Federation v Employment Advocate [2001] FCA 1443 | Case summary

THE COURT: 1 The application in this matter sought declaratory and other relief (including penalties) against two unions and a number of union officials on account of their engaging in conduct in breach of various of the "Freedom of Association" provisions (Part XA) of the Workplace Relations Act 1996 (Cth) ("the Act"). The applicant was the Employment Advocate, Jonathan Hamberger. The two unions were the Construction Forestry Mining and Energy Union ("the CFMEU") and the Australian Building Construction Employees and Builders' Labourers' Federation (Queensland Branch) Union of Employees ("the BLF"). The union officials, insofar as presently relevant, were Michael Ravbar and David Hanna. 2 In dealing with the application, the trial judge (i) dismissed most of the claims made; (ii) made declarations that the BLF and Mr Hanna contravened s 298S(2)(c) of the Act; and (iii) adjourned the proceedings to a date to be fixed to hear submissions as to any penalty to be imposed against the BLF and Mr Hanna. Consequential orders were made. 3 Without waiting for the determination on penalties appeals were lodged, first, by the BLF and Mr Hanna against the declarations made concerning them (appeal No Q5 of 2001) and, secondly, by the Employment Advocate against the order dismissing some of the claims made (appeal No Q28 of 2001). The taking of these steps in these circumstances raises a preliminary issue. This is whether the orders made by His Honour are properly to be characterised in this context as interlocutory so as to require leave to appeal. The Preliminary Issue 4 By way of background it should be noted that at no stage prior to the hearing was any direction given or order made "splitting" the issues of contravention and penalty: cf Federal Court Rules O 29 r 2. It was only at the end of oral submissions that counsel for the applicant indicated to his Honour that neither side had made submissions on penalty for "obvious reasons". The trial judge responded by indicating he would deal with the contravention issue first and, depending on the outcome, there would, if needed, be another day for submissions in relation to penalty. 5 The course so proposed of hearing the matter in phases is one commonly taken in a variety of types of civil action as a practical matter in the determination of a proceeding. It does not of itself necessarily lead to the conclusion that the proceeding is or is intended to be split (even if findings are to be made): see Landsal Pty Ltd v REI Building Society, now the Cooperative Building Society of South Australia (1993) 41 FCR 421; or that orders or directions must be made or given at the conclusion of the first phase: cf O 29 r 3. 6 Where the trial judge does proceed to make orders, they will be appellable with leave or as of right depending upon whether, for the purposes of an appeal, they should properly be characterised as interlocutory or final: Landsal's case, above; French Caledonia Travel Service Pty Ltd (t/a Connection Holidays) v Elatri, unreported, FCA, Full Court, 22 May 1992. And such orders will be final where, even though interlocutory in form, they are final "in substance" in that they finally dispose of the rights of the parties: Magman International Pty Ltd v Westpac Banking Corporation (1991) 32 FCR 1 at 15; Arrowcrest Group Pty Ltd v Gill (1993) 46 FCR 90; Landsal's case, above; Malouf v Malouf (1999) 86 FCR 134; and see also Williams, Civil Procedure Victoria, I 64.01.455. 7 The consequence of this is that if a trial judge wishes to retain control of a proceeding that is to be heard in phases to the exclusion of an appeal (whether with leave or as of right), he or she ought refrain from making orders at all until the completion of all phases: see French Caledonia Travel Service Pty Ltd v Elatri, above. In the present matter, orders were made and some of these, moreover, were final orders for appeal purposes - these being those dismissing a number of the claims made and which are the subject of the appeal in Q 28 of 2001. Though the declaratory orders which are the subject of the appeal in Q 5 of 2001 are properly to be characterised as interlocutory for the purposes of an appeal (see the reasons for judgment in Q 6 of 2001 which was heard together with these appeals: [2001] FCA 1442) leave to appeal against them should be granted. The two appeals (ie Q 5 and Q 28) are so interrelated as to render it inconvenient and potentially oppressive to insist upon the need for the separate hearing of an appeal against the declarations after that part of the matter to which they relate is finally determined. 