Cozadinos v CFMEU - [2008] FMCA 1591

FEDERAL MAGISTRATES COURT OF AUSTRALIA

COZADINOS v CFMEU & ANOR

[2008] FMCA 1591

INDUSTRIAL LAW – Alleged contraventions of Building and Construction Industry Improvement Act and Workplace Relations Act – contravention established – declaration made.

Building and Construction Industry Improvement Act 2005, ss.4, 36, 37, 38, 69, 69(3)
Workplace Relations Act 1996, ss.420, 494, 826(2)

Hadgkiss v Construction, Forestry, Mining and Energy Union (CFMEU) [2008] FCAFC 22

Applicant:

MICHELLE COZADINOS

First Respondent:

CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION

Second Respondent:

CRAIG JOHNSTON

File Number:

MLG 372 of 2008

Judgment of:

Burchardt FM

Hearing dates:

6, 20 and 21 October 2008

Date of Last Submission:

21 October 2008

Delivered at:

Melbourne

Delivered on:

10 December 2008

REPRESENTATION

Counsel for the Applicant:

Mr P. O'Grady

Solicitors for the Applicant:

Minter Ellison

Counsel for the Respondents:

Mr E. White

Solicitors for the Respondents:

Slater & Gordon

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 372 of 2008

MICHELLE COZADINOS

Applicant

And

CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION

First Respondent

CRAIG JOHNSTON

Second Respondent

REASONS FOR JUDGMENT

Mark Dubberley is a truck driver. At about 1.00 pm on 19 March 2007, he went to the Geelong campus of Deakin University at Waurn Ponds to deliver a load of building materials.
Mr Dubberley was not able to deliver his materials and had, after a time, to leave and do other work. He returned later that afternoon and successfully delivered the materials.
The Applicant says that Mr Dubberley was prevented from unloading by Craig Johnston, who the Applicant says told a forklift driver, Trevor Grenfell, not to unload the forklift and because further, Mr Johnston removed the key to the forklift.
Mr Johnston says that he did not tell Mr Grenfell not to unload Mr Dubberley's truck and that further, the keys to the forklift were missing and could not be found.
I do not believe Mr Johnston. I have concluded, for the reasons that follow, that he did indeed instruct Mr Grenfell not to unload the truck and that the keys were not missing. Mr Johnston removed them and retained them.
I have concluded that Mr Johnston and the Construction, Forestry, Mining and Energy Union (“CFMEU”) contravened both s.36 of the Building and Construction Industry Improvement Act 2005 (“the BCII Act”) and s.494 of the Workplace Relations Act 1996 (“the WR Act”) because of the conduct to which I have just referred.
The issues that fall to be determined in this proceeding are:
a)various formal matters, a number of which are either admitted or not the subject of any serious dispute;
b)determining the facts that give rise to the factual conclusions already expressed; and
c)whether the facts as found give rise to the contraventions of the BCII Act and the WR Act that are alleged.

Formal matters

The Applicant's standing to bring the proceeding is not admitted by the Respondents. I am satisfied:
a)that the Applicant was appointed as an Australian Building and Construction Inspector pursuant to the BCII Act on 27 February 2007 (exhibit A7); and
b)that because of the terms of the BCII Act and the WR Act, the Applicant is entitled to bring this proceeding seeking the relief sought (statutory details are set out in paragraph 1 of the Applicant's outline of submissions).
The Respondents concede that the CFMEU is and was at all material times:
a)an organisation of employees registered under the WR Act;
b)a body corporate;
c)a party to and bound by the Wycombe Constructions Pty Ltd and CFMEU Building and Construction Industry Agreement 2005‑2008 (“the Wycombe Agreement”);
d)an industrial association for the purposes of s.4 of the BCII Act;
e)a building industry participant for the purposes of s.4 of the BCII Act; and
f)a building association for the purposes of s.4 of the BCII Act.
The Respondents also concede that Craig Johnston, the Second Respondent, was at all relevant times:
a)employed by Wycombe to perform work in relation to the refurbishment of the medical school of the Geelong campus of Deakin University at Waurn Ponds;
b)a shop steward at the Deakin site for the Construction and General Division of the CFMEU;
c)a member of the CFMEU;
d)bound by the Wycombe Agreement;
e)an officer of the CFMEU for the purposes of s.69(3) of the BCII Act; and
f)a building industry participant for the purposes of s.4 of the BCII Act.
The Respondents further admit that the Wycombe Agreement:
a)commenced operation on 27 April 2006;
b)has a nominal expiry date of 31 March 2008;
c)is an industrial instrument for the purposes of s.4 of the BCII Act;
d)is a pre-reform certified agreement for the purposes of items 1 and 6 of schedule 7 to the WR Act; and
e)at all relevant times regulated the terms and conditions of employment of employees of Wycombe Constructions Pty Ltd at the Deakin site, who are members of the CFMEU.

