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[2003] WAIRComm 10243
plaintiff. The court found the complaint proven. The supplied reasons do not record a penalty or sentence.
4 cited instruments linked from this judgment.
The Industrial Magistrate found that a union delegate pressured a tiler to join the union by making him believe he could not work on a building site otherwise. The court treated pressure or coercion to join as capable of being a “threat” under s 96E(1), accepted the tiler’s evidence, and found the complaint proven. The supplied reasons do not record the penalty.
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2,060 words · generated 01/10/2026
In Lorraine Field v Anthony Kelly [2003] WAIRComm 10243, the Western Australian Industrial Magistrate’s Court considered a prosecution under s 96E(1) of the Industrial Relations Act 1979 (WA). The case was heard by Industrial Magistrate WG Tarr on 4 December 2003. The complainant was Lorraine Field of the Department of Consumer and Employment Protection, and the defendant was Anthony Kelly. The person said to have been threatened was Jeffrey Robert Gomm.
The allegation was that Kelly threatened that Gomm’s free and lawful exercise of his occupation would be interfered with because Gomm was not a member of an organisation of employees. Gomm was a registered builder and tile fixer based in Albany. He had contracted to carry out tiling work at a Jeans West store being developed at the Whitford City Shopping Centre site.
The judgment records problems concerning Gomm’s compliance with site requirements, including reporting to the site office, attending an induction, having the work area inspected, and having tools and equipment checked and tagged. The Industrial Magistrate distinguished those site and safety matters from the union-membership question, observing that much of the hearing evidence about other matters was peripheral to whether Gomm joined the union.
Gomm said Kelly told him, “If you want to work here you have to join up. You are not exempt because you come from Albany.” He also attributed to Kelly words telling him he could join or return to Albany to work for “scabby builders”. Gomm described Kelly as aggressive and said he felt intimidated and bullied. Kelly denied threatening him and said, in effect, that Gomm joined voluntarily.
Two other witnesses who were involved in site safety did not provide direct confirmation of what was said. One could not remember a conversation about membership; the other recalled Kelly and Gomm talking but could not remember the subject. The Magistrate nevertheless accepted Gomm’s evidence. The decision also refers to Gomm contacting the company employing him and then paying $604 for two union memberships, including one for a colleague who had not yet arrived or applied to join. The Magistrate regarded that payment as consistent with Gomm’s understanding that both workers had to be union members to work on the site.
The court found the complaint proven. The supplied reasons do not state whether a penalty was imposed or what any penalty was.
The court’s reasoning has two connected parts: the legal meaning of “threaten” and the factual question whether Kelly’s conduct fell within that meaning.
First, the Magistrate considered the meaning of “threaten” in s 96E(1). The judgment cites Allan Graham Shuttleton v James Wilson [76 WAIG 1175], an earlier decision of the Industrial Magistrate’s Court. The passage quoted from that decision says the legislative intent was to cover words and acts made to intimidate, pressure or coerce someone to join a union. Tarr IM expressly agreed with that interpretation and noted that a threat need not involve violence or injury. This is the principal legal proposition the decision applies.
Second, the Magistrate assessed whether Gomm had a real choice. Kelly’s denial and the limited recollections of the other witnesses were considered alongside Gomm’s account and the surrounding circumstances. The Magistrate accepted that Gomm would not have joined if he had felt able to choose, and that he joined because he felt intimidated and bullied. The court also considered the payment for the second worker’s membership before that worker had applied to join. It treated this as consistent with Gomm’s understanding that both workers could not work on the site unless they were union members.
The finding was not based simply on Kelly’s general support for unionism. The judgment records Kelly’s belief that eligible workers should join and that there should not be non-unionists on site, as well as his explanation of “NO ticket NO start” notices. Those matters formed part of the background. The decisive finding, however, was that Kelly threatened Gomm in a way that left him believing he had to join if he wanted to perform the work he had contracted to do.
The Magistrate also separated the membership issue from the legitimate site and safety requirements. The reasons state that Gomm left the site because of problems complying with those requirements. But the court’s finding about the membership conversation was that Gomm had no choice about joining if he wished to carry out the contracted work there. In the court’s analysis, concerns about site compliance did not displace the separate statutory protection concerning union membership.
