Alfred v Primmer & Ors (No.2)
[2008] FMCA 1476
•3 November 2008
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:
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.
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.
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.
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.
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.
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
The respondents’ application in a case filed on 7 April 2008 be refused.
The further hearing of the application be adjourned to 10:15am on a date to be fixed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1222 of 2007
| GREGORY CHARLES ALFRED |
Applicant
And
| PETER PRIMMER |
First Respondent
| CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION |
Second Respondent
| CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION (NSW BRANCH) |
Third Respondent
REASONS FOR JUDGMENT
Introduction
The applicant in these proceedings is an Australian Building and Construction Inspector. In his amended statement of claim he alleges that Mr Primmer, the first respondent; the Construction, Forestry, Mining and Energy Union (“CFMEU”), the second respondent; and the New South Wales Branch of that Union (“CFMEU(NSW)”), the third respondent, advised and encouraged Camarda & Cantrill Pty Ltd (“C&C”), a building and construction company, to prevent Fine Line Painting (Aust) Pty Ltd (“Fine Line”) from working on the second stage of the Kiama High School redevelopment project (“Project”) for a reason prohibited by s.793(1)(k) of the Workplace Relations Act 1996 (“Act”).
As well as denying the contraventions alleged, the respondents have also filed an application in a case seeking orders that the application be dismissed or, alternatively, stayed permanently as an abuse of process. The respondents argue that the reason relied upon by the applicant in alleging contraventions of the Act was not, in fact, a reason prohibited by s.793(1)(k) because it failed to satisfy a necessary criterion for the application of that paragraph.
For the reasons which follow, the applicant’s application will be granted in part and the respondents’ application in a case will be refused.
Background
The Project
In 2005 C&C were awarded a contract by the New South Wales Department of Commerce to manage, construct and build the Project. In August 2006 C&C awarded Fine Line a contract to do the painting work for the Project.
Earlier proceedings
Before Fine Line’s commencement of work at the Project it had become involved in proceedings in the New South Wales Industrial Relations Commission (“NSWIRC”) concerning its alleged non-payment of two days’ wages to one of its former apprentices. Prior to the commencement of those proceedings (“NSWIRC proceedings”), Mr Primmer had sent to Fine Line a request dated 7 April 2006 for a time and wage book inspection. He later sent Fine Line a formal reminder of that request. The first of those documents was on CFMEU stationery, Mr Primmer signing as “official”; the second document was on CFMEU(NSW) stationery with Mr Primmer signing as “state official”.
On 26 April 2006 the former employee had made a wage claim complaint to the CFMEU(NSW) and authorised it to act on his behalf to recover the wages he claimed. The CFMEU(NSW) commenced proceedings in the NSWIRC against Fine Line under s.130 of the Industrial Relations Act 1996 (NSW) (“IRA”) which provides:
130 Notification of industrial dispute to Commission
(1) Any of the following may notify the Commission of an industrial dispute for the purpose of resolving the dispute:
(a) an industrial organisation of employees or employers,
(b)an employer who is or is likely to be affected by the dispute,
(c)a person who is or is likely to be the subject of a secondary boycott in connection with the dispute,
(d a State peak council. …
The dispute notification in the NSWIRC described the matters in issue as:
1. Failure to provide access to time and wage records.
2. Suspected award breaches in relation to member.
The notification identified “Peter Primmer State Organiser” as one of the persons to contact on behalf of the notifier. Those NSWIRC proceedings were subsequently discontinued by the CFMEU(NSW) on or about 26 September 2006.
Mr Primmer and the Project
Although they will be considered in more detail below, it is useful at this point to set out in broad terms the relevant events related to the Project which the parties allege occurred in September and October 2006:
a)on 14 September 2006 Mr Primmer spoke to C&C’s contract manager, Paul Gurr, saying that Fine Line was not to be engaged. This alleged conversation is no longer relied on by the applicant;
b)the parties agree that on 12 October 2006 Mr Primmer attended the Project site and, in the company of either or both Messrs Thomas and Mr Ian Kennedy of C&C, conducted a safety walk during which he identified a number of matters he said were of concern to him and which resulted in him issuing a rectification notice to C&C; and
c)while the parties agree that Mr Primmer returned to the Project site on 18 October 2006 to collect a copy of Fine Line’s safe work method statement (“SWMS”), Mr Primmer also alleges that he conducted a second safety walk and took a number of photographs at that time.
The allegations
It is alleged that:
a)on 14 September 2006 Mr Primmer spoke with C&C’s contract manager, Paul Gurr, and said that C&C was not to engage Fine Line as the painters on the Project. This allegation is no longer pressed;
b)on 12 October 2006 Mr Primmer spoke to C&C’s site foreman, Mr Thomas, and said that C&C had to stop Fine Line from continuing to work as the painters on the Project as Fine Line was involved in court proceedings over unpaid wages. In his affidavit affirmed 24 April 2007 Mr Thomas deposes to the following conversation having taken place between him and Mr Primmer after the safety walk had been completed:
Primmer:Fineline Painting have no affiliation with the CFMEU and it looks as though Camarda & Cantrill don’t either. Norm Mogg has court proceedings against him for not paying an apprentice for two days wages and therefore should not have a contract on a government job. The project will be stopped.
Thomas: For how long, do you think?
Primmer: It could be weeks and cost thousands of dollars. Norm Mogg will bring the Taskforce in.
Thomas: And what’s their position with all this?
Primmer:The Taskforce was set up by Johnny Howard to prevent the unions shutting down building sites without good reason. Fineline Painting, Camarda & Cantrill and the CFMEU, you and him (pointing Ian [Kennedy] and me) will be in court proceedings at a great cost to Fineline Painting and Camarda & Cantrill. OK, you will have to stop the painters.
Thomas:I don’t know that it is my position to stop the painters.
c)on 12 October 2006 Mr Primmer said to Mr Thomas that he, Primmer, would organise or take industrial action against C&C with the intent of coercing it to stop Fine Line continuing to work on the Project as Fine Line was involved in court proceedings over unpaid wages. In support of this allegation reliance is placed on the conversation quoted at [9(b)] above; and
d)on 12 October 2006 Mr Primmer had a conversation with C&C’s occupational health and safety and quality assurance officer, Ian Kennedy, during which he implied that if C&C did not cease using Fine Line as the painters on the Project the local media would be informed that C&C were using subcontractors who were involved in proceedings before the courts over unpaid wages. In support of this allegation, reliance is placed on the following conversation which Mr Ian Kennedy deposes to having had with Mr Primmer at the conclusion of the latter’s visit to the Project site on 12 October 2006:
Primmer:What are we going to do about Fineline working on a government site with a pending wage case?
Kennedy:Thomas is on the phone with Peter Camarda, Norm Mogg and Justin Kennedy to see what we need to do about the issue. We’ll have to wait for the outcome of those conversations before we do anything else.
Primmer:If the local papers found out that Camarda & Cantrill were using shonky subcontractors who did not pay their apprentices, it wouldn’t look good for Camarda.
Kennedy: Well, we’ll have to wait and see what the outcomes of the phone calls are.
It is alleged that had C&C acted on Mr Primmer’s suggestions, it would have been acting for a reason prohibited by s.793(1)(k) of the Act and therefore would have breached s.792(5).
It is alleged that Mr Primmer’s alleged conduct contravened s.800(1)(a) and (b) of the Act. It is further alleged that as his conduct was that of an officer and agent of the CFMEU and the CFMEU(NSW) and that he was acting in those capacities, the CFMEU and the CFMEU(NSW) are liable vicariously and as principals for that conduct and thus they also contravened s.800(1)(a) and (b) of the Act.
Legislation
Section 792(5) of the Act provides:
(5) A person must not, for a prohibited reason, or for reasons that include a prohibited reason, do or threaten to do any of the following:
(a) terminate a contract for services that he or she has entered into with an independent contractor;
(b) injure the independent contractor in relation to the terms and conditions of the contract for services;
(c) alter the position of the independent contractor to the independent contractor’s prejudice;
(d) refuse to engage another person as an independent contractor;
(e) ....
The prohibited reasons referred to in s.792(5) are set out in s.793(1) of the Act. Section 793(1)(k) provides:
793 Prohibited reasons
(1) Conduct referred to in subsection 792(1) or (5) is for a prohibited reason if it is carried out because the employee, independent contractor or other person concerned:
…
(k) has participated in, proposes to participate in or has at any time proposed to participate in a proceeding under an industrial law; …
Section 800 of the Act provides:
(1) An industrial association, or an officer or member of an industrial association, must not:
(a) advise, encourage or incite a person; or
(b) organise or take, or threaten to organise or take, industrial action against a person with intent to coerce the person;
to take action in relation to another person that would, if taken, contravene subsection 792(5).
(2) Subsection (1) is a civil remedy provision.
Section 779(2)(b) of the Act provides:
(2)For the purposes of this Part, the following conduct is taken to be conduct of an industrial association:
(a) …
(b) conduct of an officer or agent of the industrial association acting in that capacity;
Section 826(2) of the Act provides:
(2)Any conduct engaged in on behalf of a body corporate by:
(a)an officer, director, employee or agent of the body corporate within the scope of his or her actual or apparent authority; or
(b) …
shall be taken, for the purposes of this Act or the BCII Act (as the case requires), to have been engaged in also by the body corporate.
Section 809 of the Act provides:
(1) If:
(a)in an application under section 807 relating to a person's conduct, it is alleged that the conduct was, or is being, carried out for a particular reason or with a particular intent; and
(b)for the person to carry out the conduct for that reason or with that intent would constitute a contravention of this Part;
it is presumed, in proceedings under this Division arising from the application, that the conduct was, or is being, carried out for that reason or with that intent, unless the person proves otherwise.
(2)This section does not apply in relation to the granting of an interim injunction.
Section 807 provides for the penalties which may be imposed for contraventions of civil remedy provisions such as s.800.
Orders sought
The applicant no longer seeks declarations or civil penalties in relation to the first alleged contravention.
