Hadgkiss v CFMEU

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

AND: CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION

CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION (NSW BRANCH)

Introduction 1 The background to this appeal and the issues to be determined have been set out by Buchanan J and it is unnecessary to repeat them. 2 I agree with Buchanan J for the reasons which he gives in [90] to [96] that the appeal in relation to the alleged contravention of s 170NC by Mr Lane on 17 February 2004, should be dismissed. 3 In my view the appeal in relation to the alleged contravention of s 298SC(c) by Mr Lane on 17 February 2004 and the alleged contravention of s 298S(2)(a) by Mr Casper on 18 February 2004 should also be dismissed.

Alleged contravention of section 298SC(c) by Mr Lane on 17 February 2004 4 Section 298SC(c) of the Workplace Relations Act 1996 (Cth) relevantly provides: 298SC A person must not make a false or misleading representation about: … (c) another person's obligation to join an industrial association. 5 In [20] to [23] of the statement of claim it was alleged that: 20 On 17 February 2004 the Fourth Respondent informed Mr Suter that each ABN worker (except for Norman Philipp Junior) would not work on the Lanskey site or the HY site or any other site in Wollongong unless each was a member of or joined the First Respondent and/or Second Respondent. 21 In so doing the Fourth Respondent represented that each ABN worker (except for Norman Phillip [sic] Junior) was obliged to join the First Respondent and/or Second Respondent in order to work on the Lanskey site, the HY Site and any other site in the Wollongong area. 22 The fact is that it was not necessary and each ABN worker (except for Norman Phillip [sic] Junior) was not obliged to join the First Respondent and/or Second Respondent to work on the Lanskey site, the HY site or any other site in the Wollongong area. 23 The representation pleaded in paragraph 21 was false and misleading. 6 The primary judge found that Mr Lane, who is the fourth respondent and an organiser employed by the first and second respondents, said to Mr Suter, the foreman of the plastering contractor Pro Finish Pty Ltd (Pro Finish), on 17 February 2004 that the Hansen Yuncken site in Wollongong was "'going to be a union site', meaning thereby, one at which you couldn't work if you didn't have a Union membership ticket". 7 His Honour held at [294(b)] that there was no "representation made to the effect that the Wollongong site was a Union site, with the consequence that, in order to work at such site, the relevant workers were obliged to join the first respondent and/or the second respondent" (original emphasis). Consequently, his Honour held that the alleged contravention had not been established. 8 The appellant contends that his Honour should have held that the words found to be said by Mr Lane constituted a representation about another's obligation to join an industrial association that was false and misleading, in breach of s 298SC(c). The appellant contends that his Honour was in error in not considering whether the statement that the site was going to be a union site fell within s 298SC(c). 9 The essence of the appellant's argument is explained in [12] and [13] of his written submissions as follows: 12. It is recognised that a representation as to future matters can contain an implied representation as to a present state of mind or that there is a basis for such a state of mind. Mr Lane's statement implied that there is such a thing as a 'union site', that is, a site at which a worker had to join the union in order to work on that site. The effect of Mr Lane's statement was that the ABN workers would only be able to work on the Wollongong site if they joined the union. 13. Further, the statement that the Wollongong site was 'going to be a union site' was not referring to just any time in the future. The context in which Mr Lane made the statement was in respect of the time in the near future when the Profinish workers sought to work on the Wollongong site. That was the only purpose in making the statement to Mr Suter. 10 The appellant relied on James v ANZ Banking Group Ltd (1986) 64 ALR 347 where Toohey J said at p 372: (2) The mere fact that representations as to future conduct or events do not come to pass does not make them misleading or deceptive: Bill Acceptance Corporation Ltd v GWA Ltd (1983) 50 ALR 242. (3) Nevertheless, a statement relating to the future may contain an implied statement as to present or past fact. It may represent impliedly that the promisor has a present intention to make good the promise and it may represent impliedly that he had the means to do so: Thompson v Mastertouch TV Services Pty Ltd (1977) 15 ALR 487. (4) A statement involving the state of mind of the maker of the statement, eg promises, predictions and opinions, ordinarily conveys the meaning that the maker of the statement had a particular state of mind when the statement was made and that there was basis for that state of mind. If the meaning contained in or conveyed by the statement is false in that or in any other respect, there will have been a contravention of s 52: Global Sportsman Pty Ltd v Mirror Newspapers Ltd (1984) 55 ALR 25; Australian Ocean Line Pty Ltd v West Australian Newspapers Ltd (1984) 58 ALR 549. 11 In [294(b)] his Honour summarised his conclusion. Whilst the conclusion was succinct, it followed from a detailed examination of the events of 17 February 2004, which was set out at [201] to [243]. Within the description of the events, his Honour made some findings of fact, made certain assessments of the reliability of the evidence of witnesses, and painted a full picture of the ebb and flow of the meeting including the moods of the participants and the broad scope of the issues with which the meeting dealt. The appellant's argument must be assessed by reference to the full consideration given by his Honour to all these matters, as well as by reference to the conclusion expressed in [294(b)].

