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Radisich v Molina & Ors (No.2) [2011] FMCA 66 (11 February 2011)

Last Updated: 14 February 2011

FEDERAL MAGISTRATES COURT OF AUSTRALIA

RADISICH v MOLINA & ORS (No.2)

INDUSTRIAL LAW – Civil penalty proceedings – coercion.

INDUSTRIAL LAW – Civil penalty proceedings – false or misleading statements about membership.


Alfred v CFMEU & Ors (2009) 185 IR 325; [2009] FMCA 613
Attwood v Wangka Maya Pilbara Aboriginal Language Centre (2010) 196 IR 178; [2010] FMCA 342
Bahonko v Sterjov (2007) 167 IR 43; [2007] FCA 1244
Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336
Buckingham v KSN Engineering Pty Ltd & Anor (2008) 177 IR 427; [2008] FMCA 546
Construction, Forestry, Mining and Energy Union v Hadgkiss (2007) 169 FCR 151; [2007] FCAFC 197
Gurnett v Macquarie Stevedore Co (1955) 55 SR (NSW) 243
Hadgkiss v Construction, Forestry, Mining and Energy Union (No 3) (2007) 160 IR 263; [2007] FCA 87
Hayward v Rohd Four Pty Ltd (2008) 177 IR 212; [2008] FMCA 1490
Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298
National Tertiary Education Industry Union v Commonwealth of Australia (2002) 117 FCR 114; [2002] FCA 441
Radisich v Molina & Ors [2009] FMCA 1121
Re Dellow’s Will Trusts [1964] 1 WLR 451
Rejfek v McElroy [1965] HCA 46; (1965) 112 CLR 517
Rojas v Esselte Australia Pty Ltd (No.2) (2008) 177 IR 306; [2008] FCA 1585
Seven Network (Operations) Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (2001) 109 FCR 378; [2001] FCA 456
Stuart-Mahoney v CFMEU & Anor (No.2) [2008] FMCA 1015
Williams v Construction, Forestry, Mining and Energy Union (2009) 179 IR 441; [2009] FCA 223

Applicant:
JEFFREY JOSEPH RADISICH

First Respondent:
WALTER VINICIO MOLINA

Second Respondent:
CONSTRUCTION, FORESTRY, MINING & ENERGY UNION OF WORKERS

Third Respondent:
CONSTRUCTION, FORESTRY, MINING & ENERGY UNION

File Number:
PEG 125 of 2009

Judgment of:
Lucev FM

Hearing dates:
3, 4 November and 3 December 2009

Date of Last Submission:
3 December 2009

Delivered at:
Perth

Delivered on:
11 February 2011

REPRESENTATION

Counsel for the Applicant:
Mr R L Hooker

Solicitors for the Applicant:
Lavan Legal

Counsel for the First Respondent:
Mr G MacLean

Solicitor for the First Respondent:
Mr G MacLean

Counsel for the Second and Third Respondents:
Mr J Nicholas

Solicitor for the Second and Third Respondents:
Mr J Nicholas, CFMEU

DECLARATION

(1) On 19 March 2008 each of the first, second and third respondents contravened s.790(1)(a) of the Workplace Relations Act 1996 (Cth) by making to persons working for Southern Wire Pty Ltd false and misleading statements that those persons had to be members of the second respondent or third respondent, or both of them.

ORDER

(2) That the matter be adjourned to a directions hearing at 9.00am on 18 February 2011.
FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT PERTH

PEG 125 of 2009

JEFFREY JOSEPH RADISICH

Applicant


And


WALTER VINICIO MOLINA

First Respondent

CONSTRUCTION, FORESTRY, MINING & ENERGY UNION OF WORKERS

Second Respondent


CONSTRUCTION, FORESTRY, MINING & ENERGY UNION

Third Respondent


REASONS FOR JUDGMENT

Application

  1. The application in this matter alleges that:
    1. the first respondent, Walter Vinicio Molina;[1]
    2. the second respondent, the Construction, Forestry, Mining & Energy Union of Workers;[2] and
    1. the third respondent, the Construction, Forestry, Mining & Energy Union,[3]

have contravened:

  1. section 789(1)(a) of the Workplace Relations Act 1996 (Cth);[4] and
  2. section 790(1)(a)(i) of the WR Act.
  1. The applicant, Jeffrey Joseph Radisich,[5] seeks:
    1. under s.807(1)(c) of the WR Act, declarations; and
    2. under s.807(1)(a) of the WR Act, the imposition of pecuniary penalties against Mr Molina, the CFMEUW and the CFMEU,

in respect of each alleged contravention of the WR Act.

  1. Each of the alleged contraventions is in respect of a civil penalty provision of the WR Act.[6]

Legislative provisions and applicant’s allegations of contravening conduct

Allegation of coercion

  1. Section 789 of the WR Act provides as follows:
  2. Mr Radisich alleges that Mr Molina’s conduct:
    1. was against;
    2. adversely affected; and
    1. was carried out with intent to adversely affect,

Southern Wire in its capacity as a constitutional corporation and was, further or alternatively, conduct:

  1. that directly affected; and
  2. was carried out with intent to directly affect,

the Southern Wire Workers in their capacity as employees or prospective employees of Southern Wire.

  1. Mr Radisich alleges that Mr Molina, acting on behalf of the CFMEUW and CFMEU, took action against other people with intent to coerce those other people to become members of an industrial association, in contravention of s.789(1)(a) of the WR Act. That action is particularised as follows:
    1. Mr Molina taking action against the Southern Wire Workers in the crib hut on the site[7] on 19 March 2008;
    2. Mr Molina’s action being the making of the statements pleaded in circumstances where the Southern Wire Workers were not performing any work and Mr Molina represented to them that they were to become members of an industrial association, or not permitted to return to work unless they became members of an industrial association;
    1. that in taking that action, Mr Molina acted with intent to coerce the Southern Wire Workers who were not members of one or more industrial associations, namely the CFMEUW, further or alternatively the CFMEU, to become members of that, or those industrial associations; and
    1. that intent is to be inferred from the content of what was said by Mr Molina at the time and place, and in the context in which, that content was said.
  2. In respect of s.789 of the WR Act proof of the requisite intent is necessary.[8] The authorities with respect to the phrase “with intent to coerce” in s.789 of the WR Act make it clear that:
    1. it is necessary that a threat of action involving an intention to coerce must have the capacity for compulsion on its recipient;
    2. the capacity for compulsion on its recipient must enable the Court to conclude that it was intended that pressure be exerted which, in a practical sense, was such as to negate choice;
    1. the pressure must involve conduct that is unlawful, illegitimate or unconscionable;
    1. the maker of the threats must have actual knowledge of the circumstances that make the conduct coercive; and
    2. where the threats or conduct have several purposes or objectives, the proscribed intent or reason must be a substantial or operative intention in the making of the threats or the carrying out of the conduct.[9]

False or misleading representation

  1. Section 790 of the WR Act provides as follows:
  2. Mr Radisich also alleges that Mr Molina, acting on behalf of the CFMEUW and the CFMEU, made a false, alternatively a misleading, representation about the obligation of other people to become members of an industrial association, contrary to s.790(1)(a)(i) of the WR Act.
  3. Mr Radisich says that:
    1. Mr Molina represented to the Southern Wire Workers in the crib hut on the Site, and to Mr Sivewright in his telephone conversation with him on 19 March 2008, that:

