FEDERAL COURT OF AUSTRALIA

 

Cahill v Construction Forestry Mining and Energy Union (No 2)[2008] FCA 1292

INDUSTRIAL LAW – whether “ban, limitation or restriction on the performance of building work” in paras (b) and (c) of the definition of “building industrial action” in s 36(1) of the Building and Construction Industry Improvement Act 2005 (Cth) covered only action of employees in respect of their work – whether construed by reference to the meaning of “industrial action” in the Workplace Relations Act 1996 (Cth) – “building industrial action” not limited to action of employees in respect of their work

 

PRACTICE AND PROCEDURE – no case to answer submission on parts of the case – whether discretion should be exercised to depart from general rule requiring party to elect not to call further evidence prior to ruling – justice and convenience considered – no election required on statutory construction argument – election required before ruling on remaining parts of no case to answer submission

Building and Construction Industry Improvement Act 2005 (Cth) ss 3(1), 4, 36, 37, 38, 43, 48(2), 49, 57

 Judiciary Act 1903 (Cth) s 79

Crimes Act 1914 (Cth) s 4AA

Evidence Act 1995 (Cth) ss 128, 140

Workplace Relations Act 1996 (Cth) ss 4(1), 298B(1), 420(1)

Acts Interpretation Act 1901 (Cth) ss 15AA, 15AB

Rasomen Pty Ltd v Shell Co of Australia Ltd (1997) 75 FCR 216 considered

Compaq Computer Australia Pty Ltd v Merry (1998) 157 ALR 1 discussed

Australian Competition and Consumer Commission v Amcor Printing Papers Group Ltd (2000) 169 ALR 344 considered

Australian Competition and Consumer Commission v Leahy (2004) 141 FCR 183 cited

Davids Distribution Pty Ltd v National Union of Workers (1999) 165 ALR 550 discussed

Construction, Forestry Mining and Energy Union v Giudice (1998) 159 ALR 1 discussed

Protean (Holdings) Ltd (Receivers and Managers appointed) v American Home Assurance Co [1985] VR 187 followed

Union Bank of Australia Ltd v Puddy [1949] VLR 242 cited

Rasomen Pty Ltd v Shell Co of Australia Ltd (1996) 71 FCR 540 cited

Tru Floor Service Pty Ltd v Jenkins (No 2) (2006) 232 ALR 532 considered

Residues Treatment & Trading Co Ltd v Southern Resources Ltd (1989) 52 SASR 54 considered

William H Muller & Co’s Algemeene etc v EBBW Vale Steel, Iron & Coal Co Ltd [1936] 2 All ER 1363 cited

Briginshaw v Briginshaw (1938) 60 CLR 336 referred to

Trade Practices Commission v George Weston Foods Ltd (No 2) (1980) 43 FLR 55 considered

Popovic v Tanasijevic (No 4) [1999] SASC 351 cited

Prentice v Cummins (No 4) [2002] FCA 1215 cited

Communications Electrical Energy Information Postal Plumbing and Allied Services Union of Australia v Laing (1998) 159 ALR 73 discussed

Australian Builders’ Labourers’ Federated Union of Workers (WA Branch) v J-Corp Pty Ltd (1993) 114 ALR 551 referred to

Temple v Powell [2008] FCA 714 discussed

Leighton Contractors Pty Ltd v Construction, Forestry, Mining and Energy Union (No 4) [2006] WASC 317 discussed

Transfield Construction Pty Ltd v Automotive Food, Metal, Engineering, Printing and Kindred Industries Union [2002] FCA 1413 discussed

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Langley (unreported, 26 February 2004, Federal Court of Australia, BC200404666) discussed

NMHG Distribution Pty Ltd t/as Yale Asia Pacific v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (2000) 104 IR 158 discussed

 

CHRIS CAHILL v CONSTRUCTION FORESTRY MINING AND ENERGY UNION and BOB MATES

VID 198 of 2006

 

KENNY J

4 AUGUST 2008

MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 198 of 2006

BETWEEN:	CHRIS CAHILL Applicant
AND:	CONSTRUCTION FORESTRY MINING AND ENERGY UNION First Respondent   BOB MATES Second Respondent

 

JUDGE:	KENNY J
DATE:	4 August 2008
PLACE:	MELBOURNE

RULING ON RESPONDENTS’ SUBMISSION OF NO CASE TO ANSWER

The proceeding

1                     The applicant, Chris Cahill, is an Australian Building and Construction Inspector appointed under s 57 of the Building and Construction Industry Improvement Act 2005 (Cth) (“the BCII Act”).  He brings this proceeding under s 49 of the BCII Act for the imposition of penalties for alleged breaches by the respondents of ss 38 and 43 of the BCII Act.  At all material times, the first respondent (“the CFMEU”) was an “organisation” within the meaning of the Workplace Relations Act 1996 (Cth) (“the WR Act”) and a “building association” and an “industrial association” as defined in s 4 of the BCII Act.  At all material times, the second respondent, Bob Mates, was an employee and officer of the CFMEU.  The alleged breaches of the BCII Act relate to a building site at 90-100 Mount Street, Heidelberg, Victoria (“the Mount Street site”) in 2006. 

2                     At the close of the applicant’s case on the evening of 17 July 2008, the respondents stated that they wished to make a no-case submission in respect of parts of the applicant’s claims against them.  Whilst there has been judicial disagreement about the source of the Court’s power to hear a no-case submission and the manner in which it should be dealt with, neither issue requires examination in this case.  It is accepted that the Court has power to entertain such a submission: see Rasomen Pty Ltd v Shell Co of Australia Ltd (1997) 75 FCR 216 (“Rasomen”) at 223 per von Doussa, Drummond and Finn JJ referring to O 32, r 4(4) of the Federal Court Rules 1979 (Cth) (“the Rules”) and s 79 of the Judiciary Act 1903 (Cth); and Compaq Computer Australia Pty Ltd v Merry (1998) 157 ALR 1 (“Compaq Computer”) at 6 per Finkelstein J, Australian Competition and Consumer Commission v Amcor Printing Papers Group Ltd (2000) 169 ALR 344 (“Amcor”) at 356-60 per Sackville J and Australian Competition and Consumer Commission v Leahy (2004) 141 FCR 183 (“Leahy”) at 210 per Merkel J referring to O 35, r 1 of the Rules.  The approach is the same, whatever the source of the power:  compare Compaq Computer at 6. 

3                     The respondents were given leave to make their no-case submissions the next day upon the basis that I would defer ruling on whether they should be required to make an election as to the calling of evidence until I had heard further argument.  I explain the reasons for this course below.

The alleged contraventions

4                     Section 43 of the BCII Act relevantly provides:

(1)   A person (the first person) must not organise or take action, or      threaten to organise or take action, with intent to coerce another person (the second person):

(a)          to employ, or not to employ, a person as a building employee; or

(b)    to engage, or not engage, a person as a building contractor; or

(c)      to allocate, or not allocate, particular responsibilities to a building employee or building contractor; or

(d)    to designate a building employee or building contractor as having, or not having, particular duties or responsibilities.

Note:         Grade A civil penalty.

(2)   Subsection (1) does not apply unless:

(a)  the first person is an organisation or a constitutional corporation; or

(b)the second person is a constitutional corporation; or

(c)  the conduct occurs in a Territory or Commonwealth place.

The maximum pecuniary penalty that may be imposed on a body corporate by reason of s 49(2)(a) of the BCII Act is 1,000 penalty units, while the maximum pecuniary penalty that may be imposed on an individual is 200 penalty units.  This equates to $110,000 in the case of a body corporate and $22,000 in the case of an individual: see Crimes Act 1914 (Cth), s 4AA. 

5                     It was part of the applicant’s case that, on 15, 17, 21 and 22 February 2006 (and following), the CFMEU and/or Mr Mates contravened s 43 of the BCII Act. In particular, the applicant alleged that, by their conduct on 15 and 17 February 2006, the CFMEU and/or Mr Mates threatened to take action with the intent to coerce ACN 117 918 064 Pty Ltd trading as Hardcorp (“Hardcorp”) to: (a) employ the CFMEU’s former shop steward (Jason Deans), the former occupational health and safety officer (“OH&S officer”) (Roslyn Singleton) and the former FEDFA shop steward (Aengus O’Donnell) (collectively “the required persons”), all of whom were previously employed at the Mount Street site; and (b) allocate and/or designate to the former OH&S officer (Roselyn Singleton) the responsibilities or duties of the OH&S officer at the Mount Street site.  The applicant further alleged that, by their conduct on 21 and 22 February 2006 and following, the CFMEU and/or Mr Mates organised and took action with intent to coerce Hardcorp at the Mount Street site to: (a) employ the required persons; and (b) allocate and/or designate to the former OH&S officer the responsibilities or duties of the OH&S officer.

