Hadgkiss v Sunland Constructions Pty Ltd

REASONS FOR JUDGMENT 1 The applicant is a delegate of the Employment Advocate appointed under Part IVA of the Workplace Relations Act 1996 (Cth) ('the WRA'). He brings these proceedings against the third, fourth and fifth respondents alleging that Mr Oskam made false and misleading statements to three employees of the first respondent ('Sunland') concerning their obligation to join the third and fourth respondents as members, in contravention of s 298SC of Part XA of the WRA. It is alleged that Mr Oskam did so on behalf of the third and fourth respondents (the 'CFMEU' and the 'CFMEU Qld' respectively) in some representative capacity. The applicant seeks declarations as to the contraventions, the imposition of pecuniary penalties and orders compensating the employees for the sums they have paid by way of membership fees. 2 The conduct in question in these proceedings occurred prior to the coming into effect of the Workplace Relations Amendment (Work Choices) Act 2005 (Cth). These proceedings were brought under s 298T of Part XA of the WRA prior to those amendments and it is not disputed that the application falls to be determined under the Act as it then was (and see Regulations 2.19 and 4.53 of Chapter 7 of the Workplace Relations Regulations 2006 (Cth)). 3 One of the principal objects of the WRA is to ensure freedom of association, including the rights of employees to join or not to join an organisation or association. Part XA of the WRA is concerned with that freedom and s 298A(a) states that an additional object of the Part is to ensure that employees are free to join industrial associations of their choice or not to join industrial associations. Section 298C, in Div 2, provides that Part XA applies only to the extent provided in that Division. Section 298D is entitled 'Organisations' and provides that the 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.' 4 Sections 298E and 298F apply the Part to conduct carried out with a purpose or intent relating to a person's participation or non-participation in industrial action and other activities. Section 298G provides that the Part applies to conduct by a constitutional corporation and conduct that adversely affects a constitutional corporation. A 'constitutional corporation' is defined by s 4 to include financial and trading corporations within par 51(xx) of the Constitution. 5 Section 298SC provides in relevant part that: 'A person must not make a false or misleading representation about: … (c) another person's obligation to join an industrial association.' 6 Applications may be made to the Court for orders under s 298U in respect of conduct in contravention of Part XA: Div 6, s 298T. Section 298U relevantly provides that the Court may make orders imposing a penalty upon a person or industrial association (par (a)); or an order requiring the payment of compensation to an employee (par (c)). 7 Each of the CFMEU and CFMEU (Qld) (which I shall also refer to as 'the unions') are bodies corporate and 'industrial associations' as defined by s 298B(1), that which definition includes an association of employees that is registered or recognised as an association under industrial law and which has, as a principal purpose, the protection and promotion of employees' interests in their employment. Industrial associations may also be an 'organisation'. The CFMEU is an 'organisation' registered under the Registration and Accountability of Organisations Schedule to the Act and therefore comes within the definition of an 'organisation' in s 4(1) of the Act. The CFMEU (Qld) is an organisation registered under the Industrial Relations Act 1999 (Qld), but such an organisation is not included in the definition of 'organisation' for the purposes of the WRA. 8 Section 298SC is alleged by the applicant to have been contravened by the making of representations by Mr Oskam to each of the three employees: Robert Holz, Cameron Dann and Dean Angus, in September 2004. It is alleged that the following statements were made by Mr Oskam: '6.2.1 Oskam said: 'The three of you have to join the union.' 6.2.2 Dann asked: 'Do I have to be in the union?' 6.2.3 Oskam said: 'Yes you do.' 6.2.4 Holz said: 'I don't want to join the union.' 6.2.5 Dann said: 'I don't want to join either.' 6.2.6 Oskam said: 'If you don't [join the union], you will either get sacked, or all the other blokes in the workshop will go on strike.' 6.2.7 Oskam said: 'You have to join [the union]. There is no way you can work here without being in the union.'' 9 A contravention of s 298SC is not an offence to which the criminal standard of proof applies. The civil standard of proof applies and the Court must be satisfied that a case has been proved on the balance of probabilities. Section 140(2) of the Evidence Act 1995 (Cth) provides: '(2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account: (a) the nature of the cause of action or defence; and (b) the nature of the subject-matter of the proceeding; and (c) the gravity of the matters alleged.' 10 And in Briginshaw v Briginshaw (1938) 60 CLR 336 (at 362) Dixon J said that: 'The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences following from a particular finding are considerations which must affect the answer to the question whether the issue has been proved.' 