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Construction, Forestry, Mining and Energy Union v Alfred [2011] FCAFC 13 (10 February 2011)
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Construction, Forestry, Mining and Energy Union v Alfred [2011] FCAFC 13 (10 February 2011)
Last Updated: 11 February 2011
FEDERAL COURT OF AUSTRALIA
Construction, Forestry, Mining and Energy
Union v Alfred [2011] FCAFC 13
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Citation:
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Construction, Forestry, Mining and Energy Union v Alfred [2011] FCAFC
13
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Appeal from:
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Alfred v Construction, Forestry, Mining & Energy Union & Ors [2009]
FMCA 613; Alfred v Construction, Forestry, Mining & Energy Union & Ors
(No 2) [2009] FCMA 1003 |
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Parties:
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CONSTRUCTION, FORESTRY, MINING & ENERGY
UNION, CONSTRUCTION, FORESTRY, MINING & ENERGY UNION (NSW BRANCH) and
SALVATORE MANNA
v GREGORY CHARLES ALFRED
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File number:
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NSD 1272 of 2009
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Judges:
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BUCHANAN, FLICK AND KATZMANN JJ
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Date of judgment:
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Catchwords:
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EVIDENCE – appellate jurisdiction – findings of fact
based on credibility assessment by court at first instance – review
of
evidence – appellable error – approach to be taken by appellate
court
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Legislation:
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Cases cited:
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Place:
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Sydney
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Division:
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FAIR WORK DIVISION
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Category:
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Number of paragraphs:
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Counsel for the First, Second and Third
Appellants: |
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Solicitor for the First, Second and Third Appellants:
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Taylor & Scott Lawyers
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Counsel for the Respondent:
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Mr J Fernon SC with Ms E Raper
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Solicitor for the Respondent:
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Freehills
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IN THE FEDERAL COURT OF AUSTRALIA
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NEW SOUTH WALES DISTRICT REGISTRY
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ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
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CONSTRUCTION, FORESTRY, MINING & ENERGY
UNIONFirst Appellant
CONSTRUCTION, FORESTRY, MINING & ENERGY UNION (NSW
BRANCH)
Second Appellant
SALVATORE MANNA
Third Appellant
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AND:
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GREGORY CHARLES
ALFREDRespondent
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BUCHANAN, FLICK AND KATZMANN JJ
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DATE OF ORDER:
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WHERE MADE:
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THE COURT ORDERS THAT:
- The
appeal be dismissed.
Note: Settlement and entry of orders is dealt with in Order 36 of
the Federal Court Rules.
The text of entered orders can be located using
Federal Law Search on the Court’s website.
IN THE FEDERAL COURT OF AUSTRALIA
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NEW SOUTH WALES DISTRICT REGISTRY
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FAIR WORK DIVISION
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NSD 1272 of 2009
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ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
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BETWEEN:
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CONSTRUCTION, FORESTRY, MINING & ENERGY UNION
First
Appellant
CONSTRUCTION, FORESTRY, MINING & ENERGY UNION (NSW
BRANCH)
Second Appellant
SALVATORE MANNA
Third Appellant
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AND:
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GREGORY CHARLES ALFRED
Respondent
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JUDGES:
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BUCHANAN, FLICK AND KATZMANN JJ
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DATE:
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10 FEBRUARY 2011
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PLACE:
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SYDNEY
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REASONS FOR JUDGMENT
BUCHANAN J:
The parties
- The
appellants are, respectively, a federal union (“the CFMEU”), a state
union (“the New South Wales branch”)
and a union organiser whom the
CFMEU and the New South Wales branch each admitted they employed (“Mr
Manna”). The respondent
is an Inspector (“the informant”) who
was appointed under s 57 of the Building and Construction Industry
Improvement Act 2005 (Cth) who was competent to commence the proceedings
against the appellants which have led to the present
appeal.
The proceedings at first instance
- The
informant commenced proceedings in the Federal Magistrates Court of Australia
(“the FMCA”) against the appellants
alleging a breach by them of s
789 of the Workplace Relations Act 1996 (Cth) (“the WR Act”)
(since repealed and replaced by the Fair Work Act 2009 (Cth)). The
alleged breach of the WR Act arose from events which occurred on 11 April 2006.
The application filed by the informant
sought penalties and other relief under s
807 of the WR Act. The FMCA found that the alleged breaches of the WR Act had
been established
(Alfred v CFMEU & Ors [2009] FMCA 613) and imposed
monetary penalties on each of the appellants (Alfred v CFMEU & Ors (No.2)
[2009] FMCA 1003). The penalties imposed were $13,000 on each of the CFMEU
and the New South Wales branch and $2,600 on Mr Manna.
- The
events which provided the foundation for the proceedings arose from a telephone
conversation between Mr Manna and Mr John Holm
on the afternoon of 11 April
2006. Mr Holm was a concreter. He was in partnership with a Mr and Mrs Spicer.
Together they traded
as “Anything Concrete” and carried out concrete
placing and finishing work. On such work Mr Holm had the day to day
role of
managing the affairs of the partnership and of conducting negotiations on its
behalf. He worked personally on jobs taken
by the partnership. When a project
was undertaken the partnership also engaged additional labour necessary to carry
out the contracted
work. Those persons, it appears, were not engaged as
employees but rather as individual subcontractors, a practice which was regarded
with disfavour by the CFMEU and the New South Wales branch. Persons engaged in
that fashion, and Mr Holm himself, were eligible
to be members of both the CFMEU
and the New South Wales branch, each of which had an active policy that such
persons should be members.
Part of Mr Manna’s role involved encouraging
union membership.
- In
2006 a shopping centre known as “The Portico Plaza” was under
construction at Toongabbie, New South Wales. The head
contractor was North East
Developments Pty Ltd (“North East”). On 21 February 2006 North East
contracted with Conform
Australia Pty Ltd (“Conform”) for it to
supply form work and to place and finish concrete at the site. The sole
director
and secretary of Conform was Mr Joseph Younan. On or about 24 March
2006 Conform contracted with the Anything Concrete partnership
for it to carry
out concrete placing and finishing work in performance of parts of
Conform’s contract with North East.
- On
11 April 2006 there was a meeting at the site. Mr Simon Symond, a director of
North East, Mr Manna and another official of the
CFMEU met together. Mr Younan
was on the site and was asked to join the meeting. Mr Manna was informed that
Anything Concrete had
been engaged by Conform to perform work on the site. He
expressed his strong disapproval of that choice. During the afternoon Mr
Manna
(but not in the presence of the others) spoke to Mr Holm for about 16 minutes.
They each spoke on a mobile telephone. During
this conversation statements were
made by Mr Manna which were asserted in the pleadings to be evidence of a breach
of s 789 of the
WR Act.
- In
an amended statement of claim filed on 2 October 2008 the matters relied upon by
the informant were pleaded as follows:
- On
or about 11 April 2006, Manna advised John Holm that if he proceeded with the
Anything Concrete services on the Site and he did
not become a member of the
First and/or Second Respondent, Manna would:
(a) bankrupt Holm and/or Anything
Concrete;
(b) have Holm and/or Anything concrete audited;
and/or
(c) make Holm’s life a misery.
10A. In the alternative to paragraph 10, on or about 11 April 2006, Manna
advised Holm that if he proceeded with the Anything Concrete
services on the
Site and he and/or his employees and/or subcontractors did not become members of
the First and/or Second Respondent,
Manna would:
(a) bankrupt Holm and/or Anything
Concrete;
(b) have Holm and/or Anything concrete audited;
and/or
(c) make Holm’s life a misery.
- In
so doing, Manna threatened to organise or take action against Holm with the
intent to coerce Holm and/or his employees and/or subcontractors
to become
members of the First and/or Second Respondent.
- By
reason of the matters pleaded in paragraphs 10, 10A and 11, Manna contravened
section 789 of the Act.
- By
this pleading, about which no complaint was made on the appeal, the informant
sought to attach liability to Mr Manna under s 789
of the WR Act for statements
made by Mr Manna to Mr Holm concerning the question of whether he should become
a member of the CFMEU
(or the New South Wales branch) and whether other persons
engaged by Anything Concrete to work on the site, whether as employees
or
subcontractors, should become members of either association.
- The
CFMEU and the New South Wales branch were alleged to be jointly and severally
culpable with Mr Manna by reason of s 779(2) of
the WR Act which provided that
the conduct of an officer of an “industrial association” was taken
to be conduct of that
industrial association. The term “industrial
association” was defined in s 779(1) to include an association of
employees
registered under an industrial law. The term “industrial
law” was defined, also in s 779(1), to include the WR Act and
a law of a
State regulating the relationships between employers and employees. The CFMEU
was registered under the WR Act. The New
South Wales branch was registered
under the Industrial Relations Act 1996 (NSW), a State law which
satisfied the definition of “industrial law” in s 779(1). As a
result, if Mr Manna’s conduct
was proved to be in breach of s 789 of the
WR Act, it would follow, so the informant contended, that the CFMEU and the New
South
Wales branch had also breached the same provision. On the present appeal
an issue arises as to whether the legislative provisions
had the result that the
New South Wales branch could be held liable under s 789 of the WR Act for Mr
Manna’s conduct but, subject
to the resolution of that issue, it was not
denied that the CFMEU and the New South Wales branch would be jointly liable
with Mr
Manna.
- Neither
Mr Manna nor Mr Holm made any contemporaneous record of their conversation.
Their evidence about the conversation which
took place between them on 11 April
2006 was irreconcilable. Inevitably, findings of fact were required which would
involve acceptance
of the evidence of one of them rather than the other where
matters were in dispute and corresponding rejection of any competing version
of
the events. The FMCA accepted Mr Holm’s version of events and rejected Mr
Manna’s.
- The
FMCA found that the statements Mr Manna made to Mr Holm were made with an intent
to coerce Mr Holm personally to become a member
of the CFMEU and the New South
Wales branch and to coerce him to procure the union membership of the Anything
Concrete workforce
which would be engaged on the
project.
The meaning of “intent to coerce”
- Section
789 of the WR Act provided:
- Coercion
(1) A person must not organise or take, or threaten to organise or take, any
action against another person with intent to coerce
the other person or a third
person:
(a) to become, or not become, an officer or member of an industrial association;
or
(b) to remain, or cease to be, an officer or member of an industrial
association.
- 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 per Gyles J at [18]-[38]; National Union
of Workers v Qenos Pty Ltd [2001] FCA 178; (2001) 108 FCR 90 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 (“Seven Network”) per Merkel J at
[38]-[43]; Williams v Construction, Forestry, Mining and Energy Union
[2009] FCA 223 (“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.
- No
issue arose in the present case about the second aspect. It was not suggested
that the FMCA made any relevant error in its assessment
of that issue. However,
there are, as will be seen, questions which arise for examination concerning
whether, and to what extent,
the first element identified by Merkel J was
satisfied in the present case.
The approach to the appeal
- An
appeal such as the present involves examination of the question of whether error
was made in the judgment under appeal (see eg
Whittaker v Child Support
Registrar [2010] FCAFC 112 at [2]). In its examination of that question, an
appeal court may be required to make its own assessment of the facts. Whether
it is in
a position to do so in a way which differs from the assessment made by
a trial judge will often depend on whether the findings of
fact made by the
trial judge are based on an advantage not enjoyed by the appeal court, such as
the resolution of disputed facts
based on an assessment of the credit (or lack
of credit) of witnesses in circumstances which depend upon actually hearing and
seeing
the witnesses give evidence.
