Construction, Forestry, Mining and Energy Union v Clarke

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FEDERAL COURT OF AUSTRALIA

Construction, Forestry, Mining and Energy Union v Clarke [2006] FCA 245

WORKPLACE RELATIONS – appeal from Industrial Magistrate – charge alleging withdrawal of labour on three occasions – alleged failure to comply with certified agreement – finding of contravention of union and its officers engaged in industrial action for the purpose of supporting or advancing claims against the employer in respect of the employment of employees while agreement in place – no duality in juristic existence of union and members - conduct of members is conduct of union – alleged preventative action by union officials not therefore exonerating – reasons for Industrial Magistrate’s decision not inadequate – no failure to apply Briginshaw standard – no erroneous interpretation of dispute settlement procedure – no denials of procedural fairness

Workplace Relations Act 1996 (Cth) ss 4, 4(1), 4(8), 84, 170LL, 170LT, 170MN, 178, 178(1), 178(4)

Australian Industry Group v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (2003) 130 FCR 524
Briginshaw v Briginshaw (1938) 60 CLR 336
Concrete Constructions Pty Ltd v Plumbers and Gasfitters Employees’ Union (No 2) (1987) 15 FCR 64
Construction, Forestry, Mining and Energy Union v Clarke (2005) 144 FCR 226
Kelly v Construction, Forestry, Mining and Energy Union (1994) 56 IR 373
Rosenberg v Percival (2001) 205 CLR 434
Rowe v Transport Workers’ Union (1998) 90 FCR 95
Skilled Engineering Limited v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (2001) 108 IR 116
Tesco Supermarkets Ltd v Nattras (1971) 2 WLR 1166
Waterways Authority v Fitzgibbon (2005) 221 ALR 402

CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION, MICHAEL POWELL and WALTER VINICIO MOLINA v MARCUS THOMAS CLARKE
WAD 112 of 2005

NICHOLSON J
17 MARCH 2006
PERTH


IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

WAD 112 OF 2005

ON APPEAL FROM THE WESTERN AUSTRALIAN INDUSTRIAL MAGISTRATE’S COURT

BETWEEN:

CONSTRUCTION, FORESTRY, MINING
AND ENERGY UNION
FIRST APPELLANT

MICHAEL POWELL
SECOND APPELLANT

WALTER VINICIO MOLINA
THIRD APPELLANT

AND:

MARCUS THOMAS CLARKE
RESPONDENT

JUDGE:

NICHOLSON J

DATE OF ORDER:

17 MARCH 2006

WHERE MADE:

PERTH

THE COURT ORDERS THAT:

The appeal is dismissed.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.


IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

WAD 112 OF 2005

ON APPEAL FROM THE WESTERN AUSTRALIAN INDUSTRIAL MAGISTRATE’S COURT

BETWEEN:

CONSTRUCTION, FORESTRY, MINING
AND ENERGY UNION
FIRST APPELLANT

MICHAEL POWELL
SECOND APPELLANT

WALTER VINICIO MOLINA
THIRD APPELLANT

AND:

MARCUS THOMAS CLARKE
RESPONDENT

JUDGE:

NICHOLSON J

DATE:

17 MARCH 2006

PLACE:

PERTH

REASONS FOR JUDGMENT

  1. This is an appeal from the judgment of the Industrial Magistrate’s Court (‘the IM Court’) on 28 April 2005. By the orders the IM Court imposed a penalty of $6000 on the first appellant (‘the Union’), $1500 on the second appellant (‘Mr Powell’) and $1000 on the third appellant (‘Mr Molina’). The respondent to the appeal (‘Mr Clarke’) is an inspector appointed pursuant to s 84 of the Workplace Relations Act 1996

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Details
Case
[2006] FCA 245
Decision Date

CaseChat Overview and Summary

In the case of Construction, Forestry, Mining and Energy Union v Clarke, the dispute arose from an industrial action taken by employees against their employer. The Construction, Forestry, Mining and Energy Union (the Union) appealed against a decision of an Industrial Magistrate who found that the Union had breached certain provisions of the Industrial Relations Act 1999 (the Act). The employees had gone on strike on three occasions, and the Union was alleged to have taken industrial action in contravention of the Act. The Union contested the findings of the Industrial Magistrate and argued that there was no breach of the Act, among other things.

