Hamberger (Employment Advocate) v Williamson and Construction, Forestry, Mining and Energy Union

Federal Court of Australia|2000-11-23|Before: Marshall J

1 By his application in this proceeding, the applicant, Mr Hamberger, has sought the imposition of penalties on the respondents for two alleged contraventions of Part XA of the Workplace Relations Act 1996 (Cth) ("the Act"). Mr Hamberger has also sought that the Court make a declaration that the respondents have engaged in conduct in contravention of s298P(3) of the Act.

Factual background 2 Mr Hamberger is the current occupant of the statutory office known as the Employment Advocate. That office is provided for by s83BI of the Act which is found in Div 3 of Part IVA of the Act. 3 Pursuant to s298T(2)(d) of the Act, the Employment Advocate has the standing to make an application to the Court for an order under s298U of the Act in respect of a contravention of Part XA of the Act. 4 The second respondent, Construction, Forestry, Mining and Energy Union ("the Union") is an organisation of employees registered pursuant to Div 1 of Part IX of the Act. The first respondent, Mr Williamson, was at all material times a member of the Union who was a shop steward for the Union at a building site in Muir Street, Hawthorn, an inner-eastern suburb of Melbourne, and an employee of Abigroup Contractors Pty Ltd ("Abigroup"), the head contractor in respect of the construction work conducted at the site. 5 On 23 October 1998, Carson Painting Contractors Pty Ltd ("CPC") was contracted by Abigroup to supply labour, equipment and materials for the performance of all painting works at the Muir Street site. It was a condition of the contract that all employees of CPC on the site be registered for the Incolink redundancy scheme and the C+Bus industry superannuation fund. 6 At all material times, the proprietor and managing director of CPC was Mr Lee Carson ("Mr Carson Snr"). Mr Carson Snr's son, Mr Craig Carson, was employed by CPC as a painter. CPC performed painting work at commercial and domestic building sites. Depending on the nature of its workload, it usually employed between 6 and 10 painters. 7 From July 1998 until 11 February 1999, CPC engaged a company called IJ Enterprises Pty Ltd ("IJ") for the performance of certain work in connection with various of CPC's painting contracts. IJ was owned and controlled by a Mr Lyten. Although Mr Lyten occasionally performed actual painting work, he was overwhelmingly engaged on behalf of IJ to perform estimating work for CPC and in assisting CPC in securing contracts for the performance of painting work. He was also heavily involved in on site supervision of the work of painters employed by CPC. At the Muir Street site, Lyten worked as a supervisor of CPC's operations. As Mr Carson Snr said in his affidavit filed in the proceeding, "Lyten's role at the site was to supervise the project on my behalf". Mr Carson Snr also said that it was intended, at the outset of the work, that Mr Lyten would perform some painting duties at the Muir Street site in addition to his supervisory role. However, the evidence does not disclose that this work was anything other than incidental to the primary role for which he had been engaged at $1,000 net per week through IJ. 8 In either mid January or early February 1999, the date of which Mr Lyten was unsure, but which was most probably the former, Mr Lyten attended the Muir Street site to supervise the pre-coating of some doors. He attended with others concerned with CPC's contract with Abigroup. The evidence does not precisely disclose who attended the site that day with Mr Lyten. In any event, on the day in question, Mr Lyten spoke with Mr Williamson. The two men had not met before. Mr Lyten gave evidence that Mr Williamson knew he, Mr Lyten, was the person who was handling the contract for CPC. Mr Lyten said that Mr Williamson told him that everyone who comes to the site to work has to be in the Union and be in C+Bus and Incolink. However, he could not recall the exact words that Mr Williamson allegedly used. 9 There is no evidence that Mr Lyten told Mr Carson Snr that Mr Williamson had made the comment which Mr Lyten attributed to him. It was unexceptionable that people working on the site would be in C+BUS and Incolink. Indeed, that requirement was contained in CPC's contract with Abigroup. The comment about union membership may be considered to be more controversial but nothing arose from it and that part of the conversation was inconsequential apart from it being raised in this proceeding as what was alleged to be the first contravention of Part XA of the Act. Indeed, Mr Lyten gave evidence that some of the painters had joined the Union. There is no evidence that this was done involuntarily or under protest. 10 On 9 February 1999, Mr Lyten, the Carsons, a painter called Guy Lawson and a couple of unidentified painters working for CPC came on to the Muir Street site at about 7.30 am. From the C+BUS records tendered into evidence, it is likely that the other two painters were a Glenn McKee and a Michael Pratt. 11 Mr Lyten gave evidence in one of two affidavits filed by him in the proceeding that this was "(t)he first time I actually physically worked on the site, as opposed to performing technical duties". Although, under cross-examination, Mr Lyten said:

"I supervised the first bit of work there. I didn't actually work on site. I was involved purely as a supervisor in that area. Then on the last day that I was there I was intending to work with the other workers there." Then, a few questions later, Mr Lyten said:

"I may have spent a couple of hours rolling some walls on the day that we got told to leave actually." 12 The reference to being "told to leave" is a reference to the events which transpired at the site from 10.00 am on 9 February 1999. At that time, a stop work meeting was called by a shop steward called "Mick". As a result of the stop work meeting, no further work was performed at the Muir Street site until 11 February 1999. 13 No one told Mr Lyten to leave the site. It was open to him to remain at the site without loss of remuneration but without the actual performance of work. He chose to leave the site to attend a site at Geelong at which CPC was performing work. The following day he was engaged in paperwork related to IJ's contract with CPC. 14 Mick's action in calling a stop work meeting which resulted in the site not functioning until two days later appears to have galvanised Mr Lyten into making a complaint about the Union to the Employment Advocate and into planning a confrontation with Mr Williamson. 15 At some time on 9 February 1999, Mr Lyten telephoned the office of the Employment Advocate and spoke with a Mr Hanley. In an affidavit sworn by him and filed in the proceeding, Mr Hanley stated that Mr Lyten wanted advice about "his rights as a non-union worker working on a union controlled construction site". An appointment was made for Mr Lyten to see Mr Hanley on the afternoon of 10 February 1999. 16 Mr Lyten made no mention, in either affidavit sworn by him, of any telephone call to, or appointment with, any officer of the applicant. Incredibly, as with much of his evidence, Mr Lyten stated under cross-examination that his visit to Mr Hanley was "not particularly" important. I pause to observe at this stage that, having regard to his demeanour in giving his evidence, the inconsistencies in his evidence and his propensity to give unconvincing evidence in many respects, I consider Mr Lyten to be a witness whose evidence must be treated with the utmost caution. 17 The meeting with Mr Hanley took place at 4.30 pm on 10 February 1999. Mr Lyten attended the meeting with Mr Carson Snr. Under cross examination, Mr Lyten agreed that he discussed with Mr Hanley the sort of evidence required for the Employment Advocate "to bring a case". Mr Lyten further said that Mr Hanley suggested that for "them to be able to do anything I would have to have a clear record of what transpired" (emphasis supplied). 18 Mr Carson Snr said that there was no reason why his meeting with Mr Hanley was not recorded in his affidavit and that he saw the meeting as an important one. Mr Carson Snr also gave evidence that Mr Lyten told Mr Hanley that he expected there would be a confrontation between he, Lyten, and Mr Williamson at the Muir Street site the next morning. By the time of the meeting, CPC had been advised by Abigroup of the recommencement of work at the site for the morning of 11 February 1999. 19 Mr Hanley gave evidence in his affidavit that he advised Mr Lyten to make a detailed record of any conversation with any representative of the union at the site and to make a detailed record of any threats made. He said that he outlined the type of evidence that would be required for the Employment Advocate to take action and also outlined the need for corroboration. 20 In his oral evidence, Mr Hanley said that during the meeting, he turned his mind to whether Mr Lyten and Mr Carson Snr were telling him about something which may have been a breach of the Act. Mr Hanley said that he told Mr Lyten not to meet with Mr Williamson alone and to take careful notes of what transpired at any meeting. 21 Mr Hanley said that he knew that a tape recorded conversation might be useful in evidence and that in exceptional circumstances, with the permission of the senior legal officer employed by the applicant, he may be allowed to tape record conversations. However, Mr Hanley denied knowing that "these gentlemen had taped the meeting until after they told me they had". 22 There is no doubt in my mind that it should have been reasonably foreseeable to Mr Hanley that Mr Lyten would attempt to record any conversation with Mr Williamson. As Mr Lyten said, Mr Hanley stressed upon him and Mr Carson Snr the need to have a clear record of what transpired. What better way to do that than to tape the conversation. Although Mr Hanley did not directly canvass that option, he did nothing to discourage it and should have foreseen the possibility of it occurring. This is especially so given that it was something that he himself could only do with the permission of his superiors in exceptional circumstances according to internal guidelines issued by the applicant. 