An examination of the factual controversies

As I have already said, it is common cause that Mr Dubberley wanted to unload his truck at Deakin University but was unable to do so. I heard evidence from a number of witnesses who had been present for some or all of the relevant events.
I should make it clear at the outset that in circumstances such as those that obtained here, involving a number of people with slightly but importantly different locations, involving what on any view was something of a row between Mr Gordon, the site supervisor, and Mr Johnston, it is entirely conformable with ordinary human experience that no one witness should necessarily have a complete or accurate recollection of events. This is so both as to recording absolutely everything that occurred and also as to putting events in a temporally correct order. It is in my view notorious that people who experience an event will honestly have different recollections of it.
The Applicant's case was founded on the evidence of Mr Gordon and Mr Dubberley.
Mr Dubberley attended with his truck and wanted to have it unloaded. It seems clear that this sort of unloading was generally done by forklift. There were four employees of Wycombe entitled to use the forklift including Mr Johnston, Mr Browning and Mr Grenfell.
Mr Gordon said that he ordered Mr Grenfell to unload the truck.
His evidence before the Court was that Mr Grenfell moved towards the forklift to unload the truck but that Mr Johnston told him not to do so. At this point, a spirited altercation involving offensive language by both parties took place between himself and Mr Johnston.
Mr Dubberley's evidence was that when he arrived, a person who he thought was called Paul told him that the truck would not be unloaded because of a dispute between the CFMEU and BIG Contractors about the employment of a labourer by BIG.
More importantly, however, Mr Dubberley went on to say that he saw Mr Johnston remove the key to the forklift.
The evidence given by Mr Gordon and Mr Dubberley was entirely consistent with statements - being exhibits A9 and A12 - which they had earlier given to the Applicant at a time in July 2007 (Mr Gordon) and May 2007 (Mr Dubberley) when the events were still relatively fresh within their memory.
Mr Grenfell was not called to give evidence by either party. I draw no inference contrary to either party's case from this but note that I have simply not heard his version of the events.
Mr Johnston's evidence was that he did not like Mr Gordon and that their interpersonal relations had been strained for some time. Taking the evidence as a whole, including that of Mr Gordon, it is clear that those assertions were correct.
Mr Johnston's evidence was that he went to the forklift from the lunch room where he had been sitting with Mr Browning when told to unload the truck. He said that Mr Grenfell moved to unload the truck but indicated to him that he could not do so because the keys were not there. He says that Mr Gordon yelled abusively at Mr Grenfell and it was this that started the argument. Whichever version is correct, it is as I have already said clear that a spirited argument took place.
It should be noted that Mr Browning did not describe the argument as being particularly bad. He said that Mr Gordon was in the habit of screaming and yelling but that he was not doing so on this occasion. Mr Johnston categorically denied removing the keys from the forklift.
It is common cause that Mr Johnston did refuse to unload the forklift when Mr Gordon told him to do so. He elected not to tell Mr Gordon about the assertion that the keys were not available. It is clear from his answers that he did this to be difficult (see transcript P-15 lines 21-23 and P-34 lines 6-11). Mr Gordon required Mr Grenfell and

Mr Johnston to go with him to Vlad Dzajkic, Mr Gordon's supervisor. At this point, Mr Johnston revealed to Mr Dzajkic that the keys were allegedly lost. Mr Dzajkic told them to find them and unload the truck.
Mr Johnston revealed the absence of the keys to Mr Browning.

