FEDERAL COURT OF AUSTRALIA

 

Hadgkiss v Blevin [2004] FCA 697

INDUSTRIAL LAW – employment of non-trade union member in building industry – requirement by trade union officer of employer that employee become a member of the trade union for that industry – threat of ‘trouble’ if employee did not do so – conduct constituting advice encouragement or incitement of employer or threat to organise industrial action with intent to coerce employer to dismiss or injure employee – employee absent from work in reaction to threat – thereafter employee returned to work and simultaneously joined the Union – finding of statutory breach – penalty to be assessed – compensation to dissenting employee to be assessed

Workplace Relations Act 1996 (Cth) ss 3(f), 298A, 298B(1) and (2), 298K(1), 298L(1), 298P(3), 298T(1) and (2)(d), 298U, 298V and 298X

Rowe v Transport Workers’ Union (1998) 90 FCR 95

The Employment Advocate v National Union Of Workers (2000) 100 FCR 454

Employment Advocate v Williamson (2001) 111 FCR 20

Hadgkiss v Blevin & Ors [2003] FCA 1167

Minister for Natural Resources v NSW Aboriginal Land Council (1987) 9 NSWLR 154

McLean Brothers & Rigg Ltd v Grice (1906) 4 CLR 835

Refrigerated Express Lines (A’asia) Pty Ltd v Australian Meat and Livestock Corporation (1979) 42 FLR 204

Australian Competition and Consumer Commission v FFE Building Services Ltd [2003] FCAFC 132

Reid v Howard (1975) 184 CLR 1

Alfred v Walter Construction Group Ltd [2003] FCA 993

Maritime Union of Australia v Geraldton Port Authority (1999) 93 FCR 34

Watson v Foxman (2000) 49 NSWLR 315

Australian Municipal, Administrative, Clerical & Services Union v Ansett Australia Ltd [2000] FCA 441

Davids Distribution Pty Ltd v National Union of Workers (1999) 91 FCR 463

Greater Dandenong City Council v Australian Municipal, Clerical and Services Union (2001) 184 ALR 1

Construction, Forestry, Mining and Energy Union v Coal and Allied Operations Pty Ltd [1999] FCA 1531

C Jessup QC, ‘The Onus of Proof in Proceedings under Part XA of the Workplace Relations Act 1996, Australian Journal of Labour Law, Vol 15, 2002 pp 198-208

 

NIGEL HADGKISS AS DELEGATE OF THE EMPLOYMENT ADVOCATE v ALAN BLEVIN, JOSEPH McGAHAN AND CONSTRUCTION FORESTRY MINING AND ENERGY UNION

 

N 414 OF 2003

 

CONTI J

1 JUNE 2004

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 414 OF 2003

 

BETWEEN:	NIGEL HADGKISS AS DELEGATE OF THE EMPLOYMENT ADVOCATE APPLICANT
AND:	ALAN BLEVIN FIRST RESPONDENT   JOSEPH McGAHAN SECOND RESPONDENT   CONSTRUCTION FORESTRY MINING AND ENERGY UNION THIRD RESPONDENT
JUDGE:	CONTI J
DATE OF ORDER:	31 MAY 2004
WHERE MADE:	SYDNEY

 

 

THE COURT ORDERS THAT:

 

1.         The proceedings be stood over for further hearing to determine the amount of the penalty to be awarded against the respondents for contravention of s 298P(3) of the Workplace Relations Act 1996 (Cth), and the amount of compensation to be payable to Conrado de los Reyes pursuant to s 298U(c) of the Act, and in either case, by whom.

2.         The respective parties provide written submissions to the Court within 14 days in relation to the assessment of penalty and compensation, and by whom the same should be paid.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 414 OF 2003

 

BETWEEN:	NIGEL HADGKISS AS DELEGATE OF THE EMPLOYMENT ADVOCATE APPLICANT
AND:	ALAN BLEVIN FIRST RESPONDENT   JOSEPH McGAHAN SECOND RESPONDENT   CONSTRUCTION FORESTRY MINING AND ENERGY UNION THIRD RESPONDENT

 

JUDGE:	CONTI J
DATE:	1 JUNE 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

Outline of relevant provisions of the Workplace Relations Act and Part XA in particular

1                     By instrument in writing bearing date 23 January 2003, the Employment Advocate under the Workplace Relations Act 1996 (Cth) (‘the Act’), being Jonathan Marc Hamberger, delegated to the person occupying the position of Head of the Interim Taskforce into the Building and Construction Industry in the Department of Employment and Workplace Relations, and any person acting in that position from time to time appointed or employed by the Commonwealth, the power to make an application in respect of conduct in contravention of Part XA (headed Freedom of Association) of the Act, pursuant to s 298T(2)(d) thereof (infra).  That instrument did not specify the name of any person to occupy the abovementioned position. 

2                     The applicant (‘Mr Hadgkiss’) asserts that he has occupied and acted in the position of Head of the Interim Taskforce at all material times, being a person so appointed and employed by the Commonwealth.  It was conceded by the respondents that if Mr Hadgkiss had been validly appointed to that office, he was authorised by law to bring the present application.  Whether he was so validly appointed, being a matter put in issue by the respondents, is later discussed and resolved in favour of Mr Hadgkiss. 

3                     The objects of Part XA of the Act are described in s 298A of Division 1 thereof as follows:

‘As well as the objects set out in section 3, this Part has these objects:

(a)       to ensure that employers, employees and independent contractors are free to join industrial associations of their choice or not to join industrial associations; and

(b)       to ensure that employers, employees and independent contractors are not discriminated against or victimised because they are, or are not, members or officers of industrial associations.

Section 3(f) of Part I of the Act includes as a principal object one of ‘ensuring freedom of association, including the rights of employees and employers to join an organisation or association of their choice, and not to join an organisation or association…’.  It is not in dispute that the third respondent is an industrial association, though as will later be explained, the respondents did raise what may be described as a constituent dispute.  That statutory expression is defined by s 298B(1) to mean (inter alia) an association of employees and/or independent contractors and/or employers, a principal purpose whereof is the protection and promotion of their interests in matters concerning their employment, or their interests as independent contractors (as the case requires). 

4                     It is stipulated by Division 1 of s 298B(2) of the Act that for the purposes of Part XA:

‘… action done by one of the following bodies or persons is taken to have been done by an industrial association:

(a)       the committee of management of the industrial association;

(b)               an officer or agent of the industrial association acting in that capacity;

(c)               a member or group of members of the industrial association acting under the rules of the association;

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

5                     In Rowe v Transport Workers’ Union (1998) 90 FCR 95, Cooper J said at 114-116:

‘The principle [as to when a servant or agent will bind a principal] is not limited to the relationship of master and servant but applies to all relationships of principal and agent… If the act is within the scope of the authority of the agent, it is immaterial that the principal directed the agent not to do it or was unaware that the act had been or was to be done…

Section 298B(2)(a) and (b) have the effect of making an industrial association liable for the conduct of the committee of management or an officer or agent of the industrial association, acting in that capacity, where that conduct occurs in circumstances which would render the industrial association liable if the conduct was a civil wrong…

The defining feature of s 298B(2)(b) is that the officer or agent is acting in that capacity.  The definition excludes conduct not undertaken in the capacity of officer or agent.  The authority of an officer to act on behalf of and to bind the industrial association depends upon the extent of the authority which attaches to the particular office or agency.’

Moreover in The Employment Advocate v National Union Of Workers (2000) 100 FCR 454 (‘NUW’), Einfeld J observed at [121] in relation to the immediately preceding paragraph cited from Rowe as follows:

‘Without making any observation on whether and in what manner a special vicarious liability exists in these types of cases, I do not think that his Honour’s words could be taken to mean that in any situation where an officer has acted in a manner apparently within his authority the Union of which he is an officer could escape liability under the Act simply by saying that he was not acting by the rules of the Union when he acted.  Union rules are hardly likely to accommodate conduct that contravenes the law, but that does not mean that unlawful conduct can never be attributed to the Union, as the Act clearly seeks to do.’

6                     Division 5 of Part XA of the Act is headed Conduct by industrial associations etc. Subsection 298P(3) of Division 5 of the Act provides as follows:

‘An industrial association, or an officer or member of an industrial association, must not:

(a)               advise, encourage or incite an employer; or

…

to take action in relation to a person that would, if taken, contravene section 298K.’

The term officer is non-exclusively defined by s 298B, in relation to an industrial association, as follows:

‘(a)      a delegate or other representative of the association; and

(b)       an employee of the association.’

It is s 298P(3) of the Act which is said to have been infringed by the respondents; that subsection is expressed to operate in relation to s 298K of the Act.

7                     In Employment Advocate v Williamson (2001) 111 FCR 20, Gray J as a member of a Full Court, observed at [26] that for an infringement of s 298P(3) to occur, ‘… it must be possible to identify some conduct by the recipient of a communication that the recipient is being advised, encouraged, incited or coerced to take, and which, if taken, would contravene s 298K’.  Branson J as a member of the same Full Court observed at [72] that each of the words of the par (a) expressions advise, encourage or incite in s 298P(3) ‘… bear different shades of meaning but with “advice” being intended to encompass conduct somewhat more lenitive than conduct which could be characterised as encouragement or incitement’. 

8                     Section 298T(1) of Division 6 of Part XA the Act provides that an application may be made to this Court for orders under s 298U in respect of conduct in contravention of Part XA.  Section 298T(2)(d) of the same Division provides that the application may be made by the Employment Advocate.  It is common ground that proceedings under the Act are penal but not criminal in nature, civil forms of procedure being stipulated, and further that the Federal Court has exclusive jurisdiction with respect to contraventions of Part XA. 

9                     Thus s 298U of Division 6 of Part XA of the Act reads as follows, so far as is material:

‘In respect of conduct in contravention of this Part, the Court may, if the Court considers it appropriate in all the circumstances of the case, make one or more of the following orders:

(a)       an order imposing on a person or industrial association whose conduct contravened or is contravening the provision in question a penalty of not more than:

(i)                 in the case of a body corporate - $10,000; or

(ii)               in any other case - $2,000;

…

(c)        an order requiring the person or industrial association to pay to an employee or independent contractor, or to a prospective employee or independent contractor, compensation of such amount as the Court thinks appropriate;

…

(f)                any other consequential orders.’

A contravention of Part XA is not an offence : see s 298X of the Act.

10                  Section 298K(1) of Division 3 of Part XA provides in relation to employers as follows:

‘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.’

11                  A prohibited reason, for the purposes of subs 298K(1), is described in subs 298L(1) of Division 3 of Part XA as ‘conduct… carried out because the employee…

…

(b)       is not, or does not propose to become, a member of an industrial association…’

12                  Division 6 of Part XA is headed Remedies for breaches of this Part. Section 298V of that Division dispenses with the requirement of proof of the reason for, or of the intention of, conduct falling within Part XA, in the following circumstances and to the following extent:

‘If:

(a)       in an application under this Division relating to a person’s or an industrial association’s conduct, it is alleged that the conduct was, or is being, carried out for a particular reason or with a particular intent; and

(b)       for the person or industrial association to carry out the conduct for that reason or with that intent would constitute a contravention of this Part;

it is presumed, in proceedings under this Division arising from the application, that the conduct was, or is being, carried out for that reason or with that intent, unless the person or industrial association proves otherwise.’

13                  In his Article headed The Onus of Proof in Proceedings under Part XA of the Workplace Relations Act 1996 appearing in Vol 15 of the Australian Journal of Labour Law commencing at page 199, Mr Jessup of Queens Counsel observed, in relation to the use by s 298V(a) of the word application, as follows:

‘Under [the Act], proceedings are penal but not criminal.  Civil forms of procedure are used.  The Federal Court of Australia has exclusive jurisdiction with respect to contraventions of Pt XA, and the prescribed means of initiating a civil proceeding in that court is by “application”.  The use by the Federal Court Rules of this rather generic label for the initiating document has led to some uncertainty as to the meaning of the reference to “an application” in para (a) of s 298V.  This is not an unimportant issue, since it is clear that s 298V still requires an allegation as to a particular reason (or intent), and so it should, as the menu of reasons in s 298L is so extensive that it would be quite unrealistic to construe the legislation as imposing on the defendant the onus of disproving every one of them when an applicant has done nothing more than to commence a proceeding under the Part.’

I will later return to the implications of the onus of proof in proceedings for contravention of the Act, by reason of the operation of s 298V.

The Employment Advocate’s case in outline

14                  The starting point of the Employment Advocate’s pleaded case is that the third respondent Construction Forestry Mining and Energy Union has been at all material times an association of employees that is registered or recognised as such under the Act, and also an industrial association within Part XA of the Act, and that each of the first and second respondents has been at all material times a delegate, representative, officer and/or member of that Union.  Subject to the issue raised as to whether the respondents were amenable to the present causes of action, having regard to the allegedly different constituent circumstances of the third respondent as a State or Federal registered union usually bearing the same designation, I will refer to the third respondent in these reasons for convenience of description as ‘the Union’. 

15                  The applicant’s case outlined by the amended statement of claim filed on 3 October 2003 was in outline as follows:

(i)         Bakkante Constructions Pty Ltd (‘Bakkante’) was engaged in the construction of the Clifton Apartments building at Pyrmont near Sydney; Benjamin Yee (‘Mr Yee’) was a working director of Bakkante;

(ii)        Bakkante employed Conrado (also known as Rodney) de los Reyes (‘Mr de los Reyes’) on that construction site; Mr de los Reyes became a member of the Union for a limited period of time in controversial circumstances;

(iii)       on or about 26 November 2002 the first respondent (‘Mr Blevin’) informed Mr Yee that Mr de los Reyes must become a member of the Union, and that Mr de los Reyes was not going to get the pay and work conditions of the Union if he did not effectively pay for the same by becoming a member of the Union, and further that if Mr de los Reyes did not join the Union by Monday 2 December 2002, there would be ‘trouble’;

(iv)       by so doing, Mr Blevin advised, encouraged or incited Bakkante, or threatened to organise to take industrial action against Bakkante, with intent to coerce Bakkante to take action in relation to Mr de los Reyes that would, if taken, contravene s 298K of the Act, namely action to dismiss Mr de los Reyes, or to injure Mr de los Reyes in his employment, or to alter the position of Mr de los Reyes to his prejudice, because Mr de los Reyes would not become a member of the Union;

(v)        by reason of those matters, Mr Blevin contravened s 298P(3) of the Act;

(vi)       on 28 November 2002, in the presence of Mr Yee on behalf of Bakkante, the second respondent (‘Mr McGahan’) enquired of Mr de los Reyes why it was that he did not join the Union, and was informed by Mr de los Reyes that he did not wish to join the Union;

(vii)      immediately following the departure of Mr de los Reyes from their presence, Mr McGahan demanded of Mr Yee that Bakkante cease employing Mr de los Reyes on the Clifton Apartments site;

(vii)      by acting in the manner complained of, Mr McGahan advised encouraged or incited Bakkante, and threatened to organise or take industrial action against Bakkante, with intent to coerce Bakkante to take action in relation to Mr de los Reyes that would, if organised or taken, contravene s 298K of the Act in the following respects, being conduct resulting in the dismissal of Mr de los Reyes, or injuring Mr de los Reyes in his employment, or otherwise altering the position of Mr de los Reyes to his prejudice, because Mr de los Reyes was not, and did not propose to become, a member of the Union;

(ix)       by reason of those matters, Mr McGahan further contravened s 298P(3) of the Act;

(x)        as a result of the actions of Mr Blevin and/or Mr McGahan complained of, Mr de los Reyes ceased working on the Clifton Apartments site from Friday 29 November 2002 until Monday 9 December 2002, on which date he became a member of the Union; that period of time was said to involve the absence of six working days during which Mr de los Reyes would normally have worked, and in addition to that loss of working days, it was further said by the applicant that since joining Bakkante, he had often additionally worked on Saturdays;

(xi)       Bakkante’s ‘in-house’ accountant calculated that Mr de los Reyes lost an estimated $1090.43 gross wages during his absence, calculated at an hourly rate of $16.88 for a forty hours working week, plus a productivity allowance of $3.50 per hour, a site allowance of $1.00 per hour and a travel allowance of $17.95 per day;

(xii)      at all such material times each of Mr Blevin and Mr McGahan was an officer or agent of the Union and/or a member of the Union who performed the function of dealing with Bakkante, being an employer, on behalf of himself and other members of the Union, acting in that capacity, by reason whereof their respective actions are taken to be the actions of the Union; and

(xiii)     by reason of those pleaded circumstances and each of them, the Union also contravened s 298P(3) of the Act.

16                  The relief sought by the application accompanying the original statement of claim, filed on 31 March 2003 was framed as follows:

(i)         an order pursuant to s 298U(a) imposing a penalty on each respondent for contravention of s 298P(3) of the Act;

(ii)        an order pursuant to s 298U(c) requiring each of the respondents to pay compensation of such amount as the Court thinks appropriate to Mr de los Reyes; and

(iii)       orders pursuant to s 298U(f) as the Court sees fit.

The text of those paragraphs of s 298U have been of course earlier reproduced.

The respondents’ defence in outline

17                  The respondents by their respective defences filed in the proceedings raised the following issues:

(i)         whether the applicant had locus standi to bring the proceedings; and

(ii)        whether the respondents were guilty of conduct amounting to breach of relevant provisions of the Act.

Those issues involved a number of complex aspects or considerations which are required to be addressed.

18                  In relation to the first issue, the respondents conceded that the power to make an application in relation to Part XA contraventions could be lawfully delegated by the Employment Advocate to the Head of the Interim Building Industry Taskforce, but contended that Mr Hadgkiss had never been appointed to that office.  In relation to the second issue, in what might be described as its substantive sense, the respondents raised spirited resistance, based upon conflicts between the testimonies principally of Mr Yee and Mr de los Reyes on the one hand, and those of Messrs Blevin and McGahan on the other, and in the course of so doing, matters relating for instance to the employment and work practices and bookkeeping records of Bakkante arose.  The testimonial evidence in the proceedings was tendered in the first instance extensively by affidavits, supplemented later by oral evidence; lengthy cross-examination took place of the principal witnesses.  The hearing of the evidence, and several interlocutory debates, extended over six days, followed initially by detailed written submissions, and subsequently by oral addresses which took place on 4 and 12 December 2003.  A substantial amount of documentary material was tendered in evidence by both parties.

19                  The respondents, or at least the Union as third respondent, raised a further issue, which appeared to be first notified, at least explicitly, in the course of reading the affidavits filed on behalf of the applicant on the opening day of the hearing, being an issue as to whether Messrs Blevin and McGahan were employed by or otherwise represented on the relevant occasions the so-called ‘Federal Union’ bearing the designation of Construction Forestry Mining and Energy Union, rather than of the so-called ‘State Union’ bearing the same designation.  Counsel for the respondents explained the implications of this constituent issue, at the time of foreshadowing the same, as ‘perplexing’, in the following sense:

‘One of the issues that will come up in the case, to put it squarely, is whether people are representatives of… the State Union, being the union registered under the State legislation, or the Federal Union being the union registered under the Federal legislation… They are in fact different legal entities and there’s countless authority [sic] on that point… One of the issues that will come up here very squarely is who are these people employed by… we are saying that they are not employed by the Federal Union.’

None of the ‘countless authorities’ which counsel for the respondents described above appear to have been cited in final addresses.  Whether employment is the sole test for attributing the conduct of Messrs Blevin and McGahan to the Union is controversial.

20                  Moreover I do not think that it was entirely correct for the respondents to speak of an issue as to the difference in legal entity between the Federal and State Unions arising ‘very squarely’ in the proceedings.  The respondents merely did not admit, by their defences originally filed, that Mr Blevin was a delegate and/or representative and/or member of the Union, or that Mr McGahan was a representative, employee and/or member of the Union.  Thereafter there was filed in Court, albeit on the concluding day of the hearing of the viva voce evidence in the proceedings, separate defences by each respondent stating merely to the following effect:

(i)         Mr Blevin did not admit that he was a delegate or presentative or officer of the Union, or that Mr McGahan was a representative, employee, officer or member of the Union, but admitted that he was a member of the Union;

(ii)        Mr McGahan denied that he was a representative, employee and officer of the Union, but admitted to being a representative and employee of the so-called Construction Forestry Mining and Energy Union (NSW Branch); and

(iii)       the Union denied that Mr Blevin was a delegate, representative or officer of the Union but asserted that he was a delegate and representative of the NSW Branch of the Construction Forestry and Energy Union (NSW) Branch; the Union admitted however that Mr Blevin was a member of the Union; the Union further denied that Mr McGahan was a representative, employee or officer of the Union, asserting that he had ‘resigned his office’, whatever ‘his office’ was intended precisely to refer to on 7 January 2002; the Union pleaded that Mr McGahan was an employee of the Construction Forestry Mining and Energy Union (NSW Branch), and admitted that Mr McGahan was a member of the Union. 

The implications of the admissions involve matters of some difficulty.

The circumstances leading to the commencement of the proceedings

21                  On 2 December 2002, Mr J S Copeland, an officer of the Australian Public Service employed by the Department of Employment and Workplace Relations and attached to the Interim Building Industry Taskforce as an Inspector under the operational control of the applicant Mr Hadgkiss, was telephoned by Mr Shah Yee, he being the Chairman of the Board of Directors of Belijan Developments Pty Limited (‘Belijan’) and a director of Bakkante, and the father of the abovementioned Benjamin Yee (Benjamin Yee being referred to in these reasons as ‘Mr Yee’).  It was Mr Yee who gave the principal evidence in the proceedings on behalf of Bakkante, apparently a subsidiary of Belijan.  The father, Mr Shah Yee, was said by Mr Hadgkiss to have originally made allegations to him on behalf of Bakkante in relation to the conduct of Mr Blevin and Mr McGahan complained of the proceedings.  Subsequently on 10 March 2003, Mr Copeland visited the office of the Union at Lidcombe and obtained documentation from the Union, pursuant to a notice dated 20 February 2003 issued purportedly pursuant to s 83BH(4)(d) of the Act.  At the commencement of the second day of the hearing of the proceedings (21 October 2003), I admitted into evidence that documentation, and in so doing I overruled the objections of the respondents.  My basis for so ruling appear in reasons published as Hadgkiss v Blevin & Ors [2003] FCA 1167.

22                  The documentation produced and exhibited to Mr Copeland’s affidavit the subject of those rulings included the following:

(i)         membership application bearing date 24 July 1995 of Mr Blevin to join the Building Workers’ Industrial Union of Australia (BWIU); that organisation was said by Mr Copeland to have later become named as Construction Forestry Mining and Energy Union (‘CFMEU’);

(ii)        electronic membership records held by the Union concerning Mr Blevin;

(iii)       electronic audit receipt book records held by the Union concerning Mr Blevin for the period 16 August 2002 to 19 December 2002;

(iv)       a document titled ‘CFMEU Delegates Registration Form’ dated 8 January 2001 relating to Mr Blevin’s election as a CFMEU union delegate in relation to a Fletcher Constructions site in Harris Street Ultimo NSW; the reverse side of the document contained an undertaking dated 9 January 2001, purportedly signed by Mr Blevin, to abide by the CFMEU Code of Conduct for Union Delegates; and

(v)        an undated CFMEU form requesting delegates to provide information for the Union files (Delegates Information Form), and stating that Mr Blevin was located at  ‘Saunders St Pyrmont’ (being the location of the Bakkante construction site), and that his employer was ‘Beljin Development’.

