Commissioner of the Australian Building and Construction Commission v Hall and Ors (No.2); “The 3 Site Canberra Case (No.2)“
[2019] FCCA 2055
•20 September 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| COMMISSIONER OF THE AUSTRALIAN BUILDING AND CONSTRUCTION COMMISSION v HALL & ORS (No.2) “The 3 Site Canberra Case (No.2)“ | [2019] FCCA 2055 |
| Catchwords: INDUSTRIAL LAW– Concessions made by Applicant regarding liability of the Seventh Respondent Union – consideration of those concessions inevitably leads Court to dismiss Contravention Applications against the Seventh Respondent Union except in relation to the contraventions admitted – supplementary judgment and amendment to Orders pursuant to the “slip rule”. |
| Legislation: Fair Work Act 2009 (Cth), s.793. Federal Circuit Court Rules 2001 (Cth), r. 16.05(1), 16.05(2)(f) and (h). |
| Cases cited: Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2018] FCA 42 Australian Workers’ Union v Leighton Contractors Pty Ltd (2013) 209 FCR 191 Burrell v The Queen (2008) 238 CLR 218 Coleman v Power (2004) 220 CLR 1 Commissioner of the Australian Building and Construction Commission v Hall & Ors (“The 3 Site Canberra Case”) [2018] FCCA 3532 Silvestri Pty Ltd v Construction, Forestry, Mining and Energy Union [2007] FCA 1047 Yorke v Lucas (1985) 158 CLR 661 |
| Applicant: | COMMISSIONER OF THE AUSTRALIAN BUILDING AND CONSTRUCTION COMMISSION |
| First Respondent: | DEAN HALL |
| Second Respondent: | HALAFIHI KIVALU |
| Third Respondent: | JOHNNY LOMAX |
| Fourth Respondent: | JASON O’MARA |
| Fifth Respondent: | ZACHARY SMITH |
| Sixth Respondent: | KENNETH MILLER |
| Seventh Respondent: | CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION |
| File Number: | CAG 78 of 2014 |
| Judgment of: | Judge Neville |
| Hearing date: | 12 March 2019 |
| Date of Last Submission: | 12 March 2019 |
| Delivered at: | Canberra |
| Delivered on: | 20 September 2019 |
REPRESENTATION
| Counsel for the Applicant: | Ms P Bindon |
| Solicitors for the Applicant: | Clayton Utz, Canberra |
| Counsel for the First, and Third – Seventh Respondents: | Mr Bakri |
| Solicitors for the First, and Third – Seventh Respondents: | Slater & Gordon, Melbourne & Sydney |
| Lawyer for the Second Respondent: | Self-Represented but no appearance |
ORDERS
Within 28 days of the date of these Orders, being by 18th October 2019, the parties are to:
(a)Jointly provide Chambers via email to [email protected] with a Minute of Declarations and Orders reflecting the findings against the Respondents set out in the judgments dated 7th December 2018 and 20th September 2019; and
(b)Jointly file an agreed Minute in relation to the procedural course for the matter regarding penalties.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT CANBERRA |
CAG 78 of 2014
| COMMISSIONER OF THE AUSTRALIAN BUILDING AND CONSTRUCTION COMMISSION |
Applicant
And
| DEAN HALL |
First Respondent
And
| HALAFIHI KIVALU |
Second Respondent
And
| JOHNNY LOMAX |
Third Respondent
And
| JASON O’MARA |
Fourth Respondent
And
| ZACHARY SMITH |
Fifth Respondent
And
| KENNETH MILLER |
Sixth Respondent
And
| CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION |
Seventh Respondent
REASONS FOR JUDGMENT
Introduction
In Coleman v Power, McHugh J said, at [79]:[1]
In my view - in constitutional and public law cases as well as private law cases - parties can concede issues even though the issue is a legal issue. The only power with which this Court is invested is judicial power together with such power as is necessary or incidental to the exercise of judicial power in a particular case. The essence of judicial power is the determination of disputes between parties. If parties do not wish to dispute a particular issue, that is their business. This Court has no business in determining issues upon which the parties agree. It is no answer to that proposition to say that this Court has a duty to lay down the law for Australia. Cases are only authorities for what they decide. If a point is not in dispute in a case, the decision lays down no legal rule concerning that issue. If the conceded issue is a necessary element of the decision, it creates an issue estoppel that forever binds the parties
[1] Coleman v Power (2004) 220 CLR 1.
As is reflected in further written submissions by both parties (set out below), and in correspondence from the parties to the Court, dated 15th March 2018 and 22nd January 2019 (also set out below), late in the primary proceedings the Applicant made a number of concessions regarding the liability of the Seventh Respondent Union arising out of the conduct of a number of its employees and officials.
On 7th December 2018, the Court delivered judgment in this matter, which involved findings of multiple contraventions under the Fair Work Act 2009 (Cth) (“the Act”) that occurred on specific dates on three separate building sites in Canberra. Those contraventions involved the Respondents, to varying degrees and in obviously differing ways. Relevant details regarding the contraventions, including various findings of responsibility (or not), are set out in what, for current purposes, will be referred to as “the principal judgment.”[2] The Orders made in the principal judgment will be referred to as “the principal Orders.”
[2] Commissioner of the Australian Building and Construction Commission v Hall & Ors (“The 3 Site Canberra Case”) [2018] FCCA 3532.
For reasons set out below, the Orders that were directed by the Court to be formulated and engrossed by the parties in the light of the findings made in the principal judgment, have not (a) been formulated or engrossed, or (b) been entered, pursuant to Part 16 of the Federal Circuit Court Rules 2001.
The Court’s consideration and disposition regarding the liability of the Seventh Respondent Union was set out at [660] – [683] of the principal judgment. For inexplicable reasons, neither the Applicant’s concessions, nor the subsequent supplementary written submissions of both parties regarding recent decisions of the Federal Court, were addressed in those paragraphs. These supplementary reasons make good that deficiency. The reasons of the principal judgment at the paragraphs noted regarding the liability of the Seventh Respondent should now be read subject to these supplementary reasons.
In the light of the Applicant’s concessions, the parties jointly submitted that, because the principal Orders had not been taken out, the most appropriate course would be for the Court to consider delivering an additional judgment (or an addendum to the principal judgment). It was submitted that such a judgment would clarify the Court’s consideration of the Applicant’s concessions and the submissions made by the parties in relation to recent Federal Court decisions. In the light of no Orders having formally been taken out, in any additional or supplementary judgment, so it was submitted, the Court could relevantly amend any Orders pursuant to the “slip rule.”
For the reasons that follow, in my view:
a)there is no dispute that the Court has jurisdiction and power to amend Orders (and equally to provide reasons to support the relevant change(s)) pursuant to the “slip rule”; and
b)supplementary reasons must be provided that properly have regard to the concessions made by the Applicant with respect to the liability of the Seventh Respondent Union (“the Union”).
