Cozadinos v Construction, Forestry, Mining and Energy Union [2012] FCA 46 (6 February 2012)

Last Updated: 7 February 2012

FEDERAL COURT OF AUSTRALIA

Cozadinos v Construction, Forestry, Mining and Energy Union [2012] FCA 46

Citation:		Cozadinos v Construction, Forestry, Mining and Energy Union [2012] FCA 46
Parties:		MICHELLE COZADINOS v CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION and JASON BELL
File number:		VID 692 of 2009
Judge:		GRAY J
Date of judgment:		6 February 2012
Catchwords:		INDUSTRIAL LAW – building and construction industry – threat with intent to coerce or apply undue pressure – whether threat made – whether intent should be inferred in absence of cross-examination on intent INDUSTRIAL LAW – building and construction industry – discrimination – whether alleged discriminatory statements made – whether discrimination to make a statement that can have no effect
Legislation:		Building and Construction Industry Improvement Act 2005 (Cth) ss 4(1), 44, 44(1), 45, 45(1), 45(1)(a)(ii), 45(1)(b)(ii), 45(4), 48(1), 49, 49(1)(b), 49(5), 49(6)(b), 57, 69, 69(1)(b), 69(3)(b), 70 Workplace Relations Act 1996 (Cth) ss 4(1), 298B, 298B(1), 328 Evidence Act 1995 (Cth) s 140 Federal Court of Australia Act 1976 (Cth) s 21(1) Acts Interpretation Act 1901 (Cth) s 15AA Constitution s 51(xx)
Cases cited:		Construction, Forestry, Mining and Energy Union v Alfred [2011] FCAFC 13, cited Bale v Mills [2011] NSWCA 226 (2011) 282 ALR 236, cited Browne v Dunn (1893) 6 R 67 Reid v Kerr (1974) 9 SASR 367, cited Helal v McConnell Dowell Constructors (Aust) Pty Ltd [2010] FCA 1462 (2010) 193 FCR 213, distinguished
Date of hearing:	2 – 3 May, 5 – 6 May 2011
Place:	Melbourne
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	100
Counsel for the applicant:	Mr R Maidment SC with Mr G Pauline
Solicitor for the applicant:	Norton Rose
Counsel for the respondents:	Mr E White
Solicitor for the respondents:	Slater & Gordon

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION	VID 692 of 2009

BETWEEN:	MICHELLE COZADINOS Applicant
AND:	CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION First Respondent JASON BELL Second Respondent

JUDGE:	GRAY J
DATE OF ORDER:	6 FEBRUARY 2012
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1. The application be dismissed.
2. The applicant pay the respondents’ costs of the proceeding.
   

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION	VID 692 of 2009

BETWEEN:	MICHELLE COZADINOS Applicant
AND:	CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION First Respondent JASON BELL Second Respondent

JUDGE:	GRAY J
DATE:	6 FEBRUARY 2012
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

The nature and history of the proceeding

1. The applicant in this proceeding, Michelle Cozadinos, alleges that the respondents have contravened ss 44(1) and 45(1) of the Building and Construction Industry Improvement Act 2005 (Cth) (“the BCII Act”). In each case, the contravention is alleged to have occurred by reason of the conduct of the second respondent, Jason Bell, which is taken to be the conduct of the first respondent, the Construction, Forestry, Mining and Energy Union (“the CFMEU”), pursuant to s 69 of the BCII Act, or for which the CFMEU is alleged to be otherwise vicariously liable. Ms Cozadinos seeks the imposition on both the CFMEU and Mr Bell of pecuniary penalties pursuant to s 49 of the BCII Act. She also seeks: an order pursuant to s 49(5) of the BCII Act that any penalty be paid into the Consolidated Revenue Fund of the Commonwealth of Australia; an order pursuant to s 49(1)(b) of the BCII Act requiring the respondent to pay compensation for damage alleged to have been suffered by Bendigo Scaffolding Pty Ltd (“Bendigo Scaffolding”) as a result of the first contravention; declarations that the alleged contraventions have occurred; and an order for costs.
2. The first contravention is alleged to have occurred on 23 June 2008, during a telephone conversation between Mr Bell and Robert Sawyer, an employee of Bendigo Scaffolding. Mr Bell is alleged to have threatened to take action to prevent Bendigo Scaffolding from starting work on a building site at Epsom (“the Epsom site”) with intent to coerce Bendigo Scaffolding to make a building agreement under Pt 8 of the Workplace Relations Act 1996 (Cth) (“the WR Act”) or with intent to apply undue pressure to Bendigo Scaffolding to agree to make such an agreement.
3. The second contravention is alleged to have occurred in three conversations on 24 June 2008 between Mr Bell and the site supervisor of the Epsom site and a fourth on 25 June 2008 with the project manager of the Epsom site project. The first two were said to have occurred when Mr Bell was at the Epsom site. It is alleged that, after seeing Mr Sawyer at that site, Mr Bell spoke to the supervisor in the supervisor’s office and again between that office and the exit from the site, and told the supervisor that Mr Sawyer would not be starting work and that the head contractor on the site must not employ Mr Sawyer. The third conversation is alleged to have occurred when Mr Bell telephoned the supervisor at about 7.30 that evening and said words to the same or similar effect. The reason allegedly given for these statements is that Mr Sawyer did not have a building agreement with the CFMEU and did not have employees who were members of the CFMEU. The fourth conversation is alleged to have occurred on 25 June 2008, when Mr Bell is alleged to have telephoned the project manager, criticising him for wanting to employ Mr Sawyer, alleged Mr Sawyer had not done the right thing in not having an agreement with the CFMEU and said that Mr Sawyer must not be employed. This conduct is alleged to have amounted to discrimination against Bendigo Scaffolding on the ground that it was proposed that the employment of Bendigo Scaffolding’s employees not be covered by an industrial instrument made with the CFMEU.
4. The issues in the proceeding are principally factual. The evidence contains numerous inconsistencies, some of them significant. The question is whether the allegations are made out on the evidence. In addition, there is an issue as to whether the making of a statement that an event is not to occur can amount to discrimination for the purposes of s 45(1) of the BCII Act, when the maker of the statement has no means of giving effect to the statement, or even of influencing another person to give effect to it.

The legislation

5. Section 44(1) of the BCII Act provides relevantly:

A person must not:

(a) take or threaten to take any action; ...

with intent to coerce another person, or with intent to apply undue pressure to another person, to agree...:

(c) to make...a building agreement under Part 8 of the Workplace Relations Act

6. By s 4(1) of the BCII Act, “building agreement” is defined to mean “an agreement that applies to building work (whether or not it also applies to other work)”. “Workplace Relations Act” is defined to mean the WR Act. The phrase “building work” is defined by reference to s 5, which contains an extensive definition, which it is unnecessary to set out for present purposes.
7. Section 45 of the BCII Act provides relevantly:

(1) A person (the first person) must not discriminate against another person (the second person) on the ground that:

(a) the employment of the second person’s building employees is covered, or is not covered, by:

(i) a particular kind of industrial instrument; or

(ii) an industrial instrument made with a particular person; ...

(b) it is proposed that the employment of the second person’s building employees be covered, or not be covered, by:

(i) a particular kind of industrial instrument; or

(ii) an industrial instrument made with a particular person; ...

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

(a) the industrial instrument referred to in that section is [a]...workplace agreement...; or

(b) the first person is an organisation...; or

(c) the second person is a constitutional corporation

8. Section 4(1) of the BCII Act contains a number of definitions of terms used in s 45. The phrase “industrial instrument” is defined to mean:

an award or agreement, however designated, that:

(a) is made under or recognised by an industrial law; and

(b) deals with the relationship between employers and employees, concerns the relationship between an employer and the employer’s employees, or provides for the prevention or settlement of a dispute between an employer and the employer’s employees.

The phrase “industrial law” is defined to mean a range of laws, including the WR Act. The phrase “workplace agreement” is said to have the meaning given by the WR Act. The word “organisation” also has the meaning given to it by the WR Act. A “constitutional corporation” is defined to mean a corporation to which s 51(xx) of the Constitution applies or a body corporate incorporated in a Territory.

9. Section 49 of the BCII Act provides relevantly:

(1) An appropriate court, on application by an eligible person, may make one or more of the following orders in relation to a person (the defendant) who has contravened a civil penalty provision:

(a) an order imposing a pecuniary penalty on the defendant;

(b) an order requiring the defendant to pay a specified amount to another person as compensation for damage suffered by the other person as a result of the contravention;

(c) any other order that the court considers appropriate.

(2) The maximum pecuniary penalty is:

(a) for a Grade A civil penalty provision―1,000 penalty units if the defendant is a body corporate and otherwise 200 penalty units; and

(b) for a Grade B civil penalty provision―100 penalty units if the defendant is a body corporate and otherwise 20 penalty units.

...

(5) A pecuniary penalty is payable to the Commonwealth, or to some other person if the court so directs. It may be recovered as a debt.

(6) Each of the following is an eligible person for the purposes of this section:

...

(b) an ABC Inspector

10. The effect of the definition of “appropriate court” in s 48(1) of the BCII Act is that, for the purposes of the contraventions alleged in the present case, this Court is an appropriate court. The word “person” is defined in s 48(1) to include an industrial association. The phrase “industrial association” is defined in s 4(1) of the BCII Act as having the same meaning as in Pt XA of the WR Act. By s 4(1) of the BCII Act, a “civil penalty provision” means either a Grade A civil penalty provision or a Grade B civil penalty provision. The definitions of “Grade A civil penalty provision” and “Grade B civil penalty provision” direct attention to the notes included in the various sections of the BCII Act. For present purposes it is enough to say that each of ss 44(1) and 45(1) of the BCII Act is designated as a Grade A civil penalty provision. The phrase “penalty unit” is defined in s 4(1) of the BCII Act as having the meaning given to it by s 4AA of the Crimes Act 1914 (Cth), which is currently $110. The phrase “ABC Inspector” is defined in s 4(1) of the BCII Act to mean an Australian Building and Construction Inspector referred to in s 57. Section 57 of the BCII Act makes provision for the appointment of persons as Australian Building and Construction Inspectors. The phrase “building association” is defined in s 4(1) of the BCII Act to mean:

an industrial association whose eligibility rules allow membership by at least one of the following groups:

(a) building employers;

(b) building employees;

(c) building contractors;

whether or not those rules also allow membership by other persons.

11. Section 69 of the BCII Act provides relevantly:

(1) For the purposes of this Act, the following conduct in relation to a building association is taken to be conduct of the building association:

...

