FEDERAL COURT OF AUSTRALIA

Australian Building and Construction Commissioner v Abbott [2011] FCA 306

RULING ON NO CASE SUBMISSION BY 106TH RESPONDENT

1    The 106th respondent, Mark Johnson, has made a submission that he has no case to answer. This was made soon after the applicant closed its case and before any respondent called evidence. A similar no case submission advanced on behalf of the AMWU was withdrawn. Mr Johnson, as he is entitled to do in a civil penalty case, has formally elected not to give or call evidence.

2    It is not in doubt that the Court has power to hear and determine such a submission: Cahill v Construction Forestry Mining and Energy Union (No 2) (2008) ALR 223 at [2] and the cases there cited.

3    Mr Johnson was, admittedly, at all material times relevantly a member of the AMWU and a delegate of that Union and dealt with his employer CBI Construction Pty Ltd (CBI) in that capacity.

4    This proceeding concerns alleged unlawful industrial action in October 2008 at the Phase V Expansion Project on the Burrup Peninsula in Western Australia. CBI was under contract to Woodside Energy Limited in respect to that Project. The employees who took industrial action were CBI employees. Some were members of the AMWU, others were members of the CFMEU.

5    The applicant, the Australian Building and Construction Commissioner alleges in the most recent iteration of his statement of claim that Mr Johnson contravened s 38 of the Building and Construction Industry Improvement Act 2005 (Cth) (BCII Act) which prohibits a person from engaging in unlawful industrial action. Declarations and pecuniary penalties are sought against him.

6    Apart from allegations of contravention, in his capacity as a CBI employee, it is also relevantly alleged (Statement of Claim (SOC) [65] that he has accessorial liability as having been knowingly concerned in or party to part of the unlawful industrial action in October 2008, and thereby contravened s 38(1) BCII Act.

7    This plea, so far as concerns Mr Johnson, is founded upon the allegations in SOC [26-29]. I have set them out below. I have prefaced them with the pleading in which sets out what is the pleaded “Claim” and “Threat”.

21.    On 1 October 2008, Windus accompanied by Upton:

(a)    represented to CBI that the Phase V Expansion Project had been completed (Representation);

(b)    demanded that CBI:

    (i)    terminate the employment of the Employee Respondents covered by the AMWU Collective Agreement,

    (ii)    pay out their consequential redundancy entitlements taxed at concessional rates and

    (iii)    re-employ them for the S6 and VRL packages (Claim); and

(c)    threatened that those Employee Respondents would take industrial action if CBI did not meet the Claim (Threat).

        Particulars

The Representation, the Claim and the Threat were made orally by Windus to Luskan and Guyer at the CBI premises in Karratha.

. . .

26.    On 13 October 2008, Upton, Johnson and Brown convened a meeting of a number of the Employee Respondents at the CBI site gate in Karratha.

27.    Upton addressed that meeting in respect of the Claim and the Threat.

28.     Later on 13 October 2008, at a meeting of Upton, Johnson and Brown with Luskan, Marcano and Stuurstraat:

(a)    Upton orally repeated the Claim;

(b)    Brown orally repeated the Claim;

(c)    Brown orally repeated the Representation;

(d)    Upton orally repeated the Threat; and

(e)    Upton stated that the Threat would be implemented by the Employee Respondents refusing to attend work for one week, returning to work for one day, then refusing to work for another week unless the Claim was met by CBI (Statement).

29.    At that meeting, Upton, Johnson and Brown each, by his conduct, made the Representation, the Claim, the Threat and the Statement. Their conduct included their attendance at the meeting in association with each other and their failure to disassociate themselves or the AMWU or CFMEU respectively from what was said by Upton and Brown.

8    The evidence of Kelly Luskan, the CBI Administration Manager, was that Mr Johnson was present at a meeting at around 7.30 am on 13 October 2008 that also involved herself, the Project Manager Mr Marcano, the Construction Manager Mr Stuurstraat, two CFMEU officials Mr Brown and Mr Upton. She said that “everybody was pretty well putting in their own two bobs worth sort of thing. Everyone was yelling and screaming”. However, she gave no evidence of any specific statement made by Mr Johnson. Mr Peter Stuurstraat likewise did not give evidence of anything said by Mr Johnson at that meeting.

