Cruse v Construction, Forestry, Mining and Energy Union - [2008] FCA 1267

FEDERAL COURT OF AUSTRALIA
Cruse v Construction, Forestry, Mining & Energy Union [2008] FCA 1267
INDUSTRIAL LAW – certified agreements – coercion of contractor to make a certified agreement – whether union delegate represented to contractor that certified agreement was mandatory to work on unionised construction site – whether false or misleading representation made about contractor’s obligation to join an industrial association
INDUSTRIAL LAW – organising to take action, or threatening to organise or take action, with intent to coerce another person not to engage, allocate particular responsibilities to, or have particular duties or responsibilities designated to, a building contractor – whether union delegates engaged in such conduct – whether negotiations or discussions with management amount to such conduct
WORDS AND PHRASES – meaning of “other action” within meaning of s 170NC of Workplace Relations Act 1996 (Cth)
Workplace Relations Act 1996 (Cth), ss 170NC, 298B, 298SC and 349
Building and Construction Industry Improvement Act 2005 (Cth), s 43(1)
Hadgkiss v Sunland Constructions Pty Ltd (2007) 158 FCR 193, followed.
National Tertiary Education Industry Union v Commonwealth of Australia (2002) 117 FCR 114, followed.
Ponzio v Multiplex Ltd (2005) 145 IR 431; [2005] FCA 1410, followed.
WARREN CRUSE v CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION, ROBERT BANNISTER, BARRY HOFFMAN and SAM FRY
VID 108 OF 2007
MARSHALL J
22 AUGUST 2008
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VID 108 OF 2007

BETWEEN:

WARREN CRUSE
Applicant

AND:

CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION
First Respondent

ROBERT BANNISTER
Second Respondent

BARRY HOFFMAN
Third Respondent

SAM FRY
Fourth Respondent

JUDGE:

MARSHALL J

DATE OF ORDER:

22 AUGUST 2008

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:
1. The proceeding is adjourned to a directions hearing at 9.30 am on 4 September 2008.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VID 108 OF 2007

BETWEEN:

WARREN CRUSE
Applicant

AND:

CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION
First Respondent

ROBERT BANNISTER
Second Respondent

BARRY HOFFMAN
Third Respondent

SAM FRY
Fourth Respondent

JUDGE:

MARSHALL J

DATE:

22 AUGUST 2008

PLACE:

MELBOURNE

REASONS FOR JUDGMENT

Mr Frank Anton is a self-employed builder and handyman who usually undertakes small renovations and maintenance jobs in and around his hometown of Hamilton in Western Victoria. Between May 2005 and late 2006 or early 2007, Mr Anton performed work on a project called the Iluka Murray Basin Development Project. The project included the construction of two plants. The first was a mineral sands separation plant at Hamilton (“the Hamilton site”) and the second was a mine unit and wet concrete plant at nearby Douglas.
This proceeding arose as a consequence of the interaction by Mr Anton with workers on the Hamilton site who were members of the first respondent, Construction, Forestry, Mining and Energy Union (“the CFMEU”). The applicant, Mr Cruse, is a workplace inspector under the Workplace Relations Act 1996 (Cth) (“the WR Act”) and…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2008] FCA 1267
Decision Date: 22 August 2008

CaseChat Overview and Summary

In the case of Cruse v Construction, Forestry, Mining and Energy Union, the court was required to determine whether the respondents, Mr Bannister and Mr Hoffman, had breached the Building and Construction Industry (Security of Payment) Act 2002 (BCII Act) by coercing Roche to not engage the applicant, Mr Anton, as a building contractor or to allocate particular responsibilities to him. The case involved conflicting evidence about the events that transpired at the Hamilton site, including whether the respondents had threatened industrial action if Mr Anton was not removed from the site. The court needed to assess the credibility of the witnesses and the evidence presented to determine if the statutory provisions were breached.

