FEDERAL COURT OF AUSTRALIA

Construction, Forestry, Mining and Energy Union v Clarke [2006] FCA 245

WORKPLACE RELATIONS – appeal from Industrial Magistrate – charge alleging withdrawal of labour on three occasions – alleged failure to comply with certified agreement – finding of contravention of union and its officers engaged in industrial action for the purpose of supporting or advancing claims against the employer in respect of the employment of employees while agreement in place – no duality in juristic existence of union and members - conduct of members is conduct of union – alleged preventative action by union officials not therefore exonerating – reasons for Industrial Magistrate’s decision not inadequate – no failure to apply Briginshaw standard – no erroneous interpretation of dispute settlement procedure – no denials of procedural fairness

Workplace Relations Act 1996 (Cth) ss 4, 4(1), 4(8), 84, 170LL, 170LT, 170MN, 178, 178(1), 178(4)

Australian Industry Group v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (2003) 130 FCR 524

Briginshaw v Briginshaw (1938) 60 CLR 336

Concrete Constructions Pty Ltd v Plumbers and Gasfitters Employees’ Union (No 2) (1987) 15 FCR 64

Construction, Forestry, Mining and Energy Union v Clarke (2005) 144 FCR 226

Kelly v Construction, Forestry, Mining and Energy Union (1994) 56 IR 373

Rosenberg v Percival (2001) 205 CLR 434

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

Skilled Engineering Limited v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (2001) 108 IR 116

Tesco Supermarkets Ltd v Nattras (1971) 2 WLR 1166

Waterways Authority v Fitzgibbon (2005) 221 ALR 402

CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION, MICHAEL POWELL and WALTER VINICIO MOLINA v MARCUS THOMAS CLARKE

WAD 112 of 2005

NICHOLSON J

17 MARCH 2006

PERTH

ON APPEAL FROM THE WESTERN AUSTRALIAN INDUSTRIAL MAGISTRATE’S COURT

THE COURT ORDERS THAT:

            The appeal is dismissed.

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

ON APPEAL FROM THE WESTERN AUSTRALIAN INDUSTRIAL MAGISTRATE’S COURT

REASONS FOR JUDGMENT

1                     This is an appeal from the judgment of the Industrial Magistrate’s Court (‘the IM Court’) on 28 April 2005.  By the orders the IM Court imposed a penalty of $6000 on the first appellant (‘the Union’), $1500 on the second appellant (‘Mr Powell’) and $1000 on the third appellant (‘Mr Molina’).  The respondent to the appeal (‘Mr Clarke’) is an inspector appointed pursuant to s 84 of the Workplace Relations Act 1996 (Cth) (‘the Act’) who brought the action against the appellants.  He claimed that they were in breach of the provisions of s 170MN of the Act in that they engaged in industrial action contrary to the terms and conditions of a certified agreement.  The Industrial Magistrate (Mr WG Tarr) held that the appellants did engage in industrial action for the purpose of supporting and advancing claims against the employer as claimed and therefore that they were in breach of s 170MN of the Act.  It was for that breach that he imposed the penalties, the subject of his orders. 

2                     On 8 August 2005 the Chief Justice determined, pursuant to s 25(5) of the Federal Court Act 1976 (Cth) that this appeal be heard by a single judge:  see Construction, Forestry, Mining and Energy Union v Clarke (2005) 144 FCR 226.

the workplace setting

3                     The employer concerned in the relevant events was Barclay Mowlem Construction Ltd (‘the Employer’).  It was engaged relevantly in concrete, structural and bridge work on the Thornlie Railway Station and bridges.

The Certified agreement

4                     For the purposes of that work the Employer entered into a certified agreement (‘the Agreement’) with the Union pursuant to s 170LL of the Act.  It was certified in accordance with s 170LT of the Act coming into operation on 26 May 2004 and remained in force until 1 July 2005. 

5                     The parties bound by the Agreement were the Employer, the ‘employees of the [Employer] who are engaged on the Thornlie Rail Extension Structural Work Project [‘the Project’], in the classifications detailed in section 3’ of the Agreement (‘the Employees’) and the Union.  The Agreement was stated to have exclusive operation and to be in full and final settlement of all claims during the period of its operation.

6                     Clause 4.5 of the Agreement dealt with ‘Dispute Resolution Procedures.  It read:

‘Where any questions, disputes or difficulties arise, the provisions of this Section shall be applied in resolving the matters, [p]rovided always that work shall continue in the usual manner without loss of time or wages and without bans or limitations so as to allow the steps below to be followed:

4.5.1    Steps

Step One – Notification to Supervisor by Employee

The employee concerned and if requested by the employee, the employee’s elected job representative will raise the matter with the immediate supervisor for resolution.

Step Two – Notification to Superintendent

If not resolved, the employee and the employee’s elected job representative shall raise the matter, with the next most senior Company representative (ie the superintendent).  If not resolved at this stage within reasonable time the matter shall then proceed to the next stage.

Step Three – Notification to Construction Manager

If not resolved, the employee and the employee’s elected job representative concerned shall raise the matter with the Construction Manager.  If not resolved at this stage within a reasonable time, the matter shall then proceed to the next stage.