Resolution of the issue as to the locus standi of Mr Hadgkiss to bring the proceedings

23                  Reference has been made at the commencement of these reasons to the circumstances whereby Mr Hadgkiss purported to exercise the powers and authority of the Employment Advocate, and whereby he assumed authority as a consequence to make the present application to the Court for orders stipulated by s 298U of the Act in respect of alleged contraventions of Part XA of the Act on the part of each of the respondents.  The office of Employment Advocate is established by s 83BA of the Act.  The functions of that office are set out in s 83BB(1), and in addition extend to any other functions given to the Employment Advocate by the Act.  The authority of the Employment Advocate to make application to the Court for orders provided for by s 298U, pursuant to s 298T(2)(d), has been earlier referred to. No issue was raised as to Mr Hamberger’s appointment to the office of Employment Advocate at all material times.

24                  By s 83BE(1)(a) of the Act, the Employment Advocate, by instrument in writing, may delegate any of the Employment Advocate’s powers or functions to a person who is appointed or employed by the Commonwealth.  The instrument of appointment in favour of Mr Hadgkiss was tendered in evidence by the affidavit of Mr Copeland, an employee of the Department of Employment and Workplace Relations, to whom I have already referred in my earlier reasons for judgment in the present proceedings concerning the admissibility of certain documentary evidence said by the respondents to have been obtained unlawfully (Hadgkiss v Blevin and Others (2003) FCA 1167).  No issue was raised as to the authenticity of that instrument.

25                  As I have foreshadowed however, counsel for the respondents put in issue, in their respective defences, the authority of Mr Hadgkiss to bring the subject proceedings as applicant.  It was thus submitted that ‘on its terms’, the instrument of 23 January 2003 (identified in [1] above) did not prove the appointment of Mr Hadgkiss as Head of the Interim Taskforce, and therefore he was not empowered to make the present application to the Court.  There was no issue raised as to the authenticity of that instrument.  The raising of this issue by the respondents presented a formidable task for the respondents, in that the respondents were required to dislodge the presumption of regularity implied in favour of the exercise of power and the doing of acts in the course of Mr Hadgkiss’s statutory duties (Minister for Natural Resources v NSW Aboriginal Land Council (1987) 9 NSWLR 154 at 164 per McHugh JA (as he then was).  It is a presumption of fact, associated with the reasonable inference based on what ordinarily happens in the ordinary course of human affairs (McLean Brothers & Rigg Ltd v Grice (1906) 4 CLR 835 at 849 per Griffiths CJ). 

26                  The evidentiary material forming part of Exhibit A12 in the proceedings discloses the following matters and circumstances relating to the purported appointment of Mr Hadgkiss to the position of Head of the Interim Taskforce:

(i)         the appointment of the applicant as an Assistant Commissioner of the Australian Federal Police on 23 December 1995;

(ii)        the recommendations generally of a Commonwealth Public Service Committee (inclusive of Mr Boxall below referred to), made in October 2002, that Mr Hadgkiss, being the then National Manager of the National Crime Authority, be appointed to the position of Head of the Interim Taskforce into the Building and Construction Industry at SES Band 2 level;

(iii)       the accompanying recommendation made by letter dated 22 October 2002 of Mr Boxall as Secretary of the Department of Employment and Workplace Relations, addressed to the Public Service Commissioner Mr Podger, as to the temporary transfer of Mr Hadgkiss to that position until at least 30 June 2003;

(iv)       the further letter dated 24 October 2002 of Mr Boxall to the Acting Chairman of the National Crime Authority Mr Bradley, reading as follows (omitting formal parts):

            ‘As discussed with Mr John Lloyd, Mr Nigel Hadgkiss, who is a fixed term SES Band 2 employee of the National Crime Authority, has been selected for a temporary movement at the SES Band 2 level to head the Interim Building Taskforce within my department for the period 29 October 2002 to at least 30 June 2003.

            I am seeking your formal agreement to the temporary movement of Mr Hadgkiss to my department and to his movement back to the National Crime Authority following the period of temporary movement.

            I would like to thank you for your cooperation in relation to this matter.’

(v)        the letter of response of the Public Service Commissioner Mr Podger of 24 October 2002 to Mr Boxall reading as follows:

            ‘Thank you for your letter of 22 October 2002 regarding the outcome of the selection exercise for the position of Head of the Interim Taskforce, which will be the movement at level of Mr Nigel Hadgkiss, a Senior Executive Band 2 employee in the National Crime Authority.

            Having considered the information provided against requirements for selection at this level and the certification of the process by my representative on the selection advisory committee, I am satisfied that the selection exercise meets all requirements of the Act, Regulation, and the Commissioner’s Directions.  Mr Yuile’s certification of the process is accordingly endorsed.

            You may now take steps to effect the movement at level of Mr Hadgkiss under sections 25 and 26 of the Public Service Act 1999.’

(vi)       the letter of response of the Acting Chairman of the National Crime Authority (Mr Bradley) of 25 October 2002 agreeing with ‘… the temporary secondment of Mr Hadgkiss as set out in your letter’;

(vii)      the letter of the Human Resources Section of the Australian Crime Commissioner (Ms Caban) to the Department of Employment and Workplace Relations of 14 May 2003, containing the following:

            ‘Mr Nigel Hadgkiss is currently on a temporary movement to your organisation until 30 June 2003.  Please advise whether you intend to request an extension of this temporary movement, or whether Mr Hadgkiss will return to the ACC on 1 July 2003.’

(viii)      the further letter of Mr Boxall of the Department of Employment and Workplace Relations of 20 May 2003 containing the following:

            ‘Mr Nigel Hadgkiss, who is a fixed term SES Band 2 employee of the Australian Crime Commission, is currently on temporary movement to my department at the SES Band 2 level to head the Interim Building Taskforce until 30 June 2003.

            I am seeking your formal agreement to extend Mr Hadgkiss’ temporary movement to my department until 30 June 2004 to continue in his role as Director of the Interim Building Taskforce and to his movement back to the Australian Crime Commission following the period of temporary movement.

            Ms Caban of the Commission has written to the Department on 14 May 2003 on this matter.

            I would like to thank you for your cooperation in relation to this matter.’

(iv)       the letter of Mr Milroy as Chief Executive Officer of the Australian Crime Commission of 6 June 2003 containing the following:

            ‘I refer to your letter of 20 May 2003, seeking my agreement to extend Mr Nigel Hadgkiss temporary movement to your Department.

            I agree to extend Mr Hadgkiss to 30 June 2004.’

27                  The foregoing documentary material provides support for the validly and regularity of the appointment of Mr Hadgkiss, being material provided by the applicant per medium of Mr Copeland.  There was no cross-examination of Mr Copeland undertaken on behalf of the respondents as to the authenticity and implementation of the proposals and recommendations contained or referred to in that material.  In his concluding written submissions, counsel for the respondents conceded that ‘… it would be a contradiction of general human experience for the Commonwealth to fail to appoint a person to an office after preparing to do so…’.  Nevertheless he pointed to the absence of evidence of any explanation from Mr Hadgkiss personally of his purported appointment, thereby supposedly giving rise to a Jones v Dunkel inference in favour of the respondents.  I am unable to accept that any such explanation was required, at least by reason of the operation of the presumption of law to which I have earlier referred.  The instrument of appointment having been proved, and Mr Hadgkiss’s public service qualifications to undertake the appointment having been demonstrated, the validity and operation of Mr Hadgkiss’s appointment at all material times lends assistance to the operation of the evidentiary presumption, if any further assistance be required.  The absence of testimony from Mr Hadgkiss personally of his appointment, upon which the respondents purportedly relied, was of no significance. 

The respondents’ purported withdrawal of their filed defences after the commencement of the hearing

28                  On 21 October 2003, being the second day of the final hearing of the proceedings, the respondents filed a notice of motion for leave to withdraw their respective defences to the statement of claim which, as at that point in time, had been filed in Court.  That application had been foreshadowed on the opening day of the hearing of the proceedings (20 October 2003).  The grounds set out in par 3 of the accompanying affidavit in support of the respondents’ application read as follows:

‘(a)      The Application being one for a civil penalty gives rise to a privilege against self-incrimination in relation to the First and Second Respondents.

(b)       The effect of a Defence under the Federal Court Rules is to require the First and Second Respondents to admit matters which may incriminate them in relation to the Application for a civil penalty.

(c)        In order to protect their specific right to not incriminate themselves, the First and Second Respondents should be allowed to withdraw their Defence to the Statement of Claim except where admissions have already been made.

(d)       In order to protect the general right of the First and Second Respondents to not incriminate themselves, the Third Respondent should be allowed to withdraw its Defence to the Statement of Claim except for admission already made.’

29                  The application of the respondents to withdraw their respective filed defences was argued on the following day (22 October 2003), the argument being preceded by written submissions, tendered on behalf of the respondents, containing the following outline:

‘The basis for the withdrawal is that the respondents are required under the Federal Court Rules to specifically plead material facts on which they rely to make out their defence.  They are also deemed to have admitted any fact which they do not specifically deny (see Order 11 Rule 13).  A general denial of facts is not sufficient to traverse an allegation (see Order 11 Rule 13(3).  A party should admit facts which it know (sic) to be true.  A party may not depart from his pleading to raise any allegation of fact, ground or claim (see Order 11 Rule 8).

30                  It was submitted by the respondents that since the present application was for recovery of a civil penalty pursuant to s 298U of the Act, the respondents should not be required, directly or indirectly, to disclose information or documents which may assist in establishing liability to a penalty.  The respondents cited the dictum of Deane J in Refrigerated Express Lines (A’asia) Pty Ltd v Australian Meat and Livestock Corporation (1979) 42 FLR 204 at 207-208, being dictum appearing in the context of his Honour’s review of earlier cases dealing with principles relating to the raising of an objection by a party to litigation to the discovery of documents and the provision of information, if the result thereof would be to provide evidence against that party which might be used to establish the liability of that party to a penalty.  It was pointed out that the rule applied in relation to the making of orders as well as to the filing of statements in court.  I was referred to Australian Competition and Consumer Commission v FFE Building Services Ltd [2003] FCAFC 132, where in the joint judgment of Emmett, Hely and Jacobson JJ at [14], the following appears, albeit relating to the filing of evidence:

‘By requiring an individual respondent, prior to the disclosure of an applicant’s case, to file statements of evidence proposed to be given by witnesses to be called by that respondent, such a respondent would be exposed to the risk that indirect or derivative evidence, being evidence obtained by using the material disclosed in the statement as a basis of investigation, could be tendered against the respondent.  The provisional disclosure of information may set in train a process that may lead to the imposition of a penalty or may lead to the discovery of real evidence in support of the imposition of a penalty.’

As indicated, the imposition of a penalty is sought by the applicant in the present proceedings.  It may be observed that the statutory limit prescribed by s 298U(a) (ante) is relatively speaking of a modest dimension, and in the present instance, doubtless substantially below the legal costs incurred by each party. 

31                  The respondents’ defences filed up to the time of commencement of the hearing of the proceedings were not of course required by the Federal Court Rules to be verified on oath.  Counsel for the respondents submitted nevertheless that the pleading of an unverified defence ‘required by the Federal Court Rules to admit matters’ might conceivably serve to incriminate the respondents.  It was submitted, at least on that footing, that the respondents were entitled to invoke the privilege against self-incrimination, and therefore in the present circumstances to withdraw their respective defences, albeit after the commencement of the hearing.  Counsel described the privilege against self-incrimination as deeply ingrained in the general law, and subject to statute, as being also unqualified, and as extending to protection against indirect or derivative evidence (citing in that regard Reid v Howard (1975) 184 CLR 1 at 6 (Deane J)).

32                  After protracted debate upon the implications of the respondents’ application for leave to withdraw their respective defences, the controversy was resolved upon the footing that the applicant would consent to the filing in Court on 23 October 2003 (by then the third day of the final hearing of the proceedings) of further amended defences of each of the respondents, the same containing inter alia the following admissions expressed to apply as at ‘all material times’:

(i)         by all respondents, that the Union was an association of employees or an industrial association;

(ii)        by Mr Blevin, that he was a member of the Union;

(iii)       by Mr McGahan, that he was a representative and employee of the NSW Branch of the Union, but that he was not a representative, employee and officer of the Union;

(iv)       by the Union, that Mr Blevin was a delegate, representative and member of the NSW Branch of the Union;

(v)        by the Union, that Mr McGahan was a representative, employee and member of NSW Branch of the Union;

(vi)       by all respondents, that Bakkante was an employer undertaking construction work at Saunders Street Pyrmont on a site known as the ‘Clifton Apartments Site’;

(vii)      by Mr Blevin and the Union, (but Mr McGahan pleaded that he did not know) that Mr de los Reyes was not a member of the Union;

(viii)      by Mr Blevin, that he had said to Mr de los Reyes that Mr de los Reyes was getting the benefits of an ‘EBA’ and conditions negotiated by the Union, and that he should consider joining the Union (that reference to ‘EBA’ was to an enterprise bargaining agreement);

(ix)       by Mr Blevin, that he had dealt ‘with Bakkante on behalf of himself and other members of the State registered Union called the Construction Forestry Mining and Energy Union (NSW Branch)’; and

(x)        by Mr McGahan, that he stated on an occasion that ‘if Mr de los Reyes did not have workers compensation insurance that he should not be working on the site’.

33                  The course thus ultimately adopted by the parties rendered unnecessary my consideration of the implications of the reasons for decision of Gyles J in Alfred v Walter Construction Group Ltd [2003] FCA 993, in so far as that decision might have borne upon the controversy raised as to the filing of defences by trade unions and trade union officers, in circumstances of industrial disputation involving admissions having or tending to have penal criminal implications.  I might add for completeness that since the hearing of the present proceedings, leave to appeal his Honour’s decision in Walter was refused by a Full Court comprising Wilcox, Moore and Marshall JJ ([2004] FCAFC 36). 

The operation of the Briginshaw evidentiary test upon the resolution of the causes of action pleaded

34                  This was a further issue raised by the respondents in the course of the final hearing, and in particular in final address.  It has been established that the Briginshaw standard of proof may apply to proceedings for contravention of the Act, where the conduct alleged is of a serious nature.  That view was expressed, for instance, by R D Nicholson J in the context of his Honour’s resolution of the issues involved in Maritime Union of Australia v Geraldton Port Authority (1999) 93 FCR 34 (‘MUA’), where the substantive allegation was a conspiracy to injure a trade union applicant by unlawful means.  It is first perhaps appropriate to recall to mind what was said by Dixon J (as he then was) in Briginshaw v Briginshaw (1938) 60 CLR 336 at 362:

‘But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved.  The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal.  In such matters “reasonable satisfaction” should not be produced by inexact proofs, indefinite testimony, or indirect inferences.’

More recently in Watson v Foxman (2000) 49 NSWLR 315 at 319, McLelland CJ in Eq observed in relation to satisfaction of the Briginshaw test as follows:

‘Each element of the cause of action must be proved to the reasonable satisfaction of the court, which means that the court must feel “an actual persuasion of its occurrence or existence”.  Such satisfaction is “not… attained or established independently of the nature and consequence of the fact or facts to be proved” including the “seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding”: Helton v Allen (1940) 63 CLR 691 at 712.’

Where however the reverse onus provisions of s 298V apply in particular proceedings, an application of the Briginshaw standard may become more complex to articulate and to apply.  I will therefore refer to authority relating to the operation of s 298V of the Act, as well as the published article on the subject written by Mr Jessup QC.

35                  In NUW, the Briginshaw standard was applied by Einfeld J in circumstances where the Employment Advocate alleged that the Union and its organiser had encouraged or incited an employer to injure one of its employees, or to alter that employee’s position to his prejudice for a prohibited reason, because the employee was not and did not appear to intend to become a member of a trade union.  At 481, his Honour said that it was unnecessary to plead the operation of s 298V of the Act, adding in that context the following observations:

(i)         ‘… there is no requirement to plead s 298V expressly in order to rely on its operation’;

(ii)        ‘The section is an evidential one, operational upon the sections in its Division once facts are alleged which bring an evidentiary provision such as this into operation…’;

(iii)       ‘… the relevant paragraphs of the amended statement of claim adequately alleged that conduct was done for a particular reason, after which the Advocate is entitled to rely on the s 298V presumption’;

(iv)       ‘Section 298V operates to alleviate the evidentiary difficulties that would otherwise be faced by a party seeking to prove the state of mind or motivation of the other party’.

36                  Shortly prior to NUW, Merkel J in Australian Municipal, Administrative, Clerical & Services Union v Ansett Australia Ltd [2000] FCA 441 described the implications of the conclusions of R D Nicholson J in MUA as follows:

(i)         if the applicant proves the conduct and alleges it was carried out for a proscribed reason, it is for the respondent to prove, on the balance of probabilities, that it was not motivated for an impermissible reason;

(ii)        a reason is an impermissible reason if it is one of the operative reasons for the conduct;

(iii)       to be an operative reason there must be a causal connection between the conduct and the proscribed reason relied upon by the applicant; and

(iv)       whether the respondent was actuated by a prohibited reason, or reasons which included a prohibited reason, is a question of fact which will often involve questions of judgment and the characterisation of the employer’s reasons.

37                  In the course of his article on the Onus of Proof in Proceedings Under Part XA of the [Act] (ante), Mr Jessup QC pointed out that s 298V, which has no materially similar precursor to be found in earlier industrial legislation, assumes that a relevant allegation has been made, and sets up a presumption that the respondent’s conduct was done for the reason or intent alleged, unless proved otherwise.  The learned author thereafter observed at 203 as follows:

‘On one view, the applicant is under no obligation to prove the existence of facts which would provide a basis for the presumed reason.  For instance, an applicant would not have to prove (or even allege) that an employee was a union member: it would be necessary only for the applicant to allege that the dismissal of the employee was done because he or she was a union member, leaving it to the respondent to disprove that allegation, one possible way of doing so being to prove that the employee never was a union member.

There are statements in the cases that would support such a construction of s 298V, although it must be said that that support comes more from the generality with which the terms of the section are paraphrased than from a consideration of the particular point.’

After then citing the Full Federal Court decisions in Davids Distribution Pty Ltd v National Union of Workers (1999) 91 FCR 463, and Greater Dandenong City Council v Australian Municipal, Clerical and Services Union (2001) 184 ALR 1 as exemplifying his foregoing observations, the author observed that the only judgment of the Federal Court, at the time of his published article, in which the question as to what was needed to be proved, by way of existing facts in order to provide a basis for the operation of the presumed reason, was that of Branson J given in Construction, Forestry, Mining and Energy Union v Coal and Allied Operations Pty Ltd ]1999] FCA 1531 at [161]-[162], the material segment whereof reading as follows:

‘I have concluded… that [the employee] did not relevantly participate in proceedings under an industrial law within the meaning of s 298L(1)(j).  Section 298V of the Act does not, in my view, allow the applicant to circumvent that finding.  Rather it is to be construed as an aid to proof of the intent or reason of the respondent which motivated, or formed part of the motivation for, the respondent’s conduct.  It may fairly be presumed that the section is intended to alleviate the difficulties of proof by one party of the state of mind or motivation of another… The impact of s 298V, in my view, is simply to alleviate the evidentiary difficulty facing the applicant of providing proof of the intent or reason which motivated, or formed part of the motivation for, the respondent’s conduct following the absence of the employee from work.’

The conclusion of the learned author was to the effect that unless s 298V is to be treated as having introduced a significant change in the law, and one which went unannounced in the Minister’s second reading speech and the explanatory memorandum, the construction of s 298V enunciated by Branson J, as set out above, should be adopted, with the result that, as in the past, an applicant must still prove the existence of the objective facts which provide the basis for the reason for which the respondent is alleged to have acted.  In other words, as Mr Jessup QC proceeded to explain in his Article at p 205, ‘[i]t is not that the applicant’s allegation is prima facie evidence of the matter alleged; it is that the issue is presumed determined in favour of the applicant, unless the respondent proves otherwise’. 

38                  The foregoing conclusions readily accommodate the principles of construction enunciated subsequently to the publication of Mr Jessup’s Article in NUW and Ansett which I have cited. 

The constituent basis of the Union and of the respective positions held by Messrs Blevin and McGahan in relation to the Union – whether the proceedings were validly constituted against the Union

39                  As I have foreshadowed, counsel for the respondents submitted that in so far as concerns the conduct of Messrs Blevin and McGahan complained of, the third respondent, to whom I have been referring as the Union, should be constituently distinguished, at least in the context of the issues the subject otherwise of the present proceedings, from what he described as the ‘State Union’, and further that the conduct complained of on the part of Messrs Blevin and McGahan, if it in fact occurred, which was denied, constituted conduct attributable to the State Union alone, and to Messrs Blevin and McGahan as purportedly acting on behalf of and as representatives of the State Union alone.  In that regard, counsel for the respondents said in his written submissions: ‘It is conceded for the purposes of this proceeding that action in breach of s 298P(3) by either of the first two respondents is action of the third’, but that ‘Simply put it is submitted that no such action exists’.  Counsel for the respondents explained ‘Nevertheless there are some functions that would normally be carried out by the first two respondents [which] cannot be carried out by the third respondent.  This is simply because the third respondent does not have the legal power to perform a number of functions under the industrial legislation of NSW’.  He further explained his contention in the following way:

‘By virtue of the federal system, industrial associations may be registered both under the state system of registration under the NSW Industrial Relations Act, and under the Commonwealth system of registration under the Commonwealth Workplace Relations Act.  The effect of this is that the state registered association (the state union) and the commonwealth registered union (the commonwealth union), depending upon their rules, may have different membership, different officers and different objects.  Each will have industrial instruments and certified agreements that are different in content and scope.  Most importantly, some functions are only exercisable by one organisation.’

The submission did not explicitly state that what was referred to as ‘the commonwealth union’ and ‘the state union’ in the above submission were different legal entities.

40                  In order to resolve the contentions put forward by the respondents’ counsel as summarised above, I shall describe as the ‘Federal Union’ the CFMEU entity whose Rules are filed in the Australian Industry Registry (Exhibit A3), and I shall describe as the ‘State Union’ the CFMEU entity whose Rules are filed in the Industrial Registry of the State Industrial Relations Court of New South Wales (Exhibit R7).  The respondents’ contention, as I have foreshadowed, was that the Federal and State Unions are separate legal entities, and that the conduct attributable to Messrs Blevin and McGahan took place or was undertaken in their capacity as representatives of the State Union and not of the Federal Union.  Counsel for the respondents explained that ‘… both bodies are separate, separate as a matter of law and as a matter of fact’, though the constituent basis for that assertion was not explained in any detail.  The resolution of the issue is complicated by the circumstance that the words ‘NSW Branch’ are sometimes added to the designation of the Construction Forestry Mining and Energy Union in official documentation in evidence.

