Hadgkiss v Blevin
[2004] FCA 697
•31 MAY 2004
FEDERAL COURT OF AUSTRALIA
Hadgkiss v Blevin [2004] FCA 697
INDUSTRIAL LAW – employment of non-trade union member in building industry – requirement by trade union officer of employer that employee become a member of the trade union for that industry – threat of ‘trouble’ if employee did not do so – conduct constituting advice encouragement or incitement of employer or threat to organise industrial action with intent to coerce employer to dismiss or injure employee – employee absent from work in reaction to threat – thereafter employee returned to work and simultaneously joined the Union – finding of statutory breach – penalty to be assessed – compensation to dissenting employee to be assessed
Workplace Relations Act 1996 (Cth) ss 3(f), 298A, 298B(1) and (2), 298K(1), 298L(1), 298P(3), 298T(1) and (2)(d), 298U, 298V and 298X
Rowe v Transport Workers’ Union (1998) 90 FCR 95
The Employment Advocate v National Union Of Workers (2000) 100 FCR 454
Employment Advocate v Williamson (2001) 111 FCR 20
Hadgkiss v Blevin & Ors [2003] FCA 1167
Minister for Natural Resources v NSW Aboriginal Land Council (1987) 9 NSWLR 154
McLean Brothers & Rigg Ltd v Grice (1906) 4 CLR 835
Refrigerated Express Lines (A’asia) Pty Ltd v Australian Meat and Livestock Corporation (1979) 42 FLR 204
Australian Competition and Consumer Commission v FFE Building Services Ltd [2003] FCAFC 132
Reid v Howard (1975) 184 CLR 1
Alfred v Walter Construction Group Ltd [2003] FCA 993
Maritime Union of Australia v Geraldton Port Authority (1999) 93 FCR 34
Watson v Foxman (2000) 49 NSWLR 315
Australian Municipal, Administrative, Clerical & Services Union v Ansett Australia Ltd [2000] FCA 441
Davids Distribution Pty Ltd v National Union of Workers (1999) 91 FCR 463
Greater Dandenong City Council v Australian Municipal, Clerical and Services Union (2001) 184 ALR 1
Construction, Forestry, Mining and Energy Union v Coal and Allied Operations Pty Ltd [1999] FCA 1531C Jessup QC, ‘The Onus of Proof in Proceedings under Part XA of the Workplace Relations Act 1996, Australian Journal of Labour Law, Vol 15, 2002 pp 198-208
NIGEL HADGKISS AS DELEGATE OF THE EMPLOYMENT ADVOCATE v ALAN BLEVIN, JOSEPH McGAHAN AND CONSTRUCTION FORESTRY MINING AND ENERGY UNION
N 414 OF 2003
CONTI J
1 JUNE 2004
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
N 414 OF 2003
BETWEEN:
NIGEL HADGKISS AS DELEGATE OF THE EMPLOYMENT ADVOCATE
APPLICANTAND:
ALAN BLEVIN
FIRST RESPONDENTJOSEPH McGAHAN
SECOND RESPONDENTCONSTRUCTION FORESTRY MINING AND ENERGY UNION
THIRD RESPONDENTJUDGE:
CONTI J
DATE OF ORDER:
31 MAY 2004
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The proceedings be stood over for further hearing to determine the amount of the penalty to be awarded against the respondents for contravention of s 298P(3) of the Workplace Relations Act 1996 (Cth), and the amount of compensation to be payable to Conrado de los Reyes pursuant to s 298U(c) of the Act, and in either case, by whom.
2.The respective parties provide written submissions to the Court within 14 days in relation to the assessment of penalty and compensation, and by whom the same should be paid.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
N 414 OF 2003
BETWEEN:
NIGEL HADGKISS AS DELEGATE OF THE EMPLOYMENT ADVOCATE
APPLICANTAND:
ALAN BLEVIN
FIRST RESPONDENTJOSEPH McGAHAN
SECOND RESPONDENTCONSTRUCTION FORESTRY MINING AND ENERGY UNION
THIRD RESPONDENT
JUDGE:
CONTI J
DATE:
1 JUNE 2004
PLACE:
SYDNEY
REASONS FOR JUDGMENT
Outline of relevant provisions of the Workplace Relations Act and Part XA in particular
By instrument in writing bearing date 23 January 2003, the Employment Advocate under the Workplace Relations Act 1996 (Cth) (‘the Act’), being Jonathan Marc Hamberger, delegated to the person occupying the position of Head of the Interim Taskforce into the Building and Construction Industry in the Department of Employment and Workplace Relations, and any person acting in that position from time to time appointed or employed by the Commonwealth, the power to make an application in respect of conduct in contravention of Part XA (headed Freedom of Association) of the Act, pursuant to s 298T(2)(d) thereof (infra). That instrument did not specify the name of any person to occupy the abovementioned position.
The applicant (‘Mr Hadgkiss’) asserts that he has occupied and acted in the position of Head of the Interim Taskforce at all material times, being a person so appointed and employed by the Commonwealth. It was conceded by the respondents that if Mr Hadgkiss had been validly appointed to that office, he was authorised by law to bring the present application. Whether he was so validly appointed, being a matter put in issue by the respondents, is later discussed and resolved in favour of Mr Hadgkiss.
The objects of Part XA of the Act are described in s 298A of Division 1 thereof as follows:
‘As well as the objects set out in section 3, this Part has these objects:
(a)to ensure that employers, employees and independent contractors are free to join industrial associations of their choice or not to join industrial associations; and
(b)to ensure that employers, employees and independent contractors are not discriminated against or victimised because they are, or are not, members or officers of industrial associations.
Section 3(f) of Part I of the Act includes as a principal object one of ‘ensuring freedom of association, including the rights of employees and employers to join an organisation or association of their choice, and not to join an organisation or association…’. It is not in dispute that the third respondent is an industrial association, though as will later be explained, the respondents did raise what may be described as a constituent dispute. That statutory expression is defined by s 298B(1) to mean (inter alia) an association of employees and/or independent contractors and/or employers, a principal purpose whereof is the protection and promotion of their interests in matters concerning their employment, or their interests as independent contractors (as the case requires).
It is stipulated by Division 1 of s 298B(2) of the Act that for the purposes of Part XA:
‘… action done by one of the following bodies or persons is taken to have been done by an industrial association:
(a) the committee of management of the industrial association;
(b)an officer or agent of the industrial association acting in that capacity;
(c)a member or group of members of the industrial association acting under the rules of the association;
(d)a member of the industrial association, who performs the function of dealing with an employer on behalf of the member and other members of the association, acting in that capacity.’
In Rowe v Transport Workers’ Union (1998) 90 FCR 95, Cooper J said at 114-116:
‘The principle [as to when a servant or agent will bind a principal] is not limited to the relationship of master and servant but applies to all relationships of principal and agent… If the act is within the scope of the authority of the agent, it is immaterial that the principal directed the agent not to do it or was unaware that the act had been or was to be done…
Section 298B(2)(a) and (b) have the effect of making an industrial association liable for the conduct of the committee of management or an officer or agent of the industrial association, acting in that capacity, where that conduct occurs in circumstances which would render the industrial association liable if the conduct was a civil wrong…
The defining feature of s 298B(2)(b) is that the officer or agent is acting in that capacity. The definition excludes conduct not undertaken in the capacity of officer or agent. The authority of an officer to act on behalf of and to bind the industrial association depends upon the extent of the authority which attaches to the particular office or agency.’
Moreover in The Employment Advocate v National Union Of Workers (2000) 100 FCR 454 (‘NUW’), Einfeld J observed at [121] in relation to the immediately preceding paragraph cited from Rowe as follows:
‘Without making any observation on whether and in what manner a special vicarious liability exists in these types of cases, I do not think that his Honour’s words could be taken to mean that in any situation where an officer has acted in a manner apparently within his authority the Union of which he is an officer could escape liability under the Act simply by saying that he was not acting by the rules of the Union when he acted. Union rules are hardly likely to accommodate conduct that contravenes the law, but that does not mean that unlawful conduct can never be attributed to the Union, as the Act clearly seeks to do.’
Division 5 of Part XA of the Act is headed Conduct by industrial associations etc. Subsection 298P(3) of Division 5 of the Act provides as follows:
‘An industrial association, or an officer or member of an industrial association, must not:
(a)advise, encourage or incite an employer; or
…
to take action in relation to a person that would, if taken, contravene section 298K.’
The term officer is non-exclusively defined by s 298B, in relation to an industrial association, as follows:
‘(a) a delegate or other representative of the association; and
(b) an employee of the association.’
It is s 298P(3) of the Act which is said to have been infringed by the respondents; that subsection is expressed to operate in relation to s 298K of the Act.
In Employment Advocate v Williamson (2001) 111 FCR 20, Gray J as a member of a Full Court, observed at [26] that for an infringement of s 298P(3) to occur, ‘… it must be possible to identify some conduct by the recipient of a communication that the recipient is being advised, encouraged, incited or coerced to take, and which, if taken, would contravene s 298K’. Branson J as a member of the same Full Court observed at [72] that each of the words of the par (a) expressions advise, encourage or incite in s 298P(3) ‘… bear different shades of meaning but with “advice” being intended to encompass conduct somewhat more lenitive than conduct which could be characterised as encouragement or incitement’.
Section 298T(1) of Division 6 of Part XA the Act provides that an application may be made to this Court for orders under s 298U in respect of conduct in contravention of Part XA. Section 298T(2)(d) of the same Division provides that the application may be made by the Employment Advocate. It is common ground that proceedings under the Act are penal but not criminal in nature, civil forms of procedure being stipulated, and further that the Federal Court has exclusive jurisdiction with respect to contraventions of Part XA.
Thus s 298U of Division 6 of Part XA of the Act reads as follows, so far as is material:
‘In respect of conduct in contravention of this Part, the Court may, if the Court considers it appropriate in all the circumstances of the case, make one or more of the following orders:
(a)an order imposing on a person or industrial association whose conduct contravened or is contravening the provision in question a penalty of not more than:
(i)in the case of a body corporate - $10,000; or
(ii)in any other case - $2,000;
…
(c)an order requiring the person or industrial association to pay to an employee or independent contractor, or to a prospective employee or independent contractor, compensation of such amount as the Court thinks appropriate;
…
(f)any other consequential orders.’
A contravention of Part XA is not an offence : see s 298X of the Act.
Section 298K(1) of Division 3 of Part XA provides in relation to employers as follows:
‘An employer must not, for a prohibited reason, or for reasons that include a prohibited reason, do or threaten to do any of the following:
(a)dismiss an employee;
(b)injure an employee in his or her employment;
(c)alter the position of an employee to the employee’s prejudice;
(d)refuse to employ another person;
(e)discriminate against another person in the terms or conditions on which the employer offers to employ the other person.’
A prohibited reason, for the purposes of subs 298K(1), is described in subs 298L(1) of Division 3 of Part XA as ‘conduct… carried out because the employee…
…
(b)is not, or does not propose to become, a member of an industrial association…’
Division 6 of Part XA is headed Remedies for breaches of this Part. Section 298V of that Division dispenses with the requirement of proof of the reason for, or of the intention of, conduct falling within Part XA, in the following circumstances and to the following extent:
‘If:
(a)in an application under this Division relating to a person’s or an industrial association’s conduct, it is alleged that the conduct was, or is being, carried out for a particular reason or with a particular intent; and
(b)for the person or industrial association to carry out the conduct for that reason or with that intent would constitute a contravention of this Part;
it is presumed, in proceedings under this Division arising from the application, that the conduct was, or is being, carried out for that reason or with that intent, unless the person or industrial association proves otherwise.’
