Hadgkiss v Construction, Forestry, Mining and Energy Union (No 3)
[2007] FCA 87
•9 February 2007
FEDERAL COURT OF AUSTRALIA
Hadgkiss v Construction, Forestry, Mining and Energy Union (No. 3)
[2007] FCA 87INDUSTRIAL RELATIONS – whether false or misleading representations made about a person’s obligation to join an industrial association – whether advice, encouragement or incitement given or provided to take discriminatory action against a person who was eligible to join an industrial association – whether industrial action threatened with intent to coerce a person to agree to make an Enterprise Bargaining Agreement
WORDS AND PHRASES – meaning of ‘false or misleading’ in s 298SC(c) of the Workplace Relations Act 1996
Held: contraventions of s 298SC(c) established against all respondents
Workplace Relations Act 1996 (Cth) ss 3, 4, 170L, 170LH, 170LI, 170LN, 170NC, 170NF(1), 170WG(2), 172, 174, 298A, 298B(1), 298B(2), 298C, 298D, 298S, 298SC(c), 298T, 298U, 298V, 347(1) and 349
Industrial Relations Act 1996 (NSW) s 209(2)
Trade Practices Act 1974 (Cth) s 52
Customs Act 2001 (Cth) s 229(1)(i)Capper v Thorpe (1998) 194 CLR 342
Briginshaw v Briginshaw (1938) 60 CLR 336
Rejfek v McElroy (1965) 112 CLR 517
Jones v Dunkel (1959) 101 CLR 298
Payne v Parker [1976] 1 NSWLR 191
Hadgkiss v Construction, Forestry, Mining and Energy Union (2006) 152 FCR 560
Hornsby Building Information Centre Pty Limited v Sydney Building Information Centre Limited (1978) 140 CLR 216
Brown v Jam Factory Pty Limited (1981) 53 FLR 340
Murphy v Farmer (1988) 165 CLR 19
Re Polites; Ex Parte The Hoyts Corporation Pty Limited (1991) 173 CLR 78NIGEL CLIVE HADGKISS v CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION, CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION (NEW SOUTH WALES BRANCH), EDMOND CASPER AND MICHAEL LANE
NSD 1259 OF 2005GRAHAM J
9 FEBRUARY 2007
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 1259 OF 2005
BETWEEN:
NIGEL CLIVE HADGKISS
ApplicantAND:
CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION
First RespondentCONSTRUCTION, FORESTRY, MINING AND ENERGY UNION (NEW SOUTH WALES BRANCH)
Second RespondentEDMOND CASPER
Third RespondentMICHAEL LANE
Fourth Respondent
JUDGE:
GRAHAM J
DATE OF ORDER:
9 FEBRUARY 2007
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The parties bring in Short Minutes to provide for declarations in accordance with the reasons for judgment of 9 February 2007.
2.The proceedings be stood over to a date to be fixed to enable submissions to be put on the question of other relief and costs.
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
NSD 1259 OF 2005
BETWEEN:
NIGEL CLIVE HADGKISS
ApplicantAND:
CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION
First RespondentCONSTRUCTION, FORESTRY, MINING AND ENERGY UNION (NEW SOUTH WALES BRANCH)
Second RespondentEDMOND CASPER
Third RespondentMICHAEL LANE
Fourth Respondent
JUDGE:
GRAHAM J
DATE:
9 FEBRUARY 2007
PLACE:
SYDNEY
REASONS FOR JUDGMENT
Introduction
These proceedings concern alleged contraventions of certain provisions of the Workplace Relations Act 1996 (Cth) (‘the Act’) said to have been committed in the Illawarra region of New South Wales on Monday 19 January 2004, Tuesday 17 February 2004 and Wednesday 18 February 2004. Most of the contraventions are said to have occurred at a building site located in Woodhill Street, Fairy Meadow (‘the Fairy Meadow site’). The others are said to have occurred in the first and/or second respondents’ Wollongong office (‘the CFMEU office’).
To understand the circumstances surrounding the alleged contraventions it is also necessary to have regard to another building site located at the corner of Bank and Harbour Streets in Wollongong (‘the Wollongong site’)
The principal in respect of the Fairy Meadow site was Ousley Pty Limited ABN 41 073 191 992 which was represented on site by Mr Les Dowse. The head contractor at that site was Lanskey Constructions Pty Limited ABN 66 010 636 512 (‘Lanskey’). Mr David Rowland, who served as site manager for Lanskey, was Lanskey’s senior representative on the site. His general foreman or ‘2IC’ was a Mr Chris Taylor (referred to in some diary notes as ‘C.T.’) The building being constructed at the Fairy Meadow site was known as the ‘Northgate Apartments’ building. It consisted of four separate blocks - A, B, C and D. All four blocks shared a common car parking area at ground floor level. Blocks A and D had five upper floors including a loft or penthouse level. Blocks B and C were similar, but they had six upper floors including a loft or penthouse level. Approximately ten units per floor were being constructed on the upper floors of each block with approximately eight units on each loft or penthouse level. The total value of the construction was approximately $23 million. The relevant work for present purposes was gyprock plastering work in blocks A and D.
The head contractor in respect of the Wollongong site was Hansen Yuncken Pty Limited ABN 38 063 384 056 (‘Hansen Yuncken’). The building under construction on that site was known as ‘The Pavilions, City Beach Apartments – Stage 2’. It was a 52 unit development of about ten storeys in height. By February 2004 the main concrete structure at the Wollongong site was substantially complete and the façade with windows etc was being added to the lower floors. Once again the relevant work was gyprock plastering.
In the course of both building projects the contractors had dealings with Pro Finish Interiors Pty Limited ABN 16 096 811 059 (‘Pro Finish Interiors’), which in March 2005 became known as AAA Interiors Pty Limited. In January/February 2004 it traded as ‘Pro Finish Interiors’. Its principal director was Mr Spiro Repas. Its site foreman at the time was Mr Glenn Suter.
Lanskey also had dealings with Innovation Interiors Pty Limited ABN 89 104 518 989 (‘Innovation Interiors’). That company entered into external administration on 24 February 2005. In January/February 2004 its principal director was Mr Nenad (also known as ‘Ned’) Djukic. Its site foreman at the Fairy Meadow site was its leading hand, Mr Graham Boyd.
In turn, Innovation Interiors also had dealings with some of Pro Finish Interiors’ workers in respect of work at the Fairy Meadow site.
Innovation Interiors had a contract to carry out plastering work in respect of Blocks A, B, C and D at the Fairy Meadow site. As it was running behind with its work it had part of the work on Block A taken off it and, at the same time, all of the plastering work in respect of Block C. The work that was taken off Innovation Interiors in respect of Block A was plastering work in respect of the loft or penthouse level of that block. Thereupon, the builder retained a company known as Fast Track to attend to the plastering work in respect of the loft or penthouse level of Block A and another company was retained to carry out the plastering work in respect of Block C.
After about four to six weeks on the site, commencing before Christmas 2003, Fast Track left the site with some of the work on the loft or penthouse level of Block A unfinished. All the sheeting had been done. The majority of the outstanding work was to finish the setting of the sheeting – putting a coating over the gyprock – and to attend to defects. Both Innovation Interiors and Pro Finish Interiors submitted prices for the completion of Fast Track’s work but the job was awarded to Pro Finish Interiors. An order, signed by Ian Herd, a Lanskey foreman, was formally placed by Lanskey on ‘Pro Finnish (sic) Interiors’ on Monday 19 January 2004 to ‘Finnish (sic) works to block A’ – ‘A block level 4’. A day rate of $55 per hour was specified. The relevant work commenced on that day and was substantially completed on Friday 30 January 2004. Lanskey’s site foreman for Blocks A and B, Mr Andrew Green, recorded in his site diary for 30 January 2004 that Pro Finish Interiors had 5 men on site who ‘Completed A4 + Hall’. On that day Pro Finish Interiors issued a tax invoice to Lanskey for the work carried out in the period 24 January 2004 to 30 January 2004 describing the work the subject of that invoice as:
‘For the supply of tradesmen labour and materials required to carry out plasterboard defect repair works to
PROJECT*** Northgate Apartments Block A Level 4 Fairy Meadow’The invoice proceeded to list the names of the tradesmen who had performed work together with the number of hours worked with extensions, calculated by reference to the charge out rate of $55 per hour, to which GST was added. No charge was imposed for the work of Pro Finish Interiors’ site foreman, Glenn Suter. In respect of the other workers charges were imposed for the work of Barry Sindel – 24 hours, Norm Philipp – 30 hours, Norman Philipp [Mr Norm Philipp’s son] – 32 hours, Paul Philipp [Mr Norm Philipp’s brother, Reinhard Philipp also known as ‘Paul’] – 30 hours, Anthony Summer (sic) [Anthony Summers] – 30 hours and Jimmy Gontas [Dimitrios Gontas] – 16 hours. Each of the men, whose time was charged out by Pro Finish Interiors at $55 per hour plus GST, charged Pro Finish Interiors $35 per hour plus GST for their services.
Notwithstanding the apparent completion of Pro Finish Interiors’ work on 30 January 2004, Mr Anthony Summers returned to carry out further work for Pro Finish Interiors at the Fairy Meadow site on Thursday 5 February 2004 and Friday 6 February 2004.
After Pro Finish Interiors finally completed its plastering work on the Northgate Apartments building, it left the Fairy Meadow site. However, a number of its men returned on Wednesday 18 February 2004 to carry out work on Block D after Innovation Interiors, which had the contract for that Block, sought to engage extra gyprock plasterers to enable the work on that Block to be carried out more expeditiously.
In relation to the Wollongong site Pro Finish Interiors was awarded the job of carrying out the plastering work for Hansen Yuncken subject to certain matters being resolved (which, in the result, were never satisfactorily resolved). On 5 February 2004 Pro Finish Interiors had submitted a quotation to Hansen Yuncken for ‘Plasterboard Fit-out works to be carried out to the above-mentioned project [THE PAVILIONS, CITY BEACH STAGE 2- WOLLONGONG]. As per plans & specifications supplied’. Under the heading ‘Lump Sum Tender Price’ the quotation recorded a ‘TOTAL PRICE’ of $1,031,236.50 which with GST produced a ‘TOTAL PRICE INCLUDING GST’ of $1,134,360.15. Part of the price was allocated to ‘Linings and Partition Works’ and the balance to ‘Ceilings and Partition Works’. The quotation was accompanied by a priced bill of quantities for the works.
On Monday 9 February 2004 Mr Repas of Pro Finish Interiors met with Mr Michael McEwan, Hansen Yuncken’s Project Manager for the Pavilions project to consider Pro Finish Interiors’ quotation. Mr McEwan produced a 12 page set of minutes on a standard Hansen Yuncken form headed ‘Trade Contractor Pre-Award/Induction Meeting’. Those minutes included the words ‘THESE MINUTES HAVE BEEN PREPARED IN CONSULTATION AND ARE AGREED AND ACCEPTED FOR IMPLEMENTATION BY BOTH PARTIES’. The minutes were signed for the ‘Trade Contractor’ [Pro Finish Interiors] by Mr Repas and for Hansen Yuncken by Mr McEwan. Mr McEwan’s evidence, which I accept in this regard, was as follows:
‘QWas any arrangement come to between yourself and Mr Repas in that meeting?
AAt the end of that meeting we did agree to a contract value conditional upon a few requirements being met.
Q What was the contract value?
A It was $1 million.