The court examined the evidence and found that there was no clear evidence that Mr Bannister or Mr Hoffman had threatened industrial action or coerced Roche in relation to Mr Anton's employment. The court considered the testimonies of Mr Anton, Mr Armstrong, and Mr Mitchell, and found inconsistencies and improbabilities in some of the accounts. The court concluded that the respondents' actions did not amount to coercion as defined by the BCII Act. The court found that the grouters' dissatisfaction with the allocation of work to Mr Anton did not constitute coercion, and that the management's decision to allocate work to Mr Anton was based on an assessment of possible industrial consequences rather than threatened industrial action.

The court determined that the applicant had not proven, on the balance of probabilities, that the respondents breached the BCII Act. The court found that the respondents had not organised or taken action, or threatened to do so, with the intent to coerce Roche in relation to Mr Anton's employment. The court held that the advancement of a position in negotiations with management did not equate to coercion, especially when there was no evidence of words uttered or action taken to negate Roche's choice. The possibility of industrial action occurring was not the same as a threat that industrial action would occur. Consequently, the court dismissed the proceeding and adjourned the matter to a directions hearing.

The court's final order was that the proceeding be adjourned to a directions hearing at 9.30 am on 4 September 2008. The court found that the applicant had not established the necessary elements to prove a breach of the BCII Act, and therefore, the proceeding was dismissed. The court's decision was based on a thorough analysis of the evidence and a careful consideration of the legal principles applicable to the case.

Orders

Orders of the court

1. The proceeding is adjourned to a directions hearing at 9.30 am on 4 September 2008.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Mr Anton said that he overheard Mr Bannister telling Mr Armstrong whilst in Mr Armstrong’s office that he wanted Mr Anton off the site. Mr Anton said that after Mr Bannister left Mr Armstrong’s office, he, Mr Anton, came across Mr Bannister who told him to leave the site. Mr Anton said he then went off the site. Under cross-examination Mr Anton agreed that he had no specific recollection of leaving the site. Mr Anton said that he continued to work on the non-construction side of the site. I find this aspect of Mr Anton’s evidence to be confused, confusing and improbable. Clearer accounts of the events of mid 2006 at the site are given by other witnesses.(ii) Mr Armstrong’s evidence on the BCII Act issue Mr Armstrong gave evidence that there were CFMEU members employed on the construction side of the Hamilton site who were carpenters and known collectively as “the grouters”. Mr Armstrong gave evidence that in June 2006, Mr Anton was performing work for Roche on a crib hut at the Hamilton site on the construction side. Mr Anton was attaching trimming to join two halves of a portable structure. This appears to have been the type of work he was originally doing in May 2005 on the non-construction side. Mr Armstrong said that, at this time, Mr Bannister and Mr Hoffman came into his office and said that Mr Anton was not a member of the CFMEU. Mr Anton then showed Mr Bannister his membership card and obtained a copy of his enterprise bargaining agreement from his car. Mr Armstrong said that Mr Bannister asserted that Mr Anton should not be on site and then left Mr Armstrong’s office. Mr Armstrong said that shortly after, Mr Bannister informed him that after checking with “a higher level official”, Mr Bannister had told Mr Anton that “we can’t stop you working on the site”. Mr Armstrong said that from 23 June 2006 to 3 July 2006 he was on leave and heard no more about any concerns Mr Bannister had with Mr Anton until 4 July 2006. Mr Armstrong gave evidence of a meeting on 4 July 2006 between himself and Mr Lee Mitchell (Construction Manager) representing Roche and ten grouters, including Mr Bannister and Mr Hoffman. The meeting occurred in the grouters’ crib hut and was arranged to discuss concerns the grouters had with work being given to Mr Anton which they asserted had been promised to them by Mr Bennett, an earlier supervisor on the Iluka project. Mr Armstrong gave evidence that the grouters had an agreement with Roche to do all the grouting work on the site, but they wanted other work which Roche did not give them. He gave evidence that the grouters, who included Mr Hoffman and Mr Bannister, were told by Mr Bennett that they could perform part of the decommissioning work on the project if they were available when the ‘pull-down’ was required. Mr Armstrong gave evidence that the grouters had told him that they had ordered specific materials for a job that they were to complete but that when the materials arrived Mr Anton was asked to finish the job. He said he gave the disputed work, which the grouters claimed as their work, to Mr Anton but it had not been promised to the grouters. Mr Armstrong said it was a job for which Mr Anton had “all the tools … all the equipment … everything to do the job in five minutes”.

