Workplace Relations Act 1996

s.643 - Application for relief re (Harsh, Unjust or Unreasonable) termination of employment

Unfair Dismissal - Remedy - Reinstatement Sought - Trust and Confidence - Compensation in Lieu of Reinstatement.

[1] On 5 June 2009 I handed down a decision in which I found that the termination of Mr.Paul Spillard's employment was harsh, unjust or unreasonable. I provided the parties with the opportunity to discuss between themselves an appropriate remedy. Discussions occurred but no agreement was reached.

[2] This matter remains to be determined pursuant to provisions of the Workplace Relations Act 1996, as the termination occurred before the 'WR Act repeal day', and the decision is one made by the Australian Industrial Relations Commission [1].

[3] Mr.Spillard put submissions on remedy during the matter. After my decision of 5 June 2009 some six submissions on remedy were put: by Patrick Stevedores on 30 June 2009, 15 July 2009 and 17 July 2009, and by Mr.Spillard on 30 June 2009, 15 July 2009 and 17 July 2009.

[4] In its submission of 30 June 2009 Patrick Stevedores (Patricks) submitted that in the facts of the case, given the finding that Patricks was not at fault, no remedy is appropriate. It submitted that the Commission did not accept the evidence of the applicant, rather he had been given the benefit of the doubt in the absence of evidence which corroborated evidence of Mr.Prendergast, who made a complaint of physical assault. It submitted that Patrick Stevedores Holdings Pty Ltd's (Patricks) policies against violence are critical. It concluded:

'Reinstating the applicant in circumstances where he was not honest with his employer and where management took all appropriate steps to investigate a serious complaint by another employee would seriously undermine the efforts the respondent has taken to change the culture of its workforce and discourage violent behaviour.' [2]

[5] Patricks (the respondent) submitted that an order for reinstatement would have an adverse effect on the respondent's operations. The global economic downturn has had an effect with a significant drop in containers, with 63,221 containers handled at East Swanston dock in October 2008, the date of dismissal, and by February 2009 this had decreased to 41,673 containers, a reduction of 35%. There have been 16 voluntary redundancies. In the alternative, the reinstatement order should not specify a panel to which the applicant should be returned.

'Where the Commission has found that the applicant was not honest with his employer and continued to lie in his evidence to the Commission about the conduct of the investigation, and to rely on this false evidence to support a claim that he was not provided with procedural fairness, it is clearly inappropriate to award reinstatement. The applicant's conduct does not permit the necessary relationship of trust and confidence to be re-established.'

[7] Mr.Dircks for Mr.Spillard (the applicant) submitted on 30 June 2009 that the claim for reinstatement and lost wages was pressed. The applicant submitted that such an order would not affect the viability of Patricks, that the length of service at 9 years was significant service, that the remuneration the employee would have received had little bearing on a reinstatement decision, and that the effect of the dismissal has been 'very significant both financially and personally on the applicant.' He has had to sell his house, his fianc� has had to return to England, with the subsequent failure of the relationship, and the applicant had to work interstate away from his mother who has a 'terminal illness'. It submitted that the Commission should follow the decision of the Industrial Relations Court of Australia in Anthony Smith & Associates v. Gary Sinclair [3] adopted by the Commission in Phillis.

[8] On 15 July 2009 the respondent submitted that Phillis should be distinguished for a number of reasons, contested claims that the applicant had strenuously sought to mitigate his loss, and other matters. On 17 July 2009 the applicant submitted that Brown v. Coles Group Supply Chain Ltd should be distinguished. In that case the applicant was guilty of misconduct, and the Commissioner doubted that the applicant appreciated the gravity of his actions, and there was relatively short employment (14 months) and a disciplinary history. It also contested the respondent's claims about the effect of the financial crisis, and submitted that reinstatement would not impose an unwarranted burden on the respondent. It submitted that there was no evidence of repeat behaviour of the matters in the warning letter of 14 October 2007.

