Case: Australasian Meat Industry Employees' Union v Belandra Pty Ltd (2003) 126 IR 165
Outcome: cited
The reasons pleaded by the Employment Advocate as the prohibited reasons for carrying out the dismissal conduct and the refusal to employ in respect of each individual are these: Mr Stephen Blackadder &#8226; On 27 September 1999, Mr Blackadder gave evidence in a proceeding commenced by Mr Swain under the Act in which Mr Swain sought a reinstatement order against the First Respondent, among other orders (s 298L(1)(k)). &#8226; On 18 and 19 January and 17 February 2000, Mr Blackadder prosecuted a proceeding under the Act against the Third Respondent seeking a reinstatement order, among other orders (s 298L(1)(j)). &#8226; On 29 March 2000, Mr Blackadder obtained the benefit of a reinstatement order of the Australian Industrial Relations Commission ('AIRC') (s 298L(1)(h)). Colin James Hambly &#8226; On 21 July 1999, Mr Hambly commenced proceedings under the Act against the Third Respondent seeking, among other things, a reinstatement order. &#8226; On 30 January 2000, Mr Hambly prosecuted that proceeding (s 298L(1)(j)). &#8226; On 14 February 2000, Mr Hambly obtained an order of the AIRC for reinstatement (s 298L(1)(h)). Paul Gerard Swain &#8226; On 6 May 1999, Mr Swain commenced proceedings under the Act against the First Respondent seeking, among other things, a reinstatement order and prosecuted that proceeding (s 298L(1)(j)). &#8226; On 6 June 2000, Mr Hambly obtained an order of the AIRC for reinstatement (s 298L(1)(h)). Alick James Delaforce &#8226; On 17 February 2000, Mr Delaforce gave evidence and participated in a proceeding commenced by Mr Blackadder under the Act by which Mr Blackadder sought a reinstatement order against the Third Respondent (s 298L(1)(j)). &#8226; Mr Delaforce was both a member of the Australasian Meat Industry Employees' Union ('AMIEU') and a delegate of the Union at the workplace (s 298L(1)(a)). &#8226; Mr Delaforce was dissatisfied with his conditions and was seeking improved conditions of employment for himself and other employees at the abattoir (s 298L(1)(l)). Paul Francis McKenzie &#8226; On 23 June 1999, Mr McKenzie proposed to give evidence and participate in a proceeding under the Act commenced by Mr Jason Robertson against the First Respondent seeking, among other things, a reinstatement order (s 298L(1)(j) and (k)). &#8226; Mr McKenzie was a member of the AMIEU (s 298L(1)(a)); and &#8226; Mr McKenzie was dissatisfied with his conditions of employment (s 298L(1)(l)). Trevor Glen Moss &#8226; Mr Moss was both a member of the AMIEU and a delegate of the Union at the abattoir (s 298L(1)(a)); and &#8226; Mr Moss was dissatisfied with his conditions and was seeking improved conditions both for himself and other employees at the abattoir (s 298L(1)(l)). Terence Anthony Brooks, Rodger Charles Campbell, Gregory Simon Forrest, Michael Robert McKenzie, John Kevin Young and Susan Jane Young &#8226; In respect of all of these individuals, the prohibited reasons are said to be that each of them was a member of the AMIEU and each was dissatisfied with his or her working conditions and in particular, wage levels paid by the relevant abattoir employer (s 298L(1)(a) and (l)). In respect of each allegation concerning dissatisfaction with working conditions, the allegation is made against the background of the Union seeking improved conditions for its members. 10 The Employment Advocate contends that although the conduct of dismissal occurred in September 2002, it was carried out for a prohibited reason deriving from a series of events of engagement between Mr Stuart Ramsey as the guiding mind of the employer entities and, in particular, Mr Justin Davis on behalf of the AMIEU, Mr Moss and Mr Delaforce as workplace delegates of the AMIEU and employee members of consultative committees formed to negotiate aspects of working conditions with Mr Ramsey, which occurred over a lengthy period. 11 The applicant contends that Mr Ramsey acquired, reopened and commenced operating the abattoir in April 1998 expressly on the footing that particular workplace arrangements could be negotiated and approved by the AIRC and that Mr Ramsey's view as to the content and formulation of those conditions would, from time to time as he thought appropriate, endure so as to secure the profitable operation of the abattoir. 364 Apart from these authorities, the notion of a refusal to employ a person has been the subject of discussion in Maritime Union of Australia v Burnie Port Corp. Pty Ltd (2000) 101 IR 435, per Ryan J; Australasian Meat Industry Employees' Union v Belandra Pty Ltd (2003) 126 IR 165 per North J and Employment Advocate v Barclay Mowlem Construction Ltd (2005) 139 IR 19. Although the decision of his Honour in Maritime Union of Australia v Burnie Port Corp. Pty Ltd was the subject of an appeal to the Full Court ( Burnie Port Corp. Pty Ltd v Maritime Union of Australia [2000] FCA 1768 ; (2000) 104 FCR 440), the approach adopted by Ryan J was not attended by error in any respect, on the issue of 'refusal to employ'. Her Honour, Branson J, in Employment Advocate v Barclay Mowlem Construction Ltd found the reasons of Ryan J in the Full Court persuasive and they were these. There is no relevant distinction between refusing to employ an individual and an election by an employer to appoint other individuals to the position. A decision to employ someone else is necessarily a decision not to employ another. That reasoning was adopted by Branson J in finding that a respondent had refused to engage an independent contractor by deciding to award the contract to another party. 366 The respondents criticise the decision in AMIEU and Belandra on the basis that the evidentiary problem discussed by his Honour does not arise in the context of a lack of a vacancy because the applicant can readily show, by evidence, if there is a vacancy. The evidence would demonstrate that someone else was employed or there was an advertisement placed in a newspaper or other forum for a vacancy. Mr Hatcher puts it this way: 'It's not as if one needs to get inside the mind of the person making the decision to know what personally moved him, as it is when one alleges a prescribed reason' . The contention is that the applicant must adduce evidence of an actual, not theoretical, vacancy and demonstrate a refusal to employ that individual for that vacancy. Once that level of precision is made out, s 298V operates. In the absence of that evidence, s 298V has no role to play.