Stuart-Mahoney v CFMEU and Anor (No.2) - [2008] FMCA 1015

FEDERAL MAGISTRATES COURT OF AUSTRALIA

STUART-MAHONEY v CFMEU & ANOR (No.2)

[2008] FMCA 1015

INDUSTRIAL LAW – Alleged coercion of employees to be members, or become financial members of a union – applications made out in part.

Workplace Relations Act 1996, ss.789, 790, 797, 809
Building, Construction and Industry Improvement Act 2005

National Tertiary Education Industry Union v Commonwealth of Australia (2002) 117 FCR 114
Fox v Percy (2003) 214 CLR 118
Jones v Dunkel (1959) 101 CLR 298
Construction, Forestry, Mining and Energy Union (CFMEU) v Hadgkiss [2007] FCAFC 197
Hadgkiss v Construction, Forestry, Mining and Energy Union (CFMEU) [2008] FCAFC 22

Applicant:

KAREN STUART-MAHONEY

First Respondent:

CONSTRUCTION FORESTRY MINING & ENERGY UNION

Second Respondent:

JASON DEANS

File Number:

MLG 1287 of 2007

Judgment of:

Burchardt FM

Hearing dates:

12, 13 & 16 June 2008

Date of Last Submission:

16 June 2008

Delivered at:

Melbourne

Delivered on:

4 August 2008

REPRESENTATION

Counsel for the Applicant:

Mr R.P. Dalton

Solicitors for the Applicant:

Trindade Farr & Pill

Counsel for the Respondents:

Mr C.W. Dowling

Solicitors for the Respondents:

Jesse Maddison

THE COURT DECLARES AND ORDERS THAT:

The Respondents have contravened s.789 and s.790 of the Workplace Relations Act 1996 (“the Act”) in respect of Wayne Gauci for the reasons set out in the Court’s reasons for judgment.
The Respondents have contravened s.797 of the Act in respect of George Galea for the reasons set out in the Court’s reasons for judgment.
The Applicant shall file and serve any further affidavits on or before

18 August 2008
.
The Respondents shall file and serve any further affidavits on or before 1 September 2008.
The matter be adjourned for hearing on penalty on 19 September 2008 at 10.15 am.
The parties shall be granted liberty to apply.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 1287 of 2007

KAREN STUART-MAHONEY

Applicant

And

CONSTRUCTION FORESTRY MINING & ENERGY UNION

First Respondent

JASON DEANS

Second Respondent

REASONS FOR JUDGMENT

Introduction

In this matter the Applicant, who is an inspector appointed under the Building, Construction and Industry Improvement Act 2005, seeks the imposition of civil penalties upon both Respondents.
The conduct alleged against the Respondents arises from events on 12 September 2006, on which date Mr Deans, the Second Respondent, is alleged to have subjected a Mr Galea, a Mr Gallagher and a

Mr Gauci to various forms of behaviour that constituted a contravention of ss.789, 790 and 797 of the Workplace Relations Act 1996 ("the Act").
For the reasons that follow, I have come to the conclusion that Mr Deans did conduct himself in such a fashion as to contravene ss.789 and 790 of the Act in respect of Mr Gauci. I further accept that Mr Deans contravened s.797 of the Act in respect of Mr Galea. I have also concluded that Mr Deans did not contravene s.790 of the Act in respect of both Mr Galea and Mr Gallagher and did not contravene s.797 of the Act in respect of Mr Gallagher.

Formal matters

There is no issue taken with what might be said to be called strictly formal matters, such as the appointment of Ms Stuart‑Mahoney as an inspector, her entitlement to bring this proceeding, and the incorporation of and the identity of the First Respondent as a trade union registered as an organisation under the Act.
It should also be noted that, although they point to different sections of the Act as grounding the liability, it is expressly conceded that the conduct of Mr Deans was, in every relevant possible way, also the conduct of the Construction Forestry Mining and Energy Union ("the CFMEU").