41                  Examples of the State Union being discretely invested with specific powers in a number of areas under NSW State legislation were said by the respondents, in their written submissions, to be as follows:

(i)         the authorising of officers: s 299 of the Industrial Relations Act 1996 (NSW);

(ii)        the right to inspect workers compensation documents : s 163A of the Workers Compensation Act 1987 (NSW);

(iii)       the right to enter the premises for occupational health and safety reasons: s 77 of the Occupations Health and Safety Act 2000 (NSW);

(iv)       the right to enter and inspect wage records: s 298 of the Industrial Relation Act 1996 (NSW);

(v)        the right to prosecute for breaches of State industrial legislation : s 357 of the Industrial Relations Act 1996 (NSW); and

(vi)       the right to enter workplaces to discuss matters with employees : s 297 of the Industrial Relations Act 1996 (NSW).

42                  Counsel for the respondents pointed out that the State Union was party to certain State Awards relating to the building industry, including the Building and Construction Industry (State Award).  It was further said that the latter award operated as a ‘common rule’ award, meaning that the terms of that Award apply to all classifications of work set out in clause 4 thereof, and subject to the so-called Area Incidence and Duration clause, apply to clause 6 thereof, unless a Federal Award, or a Federal or State Enterprise Agreement apply to the employment of any particular employees.  That State Award was said to be different to the National Building and Construction Industry Award 2000 (exhibit A11 in the proceedings), because that Federal Award was not a ‘common rule’ award which applies to all employers in the industry, which meant that in order for the Federal Award to apply to the employment of employees, an employer must be a party to the Federal Award, or be a member of an employer organisation that is a party to the Federal Award, such as the Master Builders Association.  It followed therefore, so the respondents’ submission continued, that whilst the employees of a principal contractor, were ‘covered’ by the Federal Award, where the contractor was a member of the Master Builders Association privy to the Federal Award, there could have been subcontractors whose employees were covered by the State Award.  No such subcontractors engaged on the subject site were specifically identified in the respondents’ submissions.

43                  The respondents pointed to a number of asserted differences in the terms of the respective Federal and State Awards, including, ‘but… not limited to’, nine examples.  In none of those examples was it explained however why the same involved directly analogous instances to circumstances appertaining to the Federal and State Unions respectively.

44                  As I have foreshadowed, tendered by the applicant into evidence as Exhibit A3 are the ‘Rules of the Construction, Forestry, Mining and Energy Union’, duly certified under the seal of the Australian Industrial Registry on 21 October 2003 to be a true and correct copy of the original Rules as at 3 February 2002.  Those Federal Rules are lengthy and complex in scope.  Clause 2 stipulates that ‘the Union shall consist of an unlimited number of persons whether male or female (1) employed in, usually employed in, or qualified to be and desirous of being employed in or seeking to be employed in or in connection with the industry or industries, and/or occupations, and/or calling, and/or vocations, and/or industrial pursuits of: and/or (2) who otherwise than as employees or employers, follow an occupation in or in connection with the industry or industries of: and/or (3) who, otherwise than as employees or employers, are engaged in the industrial pursuit or pursuits of’; thereafter follows numerous descriptions of what may be described as building industry tradesmen engaged or employed in industrial pursuits. 

45                  Attention was drawn by the applicant to Rule 2(B)(1) of the Federal Rules in particular, appearing on page 6 of Exhibit A3, the same purportedly relating to ‘workers (other than a tradesperson) engaged on any work in or in connection with or incidental to the erection, repair, renovation, maintenance, ornamentation, alteration, removal or demolition of any building.’  Branches of the Federal Union in various Australian States, including the State of New South Wales Branch, were identified.  It is apparent that Mr de los Reyes became eligible and qualified, by virtue of those Rules, to become a member of the Federal Union, once he ceased his involvement in cleaning work for Phoenix, and undertook building and construction work, on the Clifton Apartments site, for Bakkante.  In the context of that cleaning work, he was a member of the Miscellaneous Workers Union, and indeed remained so throughout the whole of the period of controversy. 

46                  Additionally adduced into evidence by the applicant, by way of annexures to the (second) affidavit of Mr Jenkins sworn 14 April 2003 (he being the Acting Deputy Industrial Registrar of the Australian Industrial Registry purportedly appointed pursuant to s 77 of the Federal Act), were documents relating to the Federal Union.  Mr Jenkins had the care, custody and control of records held by that Registry’s Sydney office at the times material to the present proceedings.  Those documents encompass inter alia the Federal Union’s ‘Construction and General Division, NSW Divisional Branch’, as well as other State Divisional Branches, and also include the certificate of registration of the Federal Union, issued on 11 September 1962 by the Industrial Registrar under the auspices of the federal precursor legislation Conciliation and Arbitration Act 1904 (Cth).  They further include the Rules of the Federal Union’s Construction and General Division Branches, in force as at 18 July 2002.  That instrument (which is annexure BJ-2 to Mr Jenkins Affidavit) is not the same as the Rules of the Construction, Forestry, Mining and Energy Union (identified earlier as Exhibit A3).  Also tendered into evidence by Mr Jenkins’ affidavit was a list of ‘Office Bearers of the Federal Union’s Construction and General Division, New South Wales Divisional Branch’ as at 2 January 2002, duly lodged in the Industrial Registry, which included reference to Mr McGahan as a then branch organiser, and to Mr Blevin as a then branch council delegate.  Mr Jenkins testified in his affidavit concerning the function of the Registrar in issuing permits for entry and inspection by trade union organisations, pursuant to Division 11A of Part IX of the Federal Act.  Mr Jenkins was not cross-examined upon the content of his two affidavits made on behalf of the applicant in the proceedings. 

47                  After referring to the provisions of s 285A(1) of the Federal Act concerning the grant of permits for the entry and inspection of premises etc by ‘organisations’, pursuant to Part IX Division 11A thereof, Mr Jenkins additionally testified by affidavit as to the practice of issuing permits pursuant to that sub-section, at the request of the Federal Union’s Construction and General Division, NSW Divisional Branch, and to the following official information provided to the Registry:

‘·   Joseph McGAHAN – Permit Number R20388/00, issued on 25 February 2000, with an expiry date of 24 February 2003, as an employee of the Branch.  No application for a further permit has been made to date.

·        David GLASS – Permit Number R20381/00, issued on 25 February 2000, with an expiry date of 24 February 2003, as an employee of the Branch.  A further permit Number R2003/453 was issued on 24 February 2003 with an expiry date of 23 February 2006.

·        David BLEVIN – There are no records held indicating this person has been issued with a permit.’

48                  Tendered additionally by the applicant as Exhibit A13 was a further bundle of documents produced to the Court by the Construction and General Division of the Federal Union, comprising (inter alia) the following:

(i)         an undated document headed ‘Attention all Delegates’, purportedly completed by Mr Blevin in his own handwriting at the time he was earlier employed by ‘Fletchers’ of ‘Pyrmont Street’; at the foot thereof appears the words ‘Registered under Federal & State Industrial Relations Acts’, and Mr Blevin’s designation as ‘Site Safety Representative’; the abovementioned Mr David Glass (‘Mr Glass’), an organiser of the Union who gave evidence in the proceedings on behalf of the respondents, was stated on the form to be the ‘CFMEU Organiser for your Site’;

(ii)        a further undated document on the same printed form as (i) above, bearing a fax date 20 August 2002, again purportedly completed by Mr Blevin in his own handwriting, by this time showing, following a question mark, the words ‘Beljin (sic) Development’, as the ‘employer’ located at Saunders Street Pyrmont, and Mr Blevin again as ‘Site Safety Representative’, and Mr Glass as ‘CFMEU Organiser for your Site’; as earlier mentioned, Belijan was the holding company of Bakkante;

(iii)       letter dated 10 October 2000 from the Australian Electoral Commission addressed to the CFMEU Construction & General Division (NSW Divisional Branch), and disclosing Mr Blevin as a ‘Divisional Branch Council Member – Sydney Zone New South Wales Divisional Branch’, and Mr McGahan as a New South Wales Divisional Branch Organiser;

(iv)       a further CFMEU Construction & General Division (NSW Divisional Branch) document bearing date 8 October 2002 showing both Mr Glass and Mr McGahan as part of the then ‘current list of elected and temporary organisers engaged by [the Branch]’;

(v)        a CFMEU ‘Personnel Management Record’ dated 11 March 2002 relating to Mr McGahan and purportedly bearing his signature, together with a ‘tax file number declaration’ of the same date showing as his then employer ‘CFMEU Construction & General, New South Wales Divisions Branch’; and

(vi)       Mr McGahan’s ‘Authority to Enter Premises’ dated 19 August 1999 issued by the Industrial Registrar pursuant to the Industrial Relations Act 1996 (NSW), and associated official correspondence.

49                  The respondents for their part tendered into evidence a lengthy document headed ‘CFMEU – RULES’ (Exhibit R7), clause 1 whereof stating that ‘The name of the Union shall be the ‘Construction, Forestry, Mining and Energy Union (New South Wales Branch)’.  The susceptibility for at least confusion between that designation of the State Union, and that of the Federal Union, may be readily appreciated.  Those rules describe in detail the persons or entities, being employers and employees, who are qualified to be members of what I have been referring to for convenience of identification as the State Union.  By Clause 12 of the principal Rules forming part of that document, the supreme governing body is stipulated to be ‘the State Conference convened every two (2) years’.  Attached to that document were the ‘CFMEU-NSW Branch Construction and General Division Rules’, and followed by the ‘CFMEU (NSW Branch) Mining and Energy Division’ Rules, followed further by the Rules of various Divisions of ‘CFMEU (NSW) Branch’.  The respondents also tendered into evidence the Building and Construction Industry (State) Award filed in the Industrial Relation Commission of New South Wales on 30 June 2003, which was gazetted on 3 October 2003 (Exhibit R6), to which reference has already been made.  The contents of the latter document are devoted, at least for the most part, to salary and leave entitlements applicable to the State of New South Wales.  The respondents did not undertake the task of summarising the subject and matters addressed by the Federal Rules on the one hand, and those of the State Rules on the other. 

50                  The significance to the issue as to parties purportedly raised by the respondents falling for resolution in the proceedings, which counsel for the respondents sought to draw from those constituent documents was definitively unclear. Moreover the following concessions were made in the written submissions of the respondents as follows:

‘It is conceded that the first and second respondents are officers (but only in the extended definition that includes representatives) and members of an industrial association and that industrial association is the third respondent.  McGahan was not an officer in the sense of an “elected official” having resigned his position on January 2002 (See Exhibit A13).  It is conceded that Blevin was an elected officer of the third respondent being a councillor representative for the Sydney Zone in the Divisional Branch.’

Those concessions provided a seemingly sufficient prima facie basis for the conclusion asserted by the applicant to the effect that the conduct of the first and second respondents complained of was relevantly attributable to the third respondent as the Federal Union, whether or not that conduct was also attributable to the State Union.  No judicial or legislative authority was cited by counsel for the respondents for the respondents’ proposition to the effect that the Federal and State Unions were different legal entities, such that the conduct of the first and second respondents complained of was attributable only to the latter.  No challenge was ever mounted to this Court’s jurisdiction to resolve all issues purportedly arising in the proceedings. 

51                  The applicant relied for its part upon the evidence of Mr Jenkins, which I have earlier summarised, and the documentary material which Mr Jenkins identified in the course of providing that evidence, being evidence unchallenged by any cross-examination on behalf of the respondents (indeed Mr Jenkins was not cross-examined on his affidavit at all), and also the additional material tendered by the applicant as Exhibit A13, as prima facie evidence of attribution of the conduct, both of Mr Blevin and Mr McGahan, to the Federal Union as the third respondent.  In the light of that material tendered by the applicant in chief which I have reviewed, what I would describe for convenience as the evidentiary onus devolved upon the respondents to demonstrate why it was that the conduct complained of in the proceedings on the part of the first and second respondents was not attributable to the third respondent, that is to say, to the Federal Union.  The prima facie inference open to be drawn in my opinion, based on the documentary evidence which I have identified in these reasons, is that the conduct of each of Mr Blevin and Mr McGahan complained of in the proceedings should be attributed to the Federal Union, assuming the State Union is distinguishable from the Federal Union as a legal entity.  The constituent distinction sought to be raised by the respondents in rebuttal of that inference, which was inadequately pleaded in the first place, was not in my opinion satisfactorily explained or rationalised in the respondents’ submissions, whether orally or in writing. 

52                  In the circumstances it becomes in my view unnecessary for me to additionally examine the provisions of the National Building and Construction Industry (State) Award gazetted on 3 October 2003.  The facts are that Mr de los Reyes’ employment categorisation for industrial purposes was that of construction level 1 (CW1), to which the National Building and Construction Industry Award 2000, being a Federal Award, duly applied.  That was because Bakkante was a member of the Master Builders Association, being an employer respondent to the Federal Award.  Nevertheless I will record certain matters to which counsel for the applicant additionally drew my attention. 

53                  Clause 18.1.2 on pages 34 and 35 of the Federal Award contains the classification ‘labourers’, which includes ‘builders labourers other than as specified in classification 1-3 herein’.  That classification applies in relation to work undertaken (inter alia)in the State of New South Wales, so far as concerns the employment of persons as builders’ labourers engaged in any building work : see clause 6.1.2(a) on page 21.  The evidence disclosed that Mr de los Reyes, in the events which happened in terms of his construction type activities undertaken on the site, that is, activities subsequent to the preceding part time cleaning work earlier undertaken by him for his family company Phoenix, became classified as a builder’s labourer.

54                  Clause 19 of the Federal Award, which appears to have originated against the background of restructuring which had previously taken place in the building and construction industry, provides for a ‘new entrant classification’ (clause 19.2.7 at page 48), identified above.  The CW1 classification earlier mentioned included builders labourer group 4 – see clause 19.3.1(a)(iv) on page 51.  Reference to ‘Labourer (4) – Builders Labourer (other than as specified herein)’ appears on page 36 of the Federal Award. 

55                  The respondents sought to meet those factors by tendering the Building and Construction Industry (State) Award gazetted on 3 October 2003 (‘the State Award’) (Exhibit R6).  In order to further endeavour to demonstrate the relevance of that State Award to the constituent issues raised by the respondents, the respondents sought to rely upon certain documentation concerning the activities of Independent Waterproofers Pty Ltd (‘Waterproofers’), being a company unrelated corporately to Bakkante, though at some stage engaged as a subcontractor on the Clifton Apartments or Bakkante building site.  Notification by Waterproofers of a dispute dated 13 February 2003 was lodged with the New South Wales Industrial Registrar, being a dispute which arose out of the apparent refusal by the managing director of Waterproofers to allow time and wages books to be inspected by Mr McGahan and Mr Glass. The position initially adopted by Waterproofers before the State Industrial Court was apparently to the effect that Mr Blevin did not have authority to inspect wages books or otherwise to make certain demands previously pursued on behalf of the Union some months after the resumption of work on the subject building site in Pyrmont, following the financial collapse of an earlier head contractor for the building development.  Waterproofers was apparently a member of the Master Builders Association of New South Wales (as is the case of course also of Bakkante), a matter which subsequently prompted the contention of Waterproofers to the State Industrial Court that it had mistakenly notified that particular dispute arising with CFMEU (using that description neutrally) to the New South Wales Industrial Registrar.  As matters transpired by 13 March 2003, the New South Wales Industrial Commission was notified by Waterproofers that the proceedings so commenced by it were to be discontinued.  There was no finding made by the Commission to the effect that it was the State Union, to the exclusion of the Federal Court, which had jurisdiction in relation to the Waterproofers’ notified dispute.  The Waterproofers proceedings thus provided no assistance to the respondents’ case, contrary to the position they adopted at the hearing. 

56                  My conclusion is that the position adopted by the applicant, to the effect that the Federal Award did operate to regulate the terms and conditions of employment of building and construction employees of Bakkante at the Clifton Apartments site, including the later employment of Mr de los Reyes as a construction worker, is correct, and that the proceedings have been correctly structured accordingly.  I therefore uphold the consequential submission of the applicant that this Court has appropriate jurisdiction to entertain the present application of the Employment Advocate’s delegate, being an application brought against the respondents on the footing of the third respondent’s status as a trade union having its principal constituent rules registered with the Australian Industrial Registry.  If I be wrong in that conclusion, I would be alternatively of the view that on my reading of the documentary material of constituent or tending to constituent nature, the Federal Union and the State Union are subject to a unified administration, such that in the present case, even if they are constituently distinguishable for reasons not adequately demonstrated, the conduct of Messrs Blevin and McGahan is relevantly attributable to both trade unions. 

Observations upon the nature of the evidence adduced by the applicant of a testimonial nature which falls for resolution of the principal issue arising in the proceedings

57                  I have found it necessary and appropriate to reproduce below a substantial amount of the affidavit and viva voce testimonies adduced by the applicant because as will later appear, those testimonies were contradicted by the three witnesses for the respondents, two of whom were the first and second respondents to the application.  The nature and context of those contradictions requires detailed narration and explanation.  The judgment which I am required to make is whether the applicant’s witnesses or the respondents’ witnesses gave truthful and accurate evidence to the Court, especially concerning the controversial coffee shop meeting, and certain preceding and following conversation and events which tend to throw light on the veracity of that conversational evidence.  It is a judgment which must be made in the light of the authorities which I have earlier cited as to the burden of proof which the applicant is required to discharge, and in the light of the substantial body of evidentiary material which preceded that occasion, and of the concluding events and circumstances of the dispute. 

58                  As will have been appreciated, the Court is not assisted, for the purpose of reaching the Court’s conclusions upon the accuracy and truthfulness of the conflicting evidentiary accounts of the respective parties, by the existence of documentary evidence in the form of correspondence or, contemporaneous or virtually contemporaneous notes of the conversations involved.  It is largely for that reason that I have found it necessary and appropriate, as I have just foreshadowed, to reproduce or summarise a great deal of the affidavit evidence of the parties, as well as indicate the extent of such additions or modifications thereto as emerged in the course of cross-examination.  It is only by so doing that an appreciation can be gained as to the credibility of the respective evidentiary accounts of the parties.  I should say at once that the witnesses for the opposing parties to this litigation adhered essentially to their respective affidavit accounts in the course of cross-examination.  I must therefore undertake the task of determining which of the testimonial accounts of a number of controversial conversations should be accepted, in accordance with the principles as to the appropriate onus of proof which I have earlier digested from authorities of this Court.  Only by reproducing much of the testimonial evidence given may an appreciation be gained of what should be found by the Court to have taken place in relation to the critical areas of controversy.

The events involving the respondents giving rise to and constituting the matters complained of by the applicant – the testimonial evidence adduced from the applicant’s witnesses

59                  I shall now describe in more detail the circumstances giving rise to the contentious conduct of the respondents complained of by the applicant, as appears mainly from the evidence tendered by the applicant, chiefly by affidavit. 

60                  At the request of Mr McGahan, (of course the second respondent), and of Mr Glass, in their respective capacities as organisers of the Union, Bakkante undertook the employment of Mr Blevin on 1 August 2002 as a general labourer on the Clifton Apartments/Bakkante construction site located in Saunders Street Pyrmont, to which of course reference has already been made.  According to Mr Blevin, he had earlier met with Ricardo Zoratto (‘Mr Zoratto’), Bakkante’s site manager and a witness for the applicant in the proceedings.  Mr Blevin claimed to have said to Mr Zoratto, in the presence of Mr Glass, ‘We need someone to look after safety and a union delegate on the job’.  Construction work on the development of the site had commenced in May 2001, and the completion date had been originally programmed for 13 September 2002.  The preceding head building contractor for the development had been Lecan Constructions Pty Ltd (‘Lecan’), a company unrelated to Bakkante.  It was a substantial project, the original contract price being in the order of $12 million.  Sub-contractors engaged by Lecan ceased on-site work in early June 2002, in the context of financial difficulties involving substantial default by Lecan in payment of its subcontractors.  Mr McGahan became ‘heavily involved in sorting out the Lecan problems on site’, to cite Mr Ben Yee’s evidence.  In the upshot, Belijan (the building developer corporately related to Bakkante earlier identified) appears to have assumed responsibility for payment of arrears owing by Lecan to its subcontractors for work undertaken from 1 May 2002.  The Union apparently played a significant role in ensuring payment was made to sub-contractors unpaid by Lecan.  When on-site work resumed on 19 June 2002, Bakkante assumed the management of payments thereafter to be made to on-site sub-contractors, and the functions otherwise of head contractor in the place of Lecan, which had submitted in the meantime to insolvent administration.  It appears that Bakkante paid its employees rates of pay according to the Enterprise Bargaining Award (‘EBA’), notwithstanding that Bakkante did not have an EBA with the Union, and notwithstanding that as a member of the Master Builders Association (‘MBA’), Bakkante would normally have paid its workers pursuant to the National Building and Construction Award (Federal) 1990, to which reference has already been made in these reasons.  At least from about that time, Mr Yee was engaged operationally on the site on behalf of Bakkante on virtually a daily basis, as Bakkante’s principal officer and representative.  Shortly after Mr Blevin had commenced employment for Bakkante on 1 August 2002, he was elected as the site delegate of the Union, and Bakkante was so notified.  Mr Blevin had been previously the Union’s site delegate in the context of his employment on at least two other building sites in Sydney. 

61                  It appears that from the time Mr Blevin entered upon his employment duties for Bakkante, issues were raised by him, in discussion with Mr Zoratto, concerning the availability of work on Saturdays, work safety, site amenities, and trade union membership of subcontractors.  On 28 August 2002, all construction work on the site ceased for about five hours of productive time, without prior consultation with Bakkante, or with Mr Zoratto in particular as site manager.  The ‘leading hand’ employed on the building site by Bakkante, Mr Trados, reported in the site diary for that day that ‘everyone left site 10.00am due to union policy’.  Mr Blevin said that he ‘did not get on quite well’ with Mr Trados, whom he described as having ‘no significant experience in the industry’.  Whether that strike action was justified or otherwise is not an issue of any kind in the proceedings.  The incident merely exemplified Mr Blevin’s early impact on this construction site and its activities in his capacity as site delegate of the Union. 

62                  As I have earlier mentioned, Mr de los Reyes, the focus of the dispute the subject of the proceedings, had been originally contracted to undertake cleaning work in relation to an occupied office building situate at 117 Murray Street Pyrmont, where the administrative offices for the Belijan corporate group, inclusive of Bakkante, were located.  That cleaning work had been performed by Mr de los Reyes per medium of his cleaning (family) company Phoenix.  He had been assisted in that cleaning work by the part time or casual employment of his wife Elizabeth and his son Eduardo.  Phoenix held a public liability insurance policy, but not a workers compensation insurance policy, a matter which featured in the later contentious events of this litigation.  Mr de los Reyes said that he did not think he needed the latter kind of policy ‘… because I am a Director and the only other people who do work for Phoenix are family members’.  From the first week of September 2002, Phoenix was contracted by Bakkante to clean the amenities sheds, and to undertake other general clean-up work, at the subject building site in Saunders Street Pyrmont, which cleaning tasks involved about two hours work on each of three days per week, for which Phoenix was paid by Bakkante on a monthly basis.  Mr de los Reyes physically carried out that work for Phoenix, the status of Phoenix being at all times that of an independent contractor. 

