Dorber v Construction, Forestry, Mining and Energy Union
[2005] FCA 1565
•4 NOVEMBER 2005
FEDERAL COURT OF AUSTRALIA
Dorber v Construction, Forestry, Mining & Energy Union [2005] FCA 1565
INDUSTRIAL LAW – industrial action – whether threat of action or action was “with intent to coerce” a subcontractor to enter into an enterprise agreement – whether threat of action or action was to ensure payment by subcontractor of workers’ income protection, superannuation and redundancy entitlements
Workplace Relations Act 1996 (Cth) ss 84, 170NC, 170NF
Industrial Relations Act 1999 (Qld)Australian Building Construction Employees and Builders’ Labourers’ Federation and Another v Employment Advocate (2001) 114 FCR 22 cited
Hanley v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (2000) 182 ALR 563 citedBRIAN DORBER v CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION and OTHERS
No QUD 28 of 2004
SPENDER J
BRISBANE
4 NOVEMBER 2005
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
QUD 28 OF 2004
BETWEEN:
BRIAN DORBER
APPLICANTAND:
CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION
FIRST RESPONDENTPETER CLOSE
SECOND RESPONDENTMICHAEL RAVBAR
THIRD RESPONDENTJUDGE:
SPENDER J
DATE OF ORDER:
4 NOVEMBER 2005
WHERE MADE:
BRISBANE
THE COURT ORDERS THAT:
1.The application 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
QUEENSLAND DISTRICT REGISTRY
QUD 28 OF 2004
BETWEEN:
BRIAN DORBER
APPLICANTAND:
CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION
FIRST RESPONDENTPETER CLOSE
SECOND RESPONDENTMICHAEL RAVBAR
THIRD RESPONDENT
JUDGE:
SPENDER J
DATE:
4 NOVEMBER 2005
PLACE:
BRISBANE
REASONS FOR JUDGMENT
This is an application seeking:
‘1.A determination that the First, Second and Third Respondents have acted in contravention of s.170NC (1) of the Workplace Relations Act 1996 (Cth) (WR Act).
2.An order under s.170NF of the WR Act imposing a penalty against the First, Second and Third Respondents for contravention of s.170NC of the WR Act.
…’
Mr Dorber, at all material times, was an inspector appointed under s 84 of the Workplace Relations Act 1996 (Cth) (“the Act”), and thus a person empowered by s 170NF(7)(e) of the Act to make the present application.
The Construction, Forestry, Mining and Energy Union (“the CFMEU”), at all material times, was an organisation of employees registered and incorporated under the Act. The second and third respondents, at all material times, were officers of and duly authorised agents of the CFMEU, acting in that capacity. It was therefore submitted by the applicant, (and no submission to the contrary was made by any of the respondents), that the CFMEU was vicariously liable for any contravening actions of the first or second respondents in these proceedings.
Section 170NC of the Act provides:
‘(1) A person must not:
(a)take or threaten to take any industrial action or other action; or
(b)refrain or threaten to refrain from taking any action;
with intent to coerce another person to agree, or not to agree, to:
(c)making, varying or terminating, or extending the nominal expiry date of, an agreement under Division 2 or 3; or
(d)approving any of the things mentioned in paragraph (c).
(2)Subsection (1) does not apply to action, or industrial action, that is protected action (within the meaning of Division 8).
(3)An employer must not coerce, or attempt to coerce, an employee of the employer:
(a)not to make a request as mentioned in subsection 170LK(4) in relation to an agreement that the employer proposes to make; or
(b)to withdraw such a request.’
These proceedings arise out of events that happened at a construction site in the Central Business District of Brisbane called Macarthur Chambers in late 2002. The evidence establishes that workers on that site were concerned that other workers on that site had an entitlement to be paid in respect of income protection, superannuation and redundancy, and were not being paid those entitlements. A number of subcontractors in the building industry connected with the project at Macarthur Chambers, for which FKP Constructions Pty Ltd (“FKP”) was the contractor of the building works, were believed to be in breach of their contractual obligations with the head contractor, concerning payments to be made by the subcontractor to its employees on the site. FKP had a pro forma subcontract agreement with employer subcontractors working on the site at Macarthur Chambers which provided that ‘… the Subcontractor is to carry out and complete the Works in exchange for the Subcontract Sum and in accordance with the terms and conditions of this Agreement.’
