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

1. 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

1. 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 “if you proceed with the job and do not join the union, pay your men the benefits, we’ll send you bankrupt” and “have you audited” and “screw you and make your life a misery”. For the reasons which follow, I am satisfied that Mr Manna said these words, that his conduct contravened s.789, and that he and the two relevant CFMEU organisations are each liable under s.807 for contravention of a civil remedy provision.

2. Mr Alfred brings the application in his capacity as an Inspector appointed under s.57 of the Building and Construction Industry Improvement Act 2005 (Cth) (“the BCII Act”), and as an “eligible person” within s.807(1) and (4)(a) of the Act read with s.73 of the BCII Act. I am satisfied by unchallenged evidence that he has this status. The application was commenced on 10 April 2008, and was unfortunately protracted by the vacating of two hearings as a result of the illness of witnesses. At the request of the parties, the hearing was confined to issues of contravention, and it will be necessary to hold a further hearing before I can make final orders addressing the relief to be given under s.807.

3. The first respondent is the CFMEU industrial association registered under the Act, and the second respondent is the sister organisation registered under NSW legislation. Both of them concede that they are “industrial associations” as defined in s.779(1) for the purposes of the Part 16 provisions of the Act concerning freedom of association, and that Mr Manna was at material times an employee, member and officer of both organisations. Mr Manna’s pleading did not make these admissions. Evidence was tendered by Mr Alfred to establish Mr Manna’s status, and that at material times his relevant conduct was performed in dual capacities as an officer of both organisations. At the commencement of his case, Mr Manna gave evidence which admitted his membership of both organisations and conceded that “at all relevant times in relation to these proceedings I was an organiser performing duties for the First and Second Respondents”. 

4. The evidence established generally that no distinction was drawn in the minds and statements of the relevant witnesses as to membership of both organisations, and they spoke indiscriminately of workers being or becoming members of “the union” known as the CFMEU.  I took this to mean that workers normally joined or were expected to join both unions and to hold dual membership, and this did not appear to be a matter of controversy between the parties.  In view of this evidence, and the concessions of the respondents, I do not consider it necessary further in this judgment to distinguish between the two organisations, and shall refer to both collectively as the CFMEU and “the union”. 

5. Nor ultimately did I understand it to be a matter of evidentiary controversy that, if I found Mr Manna liable for a contravention of s.789 by reason of his own conduct, both of the CFMEU organisations would incur liability under the terms of s.779(2) of the Act. It relevantly provides: “for the purposes of this Part, the following conduct is taken to be conduct of an industrial association:  …  (b) conduct of an officer or agent of the industrial association acting in that capacity”.  The evidence clearly points to all of Mr Manna’s conduct in relation to Mr Holm and his business as being performed in his official capacity. 

6. The respondents made a contention in their final submissions that, even if Mr Manna’s conduct fell within the language of ss.789 and 779(2), no contravention of Part 16 could be found, because the conduct was not shown also to come within one of the “application” provisions in Division 2. I shall explain why I do not accept this argument at the end of my judgment.

The background to Mr Manna’s conduct 

1. The uncontentious evidence as to the background to the building project and Mr Manna’s conversation with Mr Holm can be sketched briefly.  It concerns a shopping centre known as “The Portico Plaza”, with a Woolworths store and speciality shops, under construction during 2006 at Toongabbie, NSW.  The head contractor was North East Developments Pty Ltd (“North East”), and its director, Mr Symond, was responsible for the day‑to‑day management at the site.  On 21 February 2006, North East contracted with Conform Australia Pty Ltd (“Conform”) for it to supply formwork and to place and finish concrete at the site.  Mr Younan was the sole director and secretary of Conform, and managed its business.  On or about 24 March 2006, Conform contracted with a partnership of Mr and Mrs Spicer and Mr Holm, trading as Anything Concrete, for it to carry out concrete placing and finishing work in performance of parts of Conform’s contract with North East.  Mr Holm has the occupation of a concreter, and he conducted the partnership’s negotiations, had day‑to‑day management of their business, and was personally employed in its concreting work. 

2. By April 2006, the project had progressed to the stage where the concreting works were about to commence.  A meeting was called in Mr Symond’s office on the site on 11 April 2006, which included a meeting with two officials of the CFMEU: Mr Tulloch, who was generally concerned with the site, and Mr Manna, who had particular interest in workers in the concreting industry.  The site meeting had been arranged in advance for 11 am, and appears as the only appointment in Mr Manna’s diary for that day.  Mr Younan was on the site, and was asked by Mr Symond to join the meeting, which then lasted for another 40 minutes before the union officials left the meeting.  Mr Younan remained in Mr Symond’s office or on the site after the departure of the union officials and until about 6.30 pm.  He was present during a series of conferences and telephone calls during the afternoon of 11 April 2006 conducted by Mr Symond, including telephone calls involving Mr Holm and Mr Manna.  He listened to some of these on “speaker phone”, and made other calls on his own phone. 

3. Mr Younan’s evidence confirms that Mr Manna was concerned at the meeting to discover and influence the choice of a subcontractor for the concrete placement and finishing on the site.  Mr Manna expressed strong disapproval of the choice of Anything Concrete.  He recommended a list of other firms, which was written down by Mr Younan on a note he made during the meeting, with some details added by other persons who were present.  He expressed a desire to talk to Mr Holm after the meeting, and said: “they won’t be doing the job”. 

4. It is common ground that at about 3 pm Mr Manna and Mr Holm did speak together on the telephone.  It is also common ground that, after the meeting with the union officials, Mr Symond endeavoured to address the union’s disapproval of Anything Concrete, by inducing Mr Holm first to speak to Mr Manna and, later, to abandon his contract with Mr Younan.  In the late afternoon, Mr Symond drafted and faxed to Mr Holm a document designed to effect this.  Mr Holm decided to sign this document.  He procured the signatures of his partners, and returned it by fax to Mr Symond later that evening.  Mr Symond then forwarded it to Mr Younan for his acceptance.  These events gave rise to further telephone conversations between Mr Younan and Mr Holm during the evening of 11 April 2006, and on the following morning on a building site at The Entrance.  In the course of that meeting, Mr Younan persuaded Mr Holm not to abandon their contract, and he made a note of Mr Holm’s account of his telephone conversation with Mr Manna. 

5. The subsequent involvement of Anything Concrete in the Toongabbie project was only cursorily touched upon in evidence.  Mr Holm and his subcontractors commenced work on the site on 1 May 2006, and were involved in two of the 35 concrete “pours” required under the contract.  However, Mr Symond expressed dissatisfaction with the quality of some of their work on 3 May 2006, and at his instigation Conform terminated the contract of Anything Concrete on 10 May 2006.  The evidence does not allow me to make findings about the circumstances in which this happened. 

6. As I shall explain, Mr Manna’s recollections about events on 11 April 2006 are minimal, except in relation to his telephone conversation with Mr Holm after the site meeting with the union officials.  He claimed to have a clear recollection of that conversation, as did Mr Holm.  Their recollections are starkly different, in particular whether any threatening words were said by Mr Manna, and whether Mr Holm expressed a desire for him and his workers to join the union.  It is convenient for me to describe and make some findings about the evidence of these two key witnesses, before detailing and making findings about the background evidence of Mr Younan.  The submissions of both parties attempted to draw strength from Mr Younan’s evidence for, or against, the acceptance of Mr Holm’s account of the critical conversation.  I shall address these submissions, and explain my reasons for being comfortably satisfied that Mr Holm’s account of the conversation was probably true. 

Mr Holm’s evidence 

1. Mr Holm’s affidavit recounted the making of his contract with Mr Younan, which accepted his quote for $251,903.  He said that he had worked in the building and construction industry for approximately 30 years.  In oral evidence, he said that the contract with Conform required 35 pours, of which most required between 12 and 13 men, and “there would have been a couple of pours where I needed 18 to 20 men”.  He described the importance of the contract in his affidavit: 

   11.The job at Toongabbie was a very important project for Anything Concrete.  This was because it was a big job and Anything Concrete hadn’t done a job of that scale before then.  I recall that I wanted to get this work because at the time things were quietening down in the construction industry and it would have been good to keep my employees busy.  Anything Concrete had put a lot of work into getting the contract with Conform, including getting business references, making phone calls, meetings with Mr Younan, obtaining curing agents and chasing up concreting chemicals overseas.  In order to quote for the job, I researched the Australian Standards for curing agents, sourced those curing agents overseas and built the cost of these into my quote.  I spent many days on the internet doing this research and made many phone calls (including overseas).  Annexed and marked with the letter ‘C’ (pages 13‑22) are copies of part of the documentation I put together in support of Anything Concrete’s quote for the Toongabbie job. 

2. In cross‑examination, Mr Holm agreed that the third sentence of this paragraph inaccurately referred to his labour force as “employees”, since all his workers were under contract.  It was later submitted that this evidenced a serious flaw in his credibility, however, in my opinion the inaccuracy was understandable and insignificant.  Mr Holm admitted to no other inaccuracy or flaw in his affidavit evidence, and none was established during the remainder of his cross‑examination. 

3. Mr Holm recounted receiving a telephone call from Mr Symond “some time before 2.55pm” on 11 April 2006.  He said: 

   16.Some time before 2.55pm on 11 April 2006 I received a telephone call on my mobile phone from Mr Symond who I knew to be a director of North East, the head contractor at the Site.  Mr Symond said words as follows: 

   Symond:‘John, I’m here with Joe Younan, [name of the North East architect who Mr Symond named at the time, but whose name I cannot now recall] and [name that I cannot now recall] from the union.  You’re on speaker phone.  Do you recall our conversation about giving the union some members?’ 