The reasons for judgment of the primary judge 12 On the evening of 16 February 2004, Mr Repas, the principal of Pro Finish, rang Mr Suter to tell him that there was no work for Pro Finish at the Wollongong site the next day, as there were a few problems, including that a work method statement was not ready. 13 On 17 February 2004, Mr Lane started the day by going to the Wollongong site and giving Mr McEwan, the Project Manager of the Wollongong site employed by the head contractor, Hansen Yuncken, some names of plastering contractors who would be suitable for work on the site. MrMcEwan explained that Hansen Yuncken would consider the suggested plasterers if they were competitive but that he would continue with Pro Finish if it supplied all relevant paperwork. 14 Mr McEwan contacted Mr Suter to arrange an urgent meeting to address the need for a work method statement. This was followed by a conversation between Mr Suter and Mr Bowman, the Hansen Yuncken site manager, who told him that Pro Finish had to get its work method statement in order and fix up its workers' compensation. 15 In the early afternoon Mr Suter met with his employer, Mr Repas. Mr Suter suggested that he, Mr Suter, should meet Mr Lane so that Pro Finish could establish a proper working relationship with the union. The conversation suggested that Pro Finish was in the process of expanding its business and Mr Suter saw the need to negotiate arrangements for that emerging situation. He signalled to Mr Repas that if Pro Finish negotiated an Enterprise Bargaining Agreement (EBA), it would avoid union trouble. 16 Later, Mr Repas and Mr Suter met Mr McEwan and Mr Bowman on site. A wide range of issues was discussed. Mr McEwan said that Mr Lane wanted the site to be a union site and they also discussed superannuation, the need for a work method statement, an EBA, workers' compensation and contract value. His Honour then outlined the immediate background to the meeting between Mr Suter and Mr Lane at [207]: In relation to an EBA with the Union, discussion took place about contacting the Union. Mr Suter agreed to go and meet with Mick Lane in the Union office to talk about the problems of Pro Finish Interiors, the problems of an EBA and the Union's views on Pro Finish Interiors as a company with a view to trying to bring the Union and Pro Finish Interiors together to come up with an agreement to settle the problems. 17 Mr Suter rang Mr Lane and arranged the meeting which he said to Mr Lane was for the purpose of discussing an EBA. 18 Before considering the detail of what occurred at the meeting, his Honour made a general assessment of the value of Mr Suter's evidence. He said at [214]: … I am satisfied that Mr Suter had no particular axe to grind. I consider that his account of the relevant events as set out in the record of interview has a ring of truth about it. … I am satisfied that the account which he then gave was reliable, subject to the possible criticism that in his account of conversations with Mr Lane he might have thrown in a few more expletives than were in fact used by Mr Lane at the time. Having said that, I would adopt without reservation Mr Suter's 11 March 2004 account of his 17 February conversation with Mr Lane in preference to any account proffered by Mr Lane, to the extent to which they were at variance with one another. 19 His Honour's description of the two hour meeting demonstrates that Mr Lane was volatile at some times, and more subdued at others. Mr Suter started by saying that he wanted to talk about some terms so that Pro Finish could get on with some jobs in the area. This was followed by a tirade of abuse by Mr Lane directed at Pro Finish said to arise from numerous complaints which he had received about Pro Finish. His Honour then said at [215]: Accordingto Mr Suter, whose evidence I accept, Mr Lane 'finally settled down' as the meeting progressed. … 20 The discussion moved to the sort of EBA which Mr Lane said 'we'd like to reach with you'. Then, they discussed a particular problem at a site in Penrith. Mr Lane returned to the issue of the EBA and gave Mr Suter an explanation for the need for it, namely, so that 'everybody's got to be on a level playing field so everybody competes'. 21 His Honour then referred to a discussion about union membership fees. Mr Lane complained that Mr Repas had misled him by telling him that Pro Finish workers would not touch the union, when, on checking, Mr Lane found that half of the employees were members. In response, Mr Suter said that Pro Finish had no problem with the plasterers working for it being members of the union. Mr Lane expressed exasperation at the unfairness of sole traders reaping the benefits of union conditions without joining the organisation. In a passage central to the appeal on this question his Honour said: 226 During the course of the meeting further conversation took place as follows: Lane: 'Why the fuckin' hell, should I let fuckin' sole traders on my site. … I've got fuckin' 50 blokes and they're all fuckin' members of the union. And you cunts come in, you're not a member of the union. … You're getting all the fuckin' entitlements the union's got ya and you won't even pay your fuckin' dues. … That fuckin' site is going to be a union site. I'm going to fuckin' have that site, I'm going to and that's going to be a fuckin' union site. … And I want fuckin' EBA workers only there.'

227 When cross-examined about the last mentioned passage from the conversation, Mr Suter gave the following evidence: Q. '… I suggest to you he never said words, that fucking site is going to be a union site?' A. 'In his throwing his hands around, yes, he did say that to us, I'm sure Spiro was there when he said that.' Q. 'And he never said, I'm going to fucking have that site?' A. 'He said he's f-ing having that site, I recall him saying he was going to have the site. I seem to recall that he was going to make it a union site but not have that f-ing site.' Q. 'Can I suggest that he never said, that's going to be a fucking union site?' A. 'He said that he wanted to make it a union site, I don't recollect, I recall him saying he wanted to make it a union site, I definitely recall him saying that while the meeting was on.' Q. 'And he never said, I want fucking EBA workers only there?' A. 'I don't have any recollection of him saying that, Mr Pearce.' [emphasis added] 22 Mr Lane then received a call from Mr Casper, the third respondent and an employee on the Fairy Meadow site about the possibility that Pro Finish workers were to work on another site on the following day. This inflamed Mr Lane. Mr Suter was able to explain the situation. His Honour recorded at [234]: Mr Suter's impression was that at this stage, Mr Lane started to back off a little bit. 23 There was further discussion about a possible EBA with Pro Finish. Later in his reasons at [296(p)] his Honour concluded generally that: It seems to me that at the meeting, the door was opened for further discussions in relation to an EBA which was more likely than not addressed at a further meeting between Messrs Repas and Suter from Pro Finish Interiors and Mr Lane on Friday 20 February 2004, when the draft EBA referred to at [218] was printed off. … 24 His Honour then dealt with the remaining issue arising from the meeting, namely, whether Mr Lane made threats of industrial action to Mr Suter in the event that Pro Finish did not enter into an EBA. 25 Against this treatment by the primary judge of the circumstances in which Mr Lane's comments were made, it is necessary to bear in mind the role of this Court sitting on appeal.