- In
the present case the resolution of the conflict between the evidence of Mr Holm
and the evidence of Mr Manna depended very substantially
upon an assessment of
the credit of each of them. It depended, in part, upon observation of the way
each of them gave evidence and
responded to questions. The FMCA said it was
comfortably satisfied that Mr Holm’s account of the conversation should be
accepted.
It said it had a very favourable impression of Mr Holm’s
demeanour when giving evidence, to which it had given significance.
By
contrast, it found Mr Manna’s evidence to be (variously described)
unpersuasively presented, untruthful, unbelievable,
unsatisfactory and clearly
inconsistent with contemporaneous records.
- In
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 the majority judgment in the High Court
(Gleeson CJ, Gummow and Kirby JJ) discussed the approach which should be taken
by an intermediate
appellate court dealing with an appeal where a judge at first
instance had determined questions of fact, and ultimately liability,
based on
findings about the credibility of witnesses. In that case, the New South Wales
Court of Appeal had set aside the verdict
of a trial judge and entered judgment
for the defendant even though the findings of the trial judge (in favour of the
plaintiff)
were substantially influenced by his acceptance of the evidence of
particular witnesses over others. One question which arose on
the appeal to the
High Court was whether the Court of Appeal was entitled to set aside the
findings of the trial judge or was bound
to defer to the advantage he possessed
of hearing and seeing the evidence given. At [25] the majority justices quoted
the following
passage from Warren v Coombes (1979) 42 CLR 531 at
551:
“[I]n general an appellate court is in as good a position as the trial
judge to decide on the proper inference to be drawn
from facts which are
undisputed or which, having been disputed, are established by the findings of
the trial judge. In deciding what
is the proper inference to be drawn, the
appellate court will give respect and weight to the conclusion of the trial
judge but, once
having reached its own conclusion, will not shrink from giving
effect to it.”
- Their
Honours then referred (at [26]) to an established line of authority
“concerning the need for appellate respect for the
advantages of trial
judges, and especially where their decisions might be affected by their
impression about the credibility of witnesses
whom the trial judge sees but the
appellate court does not” (Jones v Hyde [1989] HCA 20; (1989) 63 ALJR 349 at
351-352; [1989] HCA 20; 85 ALR 23 at 27-28; Abalos v Australian Postal Commission [1990] HCA 47; (1990)
171 CLR 167 at 179; Devries v Australian National Railways Commission
[1992] HCA 41; (1993) 177 CLR 472 at 479, 482-483).
- Importantly,
their Honours observed (at [27]):
The cases mentioned remain the instruction in this Court to appellate
decision-making throughout Australia.
- The
instruction in those cases (and this was the point which required direct
attention in Fox v Percy) does not have the consequence that conclusions
based on credibility findings are unreviewable but, as emphasised in the passage
which follows, the circumstances which might justify an appeal court acting
contrary to or in disregard of credibility findings are
limited. The majority
judgment in Fox v Percy said, in that respect, (at
[28]-[29]):
28 Over more than a century, this Court, and courts like it, have given
instruction on how to resolve the dichotomy between the foregoing
appellate
obligations and appellate restraint. From time to time, by reference to
considerations particular to each case, different
emphasis appears in such
reasons. However, the mere fact that a trial judge necessarily reached a
conclusion favouring the witnesses
of one party over those of another does not,
and cannot, prevent the performance by a court of appeal of the functions
imposed on
it by statute. In particular cases incontrovertible facts or
uncontested testimony will demonstrate that the trial judge's conclusions are
erroneous, even when they appear to be, or are stated to be, based on
credibility findings.
29 That this is so is demonstrated in several recent decisions of this Court.
In some, quite rare, cases, although the facts fall short of being
“incontrovertible”, an appellate conclusion may be
reached that the
decision at trial is “glaringly improbable” or “contrary to
compelling inferences” in the
case. In such circumstances, the
appellate court is not relieved of its statutory functions by the fact that the
trial judge has, expressly
or implicitly, reached a conclusion influenced by an
opinion concerning the credibility of witnesses. In such a case, making all
due
allowances for the advantages available to the trial judge, the appellate court
must “not shrink from giving effect to”
its own conclusion
...
(Emphasis added - footnotes omitted)
- McHugh
J said (at [90]):
It is a serious mistake to think that anything said in Abalos or
Devries necessarily prevents an appellate court from reversing a trial
judge's finding when it is based, expressly or inferentially, on demeanour.
Those cases recognise - in accordance with a long line of authority - that it
may be done. But there must be something that points decisively and not
merely persuasively to error on the part of the trial judge in acting on his
or
her impressions of the witness or witnesses. Recently in State Rail
Authority (NSW) v Earthline Constructions Pty Ltd (in liq), for example,
this Court held that undisputed and documentary evidence was so convincing that
no reliance on the demeanour of witnesses
could rebut
it.
(Emphasis added - footnote omitted)
- Although
a headnote in a published report, even in an authorised series such as the
Commonwealth Law Reports, may not be substituted
for, or contradict, the text of
the judgments in the case in question, it is instructive to note the principle
for which Fox v Percy is said by the headnote to be authority (at page
118):
A finding of fact by a trial judge, based on the credibility of a witness, may
only be set aside upon appeal where incontrovertible
facts or uncontested
testimony demonstrate that the judge's conclusions are erroneous or where it is
concluded that the decision
at the trial was glaringly improbable or contrary to
compelling inferences in the case.
- In
my view Fox v Percy is not authority for the proposition that findings
based on credibility are to be treated with less respect than before. On the
contrary, Fox v Percy emphasised again the limitations which were earlier
recognised whilst accepting that, in that particular case, appellate
intervention
by the Court of Appeal had been justified.
- A
clear case of error would therefore need to be established before the findings
of fact made by the FMCA, based on an assessment
of the respective credit of Mr
Holm and Mr Manna, were displaced on appeal.
The findings of fact
- I
am satisfied that the Federal Magistrate who heard the case at first instance
made a conscientious and careful analysis of the
evidence before him. He
explained in considerable detail the findings of fact which were made and the
way in which he assessed the
evidence of various witnesses including, in
particular, the evidence of Mr Holm and Mr Manna. He explained the reasons why
he accepted
the evidence of Mr Holm and rejected the evidence of Mr Manna. He
identified the factors which he took into account and explained
why they were
significant. Insofar as a preference was expressed for the evidence of Mr Holm
over the evidence of Mr Manna it seems
to me that the Federal Magistrate had an
undeniable advantage which constitutes a very significant obstacle to any
interference with
those findings on appeal unless the findings were inconsistent
with incontrovertible facts or the decision was contrary to compelling
inferences to be drawn from the evidence as a whole.
- However,
as the authorities make clear, the respect to be accorded to the findings of
fact does not prevent a re-assessment of inferences
drawn from them. So far as
inferences are concerned, it is well established that an appeal court is in as
good a position as a trial
judge to draw inferences from established facts and
should not be deflected from so doing. In the present case, for example, the
fact that Mr Holm’s evidence about the content of the disputed
conversation with Mr Manna was accepted (and Mr Manna’s
evidence rejected)
does not mean that Mr Holm’s subjective conclusions are necessarily to be
accepted, that inferences arising
from the established facts are not reviewable
or that legal conclusions based on the established facts, and the inferences to
be
drawn from them, do not remain a matter for debate.
- The
appellants made a series of attacks on particular findings of fact, and other
observations, made by the FMCA. The attacks were
directed to two issues: a
defence of Mr Manna’s evidence and credibility; and a contention that not
all of Mr Holm’s
evidence should be accepted. In particular, it was
argued that, in the light of other evidence, the FMCA should not have accepted
that any threat made by Mr Manna to Mr Holm was concerned with union
membership.
- I
shall shortly deal with the evidence about the conversation in greater detail.
However, the following points might be made now.
- The
FMCA was conscious of the need to be positively satisfied that it should accept
Mr Holm’s evidence, even if Mr Manna’s
evidence was rejected. The
FMCA said (at [44]):
44. ... it is not enough for me to discount the evidence of Mr Manna. I must be
positively, and comfortably, satisfied as to the
truth of Mr Holm’s
recollection of threatening words being spoken as
alleged.
- The
FMCA gave explicit consideration to whether it should accept those parts of Mr
Holm’s evidence to the effect that he had
been threatened by Mr Manna over
the specific issue of union membership. The FMCA recorded (at
[75]):
75. The submissions of the parties invited me to put at the forefront of my
consideration of the case whether Mr Holm’s account
of what was said to
him by Mr Manna was true. In particular, whether Mr Manna spoke words which in
their expressed terms threatened
to cause harm to Anything Concrete if it
continued with its contract without employing workers who were union
members.
- The
FMCA’s finding on this point was (at [84]):
- ...
I am comfortably satisfied that [Mr Manna] made threats in the terms attributed
to him by Mr Holm.
- It
will become clear from the discussion which follows that, so far as the written
record of the proceedings is concerned, and based
solely on that record, I would
have been less prepared than the FMCA to draw some of the inferences which
sustained the conclusion
that a breach of s 789 of the WR Act had been
committed. There are two questions in the case in respect of which answers were
given,
inferences were drawn and conclusions were reached which were, despite
the advantage possessed by the FMCA, in my respectful view
wrongly determined,
notwithstanding that Mr Holm’s evidence was accepted. As a result I would
not have found that the appellants
had breached s 789 of the WR Act.
Nevertheless, for reasons which it will be necessary to explain, those
conclusions do not result
in the appeal succeeding.
- The
first question is whether there was a sufficient foundation for a finding that
Mr Manna intended to coerce persons other than
Mr Holm to join the CFMEU and the
New South Wales branch. The FMCA found that Mr Manna intended to coerce Mr Holm
to procure the
union membership of individual sub-contractors engaged by
Anything Concrete. In my view that finding did not sustain a conclusion
that Mr
Manna intended to coerce those individual sub-contractors to join either the
CFMEU or the New South Wales branch. Section
789 of the WR Act required a
direct connection between a threat to take action against a person and an intent
to coerce that person
or a third person to become a member of an industrial
association. The intent to coerce must, in the case of a third person, have
been sufficiently directed to that third person even if the threatened action
was to be taken against another. In other words, even
accepting that Mr Manna
threatened to take action against Anything Concrete, for a breach of s 789 to be
proven it was necessary
to show that such a threat was intended to coerce third
persons, as well as Mr Holm, to join the CFMEU and the New South Wales
branch.
- The
second question is the more general one of whether it should have been concluded
by the FMCA that, when he spoke to Mr Holm,
Mr Manna intended to coerce Mr Holm
(or anybody else) to join the CFMEU and the New South Wales branch. In order to
examine the
second question it is relevant to enquire whether, on the evidence,
Mr Manna had a different objective altogether – namely,
to prevent
Anything Concrete from being accepted on the site at all.
- Further
discussion of these two questions must await a more detailed examination of the
evidence which was before the FMCA. Those
issues aside, I see no basis in the
present case to set aside or disregard the findings of fact made by the FMCA as
a result of its
assessment of the credit of Mr Holm and Mr Manna. To do so
would, in my view, be contrary to Fox v Percy because acceptance of Mr
Holm’s evidence about the words spoken by Mr Manna was not shown to be
contrary to incontrovertible
facts or uncontested
testimony.
The disputed conversation
- Mr
Manna’s version of the conversation with Mr Holm on 11 April 2006 may be
mentioned briefly in light of the fact that it
was rejected, together with his
credit. Mr Manna testified that he had a friendly conversation with Mr Holm
during which Mr Holm
enquired whether he could sign up about twelve persons as
members of the union. Mr Manna responded, according to his evidence, that
it
could not be done over the telephone and he would have to attend to it at the
site when work commenced. He said that Mr Holm
then announced, during the
conversation, that he did not really want the job and had decided not to do it.
