Cozadinos v Construction, Forestry, Mining and Energy Union

The alleged discrimination 70 The contravention of s 45(1) of the BCII Act was pleaded as having been constituted by four conversations. The first two were said to have occurred at the Epsom site on the afternoon of 24 June 2008, after Mr Bell had seen Mr Sawyer on the Epsom site. The first of those conversations was alleged to have taken place in Mr Vagg's office. Mr Bell is alleged to have told Mr Vagg that unless Mr Sawyer "and his blokes are union members and he is signed up to an EBA, they won't be starting." The second conversation was alleged to have taken place near the western exit of the Epsom site. Mr Bell is alleged to have told Mr Vagg that he had an understanding with Mr Herkess that anyone employed on the Epsom site was to be signed up to an EBA and union members. The third conversation is alleged to have taken place at approximately 7.30 pm on 24 June 2008, when Mr Bell telephoned Mr Vagg. During the conversation, Mr Bell was alleged to have been shouting and to have said: (a) the brickie you have on the job is not starting, he's got no paperwork, not union and he is not working on the job; (b) the arrangement with Phil was that if he has not got an EBA or union, he's not on the job; (c) no EBA, no union, Sawyer will not be starting on the job. 71 The fourth conversation was to have occurred on the following day, 25 June 2008, when Mr Bell telephoned Mr Bongartz. Mr Bell is alleged to have said: (a) you are a fucking idiot for wanting to employ Sawyer; (b) Sawyer has not done the right thing by having an EBA and he owes money to a lot of people; (c) I know you have had dealings with him in the past but Becon must not employ Bob Sawyer. 72 These conversations were alleged to have constituted discrimination by Mr Bell against Bendigo Scaffolding on the ground that the employment of Bendigo Scaffolding's building employees was not covered by an industrial instrument made with a particular person, the CFMEU, in contravention of s 45(1)(a)(ii) of the BCII Act, or on the ground that it was proposed that the employment of Bendigo Scaffolding's building employees not be covered by an industrial instrument made with a particular person, the CFMEU, in contravention of s 45(1)(b)(ii) of the BCII Act. 73 Mr Vagg's evidence as to the first conversation was that Mr Sawyer was in his office and they were having a conversation about the Epsom site job. Through the window, Mr Vagg could see Mr Bell talking to Mr Rankin and the CFMEU's shop steward from another site. Mr Sawyer left the office. Mr Vagg saw Mr Bell glare at Mr Sawyer and then walk towards him. Although Mr Vagg could not see them talking, he could hear a muffled conversation taking place outside his office. When it finished, Mr Bell and the other two persons he had been with entered the office. After greetings, Mr Bell asked "Who was that?" after being told it was Mr Sawyer, Mr Bell said to Mr Vagg that unless Mr Sawyer had an EBA and his workers were signed up union members, he would not be starting. Mr Vagg protested that this was not right, that Mr Bell knew that, that it was against the law, that anyone could work on a job, and no-one had to have an EBA. Mr Bell again said unless they had an EBA and were signed up they would not be starting. 74 The four persons then left Mr Vagg's office and walked towards the western exit of the site. This was when the second conversation was alleged to have occurred, close to the western exit. Mr Bell said that there had been an agreement with Mr Herkess that an EBA and union membership was necessary. Mr Vagg again protested, saying that Mr Bell knew that was not right, that they knew that Mr Herkess would not have done that and that it was not necessary to have an EBA to start on the job. Mr Bell is alleged to have repeated that that was the agreement that they had made with Mr Herkess. He is alleged to have said "No EBA, no start." 75 Neither Mr Rankin nor the shop steward from the other site was called to give evidence. No reason was given by either side for the failure to call them. There was no suggestion that Ms Cozadinos had access to statements by them and had elected not to call them because their evidence would not have been favourable to her case. The question whether Ms Cozadinos had a duty of fairness analogous to that of a prosecutor in a criminal trial, requiring the calling of all eyewitnesses to an incident, without selecting them on the basis of the favourability of their evidence to the prosecution case, was not addressed. 76 In his evidence, Mr Vagg was not clear as to whether these two conversations on the site took place on 23 or 24 June 2008. He was inclined to think that it was on 23 June, and that the telephone conversation alleged to have constituted part of the contravention of s 45(1) of the BCII Act took place in the evening on the same day. Mr Vagg's daily diary for 23 June 2008 contained no entry at all. On 24 June, there were the four entries to which I have referred in [38] above. Notwithstanding that these entries indicated that the events of which Mr Vagg gave evidence took place on 24 June, he was still inclined to think that they had taken place on the preceding day and that he had entered them in the diary for the wrong day. 77 Each day, Mr Vagg completed a daily report. This contained a record of employees