Step Four – Matters in Dispute to be recorded in writing

If the matter is still unresolved after step 3, then the facts of the matter in dispute shall be recorded in writing with a copy going to the employee, a copy to the elected job representative and a copy to the construction manager.

Step Five – Notification to Organiser of the Union and Company Employee Relations Representative

After the matter has been recorded in writing, then an organiser of the Union and the representative of the Company responsible for employee relations shall receive a copy of the matter in dispute and may meet to resolve the matter.

Step Six – Company Employee Relations manager and State Secretary Meet

If the matter is still not resolved the Company Employee Relations Manger and the Union State Secretary shall meet to attempt to resolve the matter.

Step Seven – Matter to be referred to the Australian Industrial Relations Commission

If still not resolved the matter may be referred to the Australian Industrial Relations Commission for assistance which may include the Commission exercising its conciliation and arbitration powers with respect to the interpretation and determination of any dispute arising [under] this Agreement.  The decision of the Australian Industrial Relations Commission shall he [sic] accepted by all Parties subject to legal rights of appeal. 

It is agreed that the matter may be referred to the Australian Industrial Commission at any stage of the procedure.

Sensible Time Limits to be Allowed

Sensible time limits shall he [sic] allowed for each step and work shall continue as it was prior to the matter being raised.

No Party will he [sic] prejudiced as to any final settlement by the continuance of work.

Matters associated with employee performance and termination of employment shall be progressed in accordance with the Company’s disciplinary procedures.  However these procedures do not prevent an employee from seeking any redress available under the Workplace Relations Act 1996.

The steps in this Section shall not apply to any bona fide safety concern which will be dealt with in accordance with subsection 6.1. Procedure for Dealing with and Resolving Safety Issues.’

7                     Relevantly, provision was also made in cl 7.3 for ‘Job Representatives’.  The clause reads:

‘The Company supports the continuing role for the job representative when requested by an employee in handling of questions, disputes or difficulties in accordance with subsection 4.5 Grievance Resolution Procedure.

Any employee elected to the position of job representative shall be recognised as such by the Company and will have reasonable work time, when mutually convenient, to undertake matters related to employees of the Company, when so required by those employees, in accordance with the procedure outlined in subsection 4.5 of this Agreement.

The Company shall ensure that the Job representative is provided with adequate resources to perform their representative role.’

8                     There were three clauses of the Agreement which at the relevant time were the subject of dispute between the Employer and the Employees (‘the Issues’).  The first related to cl 2.10 which addressed the issue of redundancy.  This clause generally provided for the payment of $60 per week ($65 with effect from 1 December 2004) where the redundancy was occasioned otherwise than by the employee.  The Employees wanted the redundancy provision payable to those Employees who left of their own accord and they wanted redundancy contributions for all Employees to be paid into the Western Australian Construction Industry Redundancy Fund Ltd. 

9                     The second cause of dissension was cl 6.5 which contained provisions applicable in respect of inclement weather.  The Employees wanted these varied to be the same as the inclement weather conditions provided for in cl 21 of the National Building and Construction Industry Award 1990.

10                  The third clause which was the subject of contention was cl 3.7 which addressed the special project allowance.  Clause 3.7 provided for an allowance of $110 per week as follows:

‘Notwithstanding that the site allowance provided for by this Agreement covers all general disabilities and special circumstances arising from construction activities on site, an amount of $110.00 per week worked will be paid as a Special Project Allowance provided, however.  Pro rata entitlements will be calculated as detailed below.’

The clause goes on to provide:

‘For the purposes of pro-rata entitlements, the allowance applicable shall be calculated at the rate of $22.00 per day, Monday to Friday inclusive.’

11                  In respect of the special project allowance, it was the Employees’ position that they should be paid an extra $22 for their work on Saturday, which was a normal working day and the same amount if required to work on a Sunday.

The union

12                  Also of relevance are the registered rules of the Union.  Rule 2(A)(A) deals with the Constitution of the Union and provides that it 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: …’

Then follow a list of particular vocations that fall within the ambit of the Union. 

13                  Subrule 2(A)(b) also provides:

‘Without limiting the generality of any other subrule or paragraph or being limited thereby the Union shall consist of an unlimited number of persons employed in or seeking to be employed in or in connexion with all or any of the industry and/or occupations and/or callings and/or vocations and/or industrial pursuits of the painting and decorating industry in connexion with buildings and structures, plant, machinery and equipment, fences and posts, (commercial, residential, industrial or otherwise), general and ship painting, including the following: …’

Then follow particular descriptions relevant to the general description.

14                  Additionally, subrule 2(B) provides that without limiting the generality of what has been provided before or being limited thereby, the Union also consists of:

‘(1)      workers (other than tradesperson), on any work in or in connection with or incidental to the erection, repair, renovation, maintenance, ornamentation, alteration, removal or demolition of any building.

            For the purpose of this sub-rule (B) building shall include a building-type structure for the purpose of housing persons, goods or workshop equipment (other than mechanical or electrical plant) on a Civil or Mechanical Engineering Site.

