Chartham v Arnotts Biscuits Ltd [1993] QIRC 243 (1993) 143 QGIG 436

436 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE [16 July, 1993 ##### # ############################################## QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act I 990 s. 11.37 - application for reinstatement Ro nald Bernard Chatham AND Arnotts Biscuits Ltd. (No . 8200 of 1993) BISCUIT M AKE RS' AWA RD - SOUT H-EASTE RN AND CENT RAL D IVISI ONS COMMISSIONER BOUGOURE 2 Ju ly 1993 Termin at ion of Employment - Dismissal - App lication for Reinstatement - Sen ior Un ion Delegate - Union preference - Condition of Employment to remain a member of Union - Witness evidence - Number of employees dissatisfi ed wit h efforts of Un ion - Closed shop arrangement - Applicant not re presented by Union - Proposed change of Union gave expectation of higher (Sydney) wage rates - Unauthorised stop work meeting - Distribution of forms to res i gn from one Un io n and enrolment forms for another Union - Bre ach of condition of employment - D isru ption to staff - Div is ive and improper conduct by appl icant - Actions not within duties of Sen ior Union Delegate - If reins tated would continue to campaign for c ha nge of Un io n at work site - Inappropriate to rein state - Application re fused . DECISION By application dated 8 April 1993 Ronald Bernard Chatham applied for reinstatement to his former posi tion as machine operator with Arnotts Biscu i ts Ltd. of Vi rg ini a. Mr Chatham commenced employment with Arnotts Biscu i ts Ltd. (Arnotts) on or about 10 August 1990 and was dism issed on 1 Apr il 19 93 . For reasons whic h will become apparent later in this dec is ion, the application was made by Mr Chatham personally and not by The Federated Miscellaneous Workers Union of Australia, Queensland Branch, Union of Employees (FMWU), the union of which he was a member at the time of termination. In t he latter part of 1991 Mr Chatham became a.job deleg_ate representing approximately 20 persons in the ~utung Machine Sect ion of the factory. Subsequentl y, ,n Apri l 1992 he was elected "convenor" wh ich is the sen io r union delegate for the, approximate, 400 members of the workforce who we re members of the FMWU. The total factory workforce 1s about 700 , such figure includes employees covered by other awards and w ith membership of other unions. So far as Mr Chatham's employment was concerned, the relevant award was the Bi scu it Makers' Award - Sou th-Eastern and Central Divisions. Preference under such award is granted to the FMWU. Fu rthermore, the employer imposes a cond ition of employment that each employee under t he lastmentioned award mu st joi n and remain a member of the FMWU . .on 17 July 19.90 Mr Chatham signed an employment appl,catton form wh,ch included the foll owing words "I undertake to join and remain a member of the FMWU". There is evidence that the employer does strictly enforce t he union membership condition of employment. The applicant gave evidence on his own behalf and also called a Ms B.A. Sm ith, a former employee of Arnotts, as a w i tness . It was the dismi ssal of Ms Smi th wh ich was the c ata ly st for a stop work meeting on 5 Feb ruary 1993, about which I w ill say more later and which was a factor in the history of the dismissal of Mr Ch atham. The respondent employer called the follow ing witnesses:- 1. Kevin Rona ld BENSON, General Manager of Arnotts Biscuits Ltd., Queensland Div is ion. 2. Pau l James INCHES, an Organiser for the FMWU . 3. Alexander Robert BOWMAN, Team Leader in the clean i ng area at Arnotts. 4. Robert Ronald MO RTON, Product ion Department Supervisor at Arnotts. 5. David Boyd BUCHANAN, Production Department Manager at Arnotts. 6. Dorothy ADERMANN, a Senior Hand in the packaging department at Arnotts. 7. Robyn Jill CA TEHOU SE, a Supervisor in the packaging department at Arnotts. 