The key legal issues before the court were whether the Industrial Magistrate erred in his interpretation of the Act, whether he failed to provide adequate reasons for his decision, and whether he erred in applying the Briginshaw standard of proof. The Union argued that the Magistrate did not properly consider the evidence or apply the Briginshaw standard, and that there was no breach of the Act because the industrial action was taken in accordance with the dispute resolution procedures.

The court found that there was no error in the Industrial Magistrate's decision. The court held that the Magistrate had correctly interpreted the Act and applied the Briginshaw standard of proof. The evidence supported the Magistrate's findings that the Union had breached the Act by taking industrial action without following the dispute resolution procedures. The court found that the Magistrate's reasons were sufficient and that he had carefully considered the evidence.

The appeal was dismissed, and the decision of the Industrial Magistrate was upheld. The Union was found to have breached the Act by engaging in industrial action without following the required dispute resolution procedures.

Orders

Orders of the court

The appeal is dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Section 178(1) of the Act relevantly provides that where an organisation or person bound by (among other things) a certified agreement breaches a term of the agreement, a penalty may be imposed by the Court or a court of competent jurisdiction (which includes a Magistrates Court). Maximum penalties are prescribed by s 178(4). EVIDENCE The respondent’s witnesses at the hearing were as follows: The respondent; Mr SG Obrecht, an employee of WorkSafe Western Australia which is a division of the Department of Consumer and Employment Protection who visited the Project on 9 July 2004; Mr A Radalj, civil engineer, a project manager with the Employer from 22 March 2004; Mr NK Richardson of BG & E Consulting Engineers as at July 2004 who was a superintendent’s representative at the Project; Mr JA Hartley-Turner, senior project engineer at the Project; Mr DB Meaney, operations manager for the Employer for just over 10 months; and Mr CD Gibson, industrial relations consultant. The appellants called the following witnesses: Mr Powell, who was employed by the Union as an organiser to recruit members on the building sites and to address problems they may have with wages, health and safety issues; Mr R Aleknavicius, a crane operator employed by the Employer on the Project, a member of the Union at the time of his testimony; Mr Molina, an organiser for the Union; Mr PG Levy, a rigger, scaffolder and shop steward with the Employer at the Project; and Mr TR Kucera, legal officer for the Union, who stated that he took his instructions from Mr Reynolds, the Secretary of the Union and additionally from time to time acted for individual members in relation to matters.INDUSTRIAL MAGISTRATE’S REASONS AND FINDINGS After referring to the nature of the claim, relevant portions of the Agreement and issues which had been concerning the Employees in relation to the Agreement, his Honour found that it was not in issue that the Employees who were the subject of the Agreement took industrial action by going on strike and leaving the site (of the Project) on 9 July 2004, 29 July 2004 and on 19-20 August 2004. CLAIMANTS’ CASE His Honour said that the claimant’s case was that preceding each decision by the Employees to withdraw their labour a meeting had been arranged and organised by the shop steward, Mr Levy. All these meetings had been attended by Mr Powell who was accompanied by Mr Buchan (an employed organiser of the Union), Mr Molina and also Mr McDonald (one of the Union’s assistant secretaries). Each meeting had been attended by Mr Levy. His Honour described the evidence of Mr Radalj, the civil engineer and project manager, in the following terms:‘Radalj gave evidence of the attendance on site of Powell and Buchan on the morning of 9 July 2004. He said Powell told him he was there to investigate the incident on 8 July 2004 where a truck dumping fill in area B had its tray tip over onto its side. Radalj described Powell as becoming hot-headed after Radalj had queried Powell’s right to enter the site without giving notice. He said Powell had told him to “… off” and that “he would come on site when I want to when it’s to do with the boys’ safety’ and when told that there had already been an investigation into the truck incident Powell said he would do his own investigation and stormed out. Radalj said he was aware of a meeting of basically the entire workforce and Powell. The meeting lasted fifteen to twenty minutes and after it finished Powell came back to the office and said the boys are withdrawing their labour. When asked why, Radalj said Powell told him it was because management had failed to consult about the incident with the truck, the facilities in area D were not up to standard, toilets were not cleaned and there was no first aid box in area D. It was Radalj’s view that the issues were of a minor nature and could have been readily resolved. Relevant to the incident on 29 July 2004 Radalj gave evidence that Powell and Molina came to the site and had a meeting with the workforce. After the meeting Powell and Molina attended at the site office and raised with Radalj the issues of the $22.00 per day allowance and the redundancy payment. On that day the workforce left the site after the meeting.The evidence of Radalj about what took place on 19 August 2004 was that Powell came to the site about 10.00am. He said:“A meeting was held. The meeting was later transferred outside the gates. On the conclusion of the meeting Mr Powell came in and spoke to me and basically said that the workforce is out on strike. I’m not sure if it was one, two or three days. He identified the reasons why they were going on strike. … One of them was that I was that I was hassling people on how to do their job; that I was taking money away from people by saying when they can and cannot work; that I was allowing work to proceed in an unsafe area. I’m pretty sure inclement weather was raised again – about when people can go home.”On all three occasions the workforce went on strike the entire workforce left the site and it is the evidence of Radalj that they did so without the dispute resolution procedures being applied.’