Clause 12 of the Subcontract Agreement provided:
‘12. ASSIGNMENT & SUBCONTRACTING
(a)The Subcontractor must not:
(i)assign the Agreement or any right, benefit or interest under the Agreement; or
(ii)subcontract any part of the Works;
without the Contractor’s written approval.
(b)Approval to assign the Agreement or subcontract the Works does not relieve the Subcontractor from any liability or obligation under the Agreement.
(c)The Subcontractor must ensure that any secondary subcontractor engaged by the Subcontractor effects and maintains the following insurance cover, in respect of its workers:
(i)Workcover or any similar insurance required by law; or
(ii)Workplace Personal Injuries Insurance (And Provide evidence of 12(c)(i) or (ii).’
Clause 26 is an important clause of the Subcontract Agreement, that relevantly in the present matter was made between FKP and Mar Gra Pty Limited (‘Mar Gra’). It relevantly provided:
‘26. AWARDS, WAGES & CONDITIONS
(a)The Subcontractor must comply with the terms and conditions of the industry award together with the current Statement of Intent between the Contractor and the relevant unions, including but not limited to the making of contributions to the relevant superannuation, redundancy or other statutory fund required to be paid as described in the above statement of intent, relating to the wages and conditions of its workers.’
A complaint at a meeting of workers held on the Macarthur Chambers site on 21 November 2002 expressed the view that a number of subcontractors on the site were in breach of their obligations pursuant to clause 26(a) of the Subcontract Agreement. Those subcontractors included Mar Gra, QPool and The Deen Brothers. The present proceedings are concerned with the involvement of Mar Gra.
On or about 13 May 2002, Mar Gra had entered into a written contract with FKP to manufacture and install certain marble and tile products at the Macarthur Chambers construction site. About 6 November 2002 the CFMEU caused Mar Gra to be served with a Notice of Initiation of Bargaining Period in accordance with the Act, which notice initiated bargaining under the Act for the purpose of securing a certified agreement under the Act between Mar Gra and the CFMEU. At all material times, a number of the employees engaged by Mar Gra, and in particular those engaged in the manufacture and installation of marble and tile products on the Macarthur Chambers site, were not members of the CFMEU. At all material times, the employees of Mar Gra were engaged in accordance with an award of the Queensland Industrial Relations Commission which was binding upon Mar Gra and those employees. At no time was Mar Gra a party to an agreement certified in accordance with the Act or the Industrial Relations Act 1999 (Qld).
The applicant pleads that at a stop-work meeting on 21 November 2002 attended by workers who were not employed by Mar Gra, Peter Close (the second respondent) addressed workers present at that meeting and said words to the effect:
‘11. …
(a)There were two companies on the site, one of which was identified as Mar Gra, that had not entered into a Certified Agreement with the First Respondent; and
(b)Strike action would be taken on 28 November 2002 if the three companies, including Mar Gra, did not sign a Certified Agreement with the First Respondent by that date.’
The statement of claim by Mr Dorber then alleges:
‘12.On 21 November 2002, after the conclusion of the stop-work meeting, the Second Respondent met with Mr John Murdoch (Murdoch), who was employed by FKP as Site Manager of the site. The Second Respondent informed Murdoch that three companies working on the site, one of which the Second Respondent identified as Mar Gra, were not paying correct wages to employees and had not signed a Certified Agreement with the First Respondent. The Second Respondent informed Murdoch that these issues were to be resolved by 28 November 2002, or the Second Respondent would recommend to the workers on the site that they withdraw their labour.’
Mr Dorber further alleges:
‘13.Murdoch advised the Second Respondent that he could not force any person to sign a Certified Agreement. The Second Respondent told Mr Murdoch that there would be a further meeting on 28 November 2002, and that the Second Respondent would close the site if the issue was not resolved.’
The allegations set out above constitute the alleged first contravention of s 170NC of the Act.
The second contravention which Mr Dorber alleges relates to a telephone conversation between Michael Ravbar, who was the State Secretary of the CFMEU, and Mr Murdoch. The nature of this second contravention is set out in pars 14 and 15 of the statement of claim:
‘14.On 25 November 2002, the Third Respondent telephoned Murdoch. The Third Respondent asked Murdoch whether Mar Gra had signed a Certified Agreement with the First Respondent.
15.Murdoch replied to the Third Respondent with words to the effect that he (Murdoch) could not force Mar Gra to sign a Certified Agreement. The Third Respondent told Murdoch that the site would be closed down on 28 November 2002 if Mar Gra did not sign a Certified Agreement with the First Respondent.’
