Odco Pty Ltd v Building Workers Industrial Union of Australia
[1990] FCA 248
•05 JUNE 1990
Re: ODCO PTY LIMITED
And: BUILDING WORKERS' INDUSTRIAL UNION OF AUSTRALIA; WILLIAM OLIVER;
JOHN McPARTLIN; VICTORIA STATE BUILDING TRADES UNION; HUGH HARKINS;
MAX BURR; STEVEN CLANCY; ALAN VOSTI and MARTIN BINGHAM
No. VG 151 of 1988
FED No. 248
Contempt of Court
COURT
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Wilcox J.(1)
CATCHWORDS
Contempt of Court - Order restraining respondents, inter alia, from preventing, hindering or interfering with the acquisition by any builder or building contractor of the services of a persons to perform work on a building site and from advising any builder or building contractor not to acquire or to discontinue the acquisition of any such services - Termination of services of applicant following visit to building site by organiser employed by first respondent - Whether conduct of organiser contravened order.
Trade Practices Act 1974
HEARING
SYDNEY
#DATE 5:6:1990
Counsel for the Applicant: Mr C.N. Jessup QC and Mr T.P. Tobin
Solicitors for the Applicant: McHenry Harris
Counsel for the Respondents: Mr M.J. Williams QC and Mr S.R. Rothman
Solicitors for the Respondents:Taylor and Scott
ORDER
1. The Notice of Motion of the applicant dated 22 February 1990 be dismissed.
2. The applicant pay to the Building Workers' Industrial Union of Australia its costs of the motion.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. (See also Order 37 rule 2(3))
JUDGE1
This is an application by Odco Pty Limited, the applicant in a long-running proceeding in this Court, for orders punishing one of the respondents to that proceeding, the Building Workers' Industrial Union of Australia ("the BWIU"), for contempt of Court.
Under the trade name "Troubleshooters Available" Odco carries on the business of supplying to construction companies and other builders the services of individual workers, whom it calls "sub-contractors". The workers are engaged on a casual basis from day-to-day; although, in practice, a particular person may remain on a particular site for a substantial period of time. The "sub-contractors" include both tradesmen and labourers.
On 24 August 1989 Woodward J gave judgment in the principal proceeding. Amongst other findings, his Honour determined that the "sub-contractors" were not, in law, employees of either Odco or the builder to whom they were assigned. He made a formal declaration to this effect. Woodward J also found that some of the respondents had been involved in breaches of ss.45D and 45E of the Trade Practices Act 1974; but his Honour did not grant any injunction at that stage. However, pursuant to liberty reserved, Odco subsequently applied for an interim injunction, pending the disposal of an appeal which had been lodged against his Honour's orders. That application was successful. On 8 November 1989 Woodward J ordered as follows:
"The firstnamed Respondent (that is the BWIU) be restrained until the hearing and determination of the proceeding or further Order:-
(a) from preventing, hindering or interfering with the acquisition by any builder or building contractor or sub-contractor from the Applicant of the services of any person to perform work on a building site and from advising any builder building contractor or sub-contractor not to acquire or to discontinue the acquisition of any such services;
(b) from advising or attempting to persuade or in any manner coercing any person to abstain from taking, or to withdraw from, or to suspend the performance of his, employment in building work by a builder or building contractor or sub-contractor and part of whose building work is or has been performed or is proposed by the builder or building contractor or sub-contractor to be performed in pursuance of an arrangement with the Applicant, except in a case in which the reason or each of the reasons for giving the said advice or for attempting the said persuasion or for the said coercion is wholly unrelated to the circumstance that part of the building work is or has been performed or is proposed to be performed in pursuance of such an arrangement;
(c) from advising or attempting to persuade or in any manner coercing any person to abstain from taking, or to withdraw from, or to suspend the performance of his, employment by a builder or a building contractor or sub-contractor in building work on a building site on which building work is being performed in pursuance of an arrangement between a builder or a building contractor or sub-contractor (other than his employer) and the Applicant, except in a case in which the reason or each of the reasons for giving the said advice or for attempting the said persuasion or for the said coercion is wholly unrelated to the circumstance that on that building site building work is being performed in pursuance of an arrangement to which the Applicant is a party."
