Kelly v Construction, Forestry, Mining and Energy Union (No.3)

[1995] IRCA 182

CATCHWORDS

INDUSTRIAL LAW - proceeding for an offence - reason for conduct of defendant and onus of proof - whether conduct of person is in capacity as an officer of defendant

Industrial Relations Act 1988 - ss 335(3) and (4)

General Motors Holden Pty Ltd v Bowling (1976) 12 ALR
605
R v Buckland (1977) 2 NSWLR 452
Fabre v Arenales (1992) 27 NSWLR 437
Roberts v General Motors-Holden's Employees' Canteen Society
Inc (1975) 25 FLR 415
Bowling v General Motors Holdens Pty Ltd (1975) 8 ALR 197
Lawrence v Hobart Coaches Pty Ltd (1994) 1 IRCR 92
Cunliffe v The Commonwealth (1994) 124 ALR 120
Royal Australian Nursing Federation v Fawdry (1986) 73 ALR 540
GTS Freight Management Pty Ltd v Transport Workers Union of
Australia (1990) 25 FCR 296
McJannet v White (1994) 122 ALR 82

Nos. NI 112, 113 and 114 of 1994

WAYNE EDWARD KELLY v CONSTRUCTION, FORESTRY, MINING AND ENERGY
UNION

MOORE J

SYDNEY

8 MAY 1995

IN THE INDUSTRIAL RELATIONS      )
  )
COURT OF AUSTRALIA               )      Nos. NI 112 of 1994
  )           NI 113 of 1994
NEW SOUTH WALES DISTRICT REGISTRY )           NI 114 of 1994

BETWEEN:              WAYNE EDWARD KELLY

Prosecutor

AND:      CONSTRUCTION, FORESTRY, MINING
  AND ENERGY UNION

Defendant

JUDGE:    Moore J

PLACE:    Sydney

DATE:     8 May 1995

ORDER OF THE COURT

THE COURT ORDERS THAT:

1. The informations be dismissed.

NOTE: Settlement and entry of orders is dealt with in Order 36 of the Industrial Relations Court Rules.

IN THE INDUSTRIAL RELATIONS      )
  )
COURT OF AUSTRALIA               )      Nos. NI 112 of 1994
  )           NI 113 of 1994
NEW SOUTH WALES DISTRICT REGISTRY )           NI 114 of 1994

BETWEEN:              WAYNE EDWARD KELLY

Prosecutor

AND:      CONSTRUCTION, FORESTRY, MINING

AND ENERGY UNION

Defendant

JUDGE:    Moore J

PLACE:    Sydney

DATE:     8 May 1995

REASONS FOR JUDGMENT

In March 1994, three informations were laid by the informant, Wayne Edward Kelly, against the Construction, Forestry, Mining and Energy Union ("CFMEU") alleging breaches of s335 of the Industrial Relations Act 1988 ("the Act"). A challenge by the defendant to the validity of s335(4) and (5) of the Act was not successful: see (1994) 125 ALR 109. A no case submission by the defendant after the case for the prosecutor had closed was also unsuccessful.

I set out again the terms of the information in each matter.  In matter NI 112 of 1994 the prosecutor alleges that:

"...the Construction, Forestry, Mining and Energy Union, by its servant, officer or agent, Gary John McArthur, also known as John Gary McArthur, also known as John Gary Diahond, did

1. Commit a breach of Section 335(1)(a) of the Industrial Relations Act, 1988 (C'th) in that it advised, encouraged or incited Fine Touch Painters & Decorators Pty Limited to take action in relation to Nick Spiroulias, an employee of Fine Touch Painters & Decorators Pty Limited, contrary to Section 334(1)(b) of the Industrial Relations Act, 1988 (C'th) to injure Nick Spiroulias in his employment or alter the position of Nick Spiroulias to his prejudice by no longer employing Nick Spiroulias at the Family Law Court site because Nick Spiroulias had refused or failed to join in industrial action."

In matter NI 113 of 1994 the prosecutor alleges that:

"...the Construction, Forestry, Mining and Energy Union, by its officer or agent, Gary John McArthur (also known as John Gary McArthur, also known as John Gary Diahond), did

1. Commit a breach of Section 335(1)(d) of the Industrial Relations Act 1988 (C'th) in that it advised, encouraged or incited Fine Touch Painters & Decorators Pty Limited to prejudice in his employment Nick Spiroulias, an employee of Fine Touch Painters & Decorators Pty Limited and also a member of the Construction, Forestry, Mining and Energy Union, by advising, encouraging or inciting Fine Touch Painters & Decorators Pty Limited to no longer employ Nick Spiroulias on the construction site where he was working, namely, the Family Law Court site, because Nick Spiroulias had refused, or failed to comply with a direction given by the said Construction, Forestry, Mining and Energy Union with the result that Nick Spiroulias was employed elsewhere and suffered a monetary loss."

The events to which these charges related occurred on 20 and 21 May 1993.  In matter NI 114 of 1994 there are three charges in the one information concerning conduct alleged to have taken place on 20 and 21 May and 15 June 1993.  The charges are in essentially the same terms and the first alleges:

"...the Construction, Forestry, Mining and Energy Union, by its officer or agent, Gary John McArthur (also known as John Gary McArthur, also known as John Gary Diahond), did

1. Commit a breach of Section 335(1)(g) of the Industrial Relations Act 1988 (C'th) in that it imposed or threatened to impose a penalty forfeiture or disability upon Nick Spiroulias, a member of the Construction, Forestry, Mining and Energy Union, by preventing him from continuing to work as an employee at the Family Law Court site, because he refused or failed to join in industrial action."

The proceedings were brought against the defendant by reference to the conduct of McArthur who is alleged to be its servant, officer or agent in NI 112 and its officer or agent in NI 113 and NI 114 though the proceedings were conducted on the basis that he was an officer of the defendant.

The evidence led by the prosecutor was in the form of affidavit evidence from the prosecutor and Mr Nick Bouras, Mr Notis Markrys, Mr Con Milionis, Mr Dimitrios Xanthopoulos, Mr Nick Spiroulias and Mr George Filippakos who were each cross-examined.  They were the directors or employees of Fine Touch Painters and Decorators Pty Ltd ("Fine Touch").  An affidavit sworn by Mr Ronald Phillip Meaney was read though he was not cross-examined.  Documentary evidence was tendered by the prosecutor which I describe in more detail shortly.  McArthur was called by neither the prosecutor nor the defendant.  The defendant called oral evidence from Mr Daniel Reiss and Mr Andrew Ferguson.