11 The strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove: Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 at 170-171; 110 ALR 449 at 449-450 and see Employment Advocate v Williamson (2001) 111 FCR 20; [2001] FCA 1164 at [42]. As their Honours pointed out in Neat Holdings 67 ALJR 170, statements that clear, cogent or strict proof is required in cases such as fraud are not directed to the standard of proof. They reflect a conventional perception that people do not ordinarily engage in fraudulent or criminal conduct and a court should not lightly make a finding to that effect in civil litigation. In Employment Advocate 111 FCR 20, that approach was applied to proceedings under Part XA of the WRA. The view was there expressed that it is not common in Australian society for people to engage in conduct proscribed by legislation. An allegation that someone has done so is ordinarily a grave allegation, particularly where it might lead to a significant penalty (Branson J at [67], Kenny J agreeing). 12 Mr Holz commenced work with Sunland on about 19 July 2004. He was responsible for Mr Dann and Mr Angus joining the company shortly afterwards. He is the senior of the three and appears to have some measure of influence with them. He said that on about 8 September 2004 the three of them were working at the spray booth of the factory when they were approached by a person called 'Dan'. It is not disputed that this was Mr Oskam. Mr Oskam also worked at the factory and Mr Holz knew that he was a union representative. Mr Holz says that Mr Oskam brought over some forms and put them on a work bench in the spray booth area. The forms contained an application to join each of the CFMEU and CFMEU (Qld). He says the following exchange occurred: 'Dan said, 'The three of you have to join the union'. I said, 'I don't want to'. Cameron said, 'Do I have to be in the union?' Dan said, 'Yes, you do.' I said, 'I don't want to be in the union'. Cameron said, 'I don't want to join either'. Dan said, 'If you don't, you'll either get sacked or all the other blokes in the workshop will go on strike'. Dan then said, 'It's only $200 a year and it comes out of your pay'.' 13 He then says in his evidence: 'I can recall Cameron repeating that he didn't want to be in the union. The conversation ended with the following exchange: I said, 'I don't want to be in the union; I've never been in the union'. He said, 'You have to join. [Everyone will go on strike and you'll shut the whole place down]. There is no way you can work here without being in the union'.' (Parenthesis added). This account is taken from Mr Holz's affidavit sworn on 25 May 2006. He agreed in cross-examination that that part in parenthesis did not appear in a statement taken from him in January 2005. That account did however contain words to the effect that 'the workshop will go on strike'. 14 Mr Dann's account, as set in his affidavit of the same date, is in these terms: '[Dan placed a form on a bench at the spray booth and said, 'Here boys have a look at this'. Bob said, 'Do I have to join this shit?' Dan said, 'Yes you have to be in the union. Everyone here is in the union'.] I said, 'Do I have to join the union?' Dan said, 'Yes, otherwise the whole factory will go on strike'. Bob said, 'I don't want to be in it'. Dan said, 'Well you have to be in it'. I said, 'I don't want to be in it either'. Dan said, ['Either you join the union or you will get the sack or the factory will go on strike'.]' Mr Dann agreed that those parts in parenthesis did not appear in his earlier statement. 15 The other employee approached by Mr Oskam on that day, Mr Angus, also gave evidence. In his affidavit he said that he had told Mr Oskam that he didn't want to be in the union and that he recalled Mr Oskam saying words to the effect 'you have to be in the union or else everybody here will go on strike'. I was not persuaded that Mr Angus was entirely reliable as a witness. I do not refer in this regard to his credibility, but rather to his lack of memory of the conversation. Neither Mr Holz nor Mr Dann refer to Mr Angus having made the statement that he didn't want to be in the union; Mr Angus freely concedes that he has no recollection of the conversation. As to the balance of his statement, that a strike might result if they did not join, I would not be inclined to accept his evidence that this was said unless it is corroborated by other, acceptable, evidence. I would also place little or no reliance upon his agreement with the account given by Mr Oskam, to which reference will be shortly made. It seems to me that Mr Angus was an entirely suggestible witness. 16 Mr Oskam had been a union delegate for about two and a half years, although he had received no training in aspects of that role. His account of the conversation was in large part drawn from his usual practice. He said the same thing more or less to any person he was seeking to make a member of the unions namely: 'Look guys, it's a Union shop. We would like you to be in the Union. If you want better wages and conditions it's in your interest.' 