Section 654(2) - Should an Order for a Remedy be Made

[9] In my view an order for a remedy should be made, having regard to all the circumstances of the matter (s.654(2)). I reject the submission of the respondent that no order should be made. An order will not affect the viability of Patricks (an issue I address further below), the length of service of the applicant is 9 years, which is substantial, as is the remuneration that the applicant would have received but for termination, and other matters. In my view it would be just and appropriate for a remedy to issue.

[10] Reinstatement is the primary remedy. I was referred to a number of decisions which it was submitted should guide the exercise of the discretion regarding reinstatement, which included Phillis v. Australian Department of Defence [4]. Other decisions of relevance include Vdoukakis v. Cussan[5], and McNair v. ABB Australia[6].

[11] The decision Loty and Holloway v. AWU [7] is referred to in the principal object of the Division (s.635):

s.635(2) The procedures and remedies referred to in paragraphs (1)(a) and (b), and the manner of deciding on and working out such remedies, are intended to ensure that, in the consideration of an application in respect of a termination of employment, a "fair go all round" is accorded to both the employer and employee concerned.

Note: The expression "fair go all round" was used by Sheldon J in re Loty and Holloway v Australian Workers' Union [1971] AR (NSW) 95.'

[12] If the Commission, or indeed Fair Work Australia, is to accord a 'fair go all round' to both the employer and employee concerned it may therefore be relevant to consider that decision (see Schedule 2), if the principal object of the Division is of any relevance. In Loty Sheldon J examined the actual nature of the work performed by Messrs. Loty and Holloway, the responsibilities and importance of that work, the nature of the relationships between them and the new union executive, the work of the union and the importance of their work in that overall scheme, and all the circumstances of the matter. The decision is not one decided on general issues of rights alone but on issues of actual significance demonstrated on the evidence, and practical effects revealed by the evidence. Sheldon J reinstated Miss Holloway on stringent conditions, and refused to reinstate Mr.Loty, given the nature of his work and other factors. He said for example that he regarded the 'relationship between the industrial officer and the union executive as one of special confidence far beyond that which exists in relation to clerical and ordinary administrative work'. In many respects Loty can be seen as an injunction to be sensible.

[13] In I.W. McLauchlan V Australia Meat Holdings [8] a Full Bench of the Commission discussed what was relevant to the question of reinstatement of an employee terminated by his or her employer:

'The appellant contends that the Commissioner fell into error in approaching the question of reinstatement on the basis of fairness not practicability. We do not agree. The appellant's submissions do not have sufficient regard to the change in terminology referred to above. The question of whether the reinstatement of an employee is impracticable is no longer the focal point of the Commission's consideration of the remedy to be granted. In considering whether to order reinstatement the Commission is not confined to an assessment of the practicability of such an order but rather must decide whether such an order is appropriate.

We accept that the question of whether there has been a loss of trust and confidence is a relevant consideration in determining whether reinstatement is appropriate. It is one factor to be taken into account, but it is not necessarily conclusive.'

'Pursuant to s.170CH(2) the Commission must not make an order under s.170CH unless it is satisfied that the remedy ordered is appropriate having regard to all the circumstances of the case including, in particular, the matters in s.170CH(2)(a) to (e). The Commission must first consider reinstatement and not consider compensation in lieu of reinstatement pursuant to s.170CH(6) unless it is satisfied that reinstatement is not appropriate having regard to the matters specified in s.170CH(2).'

[15] Turning to deal with the factors in s.654, firstly, an order of reinstatement would not in my view affect the viability of the respondent (s.654(2)(a)). I accept that there is a downturn, and the employer has made redundancies, but it was not claimed that viability would be affected. Secondly, the length of service does, as in Phillis, tend to favour reinstatement. It is considerable, at 9 years (s.654(2)(b)). Thirdly, factors such as remuneration that the applicant would have earned are of limited assistance (s.654(2)(c), (d)). Fourthly, the applicant has attempted to find alternative employment (s.654(2)(e)).