(b) conduct of an officer or agent of the association acting in that capacity;

...

(3) In this section:

officer, in relation to a building association, includes:

(a) a delegate or other representative of the association; and

(b) an employee of the association.

12. Section 70 of the BCII Act provides:

In applying a provision of this Act that refers to:

(a) coercing a person to do a particular thing; or

(b) applying undue pressure to a person to do a particular thing; or

(c) encouraging a person to do a particular thing; or

(d) advising a person to do a particular thing; or

(e) inciting a person to do a particular thing; or

(f) engaging in conduct with the intention of doing any of the above;

it is not relevant whether or not that person is able, willing or eligible to do that particular thing.

13. At the time of the events the subject of this proceeding, Pt 8 of the WR Act contained provisions for the making of workplace agreements of various kinds. For present purposes, it is only necessary to refer to s 328 of the WR Act, which provided:

An employer may make an agreement (a union collective agreement) in writing with one or more organisations of employees if, when the agreement is made, each organisation:

(a) has at least one member whose employment in a single business (or part of a single business) of the employer will be subject to the agreement; and

(b) is entitled to represent the industrial interests of the member in relation to work that will be subject to the agreement.

14. It is also necessary to refer to some of the definitions found in s 4(1) of the WR Act. An “organisation” was defined to mean “an organisation registered under the Registration and Accountability of Organisations Schedule.” That schedule was Sch 1 to the WR Act. One element of the definition of “workplace agreement” was “a collective agreement”. In turn, one element of the definition of “collective agreement” was “a union collective agreement”, which was defined by reference to s 328 of the WR Act. The reference to Pt XA of the WR Act, in the definition of “industrial association” in the BCII Act appears to be a reference to provisions of the WR Act no longer in force at the time of the events the subject of this proceeding, but in force earlier. Section 298B of the WR Act contained a definition of “industrial association”, one element of which was “an association of employees and/or independent contractors...that is registered or recognised as such an association (however described) under an industrial law.” The definition of “industrial law” in the same section made it clear that the WR Act was an industrial law.
15. Section 140 of the Evidence Act 1995 (Cth) (“the Evidence Act”) provides:

(1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.

(2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:

(a) the nature of the cause of action or defence; and

(b) the nature of the subject-matter of the proceeding; and

(c) the gravity of the matters alleged.

16. The source of any specific power to make a declaration of right is s 21(1) of the Federal Court of Australia Act 1976 (Cth).

People and other entities

17. Ms Cozadinos is an Australian Building and Construction Inspector, appointed pursuant to s 57 of the BCII Act, and therefore an eligible person to seek the relief sought in this proceeding, by virtue of s 49(6)(b) of the BCII Act. The proceeding was commenced by another Australian Building and Construction Inspector, Stacey Shepherd, who ceased to be employed by the Australian Building and Construction Commissioner while the proceeding was pending. Ms Cozadinos replaced him as the applicant.
18. The CFMEU is an organisation, registered pursuant to the provisions now found in the Fair Work (Registered Organisations) Act 2009 (Cth). At the time when the events the subject of this proceeding occurred, those provisions were found in Sch 1 to the WR Act. The CFMEU is therefore a body corporate, and “industrial association” within the former definition in s 298B(1) of the WR Act and the definition of “industrial association” in s 4(1) of the BCII Act. In this proceeding, it is admitted that the CFMEU falls within the definition of “building association” in s 4(1) of the BCII Act. Its eligibility rules permit it to have as members building employees, and it is entitled to represent the industrial interests of such employees. Pursuant to s 69(1)(b) of the BCII Act, the conduct of an officer or agent of the CFMEU is taken to be the conduct of the CFMEU.
19. Mr Bell was employed by the CFMEU as an organiser. He therefore fell within the definition of “officer” in s 69(3)(b) of the BCII Act, and his conduct was the conduct of the CFMEU for the purposes of this proceeding. As an organiser, Mr Bell had responsibility for a large area in the north-west of Victoria, which included Bendigo and Ballarat and places north and west of those two cities. His job was to visit constructions sites within that area, to talk to employers and employees on those sites and to advocate that employers entered into certified agreements with the CFMEU (such an agreement was often referred to as an “EBA”, an abbreviation of “enterprise bargaining agreement”) and that employees became members of the CFMEU.
20. Becon Constructions (Aust.) Pty Ltd (“Becon”) was a construction company. (In the further amended statement of claim, Becon’s name is rendered erroneously as “Becon Constructions Pty Ltd”; all of the tendered documents emanating from Becon show its name as including “(AUST.)” or “(Aust)”). Becon was a trading corporation, and therefore a “constitutional corporation” for the purposes of the definition of that term in s 4(1) of the BCII Act. In 2008, it was the head contractor for a construction project at the Epsom site, at which it was building a shopping centre, including a supermarket and a number of other shops. Epsom is a suburb of Bendigo. Phillip Herkess was Becon’s Construction Manager, Geoffrey Bongartz was Becon’s Project Manager and Peter Vagg was Becon’s Site Foreman in relation to the Epsom site project. Greg Rankin was employed at the Epsom site, where he was the occupational health and safety representative, as well as the CFMEU’s shop steward.
21. Robert Sawyer has been a bricklayer for many years. He has carried on business through corporate entities. A corporate entity called Lay and Sawyer, and a corporate entity called Sawyer Bricklaying Pty Ltd both went into liquidation in or prior to 2001. Subsequently, Mr Sawyer traded through Bendigo Scaffolding, which carried on business as a bricklaying contractor and as a hirer of scaffolding. It was a trading corporation, and therefore a “constitutional corporation” for the purposes of the definition of that term in s 4(1) of the BCII Act. Mr Sawyer was not a director of Bendigo Scaffolding, but was designated as its manager. Bendigo Scaffolding’s sole director was Debra Sawyer, who is married to Mr Sawyer.
22. Wesley White is also a bricklayer of long standing. At the relevant time, he was carrying on business through a corporation called Wes White Bricklaying Pty Ltd, of which Mr White was a director.

The surrounding facts

23. The initial construction project at the Epsom site involved the building of what was to become a Safeway Supermarket. Subsequently, Becon was engaged to construct another building at the site, which was to become a Reject Shop. For the purposes of the project, Becon engaged a number of subcontractors to perform different tasks. In turn, the subcontractors employed persons with skills in various building trades, and labourers, to perform the necessary work. The walls were constructed of hollow concrete blocks, into the hollows of which concrete was poured after the blocks had been laid. The concrete blocks were laid by bricklayers.
24. At some time in May 2008, Mr Bongartz telephoned Mr Sawyer and asked if Mr Sawyer was prepared to submit a quotation for the Epsom site project. The two had met when Mr Sawyer was engaged on a previous project in about 1996. Following the conversation, Becon transmitted to Mr Sawyer documents providing drawings and specifications for the project and requesting quotations for the works. Mr Sawyer also called at the Epsom site some time in early June 2008 and collected further materials from Mr Vagg. The documents sent by Becon were addressed to “Bob Sawyer Bricklaying”. There was no corporate or other business entity conducted in that name.
25. On the letterhead of Bendigo Scaffolding, a quotation was prepared and dated 11 June 2008. The letterhead contained contact details, including a fax number. The quotation specified the works that were to be performed and the materials that were to be supplied. The total price was $92,460 plus $9,246 GST. Although at the foot of the quotation appears the typed name “Bob Sawyer” and the handwritten signature “B Sawyer”, the evidence is that Debra Sawyer signed the quotation. It was then sent to Becon, but the evidence does not reveal the method of transmission.
26. On Friday, 20 June 2008, Becon sent to the Bendigo Scaffolding fax number a five page document called a “SUBCONTRACT PURCHASE ORDER”. The document was addressed to “BOB SAWYER BRICKLAYING” and marked for the attention of “BOB SAWYER”. It required the subcontractor to execute and complete the works described in it at the Epsom site. Becon agreed to pay $91,160, plus $9,116 GST, a total of $100,276. The document contained nine paragraphs of specific conditions, including the following:
    3. PLEASE LIAISE WITH SITE FOREMAN TO, CONFIRM COLOUR SCHEDULES, SITE ATTENDANCE AND SCHEDULING OF THESE WORKS.
       

...

5. COMPLIANCE WITH ALL ASPECTS OF YOUR CERTIFIED WORKPLACE INDUSTRIAL INSTRUMENT.
   
6. ALL OH&S REQUIREMENTS IN ACCORDANCE WITH RELEVANT ACTS AND TO WORKCOVER’S SATISFACTION.
   
7. AS FROM FEBRUARY 2004 ALL WORKERS ARE TO CARRY PROOF OF COMPLETION OF A CONSTRUCTION INDUSTRY BASIC INDUCTION TRAINING (OR PROOF OF ENROLMENT INTO APPROPRIATE COURSE). PROOF TO BE IN THE FORM OF A ‘RED CARD’, EMPLOYEES UNABLE TO PROVIDE APPROPRIATE PROOF WILL NOT BE INDUCTED.
   
27. There were also two pages of printed conditions, including a condition numbered 6(b) which required that, prior to commencing work on the Epsom site, the subcontractor must provide Becon “an OH&S and quality assurance plan that is in form and substance acceptable to” Becon and required compliance with those plans during the execution of the works. The conditions also included a requirement in cl 7(b):

To the extent permitted by law or any applicable written government codes of practice, the Subcontractor must comply and must ensure that its employees, subcontractors and suppliers comply with all relevant industrial legislation, awards, industrial agreements, workplace and enterprise agreements and site agreements. The Subcontract Sum includes for all amounts which may be payable as a result of these matters.

28. The printed conditions were followed by a page which contained, so far as relevant to this case, the following:

BECON CONSTRUCTIONS COMMERCIAL INDUSTRY REQUIREMENTS

To ensure full industry compliance, we write to remind you of the requirements in regard to Occupational Health & Safety, WorkCover and adhering to your industry instrument relevant to the captioned project.

All companies undertaking works on the above project, whether contracted to Becon Constructions (Aust) Pty Ltd or contracted by a subcontractor undertaking tenancy fit-out works for others, are required to produce the following documents to the company.

The items required are:

TO BE SENT (FAXED) TO BECON SITE OFFICE

To be sent, not less than FIVE (5) working days prior to the commencement on site.

Should any items expire during this time, please forward updated paperwork to Becon Site Office.

1. Details of your Industrial Instrument covering your employees (for instance Award, EBA, AWA or Certified Workplace Agreement).

