¹ State and Commonwealth legislative provisions concerning the victimisation of employees are as follows:

Commonwealth: Conciliation and Arbitration Act 1904 (Cth), s. 5;

New South Wales: Industrial Arbitration Act 1940-1975 (N.S.W.), s. 95;

Queensland: Industrial Conciliation and Arbitration Act 1961-1976 (Qld),

s. 101;

South Australia: Industrial Conciliation and Arbitration Act 1972-1975 (S.A.),

ss. 156, 157;

Tasmania: Industrial Relations Act 1975 (Tas.), s. 60; Victoria: Labour and Industry Act 1958 (Vic.), s. 204;

Western Australia: Industrial Arbitration Act 1912-1975 (W.A.), s. 135.

² The “victimisation” provisions in all states have similar wording. Only the Queensland section penalises a refusal to employ any person on the prohibited grounds.

³ All states, except South Australia and Victoria, have similar wording in their unlawful dismissal provisions.

In South Australia an employer is prohibited from injuring an employee in his employment by reason only of the fact that the employee is, or is not, an officer or member of an association, or is entitled to the benefit of an award or industrial agreement: Industrial Conciliation and Arbitration Act 1972-1975 (S.A.), s. 157. On the other hand, an employer is not prohibited from altering an employee's position to his prejudice by victimisation on these grounds. Nor is the employer penalised for injuring an employee in his employment or altering an employee's position to his prejudice in consequence of the employee's becoming a member of a Conciliation Committee or being a party to, or giving evidence before, an industrial tribunal. Further, an employer is not prohibited from these lesser forms of victimisation if the employee takes part or becomes involved in any industrial dispute. See Industrial Conciliation and Arbitration Act 1972-1975 (S.A.), s. 156.

In Victoria, victimisation falling short of discharge is not prohibited.

⁴ The New South Wales and Queensland provisions are almost identical. In Victoria, Western Australia and Tasmania, 'the relevant provision reads: “by reason merely of the fact ... “ (italics added). Thus if the employer's motives are mixed (some lawful, some unlawful) the dismissal or other act of victimisation will not be penalised. In South Australia, the relevant words in s. 157 are “by reason only of the fact ... “. It does not follow that employees in Squth Australia face the same hurdle as their Victorian, Western Australian and Tasmanian counterparts, for the defendant in South Australia is obliged to show that the employee was dismissed or injured.in his employment “for some substantial reason other” than the prohibited grounds: Industrial Conciliation and Arbitration Act 1972-1975 (S.A.), s. 157.

⁵ The relevant provisions in Queensland, New South Wales, South Australia and Western Australia cover union officials and members. Moreover, only the Queensland, Western Australian and, possibly, the South Australian sections protect officials and members of unions which have applied to be registered. But South Australia seems to be the only state where officials in an unregistered union are covered. No state prohibits victimisation against candidates for union office or for the position of job delegate. Further, no state penalises discrimination against farmer officers, delegates or members of a trade union.

The New South Wales and South Australian sections protect employees who are officials of Conciliation Committees. Moreover, in South Australia, an employee who acts in the capacity of a member of a Conciliation Committee is protected. There is no similar protection in the New South Wales Act.

The relevant provisions in wages board states, Victoria and Tasmania, safeguard employees who are members of the boards. The Tasmanian section also penalises employers who discriminate against employees who act in the capacity of members of an industrial board.

⁶ The unlawful dismissal provisions in the Queensland, South Australian, Western Australian and Tasmanian statutes have almost identical wording. There is no equivalent provision in Victoria.

The Queensland section also prohibits victimisation of an employee who has “claimed the benefit of an industrial agreement or award”. This corresponds closely with the New South Wales provision.

⁷ The phrasing of the Queensland, New South Wales and Tasmanian sections corresponds with this part of the federal provision; the South Australian section is broadly similar. There is no equivalent provision in Western Australia or Victoria.

In most states, victimisation of an employee who proposes to appear as a witness or to give evidence in a proceeding under the Act is not prohibited. On the other hand, the Industrial Conciliation and Arbitration Act 1961-1976 (Qld),

s. 101(2) penalises an employer if he threatens to dismiss an employee, injure him in his employment or alter his position to his prejudice.

