Australian Building and Construction Commissioner v Abbott

[2011] FCA 306

FEDERAL COURT OF AUSTRALIA

Australian Building and Construction Commissioner v Abbott [2011] FCA 306

Citation:		Australian Building and Construction Commissioner v Abbott [2011] FCA 306
Parties:		AUSTRALIAN BUILDING AND CONSTRUCTION COMMISSIONER v BENJAMIN ABBOTT AND THE PARTIES IN THE ATTACHED SCHEDULE 1
File number:		WAD 230 of 2008
Judge:		GILMOUR J
Date of judgment:		31 March 2011
Catchwords:		INDUSTRIAL LAW –no case to answer submission by respondent – evidence – unlawful industrial action – accessorial liability
Legislation:		Building and Construction Industry Improvement Act 2005 (Cth) ss 38, 48(2)(a)-(d)
Cases cited:		Cahill v Construction Forestry Mining and Energy Union (No 2) [2008] FCA 1292 Construction Forestry Mining and Energy Union v Clarke (2007) 164 IR 299
Date of hearing:	30 March 2011
Place:	Perth
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	17
Counsel for the Applicant:	Mr K Pettit
Solicitor for the Applicant:	Clayton Utz
Counsel for the 218th & 219th Respondents:	Ms K A Vernon
Solicitor for the 218th & 219th Respondents:	Construction Forestry Mining & Energy Union
Counsel for the Respondents in attached Schedule 1:	Mr R L Hooker
Solicitor for the Respondents in attached Schedule 1:	Gibson & Gibson
Counsel for the 221st Respondent:	Mr R E Lindsay
Solicitor for the 221st Respondent:	Corser & Corser

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION	WAD 230 of 2008

BETWEEN:

AUSTRALIAN BUILDING AND CONSTRUCTION COMMISSIONER
Applicant

AND:

BENJAMIN ABBOTT
First Respondent

THE PARTIES IN THE ATTACHED SCHEDULE 1
Third Respondent to Two Hundred & Twenty Second Respondents

JUDGE:	GILMOUR J
DATE:	31 MARCH 2011
PLACE:	PERTH

RULING ON NO CASE SUBMISSION BY 106^TH RESPONDENT

1. The 106^th respondent, Mark Johnson, has made a submission that he has no case to answer.  This was made soon after the applicant closed its case and before any respondent called evidence.  A similar no case submission advanced on behalf of the AMWU was withdrawn.  Mr Johnson, as he is entitled to do in a civil penalty case, has formally elected not to give or call evidence. 

2. It is not in doubt that the Court has power to hear and determine such a submission: Cahill v Construction Forestry Mining and Energy Union (No 2) (2008) ALR 223 at [2] and the cases there cited.

3. Mr Johnson was, admittedly, at all material times relevantly a member of the AMWU and a delegate of that Union and dealt with his employer CBI Construction Pty Ltd (CBI) in that capacity.

4. This proceeding concerns alleged unlawful industrial action in October 2008 at the Phase V Expansion Project on the Burrup Peninsula in Western Australia.  CBI was under contract to Woodside Energy Limited in respect to that Project.  The employees who took industrial action were CBI employees.  Some were members of the AMWU, others were members of the CFMEU.

5. The applicant, the Australian Building and Construction Commissioner alleges in the most recent iteration of his statement of claim that Mr Johnson contravened s 38 of the Building and Construction Industry Improvement Act 2005 (Cth) (BCII Act) which prohibits a person from engaging in unlawful industrial action. Declarations and pecuniary penalties are sought against him.

6. Apart from allegations of contravention, in his capacity as a CBI employee, it is also relevantly alleged (Statement of Claim (SOC) [65] that he has accessorial liability as having been knowingly concerned in or party to part of the unlawful industrial action in October 2008, and thereby contravened s 38(1) BCII Act.

7. This plea, so far as concerns Mr Johnson, is founded upon the allegations in SOC [26-29].  I have set them out below.  I have prefaced them with the pleading in which sets out what is the pleaded “Claim” and “Threat”.

   21.On 1 October 2008, Windus accompanied by Upton:

   (a)represented to CBI that the Phase V Expansion Project had been completed (Representation);

   (b)demanded that CBI:

   (i)terminate the employment of the Employee Respondents covered by the AMWU Collective Agreement,

   (ii)pay out their consequential redundancy entitlements taxed at concessional rates and

   (iii)re-employ them for the S6 and VRL packages (Claim); and

   (c)threatened that those Employee Respondents would take industrial action if CBI did not meet the Claim (Threat).

   Particulars

   The Representation, the Claim and the Threat were made orally by Windus to Luskan and Guyer at the CBI premises in Karratha.

   . . .

   26.On 13 October 2008, Upton, Johnson and Brown convened a meeting of a number of the Employee Respondents at the CBI site gate in Karratha.

