FEDERAL COURT OF AUSTRALIA
Hamberger v Construction Forestry, Mining & Energy Union [2000] FCA 1923
INDUSTRIAL LAW - Freedom of association under Part XA of the Workplace Relations Act 1996 (Cth) - employee declines to join union - conduct by officers of union - seeking removal of employee from site - injury of employee in his or her employment - to alter position of an employee to the employee’s prejudice.
CONSTITUTIONAL LAW - Constitutional validity of s 298B(2) and s 298S of the Workplace Relations Act 1996 (Cth).
WORDS AND PHRASES - “advise, encourage or incite”.
Workplace Relations Act 1996 (Cth)
Employment Advocate v National Union of Workers [2000] FCA 710 Foll
Bennett v Milliner (1959) 1 FLR 312 Cited
Ansett Transport Industries (Operations) Pty Ltd v Australian Federation of Air Pilots [1991] 1 VR 637 Cited
Linehan v Northwest Exports Pty Ltd (1981) 57 FLR 49 Cited
Rowe v Transport Workers’ Union of Australia (1998) 90 FCR 95 Foll
JONATHAN HAMBERGER, THE EMPLOYMENT ADVOCATE v
CONSTRUCTION FORESTRY, MINING AND ENERGY UNION, AUSTRALIAN
BUILDING CONSTRUCTION EMPLOYEES AND BUILDERS’ LABOURERS’
FEDERATION (QUEENSLAND BRANCH) UNION OF EMPLOYEES, JAMIE
McHUGH, MICHAEL RAVBAR AND DARREL KERSEY
Q43 OF 1999
COOPER J
BRISBANE
22 DECEMBER 2000
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IN THE FEDERAL COURT OF AUSTRALIA |
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Q43 OF 1999 |
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BETWEEN: |
JONATHAN HAMBERGER, THE EMPLOYMENT ADVOCATE APPLICANT
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AND: |
CONSTRUCTION FORESTRY, MINING AND ENERGY UNION FIRST RESPONDENT
AUSTRALIAN BUILDING CONSTRUCTION EMPLOYEES AND BUILDERS' LABOURERS' FEDERATION (QUEENSLAND BRANCH) UNION OF EMPLOYEES SECOND RESPONDENT
JAMIE McHUGH THIRD RESPONDENT
MICHAEL RAVBAR FOURTH RESPONDENT
DARREL KERSEY FIFTH RESPONDENT
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DATE OF ORDER: |
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WHERE MADE: |
THE COURT DECLARES THAT:
1. The first, second, third and fourth respondents have engaged in conduct in contravention of s 298P(3) of the Workplace Relations Act 1996 (Cth) on 29 January 1999.
2. The second and third respondents have engaged in conduct in contravention of s 298P(3) of the Workplace Relations Act 199-6 (Cth) on 26 February 1999.
THE COURT ORDERS THAT :
3. The proceedings be dismissed against the fifth respondent.
4. The proceedings be adjourned to a date to be fixed to hear submissions as to any penalty to be imposed against the first, second, third and fourth respondents.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
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IN THE FEDERAL COURT OF AUSTRALIA |
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Q43 OF 1999 |
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JUDGE: |
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DATE: |
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PLACE: |
REASONS FOR JUDGMENT
1 The applicant is the Employment Advocate (“the Advocate”), an office created under s 83BA of the Workplace Relations Act 1996 (Cth) (“the Act”).
2 The first respondent (“the CFMEU”) is an organisation registered under s 191 of the Act.
3 The second respondent (“the BLF”) is an industrial organisation of employees registered under the Industrial Organisations Act 1997 (Qld) (“the State Act”).
4 The third respondent (“McHugh”) is a member of the CFMEU and the BLF and is also an organiser employed by the BLF.
5 The fourth respondent (“Ravbar”) is a member of the CFMEU and is a state organiser for the CFMEU.
6 The fifth respondent (“Kersey”) is a member of the CFMEU and is a state organiser for the CFMEU.
7 Lillicorp No 1 Pty Ltd (“Lillicorp”) was a contractor with McConnell Dowell Constructions (Australia) Pty Ltd (“McConnell Dowell”) to perform formwork, concreting, reinforcing and concrete ancillary works at the Oakey Power Station construction site (“the site”).
8 Candid Hire Pty Ltd (“Candid Hire”) provided labour services to Lillicorp to enable it to perform its work under the contract with McConnell Dowell.