6                     The balance of the applicant’s case was that the CFMEU and/or Mr Mates contravened s 38 of the BCII Act.  Section 38 provides that:

A person must not engage in unlawful industrial action.

Note:   Grade A civil penalty.

That which constitutes “unlawful industrial action” is described in s 37 of the BCII Act as follows:

Building industrial action is unlawful industrial action if:

(a)               the action is industrially-motivated; and

(b)               the action is constitutionally-connected action; and

(c)               the action is not excluded action.

The expressions “building industrial action”, “industrially-motivated”, “constitutionally-connected action”, and “excluded action” are defined in s 36(1) of the BCII Act.  It was common ground that the alleged “action” was not excluded action. 

7                     Much of the respondents’ no-case submission turned on the effect of the definition of “building industrial action” in s 36(1) of the BCII Act.  The term “building industrial action” is defined to mean:

(a)        the performance of building work in a manner different from that in         which it is customarily performed, or the adoption of a practice in        relation to building work, the result of which is a restriction or         limitation on, or a delay in, the performance of the work, where:

            (i)         the terms and conditions of the work are prescribed, wholly or              partly, by an industrial instrument or an order of an industrial              body; or

            (ii)        the work is performed, or the practice is adopted, in connection                        with an industrial dispute (within the meaning of subsection                    (4)); or

(b)       a ban, limitation or restriction on the performance of building work, or on acceptance of or offering for building work, in accordance with the terms and conditions prescribed by an industrial instrument or by an order of an industrial body; or

(c)       a ban, limitation or restriction on the performance of building work, or on acceptance of or offering for building work, that is adopted in connection with an industrial dispute (within the meaning of subsection (4)); or

(d)       a failure or refusal by persons to attend for building work or a failure or refusal to perform any work at all by persons who attend for building work;

but does not include:

(e)       action by employees that is authorised or agreed to, in advance and in writing, by the employer of the employees; or

(f)        action by an employer that is authorised or agreed to, in advance and in writing, by or on behalf of employees of the employer; or

(g)       action by an employee if:

            (i)         the action was based on a reasonable concern by the employee                         about an imminent risk to his or her health or safety; and

            (ii)        the employee did not unreasonably fail to comply with a                                     direction of his or her employer to perform other available                            work, whether at the same or another workplace, that was safe                       for the employee to perform.

Note:   See also subsection (2), which deals with the burden of proof of the exception in paragraph (g) of this definition.

In the present case, the applicant relied on paras (b) and (c) of the definition of “building industrial action”.  It is not disputed that the National Building and Construction Industry Award 2000 and the Mobile Crane Hiring Victorian Common Rule Declaration 2005 applied to the building work taking place at the Mount Street site, although neither instrument was in evidence.  The applicant asserted, and the respondents denied, that there was an “industrial dispute” within the meaning of s 36(4) of the BCII Act.  Whilst it may be necessary to consider this issue later, it need not be determined now since it was not part of the respondents’ no-case submission: see [11]-[16] below.

8                     The expression “industrially-motivated” as used in s 37 is defined in s 36(1) of the BCII Act to mean:

motivated by one or more of the following purposes, or by purposes that include one or more of the following purposes:

(a)        supporting or advancing claims against an employer in respect of the      employment of employees of that employer;

(b)       supporting or advancing claims by an employer in respect of the             employment of employees of that employer;

(c)        advancing industrial objectives of an industrial association;

(d)       disrupting the performance of work.

The employer referred to in paragraphs (a) and (b) need not be the employer whose employees do the work to which the action relates. 

In this case, the applicant particularly relies on para (d) of this definition.

9                     At the relevant time, the expression “constitutionally-connected action” was defined in s 36(1) of the BCII Act to mean:

building industrial action that satisfies at least one of the following conditions:

(a)               the action is taken by an organisation;

(b)               the action is taken by a constitutional corporation, or adversely affects a constitutional corporation in its capacity as a building industry participant;

(c)               the action is taken in connection with an industrial dispute;

(d)               the action relates to work that is regulated by an award or certified agreement;

(e)               the action relates to the negotiation or proposed negotiation of an agreement under Division 2 of Part VIB of the Workplace Relations Act;

(f)                 the action occurs in a Territory or Commonwealth place.

The applicant relies on paras (a), (b) (c) and (d) of the definition.

10                  The applicant’s case was that, on 21 February 2006 at the Mount Street site, Mr Mates did three things that each constituted “building industrial action” within the meaning of paras (b) and (c) of the definition in s 36(1) of the BCII Act.  He: (1) demanded the crane crew from Independent Cranes Pty Ltd (“Independent Cranes”) who had come to the Mount Street site to undertake crane work that day to shut down the crane and leave; (2) telephoned the office of Independent Cranes and said that its crew were not to work on the Mount Street project; and (3) telephoned the CFMEU’s offices or a representative of the CFMEU and instructed the person he contacted to instruct Maurie Hill (the CFMEU organiser responsible for mobile cranes in Victoria (FEDFA division)) to ring Sergi Cranes and other crane operators to warn them off working at the Mount Street site.  The applicant also argued that Mr Mates breached s 38 of the BCII Act by organising a picket line at the Mount Street site (“the picket”) between 22 February 2006 and 10 March 2006.

The respondents’ no case to answer submission

11                  The respondents submitted that they had no case to answer in respect of the applicant’s allegations that:

            (a)        On 21 February 2006 Mr Mates breached s 38 of the BCII Act by demanding             the shut down of the crane (see Statement of Claim at [13(a)]);

            (b)        On 21 February 2006 Mr Mates breached s 38 of the BCII Act by telephoning Independent Cranes and saying that the crane crew were not to work on the Mount Street site (see Statement of Claim at [13(b)]);

            (c)        On 21 February 2006 Mr Mates breached s 38 of the BCII Act by telephoning the offices of the CFMEU or a representative of the CFMEU and instructing the person contacted to tell Mr Hill to warn other crane companies off the Mount Street site (see Statement of Claim at [13(c)]);

            (d)        From 22 February 2006 until 10 March 2006 Mr Mates breached s 38 of the BCII Act by organising a picket at the Mount Street site (see Statement of Claim at [14]);

            (e)        On 21 February 2006 Mr Mates breached s 43 of the BCII Act by taking the action referred to in paragraphs (a) to (c) above (see Statement of Claim at [19]);

            (f)         From 22 February 2006 until 10 March 2006 Mr Mates breached s 43 of the BCII Act by organising a picket at the Mount Street site (see Statement of Claim at [20]). 

The parties’ submissions

12                  The respondents’ no-case submissions related to only those alleged contraventions of the BCII Act that were based on their conduct on 21 and 22 February 2006 and following.  The submissions did not include alleged contraventions of s 43 of the BCII Act based on the respondents’ alleged conduct on 15 and 17 February 2006. 

13                  There were essentially two limbs to the respondents’ no-case argument.  In the first place, they argued that, even if proven, the conduct alleged in paras 13 and 14 of the applicant’s statement of claim could not amount to “building industrial action”, as defined in paras (b) and (c) of the definition in s 36(1) of the BCII Act.  The respondents argued that this was because, in order to constitute “building industrial action” within these paragraphs, the action must be that of employees in respect of their work.  The respondents contended that this was the effect of the Full Court judgments in Davids Distribution Pty Ltd v National Union of Workers (1999) 165 ALR 550 (“Davids”) and Construction, Forestry Mining and Energy Union v Giudice (1998) 159 ALR 1 (“Giudice”).  Hence, the respondents argued that, even if the Court found that Mr Mates had caused the crane from Independent Cranes to shut down and leave the site on 21 February 2006, this conduct alone could not constitute “building industrial action” as defined in s 36(1) of the BCII Act.  In support of this argument, the respondents pointed out that there was no imposition of bans or limitations in relation to the performance of their work by the employees of either Hardcorp or Independent Cranes.  At most, on the applicant’s case, Mr Mates had caused Independent Cranes to terminate its provision of services to Hardcorp. 