Odco claims that the BWIU has contravened that order. In a Notice of Motion dated 22 February 1990 Odco made three charges against the union. They were as follows:
"1. The First Respondent by its servant or agent Max Hart on 2nd February, 1990 prevented, hindered or interfered with the acquisition by Richard Crookes Constructions Pty. Ltd. from the Applicant of the services of persons to perform building work at:-
(a) Khartoum Road and Talaver Road, North Ryde in the State of New South Wales ('the North Ryde site');
(b) 51 Holt Street, Surry Hills in the said State ('the Holt Street site'); in wilful disobedience or contravention of the order of Woodward J. made 8th November, 1989 herein ('the 8th November Order').
2. The First Respondent by its servants or agent Max Hart on 2nd and 5th February, 1990 advised Richard Crookes Constructions Pty. Ltd. to discontinue the acquisition of the services of persons to perform building works from the Applicant in respect of the North Ryde site, the Holt Street site and/or generally in wilful disobedience or contravention of the 8th November Order.
3. In wilful disobedience and/or in contravention of the 8th November Order the First Respondent by its servant or agent Max Hart on or about 5th February, 1990 advised or attempted to persuade persons to withdraw or suspend the performance of their employment by Richard Crookes Constructions Pty. Ltd. in building work on the North Ryde site where building work was or had been performed in pursuances of an arrangement between Richard Crookes Constructions Pty. Ltd and the Applicant where the reason or reasons for such was not wholly unrelated to the circumstance that on that site building work was being performed in pursuance of an arrangement between the Applicant and Richard Crookes Constructions Pty. Ltd. PARTICULARS TO THE FIRST CHARGE The prevention, hindrance or interference occurred by reason of a conversation between the said Hart and Ron Frankel, General Manager of Richard Crookes Constructions Pty. Ltd. PARTICULARS TO THE SECOND CHARGE The particulars to the first charge are referred to and repeated. Further, the advice was oral and occurred in conversations between the said Hart and Mr. Sim and Mr. Ostaric on behalf of Richard Crookes Constructions Pty. Ltd. PARTICULARS TO THE THIRD CHARGE The advice and attempted persuastion was oral and occurred at the North Ryde site."
In their final submissions, and in the light of the evidence, counsel for Odco abandoned the third charge. But they pressed the first and second charges. So it will be necessary to set out the facts relating to those matters.
Richard Crookes Construction Pty Ltd ("Richard Crookes") is a construction company based in Sydney. During recent times it has undertaken a number of projects simultaneously. On 2 and 5 February 1990 - the two dates mentioned in the Statement of Charge - the projects of the company included extensions to a building occupied by CCH Printing at the corner of Khartoum and Talavera Roads, North Ryde, and the construction of a new office building at 51 Holt Street, Surry Hills.