9 Michael Albert Leroy (“Leroy”) was employed by Candid Hire and worked as a foreman in steel fixing at the site.
10 Lillicorp and Candid Hire were companies managed and controlled by Roger David Lilley (“Lilley”).
11 The Advocate alleges that the respondents engaged in conduct in contravention of s 298P(3) of the Act and seeks the imposition of civil penalties under s 298U of the Act. The conduct alleged is that the respondents threatened industrial action against Lillicorp and/or Candid Hire with intent to coerce Lillicorp and/or Candid Hire to remove Leroy from the site because he was not a member of the BLF and/or CFMEU and refused to join the BLF and/or the CFMEU. Such conduct, it is alleged, constitutes a contravention of s 298P(3)(b) of the Act. It is also alleged that the respondents advised, encouraged or incited Lillicorp and/or Candid Hire to remove Leroy from the site for the same reason which it is alleged constitutes a contravention of s 298P(3)(a) of the Act.
12 The standard of proof which the Advocate must satisfy is the civil standard of proof. However, the Court is required by s 140(2) of the Evidence Act 1995 (Cth) to take into account the nature of the cause of action, the nature of the subject matter of the proceeding, and the gravity of the matters alleged in determining whether it is reasonably satisfied that the matter has been proved. In the present case, that requires that a standard of proof above mere satisfaction on the probabilities be satisfied: Employment Advocate v National Union of Workers [2000] FCA 710 at 25 - 29.
13 The conduct pleaded by the Advocate in his statement of claim is alleged to have occurred on 20 and 29 January and 26 February 1999.
14 On 20 January 1999 Kersey and McHugh attended on site. McHugh entered the site as the holder of a permit to enter and inspect premises issued under s 285A of the Act. The permit was issued to McHugh as “... an officer of the Construction, Forestry, Mining and Energy Union Construction & General Division, Queensland Construction Workers’ Divisional Branch”. It entitled McHugh, while the permit remained in force, to exercise the powers and functions given to the holder of the permit by Division 11A of the Part IX of the Act. Notwithstanding his assertions to the contrary, McHugh, when on the site, was acting as an officer of the CFMEU. He was concerned to deal with union coverage on site and to ensure that employees working for Lillicorp were receiving their entitlements, including employer contributions to the Building Union Superannuation Scheme (“BUSS”) and to the Building Employees Redundancy Trust (“BERT”). Occupational Superannuation and Redundancy Scheme contribution entitlements were specifically provided for in the “Oakey Power Station Construction Project Certified Agreement” (“the Site Agreement”) which covered the construction works at the site: see clauses 3.6 and 6.14.
15 Clause 1 of the Site Agreement recorded the parties’ expressed intention to have the Site Agreement certified by the Industrial Relations Commission in accordance with s 170 of the Act. The employee organisations which were party to the Site Agreement included the CFMEU and the Australian Workers Union (“the AWU”). The BLF was not a party to the agreement.
16 Clause 6.9 of the Site Agreement provided :
“6.9 Union Representation
Within the parameters established at law, the parties undertake to encourage and facilitate all employees covered by this Agreement to become and remain financial members of the relevant union party to this Agreement.”
17 Membership of the BLF, I find, carried with it membership of what McHugh described as the “Builders Labourers’ Division of the CFMEU” which was the “Construction & General Division Queensland Construction Workers’ Divisional Branch” of which McHugh is an officer and for which he holds the permit to enter issued under the Act.
18 There was a meeting on the site in the morning of 20 January 1999 between Kersey, McHugh, Lilley and Gary Parkinson (“Parkinson”), the project manager employed by McConnell Dowell. That meeting took place in the McConnell Dowell site office used by Parkinson. Lilley knew Kersey from previous dealings extending back at least ten years. He did not know McHugh who was introduced to him. At the time of the meeting there was a demarcation dispute between the AWU and the CFMEU as to coverage of the works.
19 Lilley deposed that the following conversation occurred :
“Kersey said: ‘Roger we need these boys to be members.’
McHugh said: ‘We can do this the easy way or the hard way.’
I said: ‘What do you mean by that?’
McHugh said: ‘Make sure all of your men are financial, by paying us and you take it out of their pay.,’
I said: ‘As far as I am concerned the boys can be members of the AWU if they want.’
Kersey said: ‘No, CFMEU and BLF have the run of this site.’
McHugh said: ‘If you paid us it would save the problems of us being on site more and there would be no hassles on your other projects. Roger it’s called a business decision.
I said: ‘I can not pay for my men and I refuse to. It’s their decision.’
Gary said: ‘Let’s have the meeting in Seimens office to discuss who looks after this site.’ ”
20 Kersey disputes this version of what occurred. However McHugh corroborates it in its essential parts. McHugh says that Kersey did say words to the effect :
“Roger, these boys are to be members of our union because we are the relevant union on site under the agreement.”
McHugh admits that he said words to the effect :
“We can do this the easy way or the hard way.”
And that Lilley responded :
“What do you mean by that?”
McHugh deposes that he then said words to the effect :
“We would like all your men to be made members of the relevant building trade groups of unions. Just make sure all your men are financial by paying us and then you take it out of their pay.”
McHugh confirms that Lilley said that his employees could be members of the AWU if they wanted to, to which Kersey replied words to the effect :
“No the CFMEU and the BLF have the coverage of this site.”
