Case: Hanley v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2000] FCA 1188 ; (2000) 100 FCR 530
Outcome: referred to
Union is and was a "building association" within the meaning of s 4 of the Building and Construction Industry Improvement Act . Pursuant to s 69(1)(b) , "the following conduct in relation to a building association is taken to be conduct of the building association ... conduct of an officer or agent of the association acting in that capacity". Mr Mates was an officer of the association (s 69(3)) and acted in that capacity. At trial, counsel for the Union and Mr Mates made no argument to the contrary: see also Hanley v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2000] FCA 1188 ; (2000) 100 FCR 530 at [76] - [78] per Ryan, Moore and Goldberg JJ and Leighton Contractors Pty Ltd v Construction, Forestry, Mining and Energy Union (2006) 164 IR 375 at [33] per Le Miere J. Mr Mates' conduct is therefore taken to be the conduct of the Union. Should Mr Mates' intent to coerce Hardcorp for a prohibited reason be imputed to the Union? In order to answer this question, it is necessary to turn to s 826(1) of the Workplace Relations Act 1996 (Cth), which relevantly provides that: Where it is necessary to establish, for the purposes of this Act or the [Building and Construction Industry Improvement Act], the state of mind of a body corporate in relation to particular conduct, it is sufficient to show: (a) that the conduct was engaged in by an officer, director, employee or agent of the body corporate within the scope of his or her actual or apparent authority; and (b) that the officer, director, employee or agent had the state of mind. I have already found that Mr Mates had the requisite state of mind. There is a question as to whether Mr Mates engaged in the conduct "within the scope of his ... actual or apparent authority". There is no evidence of the scope of Mr Mates' actual authority. Having regard to the previous dealings between the Union and Mr Goss and his companies, however, and the admissions made by the Union (see [4] of the Defence), I am satisfied that Mr Mates acted within the scope of his apparent authority in respect of his conduct of 15 February 2006: see Hanley 100 FCR at [79]-[85]. In this regard, counsel for the Union and Mr Mates made no submission to the contrary. As already noted, the Union was an organisation for the purpose of s 43(2)(a) and therefore a person to whom the prohibition in s 43(1) might apply. Further, Hardcorp was a constitutional corporation for the purpose of s 43(2)(b) and, therefore, Mr Mates was a person to whom the prohibition in s 43(1) might apply. The latter would also be an alternative basis for supporting the application of the prohibition to the Union. Accordingly, I find that Mr Mates, in his own right, and the Union, through Mr Mates' conduct on 15 February 2006, breached s 43 of the Building and Construction Industry Improvement Act . The events of 16 February 2006 There was ample evidence that the picket was directed to recovering payments for sub-contractors and others to whom the Goss companies owed money. The picket followed immediately after the second creditors' meeting of Melbourne Transit (at which 2.4 cents in the dollar was offered to unsecured creditors). As noted above, on 23 February 2006, Mr Palmer observed that the picketers had handwritten signs that referred to "Goss needing to pay his debts". The picket line included creditors of Melbourne Transit. For reasons already indicated, I would accord little weight to Mr McMahon's uncorroborated evidence that he recognized only a "small percentage" on the picket line as subcontractors. The video evidence of the picket on 24 February 2006 showed that the then picketers were concerned with the repayment of debts. The evidence establishes that, on the balance of probabilities, the reason for the picket line was to pressure Mr Goss to make a better offer for the payment of debts than that made at the creditor's meeting on 21 February 2006. Apart from the fact that Mr Mates had stopped the crane the day before, there would have been very little reason for supposing that the picket was being organised so as to coerce Hardcorp to re-employ anyone or to allocate OH&amp;S responsibilities to any particular individual. I do not consider that the reason for stopping the crane can, without more, be treated as the reason for the picket, especially when the creditors' meeting had intervened and there was evidence to the contrary. Mr Cahill has therefore failed to establish that the reason proscribed in s 43 was a substantial or operative reason (or a substantial and operative reason) for the organising of the picket: see Hanley 100 FCR at 541 [44]-[45] and National Tertiary Education Union 117 FCR at 139 [98]; and compare General Motors Holden Pty Ltd v Bowling (1976) 12 ALR 605 at 616 per Mason J.