Hamberger v Construction Forestry Mining & Energy Union

the complaints 17 The Advocate alleges the conduct of Hanna in his conversation with Poppi : (a) constituted a threat of industrial action within the meaning of s 298B(1) of the Act; (b) was conduct engaged in with the intent to coerce Hedley to take discriminatory action within the meaning of s 298S(1) of the Act against Poppi, Thinee and Thomas because they were not members of the BLF or the CFMEU; (c) was conduct engaged in with the intent to coerce Hedley to do or threaten to do either or both of the following : (i) injure Poppi, Thinee and Thomas in relation to the terms and conditions of their respective contracts of services with Hedley; (ii) alter the position of Poppi, Thinee and Thomas to the prejudice of each; because they were not and did not propose to become members of the BLF or the CFMEU. 18 The term "discriminatory action" is defined in s 298S(1) as : "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." 19 The Advocate contends that the conduct in paragraphs (a), (b) and (c) above constituted a contravention of s 298S(2)(a) and (b) of the Act by Hanna, the BLF and the CFMEU. 20 Section 298S(2) provides : "298S(2) An industrial association, or an officer or member of an industrial association, must not: (a) advise, encourage or incite a person (whether an employer or not) to take discriminatory action against an eligible person because the eligible person is not a member of an industrial association; or (b) take, or threaten to take, industrial action against an employer with intent to coerce the employer to take discriminatory action against an eligible person because the eligible person is not a member of an industrial association; or (c) take, or threaten to take, industrial action against an eligible person with intent to coerce the person to join an industrial association." 21 The Advocate further contends that the conversation with Poppi, as set out above, was conduct by Hanna which constituted advise to, or encouragement or incitement of, Hedley to do or threaten to do either or both of the following : (a) injure Poppi, Thinee and Thomas in relation to the terms and conditions of their respective contracts of services with Hedley; (b) alter the position of Poppi, Thinee and Thomas to the prejudice of each; for the reason that Poppi, Thinee and Thomas were not, or did not, propose to become members of the BLF or the CFMEU. 22 The Advocate contends that this conduct constituted a contravention of s 298P(3)(a) and (b) of the Act. 23 Section 298P(3) provides : "298P(3) An industrial association, or an officer or member of an industrial association, must not : (a) advise, encourage or incite an employer; or (b) organise or take, or threaten to organise or take, industrial action against an employer with intent to coerce the employer; to take action in relation to a person that would, if taken, contravene section 298K." 24 Section 298K provides : "298K(1) An employer must not, for a prohibited reason, or for reasons that include a prohibited reason, do or threaten to do any of the following : (a) dismiss an employer; (b) injure an employee in his or her employment; (c) alter the position of an employee to the employee's prejudice; (d) refuse to employ another person; (e) discriminate against another person in the terms or conditions on which the employer offers to employ the other person. 298K(2) A person must not, for a prohibited reason, or for reasons that include a prohibited reason, do or threaten to do any of the following : (a) terminate a contract for services that he or she has entered into with an independent contractor; (b) injure the independent contractor in relation to the terms and conditions of the contract for services; (c) alter the position of the independent contractor to the independent contractor's prejudice; (d) refuse to engage another person as an independent contractor; (e) discriminate against another person in the terms or conditions on which the person offers to engage the other person as an independent contractor." 25 A "prohibited reason" for the purpose of s 298K(2) is that the independent contractor is not, and does not, propose to become a member of an industrial association: s 298L(b). 26 As to the conduct of Ravbar in the conversation with Harmsworth on 4 March 1999, and the leaving of the business card on 5 March 1999, the Advocate contends : (a) the conduct constituted advice to or encouragement or incitement of Leighton to take discriminatory action within the meaning of s 298S(1) against Thinee and Thomas; (b) the conduct was engaged in by Ravbar for himself and for and on behalf of and as an officer of the BLF and the CFMEU. In these circumstances the Advocate contends Ravbar, the CFMEU and the BLF have contravened s 298S(2)(a) of the Act in respect of the conduct alleged on 4 and 5 March 1999. 