And
“The CFMEU and the BLF are the preferred unions on this site.”
McHugh admits that he used the phrase “It’s called a commercial decision” but not in the way deposed to by Lilley. I accept the evidence of Lilley as to the content of this conversation and also that McHugh used the words :
“If you paid us it would save the problems of us being on site more and there would be no hassles on your other projects. Roger it’s called a business decision.”
21 Having seen McHugh in the witness box, having heard the evidence of the others who attended at this and subsequent meetings with McHugh and having regard to his affidavit which he swore he prepared himself, I have no doubt that he would threaten to cause “hassles on your other projects” if he thought that was necessary to get his way on an issue.
22 There was a further meeting on 20 January 1999 to deal with the demarcation issue. That meeting took place in the Siemens Ltd site office. Siemens Ltd was the head contractor on the Oakey Power Station Project. McHugh, in his affidavit, deposed as follows :
“15. During the meeting which lasted, at the most, one hour I did lose my cool at one point in time. I believed that Lilley was deliberately trying to get under our skins by playing an innocent line by suggesting that no one had told him at this point in time that the site agreement, and the agreement with the developer, was that the CFMEU and the BLF were to have coverage. He seemed to be suggesting that everything he had done was done correctly. I was confident that Lilley knew that the CFMEU and the BLF were the preferred unions for the site and that he was really being obstructionist by not agreeing to transfer the workers from the AWU to the CFMEU and the BLF.
16. The relevant exchange where I did lose my cool is as follows : I said to Lilley words to the effect :
‘Roger, an hour ago you had told me that you had paid the union fees for your men to join the AWU and now you are refusing to allow them to join the BLF or the CFMEU”.
Lilley then said words to the effect :
‘It is entirely up to the men’.
I then said words to the effect :
‘You are nothing but a fucking arsehole’.
I further said words to the effect:
‘You fucking wait, we will take this to other sites of yours. You’ve told me that you’ve paid for the fucking men’s fees before. You’ve set a precedent and now you have just got to keep going with it. You have set the fucking rules, now don’t be a cunt and follow through with it.’
When I said to Lilley words to the effect that we would take this to other sites of his, I intended to demonstrate to him that I was dissatisfied with his failure to join the men in the appropriate unions, and his failure to pay BUSS and BERT entitlements. What I was intending to suggest to him was that if he did not co-operate with us then I would let the men on other sites know that he had joined his men as members of the wrong union, and further that he was not paying the entitlements which his men were entitled to. Warren said words to the effect :
‘That is illegal’.
I then said words to the effect:
‘I know the fucking law, that’s my job’.
Warren then said words to the effect:
‘You are bordering on harassment, just settle down’.
I said to Warren words to the effect:
‘You just sit there and shut your fucking mouth. You’re a dill, you don’t know what you are talking about’.”
23 In addition to the words McHugh admits to using, Lilley deposes that he also stated “To prevent any hassles pay the fees, it’s a business decision Roger”.
24 I am satisfied that Kersey and McHugh made the statements to Lilley which he deposes were made at the two meetings on 20 January 1999. I am satisfied that the statements were made in an attempt to persuade Lilley to pay the union fees of all employees of Candid Hire to be used by Lillicorp in performing construction work under its contract on site.
25 On 29 January 1999, McHugh, Kersey and Ravbar were present on site. McHugh says the purpose of the visit was “to speak with workers about membership matters”. Again McHugh entered the site using his permit to enter which he held as an official of the CFMEU. He spoke with Leroy and told him that he owed the BLF $985 in outstanding membership fees. Leroy said words to the effect “I’m not joining your Union and you can talk to my solicitor.”
26 There is substantial agreement between McHugh and Leroy as to what occurred between them. I accept Leroy as an honest witness and I accept his evidence that the following conversation occurred between him and McHugh :
“McHugh said words to the effect: ‘We are not after the money all we are after is for you to get back in the union.’
I said words to the effect: ‘Look I have already told you this is against my principles and you won’t get me to join the union.’
McHugh said words to the effect: ‘Well I have to go and see Roger to get him to remove you from the site’.
I said words to the effect: ‘Well go ahead matey see if I care’.”
27 McHugh deposed he stated words to the effect :
“‘Look mate, whether you like it or not, you are a member of ours and its on the computer’.
He said words to the effect:
‘Show me where’.
I said words to the effect:
‘I can’t show you right now for fucks sake, but I am telling you it is there.”
He said words to the effect:
‘Well I want to see some proof.’
I said words to the effect:
‘We would have a card in the office in Brisbane which you would have signed’.
He said words to the effect:
‘Well show it to me’.
I said words to the effect:
‘I will get the fucking card and show it to you’.
He said words to the effect:
‘Good, get the card and I will give it to my Solicitor.’