8. Pe ter John JAGER, Human Resources Manager at Arnotts. Documentary exhibi ts were also tendered in the proceedings. The evidence discloses that an overriding factor in this dispute is that a number of employees, and particularly the applicant Mr Chatham, were unhappy with the efforts of the FMWU. In fact, there is evidence that a motion of no confidence in the FMWU was passed at the stop work meeting on 5 Feb ruary 1993. This is one of the possible unsatisfactory featu res of "closed shop" arrangements. A closed shop arrangement may sui t the employer and the union very well, but there is the danger that because of i ts protected position, enforced by the employer, a union may become neglectful of the inte rests of its member s. Because the employer/union arrangement is co-ope ra tive an d support ive, a union ma y also become re luctant to risk up sett ing an arrangement wh ich is most be ne ficial to it from a membership po int of view. Such a closed shop arrangement, wh1ls_t often beneficial, can be detrimental to employees who may ultimately become dissatisfied with the standard of rep resen tation be ing received from the un ion. In this case some dissatisfaction wi th the un io n was out lined before me. It should be no ted that the applicant was not represented by the FMWU in these proceedi ngs and in fact the FMWU Organiser gave evidence for the employer in opposition to t he application for rein statement. This is readi ly understood when it is appreciated that the applicant, although the senior delegate for the FMWU, was actively seeking employees on site to resign from the FMWU and join the Nation al Union of Workers (N UW) . A significant reason for the proposed change of un io ns was a perception that the NUW would be more likely to obtain wage in creases for employees. In th is regard the higher wage ra tes payable at Arnotts' Sydney factory we re highlighted. The view expressed by the applicant was that t he FMWU would not pursue higher wage rates as payable in Sydney. ) r I I I• 16 July, 1993) QUEENSLAND GOVERNMENT INDUS TRIAL GAZETTE 437 Mr Inc hes, the FMWU Organi ser, maintained that under existing wage pr inc iples, the higher Sydney wage rates could not be obtained for the Virginia factory, and this was probably so. This dissatisfaction with t he FMWU al so surfaced in relation to t he resignation of Ms Smith. It is appropriate to initially address t he i ssue of the "Smith res ignation" and the associated unauthorised stop work meeting on 5 February 199 3. Ms Smith, an employee with 11 .5 years service with Arnotts, had a disagreement wi th Mr Bowman, the T earn Leader of the clean ing department, over some restructuring of her duties. The result was that on 1 February 1993 she resigned . After a disc uss ion with Mr Chatham, the senior delegate on site, she then returned to Mr Bowman w i th in approximately 1 hour of res igning and asked that her res ignation be withdrawn. Mr Bowman refused withdrawal of the re signat ion. The issue was pursued by Mr Chatham with Mr Jager, the Hu m an Resources Manager, and ultimately a final decision was left to Mr Benson, the General Manager. Due to the absence of Mr Benson, the is sue was not resolved until 5 February 1993, when Mr Ben son confirmed that the res ignation could not be withdrawn. It seems that Ms Smith submitted her resignation in t he "heat of the moment" and upon mature consideration and after having d is cussed the is sue with Mr Chatham she sought within an hour to withdraw the res ignation. For an employee of 11 .5 years servic e, it does seem prima facie unreasonable that she was not permitted to withdraw her resignation. Certainly the circumstances justifi ed Mr Chatham, as sen ior union del egate, pursuing the matter on her behalf in a reasonable manner. The is sue was also raised with the un ion, however, it was not until approximately 2 .40 p.m. on 5 February 1993 that Ms Smith was formally informed she would not be permitted to withdraw her resignation. Th e "Sm ith res ignation" seems to have caused some discontent on site. The result was that an unauthorised stop work meeting was called for 2.45 p.m. on 5 February 1993. There is conflict as to when Mr Chatham endeavoured to contact the union. Certain ly it seems that it was only after th e stop work meeting was arranged that M r Inches became aware of it. The stop work meeting on 5 Feb ruary 1993 l asted about 45 minutes, but it was a matter of considerable con ce rn to the employer. Th ere is ev idence that this was the first unauthori sed stop work meeting invo lv ing the employees in Bris bane in at l east 38 years, and that a loss of at least $10,000 was involved. The stop work meeting of 5 February 1993 was the cause of some dissension on site and subsequen tly on 10 February 1993 Mr Benson queried Mr Chatham about his assoc iation with the NUW in somewhat specific terms includi ng a question as to whether he was on the NUW payroll and clearly indicated h is displeasure with the stop work meeting. Mr Benson says he advised Mr Chatham to the effect that if there were any more inciden ts like the unauthorised stoppa~e then Mr Chatham would not be at