Construction, Forestry, Mining and Energy Union v Alfred

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FEDERAL COURT OF AUSTRALIA

Construction, Forestry, Mining and Energy Union v Alfred [2011] FCAFC 13

Citation: Construction, Forestry, Mining and Energy Union v Alfred [2011] FCAFC 13
Appeal from: Alfred v Construction, Forestry, Mining & Energy Union & Ors [2009] FMCA 613; Alfred v Construction, Forestry, Mining & Energy Union & Ors (No 2) [2009] FCMA 1003
Parties: CONSTRUCTION, FORESTRY, MINING & ENERGY UNION, CONSTRUCTION, FORESTRY, MINING & ENERGY UNION (NSW BRANCH) and SALVATORE MANNA v GREGORY CHARLES ALFRED
File number: NSD 1272 of 2009
Judges: BUCHANAN, FLICK AND KATZMANN JJ
Date of judgment: 10 February 2011
Catchwords:

INDUSTRIAL LAW – appeal from Federal Magistrates Court of Australia – requirements under section 789 of the Workplace Relations Act 1996 (Cth) – meaning of intent to coerce – liability of state union branches under Part 16 of the Workplace Relations Act 1996 (Cth)

EVIDENCE – appellate jurisdiction – findings of fact based on credibility assessment by court at first instance – review of evidence – appellable error – approach to be taken by appellate court

Legislation: Building and Construction Industry Improvement Act 2005 (Cth) s 57
Federal Court of Australia Act 1976 (Cth) s 24(1)(d)
Workplace Relations Act 1996 (Cth) ss 779, 782, 783, 785, 789, 807, 809
Cases cited: Abalos v Australian Postal Commission (1990) 171 CLR 167
Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833; 117 FCR 424
CSR Ltd v Della Maddalena [2006] HCA 1; 224 ALR 1
Devers v Kindilan Society [2010] FCAFC 72
Devries v Australian National Railways Commission (1993) 177 CLR 472
Dovuro Pty Ltd v Wilkins [2000] FCA 1902; 105 FCR 476
Farrington v Deputy Commissioner of Taxation [2002] FCA 1013; 50 ATR 429
Finance Sector Union of Australia v Commonwealth Bank of Australia (2000) 106 FCR 16
Fox v Percy (2003) 214 CLR 118
Hadgkiss v Sunland Constructions Pty Ltd (2007) 158 FCR 193; 161 IR 317
Jardein Pty Ltd v Stathakis [2007] FCAFC 148
Jones v Hyde (1989) 63 ALJR 349; 85 ALR 23
Knight v Beyond Properties Pty Ltd [2007] FCAFC 170
Kovan Engineering (Aust) Pty Ltd v Gold Peg International Pty Ltd [2006] FCAFC 117
Kowalski v Domestic Violence Crisis Service [2005] FCA 12
Leveraged Equities Ltd v Goodridge [2011] FCAFC 3
Li Pei Ye v Crown Ltd [2004] FCAFC 8
National Union of Workers v Qenos Pty Ltd (2001) 108 FCR 90
Seven Network (Operations) Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (2001) 109 FCR 378
Tasmanian Sandstone Quarries Pty Ltd v Legalcom Pty Ltd [2010] SASCFC 6
Wade v Australian Railway Historical Society (South Australian Division) (t/as Steamranger) [2000] SASC 233; 77 SASR 221
Warren v Coombes (1979) 42 CLR 531
Whittaker v Child Support Registrar [2010] FCAFC 112
Williams v Construction, Forestry, Mining and Energy Union [2009] FCA 223
Yousif v Commonwealth Bank of Australia [2010] FCAFC 8; 193 IR 212
Date of hearing: 13…
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Details
Case
[2011] FCAFC 13
Decision Date

CaseChat Overview and Summary

The appeal in this matter was brought by the Construction, Forestry, Mining and Energy Union and its New South Wales Branch against a decision of the Federal Magistrates Court of Australia. The underlying dispute involved allegations that the unions had engaged in conduct intended to coerce individuals into joining the union, in breach of section 789 of the Workplace Relations Act 1996 (Cth). The Federal Magistrates Court found in favour of the respondent, and the unions appealed this decision to the Federal Court of Australia.

The primary legal issues for the court to decide were whether the Federal Magistrates Court had correctly interpreted the requirements of section 789 of the Workplace Relations Act 1996 (Cth), particularly in relation to the meaning of the intent to coerce, and whether the evidence supported a finding that the unions were liable under Part 16 of the Act. The court also had to consider the approach to be taken by an appellate court in reviewing findings of fact based on credibility assessments made by the court at first instance.