63                  Controversy between Bakkante and the Union, in relation to Mr de los Reyes’ presence on the site, at least of any significance, did not appear to arise until about 20 November 2002, when Mr de los Reyes entered upon full time construction-type work for Bakkante at the Clifton Apartments site, instead of the part time cleaning work at the site undertaken by him for Phoenix, the latter work having ceased to be required by Bakkante.  That construction-type work was undertaken by Mr de los Reyes as an employee directly of Bakkante, as was subsequently recorded in Bakkante’s wages book, income tax instalments being deducted from his wages.  The construction work so undertaken by Mr de los Reyes was in the nature of general labouring, in relation to which Mr Zoratto first ‘arranged for him to go to a green card course’.  The recruitment by Bakkante of Mr de los Reyes to full time employment on the construction site quickly led to disputation between Bakkante and the Union.  Mr de los Reyes was not then a member of the Union, and did not become a member until after the contentious events which are recorded hereafter in these reasons for judgment. 

64                  Mr de los Reyes said that he was approached by Mr Blevin on the construction site during the first day of his commencement of full time construction type work for Bakkante as an employee of Bakkante.  On that occasion, Mr de los Reyes claimed that Mr Blevin prevented him from operating the Alimack hoist, ostensibly on safety grounds, Mr Blevin saying to him in the presence of another Bakkante employee, whom Mr de los Reyes did not identify by name, ‘He hasn’t got any papers’.  Mr de los Reyes did not again operate the Alimack hoist until after the conclusion of the ensuing dispute between the Union and Bakkante involving Mr de los Reyes.  Later on that day, Mr de los Reyes further testified that whilst he was alone on the building site, Mr Blevin told him ‘You have to join the union before you can work here’, and further ‘I’ll give you five days to think about it’, in the latter instance after Mr de los Reyes told Mr Blevin ‘I don’t want to join the union’.

65                  The next occasion of confrontation initiated by Mr Blevin was said by Mr de los Reyes to have occurred on the construction site only ‘a couple of days later’, when both of them were again alone.  Mr de los Reyes claimed that in response to his informing Mr Blevin ‘I told you, I am not going to join the union’, Mr Blevin had replied ‘Listen I have done you a favour.  I allowed you to work here on ABN and now you should do me a favour and join the union’.  That was apparently a reference to Mr de los Reyes’ site clean-up engagement.  Mr Blevin described the suggestion that he made that remark as ‘complete rubbish’.  The reference to ‘ABN’ was of course to an Australian Business Number – the Australian Tax Office system put in place for independent contractors, as distinct from the income tax instalment system applicable to salaried employees.  Four days later, a similar conversation was said by Mr de los Reyes to have again occurred between the two of them, when in answer to Mr Blevin’s question ‘have you decided yet?’, Mr de los Reyes replied ‘Yes, I am not going to join it’ (ie the Union).  That reference to four days, I would observe from other evidence as to the timing of those events, would seem to have been an overstatement.  The asking of Mr de los Reyes by Mr Blevin on three successive occasions to join the Union was adhered to by Mr de los Reyes under cross-examination. 

66                  A construction worker Amir Osmankerim (‘Mr Osmankerim’), who had been employed at the Pyrmont site, originally by Lecan, and subsequently by Bakkante, provided affidavit evidence for the applicant.  He recalled an occasion in November 2002, when he heard Mr Blevin tell Mr Yee that Mr de los Reyes ‘… can’t operate the Alimack without a ticket’, and when Mr Yee thereupon claimed ‘he can operate with a log book’, Mr Blevin is said to have responded ‘I don’t care, get somebody with a ticket’.  Obtaining a ‘ticket’ implied of course becoming a member of the Union.  Mr Blevin for his part admitted to raising an issue with Mr Yee as to Mr de los Reyes ‘not having a ticket’, but otherwise denied participation in any such dialogue.  Mr Osmankerim next testified by affidavit as to hearing a conversation between Mr Yee and Mr Blevin, a few days later, concerning Mr de los Reyes when Mr Blevin said ‘Rodney [referring thereby to Mr de los Reyes] has to be a union member’, to which Mr Yee was said to have replied ‘The bloke does not want to join the union.  That is his choice’.  That reference to ‘a few days later’ would again appear to have been an overstatement, based on the objective evidence.  Mr Osmankerim recorded Mr Blevin’s rejoinder as follows: ‘I don’t care.  He has to join the union.  I don’t care whether it is you or him.  I am not going to argue about this’.  Mr Osmankerim further testified to hearing Mr Blevin saying to Mr de los Reyes ‘not long after’: ‘Everyone in Bakkante Constructions are union members and you have to join the union too, seeing you are part of the team’, and that when he (ie Mr Osmankerim) intruded and said to Mr Blevin ‘Alan, you are not forcing him to do something he doesn’t want to do are you?’, Mr Blevin was said by Mr Osmankerim to have responded ‘No, no no.  I am just giving him the union’s view of what we fought for’.  (Mr Blevin for his part denied that any such conversations, as related by Mr Osmankerim, occurred at all).  When Mr Blevin thereafter walked away from the two of them, Mr de los Reyes was said by Mr Osmankerim to have confided to him ‘He is hassling me to join the union again’.

67                  I should interpolate at this point to record that when Mr Osmankerim entered the witness box, he volunteered to the Court that he was ‘forced’ to make his affidavit by ‘Bakkante Constructions which was my employer at the time’; he then testified however that ‘… most of the affidavits (sic) is correct…’; moreover when I asked him ‘… is there anything which is not truthful?’, he answered ‘No, the thing here is truthful, your Honour’, referring thereby to his affidavit; under cross-examination by reference further to the content of his affidavit generally, Mr Osmankerim affirmed ‘They were my words.  Yes, these were my words at the time’.  In any event, he agreed under cross-examination that Mr Blevin told him ‘something like “Bakkante is paying us union EBA rates”’, and further that ‘… Mr de los Reyes should join the CFMEU because he would be receiving CFMEU negotiated rates and conditions’.  Evidence given by Mr Osmankerim as to subsequent events which he witnessed is later recorded in these reasons.  I would conclude, assisted partly by his evident detachment from the heat of this contest, that his evidence should be accepted as truthfully given, and his recall as tending to accuracy. 

68                  I have earlier identified the Bakkante site manager Mr Zoratto, who reported to Mr Yee.  When Mr Zoratto was informed by Mr Yee that Mr de los Reyes was seeking more working time than his limited part time involvement in cleaning up the construction site, Mr Zoratto had arranged for him ‘to go to a green card course’.  When Mr de los Reyes started to participate in actual construction work on the Clifton Apartments site later in November 2002, as a direct full time employee of Bakkante, Mr Zoratto testified that Mr Blevin came onto the site office a few days later, where he was conversing with Mr Ben Yee, and demanded of them as follows:

‘Rodney can’t work on the site.  He can’t work on an ABN.  Where are his insurances?  I want to see his wages books.’

When Mr Yee was said by Mr Zoratto to have responded ‘He is on our payroll’, Mr Zoratto further testified that Mr Blevin demanded: ‘… I want him off the job’.  Mr Zoratto said that he and Mr Yee did not bother telling Mr de los Reyes what Mr Blevin had so demanded, because to Mr Zoratto’s understanding, Mr de los Reyes ‘had no need to present anything beyond his green card’.  Mr Zoratto further testified that he had earlier heard Mr Blevin inform Mr Yee to the effect ‘I’ve got a mate whose (sic) out of work and needs the job.  He’s got all the tickets needed’.

69                  Mr Zoratto’s affidavit next spoke of the occurrence of visits to the site office by both Mr McGahan and Mr Blevin, and of their demands to be allowed to inspect Mr de los Reyes’ so-called ‘wage books and his insurances’ and to show them Mr de los Reyes’ ‘books’, and of Mr Zoratto’s assertions in response to the effect that Mr de los Reyes had ceased to be employed on the taxation basis of an ABN, and was by then being paid wages as part of Bakkante’s payroll of employees.  Mr Zoratto testified to later repeating that assertion during ‘one morning [when] I was called across to the coffee shop’, where he saw Mr Yee in conversation with Messrs McGahan, Blevin and Glass.  On that occasion he recalled Mr McGahan saying to Mr Yee ‘You can’t have subbies on site working on ABN’, and further that Mr de los Reyes was not to work on the site until he produced his workers compensation, public liability insurance policy and wages books.  Mr McGahan was said by Mr Zoratto to have then requested that Mr de los Reyes come across to the coffee shop meeting then in progress. 

70                  Mr Zoratto thereafter recounted what occurred after Mr de los Reyes arrived at the coffee shop gathering.  In response to Mr McGahan’s initial questions to Mr de los Reyes, Mr Zoratto testified to hearing Mr de los Reyes assert that he was working on the payroll of Bakkante, and was not working ‘on ABN’, and to hearing Mr McGahan demand to see Mr de the los Reyes’ ‘books’, allegedly in order for the Union ‘to see if you are receiving all your entitlements’, and to further hearing Mr Yee said ‘He is not working on an ABN’ and ‘He is on our payroll’, and ‘You do not have to see his books’.  I interpolate to point out that as will later appear, Mr de los Reyes had not by that time reached the first working day when his initial payment of weekly wages would become actually payable, so that it would seem, as at this point in time, Mr Yee would have had no records to produce, one way or the other.  Yet it was on the other hand enigmatic behaviour of Messrs Blevin and McGahan to have been making such demands upon Mr Yee at a time when evidently, at least so far as Mr Blevin would have been aware, the time for payment of Mr de los Reyes’ first remunerative as a construction employee had not yet crystallised.  At that stage, Mr McGahan was said by Mr Zoratto to have produced a white card which Mr Zoratto recognised to be a CFMEU application for membership form.  Mr Zoratto said he heard Mr de los Reyes ask Mr McGahan whether it was compulsory to join the Union, to which Mr McGahan answered ‘No’, and Mr de los Reyes thereupon responding ‘Well therefore I am not joining’. 

71                  Mr Zoratto’s affidavit narrative next followed to the effect that Mr de los Reyes continued to work on the Bakkante/Clifton Apartments site full time as a labourer, though at one stage, he and Mr Yee asked Mr de los Reyes to train as a hoist driver.  In that context, Mr Zoratto recalled that Mr Blevin entered the site office and asserted that Mr de los Reyes ‘… can’t work the hoist because he is not ticketed’, to which Mr Zoratto replied ‘I want him working on a logbook – that is the workcover requirement’, following which Mr Blevin was said by Mr Zoratto to have left the site office, and Mr Osmankerim to have thereafter ‘signed off’ on Mr de los Reyes’ logbook and supervised his training as a hoist driver.

72                  Mr Zoratto’s affidavit account narrated that Mr Blevin thereafter continued to demand that Mr de los Reyes join the Union.  In early December 2002, according to Mr Zoratto’s affidavit testimony, he witnessed a conversation between Mr Blevin and Mr Yee in the site office where he and Mr Yee were then working, when Mr Blevin said words to the effect: ‘I want Rodney [ie Mr de los Reyes] in the union’; and Mr Yee replied ‘He doesn’t have to join if he doesn’t want to.  We will not force him to join.  It is up to him if he wants to join or not’; Mr Blevin was said by Mr Zoratto to have rejoined ‘I suggest he joins the union’.  Mr Zoratto further testified that a few days later, he overheard a further conversation between Mr Yee and Mr Blevin, when Mr Blevin said: ‘Give Rodney the money for union membership.  If he hasn’t got the money, you pay for it, and Mr Yee replied ‘If he doesn’t want to join, he doesn’t have to.’  Whilst I would accept that Mr Zoratto’s evidence, which I have recorded above, was truthfully given, the independent evidence indicates that his recall of the timing of the events which he narrated occurred over a narrower period of time than he described in his affidavit; thus his timing estimate above of ‘early December’ does not accord with the objective evidence. 

73                  Later in mid December 2002, Mr Zoratto testified in his affidavit that he was in the site office with Mr Yee when Mr Blevin walked in and said: ‘Hey Ben, where is the cheque for Rodney?’, to which Mr Yee responded ‘Here it is’, and passed a cheque to Mr Blevin, who then left the office.  Following that conversation, Mr Zoratto said that he was unaware of any more issues being raised by any Union representatives involving Mr de los Reyes, and in particular, there was no request on their part that there be produced for their inspection Mr de los Reyes’ wages books or insurance records.  There does not appear to have been any contradiction led from the respondents as to the significant turn of events thus described by Mr Zoratto. 

74                  Mr Zoratto was not cross-examined at any considerable length upon his affidavit.  He confirmed under cross-examination his account of the coffee shop conversation, and said that the CFMEU membership card handed by Mr McGahan to Mr de los Reyes, in the course of that conversation, was ‘approximately 75mm wide times 150mm in height’.  It was also put to Mr Zoratto in cross-examination, briefly in relation to his account of the coffee shop conversation, ‘… that didn’t occur’, to which Mr Zoratto replied ‘No it did occur’.  Nothing of significance contained in his evidence on cross-examination led me to any conclusion otherwise than that Mr Zoratto was truthful in both his affidavit and viva voce evidence, and essentially accurate in its material respects. 

75                  The principal affidavit evidence tendered by the applicant was that of Mr Yee.  Some of the background testimony contained in his principal affidavit of 15 May 2003 has been already recorded.  Mr Yee spoke of the request made by Mr McGahan, in the presence of Mr Glass, to take over the on-site employment of Mr Blevin, who was said by Mr McGahan to have ‘just been laid off from Fletchers at the Global Switch job’, being a request which, according Mr Yee, was fulfilled by Bakkante on 25 July 2002 somewhat reluctantly and under a measure of pressure.  During the first week of his employment by Bakkante, Mr Blevin was apparently elected as the Union’s site delegate, and according to Mr Blevin, was so elected by site employees and subcontractors in preference to Mr Osmankerim.  He spoke however of incidents of friction thereafter arising in relation for instance to Mr Blevin ‘taking a lot of time off for union delegate’s meetings’, and to Mr Blevin’s request for constant Saturday work.  Another instance of early controversy involving Bakkante and the Union related to the demand of Messrs Blevin, Glass and McGahan upon Bakkante, said by Mr Yee to have been made on 9 October 2002, that in the event of redundancy of workmen engaged on the Bakkante site arising out of the financial difficulties encountered by Bakkante, albeit caused by Lecan’s financial collapse, payment of eight weeks’ redundancy payments was nevertheless required by the Union for workers engaged on the site, who by this time, it would seem, had become virtually all members of the Union.  I interpolate to record that Mr Blevin for his part denied causing any friction with Bakkante’s employees, including Mr Zoratto, during the earlier times of his employment, and asserted that he merely conducted a number of discussions relating to occupational health and safety issues, and the obligation of subcontractors to make superannuation payments in respect of their employees.  However my assessment of the events which happened would render that testimony on his part to be a substantial understatement of the nature and incidents of his on-site conduct. 

76                  There can be little doubt that the employment by Bakkante of Mr de los Reyes on full time general labouring duties in relation to the construction site, which appears to have commenced on 20 November 2002, triggered substantial controversy between Mr Blevin and Mr Yee, which ultimately gave rise to the circumstances critically falling for determination.  There occurred a meeting on site, late on that critical day, between Mr Yee, Mr de los Reyes and Mr Osmankerim with Mr Blevin, when Mr Yee informed Mr Blevin of that intended course, which would be by way of replacement of the existing part time engagement of Mr de los Reyes on site cleaning-up, the latter form of engagement having been of course the subject of arrangements between Bakkante and Mr de los Reyes’ family company Phoenix.  The following on-site conversation was said by Mr Yee to have occurred on that occasion between he, Mr Osmankerim and Mr Blevin:

Mr Yee:           ‘We have decided to hire Rodney to help us with labour on the site.  He has done his green card course and he will be going on the books of the company’.

Mr Blevin:        ‘You are not employing him under ABN are you?’

(By that question, Mr Yee said he understood Mr Blevin to be asking whether Bakkante was employing or intending to employ Mr de los Reyes as an independent contractor using his own ABN for income tax purposes; in that regard, although independent contractors were constitutionally eligible to become members of the Union, I think that it may be inferred that at least in relation to the Clifton Apartments Development, the greater proportion of Union members were employees). 

Mr Yee:           ‘No.  He will be on wages.’

Mr Blevin:        ‘I am sick and tired of being discriminated against.’

Mr Yee:           ‘What do you mean?’

Mr Blevin:        ‘It is obvious that you are ignoring my requests about this friend of mine that I have asked you to employ.’

Mr Yee said he understood the latter observation on Mr Blevin’s part to be a reference to approaches Mr Blevin had previously made to Mr Yee for Bakkante to hire a friend of his named Chris Heggarty.  There is no doubt, incidentally, that Mr Yee accurately stated above ‘He will be on wages’; attached to Mr Glass’s affidavit was a tax file number declaration bearing the signature of Mr de los Reyes, and immediately below that signature, the date 20 November 2002.  The conversation on that occasion continued, according to Mr Yee, as follows:

Mr Yee:                  ‘No.  I have known Rodney for a long time and he is looking for work, so I hired him.  I would rather I hire somebody I have known for a long time rather than someone I don’t know.

(The reference to ‘Rodney’ was of course to Mr de los Reyes)

Mr Blevin:               ‘Well I still feel that I am being discriminated against and I don’t think that Rodney should come to work here because he is not a ticketed hoist driver.  Only people with proper tickets are allowed on this job and that is the rule.’

Mr Yee:                  ‘Well Rodney can just go into general labour then.’

Mr Osmankerim:     ‘Show me in what rule book does it say that a non-ticketed worker cannot learn to drive a hoist on a log-book.’

Mr Blevin:               ‘I will talk to Joe McGahan about this and we will see.  If this is the way that you want to run the site I can make life for you real hard.  I will ask for all the requirements to comply with the OH&S Regulations and that means material data sheets, safe work method statements for every single sub-contractor.  You won’t be able to move until all this paperwork is in order.’

Mr Yee:                  ‘Well if that’s the way it is going to be, then that’s the way it will be, but I can’t understand what your problem is.’

77                  On the morning of 26 November 2002, Mr Yee testified as to the following conversation taking place between himself, Mr Zoratto and Mr Blevin in the construction site office:

Mr Blevin:               ‘Rodney has to join the union.  Only union members are allowed on this site.’

Mr Yee:                  ‘No.  If he doesn’t want to join the union, which I think he has told you, then it is his choice not to join.’

Mr Blevin:               ‘What is the problem.  Why won’t he join the union?’

Mr Yee:                  ‘I don’t know.  It may have something to do with the $220 he would have to pay you to join.’

Mr Blevin:               ‘Well he is not going to get the pay and work conditions of the union and not pay for it.  I don’t care if you pay for it or he pays for it but if he doesn’t join the union by Monday there is going to be trouble.

                               And the other issue is you are not to hire any more body hire labour because it is taking jobs away from prospective workers.’

Mr Yee:                  ‘Well I am not going to force him to join the union if he doesn’t want to join the union.’

Mr Blevin:               ‘Well, have it your way.’

On the same day, Mr Yee said that he recorded on a form provided by the Masters Builders Association headed ‘Site Bans/Limitations/Threats of Industrial Action/Intimidation’ a report of that encounter with Mr Blevin, which included the following (inter alia):

‘If Rodney did not join the Union there would be trouble within 5 days…’.

However Mr Blevin said in cross-examination that in the face of Mr de los Reyes’ refusal to join the Union, ‘… I wasn’t going to pursue it any further’; he characterised as ‘nonsense, complete and utter rubbish’ the suggestion that he said to Mr Yee if Mr de los Reyes did not join the union, there would be ‘trouble’.

78                  Interpolating Mr Yee’s affidavit account with further reference to Mr Zoratto’s account, Mr Zoratto recalled in his affidavit evidence that Mr de los Reyes did not re-attend the Clifton Apartments building site ‘for a few days’, and further that when he did finally report for work, both Mr Blevin and Mr McGahan came into the site office, and in Mr Zoratto’s presence, Mr McGahan asked ‘Why is he working on an ABN?’ to which Mr Yee responded ‘he is not’.  Mr McGahan then said ‘I want to see his wage books and his insurances’, to which Mr Yee further responded ‘What for? He is on our payroll’.  Mr McGahan was recalled by Mr Zoratto to have repeated his demands for ‘Rodney’s insurances and wages books’, saying, according to Mr Zoratto’s recall, ‘He is not to work on the job until he shows his books’, and Mr Yee in turn repetitively saying, according further to Mr Zoratto, ‘He is on our payroll.  He isn’t on ABN.  He was only on ABN when he worked one day a week as a cleaner’.  Once again, Mr Zoratto’s placement as to the timing of these controversial events was significantly astray, but my judgment is that there was an essential honesty in his recall of critical events, the inaccuracy in his recall residing in the timing and sequence.  An in-house accountant for Bakkante (Mr Gunawan) produced by accompanying affidavit the timesheets of Bakkante related to Mr de los Reyes, which disclosed that commencing from 27 November 2002, Bakkante made income tax deductions from each of the weekly payments of wages made to Mr de los Reyes, and that those weekly payments, which were calculated starting from 20 November 2002, included a base rate plus overtime plus site allowances, PAYE Withholding and Superannuation.  Thus 20 November 2002 appears to have been the starting day for Mr de los Reyes’ undertaking of construction-type work on the Bakkante building site. 

79                  Mr Zoratto’s affidavit evidence continued to the effect that he recalled an occasion when he attended the coffee shop located near the Clifton Apartments worksite after he being so requested, and there met with Messrs McGahan, Glass and Blevin and also with Mr Yee.  That was obviously the critical coffee shop meeting which occurred on the day which was identified elsewhere in the evidence as having occurred on 25 November 2002.  Mr Zoratto recalled Mr Blevin repeatedly requesting on that occasion ‘the same thing’, namely ‘He is not to work on site until he produces his workers compensation, public liability and wages books’, and Mr McGahan requesting Mr Yee that Mr de los Reyes attend that meeting in the coffee shop.

80                  Mr Zoratto’s affidavit evidence of the dialogue in the coffee shop, following upon Mr de los Reyes joining the discussion already in train between Mr Yee and Mr Zoratto with Mr McGahan and Mr Blevin, continued as follows:

Mr McGahan (to Mr de los Reyes):      ‘Are you on ABN or on the payroll?’

Mr de los Reyes:     ‘Payroll.’

Mr McGahan:         ‘Do you own your own company?’

Mr de los Reyes:     ‘Yes’.

Mr McGahan:         ‘We want to see your books.’