   27.Upton addressed that meeting in respect of the Claim and the Threat.

   28. Later on 13 October 2008, at a meeting of Upton, Johnson and Brown with Luskan, Marcano and Stuurstraat:

   (a)Upton orally repeated the Claim;

   (b)Brown orally repeated the Claim;

   (c)Brown orally repeated the Representation;

   (d)Upton orally repeated the Threat; and

   (e)Upton stated that the Threat would be implemented by the Employee Respondents refusing to attend work for one week, returning to work for one day, then refusing to work for another week unless the Claim was met by CBI (Statement).

   29.At that meeting, Upton, Johnson and Brown each, by his conduct, made the Representation, the Claim, the Threat and the Statement.  Their conduct included their attendance at the meeting in association with each other and their failure to disassociate themselves or the AMWU or CFMEU respectively from what was said by Upton and Brown.

8. The evidence of Kelly Luskan, the CBI Administration Manager, was that Mr Johnson was present at a meeting at around 7.30 am on 13 October 2008 that also involved herself, the Project Manager Mr Marcano, the Construction Manager Mr Stuurstraat, two CFMEU officials Mr Brown and Mr Upton.  She said that “everybody was pretty well putting in their own two bobs worth sort of thing.  Everyone was yelling and screaming”.  However, she gave no evidence of any specific statement made by Mr Johnson.  Mr Peter Stuurstraat likewise did not give evidence of anything said by Mr Johnson at that meeting.

9. Mr Stuurstraat gave evidence of a brief meeting with Mr Brown and Mr Johnson in the wet mess of the Bay Village accommodation in Karratha later on 13 October 2008.  He said that he handed the notice, which was the application initiating proceedings in the Australian Industrial Relations Commission (AIRC), to Mr Johnson, who then asked “well how are we going to fly all these people to Perth to go to court”.  Mr Stuurstraat’s said to Mr Johnson “that at the moment he (Johnson) is the only one who would be required to go if there was anything to happen because he is representing those guys” although he later acknowledged in chief that he was not confident of his recollection of what was said, or exactly what was said in that conversation.

10. I accept that there is no evidence that Mr Johnson convened the 13 October 2008 meeting of CBI employees as pleaded at SOC [26] or that he attended it.

11. As to the meeting with CBI management later in the morning of 13 October 2008, counsel for Mr Johnson submits that nothing in the evidence of what happened at that meeting provides any foundation for a finding that he was knowingly concerned in or party to the relevant October industrial action that occurred from 14 October 2008. Specifically, he submits that there is no evidence of any assertion, utterance, act or conduct on the part of Mr Johnson that could tenably be said to constitute a “making” of the Representation, the Claim or the Threat, or of the Statement, as pleaded at SOC [29].

12. What is necessary for accessorial liability to be made out was set out by a Full Court of this Court in Construction Forestry Mining and Energy Union v Clarke (2007) 164 IR 299 at [26] as follows:

    Regardless of the precise words of the accessorial provision, such liability depends upon the accessory associating himself or herself with the contravening conduct – the accessory should be linked in purpose with the perpetrators (per Gibbs CJ in Giorgianni v The Queen (1985) 156 CLR 473 at 479-480; see also Mason J at 493 and Wilson, Deane and Dawson JJ at 500). The words “party to, or concerned in” reflect that concept. The accessory must be implicated or involved in the contravention (Ashbury v Reid [1961] WAR 49 at 51; R v Tannous (1987) 10 NSWLR 303 per Lee J at 307E-308D (agreed with by Street CJ at 304 and Finlay J at 310) or, as put by Kenny J in Emwest Products Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (2002) 117 FCR 588 at [34], must participate in, or assent to, the contravention.

13. Counsel for Mr Johnson submits that there is no evidence of any positive act of involvement or actual association, by Mr Johnson.  He submits that here, there is no evidence of Mr Johnson undertaking any conduct, or having any involvement, beyond:

    (a)his mere existence at the meeting with CBI management of 7.30 am on 13 October 2008; and

    (b)receiving the application for the AIRC proceedings from Mr Stuurstraat and posing a query about how large numbers of employees could be flown for appearing.

14. The concluding submission on behalf of Mr Johnson is that none of that evidence is capable of sourcing findings of fact that Johnson, with knowledge of the essential elements of the other respondents’ October industrial action, did or omitted to do any of the things within the ambit of s 48(2)(a)-(d) of the BCII Act.