   … 

   19.I cannot now recall the whole of the conversation that I had with Mr Symond and the others, but during the conversation Mr Symond also said to me: 

   Symond:‘I’d like for you to call [name of person] from the union’. 

4. Mr Holm’s affidavit did not recount his previous conversation with Mr Symond “about giving the union some members”.  It is clear that Mr Symond had a concern to placate the union officials throughout the events of 11 April 2006.  This evidence of Mr Holm tends to suggests that Mr Symond wished to address union demands that the workers on the site should include union members.  Other evidence supporting such an inference includes Mr Younan’s recollection of Mr Symond’s statements, which I shall set out below, and Mr Symond’s conduct during the afternoon of 11 April 2006.  However, the inference is weak, since neither party called Mr Symond as a witness, and neither Mr Holm nor Mr Younan were cross‑examined to elicit background to Mr Symond’s statements showing his concern to placate the union officials.  Ultimately, I consider that it is unnecessary for me to draw any conclusions as to Mr Symond’s motivations during the relevant events. 

5. Mr Holm said: 

   20.Mr Symond then gave me the man’s name and number but I was driving in my car at the time and I wasn’t able to write it down.  I also thought the man from the union would ring me when he wanted to speak to me. 

6. According to Mr Holm, while he was driving to pick up his children from school, at about 2.55 pm he received a call on his mobile telephone which he was unable to answer immediately.  At 3 pm, he pressed the automatic redial button, and then held a conversation with a person whom I find to be Mr Manna.  He presented documentary corroboration that the number which he called was Mr Manna’s mobile telephone number, and that the call occurred at 15:02:11 pm, and lasted 16 minutes.  There is no corroboration whether this was initiated by a “redial” from an unanswered call, or by Mr Holm entering the number on the keypad. 

7. Mr Holm’s affidavit included the following memories of the conversation: 

   23.At approximately 3.00pm, I pressed the button which automatically redialled the missed call.  A man answered the phone and we had a conversation as follows: 

   Holm:‘John from Anything Concrete, I just received a missed call.’ 

   Person:‘I’m [name of person indistinguishable] from the CFMEU.  I want to talk to you about the Toongabbie site.  Are your workers employees and are they in the union?’ 

   Holm:‘Simon Symond said we only need to give a couple of members to the union.  All my workers are subcontractors anyway, not employees.’ 

   Person:‘It’s illegal to do that.  They need to be employees with all the benefits.  You need to be paying them super, wet days, holidays, sick pay and site allowance.’ 

   Holm:‘For the amount quoted for the Toongabbie project, the low price that they got me down to did not allow for any of that.  Workers comp has just been through my books.  Everything is fine and they actually owe me money.  We’re being guided by our accountant and the Department of Fair Trading.’ 

   Person:‘If you proceed with the job and do not join the union, pay your men the benefits, we’ll send you bankrupt.’ 

   Holm:‘You can’t do that.  Everything is legal in the way we operate.’ 

   24.I also recall at some point in the conversation the man raising with me the issue of travel allowance.  We had a conversation as follows: 

   Person:‘You will have to pay the members travel allowance.’ 

   Holm:‘It’s faster to go from The Entrance to Toongabbie than to get across Sydney.’ 

   Person:‘I will get a bigger company in there to do the job, like Concrete Constructions.’ 

   Holm:‘That’s unfair.  First the builder screws us and now you.’ 

   25.I cannot now recall the exact sequence of the remainder of the conversation that I had with the man from the union.  However, I recall that during the conversation and around the time that man said the words ‘I’ll send you bankrupt’, he also said ‘We’ll have you audited ...’ and ‘We will screw you and make your life a misery’.  I understood at the time that being ‘audited’ meant being audited by the tax department.  When the man from the union said ‘We’ll have you audited …’, I responded as follows: 

   ‘We’ve just been audited by WorkCover and everything’s fine.  In fact, they owed us money.  We’re running the business according to their guidelines.’ 

   26.The conversation was a relatively long conversation for a mobile phone call, lasting around 15 to 17 minutes. 

   27.The conversation with the man from the union became very heated.  What sticks firmly in my mind about the conversation was the man’s threat to bankrupt me if I commenced working at the Site and did not join the union.  This stuck firmly in my mind because I was concerned about the threat to bankrupt Anything Concrete.  I understood that my partners in Anything Concrete had used their house to get a loan to back the business.  If the business failed and they were unable to pay the loan, they might have lost their house. 

   28.After the conversation had continued for some time, I said to the man words as follows: 

   Holm:‘By the way, this phone call is being recorded.’ 

   29.The person immediately hung up on me after I said ‘this phone call is being recorded’.  I was not recording the phone call.  I said this because I felt I was being threatened. 

1. During Mr Holm’s cross‑examination, counsel put to Mr Holm the version of the conversation which was later tendered in an affidavit by Mr Manna.  On this version, the conversation was friendly, and concerned Mr Holm’s request for Mr Manna’s assistance to “join 12 men in the union”.  Mr Manna’s version denied a threat being made in any terms, with any conditions, and with any purposes.  Mr Manna’s version also contradicted the whole gist of Mr Holm’s position, by claiming that Mr Holm was keen to enrol his workers in the union, and was far from being unwilling to join the union and to pay the benefits which he referred to as the “union extras”.  In cross‑examination, it was put to Mr Holm that the entirety of his recollection of threatening words being said by Mr Manna was untrue, as was his refusal to promote the union membership for his workers. 

2. Mr Holm consistently rejected all of those parts of Mr Manna’s version which were inconsistent with his account, and pointed to some factual matters about his business which were inconsistent with that version.  There is no corroboration of these matters in the evidence, but his rebuttal points were cogent and were not disproved.  In particular, I accept Mr Holm’s evidence that the contract would not have been financially viable if his workers were engaged as employees under the terms which he understood would attach to union membership. 

3. It was not put to Mr Holm in cross‑examination that Mr Manna might have threatened to send him bankrupt if he proceeded with the job without paying “the benefits”, but without saying also “and do not join the union”.  The cross‑examination did not squarely lay a foundation for the respondents’ final, alternative, submissions that Mr Manna might have threatened Mr Holm, but only upon the condition that he did not pay union benefits to his workers, and not on the condition that he or his workers must “join the union”. 

4. Mr Holm’s evidence is that, after his conversation with Mr Manna, he spoke by telephone with Mr Younan, and told him that “I received a call from the union.  They’ve threatened to bankrupt and audit me.  They don’t want us to do the job”.  Mr Younan told him: 

   Younan:‘Your contract will probably be dissolved.  But don’t worry about it, I’ve found a way around it.  You will still be doing the job for the same money.  I’ll pay your workers direct into their bank account.  I’ll pay their super and I’ll pay you the balance as wages direct.  I’ll just give the union a couple of members to keep them happy.  Just do what Simon [Symond] wants.  Simon will ring you.’ 

5. Mr Holm maintained in cross‑examination that in one of the conversations he had with Mr Younan after he spoke to Mr Manna, he told Mr Younan “that Mr Manna had demanded that [he] join the union”.  He maintained that Mr Symond “already knew it” at the time of his conversations with Mr Symond about terminating the contract (see transcript 04.06.09 p.16‑17). 

6. He later received a call from Mr Symond, which he described: 

   36.Later that afternoon, I received a telephone call from Mr Symond.  Mr Younan was with Mr Symond and Mr Symond put me on speaker phone.  We had a conversation as follows: 

   Symond:‘Following your conversations with the union, it is best for everyone involved for us to dissolve your contract.  I don’t want to get the project off to a bad start.  I want the project to run smoothly.  I will draft a letter and fax it to you.  You re‑type it and put it on your letterhead and make it official.  Have your partners sign it and fax it back to me as soon as possible.’ 

   Holm:‘I will have to bring the letter to my partner’s place for his wife to type it up and have it signed by them.  Then I’ll fax it back to you.’ 

   Symond:‘Do it ASAP.’ 

7. Mr Holm received Mr Symond’s draft letter at 5.40 pm, and there is a printed “receptions activity report” which confirms this time.  He then took it to his partners’ residence, where it was copied onto Anything Concrete’s letterhead, signed by all the partners, and faxed to Mr Symond later that evening.  The letter was addressed to Mr Younan and contained the partners’ request for his “agreement to cancel” their contract with Conform, and a statement that “if you agree by signing below, both parties will then unconditionally release each other of any obligations and liabilities agreed to under the above Minor Works Contract”.  Both the draft letter prepared by Mr Symond, and the copy signed by the Anything Concrete partners are in evidence. 

8. Later the same night, Mr Holm was phoned by Mr Younan, who requested that Mr Holm meet him on a site at The Entrance the next day.  They met, and Mr Holm recounted to Mr Younan his conversation with Mr Manna, during which Mr Younan wrote a memorandum which was then signed by him and Mr Younan and a disinterested witness.  According to Mr Holm’s affidavit, his statements to Mr Younan included the following: 

   Holm:‘I had a call from the union and they told me they wanted all my boys to be members and that I can’t do the job for that price and they will send me bankrupt.  All my men have workplace agreements and there’s no allowance for union dues in the quote I gave you.’ 

9. According to Mr Younan’s memorandum: 

   12.04.06. 

   Meeting J. Younan & John Holm. 