2. Copy of current public liability insurance.

3. Copy of current WorkCover worker’s compensation insurance.

4. Proof of payment for previous month in compliance with your Industrial Instrument obligations for superannuation, redundancy and long service leave (if applicable) for each employee.
   
5. Each employer is to provide current fund / scheme numbers for employee superannuation, redundancy and long service leave as applicable.
   

TO BE PRESENTED TO OH&S REPRESENTATIVE ON SITE

To be provided before or on arrival on site.

1. Competency certificates for Red Card and/or proof that course has been booked, Plant Operation, First Aid, OH&S, etc.
   

2. Confirmation of your company’s OH&S policy statement.

3. Copy of safe work procedures for all works to be undertaken on site.

4. Current log books for all plant and machinery to be used on site including electrical equipment tagged in accordance with appropriate code of practice. Operator should show appropriate licence.
   

5. Copy of current public liability insurance.

6. Copy of current WorkCover worker’s compensation insurance.

7. Details of your EMPLOYER superannuation registration number.

The documents then invited contact with Mr Vagg for confirmation or further information on the above requirements.

29. At some point, Mr Sawyer had a discussion with Mr Vagg about starting work. The evidence is not altogether clear, but it suggests that the conversation took place at the Epsom site, rather than by telephone. Mr Sawyer thought that he probably visited the Epsom site on 20 June 2008. If he did so, presumably his visit would have been in the afternoon, after he had received the sub-contract purchase order. It is possible that the visit was some time on Monday, 23 June 2008. It is not recorded in Mr Sawyer’s diary for either of those days, although he used his diary to record his attendances at various sites, as well as those of others who were performing work for Bendigo Scaffolding, often with references to the number of hours spent at a particular place by each person. No visit by Mr Sawyer to the Epsom site is recorded in Mr Vagg’s daily report for 23 June 2008, or in Mr Vagg’s diary for the same date. Whenever the conversation did occur, it involved Mr Vagg urging Mr Sawyer to begin work as soon as possible. Mr Vagg’s concern was to ensure the completion of the project as soon as practicable, and he was endeavouring to ensure that there was activity on the Epsom site.
30. In response to this urging, Mr Sawyer caused to be delivered to the Epsom site a load of concrete blocks. He had ordered these blocks previously, intending to use them in a construction project at a sports ground. Mr Sawyer was associated with the football club that used that sports ground. He regarded that construction job as a community project. He decided instead to use the blocks as the initial stock for the Epsom site project. Mr Sawyer was able to contact the supplier of the blocks and arrange for their delivery to the Epsom site. The probability is that this occurred on the afternoon of 23 June 2008. The invoice from the supplier of the blocks bears that date. Mr Vagg’s recollection was that the blocks were delivered late in the afternoon on that date, and there is an entry at the foot of his daily report for that date, reading “BRICKES [sic] CONCRETE BLOCKS ARRIVED TODAY.” (For reasons which are explained below, Mr Vagg’s daily reports are not necessarily an accurate record.)
31. Mr Sawyer’s evidence was that he was expecting to start work on the Epsom site on 24 or 25 June 2008. This would not have been easy. On 23 June 2008, Bendigo Scaffolding employed only Mr Sawyer himself as a bricklayer and two other employees doing a mix of general labouring and scaffolding. Mr Sawyer said he had spoken to two other bricklayers who had agreed to make themselves available to work on the Epsom site. There was a suggestion in the evidence that Debra Sawyer had intended to go to Melbourne on 24 June 2008, to obtain some of the documents that the conditions referred to in [26] and [28] above required to be produced before work commenced.
32. Mr Vagg’s evidence was that it was normal for a bricklaying subcontractor to start with two labourers on site. Their task was to clear a path from the place where the blocks were stored to the place where the bricklaying work would begin, to place some blocks in the latter area, along with other materials provided (sand and cement) and a mixer for the mortar. Mr Vagg also said that Becon had a strict policy about induction to the site, which included the provision by a subcontractor of all necessary documents. One thing he agreed was necessary was a signed sub-contract purchase order directed to the correct entity that was being engaged, which had been signed on behalf of that entity and returned to Becon. In other words, before Bendigo Scaffolding could begin work on the Epsom site, it would have been necessary for it to enter into a contract in which it was named as the subcontractor.
33. As it turned out, in circumstances which are explored in detail below, Mr Sawyer did not begin work on the Epsom site at all. Mr Vagg’s recollection was that the concrete blocks that had been delivered remained on site and were used by another bricklayer. Mr Sawyer’s evidence was that he visited the site on Friday, 27 June 2008, and removed the blocks from the site. This is consistent with an entry in Mr Vagg’s daily report for that day, which reads: “Brickes [sic] blocks picked up today about 4:00 pm.”

The first alleged contravention

34. The first contravention was alleged to have occurred in a conversation by telephone between Mr Bell and Mr Sawyer on Monday, 23 June 2008. It is common ground that telephone service provider records show that Mr Bell made three relevant telephone calls at around 6.00 pm on that day. The first was timed to begin at 17.50.36, and to last for three minutes and 21 seconds. It was to Mr Vagg. The second was timed to begin at 17.54.40 and to last for nine minutes and 36 seconds. It was to Mr Sawyer. The third was at 18.04.46 and lasted one minute and 35 seconds. It was to Mr Vagg. In the further amended statement of claim, particulars of the telephone call to Mr Sawyer are given in the following terms:

The substance of relevant parts of the conversation was as follows:

BELL: Well there’s some things we’ve got to get in order before you can start.

...

BELL: Well, you won’t be starting that job until we make sure that everything’s correct.

SAWYER: Well what do you call everything?

BELL: Well, you haven’t got an EBA.

SAWYER: I don’t need one.

BELL: Yes you do.

...

SAWYER: And what else?

BELL: Well all your guys will have to be covered.

SAWYER: Well they are all in Worksafe.

BELL: No, they’ll have to be in the union.

SAWYER: I don’t believe they do.

BELL: Well you won’t be starting there until they do.

35. Mr Sawyer’s evidence-in-chief about the conversation is recorded in the transcript as follows:

The person introduced himself as Jason Bell from the CFMEU. I said, “What can I do for you?” He said, “I believe you had been appointed the contractor on the Epsom Shopping Village.” I said, “That’s correct.” He said, “Well, before you are going to be starting that job you are going to have to get a few things in order.” I said, “Well, such as what?” He said, “Well, you’re not compliant with the schemes.” I said, “Well, I beg to differ; I am.”

There was some exchange about whether Mr Bell had specified what he said Mr Sawyer was not compliant with, and the evidence continued as follows:

And I said, “Well, I am complaint. [sic]” He said, “Plus you don’t have an EBA,” and I said, “well, I don’t have to,” and he said, “well, you will before you start on that job and none of you guys are in the union.” And I said, “Well, they don’t have to be in the union either.” And he said, “Well, you’re not starting that job till they are.” He then went on to say, “I think we should probably sit down tomorrow to have a coffee and discuss the matter.” I said, “Well, feel free to call,” and that was the end of the conversation.

36. In cross-examination, Mr Sawyer was asked how long the conversation was. He replied “Guessing, a minute or so.” He expressed surprise that the conversation lasted nearly 10 minutes. He agreed that it was a friendly conversation, and that Mr Bell was conversational in tone. Mr Sawyer conceded that Mr Bell could have asked him about what industrial instrument he worked under. He could not remember the exact wording, but repeated that Mr Bell had told him he would have to be compliant. He then said he did not believe he was asked what industrial instrument he was under. He said that he did not believe that Mr Bell had asked him whether he had an EBA. Mr Bell had told him he would have to have one. He then said he could not recall whether he was asked about an industrial instrument. He did not remember Mr Bell expressing a preference that he be under an EBA. He did not believe the word “preference” was ever used.
37. Mr Sawyer was then asked questions about whether Mr Bell discussed with him compliance with Cbus, Incolink and CoINVEST. Mr Sawyer maintained that Mr Bell did not mention these matters specifically, but simply told Mr Sawyer that he was not compliant. He agreed that, in accordance with the sub-contract purchase order, Becon required that he be up-to-date with Cbus, Incolink and CoINVEST and that he would not be allowed to work on the site if he were not up-to-date. Mr Sawyer resisted the suggestion that Mr Bell had made no reference to union membership in the conversation and the suggestion that Mr Bell did not say that he had to have an EBA with the union. He denied that he would have felt harassed if these things had been said. He accepted that he had agreed to have a cup of coffee with Mr Bell on the following day. He agreed that Mr Bell did not make any threat to do anything.
38. As to the phone calls from Mr Bell to Mr Vagg, one preceding and the other following the telephone call to Mr Sawyer, Mr Vagg could only recall one such conversation. He was unsure whether it had occurred on 23 or 24 June 2008. The page of Mr Vagg’s diary for 23 June is entirely blank. The page for 24 June contains four entries, two approximately two-thirds of the way down the page and the other two at the foot of the page. The former two are:

BOB SAWYER 0419 310 427 54484518

JASON BELL CALLED INTO JOB TODAY

The two at the foot of the page are:

GREG RANKIN ABOUT BRICKE [sic]