(i) the Southern Wire Workers were not permitted to work on the Site without being members of an industrial association, namely the CFMEUW and/or the CFMEU;

(ii) further or alternatively, the Southern Wire Workers were obliged to or required to become members of an industrial association, namely the CFMEUW and/or the CFMEU;[10]

  1. the fact that certain Southern Wire Workers were not members of an industrial association was no impediment to them performing any work on the Site, or at all;
  1. the Southern Wire Workers were not obliged to or required to become members of any industrial association; and
  1. the Representations were therefore false, alternatively misleading.
  1. In Hadgkiss v Construction, Forestry, Mining and Energy Union (No 3)[11] the Federal Court considered the meaning of “false and misleading” in what was then s.298SC(c) of the WR Act and observed as follows:
  2. There is no necessity to prove knowledge or intent to found a contravention of s.790 of the WR Act.[13]

Onus of proof

  1. In relation to both alleged contraventions Mr Radisich relies on s.809 of the WR Act which relevantly provides as follows:
  2. In relation to the onus of proof, having reviewed judgments of the Federal Court in Bahonko v Sterjov[14] and Rojas v Esselte Australia Pty Ltd (No 2),[15] and of this Court in Buckingham v KSN Engineering Pty Ltd & Anor,[16] this Court observed in Hayward v Rohd Four Pty Ltd (2008)[17] that:
  3. Albeit that the judgment in Hayward related to provisions concerning termination of employment the principles with respect to the relevant onus of proof are the same.

Vicarious liability

  1. Mr Radisich alleges that by reason of the matters pleaded, and by operation of s.826(2) of the WR Act, both the CFMEUW and CFMEU were:
    1. themselves engaged in;
    2. alternatively, persons involved in, within the meaning of s.728(2) of the WR Act,

the alleged contraventions of ss.789(1)(a) and 790(1)(a)(i) of the WR Act.

  1. Section 826(2) of the WR Act provides as follows:
  2. Section 728 of the WR Act provides as follows:

(2) For this purpose, a person is involved in a contravention of a civil remedy provision if, and only if, the person:

(a) has aided, abetted, counselled or procured the contravention; or
(b) has induced the contravention, whether by threats or promises or otherwise; or
(c) has been in any way, by act or omission, directly or indirectly, knowingly concerned in or party to the contravention; or
(d) has conspired with others to effect the contravention.
  1. Also relevant is s.779(2) and (3) of the WR Act which provides as follows:

Penalties and remedies

  1. Section 807 of the WR Act provides as follows:

Standing

  1. There is no dispute that Mr Radisich, by reason of his being at all material times:
    1. an “inspector” under s.57(1) of the Building and Construction Industry Improvement Act 2005 (Cth);[19] and
    2. a “workplace inspector” within the meaning of s.167 of the WR Act,

has standing to commence these proceedings under s.807(1) and (4)(a) of the WR Act.

The status of the respondents

  1. It is admitted that Mr Molina is and was at all material times:
    1. a member of the CFMEUW;
    2. a member of the CFMEU;
    1. an employed organiser and officer of the CFMEUW for the purposes of s.779 of the WR Act; and
    1. an agent of the CFMEU.
  2. Mr Molina, the CFMEUW and CFMEU all admit that Mr Molina was acting at the time within the scope of his actual or approved authority but deny that Mr Molina’s alleged conduct occurred.
  3. The CFMEUW has admitted that it is and was at all material times:
    1. an “industrial organisation” registered under the provisions of the Industrial Relations Act 1979 (WA);[20]
    2. under s.60 of the IR Act, a body corporate able to be sued in its registered name; and
    1. an “industrial association” within the meaning of s.779 of the WR Act.
  4. The CFMEU has admitted that is and was at all material times:
    1. an “organisation” within the meaning of s.4 of the WR Act;
    2. a body corporate able to be sued in its own name; and
    1. an “industrial association” within the meaning of s.779 of the WR Act.

Status of corporations

  1. There is no dispute that at all material times:
    1. Southern Wire Pty Ltd[21] was:
      1. registered under the Corporations Act 2001 (Cth) in Australia as a proprietary company limited by shares; and
      2. a “constitutional corporation” as defined in s.4 of the WR Act; and
    2. Australand Holdings Limited[22] was registered under the Corporations Act 2001 (Cth) in Australia as a publicly listed trading company limited by shares.

Contractual and employment arrangements on Site

  1. There is no dispute that:
    1. at all material times Southern Wire was engaged under a contract with Australand Holdings entitled the “Australand – CIP – Subcontract Conditions – Coles Group RDC, Horrie Miller Drive, Perth Airport, Western Australia – Fencing and Gates”;[23]
    2. in compliance with certain terms of the Southern Wire Contract, Southern Wire undertook the supply and installation of external fencing in and around areas, buildings and structures at the Site, that being the Coles-Myer Regional Distribution Centre at Horrie Miller Driver, Perth Airport; and
    1. Southern Wire employed certain people on contracts of service, alternatively, engaged certain people on contracts for services, to enable Southern Wire to meet its contractual obligations under the Southern Wire Contract.

The events of 19 March 2008

Mr Molina approaches Southern Wire Workers

  1. There is no dispute that Mr Molina was on Site on the morning of 19 March 2008, wearing a shirt and jacket each of which bore logos of the CFMEU, and that he had a conversation with certain persons working for Southern Wire.
  2. It is the form and content of that conversation, and subsequent conversations and events which flowed from that conversation, which form the nub of the dispute in this matter.

Initial discussion – who was involved?

  1. Mr Radisich asserts that there was an initial discussion at about 10.30am with the following Southern Wire Workers in the crib hut on the Site:
    1. Andrew Bella;
    2. Bradley Douthie;
    1. Greg Sodkin; and
    1. Ali Reza Bolouri.[24]
  2. The evidence does not make precisely clear who was involved in the initial discussion. There is no doubt that Mr Bella and Mr Douthie were involved, and both were called to give evidence. In the evidence of Mr Bella and Mr Douthie there was reference made to “Greg” and to “Reza”. Mr Molina made reference to a worker with a foreign-sounding name, and said that there were four or five workers present. For present purposes it suffices to observe that only two of the workers, Mr Bella and Mr Douthie were called, that neither party called any of the other persons present, save, of course, for the fact that Mr Molina gave evidence about his involvement, and that, ultimately, it is not especially material as to whether there were two, three, four or five Southern Wire Workers present.