- The
last element in this version of events matched the fact that, shortly after the
conversation between Mr Manna and Mr Holm, Mr
Symond directed that Conform
withdraw the contract from Anything Concrete. Mr Holm and his partners that
evening signed a document
accepting their discharge from the job. However,
under a private arrangement with Mr Younan made a short time later, Anything
Concrete
in fact commenced and continued to perform work for some time until
again Mr Symond intervened and the involvement of Anything Concrete
came to a
definite end on 10 May 2006.
- The
FMCA accepted Mr Holm’s version of events, both written and oral, without
relevant qualification. Mr Holm’s affidavit
contained the following
conversation:
- At
approximately 3.00pm, I pressed the button which automatically redialled the
missed call. A man answered the phone and we had
a conversation as follows:
Holm: ‘John from Anything Concrete, I just received a missed
call.’
Person: I’m [name of person indistinguishable] from the CFMEU.
I want to talk to you about the Toongabbie site. Are your workers employees
and are they in the union?
Holm: ‘Simon Symond said we only need to give a couple of members to
the union. All my workers are subcontractors anyway, not
employees.’
Person: ‘It’s illegal to do that. They need to be
employees with all the benefits. You need to be paying them super, wet
days, holidays, sick pay and site
allowance.’
Holm: ‘For the amount quoted for the Toongabbie project, the low price
that they got me down to did not allow for any of that.
Workers comp has just
been through my books. Everything is fine and they actually owe me money.
We’re being guided by our
accountant and the Department of Fair
Trading.’
Person: ‘If you proceed with the job and do not join the union, pay
your men the benefits, we’ll send you
bankrupt.’
Holm: ‘You can’t do that. Everything is legal in the way we
operate.’
- I
also recall at some point in the conversation the man raising with me the issue
of travel allowance. We had a conversation as follows:
Person: ‘You will have to pay the members travel
allowance.’
Holm: ‘It’s faster to go from The Entrance to Toongabbie than to
get across Sydney.’
Person: ‘I will get a bigger company in there to do the job, like
Concrete
Constructions.’
Holm: ‘That’s unfair. First the builder screws us and now
you.’
- I
cannot now recall the exact sequence of the remainder of the conversation that I
had with the man from the union. However, I recall
that during the conversation
and around the time that man said the words ‘I’ll send you
bankrupt’, he also said ‘We’ll have you audited
...’ and ‘We will screw you and make your life a
misery.’ I understood at the time that being ‘audited’
meant being audited by the tax department. When the man from the union
said
‘We’ll have you audited ...’, I responded as
follows:
‘We’ve just been audited by WorkCover and everything’s
fine. In fact, they owed us money. We’re running
the business according
to their guidelines.’
- The
conversation was a relatively long conversation for a mobile phone call, lasting
around 15 to 17 minutes.
- The
conversation with the man from the union became very heated. What sticks
firmly in my mind about the conversation was the man’s threat to bankrupt
me if I commenced working at the Site
and did not join the union. This
stuck firmly in my mind because I was concerned about the threat to bankrupt
Anything Concrete. I understood that my partners
in Anything Concrete had used
their house to get a loan to back the business. If the business failed and they
were unable to pay
the loan, they might have lost their house.
(Emphasis added)
- The
only words directly attributed to Mr Manna in Mr Holm’s affidavit, to the
effect that Mr Holm should become a member of
either the CFMEU or the New South
Wales branch were (set out above from paragraph 23): “If you proceed
with the job and do not join the union, pay your men the benefits, we’ll
send you bankrupt.” Regrettably, there appears to be some looseness
of language associated with the identification of who might “join the
union”.
It was not confined to Mr Holm or, as attributed by him, to Mr
Manna. In the written submissions filed on the appeal for the respondent
reference was made twice to demands or coercion that “Anything Concrete
join the union”. For the purpose of s 789 of
the WR Act it is necessary
to identify clearly both the person to whom an alleged threat was made (in this
case Mr Holm) and the
person intended thereby to be coerced into doing
something. I have some doubt whether, in context, the statement above, which
was
attributed to Mr Manna in Mr Holm’s affidavit, served to adequately
identify Mr Holm as an intended object of concern in relation
to union
membership.
- The
more general description given by Mr Holm (set above from paragraph 27 of his
affidavit) that he remembered that the threat was,
effectively, to bankrupt him
if he commenced working and did not join the union does not, when regard is had
to the overall context,
satisfactorily single out, or necessarily include, Mr
Holm either in my view. However, it is not necessary to attempt any final
resolution of those questions for the moment. As will become clear, I think
there are other reasons to conclude that, accepting
Mr Holm’s evidence, Mr
Manna probably had other objectives in mind than securing the union membership
of Mr Holm.
- Later
that day Mr Holm had a telephone conversation with Mr Younan. In his affidavit
Mr Holm said:
- Some
time later on the same day, I had a telephone conversation from [sic] Mr Younan.
I cannot now recall whether I called him or
he called me. We had a conversation
as follows:
Holm: ‘I received a call from the union. They’ve threatened to
bankrupt and audit me. They don’t want us to do the
job.’
Younan: ‘Your contract will probably be dissolved. But don’t
worry about it, I’ve found a way around it. You will still
be doing the
job for the same money. I’ll pay your workers direct into their bank
account. I’ll pay their super and
I’ll pay you the balance was
wages direct. I’ll just give the union a couple of members to keep them
happy. Just do
what Simon [Symond] wants. Simon will ring
you.
Holm: ‘Yes, no worries. I’ll talk to you
later.’
(Emphasis added)
- The
statement I have emphasised is an important one. This represented the first
reported complaint by Mr Holm about the conversation
between him and Mr Manna.
It suggests a different complexion to their conversation – namely that Mr
Manna may have been more
concerned with keeping Anything Concrete off the site
than with the question of union membership.
- The
following day (12 April 2006) Mr Holm met with Mr Younan at about 7am. In Mr
Holm’s affidavit he said:
- During
this meeting, I said to Mr Younan words as follows:
Holm: ‘I had a call from the union and they told me they wanted all
my boys to be members and that I can’t do the job for that
price and they will send me bankrupt. All my men have workplace agreements and
there’s
no allowance for union dues in the quote I gave
you.’
- Mr
Holm’s assertion of what he said to Mr Younan is conspicuous for its
absence of any suggestion that a demand was made that
Mr Holm should join the
union. Moreover, the reference to doing “the job for that price”
seems inapt to refer to the
question of union membership, as such, of those he
might engage. Their union fees were not his direct responsibility. Benefits
of
the kind provided to employees would be.
- Mr
Younan made a note of what Mr Holm told him. That note said in
part:
Meeting J Younan and John Holm.
...
3 During conversation between John Holm and Sammy (CFMEU)
...
- Sammy
said to John
- Anything
Concrete structure was not legal
...
- Sammy
said don’t waste your money. There is no way you will be on the site
unless all employees receive CBUS ACERT
[sic]
...
(Sammy is Mr Manna, CBUS is a superannuation scheme, ACIRT is a redundancy pay
arrangement)
- This
note was handwritten by Mr Younan and countersigned by Mr Holm. There was no
reference in it to union membership. I think
the inference is fairly available
that the concern attributed to Mr Manna was with the way Anything Concrete
proposed to operate,
i.e. by using individual subcontractors who would not have
contributions made on their behalf to CBUS or ACIRT. Those are matters
which
may be, but are not necessarily, questions related to union membership.
- Mr
Holm gave no additional oral evidence in chief. A good part of his
cross-examination was devoted to putting to him the version
of events advanced
by Mr Manna, which he consistently rejected. However the following matters were
put to him directly:
MR PEARCE: Can I suggest to you also that at no stage in that conversation did
Mr Manna tell you that you would have to join the
union?---Can you repeat the
question, please?
Can I suggest to you that at no stage in that telephone conversation did Mr
Manna tell you that you had to join the union?---That’s
incorrect.
Can I suggest to you that at no stage did he tell you that any of your employees
had to join the union?---No, that’s
incorrect.
Well, you didn’t have any employees, did you?---No. Why ask the
question?
Can I suggest to you that at no stage did he say to you that any of your
subcontractors would have to join the union?---He said everyone
would have to
join the union.
- Mr
Holm was also asked about a subsequent conversation he had with Mr Symonds and
Mr Younan. The relevance of this exchange is that
it permits a comparison with
what he said in his affidavit evidence about his conversation with Mr Younan on
12 April 2006. The
exchange was:
MR PEARCE: ... You didn’t say to Mr Symonds and Mr Younan in that
conversation that Mr Manna had demanded that you join the
union?---Not in that
conversation, but I’d said that to Mr Younan in a previous
conversation.
And you didn’t in that conversation say that to Mr Symonds or Mr Younan
that Mr Manna had said that your employees or your
subcontractors had to join
the union as well, did you?---Not in that conversation, but it was said
previously.
When do you say it was said previously?---When I rang up Joe and told him
I’d been threatened by the union.
- It
is clear from the extract from his affidavit which I set out earlier that Mr
Holm did not earlier assert that he had rung Mr Younan
and said anything to him
about being threatened over the question of union membership. He said Mr Manna
did not “want us to
do the job”. A little later in the
cross-examination Mr Holm was referred to Mr Younan’s written note which
Mr Holm
had also signed and the following exchange
occurred:
MR PEARCE: Now, have you got that annexure in front of
you?---Yes.
You’ve agreed that you were happy to sign
it?---Yes.
And it was true and correct?---Yes.
Do you agree with me that nowhere in that annexure is it said that Sammy Manna
told you that you had to join the CFMEU or join the
union?---It’s not
written here, but it was said.
Can I suggest to you that it’s not written in that annexure because you
didn’t say that to Mr Younan on 12 April?---No,
that was said.
That’s why they didn’t want us to do the
job.
and:
Can I suggest to you that at no stage did Mr Manna say to you you had to join
the union or your employees had to join the union,
employees/subcontractors?---No, he did say that.
If this was such an important aspect of the conversation, why didn’t you
correct annexure J and record it?---I wasn’t
writing it and that’s
what the whole conversation was about was us joining the
union.
and:
Perhaps he’d ring you because he was concerned about the conditions of
your subcontractor employees?---No, he wanted them to
be all
members.
(Emphasis added)
- It
is hard to accept Mr Holm’s outright rejection of Mr Manna’s
possible interest in the question of conditions and entitlements
in the light of
his affidavit. In his affidavit more was said (in what was attributed to Mr
Manna) about conditions and entitlements
than about union membership. Mr
Younan’s note did not record any concern about union membership but did
refer to conditions
and entitlements. I also confess to some doubt about the
overall reliability of Mr Holm’s evidence so far as it concerns the
suggestion that he was personally required to become a union member. He was in
the position of a working proprietor. I think it
inherently less likely that Mr
Manna would have been concerned with him, or about his conditions or
entitlements, than he was with
other persons engaged to do the job. Be that as
it may, the only direct evidence about this conversation which was accepted by
the
FMCA was the evidence given by Mr Holm. In his cross-examination, in
particular, Mr Holm was steadfast in his assertion that Mr
Manna required
everybody to be a union member.
