FEDERAL COURT OF AUSTRALIA

Ponzio v Multiplex Limited [2005] FCA 1410

INDUSTRIAL LAW – alleged contravention of s 170NC of the Workplace Relations Act 1996 (Cth) – whether action taken with intent to coerce sub-contractor to enter into agreement with a union – whether action could be described as coercive – whether “other action” in s 170NC only concerned with the conduct of parties to the bargaining process – absence of agreement a substantial and operative factor in the decision to exclude sub-contractor

EVIDENCE – admissibility of recorded conversation and interviews – whether evidence obtained illegally or improperly – whether evidence obtained in contravention of s 6(1) of the Surveillance Devices Act 1999 (Vic)

Workplace Relations Act 1996 (Cth) ss 3(c), 170L, 170NC

Evidence Act 1995 (Cth) s 138

Surveillance Devices Act 1999 (Vic) ss 3, 6(1)

Kartinyeri v Commonwealth of Australia (1998) 195 CLR 337, cited

Al-Kateb v Godwin (2004) 208 ALR 124, [2004] HCA 37, cited

Seven Network (Operations) Ltd v Communications, Electrical, Electronic, Energy Information, Postal, Plumbing and Allied Services Union of Australia (2001) 184 ALR 73, [2001] FCA 456, followed

Hanley v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (2000) 100 FCR 530, applied

Laing v Construction, Forestry, Mining and Energy Union [2005] FCA 765, considered

National Tertiary Education Industry Union v Commonwealth of Australia (2002) 117 FCR 114, followed

Minister for Immigration and Multicultural and Indigenous Affairs v SZANS [2005] FCAFC 41, applied

GARY PONZIO v MULTIPLEX LIMITED

VID 381 OF 2004

MARSHALL J

5 OCTOBER 2005

MELBOURNE

THE COURT ORDERS THAT:

1.         The application is dismissed.

2.         Costs reserved.

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

REASONS FOR JUDGMENT

1                     The Building Industry Taskforce, through its inspector Gary Ponzio, complains about certain conduct of Multiplex Limited.  It asserts that Multiplex took action with intent to coerce No Bolt Operations Pty Ltd, a scaffolding sub-contractor, to enter into an industrial agreement with the Construction, Forestry, Mining and Energy Union, known as the CFMEU.  Multiplex denies the complaint.

2                     Multiplex says that it had no intent to coerce No Bolt.  It claims that it was indifferent to whether No Bolt entered into an agreement with the Union.  It says that it replaced No Bolt on a construction site because of likely delays which No Bolt’s involvement on the site would cause.

3                     The Taskforce alleges that Multiplex breached s 170NC of the Workplace Relations Act 1996 (Cth).  Multiplex denies any breach.

The critical issues

4                     The critical issues for determination in this proceeding are:

·                    Did Multiplex intend to coerce No Bolt?

·                    Can Multiplex’s conduct be described as coercive?

·                    Did Multiplex take “other action” as referred to in s 170NC?

·                    In the context of the expression “other action”, is s 170NC only concerned with the conduct of the parties to the bargaining process which may or may not lead to an agreement?

An additional issue dealt with at the conclusion of these reasons is my ruling that certain evidence obtained by Mr Ponzio should be admitted at trial.

5                     For the reasons which follow I conclude that Multiplex had no intent to coerce No Bolt.  Multiplex remained indifferent to whether No Bolt entered into a certified agreement with a Union.  It wished to avoid delay on an already delayed project.  It did not apply coercion to No Bolt and its acts did not constitute “other action” under s 170NC.  Further, s 170NC is only concerned with the conduct of parties to the bargaining process.

The statutory context

6                     Section 170NC prohibits a person from taking or threatening to take industrial action or other action with the intent to coerce another person to agree to the making of a certified agreement in the Australian Industrial Relations Commission.

7                     Section 170NC is found in Div 9 of Pt VIB of the Act.  Part VIB is concerned with “certified agreements”.  Its object is to facilitate the making and certifying of agreements, particularly at the level of a single business or part of a single business; see s 170L.  That object is to be considered within the context of the principal objects of the Act, including that of enabling employers and employees to choose the most appropriate form of agreement for their particular circumstances; see s 3(c).

8                     Topics dealt with by Pt VIB include:

·                    the types of possible agreements;

·                    the process and requirements for the certification of agreements;

·                    the parties to agreements;

·                    the extension, variation or termination of agreements;

·                    the process for negotiating agreements, including the limits of legitimate pressure which the bargaining parties may place on each other during negotiations;

·                    the taking of protected action, during the bargaining process, as a form of legitimate coercive action; and

·                    protected action aside, the inability of the parties to the bargaining process to engage in conduct with intent to coerce another party to the bargaining process.

Intent to coerce

(i)      the decision not to use No Bolt

9                     Multiplex is one of Australia’s largest construction companies.  In January 2004 the Berwick Community Hospital project occupied its attention as the head contractor.  Work on the site had a project cost of $70 million.  About twenty sub-contractors worked on the site and, at its peak, over 300 people worked there.  By late January 2004 the project was 31 days behind schedule. 

10                  Part of the project involved installing louvres.  A louvre is a grille which provides ventilation for a building.  It is inserted at an angle designed to ensure that water does not enter the building.  It is covered with mesh to prevent the entry of birds into the building.  Responsibility on site for installing louvres fell to S.J. Cordell Pty Ltd.  The timetable for the installation of louvres depended on the progress of the construction of the plant room walls.  The plant room walls on the upper level of the building consisted of roofing material.  Before installing the louvres on that level, a roofing contractor had to cut holes in the walls for the louvres to be inserted.

11                  Mr Ben Slater commenced employment with Multiplex in August 2003 at the Berwick site.  As a site co-ordinator, Mr Slater had a relatively junior role on the project.  He answered to the site manager, Mr Julian Padgett.

12                  Mr Padgett had responsibility for the completion of work at the site, in accordance with the construction program plan.  He had responsibility for the management of day-to-day industrial relations and safety issues.  He reported directly to the Project Manager, Mr Robert Pearce.

