Case: Catusanu v Ray's Guard Security Services (unreported, MD Murphy JR, IR Court of Australia, 29 July 1997)
Outcome: referred to
The first part of Mr Claveria's argument was that, by seeking the assistance of the union on the morning of 24 January 2007, he had recourse to "competent administrative authorities" within the meaning of s 659(2)(e). He relied on Catusanu v Ray's Guard Security Services (unreported, MD Murphy JR, IR Court of Australia, 29 July 1997) (' Catusanu' ). His counsel argued that the expression "competent administrative authorities" was to be broadly construed and, having regard to the status and rights accorded trade unions under Australian law, the expression applied to the union to which Mr Claveria had recourse. Counsel added that s 659(2)(e) was essentially a remedial provision designed to protect an employee against retaliatory termination where the employee took certain legitimate action against an employer in order to redress a relevant grievance. In view of its remedial character, the provision was to be liberally construed to constitute in substance "a catch-all" to cover the range of avenues available at law for the redress of grievance, including resort to a trade union. 11 Mr Claveria also argued that he filed a complaint within the meaning of s 659(2)(e) when he made his complaint to Mr Skourdoumbis by telephone on the morning of 24 January 2007. Alternatively, he argued that a complaint was filed when his complaint to Mr Skourdoumbis about the respondent's treatment was relayed by Mr Seneviratne to Mr Dunstan on the afternoon of that day. Mr Claveria contended that a complaint might be filed, although there was nothing in writing. 12 Counsel for Mr Claveria argued that reinstatement was appropriate and that the respondent's challenge to his work performance was unsubstantiated. In relation to penalty, counsel submitted that the Court should have regard to the serious nature of the contravention: namely, there had been an infringement of a basic right or freedom. Counsel also submitted that there has been a degree of duplicity about Pilkington's reasons and the Court should have regard to this. 15 Pilkington further submitted that the expression "competent administrative authority" did not cover the union or, indeed, any trade union. Counsel for Pilkington referred to the legislative history of s 659(2)(e), the legislative context and dictionary definitions. He submitted that the decision in Catusanu was wrong. Counsel argued that the expression described an authority with the capacity and the right to determine a controversy, which is properly raised with it. In written submissions, counsel said: No attempt to aggregate different sources of authority into a composite 'competent administrative authority' should be considered to create the authority required by section 659(2)(e) of the [Act] . Pilkington contended that: (1) the union was not an administrative authority because it had nothing to administer. Rather, it was "a partisan player in the industrial field"; (2) the 'administration' of the award is not the sole province of the union; (3) s 659(2) "serves the public policy aim of preventing retaliation"; and (4) the powers of the union are not the powers of a 'competent administrative authority'. In the latter regard, Pilkington said: The flavour of the 659(2)(e) section is that of dragging the employer to some third party capable of exercising coercive or investigatory powers. The union fundamentally lacks these. ... The powers of entry and inspection are not sufficient. 16 Counsel for Pilkington argued that, in the circumstances of the particular case, Mr Claveria's allegation of bullying by 'watching' him in the factory could not amount to a complaint of violating any law, in view of the type of work that Mr Claveria performed and his circumstances, including the warnings he had already received. Alternatively, he argued that there was no relevant relationship between the termination and the 'filing of a complaint' or Mr Claveria's recourse to the union. 17 Pilkington argued that, if a contravention of s 659(2)(e) were found, compensation in lieu of reinstatement was the more appropriate remedy. If a penalty were to be imposed, then, so its counsel argued, it should be a modest one in view of Pilkington's good record. 113 The specific question that arises here has apparently been considered on only one earlier occasion, by Murphy JR, in Catusanu . Murphy JR held that the expression "competent administrative authorities" in s 170DF (1)(e) embraced the union of which Mr Catusanu was a member. Mr Catusanu was employed by the respondent company as a security guard from May 1996 until his employment was terminated on 17 November 1997. Two days' earlier, on 15 November 1997, his union had sent a letter of demand to the employer alleging underpayment of some of its members, including Mr Catusanu, and foreshadowing proceedings if the matter were not rectified. Murphy JR stated: [T] he applicant's participation in the union's investigation of the alleged award breaches, and the service of a letter of demand on his behalf by the union, a registered organisation under the Act, is comprehended within the phrase "recourse to competent administrative authorities". Registered organisations are established under the Act. They have been accorded a particular status, and have privileges under the Act. They may be parties to an award. Their privileges include the right of appearance by their officers or employees (s 469), the right to sue for recovery of a penalty for a breach of an award (s 178), or to bring an application under Part VIA (s 170EA). Registered organisations thus have a clearly recognised and important role within the framework of the Act and for that purpose can be easily accommodated within the term "competent administrative authorities". The recourse by the applicant to the union, in circumstances [where] the union lodges a letter of demand on his behalf alleging a breach of an award, is recourse to a 'competent administrative authorit(y)' within the meaning of s 170DF(1)(e). I am not satisfied that the respondent has excluded this recourse as a reason for its termination of the applicant's employment. The respondent has breached s 170DF(1)(e). 