 (2)      without limiting the generality of the foregoing, persons eligible for membership of the Union shall include any worker: …’

Then follow references to specific activities such as bricklaying and so on.  Similar expansion occurs in subrules (C)-(J).  The purpose of these clauses is to refer to specific activities of workers under the umbrella of the Union. 

15                  Rule 5 is a definitional rule for the purpose of the Union rules and includes the following:

‘“UNION” shall mean this Union and shall include all its Divisions, Branches, Divisional Branches and/or any other section or part of the Union.

…

“MANAGEMENT COMMITTEE” and/or “EXECUTIVE” shall be synonymous and shall mean the controlling and administrative body of the organ so referred to, ie Division or Branch or Divisional Branch.’

16                  There are also rules for the Union’s Construction and General Division and its Construction and General Divisional Branches.  Rule 49 provides that a member who has been elected to any position in a fulltime capacity shall be employed fulltime and be under the control of the Divisional Branch Management Committee between Divisional Branch Council meetings and shall carry out all instructions of the Divisional Branch Council or Divisional Branch Management Committee in accordance with the Rules. 

17                  Rule 57 provides that shop stewards/job delegates may be appointed by the Divisional Branch Management Committee or appointed by the members in such shop or job.  They receive proper credentials from the Divisional Branch Management Committee.  It is their duty to endeavour to enrol appropriate workers in their respective shops or jobs into the Union. 

18                  Rule 58 provides that should any shop or job steward (among others) be victimised or reasonably supposed to be victimised for carrying out any duties of the Union, the Divisional Branch Management Committee shall take all necessary steps to see that that person’s interests are protected.

the charge

19                  The amended statement of claim which supported the charge of failure to comply with the Agreement and consequent contravention of s 170MN of the Act alleged as follows.  It stated that the Employees had gone on strike on three occasions, namely, 9-11 July 2004 (inclusive); 29 July 2004; and 19-20 August 2004 (inclusive).  It claimed that their conduct was ‘industrial action’ within the meaning of that expression in s 4 of the Act. 

20                  The charge alleged that the Union engaged in the industrial action because it was directly or indirectly a party to or concerned in that conduct by reason of the following conduct.  First, representatives or agents of the Union (including Messrs Powell and Molina) attended meetings of the Employees on 9 July 2004, 29 July 2004 and 19 August 2004 as a consequence of which meetings the Employees commenced the industrial action the subject of the charge.  Additionally, two representatives or agents of the Union had attended meetings on 13 July 2004, reporting back on the industrial action and on 13 August 2004, meeting with the Employees on the site of the Project.  The second category of conduct was that representatives or agents of the Union (being Messrs Powell and Molina) conveyed information and claims relating to the industrial action to representatives of the Employer.  This is said to have occurred on 9 July 2004, 26 July 2004, 29 July 2004 and 19 August 2004.  The third category of conduct was that on 9 July 2004 Mr Powell threatened that he would ‘take the boys out’ when speaking to the Project Manager for the work employed by the Employer.  It was claimed that the threat was intended to mean that the Employees would take industrial action by striking. 

21                  It was pleaded in the amended statement of claim that each of these categories of conduct breached the Agreement.  Further, it was pleaded that the conduct of the Union breached cl 4.5 of the Agreement in that it did not follow the dispute resolution procedure.  In relation to the industrial action on 29 July 2004, it was said that it was taken during the term of the Agreement and for the purpose of supporting and advancing claims against the Employer in respect of the Employees and had been engaged in by each of the appellants in contravention of s 170MN of the Act.

relevant legislative and regulatory provisions

22                  Section 4(8) of the Act provides:

‘(8)      In this Act, a reference to engaging in conduct includes a reference to being, whether directly or indirectly, a party to or concerned in the conduct.’

23                  Relevantly s 170MN provides:

‘(1)      From the time when:

            (a)        a certified agreement; or

(b)       an award under subsection 170MX(3) (which deals with the exercise of arbitration powers on termination of a bargaining period);

comes into operation until its nominal expiry date has passed, an employee, organisation or officer covered by subsection (2) must not, for the purpose of supporting or advancing claims against the employer in respect of the employment of employees whose employment is subject to the agreement or award, engage in industrial action.

 (2)      For the purposes of subsection (1), the following are covered by this subsection:

(a)        any employee whose employment is subject to the agreement or award;

(b)        an organisation of employees that is bound by the agreement or award;

(c)        an officer or employee of such an organisation acting in that capacity.

 (3)      If the employee, organisation or officer contravenes subsection (1), the action concerned is not protected action.

 (4)      …’

24                  Section 178(1) of the Act relevantly provides that where an organisation or person bound by (among other things) a certified agreement breaches a term of the agreement, a penalty may be imposed by the Court or a court of competent jurisdiction (which includes a Magistrates Court).  Maximum penalties are prescribed by s 178(4). 

evidence

25                  The respondent’s witnesses at the hearing were as follows: 

• The respondent;
• Mr SG Obrecht, an employee of WorkSafe Western Australia which is a division of the Department of Consumer and Employment Protection who visited the Project on 9 July 2004;
• Mr A Radalj, civil engineer, a project manager with the Employer from 22 March 2004;
• Mr NK Richardson of BG & E Consulting Engineers as at July 2004 who was a superintendent’s representative at the Project;
• Mr JA Hartley-Turner, senior project engineer at the Project;
• Mr DB Meaney, operations manager for the Employer for just over 10 months; and
• Mr CD Gibson, industrial relations consultant.