The legislation

Those portions of the legislation most relevant to this proceeding do need, in the context of this case, to be set out in full:
Section 789
(1)     A person must not organise or take, or threaten to organise or take, any action against another person with intent to coerce the other person or a third person:
(a)     to become, or not become, an officer or member of an industrial association; or
(b)     to remain, or cease to be, an officer or member of an industrial association.
Section 790
(1)     A person must not make a false or misleading representation about:
(a)     another person's obligation:
(i)     to be, or become, an officer or member of an industrial association; or
(ii)     not to be, not to become or to cease to be, an officer or member of an industrial association;
Section 797
(3)     An industrial association, or an officer or member of an industrial association, must not:
(a)     take, or threaten to take, action having the effect, directly or indirectly, of prejudicing a person in the person's employment or prospective employment; or
(b)     advise, encourage or incite a person to take action having the effect, directly or indirectly, of prejudicing another person in the other person's employment or prospective employment;
for any of the following reasons, or for reasons that include any of the following reasons:
(f) the person has not paid, has not agreed to pay, or does not propose to pay, a fee (however described) to an industrial association;
I accept that in respect of s.789 of the Act proof of the requisite intent is necessary (see National Tertiary Education Industry Union v Commonwealth of Australia (2002) 117 FCR 114 at [65], per

Weinberg J).
I further accept that the intention to coerce involves two elements: first, that it needs to be shown that it was intended that pressure be exerted which, in a practical sense, will negate choice; and second, that the exertion of the pressure must involve conduct that is unlawful, illegitimate or unconscionable (see Respondents' submissions paragraph 7 and the authorities there cited).
There was argument before me as to the extent to which s.790 and s.797 of the Act could both be attracted either by the circumstances of this case or more generally. Putting the matter in the round, the Respondents submitted that there was a distinction between matters associated with being a member of the union (s.790) and being a financial member of the union (s.797).
The Applicant took issue with this assertion and pointed to the different divisions of the Act in which the two sections are contained and submitted that a contravention of both sections of the Act could be made out on the facts of the case.
I will return to this issue later. Suffice to say for the moment I accept the submissions of the Respondents as to the applicability of s.790 of the Act to the particular facts of the case. But I also accept the submissions of the Applicant that there may well be circumstances in which the same conduct could infringe both sections of the Act.
Both parties agreed that the reverse onus contained in s.809 of the Act applies to the alleged contraventions of s.789 and s.797. Once again, I should indicate that I accept the Respondents’ submission that, notwithstanding this, there is an obligation upon the Applicant to raise at least sufficient, so to speak, for that section of the Act to have work to do.