17 Mr Oskam's reference to 'the Union' I take to refer to each of the CFMEU and CFMEU (Qld), third and fourth respondents. He says that by the term 'Union shop' he meant that most workers were union members and the employer recognised the union and negotiated EBAs (Enterprise Bargaining Agreements) with the union. He denies that he told the three men that they were required to join the union and he denies that either Mr Holz or Mr Dann said that they didn't want to join the union. He specifically denies that he said they would be sacked or other employees would go on strike if they did not join. 18 It is not disputed that, at the conclusion of the conversation between the three employees and Mr Oskam, the cost of joining the union and the method of payment was discussed. Each of them signed an application to join the CFMEU and CFMEU (Qld). 19 Mr Dann gave some further evidence under cross-examination concerning the application forms which included the membership cards. In his affidavit he had said that they had signed a form entitled 'Authorisation to deduct union dues from wages' and that 'a little later' Mr Oskam came around with the cards for them to sign. Pressed under cross-examination, he said that by the reference to a 'later time' he meant later that day. He then recalled that was because Mr Oskam did not have enough of the cards and had to go and get some more. No other witness' evidence suggests this recent version of events to be correct. 20 At some point each of the three employees authorised the deduction of union dues from their wages. In October 2004 they received statements from the unions requiring payment of union dues. This is said to have led Mr Holz to contact the Building Industry Task Force where he spoke to Mr McGann and subsequently received brochures about union membership and industrial relations. He said that Mr McGann advised him to keep notes about what happened at work, but it may be that the focus of any such advice was upon conversations which had taken place with the second respondent. In any event it is not clear that it was directed towards anything that had occurred with Mr Oskam. 21 Mr Oskam says that about three months after Mr Holz had joined the union he came looking for him and asked 'How do I get out of the union?'. He advised Mr Holz that he would have to write and resign. It appears that Mr Holz contacted a person at the offices of the unions and arranged to have forms for resignation sent out to him. Subsequently he rang that office in Brisbane on 4 November 2004 to obtain a telephone number of the organiser, Mick Booth. He telephoned Mr Booth to discuss resignation. He was asked in cross-examination why he did this when he had already arranged to have a resignation form sent out to him. In particular he was asked whether he was trying to provoke a union official. The conversation must have been a little curious to Mr Booth because at one point he apparently asked Mr Holz if he was taping the conversation. Each of the employees resigned in late October 2004. Each of Mr Holz and Mr Dann had paid the sum of $200 for union fees in this period and Mr Angus the sum of $50. 22 Mr Jenkinson was at this time an investigator of the Task Force. He became involved in the investigation of the incident the subject of the proceedings against the first and second respondents in November 2004. He had a number of conversations with Mr Holz commencing on 3 November 2004. His principal concern, at this early point, appears to have been with the second respondent, for he attended at the office of the first respondent to speak with him on 9 November 2004. He attended with another officer of the Task Force on 12 January 2005 to take statements from Mr Holz and Mr Dann at their workplace. The statements were taken separately by each of the officers and typed as the employee spoke. A printed copy was subsequently provided to Mr Holz who signed it on 17 January 2005. Mr Dann's statement was provided to him and signed on 1 February 2005, when Mr Jenkinson attended upon him and Mr Angus and took the latter's statement. On this occasion a printed copy was able to be provided to Mr Angus upon completion of his statement. 23 On 25 February 2005 Mr Jenkinson took a statement from Mr Oskam at the office of the first respondent in the company of the second respondent. The statement was recorded, with Mr Oskam's consent. After preliminary discussion the following exchange took place: 'WJ You mentioned the fact that this workshop here is a Union shop, do you remember that? DO Yeah WJ Can you just tell me again for the record here what your understanding of a Union shop is? DO Basically, you have to be in a Union to work there. WJ And, who ah DO If you're non-union, you're not labour so everyone joins up and they're all free to join and as soon as the new people start you ask them if they want to join, yes, no worries WJ What if a new starter didn't want to join? DO Well, they should have asked them if they wanted to first WJ Yeah DO But it's up to them I suppose, if they don't want to join, they don't want to join. WJ Would they, given that you think it's, given that you understand it's a Union shop, what would happen to the new started if they didn't want to sign up? DO Ah, basically if you didn't want to sign up you wouldn't be entitled to EBA award rates, anything like that, RDOs, we pay to put those things in place, so if you're not in the Union you're not going to be entitled to any of those, are you? WJ When you say 'we pay' … SL [ui] DO Basically, yeah, if you're not in a Union you're not entitled