The initial conversation

  1. Mr Radisich alleges that there was an initial conversation in which:
    1. Mr Molina introduced himself to Messrs Bella, Douthie, Sodkin and Bolouri;
    2. Mr Molina asked the Southern Wire Workers if they were “in the union”;
    1. some of the Southern Wire Workers replied to Mr Molina that they were not in the union;
    1. Mr Molina then said “Well, we’ve got to sort this out”;
    2. Mr Bella then said “Well, there’s not much to sort out – we’ve told you we don’t want to join the union, we’re quite happy”;
    3. Mr Molina then repeated to the Southern Wire Workers then present that “You have to join the union otherwise you can’t work on this site”;
    4. Mr Molina then referred to certain claimed benefits for the Southern Wire Workers in joining “the union” and then said “Well, we gotta sort this stuff out before you go back to work”;
    5. Mr Bella then said “Well, legally you can’t stop us from working and you can’t make us join the union”; and
    6. Mr Molina replied that “Well, you are right there but you can’t work on this site until we sort it out”.
  2. Mr Bella’s account of the conversation with Mr Molina indicates that Mr Molina came to the Site sheds, and that the following occurred:
    1. Mr Molina said that he was from the Union and wanted to know who was in the Union or not;
    2. Mr Bella said he wasn’t in the Union;
    1. Mr Molina responded that there was a problem and “we’ve got to sort it out”;
    1. Mr Bella responded that he had said that he was happy and that he did not want to join the Union, and that he had “every right to join or not to join, so I’m happy not to join”;
    2. Mr Molina responded by saying “Well, there’s a problem, we’ve got to sort it out, do you know what I mean? It’s a union site”;
    3. Mr Bella did not recall whether Mr Molina said anything on the subject of union membership;
    4. Mr Bella then rang Mr Sivewright and told him that Mr Molina was on Site, and “is trying to make us join the union to work on this site”; and
    5. Mr Sivewright “reassured us” that he had spoken to “his own lawyer” and that “we do not have to join the union. Like, we’ve got every right to and it’s our decision.”[25]
  3. When asked what detail he went into with Mr Sivewright about what Mr Molina had said, Mr Bella responded that he had said that “there was a problem that we weren’t in the union and he wanted to sort it out before we went back to work.”[26]
  4. Mr Bella’s evidence-in-chief was in fact summarised in a series of subsequent questions and answers, as follows:
  5. After Mr Molina had a telephone conversation with Mr Sivewright, the details of which appear below, Mr Bella rang the Site Foreman, a Mr Edwards, who was not on Site, but who told him to phone Mr Orso, the Site Manager.[28] Significantly, Mr Edwards told Mr Bella to “Just wait there until Jason [Mr Orso] comes, and he’ll sort it out.”[29]
  6. According to Mr Bella, Mr Orso did not arrive for another 45 minutes, and during that 45 minutes Mr Molina continued to speak with Mr Bella, and the other Southern Wire Workers, who were in the Site sheds. Mr Molina’s tone did not change, according to Mr Bella, during this period.[30] During this period Mr Douthie’s boots were the subject of some conversation. Apparently, Mr Douthie’s boot had a hole in it. Mr Molina commented that Southern Wire was not paying the workers enough because they couldn’t afford new boots. As a result, Mr Douthie, according to Mr Bella, got up, said that he would go and buy some boots, and did so.[31]
  7. Mr Bella’s evidence on the atmosphere in the Site sheds emanates a relaxed feel. He said that:
  8. Mr Bella confirmed that during this period, while waiting for Mr Orso, Mr Molina said words to the effect that:
  9. In response, the Southern Wire Workers kept repeating:
  10. Mr Bella said that they sat around waiting for Mr Orso to come because Mr Orso would be able to sort out the problem.[35] Mr Bella confirmed that they waited for Mr Orso to attend “So that everything was by the book”.[36]
  11. Mr Bella gave evidence that two of the Southern Wire Workers, who were seemingly engaged through or by a labour hire firm, were already members of the union.[37]
  12. Mr Douthie gave evidence-in-chief as follows:
    1. he was in the Site sheds with three other persons who were working for Southern Wire on the Site at about 11.00 o’clock on a day in March 2008 (he was unsure of the precise date) when he was approached by Mr Molina;[38]
    2. Mr Molina asked Mr Douthie and the three other Southern Wire Workers whether they were part of the Union, and they all said “no”;[39]
    1. Mr Molina said that this would be a problem and said that he wanted to contact or speak to the Southern Wire Supervisor;
    1. Mr Molina then called Mr Sivewright, and whilst on the telephone to Mr Sivewright said to Mr Sivewright that the Southern Wire Workers couldn’t even afford to purchase new boots;[40] and
    2. Mr Douthie, who had a hole in his boots, stood up and told Mr Molina that he could afford to purchase new boots, waited for the telephone call to finish, and said he was going to go and get some new boots “right now”, and he then left the Site, purchased some new work boots, and returned to the Site sometime later, but had no further contact with Mr Molina.[41]
  13. During the course of Mr Douthie’s evidence the applicant made a successful application to cross-examine Mr Douthie, that is, the applicant’s own witness, under s.38 of the Evidence Act 1995 (Cth).[42] In the cross-examination which followed Mr Douthie admitted being interviewed by an Inspector with the Australian Building and Construction Commission, and that the statements attributed to him in response to questions from the Inspector contained in the transcripted record of interview[43] were true. The ROI was admitted into evidence.[44] Relevantly, the ROI provides as follows:
  14. Under cross-examination by Counsel for the respondents Mr Douthie proved to be a witness with a poor recollection of events, which to his credit he freely admitted.[46] Mr Douthie also conceded that it was possible that Mr Molina had made statements to the effect that the employees did not need to join the Union, or did not have to join the Union, although he did not actually remember whether or not Mr Molina made such a statement, or made a statement to the effect that the Southern Wire Workers had to join the Union.[47] Mr Douthie conceded that the ROI was his “interpretation” of events on the day, and that events might have been interpreted differently from person to person.[48] Significantly, however, Mr Douthie ultimately maintained that what he said in the ROI was the truth as he recalled it at the time of the ROI.[49]
  15. Although Mr Douthie was not a particularly satisfactory witness, it is significant that:
    1. he maintained the truth of what was said in the ROI concerning Mr Molina saying to the Southern Wire Workers that they had to join the Union to work on the Site; and
    2. that the answers that Mr Douthie gave in the ROI, and which he maintains are the truth, are consistent with the evidence given by Mr Bella as to statements made by Mr Molina.
  16. Much was made in cross-examination of Mr Douthie of the precise timing and sequence of events in relation to Mr Molina’s comments about Mr Douthie’s boots, and in particular whether Mr Molina was or was not on the telephone to Mr Sivewright at the time that the comments were made. In the Court’s view not much turns upon the precise sequence of events in that regard. It is clear that Mr Molina was on the telephone to Mr Sivewright at some stage, and that he did comment whilst on the telephone about Mr Douthie’s boots, and the condition of them, and it is probable, particularly having regard to the evidence of Mr Bella, that he had made comments about Mr Douthie’s boots before speaking on the phone to Mr Sivewright.
  17. Mr Molina gave evidence that:
    1. he discussed the matter of wages underpayment and personal protective equipment[50] with the Southern Wire Workers;[51]
    2. he told the Southern Wire Workers that in order to help them sort out these issues they needed to be Union members so that he could represent them;[52]
    1. he explained to the Southern Wire Workers the various benefits of Union membership, including the availability of various insurances;[53]
    1. he asked if the Southern Wire Workers were Union members, and two, who had been engaged on Site through a labour hire firm said that they were,[54] and that one of those persons, who was not a witness, had a foreign name;[55]
    2. he denies that he told the Southern Wire Workers that they had to join the Union, but:
      1. did tell them that they had to join the Union if they wanted him to represent them in relation to the wages and PPE issues;[56]
      2. did say that he “wanted” them to join the Union;[57]
      3. would not have told them that they had to join the Union because he feared losing his job as a Union Organiser if he lost his right to enter work sites as a result of giving improper advice;[58]
    3. he told the Southern Wire Workers that they had a right to exercise in relation to joining the Union, and that that was a right that they needed to and “must” exercise;[59]
    4. he was genuinely “nice” to the Southern Wire Workers in the conversation,[60] and that the only time that anyone appeared upset was when he made his comment about Mr Douthie’s boots and Mr Douthie left to get new boots;[61]
    5. he denies saying that the Southern Wire Workers could not work on Site if they did not have Union membership;[62]
    6. he says that he did say that the Southern Wire Workers could not go back onto Site until the PPE issue (which appears to be a reference to Mr Douthie’s boots) was sorted out;[63]
    7. he did tell Mr Sivewright in the conversation with him that the Southern Wire Workers could not work on Site until the PPE issue was sorted out;[64]
    8. he did tell Mr Bella that he did not have to be a Union member;[65] and
    1. he also discussed the issues of superannuation and long service leave with the Southern Wire Workers.
  18. Cross-examined about whether there were workers on the Site who were not members of the Union and the consequences of that Mr Molina gave the following evidence:
  19. Later, Mr Molina, when being questioned about his approach to recruiting union members, observed that “Some [people] believe that they don’t have to be members”.[67]

