COERCION
99 The applicant's case under s 43 of the BCII Act with respect to Mr Mates' organising of the work stoppage on 31 July 2006 is that it was done with intent to coerce Kane to employ, engage or designate a labourer with occupational health and safety responsibilities. This case requires inquiry at two levels: first, did Mr Mates organise the stoppage in order to have Kane do that, and if so, secondly, did this amount to coercion?
100 As to the first aspect, Mr Mates' evidence was that the purpose of his visit to the site on 31 July 2006 was to see whether any of the safety issues which he claimed to have pointed out on 28 July had been addressed. He said that the purposes of his discussions with Mr Leonard "were all about trying to help the bloke; safety". Mr Mates did not give direct evidence of his purpose in suggesting to the workers in the meeting that they ring their employers and ask to be relocated. How such a procedure might have advanced his purpose of trying to help Mr Leonard with matters of safety was left obscure in the respondents' case. However, assuming that the provision of help for Mr Leonard was a concern of Mr Mates, the most obvious way for that to have been achieved would have been for Kane to be prevailed upon to employ or engage additional labour for the site. The same might be said if Mr Mates' concern was to bring about an improvement in the general condition of the site and of the amenities. That Mr Mates had either or both of these concerns would in no sense have been inharmonious with a direct insistence by him that such labour be employed or engaged.
101 The identification of Mr Mates' purpose on 31 July 2006 is, of course, an objective matter to be done in the light of all the circumstances existing at the time. Had the evidence been such as to justify the conclusion that no union organiser, viewing the matter objectively, could have considered it safe for his or her members to continue working on the site that day, the case for supposing that Mr Mates' purpose was to protect the workers from an immediate risk to their health or safety would be that much stronger. However, I could not reach that conclusion on the evidence in the case.
102 It is instructive that two witnesses (Mr Rand and Mr De Riva), both apparently quite independent of the parties and having no reason to be sympathetic to the cause of either, and each called by a different party, used the same expression to describe the condition of the site: "below average". Mr Mates' own emphasis on the need for Mr Leonard to be provided with assistance also suggests that this was a site that needed attention, not one on which a worker could not reasonably be asked to work. I consider that the condition of the amenities, even if as described by Mr Mates, did not give rise to an immediate, or even to a reasonably proximate, risk to the health or safety of the workers. It was not explained, for example, how full and overflowing refuse bins in the lunch room might have done so. Perhaps such matters - and generally unclean conditions in the toilets for example - might have raised legitimate concerns about risks to the health of workers, but no (eg professional) evidence dealt with this dimension of the problem as perceived by Mr Mates. In the respondents' case, it was as though it should be self-evident that the muddy and generally unclean condition of the site amenities was necessarily such as to give rise to risks of this sort. In the view I take, it is not. In short, I am not persuaded that it ought reasonably to have appeared to an organiser in the position of Mr Mates that, on health and safety grounds as such, work should not continue at all on the site on 31 July 2006.
103 Putting these considerations together with my earlier finding that Mr Mates had required (on 28 July) the employment of a labourer and with Mr Mates' own evidence that he told Mr Leonard (on 31 July) that nothing had changed "in regards to getting you some help", I am led to the clear conclusion that a substantial, if not the only, intent of Mr Mates, when he addressed the workers in the meeting on 31 July 2006 was that Kane should be influenced (to use a neutral term at this stage) to employ or to engage such a labourer. In Hanley v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (2000) 100 FCR 530, 541 [45] the Full Court said:
Section 170NC is contravened if a person engages in conduct intending to coerce a person to agree to make an EBA even if the conduct has one or several other purposes or objectives. It is, to adopt the language of General Motors Holden Pty Ltd v Bowling (1976) 51 ALJR 235, sufficient that the proscribed reason is a substantial or operative reason.
Because of the similarity of language, I accept that their Honours' observation applies just as much to s 43 of the BCII Act as it did to s 170NC of the WR Act with which they were concerned. In the present case, the intent to have Kane employ, engage or designate a labourer was not only operative in Mr Mates' thinking at the time, but was substantially so.