   1.John rang Sammy Manna on 11.04.06 at about 2.00 pm which was 5‑10 mins after S. Symond rang John and asked John to ring Sammy (C.F.M.E.U) straight away. 

   2.Sammy spoke to S. Symond and said John did not ring straight away but about 1½ hours later. 

   3.During conversation between John Holm and Sammy (C.F.M.E.U) which lasted about 20 mins (can be verified by phone records). 

   4.Sammy said to John 

   a)Anything Concrete structure was not legal. 

   b)John said to Sammy he as (Anything Concrete) was legal as Workers comp did an Audit early 2005 and it was found that Anything Concrete was entitled for a refund. 

   c)John told Sammy that he was happy to pay for the C.F.M.E.U (Union) to do an audit. 

   d)Sammy said don’t waste your money there is no way you will be on the site unless all employees receive C.B.U.S  ACIRT. 

   e)He said it would cost a lot more to get the concreting done than what you quoted. 

   f)Sammy also told John that he couldn’t pay the travelling time from Central Coast to Sydney. 

   g)John said it takes less time for us to get to Toongabbie from the Central Coast than it does to get across Sydney. 

   5.Sammy Manna from C.F.M.E.U kept insisting Anything Concrete would not be on the job otherwise Anything Concrete would go bankrupt. 

   6.According to John he was making implications that if Anything Concrete was on site (12 Cornelia St Toongabbie) he (Sammy Manna) would make life difficult. 

10. In the respondents’ final submissions, it was argued that there was absent from Mr Younan’s memorandum any note of Mr Holm saying anything to the effect that “they wanted all my boys to be members”.  It was submitted that I should therefore disbelieve Mr Holm’s account of saying this to Mr Younan on 12 April 2006 or earlier, and also that this demand was in fact made by Mr Manna to Mr Holm.  This had been put to Mr Holm in cross‑examination, and he maintained “it’s not written here, but it was said.  …  No, that was said.  That’s why they didn’t want us to do the job.  …  I wasn’t writing it and that’s what the whole conversation was about was us joining the union.  …  that’s what it was all about.  That’s why we were doing the letter”.  I shall discuss this point again, when considering Mr Younan’s evidence.  However, I note my conclusion that the absence of express reference to this in Mr Younan’s memorandum is understandable, and the point does not cause me to disbelieve Mr Holm’s evidence in any material respect. 

11. Generally, Mr Holm’s presentation as a witness was convincing as to the honesty of his testimony and the reliability of his memory.  He gave careful consideration to his answers, and did not appear to be maintaining a learned script.  The uncertain areas of his evidence were understandable, and he did not claim or insist upon an unbelievable exactness of memory.  His responses appeared appropriate, containing appropriate concessions, appropriate reflection on memory, and actual recall of incidental facts. 

12. The cross‑examination of Mr Holm explored whether his evidence might be unreliable, by reason of inducements or expectations of benefits from his participation in the proceedings.  Mr Holm conceded that when giving a statement to Mr Alfred: “I asked the question whether I would be compensated for all the trips down to Sydney or not”, and that “I was asked a question about the money still owed from the work that was done on that project, which I haven’t been paid for”.  In response to the question: “did Mr Alfred say to you that the ABCC might be able to help you to get that money paid?”, Mr Holm said: “he said he’d wait and see what happens after the court proceedings.  …  Mr Alfred said, ‘Don’t pin your hopes on it.  Like, he needed just to – this for the court proceedings”.  Mr Holm firmly denied that this was his “real interest in these proceedings”, and I believed his response was honestly given and was true.  There was no other evidence that, in fact, any inducement might have been offered to Mr Holm to give false evidence, nor that he stands to get any benefit from being a witness in this case.  There was no evidence about the background of complaint leading to Mr Alfred’s investigation and prosecution to suggest that it was initiated by Mr Holm, nor that his involvement was motivated by a pecuniary or other interest in its outcome.  

13. I have considered all the respondents’ submissions that Mr Holm’s adverse evidence of the statements made by to him Mr Manna was unreliable or may have been influenced or distorted by a personal interest in the proceedings, but do not accept these submissions.  When doing so, I have given significance to my very favourable impression of Mr Holm’s demeanour when giving evidence.  I have also kept in mind the warning in Fox v Percy (2003) 214 CLR 118 at [30]‑[31] to consider his evidence in the light of “contemporary materials, objectively established facts and the apparent logic of events”. 

Mr Manna’s evidence 

1. Mr Manna’s evidence was presented in an affidavit sworn on the first day of the hearing, which was filed and served after the applicant had called his witnesses and closed his case.  The affidavit contained no evidence about events on 11 April 2006 at the Toongabbie site, and gave the following account of one telephone conversation with Mr Holm: 

   4.In relation to the Holm Affidavit I say that on the mid‑afternoon of 11 April 2006 I was in my motor vehicle driving on the M4 motorway heading towards the CFMEU’s offices in Lidcombe.  At approximately 3.00pm a male person rang me while I was still on the M4 in my car.  I did not recognise the voice and when he said his name to me I had not heard that name before.  Our conversation was to the effect: 

   Male Voice:“I’m [name of person].  I’m doing the job in Toongabbie.  Symond asked me to give you a ring.  I want to join 12 men in the union.” 

   Manna:“You can’t join the men over the phone.  When you start the job I will go onto the job and talk to the men.  They have to fill in an application form before they can join.  How many employees have you got?” 

   Male Voice:“None.” 

   Manna:“How are you going to do the job?” 

   Male Voice:“I have all individual contracts because I can’t afford people on wages.” 

   Manna:“Look, even if you have individual subcontractors you must make sure you pay workers compensation on behalf of them and superannuation.” 

   Male Voice:“No I have an agreement with my men, everybody pays their own.” 

   Manna:“What do you mean when you say you have an agreement?  Have you got an AWA?” 

   Male Voice:“What’s an AWA?” 

   Manna:“Individual registered agreement.” 

   Male Voice:“There is nothing in writing.  I have a verbal agreement with the men.” 

   Manna:“Unless they are all proprietary listed companies, my understanding of the law is that you’ve got to pay workers compensation and superannuation.” 

   Male Voice:“I don’t really want to do the job, but I did a job for Conform before and they didn’t ask me to price the job but they dictated the price.”  [The person then told me an amount per square metre that the work had been priced at but I cannot now recall the figure he said to me in this conversation.]  “For that money I cannot afford to pay award wages and conditions so I’m not going to take the job.  I’m going to tell them to stick it up their arse.” 

   Manna:“If you come from the Central Coast it’s going to be an extra cost as well.” 

   Male Voice:“I did a job for them before and they were happy.” 

   Manna:“If you come from the Central Coast it’s going to be an extra cost as well.  When you come on to start the job, give me a ring and I’ll help you if I can.” 

   Male Voice:“No, I’m not going to do the job but thanks for your help.” 

   5.I would describe the conversation I had with the person described in the preceding paragraph as friendly and the speaker had a gentle voice on the phone.  At no time did I raise my voice or adopt an angry tone and neither did he. 

2. Mr Manna denied in his affidavit that there had been a preceding unanswered call by him to Mr Holm, and maintained this under cross‑examination.  Records of his telephone account were not produced to the Court.  The existence of such records was explored in cross‑examination, but I am not persuaded that any records were reasonably available to Mr Manna, or to Mr Holm, which would have resolved this disputed detail.  This dispute, like the critical words themselves, can only be resolved upon an assessment of the general credibility of the evidence of the two witnesses. 

3. In oral evidence, Mr Manna said that he had been a member of the union for approximately 45 years, and an organiser for the union for approximately 29 years.  One of his “first” functions was to represent concrete workers.  He believed that workers on building sites should be members of the union, and part of his job was to enrol as many of the non‑members into the union as possible.  There is evidence that some of the concreting firms whom he recommended at the 11 April 2006 meeting had enterprise agreements or collective bargaining agreements with the union, which recognised the representative role of the union and included provisions for various extra benefits for employees, including in relation to superannuation, redundancy, and meal and fares allowances.  Earlier agreements, but not the current agreements, recorded these employers’ agreement to encourage all current and future employees to join and remain members of the union.  There is no evidence about the position on these matters of the other firms which he recommended, but it seems most unlikely that Mr Manna would have recommended concreters who took a different approach to their labour force. 

4. When counsel for the applicant commenced to put Mr Holm’s version of the critical phone conversation to Mr Manna in cross‑examination, he volunteered a long answer which recited the full conversation set out in his affidavit, and claimed a perfect memory of “what he exactly say” (see transcript 04.06.09 p.57).  Mr Manna said that he had first provided instructions for the preparation of his affidavit “a couple of weeks ago”, and had not relied upon any document or other material to assist his recollection (see transcript 04.06.09 p.59).  He agreed that he had been memorising his affidavit while waiting to give evidence (see transcript 04.06.09 p.63). His evidence in relation to these matters tended to suggest that he had presented a memorised version of a conversation which was constructed after a close study of Mr Holm’s affidavit, rather than from an actual memory.  This conclusion was also pointed to by selectivity and inconsistency in his evidence about the other events on 11 April 2006. 