The telephone conversation with Mr Sivewright

  1. Mr Molina admits that during the time he was in the Site sheds he telephoned Benjamin Sivewright, the Industrial Manager for Southern Wire, and that he did so using a telephone registered in the name of the “CFMEU Construction Division”. Mr Radisich alleges that this conversation occurred at or about 10.45am, but the precise time is not admitted by Mr Molina. It is apparent from the evidence that the telephone conversation with Mr Sivewright occurred part of the way through the conversation in the Site sheds between Mr Molina and the Southern Wire Workers.
  2. Mr Radisich alleges that the telephone conversation proceeded as follows:
    1. it commenced with Mr Molina saying to Mr Sivewright “It’s Vinnie again from the CFMEU. We got your guys in my office. This has been going on for weeks and weeks this issue. They’re still not members of the union. There’s a safety issue on site, one of the guys has holes in his boots. I can’t let them back on site until they’re members of the union.”;
    2. that Mr Sivewright replied to Mr Molina by saying “We can get the boots rectified very quickly. I can get him off site immediately and get him back there with new boots, but I’d like the other guys to go back to work straight away.”;
    1. that Mr Molina then said on the telephone to Mr Sivewright:
      • “They’re not members of the union, you’re missing the point. I’d like a union team out here immediately to continue this job. I don’t want your sub-contractors on site that aren’t members of the union. The guys aren’t fucking going back to work until they’re members of the fucking union, mate. Do you understand that?”; and
    1. that during the telephone conversation Mr Molina addressed Mr Sivewright in an aggressive tone.
  3. The above allegations by Mr Radisich are denied by Mr Molina, and not admitted by the CFMEUW or CFMEU.
  4. Mr Sivewright’s account of the conversation with Mr Molina is as follows:
    1. Mr Molina rang Mr Sivewright in his office about 10.30am;
    2. Mr Molina introduced himself as “Vinnie from the CFMEU”;
    1. Mr Molina said to Mr Sivewright that the issue of Southern Wire Workers “not becoming union members had gone on for some weeks” and he “would like them to become union members”; (emphasis added);
    1. Mr Sivewright said that Mr Molina could not force the Southern Wire Workers to become union members “because of freedom of association”;
    2. Mr Molina then raised an issue as to one of the Southern Wire Workers having holes in his work boots and that none of the Southern Wire Workers were going back to Site until that issue had been rectified;
    3. Mr Sivewright said that he could get the boots issue rectified quickly by getting that worker off Site and getting him new boots;
    4. Mr Molina told Mr Sivewright that he was “missing the point” and that “we weren’t going back to site until we had union member installers.”;
    5. Mr Sivewright described Mr Molina’s tone as “very aggressive”;
    6. Mr Sivewright said that he thought that the words used by Mr Molina were “the guys aren’t going back to effing [fucking] work until they become members of the effing [fucking] union”;[68] and
    7. Mr Sivewright says that in a five minute telephone conversation Mr Molina reiterated at least three times the view that the Southern Wire Workers were not going back to work until they became members of the Union.[69]
  5. Mr Sivewright says that he then had a discussion with Southern Wire’s Leading Hand on the Site, Andrew Bella. Mr Sivewright says that he contacted Mr Bella and Mr Bella gave him the impression that “he didn’t want to go back to work while this guy [Mr Molina] was holding him back.”[70] Mr Sivewright told Mr Bella that he was allowed to go back to work, but Mr Sivewright says that Mr Bella was reluctant to do so, “ummed and ahed” and said that he would “sooner not”, and asked Mr Sivewright to sort the issue out.[71] Mr Sivewright described Mr Bella’s tone as “angry ... also a little bit scared, frustrated.”[72]
  6. Mr Molina was sitting next to Mr Bella when Mr Molina was speaking to Mr Sivewright.[73]
  7. When asked about the telephone conversation between Mr Molina and Mr Sivewright Mr Bella gave the following evidence:
  8. Mr Bella said that he could not hear what Mr Sivewright was saying to Mr Molina after he handed the phone over, and then was asked how much he heard about what Mr Molina said to Mr Sivewright in that conversation, to which he said :
  9. Mr Sivewright also prepared, after the event, what he described as “a diary jotting”[76] of his telephone conversation with Mr Molina. The Diary Note is as follows:
  10. Under cross-examination Mr Sivewright:
    1. conceded that his recollection of the conversation with Mr Molina was “not complete”,[78] and that, prompted by reading the Diary Note, he now recollected that Mr Molina had requested a copy of records including pay records, terms, conditions and superannuation;[79]
    2. described the conversation with Mr Molina as “a heated one”,[80] and that he was “a little bit taken aback by his [Molina’s] aggressive nature” and that he was “not used to that and ... not used to people ringing up and giving me an expletive laden tirade over the phone”;[81]
    1. confirmed that he believed that Mr Molina had called him on the telephone;[82]
    1. said that “the way it [Mr Molina’s conversation] came across to me that it was an extremely aggressive tone. He used an abnormal amount of expletives in his conversation and his voice was raised greatly.”;[83]
    2. denied that his recollection of events was influenced by certain scriptural principles and Christian beliefs to which he subscribed, and which are best reflected in the following extract from Transcript:
      • MR NICHOLAS: Mr Sivewright, do you have any particular convictions about joining a union or any kind of organisation? --- Yes, I do.
      • And what are they? --- Scriptural principles, my beliefs and Christian beliefs.
      • And so in relation to joining unions, what is the belief there? --- My belief is that you go by scripture. The unions don’t acknowledge the master-servant relationship which is clearly spelt out in scripture. Scripture, another scripture refers to, “Be not diversely yoked with unbelievers.”
      • And did you hold those convictions at the time of the conversation with Mr Molina you’ve given evidence about? --- Certainly, certainly.[84]
    3. denied that the principles to which he subscribed and the beliefs which he held influenced his recollection or perception of his conversation with Mr Molina.[85]
  11. In relation to the telephone conversation with Mr Sivewright Mr Molina said that:
    1. he used his own telephone supplied by the CFMEU to speak with Mr Sivewright;[86]
    2. the tone of the conversation was “friendly”,[87] “normal”,[88] and that it “wasn’t an aggro conversation”;[89]
    1. the issues he discussed with Mr Sivewright were wages, superannuation and long service leave,[90] and that he raised the question of PPE in the context of Mr Douthie’s boots, when he observed (and he said he was being “cheeky” in doing so)[91] that Southern Wire was not paying its workers enough to enable them to get proper boots;[92]
    1. he admits that he said to Mr Sivewright that the Southern Wire Workers could not work on Site without proper PPE, which was a reference to the boots issue;[93]
    2. Mr Sivewright was not very approachable,[94] and told him that he would discuss the issues with Australand Holdings,[95] which made Mr Molina frustrated and angry,[96] but not in an abusive, coercive or aggressive manner;[97]
    3. he admits swearing to or at Mr Sivewright once whilst on the telephone when he said to Mr Sivewright “I fucking want you to come and fix ... [the issues]”[98] or telling Mr Sivewright to “Fucking fix the issue”;[99]
    4. he denies swearing at Mr Sivewright “time after time”;[100]
    5. he denied that he would have, as asserted by Mr Sivewright, said that “The guys aren’t going back to fucking work until they become members of the fucking union”, and in so doing made the point that he would not have used the phrase “fucking union” because he respected his own organisation;[101]
    6. he says that when he told Mr Sivewright that the Southern Wire Workers were not Union members Mr Sivewright told him that they were “Christians” and therefore “don’t join any organisation”;[102] and
    7. denies saying to Mr Sivewright that the Southern Wire Workers had to be members of the Union to work on Site or that they had to be in the Union.[103]
  12. Mr Molina summarised his involvement in conversations with the Southern Wire Workers in the Site sheds as follows:

The conversation with Mr Orso

  1. Mr Radisich then alleges that Mr Molina had a conversation with Mr Orso, the site manager for Australand Holdings at the Site using the CFMEU Construction Division telephone. Save for the alleged time, which Mr Radisich alleges was shortly before 11.00am, the fact of a telephone conversation between Mr Molina and Mr Orso in the following, or very similar, terms is admitted:
    1. Mr Molina commenced the conversation by saying to Mr Orso “Could you come and see me? I’ve got an issue with the Southern Wire workers. I’m in the lunch room.”; and
    2. that Mr Orso replied to Mr Molina saying “Yeah Vinnie, I’ll finish what I’m doing and make my way across.”[105]

Mr Orso’s involvement and further involvement between Mr Molina and Mr Bella

  1. Mr Radisich alleges that at about 11.15am on 19 March 2008 Mr Orso arrived at the Site sheds, at which time Mr Molina and one or more of the Southern Wire Workers were present. This is not disputed, save that the exact time is not admitted.
  2. Mr Radisich then alleges that the following occurred:
    1. Mr Orso said to Mr Molina “What’s the problem?”;
    2. Mr Molina replied to Mr Orso “I’ve got some issues with the PPE of the people that are on site and I’ve got some issues in regard to the way they are being paid.”;
    1. Mr Orso said to Mr Molina “Well the PPE is obviously something we need to sort out and you’ll have to give me a chance to look at the pay issue.”;
    1. Mr Bella then said “The worker’s gone to get new boots.”;
    2. Mr Molina said to Mr Bella “I haven’t finished talking to you, Andrew.”;
    3. Mr Bella then said to Mr Molina “Well, I want to get back to work.”;
    4. Mr Bella then faced Mr Orso and said “Can I go back to work?”, to which Mr Orso responded “Absolutely, go back to work.”;
    5. Mr Bella then commenced leaving the Site sheds, and as he was doing so:
  1. Mr Molina said to Mr Bella, in Mr Orso’s presence: “Fucking come back I haven’t finished.”;
  1. Mr Bella asked of Mr Orso, “Jason, can I go back to work?”;
  2. Mr Orso said to Mr Bella, “Absolutely, Andrew – go back to work.”
  3. Mr Bella then said to Mr Molina “Jason’s the Site Manager and he’s telling me I can go back to work, so I’m going back to work.”; and
  4. Mr Bella then left the crib hut on the Site and re-commenced work.
  1. Read literally, and in isolation from other alleged events on 19 March 2008, there is no factual content in the involvement between Mr Orso, Mr Molina and Mr Bella which relates to the issues of intent to coerce a person to become a member of an industrial association or the making of a false and misleading representation concerning another person’s obligation to become a member of an industrial association. However, it is alleged that Mr Molina’s alleged statement to Mr Bella “Fucking come back I haven’t finished” was a statement made in relation to an intention to coerce Mr Bella (and others) to become members of the Union. An examination of the circumstances is necessary to put the alleged statement in its proper context, both factually and conceptually.
  2. Mr Orso says that after having received the telephone call from Mr Molina he went to the Site sheds. He says that he did so immediately and was there within five minutes.[106] Mr Orso says that Mr Bella, and he thinks one other workman, was present.[107] What then happened according to Mr Orso is as follows:
  3. According to Mr Bella it was only after Mr Orso said that he could return to work, and that he started walking away, that Mr Molina reacted adversely. According to Mr Bella:
    1. Mr Molina “started swearing and cursing at me”,[109] saying “Don’t you effing walk away from me,’, effing this and effing that.”;[110]
    2. Mr Molina was “angry”;[111]
    1. Mr Bella got angry, turned around and walked back up to Mr Molina and said “Don’t you effing speak to me like that when we spent that time with you listening to you, and now we can go back to work you start abusing me.”;[112]
    1. Mr Molina started “cursing again as I [Mr Bella] walked off.”;[113] and
    2. he heard Mr Molina say to Mr Orso that they were going to have to have a meeting about this, but that that was said as Mr Bella walked away.[114]
  4. Mr Bella told Mr Sivewright about the encounter later on, and said that he told Mr Sivewright that “they had a go at me once we could go back to work, and ... it was quite funny because, you know, we listened to his side, you know, in the crib hut. And then, when he realised we weren’t joining, he got angry.”[115]
  5. In relation to the swearing incident involving Mr Bella Mr Molina’s evidence of what occurred is succinctly summarised as follows:
  6. In cross-examination Mr Molina said that after Mr Bella was told he could return to Site by Mr Orso that the following exchange occurred:
  7. Cross-examined further, Mr Molina expressly linked the exchange with Mr Bella as Mr Bella left the Site sheds to the issue of underpayment, and asserted that this was expressly said to Mr Bella.[118]
  8. Mr Molina said that he swore at Mr Bella and requested him to come back because once Mr Bella decided to leave the Site sheds and return to work he realised that Mr Bella was not going to join the Union, and as Mr Bella was in charge of the Southern Wire Workers’ team on Site (that is the workers who had been in the Site sheds and to whom Mr Molina had spoken) he thought that he represented the employer and that he wanted to discuss with him the wages underpayments, superannuation and long service leave issues.[119]
  9. Mr Orso spoke, a few hours after the event, with Mr Sivewright. He spoke to Mr Sivewright about the issues, including PPE, and when asked whether Mr Sivewright mentioned anything else said that:
  10. Mr Orso also gave evidence that he had dealt with Mr Molina over the course of the project, had a cordial relationship with him, and had never found him to be an aggressive person.[121]
  11. Mr Orso also said that he had never in his dealing with Mr Molina, heard Mr Molina say words to the effect that “If you are not in the union you can’t work on this site”.[122]
  12. The overall impression conveyed by Mr Orso’s evidence was that the entire atmosphere was relatively relaxed at the Site sheds until Mr Molina’s statement to Mr Bella to, or to the effect of, “Come back fucking here.”[123]
  13. Cross-examined in relation to the use of language on building sites, Mr Orso said of Mr Molina’s statement to “Come back fucking here” that it was “fairly tame in the context of most conversations that you hear on – if you walked around any building site. Only my experience, but the F and Cs used as adjectives, nouns, verbs and you know, pretty much everything else.”[124]

