FEDERAL COURT OF AUSTRALIA
Fair Work Ombudsman v Roach (The Melbourne Quarter Case) [2023] FCA 156
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Details
- Case
- [2023] FCA 156
- Decision Date
CaseChat Overview and Summary
The Fair Work Ombudsman (FWA) sought declarations and penalties against the Construction and General Division of the Union (the Union) and one of its representatives, Mr Roach, for alleged contraventions of sections 348 and 349 of the Fair Work Act 2009 (Cth). The dispute centred on an incident at the Melbourne Quarter project site where it was claimed that Mr Roach told a caulking subcontractor that he could not work on the site unless he paid outstanding union fees. The Union denied the allegations and argued that if any contraventions occurred, they were not attributable to it. The court had to determine whether the Union and Mr Roach contravened the specified sections of the FW Act and, if so, whether the contraventions were attributable to the Union.
The court examined the evidence of the key witnesses and found discrepancies in their accounts of what transpired during the site induction. The evidence of the employees of the subcontractor was generally accepted as more reliable. The court concluded that Mr Roach did threaten and prevent Mr Watterston from working on the site until he paid a union fee, thereby contravening section 348 of the FW Act. The court further found that the contraventions were attributable to the Union under sections 363 or 793 of the FW Act due to the attribution of Mr Roach's conduct and state of mind to the Union. The court also found that Mr Roach acted with the intent to coerce Mr Watterston to pay membership fees to the Union, fulfilling the intent requirement under section 348 of the FW Act.
The court ordered that by a specified date, the parties' practitioners were to confer and submit proposed draft orders to the court. If the parties could not agree on a single form of draft orders, each party was to submit their respective proposed draft orders by the same date. The final orders were to be entered in accordance with Rule 39.32 of the Federal Court Rules 2011.
The court examined the evidence of the key witnesses and found discrepancies in their accounts of what transpired during the site induction. The evidence of the employees of the subcontractor was generally accepted as more reliable. The court concluded that Mr Roach did threaten and prevent Mr Watterston from working on the site until he paid a union fee, thereby contravening section 348 of the FW Act. The court further found that the contraventions were attributable to the Union under sections 363 or 793 of the FW Act due to the attribution of Mr Roach's conduct and state of mind to the Union. The court also found that Mr Roach acted with the intent to coerce Mr Watterston to pay membership fees to the Union, fulfilling the intent requirement under section 348 of the FW Act.
The court ordered that by a specified date, the parties' practitioners were to confer and submit proposed draft orders to the court. If the parties could not agree on a single form of draft orders, each party was to submit their respective proposed draft orders by the same date. The final orders were to be entered in accordance with Rule 39.32 of the Federal Court Rules 2011.
Orders
Orders of the court
1. By 4.00 pm on 17 March 2023, the practitioners for the parties are to confer and submit to the Chambers of the Hon Justice Wheelahan via email proposed draft orders in relation to the further conduct and disposition of this proceeding.