Q What were the conditional requirements that you discussed?AFundamentally the quotation was referencing a bill of quantities which we don’t particularly like. It represents a risk to the builder so I asked for him to confirm his price based on the drawings only and that the bill of quantities was issued for information only. That was the first condition and the others were that safe work method statements and safety plans were forwarded and also certificates of currency for public liability and workers’ compensation.’
The relevant statutory provisions
The relevant statutory provisions of which contraventions are alleged are to be found in Reprint 6 of the Act as published by the Commonwealth of Australia and printed by Authority of the Commonwealth Government Printer. They were ss 170NC, 298S(2)(a) and 298SC(c). Section 170NC is to be found in Part VIB of the Act and ss 298S and 298SC in Part XA. By virtue of s 298C, Part XA applied only to the extent provided in Division 2 of that Part. Relevantly s 298D provided:
‘298D This Part applies to:
(a) conduct by an organisation; and
(b)conduct by an officer of an organisation acting in that capacity; and
(c)conduct carried out with a purpose or intent relating to a person’s membership or non-membership of an organisation.’
The principal object of the Act is to be found in s 3 which relevantly provides:
‘3The principal object of this Act is to provide a framework for cooperative workplace relations which promotes the economic prosperity and welfare of the people of Australia by:
(a) encouraging the pursuit of high employment, improved living standards, low inflation and international competitiveness through higher productivity and a flexible and fair labour market; and
…
(c)enabling employers and employees to choose the most appropriate form of agreement for their particular circumstances, whether or not that form is provided for by this Act; and
…
(f) ensuring freedom of association, including the rights of employees and employers to join an organisation or association of their choice, or not to join an organisation or association; and
…’
The object of Part VIB headed ‘Certified agreements’ is contained in s 170L which provides:
‘170LThe object of this Part is to facilitate the making, and certifying by the Commission, of certain agreements, particularly at the level of a single business or part of a single business.’
The objects of Part XA headed ‘Freedom of association’ are set out in s 298A of the Act which provides as follows:
‘298A 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 170NC relevantly provided as follows:
‘170NC(1) A person must not:
(a)take or threaten to take any industrial action or other action; or
(b)refrain or threaten to refrain from taking any action;
with intent to coerce another person to agree, or not to agree, to:
(c)making, varying or terminating, or extending the nominal expiry date of, an agreement under Division 2 or 3; or
(d)approving any of the things mentioned in paragraph (c).
(2)Subsection (1) does not apply to action, or industrial action, that is protected action (within the meaning of Division 8).
…’
Agreements under Divisions 2 and 3 to which reference was made in s 170NC were identified in ss 170LH, 170LI and 170LN as follows:
‘170LHThis Division sets out requirements that must be satisfied for applications to be made to the Commission to certify certain agreements between employers who are constitutional corporations or the Commonwealth and;
(a)organisations of employees; or
(b)employees.
170LI(1) For an application to be made to the Commission under this Division, there must be an agreement, in writing, about matters pertaining to the relationship between:
(a)an employer who is a constitutional corporation or the Commonwealth; and
(b)all persons who, at any time when the agreement is in operation, are employed in a single business, or part of a single business, of the employer and whose employment is subject to the agreement.
…
170LNThis Division sets out requirements that must be satisfied for an application to be made to the Commission to certify certain agreements:
(a)to settle, further settle or maintain the settlement of, or to prevent, industrial disputes; or
(b)to prevent industrial situations from giving rise to industrial disputes.’
Care needs to be exercised when using the definitions contained in s 4 of the Act. Those definitions are not necessarily applicable to expressions or words as used in Part VIB and Part XA.
In s 4 of the Act ‘industrial action’ is defined as follows:
‘industrial action (except in Part XA) means:
(a)the performance of work in a manner different from that in which it is customarily performed, or the adoption of a practice in relation to work, the result of which is a restriction or limitation on, or a delay in, the performance of the work, where:
(i)the terms and conditions of the work are prescribed, wholly or partly, by an award or an order of the Commission, by a certified agreement or AWA, by an award, determination or order made by another tribunal under a law of the Commonwealth or otherwise by or under a law of the Commonwealth; or
(ii)the work is performed, or the practice is adopted, in connection with an industrial dispute;
(b)a ban, limitation or restriction on the performance of work, or on acceptance of or offering for work, in accordance with the terms and conditions prescribed by an award or an order of the Commission, by a certified agreement or AWA, by an award, determination or order made by another tribunal under a law of the Commonwealth or otherwise by or under a law of the Commonwealth;
(c)a ban, limitation or restriction on the performance of work, or on acceptance of or offering for work, that is adopted in connection with an industrial dispute; or
(d)a failure or refusal by persons to attend for work or a failure or refusal to perform any work at all by persons who attend for work, if;
(i)the persons are members of an organisation and the failure or refusal is in accordance with a decision made, or direction given, by an organisation, the committee of management of the organisation, or an officer or a group of members of the organisation acting in that capacity; or
(ii)the failure or refusal is in connection with an industrial dispute; or
(iii)the persons are employed by the Commonwealth or a constitutional corporation; or
(iv)the persons are employed in a Territory;
but does not include:
(e)action by employees that is authorised or agreed to by the employer of the employees; or
(f)action by an employer that is authorised or agreed to by or on behalf of employees of the employer; or
(g)action by an employee if:
(i)the action was based on a reasonable concern by the employee about an imminent risk to his or her health or safety; and
(ii)the employee did not unreasonably fail to comply with a direction of his or her employer to perform other available work, whether at the same or another workplace, that was safe and appropriate for the employee to perform.’
In relation to industrial action s 4(9) of the Act provided:
‘4(9) For the purposes of this Act:
(a)conduct is capable of constituting industrial action even if the conduct relates to part only of the duties that persons are required to perform in the course of their employment; and
(b)a reference to industrial action includes a reference to a course of conduct consisting of a series of industrial actions.’
In relation to conduct by officers, employees and agents s 349 of the Act provided as follows:
‘349(1)Where it is necessary to establish, for the purposes of this Act, the state of mind of a body corporate in relation to particular conduct, it is sufficient to show:
(a)that the conduct was engaged in by an officer, director, employee or agent of the body corporate within the scope of his or her actual or apparent authority; and
(b)that the officer, director, employee or agent had the state of mind.
(2)Any conduct engaged in on behalf of a body corporate by:
(a)an officer, director, employee or agent of the body corporate within the scope of his or her actual or apparent authority; or
(b)any other person at the direction or with the consent or agreement (whether express or implied) of an officer, director, employee or agent of the body corporate, where the giving of the direction, consent or agreement is within the scope of the actual or apparent authority of the officer, director, employee or agent;
shall be taken, for the purposes of this Act, to have been engaged in also by the body corporate.
(3)A reference in this section to the state of mind of a person includes a reference to the knowledge, intent, opinion, belief or purpose of the person and the person’s reasons for the intent, opinion, belief or purpose.’
Sections 298S and 298SC relevantly provided as follows:
‘298S (1) In this section:
discriminatory action, in relation to an eligible person, means:
(a)a refusal to make use of, or to agree to make use of, services offered by the eligible person; or
(b)a refusal to supply, or to agree to supply, goods or services to the eligible person.
eligible person means a person who is not an employee, but who:
(a) is eligible to join an industrial association; or
(b) would be eligible to join an industrial association if he or she were an employee.
(2)An industrial association, or an officer or member of an industrial association, must not:
(a)advise, encourage or incite a person (whether an employer or not) to take discriminatory action against an eligible person because the eligible person is not a member of an industrial association; or
…
298SCA person must not make a false or misleading representation about:
…
(c)another person’s obligation to join an industrial association.’
In s 298B(1) of the Act (which forms part of Part XA) ‘industrial association’ was defined, unless the contrary intention appears, to mean:
‘(a) an association of employees and/or independent contractors, or an association of employers, that is registered or recognised as such an association (however described) under an industrial law; or
(b) an association of employees and/or independent contractors a principal purpose of which is the protection and promotion of their interests in matters concerning their employment, or their interests as independent contractors, as the case requires; or
(c) an association of employers a principal purpose of which is the protection and promotion of their interests in matters concerning employment and/or independent contractors;
and includes a branch of such an association, and an organisation.’
Under s 298B(1) ‘organisation’ was defined to include ‘a branch of an organisation’. In s 4(1) ‘organisation’ was defined to mean ‘an organisation registered under the Registration and Accountability of Organisations Schedule’ i.e. Schedule 1B to the Act.
Under s 298B(1), ‘officer’, in relation to an industrial association, was defined to include:
‘(a) a delegate or other representative of the association; and
(b) an employee of the association.’
In relation to the vicarious liability of industrial associations for the action of its officers or agents s 298B(2) of the Act relevantly provided:
‘298B(2)For the purposes of this Part, action done by one of the following bodies or persons is taken to have been done by an industrial association:
…
(b) an officer or agent of the industrial association acting in that capacity;
…’
In relation to conduct within Part XA of the Act s 298V provided for a reversal of the onus in respect of establishing matters of intent as follows:
‘298V 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.’
Section 298V of the Act fell within Division 6 of Part XA. Section 298T, which also fell within Division 6, provided for the making of applications to the Court for orders under s 298U in respect of conduct in contravention of Part XA.
Section 298U provided as follows:
‘298UIn 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;
(b)an order requiring the person or industrial association to reinstate an employee, or to re-engage an independent contractor;
(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;
(d)an order requiring the person or industrial association not to carry out a threat made by the person or association, or not to make any further threat;
(e)injunctions (including interim injunctions), and any other orders, that the Court thinks necessary to stop the conduct or remedy its effects;
(f)any other consequential orders.’
These proceedings were commenced on 27 July 2005 by the filing of an Application accompanied by a Statement of Claim. Whilst no mention was made of s 298V in the Application as such, nevertheless reference was made to it in paragraph 44 of the Statement of Claim as follows:
‘44By section 298V of the Act it is presumed that the Third Respondent advised, encouraged or incited as pleaded in paragraph 43 because each ABN worker was not a member of the First Respondent and/or Second Respondent.’
In relation to the cross reference to paragraph 43 it is sufficient for present purposes to refer to the alleged contravention of s 298S(2)(a)referred to at [74(m)] of these reasons.
The personnel involved
Before detailing the contraventions of the Act for which the applicant contends, it is appropriate to identify in greater detail some of the personnel involved.
As mentioned above Mr Rowland served as Lanskey’s site manager at the Fairy Meadow site and his general foreman or ‘2IC’ was Mr Taylor. Lanskey’s contracts administrator was Mr John Miller, the foreman in charge of finishing trades for Blocks A and B was Mr Andrew Green and the foreman in charge of finishing trades for blocks C and D was Mr Ian Herd. Other employees working for Lanskey, from time to time, included Matt Reynolds, Anthony Tate, Andrew Fox and Edmond Erwin Casper, also known as ‘Skip’ Casper.
Whilst Lanskey itself only employed a small number of people to work for it at the Fairy Meadow site, there were as many as 180 workers on site at any given point in time.
Mr Casper, who is the third respondent, served as a storeman and site safety officer for Lanskey. He was described at times as a ‘first aid officer’, as a ‘gofor’ and as a ‘labourer’.
In relation to the Wollongong site, as mentioned above, Mr McEwan served as Hansen Yuncken’s project manager. The site manager was Mr Lance Bowman and the site safety officer was Mr Graham Clinton.
It is common ground that the first respondent is, and at all material times was, an organisation of employees registered under Schedule 1B to the Act and, as such, liable to be sued in its registered name, and also an industrial association within the meaning of s 298B(1) of the Act.