27 On 10 March 1999, Ravbar and Hanna approached Poppi, Thinee and Thomas on the Museum of Tropical Queensland site. The Advocate alleges the following conversation occurred : "Poppi: 'No I'm not joining.' Hanna: 'Why.' Poppi: 'It's not compulsory to join the union.' Ravbar: 'It's not compulsory but everyone else on the site is in the union and you should be as well, you should have joined from day one.' Poppi: 'We have a contract with Leighton and they are saying that it is not a union site and not compulsory to join the union.' Hanna: Right fuck you and Hedley. Hedley have got jobs in Cairns as well and we will get them there too. We will talk to these other blokes and we will sort this out.'" 28 The Advocate contends that the conduct engaged in on 10 March 1999 was engaged in by Hanna to coerce Hedley as an employer to take discriminatory action within the meaning of s 298S(1) of the Act against Poppi, Thinee and Thomas. 29 The conduct, the Advocate contends, was engaged in by Hanna for himself and as an officer of the BLF and the CFMEU. Such conduct, the Advocate contends, constituted a contravention of s 289S(2)(b) of the Act. 30 The standard of proof which the Advocate must satisfy is the civil standard of proof. However, the Court is required by s 140(2) of the Evidence Act 1995 (Cth) to take into account the nature of the cause of action, the nature of the subject matter of the proceeding and the gravity of the matters alleged in determining whether it is reasonably satisfied that the matter has been proved. Where, as here, a civil offence is alleged, a standard of proof above mere satisfaction on the probabilities is appropriate: see Employment Advocate v National Union of Workers [2000] FCA 710 at paras 25 - 29.

the facts 31 Ravbar and Hanna both swore affidavits and gave oral evidence. I do not accept their evidence where it conflicts with that of Poppi, Thinee, Harmsworth and David Brockhurst. Their evidence has an air of unreality about it. They assert that they were primarily discussing the enforcement of the provisions of a Statement of Intent, which Ravbar contends Leighton by one Bruce Cull had agreed would operate at the site, with people who appear oblivious to what is being said and who continue to make statements to the effect that people cannot be forced to join the CFMEU. There are further reasons why I do not accept the versions of events given by Ravbar and Hanna. 32 Mr Poppi made notes in his notebook of Hanna's conversation with him on 4 March 1999. It says : "While speaking with Dave Hanner [sic] (Union) he told me that by Monday; if myself and the two carpenters, Hedley had got on site have not joined the Union we would not be allowed to work and [sic] site". 33 Counsel for the respondents submits that the note should be treated as unreliable because it does not contain the full text of the conversation he deposed to in his affidavit. I do not agree. Poppi recorded in his notebook the essentials of the conversation. In fact, he provided a statement to an officer of the Advocate in Townsville on the next day, 5 March 1999. That statement was tendered into evidence by the respondents. It says : "5. At approximately 10:00 am on the 4th of March 1999 I attended at the meeting which was held on the first floor of the museum site. Present at the meeting were all workers on the site including management and a representative from Leighton. David Hanna from the Builders Labourers Federation ('BLF') was controlling the meeting. When the meeting started Hanna said : 'I won't start this meeting until all the management leave. At that point Mark Brockhurst (Leighton) Tony Petrie (Form-setters) and myself left the meeting. 6. At 10:45 am on the 4th March 1999 I was working on the site, I was walking towards Leighton office to look at the plans, as I was doing this I was approached by Hanna. Hanna said: 'Are you and your blokes going to join the union?' 7. I said : 'No, I didn't think it was compulsory to join the union. I'm the foreman on site, I didn't thin [sic] I had to join the union.' 8. Hanna said: '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.' 9. I said: 'I didn't think it was compulsory to join the union.' 10. Hanna said: 'If you and your blokes don't join the union by Monday, well [sic] have a show of hands to close down the site. You won't be allowed on site.' 11. I said: 'Are you saying we can't work?' 12. Hanna said: 'No, you just won't be allowed to work on this site.' Hanna then walked away." 34 Hanna's affidavit was sworn on 15 October 1999. There is no suggestion that he made any contemporary record of his version of the conversation. Hanna admits that he used the phrase "We will have a show of hands". The context in which he said he used it, to express an intention to enforce the Statement of Intent in order to ensure that all workers on site were entitled to the same benefits, is expressly denied by Poppi. I am satisfied that the subject matter of the conversation was union membership and that the subject was raised by Hanna. I am also satisfied that his attitude was confrontational. 