29 By notice of appeal filed 30 May 2002, the appellants seek that the orders dated 9 May 2002 imposing penalties on the appellants, the CFMEU and Ravbar, be set aside. The appellants contend that Cooper J fell into appellable error in the 2000 judgment by finding that the CFMEU and Ravbar had engaged in conduct in contravention of s 298P(3) on 29 January 1999 and that the CFMEU engaged in conduct in contravention of s 298P(3) on 26 February 1999. In addition, it challenged various findings of fact.
30 Counsel for the appellants acknowledged the advantages that the trial judge has in assessing conflicting testimony of witnesses. The appellants contend, however, as was acknowledged by the High Court in State Railway Authority v Earthline Constructions (1999) 160 ALR 588, the trial judge's view even as to actual findings is not immune from appeal.
31 The appellants challenge the finding by the trial judge that Ravbar said words to the effect, "We want Leroy removed from the site" and that McHugh said words to the same effect. It was submitted that the evidence was that Lilley said that Ravbar had used the words; Parkinson said that McHugh had used them; Ravbar denied using the words, and did not recollect them being used; Kersey did not recall the words being used; Papadimitriou recalled the words being used but could not remember who used them. Cooper J found that Ravbar used the words by rejecting Ravbar's denials and relying on the evidence of Lilley and Papadimitriou, and his Honour found that McHugh used the words, relying on the evidence of Parkinson. These findings, it was submitted:
"… ignores the fact that out of the six witnesses who gave evidence of the conversation, three of whom were called by the Respondent, only Lilley gave evidence that Ravbar used the words …
none of them said that both Ravbar and McHugh used the words."
32 In our view, it was clearly open to the primary judge to find as he did. The primary judge noted:
"I am satisfied that the conversations were fragmented and that McHugh attempted to intrude into the conversation between Lilley and Ravbar …"
33 The finding that Ravbar had engaged in the conduct pleaded against him is not undermined by the circumstance that the primary judge also found McHugh to have made a statement concerning the removal of Leroy from the site, which conduct was not pleaded.
34 This is a case which clearly falls within the observation by the High Court is Devries v Australia National Railways Commission (1993) 177 CLR 472 where Brennan, Gaudron and McHugh JJ said at 479:
"If the trial judge's finding depends to any substantial degree on the credibility of the witness, the finding must stand unless it can be shown that the trial judge 'has failed to use or has palpably misused his advantage' SS Hontestroom v SS Sagaporack, [1927] AC 37, at p 47. or has acted on evidence which was 'inconsistent with facts incontrovertibly established by the evidence' or which was 'glaringly improbable'."
The recent observation by McHugh J in Rosenberg v Percival (2001) 205 CLR 434 at par 41 is also apposite:
"Where a finding is based on credibility and other facts support the finding, the case would need to be exceptional before an appellate court could set aside the finding on the ground that, judging by the transcript, the trial judge gave insufficient weight or consideration to other facts and circumstances in the case. The common law tradition is an oral tradition. Trial by transcript can seldom be an adequate representation of an oral trial before a judge or an oral trial before a judge and jury."
35 The appellants next challenge the finding that the conduct on 29 January 1999 and 26 February 1999 was engaged in with a view to achieving the removal of Leroy from the site because he would not join an industrial association. The appellants contend that a proper analysis of the evidence would lead to no other conclusion than that Ravbar and McHugh thought that Leroy was already a member of the BLF but was unfinancial, and that they were seeking that he pay his outstanding membership dues.
36 While it is clear that there was considerable evidence concerning payment of what was said to be outstanding membership dues, the sequence of events as found by the primary judge permitted the conclusion that on 29 January and 26 February 1999, the conduct of Ravbar and McHugh was directed at having Leroy removed from the site. McHugh gave evidence that on 29 January he spoke with Leroy and told him that he owed the BLF $985 in outstanding membership fees, and that Leroy said words to the effect: "I'm not joining your union" and " You can talk to my solicitor."
37 The primary judge accepted Leroy as an honest witness and accepted his evidence that the following conversation occurred between him and McHugh:
"McHugh said words to the effect: 'We are not after the money all we are after is for you to get back in the union.'
I said words to the effect: 'Look I have already told you this is against my principles and you won't get me to join the union.'
McHugh said words to the effect: 'Well I have to go and see Roger to get him to remove you from the site.'
