42 Mr Pajic said that the conversation between Mr Notarfrancesco and Mr Edwards pertained to the former's refusal to appoint an individual who had been "requested" by the latter. Mr Pajic did not recall the "exact title" of the position to which this individual was to be appointed, but it had "something to do with safety". Mr Notarfrancesco said that he would appoint someone, but Mr Edwards said that he wanted a particular person appointed. Mr Pajic recalled that a name was mentioned in this regard, but he could not recall what it was. Under cross-examination, Mr Pajic accepted that the person whom Mr Edwards wanted appointed would be "something to do with OH&S"; and that the expression "HSR or health and safety rep" was mentioned. It was when the word "rep" was used that Mr Notarfrancesco first mentioned the title "shop steward". It was in response to this that Mr Edwards said, "Well, look, that's a matter for the union who it appoints for shop stewards".
43 In chief, Mr Underdown was not asked for his recollection of the course of the telephone conversation on 14 June 2013 between Mr Edwards and Mr Notarfrancesco. Under cross-examination, however, Mr Underdown agreed with a number of propositions put to him by counsel for the respondents. He agreed that, in the phone call, Mr Edwards asked Mr Notarfrancesco if he had sacked his workers. He agreed that Mr Edwards said that he had found an experienced, qualified, scaffolder who could look after safety on site - someone who would be a good occupational health and safety representative. He agreed that Mr Edwards said, "Well, Bruno, you've sacked your workforce. You're putting yourself out of business"; "You need to be serious about addressing safety issues"; "You need to be serious about complying with occ health and safety laws"; "You need to be serious about keeping proper records". He agreed that Mr Edwards said (and here, as elsewhere in this paragraph, I use the words of cross-examining counsel rather than of Mr Underdown himself) that, in circumstances where Mr Notarfrancesco did not have experienced scaffolders and good occupational health and safety representatives, he was now dealing with a situation where WorkSafe was prosecuting him. When it was put to Mr Underdown that Mr Edwards did not tell Mr Notarfrancesco that he had to employ a shop steward, he responded, "It was more to employ someone to look after us." He agreed with counsel that "it was to look after you in terms of occ health and safety". And he agreed that Mr Edwards also said, in the conversation with Mr Notarfrancesco, that, if the latter did not have someone to look after occupational health and safety, and get people with appropriate qualifications, and if he had WorkSafe prosecuting him, "of course you were going to go out of business".
44 The transcript of Mr Underdown's interview on 29 July 2013 tells a rather different story, however. Unprompted, he told the investigator that, when Mr Edwards and Mr Notarfrancesco were talking on the phone, "they seemed like they ... had their own issues". Mr Edwards "was saying that [Mr Notarfrancesco] had to take on this shop [steward] or Red & Blue gets closed down".
45 In chief, the only useful evidence given by Mr Pal (whose first language, self-evidently, was not English) about Mr Edwards' conversation with Mr Notarfrancesco was that the former said to the latter, "Bruno, you come to the office and meet me and all things are sorted". Mr Pal was not asked about this conversation in cross-examination.
46 In chief, Mr McNamara said that, in his telephone conversation with Mr Notarfrancesco, Mr Edwards said, "Have you looked into any of the issues that we've discussed?" One of the "issues" was (in Mr McNamara's words) "about employing a more experienced scaffolder." Asked whether Mr Edwards said anything about a shop steward, Mr McNamara replied in the negative. He could not recall whether Mr Edwards had said anything about what would happen if Mr Notarfrancesco did not do as he was being requested.
47 Most of Mr McNamara's evidence under cross-examination consisted of him agreeing, with or without some slight qualification, with what was put to him by counsel for the respondents. He agreed that, in the phone conversation between Mr Notarfrancesco and Mr Edwards, the latter asked the former to confirm that he had sacked his workforce. He agreed that Mr Edwards said that that wasn't surprising after all the safety issues that Red & Blue had been having. He agreed that Mr Edwards told Mr Notarfrancesco that he had been trying to help him to bring his safety standards up to a sufficient standard. He agreed that Mr Edwards said that he had tried to help Mr Notarfrancesco by arranging for two of Red & Blue's employees to go on an advanced scaffolder ticket course. On the question whether Mr Edwards said that he had, as previously discussed, managed to find him (Mr Notarfrancesco) someone who was appropriately qualified as an advanced scaffolder, Mr McNamara's evidence was that Mr Edwards said that he had three potential candidates, with "vast experience in advanced scaffolding"; and who would be able to look after safety. He agreed that Mr Edwards said that he had arranged for these people to have an interview with Mr Notarfrancesco. Mr McNamara did not remember whether there was any discussion about the time that such an interview would occur: he was not sure whether the interview occurred "before or after that meeting". Suggesting to Mr McNamara that the interview had occurred before the meeting on 14 June 2013, counsel put it to him that Mr Notarfrancesco said to Mr Edwards, "You're only going to employ him on an ABN". This must have been a mistake on counsel's part, but it prompted a response from the witness that Mr Edwards had said something about an ABN but he (McNamara) was not clear on what it was about. Mr McNamara agreed that, at no stage in the conversation, did Mr Edwards make a demand that Mr Notarfrancesco, or Red & Blue, employ a shop steward, nor that they employ "anyone in particular". But he did suggest that Red & Blue had to employ someone with more experience in advanced scaffolding than current employees. Mr McNamara agreed that Mr Edwards said that, by sacking his workforce, Mr Notarfrancesco would put himself out of business. He agreed that Mr Edwards said that Mr Notarfrancesco's safety problems really had to be sorted out, and that he had to be serious about addressing the safety issues; and also that he had to be serious about complying with the occupational health and safety laws. He agreed that Mr Edwards made an offer to Mr Notarfrancesco that he was able to work with him if he came in to meet him to try and work through how to get to the appropriate safety standards. He agreed that Mr Edwards said something about the fact that, because of its problems with safety standards, Red & Blue was facing WorkSafe investigations and prosecutions.
48 In due course, I shall have to resolve the contested issues of fact arising from the evidence given about the events of 14 June 2013, but at this stage I propose to continue with the narrative.
49 ABD Group ("ABD") was the builder at a site in Maribyrnong called the La Scala site. It hired scaffolding from Red & Blue over the period April-June 2013. The first of Red & Blue's relevant invoices addressed to ABD related to labour, transport and the hire period from 24 April to 21 May. A subsequent invoice took that up to 31 May 2013, and an invoice dated 4 June 2013 was for, amongst other things, the dismantling of some scaffolding. On 12 June 2013, Red & Blue invoiced ABD for labour (presumably involved in installation) and for the first four weeks of the hire of scaffolding for "stretcher stair" and "stair ramp". In each case, the period invoiced ran from 12 June 2013 to 9 July 2013.
50 According to an unsigned work docket raised by Red & Blue, the work to be done on 22 June 2013 at the La Scala site involved the dismantling and relocation of the existing stair access on a ramp, the removal of excess material and transport of scaffolding parts from the site. As events transpired, Red & Blue was not permitted to dismantle its scaffolding on that site, either on 22 June 2013 or at any other time. It was not permitted to enter the site. Some person or persons unknown at some stage dismantled the Red & Blue scaffolding and left it on the nature strip outside the site, from where Red & Blue collected it. That was irregular, to say the least: Mr Notarfrancesco said that it was "a well-known practice within the industry that you don't touch other people's equipment". The space at the foot of the work docket for a signature on behalf of the customer, ABD, to vouch that the work referred to had been carried out was not completed.
51 The two scaffolders from Red & Blue who were to have dismantled the scaffolding at the La Scala site on 22 June 2013 were Mr Pal and Mr McNamara. In his evidence, Mr Pal said that he had previously been involved in erecting the scaffolding. That occurred without incident. On 22 June, he arrived at the site at about 7:00 am. He was met by the union shop steward for the site, Terry Harris, who went by the nickname "Guv". Mr Harris told Mr Pal that he was not allowed on site, because there was a union problem with "Bruno" (Mr Notarfrancesco). Mr Pal did not carry out the work that he was sent to do on this site on that day.
52 In his evidence Mr McNamara said that he arrived at the La Scala site at 7:00 am on 22 June. A short time later, Mr Sanli arrived in the Red & Blue truck. They were scheduled to remove excess scaffolding from the site. They did not do it. Mr McNamara was not "completely sure" why they did not remove the scaffold. He spoke to Mr Harris, who told him that he could not enter the site and (in Mr McNamara's words in his evidence) that he (Harris) was "sorry he couldn't let us in". He said something along the lines that his hands were tied.
