Alfred v Wakelin (No. 2)

Case [2008] FCA 1543

FEDERAL COURT OF AUSTRALIA

Alfred v Wakelin (No. 2) [2008] FCA 1543

INDUSTRIAL LAW – whether conduct of union delegate made union liable – capacity in which delegate was acting with respect to unlawful industrial action – whether delegate was acting as agent on behalf of the union – delegate’s apparent authority – whether conduct within the scope of delegate’s apparent authority.
Held: declarations made.

Building and Construction Industry Improvement Act 2005 (Cth)
Workplace Relations Act 1996 (Cth)

Australasian Brokerage Ltd v Australia and New Zealand Banking Corporation Ltd (1934) 52 CLR 430
Construction, Forestry, Mining and Energy Union v Clarke (2007) 164 IR 299; [2007] FCAFC 87
Essington Investments Pty Ltd v Regency Property Pty Ltd [2004] NSWCA 375
Freeman & Lockyer (a firm) v Buckhurst Park Properties (Mangal) Ltd [1964] 2 QB 480
Hanley v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (2000) 100 FCR 530; [2000] FCA 1188
J-Corp Pty Ltd v Australian Builders Labourers Federated Union of Workers – Western Australian Branch (1992) 111 ALR 502
Pacific Carriers Ltd v BNP Paribas (2004) 218 CLR 451 at [36]
The Employment Advocate v National Union of Workers (2000) 100 FCR 454; [2000] FCA 710
Trade Practices Commission v Tubemakers of Australia Ltd (1983) 47 ALR 719

Bowstead and Reynolds on Agency (18th ed, Sweet & Maxwell, 2006) Article 23

GREGORY CHARLES ALFRED v ROBERT WAKELIN, CHARLES ABELA, MARK BATZLOFF, ROBERT JONES, JOSEPH O'CONNOR, THE AUSTRALIAN WORKERS' UNION, THE AUSTRALIAN WORKERS' UNION, NEW SOUTH WALES, CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION, THE CONSTRUCTION, FORESTRY, MINING & ENERGY, INDUSTRIAL UNION OF EMPLOYEES, QUEENSLAND, AUSTRALIAN BUILDING CONSTRUCTION EMPLOYEES AND BUILDERS' LABOURERS' FEDERATION (QUEENSLAND BRANCH) UNION OF EMPLOYEES and FEDERATED ENGINE DRIVERS' AND FIREMENS' ASSOCIATION OF QUEENSLAND, UNION OF EMPLOYEES

NSD 858 OF 2007

JAGOT J
17 OCTOBER 2008
SYDNEY


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 858 OF 2007

BETWEEN:

GREGORY CHARLES ALFRED
Applicant

AND:

ROBERT WAKELIN
First Respondent

CHARLES ABELA
Second Respondent

MARK BATZLOFF
Third Respondent

ROBERT JONES
Fourth Respondent

JOSEPH O'CONNOR
Fifth Respondent

THE AUSTRALIAN WORKERS' UNION
Sixth Respondent

THE AUSTRALIAN WORKERS' UNION, NEW SOUTH WALES
Seventh Respondent

CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION
Eighth Respondent

THE CONSTRUCTION, FORESTRY, MINING & ENERGY, INDUSTRIAL UNION OF EMPLOYEES, QUEENSLAND
Ninth Respondent

AUSTRALIAN BUILDING CONSTRUCTION EMPLOYEES AND BUILDERS' LABOURERS' FEDERATION (QUEENSLAND BRANCH) UNION OF EMPLOYEES
Tenth Respondent

FEDERATED ENGINE DRIVERS' AND FIREMENS' ASSOCIATION OF QUEENSLAND, UNION OF EMPLOYEES
Eleventh Respondent

JUDGE:

JAGOT J

DATE OF ORDER:

17 OCTOBER 2008

WHERE MADE:

SYDNEY

THE COURT:

1Declares that each of the fifth, sixth and seventh respondents, by reason of the stoppages of work at the Lake Cowal gold mine between 6.30 am on 15 October 2005 and 6.30 am on 18 October 2005 and between 11.00 am on 10 November 2005 and 6.30 am on 11 November 2005, contravened s 38 of the Building and Construction Industry Improvement Act 2005 (Cth).

2Declares that each of the fifth and sixth respondents, by…

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AGLC
Alfred v Wakelin (No. 2) [2008] FCA 1543
Case
[2008] FCA 1543
Decision Date

CaseChat Overview and Summary

The case of Alfred v Wakelin (No. 2) involved the Australian Workers Union (AWU) and Mr. Alfred, a construction worker employed by John Holland at a gold mine owned by Barrick Australia Limited. The dispute centered around the interpretation and application of the Building and Construction Industry Improvement Act 2005 (BCII Act) and the certified agreement between John Holland, the AWU, and other unions. Specifically, the court had to determine whether Mr. O’Connor, a delegate and officer of the AWU, could be held liable under the BCII Act for actions taken in his capacity as a union representative, despite his actual authority under the union's rules and the certified agreement.