I said words to the effect: 'Well go ahead matey see if I care'." [Emphasis added]
38 Subsequent to that exchange, there was a meeting held at the McConnell Dowell site office and the evidence of Lilley, which the trial judge accepted as correct, was as set out in par 16 of these reasons, including the statement by Ravbar that "We want Leroy removed from the site … because he doesn't want to join the union." There was evidence to support the primary judge's finding that the demand that Leroy be removed from the site was because of his failure to join the union, not for his failure to pay outstanding membership dues.
39 The appellants further contended that the evidence does not support the finding that the union officers were seeking to injure Leroy in his employment or alter the position of Leroy to his prejudice, it being contended that seeking that Leroy be transferred to another site did not necessarily mean that he would receive lesser benefits or entitlements. The primary judge found:
"To refuse to allow Leroy to work on the site would have deprived him of the opportunity to earn income and denied him the benefits and entitlements which he enjoyed under the Site Agreement. Such deprivation would be to injure an employee in his employment and to alter the position of an employee to the employee's prejudice: Linehan v Northwest Exports Pty Ltd (1981) 57 FLR 49 at 62."
40 The evidence does not permit the conclusion that Leroy could be transferred to other sites at which Candid Hire worked so that a "transfer" would be possible. The primary judge noted:
"Notwithstanding that Lilley advised that he could not employ Leroy off site because he did not have work for him to do, Ravbar and McHugh persisted in seeking his removal."
Moreover, in our view, merely seeking the removal of someone from a work site such that it would be no longer possible for that worker to work at the site, is sufficient to constitute injury to them in their employment or for them to have suffered a prejudicial alteration to their position. That is so, in our opinion, irrespective of the fact that they might be able to obtain more lucrative work elsewhere.
41 In the NUW case, it was said at par 74:
"… If someone seeks to have an employee removed from a worksite such that it would no longer be possible for him to work at the site, it seems to me that he will have been injured or suffered a prejudicial alteration to his position. The fact that he might attain similar or better work somewhere else, just as he might win the Lottery, or become very much worse off is in my view irrelevant to the statutory scheme. Once sufficient evidence of his position is led as to make it possible to ascertain what the possible effect on his position at the time would have been, it is not necessary to delve into the other possibilities that might have ensued."
42 Next it was argued that the primary judge erred in finding that the conduct of Ravbar and McHugh on 29 January 1999 was intended by them to encourage or incite Lilley, as the person controlling the affairs of the employer of Leroy, to take action to have Leroy removed from the site because he was not, and refused to become, a financial member of either the CFMEU or the BLF. The claim is made that the prohibited reason in 298L(1) of the Act makes no reference to refusal to be a "financial" member of the union. The submission is that freedom of association provisions would not protect someone who had agreed to join the union and then refused to pay the fees. It is said that his Honour fell into error by his reference to financial membership.
43 In our view, the primary judge's use of the term "financial member" was not being used to discriminate between financial and unfinancial membership. It is plain, in looking at the reasons for judgment as a whole, that the primary judge found that the prohibited reason relied on by the respondent, being a refusal to become a member of a union, was made out.
44 The appellants contend that there was no evidence of a threat of industrial action against Candid Hire, the employer of Leroy, with the consequence, it was said, that the finding of a contravention of 298P(3)(b) of the Act cannot stand. However, his Honour found:
"The conduct of McHugh on 26 February 1999 was with the intention of having Leroy removed from the site. The words 'how many jobs do you have in Brisbane', the statement 'Within two minutes I'll notify all the delegates to target all your sites' and the statement 'We can stop all the work if we have to', in conjunction with producing a pager from his pocket, constituted a threat to take industrial action as defined in s 298(B)(1) of the Act. The conduct was intended to encourage or incite Lilley, and through him Candid Hire as the employer of Leroy, to remove Leroy from the site because Leroy refused to become a member of an industrial association and thereby to injure Leroy in his employment or to alter the position of Leroy to his prejudice." [Emphasis added]
45 The primary judge rejected a submission that McHugh was on site acting in the interests of the BLF as a state organisation alone, and was not acting as an officer of the CFMEU. The primary judge found that McHugh's conduct was engaged in as an officer of both the CFMEU and the BLF. On 26 February 1999 he was continuing to act in that capacity and for the same purpose he was on 29 January 1999.
46 In his oral evidence McHugh admitted that he was an officer of the CFMEU and that his permit as an officer of the CFMEU, the federal organisation, was the permit he used to enter the site at Oakey. There was evidence from Kersey, who was an organiser of the CFMEU for fourteen years, that if a person joins the BLF "they become a member of the Federal Branch of the CFMEU."
47 This submission on behalf of the CFMEU ignores the reality of the position. The conduct of Ravbar and McHugh was directed at securing site coverage at Oakey for the CFMEU, the union which party to the site agreement.