Decision

Reasons for decision

NICHOLSON J
In short I do not perceive any error of law or of fact by the learned Industrial Magistrate in terms of the issues raised by these grounds.LACK OF REASONS FOR DECISION: GROUNDS 4, 20(a), 21, 22 It is firstly contended that the Industrial Magistrate failed to provide any, or any adequate, reasons for the decision that the appellants had breached the Act. It is submitted that he failed to examine the evidence with sufficient care or to explain why important parts of that evidence were apparently rejected: Waterways Authority v Fitzgibbon (2005) 221 ALR 402 at [85]-[87]. The appellants argue that the drawing of the ‘irresistible inference’ was vitiated by error as the effect of the evidence was that it showed the appellants had taken positive steps to prevent the withdrawal of labour: Rosenberg v Percival (2001) 205 CLR 434 at 447-448 per McHugh J. It is further submitted that the resolutions of the Employees were expressions of their will alone. These submissions cannot be accepted in the light of the above resolution of the juridical character of the Union. Ground 20 is directed to ‘the extent that the Learned Industrial Magistrate found that Appellants breach section 178 of the Act (which is denied) …’. I agree with the appellants no such breach was expressly found by the Industrial Magistrate. Section 178 is a facilitative provision appearing in Pt VIII of the Act relating to compliance. The adequacy of the reasons of the Industrial Magistrate in relation to issue of breach of the dispute settlement procedure is considered below in connection with other issues concerning that procedure. Then the appellants contend that the Industrial Magistrate erred to the extent that he found that the appellants had breached s 170MN of the Act on dates other than 29 July 2004. The appeal was conducted on the basis that the finding was only in respect of that date, so that contention does not require further consideration.FAILURE TO APPLY BRIGINSHAW v BRIGINSHAW: GROUNDS 2, 3, 4, 5 AND 6 In Briginshaw v Briginshaw (1938) 60 CLR 336 Dixon J at 362-363 stated that ‘reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved’ so that where there is a serious allegation such satisfaction ‘should not be produced by inexact proofs, indefinite testimony, or indirect inferences’. That is, ‘the nature of the issue necessarily affects the process by which reasonable satisfaction is attained’. The grounds under this head seek to challenge the finding of engagement in industrial action, the reliance on the ‘irresistible inference’, the finding of direct involvement in any industrial action and of the pursuit of the Issues by the appellants. In my view, this ground adds nothing to the first series of grounds considered in the context of the second grouping of grounds. For reasons there given, I have found no error in the conclusions of the Industrial Magistrate in respect of the matters raised by these grounds. There was in his reasoning in that respect no failure to bring requisite care to the evidence upon which he founded his findings and reasoning. His reasons were not dependent upon inexact proofs, indefinite testimony, or indirect inferences. I do not consider this ground succeeds.ERRONEOUS INTERPRETATION OF DISPUTE SETTLEMENT PROCEDURE: GROUNDS 12, 13 AND 14

Ratio Decidendi

Legal Principle Established

Established by: NICHOLSON J

Full text does not contain this section.