on the Epsom site, the number of hours they had worked, and the activities that had been accomplished. It contained a record of the subcontractors who had been on site, the number of men, the number of hours and the activities they had been engaged in. It also recorded suppliers and materials they had supplied. Finally, there was a section headed "REMARKS - VISITORS - DELAY". These reports were filled out in the office on the Epsom site. Subsequently, they were sent in bundles to the Becon Head Office, along with invoices for processing and payment. Mr Vagg said he did not always manage to complete a day's daily report by the end of that day, and sometimes added things on the following day. In Mr Vagg's daily report for 24 June 2008, there is an entry in the first line of the last section that reads "JASON BELL CALLED IN ABOUT 2.30 PM". At the time when Mr Vagg was first interviewed by an inspector appointed under the BCII Act with respect to the alleged conversations, that was the only entry in that section of the daily report for that day. The daily report was tendered by counsel for Ms Cozadinos in that form. Subsequently, Mr Vagg could not remember when, he added a further entry two lines below, reading "Bob Sawyer Bricklayer". These words appear in a later copy of the report, tendered by counsel for the CFMEU and Mr Bell. 78 It is clear, and it is accepted by counsel for Ms Cozadinos, that Mr Bell was not on the Epsom site on 23 June 2008. Records of calls made from his mobile telephone on that day show him to have been a considerable distance from Bendigo. Those records do show that Mr Bell was at or near the Epsom site on the afternoon of 24 June 2008. Mr Bell accepted in his evidence that he was at the Epsom site on that afternoon. Mr Sawyer gave evidence that he visited the Epsom site only on three occasions, none of which was 24 June 2008. Indeed, having withdrawn the Bendigo Scaffolding quotation by means of the 24 June fax, sent shortly after midday on that day, Mr Sawyer had no reason to go to the Epsom site that afternoon. It was not until the Friday of that week that he collected the concrete blocks that had been delivered on the afternoon of 23 June or earlier. Further, both Mr Sawyer and Mr Bell gave evidence that neither had ever spoken to the other except by telephone. Neither had even seen the other until they both attended at the Court for the trial of this proceeding. It follows that Mr Vagg's recollection of the events prior to his first conversation with Mr Bell in the site office, to which I have referred in [73]-[74] above, was incorrect. Mr Sawyer was not in the site office talking to Mr Vagg. Mr Bell did not confront Mr Sawyer after he had left the office. There was no conversation between them. It is therefore very unlikely that Mr Bell asked, "Who was that?" after coming into Mr Vagg's office. Mr Vagg refused to concede that he might have been wrong about the presence of Mr Sawyer. He became more adamant, and increasingly strident, when pressed about the accuracy of his version of the events. He was not able to explain why he had made the subsequent alteration to his daily report. He conceded that the conversations he recalled were the kind of thing that he had been instructed to record in his daily reports, but was unable to explain why he had not made any specific reference to them. 79 Mr Vagg's recollection, or reconstruction, that the telephone conversation he had with Mr Bell occurred on the evening after the conversations at the Epsom site is also proved incorrect by the telephone records. As I have said in [34] above, the telephone records show two calls by Mr Bell to Mr Vagg, one before and the other after Mr Bell's telephone call to Mr Sawyer on the evening of 23 June 2008. The diary entry at the foot of the page of Mr Vagg's diary for 24 June 2008 is incorrect. Mr Vagg could not recall why he had used the word "AGAIN" in that diary entry, unless it was to signify that he had seen Mr Bell earlier in the day. Mr Vagg had not seen Mr Bell earlier in the day on which he had the telephone conversation with him. Mr Vagg could only remember one telephone conversation during an evening. I have summarised the evidence about that conversation in [38]-[40] above. 80 Mr Bongartz gave evidence of a telephone call he received from Mr Bell on the morning of 25 June 2008. The records of Mr Bell's telephone calls did not disclose that he made any such call, but Mr Bongartz was not cross-examined to the effect that the call did not occur. According to the evidence of Mr Bongartz, Mr Bell became louder, more aggressive and more abusive as the call proceeded. Mr Bongartz tried asking him to calm down, and tried to talk over him to do so, but Mr Bell continued to talk. Mr Bell asked why Mr Bongartz was employing Bob Sawyer. He said that Mr Sawyer owed a lot of money to a lot of people, and did not have an enterprise bargain agreement. Mr Bell referred to an agreement between Becon, through Mr Herkess, and the CFMEU as to EBAs. Mr Bongartz said that Mr Bell swore at him and told him he was "a fucking idiot". Being unable to calm Mr Bell, Mr Bongartz terminated the conversation by saying "I'll see what I can do" and hanging up. 81 Mr Bongartz also said that he received a phone call from Mr Sawyer on the same morning, before Mr Bongartz saw the fax message sent on the evening of 23 