Philopoulos, George v Farabram Nominees Pty Ltd [1980] FCA 66

In matter V. No. 3 of 1980 the alleged breach was of clause 31(b) of the award, it being alleged "that on 5 April 1979 ,.. an authorised person, being the applicant, was denied entry to the respondent's factory premises during the midday

meal break to conduct legitimate union business", The Court

rejected an attempt by Mr Nathan to supply particulars of an alleged additional breach of a separate provision of the award (clause 3l(a)) which allegation did not fall within the affidavit supporting the application and filed with it. This additional matter was referred to in a later affidavit by the applicant which was sworn and filed shortly before the hearing - and more than six weeks after the hearing of the summons for directions. No application was made for leave to amend the application in such a way as to include the alleged additional breach.

In matter V. No. 4 of 1980 it was alleged that, in breach of clause 3l(a) of the award, on or about "the 9th day of April 1979 at Richmond the respondent denied an authorised person access to the wages books, or time sheets, or records covering its employees and refused to make such wages books, time sheets or records available for inspection on demand".

2. The respondent was a member of the Victorian Chamber

of Manufactures which was an organisation of employers registered under the Act.

3. The award was binding on the Victorian Chamber of Manufactures and its members including the respondent which conducted a clothing manufacturing business at

The Clothing and Allied Trades Union of Australia (the union) was an organisation of employees, registered under the Act, which was affected by the alleged

The applicant was an officer of the union and authorised

under the rules of the union to sue on behalf of the union. Clause 31 of the award provided as follows:

(a) Any person or persons not to exceed two duly authorised by the Industrial Registrar or Deputy Industrial Registrar in writing (such authorisation shall be terminable at the will of the Industrial Registrar or Deputy Industrial Registrar) shall be allowed to enter the factory or workshop during working hours. The employer shall in person, or by representatives on his behalf, be entitled to accompany the authorised person or persons during an inspection. Access shall be granted to the wages book or time sheets or records covering all employees, including outdoor workers in the employ of that employer. The employer shall be advised on all occasions when entry is sought.

Wages books or time sheets or records, or a true copy thereof, must be kept on the premises at which employees are working and be made available for inspection on demand. Any failure on the part of an employer in this respect shall constitute a

Authorised officials shall not be denied entry to an establishment on the ground that the employer or a nominated representative is not available to grant access at the time entry is sought.

The work and duties of all employees in the establishment and the business of the employer shall be interfered with as little as possible by the authorised person or persons.

(b) An employer shall permit any person authorised by the Registrar or Deputy Registrar in writing to enter from time to time the one or several factories or workshops of that employer during the mid-day meal to conduct legitimate union business; and once during each month at a time most convenient to an employer during working hours, for the purpose of collecting members' contributions.

Such authorised person shall inform the person-~in- charge (a person shall be in charge) of his arrival before entering the workshop or factory. Such official shall have reasonable ingress into the factory and access to the employees. If any official so authorised makes himself objectionable during any such visit to the employer (or his representative)

or to any employee, his authorisation may be terminated by the Registrar or Deputy Industrial Registrar on an application by the employer.

(c) Where any employer or his representative fails to comply with the requirements of this clause, the failure shall constitute a breach of this award.

(d) Where any union official behaves in an objectionable manner such conduct shall constitute a breach of this award."

The applicant and one R. A. J. Broomfield, who accompanied him on the later of the two visits to the respondent's premises in April 1979, were both authorised persons within the meaning of clause 31

applicant and the respondent. The applicant visited the

respondent's premises during the morning of Thursday, 5 April

1979 and discussed with Mr Harwood, the managing director of

the respondent, matters which included the dismissal of an

employee, which are not the subject of the breach alleged in

matter V. No. 3 of 1980. The applicant gave evidence that a bell rang, that Mr Harwood agreed that it meant there was a lunch break for the employees, and that he saw a number of employees entering a room opposite which he assumed to be a lunch room. That evidence was contradicted by witnesses called by the respondent, including Miss Bulle who gave evidence that there was no bell and that the time when the applicant asked to see the employees was some considerable time before the meal break which began at 12.30 in the afternoon. Miss Bulle impressed me as being a truthful witness and I accept her evidence where it conflicts with that of the applicant.