The facts

It is common cause that on 12 September 2006 Mr Galea and Mr Gallagher attended the CSL Parkville site at about 7.00 am. At about 7.15 am they commenced a process of induction conducted by Mr Deans, who was at one and the same time the occupational health and safety delegate elected by the employees for the site and the CFMEU shop steward.
There is in the ultimate little dispute that between 7.25 am and 7.30 am Mr Gauci arrived at the site.
It is common cause that Mr Galea and Mr Gallagher were respectively a carpenter and labourer engaged to do form work in anticipation of a concrete pour envisaged as taking place on 13 September 2006. It is common cause that Mr Gauci was an excavator operator who was self‑employed.
Mr Galea and Mr Gallagher were employed by a firm called Direct Hire Services which hired labour to a firm which can be conveniently referred to as Meridian which was a subcontractor of the head contractor on the site, Hooker Cockram.
It is common cause that Mr Galea was and Mr Gallagher thought he was an unfinancial member of the CFMEU on 12 September 2006. It is common cause that Mr Gauci was not a member of the CFMEU on 12 September 2006 and it is unchallenged that he had resigned from the CFMEU on a final and conclusive basis in 2004.
It is common cause again that Mr Galea and Mr Gallagher were inducted at the same time as at least three other employees, whose names were Mr Trounson, Mr Tenace and Mr Simmonds.
Following the conclusion of the induction process, and unlike Mr Trounson, Mr Tenace and Mr Simmonds, Mr Galea and Mr Gallagher did not proceed immediately to commence work. It is common cause that Mr Gallagher and Mr Galea, in order of time, did not commence work until they had regularised their financial status as members of the union on that day.
It is equally common cause that Mr Gauci never commenced to work that day and that he contacted the Australian Building and Construction Commission ("ABCC") on that day to complain as to why he had not in fact started work.
Thus far I have been able to express the narrative in terms that do not involve disagreement.
It is also a fact that it is not capable of being contested that Mr Galea made a statement to the ABCC on 27 February 2007, in which he made complaint of his not being able to start work early on 12 September 2006. In that statement, which was made by way of statutory declaration, Mr Galea said that the reason he had been delayed in starting work was because Mr Deans would not allow him to do so because he was not a financial member.
On 21 September 2006 a Mr Blackmore, the site foreman for Meridian, also made a statement to the ABCC. He, likewise, gave a version of events that went to support the proposition that the reason all three of the persons to whom I have referred did not start work was their non‑membership of the union or irregular position as to being financial.
Both Mr Galea and Mr Blackmore retreated, to a greater or lesser extent, from their statutory declarations in their oral evidence before the Court. Mr Gauci, who as I have said, made a contemporaneous complaint to the ABCC on the date of the events in question and who signed a statutory declaration nine days later, on 21 September 2006, did not resile one iota from the evidence he had earlier given.
It is at this point that one has to get into the evidence in far greater detail.
Because of the way the case has ultimately proceeded, it is appropriate to examine the very stark difference between the evidence of Mr Gauci and Mr Deans first. The reasons why this is so will hopefully become apparent in due course.
The evidence of Mr Gauci, which was consistent as between his statutory declaration in September 2006, his affidavit affirmed on 27 March 2008 and in his oral evidence before me, was that he has been in the building industry for a number of years operating a construction and earthmoving business as a sole trader. Prior to 2004 he was a member of the CFMEU but chose to resign; he gave the reason as disaffection with what the union had or had not done for subcontractors prior to the introduction of what all parties refer to as the Howard laws in relation to industrial law.
Mr Gauci said that on 11 September 2006 he was contacted by John Bull, operations controller from Eastern Plant Hire, and told about a job at Meridian Concrete. He says, and Mr Bull agrees with this, that Mr Bull told him that it was "full union". Mr Gauci says, and Mr Bull supports this, that Mr Gauci told him on the phone that he did not have to be a member of the union and that Mr Bull was prepared to allocate him the work nonetheless.
Mr Gauci's evidence was that he was prepared to attend the union site at CSL Parkville because he often attends union sites without difficulty, notwithstanding his non union membership.
Mr Gauci says that he told Mr Bull he would be late on site because of family commitments, but Mr Bull did not recall that conversation.
Mr Gauci said that in any event he got to the site a little earlier than he had anticipated, because of light traffic, and walked towards the area for induction. Mr Gauci says that he met Mr Deans just outside what turned out to be the site office and saw that Mr Deans had a sign on his helmet saying "Spike". (This assertion was not in his statutory declaration or affidavit but was added in evidence).
Mr Gauci said that he met Mr Deans at the doorway in a corridor outside the office, on a steel staircase. He said that he had never had a problem not being a union member until this incident, and had not met Mr Deans before. It is common cause that Mr Gauci arrived while the other workers were being inducted, in that their induction had not been completed.
Mr Deans put the arrival of Mr Gauci rather differently. He said that Mr Gauci arrived late, knocked on the door, and that Mr Deans told Mr Gauci that he was late and would have to wait.
Mr Deans confirmed, however, as Mr Gauci asserted, that whatever interchange took place between them, and wherever it took place, i.e. outside or at the doorway, the next material event, so far as Mr Gauci was concerned, is that Mr Deans took him to the union office and gave him the induction form to fill in.
Mr Deans said that he did this in effect to calm Mr Gauci down, because Mr Gauci was somewhat difficult upon his arrival.
Mr Gauci plainly filled out the induction form and, relevantly, left the passages dealing with union membership blank, because he was not a member.
Mr Gauci said that Mr Deans went to and from the two offices on a number of occasions. Mr Deans said that this happened only twice. Mr Deans said that on the second occasion when he returned Mr Gauci had completed the form.
It is at this point that a critical difference of recollection emerges.
Mr Gauci says that when Mr Deans saw that he had not filled in the union membership section Mr Deans said the words to him, "Why have you not filled out the union membership section?" to which Mr Gauci says he replied, "I am not a member of the union. I hung up my union ticket in September 2004."
Mr Gauci's account goes on to suggest that Mr Deans said to him, "You are not working on this site. You are not in the union; you are not working with us," to which Mr Gauci says he replied, "It is against the law. You cannot stop me working," and that Mr Deans replied, "Well, I am the boss here. I run the union. Basically, it is a union site, no union membership - you can't work on this site."
Mr Gauci says he replied, "I have all my tickets and requirements to work on a site, and you have not even looked at these." Mr Gauci says that he showed Mr Deans his folder of materials with all his documentation, but that Mr Deans refused to look at it.
Mr Deans puts the conversation very differently. He says that when he returned to check the progress that Mr Gauci had made and asked about the non‑completion of the union membership section Mr Gauci immediately became violent and intemperate in his language, saying that he did "not want to be a member of the fucking union" and further words to that effect.
Mr Deans confirms that there was reference by Mr Gauci to the fact that it was not the law that he had to be in the union (P-170).
Mr Deans says that Mr Gauci became heated, that he replied to Mr Gauci's tirade with an observation to the effect, "Well, there are benefits to being in a union," whereupon Mr Gauci continued to express himself in offensive language.
Mr Deans then left and went, it is common cause, to the other group of inductees. Although this was not traversed in detail, it seems uncontroversial that three of the workers in the room were given permission to proceed to commence work, and Mr Galea and