14                  For essentially the same reason, the respondents contended that Mr Mates’ alleged telephone calls to the offices of Independent Cranes and the CFMEU (or a CFMEU representative), even if proven, would not fall within the definition of “building industrial action” because the alleged actions again involved no bans or limitations by employees on the performance of their work.  If anything, so the respondents said, the conduct involved bans by Independent Cranes and other crane companies on the supply of services to Hardcorp, none of which constituted “building industrial action”.  The respondents also submitted that the picket involved no building industrial action in contravention of s 38 of the BCII Act because the action was not taken by the employees of Hardcorp to ban or limit their work. 

15                  The applicant disputed the respondents’ construction of the definition of “building industrial action” in s 36(1) of the BCII Act.  The applicant submitted that, to fall within paras (b) and (c) of the definition, it was enough that there was a ban, limitation or restriction on the performance of building work, and that whether or not it was imposed by employees was immaterial.  If there was a ban, limitation or restriction on the performance of building work imposed by a union, then the definition of “building industrial action” might be satisfied.

16                  The second part of the respondents’ no-case submission was to the effect that, even if the Court rejected their argument on the proper construction of the definition of “building industrial action”, the evidence adduced by the applicant failed to make out the essential elements of his case that, by their conduct on 21 and 22 February 2006, the respondents contravened ss 38 and 43 of the BCII Act.  The respondents conceded that Mr Mates stopped the crane.  In cross-examination of witnesses, they suggested (and the witnesses to date denied) that Mr Mates raised safety concerns.  The respondents argued (and the applicant denied) that the applicant had not proven his allegations with respect to s 38 that: (1) Mr Mates telephoned Independent Cranes on 21 February 2006, saying that the crane crew were not to work on the Mount Street site; (2) Mr Mates telephoned the offices of the CFMEU (or a representative of the CFMEU) on 21 February 2006, instructing the person contacted to tell Mr Hill to warn other crane companies off the Mount Street site; and (3) from 22 February 2006 until 10 March 2006 Mr Mates organised a picket at the Mount Street site.  The respondents contended (and the applicant refuted) that the phone records on which the applicant relied failed to establish that Mr Mates made the alleged calls.  The respondents argued, in opposition to the applicant, that the applicant could derive little, if any, assistance from the evidence of Mr Mitchell or Mr Moresi.  The respondents argued, and the applicant denied, that a Jones v Dunkel inference arose from the applicant’s treatment of Mr Mitchell’s evidence and from the absence of any evidence from any person from a crane company that it had been warned off the Mount Street site.  The respondents also contended, and the applicant refuted, that the applicant’s case was not borne out by contemporaneous documentary evidence and that, on account of Mr McMahon’s evidence, the applicant gained no support from the fact that no replacement crane was ever obtained.  The respondents argued that there was an absence of evidence to connect Mr Mates and the CFMEU with the picket, and that the creditors’ meeting and creditors’ demands supplied a more plausible explanation for the picket.  The applicant argued to the contrary.  The respondents also maintained that the applicant’s evidence as to the alleged breaches of s 43 of the BCII Act (which relied on Mr Mates’ conduct on 21 February 2006 and his alleged organising of the picket) was so deficient that it could not make out the essential elements of this aspect of the case against them.  The applicant sought to refute these alleged evidentiary shortcomings.

Should the respondents be put to their election?

17                  The general rule is that “a decision will not be given on a submission of no case to answer unless the moving party elects to call no evidence”:  see Rasomen at 223.  The judge hearing the submission has a discretion to depart from this general rule, however, where the particular circumstances warrant it.  In Protean (Holdings) Ltd (Receivers and Managers appointed) v American Home Assurance Co [1985] VR 187 (“Protean”) at 237 Tadgell J explained the nature of a no-case submission and the courses open to the judge in the following terms:

When … a party indicates that he desires to submit that he has no case to answer upon a contested issue, he is really inviting the Judge to rule that he should not have to adduce evidence, or further evidence, on that issue in order to have it finally decided in his favour.  Usually, but not inevitably, the invitation will be issued at the end of the evidence called against the party desiring to make the submission (whom I shall call “the moving party”) and before that party calls any evidence on the relevant issue in answer to that of the other party (whom I shall call “the respondent party”).  …  The judge is entitled, for reasons that seem appropriate to him, to decline out and out to entertain such a submission at the stage at which he is asked to do so.  … Usually there would be three courses open to him, short of refusing altogether to entertain the submission, namely:

1.                  He might decline to entertain the submission at that stage unless the moving party were to elect before making it not to call any evidence, either generally or on the issue on which the ruling was sought; or

2.                  He might allow the submission to be made without putting the moving party to any election at that stage but leaving, until he had heard it, the question whether or not he would rule on it without requiring an election to be made; and having heard the submission, and any answer to it by the respondent party, he could either rule on it or not, perhaps requiring an election to be made as a prerequisite to his doing so; or

3.                  He might indicate that he would both entertain the submission and rule on it without requiring an election to be made by the moving party.

18                  the respondents submitted that not only should the Court entertain their no-case submission, but that it should do so upon the basis that they would not be put to their election.  The applicant opposed this course, arguing that the no-case submission should only be heard upon the basis that the respondents were put to their election.  In Protean (at 238) Tadgell J said that, in deciding upon the preferred course on such occasions, “the Judge will be guided by the nature of the case, the stage it has reached, the particular issues involved and the evidence that has been given”.  He added (at 238):

The imposition of a requirement that the moving party make an election before the Judge entertains the submission, or before he rules on it, will depend on the just and convenient disposition of the litigation.  The imposition of such a requirement is not a right of the respondent party, for the fate of the submission of the moving party, once made, is in no sense dependent on election or no election.

19                  In the present case, for the reasons indicated at the hearing, I determined that I would not rule on whether the respondents should be required to make their election until after the parties had addressed argument on the no-case submission, and as to whether the respondents should be required to make an election.  It seemed to me that it was appropriate to take this course in order to understand the nature of the argument the respondents sought to make in saying that they had no case to answer.  This was the approach adopted by Fullagar J in Union Bank of Australia Ltd v Puddy [1949] VLR 242 (“Puddy”); by Finkelstein J in Compaq Computer; by Branson J at first instance in Rasomen (see Rasomen Pty Ltd v Shell Co of Australia Ltd (1996) 71 FCR 540 at 543); by Sundberg J in Tru Floor Service Pty Ltd v Jenkins (No 2) (2006) 232 ALR 532 (“Tru Floor”) at 537; and approved by the Full Court of the Supreme Court of Victoria in Protean. 

20                  Having heard the parties’ arguments, I would not put the respondents to their election in respect of that part of their no-case submission that concerned the scope of the definition of “building industrial action”.  Had the respondents been successful on this aspect of their no-case submission, they would have defeated the applicant’s s 38 case against them, without needing to answer this part of the applicant’s case further.  The respondents’ argument was to the effect that there was an evidentiary hiatus in the applicant’s case because the applicant had not adduced any evidence that any “ban, limitation or restriction” had been imposed by employees in respect of the work to which the ban, limitation or restriction related.  In order to succeed on this limb of their no-case submission, the respondents had to persuade the Court that their construction of the definition of “building industrial action” was the preferable one, and that the applicant had adduced no evidence on an important element of it.  For the following reasons, the respondents have failed to persuade me that their construction of the definition should be adopted, but, equally, it seems to me just and convenient that I rule on this question now without putting them to their election.  I have heard the argument.  The consideration of this part of their no-case submission involved no consideration of disputed evidence, and, as stated above, if accepted, it would have completely answered the applicant’s allegations that they had contravened s 38 of the BCII Act: compare Compaq Computer at 7; Residues Treatment & Trading Co Ltd v Southern Resources Ltd (1989) 52 SASR 54 (“Residues Treatment”) at 68 per Perry J; and Puddy at 245. 

21                  The remainder of the respondents’ no-case submission attracts different considerations as to the application of the general rule: compare Residues Treatment at 68-9; William H Muller & Co’s Algemeene etc v EBBW Vale Steel, Iron & Coal Co Ltd [1936] 2 All ER 1363 at 1365-6 per Branson J; and Tru Floor at 538-9 (and the cases there cited).  

22                  In support of their submission that they should not have to make an election as a condition of my ruling, the respondents relied heavily on the fact that the alleged contraventions of the BCII Act attract civil penalties; and they submitted that it would be unjust to expose Mr Mates to cross-examination if a case had not been established against them.  They referred to Tru Floor, Compaq Computer and Amcor. 

