findings
47 Mr Maher was not aware of the evidence relating to the making of the telephone calls when he prepared his affidavit, in which he affirmed that the first notice he had of the existence of the Order was from Mr Vickers at about 9.26 am on 8 February 2000. He maintained that position at the hearing. In further evidence in chief he explained that he had not adverted to the other telephone calls he had made or received because they did not relate to the Orders made on 7 February 2000. Mr Maher did not say what they did relate to. The CFMEU did not call any other person the subject of that further evidence to explain the telephone calls. It conducted its case upon the basis that Mr Maher's evidence would be accepted and on the basis that no inferences adverse to it could properly be drawn from evidence of the fact of calls having been made between the various persons.
48 It was conceded in submissions that the creditworthiness of Mr Maher was important, if not decisive, of any acceptance of his story about the telephone call from Mr Humphreys. That involves a consideration of a number of aspects of the evidence, which I shall shortly undertake. I would not, in any event, consider it correct to determine an important aspect of the evidence by reference to credit alone. Here, however, there is the evidence of calls which followed in a matter of some minutes and in a circumstance where Mr Maher is not able to explain what might have prompted calls at 11.00 pm. He could not point to anything which had occurred at the dinner which might have led to the calls; he did not suggest that he was likely to have been ringing some of the media representatives who had been calling him; and he said he was, at about this time, organising the departure of guests from the function.
49 The first of the calls made was by Mr Coates to Mr Bruce Watson, some five minutes after the call between Mr Humphreys and Mr Maher concluded. In submissions it was said that Mr Coates could not have been a party to some conversation with Mr Maher about the call from Mr Humphreys, because he had left the dinner. It would follow that his call to Mr Watson, was wholly unrelated to the existence of the Order. As I have said, there was no evidence from Mr Maher to that effect. He could only recall that Mr Watson did not leave the dinner before him. Reliance was also placed upon the source or station recorded for Mr Coates' call which was different from that for Mr Maher, but there was no evidence as to what this meant as to his whereabouts. More importantly however, and putting Mr Coates' call to one side, some seven minutes after the call from Mr Humphreys, Mr Maher telephoned Mr Fisher. Mr Fisher was not only a member of the Executive, but also the District President and the person who had arranged the meeting for the following morning. It was Mr Fisher who Mr Everill tried, probably unsuccessfully, to call. The evidence confirms his role as one central to the strike action and the meeting. All of the factors adverted to above point strongly to a connection between Mr Humphreys' call and those matters .
50 By the time Mr Everill contacted Mr Maher, at about 5.05 am on 8 February 2000, he had received a copy of the injunction, late in the night before, and had telephoned Mr White, the Vice President of the District and had a reasonably lengthy conversation. When he was handed a copy of the Order he telephoned the Secretary of Elouera Lodge, a matter of moments later, and then Mr White, Mr Harris, Mr Fisher and Mr Mitchell again. Even if he was able to speak only to Mr Mitchell, these actions are clearly connected to the receipt of the Order. It is not too difficult to appreciate that concerns were held by Mr Everill. It was sufficient to cause him to try to contact three members of the Executive about ten minutes later after receipt of the Order.
51 Two submissions were made with respect to this aspect of the evidence. Reliance was placed upon the fact that Mr Everill did not attempt to call Mr Maher for some hours, but this does not explain the other steps taken clearly in response to the receipt of the Order, even if it was at Lodge or Branch level in the first place. It was then submitted that it was more likely that Mr Everill was likely to have been concerned about the service of the Orders on employees and Lodge officials locally and the method of that service. It may well be that Mr Everill was interested to ascertain what was happening in the Lodges and to pass that information on to the Central Executive. That does not in my view displace an obvious inference that he would be concerned to know what was to be done about the Order. To find otherwise would be tantamount to viewing his reaction to the Order as inappropriate, one which would not reasonably be expected of someone in his position.
52 In my view, it is impossible to accept that Mr Everill did not discuss the Order and its terms with Mr Maher shortly after 5.00 am. If Mr Maher was unfamiliar with the terms of the Order at this time he is almost certain to have made enquiry about them, if Mr Everill did not volunteer that information. A failure to make an enquiry would not avail him in any event. Implicit in this finding is that Mr Maher was not truthful in his evidence concerning when he became aware of the requirements of the Order.
53 By the time Mr Fisher telephoned Mr Maher, at 6.48 am, Mr Fisher had also spoken with Mr Everill. Again I conclude that he too was advised of the Order, had he not been advised by Mr Maher the night before. No action was taken by either of them to bring the strike to an end.