Mr de los Reyes:     ‘What for?’

Mr McGahan:         ‘We need to see if you are receiving all your entitlements.’

Mr de los Reyes:     ‘I have not got them here.  They are at home.  Why do you want to see them?  I am only working for Ben.’

Mr Yee:                  ‘He is not working on an ABN.  He is on our payroll.  You do not have to see his books.’

Of course based on the evidence I have earlier summarised, whilst it was correct for Mr Yee to have said to Mr McGahan that Mr de los Reyes was ‘on our payroll’, his first week’s pay did not fall due until two days later on 27 November 2002.  Nevertheless it is not without adverse significance to the respondents’ case that the respondents exerted pressure relevantly upon Mr Yee and Mr de los Reyes, without awaiting production of Bakkante’s employment records relating to what would be his first week’s remuneration payment.  Consistently with that observation, at that stage of this critical dialogue in the coffee shop, Mr Zoratto said that Mr McGahan produced a white card, which Mr Zoratto recognised to be a CFMEU application card, and pushed the card across the table to Mr de los Reyes, and according to Mr Zoratto,

Mr McGahan said:       ‘Here you are.  Fill this out.’

Mr de los Reyes looked at it and said:       ‘What is this?’

Then Mr de los Reyes read the card and asked:         ‘Is it compulsory to join the union?’

Mr McGahan replied:          ‘No.’

Mr de los Reyes said:          ‘Well therefore I am not joining.’

According to Mr Zoratto, Mr McGahan thereupon said nothing, and Mr de los Reyes returned to the construction site; Mr Zoratto also testified that during the conversation Mr Blevin remained silent, which appears to have been common grounds. 

81                  Mr Zoratto’s affidavit account of both on-site and coffee shop conversations, which I have recorded, were not directly challenged in cross-examination by way of reference to contradicting affidavit evidence of Messrs Blevin, McGahan or Glass, save explicitly as to Mr McGahan’s handing to Mr de los Reyes in the coffee shop a white card containing a form of application to join the Union, which was put to Mr Zoratto as having never happened.  The essence of the remainder of his cross-examination related to peripheral matters.  I encountered no basis within the scope of Mr Zoratto’s cross-examination to doubt the essential veracity of his affidavit evidence, my reservation being confined to his estimates of timing of events in which he participated, which was substantially astray in the aspects I have identified. 

82                  Mr de los Reyes’ affidavit version of the dialogue of the coffee shop meeting, after he joined the meeting, and of what thereafter ensued, will next be recorded.  Mr de los Reyes said that the meeting occurred on or about the fifth day after he started working full time for Bakkante, and that Mr Zoratto had asked him to attend the meeting whilst he was working on the construction site.  When Mr de los Reyes arrived at the coffee shop in company with Mr Zoratto, already present to his recall were Mr Blevin, Mr Yee, and another person whom he was able to later identify as Mr McGahan.  Mr de los Reyes testified as to the following conversation between himself and Mr McGahan, in the presence of the other attendees identified above:

Mr McGahan:            ‘So aside from working as a cleaner you want to work in the construction industry?’

Mr de los Reyes:       ‘Yes’.

Mr McGahan:            ‘You know the rules in the building industry.  You have to join the union’.

Mr de los Reyes:       ‘Listen, I am in the union myself.  I don’t think it is necessary to join another union’. 

 

Mr de los Reyes thereupon referred to his membership of the ‘Miscellaneous Workers Union’ (his MUW union ticket in that regard was exhibited in evidence). 

Mr McGahan:            ‘Your union is different.  You have nothing to do with that union in the building industry’.

Mr de los Reyes:       ‘I don’t think it is necessary to join your union’.

Mr McGahan:            ‘If you want to work in the construction industry you will have to join the union’.

                                 …

Mr de los Reyes:       ‘Is it compulsory to join the union?’

Mr McGahan:            ‘No’.

Mr de los Reyes:       ‘Well I don’t want to join the union if it is not compulsory’.

Mr de los Reyes said that Mr McGahan thereafter kept quiet for about a minute, and then said:

                                 ‘Well if this is going to be the case, then the axe is going to go down’.

According to Mr de los Reyes, Mr McGahan simultaneously gestured with his right hand in a downward chopping movement, and the conversation ended abruptly; Mr de los Reyes added that Mr Blevin did not ‘say a word’ during the above conversation conducted by Mr McGahan.

83                  The cross-examination of Mr de los Reyes upon the affidavit material I have set out above revealed to the Court that he did not have an advanced speaking command of the English language, though he did not seek the assistance of an interpreter.  He was controversially questioned as to his insurance and wage payment practices, the Phoenix family cleaning business, and his credibility generally.  He repeated that Phoenix had held public risk insurance cover, but not workers compensation insurance, because the only employees of Phoenix were himself, his wife and child.  That cover was for $5 million, and was verified by documentary evidence (Exhibit R2).  Moreover he agreed that Phoenix did not deduct superannuation in respect of the salaries paid or credited to the three family members involved.  He was then cross-examined at some length about his operation of the Alimack hoist, but he maintained his affidavit evidence to the effect that he was initially prevented by Mr Blevin, from operating the hoist until after he joined the Union.  Moreover he denied that Mr Blevin had told him that if he joined the Union, he would receive CFMEU salary rates, in lieu of the EBA salary rates being paid by Bakkante.

84                  Of more direct relevance to the critical issue arising in the proceedings, Mr de los Reyes adhered unequivocally to his evidence that he had said to Mr Blevin ‘I don’t want to join the union’, in response to Mr Blevin having said more than once ‘you have to… join the union’.  He maintained that such demand was made by Mr Blevin ‘in my first week as an employee as a construction worker… at the construction site’.  He added in cross-examination that when the same demand was made the next day, Mr Blevin said to him ‘I’ll give you five days to think about it’.  He further repeated under cross-examination that Mr Blevin said to him ‘I have allowed you to work with your ABN.  I’ve done you a favour, so you must do me a favour and join the union.’  All that conversation material was said to have occurred prior to the coffee shop meeting.  It should be noted the reference to Mr de los Reyes’ use of an ABN number was somewhat puzzling, since the Phoenix records were more consistent with group tax deductions having been made by Phoenix as the process of its income tax accounting (post).  Those taxation records appear to have been made by a tax consultant. 

85                  Mr de los Reyes was then cross-examined at length in relation to his account of the critical coffee shop meeting.  In answer to Mr McGahan’s questions about Phoenix’s insurances, Mr de los Reyes said he repeated what he had earlier told Mr Blevin.  He next said that Mr McGahan asked him the same questions he had already reproduced in his affidavit concerning his working in the construction industry.  It was squarely put to Mr de loss Reyes that his account as to what was asked of him by Mr McGahan at the coffee shop meeting, concerning the matters I have outlined, was incorrect, but Mr de los Reyes unequivocally maintained the truth of his account.  Set out below is an exemplification of parts of the cross-examination, and the responses, of Mr de los Reyes, and in particular what Mr de los Reyes repeated as to the critical culminating content of the coffee shop conversations:

‘What was the conversation you say happened about the union, can you remember, can you tell the court what you say happened?---Him asking me to join the union.

What words did he use?---He said, if you want to work in the building industry you have to join the union.

And did he say anything else?---He said, I ask him if it is compulsory to join the union.

And what did he say to that?---He said no, it’s not compulsory.

And that was the end of the discussion, was it?---No, there’s some more he said to me, he said to me that still you have to join the union, if it’s not compulsory, I would have to join the union.

So what he was saying to you was that he’d like you to join the union but it wasn’t compulsory, is that the case?---Yes.

And after all of that did he say or do anything else?---Yes.

Yes, what did he say or do?---You’re not going to join the union then the axe is going to go down with his hands in motion like this.

The axe?---The axe is going to go down with as I understood that I can’t work in there.

Well, just stop for a moment.  He said the axe is going to go down?---Yes, as I understood with his hands in motion.

Don’t tell us what you understood, just tell us what you saw or heard?---He put his hands down like that and he said the axe is to go down.

…

Don’t tell us what you understood, just tell us what he said?---I can’t work in the industry.

Can I stop you there.  Just tell us what you saw; his hand came down like an axe, did it?---That’s right.

And this is after you had said to him, is it compulsory to join the union and he said no?---That’s right.

…

Can I just put this to you that it just never happened?---It did happen.’

86                  Counsel for the respondents sought to further test the veracity of Mr de los Reyes’ account of the coffee shop meeting; set out below are two extracts of the further cross-examination of Mr de los Reyes:

‘I just want to understand this part of it.  Was this because you were so scared of Mr Joe McGahan or was it because of some other reason?---That’s not the reason.  I’m scared that I might create trouble if someone is going to approach me again about joining the union.

You were scared that you might create trouble?---That’s right because I might lose my cool because they keep on coming to me asking me joining the union.

I see.  So your concern was that you might react to a request to join the union by somebody?---That’s right.

You didn’t have any conversation with anybody else, this was just a conclusion that you reached in your own mind, was it?---No, I didn’t have any conversation with other people.

And no one suggested that you not come back to work, did they?---No.

…

And you say you stayed away for 4 days from work, you were not paid for the four days, this is presumably because you were so scared that you might do something to somebody who asked you to join the union, was that the case?---That is, yes.

You were too scared to go back to the site, weren’t you?---Exactly.

…’

87                  Mr de los Reyes next testified in his affidavit, consistently with his later cross-examination set out above, that he did not go back to the construction site on the next day following the coffee shop meeting, partly because he felt he was being intimidated by Mr Blevin and Mr McGahan, and partly because if he went back to work, he ‘would be causing Bakkante trouble’.  On that next day however, he said he ‘bumped into’ Mr Yee, who said to him ‘Don’t you want to go back to work?’  Mr de los Reyes’ reply was ‘Ben, I don’t want to put you in trouble at work.  If Alan comes back to me the discussion might get worse’.  After that exchange was virtually repeated, Mr de los Reyes further said to Mr Yee ‘… I am worried about Alan’, presumably thereby referring to Mr Blevin.  Mr Yee then offered to Mr de los Ryes to pay the union fees for Mr de los Reyes, to which the response of Mr de los Reyes was ‘that wasn’t the point’.

88                  Under cross-examination on that subject of his return to the Bakkante site for work, Mr de los Reyes further said in his cross-examination:

‘I just come back to work at the request of Mr Ben Yee… As I said [Mr Yee] just asked me to go back to work.  To return to work because Mr Blevin wasn’t there you will not be in trouble.’

89                  In the course of re-examination as to his reasons for returning to work, following the events and circumstances which I have recorded in these reasons, Mr de los Reyes provided the following testimony (inter alia):

‘When you said in your evidence a little while ago to my friend, Mr Latham, that you had a conversation with Mr Yee about going back to work because you needed the money and you said that that was on Monday night?---That’s right.

What was the basis upon which you said that it was Monday night?  Was it by reference to the time that you started work or was it by reference to something else?---By reference to start to work and he said to me, Just to go work and join the union.  That’s what he said to me.

Was that conversation the night before you commenced work?---That’s right, the night before.’

In summary, I think that Mr de los Reyes maintained, in the course of his viva voce evidence, the essence of his affidavit evidence, and did so to my observation in an essentially credible way.

90                  Mr Yee’s affidavit evidence concerning the critical coffee shop meeting was as follows, his initial account below occurring prior to Mr de los Reyes joining that meeting:

Mr McGahan:         ‘I understand you have hired somebody… Now I understand he used to clean the toilets and amenities on the site.’

Mr Yee:                  ‘Yes.  I informed Alan and he is aware of that.  He would spend two hours, twice a week cleaning the amenities.’

Mr McGahan:         ‘And you were hiring him under an ABN.’

Mr Yee:                  ‘Yes.  He has his own cleaning company.’

Mr McGahan:         ‘Is he a Director of the cleaning company.’

Mr Yee:                  ‘Yes.  I suppose so.  I have not checked.’

Mr McGahan:         ‘You want me to do a search?’

Mr Yee:                  ‘Joe, I honestly don’t know the affairs of his company.’

Mr McGahan:         ‘Well have you checked whether he has appropriate workers compensation and public liability.’

Mr Yee:                  ‘No.  I assume that those matters have been dealt with by Rodney.’

Mr McGahan:         ‘Does his company hire any employees.’

Mr Yee:                  ‘I don’t know.  You have to ask him.’

Mr McGahan:         ‘Can you ask him to come over to the coffee shop?’

Mr Yee:                  ‘Yes.  I’ll call him over.’

Mr Yee’s above reference to ‘Rodney’ was of course to Mr de los Reyes.

91                  Several minutes later, according to Mr Yee, Mr de los Reyes joined the conversation in the coffee shop, and the following was said:

Mr McGahan:         ‘Are you a Director of your company.’

Mr de los Reyes:     ‘Yes.’

Mr McGahan:         ‘Do you hire any employees?’

Mr de los Reyes:     ‘No.  Only my wife and son help me sometimes.’

Mr McGahan:         ‘They get a wage do they not?’

Mr de los Reyes:     ‘Yes.  I suppose so.

Mr McGahan:         ‘Well we would like to see your workers compensation, public liability and wages books for the past six months.’

Mr de los Reyes:     ‘Oh, I’ll have to talk to my accountant about that.’

I should interpolate to record that Exhibit R1 disclosed that for the period from 2 July 2002 to May 2003 (both months inclusive), Phoenix made payments of wages to Mr de los Reyes at the gross monthly wage of $833,33 less income tax, and to each of Elizabeth de los Reyes and Eduardo de los Reyes of $667.67 less income tax.

92                  Thereupon Mr McGahan produced a white form, Mr Yee recognising it to be a CFMEU union membership application, and the conversation in the coffee shop continued as follows, according to Mr Yee’s affidavit evidence:

Mr McGahan:              ‘Why don’t you join the union?’

Mr de los Reyes:          ‘I am already in another union and I have been there before.  I don’t really want to join the union.’

Mr McGahan:               ‘OK, if you don’t want to join the union.  That is fine.  That is all, thanks.  I have finished with you.’

Mr de loss Reyes then left the coffee shop, and Mr Yee deposed further that Mr McGahan turned to him and said:

‘He is not to work on the site until he produces his workers compensation, public liability and wages books.  And there is no negotiation on this.’

Mr Yee testified that no such request had been made by Mr McGahan or Mr Blevin during the time Mr de los Reyes had been engaged as a part-time cleaner on the Clifton Apartments site.

93                  Mr Yee continued his narrative of the coffee shop conversations, in the ensuing absence of Mr de los Reyes, as follows:

Mr Yee:                  ‘But I am not hiring him as a company.  He is a direct employee on wages covered by our workers compensation and I have the forms to prove it.’

Mr McGahan:         ‘I am not interested in that.  He was working as a company cleaning the amenities.  We want to see all his documentation.’

Mr Yee:                  ‘Yes, he was working as a company but now he is on wages.  What is the problem?’

Mr McGahan:         ‘I am not going to have an argument about this with you Ben.  Until he shows us all the documentation he is not to work on the site and that’s that.’

Mr Yee:                  ‘I’ll have to talk to Rodney and see about his paperwork.’

Messrs Yee and Zoratto thereafter departed from the coffee shop meeting and returned to the construction site office.  It is readily apparent from the documentary records of Bakkante in evidence that computed from and including 27 November 2002, being Mr de los Reyes’ date of commencement of construction work for Bakkante, Mr de los Reyes was paid wages or salary by Bakkante, but as I have already indicated, his first week’s wages from Bakkante were not apparently payable, nor in fact paid, until what appears to have been seven days later on Friday, 29 November 2002.

94                  Subsequently on the same day of the coffee shop meeting at about 2.00pm, according to the further affidavit testimony of Mr Yee, the following conversation occurred between Mr Yee and Mr Blevin, Mr Zoratto being also present (or at least Mr Yee ‘thought so’):

Mr Blevin:               ‘Why isn’t he off site yet?’

Mr Yee:                  ‘Well, I am going to let him complete the day and I will talk to him about his paperwork tonight.’

Mr Blevin:               ‘That isn’t good enough.  You heard what Joe McGahan said.  He is not to work further until he comes up with his paperwork.’

Mr Yee:                  ‘No that is not what Joe McGahan said.’

Mr Blevin:               ‘I am going to call Joe McGahan right now and he is to stop work.’

Mr Yee’s affidavit account continued to the effect that Mr Blevin thereupon stepped outside Mr Yee’s office, and Mr Blevin subsequently returned and requested Mr Yee to telephone Mr McGahan; that telephone call was said by Mr Yee to have been then made by him to Mr McGahan, and according to Mr Yee, the following conversation thereupon took place:

Mr Yee:                  ‘About what we discussed today, Rodney can still work while we are sorting this out can’t he?’

Mr McGahan:         ‘No.  I said he is to stop work.’

Mr Yee:                  ‘Surely not immediately.’

Mr McGahan:         ‘Yes.  Immediately.’

Mr Yee:                  ‘Look Joe, he is on the wages books.  He is not working under ABN anymore so what is the problem?  It is just a technicality.’

Mr McGahan:         He is to stop immediately.  I am not going to have an argument with you about it.’

Mr Yee:                  ‘Joe, the only reason why you are doing this is because he won’t join the union.  Is that it?’

Mr McGahan:         ‘It has nothing to do with the union.  He is not to work on that job.’

Mr Yee:                  ‘Well, I think it stinks that you are doing a bloke out of a job just because he doesn’t want to join the union.’

Mr McGahan:         ‘When he gets the right paperwork, we will see.’

Mr Yee:                  ‘Whatever.’

That telephone conversation between Mr Yee and Mr McGahan, according to Mr Yee’s evidence, then concluded.  I would observe that despite Mr Yee’s assertion that Mr de los Reyes was ‘on the wages books’, the fact was that his first week’s work had not yet been completed, and thus he had not received his first week’s pay.  If Mr Yee’s above account was substantially accurate, it would have been at least extraordinary for Mr McGahan to have demanded that Mr de los Reyes cease work on the site until his ‘paperwork’ was produced for Mr McGahan’s satisfaction, particularly since Phoenix’s on-site cleaning work had previously ceased. 

95                  Later that day, according to Mr Yee’s affidavit evidence, Mr Yee asked Mr de los Reyes ‘about his paper work’, and Mr de los Reyes told him that he had public liability insurance, but not workers compensation insurance.  Mr de los Reyes then said, according to Mr Yee:

Mr de los Reyes:       ‘It looks like I am causing you guys too much trouble on site.  It is best that I not come back.’

Mr Yee:                    ‘I don’t think that you should be scared by these people just because you won’t do what they want you to do.  It is a free country.’

96                  On the following day, which was Friday 29 November 2002, Mr de los Reyes did not report for work at the Clifton Apartments site, for which day he was not paid wages by Bakkante.  Mr Yee deposed in his affidavit that he spoke to Mr de los Reyes about his absence, and that Mr de los Reyes  replied:

‘If I went back to that site who knows what I might do if Alan provoked me further.  I would rather not risk getting into trouble or getting your company into trouble.’

Mr Yee further deposed in his affidavit that he subsequently rang Mr Glass and asked him to attend the building site, so that he could show him that Mr de los Reyes was being paid wages by Bakkante.  Mr Glass came to the site on 4 December 2002, that being the following Wednesday, and therefore about a week or more after Mr de los Reyes had commenced full time construction work for Bakkante.  Mr Yee recounted the following conversation with Mr Glass which then occurred on site between he and Mr Glass:

Mr Yee:           ‘Look if you still want him to join the Union, he is willing to join the Union, and we will pay for his union fees’.

Mr Yee thereupon showed Mr Glass the pay slips and Mr de los Reyes’ tax file declaration; after viewing the same, Mr Glass said, according to Mr Yee:

‘I don’t see any problem with Rodney returning to work.’

If that evidentiary account of Mr Yee is to be accepted, the applicant’s case is thereby enhanced.

97                  Mr Yee’s affidavit evidence continued to the effect that Mr de los Reyes remained absent from work on the Bakkante construction site for the ensuing four days, for which absence he was not paid wages by Bakkante.  Subsequently Mr de los Reyes said to Mr Yee ‘OK,  I need to work.  I will join the union.  I will go back to work next week’.  When Mr de los Reyes returned to the building site, his evidence was that he saw Mr Blevin alone, and filled out an application form to join the Union handed to him by Mr Blevin, and handed it back, though whether to Mr Blevin directly or per medium of Mr Yee is unclear.  The Union’s receipt for dues of $193.63 plus GST dated 9 December 2002, said by Mr de los Reyes to have been paid by Bakkante to the Union, was tendered in evidence, the same purportedly relating to the period of time from 1 October 2002 to 31 March 2003.  The Bakkante cheque butt of 10 December 2002 records that $213 in the aggregate was paid to ‘CFMEU’ for ‘union fees for Rodney’; according to Bakkante’s bank pass sheets, the cheque was duly honoured on 18 December 2002.  Mr de los Reyes testified that thereafter he ‘operated the Alimack on a regular basis on a logbook’, under the supervision of Mr Osmankerim and Mr Blevin, being a machine which was described by Mr Yee, incidentally, as a hoist capable of carrying people as well as equipment.  Significantly, it will be recalled that there was evidence adduced by the applicant to the effect that Mr Blevin had previously intervened to stop Mr de los Reyes operating the Alimack machine on site, soon after he had commenced construction work on the site. 

98                  Mr de los Reyes visited the construction site, according to Mr Yee, ‘sometime’ between 4 and 10 December 2002; on that occasion, Mr Yee deposed that he said to Mr de los Reyes:

‘Look we will pay them the money.  Just join up.  That will keep them happy.’

Mr de los Reyes re-commenced work in the context, according to the applicant’s evidence, of joining the Union, such re-commencement occurring subsequently to so doing.  The following conversation was said by Mr Yee to have occurred between himself and Mr Blevin, after Mr de los Reyes’ indication to him of a willingness to join the Union:

Mr Yee:           ‘I have cleared the issue up with David Glass and Rodney is willing to join the Union now’.

Mr Glass:         ‘OK, I will give him the forms to fill out’.

Mr Yee subsequently handed to Mr Glass the Bakkante cheque for $213.00 for Mr de los Reyes’ union fees, though so it may be inferred, not contemporaneously with the application form being signed by Mr de los Reyes.  Mr Yee testified that there had been no further demands thereafter made by or on behalf of the Union to inspect the wage records of Bakkante relating to Mr de los Reyes, a matter tending to support the applicant’s case, and not put in issue by the respondents. 

99                  Mr Yee was cross-examined at some length in the proceedings, initially about matters not directly related to the applicant’s statutory cause of action, such as the size of the Bakkante development, Lecan’s financial collapse, the existence of unpaid on-site contractors as a consequence of that collapse, proceedings taken at the instance of some unpaid contractors in the Industrial Relations Commission, Mr Yee’s prior inexperience in dealing directly with building subcontractors, and other earlier on-site incidents at least not directly related to the critical issues ultimately falling for resolution.  Mr Yee was also cross-examined in some detail as to Mr de los Reyes’ work on site as a part-time cleaner, that having been prior to the controversial events of his commencement of construction work as a full time employee of Bakkante.