The Federal Court of Australia reviewed the evidence and found that the Federal Magistrates Court had not erred in its assessment of the credibility of the witnesses. The court held that the findings of fact based on credibility assessments are generally not reviewable on appeal unless there is incontrovertible evidence or compelling inferences that demonstrate the trial judge's conclusions were erroneous. The appellate court found no such error in this case. The court further found that the New South Wales Branch was not outside the operation of Part 16 of the Workplace Relations Act 1996 (Cth), as required by section 785(1)(f)(ii) of the Act.

Given that the appellants failed to establish any "appellable error" on the part of the Federal Magistrates Court and the specific issues raised on appeal were limited, the appeal was dismissed. The Federal Court of Australia upheld the decision of the Federal Magistrates Court in its entirety.

ORDERS:
1. The appeal be dismissed.

Orders

Orders of the court

1. The appeal be dismissed.

Note:

Background

Background to the litigation

The instruction in those cases (and this was the point which required direct attention in Fox v Percy) does not have the consequence that conclusions based on credibility findings are unreviewable but, as emphasised in the passage which follows, the circumstances which might justify an appeal court acting contrary to or in disregard of credibility findings are limited. The majority judgment in Fox v Percy said, in that respect, (at [28]-[29]):28 Over more than a century, this Court, and courts like it, have given instruction on how to resolve the dichotomy between the foregoing appellate obligations and appellate restraint. From time to time, by reference to considerations particular to each case, different emphasis appears in such reasons. However, the mere fact that a trial judge necessarily reached a conclusion favouring the witnesses of one party over those of another does not, and cannot, prevent the performance by a court of appeal of the functions imposed on it by statute. In particular cases incontrovertible facts or uncontested testimony will demonstrate that the trial judge's conclusions are erroneous, even when they appear to be, or are stated to be, based on credibility findings. 29 That this is so is demonstrated in several recent decisions of this Court. In some, quite rare, cases, although the facts fall short of being “incontrovertible”, an appellate conclusion may be reached that the decision at trial is “glaringly improbable” or “contrary to compelling inferences” in the case. In such circumstances, the appellate court is not relieved of its statutory functions by the fact that the trial judge has, expressly or implicitly, reached a conclusion influenced by an opinion concerning the credibility of witnesses. In such a case, making all due allowances for the advantages available to the trial judge, the appellate court must “not shrink from giving effect to” its own conclusion …(Emphasis added - footnotes omitted) McHugh J said (at [90]):It is a serious mistake to think that anything said in Abalos or Devries necessarily prevents an appellate court from reversing a trial judge's finding when it is based, expressly or inferentially, on demeanour. Those cases recognise - in accordance with a long line of authority - that it may be done. But there must be something that points decisively and not merely persuasively to error on the part of the trial judge in acting on his or her impressions of the witness or witnesses. Recently in State Rail Authority (NSW) v Earthline Constructions Pty Ltd (in liq), for example, this Court held that undisputed and documentary evidence was so convincing that no reliance on the demeanour of witnesses could rebut it.(Emphasis added - footnote omitted) Although a headnote in a published report, even in an authorised series such as the Commonwealth Law Reports, may not be substituted for, or contradict, the text of the judgments in the case in question, it is instructive to note the principle for which Fox v Percy is said by the headnote to be authority (at page 118):A finding of fact by a trial judge, based on the credibility of a witness, may only be set aside upon appeal where incontrovertible facts or uncontested testimony demonstrate that the judge's conclusions are erroneous or where it is concluded that the decision at the trial was glaringly improbable or contrary to compelling inferences in the case.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