The Victorian and Tasmanian sections prohibit the dismissal of an employee who has given an inspector information with regard to matters under the relevant wages board statutes. The Tasmanian provision also confers protection upon an employee who gives information about his working conditions to an officer of an organisation or association of employees to which he belongs: Industrial Relations Act 1975 (Tas.), s. 60(1) (c). The phrase “conditions under which he is employed” in this section is quite broad; it encompasses far more than the employee's entitlement under an award or statute.

The New South Wales provision is similar. It protects an employee who “has informed any person that a breach or suspected breach of an award or industrial agreement has been committed by” the employer (italics added): Industrial Arbitration Act 1940-1975 (N.S.W.),s. 95(bl). Note an employee giving information about a breach of statutory obligations or discrimination short of an infringement of an award or an industrial agreement is not protected. See generally, Bowen v. Read 1956 .R. (N.S.W.) 873.

In the Queensland, South Australian, Western Australian and Commonwealth jurisdictions there are no equivalent provisions. But see: Industrial Conciliation and Arbitration Act 1961-1976 (Qld), s. l0l(l)(d) and Conciliation and Arbitration Act 1904 (Cth), s. 5(1)(d).

⁸ This provision was inserted in the federal Act by the Commonwealth Conciliation and Arbitration Act 1920 (Cth), no doubt in response to the remarkable decision in Pearce v. W.D. Peacock & Co. Ltd (1917) 23 C.L.R. 199. Only the Queensland statute contains an equivalent provision. Thus the patent injustice of Pearce v. W.D. Peacock & Co. Ltd (1917) 23 C.L.R. 199 may recur in the other states.

⁹ The Queensland provision is identical with the Commonwealth section, while the New South Wales provision is broadly similar. There is no equivalent clause in the Western Australian or South Australian statutes. But see Industrial Conciliation and Arbitration Act 1972-1975 (S.A.), s. 156(1)(b). In Tasmania and Victoria, an employee who absents himself from work through being engaged in duties as a member of a wages board or an industrial board will be protected even if he does not apply for leave, provided he gives his employer reasonable notice of his intention.

¹⁰ This provision was inserted in the federal statute by the Conciliation and Arbitration Act 1973 (Cth), s. 6. It arose out of the Federal Government's concern to protect shop stewards from victimisation in pursuit of legitimate activities on the shop floor. There are three major qualifications in this provision: first, the officer or delegate must act lawfully; second, his actions must be for the purpose of promoting or safeguarding the interests of the organisation or its members (probably an objective test); third, the actions must be within the scope of his express authority properly conferred by the organisation of which he is an official or delegate. There is no equivalent provision in State statutes.

¹¹ In Queensland, the penalty for any of the prohibited forms of victimisation is $200. In New South Wales, South Australia and Western Australia, it is $100. The Victorian penalty is $50 (originally introduced by the Factories and Shops Act 1910 (Vic.), s. 4). It has not subsequently been increased. The Tasmanian provision has recently increased the penalty from $40 to $200, see Industrial Relations Act 1975 (Tas.), s. 60<(1 ) .

¹² The Queensland provision is identical. Thus in Queensland a candidate for union office is protected from threats to dismiss but not the actual discharge! And a former union official is protected neither from the threat to dismiss nor the dismissal itself.

In Tasmania, employees are, in certain circumstances, protected from a threatened dismissal but, once again, candidates for union office and former union officials are not safeguarded. Further the Tasmanian provision does not penalise the dismissal of an employee who proposes to appear as a witness or proposes to give any evidence in a proceeding under the Act.

This form of intimidation short of discharge is not penalised in New South Wales, Victoria, South Australia or Western Australia.

¹³ There is no equivalent provision in any of the state statutes dealing with unlawful dismissals.

¹⁴ In Queensland and New South Wales, the provision is identical with the Conciliation and Arbitration Act 1904 (Cth), s. 5(4).

The Western Australian and Tasmanian sections carry a stricter onus since the defendant is obliged to show that the victimisation was for some reason other than that mentioned in the section.

In Victoria, the Crown apparently has the onus of establishing all the elements of the offence including the employer's improper motive, see Alley, Industrial Law in Victoria (1973) 213.

The South Australian provision is broadly similar to its counterparts in the Queensland, New South Wales and federal jurisdictions.