48 In our judgment, none of the grounds seeking to impugn the findings of contraventions of the Act by the first and second appellants has been made out. We have set out our reasons in respect of those grounds warranting such consideration.
49 Turning to the question of severity of penalties, the contention by the appellants is that the primary judge erred in the severity of penalties he imposed on them. As what might be thought to be particulars of that broad ground, the appellants assert:
"14. In his judgment on 9 May 2002 Cooper J erred by finding that there is nothing in the circumstances of the case to ameliorate the penalty to be imposed.
15. In his judgment on 9 May 2002 Cooper J erred by finding that it is simply a case where nothing is known as to the antecedents and subsequent conduct of those who have committed the breach.
16. In his Judgment on 9 May 2002 Cooper J erred by failing to take account of the undisputed fact that the Appellants had never previously been found to be engaged in contravention of Part XA of the Act and that there had been no findings of such a contravention since 22 December 2000.
17. In his judgment on 9 May 2002 Cooper J erred by failing to take account the fact that the conduct was not undertaken in deliberate defiance or disregard of the Act.
18. In his judgment on 9 May 2002 Cooper J erred by failing to take account the fact that there were no consequences that arose as a result of the contraventions."
50 The Employment Advocate had submitted on penalty that the conduct struck at the heart of the principles of freedom of association created by Part XA of the Act, and was done in deliberate defiance or disregard of the relevant provisions of the Act, and that if the conduct had procured the removal of Leroy from the site the consequences would have been serious. He submitted that the penalties to be imposed should be at the upper end of the range. The respondents had submitted there should be no penalties for the industrial associations, and only at the lower end of the range for the individual union officials, and submitted that the penalties sought by the applicant bore no proportion to the contraventions which had occurred.
51 The primary judge said:
"The factors relevant to the imposition of a penalty for a contravention of Part XA of the Act have been considered in a number of cases, and include:
(a) the circumstances in which the conduct occurred;
(b) seriousness and audacity of breaches;
(c) the deliberateness of the breach;
(d) past record of like behaviour;
(e) any contrition;
(f) harmful consequences suffered;
(g) the need for deterrence."
His Honour referred by way of example to: Construction, Forestry, Mining and Energy Union v Coal & Allied Operations Pty Ltd (No 2) (1999) 94 IR 231 at 232; Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v DMG Industries Pty Ltd (1999) 89 IR 360 at 364 - 365; The Age Company Ltd v Automotive, Food, Metal, Engineering, Printing and Kindred Industries Union [2000] FCA 1757 at [19]; Seven Network Operations Ltd v Communications, Electrical, Electronic, Energy Information, Postal, Plumbing and Allied Services Union of Australia [2001] FCA 672 at [3] - [4]; Employment Advocate v National Union of Workers [2000] 99 IR 376 at 377 - 378)("the NUW case).
52 Concerning the question of the severity of the penalty imposed on the fourth respondent, the primary judge said of the third respondent:
"The penalty to be imposed against the third respondent requires that it act as a deterrent to him and others who might be like-minded to engage in the 'bully-boy' practice of industrial relations. It is difficult to see anything ameliorating in the circumstances of the third respondent's behaviour, other than it was unsuccessful in bringing about the desired result."
His Honour imposed a penalty on the third respondent of $1,500.
53 Of the fourth respondent the primary judge made the observations set out in par 27 above.
54 In our judgment no basis exists to interfere with the penalty imposed on Mr Ravbar, and his appeal must be dismissed.
55 As to the severity of the penalty imposed on the CFMEU, as earlier indicated, it was submitted to the primary judge on its behalf that no penalty ought to be imposed against it, because "it had only been caught by the deeming provision of 298B(2) of the Act." That section provides:
"For the purposes of this Part, action done by one of the following bodies or persons is taken to have been done by an industrial association:
(a) the committee of management of the industrial association;
(b) an officer or agent of the industrial association acting in that capacity;
(c) a member or group of members of the industrial association acting under the rules of the association;
(d) a member of the industrial association, who performs the function of dealing with an employer on behalf of the member and other members of the association, acting in that capacity.
In his judgment, the primary judge outlined the submissions by counsel on behalf of the CFMEU that:
"… there can be no question of a deliberate disregard and defiance of the provisions of Part XA of the Act by the organisations, and, no matter what can be said about the conduct of their officers, the same cannot be said of the organisations."