Accordingly I am not prepared to find that on 5 April 1979 there was a breach by the respondent of clause 31(b) of the award in denying entry to the applicant "during the mid~ day meal to conduct legitimate union business", Further, even if the request which was refused was a request to enter the premises "during the mid-day meal" - contrary to my finding on the evidence - I accept Mr Merkel's submission that the request was not a request "to conduct legitimate union business" within the meaning of the sub-clause. Doubtless it is "legitimate" for the union to seek to enrol members and such an activity may, in one sense, fall within a broad concept of "union

business". However, in my opinion in clause 31(b) of the

award the words "to conduct legitimate union business" in

their context are not intended to confer a right upon two authorised persons to enter a factory as often as they choose during the midday meal for the sole purpose of seeking to persuade the employees to join the union. I reject Mr Nathan's submission to the contrary which he supported by references to the objectives of the union. In the result I do not find it necessary to consider Mr Merkel's other submissions in relation to matter V. No. 3 of 1980. The application is dismissed. a

Turning to matter V. No. 4 of 1980 I accept the evidence of Miss Bulle and Mr Morellato (who is also known as Mr Morell) that the second visit by the applicant, accompanied on this occasion by Mr Broomfield, did not occur on Monday, 9 April 1980. I find on the balance of probabilities that it probably occurred two days later on Wednesday, 11 April 1980. Mr Broomfield also impressed me as being a truthful witness and I accept that in giving evidence he believed that the second visit occurred on Monday, 9 April 1980 but was mistaken. Apart from that one matter I accept Mr Broomfield's evidence as to what happened on the occasion of the second visit by the applicant to the respondent's premises in April 1979.

Although Mr Morellato gave his evidence in a convincing manner I am not prepared to accept his evidence that there was no swearing by Mr Harwood on the occasion of the second visit by

the applicant. Nor am I able to accept the evidence given by

Mr Harwood this morning to that effect. I accept the evidence of Mr Broomfield as to the language used by Mr Harwood (which it is not necessary to repeat in this judgment) including his evidence that Mr Harwood told the applicant and Mr Broomfield to "get out of my factory now, you bludgers" and that he said to the applicant "I can fix you for good ...".

Mr Merkel, in a carefully prepared argument on behalf of the respondent, submitted that on the evidence the Court should find that the request made by the applicant at the second visit to the factory was not made bona fide and had no purpose other than that of harrassment of the respondent. There are many aspects of the evidence given by the applicant which are quite unsatisfactory. In the light of all the evidence and in particular the applicant's evidence I have given very careful consideration to this submission put with force by Mr Merkel and supported by many references to the transcript. However, I am not prepared to find, on a balance of probabilities, that the request made by the applicant at the time of the second visit was not made bona fide.

I am also unable to accept Mr Merkel's submission that in clause 3l(a) of the award the words "access shall be granted to the wages book (etc.) covering all employees ... in the employ of that employer" refer only to books covering employees who are still in the employ of the employer at the time of

the request for access. I am unable to accept that the clause

intends that access shall be granted to wages books covering persons who are still employed but that access may be refused to wages books covering an employee who was dismissed a few days before the request. In my view such a wages book which was a wages book at the time when the person was employed does not cease to become a wages book within the meaning of the clause upon the dismissal of the employee.

Nor am I able to accept Mr Merkel's submission that the award was not binding on the respondent in April 1979. This submission was based upon clause 5 of the award which stated that:

industry ...". Schedule C included "the Victorian Chamber of Manufactures" of which organisation the respondent was a member. I am unable to accept the submission that the intention of clause 5(a) of the award was to make it binding only upon those employers who were members of the Victorian Chamber of Manufactures at the time of the making of the award. I find that the applicant was refused access to the wages books by the respondent and that that refusal constituted

considered that the breach was a technical one and that no

penalty was required in all the circumstances, then it has

a discretion to refrain from imposing a penalty (see Parkinson v. Gragers Co-operative Ltd (1958) 1 F.L.R. 90). However, as I indicated during the course of final addresses I do not regard the breach as being in any sense a technical one. Mr Merkel reformulated that argument by submitting that the Court should exercise its discretion against imposing any penalty on the respondent, having regard to all of the circumstances of this case including the evidence' that the respondent obtained advice from the Victorian Chamber of Manufactures and including the alleged discourtesy by the applicant, both in failing to attend on Monday, 9 April 1979 and in failing to give any apology or explanation for so failing when he attended at the factory on the second occasion. I have taken those matters into account in considering penalty.

The maximum penalty for this breach of the award is $1,000. That penalty should be reserved for the worst breach possible. Further, it has not been suggested that the respondent has previously breached this or any other award. On the other hand clause 31 is an important provision in the award and the union has an important role to play in ensuring that employers bound by the award comply with its

provisions. Clause 31 is intended to assist the union to

carry out its role of enforcing compliance with the award. On the evidence in this case the respondent's breach of

the clause was a serious one in that it was a considered refusal, it was delivered in an extremely offensive way and it was accompanied by two peremptory orders to the applicant to get out and also by a threat to "fix" him for good.

Such a breach of an award of the Conciliation and Arbitration Commission can not be tolerated by this Court, having regard to the public interest in deterring employers from refusing to comply with the clause. I fix a penalty of $500 and order, pursuant to s.120, that the whole of the penalty be