8 It should, though, be added that if the orders in this matter were all merely interlocutory, a very live consideration on any application for leave to appeal would be whether it would be appropriate both further to disrupt the conduct of the trial and, potentially, to fragment the appellate process itself by granting leave (should a later appeal be lodged against the penalties imposed after an unsuccessful appeal against the interlocutory orders): cf R v DeMarchi [1983] 1 VR 619. The Background Setting 9 It is appropriate to begin by noting who or what are the relevant actors involved in this proceeding. The events in question occurred on a building site (the Museum of Tropical Queensland) at Flinders Street, Townsville. (i) Leighton Contractors Pty Ltd ("Leighton") was the contractor engaged in building works at the site. Leighton's on site project manager was Nathan Geoffrey Harmsworth. (ii) Hedley Plumbing Pty Ltd ("Hedley") contracted with Leighton to perform roofing, façade cladding and plumbing at the site. (iii) David John Poppi, a carpenter, was engaged by Hedley as an independent contractor to provide his own carpentry service and to supervise and manage the provision and performance of the roofing and cladding operations on the site as Hedley's representative. (iv) Ronald Shane Thinee and Ronald Michael Thomas, both carpenters, were engaged by Hedley as independent contractors to provide carpentry services at the site. (v) Michael Ravbar, the third respondent in Q 28 of 2001, was a member of the CFMEU and was employed by it as a state organiser. (vi) David Hanna, the second appellant in Q 5 of 2001 and the fourth respondent in Q 28 of 2001, was a member, employee and officer of the BLF and a member and officer of the CFMEU. (vii) The CFMEU, the first respondent in Q 28 of 2001, is an industrial organisation registered under s 191 of the Act. (viii) The BLF, the first appellant in Q 5 of 2001, is an industrial organisation of employees registered under the Industrial Organisations Act 1997 (Qld) ("the State Act"). (ix) The Employment Advocate, the respondent in Q 5 of 2001 and appellant in Q 28 of 2001, is an office created under s 83BA of the Act. 10 The incidents which gave rise to the proceeding out of which these appeals arise occurred on 4, 5 and 10 March 1999 and are embodied in four conversations that are alleged to have occurred on one or other of those dates. They were conveniently recounted by the trial judge as follows: On 4 March 1999, Hanna and Ravbar were on the Museum of Tropical Queensland site. Both of them attended a site meeting of workers who worked on the site at about 10.00 am. After the meeting, at about 10.45am, Hanna had a conversation with Poppi who had left the meeting when Hanna advised that he would not commence the meeting until management representatives had left. The Advocate alleges that the following conversation occurred: "Hanna: 'Are you and your blokes going to join the union?' Poppi: 'No, I didn't think it was compulsory to join the union. I'm the foreman on site, I didn't think I had to join the union' Hanna: 'If you and your blokes don't joint the union by Monday, we will have a meeting and the other workers on site will vote to close down the site and you won't be allowed to work.' Poppi: 'I didn't think it was compulsory to join the union.' Hanna: 'If you and your blokes don't join the union by Monday, we'll have a show of hands to close down the site. You won't be allowed on site.' Poppi: 'Are you saying we can't work?' Hanna: 'No, you just won't be allowed to work on this site.'" At or about 10.30am, Ravbar had a conversation with Thinee and Thomas. The Advocate alleges that during the conversation the following exchange occurred: "Ravbar: 'Are you two guys working for Hedleys?' Thinee: 'Yes that's right.' Ravbar: 'Are you in the union?' Thinee: 'No we are not.' Ravbar: 'I would like you to join the union.' Thinee: 'We have only four to five days work before we finish our part of the contract. I could be working on houses or anywhere.' Thomas: 'I don't want to join.' Ravbar: 'I've heard all that before but while you're on this site you will have to join the union.' Thinee: 'You will have to see Leighton's about that.' Ravbar: 'I will go and see Leightons and I will come back to you. There will be a meeting on Monday and if you haven't joined by then there will be a vote as to whether the workers want you to stay on site or not. You can either sign up now and you won't have to worry about all this.'" At or about 11.00 am on 4 March 1999, Ravbar and Hanna had a conversation with Nathan Geoffrey Harmsworth ("Harmsworth"), the project manager for Leighton on the site. The Advocate alleges that during the conversation the following exchange occurred: "Ravbar: 'There are two blokes from Hedley that aren't union members. They need to be members! You need to go and talk to them.' Harmsworth: 'I can talk to them and ask them to join but I can not make them join.' Ravbar: 'You will need to talk to them and they need to join the union. We're coming back Monday and this needs to be resolved.' Harmsworth: 'We can't make them join the union, it is against the law.' Ravbar: 'You will need to talk to them!' Harmsworth: 'I will go and have a talk to them but I can't make them join if they don't wish to.' Ravbar: 'I'll be back on Monday and it had better be resolved.'" Later on 4 March 1999 a telephone discussion between Harmsworth and Ravbar occurred. The Advocate alleges that the following conversation occurred: "Harmsworth: 'As far as the two Hedley boys go they are still not prepared to join the union.' Ravbar: 'They have to join.' Harmsworth: 'Michael are you telling me I have to force these guys to join the union.' Ravbar: 'You know Nathan they must join, they are a potential safety risk to other workers on the site.' Harmsworth: 'How on earth can they be unsafe.'" And that later in the same conversation: "Hanna: 'Tell him if they don't join we will be putting claims out on other sites.' Ravbar: 'If they