104 I note that the paragraphs of s 43(1) are expressed disjunctively, such that conduct directed to any one or more of those ends would fall within the terms of the section. In these reasons, I have generally not discriminated between the employment (par (a)) or the engagement (par (b)) of a labourer by Kane as the subject of Mr Mates' intention on 31 July 2006. To the extent that it matters, I would find that the essence of what Mr Mates required (and thus of what he intended should happen) was the employment of a labourer by Kane. There was a suggestion by the respondents that, at some point, Mr Mates may have made it clear that he would be content for an employee of one of the subcontractors engaged on the site to be designated (see par (d) of the definition), but how this might have worked was not developed in submissions. The thrust of Mr Mates' conversations with representatives of Kane at all levels was that a labourer should be employed for the site and should be employed by Kane. However that may be, on any view Mr Mates' intent was such as would be comprehended by at least one of the paragraphs in s 43(1) of the BCII Act.
105 As to the question whether Mr Mates' intent was to coerce Kane to that end, it was common ground that the test of coercion is that stated by Merkel J in Seven Network (Operations) Limited v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (2001) 109 FCR 378, 388 [41]:
The above cases establish that there must be two elements to prove "intent to coerce" under s 170NC(1). First, it needs to be shown that it was intended that pressure be exerted which, in a practical sense, will negate choice. Second, the exertion of the pressure must involve conduct that is unlawful, illegitimate or unconscionable.
In other words, in the context of the present case it must be shown that Mr Mates not only intended that Kane should be influenced to employ or engage a labourer, but that its choice whether to do so or not should effectively be negated; and that the action taken to that end be unlawful, illegitimate or unconscionable.
106 The question whether Mr Mates intended that Kane's choice whether to engage a labourer should be negated is, of course, a different one from whether he intended that the workers should have a choice whether to ask their employers for relocation or that the employers should have a choice whether to accede to any such request, if made. It may be supposed to be consistent with my earlier findings in these reasons that Mr Mates gave the workers a choice; and that (following Mr Mates' suggestion) the workers gave their employers a choice. But Mr Mates called the meeting and addressed the workers with a view to persuading them to have themselves taken off the site, and thus to shutting the site down, as he had told Mr Leonard he would do. His purpose was that these things should happen. And when they did happen, the position in which Kane found itself was very different from that which confronted Mr De Riva and, inferentially, the management at BV Rigging.
107 Mr Mates' conduct on 31 July 2006 did, in my view, bespeak an intention to negate choice. It is possible to surmise that Kane had an element of choice on 28 July, and that Mr Mates then intended to return to the site on 31 July to see whether a labourer had been employed. However, by the time he arrived on site on 31 July, Kane had made its decision and refused to engage a labourer. It was that refusal which led to the holding of the meeting of workers and to the stoppage of work on site. By proceeding in this way, Mr Mates was rejecting the choice which Kane had made. Further, Mr Mates' action was taken on a day which - as would have been apparent to him - marked the commencement of a significant stage in the building works being carried out by Kane, namely, the erection of structural steel. Mr Leonard described it as a "critical path item". The disruption to the building program brought about by a stoppage on 31 July 2006 would, I infer, have been rather more damaging to Kane than if done on a day on which (to use Mr Leonard's words) only "mundane work" was taking place. As a very experienced industry worker and union organiser, this circumstance would have been apparent to Mr Mates. I find that his intent on 31 July 2006 was that Kane should have no choice but to employ, engage or designate a labourer in an occupational health and safety-cum-peggy role.
108 That brings me to the question whether the action which Mr Mates took on 31 July 2006 was unlawful, illegitimate or unconscionable. The only respect in which counsel for the applicant submitted that the action was unlawful was that it was in contravention of s 38 of the BCII Act. Since I have rejected that part of the applicant's case, I would likewise reject the submission that Mr Mates' actions were unlawful.