- Counsel
for the appellants submitted that, despite the advantage enjoyed by the FMCA,
there was sufficient doubt about the reliability
of Mr Holm’s evidence
that, in light of the fact that the accusation against the appellants was a
serious one, it should not
have been accepted as establishing a breach of s 789
of the WR Act. However, some allowance must be made (and was made by the FMCA)
for the circumstances in which Mr Holm first reported his complaints about the
conversation to others. There is no reason to think
that Mr Holm had in mind,
when he recounted the substance of the conversation to Mr Younan, that
proceedings under s 789 of the WR
Act would be instituted as a result of the
conversation with Mr Manna or that the question of a threat about union
membership would
come under such close scrutiny. On the other hand, even on Mr
Manna’s (rejected) version of the conversation, the question
of union
membership was a central issue – Mr Manna ascribed it to Mr Holm as the
reason for the telephone call from Mr Holm.
In those circumstances it would be
artificial to suggest that there was no reason for the FMCA to think that union
membership was
discussed. Counsel for the appellants accepted that but argued
that there was, nevertheless, no basis to think that there was any
threat made
about union membership.
- As
I said earlier, the FMCA had an undoubted advantage. The Federal Magistrate was
impressed by Mr Holm. There were clearly, on
the facts found by the FMCA,
threats made by Mr Manna to Mr Holm about something. Notwithstanding my own
doubts about this aspect
of the matter it was, in my view, well within the range
of findings open to the FMCA on the evidence to conclude that Mr Manna made
a
threat connected with union membership. On that basis it must be accepted that
the overall effect of Mr Holm’s evidence
(as accepted by the FMCA) was
that Mr Manna said that both Mr Holm and those workers engaged by him should
“join the union”
if Anything Concrete commenced work on the
site.
- However,
this finding of fact does not conclude the question of whether a breach of s 789
of the WR Act was committed by Mr Manna
(and therefore the CFMEU and the New
South Wales branch).
Difficulties with the FMCA’s conclusions
- Notwithstanding
the FMCA’s acceptance of Mr Holm’s evidence, and my acceptance that
the words spoken by Mr Manna referred
sufficiently to the question of union
membership, there remain nevertheless the two issues I earlier identified which
depend on inferences
to be drawn from the accepted evidence, or on legal
conclusions reached in the case, rather than on findings of fact turning on
credit.
Third persons
- I
cannot find anywhere in Mr Holm’s evidence, or elsewhere, an adequate
foundation for the contention that Mr Manna intended
that what he said would
coerce persons (other than Mr Holm), who were engaged by Anything Concrete, to
become members of either the
CFMEU or the New South Wales branch. Accepting for
the moment that Mr Manna, by the threats he made against Mr Holm and his
partners,
intended to effectively negate any choice Mr Holm might have about the
question of union membership (a matter to which further attention
needs to be
given) I do not see how that circumstance could, in the present case at least,
provide sufficient evidence of an intention
to coerce others who had not at that
stage been identified to Mr Manna.
- The
link between Mr Manna’s actions and any illegitimate pressure on persons
who might have been engaged by Anything Concrete
to perform work on the project
was not established. There was no evidence about the persons who had been
engaged to work on the
project, if any had been by 11 April 2006. There was no
evidence of any communication to them of any statements made by Mr Manna,
much
less that such statements as were made to Mr Holm could represent pressure on
those persons with respect to the question of
union membership. Section 789 of
the WR Act required a direct connection between statements made to a person and
the application
of illegitimate pressure to that person or to third persons. It
is insufficient that the person to whom the statements were made
might have a
compelling reason to encourage union membership in a third party. The pressure
must be felt by the third party, even
though the threat was made directly to a
different person. It is necessary that some direct interest of the third party
be thereby
engaged in a way which effectively negates the choice of that third
party. Those conditions were not met in the present case.
- However,
although I think that the FMCA made an error in concluding that the respondent
had proved that Mr Manna had an intent to
coerce persons other than Mr Holm to
join either of the unions, in view of the way the case was pleaded that does not
mean necessarily
that no breach of s 789 of the WR Act occurred. The FMCA found
that s 789 had been breached both because of a proved intent to coerce
Mr Holm
and a proved intent to coerce other persons. Those allegations were made in the
alternative. No complaint was made about
that on the appeal. Ultimately, a
single breach of s 789 was found to have been established. That conclusion may
be sustained by
reference, if necessary, to coercion of Mr Holm only. Counsel
for the appellant accepted as much.
- This
identified error, therefore, provides no basis upon which to uphold the appeal,
in whole or in part.
Mr Manna’s objective
- Although
I accept the findings of the FMCA that Mr Manna’s statements to Mr Holm
involved threats which were connected with
the question of union membership, and
that Mr Manna stated to Mr Holm that his workers should join the union if
Anything Concrete
was to commence work on the site, that is not to say that the
statements made to Mr Holm, when weighed with all the other evidence,
actually
disclosed any intent by Mr Manna to coerce Mr Holm (or anybody else) to become a
union member. I do not think it could
have been safely concluded that Mr Manna
had that intent. To have that intent, Mr Manna would need to have accepted, as
a real and
not merely theoretical possibility, that Anything Concrete would be
allowed to do the job. In my view the evidence as a whole demonstrated
that Mr
Manna’s objective was to prevent Mr Holm, and the Anything Concrete
partnership, from doing the job at all. By the
evening of 11 April 2006 it
appeared as though, with the co-operation of Mr Symond, Mr Manna had achieved
that objective. I see
no evidence that Mr Manna was prepared to contemplate an
alternative position whereby he accepted Anything Concrete on the job with
everybody a union member. There was no hint of that in the conversations he had
with others and that was not the overall impression
he left on Mr Holm.
- As
I have already indicated, Mr Holm’s evidence was not simply that Mr Manna
was intent on securing union membership of persons
engaged by Anything Concrete.
By the end of the conversation at least, Mr Holm had come to the view that Mr
Manna was opposed to
Anything Concrete doing the work at all. Although, in his
evidence given for the purpose of the proceedings, Mr Holm connected the
threats
of bankruptcy, audit and “misery” to the requirement for union
membership, that is not the effect of his evidence
about his telephone call to
Mr Younan later on the same day or the advice which he gave the following day to
Mr Younan. Mr Younan’s
final two points in his handwritten note were as
follows:
- Sammy
Manna from C.F.M.E.U. kept insisting Anything Concrete would not be on the job
otherwise Anything Concrete would go bankrupt.
- According
to John he was making implications that if Anything Concrete was on site (12
Cornelia St Toongabbie) he (Sammy Manna) would
make life difficult.
- That
appreciation of Mr Manna’s position (that Mr Manna did not want Anything
Concrete on the site at all) is consistent with
other evidence given by Mr
Younan about the position stated by Mr Manna in the earlier meeting with Mr
Symond. In his affidavit
Mr Younan gave the following evidence:
- Also
during the meeting, Mr Manna and I had a conversation as follows:
Manna: ‘Who’s doing the concreting on the
job?’
Younan: ‘Anything Concrete is doing the
job’
Manna: ‘Why are you using
them?’
Younan: ‘They did some work for me up at the Entrance. I find them to
be reliable and their price is
right.’
Manna: ‘They’re no good. They can’t be legit and be
doing the work for you at the price they are and travelling all the way from
the
Central Coast and working for you at such a cheap rate. There is no way all
his men are on wages, CBUS or workers comp. Here are a number of concrete
companies who you should try. Can
you write this down? You might find these
companies more reputable. I suggest you ring one of these companies and get
them to do the work for
you.’
- Mr
Manna then dictated a few concrete company names and some of their telephone
numbers to me which I wrote down straight away on
the sheet of paper that I was
using at the meeting to take notes. That sheet of paper is annexure
‘G’ to my affidavit.
The conversation then continued as
follows:
Younan: ‘I’ll look into it. However, there is already an
agreement between Conform and Anything
Concrete.’
Manna (grinning): ‘I’m sure there’s some way
around that. These are better
companies.’
Symond: ‘We need to get John [Mr Holm] on the line. There are
serious issues here that need to be
addressed.’
(Emphasis added)
- This
conversation occurred before the discussion between Mr Manna and Mr Holm. Mr
Younan’s evidence about the meeting on 12
April 2006 with Mr Holm included
the following:
- On
Wednesday, 12 April 2006 I left home at about 5.00am and drove to The Entrance.
I arrived at The Entrance at about 6.15am. I
met Mr Holm at the Decon site at
Fairview Street, The Entrance at about 7.00am. Mr Holm and I were standing at
the back of my ute
where I had parked in the street directly opposite the Decon
site. Mr Holm and I had a conversation as follows:
Younan: ‘Why have the unions got it in for
you?’
Holm: ‘I really don’t know. I have offered to give him all the
paper work that I have given
you.’
Younan: ‘OK. Why didn’t you ring Sammy Manna back as you said
you would?’
Holm: ‘What are you talking about? I did ring him
back.’
Younan: ‘I heard you say yesterday that you were going to ring him not
long after he had spoken to
you.’
- Mr
Holm appeared shocked. He showed me the dialled number call register on his
mobile phone. I checked Mr Manna’s business
card (which I had with me at
the time) and the number Mr Holm showed me was identical to the mobile number on
Mr Manna’s business
card. We continued our conversation as follows:
Holm: ‘I rang him ten minutes afterwards. Why, what’s the
problem?’
Younan: ‘Symond had rung Sammy Manna and Sammy told him he had not
spoken to you.’
Holm: ‘That’s not true, I spoke to Manna and offered to supply
any documentation he wanted. He didn’t seem to be concerned about
anything I could give. By our conversation, he made it clear that
irrespective of what paper work I supply, I won’t be doing that
job.’
Younan: ‘Hang on a sec, this is very important. Explain to me what had
happened. I would like to write this down and have someone
witness
it.’
- At
that point I grabbed a note pad from my car and placed it on the tail gate of my
ute. I wrote on the pad in point form Mr Holm’s
recollection of his
conversation with Mr Manna the previous day. I tried to write down word for
word what Mr Holm said to me but
I missed words here and there because I was
writing while he was speaking and I was also asking him questions.
- When
Mr Holm had finished speaking, I handed him what I had written on the note pad
and said:
Younan: ‘Check what I have written and see if this is an accurate
account of your conversation with Sammy
Manna.’
Mr Holm took the 2 page document that I gave him, read it and said:
‘That’s fine’. Our conversation continued as
follows:
Younan: ‘Are you happy to sign
it?’
Holm: ‘Yes, I have no
problems.’
(Emphasis added)
- In
the evening of 11 April 2006, after the conversation with Mr Manna, Mr Holm and
his partners agreed to the formal withdrawal of
their contract with Conform.
They did so in response to the insistence of Mr Symond, who was giving effect to
the wishes of Mr Manna.
They later agreed with Mr Younan, at his request, that
they would do the work in a less formal setting but there is no evidence
that Mr
Manna or Mr Symond became aware of that arrangement at the time. As I earlier
mentioned, this arrangement itself came to
an end on 10 May 2006. That was
because Mr Symond, who was opposed to the use of Anything Concrete in light of
Mr Manna’s
resistance, became aware that they were being used and
expressed dissatisfaction with their work. Mr Younan, in the circumstances,
agreed to terminate the arrangement completely.
- Giving
full weight to the factual findings in the FMCA I am nevertheless left with a
clear impression from the evidence that Mr Manna
was not engaged in any form of
negotiation with Mr Holm, or stating any requirement, about the conditions on
which Anything Concrete
would be acceptable to work on the project. He was not
intent on securing Mr Holm’s membership or the membership of the
workforce.