As to the second alleged contravention, which relates to the earlier events on 12 October 2006, the applicant seeks the following:
a)as against Mr Primmer:
i)a declaration that on 12 October 2006 at Kiama between 8.00am and 11.00am he contravened s.800(1)(a) of the Act by advising and encouraging C&C to take action in relation to Fine Line that would, if taken have contravened s.792(5); and
ii)an order under s.807(1)(a) imposing a pecuniary penalty for contravention of s.800(1)(a) of the Act on 12 October 2006 at Kiama between 8.00am and 11.00am;
b)as against the CFMEU:
i)a declaration that on 12 October 2006 at Kiama between 8.00am and 11.00am it contravened s.800(1)(a) of the Act, by reason of the conduct of Mr Primmer who was its officer, employee and agent acting in that capacity, by advising and encouraging C&C to take action in relation to Fine Line that would, if taken, have contravened s.792(5); and
ii)an order under s.807(1)(a) imposing a pecuniary penalty for contravention of s.800(1)(a) of the Act on 12 October 2006 at Kiama between 8.00am and 11.00am; and
c)as against the CFMEU(NSW):
i)a declaration that on 12 October 2006 at Kiama between 8.00am and 11.00am it contravened s.800(1)(a) of the Act, by reason of the conduct of Mr Primmer who was its officer, employee and agent acting in that capacity, by advising and encouraging C&C to take action in relation to Fine Line that would, if taken, have contravened s.792(5); and
ii)an order under s.807(1)(a) imposing a pecuniary penalty for contravention of s.800(1)(a) on 12 October 2006 at Kiama between 8.00am and 11.00am;
As to the third alleged contravention, which also relates to the earlier events on 12 October 2006, the applicant seeks the following declarations and orders in the alternative to the declarations and orders sought and referred to above at [20]:
a)as against Mr Primmer:
i)a declaration that on 12 October 2006 at Kiama between 8.00am and 11.00am he contravened s.800(1)(b) of the Act by threatening to organise or take industrial action against C&C with intent to coerce C&C to take action in relation to Fine Line that would, if taken, have contravened s.792(5); and
ii)an order under s.807(1)(a) imposing a pecuniary penalty for contravention of s.800(1)(b) of the Act on 12 October 2006 at Kiama between 8.00am and 11.00am;
b)as against the CFMEU:
i)a declaration that on 12 October 2006 at Kiama between 8.00am and 11.00am it contravened s.800(1)(b) of the Act, by reason of the conduct of Mr Primmer who was its officer, employee and agent acting in that capacity, by threatening to organise or take industrial action against C&C with intent to coerce C&C to take action in relation to Fine Line that would, if taken, have contravened s.792(5); and
ii)an order under s.807(1)(a) imposing a pecuniary for a contravention of s.800(1)(b) of the Act on 12 October 2006 at Kiama between 8.00am and 11.00am; and
c)as against the CFMEU(NSW):
i)a declaration that on 12 October 2006 at Kiama between 8.00am and 11.00am it contravened s.800(1)(b) of the Act, by reason of the conduct of Mr Primmer who was its officer, employee and agent acting in that capacity, by threatening to organise or take industrial action against C&C with intent to coerce C&C to take action in relation to Fine Line that would, if taken, have contravened s.792(5); and
ii)an order under s.807(1)(a) imposing a pecuniary penalty for a contravention of s.800(1)(b) on 12 October 2006 at Kiama between 8.00am and 11.00am.
In relation to the fourth alleged contravention, which relates to the later events on 12 October 2006, the applicant seeks the following:
a)as against Mr Primmer,
i)a declaration that on 12 October 2006 at Kiama between 11.00am and 12.00pm he contravened s.800(1)(a) of the Act, by advising and encouraging C&C to take action in relation to Fine Line that would, if taken, have contravened s.792(5) of the Act; and
ii)an order under s.807(1)(a) imposing a pecuniary penalty for a contravention of s.800(1)(a) of the Act on 12 October 2006 at Kiama between 11.00am and 12.00pm;
b)as against the CFMEU,
i)a declaration that on 12 October 2006 at Kiama between 11.00am and 12.00pm it contravened s.800(1)(a) of the Act, by reason of the conduct of Mr Primmer; and
ii)an order under s.807(1)(a) imposing a pecuniary penalty for a contravention of s.800(1)(a) of the Act on 12 October 2006 at Kiama between 11.00am and 12.00pm;
c)as against the CFMEU(NSW),
i)a declaration that on 12 October 2006 at Kiama between 11.00am and 12.00pm it contravened s.800(1)(a) of the Act, by reason of the conduct of Mr Primmer; and
ii)an order under s.807(1)(a) imposing a pecuniary penalty for a contravention of s.800(1)(a) of the Act on 12 October 2006 at Kiama between 11.00am and 12.00pm.
The evidence
Mr Primmer disputes having used, in the conversations of 14 September 2006 and 12 October 2006, the words attributed to him set out above at [9]. As the allegations referred to at [9(a)] above are no longer pressed, it is necessary only to consider whether Mr Primmer spoke the words quoted above at [9(b)] and [9(d)]. The witnesses’ allegations concerning these conversations are best considered in the context of their various and differing accounts of the events on 12 and 18 October 2006.
Applicant’s evidence
Glenn Thomas
In his affidavit affirmed 24 April 2007 Mr Thomas deposes to having met Mr Primmer for the first time in early August 2006 at which time, amongst other things, Mr Primmer is said to have said:
Primmer: Who are the painters?
Mr Thomas: I don’t know if that contract has been let yet.
Primmer:Fineline are out, I have a few issues with them and they are not affiliated with the union. I won’t go around the job or anything, I’ll leave you alone to get on with it, I’ll see you later.
Mr Thomas deposes that on 12 October 2006 he was sitting at his desk in the site office when Mr Primmer, wearing a CFMEU shirt, entered and the two men had a conversation to the following effect:
Primmer: Who are you?
Mr Thomas: Glenn Thomas and you’re Peter.
Primmer:Come on, we’ll go for a safety walk. You better grab a note pad and a pen.
They then went on a walk around the Project site. The first places they visited were the employees’ crib room and toilets. Mr Primmer objected to the condition of the crib room and toilets, following which he wrapped red danger tape around their door handles, saying that no one was to use them until they were cleaned and the crib room’s residual current device (“RCD”) inspection tag updated. They then went out onto the building site and, using scaffold stairs, visited the structure’s various floors. During this inspection, Mr Primmer had conversations with Fine Line painters.
At the end of the safety walk, Messrs Primmer, Thomas and Ian Kennedy returned to the site office where Mr Primmer checked the electrical leads behind the desk. Mr Thomas says that Mr Primmer unplugged the printer and fax machine leads from the power board and unplugged the power board itself saying that it “does not comply”. He then asked for Fine Line’s SWMS but Mr Thomas could not find it. Mr Thomas says that he was surprised by this as he had put the signed copy of the SWMS in a particular folder when the painters commenced work on the site. All that Messrs Thomas and Ian Kennedy could find was an unsigned copy of the SWMS which they handed to Mr Primmer. Mr Thomas deposes that at that point Mr Primmer went to Fine Line’s storage container located elsewhere on the site where he spoke to Mr Norrie, Fine Line’s painting supervisor for the Project. Mr Primmer then returned to the site office at which point, Mr Thomas deposes, the conversation set out above at [9(b)] occurred.
Mr Thomas says that Mr Primmer then asked for the phone number for Mr Justin Kennedy, the NSW Department of Commerce Project Manager for the Project. In this connection, Mr Thomas deposes as follows:
Primmer then appeared to call Justin. I was near Primmer when he made a call. I heard him say words to the effect “Justin, it is Peter Primmer”. I heard Primmer complain about Mogg not paying an apprentice for two day’s work and Mogg had court proceedings against him and that Fineline should not be working on a government project. I heard Primmer say to Justin:
“What are you going to do about it?”
Mr Thomas also says that shortly after Mr Primmer ended his conversation with Mr Justin Kennedy, the latter telephoned and a conversation to the following effect took place:
J.Kennedy: Glenn, what are you going to do about this situation with Norm Mogg not paying this apprentice for two day’s pay as it looks a [sic] though he has court proceedings against him and that’s not going to look good for any of us.
Thomas:Well, I don’t know Justin. What do you do in this sort of situation? I think all I can do now is to get into contact with Norm Mogg to see what he and everyone else here can come up with the right decision, and maybe you too.
J.Kennedy: Ok then, but I think you probably need to get them off site.
Thomas:We’ll see.
J. Kennedy: Oh well, best of luck.
Mr Thomas deposes that after speaking to Mr Justin Kennedy, and then to Mr Norrie, to Mr Mogg of Fine Line painting and to Peter Camarda, C&C’s project manager, he saw Mr Primmer getting into his car with Mr Ian Kennedy standing next to the car.
Turning to the events of 18 October 2006, in his oral evidence Mr Thomas said that he saw Mr Primmer again on 18 October 2006 although the duration of their meeting would have been no more than ten minutes. He denied the proposition that Mr Primmer conducted a further site inspection that day and further said that he could not recall Mr Primmer taking photographs during that visit. Although Mr Thomas recalled photographs being taken by Mr Primmer on 12 October 2006 he did not believe that any had been taken on that next occasion. Indeed, Mr Thomas’s evidence was that on 18 October 2006, as far as Mr Primmer was concerned “everything was okay” and that all the matters contained in the rectification notice dated 12 October 2006 sent by Mr Primmer to C&C had been rectified or addressed by 13 October 2006 at the latest.
As support for the accuracy of his recollection, Mr Thomas referred to a summary of the events on 12 October 2006 which he wrote once
Mr Primmer had left the Project site. That note reflects the contents of Mr Thomas’s affidavit. This contemporaneous quality is confirmed by his evidence, which I accept, that he gave a copy of the summary to Mr Mogg of Fine Line not long after Mr Primmer had left the site.
Mr Thomas also deposes that later on 12 October 2006 he wrote a more detailed note about what had happened on the site that day. Included in that note are references to:
a)Mr Thomas having met Mr Primmer approximately two months prior to 12 October 2006;
b)Mr Primmer saying:
i)that Mr Mogg had court proceedings against him for not paying an apprentice two days’ wages and therefore should not have a contract on a government job;
ii)that the Project would be stopped;
iii)that the stoppage could last weeks and costs thousands of dollars; and
iv)that Norm Mogg would “have the taskforce here crawling all over the site and will delay works proceeding at a big cost”;
c)Mr Primmer discussing the issue with Mr Justin Kennedy;
d)Mr Justin Kennedy telephoning Mr Thomas recommending he address the fact that Fine Line had outstanding court proceedings and that Mr Thomas should probably prevent Fine Line from proceeding with their work and be removed from the Project site;
e)Mr Primmer walking to his car on site, Mr Ian Kennedy seeing him off.
Ian Kennedy
Mr Kennedy was at the Project site on 12 October 2006 when Mr Primmer arrived wearing a shirt with a CFMEU logo on it. Mr Kennedy accompanied Messrs Primmer and Thomas on the safety walk for part of its duration. On occasion he would step away to arrange for attention to be given to the issues raised by Mr Primmer during the course of the walk.