JASON BELL CALLED AGAIN OVER THE PHONE

39. The significance of the word “AGAIN” in the last of these entries is unclear. Mr Vagg said it could mean that he had seen Mr Bell that day. When asked about the reference to Greg Rankin, Mr Vagg said that Mr Rankin had telephoned him to tell him that Mr Bell might be calling him shortly.
40. Mr Vagg’s recollection of his conversation with Mr Bell was that Mr Bell sounded very aggressive, demanded to know why Mr Sawyer was on site and asserted that Mr Sawyer was not compliant. Mr Vagg found it difficult to say anything. He attempted to point out that Mr Sawyer had not yet been inducted onto the site, and had not actually started. Mr Bell said that Mr Sawyer owed money. Mr Vagg endeavoured to settle him down and Mr Bell continued to say that Mr Sawyer owed money. Mr Vagg suggested they talk about the issue at another time. In the course of the conversation, Mr Bell’s tone changed to a more relaxed one. According to Mr Vagg, Mr Bell said that unless Mr Sawyer had signed an EBA and his workers were union members, he would not be starting on the site. Mr Bell kept asking what Mr Sawyer was doing on the site. Mr Vagg kept protesting that he had not yet inducted Mr Sawyer to the site and did not know what Mr Sawyer’s paperwork was like at that stage. The call ended when Mr Vagg persuaded Mr Bell to discuss the matter on the following day. According to Mr Vagg, he then rang Mr Sawyer to see if he had received a phone call from Mr Bell. Mr Sawyer confirmed that he had. Mr Vagg could not remember what Mr Sawyer said in this phone conversation, but said that Mr Sawyer was concerned about proceeding further with the Epsom project. Mr Sawyer gave no evidence about this conversation. He said he could not remember having a telephone conversation with Mr Vagg on that evening, but he could have had one.
41. Mr Vagg’s evidence of his conversation with Mr Bell is more consistent with that being a conversation of more than three minutes than a conversation of around one and a half minutes. This suggests that the conversation is more likely to have taken place in the call Mr Bell made to Mr Vagg before the call to Mr Sawyer than in the second call to Mr Vagg, after the conversation with Mr Sawyer. Less than a minute elapsed between the end of Mr Bell’s first call to Mr Vagg and the call to Mr Sawyer, so it is unlikely that Mr Vagg would have been able to contact Mr Sawyer and have a conversation about anything significant between those two calls.
42. Mr Bell gave evidence that he had no recollection of any telephone conversation, either with Mr Sawyer or with Mr Vagg, on the evening of 23 June 2008. In the course of his work as an organiser for the CFMEU, he makes a large number of telephone calls. In his evidence-in-chief, he described the nature of his work and the way he went about it. He recognised that, in the region for which he was responsible, there were many construction sites at which there were employers without agreements with the CFMEU and many employees who were not members of the CFMEU. Mr Bell’s job was to try and persuade the employers to enter into agreements with the CFMEU, and to try and persuade the employees to join the CFMEU. He said that he would try and form a relationship with a subcontractor employer by sitting down and talking. He would not talk to an employer about union membership, because that was a matter for potential members only. If he could improve the conditions of employees at a site, he often found that those employees were more ready to become members of the CFMEU. In relation to a site like the Epsom site, Mr Bell would attempt to form a relationship with the head contractor by telephoning its head office to find out who was involved in the project. He would then begin talking to the site foreman and then to subcontractors. A lot of the discussion was with respect to health and safety, involving machinery and work systems. Some was about the sort of agreement that the subcontractor would have with the workforce. Mr Bell was aware of many sites where there were no agreements with the CFMEU and no members of the CFMEU, but was realistic about his lack of success in bringing about those things.
43. In relation to the specific allegations about the phone call with Mr Sawyer on 23 June 2008, Mr Bell denied that he would have said that Mr Sawyer had to have an EBA, because he did not say that to employers. He also denied that he would have said that all of Mr Sawyer’s employees would have to be members of the CFMEU, because he did not discuss union membership with employers.
44. Mr Bell was not cross-examined to the effect that his evidence about the way he normally operated was incorrect. The tenor of the cross-examination was to the effect that, on the particular occasion, Mr Bell departed from his usual practices when he was speaking to Mr Sawyer. Mr Bell did not think that he would have become aggressive on the telephone with Mr Vagg about the prospect of Mr Sawyer being employed on the Epsom site. He did not think that he would have become frustrated to the point of saying things that he didn’t intend to say. He said that, no matter how heated the conversation would get, he would not say “You must have an EBA”. In response to a question as to what steps were available to him to rectify the situation in which somebody was starting on a site who was not doing the right thing by their workforce, Mr Bell said:

At the end of the day, you can only go through conversation with management, maybe conversation with the subcontractor, and do your best there. If all that fails, well, time pretty much dictates what happens, and the project goes on like that. That job in Epsom, there were plenty of companies on that site that didn’t have agreements in place. I wasn’t happy about that. But that’s how it - - -

45. Mr Bell said that his normal method of operation would have been to speak with Mr Vagg and ask Mr Vagg to check that a subcontractor was compliant with industry funds, and if the subcontractor had some sort of industrial mechanism in place. He agreed that his preference was for an agreement with the CFMEU. He said that it was frustrating if management would not enter into an agreement with the CFMEU, but that was something that happened and continued to happen and that he could not put too much effort into one area. He agreed that it was possible that he could have become aggressive with Mr Vagg on the telephone and shouted at him. The fact that the conversation was late in the day, and the possibility that he had otherwise had a frustrating day might have caused him to raise his voice. He again denied that he said words to the effect of “No EBA, no union membership, no start”. Also in cross-examination, Mr Bell referred to acting “inside the guidelines of the law.” He denied that he said words to the effect of “No EBA, no union membership, no start.” He referred to training he had received as an official of the CFMEU, in relation to legislation. He continued:

And we know what we can say, what we can’t say, and what guidelines you should be following inside the law. And we’ve been drilled about that quite a fair bit over the years, and to look after my area for seven years, a regional area, to work inside those guidelines are [sic] hard. I will give it that. But I know, whether I’m talking to someone on the phone or face to face, I know the guidelines. And there’s a line in the sand, and you just can’t overstep it.

46. I do not reject the evidence of Mr Bell concerning his usual approach to his task. As well as not being the subject of cross-examination, that evidence is likely to be true. In the context of the BCII Act, it is probable that the CFMEU would have trained its organisers to conduct themselves in ways that would not bring them into contravention of the law, and cause the CFMEU to incur penalties as a consequence. I also accept Mr Bell’s evidence that he is resigned to carrying out his duties in an environment in which the construction sites for which he has responsibility are not likely to be highly unionised, and therefore not likely to involve workers whose terms and conditions of employment are determined by agreements made between the CFMEU and those employers. I accept that Mr Bell regards union membership as a matter that he should discuss only with employees, and not with employers. I also accept his evidence that the Epsom site was by no means fully unionised and that there were contractors engaged to perform works on that site employing workers whose terms and conditions of employment were determined otherwise than by agreement with the CFMEU.
47. It is obvious that Mr Bell’s duties included persuading employers to enter into agreements with the CFMEU where he could do so. Nothing in s 44 of the BCII Act prevents a union or its officials advocating that employers should enter into agreements with it, incorporating the standards of terms and conditions of employment it desired, for the protection of employees. Section 44 does not trespass upon freedom of speech in that respect, any more than it does so in respect of anyone who advocates that employers should have nothing to do with any union, and should determine the terms and conditions of their employees independently of those advocated by a union. Likewise, there is no prohibition on advocating membership, or non-membership, of a union. Section 44 of the BCII Act is specific as to the acts it prohibits, and those acts are only prohibited if done with one or other of the intents specified in it.
48. In trying to determine whether the content of Mr Bell’s telephone conversation with Mr Sawyer on the evening of 23 June 2008 contained the words alleged, it is also important to look at Mr Sawyer’s position.
49. Mr Bell gave evidence that he had heard about Mr Sawyer and a company previously controlled by Mr Sawyer, that Mr Sawyer had not always done the right thing by his workforce and he owed quite a few workers in the Bendigo area money in the past. He confirmed this evidence in cross-examination and added that some who had worked for Mr Sawyer in the past were still owed money. He said that he had heard that there was money owing to “industry funds” and that the hourly rate of employees was “never right”. In response to a question in cross-examination, Mr Bell agreed that he was concerned that Mr Sawyer had been offered a job on the Epsom site. He said that it was part of his job as an official of the CFMEU to be concerned. Mr Sawyer was cross-examined at some length about the insolvency of two corporate entities with which he had formerly been associated, and whether employees had not been paid their full entitlements, or had those entitlements paid on their behalf to a superannuation fund. His evidence about these matters was evasive. At times he denied underpayment, and asserted that all payments that had been due had been paid. At other times, he attempted to avoid answering questions. He agreed that in about 2001, his business had undergone an audit by the CFMEU, for the purpose of determining whether all entitlements had been paid. He regarded this audit as an unpleasant experience and said that his wife had also found it to be unpleasant. He agreed that he had called some of his former employees “union dogs” on an occasion when he had seen them at a hotel. Mr Sawyer was also cross-examined as to whether he had subsequently avoided taking jobs on sites on which there would be a union presence. Again, his evidence was evasive, but he did concede that he would not be comfortable “going back on union jobs.” He said this was because he was not comfortable with “harassment”.
50. Given Mr Bell’s concern about Mr Sawyer’s reputation as being an employer who did not pay all of the entitlements of his employees, it is not surprising that Mr Bell was motivated to telephone both Mr Sawyer and Mr Vagg on the evening of 23 June 2008. Mr Bell was entitled to make attempts to safeguard the interests of those who might be employed by Bendigo Scaffolding on the Epsom site. He was entitled to attempt to do so not just for the benefit of those employees, but to attempt to ensure that terms and conditions of employment of employees who would work on the Epsom site were generally of a standard that the CFMEU would regard as satisfactory, so that the interests of employees who were its members on the site would not be undermined. It was perfectly legitimate for Mr Bell to propose to Mr Sawyer that Bendigo Scaffolding enter into an agreement with the CFMEU pursuant to s 328 of the WR Act. It was perfectly legitimate for Mr Bell to point out to Mr Sawyer that such an agreement could only be made if Bendigo Scaffolding had at least one member of the CFMEU among its employees whose employment would be subject to the agreement. There could be no objection if Mr Bell had drawn to Mr Sawyer’s attention the effect of the conditions in Becon’s subcontract purchase order, to which I have referred in [26]-[28], including the requirements to provide to Becon not less than five working days prior to commencement on-site details of Bendigo Scaffolding’s industrial instrument covering its employees. It would be unexceptionable for Mr Bell to have told Mr Sawyer that Becon would not permit him to start work on the site unless he had complied with those requirements.
51. The question in this proceeding is whether Mr Bell went further than to raise matters of the kinds referred to in the preceding paragraph. The allegation is that he threatened to prevent Bendigo Scaffolding from starting work on the Epsom site, and that he did so with intent to coerce Bendigo Scaffolding to agree to make an agreement with the CFMEU, or alternatively with intent to apply undue pressure to Bendigo Scaffolding to make an agreement with the CFMEU.
52. There are two circumstances that tend strongly to make it unlikely that this allegation is made out. The first is the length of the telephone conversation between Mr Bell and Mr Sawyer. According to the telephone service provider records, to which I have referred in [34] above, the conversation lasted nine minutes and 36 seconds. This was clearly substantially longer than would have been necessary for the exchange of which Mr Sawyer gave evidence. As I have said in [36] above, Mr Sawyer was surprised that the conversation had lasted as long as it did. The second circumstance was the lack of hostility in the conversation. Even if it be accepted that Mr Bell was hostile when he spoke to Mr Vagg before he spoke to Mr Sawyer, Mr Sawyer’s evidence was that the tone of Mr Bell’s call to him was conversational. In the course of cross-examination, Mr Sawyer was asked, “At no time in that telephone conversation did Mr Bell make any threat to do anything, did he?” Mr Sawyer’s answer was, “No, not at all.” The conversation ended with Mr Bell inviting Mr Sawyer to have a cup of coffee with him the following day, to talk about the possibility of an agreement, and Mr Sawyer agreeing to this suggestion. The evidence is inconsistent with the notion that there was a threat.
53. After the conversation ended, Mr Sawyer and Debra Sawyer had a discussion. They decided that they were not going to continue their involvement with the job on the Epsom site.
54. Counsel for Ms Cozadinos relied on three documents in support of Ms Cozadinos’s case that Mr Sawyer and Debra Sawyer decided to relinquish the job at the Epsom site because of threatened action by the respondents. The first was a handwritten fax, dated 23 June 2008 (“the 23 June fax”), from Mr Sawyer to Mr Bongartz (incorrectly spelt as “BONGARD”). The fax began with the word “URGENT”, which was underlined. The text of the 23 June fax was:

RECEIVED A CALL FROM C.F.M.E.U AT APPROX 6pm TONIGHT STATING THAT I MUST HAVE A [sic] E.B.A IN PLACE PRIOR TO STARTING ON SITE. CAN YOU PLEASE CONFIRM IF THIS IS CORRECT. [sic]

This was followed by the word “Regards”, the words “Bob Sawyer”, a signature “B Sawyer” and Mr Sawyer’s mobile telephone number.