¹⁵ The reinstatement remedy is discussed in detail, infra, 155-159.

¹⁶ Industrial Conciliation and Arbitration Act 1961-1976 (Qld), s.101(1).

¹⁷ See Derrick v. Dangar [1921] A.R. (N.S.W.) 40, where the Industrial Commission of New South Wales held that the words “dismisses from his employment” in a predecessor of s. 95 of the Industrial Arbitration Act 1940-1975 (N.S.W.) de· not include a refusal to employ a casual employee after a temporary lay-off.

¹⁸ See Industrial Arbitration Act 1940-1975 (N.S.W.), s. 95(bl).

¹⁹ The only exceptions are the federal and Queensland jurisdictions. See: Conciliation and Arbitration Act 1904 (Cth), s. 5(1) (d) and Industrial Conciliation and Arbitration Act 1961-1976 (Qld), s. 101(1) (d).

²⁰ Industrial Conciliation and Arbitration Act 1961-1976 (Qld), s. 101 (2).

²¹ Conciliation and Arbitration Act 1904 (Cth), s. 5 (lA).

²² The Queensland provision prohibits a threatened dismissal of a candidate for union office or a person who proposes to give evidence in an industrial proceeding, but it does not penalise the dismissal of these persons.

²³ (1975) 8 A.LR. 197.

²⁴ (1975) 8 A.LR. 197, 208.

²⁵ In May 1968, 33 % of Victorian workers were covered by State awards and 52% by federal awards: Australian Bureau of Statistics Labour Report No. 58 1973 (1974) 122.

²⁶ In May 1968, 72.1% of Western Australian workers were covered by State awards and 16.6% by federal awards: Labour Report, op. cit., 122.

²⁷ (1939) 62 C.L.R. 573.

²⁸ (1939) 62 C.L.R. 573, 594.

²⁹ Pearce v. W.D. Peacock & Co. Ltd (1917) 23 C.L.R. 199;Ferguson v.George Foster & Sons Pty Ltd (1969) 14 F.L.R. 370.

In Queensland, proceedings may be instituted by “an industrial union,, a member or officer thereof, an industrial inspector, an employer, the Minister or any other person interested in the cause or matter” (italics added): Industrial Conciliation and Arbitration Act 1961-1976 (Qld), Schedule 1, Clause 1. Thus, in Queensland, an aggrieved party has an individual right of complaint.

In South Australia, proceedings for an offence under s. 157 of the Industrial Conciliation and Arbitration Act 1972-1975 (S.A.) may be initiated and prosecuted by the aggrieved party or by an inspector. S. 157 contains no guidance as to the proper prosecutor in an offence under that section. Likewise the Victorian, Tasmanian and Western Australian provisions make no mention of the proper complainant. Presumably the Crown is the normal prosecutor in these cases: see Labour and Industry Act 1958 (Vic.), s. 204; Industrial Relations Act 1975 (Tas.)s. 60; Industrial Arbitration Act 1912-1975 (W.A.), s. 135.

The procedure in New South Wales is distinctive. A prosecution under s. 95 of the Industrial Arbitration Act 1940-1975 (N.S.W.) may not be instituted without the leave of the Industrial Commission. An applicant must establish a prima facie or a reasonable case before leave will be granted. He must have weighed down the scales in his favour on all those facts which he must establish in order to support the charge. In addition, he must point to facts, which, if they were left unexplained, would raise an inference that his dismissal contravened the section: Re Tailoresses' Union of N.S.W. (1902) 19 W.N. (N.S.W.) 89; Anderson v. Collibee 1956 A.R. (N.S.W.) 136; Campbell v. B.H.P. Co. Ltd 1960 A.R. (N.S.W.) 593;Halliday v. Friendenreich [1908] A.R. (N.S.W.) 362. Upon such an application the Commission will not go into the merits of the case. But the application must be founded on legal evidence; hearsay will not suffice: Campbell v. B.H.P. Co. Ltd 1960 A.R. (N.S.W.) 593; McHenry v. Lysaghts Works Pty Ltd 1950 A.R.(N.S.W.) 412; Re Tailoresses' Union of N.S.W. (1902) 19 W.N. (N.S.W.) 89.