Mr Kennedy deposes that following the safety walk, and after Mr Primmer’s request for Fine Line’s SWMS and his visit to the Fine Line painters at their container, Mr Primmer returned to the site office at which time he said words to the effect of:
Norm Mogg has an outstanding wage claim against him. Norm hasn’t paid an apprentice for two day’s pay and because of that, there’s an outstanding court case against him. He’s got all his guys on AWAs and he pays his workers less than other painters. Fineline shouldn’t be engaged on a government building project whilst a wage claim is pending or Camarda & Cantrill can lose their contract with the government. Fineline is trying to cut costs by using ladders rather than supplying scaffolding.
Mr Kennedy also deposes to having had a conversation with Mr Primmer as the latter was leaving the site in terms of the conversation set out above at [9(d)].
In cross examination Mr Kennedy repeated his recollection that at least on one occasion during the safety walk Mr Primmer removed an extension lead plugged into a power box. He recalled that the monthly tagging was one day out of date. He also recalled that, at the conclusion of the safety walk, as he returned to the site office with Mr Primmer, they passed the crib room where a person was sweeping it out and electricians were already tagging the RCDs.
Mr Kennedy gave evidence that after he and Messrs Thomas and Primmer had returned to the site office, Mr Primmer said that a small domestic power board which was being used was illegal and should not have been on site, indicating that C&C should get “one of the orange boxes with earth leakage and fix the problem”. Mr Primmer then disconnected the fax machine and the photocopier from the power board.
Mr Kennedy recalled that Mr Primmer was concerned to record that it was Mr Kennedy who made the decision to stop the painters working and that it was not Mr Primmer who had done this.
Mr Kennedy deposed that immediately after Messrs Primmer and Mogg had left the site on 12 October 2006 he made notes of what occurred that day. In those notes, Mr Kennedy referred to:
a)the existence of a court case involving Fine Line relating to two days’ pay allegedly owed to an apprentice;
b)Mr Primmer saying:
i)that Fine Line should therefore not have been engaged on a government site;
ii)that he expected Mr Mogg to contact the “taskforce” which would result in C&C personnel being tied up in inquiries and court cases for weeks; and
iii)that it would not look good for C&C if the papers ran a story about a builder using “shonky” subcontractors who did not pay their apprentices.
Norman Mogg
Mr Mogg is a director of Fine Line and affirmed an affidavit on 20 April 2007. He deposed that on 26 April 2006 the CFMEU(NSW) commenced the NSWIRC proceedings but that they were subsequently discontinued on or about 26 September 2006. He further deposed that on 12 October 2006 he received a telephone call from Scott Norrie, Fine Line’s painting supervisor for the Project, who told him that Mr Primmer was on-site and had said that the Fine Line painters had to stop work because they were not allowed to stand on step ladders as the company’s SWMS did not cover ladders. As the original of Fine Line’s SWMS, which had been signed by Fine Line’s painters at the commencement of the job, could not be located on 12 October 2006, Mr Mogg attended the site with a second version of the statement amended by adding an additional sentence concerning the use of ladders. At the time he handed that documentation, together with other documents, to Mr Thomas, the latter provided him with a document on a facsimile header sheet which the latter had signed recording details of Mr Primmer’s attendance on-site that day.
Mr Mogg gave evidence of an entry made in his electronic diary at 3.30pm on 12 October 2006. In that note Mr Mogg records a conversation with Peter Camarda where the following passage appears:
PC:Norm I know what has been going on at the site, Primmer says we can’t have you or your men on site because you have a court case pending over the refusal of two days pay for an apprentice, is this correct.
NM:This is not correct Peter, I have had a dispute with the CFMEU and they have withdrawn there [sic] complaint. I then went on to advise PC of the dispute details of which can be given if required.
PC:He’s after you isn’t he, can you give us a copy of the CFMEU’s discontinuance. We have to demonstrate to the department of commerce that we are complying with our responsibilities.
NM:Okay, I am going to site in about 1.5 hours I will give it to IK on site for you. Peter I need to take a stand against Primmer, he is out to make my life hard.
PC:I know, Primmer told us he did not want you to be used on this site…
Mr Mogg’s electronic diary note also records that he spoke later that day to Messrs Thomas and Ian Kennedy who “confirmed Primmer’s comments about not having Fine Line painting on site”.
Scott Norrie
In his affidavit affirmed 20 April 2007 Scott Norrie, Fine Line’s painting supervisor, said that he was on-site on 12 October 2006 when Mr Primmer visited the site. He remembered Mr Primmer wearing a shirt with a CFMEU logo and a hard hat with CFMEU stickers. He spoke to Mr Primmer during the course of the safety walk.
Not long after the safety walk had concluded and Fine Line’s SWMS could not be found in the site office, Mr Ian Kennedy told Mr Norrie that the Fine Line painters would have to stop work, saying:
You are going to have to stop working on the ladders until we have resolved this.
In cross-examination, Mr Norrie agreed that when Mr Primmer came to the Fine Line site shed on 12 October 2006 he asked the Fine Line painters if they had signed off on the SWMS. When it was put to him that at least some of the workers had said that they had not, Mr Norrie replied:
Not from memory, because they’d all signed it.
He disagreed with the proposition that some of the workers had said that they had not read the SWMS. He explained his confidence on the point by saying that at the commencement of Fine Line’s involvement with the Project, they were short of work so all the painters went to that job and “at the start we all went there and signed on the first work method statement.” In other respects, his recollection of events involving him broadly coincided with Mr Primmer’s which is set out later in these reasons.
Gregory Alfred
In cross-examination Mr Alfred was asked whether he had told Mr Thomas on 18 October 2006 that he should not give to Mr Primmer a copy of Fine Line’s SWMS. He denied that proposition “absolutely”. He also said that he had advised Mr Thomas that Mr Primmer was entitled to inspect the SWMS and he advised on Mr Primmer’s right of entry and Mr Thomas’s right to inspect Mr Primmer’s right of entry permits.
Justin Kennedy
Mr Kennedy was the NSW Department of Commerce officer responsible for the administration of the Project for the Department of Education. He deposed that on 12 October 2006 he received a phone call from Mr Primmer to the effect of:
Primmer:Hi, Justin, it’s Peter Primmer here from the CFMEU. Are you in charge of the project at Kiama High School?
J. Kennedy: Yes I am.
Primmer:Are you aware that the painting subcontractor on site owes an apprentice two day’s pay?
J.Kennedy: No, I’m not. This kind of issue is the responsibility for Camarda and Cantrill as per our contract with them.
Primmer:That may be so but that is your site and it is still your job to ensure that the subcontractors are adhering to their industrial relations requirements. You may or may not be aware that this contractor is involved in an existing court case. Why is this contractor being used by Camarda and Cantrill? That same subcontractor is working on the site without a Safe Work Method Statement.
J.Kennedy: That is also the responsibility of Camarda and Cantrill.
Primmer:I’ve also had a walk around the site and found a number of safety issues that needs to be rectified.
J. Kennedy: Can you tell me what they are?
Mr Kennedy also deposes that, after the conversation with Mr Primmer, he telephoned both Mr Thomas and Mr Gurr, C&C’s project manager, raising the unpaid wages and safety issues which Mr Primmer had raised with him.
Mr Kennedy spoke to Mr Primmer again on 18 October 2006 when they met by chance at the Project site. Mr Kennedy deposed that during that conversation, Mr Primmer said:
I’m here checking on some paper work. I’d like to arrange a meeting with you and Ashok later today to discuss Commerce’s view on how the IR laws should be implemented and also how this apprenticeship issue is being handled. I will be in court Thursday and Friday so I won’t be available then. I want to talk about what Commerce’s opinion is on the implementation of industrial relation laws and why this contractor should be allowed to work on this site given the circumstances.
In cross-examination Mr Kennedy agreed that during their conversation Mr Primmer had said to him that there were “planks lying on the bottom of the scaffold”.
Respondents’ evidence
Peter Primmer
Mr Primmer swore an affidavit on 24 September 2008. In that affidavit, he deposed that:
a)he did not visit the Project site in early August 2006 as alleged by Mr Thomas nor did he have any conversations with Mr Thomas or with any site foreman in August or September 2006. In particular, he denied saying:
Fine Line are out, I have a few issues with them and they are not affiliated with the union.
b)on 6 August 2006, while at another site, a worker suggested he should check the Project site saying:
The scaffolding is still shit and there are painters working off ladders and drums.
c)he attended the Project on 12 October 2006 and the first person he saw was Mr Ian Kennedy, who was known to him as a C&C occupational health and safety manager. The next person he encountered was Mr Thomas whom he had not previously met;
d)after speaking to Messrs Ian Kennedy and Thomas in the site office they all then went out onto the site for a safety walk and the first place they stopped was the crib room next to the site office. Mr Primmer complained that the electrical tagging on the main power board in the crib room and toilets was out-of-date, that the crib room refrigerator was dirty and the toilet area was filthy;
e)Mr Primmer then went to his car and took out a roll of red hazard tape which he placed around the entrances to the crib room and toilets saying that the rooms could not be used until the problems he says he identified were fixed;
f)from there Messrs Primmer and Thomas went to the base of the scaffolding at the southwest corner of the site where formwork planks were lying on the scaffold frame, resting against the scaffold. Mr Primmer says that Mr Thomas said that these issues would be fixed up;
g)Messrs Primmer and Thomas then walked to the ground floor where carpenters were working. Mr Primmer checked the power supply box and noted that its tags were out of date. He denied pulling the power cord from the wall socket;
h)from there Messrs Primmer and Thomas walked up the steps to the scaffold, Mr Primmer concluding that the step-up from the scaffold to the first floor was too great at approximately two feet or six hundred millimetres. He asserted that a hop-up step and a warning sign were required;
i)Messrs Primmer and Thomas then walked along the first corridor to where three or four painters were working. Mr Primmer observed a painter standing on what looked like a twenty litre paint drum while painting the ceiling wall and another painter on a step ladder but not observing the “three points of contact” requirement. Mr Primmer asked Mr Norrie about the “three points of contact” rule and asked whether the painters should not have been using a mobile scaffold;
j)Messrs Primmer and Thomas then left the classroom, went through the kiln room and entered another classroom where two painters were working from step ladders, one of whom was steadying himself by putting his hand on a ceiling bulkhead rather than on the ladder. Mr Primmer says that he asked the painter whether he had had three points of contact when doing the work he was just seen performing to which the painter replied he did not know whether he did or did not;
k)Messrs Primmer and Thomas then walked towards the scaffold stairs where Mr Primmer observed another temporary power supply box and found that the monthly tagging was out of date. He denies disconnecting the cord from the power socket;
l)from there Messrs Primmer and Thomas went to the top level of the building by means of the scaffold stairway where Mr Primmer observed another step-up to the concrete slab of about two feet or six hundred millimetres. Mr Primmer expressed the view that this step was also too high;
m)from the second floor Messrs Primmer and Thomas returned to the site office and walked past the crib room in respect of which Mr Primmer made further critical comments. Mr Primmer says that by this time it was about 9am;
n)upon return to the site office Mr Primmer inspected the electrical leads behind the desk and found that the printer and fax machine power leads were connected to a small domestic power board. He stated that this was illegal, should not have been on the site and that an orange box with earth leakage ought to have been used instead. Mr Primmer denied unplugging the power board from the wall socket. He then asked for a copy of Fine Line’s SWMS. The one which was provided to him by Mr Kennedy did not have the signatures of Mr Mogg or any Fine Line employees. Mr Primmer also noted that two of the occupational health and safety induction and training cards attached to the SWMS were out of date. Mr Primmer says that he said to Mr Ian Kennedy words to the effect of:
This is not signed by anybody. It seems the employees have not been through the safe work methods statement and two of the cards are out of date, but even in this unsigned safe work methods statement it says that in painting ceilings and walls, mobile scaffolding will be required in high areas. We’d better talk to the workers of Fine Line about this. You coming with me?
