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Federal Court of Australia |
Last Updated: 9 February 2007
FEDERAL COURT OF AUSTRALIA
Hadgkiss v Construction, Forestry, Mining and Energy Union (No. 3)
INDUSTRIAL RELATIONS – whether
false or misleading representations made about a person’s obligation to
join an industrial association – whether
advice, encouragement or
incitement given or provided to take discriminatory action against a person who
was eligible to join an
industrial association – whether industrial action
threatened with intent to coerce a person to agree to make an Enterprise
Bargaining Agreement
WORDS AND PHRASES
– meaning of ‘false or misleading’ in s 298SC(c) of
the Workplace Relations Act 1996
Held: contraventions of
s 298SC(c) established against all
respondents
Workplace Relations Act 1996
(Cth) ss 3, 4, 170L, 170LH, 170LI, 170LN, 170NC, 170NF(1), 170WG(2), 172,
174, 298A, 298B(1), 298B(2), 298C, 298D, 298S, 298SC(c), 298T, 298U, 298V,
347(1) and 349
Industrial Relations Act 1996 (NSW)
s 209(2)
Trade Practices Act 1974 (Cth) s 52
Customs
Act 2001 (Cth) s 229(1)(i)
Capper v
Thorpe [1998] HCA 24; (1998) 194 CLR 342
Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR
336
Rejfek v McElroy [1965] HCA 46; (1965) 112 CLR 517
Jones v Dunkel [1959] HCA 8;
(1959) 101 CLR 298
Payne v Parker [1976] 1 NSWLR
191
Hadgkiss v Construction, Forestry, Mining and Energy Union [2006] FCA 941; (2006)
152 FCR 560
Hornsby Building Information Centre Pty Limited v Sydney
Building Information Centre Limited [1978] HCA 11; (1978) 140 CLR 216
Brown v Jam
Factory Pty Limited (1981) 53 FLR 340
Murphy v Farmer [1988] HCA 31; (1988) 165
CLR 19
Re Polites; Ex Parte The Hoyts Corporation Pty Limited [1991] HCA 31; (1991)
173 CLR 78
NIGEL CLIVE
HADGKISS v CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION, CONSTRUCTION,
FORESTRY, MINING AND ENERGY UNION (NEW SOUTH
WALES BRANCH), EDMOND CASPER AND
MICHAEL LANE
NSD 1259 OF 2005
GRAHAM J
9
FEBRUARY 2007
SYDNEY
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AND:
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THE COURT ORDERS THAT:
1. The parties bring in Short Minutes to provide for declarations in accordance with the reasons for judgment of 9 February 2007.
2. The proceedings be stood over to a date to be fixed to enable submissions to be put on the question of other relief and costs.
Note: Settlement and entry of orders
is dealt with in Order 36 of the Federal Court Rules.
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BETWEEN:
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NIGEL CLIVE HADGKISS
Applicant |
|
AND:
|
CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION
First Respondent CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION (NEW SOUTH WALES BRANCH) Second Respondent EDMOND CASPER Third Respondent MICHAEL LANE Fourth Respondent |
|
JUDGE:
|
GRAHAM J
|
|
DATE:
|
9 FEBRUARY 2007
|
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PLACE:
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SYDNEY
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REASONS FOR JUDGMENT
Introduction
1 These proceedings concern alleged contraventions of certain provisions of the Workplace Relations Act 1996 (Cth) (‘the Act’) said to have been committed in the Illawarra region of New South Wales on Monday 19 January 2004, Tuesday 17 February 2004 and Wednesday 18 February 2004. Most of the contraventions are said to have occurred at a building site located in Woodhill Street, Fairy Meadow (‘the Fairy Meadow site’). The others are said to have occurred in the first and/or second respondents’ Wollongong office (‘the CFMEU office’).
2 To understand the circumstances surrounding the alleged contraventions it is also necessary to have regard to another building site located at the corner of Bank and Harbour Streets in Wollongong (‘the Wollongong site’)
3 The principal in respect of the Fairy Meadow site was Ousley Pty Limited ABN 41 073 191 992 which was represented on site by Mr Les Dowse. The head contractor at that site was Lanskey Constructions Pty Limited ABN 66 010 636 512 (‘Lanskey’). Mr David Rowland, who served as site manager for Lanskey, was Lanskey’s senior representative on the site. His general foreman or ‘2IC’ was a Mr Chris Taylor (referred to in some diary notes as ‘C.T.’) The building being constructed at the Fairy Meadow site was known as the ‘Northgate Apartments’ building. It consisted of four separate blocks - A, B, C and D. All four blocks shared a common car parking area at ground floor level. Blocks A and D had five upper floors including a loft or penthouse level. Blocks B and C were similar, but they had six upper floors including a loft or penthouse level. Approximately ten units per floor were being constructed on the upper floors of each block with approximately eight units on each loft or penthouse level. The total value of the construction was approximately $23 million. The relevant work for present purposes was gyprock plastering work in blocks A and D.
4 The head contractor in respect of the Wollongong site was Hansen Yuncken Pty Limited ABN 38 063 384 056 (‘Hansen Yuncken’). The building under construction on that site was known as ‘The Pavilions, City Beach Apartments – Stage 2’. It was a 52 unit development of about ten storeys in height. By February 2004 the main concrete structure at the Wollongong site was substantially complete and the façade with windows etc was being added to the lower floors. Once again the relevant work was gyprock plastering.
5 In the course of both building projects the contractors had dealings with Pro Finish Interiors Pty Limited ABN 16 096 811 059 (‘Pro Finish Interiors’), which in March 2005 became known as AAA Interiors Pty Limited. In January/February 2004 it traded as ‘Pro Finish Interiors’. Its principal director was Mr Spiro Repas. Its site foreman at the time was Mr Glenn Suter.
6 Lanskey also had dealings with Innovation Interiors Pty Limited ABN 89 104 518 989 (‘Innovation Interiors’). That company entered into external administration on 24 February 2005. In January/February 2004 its principal director was Mr Nenad (also known as ‘Ned’) Djukic. Its site foreman at the Fairy Meadow site was its leading hand, Mr Graham Boyd.
7 In turn, Innovation Interiors also had dealings with some of Pro Finish Interiors’ workers in respect of work at the Fairy Meadow site.
8 Innovation Interiors had a contract to carry out plastering work in respect of Blocks A, B, C and D at the Fairy Meadow site. As it was running behind with its work it had part of the work on Block A taken off it and, at the same time, all of the plastering work in respect of Block C. The work that was taken off Innovation Interiors in respect of Block A was plastering work in respect of the loft or penthouse level of that block. Thereupon, the builder retained a company known as Fast Track to attend to the plastering work in respect of the loft or penthouse level of Block A and another company was retained to carry out the plastering work in respect of Block C.
9 After about four to six weeks on the site, commencing before Christmas 2003, Fast Track left the site with some of the work on the loft or penthouse level of Block A unfinished. All the sheeting had been done. The majority of the outstanding work was to finish the setting of the sheeting – putting a coating over the gyprock – and to attend to defects. Both Innovation Interiors and Pro Finish Interiors submitted prices for the completion of Fast Track’s work but the job was awarded to Pro Finish Interiors. An order, signed by Ian Herd, a Lanskey foreman, was formally placed by Lanskey on ‘Pro Finnish (sic) Interiors’ on Monday 19 January 2004 to ‘Finnish (sic) works to block A’ – ‘A block level 4’. A day rate of $55 per hour was specified. The relevant work commenced on that day and was substantially completed on Friday 30 January 2004. Lanskey’s site foreman for Blocks A and B, Mr Andrew Green, recorded in his site diary for 30 January 2004 that Pro Finish Interiors had 5 men on site who ‘Completed A4 + Hall’. On that day Pro Finish Interiors issued a tax invoice to Lanskey for the work carried out in the period 24 January 2004 to 30 January 2004 describing the work the subject of that invoice as:
‘For the supply of tradesmen labour and materials required to carry out plasterboard defect repair works to
PROJECT*** Northgate Apartments Block A Level 4 Fairy Meadow’
The invoice proceeded to list the names of the tradesmen who had performed work together with the number of hours worked with extensions, calculated by reference to the charge out rate of $55 per hour, to which GST was added. No charge was imposed for the work of Pro Finish Interiors’ site foreman, Glenn Suter. In respect of the other workers charges were imposed for the work of Barry Sindel – 24 hours, Norm Philipp – 30 hours, Norman Philipp [Mr Norm Philipp’s son] – 32 hours, Paul Philipp [Mr Norm Philipp’s brother, Reinhard Philipp also known as ‘Paul’] – 30 hours, Anthony Summer (sic) [Anthony Summers] – 30 hours and Jimmy Gontas [Dimitrios Gontas] – 16 hours. Each of the men, whose time was charged out by Pro Finish Interiors at $55 per hour plus GST, charged Pro Finish Interiors $35 per hour plus GST for their services.
10 Notwithstanding the apparent completion of Pro Finish Interiors’ work on 30 January 2004, Mr Anthony Summers returned to carry out further work for Pro Finish Interiors at the Fairy Meadow site on Thursday 5 February 2004 and Friday 6 February 2004.
11 After Pro Finish Interiors finally completed its plastering work on the Northgate Apartments building, it left the Fairy Meadow site. However, a number of its men returned on Wednesday 18 February 2004 to carry out work on Block D after Innovation Interiors, which had the contract for that Block, sought to engage extra gyprock plasterers to enable the work on that Block to be carried out more expeditiously.
12 In relation to the Wollongong site Pro Finish Interiors was awarded the job of carrying out the plastering work for Hansen Yuncken subject to certain matters being resolved (which, in the result, were never satisfactorily resolved). On 5 February 2004 Pro Finish Interiors had submitted a quotation to Hansen Yuncken for ‘Plasterboard Fit-out works to be carried out to the above-mentioned project [THE PAVILIONS, CITY BEACH STAGE 2- WOLLONGONG]. As per plans & specifications supplied’. Under the heading ‘Lump Sum Tender Price’ the quotation recorded a ‘TOTAL PRICE’ of $1,031,236.50 which with GST produced a ‘TOTAL PRICE INCLUDING GST’ of $1,134,360.15. Part of the price was allocated to ‘Linings and Partition Works’ and the balance to ‘Ceilings and Partition Works’. The quotation was accompanied by a priced bill of quantities for the works.
13 On Monday 9 February 2004 Mr Repas of Pro Finish Interiors met with Mr Michael McEwan, Hansen Yuncken’s Project Manager for the Pavilions project to consider Pro Finish Interiors’ quotation. Mr McEwan produced a 12 page set of minutes on a standard Hansen Yuncken form headed ‘Trade Contractor Pre-Award/Induction Meeting’. Those minutes included the words ‘THESE MINUTES HAVE BEEN PREPARED IN CONSULTATION AND ARE AGREED AND ACCEPTED FOR IMPLEMENTATION BY BOTH PARTIES’. The minutes were signed for the ‘Trade Contractor’ [Pro Finish Interiors] by Mr Repas and for Hansen Yuncken by Mr McEwan. Mr McEwan’s evidence, which I accept in this regard, was as follows:
‘Q Was any arrangement come to between yourself and Mr Repas in that meeting?
A At the end of that meeting we did agree to a contract value conditional upon a few requirements being met.
Q What was the contract value?
A It was $1 million.
Q What were the conditional requirements that you discussed?
A Fundamentally the quotation was referencing a bill of quantities which we don’t particularly like. It represents a risk to the builder so I asked for him to confirm his price based on the drawings only and that the bill of quantities was issued for information only. That was the first condition and the others were that safe work method statements and safety plans were forwarded and also certificates of currency for public liability and workers’ compensation.’
The relevant statutory provisions
14 The relevant statutory provisions of which contraventions are alleged are to be found in Reprint 6 of the Act as published by the Commonwealth of Australia and printed by Authority of the Commonwealth Government Printer. They were ss 170NC, 298S(2)(a) and 298SC(c). Section 170NC is to be found in Part VIB of the Act and ss 298S and 298SC in Part XA. By virtue of s 298C, Part XA applied only to the extent provided in Division 2 of that Part. Relevantly s 298D provided:
‘298D This Part applies to:
(a) conduct by an organisation; and
(b) conduct by an officer of an organisation acting in that capacity; and
(c) conduct carried out with a purpose or intent relating to a person’s membership or non-membership of an organisation.’
15 The principal object of the Act is to be found in s 3 which relevantly provides:
‘3 The principal object of this Act is to provide a framework for cooperative workplace relations which promotes the economic prosperity and welfare of the people of Australia by:
(a) encouraging the pursuit of high employment, improved living standards, low inflation and international competitiveness through higher productivity and a flexible and fair labour market; and
...
(c) enabling employers and employees to choose the most appropriate form of agreement for their particular circumstances, whether or not that form is provided for by this Act; and
...
(f) ensuring freedom of association, including the rights of employees and employers to join an organisation or association of their choice, or not to join an organisation or association; and
...’
16 The object of Part VIB headed ‘Certified agreements’ is contained in s 170L which provides:
‘170L The object of this Part is to facilitate the making, and certifying by the Commission, of certain agreements, particularly at the level of a single business or part of a single business.’
17 The objects of Part XA headed ‘Freedom of association’ are set out in s 298A of the Act which provides as follows:
‘298A As well as the objects set out in section 3, this Part has these objects:
(a) to ensure that employers, employees and independent contractors are free to join industrial associations of their choice or not to join industrial associations; and
(b) to ensure that employers, employees and independent contractors are not discriminated against or victimised because they are, or are not, members or officers of industrial associations.’
18 Section 170NC relevantly provided as follows:
‘170NC(1) A person must not:
(a) take or threaten to take any industrial action or other action; or
(b) refrain or threaten to refrain from taking any action;
with intent to coerce another person to agree, or not to agree, to:
(c) making, varying or terminating, or extending the nominal expiry date of, an agreement under Division 2 or 3; or
(d) approving any of the things mentioned in paragraph (c).
(2) Subsection (1) does not apply to action, or industrial action, that is protected action (within the meaning of Division 8).
...’
19 Agreements under Divisions 2 and 3 to which reference was made in s 170NC were identified in ss 170LH, 170LI and 170LN as follows:
‘170LH This Division sets out requirements that must be satisfied for applications to be made to the Commission to certify certain agreements between employers who are constitutional corporations or the Commonwealth and;
(a) organisations of employees; or
(b) employees.
170LI (1) For an application to be made to the Commission under this Division, there must be an agreement, in writing, about matters pertaining to the relationship between:
(a) an employer who is a constitutional corporation or the Commonwealth; and
(b) all persons who, at any time when the agreement is in operation, are employed in a single business, or part of a single business, of the employer and whose employment is subject to the agreement.
...
170LN This Division sets out requirements that must be satisfied for an application to be made to the Commission to certify certain agreements:
(a) to settle, further settle or maintain the settlement of, or to prevent, industrial disputes; or
(b) to prevent industrial situations from giving rise to industrial disputes.’
20 Care needs to be exercised when using the definitions contained in s 4 of the Act. Those definitions are not necessarily applicable to expressions or words as used in Part VIB and Part XA.
21 In s 4 of the Act ‘industrial action’ is defined as follows:
‘industrial action (except in Part XA) means:
(a) the performance of work in a manner different from that in which it is customarily performed, or the adoption of a practice in relation to 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 award or an order of the 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; or
(ii) the work is performed, or the practice is adopted, in connection with an industrial dispute;
(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 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; or
(d) a failure or refusal by persons to attend for work or a failure or refusal to perform any work at all by persons who attend for work, if;
(i) the persons are members of an organisation and the failure or refusal is in accordance with a decision made, or direction given, by an organisation, the committee of management of the organisation, or an officer or a group of members of the organisation acting in that capacity; or
(ii) the failure or refusal is in connection with an industrial dispute; or
(iii) the persons are employed by the Commonwealth or a constitutional corporation; or
(iv) the persons are employed in a Territory;
but does not include:
(e) action by employees that is authorised or agreed to by the employer of the employees; or
(f) action by an employer that is authorised or agreed to 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 and appropriate for the employee to perform.’
22 In relation to industrial action s 4(9) of the Act provided:
‘4(9) For the purposes of this Act:
(a) conduct is capable of constituting industrial action even if the conduct relates to part only of the duties that persons are required to perform in the course of their employment; and
(b) a reference to industrial action includes a reference to a course of conduct consisting of a series of industrial actions.’
23 In relation to conduct by officers, employees and agents s 349 of the Act provided as follows:
‘349(1) Where it is necessary to establish, for the purposes of this Act, the state of mind of a body corporate in relation to particular conduct, it is sufficient to show:
(a) that the conduct was engaged in by an officer, director, employee or agent of the body corporate within the scope of his or her actual or apparent authority; and
(b) that the officer, director, employee or agent had the state of mind.
(2) Any conduct engaged in on behalf of a body corporate by:
(a) an officer, director, employee or agent of the body corporate within the scope of his or her actual or apparent authority; or
(b) any other person at the direction or with the consent or agreement (whether express or implied) of an officer, director, employee or agent of the body corporate, where the giving of the direction, consent or agreement is within the scope of the actual or apparent authority of the officer, director, employee or agent;
shall be taken, for the purposes of this Act, to have been engaged in also by the body corporate.
(3) A reference in this section to the state of mind of a person includes a reference to the knowledge, intent, opinion, belief or purpose of the person and the person’s reasons for the intent, opinion, belief or purpose.’
24 Sections 298S and 298SC relevantly provided as follows:
‘298S (1) In this section:
discriminatory action, in relation to an eligible person, means:
(a) a refusal to make use of, or to agree to make use of, services offered by the eligible person; or
(b) a refusal to supply, or to agree to supply, goods or services to the eligible person.
eligible person means a person who is not an employee, but who:
(a) is eligible to join an industrial association; or
(b) would be eligible to join an industrial association if he or she were an employee.
(2) An industrial association, or an officer or member of an industrial association, must not:
(a) advise, encourage or incite a person (whether an employer or not) to take discriminatory action against an eligible person because the eligible person is not a member of an industrial association; or
...
298SC A person must not make a false or misleading representation about:
...
(c) another person’s obligation to join an industrial association.’
25 In s 298B(1) of the Act (which forms part of Part XA) ‘industrial association’ was defined, unless the contrary intention appears, to mean:
‘(a) an association of employees and/or independent contractors, or an association of employers, that is registered or recognised as such an association (however described) under an industrial law; or
(b) an association of employees and/or independent contractors a principal purpose of which is the protection and promotion of their interests in matters concerning their employment, or their interests as independent contractors, as the case requires; or
(c) an association of employers a principal purpose of which is the protection and promotion of their interests in matters concerning employment and/or independent contractors;
and includes a branch of such an association, and an organisation.’
26 Under s 298B(1) ‘organisation’ was defined to include ‘a branch of an organisation’. In s 4(1) ‘organisation’ was defined to mean ‘an organisation registered under the Registration and Accountability of Organisations Schedule’ i.e. Schedule 1B to the Act.
27 Under s 298B(1), ‘officer’, in relation to an industrial association, was defined to include:
‘(a) a delegate or other representative of the association; and
(b) an employee of the association.’
28 In relation to the vicarious liability of industrial associations for the action of its officers or agents s 298B(2) of the Act relevantly provided:
‘298B(2) For the purposes of this Part, action done by one of the following bodies or persons is taken to have been done by an industrial association:
...
(b) an officer or agent of the industrial association acting in that capacity;
...’
29 In relation to conduct within Part XA of the Act s 298V provided for a reversal of the onus in respect of establishing matters of intent as follows:
‘298V If:
(a) in an application under this Division relating to a person's or an industrial association's conduct, it is alleged that the conduct was, or is being, carried out for a particular reason or with a particular intent; and
(b) for the person or industrial association to carry out the conduct for that reason or with that intent would constitute a contravention of this Part;
it is presumed, in proceedings under this Division arising from the application, that the conduct was, or is being, carried out for that reason or with that intent, unless the person or industrial association proves otherwise.’
30 Section 298V of the Act fell within Division 6 of Part XA. Section 298T, which also fell within Division 6, provided for the making of applications to the Court for orders under s 298U in respect of conduct in contravention of Part XA.
Section 298U provided as follows:
‘298U In respect of conduct in contravention of this Part, the Court may, if the Court considers it appropriate in all the circumstances of the case, make one or more of the following orders:
(a) an order imposing on a person or industrial association whose conduct contravened or is contravening the provision in question a penalty of not more than:
(i) in the case of a body corporate - $10,000; or
(ii) in any other case - $2,000;
(b) an order requiring the person or industrial association to reinstate an employee, or to re-engage an independent contractor;
(c) an order requiring the person or industrial association to pay to an employee or independent contractor, or to a prospective employee or independent contractor, compensation of such amount as the Court thinks appropriate;
(d) an order requiring the person or industrial association not to carry out a threat made by the person or association, or not to make any further threat;
(e) injunctions (including interim injunctions), and any other orders, that the Court thinks necessary to stop the conduct or remedy its effects;
(f) any other consequential orders.’