9    Mr Stuurstraat gave evidence of a brief meeting with Mr Brown and Mr Johnson in the wet mess of the Bay Village accommodation in Karratha later on 13 October 2008. He said that he handed the notice, which was the application initiating proceedings in the Australian Industrial Relations Commission (AIRC), to Mr Johnson, who then asked “well how are we going to fly all these people to Perth to go to court”. Mr Stuurstraat’s said to Mr Johnson “that at the moment he (Johnson) is the only one who would be required to go if there was anything to happen because he is representing those guys” although he later acknowledged in chief that he was not confident of his recollection of what was said, or exactly what was said in that conversation.

10    I accept that there is no evidence that Mr Johnson convened the 13 October 2008 meeting of CBI employees as pleaded at SOC [26] or that he attended it.

11    As to the meeting with CBI management later in the morning of 13 October 2008, counsel for Mr Johnson submits that nothing in the evidence of what happened at that meeting provides any foundation for a finding that he was knowingly concerned in or party to the relevant October industrial action that occurred from 14 October 2008. Specifically, he submits that there is no evidence of any assertion, utterance, act or conduct on the part of Mr Johnson that could tenably be said to constitute a “making” of the Representation, the Claim or the Threat, or of the Statement, as pleaded at SOC [29].

12    What is necessary for accessorial liability to be made out was set out by a Full Court of this Court in Construction Forestry Mining and Energy Union v Clarke (2007) 164 IR 299 at [26] as follows:

Regardless of the precise words of the accessorial provision, such liability depends upon the accessory associating himself or herself with the contravening conduct – the accessory should be linked in purpose with the perpetrators (per Gibbs CJ in Giorgianni v The Queen (1985) 156 CLR 473 at 479-480; see also Mason J at 493 and Wilson, Deane and Dawson JJ at 500). The words “party to, or concerned in” reflect that concept. The accessory must be implicated or involved in the contravention (Ashbury v Reid [1961] WAR 49 at 51; R v Tannous (1987) 10 NSWLR 303 per Lee J at 307E-308D (agreed with by Street CJ at 304 and Finlay J at 310) or, as put by Kenny J in Emwest Products Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (2002) 117 FCR 588 at [34], must participate in, or assent to, the contravention.

13    Counsel for Mr Johnson submits that there is no evidence of any positive act of involvement or actual association, by Mr Johnson. He submits that here, there is no evidence of Mr Johnson undertaking any conduct, or having any involvement, beyond:

(a)    his mere existence at the meeting with CBI management of 7.30 am on 13 October 2008; and

(b)    receiving the application for the AIRC proceedings from Mr Stuurstraat and posing a query about how large numbers of employees could be flown for appearing.

14    The concluding submission on behalf of Mr Johnson is that none of that evidence is capable of sourcing findings of fact that Johnson, with knowledge of the essential elements of the other respondents’ October industrial action, did or omitted to do any of the things within the ambit of s 48(2)(a)-(d) of the BCII Act.

15    Accepting that the case against Mr Johnson is not in respect to all of the October industrial action, nonetheless, I do not accept his no case submission. The evidence discloses that Mr Johnson, on the same day and shortly after a meeting on 13 October 2008 of CBI employees, including members of the AMWU, attended the meeting with Marcano, Stuurstraat, Brown and Upton. He was there, on his pleaded admission, as an AMWU delegate. The evidence of Marcano, if accepted, is capable of supporting a finding that Mr Upton in Mr Johnson’s presence and hearing made the “Threat” alleged by the applicant [SOC 21(c)] in relation to the Claim [SOC 21(b)]. Mr Johnson did not, so far as concerns the AMWU, seek to disavow or in any way qualify the Threat. Moreover, the Threat, including as it did members of the AMWU, was put into effect the following day. Marcano’s evidence is capable, if accepted, of proving that Johnson associated himself with the Claim and the Threat made at the instance, it might be inferred, not only of the CFMEU but also the AMWU and in particular by Johnson on its behalf. It is open on the evidence of Marcano to conclude that Upton, Johnson and Brown attended the 13 October meeting with Marcano and Stuurstraat with a unified purpose namely to make the Threat on behalf of the CBI employees who were members of the CFMEU and the AMWU.

16    I am satisfied that, in the circumstances, Mr Johnson’s conduct as I have described it, as open on the evidence, is sufficient arguably to render him liable as an accessory to the relevant alleged unlawful industrial action under either or both of the limbs pleaded at SOC [65].