53 Under cross-examination, by leave, by counsel for the applicant, Mr McNamara was taken to the transcript of his interview with the investigator on 29 July 2013, to which I have already referred. He accepted the truth of his statement to the investigator that, upon arrival at the La Scala site, he spoke to Mr Harris. He was then referred to the following passage in the transcript:
MR MCNAMARA: And he just asked me had things been resolved between Bruno and Ralph, and I said, "I don't know. I'm unaware of that." And he (indistinct) and he then phoned - I think he phoned Michael, or did he? I think he made a phone call anyway and said but to the best of his knowledge until he's been told otherwise by Ralph or his own supervisor, that we couldn't be granted permission on site and we weren't allowed to remove any of our gear that was not in use from a stair thread that we had built the week previous, the leftover gear was there because it was too busy to crane it up so we said we'd just get that on the truck and get it out of the way and we weren't allowed to do that.
In court, Mr McNamara's evidence was that Mr Harris did make the inquiry referred to in the first sentence of this passage. But he said that the substance of what is set out in the third sentence, or at least so much of it as commences "until he's been told otherwise …", was something that Mr Sanli, who also spoke to Mr Harris, told him. Under persistent cross-examination, Mr McNamara adhered to his evidence that he did not recall Mr Harris telling him why the Red & Blue scaffolders were not allowed on site. When it was put to him that that evidence was inconsistent with what he had told the investigator on 29 July 2013, his response was that that was the reason why he did not sign a copy of the transcript and send it back to the investigator, a rationalisation which I cannot accept, since the transcript was printed from an electronic recording of the interview. Both from the passage set out above and from that reproduced in para 26 above, it is clear that Mr McNamara did tell the investigator that Mr Harris gave him to understand that until he had been told otherwise by Mr Edwards or his own supervisor, Red & Blue was not to be allowed on site on account of some problem involving Mr Edwards and Mr Notarfrancesco.
54 While dealing with what Mr Harris said to Mr McNamara at the La Scala site on 22 June 2013, I refer back to para 22 of these reasons. As there noted, the first three passages in the extract of the transcript of the interview between Mr McNamara and the investigator, set out in that paragraph, are concerned with this subject. If what Mr McNamara told the investigator is to be believed, Mr Harris had said that Mr Edwards had said that every shop steward in Melbourne had been told to put a line through Red & Blue.
55 Mr Edwards said that he had known Mr Harris for many years. Mr Harris regularly attended the union's shop stewards' meetings. Mr Edwards denied that, at a shop stewards' meeting prior to the conversation which he had with Mr Notarfrancesco at about the start of June 2013 (see para 5 above), he instructed shop stewards to put a line through Red & Blue. Other than at shop stewards' meetings, and at health and safety representatives' meetings, Mr Edwards said that he had not had any contact with Mr Harris prior to 22 June 2013. He had also had social conversations with Mr Harris prior to that time, but he did not believe he discussed Red & Blue with him. He found out about the events of 22 June 2013 at the La Scala site only afterwards. When it was put to Mr Edwards, under cross-examination, that "people like Terry Harris [were] told by you not to let Red & Blue on site until issues have been sorted out between Bruno and yourself", Mr Edwards' response was "I didn't speak to Terry Harris".
56 According to Mr Notarfrancesco's evidence, for about three weeks after his telephone discussion with Mr Edwards on 14 June 2013, "my hands were tied at that stage - I couldn't work, I couldn't do anything". On the applicant's case, Red & Blue's experience at the La Scala site was an instance of that. As a result of the position in which he found himself, it was after about those three weeks that he invited Mr Cannon in for an interview. For about the next week or so, according to Mr Notarfrancesco, Mr Edwards "allowed us to go on some of the sites to clear some of the sites because I was employing Robert [Cannon]". This evidence by Mr Notarfrancesco was not tested in detail under cross-examination, since it was the respondents' case - and this aspect was tested - that the interview had already occurred about six weeks previously.
57 Ms Sharpe, the applicant's investigator who conducted the interviews on 29 July 2013, was contacted by Mr Notarfrancesco on 9 July 2013 and told that he had arranged an interview with Mr Cannon for 15 July 2013. Ms Sharpe spoke to Mr Notarfrancesco again on 16 July 2013, when he told her that he had interviewed Mr Cannon the day before. Although there were some formal objections to Ms Sharpe's evidence, she was not challenged on the accuracy of her recollections in relevant respects. She was an impressive witness in this as in other respects, and I accept her evidence. Mr Notarfrancesco's recollection of the general flow of events after 14 June 2013 was consistent with it. The respondents produced nothing objective from which to support their contention that the interview took place in early June. I find that it occurred on 15 July 2013.
58 It is common ground that the interview did not go well. At base was a difference in expectations as between Mr Cannon and Mr Notarfrancesco. Mr Cannon had assumed that, if he were given a job, he would be paid the rate prescribed in the enterprise agreement for all work. Mr Notarfrancesco's position was that that rate would be paid when Mr Cannon was working on commercial jobs, but, because Red & Blue's work was not confined to commercial jobs, a lesser rate would be paid when Mr Cannon was working, for example, on residential jobs. As I interpret what Mr Notarfrancesco was here proposing, he would engage Mr Cannon as a contractor, under an ABN, on jobs of the latter kind. Unsurprisingly, Mr Cannon did not react well to that distinction, and the interview ended rather abruptly.
59 ABD was also the builder at a site in Yarra Street, South Yarra. Red & Blue had provided scaffolding at that site over the period August-November 2012; and again in June and the first week of July 2013. The most recent invoice for the hire of scaffolding ran from 1 to 3 July 2013. The notation "off hire 10/7/13" appears in hand on that invoice, from which I infer that Red & Blue's scaffolding, which had been on site since 3 June, was not removed on 3 July as intended but remained there until 10 July. Although not the subject of specific evidence, I note that this is consistent with Mr Notarfrancesco's evidence that, once he had agreed to interview Mr Cannon, Red & Blue was permitted to remove some of its scaffolding from some sites (accepting, as I do, Ms Sharpe's evidence that it was on about 9 July that Mr Notarfrancesco did agree to interview Mr Cannon).
60 On 16 July 2013, Red & Blue forwarded to ABD a draft contract for execution for a further period of scaffolding hire at the Yarra Street site. The hire period was for a minimum of four weeks. This draft was forwarded to Red & Blue at 3:27 pm on 16 July, under cover of an email which stated, "Truck is loaded and ready". From the history of dealings between ABD and Red & Blue, and from the fact that Red & Blue did in fact attend at the site on 17 July with its scaffolding, the inference that ABD accepted the terms of this draft is easily drawn, and I do so.
61 At or just before 7:00 am on 17 July 2013, four of Red & Blue's scaffolders arrived at the Yarra Street site: Messrs Pal (who drove the truck), Underdown, McNamara and Nunn. Of them, the first three gave evidence. Mr Pal said that, when he arrived at the site, there was a "union man" called Con who said, "Guys, I can't help you; you're now [sic - not] allowed." He did not say why the Red & Blue scaffolders were not allowed. It is common ground that "Con" was Con Giannakos, the union's shop steward at the Yarra Street site.
62 In chief, Mr Underdown said that he arrived at the Yarra Street site after the Red & Blue truck, and was told by Mr Pal that the shop steward on the site, who was unknown to Mr Underdown, had told him (Pal) that they were not to enter the site. Mr Underdown said that he and the other scaffolders were told to wait on the other side of the street for their boss to arrive. Under cross-examination, by leave, Mr Underdown was shown the transcript of his interview with the investigator on 29 July 2013, and agreed that he must have said what he was there recorded as saying. In response to an open question, he had told the investigator that the shop steward's name was Con. He said that he was with the other scaffolders when Con told them that they were not allowed on site. He (Con) did not say why. I accept the evidence of what Mr Underdown told the investigator in preference to his acceptance of the proposition pressed upon him in cross-examination by counsel for the respondents that Mr Giannakos did not speak directly to Mr Underdown and the other scaffolders. But I also accept Mr Underdown's evidence that Mr Giannakos did not tell them, at least in his own hearing, why they were not allowed on site. There is a passage in the transcript of the interview with the investigator in which Mr Underdown is recorded as having stated the reason that was given by Mr Giannakos for the scaffolders not being allowed on site, but it is unclear whether Mr Giannakos said that directly to Mr Underdown or it was information that came to the latter by another route (a viable possibility, given that a representative of Red & Blue, Michael Notarfrancesco, attended the site that morning, discussed matters with site management and then had a discussion with Red & Blue's scaffolders).