26                  The appellants called the following witnesses:

• Mr Powell, who was employed by the Union as an organiser to recruit members on the building sites and to address problems they may have with wages, health and safety issues;
• Mr R Aleknavicius, a crane operator employed by the Employer on the Project, a member of the Union at the time of his testimony;
• Mr Molina, an organiser for the Union;
• Mr PG Levy, a rigger, scaffolder and shop steward with the Employer at the Project; and
• Mr TR Kucera, legal officer for the Union, who stated that he took his instructions from Mr Reynolds, the Secretary of the Union and additionally from time to time acted for individual members in relation to matters.

industrial magistrate’s reasons and findings

27                  After referring to the nature of the claim, relevant portions of the Agreement and issues which had been concerning the Employees in relation to the Agreement, his Honour found that it was not in issue that the Employees who were the subject of the Agreement took industrial action by going on strike and leaving the site (of the Project) on 9 July 2004, 29 July 2004 and on 19-20 August 2004. 

claimants’ case

28                  His Honour said that the claimant’s case was that preceding each decision by the Employees to withdraw their labour a meeting had been arranged and organised by the shop steward, Mr Levy.  All these meetings had been attended by Mr Powell who was accompanied by Mr Buchan (an employed organiser of the Union), Mr Molina and also Mr McDonald (one of the Union’s assistant secretaries).  Each meeting had been attended by Mr Levy. 

29                  His Honour described the evidence of Mr Radalj, the civil engineer and project manager, in the following terms:

‘Radalj gave evidence of the attendance on site of Powell and Buchan on the morning of 9 July 2004.  He said Powell told him he was there to investigate the incident on 8 July 2004 where a truck dumping fill in area B had its tray tip over onto its side.  Radalj described Powell as becoming hot-headed after Radalj had queried Powell’s right to enter the site without giving notice.  He said Powell had told him to “… off” and that “he would come on site when I want to when it’s to do with the boys’ safety’ and when told that there had already been an investigation into the truck incident Powell said he would do his own investigation and stormed out. 

Radalj said he was aware of a meeting of basically the entire workforce and Powell.  The meeting lasted fifteen to twenty minutes and after it finished Powell came back to the office and said the boys are withdrawing their labour.  When asked why, Radalj said Powell told him it was because management had failed to consult about the incident with the truck, the facilities in area D were not up to standard, toilets were not cleaned and there was no first aid box in area D.  It was Radalj’s view that the issues were of a minor nature and could have been readily resolved. 

Relevant to the incident on 29 July 2004 Radalj gave evidence that Powell and Molina came to the site and had a meeting with the workforce.  After the meeting Powell and Molina attended at the site office and raised with Radalj the issues of the $22.00 per day allowance and the redundancy payment.  On that day the workforce left the site after the meeting.

The evidence of Radalj about what took place on 19 August 2004 was that Powell came to the site about 10.00am.  He said:

            “A meeting was held.  The meeting was later transferred outside the gates.  On the conclusion of the meeting Mr Powell came in and spoke to me and basically said that the workforce is out on strike.  I’m not sure if it was one, two or three days.  He identified the reasons why they were going on strike.  … One of them was that I was that I was hassling people on how to do their job; that I was taking money away from people by saying when they can and cannot work; that I was allowing work to proceed in an unsafe area.  I’m pretty sure inclement weather was raised again – about when people can go home.”

On all three occasions the workforce went on strike the entire workforce left the site and it is the evidence of Radalj that they did so without the dispute resolution procedures being applied.’

30                  His Honour then said that it was not his intention to refer in detail to the evidence of the other prosecution (now respondent) witnesses.  He said in relation to that evidence:

‘Generally the evidence leads me to the conclusion that the issues in dispute centred on the special project allowance, redundancy and inclement weather clauses of the agreement and supports the prosecution claim that the dispute resolution procedures were not followed.’

appellants’ case

31                  His Honour described the appellants’ case as being that they had done nothing to encourage the workforce to withdraw their labour but, on the contrary, tried to prevent the strike and direct the workforce towards the dispute resolution procedures.

32                  He described the evidence of Mr Powell.  In relation to 9 July 2004, his evidence was that he had told the meeting that the dispute resolution procedures should be followed; they should remain on the site (of the Project) while the dispute resolution procedures were gone through.  Nevertheless the workforce had voted to go on strike for the day.

33                  In relation to 29 July 2004, Mr Powell’s evidence was that he had told the employees that there was an Agreement in place and the conditions of that Agreement had to be worn. 

34                  In relation to 19 August 2004, Mr Powell’s evidence was he had attended the meeting at the request of the shop steward.  He testified that he had told the meeting of the need to follow the dispute resolution procedure. 