In the light of the Applicant’s concessions, in my view, the liability of the Union arising out of the conduct of its officials and employees (other than those that have been specifically admitted) cannot be established to the requisite degree under s.793 of the Act. Conversely, albeit somewhat anomalously for reasons explained below, only those contraventions pleaded against, and admitted by, the Union that relate to the admitted contraventions of Mr Kivalu and Mr Miller, can formally give rise to the Union’s liability under s.793 of the Act.
Operation of the “Slip Rule”
Under this Court’s Rules, and according to authority, this Court has the jurisdiction and the power to vary or to set aside Orders (and the reasons upon which those Orders rest).
Rule 16.05(1) of the Federal Circuit Court Rules 2001, provides:
The Court may vary or set aside its judgment or order before it has been entered.
Otherwise, under Rules 16.05(2)(f) and (h), the Court has power to vary or set aside a judgment in certain circumstances there described.
In Burrell v The Queen (“Burrell”), the High Court relevantly said, at [18] – [21] (internal citations omitted):[3]
[18] The formal recording of the orders of a superior court of record is often referred to as the "perfecting" of that order. Whether a court may reopen a proceeding and reconsider the order that has been pronounced is often described as hinging about whether the order has been "perfected". This use of terminology must not be seen as giving form and procedure precedence over substance and principle. The questions that arise in this matter must depend for their answer not upon what forms and solemnities have been observed but upon how effect is to be given to the principle of finality. In particular, what is to mark the point at which a court concludes its consideration of a controversy?
[19] The end of a court's powers to consider and determine a controversy cannot depend upon whether one party asserts that the court has made some error in the conclusion it has reached. If allegation of error in the court's orders were the criterion, there would never be an end to some disputes. And because one party's assertion of error cannot provide a sufficient criterion, a court's belief that it has recognised its own mistake can provide no useful criterion. Such a belief could provide no useful criterion because, in the end, the accuracy of the belief would have to be tested against the arguments of the parties. It follows therefore that no matter whether it is a party that alleges error, or it is the court itself which believes that it recognises its own error, a decision that an error had been made could be reached only after giving all parties an opportunity to be heard. And it is this reargument of issues that would constitute the departure from the principle of finality.
[20] Identifying the formal recording of the order of a superior court of record as the point at which that court's power to reconsider the matter is at an end provides a readily ascertainable and easily applied criterion. But more than that, identifying the formal recording of the order as the watershed both marks the end of the litigation in that court, and provides conclusive certainty about what was the end result in that court.
[21] The power to correct the record so that it truly does represent what the court pronounced or intended to pronounce as its order provides no substantial qualification to that rule. The power to correct an error arising from accidental slip or omission, whether under a specific rule of court or otherwise, directs attention to what the court whose record is to be corrected did or intended to do. It does not permit reconsideration, let alone alteration, of the substance of the result that was reached and recorded.
[3] Burrell v The Queen (2008) 238 CLR 218.
In the current proceeding, following delivery of the principal judgment on 7th December 2018, the Court directed the parties to file a Minute of Orders reflecting the findings made in that judgment. For the reasons outlined in the helpful and detailed correspondence set out below, no such Minute has been filed. As such, the Orders plainly have not been perfected in any relevant respect.
In the light of the comments by the High Court in Burrell, what follows is to be considered and treated as a supplementary judgment to the principal judgment. It deals specifically with the import of the Applicant’s concessions to which I have referred to only in general terms, thus far.
As already recorded, the issue to be addressed relates to the liability of the Union in the light of: (a) the Court’s findings of liability in relation to the conduct of the employees and office holders of the Seventh Respondent Union as pleaded and in the light of recent Federal Court decisions; (b) the concessions made by the Applicant set out in the later written submissions of the parties; and (c) the recent, joint correspondence provided to the Court.
Liability of the Seventh Respondent Union & s.793
Because it is central to the submissions and the issue to be determined, for ease of reference I set out here s.793 of the Act, which relevantly provides (emphasis in original):
Liability of bodies corporate
Conduct of a body corporate
(1) Any conduct engaged in on behalf of a body corporate:
(a) by an officer, employee or agent (an official) of the body within the scope of his or her actual or apparent authority; or
(b) by any other person at the direction or with the consent or agreement (whether express or implied) of an official of the body, if the giving of the direction, consent or agreement is within the scope of the actual or apparent authority of the official;
is taken, for the purposes of this Act and the procedural rules, to have been engaged in also by the body.
State of mind of a body corporate
(2) If, for the purposes of this Act or the procedural rules, it is necessary to establish the state of mind of a body corporate in relation to particular conduct, it is enough to show:
(a) that the conduct was engaged in by a person referred to in paragraph (1)(a) or (b); and
(b) that the person had that state of mind.
Meaning of state of mind
(3) The state of mindof a person includes:
(a) the knowledge, intention, opinion, belief or purpose of the person; and
(b) the person’s reasons for the intention, opinion, belief or purpose.
Applicant’s Further Submissions
The Applicant filed these Further Submissions on 27th October 2017. They related to a series of first instance decisions in the Federal Court of Australia. These decisions concern the liability of a registered organisation arising out of contraventions of s.500 of the Act by its officials who are permit holders. The submissions also dealt with proposed amendments to the Further Amended Statement of Claim (“FASOC”).[4] Although the submissions have been set out in full below, for present purposes, only that part which relates to the liability of the registered organisation is immediately relevant. The Applicant’s Further Submissions, in their entirety, were as follows (internal citations omitted):
[4] Although the Applicant foreshadowed an Application to amend the Further Amended Statement of Claim, in the result the Respondents only consented to such amendment that related to the contraventions involving Mr Kivalu and Mr Miller. Orders to this effect were made by the Court, by consent, on 26th March 2018.
Background
1) These written submissions are filed on behalf of the Applicant, the Commissioner, Australian Building and Construction Commission (Commissioner), pursuant to the Order of Judge Neville in Chambers dated 10 October 2017.
2) These submissions address the effect of recent Federal Court decisions on the application of s 793 of the Fair Work Act 2009 (Cth) (FW Act) in attributing liability to a body corporate such as the Seventh Resondent, and the reasons why the Commissioner now seeks to amend its further amended statement of claim (FASOC) to to plead s 550 in conjunction with s 793.
3) The Commissioner respectfully submits that the Court may rely on these submissions, and the submissions of the Respondents in response, to determine any formal application that the Commissioner may file pursuant to r 7.01(1) of the Federal Circuit Court Rules 2011 (Cth) (Rules) seeking leave to amend the FASOC.