55. The second document is a page from Mr Sawyer’s diary for 23 June 2008, which shows an entry:

Phone call @ 6pm from Union Rep stating all employees must be in the union.

The third document is another fax message, this time typed, also dated 23 June 2008, addressed to “BECON CONSTRUCTIONS”, and marked “ATTENTION: Mr G Bongard [sic]” (“the 24 June fax”). The text of the message is:

Dear Geoffrey,

REGARDING: Epsom Safeway

Due to unforseen [sic] and unreasonable circumstances by a third party we have no choice but to withdraw our quotation for bricklaying works to the above project as of 11.15 am Tuesday 24th June 2008. We regret any inconvenience that has arisen from interference by the third party involved that has led to these actions

Regards

Bob Sawyer

Beside the words “Bob Sawyer” is a handwritten signature. The handwritten signature is different from the signature on the 23 June fax. It appears that one of the signatures was placed on one of the faxes by Debra Sawyer.

56. There is some importance attaching to the times when the 23 June fax and the 24 June fax were sent. The evidence of Mr Bongartz was that he received both of them while he was in the office of Becon at Hallam on Wednesday, 25 June 2008. According to Mr Bongartz, he received a phone call from Mr Bell at about mid-morning on 25 June 2008. On the same day, Mr Bongartz said he received a telephone call from Mr Sawyer saying that he wished to withdraw from the contract. After that telephone conversation, the 23 June fax arrived. Mr Bongartz said he also received the 24 June fax on 25 June 2008. He thought that the date shown in the fax header was wrong.
57. The originals of the 23 June fax and the 24 June fax (that is the two messages as printed by the fax machine in the Becon office) were not tendered in evidence. The documents tendered were photocopies of those two originals. In the course of his investigation, Mr Shepherd saw the originals, requested that he be supplied with copies, took away the copies and left the originals with Becon. At the time of the trial, the originals had not been located. This was sloppy investigation practice. The unavailability of the originals caused problems in determining the times at which the two faxes were sent, because part of each fax header was omitted in the copying process. As best can be determined from the copies that were tendered, the 23 June fax was sent on 23 June 2008 at 6.30 pm and the 24 June fax was sent on 24 June 2008 at 12.07 pm. There was no suggestion that any fax machine was not correctly calibrated to record the time accurately. Accordingly, I am satisfied that the faxes were sent at the times I have stated, one in the evening on Monday, 23 June 2008 and the other in the middle of the day on Tuesday, 24 June 2008. This finding is consistent with the evidence of Bob Sawyer and the evidence of Debra Sawyer. To the extent to which the evidence of Mr Bongartz is in conflict with that evidence, either his recollection is inaccurate, or there was some omission by staff at Becon to provide him with the faxes until well after they had been received.
58. The end result is that, within a short time after his telephone conversation with Mr Bell, Mr Sawyer hand-wrote and sent the 23 June fax, which contained an inquiry to which Mr Sawyer already knew the answer. According to his own evidence, Mr Sawyer had previously had a conversation with Mr Bongartz, in which he had asked Mr Bongartz if Bendigo Scaffolding had to enter into an agreement with the CFMEU. Mr Bongartz told him this was unnecessary. Mr Sawyer’s own evidence is that he told Mr Bell during the telephone conversation that he did not have to have an agreement with the CFMEU. In addition, although Mr Sawyer’s evidence was that Mr Bell had told him that it was necessary for him to enter into an agreement with the CFMEU, and that all of the employees working on the Epsom site would have to be members of the CFMEU, Mr Sawyer chose to refer only to one of those subjects in the 23 June fax. Oddly, when he made his entry in his diary about the conversation, he chose to refer only to the other, namely the proposition that all employees would have to be in the union.
59. The 24 June fax was dated 23 June 2008, but was not sent until the following day. The evidence concerning the preparation of that was that Mr Sawyer hand-wrote a draft, and Debra Sawyer typed the message, probably late at night after she had finished her other chores. The mention of a specific time from which the withdrawal of the quotation was to be operative, 11.15 am on 24 June 2008, is something of a mystery. Perhaps the intention was to send the fax earlier on 24 June 2008 than it was in fact sent. Why this was not done is unclear, as the decision had clearly been made on the evening of 23 June 2008 that Bendigo Scaffolding would withdraw its quotation.
60. The order of events is unclear from the evidence. The best picture I can build up from the evidence is that Mr Sawyer wrote and either he or Debra Sawyer sent the 23 June fax soon after the end of Mr Sawyer’s telephone conversation with Mr Bell. In the course of the evening (Debra Sawyer said that it was after the family had eaten the evening meal), Mr Sawyer and Debra Sawyer had a discussion and decided to withdraw from the Epsom site job. They made that decision without waiting for a reply to the 23 June fax. Mr Sawyer could not remember whether there was any reply at all. This suggests that they were prepared to withdraw irrespective of any definitive answer to the question in the 23 June fax. Either late that night (according to Debra Sawyer) or the following morning (as Mr Sawyer’s evidence tended to suggest, and as the nomination of 11.15 am on 24 June 2008 suggests) Mr Sawyer hand-wrote and Debra Sawyer typed the 24 June fax. The 24 June fax was sent shortly after midday on 24 June 2008.
61. The evidence makes it difficult to ascertain a precise reason, or precise reasons, for the withdrawal of Bendigo Scaffolding from the Epsom site job. In his evidence-in-chief, Mr Sawyer was asked why he decided to withdraw. His answer was “I withdrew from the project because I didn’t want any further harassment or any arguments and felt it better at that stage that I just move on to another job.” Also in his evidence-in-chief, when he spoke about his discussion with Debra Sawyer, he said, “we both decided that we didn’t need to go through this harassment anymore or ever again, and it was a simple matter and I thought the easiest way would be to withdraw from the job and that would be the end of the matter.” This evidence must be viewed in the light of Mr Sawyer’s antipathy to unions, and his reluctance to take on a job in which there would be union involvement, because of his previous experiences, to which I have referred in [49] above. In cross-examination, Mr Sawyer was pressed to concede that his previous experience and his antipathy to unions was the reason for his withdrawal, and that the 23 June fax was a contrived attempt to create a reason that would justify late withdrawal from the job without jeopardising Mr Sawyer’s relationship with Becon. Mr Sawyer would not make these concessions. There is significant circumstantial evidence that would justify the second of them, particularly the fact that Mr Sawyer already knew the answer to the question in the 23 June fax, and that he and Debra Sawyer did not await a response to that question before making a decision to withdraw from the job. The specification in the 23 June fax of only one of the two aspects that Mr Sawyer said were important features of his conversation with Mr Bell, and the separate recording in his diary of the other of those two aspects, are also difficult to explain if both features of the conversation were truly important to Mr Sawyer.
62. Debra Sawyer gave evidence that, following the telephone conversation between Mr Bell and Mr Sawyer, Mr Sawyer indicated to her that it looked as though they would have to have an EBA to do the job, and asked “did we want to go down that path?” When she was asked about the discussion with Mr Sawyer that evening, she said, “We just decided that we thought it wasn’t going to be worth doing it, so we just wouldn’t do the job.” Debra Sawyer was not asked directly for her reasons for making or participating in the decision to withdraw, either in chief or in cross-examination. As she was the sole director of Bendigo Scaffolding, hers was the mind of the company in law, although she may have deferred to Mr Sawyer’s view about what should be done.
63. In the end, Ms Cozadinos’s case as to the alleged contravention of s 44 of the BCII Act by Mr Bell in his telephone conversation with Mr Sawyer on the evening of 23 June 2008 does not derive great support from the actions of Mr Sawyer in the aftermath of that conversation. In many respects, those actions were equivocal. Significantly, however, they are consistent with either Mr Bell threatening action in that phone conversation and with Mr Bell simply advocating that Bendigo Scaffolding enter into an agreement with the CFMEU. Having regard to his past experience, Mr Sawyer would have been likely to withdraw from the Epsom site job simply because it had become absolutely clear to him that the CFMEU would be attempting to ensure that the interests of his employees were protected, if possible by means of an agreement between Bendigo Scaffolding and the CFMEU.
64. In seeking to determine whether the telephone conversation between Mr Bell and Mr Sawyer on 23 June 2008 involved a contravention of s 44 of the BCII Act, the effect of s 140 of the Evidence Act is to require me to decide on the balance of probabilities, taking into account the nature of the proceeding and the gravity of what is alleged. I must therefore bear in mind that the proceeding is one in which penalties are sought against the respondents and the allegations against Mr Bell are of serious conduct by him. On the evidence in this case, I cannot be satisfied that those allegations are made out. I am not prepared to find that Mr Bell departed from his usual practice in relation to conversations with employers about the terms and conditions of employment of their employees. He was well aware that he should not make threats of consequences to employers if they did not make agreements with the CFMEU. In the circumstances, it is likely that Mr Bell drew to Mr Sawyer’s attention the requirements of Becon, and expressed his preference for the relevant one of those requirements to be satisfied by an agreement with the CFMEU. Mr Sawyer may have interpreted such a statement as a stipulation that Bendigo Scaffolding had to enter into an agreement with the CFMEU. It is possible that Mr Bell drew attention to the need to have a member of the CFMEU employed by Bendigo Scaffolding if such an agreement were to be entered into. It is possible, although less likely, that Mr Sawyer would have interpreted such a statement as being a demand that all his employees must be members of the CFMEU. None of this would have amounted to a threat by Mr Bell that any action would be taken. On the evidence, I am unable to find that it is more probable than not that such a threat was made.
65. Even if that conclusion should be wrong, the making of a threat of action by Mr Bell would not itself amount to a contravention of s 44 of the BCII Act. A crucial element of the requirements of that section is that the person making the threat must have either intent to coerce, or intent to apply undue pressure, to the object of the threat to make, vary, terminate or extend an agreement. Ms Cozadinos pleaded intent to coerce and intent to apply undue pressure as alternatives.
66. In Construction, Forestry, Mining and Energy Union v Alfred [2011] FCAFC 13 at [12], the Full Court said:

The meaning of the phrase “intent to coerce” in this statutory setting has become settled (see Finance Sector Union of Australia v Commonwealth Bank of Australia [2000] FCA 1468; (2000) 106 FCR 16; 106 IR 158 per Gyles J at [18]-[38]; National Union of Workers v Qenos Pty Ltd [2001] FCA 178; (2001) 108 FCR 90; 106 IR 373 per Weinberg J at [128]; Seven Network (Operations) Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2001] FCA 456; (2001) 109 FCR 378; 106 IR 404 (Seven Network) per Merkel J at [38]-[43]; Williams v Construction, Forestry, Mining and Energy Union [2009] FCA 223; (2009) 179 IR 441 (Williams) per Jessup J at [105]). The relevant principles were distilled by Merkel J in Seven Network in the following terms (at [41]):

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

Intent to apply undue pressure seems to require a lesser effect on free choice than intent to coerce, but must at least require that there be an intention to limit the choice of the person the subject of the threat by means that can be regarded as illegitimate.

67. The onus of proof of one or other of the specific intents referred to in s 44(1) of the BCII Act lay with Ms Cozadinos in the present case. I can find no provision of the BCII Act that operates to cast on the person against whom a specific intent is alleged the onus of disproving that intent. Nor is there any such provision in the Evidence Act. In the amended statement of claim, there were particulars given of the alternative intents pleaded. The particulars were:

The intent can be inferred from the making of the Threat alleged because the Threat was unlawful in that Bell and the CFMEU had no legal right to prevent Bendigo [Scaffolding] from entering the Site or working on the Site because they were not parties to the contract and had no authority from Becon to prevent Bendigo [Scaffolding] from entering the Site or working on the Site.

Further or in the alternative, the intent can be inferred from the making of the Threat alleged because the Threat was illegitimate because Bell and the CFMEU were strangers to the commercial and contractual relationship between Bendigo [Scaffolding] and Becon and had no legal right to prevent Bendigo [Scaffolding] from entering the Site or working on the Site and had no authority from Becon to prevent Bendigo [Scaffolding] from entering the Site or working on the Site.

Further or in the alternative the existence of the intent can be inferred from the following further facts:

(a) On 24 June 2008 in Vagg’s office at the Site Bell and Vagg had a conversation, the substance of which is that Bell told Vagg that unless he (Sawyer) and his blokes are union members and he (Sawyer) is signed up to an EBA, they won’t be starting.

(b) On 24 June 2008 near the western exit of the Site Bell and Vagg had another conversation, the substance of which is that Bell told Vagg that he (Bell) had an understanding with Phil Herkess between the two of them that anyone employed on this job is to be signed up to an EBA and union members.

(c) On 24 June at approximately 7.30pm Bell telephoned Vagg and had a conversation, the substance of which is that Bell was shouting and said the brickie you have on the job is not starting, he’s got no paperwork, not union and he is not working on the job, the arrangement with Phil was that if he has not got an EBA or union, he’s not on the job, no EBA, no union, Sawyer will not be starting on the job.

(d) On 25 June 2008 Bell telephoned Geoffrey Bongartz and had a conversation, the substance of which is that Bell said you are a fucking idiot for wanting to employ Sawyer. Sawyer has not done the right thing by having an EBA and he owes money to a lot of people, I know you have had dealings with him in the past but Becon must not employ Bob Sawyer.

The first two paragraphs of these particulars might fall foul of the statutory irrelevance of the question whether or not a person is eligible to do a particular thing, mandated by s 70 of the BCII Act. It seems to follow from that section that the eligibility of Bendigo Scaffolding to work on the Epsom site, or to be engaged by Becon to work on the Epsom site, must be disregarded. That question was not argued. The particulars in the third paragraph are the same allegations as those made in respect of the contravention of s 45(1) of the BCII Act. For reasons that I have given below, I am not able to find that the specific conversations alleged occurred.

68. More importantly, Mr Bell gave evidence. He was cross-examined by senior counsel for Ms Cozadinos. He was not asked any question concerning intent. The only submission that was made was to the same effect as the particulars referred to in [67] above, that the existence of intent (which one was not specified) could be inferred from the circumstances, and from what Mr Bell is alleged to have said in other conversations. In Bale v Mills [2011] NSWCA 226 (2011) 282 ALR 236 at [42]- [48], the New South Wales Court of Appeal discussed the effect of the rule in Browne v Dunn (1893) 6 R 67 and the propriety of making adverse findings against a witness who has not been confronted squarely in cross-examination with the matters the subject of findings sought. At [44], the court quoted with approval the following passage from the judgment of Wells J in Reid v Kerr (1974) 9 SASR 367 at 374:

It has always seemed to me that if some kind of imputation is to be made against a witness, then, at some stage – ultimately – the precise nature of that imputation should be made clear to the witness so that he is given an opportunity to meet it and, if he can, to explain it or destroy it ... I am well aware that there are more ways of taking a fort than by frontal attack, but I hold it to be a fundamental principle that, when all arts and devices of cross-examination have been exhausted for the purpose of testing whether a particular witness merits adverse criticism, then, at some stage, and in some manner, he should be given the opportunity of meeting the implication and answering it.

When senior counsel for Ms Cozadinos has had the opportunity to address the question of intent directly in cross-examination, and has not taken that opportunity, I ought not to draw any inference against Mr Bell with respect to his intent.

69. Ms Cozadinos has failed to establish any contravention of s 44(1) of the BCII Act.

The alleged discrimination

70. The contravention of s 45(1) of the BCII Act was pleaded as having been constituted by four conversations. The first two were said to have occurred at the Epsom site on the afternoon of 24 June 2008, after Mr Bell had seen Mr Sawyer on the Epsom site. The first of those conversations was alleged to have taken place in Mr Vagg’s office. Mr Bell is alleged to have told Mr Vagg that unless Mr Sawyer “and his blokes are union members and he is signed up to an EBA, they won’t be starting.” The second conversation was alleged to have taken place near the western exit of the Epsom site. Mr Bell is alleged to have told Mr Vagg that he had an understanding with Mr Herkess that anyone employed on the Epsom site was to be signed up to an EBA and union members. The third conversation is alleged to have taken place at approximately 7.30 pm on 24 June 2008, when Mr Bell telephoned Mr Vagg. During the conversation, Mr Bell was alleged to have been shouting and to have said:

(a) the brickie you have on the job is not starting, he’s got no paperwork, not union and he is not working on the job;

(b) the arrangement with Phil was that if he has not got an EBA or union, he’s not on the job;

(c) no EBA, no union, Sawyer will not be starting on the job.

71. The fourth conversation was to have occurred on the following day, 25 June 2008, when Mr Bell telephoned Mr Bongartz. Mr Bell is alleged to have said:

(a) you are a fucking idiot for wanting to employ Sawyer;

(b) Sawyer has not done the right thing by having an EBA and he owes money to a lot of people;

(c) I know you have had dealings with him in the past but Becon must not employ Bob Sawyer.