Mr Johnston then went off to attend to other duties. Mr Browning found the keys to the forklift some time later in the union office on site.
The evidence is that the forklift was stored some distance away from the unloading point at which the dispute with which we are concerned took place. I accept, because it makes commonsense, that the forklift, which belonged to the university and not Wycombe, was collected earlier in the day by one of the four persons licensed to drive it, and brought down to the bottom of the incline constituted by Kings Way, where deliveries were usually received. The evidence suggests that the forklift was generally parked on the other side of Kings Way from the site, near an oval.
It makes sense once again that the forklift was generally parked in such a position as to allow free access to Kings Way for other vehicles.
The evidence also suggests that only Wycombe employees were allowed to use the forklift, possibly for insurance reasons, bearing in mind that it belonged to the university, not Wycombe.
The physical location of the incident can be more clearly understood if one looks at exhibit A8, which is a map of the Deakin University site.
I think that on the day in question, Mr Dubberley turned up at about 1 o'clock. This was not seriously contested. Although much was made by the Respondents of the fact that Mr Dubberley had forgotten a call he made allegedly an hour earlier to Mr Sutcliffe of BIG Contractors, I do not think this is of any great moment. A minor lapse of memory of this sort is not in my view destructive of Mr Dubberley's credibility. I should make it clear that I thought Mr Dubberley gave his answers directly and in an honest and convincing way. He was in my view a witness of truth. Like Mr Gordon, as counsel for the Applicant submitted, he had nothing himself to gain by altering his evidence from the truth.
Mr Grenfell, as I find, moved the forklift from its usual spot to a point close to Mr Dubberley's truck. This is consistent with Mr Dubberley's evidence that he saw Mr Grenfell come down the hill, and is consistent with the fact that it is more probable than otherwise that the forklift had to be moved in order to unload Mr Dubberley's truck. There was another truck at the site at the time, and it seems to me inherently more probable that the forklift would have been parked well out of the way and brought to Mr Dubberley's truck only at need. It was not required to unload the other truck.
It should be noted that neither Mr Browning nor Mr Johnston asserted that they saw Mr Grenfell bring the forklift to the point at which it finally arrived.
Much criticism was advanced of Mr Dubberley's evidence also on the footing that he incorrectly identified Mr Sutcliffe (the person it appears that he usually spoke to called Paul) as having been present on the site.
When one looks at Mr Dubberley's earlier declaration, exhibit A12, it appears that Mr Dubberley had only been to the site some six to eight times. It is natural enough as I find that he assumed that the person to whom he spoke on the day of this incident was indeed the person he spoke to on the telephone. Nonetheless, as counsel for the Applicant submitted, there is no clear evidence that Mr Dubberley had had sufficient speech with Paul over the times that they had spoken, nor that he had met him sufficiently frequently, necessarily to be able to say accurately whether the person with whom he spoke from BIG Contractors was or was not Mr Sutcliffe.
I accept that Mr Sutcliffe was not at the incident on the day, but once again I do not think that this is damaging to Mr Dubberley's credit.
What is clear beyond doubt is that Mr Dubberley saw Mr Johnston remove the keys from the forklift. While it is possible that he has to an extent confused the order of events of the day, he identified

Mr Johnston quite clearly in Court as the person who removed the keys. It was compelling evidence.
That conduct is of course completely inconsistent with what

Mr Johnston himself asserts.
The evidence of Mr Gordon relevantly was that he saw Mr Grenfell walk towards the forklift, and saw and heard Mr Johnston prevent him from unloading the truck. Once again, Mr Gordon has no particular interest in these proceedings. It is in my view fanciful to suggest (and indeed it was not suggested) that he was participating in this proceeding out of malice towards Mr Johnston and fabricating his evidence as a result.
Mr Gordon's evidence is entirely consistent with the refusal of