don't join I will just have to rip up the statement of intent and all the agreement I have made with Bruce Cull.'" On 5 March 1999, Ravbar left a business card at Harmsworth's office which had written on the back of it "Give us a call about what happened with those carpenters from yesterday. If not fixed, see you Monday." … On 10 March 1999, Ravbar and Hanna approached Poppi, Thinee and Thomas on the Museum of Tropical Queensland site. The Advocate alleges the following conversation occurred: "Poppi: 'No, I'm not joining.' Hanna: 'Why.' Poppi: 'It's not compulsory to join the union.' Ravbar: 'It's not compulsory but everyone else on the site is in the union and you should be as well, you should have joined from day one.' Poppi: 'We have a contract with Leighton and they are saying that it is not a union site and not compulsory to join the union.' Hanna: 'Right fuck you and Hedley. Hedley have got jobs in Cairns as well and we will get them there too. We will talk to these other blokes and we will sort this out.'" 11 The Employment Advocate made various complaints on account of these conversations. 12 First, it was alleged that Hanna's conversation with Poppi on 4 March 1999 constituted a contravention of s 298S(2)(b) and (c) of the Act by Hanna, the BLF and the CFMEU. 13 Secondly, it was alleged that the same conversation was conduct constituting a contravention of s 298P(3)(a) and (b) of the Act. 14 Thirdly, Ravbar's conversation with Harmsworth on 4 March 1999 and his leaving of the business card on 5 March 1999 were alleged to be conduct engaged in by Ravbar, the CFMEU and the BLF in contravention of s 298S(2)(b) of the Act. 15 Fourthly, the 10 March conversation, is alleged to have constituted conduct by Hanna, the BLF and the CFMEU in contravention of s 298S(2)(b) of the Act. 16 Before referring to the statutory setting of those allegations and these appeals, we would note that only the first of the above was accepted by the trial judge and then only in relation to Hanna and the BLF. Hanna and the BLF have appealed in Q 5 of 2001 against the orders made against them. The Employment Advocate in Q 28 of 2001 appeals against the orders dismissing the remaining three claims made. The Statutory Context 17 The particular objects of Part XA of the Act are stated in s 298A (in addition to the principal object of the Act contained in s 3) to be: "(a) to ensure that employers, employees and independent contractors are free to join industrial associations of their choice or not to join industrial associations; and (b) to ensure that employers, employees and independent contractors are not discriminated against or victimised because they are, or are not, members or officers of industrial associations." 18 Section 298S of the Act provides: "298S(1) In this section: discriminatory action, in relation to an eligible person, means: (a) a refusal to make use of, or to agree to make use of, services offered by the eligible person; or (b) a refusal to supply, or to agree to supply, goods or services to the eligible person. eligible person means a person who is not an employee, but who: (a) is eligible to join an industrial association; or (b) would be eligible to join an industrial association if he or she were an employee. 298S(2) An industrial association, or an officer or member of an industrial association, must not: (a) advise, encourage or incite a person (whether an employer or not) to take discriminatory action against an eligible person because the eligible person is not a member of an industrial association; or (b) take, or threaten to take, industrial action against an employer with intent to coerce the employer to take discriminatory action against an eligible person because the eligible person is not a member of an industrial association; or (c) take, or threaten to take, industrial action against an eligible person with intent to coerce the person to join an industrial association." 19 The term "industrial action" as used in s 298S(2)(b) and (c) is defined in s 298B(1) to mean (inter alia): "(d) a failure or refusal by persons to attend for work or a failure or refusal to perform any work at all by persons who attend for work." 20 Section 298B(2) deems action done by certain persons to be the action of an industrial association. It provides (inter alia): "298B(2) For the purposes of this Part, action done by one of the following bodies or persons is taken to have been done by an industrial association: … (b) an officer or agent of the industrial association acting in that capacity" 21 Section 298P(3) provides: "298P(3) An industrial association, or an officer or member of an industrial association, must not: (a) advise, encourage or incite an employer; or (b) organise or take, or threaten to organise or take, industrial action against an employer with intent to coerce the employer; to take action in relation to a person that would, if taken, contravene section 298K." 22 Section 298K, in turn, provides: "298K(1) An employer must not, for a prohibited reason, or for reasons that include a prohibited reason, do or threaten to do any of the following: (a) dismiss an employee; (b) injure an employee in his or her employment; (c) alter the position of an employee to the employee's prejudice; (d) refuse to employ another person; (e) discriminate against another person in the terms or conditions on which the employer offers to employ the other person. 