35                  His Honour said that Mr Aleknavicius had given evidence that on 9 July 2004 Mr Powell had told the Employees that it was in their best interest to stay at work because it was a safety issue. 

36                  In relation to 29 July 2004, Mr Powell had told the meeting that he still wanted to try and negotiate with the Employer at that stage and he believed that if they had time they could negotiate a bit more.  However, the Employees voted to go on strike.

37                  The evidence of Mr Molina was referred to in relation to the evidence Mr Levy.  It was said by his Honour that his evidence generally supported the appellants’ position that the workers withdrew their labour of their own volition, notwithstanding being advised of the Agreement and Mr Powell’s advice to the contrary.  Mr Levy also gave evidence that it was he who arranged for the Union officials to attend the site (of the Project) each time and was instrumental in gathering the Employees for the meetings, including collecting them from site areas. 

industrial Magistrate’s reasoning

38                  His Honour said the issue in the proceedings was not whether there had been a breach of the Agreement, but whether the breaches were by the appellants. 

39                  He found that the issues of concern to the Employees and the Union and its hierarchy and officers were the three issues of special project allowance, the redundancy provision and the inclement weather clause.  These had become a concern soon after the Agreement had been certified on 26 May 2004.  He understood the evidence to be that all workers on the site were aware of the Agreement before accepting employment. 

40                  His Honour then found that on any construction of the Agreement the action of the workers on the three occasions they withdrew their labour and left the site was in breach of the provisions of the Agreement.  He found the evidence did not support any claims that the industrial action was based on a reasonable concern by the Employees about an imminent risk to his or her health or safety as provided for in s 4 of the Act.  He therefore concluded they had withdrawn their labour in pursuance of their claim in relation to the three issues identified. 

41                  In relation to the claim by the appellants that they played no part in the industrial action taken by the Employees, his Honour considered that claim could not be substantiated on the evidence.  In his view there was an irresistible inference that the Union by its officers played a significant part in the activities which led to the withdrawal of labour and in turn the breach of the Agreement. 

42                  He also found that there was no evidence of any bona fide attempt by the Union to follow the dispute resolution procedures of cl 4.5.

43                  Referring to s 170MN of the Act, his Honour said that all three appellants were covered by the section.  He found that the industrial action was for the purpose of supporting and advancing claims against the Employer. 

44                  His Honour then referred to s 4(8) of the Act and continued:

‘In this case the union by its officers including its organisers and site steward called, arranged and attended the three meetings which resulted in the withdrawal of labour.  They had direct involvement in the industrial action and, in my view, at least with the knowledge of the outcome of the meeting on 9 July 2004, it was foreseeable that a similar outcome was likely following the next two meetings as the three issues had still not been resolved and the union had not engaged in the steps provided for in the dispute resolution procedure.

I find therefore the Respondents did engage in industrial action for the purpose of supporting and advancing claims against the employer herein as claimed and the Respondents are in breach of section 170MN of the Act.’

grounds of appeal

45                  There are 22 grounds of appeal referred to in the notice of appeal, many containing a number of sub-grounds.  At the request of the Court the appellants have grouped these grounds and it is proposed to address the grounds of appeal in accordance with that grouping. 

whether conduct of union members is conduct of appellants: grounds 2, 3, 4, 5, and 21

46                  These grounds are directed to the correctness of the conclusion of his Honour finding that the appellants were liable for contravening s 170MN of the Act.  They are directed specifically in the conclusion of the Industrial Magistrate that there was an irresistible inference that the Union, by its officers, played a significant part in the activities which led to the withdrawal of labour and breached the Agreement.

47                  The appellants submit that the evidence left no room for his Honour to conclude there was an ‘irresistible inference’ of involvement in the activities leading to the withdrawal of labour and in turn the breach of the Agreement.  Further, given the undisputed fact that the appellants had taken positive steps to prevent the withdrawal of labour at the meetings of the workforce, it is submitted that a finding of indirect engagement in industrial action was not, in any event, open.  Additionally, it is submitted that it is not apparent from the reasons for decision that the Industrial Magistrate appreciated that the case against the appellants for the contravention of s 170MN of the Act was limited to the industrial action alleged to have occurred on 29 July 2004. 

48                  The appellants also state that as is apparent from the above quoted findings of the Industrial Magistrate in respect of s 170MN, his finding was of direct involvement only and that the reliance on the site shop steward was not a matter pleaded in the statement of claim. 

49                  As has been seen from the earlier reference to the terms of s 170NM, it prohibits industrial action:

(a)                by unions (including officers and employees) a party to, and employees covered by, a certified agreement; and

(b)               taken for the purposes of supporting or advancing claims against the employer in respect of the employment of employees whose employment is subject to a certified agreement; and

(c)                in relation to matters agreed upon in a certified agreement; and

(d)               before the nominal expiry date of the certified agreement as passed,

Australian Industry Group v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (2003) 130 FCR 524 at 533-535 per French and von Doussa JJ.