54 Prior to Mr Maher telephoning Ms Doust, the Union's legal officer, at 8.03 am the evidence discloses the involvement of Mr Maher and Mr Fisher at Executive level; Mr Fisher, Mr Harris and Mr White at District level, and a number of Lodge delegates. For the reasons given above, it is inconceivable that the existence of the Order and what it required were not topics of discussion.
55 It also follows that I am unable to accept that Mr Maher would not have spoken to Ms Doust about the injunctions and that view is reinforced by the CFMEU's failure to call Ms Doust, who remained in Court throughout most of the hearing. Members of the Central Executive then also found the need to speak to each other about twenty minutes later: Mr Fisher calling Mr Coates; Mr Maher calling Mr Watson twice.
56 By the time Mr Vickers telephoned Mr Maher, at 9.24 am, Mr Maher was fully aware of the terms of the Order. Mr Maher was false in his denials of knowledge and of communications prior to this point. Mr Maher's evidence that he and Mr Vickers planned a strategy of notification together is not likely to have been a poor, but mistaken, reconstruction of events by Mr Maher. In saying this I am of course influenced by the view I have formed thus far concerning Mr Maher as a witness. Mr Maher knew that it would be seen that Mr Vickers had taken action to end the strike, in compliance with the Order. Questions would naturally arise about why he was doing nothing, at a time when he is likely to have been advised of the steps taken in Queensland. A reference to Mr Vickers' telephone call might serve two purposes: to enable him to point to a time which might be accounted as too close to the meeting to allow notification to Union members; and to enable him to be seen as a participant in compliance with the Order. As a discrete item of evidence little importance would have attached to it had Mr Maher simply related a conversation about Mr Vickers' chosen method and Mr Maher's advice to him, in return, that he intended to advise members at the meeting. The story was detailed and emphasised in such a way that Mr Maher is now unable, credibly in my view, to explain why Mr Vickers would be planning a strategy when he had almost completed his transmissions.
57 Mr Maher knew of the Order at the latest by about 5.00 am and in my view he knew of it after Mr Humphreys told him of it the evening before. At that point he probably hung up. I am assisted to this conclusion by the firm view I have reached concerning his creditworthiness as a witness, which was reinforced, to an extent, by the manner in which he dealt with questions during the hearing. His version of the telephone call cannot be squared with that of Mr Humphreys, even allowing for some error in recollection on the part of Mr Maher. There is nothing to suggest Mr Humphreys' recollection was erroneous.
58 With the background of notification, I turn then to consider the conduct of the CFMEU officers at the meeting on 8 February 2000.
59 Before the meeting was held, Mr Maher had given a number of interviews. In a radio interview in the late afternoon of 7 February 2000, Mr Maher expressed "no doubt that there'll be a lot of anger directed towards the company at those meetings", the later being a reference to the series of meetings to be called, following the commencement of the national strike, to discuss the company's bad faith, and bad management. They were topics which were taken up at the meeting on 8 February, 2000. He added that he was sure the work force was going to turn on BHP.
60 In a radio broadcast at about 7.00 pm the night before, and again at 8.00 pm, mention was made of the prospect of BHP seeking a Court Order. In the same broadcast, statements by Mr Maher were included. In each case the words used were likely to have been the same, although that was not what was transcribed. It is not a matter of importance. The existence of a Court Order was adverted to again in a 6.00 am bulletin on 8 February 2000. I do not however understand BHP Steel to contend that these statements were made in the course of a live interview and I accept Mr Maher's statement that they were compilations. It has not been shown that Mr Maher was aware of these broadcasts but, as I have found, he was aware of the Order before the 6.00 am broadcast in any event. Whether he knew, the evening before, that BHP Steel was attempting to obtain an Order now assumes little relevance.
61 In the 8.30 am radio interview, to which reference is made above, there was no mention of the Court Order. There was reference by Mr Maher to BHP having betrayed the workforce. He went on to explain, in some detail, how jobs would be lost as a result of the reduction in prices and that the Illawarra area in particular would be affected. Mr Maher's explanation of this statement was that it referred only to the calling of the strike in the first place. I accept that it may be understood in that way. Of more relevance is the failure to mention the requirement of the Order that the strike must cease.
