold the meeting at lunchtime should be considered as only a minor mitigating factor. To class it as a major mitigating factor would reward Mr Pillen's even more inappropriate conduct in failing to accept the existence of a dispute.
7 I further reject the submission that Mr Williams' status as team co-ordinator was "an ameliorating circumstance". Such a contention is inconsistent with the reasons for judgment of 18 November 2005, in which the Court found that Mr Williams' status as a team coordinator was not a basis for his termination.
8 I agree with the submission of counsel for ACI that the Court should not take into account the breach of the disciplinary code, in itself. However, as counsel for the Union submitted, adherence to the code may have avoided the situation which ACI now finds itself in as a result of its summary dismissal of Mr Williams.
9 An examination of the relevant facts shows that two senior industrial relations managers, in important roles, made a decision to terminate the employment of an active shop steward, whose industrial representation of the members of the Union working at ACI had displeased them. In the circumstances, a penalty in the high range of those available is appropriate, but for the matters set out below.
10 I now turn to the other factors relevant to the question of penalty as discussed by Branson J in Construction, Forestry, Mining & Energy Union v Coal & Allied Operations Pty Ltd (No 2) (1999) 94 IR 231, as foreshadowed at [79] in the previous judgment.
11 There is no evidence that ACI has previously contravened Pt XA of the Act, or any predecessor provision. That is a mitigating factor.
12 Given that Mr Williams has been reinstated and that ACI has been admonished for its conduct in the 18 November 2005 judgment, there are no continuing consequences in respect of ACI's conduct.
13 The protection of industrial freedom of association and, in this case, freedom of representation, has been upheld by the reinstatement order.
14 The maximum penalty available to the Court is 300 penalty units or $33,000, see s 298U(a)(i) of the Act and s 4AA(1) of the Crimes Act 1914 (Cth).
15 Having regard to the totality of the above matters I consider that a mid-range penalty is appropriate and set the penalty at $16,500.
16 There is no reason why the penalty should not be paid to the Union; see Finance Section Union v Commonwealth Bank of Australia [2005] FCA 1847 at [71], per Merkel J and s 356(b) of the Act.