23 Mr Lyten arrived on site at 10.00 am on 11 February 1999. According to his first affidavit, on arrival at the site he said to Mr Caron Snr, "I'm not going to join the Union". I find this evidence incredible. No-one had asked Mr Lyten to join the Union and Mr Carson Snr knew full well that Mr Lyten would not join the Union. At paragraph 22 of Mr Lyten's first affidavit, he says as follows: "Carson and I then had a short discussion about the matter of my non-union preference as it applied to my situation and he told me that he would support my decision. We then walked to Williamson's office on the site." This discussion is most unlikely to have occurred. Mr Carson Snr knew exactly what Mr Lyten was doing and was complicit in it. 24 In his affidavit, Mr Carson Snr gave evidence that he arrived at the site at 7.00 am on 11 February 1999. He said that when Mr Lyten arrived at 10.00 am from working at the Geelong site, Mr Lyten said, "I'm not going to join the Union. Perhaps we should go and see the site rep and see what he has to say". For the reason identified in the previous paragraph, this evidence is highly suspect. 25 Under cross-examination, Mr Lyten said that as soon as he got to work he was going to be asked to join the Union. There was no basis for this statement. His membership or non-membership of the Union was not an issue on site. It seems highly likely that, as far as Mr Williamson knew, Mr Lyten was part of the CPC management team. It was in that capacity in which Mr Lyten first met Mr Williamson the previous month. On Mr Lyten's own admission, he had already performed some painting work on site without being challenged by any Union representative. He agreed with counsel for the Union that there was nothing stopping him from putting on his overalls and starting to paint at 10.00 am on 11 February 1999. Instead, he approached Mr Carson Snr to orchestrate the foreshadowed confrontation which had been referred to in the meeting with Mr Hanley. 26 Also under cross-examination, Mr Lyten said that the comment attributed to him in his affidavit and directed to Mr Carson Snr upon Mr Lyten's arrival on site was to remind Mr Carson Snr about his views "just in case I changed my mind". 27 In his oral evidence, Mr Carson Snr gave a more believable account of what occurred at 10.00 am on 11 February 1999 between himself and Mr Lyten. Mr Carson Snr gave evidence to the effect that when Mr Lyten arrived, he said "we're going to have a talk with Williamson". Just prior to going to a shed where Mr Williamson was, Mr Lyten told Mr Carson Snr that he was going to tape the conversation with Mr Williamson. 28 The tape starts with a rehearsal of roles by the co-conspirators with Mr Lyten saying to Mr Carson Snr, "Lee, you're just going to say you want me to work here and I won't join the Union". This was the strategy which was adopted. It was deliberately concocted to inflame Mr Williamson and incite him into making a comment which could be used against him in a proceeding such as the present one. 29 In his oral evidence, under cross-examination, Mr Carson Snr gave unconvincing evidence about being unaware that Mr Lyten was going to start the confrontation. This was immediately followed by a large memory lapse concerning his knowledge about whether the meeting would be secretly taped. His claimed lack of knowledge on that issue contradicted what was in his affidavit and was inconsistent with later evidence of his on the same topic. 30 Mr Lyten gave evidence of not being concerned about whether it was proper or not to tape the conversation. I do not accept his evidence that "there was nothing really secret about it" (emphasis supplied). He attempted to justify that comment on the basis that the recording device was in the top pocket of his shirt on a hot day. He gave evidence that he didn't know why he didn't put the recorder on a table but ultimately took refuge in the fact that there was allegedly no table to put it on. He eventually agreed with counsel for the Union that he "wanted it kept secret" (emphasis supplied), saying, "I would have preferred that, yes". 31 During the course of the secretly taped meeting, Mr Lyten told deliberate untruths to Mr Williamson in an attempt to inflame the situation. One lie he told was that he had lost a day's pay as a result of the stop work on 9 February 1999. He admitted under cross-examination that there was no prospect of him missing out on a day's pay and no suggestion that CPC was not going to pay IJ for his services on that day. He admitted telling a lie. Mr Carson Snr was initially reluctant in his oral evidence to agree that Mr Lyten had lied despite Mr Lyten admitting that he had lied. After an inordinately long pause, Mr Carson Snr finally admitted that Mr Lyten had lied to Mr Williamson in saying that he had lost a day's pay. 32 Another lie told by Mr Lyten to Mr Williamson was that CPC had "other blokes who don't want to join too". There was no evidence or even the remotest suggestion that any identified person (being a CPC painter) had refused to join the Union when requested. A particularly disturbing aspect of Mr Lyten's evidence was his admitted indifference to whether it was proper in all the circumstances to secretly tape his conversation with Mr Williamson. 33 During the course of the taped conversation, Mr Williamson said that CPC had to have "union labour on this site". Apart from Mr Lyten, there is no suggestion that it did not have such labour. Indeed, given that the substantial proportion of Mr Lyten's duties was supervisory, it is seriously questionable whether Union shop stewards would have had any interest in him doing an occasional bit of painting without a Union membership ticket. There was no relevant problem on site until Mr Lyten manufactured one.