The account by the directors and employees of Fine Touch of the relevant events on 20 and 21 May 1993 was generally uncontentious.  Their evidence concerning specific matters of detail varied in some instances though those variations were generally not material either because they concerned matters that are of peripheral relevance or no attempt was made to impugn their credit.  The evidence of Spiroulias was an exception to this and I shall consider his evidence in more detail shortly.

The following narrative reflects the findings I have made based on this generally uncontentious evidence.  Employees of Fine Touch were working at a construction site at the corner of Goulburn and Castlereagh Streets in the central business district of Sydney ("the city construction site").  The building under construction was a high rise court complex for the Family Court of Australia.

In 1994 Fine Touch was a member of the Master Painters, Decorators and Signwriters' Association of New South Wales ("the Master Painters") which is an employer association.  That association was then a named respondent to the National Building and Construction Industry Award 1990 ("the national award").  The principal builder or project coordinator on the city construction site was Baulderstone Hornibrook Pty Ltd ("Baulderstone") with whom Fine Touch had contracted to undertake painting work.  In its contract Fine Touch had agreed to adhere to a site agreement applying to the city construction site.  The national award created an obligation to pay redundancy pay to a redundant employee.  The site agreement required payments be made into an industry approved redundancy fund and identified as one such fund the Construction Employees Redundancy Trust Scheme which was referred to in the site agreement by its acronym, "CERT".  The national award referred to the use of funds but created no obligation to make payments into one.  Both the national award and the site agreement required an employer to pay superannuation contributions on behalf of each employee into a fund and both identified one such fund as "BUSS", the Building Unions Superannuation Scheme.

The directors of Fine Touch were Bouras and Markrys.  While Fine Touch had been paying into CERT on behalf of its employees since March 1990, Bouras and Markrys made a decision in November 1992 to stop doing so and to make payments to another redundancy scheme.  They gave effect to this decision in December 1992.

On 8 March 1993 Bouras went to premises in George Street, Redfern, which he described as the offices of the Operative Painters and Decorators Union of Australia ("OPDU").  There he spoke to a person who he knew as Louis with whom he discussed payment into CERT.  There was a discussion and Bouras was given a document by Louis which was a pro forma agreement under the letterhead of the OPDU between, it appears, it and an employer ("the CERT exemption agreement").  The CERT exemption agreement permitted an employer to cease paying to CERT in certain circumstances with the agreement of its employees while still making payments to BUSS.  McArthur became involved in the discussions and abused Bouras and indicated, as Bouras was leaving the office, that he expected the payments to CERT to continue.

In April and May Bouras and Markrys took steps to enable payments to be made to CERT at a lower rate.  On 17 May 1993 Bouras spoke to McArthur by phone in which McArthur raised, in abusive language, his belief that Fine Touch was not making appropriate payments to CERT.  On 20 May 1993 a meeting took place of Fine Touch employees at the city construction site.  It had been arranged at least one day before and is diarised in the site diary maintained by Baulderstone as "Painters Union Meeting - 12.30 - 2.00 in site shed".  Bouras had been informed of the meeting on 19 May 1993 by Baulderstone's project manager.

At about noon on 20 May 1993 the employees of Fine Touch who gave evidence were sitting in a lunch shed at the city construction site.  They were joined by Mr Kiriakos Markar who has been identified in the proceedings as an organiser or employee of the OPDU.  Markar raised with the employees the issue of payments on their behalf into BUSS and CERT and indicated they could not return to work until outstanding payments had been made.  After a short period Markrys entered the shed and a discussion took place between him and Markar about payments into CERT and BUSS.

Markar then left and returned with McArthur.  It was by then approximately 12.30pm.  McArthur abused Markrys and demanded that the employees not resume work until payments into BUSS and CERT had been made.  Markrys left the shed and the city construction site and started to walk towards his van in Castlereagh Street.  He was followed by Markar and McArthur who abused him and persisted with the demands that payments be made.  Some of the personal abuse angered Markrys who eventually got into his van, though the abuse continued.  Shortly after, McArthur and Markar left and Markrys summoned Bouras by mobile phone.  When Bouras arrived, the two of them returned to the entrance of the construction site and joined McArthur and Markar and agreed with them to return to the shed to sort the matter out.  A further meeting in the shed followed.

After further complaints were made to the employees by McArthur about the failure of Fine Touch to pay money payable on their behalf, McArthur produced two forms which he started to read.  He then said words to the effect that Bouras did not understand English and tore the forms up.  Later that day they were retrieved by Bouras and pieced together and taped.  These forms were two incomplete pro forma agreements described in the documents as an agreement with the Operative Painters and Decorators Union NSW Branch, one permitting a reduction of the level of payments into CERT in certain circumstances ("the CERT reduction agreement") and the other permitting a reduction of the levels of payment into BUSS in similar circumstances ("the BUSS reduction agreement").  Both the CERT reduction agreement and the BUSS reduction agreement were on the letterhead of OPDU.

Spiroulias in his evidence said he indicated to McArthur that he did not wish to comply with any direction to leave the site and return home.  Evidence to the same effect was given by Milionis and Filippakos about statements they heard Spiroulias make and McArthur's reply.  I accept that Spiroulias either expressly or by clear implication made McArthur aware that he wanted to work and would do so notwithstanding any direction McArthur might give.  Then followed an incident between Spiroulias and McArthur though the witnesses' accounts of what occurred varied.  It is important so I set out in summary form the various accounts.

In his affidavit Markrys described an exchange between McArthur and Spiroulias in which Spiroulias stood up and later slapped his hands on his overalls.  After this Markar stepped between the two of them.  He accepted in cross-examination that McArthur said, after Spiroulias touched his overalls, words to the effect "what are you doing, you are reaching for a putty knife", though later accepted a different version of what was said, namely "are you threatening an organiser with your putty knife".  Bouras recounted in his affidavit that Spiroulias slapped his hand on his pocket in the context of McArthur and Spiroulias speaking abusively to each other.  He recalled Markar stepping between them.  During cross-examination he could not recall anything that was said at that point by McArthur about a putty knife being pulled.  In his affidavit Xanthopoulos recalled Spiroulias slapping his thighs with his open hands and McArthur saying to Spiroulias "what are you doing, reaching for your putty knife.  Are you threatening an organiser with your putty knife" and Spiroulias responding by saying he was not reaching for a putty knife.  Milionis, whose grasp of English did not appear to be good, said in his affidavit that Spiroulias waved his hands up and down near his hips.  He denied Spiroulias slapped his pockets.  He did not remember any statement by McArthur to the effect that an organiser was being threatened nor any response from Spiroulias.  He did recall Markar stepping between them.  In his affidavit Filippakos recalls McArthur saying "Did you see what happened?  He tried to pull a knife on me."  He described things as moving very fast.  He accepted in cross-examination that Spiroulias was upset and stood up and slapped his hands on his pocket.

