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.