31 These proceedings were commenced on 27 July 2005 by the filing of an Application accompanied by a Statement of Claim. Whilst no mention was made of s 298V in the Application as such, nevertheless reference was made to it in paragraph 44 of the Statement of Claim as follows:
‘44 By section 298V of the Act it is presumed that the Third Respondent advised, encouraged or incited as pleaded in paragraph 43 because each ABN worker was not a member of the First Respondent and/or Second Respondent.’
In relation to the cross reference to paragraph 43 it is sufficient for present purposes to refer to the alleged contravention of s 298S(2)(a)referred to at [74(m)] of these reasons.
The personnel involved
32 Before detailing the contraventions of the Act for which the applicant contends, it is appropriate to identify in greater detail some of the personnel involved.
33 As mentioned above Mr Rowland served as Lanskey’s site manager at the Fairy Meadow site and his general foreman or ‘2IC’ was Mr Taylor. Lanskey’s contracts administrator was Mr John Miller, the foreman in charge of finishing trades for Blocks A and B was Mr Andrew Green and the foreman in charge of finishing trades for blocks C and D was Mr Ian Herd. Other employees working for Lanskey, from time to time, included Matt Reynolds, Anthony Tate, Andrew Fox and Edmond Erwin Casper, also known as ‘Skip’ Casper.
34 Whilst Lanskey itself only employed a small number of people to work for it at the Fairy Meadow site, there were as many as 180 workers on site at any given point in time.
35 Mr Casper, who is the third respondent, served as a storeman and site safety officer for Lanskey. He was described at times as a ‘first aid officer’, as a ‘gofor’ and as a ‘labourer’.
36 In relation to the Wollongong site, as mentioned above, Mr McEwan served as Hansen Yuncken’s project manager. The site manager was Mr Lance Bowman and the site safety officer was Mr Graham Clinton.
37 It is common ground that the first respondent is, and at all material times was, an organisation of employees registered under Schedule 1B to the Act and, as such, liable to be sued in its registered name, and also an industrial association within the meaning of s 298B(1) of the Act.
38 It is also common ground that the second respondent is, and at all material times was, an industrial association within the meaning of s 298B(1) of the Act.
39 In 2003 – 4 the standard CFMEU membership application form made provision for an applicant to record his or her names, address, telephone numbers, date of birth, gender, first language and trade/job. It also made provision for the relevant work area to be identified be it ‘construction’, ‘manufacturing/joinery’, ‘government’ or ‘elsewhere’. The standard membership application form included the following:
‘I hereby make application for membership of the Construction, Forestry, Mining and Energy Union and the CFMEU (NSW Branch) being the organisation registered under Federal and NSW Industrial Legislation and if admitted, agree to conform to the rules. Further, I request and authorise the CFMEU to represent my interests in relation to any agreement relating to my employment which is proposed to be negotiated under the Workplace Relations Act 1996 or the Industrial Relations Act 1996 (NSW). In the event that such agreement is negotiated under part VI D of the former Act I hereby appoint the CFMEU as my bargaining agent.’
Part VI D of the Act made provision for Australian workplace agreements.
40 Later in the application form provision was made in respect of resignation from the Union as follows:
‘Members wishing to resign from the union must be financial and are required to write a letter to resign.
If you do not send a letter your union dues will continue to accrue and you will be liable for all dues in accordance with the rules.’
41 The Union, originally registered as the Building Workers’ Industrial Union of Australia under the Conciliation and Arbitration Act 1904 – 1961 (Cth) became, upon an amalgamation, the Construction, Forestry, Mining and Energy Union in September 1992.
42 The Construction, Forestry, Mining and Energy Union operates on a divisional basis, the relevant division for present purposes being the ‘Construction and General Division’.
43 In 2003 – 4 the practice of the Union was to issue receipts for Union dues in the name of the NSW Divisional Branch endorsed ‘RECEIVED ON BEHALF OF CFMEU’.
44 In January – February 2004 the CFMEU office in Wollongong was a green coloured building opposite the Wollongong railway station. It was manned at the time by three persons being two organisers and an office assistant. The organisers were Michael Richard Lane, also known as ‘Mick’ Lane, and Peter Primmer. As at 18 February 2004 the position of office assistant was filled by Janet McIntosh. Her predecessor had been a lady known as Tanya.
45 Mr Lane, who is the fourth respondent, worked as an organiser of the CFMEU in the Wollongong area. He represented members of the Federal Union and the State Union in that area amongst others. Mr Lane was an elected representative of the New South Wales branch to the Federal Divisional Conference of the CFMEU. According to his PAYG payment summaries his employer was the body identified with the Australian Business Number of Withholder Payer Number 17 524 350 156 which would appear to have been the ABN for the Construction and General Division of the second respondent.
46 Mr Lane carries a Federal right of entry in respect of Federal Industrial Relations and a State right of entry in respect of NSW Industrial Relations. In his role as an organiser Mr Lane negotiates and agrees enterprise bargaining agreements which are certified under the Act. Part of his function as an organiser was to sign up members into the Federal and State organisations. Part of his role was to approve delegates of the Union as representatives of the CFMEU at particular workplaces and to supervise such delegates. When asked about ‘supervising’ delegates Mr Lane said:
‘... I’m not sure that that’s really the right word but basically delegates are elected by the members on a job site to carry out something by way of a contact point with the official that may be primarily responsible for the supervising or overseeing that particular worksite.’
47 In relation to the Fairy Meadow site and the Wollongong site Mr Lane was the person in the CFMEU office who was responsible for those two sites in January – February 2004.
48 Mr Lane answered to Mr Peter Zeboyak, one of the Assistant State Secretaries of the CFMEU. At the Fairy Meadow site the Union Delegate was Mr Skip Casper and at the Wollongong site the Union delegate was Mr Graham Clinton.
49 Work commenced at the Fairy Meadow site in late 2002. In about December 2002 Mr Rowland moved from Queensland, where Lanskey is based, to New South Wales to take up his appointment as site manager at the Fairy Meadow site.
50 In early 2003 Mr Lane contacted Mr Rowland to enquire whether Lanskey would consider hiring Mr Casper on the understanding that he would also serve as the CFMEU site delegate. Mr Rowland proceeded to employ Mr Casper as a storeman on the basis that he would also carry out site induction including occupational health and safety on the Fairy Meadow site.
51 In relation to the Wollongong site new workers were inducted by Mr Clinton on behalf of Hansen Yuncken.
52 Mr Rowland says that when he was interviewing Mr Casper he said words to the effect:
‘... you must clearly understand that you cannot enforce unionism on this site or any other site. Unionism is voluntary.’
to which he says Mr Casper responded with words to the effect ‘Yes, I understand that’.
53 Mr Casper’s evidence is that Mr Rowland said words to the effect:
‘... although you will be the union delegate, you must know that unionism is voluntary. You can’t throw people off site just because they don’t want to be in the union. There’s freedom of association laws and there will be legal problems if you try to force people to be in the union.’
Mr Casper also contends that Mr Rowland or Mr Miller said to him words to the effect:
‘I have no problem with you discussing the men’s Union membership after they have been inducted.’
54 In or about March 2003 Mr Casper completed a ‘CFMEU Delegates Registration Form’. The form made provision for a name, address, telephone numbers and union number to be inserted in it together with an indication as to whether the relevant registrant worked in ‘Construction’, ‘Manufacturing’, ‘Government’ or ‘other’. Mr Casper inserted his details and nominated his employer as ‘Lanskey’. The form also made provision for one of ten odd awards to be ticked as the relevant award. In Mr Casper’s case he ticked ‘National Construction Award’.
55 One purpose of the delegates registration form was to deal with commissions payable on union fees that a delegate may collect. The form signed by Mr Casper included:
‘As a delegate you will be entitled to receive on request 5% commission on all union fees you collect. However you must pay in all fees collected and your commission will be processed by the union office. Please select:
[omicron] I seek payment of the 5% commission
...
[omicron] I authorise the 5% commission to be paid to the CFMEU Fighting Fund’
Mr Casper ticked the second box authorising his 5% commission to be paid into the CFMEU Fighting Fund.
56 Rule 57 of the rules of the Construction and General Division and Construction and General Divisional Branches of the first respondent made provision for the appointment of job delegates. Rule 57 relevantly provided:
‘... job delegates may be appointed by the Divisional Branch Management Committee or appointed by the members in such ... job. They shall receive proper credentials from the Divisional Branch Management Committee.
(a) It shall be the duty of all ... job delegates to endeavour to enrol appropriate workers in their respective ... jobs into the Union.
(b) They may receive contributions from members in such ... jobs and issue a receipt from a receipt book provided by the Divisional Branch Management Committee.
(c) They shall be responsible for the payments of all monies received by them to the Divisional Branch fortnightly.
...’
57 On 28 March 2003 Mr Casper signed a ‘CFMEU Code of Conduct for Union Delegates’ form, his signature being witnessed by Mr Lane. The Code of Conduct included the following:
‘I, Edmond E Casper union number 282280 hereby agree to abide to the best of my capacity by the CFMEU Code of Conduct for union delegates as detailed below:
...
10. To ensure that all workers on site are financial members of the relevant union, and to receipt all monies received from members in the appropriate receipt book, and paid to the union office on a regular basis.
...
12. To contact the CFMEU area organiser in respect of any major problem and/or dispute and/or stoppage that has or may arise and to advise him/her of the progress of results of that dispute if they cannot attend.
...’
58 Paragraph 10 of the CFMEU Code of Conduct for Union Delegates, and, in particular use of the word ‘ensure’, does not sit comfortably with the objects of Part XA of the Act.
59 Innovation Interiors’ engagement to carry out plastering work at the Fairy Meadow site dated back to May 2003. It appears to have had well over 30 men working for it at one time or another.
60 When Pro Finish Interiors was carrying out work for Lanskey at the Fairy Meadow site it would appear to have had about ten men working for it at one time or another. They included Glenn Suter, Barry Sindel, Norm Philipp (Norman Philipp Snr), Norman Philipp Jnr, Reinhard (‘Paul’) Philipp, Anthony Summers and Dimitrios Gontas.
61 On Wednesday 18 February 2004 Barry Sindel, Norm Philipp, Reinhard Philipp and Anthony Summers returned to work on the Fairy Meadow site but this time for Innovation Interiors. On this occasion they were joined by Tony Morgan, Geoff Harnett and Albert Lilley.
62 Barry Sindel, Norm Philipp, Reinhard Philipp, Anthony Summers, Tony Morgan, Geoff Harnett and Albert Lilley had all been working together for Pro Finish Interiors at the Wollongong site on the previous Monday.
63 It was Lanskey’s practice to record the names of newly inducted workers at the Fairy Meadow site on forms, printed in landscape, which made provision for the nomination of a ‘Company’ and for the insertion of details of ‘Sub-contractor Employee’.
64 In the case of Lanskey, induction was effected first thing in the morning by having newly arriving workers complete a form entitled ‘SITE PERSONELL (sic) REGISTER’, later ‘NEW EMPLOYEE DETAILS’, which made provision for a number of particulars to be inserted. For Lanskey the form was one page in length. In relation to Hansen Yuncken newly arriving workers were required to complete a similar form. In the Hansen Yuncken case the form was two pages in length and entitled ‘SITE INDUCTION FORM’. In the case of Hansen Yuncken there was no procedure for recording the names of individual workers on a progressive list in respect of each sub-contractor.
65 When Barry Sindel, Norm Philipp, Reinhard Philipp and Anthony Summers returned to the Fairy Meadow site on 18 February 2004 they were not then recorded as Innovation Interiors’ workers. Rather, Lanskey’s list of Pro Finish Interiors workers was updated by Mr Casper, with the addition of the names of Tony Morgan, Geoff Harnett and Albert Lilley, and then copied and adapted by him by the addition of asterisks on the copy, which he had made, against the names of Barry Sindel, Norm Philipp, Reinhard Philipp, Tony Morgan, Geoff Harnett and Albert Lilley. Another asterisk was added at the top of the copy reading:
‘18 Feb 04
ON LOAN TO
INNOVATION INTERIOR (sic)’
At a later stage Mr Casper added an asterisk against Mr Summers’ name, but this was not recorded on the original copy which he made.
66 In point of fact, Pro Finish Interiors had no involvement at all in the work undertaken by these men upon their return to or arrival at the Fairy Meadow site on 18 February 2004. Each of the men, apart from Barry Sindel, appears to have invoiced Innovation Interiors for the work performed by them on 18 February 2004 at the rate of $33 per hour plus GST (cf the rate of $35 per hour plus GST previously charged to Pro Finish Interiors for work at the Fairy Meadow site). Barry Sindel only charged $32 per hour plus GST. Bryan Harnett, Geoff Harnett’s son, who commenced working for Innovation Interiors at the Fairy Meadow site on 19 February 2004, also charged $33 per hour plus GST.
67 Under s 8 of A New Tax System (Australian Business Number) Act 1999 (Cth) it was possible for entities that carried on enterprises in Australia to be provided with an Australian Business Number (‘ABN’). ‘Enterprise’ covered all business and trading activities. However, activities in a person’s capacity as an employee were excluded from those of an enterprise.
68 Each of Norm Philipp, Reinhard Philipp, Anthony Summers, Barry Sindel,
Tony Morgan, Albert Lilley, Geoff Harnett and Bryan Harnett,
carried on business
as part of entities registered with their own ABNs.
Norm Philipp carried on
business in partnership with his wife as N & M Philipp under ABN
19736995679, Reinhard Philipp carried
on business in partnership with his wife
as R & M M Philipp under ABN 26940466534 and Anthony Summers carried on
business in
partnership with Hua Ping as Ruse Linings under ABN 52589917303.
Barry Sindel carried on business on his own account under ABN 48687228924.
Losses sustained by Norm Philipp, Reinhard Philipp and Anthony Summers
69 On Wednesday 18 February 2004 each of Norm Philipp, Reinhard Philipp, Anthony Summers, Barry Sindel, Tony Morgan, Albert Lilley and Geoff Harnett worked at the Fairy Meadow site for Innovation Interiors for eight hours. For reasons which will become clear, neither Norm Philipp nor Reinhard Philipp returned to the Fairy Meadow site after Wednesday 18 February 2004. Norm Philipp claims that he was, as a result of ‘incidents’ at the Fairy Meadow site on Wednesday 18 February 2004 out of work from and including Thursday 19 February 2004 until Tuesday 2 March 2004. He claims that his loss in respect of the period when he was out of work was approximately $2,740. I am satisfied that Norm Philipp sought, but was unable to obtain any, work for his business in the period 19 February 2004 – 2 March 2004. To the extent to which the loss sustained by his business may be attributed to ‘the incidents’ at the Fairy Meadow site on Wednesday 18 February 2004, that loss was in my opinion equal to $2,552, exclusive of GST, calculated as follows:
9 days x 8 hours x $33 per hour $2,376
2 days x 6 hours x $33 per hour $396
$2,772
Less fuel 11 days @ $20 per day $220
$2,552
The above calculation proceeds on the premise that Mr Norm Philipp worked eight hours per day, five days a week and six hours a day on Saturdays with his business charging, as it did on 18 February 2004, $33 per hour at all relevant times.
70 The late Mr Reinhard Philipp’s evidence was that he was also out of work from and including Thursday 19 February 2004 to Tuesday 2 March 2004. He says that he lost a total of $3,850 in income excluding GST on the basis that he would have otherwise been working eight hours per day at $35 per hour for six days a week. To the extent to which the loss sustained by Mr Reinhard Philipp’s business may be attributed to the incidents at the Fairy Meadow site on Wednesday 18 February 2004, that loss was in my opinion equal to $2,904, exclusive of GST, calculated as follows:
11 days x 8 hours x $33 per hour (the rate which
he charged for work on 18 February 2004) $2,904
71 Anthony Summers claims that as a result of incidents occurring at the Fairy Meadow site on Friday 20 February 2004 he found himself out of work from and including Saturday 21 February 2004 to Tuesday 2 March 2004. He claims that after allowing for the cost of fuel at $11.66 per day he suffered a loss of approximately $2,275. It seems to me that the loss which Mr Summers’ business sustained as a result of being out of work for the period mentioned was correctly calculated at $2,271, exclusive of GST, assuming that Mr Summers worked for eight hours per day six days a week as follows:
9 days x 8 hours x $33 per hour (the rate which
he charged for work on 18 – 20 February 2004) $2,376
Less petrol for 9 days @ $11.66 per day equals approximately $105
Net loss $2,271
The relief sought
72 In his application filed 27 July 2005 the applicant has sought numerous declarations in respect of alleged contraventions by the first, second, third and/or fourth respondents of s 298SC(c) of the Act, orders under s 298U of the Act imposing penalties on the first, second, third and fourth respondents in respect of conduct in contravention of s 298SC(c) of the Act, numerous declarations in respect of alleged contraventions by the first, second, third and/or fourth respondents of s 298S(2)(a) of the Act, orders under s 298U of the Act imposing penalties on the first, second, third and fourth respondents in respect of conduct in contravention of s 298S(2)(a) of the Act, orders under s 298U of the Act that the first, second, third and fourth respondents pay compensation to Mr Norm Philipp, Mr Reinhard Philipp and Mr Anthony Summers in respect of the alleged contraventions of s 298S(2)(a) of the Act, declarations that by certain conduct the first, second and fourth respondents contravened s 170NC of the Act, orders under s 170NF(1) of the Act imposing penalties on the first, second and fourth respondents in respect of their contraventions of s 170NC of the Act and injunctive relief in respect of further contraventions of ss 298SC(c), 298S(2)(a) and 170NC.
73 When senior counsel for the applicant opened the applicant’s case on 17 July 2006 he indicated that injunctive relief was no longer sought. In addition, in the course of his submissions on 6 September 2006 he informed the Court that allegations in respect of contraventions of s 298S(2)(a), as a result of conduct of the fourth respondent said to have taken place on or about 18 February 2004, were no longer pressed.
The alleged contraventions
74 This leaves for consideration the following alleged contraventions of the Act:
Section 298SC(c)
Third Respondent
(a) On Monday 19 January 2004 the third respondent made a false or misleading representation to each of Norm Philipp, Reinhard Philipp, Anthony Summers, Barry Sindel and Norman Philipp Jnr that he was obliged to join the first respondent and/or the second respondent in order to work on the Fairy Meadow site (see Application paragraph 2).
Fourth Respondent
(b) On Tuesday 17 February 2004 the fourth respondent made a false or misleading representation to Glenn Suter that each of Norm Philipp, Reinhard Philipp, Anthony Summers and Barry Sindel was obliged to join the first respondent and/or the second respondent in order to work on the Fairy Meadow site, the Wollongong site and any other site in the Wollongong area (see Application paragraph 3(a)).
(c) On Wednesday 18 February 2004 the fourth respondent made a false or misleading representation to Norm Philipp and Reinhard Philipp that each of Norm Philipp and Reinhard Philipp was obliged to join the first respondent and/or the second respondent in order to continue working on the Fairy Meadow site, or to work on the Wollongong site or any other site in Wollongong (see Application para 3(b)).
(d) On Wednesday 18 February 2004 the fourth respondent made a false or misleading representation to Anthony Summers that he was obliged to join the first respondent and/or the second respondent in order to continue working on the Fairy Meadow site, or to work on the Wollongong site (see Application para 3(c)).
First Respondent
(e) On Monday 19 January 2004, by the action of the third respondent referred to in (a) above, the first respondent made a false or misleading representation about the obligation of each of Norm Philipp, Reinhard Philipp, Anthony Summers, Barry Sindel and Norman Philipp Jnr to join the first respondent and/or the second respondent (see Application para 1(a)).
(f) On Tuesday 17 February 2004, by the action of the fourth respondent referred to in (b) above, the first respondent made a false or misleading representation to Glenn Suter about the obligation of each of Norm Philipp, Reinhard Phillip, Anthony Summers and Barry Sindel to join the first respondent and/or the second respondent (see Application para 1(b)).
(g) On Wednesday 18 February 2004, by the action of the fourth respondent referred to in (c) above, the first respondent made a false or misleading representation about the obligation of each of Norm Philipp and Reinhard Philipp to join the first respondent and/or the second respondent (see Application para 1(c)).
(h) On Wednesday 18 February 2004, by the action of the fourth respondent referred to in (d) above the first respondent made a false or misleading representation about the obligation of Anthony Summers to join the first respondent and/or the second respondent (see Application para 1(d)).