17    I would for these reasons reject the no case submission.

Associate:

Dated:    31 March 2011

SCHEDULE 1 – THE RESPONDENTS

MURRAY ARCARO

Third Respondent

MOSES ASIATA

Fourth Respondent

SERGIO BAEZ

Sixth Respondent

FRANCISCO BARRAZA

Ninth Respondent

ROLAND BAZAEZ

Twelfth Respondent

LEON BECKER

Thirteenth Respondent

PATRICK BIRD

Sixteenth Respondent

TERRANCE BISHOP

Seventeenth Respondent

ROMEO BONCATO

Nineteenth Respondent

DARREN BOXALL

Twentieth Respondent

ROBERT BROWN

Twenty-Fifth Respondent

SLAVO CEKLIC

Twenty-Eighth Respondent

KIM CHENNELL

Twenty-Ninth Respondent

JASON CHROMIAK

Thirty-First Respondent

ROBERT CLARK

Thirty-Second Respondent

DAVID COLLINS

Thirty-Fourth Respondent

DONALD COLYER

Thirty-Fifth Respondent

CHRIS CORRIGAN

Thirty-Seventh Respondent

ALLAN COUTTS

Thirty-Eighth Respondent

LANCE CRONIN

Thirty-Ninth Respondent

ANDREW CROSIER

Fortieth Respondent

RENEE CUMBERS

Forty-First Respondent

KENNETH CUMMING

Forty-Second Respondent

ALASTAIR CUNLIFFE

Forty-Third Respondent

AIDEN DAVEY

Forty-Fifth Respondent

SCOTT DEVINE

Forty-Ninth Respondent

CLAUDE DEVOS

Fiftieth Respondent

JOHN DICKSON

Fifty-First Respondent

NORMAN DODGIN

Fifty-Third Respondent

DANIEL DOYLE

Fifty-Fifth Respondent

MATT DRUMMOND

Fifty-Sixth Respondent

JOHANNES DUPLESSIS

Fifty-Ninth Respondent

WARWICK FAULKNER

Sixty-Fourth Respondent

VICTOR FAUSTINO

Sixty-Fifth Respondent

JOSE FERREIRA

Sixty-Seventh Respondent

GEORGE FITZROY

Seventy-First Respondent

DAVID FRASER

Seventy-Second Respondent

SALVATORE FRONTE

Seventy-Third Respondent

PETER GARDINER

Seventy-Fifth Respondent

LOUIE GEROVICH

Seventy-Eighth Respondent

SIMON GILBERT

Eighty-Second Respondent

TAY GOODALL

Eighty-Third Respondent

DUANE GUYATT

Eighty-Eighth Respondent

JOHN HARVEY

Ninetieth Respondent

QUINTON HEBBARD

Ninety-First Respondent

ROBERT HOLT

Ninety-Fourth Respondent

STEPHEN HONICKE

Ninety-Fifth Respondent

ANDREW HORNBY

Ninety-Sixth Respondent

CHRISTOPHER HOWARD

Ninety-Seventh Respondent

VINCENT HOWES

Ninety-Eighth Respondent

NIKOLA IVKOVIC

One Hundred and Third Respondent

DENIS JACKSON

One Hundred and Fourth Respondent

MARK JOHNSON

One Hundred and Sixth Respondent

RICHARD JONES

One Hundred and Seventh Respondent

RAYMOND JONES

One Hundred and Eighth Respondent

TURIPI KARUTJINDO

One Hundred and Tenth Respondent

EMIN KECAP

One Hundred and Eleventh Respondent

SHAUN KEILY

One Hundred and Twelfth Respondent

LENKO KORLJAN

One Hundred and Thirteenth Respondent

DARRIN LANE

One Hundred and Fifteenth Respondent

SHANE LAVELLE

One Hundred and Sixteenth Respondent

CHRISTINE LEAHY

One Hundred and Seventeenth Respondent

CHARLIE LINESS

One Hundred and Eighteenth Respondent

CLIFFORD LOGAN

One Hundred and Nineteenth Respondent

KENNETH LOGAN

One Hundred and Twentieth Respondent

DONALD MACKAY

One Hundred and Twenty-Third Respondent

JAMES MANN

One Hundred and Twenty-Fourth Respondent

DENIS MARRINER

One Hundred and Twenty-Sixth Respondent

GHEORGHE MATEIU