the factory in the future. fhis was re lied upon as a warn ing to Mr Chatham in these proceedings now before me. I have only briefly outlined events rel at ive to the stop work meeting, however, it is necessary to make some general comment about the responsibilities of delega tes, the propriety of the meeting an d t he warn ing given to Mr Chatham. There is no doubt that a jo b del egate can place hi s own employment in jeopardy as a res ult of action taken by him on behalf of fell ow employees. This was recognised in re Bank Officers (State) Boa rd (19 21 ) 20 NSWIR 138 wherein Rol in J. sai d:- "lf a dismi ssa l or refusa l 10 rein sta te can be traced to something in the nature of real 'victimisation' a dismissal or refusal to employ due, say, to the emp loyee's or would-be employee's l eg itimate and proper ac tion in connection with the affairs of a trade or industrial union, that seems to me to be a case in which the Court might probab ly rightly act." . In re Dispute at Broken H ill Pty. Co. Ltd. Steel Works, Newcastle (No. 2) 1961 NSWIR 48 at page 66 Richards, Beattie and Kelleher Jj. said:- "Any case that comes before an ind us trial tribunal involving the dismissal of a union delegate requires anxious consideration by the tribunal with a view to ensuring that no man be unj ust ly penali sed for hi s participation in legitimate activity as a represe ntative of his union. It is bas ic to our system that employees should be organ ized in industrial unions and it is through such unions that approach must be made to the tribuna ls set up. Men who are wil ling to pl ay a part in the affairs of an industrial union are entitled to expect that they will no t be prejudiced in the ir employment becau se of any l eg itimate actions they take in any union office they assume.". In the same case at page 67 it was also sa id:- "Th ese responsi bil iti es include the obligation to have industrial disput es settled by resort to co nstitution al processes and not by direct action or job control. The Commiss io n has pointed out that a delegate becomes, on his appointment as such, not only a representative of the members appointing him but a representative of the union, and that it is h is duty, if a stoppage of wo rk takes place, forthwith to advise the principal officers of the union and to take all reasonable and proper steps to secure a speedy resu mption of work (See In re Building W orkers' Ind us trial U ni on of Au stralia, New Sou th W ales Bra nch, 1954 A.R. 516 at p. 524, and Bank Holiday Strike Cases, 1956 A.R. 629 at p. 640). Thus it is a complete misconception of the pos ition, that a delegate is no more than a mouthpi ece for the men whom he represents." . The above views were adopted by Gallagher J. in H illier and The Australi an Stevedoring Industry Authority (1 963/4) 1OS CAR 901. In that case, at page 907, Gallag he r J. also sa i d:- "But do not attempt to ma intain that a job delegate may place himself outside the law, act in gross abuse of his rights, and at the same time cla im immunity from his wrongdoing.". In The Bu ild ing Workers' In dustrial U ni on of Australia v A.B. M oore Pt y. Ltd. 1977 AI LR 252 Gough C. said that the actions of t he delegate "went far beyond the privilege of his position as the elected representative of his union's members on the hospital site; his actions were an obvious abuse of his powers, even allowing for his annoyance at the alleged departure of the employer from the terms of an alleged agreement concerning broken service". The Commi ss ioner said that faced with the abuse of industrial power and the language used to the Managing Director, the empl oyer was justified in the action it took in terminating his services. The above authoriti es indicate that delegates wi ll be protected in respect of legitimate and proper actions taken within the scope of their functions and responsibilities as a delegate, but that delegates are al so representatives of the re levant un ion and do have responsibilities to that union. As Gallagher J. sa i d:- " ... it is a complete misconception of the position that a delegate is no more than a mouthpiece for the men whom he repre se nts.". The latter statement is relevant to Mr Chatham's assert ion from time to time that he was only carrying out the wi shes of the ran k and fi l e. In this case the relevant award contains a Grievance Procedure, which was not followed in re lation to Ms Sm i th's resignation . This Commission regularly conciliates in relation to disputed