In his Article headed The Onus of Proof in Proceedings under Part XA of the Workplace Relations Act 1996 appearing in Vol 15 of the Australian Journal of Labour Law commencing at page 199, Mr Jessup of Queens Counsel observed, in relation to the use by s 298V(a) of the word application, as follows:
‘Under [the Act], proceedings are penal but not criminal. Civil forms of procedure are used. The Federal Court of Australia has exclusive jurisdiction with respect to contraventions of Pt XA, and the prescribed means of initiating a civil proceeding in that court is by “application”. The use by the Federal Court Rules of this rather generic label for the initiating document has led to some uncertainty as to the meaning of the reference to “an application” in para (a) of s 298V. This is not an unimportant issue, since it is clear that s 298V still requires an allegation as to a particular reason (or intent), and so it should, as the menu of reasons in s 298L is so extensive that it would be quite unrealistic to construe the legislation as imposing on the defendant the onus of disproving every one of them when an applicant has done nothing more than to commence a proceeding under the Part.’
I will later return to the implications of the onus of proof in proceedings for contravention of the Act, by reason of the operation of s 298V.
The Employment Advocate’s case in outline
The starting point of the Employment Advocate’s pleaded case is that the third respondent Construction Forestry Mining and Energy Union has been at all material times an association of employees that is registered or recognised as such under the Act, and also an industrial association within Part XA of the Act, and that each of the first and second respondents has been at all material times a delegate, representative, officer and/or member of that Union. Subject to the issue raised as to whether the respondents were amenable to the present causes of action, having regard to the allegedly different constituent circumstances of the third respondent as a State or Federal registered union usually bearing the same designation, I will refer to the third respondent in these reasons for convenience of description as ‘the Union’.
The applicant’s case outlined by the amended statement of claim filed on 3 October 2003 was in outline as follows:
(i)Bakkante Constructions Pty Ltd (‘Bakkante’) was engaged in the construction of the Clifton Apartments building at Pyrmont near Sydney; Benjamin Yee (‘Mr Yee’) was a working director of Bakkante;
(ii)Bakkante employed Conrado (also known as Rodney) de los Reyes (‘Mr de los Reyes’) on that construction site; Mr de los Reyes became a member of the Union for a limited period of time in controversial circumstances;
(iii)on or about 26 November 2002 the first respondent (‘Mr Blevin’) informed Mr Yee that Mr de los Reyes must become a member of the Union, and that Mr de los Reyes was not going to get the pay and work conditions of the Union if he did not effectively pay for the same by becoming a member of the Union, and further that if Mr de los Reyes did not join the Union by Monday 2 December 2002, there would be ‘trouble’;
(iv)by so doing, Mr Blevin advised, encouraged or incited Bakkante, or threatened to organise to take industrial action against Bakkante, with intent to coerce Bakkante to take action in relation to Mr de los Reyes that would, if taken, contravene s 298K of the Act, namely action to dismiss Mr de los Reyes, or to injure Mr de los Reyes in his employment, or to alter the position of Mr de los Reyes to his prejudice, because Mr de los Reyes would not become a member of the Union;
(v)by reason of those matters, Mr Blevin contravened s 298P(3) of the Act;
(vi)on 28 November 2002, in the presence of Mr Yee on behalf of Bakkante, the second respondent (‘Mr McGahan’) enquired of Mr de los Reyes why it was that he did not join the Union, and was informed by Mr de los Reyes that he did not wish to join the Union;
(vii)immediately following the departure of Mr de los Reyes from their presence, Mr McGahan demanded of Mr Yee that Bakkante cease employing Mr de los Reyes on the Clifton Apartments site;
(vii)by acting in the manner complained of, Mr McGahan advised encouraged or incited Bakkante, and threatened to organise or take industrial action against Bakkante, with intent to coerce Bakkante to take action in relation to Mr de los Reyes that would, if organised or taken, contravene s 298K of the Act in the following respects, being conduct resulting in the dismissal of Mr de los Reyes, or injuring Mr de los Reyes in his employment, or otherwise altering the position of Mr de los Reyes to his prejudice, because Mr de los Reyes was not, and did not propose to become, a member of the Union;
(ix)by reason of those matters, Mr McGahan further contravened s 298P(3) of the Act;
(x)as a result of the actions of Mr Blevin and/or Mr McGahan complained of, Mr de los Reyes ceased working on the Clifton Apartments site from Friday 29 November 2002 until Monday 9 December 2002, on which date he became a member of the Union; that period of time was said to involve the absence of six working days during which Mr de los Reyes would normally have worked, and in addition to that loss of working days, it was further said by the applicant that since joining Bakkante, he had often additionally worked on Saturdays;
(xi)Bakkante’s ‘in-house’ accountant calculated that Mr de los Reyes lost an estimated $1090.43 gross wages during his absence, calculated at an hourly rate of $16.88 for a forty hours working week, plus a productivity allowance of $3.50 per hour, a site allowance of $1.00 per hour and a travel allowance of $17.95 per day;
(xii)at all such material times each of Mr Blevin and Mr McGahan was an officer or agent of the Union and/or a member of the Union who performed the function of dealing with Bakkante, being an employer, on behalf of himself and other members of the Union, acting in that capacity, by reason whereof their respective actions are taken to be the actions of the Union; and
(xiii)by reason of those pleaded circumstances and each of them, the Union also contravened s 298P(3) of the Act.
The relief sought by the application accompanying the original statement of claim, filed on 31 March 2003 was framed as follows:
(i)an order pursuant to s 298U(a) imposing a penalty on each respondent for contravention of s 298P(3) of the Act;
(ii)an order pursuant to s 298U(c) requiring each of the respondents to pay compensation of such amount as the Court thinks appropriate to Mr de los Reyes; and
(iii)orders pursuant to s 298U(f) as the Court sees fit.
The text of those paragraphs of s 298U have been of course earlier reproduced.
The respondents’ defence in outline
The respondents by their respective defences filed in the proceedings raised the following issues:
(i) whether the applicant had locus standi to bring the proceedings; and
(ii)whether the respondents were guilty of conduct amounting to breach of relevant provisions of the Act.
Those issues involved a number of complex aspects or considerations which are required to be addressed.
In relation to the first issue, the respondents conceded that the power to make an application in relation to Part XA contraventions could be lawfully delegated by the Employment Advocate to the Head of the Interim Building Industry Taskforce, but contended that Mr Hadgkiss had never been appointed to that office. In relation to the second issue, in what might be described as its substantive sense, the respondents raised spirited resistance, based upon conflicts between the testimonies principally of Mr Yee and Mr de los Reyes on the one hand, and those of Messrs Blevin and McGahan on the other, and in the course of so doing, matters relating for instance to the employment and work practices and bookkeeping records of Bakkante arose. The testimonial evidence in the proceedings was tendered in the first instance extensively by affidavits, supplemented later by oral evidence; lengthy cross-examination took place of the principal witnesses. The hearing of the evidence, and several interlocutory debates, extended over six days, followed initially by detailed written submissions, and subsequently by oral addresses which took place on 4 and 12 December 2003. A substantial amount of documentary material was tendered in evidence by both parties.
The respondents, or at least the Union as third respondent, raised a further issue, which appeared to be first notified, at least explicitly, in the course of reading the affidavits filed on behalf of the applicant on the opening day of the hearing, being an issue as to whether Messrs Blevin and McGahan were employed by or otherwise represented on the relevant occasions the so-called ‘Federal Union’ bearing the designation of Construction Forestry Mining and Energy Union, rather than of the so-called ‘State Union’ bearing the same designation. Counsel for the respondents explained the implications of this constituent issue, at the time of foreshadowing the same, as ‘perplexing’, in the following sense:
‘One of the issues that will come up in the case, to put it squarely, is whether people are representatives of… the State Union, being the union registered under the State legislation, or the Federal Union being the union registered under the Federal legislation… They are in fact different legal entities and there’s countless authority [sic] on that point… One of the issues that will come up here very squarely is who are these people employed by… we are saying that they are not employed by the Federal Union.’
None of the ‘countless authorities’ which counsel for the respondents described above appear to have been cited in final addresses. Whether employment is the sole test for attributing the conduct of Messrs Blevin and McGahan to the Union is controversial.
Moreover I do not think that it was entirely correct for the respondents to speak of an issue as to the difference in legal entity between the Federal and State Unions arising ‘very squarely’ in the proceedings. The respondents merely did not admit, by their defences originally filed, that Mr Blevin was a delegate and/or representative and/or member of the Union, or that Mr McGahan was a representative, employee and/or member of the Union. Thereafter there was filed in Court, albeit on the concluding day of the hearing of the viva voce evidence in the proceedings, separate defences by each respondent stating merely to the following effect:
(i)Mr Blevin did not admit that he was a delegate or presentative or officer of the Union, or that Mr McGahan was a representative, employee, officer or member of the Union, but admitted that he was a member of the Union;
(ii)Mr McGahan denied that he was a representative, employee and officer of the Union, but admitted to being a representative and employee of the so-called Construction Forestry Mining and Energy Union (NSW Branch); and
(iii)the Union denied that Mr Blevin was a delegate, representative or officer of the Union but asserted that he was a delegate and representative of the NSW Branch of the Construction Forestry and Energy Union (NSW) Branch; the Union admitted however that Mr Blevin was a member of the Union; the Union further denied that Mr McGahan was a representative, employee or officer of the Union, asserting that he had ‘resigned his office’, whatever ‘his office’ was intended precisely to refer to on 7 January 2002; the Union pleaded that Mr McGahan was an employee of the Construction Forestry Mining and Energy Union (NSW Branch), and admitted that Mr McGahan was a member of the Union.
The implications of the admissions involve matters of some difficulty.
The circumstances leading to the commencement of the proceedings
On 2 December 2002, Mr J S Copeland, an officer of the Australian Public Service employed by the Department of Employment and Workplace Relations and attached to the Interim Building Industry Taskforce as an Inspector under the operational control of the applicant Mr Hadgkiss, was telephoned by Mr Shah Yee, he being the Chairman of the Board of Directors of Belijan Developments Pty Limited (‘Belijan’) and a director of Bakkante, and the father of the abovementioned Benjamin Yee (Benjamin Yee being referred to in these reasons as ‘Mr Yee’). It was Mr Yee who gave the principal evidence in the proceedings on behalf of Bakkante, apparently a subsidiary of Belijan. The father, Mr Shah Yee, was said by Mr Hadgkiss to have originally made allegations to him on behalf of Bakkante in relation to the conduct of Mr Blevin and Mr McGahan complained of the proceedings. Subsequently on 10 March 2003, Mr Copeland visited the office of the Union at Lidcombe and obtained documentation from the Union, pursuant to a notice dated 20 February 2003 issued purportedly pursuant to s 83BH(4)(d) of the Act. At the commencement of the second day of the hearing of the proceedings (21 October 2003), I admitted into evidence that documentation, and in so doing I overruled the objections of the respondents. My basis for so ruling appear in reasons published as Hadgkiss v Blevin & Ors [2003] FCA 1167.
The documentation produced and exhibited to Mr Copeland’s affidavit the subject of those rulings included the following:
(i)membership application bearing date 24 July 1995 of Mr Blevin to join the Building Workers’ Industrial Union of Australia (BWIU); that organisation was said by Mr Copeland to have later become named as Construction Forestry Mining and Energy Union (‘CFMEU’);
(ii)electronic membership records held by the Union concerning Mr Blevin;
(iii)electronic audit receipt book records held by the Union concerning Mr Blevin for the period 16 August 2002 to 19 December 2002;
(iv)a document titled ‘CFMEU Delegates Registration Form’ dated 8 January 2001 relating to Mr Blevin’s election as a CFMEU union delegate in relation to a Fletcher Constructions site in Harris Street Ultimo NSW; the reverse side of the document contained an undertaking dated 9 January 2001, purportedly signed by Mr Blevin, to abide by the CFMEU Code of Conduct for Union Delegates; and
(v)an undated CFMEU form requesting delegates to provide information for the Union files (Delegates Information Form), and stating that Mr Blevin was located at ‘Saunders St Pyrmont’ (being the location of the Bakkante construction site), and that his employer was ‘Beljin Development’.