56 The primary judge said that this submission was "misconceived". This squarely raises the question of whether the CFMEU should have been punished on the basis of a deliberate disregard and defiance of the provisions of Part XA of the Act by it because it led no evidence to establish the contrary. That is what the primary judge seems to have held. That raises the ancillary question of whether it has to be established positively that there was on the part of the CFMEU a deliberate disregard and defiance of the provisions of Part XA of the Act.
57 The primary judge in this regard said:
"20. The statutory intention underlying s 298B(2) is to make the organisation responsible for the conduct of its officers. It is intended to encourage those organisations to take active steps to control the actions of its officers, servants and agents to ensure as far as is possible by taking all reasonable steps, that the conduct of them is not in contravention of Part XA of the Act. It was not intended that an industrial organisation could avoid the serious consequences of conduct engaged in by its officers, servants or agents, deliberately and flagrantly in contravention of the Act, by simply doing nothing to control or prevent it, or by turning a blind eye to the conduct. If an industrial organisation turns a blind eye, or does not concern itself as to the manner and methods employed by officers, servants or agents of the industrial organisation to achieve what they see as the organisation's ends, the organisation is at risk of being heavily penalised where the means adopted are prohibited and exhibit the worst features of the proscribed conduct.
21. In the present case, the first and second respondents have chosen to give no evidence as to what those in authority knew of the conduct of the third and fourth respondents at and prior to the matters complained of. Nor is there any evidence as to what, if any, action was taken by the organisation to counsel, or moderate the behaviour of, the officers for the future.
22. The absence of any material in this regard, counsel for the respondents submits, means that a penalty must be imposed on the basis that there has been no prior infringement by the organisations or the officers, and that there has been no subsequent infringing conduct.
23. In my view, the absence of material of this type means that there is nothing in the circumstances to ameliorate the penalty to be imposed having regard to the seriousness of the conduct if left unexplained. It is simply a case that nothing is known as to the antecedents and subsequent conduct of those who have committed the breach.
24. In this respect, the case is distinguishable from the decision in Employment Advocate v National Union of Workers relied upon by the first and second respondents as authority for the proposition that no penalty should be imposed on them. In the NUW Case, those in authority in the union gave evidence which was not challenged, that at no stage did they have any knowledge of the conduct of the officer or give the officer any specific authorisation for his conduct: 99 IR 376 at 381 par [21]. It was this circumstance which persuaded Einfeld J not to impose a penalty on the union. That is not this case.
25. In the conduct of these proceedings, there is nothing to suggest that the organisations regarded anything that the third or fourth respondent did in the circumstances complained of as wrong. Further, there is nothing to suggest that either the organisations or the officers are in the slightest degree contrite for what has occurred."
58 There is a real difficulty occasioned by the reference in par 22 of the 2002 Judgment to "material in this regard" and the reference in par 23 to "material of this type". It is clear that the question of proven contraventions is a different matter from evidence from the unions as to their knowledge of the conduct at the time of or prior to its commission, or to any subsequent action taken by them "… to counsel, or moderate the behaviour of, the officers in the future." The difficulty in this regard is compounded by the use of the word "antecedents", in par 23 of the 2002 Judgment which, it might be thought, probably ought to read "antecedent".
59 Nonetheless, reading the passage of the primary judge's reasons set out above as a whole, the reference seems to import a requirement for the union to lead evidence of the kind specifically referred to by the primary judge in par 24 as being led in the NUW case. The primary judge proceeded on the basis that there was nothing to suggest that the organisations regarded anything that the third or fourth respondent did in the circumstances complained of as "wrong".
60 Yet, it has to be said that there is nothing to suggest that the organisations regarded anything that the third or fourth respondent did in the circumstances complained of as being "right".
61 It seems to us that the primary judge proceeded on the basis that in the absence of evidence of the kind led in the NUW case, the CFMEU had engaged in a deliberate disregard and defiance of the provisions of Part XA of the Act. There is, in our view, no onus on a respondent to an application for a penalty to lead evidence of ignorance in order that the penalty imposed against it should be ameliorated.
62 Consequently, the process of imposing a penalty on the CFMEU proceeded on a wrong basis. The penalty imposed has to be set aside, and a fresh penalty imposed.
63 There is, in our view, no evidence that the CFMEU "turned a blind eye" or did not concern itself as to the manner and methods employed by its officers, servants or agents. The CFMEU is to be penalised on the basis that its officer engaged in what the primary judge accurately described as "the 'bully-boy' practice of industrial relations." By s 298B(2), the CFMEU is to be penalised for that conduct. Conduct of that type had not happened prior to the offence in question, nor subsequently.