109 Was it illegitimate for Mr Mates to seek to achieve his purpose of having Kane employ a labourer on the site by organising the workers to have themselves relocated elsewhere, thereby bringing about a stoppage of work on the site itself? He was careful to do so in a way that did not involve any obvious breach of the workers' contracts of employment. Whether the withdrawal of labour by subcontractors (Northwest Concrete and BV Rigging) was a breach of their contracts with Kane was unclear: as matters were left in the evidence, I could not hold that it was in either case. However, the subcontractors had sent their employees to work on the site in accordance with normal commercial arrangements made by Kane and for the purpose of carrying out tasks which, at least to a significant extent, were on the critical path. It does not, in my view, require knowledge of the terms of the contracts between the subcontractors and Kane to conclude, as I do, that Kane was entitled - in a business if not a legal sense - to expect that, in the normal course, those employees would remain on site and carry out those tasks. It would, I consider, be rather odd for a court to hold that it was perfectly alright for a stranger to the relationship between the subcontractors and Kane to prevail upon the employees of the former to make a request to their employers that they be taken off site. I express these views not to suggest that they reflect anything like the actual situation on the site on 31 July 2006, but rather to establish a base-line of normality, as it were, by reference to which it should then be regarded as lying upon the respondents to establish that the situation on the site was such as to give legitimacy to Mr Mates' actions.
110 It is implicit in the respondents' case that the legitimacy of Mr Mates' actions should be assessed in the context of his concerns about the condition of the site, and of the amenities in particular. However, the question of legitimacy is to be objectively determined. I have held that the situation existing on the site was not such as would have justified a union organiser taking the reasonable view that no work at all should be done, and that the site should effectively be shut down, on health and safety-related grounds. I would hold, therefore, that the concerns which Mr Mates in fact held about those matters were not as such sufficient to legitimise the action which he took.
111 But Mr Mates' action should not be considered in isolation from the regulatory framework in which both he and Kane operated. Commencing with the OH&S Act, it is only upon an inspector reasonably believing that an activity occurring, or which may occur, at a workplace that involves, or would involve, an immediate risk to the health or safety of a person that he or she may issue a notice prohibiting the carrying on of the activity, either at all or in a specified way: s 112. The Act does not contemplate that workers might remove themselves from a workplace or that a union organiser might persuade them to do so. Mr Mates did not arrange for an inspector to attend the site on 31 July 2006 in order to exercise power under s 112. Within the scheme of the OH&S Act, therefore, Mr Mates' actions ought not to be regarded as legitimate.
112 There was no evidence that Northwest Concrete was covered by a certified agreement, in which circumstance I infer that the only instrument binding on it under the WR Act was the award. I have referred (in par 57 above) to the disputes resolution procedure for which cl 11 provided. However, given the evidence of Mr De Riva, it is apparent that there never was a dispute between Northwest Concrete and any of its employees working on the site. I consider, in the circumstances, that the provisions of the award were neutral with respect to the legitimacy of Mr Mates' actions.
113 The employees of BV Rigging (who appeared to have been the majority on the site on 31 July) were covered by the BV agreement. It is apparent from the provisions of that agreement relating to health and safety to which I have referred (see par 55 above) that a cessation of work, or the reassignment of employees to alternative work, is regarded as an exceptional procedure arising from the existence of an immediate threat to the health or safety of a person and the inability of the parties directly involved to adopt the processes for which cl 16.3 provides. Although the provisions of the agreement do not in terms proscribe the cessation of work, or a demand for reassignment, it is the tolerably clear contemplation of the provisions that work will continue in the normal way unless the exceptional circumstances referred to in cl 16.4.1 exist.
114 It is true, of course, that, as between BV Rigging and its own employees, there is nothing in the BV agreement that would stop them agreeing that the employees should be relocated to a different site. Indeed, at that level, such an agreement could be reached for any reason that attracted itself to those parties. I could not find, therefore, that the employees' request to BV Rigging to be relocated, or that BV Rigging's accession to that request (each of which I have inferred) was illegitimate. However, the question is whether Mr Mates' action should be regarded as illegitimate along the axis between himself and Kane. Mr Mates was an organiser in the employ of the union. The union was a party to the BV agreement. BV Rigging was contracted to Kane to perform work on the site on 31 July 2006. In the circumstances, I consider it appropriate to have regard to the terms of the BV agreement, and to the regime for the orderly processing of the health and safety-related issues for which it provides, when considering whether Mr Mates' response to Kane's refusal to employ or engage a labourer was a legitimate one. Against the reference point provided by those terms, I do not consider that the response was legitimate.