62 In the course of his evidence at the hearing, Mr Maher confirmed that prior to the meeting he was expecting that the men would be angry with BHP. As he approached the meeting he made a number of calls to Mr Fisher, the last, I infer, resulting in a conversation. So far as concerns what took place at the meeting and the manner in which the meeting was addressed by Mr Fisher and Mr Maher, Mr Maher was unable to recall much of what Mr Fisher said at it, although it would seem likely that he spoke for some little time, since Mr Maher described his role as also being that of a reporter to the meeting. Mr Fisher was not called as a witness.
63 It will be recalled that Mr Maher did not refer to the Court Order or take any action to call off the strike at the outset of the meeting. Instead, he proceeded to discuss current issues as between BHP and its employees, all of which appeared to be highly contentious and likely to add to any anger already being felt by employees. It is not difficult to appreciate that a picture was being conveyed of the company by reference to its treatment of its employees and the Union in these areas. He spoke of the current and highly volatile issue of coal prices, which was the basis for the current strike action. An obvious purpose of a meeting in these circumstances is to determine what action was now to be taken. Members of the Union would be waiting for guidance from the Executive and Mr Maher in particular.
64 It was suggested to Mr Maher that the course he undertook appeared strange. He was not dealing immediately with the Court Order, and was potentially provoking employees to further anger, which would render the prospect of ending the strike action more remote. Mr Maher added that he did explain the seriousness of the Order and its possible consequences to the meeting but to no avail. If he had done so I would have expected a reference to such a relevant action to have been included in his affidavit.
65 Mr Maher's explanation of his conduct was one which was said to have been based upon his experience in industrial matters. He said that it was pointless to approach a mass meeting and simply tell Union members that a strike was off. The approach he thought would work was to explain to the members that they had genuine grievances, that they would be taken up in the future, but that the Court had ordered the strike action to cease. An approach such as that outlined would appear to be a sensible one, although one would have to doubt the wisdom of it in the context of a large and very angry meeting of employees, as Mr Maher knew they would be.
66 It was submitted by the CFMEU that I should regard Mr Maher's explanation as reliable, because he volunteered the evidence of what took place at the meeting. I do not think too much can be drawn from that fact. It must have been obvious to Mr Maher and his advisers that he was obliged to explain a meeting which he addressed and which produced further strike action, in the face of a Court Order to cease. I have however considered whether the account given by Mr Maher, which is not altogether favourable to him, is a matter to be weighed in his favour with respect to his credit and an acceptance of his bona fides in conducting the meeting.
67 In the context of a large meeting, one apparently attended by some journalists, it is a safer course to provide an account which has a connection to the events as they occurred. It is difficult to understand why the CFMEU and Mr Maher would consider the explanation of his conduct as convincing, unless one recalls that it was no doubt assumed that his evidence to this point would be accepted and he would be considered to be a witness of credit.
68 It is not possible to discern just how much of a meeting which took about one and a half hours is reflected in the matters recounted by Mr Maher. The part that Mr Fisher played is unclear. Mr Maher was anxious, in my view, at some points in his evidence not to implicate Mr Fisher. It is noteworthy that Mr Maher was not however prepared to suggest that Mr Fisher had spoken firmly or at length, about the need to comply with the Court Order. The one sentence attributed to him discloses that he did very little to bring the strike to an end and to ensure the Order was taken seriously. These matters are not of great importance in connexion with the explanation offered by Mr Maher. The real difficulty with it is that it is not consistent with the approach he actually took.
69 I find it impossible to view the report of issues relating to BHP, the first matters drawn to the members' attention, as serving some pacifying purpose. They were matters certain to raise the level of anger towards the company. The resolution Mr Maher brought to the meeting would also have solidified anger and resentment towards the company and put in the minds' of the employees present the prospect of further strike action. Putting that resolution to the meeting prior to any discussion of the Order counts strongly against acceptance of Mr Maher's bona fides. It was submitted that one should not regard the reference in the resolution to the giving of mandate for further action to the Union as referrable to the resolution for further strike action which is said to have come shortly afterwards from the floor. I accept that that might be the case. It seems to me however that Mr Maher was driving the meeting in the opposite direction from one which would result in the end of strike action. I am only able to infer that the undertaking of that course of action was the result of a determination that the CFMEU prevail against the company.
70 Mr Maher's reference to the Court Order could not have impressed upon the members the Union's unqualified obligation to act in compliance with it and at once. After inflaming his audience he spoke of the Order as a "legalistic response" which is far from explaining its seriousness. Rather than explaining the obligation to comply with an Order made by a Court, Mr Maher connected it with the company which was to be seen as callously inflicting harm on employees. In that context, the Order was presented as another such action. To say that Mr Maher was paying mere lip service to the CFMEU's obligation to bring the strike to an end may be something of an understatement.