Mr Gallagher accompanied Mr Deans to an office which I think was more probably the union office, because they were going to discuss union business.
Mr Deans says that he asked Mr Gauci to step outside, which Mr Gauci accepts was the case. Mr Gauci says he waited outside until joined by Mr Gallagher and Mr Galea. It should be noted that the evidence given by Mr Gauci to the effect that he saw Mr Deans with the name "Spike" on his hat was not the subject of cross‑examination (the transcript at P-124 requires careful reading but it is clear that the “Spike” point was not directly traversed). This is important because Mr Deans, when he gave evidence, said that he had never had his name on his hard hat throughout his 19‑year career.
Mr Gauci said they met in a corridor outside on a steel staircase

(P-124). Mr Deans said there were no steel staircases on the site.
In the ultimate, there is simply no way of reconciling the different accounts given by Mr Gauci and Mr Deans, particularly on the critical remarks allegedly made by Mr Deans to the effect that Mr Gauci could not work on the site because he was not in the union and that it was a union site, at which if you were not a member you could not work. In fact, when one looks at the transcript closely (P-129), it was not put to Mr Gauci in terms that the words he ascribed to Mr Deans in his affidavit at paragraph 12 were not said.
When Mr Dowling returned to the matter (at P-134‑135) he did canvass the question as to whether Mr Deans had said "I run the site," and got the answer from Mr Gauci that Mr Deans had said "I run the union here."
Nonetheless, and despite the various qualifications that Mr Gauci made to his evidence, I believe Mr Gauci when he ascribes to Mr Deans the words set out in paragraph 12 of his affidavit, or words no materially different therefrom. That was his evidence in the ultimate when the matter was put to him in terms again (at P-138).
In making this finding, I have relied both upon the demeanor of Mr Gauci and from a number of inherent probabilities that the case produces.
I have re‑read Fox v Percy (2003) 214 CLR 118 and I have also borne in mind some more recent extra curial observations about the value or otherwise of demeanor as an aid to ascertaining the truth (see, for example, “Problems with fact finding” (2006) ALJR 667 by
Justice David Ipp).
Nonetheless, I thought Mr Gauci was telling the truth. The transcript will not wholly reveal the straightforward and direct way in which he responded to questions under cross‑examination. I was impressed by Mr Gauci, notwithstanding that I do not, as I state later, accept every single aspect of his evidence.
I accept that Mr Gauci is a man with firm views about the undesirability of membership of the union. I would be prepared to accept the criticism advanced by counsel for the Respondents that he would perhaps be of a disposition given to respond sharply when what he might perceive as union problems presented themselves.
Against this, however, the following matters need to be borne in mind:
a)Mr Gauci knew, because he had been told by Mr Bull, that this was a union site;
b)notwithstanding this, Mr Gauci had not had any problems attending union sites prior to this incident;
c)Mr Gauci had in fact found that on approximately 50 per cent of the union sites he visited his union membership was not even raised;
d)Mr Gauci was running somewhat late, but had every reason to expect that this would be of no moment as he thought he had cleared it with Mr Bull;
e)when Mr Gauci arrived, Mr Deans was in the process of inducting the five employees who had arrived earlier;
f)Mr Gauci had never previously met Mr Deans and did not know his name, still less any nickname;
g)Mr Gauci was in fact commenced in the induction process in the ordinary way, inasmuch as he was immediately given an induction form - I accept that he was given an induction form in a separate room, because Mr Deans had already advanced in the induction process with the other employees already present;
h)it is entirely consistent with the objectively ascertained facts that Mr Deans would have sent Mr Gauci off to fill in his induction form in a separate room - I think it is not a matter of any moment whether Mr Gauci knocked on the door and was taken to another room or, as he says, met Mr Deans outside;
i)although Mr Deans vehemently denies that he has a sticker with his name on it, I note that stickers do play some part at the CSL Parkville site, because it was common practice to put stickers on inductees' helmets if they were not going to be around for longer than a few days;
j)whether or not Mr Gauci was obstreperous or in any way difficult, the fact is that what happened to him was he commenced the normal induction process;
k)that normal induction process, on any view, was interrupted when Mr Deans saw that Mr Gauci was not a union member;
l)if Mr Gauci responded, as is very probable, by making remarks critical of the union - and, on Mr Deans' view, in bad language - I find it entirely improbable that Mr Deans would have replied other than in strong language himself. Mr Deans did not impress me for a moment as being the sort of individual who would be likely to take a step back if confrontation presented itself.