100               When cross-examined in relation to the critical coffee shop meeting, Mr Yee said in response to issues thereby raised by Mr McGahan, relating to times prior to the arrival of Mr de los Reyes later in the course of that meeting, as follows:

(i)         ‘The issue of union membership was brought up virtually immediately’;

(ii)        no reference to ‘an ABN being worked’ was made at the meeting’;

(iii)       no references to the insurances of Mr de los Reyes, or to ‘seeing his wage book’, were made at the meeting;

(iv)       he denied that his version of the coffee shop dialogue was ‘wrong’;

(v)        Mr Glass was not present, to the best of Mr Yee’s recollection;

(vi)       he agreed that Mr McGahan raised ‘concerns’ or ‘questions’ about Mr de los Reyes ‘working through a company’, and ‘complying with workers compensation legislation’, and whether Mr de los Reyes ‘had public liability insurance’;

(vii)      he did not recall whether ‘issues in relation to wages to prove whether [Mr de los Reyes] was an employee’ were raised; and

(viii)      he agreed being asked whether Mr de los Reyes was a director of ‘the cleaning company’.

101               Moreover when cross-examined, in effect as to his adherence generally to what he recorded by affidavit as to what occurred after Mr de los Reyes’ joining the coffee shop meeting, Mr Yee answered in the affirmative.  My perception was and remains that Mr Yee’s affidavit evidence as to the critical dialogue at the coffee shop meeting, both before and after the arrival of Mr de los Reyes at the meeting, was unshaken.

102               Mr Yee was next cross-examined upon his affidavit testimony concerning his meeting with Mr Glass after the coffee shop meeting, when Mr Yee claimed to have shown to Mr Glass Bakkante’s documentation relating to Mr de los Reyes’ entry into Bakkante’s employment; once again that evidence, which does not appear to have been ultimately controversial to any significant extent, was confirmed by Mr Yee.  Other cross-examination of Mr Yee in relation to Bakkante records, albeit undertaken at some length, was largely inconsequential, and need not be recorded.  By the close of his cross-examination, it was apparent that Mr Yee’s adherence to his affidavit had not been materially diminished in terms of its accuracy or credibility. 

103               Mr Osmankerim further testified by his affidavit evidence, in relation to Mr de los Reyes’ absence from the building site, and subsequent return, as follows.  About a week after the occasion which he recounted as having involved himself, Mr de los Reyes and Mr Blevin, Mr de los Reyes left the Pyrmont site of Bakkante’s construction operations, and did not return for ‘a couple of weeks’, that being a longer time than specified more precisely by Mr Yee and Mr de los Reyes, and as appears from Mr Gunawan’s affidavit evidence, to which Mr de los Reyes’ wage records were attached.  During that period of absence, Mr Osmankerim narrated in his affidavit that he said to Mr Blevin ‘Alan, it looks like Rodney isn’t coming back’, the reference to ‘Rodney’ being of course to Mr de los Reyes, and that Mr Blevin replied ‘I don’t give a damn, I am not losing any sleep over it.  All I wanted him to do is join the union.  Everything would have been all right if he had joined the union’.  On the following day, according to Mr Osmankerim, Mr Blevin further said to him ‘I don’t know why this is so difficult.  I don’t know why Ben [ie Mr Yee] doesn’t pay the union dues or Rodney [pay] himself.  It would have settled a lot of headaches’.  Mr Osmankerim also recalled saying to Mr Blevin, sometime later during December 2002, ‘Hey Alan, how come Rodney is working the Alimack’, to which he said Mr Blevin replied ‘I don’t care because he is a proud CFMEU member, one of our brothers.  Leave him alone’.  That outcome to the Alimack controversy, not contradicted by the respondents’ case, is a matter of substantial significance to the applicant’s case.  Mr Osmankerim concluded his affidavit testimony thus: ‘Since then, I have not seen Rodney have any problems with Alan’.  Nothing arose in the course of Mr Osmankerim’s subsequent cross-examination to require otherwise than that I should fully accept the substance of his affidavit testimony which I have reproduced in these reasons.

The respective responses made on behalf of the Union by Messrs Blevin, McGahan and Glass

104               The responses in affidavit form furnished on behalf of the respondents were provided by Messrs Blevin, McGahan and Glass.  Those responses were characterised in part by briefly framed denials of the entire content of conversations set out in the applicant’s affidavit material, often without an accompanying indication as to whether anything was additionally said on the occasions in relation to which those denials were directed.  I refer in particular to the denial of conversational material adduced by the applicant relating to Mr de los Reyes’ absence of membership of the Union until the concluding events of the narrative of the evidence.  A further characteristic of the content of the affidavits of Messrs Blevin, McGahan and Glass was the raising of many matters of a collateral nature having insignificant, or relatively insignificant, bearing upon the critical issues falling for determination.  Those elements of the respondents’ principal affidavits did not serve in my opinion to assist the credibility of the respondents’ case.  Particularly was that so where no alternative versions of the conversational material adduced by the applicant were furnished on behalf of the respondents in relation to incidents where it was more likely that matters bearing upon issues arising in the proceedings were discussed by or in the presence of the particular deponent of the affidavit.  It is common ground that following upon his attendance at the controversial coffee shop meeting, and his subsequent absence from the construction site without payment of wages, Mr de los Reyes did return to the construction site contemporaneously with joining the Union.  There is no suggestion of any ongoing controversy occurring after he did so, whether in relation to his presence on the site as an employed construction worker, or otherwise; indeed inferentially, the contrary appears to have been the case.  

105               A detailed comparison of the respective affidavits of the respondents with those tendered by the applicant relating to the factual issues arising, being issues reflected particularly in the on-site conversations and in the controversial coffee shop meeting, is therefore instructive to the task of determining the outcome to the applicant’s case.  The applicant’s complaint the subject of the proceedings may be described to the effect that under the guise of addressing on-site safety and related insurance issues, the respondents engaged in conduct in reality designed to compel Mr de los Reyes, in his newly acquired employment position as a full time Bakkante construction employee, to become a financial member of the Union (it being of course an industrial association for the purposes of the Act).  Prior to that time, as has been already indicated, Mr de los Reyes had been present on the site as an employee of his family company Phoenix, and as a member of the MWU.  Another characteristic of the testimonies of Mr Blevin and Mr McGahan was the tendency to conflation of the circumstances of the prior physical presence of Mr de los Reyes with the subsequent, and initially brief, presence on site of Mr de los Reyes in his newly appointed capacity as a full time construction employee of Bakkante.  Absent moreover from the affidavit accounts of the respondents is an account in some detail of what happened on the building site in relation to Mr de los Reyes after he joined the Union.

106               Mr Blevin’s affidavit evidence, which I will first seek to summarise, was characterised by responses which often tended to be lacking in the kind of specificity appropriate to, and likely to have been involved, on particular occasions being addressed, when read in the context of the more comprehensive affidavit evidence tendered by the applicant which Mr Blevin’s affidavit nevertheless purportedly addressed.  As has been exemplified already, the affidavit evidence adduced by the applicant was characterised by many narratives of face to face dialogue initiated by Mr Blevin, and by Mr McGahan, with Bakkante employees, including of course its chief executive officer Mr Yee.  I have already extracted, or otherwise referred to, much of the content of the affidavit evidence adduced by the applicant in support of its case, being a course which has been rendered necessary or appropriate in order to provide an adequate picture of the nature and extent of the controversies involved.  Those controversies arising in the proceedings in particular on the principal issue as to contravention of s 298P(3) of the Act related largely to things physically done and matters which physically occurred, on either the construction site or in the neighbouring coffee shop.  Mr Blevin made many responses in his affidavit to conversational material, which in that context tended to inadequacy. He denied a number of critical matters raised in some detail in the applicant’s affidavits without any, or else any adequate, indication or explanation as to was or what might have been otherwise discussed or taken place, to his recollection, on the occasions identified in those affidavits.  Moreover in a number of instances, information was proffered by Mr Blevin in his responding affidavit which had very limited, or no material, bearing upon the critical evidentiary issues raised squarely and in detail by the applicant’s affidavits.  Similar inadequacies were apparent in the affidavits of the respondents’ other witnesses Messrs McGahan and Glass, which I will later address.  Having made those general observations, I will first address more specifically matters of significance in Mr Blevin’s affidavit evidence, in the order in which the same appear. 

107               Mr Blevin recounted that he raised with Mr Yee his initial concern as to whether Mr de los Reyes held ‘proper workers compensation and public liability insurance’.  At no stage however did he appear to articulate precisely why the existence of those insurance covers in favour of Phoenix, was material, much less essential, to the protection and welfare of Bakkante’s employees and other sub-contractors engaged on the site, particularly given that there was no suggestion that Bakkante as head contractor did not have adequate workers compensation insurance in relation to all building workers on site, and adequate public risk insurance in relation to incidents that might occur on site.  It was perhaps conceivable that Phoenix’s site cleaning activities might have led to physical injury to Mr de los Reyes, his wife or son, or other persons on site, in the course of conducting the same; in the course of the contentious conversations on site whereof evidence was led however, no such possible circumstances were exemplified.  It appears that such cleaning activities took place in any event outside or mainly outside normal working hours.  Moreover no issue involving Mr de los Reyes or those cleaning activities appears to have arisen until he started full time work as a construction employee of Bakkante.  All that tends to lead to an inference to be drawn adversely to the respondents that Mr de los Reyes’ on-site activities only became the subject of concern when he commenced full time construction work on the site, without becoming a member of the Union.  There was no evidence moreover to the effect that any other subcontractors on the building site had been specifically required to provide to the Union details of their workers compensation and public risk insurances, nor indeed that any such requirement had been demanded of Bakkante as head contractor in relation to its insurances.  A legitimate issue for Mr Blevin to have raised with Bakkante, and which he did raise, after Mr de los Reyes entered upon construction activities on site concerned Mr de los Reyes’ operation of the Alimack hoist without being experienced or ‘ticketed’ to do so.  It could scarcely be denied that the Union did have, and indeed still has, an important role or function in relation to ensuing on-site safety of construction sites.  However no objection appears to have been maintained in relation to Mr de los Reyes’ operation of the Alimack hoist, once he ultimately joined the Union and re-commenced construction duties on the site for Bakkante. 

108               Mr Blevin’s affidavit evidence was to the effect that Mr de los Reyes’ initial absence of Union membership did not require any ‘particularly momentous decision as the particular building site had approximately 50% union membership’.  Subsequently he deposed in his affidavit nevertheless to saying to Mr Yee that ‘as Rodney was getting the benefits of an EBA and conditions negotiated on our behalf by the Union, …he should consider joining’.  No records were produced by the respondents to support that estimate of Union membership, for what that may ultimately matter, and the inference conceivably open to be drawn is that the non-member percentage was referrable to subcontractors, and not to any employees directly of Bakkante.  In making that observation, I have not overlooked the fact subcontractors on building sites are eligible for membership of the Union under its rules.  I should record, incidentally, that Mr Blevin was clearly a dedicated member and supporter of the Union and no suggestion of adverse criticism of those factors was made by the applicant.  Consistently with his enthusiastic devotion to the Union’s affairs and objectives, Mr Blevin acknowledged that he would on occasions leave the Bakkante construction site during working hours in order to attend CFMEU meetings. 

109               Another characteristic of Mr Blevin’s affidavit material was that it focused largely upon matters not directly material, and at best merely collateral, to the critical issue arising in the proceedings, namely of course contravention of s 298P(3) of the Act.  For example, attention was given in his affidavit to unspecific occupational health and safety issues, such as safety walks, and to sub-contractors’ superannuation entitlements, workers compensation, wages generally, the availability of Saturday work and the need for ‘ticketed’ hoist drivers engaged on the construction site.  The impression open to be gained from that kind of evidentiary material was an objective of distraction on the part of the respondents from the precisely and confined complaint of the applicant, and the basis therefor, the subject of the proceedings. 

110               In the context of denying any demand having been made by him upon Mr Yee that Mr de los Reyes join the Union, and further denying that he adopted the stance that only Union members should be allowed by Bakkante onto the Clifton Apartments construction site, Mr Blevin said the following in his affidavit:

‘I did have a conversation on one occasion with Mr Yee saying to him that as Mr de los Reyes was getting the benefits of an EBA and conditions negotiated on our behalf by the union, that he should consider joining.’

My impression and appraisal of the totality of the evidence in the case is that the above limited concession underscored to a substantial extent the conduct of the respondents directed to bringing about Mr de los Reyes membership of the Union. Put another way, that purported concession materially understated the nature and extent of Mr Blevin’s discussions on site with Mr Yee with and in relation to Mr de los Reyes. 

111               Another matter of controversy raised by the Respondents related to Mr de los Reyes’ alleged use of an ABN number.  The respondents’ evidence on the matter did not make clear whether any such use related to the prior Phoenix cleaning operations on the Bakkante construction site, or to Mr de los Reyes’ subsequent employment on construction work on that site.  Mr Blevin gave the following evidence by affidavit:

‘I was told that Mr de los Reyes was an employee but I did have my suspicions that he was employed illegally on an ABN, or Australian Business Number.  I recall requesting some proof about Mr de los Reyes’ status as to whether or not he was an employee or sub-contractor.

I also raised my concerns about this issue with either Mr David Glass or Mr Joe McGahan, CFMEU organisers, and asked them to look into the matter.’

112               Several observations may be made upon the ABN controversy raised by Mr Blevin.  Mr Blevin did not articulate what precisely were those ‘concerns’, much less the precise basis for raising the same in the legitimate interests of the Union, directly or indirectly.  His affidavit evidence on the subject was moreover unspecific both as to time and context, and in particular, whether the time of actual or suspected ABN use by or involving Mr de los Reyes occurred before or after he became a construction employee. It was not explained by the respondents why, in the context specifically of its early temporary site clean-up work as a cleaning contractor, Phoenix may have used ABN numbers by reference to that activity on its part, and why any such use was a matter of relevant concern of the CFMEU.  Put another way alternatively, whether Phoenix deducted income tax from the wages it paid or credited to Mr and Mrs de los Reyes and their son, which apparently was the case in any event (see Exhibit R1) was not shown to be a matter of relevant concern to the Union.  In all events, I should formally record for completeness that Mr Blevin said in his affidavit evidence that ‘… requests were made for evidence of Mr de los Reyes’ workers compensation, public liability and time and wage books’, though without specificity as to the time of making those requests, Mr Blevin added somewhat enigmatically in this context ‘Nobody said that Mr de los Reyes could not work’. 

113               Mr Blevin’s affidavit evidence sought to convey the impression in any event of an entire absence of confrontational behaviour on his part, and on the part of Mr McGahan, in relation to the presence on the building site of Mr de los Reyes, during the period of time preceding his ultimately becoming a member of the Union.  However that was not an inference that is, in my opinion realistically and credibly open to be drawn, notwithstanding Mr Blevin’s testimony in the proceedings.  What I have already recorded conveys an impression quite to the contrary. 

114               Moving to Mr Blevin’s testimony under cross-examination, I should first record that he agreed that he was the CFMEU site delegate on the Bakkante construction site in November 2002, and that before then, he had been the CFMEU site delegate on the so-called Fletcher building site, and ‘Probably maybe [on] two [sites] prior that’.  He said that after becoming employed on the Bakkante site, his enquiries and investigations disclosed that about one-half of the workmen present on the site (inclusive however I would infer of subcontractors) were CFMEU members, being an estimate to which I have also earlier referred in another context. 

115               As earlier foreshadowed, Mr Blevin did not explain under cross-examination the precise basis for his purported concern that Mr de los Reyes (or more particularly his company Phoenix) should have held a workers compensation policy in respect of the cleaning work previously undertaken purportedly in the name of Phoenix on the Bakkante site.  Whilst Mr Blevin accepted that Mr de los Reyes was ‘… obviously, at the time… just self-employed’, he also said that it was ‘… my role as a union delegate to ensure all contractors coming on the site are covered under the Workers Compensation Law of New South Wales’.  Phoenix did hold a public risk/liability insurance cover of $5 million (see Exhibit R2).  Whilst it can be rationalised that circumstances could conceivably have occurred whereby Bakkante construction workers might have wished to sue Phoenix for the negligent conduct of Mr de los Reyes as its employed cleaner leading to injury, that prospect was more apparent than real, there being no evidence that any injury was sustained prior to cessation of the at cleaning work activity.  What I would infer to be the true reason for Mr Blevin’s emerging hostility, or emerging aggressive conduct, directed against Mr de los Reyes, as disclosed in the evidence which I would accept, was Mr de los Reyes’ taking on building/construction type work on the Clifton Apartments site without joining the Union, particularly in circumstances where Mr Blevin sought the employment by Bakkante of a Union member known already to Mr Blevin, instead of Mr de los Reyes. 

116               In the course of his cross-examination, Mr Blevin accepted or agreed with the following propositions, matters and circumstances of potential significance in favour of the applicant’s case (being in most instances significant already identified in these reasons:

(i)         he raised with Mr Yee the possibility of a friend of his (ie Mr Heggarty) getting a job with Bakkante, contemporaneously with, or else not long after, Mr de los Reyes had entered full time employment by Bakkante as a construction worker;

(ii)        he agreed that he told Mr Yee that Mr de los Reyes could not operate the Alimack hoist ‘without a ticket’, and that he did so ‘Because of the OH&S laws’, though he could not identify those laws, saying ‘I’m not an expert on the OH&S laws – but I’m sure it says somewhere in those laws that if you don’t have a ticket to operate certain plant and machinery, you’re not able to operate it’;

(iii)       he agreed however that Mr Yee said to him in response ‘Mr de los Reyes can operate the hoist with a log book’;

(iv)       he believed that he ‘did sight workers compensation for Bakkante, yes’;

(v)        it was in effect the practice of Mr de los Reyes, when he was engaged in cleaning work on the site, to come ‘… to the job during the night or early in the morning when there was nobody on site’;

(vi)       ‘It is quite possible’ that he was informed by Mr Yee that Mr de los Reyes ‘would be starting as an employee the next day… but I never really saw any evidence to prove it’ (being an employee of course of Bakkante); and

(viii)      ‘at the coffee shop meeting, Mr McGahan asked Mr Yee to produce evidence of his workers comp or produce evidence he (ie Mr de los Reyes) was a wages employee’ – no evidence was produced.

In that latter regard however, there was no suggestion made by Mr Blevin of his requesting Mr Yee to bring any such evidence to the coffee shop meeting. 

117               Mr Blevin asserted however the following matters of significance to the respondents case, in the course of his cross-examination:

(i)         ‘I was told he (ie Mr de los Reyes) was a contractor when [Mr de los Reyes] first introduced him… I presumed he had an ABN.  I never saw a copy of his ABN number’;

(ii)        the coffee shop meeting came about after he (Mr Blevin) said something along the following lines to Mr McGahan, namely ‘… I have requested many times off (sic) Benjamin Yee for evidence, he hasn’t provided any evidence, I think we should organise a meeting with Mr Yee and get the issue sorted out’ (that is, whether any workers compensation insurance was held by Mr de los Reyes);

(iii)       he described as ‘nonsense’ the suggestion that he wanted Mr McGahan ‘to deal with the question of Mr de los Reyes’ union membership’ at the coffee shop meeting, claming that ‘It wasn’t a big concern.  It wasn’t an issue’;

(iv)       the purpose of the coffee shop meeting was to discuss ‘… workers comp, was he [Mr de los Reyes] a wages employee’, meaning thereby, so may be inferred, ‘a wages employee’ of Bakkante; as I have elsewhere observed, by that time not even payment of Mr de los Reyes’ first weekly wage had fallen due for payment;

(v)        he also described as ‘nonsense’ and ‘complete and utter rubbish’ and ‘lies’, the suggestion that during the course of the coffee shop meeting, Mr McGahan got out a CFMEU membership card and said to Mr de los Reyes, ‘why don’t you join the union’;

(vi)       he further described as ‘nonsense’ the suggestion that Mr McGahan said at the meeting ‘… he [Mr de los Reyes] is not to work on the site and that is that’; and

(vii)      he yet further described as ‘nonsense’ that the ‘talk about Mr de los Reyes’ company and his workers compensation coverage was just a ruse to put pressure on Mr de los Reyes because he wasn’t a member of the union’.

I do not think that Mr Blevin advanced the cause for a finding in his favour as to credibility of his testimony through his somewhat intemperate use of the words, ‘nonsense’, ‘lies’ and ‘utter rubbish’, and his manner of so expressing himself in relation to what was polite and careful cross-examination.

118               Mr Blevin gave the following account of the circumstances whereby Mr de los Reyes came to join the Union:

‘He disappeared from the job… it could have been a week, a few days, I’m not sure.  He came back to the job and for some reason he came and asked me… he wanted to join the union.  I said “Come and see me later, get the paperwork off me”, [I] gave him an application card, he went away and filled it out…’.

119               Mr Blevin was next cross-examined in relation to Mr de los Reyes’ operation of the Alimack hoist, after he returned to work and joined the Union.  His responses are set out below at some length, in the light of the importance of that aspect of the evidence in the proceedings:

‘After that he worked the hoist, didn’t he, the Alimack hoist?---He was on the hoist prior to that as well.

When he worked on the hoist prior to that you raised an objection because he was a person that didn’t have a ticket?---That’s correct.

When he returned to the site and joined the union he operated the hoist without a ticket but training for a ticket, didn’t he?---I later found out that people who were supposed to be training him, which was Amir Osman and another guy, Saad Obeid, only found out that they didn’t have tickets and they were operating the hoist.  Ben Yee had a history of not putting people through the tests to get them ticketed to operate plant and machinery.  So because of me saying to Mr Yee, “You need to get these people tested” they eventually got tested and got tickets on the hoist. 

(I observe that the answer to that last extracted question in cross-examination did not address what was a critically relevant matter).

 

…

When do you say that you discovered that Amir did not have a ticket?---I think Amir Osman told me.  I think it was actually Amir Osman told me he didn’t have a ticket, from recollection.  This was when he was supposed to be supervising de los Reyes on the hoist, which he never – very rarely did.

You knew that Mr de los Reyes was operating the site and you understood that he was under the supervision of Amir, didn’t you?---Only ever once seen him be supervised.  Most of the time I’ve seen de los Reyes operate the hoist was on his own.  Didn’t even sign the log book.

That was something that you didn’t object to after he joined the union?---I did object, yes.  I objected to anyone on that job who was operating any equipment without tickets.

You didn’t object to Mr de los Reyes operating the joist after he joined the union, did you?---I objected, yes.

The very first day?---Who knows when it was.

You know it wasn’t, don’t you?---Throughout the whole job I objected to people operating any machinery without tickets.

You know that you didn’t object to Mr de los Reyes operating the hoist when he joined the union?---That’s nonsense.  That’s nonsense.

A ticket is something which s issued by the Department of Labour and Industry, is it?---By WorkCover.’