The first alleged contravention 34 Mr Nicholas Green QC, with Mr Justin Bourke of counsel, appeared as counsel for Mr Hamberger. Mr Green submitted that Mr Williamson's statement to Mr Lyten in January 1999 at the Muir Street site to the effect that "everybody who comes here to work has to be in the Union" constituted a contravention of s298P(3) of the Act. 35 Section 298P(3) of the Act provides that: "An industrial association, or an officer or member of an industrial association, must not:

(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." 36 There was no evidence that Mr Williamson's statement to the effect that "everybody who comes here to work has to be in the Union" was referred by Mr Lyten to Mr Carson Snr. In no sense can Mr Carson Snr be said to have been advised, encouraged or incited to do anything as a result of the comment made to Mr Lyten by Mr Williamson. Certainly, there was no organising or threatening of industrial action of any kind against CPC as a result of that comment. According to the evidence in this proceeding, the comment did not reach the ears of CPC. 37 Insofar as it is alleged that the comment by Mr Williamson constituted a breach of s298P(3) in relation to IJ, such allegation is without foundation. There is no evidence that Mr Lyten was an employee of IJ. For what it is worth, he denied that possibility himself. The evidence is that he was a director of IJ and traded as IJ but that does not make him an employee of IJ. His relevant income tax records do not refer to him being employed by IJ. As was said by the Privy Council in Lee v Lee's Air Farming Ltd [1961] AC 12 (at 25): "It is well established that the mere fact that someone is a director of a company is no impediment to his entering into a contract to serve the company." This does not mean that every director of a company will necessarily be an employee of that company. In the absence of evidence that Mr Lyten was an employee of IJ, there can be no breach of s298P(3) of the Act with respect to any action prohibited by s298K. Consequently, the alleged first contravention of the Act cannot be established.