It is also common ground that the second respondent is, and at all material times was, an industrial association within the meaning of s 298B(1) of the Act.
In 2003 – 4 the standard CFMEU membership application form made provision for an applicant to record his or her names, address, telephone numbers, date of birth, gender, first language and trade/job. It also made provision for the relevant work area to be identified be it ‘construction’, ‘manufacturing/joinery’, ‘government’ or ‘elsewhere’. The standard membership application form included the following:
‘I hereby make application for membership of the Construction, Forestry, Mining and Energy Union and the CFMEU (NSW Branch) being the organisation registered under Federal and NSW Industrial Legislation and if admitted, agree to conform to the rules. Further, I request and authorise the CFMEU to represent my interests in relation to any agreement relating to my employment which is proposed to be negotiated under the Workplace Relations Act 1996 or the Industrial Relations Act 1996 (NSW). In the event that such agreement is negotiated under part VI D of the former Act I hereby appoint the CFMEU as my bargaining agent.’
Part VI D of the Act made provision for Australian workplace agreements.
Later in the application form provision was made in respect of resignation from the Union as follows:
‘Members wishing to resign from the union must be financial and are required to write a letter to resign.
If you do not send a letter your union dues will continue to accrue and you will be liable for all dues in accordance with the rules.’
The Union, originally registered as the Building Workers’ Industrial Union of Australia under the Conciliation and Arbitration Act 1904 – 1961 (Cth) became, upon an amalgamation, the Construction, Forestry, Mining and Energy Union in September 1992.
The Construction, Forestry, Mining and Energy Union operates on a divisional basis, the relevant division for present purposes being the ‘Construction and General Division’.
In 2003 – 4 the practice of the Union was to issue receipts for Union dues in the name of the NSW Divisional Branch endorsed ‘RECEIVED ON BEHALF OF CFMEU’.
In January – February 2004 the CFMEU office in Wollongong was a green coloured building opposite the Wollongong railway station. It was manned at the time by three persons being two organisers and an office assistant. The organisers were Michael Richard Lane, also known as ‘Mick’ Lane, and Peter Primmer. As at 18 February 2004 the position of office assistant was filled by Janet McIntosh. Her predecessor had been a lady known as Tanya.
Mr Lane, who is the fourth respondent, worked as an organiser of the CFMEU in the Wollongong area. He represented members of the Federal Union and the State Union in that area amongst others. Mr Lane was an elected representative of the New South Wales branch to the Federal Divisional Conference of the CFMEU. According to his PAYG payment summaries his employer was the body identified with the Australian Business Number of Withholder Payer Number 17 524 350 156 which would appear to have been the ABN for the Construction and General Division of the second respondent.
Mr Lane carries a Federal right of entry in respect of Federal Industrial Relations and a State right of entry in respect of NSW Industrial Relations. In his role as an organiser Mr Lane negotiates and agrees enterprise bargaining agreements which are certified under the Act. Part of his function as an organiser was to sign up members into the Federal and State organisations. Part of his role was to approve delegates of the Union as representatives of the CFMEU at particular workplaces and to supervise such delegates. When asked about ‘supervising’ delegates Mr Lane said:
‘… I’m not sure that that’s really the right word but basically delegates are elected by the members on a job site to carry out something by way of a contact point with the official that may be primarily responsible for the supervising or overseeing that particular worksite.’
In relation to the Fairy Meadow site and the Wollongong site Mr Lane was the person in the CFMEU office who was responsible for those two sites in January – February 2004.
Mr Lane answered to Mr Peter Zeboyak, one of the Assistant State Secretaries of the CFMEU. At the Fairy Meadow site the Union Delegate was Mr Skip Casper and at the Wollongong site the Union delegate was Mr Graham Clinton.
Work commenced at the Fairy Meadow site in late 2002. In about December 2002 Mr Rowland moved from Queensland, where Lanskey is based, to New South Wales to take up his appointment as site manager at the Fairy Meadow site.
In early 2003 Mr Lane contacted Mr Rowland to enquire whether Lanskey would consider hiring Mr Casper on the understanding that he would also serve as the CFMEU site delegate. Mr Rowland proceeded to employ Mr Casper as a storeman on the basis that he would also carry out site induction including occupational health and safety on the Fairy Meadow site.
In relation to the Wollongong site new workers were inducted by Mr Clinton on behalf of Hansen Yuncken.
Mr Rowland says that when he was interviewing Mr Casper he said words to the effect:
‘… you must clearly understand that you cannot enforce unionism on this site or any other site. Unionism is voluntary.’
to which he says Mr Casper responded with words to the effect ‘Yes, I understand that’.
Mr Casper’s evidence is that Mr Rowland said words to the effect:
‘… although you will be the union delegate, you must know that unionism is voluntary. You can’t throw people off site just because they don’t want to be in the union. There’s freedom of association laws and there will be legal problems if you try to force people to be in the union.’
Mr Casper also contends that Mr Rowland or Mr Miller said to him words to the effect:
‘I have no problem with you discussing the men’s Union membership after they have been inducted.’
In or about March 2003 Mr Casper completed a ‘CFMEU Delegates Registration Form’. The form made provision for a name, address, telephone numbers and union number to be inserted in it together with an indication as to whether the relevant registrant worked in ‘Construction’, ‘Manufacturing’, ‘Government’ or ‘other’. Mr Casper inserted his details and nominated his employer as ‘Lanskey’. The form also made provision for one of ten odd awards to be ticked as the relevant award. In Mr Casper’s case he ticked ‘National Construction Award’.
One purpose of the delegates registration form was to deal with commissions payable on union fees that a delegate may collect. The form signed by Mr Casper included:
‘As a delegate you will be entitled to receive on request 5% commission on all union fees you collect. However you must pay in all fees collected and your commission will be processed by the union office. Please select:
o I seek payment of the 5% commission
…oI authorise the 5% commission to be paid to the CFMEU Fighting Fund’
Mr Casper ticked the second box authorising his 5% commission to be paid into the CFMEU Fighting Fund.
Rule 57 of the rules of the Construction and General Division and Construction and General Divisional Branches of the first respondent made provision for the appointment of job delegates. Rule 57 relevantly provided:
‘… job delegates may be appointed by the Divisional Branch Management Committee or appointed by the members in such … job. They shall receive proper credentials from the Divisional Branch Management Committee.
(a)It shall be the duty of all … job delegates to endeavour to enrol appropriate workers in their respective … jobs into the Union.
(b)They may receive contributions from members in such … jobs and issue a receipt from a receipt book provided by the Divisional Branch Management Committee.
(c)They shall be responsible for the payments of all monies received by them to the Divisional Branch fortnightly.
…’
On 28 March 2003 Mr Casper signed a ‘CFMEU Code of Conduct for Union Delegates’ form, his signature being witnessed by Mr Lane. The Code of Conduct included the following:
‘I, Edmond E Casper union number 282280 hereby agree to abide to the best of my capacity by the CFMEU Code of Conduct for union delegates as detailed below:
…
10. To ensure that all workers on site are financial members of the relevant union, and to receipt all monies received from members in the appropriate receipt book, and paid to the union office on a regular basis.
…
12. To contact the CFMEU area organiser in respect of any major problem and/or dispute and/or stoppage that has or may arise and to advise him/her of the progress of results of that dispute if they cannot attend.
…’Paragraph 10 of the CFMEU Code of Conduct for Union Delegates, and, in particular use of the word ‘ensure’, does not sit comfortably with the objects of Part XA of the Act.
Innovation Interiors’ engagement to carry out plastering work at the Fairy Meadow site dated back to May 2003. It appears to have had well over 30 men working for it at one time or another.
When Pro Finish Interiors was carrying out work for Lanskey at the Fairy Meadow site it would appear to have had about ten men working for it at one time or another. They included Glenn Suter, Barry Sindel, Norm Philipp (Norman Philipp Snr), Norman Philipp Jnr, Reinhard (‘Paul’) Philipp, Anthony Summers and Dimitrios Gontas.
On Wednesday 18 February 2004 Barry Sindel, Norm Philipp, Reinhard Philipp and Anthony Summers returned to work on the Fairy Meadow site but this time for Innovation Interiors. On this occasion they were joined by Tony Morgan, Geoff Harnett and Albert Lilley.
Barry Sindel, Norm Philipp, Reinhard Philipp, Anthony Summers, Tony Morgan, Geoff Harnett and Albert Lilley had all been working together for Pro Finish Interiors at the Wollongong site on the previous Monday.
It was Lanskey’s practice to record the names of newly inducted workers at the Fairy Meadow site on forms, printed in landscape, which made provision for the nomination of a ‘Company’ and for the insertion of details of ‘Sub-contractor Employee’.
In the case of Lanskey, induction was effected first thing in the morning by having newly arriving workers complete a form entitled ‘SITE PERSONELL (sic) REGISTER’, later ‘NEW EMPLOYEE DETAILS’, which made provision for a number of particulars to be inserted. For Lanskey the form was one page in length. In relation to Hansen Yuncken newly arriving workers were required to complete a similar form. In the Hansen Yuncken case the form was two pages in length and entitled ‘SITE INDUCTION FORM’. In the case of Hansen Yuncken there was no procedure for recording the names of individual workers on a progressive list in respect of each sub-contractor.
When Barry Sindel, Norm Philipp, Reinhard Philipp and Anthony Summers returned to the Fairy Meadow site on 18 February 2004 they were not then recorded as Innovation Interiors’ workers. Rather, Lanskey’s list of Pro Finish Interiors workers was updated by Mr Casper, with the addition of the names of Tony Morgan, Geoff Harnett and Albert Lilley, and then copied and adapted by him by the addition of asterisks on the copy, which he had made, against the names of Barry Sindel, Norm Philipp, Reinhard Philipp, Tony Morgan, Geoff Harnett and Albert Lilley. Another asterisk was added at the top of the copy reading:
‘18 Feb 04
ON LOAN TO
INNOVATION INTERIOR (sic)’At a later stage Mr Casper added an asterisk against Mr Summers’ name, but this was not recorded on the original copy which he made.
In point of fact, Pro Finish Interiors had no involvement at all in the work undertaken by these men upon their return to or arrival at the Fairy Meadow site on 18 February 2004. Each of the men, apart from Barry Sindel, appears to have invoiced Innovation Interiors for the work performed by them on 18 February 2004 at the rate of $33 per hour plus GST (cf the rate of $35 per hour plus GST previously charged to Pro Finish Interiors for work at the Fairy Meadow site). Barry Sindel only charged $32 per hour plus GST. Bryan Harnett, Geoff Harnett’s son, who commenced working for Innovation Interiors at the Fairy Meadow site on 19 February 2004, also charged $33 per hour plus GST.
Under s 8 of A New Tax System (Australian Business Number) Act 1999 (Cth) it was possible for entities that carried on enterprises in Australia to be provided with an Australian Business Number (‘ABN’). ‘Enterprise’ covered all business and trading activities. However, activities in a person’s capacity as an employee were excluded from those of an enterprise.
Each of Norm Philipp, Reinhard Philipp, Anthony Summers, Barry Sindel, Tony Morgan, Albert Lilley, Geoff Harnett and Bryan Harnett, carried on business as part of entities registered with their own ABNs.
Norm Philipp carried on business in partnership with his wife as N & M Philipp under ABN 19736995679, Reinhard Philipp carried on business in partnership with his wife as R & M M Philipp under ABN 26940466534 and Anthony Summers carried on business in partnership with Hua Ping as Ruse Linings under ABN 52589917303. Barry Sindel carried on business on his own account under ABN 48687228924.