[16] Fifthly, in relation to other matters (s.654(2)(e)), I accept that termination has had an adverse effect on him, and that I did not find that there was a valid reason for termination.

[17] Further, trust and confidence are central to the employment relationship. As Wilcox CJ, Marshall and North JJ said in Perkins v. Grace Worldwide (Aust) Pty Ltd [9]:

'Each case must be decided on its own merits. There may be cases where any ripple on the surface of the employment relationship will destroy its viability. For example, the life of the employer, or some other person or persons, might depend on the reliability of the terminated employee, and the employer has a reasonable doubt about that reliability. There may be a case where there is a question about the discretion of an employee who is required to handle highly confidential information. But those are relatively uncommon situations. In most cases, the employment relationship is capable of withstanding some friction and doubts. Trust and confidence are questions of degree. It is rare for any human being to have total trust in another. What is important in the employment relationship is that there be sufficient trust to make the relationship viable and productive. Whether that standard is reached in any particular case must depend upon the circumstances of the particular case. And in assessing that question, it is appropriate to consider the rationality of any attitude taken by a party.'

[18] In Fletcher v. Commonwealth of Australia [10] Watson SDP, Lacy SDP and Redmond C found that an employer loss of trust and confidence was not substantiated on the evidence before the Commission. In Ellawala v. Australian Postal Commission[11] a Full Bench of the Commission considered that there was sufficient evidence before the Commission to conclude that reinstatement was not inappropriate because the employer could have little or no confidence that it could rely on the terminated employee to effectively carry out her duties. In Galea v. Tenix[12] Giudice J, Lawler VP and Bacon C upheld a finding that in the particular circumstances before the Commission, trust and confidence had not broken down irretrievably, despite two threats by the applicant Galea to witnesses, because it was open to the member at first instance to find that the threats were not indicative of Mr.Galea's future conduct in the workplace. In Streeter v. Telstra[13] a majority of the Full Bench (Acton SDP and Cartwright SDP, Larkin C dissenting) said that:

'Stock or cash are only a part of the matters Ms.Streeter needed to be honest about to maintain the necessary relationship of trust and confidence between Telstra and herself. Whether the matters were personal or not, Ms.Streeter had an obligation to answer Testra's reasonable inquiries honestly.'

'While minds may differ as to the gravity of Ms.Streeter's dishonesty his Honour addressed this issue and made findings. His Honour's findings on the issue of dishonesty were open to him on the material before him.'

[20] In the decision under appeal, the member at first instance decided that Ms.Streeter lied about some of her behaviour during the investigation, he did not accept some of her evidence, he said that the lying was about conduct of an inherently personal nature, that lying is not to be condoned, but that this lying did not in the circumstances before him destroy the 'necessary relationship of trust between an employer and employee.'

[21] The most recent Full Bench decision which addresses the issue of the importance of trust between an employer and employee is Dircks v. JimRoy Pty Ltd [14], in which the learned Commissioner said:

' .... honesty and trust between employers and employees lie at the foundation of the employment relationship. This tenet is the basis of decisions by this Commission and several Courts.'

'The Commission's finding at paragraph 29 as to Mr.Ryan's credit makes it clear that the applicant's evidence on these points was not accepted. Where the Commission has found that the applicant was not honest with his employer and continued to lie in his evidence to the Commission about the conduct of the investigation, and to rely on this false evidence to support a claim that he was not provided with procedural fairness, it is clearly inappropriate to award reinstatement. The applicant's conduct does not permit the necessary relationship of trust and confidence to be re-established.'

[23] It also submitted that reinstatement would undermine its policies against violence in circumstances where the applicant 'was not honest with his employer'.

[24] The applicant replied that there was not a valid reason, the applicant was not notified of a valid reason, and summarised the other findings made by the Commission. After reviewing authorities the applicant concludes:

'We submit that this case was run on the basis of whether a particular event occurred or not. The findings on that are clear.