June 2008. Mr Sawyer could not remember any conversation with Mr Bongartz after the withdrawal of Bendigo Scaffolding's quotation. It is unlikely that Mr Sawyer would have made any such call on 25 June 2008, to tell Mr Bongartz that he had withdrawn, as the withdrawal had been effected by the sending of the 24 June fax on the previous day. 82 In cross-examination, Mr Bongartz agreed that Mr Bell complained to him about Becon engaging Bob Sawyer, asserted that Bob Sawyer owed money to people, complained that Bob Sawyer didn't have an agreement with his workforce, and said that Mr Herkess had an agreement with the CFMEU or Mr Bell that subcontractors would have an agreement with their workforce. When asked whether, effectively this was the extent of the conversation, he replied, "In a nutshell; yes." 83 Mr Bell conceded that he was at the Epsom site on the afternoon of 24 June 2008. He did so on the basis that the telephone records showed that he was in the area. He had no recollection of any conversation on the Epsom site on that occasion. He denied saying that Mr Sawyer and his employees must be union members, and that Mr Sawyer must be signed up to an EBA. He denied saying that, unless Mr Sawyer and his employees were union members, they would not be starting. He denied saying that, unless Mr Sawyer was signed up to an EBA, he would not be starting. He did so on the basis of his usual practices and his knowledge of the boundaries separating what he could say from what he could not say. He could not recall mentioning to Mr Vagg any conversation with Mr Herkess. Mr Bell said he had had a conversation with Mr Herkess approximately six months before the project started. Mr Herkess had said that he would try and ensure that contractors on his projects had some sort of agreement in place. Mr Bell said he did not mention to Mr Herkess the question of union membership. 84 The cross-examination of Mr Bell was to the effect that, because of what he had heard about Mr Sawyer, he would have been troubled. Counsel for Ms Cozadinos invited him to give evidence as to what he would have done usually in such a case. Mr Bell said that he would have spoken to someone in management who was about to employ a subcontractor he believed was not doing the right thing by the subcontractor's workforce. He would have a discussion with that management person. From time to time he would ring the subcontractor himself. He denied that he would have become frustrated to the point of saying things that he did not particularly intend to say. Mr Bell said he had a relationship with Mr Vagg, and would invite Mr Vagg to check the subcontractor's status with industry funds and see whether the subcontractor had some sort of industrial mechanism in place. It was put to him that he would ask whether the subcontractor had an EBA. He said he would not use the term "EBA", but would ask if they had some sort of agreement. He conceded that an EBA would be his preference, because that is what he was paid to do. Mr Bell said that it was frustrating when management would not assist, but that he would not press the matter. He conceded that it was possible that he had spoken aggressively to Mr Vagg. He said it may have been the evening of a frustrating day and the conversation may have ended a little bit heated, with raised voices. He denied that he would use words to the effect of "No EBA, no union membership, no start". 85 I am not able to find on the balance of probabilities, having regard to the penal nature of the proceeding and the gravity of the conduct alleged, that Mr Bell said to Mr Vagg words to the effect that Mr Sawyer would have to have an EBA, that his employees would have to be union members, that they would not be allowed to start on the site if these requirements were not met, and that there was an agreement with Mr Herkess that all subcontractors had to have EBAs and union membership. Mr Vagg's reconstruction of the events of the afternoon of 24 June 2008 is obviously flawed. If there were conversations between him and Mr Bell on that day, they did not take place in the circumstances recounted by Mr Vagg. Mr Sawyer was not on the site, not in Mr Vagg's office and not talking about the Epsom site project, because he had already withdrawn Bendigo Scaffolding's quotation, and 24 June 2008 was not one of the days on which he attended at the Epsom site. He therefore did not have any form of confrontation with Mr Bell. Mr Bell therefore did not ask Mr Vagg, "Who was that?" Although there is no evidence to this effect, it is probable that Mr Bell did not know that Mr Sawyer had withdrawn Bendigo Scaffolding's quote earlier that day. It is therefore possible that he did speak to Mr Vagg about Mr Sawyer. I am not prepared to reject Mr Bell's evidence that his usual practice was not to say things of the kind alleged, and that he did not depart from his usual practice on that day. I am not prepared to accept Mr Vagg's evidence of the content of the conversations, particularly when it is given in the context of the clearly false recollection Mr Vagg had of the circumstances in which the conversations occurred and his subsequent falsification of his daily report, apparently to make it consistent with his reconstruction. 86 For reasons that I have already given, again I cannot find on the balance of probabilities that Mr Bell said words to the effect of those alleged against him in the telephone conversation with Mr Vagg on the evening of 23 June 2008. 