35 Hanna knew that Poppi had a dual role on site as both a manager for Hedley and as an independent contractor providing carpentry services to Hedley. The statements made by Hanna were made, and intended to be made, to Poppi in both capacities and were intended to be responded to by Poppi in each capacity. It was made with the intention and expectation that it would be reported to Hedley, Thinee and Thomas and acted upon by each of them. 36 Objectively, the statements of Hanna meant, and were intended to mean, that unless Poppi, Thinee and Thomas joined the relevant union by the following Monday, he as a union official would procure the other workers on site to take industrial action by withdrawing their labour and closing down the site to deny Poppi, Thinee and Thomas the opportunity to work on the site. 37 The threatened action came within paragraph (d) of the definition of "industrial action" in s 298B(1) of the Act. The threat of industrial action was made against Poppi, Thinee and Thomas with the intent to coerce them to join an industrial association. Hanna says that he knew they were carpenters and as such were eligible for membership of the CFMEU. 38 The threatened industrial action was also made against Hedley and I am satisfied was made for the purpose of attempting to coerce Hedley to procure Poppi, Thinee and Thomas to join the CFMEU. 39 I accept the evidence of Harmsworth in preference to that of Ravbar as to what occurred in the dealings between Ravbar and Hanna and Harmsworth on 4 and 5 March 1999. Harmsworth diarised his conversation with Ravbar on the day each occurred. He recorded the words spoken in his diary and transposed them into the body of the affidavit he swore. He denies emphatically that the Statement of Intent was discussed other than in respect of the assertion by Ravbar that it required that the workers on site be members of the CFMEU. Harmsworth is corroborated by David Brockhurst, a general foreman employed by Leighton who was present in Leighton's site office when Hanna and Ravbar arrived at the office and the conversation deposed to by Harmsworth occurred. 40 The version of Ravbar as to what occurred in his conversations with Harmsworth is surreal. He has himself speaking in detail as to the provisions of the Statement of Intent drawn up by the CFMEU which he contends operated with respect to the site although it as never executed by Leighton. Harmsworth, on Ravbar's version of events, for no apparent reason, simply ignores Ravbar and keeps raising the issue of union membership by declaring that he could not force Hedley's carpenters to join the union. Ravbar asserted that the focus of the meeting was not union membership and the statements as to the need to resolve issues by Monday, which he admits were made, related to issues other than union membership of workers on site. 41 I do not accept the evidence of Ravbar that membership of the union by Hedley's carpenters was a non-issue in his dealings with Harmsworth. His conduct on 4 and 5 March and subsequently is totally inconsistent with such an assertion. I find that on 10 March 1999 Ravbar had a telephone conversation with Gregory Muir ("Muir"), a senior project manager with Leighton. Muir had been the site project manager for Stage One of the Museum of Tropical Queensland at Townsville between January 1998 and January 1999. His work included industrial relations issues on site and he had had dealings with Ravbar in his capacity as an officer of the CFMEU. 42 Harmsworth was Muir's successor on site and Harmsworth reported directly to Muir. 43 Muir deposed to the following exchange between himself and Ravbar on 10 March 1999 : "Ravbar said words to the effect: 'Greg, I am pissed off with Nathan Harmsworth telling the Hedley blokes it wasn't compulsory to join the union. It makes it harder for me if the head contractor tells the workers it is not compulsory to join the union.' I said words to the effect: 'I understand what you are saying.' Ravbar said words to the effect: 'The boys on site will withdraw their labour if Hedley's two workers don't join up and I will be on site tomorrow.'" Muir recorded this exchange in his notebook on completion of the telephone call. 44 Counsel for the respondents submits that the evidence of Muir should not be accepted because it was unreliable. The unreliability, he submits, is sourced in the failure to tell an officer of the Advocate when he first made a statement that Ravbar used the words "The boys on site will withdraw their labour if Hedley's two workers don't join up, and I will be on site tomorrow." The significance of the failure tends to wane when it is alleged that Ravbar in fact said to Muir "The boys on site will withdraw labour if Hedleys two workers don't have all their benefits fixed up, and I will be on site tomorrow." Muir's contemporary note records the words "if they don't join up." 45 The conversation with Harmsworth on 4 March 1999 concluded with Harmsworth agreeing to speak with Thinee and Thomas about joining the CFMEU. The later telephone discussion on 4 March 1999 concluded with Harmsworth being told to take further action to get the two carpenters to join the union. 