Construction Forestry Mining & Energy Union v Hamberger [2003] FCAFC 38 (10 March 2003)

Last Updated: 10 March 2003

FEDERAL COURT OF AUSTRALIA

Construction Forestry Mining & Energy Union v Hamberger [2003] FCAFC 38

INDUSTRIAL LAW - whether findings by trial judge should be set aside on appeal - whether forced removal of a worker from a worksite was sufficient to constitute injury to them in their employment - whether the judge sought to discriminate between financial and non-financial members for the purposes of s 298L(1) of the Act - whether an industrial association can be found to have acted in deliberate disregard and defiance of the provisions of Part XA of the Act because it does not lead evidence to the contrary

Workplace Relations Act 1996 (Cth) ss 298B, 298K, 298L, 298P, 298U, Part XA

Construction, Forestry, Mining & Energy Union v Employment Advocate [2001] FCA 1442

Construction, Forestry, Mining and Energy Union v Coal & Allied Operations Pty Ltd (No 2) [1999] FCA 1714; (1999) 94 IR 231 cited

Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v DMG Industries Pty Ltd [1999] FCA 735; (1999) 89 IR 360 cited

The Age Company Ltd v Automotive, Food, Metal, Engineering, Printing and Kindred Industries Union [2000] FCA 1757 cited

Seven Network Operations Ltd v Communications, Electrical, Electronic, Energy Information, Postal, Plumbing and Allied Services Union of Australia [2001] FCA 672 cited Employment Advocate v National Union of Workers [2000] FCA 710; [2000] 98 IR 302 cited

State Railway Authority v Earthline Constructions [1999] HCA 3; (1999) 160 ALR 588 referred to

Devries v Australia National Railways Commission (1993) 173 CLR 472 mentioned

Rosenberg v Percival [2001] HCA 18; (2001) 205 CLR 434 mentioned

CONSTRUCTION FORESTRY MINING AND ENERGY UNION and MICHAEL RAVBAR v JONATHON HAMBERGER, THE EMPLOYMENT ADVOCATE

No Q 83 of 2002

SPENDER, DRUMMOND, MARSHALL JJ

BRISBANE

10 MARCH 2003

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q 83 OF 2002

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	CONSTRUCTION FORESTRY MINING AND ENERGY UNION FIRST APPELLANT MICHAEL RAVBAR SECOND APPELLANT
AND:	JONATHON HAMBERGER, THE EMPLOYMENT ADVOCATE RESPONDENT
JUDGES:	SPENDER, DRUMMOND & MARSHALL JJ
DATE OF ORDER:	10 MARCH 2003
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

1. The appeal by the CFMEU be allowed in part.

2. The order of the primary judge of 9 May 2002 in respect of the CFMEU be varied by substituting $3,000 for $7,500.

3. The appeal by the second appellant is dismissed.

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

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q83 OF 2002

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	CONSTRUCTION FORESTRY MINING AND ENERGY UNION FIRST APPELLANT MICHAEL RAVBAR SECOND APPELLANT
AND:	JONATHON HAMBERGER, THE EMPLOYMENT ADVOCATE RESPONDENT

JUDGES:	SPENDER, DRUMMOND & MARSHALL JJ
DATE:	10 MARCH 2003
PLACE:	BRISBANE

REASONS FOR JUDGMENT

THE COURT

1 This matter is an appeal from the judgment and orders of Cooper J given on 9 May 2002 ("the 2002 judgment") and the judgment and declarations of 22 December 2000 ("the 2000 judgment"). His Honour found that the first and second appellants (as well as other parties who were respondents to the primary decision but are not involved in the appeal) had contravened s 298P(3) of the Workplace Relations Act 1996 (Cth) ("the Act"). The primary judge ordered that a penalty of $7,500 be imposed on the first appellant, the Construction Forestry Mining and Energy Union ("the CFMEU") for the contravention the Act on 29 January and 26 February 1999. Further, that a penalty of $750 be imposed on the second appellant, Michael Ravbar ("Mr Ravbar") for the contravention of the Act on 29 January 1999. His Honour imposed penalties on the other respondents in the primary action who are not parties to this appeal.

2 The appeal centres on findings by the primary judge that the first and second appellants attempted to get an employer to remove an employee, Michael Albert Leroy ("Leroy") because he had refused to join an industrial association.

Background

3 The Employment Advocate, the respondent to these appeals, instituted the proceeding heard by the primary judge. The five respondents to the proceedings were the CFMEU (the first appellant); the Builders Labourers Federation ("the BLF"); Jamie McHugh, a member of the CFMEU and the BLF, and an organiser employed by the BLF; Michael Ravbar (the second appellant), a member of and site organiser of the CFMEU; and Darrel Kersey, a member of and state organiser for the CFMEU).

4 The Employment Advocate alleged that each of the five respondents engaged in conduct in contravention of s 298P(3) of the Act. Consequently, he sought the imposition of civil penalties under s298U. The Employment Advocate alleged that at the Oakey Power Station construction site ("the site") on 20 and 29 January and 26 February 1999, the respondents threatened industrial action against Lillicorp No 1 Pty Ltd ("Lillicorp").