Mr Manna’s objective appears to have been to prevent them
working on the project at all. That conclusion seems to me to be
consistent
with other findings made by the FMCA.
- At
paragraph 51 of the judgment of the FMCA the following conclusions were
expressed:
- On
all the evidence before me, and taking into account the absence of any evidence
presented by the respondents or put to Mr Holm
in cross-examination giving any
substance to the vague complaints made by Mr Manna to Mr Symond and Mr Younan, I
find it probable
that complaints about Anything Concrete were made by Mr Manna
at the meeting, but that they were specious, cloaking the real objection of
the two union officials to the employment of Anything Concrete on the project.
This suggests that
Mr Manna had a real objection to Anything Concrete which
he wished to present to Mr Holm privately over the phone, and a secret purpose
in wishing to speak to him in the absence of
witnesses. In my opinion, the
making of unfounded complaints about Anything Concrete at the site meeting lends
support, and not
the contrary, to Mr Holm’s account of an attempted
coercion of him and his workers to join the union or to abandon the contract
if
they did not.
(Emphasis added)
- In
my respectful view, the final conclusion expressed in this paragraph does not
follow sufficiently from the earlier discussion.
Mr Manna’s “real
objection” to Anything Concrete does not give support to the idea of
attempted coercion of Mr
Holm, or those engaged by him, to join the union. Mr
Manna’s objection appears to me to be more consistent with the idea that
their union membership was not Mr Manna’s immediate concern. Mr Manna, it
would appear, was not contemplating that Anything
Concrete would come on the
site with its workers being union members but was, rather, intent that Anything
Concrete not be on the
site at all. He preferred that someone else be engaged
to do the work.
- In
my view the evidence as a whole, therefore, does not support the thesis that Mr
Manna had a particular interest in securing the
union membership of Mr Holm or
of the persons he engaged to do the work. Mr Manna’s declared position
was that Anything Concrete
should not be engaged on the job at all. He made
that clear to Mr Symond and Mr Younan. It is an impression which he clearly
left
with Mr Holm who transmitted it to Mr Younan. The arrangements which were
made subsequently are consistent with a desire by Mr Holm
and Mr Younan to find
a way around that problem. They were not, it would seem to me, directing their
energies to avoiding the necessity
for union membership but trying to deal with
a circumstance where Mr Manna was opposed to Anything Concrete being on the job
at all.
Despite error the appeal fails
- The
conclusion reached by the FMCA about Mr Manna’s intent (a necessary
ingredient in proving a breach of s 789) involved a
process of inferential
reasoning rather than a finding of primary facts. Mr Manna’s words, as
attributed to him by Mr Holm,
are not direct evidence of an intent to coerce
– that is the inference or conclusion which is drawn from the evidence. I
accept,
as counsel for the respondent suggested, that the FMCA enjoyed some
advantages, not only in finding facts but in drawing inferences
and conclusions
from them. Nevertheless I would not, in ordinary circumstances, have felt it
necessary to defer to those conclusions
in light of my own view of the evidence
despite the conscientious and thorough way in which the FMCA explained the
findings which
it made.
- However,
the view of the evidence which has impressed itself upon me was eschewed at the
trial and explicitly disavowed on the appeal.
- At
the trial the following exchange occurred during final
submissions:
FEDERAL MAGISTRATE: Do you say I could draw conclusions that there were threats
for reasons other than union membership?
MR PEARCE: Your Honour, I’m not going to say that but there were
certainly – I do say that Mr Manna had - - -
FEDERAL MAGISTRATE: Is that a finding I should
make?
MR PEARCE: No, your Honour, I’m not going to say that but Mr Manna
certainly had concerns, very big concerns for reasons other
than union
membership. In fact - -
- On
the appeal counsel for the appellants made it clear (more than once) that the
appellants’ case on the appeal rested only
on the contention that Mr
Holm’s evidence should not be accepted. If the finding of the FMCA to
accept Mr Holm’s evidence
was not disturbed, counsel made it clear that
the appeal was lost so far as it concerned the CFMEU and Mr Manna. (The
position of
the New South Wales branch raises one further issue to be
addressed.)
- In
the circumstances, despite my own assessment of the facts as found, I feel no
alternative but to allow the result of the appeal
to follow the forensic choices
made by the appellants at first instance and on the appeal. As a result, the
matters to which I have
drawn attention do not afford a reason to uphold the
appeal.
The reverse onus
- Section
809 of the WR Act provided:
809 Proof not required of the reason for, or the intention of,
conduct
(1) If:
(a) in an application under section 807 relating to a person’s conduct, it
is alleged that the conduct was, or is being, carried
out for a particular
reason or with a particular intent; and
(b) for the person to carry out the conduct for that reason or with that intent
would constitute a contravention of this Part;
it is presumed, in proceedings under this Division arising from the application,
that the conduct was, or is being, carried out for
that reason or with that
intent, unless the person proves
otherwise.
(2) This section does not apply in relation to the granting of an interim
injunction.
- The
presumption erected by s 809 applied in the present proceedings on the face of
that provision. The FMCA did not feel it necessary
to rely upon it. In view of
the conclusions expressed above it is not necessary for me to address the
question whether it was necessary
to plead reliance on s 809 to have the benefit
of it, as the appellants contended. In view of the concession to which I have
referred
there is no foundation to disturb the finding of the FMCA that a breach
of s 789 of the WR Act was established without the need to
refer to s
809.
The New South Wales branch
- It
was argued by the appellants that the New South Wales branch could not be liable
under the regime established by Part 16 of the
WR Act (which includes s 789).
The submission was based upon the contention that the WR Act provided that
liability under s 789
would only attach to the CFMEU and Mr Manna. Section 789
appeared in Division 3 of Part 16 of the WR Act. Sections 782 and 783
(in
Division 2 of Part 16) provided as follows:
782 Application
Divisions 3 to 8 of this Part apply only to the extent provided in this
Part.
783 Organisations
This Part applies
to:
(a) conduct by an organisation; and
(b) conduct by an officer of an organisation acting in that capacity; and
(c) conduct carried out with a purpose or intent relating to a person’s
membership or non-membership of an
organisation.
- The
CFMEU is an organisation within the meaning of s 783(a) and Mr Manna was an
officer of the organisation within the meaning of
s 783(b). The contention was,
accordingly, that no conduct attributed to the New South Wales branch (an
industrial association but
not an organisation) was conduct to which s 789
applied. In my view the argument should not be accepted for two reasons.
- First,
s 783(c) was also apt to refer to the conduct carried out by Mr Manna. His
conduct was taken to be the conduct of the New
South Wales branch if it was
carried out by him as an “officer of [the New South Wales branch] acting
in that capacity”
(s 779(2) of the WR Act). On the evidence Mr Manna had
been an officer of the CFMEU and the New South Wales branch almost continuously
for about 29 years. In that capacity he concerned himself with questions of
union membership. I do not accept, on the facts of
the present case, that he
could not have been acting in the capacity of an officer of the New South Wales
branch when he did something
with respect to membership of the CFMEU or vice
versa (cf. Hadgkiss v Sunland Constructions Pty Ltd [2007] FCA 346; (2007) 158 FCR 193;
(2007) 161 IR 317 at [45]- [46]). In the present case it seems clear that the
two associations were involved in a joint enterprise so far as the encouragement
of
union membership was concerned and Mr Manna was their joint officer for that
joint purpose.
- Secondly,
as contended by a Notice of Contention filed in the appeal, a sufficient
connection to the New South Wales branch, having
regard to Mr Manna’s
conduct which is to be imputed to it, arises from s 785 of the WR Act, which
applies Part 16 of the WR
Act as follows:
785 Constitutional corporations
(1) This Part applies to the following conduct:
.....
(f) conduct carried out with intent to directly affect a person in the capacity
of:
...
(ii) a contractor, or prospective contractor, of a constitutional
corporation;
- The
partners of Anything Concrete contracted with Conform, which itself took a
contract from North East. The matters pleaded in
the amended statement of claim
alleged sufficient material facts which would, if proved, sustain a conclusion
that Conform and North
East were each constitutional corporations. The evidence
sufficiently proved those facts. That was sufficient to engage the operation
of
s 785(1)(f)(ii) with the result that the New South Wales branch was not outside
the operation of Part 16 of the WR Act.
- As
a result, there is no separate basis to dismiss the proceedings against the New
South Wales branch.
Conclusion
- A
challenge to the penalties imposed was withdrawn by the written submissions
filed for the appellants. The arguments upon which
the appellants rely having
been rejected, the appeal should be dismissed.
I certify that the preceding eighty (80)
numbered paragraphs are a true copy of the Reasons for Judgment herein of the
Honourable
Justice Buchanan. |
Associate:
Dated: 10 February 2011
IN THE FEDERAL COURT OF AUSTRALIA
|
|
|
NSW DISTRICT REGISTRY
|
|
|
FAIR WORK DIVISION
|
NSD 1272 of 2009
|
|
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
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BETWEEN:
|
CONSTRUCTION, FORESTRY, MINING & ENERGY UNION
First
Appellant
CONSTRUCTION, FORESTRY, MINING & ENERGY UNION (NSW
BRANCH)
Second Appellant
SALVATORE MANNA
Third Appellant
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|
AND:
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GREGORY CHARLES ALFRED
Respondent
|
|
JUDGES:
|
BUCHANAN, FLICK AND KATZMANN JJ
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|
DATE:
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10 FEBRUARY 2011
|
|
PLACE:
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SYDNEY
|
REASONS FOR JUDGMENT
FLICK J:
- This
is an appeal from two decisions of a Federal Magistrate, the first given on
10 July 2009 (Alfred v Construction, Forestry, Mining & Energy Union
[2009] FMCA 613, 185 IR 325); the second given on 20 October 2009
(Alfred v Construction, Forestry, Mining & Energy Union (No 2) [2009]
FMCA 1003).
- The
Notice of Appeal was filed in this Court on 10 November 2009 and the
Respondent filed a Notice of Contention on 18 December 2009.
- The
opportunity has been taken to read the reasons for decision of Buchanan J. His
Honour’s careful and detailed review of
the evidence advanced before the
Federal Magistrate removes any necessity to again do so.
- Concurrence
is expressed with the conclusion of Buchanan J that the appeal is to be
dismissed.
- Less
reservation is experienced, however, in reaching that conclusion than that
expressed by Buchanan J, primarily because of two
inter-related considerations,
namely:
- the necessity
for the Appellants to establish “appellable error” on the
part of the Federal Magistrate and their failure to do so; and
- the manner in
which the proceeding was conducted before the Federal Magistrate and the
confined issues raised for resolution on appeal.
- The
jurisdiction presently being exercised in this appeal is that conferred by
s 24(1)(d) of the Federal Court of Australia Act 1976 (Cth), namely
the jurisdiction to hear and determine appeals from judgments of the Federal
Magistrates Court.
- That
jurisdiction is in the nature of a complete re-hearing: Farrington v Deputy
Commissioner of Taxation [2002] FCA 1013, 50 ATR 429 per Kenny J;
Kowalski v Domestic Violence Crisis Service [2005] FCA 12 at [51] per
Madgwick J. See also: Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd
[2001] FCA 1833, 117 FCR 424.