Mr Johnston to permit the truck to be unloaded.
I should interpolate and say that I found Mr Gordon a very believable witness. That is because he, like Mr Browning, made a concession he did not have to make. At P-28 he conceded that one of the benefits of being employed through a corporate entity was that he could thereby reduce child support to his former wife and that he had both done this and told others on site of it.
That is not an attractive form of conduct, and the fact that Mr Gordon conceded it even though a false answer would have been final and binding as the matter was purely a credit point, does suggest that he was prepared to give honest answers even where they cast himself in a bad light.
It should be noted that Mr Johnston's state of mind was perhaps best revealed by his own admission that when he was in Mr Dzajkic's office he made a remark which he described himself as "smart-arse" (P-16 Line 20).
Contrary to the position contended for by the Applicant, I do not think that on the date of this incident Mr Johnston pressed either for BIG Contractors to employ a labourer or to employ Wayne Thomas as that labourer.
The evidence seems clear to me that for whatever reason, only Wycombe employees could drive the forklift, and the engaging of a labourer by BIG Contractors would not have affected the unloading of the truck one way or the other.
This is perhaps a convenient point to introduce the evidence of

Mr Browning in more detail. Mr Browning is a close friend, as I would infer, of Mr Johnston. They ate lunch every day together for a period of some years. Mr Johnston was the shop steward of the CFMEU on site and the assistant occupational health and safety officer. Mr Browning was the occupational health and safety officer and clearly an active union member.
Mr Browning's evidence relevantly was that the issues of the employment by BIG Contractors of a labourer, and that that labourer be Wayne Thomas, had been resolved prior to this day. For reasons to which I shall come immediately, I accept that evidence.
Mr Browning was a witness who generally impressed me. He did not seek for example to exacerbate the conduct of Mr Gordon, even though it is clear he disliked Mr Gordon himself. He described Mr Gordon's altercation with Mr Johnston on the day in more restrained terms than others.
Mr Browning's evidence also contained one admission against interest of the highest order. Towards the end of cross‑examination,

Mr Browning revealed - bearing in mind he was giving his evidence on Monday, 20 October 2008 - that on the previous Thursday or Friday, Mr Johnston had given him a copy of the transcript of the earlier hearing in this proceeding, including particularly the evidence of those who had been called by the Applicant.
The significance of this concession emerges when it is borne in mind that:
a)I made the usual order for witnesses out on the first day of hearing at a time when Mr Johnston was present; and
b)Mr Johnston went to some lengths in his evidence under cross‑examination to emphasise the impropriety of talking to witnesses about the evidence.
At P-36 the following exchanges took place:
“Have you spoken to Mr Browning about this case, Mr Johnston?

---Once we found that the ABCC was involved, it was all the talk on the job at the time.
Have you spoken to him since the proceeding was issued about this case?---Only in general terms.
About what?---About - he asked me what happened because obviously he's going to (indistinct) but I was told by my solicitor that we couldn't talk in any detail about these things because, being a witness, you can't - we talked in general terms.
Before the court case started, did you talk with him about this case?---I had to ring him and tell him to come and see the solicitor.
Did you discuss the events of 19 March?---We didn't in any great detail, no, because we were instructed by our solicitor we couldn't. But we talked generally, yes.
What did you say? What do you mean by generally?---That there was this issue that the taskforce were chasing us, that what we saw was just a minor issue has now somehow become a Federal Court case. That sort of thing.”
Later, at line 40 on the same page, a further question was asked:
“So what did you say to Mr Browning about that?---"I've been to the lawyers, they want to talk to you, they want to talk to-, you know, find out what your view of what happened was." He came up and had a meeting with them, a different day to the day I went to the lawyers.”
It is clear from these extracts that Mr Johnston was seeking to advance an impression that he had been entirely at arm's length from

Mr Browning in the preparation of the Respondents' case. No other explanation is in any way possible.
The revelation that Mr Browning voluntarily made, that Mr Johnston had given him the transcript, in my view has two forensic consequences:
a)it makes me highly likely to accept, as I do accept, Mr Browning was a witness of truth; and
b)it is extremely damaging to Mr Johnston's credibility.
It should be noted that when I became aware on 20 October 2008 of the transcripts being given to Mr Browning, I required an explanation. Somewhat to my surprise, I was met with a rather combative assertion that there was no misconduct involved. On the following morning, counsel, who had had time to consider his position, totally resiled from the submissions made the day before. Importantly however, he did reveal to me that the decision to call evidence was made on the Wednesday before the trial.
While counsel did use words purporting to take upon himself responsibility for this disgraceful breach of the endeavours to ensure that witnesses do not know the evidence called before they themselves are called that stands at the core of what the witnesses out rule is, the fact is that Mr Johnston did not give the transcript to Mr Browning until the Thursday or Friday on Mr Browning's own evidence.
I have no doubt that Mr Johnston gave the transcript to Mr Browning as Mr Browning asserts. Quite what Mr Johnston's understanding of the legal effects of the rule of witnesses out may be is, of course, not in evidence before me, although it seems far more probable than otherwise that he acted contumeliously in contempt of Court. The evidence at paragraphs 51-52 suggests he well understood what the order I had made meant.

