Alfred v Primmer & Ors (No.2)

Case [2008] FMCA 1476


FEDERAL MAGISTRATES COURT OF AUSTRALIA

ALFRED v PRIMMER & ORS (No.2) [2008] FMCA 1476

INDUSTRIAL LAW – Union official advising and encouraging prejudicial alteration in independent contractor’s position for a prohibited reason – liability of union for officer’s contravening conduct – union’s liability as principal – union’s vicarious liability – civil penalty proceedings – standard of proof – div.2 of Pt.16 of Workplace Relations Act 1996 not an independent source of liability.

WORDS and PHRASES – “proceeding” – “proceeding under an industrial law” – “advise” – “encourage” – “person”.

Workplace Relations Act 1996, ss.4, 16, 285A, 420, 779, 783, 785, 792, 793, 800, 807, 809, 826
Industrial Relations Act 1988 (Cth), ss.335, 349
Industrial Relations Act 1996 (NSW), ss.130, 209, 222
Acts Interpretation Act 1901, s.22
New South Wales v Lepore (2003) 212 CLR 511
PG & LJ Smith Plant Hire Pty Ltd v Lanskey Constructions Pty Ltd (2004) 137 IR 98
Hadgkiss v Construction, Forestry, Mining & Energy Union [2008] FCAFC 22
Hamberger v Construction Forestry Mining & Energy Union (2000) 104 IR 45
Kelly v Construction, Forestry, Mining & Energy Union (1995) 59 IR 86
Kelly vConstruction, Forestry, Mining & Energy Union (No.3) (1995) 63 IR 119
Burnie Port Corporation Pty Ltd v Maritime Union of Australia (2000) 103 IR 153
Employment Advocate v Williamson (2001) 111 FCR 20
Pelechowski v The Registrar, Court of Appeal (NSW) (1999) 198 CLR 435
Attorney-General (NSW) v Mayas Pty Ltd (1988) 14 NSWLR 342
Berowra Holdings Pty Ltd v Gordon (2006) 225 CLR 364
Employment Advocate v National Union of Workers (2000) 100 FCR 454
Fisher v Minister for Immigration & Citizenship [2007] FCA 591
Briginshaw v Briginshaw (1938) 60 CLR 336
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170
Australian Competition & Consumer Commission v Australian Safeway Stores Pty Ltd (No.2) (2001) 119 FCR 1
Hanley v Automotive, Food, Metals, Engineering, Printing & Kindred Industries Union (2000) 100 FCR 530
Australian Workers’ Union v BHP Iron-Ore Pty Ltd (2000) 106 FCR 482
R v Australian Industrial Court; Ex parte CLM Holdings Pty Ltd (1997) 136 CLR 235
A & L Silvestri Pty Ltd v Construction, Forestry, Mining & Energy Union (2007) 165 IR 94
Rowe v Transport Workers’ Union of Australia (1998) 90 FCR 95
Applicant: GREGORY CHARLES ALFRED
First Respondent: PETER PRIMMER
Second Respondent: CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION
Third Respondent: CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION (NSW BRANCH)
File Number: SYG 1222 of 2007
Judgment of: Cameron FM
Hearing dates: 22 & 26 September 2008
Date of Last Submission: 26 September 2008
Delivered at: Sydney
Delivered on: 3 November 2008

REPRESENTATION

Counsel for the Applicant: Mr I. Neil S.C. with Mr C. Bolger
Solicitors for the Applicant: Bartier Perry
Counsel for the Respondents: Mr J.H. Pearce
Solicitors for the Respondents: Taylor & Scott

ORDERS

THE COURT DECLARES THAT:

  1. On 12 October 2006 at Kiama between 8.00am and 11.00am the first respondent contravened s.800(1)(a) of the Workplace Relations Act 1996

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Details
AGLC
Alfred v Primmer & Ors (No.2) [2008] FMCA 1476
Case
[2008] FMCA 1476
Decision Date

CaseChat Overview and Summary

The case of Alfred v Primmer & Ors (No.2) involved a dispute under the Workplace Relations Act 1996. The plaintiff, Alfred, brought proceedings against the respondents, Primmer, the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU), and the CFMEU (NSW), for allegedly contravening sections of the Act. Specifically, the plaintiff alleged that the respondents had advised and encouraged a prejudicial alteration in his position as an independent contractor for a prohibited reason. The legal issues before the court were whether the union could be held liable for the contravening conduct of an officer and whether the union could be held vicariously liable for the actions of its officer.

The court held that the union could indeed be held liable for the contravening conduct of an officer if it was acting within the scope of their actual or apparent authority. The court found that Primmer, as an officer of the union, was acting within the scope of his authority when he advised and encouraged the alteration in the plaintiff's position. The court further held that the union could be held vicariously liable for the actions of its officer if the actions were done in the course of employment. The court found that Primmer's actions were done in the course of employment, and therefore, the union could be held vicariously liable.

The court also held that the standard of proof in civil penalty proceedings under the Act was not an independent source of liability. The court found that the unions were liable for the contravening conduct of Primmer under sections 800(1)(a) and 826(2) of the Act. The court further held that the unions were liable for the contravening conduct of Primmer as principals under sections 779(2) and 826(2) of the Act.

The court declared that the respondents contravened sections 800(1)(a) and 792(5) of the Act by advising and encouraging Camarda & Cantrill Pty Ltd to take action in relation to Fine Line Painting (Aust) Pty Ltd that would, if taken, have contravened s.792(5) of the Act. The court also ordered that the respondents' application in a case filed on 7 April 2008 be refused and that the further hearing of the application be adjourned to 10:15am on a date to be fixed.