63 Mr McNamara arrived at the Yarra Street site independently, after the truck and the other three scaffolders had arrived. They informed him that they were not unloading the truck. They did not say why. Under cross-examination, by leave, Mr McNamara maintained that Mr Giannakos had not told him, or told a group of which he was a part, the reason why the scaffolders were not to enter the site. However, the transcript of the interview which Mr McNamara had with the investigator on 29 July 2013 records the following exchange:
MS SHARPE: Okay. Can you tell me what happened then?
MR MCNAMARA: Pretty much the same thing. We turned up at it, our truck fully loaded with scaffold, ready to do what we'd been asked and Con I believe is the shop steward there, he was the same. He said until Ralph Edwards tells him otherwise, we're not to be allowed on site.
And the following interchange:
MS SHARPE: Did you talk to anyone else at the site that day about any issues with the unions or Ralph or CFMEU or - - -?
MR MCNAMARA: No.
MS SHARPE: No? Was there any - no, I think - - -
MR MCNAMARA: Con just explained to us again the same thing, until he gets further information on to the issues between Bruno and Ralph, that he can't let us on site. He was very apologetic about it. He didn't want to do it, but he said he had to.
In these passages, when Mr McNamara said "the same" and "the same thing", he was, of course, comparing what Mr Giannakos said with what Mr Harris had said on the La Scala site.
64 In responding to the questions of counsel for the applicant about the passages set out above, Mr McNamara was not convincing, his evidence varying from an adherence to his earlier position that he had not heard directly from Mr Giannakos what the reason was for Red & Blue not being allowed on the site to a professed inability to recall the conversations which he recounted to the investigator. Under cross-examination by counsel for the respondents, Mr McNamara readily agreed that he did not engage in conversations with anyone, be it ABD managers or Mr Giannakos, about why Red & Blue was not permitted on site, since that was more properly the function of Red & Blue management. I must say that I found that concession by Mr McNamara quite unhelpful.
65 Once it was apparent to the Red & Blue scaffolders that they would not be allowed on the Yarra Street site, one of them telephoned a member of Red & Blue's staff, Michael Notarfrancesco, who promptly went to the site, arriving at about 8:00 am. He asked the scaffolders if they knew why they were not allowed on site, and was told that they did not. So Mr Notarfrancesco went to see Mr Giannakos. He told him (as Mr Notarfrancesco put it in his evidence) "that there was [sic] a few issues Red & Blue had with the union office and he suggested that I get Bruno and get him to speak to Ralph, so they could sort their issues out." Mr Giannakos added, "Get him and put him in a car and take him to the office." He (Giannakos) said that his instructions came from his "superiors".
66 Mr Edwards gave evidence that he knew Mr Giannakos, and that he knew he was the union delegate on the Yarra Street site. In chief, he said that, prior to 17 July 2013, he had not had any "personal or private discussions" with Mr Giannakos. He said that, other than at a delegates' meeting, he did not see Mr Giannakos "socially". He said that, prior to 17 July 2013, he had not had any discussions with Mr Giannakos about Red & Blue. Under cross-examination, Mr Edwards denied that he had instructed all the union's shop stewards, including Mr Giannakos, not to allow Red & Blue on to their various sites, including the Yarra Street site.
67 Red & Blue did not do any scaffolding work on the Yarra Street site on 17 July 2013 or subsequently. It has not been engaged by ABD at any time, on any commercial site, since.
ADMISSIBILITY OF EVIDENCE OF STATEMENTS MADE BY SHOP STEWARDS
68 In my reasons to date, I have set out the substance, and in some instances the detail, of the evidence that was given at trial. However, the evidence of what was said by Mr Harris and Mr Giannakos on 22 June and 17 July 2013 was received subject to the respondents' objection. It is now necessary to resolve that objection.
69 Counsel for the respondents submitted that everything said by Mr Harris and Mr Giannakos on their respective sites to scaffolders employed by Red & Blue, and in one instance to Michael Notarfrancesco, was inadmissible as hearsay. Expressed in those terms, the objection was, in my view, too sweeping. Under the hearsay rule, evidence of a previous representation by a person is not admissible to prove the existence of a fact that, it can reasonably be supposed, was intended to be asserted by that person: Evidence Act, s 59(1). Thus it was not hearsay for the Red & Blue scaffolders to give evidence that, at the La Scala and Yarra Street sites, it was Mr Harris and Mr Giannakos, respectively, who told them not to enter the sites.
70 But, to the extent that Mr Harris and Mr Giannakos said, or implied, that their instructions had come from Mr Edwards, or that it was Mr Edwards with whom Red & Blue had a problem (and evidence to like effect), the evidence was hearsay. It was at this point that counsel for the applicant submitted that the evidence fell within the exception to the hearsay rule for which s 81(1) of the Evidence Act provides, admissions. If made with the authority of one or both of the respondents, it seems clear that the things said by Mr Harris and Mr Giannakos were "admissions": see the definition of that term in the Dictionary in the Evidence Act.
71 With respect to the matter of authority, the applicant relies on ss 87 and 88 of the Evidence Act, which provide:
87 Admissions made with authority
(1) For the purpose of determining whether a previous representation made by a person is also taken to be an admission by a party, the court is to admit the representation if it is reasonably open to find that:
(a) when the representation was made, the person had authority to make statements on behalf of the party in relation to the matter with respect to which the representation was made; or
(b) when the representation was made, the person was an employee of the party, or had authority otherwise to act for the party, and the representation related to a matter within the scope of the person's employment or authority; or
(c) the representation was made by the person in furtherance of a common purpose (whether lawful or not) that the person had with the party or one or more persons including the party.
(2) For the purposes of this section, the hearsay rule does not apply to a previous representation made by a person that tends to prove:
(a) that the person had authority to make statements on behalf of another person in relation to a matter; or
(b) that the person was an employee of another person or had authority otherwise to act for another person; or
(c) the scope of the person's employment or authority.
88 Proof of admissions
For the purpose of determining whether evidence of an admission is admissible, the court is to find that a particular person made the admission if it is reasonably open to find that he or she made the admission.
72 It is established on the pleadings that each of Mr Harris and Mr Giannakos was, at the relevant time, a shop steward representing the interests of the union and its members on the site concerned. That circumstance does not travel the distance required by the applicant under s 87, since it does not establish any of the matters arising under paras (a), (b) or (c) of subs (1). Neither does it address the position of Mr Edwards. But it provides context, as does the respondents' admission that each of Mr Harris and Mr Giannakos was an "officer" of the union as defined in s 12 of the FW Act.
73 Other circumstances which provide context for the application of s 87(1) are the following. First, it was Mr Harris and Mr Giannakos who informed the Red & Blue scaffolders that they were not to enter the sites concerned. Secondly, there is nothing in the evidence to suggest that there was, on either of those sites, a site-specific problem which would have prevented Red & Blue from carrying out its contracted work there. The inference that the reason for Mr Harris and Mr Giannakos acting as they did was a broader issue or concern is, in my view, a natural one. Thirdly, Mr Edwards regularly held shop stewards' meetings, which implied a degree of coordination. The prospect that individual shop stewards were, in effect, randomly giving effect to their own idiosyncratic agendas as to who should, and should not, be allowed onto their sites is a most unlikely one. Fourthly, on 14 June 2013, Mr Edwards had informed the four Red & Blue scaffolders who saw him at the union's office that every shop steward had been told that Red & Blue was not to be allowed on sites. Fifthly, the timing of the actions of Mr Harris and Mr Giannakos on 22 June and 17 July was strongly consistent with what had, in each case, been a then recent event, in one case involving Mr Edwards himself and in the other case involving his nominee Mr Cannon, which proved a motive for Mr Edwards to take action against Red & Blue. And sixthly, neither Mr Harris nor Mr Giannakos was called by the respondents. I am bound to assume that nothing which either might have said about the source of his authority to exclude Red & Blue from the site in question would have assisted the respondents.
74 I take that view that it is reasonably open to find that, on 22 June and 17 July 2013, Mr Harris and Mr Giannakos, respectively, had authority, on behalf of Mr Edwards and the union, to say everything which they are recorded as having said in the evidence in this case. Indeed, I make a finding to that effect. Not only did they have that authority, but it is the natural inference that Mr Edwards and the union intended that they should make it clear to the Red & Blue scaffolders that it was Mr Notarfrancesco's unresolved problem with Mr Edwards that was the reason for Red & Blue not being allowed on those sites.