Losses sustained by Norm Philipp, Reinhard Philipp and Anthony Summers
On Wednesday 18 February 2004 each of Norm Philipp, Reinhard Philipp, Anthony Summers, Barry Sindel, Tony Morgan, Albert Lilley and Geoff Harnett worked at the Fairy Meadow site for Innovation Interiors for eight hours. For reasons which will become clear, neither Norm Philipp nor Reinhard Philipp returned to the Fairy Meadow site after Wednesday 18 February 2004. Norm Philipp claims that he was, as a result of ‘incidents’ at the Fairy Meadow site on Wednesday 18 February 2004 out of work from and including Thursday 19 February 2004 until Tuesday 2 March 2004. He claims that his loss in respect of the period when he was out of work was approximately $2,740. I am satisfied that Norm Philipp sought, but was unable to obtain any, work for his business in the period 19 February 2004 – 2 March 2004. To the extent to which the loss sustained by his business may be attributed to ‘the incidents’ at the Fairy Meadow site on Wednesday 18 February 2004, that loss was in my opinion equal to $2,552, exclusive of GST, calculated as follows:
9 days x 8 hours x $33 per hour $2,376
2 days x 6 hours x $33 per hour $396
$2,772
Less fuel 11 days @ $20 per day $220
$2,552The above calculation proceeds on the premise that Mr Norm Philipp worked eight hours per day, five days a week and six hours a day on Saturdays with his business charging, as it did on 18 February 2004, $33 per hour at all relevant times.
The late Mr Reinhard Philipp’s evidence was that he was also out of work from and including Thursday 19 February 2004 to Tuesday 2 March 2004. He says that he lost a total of $3,850 in income excluding GST on the basis that he would have otherwise been working eight hours per day at $35 per hour for six days a week. To the extent to which the loss sustained by Mr Reinhard Philipp’s business may be attributed to the incidents at the Fairy Meadow site on Wednesday 18 February 2004, that loss was in my opinion equal to $2,904, exclusive of GST, calculated as follows:
11 days x 8 hours x $33 per hour (the rate which
he charged for work on 18 February 2004) $2,904Anthony Summers claims that as a result of incidents occurring at the Fairy Meadow site on Friday 20 February 2004 he found himself out of work from and including Saturday 21 February 2004 to Tuesday 2 March 2004. He claims that after allowing for the cost of fuel at $11.66 per day he suffered a loss of approximately $2,275. It seems to me that the loss which Mr Summers’ business sustained as a result of being out of work for the period mentioned was correctly calculated at $2,271, exclusive of GST, assuming that Mr Summers worked for eight hours per day six days a week as follows:
9 days x 8 hours x $33 per hour (the rate which
he charged for work on 18 – 20 February 2004) $2,376Less petrol for 9 days @ $11.66 per day equals approximately $105
Net loss $2,271The relief sought
In his application filed 27 July 2005 the applicant has sought numerous declarations in respect of alleged contraventions by the first, second, third and/or fourth respondents of s 298SC(c) of the Act, orders under s 298U of the Act imposing penalties on the first, second, third and fourth respondents in respect of conduct in contravention of s 298SC(c) of the Act, numerous declarations in respect of alleged contraventions by the first, second, third and/or fourth respondents of s 298S(2)(a) of the Act, orders under s 298U of the Act imposing penalties on the first, second, third and fourth respondents in respect of conduct in contravention of s 298S(2)(a) of the Act, orders under s 298U of the Act that the first, second, third and fourth respondents pay compensation to Mr Norm Philipp, Mr Reinhard Philipp and Mr Anthony Summers in respect of the alleged contraventions of s 298S(2)(a) of the Act, declarations that by certain conduct the first, second and fourth respondents contravened s 170NC of the Act, orders under s 170NF(1) of the Act imposing penalties on the first, second and fourth respondents in respect of their contraventions of s 170NC of the Act and injunctive relief in respect of further contraventions of ss 298SC(c), 298S(2)(a) and 170NC.
When senior counsel for the applicant opened the applicant’s case on 17 July 2006 he indicated that injunctive relief was no longer sought. In addition, in the course of his submissions on 6 September 2006 he informed the Court that allegations in respect of contraventions of s 298S(2)(a), as a result of conduct of the fourth respondent said to have taken place on or about 18 February 2004, were no longer pressed.
The alleged contraventions
This leaves for consideration the following alleged contraventions of the Act:
Section 298SC(c)
Third Respondent
(a) On Monday 19 January 2004 the third respondent made a false or misleading representation to each of Norm Philipp, Reinhard Philipp, Anthony Summers, Barry Sindel and Norman Philipp Jnr that he was obliged to join the first respondent and/or the second respondent in order to work on the Fairy Meadow site (see Application paragraph 2).
Fourth Respondent
(b) On Tuesday 17 February 2004 the fourth respondent made a false or misleading representation to Glenn Suter that each of Norm Philipp, Reinhard Philipp, Anthony Summers and Barry Sindel was obliged to join the first respondent and/or the second respondent in order to work on the Fairy Meadow site, the Wollongong site and any other site in the Wollongong area (see Application paragraph 3(a)).
(c) On Wednesday 18 February 2004 the fourth respondent made a false or misleading representation to Norm Philipp and Reinhard Philipp that each of Norm Philipp and Reinhard Philipp was obliged to join the first respondent and/or the second respondent in order to continue working on the Fairy Meadow site, or to work on the Wollongong site or any other site in Wollongong (see Application para 3(b)).
(d) On Wednesday 18 February 2004 the fourth respondent made a false or misleading representation to Anthony Summers that he was obliged to join the first respondent and/or the second respondent in order to continue working on the Fairy Meadow site, or to work on the Wollongong site (see Application para 3(c)).
First Respondent
(e) On Monday 19 January 2004, by the action of the third respondent referred to in (a) above, the first respondent made a false or misleading representation about the obligation of each of Norm Philipp, Reinhard Philipp, Anthony Summers, Barry Sindel and Norman Philipp Jnr to join the first respondent and/or the second respondent (see Application para 1(a)).
(f) On Tuesday 17 February 2004, by the action of the fourth respondent referred to in (b) above, the first respondent made a false or misleading representation to Glenn Suter about the obligation of each of Norm Philipp, Reinhard Phillip, Anthony Summers and Barry Sindel to join the first respondent and/or the second respondent (see Application para 1(b)).
(g) On Wednesday 18 February 2004, by the action of the fourth respondent referred to in (c) above, the first respondent made a false or misleading representation about the obligation of each of Norm Philipp and Reinhard Philipp to join the first respondent and/or the second respondent (see Application para 1(c)).
(h) On Wednesday 18 February 2004, by the action of the fourth respondent referred to in (d) above the first respondent made a false or misleading representation about the obligation of Anthony Summers to join the first respondent and/or the second respondent (see Application para 1(d)).
Second Respondent
(i) On Monday 19 January 2004, by the action of the third respondent referred to in (a) above, the second respondent made a false or misleading representation about the obligation of each of Norm Philipp, Reinhard Philipp, Anthony Summers, Barry Sindel and Norman Philipp Jnr to join the first respondent and/or the second respondent (see Application para 1(a)).
(j) On Tuesday 17 February 2004, by the action of the fourth respondent referred to in (b) above, the second respondent made a false or misleading representation to Glenn Suter about the obligation of each of Norm Philipp, Reinhard Phillip, Anthony Summers and Barry Sindel to join the first respondent and/or the second respondent (see Application para 1(b)).
(k) On Wednesday 18 February 2004, by the action of the fourth respondent referred to in (c) above, the second respondent made a false or misleading representation about the obligation of each of Norm Philipp and Reinhard Philipp to join the first respondent and/or the second respondent (see Application para 1(c)).
(l) On Wednesday 18 February 2004, by the action of the fourth respondent referred to in (d) above the second respondent made a false or misleading representation about the obligation of Anthony Summers to join the first respondent and/or the second respondent (see Application para 1(d)).
Section 298S(2)(a)
Third Respondent
(m) On Wednesday 18 February 2004 the third respondent advised, encouraged or incited Mr Nenad Djukic and Innovation Interiors to refuse to make use of or to agree to make use of services said to have been offered by each of Norm Philipp, Reinhard Philipp, Anthony Summers, Barry Sindel and Norman Philipp Jnr because each of Norm Philipp, Reinhard Philipp, Anthony Summers, Barry Sindel and Norman Philipp Jnr was not a member of the first respondent and/or the second respondent (see Application para 7).
First Respondent
(n) On Wednesday 18 February 2004, by the action of the third respondent referred to in (m) above, the first respondent advised encouraged or incited Mr Nenad Djukic and Innovation Interiors to refuse to make use of or to agree to make use of the services said to have been offered by each of Norm Philipp, Reinhard Philipp, Anthony Summers, Barry Sindel and Norman Philipp Jnr because each of Norm Philipp, Reinhard Philipp, Anthony Summers, Barry Sindel and Norman Philipp Jnr was not a member of the first respondent and/or the second respondent (see Application para 6(a)).
Second Respondent
(o) On Wednesday 18 February 2004, by the action of the third respondent referred to in (m) above, the second respondent advised encouraged or incited Mr Nenad Djukic and Innovation Interiors to refuse to make use of or to agree to make use of the services said to have been offered by each of Norm Philipp, Reinhard Philipp, Anthony Summers, Barry Sindel and Norman Philipp Jnr because each of Norm Philipp, Reinhard Philipp, Anthony Summers, Barry Sindel and Norman Philipp Jnr was not a member of the first respondent and/or the second respondent (see Application para 6(b)).
Section 170NC
Fourth Respondent
(p) On Tuesday 17 February 2004 the fourth respondent threatened to take industrial action or other action with intent to coerce Pro Finish Interiors to agree to make an agreement under Division 2 or 3 of Part VI B of the Act between the first respondent and/or the second respondent and Pro Finish Interiors (see Application para 13).
First Respondent
(q) On Tuesday 17 February 2004, by the conduct of the fourth respondent referred to in (p) above, the first respondent threatened to take industrial action or other action with intent to coerce Glenn Suter and/or Pro Finish Interiors to agree to make an agreement under Division 2 or 3 of Part VI B of the Act between the first respondent and/or the second respondent and Pro Finish Interiors (see Application para 12(a)).
Second Respondent
(r) On Tuesday 17 February 2004, by the conduct of the fourth respondent referred to in (p) above, the second respondent threatened to take industrial action or other action with intent to coerce Glenn Suter and/or Pro Finish Interiors to agree to make an agreement under Division 2 or 3 of Part VI B of the Act between the first respondent and/or the second respondent and Pro Finish Interiors (see Application para 12(b)).
Notwithstanding an element of confusion arising from the cross-referencing of claims in the Application to various paragraphs in the Statement of Claim and the definitions of expressions used therein, the parties are agreed that the above formulations of the alleged contraventions are the ones which the Court is required to address.
In relation to the claimed contraventions by the first and second respondents, the applicant’s case is that the relevant contraventions occurred by virtue of conduct engaged in by the third respondent or the fourth respondent as the case may be. Whilst no formal concession was made that any conduct engaged in by the third or fourth respondent in contravention of the Act would give rise to contraventions by the first and second respondents, no argument was advanced by counsel for the respondents that liability on a representational basis could be visited on one only of the Union bodies. The only distinction to which attention was drawn related to the alleged contraventions of s 170 NC of the Act in respect of which counsel for the respondents submitted that it would be ‘hard to think that the State organisation would have an interest in coercing anybody to make a Federal agreement’.