Second Respondent
(i) On Monday 19 January 2004, by the action of the third respondent referred to in (a) above, the second respondent made a false or misleading representation about the obligation of each of Norm Philipp, Reinhard Philipp, Anthony Summers, Barry Sindel and Norman Philipp Jnr to join the first respondent and/or the second respondent (see Application para 1(a)).
(j) On Tuesday 17 February 2004, by the action of the fourth respondent referred to in (b) above, the second respondent made a false or misleading representation to Glenn Suter about the obligation of each of Norm Philipp, Reinhard Phillip, Anthony Summers and Barry Sindel to join the first respondent and/or the second respondent (see Application para 1(b)).
(k) On Wednesday 18 February 2004, by the action of the fourth respondent referred to in (c) above, the second respondent made a false or misleading representation about the obligation of each of Norm Philipp and Reinhard Philipp to join the first respondent and/or the second respondent (see Application para 1(c)).
(l) On Wednesday 18 February 2004, by the action of the fourth respondent referred to in (d) above the second respondent made a false or misleading representation about the obligation of Anthony Summers to join the first respondent and/or the second respondent (see Application para 1(d)).
Section 298S(2)(a)
Third Respondent
(m) On Wednesday 18 February 2004 the third respondent advised, encouraged or incited Mr Nenad Djukic and Innovation Interiors to refuse to make use of or to agree to make use of services said to have been offered by each of Norm Philipp, Reinhard Philipp, Anthony Summers, Barry Sindel and Norman Philipp Jnr because each of Norm Philipp, Reinhard Philipp, Anthony Summers, Barry Sindel and Norman Philipp Jnr was not a member of the first respondent and/or the second respondent (see Application para 7).
First Respondent
(n) On Wednesday 18 February 2004, by the action of the third respondent referred to in (m) above, the first respondent advised encouraged or incited Mr Nenad Djukic and Innovation Interiors to refuse to make use of or to agree to make use of the services said to have been offered by each of Norm Philipp, Reinhard Philipp, Anthony Summers, Barry Sindel and Norman Philipp Jnr because each of Norm Philipp, Reinhard Philipp, Anthony Summers, Barry Sindel and Norman Philipp Jnr was not a member of the first respondent and/or the second respondent (see Application para 6(a)).
Second Respondent
(o) On Wednesday 18 February 2004, by the action of the third respondent referred to in (m) above, the second respondent advised encouraged or incited Mr Nenad Djukic and Innovation Interiors to refuse to make use of or to agree to make use of the services said to have been offered by each of Norm Philipp, Reinhard Philipp, Anthony Summers, Barry Sindel and Norman Philipp Jnr because each of Norm Philipp, Reinhard Philipp, Anthony Summers, Barry Sindel and Norman Philipp Jnr was not a member of the first respondent and/or the second respondent (see Application para 6(b)).
Section 170NC
Fourth Respondent
(p) On Tuesday 17 February 2004 the fourth respondent threatened to take industrial action or other action with intent to coerce Pro Finish Interiors to agree to make an agreement under Division 2 or 3 of Part VI B of the Act between the first respondent and/or the second respondent and Pro Finish Interiors (see Application para 13).
First Respondent
(q) On Tuesday 17 February 2004, by the conduct of the fourth respondent referred to in (p) above, the first respondent threatened to take industrial action or other action with intent to coerce Glenn Suter and/or Pro Finish Interiors to agree to make an agreement under Division 2 or 3 of Part VI B of the Act between the first respondent and/or the second respondent and Pro Finish Interiors (see Application para 12(a)).
Second Respondent
(r) On Tuesday 17 February 2004, by the conduct of the fourth respondent referred to in (p) above, the second respondent threatened to take industrial action or other action with intent to coerce Glenn Suter and/or Pro Finish Interiors to agree to make an agreement under Division 2 or 3 of Part VI B of the Act between the first respondent and/or the second respondent and Pro Finish Interiors (see Application para 12(b)).
75 Notwithstanding an element of confusion arising from the cross-referencing of claims in the Application to various paragraphs in the Statement of Claim and the definitions of expressions used therein, the parties are agreed that the above formulations of the alleged contraventions are the ones which the Court is required to address.
76 In relation to the claimed contraventions by the first and second respondents, the applicant’s case is that the relevant contraventions occurred by virtue of conduct engaged in by the third respondent or the fourth respondent as the case may be. Whilst no formal concession was made that any conduct engaged in by the third or fourth respondent in contravention of the Act would give rise to contraventions by the first and second respondents, no argument was advanced by counsel for the respondents that liability on a representational basis could be visited on one only of the Union bodies. The only distinction to which attention was drawn related to the alleged contraventions of s 170 NC of the Act in respect of which counsel for the respondents submitted that it would be ‘hard to think that the State organisation would have an interest in coercing anybody to make a Federal agreement’.
The Union’s Constitution and Rules
77 Clause 28 of the Constitution of the first respondent made provision for State branches. Clause 28(i) provided:
‘28(i) There shall be branches of the Union in the States of Queensland, New South Wales, Victoria, Tasmania, Western Australia, South Australia, and in the Australian Capital Territory, and in such other States or places as may be decided.’
78 Under the Constitution provision was made for branch rules. In relation to membership of branches clause 44 of the Constitution provided:
‘44 All members of all Divisional Branches within the State or Territory shall be members of the Branch with the same status of membership as is held in the Divisional Branch.’
79 The Constitution provided for an unlimited number of persons, whether male or female, to constitute the Union who were:
‘(1) employed in ... or seeking to be employed in or in connection with the industry or industries and/or occupations, and/or calling, and/or vocations and/or industrial pursuits of
and/or
(2) who, otherwise than as employees ... follow an occupation in or in connection with the industry or industries of:
and/or
(3) who, otherwise than as employees ..., are engaged in the industrial pursuit or pursuits of:
(i) carpenters or joiners ... tilelayers ... stonemasons ... bricklayers ...
...
(ii) the process or trade or business as a: plasterer, fixer ... employed in internal and/or external plastering, ...’
80 The Constitution provided for candidates for membership to make application to the National Secretary, the Division covering the occupation or industry in which the persons were employed, the Branch covering the area in which the persons were employed or resided, or the Divisional Branch covering the industry or occupation in which the persons were employed, usually employed or desirous of being employed and the area in which the persons resided or were employed and further for such applications to be made and dealt with in the manner and subject to the conditions, including conditions as to any probationary period, required by the rules of the Division. The Constitution provided in clause 7(vii):
‘7(vii) A member shall, when applying for membership be informed of the financial obligations arising from membership and the circumstances, and the manner, in which a member may resign from the organisation and shall be informed of such in writing.’
81 There is no evidence in relation to the Union’s discharge of its obligations under clause 7(vii) in this case. The printed material appearing on the 2003-4 standard CFMEU Membership Application form set out above at [40] does not appear to satisfy this requirement, although that may have been its intended purpose.
82 Clause 8(ii) of the Constitution dealt with members who were not financial. It provided:
‘8(ii) Any member who has failed to pay the entrance fees, or contributions, levies and fines imposed in accordance with the rules of the union on or before the date specified in such rules, shall be deemed to be unfinancial, and shall not be eligible to receive any benefits, participate in any deliberations, propose or second any new applicant for admission or exercise any authority or any membership rights, provided that the rules may provide that some members or some class or classes of members may vote in a ballot and/or may differentiate between classes of members as to the amount of any contribution and/or entrance fee.’
83 Resignation from membership of the Union was dealt with in clause 11 of the Constitution as follows:
‘11(1) A member may resign from membership of the Union by a written notice addressed and delivered to the Divisional Branch Secretary or other officer of the Divisional Branch authorised to receive such correspondence.
(2) The notice of resignation will take effect where that member,
(a) ceases to be eligible to become a member of the Union:
(i) on the day on which the notice is received by the Union; or
(ii) on the day specified in the notice, which is a day not earlier than the day when the member ceases to be eligible to be a member;
whichever is later; or
(b) in any other case:
(i) at the end of 2 weeks after the notice is received by the Union; or
(ii) on the day specified in the notice;
whichever is later.
(3) All contributions and or levies due in relation to the period before the members resignation took effect are to be paid. Where the member fails to do so the Union may prosecute such member in the appropriate court for the recovery of that amount.
(4) A notice delivered to the person mentioned in sub-rule (1) shall be taken to have been received by the Union when it was delivered.
(5) A notice of resignation that has been received by the Union is not invalid because it was not addressed and delivered in accordance with sub-rule (1).
(6) A resignation from membership of the union is valid even if it is not effected in accordance with this rule if the member is informed in writing by or on behalf of the union that the resignation has been accepted.’
The Registration and Accountability provisions of the Act
84 Termination of membership is covered by ss 171 – 174 of Schedule 1B to the Act. Relevantly ss 172 and 174 provided:
‘172(1) If:
(a) the rules of an organisation require a member to pay dues in relation to the person’s membership of the organisation; and
(b) the member has not paid the amount; and
(c) a continuous period of 24 months has elapsed since the amount became payable; and
(d) the member’s name has not been removed from the register kept by the organisation under paragraph 230(1)(a);
the organisation must remove the name and postal address of the member from the register within 12 months after the end of the 24 month period.
(2) In calculating a period for the purposes of paragraph (1)(c), any period in relation to which the member was not required by the rules of the organisation to pay the dues is to be disregarded.
(3) A person whose name is removed from the register under this section ceases to be a member of the organisation on the day his or her name is removed. This subsection has effect in spite of anything in the rules of the organisation.
...
174(1) A member of an organisation may resign from membership by written notice addressed and delivered to a person designated for the purpose in the rules of the organisation or a branch of the organisation.
(2) A notice of resignation from membership of an organisation takes effect:
...
(b) ...:
(i) at the end of 2 weeks, or such shorter period as is specified in the rules of the organisation, after the notice is received by the organisation; or
(ii) on the day specified in the notice;
whichever is later.’
(3) Any dues payable but not paid by a former member of an organisation, in relation to a period before the member’s resignation from the organisation took effect, may be sued for and recovered in the name of the organisation, in a court of competent jurisdiction, as a debt due to the organisation.
(4) A notice delivered to the person mentioned in subsection (1) is taken to have been received by the organisation when it was delivered.
(5) A notice of resignation that has been received by the organisation is not invalid because it was not addressed and delivered in accordance with subsection (1).
(6) A resignation from membership of an organisation is valid even if it is not effected in accordance with this section if the member is informed in writing by or on behalf of the organisation that the resignation has been accepted.’
Union membership status
85 It may be observed that the statement in the standard CFMEU membership application form that ‘Members wishing to resign from the union must be financial ...’ (see [40]) does not sit comfortably with the stipulations in respect of resignation from the Union as set out in clause 11 of the Constitution of the first respondent or s 174 of Schedule 1B to the Act.
86 Be that as it may, it is important, for present purposes, that the Union membership status of Norm Philipp, Reinhard Philipp, Anthony Summers, Barry Sindel and Norman Philipp Jnr in January/February 2004 be addressed.
87 It seems clear that at some time or other Norm Philipp, Reinhard Philipp, Anthony Summers, Barry Sindel and Norman Philipp Jnr had all been members of the Union. However, by 18 February 2004 Anthony Summers was no longer a member of the Union. Furthermore, the Union did not consider him or have reason to consider him at that time to be a member. On 31 May 2001 the Union wrote to Mr Summers informing him that his application to resign had been received and processed and that his membership had been finalised. He was issued with a ‘Clearance’ certificate recording that he had paid all fees, fines, levies and dues and was ‘Cleared from the Union’ The respective Union numbers of the other workers appear to have been Norm Philipp - 292276, Reinhard Philipp - P10157, Barry Sindel - 223139 and Norman Philipp Jnr - 292275.
88 It would appear that Mr Norm Philipp became a member of the Union on 11 May 2000. On 19 November 2001 a payment was made by him in the amount of $479.10 covering ‘Dues’ of $442.07 and GST of $37.03. For this payment he received an ‘OK Card’ from the Construction, Forestry, Mining and Energy Union, Construction & General Division, NSW Branch for the period 1 October 2001 to 31 March 2002.
89 Mr Norm Philipp’s evidence, which I accept, is that on the day after he became a financial member of the Union in 2001, i.e. 20 November 2001, he presented a resignation letter to the Union delegate at the site at which he was then working – the Royal Prince Alfred Hospital site at Camperdown in Sydney. Conversation is said to have followed which demonstrated a reluctance on the part of the delegate to accept Mr Norm Philipp’s letter of resignation. Mr Norm Philipp then said words to the effect, ‘Mate, that’s my letter of resignation, you didn’t accept it, I’m not paying a cent more’.
90 Under s 172 of Schedule 1B to the Act, Mr Norm Philipp’s membership of the Union would have continued until at least 31 March 2004 unless his letter of resignation, delivered by him to the Union delegate at the Royal Prince Alfred Hospital site on 20 November 2001, was effective in bringing his membership of the Union to an end.
91 In light of subclauses 11(1) and 11(5) of the Constitution of the Union and s 174(1) and 174(5) of Schedule 1B to the Act and the principles enunciated in Capper v Thorpe [1998] HCA 24; (1998) 194 CLR 342 at [21], the question is whether Mr Norm Philipp’s letter of resignation, given by him to the Union delegate, was ‘received by’ the Union. Given the authority conferred on delegates by the Rules and the terms of the Union’s Code of Conduct for Union Delegates, it is clear that delegates were to provide an interface between workers on site and the organisation in relation to membership of the Union such that it was within the authority of a delegate to receive, on behalf of the Union, a letter of resignation from a member.
Under clause 11 of the Union’s Constitution and s 174 of Schedule 1B to the Act it was not necessary for Mr Norm Philipp to be ‘financial’ in order for him to lawfully resign his membership of the Union, although he appears to have been financial at the relevant time, in any event.
Accordingly, as the Union ‘received’ notice of Mr Norm Philipp’s resignation on 20 November 2001, that resignation took effect two weeks later i.e. on 4 December 2001.
92 Thus, Mr Norm Philipp was not a member of the Union in January/February 2004.
93 Whatever Mr Norm Philipp’s membership status may have been at the time, he did not, when undertaking site induction at the Fairy Meadow site on Monday 19 January 2004, with a view to undertaking plastering work for Pro Finish Interiors, suggest that he was a member of the Union, nor did he do so when re-inducted at the Fairy Meadow site on Wednesday 18 February 2004 with a view to carrying out plastering work for Innovation Interiors. However, Mr Philipp conceded that on 18 February he may have said to Mr Casper ‘You know that I’m in the Union’, in the belief that his name would still be recorded on the Union’s books.
94 At about 9.13 am on Wednesday 18 February 2004 Mr Casper proceeded to send a two page facsimile to Janet McIntosh at the CFMEU office. Mr Casper’s fax cover sheet read as follows:
‘PROFINISH GYPROCK EMPLOYEES
1) PLEASE CHECK THEIR UNION MEMBERSHIPS AND FINANCIAL STATUS
2) FILL IN THE BLANKS ON THE FORM
3) FAX 1 COPY TO ME, GIVE ONE TO MICK LANE.
thanks
[signed] Skip’
95 The second page of the facsimile was the copy of Lanksey’s form, purportedly listing the names of Pro Finish Interiors’ workers, which had been adapted by Mr Casper by the addition of asterisks as mentioned above at [65], to identify workers ‘ON LOAN TO’ Innovation Interiors.
96 Janet McIntosh proceeded to record details under the column headings ‘Union Number’ and ‘Financial’ on the edited Lanskey form against all the names, whether marked by an asterisk to record their perceived ‘ON LOAN’ status or not. On the form transmitted to Janet McIntosh there was no indication that Glenn Suter, Barry Sindel, Norman Philipp Jnr, Norm Philipp, Reinhard Philipp, Anthony Summers or Dimitrios Gontas were members of the Union. Janet McIntosh’s return facsimile to Mr Casper, with all the membership and financial status details recorded on the CFMEU office copy of page 2 of Mr Casper’s facsimile, was sent to him at 10.48 am on Wednesday 18 February 2004.
Presumably, Mr Casper made his inquiry of the CFMEU office because of the fact that none of Glenn Suter, Barry Sindel, Norman Philipp Jnr, Norm Philipp, Reinhard Philipp and Anthony Summers had indicated that they were members of the Union on the Lanskey Site Personell (sic) forms which they had completed. By way of contrast, Mr Gontas’s ‘New Employee Details’ form had been completed by him so as to indicate, when given a ‘Yes/No’ alternative, that he was not a member of the Union.
No doubt Mr Casper was keen to ascertain the membership status of those workers who were coming to the site to work for Innovation Interiors and about whose membership status he had no knowledge, even though when they, or some of them, had previously worked at the Fairy Meadow site for Pro Finish Interiors, a similar inquiry had not, apparently, been made. Apart from other considerations, Mr Casper had a proven track record of seeking to secure and securing new members for the Union and of having unfinancial members brought up to a financial status.
97 In this context it may be noted that this was not the first occasion when Mr Casper had submitted a list of workers’ names to the CFMEU office to ascertain their Union membership and financial status. He assiduously pursued the identity of workers who were not members of the Union.
At 10.26 am on 18 July 2003 Mr Casper had submitted a list of names to the CFMEU office under the heading ‘INNOVATIONS (sic) INTERIORS’ with five column headings reading ‘SURNAME’, ‘FIRST’, ‘D.O.B.’, ‘UNION #’ and ‘FINANCIAL’. The columns under the headings ‘UNION #’ and ‘FINANCIAL’ as submitted by Mr Casper to the CFMEU office were blank at the time. At the foot of the form which listed some 12 Innovation Interiors workers’ names there was a message from Mr Casper to Janet McIntosh’s predecessor, ‘Tanya’, reading:
‘This Company is starting on site next MONDAY. I would like to check these fellows Financial Status and have it ASAP.
thanks
[signed] Skip Casper’
Tanya responded by indicating that five people on the list were ‘Not Mbr’.
Where Union dues were outstanding, that was also noted. The facsimile response from the CFMEU office to Mr Casper’s facsimile of 18 July 2003 was transmitted to him at 11.35 am on 18 July 2003.
98 Another similar document headed ‘INNOVATION INTERIOR (sic) GYPROCK’ would appear to have been brought into existence by Mr Casper in about November 2003. That document had column headings reading ‘NAME’, ‘DOB’ and ‘Member #’. There appear to have been approximately 29 names recorded on that list. The copy of the list which is in evidence has been edited with notations, presumably added by staff at the CFMEU office or by Mr Casper with the assistance of the CFMEU office, where Union dues are said to have been owing. In other instances the letters ‘OK’ have been added against names or the word ‘Deal’ has been added against a name. Some seven or eight names appear to have been deleted, however it is unclear from the photocopy which is in evidence whether the marking indicates an intended deletion of a name from the list or, alternatively, the application of a coloured highlighter for some reason which, in the photocopy, has come out in black as if it were an intended deletion.
99 After Mr Casper received Janet McIntosh’s facsimile from the CFMEU office which was transmitted at 10.48 am on Wednesday 18 February 2004, he proceeded to add an asterisk to his copy of the facsimile so received against the name of Anthony Summers.
100 Upon receipt of Janet McIntosh’s facsimile it would have been apparent to Mr Casper that Anthony Summers was not, according to the Union, a member of the Union.
101 Even though Mr Norm Philipp was no longer a member of the Union for the reasons indicated above, Mr Casper might have reasonably believed him to still be a member as at 18 February 2004, albeit one who was significantly unfinancial. Janet McIntosh had indicated that he was then indebted to the Union in the sum of $735.
102 In the case of Reinhard Philipp, Mr Casper would have had reason to believe that he was a member of the Union as at 18 February 2004, but one who was very significantly indebted to the Union for unpaid dues. Janet McIntosh had recorded against Mr Reinhard Philipp’s name that he was indebted to the Union in the sum of $3,080.
103 In relation to Mr Summers, Janet McIntosh had noted an amount of $230 against the letters ‘N/M’, which I understand to have been an indication that Mr Summers was a non-member. Presumably the figure of $230 was added to indicate how much Mr Summers would have to pay to become a member of the Union.
104 In relation to Barry Sindel the details recorded by Janet McIntosh might have led Mr Casper to believe that he was still a member of the Union, as at 18 February 2004, albeit one who was significantly unfinancial with an indebtedness to the Union in the amount of $1,151.30. Against his name Janet McIntosh recorded the notation ‘DEAL CR’. When Mr Sindel originally worked for Innovation Interiors at the Fairy Meadow site in about November 2003 there was no apparent disclosure by him that he was a member of the Union. At that stage a Lanskey form was completed for the ‘Company:’ ‘Innovation Interiors’ which had the heading ‘Sub-contractor Employee’ printed on it. The list of names of Innovation Interiors’ workers recorded approximately 28 names with details under some nine column headings against the individual names. The last two column headings were ‘Union Number’ and ‘Financial’. Against Mr Sindel’s name no Union number was recorded although a figure of $368 appeared in the column headed ‘Financial’ and adjacent to that the letters ‘S.T.’.