In his affidavit Spiroulias said:

"I was wearing my baggy overalls at the time which has a pocket just below the hip.  I recall standing up and slapping my overalls on the side as I was angry.  I also slapped my overalls to straighten them.  I am aware of an allegation by Gary McArthur that I pulled a putty knife from my side pocket.  I did not reach into that pocket whatsoever and I recall and remember that I did not have a putty knife in the side pocket.

Gary McArthur walked towards me and stood face to face with me.

Gary McArthur said:     'You fucking idiot, you have no idea what you are saying and why we are here.'

Kiriakos Markar then walked between Gary McArthur and myself and started nudging me with his shoulder.

Kiriakos Markar said:   'I can take you to Court for assaulting an organiser.'

I did not touch Gary McArthur at all."

He indicated in evidence in chief given orally that it more likely McArthur made the statement about going to court for assaulting an organiser.  In cross-examination he did not accept that he slapped his hands and indicated it was a more gentle movement.  He does recall Markar stepping between them.

From this evidence the following is, in my view, established.  In the context of a tense and heated exchange between McArthur and Spiroulias, Spiroulias stood up.  At a point after that Spiroulias slapped the side of his overalls with open hands.  It was a decisive gesture. McArthur viewed it as an aggressive act and genuinely believed that Spiroulias was reaching for a putty knife.  I find that McArthur said words to the effect: "you are reaching for a putty knife, are you threatening an organiser with your putty knife".  I infer that McArthur held the belief that a putty knife was about to be produced because of the spontaneous statement he made to the effect that Spiroulias has attempted to produce a putty knife to use to assault him.  I do not consider that in the circumstances McArthur, who appears from his conduct and language to be fairly unsophisticated and probably not particularly intelligent, would have contrived instantly the statement about a putty knife for some ulterior purpose.  He was in a state of tension in a hostile environment.  It is unlikely, and I do not accept, that the statement he made concerning the putty knife was not based on a belief he then held that the conduct of Spiroulias was directed to producing a putty knife for aggressive purposes.  The exchange between McArthur and Spiroulias was of such character that Markar thought it was necessary to step between and did to keep them apart.

During the meeting two other employees, Mr Michael Pappou and Milionis, each told McArthur, at different times, that they would not accept what McArthur was saying, were abused by McArthur, and left the shed.  Both were involved in heated exchanges with McArthur in which they stood up to him and were abused.

Generally the meeting was one in which the language of McArthur was uncouth and much of it extremely abusive even allowing for a degree of robustness of language that might occur on a building site.  It was a charged and tense meeting which was brought to an end by the entry into the shed of a Mr Jim Clark, a Baulderstone employee, who both inquired what was going on and suggested a meeting occur in his office.  McArthur, Markar, Bouras, Markrys and Clarke walked to the Baulderstone office and discussions took place about the payment of contributions into CERT and agreement reached as to when and how it would be done.

After leaving the office, McArthur told Bouras and the Baulderstone project manager that he wanted the person who had attacked him with the putty knife removed from the site and not to work on the site again.  The conversation was recounted by Bouras in his affidavit in the following way:

"Gary McArthur then said to Mike Horenko and myself:

'I want the guy who tried to attack me to be removed from the site.  If we can find out who he is he is not to be on site again.'"

This demand by McArthur was renewed the following morning in a conversation with Bouras at another meeting in the Baulderstone office.  The conversation was recounted by Bouras in his affidavit in the following way:

"Gary McArthur then said to me during the office conversation:

'The next thing I want is the guy who attacked me with the putty knife removed from the site.'

Notis Markrys said to Gary McArthur:

'He did not attack you with a putty knife.'

Kiriakos Markar said to Gary McArthur:

'I have to say the truth how this happened.  The guy put his hand on his pocket and we all know how putty knives are kept there.  But he never pulled it out.'

Gary McArthur said to all of us in the room:

'I've talked to the boys in the shed and they don't want him either.  He's got funny eyes.  He looks as though he is smoking drugs or drunk.'"

Markrys' account in his affidavit of this second conversation was in almost identical terms.  The cross examination of each did not detract, in any material way, from this account of what was said by McArthur.  However in cross examination Bouras agreed that McArthur said something to the effect that if something like an attack on an organiser had occurred it was the policy of the building trades group of unions for him to be moved.

Early in the afternoon Bouras, in response to McArthur's demand, spoke to Spiroulias and asked him to go home and gave him a telephone number of a person he could contact for work the following day.  He did so with the result that he commenced work for Fine Touch at a building site in Redfern.  As a consequence he no longer received payments he had been receiving at the city construction site nor was he able to work on Saturdays and his income fell by approximately $200 per week.

In early June, Spiroulias was contacted by Markrys and asked to return to the city construction site.  The next morning he reported to Xanthopoulos, Fine Touch's foreman at the city construction site, but later that morning Xanthopoulos expressed concern about Spiroulias being recognised and they rang Bouras.  Bouras said he would send Spiroulias to a site at Bondi and suggested to Spiroulias to go and see the Union and settle the matter.  Spiroulias did so and attended the OPDU offices at Redfern.  He recounts what happened at the office in his affidavit and though he was cross examined about this I accept his account.  He spoke to an office worker with whom he arranged to make weekly payments of arrears in union dues.  Spiroulias signed a form containing the agreement for the periodic payment of arrears and put it in his pocket.  He then waited for McArthur to arrive at the office.  He did and Spiroulias firstly expressed regret at what had happened earlier and then explained that he had came to the offices to see how much he owed the union and whether he could go back to work at the city construction site.  A conversation ensued in which McArthur was given the agreement that Spiroulias had signed and screwed it up.  McArthur said that Spiroulias could not return to work at the city construction site.  Shortly after Spiroulias left.  He then commenced work for Fine Touch at a site in Bondi.

The period during which Spiroulias was not able to work at the city construction site was thirty-nine weeks and for that period his income was approximately $200 less than it would have been had he been working there.

Apart from the documentary evidence I have already referred to, other documents were tendered which relate principally to the relationship between McArthur and the defendant. The following is clearly established by that documentary evidence and other evidence. OPDU was an organisation registered under the Act and amalgamated to form part of the defendant. The amalgamation took effect on 26 March 1993. As a result of that amalgamation McArthur then became an officer of the defendant and held the office of both Joint NSW State Vice President of the New South Wales Branch and Divisional State Vice President of the Building Unions NSW Divisional Branch. Under the rules of the defendant, McArthur was a member of both the New South Wales State Executive of the New South Wales Branch and the State Conference as well as a member of both the Building Unions NSW Branch Management Committee and Council. These bodies are governing bodies of the Branch and Division. There is an industrial union registered under the provisions of the Industrial Relations Act 1991 (NSW) ("the State Act") called the Operative Painters and Decorators Union, New South Wales Branch ("OPDU (NSW)"). It has not amalgamated with other industrial unions under the State Act. McArthur was an officer of OPDU (NSW). The oral evidence of Bouras suggests that the office McArthur held in the OPDU (NSW) in May 1993 was that of either organiser or secretary.