50                  It was not in dispute that the evidence established that the Employees (including Mr Levy, the shop steward and a member of the Union) who were subject to the Agreement took industrial action, as defined in s 4(1) of the Act, by the cessation of work on 29 July 2004.

51                  There was evidence before the Industrial Magistrate that the industrial action was taken for the purpose of supporting or advancing claims against the Employer in respect of the employment of the Employees whose employment was subject to the Agreement in relation to the Issues.  In his recitation of prosecution evidence given by Mr Radalj and quoted above, the Industrial Magistrate relied on evidence that after meeting with the workforce, Messrs Powell and Molina attended at the Project office and raised with Mr Radalj the issues of the inclement weather conditions and special project allowance.  In recounting evidence given by Mr Powell, the Industrial Magistrate said that he and Mr Molina had attended the Project on 29 July 2004 where the issues raised were about those two matters as well as safety issues.  He further recounted the evidence of Mr Aleknavicius to the effect that the meeting of 29 July 2004 was one which asked Mr Powell to go to talk to management in relation to the same two matters.  Those matters were subject of a provision in the Agreement.  This evidence recounted was but part of the evidential matrix before the Industrial Magistrate entitling him to conclude that the purpose of the meeting was as he found.  There was no basis on the evidence concluding that the Issues were merely ‘matters related to interpretation or the like’.  Indeed, Mr Molina said in cross-examination that the Union was not pursuing extra claims but rather asking for a particular clause to be changed. 

52                  The evidence of the involvement of the Union and of its officers and employees was as follows.

53                  Messrs Powell and Molina as organisers were officers and employees of the Union and were acting in their capacities as officers and employees of it when they went to the Project.  Additionally they were Branch Council delegates.  They represented the Employees and they engaged themselves in the dispute by conveying information from the Employees to the Employer. 

54                  Mr Levy, the shop steward was an employee of the Employer and a member of the Union.  His position was recognised under the rules of the Union (r 57) and in cl 7.3 of the Agreement.  As was said by Wilcox J in Concrete Constructions Pty Ltd v Plumbers and Gasfitters Employees’ Union (No 2) (1987) 15 FCR 64 at 78, the function of a job delegate is to act as the link between the union members on a particular job and management, and to be on the site, the voice of the union.  Consequently, when the job delegate speaks to management about the union position on an industrial matter prima facie he or she speaks for the union.  While Mr Levy was not relied upon in the amended statement of claim, nevertheless the evidence relating to him was part of the evidentiary matrix which required consideration by the Industrial Magistrate.

55                  When the Employees stopped work, went on strike and left the Project on 29 July 2004, it was in relation to claims concerning the Issues.  That is, claims arising under the Agreement.  Mr Powell went and talked to the Employer about the Issues.  He and Mr Molina in their capacity as employees and officers of the Union, came to the Project.  Prior to doing so they spoke to Mr Levy.  Mr Levy in his capacity as shop steward organised the meeting of the Employees.  At the meeting a cessation of work was resolved upon.  At the conclusion of the meeting, Mr Levy in his capacity as shop steward and Union member and Mr Powell or Mr Molina in their capacities as officers and employees of the Union told the Employer that there was to be a cessation of work and actively pursued the issues with that company while the cessation of work continued. 

56                  The position therefore was that Messrs Powell and Molina pursued a resolution to the Issues with the Employer prior to the cessation of work occurring; while the cessation of work was taking place; and until the Issues were resolved to the satisfaction of the Union.

57                  The Industrial Magistrate was bound to apply the provisions of s 170MN.  He was required to take into account the conduct, not only of the Employees but also of the Union and of any officer or employee of the Union.  He was required to do this in the context of the provision in s 4(8) of the Act.  There was abundant evidence, the outline of which appears immediately above, entitling him to reach the conclusions which he did of direct involvement by the appellants in a breach of s 170MN.

58                  That view however requires testing against the issues raised by the next two groupings of the grounds of appeal in particular, relating to the allegedly preventative steps taken by the Union officials. 

effect of steps taken by appellants to prevent industrial action

Error of law in finding of contravention in face of such steps:  Grounds 2, 3, 4(e), 4(f), 4(g), 5(a)-5(c) and 21

Errors of fact in face of such steps:  Grounds 2, 3, 4(a), 4(d), 4(g), 5(d)-5(e), 6, 10, 11, 20(b)-20(d) and 21

59                  So far as these grounds repeat the issues addressed in the preceding ground, they are not further addressed here.  The principle evidence related to these grounds is that said by the appellants to establish that the appellants as the ‘Union’ took positive steps to prevent the withdrawal of labour by the Employees and that the decisions to withdraw labour were those of the Employees.  This submission relies on evidence of actions taken by Mr Powell.  For example, in the examination-in-chief of Mr Aleknavicius he testified that on 29 July 2004 Mr Powell had spoken against the motion to go out on strike and told the workers that he still wanted to try and negotiate with the Employer at that stage. This advice had been ignored. In cross-examination Mr Levy testified that on 9 July 2004, once the vote had been taken to withdraw, Mr Powell had said to the workers that they were going down the wrong path and that they should leave the matters open for negotiation.