Resolution of the issue as to the locus standi of Mr Hadgkiss to bring the proceedings
Reference has been made at the commencement of these reasons to the circumstances whereby Mr Hadgkiss purported to exercise the powers and authority of the Employment Advocate, and whereby he assumed authority as a consequence to make the present application to the Court for orders stipulated by s 298U of the Act in respect of alleged contraventions of Part XA of the Act on the part of each of the respondents. The office of Employment Advocate is established by s 83BA of the Act. The functions of that office are set out in s 83BB(1), and in addition extend to any other functions given to the Employment Advocate by the Act. The authority of the Employment Advocate to make application to the Court for orders provided for by s 298U, pursuant to s 298T(2)(d), has been earlier referred to. No issue was raised as to Mr Hamberger’s appointment to the office of Employment Advocate at all material times.
By s 83BE(1)(a) of the Act, the Employment Advocate, by instrument in writing, may delegate any of the Employment Advocate’s powers or functions to a person who is appointed or employed by the Commonwealth. The instrument of appointment in favour of Mr Hadgkiss was tendered in evidence by the affidavit of Mr Copeland, an employee of the Department of Employment and Workplace Relations, to whom I have already referred in my earlier reasons for judgment in the present proceedings concerning the admissibility of certain documentary evidence said by the respondents to have been obtained unlawfully (Hadgkiss v Blevin and Others (2003) FCA 1167). No issue was raised as to the authenticity of that instrument.
As I have foreshadowed however, counsel for the respondents put in issue, in their respective defences, the authority of Mr Hadgkiss to bring the subject proceedings as applicant. It was thus submitted that ‘on its terms’, the instrument of 23 January 2003 (identified in [1] above) did not prove the appointment of Mr Hadgkiss as Head of the Interim Taskforce, and therefore he was not empowered to make the present application to the Court. There was no issue raised as to the authenticity of that instrument. The raising of this issue by the respondents presented a formidable task for the respondents, in that the respondents were required to dislodge the presumption of regularity implied in favour of the exercise of power and the doing of acts in the course of Mr Hadgkiss’s statutory duties (Minister for Natural Resources v NSW Aboriginal Land Council (1987) 9 NSWLR 154 at 164 per McHugh JA (as he then was). It is a presumption of fact, associated with the reasonable inference based on what ordinarily happens in the ordinary course of human affairs (McLean Brothers & Rigg Ltd v Grice (1906) 4 CLR 835 at 849 per Griffiths CJ).
The evidentiary material forming part of Exhibit A12 in the proceedings discloses the following matters and circumstances relating to the purported appointment of Mr Hadgkiss to the position of Head of the Interim Taskforce:
(i)the appointment of the applicant as an Assistant Commissioner of the Australian Federal Police on 23 December 1995;
(ii)the recommendations generally of a Commonwealth Public Service Committee (inclusive of Mr Boxall below referred to), made in October 2002, that Mr Hadgkiss, being the then National Manager of the National Crime Authority, be appointed to the position of Head of the Interim Taskforce into the Building and Construction Industry at SES Band 2 level;
(iii)the accompanying recommendation made by letter dated 22 October 2002 of Mr Boxall as Secretary of the Department of Employment and Workplace Relations, addressed to the Public Service Commissioner Mr Podger, as to the temporary transfer of Mr Hadgkiss to that position until at least 30 June 2003;
(iv)the further letter dated 24 October 2002 of Mr Boxall to the Acting Chairman of the National Crime Authority Mr Bradley, reading as follows (omitting formal parts):
‘As discussed with Mr John Lloyd, Mr Nigel Hadgkiss, who is a fixed term SES Band 2 employee of the National Crime Authority, has been selected for a temporary movement at the SES Band 2 level to head the Interim Building Taskforce within my department for the period 29 October 2002 to at least 30 June 2003.
I am seeking your formal agreement to the temporary movement of Mr Hadgkiss to my department and to his movement back to the National Crime Authority following the period of temporary movement.
I would like to thank you for your cooperation in relation to this matter.’
(v)the letter of response of the Public Service Commissioner Mr Podger of 24 October 2002 to Mr Boxall reading as follows:
‘Thank you for your letter of 22 October 2002 regarding the outcome of the selection exercise for the position of Head of the Interim Taskforce, which will be the movement at level of Mr Nigel Hadgkiss, a Senior Executive Band 2 employee in the National Crime Authority.
Having considered the information provided against requirements for selection at this level and the certification of the process by my representative on the selection advisory committee, I am satisfied that the selection exercise meets all requirements of the Act, Regulation, and the Commissioner’s Directions. Mr Yuile’s certification of the process is accordingly endorsed.
You may now take steps to effect the movement at level of Mr Hadgkiss under sections 25 and 26 of the Public Service Act 1999.’
(vi)the letter of response of the Acting Chairman of the National Crime Authority (Mr Bradley) of 25 October 2002 agreeing with ‘… the temporary secondment of Mr Hadgkiss as set out in your letter’;
(vii)the letter of the Human Resources Section of the Australian Crime Commissioner (Ms Caban) to the Department of Employment and Workplace Relations of 14 May 2003, containing the following:
‘Mr Nigel Hadgkiss is currently on a temporary movement to your organisation until 30 June 2003. Please advise whether you intend to request an extension of this temporary movement, or whether Mr Hadgkiss will return to the ACC on 1 July 2003.’
(viii)the further letter of Mr Boxall of the Department of Employment and Workplace Relations of 20 May 2003 containing the following:
‘Mr Nigel Hadgkiss, who is a fixed term SES Band 2 employee of the Australian Crime Commission, is currently on temporary movement to my department at the SES Band 2 level to head the Interim Building Taskforce until 30 June 2003.
I am seeking your formal agreement to extend Mr Hadgkiss’ temporary movement to my department until 30 June 2004 to continue in his role as Director of the Interim Building Taskforce and to his movement back to the Australian Crime Commission following the period of temporary movement.
Ms Caban of the Commission has written to the Department on 14 May 2003 on this matter.
I would like to thank you for your cooperation in relation to this matter.’
(iv)the letter of Mr Milroy as Chief Executive Officer of the Australian Crime Commission of 6 June 2003 containing the following:
‘I refer to your letter of 20 May 2003, seeking my agreement to extend Mr Nigel Hadgkiss temporary movement to your Department.
I agree to extend Mr Hadgkiss to 30 June 2004.’
The foregoing documentary material provides support for the validly and regularity of the appointment of Mr Hadgkiss, being material provided by the applicant per medium of Mr Copeland. There was no cross-examination of Mr Copeland undertaken on behalf of the respondents as to the authenticity and implementation of the proposals and recommendations contained or referred to in that material. In his concluding written submissions, counsel for the respondents conceded that ‘… it would be a contradiction of general human experience for the Commonwealth to fail to appoint a person to an office after preparing to do so…’. Nevertheless he pointed to the absence of evidence of any explanation from Mr Hadgkiss personally of his purported appointment, thereby supposedly giving rise to a Jones v Dunkel inference in favour of the respondents. I am unable to accept that any such explanation was required, at least by reason of the operation of the presumption of law to which I have earlier referred. The instrument of appointment having been proved, and Mr Hadgkiss’s public service qualifications to undertake the appointment having been demonstrated, the validity and operation of Mr Hadgkiss’s appointment at all material times lends assistance to the operation of the evidentiary presumption, if any further assistance be required. The absence of testimony from Mr Hadgkiss personally of his appointment, upon which the respondents purportedly relied, was of no significance.
The respondents’ purported withdrawal of their filed defences after the commencement of the hearing
On 21 October 2003, being the second day of the final hearing of the proceedings, the respondents filed a notice of motion for leave to withdraw their respective defences to the statement of claim which, as at that point in time, had been filed in Court. That application had been foreshadowed on the opening day of the hearing of the proceedings (20 October 2003). The grounds set out in par 3 of the accompanying affidavit in support of the respondents’ application read as follows:
‘(a)The Application being one for a civil penalty gives rise to a privilege against self-incrimination in relation to the First and Second Respondents.
(b)The effect of a Defence under the Federal Court Rules is to require the First and Second Respondents to admit matters which may incriminate them in relation to the Application for a civil penalty.
(c)In order to protect their specific right to not incriminate themselves, the First and Second Respondents should be allowed to withdraw their Defence to the Statement of Claim except where admissions have already been made.
(d)In order to protect the general right of the First and Second Respondents to not incriminate themselves, the Third Respondent should be allowed to withdraw its Defence to the Statement of Claim except for admission already made.’
The application of the respondents to withdraw their respective filed defences was argued on the following day (22 October 2003), the argument being preceded by written submissions, tendered on behalf of the respondents, containing the following outline:
‘The basis for the withdrawal is that the respondents are required under the Federal Court Rules to specifically plead material facts on which they rely to make out their defence. They are also deemed to have admitted any fact which they do not specifically deny (see Order 11 Rule 13). A general denial of facts is not sufficient to traverse an allegation (see Order 11 Rule 13(3). A party should admit facts which it know (sic) to be true. A party may not depart from his pleading to raise any allegation of fact, ground or claim (see Order 11 Rule 8).
It was submitted by the respondents that since the present application was for recovery of a civil penalty pursuant to s 298U of the Act, the respondents should not be required, directly or indirectly, to disclose information or documents which may assist in establishing liability to a penalty. The respondents cited the dictum of Deane J in Refrigerated Express Lines (A’asia) Pty Ltd v Australian Meat and Livestock Corporation (1979) 42 FLR 204 at 207-208, being dictum appearing in the context of his Honour’s review of earlier cases dealing with principles relating to the raising of an objection by a party to litigation to the discovery of documents and the provision of information, if the result thereof would be to provide evidence against that party which might be used to establish the liability of that party to a penalty. It was pointed out that the rule applied in relation to the making of orders as well as to the filing of statements in court. I was referred to Australian Competition and Consumer Commission v FFE Building Services Ltd [2003] FCAFC 132, where in the joint judgment of Emmett, Hely and Jacobson JJ at [14], the following appears, albeit relating to the filing of evidence:
‘By requiring an individual respondent, prior to the disclosure of an applicant’s case, to file statements of evidence proposed to be given by witnesses to be called by that respondent, such a respondent would be exposed to the risk that indirect or derivative evidence, being evidence obtained by using the material disclosed in the statement as a basis of investigation, could be tendered against the respondent. The provisional disclosure of information may set in train a process that may lead to the imposition of a penalty or may lead to the discovery of real evidence in support of the imposition of a penalty.’
As indicated, the imposition of a penalty is sought by the applicant in the present proceedings. It may be observed that the statutory limit prescribed by s 298U(a) (ante) is relatively speaking of a modest dimension, and in the present instance, doubtless substantially below the legal costs incurred by each party.
The respondents’ defences filed up to the time of commencement of the hearing of the proceedings were not of course required by the Federal Court Rules to be verified on oath. Counsel for the respondents submitted nevertheless that the pleading of an unverified defence ‘required by the Federal Court Rules to admit matters’ might conceivably serve to incriminate the respondents. It was submitted, at least on that footing, that the respondents were entitled to invoke the privilege against self-incrimination, and therefore in the present circumstances to withdraw their respective defences, albeit after the commencement of the hearing. Counsel described the privilege against self-incrimination as deeply ingrained in the general law, and subject to statute, as being also unqualified, and as extending to protection against indirect or derivative evidence (citing in that regard Reid v Howard (1975) 184 CLR 1 at 6 (Deane J)).