o)from there Messrs Primmer and Thomas went to where the painters were sitting around on their crib break in the Fine Line storage container. Mr Primmer says that all the painters with the exception of Mr Norrie said that they had not seen the SWMS or signed it. Mr Primmer deposed that he could not recall whether Mr Norrie said anything in response to this query. Mr Thomas had left the storage container after Mr Primmer began to speak to the painters;
p)Mr Primmer then returned to the site office. He deposes that during the course of a conversation with Mr Ian Kennedy which ensued in the site office, the latter said that he would stop the painters from working until the SWMS was fixed up and the problems rectified. To this Mr Primmer replied:
As long as you realise that I haven’t, you have, stopped them, and not me.
q)Mr Primmer then asked for the material safety data sheet report, which set out the manner in which toxic materials such as paint were to be used and stored. That document was not on site. Mr Primmer then obtained from Mr Ian Kennedy the identity and contact details of Mr Justin Kennedy as the New South Wales Department of Commerce project officer for the Project. Mr Primmer telephoned Mr Justin Kennedy and says that he said words to the effect of:
Justin, I have found a few problems on this site. The crib rooms are filthy and the electrics are untagged. There are planks lying at the bottom of the scaffold, the step-up in the scaffold needs another step for access to the second floor, the painters are working off 20-litre drums and ladders and the work method statement clearly says that scaffold is to be used in high areas. Also the OH&S Induction Cards don’t comply. Also, are you aware that Fine Line Painting has an outstanding wage claim against an apprentice whose child has dysplasia, that he took to a specialist and Norm Mogg won’t pay for it?
r)Mr Primmer then left the vicinity of the site shed saying to Messrs Ian Kennedy and Thomas words to the following effect:
Norm Mogg has a hotline to the ABCC. I’ll see you in court because this will be tied up for weeks, because this is where it will go to. A lot of solicitors and QC’s will make a lot of money out of this.
s)he denied that either Messrs Ian Kennedy or Thomas followed him to his car and he said any additional things to them or them to him.
Mr Primmer deposes that he returned to the site on 18 October 2006 at which time Mr Thomas initially refused to provide him with a copy of the SWMS that had been on site on 12 October 2006. He deposes that Mr Thomas spoke to Mr Alfred, the applicant, who told Mr Thomas not to supply a copy of the SWMS. Mr Primmer says that it was only after he had Mr Thomas speak to an officer of the New South Wales WorkCover Authority that Mr Thomas agreed to supply Mr Primmer with a copy of the statement. In fact, Mr Primmer says, Mr Thomas provided him with a copy of the first SWMS as well as a copy of the newer one.
Mr Primmer deposes that he then went on a site inspection during which he says he took photographs. He started with the room outside Mr Thomas’s office which he described as a crib room and where he observed tools and materials stored, in his view contrary to the code of practice on amenities. Thereafter:
a)Messrs Primmer and Thomas went to the subcontractor’s crib room which Mr Primmer observed to be clean and with an appropriately tagged power board;
b)they then proceeded to a scaffold on the western end of the site where planks, ladders and other materials were stored under the scaffold and raw materials and debris were also found under the scaffold. Mr Primmer records Mr Thomas as saying that he would attend to these matters;
c)Messrs Primmer and Thomas then moved to the bottom of the scaffold stairwell where Mr Primmer found what he describes as a makeshift ramp constructed of two planks and a piece of plywood which he said to Mr Thomas did not provide sufficient access to comply with occupational health and safety requirements. Mr Primmer records Mr Thomas saying that he would get it fixed;
d)Messrs Primmer and Thomas then went up the scaffold stairs between the ground and the first floor where Mr Primmer again raised the issue that the step-up from the deck to the beginning of the concrete was too high and in need of a step-up. Mr Primmer records Mr Thomas saying that the scaffolding contractors had advised that the step-up was acceptable; and
e)Mr Primmer then walked along the deck on the first floor where Fine Line painters had been working on the previous occasion but they were not there on 18 October 2006. He records that at that point he said to Mr Thomas that he wanted the issues he had raised that day and photographed to be fixed as they were supposed to have been fixed on 12 October 2006. Mr Primmer records Mr Thomas as replying that he would get them done.
Mr Primmer deposed that the site visit on 18 October 2006 took about an hour at most. Shortly afterwards he took annual leave and does not recall any further involvement “about these issues” with C&C or Fine Line.
Mr Primmer agrees that he met Mr Justin Kennedy on the site on 18 October 2006 and that the conversation deposed to in Mr Justin Kennedy’s affidavit occurred to the effect set out in Mr Kennedy’s affidavit.
In his affidavit Mr Primmer specifically denied a number of matters which had been included in the other witnesses’ affidavits, namely:
a)that he had asked Mr Ian Kennedy what he was going to do about the absence of an SWMS and Fine Line’s use of step ladders rather than scaffolding;
b)that he said the words quoted above at [9];
c)that Mr Ian Kennedy came down to his car and had the conversation quoted above at [9(d)]; and
d)that he said to Mr Thomas words to the effect of the first paragraph quoted above at [9(b)] or the subsequent words “Ok, you will have to stop the painters”.
In cross-examination, Mr Primmer was taken to permits to enter and inspect premises issued to him under the Act as an employee of the New South Wales divisional branch of the CFMEU. He agreed that although he used his state occupational health and safety right of entry to visit worksites, on occasion he had had to show his federal permit to builders and companies when he visited sites because they had asked for it. He also accepted that in 2004 he had been elected to the position of divisional branch organiser in the New South Wales divisional branch of the CFMEU for a four-year term. Even so, his evidence was that he was employed by the CFMEU(NSW). Mr Primmer’s evidence also was that when visiting building sites he held himself out as representing “the CFMEU” without making a distinction between the New South Wales union (CFMEU(NSW)) or the New South Wales divisional branch of the federal union (CFMEU).
Mr Primmer annexed to his affidavit copies of his notebook entries for 12 and 18 October 2006 which related to his visits to the Project site. In a note relating to the events of 12 October 2006 Mr Primmer refers to untagged power sources, a dirty crib room and toilets, stands not secured and untagged, a 535mm step-up from the scaffold, painters working off a 20 litre drum and ladders, material laid over the base of the scaffold, Ian Kennedy telling the painters to stop work and noting that it was not Mr Primmer who gave this instruction. Mr Primmer’s note of the events on 18 October 2006 records Mr Thomas’s conversation with Mr Alfred to the effect that Mr Thomas was not to give Mr Primmer a copy of Fine Line’s SWMS and:
Return to site on 18-10-06 to get copy of WMS which Ian Kennedy said he would fax to my office on the 12-10-06 but didn’t.
Mr Primmer said that the notebook recorded matters of importance or relevance. Mr Primmer conceded that the sole purpose for his visit on 18 October 2006, as recorded in his notebook, was to get a copy of the SWMS which had not been faxed following the 12 October 2006 visit. He also conceded that the notebook contains no reference to what he alleges was the other purpose of the visit, namely to make sure that the safety issues which he had raised on 12 October 2006 had been rectified. He also agreed that the notebook entry for 18 October 2006 made no reference to the safety walk he alleges occurred on that occasion nor to any of the matters he alleges still required rectification and were depicted in his photographs. He agreed that his notebook entries for 12 October 2006 recorded that the step-up from the scaffold to the entrance of the building being constructed was 535mm, although no equivalent note appears in the 18 October 2006 entries and that the 535mm measurement recorded in his notebook on 12 October 2006 was identical to the measurement depicted in one of the photographs which he alleges was taken on 18 October 2006. He denied having his camera with him on site on 12 October 2006.
Mr Primmer agreed that on 18 October 2006 the step-up from the scaffold was in precisely the same condition in which he had seen it on 12 October 2006 and that he had concluded that nothing had been done about the issue. He also agreed that the photographs depicted a scene at the base of the scaffolding which he had identified on 12 October 2006 but which had not been attended to by 18 October 2006.
Mr Primmer’s evidence was that he did not speak to the scaffolders concerning the “step-up” issue and, indeed, that nothing was done by him after 18 October 2006 to ensure the rectification of the problem. Similarly, Mr Primmer agreed that after 18 October 2006 he did nothing to follow up rectification of the problem associated with materials being stored at the base of the scaffolding.
Notwithstanding that Mr Primmer’s visit to the site on 18 October 2006 was partly motivated by a desire to follow up the rectification notice he had issued earlier, he agreed that he had done nothing after 18 October 2006 to pursue the issues of continuing concern. Indeed, he agreed that he had not even issued a further rectification notice following the alleged safety walk of 18 October 2006.
Additionally, Mr Primmer agreed that during the conversation with Mr Justin Kennedy referred to above at [52(q)], in addition to that part of the conversation which he had included in his affidavit, he also said words to the effect of:
You may or may not be aware that this contractor is involved in an existing court case. Why is this contractor being used by Camarda and Cantrill?
Submissions
Applicant
Second alleged contravention
The applicant submitted that if it were accepted that Mr Primmer said the words to the effect of those set out in [9(b)] above, then it would have been established that he had contravened s.800(1)(a) of the Act on 12 October 2006 because in total it would have been proved:
a)that Mr Primmer was an officer and a member of the CFMEU and the CFMEU(NSW);
b)that C&C was the person who was advised or encouraged to engage in certain conduct;
c)that Fine Line was the person in relation to whom the action was advised or encouraged to be taken;
d)that the words used by Mr Primmer constituted advice or encouragement to C&C to take action against Fine Line;
e)that the action was to “stop” Fine Line;
f)that that action, if taken, would have contravened s.792(5) of the Act in that it would have been:
i)action of a character described in ss.792(5)(a), (b) or (c); and
ii)taken because Fine Line had participated in the NSWIRC proceedings which were a “proceeding under an industrial law” within the meaning of ss.793(1)(k) and 779 of the Act.