The statement of claim asserts, and it is admitted by the respondents, that:
‘16.On 25 November 2002, the First Respondent served a further Notice of Initiation of Bargaining Period and a Notice of the Giving of Authorisation to Engage in Industrial Action upon Mar Gra, in accordance with the requirements of the WR Act.’
The third alleged contravention of s 170NC of the Act is set out in pars 17 to 21 of the statement of claim:
‘17.At approximately 6.45 am on 28 November 2002, the Second Respondent approached Murdoch and enquired as to whether Mar Gra had signed a Certified Agreement with the First Respondent. Murdoch replied in words to the effect that he did not believe that Mar Gra would sign such an agreement.
18.Shortly thereafter, on 28 November 2002, the Second Respondent attended a meeting of workers engaged on the site, which meeting did not include any employees of Mar Gra. At approximately 7.40 am on 28 November 2002, the Second Respondent informed Murdoch that the workers had voted unanimously to withdraw their labour indefinitely. The Second Respondent then said words to the effect that the workers did not want to work with subcontractors who did not have a Certified Agreement with the First Respondent. At that time, the Second Respondent identified Mar Gra as one of the subcontractors who did not have a Certified Agreement with the First Respondent and in respect of whom the withdrawal of labour was then occurring.
19.At the same time and date, the Second Respondent informed Murdoch that a further meeting would be held at 7 am on 29 November 2002. The Second Respondent said words to Murdoch to the effect that Murdoch was not to permit Mar Gra or any other person to work on the site until that time. The Second Respondent informed Murdoch that he would cause all other FKP building sites to be closed if Murdoch or FKP did not comply with the demand to prevent employees of Mar Gra and all other workers from working on the site.
20.By reason of the closure of the site on 28 November 2002, employees of Mar Gra were unable to work as directed by Mar Gra on the site.
21.The workers on the site (other than Mar Gra employees) remained on strike during 29 November 2002. Mar Gra employees were able to gain access to the site and perform work on this day.’
It will be seen from the allegations set out above that the three contraventions alleged by the applicant against the respondents are based on the premise that what was said by Mr Close and Mr Ravbar to Mr Murdoch was said with the intent to coerce Mar Gra into making a certified agreement under the Act with the CFMEU, and constituted threats to take industrial action with that intent.
The respondents deny that the second and third respondents made the threats which the applicant alleges, and further deny that any statements made by them were made with the intent which the applicant asserts.
The real question is whether the dealings between Mr Close and Mr Ravbar on the one hand, and Mr Murdoch of FKP on the other, were directed to securing the agreement of Mar Gra to the making of a certified agreement, or was done with an intention that included that object or, as the respondents contend, were directed to securing the payment of entitlements to workers on the Macarthur Chambers site to which they were contractually entitled but which the subcontractor had failed to pay, and were directed solely to that object.
The applicant contends that the evidence establishes that both Mr Close and Mr Ravbar, on their own behalf and acting as agent or officer of the CFMEU, threatened to take industrial action or other action with intent to coerce Mar Gra to agree to making an agreement under Division 2 or Division 3 of the Act. It was further submitted on behalf of the applicant that both Mr Close and Mr Ravbar threatened Mr John Murdoch, the site manager of FKP at Macarthur Chambers, that they proposed to take action which was industrial action and/or other action, and which if undertaken would have caused FKP serious economic harm. Those threats, it was suggested, were made for reasons which included the substantial operative purpose of compelling FKP to take action against Mar Gra in the context of the relationship between FKP as contractor and Mar Gra as subcontractor, in order to coerce Mar Gra to make a certified agreement.
For the reasons which follow, I am in no doubt, on the evidence, that the neither Mr Close nor Mr Ravbar, (and it follows the CFMEU), were seeking that Mar Gra would make a certified agreement, and had no intention to coerce Mar Gra into making such an agreement..
That crucial element of each of the contraventions alleged has not been established. Indeed, I am satisfied that it was never the intention of any of the respondents in their dealings with Mr Murdoch that the making of a certified agreement was even a hope, let alone an object, of their dealings with Mr Murdoch.
I reach this conclusion, notwithstanding that the evidence establishes that the CFMEU formally invoked the processes of the Act which are directed towards the making of a certified agreement with Mar Gra, on 6 November 2002 and again on 25 November 2002.