75 Additionally, I take the view that it is reasonably open to find that, on those days, the statements made by Mr Harris and Mr Giannakos were made in furtherance of a common purpose that they had with each of Mr Edwards and the union. I also make a finding to that effect. It is true that, interpreted in one way, those statements bespoke a certain reluctance on the part of the makers to give effect to the instructions which they clearly had from Mr Edwards. But the fact that they did give effect to the instructions, perhaps in preference to their own instincts, makes it clear where their priorities lay. However reluctantly, they associated themselves with, and acted conformably with, the respondents' purpose.
76 To decide the present case, therefore, I admit into evidence, and take into account, everything said by Mr Harris and Mr Giannakos on 22 June and 17 July 2013 respectively.
RESOLUTION OF FACTUAL DISPUTES
77 I turn next to the resolution of the factual disputes presented by the evidence referred to above, commencing with the telephone conversation between Mr Notarfrancesco and Mr Edwards in early June 2013.
78 A starting point is that it was Mr Edwards who contacted Mr Notarfrancesco. On any view, his project was to find employment for Mr Cannon after he finished his existing job at Altona. Mr Edwards' version of what he said to Mr Notarfrancesco - see para 11 above - was, I would have to say, an unlikely one. If he had genuinely been trying to convince Mr Notarfrancesco that Mr Cannon (although not mentioned by name) was a good scaffolder who should be employed, I doubt that he would have told him that he (Notarfrancesco) did not have "the best reputation in town", or that he was trying to help him improve his "gene pool". This kind of language was, I would find, introduced by Mr Edwards into his evidence because it lined up with the kind of case that the respondents were running in court.
79 If Mr Notarfrancesco had told Mr Edwards that he was not interested in taking on another scaffolder, which Mr Edwards related in his evidence, it is, in my view, unlikely that Mr Edwards would have told Mr Notarfrancesco that he would get the person he had in mind to ring him. For there to have been any point in Mr Cannon ringing Mr Notarfrancesco, the latter must at least first have agreed to give him an interview. Further, the objective evidence points strongly to Mr Notarfrancesco having interviewed Mr Cannon on 15 July 2013 (see para 57 above), rather than at any time proximate to this telephone conversation in early June. For this reason, and for the reasons set out in para 12 above, I reject Mr Cannon's evidence that the interview took place in early June; and I likewise reject Mr Edwards' evidence that he told Mr Notarfrancesco that he would have the scaffolder in question ring him for an interview.
80 I had the clear impression that Mr Notarfrancesco was telling the truth about his conversation with Mr Edwards as he recalled it. Although it would be unrealistic to expect anyone to retain a precise recollection of the course of a conversation held nearly two years previously without notes, in his evidence Mr Notarfrancesco was clear as to the essence of the message that was conveyed by Mr Edwards. For Mr Edwards to have told him that the scaffolder he had in mind was to finish the job on which he was then working in four weeks, as Mr Notarfrancesco recalls, would have been consistent with facts which the court knows to be more or less uncontroversial. Under cross-examination, Mr Notarfrancesco's denials of the proposition put to him by counsel for the respondents that Mr Edwards did not tell him that he had to employ the scaffolder as a shop steward were consistent and convincing. I had the impression that Mr Notarfrancesco clearly recalled Mr Edwards telling him that he was to employ this person as a shop steward, and I accept his evidence in that regard.
81 As I have noted earlier in these reasons, the evidence as to Red & Blue's experience on building sites in the period between this telephone conversation and 13 June 2013 is not entirely satisfactory. But it is clear, and I would find, that, on that day, four scaffolders were laid off by Red & Blue and were given to believe that the union was responsible. At about the same time, Mr Notarfrancesco contacted his solicitor and, on the following day, he rang the Fair Work Hotline. These are not the actions of a man whose scaffolders had been excluded from a building site on account of safety concerns, as the respondents would have the court believe.
82 Turning then to the events of 14 June 2013, I commence by noting that Messrs Underdown, McNamara and Pal were workers in the building and construction industry who had been called by the regulator to give evidence against their own union. To a greater or lesser extent, this introduced, in my observation, a certain tension into the environment in which they gave their evidence-in-chief. By contrast, Mr McNamara in particular, and Mr Underdown to some degree, appeared to be uncommonly ready to accede to propositions put to them under cross-examination. It was not submitted on behalf of the applicant that there was anything untoward going on in this respect, but the overall dynamics of the presentation of the evidence of these men is something which has unavoidably influenced the impressions I gathered of the reliability of their evidence.
83 For this reason, additionally to the circumstance that it was not seriously challenged by counsel for the respondents, I place considerable store by Mr Underdown's evidence-in-chief that Mr Edwards told the scaffolders, at their meeting with him on 14 June 2013, that he was trying to organise a shop steward to look after them. I also accept his evidence, prompted by reference to the transcript of his interview with the applicant's investigator on 29 July 2013, that Mr Edwards told the scaffolders that, if Mr Notarfrancesco did not take on a shop steward, they would not be allowed on commercial sites. Although not of great significance in itself, Mr Pal's evidence that Mr Edwards had told the scaffolders that he had a problem with Mr Notarfrancesco was consistent with the applicant's case as to the position being taken by Mr Edwards at the time.
84 I had the distinct impression that Mr McNamara had set his mind on giving counsel for the applicant as little assistance as he could, and that he moulded his answers accordingly. Much more reliable, in my view, was the transcript of his interview with the investigator on 29 July 2013, to which I have referred at paras 21-22 above. That transcript speaks for itself, and I need add nothing to it here.
85 I find that, when he met the scaffolders on 14 June 2013, Mr Edwards told them, in substance, that he had been trying to get Red & Blue to employ a shop steward, and that he had conveyed the instruction to the union's network of shop stewards on commercial sites that, until that requirement was complied with, Red & Blue were not to be allowed on to sites of that character. In this area of the case, I reject Mr Edwards' denials.
86 Consistent with that finding is the evidence of what Mr McNamara told the investigator about Mr Edwards' words to the scaffolders as he was about to put his call through to Mr Notarfrancesco, as set out in para 26 above. That there were "parameters" within which Mr Notarfrancesco was required to work "in order to be reinstated with the union" is, I would have to say, chillingly consistent with the applicant's case. Indeed, according to what Mr McNamara told the investigator, to make that clear to Mr Notarfrancesco was the purpose of the call which Mr Edwards was about to make: "… I'll ring him now and confirm that for you …." Mr Edwards would not have been impressed by Red & Blue's tactic, as he would have seen it, of sending four union members to the union office to complain about their state of unemployment. He wanted to demonstrate to them that he was not the one "dickin' [them] about". I reject Mr Edwards' denial of having said these things.
87 Turning to the telephone conversation between Mr Edwards and Mr Notarfrancesco which followed, there is one circumstance which stands front and centre in the court's consideration of the various versions of that conversation which were given by the witnesses. Mr Caruana could hear both sides of the conversation, and he made a note of it as the conversation proceeded. He was independent of both the union and Red & Blue, and knew, at that stage, little of the background to the controversy between them. He was employed in a professional capacity, and it was not suggested to him that his notes were slanted, or adjusted, to present a distorted record of the conversation. Of course, they were not a complete record, and were nothing like a verbatim record, but, so far as they go, I have no hesitation in accepting their accuracy.
88 Mr Heyman's notes were not taken during the course of the conversation, but they provide a useful, and apparently reliable, confirmation of the flow of the conversation as recorded by Mr Caruana.
89 As reported in Mr Caruana's notes, Mr Edwards' opening comments were, I would find, a reference to what he had discussed with Mr Notarfrancesco in their telephone conversation in early June. As it seemed to Mr Edwards, the penny had not dropped with Mr Notarfrancesco. It was in this sense that Mr Notarfrancesco was "not very smart". As a result, Mr Edwards had to make it clear: "I'm telling you what I want you to do." It was in this context, as Mr Caruana accepted under cross-examination, that Mr Edwards referred to the importance of workplace safety, his requirement being to "put a bloke on". On any view, putting a bloke on was what Mr Edwards wanted Mr Notarfrancesco to do. The next comment - "If you can't oblige with me, then hard luck" - implied the prospect of some prejudicial consequences if Mr Notarfrancesco did not comply. Mr Edwards then, for the first time it seems, referred to Mr Notarfrancesco's situation as a "problem" which could be solved by him hiring a shop steward to look after his employees.