5 Lillicorp had contracted with McConnell Dowell Constructions (Australia) Pty Ltd ("McConnell Dowell") to perform formwork, concreting, reinforcing and concrete ancillary works at the site. Lillicorp also contracted with Candid Hire Pty Ltd ("Candid Hire"), who provided labour services to Lillicorp to enable it to perform its work under the contract with McConnell Dowell. It was alleged that threats of industrial action were put to Roger Lilley who managed and controlled both Lillicorp and Candid Hire, to coerce Lillicorp and/or Candid Hire to remove an employee of Candid Hire, Michael Leroy (a foreman in steel fixing at the site) because he was not a member of either union and refused to join either union.

Legislative context

6 The alleged contravention pleaded against the respondents was that the conduct on 20 January 1999, 29 January 1999 and 26 February 1999 constituted a threat of industrial action within the meaning of s 298B(1) of the Act. Section 298B(1) of the Act provides:

"298B(1) In this Part, unless the contrary intention appears:

industrial action means:

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

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

(ii) the work is performed, or the practice is adopted, in connection with an industrial dispute; or

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

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

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

but does not include:

(e) action by employees that is authorised or agreed to by the employer of the employees; or

(f) action by an employer that is authorised or agreed to by or on behalf of employees of the employer; or

(g) action by an employee if:

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

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

7 It is then alleged that the conduct constituted a contravention of s 298P(3)(a) and (b) of the Act. Section 298P(3) provides:

"298P(3) An industrial association, or an officer or member of an industrial association, must not:

(a) advise, encourage or incite an employer, or

(b) organise or take, or threaten to organise or take, industrial action against an employer with intent to coerce the employer;

to take action in relation to a person that would, if taken, contravene section 298K."

8 Section 298K(1) of the Act provides:

"298K(1) An employer must not, for a prohibited reason, or for reasons that include a prohibited reason, do or threaten to do any of the following:

(a) dismiss an employee;

(b) injure an employee in his or her employment;

(c) alter the position of an employee to the employee's prejudice;

(d) refuse to employ another person;

(e) discriminate against another person in the terms or conditions on which the employer offers to employ the other person."

9 The prohibited reason is that contained in s 298L(1)(b), namely a refusal or failure of Leroy to join an industrial association.

The 2000 judgment

Findings of fact by the primary judge

10 The conduct which formed the basis of the claims allegedly occurred on 20 and 29 January 1999 and 26 February 1999. There were factual disputes in the case, particularly as to who said what. The primary judge made the following findings in respect of each of those dates:

20 JANUARY 1999

11 On the morning of 20 January 1999, a site meeting was held between Kersey, McHugh, Lilley and a Gary Parkinson (the project manager employed by McConnell Dowell. Lilley knew Kersey from previous dealings but did not know McHugh.

12 At the time of the meeting of 20 January, there was a demarcation dispute between the Australian Worker's Union and the first appellant as to industrial representation at the site.

13 At par 24 of the 2000 judgment, the primary judge accepted the evidence given by Lilley as to statements which Kersey and McHugh made to Lilley at the two meetings. His Honour accepted that the statements were made in an attempt to persuade Lilley to pay the union fees of all the employees of Candid Hire to be used by Lillicorp.

29 JANUARY 1999

14 With respect to the events of 29 January 1999 the primary judge expressed his findings, as follows:

"[25] On 29 January 1999, McHugh, Kersey and Ravbar were present on site. McHugh says the purpose of the visit was `to speak with workers about membership matters'. Again McHugh entered the site using his permit to enter which he held as an official of the CFMEU. He spoke with Leroy and told him that he owed the BLF $985 in outstanding membership fees. Leroy said words to the effect `I'm not joining your Union and you can talk to my solicitor.'

[26] There is substantial agreement between McHugh and Leroy as to what occurred between them. I accept Leroy as an honest witness and I accept his evidence that the following conversation occurred between him and McHugh :

`McHugh said words to the effect: "We are not after the money all we are after is for you to get back in the union."

I said words to the effect: "Look I have already told you this is against my principles and you won't get me to join the union."

McHugh said words to the effect: "Well I have to go and see Roger to get him to remove you from the site."

I said words to the effect: "Well go ahead matey see if I care".'

[27] McHugh deposed he stated words to the effect :

`Look mate, whether you like it or not, you are a member of ours and its on the computer.

He said words to the effect:

"Show me where".

I said words to the effect:

"I can't show you right now for fucks sake, but I am telling you it is there."

He said words to the effect:

"Well I want to see some proof."

I said words to the effect:

"We would have a card in the office in Brisbane which you would have signed."

He said words to the effect:

"Well show it to me."

I said words to the effect:

"I will get the fucking card and show it to you."

He said words to the effect:

"Good, get the card and I will give it to my Solicitor."

He then said words to the effect:

"Fuck your Union. You are nothing but a pack of communists, and I don't believe in your Union. I left my country to get away from you bastards."

I said words to the effect:

"I don't give a fuck what your thoughts of us are. You don't mind reaping the wages and conditions we negotiate to have provided on site."

I then pointed to the sticker on my helmet which said "Scab". I said words to the effect :

"The people who accept and receive benefits and conditions we provide are known to us as scabs."

He said words to the effect:

"I am not paying any money. It is against my principles."

I said words to the effect:

"Look mate, I am not asking you to pay the full amount. I am asking you to pay $220.00 and I will talk to my office to see if I can get the rest of the debt cleared because we do have the right to pursue two terms from you."'

