Australian Building & Construction Commissioner v Abbott (No 4)

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FEDERAL COURT OF AUSTRALIA

Australian Building & Construction Commissioner v Abbott (No 4)
[2011] FCA 950

Citation: Australian Building & Construction Commissioner v Abbott (No 4) [2011] FCA 950
Parties: AUSTRALIAN BUILDING AND CONSTRUCTION COMMISSIONER v BENJAMIN ABBOTT AND THE PARTIES IN ATTACHED SCHEDULE 1
File number: WAD 230 of 2008
Judge: GILMOUR J
Date of judgment: 22 August 2011
Catchwords:

INDUSTRIAL LAW – unlawful industrial action – whether there were contraventions by union officials – liability – whether breach of s 38 Building and Construction Industry Improvement Act 2005 – whether breach of Collective Agreements.

PRACTICE AND PROCEDURE – statement of claim – sufficiency of pleadings.

Legislation:

Building and Construction Industry Improvement Act 2005 (Cth) ss 9, 36, 37, 38, 48, 49, 69, 73
Workplace Relations Act 1996 (Cth) ss 328, 347, 351, 440, 494, 496, 717, 718, 719, 727, 728, 735, 760, 826(2)
Fair Work Act 2009 (Cth)
Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) s 3, Sch 2 item 11(1), Sch 18, Part 3, Item 13(1) and (2)
Evidence Act 1995 (Cth) ss 102, 106, 140(2), 190(3)
Trade Practices Act 1974 (Cth) s 75B
Broadcasting Services Act 1992 (Cth) s 160
Cases cited: Amcor Ltd v Construction, Forestry, Mining and Energy Union (2005) 222 CLR 241
Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v John Holland Pty Ltd (2008) 180 IR 350
Bell v Minister for Health [2006] FCA 134
Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1
Browne v Dunn (1893) 6R 67 (HL)
CBI Contractors Pty Ltd v Abbott (No 2) [2009] FCA 1129
CEPU v QR Ltd (2010) 268 ALR 514
Compaq Computer Australia Pty Ltd v Merry, Howard & Ors (1998) 157 ALR 1
Giorgianni v R (1985) 156 CLR 473
Jones v Dunkel (1959) 101 CLR 298
Kucks v CSR Ltd (1996) 66 IR 182
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
QR Ltd v CEPU [2010] FCAFC 150
Quinlivan v Australian Competition and Consumer Commission (2004) 160 FCR 1
Reeves v MaxiTRANS Australia Pty Ltd (2009) 188 IR 297
Sent & Petres & Collier v Jet Corporation of Australia Pty Ltd (1984) 2 FCR 201
Van Efferen v CMA Corporation Ltd (2009) 183 IR 319
Yorke v Lucas (1985) 158 CLR 661
Date of hearing: 29-31 March, 1 April, 11 April 2011
Place: Perth
Division: GENERAL DIVISION
Category: Catchwords
Number of paragraphs: 269
Counsel for the Applicant: Mr K Pettit SC
Solicitor for the Applicant: Clayton Utz
Counsel for the 218th and 219th Respondents: Ms K A Vernon
Solicitor for the 218th and 219th Respondents: Construction, Forestry, Mining & Energy Union
Counsel for the 106th and 220th Respondents: Mr R L Hooker
Solicitor for the 106th and 220th Respondents: 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…

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Details
Case
[2011] FCA 950
Decision Date

CaseChat Overview and Summary

The Australian Building & Construction Commissioner (Commissioner) brought proceedings against a number of employees, the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU), and the Australian Manufacturing Workers' Union (AMWU) for unlawful industrial action. The AMWU and the CFMEU were charged with accessory liability under the Building and Construction Industry Improvement Act 2005 (BCII Act). The Commissioner also alleged that the AMWU had breached a section of the Workplace Relations Act 1996 (WR Act). The court had to decide whether there were contraventions by union officials and whether they breached certain sections of the BCII Act and the WR Act. The court found that the AMWU was not disinclined to attend to the requirements directly imposed on it by the Australian Industrial Relations Commission Order. It was found that the CFMEU and the AMWU had taken unlawful industrial action. The court also found that the AMWU, through the conduct of Johnson, breached a section of the WR Act. The Commissioner's application for leave to adduce rebuttal evidence was rejected. The court found that the Commissioner could not expand his case unless an amendment to that effect was sought and granted. The Commissioner had been permitted to amend his statement of claim but he had not sought an amendment. The court found that it would be unfair to the respondents to allow the Commissioner any latitude in this respect. The court directed the parties to bring in a minute of proposed declarations and orders within 14 days to reflect the conclusions contained in these reasons and failing agreement there will be liberty to the parties to apply. The court also heard the parties on the question of costs.