McArthur held a right of entry in his name issued by the National Secretary of the defendant.  This right of entry was produced as a result of the service of a subpoena on McArthur and tendered by the prosecutor.  McArthur did not attend court.  The subpoena called for the production of:

"The Federal Right of Entry authority issued to you pursuant to the provisions of Clause 43 of the National Building Trades Construction Award both before and after 26 March 1993".

The right of entry was a piece of cardboard covered by a lamina of clear plastic.  The cardboard was a printed card with McArthur's name typed in a space left for that purpose and a signature appears in a space entitled "specimen signature of holder" which has the appearance of McArthur's signature.  The card bears no date which identifies when it was issued by the National Secretary, when it was signed, nor any period for which it is intended to operate.  On the outside of the plastic lamina is printed in blue pen the text "APRIL 93".  This writing is not over any writing or space on the card to which the text logically relates.  There is no direct evidence of who wrote the text, the circumstances in which it was written or when it was written.

The prosecutor has established beyond reasonable doubt that McArthur required the directors of Fine Touch to remove Spiroulias from the city construction site and work elsewhere and that as a consequence, Spiroulias' remuneration fell. Apart from the issues of the capacity in which McArthur was acting and his reasons for demanding Spiroulias be moved, the charges under s335(1)(a), (1)(d) and (1)(g) are made out as they concern the events of 20 and 21 May 1993. The defendant did not submit they were not. The contentious matters in the proceedings are the capacity in which McArthur was acting and the reasons for his action.

The reasons for McArthur's actions are relevant because elements of the charges under s335(1)(a), (1)(d) and (1)(g) are that the reason for McArthur's conduct leading to the removal of Spiroulias from this site was because Spiroulias refused to join in industrial action or refused to comply with a direction of the defendant to engage in such action. The way s335 is drafted it is necessary to refer to the provisions in s334 where these reasons are specified. The operation of s335 depends upon s334. However s335 contains a provision that affects the obligation the prosecutor would otherwise have to prove this element of each charge. Section 335(3) provides:

"In a prosecution for an offence against this section, it is not necessary for the prosecution to prove the defendant's reason for the action charged nor the intent with which the defendant took the action charged, but, where a reason or intent is specified in the charge, it is a defence to the prosecution if the defendant proves that the action was not motivated (whether in whole or in part) by the reason, nor  taken with the intent (whether alone or with another intent), specified in the charge."

The effect of the subsection is to require the defendant to establish the reason for the conduct was not as alleged in each of the charges and it was common ground that the standard of proof the defendant must meet is the civil standard of the balance of probabilities.  The manner in which a provision such as this operates was considered in General Motors Holden Pty Ltd v Bowling (1976) 12 ALR 605 and at 617 Mason J said:

"Section 5(4) imposed the onus on the appellant of establishing affirmatively that it was not actuated by the reason alleged in the charge.  The consequence was that the respondent, in order to succeed, was not bound to adduce evidence that the appellant was actuated by that reason, a matter peculiarly within the knowledge of the appellant.  The respondent was entitled to succeed if the evidence was consistent with the hypothesis that the appellant was so actuated and that hypothesis was not displaced by the appellant.  To hold that, despite the subsection, there is some requirement that the prosecutor brings evidence of this fact is to make an implication which, in my view, is unwarranted and which is at variance with the plain purpose of the provision in throwing on to the defendant the onus of proving that which lies peculiarly within his own knowledge."

Section 5(4) of the Conciliation and Arbitration Act 1904 ("C & A Act") was then in the same general form as s335(3) and then provided:

"s.5(4) In any proceeding for an offence against this section, if all the facts and circumstances constituting the offence, other than the reason for the defendant's action, are proved it shall lie upon the defendant to prove that he was not actuated by the reason alleged in the charge."

I should, at this stage, deal with a matter that was raised by the prosecutor in this context, namely that the defendant did not call McArthur.  The prosecutor submitted that an inference could be drawn from the failure of the defendant to call McArthur that his evidence would not have assisted its case on the issue of the reason for his conduct.  Reference was made to R v Buckland (1977) 2 NSWLR 452, Sandford v The Queen (1994) 72 A Crim R 160 and R v Bulejcik, 21 July 1994, unreported, New South Wales Court of Criminal Appeal.  It may be accepted that in the absence of an explanation as to why McArthur was not called, such an inference might be drawn.  However the defendant called its legal officer, Mr Reiss, who gave evidence that he spoke to McArthur on a number of occasions in the second half of 1994 inquiring about obtaining a statement from him but that no statement was provided.

In cross examination Reiss said McArthur was continually asked to provide a statement, he said he would but did not.  Reiss was also asked about what McArthur had told him and the following appears in the transcript:

"And on the occasion or occasions that you spoke to him did you have any discussion with him as to what his evidence was likely to be?---He'd indicated in very general terms, you know, that the whole thing was a load of rubbish and that there had been an assault against him, that's what it was all about, but he never provided me - when I said 'a statement' before, I meant a written statement - he was continually asked to provide a written statement and he said he would but never produced it."

Reiss denied that he told McArthur that a defence would be raised that McArthur was on the site in his capacity as a member of the OPDU and that McArthur said that it was nonsense and that he was representing the CFMEU.  Reiss also denied then saying words to the effect that "well I don't think we'll call you then".

I accept Reiss's evidence that he contacted McArthur and his evidence as to what was said.  The manner in which a court should approach the failure of a party to call a witness was discussed by Mahoney JA in Fabre v Arenales (1992) 27 NSWLR 437 at 449:

"The significance to be attributed to the fact that a witness did not give evidence will in the end depend upon whether, in the circumstances, it is to be inferred that the reason why the witness was not called was because the party expected to call him feared to do so.  But there are circumstances in which it has been recognised that such an inference is not available or, if available, is of little significance.  The party may not be in a position to call the witness.  He may not be sufficiently aware of what the witness would say to warrant the inference that, in the relevant sense, he feared to call him.  The reason why the witness is not called may have no relevant relationship to the fact in issue: it may be related to, for example, the fact that the party simply does not know what the witness will say.  A party is not, under pain of a detrimental inference, required to call a witness 'blind'.