120               Mr McGahan’s affidavit material exhibited similar unfortunate features to those of Mr Blevin.  He could not be described as having adequately answered the principal thrusts of the applicant’s comprehensive and detailed affidavit material which he nevertheless purportedly addressed.  Moreover almost one half of the content of Mr McGahan’s affidavit was devoted to merely historical matters, involving for instance Lecan’s financial collapse, and the consequences thereof.  It can scarcely be denied that the Union had a legitimate, indeed laudable, concern for those subcontractors who were left unpaid by Lecan, at least to the extent that they comprised individual tradesmen.  However that affidavit material propounded by Mr McGahan could hardly be described as bearing, at least directly, upon the critical issues raised by the applicant in the present proceedings. 

121               The first reference in Mr McGahan’s affidavit to Mr de los Reyes was in the following terms:

‘… on or about 27 November 2002 I received a phone call from Mr Blevin saying that he had concerns about a contract cleaner who was working on site for some weeks.  I said words to the effect “We will talk about it tomorrow.  I’ll contact David Glass and come to the site and listen to your concerns”.’

It was however on that date that Mr de los Reyes commenced full time employment with Bakkante as a construction worker, having ceased cleaning work on a date not specifically appearing in the evidence, but inferentially at least not merely on the day preceding his commencement of construction work as an employee.  Mr McGahan said that he thereafter attended the coffee shop meeting.  Prior to the start of that meeting, he further said that Mr Blevin had advised him that Mr de los Reyes was working for Bakkante on an ABN arrangement as a contract cleaner, which by then was even more ostensibly incorrect.  Mr McGahan claimed to have asked Mr Blevin whether or not he had seen any paperwork relevant to description of Mr de los Reyes as a contract cleaner, such as a work method statement or so-called ‘Risk Analysis’, but Mr Blevin told Mr McGahan that he had not seen any such documents.  It was not indicated, or at least satisfactorily indicated, on behalf of the respondents in that context, what justifiable concern was harboured by the respondents in relation to ‘paperwork’ concerning Mr de los Reyes’ prior presence on the site for the purpose of undertaking cleaning work on a contract basis.  By the time of the coffee shop meeting, Mr de los Reyes had settled in, as it were, to construction type duties on the Clifton Apartments building site, for instance having operated the Alimack machine, albeit in controversial circumstances raised by Mr Blevin. 

122               Mr McGahan’s affidavit next addressed the detail of Mr Yee’s affidavit concerning the contentious meeting in the coffee shop located near the construction site.  It is instructive to compare the account of Mr McGahan appearing below with that of Mr Yee earlier set out in these reasons.  Mr McGahan testified as to his recollection of what was initially said at the meeting, as follows:

Mr McGahan:         ‘I understand you have hired someone to do the cleaning on site.’

Mr Yee was then said by Mr McGahan to have identified Phoenix to him as the on-site cleaning company.

Mr McGahan:         ‘Does the company have a workers compensation, public liability and other documentation to comply with NSW laws, such as safe work methods statements, and is the cleaning site inducted?  And who did the induction?’

 

Mr Yee:                  ‘I am not sure.’

 

Mr McGahan:         ‘Does the cleaner have any employees?’

 

Mr Yee:                  ‘I do not know.’

 

Mr McGahan then recorded in his affidavit that ‘Because Mr Yee could not answer my questions I asked to speak to the cleaner himself, who I now know as Mr Conrado de los Reyes’.

123               It is not readily apparent why Mr McGahan would have journeyed, presumably from the Union’s office premises in Wentworth Avenue Sydney or at Lidcombe to a coffee shop in Pyrmont, in order to ventilate the Union’s concerns purportedly as to the foregoing matters appertaining to Mr de los Reyes’ cleaning company Phoenix.  Those concerns, for one matter, were not readily connected to building and construction activities, and the contrary was not contended, at least specifically, by the respondents.  Be that as it may, Mr McGahan next provided what he described as ‘a fairly accurate description’ of the conversations in the coffee shop involving himself on the one hand and Mr Yee and Mr de los Reyes on the other.  Apparently Mr Blevin remained silent throughout the course of the controversial discussion which ensued. 

124               I should first mention perhaps that Mr McGahan denied in his affidavit much of what Mr Yee had recounted in his affidavit as to what Mr Yee claimed Mr McGahan to have said in the course of the coffee shop discussions, asserting that ‘There would be no reason for me to provide a CFMEU Union Membership card if [Mr de los Reyes] was a director of a company’, and further that ‘There was no mention of union membership at all in the conversation’.  Mr McGahan further asserted in his affidavit that ‘The issue… discussed at the meeting was whether or not Mr de los Reyes’ company or Bakkante had complied with workers compensation and occupational health and safety laws’.  Mr Blevin did not identify which ‘occupational health and safety laws’ he had in mind, nor did he outline what was the legitimate interest or concern of the Union as to compliance by Phoenix (of course Mr de los Reyes’ cleaning company), or by Mr de los Reyes personally, with workers compensation or occupational health and safety laws.  Whether Mr Blevin had informed Mr McGahan beforehand that the cleaning activities of Phoenix had ceased is unclear from the respondents’ affidavit evidence, though it may I think be inferred that he did, once it be accepted that the true issue at the centre of the controversy at that meeting was Mr de los Reyes’ engagement in construction type activity in full time employment by Bakkante, without Mr de los Reyes having yet joined the Union.  The latter was the inference which the applicant invited me to draw.  It was an inference reasonably open to be drawn. 

125               Mr McGahan next denied by his affidavit Mr Yee’s prior affidavit account as to what Mr McGahan had allegedly said at the meeting, namely that ‘[Mr de los Reyes’] is not to work on the site until he produces his workers compensation, public liability and wages book… there is not (sic) negotiation on this’.  Mr McGahan somewhat ambiguously claimed that despite Mr de los Reyes informing those present at the meeting that he ‘had his own company’, he heard Mr Yee also saying that he was employing Mr de los Reyes personally as an employee, and that therefore Mr de los Reyes was not required to have the documentation that the Union had just requested.  Mr McGahan said that he thereupon responded to the effect ‘I am very confused’, and further that the following conversation next ensued between Mr Yee and himself:

Mr Yee:                  ‘He is on wages’.

Mr McGahan:         ‘You told me he was a contractor and had his own company… [u]ntil such time as both parties show evidence that Mr de los Reyes is or isn’t a direct employee, you should ensure that Mr de los Reyes is properly covered by workers comp and holds the relevant documentation.  If you are now saying he is an employee, then you should give your evidence of this to Mr Glass, the area organiser.  If it is true that Mr de los Reyes is engaged as a company and has not any workers compensation then he should not be working on the site’.

Thereafter Mr McGahan denied saying what had been attributed to him by Mr Yee in Mr Yee’s affidavit.  His affidavit evidence was that he said to Mr Yee ‘I am not interested in that.  He was working as a company cleaning the amenities.  We want to see all his documentation’, and further that ‘Until he show us all the documentation he is not to work on the site and that’s that’.  The latter testimony raises further queries unexplained by Mr McGahan’s affidavit testimony; if Mr McGahan, at least by the time of making that demand upon Mr Yee, was aware that Mr de los Reyes had ceased ‘working as a company cleaning the amenities’, what was the ongoing purpose, it may be asked, for the request to Mr Yee for ‘all his documentation’. 

126               I have found it difficult to distil the rationale of much of what Mr McGahan claimed to have been discussed on this controversial coffee shop occasion.  If Mr de los Reyes had by then become an employee, something which Mr de los Reyes would presumably have told Mr McGahan, since that was evidently the fact of the matter, event though Mr de los Reyes’ initial payment of his first wages would not then be due for another two days or so (if paid weekly), Mr McGahan had no apparent basis for legitimate concern on behalf of the Union, such as to have justified the calling of what was an apparently confrontational meeting on the respondents’ initiative.  It must have been sufficiently evident to Messrs McGahan, Blevin and Glass that Mr de los Reyes’ family company cleaning activities on the site had ceased, at least for the time being.  It may be reasonably inferred moreover that Mr McGahan would have had no basis to doubt that Bakkante for its part had adequate workers compensation insurance coverage for its on-site building and construction employees and individual sub-contractors generally, and as well adequate public risk insurance, and the contrary was never suggested, much less queried on behalf of the Union, and no issue, much less query, was ever apparently raised, by or on behalf of the Union, in that regard.  Whatever concerns might have been held by or on behalf of the Union as to Phoenix’s site cleaning work, it is apparent that such work had ceased. 

127               Mr  McGahan agreed that Mr Yee rang him subsequently to the meeting in the coffee shop, but asserted in his affidavit that he spoke to Mr Yee as follows:

Mr McGahan:         ‘All the evidence as to Mr de los Reyes should be given to Mr Glass, the are (sic) organiser as to whether or not Mr de los Reyes is a contractor or an employee… if the cleaner has a company and is working without a workers compensation policy he should stop’.

Again the inexplicable reference to ‘cleaner’ may be observed.  If that particular testimony is to be accepted as creditable, the observation is I think reasonably open to be made as to why Mr McGahan (and Mr Glass) would have realistically taken the time and trouble to convene and attend the coffee shop meeting when surely a telephone call to Mr Yee would have sufficed, at least in the first instance.

128               Mr McGahan next recorded that Mr Yee ‘made some mention of the union membership’, and that he (Mr McGahan) replied ‘I don’t want to discuss this with you any more.  You should provide your information to Mr Glass, the area organiser’.  Once again it may reasonably be asked, why would Mr Yee have raised the subject of union membership at the meeting, if that subject was not at the centre of this apparently confrontational, or at least controversial, meeting? 

129               As to Mr Zoratto’s affidavit evidence as to the events and dialogue of the coffee shop meeting, Mr McGahan purportedly responded thereto in his affidavit, relatively briefly, and I am obliged to observe, inadequately in the circumstances, by asserting merely that Mr Zoratto’s description of events ‘did not happen’. 

130               Mr McGahan’s evidence under cross-examination included the following matters of apparent significance:

(i)         the coffee shop meeting ‘had to do with the concerns Mr Blevin had about a supposed sub-contractor on site’; as I have point out however, in the events which had happened, all that had seemingly become a matter of history, Mr de los Reyes having entered Bakkante’s full time employ;

(ii)        his concern at that meeting was ‘whether or not Mr de los Reyes was a contractor or an employee’; Mr Yee explained that the latter was the case;

(iii)       it was an ‘incorrect’ suggestion of the cross-examiner that ‘… as an organiser of the CFMEU… he [was] always interested… in whether or not workers on a building site are members of the Union’; enlistment to membership of the Union was implicitly one of his functions and objectives;

(iv)       he ‘had no doubts’ that Bakkante had workers compensation insurance covering his employees’, whoever they were still alleged to be; and

(v)        his concerns about Mr de los Reyes were that ‘There was no paperwork in existence whatsoever to identify who this gentleman was’, and further ‘did his company then have proper workers compensation, public liability or other compliance issues… [and] was he site safety inducted?’.

131               Mr McGahan agreed under further cross-examination that he asked Mr de los Reyes at the meeting:

(i)         whether he was a director of Phoenix;

(ii)        whether ‘he hired employees’;

(iii)       whether his wife and son ‘got a wage’; and

(iv)       to produce ‘a workers compensation [and] public liability [policy] and wages both for the past six months’.

Given of course that Mr de los Reyes had by then become a full time construction employee of Bakkante, consistently with the objective evidence, at lease the ongoing relevance of those queries on the part of Mr McGahan was difficult to sustain, and was not satisfactorily sustained to my mind, on behalf of the respondents.

132               Thereafter Mr McGahan denied in the further course of his cross-examination:

(i)         that he produced for Mr de los Reyes a white CFMEU union membership application form; and

(ii)        that he said to Mr de los Reyes ‘… if you don’t want to join the union, that’s fine, that’s all, I’ve finished with you’ (describing thereby the suggestion as ‘rubbish’).

133               Mr McGahan testified instead that:

(i)         he pointed out to Mr Yee that ‘we had no paperwork whatsoever presented as to who this contractor was, and we still needed to sight it’;

(ii)        ‘there was no evidence of Mr de los Reyes having workers comp or public liability or anything else’;

(iii)       ‘Mr Yee had two stories to tell, one, he was a contractor and gradually then had switched… to him being an employee of Mr Yee.  There was a contradiction there… there wasn’t one shred of evidence as to who this gentleman was on paper… not one shred of evidence’; and

(iv)       ‘All I got was it was a family company.  He did have an ABN number, which I never saw any evidence of.  I didn’t see any paper work to prove any of this.  So I was left in the dark, completely in the dark’.

There is an evident lack of rationality identifiable in those answers. 

134               I would interpolate to point out that there was no suggestion elsewhere in the evidence that Mr de los Reyes was asked to bring any ‘paperwork’ to the meeting; indeed it appears that he was abruptly summoned, without prior notice, from the construction site where he was working, without being asked to bring any ‘paperwork’ with him to the meeting, assuming of course that he would have thought to bring to the construction site, in the context relevantly of that day’s construction duties he was undertaking, his family company’s papers and documents.  Moreover Mr McGahan did not explain, or explain satisfactorily, why there was any materiality of the family company’s ABN number (if any) to the changed status quo of Mr de los Reyes as a full time construction worker.

135               When asked ‘did you see any person… working on the site under Mr de los Reyes rather than under the direction of the company and Mr Yee’, Mr McGahan replied ‘I didn’t see any.  There’s no evidence of anything’.  He later said in the same vein: ‘On the one hand he was supposedly a contractor and as gradually the conversation went along it suddenly switched to him being an employee’.  When thereafter asked whether ‘… Mr Yee was direct [with] you, that he told you he was a direct employee on wages, and that he was covered by [workers] compensation’, Mr McGahan responded ‘That’s what he said at the end, not what he said at the beginning.  There was conflict’.  He did not explain however what he thought Mr Yee supposedly meant by ‘at the beginning’.  In any event, given that response of Mr McGahan to have been correct and justifiable, which does not seem to have been the case, Mr McGahan did not indicate why it was at least by the end of Mr de los Reyes’ explanations given at the meeting, that he was unable to understand the situation which had emerged from his questioning of Mr Yee and Mr de los Reyes.

136               The following answers were next given by Mr McGahan to questions (also recorded below) which I put to him:

All that Mr Fernon’s asking is your understanding.  Let us say the hypothesis he is an employee then it is immaterial to you whether he had workers’ compensation or public liability?---Well, the onus would have been on Mr Yee and there was no evidence.

On the hypothesis just assuming that he was an employee then the question of whether he had workers compensation insurance or public liability insurance was irrelevant?---Totally irrelevant.’

The significance of the last answer of Mr McGahan needs no additional emphasis. 

137               Further cross-examination produced responses on a milder tone from Mr McGahan, as follows:

Mr Fernon:            ‘You had had a number of dealings with Mr Yee prior to 28 November hadn’t you?’

Mr McGahan:       ‘I had a number of dealings with him when Lecan went bankrupt.’

Mr Fernon:            ‘So he was a person that was known to you?’

Mr McGahan:       ‘He was a young man who took over a very difficult and stressful situation with large sums of money going down the drain which affected all of his family at the time.’

Mr Fernon:            ‘What I’ve suggested to you is that, if your concern was simply as to whether or not Mr de los Reyes was an employee, you would have gone to Mr Yee and asked to see the employment records relating to Mr de los Reyes?’

Mr McGahan:        ‘That was left to Mr Glass to follow up.  No such evidence was present at the time.  The time was to be allowed for that evidence to be produced by Mr Yee to the area organiser, David Glass.’

138               The following subsequent answers under cross-examination left the evidence of Mr McGahan up to that time in at best an ambiguous, but in my opinion in an unsatisfactory state:

Mr Fernon:            ‘Mr McGahan, your understanding now is, is it not, that Mr de los Reyes was an employee of Bakkante Constructions in late November 2002?’

Mr McGahan:       ‘You’re asking me this question if I know about this now.  Well, I haven’t seen any documentation personally myself at all in relation to that.’

Mr Fernon:            ‘Well, have you had any discussions with Mr Blevin as to Mr de los Reyes’ status as an employee or not?’

Mr McGahan:       ‘I have had no discussions with Mr Blevin about Mr de los Reyes at all.’

Mr Fernon:            ‘Have you had any discussions with Mr Glass about Mr de los Reyes’ status as an employee or a contractor?’

Mr McGahan:       ‘Mr Glass was delegated, he’d been the area organiser, to deal with all of the matters which you’ve raised here today, contactor, employee so forth, and he has all of that documentation in place I believe.  He took no…’

139               As to the circumstance that Mr de los Reyes subsequently became a member of the Union and resumed his employment duties on the construction site, Mr McGahan responded, in my opinion somewhat unsatisfactorily, as follows:

Mr Fernon:            ‘What I’m suggesting to you is that once you were aware that Mr de los Reyes had joined the union, that there was no longer any concern that you had and, accordingly, there was no need for you to discuss the matter further with Mr Glass, or indeed, anyone else?’

Mr McGahan:       ‘And I don’t recollect having any discussion with Mr Glass about this matter.  Don’t have any recollection of any discussion with him at all.’

Mr Fernon:            ‘And I’m suggesting that the reason for that is because you shortly after 28 November 2002 became aware that Mr de los Reyes had joined the union?’

Mr McGahan:       ‘Well, again, as I said to you previously, and you’ve got the receipt there, you’ve got my signature to it, it is of no great significance to me.  I sign up a lot of people into the union on a regular basis.  One name over another name to me personally isn’t significant.  There are a lot of names.  His name would have not stood out beyond anybody else’s that I deal with on a regular basis and I deal with many of them on a weekly basis.’

Yet in the case of Mr de los Reyes, both Mr McGahan and Mr Glass had taken the trouble to spend an obviously not insignificant amount of time in journeying to the coffee shop adjacent to the construction site in order to question Mr Yee, and thereafter Mr de los Reyes, over what does not appear to have been a short period of time. 

140               On the following day of the hearing, the cross-examination moved back to Mr de los Reyes’ association with the Bakkante construction site, and produced the following further evidence of ambivalence, as follows:

Mr Fernon:            ‘You see, what I’m suggesting to you is that what Mr Yee said to you was that Mr de los Reyes had in the past cleaned the toilets and amenities on the site, that is what Mr Yee was telling you?’

Mr McGahan:       ‘Well, he may have – he may have been saying that, I don’t know.  We were there just to find out how long he was there.  What role he was engaged by Mr Yee.  We got from the conversation that he was a subcontract cleaner and he was engaged to clean toilets and amenities, yes, but that is it.’

141               As to Mr de los Reyes’ detailed affidavit evidence concerning the circumstances of the critical coffee shop meeting, Mr McGahan did not appear in his purported responses thereto at least explicitly to deny thereby that he (Mr McGahan) had simulated the alleged axe chopping motion identified by Mr de los Reyes.  Mr McGahan asserted however that ‘I did not at any time have a conversation with Mr de los Reyes about his union membership.  I was never interested in that.  What I was concerned about was whether or not he had the required documentation under the NSW Workers Compensation and Occupational Health and Safety laws to operate a company, if he was operating a company on site’.  There was not identified by the respondents what specific occupational health and safety prescriptions Mr McGahan may have had in mind.  I would have thought that once it was apparent to Mr McGahan that Mr de los Reyes had become, full time, an employed construction worker on the site, a situation assured to him at the coffee shop meeting, and correctly so on the basis of the evidence place before me, that should have terminated whatever might have been Mr McGahan’s concerns. 

142               The remaining affidavit evidence tendered by the respondents was that of Mr Glass, who described his occupation as that of a union official.  That affidavit evidence contained many observations of no material or significant consequence, directly or indirectly, to the critical issues falling for resolution.  I will endeavour to summarise below only those matters conceivably of significance. 

143               Mr Glass spoke in his affidavit of receiving a telephone call from Mr Blevin ‘about Mr de los Reyes’ presence on site’, recalling in particular the information conveyed to him that ‘…Mr de los Reyes was there as a contractor but did not hold relevant documentation such as evidence of a workers compensation and public liability policy’, being information said by Mr Glass to have been requested by Mr Blevin, but not subsequently provided.  Mr Glass expressed the view in his affidavit that Mr de los Reyes was mistaken to the extent that he did not need a workers compensation policy, and asserted that Mr de los Reyes had been ‘on the site for three months without such a policy’.  He did not detail, much less purport to rationalise, any viable basis in law for those generalised, if not also somewhat vaguely framed, assertions on his part.

144               Mr Glass next addressed the affidavit account of the critical coffee shop meeting given by Mr de los Reyes’ affidavit, and testified as follows:

(i)         ‘the discussion at the meeting was about Mr de los Reyes having workers compensation insurance coverage’, the Union’s concern being ‘whether or not he was a direct employee or a sub-contractor, and if he was a sub-contractor why he did not have the relevant paperwork which sub-contractors require to comply with relevant OHS and workers compensation law’; (I interpose to record that Mr Glass did not specify precisely what he meant by ‘relevant paperwork’, nor did he identify what he meant by ‘relevant OHS’, or which particular provisions of the ‘workers compensation law’ he had in mind as being the subject of need for compliance by Mr de los Reyes); and

(ii)        Mr McGahan did not say at the coffee shop meeting to Mr de los Reyes ‘you know the rules in the building industry.  You have to join the Union’.

145               Mr Glass reviewed the principal affidavit of Mr Yee at some length.  I will refer below mainly to those aspects of that review which involved circumstances of potential relevance to the issues arising in the proceedings. Much of what Mr Glass set out in his affidavit had seemingly insignificant bearing upon the critical issues which I am ultimately required to resolve.

146               Mr Glass disclosed that he originally asked Mr Yee to employ Mr Blevin, and further that he said to Mr Yee, ‘something like’ to the effect that the advantage to Bakkante, by so doing, was that Mr Blevin would be on hand to resolve site issues ‘proactively’, and so that ‘there would not be any problems on site’; he denied that he was ‘insistent’ that Bakkante should employ Mr Blevin; Mr Glass gave detailed evidence as to his involvement on the Bakkante site in the wake of the financial collapse of Lecan, and the adverse financial consequences thereby to subcontractors and their employees, which was peripheral to the issues I am required to resolve. 

147               Addressing then Mr Yee’s account of the controversial coffee shop meeting, Mr Glass responded in his affidavit as follows:

(i)         he agreed that Mr McGahan asked questions about the status of Mr de los Reyes on the site, that is, as to whether or not he was a director of his own company or a direct employee thereof, and whether he held the required workers compensation and public liability insurances in respect of the company’s activities;

(ii)        he asserted that Mr de los Reyes ‘was called to the meeting because of Mr Yee’s inability to answer Mr McGahan’s questions’;

(iii)       he asserted that Mr McGahan ‘did not take out a white form’ (ie what has been identified already as a CFMEU membership application form), and that ‘[t]here was no mention during the conversation of union membership’;

(iv)       he further asserted that ‘we never stopped Mr de los Reyes from working’, but that ‘we did ask for proof that he had the relevant insurances and could provide time and wage books’; and

(v)        he agreed that ‘Mr Yee told us that Mr de los Reyes was an employee’, but added ‘neither Mr Yee or Mr de los Reyes had provided any evidence to confirm that Mr de los Reyes was an employee or a subcontractor’, and further that ‘Mr McGahan and I sought proof of Mr de los Reyes’ status either way… [w]e did not say at any time he was unable to work’.