The case that is being run by the respondent's submissions to deny any remedy is being run on the basis of matters that were not central in the case. Any claim that the applicant is somehow an unworthy person to be reinstated or compensated ignores the basic injustice that has been done to an objectively innocent applicant. Other considerations of character or worthiness as a person are not relevant if he did not do the crime that he was punished for.'

[25] Turning to deal with the specific circumstances before me, first of all, I found nearly all of the evidence given by the participants in the altercation on 26 September 2008 to be unsatisfactory, including evidence given by the applicant. It is fair to say that I endeavoured to use measured language, given the possible lasting and detrimental effect of any adverse observations I might make. It was unfair that the applicant was singled out for termination. Nevertheless, my findings about the applicant's evidence are significant and relevant in my view to whether or not a relationship of trust and confidence can be re-established between the applicant and respondent.

[26] Secondly, in this case, I also have some concerns about his workplace behaviour. The applicant got off his straddle and approached Mr.Prendergast, in circumstances which cause me concern [15]. That led to a further altercation and allegations of assault by Mr.Prendergast. In my view the applicant cannot be absolved of all responsibility for the altercation as it developed before that, although there were other willing participants who also share responsibility. It is not clear that previous warnings are particularly relevant. However, the applicant has been warned previously, including as recently as 29 October 2007, and was informally counselled on four occasions, the most recent on 18 January 2008[16]. It is unclear to what extent the applicant was responsible for the events which led to his dismissal. However, it is not enough to simply assume that he was not responsible and that he can be trusted. With the greatest respect, I did not decide that the applicant was 'objectively innocent'. I decided that the claims against him were not proven.

[27] Thirdly, evidence given during proceedings, including by the applicant [17], persuades me that the work is difficult, and requires high standards of personal conduct. The job includes operating heavy machinery, moving heavy objects around the wharf area, and interacting with other employees in a cooperative manner, including in circumstances where personal conflict may occur. We have before us evidence about the tasks performed by each employee involved in the altercation of 28 September 2008, as well as photographs and other evidence about how work is performed, how employees need to cooperate in teams, and how they communicate between themselves.

[28] Having regard to these findings, I do not believe that I can reasonably expect a relationship of trust and confidence to exist in the future. The Commission must act according to 'good conscience, equity and the substantial merits of the case', but there is no injunction on the Commission to be reckless with this sort of workplace. The Act requires me to consider reinstatement to be appropriate (s.654(3)) before issuing an order for reinstatement. I am not satisfied that it is appropriate.

[29] This decision relates only to the circumstances before me.

[30] I have decided in the alternative to make an order in lieu of reinstatement pursuant to s.654(7).

[31] In alternative submissions put by the applicant and respondent they dealt with the issue of compensation. I have had regard to relevant decisions including Ellawalla v Australia Postal Corporation [18], Sprigg v Paul's Licensed Festival Supermarket[19], Enhance Systems v James Cox[20], and Smith and Kimball and Moore Paragon[21].

[32] Turning to deal with the factors in s.654(8), firstly, an order of compensation would not in my view affect the viability of the respondent (s.654(8)(a)). I accept that there is a downturn, and the employer has made redundancies, but it was not claimed that viability would be affected. Secondly, the length of service is substantial, at 9 years, which favours a greater amount (s.654(8)(b)). Thirdly, in my view the applicant would have been employed for no longer than a further 3 months, given the matters discussed above and the circumstances of the workplace (s.654(8)(c)). I do not agree with the lengthy period proposed by Mr.Dircks, as it does not take account of the circumstances of the applicant and the workplace. Fourthly, the applicant has attempted to find alternative employment. I accept that the applicant has mitigated his loss. He gave evidence that he moved away from home to do so, for example, and was not cross examined on this [22] (s.654(8)(d)). Fifthly, in relation to other matters (s.654(2)(e)), I accept that termination has had an adverse effect on him, and that I did not find that there was a valid reason for termination. I have had regard to all the submissions put to me.