dismi ssal s or res ignations. It was clearly qui te improper and imprudent for the stop work meeting to be he ld . Mr Chatham as senior delegate on site must accept responsib il ity for the ho lding of such unauthorised stop wo rk meeting, even though he says that th e rank and file wanted the meeting. There is nothing to indicate that Mr Cha tham discouraged the me et ing. In fact, he went into the work place and act ively sought that certain sections of the workforce attend the meeting even though the FMWU had not authoris ed the meeting. -- 1 of 2 -- 438 QUEENSLAND GOVERNMENT JNDUSTRIAL GAZETTE [16 July, 1993 Whilst I am satisfied that the stop work meeting shou ld not have been he ld, I can also understand that at least some employees we re frustrated by the employers apparent ly unreasonable attitude to Ms Smi th 's request to withdraw her resignation. Furthermo re, I understand that whi l st Mr Chatham had a significant role in the holding of the stop work meeting, a number of other emp loyees must have also supported him, even though it seems that some employees were also reluctant to attend the meeting. Whilst Mr Chatham's act ions in respect of the meeting of 5 February 1993 cannot be approved by me, under all of t he circumstances, I would find it unreasonable for him to lose his employment because of the spec ific events of that day alone. I would record that the "Smith res ignation" is sue was subsequently settled between the parties by payment of a sum of money and Ms Smith did not retu rn to work at Arnotts. The next date of re al consequence is 1 April 1993, on wh ic h date Mr Chatham was dismi ssed. On such date some dissension occurred within the factory because of the handing out to empl oyees of forms to resign from the FMWU and applications to jo in t he NUW . Whilst there is a lack of evidence that Mr Chatham personal ly handed out any such forms, he conceded that it was he who obtained the relevant forms wh ich were distributed by other del egates. No doubt Mr Chatham had some communication with t he NUW about the i ssue . Upon the material before me I am satisfied that Mr Chatham undertook a crucial role in the move to get fel l ow emp loy ees to resi gn from the FMWU and app ly to join the NUW. He concedes he sign ed such forms himself and he did this whi l st the senior del egate for the FMWU. The important features of the above conduct in relation to un ion mem bers hip is that employees were be ing encouraged, in practi ca l terms, to breach the p re ference clause in the award and to al so breach the condit ion of employment involving membership of the FMWU wh ich applied to each employee. If the res ignations from the FMWU were effected each employee so involved render ed himself or herself liable to dismissal. If past practice was fol lowed, it seems t he employer would have effected dismissals and such dism issals would have had the support of s. 13.108 of the Industrial Relations Act 1990. As above indicat ed this matter came to a head on 1 Apri l 1993. On that d ate Ms Gatehouse informed Mr Benson of a "lot of confusion and concern in her department", and of the fact that forms were being ha nded out for employees to sign. M r Chatham was confronted by Mr Benson and questioned about a number of inciden ts, but particularly in relation to the un ion membership i ssue. There was a suggestion that forms we re being handed out in working time but this was denied. It was conceded that forms were han ded out during breaks in the working day. There was al so an al legation that Mr Chatham 's union activities were impairing his work performance and ca us ing a l ot of disruption to other staff in the plant. In general terms the evidence indicates that Mr Chatham pe rform ed his dut ies satisfactorily. Al legations were made that other emp loyees were seen to congregate around his machine. Because he was senior delegate other emp loyees no doubt referred matters to h im and sought his advice. The employer and the union ha d been engaged in negotiating an Enterpri se Bargain Agreement for months and no doubt employees wished to consult with their senior delegate from time to time on issues arising for consideratio n. Furthermore, the evidence is that the other emp loyees came to Mr Chatham, hence the fault largely lies with the other employees and t he ir supervisors. As Gallagher J. said in Hillier and The Australian Stevedoring Industry Authority aforementioned at page 906 "the jo b delegate is entitled to reasonable