Federal Court Decisions
4) The way the Commissioner has pleaded the liability of the Seventh Respondent for contraventions by its officers based on the operation of s 793 in and of itself was based on the approach taken by it and accepted by the courts for a number of years (Conventional Approach). Examples of cases adopting the Conventional Approach were listed at paragraphs [340] and [341] of the Commissioner’s written submissions filed on 17 March 2017 (Closing Submissions).
5) Importantly, the Conventional Approach was followed even in cases where the contraventions by the officers were of provisions that hinged upon the officer having a particular status as a ‘permit holder’, which status was not strictly capable of being held by the body corporate.
6) As explained in paragraphs [347] – [356] of the Closing Submissions, the Seventh Respondent has accepted the Conventional Approach in the two contraventions on 11 March 2014 for which it has admitted liability. To allow it to deny the Conventional Approach in respect of the other contraventions alleged against it would ground an issue estoppel and abuse of process.
7) Nonetheless, since the conclusion of the hearing in these proceedings, a number of decisions have been delivered by single judges of the Federal Court which arrive at a conclusion contrary to that advanced by the Commissioner in its Closing Submissions. The parties recently drew the Court’s attention to one of these decisions - Australian Building and Construction Commissioner v Harris [2017] FCA 733. Since that decision, the following decisions have also been handed down: Australian Building and Construction Commissioner v McDermott (No 2) [2017] FCA 797, Australian Building and Construction Commissioner v Huddy (No 2) [2017] FCA 1088 and Australian Building and Construction Commissioner v Upton (the Grogon Project Case) (No 2) [2017] FCA 847.
8) The effect of these decisions is that s 793 of the FW Act may not be relied upon in and of itself to deem liability on the part of a registered organisation in respect of contraventions of s 500 by its officials who are permit holders. However, the decisions demonstrate that such liability may be established under s 550 by reason of the registered organisation having been ‘involved in’ those contraventions.
9) The doctrine of stare decisis requires a lower court in a judicial hierarchy to follow a decision of a court higher in that hierarchy if the higher court exercises appellate jurisdiction over the lower court. Where there are two decisions of the higher court that are in conflict, the later decision in time should ordinarily be followed.
10) In light of those principles and the fact that the recent Federal Court decisions are later in time than the cases referred at paragraphs [340] and [341] of the Closing Submissions, the Commissioner accepts that this Court is – on the present state of authorities – bound to follow the more rececent decisions in Harris, McDermott (No 2), Huddy and Upton at least on the question of liability for contraventions of s 500. However, the Commissioner also accepts that to the extent that other provisions it alleges to have been contravened depend upon the individual contravenor bearing a particular status (including s 494 (‘official’) and ss 497 and 499 (‘permit holder’)), the Court would also find the approach in Harris, McDermott (No 2), Huddy and Upton to be persuasive.
Amendment of the FASOC
11) The Commissioner is looking at re-pleading all its active matters that allege liability against a registered organisation (such as the Seventh Respondent) by reason of s 793, so as to align with views expressed by the Federal Court in the decisions discussed above.
12) Relevantly, in pleadings relating to alleged contraventions of s 494 or s 503 the Commissioner would now allege that the registered organisation is liable via:
a) s 550 in combination with s 793(2); and
b) common law vicarious liability,
further or in the alternative to being liable by reason of s 793 in and of itself.
13) In these proceedings then, the Commissioner seeks to make the same amendments. This would mean amendment to paragraph 16 (including the addition of 16A) of the FASOC as follows:
16. In the premises set out in paragraph 15, the Seventh Respondent:
a) contravened s. 494 of the FW Act by reason of the Sixth Respondent's contravention of s. 494 of the FW Act;
b) further, or in the alternative, is taken to have been involved in the contravention of s 494 of the FW Act by the Sixth Respondent under ss. 550(1) and 550(2)(c) of the FW Act by reason of the conduct and knowledge attributed to it under s. 793 of the FW Act.
16A. Further or alternatively to the Seventh Respondent’s liability under s 793 or s 793 in conjunction with s 550 of the FW Act, by reason of the matters pleaded in paragraphs 2 and 3 above and the fact that:
a) when the Sixth Respondent engaged in the conduct alleged herein to contravene s 494 of the FW Act, he did so within the scope of his actual authority as an officer of the CFMEU to engage in conduct of that class of acts;
b) further or alternatively to (a) above, the Seventh Respondent did not take proper steps to prevent the acts of the Sixth Respondent alleged herein to contravene s 494 of the FW Act; and
c) further or alternatively to (a) and (b) above, there was a close connection between the acts of the Sixth Respondent alleged herein to contravene s 494 of the FW Act and his employment with the Seventh Respondent,
the Seventh Respondent in variously liable at common law for the acts of the Sixth Respondent constituting the contravention of s 494 of the FW Act alleged herein.
Similar amendments to paragraph 78 (Seventh Respondent’s liability for contraventions of s 503) are also sought.
14) In relation to paragraph 64 (Seventh Respondent’s liability for contraventions of s 500) (including the addition of 64A), the Commissioner seeks to make the following amendments:
64. In the premises set out in paragraph 63, the Seventh Respondent is taken to have been involved in the contraventions of the First, Second, Third and Fifth Respondents under ss 550(1) and 550(2)(c) of the FW Act by reason of the conduct and knowledge and state of mind attributed to the CFMEU under s 793 of the FW Act.
contravened s 500 of the FW Act by reason of each of the First, Second, Third and Fifth Respondent’s contraventions of s 500 of the FW Act.64A. In the premises set out above, the CFMEU is therefore taken to have contravened section 500 of the FW Act.
Similar amendments to paragraphs 24 (Seventh Respondent’s liability for contraventions of s 497) and 46 (Seventh Respondent’s liability for contraventions of s 499) are also sought.
Principles
15) In considering whether leave to amend ought to be granted, the starting principle to be applied is that the Court should grant leave unless the proposed amendment is obviously futile because it has no reasonable prospects of success, would be liable to be struck out as not raising a reasonable cause of action, or would cause substantial and irreparable prejudice or injustice in a way that cannot be compensated by the award of costs.
16) That power should also be exercised with due regard to case management principles as articulated in the objects of the Rules set out in Pt 1 r 1.03, which are to help the Court resolve proceedings justly, efficiently and economically; informally, with use of streamlined procedures; and so as to avoid undue delay, expense and technicality
17) The practical application of case management principles must be determined on a case by case basis. Nonetheless, the High Court’s decision in Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 (Aon) is an instructive example for how such case management principles impact upon applications for adjournment or amendment.