Calls to the CFMEU

  1. Mr Radisich alleges that between approximately 10.30am and 1.30pm on 19 March 2008, Mr Molina made a further five calls using the CFMEU Construction Division telephone to:
    1. the CFMEU’s “Head Office”;
    2. Joseph McDonald, an officer or agent of the CFMEU; and
    1. Paul Ferreira, an officer or agent of the CFMEU.
  2. Mr Molina admits making a number of telephone calls using the CFMEU Construction Division telephone, but says that he was unaware of the precise number of calls, admits that he did call Mr McDonald, but says that he did not call Mr Ferreira.
  3. On the evidence there are perfectly simple reasons for the calls made by Mr Molina on 19 March 2008. They include normal telephone calls to the office of the Union, and also, and more particular to the Site, the fact that Mr Molina was organising a photo shoot for the Union magazine of women working on the Site, of which there were apparently a significant number, including “the Boss” from Australand.[125]
  4. In the Court’s view nothing turns upon or arises out of the fact of the further telephone calls made by Mr Molina. The explanations proffered by him are both cogent and reasonable, and, in any event, that explanation was not the subject of challenge in cross-examination, and, in the circumstances, it ought to be accepted.

Consideration

  1. In assessing whether the facts alleged, or other facts, have been proved there must be a reasonable basis on which the Court can make a positive finding that it is actually persuaded of the existence of the fact or facts which it finds proven.[126] Section 140(2) of the Evidence Act set out a list of non-exhaustive factors that the Court must take into account in determining whether it is satisfied that a case has been proven on the balance of probabilities. With respect to the gravity of an issue it has been observed that that is a circumstance which the Court must take into account when determining whether or not the burden of proof has been discharged, and the more serious the issue of which proof is required the more cogent or clear the evidence needed to establish it.[127]
  2. Alleging the making of a false and misleading statement or statements, and, especially, a threat or threats with intention to coerce, in circumstances where reasonably significant monetary penalties are provided for proven contraventions by the making of a false and misleading statement or the making of threats with intent to coerce, in relation to the issue of workplace union membership, are grave allegations, which the Court must treat as outlined in the previous paragraph.
  3. Mr Bella was a central witness in this case, given his:
    1. involvement in the initial conversation;
    2. listening in to the Molina end of the Sivewright-Molina telephone conversation; and
    1. exchange with Mr Molina as Mr Bella sought to return to work.

Mr Bella was, in the Court’s view, a reliable witness. The Court observed on the day that he gave evidence, that Mr Bella was “straightforward and honest”.[128] Mr Bella was not a partial witness. Whilst he was a Southern Wire employee, and not a Union member, and he made it clear, both on 19 March 2008 and in the witness box, that he had no intention of joining the Union, or a union, his evidence in relation to the entire matter was such that it both assisted and impeded the case for each of the parties. The Court considers that Mr Bella’s evidence is evidence which the Court is able to rely upon.

  1. Mr Sivewright’s evidence in this matter was essentially limited to his telephone conversation with Mr Molina, heard by Mr Bella at Mr Molina’s end of the conversation. There are a number of inconsistencies between the account of the telephone conversation by Mr Sivewright and Mr Bella. They include:
    1. Mr Sivewright’s account of what was said by Mr Molina as being “expletive laden”, whereas Mr Bella says that no expletives were used;
    2. Mr Sivewright saying that Mr Bella said to him that Mr Molina was “holding him back” from going back to work, and that he was reluctant to go back to work until the issue had been sorted out, whereas Mr Bella said that the reason he did not return to work was because he had been instructed by the Site Foreman, Mr Edwards, not to return to work until the issue was sorted out by Mr Orso;
    1. Mr Sivewright’s description of Mr Bella as being on the telephone, angry, scared and frustrated, whereas Mr Bella says that the entire situation was relaxed, and that he sat and chatted and listened to Mr Molina during the entirety of the lunch break while Mr Molina spoke to Mr Bella and at least two other Southern Wire Workers about the “advantages” of union membership; and
    1. Mr Sivewright’s account of Mr Molina’s tone as being “very aggressive”, whereas Mr Bella, who was sitting next to Mr Molina while he spoke to Mr Sivewright, describes a conversation conducted in relatively civil terms, and terms consistent with Mr Bella’s statement that, at this stage, Mr Molina’s language was “calm”.
  2. Based on Mr Bella’s account of the conversation, and what Mr Bella heard of Mr Molina’s end of the conversation, the conversation was not one which:
    1. was aggressive in tone;
    2. was expletive laden, or contained any expletives at all; and
    1. contained no reference to Union membership.
  3. Mr Bella’s account is generally consistent with that given by Mr Molina. On balance, the Court prefers the evidence of Mr Bella and Mr Molina to that of Mr Sivewright. The Court finds that the situation did not give rise to aggression on Mr Molina’s part, or an expletive laden tirade. The atmosphere, as described by Mr Bella, was relatively relaxed. This is confirmed by Mr Orso’s description of the scene as he entered it sometime later. For whatever reason, and it may be that he was influenced by his principles and beliefs, or by his later conversations with Mr Bella and Mr Orso, Mr Sivewright’s account of Mr Molina’s conversation with him is, at the very least, exaggerated.
  4. In relation to the telephone conversation with Mr Sivewright the Court finds that there was no false or misleading statement made by Mr Molina in the course of that telephone conversation, and no threat with intent to coerce. The Court accepts Mr Bella’s account of the conversation, with the modification that Mr Molina swore once, as he admitted, during the course of that conversation. There is nothing in the evidence of Mr Bella or Mr Molina which constitutes a false or misleading statement or a threat with intent to coerce as alleged. The inconsistency between Mr Sivewright’s account, and that of Mr Bella and Mr Molina, are such that the Court, preferring the evidence of Mr Bella in particular, does not accept that the telephone conversation occurred in the manner described by Mr Sivewright. Moreover, Mr Sivewright’s later iterations of the conversation, by way of his Diary Note and his later conversation with Mr Bella, do not indicate a conversation which could be characterised as angry, forceful or an expletive-laden tirade. Moreover, his later conversation with Mr Bella and Mr Orso, do not indicate that there was any pressure placed on Mr Sivewright with respect to engaging members of the Union only to perform work on the Site. In all of the circumstances the Court does not accept Mr Sivewright’s account of the telephone conversation. It follows therefore that there was no false or misleading statement made by Mr Molina during the course of that telephone conversation, and that his conduct did not constitute a threat or threats with intent to coerce.
  5. In the Court’s view the evidence, particularly that of Mr Bella, but also the confirmed evidence of Mr Douthie as contained in the ROI, is sufficient to persuade the Court that Mr Molina did make statements to the effect set out above during the conversation with the Southern Wire Workers in the Site sheds. Mr Molina denies this, but the Court is not persuaded by the denials, and refers to the evidence of Mr Bella, and the relevant ROI evidence of Mr Douthie. In any event, there are subtle indicators, which further persuade the Court that the false and misleading statements were made, in particular Mr Molina’s attempt to tie his “Come back fucking here” statement, in front of Mr Orso, to terms and conditions of employment. That attempt to tie back is inconsistent with the evidence of Mr Bella, which for reasons set out above the Court accepts, and the evidence of Mr Orso, which the Court also accepts. Mr Molina’s attempt to tie back that statement to terms and conditions of employment is in the Court’s view a recognition of the fact that that statement might otherwise lend some weight to the alleged contraventions, both as to a false and misleading statement and coercion. There are also other, much subtler, indications that Mr Molina was likely to have made the alleged false and misleading statement or statements, and they are his comments that:
    1. those who were not Union members were “freeloaders”;
    2. “we [the Union] expect everybody to sign up with the union”; and
    1. people should exercise their right to join the organisation by actually joining.

