Alfred v CFMEU - [2009] FMCA 613

FEDERAL MAGISTRATES COURT OF AUSTRALIA

ALFRED v CFMEU & ORS

[2009] FMCA 613

INDUSTRIAL LAW – Contravention of freedom of association protections – union organiser made threats to concreting subcontractor at significant building project – assessment of disputed evidence of witnesses – intent to coerce subcontractor and his workers to become members of union – conduct to which Part 16 applies – contravention by organiser and unions established – further hearing directed.

Building and Construction Industry Improvement Act 2005 (Cth), ss.57, 73
Evidence Act 1995 (Cth), s.140(2)(c)
Workplace Relations Act 1996 (Cth), ss.4(1), 778(a), 779, 779(1), 779(2), 779(2)(b), 782, 783, 783(b), 783(c), 784(1), 785, 785(1)(e)(ii), 785(1)(f)(ii), 789, 807, 807(1), 807(4)(a), 809, Pt.16, Pt.16 Div.2

A & L Silvestri Pty Ltd v Construction, Forestry, Mining & Energy Union (2007) 165 IR 94
Briginshaw v Briginshaw (1938) 60 CLR 336
Fox v Percy (2003) 214 CLR 118
Pileggi v Australian Sports Drug Agency (2004) 138 FCR 107
Re Peat Resources of Australia Pty Ltd; Ex parte Pollock [2004] WASCA 122
Re The Licensing Ordinance (1968) 13 FLR 143
Seven Network (Operations) Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing & Allied Services Union of Australia (2001) 109 FCR 378
Victims Compensation Fund Corporation v Brown (2003) 201 ALR 260
Williams v Construction, Forestry, Mining & Energy Union [2009] FCA 223, (2009) 179 IR 441

Pearce, D.C. and Geddes, R.S. (2006), Statutory Interpretation in Australia, 6^th edition, LexisNexis Butterworths, Australia

Applicant:

GREGORY CHARLES ALFRED

First Respondent:

CONSTRUCTION, FORESTRY, MINING & ENERGY UNION

Second Respondent:

CONSTRUCTION, FORESTRY, MINING & ENERGY UNION (NEW SOUTH WALES BRANCH)

Third Respondent:

SAMMY MANNA

File Number:

SYG 870 of 2008

Judgment of:

Smith FM

Hearing dates:

13 October 2008, 3 March 2009, 3, 4 and 5 June 2009

Date of Last Submission:

12 June 2009

Delivered at:

Sydney

Delivered on:

10 July 2009

REPRESENTATION

Senior Counsel for the Applicant:

Mr J J E Fernon SC

Counsel for the Applicant:

Ms E Raper

Solicitors for the Applicant:

Freehills

Counsel for the Respondents:

Mr J Pearce

Solicitors for the Respondents:

Taylor & Scott

ORDER

Directions be given for the further hearing of the matter.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 870 of 2008

GREGORY CHARLES ALFRED

Applicant

And

CONSTRUCTION, FORESTRY, MINING & ENERGY UNION

First Respondent

CONSTRUCTION, FORESTRY, MINING & ENERGY UNION (NEW SOUTH WALES BRANCH)

Second Respondent

SAMMY MANNA

Third Respondent

REASONS FOR JUDGMENT

Mr Alfred’s application for penalties and other relief under s.807 of the Workplace Relations Act 1996 (Cth) (“the Act”) alleges that a contravention of s.789 occurred on 11 April 2006, in the course of a telephone conversation between Mr Manna, a Construction, Forestry, Mining and Energy Union (“CFMEU”) official, and Mr Holm, a concreting subcontractor on a shopping centre project. It is alleged that Mr Manna threatened to organise or take action against Mr Holm with intent to coerce him and his subcontracted workers to become members of the CFMEU. Specifically, he is alleged to have threatened Mr Holm that

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2009] FMCA 613
Decision Date: 10 July 2009

CaseChat Overview and Summary

The case of Alfred v CFMEU [2009] FMCA 613 involves an application by Gregory Charles Alfred, an Inspector under the Building and Construction Industry Improvement Act 2005, for penalties and other relief under s.807 of the Workplace Relations Act 1996. The application alleges that Sammy Manna, a CFMEU official, threatened to organise or take action against a concreting subcontractor, Anything Concrete, with intent to coerce the subcontractor and his workers to become members of the union. The respondents, the CFMEU and its New South Wales Branch, and Mr Manna, contest the allegations. The Federal Magistrates Court was required to decide whether Mr Manna's conduct contravened s.789 of the Workplace Relations Act and whether it was subject to the provisions of Division 2 of Part 16.

The court found that Mr Manna's conduct did indeed contravene s.789 of the Workplace Relations Act. The court was satisfied by Mr Holm's account of the events and found it to be probable that Mr Manna made threats to Anything Concrete with the intent to coerce them into joining the union. The court found Mr Manna's evidence to be entirely unreliable, and Mr Holm's evidence to be consistent with the surrounding circumstances. The court also found that the threats made by Mr Manna were capable of compelling the recipient, and were intended to coerce the subcontractor and his workers to join the union.

In relation to the application of Division 2 of Part 16, the court found that Mr Manna's conduct was "conduct by an officer of an organisation acting in that capacity" within the meaning of s.783. The court rejected the respondents' argument that all three paragraphs of s.783 must be satisfied before the section applies. The court found that the paragraphs of s.783 should be read as alternative and self-contained application provisions, with the intention that it is necessary only to identify "conduct" falling within any one of the paragraphs before the provisions of Part 16 can be applied in relation to that conduct.

The court held that each of the respondents was liable to the imposition of a penalty or other order under s.807 in relation to a contravention of s.789. The court directed a further hearing to be held to consider the relief to be given under s.807.

In conclusion, the Federal Magistrates Court found that Mr Manna's conduct contravened s.789 of the Workplace Relations Act, and that the provisions of Division 2 of Part 16 applied to the respondents' conduct. The court directed a further hearing to be held to consider the relief to be given under s.807.

Orders