15. Accepting that the case against Mr Johnson is not in respect to all of the October industrial action, nonetheless, I do not accept his no case submission.  The evidence discloses that Mr Johnson, on the same day and shortly after a meeting on 13 October 2008 of CBI employees, including members of the AMWU, attended the meeting with Marcano, Stuurstraat, Brown and Upton.  He was there, on his pleaded admission, as an AMWU delegate.  The evidence of Marcano, if accepted, is capable of supporting a finding that Mr Upton in Mr Johnson’s presence and hearing made the “Threat” alleged by the applicant [SOC 21(c)] in relation to the Claim [SOC 21(b)].  Mr Johnson did not, so far as concerns the AMWU, seek to disavow or in any way qualify the Threat.  Moreover, the Threat, including as it did members of the AMWU, was put into effect the following day.  Marcano’s evidence is capable, if accepted, of proving that Johnson associated himself with the Claim and the Threat made at the instance, it might be inferred, not only of the CFMEU but also the AMWU and in particular by Johnson on its behalf.  It is open on the evidence of Marcano to conclude that Upton, Johnson and Brown attended the 13 October meeting with Marcano and Stuurstraat with a unified purpose namely to make the Threat on behalf of the CBI employees who were members of the CFMEU and the AMWU.

16. I am satisfied that, in the circumstances, Mr Johnson’s conduct as I have described it, as open on the evidence, is sufficient arguably to render him liable as an accessory to the relevant alleged unlawful industrial action under either or both of the limbs pleaded at SOC [65].

17. I would for these reasons reject the no case submission.

I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gilmour.

Associate:

Dated:        31 March 2011

SCHEDULE 1 – THE RESPONDENTS

MURRAY ARCARO
Third Respondent

MOSES ASIATA
Fourth Respondent

SERGIO BAEZ
Sixth Respondent

FRANCISCO BARRAZA
Ninth Respondent

ROLAND BAZAEZ
Twelfth Respondent

LEON BECKER
Thirteenth Respondent

PATRICK BIRD
Sixteenth Respondent

TERRANCE BISHOP
Seventeenth Respondent

ROMEO BONCATO
Nineteenth Respondent

DARREN BOXALL
Twentieth Respondent

ROBERT BROWN
Twenty-Fifth Respondent

SLAVO CEKLIC
Twenty-Eighth Respondent

KIM CHENNELL
Twenty-Ninth Respondent

JASON CHROMIAK
Thirty-First Respondent

ROBERT CLARK
Thirty-Second Respondent

DAVID COLLINS
Thirty-Fourth Respondent

DONALD COLYER
Thirty-Fifth Respondent

CHRIS CORRIGAN
Thirty-Seventh Respondent

ALLAN COUTTS
Thirty-Eighth Respondent

LANCE CRONIN
Thirty-Ninth Respondent

ANDREW CROSIER
Fortieth Respondent

RENEE CUMBERS
Forty-First Respondent

KENNETH CUMMING
Forty-Second Respondent

ALASTAIR CUNLIFFE
Forty-Third Respondent

AIDEN DAVEY
Forty-Fifth Respondent

SCOTT DEVINE
Forty-Ninth Respondent

CLAUDE DEVOS
Fiftieth Respondent

JOHN DICKSON
Fifty-First Respondent

NORMAN DODGIN
Fifty-Third Respondent

DANIEL DOYLE
Fifty-Fifth Respondent

MATT DRUMMOND
Fifty-Sixth Respondent

JOHANNES DUPLESSIS
Fifty-Ninth Respondent

WARWICK FAULKNER
Sixty-Fourth Respondent

VICTOR FAUSTINO
Sixty-Fifth Respondent

JOSE FERREIRA
Sixty-Seventh Respondent

GEORGE FITZROY
Seventy-First Respondent

DAVID FRASER
Seventy-Second Respondent

SALVATORE FRONTE
Seventy-Third Respondent

PETER GARDINER
Seventy-Fifth Respondent

LOUIE GEROVICH
Seventy-Eighth Respondent

SIMON GILBERT
Eighty-Second Respondent

TAY GOODALL
Eighty-Third Respondent

DUANE GUYATT
Eighty-Eighth Respondent

JOHN HARVEY
Ninetieth Respondent

QUINTON HEBBARD
Ninety-First Respondent

ROBERT HOLT
Ninety-Fourth Respondent

STEPHEN HONICKE
Ninety-Fifth Respondent

ANDREW HORNBY
Ninety-Sixth Respondent

CHRISTOPHER HOWARD
Ninety-Seventh Respondent

VINCENT HOWES
Ninety-Eighth Respondent

NIKOLA IVKOVIC
One Hundred and Third Respondent

DENIS JACKSON
One Hundred and Fourth Respondent

MARK JOHNSON
One Hundred and Sixth Respondent

RICHARD JONES
One Hundred and Seventh Respondent

RAYMOND JONES
One Hundred and Eighth Respondent

TURIPI KARUTJINDO
One Hundred and Tenth Respondent

EMIN KECAP
One Hundred and Eleventh Respondent

SHAUN KEILY
One Hundred and Twelfth Respondent

LENKO KORLJAN
One Hundred and Thirteenth Respondent

DARRIN LANE
One Hundred and Fifteenth Respondent

SHANE LAVELLE
One Hundred and Sixteenth Respondent

CHRISTINE LEAHY
One Hundred and Seventeenth Respondent

CHARLIE LINESS
One Hundred and Eighteenth Respondent

CLIFFORD LOGAN
One Hundred and Nineteenth Respondent

KENNETH LOGAN
One Hundred and Twentieth Respondent

DONALD MACKAY
One Hundred and Twenty-Third Respondent

JAMES MANN
One Hundred and Twenty-Fourth Respondent

DENIS MARRINER
One Hundred and Twenty-Sixth Respondent

GHEORGHE MATEIU
One Hundred and Twenty-Seventh Respondent

GREGORY MCCARTHY
One Hundred and Thirtieth Respondent

PAUL MCGEADY
One Hundred and Thirty-First Respondent

RUSSELL MCGHIE
One Hundred and Thirty-Second Respondent

JOSEPH MCGRANE
One Hundred and Thirty-Third Respondent

ALASTAIR MCGUIRE
One Hundred and Thirty-Fourth Respondent

ALAN MCKENZIE
One Hundred and Thirty-Fifth Respondent

DEAN MEDLAND
One Hundred and Thirty-Seventh Respondent

BRAD MILLER
One Hundred and Thirty-Eighth Respondent

ROBERT MITCHELL
One Hundred and Fourtieth Respondent

PASKO MITRESKI
One Hundred and Forty-First Respondent

CHRISTOPHER MOORE
One Hundred and Forty-Third Respondent

LEONARD MUDRI
One Hundred and Forty-Fourth Respondent

DARREN NEWBY
One Hundred and Forty-Sixth Respondent

JAMIE NICOLAOU
One Hundred and Forty-Seventh Respondent

JAMES ODIAM
One Hundred and Forty-Eighth Respondent

BRIAN OTTAWAY
One Hundred and Fifty-First Respondent

MANDY-LEE PALMER
One Hundred and Fifty-Second Respondent

KEN PAYNE
One Hundred and Fifty-Fifth Respondent

LOUISE PFITZNER
One Hundred and Fifty-Eighth Respondent

RICHARD PHILLIPS
One Hundred and Fifty-Ninth Respondent

SHEREE PIKE
One Hundred and Sixtieth Respondent

JOE PIZZO
One Hundred and Sixth-Second Respondent

JOHN PRATT
One Hundred and Sixty-Third Respondent

DAVID ROSSITER-MCLAREN
One Hundred and Seventieth Respondent

PHILLIP ROWELL
One Hundred and Seventy-First Respondent

TOM SABINE
One Hundred and Seventy-Third Respondent

MICHAEL SANDERS
One Hundred and Seventy-Fifth Respondent

ANTON SAXER
One Hundred and Seventy-Seventh Respondent

KEITH SHIELD
One Hundred and Eighty-First Respondent

DALE SHIRTLIFF
One Hundred and Eighty-Second Respondent

DUSKO SOBOT
One Hundred and Eighty-Fifth Respondent

GRAEME SOWDEN
One Hundred and Eighty-Seventh Respondent

BRAD SPARK
One Hundred and Eighty-Eighth Respondent

JUSTIN STUURSTRAAT
One Hundred and Ninety-Second Respondent

WAYNE SUTHERLAND
One Hundred and Ninety-Third Respondent

ALLAN TAMAPUA
One Hundred and Ninety-Fourth Respondent

KEN THACH
One Hundred and Ninety-Fifth Respondent

MICHAEL TICEHURST
One Hundred and Ninety-Sixth Respondent

NEIL TOLLISON
One Hundred and Ninety-Seventh Respondent

BRYAN TONKIN
One Hundred and Ninety-Eighth Respondent

JOHN TUIVASA
Two Hundredth Respondent

GREG UCHWAL
Two Hundred and First Respondent

PETER VARIAKOJIS
Two Hundred and Second Respondent

MAREE WAINMAN
Two Hundred and Third Respondent

MITCHELL WEIR
Two Hundred and Fourth Respondent

MICHAEL WRIGHT
Two Hundred and Sixth Respondent

LESLEY YOUNG
Two Hundred and Eighth Respondent

PERO ZUVELA
Two Hundred and Ninth Respondent

CONSTRUCTION FORESTRY MINING AND ENERGY UNION
Two Hundred and Eighteenth Respondent

BRADLEY UPTON
Two Hundred and Nineteenth Respondent

AUTOMOTIVE FOOD METALS ENGINEERING PRINTING AND KINDRED INDUSTRIES UNION
Two Hundred and Twentieth Respondent

JOHN WINDUS
Two Hundred and Twenty-First Respondent

ANDREW HOLDSWORTH
Two Hundred and Twenty-Second Respondent