He then said words to the effect:
‘Fuck your Union. You are nothing but a pack of communists, and I don’t believe in your Union. I left my country to get away from you bastards.’
I said words to the effect:
‘I don’t give a fuck what your thoughts of us are. You don’t mind reaping the wages and conditions we negotiate to have provided on site.’
I then pointed to the sticker on my helmet which said ‘Scab’. I said words to the effect :
‘The people who accept and receive benefits and conditions we provide are known to us as scabs.’
He said words to the effect:
‘I am not paying any money. It is against my principles.’
I said words to the effect:
‘Look mate, I am not asking you to pay the full amount. I am asking you to pay $220.00 and I will talk to my office to see if I can get the rest of the debt cleared because we do have the right to pursue two terms from you.’”
28 In cross-examination, Leroy agreed that McHugh had made such a statement but he would not agree that the further statement about getting Leroy back in the union was not made. Further, it was not suggested to Leroy that McHugh did not use the words “Well I have to go and see Roger to get him to remove you from the site.” The fact that McHugh admits that he then sought the removal of Leroy from the site by Lilley persuades me that the evidence of Leroy is correct and should be accepted.
29 Subsequent to the exchange between McHugh and Leroy, there was a meeting held in the McConnell Dowell site office. Ravbar, McHugh and Kersey were present at that meeting, as was Parkinson and Lilley. There were also other staff of McConnell Dowell, including an engineer Mr Dimitrios Papadimitriou, in the site office.
30 I am satisfied that there were separate discussions being had at the meeting and that Lilley, at the commencement of the meeting, was talking to Ravbar and that McHugh was some metres away to the side of Lilley. Lilley gave evidence, which I accept, that because of McHugh’s behaviour and aggressive attitude, he would not speak to McHugh. Further, McHugh in his statement gives evidence of involving himself in a conversation Lilley was having when he heard Lilley make reference to Leroy not wanting to pay outstanding monies and that Lilley was not going to pay for him.
31 Lilley gave the following evidence of his conversation with Ravbar in the site office :
“12. At that point the four of us went to the McConnell Dowell office. Gary Parkinson and Jim, one of the engineers, were there when the following exchange occurred:
Ravbar said: ‘We want Leroy removed from the site.’
I said: ‘Why?’
Ravbar said: ‘Because he doesn’t want to join the union.’
I said: ‘I was of the understanding that it was not compulsory for the men to join the union.’
Ravbar said: ‘It is if they want to work on this site.’
I said: ‘Are you asking me to sack Leroy?’
Ravbar said: ‘I can’t say that, that’s up to you but transfer him to another site.’
I said: ‘The work that I had elsewhere is winding down and Leroy is my main steel fixing foreman and I need him to run this job.’
Ravbar started laughing and said “It all comes down to a business decision Roger.’
McHugh said: ‘We can cause other hassles on your other sites.’
I said: ‘I refuse to talk to you anymore because of your abusive manner.’”
32 Parkinson gave the following evidence of his recollection of the conversation :
“11. ...
Ravbar said words to the effect: ‘We have spoken to the guys and they have all joined up except one.’
McHugh said words to the effect: ‘The one that wouldn’t join should be removed from the site.’
Lilley said words to the effect: ‘He is one of my long term employees and I don’t have a site to send him to.’
McHugh said words to the effect: We want him removed from the site.’
Lilley said words to the effect: ‘I was of the understanding that it is not compulsory for the men to the [sic] join the union.’
McHugh said words to the effect: ‘It is if they want to work on this site.’
Lilley said words to the effect: ‘Are you asking me to sack him?’
Ravbar said words to the effect: ‘I can’t say that, that’s up to you but you could relocate him to another site.’
Lilley said words to the effect: ‘The work that I had elsewhere is finishing up and he is my main steel fixing foreman and I need him to run this job. The only job I have coming up is another building job.’
McHugh started laughing and said words to the effect: ‘It is silly to have all these problems on a project like this for one bloke just because he won’t join the union. Just pay for him. It all comes down to a business decision.’
McHugh also said words to the effect: ‘We will be back in a couple of weeks and we will expect everyone in the union and in the BUSS scheme.’”
33 The respondents submit that I should accept the evidence of Parkinson in preference to that of Lilley because it generally accords with the evidence of McHugh. He said :
“25. ... I heard Lilley make reference to Leroy not wanting to pay outstanding monies and that Lilley was not going to pay for him. At that point I did say words to the effect :
‘Well he owes us the money and we want the money. If he does not want to pay, then remove him from the job and put him on another job where there is no site agreement.’
Lilley then said words to the effect:
‘It is not compulsory for the men to join the union’.
I then said words to the effect:
‘That is correct. It is not compulsory for men to join the union but if someone who is in the union and owes us money, we are entitled to pursue that person for the money.’