13                  Mr Padgett asked Mr Slater to be responsible for the co-ordination of the work to be performed by S.J. Cordell. Mr Stephen Cordell is the principal of S.J. Cordell.  After completion of the relevant plant room walls, Mr Slater arranged for Mr Cordell to come on to the site to obtain the correct measurements for the installation of the louvres.

14                  On 14 January 2004, Mr Slater returned to work on the site after the Christmas/New Year break.  He had responsibility to ensure that the last louvre to be installed was in place by Thursday 29 January 2004, so that a mechanical services contractor, known as JLW, could commence the commissioning of the plant room systems on 30 January 2004.  It was very important to the timely completion of the project that the planned work by JLW commence on time.  The existing delay on the project made the 30 January 2004 deadline especially important.

15                  S.J. Cordell had proved to be a difficult sub-contractor for Multiplex.  It had a poor relationship with the roofing contractor caused by occasions on which it arrived on site to install louvres on short notice, requiring the roofing contractor to immediately re-organise its resources to cut holes in the plant room walls.  S.J. Cordell had once prepared a louvre which was the wrong size for the relevant hole.  It also required much assistance regarding basic safety procedures and the obtaining of permits to work on roofs.  S.J. Cordell generally lacked experience concerning the requirements for work on large commercial sites.

16                  Due to the Australia Day holiday on Monday 26 January 2004 and a rostered day off in the building industry on Tuesday 27 January 2004, the first working day in that week was Wednesday 28 January 2004.

17                  S.J. Cordell required the use of scaffolding to insert the last louvre in an upper level plant room wall on Thursday 29 January 2004.  To ensure S.J. Cordell completed its work by 29 January 2004, Mr Slater wanted to have the scaffolding in place by Wednesday 28 January 2004.  He was concerned about S.J. Cordell’s reliability to perform the task properly and on time.  He was also concerned about the possibility of inclement weather, which might have delayed S.J. Cordell’s work.

18                  In the week commencing 19 January 2004, Mr Slater contacted Mr Cordell and told him of the importance of putting the final louvre in place by 29 January at the latest.  He asked Mr Cordell to come on site earlier than 29 January to take the appropriate measurements.  Mr Slater considered that, by not leaving all the work until the Thursday, there would be some latitude to remedy any problems caused by S.J. Cordell’s inefficiency and/or any inclement weather.

19                  In the week commencing 19 January 2004, Mr Cordell came on to the site.  Mr Slater assisted him to obtain the necessary measurements for the installation of the last louvre.  At that time Mr Slater and Mr Cordell agreed that there was insufficient space to enable a scissor lift to access the area, and that scaffolding would be required.

20                  Mr Cordell had the responsibility to organise the scaffolding at S.J. Cordell’s own cost.  During the morning of Friday 23 January 2004, Mr Cordell telephoned Mr Slater and told him that he had arranged for a scaffolding contractor to attend on site on Thursday 29 January 2004 and that he, Mr Slater, should expect a telephone call from the contractor with a view to organising the appropriate “paperwork” for its entry onto the site.  Mr Slater asked Mr Cordell why he had left the organising of a scaffolder as late as 23 January.  Mr Slater asked Mr Cordell if the scaffolding could be erected on the Wednesday.  Mr Cordell replied to the effect that all would be well and that the scaffolding would be erected on the Thursday morning in time for the louvre to be inserted after that.  Mr Slater responded by saying, “I hope the weather is kind to us.”

21                  Mr Cordell engaged No Bolt as the contractor to provide and erect scaffolding.  Its operations manager is Mr Tolly Baharis.  It employs two scaffolders who deliver scaffolding to construction sites and erect it.  When those employees perform work on a building site they are paid in accordance with what Mr Baharis described as “the pattern EBA [Enterprise Bargaining Agreement] that is promoted by the CFMEU”, including payment of the appropriate wage rate, site allowance and clothing allowance.  No Bolt also pays union membership subscriptions for the two scaffolders.  No Bolt is not a party to a certified agreement with the Construction Forestry Mining and Energy Union, but employs the scaffolders pursuant to what Mr Baharis has described as a “common law agreement”.

22                  Before Mr Cordell spoke with Mr Slater on the morning of 23 January 2004 he telephoned Mr Baharis.  Mr Cordell asked Mr Baharis if No Bolt could erect scaffolding on the site.  Mr Baharis said it could do so at 7.00 am on 29 January 2004.  Mr Cordell booked No Bolt to do the job and asked Mr Baharis to telephone Mr Slater about the “paperwork” Multiplex required No Bolt to submit.  The arrangement between S.J. Cordell and No Bolt was verbal with cash or cheque on delivery terms.

23                  At about 1.35 pm on Friday 23 January 2004, Mr Baharis telephoned Mr Slater.  Mr Baharis told Mr Slater that he had been asked by Mr Cordell to erect scaffolding for the installation of the final louvre and that No Bolt planned to come on site on Thursday 29 January 2004.  Mr Slater asked Mr Baharis to send No Bolt’s “paperwork” for Mr Slater to check.

24                  Mr Slater gave evidence that, in this conversation, he asked Mr Baharis if No Bolt could erect the scaffolding on the Wednesday and that Mr Baharis said he could not.  Mr Slater said he then told Mr Baharis that he wanted him on site first thing on the Thursday at 7.00 am to undergo a site induction.  Mr Baharis gave evidence that he was told to be on site at 7.00 am on the Thursday for the induction.  However, he claimed that Mr Slater did not say anything about Multiplex wanting No Bolt to attend on the Wednesday.

25                  Mr Slater was not challenged, in cross-examination, on his version of this telephone conversation.  On the contrary, under cross-examination, Mr Baharis conceded that it was possible that Mr Slater did ask him if No Bolt was able to erect the scaffolding on the Wednesday.  The better view of the evidence is that Mr Slater did ask Mr Baharis to attend on Wednesday, and Mr Baharis responded that No Bolt was unable to do the job until the Thursday morning.  Mr Slater also asked Mr Baharis to come on time because the “guys doing the induction” were “very fussy”.

26                  The “paperwork” referred to in the various telephone conversations consisted of documents evidencing payments made by the relevant contractor to a portable long service leave scheme and a superannuation fund.  Other documents required included certificates of currency in respect of workers compensation and public liability insurance, a job safety analysis and a copy of an enterprise bargaining agreement.