46 There is no dispute that the business card was left by Ravbar on 5 March 1999 for Harmsworth. The words "Give us a call about what happened with those carpenters yesterday. If not fixed see you Monday" written on the back of the card, I find related to the membership of Thinee and Thomas in the CFMEU. The words "If not fixed see you Monday" related back to the statement of Ravbar made on 4 March that "You will need to talk to them and they need to join the union. We're coming back on Monday and this needs to be resolved" and "I'll be back on Monday and it had better be resolved." 47 The objective meaning of the words written on the card was, and it was intended to mean, that Ravbar wanted the two carpenters to agree, or to have agreed, to become members of the CFMEU and that he wanted that to occur by the following Monday. If that did not occur Ravbar would return to see Harmsworth on the Monday to further agitate the matter. 48 At the time that Ravbar engaged in the conduct which I find he did, he was acting as an official of the CFMEU. He was attempting to procure the enrolment of Thinee and Thomas as members of the CFMEU. The enrolment of persons eligible to be members of the CFMEU was part of the ordinary function of Ravbar as an officer of the CFMEU. 49 I am satisfied that Ravbar engaged in the conduct which he did to cause Harmsworth on behalf of Leighton to procure Thinee and Thomas to join the CFMEU. How Harmsworth was to procure such an outcome was not discussed; the means of persuasion was left entirely with Harmsworth. However, Harmsworth made it perfectly clear to Ravbar that he would do nothing unlawful to persuade the men to join. Implicit in the statements made by Ravbar was that a failure of the two men to join the CFMEU by the following Monday would have adverse industrial effects for Leighton but there was no explicit or implicit statement or suggestion that Leighton should take any action in respect of the two carpenters which would be prejudicial to their interests. 50 The Advocate submits that the conduct of Ravbar on 4 and 5 March 1999 constituted advice, encouragement or an incitement to Leighton to take discriminatory action against Thinee and Thomas as persons eligible to be members of the CFMEU. "Discriminatory action", for the purposes of s 298S(2)(a) of the Act, is defined in s 298S(1). That definition is limited to the refusal, by the recipient of the advice etc, to either use or to supply, services from or to an eligible person. Leighton was not at the time either a user of services supplied by Thinee or Thomas or a supplier to them of goods and services. Leighton had no contractual relations with Thinee or Thomas. The relevant user of services from, and the supplier of services in the nature of work to, Thinee and Thomas was Hedley. Those services were used and supplied under contracts with each as an independent contractor to Hedley. 51 Leighton, I find, was in no position on 4 and 5 March 1999 to take discriminatory action against Thinee or Thomas because they were not contractors to it and this was known by both Harmsworth and Ravbar. Ravbar, I find, was not concerned with how Thinee and Thomas were persuaded to join the CFMEU; it was sufficient for his purposes that Leighton in his view had an obligation under the Statement of Intent to ensure union membership on site and that he merely intended to press Leighton, as hard as was required, to satisfy that obligation under the Statements of Intent. 52 I am not satisfied to the requisite degree or at all that Ravbar, on 4 and 5 March 1999, advised, encouraged or incited Leighton to take discriminatory action as defined in s 298S(1) against Thinee or Thomas. In those circumstances, no question of intention or reason for the conduct of Ravbar arises. 53 The statements alleged to have been made by Hanna and Ravbar on 10 March 1999 to Poppi and Thinee, I am satisfied, were made. Both Poppi and Thinee made signed statements on the same day recording the contents of the statements. The contents of the statements are consistent with the previous statements of both Ravbar and Hanna and are consistent with the statement of Ravbar made to Muir on the telephone that day. 54 Counsel for the respondents submits that the evidence of Poppi is unreliable as to the content of this conversation because the version he recorded in his notebook used the plural when he advised that he was not going to join the union, which gave the impression that he was speaking for himself and Thinee and Thomas. Thinee and Poppi in their statements to the Advocate say that Poppi when he spoke, spoke in the singular for himself only. The variation does not, in my view, detract from the substance of the conversation sworn to by Poppi and Thinee and recorded in a contemporary written form.