Orders

Orders of the court

1. The parties within 14 days will seek to bring in a minute of declarations and orders to reflect the reasons for judgment, failing which the parties have liberty to apply.

2. The parties have liberty to apply in relation to the question of costs.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

TABLE OF CONTENTS AND PERSONNEL

The Application........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .....

[1]

People in the case........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ..

[4]

Background........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ...

[6]

The Legislation........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ......

[13]

The BCII Act........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .....

[13]

The Workplace Relations Act........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ...

[16]

Standard of proof........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ...

[27]

The redundancy issue........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ...

[32]

Knowledge of redundancy issue pre-1 October 2008........ ........ ........ ........ ........ ........ ........ ..

[35]

CBI employees meeting - 1 October 2008........ ........ ........ ........ ........ ........ ........ ........ .......

[46]

Meeting with CBI officers – 1 October 2008........ ........ ........ ........ ........ ........ ........ ........ .......

[47]

1 - 13 October 2008........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ...

[59]

Upton and CFMEU........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ..

[60]

Windus and the AMWU........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ....

[62]

CBI employees meeting – 13 October 2008........ ........ ........ ........ ........ ........ ........ ........ ........

[68]

Upton........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .

[69]

Brown........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........

[76]

Johnson........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .....

[77]

Meeting with CBI officers 13 October 2008........ ........ ........ ........ ........ ........ ........ ........ ........

[79]

The pleading........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ......

[99]

Windus’ knowledge - 13 October 2008........ ........ ........ ........ ........ ........ ........ ........ ........ ........

[102]

Application to admit rebuttal evidence........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .

[111]

Meeting of CBI employees - 14 October 2008........ ........ ........ ........ ........ ........ ........ ........

[116]

The pleading........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ......

[117]

AIRC hearing and orders........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .

[121]

Evening of 14 October 2008........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .....

[123]

Return to work on 15 October 2008........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .

[135]

The pleading........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ......

[140]

Letter of 16 October 2008........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........

[141]

Morning of 17 October 2008........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ....

[144]

The pleading........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ......

[151]

20 October 2008........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........

[152]

22 October 2008........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........

[153]

24 October 2008........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........

[158]

Role of Upton, Brown, Johnson and Windus........ ........ ........ ........ ........ ........ ........ ........ .......

[163]

Upton........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .

[163]

Brown........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........

[164]

Johnson........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .....

[174]

Windus........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .......

[175]

Accessorial liability........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .......

[179]

Conduct of the employees........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .

[180]

Section 48 of the BCII Act........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .......

[181]

Section 728 WR Act........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ..

[195]

Section 69 of the BCII Act........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .......

[196]

Section 826(2) of the WR Act........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ...

[217]

Section 826(2)(a)........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .......

[218]

Actual or apparent authority........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ....

[219]

Conduct “on behalf of” an organisation........ ........ ........ ........ ........ ........ ........ ........ ........ .

[222]

Section 826(2)(b) of the WR Act........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .......

[223]

Alleged breaches and pleading........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .....

[227]

Unlawful industrial action: s 38 BCII Act........ ........ ........ ........ ........ ........ ........ ........ ........ ....

[228]

Windus and the AMWU........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ....

[230]

Johnson and the AMWU........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ..

[232]

Holdsworth and the AMWU........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .....

[234]

Upton and CFMEU........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ..

[236]

Brown and CFMEU........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ..

[238]

Industrial action before nominal expiry of agreement: s 494 WR Act........ ........ ........ .......

[239]

Breach of issue resolution procedure and s 719 of WR Act........ ........ ........ ........ ........ .......

[244]

Breach of Order of AIRC – s 496(10) WR Act........ ........ ........ ........ ........ ........ ........ ........ ...

[257]

Upton and CFMEU........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ..

[260]

Windus and AMWU........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ..

[262]

Conclusions........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ....