27                  The “induction process” referred to above is conducted by the site’s safety officer.  The induction occurs at 7.00 am on work days and is required for all newcomers on site so that safety aspects of the work can be reinforced.  The evidence reveals that the “paperwork” is forwarded to the CFMEU shop steward who will request that the safety officer not induct employees of contractors who do not have the correct “paperwork”.

28                  Mr Howe was the site safety officer and Mr Pattinson was the CFMEU shop steward.  In Mr Howe’s absence, Mr Pattinson would also perform the safety officer role.  These men also had other roles to perform on site and were particular about inductions occurring on time, so that their other work would not be delayed.  This is what Mr Slater meant by saying to Mr Baharis that they were “fussy”.

29                  After Mr Slater’s initial telephone conversation with Mr Baharis, Mr Baharis sent No Bolt’s “paperwork” by facsimile transmission to Mr Slater.  Mr Slater looked through the “paperwork” and saw that it did not contain any reference to an EBA.  Mr Slater assumed that Mr Baharis had overlooked the topic of the EBA.  Mr Slater had looked through the “paperwork” only to see if all the items that needed to be given to the Site Manager (Mr Padgett) and the Site Safety Representative (Mr Howe) were present.

30                  On seeing that Mr Baharis’ “paperwork” did not refer to an EBA, Mr Slater telephoned him.  He asked Mr Baharis if he had forgotten to send through his EBA.  Mr Baharis said that he did not have an EBA but that he had a common law agreement.

31                  Mr Slater asked Mr Baharis what a common law agreement was.  Mr Baharis said that it was an agreement between No Bolt and its employees.  Mr Slater had never heard, until then, of a common law agreement.  He asked Mr Baharis to hold while he asked Mr Padgett what a common law agreement was.  Mr Padgett did not know, but said he would speak to Mr Pattinson.  He could not do so immediately as Mr Pattinson had left the site for the day.

32                  Mr Slater resumed his telephone conversation with Mr Baharis and told him that he would have to check with a union official to see if a common law agreement was acceptable and that he would get back to Mr Baharis.

33                  After his second telephone conversation with Mr Baharis, Mr Slater went back into the room where Mr Padgett had been when Mr Slater asked him about a common law agreement.  He told Mr Padgett that, in addition to the common law agreement issue, he was unhappy with No Bolt’s inability to attend the site on the Wednesday.

34                  Mr Pearce was present with Mr Padgett when Mr Slater spoke to Mr Padgett about No Bolt.  Mr Pearce recalled Mr Slater saying that a scaffolder contractor could not come on to the site until Thursday.  Mr Pearce said that he told Mr Slater to talk to the contractor about doing the work on the Wednesday as the work was “extremely critical”.  Mr Pearce instructed Mr Slater to obtain the services of another scaffolding contractor who could come on to the site on the Wednesday.  Mr Pearce was unable to recall any discussion about a common law agreement or an EBA.  He gave evidence that his sole reason for telling Mr Slater to get another scaffolder was because he did not want the installation of the scaffolding to be left until the last day, which was the Thursday.  Mr Pearce was not challenged, when under cross-examination, on his reasons for telling Mr Slater to get another contractor.  It was not put to him that he was motivated by No Bolt’s lack of an EBA or its common law agreement with its employees.

35                  Mr Slater gave evidence that when he first entered the meeting room to talk to Mr Padgett (while he asked Mr Baharis to hold), Mr Pearce was present.  The fact that Mr Pearce cannot recall any discussion about a common law agreement or EBA shows that such matters were not as important to him as the importance of the scaffolding contractor attending on the Wednesday.  Mr Slater cannot recall whether it was Mr Pearce or Mr Padgett who asked him to obtain the services of another scaffolder but he recalled the expression “that’s not acceptable” being used and said that this is an expression used frequently by Mr Pearce.

36                  Mr Slater said that he did not speak to Mr Pearce, but only to Mr Padgett, on the issue of the common law agreement.  He did not remember Mr Pearce saying anything about that issue.  Under re-examination, Mr Padgett said that Mr Pearce made the decision to get another scaffolder and the only reason Mr Pearce gave for the decision, at the time, was the issue of doing the job on the Wednesday.  Mr Padgett said that he also told Mr Slater to get some other scaffolding contractor for the Wednesday, for the same reason that Mr Pearce told Mr Slater to obtain the services of another contractor. At that stage Mr Padgett did not know whether the absence of an EBA was a difficulty, nor did he know whether a common law agreement would be acceptable to Mr Pattinson.

37                  Mr Padgett suggested to Mr Slater that he should try to obtain the services of Aluminium Scaffolds.  Aluminium had previously performed work on the site and its workers already had been inducted on site.  Mr Padgett told Mr Slater to telephone Aluminium to see if it could perform the work on Wednesday 28 January 2004.  Although Mr Padgett suggested the use of Aluminium, he left the site for the day before Mr Slater acted on that suggestion.  Mr Padgett was unsure about the precise time when he spoke to Multiplex’s Industrial Relations Manager, Mr Randall Fuller, to find out what a common law agreement was.  However, he considered that he had done so at some stage on the afternoon of Friday 23 January, but that Mr Fuller was unable to assist him with his inquiry.

38                  Before telephoning Aluminium, Mr Slater attempted to contact Mr Cordell, without success.  He intended to tell him about his concerns with S.J. Cordell’s arrangement with No Bolt.  Because he was unable to contact Mr Cordell, Mr Slater decided to deal directly with Aluminium rather than seek to have Mr Cordell engage its services.

39                  At some time between 4.30 pm and 4.45 pm on Friday 23 January 2004, Mr Slater telephoned Mr Mele, the hire controller of Aluminium. He asked Mr Mele to arrange for scaffolding to be supplied to the site and erected early the following Wednesday.  He apologised for the late notice, but told Mr Mele that another contractor was unable to do the job on the Wednesday, and that it did not have an EBA.  Although, under cross-examination, Mr Mele said that Mr Slater didn’t “particularly” mention the lack of an EBA by No Bolt.  The emphasis appears to have been on getting the job done on the Wednesday.  Aluminium completed the required work on Wednesday, 28 January 2004.  Mr Cordell gave evidence that Aluminium erected the scaffolding on the following day.  He is mistaken in that evidence, which conflicts with the evidence of Mr Slater, Mr Mele and Mr Padgett and written documentation from Aluminium showing the work to have been completed on the Wednesday.

