Re Wayne Laurance Savage and Director-General of Social Services [1982] AATA 287 (15 December 1982)

ADMINISTRATIVE APPEALS TRIBUNAL

Re: WAYNE LAURANCE SAVAGE
And: DIRECTOR-GENERAL OF SOCIAL SERVICES
No. N81/165
Unemployment benefits

COURT

ADMINISTRATIVE APPEALS TRIBUNAL
GENERAL ADMINISTRATIVE DIVISION
D.G. McGregor J.

CATCHWORDS

Unemployment benefits - industrial action - dismissal following refusal to sign letter giving undertakings - no cessation of industrial action after dismissal - closed period when unemployed - participant not qualified to receive benefits.

Social Security Act 1947 s.107

HEARING

CANBERRA
15:12:1982

ORDER

The Tribunal affirms the decision dated 26 August 1981 rejecting the applicant's claim for unemployment relief.

DECISION

WAYNE LAURANCE SAVAGE (applicant) has applied pursuant to s. 15A of the Social Security Act 1947 (the Act) to have a decision dated 26 August 1981 referred to below reviewed by the Administrative Appeals Tribunal (Tribunal). In his application dated 11 September 1981 for review of decision the following matters appear -

"4. The decision to be reviewed is: The decision of the First Assistant Director General Legislation and Review of the Department of Social Security dated 26 August, 1981 rejecting the applicant's claim for unemployment benefits.

5. The name of the person who made the decision is Mr. S.F. SKEHILL.

6. The office, appointment or title of the person who made the decision is: The First Assistant Director General Legislation and Review of the Department of Social Security.

7. The reasons for the application are:

a) That the First Assistant Director General erred in law in finding that the applicant's unemployment was due to his engaging in industrial action and that he was therefore not qualified to receive unemployment benefits in terms of Section 107(4) of the Social Services Act, 1947.

b) That the First Assistant Director General erred in law in finding that the provisions of Section 107(5) of the Social Services Act, 1947 had no application to the applicant's claim."

Pursuant to s.37 of the Administrative Appeals Tribunal Act 1975, documents

have been lodged with the Tribunal (the s.37 documents). These were tendered in evidence by the respondent at the invitation of applicant's counsel. Included therein is a statement of findings on material questions of fact, evidence, and reasons for the decision. No evidence has been called by the applicant.

In the last mentioned document abbreviations, including the following, are adopted -

""AMWSU" means Amalgamated Metal Workers and Shipwrights Union
"the Department" means the Department of Social Security
"the Director-General" means the Director-General of Social Services
"NSW" means New South Wales
"SSAT" means Social Security Appeals Tribunal"

These abbreviations can conveniently be followed here.

The DIRECTOR-GENERAL OF SOCIAL SERVICES has been named as respondent to this application.

Section 107 of the Act so far as is relevant, reads -

(1) Subject to this Part, a person (not being a person in receipt of a pension under Part III or IV or a service pension under the Repatriation Act 1920) is qualified to receive an unemployment benefit in respect of a period (in this section referred to as the "relevant period") if, and only

if -

(a) the person had attained the age of 16 years before the commencement of the relevant period and, being a man, had not attained the age of 65 years, or, being a woman, had not attained the age of 60 years, before the end of the relevant period;

(b) the person resided in Australia throughout the relevant period and on the date on which he lodged his claim for the benefit and -

(i) had resided in Australia for a period of not less than 12 months immediately preceding that date; or

(ii) satisfies the Director-General that he is likely to remain permanently in Australia; and

(c) the person satisfies the Director-General that -

(i) throughout the relevant period he was unemployed and was capable of undertaking, and was willing to undertake, paid work that, in the opinion of the Director-General, was suitable to be undertaken by the person; and

(ii) he had taken, during the relevant period, reasonable steps to obtain such work.

(2) (3) . . . . . .

(4) A person is not qualified to receive an unemployment benefit in respect of a period unless -

(a) the person satisfies the Director-General that the person's unemployment during that period was not due to the person being, or having been, engaged in industrial action; and

(b) the Director-General is satisfied -

(i) that the person's unemployment during that period was not due to another person or other persons being, or having been, engaged in industrial action; or

(ii) if the Director-General is satisfied that the person's unemployment during that period was due to another person or other persons being, or having been, engaged in industrial action - that the first-mentioned person was not, during that period, a member of a trade union of which the other person was a member, or of which any one or more of the other persons was or were a member or members, during that period.