I was particularly impressed by Mr Gauci's demeanour in answering questions about the identity of the person who advised him to go to the ABCC. He at first sought not to do so, and clearly did not wish to do so. But when directed to do so, he did so forthwith and in a candid way in cross‑examination. He had his story and he stuck to it. His demeanour was not in any way shifty or evasive.
The difficulty, however, is that, as I have already said, Mr Gauci either makes up the critical parts of the conversation or he does not. For the reasons I have given, I believe him.
This does not mean, however, and in fairness to Mr Deans I should make this plain, that I am making a finding that he perjured himself in his evidence. While it is of course possible that he has simply lied, it is of course also possible that, through a process of reconstruction and a very natural desire to self‑exculpate, he has come to believe a version of the events which is inconsistent with what I find them to be.

The excavator question

It has always been Mr Gauci's position that he was ordered to bring a seven-tonne excavator to the CSL Parkville site. Mr Bull's evidence was that it was to be a five to seven tonne excavator. The seven‑tonne excavator would have been within the range, in any event. Mr Bull was clear about this even though EPH’s records purport to show an order for a 3-4 tonne excavator. Mr Bull’s evidence was given impressively and I accept it as I do his evidence generally, subject to the next paragraph.
Both Mr Bull and Mr Gauci gave evidence that they had shown text messages, to the effect of the evidence for which they contended, to the ABCC. I am unable to decide which of these versions is correct, although I make it plain that I do not think for a moment and do not accept the criticism advanced by the Respondents that Mr Gauci deliberately changed the text message to him. Mr Gauci's evidence was that he was unable to change a text message once it was sent to him, and I accept that.
On any view, the fact is that Mr Gauci was required to be at the CSL Parkville site with a five to seven tonne excavator.
The figures given by Mr Blackmore of Meridian varied in his evidence from one to four tonnes.
Mr Blackmore was a very unimpressive witness. He likewise had given a statement to the ABCC relatively shortly after 12 September 2006, but his evidence was redolent of one seeking to distance himself from that statutory declaration. I found his evidence that he had no recollection of the induction process at the CSL Parkville site to be completely unconvincing.
While I accept that he was only there for a few months and that the events concerned took place several years ago, the admittance or non‑admittance of a non‑union member on this site was plainly a matter of some moment, as indeed Mr Blackmore's first statement to the ABCC suggests. I find the failure of Mr Blackmore to remember the induction process incredible; especially given that he had clearly refreshed his memory recently from the statements he gave to the ABCC when he gave evidence to the Court.
Further, and once again I note that this is a matter of demeanour but one I think it proper for me to take into account – Mr Blackmore's demeanour in the witness box was redolent of evasion. Counsel for the Applicant described Mr Blackmore's conduct as "cagey", but I am afraid I would be less generous than that. Mr Blackmore presented to me as a person determined to give no assistance to the Applicant and to distance himself, wittingly, as far as he could from the statements he had made to the ABCC, which statements were made as statutory declarations and which I accept were true.
I entirely reject the assertions that the reason Mr Gauci was not allowed to start work was that he attended with the wrong size excavator.