The 2nd of February 1990 was a Friday. In common with many other Sydney days in early 1990, it was also very wet. The weather was not merely rainy; there was thunder and lightning at the North Ryde site. Fairly early on the morning of that day, Zelco Ostaric, the Richard Crookes site foreman decided to abandon work for the day. He sent the workers home, informing them that the site would also be closed on the following day, the Saturday, because of the weather. However, before everyone had left the site, Mr Ostaric noticed some exposed gyprock. Fearing that the gyprock would be damaged by the rain, he took three men with him onto the roof of the building to cover it. As the four men finished this task, a BWIU organiser, Peter Gregory ("Max") Hart arrived at the site. He had gone to the site to investigate a complaint about overtime being stopped for the Saturday. (The award provided that employees were entitled to payment for a Saturday unless they were informed by noon on the preceding Thursday that they would not be required on the Saturday. The complaint was that Richard Crookes was not entitled to close the site on Saturday 3 February, without offering payment, by a notice given on the preceding day). However, Mr Hart happened to arrive when the four men were on the roof. He felt concern for their safety, having regard to the lightning activity. He was angry they had been exposed to that danger. In his anger, he initially put aside the purpose of his visit. Mr Hart began his conversation with Mr Ostaric by upbraiding him for putting the men on the roof. Whilst Mr Hart and Mr Ostaric were speaking, the other three men passed them. Mr Hart asked who they were and, in the course of his answer, Mr Ostaric mentioned that one of the men, Steve Parker, was supplied by Troubleshooters. As Mr Hart was informed, Mr Parker was the only Troubleshooters man on the site. He had been employed as a labourer on the site for several weeks. Mr Hart asked how much Mr Parker was being paid. He was told $16 per hour. Mr Hart asked whether the other men were getting the same rate and Mr Ostaric said that he did not know but would check on it.
In evidence, Mr Ostaric said that this was the whole of the conversation concerning Troubleshooters. But he also said that his diary entry for the day, which he identified, was accurate. This entry includes the following:
"BWIU arrived on site (Max Hart) wasn't to
(sic) happy with the Troubleshooter guy on site because he classed it as body hire."
His recollection being refreshed by the diary entry, Mr Ostaric agreed, in cross-examination, that Mr Hart had said that Troubleshooters were "a body hire company" whose workers were on a different rate of pay to other workers. I accept this evidence. Such a comment by Mr Hart would be consistent with his antagonism - which he freely conceded in the witness box - to Troubleshooters' method of operation, and his stated reasons for that attitude. Mr Ostavic further agreed that Mr Hart went on to say words to the effect:
"That is fine. We do not mind Troubleshooters being on site as long as all labourers on the site get the same rate of pay."
Both Mr Ostaric and Mr Hart agreed that there was no further conversation about Troubleshooters on that day. In particular, Mr Ostaric denied that Mr Hart made any reference to a ban on the site because of Troubleshooters. He said that Mr Hart's main concern was the job being open on Saturday, and this was the subject to which the two men turned after the reference to Troubleshooters. About the time they did so, Mr Parker came back. He asked Mr Ostaric about working on the following day and Mr Hart intervened to tell him that he should come to work on that day.
Mr Hart telephoned Ronald Frankel, the general manager of Richard Crookes, from the North Ryde site. According to Mr Frankel, Mr Hart introduced himself and asked Mr Frankel whether he was aware that his "site people" had closed the site on Saturday without giving the requisite notice. Mr Frankel responded: "We are not here to re-write the award. The award stands as such and the site is now re-opened." Mr Frankel said that Mr Hart then asked him whether he was "aware that there are Troubleshooters on your site". Mr Frankel commented in his evidence that he believed this inquiry was "quite secondary to the issue that I had been rung about". He knew, or ascertained from Mr Hart, that Troubleshooters was a labour hire agency and he informed Mr Hart that it was not his company's policy to use labour hire agencies.
Mr Frankel subsequently spoke to Philip Sim, the project manager of Richard Crookes responsible for the North Ryde and Surry Hills sites. Mr Frankel instructed Mr Sim not to use Troubleshooters any more as the policy of the company was "that we do not have labour hire, we have got enough men, we use our own men." Mr Frankel also spoke to Mr Sim about Saturday work.
Mr Sim telephoned Mr Ostaric. The two men discussed the matter of Saturday work and Mr Hart's reference to the same rate of pay for all labourers. There was no mention of a ban. Mr Sim told Mr Ostaric to telephone all the sub-contractors and inform them that the site would be open on the Saturday. Mr Sim also told Mr Ostaric not to use Troubleshooters anymore. He did this because of Mr Frankel's instruction to him. Mr Sim said in evidence that he himself had arranged for Troubleshooters to send a man to North Ryde, and also some men to the Surry Hills site. When he did this he was not aware of the company policy, having only been employed by Richard Crookes since November 1989. He said that his instruction to Mr Ostaric, and his similar instruction to the foreman at Surry Hills, was dictated only by Mr Frankel's instruction to him. In cross-examination he agreed with the assertion that "there was never any threat made by Max Hart to you or your company or its personnel in relation to any ban or pressure not to use Troubleshooters".