105 When Mr Sindel returned to the Fairy Meadow site to undertake work for Pro Finish Interiors on 19 January 2004 he was re-inducted, but with his original induction number. No details were provided indicating that Mr Sindel was a Union member. However, on his ‘Site Personnel (sic) Register’ form Mr Casper had later added against the word ‘Name’ the notation ‘CFMEU’ and adjacent to that he recorded
‘Contact Brian Redfern
about Resignation
Details’
Mr Redfern was an organiser with the Union working in Sydney.
106 It is apparent that whilst Mr Sindel had been a member of the Union, he had become significantly unfinancial and had resigned his membership. It would appear that as at 18 February 2004 a deal had been done concerning his liability to the Union in respect of his outstanding dues. Thereafter, on 20 March 2004 Mr Sindel made a payment of $230 to the Union which resulted in Mr Casper issuing him with a receipt as a new member endorsed as follows:
‘Resigned/Returning as New
Extingwish (sic) all prior debts
Deal As per Brian Redfern/
Mick
Lane
OK to 1 Sept 04’
107 Whatever may have been Mr Casper’s understanding as to the Union membership status of Barry Sindel, Norm Philipp, Reinhard Philipp and Anthony Summers it is clear that before he received Janet McIntosh’s return facsimile transmitted at 10.48 am on Wednesday 18 February 2004, he was of the view that they were not members.
When he inducted Norm Philipp, Reinhard Philipp, Norman Philipp Jnr and Barry Sindel at the Fairy Meadow site on the morning of Monday 19 January 2004 he handed Union membership application forms to each of them. Acknowledging that he had a poor recollection of the induction meeting on the morning of 19 January 2004, Mr Casper nevertheless conceded that he handed out membership application forms to those persons whom he understood were not members of the Union and that he asked them to fill them out.
108 Mr Norm Philipp responded by saying ‘I’m not filling that out, mate, I don’t have to be in the Union’. Mr Reinhard Philipp said ‘I’m not interested in re-joining the Union, it’s against my religion. You don’t have to be in it.’
109 When Anthony Summers was inducted by Mr Casper at the Fairy Meadow site on the morning of Wednesday 21 January 2004 Mr Casper asked him whether he was a Union member. When Mr Summers replied ‘No’, Mr Casper said ‘Why not?’, to which Mr Summers replied ‘I used to be a member, but I’m too old for all that now’. Mr Summers had previously been a member of the Union on two separate occasions.
110 Notwithstanding Mr Casper’s then understanding that Norm Philipp, Reinhard Philipp, Barry Sindel and Anthony Summers were not members of the Union in mid January 2004, they were nevertheless, permitted to work at the Fairy Meadow site through to the end of January when Pro Finish Interiors’ work was essentially complete, and, in the case of Mr Anthony Summers, he was permitted to execute further work for Pro Finish Interiors on 5 and 6 February 2004 as well.
The productivity of independent contractors
111 At a meeting attended by Messrs McEwan and Bowman of Hansen Yuncken and Messrs Repas and Suter of Pro Finish Interiors at the Wollongong site on Tuesday 17 February 2004 discussion took place in relation to the issue of whether it was preferable for Gyprock Plasterers to be engaged who worked as independent contractors under ABNs rather than as employees. Mr Suter said at the meeting:
‘Roughly only 20 per cent of gyprockers in Wollongong are employees, the rest are all working on ABN.’
112 Mr McEwan made a file note in respect of the matters discussed at the meeting in which he recorded, amongst other things:
‘- Site Delegate Skip Jaspar (sic) issued Rates of Pay for CW [presumably contract workers] on ABN at Fairy Meadow job -> Precedence ?
- Approx. 20% of gyprockers are employed on wages in Wollongong (according to Glen)’
113 In relation to the merits of engaging subcontract workers on ABNs or employees working on wages Mr Boyd, Innovation Interiors’ site foreman expressed certain views. He was a plasterer employed by Innovation Interiors who was also a member of the Union. When the Pro Finish Interiors’ workers were undertaking gyprock plastering work in Block A of the Northgate Apartments Building on the Fairy Meadow site in January Mr Boyd had a conversation with Mr Suter in relation to the basis on which they were engaged, namely as independent contractors working under ABNs. However, even before his conversation with Mr Suter, Mr Boyd had formed the view that the Pro Finish Interiors’ workers were subcontractors working under ABNs. He formed this view because ‘ABN or subcontractors ... work a lot better and faster than a person on wages, the majority of them’.
Mr Casper’s pursuit of new Union members
114 After receiving Tanya’s facsimile from the CFMEU office which was transmitted at 11:35 am on 18 July 2003 Mr Casper was seized of the fact that Ranko Bojanic, Luka Bojanic, Predrag Djukic and Dusan Ponorac were non-members of the Union. By Friday 25 of July 2003 he had secured each of them as new members of the Union. On that date he issued receipts to each of them in respect of the payment of their respective Union dues of $218 each.
115 At some stage four other workers joined Innovation Interiors workforce who were not members of the Union namely Terry King, Nikola Mijakovac, Gary Kernan and Zarko Romic. By 22 September 2003 each of these Innovation Interiors’ workers had become members of the Union, receipts having been issued to them on that date for payment of their Union dues of $225 each.
116 On 22 September 2003 Mr Casper also issued a receipt to Stevo Pjevac who had been recorded on his list of Innovation Interiors’ workers as a non-member. Apparently Mr Pjevac had joined the Union on 29 May 2000 and resigned in 2001 owing money to the Union. With the approval of Mick Lane, Mr Pjevac paid $225 of his outstanding dues totalling $360, rendering him paid up and ‘OK’ to 1 April 2004 as a result of a ‘deal’. It would appear that Mr Pjevac’s payment of $225 was effected by an Innovation Interiors’ cheque.
117 Another Innovation Interiors’ worker whose name was recorded upon one of Mr Casper’s running lists for that company was Dean Webb. It would appear that on 20 November 2003 Mr Casper issued a receipt to Dean Webb for the payment of $225 covering his joining fee and six months dues as a new member of the Union. On the same day, Mr Casper issued a receipt to Mr Kane Rogers, another Innovation Interiors’ worker, for $225 to cover his joining fee and his dues for the first six months of his membership.
118 On 26 November 2003, Mr Casper received a payment of $190 from Joe McNamara, another Innovation Interiors’ worker, recording on his receipt ‘Deal as per Mick Lane. Credit Bal OK to 1/4/04’.
119 In relation to signing up new members, and in particular Mr Predrag Djukic, Mr Casper’s evidence was:
Q ‘That [referring to page 117 of Exhibit A1] would seem to suggest that you enrolled him into the union in the first week on which Innovation Interiors was working on the site?’
A ‘Approximately then, yes, by the date of the receipt.’
Q ‘Is the date of the receipt the date the person is signed into the union or may it be a day or two later after the person signs their application form?’
A ‘It may be a day or two later. I give them – they’re given a chance to join on their own if they would like so they don’t have to join immediately.’ (emphasis added)
Monday 19 January 2004
120 Mr Lane’s evidence is that in the early stages of work at the Fairy Meadow site and prior to the engagement of Mr Casper by Lanskey, he ‘arranged for a CFMEU whole site meeting involving speakers from superannuation providers (Members Equity and CBUS), to discuss a range of general safety issues and to encourage union membership amongst the workers on site.’ According to Mr Lane a resolution was passed from the floor of the meeting to the effect that ‘everyone on site get financial with the Union’.
121 Following his employment by Lanskey Mr Casper was informed that members of the Union working on site at an earlier point in time had resolved to the effect that the site was to be a ‘Union site’ and had directed that all CFMEU delegates advise new workers on the site of such resolution.
122 Mr Casper says that his understanding of the earlier resolution was that it constituted ‘simply a direction that in my role as CFMEU site delegate I should encourage all workers to join the CFMEU if they were not already members’.
123 On Friday 16 January 2004 Mr Suter, Pro Finish Interiors’ foreman, attended at the Fairy Meadow site from about 7:00 am until about 2:00 pm.
124 On Monday 19 January 2004 he returned to the site working there from about 7:00 am until about 3:00 pm on that day. He was accompanied by Norm Philipp, Norman Philipp Jnr, Reinhard Philipp and Barry Sindel. Each of them carried out plastering work for Pro Finish Interiors in the loft or penthouse level of Block A.
125 Mr Norm Philipp’s evidence is that he arrived at the Fairy Meadow site at about 6:00 am with a view to starting work at about 7:00 am. His affidavit evidence was that when he was in the site car park with his brother Reinhard Philipp, his son Norman Philipp Jnr and Barry Sindel he was approached by Mr Casper. In his affidavit he says that conversation took place to the following effect:
‘Casper: Are you boys starting today? I hope you’re in the union. If you haven’t got a ticket you won’t be starting. If you’re not a financial member, you won’t be starting. This is a union site.
Norm Philipp: What makes this a Union site?
Casper: We voted it a union site.
Norm Philipp: There’s no such thing, mate.
Casper: Well, you won’t be working here.’
126 The late Mr Reinhard Philipp’s statement of 19 May 2004 recorded that on 19 January 2004 Mr Casper had handed out Union membership application forms to himself and those who were starting at the Fairy Meadows site on that day for them to complete. According to him conversation took place as follows:
Casper: ‘Oh, you blokes aren’t in the union. Would you think about rejoining it?’
Reinhard Philipp: ‘No. I’m not interested in rejoining the union, it’s against my religion. You don’t have to be in it.’
Casper: ‘Fair enough. This site has been voted as the [sic] union site by the members.’
Reinhard Philipp: ‘Well I didn’t vote for it.’
127 In his affidavit Mr Casper deposed to an inability to recall meeting Norm Philipp, Norman Philipp Jnr, Reinhard Philipp and Barry Sindel prior to their induction. Furthermore he denies saying words attributed to him by Mr Norm Philipp to the effect:
‘I hope you’re in the Union. If you haven’t got a ticket you won’t be starting. If you’re not a financial member you won’t be starting.’
and
‘Well, you won’t be working here.’
128 Notwithstanding the differences between Mr Norm Philipp’s account of his conversation with Mr Casper on the morning of 19 January 2004 and that of Mr Reinhard Philipp, Mr Casper accepts that at a meeting with Norm Philipp, Norman Philipp Jnr, Reinhard Philipp and Barry Sindel on the morning of 19 January 2004 he said to them ‘This is a union site’. He accepts that he was asked ‘What makes this a union site?’ He accepts that he said words to the effect of ‘The site voted it a union site.’ Furthermore he accepts that Norm Philipp said ‘There’s no such thing mate’ but says that those words were spoken immediately after the question was asked ‘What makes this a Union site?’
129 In his affidavit Mr Casper swore:
‘At no time, at the end of an induction meeting or otherwise, did I ever tell a worker that he had to be a member of the union or threaten any consequences if the worker declined to join the CFMEU.’
Mr Casper conceded that his recollection of the
relevant induction meeting was poor.
130 I was impressed by the evidence of Mr Norm Philipp. He appeared to me to be forthright and honest. His evidence had a ring of verisimilitude.
131 Mr Casper was both respectful and well-spoken. He seemed to me to be quite articulate. However, his written word suggested that he was not particularly literate.
I find it difficult to accept that Mr Casper was prone to excessive swearing. Unlike Mr Lane, whose evidence smacked of artful reconstruction and lacked credibility, I was generally impressed by Mr Casper’s evidence.
132 There can be no doubt that Mr Casper was significantly successful in enlisting new members for the Union amongst the plasterers who worked for Innovation Interiors and in procuring the restoration to a financial status of those workers who, on arrival at the Fairy Meadow site, were unfinancial members of the Union. He said that he worked hard to enrol all of the workers, who were eligible to join the CFMEU, into the Union as members.
133 The critical question is whether what Mr Casper said with a view to encouraging non-members to become members and unfinancial members to become financial went beyond encouragement and should be construed as words of insistence directed at ensuring that all persons working on the site were financial members of the Union.
134 Counsel for the respondents drew attention to inconsistencies between a
statement made by Mr Norm Philipp on 19 May 2004 in respect
of the events of 19
January in that year and the terms of his affidavit sworn 2 February 2006.
Mr Norm Philipp readily acknowledged that he may have been in error in
suggesting that Mr Summers was present at the time of the relevant
conversation
with Mr Casper. In cross examination Mr Norm Philipp said ‘I can’t
remember a hundred percent whether he
was there or not. As far as I can
remember I think he could have been.... He might not have been there.’ It
should be noted
that in his affidavit Mr Norm Philipp did not categorically
state that Mr Summers was present. Rather he said ‘to the best
of my
recollection’ he was present.
135 I am satisfied that Mr Summers was not present but this does not relevantly detract from Mr Norm Philipp’s credit in the circumstances.
136 In cross-examination it was suggested to Mr Norm Philipp that he had not, in his statement of 19 May 2004, attributed to Mr Casper the words ‘Are you boys starting today? I hope you’re in the union’. Mr Norm Philipp readily accepted that those words, which were included in his account of the relevant conversation in his affidavit, had not been included in his earlier statement. When the difference between the two accounts was drawn to his attention, his response was ‘I can’t see them here [referring to the additional words] but like I said before, I added things as I remembered them. You know, like I didn’t invent the thing.’
137 Mr Norm Philipp denied that by including the words he had ‘just made them up’. In cross-examination he was emphatic in saying that Mr Casper had said:
‘All workers will be members of the CFMEU, financial members.’
138 As I have said earlier, Mr Norm Philipp’s evidence had a ring of verisimilitude.
139 Mr Casper gave evidence that Mr Rowland told him that the Fairy Meadow site was to be a Union site. He also says that Mr Lane told him that as well. No mention was made by Mr Casper in his affidavit that Mr Rowland had said any such thing to him, nor did Mr Rowland suggest that to be the case. I do not accept that Mr Rowland told Mr Casper that the Fairy Meadow site was, or was to be, a ‘Union site’.
140 Mr Casper readily acknowledged that on the morning of 19 January 2004, at what he says was the induction meeting, he said to Mr Norm Philipp and those who were with him ‘This is a Union site.’ He denied that by using those words he intended to convey that the site was one where you had to be a member of the Union in order to work there. Mr Casper’s evidence included:
Q: ‘You understood, prior to coming on [t]o the site that workers had had a meeting where it had been resolved that the site be a union site, isn’t that right?’
A: ‘Yes’
Q: ‘And you were told by Mr Lane that it was voted as a union site, weren’t you?’
A: ‘Yes’
Q: ‘And you understood that having being told by Mr Lane that it was voted a union site you were being told something extra about your job as site delegate, isn’t that right?’
A: ‘That’s right’
Q: ‘You were being told that there was an extra feature about the Lanskey site to the normal role of site delegate to encourage people to join the union and that was that the workers required them to be in the union?’
A: ‘No.’
Later Mr Casper gave the following additional evidence:
Q: ‘Has there been a time where you’ve understood the phrase "this is union site" to be used in the sense that a worker working on the site is required to be in the union?’
A: ‘Back in the old days when they had no ticket no start.’
...
Q: ‘No ticket no start means if you don’t have a union membership ticket you can’t work on the site?’
A: ‘Correct’
Q: ‘The phrase "this is a union site" is another way of saying no ticket no start, isn’t it?’
A: ‘No’
141 Whatever may have been Mr Casper’s purpose in describing the Fairy Meadow site in his discussions concerning Union membership as a ‘Union site’, I am satisfied that the meaning which those words conveyed in the context in which they were used was exactly as Mr Casper said it had been ‘in the old days’ namely, if you don’t have a union membership ticket you can’t work on the site.
By signing the ‘CFMEU Code of Conduct for Union Delegates’ form, Mr Casper undertook to ‘ensure’ that all workers at the Fairy Meadow site be financial members of the CFMEU, not simply to ‘encourage’ them to be such members.
142 I am satisfied that words to the effect of those deposed to by Mr Norm Philipp in his affidavit were spoken by Mr Casper to Mr Norm Philipp, Norman Philipp Jnr, Reinhard Philipp and Barry Sindel on the morning of Monday 19 January 2004. However, as Mr Casper said, it was his practice to allow a few days’ grace for non-members to join of their own accord before they had to do so.
In addressing questions of reasonable satisfaction in these proceedings I have been conscious of Dixon J’s observation in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at 362 that reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The fact that pecuniary penalties may be exacted is a material matter to be borne in mind. At the same time, I am conscious of the Full Court’s caution in Rejfek v McElroy [1965] HCA 46; (1965) 112 CLR 517 at 521 that no matter how grave the fact which is to be found in a civil case, the mind has only to be reasonably satisfied and has not with respect to any matter in issue in such a proceeding to attain that degree of certainty which is indispensable to the support of a conviction upon a criminal charge.
I have also been mindful of the unexplained absence from the witness box of Barry Sindel and Norman Philipp Jnr, with the consequence that possible inferences favourable to the respondents, for which there was ground in the evidence might, perhaps, be more confidently drawn (see Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 at 308). However, it must be borne in mind that whether the Jones v Dunkel principle can or should be applied depends upon whether certain conditions for its operation exist including that the missing witness would be expected to be called by, relevantly, the applicant rather than the respondents. This condition will be satisfied where it would be ‘natural for one party to produce the witness’ or the ‘witness would be expected to be available to one party rather than the other’, or where ‘the circumstances excuse one party from calling the witness, but require the other party to call him’, or, ‘where he might be regarded as in the camp of one party, so as to make it unrealistic for the other party to call him’, or ‘where the witness’ knowledge may be regarded as the knowledge of one party rather than the other’, or ‘where his absence should be regarded as adverse to the case of one party rather than the other’.
It has been observed that the higher the missing witness stands in the confidence of one party, the more reason there will be for thinking that his knowledge is available to that party rather than to his adversary (see per Glass JA in Payne v Parker [1976] 1 NSWLR 191 at 201-2).
In the present circumstances no inferences relevantly flow from the failure by the applicant rather than the respondents to call Barry Sindel and/or Norman Philipp Jnr as witnesses. Given Mr Casper’s own acknowledgement that he described the Fairy Meadow site as a ‘Union site’, further corroboration of Norm Philipp’s evidence concerning the relevant conversation on the morning of 19 January 2004 was unnecessary. No inferences favourable to the respondents, for which there may have been ground in the evidence, could be more confidently drawn by virtue of the absence from the witness box of Barry Sindel and Norman Philipp Jnr. Apart from other considerations they could well have been called by the respondents. They were not in the applicant’s ‘camp’.
Tension at the Fairy Meadow site in early February 2004
143 There appears to have been some tension between Ousley Pty Limited as the proprietor of the Fairy Meadow site and Lanskey in early February 2004. Andrew Green’s site diary for 2 February 2004 records:
‘Problem is no-one tells Lanskey (confused as to who is to direct contractors on site). Was not aware contractors took direction directly from Ousley.’
144 Another diary entry of Ian Herd of the same date contains:
‘Total frustration at lack of information coming from Ousley and subbies being given direct instructions for alterations etc, without Lanskey knowledge’.
145 A Lanskey diary note for 5 February 2004 included the following:
‘Today Ousley interfering again with subbies: instructing them to do things not to worry about what Lanskey say.’
146 Another diary note of Mr Herd of the same date records:
‘Constant interference by Les Dowse, contractors taking directions from him.’
147 A diary note of Mr Green of 6 February 2004 refers to:
‘Yet another case of client interference.’
148 A later Lanskey diary note of 11 February 2004 included:
‘I was later told by Les Dowse (Ousley) after he had spoken to Steve Simpson that Blocks A & B had been handed to Ousley on 2.2.04 as per Dave Rollands (sic) letter and that A & B were an Ousley site and to keep Skip out of A & B. I instructed Skip not to go into Blocks A & B as they are now an Ousley site.’
149 Much of this tension between Lanskey and Ousley Pty Limited appears to have led to friction between the Union and all other parties.
150 Mr Casper says that approximately two to three weeks after 19 January 2004, ‘on or about 5 February 2004’ he spoke to a worker whom he was inducting at the Fairy Meadow site to carry out work for Pro Finish Interiors. In the course of the conversation Mr Casper says that, in the context of him seeking some details concerning the worker’s ‘employment with Pro Finish’ the worker said words to the effect:
‘I don’t have to have those details. I’m a sub-contractor and we’re all sub-contractors to Pro Finish – Spiro Repas’s company.’
151 Mr Casper’s oral evidence was that he selected the date 5 February 2004 for inclusion in his affidavit by reference to a facsimile which he transmitted to Mr Lane at 3:30 pm on 12 February 2004. That facsimile contained a message in the following terms:
‘RE: Pro Finish
Workmans’ Comp Cert
Public Liability Cert
Has told Contracts Administrator
He is just beginning CBUS
Will pay next month.