87 Mr Bell could not remember any phone call to Mr Bongartz on 25 June 2008. He conceded that, if he came across someone who was not looking after their workforce, and owed a lot of money around town, he probably would call someone "a fucking idiot" for employing that person. In cross-examination, Mr Bell said that when he was dealing with a case where he believed a subcontractor was not doing the right thing by his workforce, his first port of call would be to management of the company that was about to employ him. Mr Bell disagreed that he would have been trying to persuade the management of Becon not to permit Mr Sawyer, through a corporate entity, to work on the Epsom project. He indicated that on the Epsom project there were a number of subcontractors who didn't have agreements in place and said, "that is something I definitely would not say." He denied that he would have singled out Mr Sawyer for special treatment, saying that he would have had hundreds of other similar concerns around the state at the same time. He said that he always tried to deal with those situations inside the guidelines of the law. He denied that frustrations ever took him outside the law. He denied that on the particular occasion frustrations got the better of him and caused him to say "No EBA, no union membership, no start". 88 Once again, having regard to the penal nature of the proceeding, and to the gravity of the conduct alleged, I am not able to be satisfied on the balance of probabilities that this element of Ms Cozadinos's case is made out. There must be a real doubt as to whether such a conversation ever took place. Mr Bongartz was clearly mistaken about receiving a telephone call from Mr Sawyer on the morning of 25 June 2008, when Mr Sawyer had no occasion to ring him. The absence of any record of a telephone call from Mr Bell to Mr Bongartz suggests that Mr Bongartz may have also been mistaken about receiving a call from Mr Bell on that morning. It is true that, at that time, Mr Bell may not have known about the withdrawal of Bendigo Scaffolding's quotation (although there is no evidence as to when he found out about that withdrawal), so he might still have been seeking to engage management of Becon in discussions about whether it was appropriate to engage Mr Sawyer. If he did make a telephone call, particularly having regard to my acceptance of his evidence about his general method of operation (in the absence of challenge to that evidence), and Mr Bongartz's ready acceptance of the propositions put to him in cross-examination, I am not satisfied on the balance of probabilities that Mr Bell said words to the effect that Mr Sawyer would not be allowed to start unless he had an EBA and his employees were members of the CFMEU. 89 Even if I had been satisfied that Mr Bell did tell Mr Vagg in the telephone conversation on the evening of 23 June 2008, in two conversations on the Epsom site on 24 June 2008, and Mr Bongartz in a telephone conversation on 25 June 2008, that Mr Sawyer would not be allowed to start on the Epsom site without an EBA and union membership of his employees, it is still necessary to consider whether those statements, in the circumstances in which they were made, amounted to discrimination against Bendigo Scaffolding, within the meaning of s 45(1) of the BCII Act. The word "discriminate" used in that subsection is not the subject of any definition in the BCII Act. Counsel for Ms Cozadinos relied on Helal v McConnell Dowell Constructors (Aust) Pty Ltd [2010] FCA 1462 (2010) 193 FCR 213 at [24], where Ryan J said that, in the context of s 45(1) of the BCII Act, there is nothing to suggest that the term "discriminate" should not be allowed its full and ordinary meaning. His Honour rejected an argument that would restrict the scope of the term "discriminate" to conduct targeted against a specific identifiable person. That statement was made in the context of a case in which summary dismissal was sought of an application in which it was alleged that a construction contractor had engaged a subcontractor to perform part of a construction project. The subcontractor in turn had engaged another party to provide labour. It was alleged that the head contractor had discriminated against the labour provider by terminating its agreement with the subcontractor. The construction contractor sought summary dismissal of the proceeding on the basis that it could not have discriminated against the labour provider, with which it had no contractual or other relationship. It was in this context that Ryan J resorted to the dictionary. His Honour was not purporting to define the word "discriminate", as it is used in s 45(1) of the BCII Act, exhaustively. 90 The present case involves an issue different from that in McConnell Dowell, not only by reason of the fact that the judgment in this case is a final judgment, determining the issues, whereas the judgment in McConnell Dowell was an interlocutory judgment, in which the task of the Court was to determine whether there was a reasonable prospect of success. In the present case, it was not argued that the respondents could not have discriminated against Bendigo Scaffolding because there was no direct relationship between the respondents and Bendigo Scaffolding. Rather, there is an issue as to whether whatever was said on the afternoon of 24 June 2008 and the morning of 25 June 2008 could amount to discrimination for the purposes of s 45(1) of the BCII Act. The issue is whether it is possible to discriminate against a person, within the meaning of that provision, by the uttering of words that are incapable of producing any effect. 