Where the applicant is a trade union, leave will be withheld unless the union is registered as an industrial union under the Act: Watkins v. Hanrahan 1968 A.R. (N.S.W.) 287. A prosecution may be instituted by the secretary of the appropriate union but leave to prosecute will not be granted where it appears that the secretary is acting on his own initiative and in opposition to his union: Sheridan v. Central District Ambulance Committee [1927] A.R. (N.S.W.) 342.

If the employee dismissed has a strong prima facie case of victimisation and he is not a member of a registered union, the Industrial Commission may institute proceedings on its own motion: Watkins v. Hanrahan 1968 A.R. (N.S.W.) 287.

³⁰ The Conciliation and Arbitration Amendment Act (No. 3) 1976 provided for the transfer of jurisdiction under the Conciliation and Arbitration Act 1904 from the Australian Industrial Court to the Federal Court of Australia (see Federal Court of Australia Act 1976) and for the abolition of the first mentioned court.

The Conciliation and Arbitration Act 1973 had changed the title of the Commonwealth Industrial Court to that of the Australian Industrial Court.

³¹ Such an application is necessary in New South Wales: supra, n. 29.

³² Bowling's case (1975) 8 A.L.R. 197.

³³ Ibid.

³⁴ Conciliation and Arbitratiqn Act 1904 (Cth), s.5(4). However, in the Commonwealth section, the words “or has been, or proposes, or has at any time proposed, to become” a member of an organisation make it easier for the informant to discharge his onus.

³⁵ Conciliation and Arbitration Act 1904 (Cth), s. 156.

³⁶ Ferguson v. George Foster & Sons Pty Ltd (1969) 14 F.L.R. 370, 375.

³⁷ Ibid.

³⁸ (1975) 8 A.L.R. 321, 325-326, per Smithers and Evatt JJ.

³⁹ See Parker v. Kemp, unreported N.S.W. decision, 10 May 1949, cited in Mills, Industrial Laws New South Wales (1968) 375.

⁴⁰ Klanjscek v. Silver (1961) 4 F.L.R. 182, 187.

⁴¹ Metal Trades Employers' Association v. Amalgamated Engineering Union (1935) 54 C.L.R. 387.

⁴² Conciliation and Arbitration Act 1904 (Cth), s. 5(4).

⁴³ Bowling's case (1975) 8 A.L.R. 197, 204, per Smithers and Evatt JJ.

⁴⁴ Cuevas v. Freeman Motors Ltd (1975) 8 A.L.R. 321.

⁴⁵ E.g., Bowling's case (1975) 8 A.L.R. 197.

⁴⁶ Atkins v. Kirkstall-Repco Pty Ltd (1957) 3 F.L.R. 439, 441.

⁴⁷ Ibid.

⁴⁸ See McNamara v. Board of Fire Commissioners of N.S.W. [1938] A.R.(N.S.W.) 17 on the equivalent New South Wales provision.

⁴⁹ Bowling's case (1975) 8 A.L.R. 197, 205.

⁵⁰ See Queensland Ambulance Union of Employees v. Queensland Ambulance Brigade Hospital, Laidley (1966) 61 Q.J.P. 27 on the equivalent Queensland provision.

⁵¹ See Connington v. Municipality of Kogarah [1913] A.R. (N.S.W.) 40 on the equivalent New South Wales provision.

⁵² (1917) 23 C.L.R. 199. See too McVey v. Fiesta Togs Pty Ltd (1964) 19 I.LB. 912.

⁵³ Pearce v. W.D. Peacock & Co. Ltd (1917) 23 C.L.R. 199, 210.

⁵⁴ Jbid.

⁵⁵ (1917) 23 C.L.R. 199.

⁵⁶ Conciliation and Arbitration Act 1904 (Cth), s. 5(1)(d).

⁵⁷ Industrial Conciliation and Arbitration Act 1961-1976 (Qld), s. l0l(l)(d).

⁵⁸ Ferguson v. George Foster & Sons Pty Ltd (1969) 14 F.L.R. 370, 377.

⁵⁹ Re Parnaby & Hanrahan 1968 A.R. (N.S.W.) 295.

⁶⁰ [1927] A.R. (N.S.W.) 127.

⁶¹ (1975) 8 A.L.R. 197.

⁶² (1975) 8 A.L.R. 197, 201.