The role of the appellate court 26 Notwithstanding the significant challenges it faces, the role of the appellate court remains that of real review, a function which was explained by Gleeson CJ, Gummow and Kirby JJ in Fox v Percy (2003) 214 CLR 118; [2003] HCA 22, at [25] thus: Within the constraints marked out by the nature of the appellate process, the appellate court is obliged to conduct a real review of the trial and, in cases where the trial was conducted before a judge sitting alone, of that judge's reasons. Appellate courts are not excused from the task of 'weighing conflicting evidence and drawing [their] own inferences and conclusions, though [they] should always bear in mind that [they have] neither seen nor heard the witnesses, and should make due allowance in this respect'. (Dearman v Dearman (1908) 7 CLR 549 at 564, citing The Glannibanta (1876) 1 PD 283 at 287). In CSR v Della Maddalena (2006) 224 ALR 1, [2006] HCA 1, Kirby J (with whom Gleeson CJ agreed) explained some of the limitations on the appellate role inherent in the nature of the function at [17] as follows: The 'limitations' introduced into the rehearing based on the record of the trial are those necessarily involved in that form of appellate procedure. Such limitations include those occasioned by the resolution of any conflicts at trial about witness credibility based on factors such as the demeanour or impression of witnesses; any disadvantages that may derive from considerations not adequately reflected in the recorded transcript of the trial; and matters arising from the advantages that a primary judge may enjoy in the opportunity to consider, and reflect upon, the entirety of the evidence as it is received at trial and to draw conclusions from the evidence, viewed as a whole. [Footnotes omitted]

Consideration 27 In determining whether a statement is false or misleading, it is necessary to consider the context within which the statement was made: Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191 at 199; Given v Pryor (1979) 24 ALR 442 at 446-447. In this case, as the appellant correctly recognised, the task of the primary judge was to make findings not only as to the particular words used by Mr Lane but also as to the implications to be drawn from those words. 28 As is described earlier in these reasons, the primary judge examined the context in which the statements were made by Mr Lane. This examination involved considering the emotional reactions of the participants at the time of the meetings. His Honour's conclusions on this matter followed in part from his general assessment of the reliability of the evidence of Mr Suter. His Honour's conclusions also flowed from an assessment of the evidence viewed as a whole. He took into account the full industrial situation in which the meeting was held. This involved a consideration of the history of disputation between the parties prior to the meeting, and the interplay of the multiple issues addressed at the meeting. Central to his Honour's conclusion was the impression created by these various factors. Whilst this Court must conduct a real review of the evidence for itself, it must also acknowledge that the primary judge had a particular advantage in assessing the implications to be drawn from the statement made by Mr Lane. 29 The way in which his Honour explained the meeting and its context demonstrates that he found that the few words relied upon by the appellant amounted to a statement by Mr Lane of his aspiration that the Hansen Yuncken site would become a site at which all workers were union members. For this reason the statement was not a representation that workers on the site had an obligation to be union members. 30 The words of the statement support this view. They refer to a state of affairs which Mr Lane hoped would exist in due course. The words do not refer to the existence of a present obligation. It may be that s 298SC would apply to a representation that workers would have an obligation to join a union in the future and it may have been open to his Honour to have interpreted the words in that way. However, that was not the view which his Honour formed of the meaning of the statement in context. 31 The way in which his Honour explained the events and issues reinforces this view. Immediately after setting out the alleged statement, his Honour at [227] extracted a passage from the cross-examination of Mr Suter which included the following question and answer: Q. 'Can I suggest that he never said, that's going to be a fucking union site?' A. 'He said that he wanted to make it a union site, I don't recollect, I recall him saying he wanted to make it a union site, I definitely recall him saying that while the meeting was on.' [emphasis added] 32 His Honour considered the cross-examination against the recorded interview made by Mr Suter in March 2004, only a few weeks after the events in question. His Honour rejected part of the cross-examination in favour of the recorded interview. But he did not reject the answer just referred to. This answer is clearly aspirational and makes clear the aspirational character of the statement found to have been made by Mr Lane at the same time and relied upon by the appellant. 33 Further, his Honour's reference to the evidence of Mr Suter must be seen against the assessment which his Honour made of Mr Suter as a reliable witness with no axe to grind. 34 Finally, throughout the description of the meeting his Honour referred to and drew conclusions about the nature of the interaction between Mr Suter and Mr Lane. He referred to Mr Lane's early outburst, and that Mr Lane then settled down as the meeting progressed. It is clear from the evidence relied upon by his Honour that he regarded Mr Lane as direct and forceful and on matters of concern, volatile and at times unrestrained. To the extent that the meaning of the statement made by Mr Lane was conveyed by the context in which it was said, his Honour had the advantage of hearing the evidence of Mr Lane and Mr Suter and evidence of the entire surrounding circumstances in which the meeting was held. There was an advantage available to the primary judge which flowed from the ability to see the witnesses in the witness box, and also to consider and reflect upon the entirety of the evidence viewed as a whole which is not available to this Court on the hearing of the appeal. 35 Thus, on a proper reading of his reasons, the primary judge concluded that the statement made by Mr Lane was aspirational and did not make a representation about the workers' obligation to join the union. Rather, it expressed an objective which Mr Lane hoped would be achieved in the future. As was the situation in James, many of the cases dealing with representations as to the future are promissory in nature. Thus, the circumstances of James relied upon by the appellant are far removed from this case and the statements of principle referred to earlier in these reasons at [10] cannot easily be applied in the context of an aspirational statement. Properly understood his Honour found that the only implication as to existing fact contained in Mr Lane's statement was that he held a desire concerning union membership on sites in the future. The evidence on which his Honour relied supported this conclusion. His Honour was entitled to come to this view and no appellable error is demonstrated.