2. If the parties are unable to agree on a single form of draft orders, then by 4.00 pm on 17 March 2023, each party is to submit their respective proposed draft orders.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
In its amended defence, the Union denied that Mr Roach had contravened s 348 or s 349 of the FW Act, and otherwise made no admissions as to its own liability for the actions of Mr Roach. However, in submissions counsel for the respondents accepted that if the contraventions by Mr Roach were established, then the Union would be liable as a result of the attribution of his conduct and state of mind to the Union by s 363 or s 793 of the FW Act.Background Mr Watterston and Mr Simone were employed by a company, Melbourne Caulking Pty Ltd, which Mr Watterston described in evidence as a partnership between him, Mr Simone, and their wives. Mr Watterston had been a member of the Union for a number of years. On 24 September 2019, Mr John Setka, the State Secretary of the Construction and General Division of the Union, sent an email to Mr Watterston with a reminder that membership fees of $1001 were due by 1 October 2019. The email stated that if Mr Watterston was no longer working in the industry, he should contact the Union’s head office, or reply to the email in order to place his membership on hold. On 25 September 2019, Mr Watterston’s wife sent an email on his behalf stating that since the beginning of the year he was no longer working in the industry, and that he would no longer be a union member. Mr Watterston gave evidence that he was then required to make a payment to the union of $412.50, which was made on 28 October 2019, and which was his last payment. On 9 April 2020, Melbourne Caulking was engaged by Geschke Pty Ltd (Geschke Plumbing), which was a plumbing subcontractor of Lendlease, to perform some caulking work at the Melbourne Quarter project site. At about the time of the engagement, Mr Watterston spoke to Mr Shannon Silver of Geschke Plumbing concerning whether the absence of union membership presented a problem. Following this conversation, Mr Silver sent an email to Mr Watterston stating that he had confirmed with Lendlease “that being in the union is not a necessity in order to gain access to the site”. Arrangements were made by Geschke Plumbing for Mr Watterston and Mr Simone to attend the site at 7.30 am on Monday 20 April 2020, and for them to attend an induction, which they did. What occurred immediately following the induction is contentious and is the subject matter of the applicant’s claims of contravention of the FW Act by the respondents.The evidence Seven witnesses were called. All witnesses gave viva voce evidence-in-chief and were cross-examined. The following witnesses were called by counsel for the applicant –(a)Mr Watterston;(b)Mr Simone;(c)Mr Bradley Golz, who was an employee of Geschke Plumbing; and(d)Ms Ruth Dunsby, who was at the relevant time an inspector employed by the Australian Building and Construction Commission (the Commission). Counsel for the respondents called three witnesses –(a)Mr Roach, the first respondent;(b)Mr Kerry Jones, who was an occupational health and safety representative for the plumbers at the site; and (c)Ms Bridie Murphy, a solicitor who had acted for Mr Roach when the matter was investigated by Lendlease and the Commission.Telephone records
Evidence
Evidence Before The Court
The objective evidence relating to the time of the various telephone calls is relevant to the evaluation of the witness evidence.Evidence of Mr WatterstonMr Watterston – evidence-in-chief Mr Watterston stated that he and Mr Simone attended an induction at the site at 7.30 am on 20 April 2020. The induction was undertaken by a representative of Lendlease, and he and Mr Simone were amongst nine inductees. Mr Watterston stated that the induction went for a good three quarters of an hour, and concluded at around 8.15 am or 8.20 am. Mr Watterston stated that at the conclusion of the induction he and Mr Simone made their way towards the exit to the induction room. He stated that Mr Roach was standing in front of them, by himself, and said, “Boys go take a seat up there”, and pointed them towards some tables at the back of a large lunchroom that was outside the induction room. Mr Watterston and Mr Simone then took seats at the table, sitting diagonally opposite each other. Mr Watterston stated that Mr Roach then went off somewhere for a while before returning and stating, “Let’s see your cards”. Mr Watterston explained that on jobsites they always handed over CBUS, Incolink, CoINVEST, working at heights, and union cards, and that he and Mr Simone each kept these cards in a small folder that had been supplied some years earlier by the Union. Mr Simone gave his cards to Mr Roach first, who stepped away from the table towards a corner of the room and checked them. Mr Roach then told Mr Simone, “Yes, you’re good“. Mr Watterston stated that Mr Roach then asked for his cards, in response to which Mr Watterston initially told Mr Roach that he did not think he had to provide a union card. He explained in evidence that he said this as a result of his conversation with Mr Silver of Geschke Plumbing, who had told him that he did not have to be a union member to work on the site. Mr Roach responded to Mr Watterston by stating “I don’t know who told you that”, following which Mr Watterston “ummed and ahhed a bit about it with Steve” before giving Mr Roach his cards which Mr Roach took before sitting at a nearby table in the room. Mr Watterston stated that Mr Roach attempted to check the cards using an app on his phone, and then made a telephone call. After Mr Roach finished the telephone call, he returned to Mr Watterston and told him that he had to pay the sum of $500, and he returned the cards. Mr Watterston stated that he told Mr Roach something along the lines, “Well, I just – we made a payment not long ago about – just making it up-to-date”. Mr Watterston also stated that he said to Mr Roach, “I just made my final payment and I’m not paying any more”. Mr Watterston stated in evidence that he was hoping that because he had paid fees to close his account, that maybe he was covered for the following six months and that he was still current, thinking that it might be close to the cut-off date. Mr Watterston stated that Mr Roach’s response was “pretty much just, if you don’t pay it, you – you know, you’re not going to be working here.” Mr Watterston qualified his evidence by stating that he was “not quite sure” whether the discussion about the fact that he had made a payment to the Union occurred before or after Mr Roach made the telephone call.