to EBAs or anything like that, you get the standard pay rate …' 24 An earlier exchange, when Mr Oskam used the term 'Union shop' does not appear to have been transcribed. However on his own account he used the term in his conversation with the three employees. He was not led into using it in the conversation with Mr Jenkinson, as was suggested in submissions. His understanding of the term is perfectly clear, as may be seen by the answer he first gives. He understood that a person had to belong to a union in order to work at the factory. This is how the term would commonly be understood. His later explanations, relating to the benefits which union members receive, do not detract from the clear expression of his understanding nor does the later attempt, in his affidavit filed in these proceedings, to resile, to an extent, from it. He then said: 'I said words to the effect of: - 'Look guys, it is a Union shop. We would like you to be in the Union. If you want better wages and conditions it's in your interest' By the term 'union shop' I meant that most workers were union members and the employer recognised the union and negotiated EBAs with the union. These are standard things I say when recruiting people.' 25 Given Mr Oskam's belief that the factory was a 'Union shop' and his understanding of what that meant, it is not difficult to infer that it was likely he said that the three employees had to become union members in order to work there, even if he did not use the words 'Union shop' on this occasion. I therefore accept Mr Holz's account that Mr Oskam conveyed to them that they were obliged to join and that they could not work there unless they did so. The reference to 'the union' was to each of the CFMEU and CFMEU (Qld) which were identified on the application form. The question which remains is whether he also made statements to the effect that, if they did not join, either they would lose their employment or the other employees at the factory would go on strike. 26 Mr Dann was frank in his concession that he and Mr Holz subsequently discussed the events and the conversations which had taken place on the day in question. It is not however obvious that they did so with any degree of precision prior to their statements being taken in January 2005. Those statements, being close in time and less likely to have been subjected to a process of comparison or further emphasis, as may have occurred with the later affidavits, are more reliable. I place no weight upon the words added to their accounts in their later affidavits. In any event for the most part they repeat what Mr Oskam is alleged to have said would occur if they did not join the union. The respondents also submitted that the accounts should be rejected as unreliable because the witnesses could not now recall when the conversation in question had taken place. I do not consider that follows. 27 Shorn of the later additions, Mr Holz's account contains two predictions alleged to have been made by Mr Oskam: that if they did not join the unions their employment would be terminated or the other employees would strike. 28 The respondents submit that the statement about their employment being terminated could not contravene s 298SC because it cannot be shown to be false. Mr Holz's employment was in fact terminated 'for the reasons that included the reason that Holz was not a member of the third and fourth respondent'. This is a reference to the terms of an admission made by Sunland in the proceedings against it. The respondents seek to adopt it for the purposes of these proceedings. If the admission is relied upon as a statement of fact in these proceedings it might however work against the respondents. It might tend to suggest that that was the understanding which existed between Sunland and the unions at that time. That might, in turn, render more likely the prospect that Mr Oskam, knowing this to be the case, made some statement to the effect that they would lose their positions if they did not become union members. This was not however a matter put to him and I would not draw any such inference for that reason. It would be one bordering upon speculation, without more. That leaves Mr Holz's affidavit as the only source of evidence that the statement was made. The termination of his employment did occur in early December 2004 and he understood it was because of the dealings he and the others had had with the unions and their refusal to remain members of them. This understanding may have affected his later recollection, of what had been said at the time. Mr Oskam said words to the effect that, in order to work there, they had to join the unions. This raises, but leaves unanswered, the question whether something might happen to their employment if they did not. Mr Holz might unconsciously be providing further content to the statement. I would not act upon his evidence where there is no other reliable evidence from another witness. Mr Dann's reference to it was by way of addition to his earlier statement. This tells against the likelihood that he recalled it being said. 29 Despite Mr Oskam's denial, I accept that Mr Holz and Mr Dann each said that they did not wish to be members of the unions. That was the case, as their resignations shortly afterwards confirm. That is why Mr Oskam had to be adamant, pointing out that they had no real choice. They had to join in order to work at Sunland. The question then is whether he is likely to have said more in order to persuade them. I think it likely that he did. Here were three employees who clearly did not want to join a union and did not immediately succumb to the suggestion that they must do so. Each of the three witnesses gave evidence that Mr Oskam said that the other employees would strike if they did not join. I am satisfied that Mr Oskam made such a statement and that it was influential in them joining. 