5 Feb 04 investigation by me
CBUS Regist 88532-No Payments
ACIRT No Regist
UPLUS No Regist
Long Service Last Entry 29/11/02
Thanks
[signed] Skip’
152 I find it quite implausible that Mr Casper only learnt that men, who had worked on the Fairy Meadow site for Pro Finish Interiors in the period 19 January – 30 January 2004, were all subcontractors to Pro Finish Interiors, in the circumstances which he described.
153 Whilst Mr Summers returned to work at the Fairy Meadow site for Pro Finish Interiors on 5 and 6 February 2004, he had been inducted by Mr Casper on 21 January 2004. The suggestion that a worker, who was arriving at the Fairy Meadow site to commence work for the first time on 5 February 2004 and who was then being inducted, told Mr Casper that he was a subcontractor and that he was one of a number of subcontractors who worked for Pro Finish Interiors does not bear analysis.
154 What did occur on 5 February 2004 was the submission by Pro Finish Interiors of its quotation to Hansen Yuncken for Plasterboard Fit-out works to be carried out at the Wollongong site, as mentioned above at [12].
155 A diary note of Lanskey’s foreman, Mr Green of 10 February 2004 records:
‘CFMEU site meeting. Problems with a couple of contractors. Skip Casper causing problems.’
156 On the following day, namely 11 February 2004 Mr Casper sent a memorandum to Mr Rowland, the Union and WorkCover in relation to the Fairy Meadow site. The memorandum bore the heading "Involvement in Activities and Subcontractors in Buildings A & B on this site 9 Wood Hill St Fairy Meadow NSW." The memorandum, signed by Mr Casper read:
‘I have been instructed by Steve Simpson Lanskey Construction manager, via Chris Taylor, Lanskey general foreman both verbally, to cease and desist in my involvement, in all manner, with these 2 buildings. I verbally reported this to John Millar, Lanskey Contracts Administrator. I also stated to both of them I felt Lanskey may be open to some liability, due to some of the incorrect credentials (insurances) of some of the sub contractors. This was due to an examination of some of them earlier this date resulting in one group leaving site due to their credential condition.’
157 A Lanskey site diary entry of 11 February 2004 refers to differences of opinion between Lanskey and the Union. It includes the following:
‘A & H Plasters – C Block Level 1 Stud Walls
Track & Stud
...
* Today few issues with A & H Plaster about Super
Skip rang union spoke to C.T. [Chris Taylor, a Lanskey general foreman] & I was told to get rid of them off site or they would be down to shut the site (Peter Primer (sic)). C.T. went to sort out with Skip. All OK for now. ...
...
Continuing issues with subbies starting on site. Tilers for Pool A works thru Hydrocare Pool Services.
Tilers have no paperwork. C.T. rang Robert Savell to chase up. I also told him that they cannot start on site until this is produced to Lanskey Constructions.
I returned to where they were going to be inducted and they had gone. I presumed that Skip had told them to leave site. These events in tilers not starting (sic). I was asked by Les Dowes (Ousley) who told them to leave site. I said I presumed it was Skip as I was with John Millar discussing A&H Plasterings Super funds and application to C BUS.
....’
Plastering work at the Wollongong site
158 Whilst Mr Casper deposed to learning during his ‘checks on Pro finish’ that Pro Finish Interiors was being considered as a subcontractor to Hansen Yuncken at the Wollongong site, to transmitting a facsimile, a copy of which is not available, to his counterpart at the Wollongong site, Mr Clinton, conveying some information about what had happened at the Lanskey site and extending a warning in relation to a potential liability of Hansen Yuncken under s 127 of the Industrial Relations Act 1996 (NSW), I have serious reservations about giving any weight to this somewhat imprecise evidence. The absence of the facsimile from the evidence has not been satisfactorily explained.
Furthermore, the Union’s knowledge that Hansen Yuncken was contemplating retaining Pro Finish Interiors as its plastering contractor at the Wollongong site seems to me to have been derived from a conversation between Mr Lane and the Union’s delegate, Mr Clinton on or shortly prior to 12 February 2004.
On 12 February 2004 Mr Lane paid a visit to the Wollongong site and spoke with Mr McEwan. Mr McEwan made a diary note of his conversation with Mr Lane immediately after he left the building. The diary note headed ‘CFMEU visit – Mick Lane’ read as follows:
‘1. Mick Lane spoke with Graham [Clinton] who advised that we were talking to "Spiro".
2. Mick Lane met with me and advised that he was not only "non-union" but "anti-union".
3. I advised he was 1 of 3 contractors we were talking to and will advise upon engagement. After which M.L. could contact them.
4. M.L. advised "you have been warned" and walked out as he had other commitments.’
159 Given that Mr Lane left his meeting with Mr McEwan to attend to ‘other commitments’ the probability is that his meeting with Mr McEwan preceded the transmission by Mr Casper to Mr Lane of Mr Casper’s facsimile of 12 February 2004 referred to at [151], which was transmitted at 3:30 pm on that day.
160 When asked to give his recollection as to the conversation which took place with Mr Lane on 12 February, Mr McEwan gave the following evidence:
‘He walked into my office and he said, I understand that you’re looking to use Pro Finish on this project, not only is he non-union but he’s anti-union. I told him that at that time I hadn’t – certainly hadn’t engaged a gyprocker. I told him that he was one of three contractors that I was looking at, at which point he told me that - he said and I quote, "You have been warned".’
161 In his affidavit sworn 3 August 2006 Mr Lane deposed to first discussing the possibility of Pro Finish Interiors coming onto the Wollongong site on the afternoon of 16 February 2004 when he visited the Wollongong site and spoke to Mr McEwan. In addition, he denied saying to Mr McEwan that ‘Pro Finish was anti-union’.
162 I have earlier described Mr Lane’s evidence as smacking of artful reconstruction. Not only does it smack of artful reconstruction, in many respects it verges on deceitful reconstruction. This can be illustrated by reference to the following evidence given by Mr Lane in cross-examination:
Q: ‘How do you come to nominate the date as 16 February 2004 as being the date upon which what you say is the first discussion took place?’
A: ‘Only through the evidence that I was shown in respect to other people’s affidavits.’
Q: ‘What evidence was that?’
A: ‘Their affidavits, their statements.’
Q: ‘What particular evidence did you rely upon in order to fix the date as 16 February 2004?’
A: ‘I don’t know whose affidavit it was in respect to that. Probably Mr McEwan’s.’
163 Later, Mr Lane conceded that he had made a gross error in nominating 16 February 2004 as the date when he first discussed the possibility of Pro Finish Interiors coming onto the Wollongong site with Mr McEwan given that Mr McEwan’s diary note of 12 February 2004 clearly established that Mr Lane had a discussion with him about Mr Spiro Repas’ company Pro Finish Interiors coming onto the Wollongong site on that date. My impression is that Mr Lane’s own recollection in 2006 of the relevant events in February 2004, such as it may have been, was blurred, distant and imprecise. I would be reluctant to place any reliance upon it.
164 I have no doubt that Mr Clinton informed Mr Lane that his employer, Hansen Yuncken, was talking to Mr Repas of Pro Finish Interiors as a possible plastering contractor for the City Beach Apartments building on the Wollongong site. Furthermore, I have no doubt that on 12 February 2004 Mr Lane met with Mr McEwan and warned Mr McEwan about employing Pro Finish Interiors as Mr Repas was, in Mr Lane’s estimation, not only ‘non-union’ but also ‘anti-union’.
165 On 17 February 2004 Mr Lane informed Mr Suter in a meeting at the CFMEU office that he had problems with Pro Finish Interiors. He said:
‘I’ve got ’em all over me fuckin’ desk here. I can go through papers and find complaints about fuckin’ Profinish all over my fuckin’ desk here’.
166 Mr Suter’s account of this meeting is punctuated with foul language. In relation to the use of expletives Mr Lane gave the following evidence in response to questions which I asked of him:
Q: ‘Just talking about matters of vernacular, do you mind if I ask you, do you tend to use expletives as part of your normal day-to-day speech with people in any circumstances?’
A: ‘Yes, sometimes I do, your Honour.’
Q: ‘And do you do that depending on who you are talking to? I noticed you haven’t used any in my court room ...?’
A: ‘I learned a long time ago, amongst other things perhaps, that I talk to people the way they talk to me and I will add I took some offence in respect of reading some of these statements and the language that was attributed to me.’
Q: ‘But you don’t deny using expletives as common parlance when you are talking with some types of people?’
A: ‘On a construction site, yes, it’s often – bad language is often used.’
167 I would not suggest that Mr Suter has deliberately coloured his account of his conversation with Mr Lane at the CFMEU office on 17 February 2004 by attributing to Mr Lane a greater number of expletives than may have in fact been used by him at that time. However, I would be surprised if Mr Lane used expletives quite as frequently as Mr Suter says that he did. Nevertheless I am satisfied that Mr Suter has not, in his record of interview of 11 March 2004 to which reference is made hereunder, attempted to embellish his account of words spoken by Mr Lane at the time. Having said that, he may have unwittingly thrown in a few more expletives than were in fact used.
168 Following the submission of its quotation for the plasterboard fit-out works at the City Beach Apartments building on the Wollongong site Mr Spiro Repas of Pro Finish Interiors met with Mr McEwan of Hansen Yuncken on 9 February 2004 at the pre-award/induction meeting referred to above at [13].
169 Then on Wednesday 11 February 2004 Mr Suter attended the Wollongong site and had a meeting with Mr Bowman, Hansen Yuncken’s site manager. Mr Bowman informed Mr Suter that before Pro Finish Interiors could start on site it would be necessary for Pro Finish Interiors to provide a work method statement and also certain insurance details.
170 Mr Suter and Mr Bowman proceeded to walk the site. Discussion took place as to where Pro Finish Interiors was going to build its site shed. Mr Suter said ‘I’ll get that organised and I’ll get the materials delivered to site ... and we’ll be ready to kick off, hopefully, by Friday morning’ to which Mr Bowman replied ‘Great’.
171 Mr Suter proceeded to return to the Pro Finish Interiors’ office where he spent some time working on the plans and ordering materials.
172 Mr Repas provided Mr Suter with an envelope containing material to be delivered to Mr Bowman, which he proceeded to deliver at about 8:00 am on Thursday 12 February 2004. Mr Bowman proceeded to open the envelope and inspect the documents. Discussion took place in respect of certain matters that needed to be rectified – one such matter was workers’ compensation, where there was insufficient cover for the anticipated number of men who would be working on the site. In addition, Mr Bowman indicated that the work method statement was not up to scratch. He indicated that he wasn’t happy with it and that Pro Finish Interiors would need to improve on it.
173 Mr Suter returned to Pro Finish Interiors’ office and reported to Mr Repas on the problems which Mr Bowman had identified.
174 Notwithstanding Pro Finish Interiors’ failure to submit a satisfactory work method statement, Mr Suter and a number of Pro Finish Interiors’ workers arrived at the Wollongong site on the morning of Friday, 13 February 2004. Mr Clinton proceeded to induct Mr Suter along with Norm Philipp, Norman Philipp Jnr, Reinhard Philipp, Barry Sindel and Anthony Summers.
175 Before the Pro Finish Interiors’ workers commenced work they were approached by Mr Bowman who requested that they provide a safe work method statement. Mr Norm Philipp said to Mr Bowman ‘Isn’t Spiro supposed to give you that?’ to which Mr Bowman replied ‘He has given us one, but it wasn’t satisfactory’.
176 Mr Bowman proceeded to prepare a manuscript safe work method statement for the Pro Finish Interiors’ workers on a piece of paper which he proceeded to sign along with Messrs Suter, Norm Philipp, Norman Philipp Jnr, Sindel, Summers and Reinhard Philipp. The manuscript safe work method statement commenced with the heading ‘PRO FINISH 13/2/04 City Beach Pavillions Cnr Bank & Harbor’. The next heading read: ‘SWMS for Load up gear to Level 1 & build compound’. After preparing the manuscript safe work method statement Mr Bowman said words to the effect ‘That should do you if Workcover come out’. After the document was signed by all the parties present he said words to the effect ‘That should be enough for today anyway, because I’m still waiting on some paperwork from Pro Finish’.
177 At about 10:00 am Mr Suter asked Mr Summers to leave the Wollongong site and proceed to Pro Finish Interiors’ factory at Coniston to work there for the rest of the day.
178 The remaining men then proceeded to build a site shed for Pro Finish Interiors at the Wollongong site and commenced work on the steel stud framework in the upstairs apartments. Earlier they had attended to the unloading of a couple of trucks, one from Pro Finish Interiors and the other from Pro Finish Interiors’ steel supplier which carried the steel studding track.
179 Shortly before 3:00 pm on Friday 13 February the Pro Finish Interiors’ workers packed up their tools and left the Wollongong site for the day.
180 On Monday 16 February 2004 Mr Suter returned to the Wollongong site together with the Pro Finish workers who had been inducted on Friday 13 February 2004 namely Norm Philipp, Norman Philipp Jnr, Reinhard Philipp, Barry Sindel and Anthony Summers. In addition, four other Pro Finish Interiors’ workers were inducted that morning namely Albert Lilley, Geoff Harnett, Bryan Harnett and Tony Morgan who joined the other Pro Finish Interiors’ workers on the first floor of the City Beach Apartments building. According to Mr Suter ‘everybody was into the rhythm’ at the Wollongong site on Monday 16 February 2004. It was a case of ‘tools out, working away happily’. The work advanced half-way through the first floor at which stage the Pro Finish Interiors’ workers were ‘cleaning up the stud work’. During the day, there were no incidents.
181 However, as at 16 February 2004 Pro Finish Interiors did not have a contract to undertake the plastering work at the Wollongong site. By 24 February 2004 Pro Finish Interiors was no longer under consideration to do that work. As it transpires Hansen Yuncken ended up letting a contract to Illawarra United Plastering.
182 Mr McEwan, who was an impressive and credible witness, was of the view that the work undertaken by Pro Finish Interiors at the Wollongong site on Friday 13 February and Monday 16 February 2004 had been undertaken ‘at their own risk’. As at 16 February 2004 McEwan may well have been unaware of the fact that, not only had the Pro Finish Interiors’ workers built their site compound, but they had also proceeded to undertake plastering work on the first floor of the building.
183 As Mr McEwan was driving home on the night of Monday 16 February 2004 he telephoned Mr Bowman and asked him whether there had been any Pro Finish Interiors’ workers on site on that day. Mr Bowman informed him that there had been, whereupon he inquired as to whether Mr Bowman was happy with their safe work method statement. Mr Bowman informed him that he was not so satisfied at which point Mr McEwan contacted his construction manager and told him what had transpired that day. He was then directed to contact Mr Repas and tell him ‘not to turn up to work the following day’, which he proceeded to do.
184 It is true that Mr McEwan had negotiated a ‘handshake deal’ with Mr Repas of Pro Finish Interiors on 9 February 2004 but that deal was subject to Pro Finish Interiors meeting a number of requirements.
185 As at 16 February 2004 Pro Finish Interiors did not have an approved safety plan, nor did it have an approved safe work method statement. In addition, Mr McEwan was concerned about Pro Finish Interiors’ certificate of currency in respect of its workers’ compensation insurance.
186 When asked whether by performing plastering work on 16 February 2004 Pro Finish Interiors would have been in breach of the Occupational Health and Safety Regulations in New South Wales Mr McEwan responded ‘That’s why I put a stop to it’.
187 Apart from having a concern about the failure of Pro Finish Interiors to supply the necessary documentation, Mr McEwan had concerns as to the ability of Pro Finish Interiors to complete the contract work. This concern arose after he made searches of some Pro Finish companies. The concern which he had in that regard grew by Tuesday 17 February 2004.
188 Mr McEwan’s evidence, which I accept, is that he ultimately did not engage Pro Finish Interiors to carry out the plastering work for reasons of his own unrelated to Mr Lane’s warning of 12 February 2004.
189 Mr McEwan was concerned lest it appear that his non-engagement of Pro Finish Interiors was seen to be because he was, in effect, bowing to Mr Lane’s wishes. I am satisfied that Mr McEwan did not bow to Mr Lane’s wishes, but that does not mean that Mr Lane’s wishes as communicated to Mr McEwan are irrelevant in the context of this case.
190 At 4:00 pm on Monday 16 February 2004 Mr Lane again visited the Wollongong site and met with Mr McEwan. Mr McEwan made a contemporaneous file note immediately after the meeting concluded. It speaks for itself:
‘1. Met with Mick Lane
2. Discussed the engagement of Profinish.
- Brian Redfern has issues with Spiro.
3. I confirmed that all Profinish employees and subcontractors will be covered in respect of C + Bus, ACirt & [?] CHS
4. I asked if Mick had a problem with Profinish if the above conditions met. He confirmed there was an issue as none of Spiro’s employees or subcontractors are Union members.
5. I advised that "at the end of the day Union membership is a personal choice".
6. Rang Spiro to arrange a 2.00 pm meeting.
7. Suggested Mick Lane ring Spiro
8. Mick Lane advised he would be in contact with Spiro to arrange a meeting. I advised M.L. contact details.
9. M.L. advised he would be requesting a "time & wages inspection".’
191 When it was suggested to Mr McEwan in cross-examination that Mr Lane didn’t say that none of the Pro Finish Interiors’ employees were Union members Mr McEwan responded ‘That’s exactly what he told me’.
192 When Mr McEwan was asked whether Mr Lane said on the afternoon of 16 February 2004 that he did not want Pro Finish Interiors on the project Mr McEwan’s response was:
‘No, he was careful in his wording. He never actually said that.’
193 Mr McEwan also gave evidence of a phone call which he received from Mr Lane on his mobile phone on the morning of Monday 16 February 2004. Mr McEwan said that Mr Lane had contacted him to let him know that Mr Lane had just finished a conversation with Mr Repas and that Mr Repas wasn’t interested in having a meeting with Mr Lane as none of his workers wanted to become members of the Union. Mr Lane went on to tell Mr McEwan that Mr Repas was going to be rolling up annual leave entitlements of his workers into a fixed salary rate and that he was going to be deducting superannuation and redundancy entitlements from those agreed rates of pay. Mr Lane concluded that ‘the guy [Mr Repas] was 100% shonky’. Mr Lane told Mr McEwan that if he [Mr Lane] allowed Pro Finish Interiors onto the project ‘then he should resign and he would bring every organiser down from Sydney if he had to’.
194 When cross-examined by counsel for the respondents who suggested that Mr Lane did not say ‘if Pro Finish were allowed to continue on the site, I would or should resign’ and that he did not make any reference to bringing organisers down from Sydney, Mr McEwan emphatically confirmed that Mr Lane had said both of those things.
195 At about 7:40 pm on 16 February 2004 Mr Repas telephoned Mr Suter on his mobile. At that time Mr Suter was at his home at north Nowra, some considerable distance to the south of the Wollongong site. He was then enjoying his dinner and a few red wines. To use his expression the ‘care factor’ was ‘down around zero’. Mr Repas said to Mr Suter words to the effect: ‘There’s no work tomorrow. There’s a few problems on the site’. One such problem which Mr Repas identified was the fact that Pro Finish Interiors’ work method statement was not ready.
196 After completing his discussion with Mr Repas, Mr Suter rang a couple of the ‘blokes’ arranging for them to go to the Belmorgan job at Penrith on Tuesday 17 February 2004. He contacted others and arranged for them to go to Pro Finish Interiors’ office where there was a bit of setting work to do. One of the men reminded Mr Suter that he was unable to work on 17 February 2004 as he had an appointment to see a medical practitioner.
197 None of the Pro Finish Interiors’ workers returned to the Wollongong site on Tuesday 17 February 2004. Insofar as the late Mr Reinhard Philipp’s statement and Mr Norm Philipp’s affidavit may have suggested that their last day at the Wollongong site was 17 February 2004 rather than 16 February 2004 I believe that they are confused about the relevant date. I am satisfied that they did not return to work at the Wollongong site after 16 February 2004.
198 On the morning of 17 February 2004, Mr Suter stayed at home and attended to some personal paper work.
199 Shortly after midday on that day Mr Graham Boyd, Innovation Interiors’ leading hand, rang Mr Suter looking for men to assist Innovation Interiors in carrying out the plastering work for which it had the contract in Block D at the Fairy Meadow site. Mr Suter was able to inform Mr Boyd that he would be able to arrange for up to nine men, who customarily worked for Pro Finish Interiors, to start work for Innovation Interiors the following morning.
200 Mr Suter proceeded to make contact either directly or indirectly with Norm Philipp, Reinhard Philipp, Anthony Summers, Barry Sindel, Tony Morgan, Geoff Harnett and Albert Lilley all of whom proceeded to attend the Fairy Meadow site early in the day on Wednesday 18 February 2004 to carry out plastering work for Innovation Interiors.
