Case: Hanley v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2000] FCA 1188 ; (2000) 100 FCR 530
Outcome: followed
The next question is whether either or both of CFMEU and CFMEU NSW are liable for the conduct of Lane. The leading Full Court authority as to that question in relation to these provisions is Hanley v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2000] FCA 1188 ; (2000) 100 FCR 530, particularly at [48] [85]. It is not necessary to set that passage out. Lane's conduct was within the scope of his employment and his inferred actual and apparent authority as an officer of CFMEU. He was not on a frolic of his own. He was accompanied by other officials. Meetings took place at the Union office. The objective of entering into an EBA with LGB was a normal Union objective. The position in relation to CFMEU NSW is not quite so clear. Lane is a conference delegate. The later correspondence with the State President of CFMEU NSW did not repudiate his authority and it described those concerned collectively as "our Wollongong officials". The draft EBA proffered by Lane was with the CFMEU NSW. I am satisfied that he represented both organisations. 72 In my opinion, consistently with the reasons of the Full Court in Hanley [2000] FCA 1188 ; 100 FCR 530, each of CFMEU and CFMEU NSW was liable for breach of s 170NC by reason of the actions of Lane, both under the general law and pursuant to s 349 of the Act. I am also satisfied that Lane and those organisations can all be liable. The reasoning of Merkel J in Seven Network (Operations) Ltd [2001] FCA 456 ; 109 FCR 378 at [45] [47] to that effect receives support from the decision of the High Court in Houghton v Arms [2006] HCA 59 ; (2006) 225 CLR 553. 80 That gives rise to the issue of the liability of the Union for these breaches. The principles applying to a union's direct liability for breach of s 45D of the Trade Practices Act are broadly similar to those discussed in Hanley [2000] FCA 1188 ; 100 FCR 530, substituting s 45DC and s 75B of the Trade Practices Act for s 349 of the Workplace Relations Act . The Union argues that s 45DC was not pleaded and that reliance upon it is not open. The applicants do not accept that it needed to be pleaded or that failure to plead it has had any adverse evidentiary or forensic consequences to the respondents. Whether s 45DC should be pleaded is a difficult question, somewhat similar to that as to whether s 51A of the Trade Practices Act should be pleaded. However, on any view, the intention to rely upon it should be made clear in some way to avoid forensic disadvantage. Whether or not the section should have been pleaded, reliance upon it by the applicants was flagged in time for any adverse consequence to have been cured by the Union. It can be taken that all of the available evidence relevant to that provision has been led. No adjournment to lead further evidence was sought. The question of costs can be left open. 81 In my opinion, s 45DC is clearly applicable and catches both CFMEU and CFMEU NSW. Lane and Primmer were officials and members of the organisations in the way previously discussed. No attempt was made to rely upon s 45DD. I note that there is a conflict between the respondents as to this point. If s 45DC is applied, Lane and Primmer are relieved of liability for damages for the breaches (s 45DC(4)).