23                  In Tru Floor, Sundberg J determined that the defendants (who were directors of a building contractor company) should not be put to their election before his Honour ruled on their no-case submission against the plaintiffs (who were building subcontractors).  The plaintiffs alleged that the defendants had contravened the Corporations Law or the Corporations Act 2001 (Cth), by trading while insolvent.  A contravention such as this attracted a civil penalty.  His Honour noted (at 540-1) considerations in favour of this course included the fact that “part of what is alleged against the defendants is an offence involving dishonesty”, his impression that the plaintiffs’ case on insolvency was not strong, and that there were likely significant savings involved in entertaining the no-case submission.  His Honour said (at 541) that “it would be wrong for the defendants to be subjected to cross-examination on the dishonesty component of the offence before it is seen that there is some evidence of the insolvency component”.  As Sundberg J noted, similar factors affected Finkelstein J’s decision in Compaq Computer not to require the respondents to elect, including the nature of the allegations made against them, which were allegations of dishonesty, as well as his impression about the weakness of the case, and that well over a week’s hearing time remained to complete the trial: see Compaq Computer at 9.  In Compaq Computer Finkelstein J commented, at 7, that:

Another instance where a departure from the rule would be justified is in a case where fraud is alleged.  It was accepted by the Full Court in Protean that in such a case normally it would be wrong to require a party to subject himself to cross-examination if there really was no evidence of fraud against him: see [1985] VR at 236 where Puddy’s case is cited as authority.  And there will be other circumstances where the justice of the case will permit the court to determine a case at an early stage …

His Honour held (at 9) that “[t]he respondents should not be required to call evidence or submit themselves to cross-examination if a sufficient case of wrongdoing has not been established against them”.

24                  In Amcor, the applicant alleged that the respondents had contravened s 45(2)(a)(i) of the Trade Practices Act 1974 (Cth), a provision which attracted substantial penalties.  The applicant’s evidence in chief concluded on the first day of the trial, when counsel for the respondents submitted that they should be permitted to make a no-case submission without being put to their election.  Sackville J held that the circumstances justified a departure from the general rule that a decision will not be given on a no-case submission unless the submitting party elects to call no evidence.  His Honour accepted that the case fell within the third category mentioned by Perry J in Residues Treatment at 68 (on consideration of the evidence adduced by the plaintiff taken at its highest from the plaintiff’s point of view, the evidence could not support the cause of action pleaded) and that, in such a case, “there must be unusual circumstances to warrant the respondents being permitted to make their no case submission without being required not to adduce any evidence”: see Amcor at 358.  Sackville J held, however, that the circumstances were sufficiently unusual and that it was in the interests of justice for the respondents to be permitted to make their no-case submission without making an election.  His Honour said (at 358):

First and most important, I took the view that this is a case in which serious allegations of contraventions of the TP Act had been made against each of the respondents.  If the allegations were to be established, the corporate respondents would be exposed to pecuniary penalties of up to $10,000,000 and the individual respondents to pecuniary penalties of up to $500,000.  Adverse findings might well have serious consequences in terms of loss of business reputation.

The authorities recognise that a departure from the general rule is often justified where fraud is alleged against the moving party.  In Union Bank of Australia v Puddy [1949] VLR 242, Fullagar J said (at 246) that where fraud is alleged:

it may often be wrong to suggest that a party should submit himself to cross-examination before it is seen that there is really some evidence against him.

See also Protean at 215 per Young CJ; at 236 per Fullagar J; [Compaq Computer]at 7.  The present case is not one in which fraud has been alleged, but in my opinion it is analogous to a fraud case by reason of the very serious allegations that have been made against each of the respondents: see [Trade Practices Commission v George Weston Foods Ltd (1980) 43 FLR 55] at 61; Trade Practices Commission v Nicholas Enterprises Pty Ltd [1978] ATPR 40-097 (Fisher J), at 17,958.  The analogy is in my view strengthened by the fact that the definition of ‘exclusionary provision’ in s 4D of the TP Act incorporates the concept of ‘purpose’ in a subjective sense: ASX Operations Pty Ltd v Pont Data Australia Pty (No 1) (1990) 27 FCR 460 at 474-7 …

The respondents in this case relied on these passages.

25                  There were other factors that also affected Sackville J’s assessment, including the fact that the no-case submission did not require an assessment of the credit of any witness, since the facts of the case were largely not in dispute.  His Honour observed that he would not have entertained the no-case submission unless the respondents had made their election if it had required him to make an assessment of credit.  Additionally, all respondents in Amcor desired to make the submission; there were possible savings in court time and costs; and the applicant had been on notice prior to trial that the respondents proposed to make a no-case submission.  His Honour also noted that he formed the impression that the no-case submission was strongly arguable.

26                  In the second part of the respondents’ no-case submissions, the respondents have argued that, the evidence adduced by the applicant taken at its highest from the applicant’s point of view, does not make out certain of the contraventions alleged against them.  This part of their no-case submission therefore falls within the third category mentioned by Perry J in Residues Treatment at 68.  Generally speaking (and allowing that the court retains a discretion in the matter) there must be some unusual circumstance to justify the respondents making a no-case submission without being required to elect to call no evidence.  As already noted, the respondents rely on the fact that the applicant alleged contraventions of the BCII Act, which, if established, would expose the CFMEU to pecuniary penalties of up to $110,000 and Mr Mates to pecuniary penalties of up to $22,000.  I accept that this factor militates against adherence to the general rule; and that, in considering the applicant’s evidence, I should take account of the gravity of the matters alleged against the respondents: see Evidence Act 1995 (Cth), s 140 and Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-2.  I also accept that, ordinarily, it is not in the interests of justice for a party against whom civil penalties are sought for statutory breaches of this kind to be subject to cross-examination where there is no evidence to support the case against him or her. 

27                  I doubt, however, that these considerations provide an answer in this case.  First, whilst I appreciate the force of the respondents’ no-case submission, I doubt that the respondents’ no-case submission in this case is as strong as that considered by Sundberg J in Tru Floor or Sackville J in Amcor.  To my mind, the position now reached in this case is more akin to that described by Davies J in Trade Practices Commission v George Weston Foods Ltd (No 2) (1980) 43 FLR 55 (“George Weston”) at 60-2.

28                  Secondly, the respondents’ no-case submission is a limited one.  They advanced this submission only in respect of the events of 21 and 22 February 2006 and following (which are said to give rise to the breaches of ss 38 and 43 of the BCII Act referred to above).  Whatever the outcome of this submission, the events of 15 and 17 February 2006 (which are said to give rise to breaches of s 43) would go forward to the end of the trial and the evidence as to them would fall for consideration.  It must be borne in mind that Mr Mates is as much a central actor in the events of 15 and 17 February as 21 February and, on the applicant’s case, 22 February 2006 and following.  Furthermore, the applicant’s case against the respondents does not readily permit the dissection the respondents seek.  The applicant’s case depends, at least in part, upon a consideration of the whole factual matrix, commencing with the alleged conversations on 15 February and, subsequently, 17 February 2006 and culminating with the picket on 22 February 2006 and following.  On the applicant’s case, Mr Mates’ stopping of the crane on 21February 2006 (which the respondents concede) was within the relevant time-frame.  On the applicant’s case, this event on 21 February 2006 not only amounts to breach of ss 38 and 43, but also formed part of the factual matrix upon which other parts of his case against the respondents must be assessed.  The temporal link is, on the applicant’s case, “extremely important”.  The applicant’s counsel submitted that, whether or not the respondents were put to their election, the evidence regarding the picket and stopping of the crane would remain relevant to the case against the respondents on the other alleged contraventions that were not covered by the no-case submission.  Hence, even if the no-case submission were successful, the Court would be obliged to reconsider the evidence that it had already considered as part of the no-case submission, although from another perspective.  The applicant also foreshadowed that there might be related difficulties for the conduct of the trial, especially if the Court were to accept part (e.g., regarding the picket), but not all (e.g, regarding the crane stoppage) of the respondents’ no-case submission.  I agree that there is a risk of embarrassment arising from dealing now with part only of the applicant’s case against the respondents, especially having regard to the way the applicant would put its case: compare Residues Treatment at 71-3, Popovic v Tanasijevic (No 4) [1999] SASC 351 (“Popovic”) at [124] per Olsson J and Leahy at 210-12.  Of course, in the absence of an election, if the no-case submission were to fail, then the Court would be required to reconsider the evidence considered on the no-case submission in any event.  As Sackville J noted in Amcor at 357, this problem may be particularly acute if a no-case submission requires some evaluation of the credit of witnesses.  Whilst I accept that, strictly speaking, the respondents’ no-case submission may not involve an evaluation of credit, their submission at this point calls for assessments of evidentiary reliability that in some instances give rise to similar concerns: compare Residues Treatment at 69 and George Weston at 58-9.  

