Case Law: Office of the Fair Work Building Industry Inspectorate v CFMEU [2013] FCAFC 8 (Evidence)

The Full Court of the Federal Court has handed down its judgment in the case of Director, Office of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2013] FCAFC, ordering that that the appeal be allowed and the issues tried again before a differently constituted court. The case involved the allegation that a CFMEU member had attempted to apply undue pressure on non-union members to enter into enterprise bargaining agreements.

Background

Building company was Becon Constructions (Aust) Pty Ltd (‘Becon’) was undertaking construction of a shopping centre located at Epsom in Bendigo, Victoria.

Becon engaged Bendigo Scaffolding Pty Ltd to carry out bricklaying works as part of the project. Bendigo's manager was Robert Sawyer. None of the employees of Bendigo were members of the Construction, Forestry, Mining and Energy Union (CFMEU). 

Mr Bell was employed by the CFMEU. His job was to attempt to persuade employers to enter into enterprise bargaining agreements (‘EBAs’) with the CFMEU, and to persuade their employees to join the CFMEU.  Mr Bell was responsible for the region which included the Epsom site. 

Allegations at Trial

The appellant is the Director of the Office of the Fair Work Building Industry Inspectorate.  He alleges that both Mr Bell and the CFMEU tried to coerce Bendigo into making an EBA with the CFMEU. It was said that Mr Bell had threatened to take action to prevent Bendigo from starting work on the site at Epsom.

The Director also alleges that Mr Bell and the CFMEU discriminated against Bendigo on the basis that its employees were not covered by such an agreement. It was said that Mr Bell told the foreman and the project manager by way of telephone call that Mr Sawyer would not be starting on the site unless he signed an EBA and that Becon should not utilise his services as a bricklayer.

These actions are contrary to federal law, which in the context of the building industry prohibits a person from coercing or applying undue pressure to another into making an EBA, or to discriminate against an employer on the basis that its employees are not covered by an industrial agreement such as an EBA.

Mr. Bell's Defence

At trial, Mr Bell’s attested that he could not recall any of the discussions in question but that he was certain he would not have coerced Bendigo, as claimed by Mr Sawyer, or discriminated against Bendigo as Becon’s project manager and foreman claimed. 

His Honour accepted that Mr Bell had no actual recollection of the conversations with Mr Sawyer or the project manager or the foreman. He accepted that whilst Mr. Bell was unable to remember the conversations, he could be certain, by reference to his usual practice and also his training, that he would not have sought to coerce Mr Sawyer or discriminate against him.  This conclusion required his Honour to reject the accounts of the five separate conversations given by Mr Sawyer, the project manager and the foreman.

Appeal

The appellant put foward that the fact-finding by the trial judge was afflicted by error.  The most significant issues arising for determination were:

1) The cumulative effect of the evidence (Ground 1): The appellant submitted that his Honour had not taken into account that the testimonies of Mr. Sawyer, the foreman and the project manager corroborated each other's evidence.

The respondents’ submitted that the trial judge had considered all of the evidence.

Besanko and Perram JJ agreed with the appellant, and found that it was necessary for the trial judge to consider that corroborative effect if he was to discharge his obligation to consider all of the evidence. They concluded that "a central strength of the appellant’s case was that it had the word of three people against one.  Nowhere in the trial judge’s reasons is there any allowance for, or consideration of, that corroborative matter."

2) The totality of the evidence (Grounds 2 and 7): The appellant submitted that his case at trial had been so plainly established that it should be concluded that the trial judge had erred in not accepting it. 

Besanko and Perram JJ rejected this argument.  They reasoned that there were "a number of potential difficulties with the appellant’s case which makes it impossible for this Court to embrace that proposition."

3) The Browne v Dunn issue (Ground 5): 

Although the trial judge found Mr Bell had not said the things which were alleged against him, he nevertheless considered whether, if he had said them, they had been said intentionally. The appellant’s counsel did not cross-examine Mr Bell about his intention.

The trial judge concluded at [68] that he was not prepared to find that Mr Bell had acted intentionally since this had not been put to him, citing Browne v Dunn (1893). 

On appeal, the appellant contended that the principle only applied to matters in issue and that Mr Bell’s defence was not conducted on the basis that he did not intend to coerce, but rather that he had never said the words said to constitute the coercion.

Besanko and Perram JJ agreed with the appellant and concluded that the trial judge’s process of reasoning as to whether the coercion conversations occurred was in error. The trial was not conducted on the basis that intention was in issue.

Conclusion:

Besanko and Perram JJ concluded that "the omission of the trial judge to consider the corroborative effect upon each other’s testimony of the evidence of Mr Sawyer, the foreman and the project manager means there must be a retrial.  A substantial part of the strength of its case has been overlooked and must be bought to account in the fact finding process."

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