298K(2) A person must not, for a prohibited reason, or for reasons that include a prohibited reason, do or threaten to do any of the following: (a) terminate a contract for services that he or she has entered into with an independent contractor; (b) injure the independent contractor in relation to the terms and conditions of the contract for services; (c) alter the position of the independent contractor to the independent contractor's prejudice; (d) refuse to engage another person as an independent contractor; (e) discriminate against another person in the terms or conditions on which the person offers to engage the other person as an independent contractor." 23 A "prohibited reason" for s 298K(1) and (2) purposes includes that an "independent contractor … is not, or does not propose to become, a member of an industrial association": s 298L(1)(b). 24 Section 298V creates a presumption as to a person's or an industrial association's reason for conduct. It provides: "298V If: (a) in an application under this Division relating to a person's or an industrial association's conduct, it is alleged that the conduct was, or is being, carried out for a particular reason or with a particular intent; and (b) for the person or industrial association to carry out the conduct for that reason or with that intent would constitute a contravention of this Part; it is presumed, in proceedings under this Division arising from the application, that the conduct was, or is being, carried out for that reason or with that intent, unless the person or industrial association proves otherwise." 25 Finally, s 298D is one of several provisions limiting the application of Part XA. It provides: "298D This Part applies to: (a) conduct by an organisation; and (b) conduct by an officer of an organisation acting in that capacity; and (c) conduct carried out with a purpose or intent relating to a person's membership or non-membership of an organisation." 26 An "organisation" is defined to be an organisation registered under the Act: s 4(1) of the Act. The CFMEU was so registered. The BLF was not. Each of the CFMEU and BLF was an "industrial association" as defined in s 298B(1). Q 5 of 2001: The BLF and Hanna appeal 27 In relation to the first of the 4 March conversations (ie that between Hanna and Poppi), the trial judge concluded that Hanna's statement meant, and was intended to mean, that unless Poppi, Thinee and Thomas joined the relevant union (ie the CFMEU) by the following Monday, he as a union official would procure the other workers on site to take industrial action by withdrawing their labour and closing down the site to deny Poppi, Thinee and Thomas the opportunity to work on the site. As Poppi, Thinee and Thomas were "eligible" persons within the meaning of s 298S(1) of the Act, and as Hanna was acting in his capacity as an official of the BLF at the time (s 298B(2)), both Hanna and the BLF were found in consequence to have engaged in conduct in contravention of s 298S(2)(c). They had threatened to take industrial action against the three independent contractors with intent to "coerce them to join the CFMEU". 28 His Honour's conclusions were challenged on a number of bases in this appeal. The first of these can be disposed of briefly. While accepting the trial judge's finding that in the event of conflict, Poppi's evidence should be preferred to Hanna's, the appellants contend, nonetheless, that His Honour should not have found that there was any reference made by Hanna in the 4 March conversation to "closing down the site". Though Poppi did not mention closing down the site in a brief note made by him on 4 March 1999, it was referred to in a more detailed statement made to an officer of the Employment Advocate several days later. That statement was in evidence. It was open to the trial judge to make the finding he did in light of the evidence. 29 Five particular matters are relied upon to found the appeal. Before dealing with each of them reference should be made to the pervasive objection taken by the appellants to the alleged asymmetry between the pleadings and both the final submissions made by the respondent and the findings made thereon by the trial judge. 30 The Amended Statement of Claim can fairly be criticised for being less revealing of the precise substance of the particular claims made by the Employment Advocate than it could and should have been. This is particularly so of the claim based on s 298S(2)(c) - the claim that ultimately was successful before His Honour. Whatever the inadequacies of the pleading, the appellants were alerted to the fact that a contravention of that section was alleged, albeit without elaboration, and was to be met. 31 The appellants have not contended that they have been prejudiced by the way the case was pleaded and presented, or by its taking the course it did, or that there has otherwise been some miscarriage of justice. The deficiencies in pleading the s 298S(2)(c) claim have one practical consequence which is noted below. But those deficiencies on their own do not justify challenging His Honour's findings merely on the basis that they related to matters not pleaded. (i) The Finding that the Threatened Action was Industrial Action 32 The industrial action found to have been threatened by