29                  There is, of course, good reason for the general rule that a decision will not be given on a no-case submission unless the submitting party elects to call no evidence.  If a judgment in favour of a no-case submission is overturned on appeal, it would generally be necessary to order a new trial: see Compaq Computer at 7 and Amcor at 357.  The trial in the present case has proceeded over 4 days.  There has been significant cross-examination of the witnesses called by the applicant.  Whilst the respondents have filed witness statements from five persons, at the commencement of the trial, they stated that they would not be relying on two of these statements.  They have not indicated whether or not Mr Mates will give evidence and, if he does, in what circumstances he would do so:  compare Evidence Act 1995 (Cth), s 128.  The trial is unlikely to take any more than 2 days to complete. 

30                  As regards the second part of the respondents’ no-case submission, I am not persuaded that justice and convenience justify departure from the general rule.  Accordingly, I would not rule on this part of the respondents’ no-case submission unless the respondents elect to call no further evidence.  The respondents are put to their election, and in respect of all causes of action.  This is notwithstanding that their no-case to answer submission did not relate to all that the applicant pleaded against them.  Any other approach would undermine the basis upon which I have ruled that they should be put to their election: compare Residues Treatment at 74, Popovic at [124] per Olsson J and Prentice v Cummins (No 4) [2002] FCA 1215 at [25] per Sackville J.  As already noted, the applicant’s case is that the events on 15, 17, 21 and 22 February 2006 and following are related to one another and not susceptible to the dissection the respondents would make. 

The meaning of “building industrial action”

31                  What follows is, therefore, limited to the respondents’ submission that, when the definition of “building industrial action” in s 36(1) of the BCII Act is properly construed, the applicant failed to prove an essential element of his case against the respondents under s 38 of the BCII Act.

32                  As I have said, this submission involves little consideration of the evidence so far adduced and does not depend on any disputed evidence.  The respondents’ argument was that there was no “building industrial action” as defined in s 36(1) and, therefore, no unlawful industrial action for the purposes of ss 37 and 38 of the BCII Act.  This was because there was no “ban, limitation or restriction on the performance of building work” within the meaning of paras (b) and (c) of the definition of “building industrial action” in s 36(1), because there was no ban, limitation or restriction imposed by employees.  The respondents submitted, and it was not in dispute, that the applicant led no evidence that any of Hardcorp’s employees had imposed a ban, limitation or restriction on the performance of work.  There was no evidence that any employee of Independent Cranes or any other crane company had imposed any such ban.  Indeed, this was not the applicant’s pleaded case.  Accordingly, if the respondents’ construction of the definition of “building industrial action” in s 36(1) of the BCII Act were accepted, then the respondents would have no case to answer under s 38 of the BCII Act.  The question is, however, whether or not the words “a ban, limitation or restriction on the performance of building work” in paras (b) and (c) of the definition of “building industrial action” refer to a ban, limitation, or restriction imposed only by employees, or can extend to union action. 

33                  Before the introduction of the Workplace Relations Amendment (Work Choices) Act 2005 (Cth) (“Work Choices Act”), there was an equivalent definition of “industrial action” in the WR Act.  Except in Pt XA of the WR Act, industrial action was defined in s 4(1) of the WR Act to mean:

…

(b)       a ban, limitation or restriction on the performance of work, or on acceptance of or offering for work, in accordance with the terms and conditions prescribed by an award or an order of the [Australian Industrial Relations Commission], by a certified agreement or AWA, by an award, determination or order made by another tribunal under a law of the Commonwealth or otherwise by or under a law of the Commonwealth;

(c)       a ban, limitation or restriction on the performance of work, or on acceptance of or offering for work, that is adopted in connection with an industrial dispute …

(The definition of “industrial action” in s 298B(1) in Pt XA of the WR Act, as the Act then stood, was not relevantly different.) 

34                  Under the definition of “industrial action”, a question arose as to whether the ban, limitation or restriction on the performance of work referred to in the definition of “industrial action” in s 4(1) of the WR Act ought to be confined to that which is imposed by employees on their work.  I discuss the principal authorities below.  This question has been resolved for the WR Act by the inclusion of a new definition as a result of the Work Choices Act.  The current definition of “industrial action” in s 420(1) of the WR Act includes:

…

(b)       a ban, limitation or restriction on the performance of work by an employee or on the acceptance of or offering for work by an employee;

… (Emphasis added.)

35                  In this context, the respondents developed their argument as to the meaning of the definition of “building industrial action” in s 36(1) of the BCII Act in the following way: (1) the definition of “building industrial action”, as appearing in the BCII Act, derived from the former definition of “industrial action” in the WR Act; (2) this definition of “industrial action” had acquired a meaning which required the ban, limitation or restriction to be imposed by the employees to whose work the ban, limitation or restriction related; (3) this meaning had subsequently received legislative endorsement by the introduction of the new definition of “industrial action” in the WR Act; and (4) it follows that the reference to “a ban, limitation or restriction on the performance of building work” in paras (b) and (c) of the definition of “building industrial action” in s 36(1) of the BCII Act is to be accorded the same meaning as “industrial action” in the WR Act, i.e., as requiring the action to be taken by employees.

36                  The applicant disputed this approach.  He said that it was impermissible to read words into the definition of “building industrial action” in the BCII Act by reference to the definition of “industrial action” in the WR Act; and that, if anything, the absence of the relevant words in the definition of “building industrial action” in the BCII Act supported a meaning that was different from that of “industrial action” in the WR Act.  The applicant also relied on the fact that the definition of “constitutionally-connected action” in s 36(1) of the BCII Act – an element of “unlawful industrial action” in s 37 – includes “the action [being] taken by an organisation”.  He submitted that this showed that the legislature contemplated that a union could engage in “building industrial action” without any involvement of employees.

37                  As already indicated, the respondents’ argument depended largely on the judgments of Full Courts of this Court in Davids and Giudice.  Giudice involved an application by three unions for prerogative writs directed to a Full Bench of the Australian Industrial Relations Commission (“the Commission”), following the quashing of orders under s 170MW(1) of the WR Act.  Subsection 170MW(1) gave the Commission power to suspend or terminate a bargaining period if satisfied that certain circumstances existed.  Subsection 170MW(3) provided that a circumstance for this purpose was “industrial action” being taken to advance claims in respect of a proposed certified agreement, which was threatening to endanger the health or welfare of the population or cause significant damage to the economy.  An issue arose as to whether “industrial action”, as defined in s 4(1) of the WR Act, covered picketing.  At 13-14, the Full Court, constituted by Spender, Moore and Branson JJ, said:

The only basis on which picketing might be comprehended by the definition of industrial action is if it is conduct of the type identified in para (c) of the definition.  That is, if it is a restriction on the performance of work or on the acceptance of or offering for work.  The word ‘picketing’ may simply describe a lawful assembly outside a workplace (or elsewhere) protesting about and drawing attention to conditions of employment in the workplace.  The word ‘picketing’ may also describe an assembly which engages in protest of this type but also prevents or impedes access into and out of the workplace (or elsewhere).

Even if used to describe the latter situation, it is unlikely that picketing is conduct comprehended by the expression ‘a … restriction on the performance of work’ as it appears in para (c).  Having regard to the context in which that expression appears, it is more likely to relate to restrictions imposed by an employee or a group of employees on the work they do so as to limit the scope of that work or the time or the circumstances in which it is done.  While the  expression ‘a … restriction … on acceptance of or offering for work’ in para (c) might comprehend picketing of the latter type which prevented employees who were continuing to work from attending the workplace it is unlikely to have such a wide meaning if the other elements in para (c) relate to circumstances of the type just discussed.  It is likely that para (c) in its entirety is directed to the conduct of employees who engage in conduct limiting the work they do or the circumstances in which they offer to do it. (Emphasis added.)

Their Honours declined, however, to express a concluded view about the scope of the definition as it might apply to picketing.  The respondents relied on these passages. 