These matters are of relevance in the present case.  A Jones v Dunkel inference may not arise if, for example, a witness has a reason for not telling the truth or refusing to assist and the party who may call him is aware of this.  If the Government Insurance Office had been the party and Mr Arenales merely a witness, it is at least arguable that no inference would be drawn from the fact that he was not called for the defendant.  If called he would have been asked in effect to admit a crime of some seriousness.  If he did, he might be liable to reimburse the Government Insurance Office for or in respect of the amount recovered by the plaintiff.  And, perhaps, it might be doubted that he would co-operate, by way of prior consultation, proof of evidence, or the like.  It may be that his character or criminal record would affect these matters.  These were, in my opinion, matters which the learned judge would have been required to 'address' had the Jones v Dunkel inference been of significance in his consideration of the plaintiff's credibility."

In that case the plaintiff had been injured in a motor vehicle accident while the vehicle was being driven by Mr Arenales.  Both had, at the time, been escaping from the scene of a crime where both had been involved in stealing.  Mr Arenales was not called to give evidence.

In the present case the explanation given by the defendant for not calling McArthur is that McArthur did not provide a statement when requested.  He was, at least to that extent, not co-operating with the defendant.  However it appears from the answer given by Reiss I earlier quoted, that Reiss was generally aware of the evidence McArthur might give relevant to this issue concerning the putty knife and it was to the effect that there had been an assault.  On this issue the defendant knew generally what McArthur might say and it was not unfavourable to it.  It is not clear whether the defendant knew what McArthur's evidence would be on other issues and, if it did not, that may explain why he was not called.  Alternatively it knew and it did not help and for that reason did not call him.  However on the issue I am presently considering I do not consider that an inference can be drawn that McArthur was not called because his evidence, on that issue, would not assist the defendant.

I have already indicated that I am satisfied Spiroulias stood up during the course of the meeting and some time after that slapped his thighs with his hands and this occurred when McArthur and Spiroulias were addressing each other in heated terms in an atmosphere of tension.  It was, in the circumstances, reasonably capable of being understood by McArthur as an aggressive act by Spiroulias.  The response by McArthur was immediate and I am satisfied was spontaneous.  There is evidence that supports the conclusion that the reason why McArthur wanted Spiroulias removed was the reason he gave at the time, namely he believed that Spiroulias, when standing up to him, was going to remove from his pocket a putty knife for aggressive purposes.

While I accept that Spiroulias did not have a putty knife that, in my view, is not material. It is McArthur's belief that is relevant and I am not satisfied that McArthur knew or suspected that Spiroulias did not have or was unlikely to have a putty knife in his possession. McArthur was behaving like an unconstrained bully and the direction he gave that Spiroulias be removed from the site, was punishment that a bully might be expected to mete out to someone who stood up to him. Stated this way it must also be accepted that the evidence would tend to support a conclusion that while the predominant factor that had irked McArthur and led to the demand for Spiroulias' removal was the act of physical aggression concerning, as he believed, the putty knife, another was Spiroulias' defiant stand against McArthur's desire that his wishes be complied with if he directed the employees not to work and go home. The question that then arises is whether the defendant has established on the balance of probabilities, that the conduct was not motivated, in whole or in part, by the reasons specified in the charges: see s335(3).

The defendant referred to Roberts v General Motors-Holden's Employees' Canteen Society Inc (1975) 25 FLR 415 which is another case concerning s5(4) of the C & A Act in which a Full Court of the Australian Industrial Court expressed the view at 424 that:

"... a particular action taken by an employer may be said to have been actuated by a particular reason or circumstance if that reason or circumstance was a substantial and operative factor influencing him to take that action.  The decision of Joiner v Muir (1967) 15 FLR 340 is in point.

It is in this sense that, to support its plea of not guilty, the burden is cast upon the defendant to prove to the satisfaction of the court, as on a balance of probabilities, that in dismissing the informant it was not actuated by either of the circumstances described in pars(1) and (3) of the charge."

Observations to the same effect are found in the joint judgment of the Court in a judgment of a majority of the Industrial Court, Smithers and Evatt JJ, given a month later in Bowling v General Motors Holdens Pty Ltd (1975) 8 ALR 197 at 200:

"Reading s5(4) as part of s5 taken as a whole, we are of opinion that a particular action taken by an employer may be said to have been actuated by a particular reason or circumstance if that reason or circumstance was a substantial and operative factor influencing him to take that action. Further, an employer may be said to have been actuated by a particular reason if it was a substantial and operative factor influencing him to take that action, although that reason was but one of a number of reasons which so influenced him.

It is in this sense that to support its plea of not guilty the burden is cast upon the defendant to prove to the satisfaction of the court, as on a balance of probabilities that in dismissing the informant it was not actuated by the circumstance that the informant was a shop steward (see Roberts v General Motors-Holden's Employees' Canteen Society Inc B No 177 of 1975, unreported; Mikasa v Festival Stores (1972) 47 ALJR 20; [1972-73] ALR 921; compare Joiner v Muir (1967) 15 FLR 340)."

The notion of "substantial and operative factor" was referred to with approval in the High Court by Mason J in Bowling, supra, at 616 with whose reasons Stephen and Jacobs JJ agreed. Mason J indicated that the reference to a reason in s5(1) was not a reference to the sole or predominant reason. Thus s5(4) required the defendant to prove, on the balance of probabilities, that the reason for dismissal etc., upon which the charge was based, was not a substantial and operative factor. Section 5(4) would not be satisfied by proof that the reason upon which the charge was based was not the sole or predominant reason: see also Lewis Constructions Co Pty Ltd v Martin (1986) 70 ALR 135 at 137. The defendant also referred to Cuevas v Freeman Motors Ltd (1975) 8 ALR 321.

Subsection 334(6) now embodies the provisions formerly found in s5(4) of the C & A Act though there is a relevant difference in the language. Section 5(4) spoke only of "not actuated by the reason alleged" whereas both s334(6) and s335(3) speak of "not motivated (whether in whole or in part) by the reason ... specified in the charge" (emphasis added). The introduction of the reference to "whole or in part" in both s334 and s335 occurred with the enactment of the Industrial Relations Act 1988. Section 5(4) of the C & A Act spoke of "the reason" or "that reason" until its repeal in 1988 as did s188(3) of that Act, which is the legislative predecessor of s335(3). There was a slight alteration in the language of s5(4) between 1976 and 1988 but I do not view it as material for present purposes.