Hanna was that he, as a union official, would procure the other workers on the site to withdraw their labour and close down the site to deny Poppi, Thinee and Thomas the opportunity to work on the site. The particular form of industrial action proscribed by the Act and relied on by the trial judge was "a failure or refusal by persons to attend work": s 298B(1)(d) of the Act. 33 It is contended that the action threatened by Hanna could not amount to industrial action for either of two reasons. The first is that Hanna threatened to "have a vote" to close down the site. Having a vote to take - or procuring the taking of - industrial action is not itself industrial action. The second reason advanced is that "closing down the site" is not within the definition of industrial action. It is at best a consequence of industrial action if all the workers on the site withdraw their labour. The withdrawal of labour by other workers would not itself have prevented Poppi, Thinee and Thomas from working. 34 There is no substance in either of these contentions. As to the first, Hanna's threat to procure industrial action (ie a refusal to work) was itself a threat to take that action. Implicit in that threat found was the representation that, though the taking of the action required the participation of others (ie the workers), Hanna had as a union official the capacity to take steps to initiate that participation. Given that s 298S(2) is directed at the conduct of "an industrial association or an officer" as well as of a member, the proscription on the taking or threatening of industrial action by an industrial association or officer, clearly contemplates industrial action that the association or officer can procure others to take in fact because the nature of the industrial action requires the participation of those others for its effectuation. This becomes the more obviously so when one has regard to the various definitions of "industrial action" in s 298B(1). Some of the defined forms of industrial action may be able to be taken directly by an industrial association or officer (see paras (b) and (c) of the definition), while others are of such a character as to require the participation of others for their effectuation even where the taking of that action itself is ordained by the association or an officer. 35 The second reason advanced by the appellants is likewise untenable. If the refusal to work can properly be said to be industrial action "against" Poppi and the other independent contractors (see below) the significance of the "closure of the site" finding - which is the foreshadowed consequence of the action - becomes more apparent when considered in the context of s 298S(2)(c)'s requirements. The intent of the threat must be "to coerce" Poppi and the others to join the CFMEU. The foreshadowed consequence of the threatened action (variously referred to in the evidence as "closing down the site", not being "allowed on the site" and "not being allowed to work on this site") embodied the coercive burden of the action to be taken. (ii) Taking the Industrial Action against Poppi, Thinee and Thomas 36 The most significant question in this appeal is whether it can properly be said for s 298S(2)(c) purposes that the industrial action found by the trial judge to be threatened was to be taken "against" the three independent contractors. The appellants submit that as the threatened industrial action was a withdrawal of labour, it could only be taken against Leighton as the employers of that labour. They contend, in consequence, that the trial judge confused the target of the intention to coerce (ie the independent contractors) with the target of the industrial action (ie Leighton). 37 It does no violence to ordinary usage to say that, insofar as the threat of industrial action (a) was caused by the failure of the three independent contractors to join the CFMEU; (b) was communicated directly to Poppi; (c) was aimed at securing their membership of the union; and (d) involved such action as was within the power of Hanna and could be used against the three to secure Hanna's end, that industrial action was to be taken against the three. 38 The workers' employer as well had to endure the industrial action. Their employment relationship with Leighton provided the vehicle for the CFMEU being able to take action against the independent contractors. Leighton was, in consequence, necessarily implicated in the matter. In one sense the action was directed against Leighton in that it sought to coerce Leighton to take action against Hedley by threatening to dispense with its services, but that action against Leighton also provided the means of taking action against Poppi and the others in that it was designed to have them join the union if they wished to continue to work on the Leighton site instead of supplying services to Hedley at some other site. 39 The sole question to be answered is whether the language of s 298S(2)(c) in its statutory setting precludes it being construed in accordance with its ordinary and natural meaning. The provisions of Part XA clearly contemplate circumstances in which an industrial association, officer or member will be guilty of a contravention of the action by taking action (including industrial action) against B for the purpose or object of securing an effect upon, or consequence