18) In Aon, the High Court emphasised that there is no ‘right’ to have an application to adjourn or amend allowed where any prejudice can be compensated by costs (at [5], [111]). Rather, ‘[a]ll matters relevant to the exercise of the power to permit amendment should be weighed’ (at [111]). Those matters were held to include (together, the “Aon Factors”):
a) extent of delay (including the effect it will have on other litigants and the public interest in the efficient use of the Court as a publicly funded resource), particularly where it will result in vacation of a trial date (at [5], [102], [111]);
b) extent of wasted costs (at [102], [111]);
c) prejudice to the other party shown or reasonably assumed to follow (at [5], [102]);
d) potential for loss of public confidence in the legal system (at [5], [30]);
e) nature and importance of the amendment to the party applying (at [102]);
f) explanation provided for the delay (at [108], [114]); and
g) parties’ choices to date in the litigation and their consequences (at [112]).
19) No one factor will be conclusive. Ultimately, it is a question of balancing the competing factors.
The present case
20) In terms of the starting principle, it cannot be said that the proposed amendments are obviously futile as having no reasonable prospects of success or that they disclose no reasonable cause of action. The proposed amendments plead an alternative means for establishing the Seventh Respondent’s liability for contraventions of ss 494, 497, 499, 500 and 503 of the FW Act based on s 550(2)(c). They are consistent with the approach taken in the recent Federal Court decisions. Relevantly, Charlesworth J in McDermott (No 2) stated at [121]:
To the extent that it is necessary to show that CFMEU involved itself in some tangible way in the contraventions of its officials, there is no reason why s 793 should not facilitate proof of that requirement. Section 793 is premised on an accepted fiction that a body corporate is a separate legal entity from those who participate in it: Salomon v A Salomon & Co Pty Ltd [1897] AC 22. Accepting that fiction, it does not matter that the deemed physical acts of the secondary participant are the same acts in fact engaged in by the primary contravener. CFMEU did not make any submission to the contrary. Accordingly, the physical acts of Mr McDermott and Mr Cartledge are, in each instance, taken also to be the acts of CFMEU. That is sufficient to demonstrate CFMEU's participation in each contravention.
21) The very result in the recent Federal Court decisions reveals that the proposed amendments have a strong prospect of success if the contraventions against the individual respondents are made out.
22) As to the case management principles and Aon Factors, the Commissioner makes the following points:
a) Extent of delay: in Aon, an adjournment to prepare an amendment to the pleading was sought on the third day of a four-week trial and caused the trial to be abandoned. This was a significant factor that weighed in favour of refusing the application (Aon at [4]-[5], [39], [104]). In the present case, the trial has already occurred. The question of the proposed amendment can be determined on the papers. Although the ‘delay’ is significant, the timing is explicable by the Federal Court decisions being handed down post-trial.
b) Extent of costs: In Aon, the amendments sought alleged a new case against Aon based upon a contract not previously pleaded and would require Aon to defend again, as from the beginning. In the High Court’s view, it was questionable whether costs would overcome the prejudicial effects on Aon (Aon at [104]). The present proceedings are entirely different. In practical terms, the proposed amendments do not plead additional material facts but, based on the same facts, plead a different basis for the Seventh Respondent’s liability. As a result, the Commissioner would not need to adduce additional evidence and no further crossexamination of the Respondents’ witnesses would be required. It is difficult to see what further evidence would need to be adduced by the Respondents. The additional submissions required are not time-consuming, costly or significant in scope. In light of s 570 of the FW Act, no costs order could be made unless it can be shown that the Commissioner has acted unreasonably (which given the change in case law after the close of submissions would be a difficult claim to sustain).
c) Prejudice assumed and shown to flow: As indicated above, in Aon, the nature of the proposed amendments sought to introduce ‘new and substantial claims’ and would have required Aon, after preparing its case all the way to trial, to address a new claim based on a new set of factual circumstances many years after the event. In contrast, in the present proceedings it is not evident what real prejudice the Seventh Respondent would suffer. The proposed amendments do not allege any new matters of fact. There is no suggestion that different instructing officers from the Seventh Respondent will be needed to instruct on the proposed amendments. There is no question of a trial date being abandoned and the uncertainty of litigation being prolonged. The fact that the Seventh Respondent would now need to meet a more robust case on the question of its liability for the contraventions of its officers based on latest case law is not ‘strain’ in the relevant prejudicial sense. Most amendments to pleadings will ordinarily result in their improvement.
d) Public confidence: In Aon, the disruption to the proceedings occasioned by the late application to amend was extensive. Granting the application would necessarily impact on the position of other litigants through the vacation of trial dates. In the present proceedings, there will be no vacation of a trial date that will threaten the position of other litigants. While it is true that the Court may now need to address an alternative basis on which the liability of the Seventh Respondent is said to flow, this will not require it to determine any new factual matters and the recent Federal Court decisions will be instructive on the legal principles applicable to application of s 550 in conjunction with s 793.
e) Nature and Importance of the amendments: It has been said that Aon does not require the party seeking the amendment to go any further than showing that the amendments would ‘add a real and substantive set of allegations to its case’. In the present proceedings, the proposed amendments can be seen not merely to add a ‘real and substantive’ allegation but to be of central importance to the Commissioner’s case. One of the key matters at issue in the proceedings is whether the Seventh Respondent can be held liable for the conduct of the First to Sixth Respondents. It forms a central part of the Commissioner’s policy in exercising its powers to prosecute. The proposed amendments are intended to ensure this issue is raised appropriately in conformity with the case law.
f) Explanation for the delay: In Aon, the High Court emphasised that the evidence proffered by ANU’s solicitor was silent about the reasons for the delay. That omission suggested that no explanation favouring ANU existed. In the present proceedings, the explanation is that the succession of Federal Court cases handed down after the trial in these proceedings altered the landscape on the way s 793 is understood to operate. There had been no single judge or Full Court decision of either this Court or the Federal Court altering the previous understanding (but simply the obiter comments of a single judge of the Federal Court). That previous understanding had been relied on by both the Commissioner and the Seventh Respondent in numerous proceedings where the Seventh Respondent admitted liability on that basis. The Seventh Respondent even accepted that position in the course of these proceedings. At no time did the Seventh Respondent positively plead that s 793 could not, in and of itself, impose liability on it contrary to the manner in which the Commissioner pleaded its case.
g) Parties’ choices to date and their consequences: It would also be wrong to proceed from the premise that all the Seventh Respondent need do is identify something that the Commissioner could have done earlier or better and suggest that renders the explanation for delay inadequate. Unlike Aon, there can be no credible suggestion that the amendments are sought at this time as a result of some antecedent tactical decision by Commissioner to plead the matter differently. It has always been the case that the Commissioner has sought to establish that Seventh Respondent’s liability based on the actions of its officers. The proposed amendments allow the imposition of such liability in circumstances that would further the objects of the FW Act: Harris at [64]. It is in the public interest that the Seventh Respondent is held to account for the conduct of its officers.