After protracted debate upon the implications of the respondents’ application for leave to withdraw their respective defences, the controversy was resolved upon the footing that the applicant would consent to the filing in Court on 23 October 2003 (by then the third day of the final hearing of the proceedings) of further amended defences of each of the respondents, the same containing inter alia the following admissions expressed to apply as at ‘all material times’:
(i)by all respondents, that the Union was an association of employees or an industrial association;
(ii)by Mr Blevin, that he was a member of the Union;
(iii)by Mr McGahan, that he was a representative and employee of the NSW Branch of the Union, but that he was not a representative, employee and officer of the Union;
(iv)by the Union, that Mr Blevin was a delegate, representative and member of the NSW Branch of the Union;
(v)by the Union, that Mr McGahan was a representative, employee and member of NSW Branch of the Union;
(vi)by all respondents, that Bakkante was an employer undertaking construction work at Saunders Street Pyrmont on a site known as the ‘Clifton Apartments Site’;
(vii)by Mr Blevin and the Union, (but Mr McGahan pleaded that he did not know) that Mr de los Reyes was not a member of the Union;
(viii)by Mr Blevin, that he had said to Mr de los Reyes that Mr de los Reyes was getting the benefits of an ‘EBA’ and conditions negotiated by the Union, and that he should consider joining the Union (that reference to ‘EBA’ was to an enterprise bargaining agreement);
(ix)by Mr Blevin, that he had dealt ‘with Bakkante on behalf of himself and other members of the State registered Union called the Construction Forestry Mining and Energy Union (NSW Branch)’; and
(x)by Mr McGahan, that he stated on an occasion that ‘if Mr de los Reyes did not have workers compensation insurance that he should not be working on the site’.
The course thus ultimately adopted by the parties rendered unnecessary my consideration of the implications of the reasons for decision of Gyles J in Alfred v Walter Construction Group Ltd [2003] FCA 993, in so far as that decision might have borne upon the controversy raised as to the filing of defences by trade unions and trade union officers, in circumstances of industrial disputation involving admissions having or tending to have penal criminal implications. I might add for completeness that since the hearing of the present proceedings, leave to appeal his Honour’s decision in Walter was refused by a Full Court comprising Wilcox, Moore and Marshall JJ ([2004] FCAFC 36).
The operation of the Briginshaw evidentiary test upon the resolution of the causes of action pleaded
This was a further issue raised by the respondents in the course of the final hearing, and in particular in final address. It has been established that the Briginshaw standard of proof may apply to proceedings for contravention of the Act, where the conduct alleged is of a serious nature. That view was expressed, for instance, by R D Nicholson J in the context of his Honour’s resolution of the issues involved in Maritime Union of Australia v Geraldton Port Authority (1999) 93 FCR 34 (‘MUA’), where the substantive allegation was a conspiracy to injure a trade union applicant by unlawful means. It is first perhaps appropriate to recall to mind what was said by Dixon J (as he then was) in Briginshaw v Briginshaw (1938) 60 CLR 336 at 362:
‘But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters “reasonable satisfaction” should not be produced by inexact proofs, indefinite testimony, or indirect inferences.’
More recently in Watson v Foxman (2000) 49 NSWLR 315 at 319, McLelland CJ in Eq observed in relation to satisfaction of the Briginshaw test as follows:
‘Each element of the cause of action must be proved to the reasonable satisfaction of the court, which means that the court must feel “an actual persuasion of its occurrence or existence”. Such satisfaction is “not… attained or established independently of the nature and consequence of the fact or facts to be proved” including the “seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding”: Helton v Allen (1940) 63 CLR 691 at 712.’
Where however the reverse onus provisions of s 298V apply in particular proceedings, an application of the Briginshaw standard may become more complex to articulate and to apply. I will therefore refer to authority relating to the operation of s 298V of the Act, as well as the published article on the subject written by Mr Jessup QC.
In NUW, the Briginshaw standard was applied by Einfeld J in circumstances where the Employment Advocate alleged that the Union and its organiser had encouraged or incited an employer to injure one of its employees, or to alter that employee’s position to his prejudice for a prohibited reason, because the employee was not and did not appear to intend to become a member of a trade union. At 481, his Honour said that it was unnecessary to plead the operation of s 298V of the Act, adding in that context the following observations:
(i)‘… there is no requirement to plead s 298V expressly in order to rely on its operation’;
(ii)‘The section is an evidential one, operational upon the sections in its Division once facts are alleged which bring an evidentiary provision such as this into operation…’;
(iii)‘… the relevant paragraphs of the amended statement of claim adequately alleged that conduct was done for a particular reason, after which the Advocate is entitled to rely on the s 298V presumption’;
(iv)‘Section 298V operates to alleviate the evidentiary difficulties that would otherwise be faced by a party seeking to prove the state of mind or motivation of the other party’.
Shortly prior to NUW, Merkel J in Australian Municipal, Administrative, Clerical & Services Union v Ansett Australia Ltd [2000] FCA 441 described the implications of the conclusions of R D Nicholson J in MUA as follows:
(i)if the applicant proves the conduct and alleges it was carried out for a proscribed reason, it is for the respondent to prove, on the balance of probabilities, that it was not motivated for an impermissible reason;
(ii)a reason is an impermissible reason if it is one of the operative reasons for the conduct;
(iii)to be an operative reason there must be a causal connection between the conduct and the proscribed reason relied upon by the applicant; and
(iv)whether the respondent was actuated by a prohibited reason, or reasons which included a prohibited reason, is a question of fact which will often involve questions of judgment and the characterisation of the employer’s reasons.
In the course of his article on the Onus of Proof in Proceedings Under Part XA of the [Act] (ante), Mr Jessup QC pointed out that s 298V, which has no materially similar precursor to be found in earlier industrial legislation, assumes that a relevant allegation has been made, and sets up a presumption that the respondent’s conduct was done for the reason or intent alleged, unless proved otherwise. The learned author thereafter observed at 203 as follows:
‘On one view, the applicant is under no obligation to prove the existence of facts which would provide a basis for the presumed reason. For instance, an applicant would not have to prove (or even allege) that an employee was a union member: it would be necessary only for the applicant to allege that the dismissal of the employee was done because he or she was a union member, leaving it to the respondent to disprove that allegation, one possible way of doing so being to prove that the employee never was a union member.
There are statements in the cases that would support such a construction of s 298V, although it must be said that that support comes more from the generality with which the terms of the section are paraphrased than from a consideration of the particular point.’
After then citing the Full Federal Court decisions in Davids Distribution Pty Ltd v National Union of Workers (1999) 91 FCR 463, and Greater Dandenong City Council v Australian Municipal, Clerical and Services Union (2001) 184 ALR 1 as exemplifying his foregoing observations, the author observed that the only judgment of the Federal Court, at the time of his published article, in which the question as to what was needed to be proved, by way of existing facts in order to provide a basis for the operation of the presumed reason, was that of Branson J given in Construction, Forestry, Mining and Energy Union v Coal and Allied Operations Pty Ltd ]1999] FCA 1531 at [161]-[162], the material segment whereof reading as follows:
‘I have concluded… that [the employee] did not relevantly participate in proceedings under an industrial law within the meaning of s 298L(1)(j). Section 298V of the Act does not, in my view, allow the applicant to circumvent that finding. Rather it is to be construed as an aid to proof of the intent or reason of the respondent which motivated, or formed part of the motivation for, the respondent’s conduct. It may fairly be presumed that the section is intended to alleviate the difficulties of proof by one party of the state of mind or motivation of another… The impact of s 298V, in my view, is simply to alleviate the evidentiary difficulty facing the applicant of providing proof of the intent or reason which motivated, or formed part of the motivation for, the respondent’s conduct following the absence of the employee from work.’
The conclusion of the learned author was to the effect that unless s 298V is to be treated as having introduced a significant change in the law, and one which went unannounced in the Minister’s second reading speech and the explanatory memorandum, the construction of s 298V enunciated by Branson J, as set out above, should be adopted, with the result that, as in the past, an applicant must still prove the existence of the objective facts which provide the basis for the reason for which the respondent is alleged to have acted. In other words, as Mr Jessup QC proceeded to explain in his Article at p 205, ‘[i]t is not that the applicant’s allegation is prima facie evidence of the matter alleged; it is that the issue is presumed determined in favour of the applicant, unless the respondent proves otherwise’.
The foregoing conclusions readily accommodate the principles of construction enunciated subsequently to the publication of Mr Jessup’s Article in NUW and Ansett which I have cited.
The constituent basis of the Union and of the respective positions held by Messrs Blevin and McGahan in relation to the Union – whether the proceedings were validly constituted against the Union
As I have foreshadowed, counsel for the respondents submitted that in so far as concerns the conduct of Messrs Blevin and McGahan complained of, the third respondent, to whom I have been referring as the Union, should be constituently distinguished, at least in the context of the issues the subject otherwise of the present proceedings, from what he described as the ‘State Union’, and further that the conduct complained of on the part of Messrs Blevin and McGahan, if it in fact occurred, which was denied, constituted conduct attributable to the State Union alone, and to Messrs Blevin and McGahan as purportedly acting on behalf of and as representatives of the State Union alone. In that regard, counsel for the respondents said in his written submissions: ‘It is conceded for the purposes of this proceeding that action in breach of s 298P(3) by either of the first two respondents is action of the third’, but that ‘Simply put it is submitted that no such action exists’. Counsel for the respondents explained ‘Nevertheless there are some functions that would normally be carried out by the first two respondents [which] cannot be carried out by the third respondent. This is simply because the third respondent does not have the legal power to perform a number of functions under the industrial legislation of NSW’. He further explained his contention in the following way:
‘By virtue of the federal system, industrial associations may be registered both under the state system of registration under the NSW Industrial Relations Act, and under the Commonwealth system of registration under the Commonwealth Workplace Relations Act. The effect of this is that the state registered association (the state union) and the commonwealth registered union (the commonwealth union), depending upon their rules, may have different membership, different officers and different objects. Each will have industrial instruments and certified agreements that are different in content and scope. Most importantly, some functions are only exercisable by one organisation.’
The submission did not explicitly state that what was referred to as ‘the commonwealth union’ and ‘the state union’ in the above submission were different legal entities.
In order to resolve the contentions put forward by the respondents’ counsel as summarised above, I shall describe as the ‘Federal Union’ the CFMEU entity whose Rules are filed in the Australian Industry Registry (Exhibit A3), and I shall describe as the ‘State Union’ the CFMEU entity whose Rules are filed in the Industrial Registry of the State Industrial Relations Court of New South Wales (Exhibit R7). The respondents’ contention, as I have foreshadowed, was that the Federal and State Unions are separate legal entities, and that the conduct attributable to Messrs Blevin and McGahan took place or was undertaken in their capacity as representatives of the State Union and not of the Federal Union. Counsel for the respondents explained that ‘… both bodies are separate, separate as a matter of law and as a matter of fact’, though the constituent basis for that assertion was not explained in any detail. The resolution of the issue is complicated by the circumstance that the words ‘NSW Branch’ are sometimes added to the designation of the Construction Forestry Mining and Energy Union in official documentation in evidence.
Examples of the State Union being discretely invested with specific powers in a number of areas under NSW State legislation were said by the respondents, in their written submissions, to be as follows:
(i) the authorising of officers: s 299 of the Industrial Relations Act 1996 (NSW);
(ii)the right to inspect workers compensation documents : s 163A of the Workers Compensation Act 1987 (NSW);
(iii)the right to enter the premises for occupational health and safety reasons: s 77 of the Occupations Health and Safety Act 2000 (NSW);
(iv)the right to enter and inspect wage records: s 298 of the Industrial Relation Act 1996 (NSW);
(v)the right to prosecute for breaches of State industrial legislation : s 357 of the Industrial Relations Act1996 (NSW); and
(vi)the right to enter workplaces to discuss matters with employees : s 297 of the Industrial Relations Act 1996 (NSW).