Ravbar then said words to the effect that it was not compulsory for the workers to be members of a union, but that if they wanted to work on this site, because of the terms of the agreement that had been entered into in respect to the award and the rates, there was a preference provided to members of the CFMEU and to the BLF and the other Unions that were parties to the agreement. Lilley did then make reference to Leroy being his main steel fixing foreman and needing him to run the job.
I said words to the effect:
‘We want the money that Leroy owes us. Or send him to another site where there is no site agreement or I will take it to other jobs.’
.....
Lilley did say words to the effect:
‘I refuse to talk to you any more because of your abusive manner.’”
34 Ravbar denies saying “We want Leroy removed from the site”. His recollection is that there was no mention of anyone wanting to remove Leroy from the site during the course of the meeting. He said :
“11. I recollect that there was a conversation between Lilley, Kersey, McHugh, Parkinson and me concerning whether or not it was compulsory for men to join the union. During this conversation I did become upset at the manner and use of words by Lilley. I told him that he was the one instrumental in getting workers joined to the AWU. Further I said words to the effect that it was not compulsory for workers to be a member of a union if they want to work on the site but because of the agreement that had been structured in respect to the award and the rates of pay there was a preference provided to members of the CFMEU and to Union members. I informed him that, in my opinion, it appeared that he had gone out of his way to get his workers membership of a Union but it was the incorrect Union so therefore he was merely being unhelpful and was wasting everyone’s time and resources.”
35 Kersey said of the meeting on 29 January 1999 :
“22. I do recall that conversations took place regarding an employee on the site called Michael Leroy., I do not recall Ravbar saying that Leroy was to be removed from the site. I do recall Lilley saying words to the effect:
‘It is not compulsory for the men to be in the Union’.
I do not recall Ravbar saying words to the effect:
‘It is if they want to work on the site’.
There was no mention at that meeting of anyone wanting to sack Leroy. There was no question whatever of getting Leroy to join the BLF. He was already a union member and I was aware he did have some outstanding dues that had to be paid and that was the basis on which the BLF wanted the monies to be paid to them.”
36 Mr Papadimitriou gave evidence of his recollection of the meeting. He was not part of the conversation, but was present in the site office performing his duties as an employee of McConnell Dowell. He said :
“2. On 29 January 1999, I was performing my duties in the McConnell Dowell site office when I saw Roger Lilley of Lillicorp, Jamie McHugh of the BLF and Darrel Kersey and Michael Ravbar of the CFMEU enter the site office.
3. A conversation then ensued between those four persons. I was approximately three metres away from the participants in that conversation. I heard parts of the conversation but I cannot recall the contents of the conversation except as follows.
4. At one point I heard some [sic] say ‘We want Leroy removed from the site’. I cannot recall the answer to this comment.
5. I also heard someone say ‘Why don’t you put him on one of your other sites’. I heard Lilley reply ‘I have nowhere to put him at the moment.’
6. I then heard someone say ‘It comes down to a commercial decision.’”
37 Mr Papadimitriou was unable to say who spoke the words in paragraphs 4, 5 (save the words spoken by Lilley) and 6, other than to say the words were not spoken by Parkinson or Lilley. I accept the evidence of Mr Papadimitriou.
38 I accept the evidence of Lilley as to the conversation he had with Ravbar. It was a conversation in which he was directly involved and affected him directly. I reject Ravbar’s denials; the issue of the removal of Leroy from the site was the subject of discussion at the meeting. The words “We want Leroy removed from the site” attributed by Lilley to Ravbar are corroborated in that form by Mr Papadimitriou.
39 The statement attributed by Parkinson to McHugh was, I am satisfied, made by McHugh, intruding himself into the conversation between Lilley and Ravbar.
40 I am satisfied that the statement of Lilley “I was of the understanding that it is not compulsory for the men to join the union”, which all agree he said, was made in response to the statement by Ravbar that Leroy was to be moved “Because he doesn’t want to join the union.” Parkinson’s recollection is, in my view, incomplete and does not record the full context. Words which he ascribes to McHugh are, by the evidence of McHugh and Lilley, the words of Ravbar. The subject of union membership and work on the site was raised by Ravbar. He admits that he raised it in a context when he was “upset at the manner and use of words by Lilley”. However, I do not accept that he merely stated that there was an agreement which gave preference to members of the CFMEU. McHugh in his recollection of Ravbar’s statement, made work on the site conditional on union membership in the CFMEU and the BLF because the site agreement provided for a preference to the unions which were party to the site agreement.
41 Although Parkinson ascribes the words “It is if they want to work on this site” to McHugh, I am satisfied that he is mistaken and that the words were said by Ravbar. McHugh says that he responded to the question from Lilley as to union membership not being compulsory before Ravbar answered, and it is probable that Parkinson in his own mind has associated McHugh’s intervention with the statement he heard. The response is the same as that sworn to by Lilley.