5. Mr Manna conceded his involvement with the Toongabbie site as part of his responsibilities to “look after concreter and I was assisting the other organiser who request me to go with him” (see transcript 04.06.09 p.26).  He conceded that he attended the site on a day in April with Mr Tulloch for the purposes of a meeting with Mr Symond (see transcript 04.06.09 p.29).  He agreed that the meeting occurred at the stage where concreting work was about to be undertaken, and that it was his interest at that time to ensure as far as possible that as many of the concreting workers would be members of the union (see transcript 04.06.09 p.30).  However, he persisted in denying knowledge of whether the meeting was on 11 April 2006, saying “I could have, but I don’t remember”.  He disclaimed that his diary entry gave assistance to his memory, saying “I don’t know if the meeting took place” (see transcript 04.06.09 p.28).  He disclaimed any memories of who was present, and what was said, at the meeting he attended in April 2006 (see transcript 04.06.09 p.29‑30), although later he gave definite responses on some matters, denying that some things had been said.  His counsel subsequently effectively conceded that Mr Manna was, in fact, present at the meeting on 11 April 2006 and that it had proceeded in the manner described by Mr Younan, by announcing that Mr Younan’s account of what was said at the meeting was not challenged (see transcript 04.06.09 p.33). 

6. However, Mr Manna claimed no memory, or denied positively, Mr Younan’s account of Mr Symond telephoning Mr Holm on speaker phone, and denied that he (Mr Manna) asked Mr Holm to ring him back after the meeting.  He also gave absolute evidence that “I never rang him” after the meeting, claiming to rely upon his memory in relation to this.  He denied saying at the meeting “they won’t be doing the job”, and said: “I wouldn’t say that because not up to me to say who’s doing the job” (see transcript 04.06.09 p.53‑55).  I found this response to be unpersuasive.  I was left with the impression from all his evidence that Mr Manna found it convenient to deny memory of the events on 11 April 2006, except in relation to some key allegations against him.  I found all his evidence so unpersuasively presented, that I was unable to conclude whether, in fact, he had any actual memories of the events on 11 April 2006. 

7. In the context of his admitted poor knowledge of a site meeting of apparent importance to a union organiser with an interest in concreters, I find it to be unbelievable, that he could have had the recall of a relatively unmemorable telephone conversation on the same day, such as that which he narrated in his affidavit, with firm recollection of time, date and words spoken.  Moreover, Mr Manna could not provide an acceptable explanation for the selectivity of his memories. 

8. He gave the explanation for his poor memory of the site meeting: “when I go to assist another organiser normally the other organiser do all the talking because concreter was not even on the job.  So if I’m with another organiser on their area, they’re in charge of that job.  They talk and discuss and I’m not pay that much attention” (see transcript 04.06.09 p.68).  However, I do not accept this explanation, nor that it was truthfully given.  It appears to me that, from the perspective of a union organiser concerned about union membership of the concreters on a site, a meeting which examined the contractual arrangements which could determine the choice of the workers for all the concreting on the site would have been of particular importance to that organiser.  Moreover, on Mr Younan’s account – which is not disputed by the respondents – a desire to know and influence the choice of the concreting contractor was, in fact, something which was of central importance at the meeting, and attracted far more than a passive interest by Mr Manna. 

1. Equally unpersuasive was Mr Manna’s explanation for having such an exact memory of his phone conversation with Mr Holm, because “two years ago when I received the charge it’s click on my head the conversation and I have since then” (see transcript 04.06.09 p.63).  However, he has had access at least since August 2008 to the affidavits and statements of Mr Holm and Mr Younan, and I find it unbelievable that these revived only an exact memory of the phone conversation and not of other more significant events on the same day. 

2. The above concerns about Mr Manna’s evidence were compounded by the unsatisfactory manner in which much of his evidence was given.  Generally, he gave hesitant responses which sometimes avoided points which were put to him, or appeared to be calculated, rather than efforts to draw on actual memories.  I did not find his demeanour throughout his evidence to be convincing as to the truth of his testimony. 

3. As I shall explain, Mr Manna’s evidence is clearly inconsistent with the contemporaneous records kept by Mr Younan.  It is also clearly inconsistent with the recorded actions of Mr Holm on the evening of 11 April 2006, when agreeing with his partners to abandon their contract as a result of pressure applied by the union to both Mr Holm and Mr Symond.  For these reasons, with the others to which I have pointed to above, I have therefore no hesitation in finding Mr Manna’s evidence to be entirely unreliable. 

4. For all the above reasons, if the factual dispute between Mr Holm and Mr Manna is resolved by reference to the credibility of their separate presentation of their evidence, I would confidently resolve it in favour of Mr Holm.  However, as I have noted above, it is not enough for me to discount the evidence of Mr Manna.  I must be positively, and comfortably, satisfied as to the truth of Mr Holm’s recollection of threatening words being spoken as alleged.  I can only achieve that satisfaction if, as well as finding Mr Holm to be a convincing witness, I accept that his evidence is consistent with “contemporary materials, objectively established facts and the apparent logic of events”.  In particular, I need to consider whether it is supported by, or inconsistent with, the evidence of the corroborative witness called by the applicant, and his contemporaneously prepared memoranda.  I also need to consider the inherent likelihood of the two versions of the conversation, when assessed in the light of surrounding circumstances which are uncontested or are more firmly established. 

Mr Younan’s evidence 

1. In his affidavit, Mr Younan said that he was a qualified formworker, concreter and steel fixer, and had been working in the building and construction industry for 30 years, having commenced at the age of 15.  He described the Toongabbie project, and Mr Symond’s office directly opposite the site. 

2. On 11 April 2006, he was on site supervising the work of his employees and subcontractors, and was summoned to Mr Symond’s office where he was meeting Mr Tulloch and Mr Manna from the union.  He made some notes on a piece of paper during the meeting, and in the course of the day in his diary.  The note commences with a list of what I take to be the three topics which he was told were for discussion: “pumping”, “Anything Concrete”, and “Xin Yun Pty Ltd” (a steel reinforcement company).  No notes are made about the first and last of these, but it records: “Anything Concrete: Possible problem with cash payments.  C.F.M.E.U.  Sammy wants to do an audit”.  Mr Manna is probably “Sammy”.  There is then a list of 8 concreting firms with noted phone numbers and contact details which, in his oral evidence, Mr Younan said was commenced in his handwriting, with someone else completing the list and then identifying three of them as “Sam recommended”.  At the bottom of the page is written, in handwriting which Mr Younan did not recognise as his: “Does Adrian still work for you (John?)”.  The reference to “John” appears to be to Mr Holm. 

3. Mr Younan’s diary entry for that day, includes these relevant entries: 

   6.Problems with Anything Concrete arising from meeting with M. Tulloch S. Manna S. Symond.  S. Manna not happy with Anything Concrete (made reference to Adrian). 

   7.Tried to resolve complications with John.  He faxed a release of contract if I want to accept I have to sign. 

   8.Made some inquiries with S. Symond re other possible concreters.  One coming on 12.04.06 @ 10.00 am NE office. 

   9.No resolution by 6.30pm. 

4. In his affidavit, Mr Younan recounted the following discussion and events concerning Anything Concrete occurring at the meeting: 

   28.Also during the meeting, Mr Manna and I had a conversation as follows:

   Manna:‘Who’s doing the concreting on the job?’ 

   Younan:‘Anything Concrete is doing the job.’ 

   Manna:‘Why are you using them?’ 

   Younan:‘They did some work for me up at The Entrance.  I find them to be reliable and their price is right.’ 

   Manna:‘They’re no good.  They can’t be legit and be doing the work for you at the price they are and travelling all the way from the Central Coast and working for you at such a cheap rate.  There is no way all his men are on wages, CBUS or workers comp.  Here are a number of concrete companies who you should try.  Can you write this down?  You might find these companies more reputable.  I suggest you ring one of these companies and get them to do the work for you.’ 

   29.Mr Manna then dictated a few concrete company names and some of their telephone numbers to me which I wrote down straight away on the sheet of paper that I was using at the meeting to take notes.  That sheet of paper is annexure ‘G’ to my affidavit.  The conversation then continued as follows: 

   Younan:‘I’ll look into it.  However, there is already an agreement between Conform and Anything Concrete.’ 

   Manna:(grinning):  ‘I’m sure there’s some way around that.  These are better companies.’ 

   Symond:‘We need to get John [Mr Holm] on the line.  There are serious issues here that need to be addressed.’ 

   30.Mr Symond made a telephone call to Mr Holm and put him on speaker phone.  The conversation continued as follows: 

   Symond:(directed to Mr Holm):  ‘I’ve got Sammy Manna from the union here who has raised a few concerns about your company.’ 

   Holm:‘What are the issues?’ 

   Manna:‘I need to speak to you.  Does Adrian still work for you?’ 

   Holm:‘Who’s Adrian?’ 

   Manna:‘We’re in a meeting.  Give me a call back in about 15 minutes because I need to speak to you.’ 

   Holm:‘Yeah, I’ll give you a call back.’ 

   Symond:(reading from the business card that Mr Manna gave him earlier):  ‘John, Sammy’s number is [a mobile telephone number]’. 

   This conversation occurred approximately 30 to 40 minutes into the meeting. 

   31.I also recall that some time during my conversation with Mr Manna about Mr Holm and Anything Concrete, Mr Manna said in reference to Anything Concrete words as follows: 

   Manna:‘They won’t be doing the job’. 

5. The statements by Mr Manna which are recalled by Mr Younan were not challenged by the respondents’ counsel in cross‑examination of Mr Younan, and at one point they appeared to be conceded.  However, Mr Manna denied that he spoke to Mr Holm on speaker phone, and disclaimed any knowledge of a union complaint about Anything Concrete concerning “Adrian” (see transcript 04.06.09 p.55). 