Counsel for the respondents pointed out that the State Union was party to certain State Awards relating to the building industry, including the Building and Construction Industry (State Award). It was further said that the latter award operated as a ‘common rule’ award, meaning that the terms of that Award apply to all classifications of work set out in clause 4 thereof, and subject to the so-called Area Incidence and Duration clause, apply to clause 6 thereof, unless a Federal Award, or a Federal or State Enterprise Agreement apply to the employment of any particular employees. That State Award was said to be different to the National Building and Construction Industry Award 2000 (exhibit A11 in the proceedings), because that Federal Award was not a ‘common rule’ award which applies to all employers in the industry, which meant that in order for the Federal Award to apply to the employment of employees, an employer must be a party to the Federal Award, or be a member of an employer organisation that is a party to the Federal Award, such as the Master Builders Association. It followed therefore, so the respondents’ submission continued, that whilst the employees of a principal contractor, were ‘covered’ by the Federal Award, where the contractor was a member of the Master Builders Association privy to the Federal Award, there could have been subcontractors whose employees were covered by the State Award. No such subcontractors engaged on the subject site were specifically identified in the respondents’ submissions.
The respondents pointed to a number of asserted differences in the terms of the respective Federal and State Awards, including, ‘but… not limited to’, nine examples. In none of those examples was it explained however why the same involved directly analogous instances to circumstances appertaining to the Federal and State Unions respectively.
As I have foreshadowed, tendered by the applicant into evidence as Exhibit A3 are the ‘Rules of the Construction, Forestry, Mining and Energy Union’, duly certified under the seal of the Australian Industrial Registry on 21 October 2003 to be a true and correct copy of the original Rules as at 3 February 2002. Those Federal Rules are lengthy and complex in scope. Clause 2 stipulates that ‘the Union shall consist of an unlimited number of persons whether male or female (1) employed in, usually employed in, or qualified to be and desirous of being employed in or seeking to be employed in or in connection with the industry or industries, and/or occupations, and/or calling, and/or vocations, and/or industrial pursuits of: and/or (2) who otherwise than as employees or employers, follow an occupation in or in connection with the industry or industries of: and/or (3) who, otherwise than as employees or employers, are engaged in the industrial pursuit or pursuits of’; thereafter follows numerous descriptions of what may be described as building industry tradesmen engaged or employed in industrial pursuits.
Attention was drawn by the applicant to Rule 2(B)(1) of the Federal Rules in particular, appearing on page 6 of Exhibit A3, the same purportedly relating to ‘workers (other than a tradesperson) engaged on any work in or in connection with or incidental to the erection, repair, renovation, maintenance, ornamentation, alteration, removal or demolition of any building.’ Branches of the Federal Union in various Australian States, including the State of New South Wales Branch, were identified. It is apparent that Mr de los Reyes became eligible and qualified, by virtue of those Rules, to become a member of the Federal Union, once he ceased his involvement in cleaning work for Phoenix, and undertook building and construction work, on the Clifton Apartments site, for Bakkante. In the context of that cleaning work, he was a member of the Miscellaneous Workers Union, and indeed remained so throughout the whole of the period of controversy.
Additionally adduced into evidence by the applicant, by way of annexures to the (second) affidavit of Mr Jenkins sworn 14 April 2003 (he being the Acting Deputy Industrial Registrar of the Australian Industrial Registry purportedly appointed pursuant to s 77 of the Federal Act), were documents relating to the Federal Union. Mr Jenkins had the care, custody and control of records held by that Registry’s Sydney office at the times material to the present proceedings. Those documents encompass inter alia the Federal Union’s ‘Construction and General Division, NSW Divisional Branch’, as well as other State Divisional Branches, and also include the certificate of registration of the Federal Union, issued on 11 September 1962 by the Industrial Registrar under the auspices of the federal precursor legislation Conciliation and Arbitration Act 1904 (Cth). They further include the Rules of the Federal Union’s Construction and General Division Branches, in force as at 18 July 2002. That instrument (which is annexure BJ-2 to Mr Jenkins Affidavit) is not the same as the Rules of the Construction, Forestry, Mining and Energy Union (identified earlier as Exhibit A3). Also tendered into evidence by Mr Jenkins’ affidavit was a list of ‘Office Bearers of the Federal Union’s Construction and General Division, New South Wales Divisional Branch’ as at 2 January 2002, duly lodged in the Industrial Registry, which included reference to Mr McGahan as a then branch organiser, and to Mr Blevin as a then branch council delegate. Mr Jenkins testified in his affidavit concerning the function of the Registrar in issuing permits for entry and inspection by trade union organisations, pursuant to Division 11A of Part IX of the Federal Act. Mr Jenkins was not cross-examined upon the content of his two affidavits made on behalf of the applicant in the proceedings.
After referring to the provisions of s 285A(1) of the Federal Act concerning the grant of permits for the entry and inspection of premises etc by ‘organisations’, pursuant to Part IX Division 11A thereof, Mr Jenkins additionally testified by affidavit as to the practice of issuing permits pursuant to that sub-section, at the request of the Federal Union’s Construction and General Division, NSW Divisional Branch, and to the following official information provided to the Registry:
‘· Joseph McGAHAN – Permit Number R20388/00, issued on 25 February 2000, with an expiry date of 24 February 2003, as an employee of the Branch. No application for a further permit has been made to date.
· David GLASS – Permit Number R20381/00, issued on 25 February 2000, with an expiry date of 24 February 2003, as an employee of the Branch. A further permit Number R2003/453 was issued on 24 February 2003 with an expiry date of 23 February 2006.
· David BLEVIN – There are no records held indicating this person has been issued with a permit.’
Tendered additionally by the applicant as Exhibit A13 was a further bundle of documents produced to the Court by the Construction and General Division of the Federal Union, comprising (inter alia) the following:
(i)an undated document headed ‘Attention all Delegates’, purportedly completed by Mr Blevin in his own handwriting at the time he was earlier employed by ‘Fletchers’ of ‘Pyrmont Street’; at the foot thereof appears the words ‘Registered under Federal & State Industrial Relations Acts’, and Mr Blevin’s designation as ‘Site Safety Representative’; the abovementioned Mr David Glass (‘Mr Glass’), an organiser of the Union who gave evidence in the proceedings on behalf of the respondents, was stated on the form to be the ‘CFMEU Organiser for your Site’;
(ii)a further undated document on the same printed form as (i) above, bearing a fax date 20 August 2002, again purportedly completed by Mr Blevin in his own handwriting, by this time showing, following a question mark, the words ‘Beljin (sic) Development’, as the ‘employer’ located at Saunders Street Pyrmont, and Mr Blevin again as ‘Site Safety Representative’, and Mr Glass as ‘CFMEU Organiser for your Site’; as earlier mentioned, Belijan was the holding company of Bakkante;
(iii)letter dated 10 October 2000 from the Australian Electoral Commission addressed to the CFMEU Construction & General Division (NSW Divisional Branch), and disclosing Mr Blevin as a ‘Divisional Branch Council Member – Sydney Zone New South Wales Divisional Branch’, and Mr McGahan as a New South Wales Divisional Branch Organiser;
(iv)a further CFMEU Construction & General Division (NSW Divisional Branch) document bearing date 8 October 2002 showing both Mr Glass and Mr McGahan as part of the then ‘current list of elected and temporary organisers engaged by [the Branch]’;
(v)a CFMEU ‘Personnel Management Record’ dated 11 March 2002 relating to Mr McGahan and purportedly bearing his signature, together with a ‘tax file number declaration’ of the same date showing as his then employer ‘CFMEU Construction & General, New South Wales Divisions Branch’; and
(vi)Mr McGahan’s ‘Authority to Enter Premises’ dated 19 August 1999 issued by the Industrial Registrar pursuant to the Industrial Relations Act 1996 (NSW), and associated official correspondence.
The respondents for their part tendered into evidence a lengthy document headed ‘CFMEU – RULES’ (Exhibit R7), clause 1 whereof stating that ‘The name of the Union shall be the ‘Construction, Forestry, Mining and Energy Union (New South Wales Branch)’. The susceptibility for at least confusion between that designation of the State Union, and that of the Federal Union, may be readily appreciated. Those rules describe in detail the persons or entities, being employers and employees, who are qualified to be members of what I have been referring to for convenience of identification as the State Union. By Clause 12 of the principal Rules forming part of that document, the supreme governing body is stipulated to be ‘the State Conference convened every two (2) years’. Attached to that document were the ‘CFMEU-NSW Branch Construction and General Division Rules’, and followed by the ‘CFMEU (NSW Branch) Mining and Energy Division’ Rules, followed further by the Rules of various Divisions of ‘CFMEU (NSW) Branch’. The respondents also tendered into evidence the Building and Construction Industry (State) Award filed in the Industrial Relation Commission of New South Wales on 30 June 2003, which was gazetted on 3 October 2003 (Exhibit R6), to which reference has already been made. The contents of the latter document are devoted, at least for the most part, to salary and leave entitlements applicable to the State of New South Wales. The respondents did not undertake the task of summarising the subject and matters addressed by the Federal Rules on the one hand, and those of the State Rules on the other.
The significance to the issue as to parties purportedly raised by the respondents falling for resolution in the proceedings, which counsel for the respondents sought to draw from those constituent documents was definitively unclear. Moreover the following concessions were made in the written submissions of the respondents as follows:
‘It is conceded that the first and second respondents are officers (but only in the extended definition that includes representatives) and members of an industrial association and that industrial association is the third respondent. McGahan was not an officer in the sense of an “elected official” having resigned his position on January 2002 (See Exhibit A13). It is conceded that Blevin was an elected officer of the third respondent being a councillor representative for the Sydney Zone in the Divisional Branch.’
Those concessions provided a seemingly sufficient prima facie basis for the conclusion asserted by the applicant to the effect that the conduct of the first and second respondents complained of was relevantly attributable to the third respondent as the Federal Union, whether or not that conduct was also attributable to the State Union. No judicial or legislative authority was cited by counsel for the respondents for the respondents’ proposition to the effect that the Federal and State Unions were different legal entities, such that the conduct of the first and second respondents complained of was attributable only to the latter. No challenge was ever mounted to this Court’s jurisdiction to resolve all issues purportedly arising in the proceedings.
The applicant relied for its part upon the evidence of Mr Jenkins, which I have earlier summarised, and the documentary material which Mr Jenkins identified in the course of providing that evidence, being evidence unchallenged by any cross-examination on behalf of the respondents (indeed Mr Jenkins was not cross-examined on his affidavit at all), and also the additional material tendered by the applicant as Exhibit A13, as prima facie evidence of attribution of the conduct, both of Mr Blevin and Mr McGahan, to the Federal Union as the third respondent. In the light of that material tendered by the applicant in chief which I have reviewed, what I would describe for convenience as the evidentiary onus devolved upon the respondents to demonstrate why it was that the conduct complained of in the proceedings on the part of the first and second respondents was not attributable to the third respondent, that is to say, to the Federal Union. The prima facie inference open to be drawn in my opinion, based on the documentary evidence which I have identified in these reasons, is that the conduct of each of Mr Blevin and Mr McGahan complained of in the proceedings should be attributed to the Federal Union, assuming the State Union is distinguishable from the Federal Union as a legal entity. The constituent distinction sought to be raised by the respondents in rebuttal of that inference, which was inadequately pleaded in the first place, was not in my opinion satisfactorily explained or rationalised in the respondents’ submissions, whether orally or in writing.