[33] The amount of earnings should be deducted from the 3 months pay. It is not necessary to make a deduction for contingencies for future events not known at the date of hearing, (4-5 March), because those hearings occurred more than 3 months after termination (29 September 2008). All contingencies during the 3 months of lost earnings were known at the time of hearing: Ellawalla v Australia Postal Corporation [23].

[34] I reject the submission of the respondent that compensation should be based on the notice for termination. That would not in my view be equitable in the circumstances, having regard to the factors in s.654 that I am required to have regard to. The applicant, for example, has had 9 years service, to reiterate one of the factors discussed above.

[35] Sub-section 654(11) provides that no more than the amount of remuneration received by the employee in the six months before termination can be awarded. Having regard to this, the statutory maximum that can be awarded to the applicant is $58,894.65 [24] plus superannuation[25], and 3 months pay is $29,447.32 plus superannuation. The amount of earnings, $11,783.75 should be deducted from the amount of 3 months pay plus superannuation[26]. This leaves an amount of $17,663.57 plus superannuation.

[36] The Applicant's submissions variously note the amount of superannuation is $5,300.52 [27] or in its submission of 15 July 2009 at paragraph 19:

'19. The agreed facts are that the Applicant earned an average of $2,313.57 per week including bonuses [paragraph 8 of agreed facts]. It does not appear to be in dispute that superannuation was paid at the level of $190.75 per week.' [my underlining]

[37] I will accept the statement of what is agreed. Using the figure of $190.75 per week x 26 weeks, the amount of earnings in superannuation benefits is $4,959.50, or $2,479.75 for 3 months.

[38] I will order that the amount of $20,143.32 gross be paid by the respondent to the applicant. An order is contained in PR988368.

Ms J Mansfield, solicitor, for the respondent Patrick Stevedores Holdings Pty Ltd

Patrick Stevedores on 30 June 2009, 15 July 2009 and 17 July 2009.

Mr.Spillard on 30 June 2009, 15 July 2009 and 17 July 2009.

The Workplace Relations Act 1996

Section 635 of the Workplace Relations Act 1996 provides:

(a) to establish procedures for conciliation in relation to certain matters relating to the termination or proposed termination of an employee's employment in certain circumstances; and

(b) to provide, if the conciliation process is unsuccessful, for recourse to arbitration or to a court depending on the grounds on which the conciliation was sought; and

(c) to provide for remedies appropriate to a case where, on arbitration, a termination is found to be harsh, unjust or unreasonable; and

(d) to provide for sanctions where, on recourse to a court, a termination or proposed termination is found to be unlawful; and

(e) by those procedures, remedies and sanctions, and by orders made in the circumstances set out in Subdivision D, to assist in giving effect to the Termination of Employment Convention.

s.635(2) The procedures and remedies referred to in paragraphs (1)(a) and (b), and the manner of deciding on and working out such remedies, are intended to ensure that, in the consideration of an application in respect of a termination of employment, a "fair go all round" is accorded to both the employer and employee concerned.

Note: The expression "fair go all round" was used by Sheldon J in re Loty and Holloway v Australian Workers' Union [1971] AR (NSW) 95.'

Section 654 of the Workplace Relations Act 1996 provides:

(1) Subject to this section, the Commission may, on completion of the arbitration, make an order that provides for a remedy of a kind referred to in subsection (3), (4) or (7) if it has determined that the termination was harsh, unjust or unreasonable.

(2) The Commission must not make an order under subsection (1) unless the Commission is satisfied, having regard to all the circumstances of the case including:

(a) the effect of the order on the viability of the employer's undertaking, establishment or service; and

(b) the length of the employee's service with the employer; and

(c) the remuneration that the employee would have received, or would have been likely to receive, if the employee's employment had not been terminated; and

(d) the efforts of the employee (if any) to mitigate the loss suffered by the employee as a result of the termination; and

(e) any other matter that the Commission considers relevant;

(3) If the Commission considers it appropriate, the Commission may make an order requiring the employer to reinstate the employee by:

(a) reappointing the employee to the position in which the employee was employed immediately before the termination.