42 I am satisfied that Lilley said “Are you asking me to sack him?” and that Ravbar replied with words to the effect “I can’t say that, that’s up to you but transfer him to another site.” I am also satisfied that McHugh and Ravbar made the additional comments which Lilley records in his affidavit. It is also likely in my view that McHugh made the additional statements at the end of the conversation which Parkinson gave in his evidence. As I said earlier, I am satisfied that the conversations were fragmented and that McHugh attempted to intrude into the conversation between Lilley and Ravbar and that in consequence, some of the comments recollected by Parkinson do not comfortably or logically form part of the dialogue. Nevertheless, I am satisfied that they were made.
43 On 26 February 1999, McHugh and Kersey were again on the site. There was a confrontation between McHugh and Leroy which I find was instigated by McHugh. I accept the evidence of Leroy and Parkinson as to what occurred as both are in substantial agreement. The evidence of McHugh is to like effect. McHugh, I find, was surprised to find Leroy on site and stated that Leroy should not be on the site, should not be working on the site, and should have been thrown off the site.
44 A short time after the confrontation, McHugh went to the site office of McConnell Dowell and sought inspection of the induction form relating to Leroy. When the card could not be found, McHugh alleged that Leroy had not done an induction course and stated that in consequence, Leroy must be removed from the site.
45 When an induction card was ultimately found, McHugh compared the signature of Leroy on that document with the signature on a union application form dated 1995. He then told Parkinson that Leroy owed the union over $1,000 and that McConnell Dowell could legally remove Leroy from the site.
46 As a result of a telephone call from Parkinson, Lilley arrived on the site. I accept Lilley’s version of what then occurred as set out in his affidavit :
“Kersey said: ‘Hi, Roger’.
I said: ‘What’s the idea of you guys coming on site, abusing my men and disrupting my site?’
McHugh said: ‘He’s a fucken scab, he owes us a thousand dollars from back dues. We’ll get our money one way or the other.’
I said: ‘I’ve had enough of this abuse, you’re the most [arrogant] person I’ve met, every time you have been on site you have abused me or one of my workers. I’ve had enough.’
McHugh said: ‘I don’t give a fuck about you, how many jobs do you have in Brisbane.’ He then pulled a pager from his pocket and said; ‘Within two minutes I’ll notify all the delegates to target all your sites.’
I said: ‘And what are you going to do?’
McHugh said: ‘We can stop all the work if we have to.’”
47 The version of the conversation recalled by Parkinson is to similar effect and is as follows :
“Lilley said words to the effect: ‘Why are you harassing my men?’
McHugh said words to the effect: ‘Because he owes the union money and he shouldn’t be on site.’
Lilley said words to the effect: ‘I have just about had enough of the unions victimising my company and my men.’
McHugh said words to the effect: ‘I hear you have got a job down in Brisbane all I have to do is put your name on this pager and I can send it around to all the organisers in Brisbane so that they watch out for you.’ He then pulled the pager from his pocket. The conversation ended soon thereafter.”
48 I do not accept McHugh’s assertions that he did not suggest to Lilley that Leroy should be put off the site. The focus of McHugh on 26 February 1999, so far as Leroy was concerned, was to procure his removal from the site. I accept the evidence of Parkinson that McHugh stated to Lilley in response to the question as to the reason for the harassment included the statement that Leroy should not be on site.
49 The alleged contravention pleaded against the respondents is that the conduct on 20 January 1999, 29 January 1999 and 26 February 1999 constituted a threat of industrial action within the meaning of s 298B(1) of the Act. Section 298B(1) of the Act provides :
“298B(1) In this Part, unless the contrary intention appears:
industrial action means:
(a) the performance of work in a manner different from that in which it is customarily performed, or the adoption of a practice in relation to work, the result of which is a restriction or limitation on, or a delay in, the performance of the work, where:
(i) the terms and conditions of the work are prescribed, wholly or partly, by an industrial instrument or an order of an industrial body; or
(ii) the work is performed, or the practice is adopted, in connection with an industrial dispute; or
(b) a ban, limitation or restriction on the performance of work, or acceptance of or offering for work, in accordance with the terms and conditions prescribed by an industrial instrument or by an order of an industrial body; or
(c) a ban, limitation or restriction on the performance of work, or on acceptance of or offering for work, that is adopted in connection with an industrial dispute; or
(d) a failure or refusal by persons to attend for work or a failure or refusal to perform any work at all by persons who attend for work;
but does not include:
(e) action by employees that is authorised or agreed to by the employer of the employees; or
(f) action by an employer that is authorised or agreed to by or on behalf of employees of the employer; or
(g) action by an employee if:
(i) the action was based on a reasonable concern by the employee about an imminent risk to his or her health or safety; and
(ii) the employee did not unreasonably fail to comply with a direction of his or her employer to perform other available work, whether at the same or another workplace, that was safe and appropriate for the employee to perform.”