6. Mr Holm’s evidence contained no recollections of any mention of a past complaint being put to him in the course of any conversation on 11 April 2006, whether referring to “Adrian” or anything else.  He maintained his perception that the only grievance the union had about him and his firm was that its workers were not members of the union receiving “union extras”.  It was not put to Mr Holm in cross‑examination that, in fact, the union had a reason to want his firm excluded from the site, other than the absence from its workforce of union members receiving extra benefits. 

7. On all the evidence before me, and taking into account the absence of any evidence presented by the respondents or put to Mr Holm in cross‑examination giving any substance to the vague complaints made by Mr Manna to Mr Symond and Mr Younan, I find it probable that complaints about Anything Concrete were made by Mr Manna at the meeting, but that they were specious, cloaking the real objection of the two union officials to the employment of Anything Concrete on the project.  This suggests that Mr Manna had a real objection to Anything Concrete which he wished to present to Mr Holm privately over the phone, and a secret purpose in wishing to speak to him in the absence of witnesses.  In my opinion, the making of unfounded complaints about Anything Concrete at the site meeting lends support, and not the contrary, to Mr Holm’s account of an attempted coercion of him and his workers to join the union or to abandon the contract if they did not. 

8. It is true that Mr Holm’s recollection of a speaker phone call to him during the site meeting is different to that of Mr Younan.  He has no memory of Mr Manna speaking, nor any reference being made to him about “Adrian”.  He has a recollection that Mr Symond indicated a need for him to speak to Mr Manna, and that Mr Symond made reference to an earlier conversation “about giving the union some members”.  

9. I consider that these differences in recollection are understandable, taking into account the situation of each witness at the time of the speaker phone call, and that neither witness could be expected to have a perfect recall of this particular conversation.  I am inclined to prefer Mr Holm’s recollection of what was said to him in this and in later conversations, both because he was more confident in his recollections than Mr Younan, and also because Mr Younan participated in much longer and more numerous discussions on that day, and it is quite possible that Mr Younan’s memory of what was said in particular conversations might be confused. 

10. Mr Younan’s notes suggest that he did not receive any information from Mr Manna explaining the suggested complaint about “Adrian”.  It was his evidence that he had, and was given, no understanding of Mr Manna’s reference to “Adrian” (see transcript 03.06.09 p.18‑19), and that he did not raise this with Mr Holm that day.  His recollection is that he did not do so until his meeting with Mr Holm the following day.  This evidence also tends to support Mr Holm’s disclaimer of any knowledge that the union officials had suggested that a past incident explained the union’s hostility, and that the suggestion of complaints to Mr Younan and Mr Symond was concocted.  I consider it probable that Mr Manna did make reference to an unexplained complaint about “Adrian” when putting pressure on Mr Younan and Mr Symond to remove Anything Concrete from the project, but I am in doubt whether this was mentioned to Mr Holm in the speaker phone conversation, or, indeed, later conversations on that day, although it is clear that it was drawn to his attention during various conversations on 11 April 2006 that the union was objecting to his firm’s involvement in the project. 

11. In my opinion, the gist of what happened at the site meeting is clear: at Mr Manna’s insistence, Mr Holm was telephoned and placed on speaker by Mr Symond.  He was made aware that there was union concern about his firm performing work on the site, and was told that the union organiser wanted a private conversation with him.  If “Adrian” was mentioned, then the mention had no meaning or significance to Mr Holm and was unmemorable.  If Mr Symond made reference to his earlier conversation with Mr Holm about union membership, then this had no particular significance to Mr Younan.  It is therefore understandable that Mr Younan might have thought that Mr Manna’s desire to talk to Mr Holm concerned a past complaint, but that Mr Holm understood it to concern the union membership of his workers, including himself.  Once it is found that the complaint at the site meeting about “Adrian” was probably specious, then Mr Manna’s purposes are more likely to have been those understood by Mr Holm.  This reasoning supports a finding that Mr Manna’s true purposes were articulated during his subsequent conversation with Mr Holm. 

12. Mr Younan’s affidavit recounts conversations, in person or on the phone, after the midday site meeting and during the afternoon and evening of 11 April 2006.  The evidence suggests that, in fact, there were a number of calls between Mr Younan, Mr Symond and Mr Holm, and I consider that neither Mr Younan nor Mr Holm could be expected to have a clear memory of their content, sequence and timing, except when aided by telephone or facsimile records.  As Mr Holm said: “I had lots of conversations with Mr Younan and Mr Symond that afternoon” (see transcript 04.06.09 p.12), and Mr Younan said that he had conversations with Mr Holm which were not referred to in his affidavit (see transcript 03.06.09 p.14).  I consider it likely that Mr Younan’s memories of what he heard Mr Symond say to Mr Holm in the course of speaker phone conversations he overheard during that day, including the first one during the meeting with Mr Manna, are not perfectly reliable as to what was said in each conversation and in what order.  He recognised his fallibility during his cross‑examination: “There was a lot of discussion and Mr Holm wasn’t happy about forgoing a contract, I mean, he was doing the job and he needed the work, so it wasn’t as clear‑cut as that – but that was what eventually happened.  …  All I can recall is that Mr Symond talked him into signing a document which would release him if I had have signed it.  …  I was in Mr Symond’s office till 6.30 that evening.  There was a lot of conversations.  …” (see transcript 03.06.09 p.20). 

13. Although the affidavits of both men arranged their recollections of some of the conversations in a sequence, I do not accept submissions of the respondents’ counsel that the particular conversations each of them narrated in their affidavits must necessarily be the same conversations, nor that any material inconsistencies in Mr Holm’s evidence emerge when their evidence is compared.  Generally, I found Mr Holm’s evidence of the sequence and timing of events to be more persuasive and reliable, for example in relation to when he received Mr Symond’s draft letter and how he returned it.  The facsimile records show that this did not arrive until the early evening, and Mr Younan’s evidence probably compressed a series of conversations between Mr Symond and him about this.  It is clear that Mr Younan was involved in very protracted discussions with Mr Symond and other people throughout the afternoon, about how to deal with the union’s opposition to Anything Concrete.  It is understandable that Mr Younan retained only a general impression of the discussions and the phone calls which occurred in their course.  It is also understandable, that his memory might compress several conversations into one conversation, and be mistaken as to their timing.  Because of this situation, I would prefer the evidence of Mr Holm to that of Mr Younan, if any material inconsistency might appear in their evidence. 

14. Mr Younan has a memory of Mr Symond telling him after the site meeting with the union officials: 

    Symond:‘Is there any reason why Sammy Manna does not want Anything Concrete on this site?’ 

    Younan:‘No.  As far as I’m concerned, they’re OK.  I’ve given you all their paper work.  All the paper work is in order.’ 

    Symond:‘Have a look at the concreting firms that Sammy Manny suggested if for no other reason than to satisfy Sammy that we made the inquiry.  We’re going to have to work out how we can get rid of Anything Concrete without implications for your contract with them.  This is the best way.’ 

    Younan:‘What do you mean?’ 

    Symond:‘Let’s see what happens.  I’ll help you arrange it.’ 

    Younan:‘There’s no reason to get rid of them.  I can’t afford to get rid of them.’ 

    Symond:‘Let’s contact these companies and see what we can do.’ 

    Younan:‘Why should I get rid of him just because Sammy Manna’s not happy with him?’ 

    Symond:‘We want to keep the union on side.  As long as we do the right thing by them, they will leave us alone.’ 

    I would not draw any particular inference as to the time when this conversation occurred. 

15. I doubt Mr Younan’s estimation that a later call by Mr Symond to Mr Manna occurred “around 4.00pm” in which Mr Manna confirmed that “he hasn’t rung me”.  In view of the telephone record which identifies the time of a lengthy conversation between Mr Manna and Mr Holm as being around 3pm, I consider that Mr Symond’s call to Mr Manna, in which it was confirmed that Mr Manna had not yet spoken to Mr Holm, probably occurred at an earlier time.  I also consider it probable that a second conversation occurred between Mr Manna and Mr Symond which was overheard by Mr Younan, since point 2 in Mr Younan’s memorandum made the following day records that Mr Manna told Mr Symond that he had spoken to Mr Holm.  There is no other evidence of this, but it appears likely that such a conversation occurred, and that in it Mr Manna told Mr Symond that he had not reached consensus with Mr Holm and confirmed his hostility to Anything Concrete.  Such a communication would be consistent with Mr Symond’s actions in the late afternoon, when he urged Mr Holm to abandon his contract and drafted a letter to achieve this. 

16. I consider that Mr Younan was mistaken at paragraph 35 of his affidavit, when suggesting that it was only “a short time later” after Mr Symond’s first telephone conversation with Mr Manna, when Mr Symond advised Mr Holm to “pull out of the job” and told him that he was drafting the letter which was subsequently faxed to Mr Holm.  In fact, I find that this probably occurred towards the end of the afternoon, and probably after Mr Manna had reported to Mr Symond, that his conversation with Mr Holm had not resolved the union hostility. 

17. I consider it likely that information about Mr Holm’s conversation with Mr Manna also was received by Mr Symond from Mr Holm.  Whether in the course of this, Mr Holm told Mr Symond or Mr Younan that he had received threats from Mr Manna, is not beyond doubt.  Mr Younan’s present recollection is that he was not told this during his conversations with Mr Holm in the afternoon and evening of 11 April 2006.  However, Mr Holm recalls telling Mr Younan at some time during the afternoon that he had been threatened by Mr Manna, and I am inclined to consider that he probably made reference to this, since it would be consistent with Mr Younan’s desire for a meeting with Mr Holm the following day, so as to receive a full account of what had happened in his dealings with Mr Manna. 