⁶³ (1917) 23 C.LR. 199.

⁶⁴ E.g. McVey v. Fiesta Togs Pty Ltd (1964) 19 1.1.B. 912; Federated lron workers' Association v. B.H.P. Co. Ltd 1973 A.I.LR. Rep. 67.

⁶⁵ In United Furniture Trade Society v. Anthony Hordern & Sons [1904] A.R.(N.S.W.) 74, the dismissal of a union member partly because of incompetence was sustained. Under the present Commonwealth, New South Wales and Queensland provisions the dismissal would not be upheld as “mixed motives” are no longer a defence. But in Victoria, Western Australia and Tasmania, a dismissal partly for incompetence and partly for industrial activity could be sustained. A dismissal is penalised in those states if the employer discharges the employee “by reason merely” of the employee's legitimate industrial activity. Thus, if the employee's industrial activities are not the sole reason, the dismissal would be upheld. In South Australia, s. 157 of the Industrial Conciliation and Arbitration Act 1972-1975 (S.A.) would produce a similar result. But see s. 156 of the Industrial Conciliation and Arbitration Act 1972-1975 (S.A.).

⁶⁶ E.g. Atkins v. Kirkstall-Repco Pty Ltd (1957) 3 F.L.R. 439.

⁶⁷ E.g. Boilermakers' and Blacksmiths' Society v. Cudgen R.Z. Co. Ltd 1971 A.I.LR. Rep. 781.

⁶⁸ Connington v. Municipality of Kogarah [1913] A.R. (N.S.W.) 40; Grayndler v. Broun [1928] A.R. (N.S.W.) 46. See too Grayndler v. Cunich (1939) 62 C.LR. 573, 594-596 where Evatt J. criticised the decision in Grayndler v. Broun. But see now Klanjscek v. Silver (1961) 4 F.L.R. 182, 187.

⁶⁹ Klanjscek v. Silver (1961) 4 F.LR. 182.

⁷⁰ Boilermakers' and Blacksmiths' Society of Australia v. Frigrite Industries S.A. Ltd (1972) 142 C.A.R. 934.

⁷¹ Re Parnaby and Hanrahan 1968 A.R. (N.S.W.) 295.

⁷² Eaton v. McKenzie (1916) 12 Tas. L.R. 94, 95.

⁷³ Grayndler v. Colgate-Palmolive-Peet Company Limited (No. 2) [1937] A.R.(N.S.W.) 525.

⁷⁴ (1964) 19 I.I.B. 912.

⁷⁵ O'Reilly v. Blue [1927] A.R. (N.S.W.) 111, 115.

⁷⁶ King v. Hickson's Timber Impregnation Co. (Aust.) Pty Ltd (1972) 20 F.L.R. 353,354.

⁷⁷ As in the Victorian Act.

⁷⁸ As in the New South Wales, South Australian and Western Australian unlawful dismissal provisions.

⁷⁹ As in the Queensland and Tasmanian statutes.

⁸⁰ so As in the federal Act.

⁸¹ Clark, Remedies for Unjust Dismissal: Proposals for Legislation (1970) 43, n.56 quotes the following comment of an industrial relations manager of a large engineering firm on the unfair dismissal legislation which was being considered in the United Kingdom at the time:

We can all think of cases where the maximum compensation of £4000 proposed would be regarded as peanuts!

⁸² (1972) 20 F.L.R. 353. However, the court's reluctance may be partly attributed to the fact that the prosecutor did not seek the maximum penalty.

⁸³ (1972) 20 F.L.R. 353, 355.

⁸⁴ (1967) 15 F.L.R. 340.

⁸⁵ A predecessor of s. 5(5) of the Conciliation and Arbitration Act 1904 (Cth) provided that “the Attorney-General may direct that the whole or any part of any penalty recovered under this section may be paid to the person injured by the offence”. In that situation the employee would have an interest in the penalty levied.

⁸⁶ Conciliation and Arbitration Act 1904 (Cth), s. 5(5).

⁸⁷ (1969) 14 F.L.R. 370.

⁸⁸ Cf. Trade Union and Labour Relations Act 1974 (U.K.) Schedule 1, para. 19 (2).

⁸⁹ (1975) 8 A.LR. 197.

⁹⁰ (1975) 8 A.L,R. 197, 216 per Smithers and Evatt JJ.