50 It is then alleged that the conduct constituted a contravention of s 298P(3)(a) and (b) of the Act. Section 298P(3) provides :
“298P(3) An industrial association, or an officer or member of an industrial association, must not:
(a) advise, encourage or incite an employer, or
(b) organise or take, or threaten to organise or take, industrial action against an employer with intent to coerce the employer;
to take action in relation to a person that would, if taken, contravene section 298K.”
51 Section 298K(1) of the Act provides :
“298K(1) An employer must not, for a prohibited reason, or for reasons that include a prohibited reason, do or threaten to do any of the following:
(a) dismiss an employee;
(b) injure an employee in his or her employment;
(c) alter the position of an employee to the employee’s prejudice;
(d) refuse to employ another person;
(e) discriminate against another person in the terms or conditions on which the employer offers to employ the other person.”
52 The prohibited reason alleged is that contained in s 298L(1)(b), namely a refusal or failure of Leroy to join an industrial association. In the present case the industrial association is the CFMEU and/or the BLF.
53 For the purposes of the contraventions alleged, the threat of industrial action must be taken to coerce Candid Hire as employer to take action against Leroy to dismiss him or injure him in his employment or alter the position of Leroy to his prejudice because of the refusal or failure of Leroy to join the CFMEU and/or the BLF.
54 The meeting on 20 January 1999 was not for the purpose of attempting to coerce Candid Hire or Lillicorp to take any action against Leroy. To the extent McHugh referred to “hassles on your other projects” and “we will take this to other sites of yours”, I find he was threatening to take industrial action within the meaning of paragraphs (c) or (d) of the definition of “industrial action” in s 298B(1). However, that threat was made to attempt to coerce Lillicorp to pay the union membership fees of those employees, who would be working on site, as members of the CFMEU and/or BLF. That conduct does not give rise to the contravention alleged.
55 I turn now to the conduct which occurred on 29 January 1999.
56 In the context of s 298P(3)(a) of the Act, the phrase “advise, encourage or incite” involves a communication from an industrial association or from an officer or member of such an association which counsels, intimates to, urges, spurs on or stirs up an employer to take action which if taken would contravene s 298K of the Act: Bennett v Milliner (1959) 1 FLR 312 at 322; Ansett Transport Industries (Operations) Pty Ltd v Australian Federation of Air Pilots [1991] 1 VR 637 at 670.
57 I am satisfied that the conduct of Ravbar and McHugh on 29 January 1999 was intended by them to encourage or incite Lilley, as the person controlling the affairs of the employer of Leroy, to take action to have Leroy removed from the site because he was not, and refused to become, a financial member of either the CFMEU or the BLF.
58 I do not accept that the sole reason for the conduct of Ravbar and McHugh on 29 January 1999 was to recover outstanding membership dues. The statement to Leroy by McHugh that he was “not after the money all we are after is for you to get back in the union” is totally against such a conclusion. Also the $220 sought was made up of an entrance fee of $50 and $170 subscription for the first six months membership. That is, the amount being sought from Leroy was the equivalent of the cost to a new member upon signing up for membership of the BLF.
59 On 29 January 1999 Ravbar and McHugh were of the view that to work on this site required that the employees used by Lillicorp be members of the requisite trade union; in this case members of the CFMEU or the BLF. Because Leroy refused to join both, Ravbar and McHugh sought to procure his removal from the site by encouraging or inciting Lilley to cause Leroy’s employer to take that course. Notwithstanding that Lilley advised that he could not employ Leroy off site because he did not have work for him to do, Ravbar and McHugh persisted in seeking his removal.
60 On 29 January 1999 Leroy was working on the site. He had the ability to earn income and to be paid and receive all his benefits and entitlements under the Site Agreement. To refuse to allow Leroy to work on the site would have deprived him of the opportunity to earn income and denied him the benefits and entitlements which he enjoyed under the Site Agreement. Such deprivation would be to injure an employee in his employment and to alter the position of an employee to the employee’s prejudice: Linehan v Northwest Exports Pty Ltd (1981) 57 FLR 49 at 62.
61 At the time that Ravbar and McHugh engaged in the conduct on 29 January 1999, each was an officer of an industrial association and their conduct constituted a contravention by each of them of s 298P(3)(a) of the Act. Although present on 29 January 1999, there was no conduct on the part of Kersey which constituted a contravention. At best, it can be said he did not demur from the conduct of the other two. However, the case of the Advocate was not advanced on the basis that he thereby contravened. The case against Kersey relied upon his conduct on 20 January 1999.