72. These conversations were alleged to have constituted discrimination by Mr Bell against Bendigo Scaffolding on the ground that the employment of Bendigo Scaffolding’s building employees was not covered by an industrial instrument made with a particular person, the CFMEU, in contravention of s 45(1)(a)(ii) of the BCII Act, or on the ground that it was proposed that the employment of Bendigo Scaffolding’s building employees not be covered by an industrial instrument made with a particular person, the CFMEU, in contravention of s 45(1)(b)(ii) of the BCII Act.
73. Mr Vagg’s evidence as to the first conversation was that Mr Sawyer was in his office and they were having a conversation about the Epsom site job. Through the window, Mr Vagg could see Mr Bell talking to Mr Rankin and the CFMEU’s shop steward from another site. Mr Sawyer left the office. Mr Vagg saw Mr Bell glare at Mr Sawyer and then walk towards him. Although Mr Vagg could not see them talking, he could hear a muffled conversation taking place outside his office. When it finished, Mr Bell and the other two persons he had been with entered the office. After greetings, Mr Bell asked “Who was that?” after being told it was Mr Sawyer, Mr Bell said to Mr Vagg that unless Mr Sawyer had an EBA and his workers were signed up union members, he would not be starting. Mr Vagg protested that this was not right, that Mr Bell knew that, that it was against the law, that anyone could work on a job, and no-one had to have an EBA. Mr Bell again said unless they had an EBA and were signed up they would not be starting.
74. The four persons then left Mr Vagg’s office and walked towards the western exit of the site. This was when the second conversation was alleged to have occurred, close to the western exit. Mr Bell said that there had been an agreement with Mr Herkess that an EBA and union membership was necessary. Mr Vagg again protested, saying that Mr Bell knew that was not right, that they knew that Mr Herkess would not have done that and that it was not necessary to have an EBA to start on the job. Mr Bell is alleged to have repeated that that was the agreement that they had made with Mr Herkess. He is alleged to have said “No EBA, no start.”
75. Neither Mr Rankin nor the shop steward from the other site was called to give evidence. No reason was given by either side for the failure to call them. There was no suggestion that Ms Cozadinos had access to statements by them and had elected not to call them because their evidence would not have been favourable to her case. The question whether Ms Cozadinos had a duty of fairness analogous to that of a prosecutor in a criminal trial, requiring the calling of all eyewitnesses to an incident, without selecting them on the basis of the favourability of their evidence to the prosecution case, was not addressed.
76. In his evidence, Mr Vagg was not clear as to whether these two conversations on the site took place on 23 or 24 June 2008. He was inclined to think that it was on 23 June, and that the telephone conversation alleged to have constituted part of the contravention of s 45(1) of the BCII Act took place in the evening on the same day. Mr Vagg’s daily diary for 23 June 2008 contained no entry at all. On 24 June, there were the four entries to which I have referred in [38] above. Notwithstanding that these entries indicated that the events of which Mr Vagg gave evidence took place on 24 June, he was still inclined to think that they had taken place on the preceding day and that he had entered them in the diary for the wrong day.
77. Each day, Mr Vagg completed a daily report. This contained a record of employees on the Epsom site, the number of hours they had worked, and the activities that had been accomplished. It contained a record of the subcontractors who had been on site, the number of men, the number of hours and the activities they had been engaged in. It also recorded suppliers and materials they had supplied. Finally, there was a section headed “REMARKS - VISITORS – DELAY”. These reports were filled out in the office on the Epsom site. Subsequently, they were sent in bundles to the Becon Head Office, along with invoices for processing and payment. Mr Vagg said he did not always manage to complete a day’s daily report by the end of that day, and sometimes added things on the following day. In Mr Vagg’s daily report for 24 June 2008, there is an entry in the first line of the last section that reads “JASON BELL CALLED IN ABOUT 2.30 PM”. At the time when Mr Vagg was first interviewed by an inspector appointed under the BCII Act with respect to the alleged conversations, that was the only entry in that section of the daily report for that day. The daily report was tendered by counsel for Ms Cozadinos in that form. Subsequently, Mr Vagg could not remember when, he added a further entry two lines below, reading “Bob Sawyer Bricklayer”. These words appear in a later copy of the report, tendered by counsel for the CFMEU and Mr Bell.
78. It is clear, and it is accepted by counsel for Ms Cozadinos, that Mr Bell was not on the Epsom site on 23 June 2008. Records of calls made from his mobile telephone on that day show him to have been a considerable distance from Bendigo. Those records do show that Mr Bell was at or near the Epsom site on the afternoon of 24 June 2008. Mr Bell accepted in his evidence that he was at the Epsom site on that afternoon. Mr Sawyer gave evidence that he visited the Epsom site only on three occasions, none of which was 24 June 2008. Indeed, having withdrawn the Bendigo Scaffolding quotation by means of the 24 June fax, sent shortly after midday on that day, Mr Sawyer had no reason to go to the Epsom site that afternoon. It was not until the Friday of that week that he collected the concrete blocks that had been delivered on the afternoon of 23 June or earlier. Further, both Mr Sawyer and Mr Bell gave evidence that neither had ever spoken to the other except by telephone. Neither had even seen the other until they both attended at the Court for the trial of this proceeding. It follows that Mr Vagg’s recollection of the events prior to his first conversation with Mr Bell in the site office, to which I have referred in [73]-[74] above, was incorrect. Mr Sawyer was not in the site office talking to Mr Vagg. Mr Bell did not confront Mr Sawyer after he had left the office. There was no conversation between them. It is therefore very unlikely that Mr Bell asked, “Who was that?” after coming into Mr Vagg’s office. Mr Vagg refused to concede that he might have been wrong about the presence of Mr Sawyer. He became more adamant, and increasingly strident, when pressed about the accuracy of his version of the events. He was not able to explain why he had made the subsequent alteration to his daily report. He conceded that the conversations he recalled were the kind of thing that he had been instructed to record in his daily reports, but was unable to explain why he had not made any specific reference to them.
79. Mr Vagg’s recollection, or reconstruction, that the telephone conversation he had with Mr Bell occurred on the evening after the conversations at the Epsom site is also proved incorrect by the telephone records. As I have said in [34] above, the telephone records show two calls by Mr Bell to Mr Vagg, one before and the other after Mr Bell’s telephone call to Mr Sawyer on the evening of 23 June 2008. The diary entry at the foot of the page of Mr Vagg’s diary for 24 June 2008 is incorrect. Mr Vagg could not recall why he had used the word “AGAIN” in that diary entry, unless it was to signify that he had seen Mr Bell earlier in the day. Mr Vagg had not seen Mr Bell earlier in the day on which he had the telephone conversation with him. Mr Vagg could only remember one telephone conversation during an evening. I have summarised the evidence about that conversation in [38]-[40] above.
80. Mr Bongartz gave evidence of a telephone call he received from Mr Bell on the morning of 25 June 2008. The records of Mr Bell’s telephone calls did not disclose that he made any such call, but Mr Bongartz was not cross-examined to the effect that the call did not occur. According to the evidence of Mr Bongartz, Mr Bell became louder, more aggressive and more abusive as the call proceeded. Mr Bongartz tried asking him to calm down, and tried to talk over him to do so, but Mr Bell continued to talk. Mr Bell asked why Mr Bongartz was employing Bob Sawyer. He said that Mr Sawyer owed a lot of money to a lot of people, and did not have an enterprise bargain agreement. Mr Bell referred to an agreement between Becon, through Mr Herkess, and the CFMEU as to EBAs. Mr Bongartz said that Mr Bell swore at him and told him he was “a fucking idiot”. Being unable to calm Mr Bell, Mr Bongartz terminated the conversation by saying “I’ll see what I can do” and hanging up.
81. Mr Bongartz also said that he received a phone call from Mr Sawyer on the same morning, before Mr Bongartz saw the fax message sent on the evening of 23 June 2008. Mr Sawyer could not remember any conversation with Mr Bongartz after the withdrawal of Bendigo Scaffolding’s quotation. It is unlikely that Mr Sawyer would have made any such call on 25 June 2008, to tell Mr Bongartz that he had withdrawn, as the withdrawal had been effected by the sending of the 24 June fax on the previous day.
82. In cross-examination, Mr Bongartz agreed that Mr Bell complained to him about Becon engaging Bob Sawyer, asserted that Bob Sawyer owed money to people, complained that Bob Sawyer didn’t have an agreement with his workforce, and said that Mr Herkess had an agreement with the CFMEU or Mr Bell that subcontractors would have an agreement with their workforce. When asked whether, effectively this was the extent of the conversation, he replied, “In a nutshell; yes.”
83. Mr Bell conceded that he was at the Epsom site on the afternoon of 24 June 2008. He did so on the basis that the telephone records showed that he was in the area. He had no recollection of any conversation on the Epsom site on that occasion. He denied saying that Mr Sawyer and his employees must be union members, and that Mr Sawyer must be signed up to an EBA. He denied saying that, unless Mr Sawyer and his employees were union members, they would not be starting. He denied saying that, unless Mr Sawyer was signed up to an EBA, he would not be starting. He did so on the basis of his usual practices and his knowledge of the boundaries separating what he could say from what he could not say. He could not recall mentioning to Mr Vagg any conversation with Mr Herkess. Mr Bell said he had had a conversation with Mr Herkess approximately six months before the project started. Mr Herkess had said that he would try and ensure that contractors on his projects had some sort of agreement in place. Mr Bell said he did not mention to Mr Herkess the question of union membership.
84. The cross-examination of Mr Bell was to the effect that, because of what he had heard about Mr Sawyer, he would have been troubled. Counsel for Ms Cozadinos invited him to give evidence as to what he would have done usually in such a case. Mr Bell said that he would have spoken to someone in management who was about to employ a subcontractor he believed was not doing the right thing by the subcontractor’s workforce. He would have a discussion with that management person. From time to time he would ring the subcontractor himself. He denied that he would have become frustrated to the point of saying things that he did not particularly intend to say. Mr Bell said he had a relationship with Mr Vagg, and would invite Mr Vagg to check the subcontractor’s status with industry funds and see whether the subcontractor had some sort of industrial mechanism in place. It was put to him that he would ask whether the subcontractor had an EBA. He said he would not use the term “EBA”, but would ask if they had some sort of agreement. He conceded that an EBA would be his preference, because that is what he was paid to do. Mr Bell said that it was frustrating when management would not assist, but that he would not press the matter. He conceded that it was possible that he had spoken aggressively to Mr Vagg. He said it may have been the evening of a frustrating day and the conversation may have ended a little bit heated, with raised voices. He denied that he would use words to the effect of “No EBA, no union membership, no start”.
85. I am not able to find on the balance of probabilities, having regard to the penal nature of the proceeding and the gravity of the conduct alleged, that Mr Bell said to Mr Vagg words to the effect that Mr Sawyer would have to have an EBA, that his employees would have to be union members, that they would not be allowed to start on the site if these requirements were not met, and that there was an agreement with Mr Herkess that all subcontractors had to have EBAs and union membership. Mr Vagg’s reconstruction of the events of the afternoon of 24 June 2008 is obviously flawed. If there were conversations between him and Mr Bell on that day, they did not take place in the circumstances recounted by Mr Vagg. Mr Sawyer was not on the site, not in Mr Vagg’s office and not talking about the Epsom site project, because he had already withdrawn Bendigo Scaffolding’s quotation, and 24 June 2008 was not one of the days on which he attended at the Epsom site. He therefore did not have any form of confrontation with Mr Bell. Mr Bell therefore did not ask Mr Vagg, “Who was that?” Although there is no evidence to this effect, it is probable that Mr Bell did not know that Mr Sawyer had withdrawn Bendigo Scaffolding’s quote earlier that day. It is therefore possible that he did speak to Mr Vagg about Mr Sawyer. I am not prepared to reject Mr Bell’s evidence that his usual practice was not to say things of the kind alleged, and that he did not depart from his usual practice on that day. I am not prepared to accept Mr Vagg’s evidence of the content of the conversations, particularly when it is given in the context of the clearly false recollection Mr Vagg had of the circumstances in which the conversations occurred and his subsequent falsification of his daily report, apparently to make it consistent with his reconstruction.
86. For reasons that I have already given, again I cannot find on the balance of probabilities that Mr Bell said words to the effect of those alleged against him in the telephone conversation with Mr Vagg on the evening of 23 June 2008.
87. Mr Bell could not remember any phone call to Mr Bongartz on 25 June 2008. He conceded that, if he came across someone who was not looking after their workforce, and owed a lot of money around town, he probably would call someone “a fucking idiot” for employing that person. In cross-examination, Mr Bell said that when he was dealing with a case where he believed a subcontractor was not doing the right thing by his workforce, his first port of call would be to management of the company that was about to employ him. Mr Bell disagreed that he would have been trying to persuade the management of Becon not to permit Mr Sawyer, through a corporate entity, to work on the Epsom project. He indicated that on the Epsom project there were a number of subcontractors who didn’t have agreements in place and said, “that is something I definitely would not say.” He denied that he would have singled out Mr Sawyer for special treatment, saying that he would have had hundreds of other similar concerns around the state at the same time. He said that he always tried to deal with those situations inside the guidelines of the law. He denied that frustrations ever took him outside the law. He denied that on the particular occasion frustrations got the better of him and caused him to say “No EBA, no union membership, no start”.
88. Once again, having regard to the penal nature of the proceeding, and to the gravity of the conduct alleged, I am not able to be satisfied on the balance of probabilities that this element of Ms Cozadinos’s case is made out. There must be a real doubt as to whether such a conversation ever took place. Mr Bongartz was clearly mistaken about receiving a telephone call from Mr Sawyer on the morning of 25 June 2008, when Mr Sawyer had no occasion to ring him. The absence of any record of a telephone call from Mr Bell to Mr Bongartz suggests that Mr Bongartz may have also been mistaken about receiving a call from Mr Bell on that morning. It is true that, at that time, Mr Bell may not have known about the withdrawal of Bendigo Scaffolding’s quotation (although there is no evidence as to when he found out about that withdrawal), so he might still have been seeking to engage management of Becon in discussions about whether it was appropriate to engage Mr Sawyer. If he did make a telephone call, particularly having regard to my acceptance of his evidence about his general method of operation (in the absence of challenge to that evidence), and Mr Bongartz’s ready acceptance of the propositions put to him in cross-examination, I am not satisfied on the balance of probabilities that Mr Bell said words to the effect that Mr Sawyer would not be allowed to start unless he had an EBA and his employees were members of the CFMEU.
89. Even if I had been satisfied that Mr Bell did tell Mr Vagg in the telephone conversation on the evening of 23 June 2008, in two conversations on the Epsom site on 24 June 2008, and Mr Bongartz in a telephone conversation on 25 June 2008, that Mr Sawyer would not be allowed to start on the Epsom site without an EBA and union membership of his employees, it is still necessary to consider whether those statements, in the circumstances in which they were made, amounted to discrimination against Bendigo Scaffolding, within the meaning of s 45(1) of the BCII Act. The word “discriminate” used in that subsection is not the subject of any definition in the BCII Act. Counsel for Ms Cozadinos relied on Helal v McConnell Dowell Constructors (Aust) Pty Ltd [2010] FCA 1462 (2010) 193 FCR 213 at [24], where Ryan J said that, in the context of s 45(1) of the BCII Act, there is nothing to suggest that the term “discriminate” should not be allowed its full and ordinary meaning. His Honour rejected an argument that would restrict the scope of the term “discriminate” to conduct targeted against a specific identifiable person. That statement was made in the context of a case in which summary dismissal was sought of an application in which it was alleged that a construction contractor had engaged a subcontractor to perform part of a construction project. The subcontractor in turn had engaged another party to provide labour. It was alleged that the head contractor had discriminated against the labour provider by terminating its agreement with the subcontractor. The construction contractor sought summary dismissal of the proceeding on the basis that it could not have discriminated against the labour provider, with which it had no contractual or other relationship. It was in this context that Ryan J resorted to the dictionary. His Honour was not purporting to define the word “discriminate”, as it is used in s 45(1) of the BCII Act, exhaustively.
90. The present case involves an issue different from that in McConnell Dowell, not only by reason of the fact that the judgment in this case is a final judgment, determining the issues, whereas the judgment in McConnell Dowell was an interlocutory judgment, in which the task of the Court was to determine whether there was a reasonable prospect of success. In the present case, it was not argued that the respondents could not have discriminated against Bendigo Scaffolding because there was no direct relationship between the respondents and Bendigo Scaffolding. Rather, there is an issue as to whether whatever was said on the afternoon of 24 June 2008 and the morning of 25 June 2008 could amount to discrimination for the purposes of s 45(1) of the BCII Act. The issue is whether it is possible to discriminate against a person, within the meaning of that provision, by the uttering of words that are incapable of producing any effect.
91. The Macquarie Dictionary defines “discriminate” as an intransitive verb as meaning:

1. to make a distinction, as in favour of or against a person or thing: to discriminate against a minority.

2. to note or observe a difference; distinguish accurately: to discriminate between things.

92. As a transitive verb, the Macquarie Dictionary defines “discriminate” as:

4. to make or constitute a distinction in or between; differentiate: to discriminate one thing from another.

5. to note or distinguish as different.

Similarly, the Oxford English Dictionary defines the verb “discriminate” relevantly as follows:

1. trans. To make or constitute a difference in or between; to distinguish, differentiate.

...

2. To distinguish with the mind or intellect; to perceive, observe, or note the difference in or between.

...

3.

a. intr. or absol. To make a distinction; to perceive or note the difference (between things); to exercise discernment...

b. to discriminate against: to make an adverse distinction with regard to; to distinguish unfavourably from others. With indirect pass.

93. In an appropriate context, “discriminate” can mean no more than to distinguish one thing from another, or to express a preference for one thing over another. I discriminate between types of music, or types of food, when I say that I prefer one to the other. If s 45(1) of the BCII Act were to make discrimination of this kind subject to a penalty, it would be a gross derogation of the right of free speech. Any person ought to be able to express an opinion that the employment of building employees ought to be on terms and conditions derived from a particular kind of instrument or other source. Only if s 45(1) could not reasonably be construed without such an intrusion into freedom of speech should it be construed as comprehending that intrusion. Section 15AA of the Acts Interpretation Act 1901 (Cth) requires the Court to prefer a construction that would promote the purpose or object underlying an Act to a construction that would not promote that purpose or object. The purpose or object underlying the BCII Act has much more to do with protecting people from suffering harm by way of discrimination than with preventing advocacy of particular forms of the regulation of the terms and conditions of employment of employees in the Building and Construction Industry. There is plenty of scope for the operation of s 45(1) of the BCII Act if “discriminate against” is construed as referring to actions that inflict consequences upon the protected person. It is unnecessary and undesirable to extend the operation of the provision to words that are not capable of producing any consequence.
94. Even if Mr Bell had told Mr Vagg and Mr Bongartz that Bendigo Scaffolding would not be starting unless it had an agreement with the CFMEU and its employees were members of the CFMEU, it is difficult to see how that would amount to discrimination against Bendigo Scaffolding, for the purposes of s 45(1) of the BCII Act. At the times when the alleged conversations between Mr Bell and Mr Vagg took place at the Epsom site, and when the alleged telephone conversation between Mr Bell and Mr Bongartz took place, Bendigo Scaffolding had already withdrawn its quotation. There is no possibility that anything said by Mr Bell at those times would produce adverse consequences for Bendigo Scaffolding. This was not the case at the time of the telephone conversation between Mr Bell and Mr Vagg on the evening of 23 June 2008, but it was always very clear that Becon was not going to accede to any demand of Mr Bell not to employ Bendigo Scaffolding.
95. When I asked senior counsel for Ms Cozadinos how it was suggested that any assertion that Bendigo Scaffolding would not be starting work on the Epsom site would be made good, his response was “union muscle”. Union muscle is entirely dependent on a union having sufficient members at a workplace willing to take industrial action to bring about a result desired by the union. On any view of the evidence in the present case, the CFMEU would have been entirely unable to call upon such muscle on the Epsom site. Even if the Bendigo Scaffolding quotation had not been withdrawn, I am of the view that the allegation of discrimination would not have been made out. Mr Bell’s evidence of the difficulties he faced in persuading employees to become members of the CFMEU, and of the prevalence on the Epsom site of subcontractors without agreements with the CFMEU, make it clear that there was no possibility of the exercise of “union muscle”. The practicality of actual consequences being visited upon Bendigo Scaffolding, as a result of anything said by Mr Bell, are relevant to the question whether the respondents discriminated against Bendigo Scaffolding. Section 70 of the BCII Act does not make irrelevant to discrimination under s 45(1) the reality of practical consequences.
96. For these reasons, no contravention of s 45(1) of the BCII Act is established.

Compensation

97. I have concluded that there was no contravention of s 44 of the BCII Act on the part of either of the respondents. No occasion therefore arises to consider the amount of any compensation that might have been applicable had such a contravention occurred. If there had been a contravention, and I had concluded that the withdrawal of Bendigo Scaffolding’s quotation was caused by that contravention, the calculation of the amount of compensation would have been no easy task. For reasons that were not apparent to me, counsel for Ms Cozadinos refrained from asking Mr Sawyer what his estimate of likely profit was when he prepared the Bendigo Scaffolding quotation for the Epsom site. Instead, Ms Cozadinos’s calculation of Bendigo Scaffolding’s loss was done by reference to the performance of the work, and the profit made, by Wes White Bricklaying. Ms Cozadinos called as an expert witness an accountant who had examined documents obtained from Wes White Bricklaying and had attempted to make a calculation of profit. There were difficult issues, as to whether Bendigo Scaffolding would have incurred certain expenses that Wes White Bricklaying incurred, and as to whether an allowance should be made for so much of the work as was performed by Mr White himself. There was also a question whether Bendigo Scaffolding would have been offered the opportunity to do the extra work, for which Wes White Bricklaying was subsequently engaged, in building the Reject Shop extension at the Epsom site. The result was a claim for $29,526.69.
98. One of the difficulties is that it is not known how many employees Bendigo Scaffolding would have engaged to perform work at the Epsom site, whether Bendigo Scaffolding would have done the work more or less efficiently than Wes White Bricklaying, and whether Bendigo Scaffolding would have encountered some of the difficulties to which Mr White referred in his evidence. There would also be an issue as to whether Bendigo Scaffolding took reasonable steps to mitigate its loss, by seeking other work. That issue is complicated by the fact that Mr Sawyer was performing work at the local sports ground for his football club. It is not clear whether he, or Bendigo Scaffolding was charging for that work and, if so, whether it was charging on the basis of recouping costs, or of making a profit.
99. The respondents’ case was simple. Mr Sawyer had his accountant do a calculation of the hourly cost of Bendigo Scaffolding employing a person. When that hourly cost was multiplied by the number of man-hours that it took Wes White Bricklaying to perform the work at the Epsom site (excluding the Reject Shop work), the result was that Bendigo Scaffolding would have made a loss if it had performed the job. I do not expect that Mr Sawyer would have calculated his quote on the basis that performance of the work would have resulted in a loss but, as I have said, he was not asked to give any evidence about expected profit.

Conclusion

100. Ms Cozadinos has failed to prove her claim in any respect. The application must be dismissed. In accordance with the usual principle, that costs follow the event, Ms Cozadinos should be ordered to pay the respondents’ costs of the proceeding.

I certify that the preceding one hundred (100) numbered paragraphs are a true copy of the reasons for judgment herein of the Honourable Justice Gray.

Associate:
Dated: 6 February 2012