38                  In Davids, Wilcox and Cooper JJ, with whom Burchett J relevantly agreed, stated their agreement with the view tentatively expressed in Giudice.  In Davids, the respondent union commenced proceedings for a declaration that the appellant employer had engaged in conduct in contravention of s 170MU of the WR Act and an order restraining the employer from giving effect to purported terminations of its employees’ employment.  The employer had sent letters of termination to employees identified on a picket line.  The Court was, in part, concerned with an entitlement under s 170ML to take “protected action” during a bargaining period, and ss 170MM and 170MN which imposed limitations on permissible “industrial action” as defined in s 4(1) of the WR Act.  The union argued that the picketing was “protected action” and, in consequence, the employer’s action contravened s 170MU.  The employer said that this was wrong for a number of reasons, including that the picketing was not “industrial action” and was, therefore, not “protected action”. 

39                  I set out at some length the relevant passages in the judgment of Wilcox and Cooper JJ, since the respondents in this case relied heavily on their Honours’ analysis and the parties’ argument focussed on what their Honours intended by these passages.  Under the heading “[i]s picketing ‘industrial action’?”, Wilcox and Cooper JJ referred to the arguments of counsel, which were similar to the arguments in this case, saying (at 566-67):

The question whether picketing falls within the statutory definition of ‘industrial action’ … is not free from difficulty.  The question has been touched on in several cases but not conclusively resolved.  Counsel for NUW argued picketing does fall within the definition and particularly relied on para (c).  Counsel said the picket imposed in this case was a “ban, limitation or restriction on the performance of work” by those whose trucks were stopped) that was adopted (by NUW and some of its members) in connection with an industrial dispute.  Counsel acknowledged para (c) might be read as referring only to bans, limitations and restrictions on the activities of those imposing them, but they argued this reading unwarrantedly restricts the words used in the paragraph; the better view is that parliament intended para (c) to be given a wide interpretation.  They argued picketing has been a familiar form of industrial action for generations; it is therefore unlikely that parliament chose to exclude it, when it adopted the current paras (a)-(f) in 1988. 

…

Counsel for Davids turned their opponents’ argument back upon them.  They conceded picketing was a well-known form of industrial action in 1988 [when the current definition was adopted] and argued it should therefore be concluded that, if parliament had intended to include picketing in the definition, it would have referred to it by name.  …

Amongst other things, their Honours referred to the explanatory memorandum that accompanied the bill for the Industrial Relations Act 1988 (Cth), commenting that the 1988 definition of “industrial action” differed from that used in the Conciliation and Arbitration Act 1904 (Cth), primarily on account of the addition of para (c) (which is equivalent to para (c) in the definition of “building industrial action” in s 36(1) of the BCII Act).  

40                  It is clear that an important consideration in Davids was the relationship between s 127 of the WR Act, as it then was, and the definition of “industrial action”.  This was because, by virtue of s 127, the Commission had no power to deal with picketing if it was not “industrial action”.  As their Honours noted, French J had previously discussed this relationship in Communications Electrical Energy Information Postal Plumbing and Allied Services Union of Australia v Laing (1998) 159 ALR 73 (“Laing”), where his Honour had relied on Lockhart and Gummow JJ’s discussion of picketing in Australian Builders’ Labourers’ Federated Union of Workers (WA Branch) v J-Corp Pty Ltd (1993) 114 ALR 551 (“J-Corp”) at 555-7.  At 569-70, Wilcox and Cooper JJ said:

One question [in Laing] was whether the picketing activity at Muja was ‘industrial action’, as defined in s 4 of the Act.  At 88 French J noted that the Muja picket line did not prevent entry and exit of staff of the power station who wanted to cross it, but ‘fuel supplies to the power station were disrupted because fuel tankers did not want to cross the picket line’.  He went on:

The general concept of picketing was discussed by Lockhart and Gummow JJ in Australian Builders’ Labourers’ Federated Union of Workers (WA Branch) v J-Corp Pty Ltd (1993) 114 ALR 551 at 555-7.  It is apparent that it is a wider class of conduct than industrial action under s 127.  At common law it is not necessarily unlawful but may become so if it involves obstruction and ‘besetting’: Sid Ross Agency Pty Ltd v Actors and Announcers Equity Association of Australia [1971] 1 NSWLR 760 at 767 (Mason JA).

To constitute ‘industrial action’ under s 127 picketing must fall within the statutory definition of that term.  It is not the performance of work.  It can only qualify as industrial action if it amounts to a ‘ban, limitation or restriction on the performance of work’.  So a picket line whose purpose is to prevent or deter or discourage employees from attending on their employer’s premises and from carrying out their work could constitute a ban for the purpose of s 127.  There are therefore circumstances in which picketing may be the subject of an order as industrial action under s 127.  In this case the Commission’s order literally applied only to such participation in picket lines as was industrial action.  The term ‘industrial action’ provided the umbrella class within which all classes of conduct specifically proscribed by the order had to fall.  This was reinforced by the reference in para (4) of the order to the application of the statutory definition of industrial action ‘for the purposes of this order’.

The particular picket line did not prevent entry to the power station premises nor was there evidence to suggest that it deterred or discouraged entry.  Fuel truck drivers, however, did not want to cross it.  It is arguable that the order did not apply to such picketing activity as had been undertaken.  Whether it did or not would no doubt require a close investigation of the facts concerning the establishment and conduct of the picket.

Australian Builders’ Labourers’ v J-Corp, referred to by French J, was a case under s 45D of the Trade Practices Act 1974 (Cth).  That section did not use the words ‘picket’ or ‘picketing’.  The value of the passage cited by French J is that it demonstrates that activities falling within the general description of ‘picketing’ may range from a protest in which the picketers do no more than communicate their views to persons entering or leaving particular premises, through various degrees of hindrance to total prevention of ingress and/or egress.

Activity that merely involves communication of information to persons entering or leaving a site is not ‘industrial action’, within the meaning of the definition in the Workplace Relations Act.  Such activity clearly cannot constitute a ‘ban, limitation or restriction on the performance of work’ by the picketers.  If the picketers do no more than communicate information, it is immaterial that the recipient of the information may be persuaded not to perform, accept or offer for work.  On the other hand, if the picket takes the form of preventing or hindering people from performing, accepting or offering for work, its effect is to limit or restrict the performance of work, or the acceptance of, or offering for, work.  Such conduct may be regarded as falling literally within para (c) of the definition of ‘industrial action’.  However, consistently with the tentative view of the Full Court in [Giudice], we think the paragraph ought to be read as applying only to limitations on the work of those imposing ban. The history of the legislation and policy considerations persuade us it is likely parliament intended to confine the paragraph in this way.  (Emphasis added.)

41                  Wilcox and Cooper JJ returned to this subject at 574, saying:

As we have already observed, picketing which does not involve obstruction and besetting does not fall within the definition of ‘industrial action’; it does not relate to the performance of work in the circumstances specified in para (a), (b), (c) or (d) of the definition.  Such conduct does not need the protection of s 170MT(2) because it is not actionable by anyone.  Only picketing which involves obstruction and besetting, and is therefore an actionable tort, gives rise to policy considerations as to whether it was intended to be protected from suit, or should be so covered if the language will permit.

Picketing which interferes with a person’s liberty and freedom of movement infringes that person’s common law rights; in particular, the right to free passage in public places and on public roads and footpaths … There is a presumption in the interpretation of statutes that there is no intention to interfere with common law rights or basic common law doctrines unless the words of the statute expressly or necessarily require that result …

To interpret para (c) of the definition of ‘industrial action’ in such a way as to include picketing infringing upon the rights and freedoms of others would be to confer statutory immunity on such conduct; provided only it was engaged in upon proper notice to the employer and for the purposes of negotiating a certified agreement or an AWA.  It would authorise interference with the rights, not only of the employer, but also of other affected persons who, but for the immunity, would have a right of action at common law … Bearing in mind the presumption mentioned in the last paragraph, we do not think the definition should be interpreted in that way …..

42                  The foregoing passages show, as indeed the respondents submitted, that, consistently with Giudice, the Full Court in Davids considered that para (c) of the definition of “industrial action” in s 4(1) of the WR Act applied only to a restriction imposed by employees on the work they did. 