I do not need, however, to determine that issue for these purposes. It is sufficient to contrast Mr Johnston's evidence with what in fact he did. His evidence was designed to put himself at arm's length from
Mr Browning and to assert a position proceeding on the basis of legal advice that he had kept his proper distance from Mr Browning.
Mr Browning's evidence shows that that was not true.
Mr Johnston was simply not telling the truth in respect of that issue, and in my view he was also untruthful when he denied removing the keys to the forklift.
I am entitled to form the most negative views about Mr Johnston's evidence, bearing in mind Mr Browning's concession. I would also say, however, that Mr Johnston, whose manner in giving evidence was assured and to an extent somewhat combative, was in some other respects an unsatisfactory witness. He was pressed as to whether he wanted BIG Contractors to employ Wayne Thomas. Although the matter was put to him on a number of
occasions, he persisted in the evasive response that he had only asked BIG Contractors to engage

Mr Thomas.
It is clear that Mr Johnston wanted BIG Contractors to employ

Mr Thomas for whatever reason. Whether this was because Mr Thomas was an out-of-work union member alone, or whether he had some other closer relationship with Mr Johnston, is neither here nor there. It was perfectly proper for Mr Johnston to want BIG Contractors to employ a CFMEU member, as Mr Thomas as I understand was and is.
Mr Johnston's failure to concede the obvious is a part, albeit a small one, of the negative impression I formed of his evidence. That impression contrasts in the most vivid way with the positive impression I found of the evidence of Mr Dubberley and Mr Gordon.
In truth, counsel for the Respondents was - albeit unintentionally - close to the truth when he described this incident as "two bulls in a paddock".
What happened was that Mr Johnston attended the truck, saw

Mr Gordon as he perceived it behaving rudely to Mr Grenfell, and thereafter he ensured that the truck was not unloaded to spite

Mr Gordon. As Mr Johnston himself said at P-34, he did not tell

Mr Gordon there was no key. He was "just playing the game".
What Mr Johnston did was to prevent Mr Grenfell from unloading the truck, and to remove the keys so it could not be unloaded by anyone else including himself. He did this out of mischief and/or malice.
There were in a sense sequelae to the events involving the unloading of the truck. Following a considerable period of delay during which no doubt the keys were being transported by Mr Johnston to the union office where they were subsequently found, Mr Dubberley left and went away to do other work. When he came back, the truck was unloaded without any difficulty.
That is relevant to a number of issues raised by the Applicant. The Applicant's case was that Mr Johnston's conduct in preventing the unloading of the truck was motivated by three alternative aims:
a)to force BIG Contractors to employ a labourer;
b)to ensure that the labourer so employed was Wayne Thomas; and
c)alternatively, to disrupt work simpliciter.
The fact that the demands about a labourer were not raised when

Mr Dubberley came back suggests that it is very possible that they were not raised in the first place. Somebody seems to have mentioned something to Mr Dubberley about these demands but it was clearly not Mr Johnston or anybody acting on behalf of the CFMEU.
I repeat my earlier finding that I accept Mr Browning's evidence that these issues had been resolved to the union's satisfaction and that of

