Errors of fact in face of such steps: Grounds 2, 3, 4(a), 4(d), 4(g), 5(d)-5(e), 6, 10, 11, 20(b)-20(d) and 21
59 So far as these grounds repeat the issues addressed in the preceding ground, they are not further addressed here. The principle evidence related to these grounds is that said by the appellants to establish that the appellants as the 'Union' took positive steps to prevent the withdrawal of labour by the Employees and that the decisions to withdraw labour were those of the Employees. This submission relies on evidence of actions taken by Mr Powell. For example, in the examination-in-chief of Mr Aleknavicius he testified that on 29 July 2004 Mr Powell had spoken against the motion to go out on strike and told the workers that he still wanted to try and negotiate with the Employer at that stage. This advice had been ignored. In cross-examination Mr Levy testified that on 9 July 2004, once the vote had been taken to withdraw, Mr Powell had said to the workers that they were going down the wrong path and that they should leave the matters open for negotiation.
60 The respondent challenges the claim of the appellant that the actions taken in this respect are capable of being characterised as intended to be preventative of the undertaking of industrial action by the workers. It is said this is so because the evidence demonstrates that Mr Powell, Mr Molina and Mr Levy pursued the Issues with the Employer after the cessation of work began and while it continued. I accept that there is appropriate evidence that was the case. In the case of s 178 of the Act, the respondent contends the cessation of work itself was sufficient to establish the liability of the first appellant under that section. In the case of s 170MN, the respondent relies on the evidence principally referred to in connection with the preceding group of grounds of appeal.
61 The contentions of the appellants in relation to preventative action can only be of significance if it is open to acceptance that the 'Union' (being relevantly the appellants) acted as a separate juristic entity from the Employees. In my opinion, this simply cannot be the case. I have set out earlier in these reasons the particulars of the constitutional arrangements of the Union. Examination of that shows that the Union consists of the Employees. The Union comprises every part of the Union. There is no constitutional concept of the Union on the one hand and the Employees on the other hand. The Employees are as much an integral part of the Union as the officials. The consequence is that if the Employees make a decision to go on strike, the Union is on strike.
62 Once it is understood that a duality of juridical existence is not possible between the Employees and the Union, the evidence falls for consideration in this light. If officials of the Union did give advice to the Employees that they would be wiser to follow a path of negotiation, that cannot exempt the Union from any liability from the undertaking of industrial action when the Employees embark upon it. In Skilled Engineering Limited v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (2001) 108 IR 116 at 119 Finkelstein J relied upon evidence of union organisers having been involved in discussions with employer management about the two issues of concern which caused workers to walk off the site, to suggest that they had a role to play in organising the strike. (There were additional affidavits and a failure to deny the unions were concerned in the strike which supported such an inference being drawn).
63 Ground 5(c) contends that the Industrial Magistrate was in error in acting on the erroneous principle that the actions of the Employees (the Union's members) or the site steward could constitute engagement in industrial action by the Union for the purposes of the relevant provisions of the Act. In argument in reply the appellants relied on Kelly v Construction, Forestry, Mining and Energy Union (1994) 56 IR 373 at 380-381 and Rowe v Transport Workers' Union (1998) 90 FCR 95 at 112 which in turn cited Tesco Supermarkets Ltd v Nattras (1971) 2 WLR 1166. The submission is that the provisions at issue in these decisions were 'widening' provisions of which there is no equivalent in the legislative provisions in issue here. The essential point of the submission for the appellants was that the Union is a separate juristic entity so that, absent evidence the Union was authorised to act on behalf of the Employees, the latter cannot be liable for the actions of the Employees. Added to this was the submission that there was no evidence of membership before his Honour.
64 These submissions fall, firstly, because a proper understanding of the Constitution of the Union shows that it is not a separate juristic entity from its members, in this case the Employees. Secondly, the absence of provisions such as those at issue in Kelly and in Rowe does not mean that the evidence pertaining to the Union cannot establish the nature of its juristic character. As Cooper J stated in Rowe at 112, it is only after the relevant facts are ascertained that the issue of the conduct of an individual in relation to the body corporate becomes a question of law.
65 Thirdly, as to evidence of membership, the appellants contend that the evidence of Mr Levy could not be taken into account because he was not the agent or representative of the Union, as they juridically perceive it. Likewise they contend the evidence of the actions of the Employees was not relevant on the basis this is not conduct of the Union, as they perceive it. That, in their submission, left the evidence only of Mr Aleknavicius, Mr Powell and Mr Molina. Of these, Mr Powell on the evidence spoke against the Employees going out.
66 However, these submissions are grounded in the error of perception of the Union as juridically separate from its members. Additionally there was evidence Mr Levy and Mr Aleknavicius were members of the Union who participated in the meetings and left the Project. There is also their evidence on what the other Employees did. Their evidence included reference to actions of Employees of the Employer capable of breaching the Agreement. There was therefore evidence from which the Industrial Magistrate could draw inferences relevant to the finding of a breach.
67 In short I do not perceive any error of law or of fact by the learned Industrial Magistrate in terms of the issues raised by these grounds.