The judgment sets out the statutory framework rather than undertaking a broad review of the history of freedom-of-association law. Section 96B, as reproduced in the reasons, prohibits an award, industrial agreement, order or employment-related arrangement from requiring a person to join or leave an organisation, or from treating a person more or less favourably because of membership or non-membership. It also prohibits conferring a right to preferential employment because of membership or non-membership. A requirement contrary to that section is of no effect.
Section 96E(1), the provision under which Kelly was prosecuted, is framed as an offence provision. As quoted in the judgment, it prohibits a person from threatening that discriminatory action will or may be taken, or that the free and lawful exercise of another person’s trade, profession or occupation will or may be interfered with, because that person or a third person is not a member of an organisation of employees. The reasons also set out the applicable penalty ranges, but do not record a penalty imposed in this matter.
The judgment’s particular contribution is its application of the meaning of “threaten” to a workplace membership dispute. It adopts the earlier Shuttleton interpretation and applies it to words and circumstances said to pressure a worker into joining. The decision therefore treats coercive pressure as potentially within s 96E(1), without requiring a threat of physical harm.
The decision does not describe a change in the statutory text or announce that it is overruling or replacing earlier law. On the material supplied, its role is better characterised as applying an existing interpretation to the facts before the court. The judgment states that freedom to choose whether to join is the legislative intention, but it does not provide a comprehensive account of the law before or after the 1993 amendment mentioned in s 96B(2).
The reasons quote s 96E(1) as prohibiting a threat that a worker’s occupation “will or may be interfered with” because the worker is not a union member. In plain English, the provision addresses pressure that threatens consequences for someone’s work because they are not in a union. The judgment confines its decision to the allegation and evidence before it.
The court adopted the Shuttleton explanation that “threaten” covers acts and words made to intimidate, pressure or coerce a person to join a union. The plain-English point is that the statutory term is not limited to an express threat of violence. Pressure intended to make a worker join may fall within the provision if the other elements are established.
The Magistrate’s key factual finding was: “I am satisfied on the evidence that the Defendant did threaten Mr Gomm to the extent that he had no choice but to join the union if he wanted to carry out the work he was contracted to do” at the site. In everyday terms, the court accepted that Gomm understood union membership to be a condition of doing his contracted work there, and found Kelly had threatened him in that respect.
The judgment also says that Kelly’s beliefs about unionism could not override the legislative right of worker choice. In plain English, the court treated strong support for union membership as no answer to the statutory protection. The decision does not suggest that union advocacy by itself was the offence; the finding concerned the pressure the court accepted was applied to Gomm.
This decision is most directly relevant to a fact pattern involving alleged pressure on a non-union worker to join an employee organisation, combined with a threatened consequence for the worker’s ability to carry out their occupation. The court’s application involved a worker engaged under contract for a particular job, words said to make union membership a condition of working at the site, and evidence that the worker felt unable to refuse.
The decision may be especially pertinent where the alleged pressure is expressed verbally rather than as a threat of physical harm. The Magistrate adopted an interpretation of “threaten” that includes intimidation, pressure and coercion. The form of the alleged words, their context, and what consequence the worker reasonably understood to be at stake would be central factual matters under the reasoning in this judgment.
The case also shows the relevance the court attached to the surrounding evidence. Gomm’s account of the conversation, his reaction, his subsequent call to the company employing him, the payment for two union memberships, and the other witnesses’ inability to recall the substance of the conversation all featured in the court’s assessment. The judgment does not establish that any one of those details is necessary in every case.
The decision should not be read as resolving every dispute involving union membership or site access. The reasons identify legitimate safety and site requirements and note that Gomm had difficulties complying with them. The finding of an offence was based on the separate conclusion that Kelly threatened interference with Gomm’s contracted work because of non-membership. The statute’s wording and the particular evidence remain important.
The supplied judgment contains no references to cases decided after 4 December 2003 and provides no account of how later courts treated this decision. It would therefore be unsupported to describe the decision as having been followed, distinguished, limited or otherwise treated by later courts on the basis of this text alone.