114 As previously noted, s 170DF(1)(e) was renumbered as s 170CK(2)(e) by the Workplace Relations and Other Legislation Amendment Act 1996 (Cth) and renumbered again as s 659(2)(e) by the Workplace Relations (Work Choices) Act 2005 (Cth) . The terms of the provision have not changed. There was no formal letter of demand in the present case. However, Mr Claveria's communication to Mr Skourdoumbis about his treatment at Pilkington's factory and his request for assistance, which was taken up by the union and led to Mr Seneviratne requesting Mr Dunstan for a meeting to discuss Mr Claveria's bullying and harassment allegation would constitute "recourse to a competent administrative authority" providing the union is to be regarded as such an authority. 115 The respondent argued that not only was the decision in Catusanu wrong and that I should reject the reasoning in it, but also that under the Act as it now stood the standing of trade unions was significantly diminished. Accordingly, the reasoning in Catusanu had even less force than before. For the following reasons, I reject this submission. 116 Although not constituted by statute, trade unions continue to have a particular and distinct status as registered organizations under the Act. This status indicates that, for some purposes at least, they are capable of constituting "competent administrative authorities", although whether a union has such status in any particular case will depend on the nature of the allegation an employee makes against his or her employer, the relief sought, and whether the union is legally capable of managing, dealing with, or addressing the grievance appropriately. 117 The distinctive status of trade unions appears from the Act. The union in this case is an organisation of employees registered or taken to be registered under the Registration and Accountability of Organisations Schedule (Schedule 1 to the Act). There are various types of workplace agreements to which such a union may be party. Thus, an employer may make an agreement with a trade union in the circumstances referred to in s 328 of the Act, or a union greenfields agreement in the circumstances set out in s 329. Unions may be involved in multiple-business agreements: see s 331. Unions continue to be parties to awards: compare ss 543, 557, 559, 560. They continue to enjoy various rights to make applications to the Commission on behalf of employees: see, e.g., s 559(6). They also enjoy the right of appearance by their officers or employees (ss 100(8), 854(9)); the right to sue for recovery of a penalty for a breach of an award and other industrial instruments and for certain remedies (s 718); or to bring an application under s 643 in respect of termination of employment (s 643(3)); and to apply for an order under s 665 in respect of contraventions of ss 659 and 661. As perusal of the Act readily shows, this list is not in any way exhaustive. 118 Having regard to the breadth and importance of the rights of unions under the Act (some more of which are referred to below) it does not seem to me that a union is appropriately characterised as merely "a partisan player in the industrial field", as the respondent would have it. Whilst individuals may have some of the same rights as a union, they do not have the same aggregate of rights. Nor do they have them for precisely the same reasons as trade unions. Moreover, even if a union were appropriately characterised as "the advocate and advisor" of the employee, the union would not thereby cease to be a body "outside" the employer. Further, whilst the current Act may impose greater restrictions than previously on unions and their powers (for example, regarding a union representative's right of entry to investigate a suspected breach, discussed below) the character of trade unions and their powers remain largely the same. 119 Plainly enough, a trade union will not be a "competent administrative authority" for every grievance. Whether or not it has this status will depend on the nature of the grievance and the union's legal capacity to manage, deal with, or otherwise appropriately address it. As it happened, the union in this case had power by virtue of statute and the certified agreement to investigate and manage the allegation of workplace bullying and harassment, which Mr Skourdoumbis reasonably believed Mr Claveria had communicated to him on the morning of 24 January 2007. 120 By virtue of the Pilkington (Australia) Limited Automotive Division, Laverton Operations Agreement 2006 ('the certified agreement'), which was made pursuant to the former s 170LJ and certified by the Commission pursuant to the former s 170LT, the union could manage Mr Claveria's grievance. The certified agreement applied to Mr Claveria's employment. 121 The objectives of the certified agreement relevantly included the provision of "a healthy, safe and non-discriminatory working environment whilst ensuring compliance by the parties with all applicable occupational health and safety, equal opportunity and WorkCover legal requirements" (clause 6(v)). The certified agreement entitled the union to participate in a process to resolve grievances raised by Pilkington's employees. Amongst other things, the parties agreed, in clause 18(ii), that: ... subject to the provisions of the Workplace Relations Act 1996 as amended, all grievances, claims or disputes whether relevant to this Agreement or any other matter, shall be dealt with in the following manner so as to ensure the orderly settlement of the matters in question: (a) Any grievance or dispute that arises shall, where possible, be settled by discussion on the job between the employee and direct supervisor (e.g. Shift Co-ordinator or Site Leader). (b) If the matter is not resolved at this level, the matter will be further discussed between the employee concerned, the shop steward, the supervisor and the appropriate manager. (c) If no agreement is reached, the relevant Union official and shop steward will discuss the matter with the manager and the Company's nominated industrial relations representative. (d) Subject to the rights of the parties, should the matter still not be resolved, it shall be referred by either party to the Australian Industrial Relations Commission or to a third party mutually agreed. That is, under the certified agreement, the union was entitled to require that Mr Claveria's grievance be dealt with by discussion between union representatives and Pilkington and, if this failed, the union was entitled to refer the matter to the Commission. Pursuant to s 718 of the Act, the union was entitled to institute proceedings in a court for a penalty in relation to a breach of a term of the agreement. Further, as appears below, certain union representatives had rights of entry to the workplace in respect of suspected breaches of the agreement: see [123] and [125].