Hamberger v Construction Forestry Mining & Energy Union

background 1 Leighton Constructions Pty Ltd ("Leighton"), were on 4 March 1999 and thereafter including 10 March 1999, contractors engaged in building works at the Museum of Tropical Queensland site at Flinders Street, Townsville, Queensland. 2 Hedley Plumbing Pty Ltd ("Hedley"), in the course of its business as a provider of plumbing and carpentry services, had contracted with Leighton to perform roofing facade cladding and plumbing works at the Museum of Tropical Queensland site. 3 David John Poppi ("Poppi") carried on business as a carpenter, and at all material times he was contracted to Hedley to provide his own carpentry services and to supervise and manage the provision and performance of the roofing and facade operations as the representative of Hedley on site. 4 Ronald Shane Thinee ("Thinee") carried on business as a carpenter, and at all material times contracted with Hedley to provide carpentry services for the performance of the roof cladding and facade work at the site. 5 Ronald Michael Thomas ("Thomas") carried on business as a carpenter and at all material times contracted with Hedley to provide carpentry services for the performance of the roof cladding and facade work at the site. 6 Michael Ravbar ("Ravbar") the second respondent is, and at all material times was, a member of the Construction Forestry Mining and Energy Union ("the CFMEU") and employed by it as a state organiser. 7 David Hanna ("Hanna") is, and at all material times was, a member, employee and officer of the Australian Building Construction Employees and Builders' Labourers' Federation (Queensland Branch) Union of Employees ("the BLF"). He is and was also a member and officer of the CFMEU. 8 The CFMEU is an organisation registered under s 191 of the Workplace Relations Act 1996 (Cth) ("the Act"). 9 The BLF is an industrial organisation of employees registered under the Industrial Organisations Act 1997 (Qld) ("the State Act"). 10 The applicant is the Employment Advocate ("the Advocate"), an office created under s 83BA of the Act. 11 On 4 March 1999, Hanna and Ravbar were on the Museum of Tropical Queensland site. Both of them attended a site meeting of workers who worked on the site at about 10.00 am. After the meeting, at about 10.45 am, Hanna had a conversation with Poppi who had left the meeting when Hanna advised that he would not commence the meeting until management representatives had left. The Advocate alleges that the following conversation occurred : "Hanna: 'Are you and your blokes going to join the union?' Poppi: 'No, I didn't think it was compulsory to join the union. I'm the foreman on site, I didn't think I had to join the union' Hanna: 'If you and your blokes don't join the union by Monday, we will have a meeting and the other workers on site will vote to close down the site and you won't be allowed to work.' Poppi: 'I didn't think it was compulsory to join the union.' Hanna: 'If you and your blokes don't join the union by Monday, we'll have a show of hands to close down the site. You won't be allowed on site.' Poppi: 'Are you saying we can't work?' Hanna: 'No, you just won't be allowed to work on this site.'" 12 At or about 10.30 am, Ravbar had a conversation with Thinee and Thomas. The Advocate alleges that during the conversation the following exchange occurred: "Ravbar: 'Are you two guys working for Hedleys?' Thinee: 'Yes that's right.' Ravbar: 'Are you in the union?' Thinee: 'No we are not.' Ravbar: 'I would like you to join the union.' Thinee: 'We have only four to five days work before we finish our part of the contract. I could be working on houses or anywhere.' Thomas: 'I don't want to join.' Ravbar: 'I've heard all that before but while you're on this site you will have to join the union.' Thinee: 'You will have to see Leighton's about that.' Ravbar 'I will go and see Leightons and I will come back to you. There will be a meeting on Monday and if you haven't joined by then there will be a vote as to whether the workers want you to stay on site or not. You can either sign up now and you won't have to worry about all this.'" 13 At or about 11.00 am on 4 March 1999, Ravbar and Hanna had a conversation with Nathan Geoffrey Harmsworth ("Harmsworth"), the project manager for Leighton on the site. 14 The Advocate alleges that during the conversation the following exchange occurred : "Ravbar: 'There are two blokes from Hedley that aren't union members. They need to be members! You need to go and talk to them.' Harmsworth: 'I can talk to them and ask them to join but I can not make them join'. ..... Ravbar: 'You will need to talk to them and they need to join the union. We're coming back Monday and this needs to be resolved.' Harmsworth: 'We can't make them join the union, it is against the law.'. Ravbar: 'You will need to talk to them!' Harmsworth: 'I will go and have a talk to them but I can't make them join if they don't wish to.' Ravbar: 'I'll be back on Monday and it had better be resolved.'" 15 Later on 4 March 1999 a telephone discussion between Harmsworth and Ravbar occurred. The Advocate alleges that the following conversation occurred: "Harmsworth: 'As far as the two Hedley boys go they are still not prepared to join the union.' Ravbar: 'They have to join' Harmsworth: 'Michael are you telling me I have to force these guys to join the union.' Ravbar: 'You know Nathan they must join, they are a potential safety risk to other workers on the site.' Harmsworth: 'How on earth can they be unsafe.'" And that later in the same conversation : "Hanna: 'Tell him if they don't join we will be putting claims out on other sites.' Ravbar: 'If they don't join I will just have to rip up the statement of intent and all the agreement I have made with Bruce Cull.'" 16 On 5 March 1999, Ravbar left a business card at Harmsworth's office which had written on the back of it "Give us a call about what happened with those carpenters from yesterday. If not fixed, see you Monday."