Employment Advocate v Williamson [2001] FCA 1164 Industrial law - Evidence
Employment Advocate v Williamson [2001] FCA 1164
INDUSTRIALLAW - organisation - freedom of association - freedom not to belong to trade union - shop steward on construction site - statements to representative of contractor - no particular employee or prospective employee in contemplation - whether statements constituted advice encouragement or incitement to take action which, if taken, would have constituted taking action for a prohibited reason
EVIDENCE - improperly obtained - power to admit - whether discretionary - factors to be taken into account
WORDS AND PHRASES - "propose" - "does not propose to" - "do not propose to" - "advise, encourage or incite"
JONATHAN HAMBERGER, THE EMPLOYMENT ADVOCATE v IAN WILLIAMSON AND THE CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION
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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AGLC
Employment Advocate v Williamson [2001] FCA 1164
Case
[2001] FCA 1164
Decision Date
CaseChat Overview and Summary
This appeal is from the judgment of a single judge of the Federal Court of Australia dismissing an application for the imposition on the respondents of penalties in respect of two alleged contraventions of s 298P(3) of the Workplace Relations Act 1996 (Cth) ("the Act"). The appellant, the Employment Advocate, is the person appointed to investigate contraventions of the Act. The second respondent, the Construction, Forestry, Mining and Energy Union, is an organisation of employees, registered under Pt IX of the Act. When the events the subject of this proceeding took place, the first respondent was a member of the second respondent and was its shop steward at a building site in Muir Street, Hawthorn. The first respondent was employed by Abigroup Contractors Pty Ltd ("Abigroup"), the head contractor in respect of construction work in progress at that site. Abigroup had entered into a contract with Carson Painting Contractors Pty Ltd ("CPC"), whereby CPC was obliged to supply labour, equipment and materials for the performance of all painting work at the site. The managing director of CPC was Mr Lee Carson. The first alleged contravention of s 298P(3) of the Act is alleged to have occurred in a conversation between the first respondent and Mr John Lyten, who supervised CPC's operations at the site, in late January or early February 1999. The second contravention is alleged to have occurred in a conversation between Mr Lyten, Mr Carson and the first respondent on 11 February 1999. The primary judge found that the first alleged contravention was not established. His Honour concluded that the evidence was insufficient to establish, on the balance of probabilities, that the statement made by the first respondent constituted advice, encouragement or incitement to CPC to take any action. The primary judge found that the second alleged contravention was not established because the evidence in support of it was inadmissible. The trial judge concluded that the evidence was obtained improperly. The trial judge excluded the evidence from being admitted under s 138 of the Evidence Act 1995 (Cth). The appellant sought to rely on the tape recording and the transcript prepared from it to establish the second contravention. The appeal against the primary judge's finding that the first alleged contravention was not established should be dismissed. The appeal against the primary judge's finding that the second alleged contravention was not established should also be dismissed. In this respect, the appeal is bound by the conduct of the case at trial. The Advocate's case at trial was that the second alleged contravention involved a contravention of s 298P(3) directed at Mr Lyten as an employee of either CPC or IJ Enterprises Pty Ltd ("IJ"). The Advocate's case on appeal, however, is that the contravention involved a contravention directed at "any possible current or future employee of [CPC]", though not necessarily Lyten. Further, whilst the case at trial was that Williamson had targeted an employee of CPC or IJ, on appeal the Advocate's case grew to include a submission that Williamson's target "would have included" independent contractors, not just an employee, or even employees, of CPC or IJ. The Advocate did not make any allegation at the commencement of the trial or during running that the relationship between CPC and IJ was a sham and that Mr Lyten was in fact retained personally by CPC as an independent contractor. On the contrary, as already noted, the Advocate's case was that CPC and IJ had entered into a genuine contractual relationship, pursuant to which IJ undertook, as an independent contractor, to perform services for CPC. Only when the hearing had all but concluded, did counsel for the Advocate touch on the possibility that the real independent contractor may have been Lyten. That possibility was not, however, further explored at trial, although it was revisited on this appeal. I do not consider it open to the Advocate to advance a case on appeal that is substantially different from that conducted by him at trial (at least until closing address) in order to meet the respondents' submission that the case fought below was bound to fail. The circumstances attending the Advocate's attempt below to depart from the case as he had conducted it confirm me in this view. The Advocate had an opportunity to apply to his Honour to recast his case, as the second respondent suggested he might. Had the Advocate successfully done so, then it appears that the respondents would have sought to meet the reformulated case by reopening their cross-examination. The Advocate chose not to make any such application. In effect, the second respondent successfully opposed the Advocate's attempt to expand his case in closing address, upon the basis that the respondents had defended themselves against the case as particularised in the Advocate's contentions of fact and law. The rule that an appellant is bound by the conduct of his case below is well established and regularly applied in appellate courts. There are no exceptional circumstances that would justify departing from the rule in this case. For the reasons already given, the case litigated at trial was bound to fail, even if the tape recording and the transcript were admitted in evidence. This was because the Advocate could not establish that Mr Lyten was an employee of either CPC or IJ. Accordingly, for the reasons given, I would dismiss the whole of the appeal.