latitude and should not be prejudiced or harassed in his employment because of h is activities". W hilst one may entertain some doubts, I assume that al l discussions with oth er employees were in relation to matters legitimately wi thin Mr Chatham's functions and responsibiliti es as an FMWU delegate. Overall there is a lack of sa tis facto ry evidence before me 10 support the alleged impaired work performance of Mr Chatham of a nature which would j us tify dismi ssal , hence I wil l not consider that aspect further. The allegation aga in st Mr Chatham of disruption to other staff and the causation of divisiveness on site are matters worthy of further co ns ideration. Upon the material before me I am satisfied that Mr Chathams' actions did cause divisiveness on site and were a cause of concern to some staff. It was an i ssue which management was, under t he circumstances, entitled to view seriousl y. Central to what was occurring was Mr Chatham's desire, with the assistance of the NUW , to achieve Amott 's Syd ney wage ra tes for the employees at Virginia. No doubt this cre ated expectations whi ch many employees found favourable, bu t which, in my view, were impossibl e to achieve at least in the short term. The creation of such expectations served to unnecessarily unsettle staff in the Virginia factory. In so far as wage rates are concerned, it is relevant to note that th is Commission had in l ate 1992 granted mi nimum r ate ad j ustments and established a skill based classification scale. Hence the possibility of substanti al ly changing that sca le in the near future would seem re mote. Furthermore, the parti es had, after months of negotiation, finalised an Enterprise Bargai ning Agreement which was apparently approved on 2 Apri l 1993 and effected some increases in wage ra tes . Thus whi ls t cu rre nt wage princ ip l es remained in place it was unrealistic to expect that Sydney wage rat es we re achievable in the near future1 if at al l. Mr Chatham indicated in evidence that he acceptea that the achievement of Sydney ra tes may t ake a considerable tim e, but his actions do indicate some impatience on his part. Quite correctly the FMWU declined to pursue Sydney wage rates as impracticab le, but whether it adequately explained i ts decision in this rega rd to del egates I do not know. In any event, Mr Chatham clearly considered that the NUW was prepared to more actively pursue Sydney wage rates and no doubt many workers were attracted to the possibility of increased wage rate s. In this context Mr Chatham concedes he was instrumental in having delegates distribute the res ignation forms and NUW application forms previously mentioned. M r Chatham's attitude seems to be that it was im materi al what union had membership on site and that empl oyees were entitled to freedom of choice of unions. Employees were free to join the NUW, but by virtue of t he award p re ference clause and the conditions of e mp loymen t, they mu st remain members of the FMWU. Whether dual union membership would create other difficulties is not my concern at this stage . In actively counselling and assisting other employees to resi gn from the FMWU, Mr Chatham was effectively ask ing other employees to breach t he preference clause of th e award and their condition of employment and render themselves liable to dismissal. Mr Chatham was himself prepared to al so resign. In my view Mr Chatham's cond uct in th is regard was qui te improper and divisive and it was conduct which the employer cou ld not ignore in the course of efficiently managi ng the business and ensuri ng compliance w ith award provi sions. It was conduct which had pers i sted n otw ithstanding that the employer had earlier raised Mr Chatham's possible involvement with th e NUW. When interviewed on 1 April 1993, prior to his dismi ssal, Mr Chatham gave no satisfactory indi ca tion of regret for his activi ti es or that hi s act iv iti es to repl ace the FMWU would cease . Furthermore Mr Chatham's actions, of which real complaint is made, do not fall within his duties as senior delegate of the FMWU. In fact h is subject actions were inconsistent with h is status as senior delegate of the FMWU . In the face of these circums tances, the emp loyers decision to di smiss mu st be j udged. In my view that judgment becomes somewhat eas ier when one appreciates that in assisting to have other employees resign from the FMWU and join the NUW Mr Chatham was acting quite inconsistently with h is responsibi l it i es as FMWU