43                  There is little doubt, however, that Giudice and Davids were much concerned with the nature of picketing, which, as these cases both noted, is a wider concept than industrial action.  The applicant argued that the real question in Davids was whether picketing was capable of constituting “protected action” and that this consideration affected the Full Court’s construction of the definition of “industrial action”.  Davids was not, so the applicant submitted, authority for the proposition that a union could not impose a restriction on the performance of work for the purpose of para (c) of the definition of “industrial action” in s 4(1) of the WR Act (and thus, as the respondents would have it, para (c) of the definition of “building industrial work” in s 36(1) of the BCII Act).  I accept this submission in part.  That is, I accept that the Full Court in Davids was concerned with the scope of “protected action”, as the passage set out at [41] above shows.  Here the Full Court reasoned that, to the extent that picketing involved obstruction and “besetting”, it could constitute “industrial action”, but that it did not do so because such conduct was an actionable tort in respect of which the Parliament was not to be taken to have conferred statutory immunity.  Subject to what appears at [49] below, this reasoning is independent of, and separate from, the Full Court’s earlier conclusion that para (c) of the definition of “industrial action” ought to be construed so as to extend only to bans, limitations and restrictions imposed by employees performing the work in question. 

44                  The discussion of French J in Laing cannot support the contrary conclusion, since it was not specifically concerned with the question whether para (c) of the definition of “industrial action” referred to bans, limitations or restrictions imposed by those performing the work.  Rather, it was concerned with the nature of picketing as industrial action.  In any event, Laing was the subject of the Full Court’s consideration in Davids. 

45                  I accept that, in relying on Laing, Dowsett J in Temple v Powell [2008] FCA 714 at [50]-[52] apparently adopted a broad view of the scope of paras (b) and (c) of the definition of “building industrial action” in s 36(1) of the BCII Act, which would extend the paragraph to unions.  This case, however, proceeded by way of an agreed statement of facts, the parties agreeing that the union had contravened s 38 of the BCII Act, and his Honour’s attention was not drawn to the relevant passages in Davids or Giudice.  The same may be said of the earlier judgment of Le Miere J in Leighton Contractors Pty Ltd v Construction, Forestry, Mining and Energy Union (No 4) [2006] WASC 317 (“Leighton”), at [28]-[31] where once again reliance was placed on Laing without reference to Davids or Giudice. 

46                  Transfield Construction Pty Ltd v Automotive Food, Metal, Engineering, Printing and Kindred Industries Union [2002] FCA 1413 (“Transfield”) cannot be explained in the same way.  In this case, Merkel J referred to Davids and said (at [46]):

In my view nothing said by Wilcox and Cooper JJ in [Davids] detracts from the observations of French J in Laing to the effect that a picket line, established by unions or their organisers for the purpose of preventing or deterring or discouraging employees from attending at their employer’s premises and from carrying out their work, could constitute industrial action for the purpose of s 127.

At first blush, his Honour’s analysis is apparently inconsistent with the view expressed in Davids that para (c) of the definition of “industrial action” in s 4(1) of the WR Act referred to bans, limitations or restrictions imposed by those performing the work.  It is to be borne in mind, however, that the picket line in Transfield was made up of the applicant’s and its subcontractors’ employees.  This fact may serve to avoid the apparent inconsistency.

47                  In Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Langley (unreported, 26 February 2004, Federal Court of Australia, BC200404666), where Finkelstein J was concerned with an application for an interlocutory injunction, it was sufficient for his Honour to note that whether or not picketing can be “industrial action”, for the purposes of para (c) of the definition in s 4(1) of the WR Act was far from clear.  As his Honour said (at [12]), a possible interpretation of the cases is that “picketers only engage in industrial action when they are limiting or restricting the performance of their own work”.  His Honour added:

This is a reasonable approach which requires picketers to be manning the picket lines on a work day.  It also seems to be the view of Goldberg J in Original Juice Co Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2001] FCA 675 [at para 32].

Whilst this approach was broadly supportive of the respondents’ position, it also emphasised that the effect of Davids and Giudice was far from clear, a proposition reinforced by the intervening decisions referred to by Finkelstein J and in paragraphs [45] and [46] above.

48                  After argument, the applicant referred the Court, with leave, to the Commission’s decision in NMHG Distribution Pty Ltd t/as Yale Asia Pacific v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (2000) 104 IR 158 (“NMHG”).  This was an appeal to the Full Bench of the Commission, which raised the question “whether a ban imposed by the AMWU through its delegates employed by CUB at the Abbotsford plant on the performance of work by Yale employees at that plant [was] capable of coming within the meaning of the definition of industrial action in s 4(1) of the WR Act”.  As to this the Commission said (at 160):

[I]t is necessary to examine whether the ban is capable of constituting ‘a ban, limitation or restriction on the performance of work, or on acceptance of or offering for work’ within the meaning of those words in pars (b) and (c) of the definition … [I]n the Commissioner’s view the action alleged could not constitute industrial action because it did not relate to the work of the delegates themselves, but to the work of the Yale employees. 

After referring to Davids and Giudice, the Commission said (at 161-2):

Whilst these decisions provide some support for the construction of the definition advanced by the AMWU, in each of the cases referred to the Court was considering whether picketing was industrial action for the purposes of the definition.  It follows that neither case constitutes binding authority on the question which arises in this case.  Furthermore in [Giudice] the relevant passage was clearly not an integral part of the court’s reasons for its decision, while in Davids the court based its decision for the most part on indications to be found in various sections of the Act that the legislature did not intend to include picketing in the statutory concept of industrial action … This case is not concerned with picketing.  In this case employees of one employer and their union … placed bans on the performance of work by employees of another employer at the first employer’s premises in circumstances where the employees of the second employer normally perform such work at those premises.

… As a matter of ordinary language, a prohibition by employees of CUB (and their union) on Yale employees carrying out work on the CUB premises when the Yale employees normally perform work on those premises can be described as a ‘ban … on the performance of work, or on acceptance for or offering for work’ within the terms of pars (b) and (c) of the definition.  There is no indication in the objects of the Act, in the objects of Pt VI or anywhere else in the Act that the legislature intended to exclude such conduct from the definition.  We can see no basis for limiting the ordinary meaning of ‘ban’ where it appears in pars (b) and (c) of the definition to a ban imposed by employees in relation to their own work. 

49                  Of course, as the respondents noted, NMHG is not binding on this Court.  It seems probable, however, that neither in Davids nor in Giudice was the Full Court considering the kind of situation that arose in NMHG.  This supports the proposition for which the applicants contend that the effect of these two decisions must be assessed having regard to the context with which each was concerned.  Further, it is plainly correct to say, as NMHG does, that the observation of the Full Court in Giudice was obiter dictum.  The status of the observations in Davids is less clear, but, plainly enough, as already noted, the focus of Davids was on picketing.  Accordingly, the observations in Davids on the scope of the definition of “industrial action” in s 4(1) of the WR Act are to be considered in this light.  Furthermore, it is to be borne in mind that the Full Court in each case was not concerned with the BCII Act but with the WR Act, being different though related legislation.  Whilst I must take such guidance from Davids and Giudice as I can, they provide no clear and definitive answer to the question whether or not the words “a ban, limitation or restriction on the performance of building work” in paras (b) and (c) of the definition of “building industrial action” in s 36(1) of the BCII Act refer to a ban, limitation, or restriction imposed only by employees, or can extend to union action.

50                  Ultimately, the task for the Court is to construe paras (b) and (c) of the definition of “building industrial action” in s 36(1) of the BCII Act, having regard to their statutory purpose and context.  The Court may also have regard to extrinsic material such as the second reading speech or the explanatory memorandum accompanying the bill to confirm that the ordinary meaning of these paragraphs is applicable or to assist in resolving any ambiguity in them:  see Acts Interpretation Act 1901 (Cth), s 15AB. 

51                  Reference to s 3(1) of the BCII Act discloses that its main object is “to provide an improved workplace relations framework for building work to ensure that building work is carried out fairly, efficiently and productively for the benefit of all building industry participants”.  The BCII Act provides, in s 3(2), that this object is to be achieved in numerous ways, including by “ensuring that building industry participants are accountable for their unlawful conduct”.  In the context of this Act, the CFMEU is undoubtedly a building industry participant.  Further, s 38 of the BCII Act is, plainly enough, concerned with preventing unlawful industrial action.  Paragraphs (b) and (c) of the definition of “building industrial action” in terms contain no limitation of the kind for which the respondents contend.  The expression “a ban, limitation or restriction on the performance of building work” in paras (b) and (c) may as naturally comprehend that which is imposed by a union as by employees.  On its face, the expression is apt to cover the imposition of bans, limitations or restrictions by unions, employees to whose work the prohibitions and restrictions relate and, depending on the particular circumstances, to other persons (see, e.g., NMHG).  There is little, if anything, in para (b) or (c) of the definition to indicate that the Parliament intended that the expression should apply only to employees in respect of their work and not extend to other building industry participants, such as unions.  Moreover, the main object of the BCII Act is apparently better promoted by a wide interpretation as opposed to the narrower one for which the respondents contend.  Absent any countervailing consideration, I would therefore adopt it: see Acts Interpretation Act 1901 (Cth), s 15AA. 