The second alleged contravention 38 Mr Green submitted that a series of statements made by Mr Williamson on 11 February 1999 in his taped conversation with Mr Lyten and Mr Carson Snr constituted conduct which was in breach of s298P(3) of the Act. Mr Julian Burnside QC appeared with Mr Herman Borenstein of counsel for the Union. Mr David Staindl appeared as counsel for Mr Williamson. Counsel for those respondents contended that the Court should decline to admit into evidence the tape recording and transcript of the tape recording of the 11 February 1999 conversation. The Court allowed the tape and the transcript of it to be conditionally tendered to enable it to hear submissions about whether the tender should stand. 39 Counsel for the respondents submitted that the Court should exercise its discretion pursuant to s138 of the Evidence Act 1995 (Cth) ("the Evidence Act") to exclude from the evidence in the proceeding the tape recording and the transcript of it. It was submitted that the tape recording was obtained improperly or in consequence of an impropriety. 40 I do not see how that submission can be seriously disputed. The conversation was an orchestrated confrontation engineered by Mr Lyten to deliberately provoke a dispute which would otherwise have, in all likelihood, not occurred. 41 The conversation commenced with Mr Lyten and his co-conspirator, Mr Carson Snr, rehearsing their charade. The conversation contained a series of lies told by Mr Lyten. First, he lied by saying that he intended to paint (in the sense of doing so for the first time or as his substantive function) when he had already performed some painting duties on site. Any painting he performed was going to be incidental to his supervisory function and not in any way his main function and therefore unlikely to arouse Mr Williamson's interest as it had not done hitherto. Second, Mr Lyten lied when he told Mr Williamson that CPC had "other blokes who don't want to join" the Union. There was no evidence about the existence of any such individuals. Third, he lied about losing a day's pay as a result of the stop work meeting on 9 February 1999. He secretly taped a conversation in which he inflamed the person he had decided to set up by a series of lies. How anyone could consider this conduct to be other than improper or designed to advance an impropriety defies rational consideration. 42 Section 138(2) of the Evidence Act provides that: "Without limiting subsection (1), evidence of an admission that was made during or in consequence of questioning, and evidence obtained in consequence of the admission, is taken to have been obtained improperly if the person conducting the questioning:

(a) did, or omitted to do, an act in the course of the questioning even though he or she knew or ought reasonably to have known that the act or omission was likely to impair substantially the ability of the person being questioned to respond rationally to the questioning; or