40                  At about 4.50 pm on Friday 23 January 2004, a third telephone conversation occurred between Mr Slater and Mr Baharis.  Mr Slater rang Mr Baharis, as a courtesy, to inform him that No Bolt’s services were no longer required on site and to enable it to deploy its resources elsewhere.  Mr Slater decided to contact Mr Baharis after being unable to locate Mr Cordell.  He would have preferred to have Mr Cordell deal with No Bolt.

41                  Mr Baharis, after being told by Mr Slater that No Bolt’s services were no longer required, asked Mr Slater if the decision was taken because No Bolt did not have an EBA.  Mr Slater gave evidence that in this conversation, he said that he had been told by the Site Manager (Mr Padgett) that another contractor had been arranged because No Bolt could not do the work on the Wednesday and because Multiplex was still unsure whether a common law agreement was acceptable.  Mr Slater said that Mr Baharis became upset with him during this telephone conversation and asked for the Site Manager’s name and mobile telephone number.  Mr Slater complied with Mr Baharis’ request and the conversation concluded.  Mr Baharis asked for Mr Padgett’s telephone number because Mr Slater told him that Mr Padgett had asked for another contractor to be arranged.

42                  Mr Baharis gave evidence that Mr Slater did not raise the timing issue in this conversation.  Under cross-examination, Mr Baharis conceded that it was possible that Mr Slater raised that issue.  Having observed both gentlemen give their evidence in the witness box, I consider Mr Slater to be an impeccably honest witness who gave his evidence in an impressive manner.  On the contrary, Mr Baharis was too reluctant to concede the possibility that notes he had made of this telephone conversation may have been slanted in favour of the EBA issue to the exclusion of the timing issue.  Further, Mr Baharis was less convincing in the manner in which he gave his evidence.  For those reasons, insofar as there is a conflict in the evidence between Mr Slater and Mr Baharis, I prefer the evidence of Mr Slater.

43                  At about 5.00 pm on Friday 23 January 2004, Mr Cordell telephoned Mr Slater as Mr Slater was driving home from the site.  Mr Slater told Mr Cordell that there had been a problem with No Bolt’s “paperwork” because of the lack of an EBA and a problem with No Bolt’s inability to perform the work on the Wednesday.  He told Mr Cordell that because of those difficulties he had organised Aluminium to do the scaffolding work.  Mr Cordell asked how much Aluminium would charge.  Mr Slater told him the relevant sum.  Mr Cordell told Mr Slater that he appreciated his efforts in finding another contractor and that No Bolt had informed him that there would be no problem with its “paperwork”.

44                  In his affidavit prepared for the hearing, Mr Cordell claimed that Mr Slater did not mention the timing issue in this telephone conversation.  He also claimed, in the affidavit, that Mr Slater rang him.  Under cross-examination he conceded that it was entirely possible that he rang Mr Slater and that Mr Slater “could have” mentioned the timing issue.  He also said that having the scaffolding work done on the Wednesday relieved him of some of the pressure involved in ensuring S.J. Cordell had concluded its work by the following day.

45                  Having regard to Mr Cordell’s faulty memory about whether the scaffolding was erected on the Wednesday, and having regard to the vague way in which he gave his evidence and the conflicts between his affidavit evidence and his oral evidence, I prefer the evidence of Mr Slater to that of Mr Cordell where there is a conflict between the two.

46                  Mr Slater gave evidence that when he told Mr Baharis, in their third telephone conversation, that No Bolt’s services were no longer required, he had no intention of pressuring No Bolt to make an EBA.  He said that he did not care if No Bolt had an EBA or not.  His only interest in the topic had been his concern whether the absence of an EBA would become an industrial issue with the site safety representative and lead to further delays on an already delayed project.  Mr Slater was not challenged on this evidence.

47                  Mr Padgett said that he recalled Mr Pearce saying something about arranging for the attendance of another scaffolding contractor on site but that, in any event, he, Mr Padgett, told Mr Slater to get someone else to do the job.  Mr Padgett said that he wanted the job done on the Wednesday because of the importance of the louvre being in place by the next day.  He also said that he was concerned about whether there would be a problem with the CFMEU if No Bolt came on site without an EBA.  The avoidance of delay was the pivotal consideration.  He said that he had no intent to coerce No Bolt to enter into an EBA in order to come on the site either at the relevant time or at any time in the future.  He was not challenged on that evidence.

48                  At 8.15 am on Wednesday 28 January 2004, Mr Baharis telephoned Mr Padgett.  At this time, Mr Padgett did not know that Mr Slater had arranged for Aluminium to do the work.  Mr Padgett said that he would find out what was going on and get back to Mr Baharis.

49                  At about 9.00 am on the same day, Mr Baharis telephoned Mr Padgett.  Mr Padgett was, at the commencement of that conversation, still unaware that Aluminium had been engaged.  After asking Mr Baharis to hold, and checking with Mr Slater, Mr Padgett told Mr Baharis that Aluminium “is now going to do the work”.  Mr Baharis pressed Mr Padgett on the issue of the common law agreement and No Bolt’s lack of an EBA.  Mr Padgett said that it was the first time he had “come across this common law agreement business”.  He told Mr Baharis that the work had been given to Aluminium “who happen to have an EBA”.  Later in the telephone conversation, Mr Padgett referred to No Bolt as not having “the right paperwork”.  Mr Padgett told Mr Baharis that No Bolt needed to have an EBA with the CFMEU to come on site.  Mr Padgett said that he was “fairly sure” a common law agreement would not stand up.  He said he would call his office to find out.  In the course of giving his oral evidence Mr Padgett was unsure whether he did make any further inquiries at that stage about whether a common law agreement would be acceptable.  In the later stages of this first conversation, Mr Padgett referred to it being “company policy” that there be “appropriate paperwork” to come on site and that the “appropriate paperwork” includes an EBA.  He also said that Multiplex supported the shop stewards in making an EBA a requirement for entry onto site.