[28] In cross-examination, Leroy agreed that McHugh had made such a statement but he would not agree that the further statement about getting Leroy back in the union was not made. Further, it was not suggested to Leroy that McHugh did not use the words `Well I have to go and see Roger to get him to remove you from the site.' The fact that McHugh admits that he then sought the removal of Leroy from the site by Lilley persuades me that the evidence of Leroy is correct and should be accepted."

15 Subsequent to this exchange, on the same day, a meeting was held in the site office. In respect of that meeting, the primary judge accepted the evidence of Lilley the manager and controller of Candid Hire who employed Leroy, finding at par 31:

"[31] Lilley gave the following evidence of his conversation with Ravbar in the site office :

`12. At that point the four of us went to the McConnell Dowell office. Gary Parkinson and Jim, one of the engineers, were there when the following exchange occurred:

Ravbar said: "We want Leroy removed from the site."

I said: "Why?"

Ravbar said: "Because he doesn't want to join the union."

I said: "I was of the understanding that it was not compulsory for the men to join the union."

Ravbar said: "It is if they want to work on this site."

I said: "Are you asking me to sack Leroy?"

Ravbar said: "I can't say that, that's up to you but transfer him to another site."

I said: "The work that I had elsewhere is winding down and Leroy is my main steel fixing foreman and I need him to run this job."

Ravbar started laughing and said "It all comes down to a business decision Roger."

McHugh said: "We can cause other hassles on your other sites."

I said: "I refuse to talk to you anymore because of your abusive manner."' "

26 FEBRUARY 1999

16 As to the events of 26 February 1999, the primary judge found that:

"[43] On 26 February 1999, McHugh and Kersey were again on the site. There was a confrontation between McHugh and Leroy which I find was instigated by McHugh. I accept the evidence of Leroy and Parkinson as to what occurred as both are in substantial agreement. The evidence of McHugh is to like effect. McHugh, I find, was surprised to find Leroy on site and stated that Leroy should not be on the site, should not be working on the site, and should have been thrown off the site.

[44] A short time after the confrontation, McHugh went to the site office of McConnell Dowell and sought inspection of the induction form relating to Leroy. When the card could not be found, McHugh alleged that Leroy had not done an induction course and stated that in consequence, Leroy must be removed from the site.

[45] When an induction card was ultimately found, McHugh compared the signature of Leroy on that document with the signature on a union application form dated 1995. He then told Parkinson that Leroy owed the union over $1,000 and that McConnell Dowell could legally remove Leroy from the site.

[46] As a result of a telephone call from Parkinson, Lilley arrived on the site. I accept Lilley's version of what then occurred as set out in his affidavit :

`Kersey said: "Hi, Roger".

I said: "What's the idea of you guys coming on site, abusing my men and disrupting my site?"

McHugh said: "He's a fucken scab, he owes us a thousand dollars from back dues. We'll get our money one way or the other."

I said: "I've had enough of this abuse, you're the most [arrogant] person I've met, every time you have been on site you have abused me or one of my workers. I've had enough."

McHugh said: "I don't give a fuck about you, how many jobs do you have in Brisbane." He then pulled a pager from his pocket and said; "Within two minutes I'll notify all the delegates to target all your sites."

I said: "And what are you going to do?"

McHugh said: "We can stop all the work if we have to."'

[47] The version of the conversation recalled by Parkinson is to similar effect and is as follows :

`Lilley said words to the effect: "Why are you harassing my men?"

McHugh said words to the effect: "Because he owes the union money and he shouldn't be on site."

Lilley said words to the effect: "I have just about had enough of the unions victimising my company and my men."

McHugh said words to the effect: "I hear you have got a job down in Brisbane all I have to do is put your name on this pager and I can send it around to all the organisers in Brisbane so that they watch out for you." He then pulled the pager from his pocket. The conversation ended soon thereafter.'

[48] I do not accept McHugh's assertions that he did not suggest to Lilley that Leroy should be put off the site. The focus of McHugh on 26 February 1999, so far as Leroy was concerned, was to procure his removal from the site. I accept the evidence of Parkinson that McHugh stated to Lilley in response to the question as to the reason for the harassment included the statement that Leroy should not be on site."

The primary judge's consideration

17 The primary judge reasoned that for the purposes of the contraventions of s 298P(3) alleged, the threat of industrial action was intended to coerce Candid Hire as employer to take action against Leroy. His Honour found that the evidence satisfied s 298K(1)(a), (b) and (c) in that it was intended to induce Leroy's dismissal or injure him in his employment or alter the position of Leroy to his prejudice. This was for a prohibited reason pursuant to s 298L(1)(b), namely a refusal or failure of Leroy to join the CFMEU and/or the BLF.

18 However, in relation to 20 January 1999, the primary judge found that to the extent McHugh referred to "hassles on your other projects" and "we will take this to other sites of yours", he was threatening to take industrial action within the meaning of paragraphs (c) or (d) of the definition of "industrial action" in s 298B(1). That threat was, however, made to attempt to coerce Lillicorp to pay the union membership fees of those employees, who would be working on site, as members of the CFMEU and/or BLF and not to coerce Candid Hire or Lillicorp to take any action against Leroy. Therefore the conduct of 29 January did not give rise to the contravention alleged.