(b) appointing the employee to another position on terms and conditions no less favourable than those on which the employee was employed immediately before the termination.

(4) If the Commission makes an order under subsection (3) and considers it appropriate to do so, the Commission may also make:

(a) any order that the Commission thinks appropriate to maintain the continuity of the employee's employment; and

(b) subject to subsections (5) and (6) - any order that the Commission thinks appropriate to cause the employer to pay to the employee an amount in respect of the remuneration lost, or likely to have been lost, by the employee because of the termination.

(5) In determining an amount for the purposes of an order under paragraph (4)(b), the Commission must have regard to:

(a) the amount of any income earned by the employee from employment or other work during the period between the termination and the making of the order for reinstatement; and

(b) the amount of any income reasonably likely to be so earned by the employee during the period between the making of the order for reinstatement and the actual reinstatement.

(6) If, as a result of an application under section 663, a court has awarded an amount of damages for a failure to give notice of a termination as required by section 661, any amount ordered to be paid by the Commission under paragraph (4)(b) in respect of the termination is to be reduced accordingly.

(7) If the Commission thinks that the reinstatement of the employee is inappropriate, the Commission may, if the Commission considers it appropriate in all the circumstances of the case, make an order requiring the employer to pay the employee an amount ordered by the Commission in lieu of reinstatement.

(8) Subject to subsections (9), (10), (11) and (12), in determining an amount for the purposes of an order under subsection (7), the Commission must have regard to all the circumstances of the case including:

(a) the effect of the order on the viability of the employer's undertaking, establishment or service; and

(b) the length of the employee's service with the employer; and

(c) the remuneration that the employee would have received, or would have been likely to receive, if the employee's employment had not been terminated; and

(d) the efforts of the employee (if any) to mitigate the loss suffered by the employee as a result of the termination; and

(e) any misconduct of the employee that contributed to the employer's decision to terminate the employee's employment; and

(f) any other matter that the Commission considers relevant.

(9) An amount ordered by the Commission under subsection (4) or (7) to be paid to an employee may not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt, caused to the employee by the manner of terminating the employee's employment.

(10) If the Commission is satisfied that misconduct of the employee contributed to the employer's decision to terminate the employee's employment, the Commission must reduce the amount it would otherwise fix under subsection (7) by an appropriate amount on account of the misconduct.

(11) In fixing an amount under subsection (7) for an employee who was employed under award-derived conditions (see subsection 642(6)) immediately before the termination, the Commission must not fix an amount that exceeds the total of the following amounts:

(whichever is higher) for any period of employment with the employer during the period of 6 months immediately before the termination (other than any period of leave without full pay); and

(b) if the employee was on leave without pay or without full pay while so employed during any part of that period - the amount of remuneration taken to have been received by the employee for the period of leave in accordance with the regulations.

(12) In fixing an amount under subsection (7) for an employee who was not employed under award-derived conditions (see subsection 642(6)) immediately before the termination, the Commission must not fix an amount that exceeds:

(a) the total of the amounts determined under subsection (11) if the employee were an employee covered by the subsection; or

(b) the amount of $32,000, as indexed from time to time in accordance with a formula prescribed by the regulations;

(Note: Section 654(12)(b) indexed to $50,700 from 1 July 2007)

(13) For the avoidance of doubt, an order by the Commission under paragraph (4)(b) or under subsection (7) may permit the employer concerned to pay the amount required in instalments specified in the order.