In the circumstances it becomes in my view unnecessary for me to additionally examine the provisions of the National Building and Construction Industry (State) Award gazetted on 3 October 2003. The facts are that Mr de los Reyes’ employment categorisation for industrial purposes was that of construction level 1 (CW1), to which the National Building and Construction Industry Award 2000, being a Federal Award, duly applied. That was because Bakkante was a member of the Master Builders Association, being an employer respondent to the Federal Award. Nevertheless I will record certain matters to which counsel for the applicant additionally drew my attention.
Clause 18.1.2 on pages 34 and 35 of the Federal Award contains the classification ‘labourers’, which includes ‘builders labourers other than as specified in classification 1-3 herein’. That classification applies in relation to work undertaken (inter alia) in the State of New South Wales, so far as concerns the employment of persons as builders’ labourers engaged in any building work : see clause 6.1.2(a) on page 21. The evidence disclosed that Mr de los Reyes, in the events which happened in terms of his construction type activities undertaken on the site, that is, activities subsequent to the preceding part time cleaning work earlier undertaken by him for his family company Phoenix, became classified as a builder’s labourer.
Clause 19 of the Federal Award, which appears to have originated against the background of restructuring which had previously taken place in the building and construction industry, provides for a ‘new entrant classification’ (clause 19.2.7 at page 48), identified above. The CW1 classification earlier mentioned included builders labourer group 4 – see clause 19.3.1(a)(iv) on page 51. Reference to ‘Labourer (4) – Builders Labourer (other than as specified herein)’ appears on page 36 of the Federal Award.
The respondents sought to meet those factors by tendering the Building and Construction Industry (State) Award gazetted on 3 October 2003 (‘the State Award’) (Exhibit R6). In order to further endeavour to demonstrate the relevance of that State Award to the constituent issues raised by the respondents, the respondents sought to rely upon certain documentation concerning the activities of Independent Waterproofers Pty Ltd (‘Waterproofers’), being a company unrelated corporately to Bakkante, though at some stage engaged as a subcontractor on the Clifton Apartments or Bakkante building site. Notification by Waterproofers of a dispute dated 13 February 2003 was lodged with the New South Wales Industrial Registrar, being a dispute which arose out of the apparent refusal by the managing director of Waterproofers to allow time and wages books to be inspected by Mr McGahan and Mr Glass. The position initially adopted by Waterproofers before the State Industrial Court was apparently to the effect that Mr Blevin did not have authority to inspect wages books or otherwise to make certain demands previously pursued on behalf of the Union some months after the resumption of work on the subject building site in Pyrmont, following the financial collapse of an earlier head contractor for the building development. Waterproofers was apparently a member of the Master Builders Association of New South Wales (as is the case of course also of Bakkante), a matter which subsequently prompted the contention of Waterproofers to the State Industrial Court that it had mistakenly notified that particular dispute arising with CFMEU (using that description neutrally) to the New South Wales Industrial Registrar. As matters transpired by 13 March 2003, the New South Wales Industrial Commission was notified by Waterproofers that the proceedings so commenced by it were to be discontinued. There was no finding made by the Commission to the effect that it was the State Union, to the exclusion of the Federal Court, which had jurisdiction in relation to the Waterproofers’ notified dispute. The Waterproofers proceedings thus provided no assistance to the respondents’ case, contrary to the position they adopted at the hearing.
My conclusion is that the position adopted by the applicant, to the effect that the Federal Award did operate to regulate the terms and conditions of employment of building and construction employees of Bakkante at the Clifton Apartments site, including the later employment of Mr de los Reyes as a construction worker, is correct, and that the proceedings have been correctly structured accordingly. I therefore uphold the consequential submission of the applicant that this Court has appropriate jurisdiction to entertain the present application of the Employment Advocate’s delegate, being an application brought against the respondents on the footing of the third respondent’s status as a trade union having its principal constituent rules registered with the Australian Industrial Registry. If I be wrong in that conclusion, I would be alternatively of the view that on my reading of the documentary material of constituent or tending to constituent nature, the Federal Union and the State Union are subject to a unified administration, such that in the present case, even if they are constituently distinguishable for reasons not adequately demonstrated, the conduct of Messrs Blevin and McGahan is relevantly attributable to both trade unions.
Observations upon the nature of the evidence adduced by the applicant of a testimonial nature which falls for resolution of the principal issue arising in the proceedings
I have found it necessary and appropriate to reproduce below a substantial amount of the affidavit and viva voce testimonies adduced by the applicant because as will later appear, those testimonies were contradicted by the three witnesses for the respondents, two of whom were the first and second respondents to the application. The nature and context of those contradictions requires detailed narration and explanation. The judgment which I am required to make is whether the applicant’s witnesses or the respondents’ witnesses gave truthful and accurate evidence to the Court, especially concerning the controversial coffee shop meeting, and certain preceding and following conversation and events which tend to throw light on the veracity of that conversational evidence. It is a judgment which must be made in the light of the authorities which I have earlier cited as to the burden of proof which the applicant is required to discharge, and in the light of the substantial body of evidentiary material which preceded that occasion, and of the concluding events and circumstances of the dispute.
As will have been appreciated, the Court is not assisted, for the purpose of reaching the Court’s conclusions upon the accuracy and truthfulness of the conflicting evidentiary accounts of the respective parties, by the existence of documentary evidence in the form of correspondence or, contemporaneous or virtually contemporaneous notes of the conversations involved. It is largely for that reason that I have found it necessary and appropriate, as I have just foreshadowed, to reproduce or summarise a great deal of the affidavit evidence of the parties, as well as indicate the extent of such additions or modifications thereto as emerged in the course of cross-examination. It is only by so doing that an appreciation can be gained as to the credibility of the respective evidentiary accounts of the parties. I should say at once that the witnesses for the opposing parties to this litigation adhered essentially to their respective affidavit accounts in the course of cross-examination. I must therefore undertake the task of determining which of the testimonial accounts of a number of controversial conversations should be accepted, in accordance with the principles as to the appropriate onus of proof which I have earlier digested from authorities of this Court. Only by reproducing much of the testimonial evidence given may an appreciation be gained of what should be found by the Court to have taken place in relation to the critical areas of controversy.
The events involving the respondents giving rise to and constituting the matters complained of by the applicant – the testimonial evidence adduced from the applicant’s witnesses
I shall now describe in more detail the circumstances giving rise to the contentious conduct of the respondents complained of by the applicant, as appears mainly from the evidence tendered by the applicant, chiefly by affidavit.
At the request of Mr McGahan, (of course the second respondent), and of Mr Glass, in their respective capacities as organisers of the Union, Bakkante undertook the employment of Mr Blevin on 1 August 2002 as a general labourer on the Clifton Apartments/Bakkante construction site located in Saunders Street Pyrmont, to which of course reference has already been made. According to Mr Blevin, he had earlier met with Ricardo Zoratto (‘Mr Zoratto’), Bakkante’s site manager and a witness for the applicant in the proceedings. Mr Blevin claimed to have said to Mr Zoratto, in the presence of Mr Glass, ‘We need someone to look after safety and a union delegate on the job’. Construction work on the development of the site had commenced in May 2001, and the completion date had been originally programmed for 13 September 2002. The preceding head building contractor for the development had been Lecan Constructions Pty Ltd (‘Lecan’), a company unrelated to Bakkante. It was a substantial project, the original contract price being in the order of $12 million. Sub-contractors engaged by Lecan ceased on-site work in early June 2002, in the context of financial difficulties involving substantial default by Lecan in payment of its subcontractors. Mr McGahan became ‘heavily involved in sorting out the Lecan problems on site’, to cite Mr Ben Yee’s evidence. In the upshot, Belijan (the building developer corporately related to Bakkante earlier identified) appears to have assumed responsibility for payment of arrears owing by Lecan to its subcontractors for work undertaken from 1 May 2002. The Union apparently played a significant role in ensuring payment was made to sub-contractors unpaid by Lecan. When on-site work resumed on 19 June 2002, Bakkante assumed the management of payments thereafter to be made to on-site sub-contractors, and the functions otherwise of head contractor in the place of Lecan, which had submitted in the meantime to insolvent administration. It appears that Bakkante paid its employees rates of pay according to the Enterprise Bargaining Award (‘EBA’), notwithstanding that Bakkante did not have an EBA with the Union, and notwithstanding that as a member of the Master Builders Association (‘MBA’), Bakkante would normally have paid its workers pursuant to the National Building and Construction Award (Federal) 1990, to which reference has already been made in these reasons. At least from about that time, Mr Yee was engaged operationally on the site on behalf of Bakkante on virtually a daily basis, as Bakkante’s principal officer and representative. Shortly after Mr Blevin had commenced employment for Bakkante on 1 August 2002, he was elected as the site delegate of the Union, and Bakkante was so notified. Mr Blevin had been previously the Union’s site delegate in the context of his employment on at least two other building sites in Sydney.
Mr Glass spoke in his affidavit of receiving a telephone call from Mr Blevin ‘about Mr de los Reyes’ presence on site’, recalling in particular the information conveyed to him that ‘…Mr de los Reyes was there as a contractor but did not hold relevant documentation such as evidence of a workers compensation and public liability policy’, being information said by Mr Glass to have been requested by Mr Blevin, but not subsequently provided. Mr Glass expressed the view in his affidavit that Mr de los Reyes was mistaken to the extent that he did not need a workers compensation policy, and asserted that Mr de los Reyes had been ‘on the site for three months without such a policy’. He did not detail, much less purport to rationalise, any viable basis in law for those generalised, if not also somewhat vaguely framed, assertions on his part.
Mr Glass next addressed the affidavit account of the critical coffee shop meeting given by Mr de los Reyes’ affidavit, and testified as follows:
(i)‘the discussion at the meeting was about Mr de los Reyes having workers compensation insurance coverage’, the Union’s concern being ‘whether or not he was a direct employee or a sub-contractor, and if he was a sub-contractor why he did not have the relevant paperwork which sub-contractors require to comply with relevant OHS and workers compensation law’; (I interpose to record that Mr Glass did not specify precisely what he meant by ‘relevant paperwork’, nor did he identify what he meant by ‘relevant OHS’, or which particular provisions of the ‘workers compensation law’ he had in mind as being the subject of need for compliance by Mr de los Reyes); and
(ii)Mr McGahan did not say at the coffee shop meeting to Mr de los Reyes ‘you know the rules in the building industry. You have to join the Union’.
Mr Glass reviewed the principal affidavit of Mr Yee at some length. I will refer below mainly to those aspects of that review which involved circumstances of potential relevance to the issues arising in the proceedings. Much of what Mr Glass set out in his affidavit had seemingly insignificant bearing upon the critical issues which I am ultimately required to resolve.
Mr Glass disclosed that he originally asked Mr Yee to employ Mr Blevin, and further that he said to Mr Yee, ‘something like’ to the effect that the advantage to Bakkante, by so doing, was that Mr Blevin would be on hand to resolve site issues ‘proactively’, and so that ‘there would not be any problems on site’; he denied that he was ‘insistent’ that Bakkante should employ Mr Blevin; Mr Glass gave detailed evidence as to his involvement on the Bakkante site in the wake of the financial collapse of Lecan, and the adverse financial consequences thereby to subcontractors and their employees, which was peripheral to the issues I am required to resolve.