23) The Commissioner’s submission is that both the merits of the proposed amendments, together with the balance of case management considerations, overwhelmingly favours the Court allowing the Commissioner’s proposed amendments to be made.
First and Third to Seventh Respondents’ Further Submissions
The First and Third to Seventh Respondents filed Further Submissions on 10th November 2017. They were as follows:
First and Third to Seventh Respondents’ Further Submissions – Effect of Recent Decisions Regarding Section 793
Introduction
1) These submissions are filed on behalf of the first and third to seventh respondents (together, the respondents) pursuant to the Orders made by his Honour Judge Neville in Chambers dated 10 October 2017 and 26 October 2017. The Court has allowed each party to file further written submissions “regarding the discrete issue of the effect of these recent Federal Court decisions upon the application of s 793 and s 550 in attributing conduct to a body corporate”. The applicant has filed submissions addressing the effect of the recent Federal Court decisions, and the respondent herein answers those submissions.
2) The applicant, however, also flags an intention to seek leave to amend its further amended statement of claim (FASOC). The respondents object to the court receiving the applicant’s submissions regarding its foreshadowed application to amend its FASOC. It is submitted that these submissions go well beyond what the Court has ordered that each party be allowed to file in the absence of agreement between the parties. They are inappropriate in circumstances where no formal application for leave to amend the FASOC has been filed and the respondents would oppose such leave being granted. Furthermore, the applicant’s foreshadowed application flies in the face of the principles enunciated in Aon Risk Services Australia Pty Ltd v Australian National University (2009) 239 CLR 175, and in any event, faces manifest difficulties.
3) Therefore, these submissions will address only the discrete issue of the effect of the recent Federal Court decisions upon the application of s 793 as pleaded by the applicant against the respondents. Separate submissions have been filed by the respondents in relation to the applicant’s additional, unauthorised submissions, which foreshadow the possibility of a very late application for leave to amend the FASOC.
The applicant’s case against the respondents
4) The respondents refer to and repeat the submissions made at [167] to [182] of their submissions dated 21 April 2017.
5) The applicant’s case as pleaded relies solely on s 793 of the Fair Work Act 2009 (Cth) (FW Act) to establish liability on the part of the seventh respondent for each of the alleged contraventions by the individual respondents, on the basis that:
a)By the operation of s 793(1) all of the conduct of the individual respondents is alleged to have been engaged in also by the seventh respondent; and
b)By the operation of s 793(2) the seventh respondent has the state of mind of the individual respondents.
6) To date, the applicant has contended that s 793 is sufficient in itself to establish liability (“in effect, automatically”) on the part of the seventh respondent for contraventions committed by its employees or officers. The applicant maintained this contention despite the views to the contrary expressed by Charlesworth J in Director of Fair Work Building Industry Inspectorate v Robinson [2016] FCA 525 (Robinson) and Director of Fair Work Building Industry Inspectorate v McDermott [2016] FCA 1147 (McDermott). Robinson was cited with approval by Jessup J in Director of the Fair Work and Building Industry Inspectorate v CFMEU (The Yarra’s Edge Case) [2016] FCA 772 (The Yarra’s Edge Case).
7) Responding to the case as pleaded against it, and in light of the evidence adduced at trial, the CFMEU submitted that the applicant had not established that the CFMEU had contravened the FW Act. The respondents’ preliminary submissions made clear that the seventh respondent contended that s 793 does not, in itself, fix upon a body corporate liability for contraventions, and that it relied upon the decisions in Robinson and McDermott. The respondents’ closing submissions placed particular reliance upon the comments made by Charlesworth J in Robinson. The respondents further submitted that the CFMEU could not, as a matter of law, be found to have contravened sections 497, 499 and 500 of the FW Act because these provisions can only be contravened by a permit holder which the CFMEU is not.
Effect of recent decisions
8) Since the conclusion of the trial and submissions in these proceedings, four decisions of relevance have been handed down by single judges of the Federal Court: ABCC v Harris [2017] FCA 733 (Harris), ABCC v McDermott (No 2) [2017] FCA 797 (McDermott (No 2), ABCC v Huddy (No 2) [2017] FCA 1088 (Huddy (No 2)) and ABCC v Upton (The Gorgon Project Case) (No 2) [2017] FCA 847 (The Gorgon Project Case).
9) The effect of these decisions is that the applicant’s case against the seventh respondent as pleaded must fail.
10) Harris concerned an alleged contravention of s 500 by an individual permit holder (Harris) and by the CFMEU applying s 793 of the FW Act. The facts founding the admitted contravention by Mr Harris were ultimately admitted in amended defences, but liability for the contravention was denied by the CFMEU. Applying Robinson and referring to The Yarra’s Edge Case, Siopis J determined that the CFMEU had not contravened s 500 applying s 793 as pleaded by the applicant. His Honour noted the following at [49]-[50]:
[T]he language of the Fair Work Act distinguishes between the attribution of conduct as in s 793, and the attribution of liability for a contravention of a provision of the Fair Work Act by another party as in s 550(1).
Section 550(1) provides as follows:
A person who is involved in a contravention of a civil remedy provision is taken to have contravened that provision.
11) McDermott (No 2) involved the CFMEU’s alleged liability for contraventions of s 500 by two of three contravening officials (the CFMEU’s liability pleaded to arise from the contraventions of Messrs McDermott and Cartledge, but not those of Mr Sloane). The statement of claim alleged three pleaded bases for the CFEMU’s alleged liability in the alternative – direct liability by the operation of s 793; vicarious liability and involvement in the contraventions under s 550(1) and s 550(2)(c) by reason of conduct and knowledge attributed to it under s 793. Applying Harris, Charlesworth J determined that the CFMEU could not be liable for a convention of s 500 by the application of s 793 in and of itself. Her Honour also determined that, on its proper construction, the FW Act does not impose vicarious liability on the CFMEU for a contravention of s 500. In relation to section 550, her Honour found that the CFMEU was, on the facts, involved in the contraventions of its officials within the meaning of s 550(1) and was thereby taken to have contravened s 500.
12) Huddy (No 2) concerned the CFMEU’s alleged liability for contraventions of s 500 by one permit holder, Mr Huddy. The applicant had initially alleged that the CFMEU was liable for the individual’s contraventions by operation of section 793. Prior to trial, however, the applicant amended its statement of claim to allege that the CFMEU was “involved in” Mr Huddy’s contraventions within the meaning of section 550. White J determined that the CFMEU had contravened section 500 by reason of it having been directly or indirectly knowingly concerned in Mr Huddy’s contravention of section 500.