30 The advice to the three employees, that they were obliged to join the unions in order to work at Sunland, was false and misleading. Subject to a submission advanced by the unions, that the section contains a further requirement relating to Mr Oskam's intention, s 298SC(c) has therefore been breached. The further statement about strike action being taken may be said to be 'about' their obligation to join and therefore within the purview of the section. It may be seen as misleading because it connects the prospect of such action with the suggested obligation. If it does not imply that the action is lawful, it is silent about the fact that it is not. 31 It was submitted for the CFMEU and CFMEU (Qld) that an essential element of a contravention of s 298SC is the intention to make a false or misleading representation, relevantly, about a person's obligation to join an industrial association. It was submitted that the appellant must prove that Mr Oskam made the statements deliberately, knowing that union membership was not compulsory, and that the evidence does not permit of such a finding. If that proof were necessary, however, s 298V of the WRA would apply. That section provides, in summary, that if in an application under Div 6 it is alleged that the conduct of a person or an industrial association was or is being carried out for a particular reason or with a particular intent, that reason or intent is presumed unless they prove otherwise. The unions submit that the section cannot apply because the applicant has not expressly pleaded reliance upon it. More to the point, perhaps, is the fact that it did not plead intention as relevant and it was therefore unnecessary to be negatived. As Kenny J pointed out in Australian Workers' Union v BHP Iron-Ore Pty Ltd [2001] 106 FCR 482 at [80], s 298V is only attracted where a specific intention is a separate element of the wrong created by the statute. 32 Section 298D(c) cannot be the source of an element of intention for the purposes of s 298SC. It speaks of a general intention concerning a person's membership of an organisation, which Mr Oskam clearly had. Further, s 298D, and the other sections in Div 2, do not operate to create an additional requirement to sections which proscribe conduct. Sections 298D to 298H are concerned to characterise conduct to which Part XA of the WRA may apply, and to connect it with a head of power. 33 The CFMEU and CFMEU (Qld) submitted that a requirement of proof of intention was to be implied in s 298SC. The words of the section however contain no hint of such a requirement. The unions submit that the nature of the contravention, which involves false and misleading statements, may require it and this was confirmed by a reading of the WRA as a whole or of Part XA. 34 A reference to a statement being false or misleading does not necessarily imply that it was made knowingly so. The cases upon which the unions relied in support of their argument were concerned with s 298M, which contains the element of inducement. An object of Part XA is the maintenance of the freedom of employees to join or not to join industrial associations. Section 298SC(c) sees that freedom as impaired if false or misleading statements are made about the employee's obligation to become a member of the association. It is concerned with the effect upon the employee. So understood, the state of mind of the person making the statement is irrelevant to the question whether the provision has been breached, although it may be relevant to penalty. 35 It is not every statement of the kind referred to in s 298SC which amounts to a contravention of Part XA. The application of the Part is limited in the way provided in Div 2: see s 298C. The conduct in question must be that conduct referred to in ss 298D to 298H, as Cooper J pointed out in Rowe v Transport Workers' Union of Australia (1998) 90 FCR 95 at 100, 106. It is submitted that in the present case Mr Oskam's conduct comes within s 298D(b) and (c), which is to say, the conduct was by him as an officer of an organisation acting in that capacity or it was conduct carried out with a purpose or intent relating to a person's membership or non-membership of an organisation. The latter conduct is said to be referable to the conduct concerning membership of the CFMEU (Qld). It is necessary at this point to consider his position with each of the unions. 36 Mr Oskam refers to himself as a member and 'delegate' of the two unions. What he means by 'delegate' is not gone into. The CFMEU and CFMEU (Qld) do not admit that he was a delegate, but do admit that he was a representative of 'the third and/or fourth respondent' and an 'officer of the third and/or fourth respondent within the meaning of s 298D of the Act'. That section, by par (b), refers to 'an officer of an organisation acting in that capacity'. An officer of an organisation, by s 4, is a person who holds office in the organisation. The CFMEU (Qld) is not an organisation within the meaning of the WRA, as previously mentioned. It is an industrial association. An officer of an industrial association is defined by s 298B(1) to include a delegate or other representative. 