115 I have referred also to the disputes resolution procedure contained in cl 10 of the BV Rigging agreement (see par 54 above). There is no direct evidence of the reaction of BV Rigging itself to its employees' request to be relocated (the existence of which request I have inferred). However, it seems clear that the concern for their own health and safety which Mr Mates excited in those employees should be regarded as a "work related grievance" within the meaning of cl 10.2. As such, the proper course for the employees to have adopted in the circumstances was to continue working without interruption. For Mr Mates to have persuaded them to ask to be relocated could not be regarded as a legitimate reaction on his part to the conditions on the site as he perceived them.
116 Notwithstanding that there was no employee of Kane on the site at relevant times to whom the Kane agreement applied (except possibly Mr Leonard himself), both parties conducted their cases by reference to an assumption that, in relation to the amenities and site conditions generally, it was Kane, as manager of the site, which had the relevant obligations and it was by reference to the Kane agreement that those obligations were to be identified. Indeed, in his evidence Mr Mates made that assumption explicit. I shall proceed consistently with that assumption and consider the legitimacy of Mr Mates' actions in the light of this agreement.
117 In his cross-examination of Mr Leonard, counsel for the respondents drew attention to items 4.8 and 5.6 on the list in App E of the Kane agreement (see par 56 above). Mr Leonard said that he did clean and disinfect the facilities on a regular basis, and that, to the best of his knowledge, the closets and urinals were cleaned daily. He accepted that there may have been days when it was not done, but he could not recall any.
118 Counsel also cross-examined Mr Leonard on the subject of Kane's compliance with certain provisions of the codes of practice referred to in App H of the Kane agreement. The following provision appeared in Code of Practice No 13 under the heading "Dining Facilities":
Adequate dining facilities for taking meals, including sufficient tables and chairs and facilities for warming food should be provided. Facilities should also be provided for an adequate supply of boiling water at meal times and rest periods. Separate vermin proof containers should be provided for the storage of food and rubbish.
Counsel put it to Mr Leonard that, on the site, separate vermin-proof containers had not been provided for the storage of food and rubbish, but that the site "just had open bins". Mr Leonard said that the bins had lids; it was put to him that the bins did not have lids; and he said that he could not recall. The following provision also appeared in this code, this time under the heading "Sanitary Facilities":
Each closet and urinal should be washed with disinfectant at least daily and should generally be kept in a clean and tidy condition.
Here counsel put it to Mr Leonard that it had been his evidence (to which I have referred in par 20 above) that the closets and urinals were not cleaned "at least daily", and Mr Leonard appeared to accept that that had been his evidence
119 Code of Practice No 18 contained provisions about first aid rooms. There was a list of the items of equipment and furniture that "may be appropriate" for a first aid room. Mr Leonard accepted that the room at the site did not have a desk, a telephone or chairs, and that the first aid kit may have been kept in the site office, rather than in the first aid room. In other respects the items raised by counsel were, according to Mr Leonard, in the room. The code also provided that a first aid room should not be used for other purposes. It was put to Mr Leonard that the first aid room was used for the storage of construction tools, a circumstance which he could not recall.
120 Save in one respect, counsel for the respondents did not, in his final address, rely upon the provisions of the Kane agreement, or of the codes of practice, to which I have referred. I was not invited to find that Kane had failed to comply with any of the provisions thereof. I was not, at least explicitly, invited to find that those provisions, and/or Kane's non-compliance with them, gave legitimacy to Mr Mates' conduct on 31 July 2006. The one respect in which a point was made of App E of the Kane agreement was in counsel's reply. He submitted that, by showing Mr Leonard the respects in which the amenities did not comply with the appendix on 28 July, and by giving him until 31 July to rectify things, Mr Mates had allowed Kane a "reasonable time in which to rectify the problem" as required by the opening paragraph of the appendix.