for, C. The following are directly illustrative of this (omitting references to threatened action): (a) "organise or take … industrial action against an employer with the intent to coerce the employer [to take specified action against C]": s 298P(3) and (4); "take … action having the effect, directly or indirectly, of prejudicing a person in the person's employment": s 298Q; "advise [etc] a person (whether an employer or not) to take discriminatory action against [C]": s 298S(2)(b). These types of provision acknowledge explicitly that, to secure a particular result, indirect rather than direct action against a person may be, or may be necessary to be, taken. But to the extent that they are premised upon a factual situation in which A takes action against B for the purpose of coercing - or inducing (s 298S(2)(a)) - B to take action against C (s 298P(3) and (4) and s 298S(20(b)), they do not assist in any way in the construction of s 298S(2)(c) as they are concerned with cumulative action involving distinct actors. For its part, s 298Q is likewise unhelpful as its concern (for present purposes) is with the effect of action and not with its having been taken "against" any particular person. 40 One is, in consequence, left to construe the bare words of s 298S(2)(c) - "threaten to take industrial action against an eligible person with intent to coerce the person …" - unaided and unaffected by what might be suggested by other substantive provisions of Part XA. Having regard in particular to the objects of Part XA stated in s 298A, there is no reason for not giving the words of the subsection their ordinary and natural meaning which, in the present context, means industrial action directed at or towards an eligible person. So construed the subsection encompasses the industrial action found by the trial judge in this matter. Accordingly the appellants' submissions must be rejected. (ii) The Appellants' Intent to Coerce 41 Apart from taking a pleading point in relation to this issue, the appellants contend that the mere taking of industrial action does not amount to coercion. Though the respondent in submissions at trial did purport to rely upon the presumption of intent raised by s 298V of the Act, the trial judge made no reference to that provision. His Honour's finding that Hanna and the BLF had the intent to coerce proscribed by s 298S(2)(c) was, on a fair reading of the reasons for judgment, an inference drawn from the conduct of the appellants in its setting. That inference clearly was there to be drawn and for this reason we reject the appellants' submission. 42 It should, though, be said that it may not have been open to the respondent both on the state of the pleadings and in light of the course of the trial, to invoke the presumption of s 298V. While the Amended Statement of Claim baldly asserted that Hanna's conduct constituted "a threat of industrial action" (para 18) and that it was "in breach of: … (iv) s 298S(2)(c) of the Act" (para 22), it did not, for s 298V(a) purposes expressly "allege that the conduct was … carried out for a particular reason or with a particular intent". That allegation, we understand, was only made explicitly in written submissions after the evidence had been taken. It should have been made clearly and unequivocally much earlier in the proceeding. (iii) The Capacity in which Hanna Acted 43 The trial judge's finding was that Hanna, acting in his capacity as an officer of the BLF, was concerned to enrol Poppi, Thinee and Thomas in the CFMEU as he held the view that the interests of workers on the site who were members of the BLF required that other workers on the site with whom they were working should be unionised. 44 The appellants' contention is that there was no evidence that such was Hanna's concern or that he held the view so ascribed to him. 45 It was Hanna's own evidence that (i) he regarded Thomas and Thinee as potential members of the CFMEU; (ii) he worked alongside the CFMEU organiser in North Queensland mainly to promote the benefits of being a union member for BLF people; (iii) he was on site with Ravbar, a CFMEU official; (iv) he wanted Thinee and Thomas spoken to by Ravbar as he had concerns about workcover and protection for public liability as he had BLF workers on the site working near them and he didn't want his workers being exposed in any manner; and (v) he recruited non-trade persons for the BLF. 46 That evidence was sufficient to justify the finding made by His Honour both as to the capacity in which Hanna was acting and as to the union (the CFMEU) into which he wanted Thinee and Thomas enrolled. As his conduct - hence the BLF's conduct: s 298B(2) - related to the independent contractors' membership of the CFMEU it fell within the scope of Part XA of the Act: s 298D(c). 47 The submission should be rejected. (iv) The Ultimate Finding 48 The final challenge made to His Honour's findings relates to alleged differences in the wording of several of the findings that gave rise to the s 298S(2)(c) contravention, between the place in the reasons where they were made and their reiteration as conclusions at the end of the reasons. All that need be said of this is that the conclusions, read in the context of the reasons as a whole, are a summarised expression of the findings made and those findings are themselves unobjectionable.