90 Mr Edwards' next comment, about the need for Mr Notarfrancesco to have a working relationship with him, raised an essential precondition of Red & Blue being "in business". The message for Mr Notarfrancesco, self-evidently, was that Mr Edwards had it within his power to put Red & Blue out of business. Mr Edwards' insistence that it was the union which chose, or approved, a shop steward was consistent with the applicant's case that Mr Edwards was demanding not that the employees of Red & Blue choose a shop steward for themselves, but that Red & Blue take into its employ a scaffolder of the union's nomination who would thenceforth be the shop steward for those employees. I reject Mr Edwards' evidence, and the respondents' case, that it was Mr Notarfrancesco who first mentioned a shop steward in this conversation, and that Mr Edwards' only comment on the subject was that the identity of a shop steward was not Red & Blue's concern because it was dealt with under the union rules. Rather, Mr Edwards' reference to the choice of a shop steward under the union rules was in response to Mr Notarfrancesco's complaint that his employees had already voted on who the shop steward would be. The sense of Mr Edwards' response to that complaint was that it was "we" - ie the full-time union officers - not the employees, who decided who would be the shop steward in a particular case, and they did so pursuant to the union rules.
91 Having observed that Red & Blue had sacked its employees, Mr Edwards' next comment - "Well done, you're out of business" - was, of course, a heavily ironical one, and would reasonably have been understood as menacing. It was at this point that Mr Notarfrancesco asked Mr Edwards who it was that he wanted him to hire. The person in question was identified as Robert Connolly. As noted above, this must have been the name used by Mr Edwards, albeit that he had Mr Cannon in mind.
92 There were, of course, elements in the conversation between Mr Edwards and Mr Notarfrancesco other than those which I have emphasised above. As Mr Caruana's notes suggest, there was an exchange about the difference between engagement under an ABN and employment under the relevant enterprise agreement. Further, as Mr Heyman's notes suggest, Mr Edwards referred to some conditions of employment which did not, obviously, have his approval, in which respect I infer that his comments were based on what he had been told by one or more of the scaffolders who had come to the union office that day. Neither of these areas of discourse is directly relevant to the present inquiry.
93 Mr Heyman's notes suggest that, at the end of the conversation, Mr Edwards told Mr Notarfrancesco that he wanted to meet him the following week (14 June being a Friday). There is other evidence to the same effect. Mr Edwards' request to meet is significant in this way. Mr Notarfrancesco did not meet with Mr Edwards during the course of the following week. It was on the very next day - Saturday 22 June 2013 - that Red & Blue was prevented from entering the La Scala site. The timing of that event was, it must be said, consistent with the applicant's case that it was Mr Notarfrancesco's refusal to accede to Mr Edwards' demand to employ someone as a shop steward that led to the action against Red & Blue of which the respondents are accused.
94 Not having the benefit of notes which they took at the time, it is understandable that Mr Notarfrancesco and Mr Edwards would not recall this conversation in anything like the ordered sequence that may be observed from Mr Caruana's notes. They would tend to recall significant features of it, which were important to them. Here it must be remembered that it was Mr Edwards who made the call, and it was Mr Notarfrancesco, correspondingly, who was, for the most part, the listener. Obviously the comment about Red & Blue no longer being in business, however it was expressed, had an impact on Mr Notarfrancesco. The other major item in Mr Notarfrancesco's recollection was that Mr Edwards wanted him to employ this person called Robert Connolly as a shop steward. From the way he gave this evidence, Mr Notarfrancesco's clear recall of these major elements in the conversation was palpable. Aside from the matter of sequence, there was nothing in Mr Notarfrancesco's evidence in relevant respects which was inconsistent with Mr Caruana's notes.
95 By contrast, while there is some limited consistency between those notes and Mr Edwards' evidence, the latter generally bore little or no relationship with the former. Much of Mr Edwards' evidence in relevant respects was, I would have to say, a tendentious reinterpretation of the conversation. For example, if Mr Notarfrancesco had in fact had a "whinge" about safety requirements, about the absence of a level playing field, about being constantly questioned about his work practices, and about being prosecuted by WorkSafe, it is most unlikely that Mr Caruana would have made no reference to it in his notes; and, I would add, he was not cross-examined about the absence of any such reference from those notes. Likewise, Mr Edwards' evidence that he told Mr Notarfrancesco that he was "not talking … about shop stewards" was so strikingly inconsistent with Mr Caruana's notes that I cannot, realistically, take it seriously.
96 Overall, despite its fulsomeness and lengthy elaborations, I do not accept Mr Edwards' evidence of his conversation with Mr Notarfrancesco on 14 June 2013, save to the limited extent that it lined up with Mr Caruana's notes.
97 With respect to the other witnesses, I would have to say that I found the evidence of Mr Pajic of little assistance. It struck me that his recollection of the conversation had nothing like the focus, at the level of detail, that would make his evidence useful in making distinctions of the kind that presently confront the court.
98 As mentioned above, the only evidence given directly by Mr Underdown in relation to this telephone conversation was given in cross-examination. Although it was cross-examination, and counsel was entitled to lead, that practice was employed to such an extent that I was left without any real sense of how the witness recalled the flow, and content, of the conversation. Not having given any relevant evidence-in-chief, Mr Underdown was not being cross-examined with a view to undermine what he had already said. It would, with respect, have been more helpful to the court if, once the subject was broached in cross-examination, the witness had been asked to recount what he recalled of the conversation. In the way it was done, however, the process had the appearance of Mr Underdown acceding to a series of propositions that came from counsel's instructions. Counsel was, of course, entitled to proceed in this way, and I express no criticism of him. But I was little assisted by this evidence in my understanding of how the conversation proceeded. As implied in para 44 above, I found much more revealing Mr Underdown's unprompted statement to the investigator on 29 July 2013 that, in the conversation which was then only about six weeks previous, Mr Edwards had told Mr Notarfrancesco that he had to take on a shop steward or Red & Blue would be closed down.
99 What I have said above about the course of Mr Underdown's cross-examination applies more so in the case of Mr McNamara's cross-examination by counsel for the respondents. I am unable to place any weight on that evidence, given in the way that it was. Mr McNamara's readiness to agree with propositions of some detail put to him by counsel stands in stark contrast to his professed inability to recall a number of the events of June and July 2013. When cross-examined by counsel for the applicant, for example, about what he had told the investigator on 29 July 2013, he said that he did not remember much of the interview. When it was put to him that his recollection, on that date, of the events at the La Scala site on 22 June 2013 would have been better than it was when he gave evidence (11 March 2015), his response was, "Probably just equally as bad. I don't have a very good memory for things like this." In the circumstances, I do not accept Mr McNamara's evidence, given in chief, that, in the conversation with Mr Notarfrancesco on 14 June 2013, Mr Edwards did not say anything about a shop steward.
100 For the reasons I have given, I find that, on 14 June 2013, Mr Edwards telephoned Mr Notarfrancesco in response to four scaffolders, then recently laid off by Red & Blue, complaining to him about that circumstance. In the conversation that followed, Mr Edwards referred to something that he had previously required Mr Notarfrancesco to do. He reiterated that that thing was the employment of a particular person, whom he identified as Robert Connolly (but he had Mr Cannon in mind), as a shop steward. He said that, if Mr Notarfrancesco wanted to be in business, he needed to have a working relationship with him (Edwards), which comment was intended to convey, and would reasonably have been understood as conveying, that the alternative to the employment of this person as a shop steward was to go out of business.
101 From there I turn to the events on the two sites which have been the subject of evidence in the applicant's case. As a preliminary, I should say something about the nature of Red & Blue's business, and the consequences of that for the kind of industrial pressure which, I would find, was placed upon that business by the respondents. A large part of Red & Blue's income, I infer, came from the hire of scaffolding which had previously been installed. Without causing substantial grief to parties whom the respondents would regard as innocent, there would have been nothing that they could have done in relation to the use of such scaffolding, or to the builder's regular making of hire payments to Red & Blue. What the respondents needed, I infer, was an occasion when workers from Red & Blue were actually required to enter a building site for some such purpose as the delivery, erection, alteration or dismantling of scaffolding.
102 Such an occasion arose at the La Scala site on 22 June 2013. It should first be said that any suggestion that Red & Blue was in trouble, either with ABD or with WorkSafe, on account of the safety standards to which it adhered on that site cannot be taken seriously. ABD was a long-standing customer of Red & Blue. The scaffolding in question was already in place. There is no evidence of any improvement notice addressed to Red & Blue in relation to this site, notwithstanding the respondents' ability to produce such a notice in relation to another site. The shop steward for the site, Mr Harris, was not called. From all that appears, the attendance of the scaffolders employed by Red & Blue at the La Scala site was absolutely conventional in all respects, and would not have been inhibited by any legitimate circumstance which appears in the evidence.