19 In relation to the conduct which occurred on 29 January 1999, the primary judge found that the conduct of Ravbar and McHugh was intended to encourage or incite Lilley, as the person controlling the affairs of Leroy's employer, to take action to have Leroy removed from the site because he was not, and refused to become, a financial member of either the CFMEU or the BLF. His Honour explained that:

"In the context of s 298P(3)(a) of the Act, the phrase `advise, encourage or incite' involves a communication from an industrial association or from an officer or member of such an association which counsels, intimates to, urges, spurs on or stirs up an employer to take action which if taken would contravene s 298K of the Act: Bennett v Milliner (1959) 1 FLR 312 at 322; Ansett Transport Industries (Operations) Pty Ltd v Australian Federation of Air Pilots [1991] 1 VR 637 at 670."

20 At pars 60 to 64, his Honour said:

"[60] On 29 January 1999 Leroy was working on the site. He had the ability to earn income and to be paid and receive all his benefits and entitlements under the Site Agreement. To refuse to allow Leroy to work on the site would have deprived him of the opportunity to earn income and denied him the benefits and entitlements which he enjoyed under the Site Agreement. Such deprivation would be to injure an employee in his employment and to alter the position of an employee to the employee's prejudice: Linehan v Northwest Exports Pty Ltd [1981] FCA 199; (1981) 57 FLR 49 at 62.

[61] At the time that Ravbar and McHugh engaged in the conduct on 29 January 1999, each was an officer of an industrial association and their conduct constituted a contravention by each of them of s 298P(3)(a) of the Act. Although present on 29 January 1999, there was no conduct on the part of Kersey which constituted a contravention. At best, it can be said he did not demur from the conduct of the other two. However, the case of the Advocate was not advanced on the basis that he thereby contravened. The case against Kersey relied upon his conduct on 20 January 1999.

[62] It was submitted that McHugh was on site acting in the interests of the BLF as a State organisation alone and had no interest in, and was not acting as, an officer of the CFMEU when on the site. I do not accept this submission. McHugh, I find, knew that the employment conditions on the site were governed by what was to be a federal certified agreement. The BLF, as a State registered organisation, was not a party to that agreement. The interest of the BLF in respect of the site agreement was in its capacity as the "Builders Labourers' Division of the CFMEU". McHugh was an officer of the federal organisation of the CFMEU by virtue of being an officer of the CFMEU Queensland Construction Workers' Divisional Branch. It was in this capacity that he entered the site and it was in this capacity which he acted when on site. The interests of the BLF on site were the same interests as those of the Queensland Construction Workers' Divisional Branch of the CFMEU, and it was in respect of those interests that McHugh was acting. Whether or not McHugh was also attempting to recover past dues for the BLF is irrelevant if one of the reasons for his conduct is a proscribed reason.

[63] It was submitted that Ravbar was not acting on behalf of the CFMEU because it had no interest in Leroy as a member of the BLF, a State organisation. I do not agree, Ravbar was intent on having the work to be performed by Lillicorp being treated as CFMEU and not AWU work. He was also intent on ensuring that all employees used by Lillicorp were members of the CFMEU. That was achieved by having the non-trade occupations signed up as members of the BLF and through that organisation enrolled as members of the Queensland Construction Workers' Divisional Branch of the CFMEU.

[64] I find that on 29 January 1999, McHugh was an officer of both the CFMEU and the BLF and acting in that capacity when engaging in the conduct I have found occurred on site on that day. Ravbar was, I find, an officer of the CFMEU and acting in that capacity when engaging in the conduct I have found occurred on site on 29 January 1999. The consequence of these findings is that by the application of the ordinary rules of agency, the conduct of the officers became conduct for which the CFMEU, and the BLF in respect of McHugh, became liable for: see Rowe v Transport Workers' Union of Australia (1998) 90 FCR 95 at 115. Additionally, s 298B(2)(b) operates so that the actions of Ravbar and McHugh become the actions of their respective industrial associations. The respondents submit that s 298B(2) and (3) and s 298D of the Act are invalid as being beyond the constitutional power of the Commonwealth. The submissions advanced in support of such a contention were the same as those advanced in Rowe. I have considered my reasons for rejecting the submissions in Rowe. I see no reason to alter my previous conclusion on the issue."

21 Finally, in relation to the conduct of 26 February 1999, the primary judge found that the conduct of McHugh on that date constituted a contravention of s 298P(3)(a) and (b) of the Act. That conduct was taken with the intention of having Leroy removed from the site because Leroy refused to become a member of an industrial association. It was thereby taken to injure Leroy in his employment or to alter the position of Leroy to his prejudice. In particular, the words ,"how many jobs do you have in Brisbane", the statement, "Within two minutes I'll notify all the delegates to target all your sites" and the statement, "We can stop all the work if we have to", in conjunction with the action of producing a pager from his pocket, constituted a threat to take industrial action as defined in s 298B(1) of the Act. Further, his Honour reasoned that McHugh engaged in the conduct on 26 February 1999 in his capacity as an officer of both the CFMEU and the BLF and by the operation of s 298B(2) his actions became the actions of the CFMEU and the BLF.

22 Indicating that he would hear the parties on a date to be fixed on the question of pecuniary penalties, the primary judge made the following declarations and orders:

"1. The first, second, third and fourth respondents have engaged in conduct in contravention of s 298P(3) of the Workplace Relations Act 1996 (Cth) on 29 January 1999.

2. The first, second and third respondents have engaged in conduct in contravention of s 298P(3) of the Workplace Relations Act 1966 (Cth) on 26 February 1999.