⁹¹ (1969) 14 F.L.R. 370.

⁹² Conciliation and Arbitration Act 1904 (Cth), s. 5(5)

⁹³ The section could be upheld upon the same reasoning which led the High Court in Jumbunna Coal Mine No Liability v. Victorian Coal Miners' Association (1908) 6 C.L.R. 309 to sustain the provisions of the Commonwealth Conciliation and Arbitration Act 1904 (Cth) relating to the incorporation of associations of employers and employees: unless there was power to safeguard trade unionists in the pursuit of legitimate objectives, the arbitration system could not function effectively.

⁹⁴ Sheetmetal Working Industrial Union of Australia v. Australian National Airways Pty Ltd; Re Commonwealth Aircraft Corporation Pty Ltd (1942) 46 C.A.R. 422, 433 per O'Mara J.; Ferguson v. George Foster & Sons Pty Ltd (1969) 14 F.L.R. 370.

⁹⁵ Ibid.

⁹⁶ Ferguson v. George Foster & Sons Pty Ltd (1969) 14 F.L.R. 370.

⁹⁷ (1975) 8 A.L.R. 197.

⁹⁸ Ferguson v. George Foster & Sons Pty Ltd (1969) 14 F.L.R. 370, 381.

⁹⁹ (1969) 14 F.L.R. 370.

¹ Id. 381.

² E.g. Bowling's case (1975) 8 A.L.R. 197; Courtis v. Uniroyal Pty Ltd 1975 A.I.LR. Rep. 805.

³ Courtis v. Uniroyal Pty Ltd 1975 A.I.L.R. Rep. 805.

⁴ (1975) 8 A.L.R. 197.

⁵ (1975) 8 A.L.R. 197, 210.

⁶ (1975) 8 A.L.R. 197, 212.

⁷ (1975) 8 A.L.R. 197, 212-213.

⁸ (1975) 8 A.L.R. 197, 213.

⁹ (1975) 8 A.L.R. 197, 216.

¹⁰ See Industrial Conciliation and Arbitration Act 1961-1976 (Qld), s. 101(5). See too, Federated Clerks' Union of Australia (North Queensland Branch) Union of Employees v. Bogiatzis (1941) 35 Q.J.P. 18.

¹¹ There are several examples of the exercise of this jurisdiction. See: Sheridan v. Central District Ambulance Committee (No. 2) [1927] A.R. (N.S.W.) 460; Grayndler v. Colgate-Palmolive-Peet Co. Ltd [1937] A.R. (N.S.W.) 525; Re Parnaby and Hanrahan 1968 A.R. (N.S.W.) 295; Re Dispute-York Air Conditioning Pty Ltd; Re Retrenchments 1970 A.R. (N.S.W.) 261.

¹² Australian Builders' Labourers' Federated Union of Workers, Western Australian Branch v. Manx Brick Pty Ltd (1970) 50 W.A.I.G. 1143. See also Building Trades Association of Unions of Western Australia, Australian Builders' Labourers Federated Union, Western Australian Branch v. N.J. Hurll & Co. (Vic.) Pty Ltd (1972) 52 W.A.I.G. 892.

¹³ Industrial Arbitration Act Amendment Act 1973 (W.A.), s. 36.

¹⁴ In Building Trades Association of Unions of Western Australia, Australian Builders' Labourers Federated Union, Western Australian Branch v. N.J. Hurll & Co. (Vic.) Pty Ltd (1972) 52 W.A.I.G. 892, the Industrial Commission decided that s. 61(2)(d) specified the sole grounds on which re-instatement could be ordered. When that section was repealed it could have been argued that there was no jurisdiction in Western Australia to award re-instatement to employees unlaw fully dismissed. On the other hand, it might have been possible to argue that the legislature, by repealing s. 61(2)(d) soon after the decision in the 1972 case, intended to displace the maxim expressio unius est exclusio alterius. With the express reference to re-instatement removed from s. 61 it could be argued that re-instatement was impliedly available under the general jurisdiction to determine disputes over industrial matters.

¹⁵ (1975) 55 W.A.I.G. 543.