Addressing then Mr Yee’s account of the controversial coffee shop meeting, Mr Glass responded in his affidavit as follows:
(i)he agreed that Mr McGahan asked questions about the status of Mr de los Reyes on the site, that is, as to whether or not he was a director of his own company or a direct employee thereof, and whether he held the required workers compensation and public liability insurances in respect of the company’s activities;
(ii)he asserted that Mr de los Reyes ‘was called to the meeting because of Mr Yee’s inability to answer Mr McGahan’s questions’;
(iii)he asserted that Mr McGahan ‘did not take out a white form’ (ie what has been identified already as a CFMEU membership application form), and that ‘[t]here was no mention during the conversation of union membership’;
(iv)he further asserted that ‘we never stopped Mr de los Reyes from working’, but that ‘we did ask for proof that he had the relevant insurances and could provide time and wage books’; and
(v)he agreed that ‘Mr Yee told us that Mr de los Reyes was an employee’, but added ‘neither Mr Yee or Mr de los Reyes had provided any evidence to confirm that Mr de los Reyes was an employee or a subcontractor’, and further that ‘Mr McGahan and I sought proof of Mr de los Reyes’ status either way… [w]e did not say at any time he was unable to work’.
Of course as already indicated, practical proof by way of payment of wages or salary was not by that time feasible, given that Mr de los Reyes’ first week’s payment of wages was yet to become payable.
Mr Glass accepted that he subsequently attended the construction site, though he could not remember the exact date, and said that Mr Yee then gave him a copy of Mr de los Reyes’ tax declaration form, and also so-called C+BUS and ACIRT and Cover Force documents, and that Mr Yee did not mention anything to him at that later time about union fees; he denied saying to Mr Yee on that later occasion ‘I don’t see any problem with Rodney returning to work’, and asserted that what he next did was to look at those documents, and to say words to the effect ‘[t]hat looks fine’, and then to leave the construction site. Mr Glass exhibited to his affidavit a copy of a form of ‘tax file number declaration’, purportedly signed by Mr de los Reyes and bearing date 20 November 2002, and the signature of a so-called ‘payer’ bearing date 25 November 2002, being a copy which was apparently retained by Mr Glass; Mr Glass thereafter repeated that he ‘never spoke to Mr Yee about Mr de los Reyes joining the CFMEU’.
Further in his affidavit evidence, Mr Glass addressed Mr Zoratto’s affidavit, and again denied that at the coffee shop meeting, Mr McGahan produced ‘a white card’, that is to say, a CFMEU application card.
Lastly in his affidavit, Mr Glass exhibited thereto, without any further observation on his part, a letter dated 23 May 2003 from Mr Yee to Mr Blevin, being thus written about six months after Mr de los Reyes had joined the Union. I set out the text of the letter below, given that the legal representatives of the Union perceived the same to contain some admissions of relevance, which I take leave at least to doubt. I do not think that I can ultimately draw any conclusions one way of the other from the contents of the letter:
‘I am writing to thank you for your short service in our company. Although we not have gotten along in the past, I believe that over the recent months we have proven that we can have mutual respect for one another and work together.
I have appreciated your working manner (when you are not doing union related work) and your candid attitude and honesty in relation to our company property. You certainly have more respect for our tools and equipment than our other employees.
In experiencing the things that I have in my short experience with the union and also working in [the] city I have learnt a lot. I have certainly learnt that there is a role for the union because of the way that some employers conduct themselves. I may take issue with some of the levels of pay, but that is understandable being from a business background.
I believe that if more employers were fair and honest with their employees there would not be a need for an active union. I also believe that the union organisation can be fairer in the way they conduct themselves especially with their members, a vote is [a] vote and it should be cast by the individual based on their attitude, not by coercion by either union or employer. I have tried my best to maintain this in my dealings.
I for one believe that you are a person of principal (sic) and one should always try to conduct themselves in such a way. I believe (but I may be wrong) that you bark for the union but that you are a reasonable person outside your union frame.
I was wrong to say (at the start) that the only reason I employed you was because the union said so. It was true but I should have reserved my comments and seen how you could perform before I judged you. Maybe things would have been much different.
In summary please leave thinking that I do respect you although you have put me through much personal anguish and anxiety. Whatever should happen in the future know that it was circumstances that led towards the events and on time will se [sic] how it plays out.
I wish you the best in your future. There is no doubt that we will meet again. I hope it will be on better terms. I have not had a chance to get that ‘going away present’ for you but you will get it in the mail. Nothing sinister just a book that I think you should read.
Take care and don’t be too hard on the next chap.’
In the course of precisely framed cross-examination by senior counsel for the applicant as to what occurred at the critical coffee shop meeting in Pyrmont in the vicinity of the Bakkante construction site, Mr Glass provided the following responses:
(i)he and Mr McGahan journeyed from the Union’s city office located in Wallworth Avenue to the Pyrmont coffee shop, pursuant to Mr Blevin’s request ‘… to come down to the site to, if you could, follow through and get the relevant paperwork off the contractor in relation to his workers’ compensation’, that request was made, implicitly by telephone call from Mr Blevin, on the same day as the coffee shop meeting occurred; he did not indicate that any prior notice was given to Bakkante to assemble in advance any such ‘paperwork’;
(ii)he denied that Mr McGahan said to Mr de los Reyes at the meeting ‘you know the rules in the building industry, you have to join the union’;
(iii)he further denied ‘that there was discussion about Mr de los Reyes not being a member of the union…’, and in particular, that Mr McGahan said words to the effect that ‘if you want to work in the construction industry you have to join the union’;
(iv)in response as to whether Mr McGahan said to Mr de los Reyes ‘well, if this is going to be the case then the axe is going to go down’, he derived that there was any conversation about the union ‘whatsoever’;
(v)there ‘didn’t happen any conduct or action of Mr Gahan of handling a CFMEU white union membership application form, and of his stating to Mr de los Reyes ‘why don’t you join the union’, and of Mr de los Reyes replying in that context ‘I’m already in another union and I’ve been there before, I don’t really want to join the union’, and of Mr McGahan then saying ‘Okay, if you don’t want to join the union that’s fine…’;
(vi)‘It was more to do with Mr de los Reyes whether he was a contractor or a direct employee of the builder. That’s what it was about’;
(vii)It was ‘not at all’ the purpose of the coffee shop meeting ‘… to deal with the issue of Mr de los Reyes’ non-membership of the union’; and
(viii)‘raising the question of Mr de los Reyes workers’ compensation and public liability and the like’ was not ‘to place pressure on him to join the union…’ or to ‘place pressure on Mr Yee to remove Mr de los Reyes if he didn’t join the union’.
Once again it may be observed, if the purposes of the journey from the Union offices to the vicinity of the Bakkante construction site were to obtain ‘the relevant paperwork’, why was prior notice to that effect not apparently given to Mr Yee on behalf of the Union?
Mr Glass stated or disclosed the following matters in the course of his cross-examination, he being the last of the respondents’ to be cross-examined:
(i)he had responsibility for the Pyrmont area and the subject site in particular, and that he and Mr McGahan worked together;
(ii)on the occasion in question, Mr Blevin ‘… asked us to come down to the site… follow through and get the relevant paperwork off the contractor in relation to workers compensation’;
(iii)he denied ‘definitely’ that Mr McGahan said at the meeting ‘You know the rules in the building industry; you have to join the union’;
(iv)he further denied that ‘there was discussion about Mr de los Reyes not being a member of the union’, or that such ‘was part of the concern that Mr Blevin had raised with you when he contracted you’; and
(v)he further denied having ‘had any discussion with Mr Blevin in the recent past about anything to do with this case’.
Particularly in relation to that latter question, Mr Glass’s answer was in my judgment clearly beyond credulity.
Mr Glass thereafter gave the following further evidence under cross-examination:
(i)he denied that there was said by Mr McGahan at the coffee shop meeting words to the effect that ‘if you want to work in the construction industry you have to join the union’;
(ii)he asserted that ‘There was no conversation about the union whatsoever’;
(iii)he denied a white CFMEU membership application form was produced by Mr McGahan at the meeting and passed towards Mr de los Reyes;
(iv)after Mr de los Reyes left the coffee shop meeting, he admitted that there was conversation on the subject as to whether Mr de los Reyes was a contractor or a direct employee of Bakkante;
(v)he denied that the purpose of the meeting was ‘to deal with the issue of Mr de los Reyes’ non-membership of the Union’; and
(vi)he further denied that the purpose of raising the question of Mr de los Reyes’ workers compensation and public liability ‘and the like’ was to place pressure on him to join the Union.
My conclusions as to infringement of s 298P(3) of the Act
The evidence, both on affidavit and viva voce, has been necessary to record in considerable detail, by reason of the inherent nature of the cause of action, and of the complexity of the evidence tendered in the proceedings. It discloses in my judgment that contrary to the objects of Part XA of the Act set out in s 298A thereof, the respondents conducted themselves in a manner principally designed to deny the freedom of Mr de los Reyes to withhold from joining the Union.
In the events which I have already recorded, Mr de los Reyes ultimately became a member of the Union, the employer Bakkante making payment of his first annual subscription of trade union fees on his behalf. Prior to Mr de los Reyes acquiescing in that course, implicitly by his conduct, he had voluntarily absented himself from his place of employment, being Bakkante’s construction site, without payment of wages, rather than submit to the demands of the respondents that he become a member of the Union, being demands communicated to him predominantly in the course of the coffee shop meeting, to the extent that he attended the same.
Prior to Mr de los Reyes becoming a member of the Union, the evidence discloses that at least by the time of the coffee shop meeting, which was attended by Messrs Blevin, McGahan and Glass as officers etc of the Union, on the one hand, and Messrs Yee, de los Reyes and Zoratto as employees of Bakkante on the other hand (Mr Yee being as well of course an executive officer of Bakkante), Mr McGahan, in the presence and with the implicit concurrence of Mr Blevin (and for that matter also of Mr Glass), advised, encouraged and incited Mr Yee, in his capacity as an executive officer (if not the chief executive officer) of Bakkante, by the clear implication of his words and actions, to dismiss Mr de los Reyes from Bakkante’s employ. As a necessary consequence, Mr de los Reyes was thereby injured in his newly established employment by Bakkante, and his position as an employee of Bakkante altered to his prejudice, and any further employment of Mr de los Reyes by Bakkante was denied to him, in each case in contravention of s 298P(3) of the Act, unless Mr de los Reyes would become a member of the Union. I have hence made those findings above in favour of the applicant in relation to the operation of, or by reference, to s 298P(3) of the Act, upon each of the elements of s 298K(1).
The basis for those findings in summary is to be found in the evidence I have extracted or summarised, necessarily in detail, from both the affidavit and viva voce evidence respectively presented to the Court by the parties. The nature of the subject statutory contraventions the subject of the proceedings is such that for an applicant for relief to demonstrate any committal of those contraventions to the satisfaction of the Court, in line with the Briginshaw test, it became inherently necessary in the circumstances of the case for the applicant to provide the Court with a substantial amount of evidentiary material. It has consequently become appropriate and unavoidable for the Court to reflect that extensive material in considerable detail. It has not been a proceeding where the main issue involved may be largely resolved upon the basis of documentary material.
I find that the first instance of alleged breach of s 298P(3) of the Act occurred on 26 November 2002 on the Bakkante construction site in the circumstances described in [77] above. That breach involved the threat by Mr Blevin directed to Mr Yee of ‘trouble’, if Mr de los Reyes would not become a member of the Union. In making that finding, I accept the testimony of Mr Yee bearing upon the incident as essentially accurate, and soundly based within factual context which Mr Yee recorded in his evidence. Whilst Mr Yee said that Mr Zoratto was present on that occasion, and Mr Zoratto’s testimony did not include any specific recall of Mr Blevin’s threat of ‘trouble’ as claimed by Mr Yee, nevertheless Mr Zoratto’s testimony as to the subsequent pre-coffee shop incidents, summarised in [78] above, referred to demands made by Mr Blevin at least for information about Mr de los Reyes’ ABN number and his insurances and wages book, inferentially made prior to the coffee shop meeting. Mr Osmankerim’s evidence relating to on-site pre-coffee shop dialogue involving Mr Blevin is more proximate, in content of narrative, to Mr Yee’s pre-coffee shop evidentiary account. Mr Blevin’s denial of making the threat to Mr Yee on that occasion should not be accepted, for the reasons which I have recorded and explained in [99]-[113] above, and also in [115]-[118] above, in so far as that evidentiary material related to the pre-coffee shop conversations, and related incidents, on the Bakkante building site.