3. The proceedings be dismissed against the fifth respondent."

The May 2002 judgment

23 The respondents sought to appeal from the declarations and orders of 22 December 2000. Leave to appeal was refused by a Full Court on 18 October 2001: see Construction, Forestry, Mining & Energy Union v Employment Advocate [2001] FCA 1442. Leave was refused because the declaratory orders of 22 December 2000 were interlocutory orders, to grant leave to appeal would tend to fragment the appellate process, and no substantial injustice to the unions and officials concerned would result. They will remain able to appeal at the usual and proper time, ie when final orders are made on the determination of penalties.

24 The matter was re-listed on 7 February 2002 for hearing on the question of the penalty to be imposed in respect of the contraventions.

25 The primary judge handed down his judgment on the issue of penalty on 22 May 2002. In respect of the question whether the conduct of each date should be treated as separate and distinct or conjunctively, his Honour found that as the conduct which occurred on 29 January 1999 took as its focus the removal of Leroy from the site because he would not join an industrial association and the conduct engaged in again on 26 February 1999 with a view to achieving the same purpose, it was appropriate to treat all of the incidents as having arisen in a single course of conduct aimed at procuring the removal of Leroy from the site. His Honour further noted that although each event was a part of a single course of conduct, and thus would not each attract a separate penalty, "the persistence in the conduct over time is a circumstance of aggravation when one looks at the culpability of the conduct viewed as a whole".

26 At par 16, the primary judge said in relation to the conduct of McHugh,

"... was completely unacceptable. It was abusive, threatening and intended to intimidate or coerce others to act to achieve the outcome the third respondent wished to achieve. It was deliberate and sustained and carried on in the face of assertions from those entrusted with responsibility for industrial relations on the employer side that it was unlawful. The penalty to be imposed against the third respondent requires that it act as a deterrent to him and others who might be like-minded to engage in the "bully-boy" practice of industrial relations. It is difficult to see anything ameliorating in the circumstances of the third respondent's behaviour, other than it was unsuccessful in bringing about the desired result."

27 As for the issue of the penalty to be imposed, if any, on Ravbar, his Honour said at par17 as follows:

"[Ravbar] may not have adopted the belligerent abusive approach of the [McHugh]. However, he clearly knew that he could not lawfully engage in the conduct which he did, as some of his statements to Lilley on 29 January 1999 at the McConnell Dowell site office indicate. The penalty to be imposed on the fourth respondent must reflect that his involvement is limited to the events which occurred on 29 January 1999."

28 In response to the submissions of counsel on behalf of the Unions that no penalty ought to be imposed against them because they have only been caught by the deeming provision in s 298B(2) of the Act, the primary judge stated at par 19 that the submission as to "their responsibility for the conduct of their officers by virtue of the operation of s 298B(2) is ... misconceived".

Issues arising on appeal

29 By notice of appeal filed 30 May 2002, the appellants seek that the orders dated 9 May 2002 imposing penalties on the appellants, the CFMEU and Ravbar, be set aside. The appellants contend that Cooper J fell into appellable error in the 2000 judgment by finding that the CFMEU and Ravbar had engaged in conduct in contravention of s 298P(3) on 29 January 1999 and that the CFMEU engaged in conduct in contravention of s 298P(3) on 26 February 1999. In addition, it challenged various findings of fact.

30 Counsel for the appellants acknowledged the advantages that the trial judge has in assessing conflicting testimony of witnesses. The appellants contend, however, as was acknowledged by the High Court in State Railway Authority v Earthline Constructions [1999] HCA 3; (1999) 160 ALR 588, the trial judge's view even as to actual findings is not immune from appeal.

31 The appellants challenge the finding by the trial judge that Ravbar said words to the effect, "We want Leroy removed from the site" and that McHugh said words to the same effect. It was submitted that the evidence was that Lilley said that Ravbar had used the words; Parkinson said that McHugh had used them; Ravbar denied using the words, and did not recollect them being used; Kersey did not recall the words being used; Papadimitriou recalled the words being used but could not remember who used them. Cooper J found that Ravbar used the words by rejecting Ravbar's denials and relying on the evidence of Lilley and Papadimitriou, and his Honour found that McHugh used the words, relying on the evidence of Parkinson. These findings, it was submitted:

"... ignores the fact that out of the six witnesses who gave evidence of the conversation, three of whom were called by the Respondent, only Lilley gave evidence that Ravbar used the words ...

none of them said that both Ravbar and McHugh used the words."

32 In our view, it was clearly open to the primary judge to find as he did. The primary judge noted:

"I am satisfied that the conversations were fragmented and that McHugh attempted to intrude into the conversation between Lilley and Ravbar ..."

33 The finding that Ravbar had engaged in the conduct pleaded against him is not undermined by the circumstance that the primary judge also found McHugh to have made a statement concerning the removal of Leroy from the site, which conduct was not pleaded.

34 This is a case which clearly falls within the observation by the High Court is Devries v Australia National Railways Commission [1992] HCA 41; (1993) 177 CLR 472 where Brennan, Gaudron and McHugh JJ said at 479:

"If the trial judge's finding depends to any substantial degree on the credibility of the witness, the finding must stand unless it can be shown that the trial judge `has failed to use or has palpably misused his advantage' SS Hontestroom v SS Sagaporack, [1927] AC 37, at p 47. or has acted on evidence which was `inconsistent with facts incontrovertibly established by the evidence' or which was `glaringly improbable'."