The Union’s Constitution and Rules
Clause 28 of the Constitution of the first respondent made provision for State branches. Clause 28(i) provided:
‘28(i)There shall be branches of the Union in the States of Queensland, New South Wales, Victoria, Tasmania, Western Australia, South Australia, and in the Australian Capital Territory, and in such other States or places as may be decided.’
Under the Constitution provision was made for branch rules. In relation to membership of branches clause 44 of the Constitution provided:
‘44All members of all Divisional Branches within the State or Territory shall be members of the Branch with the same status of membership as is held in the Divisional Branch.’
The Constitution provided for an unlimited number of persons, whether male or female, to constitute the Union who were:
‘(1)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 … follow an occupation in or in connection with the industry or industries of:
and/or
(3)who, otherwise than as employees …, are engaged in the industrial pursuit or pursuits of:
(i)carpenters or joiners … tilelayers … stonemasons … bricklayers …
…
(ii)the process or trade or business as a: plasterer, fixer … employed in internal and/or external plastering, …’
The Constitution provided for candidates for membership to make application to the National Secretary, the Division covering the occupation or industry in which the persons were employed, the Branch covering the area in which the persons were employed or resided, or the Divisional Branch covering the industry or occupation in which the persons were employed, usually employed or desirous of being employed and the area in which the persons resided or were employed and further for such applications to be made and dealt with in the manner and subject to the conditions, including conditions as to any probationary period, required by the rules of the Division. The Constitution provided in clause 7(vii):
‘7(vii)A member shall, when applying for membership be informed of the financial obligations arising from membership and the circumstances, and the manner, in which a member may resign from the organisation and shall be informed of such in writing.’
There is no evidence in relation to the Union’s discharge of its obligations under clause 7(vii) in this case. The printed material appearing on the 2003-4 standard CFMEU Membership Application form set out above at [40] does not appear to satisfy this requirement, although that may have been its intended purpose.
Clause 8(ii) of the Constitution dealt with members who were not financial. It provided:
‘8(ii)Any member who has failed to pay the entrance fees, or contributions, levies and fines imposed in accordance with the rules of the union on or before the date specified in such rules, shall be deemed to be unfinancial, and shall not be eligible to receive any benefits, participate in any deliberations, propose or second any new applicant for admission or exercise any authority or any membership rights, provided that the rules may provide that some members or some class or classes of members may vote in a ballot and/or may differentiate between classes of members as to the amount of any contribution and/or entrance fee.’
Resignation from membership of the Union was dealt with in clause 11 of the Constitution as follows:
‘11(1)A member may resign from membership of the Union by a written notice addressed and delivered to the Divisional Branch Secretary or other officer of the Divisional Branch authorised to receive such correspondence.
(2) The notice of resignation will take effect where that member,
(a) ceases to be eligible to become a member of the Union:
(i)on the day on which the notice is received by the Union; or
(ii)on the day specified in the notice, which is a day not earlier than the day when the member ceases to be eligible to be a member;
whichever is later; or
(b) in any other case:
(i)at the end of 2 weeks after the notice is received by the Union; or
(ii)on the day specified in the notice;
whichever is later.
(3)All contributions and or levies due in relation to the period before the members resignation took effect are to be paid. Where the member fails to do so the Union may prosecute such member in the appropriate court for the recovery of that amount.
(4)A notice delivered to the person mentioned in sub-rule (1) shall be taken to have been received by the Union when it was delivered.
(5)A notice of resignation that has been received by the Union is not invalid because it was not addressed and delivered in accordance with sub-rule (1).
(6)A resignation from membership of the union is valid even if it is not effected in accordance with this rule if the member is informed in writing by or on behalf of the union that the resignation has been accepted.’
The Registration and Accountability provisions of the Act
Termination of membership is covered by ss 171 – 174 of Schedule 1B to the Act. Relevantly ss 172 and 174 provided:
‘172(1) If:
(a)the rules of an organisation require a member to pay dues in relation to the person’s membership of the organisation; and
(b)the member has not paid the amount; and
(c)a continuous period of 24 months has elapsed since the amount became payable; and
(d)the member’s name has not been removed from the register kept by the organisation under paragraph 230(1)(a);
the organisation must remove the name and postal address of the member from the register within 12 months after the end of the 24 month period.
(2) In calculating a period for the purposes of paragraph (1)(c), any period in relation to which the member was not required by the rules of the organisation to pay the dues is to be disregarded.
(3) A person whose name is removed from the register under this section ceases to be a member of the organisation on the day his or her name is removed. This subsection has effect in spite of anything in the rules of the organisation.
…
174(1)A member of an organisation may resign from membership by written notice addressed and delivered to a person designated for the purpose in the rules of the organisation or a branch of the organisation.
(2) A notice of resignation from membership of an organisation takes effect:
…
(b)…:
(i)at the end of 2 weeks, or such shorter period as is specified in the rules of the organisation, after the notice is received by the organisation; or
(ii)on the day specified in the notice;
whichever is later.’
(3) Any dues payable but not paid by a former member of an organisation, in relation to a period before the member’s resignation from the organisation took effect, may be sued for and recovered in the name of the organisation, in a court of competent jurisdiction, as a debt due to the organisation.
(4) A notice delivered to the person mentioned in subsection (1) is taken to have been received by the organisation when it was delivered.
(5) A notice of resignation that has been received by the organisation is not invalid because it was not addressed and delivered in accordance with subsection (1).
(6) A resignation from membership of an organisation is valid even if it is not effected in accordance with this section if the member is informed in writing by or on behalf of the organisation that the resignation has been accepted.’
Union membership status
It may be observed that the statement in the standard CFMEU membership application form that ‘Members wishing to resign from the union must be financial …’ (see [40]) does not sit comfortably with the stipulations in respect of resignation from the Union as set out in clause 11 of the Constitution of the first respondent or s 174 of Schedule 1B to the Act.
Be that as it may, it is important, for present purposes, that the Union membership status of Norm Philipp, Reinhard Philipp, Anthony Summers, Barry Sindel and Norman Philipp Jnr in January/February 2004 be addressed.
It seems clear that at some time or other Norm Philipp, Reinhard Philipp, Anthony Summers, Barry Sindel and Norman Philipp Jnr had all been members of the Union. However, by 18 February 2004 Anthony Summers was no longer a member of the Union. Furthermore, the Union did not consider him or have reason to consider him at that time to be a member. On 31 May 2001 the Union wrote to Mr Summers informing him that his application to resign had been received and processed and that his membership had been finalised. He was issued with a ‘Clearance’ certificate recording that he had paid all fees, fines, levies and dues and was ‘Cleared from the Union’ The respective Union numbers of the other workers appear to have been Norm Philipp - 292276, Reinhard Philipp - P10157, Barry Sindel - 223139 and Norman Philipp Jnr - 292275.
It would appear that Mr Norm Philipp became a member of the Union on 11 May 2000. On 19 November 2001 a payment was made by him in the amount of $479.10 covering ‘Dues’ of $442.07 and GST of $37.03. For this payment he received an ‘OK Card’ from the Construction, Forestry, Mining and Energy Union, Construction & General Division, NSW Branch for the period 1 October 2001 to 31 March 2002.
Mr Norm Philipp’s evidence, which I accept, is that on the day after he became a financial member of the Union in 2001, i.e. 20 November 2001, he presented a resignation letter to the Union delegate at the site at which he was then working – the Royal Prince Alfred Hospital site at Camperdown in Sydney. Conversation is said to have followed which demonstrated a reluctance on the part of the delegate to accept Mr Norm Philipp’s letter of resignation. Mr Norm Philipp then said words to the effect, ‘Mate, that’s my letter of resignation, you didn’t accept it, I’m not paying a cent more’.
Under s 172 of Schedule 1B to the Act, Mr Norm Philipp’s membership of the Union would have continued until at least 31 March 2004 unless his letter of resignation, delivered by him to the Union delegate at the Royal Prince Alfred Hospital site on 20 November 2001, was effective in bringing his membership of the Union to an end.
In light of subclauses 11(1) and 11(5) of the Constitution of the Union and s 174(1) and 174(5) of Schedule 1B to the Act and the principles enunciated in Capper v Thorpe (1998) 194 CLR 342 at [21], the question is whether Mr Norm Philipp’s letter of resignation, given by him to the Union delegate, was ‘received by’ the Union. Given the authority conferred on delegates by the Rules and the terms of the Union’s Code of Conduct for Union Delegates, it is clear that delegates were to provide an interface between workers on site and the organisation in relation to membership of the Union such that it was within the authority of a delegate to receive, on behalf of the Union, a letter of resignation from a member.
Under clause 11 of the Union’s Constitution and s 174 of Schedule 1B to the Act it was not necessary for Mr Norm Philipp to be ‘financial’ in order for him to lawfully resign his membership of the Union, although he appears to have been financial at the relevant time, in any event.
Accordingly, as the Union ‘received’ notice of Mr Norm Philipp’s resignation on 20 November 2001, that resignation took effect two weeks later i.e. on 4 December 2001.
Thus, Mr Norm Philipp was not a member of the Union in January/February 2004.
Whatever Mr Norm Philipp’s membership status may have been at the time, he did not, when undertaking site induction at the Fairy Meadow site on Monday 19 January 2004, with a view to undertaking plastering work for Pro Finish Interiors, suggest that he was a member of the Union, nor did he do so when re-inducted at the Fairy Meadow site on Wednesday 18 February 2004 with a view to carrying out plastering work for Innovation Interiors. However, Mr Philipp conceded that on 18 February he may have said to Mr Casper ‘You know that I’m in the Union’, in the belief that his name would still be recorded on the Union’s books.
At about 9.13 am on Wednesday 18 February 2004 Mr Casper proceeded to send a two page facsimile to Janet McIntosh at the CFMEU office. Mr Casper’s fax cover sheet read as follows:
‘PROFINISH GYPROCK EMPLOYEES
1)PLEASE CHECK THEIR UNION MEMBERSHIPS AND FINANCIAL STATUS
2) FILL IN THE BLANKS ON THE FORM
3) FAX 1 COPY TO ME, GIVE ONE TO MICK LANE.
thanks
[signed] Skip’
The second page of the facsimile was the copy of Lanksey’s form, purportedly listing the names of Pro Finish Interiors’ workers, which had been adapted by Mr Casper by the addition of asterisks as mentioned above at [65], to identify workers ‘ON LOAN TO’ Innovation Interiors.
Janet McIntosh proceeded to record details under the column headings ‘Union Number’ and ‘Financial’ on the edited Lanskey form against all the names, whether marked by an asterisk to record their perceived ‘ON LOAN’ status or not. On the form transmitted to Janet McIntosh there was no indication that Glenn Suter, Barry Sindel, Norman Philipp Jnr, Norm Philipp, Reinhard Philipp, Anthony Summers or Dimitrios Gontas were members of the Union. Janet McIntosh’s return facsimile to Mr Casper, with all the membership and financial status details recorded on the CFMEU office copy of page 2 of Mr Casper’s facsimile, was sent to him at 10.48 am on Wednesday 18 February 2004.