The applicant submitted that Mr Primmer’s conduct constituted encouragement or advice. It was submitted that what Mr Primmer was doing in the conversation quoted above at [9(b)] amounted to him advising or encouraging Mr Thomas to stop the painters because there was a pending court case against Fine Line involving allegations of unpaid wages, failing which the Project would be stopped; that the painters should not be on the Project because it was a government job and it would be stopped for weeks at a cost of thousands of dollars; and the “Taskforce” would be involved which would involve everyone in court proceedings also involving greater cost to C&C.
It was submitted that such conduct fell within s.792(5)(a), (b) or (c) with the relevant prohibited reason which would have motivated it being the reason identified in s.793(1)(k).
The third alleged contravention
The applicant submitted that the conduct in question also involved a contravention by the respondents of s.800(1)(b) in that by stating that “[t]he project will be stopped”, Mr Primmer was threatening to organise or take industrial action with intent to coerce C&C to “stop” Fine Line.
The fourth alleged contravention
The applicant submits that if it is accepted that Mr Primmer said words to the effect of those set out at [9(d)] above then the fourth allegation, that the respondents contravened s.800(1)(a) of the Act for a second time on 12 October 2006, will have been established.
The applicant submitted that the conversation Mr Primmer had with Mr Ian Kennedy, grounding the fourth alleged contravention, was properly to be understood in the context of the conversation which had preceded it and which in turn grounds the second and third alleged contraventions. It was submitted that the second conversation took its colour from the first and should be seen as part of a sequence of events, one following upon the other.
Unions’ statutory liability as principals
Building on the allegation of Mr Primmer’s culpability, the applicant submitted that his alleged contraventions should also be taken to be those of the CFMEU and the CFMEU(NSW) in that:
a)s.779(2)(b) of the Act deems his conduct to be that of the two unions because:
i)he was an officer of both unions and their agent; and
ii)there had been no suggestion that Mr Primmer engaged in his conduct on his own account or other than in his capacity as an officer or agent of the two unions; and
b)s.826(2)(a) of the Act operated to the same effect because:
i)Mr Primmer was an officer of both unions within the meaning of ss.4 and 826(2)(a) of the Act;
ii)he was an employee or agent of both unions within the meaning of s.826(2)(a);
iii)both the unions were bodies corporate; and
iv)by holding Mr Primmer out as an organiser and employee, both the unions clothed him with actual or apparent authority to conduct himself as he did.
Unions’ vicarious liability
Further, the applicant submitted that regard should be had to the extent to which the unions in their capacity as employers would be vicariously liable for the acts of their employee. The applicant alleged that Mr Primmer’s alleged conduct was within the scope of his actual or apparent authority as an officer and employee of each of the two unions and the unions were vicariously liable for it. In this connection, it was submitted that the two unions authorised Mr Primmer to represent them for the purposes of, amongst other things, recovering wages, representing the interests of employees and addressing questions of safety. As senior counsel for the applicant put it, Mr Primmer was authorised to represent the interests of the CFMEU in relation to its members in the greater Wollongong area and areas south of Wollongong, including the Project site and, even if he chose as a mode of performing his duties one which was unlawful, the CFMEU and the CFMEU(NSW) were nevertheless vicariously liable for that conduct: New South Wales v Lepore (2003) 212 CLR 511.
Respondents’ application in a case
The applicant did not contend that the NSWIRC had jurisdiction to hear and determine the NSWIRC proceedings which had been brought against Fine Line. His submission was that such a lack of jurisdiction did not deprive the NSWIRC proceedings of their character as a “proceeding under an industrial law” because those proceedings were expressly and regularly commenced by relying on s.130 of the IRA and the IRA met the test of an “industrial law” set out in s.779. The applicant submitted that the NSWIRC had power to determine its own jurisdiction in proceedings in which that jurisdiction was invoked and the fact that such proceedings might be dismissed for want of jurisdiction did not mean that they were a nullity.
Respondent
Application of s.800(1)
It is to be recalled that s.800(1) provides:
Industrial associations acting against independent contractors etc. to encourage contraventions
(1) An industrial association, or an officer or member of an industrial association, must not:
(a) advise, encourage or incite a person; or
(b)organise or take, or threaten to organise or take, industrial action against a person with intent to coerce the person;
to take action in relation to another person that would, if taken, contravene subsection 792(5).
The respondents submitted that where s.800 uses the term “a person” it means a natural person and does not include a corporation. The authorities to which the respondents refer, PG & LJ Smith Plant Hire Pty Ltd v Lanskey Constructions Pty Ltd (2004) 137 IR 98 and Hadgkiss v Construction, Forestry, Mining & Energy Union [2008] FCAFC 22, relate to different and former provisions of the Act and are of no assistance in construing s.800.
The respondents further submitted that for a contravention of s.800(1) to occur, the person invited to take action in relation to the third party had to be in a position to take such action in relation to that third party by, usually, being in a contractual relationship with that person: Hamberger v Construction Forestry Mining & Energy Union (2000) 104 IR 45. The respondents submitted that Messrs Thomas and Ian Kennedy were the subject of the alleged advice and encouragement but that there was really no evidence that they had any power to do anything about Fine Line in relation to the Project site. It was submitted that it would have only been Mr Camarda who would have had the power to deal with Fine Line in the manner in which it is alleged Mr Primmer wanted them dealt.
It was also submitted that there was no “injury” as defined in s.792(5) which provides:
(5)A person must not, for a prohibited reason, or for reasons that include a prohibited reason, do or threaten to do any of the following:
(a)terminate a contract for services that he or she has entered into with an independent contractor;
(b)injure the independent contractor in relation to the terms and conditions of the contract for services;
(c)alter the position of the independent contractor to the independent contractor's prejudice;
(d)refuse to engage another person as an independent contractor;
(e)discriminate against another person in the terms or conditions on which the person offers to engage the other person as an independent contractor.
The respondents asked rhetorically “who was injured?”. They observed that it was not suggested that C&C would have been injured if Mr Primmer had been successful in having them stop Fine Line. It also appears to have been submitted that no injury vis-à-vis Fine Line had been identified by the applicant.
The respondents’ submission on s.800(1) was that it was questionable whether whatever it was that Mr Primmer was advocating should be characterised as action for a prohibited reason.
Unions’ statutory liability as principals
The respondents submitted that s.826(2), being a general provision, gives way to the specific provisions of s.779(2) and has no role to play in the present proceedings.
In Kelly v Construction, Forestry, Mining & Energy Union (1995) 59 IR 86 at 87, Moore J considered the then s.335(4) of the Industrial Relations Act 1988 (Cth), which was similar to the current s.779(2), and also s.349(2) of the Industrial Relations Act 1988 (Cth), which was similar to what is now s.826(2). There, his Honour made the following comments:
I should also refer to s.349(2)(a) which was relied upon by the prosecutor and relevantly provides that any conduct engaged in or on behalf of a body corporate by an officer of the body corporate within the scope of his or her actual or apparent authority shall be taken, for the purposes of the Act, to have been engaged in also by the body corporate. An organisation registered under the Act, such as the defendant, is a body corporate: see s.192 [now s.27 of ch.2, sch.1 to the Act]. I am presently inclined to the view that the general provision found in s.349(2) has no application to conduct that is said to constitute an offence under s.335 given that s.335 contains, in s.335(4), a special division dealing with the same subject matter.
His Honour reiterated that view in Kelly vConstruction, Forestry, Mining & Energy Union (No.3) (1995) 63 IR 119 at 136.
It was finally submitted that to establish that the conduct was “within the scope … of apparent authority” under s.349(2) [scil: s.826] of the Act, it is necessary to prove more than that Mr Primmer held himself out as having authority to engage in the conduct.
Unions’ vicarious liability and common law liability as principals
It was submitted that to make the CFMEU and/or the CFMEU(NSW) directly liable for the conduct of Mr Primmer, the applicant was required to show that Mr Primmer was acting not merely as the agent of the other two respondents but rather as the directing mind and will of either or both of them.
As to vicarious liability, it was submitted that it was necessary to establish that Mr Primmer’s actions were authorised by the unions or that they did not take proper steps to prevent the conduct in question. In particular, it was submitted that it was necessary that the applicant demonstrate:
a)that the conduct was engaged in “on behalf of” the CFMEU and the CFMEU(NSW) or either of them;
b)that Mr Primmer’s conduct was “within the scope” of his actual or apparent authority; and
c)that his conduct was at the direction or with the consent or agreement of an officer or an agent of the CFMEU and the CFMEU(NSW) or either of them where the giving of such direction, consent or agreement was within the actual or apparent authority of that other officer or agent.
It was submitted that to establish that the conduct was authorised by either of the unions, it was necessary to show that Mr Primmer had actual authority to engage in the conduct. In this respect, it was submitted that actual authority may only be established by reference to the rules of the unions in question and that any authority established under such rules would be limited by two principles relevant to the construction of union rules, namely:
a)there can be no presumption of authority for the agent to do what the principal could not lawfully do; and
b)a union rule must be construed as containing an implication limiting authority to engage in legal conduct and not illegal conduct.
Division 2 Part 16 of the Act
Division 2 of Pt.16 identifies the conduct to which the section of the Act found in Pt.16 apply. The respondents submitted that the alleged contraventions had not been proved because the applicant did not specifically plead or rely upon conduct expressly identified as falling within div.2 of Pt.16 of the Act. The respondents further submitted that the CFMEU(NSW) is neither a constitutional corporation nor an organisation as those terms are understood for the purposes of the Act. They submitted that because of this the CFMEU(NSW) is not a body comprehended by div.2 of Pt.16 being neither caught by s.783, which deals with conduct relating to organisations, nor s.785, which deals with conduct relating to constitutional corporations.
Who was to stop the project?
The respondents submitted that any stoppage of the Project would have been caused not by Mr Primmer but by the Department of Commerce. Counsel for the respondents submitted that the evidence was that Mr Primmer was most anxious to make it clear that if the job was stopped it was not he who was stopping it. It was also pointed out on behalf of the respondents that when Mr Ian Kennedy told the painters to stop work, as he did on two occasions, on neither of those occasions did he say that they had to stop work because Mr Primmer wanted them to.
Respondents’ application in a case
In support of their application in a case that the proceedings be dismissed or permanently stayed, the respondents submitted that as s.16 of the Act had the effect that the NSWIRC had no jurisdiction to determine the NSWIRC proceedings, those proceedings could not be considered to be “a proceeding under an industrial law”, as contemplated by s.793(1)(k) of the Act. This was because, it was submitted, those proceedings were a nullity as a matter of law.