(b) made a false statement in the course of the questioning even though he or she knew or ought reasonably to have known that the statement was false and that making the false statement was likely to cause the person who was being questioned to make an admission." 43 Apart from constituting conduct which one would ordinarily consider to be improper, the false statements made by Mr Lyten also fit the description, referred to in s138(2) of the Evidence Act,of statements "likely to cause the person who was being questioned to make an admission". Mr Lyten's lie that he intended to paint when he was already painting wrongly canvassed as truth a factual scenario where Mr Lyten's substantive role would be as a hands-on painter rather than as a supervisor. If Mr Lyten reaffirmed his true role to Mr Williamson, the issue of his union membership would, in all likelihood, never have arisen apart from Mr Lyten ensuring that it did by provoking a confrontation and lying in the course of that confrontation. Mr Lyten's lie about losing a day's pay was obviously intended to enrage Mr Williamson in order to engage him in a robust debate which would be likely to end acrimoniously, as actually occurred. 44 In accordance with s138(3) of the Evidence Act,I now pause to consider a range of matters referred to in that sub-section which have a bearing on the exercise of the Court's discretion. The important factors relevant to this proceeding to which reference is made in s138(3) of the Evidence Act are as follows: · There would have been little difficulty obtaining the evidence required to successfully bring an application of the sort made in this proceeding, assuming the respondents to have no defence, if one of Mr Hamberger's officers had arranged to speak to the alleged transgressor (see s138(3)(h)). · I consider the impropriety to have been deliberate on the part of Mr Lyten and Mr Carson Snr. Indeed, the evidence points to no other conclusion (see s138(3)(e)). · The impropriety was grave given that it artificially manufactured a confrontation which would in all likelihood never otherwise have occurred. If such alleged behaviour of the Union and its various shop stewards was widespread, one might ask why there was no evidence of that. It reinforces my view that but for the artificially manufactured nature of the confrontation which was a result of Mr Lyten's distaste at the calling of the stop work on 9 February 1999, the conversation which was secretly taped would never have occurred (see s138(3)(d)). · The evidence might otherwise have been probative and important in the proceeding given the nature of the proceeding (being one concerned with freedom of association) (see s138(3)(a) to (c) inclusive). None of those factors makes it desirable to admit the evidence, given the undesirability of admitting it having regard to the way in which it was manufactured and obtained (see s138(1)). This is particularly so in circumstances where the two key applicant witnesses gave generally unreliable viva voce evidence to the Court and showed a general lack of concern for probity. 45 Mr Lyten, in the face of overwhelming evidence to the contrary, which ultimately led to a concession to the contrary, maintained in his oral evidence a position taken in his first affidavit that he was an employee of CPC. I suspect that he knew full well that he had attended at the Muir Street site as the proprietor of IJ and was never an employee of CPC. That he maintained such a position, in combination with his admission that he lied to Mr Williamson, makes the Court all the more reluctant to admit evidence of his concocted confrontation. I also view with great suspicion the fact that neither Mr Lyten or Mr Carson Snr made any reference in their initial affidavits to their visit to Mr Hanley. It is unfortunate that the applicant's efforts to obtain interlocutory relief early in 1999 in this proceeding was made without all known relevant factual issues being disclosed to the Court, ie. Mr Hanley's involvement with Mr Lyten and Mr Carson Snr. 46 Further, in his viva voce evidence, Mr Lyten initially gave unacceptable evidence about whether there was anything secret about the recording. He also gave unacceptable evidence when he initially said that he did not decide to keep the fact of the tape recording secret. The same can be said of his evidence which denied that the confrontation was one which he expected to provoke. Additionally, his evidence that he needed to remind Mr Carson Snr about his views prior to embarking upon the confrontation was incredulous. Equally incredulous was his denial that he was trying to stir up a fight. The same applies to his evidence to the effect that Mr Williamson would have picked him out as a new-starter on 11 February 1999. 47 Equally unacceptable was Mr Lyten's denial that he intended to provoke Mr Williamson into insisting that he, Mr Lyten, join the Union. I am reinforced in my view about the undesirability of admitting the evidence of the taped conversation having regard to the general unreliability of the person who orchestrated the confrontation and taped it. Mr Lyten's evidence is riddled with inconsistencies and in many respects, including those identified above, is not credible. 48 His co-conspirator, Mr Carson Snr, was marginally more convincing. He gave oral evidence which conflicted with his affidavit evidence until reminded of his affidavit evidence in respect of his knowledge of the conversation with Mr Williamson being secretly taped. In his oral evidence he stated that he was unaware of Mr Lyten's reason for taping the conversation and "unclear about exactly what was happening", when in his affidavit he stated that he knew that Mr Lyten was "planning to tape record the conversation, and understood his reasons for doing so". 49 Given that the confrontational conversation and its taping in secret occurred with the co-operation and support of Mr Carson Snr, an additional consideration in the exercise of the discretion to refuse to admit into evidence the tape and the transcript of it is Mr Carson Snr's impugned incredibility. 50 In short, Mr Williamson was set up by a highly artificially manufactured device arranged by two people who have a reckless indifference to probity and a propensity to give inconsistent and unacceptable evidence under oath. In all the circumstances, the Court will exercise its discretion to exclude the evidence which consists of the tape recording and the transcript of it pursuant to s138 of the Evidence Act. Without such evidence there is no evidence at all to support the alleged second contravention. Consequently, the application will be dismissed.

The no case submission 51 At the conclusion of the evidence of Mr Hamberger, Mr Burnside submitted that he should be permitted to make a no case submission without being put to his election. I declined to permit him to do so on the basis that I considered that the no case submission would require me to assess the credibility of Mr Lyten, particularly having regard to his initial denial that he had secretly taped the conversation with Mr Williamson on 11 February 1999. I took the approach suggested by Sackville J in ACCC v Amcor (1999) 169 ALR 344, [2000] FCA 17 who said (at [69]): "Had I concluded that the no case submission required me to assess the credit of any of the witnesses, I would have declined to entertain it unless the respondents elected to call evidence." I certify that the preceding fifty - one (51) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall.

Associate: Dated: 23 November 2000 Counsel for the Applicant: Mr N Green QC with Mr J Bourke

Solicitor for the Applicant: Australian Government Solicitor

Solicitor for the 1st Respondent: Ryan Carlisle Thomas

Counsel for the 2nd Respondent: Mr J Burnside QC with Mr H Borenstein

Date of Hearing: 23, 24 and 25 October 2000

Date of Judgment: 23 November 2000

Workplace Relations Act 1996(Cth)

At a glance

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Judgment (17 paragraphs)

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