The above evidence gives an indication to the Court, that it is likely that, in the course of what was seemingly a relaxed but nevertheless robust lunchtime workplace debate, Mr Molina would have made the statements that are attributed to him by Mr Bella and Mr Douthie, and which are consistent with the alleged contravention of s.790(1)(a) of the WR Act.

  1. There can be no doubt, having regard both to the freedom of association provisions within the WR Act, and the practice on the Site, which was as explained by Mr Orso, to prefer but not require union membership, that the statements made by Mr Molina were false, in the sense that they were untrue, and misleading, because they did not represent the actual requirements on Site. There was therefore a contravention of s.790(1)(a) of the WR Act by Mr Molina by the making of false and misleading statements as to a person’s obligation to become a member of the Union, during Mr Molina’s discussions with the Southern Wire Workers in the Site sheds. There will be a declaration accordingly.
  2. In relation to the alleged contravention with respect to threats with intent to coerce, it follows from the Court’s finding above that the conduct complained of was unlawful, at least insofar as it was constituted by the making of a false and misleading statement or statements. The Court does not however, consider that the making of the false and misleading statements was intended to exert pressure so as to negate choice. It is evident that the statements were, as the Court has already observed, made in the context of a robustly healthy but relaxed workplace debate over lunch in a Site shed. In that context the statements were distinguishable from other cases where a similar statement has been found, of itself, to readily fit the idea of coercion.[129] Moreover, whilst it is the case that the false and misleading statements were made, there were also other statements made, by Mr Molina, which made it clear that the Southern Wire Workers had a choice as to whether or not they joined the Union. Mr Molina told them so, Mr Bella said so, as did other Southern Wire Workers present. Moreover, it is apparent that the workers, other than Mr Bella, returned to work prior to Mr Orso arriving at the Site sheds, and that is indicative of their being aware that they had the capacity to return to work whether or not they were Union members. On the evidence, at least two of the two or three or four Southern Wire Workers (other than Mr Bella) present were already Union members in any event. Mr Bella only remained at the Site sheds because he had been told by the Site Foreman, Mr Edwards, to wait until Mr Orso’s return so that the matter could be properly sorted out. The Court is persuaded that there was nothing in the conduct of Mr Molina, prior to the “Come back fucking here” exchange with Mr Bella, which constituted the exertion of pressure which, in a practical sense, was intended to negate choice.
  3. What then of the “Come back fucking here” exchange between Mr Molina and Mr Bella? It was, on the evidence before the Court, simply an angry outburst which received an equally angry retort. Even then, both parties appeared to have considered the exchange to be one unremarkable on a building site. The Court is persuaded that Mr Molina’s conduct in this regard was no more than a mere angry outburst, possibly in disappointment at his inability to persuade Mr Bella to join the Union, but a mere angry outburst does not constitute a threat with intent to coerce within the meaning of that phrase as set out in the authorities.
  4. The Court has no doubt that Mr Molina was persistent in his endeavours to persuade those Southern Wire Workers who were not already Union members to join the Union. But persistence, particularly where it consists of an endeavour to persuade in the course of a robust debate, is not coercion. In any event, having regard to the findings of fact by the Court set out above, the alleged contravention of s.789(1)(a) of the WR Act was not factually established by the evidence led in support of the alleged contravention.

Union liability

  1. In evidence, Mr Molina confirmed that he received instructions from the Secretary of the Union, Mr Kevin Reynolds, and that his job was to encourage people to join the Union and to recruit new members, “but we’ve always been instructed to abide the legislation.”[130]
  2. By reason of s.779(2) of the WR Act if Mr Molina was an officer, or agent of an industrial association acting in that capacity then his conduct is taken to be their conduct. In this case it is admitted that Mr Molina is an officer of the CFMEUW and an agent of the CFMEU, and that he was acting within the scope of his actual or apparent authority, save that it was denied that he behaved unlawfully.[131] For practical purposes the conduct of CFMEUW and CFMEU was indistinguishable on the evidence.
  3. In light of the admission, and the Court’s findings, Mr Molina’s conduct in contravention of s.790(1)(a) is also conduct of the CFMEU and CFMEUW, and by reason of s.826(2) of the WR Act has been engaged in by the CFMEU and CFMEUW. There will be a declaration that the CFMEU and the CFMEUW have contravened s.790(1)(a) of the WR Act.

Conclusion

  1. The Court has concluded that there was a contravention of s.790(1)(a) by Mr Molina, and by each of the CFMEU and CFMEUW, for reasons set out above. There will be a declaration accordingly. Otherwise, the alleged contraventions were not made out.
  2. The matter will be adjourned to a directions hearing at 9.00am on 18 February 2011 for order to be made with respect to a penalty hearing.