Referring to Burnie Port Corporation Pty Ltd v Maritime Union of Australia (2000) 103 IR 153 it was submitted that a proceeding under an industrial law for the purposes of s.793(1)(k) “referred to an entitlement as a matter of legal right”, rather than to what the respondents described as “a colloquial entitlement”. However, that decision is distinguishable from the facts of this case, not at least because it was concerned with the proper interpretation of what is now s.793(1)(i). Its reference to “a present or existing legal entitlement” at 157 [23] was a reference to an industrial instrument or order rather than to the issue of whether particular proceedings meet the criteria of “a proceeding under an industrial law”.
The respondents further submitted that for a contravention of s.792(5) to occur there must have been a person who has been the subject of action for one of the reasons prohibited by s.793. It was submitted that engaging in or threatening to engage in conduct of the kind referred to in s.792(5) would not be a contravention of that subsection if there is “no basis at law for the prohibited reason”. The respondents referred to what Gray J had said in Employment Advocate v Williamson (2001) 111 FCR 20 at 29 [23]:
What is clear, however, is that, for a contravention of s.298K to occur, there must be a person or persons who fall within the description in one or more of the prohibited reasons. To take a simple example, even if an employer believes he or she is dismissing an employee because the employee is a member of an industrial association, there will be no contravention of s.298K(1)(a) if it turns out that the employee is not a member of the industrial association. Compare Burgess v John Connell-Mott, Hay and Anderson Pty Ltd (1979) 37 FLR 386. Similarly, a threat to engage in conduct of one or more of the kinds referred to in s.298K(1) for what appears to be a prohibited reason will not be a contravention if there is no basis for the prohibited reason.
It was submitted that because the NSWIRC is not a superior court of record and had no jurisdiction to hear and to determine the proceedings before it, those proceedings were a nullity as a matter of law. In support of this argument reference was made to Pelechowski v The Registrar, Court of Appeal (NSW) (1999) 198 CLR 435, where at 445 [27] and 453 [55] Gaudron, Gummow and Callinan JJ referred with approval to the principle explained by McHugh JA in Attorney-General (NSW) v Mayas Pty Ltd (1988) 14 NSWLR 342 at 357:
If an inferior tribunal exercising judicial power has no authority to make an order of the kind in question, the failure to obey it cannot be a contempt. Such an order is a nullity. Any person may disregard it. Different considerations arise, however, if the order is of a kind within the tribunal's power but which was improperly made. In that class of case, the order is good until it is set aside by a superior tribunal. While it exists it must be obeyed.
The respondents also referred to Berowra Holdings Pty Ltd v Gordon (2006) 225 CLR 364 where the distinction between a superior court of record and court of limited jurisdiction was considered. There, Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ said:
In particular, the introduction into s.151C of concepts of “nullity” and “invalidity” is misleading because they tend to obscure the distinction between superior courts of record of general jurisdiction and courts of limited jurisdiction. … In the case of the superior courts, acts in excess of jurisdiction cannot be characterised as invalid until quashed or set aside on appeal, whereas that is not necessarily true of the latter. Thus, in the majority judgment of Gaudron, Gummow and Callinan JJ in Pelechowski v Registrar, Court of Appeal (NSW), it was decided that, because an order made by an inferior court (in that case the New South Wales District Court) without power to do so was a “nullity”, it could not found a proceeding for contempt. This situation was contrasted to that arising where an order was made within power but improperly, in which case, until set aside by a superior court, the order had to be obeyed. (at 370 [11])
Based on these arguments, the respondents submitted that there was no “person at law”, as they described the existence or absence of facts meeting the criteria of a prohibited reason, and no basis for a finding that the respondents had contravened s.800(1)(a) of the Act.
Consideration
The alleged conversations
First relevant conversation on 12 October 2006 (Second and third alleged contraventions)
The first two of the three remaining contraventions alleged against Mr Primmer, and thus against the other respondents as well, depend on the Court finding that Mr Primmer made the statements alleged against him and quoted at [9(b)] above.
Supporting a conclusion that the statements were made is the evidence of Mr Thomas. This testimony is supported by an almost contemporaneous note, a copy of which was given to Mr Mogg on site on 12 October 2006, together with Mr Thomas’s more detailed notes which were written later on 12 October 2006. Further, Mr Thomas’s evidence is corroborated in significant measure by the evidence of Mr Ian Kennedy, whose recollection was also documented in a detailed note written the same day. It should be observed that both of the notes were written at a time when neither Messrs Thomas nor Ian Kennedy had reason to see any special significance in Mr Primmer’s reference to the NSWIRC proceedings.
Further, the statements which Mr Thomas attributes to Mr Primmer but which the latter denies are similar in substance to statements made by Mr Primmer to Mr Justin Kennedy of the NSW Department of Commerce which were largely accepted by Mr Primmer to have been made by him. It is difficult to accept that Mr Primmer made a complaint to Mr Justin Kennedy about Fine Line owing an apprentice two days’ pay, about being involved in a court case and about C&C using Fine Line on the site, but that he failed to raise the same matters during his nearly contemporaneous conversations with Mr Thomas, as Messrs Thomas and Ian Kennedy say he did.
Additionally, Mr Mogg’s conversation with Mr Camarda, recorded in Mr Mogg’s diary note and subsequent email to Mr Alfred, is evidence that Mr Camarda was aware of the court case issue. It has not been demonstrated that Mr Justin Kennedy, who is the only person with whom Mr Primmer concedes he raised the NSWIRC proceedings, spoke to Mr Camarda that day. Mr Justin Kennedy does not suggest it in his evidence and I conclude he did not speak to Mr Camarda on 12 October 2006 in relation to the events on the Project site that day. That suggests that Mr Camarda’s knowledge came about because Mr Thomas or Mr Ian Kennedy told him during their conversations with him that day. That suggestion, in turn, supports the correctness of the recollection of Messrs Thomas and Ian Kennedy that Mr Primmer raised the court case issue with them on 12 October 2006.
Also to be taken into account are the events on the site on 18 October 2006 and Mr Primmer’s photographs which he says were taken on that day depicting aspects of the Project site as he saw them on that visit. There is nothing in the photographs taken by Mr Primmer which identify them as having been taken on 18 October 2006. The only photographs which do depict a date are those which show the tags on the RCDs in the crib room and the toilets. Both of these tags are dated 12 October 2006 and, given that Mr Ian Kennedy’s evidence was that on 12 October 2006 the tags had been one day out of date, it can be concluded that the tags depicted in the photographs were affixed on 12 October 2006 after Mr Primmer made his safety walk. In this connection, the evidence of both Messrs Thomas and Ian Kennedy is that while Mr Primmer was still on site the electricians were at work in the crib room updating the tags. While the photographs might suggest that they were taken after 12 October 2006 they could also have been taken by Mr Primmer on 12 October 2006.
Further, it is not insignificant that Mr Primmer’s notebook, while noting matters of concern on 12 October 2006, makes no reference to the matters which he says were of continuing concern to him as a result of his visit on 18 October 2006. The absence from his 18 October 2006 notes of any reference to a second safety walk or to the results of that walk, coupled with his failure to pursue the issues which he says he identified on that occasion, even by way of a further rectification notice, suggest that the 18 October 2006 visit was, as Mr Thomas says, a short one involving only a request for Fine Line’s SWMS.
Such a conclusion is not contradicted by Mr Justin Kennedy’s account of the conversation he had with Mr Primmer on site on 18 October 2006 when Mr Primmer said that he was there “checking on some paperwork” but made no reference to pursuing issues raised by his rectification notice. Indeed, Mr Justin Kennedy’s recollection of that conversation suggests that Mr Primmer’s continuing concern was the wages issue which he had raised with him on 12 October 2006. Mr Justin Kennedy records Mr Primmer as having said on 18 October 2006, amongst other things:
I’d like to arrange a meeting with you and Ashok later today to discuss Commerce’s view on how the IR laws should be implemented and also how this apprenticeship issue is being handled … I want to talk about what Commerce’s opinion is on the implementation of industrial relations laws and why this contractor should be allowed to work on this site given the circumstances.
Mr Primmer agrees that he said those words and his counsel submitted that Mr Justin Kennedy was a very straightforward witness.
The respondents submitted that Mr Justin Kennedy’s evidence demonstrated that Mr Primmer’s concern was with making a complaint to the New South Wales Department of Commerce and not with complaining to C&C about Fine Line. However, the evidence does not support such a conclusion.
Messrs Thomas and Ian Kennedy adhered to their stated recollections notwithstanding that they were subject to close cross-examination. I found their demeanour in the witness box to be impressive. It is also to be noted that Mr Ian Kennedy no longer works for C&C or in the building industry at all and is now pursuing a very different occupation. While Mr Primmer was also vigorously cross-examined and was relevantly unshaken in his stated recollection of events, it nevertheless became apparent that an important aspect of his conversation with Mr Justin Kennedy had been omitted from his affidavit, an omission which meant that the affidavit gave the misleading impression that Mr Primmer had at no time and to no person on 12 October 2006 raised Fine Line’s alleged involvement in a court case and the question of whether it was appropriate for Fine Line to be working on the Project as a consequence.
In many respects, Messrs Thomas, Ian Kennedy and Primmer agree on what happened on 12 October 2006. However, where Mr Primmer’s evidence differs from that of Messrs Thomas and Ian Kennedy, I find the evidence of the latter two witnesses to be more convincing. For instance, Mr Primmer denied having, at any point, removed power leads or power boards from their power supplies. Both Messrs Thomas and Ian Kennedy said that he did, and their spontaneous observations in cross-examination to the effect that they were unable to make a photocopy for Mr Primmer on 12 October 2006 because he had disconnected their photocopier had the ring of truth.
Similarly, Mr Thomas’s evidence that the deficiencies identified by Mr Primmer on 12 October 2006 had been rectified by the end of the following day is consistent with the unchallenged evidence of Mr Ian Kennedy that after Mr Primmer’s inspection of the crib room and toilets Mr Ian Kennedy asked an electrician to test and tag all of C&C’s electrical equipment and he also asked a carpenter’s apprentice to secure all power boards on the site. I found Mr Thomas’s evidence that he recalled Mr Primmer taking photographs on 12 October 2006 but not on 18 October 2006 to be convincing. These conclusions suggest that Mr Primmer’s photographs depict the site on 12 October 2006, not 18 October 2006 as he states. That in turn casts doubt on his evidence concerning the site visit of 18 October 2006 and the reliability of his evidence more generally.