conclusion 55 The Advocate submits that : (a) the conduct of Hanna on 4 March 1999 in his conversation with Poppi was in contravention of s 298P(3)(a), s 298P(3)(b), s 298S(2)(b) and s 298S(2)(c) of the Act; (b) the conduct of Ravbar, on 4 and 5 March 1999, was in contravention of s 298S(2)(a) of the Act; (c) the conduct of Hanna on 10 March 1999 was in contravention of s 298S(2)(b) of the Act. 56 For there to be a contravention of s 298S(2)(a) of the Act, there must be conduct which amounts to advice, encouragement or incitement of a person to take discriminatory action, as defined, against an eligible person. The Advocate has failed to make out such a contravention by Ravbar in the conduct which occurred on 4 and 5 March 1999. As this is the only conduct alleged against him, the proceedings will be dismissed against him. 57 The contraventions alleged against Hanna under s 298S(2)(b) and s 298P(3)(a) and (b) require that industrial action must be threatened against an "employer" or that advice encouragement or incitement must be given to an "employer". The Advocate submits that the relevant "employer" is Hedley. 58 Hedley was not the employer of Poppi, Thinee or Thomas at the material times with which these proceedings are concerned. They were, and for the purposes of s 298S must be, independent contractors, and not employees of Hedley. 59 The Advocate submits that it is sufficient that Hedley, at the relevant times, was an employer of labour irrespective of how that labour was employed or where it was employed. On the evidence, Hedley employed Labour unrelated to the works being performed on the Museum of Tropical Queensland site, and I so find. The respondents concede that Hedley was at all relevant times an employer. 60 The statutory purpose of Part XA, "Freedom of Association", is to protect independent contractors from discriminatory conduct or conduct which prejudices their interests because they are not, or refuse to become, members of an industrial association for which they are eligible for membership. The protection is from discriminatory action from those who deal with them (s 298S(2)(a) and (b)), from action which is prejudicial to their interests (s 298K(2)), or from direct industrial action taken or threatened to be taken against them by an industrial association or an officer or member of the same (s 298S(2)(c)). 61 The statutory purpose is also to protect those who have dealings with independent contractors from action from industrial associations or officers or members thereof because the independent contractors are not, or refuse to become, members of the industrial association (s 298S(2)(a) and (b); s 298P(3)). Part of the protection where the person who deals with an independent contractor is also an employer of labour, is to protect that person as an employer (s 298P(3) and s 298S(2)(b)). That protection is against industrial action (as defined in s 298B(1)) being taken against the party in its capacity as an employer. In context, that means "industrial action" as defined by s 298B(1) being taken against it by its employees. In my view, the requirement that the industrial action be taken against a person as an employer, as opposed to a person who deals with an independent contractor, is meaningless unless there is a direct relationship between the person as an employer and the industrial action. 62 The obvious situation that s 298S(2)(b) and s 298P(3) is directed at, is where the same work of an employer is carried out by a mix of employees who are members of an industrial association and independent contractors who are not. Similarly it is intended to operate where the workforce of an employer in one area of the employer's operations is unionised and that workforce takes, or threatens to take, industrial action, because the work of the employer in another area is carried out by non-unionised independent contractors. 63 In the present case the conduct of Hanna, in threatening industrial action, goes no further than threatening action amounting to the withdrawal of labour on site, or on other sites where the BLF or the CFMEU had a membership, which would prejudice Hedley in the performance of work on those sites because it is contracting with independent contractors. There is no evidence that Hanna was threatening to take or procure the taking of industrial action by labour employed by Hedley against it in its capacity as an employer of that labour. 64 For the above reasons, the Advocate fails to make out a contravention of s 298P(3) or s 298S(2)(b) by Hanna. 65 On this basis, the only remaining contravention relates to the conduct of Hanna on 4 March 1999 in relation to Poppi, Thinee and Thomas. 