I accept that s 170NC(1)(a) does not require that the requisite industrial action or other action be directly imposed upon the person who it is intended to coerce. In my opinion, all the section requires is that the industrial action or threat of action is taken with the requisite coercive intent. My views in these respects are supported by the conclusions in Australian Building Construction Employees and Builders’ Labourers’ Federation and Another v Employment Advocate (2001) 114 FCR 22, a judgment of the Full Court of the Federal Court (Lee, Finn and Merkel JJ), particularly at pars 36-38. Those proceedings were, of course, under Part XA of the Act.
If there were threats made to Mr Murdoch and those threats were ‘to take any industrial action or other action’, and they were made with intent to coerce Mar Gra to agree to making a certified agreement, then the necessary elements of the offence created by s 170NC in my opinion would be satisfied. It would be sufficient if the intent to coerce Mar Gra into entering into a certified agreement was merely one of the objects of Mr Close or Mr Ravbar: Hanley v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (2000) 182 ALR 563, particularly at [42]-[45].
I am not satisfied that there was any intention on the part of either Mr Close or Mr Ravbar to coerce Mar Gra to make a certified agreement, and for that reason each of the contraventions alleged is not made out and the application must be dismissed.
The events with which these proceedings are concerned occurred on the Macarthur Chambers site on and from 21 November 2002.
In May 2002, Mar Gra entered into a subcontract with FKP to perform the ‘design and construct’ of granite benchtops and splashbacks for the project at Macarthur Chambers for a contract sum of $220,000, not including GST, on the terms and conditions of the subcontract entered into in May 2002.
I have already set out the provisions of clause 26 of the subcontract between FKP and Mar Gra.
Contrary to its contractual obligations pursuant to that clause, it appears that Mar Gra was not paying, on behalf of its workers, the relevant superannuation, redundancy and other statutory requirements as required by the Statement of Intent between the contractor and the CFMEU. The evidence, in my opinion, establishes that the workers on the Macarthur Chambers site were extremely concerned at this failure by Mar Gra and other companies on the site.
It is a sad fact that the Australian industrial relations scene in recent years has been littered with the corpses of companies that have gone to the wall, leaving workers with entitlements for millions of dollars unpaid and worthless, the workers being left without remedy in the face of the dishonour by the employer of its obligations to them. There is, in my opinion, much to be said for the view that just as directors of companies should be liable, as criminal offenders, if they permit a company to trade whilst insolvent, it should also be a crime for directors to permit a company to trade in circumstances where the accrued entitlements of workers are rendered worthless.
In any event, it seems plain that the workers on the Macarthur Chambers site were, on 21 November 2002, very concerned at what was thought to be the failure by companies, including Mar Gra, to honour the contractual obligations in the subcontract agreements concerning the Statement of Intent between FKP and the CFMEU about income protection, superannuation and redundancy.
I am satisfied, particularly from the evidence of the employees of Mar Gra called by the applicant in his case, namely William Robert Cook and Mark Andrew Harvey, that the complaint expressed at the workers’ on-site meeting on 21 November 2002 was that a number of companies, which included Mar Gra, M and N Waterproofing and BMC (which companies did not have EBAs) were not paying the correct entitlements on site. The evidence establishes that the inclination of the meeting was to “down tools” on that day, but that Peter Close, the second respondent, was able to persuade the men to go back to work that day, with a view to a further meeting seven days after that, and with the intention that the workers could ‘see what could be sorted out in the meantime.’
The evidence by Ms Maria Angela Gagliardo, the assistant manager of Mar Gra, was that, on the Macarthur Chambers site, until 27 November 2002, Mar Gra did not make any Construction Industry Income Protection scheme payments at all. Ms Gagliardo said: ‘That’s because we are not obliged to, unless you have an EBA.’ She also agreed that Mar Gra ‘does not sign enterprise bargaining agreements’, that ‘we haven’t signed for a very long time’, and to the suggestion that ‘That’s your current position?’ she said ‘And it has been for approximately ten years.’
Ms Gagliardo agrees that subsequent to 27 November 2002, Mar Gra paid the Construction Industry Income Protection scheme payment, and Mar Gra made the back payment of those payments as well. The evidence of Ms Gagliardo was aggressively anti-CFMEU. The complaint from the CFMEU conveyed to Mr Murdoch by Mr Close was that some subcontractors (including Mar Gra) were not paying the correct payments in respect of BERT (Building Employees Redundancy Trust), BUSS (Building Union Superannuation Scheme) and CIPQ (Construction Income Protection Queensland) for their employees. Ms Gagliardo asserted:
‘… my employees were being paid the correct amount under the Queensland Wage Boards, but incorrect according to the union EBA, which we were not obliged to pay, as we don’t have a signed EBA.’