Decision
Reasons for decision
It follows from the above analysis that I do not accept the evidence of Mr Roach and Mr Jones that a safety “spiel” occurred. And on the main question in the proceeding, for the foregoing reasons I am comfortably satisfied that upon Mr Watterston seeking clarification, Mr Roach conveyed to him that he could not commence work on the site until he had attended to the payment of a Union fee of $515. Whether Mr Roach referred to $515 or $500 is not material, but I consider that it is more likely that he referred to a sum of $515, being the fee due for the six month term commencing 1 April 2020. A necessary consequence is that in preferring the evidence of Mr Watterston and Mr Simone I do not accept the evidence of Mr Roach that he did not seek to prevent Mr Watterston working on the site, and to the extent that Mr Jones’s evidence did not refer to Mr Roach’s clarification that Mr Watterston was not permitted to work on the site, I do not accept his evidence either. I accept that upon being told that he could not work on the site that Mr Watterston uttered an expletive to Mr Roach. Whether he said “[eff] you” or “I am sick of you [*unts]” is not material: each expression employed the use of a profanity to convey exasperation.Conclusions On the basis of the above findings of fact, I conclude that on 20 April 2020 Mr Roach by his statements to Mr Watterston threatened to prevent and in a practical sense by the exercise of illegitimate authority did prevent Mr Watterston from performing work at the site until he paid a fee to the Union. Mr Roach’s conduct was reinforced by his conversation with Mr Golz in which I find that Mr Roach told Mr Golz that Mr Watterston was not permitted to commence work on the site until he attended to a payment to the Union. Mr Roach thereby both threatened to take action and took action against Mr Watterston for the purposes of s 348 of the FW Act. In referring to Mr Roach’s conversation with Mr Golz, I am not enlarging on the pleaded contravention, only treating it as a reinforcement of the contravention by Mr Roach that had already occurred, namely stating to Mr Watterston that he was not permitted to work on the site. By [10] of the statement of claim the applicant alleged that Mr Roach acted with the intention of negating Mr Watterston’s choice to pay membership subscriptions, levies and/or dues to the Union. That allegation having been made in the proceeding, s 361 of the FW Act is engaged, and the alleged reason is presumed unless proven otherwise. The respondents denied taking the action that was alleged, and did not plead or otherwise advance a case, still less prove that the action was not taken for the reasons alleged by the applicant in [10] of the statement of claim. To the extent that it is necessary to do so, I also find that the evidence is consistent with the hypothesis that Mr Roach was actuated by the reasons alleged in [10] of the statement of claim: see Australian Red Cross Society v Queensland Nurses’ Union of Employees [2019] FCAFC; 273 FCR 332 at [74] (Greenwood, Besanko and Rangiah JJ), and I therefore find that the reasons alleged in [10] of the statement of claim are established. These reasons amount to an intent to exercise a sufficient degree of compulsion, that is, denial of choice, as to amount to an intent to coerce Mr Watterston to pay membership fees to the Union.
Ratio Decidendi
Legal Principle Established
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