50                  At 1.14 pm on Wednesday, 28 January 2004, Mr Padgett telephoned Mr Baharis.  He told Mr Baharis that it was not Multiplex “who enforced the EBA requirement” but “the Union”. Mr Padgett thereby disavowed any policy by Multiplex with respect to enforcing the EBA issue.

51                  In his affidavit evidence, Mr Padgett said that there was no formal policy position that a contractor needed to have an EBA to come on site.  He said that the construction industry is highly unionised and gave evidence to the effect that industrial trouble would occur if a contractor attempted to come on site without an EBA.

52                  Mr Padgett said that he had no intent to coerce No Bolt to enter into an EBA.  He said that it was not an issue for him when he asked Mr Slater on the previous Friday to arrange another scaffolding contractor for the Wednesday.  He said that, given No Bolt could not attend the site on Wednesday, he was not interested in it coming on site, with or without an EBA.  In his telephone discussions with Mr Baharis, he said that he explained to Mr Baharis that another contractor had been arranged.  He said that he had “not the least interest” in whether No Bolt had an EBA in place “in case on the remote chance the issue arose on another Multiplex site”.  He further said that he did not expect to have “any on-going professional relationship with No Bolt.”

(ii)     the EBA – a substantial and operative factor

53                  Counsel for Mr Ponzio invited the Court to treat Mr Padgett as a witness of the truth.  Mr Padgett gave his evidence in a frank, forthright way and I have no basis to treat his evidence as anything but evidence which was honestly given.  Yet, curiously, counsel invited the Court to dismiss as fabrications the evidence of Messrs Slater, Pearce and Padgett that a decision was made in the late afternoon on Friday, 23 January 2004 to replace No Bolt with a subcontractor who could do the work on Wednesday, 28 January 2004.

54                  Not only was Mr Padgett a witness of the truth but so also were Mr Slater and Mr Pearce.  I accept the evidence of all three witnesses that a decision was taken jointly by Mr Pearce and Mr Padgett, but most authoritatively by Mr Pearce (as the superior in the Multiplex hierarchy) to engage another contractor on the Friday who could perform the work on the Wednesday. 

55                  As a party to the ultimate decision, Mr Pearce decided to dispense with the services of No Bolt solely for the reason that it could not perform the required work on the Wednesday.  His decision was unaffected by the presence or otherwise of an EBA in No Bolt’s “paperwork”.  On that basis, save for what appears below, Mr Ponzio’s case is without foundation.  Multiplex’s decision, as effected through its most senior employee dealing with the issue, was not affected by any consideration as to whether No Bolt had an EBA or not.

56                  However, Mr Padgett, who had the industrial relations management role on site, had a major involvement in the decision to dispense with the services of No Bolt.  Although not as senior as Mr Pearce, he independently gave an instruction to Mr Slater to obtain the services of another contractor.  Further, Mr Slater gave evidence that Mr Padgett made the ultimate decision.  Mr Padgett’s role in so doing blurs the distinction between the primacy of Mr Pearce’s position and the issue as to who made the decision to be rid of No Bolt.  Mr Padgett was not only motivated by the unavailability of No Bolt on the Wednesday.  Mr Padgett was also concerned that No Bolt’s lack of an EBA would cause the CFMEU to refuse to admit it on to the site at the safety induction.  That would mean that the scaffolding would not be erected in time for the louvre to be installed on the Thursday, as planned.  In other words, I consider that the totality of the evidence of the Multiplex witnesses, on balance, supports the view that the absence of an EBA in No Bolt’s “paperwork” was a substantial and operative factor in Multiplex’s decision to exclude it from the site.  However, this proceeding is not one in which the Court is required to determine whether Multiplex took discriminatory action against No Bolt, but one in which it is required to consider whether Multiplex took action with intent to coerce No Bolt to enter into an EBA.

(iii)    the competing submissions

57                  Counsel for Mr Ponzio has contended that Multiplex breached s 170NC by not allowing No Bolt to enter the site or perform work on it, without first entering into an EBA with the CFMEU.  In so doing, he alleged that Multiplex intended to coerce No Bolt to agree to make an agreement with the CFMEU.

58                  Counsel for Multiplex submitted that Mr Ponzio has not established that Multiplex had the requisite intent to coerce No Bolt to make an EBA.  He contended that it is insufficient to show that No Bolt may have suffered some form of discrimination because it did not have an EBA.  He emphasised that counsel for Mr Ponzio did not put to any of Multiplex’s witnesses that they had an intent to coerce No Bolt to make an agreement with the CFMEU.

(iv)    conclusion on intent to coerce

59                  Each of Mr Slater, Mr Pearce and Mr Padgett denied having any intent to coerce No Bolt.  It was a matter of indifference to them whether No Bolt made an agreement with the CFMEU.  Their motivation for replacing No Bolt with another scaffolding contractor was to prevent a further delay to work on the site.  If No Bolt had immediately sought an EBA on 23 January, it would have been too late, as far as Multiplex was concerned, to have No Bolt come on site, given the delays attending an application for certification of an EBA before the Australian Industrial Relations Commission.  At no stage did any Multiplex representative encourage Mr Baharis to obtain an EBA.  Mr Baharis had no inclination to seek an EBA.  No Bolt had operated for many years without an EBA.  There was no realistic prospect of No Bolt contemplating that it would seek an EBA in consequence of the possibility that it would not be allowed to work on the site without one.  There was no interest in No Bolt seeking an EBA.  No Bolt already paid its scaffolders in accordance with the terms and conditions of the standard EBA used by the CFMEU on major construction sites.  Its objection to an EBA appeared to be a matter of philosophical preference that was not reasonably capable of being disturbed and which Multiplex had no interest in disturbing.

60                  When Mr Slater engaged Aluminium and shortly thereafter informed Mr Baharis that he had done so, Multiplex (through Mr Slater) had no interest in No Bolt having an EBA.  It was then totally irrelevant to Multiplex whether No Bolt had an EBA considering that No Bolt was not coming on site and S.J. Cordell’s work was to conclude at the site on the Thursday.  Multiplex had no interest at all in what industrial arrangements No Bolt came to after engaging Aluminium because No Bolt was no longer a relevant entity to the future operations of the site.  Further, apart from some evidence about No Bolt performing work on one Multiplex site in the past, there was no suggestion in the evidence that Multiplex was likely to have any relationship with No Bolt in the future.