Alleged contravention of section 298S(2)(a) by Mr Casper on 18 February2004 36 Section 298S(2)(a) provides: (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 37 In s 298S, 'discriminatory action' in relation to an 'eligible person' are relevantly defined: 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 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. 38 The Statement of Claim alleged: 42 On 18 February 2004 the Third Respondent informed Mr Djukic and Innovation that he did not want the ABN workers on the Lanskey site. 43 In so doing, the Third Respondent advised, encouraged or incited Mr Djukic and Innovation to refuse to make use of or to agree to make use of the services offered by each ABN worker. 44 By section 298V of the Act it is presumed that the Third Respondent advised, encouraged or incited as pleaded in paragraph 43 because each ABN worker was not a member of the First Respondent and/or Second Respondent. 45 The Third Respondent advised, encouraged or incited as pleaded in paragraph 43 because each ABN worker was not a member of the First Respondent and/or Second Respondent. 39 Early in his judgment, the primary judge set out the statutory provisions relevant to the proceeding. He said at [29]: In relation to conduct within Part XA of the Act s 298V provided for a reversal of the onus in respect of establishing matters of intent as follows: '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.' 40 As with the facts of the case generally, the primary judge gave detailed consideration to the events in contention. In general, the primary judge described the conversations which were held and he recorded the different versions of the same conversion before stating his reasons for preferring the evidence of one witness rather than another. In the same way he dealt comprehensively with the events of 18 February 2004, including the conversation between Mr Djukic and Mr Casper. At [268] he said: However, Mr Ned Djukic says, which Mr Casper disputes, that, on the morning of 18 February 2004 Mr Casper telephoned him and asked him to meet him in the car park under the building. Mr Djukic says that he proceeded to the car park where Mr Casper said to him 'I don't want these four people on site. I was abused and swore at.' Mr Djukic understood the reference to 'these four people' to be a reference to 'the four new people that started that day'. I am satisfied that the conversation took place as alleged by Mr Djukic. 41 Then, by way of an assessment of the evidence of the alleged conversation, the primary judge said at [286]: Whilst I accept Mr Djukic's evidence that Mr Casper said to him on 18 February 2004 words to the effect 'I don't want these four people [referring to Mr Norm Philipp, Mr Reinhard Philipp, Mr Anthony Summers and Mr Barry Sindel]on site. I was abused and swore at' and I further accept that Mr Djukic told Mr Boyd on that day 'Skip will not allow us to keep the new four workers on site', nevertheless there is no evidence that Mr Casper had said to Mr Djukic that he did not want Mr Norm Philipp, Mr Reinhard Philipp, Mr Anthony Summers and Mr Barry Sindel on the Fairy Meadow site because they did not want to join the Union. Mr Boyd may well have been so informed by Mr Djukic but there is no evidence to justify a finding that Mr Djukic was so informed by Mr Casper. 42 Later in his reasons, the primary judge summarised his conclusions in relation to each of the alleged contraventions. As to the alleged contravention of s 298S(2)(a) by Mr Casper on 18 February 2004, he said at [295(m)]: … I am not satisfied that Mr Casper said to Mr Djukic words to the effect that he did not want Norm Philipp, Reinhard Philipp, Anthony Summers and Barry Sindel on the Fairy Meadow site because they did not want to join the Union. The evidence simply establishes that Mr Casper said to Mr Djukic words to the effect, 'I don't want these four people [referring to Norm Philipp, Reinhard Philipp, Anthony Summers and Barry Sindel] on site. I was abused and swore at'. Such words do not constitute advice, encouragement or incitement to refuse to make use of or to agree to make use of services offered by the named persons or any of them because such persons or any of them were not members of the first respondent and/or the second respondent. No relevant contravention of s 298S(2)(a) has been established. 43 The appellant contended that the primary judge made two relevant errors in these passages. 44 First, the appellant argued that his Honour interpreted s 298S(2)(a) as requiring that Mr Casper express as the reason for his demand to Mr Djukic that the workers were not members of the Union. This contention is not supported by his Honour's reasons. Rather, his Honour made findings which responded to the way that the case was pleaded and run. The appellant's case under s 298S(2)(a) was a case built on the statement made by Mr Casper on 18 February 2004. His Honour was required to make findings which related to the case which the appellants sought to establish on the evidence. This is just what his Honour did. Far from ignoring the wider context in which the alleged words were spoken, his Honour made findings, not only as to the actual words used, but also as to whether the effect of the words was to establish the allegation made. Thus, the first argument is not made out. 45 Second, it was argued that his Honour failed to apply the reverse onus required by s 298V. The appellant submitted that s 298V applied to s 298S(2)(a) because it was alleged that Mr Casper made the demand because the workers were not members of the Union, that is to say, the demand was made for a prohibited reason. Section 298V applied so that there was a presumption that the demand was made for the alleged prohibited reason. 46 At this point in the argument the appellant's written submission stated: Mr Djukic's evidence at the trial was that Mr Casper advised Mr Djukic to refuse to make use of the services offered by the ABN workers because they swore at him. The appellant submits that the presumption could not be properly rebutted by reliance on that evidence. The justification given by Mr Casper as his reason for requiring the workers to be removed from the site was manifestly weak and unreasonable. … (emphasis added) Put in these terms, the argument seems to amount to no more than an allegation that the primary judge came to a wrong assessment of the weight of the evidence, rather than that he erred by failing to apply s 298V. 47 Dealing first with the argument that his Honour erred by failing to apply s 298V, the reasons given by his Honour do not support the argument. His Honour set out s 298V in his reasons as part of the statutory provisions governing the proceeding. He was obviously aware of the existence and function of the section. In relation to the conversation between Mr Casper and Mr Djukic, the reasons for judgment demonstrate that his Honour was satisfied that the reason for Mr Casper's demand was that the four workers had abused him. His Honour made a positive finding of the reason for the demand based on all of the evidence. Had his Honour anticipated the appellant's argument he may have said: Section 298V requires me to presume that the reason for Mr Casper's demand was that the four workers were not members of the Union. However, having regard to all of the evidence I am satisfied that the reason for the demand was that the four men had abused Mr Casper. Thus, the presumption is rebutted. Although this expanded explanation would have met the appellant's argument, it was not necessary. It was sufficient for his Honour to make the positive finding that the reason for the demand was the conduct of the four workers towards Mr Casper. 48 To the extent that the appellant's argument amounts to taking issue with his Honour's finding of fact, the circumstances provide another example of circumstances in which an appeal court should, whilst not abandoning its proper role, give due regard to the advantage possessed by the trial judge. In relation to the assessment of the reason for Mr Casper's demand, the primary judge had the advantage of surveying the entire evidence of the industrial circumstances in play, and the advantage of seeing the witnesses give evidence. For instance, the credibility of Mr Djukic was relevant to his Honour's finding of the reason for Mr Casper's demand. It would be wrong for this Court to second guess the primary judge where he was in a significantly better position to determine the reason for Mr Casper's demand. 49 The appellant has failed to establish either of these challenges to his Honour's judgment in relation to the alleged contravention of s 298S(2)(a) by Mr Casper on 18 February 2004. Unless the appellant succeeded on those arguments he could not establish that Mr Casper contravened the section as alleged and the appeal should be dismissed in relation to this alleged contravention. I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North.

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

AND: CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION

CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION (NSW BRANCH)

LANDER J 50 I have had the advantage of reading the draft of Buchanan J's reasons for judgment. I agree with his reasons and the orders which he proposes. I certify that the preceding one (1) numbered paragraph is a true copy of the Reasons for Judgment herein of the Honourable Justice Lander.