[266]

People in the case

Brown – Robert: 25th Respondent, building employee and industry participant, CBI employees representative

Clarke – Tony: Site Industrial Relations Manager of FWW

Duffy – Andrew: President AMWU WA Branch

Guyer – John: CBI Construction Manager

Holdsworth – Andrew Cecil: AMWU Organiser

Johnson – Mark Anthony: 106th Respondent and AMWU delegate

Luskan – Kelly Joyce: CBI Administration Manager

Macaree – Stuart Kenneth: CBI Employee and Industrial Relations Manager

Marcano – Jose: CBI Project Manager

McCartney – Steven James: WA State Secretary of AMWU

Pooley – Alice: Journalist

Starling – Andrew Colin: CBI Senior Superintendent

Stuurstraat – Peter: CBI Construction Manager

Upton – Bradley John: 219th Respondent and CFMEU delegate

Windus – John Anthony: 221st Respondent and AMWU organiser

Background

Background to the litigation

The Commissioner does not proceed against the following nine (9) Employee Respondents for breach of an order of the AIRC, but does proceed on all other causes of action.(1) Rolando Bazaez, respondent 12;(2) Johannes Duplessis, respondent 59;(3) Duane Guyatt, respondent 88;(4) Robert Holt, respondent 94;(5) Darrin Lane, respondent 115;(6) Gheorghe Mateiu, respondent 127;(7) Pasko Mitreski, respondent 141; and (8) Maree Wainmann, respondent 203.Background The case concerns building and construction work associated with the Woodside Energy Ltd gas production facilities on the Burrup Peninsula (the Site) in Western Australia. CBI was under contract with Woodside to provide mechanical construction services at the Site. Work by CBI was under the management of Foster Wheeler Working Persons Joint Venture (FWW). The work on the gas production facilities had gone through several phases. The most recent was called “Phase V Expansion Project” (Phase V). There were two work packages called a "vapour return line" (VRL) and a Stabiliser 6. It was the work on those two packages that was interrupted as a result of the unlawful industrial action. The catalyst for this action was the so called redundancy dispute which turned on whether or not the VRL and Stabiliser 6 were part of or associated with Phase V. If they were not, as the employees of CBI contended, but CBI denied, then they were entitled to redundancy payments. For the work described above, CBI employees comprised those eligible for membership of the CFMEU and those eligible for membership of the AMWU. The work by those employees was covered by one or other of two agreements, known under the WR Act as "Union Collective Agreements". One related to the CFMEU, its members and persons eligible for membership; and the other to the AMWU, its members and persons eligible for membership. Clause 4 of each agreement dealt with the scope of the agreement. It refers to work under Phase V and any work associated with that project. The Union Collective Agreements cover the work that was disrupted by the unlawful industrial action. The AMWU and the CFMEU each admits it is an industrial organisation. The Legislation The BCII Act The relevant sections of the BCII Act are: (a)Section 9 establishes the Commissioner; (b)Section 38 provides that a person must not engage in unlawful industrial action; (c)Section 49(1) and (6) provides that the Commissioner may apply to the Federal Court for an order imposing a pecuniary penalty; (d)Section 49(1) so provides in the case of a defendant who has contravened a ‘civil penalty provision’, defined in s 4 in a manner that includes s 38;(e)Section 48 provides for accessorial liability. At its broadest, a person is deemed to have contravened a civil penalty provision if he is ‘involved’ in the contravention by aiding it, or being indirectly knowingly concerned in or party to it; (f). . .(i)s 69(1)(b) provides that the conduct of an officer or agent of a union is to be taken to be the conduct of the union; (ii)s 69(1)(d) provides that the conduct of a person who is a member of the union, and who performs the function of dealing with an employer on behalf of the member of the association acting in that capacity is taken to be the conduct of the union.