61                  Whatever actions were taken by Mr Slater were, in any event, taken on instructions from Mr Padgett and/or Mr Pearce.  Mr Padgett’s telephone discussions with Mr Baharis reveal no intent to coerce No Bolt to make an agreement. In his conversation with Mr Baharis at 9.00 am on 28 January 2004, Mr Padgett told him that the work had been given to Aluminium and that it was already on site.  There was no point, from Multiplex’s view, at that time, in No Bolt having an EBA with the CFMEU.

62                  Multiplex had one concern at this stage.  It wished to avoid further delays on the project.  No Bolt’s form of industrial prescription for its workforce was of no concern to it once Aluminium had been engaged.  Multiplex remained concerned to avoid industrial disruption.  It had no concern about No Bolt’s industrial arrangements or lack of them.

63                  Section 170NC is a penalty provision.  Proof of requisite intent is an integral part of establishing its breach; see National Tertiary Education Industry Union v Commonwealth of Australia (“NTEU”) (2002) 117 FCR 114 at [65], per Weinberg J.  The evidence does not disclose that Multiplex took any action with any intent to coerce No Bolt to make an EBA.  Consequently on that ground alone the application must fail as Mr Ponzio has not succeeded on this issue, being one on which he bears the onus of proof.

64                  Counsel for Mr Ponzio said that the evidence showed that Multiplex has adopted arrangements that are designed to pressure sub-contractors to enter into EBAs or be excluded from building sites.  That is not the question to be determined in this proceeding.  This proceeding is concerned with whether Multiplex intended to coerce No Bolt into making an EBA.  It is not a substitute for a failure to make out such an intention to refer to some general, wider allegation concerning building sites.  This proceeding is not an inquiry into the construction industry.  In any event, the totality of the evidence does not disclose the existence of any policy to pressure subcontractors to enter into EBAs.  In fact Mr Padgett telephoned Mr Baharis at 1.14 pm on 28 January 2004 and disavowed such policy.  Multiplex requires that the appropriate “paperwork” include reference to an EBA only as a means of preventing industrial disputation and consequent delays on its building sites.

No coercive conduct

65                  The above reasoning illustrates that Multiplex did not intend to coerce No Bolt.  Even if Multiplex did have the requisite intent, its acts did not amount to coercive conduct.

66                  As Merkel J said in Seven Network (Operations) Ltd v Communications, Electrical, Electronic, Energy Information, Postal, Plumbing and Allied Services Union of Australia (2001) 184 ALR 65, [2001] FCA 456 at [41], “intent to coerce” under s 170NC involves two elements.  As his Honour said:

“First, it needs to be shown that it was intended that pressure be exerted which, in a practical sense, will negate choice.  Second, the exertion of the pressure must involve conduct that is unlawful, illegitimate or unconscionable.”

67                  The evidence discloses that the actions of Multiplex, in obtaining the services of Aluminium and dispensing with the services of No Bolt, did not involve, in a practical sense, the negation of choice for No Bolt.  No Bolt was in a position to not enter an EBA or enter an EBA as it chose.  If it had told Multiplex that it was going to enter into an EBA when asked about the gap in the “paperwork” it would have made no difference because an EBA would not have been in place by the next week.  No Bolt remained in a position to freely choose what industrial arrangements it would keep or seek, irrespective of Multiplex’s desire to replace it on site.  There was no attempt by Multiplex to overbear, by illegitimate or unconscionable pressure or otherwise, the will of No Bolt.

68                  As Weinberg J said in NTEU at [103]:

“… what is required is an intent to negate choice, and not merely an intent to influence or to persuade or induce.  Coercion implies a high degree of compulsion, at least in a practical sense, and not some lesser form of pressure by which a person is left with a realistic choice as to whether or not to comply.” (original emphasis)

69                  No Bolt had a realistic choice not to enter an EBA.  It made that choice, but a choice to the contrary would have made no difference to its loss of work on the site.

70                  It is unnecessary to consider whether the second element of “intent to coerce”, as referred to by Merkel J in Seven Network, has been established.

“Other action”

71                  Counsel made competing submissions concerning whether Multiplex could be said to have taken “other action” within the meaning of those words in s 170NC(1).  As Weinberg J said in NTEU at [93]:

“The conjunction of the words “other action” with the words “industrial action” is strongly suggestive of an intent on the part of the legislature to limit the scope of what might otherwise be an extraordinarily wide definition of conduct caught by the section.”

72                  Significantly at [95], Weinberg J said:

“The expression “other action” in s 170NC(1)(a) can be given a sensible interpretation if one reads it as including conduct of a kind taken by an employer, or employee or an organisation registered under the Act, which related to the performance of work but is not included within the definition of “industrial action.”

73                  The view expressed by Weinberg J as set out above is compelling.  The scheme of Pt VIB of the Act strongly suggests that where Div 9 prohibits coercive action it refers to coercive action taken by a participant in the bargaining process or a member of a participant organisation and not another entity with no connection to the bargaining process.  Its concern is for fair play in the bargaining process, beyond the realms of protected action.

74                  There is no evidence of No Bolt being engaged in any bargaining process with the CFMEU or the CFMEU being involved in any bargaining process on behalf of its members who are No Bolt employees.  Further there is no evidence of any No Bolt employees seeking to engage in any bargaining process with No Bolt.

75                  Just as Weinberg J considered the Commonwealth to be beyond the reach of s 170NC in NTEU, I consider that Multiplex is beyond the reach of s 170NC in this proceeding.  No Bolt has no bargaining relationship with Multiplex.  Other than No Bolt, the only persons who are capable of being in such a relationship are the CFMEU and/or those employees of No Bolt who are members, or eligible to be members, of the CFMEU.  No such persons are respondents to this proceeding.