Ms Gagliardo, however, acknowledged that there was a site agreement in relation to the Macarthur Chambers project. Mar Gra was, in accordance with that agreement, contractually obliged to pay the BUSS, BERT and CIPQ payments in respect of its employees on site. Ultimately, Mar Gra paid the amounts which the CFMEU asserted were required to be paid by Mar Gra on behalf of its employees, in accordance with the statement of intent between FKP and the CFMEU.
It is plain from the evidence, including that of Mr Harvey, that the meeting of workers on 21 November 2002, concerned the complaints about the lack of payment of entitlements to some men on the site. The meeting was, on the evidence, a very heated meeting, and the workers at the meeting were upset to the point that the men were simply going to walk off the site then and there, according to Mr Harvey. He agreed that Peter Close settled the men down, saying: ‘Hold it. … Don’t do that. Let’s look at it. Let’s go into a dispute resolution period of seven days’, and that Mr Close was able to persuade the men to stay on site that day and continue working. Mr Harvey agreed that there was a resolution from the meeting to the effect to try to get the entitlements up to date that were owed, and to try to get companies which did not have EBAs to sign EBAs.
The application by the applicant depends crucially on the evidence of Mr John Murdoch who, in 2002, was employed by FKP, and was the site manager for the Macarthur Chambers project. Mr Murdoch gave evidence that there was a meeting on site at lunch time on 21 November 2002. After the meeting, Mr Close and Mr Beckavak and two union delegates for both the BLF and the CFMEU came to his office. The two union delegates were Mr Adrian Connelly and Mr Luke Knapp. Mr Murdoch said:
‘They came to my office and advised me that there was some subcontractors on the site that weren’t paying BUSS, BERT and CIPQs and had not signed an EBA.’
He said that Mr Close had told him that ‘there was going to be a follow-up meeting the following Thursday’ and ‘that they would need to have all their BUSS memberships up to date and they would have to sign EBAs.’
He was asked:
‘Was there any consequence mentioned if that didn’t occur?---Only that they would recommend to the site that they’d sit in the shed at that time – they would sit in the shed until an EBA was signed and then if it wasn’t all up to date they would then recommend to the workers to withdraw their labour.’
Mr Murdoch said that in response he told Mr Close:
‘I responded and said that I would chase the subcontractors up and ask them to furnish proof of their BUSS and BERT and CIPQs. However, I couldn’t do anything about an EBA because it wasn’t legal for me to do anything like that. I couldn’t tell people they had to have an EBA. FKP had an EBA and as far as I was concerned, they were working – all subcontractors could work under that EBA.
All right. And did Mr Bekavak say anything further when you told him that?
---No.’Mr Murdoch said that he then had conversations with, inter alia, Mar Gra, and requested documentation in relation to BUSS, BERT and CIPQ. There is no suggestion in his evidence that he asked Mar Gra to sign an EBA. This is an important aspect of his evidence. He said that, probably on the Wednesday before the meeting which was to be on the Thursday morning, he received receipts and statements from BUSS, BERT and CIPQ:
‘… I then gave them to my administrator and he checked them all off. He advised me that they were all correct and up to date and also with the other subcontractors, they did the same, and I actually kept them there on site and the next morning when Mr Close and Mr Bekavak arrived on site, I actually gave them to them.’
In evidence concerning his dealings with Mr Ravbar (which constitutes the second alleged contravention by the CFMEU of s 170NC of the Act) Mr Murdoch simply said that he received a phone call from Mr Ravbar during the week between the first meeting (on 21 November 2002) and the meeting on 28 November 2002. Mr Murdoch said:
‘I did, and he asked me if I had had any luck in getting Mar Gra to sign an EBA. I told him no and I told him why I couldn’t get them to sign.
What was the reason you gave him?---The reason I gave him is that I can’t ask anybody to sign an EBA. It’s not in my role.
And?---He then advised me straightaway that he would be closing our site down on the Thursday if it wasn’t signed.