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

AND: CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION

CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION (NSW BRANCH)

REASONS FOR JUDGMENT BUCHANAN J: 51 This appeal is one of two against a judgment of a judge of this Court in Hadgkiss v Construction, Forestry, Mining and Energy Union (No 3) [2007] FCA 87. In that judgment the primary judge found that each respondent had contravened the provisions of s 298SC(c) of the Workplace Relations Act 1996 (Cth) ('the Act') as in force in January and February 2004. The present appeal is by the applicant at first instance who was an inspector appointed under s 84 of the Act to whom the Employment Advocate (referred to in Part IVA of the Act) had delegated certain powers and functions including the power to make the application. The other appeal was brought by the respondents at first instance (now the respondents to the present appeal) who appealed against certain findings in the judgment and also against penalties imposed and other orders later made by the primary judge (Hadgkiss v Construction, Forestry, Mining and Energy Union (No 4) [2007] FCA 425). Because the present appeal raised the possibility that, if the appellant succeeds on some of its arguments, it may be necessary to remit issues to the primary judge for further attention and as that might possibly affect the penalties imposed, the second appeal was adjourned pending the outcome of the present appeal. 52 For the purpose of the present appeal there was no challenge to the individual factual findings made by the primary judge. Rather the arguments on the appeal concentrated upon contentions by the appellant that, on the facts as found, the primary judge should have concluded that further contraventions of the Act occurred in addition to those found by him. The background facts, the evidence and the specific factual findings are comprehensively set out in the judgment below and it is not necessary to traverse them in great detail. 53 The first respondent (the CFMEU) is a Federal union registered as an organisation under the Act. The second respondent (the State union) is its branch and is registered as a State union in New South Wales. The third respondent was a delegate of the CFMEU and the State union and the fourth respondent was an employed organiser of the CFMEU and the State union. 54 The alleged contraventions upon which the appellant proceeded at first instance were said to have been committed on 19 January 2004 and 17 and 18 February 2004 in relation to work to be performed at a building site at Fairy Meadow in the Illawarra region of New South Wales ('the Fairy Meadow site') and another building site located at the corner of Bank and Harbour Streets in Wollongong ('the Wollongong site'). A building was being constructed at the Fairy Meadow site known as the Northgate Apartments Building. A building was also being constructed at the Wollongong site, known as The Pavilions, City Beach Apartments - Stage 2. Work at both sites required plastering to be carried out. 55 It is sufficient for the purposes of the appeal to understand that Pro Finish Interiors Pty Limited ('Pro Finish') had been contracted to attend to plastering work on the Fairy Meadow site and also was seeking to be engaged on the Wollongong site. Another contractor, Innovation Interiors Pty Limited ('Innovation'), was also contracted to work on the Fairy Meadow site. Pro Finish made arrangements for work at the Fairy Meadow site to be carried out by persons who included Norm Philipp, Reinhard Philipp, Anthony Summers, Barry Sindel and Norman Philipp Jnr. Norm Philipp and Reinhard Philipp each carried on business in partnership with his wife. Mr Summers carried on business in partnership with Hua Ping. In each case the partnership had its own Australian Business Number. The existence of the partnership arrangements has significance for one of the matters argued on the appeal. 56 Norm Philipp, Reinhard Philipp, Barry Sindel and Norman Philipp Jnr each attended for work at the Fairy Meadow site on 19 January 2004 and carried out plastering work on that site. The trial judge found that Mr Casper, the union delegate (and through him both the CFMEU and the State union) made a representation to them that they were each obliged to join the CFMEU and/or the State union and that such representation was false or misleading and a contravention of s 298SC(c) of the Act. 57 Section 298SC provides: 'A person must not make a false or misleading representation about: (a) another person's liability to pay a bargaining services fee; or (b) another person's obligation to enter into an agreement to pay a bargaining services fee; or (c) another person's obligation to join an industrial association.' 58 For the purpose of the present appeal no challenge was made to these findings by the primary judge although there was an issue raised by the second appeal whether it was legally necessary that any such representation be intentionally false and/or intentionally misleading. (The issue was also raised by a third appeal - see Construction, Forestry, Mining and Energy Union v Hadgkiss [2007] FCAFC 197, which was argued immediately after the present appeal. By majority it was there decided that it was not necessary) 59 Pro Finish Interiors was also under consideration for plastering work at the Wollongong site. This was a prospect with which Mr Lane, the organiser, took issue. On Friday, 13 February 2004 Mr Suter, Pro Finish's building site foreman, attended at the Wollongong site with Norm Philipp, Norman Philipp Jnr, Reinhard Philipp, Barry Sindel and Anthony Summers. They were all given a site induction. 60 On Monday, 16 February 2004 Mr Suter returned again to the Wollongong site with, amongst others, each of the five plasterers who attended the previous Friday. However Pro Finish did not yet have any formal contract to carry out work at the Wollongong site and although some preparatory work was done on that day, none of the Pro Finish workers returned to the Wollongong site on Tuesday, 17 February 2004. Norm Philipp, Reinhard Philipp, Anthony Summers and Barry Sindel (and others) attended again at the Fairy Meadows site on Wednesday, 18 February 2004, this time to carry out plastering work for Innovation which also had a contract to perform work at the Fairy Meadow site. 61 The primary judge found that on 18 February 2004 Mr Lane visited the Fairy Meadow site in the afternoon. The primary judge found that during this visit Mr Lane made a representation to Norm Philipp and Reinhard Philipp that each was obliged to join the CFMEU and/or the State union in order to continue working on the Fairy Meadow site or to work on the Wollongong site or any other site in Wollongong. He found that the representation was false or misleading and that it contravened s 298SC(c). As a result a contravention was also established by the CFMEU and the State union. These findings were not challenged for the purpose of the present appeal. 62 The primary judge further found that during his visit to the Fairy Meadow site on 18 February 2004 Mr Lane made a representation to Anthony Summers to the effect that he was obliged to join the CFMEU and/or the State union in order to continue working on the Fairy Meadow site or to work on the Wollongong site, that such representation was false or misleading and that it contravened s 298SC(c). The contravention was attributed also, as a result, to the CFMEU and the State union. Those findings were also not put in issue for the purpose of the present appeal. 63 As a result of the findings to which I have already referred the primary judge found that contraventions of s 298SC(c) were established arising from the statements made by Mr Casper on 19 January 2004 and Mr Lane on 18 January 2004. It was these contraventions which provided the foundation for the relief granted in the later judgment. There were further allegations of contravention but the primary judge did not find them to be established. 64 The primary judge found that Mr Lane, the union organiser, said to Mr Suter on 17 February 2004, at a meeting in the CFMEU office in Wollongong, that the Wollongong site was 'going to be a union site'. This statement was found not to constitute a contravention of s 298SC(c) because it did not accord with the allegations contained in the Statement of Claim. That conclusion was challenged on the appeal. 65 Another allegation was that on 18 February 2004 Mr Casper (and therefore the CFMEU and the State union) contravened s 298S(2)(a) of the Act by advising, encouraging or inciting Mr Nenad Djukic (a director of Innovation) and Innovation not to use the services offered by Norm Philipp, Reinhard Philipp, Anthony Summers, Norman Philipp Jnr or Barry Sindel because none was a member of the CFMEU or the State union. For various reasons, most but not all of which are challenged by the appeal, this contention was rejected. First, in the case of Norm Philipp, Reinhard Philipp and Anthony Summers the allegation was rejected at the outset because the primary judge found that it was the firms of which they were each partners which had offered services rather than the individuals. The legal analysis which sustains this finding was put in issue on the appeal. 66 Secondly, the primary judge found that the allegation was not made out with respect to Norman Philipp Jnr because he did not relevantly offer services to Innovation on or after 18 February 2004. This finding was not put in issue. 67 So far as Mr Barry Sindel was concerned (and if necessary Norm Philipp, Reinhard Philipp and Anthony Summers) the primary judge found that the conversation relied upon did not, in any event, sufficiently establish a contravention of s 298S(2)(a). In this respect, the appellant argued that the primary judge did not, as he was obliged to do, give attention to s 298V of the Act. If this ground is upheld it was submitted the issue should be remitted to the primary judge for further attention. 68 Finally the primary judge rejected, as not made out on the evidence, an allegation that Mr Lane (and through him the CFMEU and the State union) breached s 170NC(1) of the Act in a conversation on 17 February 2004 with Mr Suter in that he threatened to take industrial action or other action against Pro Finish with intent to coerce Pro Finish to agree to the making of an enterprise bargaining agreement ('EBA') with the Federal union. This finding was also challenged on the appeal. 69 In summary, the matters raised by the appeal were further allegations of breach of s 298SC(c) arising from Mr Lane's statements to Mr Suter on 17 February 2004, breaches of s 298S(2)(a) arising from Mr Casper's statements to Mr Djukic on 18 February 2004 and breaches of s 170NC arising from Mr Lane's statements to Mr Suter on 17 February 2004 about an EBA.