The onus of proof provision in s335(3) is in substantially the same terms as that in s334(6). Sections 335(3) and 334(6) are intended to operate in the same way. As s334 deals with the same general subject matter as s5 of the C & A Act, the question then arises whether s334(6) is intended to operate in the same way as s5(4) had been held to operate or whether its scope was intended to be wider. The former would be so if the change in the language was intended to express more clearly the idea embodied in s5(4): see s15AC of the Acts Interpretation Act 1901 (Cth). However both s334 and s335 require the defendant to establish that the action was not motivated in whole by the reason in the charge or was not motivated in part by the reason. The latter would be relevant if a number of reasons were apparent as factors that might have motivated the defendant. As earlier stated, offences created by s335(1) have, as an element, the reason for proscribed conduct, but the reason is found in s334(1) which is imported into s335(1). Thus, in relation to an offence created by s335(1), the reason is a reason identified in s334(1) upon which the provisions of s335(3) operate. The combined effect of ss334(1) and 335(3) is to permit the prosecutor to allege a reason identified in s334(1) for the purpose of s335(1) and to require the defendant to demonstrate that the reason alleged played no part in motivating the proscribed conduct. Given the differences in language, some caution, in my opinion, has to be exercised in applying, for present purposes, decisions concerning the operation of s5(4): but see the observations of Northrop J apparently to the contrary in Lawrence v Hobart Coaches Pty Ltd (1994) 1 IRCR 92 at 94.

Nonetheless the purpose of the existing legislative provisions has to be borne in mind when considering the operation of s335(3). Both ss334 and 335 are intended to prohibit conduct which has, as a purpose, causing injury to an employee because the employee engaged in a specified activity. The sections identify activity that Parliament views as activity a person should be able to engage in as an employee or resist having to engage in as an employee without penalty in the workplace though in some respects their operation is wider. The provisions are intended to be protective of the rights of employees in that context. Accordingly the proof or disproof of a motive and reason has to be viewed with that purpose in mind.

In the present case the evidence establishes, in my opinion, that the reason motivating the action of McArthur was to punish someone who had confronted him with an act of physical aggression together with a defiant attitude which questioned his authority.  The defiance concerned the assertion of a right that, in other circumstances, the provisions in ss334 and 335 are intended to protect, namely the right to refuse to engage in industrial action.  However the conduct of McArthur was not intended to deny the right to the employee or punish the employee for asserting it.  What the defiant attitude related to did not concern McArthur, it was the simple act of defiance together with the act of aggression that triggered McArthur's response.  McArthur's response was an entirely personal one.  The defiance in relation to the industrial action simply exacerbated McArthur's hostile and personal response to the act of physical aggression.  McArthur's conduct was boorish, bullying and an abuse of power.  However the provisions of ss334 and 335 are not intended to proscribe behaviour which is boorish, bullying or an abuse of power by either an employer or a union when it is not directed to denying or punishing the assertion of a right by an employee in the way I have discussed.  The provisions are intended to protect those rights.  In my opinion the assertion of such a right by Spiroulias was not the reason for McArthur's conduct and on the prosecutor's evidence, the defendant has established, on the balance of probabilities, that the conduct of McArthur was not motivated in part by the reason that Spiroulias had refused to engage in industrial action or refused to obey a direction to engage in industrial action.

The next issue concerns the capacity in which McArthur was acting on 20 and 21 May 1993. This initially involves consideration of s335(4) which provides:

"For the purposes of this section, action done by:

(a)the committee of management of an organisation or branch of an organisation;

(b)an officer, employee or agent of an organisation or branch of an organisation acting in that capacity;

(c)a member or group of members of an organisation or branch of an organisation acting under the rules of the organisation or branch; or

(d)a member of an organisation, who performs the function of dealing with an employer on behalf of the member and other members of the organisation, acting in that capacity;

shall be taken to have been done by the organisation."

I have already dealt with a challenge to the validity of s335(4) in an earlier judgment: 125 ALR 109. In support of the view I then expressed that a law that deprived an organisation entirely of the opportunity in criminal proceedings of showing that the conduct of an officer or employee was not its conduct was not a law made in exercise of the power arising under s51(xxxv), I should add a reference to the observations of Gaudron J in Polyukhovich v The Commonwealth (1991) 172 CLR 501 at 704. However I should also add that since my earlier judgment the High Court gave judgment in Cunliffe v The Commonwealth (1994) 124 ALR 120, which bears upon the circumstances in which disproportionality might render invalid a law made under s52. Reference was made to this decision by the prosecutor. The High Court made clear that this ground of invalidity only arises if the impugned law was made in exercise of a purposive power. However this leaves unanswered the antecedent question of whether the power arising under s35(xxxv) is such a power. The language of the placitum and its subject matter would suggest it is.

While McArthur held two offices in the defendant at the relevant time, it is necessary to determine whether he was acting in the capacity as an officer.  This the prosecutor must establish beyond reasonable doubt.  In order to demonstrate that the prosecutor has failed to do so, the defendant pointed to material which suggests that McArthur was acting in the capacity of an officer of the OPDU (NSW) and impliedly raising the prospect that the latter capacity was the only one in which McArthur was acting.

There is material that supports the view that McArthur was acting in the capacity as an officer of the OPDU (NSW) on 20 and 21 May 1993. The meeting of employees on 20 May 1993 was referred to in the Baulderstone site diary as a Painters Union meeting, the site agreement applying to the city construction site was one to which, arguably, the OPDU (NSW) was a party and which created obligations which would involve payments to both CERT and BUSS. I express the view that the site agreement arguably was with the OPDU (NSW) because the trade union parties are identified, at the conclusion of the agreement where it was to be signed, in five out of seven instances as a named union with the concluding words "NSW Branch" which suggest an agreement at a state level. In so far as a painters trade union is concerned the party is identified as the Operative Painters and Decorators Union of Australia, NSW Branch which is the name of the state registered union save that its name includes the words "New South Wales" rather than "NSW". The reference to the painter's union party in the agreement may be a reference to the state registered union which has corporate legal status by virtue of s421 of the Industrial Relations Act 1991 (NSW). Branches of federally registered organisations have no separate legal identity: see Royal Australian Nursing Federation v Fawdry (1986) 73 ALR 540. The agreement may have been intended to be a legal agreement between state registered unions to provide benefits in addition or supplementary to those arising under the national award and to deal with matters at a local level such as demarcation disputes. The agreement itself requires the application of the inclement weather provisions of the national award to all employees on site: see cl6, and similarly requires that all fork-lift drivers be paid under that award: see cl22. While it is plainly drafted without any real regard to identifying the legal status of the parties, viewed overall it is arguably an agreement that the OPDU (NSW) has made. Both the CERT reduction agreement and the BUSS reduction agreement produced by McArthur at the meeting identify as one party the Operative Painters and Decorators Union, NSW Branch. They are printed on paper upon which is also printed the letterhead of OPDU. While the documents are, in this respect, ambiguous they may, for the reasons I have just discussed, concern agreements with the state registered union, OPDU (NSW).