The judgment itself identifies one earlier authority: Allan Graham Shuttleton v James Wilson [76 WAIG 1175]. Tarr IM agreed with the meaning of “threaten” explained there and applied it. That is the precedent relationship visible in the supplied reasons. No later authorities are cited, and no conclusion about the decision’s present precedential status can be drawn from the judgment as provided.
For research purposes, this limitation matters. The decision reports a trial-level finding and an application of a statutory provision in a specific workplace setting. The text alone does not establish whether a later court has adopted, questioned or interpreted that reasoning in a different statutory or factual context.
Several matters remain outside the supplied reasons. First, the judgment does not record sentencing or the penalty, despite setting out the statutory penalty ranges. The disposition that can safely be reported from the text is that the complaint was found proven.
Second, the reasons do not fully reproduce or analyse all elements of s 96E(1), nor do they set out a formal evidential test for proving a threat. The decision focuses on the meaning of “threaten” and whether the facts accepted by the Magistrate satisfied the allegation. It should not be treated as a complete account of every issue that could arise under the section.
Third, the judgment does not explain how the alleged conversation was resolved in the face of the defendant’s denial beyond its evaluation of the witnesses and surrounding circumstances. It records that two witnesses could not recall what was said, but does not set out a broader discussion of credibility doctrine or a detailed treatment of each evidentiary conflict.
Fourth, the decision distinguishes the union-membership issue from compliance with site safety and administrative requirements, but it does not explore how a mixed-motive situation would be assessed if an employer or site operator relied on both legitimate access requirements and union membership. Nor does it set out what evidence would be sufficient in other cases.
Finally, the supplied material gives no later judicial history. Whether later courts have applied or confined the decision, and how the statutory provisions have since been amended or interpreted, cannot be answered from this judgment alone.
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CITATION NO. 2003 WAIRC 10243
_______________________________________________________________________________
Complainant Mr R Bathurst (of Counsel) of the Crown Solicitor's Office
Defendant Ms K Scoble (of Counsel) of The Construction, Forestry, Mining and Energy Union of Workers
_______________________________________________________________________________
_(1) An award, industrial agreement or order under this Act, or any arrangement between persons relating to employment must not - _
(i) to become or remain a member of an organisation;
(iii) not to become a member of an organisation; or
(iv) to treat another person less favourably or more favourably according to whether or not that other person is, or will become or cease to be, a member of an organisation;
(b) confer on any person by reason of that person's membership or non-membership of an organisation any right to preferential employment or to be given preference in any aspect of employment.
(2) The prohibition in subsection (1) extends to awards, industrial agreements, orders and arrangements that are in force at the commencement of section 28 of the Industrial Relations Amendment Act 1993.
(3) A requirement that is contrary to this section is of no effect.
_(1) A person, including an organisation of employees, must not threaten that - _
(a) discriminatory action will or may be taken against a second person; or
(b) the free and lawful exercise of a second person's trade, profession or occupation will or may be interfered with,
by reason of the circumstance that the second person or a third person is not a member of an organisation of employees.
Penalty applicable to subsections (1), (2) and (3):
(a) in the case of an individual not less than $400 nor more than $5 000;
(b) in any other case, not less than $1 000 nor more than $10 000; and a daily penalty of $500.
"threatened that the free and lawful exercise of the occupation of Jeffrey Robert Gomm would be interfered with by reason of the circumstance that Jeffrey Robert Gomm was not a member of an organisation of employees."
At the commencement of proceedings the following was agreed:
There was no issue with the evidence that the Whitford City Shopping Centre at Hillarys was being developed by Westfield Ltd and that the Defendant was employed as a workplace delegate on that site.
Jeffery Robert Gomm, the person referred to in this complaint, gave evidence that he was a registered builder and tile fixer. He resides in Albany and usually works in the Great Southern region.
During November 2002 Mr Gomm contracted to do some tiling work in the Jeans West store on the Whitford City Shopping Centre building site. He gave evidence of his attendance at the site, the preliminary work he carried out and his dealings with Steven Evans, a site safety representative.
There appears little doubt on the evidence that Mr Gomm had entered the site and carried out work without complying with the site requirements or Westfield policy in relation to reporting to the site office, attending an induction session, taking part in an inspection of the work area or having his tools, particularly electrical items, and equipment checked and tagged. There was also an issue with deliveries of products onto the site without being properly labelled.