76                  The above approach is consistent with the reasoning of the Full Court in Hanley v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (2000) 100 FCR 530 at [44] where the following was said to be the “plain purpose” of s 170NC:

“That section is found in Pt VIB of the Act which establishes a detailed regime for the creation of certified agreements including procedures for their negotiation, execution and certification.  That regime contemplates free bargaining between employers and their employees or organisations of employees and allows the parties to undertake industrial action within a framework created by that Part.  It is consistent with the purposes of Pt VIB to treat s 170NC as proscribing conduct which might result in an agreement which is not the product of free bargaining.”

77                  There is no suggestion in the evidence that any person sought to interfere with free bargaining between No Bolt and its employees.  In fact, No Bolt’s employees were employed under conditions which would have applied had No Bolt entered into a certified agreement with the CFMEU.

78                  Counsel for Mr Ponzio referred the Court to the interlocutory judgment of Ryan J in Laing v Construction, Forestry, Mining and Energy Union [2005] FCA 765.  Counsel submitted that Ryan J “apparently accepted” that the words “other action” in s 170NC included action which was not undertaken by a participant in a bargaining process.  Such action included the cancellation of a contract between a construction company and a subcontractor and the refusal to consider the subcontractor for future work.  There is no indication in his Honour’s reasons that he was finally determining that such action may constitute “other action” for the purposes of s 170NC.  If his Honour did intend to convey that view, with great respect, his Honour erred in not following the judgment of Weinberg J in NTEU without deciding that that judgment was “plainly wrong”, see Minister for Immigration and Multicultural and Indigenous Affairs v SZANS [2005] FCAFC 41 at [38].

79                  In any event, I doubt whether Ryan J in Laing sought to state a wider role for “other action” than had been accepted in NTEU. For example at [41], his Honour said:

“As s 170NC(1)(b) is expressed as an alternative to s 170NC(1)(a), it is open to the applicant, if the allocation of future sub-contracts is regarded as “action” within the sub-section, to plead facts to make out an allegation of refraining, or threatening to refrain from taking that action.” (emphasis added)

80                  Having regard to the foregoing, the application is bound to fail.  Even if, contrary to my view, Multiplex had the necessary intent to coerce No Bolt to make a certified agreement, and that such coercive conduct occurred, such conduct is not industrial action or other action for the purposes of s 170NC(1).

Ruling on the admissibility of evidence alleged to be obtained illegally or improperly

81                  Multiplex sought the exclusion of some of the evidence filed on behalf of Mr Ponzio, pursuant to the exercise of the Court’s discretion under s 138 of the Evidence Act 1995 (Cth).  Essentially, the impugned evidence consisted of tape recordings and transcripts of four telephone conversations and two records of interview.

82                  The relevant telephone conversations were:

·                    At 8.15 am on 28 January 2004, between Mr Baharis and Mr Padgett that was recorded by Mr Baharis, without Mr Padgett’s knowledge.  Mr Baharis used a hands free device for his mobile telephone to conduct the conversation while seated in his motor vehicle, accompanied by Mr Ponzio.  Mr Padgett had no knowledge that Mr Ponzio was present during the conversation.  Mr Baharis recorded the conversation by using a digital recorder belonging to Mr Ponzio, which Mr Baharis had requested that he borrow from Mr Ponzio for the purpose of recording the conversation.

·                    At 9.00 am on 28 January 2004, between Mr Baharis and Mr Padgett, in materially identical circumstances to the previous conversation at 8.15 am.

·                    At 9.50 am on 28 January 2004, between Mr Baharis and Mr Cordell that was recorded by Mr Baharis, without Mr Cordell’s knowledge, while using a hands free mobile telephone to conduct the conversation while seated in his motor vehicle and accompanied by Mr Ponzio.

·                    At 1.14 pm on 28 January 2004, between Mr Padgett and Mr Baharis, in respect of which Mr Baharis made a diary note at the end of the conversation.

83                  The relevant records of interview occurred on 10 February 2004 between Mr Ponzio and Mr Padgett and Mr Ponzio and Mr Slater.  In interviewing Mr Padgett, Mr Ponzio relied on material obtained in the taped telephone conversations of 28 January 2004.  In the course of interviewing Mr Slater, Mr Ponzio failed to caution him that he had a right to remain silent and also relied on the contents of the recorded conversations.

84                  Section 138 of the Evidence Act provides

“(1)     Evidence that was obtained:

(a)  improperly or in contravention of an Australian law; or

(b) in consequence of an impropriety or of a contravention of an Australian law;

is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.

(2)       Without limiting subsection (1), evidence of an admission that was made during or in consequence of questioning, and evidence obtained in consequence of the admission, is taken to have been obtained improperly if the person conducting the questioning:

(a)  did, or omitted to do, an act in the course of the questioning even though he or she knew or ought reasonably to have known that the act or omission was likely to impair substantially the ability of the person being questioned to respond rationally to the questioning; or

(b)  made a false statement in the course of the questioning even though he or she knew or ought reasonably to have known that the statement was false and that making the false statement was likely to cause the person who was being questioned to make an admission.

(3)       Without limiting the matters that the court may take into account under subsection (1), it is to take into account:

(a)  the probative value of the evidence; and

(b)  the importance of the evidence in the proceeding; and

(c)  the nature of the relevant offence, cause of action or defence and the nature of the subject-matter of the proceeding; and

(d)  the gravity of the impropriety or contravention; and

(e)  whether the impropriety or contravention was deliberate or reckless; and

(f) whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights; and

(g) whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention; and

(h) the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law.”

 (i)        no contravention of Australian law

85                  Counsel for Multiplex submitted that the tape recorded conversations were obtained in contravention of an Australian law and that the transcripts and the interview, during which the transcripts were relied upon by Mr Ponzio, were obtained in consequence of a contravention of an Australian law.  The Australian law said to have been contravened was the Surveillance Devices Act 1999 (Vic).

86                  Section 6(1) of the Surveillance Devices Act provides:

“Subject to sub-section (2), a person must not knowingly install, use or maintain a listening device to overhear, record, monitor or listen to a private conversation to which the person is not a party, without the express or implied consent of each party to the conversation.

Penalty: In the case of a natural person, level 7 imprisonment (2 years maximum) or a level 7 fine (240 penalty units maximum) or both;

In the case of a body corporate, 1000 penalty units for a first offence and 2000 penalty units for a subsequent offence.”