Appeal Ground One 51 The claim made in the application was that in his conversations and dealings with Harmsworth on 4 and 5 March, Ravbar (and the CFMEU) advised, encouraged or incited Leighton (though Harmsworth) to take discriminatory action against Thinee and Thomas as persons eligible to be members of the CFMEU in contravention of s 298S(2)(a). Section 298S(1) defines "discriminatory action" to be (inter alia) the refusal to use services offered by, or to supply goods or services to, the eligible person. 52 The trial judge found that (i) Ravbar, acting as an official of the CFMEU, engaged in the conduct on 4 and 5 March alleged by the Employment Advocate to cause Harmsworth on behalf of Leighton to procure Thinee and Thomas to join the CFMEU; (ii) the means of persuasion to be used by Harmsworth to procure that outcome were not discussed; (iii) Harmsworth made it clear to Ravbar that he would do nothing unlawful to persuade the men to join the CFMEU; (iv) it was implicit in Ravbar's statements that a failure of the two to join would have adverse industrial effects for Leighton; but (v) Ravbar made no explicit or implicit statement or suggestion that Leighton should take any action which would be prejudicial to the interests of the two carpenters. His Honour accepted Harmsworth's evidence that Ravbar asserted that the Statement of Intent required that workers on site be members of the CFMEU. 53 Distinctly his Honour found that (i) Leighton was not a user of services supplied by Thinee or Thomas, or a supplier of goods or services to them; (ii) Hedley was the relevant supplier of services to, and user of services supplied by, Thinee and Thomas those services being supplied and used under contracts with each of them as independent contractors; and (iii) they were in no contractual relationship with Leighton. 54 The trial judge concluded: "Leighton … was in no position on 4 and 5 March 1999 to take discriminatory action against Thinee or Thomas because they were not contractors to it and this was known by both Harmsworth and Ravbar. Ravbar, I find, was not concerned with how Thinee and Thomas were persuaded to join the CFMEU; it was sufficient for his purposes that Leighton in his view had an obligation under the Statement of Intent to ensure union membership on site and that he merely intended to press Leighton, as hard as was required, to satisfy that obligation under the Statements of Intent. I am not satisfied to the requisite degree or at all that Ravbar, on 4 and 5 March 1999, advised, encouraged or incited Leighton to take discriminatory action as defined in s 298S(1) against Thinee or Thomas. In those circumstances, no question of intention or reason for the conduct of Ravbar arises." 55 The Employment Advocate challenges this conclusion on two bases. The first is that the finding that there was no implicit suggestion that Leighton take prejudicial action against the two carpenters cannot be supported. Secondly, it is not necessary for the purposes of s 298S(2)(a) that the person invited (ie Leighton) to take discriminatory action against an eligible person (ie Thinee and Thomas) be in a contractual relationship with that eligible person. 56 It is unnecessary, in our view, to consider the second of these matters. Consistently with credibility findings favourable to Harmsworth and adverse to Ravbar, it clearly was open to his Honour on the evidence before him properly to make the findings that Ravbar's focus was on Leighton's alleged obligation under the Statement of Intent and that there was no explicit or implicit suggestion made by Ravbar that Leighton should take action prejudicial to the interests of Thinee and Thomas. The Employment Advocate's contention that the contrary conclusion was the only one allowable in the circumstances is unsustainable. The findings are fatal to this ground of appeal. Appeal Grounds Two and Three 57 Claims were made in the original application (inter alia) (i) that the conduct of Hanna (hence of the CFMEU and the BLF) in his conversations with Poppi on 4 March 1999 contravened s 298S(2)(b) and 298P(3)(a) and (b) of the Act; and (ii) that Hanna's (hence the two unions') conduct in his conversation with Poppi, Thinee and Thomas of 10 March 1999 contravened s 298S(2)(b) of the Act. The trial judge rejected each of these for a common reason relating to the construction of the three sub-sections in question. 58 The trial judge noted that the conduct proscribed by the three subsections was conduct in relation to an "employer". Hedley was not the employer of Poppi, Thinee and Thomas though it was an employer of labour unconnected with the works being performed on the museum site. The industrial action threatened by Hanna related to both the museum and other Hedley sites. 59 The construction his Honour placed on s 298P(3) and s 298S(2)(b) was that the relevant action to be taken by or against an "employer" was to be taken by or against it in that capacity. 