60                  The respondent challenges the claim of the appellant that the actions taken in this respect are capable of being characterised as intended to be preventative of the undertaking of industrial action by the workers.  It is said this is so because the evidence demonstrates that Mr Powell, Mr Molina and Mr Levy pursued the Issues with the Employer after the cessation of work began and while it continued.  I accept that there is appropriate evidence that was the case.  In the case of s 178 of the Act, the respondent contends the cessation of work itself was sufficient to establish the liability of the first appellant under that section.  In the case of s 170MN, the respondent relies on the evidence principally referred to in connection with the preceding group of grounds of appeal.

61                  The contentions of the appellants in relation to preventative action can only be of significance if it is open to acceptance that the ‘Union’ (being relevantly the appellants) acted as a separate juristic entity from the Employees.  In my opinion, this simply cannot be the case.  I have set out earlier in these reasons the particulars of the constitutional arrangements of the Union.  Examination of that shows that the Union consists of the Employees.  The Union comprises every part of the Union.  There is no constitutional concept of the Union on the one hand and the Employees on the other hand.  The Employees are as much an integral part of the Union as the officials.  The consequence is that if the Employees make a decision to go on strike, the Union is on strike. 

62                  Once it is understood that a duality of juridical existence is not possible between the Employees and the Union, the evidence falls for consideration in this light.  If officials of the Union did give advice to the Employees that they would be wiser to follow a path of negotiation, that cannot exempt the Union from any liability from the undertaking of industrial action when the Employees embark upon it.  In Skilled Engineering Limited v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (2001) 108 IR 116 at 119 Finkelstein J relied upon evidence of union organisers having been involved in discussions with employer management about the two issues of concern which caused workers to walk off the site, to suggest that they had a role to play in organising the strike.  (There were additional affidavits and a failure to deny the unions were concerned in the strike which supported such an inference being drawn).

63                  Ground 5(c) contends that the Industrial Magistrate was in error in acting on the erroneous principle that the actions of the Employees (the Union’s members) or the site steward could constitute engagement in industrial action by the Union for the purposes of the relevant provisions of the Act.  In argument in reply the appellants relied on Kelly v Construction, Forestry, Mining and Energy Union (1994) 56 IR 373 at 380-381 and Rowe v Transport Workers’ Union (1998) 90 FCR 95 at 112 which in turn cited Tesco Supermarkets Ltd v Nattras (1971) 2 WLR 1166.  The submission is that the provisions at issue in these decisions were ‘widening’ provisions of which there is no equivalent in the legislative provisions in issue here.  The essential point of the submission for the appellants was that the Union is a separate juristic entity so that, absent evidence the Union was authorised to act on behalf of the Employees, the latter cannot be liable for the actions of the Employees.  Added to this was the submission that there was no evidence of membership before his Honour. 

64                  These submissions fall, firstly, because a proper understanding of the Constitution of the Union shows that it is not a separate juristic entity from its members, in this case the Employees.  Secondly, the absence of provisions such as those at issue in Kelly and in Rowe does not mean that the evidence pertaining to the Union cannot establish the nature of its juristic character.  As Cooper J stated in Rowe at 112, it is only after the relevant facts are ascertained that the issue of the conduct of an individual in relation to the body corporate becomes a question of law.

65                  Thirdly, as to evidence of membership, the appellants contend that the evidence of Mr Levy could not be taken into account because he was not the agent or representative of the Union, as they juridically perceive it.  Likewise they contend the evidence of the actions of the Employees was not relevant on the basis this is not conduct of the Union, as they perceive it.  That, in their submission, left the evidence only of Mr Aleknavicius, Mr Powell and Mr Molina.  Of these, Mr Powell on the evidence spoke against the Employees going out. 

66                  However, these submissions are grounded in the error of perception of the Union as juridically separate from its members.  Additionally there was evidence Mr Levy and Mr Aleknavicius were members of the Union who participated in the meetings and left the Project.  There is also their evidence on what the other Employees did.  Their evidence included reference to actions of Employees of the Employer capable of breaching the Agreement.  There was therefore evidence from which the Industrial Magistrate could draw inferences relevant to the finding of a breach.

67                  In short I do not perceive any error of law or of fact by the learned Industrial Magistrate in terms of the issues raised by these grounds.

Lack of reasons for decision:  Grounds 4, 20(a), 21, 22

68                  It is firstly contended that the Industrial Magistrate failed to provide any, or any adequate, reasons for the decision that the appellants had breached the Act.  It is submitted that he failed to examine the evidence with sufficient care or to explain why important parts of that evidence were apparently rejected: Waterways Authority v Fitzgibbon (2005) 221 ALR 402 at [85]-[87].  The appellants argue that the drawing of the ‘irresistible inference’ was vitiated by error as the effect of the evidence was that it showed the appellants had taken positive steps to prevent the withdrawal of labour: Rosenberg v Percival (2001) 205 CLR 434 at 447-448 per McHugh J.  It is further submitted that the resolutions of the Employees were expressions of their will alone.  These submissions cannot be accepted in the light of the above resolution of the juridical character of the Union.

