Hadgkiss v CFMEU

Case [2008] FCAFC 22

FEDERAL COURT OF AUSTRALIA

Hadgkiss v CFMEU [2008] FCAFC 22

INDUSTRIAL LAW – “false or misleading representation” – whether pleaded allegation sufficiently established by the evidence – whether representation a statement of future intention or objective – allegation sufficiently within contraventions pleaded –“eligible person” – whether a member of a partnership may be an eligible person – whether reverse onus in s 298V applied by primary judge – appeal allowed in part – case remitted to primary judge for further consideration

WORDS AND PHRASES - “false or misleading representation” - “eligible person”

Workplace Relations Act 1996 (Cth) s 84, s 170NC, s 170NC (1), s 298B, s 298S, s 298S (1), s 298S (2) (a), s 298SC (c), s 298V

Construction, Forestry, Mining and Energy Union v Hadgkiss [2007] FCAFC 197
CSR v Della Maddalena (2006) 224 ALR 1, [2006] HCA 1
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
Given v Pryor (1979) 24 ALR 442
Hadgkiss v Construction, Forestry, Mining and Energy Union (No 3) [2007] FCA 87
Hadgkiss v Construction, Forestry, Mining and Energy Union (No 4) [2007] FCA 425
James v ANZ Banking Group Ltd (1986) 64 ALR 347
Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191
PG & LJ Smith Plant Hire Pty Ltd v Lanskey Constructions Pty Ltd [2004] FCA 1618; 137 IR 98

NIGEL CLIVE HADGKISS v CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION, CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION (NSW BRANCH), EDMOND CASPER AND MICHAEL LANE
NSD 650 OF 2007

NORTH, LANDER AND BUCHANAN JJ
5 MARCH 2008
SYDNEY


GENERAL DISTRIBUTION

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 650 OF 2007
ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

NIGEL CLIVE HADGKISS
Appellant

AND:

CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION
First Respondent

CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION (NSW BRANCH)
Second Respondent

EDMOND CASPER
Third Respondent

MICHAEL LANE
Fourth Respondent

JUDGES:

NORTH, LANDER AND BUCHANAN JJ

DATE OF ORDER:

5 MARCH 2008

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The appeal is allowed in part.

2.The following additional declarations are made as part of Order 1 made on 26 March 2007:

(j)By making a representation on 17 February 2004 that in order to work on the Wollongong site each of Norm Philipp, Reinhard Philipp, Anthony Summers and Barry Sindel was obliged to join the First Respondent and/or the Second Respondent, the Fourth Respondent contravened s 298SC(c) of the Act.

(k)By the action of the Fourth Respondent referred to in (j) above the First Respondent contravened s 298SC(c) of the Act.

(l)By the action of the Fourth Respondent referred to in (j) above the Second Respondent contravened s 298SC(2) of the Act.

3.The matter is remitted to the trial judge for further consideration in accordance with these reasons as to:

(i)whether on 18 February 2004 the Third Respondent (and by his actions the First and Second respondents), within the meaning of s 298S(2)(a),…

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AGLC
Hadgkiss v CFMEU [2008] FCAFC 22
Case
[2008] FCAFC 22
Decision Date

CaseChat Overview and Summary

The case of Hadgkiss v CFMEU involved an appeal against a decision made by a primary judge in the Fair Work Australia Commission, now known as the Fair Work Commission. The appellant, Mr Hadgkiss, sought to appeal certain findings made by the primary judge, who had concluded that statements made by the respondent, Mr Lane, were false or misleading under the Fair Work Act 2009. The appeal was heard by the Full Bench of the Federal Court of Australia, which was required to determine whether the primary judge's findings were correct and whether the appeal should be allowed.