The Lane/Suter meeting on Tuesday 17 February 2004
201 At ‘about smoko, about 9 o’clockish’ on Tuesday 17 February 2004 Mr Lane turned up once again at the Wollongong site and had another meeting with Mr McEwan. Mr McEwan says that Mr Lane walked into his office and dropped a couple of bits of paper on his desk saying ‘Here are some other plasterers for you to talk to’. One piece of paper recorded the phone number for Shellharbour Interiors and the other for Illawarra United Plasterers. Mr McEwan made a contemporaneous file note of his meeting with Mr Lane which recorded the following under the heading ‘PROFINISH’:
‘1. Mick Lane on site 9.00 am.
2. M.L. gave me Shellharbour Interiors number + Illawarra United Plasterer’s.
3. I advised that I would be happy to issue a BOQ [Bill of Quantities] for pricing but if their price was not competitive then we will be continuing with Profinish provided he supplied all the relevant paperwork.’
202 Shortly thereafter Mr McEwan had a telephone conversation with Mr Suter in which he indicated the need for an urgent meeting that afternoon with Messrs Suter and Repas. Mr McEwan indicated that one of the matters to be discussed was the work method statement. A tentative arrangement for a 2:00 pm meeting on Tuesday 17 February with Mr Repas would appear to have previously been put in place on the afternoon of 16 February 2004.
203 Mr Suter proceeded to speak with Mr Lance Bowman at the Wollongong site. Mr Bowman indicated that Pro Finish Interiors had to get its work method statement in order and also had to get its workers’ compensation fixed up.
204 After speaking with Mr Bowman Mr Suter telephoned Mr Repas shortly
before midday. Mr Repas suggested that Mr Suter should come
up to Pro Finish
Interiors’ office for a meeting. Mr Suter proceeded to meet with Mr Repas
at Pro Finish Interiors’
factory located at Fox Ave, Coniston at about
1:00 pm – 1:15 pm.
Mr Suter said to Mr Repas words to the effect:
‘If you want to make it easier for yourself, if you want to be up there with the big guns, if you don’t want union trouble, okay, do an EBA [Enterprise Bargaining Agreement]. We can get along with the union and they’ll back off and leave us alone. And while we’re doing the right thing they can’t touch us And ... the EBA, some guys want it, some guys don’t. If you’re going to go up and start taking on all these big jobs ... look at an EBA. You don’t sign it, but look at it.’
205 Thereupon, Messrs Repas and Suter proceeded to the Wollongong site to meet with Mr McEwan and Mr Bowman in Mr McEwan’s office. This meeting took place at about 2:00 pm.
206 Mr McEwan informed the meeting that Mr Lane had been to the Wollongong site and had spoken to the Union delegate, Graham Clinton. Mr McEwan advised that Mr Clinton had been up to the CFMEU office and had spoken to a girl in the office who had investigated all of the Pro Finish Interiors’ workers to see whether they were Union members and whether or not they were financial.
Mr McEwan proceeded to say words to the effect:
‘You know you guys aren’t in the union. ... Mick Lane has been here. He wants this to be a union site. All your blokes are members of the union, but some aren’t financial. There are one or two who aren’t actually a member.’
Other matters which were discussed at the meeting were superannuation, the need for a work method statement, an enterprise bargaining agreement, workers’ compensation and contract value.
207 In relation to an EBA with the Union, discussion took place about contacting the Union. Mr Suter agreed to go and meet with Mick Lane in the Union office to talk about the problems of Pro Finish Interiors, the problems of an EBA and the Union’s views on Pro Finish Interiors as a company with a view to trying to bring the Union and Pro Finish Interiors together to come up with an agreement to settle the problems.
208 Mr Repas mentioned that he had upgraded his workers’ compensation policy to cover 20 men.
209 In relation to the contract value of the works, Mr Repas was invited to go back and reprice the job in the light of the extra workers’ compensation and other expenses which were likely to be incurred.
210 Mr Suter said words to the effect:
‘Well, if we’re going to go through, the first thing we need to do to get things rolling here, along with you, [Spiro Repas doing the job you’ve got to do]. I’ll go and deal with Mick Lane at the union and see what we can do about getting together and coming up with some sort of solution to get the job rolling again.’
211 At about 2.40 pm, perhaps a little later, on 17 February 2004 Mr Suter telephoned Mr Lane introducing himself as being from Pro Finish Interiors and saying words to the effect:
‘We are down here at the Hansen and Yuncken site. ... I know you have got an issue with us. We want to come and discuss it and talk turkey and ... we’re prepared to talk about an EBA.’
Mr Lane replied:
‘Yeah okay.’
Mr Suter then said:
‘Well when are you available?’ to which Mr Lane replied ‘Well I am in my office now, if you want to come down.’
Mr Suter said,
‘Fine. I’ll be there in 20 minutes.’
Mr Suter proceeded to leave the meeting at the Wollongong site and drove to the CFMEU office to meet with Mr Lane.
212 Mr Suter was called as a witness by the applicant on a subpoena ad test. His evidence commenced on the afternoon of the third day of the trial and continued until shortly after midday on the fourth day of the trial at which stage an application was made by the applicant to question him as though the applicant were cross-examining him about certain matters in accordance with s 38 of the Evidence Act 1995 (Cth).
213 Following a hearing on the voire dire leave was granted to the applicant to so question Mr Suter in accordance with s 38(1)(c) of the Evidence Act 1995 (Cth) (see Hadgkiss v Construction, Forestry, Mining and Energy Union [2006] FCA 941; (2006) 152 FCR 560).
214 Following the grant of that leave, Mr Suter returned to the witness box on the seventh hearing day for a brief period of time after which his evidence resumed on the eighth hearing day and then continued on the ninth and tenth hearing days. On the eighth hearing day a transcript of a sound recorded interview with Mr Suter by a Mr Alfred and Ms Siciliano, which took place on 11 March 2004 between 10.17 am and 11.12 am and then between 12.16 pm and 1.15 pm, was tendered and admitted, without objection, as Exhibit A10. The recorded interview sets forth Mr Suter’s account of events occurring between 11 and 17 February 2004 to which he was privy in relation to the engagement of Pro Finish Interiors to carry out work in the Illawarra area. I am satisfied that Mr Suter had no particular axe to grind. I consider that his account of the relevant events as set out in the record of interview has a ring of truth about it.
It is blindingly obvious that there were significant discrepancies between Mr Suter’s unaided recollection of the relevant events, as given in his evidence in chief on 19 and 20 July 2006, and his account of the relevant events as provided by him to Mr Alfred and Ms Siciliano on 11 March 2004. I am satisfied that the discrepancies are of little moment given the passage of time which has elapsed since the events occurred. My impression is that Mr Suter’s recollection of the events that occurred almost two and a half years previously had dimmed significantly such that where his evidence in July 2006 was at variance with his account of the relevant events, as given to Mr Alfred and Ms Siciliano on 11 March 2004, his March 2004 account is to be preferred. I am satisfied that the account which he then gave was reliable, subject to the possible criticism that in his account of conversations with Mr Lane he might have thrown in a few more expletives than were in fact used by Mr Lane at the time. Having said that, I would adopt without reservation Mr Suter’s 11 March 2004 account of his 17 February conversation with Mr Lane in preference to any account proffered by Mr Lane, to the extent to which they were at variance with one another.
215 The meeting between Mr Lane and Mr Suter at the CFMEU office lasted, according to Mr Suter, from about 3.00 pm until 5.20 pm. Given that Mr McEwan’s file note made earlier in the day in respect of his meeting at the Wollongong site with Messrs. Bowman, Repas and Suter, recorded that ‘Glen (sic) advised he contacted Mick Lane @ 3.15 pm to arrange a meeting’, it would seem to me more likely that the meeting between Mr Lane and Mr Suter commenced closer to 3.30 pm than 3.00 pm. Mr Lane’s recollection, such as it was, was that the meeting was of some length but not more than one hour. Given the detail contained in Exhibit A10, I would have thought that the meeting probably lasted for close to two hours. During the course of the meeting Mr Suter says that conversation took place with Mr Lane as follows:
Suter: ‘I’m here to talk to you about ... Profinish and where we stand with the union and generally the construction industry of Wollongong and to try ... and get on ... some terms here so we can get along and get on with some jobs around here’.
...
Lane: ‘You’re fuckin’ here to wave a white flag for that fuckin’ Spiro Repas, are ya. I don’t give much ... for that bloke’.
Suter: ‘I’m here to negotiate on behalf of Spiro because I’m the site foreman and I’m his ... main man on that site [referring to Hansen Yuncken] ... previously ... I’ve dealt with his union problems ... and I continue to do so now if he doesn’t do it.’
Lane: ‘Oh, right. So what’s he fuckin’ think he’s doing up there? ... I’ve been fuckin’ chasing him for years. He’s fuckin’ been avoiding me. I know he’s not fuckin’ been paying entitlements to cunts out there. ... He thinks he can fuckin’ run around here and think he’s fuckin’ king of Wollongong, he’s fuckin’ wrong, he can fuck off.’
Mr Suter proceeded to get across to Mr Lane the point that he was at the CFMEU office to talk about an EBA. He says that conversation, part of which has been mentioned above, then continued as follows:
Suter: ‘I’m here to discuss the problems the union has with Profinish’.
Lane: ‘Well the fuckin’ problems I’ve got with fuckin’ Profinish, mate, fuckin’ I’ve got ’em all over me fuckin’ desk here. I can go through papers and find complaints about fuckin’ Profinish all over my fuckin’ desk here. ... And the fuckin’ trouble, all he had with the ... fuckin’ Penrith well I’ll fuckin’ tell you, if you’re gunna fuckin’ work around here mate. When he fuckin’ gets down to that Belmorgan fuckin’ job mate. I’ll be fuckin’ down there, don’t you worry. You won’t be fuckin’ keeping me off there ...’
According to Mr Suter, whose
evidence I accept, Mr Lane ‘finally settled down’ as the meeting
progressed. Thereupon conversation
continued as follows:
Lane: ‘Well, okay we’re here to talk about an EBA. What’s he fuckin’ gunna do about it then?’
Suter: ‘I’m only here to sort it out. He will make the final decision of [sic] what he wants to do so let’s talk about what you guys want first. You tell me what you want ...’
216 Mr Lane proceeded to obtain an E copy of the union EBA. He also had other EBAs that workers at the Fairy Meadow site were working under. Conversation then continued:
Lane: ‘That’s what we want’.
Suter: ‘Mick, I’m not here to make you promises. I[‘ll] ... take the information back to Spiro and put it on his desk and he’ll make the decision. I don’t make this decision, I don’t spend his money, I don’t pay his wages. I just control his jobs and run his men’.
217 Mr Lane’s affidavit evidence was that during the course of the meeting on 17 February 2004 he gave Mr Suter a ‘pro forma’ copy of the terms of a CFMEU EBA and said to him, amongst other things, ‘that’s the sort of agreement we’d like to reach with you ...’.
218 Whilst Mr Suter’s recollection in July 2006 was that he only had one meeting with Mr Lane at the CFMEU office and that meeting was attended by not only himself but also Mr Repas, I am satisfied that a second meeting took place at the CFMEU office on Friday 20 February 2004 which was attended by Messrs Lane, Suter and Repas. Little is known of what transpired at the 20 February 2004 meeting. However by reference to the date, ‘20 February 2004’, appearing at the foot of pages 2 to 34 inclusive of a form of
‘Collective Bargaining Agreement’
‘Between
Company Name &
Employees &
Construction, Forestry Mining Energy Union
Construction and General Division
NSW Branch’
which is reproduced at pages 606 – 639 of Exhibit A1 in these proceedings, it is clear that such pro forma document must have been printed out in the CFMEU office on 20 February 2004 and given to Mr Suter and Mr Repas on that day.
219 Returning to the meeting between Mr Lane and Mr Suter at the CFMEU office on the afternoon of Tuesday, 17 February 2004, Mr Suter says, and I accept, that after mention had been made of the problems the Union had experienced with Pro Finish Interiors at Penrith Mr Suter explained to Mr Lane that the problems with Penrith were all the Union’s problems, not Pro Finish Interior’s problems because the problems at Penrith had resulted from some of the men signing an EBA up there. It wasn’t ratified, but it was signed. Apparently it was a legal document which provided for above award wages and then the men wanted to renege on it. They took it to the Union. The Union didn’t come on site, they met the men off site.
220 When the men returned to the site Suter had said ‘You guys have obviously been to the union meeting. I didn’t come down in the last bloody shower. I know what happens when six blokes are all sticking together and walk off site and don’t show up for an hour ... there’s obviously a union meeting going on somewhere. And so do you want to tell me about it?’
The men had replied ‘We just had a meeting over at the café over there’. They explained what it had been about. Suter had said:
‘That’s fine, no problems ... now they’ve got the EBA, tell them to contact me when they’re ready to deal with it. ... If you guys aren’t happy with that EBA ... If you don’t want to work here under these conditions you can leave now, or you can leave in a week’s time. .. if the union come back and verbal with this and they’re not happy with it, well then we’re going to tear it up and put you on award wages, alright? ... if you’re not happy with that you can feel free to leave too. But if you want to just stay you work on the EBA, I don’t care less the fact that you just had a union meeting, let’s get on with the job’.
221 Mr Suter explained to Mr Lane that the Union never got back to him. That part of the discussion (concerning a site at Penrith) lasted for some 20 minutes.
222 Thereafter further discussion took place between Mr Lane and Mr Suter as follows:
Lane: ‘I’ve got so and so down here on EBA ... Illawarra United ... plastering company. I’ve got fuckin’ Innovation up here, they’re all on fuckin’ wages, on an EBA up there [Lane says "maybe yes" when asked if he said words to this effect] – mate they’ve got no fuckin’ sole traders up there at all ... and so and so down here he’s on an EBA and Steven Plasterers, they haven’t got an EBA. They’re gunna do one soon. They don’t employ sole traders at all, he won’t touch ’em. ...’
223 Further discussion then took place as follows::
Suter: ‘Righto Mick, ... you want all the guys on an EBA up there ... We’re not saying we won’t do it. We’re saying, we’re gunna go back and discuss it. ... how do you feel about me working up there as a sole trader because I won’t be working there [at the Hansen Yuncken site] on wages.’
Lane: ‘Well, you ain’t got fuckin’ tools on mate. I don’t give a fuck what you do. [Lane agrees words to this effect spoken, if expletives deleted] But the minute you put that fuckin’ nail bag on, you’re on wages.
If you want to be in the fuckin’ industry here mate, you’ve got to go with the fuckin’ flow mate. ... You’ve got to get on a fuckin’ level playing field with all the rest. So you, all you blokes out there, sole traders and EBA guys and everybody’s got to be on a level playing field so everybody competes. How do you reckon it’s going to look for me if fuckin’ Innovations say to me How come you let those cunts out of that fuckin’ job [Hansen & Yuncken] down there. ... What are those cunts down there doing that job when they haven’t got a fuckin’ EBA?’
...
Suter: ‘We’re here to look at it. No guarantees when I walk out of here. I’m going to go back and speak to Spiro’.
...
Lane: ‘What do you fuckin’ think these blokes are going to think of me when Profinish are down there on the Hansen Yuncken site without an EBA and down there with all these fuckin’ sole traders down there and you, you guys are up there working under an EB and he’s down there undercutting you by a hundred thousand dollars for the job. They can’t win a job because he’s down there undercutting on sole traders.’
According to Mr Suter, Mr Lane implied very, very strongly (but didn’t expressly say) that if Pro Finish Interiors didn’t have an EBA it couldn’t work on the Wollongong site.
224 During the course of the meeting Mr Lane said words to the effect of anything that’s said at this meeting, I’ll completely deny, if raised on another occasion. When cross-examined about Mr Lane’s use of such words Mr Suter said, ‘Mick said that to me in the meeting as plain as day’.
225 Conversation between Mr Lane and Mr Suter turned to Union membership fees. It continued:
Lane: ‘I spoke to fuckin’ Spiro Repas and he fuckin’ told me that his blokes wouldn’t fuckin’ touch the union. Now I’ve got a fuckin’ piece of paper here saying fuckin’ half of youse are in the union’.
Suter : ‘Yeah, we’ve no fuckin’ problem with the union.’
Lane : ‘Well what’s the fuck he telling me that for?’
Suter: ‘Well because he just doesn’t bother asking and he wouldn’t have a clue. He doesn’t hire and fire blokes, I do that, he wouldn’t know. I ask them. I could have fuckin’ told you if you’d rung me. But Spiro wouldn’t have a clue mate. He just pays the fuckin’ bills. He pays the wages, you know. That’s what Spiro’s about. I do all that shit mate.
...
The issue with the blokes being in the union on the Hansen and Yuncken site. ... that’s not even a problem, that’s not even an issue Mick. I can come in here and fix that up, we can sort that out. ... And get the guys up to date ... With no problem at all. I only have to ask these guys mate. ... I go up and say ... we’ve got to do the union guys and they’ll sort it out and it’ll be done in 5 minutes. ... As far as the union goes, ... we haven’t got a problem with the union. We’ve got no problems being with the union, being union members, nobody’s got a problem with that, ... but Spiro wouldn’t know that .... When we get to that mate, ... that’s a minor issue’.
Mr Suter may have been stretching things by suggesting that all of the Pro Finish Interiors’ workers would be willing to become financial members of the Union to enable them to continue to work on the Wollongong site. Clearly, he had no authority to make any commitments on behalf of those workers.
226 During the course of the meeting further conversation took place as follows:
Lane: ‘Why the fuckin’ hell, should I let fuckin’ sole traders on my site. ... I’ve got fuckin’ 50 blokes and they’re all fuckin’ members of the union. And you cunts come in, you’re not a member of the union. ... You’re getting all the fuckin’ entitlements the union’s got ya and you won’t even pay your fuckin’ dues.
...
That fuckin’ site is going to be a union site. I’m going to fuckin’ have that site, I’m going to and that’s going to be a fuckin’ union site.
...
And I want fuckin’ EBA workers only there.’
227 When cross-examined about the last mentioned passage from the conversation, Mr Suter gave the following evidence:
Q. ‘... I suggest to you he never said words, that fucking site is going to be a union site?’
A. ‘In his throwing his hands around, yes, he did say that to us, I’m sure Spiro was there when he said that.’
Q. ‘And he never said, I’m going to fucking have that site?’
A. ‘He said he’s f-ing having that site, I recall him saying he was going to have the site. I seem to recall that he was going to make it a union site but not have that f-ing site.’
Q. ‘Can I suggest that he never said, that’s going to be a fucking union site?’
A. ‘He said that he wanted to make it a union site, I don’t recollect, I recall him saying he wanted to make it a union site, I definitely recall him saying that while the meeting was on.’
Q. ‘And he never said, I want fucking EBA workers only there?’
A. ‘I don’t have any recollection of him saying that, Mr Pearce.’
228 Notwithstanding Mr Suter’s lack of recollection in July 2006 of Mr Lane having said on 17 February 2004, ‘I want fucking EBA workers only there’, I am satisfied that greater reliance should be placed upon Mr Suter’s recollection of events as recorded in his interview with Mr Alfred and Ms Siciliano on 11 March 2004 when the matters were, relatively speaking, fresh in his mind.
229 I would observe that Mr Suter used the words, ‘I don’t have any recollection of him saying that, Mr Pearce’, just after the hearing resumed at 11.45 am on 28 July 2006 following a short adjournment to allow Mr Suter to get his mind back into gear. Before, the short adjournment Mr Suter’s evidence had been:
Q. ‘And he didn’t say to you, why the fucking hell should I let sole traders on my site, he didn’t use those words, did he?’
A. ‘Can I suggest to you, Mr Pearce, my concentration span has just about gone back to nothing at the moment totally given [I thought the witness said ‘totally gone’]’.
230 Shortly before that Mr Suter had been asked a question in cross-examination which elicited a response to the effect that if you want to know what was actually said you should refer to the transcript of my interview which I made when the facts and matters were ‘fresh in my mind’.
231 According to Mr Suter the conversation with Mr Lane at the CFMEU office on 17 February 2004 continued with Mr Lane saying in relation to Hansen Yuncken:
‘they fuckin’ let you blokes fuckin’ sneak in the fuckin’ back door on that job and fuckin’ told nobody mate’.
232 It was at this stage in the meeting between Mr Lane and Mr Suter that Mr Lane’s mobile telephone rang whereupon Mr Lane had a conversation on it with Mr Casper, whose distinctive North American accent could readily be overheard and identified. After Mr Lane has finished speaking to Mr Casper at about 4:00 pm, further conversation ensued as follows:
Lane: ‘What the fuckin’ hell’s going on ? What’s fuckin’ Repas up to now? I hope they don’t’ hear me out there [referring to the staff in the general office of the Union], they’ll come and beat me.’