13) The Gorgon Project Case involved alleged contraventions of sections 346(a), 348 and 500 of the FW Act by an individual permit holder and the CFMEU. In respect of s 500, the applicant contended that the CFMEU’s liability arose from s 793, the common law and/or s 550 on the basis that the CFMEU was “involved in” the individual’s contravention. Barker J did not consider it necessary to consider all of the alternative means by which the applicant alleged the CFMEU might be held liable for the individual’s contravention of s 500, but determined, applying Huddy (No 2) that the CFMEU’s liability had been established under s 550.
14) Accordingly, s 793 cannot found liability on the part of the seventh respondent for any contravention of s 500 by its officials who were permit holders. The applicant concedes as much at paragraph [8] of its further submissions.
15) Furthermore, s 793 cannot found liability on the part of the seventh respondent for any contravention of ss 494, 497 and 499 by its officials who were permit holders. This is conceded by the applicant at paragraph [10] of its further submissions.
16) Whilst the previous approach to section 793 is referred to in the applicant’s submissions as the “Conventional approach”, a better label is the “Mistaken approach”.
17) The effect of the recent decisions of the Federal Court is that the contraventions alleged against the seventh respondent at paragraphs 23-24, 45-46 (except insofar as they relate to the contravention by the second respondent which is admitted by the seventh respondent), 63-64 and 77-78 of the FASOC must be dismissed.
18) The seventh respondent continues to admit liability for the sixth respondent’s contravention of s 494 and the second respondent’s contravention of s 499. The seventh respondent would consent to amendments being made to the FASOC and Amended Defence, within an expedited timetable, to reflect the seventh respondent’s continued admission to these contraventions. The sixth respondent has no intention of seeking to evade liability for these contraventions, and the making of such amendments would reflect the agreement previously made between the parties concerning these two contraventions.
Applicant’s Further Submissions in Reply
The Applicant filed Further Submissions in Reply on 17th November 2017. They were as follows:
Arguments addressing the appropriateness of foreshadowing an application to amend the FASOC in the further submissions
1) The Respondents object to the Applicant having made submissions relevant to the foreshadowed application to amend the FASOC without a formal application having yet been filed and in circumstances where the Respondents would oppose such an application.
2) This is a surprising submission in light of the Respondents’ acknowledgement of the objects in ss 3 and 42 of the Federal Circuit Court of Australia Act 1999 (Cth) and r 1.03 of the Federal Circuit Court Rules 2011 (Cth) (Rules); namely that the Court is to operate as informally as possible in the exercise of judicial power, use streamlined procedures; proceed without undue formality and endeavour to ensure that the proceedings are not protracted, and the parties are to assist the Court by avoiding undue delay, expense and technicality.
3) In circumstances where the parties are invited to make submissions on the effect of recent Federal Court decisions on the application of s 793 and s 550 in attributing liability to a body corporate in circumstances where the Applicant’s FASOC does not currently plead a case based on s 550, it is both logical and efficient for the Applicant to have addressed the question of whether it would make an application to amend its FASOC and, if so, the arguments it would present in support of such an application.
4) The Applicant’s submissions on the question of s 793 and s 550 meant that an application for leave to amend the FASOC was inevitable. It was both appropriate, and in accordance with the parties’ obligations to assist the Court, to foreshadow the application and ventilate the arguments in support of it. Importantly, doing so gave the Respondents an opportunity to raise any particular arguments (including, for example, specific prejudice likely to be suffered) that might otherwise persuade the Applicant not to make the application. Having read both parts of the Respondents’ Further Submissions, the Applicant is fortified in her view that there are no such arguments.
Arguments addressing whether the Applicant should be granted leave to amend the FASOC
5) The Respondents’ submissions as to why the Applicant should not be permitted to amend the FASOC merely assert positions without providing the basis for them. For example, the Respondents assert that the foreshadowed amendments in their current form would ‘be the subject of a strike out application’ without outlining any argument or explanation as to why that would be so.
6) The Respondents claim that the foreshadowed amendments would entitle them to seek further and better particulars of the alleged contraventions based on s 550 and/or the common law, consider evidentiary objections in light of the pleadings, prepare to cross-examine relevant witnesses, adduce further evidence and compose further submissions in reply. They further assert that it cannot be said that the trial would not have been conducted differently.
7) However, the Respondents do not point to any particulars that would be needed, why there would be any need to consider new or different evidentiary objections, what further evidence would need to be obtained, or why further cross-examination would be necessary. They do not point to any way in which the trial would be conducted differently.
8) It is not sufficient for the Respondents to simply assert prejudice; it must be demonstrated. The Respondents have failed to do so because their position is such as to reveal that these objections as to prejudice are without substance. The sole basis on which the Seventh Respondent has denied liability for the alleged contraventions of the First and Third to Sixth Respondents is that the contraventions did not occur; the Seventh Respondent has never contended an alternative position that, even if the First and Third to Sixth Respondents are found liable for the alleged contraventions, it is nonetheless not liable for those contraventions.
9) That is entirely understandable in light of the fact that the Respondents admit that the First and Third to Sixth Respondents were at all material times:
a) employees, officers and/or agents of the Seventh Respondent;
b) officials of the Seventh Respondent;
c) acting in their capacity, and within the scope of their authority, as an official, employee, officer and/or agent of the Seventh Respondent.
10) Accordingly, it is difficult to see what possible further particulars or evidence could be sought or made for the Seventh Respondent to respond to a case based on s 550 and/or the common law. If the Respondents are suggesting that, for example, if such a case is permitted to be pleaded then they will seek to deny point (c) above, that would represent a very significant change in the forensic landscape that may be expected to necessitate further particulars or evidence. However, despite having the clear opportunity to do so in their further submissions, they have not suggested anything of the sort.
11) The Applicant rejects the suggestion that it has not offered any explanation for its failure to seek to amend its FASOC at an earlier stage. The explanation is given specifically at [22(f)] of the Applicant’s further submissions and otherwise in those submissions as a whole. Most significantly, before and during the trial, the Respondents had accepted the previous understanding of the way s 793 operated.
12) In light of that and the fact that the ‘new’ understanding of s 793 was still emerging from obiter comments of a single Federal Court judge, there was nothing unreasonable in the Applicant proceeding (and continuing) at trial on the basis of that previous understanding. By admitting liability for those contraventions based on the previous understanding of s 793, the Seventh Respondent implicitly accepted that as a matter of law liability can be attributed to it in that way. The Applicant relied on that position to reach an agreement with the Respondents during trial to withdraw certain alleged contraventions. It is unacceptable for the Seventh Respondent now to claim that although it ‘admitted (and still admits) liability for those contraventions; the mode of liability was and remains a matter of indifference to it in the circumstances of those particular contraventions’.