The legal issues in this case centred around the interpretation of the Fair Work Act 2009 and the specific provisions related to misleading or false statements in the context of industrial relations. The primary judge had to assess the context in which the statements were made, the reliability of the evidence presented, and the implications of those statements. The appellant argued that the primary judge had not correctly assessed the evidence and had made errors in drawing conclusions from the statements made by Mr Lane. The court was required to conduct a real review of the evidence presented, taking into account the limitations of an appellate review as outlined in previous High Court decisions.

The Full Bench of the Federal Court found that while the primary judge had considered the context and the implications of the statements made by Mr Lane, there were certain errors in the assessment of the evidence. The court acknowledged that the primary judge had the advantage of seeing and hearing the witnesses, but also recognised the need to conduct a real review of the evidence. The court allowed the appeal in part, finding that the primary judge's conclusions were not supported by the evidence. The court made additional declarations regarding the contravention of specific sections of the Fair Work Act 2009 and remitted the matter to the primary judge for further consideration of certain issues, including the potential penalties to be imposed on the respondents.

In summary, the Full Bench of the Federal Court allowed the appeal in part, made additional declarations, and remitted the matter to the primary judge for further consideration. The court emphasised the need for a real review of the evidence and the importance of considering the context in which statements were made when interpreting industrial legislation.

Orders

Orders of the court

1. The appeal is allowed in part.

2. The following additional declarations are made as part of Order 1 made on 26 March 2007:

(j) By making a representation on 17 February 2004 that in order to work on the Wollongong site each of Norm Philipp, Reinhard Philipp, Anthony Summers and Barry Sindel was obliged to join the First Respondent and/or the Second Respondent, the Fourth Respondent contravened s 298SC(c) of the Act.

(k) By the action of the Fourth Respondent referred to in (j) above the First Respondent contravened s 298SC(c) of the Act.

(l) By the action of the Fourth Respondent referred to in (j) above the Second Respondent contravened s 298SC(2) of the Act.

3. The matter is remitted to the trial judge for further consideration in accordance with these reasons as to:

(i) whether on 18 February 2004 the Third Respondent (and by his actions the First and Second respondents), within the meaning of s 298S(2)(a), advised, encouraged or incited Nenad Djukic to take discriminatory action against each of Norm Philipp, Reinhard Philipp, Anthony Summers and Barry Sindel because each was not a member of an industrial association;

(ii) what, if any, penalties should be imposed on the first, second, third or fourth respondents as a result of, or arising out of, Orders 2 and 3(i) hereof.

4. The appeal is otherwise dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

NORTH, LANDER AND BUCHANAN JJ
In [294(b)] his Honour summarised his conclusion. Whilst the conclusion was succinct, it followed from a detailed examination of the events of 17 February 2004, which was set out at [201] to [243]. Within the description of the events, his Honour made some findings of fact, made certain assessments of the reliability of the evidence of witnesses, and painted a full picture of the ebb and flow of the meeting including the moods of the participants and the broad scope of the issues with which the meeting dealt. The appellant’s argument must be assessed by reference to the full consideration given by his Honour to all these matters, as well as by reference to the conclusion expressed in [294(b)]. The reasons for judgment of the primary judge On the evening of 16 February 2004, Mr Repas, the principal of Pro Finish, rang Mr Suter to tell him that there was no work for Pro Finish at the Wollongong site the next day, as there were a few problems, including that a work method statement was not ready. On 17 February 2004, Mr Lane started the day by going to the Wollongong site and giving Mr McEwan, the Project Manager of the Wollongong site employed by the head contractor, Hansen Yuncken, some names of plastering contractors who would be suitable for work on the site. Mr McEwan explained that Hansen Yuncken would consider the suggested plasterers if they were competitive but that he would continue with Pro Finish if it supplied all relevant paperwork. Mr McEwan contacted Mr Suter to arrange an urgent meeting to address the need for a work method statement. This was followed by a conversation between Mr Suter and Mr Bowman, the Hansen Yuncken site manager, who told him that Pro Finish had to get its work method statement in order and fix up its workers’ compensation. In the early afternoon Mr Suter met with his employer, Mr Repas. Mr Suter suggested that he, Mr Suter, should meet Mr Lane so that Pro Finish could establish a proper working relationship with the union. The conversation suggested that Pro Finish was in the process of expanding its business and Mr Suter saw the need to negotiate arrangements for that emerging situation. He signalled to Mr Repas that if Pro Finish negotiated an Enterprise Bargaining Agreement (EBA), it would avoid union trouble. Later, Mr Repas and Mr Suter met Mr McEwan and Mr Bowman on site. A wide range of issues was discussed. Mr McEwan said that Mr Lane wanted the site to be a union site and they also discussed superannuation, the need for a work method statement, an EBA, workers’ compensation and contract value. His Honour then outlined the immediate background to the meeting between Mr Suter and Mr Lane at [207]:In relation to an EBA with the Union, discussion took place about contacting the Union. Mr Suter agreed to go and meet with Mick Lane in the Union office to talk about the problems of Pro Finish Interiors, the problems of an EBA and the Union’s views on Pro Finish Interiors as a company with a view to trying to bring the Union and Pro Finish Interiors together to come up with an agreement to settle the problems.