18. Whatever the precise content and timing of the various conversations in the late afternoon of 11 April 2006, it is clear from Mr Younan’s evidence that Mr Symond’s belief became firm during the afternoon, that Anything Concrete should urgently be removed from the project so as to please the union, and that he conveyed this in strong language to both Mr Younan and Mr Holm.  According to Mr Younan, when discussing his draft letter with Mr Holm, Mr Symond “practically demanded that it was signed and re‑faxed that evening” (see transcript 03.06.09 p.17).  I find it probable that Mr Symond’s attitude became entrenched only after receiving a report from someone that Mr Manna’s contacts with Mr Holm had not been constructive in placating the union.  It is clear from Mr Holm’s recorded behaviour that evening, that he was, in fact, persuaded in the course of telephone discussions with Mr Symond to execute the letter offering to terminate his contract, and to induce his partners to do likewise.  It is a clear inference from these events, and I find confidently, that as a result of his conversations with Mr Manna and Mr Symond during the afternoon of 11 April 2006, Mr Holm gave way to direct and indirect pressure from the union to abandon a major contract of great importance to his firm. 

1. Mr Younan records receiving a fax from Mr Symond during the evening of 11 April 2006, forwarding the letter signed by the Anything Concrete partners.  He said he decided to meet Mr Holm the next day.  Clearly, he must then have arranged this with Mr Holm, although he does not refer in his affidavit to the conversation which arranged this. 

2. Mr Younan’s state of mind in relation to the events narrated by him was little explored in evidence, and his motivations were not clearly articulated.  However, his actions on 12 April 2006, and his presentation in the witness box, showed him to be a man of considerable firmness of character, and to be less compliant than Mr Holm to give way to union pressure for the exclusion of Anything Concrete from the project.  

3. I have above described how Mr Younan thought it important at the meeting on 12 April 2006 to make a record of Mr Holm’s account of being threatened by Mr Manna.  It is likely that both men must have felt, and shared, some anger and resentment at his behaviour.  I have above set out the terms of Mr Younan’s memorandum.  In cross‑examination he said that he wrote it because “I smelt a rat.  …  I felt that someone was – going to – well, someone was trying to get shafted.  …  I felt it was important insofar as what Mr Sammy Manna was saying to him [Mr Holm] was contradictory to what he was telling myself and Mr Symond” (see transcript 03.06.09 p.27, also re‑examination at p.31).  His perception of the need for a record was not shared with Mr Holm, who said: “I was wondering why he was writing it down”.  Mr Holm accepted that the note recorded some of what he told Mr Younan, but did not accept that it was necessarily a verbatim or complete account of their conversation.  Plainly, it is not.  Nor did Mr Younan claim that it was anything more than a précis of points which he regarded as important to record. 

4. The respondents’ submissions gave great emphasis to the absence in Mr Younan’s memorandum of express reference to Mr Manna conditioning his threats to Mr Holm upon a refusal to join the union.  I have given careful consideration to the significance of this point, before accepting Mr Holm’s evidence as to what was said to him by Mr Manna.  Nowhere was it suggested in cross‑examination of Mr Younan that Mr Holm made no mention to him that Mr Manna’s threats included statements demanding that Mr Holm and his workers should join the union, and I would not draw any conclusions as to how Mr Younan might have responded to this point, if it had been squarely put to him. 

5. I have above referred to Mr Holm’s evidence that he made known to Mr Younan that Mr Manna’s threats arose out of a demand that Mr Holm and his workers should join the union, notwithstanding that the relevant words he now attributes to Mr Manna are not recorded in Mr Younan’s memorandum.  There is a suggestion in the memorandum of an attempted coercion to join the union and pay union “extra” benefits, in paragraph 4(d), since “ACIRT” is a union sponsored redundancy payments trust, and “C.B.U.S” is a union supported superannuation fund.  There is also a clear indication in paragraphs 5 and 6 that Mr Manna’s threats arose out of Mr Holm’s refusal to accept that his workers should receive benefits which would follow from union membership.  I therefore do not accept that there is any direct inconsistency between Mr Younan’s memorandum and Mr Holm’s evidence to the Court.  To the contrary, I consider that it provides general support for Mr Holm’s evidence.  

6. Assessing the evidence of both witnesses about their meeting at The Entrance on 12 April 2006, I conclude that Mr Holm at all times was firmly of the belief that it was obvious to everyone, and to Mr Younan and Mr Symond in particular, that Mr Manna’s threats were made with an intent to coerce Mr Holm and his workers to join the union or abandon the project.  This conviction probably meant that this was not something he thought necessary to dwell on nor explain to Mr Younan in detail at any stage. 

7. Mr Younan’s opinions over the relevant period about the union’s purposes for objecting to Anything Concrete were not explored in evidence, and are unclear.  During all the discussions to which he was privy on 11 April 2006, he seems to have been left unsure about the true reasons for the union hostility to Anything Concrete, and he was keen to get Mr Holm’s account of this from him.  Mr Younan’s apparent concern in making a memorandum was to record a chronology of events and the threats which had been made, not their expressed or implicit intent or motivation on the part of Mr Manna and his union.  This is clear from his memorandum.  He was not legally trained, and is unlikely to have understood that the stated or apparent reasons for Mr Manna’s threats was something which should be recorded.  

8. In all these circumstances, I am not persuaded that Mr Holm did not convey to Mr Younan at their meeting on 12 April 2006 that Mr Manna’s threats were accompanied by words which indicated that they were conditioned upon Anything Concrete remaining in the project without its workers joining the union.  I would not find that the record made by Mr Younan establishes that words expressing this were not spoken by Mr Manna to Mr Holm, nor reject Mr Holm’s evidence that the words he attributes to Mr Manna were spoken to him. 

9. What is made irrefutably clear from Mr Younan’s notes, and from my acceptance of Mr Younan as a disinterested witness whose notes can be accepted as contemporaneous records, is that Mr Manna’s disclaimer of having made any threats to Mr Holm to induce his abandonment of his contract cannot be accepted. 

10. Mr Younan said in his affidavit that, after completing the note of Mr Manna’s threats, he had the following conversation with Mr Holm: 

    Younan:‘What about this Adrian character?’ 

    Holm:‘Who’s Adrian?  I don’t know what you are talking about.’ 

    Younan:‘Because Symond wants you off the site, he’ll fabricate some excuse via the contract to put pressure on me to terminate the contract.’ 

    Holm:‘All Symond can do is maybe find something wrong with the work and under the contract I acknowledged that we will rectify any defects.’ 

    Younan:‘I am more concerned about Symond putting pressure on Conform, using the contract to put pressure on me to get rid of you.’ 

    Holm:‘If you want us to, we are still prepared to go back to the site to do the work.’ 

    Younan:‘I’ll contact you when the next pour is.  I am not the one trying to get rid of you but I am being pressured by Symond.  Are you still happy to finish the job?’ 

    Holm:‘I am happy to finish the job but I have already faxed the request to cancel the contract to Symond as he requested.’ 

    Younan:‘The release is not valid unless I sign it.  As of yet I have not signed it and after our discussion today, I have no intentions of signing it.’ 

    Holm:‘What about Symond?’ 

    Younan:‘Let me worry about that.’ 

11. He gave the following account of a conversation with Mr Symond on 3 May 2006, soon after the commencement of concreting work by Anything Concrete.  It lends some support to Mr Holm’s belief that Mr Symond had been privy to the union’s hostility to the employment of workers on the project who were not members of the union: 

    Symond:‘I told you we can’t use Anything Concrete.  I haven’t approved them, yet you’ve persisted in using them.’ 

    Younan:‘Yes, only because you verbally gave me consent and it wasn’t until Sammy Manna came on the scene that you did not want anything to do with them.’ 

    Symond:‘It’s not Sammy’s problem, it’s your problem  I keep explaining to you how the finish of the concrete is very important to us especially where Woolworths is concerned.  I know I can’t tell them to leave, however I’m telling you now I need a letter from you that you have acted on what we have observed today and that you wouldn’t accept them on the job if the next slab wasn’t up to standard.  I’ll terminate your contract and claim liquidated damages.  I went to the trouble of arranging the release, you refused to cooperate knowing of our involvement with the union on the job, we spoke about this before you started on the job.  Now I will have to do things to get them off the site and that will be through you.’ 

    Younan:‘Fair enough’. 

12. As I have noted, Mr Symond expressed further unhappiness with Anything Concrete’s work.  This led to its consensual withdrawal from its contract with Conform on 10 May 2006.  

The probability of Mr Holm’s evidence being true 

1. The submissions of the parties invited me to put at the forefront of my consideration of the case whether Mr Holm’s account of what was said to him by Mr Manna was true. In particular, whether Mr Manna spoke words which in their expressed terms threatened to cause harm to Anything Concrete if it continued with its contract without employing workers who were union members. The respondents emphasised that this was the full allegation which was made, and that it was not merely the making of threats which might have been accompanied with an unspoken intent relating to union membership. They submitted that, as a consequence, the applicant could not invoke s.809 of the Act, which would shift an onus of disproving the intent prohibited by s.789 onto the respondents.

2. The applicant did not accept that he could not invoke s.809, but his principal submission was that I should accept that the words attributed to Mr Manna were spoken, and that their expressed terms satisfied the language of s.789 both as to “threaten to organise or take any action” and as to “with intent to coerce” Mr Holm and his workers to become members of the union. 