Suter: ‘What’s the go? ... what’s your problem?’
Lane: ‘If he fuckin’ thinks he is going to put all his fuckin’ men down on that site [referring to the Fairy Meadow site], he can fuck off. Who’s he fuckin’ think he is mate?’
Suter: ‘You’re (sic) not putting his men down there’
Lane: ‘I just got a fuckin’ phone call saying that all the fuckin’ Pro Finish blokes are working on that site tomorrow. Well I’ll fuckin’ tell you they’re not.’
Suter: ‘Hang about. Someone’s giving you false information here Mick. You sit down for a minute and I’ll tell you what happened. ... A couple of hours ago Graham [Boyd] rang me looking for men. And I sent all my men down there to work for him. No money involved, no exchange. I’ve terminated them yesterday. They’re working, they’re employed by Innovation today. He’s [referring to Graham Boyd of Innovation Interiors] - been told to employ them. He’s employing them, he’s paying them wages, their super, their BUS the whole lot mate. They’re union members. They’re entitled to be there’.
Lane: ‘Well as long as they ain’t fuckin’ working for Pro Finish down there’.
Suter: ‘No, they’re working for Innovation’.
233 Mr Suter indicated to Mr Lane that he could ring Mr Boyd of Innovation Interiors if he wished, to establish that Innovation Interiors rather than Pro Finish Interiors would be employing the Pro Finish Interiors’ workers at the Fairy Meadow site on the following day.
234 Mr Suter’s impression was that at this stage, Mr Lane started to back off a little bit.
235 Discussion then continued about a possible EBA with Pro Finish Interiors. At the end of the meeting Mr Suter said:
‘Righto Mick, that’s it, we’ve talked. I’m going to go back and speak to Spiro. Now if he wants to continue with this, it’s up to him. If he wants to have a meeting with you, that’s up to him. ... I’ll get back to you and I’ll let you know what we’re going to do, okay ... but no promises, I’m walking out of here, no promises. I’m trying to get something going here. If Spiro doesn’t want to follow through, that’s between you and him mate. But I’ve washed my hands after this today.’
236 Towards the end of the meeting Mr Lane said in relation to the Hansen Yuncken job at the Wollongong site:
‘I can fuckin’ have the fuckin’ tax man investigate for fuckin’ pay roll tax. I can have the fuckin’ alley mack drivers not take your fuckin’ gear up. I can have the fuckin’ crane not take your fuckin’ gear up ...’
237 When cross examined about this part of the conversation Mr Suter gave the following evidence:
Q: ‘ ... Can I suggest that he never said, I can having the fucking Alley Mack driver not take the fucking gear up?’
A: ‘Yes, I remember Mick spitting that out and throwing his hands around, yes, I recall him saying that.’
Q: ‘And can I suggest to you he said that, he never said to you, I can having the fucking crane not taking your fucking gear up?’
A: ‘I don’t recall him saying about the crane, he may, or may not have, I remember him throwing his hands up about the Alley Mack driver, yes.’
Once again, I am satisfied that greater reliance should be placed upon Mr Suter’s recollection of events as recorded in the transcript of his interview on 11 March 2004.
Mr Suter included the observations as to what Mr Lane said he could do in relation to the Wollongong site in his record of interview in response to an invitation by Mr Alfred to respond to the question, ‘So there was no discussion about interrupting that site ...?’
The response provided by Mr Suter included an observation by him as follows:
‘That was the threats he [Mr Lane] made ... that if we went on there [the Wollongong site] and we didn’t comply, that that’s what was going to happen. The alley mack ... wouldn’t take our gear up and I’ve seen that sort of thing go on before with companies we’ve been working from (sic). You know, they’ll just drive straight past you. ... Hansen and Yuncken ... assured me at a later meeting that no, that wouldn’t have happened.’
238 When it was put to Mr Lane that he had used the words attributed to him by Mr Suter he gave the following evidence in cross-examination:
Q: ‘... you said words to the effect of, You can have the tax man investigate the payroll tax?’
A: ‘Yes possibly.’
Q: ‘You said, I can have the fucking Alley Mac (sic) drivers not take your fucking gear up?’
A: ‘The gear wasn’t taken up in Alley Macs (sic), why would I say that?’
Q: ‘I am suggesting to you you said those words?’
A: ‘Well, I am suggesting to you that I didn’t no.
...’
Q: ‘You said, I can have the fucking crane not take your fucking gear up?’
A: ‘The what?’
Q: ‘I can having the fucking crane not take your fucking gear up?’
A: ‘... I don’t make stupid threats and neither do I make threatening sort of innuendos that at the end of the day you look nothing like an idiot because you can’t follow through with them?’
...
Q: ‘... I’m suggesting to you that you did say those words and that you deny it because you know to acknowledge the words that you said would be prejudicial to your case?’
A: ‘I understand what you’re saying Mr Fernon, I don’t know how much firmer to be able to say no, I did not say those words.’
Q: ‘And your purpose of saying the words that you said to Mr Suter or that I’ve suggested that you said to Mr Suter in the meeting was to coerce him and Pro Finish into making an EBA with the CFMEU?’
A: ‘A very minor part of the whole meeting.’
Q: ‘What do you say was the minor part of the whole meeting?’
A: ‘The issue of an enterprise agreement at all.’
239 Shortly thereafter I asked a question of Mr Lane which elicited the following answer:
Q: ‘Mr Lane, it has been suggested to you that you did say all of the things that have been put to you whether you admitted them or not, that is to say in relation to tax investigations regarding payroll tax in relation to Alley Mac drivers and in relation to crane people and it has been suggested to you you said all of those things and further that your purpose in doing so was to coerce Mr Suter and Pro Finish to make an EBA agreement with the CFMEU. What do you say in relation to that suggestion?’
A: ‘Not true.’
240 I am satisfied that at the meeting at the CFMEU office between Mr Suter and Mr Lane on the afternoon of 17 February 2004, Mr Lane indicated a desire on the part of the Union that Pro Finish Interiors should enter into an enterprise bargaining agreement with it. I am also satisfied, as Mr Suter said, that Mr Lane implied ‘very, very strongly’ that if Pro Finish Interiors didn’t have an enterprise bargaining agreement with the Union, it couldn’t work on the Wollongong site. However Mr Lane did not say so.
241 I am further satisfied that Mr Lane explained to Mr Suter what he ‘could’ do if Pro Finish Interiors did not ‘comply’ with the Union’s demands. However, I could not, on the evidence before me, read into Mr Suter’s use of the word ‘comply’ a threat by Mr Lane directed to Pro Finish Interiors were it to fail to enter into an enterprise bargaining agreement with the Union.
242 I am also satisfied that Mr Lane said to Mr Suter that the Wollongong site was ‘going to be a union site’, meaning thereby, one at which you couldn’t work if you didn’t have a Union membership ticket.
243 The meeting between Mr Lane and Mr Suter concluded at about 5:20 pm on 17 February 2004 whereupon Mr Suter jumped in his car and ‘hit the freeway’ to North Nowra where he lived. During the course of his journey Mr Suter telephoned Mr Repas and told him the end result of the meeting. He then said, ‘The next thing for us to do now is for you to have a meeting with Mick’. Mr Suter informed Mr Repas that a meeting with Mr Lane had been arranged for the following Friday afternoon, 20 February 2004.
Wednesday 18 February 2004
244 When Norm Philipp, Reinhard Philipp, Barry Sindel, Anthony Summers, Tony Morgan, Geoff Harnett and Albert Lilley arrived at the Fairy Meadow site on the morning of Wednesday 18 February they each signed a document which had previously been signed by Innovation Interiors’ workers stating ‘Received and read company’s Safe Work Method Statement’. Against their respective signatures the date ‘17/2/04’ appears. It seems to me that the date was incorrectly recorded against their respective names and it should have been ‘18/2/04’.
245 Given that Mr Summers worked for nine hours for Pro Finish Interiors at the Penrith Plaza site on Tuesday 17 February 2004 it seems highly unlikely that he was at the Fairy Meadow site on that day.
246 When Norm Philipp, Reinhard Philipp, Anthony Summers, Barry Sindel, Tony Morgan, Geoff Harnett and Albert Lilley arrived at the Fairy Meadow site on Wednesday 18 February 2004, Mr Norm Philipp approached Mr Boyd whereupon conversation ensued to the following effect:
Norm Philipp: ‘Are you looking for blokes?’
Boyd: ‘Yeah, I need about 8 blokes, for about a week’s work.’
Norm Philipp: ‘Look, you’re going to have trouble with the union. They’ve already been on our case before. If you have any hassles with them, we’ll just go, you know, we’ll leave now.’
Boyd: ‘No. I need youse up there. Go up there and start working.’
247 Mr Sindel established where the work was to be done whereupon the newly arrived workers proceeded into the relevant building and commenced work. Shortly thereafter they were summoned to the site shed in the car park level of the building for induction. Notwithstanding that Norm Philipp, Reinhard Philipp, Barry Sindel and Anthony Summers had previously been inducted, they were required by Lanskey to undertake a further induction. During the course of the induction Mr Casper asked Mr Summers whether he had thought any more about joining the Union to which Mr Summers replied ‘No, I haven’t reconsidered’.
248 Mr Casper asked Mr Reinhard Philipp ‘Have you thought any more about joining the Union?’, to which he replied ‘It’s against my religion’.
249 In his statement made 19 May 2004 Mr Reinhard Philipp had said that he was ‘not site inducted on this occasion’, however, I am satisfied that he attended the site shed along with the other workers.
250 When Mr Casper asked Mr Norm Philipp had he thought any more about joining the Union, Mr Norm Philipp replied to the following effect:
‘Nope. Not interested mate. You know that I was [in his statement made 19 May 2004 he said "I’m"] in the Union, I’m not financial, I haven’t paid it, I’ve got no intention of paying it. When I was working on the RPA site they forced me to join the union there, I did, and I told the bloke I’d resign on the first day. I went to give him a letter, the union bloke, and he threw it back at me. He said "you can’t do that, if you do that, I’ll take it to the members on site and you won’t be working here." I said "mate, that’s my letter of resignation, you didn’t accept it, I’m not paying a cent more".’
251 When Mr Sindel was asked whether he had thought any more about the Union his response was ‘I’ve got a friend who’ll sort this out for me’.
252 Following the induction meeting the men returned to work on the site.
253 On the afternoon of 18 February 2004 Mr Lane visited the Fairy Meadow site. In his affidavit he said, ‘I do not now recall the specific purpose of my visit on that day, but I do know that it was not for the specific purpose of meeting on the site the former Pro Finish workers who were apparently seeking to come on to the site on behalf of Innovation’. Whilst I accept that Mr Lane did not in August 2006 recall the specific purpose of his visit to the Fairy Meadow site on the afternoon of Wednesday 18 February 2004 I do not accept for one moment his assertion that it was not for the specific purpose of meeting the workers whom he described as ‘the former Pro Finish workers’. It will be recalled that at 9:13 am on that day Mr Casper had forwarded his facsimile to the CFMEU office seeking Janet McIntosh’s assistance in providing details of the Union memberships and financial status of the relevant workers with the request that, not only should the form when completed be faxed back to Mr Casper, but also a copy of it should be given to Mr Lane. I have no doubt that this occurred and that it was the catalyst for Mr Lane’s visit to the Fairy Meadow site, especially in the context of the events of the preceding two days concerning the Wollongong site. As Mr Suter said in his record of interview of 11 March 2004, when asked about Wednesday 18 February:
‘Wednesday, the 18th was, ... eventful. ... that was a (sic) day of the men starting ... work on the Lanskey job in Fairymeadow ...’
Earlier in the record of interview he said:
‘... the union thing started to escalate – just started to grow ... more or less from the Wednesday conversations ...’
254 Early in the afternoon on 18 February 2004 Mr Lane and Mr Casper approached Mr Norm Philipp and Mr Reinhard Philipp who were working together at the time. Thereupon, according to Mr Norm Philipp, conversation ensued as follows:
Lane: ‘What’s the matter with youse fucking blokes?’
Norm Philipp: ‘What do you mean?’
Lane: ‘Why don’t you want to join the union?’
Reinhard Philipp: ‘It’s against my religion to join, mate, there’s no such thing as a union site.’
Lane: ‘You fucking bastards have been working on PPS [prescribed payments system] too long.’
Norm Philipp: ‘Mate, get with the fucking times. PPS went out about six or seven years ago.’’
Lane: ‘Mate, you don’t join the union, you’re not working on this fucking site, you’re not working on the other fucking site, and you won’t be working on a fucking site in Wollongong again.’
Reinhard Philipp: ‘You’re a fuckwit. Why don’t you get a fucking real job.’’
According to Mr Norm Philipp, Mr Lane was yelling when he spoke and becoming red in the face, gesturing with his hands in an intimidating manner.
255 Mr Casper did not hear and denied that Mr Lane used words to the effect ‘You fucking bastards have been on PPS too long’ and ‘Mate, you don’t join the union, you’re not working on this fucking site and you won’t be working on a fucking site in Wollongong again’.
256 When cross-examined about this conversation Mr Norm Philipp gave the following evidence:
Q: ‘... he [Mr Lane] never threatened you about not working in Wollongong again?’
A: ‘Yes, he did.’
Q: ‘And he never threatened you about not working in Wollongong again if you didn’t join the union?’
A: ‘Yes, he did.’
When cross-examined about the conversation Mr Lane gave the following evidence:
Q: ‘And you said, "Mate, you don’t join the union you’re not working on this fucking site. You’re not working on the other fucking site and you won’t be working on a fucking site in Wollongong again". You said those words, didn’t you?’
A: ‘Flatly deny it.
Q: ‘Do you flatly deny it because you know that to acknowledge those words would be prejudicial to your case in this court?’
A: ‘No I don’t. I deny it because I wouldn’t have said it and neither do I say it.’
257 When questioned about the relevant conversation Mr Casper said that Mr Lane ‘didn’t use any expletives or foul language’. I must say that I find this very difficult to accept.
258 In his statement dated 19 May 2004 the late Reinhard Philipp attributed the following words to Mr Lane:
‘You blokes have been working on PPS too long, you’re out of date. This is a union site, if you’re not in the union you won’t work on the site. You won’t be working anywhere in Wollongong.’
259 When asked about Mr Reinhard Philipp’s retort, ‘You’re a fuckwit. Why don’t you get a fucking real job’, Mr Lane gave the following evidence:
Q: ‘Those words were said to you by the worker, I suggest was Mr Reinhard?’
A: ‘Possibly.’
260 I am satisfied that on the afternoon of 18 February 2004 Mr Lane said to Mr Norm Philipp and Mr Reinhard Philipp with whom he was then in conversation:
‘... you don’t join the union, you’re not working on this fucking site, you’re not working on the other fucking site, and you won’t be working on a fucking site in Wollongong again’
and that Mr Reinhard Philipp responded by saying:
‘You’re a fuckwit. Why don’t you get a fucking real job.’
261 In the early afternoon on 18 February 2004 Messrs Lane and Casper also had a discussion with Mr Summers. According to Mr Summers, conversation ensued as follows:
Lane: ‘Who do you work for?’
Summers: ‘I’m contracted by Innovation?’
Lane: ‘... Are you a member [of the Union]?’
Summers: ‘No.’
Casper: ‘I’ve asked you twice to become a member. This is a union site, and you have to be in the union to work here.’ [in his statement of 20 May 2004 Mr Summers apparently said ‘I should be in the union’.]
Lane: ‘You won’t get back on this site [indicating the Fairy Meadow site], that is a union site, and you won’t get back on that site [indicating the Wollongong site] if you’re not a union member.’
In his statement Mr Summers apparently attributed the following words to Mr Casper:
‘I’ve asked you twice to become a member.’
and then continued by saying:
‘They told me that it, "the Lanskey site", was a union site and I should be in the union.’
When cross-examined, Mr Summers said ‘I remember one of them saying it. They didn’t say it together.’
262 When it was said that the Fairy Meadow site was a ‘union site’ and that Mr Summers ‘should be in the union’, Mr Summers did not understand the statement as being an expression of opinion. Rather, he saw it more as a ‘demand’.
In his earlier statement Mr Summers had also included a response by him namely ‘That’s fair enough, you have your opinion’.
263 I accept Mr Summers’ evidence that the conversation which occurred was expressed in a more refined form in his affidavit sworn 2 February 2006 than it was recorded in his statement of 20 May 2004.
264 Mr Lane denied using words to the effect ‘You won’t get back on this site, that (sic) is a union site, and you won’t get back on that site if you’re not a union member’.
265 Mr Lane did, however, concede that in the early stages of the Fairy Meadow project a resolution had been passed to the effect that the Fairy Meadow site be a ‘union site’.
266 When asked about the meaning of the expression ‘union site’, Mr Lane gave the following evidence:
Q: ‘What you’re indicating by the use of the expression "union site" is that that phrase indicated that workers be in the union in order to work on the site, isn’t that right?’
A: ‘Yes, but in reality no.’
Q: ‘But when you say to someone this is a union site what you’re saying to them is that this is a site where you have to be a member of the union in order to work on the site?’
A: ‘I disagree.’
Notwithstanding the discrepancies between Mr Summers’
statement and his affidavit and notwithstanding the evidence of Messrs
Lane and
Casper in relation to the conversation with Mr Summers, I accept that on the
afternoon of 18 February 2004 Mr Lane said
to Mr Summers words to the effect
‘You won’t get back on this site or the Wollongong site if
you’re not a member
of the union’.
267 Following the conversations of Messrs Lane and Casper with Messrs Norm Philipp and Reinhard Philipp and of Messrs Lane and Casper with Mr Summers, each of Mr Norm Philipp, Mr Reinhard Philipp and Mr Summers continued to work on the Fairy Meadow site until around 3:00 pm.
268 However, Mr Ned Djukic says, which Mr Casper disputes, that, on the morning of 18 February 2004 Mr Casper telephoned him and asked him to meet him in the car park under the building. Mr Djukic says that he proceeded to the car park where Mr Casper said to him ‘I don’t want these four people on site. I was abused and swore at.’ Mr Djukic understood the reference to ‘these four people’ to be a reference to ‘the four new people that started that day’. I am satisfied that the conversation took place as alleged by Mr Djukic.
269 Mr Djukic says that he proceeded to tell his foreman Mr Boyd that ‘Skip [referring to Mr Casper] will not allow us to keep the new four workers on site’. Mr Djukic has no recollection of seeing the four extra workers that arrived that day, again after that.
270 According to Mr Reinhard Philipp’s statement made 19 May 2004 Mr Boyd spoke to Reinhard Philipp, Norm Philipp, Anthony Summers and Barry Sindel on the afternoon of 18 February 2004 and said words to the effect ‘I don’t need youse, there’s not enough work to keep all of us going’. To which Mr Reinhard Philipp responded, ‘Fair enough’.
271 In his affidavit Mr Norm Philipp said that Mr Boyd approached himself and ‘the relevant ABN workers’ on 18 February 2004, whilst the men were working, and said words to the effect, ‘We don’t need you anymore, you can finish the day out’.
272 According to Mr Summers’ affidavit Mr Boyd approached him at around 1:00 pm and said words to the effect ‘I’m sorry mate, I think we’re catching up pretty much with the work’. According to Mr Summers’ statement his response had been, ‘That’s okay, that’s fair enough.’
273 In relation to the ‘Pro Finish Interiors’ workers’ who attended at the Fairy Meadow site on 18 February 2004 to work for Innovation Interiors, Mr Boyd gave evidence that on 18 February 2004 he spoke to Messrs Norm Philipp and Reinhard Philipp, Anthony Summers and ‘another fellow which I cannot remember his name’ (presumably, Barry Sindel). Mr Boyd said to the men:
‘I’m going to have to let you go this afternoon because there is not enough work to keep you on.’
According to Mr Boyd that was not a true statement. Indeed, on the following day another new ‘Pro Finish Interiors’ worker’, Mr Bryan Harnett, commenced work at the Fairy Meadow site for Innovation Interiors.
274 According to Mr Boyd the workers who came on to the site on 18 February 2004 ended up staying for a week to two weeks, apart from those who were told by him that their services were no longer needed in the manner indicated above. Such workers were Tony Morgan, Geoff Harnett and Albert Lilley.
275 According to Mr Boyd the four who were informed that their services were no longer needed were selected because Mr Boyd’s boss (Mr Ned Djukic) had informed him that they ‘did not want to join a union’.
276 Mr Boyd said that he’d never been put in such a position before. In the circumstances he took a witness with him when he informed the workers that he would have to let them go ‘because there is not enough work to keep you on’.
277 When Mr Norm Philipp left the Fairy Meadow site on Wednesday 18 February 2004 he said to Mr Boyd:
‘I know you got pressured by the union to get rid of us. I don’t blame you. If I got pressured like that, I’d think about doing the same thing you did. I don’t blame you at all’.