13) The fact that Respondents say they are prepared to consent to the FASOC being amended to allow the Applicant to plead liablity under s 550 and/or the common law in order to give effect to the Seventh Respondent’s admitted contraventions only serves to underscore that there is an acceptable explanation for the delay in making the application to amend.
The Applicant’s Concession(s)
On 15th March 2018, the Applicant wrote to the Court, with relevant copies to the Second Respondent, and to the lawyers for the remaining Respondents. That letter was in the following terms (internal references omitted):
Background
1) Pursuant to the Your Honour's Orders in Chambers dated 10 October 2017, the Applicant filed written submissions dated 27 October 2017 (Applicant’s Further Submissions) addressing the effect of recent Federal Court decisions on the application of s 793 of the Fair Work Act 2009 (FW Act) in attributing liability to a body corporate such as the Seventh Respondent.
2) The First and Third to Seventh Respondents (Respondents) filed their written submissions dated 10 November 2017 (Respondents’ Further Submissions) (in two parts) responding to the Applicant’s Further Submissions.
3) The Applicant filed further written submissions in reply dated 17 November 2017 (Applicant’s Further Submissions in Reply) responding to the Respondents’ Further Submissions.
4) At paragraph [10] of the Applicant’s Further Submissions, the Applicant conceded that the Court is – on the present state of authorities – bound to follow the more recent Federal Court decisions referred to in that paragraph on the question of the Seventh Respondent’s liability for contraventions of s 500 of the FW Act by its officials.
5) In that same paragraph, the Applicant also conceded that to the extent that other provisions of the FW Act alleged to have been contravened require the contravenor to possess a particular status (such as ‘official’ in s 494 and ‘permit holder’ in s 499), the Court would also find the approach in those recent Federal Court decisions to be persuasive.
6) The outcome of those concessions is that the Applicant cannot succeed in respect of the contraventions alleged against the Seventh Respondent as currently pleaded in the Further Amended Statement of Claim dated 2 August 2016 (FASOC) at:
a) paragraphs 23 and 24 (i.e. the s 497 FW Act contraventions);
b) paragraphs 45 and 46 (i.e. the s 499 FW Act contraventions); and
c) paragraphs 63 and 64 (i.e. the s 500 FW Act contraventions).
Intentions indicated by the Applicant in its last submissions
7) At paragraphs [2] and [3] of the Applicant’s Further Submissions and paragraph [3] of the Applicant’s Further Submissions in Reply, it indicated its intention to make an application to the Court to amend the FASOC in order to plead s 550 and common law vicarious liability in conjunction with s 793 in respect of the contraventions alleged against the Seventh Respondent referred to above.
8) In the Respondents’ Further Submissions, the Respondents objected to the Applicant having made submissions relevant to a foreshadowed application to amend the FASOC without a formal application having yet been filed.
9) The Respondents further indicated that they would oppose such an application except in respect of an application to amend the FASOC in order to plead the Seventh Respondent’s liability under s 550 of the FW Act and/or the common law for the two contraventions which it had admitted (being a contravention of s 494 by the Sixth Respondent and a contravention of s 499 by the Second Respondent, both on 11 March 2014).
Way forward to resolve the pleading issues
10) Re-pleading the Seventh Respondent’s admitted contraventions
a) The Applicant has determined to seek to amend the FASOC only to the extent that the Respondents indicated that they would consent to the application, as described above.
b) To this end, and in the interests of promoting of the objects in ss 3 and 42 of the Federal Circuit Court of Australia Act 1999 (Cth) and r 1.03 of the Federal Circuit Court Rules 2011 (Cth), the Applicant has obtained the consent of the Respondents to the enclosed Short Minutes of Order which propose orders to be made by Judge Neville in Chambers that will give effect to the agreed amendments to both the FASOC and the Amended Defence (Proposed Orders).
c) The aim of the Proposed Orders, if made by the Court, is to give effect to the amendments which the parties agree should be made to the pleadings without the need for the Applicant or the Seventh Respondent to file any second further amended statement of claim or further amended defence (as the case may be).
11) Not pressing the remaining alleged contraventions of ss 497, 499 and 500 by the Seventh Respondent
The Applicant wishes to inform the Court immediately that it no longer presses the contraventions alleged against the Seventh Respondent in the FASOC at:
a) paragraphs 23 and 24 (i.e. the s 497 FW Act contraventions);
b) paragraphs 45 and 46 (i.e. the s 499 FW Act contraventions) (except in respect of the contravention of s 499 by the Second Respondent on 11 March 2014 and which it is intended will be addressed in the proposed orders to amend the FASOC); and
c) paragraphs 63 and 64 (i.e. the s 500 FW Act contraventions).
12) However, the Applicant continues to press the contraventions alleged against the Seventh Respondent in paragraphs 77 and 78 of the FASOC (i.e. the s 503 FW Act contraventions). In the Applicant’s view, as currently pleaded, these alleged contraventions are not impacted by the recent Federal Court decisions concerning s 793 because s 503 is directed to a “person” and can therefore be directly contravened by a body corporate such as the Seventh Respondent.
13) As a consequence of paragraphs 11 and 12 above, the Applicant no longer presses the declarations sought in paragraph 79(w) of the FASOC except to the extent that they relate to:
a) the Seventh Respondent’s admitted contraventions, pursuant to s 550 of the FW Act, by reason of the respective contraventions set out in Orders (a) and (g); and
b) the Seventh Respondent's alleged contraventions of s 503 of the FW Act by reason of the respective contraventions set out in Orders (s) – (v).
14) The Applicant has provided a copy of this letter to the Respondents prior to sending it to the Court and has also sent them a copy in final form.
On 22nd January 2019, the Applicant wrote again to the Court, with the consent of the Respondents. Relevantly, that letter stated (citations omitted):
Background
2) On 20 March 2018, the applicant emailed Chambers attaching a letter (March Letter) which outlined a number of matters in respect of the contraventions pleaded in the Further Amended Statement of Claim (FASOC) concerning the Seventh Respondent (the CFMEU).
3) A copy of that correspondence is enclosed for ease of reference. In summary, as His Honour may recall, the applicant:
a) Confirmed the concessions, made in the applicant's further submissions in reply, that the applicant was unlikely to succeed on those parts of its claim against the Seventh Respondent that alleged liability of the CFMEU in respect of:
i)the s 497 Fair Work Act 20019 (FW Act) contraventions;
ii)the s 499 FW Act contraventions; and
iii)the s 500 FW Act contraventions.
b) Confirmed that the applicant was not pressing those parts of its claim alleging contraventions against the Seventh Respondent at:
i) paragraphs 23 and 24 of the FASOC (ie the s 497 FW Act contraventions)
ii) paragraphs 45 and 46 of the FASOC (ie the s 499 FW Act contraventions); and
iii) paragraphs 63 and 64 of the FASOC (ie the s 500 FW Act contraventions).
c) Confirmed the applicant did not, as a result of the matters summarised at a)–0 above, press for declarations sought in paragraph 79(w) of the FASOC except to the extent that they related to the Seventh Respondent’s admitted contraventions (by application of s 550 of the FW Act) and 503 of the FW Act.
d) Confirmed that the applicant otherwise continued to press the contraventions alleged against the Seventh Respondent in paragraphs 77 and 78 of the FASOC (ie the s 503 FW Act contraventions).
e) By consent, sought leave to amend the FASOC to plead liability of the Seventh Respondent, by application of s 550, in respect of the two contraventions admitted by the Seventh Respondent (being the contravention of s 494 by the Sixth Respondent and the contravention of s 499 by the Second Respondent, both on 11 March 2014).