3. As I shall explain, I accept the applicant’s submissions that the words attributed to Mr Manna were, in their context, sufficient to allow satisfaction as to all elements of s.789, without invoking s.809. I therefore accept that the case essentially turns upon my satisfaction that these words were actually said by Mr Manna.

4. My above discussion of the evidence of the three witnesses has made many points which explain why I do not accept Mr Manna’s evidence, and why Mr Holm’s evidence should be accepted.  In relation to this issue, the respondents urged upon me the consideration that “it is appropriate to apply the Briginshaw standard of proof”, citing Dixon J’s well known discussion in Briginshaw v Briginshaw (1938) 60 CLR 336 at 362. I accept that “the gravity of the consequences” of a civil prosecution of the present type might be substantial, and that this should be taken into account when applying the civil standard of proof in accordance with Dixon J’s advice, which is now also reflected in s.140(2)(c) of the Evidence Act 1995 (Cth).

5. The present context is not one where the applicant may be said to rely only on “inexact proofs, indefinite testimony, or indirect inferences”.  He presents a witness with the best, direct, evidence of a contravention.  However, I accept that the assessment of that witness’s testimony must take into account the matters pointed to in Fox v Percy cited above, which go beyond being convinced by a witness’s demeanour in the witness box, and must also take into account Dixon J’s reminder that “the seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal”.  

6. In the present case, the established background to Mr Manna’s interest in the concreting contracts at the Toongabbie project, his attendance and statements at the site meeting, the subsequent conduct of Mr Symond, and the recorded actions of Mr Holm on the evening of 11 April 2006, and of Mr Holm and Mr Younan on 12 April 2006, all point substantially to the truth of Mr Holm’s evidence.  In the light of this background, and my acceptance of Mr Holm’s credibility as a witness, I am very comfortably satisfied that he received threats of adverse union action which he perceived to be sufficiently strong to cause him to accept advice that he should abandon a highly important contract.  No other reason is suggested to have actuated his conduct on that evening. 

7. In my opinion, Mr Holm’s recollection that Mr Manna made serious threats linked to Mr Holm’s refusal to contemplate the employment of union members, is entirely consistent with the sequence of well established events, including: (i) Anything Concrete winning the contract with Conform based on business calculations for a non‑union workforce of subcontractors; (ii) a site meeting where relevant union organisers pressure the managers of North Eastern and Conform to engage a contractor approved by the union; (iii) the making of unfounded complaints against Anything Concrete; (iv) the particularly relevant union organiser’s desire for a private conversation with Mr Holm in the course of the application of that pressure; (v) the head contractor’s frantic desire to placate the union; (vi) the confirmed fact of a long telephone conversation between Mr Manna and Mr Holm; and (vii) Anything Concrete giving way to the head contractor’s pressure to abandon its contract.  

8. Turning to the likelihood that Mr Manna would make serious threats to induce a non‑unionised subcontractor either to change his labour practices or to abandon his involvement in a substantial building project of interest to the union, I am far from satisfied that he is a person who would not do this.  His presentation as a witness is at the forefront of my doubts about this.  As I have found, his evidence was entirely unreliable.  He has presented a version of a conversation with Mr Holm which is unbelievable, in the circumstances established otherwise than by Mr Holm’s recollections of the content of the conversation.  For example, I find it simply unbelievable that Mr Holm would, on the one hand, be keen to enrol his workers in the union at 3 pm and to be encouraged to do so by Mr Manna, but at 6 pm agree to throw up his contract when advised to do so by Mr Symond as a result of perceived union hostility.  No other witness was presented by the respondents to contradict the background evidence supporting the truth of Mr Holm’s account of his conversation with Mr Manna.  Nor is there any evidence pointing to the unlikelihood that Mr Manna’s perception of his union responsibilities might not have led him into the making of unlawful threats when pursuing a desire that the contractors on the Toongabbie site should employ union members.  I am driven to the conclusions that Mr Manna’s evidence was contrived to answer Mr Holm’s evidence, that he must have been aware of the contrivance, and that he must also have been aware that the true contents of the telephone conversation evidenced prohibited conduct. 

9. When assessing the evidence, I do not accept that the absence of Mr Symond as a witness weighs against an acceptance of Mr Holm’s evidence.  Mr Symond’s actions, in so far as they provided relevant background to the allegations against Mr Manna, sufficiently appeared in the evidence of Mr Younan and Mr Holm which was served on the respondents.  The respondents had the opportunity to contradict the implications of that evidence, including by calling Mr Symond, whose absence is unexplained.  All that I can infer is that both parties decided that his evidence as a witness would not advance their cases any further.  A stronger inference in relation to the respondents’ case might be drawn from the absence of the other union official who attended the site meeting on 11 April 2006, Mr Tulloch, and whose absence as a witness is unexplained.  However, I have been able to decide this case without needing to draw any weight from speculations about what evidence might have been given by witnesses who did not give evidence. 

10. For all the above reasons pointed to in my examination of the evidence of the witnesses, and of the broader context of the evidence and the allegations against Mr Manna, I am comfortably satisfied that he made threats in the terms attributed to him by Mr Holm. 

Mr Manna’s conduct contravened Section 789 

1. When explaining why I have concluded that the threats made to Mr Holm, in their surrounding circumstances, establish a contravention of s.789, it is useful to set out that provision in full:

   789Coercion 

   (1)A person must not organise or take, or threaten to organise or take, any action against another person with intent to coerce the other person or a third person: 

   (a)    to become, or not become, an officer or member of an industrial association; or

   (b)    to remain, or cease to be, an officer or member of an industrial association. 

   (2)Subsection (1) is a civil remedy provision. 

   Note:  See Division 9 for enforcement. 

2. Both counsel referred me to numerous authorities in the Federal Court which have considered similarly worded provisions of this Act and its predecessor legislation.  In particular, they both submitted that the previous approach to prohibitions on threats of action “with intent to coerce” a defined outcome, should be applied by me.  These authorities were recently applied by Jessup J in Williams v Construction, Forestry, Mining & Energy Union [2009] FCA 223, (2009) 179 IR 441, and I do not consider it necessary for me to trace their preceding development. In particular, I accept that it is necessary that a threat of action involving an intent to coercion must have a capacity for compulsion on its recipient, so that it can be concluded that “it was intended that pressure be exerted which, in a practical sense, will negate choice”.  It is also necessary that the pressure “must involve conduct that is unlawful, illegitimate or unconscionable”, and that the maker of the threats “had actual knowledge of the circumstances that made [his] conduct coercive” in that sense (see Merkel J in Seven Network (Operations) Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing & Allied Services Union of Australia (2001) 109 FCR 378 at [41]‑[43], cited in Williams (supra) at [105]). I also accept that if the threats had several purposes or objectives, the proscribed intent or reason must be “a substantial or operative” intention in the making of the threats (cf. Williams (supra) at [103]).

3. However, once I accept Mr Holm’s evidence, I have little difficulty being satisfied as to all the elements of s.789, including those arising under judicial gloss on its language:

   i)I am satisfied that Mr Manna’s words were made to Mr Holm as a “person” and, in my opinion, taking into account his apparent authority in his business they also were made to the three “persons” who were the partners in Anything Concrete.  I find that they “threatened to organise or take” action against him and his partners in Anything Concrete as “persons”. 

   ii)Although Mr Manna said “we’ll” take the action, he was clearly including himself with other union officials and supporters as one of the organisers of the threatened interference with the business. Section 789 encompasses threats made by one person acting for himself or in an official capacity for several persons. The “action” which is threatened does not necessarily need to be actions of that person, nor of other persons for whom he or she acts, since the section encompasses actions of third persons “organised” by the maker of threats. In my opinion, Mr Manna’s statements threatened “action” falling within that section.

   iii)In my opinion, Mr Manna used threatening language to procure either the union membership of the Anything Concrete workforce or to force it to abandon the project so as to allow a union approved contractor to be employed.  The fact that the latter purpose may have appeared more dominant in Mr Manna’s words and actions is explained by Mr Holm’s likely and then apparent intransigence against joining the union.  The evidence of a later purpose of removing Anything Concrete from the site, does not diminish the fact that Mr Manna had offered Mr Holm an alternative method of placating the union by his becoming a member and paying union benefits to his workers.  I therefore consider that the proscribed intention, if mixed with other intentions which became dominant, was a “substantial or operative” intention at the time that the relevant words were spoken. 

   iv)The expressed language of the threats, as well as the implication from the surrounding circumstances, reveals that there was an intention to coerce Mr Holm personally to become a member of the two industrial associations of which Mr Manna was an officer and organiser.  Although there was an obvious ambiguity in the language, I also consider that, in context, his demand that “you ... join the union” also was probably intended to encompass the other workers who would be engaged by Anything Concrete to perform work under its contract with Conform. In my opinion, Mr Manna intended to prevent concreting workers being employed on the project who did not receive the union supported benefits, and it seems likely that he also expected their employer to procure their joining the union as part of the benefits which he was promoting. I therefore find that there was an intent to coerce both “the person” and “third persons” (implying a plural) within the language of s.789.

   v)In the light of the person who made the threats, and the context in which they were made, they were capable of exerting overwhelming influence on a contractor in the building industry such as Mr Holm, either to conform to union demands proscribed by s.789 or to abandon his contractual rights. This is notwithstanding that the threats used colloquial and imprecise language: “bankrupt”, “have audited”, and “screw you and make your life a misery”. In the context, the vagueness of their language is likely to have increased, not lessened, the apprehensions of Mr Holm and the coercive effects of the threats.