I also accept that Mr Gomm received assistance from site safety officers to satisfy some of those requirements.
It was during this time that Mr Gomm attended at a union site office with the safety officer where he met the Defendant and another safety officer, Robert Thomson. Mr Gomm has given evidence that it was then that the Defendant spoke about union membership. He was told, he said, by the Defendant:
"If you want to work here you have to join up. You are not exempt because you come from Albany."
"Everyone here has good conditions and we don't want that undermined. If you want to work here you can join up or fuck off back to Albany to work for scabby builders."
He said the Defendant was quite aggressive and raised his voice. Mr Gomm gave evidence that he felt intimidated and bullied and the others in the site office joined in supporting the Defendant's views.
After telephoning the organisation which was employing him, Mr Gomm said he came to an agreement that they would reimburse him for the cost of joining the union so he returned to the site office and paid to join the union himself and for the person who would be helping him and who would be arriving the next day.
Mr Gomm gave evidence that he had never been a member of any union explaining that there was no need to because "I negotiate my own rates and arrange my own conditions". He was on the Whitford site because he had "won a contract" to do some tiling at the Jeans West shop.
The Defendant, Mr Kelly, denies the allegation that he made any threats to Mr Gomm forcing him to join the union. In effect his evidence is that Mr Gomm joined the union of his own free will and because he wanted to.
Three witnesses were called to give evidence in support of the Defendant's case. All gave evidence about their responsibilities on site and their dealings with Mr Gomm, including the problems each experienced and the resolution of certain issues including safety issues.
Mr Stephen Evans, a site safety representative, gave evidence of his involvement with Mr Gomm. He was not involved with Mr Gomm joining the union and, while he admits he was in the union site office, he could not remember any conversation between the Defendant and Mr Gomm.
Likewise, Mr Robert Thompson, the other site safety representative involved, remembers the Defendant and Mr Gomm in conversation but does not remember what they were talking about. As he said, he was "busy doing other things".
The Defendant readily admitted his strong belief in the CFMEU and unionism generally. He agreed in cross-examination that he believed unionism works best if every eligible member joins a union and said they should join. He also agreed that it was his belief that there should not be any non-unionists on site.
When the Defendant was asked what was meant by the "NO ticket NO start" notices around the site and on the union site office he explained:
"It just basically means what it says. The members choose to work on the job, they want - - they are fully unionised and they put those stickers up to give that message to people"
While there can be no criticism of the Defendant for his strong beliefs in regard to union membership and the benefits it might provide to those who join, the reality is that his beliefs can not override the legislative right of worker's choice.
Much of the evidence given during the hearing of this case related to matters peripheral to the issue of Mr Gomm joining the union and were not particularly relevant to that issue.
It is clear from the evidence that Mr Gomm left the site because of problems he had complying with the legitimate site and safety requirements.
In view of the evidence generally, however, I do not believe it supports a credible finding that Mr Gomm had a choice whether or not he joined the union. I accept Mr Gomm's evidence that he would not have joined the union had he had a choice and that he did join because, as he said, he "felt really intimidated and felt bullied during his discussions with the Defendant about joining the union".
It was Mr Gomm's evidence that he "didn't think there was any way out of it" so he telephoned the shop fitters he was working for and that they agreed to reimburse him for two union tickets. He then completed an application form to join the union and wrote out a cheque for $604.00 to pay for himself and Mr Brand who was to start work with him on the following day.
It is interesting, I believe, that Mr Brand's fees were paid in his absence and before he had applied to join the union. It is consistent with Mr Gomm's conclusion that neither he nor Mr Brand could work on site unless they both were union members.
An element of the complaint is that the Defendant threatened Mr Gomm. I have been referred to a decision of the Industrial Magistrate's Court in Allan Graham Shuttleton v James Wilson 76 WAIG 1175 where my brother Whitely IM considered the meaning of the word "threat". I agree with his conclusion that:
"... the legislative intent in regard to the word "threaten" as it appears in section 96E(1) (of the Act_) was to cover those instances of acts and words made for the purpose of intimidating, pressuring or coercing a person to join a Union._"
Lorraine Field
Anthony Kelly [2003] WAIRComm 10243
The court found the complaint proven. The supplied reasons do not record a penalty or sentence.