Presumably, Mr Casper made his inquiry of the CFMEU office because of the fact that none of Glenn Suter, Barry Sindel, Norman Philipp Jnr, Norm Philipp, Reinhard Philipp and Anthony Summers had indicated that they were members of the Union on the Lanskey Site Personell (sic) forms which they had completed. By way of contrast, Mr Gontas’s ‘New Employee Details’ form had been completed by him so as to indicate, when given a ‘Yes/No’ alternative, that he was not a member of the Union.
No doubt Mr Casper was keen to ascertain the membership status of those workers who were coming to the site to work for Innovation Interiors and about whose membership status he had no knowledge, even though when they, or some of them, had previously worked at the Fairy Meadow site for Pro Finish Interiors, a similar inquiry had not, apparently, been made. Apart from other considerations, Mr Casper had a proven track record of seeking to secure and securing new members for the Union and of having unfinancial members brought up to a financial status.
In this context it may be noted that this was not the first occasion when Mr Casper had submitted a list of workers’ names to the CFMEU office to ascertain their Union membership and financial status. He assiduously pursued the identity of workers who were not members of the Union.
At 10.26 am on 18 July 2003 Mr Casper had submitted a list of names to the CFMEU office under the heading ‘INNOVATIONS (sic) INTERIORS’ with five column headings reading ‘SURNAME’, ‘FIRST’, ‘D.O.B.’, ‘UNION #’ and ‘FINANCIAL’. The columns under the headings ‘UNION #’ and ‘FINANCIAL’ as submitted by Mr Casper to the CFMEU office were blank at the time. At the foot of the form which listed some 12 Innovation Interiors workers’ names there was a message from Mr Casper to Janet McIntosh’s predecessor, ‘Tanya’, reading:
‘This Company is starting on site next MONDAY. I would like to check these fellows Financial Status and have it ASAP.
thanks
[signed] Skip Casper’Tanya responded by indicating that five people on the list were ‘Not Mbr’.
Where Union dues were outstanding, that was also noted. The facsimile response from the CFMEU office to Mr Casper’s facsimile of 18 July 2003 was transmitted to him at 11.35 am on 18 July 2003.
Another similar document headed ‘INNOVATION INTERIOR (sic) GYPROCK’ would appear to have been brought into existence by Mr Casper in about November 2003. That document had column headings reading ‘NAME’, ‘DOB’ and ‘Member #’. There appear to have been approximately 29 names recorded on that list. The copy of the list which is in evidence has been edited with notations, presumably added by staff at the CFMEU office or by Mr Casper with the assistance of the CFMEU office, where Union dues are said to have been owing. In other instances the letters ‘OK’ have been added against names or the word ‘Deal’ has been added against a name. Some seven or eight names appear to have been deleted, however it is unclear from the photocopy which is in evidence whether the marking indicates an intended deletion of a name from the list or, alternatively, the application of a coloured highlighter for some reason which, in the photocopy, has come out in black as if it were an intended deletion.
After Mr Casper received Janet McIntosh’s facsimile from the CFMEU office which was transmitted at 10.48 am on Wednesday 18 February 2004, he proceeded to add an asterisk to his copy of the facsimile so received against the name of Anthony Summers.
Upon receipt of Janet McIntosh’s facsimile it would have been apparent to Mr Casper that Anthony Summers was not, according to the Union, a member of the Union.
Even though Mr Norm Philipp was no longer a member of the Union for the reasons indicated above, Mr Casper might have reasonably believed him to still be a member as at 18 February 2004, albeit one who was significantly unfinancial. Janet McIntosh had indicated that he was then indebted to the Union in the sum of $735.
In the case of Reinhard Philipp, Mr Casper would have had reason to believe that he was a member of the Union as at 18 February 2004, but one who was very significantly indebted to the Union for unpaid dues. Janet McIntosh had recorded against Mr Reinhard Philipp’s name that he was indebted to the Union in the sum of $3,080.
In relation to Mr Summers, Janet McIntosh had noted an amount of $230 against the letters ‘N/M’, which I understand to have been an indication that Mr Summers was a non-member. Presumably the figure of $230 was added to indicate how much Mr Summers would have to pay to become a member of the Union.
In relation to Barry Sindel the details recorded by Janet McIntosh might have led Mr Casper to believe that he was still a member of the Union, as at 18 February 2004, albeit one who was significantly unfinancial with an indebtedness to the Union in the amount of $1,151.30. Against his name Janet McIntosh recorded the notation ‘DEAL CR’. When Mr Sindel originally worked for Innovation Interiors at the Fairy Meadow site in about November 2003 there was no apparent disclosure by him that he was a member of the Union. At that stage a Lanskey form was completed for the ‘Company:’ ‘Innovation Interiors’ which had the heading ‘Sub-contractor Employee’ printed on it. The list of names of Innovation Interiors’ workers recorded approximately 28 names with details under some nine column headings against the individual names. The last two column headings were ‘Union Number’ and ‘Financial’. Against Mr Sindel’s name no Union number was recorded although a figure of $368 appeared in the column headed ‘Financial’ and adjacent to that the letters ‘S.T.’.
When Mr Sindel returned to the Fairy Meadow site to undertake work for Pro Finish Interiors on 19 January 2004 he was re-inducted, but with his original induction number. No details were provided indicating that Mr Sindel was a Union member. However, on his ‘Site Personnel (sic) Register’ form Mr Casper had later added against the word ‘Name’ the notation ‘CFMEU’ and adjacent to that he recorded
‘Contact Brian Redfern
about Resignation
Details’Mr Redfern was an organiser with the Union working in Sydney.
It is apparent that whilst Mr Sindel had been a member of the Union, he had become significantly unfinancial and had resigned his membership. It would appear that as at 18 February 2004 a deal had been done concerning his liability to the Union in respect of his outstanding dues. Thereafter, on 20 March 2004 Mr Sindel made a payment of $230 to the Union which resulted in Mr Casper issuing him with a receipt as a new member endorsed as follows:
‘Resigned/Returning as New
Extingwish (sic) all prior debts
Deal As per Brian Redfern/
Mick
Lane
OK to 1 Sept 04’Whatever may have been Mr Casper’s understanding as to the Union membership status of Barry Sindel, Norm Philipp, Reinhard Philipp and Anthony Summers it is clear that before he received Janet McIntosh’s return facsimile transmitted at 10.48 am on Wednesday 18 February 2004, he was of the view that they were not members.
When he inducted Norm Philipp, Reinhard Philipp, Norman Philipp Jnr and Barry Sindel at the Fairy Meadow site on the morning of Monday 19 January 2004 he handed Union membership application forms to each of them. Acknowledging that he had a poor recollection of the induction meeting on the morning of 19 January 2004, Mr Casper nevertheless conceded that he handed out membership application forms to those persons whom he understood were not members of the Union and that he asked them to fill them out.
Mr Norm Philipp responded by saying ‘I’m not filling that out, mate, I don’t have to be in the Union’. Mr Reinhard Philipp said ‘I’m not interested in re-joining the Union, it’s against my religion. You don’t have to be in it.’
When Anthony Summers was inducted by Mr Casper at the Fairy Meadow site on the morning of Wednesday 21 January 2004 Mr Casper asked him whether he was a Union member. When Mr Summers replied ‘No’, Mr Casper said ‘Why not?’, to which Mr Summers replied ‘I used to be a member, but I’m too old for all that now’. Mr Summers had previously been a member of the Union on two separate occasions.
Notwithstanding Mr Casper’s then understanding that Norm Philipp, Reinhard Philipp, Barry Sindel and Anthony Summers were not members of the Union in mid January 2004, they were nevertheless, permitted to work at the Fairy Meadow site through to the end of January when Pro Finish Interiors’ work was essentially complete, and, in the case of Mr Anthony Summers, he was permitted to execute further work for Pro Finish Interiors on 5 and 6 February 2004 as well.
The productivity of independent contractors
At a meeting attended by Messrs McEwan and Bowman of Hansen Yuncken and Messrs Repas and Suter of Pro Finish Interiors at the Wollongong site on Tuesday 17 February 2004 discussion took place in relation to the issue of whether it was preferable for Gyprock Plasterers to be engaged who worked as independent contractors under ABNs rather than as employees. Mr Suter said at the meeting:
‘Roughly only 20 per cent of gyprockers in Wollongong are employees, the rest are all working on ABN.’
Mr McEwan made a file note in respect of the matters discussed at the meeting in which he recorded, amongst other things:
‘- Site Delegate Skip Jaspar (sic) issued Rates of Pay for CW [presumably contract workers] on ABN at Fairy Meadow job → Precedence ?
- Approx. 20% of gyprockers are employed on wages in Wollongong (according to Glen)’In relation to the merits of engaging subcontract workers on ABNs or employees working on wages Mr Boyd, Innovation Interiors’ site foreman expressed certain views. He was a plasterer employed by Innovation Interiors who was also a member of the Union. When the Pro Finish Interiors’ workers were undertaking gyprock plastering work in Block A of the Northgate Apartments Building on the Fairy Meadow site in January Mr Boyd had a conversation with Mr Suter in relation to the basis on which they were engaged, namely as independent contractors working under ABNs. However, even before his conversation with Mr Suter, Mr Boyd had formed the view that the Pro Finish Interiors’ workers were subcontractors working under ABNs. He formed this view because ‘ABN or subcontractors … work a lot better and faster than a person on wages, the majority of them’.
Mr Casper’s pursuit of new Union members
After receiving Tanya’s facsimile from the CFMEU office which was transmitted at 11:35 am on 18 July 2003 Mr Casper was seized of the fact that Ranko Bojanic, Luka Bojanic, Predrag Djukic and Dusan Ponorac were non-members of the Union. By Friday 25 of July 2003 he had secured each of them as new members of the Union. On that date he issued receipts to each of them in respect of the payment of their respective Union dues of $218 each.
At some stage four other workers joined Innovation Interiors workforce who were not members of the Union namely Terry King, Nikola Mijakovac, Gary Kernan and Zarko Romic. By 22 September 2003 each of these Innovation Interiors’ workers had become members of the Union, receipts having been issued to them on that date for payment of their Union dues of $225 each.
On 22 September 2003 Mr Casper also issued a receipt to Stevo Pjevac who had been recorded on his list of Innovation Interiors’ workers as a non-member. Apparently Mr Pjevac had joined the Union on 29 May 2000 and resigned in 2001 owing money to the Union. With the approval of Mick Lane, Mr Pjevac paid $225 of his outstanding dues totalling $360, rendering him paid up and ‘OK’ to 1 April 2004 as a result of a ‘deal’. It would appear that Mr Pjevac’s payment of $225 was effected by an Innovation Interiors’ cheque.
Another Innovation Interiors’ worker whose name was recorded upon one of Mr Casper’s running lists for that company was Dean Webb. It would appear that on 20 November 2003 Mr Casper issued a receipt to Dean Webb for the payment of $225 covering his joining fee and six months dues as a new member of the Union. On the same day, Mr Casper issued a receipt to Mr Kane Rogers, another Innovation Interiors’ worker, for $225 to cover his joining fee and his dues for the first six months of his membership.
On 26 November 2003, Mr Casper received a payment of $190 from Joe McNamara, another Innovation Interiors’ worker, recording on his receipt ‘Deal as per Mick Lane. Credit Bal OK to 1/4/04’.
In relation to signing up new members, and in particular Mr Predrag Djukic, Mr Casper’s evidence was:
Q‘That [referring to page 117 of Exhibit A1] would seem to suggest that you enrolled him into the union in the first week on which Innovation Interiors was working on the site?’
A‘Approximately then, yes, by the date of the receipt.’