103 It was Mr Harris who told Mr Pal that he was not allowed on site. He said that it was because of a union problem with Mr Notarfrancesco. As related by Mr McNamara to the investigator on 29 July 2013, Mr Harris told him that Mr Edwards had said that that every shop steward in Melbourne had been told to put a line through Red & Blue. He said that, until he was told otherwise by Mr Edwards or his own supervisor, the scaffolders from Red & Blue did not have permission to enter the site. Mr Harris' intervention in the matter of Red & Blue's access to the site was something which required explanation by the respondents. Save to provide denials, Mr Edwards effectively gave no evidence about the events concerned. That was not, in my view, a satisfactory place to leave the matter. The applicant presented a strong inferential case which required a better response from Mr Edwards. The facts are these. First, Mr Edwards was the full-time official of the union responsible for the scaffolding sector. Secondly, Mr Edwards ran what I would describe as a tight ship in the area of his organising responsibilities: he chaired regular meetings, at the union office, of members employed in the sector and regular meetings of shop stewards. His was not a hands-off approach. Thirdly, he had a specific interest in Red & Blue, and in the employment of Mr Cannon in particular. Included in that, of course, was the threat which I have found he made on 14 June 2013 (only eight days previously). Fourthly, the evidence is conspicuously devoid of any reason why Mr Harris would have taken it upon himself to exclude Red & Blue from the site. Indeed, fifthly, Mr Harris appeared to be apologetic for the way he treated the Red & Blue scaffolders, going to the extent of saying that his hands were tied. Sixthly, in conversation with Mr McNamara, Mr Harris referred to something that was unresolved as between Mr Notarfrancesco and Mr Edwards, and to the fact that he could not allow the scaffolders on to the site without approval from his supervisor or Mr Edwards. And seventhly, as I have stressed above, Mr Harris was not called.
104 Mr Edwards may well have known nothing of the details of the happenings on the La Scala site, but the proven actions of Mr Harris, the union's own shop steward on the site, and the consistency of those actions with what I have found to be Mr Edwards' stated intentions apropos Red & Blue, required a response of more substance from him. It is as though the court is being asked to accept that the president of the branch, and the man with organising responsibility for the scaffolding sector, carries no responsibility for a group of union members in that sector being denied access to a building site by one of the union's own representatives. There was no suggestion that, when he found out about Mr Harris's actions, Mr Edwards investigated the matter to find out why he had acted in that way. Whether or not Mr Edwards had instructed Mr Harris directly, and whether or not he knew, specifically, of the events of 22 June 2013, the only realistic interpretation of those events, including the statements made by Mr Harris - referring to Mr Edwards as they did - is that Mr Edwards intended that Red & Blue should not be permitted to enter the La Scala site. The inference that, in preventing Red & Blue from entering the site on that day, Mr Harris was acting on the instructions of Mr Edwards is a compelling one, and I draw it in the absence of evidence from Mr Harris or of any other benign explanation from the respondents.
105 From there, the narrative takes one next to Mr Notarfrancesco's agreement to interview Mr Cannon. Consistently with Mr Notarfrancesco's evidence that, from that point, the union permitted Red & Blue some access to sites on which its scaffolding stood, there is no suggestion that Red & Blue was inhibited in removing the scaffolding which it had at the Yarra Street site in the period leading to 10 July 2013. As noted above, Red & Blue contracted with ABD for the delivery and erection of further scaffolding, to be done on 17 July 2013. The making of that contract is inconsistent with ABD having had any safety or other legitimate concerns about Red & Blue's work.
106 It was not any representative of ABD who prevented the Red & Blue scaffolders from entering the Yarra Street site on 17 July 2013. It was Mr Giannakos, the union's shop steward. Going by the statements made by Mr McNamara to the investigator on 29 July 2013 - which, for reasons already explained, I prefer to his denials given in court - Mr Giannakos told him that, until Mr Edwards advised him otherwise, the Red & Blue scaffolders were not to be allowed to enter the site (or, as Mr McNamara put it elsewhere in those statements, he could not let them on to the site until he had further information about the issues between Mr Notarfrancesco and Mr Edwards). Mr Giannakos' later comments to Michael Notarfrancesco were consistent with what he had said to Mr McNamara: he referred to issues which Red & Blue had with the union office, and suggested that Bruno Notarfrancesco should go immediately to speak with Mr Edwards.
107 As with Mr Harris at the La Scala site, the evidence about the events of 17 July 2013 at the Yarra Street site required explanation by Mr Giannakos. The reasoning set out in para 103 above applies equally to the actions of Mr Giannakos on this site. Additionally, Mr Giannakos' action was taken only two days after the acrimonious conclusion to the interview between Mr Notarfrancesco and Mr Cannon. The evidence is conspicuously devoid of any reason why Mr Giannakos would have taken it upon himself to exclude Red & Blue from the site. Indeed, in saying to Mr Pal, "guys, I can't help you", Mr Giannakos was absolving himself from responsibility for what he was doing; and, in Mr McNamara's words to the investigator, Mr Giannakos was "very apologetic" about that. In conversation with Mr McNamara, Mr Giannakos said that he could not allow the scaffolders to enter the site until he had heard from Mr Edwards; and he referred to issues existing as between Mr Edwards and Mr Notarfrancesco, pending further information about which he could not allow the scaffolders on site. In the absence of evidence from Mr Giannakos, the inference that, in preventing Red & Blue from entering the site, he was acting on the instructions of Mr Edwards is a strong one, and I draw it.
THE APPLICANT'S CASE AGAINST MR EDWARDS
108 That brings me to the statutory bases of the applicant's claims, commencing with those made against Mr Edwards. With respect to the telephone conversation between him and Mr Notarfrancesco on 14 June 2013, the applicant relies on s 355(a) of the FW Act, which provides:
A person must not organise or take, or threaten to organise or take, any action against another person with intent to coerce the other person, or a third person, to:
(a) employ, or not employ, a particular person; …
The applicant contends that Mr Edwards threatened to organise or to take action against Red & Blue with intent to coerce it to employ Mr Cannon. Despite the Cannon/Connolly confusion to which I have referred, it was not submitted on behalf of the respondents that, if otherwise I should find that this provision had been contravened, the person whom Mr Edwards wanted Red & Blue to employ was not a "particular person" within the meaning of it.
109 On the findings which I have made above, there was a threat made by Mr Edwards on 14 June 2013. It was a threat to put Red & Blue out of business. It is true that it was not put in so many words by Mr Edwards, but what he said to Mr Notarfrancesco was reasonably to be so understood. As Isaacs J said in an analogous context in Australian Commonwealth Shipping Board v Federated Seamen's Union of Australasia (1925) 35 CLR 462 at 476, "[i]rregular acts are not likely to be regularly authorized or encouraged." At least as much, in my view, can be said about threats.
110 It also follows from the findings above that Mr Edwards' intent, in making the threat, was to move Red & Blue to employ Mr Cannon. That inference is readily available on the evidence. Likewise, it is to be inferred, first, that Mr Edwards intended that the action which he threatened to take would negate Red & Blue's choice in the matter of the employment of Mr Cannon, and secondly, that that action, if taken, would have been unlawful, illegitimate or unconscionable: see Seven Network (Operations) Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (2001) 109 FCR 378, 388 [43]. Given the nature of the threat, no other conclusion is reasonably open.
111 In making findings as to Mr Edwards' intent on 14 June 2013, I have placed no reliance on s 361 of the FW Act. In the submissions made on behalf of the applicant, it was treated as self-evident that s 361 applied to so much of s 355 as dealt with the matter of intent. Although counsel for the respondents said nothing on the subject, I regard the position as unclear at best. Section 355 makes a distinction between organising and taking action, on the one hand, and threatening to do so, on the other hand. Section 361 applies only to the mental element involved in taking action. In terms, it does not apply to a threat to take action. Historically, the prohibitions now to be found in s 355 were located in s 43 of the Building and Construction Industry Improvement Act 2005 (Cth) ("the BCII Act"). Their antecedents were not in Pt 16 of the Workplace Relations Act 1996 (Cth) ("the WR Act"), to which the reverse onus provision, then s 809, applied. No such provision applied to s 43 of the BCII Act. Section 361 now does apply to s 355, of course, but its extension beyond its actual terms, ie to threats, would be more than a mere continuation of a pre-existing legislative regime. It would be law reform of a kind which went unmentioned in the relevant Explanatory Memorandum. The result of applying s 361 as proposed by the applicant would, of course, be to expose a respondent to penal liability in a case in which the relevant applicant had not independently proved the facts relied on. Before taking such a step, and in the face of the plain language of s 361, I would require a more definite indication of legislative intention than the history of the legislation, and the parliamentary materials, disclose.