I certify that the preceding 99116one hundred116116sixteenninety-nineninety-nine (99) paragraphs are a true copy of the reasons for judgment of Lucev FM


Date: 11 February 2011

[1] “Mr Molina”.
[2] “CFMEUW”.
[3] “CFMEU”. Generally in these Reasons for Judgment “the Union” is used to described both the CFMEUW and CFMEU, unless differentiation is otherwise required.
[4] “WR Act”.
[5] “Mr Radisich”.
[6] WR Act, ss.789(2) and 790(2)
[7] “Site”.
[8] National Tertiary Education Industry Union v Commonwealth of Australia [2002] FCA 441; (2002) 117 FCR 114 at 134 per Weinberg J; [2002] FCA 441 at para.65 per Weinberg J.
[9] See generally Williams v Construction, Forestry, Mining and Energy Union [2009] FCA 223; (2009) 179 IR 441 at paras.476-477 per Jessup J; [2009] FCA 223 at para.103 per Jessup J; 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 at 388 per Merkel J; [2001] FCA 456 at paras.41-43 per Merkel J; Alfred v CFMEU & Ors [2009] FMCA 613; (2009) 185 IR 325 at 349; [2009] FMCA 613 at para.86 per Smith FM.
[10] “the Representations”.
[11] (2007) 160 IR 263; [2007] FCA 87 (“Hadgkiss”).
[12] Hadgkiss IR at 318-319 per Graham J; FCA at para.288 per Graham J.
[13] Construction, Forestry, Mining and Energy Union v Hadgkiss [2007] FCAFC 197; (2007) 169 FCR 151 at 161 per Lander J and 164 and 168 per Buchanan J; [2007] FCAFC 197 at para.55 per Lander J and paras.74 and 94 per Buchanan J.
[14] [2007] FCA 1244; (2007) 167 IR 43 at 74-76 per Jessup J; [2007] FCA 1244 at paras.95-100 per Jessup J.
[15] [2008] FCA 1585; (2008) 177 IR 306 at 321-322 per Moore J; [2008] FCA 1585 at paras.46-50 per Moore J.
[16] [2008] FMCA 546; (2008) 177 IR 427 at 450 per Lucev FM; [2008] FMCA 546 at para.93 per Lucev FM.
[17] (2008) 221 FLR 91; [2008] FMCA 1490 (“Hayward”).
[18] Hayward FLR at 102-103 per Wilson FM; FMCA at para.34 per Wilson FM. The relevant extracts from Hayward are set out in full in this Court’s judgment in Attwood v Wangka Maya Pilbara Aboriginal Language Centre [2010] FMCA 342; (2010) 196 IR 178 at 196-200 per Lucev FM; [2010] FMCA 342 at para.59 per Lucev FM.
[19] “BCII Act”.
[20] “IR Act”.
[21] “Southern Wire”.
[22] “Australand Holdings”.
[23] “Southern Wire Contract”.
[24] Collectively, the “Southern Wire Workers”.
[25] Transcript, page 45.
[26] Transcript, page 47.
[27] Transcript, pages 46-47.
[28] Transcript, page 48.
[29] Transcript, page 50.
[30] Transcript, page 48.
[31] Transcript, page 48.
[32] Transcript, page 49.
[33] Transcript, page 49.
[34] Transcript, page 49.
[35] Transcript, page 49.
[36] Transcript, page 50.
[37] Transcript, page 49.
[38] Transcript, page 65.
[39] Transcript, page 65.
[40] Transcript, pages 65-66.
[41] Transcript, page 66.
[42] “Evidence Act”. See Radisich v Molina & Ors [2009] FMCA 1121.
[43] “ROI”.
[44] Exhibit A3. Also admitted into evidence was a short statement signed on 3 April 2008 by Mr Douthie that the ROI was true to the best of his knowledge and belief: Exhibit A4.
[45] ROI, paras.49-54.
[46] See, for example, Transcript, pages 106, 108, 109 and 113 (to the effect that he was not 100% sure) and 112, 114, 116 and 117 (admitting to not remembering, recalling, or having an incomplete recollection of events).
[47] Transcript, page 114.
[48] Transcript, page 115.
[49] Transcript, pages 115 and 120.
[50] “PPE”.
[51] Transcript, pages 127, 139 and 159.
[52] Transcript, pages 128, 129 and 134.
[53] Transcript, page 128.
[54] Transcript, pages 128 and 155.
[55] Transcript, page 128.
[56] Transcript, page 129.
[57] Transcript, pages 129 and 144.
[58] Transcript, page 130.
[59] Transcript, pages 132-133.
[60] Transcript, page 155.
[61] Transcript, pages 132, 133 and 135.
[62] Transcript, pages 142 and 143-144.
[63] Transcript, pages 133, 139, 143 and 160.
[64] Transcript, pages 141 and 142.
[65] Transcript, page 144.
[66] Transcript, page 138.
[67] Transcript, page 146.
[68] Transcript, page 16. Mr Sivewright indicated to the Court that he “would not wish to use the expletives” which he claimed Mr Molina used, hence the use of “effing”.
[69] Transcript, page 17.
[70] Transcript, page 17.
[71] Transcript, page 17.
[72] Transcript, page 17.
[73] Transcript, page 48.
[74] Transcript, page 46.
[75] Transcript, page 47.
[76] Transcript, page 18 (“Diary Note”).
[77] Exhibit A1, Mr Sivewright’s diary extract 19 March 2008.
[78] Transcript, page 21.
[79] Transcript, page 22.
[80] Transcript, page 27.
[81] Transcript, page 27.
[82] Transcript, page 28.
[83] Transcript, page 29.
[84] Transcript, page 29.
[85] Transcript, page 29.
[86] Transcript, page 129.
[87] Transcript, page 129.
[88] Transcript, pages 131 and 139.
[89] Transcript, page 131.
[90] Transcript, pages 131, 150, 151 and 152.
[91] Transcript, page 154.
[92] Transcript, pages 131 and 150.
[93] Transcript, page 141.
[94] Transcript, page 136.
[95] Transcript, page 152.
[96] Transcript, pages 149, 153 and 160.
[97] Transcript, pages 139 and 153.
[98] Transcript, pages 131 and 154.
[99] Transcript, page 153.
[100] Transcript, page 153.
[101] Transcript, page 154.
[102] Transcript, pages 131, 148, 150 and 151.
[103] Transcript, pages 131, 132, 152 and 153.
[104] Transcript, page 137.
[105] Transcript, page 135: Molina said that Orso said he would “be there in a minute”?
[106] Transcript, page 32.
[107] Mr Orso did not know Mr Bella other than by his first name, and by his role as the Site Supervisor for Southern Wire: Transcript, page 32.
[108] Transcript, pages 32-33.
[109] Transcript, page 50.
[110] Transcript, page 51.
[111] Transcript, page 51.
[112] Transcript, page 51.
[113] Transcript, page 51.
[114] Transcript, page 51.
[115] Transcript, page 51.
[116] Transcript, page 137.
[117] Transcript, page 158.
[118] Transcript, page 158.
[119] Transcript, page 137.
[120] Transcript, page 34.
[121] Transcript, page 35.
[122] Transcript, page 41.
[123] Transcript, page 40 and 42.
[124] Transcript, page 42.
[125] Transcript, page 139.
[126] Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 at 304-305 per Dixon J; Gurnett v Macquarie Stevedore & Co (1955) 55 SR (NSW) 243 at 248 per Street CJ.
[127] Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at 361-363 per Dixon J; Rejfek v McElroy [1965] HCA 46; (1965) 112 CLR 517 at 521 per Barwick CJ, Kitto, Taylor, Menzies and Windeyer JJ; Re Dellow’s Will Trusts [1964] 1 WLR 451 at 454-455 per Ungoed-Thomas J; Evidence Act, s.140(2).
[128] See Transcript, page 74.
[129] See, for example, Stuart-Mahoney v CFMEU & Anor (No 2) [2008] FMCA 1015 at para.105 per Burchardt FM.
[130] Transcript, page 140.
[131] See respondent’s Notice Disputing Facts filed 14 October 2009, para.2; applicant’s Notice to Admit Facts filed 29 September 2009, para.2.

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