In Loty and Holloway v. AWU [28] Sheldon J of the NSW Industrial Commission considered an application by the Federated Clerks' Union of Australia, NSW Branch for the reinstatement of Necia Holloway and Peter Loty to their former positions with the Australian Workers' Union. Sheldon J referred to the various industrial expressions used such as a 'fair go all round', and discussed the nature of the discretion of the Commission in considering reinstatement:

'The less fetters there are on the discretion the better (none appear in the Act) but it is all-important that it should be exercised soundly. The objective in these cases is always industrial justice and to this end weight must be given in varying degrees according to the requirements of each case to the importance but not the inviolability of the right of the employer to manage his business, the nature and quality of the work in question, the circumstances surrounding the dismissals and the likely practical outcome if an order of reinstatement is made. These certainly may be cases where the dismissal had many elements of unfairness but an industrial authority if it was convinced of the practical uselessness of trying to re-establish the employer-employee relationship, would not intervene at all. There may be other cases where there are reasonable prospects for the future of the relationship if clarifying conditions are imposed.' [29]

Sheldon J examined the facts of the matter in some detail and decided to reinstate Miss Holloway to her former employment only with what he called 'stringent conditions', explaining:

'I am only prepared to make an order of reinstatement if Miss Holloway resumes her employment fully recognizing the authority of the executive of the branch. In my opinion, it would be completely wrong for the Commission to make such an order if its practical effect were not more than to promote a continuance of a running fight between Miss Holloway and the Barnes-McKay group. She has sought relief because she is an employee and if she is to receive it, she must be prepared in future to act exclusively as such. I call special attention to (b) above. One of its objects is to avoid Miss Holloway being involved in arguments about where various powers relevant to her work lie under these difficult rules. If breaches of the rules occur, this can be determined by the proper authority at the behest of proper parties. My intention is that Miss Holloway should take no part in such matters and should accept the decision of the branch executive relating thereto as binding upon her unless it is inconsistent with any actual ruling by a proper authority. The purpose of (a) above is to spell out that, in every practical sense, her employer and the final authority is the branch executive and to place on her the same obligation as applies to any employee. I think that (c) speaks for itself and is intended to reduce the possibility of the recurrence of some past events. If Miss Holloway accepts and fulfils these conditions, I would expect members of the Barnes-McKay group to afford her the fair treatment due to all employees.' [30]

'In my opinion, the post of an industrial officer, performing this range of work in a union, is very near the heart of its operations. Not only does the work involve a close connection with organizers, branch officials and rank and file members in connection with industrial claims but also the public representation of the union in conciliation and arbitration proceedings where the industrial officer does work which is also often done by elected officers of the union and sometimes by legal representatives. In the course of these proceedings, which involve issues arising in stoppages of work as well as routine award making, the industrial officer often must express and give effect to the policies and aims of the union and the results achieved are of crucial importance to the union and those charged with its management. Different executives may have different views as to how the objects of the union (in the instant case set out in rule 3) are to be achieved and the presentation of the union's case in conciliation and arbitration proceedings is closely related to the achievement of many of these objects. Also it can be very damaging to the executive of a union [if] an industrial officer creates a bad image with organizers and members. I regard the relationship between the industrial officer and the union executive as one of special confidence far beyond that which exists in relation to clerical and ordinary administrative work. It follows that it is essential that the executive of the union should have a free hand in selecting an industrial officer and, in the absence of some proven act of dishonesty, I find it hard to conceive any circumstances in which an industrial authority would intervene when a new executive of a union decides to make a change.' [31]

[1] Fair Work (Transitional Provisions and Consequential Amendments) Act 2009, Schedule 2, Items 11 and 12

[2] Patrick 30 June 2009 submissions, paragraph 11

[3] (1996) 67 IR 240

[4] Lawler VP, Harrison SDP, Holmes C, 5 September 2003, PR937132

[5] Duncan SDP, O'Callaghan SDP, Redmond C, 23 July 2004, PR949780

[6] Harrison SDP, Duncan SDP, Richards C, 9 June 2004, PR947746

[7] [1971] AR (NSW) 95

[8] Vice President Ross, Senior Deputy President Polites, Commissioner Hoffman 5 June 1998 Print

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