Further suggested breaches of s 298SC(c) 70 In the Statement of Claim, at para 8, Norm Philipp, Reinhard Philipp, Anthony Summers, Barry Sindel and Norman Philipp Jnr were identified as 'the ABN workers'. Paragraphs 20 - 23 stated: '20 On 17 February 2004 the Fourth Respondent informed Mr Suter that each ABN worker (except for Norman Philipp Junior) would not work on the Lanskey site or the HY site or any other site in Wollongong unless each was a member of or joined the First Respondent and/or Second Respondent. 24 In so doing the Fourth Respondent represented that each ABN worker (except for Norman Phillip [sic] Junior) was obliged to join the First Respondent and/or Second Respondent in order to work on the Lanskey site, the HY Site and any other site in the Wollongong area. 25 The fact is that it was not necessary and each ABN worker (except for Norman Phillip [sic] Junior) was not obliged to join the First Respondent and/or Second Respondent to work on the Lanskey site, the HY site or any other site in the Wollongong area. 26 The representation pleaded in paragraph 21 was false and misleading.' (emphasis added) (The "Lanskey site" is the Fairy Meadow site and the "HY site" is the Wollongong site.) 71 Paragraphs 33, 34 and 36 of the Statement of Claim pleaded, relevantly: '33 Each representation pleaded in paragraphs 21, 25 and 29 was an action done by the Fourth Respondent as an officer or agent of the First and/or Second Respondent acting in that capacity. 34 By the matters pleaded in paragraphs: … (b) 20-23 and 33; … the First and/or Second Respondent contravened section 298SC(c) of the Act. … 36 By the matters pleaded in paragraphs: (a) 20 - 23; … the Fourth Respondent contravened section 298SC(c) of the Act.' 72 The trial judge found that at a meeting between Mr Lane and Mr Suter at the CFMEU office in Wollongong on the afternoon of 17 February 2004 'Mr Lane said to Mr Suter… that the Wollongong site was "going to be a union site", meaning thereby, one at which you couldn't work if you didn't have a Union membership ticket'. However, the trial judge also found: 'No mention was relevantly made of the Fairy Meadow site or "any other site in the Wollongong area", nor was there any representation made to the effect that the Wollongong site was a Union site, with the consequence that, in order to work at such site, the relevant workers were obliged to join the first respondent and/or the second respondent.' (emphasis in original) 73 Based on these findings the alleged contraventions were found not to be established. There appear to be two elements to the trial judge's rejection of the pleaded contravention. The first is that the representation he found was made did not sufficiently accord with the representation alleged in the pleadings. The second appears to be that there was no false or misleading representation that the Wollongong site was at that time a union site - rather Mr Lane had announced a future intention or objective. At least this is, as I understand it, how the respondent to the appeal sought to support the primary judge's finding in this respect. 74 I am not, with respect, able to share the primary judge's conclusions (based on the facts found) about either of these issues. In my view the matters found by his Honour fell comfortably within the scope of the allegations pleaded. The representation which was found by the primary judge to have been made, and which I earlier set out, was both false and misleading - namely that persons could not work at the Wollongong site if they did not have a union membership ticket. I do not think the fact that the full terms of the representation as pleaded were not ultimately established by the evidence diminished the consequence that the evidence nevertheless established a contravention within the ambit of the pleaded case. 75 Nor do I think that the representation was any less a contravention of s 298SC(c) because Mr Lane expressed himself in terms of his objectives rather than in terms of a present factual position. The allegations pleaded in the Statement of Claim did not depend upon a suggested representation that the Wollongong site was a union site as at 17 February 2004 but upon the alleged representation that it was necessary to be a union member to work there. 76 In the circumstances, in my view, this ground of appeal is made out and his Honour should have concluded that a contravention of s 298SC(c) of the Act by Mr Lane, the CFMEU and the State union was established with respect to the statement by Mr Lane to Mr Suter on 17 February 2004 as found by his Honour.