112 With respect to the Red & Blue scaffolders being denied entry to the La Scala site on 22 June 2013, the applicant relies again on s 355(a) of the FW Act. Here the first question is whether the action taken by Mr Harris, in preventing the Red & Blue scaffolders entering the site, was organised by Mr Edwards. Given the findings I have made above, that question must be answered in the affirmative.
113 The next matter is whether the action organised by Mr Edwards was unlawful, illegitimate or unconscionable. The action in question was, of course, to deny Red & Blue access to the work for which it had been contracted on the site that day, and to deny it access to scaffolding items which it owned. This amounted to a direct interference in the performance of the contract between Red & Blue and ABD and, while there is no suggestion of liability in tort in this proceeding, the circumstances are clearly sufficient to justify the conclusion that Mr Edwards' conduct was illegitimate.
114 In relation to Mr Edwards' intent, I have found that his relevant wrongdoing under s 355 was by way of organising, rather than of directly taking, action. The question arises whether the reverse onus provisions of s 361 apply to conduct which amounts to organising someone else to take action but not to the taking of action as such. They do not do so in terms. What I have said about threats in para 111 above applies equally, mutatis mutandis, here. For reasons which I there expressed, I am not disposed to rely on s 361. But the applicant's case is a sufficiently obvious one, in my view, to sustain the inference, which I draw, that Mr Edwards' intent was to negate Red & Blue's choice in the matter of the employment of Mr Cannon. From the tenor of Mr Edwards' conversation with Mr Notarfransesco on 14 June 2013, Red & Blue would reasonably have supposed that the treatment it received at the hands of Mr Harris at the La Scala site was neither isolated nor referable to some local difficulty arising on that site as such. I find that, in organising that action, Mr Edwards intended to negate Red & Blue's choice, and thus to coerce it.
115 With respect to the Red & Blue scaffolders being denied entry to the Yarra Street site on 17 July 2013, the applicant relies again on s 355(a) of the FW Act. Again, the first question is whether the action taken by Mr Giannakos was organised by Mr Edwards. Given the findings I have made above, that question must be answered in the affirmative.
116 In other respects, the facts and the law with respect to the events of 17 July 2013 are not relevantly distinguishable from those which relate to 22 June 2013. Here too there was a contravention of s 355(a) on the part of Mr Edwards.
117 In relation to the action taken against Red & Blue on the La Scala and Yarra Street sites on 22 June and 17 July 2013, the applicant also, or alternatively, relies on s 346(b) of the FW Act, which provides:
A person must not take adverse action against another person because the other person:
…
(b) engages, or has at any time engaged or proposed to engage, in industrial activity within the meaning of paragraph 347(a) or (b); …
118 It is alleged that Red & Blue engaged in industrial activity when it refused to comply with Mr Edwards' request that Mr Cannon be employed. Here the applicant relies on s 347(b)(iv) of the FW Act, which provides:
A person engages in industrial activity if the person:
…
(b) does, or does not:
…
(iv) comply with a lawful request made by, or requirement of, an industrial association; …
119 The applicant says that Mr Edwards' request for the employment of Mr Cannon was made in the telephone conversation which he had with Mr Notarfrancesco in early June 2013. That seems clearly to be the case, and I so find. Further, the request was repeated when Mr Edwards spoke again to Mr Notarfrancesco on 14 June 2013. As such, the request (on each occasion) was lawful, albeit that the threat with which the request was backed up was not. It is also uncontroversial that Red & Blue did not comply with the request.
120 From there the applicant goes to item 7(c) in the table in s 342(1) of the FW Act, which includes as "adverse action" for the purposes of s 346 action by an industrial association, or an officer thereof, against an independent contractor that has the effect, directly or indirectly, of prejudicing the contractor in relation to a contract for services. By s 342(2)(b) of the FW Act, "adverse action" includes "organising such action".
121 Red & Blue was an independent contractor. When its scaffolders were prevented from entering the La Scala site and the Yarra Street site on 22 June and 17 July 2013, it was, I find, prejudiced in relation to the contracts for services which it had with ABD. Those prejudices were, directly, the doings of Mr Harris and Mr Giannakos respectively. I have found that Mr Edwards organised them. But I would go further and find, even without recourse to s 342(2)(b), that Mr Edwards' organising of what was directly done by the two shop stewards amounted to action which had the indirect effect of prejudicing Red & Blue in relation to those contracts. I find, therefore, that Mr Edwards took adverse action against Red & Blue in the senses indicated.
122 The next question is whether Mr Edwards took that adverse action because Red & Blue did not comply with his lawful request to employ Mr Cannon. Given the findings I have made in the context of s 355 earlier in these reasons, the question needs only to be stated in that form for an affirmative answer to be obvious. I reach that conclusion without recourse to s 361 of the FW Act.
123 For the above reasons, I hold that Mr Edwards took adverse action against Red & Blue in contravention of s 346 of the FW Act on each of 22 June and 17 July 2013 by taking action that had the effect, directly (in the sense of organising as brought in by s 342(2)) and indirectly, of prejudicing Red & Blue in relation to its contracts with ABD at the La Scala and Yarra Street sites, respectively, because Red & Blue had not complied with his lawful request to employ Mr Cannon.
LIABILITY OF THE UNION
124 On the findings made to date, the individual who contravened ss 355 and 346 of the FW Act was Mr Edwards. The applicant contends that the union also directly contravened those provisions or, alternatively, that it is vicariously liable for Mr Edwards' conduct.
125 To establish the direct liability of the union, the applicant relies upon s 363 of the FW Act, the presently relevant provisions of which are as follows:
(1) For the purposes of this Part, each of the following is taken to be action of an industrial association:
…
(b) action taken by an officer or agent of the industrial association acting in that capacity;
…
(3) If, for the purposes of this Part, it is necessary to establish the state of mind of an industrial association in relation to particular action, it is enough to show:
(a) that the action was taken by a person, or a group, referred to in paragraphs (1)(a) to (e); and
(b) that the person, or a person in the group, had that state of mind.
(4) Subsections (1) to (3) have effect despite subsections 793(1) and (2) (which deal with liabilities of bodies corporate).
126 Mr Edwards was an officer of the union, and was acting in that capacity when he did the things which amounted to contraventions of ss 355 and 346. This would seem to produce the result, under s 363, that those things were also done by the union. The only reservation I have as to that conclusion is similar to that expressed in para 83 above. For s 363(1)(b) to operate, there must have been "action taken". Section 355 makes a distinction between taking action and organising action. There may be an argument - not, I stress, advanced by counsel for the respondents - that the deeming provisions of s 363 have no operation in relation to organising action. Here I would take a different view from that which I took in relation to s 361. Historically, a provision with an indistinguishable policy focus from that of s 363(1) of the FW Act was to be found in s 69(1) of the BCII Act, and it applied to "conduct" prohibited under s 43 of that Act, including organising action. Although the explanation for the enactment of s 363(1) was probably to be found in s 799(2) of the WR Act, its presence in the FW Act, apropos the enactment of s 355, was a matter of legislative reorganisation rather than of law reform. In the circumstances, the view I take is that, as a matter of construction, organising action is comprehended by the expression "action taken" in s 363(1) of the FW Act.
127 The application of s 363 to adverse action taken in contravention of s 346 of the FW Act is less problematic. By s 342(2), "adverse action" includes organising such action, the result of which is that to organise action is treated as taking action. The operation of s 363 is, therefore, invoked.
128 Alternatively to s 363, the applicant relied on s 793 of the FW Act to attribute Mr Edwards' conduct to the union. Subsections (1), (2) and (3) of that section provide as follows:
Conduct of a body corporate
(1) Any conduct engaged in on behalf of a body corporate:
(a) by an officer, employee or agent (an official) of the body within the scope of his or her actual or apparent authority; or
(b) by any other person at the direction or with the consent or agreement (whether express or implied) of an official of the body, if the giving of the direction, consent or agreement is within the scope of the actual or apparent authority of the official;
is taken, for the purposes of this Act and the procedural rules, to have been engaged in also by the body.