71 In my view, it is usually necessary in proceedings for contempt to consider whether a person or corporate body alleged to have wilfully breached an Order had a motive to do so. One would not expect deliberate breaches of Court Orders, not the least because of the consequences which may follow. In this case, these are strong reasons why Mr Maher and the CFMEU may have decided not to obey the Order. The strike was an important one, as Mr Maher reiterated at several points. It involved a matter of great principle. That was the reason for non-compliance with the Commission's Order. Whilst I accept that the CFMEU and Mr Maher would not take the same view towards compliance with an Order of the Court, because of the different and serious consequences which might follow, it is a strong indicator of the level of importance which was placed on this industrial action. There was also a real problem in calling off the meeting. There was a need to have the meeting, Mr Maher said, although clearly it was not to ensure compliance with the Court Order. There was the need on the part of Mr Maher and the Executive to maintain leadership and authority. I do not think that the influence this was likely to have had should be underestimated.
72 I have also taken into account evidence which might be considered consistent with Mr Maher's account. The evidence, other than that given by Mr Maher, was that he spoke to a radio interviewer at 8.30 am on 8 February and did not mention the existence of the Court Order. This is consistent with a lack of knowledge of it. On the other hand, it could hardly be expected that he would volunteer this information if he knew of the Order and did not intend ensuring compliance with it. Further, there is a body of evidence, albeit inferential, which points the other way.
73 Comments made by Mr Maher on 8 February 2000 were reported in a newspaper article the next day. Mr Maher says they were not statements made during the meeting, but afterwards. In connection with the further strike action, Mr Maher said that the workers were "a proud bunch and they are going to send a message about harassment to the company" and "this isn't the action of a responsible company". In relation to the workers' anger, he said:
"So the future of the district is at the core of their anger at this meeting"
and
"What we've seen here is enormous anger by workers who feel they have been betrayed by a company to which they have given their all."
74 Apart from reinforcing the likelihood that Mr Maher had done nothing to stem the anger at the meeting, these statements are relevant to the question of the true purpose of the further strike.
75 It was submitted for the CFMEU that it could not be held responsible for the action of employees who independently voted for further industrial action. Further, and relevantly for present purposes, the purpose of the strike was different from the purpose prohibited by the Order, namely the issue of coal prices. It will be recalled that the purpose stated in the resolution was the conduct of BHP Steel in notifying the Order, which was said to amount to harassment. It is noteworthy that it was not the rank and file who were identified in the resolution as the subjects of this harassment, but Union officials at Lodge and District level. This is consistent with the concern those officials no doubt had when they were notified of or served with the Orders, as earlier discussed. That does not appear to have been the response of the rank and file who were contacted. They may not have felt any responsibility about deciding upon a course of action, or inaction.
76 There are two aspects to the charge concerning the CFMEU's involvement in the decision to take further strike action: one requires an assessment as to whether the rank and file members acted on their own account or whether the Union played an active role in the motion; and the second is whether the purpose stated was in truth the purpose. The second question may be dealt with shortly. It is, in my view, clear that the issue of coal prices was an important one at the meeting and that it explained much of the anger which drove the employees to determine upon this course of action. Mr Maher's own statements confirm this. The inescapable conclusion is that the strike action was directed to this even if it was also a response to the notification and service of the Orders. The resolution itself is not conclusive of the question of purpose or even very weighty. It is likely, in my view, that it was recognised by some persons present at the meeting that any further strike action must be distanced from the prohibited purpose. A statement by Mr White, District Vice-President, following the meeting is telling. He explained to a manager of BHP Steel that the extension of the stoppage was in protest at the contempt of BHP in harassing and intimidating members in the middle of the night, to which he felt it necessary to add "This has got nothing to do with coal prices".
77 There is no doubt, in my view, that the CFMEU's conduct at the meeting was designed to, and had the effect of, encouraging the employees not to cease the strike action and to take it further. Mr Maher's words were an active encouragement to continue an expression of anger against the company. One might expect rank and file members to have been seeking guidance from the Executive and the Branch. Their statements before the meeting to persons notifying them of the Order bear this out. It is not difficult to imagine that the address by Mr Maher to the meeting did nothing to lessen the anger which he was determined to keep alive. He took no serious steps to dissuade them from further strike action. If he did speak some words of non-support they were very few. They could hardly have been thought sufficient for that purpose. The members could not have been left in any doubt about Mr Maher's and the CFMEU's lack of sincerity in not supporting the strike. They would have understood they were being encouraged to do so.