…
… what response did you give …?---I can’t recall. I don’t believe that I would have given him much of a response at all.’According to Mr Murdoch, on 28 November 2002, after he had given either Mr Close or Mr Bekavak the documentation they had asked for, they left for the meeting and at about 7.40 am, Mr Close, Mr Bekavak, Mr Luke Knapp and Mr Adrian Connelly came back and Mr Close informed him that:
‘… the men had withdrawn their labour because they didn’t want to work alongside other people that weren’t being paid – the men didn’t want to work alongside other people on site that weren’t getting paid the correct wages due to not signing an EBA.’
The contention by Mr Murdoch is that he produced documentation establishing that the payments of BERT, BUSS and CIPQ had in fact been made, and the subcontractors were up to date. He denied that he told to the union representative that:
‘I raised the issues with the subbies, and they haven’t produced the receipts. All I can do is raise these issues with the subcontractors. I will speak to them some more.’
Mr Murdoch also said that Mr Close had said, ‘… if they were caught working on site while the others were off, that all FKP sites would be closed.’
As to what was the true matter of complaint, Mr Murdoch was asked in-chief:
‘Was the reason given to you as to why Mar Gra was not permitted to work on the site?---Because they weren’t paying the correct money, according to the unions.
All right. Any other reason?---And they hadn’t signed an EBA.’
Mr Murdoch, at the time of giving evidence, was no longer employed by FKP, and it was submitted on behalf of the applicant that he had no axe to grind concerning his recollection of events some two and a half years earlier. However, his oral evidence differs in significant respects from the case pleaded by the applicant, and also differs from his conversation with members of the Task Force who tape-recorded (unknown to Mr Murdoch and much to his disgust) a conversation in December 2002 concerning these events.
Mr Murdoch agreed that he had a conversation with officers of the Task Force on 4 December 2002. The effect of that conversation, Mr Murdoch agreed, was that after the lunch-time meeting on 21 November 2002, a number of persons came and told him that they had a problem with a few companies, one of whom was Mar Gra. The others were BMC, the aluminium company, and M and N Waterproofing. They were not paying correct wages and they had not signed an EBA. The question put to Mr Murdoch then by the Task Force officers was ‘They hadn’t signed an EBA and what did they say about that?’ Answer: ‘They said that they wanted it sorted out by the following Thursday … or they will be recommending back to the blokes that it hadn’t been fixed. There could be a strike.’
Mr Murdoch was asked in cross-examination:
‘Mr Murdoch, if you did say that, you’re indicating no more than you were told by these fellows, that they were reporting back to the men that there could be industrial problems. Is that right?---There would have been something like that said. I can’t remember the exact words I said to the taskforce.’
And then later a question by the Task Force and the answer given was repeated to Mr Murdoch:
‘ “When you say they wanted it sorted out,” you said, “They wanted us to make sure that everyone was getting paid the correct money plus BERT and CIPQs and the EBA sorted out.”’
And later:
‘Question,“What do you mean by the EBA sorted out?” Answer, “Well, they wanted them to sign up an EBA with the unions and my statement at the time was something like, ‘I can’t make anybody sign an EBA. It’s not – they’ve contracted to work to our EBA. We’ve signed an EBA’, and told them they sort it out” – words to that effect?---Words to that effect.’
I accept that Mr Murdoch’s recollection of the conversation with the Task Force, as admitted by him in evidence, accords more closely to what in fact was said in the exchange between Mr Close and Mr Murdoch on 21 November 2002.
In particular, I am quite satisfied that nothing was said by Mr Close to threaten Mr Murdoch with industrial action or any other action on 21 November 2002 in order that FKP put pressure on Mar Gra to enter into a certified agreement. The unchallenged evidence is that Mr Close successfully endeavoured to keep the men working on site. I am satisfied he did that so that the matters of the non-payment of the entitlements Mar Gra was contractually obliged to pay its workers could be ‘sorted out’. Mr Murdoch accepted that he not only said that he could not make a subcontractor sign an EBA, but that he had no intention of trying to make a subcontractor sign an EBA. He said: ‘I can’t make a subcontractor do that. I had no intention of trying to make them.’ I am satisfied that Mr Murdoch communicated that to the CFMEU members on 21 November 2002, that Mr Close knew that that was the case, and that Mr Close said nothing to Mr Murdoch directed to securing the assistance or co-operation of, or pressure from, Mr Murdoch to obtain the entering into a certified agreement by Mar Gra. Mr Close knew there was no chance of Mar Gra entering into a certified agreement, and nothing he said or did was intended or calculated to bring about that result. What he did intend to achieve in his conversations with Mr Murdoch, was the assistance and co-operation of Mr Murdoch in getting Mar Gra to honour its contractual obligations in respect of superannuation, redundancy and income protection for its employees.