I therefore conclude that where the evidence of Messrs Thomas and Ian Kennedy and that of Mr Primmer differ in relation to the conversations grounding the second and third alleged contraventions, I prefer the evidence of Messrs Thomas and Ian Kennedy and reject the evidence of Mr Primmer.
Second relevant conversation on 12 October 2006 (fourth alleged contravention)
For the same reasons, where the evidence of Messrs Ian Kennedy and Primmer differ concerning the fact and substance of the conversation alleged as the basis of the fourth alleged contravention, where they differ, I prefer the evidence of Mr Kennedy and reject the evidence of Mr Primmer.
Failure to call Mr Camarda
The respondents submitted that an inference might be drawn from the fact that Mr Camarda was not called to give evidence that he could not have assisted the applicant. However, it was not suggested that Mr Camarda was, at any relevant time, on site or a participant in the relevant conversations with Mr Primmer. In such circumstances, I do not draw the inference which the respondents invited be drawn.
Contraventions of s.800(1)(a) (second and fourth alleged contraventions)
In Employment Advocate v Williamson, Branson J considered the meaning of “advise, encourage or incite” where those words were used in the then s.298P, a predecessor of s.800, and said at 42 [72], Kenny J agreeing at 50 [108]:
In my view the words “advise, encourage or incite” in s.298P(3) of the Act are intended to carry the same meanings as the identical words carried in s.138(1) of the Conciliation and Arbitration Act. That is, that they bear different shades of meaning but with advice being intended to encompass conduct somewhat more lenitive than conduct which could be characterised as encouragement or incitement.
In Employment Advocate v National Union of Workers (2000) 100 FCR 454, Einfeld J, also considering the terms of the former s.298P(3), had said:
It follows from the terms incitement, advice and encouragement themselves, as well as from the tense used in s.298P(3) which prohibits action “that would if taken, contravene section 298K” (emphasis added), that there is no need for the employer to act upon the incitement, advice or encouragement in order for the section to be contravened. Any action actually contemplated or taken by the employer is irrelevant for the purposes of s.298P(3) and unnecessary for a breach of the section. (at 466 [37])
The Oxford English Dictionary (2nd ed.) relevantly defines “advise” as:
(8)To offer counsel, as one of a consulting body; to give advice …
(10)To give notice or intimation, to instruct, to inform, to apprise (a person) …
It also defines “advice” relevantly as:
(5) Opinion given or offered as to action; counsel …
and relevantly defines “encourage” as:
(2)(b)To incite, induce, instigate; in a weaker sense, to recommend, advise.
The Macquarie Dictionary (rev. 3rd ed.) relevantly defines “advise” as:
(1)to give counsel to, offer an opinion to, as worthy or expedient to be followed.
(2) to recommend as wise, prudent etc.
(3) to offer counsel; give advice.
It also defines “advice” relevantly as:
(1)an opinion recommended, or offered, as worthy to be followed.
and relevantly defines “counsel” as:
(1)advice; opinion or instruction given in directing the judgment or conduct of another.
The Macquarie Dictionary also relevantly defines “encourage” as:
(2) to stimulate by assistance, approval …
The sense in which “advise” and “encourage” are used in s.800(1) of the Act indicates that those words should be understood in their ordinary sense and to not have any additional or special meaning. As to those words’ ordinary meanings, although dictionaries cannot bind the Court as to the proper meaning of a word when construing a statute, they nevertheless do provide assistance in determining the ordinary meaning of words. The dictionary quotations appearing above indicate that there is no complexity to the proper understanding of “advise” or “encourage”.
The words which Mr Primmer used in his conversation with Mr Thomas on 12 October 2006 and quoted above at [9(b)] did, in my view, amount to advice and encouragement to C&C to take action against Fine Line which, if taken, would have contravened s.792(5). In their conversation, Mr Primmer was, in effect, saying to Mr Thomas that Fine Line should not have been working on the Project because Mr Mogg had “court proceedings against him for not paying an apprentice for two days wages”. Later, as part of the same conversation, Mr Primmer said:
Ok, you will have to stop the painters.
Although Mr Primmer made reference to the potential intervention of “the Taskforce”, it is clear that Mr Primmer was saying that C&C should dissociate itself from Fine Line, by preventing that company from working on the Project, and the root cause of this was the NSWIRC proceedings.
Similarly, the conversation between Mr Primmer and Mr Ian Kennedy quoted above at [9(d)] amounts to an invitation by Mr Primmer to Mr Ian Kennedy, and thus C&C, to do something about Fine Line. When seen in the context of the conversation Mr Primmer had earlier with Mr Thomas, and to which Mr Ian Kennedy was a witness, Mr Primmer must be understood to have been referring to the advice and encouragement he had given to Mr Thomas to prevent Fine Line from working on the Project. Indeed, this second conversation contained a not so implied threat to embarrass C&C in the local media if it did not take action against Fine Line. The basis upon which action by C&C might have been taken against Fine Line was, when this conversation is considered in the context of the earlier conversation with Mr Thomas, the fact that Fine Line had been involved in the NSWIRC proceedings.
If C&C had acted on this advice and encouragement of Mr Primmer it would have, at least, altered the position of Fine Line to Fine Line’s prejudice. Depending on the precise action which C&C took, it might also have terminated Fine Line’s contract or injured Fine Line in relation to the terms and conditions of its contract with C&C. Any step taken by C&C to inhibit Fine Line’s work on the Project, and thus from enjoying the fruits of its contract with C&C, would have amounted to conduct described in one or more of paragraphs (a), (b), (c) and (d) of s.792(5).
Even so, such conduct would not contravene s.792(5) unless it was undertaken for a reason prohibited by s.793. However, in this case, the conduct advised and encouraged by Mr Primmer would, if taken, have been for a reason prohibited by s.793(1)(k), namely that Fine Line had participated in a proceeding under an industrial law. The proceeding in question was the NSWIRC proceedings.
As already noted, the respondents have filed an application in a case arguing that s.793(1)(k) of the Act had no relevance to these proceedings because the NSWIRC proceedings could not properly be characterised as “a proceeding under an industrial law”. The basis of the argument is that, by reason of the Act’s operation, the NSWIRC had no jurisdiction to determine the matter before it. However, the fact that a tribunal, whether or not a superior court of record, has no jurisdiction to determine a dispute brought to it does not prevent such a case from being a proceeding. A distinction is to be drawn between the existence or absence of power in a tribunal to determine a matter and the proper invocation of the tribunal’s power to consider whether it has the power to do what is sought. As was said in Berowra Holdings Pty Ltd v Gordon:
In the adversarial system of justice, choice rests primarily with the parties and it is generally the case that the court's power of decision or order is exercised upon the application of a party. Generally there is in law no restriction upon a person's right to start an action and to carry it to the point at which a choice is cast upon the defendant to make some response in order to avoid judgment in default. Once the procedural law has been engaged, all parties to the litigation are subject to it.
None of the above denies the possibility of a defendant denying the plaintiff's right to invoke the jurisdiction of the court, for example where the plaintiff's right is conditional upon there being an action cognisable within that jurisdiction. However, the material point is that that denial must be made within the structure of the relevantly engaged procedural law, and not outside it. Accordingly, the defendant may challenge at an interlocutory level the strength of the plaintiff's alleged case by seeking to have a plaintiff's action struck out for failure to disclose a reasonable cause of action, or dismissed as incompetent. Alternatively, the defendant may have recourse to judicial review by a superior court, challenging the right of an inferior court to adjudicate the plaintiff's claim and seeking orders to prevent the inferior court continuing to hear the claim. However, the invocation of jurisdiction ordinarily enlivens the authority of the court in question at least in the first instance to decide whether it has jurisdiction. (at 371 [15] and [16] per Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ)
See also Fisher v Minister for Immigration & Citizenship [2007] FCA 591 per Stone J at [13].
These considerations apply to the NSWIRC proceedings which Mr Primmer and the CFMEW(NSW) brought against Fine Line.
Consequently, I find that the NSWIRC proceedings were a “proceeding under an industrial law” for the purposes of s.793(1)(k). This has the consequence that any conduct which C&C might have taken for the reason identified by Mr Primmer, namely that Fine Line had been involved in the NSWIRC proceedings, and also met any of the criteria in paragraphs (a), (b), (c) or (d) of s.792(5), would have amounted to a breach of that subsection of the Act.
Moreover, as explained by Einfeld J in Employment Advocate v National Union of Workers quoted above at [110], there was no need for C&C to act upon Mr Primmer’s advice or encouragement in order for the section to be contravened. Any action which might have been contemplated or actually taken by C&C would be irrelevant for the purposes of s.800(1).
The respondents’ submission that the words “a person” when used in s.800(1) denoted only a natural person did not address s.22(1)(a) of the Acts Interpretation Act 1901 which provides:
Meaning of certain words
(1) In any Act, unless the contrary intention appears:
(a)expressions used to denote persons generally (such as “person”, “party”, “someone”, “anyone”, “no‑one”, “one”, “another” and “whoever”), include a body politic or corporate as well as an individual;
I conclude that the words “a person” when used in s.800(1) include corporations such as C&C and I reject the respondents’ submissions to the contrary.
This conclusion also has relevance to the respondents’ submission that for a contravention of s.800(1) to occur the person invited to take action in relation to the third party had to be in a position to actually take such action and that neither Messrs Thomas nor Ian Kennedy were in such a position. First, it cannot seriously be doubted that Mr Primmer dealt with Messrs Thomas and Ian Kennedy in their capacities as employees of C&C with particular responsibilities in connection with the Project. Consequently, it was not to two individuals that Mr Primmer was giving advice and encouragement but, rather, to C&C as represented by these two men. Secondly, the facts make it clear that Mr Ian Kennedy, at least, was in a position to take action in relation to Fine Line because, following Mr Primmer’s conversation with Mr Thomas quoted about at [9(b)], he went out onto the site to try to stop the Fine Line painters from doing their work. That he was unsuccessful was only because Mr Norris refused to accept orders from anybody other than Mr Mogg. Consequently, this argument of the respondents must be rejected.
In light of the above considerations, I find that Mr Primmer gave advice and encouragement to C&C to engage in conduct which, if taken, would have contravened s.792(5) and that he thereby breached s.800(1)(a) of the Act on two occasions, namely in the conversations quoted above at [9(b)] and [9(d)].