(5) Sub-section (4) does not disqualify a person from receiving unemployment benefit in respect of a period occurring after the cessation of the relevant industrial action.

(6) . . . . . .

(7) In this section -

"industrial action" means -

(a) the performance of work in a manner different from that in which it is customarily performed, or the adoption of a practice in relation to work, a result of which is a restriction or limitation on, or a delay in, the performance of the work;

(b) a ban, limitation or restriction on the performance of work or on acceptance of, or offering for, work; or

(c) a failure or refusal by a person to attend for work or a failure or refusal to perform any work at all by a person who attends for work,

but does not include the performance of work in a manner, the adoption of a practice, a ban, limitation or restriction, or a failure or refusal, that is authorized by the employer of the person concerned;

. . . . . .

"unemployment", in relation to a person, includes -

(a) unemployment of the person arising by reason of a person or persons being, or having been, engaged in industrial action;

(b) unemployment of the person resulting from the termination of his employment; and

(c) the person being, or having been, stood down or suspended from his employment or work.

(8) For the purposes of this section -

(a) conduct is capable of constituting industrial action notwithstanding that the conduct relates to part only of the duties that persons are required to perform in the course of their employment;

(b) a reference to industrial action shall be read as including a reference to a course of conduct consisting of a series of industrial actions; and

(c) . . . . . . "

It is common ground that all material times the applicant was a member of

AMWSU employed as a fitter by Tooheys Limited at their Auburn Brewery. AMWSU is one of what are referred to in proceedings before the Tribunal as Maintenance Unions.

It appears that in 1980, Tooheys Limited experienced some industrial troubles related to the seeking by employees and unions of a 35 hour week. A Calendar of Events supplied by that company and and the Statement of Findings on Material Questions of Fact (referring to the evidence upon which those findings are based) are part of the s.37 documents. The said findings include:-

"1. On 11 November 1980 the applicant, WAYNE LAURANCE SAVAGE lodged a claim for unemployment benefit. On the claim the applicant stated, among

other things, that:

(a) his last employer was Tooheys Ltd;

(b) his occupation was fitter and turner;

(c) the date on which he last worked was 6 November 1980; and

(d) the reason for ceasing work was "retrenched".

2. In a telex dated 14 November 1980 from the acting Assistant Director (Policy & Standards) of the Department in NSW, all regional and area managers in NSW were advised, among other things, that:

(a) an industrial dispute existed between Tooheys Ltd., Auburn and a number of unions;

(b) one of the unions involved was the AMWSU; and

(c) any claims for benefit from employees involved in the dispute should be held in abeyance pending a decision on eligibility.

. . . . . . .

8. In an employer's report Tooheys Ltd. advised on 8 December 1980 that:

(a) the applicant was employed as a fitter;

(b) the applicant last worked on 10 November 1980; and

(c) his services were terminated for reasons other than shortage of work.

. . . . . . .

18. On 30 April 1981 a letter was sent to the Personnel Officer, Tooheys Ltd. seeking the further information.

19. Tooheys Ltd. replied in a letter dated 1 May 1981 and, among other things, advised that:

(a) on 11 November 1980 a total of 420 employees was dismissed due to their refusal to perform work in accordance with the terms of their Award;

(b) on 19 December 1980 all the employees were reinstated with all service being considered as continuous;

(c) none of the employees was paid by Tooheys Ltd. during the period from 11 November to 19 December 1980 inclusive; and

(d) "All dismissals resulted from the personal refusal of duty by the employees due to their Union's campaign for improved pay and conditions."

. . . . .

"33. The delegate accepted that in September 1980 members of the Federated Liquor and Allied Industries Employees' Union of Australia and several maintenance unions, including the AMWSU of which the applicant is a member, commenced a campaign of industrial action in support of a demand for improved wages and working conditions in the brewing industry.