The primary legal issues were whether Mr. O’Connor's actions, which contravened the BCII Act, could be attributed to the AWU under the extended liability provisions of the legislation, and whether the AWU could rely on the certified agreement to limit its liability. The court needed to consider the principles of accessorial liability, apparent authority, and whether the union could be held accountable for actions taken by its representatives outside the scope of the certified agreement.

The court held that the AWU could be held liable under the BCII Act for Mr. O’Connor’s actions, despite his actual authority under the union's rules and the certified agreement. The court found that the AWU failed to address the facts of the case in the context of the extended liability provisions of the legislation. Instead, the AWU focused on Mr. O’Connor’s actual authority, which did not negate the possibility of accessorial liability. The court noted that to establish apparent authority, there must be circumstances that would justify a belief that the union representative was acting with authority, and that such authority must come from the union itself. Furthermore, the court found that the certified agreement did not limit the union's liability under the BCII Act.

The court's reasoning underscored the importance of considering the broader context of the legislation and the facts of the case, rather than solely focusing on the union's internal rules and agreements. The outcome of the case reinforces that unions can be held accountable for actions taken by their representatives under the BCII Act, even if those actions fall outside the scope of the certified agreement. The court's decision highlights the need for unions to ensure that their representatives act within the bounds of the law and the principles of good faith and cooperation as outlined in the certified agreements.

Orders

Orders of the court

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Background

Background to the litigation

Section 4(8) also provides that:In this act, a reference to engaging in conduct includes a reference to being, whether directly or indirectly, a party to or concerned in the conduct. FACTS Certain facts were agreed as between the applicant and the AWU (and were otherwise proved as against Mr O’Connor). The AWU is an organisation of employees registered under Sch 1B of the Workplace Relations Act and a building association within the meaning of s 4 of the BCII Act. John Holland is a construction company. Barrick Australia Limited is the owner of the gold mine near Lake Cowal. Barrick engaged John Holland to carry out a construction project at the mine comprising civil, structural, mechanical and piping works. This was building work within the meaning of the BCII Act (s 5). John Holland, the AWU and John Holland’s employees (including Mr O’Connor) were building industry participants within the meaning of that Act (s 4). Mr O’Connor was an employee of John Holland at the Lake Cowal Gold Mine. Mr O’Connor was also a member, delegate and officer within the meaning of s 69(3) of the BCII Act of the AWU (the national body and the New South Wales branch). John Holland, the AWU, the Construction, Forestry, Mining and Energy Union (the CFMEU) and Australian Manufacturing Workers Union (AMWU) were each parties to a certified agreement (John Holland Engineering Pty Ltd New South Wales – SMP Certified Agreement 2005) made under Div 2 of Pt VIB of the Workplace Relations Act. The certified agreement had a nominal expiry date of 31 March 3006. Relevant provisions of the certified agreement include cll 3, 10(d) and 13 which are as follows:3.PARTIES TO THE AGREEMENT AND APPLICATIONThis Agreement shall be binding upon:(i) John Holland Engineering Pty Ltd.----SMP.(ii)All employees, whether members of the organisation of employees listed in paragraph (iii) and (iv) hereof or not, engaged in any of the occupations, industries or callings specified in the National Metal and Engineering On-Site Construction Industry Award, 2002;(iii)The Automotive, Food, Metals, Engineering, Printing & Kindred Industries Union;(iv)Australian Workers Union(v)The Construction, Forestry, Mining and Energy Union(vi)The scope of this Agreement is limited to engineering work within a 100km radius of West Wyalong.10.MEANS OF ACHIEVING OBJECTIVES…(d)Dispute Settlement ProceduresThe parties to this Agreement recognise that the objectives of these procedures are to speedily resolve disputes by consultation, cooperation and discussion; to eliminate industrial confrontation; and thereby avoid interruption to the performance of work and consequential loss of production and wages. In the event of any dispute:(i)The employee(s) concerned shall in the first place raise the matter with their immediate supervisor/foreperson.(ii)If the matter is not settled at this level, the employees may seek the assistance of the duly appointed employee’s representative, who shall:(iia) again raise the matter with the employee’s immediate supervisor/foreperson. If the matter is still not settled at this level, the employee’s representative shall then;(iib) raise the matter with the Company’s Project manager or representative. If agreement is not reached at this level, the employee’s representative shall then;(iic) be provided with telephone facilities to speak to an official of the relevant Union and request representation for a further conference to be held at a date and time mutually acceptable.(iii)Should negotiations as prescribed above fail, the matter should be referred to Senior Management and to the State Secretary of the Union involved, at which level a conference of the parties shall be convened without delay.(iv)While emphasis shall be placed on a negotiated settlement, the matter is not resolved, the parties shall jointly or individually refer this matter to the Australian Industrial Relations Commission for assistance in resolving the dispute.Whilst the above procedure is being effected, work should continue as per the status quo and no party shall be prejudiced as to final settlement by the continuance of work in accordance with this clause. For the purposes of this clause the status quo means the circumstances that existed prior to the introduction of the change that caused the dispute.13.SAFETYThe parties to this Agreement agree to adopt the following principles as a sole guide to handling safety issues:(i)that all employees shall act in good faith and co-operate to find or create a safe environment so that work may continue;(ii)that should a portion of a project be affected by safety issues, all other employees not so affected shall continue to work;(iii)that should a portion of a project be affected by safety issues, employees so affected shall accept transfer to another work location on the site that is within the scope of the employees’ skill, competency and the flexibility provisions as contained within the scope of the parent award.(iv)that employees shall accept the use of protective clothing where that will allow work to continue safely;