Decision

Reasons for decision

MARSHALL J

Mr Mitchell gave affidavit evidence that Mr Bannister approached him at 8.15 am on 4 July 2006 and said that “the boys were still in the sheds and he wanted me to come and talk to them.” At the subsequent meeting, two of the grouters told him about work they had measured up and ordered materials for which was then given to Mr Anton by Mr Armstrong. Mr Mitchell said that Mr Armstrong told him there was a half day’s work involved in the job. Mr Mitchell told the grouters they could do the work and “suggested to [Mr Armstrong] that he get Frank [Anton] to finish up the other work”. Mr Mitchell did so because he believed that the grouters would not otherwise leave the crib hut. He did not assert in his affidavit that Mr Hoffman or Mr Bannister made a demand that Mr Anton leave the site.(iv) Conclusions on BCII Act issue I am not satisfied that Mr Cruse has proven, on the balance of probabilities, that Mr Hoffman or Mr Bannister organised or took action or threatened to organise or take action with intent to coerce Roche:·not to engage Mr Anton as a building contractor;·not to allocate particular responsibilities to Mr Anton; or·to designate Mr Anton as not having particular duties or responsibilities. The allegations that action was taken by Mr Hoffman and Mr Bannister to coerce Roche not to engage Mr Anton was only faintly pressed. Mr Anton was already engaged and did not cease to be engaged as a building contractor on 4 July 2006 by Roche. Section 43(1)(b) of the BCII Act was not breached in respect of Mr Anton. There is no persuasive evidence that Mr Hoffman or Mr Bannister said the grouters would stay in their crib hut until Mr Anton left the site. Mr Armstrong, when pressed, could not specifically recall either man saying those words. The reality appears to be that the grouters believed they had been promised certain work which they had prepared for by measuring the job and ordering materials. They objected to Mr Anton doing that work in those circumstances. They asked for management to address the issue. The issue was addressed after the meeting with management which occurred in the grouter’s crib hut or shed. I am not satisfied, on the balance of probabilities, that Mr Hoffman or Mr Bannister said to Mr Armstrong or Mr Mitchell that the grouters would “shed up” unless Mr Anton was removed from the site. Consequently, I am not satisfied that s 43(1)(b) or (c) of the BCII Act was breached by Mr Bannister or Mr Hoffman. Neither of them organised or took action, or threatened to organise or take action, with intent to coerce Roche not to allocate particular responsibilities or not have Mr Anton undertake particular duties or responsibilities. The advancement of a position in negotiations with management does not equate to coercion. This is especially so where the Court is not satisfied that any words were uttered or action taken by Mr Bannister or Mr Hoffman to negate Roche’s choice. Mr Armstrong or Mr Mitchell were free to allocate the work to Mr Anton or the grouters. Their perception of what might happen if they granted the work to Mr Anton does not mean that the choice they made was affected by coercion. It was a choice they made on an assessment of possible industrial consequences as distinct from threatened industrial consequences. The possibility of industrial action occurring is not the same as a threat that industrial action would occur.

Ratio Decidendi

Legal Principle Established

Established by: MARSHALL J

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 108 OF 2007

JUDGE:	MARSHALL J
DATE OF ORDER:	22 AUGUST 2008
WHERE MADE:	MELBOURNE

JUDGE:	MARSHALL J
DATE:	22 AUGUST 2008
PLACE:	MELBOURNE