The North Ryde site was open on Saturday 3 February. But it was wet. Only Mr Ostaric and one labourer turned up. No work was done. Mr Parker had apparently been contacted by Mr Ostaric pursuant to Mr Sim's direction. He did not return to the site, either on the Saturday or subsequently.
On Monday 5 February there was a full turn-out of workers at the site. Mr Hart arrived at about 8am. He had a meeting with the men working on the site and then went to Mr Ostaric's office with some representatives of the site workers. Mr Sim was present at the time. Mr Hart said that the men were going home because there were insufficient amenity sheds. Mr Ostaric conceded in evidence that the sheds on site did not meet award requirements and that there had been an earlier complaint about that matter. During the course of this conversation Mr Ostaric mentioned Troubleshooters. His recollection is that he asked Mr Hart: "Are we allowed to have Troubleshooters on site?" Mr Hart replied: "Yes". Mr Ostaric then asked him: "What about the difference in pays?" Mr Hart responded: "That is your problem. Sort it out." Mr Ostaric said in evidence that, in further conversation, Mr Hart expressed his opinion that all the men should be on the same rate of pay.
Mr Sim's account of the discussion on 5 February broadly corresponds with that of Mr Ostaric. However, he recollects a short conversation with Mr Hart, before the meeting with the men, in which Mr Hart said to Mr Ostaric "that he had broken every rule in the book, he had guys working there in the wet weather, he was labour hiring, pyramid hiring, he had just broken every award that the union had got together". But Mr Sim agreed that, after the site meeting, the delegation - including Mr Hart - specifically agreed that Troubleshooters could work on site. Mr Sim attributes the demand for equality of pay to one of the site workers, the bricklayers' delegate, rather than to Mr Hart; but it is clear that Mr Hart supported this position.
There was a further meeting on Tuesday 6 February, mainly relating to the sheds. On a subsequent day there was a telephone conversation between John Sutton, a BWIU co-ordinator and Mr Frankel. But I need not refer to these conversations. It is not suggested that they advance the case made by the applicant in respect of 2 or 5 February, the dates specified in the Statement of Charge.
During the course of the hearing a number of matters arose which it is not necessary to resolve. Chief amongst them was the question whether, assuming that Mr Hart had interfered with Richard Crookes' engagement of Troubleshooters men, this was an action which ought to be attributed to the BWIU. That issue arises because Mr Hart conceded that he was under standing instructions from the State Secretary of the union, Donald McDonald, as to the method of dealing with occurrences of body hire on sites. A memorandum from Mr McDonald to all organisers, dated 9 August 1989, was put into evidence. This memorandum required organisers to obtain information about "body hire, pyramid contracting and multiple contracting", when they came across it, but to "take no action and make no demands". Both Mr Hart and Mr McDonald deposed that reminders about this memorandum were constantly given at organisers' meetings. Of course, the existence of this memorandum would not absolve the union from responsibility if the action of an organiser was truly the actions of the union. But I need not stay to consider whether the actions of Mr Hart, relevant to this case, should be attributed to the union or not; in my opinion, the proved actions do not contravene the Court's order.