Of course as already indicated, practical proof by way of payment of wages or salary was not by that time feasible, given that Mr de los Reyes’ first week’s payment of wages was yet to become payable.

148               Mr Glass accepted that he subsequently attended the construction site, though he could not remember the exact date, and said that Mr Yee then gave him a copy of Mr de los Reyes’ tax declaration form, and also so-called C+BUS and ACIRT and Cover Force documents, and that Mr Yee did not mention anything to him at that later time about union fees; he denied saying to Mr Yee on that later occasion ‘I don’t see any problem with Rodney returning to work’, and asserted that what he next did was to look at those documents, and to say words to the effect ‘[t]hat looks fine’, and then to leave the construction site.  Mr Glass exhibited to his affidavit a copy of a form of ‘tax file number declaration’, purportedly signed by Mr de los Reyes and bearing date 20 November 2002, and the signature of a so-called ‘payer’ bearing date 25 November 2002, being a copy which was apparently retained by Mr Glass; Mr Glass thereafter repeated that he ‘never spoke to Mr Yee about Mr de los Reyes joining the CFMEU’.

149               Further in his affidavit evidence, Mr Glass addressed Mr Zoratto’s affidavit, and again denied that at the coffee shop meeting, Mr McGahan produced ‘a white card’, that is to say, a CFMEU application card.

150               Lastly in his affidavit, Mr Glass exhibited thereto, without any further observation on his part, a letter dated 23 May 2003 from Mr Yee to Mr Blevin, being thus written about six months after Mr de los Reyes had joined the Union.  I set out the text of the letter below, given that the legal representatives of the Union perceived the same to contain some admissions of relevance, which I take leave at least to doubt.  I do not think that I can ultimately draw any conclusions one way of the other from the contents of the letter:

‘I am writing to thank you for your short service in our company.  Although we not have gotten along in the past, I believe that over the recent months we have proven that we can have mutual respect for one another and work together.

I have appreciated your working manner (when you are not doing union related work) and your candid attitude and honesty in relation to our company property.  You certainly have more respect for our tools and equipment than our other employees.

In experiencing the things that I have in my short experience with the union and also working in [the] city I have learnt a lot.  I have certainly learnt that there is a role for the union because of the way that some employers conduct themselves.  I may take issue with some of the levels of pay, but that is understandable being from a business background.

I believe that if more employers were fair and honest with their employees there would not be a need for an active union.  I also believe that the union organisation can be fairer in the way they conduct themselves especially with their members, a vote is [a] vote and it should be cast by the individual based on their attitude, not by coercion by either union or employer.  I have tried my best to maintain this in my dealings.

I for one believe that you are a person of principal (sic) and one should always try to conduct themselves in such a way.  I believe (but I may be wrong) that you bark for the union but that you are a reasonable person outside your union frame.

I was wrong to say (at the start) that the only reason I employed you was because the union said so.  It was true but I should have reserved my comments and seen how you could perform before I judged you.  Maybe things would have been much different.

In summary please leave thinking that I do respect you although you have put me through much personal anguish and anxiety.  Whatever should happen in the future know that it was circumstances that led towards the events and on time will se [sic] how it plays out.

I wish you the best in your future.  There is no doubt that we will meet again.  I hope it will be on better terms.  I have not had a chance to get that ‘going away present’ for you but you will get it in the mail.  Nothing sinister just a book that I think you should read.

Take care and don’t be too hard on the next chap.’

151               In the course of precisely framed cross-examination by senior counsel for the applicant as to what occurred at the critical coffee shop meeting in Pyrmont in the vicinity of the Bakkante construction site, Mr Glass provided the following responses:

(i)         he and Mr McGahan journeyed from the Union’s city office located in Wallworth Avenue to the Pyrmont coffee shop, pursuant to Mr Blevin’s request ‘… to come down to the site to, if you could, follow through and get the relevant paperwork off the contractor in relation to his workers’ compensation’, that request was made, implicitly by telephone call from Mr Blevin, on the same day as the coffee shop meeting occurred; he did not indicate that any prior notice was given to Bakkante to assemble in advance any such ‘paperwork’;

(ii)        he denied that Mr McGahan said to Mr de los Reyes at the meeting ‘you know the rules in the building industry, you have to join the union’;

(iii)       he further denied ‘that there was discussion about Mr de los Reyes not being a member of the union…’, and in particular, that Mr McGahan said words to the effect that ‘if you want to work in the construction industry you have to join the union’;

(iv)       in response as to whether Mr McGahan said to Mr de los Reyes ‘well, if this is going to be the case then the axe is going to go down’, he derived that there was any conversation about the union ‘whatsoever’;

(v)        there ‘didn’t happen any conduct or action of Mr Gahan of handling a CFMEU white union membership application form, and of his stating to Mr de los Reyes ‘why don’t you join the union’, and of Mr de los Reyes replying in that context ‘I’m already in another union and I’ve been there before, I don’t really want to join the union’, and of Mr McGahan then saying ‘Okay, if you don’t want to join the union that’s fine…’;

(vi)       ‘It was more to do with Mr de los Reyes whether he was a contractor or a direct employee of the builder.  That’s what it was about’;

(vii)      It was ‘not at all’ the purpose of the coffee shop meeting ‘… to deal with the issue of Mr de los Reyes’ non-membership of the union’; and

(viii)      ‘raising the question of Mr de los Reyes workers’ compensation and public liability and the like’ was not ‘to place pressure on him to join the union…’ or to ‘place pressure on Mr Yee to remove Mr de los Reyes if he didn’t join the union’.

Once again it may be observed, if the purposes of the journey from the Union offices to the vicinity of the Bakkante construction site were to obtain ‘the relevant paperwork’, why was prior notice to that effect not apparently given to Mr Yee on behalf of the Union? 

152               Mr Glass stated or disclosed the following matters in the course of his cross-examination, he being the last of the respondents’ to be cross-examined:

(i)         he had responsibility for the Pyrmont area and the subject site in particular, and that he and Mr McGahan worked together;

(ii)        on the occasion in question, Mr Blevin ‘… asked us to come down to the site… follow through and get the relevant paperwork off the contractor in relation to workers compensation’;

(iii)       he denied ‘definitely’ that Mr McGahan said at the meeting ‘You know the rules in the building industry; you have to join the union’;

(iv)       he further denied that ‘there was discussion about Mr de los Reyes not being a member of the union’, or that such ‘was part of the concern that Mr Blevin had raised with you when he contracted you’; and

(v)        he further denied having ‘had any discussion with Mr Blevin in the recent past about anything to do with this case’.

Particularly in relation to that latter question, Mr Glass’s answer was in my judgment clearly beyond credulity.

153               Mr Glass thereafter gave the following further evidence under cross-examination:

(i)         he denied that there was said by Mr McGahan at the coffee shop meeting words to the effect that ‘if you want to work in the construction industry you have to join the union’;

(ii)        he asserted that ‘There was no conversation about the union whatsoever’;

(iii)       he denied a white CFMEU membership application form was produced by Mr McGahan at the meeting and passed towards Mr de los Reyes;

(iv)       after Mr de los Reyes left the coffee shop meeting, he admitted that there was conversation on the subject as to whether Mr de los Reyes was a contractor or a direct employee of Bakkante;

(v)        he denied that the purpose of the meeting was ‘to deal with the issue of Mr de los Reyes’ non-membership of the Union’; and

(vi)       he further denied that the purpose of raising the question of Mr de los Reyes’ workers compensation and public liability ‘and the like’ was to place pressure on him to join the Union.

My conclusions as to infringement of s 298P(3) of the Act

154               The evidence, both on affidavit and viva voce, has been necessary to record in considerable detail, by reason of the inherent nature of the cause of action, and of the complexity of the evidence tendered in the proceedings.  It discloses in my judgment that contrary to the objects of Part XA of the Act set out in s 298A thereof, the respondents conducted themselves in a manner principally designed to deny the freedom of Mr de los Reyes to withhold from joining the Union. 

155               In the events which I have already recorded, Mr de los Reyes ultimately became a member of the Union, the employer Bakkante making payment of his first annual subscription of trade union fees on his behalf.  Prior to Mr de los Reyes acquiescing in that course, implicitly by his conduct, he had voluntarily absented himself from his place of employment, being Bakkante’s construction site, without payment of wages, rather than submit to the demands of the respondents that he become a member of the Union, being demands communicated to him predominantly in the course of the coffee shop meeting, to the extent that he attended the same. 

156               Prior to Mr de los Reyes becoming a member of the Union, the evidence discloses that at least by the time of the coffee shop meeting, which was attended by Messrs Blevin, McGahan and Glass as officers etc of the Union, on the one hand, and Messrs Yee, de los Reyes and Zoratto as employees of Bakkante on the other hand (Mr Yee being as well of course an executive officer of Bakkante), Mr McGahan, in the presence and with the implicit concurrence of Mr Blevin (and for that matter also of Mr Glass), advised, encouraged and incited Mr Yee, in his capacity as an executive officer (if not the chief executive officer) of Bakkante, by the clear implication of his words and actions, to dismiss Mr de los Reyes from Bakkante’s employ.  As a necessary consequence, Mr de los Reyes was thereby injured in his newly established employment by Bakkante, and his position as an employee of Bakkante altered to his prejudice, and any further employment of Mr de los Reyes by Bakkante was denied to him, in each case in contravention of s 298P(3) of the Act, unless Mr de los Reyes would become a member of the Union.  I have hence made those findings above in favour of the applicant in relation to the operation of, or by reference, to s 298P(3) of the Act, upon each of the elements of s 298K(1). 

157               The basis for those findings in summary is to be found in the evidence I have extracted or summarised, necessarily in detail, from both the affidavit and viva voce evidence respectively presented to the Court by the parties.  The nature of the subject statutory contraventions the subject of the proceedings is such that for an applicant for relief to demonstrate any committal of those contraventions to the satisfaction of the Court, in line with the Briginshaw test, it became inherently necessary in the circumstances of the case for the applicant to provide the Court with a substantial amount of evidentiary material.  It has consequently become appropriate and unavoidable for the Court to reflect that extensive material in considerable detail.  It has not been a proceeding where the main issue involved may be largely resolved upon the basis of documentary material. 

158               I find that the first instance of alleged breach of s 298P(3) of the Act occurred on 26 November 2002 on the Bakkante construction site in the circumstances described in [77] above.  That breach involved the threat by Mr Blevin directed to Mr Yee of ‘trouble’, if Mr de los Reyes would not become a member of the Union.  In making that finding, I accept the testimony of Mr Yee bearing upon the incident as essentially accurate, and soundly based within factual context which Mr Yee recorded in his evidence.  Whilst Mr Yee said that Mr Zoratto was present on that occasion, and Mr Zoratto’s testimony did not include any specific recall of Mr Blevin’s threat of ‘trouble’ as claimed by Mr Yee, nevertheless Mr Zoratto’s testimony as to the subsequent pre-coffee shop incidents, summarised in [78] above, referred to demands made by Mr Blevin at least for information about Mr de los Reyes’ ABN number and his insurances and wages book, inferentially made prior to the coffee shop meeting.  Mr Osmankerim’s evidence relating to on-site pre-coffee shop dialogue involving Mr Blevin is more proximate, in content of narrative, to Mr Yee’s pre-coffee shop evidentiary account.  Mr Blevin’s denial of making the threat to Mr Yee on that occasion should not be accepted, for the reasons which I have recorded and explained in [99]-[113] above, and also in [115]-[118] above, in so far as that evidentiary material related to the pre-coffee shop conversations, and related incidents, on the Bakkante building site. 

159               It is apparent from what I have concluded above, concerning Mr Blevin’s pre-coffee shop behaviour, that I am unable to accept the substance of Mr Blevin’s evidence in relation to his denial of the alleged proscribed conduct on his part occurring prior to the coffee shop meeting.  In that regard, the evidence of Mr Yee is to be preferred as the significantly more credible.  I regret to say that Mr Blevin’s responses in the witness box under cross-examination, which I have recorded, for instance in relation to pre-coffee shop events in controversy, were characterised by somewhat intemperately expressed denials, unprovoked by the carefully and politely presented cross-examination on the part of senior counsel for the applicant.  Mr Blevin’s responses were also characterised by the unwarranted exploitation of perceived opportunities, presented in the course of his cross-examination, to advocate the respondents’ cause in the proceedings.  I am obliged to characterise Mr McGahan’s to a similar extent. 

160               By way of contrast, my observation of Mr Yee and my reception of his testimony, in relation to the pre-coffee shop events of controversy, was conversely that his testimony did not reflect the shortcomings I have distilled in these reasons in relation to Mr Blevin’s testimony in relation to those events.  Moreover Mr Yee’s testimony draws some implicit support from the only pre-coffee shop written record relating thereto tendered in the proceedings – see again [77] above in that regard.

161               Before coming to the findings which I am obliged to make in relation to the critical coffee shop meeting, it is necessary that I record some further findings concerning the various accounts as to the pre-coffee shop circumstances.  In advancing critical observations concerning Mr Blevin’s conduct, I acknowledge, as I have also done elsewhere in these reasons, that as an on-site representative of the Union on a large construction worksite, he had an important function to discharge by reference to work safety precautions for workmen physically on site, and no criticism could rightly be made in respect of any bona fide endeavours on his part in exercising that function.  The inherently or potentially dangerous condition of major building worksites in Sydney has received a substantial amount of public attention, particularly in more recent times.

162               There is material available from my evidentiary summaries already in place of an inference open to be drawn that Mr Blevin was initially vocal in his opposition to the employment of Mr de los Reyes on the Bakkante project.  That opposition appears to have stemmed at least partly by reason of Mr Blevin’s requests to Mr Yee that an acquaintance of his, being apparently a member of the Union, should have been appointed to the employment position which was taken up by Mr de los Reyes.  A significant aspect of that manifestation of Mr Blevin’s disappointment with the employment preference accorded to Mr de los Reyes involved Mr Blevin’s active opposition to Mr de los Reyes’ operation of the Alimack hoist on the Bakkante site, purportedly on the basis of site safety, Mr de los Reyes not having been ‘ticketed’ to operate the machine.  Significant detriment was occasioned to the respondents’ case by Mr Blevin’s conduct in that regard by reason of further evidence adduced to the effect that immediately after Mr de los Reyes became a member of the Union, the opposition by Mr Blevin to Mr de los Reyes’ ongoing operation of the Alimack hoist was no longer pursued by or on behalf of the respondents.  I have of course already made reference to the evidentiary material relating to the Alimack controversy.

163               Further pre-coffee shop expressions of opposition by Mr Blevin to Mr de los Reyes’ employment by Bakkante, as recorded already in my evidentiary summaries, related to Bakkante’s employment of Mr de los Reyes as a construction worker supposedly on the basis of the ABN taxation regime applicable to independent contractors, despite Mr Yee’s assurances to Mr Blevin to the contrary.  The conclusion which I would draw from the evidence in the proceedings, concerning pre-coffee shop conversations and discussions which I have earlier extracted and summarised, is that efforts were made, by and on behalf of the Union’s witnesses to assimilate or otherwise confuse the income tax reporting regime, applicable from the outset to Mr de los Reyes’ employment full time as a construction worker on the Bakkante building site, with that applicable to his previous part time work on the same site as a cleaner in the employ of his family company Phoenix, that company having operated on the site as an independent contractor.  As Mr Zoratto testified, and I so find, Mr Blevin simply wanted Mr de los Reyes ‘off the job’ (see [68] above). 

164               I have earlier raised, in the course of my narrative of the contentious occurrences involved in these proceedings, a number of adverse observations, and I have also formulated a number of reasons, purportedly for the purpose of criticism and rejection of the evidence of Mr Blevin, whether given by affidavit or viva voce, which I will not repeat, in relation to certain pre-coffee shop occasions.  Perhaps one matter not yet recorded for completeness was his testimony in the course of cross-examination that ‘Union membership… is not overly important’ to him.  I would reject the credibility of Mr Blevin’s assertion in that regard, in the light of what I have recorded as having taken place, at the least prior to the controversial coffee shop meeting.  In summary, and without further repetition of the critical observations and conclusions I have already made or reached (as the case may be) in these reasons, I find myself unable to accept the credibility of the affidavit and viva voce evidence of Mr Blevin, to the extent that it is in conflict with that of Mr Yee and Mr de los Reyes upon the critical matters in issue, and is also in conflict with that of Mr Zoratto (subject to the reservations I have made in that regard as to the accuracy of Mr Zoratto’s recall of pre-coffee shop events) and additionally (if at all) with that of Mr Osmankerim.

165               The questioning of Mr de los Reyes by Mr McGahan at the coffee shop meeting, concerning his supposed engagement on the site as independent contractor, was in my judgment part of a tactical pretext imposed in an oppressive manner upon Mr de los Reyes to become a member of the Union.  I am unable to accept the notion that Messrs McGahan and Glass took the trouble to journey from the city to the Bakkante construction site for any purpose or at least any material purpose, directly or indirectly, other than to secure one of two alternatives.  Those alternatives were that Mr de los Reyes either become a member of the Union, or else cease in reality to undertake further building work on the Bakkante construction site.  In the events which happened, the first of those objectives was achieved, in the somewhat enigmatic circumstances I have earlier described in these reasons at some length.

166               In the course of my summarising the evidence in the proceedings relating to the coffee shop meeting, which took place of course in close proximity to the Bakkante construction site, I have made many incidental observations bearing upon certain conflicting evidentiary accounts adduced from those persons present at the meeting, further upon the likelihood of particular evidence being accurate or truthful or probable, as the case may be.  It is unnecessary to reiterate that material.  The respective evidentiary accounts of the dialogue of the meeting, as already summarised in these reasons, appear (though not entirely), in the following passages of these reasons for judgment already formulated, being principally [82]-[86] relating to Mr de los Reyes, [90]-[93] relating to Mr Yee, and [70]-[74] and [79]-[81] relating to Mr Zoratto.  The applicant’s other main witness, Mr Osmankerim, was not present at the coffee shop meeting.  His testimony, as summarised at [66]-[67] above, is consistent with and essentially supportive of the evidence otherwise adduced by the applicant in the proceedings.

167               My summary of the evidence of Mr Blevin has been necessarily more extensive than that of any of the other witnesses who gave evidence for the respondents’ case in the proceedings.  It has been reproduced in detail, partly in [104]-[105] above, where I have made observations upon and criticisms of the substance of the respondents’ case generally, partly in [106]-[114] above in relation to Mr Blevin’s affidavit evidence, and partly in [115]-[119] above in relation to Mr Blevin’s cross-examination.  As appears from material, I have found it necessary to be critical of the reliability, and at times credibility, of much of that material, for the reasons there already appearing.

168               My summary of the evidence of Mr McGahan is also necessarily extensive, because of the scope or breadth thereof, both in its affidavit form and as given in the course of his cross-examination.  Again I have found it convenient for that reason to interpolate a number of separate observations or findings, as the case may be, on the credibility or otherwise of that evidence, in the course of recording those aspects thereof which are material, or potentially so.  Mr McGahan’s affidavit evidence is summarised from [120]-[129] above, and testimony under cross-examination is summarised from [130]-[141] above.

169               My summary of the less extensive evidence of Mr Glass, as to what appeared in affidavit form, is set out from [142]-[150] above, and as to what appears in his cross-examination, from [151]-[153] above.  Again I have interpolated some observations in the course of that summary. 

170               It will be apparent from the views and conclusions which I have made in the course of my summary and review of the respective testimonies of Messrs Blevin, McGahan and Glass, particularly by way of criticism or other adverse observation, that I am unable to accept the credibility of the critical aspects thereof, to the extent that their evidence is subject at least to any major dispute.  I have reached the clear conclusion that in virtually all important or critical aspects, to the extent of conflict or inconsistency between the testimony which I have extensively reviewed on the part of the witnesses who have given evidence for the applicant, and that of each of the two respondents Messrs Blevin and McGahan, together with that also of Mr Glass, the evidence tendered by the applicant is the more accurate, reliable, and credible, and should be accepted for all purposes of resolving the issues arising in the proceedings.  I have been unable to accept as truthful or reliable those material aspects of what each of Messrs Blevin, McGahan and Glass have indicated in their respective testimonies to the Court, to be materially in controversy with the evidence of the respondents’ witnesses, and in particular of Messrs Yee and de los Reyes, except to the extent I may otherwise have indicated in these reasons.

171               It will doubtless have been appreciated, from what I have recorded in these conclusions, that among the major factors bearing upon my conclusion as to the absence of credibility of the respondents’ case are to be identified in the events and circumstances which occurred after Mr de los Reyes’ return to work on the Bakkante construction site as a newly admitted member of the Union.  In short, Mr de los Reyes was treated by the Union, and Mr Blevin in particular, in the context of his resumed employment on the construction site, with equanimity and as a fully fledged and qualified construction worker in the employ of Bakkante, having duties even inclusive as to the operation of the Alimack hoist. 

172               It follows from my foregoing findings and conclusions that the applicant has made out its case for contravention of s 298P(3) of the Act on the part of each of Messrs Blevin and McGahan, and consequently also on the part of the Union (which I have found to have been duly represented by Messrs Blevin and McGahan at all times and for all purposes material to the issues I have resolved).  In short, the respondents and each of them threatened to cause the dismissal of Mr de los Reyes from his employment by Bakkante, and to injure him in his employment by Bakkante, and to alter the position of Mr de los Reyes as an employee of Bakkante to his prejudice, in each case for the reason that he did not propose to become a member of the Union.  To the extent that such impermissible reason is not evident or sufficiently evident as attributable, on the balance of the probabilities, to the respondents and each of them concerning their respective purposes, which I do not think to be the case as a matter of clearly established inference flowing from the findings I have made, I further find in any event that the respondents and each of them were actuated by the foregoing reason, either alone, or as one of their reasons, for the conduct complained of.  In short in that latter regard, I would in any event invoke the presumption that is provided for in s 298V, to the extent that it is necessary so to do to give effect otherwise to my findings in favour of the applicant.

173               It follows that the applicant is entitled in principle to orders as to the imposition of a penalty, and to the payment of compensation to Mr de los Reyes, pursuant respectively to ss 298U(a) and (c) of the Act.  At the request of the respondents, I stand over the granting of any such relief for 14 days, pending the receipt of any submissions in writing by either party in the meantime.

I certify that the preceding one hundred and seventy-three (173) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Conti.

Associate:

Dated:              1 June 2004

Counsel for the Applicant:	JJ Fernon SC
Solicitor for the Applicant:	Australian Government Solicitor
Counsel for the Respondent:	IC Latham
Solicitor for the Respondent:	Taylor & Scott
Date of Hearing:	20-24, 29 October 2003, 27 November 2003, 4-5 December 2003
Date of Judgment:	1 June 2004