One Hundred and Twenty-Seventh Respondent

GREGORY MCCARTHY

One Hundred and Thirtieth Respondent

PAUL MCGEADY

One Hundred and Thirty-First Respondent

RUSSELL MCGHIE

One Hundred and Thirty-Second Respondent

JOSEPH MCGRANE

One Hundred and Thirty-Third Respondent

ALASTAIR MCGUIRE

One Hundred and Thirty-Fourth Respondent

ALAN MCKENZIE

One Hundred and Thirty-Fifth Respondent

DEAN MEDLAND

One Hundred and Thirty-Seventh Respondent

BRAD MILLER

One Hundred and Thirty-Eighth Respondent

ROBERT MITCHELL

One Hundred and Fourtieth Respondent

PASKO MITRESKI

One Hundred and Forty-First Respondent

CHRISTOPHER MOORE

One Hundred and Forty-Third Respondent

LEONARD MUDRI

One Hundred and Forty-Fourth Respondent

DARREN NEWBY

One Hundred and Forty-Sixth Respondent

JAMIE NICOLAOU

One Hundred and Forty-Seventh Respondent

JAMES ODIAM

One Hundred and Forty-Eighth Respondent

BRIAN OTTAWAY

One Hundred and Fifty-First Respondent

MANDY-LEE PALMER

One Hundred and Fifty-Second Respondent

KEN PAYNE

One Hundred and Fifty-Fifth Respondent

LOUISE PFITZNER

One Hundred and Fifty-Eighth Respondent

RICHARD PHILLIPS

One Hundred and Fifty-Ninth Respondent

SHEREE PIKE

One Hundred and Sixtieth Respondent

JOE PIZZO

One Hundred and Sixth-Second Respondent

JOHN PRATT

One Hundred and Sixty-Third Respondent

DAVID ROSSITER-MCLAREN

One Hundred and Seventieth Respondent

PHILLIP ROWELL

One Hundred and Seventy-First Respondent

TOM SABINE

One Hundred and Seventy-Third Respondent

MICHAEL SANDERS

One Hundred and Seventy-Fifth Respondent

ANTON SAXER

One Hundred and Seventy-Seventh Respondent

KEITH SHIELD

One Hundred and Eighty-First Respondent

DALE SHIRTLIFF

One Hundred and Eighty-Second Respondent

DUSKO SOBOT

One Hundred and Eighty-Fifth Respondent

GRAEME SOWDEN

One Hundred and Eighty-Seventh Respondent

BRAD SPARK

One Hundred and Eighty-Eighth Respondent

JUSTIN STUURSTRAAT

One Hundred and Ninety-Second Respondent

WAYNE SUTHERLAND

One Hundred and Ninety-Third Respondent

ALLAN TAMAPUA

One Hundred and Ninety-Fourth Respondent

KEN THACH

One Hundred and Ninety-Fifth Respondent

MICHAEL TICEHURST

One Hundred and Ninety-Sixth Respondent

NEIL TOLLISON

One Hundred and Ninety-Seventh Respondent

BRYAN TONKIN

One Hundred and Ninety-Eighth Respondent

JOHN TUIVASA

Two Hundredth Respondent

GREG UCHWAL

Two Hundred and First Respondent

PETER VARIAKOJIS

Two Hundred and Second Respondent

MAREE WAINMAN

Two Hundred and Third Respondent

MITCHELL WEIR

Two Hundred and Fourth Respondent

MICHAEL WRIGHT

Two Hundred and Sixth Respondent

LESLEY YOUNG

Two Hundred and Eighth Respondent

PERO ZUVELA

Two Hundred and Ninth Respondent

CONSTRUCTION FORESTRY MINING AND ENERGY UNION

Two Hundred and Eighteenth Respondent

BRADLEY UPTON

Two Hundred and Nineteenth Respondent

AUTOMOTIVE FOOD METALS ENGINEERING PRINTING AND KINDRED INDUSTRIES UNION

Two Hundred and Twentieth Respondent

JOHN WINDUS

Two Hundred and Twenty-First Respondent

ANDREW HOLDSWORTH

Two Hundred and Twenty-Second Respondent