In reaching conclusions about the events of 2 and 5 February 1990 I am content to have regard primarily to the evidence adduced on behalf of the applicant, which puts the applicant's case at its highest. But, in so doing, I would not wish to be thought unwilling to accept the evidence of Mr Hart. On the contrary, he favourably impressed me, both as a witness and a person. I think that everything he did in relation to this matter was motivated by sincere concern for the welfare of the men working at North Ryde and for the maintenance of award conditions. His insistence upon equality of pay for all persons employed in like work on a particular site may properly be criticised on the grounds of logic; to require the same hourly rates for permanent employees as for casuals is to overlook the fringe benefits - sick pay, annual and long service leave, etc - which are available to the former but not the latter. But, whatever the logic of his position, I have no doubt that Mr Hart genuinely believes in the principle of equal rates of pay. In saying to Mr Ostaric and Mr Sim that all workers on the site should receive the same rate of pay as that paid to a Troubleshooters man doing a like job, he was doing no more than expressing his strongly felt personal view.
It is possible to deal with the matter purely on the basis of the applicant's evidence because that evidence falls well short of establishing the charges made.
As to the first charge, the allegation is that, on 2 February 1990, Mr Hart "prevented, hindered or interfered with" the acquisition by Richard Crookes of the services of Troubleshooters men. In support of this allegation, counsel for the applicant call attention to Mr Ostaric's diary note, in which Mr Hart is reported as being not "happy with the Troubleshooters guy on site because he classed it as body hire." I accept that Mr Hart did express antipathy to Troubleshooters. Counsel also point to Mr Ostaric's evidence that Mr Hart said that "we do not mind Troubleshooters being on site as long as all labourers on the site get the same rate of pay". This evidence, according to counsel, establishes an interference with the use by Richard Crookes of Troubleshooters (charge 1) or "advice" to discontinue that use (charge 2). As counsel say, a communication may constitute advice notwithstanding that advice has not been sought.
I cannot agree with either of these characterisations of Mr Hart's conduct. I accept that Mr Hart is strongly opposed to the practice of labour hire, on an "all-in" payment basis, that he is hostile towards the applicant because it pursues that practice, that he made these attitudes clear to Mr Ostaric on 2 February and that he contended for equality of rates of pay. But neither expressly nor impliedly did he interfere with Richard Crookes' right to continue to use Troubleshooters' services or advise against that use. According to Mr Ostaric, Mr Hart expressly stated that he had no objection to the continued use of Troubleshooters, provided others got the same rate of pay, and Mr Hart intervened to invite the only Troubleshooters' man at North Ryde, Mr Parker, to return to work on the following day.
The events of 5 February are relevant only to charge 2. But, although at that time Mr Hart reaffirmed the attitude to Troubleshooters he had expressed on the preceding Friday, this time to Mr Sim as well as to Mr Ostaric, his conduct on that day cannot be described as "advice" not to use the services of Troubleshooters.
The above reasons are not intended to deny the possibility that a person may "interfere" with a relationship between two other persons in an indirect way. If, for example, Mr Hart had sought to enforce his view about the desirability of equal hourly rates, as between Troubleshooters' men and permanent employees, by imposing or threatening a ban or other industrial action unless Richard Crookes paid equal rates, it would probably be correct to describe his conduct as interfering with the acquisition by Richard Crookes of Troubleshooters' services. The right to acquire would have been subjected to an onerous condition, the imposition of which might persuade Richard Crookes to discontinue using Troubleshooters. But Mr Hart did not take that step. There was industrial action on 5 February but this arose out of an unrelated matter: the inadequacy of the amenities sheds.
It is understandable that the applicant brought this motion. The applicant might well have assumed that the sudden withdrawal of its men from the two Richard Crookes sites on 2 February was related to Mr Hart's actions on that day. But the evidence of Mr Frankel clearly establishes that the withdrawal of the men was not occasioned by any interference or advice from Mr Hart. Mr Frankel became aware of the fact that a Troubleshooters' man was on the North Ryde site through Mr Hart. But no demand or threat was made by Mr Hart to Mr Frankel. No advice was given to him. Mr Frankel withdrew the Troubleshooters' men from both sites because of a company policy against labour hire which went back many years, until well before Troubleshooters came onto the scene. If Mr Sim had not been new to the company, and ignorant of the policy, the services of the applicant would probably not have been retained in the first place.
The motion must be dismissed with costs.
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