State of mind of a body corporate
(2) If, for the purposes of this Act or the procedural rules, it is necessary to establish the state of mind of a body corporate in relation to particular conduct, it is enough to show:
(a) that the conduct was engaged in by a person referred to in paragraph (1)(a) or (b); and
(b) that the person had that state of mind.
Meaning of state of mind
(3) The state of mind of a person includes:
(a) the knowledge, intention, opinion, belief or purpose of the person; and
(b) the person's reasons for the intention, opinion, belief or purpose.
129 It is established on the pleadings that, relevantly to the facts of the case, Mr Edwards was acting in his capacity as an officer of the union, and was so acting within the scope of his actual or apparent authority for or on behalf of the union. This is, in my view, sufficient to attract the operation of subss (1) and (2) of s 793 of the FW Act.
130 For the reasons I have given, I hold that, by the operation of ss 363 and 793 of the FW Act, the union contravened ss 355 and 346 of that Act to the same extent as Mr Edwards did.
COMPENSATION
131 The applicant seeks orders, pursuant to s 545 of the FW Act, requiring the respondents to pay compensation to Red & Blue for the damage it has suffered as a result of conduct found to have been unlawful in this proceeding.
132 I shall commence with the narrow, and relatively uncontroversial, front of the applicant's compensation claims. He contends that Red & Blue should be compensated, under s 545(2)(b) of the FW Act, for the loss that it suffered because of the contraventions of ss 355 and 346 in respect of the respondents' conduct on the La Scala and Yarra Street sites referred to earlier in these reasons. As to the La Scala site, Red & Blue was prevented from carrying out work on 22 June 2013 for which it would have invoiced ABD the sum of $2,904.00. As to the Yarra Street site, Red & Blue's quotation of 16 July 2013, which, it is clearly to be inferred, had been accepted by ABD, was for labour, transport and four weeks' hire, in the total sum of $15,180.00. Those services were not provided. That Red & Blue had sustained losses to these extents was not seriously contested by the respondents, either in their counsel's cross-examination of Mr Notarfrancesco or in their final submissions.
133 In the circumstances, I propose to require the respondents to pay to Red & Blue compensation in the sum of $18,084.00. The applicant also seeks an order under s 51A of the Federal Court of Australia Act 1976 (Cth) for the payment of interest on this sum. I shall hear the parties on that claim, both with respect to entitlement and with respect to calculation.
134 On a somewhat broader front, the applicant contends that Red & Blue should also be compensated for the lost opportunity to obtain future work from ABD. Between 26 March 2012 and 17 July 2013, Red & Blue invoiced ABD a total of $386,512.04 for scaffolding services provided across eight commercial construction sites. As noted earlier in these reasons, after 17 July 2013, Red & Blue received no further commercial work from ABD. The applicant claims that the respondents should be required to compensate Red & Blue for the lost opportunity which is to be inferred from this diminution in revenue.
135 In his Statement of Claim, the applicant alleged that, "by reason of the contraventions … alleged herein", Red & Blue suffered loss and damage. The only contraventions so alleged (other than one which was abandoned and does not need to be mentioned) were those I have found to have occurred in relation to the La Scala site on 22 June 2013 and to the Yarra Street site on 17 July 2013. Beyond the sums referred to above arising directly from the loss of the work on the sites as such, the applicant did not prove that Red & Blue had suffered any loss because of those contraventions (within the terms of s 545(2)(b)), or by reason of the contraventions (within the terms of the applicant's pleading). My reasons for that conclusion fall into three broad categories.
136 First, I am not satisfied that the reason for the diminution in Red & Blue's work from ABD (against an assumed baseline represented by the period March 2012 to July 2013) was the respondents' contraventions of ss 355 and 346. No representative of ABD gave evidence in the case. There was, therefore, no direct evidence of why ABD discontinued using Red & Blue on commercial jobs. Neither was there any reason advanced why evidence of this kind might not have been called. Rather, the applicant's case was that a direct relationship between the contraventions and the diminution of ABD work was readily to be inferred. I do not accept that case. Here it must be remembered that the absence of direct evidence on the matter had nothing to do with the respondents. They could not have called evidence on this subject. The court would not, therefore, be the more inclined to draw an inference favourably for the applicant because of the way the respondents conducted their case. Had the applicant called evidence from ABD that the diminution in its use of Red & Blue for scaffolding services was the direct result of its experience on the La Scala and Yarra Street sites, that evidence would have been unsurprising and consistent, probably, with what one would expect. But that is not enough to justify the finding of fact which the applicant seeks.
137 Secondly, there is the problem of quantification. Even if it were to be assumed that the diminution in the flow of ABD work to Red & Blue after 17 July 2013 was the result of the conduct of the respondents found to have been in contravention of ss 355 and 346, the court has no way of knowing what the value of that work would have been in the normal course. No doubt that would depend on such matters as the amount of work that ABD itself had in the months and years after 17 July 2013, on the nature of that work (ie the extent to which scaffolding would be required) and on the stages which that work had reached at various times. Without having at least some evidence on these matters, any award of compensation to Red & Blue would be based on little more than speculation. Presumably, information of the kind that would have removed this inquiry from the realm of speculation could have been readily obtained from ABD itself, but the court was not exposed to it.
138 Thirdly, the whole of the applicant's inferential case operated at what I would call the revenue level. That is to say, in addition to everything else, the court was being asked to base its award upon the inferred amount by which the revenue which Red & Blue derived from ABD work fell short of what it would otherwise have been. But this could never be a satisfactory measure of Red & Blue's loss. Had Red & Blue done the work which the applicant asks the court to infer that it lost, it would have been required to incur costs, including, for example, the wages paid to scaffolders. No attempt was made, in the applicant's evidentiary case, to take these cost savings into account. That is to say, in accounting terms, no attempt was made to estimate the amount by which the gross profit of Red & Blue was diminished as the result of the presumed loss of work from ABD.
139 In part to overcome these evidentiary deficiencies, counsel for the applicant submitted that it was open to the court to make a monetary award in favour of Red & Blue under subs (1) of s 545 of the FW Act. That is the foundational provision which empowers the court to make any order it "considers appropriate" in consequence of its finding that there has been a contravention of a civil remedy provision. It was pointed out, in this regard, that subs (2) of the section does not limit subs (1). That is true, of course, but it does not mean that subs (1) can always function as a kind of fall-back provision after the evidentiary failure of a case which primarily, and naturally, requires consideration under para (b) of subs (2). It is sufficient in the present case for me to express the conclusion, which I reach without hesitation, that it is not appropriate for the court to employ guesswork or speculation to require the respondents to pay a particular amount to Red & Blue where the applicant might have, but did not, construct a detailed evidentiary case under subs (2)(b).
140 On the broadest front, the applicant contends that Red & Blue should also be compensated for the lost opportunity to obtain future work from clients other than ABD. In part, it will be apparent that my reasons for rejecting this claim, which I do, align with those expressed above in relation to ABD itself. In part also, however, they involve additional considerations. It may be that it would not be realistic to expect the applicant to have called evidence from all other significant building and construction companies operating in the commercial sector, but it is likewise much more difficult to perceive the necessary causal link between the contraventions proved in this case and Red & Blue's failure to secure scaffolding work from such companies. I certainly would not be prepared to hold it to be more probable than not that the circumstance that Red & Blue was prevented from entering two sites on two days nearly a month apart caused all those companies to satisfy their scaffolding needs from other sources.
141 Recognising that difficulty in the applicant's case, his counsel submitted that the respondents had imposed, and given effect to, a "black ban" against Red & Blue across the whole commercial construction sector in Melbourne. The evidence on which that submission was based was that of Mr McNamara in his interview with the applicant's investigator on 29 July 2013 that Mr Edwards had told the four scaffolders laid off on 13 June 2013 that Red & Blue would not be allowed on any site. This submission must be rejected. The existence of a broad-based black ban was not alleged in the Statement of Claim, either as a contravention of the FW Act or otherwise. For the court to make a monetary award by reference to the effect of such a ban - assuming it to have been established in point of fact - would be to require the respondents to pay for conduct not found, nor even alleged, to have been unlawful.
142 For the foregoing reasons, the only compensatory order I propose to make is that referred to in para 133 above.
PENALTIES
143 I shall list the proceeding for the purpose of receiving the parties' submissions on the question of the penalties, if any, proper to be imposed on the respondents in respect of their conduct found to have been in contravention of ss 355 and 346 of the FW Act.
I certify that the preceding one hundred and forty-three (143) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jessup.