The submission of the defendant appeared to proceed on the premise that if McArthur was acting as an officer of OPDU (NSW) he was not acting as an officer of the defendant.  It is a premise I do not accept.  There is no reason in principle why McArthur could not have been acting in both capacities.  The real issue is whether there is evidence to prove beyond reasonable doubt that he was acting in that latter capacity.  The relevance of the evidence suggesting he may have been acting in the capacity as an officer of OPDU (NSW) is that it provides a plausible reason why McArthur was on the city construction site.  Thus the mere fact he was on the site is of limited probative value in establishing that he was there in his capacity as an officer of the defendant.  On any view he was plainly on the site in his capacity as a union official.

As I earlier indicated, the oral evidence of Bouras suggests that the office McArthur held in the OPDU (NSW) in May 1993 was that of either organiser or secretary.  His evidence does not indicate which of those offices Bouras understood McArthur to hold in May 1993, but rather it was to the effect that over the time he knew him, commencing in 1990, he was first an organiser then the secretary.  Of some significance, in my opinion, is the description McArthur gave of himself in the exchange in the shed when he said words to the effect "you are reaching for a putty knife.  Are you threatening an organiser with your putty knife".  That statement is consistent with McArthur being on site as an organiser of OPDU (NSW).

The offices held in the defendant were Joint NSW State Vice President of the New South Wales Branch and Divisional State Vice President of the Building Unions NSW Divisional Branch.  The duties of the Joint NSW State Vice President of the New South Wales Branch are deemed by r51(ii) of the defendant to be the duties of National Vice President found in the rules though applied at a Branch level with appropriate changes.  Rule 22(5) specifies the duties of National Vice President as follows:

"The Vice-Presidents shall assist the National President/s or Senior Vice-President/s in the conduct of meetings and, in the absence of both the abovementioned offices, shall act as President.

They shall carry out such other duties as shall be determined from time to time by the National Conference or National Executive."

The duties of President which a Vice President might be called upon to perform are found in r22(1) which provides:

"A National President shall preside at meetings of National Conference, National Executive and meetings convened by National Conference or National Executive if it is possible for one of them to be present.

A National President shall have a deliberative vote only.

A National President shall perform all duties assigned to him/her by the National Conference or National Executive and shall be responsible with the National Secretary for the allocation of duties and responsibilities arising from decisions of the National Conference or the National Executive."

There is no evidence of other duties having been determined or assigned for the offices of Vice President or President.  It appears from a list of office bearers retained by the Industrial Registrar which is in evidence that the position of Joint NSW State Vice President is a full-time position.  What that means in terms of employment, hours of work and payment is unclear.

The rules concerning the duties of the Divisional State Vice President of the Building Union NSW Divisional Branch are similar.  Rule 44 of the rules entitled "the rules of the Construction, Forestry, Mining and Energy Union, Building Unions Division and Building Unions Divisional Branches" provides:

"Except in the Victorian Divisional Branch and the ACT and Western Australian Divisional Branches the Divisional Branch Vice-President shall be elected by the Divisional Branch Management Committee from among its members and shall preside at meetings in the absence of the Divisional Branch President, and shall carry out the duties of the Divisional Branch President and such duties as may be required by resolution of the Divisional Branch Council or Divisional Branch Management Committee which are in accordance with these rules."

The word "Branch" is used in this rule to describe the office, but it is a description of the office McArthur held even though it is elsewhere described as the Divisional State Vice President (emphasis added).

The duties of the Divisional Branch President that might be performed by a Divisional State Vice President are set out in r43 which provides:

"(a)The Divisional Branch President shall preside at meetings of the Divisional Branch Council or Divisional Branch Management Committee and meetings convened by the Divisional Branch Council or Divisional Branch Management Committee.

(b)(i)   The Divisional Branch President, during such term of office shall hold no other position within the Divisional Branch provided for in these Divisional Branch Rules.

(ii)In New South Wales and Victoria the Divisional Branch President shall be employed in a full-time capacity.

(c)The Divisional Branch President shall carry out such duties as may be assigned to him from time to time by the Divisional Branch Management Committee, and by the Divisional Branch Secretary acting on their behalf.

(d)The Divisional Branch President shall conduct business in accordance with Rules laid down for his guidance.  He shall not enter debate or any question, but shall endeavour to bring the business to a satisfactory conclusion.  He shall have a casting vote only.

(e)The Divisional Branch President shall sign the minutes of proceedings of Divisional Branch Council, Divisional Branch Management Committee, or any meeting convened by the Divisional Branch Council or Divisional Branch Management Committee when same have been duly confirmed.

(f)The Divisional Branch President shall examine bank vouchers setting out bank balance, record of each banking transaction, countersign all orders of payment of any money authorised by the Divisional Branch Council or Divisional Branch Management Committee which is in accordance with Rules.

(g)The Divisional Branch President shall cause to be entered in the minutes of the Divisional Branch Management Committee a record of all payments, monies received and banked and statement of cash in hand.

(h)The Divisional Branch President may be required by resolution of the Divisional Branch Council or Divisional Branch Management Committee to attend to any business concerning the finances and administration of the Divisional Branch either in connection with the Divisional Branch Council, Divisional Branch Management Committee or District Committees, and shall if so required submit a report in writing of the findings to the Divisional Branch Council and Divisional Branch Management Committee members.

(j)The Divisional Branch President shall be an ex-officio member of all Committees of the Divisional Branch."

There is no evidence of resolutions assigning other duties to the Divisional Branch President or Vice President.

None of these duties expressly involve the Divisional State Vice President of the Building Union NSW Divisional Branch or Joint NSW State Vice President of the New South Wales Branch directly representing the defendant or its members on building sites.  Indeed both offices have the appearance of being more administrative in character and relating to the processes of government of the Divisions or Branches of the defendant.  However it must be accepted that McArthur, in these capacities was issued a right of entry by the National Secretary of the defendant, that would permit access to building sites though to perform what duties is not immediately apparent.