Criticism of the Applicant (including a Jones v Dunkel point)

I deal briefly with two matters raised by the Respondents.
The Respondents sought to criticise the conduct of the investigation by the ABCC. Questions were put to Ms Stuart‑Mahoney that would have anticipated submissions that the persons interviewed, such as Mr Galea and Mr Blackmore, were the subject of unfair pressure. I do not accept these criticisms at all. There is nothing in the materials or the evidence given orally that suggested that Ms Stuart‑Mahoney or any of her colleagues acted improperly.
Likewise, I do not uphold the Jones v Dunkel (1959) 101 CLR 298 (“Jones v Dunkel”) submission advanced by the Respondents.

Jones v Dunkel
inferences arise in circumstances where a witness who is otherwise available is not called and the failure to call them cannot be explained. Such a submission was made about Mr Trounson, Mr Tenace and Mr Simmonds.
An explanation that is not in any way excluded here is that those persons might be uncooperative. Further, if they were indeed available to give evidence then either side could have called them.

The facts in relation to Mr Gallagher

Mr Gallagher did not make any statement to the ABCC. The evidence is that he attended the site at about 7.00 am and ended up in the induction process at 7.15 am, together with Mr Galea, Mr Tenace, Mr Trounson and Mr Simmonds.
The evidence is that Mr Gallagher was a member of union at the time but thought he was unfinancial. It turns out that it is more probable than otherwise that he was in fact a financial member of union at the time, but that is not the basis on which the parties proceeded on 12 September 2006. Mr Gallagher, in evidence before me, said he knew the person who conducted the induction was a union delegate; he stated, "You can just tell." Mr Gallagher said that Mr Deans had looked at the forms to make sure everything was correct (P-9). He was asked why he had not filled out his union details (P-11) but was unable to remember (P-12) what Mr Deans said to him. He said:
“I got the impression that he was curious to know did we want to join the union…I can't remember specifically how he asked me the question…but whatever he said I knew - I obviously knew why he wanted me to stay back…Whatever he said, I got the impression that that was why he wanted me to stay back - is to talk about my union membership. So I can't remember exactly what he said.”
Mr Gallagher went on to say (at P-12):
“I told him that I would - I had been away. I had previously been in the CFMEU. I had been away up in Queensland and not working on CFMEU sites, and I had hung up my membership, which means sort of cancelling it for - you know, just stopping it because I'm not on their sites. I had been away for - I told them that I had been away for a number of months working away from their sites, and that I had just come back to Melbourne, rang Direct Skills the day before and they'd given me work straightaway and I didn't have time to organise my membership, but I was prepared to pay my membership that day, there and then.”
Mr Gallagher could not remember whether he in fact paid his membership at that time or whether he paid when the union delegate, who had gone away for a bit, came back.
It seems clear from the evidence as a whole that in fact Mr Gallagher had paid his membership fees by credit card very shortly thereafter at the union office.
It should be noted that Mr Gallagher was paid a full day's pay for 12 September 2006.
The only contradistinction between Mr Gallagher and the three other persons who were released immediately to go on site was that there was some question as to Mr Gallagher paying his union fees.
Nonetheless, the tenor of Mr Gallagher's evidence was that he himself proffered the advice that he was not a financial union member and volunteered to bring himself up to date and become financial instantly, once the possibility of doing so was brought to his attention.
Mr Gallagher, like Mr Galea, denied meeting Mr Gauci after the event, after paying his fees. He, likewise, denied Mr Gauci's assertions that he was annoyed at the time.