Section 298S(2)(a) 77 Section 298S provides (so far as here relevant): '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. (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; …' 78 The Statement of Claim pleaded (in paras 42 - 44): '42 On 18 February 2004 the Third Respondent informed Mr Djukic and Innovation that he did not want the ABN workers on the Lanskey site. 43 In so doing, the Third Respondent advised, encouraged or incited Mr Djukic and Innovation to refuse to make use of or to agree to make use of the services offered by each ABN worker. 44 By section 298V of the Act it is presumed that the Third Respondent advised, encouraged or incited as pleaded in paragraph 43 because each ABN worker was not a member of the First Respondent and/or Second Respondent.' 79 There was no issue that each of the persons to whom the allegation of a breach of s 298S(2)(c) related was eligible to join the CFMEU and the State union if an employee. The CFMEU and the State union were each an 'industrial association' (s 298B). 80 The trial judge found, as a matter of fact, that Norman Philipp Jnr, did not offer his services at the Fairy Meadow site on 18 February 2004 or thereafter, and had finished work at the site in January 2004. That finding was not challenged on the appeal. The appeal concerned the other ABN workers referred to earlier who were identified at para 8 of the Statement of Claim. 81 The first issue which arises with respect to this aspect of the appeal is whether his Honour was correct to conclude that the services of Norm Philipp, Reinhard Philipp and Anthony Summers were not services offered within the meaning of s 298S(2)(a) because they were services offered by the partnerships of which each was a principal. It may be accepted that the partnerships were legitimately in business and, as the primary judge found, it was with the partnerships that any relevant contract was made and by the partnerships that invoices were rendered to the contractors which engaged them. Upon this view of the matter it was the partnership which offered the services of each of the three plasterers. However, in my view, those circumstances did not have the legal significance attributed by the primary judge. 82 The respondents to the appeal, in support of his Honour's approach, relied upon the judgment of Wilcox J in PG & LJ Smith Plant Hire Pty Ltd v Lanskey Constructions Pty Ltd [2004] FCA 1618; 137 IR 98 at [85] - [86]. Wilcox J concluded that the term 'eligible person' in s 298S(1), was confined to a natural person having the capacity to join an industrial association and did not include a company. He found further that the definition of 'discriminatory action' concerned the contractual relationship between a discriminator and discriminatee. There is no reason to doubt the correctness of this analysis but it did not apply to the circumstances found. A partnership is not a legal entity separate from its partners. On the contrary, a contract made with a partnership is made with each of the partners. I can see no reason why one partner could not, for the purpose of s 298S, be an eligible person to whom the section might apply. Action to discriminate against such a person or encourage or incite someone not to use the services offered by the partnership (including by the individual partner) falls, it seems to me, within the statutory prohibition. On this footing I would uphold this aspect of the appeal. 83 Attention is next required to the other aspect of this part of the appeal, namely that the trial judge did not apply the provisions of s 298V to his evaluation of the allegation, so far as it concerned Norm Philipp, Reinhard Philipp, Anthony Summers and Barry Sindel. 84 Section 298V provides: '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.' 85 Section 298V and a number of other provisions were referred to early in the judgment when the trial judge set out the statutory context raised by the allegations as pleaded. However, when the primary judge made his factual findings and turned to an evaluation of whether they established a contravention of s 298S no reference was made to s 298V or, less directly, to the onus which fell upon the respondents to prove that the presumed intent was not, in fact, present. 86 The primary judge's examination of this issue ultimately turned exclusively, it would appear to me, upon his evaluation of the statement made by Mr Casper to Mr Djukic. His conclusions were stated in the following way: 'The evidence simply establishes that Mr Casper said to Mr Djukic words to the effect, "I don't want these four people [referring to Norm Philipp, Reinhard Philipp, Anthony Summers and Barry Sindel] on site. I was abused and swore at'. Such words do not constitute advice, encouragement or incitement to refuse to make use of or to agree to make use of services offered by the named persons or any of them because such persons or any of them were not members of the first respondent and/or the second respondent.' (emphasis added) 87 On one view of this finding the words used were found not to be ones of advice, encouragement or incitement and no occasion arose, therefore, to consider why they were said, or presumed to have been said. However, I do not think the finding can be dissected in this way. It seems to me to be a composite conclusion in which evaluation of motivation or intent was an integral part. 88 With respect, it seems to me that at this point in his evaluation the trial judge did not consider the application of s 298V, no doubt through oversight at the end of a long and comprehensive judgment. 89 In the circumstances I would uphold the appeal on this point but remit the issue to the trial judge, as requested by the appellant, for his further consideration of whether, having regard to the operation of s 298V, the respondents proved that the intent presumed by s 298V was not present and whether in the light of that further consideration the alleged contravention was established so far as it concerned the 'ABN workers' other than Norman Philipp Jnr.