In support of the submission that McArthur was acting in his capacity as an officer of the defendant, the prosecutor pointed to the fact that Fine Touch is a member of the Master Painters which is a named respondent to the national award and that the award bound both OPDU and the organisation with which it amalgamated to form the defendant. The prosecutor also referred to cl43 of the national award which enables a duly accredited representative of an organisation to enter a building site though McArthur's right of entry tendered in these proceedings was one issued under s286 of the Act. That difference, however, is not a material one as plainly the right of entry was issued for the purpose of authorising entry in relation to the activities of the defendant. However, while the card had written on the plastic lamina the text "APRIL 93", that evidence alone does not sustain a finding that it was issued then or was operative then and, on either basis, was used by McArthur on 20 and 21 May 1993 to gain access to the city construction site. Who wrote the text, when it was written and for what purpose is unknown and I do not consider any inference can safely be drawn about these matters merely because the text appears on the card produced by McArthur on subpoena. The prosecutor also referred to the CERT and BUSS reduction agreements though, for reasons I earlier referred to, its terms and its production by McArthur on 20 May 1993 are not inconsistent with him representing OPDU (NSW). Although the prosecutor has established that organisations that came to form the defendant had engaged in campaigns of industrial action in the period immediately prior to the events in 1993 to secure those conditions and increase the incidence of their payment, the site agreement suggests that they were matters of concern to the OPDU (NSW). The prosecutor also referred to the fact that McArthur, by virtue of the offices he held in the defendant, is a member of the State Executive, the State Conference and the Building Unions New South Wales Divisional Branch Committee. However membership of these governing bodies does not, in the present context, advance the prosecutor's case if the duties of the offices themselves are not shown to comprehend activities the type McArthur engaged in on 20 and 21 May 1993 of entering upon a building site and seeking to secure from an employer benefits said to be due to its employees.

Section 335(4) imputes to the defendant, McArthur's conduct as an officer acting in that capacity. I dealt in my earlier judgment: 125 ALR 109, with the possible effect of s335(4) and its validity. For reasons I there discuss, it is a provision that should be strictly construed given its effect of imputing conduct to an organisation for the purposes of establishing criminal liability. That approach to the application of s335(4) is consistent with the approach in the judgment of Keely J in GTS Freight Management Pty Ltd v Transport Workers Union of Australia (1990) 25 FCR 296 at 305-309. I do not propose, as requested by the prosecutor, to refer a question of law to a Full Court concerning the construction of s335(4).

While there are matters that the prosecutor has pointed to which are consistent with McArthur acting in his capacity as an officer of the defendant, none provides unambiguous evidence, either directly or inferentially, that it was in his capacity as Joint New South Wales State Vice President or Divisional State Vice President that he attended at the city construction site and acted in the way he did.  Moreover his presence on the site is capable of being explained on the basis that he was there in his capacity as an organiser of the OPDU (NSW).

The distinction drawn between McArthur's role as an officer of the defendant and an officer of the OPDU (NSW) has its foundation in the dual system of registration of trade unions under Commonwealth and State law which has arisen in litigation that has taken a variety of forms: see Allen v Sideris (1984) 3 FCR 548, Geneff v Peterson (1986) 19 IR 40, Bailey v Kranz (1985) 13 IR 339, Sharpe v Goodhew (1990) 33 IR 238, Frizziero v Rice (1992) 36 FCR 449 and the earlier cases referred to by Gray J at 458. The separate identity of a state registered union has been recognised in law though as the Commonwealth Industrial Court said in Moore v Doyle (1969) 15 FLR 59 at 123 the cases illustrate "the web of problems and technicalities which have developed in the system of trade union organization in Australia". However the reach of that web, in many instances, may soon not be as great as it formerly was thought to be: see McJannet v White (1994) 122 ALR 82. Nonetheless in these proceedings the prosecutor accepted that OPDU (NSW) was a separate legal entity though sought to prove beyond reasonable doubt that McArthur's conduct was as an officer of the defendant. I entertain doubt that this is so and, as these are criminal proceedings, the defendant is entitled to the benefit of that doubt notwithstanding that it is founded on a legal distinction that is, in appearance, an artificial one.

The prosecutor also relied on s349(2) which is a provision of more general application which permits, in certain circumstances, the conduct of an officer of a body corporate to be treated as the conduct of the body corporate. I indicated in my reasons when finding the defendant had a case to answer, that I doubted that the general provision in s3492(2) had application to conduct that is said to constitute an offence under s335 given that s335 contains, in s335(4), a special provision dealing with the same subject matter. I adhere to that view. The opening words of s335(4) are "For the purposes of this section..." and the subsection proceeds to identify the circumstances where, for that purpose, the conduct of individuals or groups of individuals can be treated as the conduct of an organisation. There are material differences between s349(2) and s335(4). Unlike s349(2), s335(4) contains no reference to imputing to the organisation, the conduct of a person acting at the direction of, for example, an officer: see s349(2)(b). The clear intention of s335(4) is, in my opinion, to identify the basis for imputing conduct to an organisation for the purpose of s335 and it does so to the exclusion of the provisions of s349(2).

The prosecutor referred in written submissions to Trade Practices Commission v Tubemakers of Australia (1983) 76 FLR 455 at 476 per Toohey J which I had mentioned in my earlier decision concerning the no case submission of the defendant. I said, in somewhat general terms, that the better view is that a provision such as s335(4) does not displace the common law. However as the prosecutor rightly notes in its written submissions, the observations of Toohey J concerned the common law principles relating to the intent of a corporation, which, in the present proceedings, is dealt with by s335(3) which I have already discussed.

I have, to this point, not dealt with the conduct of McArthur which is said to evidence an offence on days other than 20 and 21 May 1993.  However in one matter, NI 114 of 1994, the charges concern the conduct of McArthur in June 1993 when, at the offices of OPDU, he again expressed his intention to prevent Spiroulias from working at the city construction site.  It was an event that received limited attention in the submissions of the prosecutor and the defendant.  However the charges relating to the incident in the offices of OPDU, which is also the registered office of OPDU (NSW): see r5 of OPDU (NSW) rules annexed to the prosecutor's affidavit of 17 May 1994, depend upon the refusal of Spiroulias on 20 May 1993 to engage in industrial action.  The alleged reason for the June 1993 conduct of McArthur is the reason for his conduct in May 1993.  The conclusion I earlier reached concerning the reason as it relates to the events in May 1993 applies equally to his conduct in June 1993.  McArthur's conduct in June 1993 was still that of the bully punishing Spiroulias for his aggression and defiance in May 1993.  It was not punishment for asserting a right protected by ss334 and 335.

The prosecutor has failed to prove all the elements of the charges laid.  Accordingly each of the informations is dismissed.

I certify that this and the preceding thirty-nine (39) pages are a true copy of the Reasons for Judgment herein of his Honour Justice Moore.

Associate:

Date:8 May 1995

Counsel for the Prosecutor:         Mr P. Menzies QC with

Mr M.A. Robinson

Solicitor for the Prosecutor:       Mr G. Johnston of the

Building Industry
  Task Force

Counsel for the Defendant:     Mr M. Taylor

Solicitor for the Defendant:        Mr D. Reiss of the Construction, Forestry, Mining and Energy Union

Dates of hearing:                   14 April, 10 June,

12 September,

22-24 November 1994,

8 February, 6 March 1995

Date of judgment:                   8 May 1995