37 At this point something needs to be said concerning the admissions made by the unions. They assume some importance in the case. Regrettably the allegations that Mr Oskam was a representative and an officer of an organisation were expressed to be with respect to the CFMEU 'and/or' the CFMEU (Qld). The admission by the CFMEU of those allegations is clear enough. They are directed expressly to it. The effect of the admission by CFMEU (Qld) is less clear. It could not be taken to admit that he was an officer of it as an organisation within the meaning of s 298D(b), for the reasons given. It might be taken to admit that he was its representative, because it goes on to expressly deny that he was also a delegate. So much may in any event be inferred from Mr Oskam's apparent authority. 38 With respect to the CFMEU, Part XA applies because the conduct in question was conduct by an officer of it as an organisation. That does not however conclude the question whether that conduct should be taken as its conduct or that it should be held liable for it. Section 298D, and the other sections in Div 2, are not concerned with what constitutes a contravention or the liability of an organisation or other entity for it. 39 It was submitted for the CFMEU that the common law rules determine the question of its liability and that it is necessary for the applicant to show that either that Mr Oskam was its 'directing mind' (Tesco Supermarkets Ltd v Nattras [1972] AC 153) or, if it is to be held vicariously liable, that he was its agent acting within the scope of his actual or apparent authority. In each case this involves a factual enquiry. For Mr Oskam's authority to be apparent more is required than his holding himself out as authorised, it is submitted. 40 Section 298B(2) and (3) of the WRA provide: '(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: (a) the committee of management of the industrial association; (b) an officer or agent of the industrial association acting in that capacity; (c) a member or group of members of the industrial association acting under the rules of the association; (d) a member of the industrial association, who performs the function of dealing with an employer on behalf of the member and other members of the association, acting in that capacity. (3) Paragraphs (2)(c) and (d) do not apply if: (a) a committee of management of the industrial association; or (b) a person authorised by the committee; or (c) an officer of the industrial association; has taken reasonable steps to prevent the action.' (emphasis added). 41 The CFMEU relies upon statements in Rowe v TWU 90 FCR at 111 and following that this provision does not affect the application of the directing mind principle. That may be so, but Cooper J also explained that the subsection is concerned with the relationship between industrial associations and the individuals, identified in (a) to (d), rather than with a corporation's alter ego, which is the focus of the principle. His Honour said that when the directing mind principle operates, an industrial association will be liable without the need to have recourse to s 298B(2) (and subs (3)). His Honour went on (at 111-112): 'Indeed, the operation of the principle and the two subsections may overlap. The subsections were intended to cover relationships between an industrial association and the persons specified in pars (a) - (d) inclusive who are servants, agents, delegates or representatives of the industrial association rather than its alter ego. The subsections are also intended to remove the necessity to identify where the line is to be drawn between persons acting as the directing mind of the industrial association and those acting in a representative capacity only.' 42 Section 298B(2) operates to extend the category of conduct which is, for the purposes of the WRA, to be treated as conduct of the industrial association. It is not strictly legally its conduct, although it may be conduct for which it is vicariously liable at common law, his Honour observed. The statutory object is to prevent an industrial association doing, or permitting to be done by servants, agents, delegates or representatives that which it is prohibited from doing itself, his Honour explained, and went on (at 113): 'This is achieved by making the conduct of the persons specified in s 298B(2)(a), (b), (c) and (d) the conduct of the industrial association in circumstances where the industrial association may be vicariously liable for such conduct, or the conduct is that of persons having such a relationship with the industrial association that the persons have authority to act on behalf of the industrial association or its members generally and where the industrial association is in a position to prevent or attempt to prevent the conduct occurring by taking reasonable steps as provided in s 298B(3) and failed to do so. Section 298B(2) and (3) are part of the means adopted to control the conduct, and to regulate the affairs, of organisations registered under the Act, and, to control the conduct of industrial associations in respect of the affairs of registered organisations and the affairs of constitutional corporations.' 