Evidence

Evidence Before The Court

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Decision

Reasons for decision

JAGOT J
As certain observations in other decisions disclose, the main difficulty with the AWU’s submissions is that they focused on Mr O’Connor’s actual authority under the AWU rules and the certified agreement rather than dealing with the facts of the case in the context of the extended liability provisions of the legislation in issue.Some relevant decisions The following observations in other decisions are relevant to the AWU’s submissions:(1)Accessorial liability “depends upon the accessory associating himself or herself with the contravening conduct - the accessory should be linked in purpose with the perpetrators” (Construction, Forestry, Mining and Energy Union v Clarke (2007) 164 IR 299; [2007] FCAFC 87 at [26]).(2)“To establish apparent authority, it is not sufficient to show merely that an “officer, director, employee or agent” held himself or herself out as having authority: see J-Corp Pty Ltd v Australian Builders Labourers Federated Union of Workers – Western Australian Branch (1992) 111 ALR 502 at 533–4 per French J. Rather, there must at least be circumstances which would justify a belief on the part of a person dealing with the “officer, director, employee or agent” that that “officer, director, employee or agent” is acting with authority” (Hanley v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (2000) 100 FCR 530; [2000] FCA 1188 at [79]).(3)Apparent authority is usually created by representations from conduct,…that is, by permitting the agent to act in some way in the conduct of the principal’s business with other persons. By so doing the principal represents to anyone who becomes aware that the agent is so acting that the agent has authority to enter on behalf of the principal into contracts with other persons of the kind which an agent so acting in the conduct of his principal’s business has usually ‘actual’ authority to enter into.(Freeman & Lockyer (a firm) v Buckhurst Park Properties (Mangal) Ltd [1964] 2 QB 480 at 502–3 cited in Essington Investments Pty Ltd v Regency Property Pty Ltd [2004] NSWCA 375 at [3] and [39]).(4)Further:It is not enough that the representation should come from the officer alone. Whether the representation is general, or related specifically to the particular transaction, it must come from the principal, the company. That does not mean that the conduct of the officer is irrelevant to the representation, but the company’s conduct must be the source of the representation. In many cases the representational conduct commonly takes the form of the setting up of an organisational structure consistent with the company’s constitution. That structure presents to outsiders a complex of appearances as to authority. The assurance with which outsiders deal with a company is more often than not based, not upon inquiry, or positive statement, but upon an assumption that company officers have the authority that people in their respective positions would ordinarily be expected to have. In the ordinary case, however, it is necessary, in order to decide whether there has been a holding out by a principal, to consider the principal’s conduct as a whole.(Pacific Carriers Ltd v BNP Paribas (2004) 218 CLR 451 at [36] also cited in Essington Investments [2004] NSWCA 375 at [5]).(5)It cannot be the case that action in breach of the law can never be attributed to a union despite the fact that union rules are most unlikely to permit such action (The Employment Advocate v National Union of Workers (2000) 100 FCR 454; [2000] FCA 710 at [121]. See also Hanley (2000) 100 FCR 530; [2000] FCA 1188 at [83] – [84]).(6)Toohey J in Trade Practices Commission v Tubemakers of Australia Ltd (1983) 47 ALR 719 at 742 was also cited in Hanley (2000) 100 FCR 530; [2000] FCA 1188 at [83] as follows:It may be assumed to be an implied term in every contract of employment that the servant or agent will not act unlawfully. And that will have consequences between employer and employee. Yet unlawful conduct has not been held inevitably to be outside the scope of employment.On the contrary, if a servant or agent has authority to enter into transactions of the sort in question, it is no answer for a principal to say that in the particular circumstances the servant or agent acted wrongfully: Australasian Brokerage Ltd v Australia and New Zealand Banking Corporation Ltd (1934) 52 CLR 430 at 451–2.(7)The majority in Essington Investments [2004] NSWCA 375 also said:[44] It is to be noted that the representation of authority must either be made, or at least be permitted to be made, by the principal. In the present case, all the relevant representations were made by the agent, so that the real question is whether they were themselves authorised by the principal and so made by the principal, or were relevantly “permitted” to be made by the principal.[45] In my opinion, one circumstance in which it may be said that representations are permitted to be made is where a principal knows that an agent engaged on the principal’s behalf is making representations as to the agent’s authority, is able to prevent such representations being made or countermand them, but does not do so. There is arguably, in these circumstances, something like a representation by silence: the circumstances call for some action by the principal to ensure that persons are not misled by the agent, and the principal does not take that action.The factual context

Ratio Decidendi

Legal Principle Established

Established by: JAGOT J

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