87                  “Listening device” is defined in s 3 to mean:

“… any device capable of being used to overhear, record, monitor or listen to a private conversation or words spoken to or by any person in private conversation, but does not include a hearing aid or similar device used by a person with impaired hearing to overcome the impairment and permit that person to hear only sounds ordinarily audible to the human ear;”

88                  “Private conversation” is defined in s 3 to mean

“… a conversation carried on in circumstances that may reasonably be taken to indicate that the parties to it desire it to be heard only by themselves, but does not include a conversation made in any circumstances in which the parties to it ought reasonably to expect that it may be overheard by someone else;”

89                  Counsel submitted that Mr Ponzio contravened s 6(1) of the Surveillance Devices Act by using the hands free telephone facility to overhear, monitor and listen to private conversations between Mr Baharis and Mr Padgett, without the knowledge of Mr Padgett.  Counsel also contended that even though Mr Baharis physically used the digital recorder to record the conversations, he did so at Mr Ponzio’s urging, in circumstances where he could be seen as acting on behalf of Mr Ponzio.  This, counsel submitted, contravened the s 6(1) prohibition against recording a private conversation.  Counsel raised identical contentions in respect of the conversation involving Mr Cordell.  It is only necessary for the purposes of these reasons to focus on the conversations involvingMr Padgett.

90                 After the completion of submissions on the opening day of the trial, on whether the impugned evidence should be admitted, I ruled that I would admit the evidence and give reasons for so doing in the course of these reasons for judgment.  In ruling that the evidence should be admitted I said that I did not consider the impugned evidence to have been illegally obtained.  The reasons for that view are set out below.

91                  One of the parties to the taped conversations, Mr Baharis, did not desire that the conversations only be heard by the parties to them.  Mr Baharis was content for Mr Ponzio to listen to the conversations.  They were not private conversations so far as Mr Baharis was concerned.  When the definition of “private conversation” refers to “the parties”, it contemplates each party to the conversation having a desire that the conversation be heard only by the parties to it.  Whilst the circumstances of Mr Baharis’ taping of the conversations may be seen by some as an invasion of the privacy of Mr Padgett and as involving sneaky and underhand tactics, I do not consider that Mr Ponzio thereby breached the Surveillance Devices Act, even on the assumption (without deciding the point) that Mr Baharis acted as his agent in recording the conversations.

92                  In construing the definition of “private conversation” and in particular the word “parties” the Court is mindful of Art 17(1) of the International Covenant on Civil and Political Rights which provides:

“No one shall be subjected to arbitrary or unlawful interference with his privacy …”

93                  However, as Gummow and Hayne JJ explained in Kartinyeri v Commonwealth of Australia (1998) 195 CLR 337 at [97], a statute will be interpreted in accordance with established rules of international law only “as far as its language permits”.  The “implication that [a statute] should be construed to conform with international law”, although criticised by McHugh J in Al-Kateb v Godwin (2004) 208 ALR 124,[2004] HCA 37 at [65], was said by his Honour to be:

“… too well established to be repealed now by judicial decision.”

94                  The “language” of the Surveillance Devices Act refers to the desire of the “parties” and not to the desire of any one party to the conversation.  The language of the definition of “private conversation” in that respect is unambiguous and conclusive. This is so even in light of the apparent inconsistency between the definition of “private conversation” and the s 6(1) requirement to obtain the consent of each party to the conversation.

95                  The interview by Mr Ponzio of Mr Slater on 10 February 2004 without Mr Ponzio administering a caution to Mr Slater did not mean that the interview resulted in the obtaining of evidence in any illegal manner. 

96                  It has not been established that Mr Ponzio, in the course of his interview with Mr Slater, was obliged by any policy of the Taskforce, or any law, to issue a caution to Mr Slater concerning the use by Mr Ponzio of Mr Slater’s answers during the course of the interview.  The fact that Mr Padgett received such a caution during his interview does not mean that the failure of Mr Slater to receive one results in the transcript of Mr Slater’s interview being inadmissible.

(ii)        no “impropriety”

97                  I also announced, at the conclusion of the submissions concerning the admissibility of the impugned evidence, that, on balance, I did not consider that the impugned evidence was obtained improperly or in consequence of an impropriety.  I have already observed that the circumstances of the recording of the conversations may be seen by reasonable observers as devious and underhanded.  That aspect of the matter gave me some discomfort about admitting the evidence.  However, I considered Mr Baharis, not Mr Ponzio, to be the prime instigator of the gathering of the impugned evidence.  Although Mr Ponzio suggested to Mr Baharis that he should record his conversations with Multiplex representatives, it was Mr Baharis who requested the use of Mr Ponzio’s digital recorder.  But for that request, Mr Ponzio may have expected Mr Baharis to use his “own devices” to record any conversation with Multiplex representatives.  It was Mr Baharis who enlisted Mr Ponzio’s involvement in the recordings and not the other way around.  Mr Ponzio understandably wished to ensure that Mr Baharis returned the digital recorder to him, therefore he stayed in Mr Baharis’s company until the completion of the recordings.  Although I had some misgivings about aspects of Mr Ponzio’s conduct, on balance, for the above reasons, I considered that it had not been established by Multiplex that the impugned evidence had been obtained improperly by Mr Ponzio.

98                  Having formed the view that the evidence had not been obtained illegally or improperly, I did not find it necessary to consider the second stage of the two stage process contained in s 138 of the Evidence Act as to whether(guided by all the factorsreferred to in s 138(3)) the desirability of admitting the evidence outweighedthe undesirability of admitting the evidence.

Order

99                  The application will be dismissed and costs reserved.  Costs are reserved as a consequence of the unopposed request of counsel for Multiplex that such an order be made, in the event that his client succeeded.  The reservation of costs will apply only for 21 days, by which time Multiplex must file and serve written submissions, should it wish to pursue its costs.  In a further 21 days Mr Ponzio should respond in writing.  In the event that no written submissions are received within 21 days of the date of this judgment, the file will be closed.  Liberty to apply is available to each party pursuant to the Rules of Court on 72 hours notice to the other party within 21 days of the publication of these reasons.

Associate:

Dated:              5 October 2005