43 His Honour then dealt with the argument raised, in connexion with the validity of the section, that the Act treats as an incontrovertible fact conduct which is contrary to the true factual situation. It is not necessary to refer in detail to his Honour's ruling on this point. It is sufficient to observe that his Honour held that the argument failed to distinguish between the ascertainment of facts and the legal consequence of the facts as found. 44 The CFMEU and CFMEU (Qld) rely upon that part of his Honour's conclusion, that s 298B(2) may require the ascertainment of facts, in support of a submission that the section requires proof of agency or some other basis for liability as required by the general law. The submission misunderstands the enquiry under the section, which is as to the relationships identified. In some cases this may require an assessment of the kind mentioned, for example where the relationship alleged was that of agent. In the present case however Mr Oskam was an officer of the CFMEU at the relevant time, acting in that capacity within the meaning of s 298D(b), by that organisation's own admission. It is not necessary to enquire further. The consequence of s 298B(2) is that his actions are taken to be those of the CFMEU. 45 It was not part of the applicant's case against the CFMEU (Qld) that the conduct in question fell within s 298D(b) so that Part XA applied. Rather it was contended that in relation to Mr Oskam's conduct, par (c) of that section applied. Section 298D(c) applies the Part to conduct carried out with a purpose or intent relating to a person's membership or non-membership of an organisation. Here the relevant purpose can only be connected to membership of the CFMEU as an organisation, not the CFMEU (Qld). Section 298D(c) may therefore provide another reason why the Part applies to conduct, conduct contravening s 298SC, for which the CFMEU may be liable under s 298B(2)(b). The position of the CFMEU (Qld) is however different. 46 The terms of s 298B(2)(b) expose a difficulty in the applicant's case. The question which arises with respect to Mr Oskam's conduct, so far as it falls within s 298D(c), is whether it was carried out as an officer or agent of the CFMEU (Qld) 'acting in that capacity'. He was clearly its officer. This follows from the extent of its admission and the definition of an officer of an industrial association in s 298B(1). Given his role as a representative of the CFMEU (Qld), to enlist new members, he would also qualify as an agent for that purpose. It could not however be said that, in seeking out members of the CFMEU, he was acting in that capacity on behalf of the CFMEU (Qld). The evidence does not permit such an inference to be drawn and no such assumption could logically be made. The proper characterisation of the conduct here in question is conduct having the purpose or intent of membership of the CFMEU (Qld), an industrial association. That conduct does not come within s 298D(1) and Part XA cannot apply on that basis. 47 The alternative approach adopted by the applicant with respect to the CFMEU (Qld) relies upon s 298G. It provides in relevant part: (1) This Part applies to: … (b) conduct that adversely affects a constitutional corporation. (2) For the purpose of paragraph (1)(b), conduct is taken to affect adversely a constitutional corporation only if: … (b) the person so referred to is an employee of the constitutional corporation …and the conduct affects the person in that capacity.' 48 It is not disputed that Sunland was a constitutional corporation as defined by the WRA. For s 298G to apply it must be shown that Mr Oskam's statements adversely affected Sunland. This can only be established if they affected the three persons, to whom they were made, in their capacity as employees of Sunland. Section 298D(2)(b) looks to an affect on a corporation through conduct directed to its employees. An example of conduct of this kind is provided by s 298Q, which concerns industrial associations acting against employees. It provides, by subsection (1), that an industrial association must not take or threaten to take action which prejudices a person's employment for reasons which include them joining an industrial association or paying a bargaining services fee. 49 The applicant relies upon the statement, or prediction, to the employees that if they did not join, strike action would follow. To this may be added the statement that they could not work for Sunland unless they were members of the unions. The statements have a connexion with their employment but neither can be said to threaten continuation of their employment. Indeed the statement about possible strike action is, on one view, directed to the employer. What both statements are likely to have done is to put pressure upon the three persons. They imply that their position as employees may not be maintainable if they do not join, at least so far as all the other employees, who are members, are concerned. They are faced with a choice as to whether they wish to continue their employment. Their position as employees is therefore affected.