Evidence

Evidence Before The Court

I do not believe his explanation concerning the death of a worker as to why he did not know of this meeting. I find that Upton told him on 13 October of this meeting which was to take place the following morning. Application to admit rebuttal evidence The Commissioner applies under the Court’s discretion for leave to adduce rebuttal evidence. The evidence proposed extends only to whether there was a death that could match that described by Windus to explain why he might not have been able on 13 October 2008 to attend to the industrial relations situation at CBI’s site. This is not an application to re-open the Commissioner’s case to lead further evidence in support of that case. Rather, it is made under s 106 of the Evidence Act for leave to adduce that further evidence in respect of an issue of the credit of Windus. It is rare to give leave to adduce rebuttal evidence on credit. Invocation of that section by a plaintiff necessarily involves the plaintiff adducing evidence after closing its case. The Commissioner submits that the issue of credit is of singular importance to the case against Windus and the AMWU. He submits that after cross-examination, the Commissioner’s case includes that Windus deliberately did not attend on the morning of 14 October 2008 because he did not then want to tell employees not to strike. The falsity of the story of the distraction of a death is a fact contended by the Commissioner as going to that inference. Accordingly the Commissioner submits that Windus assisted, and was knowingly involved in, the strike on 14 October 2008 by deliberately refusing to inform member employees that their union, the AMWU, was against strike action. I do not accept that the Commissioner can expand his case, whether as a result of cross-examination or otherwise, unless an amendment to that effect is sought and granted. No such case is pleaded and no amendment was sought. The general rule, based in procedural fairness, is that relief is confined to that available on the pleadings: Banque Commerciale SA v Akhil Holdings Ltd (1990) 169 CLR 279 per Mason CJ and Gaudron J at 288. This must, it seems to me, encompass not merely the relief pleaded but the facts alleged in the pleading upon which relief is sought. Borrowing from the judgment of Mason CJ and Gaudron J at 287, it cannot be said that in this case “the parties (chose) some different basis for the determination of their rights and liabilities”. Indeed the Commissioner was permitted, on 22 March 2011, on the second day of the trial, by order of the Court to amend his statement of claim. He was given further leave during the trial on 30 March 2011 to further amend his statement of claim. It would be quite unfair to the respondents, particularly in proceedings for civil penalties, to allow the Commissioner any latitude in this respect. Indeed the Commissioner’s pleaded case was that Windus attended the meeting on the morning of 14 October. I would for that reason not grant leave to the Commissioner to tender the proposed rebuttal evidence. In any event, for other reasons stated, I have not accepted Windus’ evidence on this matter. Meeting of CBI employees - 14 October 2008

Decision

Reasons for decision

I reject the claim that the AMWU was disinclined to attend to the requirements directly imposed on it by the AIRC Order. The claim is inconsistent with the AMWU’s strongly worded policies concerning the very limited bases on which industrial action can be authorised as well as with McCartney’s express direction to Windus of 13 October. I find that through Windus the AMWU complied with Order (b)(ii).Conclusions I have found that in addition to the admitted liability of the Employee Respondents, including Brown and Jonson in that capacity, that the Commissioner has established the following alleged contraventions but not otherwise:(a)Upton, by his conduct in making the Statement and each of Brown and Johnson by their conduct in not disassociating themselves from the Statement took unlawful industrial action by virtue of s 48 of the BCII Act at the meeting with CBI officers on 13 October 2008 (the 13 October meeting with CBI) and thereby contravened s 38 of the BCII Act. (b)Each of the CFMEU and the AMWU took unlawful industrial action by virtue of s 69 of the BCII Act in respect of the conduct of Upton and Johnson respectively at the 13 October meeting with CBI and thereby contravened s 38 of the BCII Act. (c)The AMWU, by virtue of s 826(2) of the WR Act breached s 494(1) of the WR Act through the conduct of Johnson at the 13 October meeting with CBI. (d)Upton breached s 494(1) of the WR Act by his conduct at the 13 October meeting with CBI. (e)The CFMEU, by virtue of s 826(2)(a) of the WR Act breached s 494(1) of the WR Act through Upton’s conduct at the 13 October meeting with CBI. (f)The CFMEU, through Upton’s conduct at the 13 October meeting with CBI, breached the relevant provisions of a Collective Agreement and thereby became liable to a penalty under s 719 of the WR Act. (g)The AMWU through Johnson’s conduct at the 13 October meeting with CBI, breached the relevant Collective Agreement and thereby became liable to a penalty under s 719 of the WR Act. I am satisfied that declarations in respect to the contraventions found ought be made. The issue of whether any penalties and, if so, in what amounts, should be ordered, falls to be determined in due course. I will direct the parties to bring in a minute of proposed declarations and orders within 14 days to reflect the conclusions contained in these reasons and failing agreement there will be liberty to the parties to apply. I will also hear the parties on the question of costs.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.