senior delegate. H is actions as aforementioned were not the legitimate and proper actio ns of an FMWU delega te and therefore in that respect he loses any protection wh ich might be afforded to an FMWU delegate on this si te. Mr Cha tham had discussed the i ssue with the NUW and had obtained certain forms from the NUW. It is relevant to state that the officials of the NUW who apparently assisted Mr Chatham should be condemned, but th is cannot excuse Mr Chatham. In Slonim v Fellows (1 984) 1 54 CLR 505 at 515 Wi lson J {w ith whom Mason and Deane JJ agreed) said: I ) I I Il i• lI 16 July, 1993] QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE "(T] he power to direct that A employ B is a very drastic one . . . it will always be a power to be exerc ised with caution having regard to t he circumstances of the case. There will be many cases where the working relationsh ip of employer and employee i s so close that to impose such a relationsh ip by an award wou ld be quite des tructive of industri al harmony.". In North West County Council v Dunn and others (1971) 126 CLR 247 at 253 Barwick CJ said:- "The question i s whether the employer has acted so harshly and so abused his l egal right that an intervention of the arbitral tribunal is necessary to secure j us tice to the particular employee in relation to the employment which he formerly had.". In the instant case there exi sts a long-standi ng situation in whic h the FMWU has award preference and the employer imposes in clear terms a condition of emp loy ment that employees jo in and retain membership of t he FMWU. To seek to change tha t situation in the manner envisaged by Mr Chatham was creating di sha rmony on site in the manner I have outlined. In my vi ew the ci rcumstances I have earlier outlined left the employer with no rea listic alternative but to take some corrective actio n. In my view the action taken in di smissing Mr Chath am was open under the circumstances and particularly beari ng in mind that Mr Ch at ham's actions fell outside his re sponsibilities and functio ns as FMWU delegate, I have no t been satisfied that it was harsh, unjust or unreasonable. In my view the action of the employer does not j ustify the intervention of thi s Commission. The application must therefo re be refused. Since Mr Chatham's d is missal other factors have ar isen wh ich would have to be considered if consideration was being given to the appropriateness of actually ordering reinstatement or re-emp loyment of Mr Chatham. Firstl y, Mr Chatham is no longer a member of the FMWU yet in order to resum e duties he wou ld, it seems, have to seek mem be rshi p of the FMWU in order to comply w ith the preference clause and the usual conditi on of emp loy ment. Under the circumstances involving his admitted activities in relation to the NUW, an application for membership of the FMWU may meet some opposition. Secondly, and more importantly, dur ing cross-examin at ion Mr Chatham conceded that if he resu m ed dut ies at Arnotts he wou ld campai gn to get other employees to res ign from the FMWU. Under cross-examination Mr Chatham did als o state that if the FMWU pursued Sydney wage rates then he wo uld go alo ng wi th tha t since he did not really care what union was involv ed at Arnotts, however, he also conceded that if the FMWU persisted in their present stance on Sydney wage rates then he wou ld renew h is campai gn . The fact that Mr Chatham has not changed his attitude to Sydney wage rates is evidenced by Exh i bit 9 which is a document wh ich he distrib ut ed outside Arnotts factory on the first morning of this hearing. Such docum ent was prepared with the assis ta nce of NUW staff. Under all the relev ant circumstan ces, incl uding the matters j us t outlined, I al so find that circumstances have ar isen subsequent to dismissal which would make it, in practical ter ms , useless to try to re-estab lish the employer/employee re lationship. Therefore in terms of industri al harmony on si te it would be quite inappropriate for Mr Chatham to resume work at Arnotts in any capacity. The appl ic at ion is ref used. The Commission orders accordingly. R.W. BO UGOU RE , Commissioner. Appearao ces: - Mr J. Murdoch, instructed by Mr W.H. Tutt of W.H. Tutt and Quin l an, with h im M r R.B. Chatham, for the applicant. Mr A. Herbert, instructed by Mr G. Harley of Clayton U tz, wi th him Mr P. Jager, for Arnotts Biscui ts Ltd. Operative Date: NI A Decision - Rei ns tatement Rele ased: 2 July 1993 439 -- 2 of 2 --