Ratio Decidendi

Legal Principle Established

Established by: NORTH, LANDER AND BUCHANAN JJ

Notwithstanding the significant challenges it faces, the role of the appellate court remains that of real review, a function which was explained by Gleeson CJ, Gummow and Kirby JJ in Fox v Percy (2003) 214 CLR 118; [2003] HCA 22, at [25] thus:Within the constraints marked out by the nature of the appellate process, the appellate court is obliged to conduct a real review of the trial and, in cases where the trial was conducted before a judge sitting alone, of that judge’s reasons. Appellate courts are not excused from the task of ‘weighing conflicting evidence and drawing [their] own inferences and conclusions, though [they] should always bear in mind that [they have] neither seen nor heard the witnesses, and should make due allowance in this respect’. (Dearman v Dearman (1908) 7 CLR 549 at 564, citing The Glannibanta (1876) 1 PD 283 at 287).In CSR v Della Maddalena (2006) 224 ALR 1, [2006] HCA 1, Kirby J (with whom Gleeson CJ agreed) explained some of the limitations on the appellate role inherent in the nature of the function at [17] as follows:The ‘limitations’ introduced into the rehearing based on the record of the trial are those necessarily involved in that form of appellate procedure. Such limitations include those occasioned by the resolution of any conflicts at trial about witness credibility based on factors such as the demeanour or impression of witnesses; any disadvantages that may derive from considerations not adequately reflected in the recorded transcript of the trial; and matters arising from the advantages that a primary judge may enjoy in the opportunity to consider, and reflect upon, the entirety of the evidence as it is received at trial and to draw conclusions from the evidence, viewed as a whole.[Footnotes omitted]Consideration In determining whether a statement is false or misleading, it is necessary to consider the context within which the statement was made: Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191 at 199; Given v Pryor (1979) 24 ALR 442 at 446-447. In this case, as the appellant correctly recognised, the task of the primary judge was to make findings not only as to the particular words used by Mr Lane but also as to the implications to be drawn from those words. As is described earlier in these reasons, the primary judge examined the context in which the statements were made by Mr Lane. This examination involved considering the emotional reactions of the participants at the time of the meetings. His Honour’s conclusions on this matter followed in part from his general assessment of the reliability of the evidence of Mr Suter. His Honour’s conclusions also flowed from an assessment of the evidence viewed as a whole. He took into account the full industrial situation in which the meeting was held. This involved a consideration of the history of disputation between the parties prior to the meeting, and the interplay of the multiple issues addressed at the meeting. Central to his Honour’s conclusion was the impression created by these various factors. Whilst this Court must conduct a real review of the evidence for itself, it must also acknowledge that the primary judge had a particular advantage in assessing the implications to be drawn from the statement made by Mr Lane.