- The
jurisdiction nevertheless remains an appellate jurisdiction which is to be
exercised for the correction of error: cf. Dovuro Pty Ltd v Wilkins
[2000] FCA 1902 at [38], [2000] FCA 1902; 105 FCR 476 at 487 per Branson J; Knight v Beyond
Properties Pty Ltd [2007] FCAFC 170 at [20], [2007] FCAFC 170; 242 ALR 586 at 591. And, when
conducting the re-hearing, it was common ground that the approach which this
Court should pursue when reviewing
the findings of fact as made by the Federal
Magistrate was the approach as summarised in the majority judgment of Gleeson
CJ, Gummow
and Kirby JJ in Fox v Percy [2003] HCA 22 at [30] and [31][2003] HCA 22; ,
214 CLR 118 at 128 to 129. It was recognised in that decision that
“mistakes ... can occur at trial in the comprehension, recollection and
evaluation of evidence”: Fox v Percy, supra at [24]. A
“real review”, it was said, must be undertaken on appeal: at
[25]. The task entrusted to the appellate court is to conduct “a real
rehearing”: CSR Ltd v Della Maddalena [2006] HCA 1 at [16], [2006] HCA 1; 224
ALR 1 at 7 per Kirby J. See also: Kovan Engineering (Aust) Pty Ltd v Gold Peg
International Pty Ltd [2006] FCAFC 117 at [117] per Allsop J.
- In
undertaking that task, the Court is to determine whether the findings made are
correct but it is not the function of the appellate
court “merely to
substitute its own view, as if it were again performing the function of the
trial judge”: cf. Wade v Australian Railway Historical Society
(South Australian Division) (t/as Steamranger) [2000] SASC 233 at [38], [2000] SASC 233; 77
SASR 221 at 227 per Doyle CJ (Duggan and Lander JJ concurring). Nor is it
appropriate to invite an appellate court “simply to revisit the
relevant evidence ... and then contend that the court should reach a different
conclusion ... In an appeal by
way of rehearing, error must be demonstrated for
the appellate court to be entitled to disturb the decision of the primary
decision-maker...
Furthermore, the manner in which the case is conducted by the
parties on appeal ought not depart from the manner in which the case
was
conducted at trial, and generally, the appeal arena is not the appropriate forum
to raise new arguments”: cf. Tasmanian Sandstone Quarries Pty Ltd v
Legalcom Pty Ltd [2010] SASCFC 6 at [34] per Gray J (Nyland and
Kourakis JJ agreeing).
- The
passage which assumed particular importance in the hearing of the present appeal
was that of Gleeson CJ, Gummow and Kirby JJ
in Fox v Percy – namely
the ability to revisit on appeal a finding which is “glaringly
improbable” or “contrary to compelling
inferences”: Fox v Percy at [29]. See also: Li Pei Ye
v Crown Ltd [2004] FCAFC 8 at [104] to [107] per Sackville, Selway and
Lander JJ; Jardein Pty Ltd v Stathakis [2007] FCAFC 148 at [23] to [24]
per North, Weinberg and Middleton JJ. “Consistent with the principles
of appellate review”, findings of fact “cannot be set aside
on appeal merely by identifying evidence which, if accepted, was capable of
supporting contrary findings”: Yousif v Commonwealth Bank of
Australia [2010] FCAFC 8 at [34], 193 IR 212 at 221 per Kenny, Tracey and
Jagot JJ. Leveraged Equities Ltd v Goodridge [2011] FCAFC 3 provides an
instance where a finding made by the primary Judge was set aside. Jacobson J
(with whom Finkelstein and
Stone JJ agreed) there concluded that “there
were incontrovertible facts and uncontested testimony which demonstrates that
the primary Judge’s conclusion was erroneous”: at [391]. His
Honour was of the view that “this was a case where contemporary
materials, objectively established facts and the apparent logic of events
pointed only in one direction”: at [405].
- The
acceptance by the Federal Magistrate in the present proceeding of the account
given by Mr Holm of the 11 April 2006 conversation
– and, in
particular, that part of the conversation when Mr Manna told Mr Holm that he
would send him bankrupt “if you proceed with the job and do not join
the union” – was said by the Appellants to be
“glaringly improbable” or “contrary to compelling
inferences” by reason of:
- the contrary
evidence of Mr Manna;
- inferences which
were said to be consistent with the evidence of Mr Manna; and
- inferences which
were said to be inconsistent with the evidence of Mr
Holm.
Importantly, before the Federal Magistrate, no
finding of fact was sought by the now Appellants that the words attributed to Mr
Manna
“were threats for reasons other than union membership”.
And, on appeal, the essential issue to be resolved reduced itself to the Federal
Magistrate’s acceptance of the evidence
of Mr Holm in preference to that
of Mr Manna. That was said to be the “appellable error” that
occurred.
- None
of the arguments now advanced for resolution on appeal are accepted. Indeed, it
is respectfully considered that such submissions
as were advanced on behalf of
the Appellants do not go beyond the Appellants seeking a further opportunity to
make further submissions
with the hope that a different conclusion may be
reached by a Court differently constituted.
- No
appellable error is discernible.
- The
expressions used by Gleeson CJ, Gummow and Kirby JJ in Fox v Percy
– namely findings that may be “glaringly improbable” or
“contrary to compelling inferences” – were obviously
expressions deliberately employed to emphasise the “quite rare
case” in which an appellate court would interfere with factual
findings. But those expressions are not to be elevated to the status
of a
statutorily prescribed standard to be universally applied. Every case must
necessarily depend upon its own facts. It would nevertheless
be an error of
principle for an appellate court to interfere with factual findings made by a
Federal Magistrate merely because it
may have drawn different inferences. Even
if an appellate court may be inclined to draw different inferences, or would
indeed itself
have made different findings to those made by a primary Judge,
this does not make the contrary findings made at first instance findings
that
are “glaringly improbable” or (for present purposes) findings
which expose appellable error.
- The
forum in which factual findings are to be made is normally before a court at
first instance. It is in this forum that all parties
have the opportunity to
advance submissions which they consider best advance their respective interests.
Reasons for decision and
findings of fact are then made founded upon the
submissions advanced. An appeal – even an appeal by way of re-hearing
–
is not to be used as the vehicle whereby the losing party at first
instance can thereafter take the benefit of such findings of fact
as are made in
its favour and avail itself of a further opportunity to then make more detailed
submissions directed to those findings
which it wishes to impugn. The
opportunity to advance all submissions as to the findings which should be made
is an opportunity to
be availed of at first instance; it is not an opportunity
reserved only to be pursued on appeal. The benefit of hindsight may provide
the
window whereby a party may perceive deficiencies in its case as previously
advanced and have those deficiencies brought into
the light. But hindsight does
not necessarily expose “appellable error”. Nor is an appeal
in the nature of a re-hearing an opportunity to attempt to re-characterise the
facts which were presented
for resolution at first instance.
- For
the purposes of the present appeal, it may be accepted that a failure on the
part of a judge to refer to evidence of particular
significance (perhaps even
evidence not referred to by the parties in their submissions) may potentially
expose appellable error.
Appellable error may also be exposed where
“reliance has been placed on key evidence wrongly admitted or key
evidence wrongly excluded when such evidence is pivotal to the result”
(Devers v Kindilan Society [2010] FCAFC 72 at [48], [2010] FCAFC 72; 269 ALR 404 at 415
per Ryan, Mansfield and McKerracher JJ) or by a failure to refer to a submission
of particular significance.
- Counsel
for the Appellants in the present case, with great respect, advanced all such
submissions as could possibly be advanced in
support of the appeal. Those
submissions contended, for example, that there was inconsistency in the evidence
where there was (upon
analysis) no such inconsistency. The submissions again
sought to emphasise the fact that Mr Holm in his evidence before the Federal
Magistrate gave an account of what was said on 11 April 2006 but made no
reference to some of those facts in a note signed on
12 April 2006. The
submissions also sought to take issue with particular statements made by the
Federal Magistrate and to contend
that those statements were devoid of
evidential support.
- But
the Appellants, with respect, fell well short of pointing to
“incontrovertible facts or uncontested testimony [demonstrating] that
the trial judge’s conclusions are erroneous” or that his
findings are “glaringly improbable” or “contrary to
compelling inferences”: Fox v Percy at [29].
- One
simple fact remains an insurmountable obstacle to success on the part of the
Appellants – the Federal Magistrate accepted
Mr Holm’s account of
the 11 April 2006 conversation and rejected the account and the evidence of
Mr Manna. That was a
decision open to the Federal Magistrate and was a decision
supported by the inferences he drew from the other evidence before him.
- It
is thus also concluded that the appeal should be dismissed.
|
I certify that the preceding twenty (20) numbered paragraphs are a true
copy of the Reasons for Judgment herein of the Honourable
Justice Flick.
|
Associate:
Dated: 10 February 2011
|
IN THE FEDERAL COURT OF AUSTRALIA
|
|
|
NEW SOUTH WALES DISTRICT REGISTRY
|
|
|
FAIR WORK DIVISION
|
NSD 1272 of 2009
|
|
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
|
|
BETWEEN:
|
CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION
First
Appellant
CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION (NSW
BRANCH)
Second Appellant
SALVATORE MANNA
Third Appellant
|
|
AND:
|
GREGORY CHARLES ALFRED
Respondent
|
|
JUDGES:
|
BUCHANAN, FLICK AND KATZMANN JJ
|
|
DATE:
|
10 FEBRUARY 2011
|
|
PLACE:
|
SYDNEY
|
REASONS FOR JUDGMENT
KATZMANN J:
- In
the Federal Magistrates Court Gregory Charles Alfred (“the
prosecutor”) applied for penalties and other orders for
alleged breaches
by the appellants of s 789 of the Workplace Relations Act 1996 (Cth)
(“the Act”) on 11 April 2006.
- At
the relevant time s 789 of the Act (which appears in Division 3 of Part 16)
provided:
789 Coercion
(1) A person must not organise or take, or threaten to organise or take, any
action against another person with intent to coerce
the other person or a third
person:
(a) to become, or not become, an officer or member of an industrial association;
or
(b) to remain, or cease to be, an officer or member of an industrial
association.
(2) Subsection (1) is a civil remedy provision.
- Section
782 provided that Divisions 3 to 8 of Part 16 apply only to the extent provided
in Part 16. Section 783 relevantly provided:
783 Organisations
This Part applies to:
(a) conduct by an organisation; and
(b) conduct by an officer of an organisation acting in that capacity; and
(c) conduct carried out with a purpose or intent relating to a person’s
membership or non-membership of an organisation.
- The
prosecutor pleaded that the third appellant, Mr Manna, an employee of both the
first and second appellants (the federal union
– “the CFMEU”
– and its NSW State branch respectively), threatened Mr Holm with the
intention of coercing
him and/or his employees and/or subcontractors to become
members of the CFMEU and/or its State branch. The relevant pleading appears
in
paragraph 6 of the judgment of Buchanan J. The evidence of the threat was given
by Mr Holm in an affidavit. He said that he
received a telephone call on 11
April 2006 while he was driving. He said he did not answer the phone but called
the missed number
a few minutes later and spoke to a person whom he later
identified as Mr Manna. The detail of the conversation appears in paragraph
37
of Buchanan J’s judgment.
- There
was no dispute that Mr Holm telephoned Mr Manna and had a conversation with him
that afternoon. The dispute turned on the
substance of the conversation. Mr
Manna denied uttering any threat.
- The
Federal Magistrate preferred the evidence of Mr Holm, made favourable findings
about his credibility and demeanour, and unfavourable
findings about the
credibility and demeanour of Mr Manna. He held that Mr Manna contravened s 789
in a mobile phone conversation
by threatening Mr Holm with the words:
“If you proceed with the job and do not join the union, pay your men
the benefits, we’ll send you bankrupt”, “have you
audited” and “screw you and make your life a misery”.