52                  There is nothing else in the BCII Act that would indicate that these paragraphs were intended to be limited in the way the respondents contend.  Indeed, other provisions in the BCII Act support the more natural construction for which the applicant contends.  The definition of “constitutionally-connected action” in s 36(1) of the BCII Act (set out in [9] above) contemplates that unions (being “organisations” within the meaning of para (a) of the definition of “constitutionally-connected action”) may take “building industrial action”.  If the expression “a ban, limitation or restriction on the performance of building work” in paras (b) and (c) of the definition of “building industrial action” refer only to that which is imposed by employees in respect of their work, and cannot refer to a prohibition or restriction on the performance of work imposed by a union, then it is unlikely that union action could ever amount to “building industrial action” (for which the union could be held responsible under s 38).  This would be the case notwithstanding that the action was “constitutionally-connected action”, being “action taken by an organisation”, and otherwise satisfied s 37 of the BCII Act.  This is because paras (a) and (d), being the other paragraphs of the definition of “building industrial action” in s 36(1), in terms most naturally apply to action by employees, rather than other persons or entities.  As noted previously, such a construction would not apparently best promote the main object of the BCII Act.  

53                  The respondents sought to answer this by reference to s 48(2) of the BCII Act, which provides that a person who is involved in a contravention of a civil penalty provision such as s 38 is to be treated as having contravened the provision.  The applicant submitted, however, that the drafting of ss 36 to 38 “contemplate[d] that a trade union may contravene s 38 of the BCII Act without the need to call in aid” s 48.  The effect of s 48(2) is that, once a person has contravened s 38, another person, “who is involved in [the] contravention” (within s 48(2)) is treated as having also contravened s 38, without there being a need to satisfy the requirements of s 37 of the BCII Act.  Before this liability can arise, however, there must be a principal contravention of s 38, which satisfies the requirements of s 37 (including the existence of “constitutionally-connected action”).  I accept the applicant’s submission that the legislative drafting of ss 37 and 38, as amplified by the definitions in s 36, show that the Parliament contemplated that a trade union might contravene s 38 of the BCII Act, independently of s 48(2) of the BCII Act.

54                  Both paragraphs (b) and (c) of the definition of “building industrial action” in s 36(1) contain other internal limitations.  Paragraph (b) of the definition is constrained by reference to “the terms and conditions prescribed by an industrial instrument”, and para (c) is constrained by reference to “an industrial dispute” (as defined in s 36(4)).  Neither of these additional requirements would support the respondents’ contention that the paragraphs refer only to restrictions on work imposed by employees.  They too are consistent with the broad construction that extends the paragraphs to union action, provided the other definitional requirements are met.

55                  Finally, the proposition that the ordinary meaning of paragraphs (b) and (c) of the definition of “building industrial action” in s 36(1) is the applicable one in this statutory context is confirmed by reference to the Minister’s second reading speech and the relevant explanatory memorandum.  The Minister’s second reading speech on the Building and Construction Industry Improvement Bill 2005 (“ the BCII Bill”) said (amongst other things):

This bill is a specifically targeted legislative measure to address the unlawful conduct of unions.

…

From this day forward, industrial action taken by unions to pursue the early negotiation of new agreements would not only be unprotected but also unlawful.  If unions or other parties take unlawful industrial action they will be subject to civil penalties.  

This means that unions and those taking unlawful industrial action will be liable to financial penalties of up to 1,000 penalty units, currently $110,000, for a body corporate or 200 penalty units, currently $22,000, in other cases.

56                  The Regulation Impact Statement (“RIS”) that formed part of the Revised Explanatory Memorandum (“REM”) accompanying the BCII Bill was to similar effect, referring to a need to regulate the conduct of unions and other industry participants (RIS at [9]-[10], [37]-[38]; see also [48]-[49] of Explanatory Memorandum) and to the fact that, in this context, the BCII Bill sought to clarify what constituted unlawful action.  As the applicant noted in written submissions filed with leave after argument, the note in the REM on the definition of “building industrial action” said (at 5.126; see also 6.3 of Explanatory Memorandum) that “[b]uilding industrial action is defined broadly to encompass conduct by employers and employees that adversely affects the performance of building work”, which by itself might tend to support the respondents’ contention.  This note must, however, be read in the light of the whole of the document in which it appears.  Under “Conclusion and recommended option”(RIS at [53]), it is said that:

[t]he main object of the reforms contained in the BCII Bill is to provide an improved workplace relations framework for the building and construction industry to ensure that building wok is carried out fairly, efficiently and productively for the benefit of all building industry participants …The provisions  .. are directed at addressing both the entrenched culture of lawlessness identified by the Royal Commission and the other inappropriate practices in the industry that act against choice, productivity and safety. 

The reference in this passage to the “Royal Commission” is a reference to the Royal Commission into the Building and Construction Industry, to which the BCII Act is a response: see REM at page 1; Explanatory Memorandum at page 2. 

57                  Thus, the BCII Act is evidently directed to industrial action in the building industry, with emphasis on the conduct of all industry participants, including unions, and is designed to overcome some of the perceived deficiencies of the WR Act.  The considerations that informed the introduction of the BCII Act differ to an extent from the historical and policy considerations referred to by Wilcox and Cooper JJ in Davids, and which led their Honours to construe paras (b) and (c) of the definition of “industrial action” in s 4(1) of the WR Act as referring to a limitation on the performance of building work imposed by those to whom the work related.

58                  As the second reading speech and REM to the BCII Bill make clear, there is a distinct relationship between the operation of the WR Act and the BCII Act.  It is to be borne in mind, however, that when the definition of “industrial action” in the WR Act was amended by the introduction of s 420, with the effect that it became clear in terms that a relevant “ban, limitation or restriction on the performance work” must be imposed “by an employee” (see [34] above), the Parliament did not adopt the same course with respect to the definition of “building industrial action” in the BCII Act.  Whatever the position be with respect to the definition of “industrial action” in the WR Act, I am not persuaded that, in the context of the BCII Act, the reference to a ban, limitation or restriction on the performance of building work should be construed as if the Parliament had made this amendment to it.  That is to say, the ban, limitation or restriction on the performance of building work to which paras (b) and (c) of the definition of “building industrial action” in s 36(1) of the BCII Act refer is not limited to a prohibition or restriction imposed by employees to whom the work relates and may refer to that which is imposed by a union, such as the CFMEU.  It does not follow, of course, that every ban, limitation or restriction on the performance of work imposed by a union or other industry participant satisfies the definition of “building industrial action” in paras (b) and (c) of s 36(1) of the BCII Act.  As noted already, each paragraph is constrained by other factors, including, in the case of para (b), “an [applicable] industrial instrument” and, in the case of para (c), the existence of “an industrial dispute”. 

59                  For the reasons stated, I reject the respondents’ submission that, even if proven, the conduct alleged in paragraphs 13 and 14 of the applicant’s statement of claim could not amount to “building industrial action”, as defined in paragraphs (b) and (c) of the definition in s 36(1) of the BCII Act, because, in order to constitute “building industrial action” within these paragraphs, the relevant “ban, limitation or restriction on the performance of building work” must be imposed by the employees in respect of whom the work relates.  For the reasons stated, I would make this ruling without putting the respondents to their election.

60                  For the reasons already stated, however, I would not rule on the remainder of the respondents’ no-case submission unless the respondents elect to call no further evidence.  The respondents are put to their election, in respect of all of the applicant’s pleaded causes of action. 

I certify that the preceding sixty (60) numbered paragraphs are a true copy of the Ruling of the Honourable Justice Kenny.

Associate:

Dated:         4 August 2008

Counsel for the First Applicant:	Mr J Bourke
Solicitor for the Applicant:	Australian Government Solicitor
Counsel for the Respondents:	Mr H Borenstein SC with Mr C Dowling
Solicitor for the Respondents:	Construction Forestry Mining and Energy Union (CFMEU)

Dates of No-Case Submissions:	18, 22, 23, 29, 30 and 31 July 2008
Date of Ruling:	4 August 2008