The recent observation by McHugh J in Rosenberg v Percival [2001] HCA 18; (2001) 205 CLR 434 at par 41 is also apposite:

"Where a finding is based on credibility and other facts support the finding, the case would need to be exceptional before an appellate court could set aside the finding on the ground that, judging by the transcript, the trial judge gave insufficient weight or consideration to other facts and circumstances in the case. The common law tradition is an oral tradition. Trial by transcript can seldom be an adequate representation of an oral trial before a judge or an oral trial before a judge and jury."

35 The appellants next challenge the finding that the conduct on 29 January 1999 and 26 February 1999 was engaged in with a view to achieving the removal of Leroy from the site because he would not join an industrial association. The appellants contend that a proper analysis of the evidence would lead to no other conclusion than that Ravbar and McHugh thought that Leroy was already a member of the BLF but was unfinancial, and that they were seeking that he pay his outstanding membership dues.

36 While it is clear that there was considerable evidence concerning payment of what was said to be outstanding membership dues, the sequence of events as found by the primary judge permitted the conclusion that on 29 January and 26 February 1999, the conduct of Ravbar and McHugh was directed at having Leroy removed from the site. McHugh gave evidence that on 29 January he spoke with Leroy and told him that he owed the BLF $985 in outstanding membership fees, and that Leroy said words to the effect: "I'm not joining your union" and " You can talk to my solicitor."

37 The primary judge accepted Leroy as an honest witness and accepted his evidence that the following conversation occurred between him and McHugh:

"McHugh said words to the effect: `We are not after the money all we are after is for you to get back in the union.'

I said words to the effect: `Look I have already told you this is against my principles and you won't get me to join the union.'

McHugh said words to the effect: `Well I have to go and see Roger to get him to remove you from the site.'

I said words to the effect: `Well go ahead matey see if I care'." [Emphasis added]

38 Subsequent to that exchange, there was a meeting held at the McConnell Dowell site office and the evidence of Lilley, which the trial judge accepted as correct, was as set out in par 16 of these reasons, including the statement by Ravbar that "We want Leroy removed from the site ... because he doesn't want to join the union." There was evidence to support the primary judge's finding that the demand that Leroy be removed from the site was because of his failure to join the union, not for his failure to pay outstanding membership dues.

39 The appellants further contended that the evidence does not support the finding that the union officers were seeking to injure Leroy in his employment or alter the position of Leroy to his prejudice, it being contended that seeking that Leroy be transferred to another site did not necessarily mean that he would receive lesser benefits or entitlements. The primary judge found:

"To refuse to allow Leroy to work on the site would have deprived him of the opportunity to earn income and denied him the benefits and entitlements which he enjoyed under the Site Agreement. Such deprivation would be to injure an employee in his employment and to alter the position of an employee to the employee's prejudice: Linehan v Northwest Exports Pty Ltd [1981] FCA 199; (1981) 57 FLR 49 at 62."

40 The evidence does not permit the conclusion that Leroy could be transferred to other sites at which Candid Hire worked so that a "transfer" would be possible. The primary judge noted:

"Notwithstanding that Lilley advised that he could not employ Leroy off site because he did not have work for him to do, Ravbar and McHugh persisted in seeking his removal."

Moreover, in our view, merely seeking the removal of someone from a work site such that it would be no longer possible for that worker to work at the site, is sufficient to constitute injury to them in their employment or for them to have suffered a prejudicial alteration to their position. That is so, in our opinion, irrespective of the fact that they might be able to obtain more lucrative work elsewhere.

41 In the NUW case, it was said at par 74:

"... If someone seeks to have an employee removed from a worksite such that it would no longer be possible for him to work at the site, it seems to me that he will have been injured or suffered a prejudicial alteration to his position. The fact that he might attain similar or better work somewhere else, just as he might win the Lottery, or become very much worse off is in my view irrelevant to the statutory scheme. Once sufficient evidence of his position is led as to make it possible to ascertain what the possible effect on his position at the time would have been, it is not necessary to delve into the other possibilities that might have ensued."

42 Next it was argued that the primary judge erred in finding that the conduct of Ravbar and McHugh on 29 January 1999 was intended by them to encourage or incite Lilley, as the person controlling the affairs of the employer of Leroy, to take action to have Leroy removed from the site because he was not, and refused to become, a financial member of either the CFMEU or the BLF. The claim is made that the prohibited reason in 298L(1) of the Act makes no reference to refusal to be a "financial" member of the union. The submission is that freedom of association provisions would not protect someone who had agreed to join the union and then refused to pay the fees. It is said that his Honour fell into error by his reference to financial membership.

43 In our view, the primary judge's use of the term "financial member" was not being used to discriminate between financial and unfinancial membership. It is plain, in looking at the reasons for judgment as a whole, that the primary judge found that the prohibited reason relied on by the respondent, being a refusal to become a member of a union, was made out.

44 The appellants contend that there was no evidence of a threat of industrial action against Candid Hire, the employer of Leroy, with the consequence, it was said, that the finding of a contravention of 298P(3)(b) of the Act cannot stand. However, his Honour found:

"The conduct of McHugh on 26 February 1999 was with the intention of having Leroy removed from the site. The words `how many jobs do you have in Brisbane', the statement `Within two minutes I'll notify all the delegates to target all your sites' and the statement `We can stop all the work if we have to', in conjunction with producing a pager from his pocket, constituted a threat to take industrial action as defined in s 298(B)(1) of the Act. The conduct was intended to encourage or incite Lilley, and through him Candid Hire as the employer of Leroy, to remove Leroy from the site because Leroy refused to become a member of an industrial association and thereby to injure Leroy in his employment or to alter the position of Leroy to his prejudice." [Emphasis added]

45 The primary judge rejected a submission that McHugh was on site acting in the interests of the BLF as a state organisation alone, and was not acting as an officer of the CFMEU. The primary judge found that McHugh's conduct was engaged in as an officer of both the CFMEU and the BLF. On 26 February 1999 he was continuing to act in that capacity and for the same purpose he was on 29 January 1999.