91 The Macquarie Dictionary defines "discriminate" as an intransitive verb as meaning: 1. to make a distinction, as in favour of or against a person or thing: to discriminate against a minority. 2. to note or observe a difference; distinguish accurately: to discriminate between things. 92 As a transitive verb, the Macquarie Dictionary defines "discriminate" as: 4. to make or constitute a distinction in or between; differentiate: to discriminate one thing from another. 5. to note or distinguish as different. Similarly, the Oxford English Dictionary defines the verb "discriminate" relevantly as follows: 1. trans. To make or constitute a difference in or between; to distinguish, differentiate. … 2. To distinguish with the mind or intellect; to perceive, observe, or note the difference in or between. … 3. a. intr. or absol. To make a distinction; to perceive or note the difference (between things); to exercise discernment… b. to discriminate against: to make an adverse distinction with regard to; to distinguish unfavourably from others. With indirect pass. 93 In an appropriate context, "discriminate" can mean no more than to distinguish one thing from another, or to express a preference for one thing over another. I discriminate between types of music, or types of food, when I say that I prefer one to the other. If s 45(1) of the BCII Act were to make discrimination of this kind subject to a penalty, it would be a gross derogation of the right of free speech. Any person ought to be able to express an opinion that the employment of building employees ought to be on terms and conditions derived from a particular kind of instrument or other source. Only if s 45(1) could not reasonably be construed without such an intrusion into freedom of speech should it be construed as comprehending that intrusion. Section 15AA of the Acts Interpretation Act 1901 (Cth) requires the Court to prefer a construction that would promote the purpose or object underlying an Act to a construction that would not promote that purpose or object. The purpose or object underlying the BCII Act has much more to do with protecting people from suffering harm by way of discrimination than with preventing advocacy of particular forms of the regulation of the terms and conditions of employment of employees in the Building and Construction Industry. There is plenty of scope for the operation of s 45(1) of the BCII Act if "discriminate against" is construed as referring to actions that inflict consequences upon the protected person. It is unnecessary and undesirable to extend the operation of the provision to words that are not capable of producing any consequence. 94 Even if Mr Bell had told Mr Vagg and Mr Bongartz that Bendigo Scaffolding would not be starting unless it had an agreement with the CFMEU and its employees were members of the CFMEU, it is difficult to see how that would amount to discrimination against Bendigo Scaffolding, for the purposes of s 45(1) of the BCII Act. At the times when the alleged conversations between Mr Bell and Mr Vagg took place at the Epsom site, and when the alleged telephone conversation between Mr Bell and Mr Bongartz took place, Bendigo Scaffolding had already withdrawn its quotation. There is no possibility that anything said by Mr Bell at those times would produce adverse consequences for Bendigo Scaffolding. This was not the case at the time of the telephone conversation between Mr Bell and Mr Vagg on the evening of 23 June 2008, but it was always very clear that Becon was not going to accede to any demand of Mr Bell not to employ Bendigo Scaffolding. 95 When I asked senior counsel for Ms Cozadinos how it was suggested that any assertion that Bendigo Scaffolding would not be starting work on the Epsom site would be made good, his response was "union muscle". Union muscle is entirely dependent on a union having sufficient members at a workplace willing to take industrial action to bring about a result desired by the union. On any view of the evidence in the present case, the CFMEU would have been entirely unable to call upon such muscle on the Epsom site. Even if the Bendigo Scaffolding quotation had not been withdrawn, I am of the view that the allegation of discrimination would not have been made out. Mr Bell's evidence of the difficulties he faced in persuading employees to become members of the CFMEU, and of the prevalence on the Epsom site of subcontractors without agreements with the CFMEU, make it clear that there was no possibility of the exercise of "union muscle". The practicality of actual consequences being visited upon Bendigo Scaffolding, as a result of anything said by Mr Bell, are relevant to the question whether the respondents discriminated against Bendigo Scaffolding. Section 70 of the BCII Act does not make irrelevant to discrimination under s 45(1) the reality of practical consequences. 96 For these reasons, no contravention of s 45(1) of the BCII Act is established.

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