Alleged Contravention of s 170NC 90 Section 170NC (so far as here relevant) provides: '(1) A person must not: (a) take or threaten to take any industrial action or other action; … with intent to coerce another person to agree, or not to agree, to: (c) making … an agreement under Division 2 or 3 …' 91 In the Statement of Claim it was alleged that Mr Lane had made statements to Mr Suter to the effect that, if Pro Finish did not make an EBA (under Division 2 or 3 of the Act) with the CFMEU and/or the State union, action would be taken against it, the effect of which would be that Pro Finish could not work on construction sites in Wollongong and also that he would take other action, namely to report Pro Finish to the Australian Taxation Office and arrange for lift and crane drivers to refuse to take equipment to workers engaged by Pro Finish. These statements were alleged to have been made at the meeting between Mr Lane and Mr Suter on 17 February 2004. 92 The evidence in support of this allegation was drawn in part from statements made by Mr Suter to investigators and in part from evidence given by him under cross-examination. During his discussion of Mr Suter's evidence his Honour mentioned Mr Suter's lack of direct recollection, as he gave evidence, of what Mr Lane had said on 17 February 2004. His Honour was satisfied that 'greater reliance should be placed upon Mr Suter's recollection of events as recorded in his interview with Mr Alfred and Ms Siciliano on 11 March 2004 when the matters were, relatively speaking, fresh in his mind'. So far as the record of that interview was concerned, in relation to the conversation on 17 February 2004, in addition to purporting to quote Mr Lane's direct speech Mr Suter drew conclusions. His Honour recorded one such passage as follows: 'Mr Suter included the observations as to what Mr Lane said he could do in relation to the Wollongong site in his record of interview in response to an invitation by Mr Alfred to respond to the question, "So there was no discussion about interrupting that site …?" The response provided by Mr Suter included an observation by him as follows: "That was the threats he [Mr Lane] made … that if we went on there [the Wollongong site] and we didn't comply, that that's what was going to happen. The alley mack … wouldn't take our gear up and I've seen that sort of thing go on before with companies we've been working from (sic). You know, they'll just drive straight past you. … Hansen and Yuncken … assured me at a later meeting that no, that wouldn't have happened."' 93 Mr Suter's impressions, and his use of words like 'threats' and 'comply' could not be (and were not) substituted by his Honour for the necessity to make findings on the evidence about the allegation under consideration. His Honour's conclusions about the effect of the conversation (on this issue) were expressed as follows: '240 I am satisfied that at the meeting at the CFMEU office between Mr Suter and Mr Lane on the afternoon of 17 February 2004, Mr Lane indicated a desire on the part of the Union that Pro Finish Interiors should enter into an enterprise bargaining agreement with it. I am also satisfied, as Mr Suter said, that Mr Lane implied "very, very strongly" that if Pro Finish Interiors didn't have an enterprise bargaining agreement with the Union, it couldn't work on the Wollongong site. However Mr Lane did not say so. 241 I am further satisfied that Mr Lane explained to Mr Suter what he "could" do if pro Finish Interiors did not "comply" with the Union's demands. However, I could not, on the evidence before me, read into Mr Suter's use of the word "comply" a threat by Mr Lane directed to Pro Finish Interiors were it to fail to enter into an enterprise bargaining agreement with the Union.' 94 It was suggested that Mr Lane had made concessions in his cross-examination. It is not necessary to rehearse the matters examined by his Honour in that respect. His Honour was not satisfied that Mr Lane had in fact made relevant concessions as argued. Nor was his Honour satisfied that the conversation on 17 February 2004 had reached a point where he could satisfactorily conclude that a definite position had been taken by Mr Lane about the question of a possible EBA. His Honour referred to the apparent contemplation of further discussions, which he concluded probably occurred on 20 February 2004. His Honour's final conclusion about the matter was expressed as follows: 'Given the findings made by me at [240] - [241], no relevant contravention of s 170NC(1) of the Act, on the part of Mr Lane, has been established.' 95 On the appeal it was argued that the conclusion that Mr Lane had conveyed a 'very, very' strong implication was sufficient to meet the requirements of s 170NC. It may be accepted that express words are not always necessary to constitute a threat of the kind of which the section speaks. However, with respect, the argument does not seem to me to give sufficient weight to his Honour's assessment of the whole of the evidence. There were other elements also to be satisfied. It is now well established that a provision of this kind in the Act should be construed as involving an intention to effectively negate choice. The primary judge had the undoubted advantage of seeing and hearing both Mr Lane and Mr Suter give their evidence. He was able to assess that evidence in the context of the whole of the evidence given at the trial and, in particular, in the context of the dynamic between the two men in their conversations as it was revealed by the evidence in its entirety. I do not consider that we, sitting on appeal, at a position even more remote from the events in question than the trial judge, should substitute for his careful findings an impression which, in the circumstances, could be no more than superficial. 96 In my view this ground of appeal was not made out.

Conclusion 97 As will have been seen I would uphold certain, but not all, elements of the appeal. So far as the first contention discussed is concerned, had that matter been the only ground upon which the appellant succeeded I would not regard it as necessary to remit to the trial judge the question of whether any additional penalty should be imposed. That is a matter which could as easily be dealt with by the appeal bench after hearing the other appeal which raised issues about the penalties imposed by the primary judge. However, the operation of s 298V, as discussed earlier, involves different considerations. In my view it is necessary for the case to be remitted to the primary judge so that he may consider the application of s 298V in the light of all the evidence and his other findings. It would be undesirable for the appeal bench to attempt this exercise itself as the findings to be made are ones which should be integrated within the overall findings made at the trial. 98 As, in my view, this aspect should be remitted to the primary judge it is appropriate that his Honour be asked to consider also the question of what, if any, additional penalty should apply in respect of those matters where, on appeal, it has been concluded that further contraventions of the Act occurred in addition to those found by his Honour. 99 In the circumstances I would uphold the appeal in part and remit the matter to the primary judge to be dealt with further in accordance with these reasons. The orders I would make are: 1. The appeal is allowed in part. 2. The following additional declarations are made as part of Order 1 made on 26 March 2007: (j) By making a representation on 17 February 2004 that in order to work on the Wollongong site each of Norm Philipp, Reinhard Philipp, Anthony Summers and Barry Sindel was obliged to join the First Respondent and/or the Second Respondent, the Fourth Respondent contravened s 298SC(c) of the Act. (k) By the action of the Fourth Respondent referred to in (j) above the First Respondent contravened s 298SC(c) of the Act. (l) By the action of the Fourth Respondent referred to in (j) above the Second Respondent contravened s 298SC(2) of the Act. 3. The matter is remitted to the trial judge for further consideration in accordance with these reasons as to: (i) whether on 18 February 2004 the Third Respondent (and by his actions the First and Second respondents), within the meaning of s 298S(2)(a), advised, encouraged or incited Nenad Djukic to take discriminatory action against each of Norm Philipp, Reinhard Philipp, Anthony Summers and Barry Sindel because each was not a member of an industrial association; (ii) what, if any, penalties should be imposed on the first, second, third or fourth respondents as a result of, or arising out of, Orders 2 and 3(i) hereof. 4. The appeal is otherwise dismissed.

I certify that the preceding forty- nine (49) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Buchanan.

Counsel for the Appellant: J J E Fernon SC, M S White

Solicitor for the Respondent: Taylor & Scott Lawyers