Mr Johnston prior to this day.
Nonetheless, there was a later meeting involving Sean Riordan, a replacement union organiser, Mr Johnston, and representatives of BIG Contractors. It appears that it is during this meeting that Mr Riordan (who was not called) is alleged to have said words indicating an intention to compel the employment of Mr Thomas. While the evidence of Mr Sutcliffe in particular appeared to suggest that this was so, in the ultimate I accept Mr Browning's explanation as I have said. It is not probable that the CFMEU was doing more than to ensure that a date was ascertained for the start of Mr Thomas' employment. I have no doubt that the pressure that Mr Riordan put on Mr Sutcliffe was at Mr Johnston’s behest (Mr Riordan was a replacement organiser and would have acted only as directed by the shop steward) but this pressure was not connected with Mr Johnston’s capricious conduct on 19 March 2007.
The evidence suggests to me that the number of people being employed by BIG Contractors was increasing to a point at which more mess was being created by BIG-employed tradesmen on site. This was self-evidently resented by Mr Johnston and his co-employees, who were to an extent having to clean up after the BIG employees.
Given that Mr Johnston is a labourer, it is not readily apparent quite why this should be so objectionable. Nonetheless, in the ultimate, while I accept that Mr Johnston and the CFMEU had a significant interest in knowing when it was going to be that the labourer would be employed by BIG Contractors, for the reasons I have given I do not accept that they felt it necessary to impose improper pressure on BIG Contractors to accelerate that employment. In this regard I accept Mr Johnston's evidence that they knew Mr Thomas was going to be employed and all they wanted to do was sort out when it was going to be.
I do not believe that the conduct of Mr Johnston in preventing the unloading of the truck was in any way related to issues to do with employment by BIG Contractors of a labourer, or that the labourer be Mr Thomas.

The consequences of the conduct

Section 38 of the BII Act states:
A person must not engage in unlawful industrial action.
It is noted in s.38 that it is a grade A civil penalty.
Section 37 of the BII Act defines unlawful industrial action as:
Building industrial action is unlawful industrial action if:
(a)the action is industrially-motivated; and
(b)the action is constitutionally-connected action; and
(c)the action is not excluded action.
It is clear from the materials in this case that such action as took place was constitutionally-connected action and that it was not excluded action. The issue is whether it was industrially-motivated.
"Industrially-motivated" is defined in s.36 of the BII Act and it is in the following terms:
"Industrially-motivated" means motivated by one or more of the following purposes or by purposes that include one or more of the following purposes:
(a)supporting or advancing claims against an employer in respect of the employment of employees of that employer;
(b)supporting or advancing claims by an employer in respect of the employment of employees of that employer;
(c)advancing industrial objectives of an industrial association;
(d)disrupting the performance of work.
For the reasons I have already indicated in respect of the claims about employment by BIG Contractors of a labourer and Mr Thomas, I do not think that the Applicant makes out her case under the definitions (a), (b) and (c). However, it seems clear to me that (d), disruption of the performance of work, has taken place.
Building industrial action is also defined in s.36. Relevantly, it includes:
The performance of building work in a manner different from that in which it is customarily performed, (s36(1)(a)).
It is clear from the evidence in this case that ordinarily, trucks turned up at the Deakin site and were unloaded by forklift by employees including Mr Grenfell and Mr Johnston.
Mr Johnston's conduct in preventing Mr Grenfell from unloading the truck and refusing to do so himself was plainly a course of conduct in which work was not performed in the ordinary way.
It was also a ban, limitation or restrictions on the performance of building work (s.31(1)(b).
In my view, the conduct of Mr Grenfell and Mr Johnston was therefore such as to be:
a)building industrial action; and
b)unlawful industrial action, because it was:
i)industrially-motivated;
ii)constitutionally-connected; and
iii)not excluded action.
In my view the matters I have found fall “comfortably within the scope of the allegations pleaded”. (see Hadgkiss v Construction, Forestry, Mining and Energy Union [2008] FCAFC 22 at [74]).
It follows, given the findings that I have made, that the conduct of

Mr Grenfell and Mr Johnston also contravened s.494 of the WR Act. It is common cause that the Wycombe Agreement was still extant at the time, and it is clear that the conduct constituted industrial action within the meaning of s.420 of the WR Act.

Accessorial liability

The conduct of Mr Johnston was, by virtue of s.69 of the BII Act the conduct of the CFMEU; and likewise pursuant to s.826(2) of the WR Act his conduct was the conduct of the CFMEU.
Accordingly, I will declare that Mr Johnston and the CFMEU breached the legislation in the terms I have discussed. The parties are to prepare declarations giving effect to these reasons for judgment. I will list the matter for further hearing as to the question of what, if any, other orders should flow from these findings.

I certify that the preceding eighty-eight (88) paragraphs are a true copy of the reasons for judgment of Burchardt FM

Associate: Ms B Evans

Date: 10 December 2008