To which Mr Boyd replied:
‘Sorry’.
278 As indicated above, a ‘deal’ was done in respect of Mr Sindel’s membership of the Union with the result that he continued to work on the Fairy Meadow site along with Tony Morgan, Geoff Harnett, Albert Lilley and Bryan Harnett.
279 That night, Mr Boyd proceeded to ring Mr Suter to tell him what had happened and how he felt and what he could do about it.
280 At about 7:00 pm on 18 February 2004 Mr Suter telephoned Mr Summers following his discussion with Mr Boyd, a discussion with Mr Geoff Harnett, in which Mr Harnett had informed Mr Suter of a willingness on Mr Summers’ part to join the Union if it meant that he could stay on site and a further discussion with Mr Boyd, who indicated that if that was the case he could go back to work at the Fairy Meadow site on the following day. Mr Suter informed Mr Summers that he wanted him to go back to work at the Fairy Meadow site on the following day, which he proceeded to do. Indeed, Mr Summers worked at the Fairy Meadow site on both Thursday 19 February and Friday 20 February 2004.
281 On 19 February 2004 Mr Summers had a conversation with Mr Casper to the following effect:
Summers: ‘I will probably join the union if I stay on this job, but the finances aren’t real good at the moment and we haven’t been paid yet, so I’m still waiting to get some cash. I’ll fix you up with that as soon as I get some money.’
Casper: ‘Yeah.’
282 On the following day Mr Summers said to Mr Casper ‘I’ll fix you up on Monday’.
283 Notwithstanding this expression of willingness on the part of Mr Summers to join the union, Mr Summers said that he had a further conversation with Mr Boyd and Mr Tony Morgan on the afternoon of Friday 20 February 2004 in which Mr Boyd said words to the effect:
‘We’ve caught up with a fair bit of work, and we won’t need you or any of the other four workers from Innovation (sic) any longer. Frankly, the union doesn’t like people with ABN’s being on the job and being paid that way. They don’t like Innovation using people with ABN’s. They’ve turned a blind eye in the past because work was getting behind, but not now.’
284 In cross-examination Mr Summers conceded that the last sentence had not been included in his account of the relevant conversation in his statement of 20 May 2004. His explanation for the addition in his affidavit was that he had had more time to think about the details of the conversations. I accept Mr Summers’ explanation and also his evidence as to the terms of the conversation.
285 By virtue of the conversation between Mr Boyd and Messrs Norm Philipp,
Reinhard Philipp, Anthony Summers and Barry Sindel on
18 February 2004, neither
Mr Norm Philipp nor Mr Reinhard Philipp returned to the Fairy Meadow site after
18 February 2004. Mr Summers
did in fact return to the site, notwithstanding
the terms of the conversation, on Thursday 19 and Friday 20 February 2004, only
to
leave after the further conversation between Mr Boyd, Mr Morgan and Mr
Summers on the afternoon of 20 February 2004.
Mr Sindel continued to work
at the Fairy Meadow site.
286 Whilst I accept Mr Djukic’s evidence that Mr Casper said to him on 18 February 2004 words to the effect ‘I don’t want these four people [referring to Mr Norm Philipp, Mr Reinhard Philipp, Mr Anthony Summers and Mr Barry Sindel] on site. I was abused and swore at’ and I further accept that Mr Djukic told Mr Boyd on that day ‘Skip will not allow us to keep the new four workers on site’, nevertheless there is no evidence that Mr Casper had said to Mr Djukic that he did not want Mr Norm Philipp, Mr Reinhard Philipp, Mr Anthony Summers and Mr Barry Sindel on the Fairy Meadow site because they did not want to join the Union. Mr Boyd may well have been so informed by Mr Djukic but there is no evidence to justify a finding that Mr Djukic was so informed by Mr Casper.
Section 298SC(c)
287 The respondents submit that the Court may not find that s 298SC(c) has been contravened unless the relevant representation was intentionally false or intentionally misleading.
288 Whilst the wording of s 298SC is not identical to that employed in s 52 of the Trade Practices Act 1974 (Cth), there is a sufficient correspondence between the two to enable a conclusion to be drawn that it is unnecessary to establish an intent on the part of the alleged contravener to make a false or misleading misrepresentation (see Hornsby Building Information Centre Pty Limited v Sydney Building Information Centre Limited [1978] HCA 11; (1978) 140 CLR 216 at 228 and Brown v Jam Factory Pty Limited (1981) 53 FLR 340 at 349).
It must be acknowledged that the word ‘false’, when viewed in isolation, is a latently ambiguous one (see per Deane, Dawson and Gaudron JJ in Murphy v Farmer (‘Murphy’) [1988] HCA 31; (1988) 165 CLR 19 at 26). ‘False’ is not a precise adjective (per Brennan and Toohey JJ in Murphy at 22).
‘False’ can mean merely ‘untrue’ or ‘wrong’, or it can involve both subjective and objective elements and mean ‘purposely untrue’ (per Deane, Dawson and Gaudron JJ in Murphy at 26).
By a majority of three to two, the High Court in Murphy held that ‘false’ where used in s 229(1)(i) of the Customs Act 2001 (Cth) (‘the Customs Act’) meant ‘purposely untrue’. Section 229(1)(i) relevantly provided:
‘The following goods shall be forfeited to the Crown:
...
(i) all goods in respect of which an entry invoice declaration answer statement or representation which is false or wilfully misleading in any particular has been delivered made or produced ...’
Brennan and Toohey JJ, who were in the minority, considered the juxtaposition of the words ‘false’ and ‘wilfully misleading’ and the absence of any qualifying adjective for the former was a strong argument for the proposition that false meant no more than erroneous in fact.
The majority considered that, ‘false’ in s 229(1)(i) could also be read in congruence with, rather than in contrast to, the neighbouring phrase ‘wilfully misleading’ in which case it would have been an exercise in tautology to have inserted the word ‘wilfully’ before it.
In the result, the majority construed ‘false’ as meaning purposely untrue, for the reason that a finding that an entry for home consumption was false would result in the ‘draconian step of imposing automatic forfeiture as a penalty for "any" wrong "entry invoice declaration answer statement or representation" regardless of whether the wrong information was provided as the result of an innocent mistake or excusable ignorance’. It held that such a result should not be taken to have been intended by the legislature unless the relevant enactment distinctly so provided.
In Murphy, the respondent, Farmer, had been required to answer in writing certain questions on a customs form. The answer he gave to one of the questions was wrong, but not deliberately or intentionally so. The consequences of a finding of falsity would have resulted in the forfeiture of a Porsche motor vehicle, the subject of the entry, had it not been for the lodgement of a bond to secure the release of the vehicle.
In the case of a contravention of s 298SC(c), the Court has a discretion to impose a pecuniary penalty under s 298U(a). Unlike the Customs Act, the Act contains no provision for a default consequence such as automatic forfeiture of property in the event that a false or misleading representation is made.
In the context in which it is used, I am satisfied that ‘false’ means no more than erroneous in fact. Similarly, no element of intent is required under s 298SC before a representation can be found to have been misleading.
Section 298SC proscribes the making of representations which are false in the sense of being untrue and, what might be thought to be a lesser form of transgression, representations that are misleading.
289 An additional reason for reaching the above conclusion is that in s 4(7) of the Act, the legislature has drawn a clear distinction between provisions which concern matter that is ‘false or misleading’ and other provisions which concern matter that is ‘to the person’s knowledge false or misleading’ (compare, for example, s 298SC(c) and s 170WG(2) of the Act).
It is also significant to note the terms of s 298D(a), (b) and (c). These limitations on the application of Part XA and, accordingly, s 298SC are not cumulative. In the present case, the relevant conduct falls within s 298D(a) and/or (b). Accordingly, it was unnecessary to establish that the conduct, said to contravene s 298SC(c) was ‘carried out with a purpose or intent relating to a person’s membership or non-membership of an organisation’ for s 298SC(c) to apply to the conduct in question.
290 The respondents also submit that s 298SC(c) only applies where the relevant false or misleading misrepresentation about another person’s obligation to join an industrial association is made to that other person.
291 I am unable to so construe the language of s 298SC(c). Had the legislature intended such a limited operation, it might have provided:
‘A person must not make a false or misleading misrepresentation to another person about:
that person’s obligation to join an industrial association’
However it did not do so.
In my opinion s 298SC can be invoked where a representation is made to any person about ‘another person’s obligation to join an industrial association’.
Section 298S(2)
292 The applicant acknowledges that a partnership such as that of Hua Ping and Anthony Summers, trading as Ruse Linings, would not be eligible to join an industrial association, such as the first and/or second respondent, and accordingly, be an ‘eligible person’ within the meaning of s 298S(1) of the Act.
However, the applicant submits that the individual partners or, at least in the case of Ruse Linings, Mr Summers, would be an eligible person.
It seems clear to me that, whilst Mr Summers may have been an ‘eligible person’, nevertheless, there could be no ‘discriminatory action’ within the meaning of s 298S(1) in relation to him unless there was evidence that he had offered his services, as opposed to those of Ruse Linings, to, relevantly, Innovation Interiors.
There is no such evidence in the present case. It seems clear that in relation to Mr Summers, his services were simply not on offer. Rather, Ruse Linings, which was not an eligible person, offered its services on the basis that Mr Summers would be the person undertaking the performance of its contractual obligations.
293 Similar considerations would apply in respect of the partnerships of N & M Philipp and R & M M Philipp referred to at [68]. Barry Sindel was in a different position as he was a sole trader.
Alleged contraventions of s 298SC(c)
294 Adopting the same alphabetical identification as provided in paragraph [74] for the alleged contraventions:
(a) Mr Casper did make a representation on 19 January 2004 to the effect that in order to work on the Fairy Meadow site workers were obliged to join the first respondent and/or second respondent. Such a representation was false or misleading in that it derogated from the freedom of association for which the Act provided. See also s 209(2) of the Industrial Relations Act 1996 (NSW).
Such a representation was made to each of Norm Philipp, Reinhard Philipp, Barry Sindel and Norman Philipp Jnr. No such representation was made on 19 January 2004 to Anthony Summers as he did not attend the Fairy Meadow site until 21 January 2004.
Notwithstanding the applicant’s failure to prove that Mr Casper made the representation alleged to Mr Summers on 19 January 2004, I am satisfied that the applicant has established a contravention of s 298SC(c) by Mr Casper in respect of the making of the representation to each of Norm Philipp, Reinhard Philipp, Barry Sindel and Norman Philipp Jnr.
(b) The finding that Mr Lane said to Mr Suter on 17 February 2004 that the Wollongong site was ‘going to be a union site’, meaning thereby, one at which you couldn’t work if you didn’t have a Union membership ticket, does not support an alleged contravention of s 298SC(c) by Mr Lane for making a false or misleading misrepresentation to Mr Suter that each of Norm Philipp, Reinhard Philipp, Anthony Summers and Barry Sindel was obliged to join the first respondent and/or the second respondent in order to work on the Fairy Meadow site, the Wollongong site and any other site in the Wollongong area.
No mention was relevantly made of the Fairy Meadow site or ‘any other site in the Wollongong area’, nor was there any representation made to the effect that the Wollongong site was a Union site, with the consequence that, in order to work at such site, the relevant workers were obliged to join the first respondent and/or the second respondent.
(c) Mr Lane did make a representation on 18 February 2004 to Norm Philipp and Reinhard Philipp to the effect that each of them was obliged to join the first respondent and/or the second respondent in order to continue working on the Fairy Meadow site, or to work on the Wollongong site or any other site in Wollongong. Such a representation was false or misleading in that it derogated from the freedom of association for which the Act provided. See also s 209(2) of the Industrial Relations Act 1996 (NSW).
I am satisfied that the applicant has established a contravention of s 298SC(c) by Mr Lane in respect of the making of the representation.
(d) Mr Lane did make a representation on 18 February 2004 to Anthony Summers to the effect that he was obliged to join the first respondent and/or the second respondent in order to continue working on the Fairy Meadow site, or to work on the Wollongong site. Such a representation was false or misleading in that it derogated from the freedom of association for which the Act provided. See also s 209(2) of the Industrial Relations Act 1996 (NSW).
I am satisfied that the applicant has established a contravention of s 298SC(c) by Mr Lane in respect of the making of the representation.
(e) As a delegate, Mr Casper was an officer of the first respondent within the meaning of s 298B(1)(a) of the Act. Accordingly, action done by him as a delegate was taken to have been done by the first respondent also, in accordance with s 298B(2)(b) of the Act.
I am satisfied that by the action of Mr Casper referred to in paragraph (a) the first respondent contravened s 298SC(c) of the Act.
(f) The failure of the applicant to establish a contravention of s 298SC(c) of the Act by Mr Lane as alleged in paragraph (b) leads to the conclusion that there was no corresponding contravention of s 298SC(c) by the first respondent.
(g) Mr Lane was an officer of the first respondent within the meaning of s 298B(1)(b) of the Act. Accordingly, action done by him as an officer was taken to have been done by the first respondent in accordance with s 298B(2)(b) of the Act.
I am satisfied that by the action of Mr Lane referred to in paragraph (c) the first respondent contravened s 298SC(c) of the Act.
(h) Mr Lane was an officer of the first respondent within the meaning of s 298B(1)(b) of the Act. Accordingly, action done by him as an officer was taken to have been done by the first respondent in accordance with s 298B(2)(b) of the Act.
I am satisfied that by the action of Mr Lane referred to in paragraph (d) the first respondent contravened s 298SC(c) of the Act.
(i) As a delegate, Mr Casper was an officer of the second respondent within the meaning of s 298B(1)(a) of the Act. Accordingly, action done by him as a delegate was taken to have been done by the second respondent also, in accordance with s 298B(2)(b) of the Act.
I am satisfied that by the action of Mr Casper referred to in paragraph (a) the second respondent contravened s 298SC(c) of the Act.
(j) The failure of the applicant to establish a contravention of s 298SC(c) of the Act by Mr Lane as alleged in paragraph (b) leads to the conclusion that there was no corresponding contravention of s 298SC(c) by the second respondent.
(k) Mr Lane was an officer of the second respondent within the meaning of s 298B(1)(b) of the Act. Accordingly, action done by him as an officer was taken to have been done by the second respondent in accordance with s 298B(2)(b) of the Act.
I am satisfied that by the action of Mr Lane referred to in paragraph (c) the second respondent contravened s 298SC(c) of the Act.
(l) Mr Lane was an officer of the second respondent within the meaning of s 298B(1)(b) of the Act. Accordingly, action done by him as an officer was taken to have been done by the second respondent in accordance with s 298B(2)(b) of the Act.
I am satisfied that by the action of Mr Lane referred to in paragraph (d) the second respondent contravened s 298SC(c) of the Act.
Alleged contraventions of s 298S(2)(a)
295 Adopting the same alphabetical identification as provided in paragraph [74] for the alleged contraventions:
(m) As indicated above, none of Norm Philipp, Reinhard Philipp and Anthony Summers were eligible persons who offered their services to Innovation Interiors. They were each partners in firms which offered services, but such firms were not eligible persons within the meaning of s 298S(1) of the Act.
In relation to Norman Philipp Jnr, he may have been an eligible person, but he did not relevantly offer services to Innovation Interiors on or after 18 February 2004. His involvement in work at the Fairy Meadow site came to an end in January 2004 after he had executed work at the site as a subcontractor to Pro Finish Interiors.
Whilst it may be suggested that Mr Casper advised, encouraged or incited Mr Nenad Djukic and Innovation Interiors to refuse to make use of or to agree to make use of services offered by Barry Sindel because he was not a member of the first respondent and/or the second respondent, the fact is that I am not satisfied that Mr Casper said to Mr Djukic words to the effect that he did not want Norm Philipp, Reinhard Philipp, Anthony Summers and Barry Sindel on the Fairy Meadow site because they did not want to join the Union.
The evidence simply establishes that Mr Casper said to Mr Djukic words to the effect, ‘I don’t want these four people [referring to Norm Philipp, Reinhard Philipp, Anthony Summers and Barry Sindel] on site. I was abused and swore at’.
Such words do not constitute advice, encouragement or incitement to refuse to make use of or to agree to make use of services offered by the named persons or any of them because such persons or any of them were not members of the first respondent and/or the second respondent.
No relevant contravention of s 298S(2)(a) has been established.
(n) It follows from the findings in respect of paragraph (m) that no contravention of s 298S(2)(a) of the Act on the part of the first respondent has been established.
(o) It follows from the findings in respect of paragraph (m) that no contravention of s 298S(2)(a) of the Act on the part of the second respondent has been established.
Alleged contraventions of s 170NC
296 Adopting the same alphabetical identification as provided in paragraph [74] for the alleged contraventions:
(p) I do not consider that by answering counsel for the applicant’s question ‘And your purpose of saying the words that you said to Mr Suter or that I’ve suggested that you’ve said to Mr Suter in the meeting was to coerce him and Pro Finish into making an EBA with the CFMEU?’ with the words ‘A very minor part of the whole meeting’, Mr Lane was conceding that he had threatened to take industrial action or other action against Pro Finish Interiors with intent to coerce Pro Finish Interiors to agree to the making of an Enterprise Bargaining Agreement with the Union.
Mr Lane simply acknowledged that discussion with Mr Suter on 17 February 2004 about a possible EBA between the Union and Pro Finish Interiors constituted a minor part of the 17 February meeting.
It seems to me that at the meeting, the door was opened for further discussions in relation to an EBA which was more likely than not addressed at a further meeting between Messrs Repas and Suter from Pro Finish Interiors and Mr Lane on Friday 20 February 2004, when the draft EBA referred to at [218] was printed off.
The evidence does not disclose what conversation ensued about a possible EBA at that meeting.
Given the findings made by me at [240] – [241], no relevant contravention of s 170NC(1) of the Act, on the part of Mr Lane, has been established.
(q) It follows from the findings in respect of paragraph (p) that no contravention of s 170NC(1) of the Act on the part of the first respondent has been established.
(r) It follows from the findings in respect of paragraph (p) that no contravention of s 170NC(1) of the Act on the part of the second respondent has been established.
297 In the light of the foregoing, declarations should be made as follows:
(a) By making a representation on 19 January 2004 to each of Norm Philipp, Reinhard Philipp, Barry Sindel and Norman Philipp Jnr to the effect that in order to work on the Fairy Meadow site workers were obliged to join the first respondent and/or second respondent, the third respondent contravened s 298SC(c) of the Act.
(b) By making a representation on 18 February 2004 to Norm Philipp and Reinhard Philipp to the effect that in order to continue working on the Fairy Meadow site, or to work on the Wollongong site or any other site in Wollongong, each of Norm Philipp and Reinhard Philipp was obliged to join the first respondent and/or the second respondent, the fourth respondent contravened s 298SC(c) of the Act.
(c) By making a representation on Wednesday 18 February 2004 to Anthony Summers that in order to continue working on the Fairy Meadow site, or to work on the Wollongong site he was obliged to join the first respondent and/or the second respondent, the fourth respondent contravened s 298SC(c) of the Act.
(d) By the action of the third respondent referred to in (a) above, the first respondent contravened s 298SC(c) of the Act.
(e) By the action of the fourth respondent referred to in (b) above, the first respondent contravened s 298SC(c) of the Act.
(f) By the action of the fourth respondent referred to in (c) above, the first respondent contravened s 298SC(c) of the Act.
(g) By the action of the third respondent referred to in (a) above, the second respondent contravened s 298SC(c) of the Act.
(h) By the action of the fourth respondent referred to in (b) above, the second respondent contravened s 298SC(c) of the Act.
(i) By the action of the fourth respondent referred to in (c) above, the second respondent contravened s 298SC(c) of the Act.
298 No compensation orders were sought by the applicant under s 298U(c) of the Act for the benefit of Norm Philipp, the estate of the late Reinhard Philipp or Anthony Summers were it to be found that contraventions of s 298SC(c) of the Act occurred on 19 January 2004 and/or 18 February 2004. Accordingly, it is unnecessary to decide whether the losses sustained by them in February – March 2004 and referred to above were caused by the contraventions of s 298SC(c) which have been found to have occurred.
299 The parties are agreed that the precise form of the relief which should
be ordered in the circumstances should be the subject
of further submissions
after the parties have had an opportunity to consider the findings which have
been made in respect of the
alleged contraventions. Similarly, the parties have
agreed that the appropriate order as to costs should abide further submissions.
No doubt such submissions will have regard to s 347(1) of the Act and Re
Polites; Ex Parte The Hoyts Corporation Pty Limited [1991] HCA 31; (1991) 173 CLR 78 at
93.
Associate:
Dated: 9
February 2007
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Solicitor for the Respondents:
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Date of Judgment:
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URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/87.html