The undisputed fact is that after the workers stopped work on Thursday 28 November 2002, they did not return to work until Tuesday of the following week, 3 December 2002. By that time, no EBA had been signed by Mar Gra, but verification of payment for BUSS, BERT and CIPQ for Mar Gra’s employees, including back payments, had occurred.
I do not accept that on 28 November 2002, prior to the meeting of workers on the site, Mr Murdoch handed to Mr Close documentation establishing that Mar Gra had made good the payments in respect of BUSS, BERT and CIPQ. That account is quite inconsistent with Mr Murdoch’s agreement that after the meeting Mr Murdoch was told that the workers had withdrawn their labour ‘for not paying the correct moneys’.
There is a significant conflict in the circumstances in which a telephone call between Mr Murdoch and Mr Ravbar occurred. Mr Murdoch says that he received a phone call, unprompted, from Mr Ravbar whom he had never met and to whom he had never spoken. Mr Murdoch’s evidence was to the effect that Mr Ravbar phoned him without any prior attempt to communicate with him, spoke to him only about Mar Gra and not about the other companies who also were of concern regarding non-payment of entitlements for BUSS, BERT and CIPQ, and that in that short conversation asked him ‘if Mar Gra was going to sign - had signed an EBA’, and then said ‘if it’s not done by next Thursday we will be taking the site out.’ Mr Ravbar, on the other hand, said he phoned Mr Murdoch in response to messages that Mr Murdoch had left asking Mr Ravbar to phone him. He denied making the statements which Mr Murdoch alleges he made.
Concerning this conflict, I prefer the evidence of Mr Ravbar to that of Mr Murdoch. I acknowledge that Mr Murdoch no longer has an interest in any of the parties relevant to the present disputation, but I am satisfied that the account by Mr Ravbar of the circumstances in which the telephone conversation between Mr Ravbar and Mr Murdoch occurred, and what was said in that conversation, is the preferable account.
Mr Ravbar agreed with Mr Herbert of counsel for Mr Dorber that he agreed with Mr Murdoch when Mr Murdoch said he could not force anybody to sign an EBA. I accept Mr Ravbar’s denial that he did not say ‘You have to get them to sign an EBA’. Mr Ravbar said that he was always cautious in dealing with Mar Gra because:
‘… they gave evidence in the Royal Commission against this union, made a number of accusations etcetera which we couldn’t – didn’t have the opportunity to actually be able to defend at all.’
He said:
‘Straight after the conversation, because I’d come to the view that it sounded like entrapment to me, was that I filed the notice of initiation of the bargaining with Mar Gra because I had this concern that the way that – after my discussion with Mr Murdoch, that he wasn’t going to fix the main reason for the dispute and I could see this dispute going a bit further. And I didn’t want to have the situation about the parties focusing on Mar Gra because to me that wasn’t the reason why the workers had the mass meeting in the first place, withdrew their labour in the second place. So it was a precautionary type thing but because I’m very sensitive about Mar Gra in general, was I thought that was a safe route to do. So I filed a notice to initiate the bargaining period under the Workplace Relations Act.
This is after the conversation with Mr Murdoch?---Straight after, yes.’
I do not accept that Mr Ravbar said what Mr Murdoch alleges he said in the sole conversation he had with Mr Ravbar. I am satisfied that there was no threat of industrial action made by Mr Ravbar in that telephone conversation, and Mr Ravbar had no intent to coerce Mar Gra to enter into an EBA. There was never any realistic prospect or hope that such an event might occur with Mar Gra, given its long seated, implacable opposition to EBAs, a circumstance well known to both the CFMEU and to Mar Gra. There was never any intention to coerce Mar Gra into signing an EBA. The sole object of the communications between Mr Close, Mr Ravbar and Mr Murdoch was to ensure that Mar Gra paid to its workers the entitlements which it was contractually obliged to pay as a consequence of its subcontract with FKP.
That conclusion, in my opinion, is in accord with the statements made before the Queensland Industrial Relations Commission before Mr J.M. Thompson, Commissioner, on 28 November 2002, as well as with the history of the withdrawal of labour from the site on 28 November 2002, and the resumption of work at the site on the following Tuesday, 3 December 2002.