4) By Order made on 26 March 2018, his Honour permitted the amendments to the pleadings foreshadowed in our correspondence of 8 March 2018.
Judgment on the liability of the Seventh Respondent
5) His Honour's approach to the liability of the Seventh Respondent is outlined at paragraphs 656–681 of the Judgment, with his Honour finding at 682 that the Seventh Respondent is liable, pursuant to s 793 of the FW Act, for "those contraventions established against each of the individual respondents".
6) In finding that the Seventh Respondent is liable, his Honour's reasons analyse and refer to a number of authorities on the operation of s 793 of the FW Act, including Leighton Contractors and Kaizen Hospitals, as well as the recent decision of ABCC v CFMEU 2018.
7) His Honour also refers to and quotes from the parties respective submissions at paragraphs 657–659.
8) It is not clear from the Judgment whether his Honour had regard to the parties further submissions, being:
a) the further submissions of the respondents (filed 10 November 2017); and
b) the applicant's further submissions in reply (filed 17 November 2017).
9) In particular, it is not apparent whether his Honour had regard to the concessions made by the applicant in its further submissions in reply or the communication in the March Letter to the effect that the applicant did not press certain contraventions against the Seventh Respondent, namely, those contraventions that alleged liability under s 793 of the FW Act for:
a) the s 497 FW Act contraventions;
b) the s 499 FW Act contraventions; and
c) the s 500 FW Act contraventions.
10) Consistent with the March Letter, and the Orders of 26 March 2018, the only contraventions the applicant pressed against the Seventh Respondent were:
a) the s 503 FW Act contraventions—ie liability for the contraventions pleaded (and found substantiated by his Honour) in respect of the conduct of:
i) the First Respondent on 30 October 2013;
ii) the First Respondent on 20 January 2014; and
iii) the Fourth Respondent on 11 March 2014; and
b) the admitted s 550 FW Act contraventions, being liability in respect of a contravention of s 494 by the Sixth Respondent and a contravention of s 499 by the Second Respondent, both on 11 March 2014.
11) In circumstances where the applicant did not otherwise press the allegations of liability under s 793 of the FW Act against the Seventh Respondent, the applicant is concerned that the Judgment does not accurately reflect the case pleaded, as pressed by the applicant, and in those circumstances, that entering orders based on the current Judgment may lead to error.
Consideration & Disposition
First, under the general law and in particular according to basal principles of vicarious liability, it has been held that a Union will, or would, be liable for the conduct of Union officials acting within the course of their authority.[5]
[5] Silvestri Pty Ltd v Construction, Forestry, Mining and Energy Union [2007] FCA 1047 (Gyles J). Cf. the comments of the High Court in Yorke v Lucas (1985) 158 CLR 661 at 670 ff regarding a person “knowingly concerned in, or party to, a contravention.”
Secondly, subject to what is said below, the comments made in the principal judgment, at [672] – [680], regarding the Full Court decisions in Leighton Contractors and Kaizen Hospitals, and the first instance decision of Flick J in ABCC v CFMEU 2018, remain generally apposite and applicable to the contraventions pleaded in the current proceedings.[6]
[6] Australian Workers’ Union v Leighton Contractors Pty Ltd (2013) 209 FCR 191 (“Leighton Contractors”); Australian Nursing and Midwifery Federation v Kaizen Hospitals (Essendon) Pty Ltd (2014) 228 FCR 225 (“Kaizen Hospitals”); Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2018] FCA 42 (“ABCC v CFMEU 2018”)
Thirdly, it is as well to record (if not to repeat, and for ease of reference) here the following from the Applicant’s “Further Submissions” (at par.8) regarding the first instance decisions of the Federal Court relied upon by the Respondents, and the Applicant’s acceptance of the import of those decisions (internal citations omitted):
The effect of these decisions is that s 793 of the FW Act may not be relied upon in and of itself to deem liability on the part of a registered organisation in respect of contraventions of s 500 by its officials who are permit holders. However, the decisions demonstrate that such liability may be established under s 550 by reason of the registered organisation having been ‘involved in’ those contraventions.
Fourthly, in my view, there is a certain, if not a significant, anomaly arising from the Seventh Respondent Union’s limited admissions. On the one hand, the Union admits liability in relation to the conduct of Mr Kivalu and Mr Miller, both employees and officials of the Union. On the other hand, the Union denies liability (under s.793 of the Act) for the conduct and actions of other employees and officials, some of whom are/were very senior officials (e.g. Mr Hall, Mr O’Mara and Mr Hamilton), and who were clearly acting within the scope of their relevant authority.
Fifthly, for present purposes, in the light of:
i)The comments of McHugh J in Coleman v Power, set out at the commencement of these reasons; and
ii)The concession(s) made by the Applicants (set out above) regarding certain recent decisions of the Federal Court of Australia and their binding import on this Court, and
iii)the Applicant consequently no longer pressing contraventions as pleaded against the Seventh Respondent;
The Court must accept (a) the concessions of the Applicant and (b) the submissions on behalf of the Seventh Respondent Union. These concessions must lead to the result that, other than as admitted regarding the contraventions pleaded against Mr Kivalu and Mr Miller, the contraventions otherwise pleaded against the Seventh Respondent cannot succeed and must be dismissed.
Put another way, summarily: the resolution of the claims made by the Applicant against the Seventh Respondent Union ultimately turn on (a) the way the claims were pleaded by the Applicant, and (b) the concessions made by the Applicant in relation to the import of certain decisions of the Federal Court of Australia regarding the operation of s.793 of the FW Act.
For the reasons given, the Court makes the following Orders:
a)Within 28 days of the date of these Orders, being by 18th October, the parties are to:
i)Jointly provide to Chambers via email to [email protected] with a Minute of Declarations and Orders reflecting the findings against the Respondents set out in the judgments dated 7th December 2018 and 20th September 2019 and
ii)Jointly file an agreed Minute in relation to the procedural course for the matter regarding penalties.
I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Neville
Associate:
Date: 20 September 2019
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