Q‘Is the date of the receipt the date the person is signed into the union or may it be a day or two later after the person signs their application form?’
A‘It may be a day or two later. I give them – they’re given a chance to join on their own if they would like so they don’t have to join immediately.’ (emphasis added)
Monday 19 January 2004
Mr Lane’s evidence is that in the early stages of work at the Fairy Meadow site and prior to the engagement of Mr Casper by Lanskey, he ‘arranged for a CFMEU whole site meeting involving speakers from superannuation providers (Members Equity and CBUS), to discuss a range of general safety issues and to encourage union membership amongst the workers on site.’ According to Mr Lane a resolution was passed from the floor of the meeting to the effect that ‘everyone on site get financial with the Union’.
Following his employment by Lanskey Mr Casper was informed that members of the Union working on site at an earlier point in time had resolved to the effect that the site was to be a ‘Union site’ and had directed that all CFMEU delegates advise new workers on the site of such resolution.
Mr Casper says that his understanding of the earlier resolution was that it constituted ‘simply a direction that in my role as CFMEU site delegate I should encourage all workers to join the CFMEU if they were not already members’.
According to Mr Boyd the workers who came on to the site on 18 February 2004 ended up staying for a week to two weeks, apart from those who were told by him that their services were no longer needed in the manner indicated above. Such workers were Tony Morgan, Geoff Harnett and Albert Lilley.
According to Mr Boyd the four who were informed that their services were no longer needed were selected because Mr Boyd’s boss (Mr Ned Djukic) had informed him that they ‘did not want to join a union’.
Mr Boyd said that he’d never been put in such a position before. In the circumstances he took a witness with him when he informed the workers that he would have to let them go ‘because there is not enough work to keep you on’.
When Mr Norm Philipp left the Fairy Meadow site on Wednesday 18 February 2004 he said to Mr Boyd:
‘I know you got pressured by the union to get rid of us. I don’t blame you. If I got pressured like that, I’d think about doing the same thing you did. I don’t blame you at all’.
To which Mr Boyd replied:
‘Sorry’.
As indicated above, a ‘deal’ was done in respect of Mr Sindel’s membership of the Union with the result that he continued to work on the Fairy Meadow site along with Tony Morgan, Geoff Harnett, Albert Lilley and Bryan Harnett.
That night, Mr Boyd proceeded to ring Mr Suter to tell him what had happened and how he felt and what he could do about it.
At about 7:00 pm on 18 February 2004 Mr Suter telephoned Mr Summers following his discussion with Mr Boyd, a discussion with Mr Geoff Harnett, in which Mr Harnett had informed Mr Suter of a willingness on Mr Summers’ part to join the Union if it meant that he could stay on site and a further discussion with Mr Boyd, who indicated that if that was the case he could go back to work at the Fairy Meadow site on the following day. Mr Suter informed Mr Summers that he wanted him to go back to work at the Fairy Meadow site on the following day, which he proceeded to do. Indeed, Mr Summers worked at the Fairy Meadow site on both Thursday 19 February and Friday 20 February 2004.
On 19 February 2004 Mr Summers had a conversation with Mr Casper to the following effect:
Summers:‘I will probably join the union if I stay on this job, but the finances aren’t real good at the moment and we haven’t been paid yet, so I’m still waiting to get some cash. I’ll fix you up with that as soon as I get some money.’
Casper:‘Yeah.’
On the following day Mr Summers said to Mr Casper ‘I’ll fix you up on Monday’.
Notwithstanding this expression of willingness on the part of Mr Summers to join the union, Mr Summers said that he had a further conversation with Mr Boyd and Mr Tony Morgan on the afternoon of Friday 20 February 2004 in which Mr Boyd said words to the effect:
‘We’ve caught up with a fair bit of work, and we won’t need you or any of the other four workers from Innovation (sic) any longer. Frankly, the union doesn’t like people with ABN’s being on the job and being paid that way. They don’t like Innovation using people with ABN’s. They’ve turned a blind eye in the past because work was getting behind, but not now.’
In cross-examination Mr Summers conceded that the last sentence had not been included in his account of the relevant conversation in his statement of 20 May 2004. His explanation for the addition in his affidavit was that he had had more time to think about the details of the conversations. I accept Mr Summers’ explanation and also his evidence as to the terms of the conversation.
By virtue of the conversation between Mr Boyd and Messrs Norm Philipp, Reinhard Philipp, Anthony Summers and Barry Sindel on 18 February 2004, neither Mr Norm Philipp nor Mr Reinhard Philipp returned to the Fairy Meadow site after 18 February 2004. Mr Summers did in fact return to the site, notwithstanding the terms of the conversation, on Thursday 19 and Friday 20 February 2004, only to leave after the further conversation between Mr Boyd, Mr Morgan and Mr Summers on the afternoon of 20 February 2004.
Mr Sindel continued to work at the Fairy Meadow site.
Whilst I accept Mr Djukic’s evidence that Mr Casper said to him on 18 February 2004 words to the effect ‘I don’t want these four people [referring to Mr Norm Philipp, Mr Reinhard Philipp, Mr Anthony Summers and Mr Barry Sindel] on site. I was abused and swore at’ and I further accept that Mr Djukic told Mr Boyd on that day ‘Skip will not allow us to keep the new four workers on site’, nevertheless there is no evidence that Mr Casper had said to Mr Djukic that he did not want Mr Norm Philipp, Mr Reinhard Philipp, Mr Anthony Summers and Mr Barry Sindel on the Fairy Meadow site because they did not want to join the Union. Mr Boyd may well have been so informed by Mr Djukic but there is no evidence to justify a finding that Mr Djukic was so informed by Mr Casper.
Section 298SC(c)
The respondents submit that the Court may not find that s 298SC(c) has been contravened unless the relevant representation was intentionally false or intentionally misleading.
Whilst the wording of s 298SC is not identical to that employed in s 52 of the Trade Practices Act 1974 (Cth), there is a sufficient correspondence between the two to enable a conclusion to be drawn that it is unnecessary to establish an intent on the part of the alleged contravener to make a false or misleading misrepresentation (see Hornsby Building Information Centre Pty Limited v Sydney Building Information Centre Limited (1978) 140 CLR 216 at 228 and Brown v Jam Factory Pty Limited (1981) 53 FLR 340 at 349).
It must be acknowledged that the word ‘false’, when viewed in isolation, is a latently ambiguous one (see per Deane, Dawson and Gaudron JJ in Murphy v Farmer (‘Murphy’) (1988) 165 CLR 19 at 26). ‘False’ is not a precise adjective (per Brennan and Toohey JJ in Murphy at 22).
‘False’ can mean merely ‘untrue’ or ‘wrong’, or it can involve both subjective and objective elements and mean ‘purposely untrue’ (per Deane, Dawson and Gaudron JJ in Murphy at 26).
By a majority of three to two, the High Court in Murphy held that ‘false’ where used in s 229(1)(i) of the Customs Act 2001 (Cth) (‘the Customs Act’) meant ‘purposely untrue’. Section 229(1)(i) relevantly provided:
‘The following goods shall be forfeited to the Crown:
…(i)all goods in respect of which an entry invoice declaration answer statement or representation which is false or wilfully misleading in any particular has been delivered made or produced …’
Brennan and Toohey JJ, who were in the minority, considered the juxtaposition of the words ‘false’ and ‘wilfully misleading’ and the absence of any qualifying adjective for the former was a strong argument for the proposition that false meant no more than erroneous in fact.
The majority considered that, ‘false’ in s 229(1)(i) could also be read in congruence with, rather than in contrast to, the neighbouring phrase ‘wilfully misleading’ in which case it would have been an exercise in tautology to have inserted the word ‘wilfully’ before it.
In the result, the majority construed ‘false’ as meaning purposely untrue, for the reason that a finding that an entry for home consumption was false would result in the ‘draconian step of imposing automatic forfeiture as a penalty for “any” wrong “entry invoice declaration answer statement or representation” regardless of whether the wrong information was provided as the result of an innocent mistake or excusable ignorance’. It held that such a result should not be taken to have been intended by the legislature unless the relevant enactment distinctly so provided.
In Murphy, the respondent, Farmer, had been required to answer in writing certain questions on a customs form. The answer he gave to one of the questions was wrong, but not deliberately or intentionally so. The consequences of a finding of falsity would have resulted in the forfeiture of a Porsche motor vehicle, the subject of the entry, had it not been for the lodgement of a bond to secure the release of the vehicle.
In the case of a contravention of s 298SC(c), the Court has a discretion to impose a pecuniary penalty under s 298U(a). Unlike the Customs Act, the Act contains no provision for a default consequence such as automatic forfeiture of property in the event that a false or misleading representation is made.
In the context in which it is used, I am satisfied that ‘false’ means no more than erroneous in fact. Similarly, no element of intent is required under s 298SC before a representation can be found to have been misleading.
Section 298SC proscribes the making of representations which are false in the sense of being untrue and, what might be thought to be a lesser form of transgression, representations that are misleading.
An additional reason for reaching the above conclusion is that in s 4(7) of the Act, the legislature has drawn a clear distinction between provisions which concern matter that is ‘false or misleading’ and other provisions which concern matter that is ‘to the person’s knowledge false or misleading’ (compare, for example, s 298SC(c) and s 170WG(2) of the Act).
It is also significant to note the terms of s 298D(a), (b) and (c). These limitations on the application of Part XA and, accordingly, s 298SC are not cumulative. In the present case, the relevant conduct falls within s 298D(a) and/or (b). Accordingly, it was unnecessary to establish that the conduct, said to contravene s 298SC(c) was ‘carried out with a purpose or intent relating to a person’s membership or non-membership of an organisation’ for s 298SC(c) to apply to the conduct in question.
The respondents also submit that s 298SC(c) only applies where the relevant false or misleading misrepresentation about another person’s obligation to join an industrial association is made to that other person.
I am unable to so construe the language of s 298SC(c). Had the legislature intended such a limited operation, it might have provided:
‘A person must not make a false or misleading misrepresentation to another person about:
that person’s obligation to join an industrial association’
However it did not do so.
In my opinion s 298SC can be invoked where a representation is made to any person about ‘another person’s obligation to join an industrial association’.
Section 298S(2)
The applicant acknowledges that a partnership such as that of Hua Ping and Anthony Summers, trading as Ruse Linings, would not be eligible to join an industrial association, such as the first and/or second respondent, and accordingly, be an ‘eligible person’ within the meaning of s 298S(1) of the Act.
However, the applicant submits that the individual partners or, at least in the case of Ruse Linings, Mr Summers, would be an eligible person.
It seems clear to me that, whilst Mr Summers may have been an ‘eligible person’, nevertheless, there could be no ‘discriminatory action’ within the meaning of s 298S(1) in relation to him unless there was evidence that he had offered his services, as opposed to those of Ruse Linings, to, relevantly, Innovation Interiors.
There is no such evidence in the present case. It seems clear that in relation to Mr Summers, his services were simply not on offer. Rather, Ruse Linings, which was not an eligible person, offered its services on the basis that Mr Summers would be the person undertaking the performance of its contractual obligations.
Similar considerations would apply in respect of the partnerships of N & M Philipp and R & M M Philipp referred to at [68]. Barry Sindel was in a different position as he was a sole trader.
Alleged contraventions of s 298SC(c)
Adopting the same alphabetical identification as provided in paragraph [74] for the alleged contraventions:
(a) Mr Casper did make a representation on 19 January 2004 to the effect that in order to work on the Fairy Meadow site workers were obliged to join the first respondent and/or second respondent. Such a representation was false or misleading in that it derogated from the freedom of association for which the Act provided. See also s 209(2) of the Industrial Relations Act 1996 (NSW).