It is apparent from what I have concluded above, concerning Mr Blevin’s pre-coffee shop behaviour, that I am unable to accept the substance of Mr Blevin’s evidence in relation to his denial of the alleged proscribed conduct on his part occurring prior to the coffee shop meeting. In that regard, the evidence of Mr Yee is to be preferred as the significantly more credible. I regret to say that Mr Blevin’s responses in the witness box under cross-examination, which I have recorded, for instance in relation to pre-coffee shop events in controversy, were characterised by somewhat intemperately expressed denials, unprovoked by the carefully and politely presented cross-examination on the part of senior counsel for the applicant. Mr Blevin’s responses were also characterised by the unwarranted exploitation of perceived opportunities, presented in the course of his cross-examination, to advocate the respondents’ cause in the proceedings. I am obliged to characterise Mr McGahan’s to a similar extent.
By way of contrast, my observation of Mr Yee and my reception of his testimony, in relation to the pre-coffee shop events of controversy, was conversely that his testimony did not reflect the shortcomings I have distilled in these reasons in relation to Mr Blevin’s testimony in relation to those events. Moreover Mr Yee’s testimony draws some implicit support from the only pre-coffee shop written record relating thereto tendered in the proceedings – see again [77] above in that regard.
Before coming to the findings which I am obliged to make in relation to the critical coffee shop meeting, it is necessary that I record some further findings concerning the various accounts as to the pre-coffee shop circumstances. In advancing critical observations concerning Mr Blevin’s conduct, I acknowledge, as I have also done elsewhere in these reasons, that as an on-site representative of the Union on a large construction worksite, he had an important function to discharge by reference to work safety precautions for workmen physically on site, and no criticism could rightly be made in respect of any bona fide endeavours on his part in exercising that function. The inherently or potentially dangerous condition of major building worksites in Sydney has received a substantial amount of public attention, particularly in more recent times.
There is material available from my evidentiary summaries already in place of an inference open to be drawn that Mr Blevin was initially vocal in his opposition to the employment of Mr de los Reyes on the Bakkante project. That opposition appears to have stemmed at least partly by reason of Mr Blevin’s requests to Mr Yee that an acquaintance of his, being apparently a member of the Union, should have been appointed to the employment position which was taken up by Mr de los Reyes. A significant aspect of that manifestation of Mr Blevin’s disappointment with the employment preference accorded to Mr de los Reyes involved Mr Blevin’s active opposition to Mr de los Reyes’ operation of the Alimack hoist on the Bakkante site, purportedly on the basis of site safety, Mr de los Reyes not having been ‘ticketed’ to operate the machine. Significant detriment was occasioned to the respondents’ case by Mr Blevin’s conduct in that regard by reason of further evidence adduced to the effect that immediately after Mr de los Reyes became a member of the Union, the opposition by Mr Blevin to Mr de los Reyes’ ongoing operation of the Alimack hoist was no longer pursued by or on behalf of the respondents. I have of course already made reference to the evidentiary material relating to the Alimack controversy.
Further pre-coffee shop expressions of opposition by Mr Blevin to Mr de los Reyes’ employment by Bakkante, as recorded already in my evidentiary summaries, related to Bakkante’s employment of Mr de los Reyes as a construction worker supposedly on the basis of the ABN taxation regime applicable to independent contractors, despite Mr Yee’s assurances to Mr Blevin to the contrary. The conclusion which I would draw from the evidence in the proceedings, concerning pre-coffee shop conversations and discussions which I have earlier extracted and summarised, is that efforts were made, by and on behalf of the Union’s witnesses to assimilate or otherwise confuse the income tax reporting regime, applicable from the outset to Mr de los Reyes’ employment full time as a construction worker on the Bakkante building site, with that applicable to his previous part time work on the same site as a cleaner in the employ of his family company Phoenix, that company having operated on the site as an independent contractor. As Mr Zoratto testified, and I so find, Mr Blevin simply wanted Mr de los Reyes ‘off the job’ (see [68] above).
I have earlier raised, in the course of my narrative of the contentious occurrences involved in these proceedings, a number of adverse observations, and I have also formulated a number of reasons, purportedly for the purpose of criticism and rejection of the evidence of Mr Blevin, whether given by affidavit or viva voce, which I will not repeat, in relation to certain pre-coffee shop occasions. Perhaps one matter not yet recorded for completeness was his testimony in the course of cross-examination that ‘Union membership… is not overly important’ to him. I would reject the credibility of Mr Blevin’s assertion in that regard, in the light of what I have recorded as having taken place, at the least prior to the controversial coffee shop meeting. In summary, and without further repetition of the critical observations and conclusions I have already made or reached (as the case may be) in these reasons, I find myself unable to accept the credibility of the affidavit and viva voce evidence of Mr Blevin, to the extent that it is in conflict with that of Mr Yee and Mr de los Reyes upon the critical matters in issue, and is also in conflict with that of Mr Zoratto (subject to the reservations I have made in that regard as to the accuracy of Mr Zoratto’s recall of pre-coffee shop events) and additionally (if at all) with that of Mr Osmankerim.
The questioning of Mr de los Reyes by Mr McGahan at the coffee shop meeting, concerning his supposed engagement on the site as independent contractor, was in my judgment part of a tactical pretext imposed in an oppressive manner upon Mr de los Reyes to become a member of the Union. I am unable to accept the notion that Messrs McGahan and Glass took the trouble to journey from the city to the Bakkante construction site for any purpose or at least any material purpose, directly or indirectly, other than to secure one of two alternatives. Those alternatives were that Mr de los Reyes either become a member of the Union, or else cease in reality to undertake further building work on the Bakkante construction site. In the events which happened, the first of those objectives was achieved, in the somewhat enigmatic circumstances I have earlier described in these reasons at some length.
In the course of my summarising the evidence in the proceedings relating to the coffee shop meeting, which took place of course in close proximity to the Bakkante construction site, I have made many incidental observations bearing upon certain conflicting evidentiary accounts adduced from those persons present at the meeting, further upon the likelihood of particular evidence being accurate or truthful or probable, as the case may be. It is unnecessary to reiterate that material. The respective evidentiary accounts of the dialogue of the meeting, as already summarised in these reasons, appear (though not entirely), in the following passages of these reasons for judgment already formulated, being principally [82]-[86] relating to Mr de los Reyes, [90]-[93] relating to Mr Yee, and [70]-[74] and [79]-[81] relating to Mr Zoratto. The applicant’s other main witness, Mr Osmankerim, was not present at the coffee shop meeting. His testimony, as summarised at [66]-[67] above, is consistent with and essentially supportive of the evidence otherwise adduced by the applicant in the proceedings.
My summary of the evidence of Mr Blevin has been necessarily more extensive than that of any of the other witnesses who gave evidence for the respondents’ case in the proceedings. It has been reproduced in detail, partly in [104]-[105] above, where I have made observations upon and criticisms of the substance of the respondents’ case generally, partly in [106]-[114] above in relation to Mr Blevin’s affidavit evidence, and partly in [115]-[119] above in relation to Mr Blevin’s cross-examination. As appears from material, I have found it necessary to be critical of the reliability, and at times credibility, of much of that material, for the reasons there already appearing.
My summary of the evidence of Mr McGahan is also necessarily extensive, because of the scope or breadth thereof, both in its affidavit form and as given in the course of his cross-examination. Again I have found it convenient for that reason to interpolate a number of separate observations or findings, as the case may be, on the credibility or otherwise of that evidence, in the course of recording those aspects thereof which are material, or potentially so. Mr McGahan’s affidavit evidence is summarised from [120]-[129] above, and testimony under cross-examination is summarised from [130]-[141] above.
My summary of the less extensive evidence of Mr Glass, as to what appeared in affidavit form, is set out from [142]-[150] above, and as to what appears in his cross-examination, from [151]-[153] above. Again I have interpolated some observations in the course of that summary.
It will be apparent from the views and conclusions which I have made in the course of my summary and review of the respective testimonies of Messrs Blevin, McGahan and Glass, particularly by way of criticism or other adverse observation, that I am unable to accept the credibility of the critical aspects thereof, to the extent that their evidence is subject at least to any major dispute. I have reached the clear conclusion that in virtually all important or critical aspects, to the extent of conflict or inconsistency between the testimony which I have extensively reviewed on the part of the witnesses who have given evidence for the applicant, and that of each of the two respondents Messrs Blevin and McGahan, together with that also of Mr Glass, the evidence tendered by the applicant is the more accurate, reliable, and credible, and should be accepted for all purposes of resolving the issues arising in the proceedings. I have been unable to accept as truthful or reliable those material aspects of what each of Messrs Blevin, McGahan and Glass have indicated in their respective testimonies to the Court, to be materially in controversy with the evidence of the respondents’ witnesses, and in particular of Messrs Yee and de los Reyes, except to the extent I may otherwise have indicated in these reasons.
It will doubtless have been appreciated, from what I have recorded in these conclusions, that among the major factors bearing upon my conclusion as to the absence of credibility of the respondents’ case are to be identified in the events and circumstances which occurred after Mr de los Reyes’ return to work on the Bakkante construction site as a newly admitted member of the Union. In short, Mr de los Reyes was treated by the Union, and Mr Blevin in particular, in the context of his resumed employment on the construction site, with equanimity and as a fully fledged and qualified construction worker in the employ of Bakkante, having duties even inclusive as to the operation of the Alimack hoist.
It follows from my foregoing findings and conclusions that the applicant has made out its case for contravention of s 298P(3) of the Act on the part of each of Messrs Blevin and McGahan, and consequently also on the part of the Union (which I have found to have been duly represented by Messrs Blevin and McGahan at all times and for all purposes material to the issues I have resolved). In short, the respondents and each of them threatened to cause the dismissal of Mr de los Reyes from his employment by Bakkante, and to injure him in his employment by Bakkante, and to alter the position of Mr de los Reyes as an employee of Bakkante to his prejudice, in each case for the reason that he did not propose to become a member of the Union. To the extent that such impermissible reason is not evident or sufficiently evident as attributable, on the balance of the probabilities, to the respondents and each of them concerning their respective purposes, which I do not think to be the case as a matter of clearly established inference flowing from the findings I have made, I further find in any event that the respondents and each of them were actuated by the foregoing reason, either alone, or as one of their reasons, for the conduct complained of. In short in that latter regard, I would in any event invoke the presumption that is provided for in s 298V, to the extent that it is necessary so to do to give effect otherwise to my findings in favour of the applicant.
It follows that the applicant is entitled in principle to orders as to the imposition of a penalty, and to the payment of compensation to Mr de los Reyes, pursuant respectively to ss 298U(a) and (c) of the Act. At the request of the respondents, I stand over the granting of any such relief for 14 days, pending the receipt of any submissions in writing by either party in the meantime.
I certify that the preceding one hundred and seventy-three (173) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Conti. Associate:
Dated: 1 June 2004
Counsel for the Applicant: JJ Fernon SC Solicitor for the Applicant: Australian Government Solicitor Counsel for the Respondent: IC Latham Solicitor for the Respondent: Taylor & Scott Date of Hearing: 20-24, 29 October 2003, 27 November 2003,
4-5 December 2003Date of Judgment: 1 June 2004
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