The evidence about Mr Galea

Mr Galea's evidence was that he had been out of work for some time when he attended the CSL Parkville site. Like Mr Gallagher, he found himself at about 7.15 am in the induction shed. Mr Gallagher had provided two statutory declarations to the ABCC, both of which strongly supported the ABCC's case.
It is impossible to be wholly charitable to the way in which Mr Galea gave his evidence, although equally it is impossible not to be sympathetic to the conundrum in which I find that he found himself.
Mr Galea's evidence involved an all‑too‑obvious endeavour at one and the same time to resile from and distance himself from and even deny the truthfulness of his statutory declarations while on the other hand maintaining that he had not made a false and misleading declaration by signing them. I permitted counsel for the applicant to cross‑examine Mr Galea, notwithstanding that Mr Galea was his witness, because of inconsistencies between the statutory declarations and his evidence‑in‑chief.
It is noteworthy that, although under that cross‑examination Mr Galea proceeded to agree with a number of propositions put to him by counsel for the Applicant consistent with his earlier statutory declarations, he resiled again from most of it when he was cross‑examined by counsel for the Respondents.
The forensic practice of calling witnesses known to be likely to be uncooperative is obviously a high‑risk one. It is a matter for the ABCC as to how it conducts its cases. But where you get a witness like Mr Galea who will say, unfortunately, pretty much whatever the person cross‑examining him wants to hear, their evidence is in many ways not likely to be helpful. The aspects of the evidence of Mr Galea that I am prepared to accept, because they were given with a measure of conviction absent from the rest of his evidence and also because they make commonsense, are as follows:
a)Mr Galea knew he was not a financial union member when he went to the site, because his arrears were over $1,000.00 and he must have been well aware that he had not paid any money to the union for a long time;
b)as a long‑time union member, he would have been well aware of the periodicity of union dues and the necessity to pay them;
c)Mr Galea was asked to remain and discuss his union dues by Mr Deans - that was the purport of his evidence;
d)Mr Galea had been out of work for some time, and to quote him (P-77) he "needed the work";
e)Mr Galea left the site to go to the union office, and described himself as distraught (P-78);
f)he was at the union office until about 12.00 pm, which was the time he had originally estimated (P-79).
Examples of Mr Galea's desire to ingratiate himself with the Second Respondent and/or to resile from his earlier statement are:
a)At P-65 where he, unresponsively, volunteered that he had been intimidated when making his first statement to the ABCC;
b)At P-65 where he said, in cross‑examination by counsel for the Respondents, that he "felt intimidated by the large gentleman that was there with Ms Stuart and was saying what they wanted to hear virtually" and that he "I’ve got a memory like a sieve";
c)At P-68, he said he felt nervous when interviewed on 29 March 2007, and inferred that this might be interrelated with the presence of the “large gentleman” who had attended in February;
d)At P-71 where he said he was a proud member of the union.
These statements are in part unbelievable. First of all, the second statutory declaration provided by Mr Galea took place when he was interviewed by two women, the large ex‑policeman who had interviewed him the first time not being there.
Second, if - and this is the picture for which the Respondents contend - Mr Galea was a proud union member, so desperate to be up to date in his union fees that he happily disappears from the site for a number of hours, was correct, there is no earthly reason why he would be distraught; rather, he would be happily fulfilling a function that he was keen to do.
The truth is, as I find, that Mr Galea was not financial, that Mr Deans made it plain to him that he would have to sort his financiality out before he was allowed to start and that it took him some three‑or‑so hours to do so, and that this distressed him because he lost money that he badly needed as a result.
Once again, once Mr Galea had completed his induction form, unless there was no pressure whatever for him to become financial, there was no earthly reason why he could not have been given his sticker and allowed to commence work on site, as others had done.
It was put by the Respondents that this conclusion could not properly be arrived at because Mr Deans had given evidence:
a)that he had allowed Mr Simmonds on the site when Mr Simmonds was not a union member; and
b)because Mr Deans had given evidence of allowing another non‑union person, an electrician called Tim (P-172), to work there before.
Mr Simmonds was a plumber and eligible to be a CEPU member. The electrician would presumably also be CEPU eligible. It is by no means clear that allowing either of them to start work would or would not in fact be consistent with a policy of the CFMEU to restrict labour eligible for the CFMEU to work on site.
Furthermore, and in any event, given that I have accepted that Mr Deans had enforced a no ticket no start policy in respect of Mr Gauci, it is more probable than not that he enforced the same outcome in respect of Mr Galea, whose arrears were far greater than those of Mr Gallagher and which were not amenable to the same immediate result.