34. The delegate was satisfied that the ensuing series of stoppages, strikes and other forms of direct action carried out by members of the AMWSU and other maintenance unions constituted "industrial action" as defined in sub-section 107(7) of the Act. Consequently, the delegate concluded that the applicant's unemployment was due to his engaging in industrial action and, therefore, he was not qualified to receive unemployment benefit in terms of sub-section 107(4) of the Act. The delegate did not accept that the industrial action ceased when the employer/employee relationship was terminated as it seemed that the unions involved, and their members, were not then prepared to accept employment with their former employer without settlement of the dispute which led to the applicant's dismissal. Therefore, the delegate considered that sub-section 107(5) of the Act had no application in this case (Paragraphs 26,27 and 28 refer).

35. The delegate therefore affirmed the decision that the applicant was not qualified to receive unemployment benefit and that the applicant should be denied unemployment benefit."

Some further reference to facts will assist. From the Calendar of Events

earlier referred to, it is clear that since September 1980 up to 11 November 1980, there had been a campaign by unions including AMWSU and their members including those at the Auburn Brewery owned by Tooheys Ltd. seeking a 35 hour working week. As part of the campaign there were stoppages, bans, limitations and restrictions on performance of work. On and after Friday 7 November 1980, employees including again those at the Auburn Brewery, were asked to sign a letter that the employees signing were prepared to work in terms of their award without participating in further disruption of normal production. There was a mass meeting at Auburn Brewery. Employees refused to sign the letter. They were dismissed summarily. The applicant was not approached until 11 November 1980; but then refused to sign and was also dismissed similarly.

Counsel for the applicant summarised the facts he said emerged from the whole collection of documents thus -

(i) The relevant period of unemployment was between 11 November 1980 and

22 December 1980.

(ii) Immediately prior to 11 November 1980 members of applicant's union, AMWSU, employed by Tooheys Ltd. at its Auburn Brewery had conducted a series of stoppages which could be characterised as industrial action. Stoppages thus involving absence from work and therefore loss of pay, being industrial action, could not be the subject of a claim for unemployment benefits because they fall within the definition of industrial action (i.e. within the meaning of the Social Security Act 1947 s.107(7)).

(iii) On 11 November 1980 applicant was dismissed, his contract of employment terminated.

(iv) At the time of dismissal i.e. on the morning of 11 November 1980 he was not on strike, engaged in any ban, limitation or other industrial action (though he agreed that there was one planned; or there was reference (i.e. in the papers) to future proposed action).

(v) The reason for the dismissal was the refusal to sign the letter which itself did not constitute industrial action.

(vi) The material does not show he was instructed or requested to resume work until a telephone call to the Union a day or so prior to 22 December 1980.

(vii) During the period of unemployment applicant regarded himself as dismissed and therefore unemployed.

As to the legal implications of these facts, he submitted that any

industrial action preceding 11 November 1980 ceased by reason of the employer's termination of the contract; the legislation is aimed at avoiding the recovery of unemployment benefits by persons on strike or because they are engaged on some ban or limitation or industrial action. He referred to sub-s.107(4) of the Act. He submitted that a strike, ban or limitation does not of itself end the contract of employment. He referred to Australian Journalists' Association v. Advertiser (unreported, 28 July 1982) at pp.4, 5; The Metal Trades Award 1941 (1950) 69 C.A.R. 108 at p.110; Automatic Fire Sprinklers Pty. Ltd. v. Watson [1946] HCA 25; (1946) 72 C.L.R. 435 at p.465. He submitted the decision to dismiss ended the relationship of employer employee; then the activity as an employee or the lack of it cannot be said to be "industrial action" which falls within paras.(a), (b) or (c) of the definition of it in s.107(7). He referred to s.107(5) as a section which overrides anything within sub-s.(4).