¹⁶ Re-instatement is not mentioned in the victimisation provisions in the Industrial Relations Act 1975 (Tas.) or the Labour and Industry Act 1958 (Vic.) and on general principles it would not seem to be available in these States. See Austral Bronze Co. Pty Ltd v. Non Ferrous (Metal Strip) Wages Board [1959] Tas. S.R. 118 and R. v. Industrial Appeals Court; Ex parte Frieze [1963] V.R. 709, 721 per Scholl J.

¹⁷ Industrial Conciliation and Arbitration Act 1972-1975 (S.A.), s.156(4).S. 157 of that Act has no similar provision.

¹⁸ This is the implication from Australian Workers' Union of Employees v. Ambrose (1938) 32 Q.J.P. 6, a decision upon a similar provision in the Industrial Conciliation and Arbitration Act 1932-1936 (Qld).

¹⁹ See Industrial Conciliation and Arbitration Act 1972-1975 (S.A.), s. 156(4).

²⁰ Industrial Conciliation and Arbitration Act 1972-1975 (S.A.), s. 157.

²¹ See Minchin and Gorman v. St Jude's Child Care Centre (1973) 28 1.1.B. 578; Ki/worth v. Zweck 1974 A.I.LR. Rep. 60.

²² Industrial Conciliation and Arbitration Act 1972-1975 (S.A.), s. 156(2).

²³ Works Committeemen in France are protected from discriminatory discharge for a period of six months after their term of office expires: Seyfarth, Shore, Fairweather and Geraldson, Labor Relations and the Law in France and the United States (1972) 222.

²⁴ Conciliation and Arbitration Act 1904 (Cth), s. 5(1).

²⁵ For a complete discussion of the role of the shop steward see Foenander, Shop Stewards and Shop Committees: A Study in Trade Unionism and Industrial Relations in Australia (1965).

²⁶ See Bowling's case (1975) 8 A.L.R. 197, 210.

²⁷ C.C.H. and Beinhauer (trans.) Betriebsverfassungsgesetz, German Works Council Act 1972 (1972), s. 103.

²⁸ Seyfarth et al., op. cit. 222-223.

²⁹ See Hepple and O'Higgins (eds) Encyclopedia of Labour Relations (1972), Vol. 1, 2931. The Code of Practice was preserved by the Trade Union and Labour Relations Act 1974 (U.K.) Schedule 1, para. 1(1). It will continue to survive until new Codes of Practice are introduced in pursuance of s. 6 and Sch. 17, para. 4 of the Employment Protection Act 1975 (U.K.).

³⁰ Trade Union and Labour Relations Act 1974 (U.K.), Sch. 1, para. 3.

³¹ Bowling's case (1975) 8 A.L.R. 197, 210 per Smithers and Evatt JJ.

³² (1975) 8 A.L.R. 197.

³³ Stevens and Chaney, “A Study of the Reinstatement Remedy under the National Labor Relations Act” (1974) 25 Labor Law Journal 31.

³⁴ Id. 33-36.

³⁵ See Clark, “Unfair Dismissal and Reinstatement” (1969) 32 Modern Law Review 532, 544.

³⁶ Levy, “The Role of Law in United States and England in Protecting the Worker from Discharge and Discrimination” (1969) 18 International and Comparative Law Quarterly 558, 568 reports that in “an ordinary discharge case about two years may elapse from the time the worker files his charge until ... the time the Court of Appeal enters a decree” enforcing the National Labour Relations Board's order.

³⁷ In the Stevens and Chaney survey, nearly 40% of the workers who refused reinstatement stated that they had obtained a better job before reinstatement was offered: Stevens and Chaney, op.cit. 34.

³⁸ (1964) 110 C.L.R. 194.

³⁹ (1964) 110 C.L.R. 194, 209.

⁴⁰ Trade Union and Labour Relations Act 1974 (U.K.) Sch. 1, para. 19(1).

⁴¹ Trade Union and Labour Relations Act 1974 (U.K.) Sch. 1, para. 19(2).

⁴² Ibid.

⁴³ Trade Union and Labour Relations Act 1974 (U.K.) Sch. 1, para. 19(3).

⁴⁴ Jackson, Unfair Dismissal: How and Why the Law Works (1975) Ch. 3.

⁴⁵ Id. 27.

⁴⁶ See Employment Protection Act 1975 (U.K.), ss. 53, 54 and 56.