69                  Ground 20 is directed to ‘the extent that the Learned Industrial Magistrate found that Appellants breach section 178 of the Act (which is denied) …’.  I agree with the appellants no such breach was expressly found by the Industrial Magistrate.  Section 178 is a facilitative provision appearing in Pt VIII of the Act relating to compliance.

70                  The adequacy of the reasons of the Industrial Magistrate in relation to issue of breach of the dispute settlement procedure is considered below in connection with other issues concerning that procedure.

71                  Then the appellants contend that the Industrial Magistrate erred to the extent that he found that the appellants had breached s 170MN of the Act on dates other than 29 July 2004.  The appeal was conducted on the basis that the finding was only in respect of that date, so that contention does not require further consideration.

Failure to apply briginshaw v Briginshaw:  Grounds 2, 3, 4, 5 and 6

72                  In Briginshaw v Briginshaw (1938) 60 CLR 336 Dixon J at 362-363 stated that ‘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’ so that where there is a serious allegation such satisfaction ‘should not be produced by inexact proofs, indefinite testimony, or indirect inferences’.  That is, ‘the nature of the issue necessarily affects the process by which reasonable satisfaction is attained’.

73                  The grounds under this head seek to challenge the finding of engagement in industrial action, the reliance on the ‘irresistible inference’, the finding of direct involvement in any industrial action and of the pursuit of the Issues by the appellants.

74                  In my view, this ground adds nothing to the first series of grounds considered in the context of the second grouping of grounds.  For reasons there given, I have found no error in the conclusions of the Industrial Magistrate in respect of the matters raised by these grounds.  There was in his reasoning in that respect no failure to bring requisite care to the evidence upon which he founded his findings and reasoning.  His reasons were not dependent upon inexact proofs, indefinite testimony, or indirect inferences.  I do not consider this ground succeeds.

Erroneous interpretation of dispute settlement procedure:  Grounds 12, 13 and 14

75                  The first of these grounds raises the contention that the Industrial Magistrate erred in his construction of the dispute resolution procedure in cl 4.5 of the Agreement in three ways.  First, he failed to adopt an interpretation which recognised the appellants’ obligations to be involved in the disputations which gave rise to the withdrawal of labour by the Employees.  Second, he failed to adopt an interpretation which required the Employer to reduce the nature of the dispute to writing in step 4 of the clause.  Alternatively, he failed to find that cl 4.5 was ambiguous and not capable of being breached by the appellants.

76                  The starting point for the application of cl 4.5 is the requirement that ‘work shall continue in the usual manner without loss of time or wages and without bans or limitations so as to allow the steps…to be followed’.  It is patent that because of non-compliance with this condition, the appellants did not seek to invoke the dispute resolution procedure.  It was therefore not an issue in the way in which the grounds contend.  The Industrial Magistrate was therefore entitled to conclude that there was no evidence of any bona fide attempt by the Union to follow the procedure.  Accordingly, no issue of the adequacy of his reasons can arise in that respect.

77                  The respondent relies on this cessation of work by the Union to ground, in any event, its liability under s 178 of the Act.  While that section does not have application to Mr Powell or Mr Molina, it is an alternative basis of liability and therefore support for the reasoning of his Honour.

78                  The last of the grounds under this head raises the additional contention that the Industrial Magistrate erred in finding that the Employees withdrew their labour in breach of the Agreement when he should have found that the Employer breached the Agreement by not complying with the steps.  For the reasons given in the preceding paragraph, there is no substance in this ground.

Denials of procedural fairness:  Grounds 15, 16 and 22

79                  The appellants contend that the case was decided on issues other than those pleaded in the amended statement of claim so that there was a denial of procedural fairness.

80                  Clause 6.1 of the Agreement provided a procedure for steps to be taken for dealing with and resolving safety issues.  The first of the grounds in this group asserts that ‘to the extent’ that the Industrial Magistrate found that the appellants breached cl 6.1 of the Agreement he erred in certain respects in fact and law, including denying procedural fairness.  The second asserts that procedural fairness was denied when the Industrial Magistrate relied on evidence relating to rights of entry which was expressly conceded by the respondent as being irrelevant.  The third ground has been addressed above in dealing with the grounds relating to alleged lack of reasons.

81                  The remaining two grounds do not appear to have been further pursued either in oral or written argument.  In any event, they are entirely peripheral to the foundations of the principle conclusion of the Industrial Magistrate in respect of liability under s 170MN of the Act.

Various factual errors:  Grounds 7, 8, 10, 11, 17 and 19

82                  Again, the ‘factual errors’ referred to in these grounds have not been pursued in detail, are in any event caught up in wider issues raised by other grounds or are peripheral to the principle conclusions of the Industrial Magistrate on liability.  Ground 17 asserts that the Industrial Magistrate erred in fact in finding that the Employees withdrew their labour on 9 July 2004 for the sole purpose of pursuing the Issues.  There was evidence upon which that inference was open to be made.

conclusion

83                  For these reasons the appeal against the judgment of his Honour must be dismissed.  In that circumstance the respondent’s notice of contention does not arise for consideration. 

Associate:

Dated:              17 March 2006