- The
first and second appellants were also held to be liable for the conduct of Mr
Manna by the operation of s 779(2) of the Act,
which deems conduct by an officer
or agent of an industrial association acting in that capacity to be conduct of
the association.
- Following
a separate hearing his Honour went on to impose fines on all three appellants.
- The
appellants appeal against the convictions. An appeal on penalty was not
pressed.
- As
Flick J observes at [87] of his reasons, the appeal is in the nature of a
rehearing. A rehearing is not a completely fresh hearing
of all the evidence.
Error must still be shown in the decision of the primary judge. The Court is
bound to conduct a real review
of the trial and the judge’s reasons. If,
making proper allowances for the advantages enjoyed by the trial judge, the
Court
finds error, it is not merely authorised but obliged to come to its own
decision, including drawing the proper inferences from undisputed
or established
facts. The mere fact that the trial judge favoured the witnesses of one party
over those of another cannot prevent
an appellate court from performing its
statutory function. That will be so even in the case of credibility findings
where “incontrovertible
facts” or uncontested testimony prove them
to be wrong. “Ritual incantation” about witness credibility (or
demeanour)
does not relieve the appellate court of its responsibility. What is
more,
[i]n some, quite rare, cases, although the facts fall short of being
“incontrovertible”, an appellate conclusion may
be reached that the
decision at trial is “glaringly improbable” or “contrary to
compelling inferences” in
the case. In such circumstances, the appellate
court is not relieved of its statutory functions by the fact that the trial
judge
has, expressly or implicitly, reached a conclusion influenced by an
opinion concerning the credibility of witnesses. In such a case,
making all due
allowance for the advantages available to the trial judge, the appellate court
must “not shrink from giving
effect” to its own
conclusion.
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 at 126-128, [2003] HCA 22, and
especially at [28]-[29] per Gleeson CJ, Gummow and Kirby JJ. The question,
here, is whether this is one of those “quite
rare” cases.
- The
appellants’ argument is that the Federal Magistrate’s conclusion
that Mr Manna threatened Mr Holm in the mobile phone
conversation by using the
words Mr Holm said he used was “glaringly improbable and/or contrary to
compelling inferences”.
It is true, as Buchanan J points out (at [15] of
his Honour’s reasons), that the resolution of the conflict between
the evidence of Mr Holm and the evidence of Mr Manna depended very substantially
on an
assessment of the credit of each of them. But it did not only rest on the
Federal Magistrate’s assessment of the two protagonists.
It also depended
on the evidence given by an independent witness, Mr Younan, whose company had
contracted with Mr Holm’s,
to do the concreting work on the
Toongabbie site and whom the prosecutor called to corroborate Mr Holm.
- In
essence, the appellants’ case is that Mr Holm should not have been
believed because his evidence was not only inconsistent
with the evidence of Mr
Manna but also with the evidence of Mr Younan, particularly his uncontested
evidence of a contemporaneous
record he made of what Mr Holm told him the day
after the alleged threat had been uttered. Counsel submitted that that evidence
made Mr Holm’s account “glaringly improbable”. He also
submitted that the Federal Magistrate’s conclusions
were affected by a
number of appealable errors.
- In
my respectful opinion, the Federal Magistrate did fall into error. The errors
largely relate to the way in which his Honour dealt
with the evidence of Mr
Younan. That evidence did support Mr Holm’s evidence but only up to a
point.
- Mr
Younan gave evidence that he met with Mr Holm at about 7.00 am the day after the
conversation between Mr Manna and Mr Holm. He
said he asked Mr Holm:
“Why have the unions got it in for you?” He said that Mr
Holm replied: “I really don’t know. I have offered to give him
all the paper work that I have given you.” He said that he then asked
him why he had not telephoned Mr Manna. Mr Holm protested that he had and
showed Mr Younan his
mobile phone to prove that the call had been made. Then Mr
Younan said this exchange occurred:
Holm: ... I spoke to Manna and offered to supply any documentation he wanted.
He didn’t seem to be concerned about anything
I could give. By our
conversation, he made it clear that irrespective of what paper work I supply, I
won’t be doing that job.
Younan: Hang on a sec, this is very important. Explain to me what had happened.
I would like to write this down and have someone
witness
it.
- Mr
Younan said he tried to write down what Mr Holm was saying “word for
word” but “missed words here and there”. In
cross-examination he said he decided to write down what Mr Holm was telling him
because it seemed important and he “smelled a rat”. He said
he felt that “someone was – going to – well, someone was
trying to get shafted”.
- The
memorandum was in the following terms:
12.04.06
Meeting J Younan & John Holm
- John
Rang Sammy Manna on 11.04.06 at about 2pm which was 5-10 mins after S Symond
rang John and asked John to ring Sammy (CFMEU) straight
away.
- Sammy
spoke to S Symond and said John did not ring straight away but about 1½ hrs
later.
- During
conversation between John Holm and Sammy (CFMEU) which lasted about 20 mins (can
be verified by phone records).
- Sammy
said to John
(a) Anything Concrete structure was not legal.
(b) John said to Sammy he as (Anything Concrete) was legal as workers comp did
an audit early 2005 and it was found that Anything
Concrete was entitled for a
refund
(c) John told Sammy that he was happy to pay for the CFMEU (Union) to do an
audit.
(d) Sammy said don’t waste your money, there is no way you will be on the
site unless all employees receive CBUS, ACERT
[sic].
(e) He said it would cost a lot more to get the concreting done than what you
quoted.
(f) Sammy also told John that he couldn’t pay the travelling time from
Central Coast to Sydney.
(g) John said it takes less time for us to get to Toongabbie from the Central
Coast than it does to get across Sydney.
- Sammy
Manna from CFMEU kept insisting Anything Concrete would not be on the job
otherwise Anything Concrete would go bankrupt.
- According
to John he was making implications that if Anything Concrete was on site (12
Cornelia St Toongabbie) he (Sammy Manna) would
make life difficult.
- In
his affidavit Mr Younan said that after Mr Holm had finished speaking he handed
him what he had written and asked him to check
it “and see if this is
an accurate account of your conversation with Sammy Manna”. He said
Mr Holm then took the two page document, read it and said “that’s
fine”. He asked him whether he was happy to sign it and Mr Holm said
“Yes, I have no problems”. He then (with Mr Holm’s
consent) arranged for the memorandum to be witnessed.
- In
his affidavit Mr Holm stated that he said to Mr Younan words to the following
effect:
I had a call from the union and they told me they wanted all my boys to be
members and that I can’t do the job for that price
and they will send me
bankrupt. All my men have workplace agreements and there’s no allowance
for union dues in the quote
I gave you.
- In
his oral evidence Mr Holm said that at the meeting with Mr Younan he informed
him that Mr Manna had told him he had to join the union. He insisted
“that’s what it was all about. That’s why we were doing
the letter” (presumably referring to the memorandum).
- Despite
the absence in the memorandum of any reference to a desire, let alone a demand,
for union membership, Mr Holm agreed that
he said he had no problems with it.
He signed it having read it and after Mr Younan had asked him to check what had
been written
and see if it was an accurate account of the conversation with Mr
Manna, although his evidence was that he read it as Mr Younan was
writing it.
- The
errors appear in the following passages from his Honour’s reasons. I
shall deal with them in sequence. The first appears
in paragraph 66.
- The
respondents’ submissions gave great emphasis to the absence in Mr
Younan’s memorandum of express reference to Mr Manna
conditioning his
threats to Mr Holm upon a refusal to join the union. I have given careful
consideration to the significance of
this point, before accepting Mr
Holm’s evidence as to what was said to him by Mr Manna. Nowhere was it
suggested in cross examination of Mr Younan that Mr Holm made no mention to him
that Mr Manna’s threats included
statements demanding that Mr Holm and his
workers should join the union, and I would not draw any conclusions as to
how Mr Younan might have responded to this point, if it had been squarely put to
him.
(Emphasis added)
- There
was no obligation on counsel for the appellants to put to Mr Younan in
cross-examination that Mr Holm made no mention to him
that Mr Manna demanded
that he and his workers join the union because nowhere in his evidence had he
indicated otherwise. If there
was any obligation, it was on the prosecutor to
explain the apparent inconsistency between the two accounts.
- More
than one error appears in paragraph 67.
- I
have above referred to Mr Holm’s evidence that he made known to Mr Younan
that Mr Manna’s threats arose out of a demand
that Mr Holm and his workers
should join the union, notwithstanding that the relevant words he now attributes
to Mr Manna are not
recorded in Mr Younan’s memorandum. There is a
suggestion in the memorandum of an attempted coercion to join the union and pay
union “extra” benefits, in
paragraph 4(d), since “ACIRT”
is a union sponsored redundancy payments trust, and “C.B.U.S” is a
union supported
superannuation fund. There is also a clear indication in
paragraphs 5 and 6 that Mr Manna’s threats arose out of Mr Holm’s
refusal to accept that his workers should receive benefits which would follow
from union membership. I therefore do not accept that there is any direct
inconsistency between Mr Younan’s memorandum and Mr Holm’s evidence
to the Court. To the contrary, I consider that it provides general support for
Mr Holm’s evidence.
(Emphasis added)
- This
was not the only time his Honour referred to “union extras”. At
[50] of his reasons he said that Mr Holm
maintained his perception that the only grievance the union had about him and
his firm was that its workers were not members of the
union receiving
“union extras”. It was not put to Mr Holm in cross-examination
that, in fact, the union had a reason
to want his firm excluded from the site,
other than the absence from its workforce of union members receiving
“extra benefits”.
- Presumably
the use of inverted commas at that point was designed to reflect the oral
evidence Mr Holm had given of his belief that
the entitlements he said Mr Manna
referred to were benefits of union membership. Further on in his reasons his
Honour abandoned
the use of the inverted commas, accepting Mr Holm’s
belief as fact. That is clear not only from the passage at [67] set out
above.
At [87], for example, he found that Mr Manna “had offered Mr Holm an
alternative method of placating the union by his
becoming a member and paying
union benefits” (emphasis added). This was one of the matters upon
which he relied to conclude that “the proscribed intention ... was
a
“substantial or operative” intention at the time the relevant words
were spoken”. And he also relied upon it
to conclude that Mr Manna
intended not only to coerce Mr Holm to join the union but also his workers,
saying:
In my opinion, Mr Manna intended to prevent concreting workers being employed on
the project who did not receive the union supported
benefits, and it seems
likely that he also expected their employer to procure their joining the union
as part of the benefits which
he was promoting.
- His
Honour took it that ACIRT (an acronym for Australian Construction Industry
Redundancy Trust) and CBUS (an industry superannuation
fund) were benefits paid
only to union members. This was a misconception. It appears to derive from an
answer Mr Holm gave in cross-examination
when referring to a statement he said
he made to Mr Manna, that for the price he had signed the contract he
couldn’t do the
work “with all the union’s
extras”, which, when pressed he said were “Cert [sic,
presumably ACIRT] and C+BUS [sic] and to make all men employees”. He
later added: “site allowance, travel time and wet days and things like
that.” At one point he said “union extras” are
“the fees you’ve got to pay when the union comes on the
job”.
- This
Court was told that such benefits are paid to all workers regardless of union
membership. And so was his Honour. Mr Pearce,
who appeared for the appellants
before us and in the Court below, explained to the Federal
Magistrate:
CBus is the superannuation, your Honour, and ACIRT are redundancy payments. And
I can assure your Honour that non-unionists get
CBus and ACIRT, you don’t
have to be a member of the union to get it. In fact you don’t even have
to work in the building
industry to be a member of CBus as I told your Honour
the other day. It’s got nothing to do with union membership. It’s
about superannuation.