46 In his oral evidence McHugh admitted that he was an officer of the CFMEU and that his permit as an officer of the CFMEU, the federal organisation, was the permit he used to enter the site at Oakey. There was evidence from Kersey, who was an organiser of the CFMEU for fourteen years, that if a person joins the BLF "they become a member of the Federal Branch of the CFMEU."

47 This submission on behalf of the CFMEU ignores the reality of the position. The conduct of Ravbar and McHugh was directed at securing site coverage at Oakey for the CFMEU, the union which party to the site agreement.

48 In our judgment, none of the grounds seeking to impugn the findings of contraventions of the Act by the first and second appellants has been made out. We have set out our reasons in respect of those grounds warranting such consideration.

49 Turning to the question of severity of penalties, the contention by the appellants is that the primary judge erred in the severity of penalties he imposed on them. As what might be thought to be particulars of that broad ground, the appellants assert:

"14. In his judgment on 9 May 2002 Cooper J erred by finding that there is nothing in the circumstances of the case to ameliorate the penalty to be imposed.

15. In his judgment on 9 May 2002 Cooper J erred by finding that it is simply a case where nothing is known as to the antecedents and subsequent conduct of those who have committed the breach.

16. In his Judgment on 9 May 2002 Cooper J erred by failing to take account of the undisputed fact that the Appellants had never previously been found to be engaged in contravention of Part XA of the Act and that there had been no findings of such a contravention since 22 December 2000.

17. In his judgment on 9 May 2002 Cooper J erred by failing to take account the fact that the conduct was not undertaken in deliberate defiance or disregard of the Act.

18. In his judgment on 9 May 2002 Cooper J erred by failing to take account the fact that there were no consequences that arose as a result of the contraventions."

50 The Employment Advocate had submitted on penalty that the conduct struck at the heart of the principles of freedom of association created by Part XA of the Act, and was done in deliberate defiance or disregard of the relevant provisions of the Act, and that if the conduct had procured the removal of Leroy from the site the consequences would have been serious. He submitted that the penalties to be imposed should be at the upper end of the range. The respondents had submitted there should be no penalties for the industrial associations, and only at the lower end of the range for the individual union officials, and submitted that the penalties sought by the applicant bore no proportion to the contraventions which had occurred.

51 The primary judge said:

"The factors relevant to the imposition of a penalty for a contravention of Part XA of the Act have been considered in a number of cases, and include:

(a) the circumstances in which the conduct occurred;

(b) seriousness and audacity of breaches;

(c) the deliberateness of the breach;

(d) past record of like behaviour;

(e) any contrition;

(f) harmful consequences suffered;

(g) the need for deterrence."

His Honour referred by way of example to: Construction, Forestry, Mining and Energy Union v Coal & Allied Operations Pty Ltd (No 2) [1999] FCA 1714; (1999) 94 IR 231 at 232; Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v DMG Industries Pty Ltd [1999] FCA 735; (1999) 89 IR 360 at 364 - 365; The Age Company Ltd v Automotive, Food, Metal, Engineering, Printing and Kindred Industries Union [2000] FCA 1757 at [19]; Seven Network Operations Ltd v Communications, Electrical, Electronic, Energy Information, Postal, Plumbing and Allied Services Union of Australia [2001] FCA 672 at [3] - [4]; Employment Advocate v National Union of Workers [2000] FCA 965; [2000] 99 IR 376 at 377 - 378)("the NUW case).

52 Concerning the question of the severity of the penalty imposed on the fourth respondent, the primary judge said of the third respondent:

"The penalty to be imposed against the third respondent requires that it act as a deterrent to him and others who might be like-minded to engage in the `bully-boy' practice of industrial relations. It is difficult to see anything ameliorating in the circumstances of the third respondent's behaviour, other than it was unsuccessful in bringing about the desired result."

His Honour imposed a penalty on the third respondent of $1,500.

53 Of the fourth respondent the primary judge made the observations set out in par 27 above.

54 In our judgment no basis exists to interfere with the penalty imposed on Mr Ravbar, and his appeal must be dismissed.

55 As to the severity of the penalty imposed on the CFMEU, as earlier indicated, it was submitted to the primary judge on its behalf that no penalty ought to be imposed against it, because "it had only been caught by the deeming provision of 298B(2) of the Act." That section provides:

"For the purposes of this Part, action done by one of the following bodies or persons is taken to have been done by an industrial association:

(a) the committee of management of the industrial association;

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

(c) a member or group of members of the industrial association acting under the rules of the association;

(d) a member of the industrial association, who performs the function of dealing with an employer on behalf of the member and other members of the association, acting in that capacity.

In his judgment, the primary judge outlined the submissions by counsel on behalf of the CFMEU that:

"... there can be no question of a deliberate disregard and defiance of the provisions of Part XA of the Act by the organisations, and, no matter what can be said about the conduct of their officers, the same cannot be said of the organisations."