121 I accept that, on 31 July 2006, Mr Mates did have concerns of the kinds implied by the cross-examination of Mr Leonard. Mr Mates elaborated upon a number of those concerns - albeit not specifically by reference to particular provisions of App E to the Kane agreement or of the codes of practice - in his own evidence in chief. However, his action in persuading the workers to prevail upon their employers to withdraw them from the site was not, in my view, either authorised or contemplated by these provisions. Had Mr Mates taken the view that conditions on the site were such that workers could not reasonably be asked to work there, there were, under the statutory and regulatory provisions to which I have referred, two courses of actions which he might have adopted. The first was to have an inspector under the OH&S Act attend the site and issue a prohibition notice. The second was to process the dispute with Kane under cl 10 of the Kane agreement. Mr Mates did initiate a referral of the dispute to the Panel under cl 10.2.f - for which he deserves credit - but there was no warrant in those provisions for him to have procured a stoppage of work as a preliminary to that referral.
122 As I have said, the Kane agreement treated health and safety in the workplace as a subject of particular importance. The relevant provisions were detailed and, for the most part, prescriptive. The application of, and compliance with, the OH&S Act was expressly contemplated. That Act contained a highly-defined regime of the circumstances in which work might be halted on account of a risk to health or safety. Only an inspector could issue a prohibition notice. The Kane agreement itself provided no authority for a union organiser to stop work on health and safety-related grounds. I consider that the agreement contemplated the existence of the regime for which the OH&S Act provided and, in that sense, contemplated that, subject to the overriding obligation of the employer under s 21 or of the site manager under s 26, work should continue in the absence of a prohibition notice. It was not, in my view, within the contemplation of the Kane agreement that an organiser in the position of Mr Mates might procure a stoppage of work in the circumstances existing on the site on 31 July 2006.
123 Before concluding on the subject of legitimacy, there are two further matters which I should address. The first is the exception for which par (g) of the definition of "building, industrial action" in s 36 of the BCII Act provides, namely, and subject to certain conditions, that it is not building industrial action for an employee to refuse to work where he or she has a reasonable concern about an imminent risk to his or her health or safety. Because I have rejected the applicant's case under s 38 of the BCII Act for other reasons, the occasion for the application of this exception does not arise. There may be a question whether the existence of facts which would bring the exception into operation would be relevant to the matter of legitimacy under s 43 of the BCII Act. I was not addressed on that point, and shall say nothing further about it. It will, however, be apparent from my reasons above that I do not consider that the facts of the present case provided any basis for a reasonable concern on the part of any employee on the site on 31 July 2006 about a then imminent risk to his or her health or safety.
124 The second matter concerns cl 11.1.2 of the award, the terms of which I have set out in par 57 above. Although the award was tendered by the applicant, his counsel said nothing in his address about this provision, or about cl 11 generally. Neither was I addressed on the relationship between cl 11.1.2 and the provisions of the certified agreements which dealt with the subject of the resolution of disputes. In the circumstances, save with respect to what I have said in par 112 above, I do not rely on that subclause in my consideration of whether Mr Mates' actions on 31 July 2006 were illegitimate.
125 For reasons expressed above, I consider that it was illegitimate for Mr Mates to have procured a stoppage of work on the site on 31 July 2006 as a means of having Kane employ or engage a labourer. By proceeding in the way he did, Mr Mates intended to coerce Kane. His conduct was, I would hold, in contravention of s 43(1) of the BCII Act.
126 That brings me to the last of the applicant's allegations under s 43 of the BCII Act, that Mr Mates' comments to Mr Leonard on 31 July 2006 that "we'll go through all this again" was a threat made with intent to coerce Kane. I have held (par 82 above) that it was a threat. Clearly it was said with intent to have Kane employ or engage a labourer. And, for reasons given above, it was illegitimate. That is to say, the comment amounted to a threat to do again what I have held was illegitimately done on 31 July 2006. In the circumstances, I uphold this allegation.