   vi)The threats were capable of “negating choice” in a practical sense.  This is apparent from the obvious vulnerability of a relatively small subcontractor in the building industry to a union‑organised attack on its financial stability.  In relation to a project where the head contractor appeared to be amenable to union demands, the action threatened was serious action.  More significantly, the negation of apparent choice is established by Mr Holm’s evidence of his and his partners’ readiness to accept that they must take the option urged by Mr Symond of abandoning their important contract in the face of the union hostility. 

   vii)I do not accept the respondents’ submission that a coercive quality to the threatened action is disproved by the subsequent facts that Anything Concrete’s workers did not join the union, that the contract was not terminated, and that Anything Concrete attempted to perform the contract and did so in part. Section 789 clearly is intended to encompass threats of coercion which, in fact, are unsuccessful in achieving either the outcome which was their purpose or the harm which was threatened. Its focus is upon the content and quality of threats viewed at the time they are made. In the present case, Mr Holm’s reactions on 11 April 2006 have greater significance, than his change of heart when Mr Younan refused to accept Anything Concrete’s offer of abandonment. Moreover, on the evidence before me, I am not satisfied that, in fact, Anything Concrete did not suffer serious financial loss in relation to its Conform contract for the Toongabbie project, as a result of the union hostility which was reflected in Mr Manna’s threats, and which I have found to have been due solely to the absence in its workforce of union members drawing union benefits.

   viii)The potentially coercive effects of the threats were, in my opinion, known to and intended by their maker.  This is apparent from the language used by Mr Manna and the context in which it was used.  His coercive purposes cannot have been accidental, and I consider that Mr Manna must have been conscious of the coercive effect of his words at the time.  I consider that his awareness of his contravening conduct is confirmed by the presentation of his contrived evidence about his conversation with Mr Holm.  This shows that he probably was at the time, and remains, conscious that he was applying unlawful coercion to achieve union objectives to which he gave priority over the legitimacy of his methods. 

   ix)The illegitimacy of the pressure applied by Mr Manna is apparent. No legitimate justification for the union to interfere in the contractual relations of Conform and Anything Concrete has been established, or even pointed to, in the evidence and submissions of the respondents. Whatever the benefits of union membership and the receipt by building workers of union sponsored benefits might be, it was plainly contrary to the purposes and provisions of the Workplace Relations Act to coerce the exclusion of a subcontractor based upon the union membership status of his workforce. The protections of freedom of association given under Part 16 include both the rights of building workers to belong to a union, and their rights not to belong to a union (cf. s.778(a)), and Mr Manna’s coercive threats appear inconsistent with the protections of the latter rights which are provided under s.789.

1. I am therefore satisfied that Mr Manna’s conduct contravened s.789 of the Workplace Relations Act.

Application of Division 2 of Part 16 

1. The respondents presented elaborate written submissions which challenged whether s.789 had application to Mr Manna’s conduct pursuant to any provision of Division 2 of Part 16. In that Division, s.782 provides that later Divisions, including s.789, “apply only to the extent provided in this Part”. The subsequent sections in Division 2 then contain various “hook” provisions which appear designed to ensure that the prohibitions in Part 16 are supported by a head of power available to the Commonwealth legislature under the Constitution.

2. I can detect in the terms of Division 2 no intention to confine the application of Part 16 so that it would not apply to conduct of the type which I have found above, and it seems most unlikely that the Act has this intention. However, the respondents’ submissions addressed each of ss.783 through 788, with arguments to establish that Mr Manna’s conduct did not come within any of their terms.

3. The respondents’ submissions appear to accept that each “hook” section is self sufficient, and that it is necessary to find only one of them having application. This, in my opinion, is manifest. I therefore find it necessary only to address the respondents’ arguments concerning s.783, since I am satisfied that it has application to the present case. I do note, however, that it is difficult to see why Mr Manna’s conduct towards Mr Holm and Anything Concrete was not also “hooked” by s.785(1)(e)(ii) or (f)(ii), since the conduct affected, and was intended to affect, that firm in its capacity as “a contractor, or prospective contractor, of a constitutional corporation”. 

4. Section 783 provides:

   783Organisations 

   This Part applies to: 

   (a)conduct by an organisation; and

   (b)conduct by an officer of an organisation acting in that

   capacity; and

   (c)conduct carried out with a purpose or intent relating to a person’s membership or non‑membership of an organisation. 

5. For the purposes of Part 16, s.779 defines “organisation” as “includes a branch of an organisation”. This supplements the generally applicable definition in s.4(1): “an organisation registered under the Registration and Accountability of Organisations Schedule”, which itself is defined as “Schedule 1”.  However, it is unnecessary to examine the provisions of Sch.1, since the first respondent has admitted that it is such an organisation. 

6. Upon my above findings, Mr Manna undoubtedly was engaging in “conduct by an officer of an organisation acting in that capacity” when making his threats to Mr Holm.  This was not seriously disputed.  This capacity in which his conduct was engaged in, is not affected by it concurrently being engaged in as an officer of its sister State registered union which was not “an organisation”. I therefore have no difficulty finding that s.783(b) applies to Mr Manna’s conduct. This would appear to be sufficient to allow s.782 to permit the enforcement under s.807 of a contravention of s.789 constituted by Mr Manna’s conduct.

7. However, the respondents submitted that the three paragraphs of s.783 use the word “and” in a conjunctive manner, so that all three paragraphs must be satisfied before s.783 applies. It is then argued that the applicant has not established that Mr Manna’s conduct was “carried out with a purpose or intent relating to a person’s membership or non‑membership of an organisation” within the language of s.783(c).

8. I do not need to examine the second wing of the argument, although I was not persuaded that these findings could not be made on the evidence before me. This is because I consider that the paragraphs of s.783 clearly should not be read in a conjunctive or cumulative manner. In my opinion, they are three 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.

9. In my opinion, this is clear from the syntax of the section. Three separate species of “conduct” are described, and the section indicates that Part 16 applies to each and all of them. The repetition of the word “conduct” in each paragraph shows, with the use of “and”, that the section must be read as if the opening words “this Part applies to” were repeated at the beginning of each paragraph. Read in this fashion, the repetition of “and” does not indicate that one species of conduct satisfying three separate descriptions is intended. There are therefore three alternative species of conduct provided under s.783, each of which provides a “hook” for the application of Part 16.

10. The same pattern of separate heads of application is also provided under the subsequent sections, notwithstanding that their drafting adopted different syntax, requiring different use of conjunctive words. Thus, under s.784(1) the opening words refer to “conduct” of a certain type, and the following paragraphs then provide further specifications which are shown to be alternatives by the use of “or”. The next section, s.785, has an introductory phrase differing from s.783, which explains why no conjunctions were needed. It commences: “this Part applies to the following conduct”, and then lists various species of conduct without any conjunction.  It is the distributive opening words and the repetition of the word “conduct” in each paragraph, which indicate that alternative application provisions are intended. 

11. In my opinion, these differences of syntax and the use of “and” and “or” are accidents of drafting which, I assume, have historical origins.  In my opinion, they provide no support for the construction argued by the respondents. 

12. Nor do the authorities cited by the respondents provide any support for their construction.  Their reliance on the judgment of Gyles J in A & L Silvestri Pty Ltd v Construction, Forestry, Mining & Energy Union (2007) 165 IR 94 at [75]‑[76] is misconceived. His brief reasons for finding that certain conduct in that case did not fall within s.298D(c) suggests that he held an opinion that this was a self‑standing “hook” provision, not the contrary. The only other authority cited is Victims Compensation Fund Corporation v Brown (2003) 201 ALR 260 at [12], but it provides no analogy, since the High Court was construing a reference to “and” found within one paragraph of a section having no similarity with s.783.

13. I accept the submissions of the applicant, that a disjunctive construction of s.783 is supported not only by the syntax and purpose of the section, but also by the application of recognised principles of statutory construction (he cited Re Peat Resources of Australia Pty Ltd; Ex parte Pollock [2004] WASCA 122 at [54], [98]‑[99], [101]–[115]; Pileggi v Australian Sports Drug Agency (2004) 138 FCR 107 at 118; Re The Licensing Ordinance (1968) 13 FLR 143 at 147 and Pearce, D.C. and Geddes, R.S., Statutory Interpretation in Australia (6^th ed) at [2.25‑2.26]). 

14. Once a “hook” is provided for the application of Part 16 in relation to Mr Manna’s conduct, it is of no significance that the second respondent was not an “organisation” as defined in the Act. That Part must be allowed to take effect according to its terms in relation to Mr Manna’s conduct. Part 16 imposes liability to the imposition of a penalty under s.807 for the conduct on the direct actor, Mr Manna, and also imposes deemed liability for that conduct on each of the first and second respondents as an “industrial association”, by operation of s.779(2). As I understand their submissions, it is not disputed by the first and second respondents that both of them fall within the language of s.779(2)(b) in relation to Mr Manna’s conduct, as “conduct of an officer or agent of the industrial association acting in that capacity”. 

15. For all of the above reasons, I am satisfied that each of the three respondents is liable to the imposition of a penalty or other order under s.807 in relation to a contravention of s.789.

16. I shall give the parties an opportunity to present further evidence and submissions relevant to the giving of that relief, before making any orders or declarations. 

I certify that the preceding one hundred and four (104) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate:  Lilian Khaw

Date:  10 July 2009