56 The primary judge said that this submission was "misconceived". This squarely raises the question of whether the CFMEU should have been punished on the basis of a deliberate disregard and defiance of the provisions of Part XA of the Act by it because it led no evidence to establish the contrary. That is what the primary judge seems to have held. That raises the ancillary question of whether it has to be established positively that there was on the part of the CFMEU a deliberate disregard and defiance of the provisions of Part XA of the Act.

57 The primary judge in this regard said:

"20. The statutory intention underlying s 298B(2) is to make the organisation responsible for the conduct of its officers. It is intended to encourage those organisations to take active steps to control the actions of its officers, servants and agents to ensure as far as is possible by taking all reasonable steps, that the conduct of them is not in contravention of Part XA of the Act. It was not intended that an industrial organisation could avoid the serious consequences of conduct engaged in by its officers, servants or agents, deliberately and flagrantly in contravention of the Act, by simply doing nothing to control or prevent it, or by turning a blind eye to the conduct. If an industrial organisation turns a blind eye, or does not concern itself as to the manner and methods employed by officers, servants or agents of the industrial organisation to achieve what they see as the organisation's ends, the organisation is at risk of being heavily penalised where the means adopted are prohibited and exhibit the worst features of the proscribed conduct.

21. In the present case, the first and second respondents have chosen to give no evidence as to what those in authority knew of the conduct of the third and fourth respondents at and prior to the matters complained of. Nor is there any evidence as to what, if any, action was taken by the organisation to counsel, or moderate the behaviour of, the officers for the future.

22. The absence of any material in this regard, counsel for the respondents submits, means that a penalty must be imposed on the basis that there has been no prior infringement by the organisations or the officers, and that there has been no subsequent infringing conduct.

23. In my view, the absence of material of this type means that there is nothing in the circumstances to ameliorate the penalty to be imposed having regard to the seriousness of the conduct if left unexplained. It is simply a case that nothing is known as to the antecedents and subsequent conduct of those who have committed the breach.

24. In this respect, the case is distinguishable from the decision in Employment Advocate v National Union of Workers relied upon by the first and second respondents as authority for the proposition that no penalty should be imposed on them. In the NUW Case, those in authority in the union gave evidence which was not challenged, that at no stage did they have any knowledge of the conduct of the officer or give the officer any specific authorisation for his conduct: [2000] FCA 965; 99 IR 376 at 381 par [21]. It was this circumstance which persuaded Einfeld J not to impose a penalty on the union. That is not this case.

25. In the conduct of these proceedings, there is nothing to suggest that the organisations regarded anything that the third or fourth respondent did in the circumstances complained of as wrong. Further, there is nothing to suggest that either the organisations or the officers are in the slightest degree contrite for what has occurred."

58 There is a real difficulty occasioned by the reference in par 22 of the 2002 Judgment to "material in this regard" and the reference in par 23 to "material of this type". It is clear that the question of proven contraventions is a different matter from evidence from the unions as to their knowledge of the conduct at the time of or prior to its commission, or to any subsequent action taken by them "... to counsel, or moderate the behaviour of, the officers in the future." The difficulty in this regard is compounded by the use of the word "antecedents", in par 23 of the 2002 Judgment which, it might be thought, probably ought to read "antecedent".

59 Nonetheless, reading the passage of the primary judge's reasons set out above as a whole, the reference seems to import a requirement for the union to lead evidence of the kind specifically referred to by the primary judge in par 24 as being led in the NUW case. The primary judge proceeded on the basis that there was nothing to suggest that the organisations regarded anything that the third or fourth respondent did in the circumstances complained of as "wrong".

60 Yet, it has to be said that there is nothing to suggest that the organisations regarded anything that the third or fourth respondent did in the circumstances complained of as being "right".

61 It seems to us that the primary judge proceeded on the basis that in the absence of evidence of the kind led in the NUW case, the CFMEU had engaged in a deliberate disregard and defiance of the provisions of Part XA of the Act. There is, in our view, no onus on a respondent to an application for a penalty to lead evidence of ignorance in order that the penalty imposed against it should be ameliorated.

62 Consequently, the process of imposing a penalty on the CFMEU proceeded on a wrong basis. The penalty imposed has to be set aside, and a fresh penalty imposed.

63 There is, in our view, no evidence that the CFMEU "turned a blind eye" or did not concern itself as to the manner and methods employed by its officers, servants or agents. The CFMEU is to be penalised on the basis that its officer engaged in what the primary judge accurately described as "the `bully-boy' practice of industrial relations." By s 298B(2), the CFMEU is to be penalised for that conduct. Conduct of that type had not happened prior to the offence in question, nor subsequently.

64 Approaching the task of the Court with respect to penalty afresh, in our view an appropriate penalty would be $3,000. In the event, the appeal by the CFMEU is allowed in part and the order of the primary judge of 9 May 2002 in respect of the CFMEU is varied by substituting $3,000 for $7,500. The appeal by the second appellant is dismissed.

I certify that the preceding sixty-four (64) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Spender, Drummond & Marshall.

Associate:

Dated: 10 March 2003

Counsel for the 1st & 2nd Appellants:	S. Crawshaw SC
Solicitor for the 1st & 2nd Appellants:	Hall Payne Lawyers
Counsel for the Respondent:	G. Martin SC, with A. Horneman-Wren
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	19 November 2002
Date of Judgment:	10 March 2003