62 It was submitted that McHugh was on site acting in the interests of the BLF as a State organisation alone and had no interest in, and was not acting as, an officer of the CFMEU when on the site. I do not accept this submission. McHugh, I find, knew that the employment conditions on the site were governed by what was to be a federal certified agreement. The BLF, as a State registered organisation, was not a party to that agreement. The interest of the BLF in respect of the site agreement was in its capacity as the “Builders Labourers’ Division of the CFMEU”. McHugh was an officer of the federal organisation of the CFMEU by virtue of being an officer of the CFMEU Queensland Construction Workers’ Divisional Branch. It was in this capacity that he entered the site and it was in this capacity which he acted when on site. The interests of the BLF on site were the same interests as those of the Queensland Construction Workers’ Divisional Branch of the CFMEU, and it was in respect of those interests that McHugh was acting. Whether or not McHugh was also attempting to recover past dues for the BLF is irrelevant if one of the reasons for his conduct is a proscribed reason.
63 It was submitted that Ravbar was not acting on behalf of the CFMEU because it had no interest in Leroy as a member of the BLF, a State organisation. I do not agree, Ravbar was intent on having the work to be performed by Lillicorp being treated as CFMEU and not AWU work. He was also intent on ensuring that all employees used by Lillicorp were members of the CFMEU. That was achieved by having the non-trade occupations signed up as members of the BLF and through that organisation enrolled as members of the Queensland Construction Workers’ Divisional Branch of the CFMEU.
64 I find that on 29 January 1999, McHugh was an officer of both the CFMEU and the BLF and acting in that capacity when engaging in the conduct I have found occurred on site on that day. Ravbar was, I find, an officer of the CFMEU and acting in that capacity when engaging in the conduct I have found occurred on site on 29 January 1999. The consequence of these findings is that by the application of the ordinary rules of agency, the conduct of the officers became conduct for which the CFMEU, and the BLF in respect of McHugh, became liable for: see Rowe v Transport Workers’ Union of Australia (1998) 90 FCR 95 at 115. Additionally, s 298B(2)(b) operates so that the actions of Ravbar and McHugh become the actions of their respective industrial associations. The respondents submit that s 298B(2) and (3) and s 298D of the Act are invalid as being beyond the constitutional power of the Commonwealth. The submissions advanced in support of such a contention were the same as those advanced in Rowe. I have considered my reasons for rejecting the submissions in Rowe. I see no reason to alter my previous conclusion on the issue.
65 The conduct of McHugh on 26 February 1999 was with the intention of having Leroy removed from the site. The words “how many jobs do you have in Brisbane”, the statement “Within two minutes I’ll notify all the delegates to target all your sites” and the statement “We can stop all the work if we have to”, in conjunction with producing a pager from his pocket, constituted a threat to take industrial action as defined in s 298(B)(1) of the Act. The conduct was intended to encourage or incite Lilley, and through him Candid Hire as the employer of Leroy, to remove Leroy from the site because Leroy refused to become a member of an industrial association and thereby to injure Leroy in his employment or to alter the position of Leroy to his prejudice. I do not accept the submission that McHugh acted the way that he did on 26 February 1999 because he wished to recover outstanding fees due to the BLF. As he said in his cross-examination, be believed Leroy was a “scab” taking the benefits of the site agreement negotiated by the unions without joining up as a member. As he recognised in his evidence, driving Leroy off the site was not going to assist in recovering outstanding dues to the BLF.
66 The conduct of McHugh on 26 February 1999 was, I find, conduct engaged in, in his capacity as an officer of both the CFMEU and the BLF, and by the operation of s 298B(2) his actions became the actions of the CFMEU and the BLF. He was, on 26 February 1999, continuing to act in the same capacity and for the purposes as he was on 29 January 1999 and was continuing to act in furtherance of those purposes.
67 The conduct of McHugh and through him that of the CFMEU and the BLF on 26 February 1999 constituted a contravention of s 298P(3)(a) and (b) of the Act.
68 In the circumstances, I make the following declarations and orders :
1. Declare that the first, second, third and fourth respondents have engaged in conduct in contravention of s 298P(3) of the Workplace Relations Act 1996 (Cth) on 29 January 1999.
2. Declare that the second and third respondents have engaged in conduct in contravention of s 298P(3) of the Workplace Relations Act 1966 (Cth) on 26 February 1999.
3. Order that the proceedings be dismissed against the fifth respondent.
69 I will hear the parties on a date to be fixed on the question of pecuniary penalties.
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I certify that the preceding sixty-nine (69) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cooper. |
Associate:
Dated: 22 December 2000
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Counsel for the Applicant: |
G Martin QC with J Murdoch |
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Solicitor for the Applicant: |
Australian Government Solicitor |
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Counsel for the First, Second, Third, Fourth and Fifth Respondents |
J Douglas QC with R Treston |
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Solicitors for the First, Second, Third, Fourth and Fifth Respondents |
Quinlan Miller & Treston |
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Date of Hearing: |
2 and 3 September 1999 |
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Date of Judgment: |
22 December 2000 |