66 The Advocate submits that the conduct contravenes s 298S(2)(c) of the Act and that the conduct of Hanna was for the purposes of s 298B(2) conduct of the CFMEU and the BLF. 67 The respondents submit that s 298S and s 298B(2) are beyond the constitutional power of the Commonwealth. The reasons advanced by the respondents are the same as those advanced in Rowe v Transport Workers' Union (1998) 90 FCR 95. I have again reconsidered my reasons in Rowe. I find no basis to depart from those reasons. 68 The respondents also submit that Hanna was not authorised by either the BLF or the CFMEU to do an act which was unlawful under the Act. In support of this submission, they rely on the Constitution and Rules of the industrial associations and the decision of this Court in GTS Freight Management Pty Ltd v Transport Workers' Union of Australia (1990) 25 FCR 296 and the High Court in R v Williams Ex parte Australian Building Construction Employees' and Builders' Labourers' Federation (1982) 153 CLR 402. 69 Each of the decisions relied upon by the respondents predates the Act and were not concerned with the operation of s 298B(2) of the Act. 70 I am satisfied that Hanna on 4 March 1999 was on site in his capacity as an officer of the BLF. Harmsworth in his evidence said he understood that Hanna was there as an official of the BLF and that Ravbar was present as an official of the CFMEU. The site diary does not record an entry for either Hanna or Ravbar for 4 March 1999. The fact that Hanna was an official of the CFMEU and that he had an authority under s 285A of the Act to enter and inspect premises as such an official, does not necessarily mean that he entered the site in that capacity. The evidence is that he also held a Certificate of Authorisation under the State Act and there is no evidence that there were no members of the BLF on site. 71 The respondents submit that Hanna had no interest in enrolling Thinee and Thomas into a union because their eligibility was for the CFMEU and not the BLF. That may be so, but I am satisfied that Hanna, in his capacity as an officer of the BLF, was concerned to procure the enrolment of Thinee and Thomas into the CFMEU because he held the view that the interests of workers on site who were members of the BLF required that other workers on site, with whom they would be working, should be unionised. As such, I find he was acting in his capacity as a union official, taking steps which, he believed, were in the industrial interests of members of the BLF on site. That conduct falls within s 298B(2) of the Act. I reject the submission that s 298B(2) of the Act only covers conduct of an official, or member of an industrial association, which does not constitute a contravention of the Act. If that were so, s 298B(2) would have no work to perform in Part XA of the Act. The section is clearly intended to cover conduct of an official of an industrial association acting as such, even if the official is not specifically authorised by the Constitution or Rules of the industrial association, or by its committee of management, to do the act in issue. 72 The conduct of Hanna was, by the operation of s 298B(2), the conduct of the BLF. 73 I am not satisfied to the requisite degree that Hanna was, on 4 March 1999, acting in his capacity as an official of the CFMEU. 74 In conclusion, I am satisfied on the balance of probabilities that on 4 March 1999; (a) Poppi, Thinee and Thomas were "eligible persons" within the meaning of s 298S(1) of the Act; (b) Hanna threatened to take industrial action against Poppi, Thinee and Thomas as eligible persons with intent to coerce them to join an industrial association, in this case the CFMEU; (c) Hanna was at the time of taking such action, acting in his capacity as an official of the BLF and that in consequence of the operation of s 298B(2) of the Act, his conduct was the conduct of the BLF; (d) Hanna and the BLF, on 4 March 1999, contravened s 298S(2)(c) of the Act, in that they threatened to take industrial action against Poppi, Thinee and Thomas by withdrawing the labour of other workers on site and thereby denying Poppi, Thinee and Thomas the opportunity to perform their contracted work with intent to coerce them to join an industrial association. 75 I propose to make a declaration to give effect to my findings, to dismiss the proceedings against the first and third respondents, and, to adjourn the proceedings to a date to be fixed to hear submissions as to the imposition of any penalty. I certify that the preceding seventy-five (75) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cooper.

Counsel for the Applicant: J Murdoch SC Solicitor for the Applicant: Australian Government Solicitor

Counsel for the First, Second, Third and Fourth Respondents: S Crawshaw SC and R Treston Solicitor for the First, Second, Third and Fourth Respondents: Quinlan Miller & Treston

Dates of Hearing: 28, 29 February 2000, 17 April 2000 Date of Judgment: 22 December 2000