However, this finding of fact does not conclude the question of whether a breach of s 789 of the WR Act was committed by Mr Manna (and therefore the CFMEU and the New South Wales branch).Difficulties with the FMCA’s conclusions Notwithstanding the FMCA’s acceptance of Mr Holm’s evidence, and my acceptance that the words spoken by Mr Manna referred sufficiently to the question of union membership, there remain nevertheless the two issues I earlier identified which depend on inferences to be drawn from the accepted evidence, or on legal conclusions reached in the case, rather than on findings of fact turning on credit.Third persons I cannot find anywhere in Mr Holm’s evidence, or elsewhere, an adequate foundation for the contention that Mr Manna intended that what he said would coerce persons (other than Mr Holm), who were engaged by Anything Concrete, to become members of either the CFMEU or the New South Wales branch. Accepting for the moment that Mr Manna, by the threats he made against Mr Holm and his partners, intended to effectively negate any choice Mr Holm might have about the question of union membership (a matter to which further attention needs to be given) I do not see how that circumstance could, in the present case at least, provide sufficient evidence of an intention to coerce others who had not at that stage been identified to Mr Manna. The link between Mr Manna’s actions and any illegitimate pressure on persons who might have been engaged by Anything Concrete to perform work on the project was not established. There was no evidence about the persons who had been engaged to work on the project, if any had been by 11 April 2006. There was no evidence of any communication to them of any statements made by Mr Manna, much less that such statements as were made to Mr Holm could represent pressure on those persons with respect to the question of union membership. Section 789 of the WR Act required a direct connection between statements made to a person and the application of illegitimate pressure to that person or to third persons. It is insufficient that the person to whom the statements were made might have a compelling reason to encourage union membership in a third party. The pressure must be felt by the third party, even though the threat was made directly to a different person. It is necessary that some direct interest of the third party be thereby engaged in a way which effectively negates the choice of that third party. Those conditions were not met in the present case. However, although I think that the FMCA made an error in concluding that the respondent had proved that Mr Manna had an intent to coerce persons other than Mr Holm to join either of the unions, in view of the way the case was pleaded that does not mean necessarily that no breach of s 789 of the WR Act occurred. The FMCA found that s 789 had been breached both because of a proved intent to coerce Mr Holm and a proved intent to coerce other persons. Those allegations were made in the alternative. No complaint was made about that on the appeal. Ultimately, a single breach of s 789 was found to have been established. That conclusion may be sustained by reference, if necessary, to coercion of Mr Holm only. Counsel for the appellant accepted as much.

Ratio Decidendi

Legal Principle Established

Secondly, as contended by a Notice of Contention filed in the appeal, a sufficient connection to the New South Wales branch, having regard to Mr Manna’s conduct which is to be imputed to it, arises from s 785 of the WR Act, which applies Part 16 of the WR Act as follows:785 Constitutional corporations(1) This Part applies to the following conduct:…..(f)conduct carried out with intent to directly affect a person in the capacity of:…(ii) a contractor, or prospective contractor, of a constitutional corporation; The partners of Anything Concrete contracted with Conform, which itself took a contract from North East. The matters pleaded in the amended statement of claim alleged sufficient material facts which would, if proved, sustain a conclusion that Conform and North East were each constitutional corporations. The evidence sufficiently proved those facts. That was sufficient to engage the operation of s 785(1)(f)(ii) with the result that the New South Wales branch was not outside the operation of Part 16 of the WR Act. As a result, there is no separate basis to dismiss the proceedings against the New South Wales branch.Conclusion A challenge to the penalties imposed was withdrawn by the written submissions filed for the appellants. The arguments upon which the appellants rely having been rejected, the appeal should be dismissed. This is an appeal from two decisions of a Federal Magistrate, the first given on 10 July 2009 (Alfred v Construction, Forestry, Mining & Energy Union [2009] FMCA 613, 185 IR 325); the second given on 20 October 2009 (Alfred v Construction, Forestry, Mining & Energy Union (No 2) [2009] FMCA 1003). The Notice of Appeal was filed in this Court on 10 November 2009 and the Respondent filed a Notice of Contention on 18 December 2009. The opportunity has been taken to read the reasons for decision of Buchanan J. His Honour’s careful and detailed review of the evidence advanced before the Federal Magistrate removes any necessity to again do so. Concurrence is expressed with the conclusion of Buchanan J that the appeal is to be dismissed. Less reservation is experienced, however, in reaching that conclusion than that expressed by Buchanan J, primarily because of two inter-related considerations, namely:·the necessity for the Appellants to establish “appellable error” on the part of the Federal Magistrate and their failure to do so; and ·the manner in which the proceeding was conducted before the Federal Magistrate and the confined issues raised for resolution on appeal. The jurisdiction presently being exercised in this appeal is that conferred by s 24(1)(d) of the Federal Court of Australia Act 1976 (Cth), namely the jurisdiction to hear and determine appeals from judgments of the Federal Magistrates Court. That jurisdiction is in the nature of a complete re-hearing: Farrington v Deputy Commissioner of Taxation [2002] FCA 1013, 50 ATR 429 per Kenny J; Kowalski v Domestic Violence Crisis Service [2005] FCA 12 at [51] per Madgwick J. See also: Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833, 117 FCR 424.