Hadgkiss v Blevin

Case [2004] FCA 697

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 1531

C 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
APPLICANT

AND:

ALAN BLEVIN
FIRST RESPONDENT

JOSEPH McGAHAN
SECOND RESPONDENT

CONSTRUCTION FORESTRY MINING AND ENERGY UNION
THIRD RESPONDENT

JUDGE:

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…

Continue reading Hadgkiss v Blevin

Sign in free to access the full text

Details
AGLC
Hadgkiss v Blevin [2004] FCA 697
Case
[2004] FCA 697
Decision Date

CaseChat Overview and Summary

The case of Hadgkiss v Blevin was heard by the Federal Court of Australia, where the applicant, Conrado de los Reyes, sought to establish that the respondents had contravened certain provisions of the Workplace Relations Act 1996 (Cth). The respondents, including individuals and the CFMEU Union, were alleged to have engaged in conduct intended to coerce the applicant into becoming a member of the union, which was in breach of the Act. The court had to determine whether the evidence presented supported the applicant's claims of coercion and if the respondents had indeed contravened the Act.

The central legal issues revolved around whether the actions of the respondents constituted an infringement of the applicant's rights under the Workplace Relations Act, specifically sections 298P(3) and 298U(c). The court needed to evaluate the credibility of the conflicting testimonies from both the applicant and the respondents to ascertain the truth of the alleged coercive conduct. Additionally, the court had to consider the applicability of the Briginshaw standard of proof in determining the seriousness of the allegations made.

The court concluded that the evidence, both documentary and testimonial, supported the applicant's claims. The testimonies were detailed and conflicting, but after careful evaluation, the court found that the respondents had indeed engaged in conduct intended to coerce the applicant into joining the union. The court found that the actions of the respondents were in contravention of sections 298P(3) and 298U(c) of the Act. The court ordered that the proceedings be stood over to determine the amount of penalty to be awarded against the respondents and the compensation to be paid to the applicant. Both parties were required to submit written arguments within 14 days regarding the assessment of penalty and compensation.

Orders

Orders of the court

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.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

CONTI J
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).

Ratio Decidendi

Legal Principle Established

Established by: CONTI J

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.