Counsel for respondent submitted there was really no factual issue; a material matter would be the inferences from the facts; that the applicant was dismissed because of industrial action not because of refusal to sign the letter, the industrial action being a campaign from September to November 1980; that there was no issue that applicant was unemployed from 11 to 22 December 1980; the termination of employment did not mark the cessation of industrial action. He referred to the Act ss.12, 13, 15. He argued that after 11 November 1980 industrial action continued. This was a matter which could be inferred from the transcript of the hearing before Liddy J. on 12 November 1980 and the assertions by counsel for Tooheys Limited and the presence of pickets; the wording of the telex dated 24 November 1980, the statement by the President of the Industrial Commission of New South Wales in Court session on 20 November 1980 including that the campaign in support of improved wages and working conditions is "in operation in the brewing industry . . . and that resolutions by the union membership involving either the working of a nine day fortnight or, alternatively, a one day strike once a fortnight, are in force". He submitted that termination of employment did not of itself indicate a cessation of relevant industrial action; and that, further, the letter dated November 1980, offered to the applicant, amongst others, for signature, in his case on 11 November 1980, in terms, supported that there was to be participation in further (i.e. future) disruption of normal production. In effect, it indicated a refusal by the applicant to refrain from imposing further bans etc. or activities disrupting production. The conclusion by the Director-General expressed in a memo in the s.37 documents (T.8 para.18) supported this continuation. He drew attention to Counsel's statement at the Industrial Commission including the reference to Maintenance Union pickets at the gates of Auburn Brewery even though Counsel there was appearing for the Federated Liquor and Allied Industries Employees' Union of Australia.

He referred to the detailed entries in the Calendar of Events; entries not only referable to maintenance unions, nevertheless, indicating part of a campaign. He relied on the Calendar entry for 11 November 1980 including the reference to a mass meeting as supporting that the dismissal was preceded by continuing industrial action; there was, he argued, not a dismissal merely because of refusal to sign "a piece of paper"; but that termination was because employees were refusing to work in accordance with the award or without further disruption amounting to industrial action. He referred to the Brewery Employees Award including clause 16 thereof; the Industrial Arbitration Act 1940 s.99 as to strikes being illegal. He submitted the statement on 20 November 1980 of the President of the Industrial Commission, from which words have been quoted earlier, supported that a campaign was then in force and had continued on and after 11 November 1980.

I accept that the evidence supports that there was continuing, sometimes intermittent, industrial action by the unions, including maintenance unions, up to and including 11 November 1980, with no sign of cessation to that time and continuing thereafter up to 19 December 1980. Evidence which supports this include -

(i) That there had been industrial action which continued up to 11 November 1980 at the Auburn Brewery by unions and their members including

AMWSW and the applicant.

(ii) After 11 November 1980 employees, including the applicant, were, by declining to sign the letter presented to them on that date, refusing to indicate willingness to work in terms of their award i.e. without participating in further disruption.

(iii) On 11 November 1980 there was a mass meeting at Auburn Brewery; employees refused to sign the letter and were dismissed.

(iv) The contents of the letter dated 1 May 1981 from Tooheys Limited including the reason given for the dismissal of the 420 employees; and the reference there to the "personal refusal of duty by employees due to their Union's campaign for improved pay and conditions"; and the reference to an existing campaign for improved pay and conditions.

(v) What was said by Counsel for Tooheys Limited at the proceedings before Liddy J. on 12 and 13 November 1980 including his own then present reference to pickets at the Auburn Brewery and the request by the Minister that all matters in dispute at the Auburn Brewery be referred to the Commission Court session.

(vi) The statements made on 20 November 1980 by the President of the Industrial Commission of New South Wales in Court session.

(vii) The calendar of events supplied by Tooheys Limited.

On all the evidence I am satisfied that the applicant up to 11 November 1980

and thereafter to 19 December 1980 had taken part in industrial action; inasmuch as he, with others, by the various aspects of the campaign in which they were engaged -

had been guilty of the adoption of a practice or practices in relation to work, a result of which was a restriction, limitation on and delay in the performance of work;

had taken part or been concerned in bans, limitations and restrictions on the performance of acceptance of or offering for work;

had before and up to the 11 November 1980 failed or refused to attend for work.

Having regard to s.107(4) of the Act, I am satisfied that the applicant is not qualified to receive any employment benefit for the period 11 November 1980-19 December 1980.

I am not satisfied that the applicant's unemployment was not due to his, during the period 11 November-19 December 1980, being or having been engaged in industrial action.

Further, I am not satisfied that the applicant's unemployment during the period 11 November-19 December 1980 was not due to another person or other persons being or having been engaged in industrial action.

Further, I am satisfied that the period 11 November 1980-19 December 1980 was, in terms of s.107(5), not one occurring after the cessation of relevant industrial action.

The decision dated 26 August 1981 rejecting the applicant's claim for unemployment relief is affirmed.