Contravention of s.800(1)(b) (third alleged contravention)
Mr Primmer can only be found to have breached s.800(1)(b) if I conclude that he threatened C&C with industrial action with the intent of coercing C&C to take action against Fine Line which, if taken, would have contravened s.792(5). The expression “industrial action” is defined in s.420 of the Act which provides:
420 Meaning of industrial action
(1) For the purposes of this Act, industrial action means any action of the following kinds:
(a) the performance of work by an employee in a manner different from that in which it is customarily performed, or the adoption of a practice in relation to work by an employee, the result of which is a restriction or limitation on, or a delay in, the performance of the work;
(b) a ban, limitation or restriction on the performance of work by an employee or on the acceptance of or offering for work by an employee;
(c) a failure or refusal by employees to attend for work or a failure or refusal to perform any work at all by employees who attend for work;
(d) the lockout of employees from their employment by the employer of the employees;
but does not include the following:
(e) action by employees that is authorised or agreed to by the employer of the employees;
(f) action by an employer that is authorised or agreed to by or on behalf of employees of the employer;
(g) action by an employee if:
(i) the action was based on a reasonable concern by the employee about an imminent risk to his or her health or safety; and
(ii) the employee did not unreasonably fail to comply with a direction of his or her employer to perform other available work, whether at the same or another workplace, that was safe and appropriate for the employee to perform.
(2) For the purposes of this Act:
(a) conduct is capable of constituting industrial action even if the conduct relates to part only of the duties that employees are required to perform in the course of their employment; and
(b) a reference to industrial action includes a reference to a course of conduct consisting of a series of industrial actions. …
I am not of the view that what Mr Primmer said on 12 October 2006 to Messrs Thomas and Ian Kennedy quoted above at [9(b)] amounted to a contravention of s.800(1)(b). Nothing in the words spoken by Mr Primmer refers in any way to industrial action nor can an inference to that effect reasonably be drawn. Although I accept that Mr Primmer said that “the project will be stopped” I am not satisfied that this referred to the industrial action which s.800(1)(b) requires. Rather, I am of the view that the stoppage referred to was the possible result of action by the Department of Commerce or, more likely, to distractions caused by the introduction of “the Taskforce” onto the site.
As I am satisfied that the words which I accept Mr Primmer spoke to Mr Thomas do not meet the criteria identified by s.420 as constituting a threat of industrial action, I find that the respondents have discharged their onus under s.809 of the Act and that that conversation does not amount to a breach of s.800(1)(b) of the Act.
Standard of proof
In reaching these conclusions concerning which version of the relevant conversations to accept and how the conversations should be characterised, I have had regard to the fact that the applicant seeks civil remedies against the respondents in the form of pecuniary penalties. In such circumstances, the civil standard of proof applies, as explained and considered in Briginshaw v Briginshaw (1938) 60 CLR 336; Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 and Australian Competition & Consumer Commission v Australian Safeway Stores Pty Ltd (No.2) (2001) 119 FCR 1.
Unions’ statutory liability as principals
It was apparent from Mr Primmer’s evidence that he had given no detailed consideration to the status he might have in the federal CFMEU – his evidence being that he was employed by the CFMEU(NSW). Notwithstanding that Mr Primmer appears not to have adverted to his dual role, the evidence nevertheless demonstrates that he did have a relevant role in the federal CFMEU. Indeed the CFMEU(NSW) admitted that during the relevant period Mr Primmer was employed jointly by the CFMEU and the CFMEU(NSW).
On 25 January 2006 the CFMEU wrote to the Deputy Industrial Registrar of the Australian Industrial Registry applying under the Act for permits for entry and inspection of premises for the “officers or employees of the organisation” set out in the list attached to the Union’s letter. Amongst the employees listed in that enclosure was Mr Primmer. In response to that letter, the Australian Industrial Registry wrote to the CFMEU granting to Mr Primmer, amongst others, permits issued pursuant to s.285A of the Act. This followed the Australian Electoral Commission’s declaration of results for the election of various officer bearers in the NSW divisional branch of the CFMEU on 29 September 2004. Mr Primmer, amongst others, was declared elected as a divisional branch organiser of the CFMEU Construction and General Division of the NSW Divisional Branch.
At the state level, the Secretary of the CFMEU(NSW), Mr Ferguson, made a statutory declaration on 30 March 2005, apparently filed with the Industrial Registrar of NSW, which attached a copy of a list of office holders of the CFMEU(NSW). In that statutory declaration, Mr Ferguson said:
The listed office holders were elected to their positions in the NSW Branches of the relevant divisions of the Construction Forestry Mining and Energy Union in 2004. In accordance with Rule 14A of the Rules of the Construction Forestry Mining and Energy Union (NSW branch) these officers hold the corresponding positions in the state registered Union.
Rule 14A of the CFMEU(NSW)’s rules provide that officers of the NSW branch of the CFMEU are, subject to qualifications not relevant to this case, to be taken to be validly elected to the corresponding office of the CFMEU(NSW). Mr Primmer’s name was listed as a divisional branch organiser in the list of office holders annexed to Mr Ferguson’s statutory declaration.
Consequently, even if Mr Primmer believed himself to be employed by the CFMEU(NSW), he was nevertheless an officer of both the CFMEU and the CFMEU(NSW) and was acknowledged as such by both unions. Moreover, I am satisfied that Mr Primmer discharged his functions as organiser without discriminating whether he was doing so as an official of the state or the federal union. This can be concluded not only from his oral evidence in these proceedings but also from the fact that when he first sought to inspect Fine Line’s time and wage book by his notice dated 7 April 2006, he did so as an official of the CFMEU and when he sent a formal reminder he did so as a state official of the CFMEU(NSW).
Consequently, I am satisfied that during the course of the events the subject of these proceedings, Mr Primmer was an officer and agent of the CFMEU and the CFMEU(NSW) and that he was acting in those capacities.
The CFMEU(NSW) submitted that it is not an organisation governed by the Act but, rather, falls under state jurisdiction. This submission, to the extent that its effect is that the CFMEU(NSW) is governed only by state law, must be rejected. First, in its amended defence the CFMEU(NSW) admits the allegations made in para.4 of the amended statement of claim that it is and was at all relevant times:
a)an industrial organisation of employees registered under the IRA of New South Wales;
b)by reason of its being so registered, a body corporate; and
c)an “industrial association” for the purposes of s.779 of the Act.
Secondly, the certificate of the NSW Deputy Industrial Registrar dated 9 September 2008 regarding the holding by Mr Primmer of an office in the CFMEU(NSW) independently supports a conclusion that the CFMEU(NSW) was an industrial organisation of employees registered in NSW under an industrial law, specifically the IRA which is cited in the certificate, with the result that it is an industrial association subject to the Act.
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.
Unions’ vicarious liability
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; and
i)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.
As already noted, it is also clear that Mr Primmer was permitted to write to Fine Line on both CFMEU and CFMEU(NSW) stationery seeking inspection of its time and wages books.
As a result, it must be concluded that Mr Primmer engaged in the conduct at the Project site on 12 October 2006 with the authority of the two unions. In Hanley v Automotive, Food, Metals, Engineering, Printing & Kindred Industries Union (2000) 100 FCR 530, the Full Court of the Federal Court held in penalty proceedings similar to these, that to establish vicarious liability it is necessary to adduce evidence which establishes, on the balance of probabilities, that the act complained of was authorised. It was also held that actual authority must be shown, although the authority might be a broad one, encompassing a class of acts into which the act complained of falls. Their Honours further held that it is well established that, once authority to engage in certain tasks is proved, vicarious liability extends to unauthorised modes of performing those tasks (at 548-549 [76]). Moreover, the unions cannot escape vicarious liability in circumstances such as these even if Mr Primmer’s conduct was not permitted by their rules: Hanley’s case at 550 [83]-[84].
I conclude that the statements made by Mr Primmer to Messrs Thomas and Ian Kennedy on 12 October 2006, quoted above at [9(b)] and [9(d)], amounted to the authorised performance of tasks associated with Mr Primmer’s positions and employment with the CFMEU and the CFMEU(NSW) as district organiser even if, possibly, the particular mode he employed when performing those tasks was unauthorised. Consequently, I conclude that the CFMEU and the CFMEU(NSW) are vicariously liable for the conduct in question.
Division 2 of Part 16 of the Act
These conclusions are not affected by the respondents’ submissions on the significance of div.2 of Pt.16 of the Act and the asserted necessity that alleged contravening conduct be specifically linked to one of the provisions in that division. Division 2 of Pt.16 identifies the conduct to which Pt.16 applies and supplies the necessary constitutional nexus for divs.3-8 of Pt.16. Such provisions have been described as “in substance a series of enactments, none of which are inconsistent with each other, and each of which is separately supported by a head or heads of legislative power”: Australian Workers’ Union v BHP Iron-Ore Pty Ltd (2000) 106 FCR 482 per Kenny J at 493 [31] adopting and adapting the observation of Barwick CJ in R v Australian Industrial Court; Ex parte CLM Holdings Pty Ltd (1997) 136 CLR 235 at 238.
It is only conduct which falls within ss.793-788 that is proscribed: A & L Silvestri Pty Ltd v Construction, Forestry, Mining & Energy Union (2007) 165 IR 94 at 117 [75]; Rowe v Transport Workers’ Union of Australia (1998) 90 FCR 95 at 106. Notwithstanding the respondents’ submissions, it is unsurprising that it is not the provisions of div.2 which are alleged to have been contravened. This is because div.2 is not an independent source of liability. In this case it is s.800(1) which defines the conduct which can attract a penalty. Certainly, it is a necessary precondition to finding a breach of any of the provisions in divs.3-8 of Pt.16 that the conduct in question be conduct referred to in div.2, but in courts with rules more detailed than this Court’s simplified rules it is no longer the practice that the satisfaction of a condition precedent usually need be pleaded. Rather, it is the lack of satisfaction of a condition precedent which ought to be alleged and it ought to be alleged in a defence. In this Court, where lack of formality and lack of technicality is encouraged, the pleading point raised by the respondents should not be accepted.
In any event, it is sufficiently clear that the conduct alleged by the applicant against the respondents is conduct referred to in div.2 of Pt.16, specifically in s.785(1)(g).
Respondents’ application in a case
For the reasons set out above at [118] to [120], these proceedings will not be dismissed or permanently stayed by reason of the matters raised in the respondents’ application in a case. Rather, that application in a case will, itself, be refused.
Conclusion
I therefore find that the three respondents, Mr Primmer, the CFMEU and the CFMEU(NSW), breached s.800(1)(a) of the Act on two occasions on 12 October 2006. There will be declarations accordingly in the terms sought by the applicant.
However, I find that none of the respondents breached s.800(1)(b) of the Act on 12 October 2006 by reason of the conversation quoted above at [9(b)].
The respondents’ application in a case will be refused.
Finally, the application will be adjourned for a further hearing to consider any orders which should be made under s.807 of the Act.
I certify that the preceding one-hundred and fifty-two (152) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate:
Date: 3 November 2008
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