60 His Honour commented: "The obvious situation that s 298S(2)(b) and s 298P(3) is directed at, is where the same work of an employer is carried out by a mix of employees who are members of an industrial association and independent contractors who are not. Similarly it is intended to operate where the workforce of an employer in one area of the employer's operations is unionised and that workforce takes, or threatens to take, industrial action, because the work of the employer in another area is carried out by non-unionised independent contractors. In the present case the conduct of Hanna, in threatening industrial action, goes no further than threatening action amounting to the withdrawal of labour on site, or on other sites where the BLF or the CFMEU had a membership, which would prejudice Hedley in the performance of work on those sites because it is contracting with independent contractors. There is no evidence that Hanna was threatening to take or procure the taking of industrial action by labour employed by Hedley against it in its capacity as an employer of that labour. For the above reasons, the Advocate fails to make out a contravention of s 298P(3) or s 298S(2)(b) by Hanna." 61 In both the second and third grounds of appeal the Employment Advocate submits that, in requiring the action to be by or against an employer in its capacity as an employer, his Honour placed too narrow a construction on the sub-sections. It is contended that there is no textual or contextual reason to so restrict the operation of the subsections. Rather, once it is established that the person in question (ie Hedley) is someone who employs labour, s 298S(2)(b) and s 298P(3) have application irrespective of how or when that labour is employed. 62 We disagree. There are significant textual indications within Part XA of the Act of deliberate linguistic differentiation between the person employing labour (ie an "employer") and the person engaging independent contractors (ie a "person"): see s 298N; and of the consequential distinct capacities in which they act vis-ŕ-vis their actual or potential employees or independent contractors: see eg s 298K(1) ("employer") and s 298K(2) ("person"); s 298M (employer-employee or person-independent contractor "as the case requires"). 63 Insofar as s 298P(3) is concerned it is plain that the subsection is structured in conformity with the differentiation noted above. Its concern is with the conduct of an industrial association, etc towards an "employer" the object of which is to induce, etc the employer to take action that would, if taken, contravene s 298K. That latter section in turn is concerned with the conduct of an "employer" against an actual or potential employee (s 298K(1)) or of a person against an actual or potential independent contractor. Given this explicit differentiation in s 298K, the limitation in s 298P to conduct towards, and by, an employer evidences a clear and limiting legislative intent. If s 298P(3) was intended to extend to inducements etc to take action against independent contractors (ie s 298K(2)), one would have expected the legislature to have followed the same course as that in s 298S(2)(a) and to have used the formula "a person (whether an employer or not)" in place of "an employer". To adopt the language of the trial judge, s 298P(3) is concerned with action towards, and by, an employer in its capacity as an employer. 64 Though in a more complex setting, s 298S(2)(b) contains a like limitation. Before indicating why this is so it is helpful to restate the terms of subclause (2)(b). It provides: "An industrial association, or an officer or member of an industrial association, must not: … (b) take, or threaten to take, industrial action against an employer with intent to coerce the employer to take discriminatory action against an eligible person because the eligible person is not a member of an industrial association." The proscribed action of an industrial association, etc is again limited to industrial action against an "employer" that is taken (or threatened) with a particular intent. Accordingly, the relevant "industrial action", as defined by s 298B(1), that might be taken by an industrial association will be bans, limitations or restrictions on the performing of work etc referred to in sub-paras (b) and (c) of the definition. 65 As is clear from s 298S(2)(c), industrial action need not necessarily be taken against a person who is an employer. It can be against an "eligible person". But if for the purposes of s 298S(2)(b) Parliament intended to cast that subsection's net more widely to include persons who engaged independent contractors, it again could have been expected to have used the formula employed in s 298S(2)(a) of "a person (whether an employer or not)". Having so limited the subsection to industrial action against an employer, the consequence must be, as the trial judge correctly found, that the industrial action must be against the employer in its capacity as an employer of labour. Consequently, "industrial action" as defined in s 298B(1), by an industrial association or its officers must involve "a ban, limitation or restriction on the performance of work etc" by employees of the employer. His Honour, in a finding that was open to him, was satisfied that the action threatened for the purposes of s 298(2)(b) did not fall within that category. 66 In our view, no error has been committed in the construction placed on the three sub-sections. That construction does not mean that Hanna's conduct was inoffensive for the purposes of the Act, as his Honour's findings on s 298S(2)(c) illustrate. Rather it merely points up the limits that Parliament has placed upon the scope of several sub-sections of the Act. 67 We reject the second and third grounds of appeal. Conclusion 68 Leave to appeal should be granted but the appeals should be dismissed. I certify that the preceding sixty-eight (68) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Lee, Finn and Merkel.

Federation v Employment Advocate

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