- Counsel
for the prosecutor did not suggest otherwise.
- There
was some evidence to support this. Enterprise agreements entered between the
union and a number of different concreting contractors
were in evidence. They
included terms requiring the payment of such benefits and they bound, not merely
the union, but all employees
of the companies engaged in any of the occupations,
callings or industries specified in the National Building and Construction
Industry
Award.
- Thus,
the record Mr Younan made of the demand allegedly made on Mr Holm was that the
workers had to receive certain lawful entitlements,
or at least entitlements
payable to employees. It was, in my view, incapable of giving rise to the
suggestion the Federal Magistrate
drew from it “of an attempted coercion
to join the union and pay union ‘extra’ benefits”.
- The
proposition that paragraphs 5 and 6 of the memorandum provide “a clear
indication” that the threats arose out of
Mr Holm’s refusal to
accept that his workers should receive benefits which would follow from union
membership is demonstrably
false.
- His
Honour later said (at [68]) that Mr Holm “at all times was firmly of the
belief that it was obvious to everyone, and to
Mr Younan and Mr Symond in
particular, that Mr Manna’s threats were made with an intent to coerce Mr
Holm and his workers to
join the union or abandon the project”. His
Honour then asserted that that conviction “probably meant that this was
not something he thought necessary to dwell on nor explain to Mr Younan in
detail at any stage”. The trouble with this explanation
is twofold.
First, Mr Holm’s evidence was that he had spoken to Mr Younan twice about
the subject, once in a telephone call
the same day Mr Manna made the threats and
the next day when the memorandum was taken and that the requirement of union
membership
was what it was “all about”. Under
cross-examination he claimed to have told Mr Younan of it in a previous
conversation. But the only previous conversation
about which he gave evidence
did not include any reference to it. The account in his affidavit of the first
conversation (which,
as Buchanan J points out at [41] of his reasons, is the
first reported complaint about Mr Manna’s call) does not mention a
demand
for union membership. Secondly, Mr Younan’s evidence did not reflect any
knowledge that the threat concerned union
membership. Mr Symond did not give
evidence and no explanation was given for his absence.
- The
Federal Magistrate was very favourably impressed with Mr Holm’s demeanour
and not at all impressed with Mr Manna’s,
and due weight must be given to
his Honour’s impressions. But, as the plurality noted in Fox v Percy
at [30], demeanour is not everything and there are dangers about too
readily drawing conclusions about the truthfulness and reliability of
witnesses
solely or mainly from their appearances. A proper evaluation of Mr Holm’s
evidence required an accurate comparison
with Mr Younan’s. The Federal
Magistrate recognised this when he said at [44] of his
reasons:
... if the factual dispute between Mr Holm and Mr Manna is resolved by
reference to the credibility of their separate presentation
of their evidence, I
would confidently resolve it in favour of Mr Holm. However, as I have
noted above, it is not enough for
me to discount the evidence of Mr Manna.
I must be positively, and comfortably, satisfied as to the truth of
Mr Holm’s
recollection of threatening words being spoken as alleged.
I can only achieve that satisfaction if, as well as finding Mr Holm
to be a
convincing witness, I accept that his evidence is consistent with
“contemporary materials, objectively established facts and the apparent
logic of events”. In particular, I need to consider whether it is
supported by, or inconsistent with, the evidence of the corroborative witness
called
by the applicant, and his contemporaneously prepared
memoranda....
(Emphasis in original)
- Having
considered Mr Younan’s evidence his Honour said:
- Assessing
the evidence of both witnesses about their meeting at The Entrance on 12 April
2006, I conclude that Mr Holm at all times
was firmly of the belief that it was
obvious to everyone, and to Mr Younan and Mr Symond in particular, that Mr
Manna’s threats
were made with an intent to coerce Mr Holm and his workers
to join the union or abandon the project. This conviction probably meant
that
this was not something he thought necessary to dwell on nor explain to Mr Younan
in detail at any stage.
- Mr
Younan’s opinions over the relevant period about the union’s
purposes for objecting to Anything Concrete were not explored
in evidence, and
are unclear. During all the discussions to which he was privy on 11 April 2006,
he seems to have been left unsure
about the true reasons for the union hostility
to Anything Concrete, and he was keen to get Mr Holm’s account of this
from
him. Mr Younan’s apparent concern in making a memorandum was to
record a chronology of events and the threats which had been made, not
their expressed or implicit intent or motivation on the part of Mr Manna and his
union. This is clear from his memorandum.
He was not legally trained, and is
unlikely to have understood that the stated or apparent reasons for Mr
Manna’s threats
was something which should be recorded.
(Emphasis added)
- Mr
Younan’s opinions about the union’s purposes would have been
inadmissible. Why his Honour raised the subject is obscure.
If, however, Mr
Younan was keen to get Mr Holm’s account of those reasons from him, as his
Honour noted, and if part of Mr
Younan’s concern in making the memorandum
was to record “the threats which had been made”, it is surprising,
to
say the least, that he did not make any note or give any evidence that Mr
Holm told him the threat had involved a demand for union
membership. On the
prosecutor’s case and on Mr Holm’s evidence, this was not merely the
reason for the threat but part
of its text. Indeed, the prosecutor relied upon
the words Mr Holm attributed to Mr Manna to show that the appellants had the
necessary
intent. What is more, his Honour took the view that “the case
essentially turns upon my satisfaction that these words were
actually said by Mr
Manna”.
- His
Honour went on to conclude:
- In
all these circumstances, I am not persuaded that Mr Holm did not convey to Mr
Younan at their meeting on 12 April 2006 that Mr
Manna’s threats were
accompanied by words which indicated that they were conditioned upon Anything
Concrete remaining in the
project without its workers joining the union. I
would not find that the record made by Mr Younan establishes that words
expressing
this were not spoken by Mr Manna to Mr Holm, nor reject Mr
Holm’s evidence that the words he attributes to Mr Manna were spoken
to
him.
- This
arguably reverses the onus of proof.
- If,
as Mr Holm said in evidence “that’s what the whole conversation
was about was about us [sic] joining the union”, it is
difficult to understand why Mr Younan would not have adverted to it in his
statement to the prosecutor, his affidavit
and, in particular, his
contemporaneous note. The references to employee benefits do not assist because
it was common ground that
the two of them discussed such things and, contrary to
what the Federal Magistrate mistakenly believed, employee benefits were
unrelated
to union membership. It is possible that Mr Holm’s evidence in
this regard was an exaggeration. It is also possible that
it was an honest
mistake. On the other hand, Mr Younan did not create a transcript of the
conversation he had with Mr Holm. As
I mentioned earlier, he said he tried to
write down what he was saying “word for word” but
“missed words here and there”. In cross-examination he said
he was as careful as he could be to write down the words but did not write
shorthand. Still,
he agreed that the note was “a complete
record” of the “important” things that were said.
It is conceivable that he did not regard the question of union membership as
important. That would
explain why he did not include such a reference in the
first place. But it does not explain why, when Mr Holm checked it, he
did not see to it that it included what he regarded was at the heart of
the threat. This evidence has troubled me. Ultimately, however, I have
concluded that the inconsistency
between Mr Holm’s and Mr Younan’s
evidence is more apparent than real. It is entirely plausible that if, as Mr
Holm
told his Honour, he believed that CBUS and ACIRT, travel time and other
benefits payable to employees were “union extras”
(and it was not
suggested to him in cross-examination that that evidence was dishonest), he also
believed at the time that the memorandum
captured the essence of the threat.
- There
is, therefore, a rational explanation for the absence in the memorandum of the
reference to union membership. Furthermore,
in critical respects, as his Honour
observed, Mr Younan’s account was broadly consistent with Mr Holm’s
account, certainly
more consistent with it than with Mr Manna’s, who had
denied making any threat at all. As his Honour said at [71] of his
reasons:
What is made irrefutably clear from Mr Younan’s notes, and from my
acceptance of Mr Younan as a disinterested witness whose
notes can be accepted
as contemporaneous records, is that Mr Manna’s disclaimer of having made
any threats to Mr Holm to induce
his abandonment of his contract cannot be
accepted.
- Counsel
for the appellants did not challenge any part of Mr Younan’s evidence, but
in cross-examination Mr Manna denied, not
only Mr Holm’s version of the
conversation with him, but also Mr Younan’s evidence about other
conversations to which
he was a party. The Federal Magistrate’s
conclusion that Mr Manna’s evidence was “entirely unreliable”
was
a conclusion open to him on the evidence. The evidence Mr Younan gave about
the conversation with Mr Holm was not inconsistent with
Mr Holm’s account
and it was generally corroborative of it, although it did not, in terms, provide
corroboration of the union
content of the threat.
- The
appellants also complained about the Federal Magistrate’s reasons at [53].
There his Honour said he was inclined to prefer
Mr Holm’s recollection
where it differed from Mr Younan’s because Mr Holm was “more
confident in his recollections
than Mr Younan and also because Mr Younan
participated in much longer and more numerous discussions that day and it is
quite possible
that Mr Younan’s memory of what was said in particular
conversations might be confused”. The appellants submitted “there
was no evidence whatsoever of other conversations ... and the proposition was
never tested by Smith FM with Younan or indeed Holm”.
I take his
Honour’s finding to refer to discussions about the matters relevant to the
proceeding. In my view, the finding
that Mr Younan participated in much longer
and more numerous discussions that day was open from the affidavit evidence,
although
there was no exploration of the number and length of Mr Holm’s
discussions. The speculation at the end of the sentence is
no more than a
commonsense observation.
- The
appellants also submitted that it was not open to the Federal Magistrate to
find, as he did (at [57]), that Mr Younan’s
evidence “probably
compressed a series of conversations” and he was “involved in very
protracted discussions with
Mr Symond and others, throughout the afternoon,
about how to deal with the union’s opposition to Anything
Concrete”. They contended that the only evidence to which His
Honour referred that might support the finding is confined to “the one
conversation
on 11 April”. But it is obvious from Mr Younan’s
evidence that there were a number of conversations or discussions that
afternoon. In my view this finding was also open to his Honour.
- I
have given careful consideration to the other alleged errors to which the
appellants pointed in their written submissions. In
my opinion, however, none
of the other challenges to his Honour’s conclusions, even if accepted, is
sufficient to overcome
the very great advantage the Federal Magistrate enjoyed
over this Court in resolving the conflict between the competing versions
of
events.
- For
these reasons, in spite of the errors to which I have referred, I am not
satisfied that the appellants have shown that the finding
of the Federal
Magistrate that Mr Manna threatened Mr Holm by using the words Mr Holm
attributed to him in his affidavit was either
glaringly improbable or contrary
to compelling inferences. Nor am I satisfied that the finding was demonstrably
wrong in the face
of “incontrovertible facts” or uncontested
testimony. Counsel for the appellants conceded that if the Court did not
disturb this finding, the appeal must fail.
- I
agree with Buchanan and Flick JJ on the subject of the liability of the New
South Wales branch and on the question of Mr Manna’s
objective and
respectfully adopt the reasons of Buchanan J at [58]-[71] and at [75]-[78].
- I,
therefore, agree that the appeal must be dismissed.
|
I certify that the preceding forty-six (46) numbered paragraphs are a true
copy of the Reasons for Judgment herein of the Honourable
Justice
Katzmann.
|
Associate:
Dated: 10 February 2011
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