The effect of the above conclusions of fact upon the outcome of the application

I accept the submissions of the Respondents that s.790 of the Act simply cannot apply where people are in fact already members of the union, in the circumstances at least of this case. What happened to Mr Galea and Mr Gallagher in this regard did not happen because they were not members of the union but because they were unfinancial or perceived to be unfinancial.
It is not necessary for me to decide in the abstract whether s.790 can ever be engaged where a person is as a matter of fact a union member at the time of an alleged contravention. Rather, in this case all the evidence shows that all concerned (by which I mean Mr Galea, Mr Gallagher and Mr Deans) knew and proceeded on the basis that both Mr Gallagher and Mr Galea were members of the union on 12 September 2006.
Nothing was done to Mr Gallagher or Mr Galea that contravenes s.790 of the Act.
In respect to s.797 of the Act, in the particular circumstances I have described, I do not believe that the Respondents contravened in respect of Mr Gallagher.
I am satisfied that the evidence discloses that Mr Gallagher was not prejudiced in his prospective employment by anything that Mr Deans did.
While I accept that requiring, as I think is more probable than not, two people to stay and discuss their union membership and not allowing them immediately to start work is highly likely to indicate a discriminatory approach, the fact is that Mr Gallagher's evidence is that it was he who raised his non‑financiality while they were first interviewed by Mr Deans and that he desired to change it, which he did effectively almost immediately.
As Mr Deans correctly might observe, there are benefits to being in a union. There are also benefits, as the rules of the union which are in evidence before me show, to being a financial member of the union. On the particular facts of this case, I cannot and do not find that the Respondents contravened s.797 of the Act in respect of Mr Gallagher.
With Mr Galea, however, the evidence is all the other way. Mr Galea needed the job and did not work for some three or four hours because he was not a financial member of the union.
I do not accept the picture contended for by the Respondents that this all took place because of Mr Galea's fervent desire to regulate his affairs before starting work.
Mr Galea needed the money. It is entirely unreasonable to suppose he wanted to do anything other than to start work. The fact is he was prevented from doing so because of the actions of Mr Deans, and in the circumstances this conduct, in my view, plainly contravenes s.797 of the Act. He was made to go and sort his financial status out before he was allowed to start work. This is so, irrespective of whose version one accepts of the unfortunately rather numerous versions that are contained both in the statutory declarations of Mr Galea, his oral evidence given in cross‑examination by counsel for the Applicant and in cross‑examination for the Respondents and in Mr Deans' own evidence.
I should interpolate and say here that I accept, as Mr Gauci says, that Mr Galea expressed strong discontent to him at the time. For the reasons given, I am not able to accept Mr Gauci’s evidence about
Mr Gallagher to the same effect.
In view of the factual findings I have made, it is clear that the Respondents have contravened s.789 and s.790 of the Act in respect of Mr Gauci.
Mr Gauci was the subject of coercion in respect of being in the union. It is difficult to think of anything more readily fitting the idea of coercion than being told you cannot work if you are not a member of a union. It is plainly conduct intended to negate choice. The fact that it did not do so speaks for Mr Gauci's fortitude, rather than suggesting that it was not conduct sufficiently significant to constitute coercion.
Similarly, the assertion that Mr Gauci could not start work if he was not a union member was plainly false and misleading. I note that there is no necessity for intent for s.790 of the Act to be engaged. That was the clear majority decision of the Full Federal Court of Australia in Construction, Forestry, Mining and Energy Union (CFMEU) v Hadgkiss [2007] FCAFC 197.
I should note in passing that, while the facts as I have found them may not exactly correlate with the facts as particularised, I am entitled to find the contraventions established on the evidence as it is presented before me (see Hadgkiss v Construction, Forestry, Mining and Energy Union (CFMEU) [2008] FCAFC 22).
It should be further noted that at no time did the CFMEU suggest that the statements made by Mr Deans (if proved, contrary to his denials) were not false and misleading. On one view, what Mr Deans told Mr Gauci was true enough; he would indeed not start work if he was not a union member. The assertion would be misleading only in the sense that it represented a state of affairs that was unlawful.
However, no submission to this effect was advanced by the CFMEU before me. The case was run on the very clear basis that Mr Deans denied the conduct attributed to him. I, however, have found that he did say the things that he denied, and on this footing the contravention under s.790 of the Act is also made out.
It should be noted that I do not accept the submission made by the Applicant that Mr Gauci knew that the union did not run the site. Mr Gauci's actual evidence was that that is not his general impression when he visits sites at all. The fact that Mr Gauci candidly admitted that he knew that the union did not own the site is not consistent with the thrust of his evidence to the effect that Mr Deans did indeed tell him that he ran the union and the site. Mr Gauci was only admitting, as is patent, that the CFMEU was not the owner at law of the site.
For these reasons, there will be declarations that the Respondents have contravened s.789 and s.790 of the Act in relation to Mr Gauci and s.797 of the Act in relation to Mr Galea.
There will be declarations to this effect, and I will hear the parties, as agreed, separately on a date to be fixed in respect to the question of penalty. The other component elements of the application will be dismissed.

I certify that the preceding one hundred and twelve (112) paragraphs are a true copy of the reasons for judgment of Burchardt FM

Associate: Brooke Evans

Date: 4 August 2008