Such a representation was made to each of Norm Philipp, Reinhard Philipp, Barry Sindel and Norman Philipp Jnr. No such representation was made on 19 January 2004 to Anthony Summers as he did not attend the Fairy Meadow site until 21 January 2004.
Notwithstanding the applicant’s failure to prove that Mr Casper made the representation alleged to Mr Summers on 19 January 2004, I am satisfied that the applicant has established a contravention of s 298SC(c) by Mr Casper in respect of the making of the representation to each of Norm Philipp, Reinhard Philipp, Barry Sindel and Norman Philipp Jnr.
(b) The finding that Mr Lane said to Mr Suter on 17 February 2004 that the Wollongong site was ‘going to be a union site’, meaning thereby, one at which you couldn’t work if you didn’t have a Union membership ticket, does not support an alleged contravention of s 298SC(c) by Mr Lane for making a false or misleading misrepresentation to Mr Suter that each of Norm Philipp, Reinhard Philipp, Anthony Summers and Barry Sindel was obliged to join the first respondent and/or the second respondent in order to work on the Fairy Meadow site, the Wollongong site and any other site in the Wollongong area.
No mention was relevantly made of the Fairy Meadow site or ‘any other site in the Wollongong area’, nor was there any representation made to the effect that the Wollongong site was a Union site, with the consequence that, in order to work at such site, the relevant workers were obliged to join the first respondent and/or the second respondent.
(c) Mr Lane did make a representation on 18 February 2004 to Norm Philipp and Reinhard Philipp to the effect that each of them was obliged to join the first respondent and/or the second respondent in order to continue working on the Fairy Meadow site, or to work on the Wollongong site or any other site in Wollongong. Such a representation was false or misleading in that it derogated from the freedom of association for which the Act provided. See also s 209(2) of the Industrial Relations Act 1996 (NSW).
I am satisfied that the applicant has established a contravention of s 298SC(c) by Mr Lane in respect of the making of the representation.
(d) Mr Lane did make a representation on 18 February 2004 to Anthony Summers to the effect that he was obliged to join the first respondent and/or the second respondent in order to continue working on the Fairy Meadow site, or to work on the Wollongong site. Such a representation was false or misleading in that it derogated from the freedom of association for which the Act provided. See also s 209(2) of the Industrial Relations Act 1996 (NSW).
I am satisfied that the applicant has established a contravention of s 298SC(c) by Mr Lane in respect of the making of the representation.
(e) As a delegate, Mr Casper was an officer of the first respondent within the meaning of s 298B(1)(a) of the Act. Accordingly, action done by him as a delegate was taken to have been done by the first respondent also, in accordance with s 298B(2)(b) of the Act.
I am satisfied that by the action of Mr Casper referred to in paragraph (a) the first respondent contravened s 298SC(c) of the Act.
(f) The failure of the applicant to establish a contravention of s 298SC(c) of the Act by Mr Lane as alleged in paragraph (b) leads to the conclusion that there was no corresponding contravention of s 298SC(c) by the first respondent.
(g) Mr Lane was an officer of the first respondent within the meaning of s 298B(1)(b) of the Act. Accordingly, action done by him as an officer was taken to have been done by the first respondent in accordance with s 298B(2)(b) of the Act.
I am satisfied that by the action of Mr Lane referred to in paragraph (c) the first respondent contravened s 298SC(c) of the Act.
(h) Mr Lane was an officer of the first respondent within the meaning of s 298B(1)(b) of the Act. Accordingly, action done by him as an officer was taken to have been done by the first respondent in accordance with s 298B(2)(b) of the Act.
I am satisfied that by the action of Mr Lane referred to in paragraph (d) the first respondent contravened s 298SC(c) of the Act.
(i) As a delegate, Mr Casper was an officer of the second respondent within the meaning of s 298B(1)(a) of the Act. Accordingly, action done by him as a delegate was taken to have been done by the second respondent also, in accordance with s 298B(2)(b) of the Act.
I am satisfied that by the action of Mr Casper referred to in paragraph (a) the second respondent contravened s 298SC(c) of the Act.
(j) The failure of the applicant to establish a contravention of s 298SC(c) of the Act by Mr Lane as alleged in paragraph (b) leads to the conclusion that there was no corresponding contravention of s 298SC(c) by the second respondent.
(k) Mr Lane was an officer of the second respondent within the meaning of s 298B(1)(b) of the Act. Accordingly, action done by him as an officer was taken to have been done by the second respondent in accordance with s 298B(2)(b) of the Act.
I am satisfied that by the action of Mr Lane referred to in paragraph (c) the second respondent contravened s 298SC(c) of the Act.
(l) Mr Lane was an officer of the second respondent within the meaning of s 298B(1)(b) of the Act. Accordingly, action done by him as an officer was taken to have been done by the second respondent in accordance with s 298B(2)(b) of the Act.
I am satisfied that by the action of Mr Lane referred to in paragraph (d) the second respondent contravened s 298SC(c) of the Act.
Alleged contraventions of s 298S(2)(a)
Adopting the same alphabetical identification as provided in paragraph [74] for the alleged contraventions:
(m) As indicated above, none of Norm Philipp, Reinhard Philipp and Anthony Summers were eligible persons who offered their services to Innovation Interiors. They were each partners in firms which offered services, but such firms were not eligible persons within the meaning of s 298S(1) of the Act.
In relation to Norman Philipp Jnr, he may have been an eligible person, but he did not relevantly offer services to Innovation Interiors on or after 18 February 2004. His involvement in work at the Fairy Meadow site came to an end in January 2004 after he had executed work at the site as a subcontractor to Pro Finish Interiors.
Whilst it may be suggested that Mr Casper advised, encouraged or incited Mr Nenad Djukic and Innovation Interiors to refuse to make use of or to agree to make use of services offered by Barry Sindel because he was not a member of the first respondent and/or the second respondent, the fact is that I am not satisfied that Mr Casper said to Mr Djukic words to the effect that he did not want Norm Philipp, Reinhard Philipp, Anthony Summers and Barry Sindel on the Fairy Meadow site because they did not want to join the Union.
The evidence simply establishes that Mr Casper said to Mr Djukic words to the effect, ‘I don’t want these four people [referring to Norm Philipp, Reinhard Philipp, Anthony Summers and Barry Sindel] on site. I was abused and swore at’.
Such words do not constitute advice, encouragement or incitement to refuse to make use of or to agree to make use of services offered by the named persons or any of them because such persons or any of them were not members of the first respondent and/or the second respondent.
No relevant contravention of s 298S(2)(a) has been established.
(n) It follows from the findings in respect of paragraph (m) that no contravention of s 298S(2)(a) of the Act on the part of the first respondent has been established.
(o) It follows from the findings in respect of paragraph (m) that no contravention of s 298S(2)(a) of the Act on the part of the second respondent has been established.
Alleged contraventions of s 170NC
Adopting the same alphabetical identification as provided in paragraph [74] for the alleged contraventions:
(p) I do not consider that by answering counsel for the applicant’s question ‘And your purpose of saying the words that you said to Mr Suter or that I’ve suggested that you’ve said to Mr Suter in the meeting was to coerce him and Pro Finish into making an EBA with the CFMEU?’ with the words ‘A very minor part of the whole meeting’, Mr Lane was conceding that he had threatened to take industrial action or other action against Pro Finish Interiors with intent to coerce Pro Finish Interiors to agree to the making of an Enterprise Bargaining Agreement with the Union.
Mr Lane simply acknowledged that discussion with Mr Suter on 17 February 2004 about a possible EBA between the Union and Pro Finish Interiors constituted a minor part of the 17 February meeting.
It seems to me that at the meeting, the door was opened for further discussions in relation to an EBA which was more likely than not addressed at a further meeting between Messrs Repas and Suter from Pro Finish Interiors and Mr Lane on Friday 20 February 2004, when the draft EBA referred to at [218] was printed off.
The evidence does not disclose what conversation ensued about a possible EBA at that meeting.
Given the findings made by me at [240] – [241], no relevant contravention of s 170NC(1) of the Act, on the part of Mr Lane, has been established.
(q) It follows from the findings in respect of paragraph (p) that no contravention of s 170NC(1) of the Act on the part of the first respondent has been established.
(r) It follows from the findings in respect of paragraph (p) that no contravention of s 170NC(1) of the Act on the part of the second respondent has been established.
In the light of the foregoing, declarations should be made as follows:
(a) By making a representation on 19 January 2004 to each of Norm Philipp, Reinhard Philipp, Barry Sindel and Norman Philipp Jnr to the effect that in order to work on the Fairy Meadow site workers were obliged to join the first respondent and/or second respondent, the third respondent contravened s 298SC(c) of the Act.
(b) By making a representation on 18 February 2004 to Norm Philipp and Reinhard Philipp to the effect that in order to continue working on the Fairy Meadow site, or to work on the Wollongong site or any other site in Wollongong, each of Norm Philipp and Reinhard Philipp was obliged to join the first respondent and/or the second respondent, the fourth respondent contravened s 298SC(c) of the Act.
(c) By making a representation on Wednesday 18 February 2004 to Anthony Summers that in order to continue working on the Fairy Meadow site, or to work on the Wollongong site he was obliged to join the first respondent and/or the second respondent, the fourth respondent contravened s 298SC(c) of the Act.
(d) By the action of the third respondent referred to in (a) above, the first respondent contravened s 298SC(c) of the Act.
(e) By the action of the fourth respondent referred to in (b) above, the first respondent contravened s 298SC(c) of the Act.
(f) By the action of the fourth respondent referred to in (c) above, the first respondent contravened s 298SC(c) of the Act.
(g) By the action of the third respondent referred to in (a) above, the second respondent contravened s 298SC(c) of the Act.
(h) By the action of the fourth respondent referred to in (b) above, the second respondent contravened s 298SC(c) of the Act.
(i) By the action of the fourth respondent referred to in (c) above, the second respondent contravened s 298SC(c) of the Act.
No compensation orders were sought by the applicant under s 298U(c) of the Act for the benefit of Norm Philipp, the estate of the late Reinhard Philipp or Anthony Summers were it to be found that contraventions of s 298SC(c) of the Act occurred on 19 January 2004 and/or 18 February 2004. Accordingly, it is unnecessary to decide whether the losses sustained by them in February – March 2004 and referred to above were caused by the contraventions of s 298SC(c) which have been found to have occurred.
The parties are agreed that the precise form of the relief which should be ordered in the circumstances should be the subject of further submissions after the parties have had an opportunity to consider the findings which have been made in respect of the alleged contraventions. Similarly, the parties have agreed that the appropriate order as to costs should abide further submissions. No doubt such submissions will have regard to s 347(1) of the Act and Re Polites; Ex Parte The Hoyts Corporation Pty Limited (1991) 173 CLR 78 at 93.
I certify that the preceding two hundred and ninety-nine (299) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Graham. Associate:
Dated: 9 February 2007
Counsel for the Applicant: J J Fernon SC and M S White Solicitor for the Applicant: Freehills Counsel for the Respondents: J H Pearce Solicitor for the Respondents: Taylor & Scott Dates of Hearing: 17, 18, 19, 20, 21, 25, 26, 27 and 28 July, 30 and 31 August, 1, 5, 6 and 7 September and 11 December 2006 Date of Judgment: 9 February 2007
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