Orders

Orders of the court

THE COURT DECLARES THAT:

1.

On 12 October 2006 at Kiama between 8.00am and 11.00am the first respondent contravened s.800(1)(a) of the Workplace Relations Act 1996 (“Act”) by advising and encouraging Camarda & Cantrill Pty Ltd to take action in relation to Fine Line Painting (Aust) Pty Ltd that would, if taken, have contravened s.792(5) of the Act.

2.

On 12 October 2006 at Kiama between 8.00am and 11.00am the second respondent contravened s.800(1)(a) of the Act by reason of the conduct of the first respondent who was its officer, employee and agent acting in that capacity by advising and encouraging Camarda & Cantrill Pty Ltd to take action in relation to Fine Line Painting (Aust) Pty Ltd that would, if taken, have contravened s.792(5) of the Act.

3.

On 12 October 2006 at Kiama between 8.00am and 11.00am the third respondent contravened s.800(1)(a) of the Act by reason of the conduct of the first respondent who was its officer, employee and agent acting in that capacity by advising and encouraging Camarda & Cantrill Pty Ltd to take action in relation to Fine Line Painting (Aust) Pty Ltd that would, if taken, have contravened s.792(5) of the Act.

4.

On 12 October 2006 at Kiama between 11.00am and 12.00pm the first respondent contravened s.800(1)(a) of the Act by advising and encouraging Camarda & Cantrill Pty Ltd to take action in relation to Fine Line Painting (Aust) Pty Ltd that would, if taken, have contravened s.792(5) of the Act.

5.

On 12 October 2006 at Kiama between 11.00am and 12.00pm the second respondent contravened s.800(1)(a) of the Act by reason of the conduct of the first respondent who was its officer, employee and agent acting in that capacity by advising and encouraging Camarda & Cantrill Pty Ltd to take action in relation to Fine Line Painting (Aust) Pty Ltd that would, if taken, have contravened s.792(5) of the Act.

6.

On 12 October 2006 at Kiama between 11.00am and 12.00pm the third respondent contravened s.800(1)(a) of the Act by reason of the conduct of the first respondent who was its officer, employee and agent acting in that capacity by advising and encouraging Camarda & Cantrill Pty Ltd to take action in relation to Fine Line Painting (Aust) Pty Ltd that would, if taken, have contravened s.792(5) of the Act.

THE COURT ORDERS THAT

7.

The respondents’ application in a case filed on 7 April 2008 be refused.

8.

The further hearing of the application be adjourned to 10:15am on a date to be fixed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Regard can also be had to s.222 of the IRA which provides:222 Incorporation of State organisations on registration A State organisation, when registered under this Chapter: (a) is a body corporate, and (b) has perpetual succession, and (c) has power to purchase, take on lease, hold, sell, lease, mortgage, exchange and otherwise own, possess and deal with any real or personal property, and (d) is required to have a seal, and (e) may sue or be sued in its registered name. Section 779(1) of the Act also relevantly provides:“industrial association” means: (a)an association of employees and/or independent contractors, or an association of employers, that is registered or recognised as such an association (however described) under an industrial law; or (b)an association of employees and/or independent contractors a principal purpose of which is the protection and promotion of their interests in matters concerning their employment, or their interests as independent contractors, as the case requires; or (c)…and includes a branch of such an association, and an organisation.and“industrial law” means this Act, the Registration and Accountability of Organisations Schedule or a law, however designated, of the Commonwealth or of a State or Territory that regulates the relationships between employers and employees or provides for the prevention or settlement of disputes between employers and employees. As to the mechanism by which the two unions may have statutory liability as principals for Mr Primmer’s conduct, it may be, as the respondents submit, that s.826(2) duplicates s.779(2) in a fashion requiring the more specific of the two provisions to take precedence over the more general of the two, but I do not need to resolve this issue. The matter is of no practical significance because Mr Primmer’s conduct falls within both ss.779(2) and 826(2) with the consequence that it is thereby also the conduct of the CFMEU and the CFMEU (NSW). I therefore find in respect of each of the conversations quoted above at [9(b)] and [9(d)] that the CFMEU and the CFMEU (NSW) breached s.800(1)(a). In such circumstances I do not need to consider the respondents’ submissions concerning whether the unions might or might not also have common law liability as principals for Mr Primmer’s conduct in breach of the Act. Although both unions denied that the conduct alleged against Mr Primmer was within the scope of his actual or apparent authority as one of their officers and employees, the evidence satisfies me that the allegation is made out. The CFMEU obtained for Mr Primmer his permit under the Act to enter and inspect premises in which he is described as an employee of the New South Wales divisional branch of the CFMEU. The CFMEU(NSW) admitted that in his capacity as an authorised industrial officer of that union Mr Primmer held an authority to enter premises issued by the New South Wales Industrial Registrar pursuant to s.209 of the IRA. It also admitted that, during the period 1 January 2006 to 1 December 2006 Mr Primmer, in his capacity as an officer and/or employee of the CFMEU(NSW), performed tasks that involved:a)dealing with employers and employees;b)encouraging and assisting in employees to become or remain members of the CFMEU and/or CFMEU(NSW);c)checking union membership;d)ensuring compliance with industrial laws and instruments, including agreements and awards;e)checking wages and conditions under which workers were employed;f)ensuring employees received their entitlements under industrial laws and instruments;g)participating and dealing in industrial disputes;h)participating in proceedings under industrial laws; andi)pursuing claims for unpaid employee entitlements with employees.Given the interconnectedness of Mr Primmer’s positions in the state and federal unions, I infer that his role in the CFMEU involved the same or similar activities.