First, the representative of FKP told Commissioner Thompson:
‘FKP have indicated recently to the union that Mar-Grar is current in relation to the BUS scheme, BIRT scheme and also the SITKA scheme. My understanding is that that information has been provided to the union this week. As the Commission would be aware, FKP cannot legally or contractually compel Mar-Grar to have an enterprise bargaining agreement. That’s solely the province of the union to negotiate agreement if possible.’ (Emphasis added)
The representative on behalf of the CFMEU said:
‘… There’s no refusal on site by the workers to work alongside-Mar-Grar. The dispute is against – with Forrester FKP in their not honouring their site agreement, which is to ensure that there are minimum rates of pay conditions on that site. And as soon as we get a commitment by FKP that those minimum wages and conditions will be honoured as per their site agreement, that will be the end of the dispute.’
Commissioner Thompson is recorded as saying:
‘… each of the parties have been prepared to look at this matter in a way that’s likely [to] bring some resolution to the dispute that they have at the moment …’
Later, the Commissioner said:
‘In respect of the unions, they have indicated that they have had a meeting on that site about a week ago at which a number of issues were raised by the members on site in relation to not just Mar-Grar but three other companies, those being QPool, The Deen Brothers and Brisbane Mirrors, and the information that was given to the union offiials at the particular meeting of which I’ve referred to was that in a number of areas the payments being made to employees of those four companies has been deficient in terms of the agreement which I’ve referred to earlier and that each of the parties here today have signed.
The unions have said that they provide FKP with seven days’ notice that there were underpayments occurring and that the reason that the dispute went to the stage where people withdrew their labour today was that there’d been no satisfactory outcome in relation to the matters that have been raised by the union.’
The Commissioner continued:
‘Now, Mr Hastings has said to me that in some respects he has sighted documentation and evidence that would indicate that some of the payments that are believed to have not been made or been made that are less than what the entitlements are have in effect been made.’
It should be noted that there is no statement on behalf of FKP that the documentation had been delivered to the union prior to the meeting of the workers on the Macarthur Chambers site on the morning of 28 November 2002, as Mr Murdoch says had occurred.
Commissioner Thompson made the following recommendation:
‘The recommendation is that the unions go to their meeting tomorrow, the 29th of November, and seek to have the workers that are currently on strike return to work and they return to work on the following basis: that on Tuesday of next week somewhere around about midday, if possible, that there be a meeting on site involving FKP, the unions that are present and the subcontractors that I have mentioned earlier with the exception of The Deen Brothers who, as I understand it, have no further role on that site, and that those subcontractors the recommendation of the Commission is that they provide at that meeting details relating to the payments of wages and other benefits that the employees of those companies are entitled, as per the agreement, for the inspection by both the union and FKP to determine whether or not there are moneys outstanding, wages or other conditions that haven’t been met and, if that’s the case, then those moneys ought to be paid as a matter of urgency within seven days to the persons that have not been the recipients of that payment.
On the other hand, the inspection might well show that the payments have been made in accordance with the agreement and whichever way it goes, that should bring about an end to disputation.’
The statements recorded before the Queensland Industrial Relations Commission support the version of events given by Mr Close as to what occurred prior to the meeting on 28 November 2002, and are quite inconsistent with the contention by Mr Murdoch that prior to the meeting of workers on that day, he had supplied documentation evidencing the payments by Mar Gra of its contractual obligations in respect of BUSS, BERT and CIPQ.
My conclusion, in preferring the version of Mr Close to that of Mr Murdoch, is reinforced by the fact that the applicant did not call Mr Steptoe, a person present at the meeting, to depose to what occurred concerning the production of documents. The onus lies on the applicant to establish a contravention of the Act. No acceptable explanation for the absence of Mr Steptoe from the witness box concerning evidence about what occurred at that meeting has been proffered by the applicant.
On the evidence before me, I am not satisfied that the applicant has made out any of the three contraventions of s 170NC of the Act. The application is dismissed.
I certify that the preceding sixty-two (62) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Spender . Associate:
Dated: 4 November 2005
Counsel for the Applicant: Mr Andrew Herbert Solicitor for the Applicant: Deacons Lawyers Counsel for the Respondent: Mr Terry Martin SC, with Mr Mark Plunkett Solicitor for the Respondent: Hall Payne Lawyers Date of Hearing: 21-22 July 2005 Date of Judgment: 4 November 2005
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