100213761

INDUSTRIAL MAGISTRATE’S COURT OF WESTERN AUSTRALIA

PARTIES JOSEPH LEE, DEPARTMENT OF CONSUMER AND EMPLOYMENT PROTECTION

COMPLAINANT

 -v-

 JOSEPH MCDONALD

DEFENDANT

CORAM Mr W Tarr I.M

DATE OF ORDER WEDNESDAY, 9 OCTOBER 2002

FILE NO/S CP 1 OF 2002

CITATION NO. 2002 WAIRC 06826

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Result Proven

Representation Mr R Andretich (of Counsel) appeared on behalf of the Complainant.

 Mr K Bonomelli (of Counsel) appeared on behalf of the Defendant.

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Reasons for Decision

(Given extemporaneously at the conclusion of the hearing, extracted from the transcript of proceedings and edited by His Worship)

The Defendant is charged that on 10 January 2002 at Perth he threatened that the free and lawful exercise of the occupation of Brajkovich & Son Demolition Pty Ltd would be interfered with by reason of the circumstance that Chris George and others, employees or contractors of Brajkovich & Son Demolition Pty Ltd, were not members of an organisation of employees.

That is a charge contrary to the provisions of section 96E(1)(b) of the Industrial Relations Act 1979 (the Act) which reads:

96E.    Discriminatory and injurious acts against persons because of non-membership of employee organization

(1)  A person, including an organization of employees, must not threaten that-

(a) …

(b) the free and lawful exercise of a second person's trade, profession or occupation will or may be interfered with,

by reason of circumstance that the second person or third person is not a member of an organisation of employees.

It is alleged by the prosecution that on 10 January 2002 a demolition company, Brajkovich & Son Demolition Pty Ltd (Brajkovich), together with another business, Perth Asbestos Removal Co, were demolishing two old grandstands at the Western Australian Cricket Association grounds (the WACA) at East Perth.  The prosecution claims that the Defendant, with two others, entered the site, stopping work and threatening that work would not be allowed to continue unless the employees of Brajkovich joined The Construction, Forestry, Mining and Energy Union of Workers (the CFMEU), a union registered pursuant to the Act.

A director of Brajkovich, Adrienne Brajkovich, gave evidence that he was at the WACA on 10 January 2002 and involved in the demolition of the two grandstands.  Because asbestos had been found, it was necessary for the involvement of Perth Asbestos Removal Co.

Mr Brajkovich gave evidence that at about 10.00 am the Defendant, who he knew, entered the site and approached him and told Mr Brajkovich that he wanted them to stop work.  He gave evidence that there was some discussion about an EBA “and signing the boys up”.

Mr Brajkovich said he was told by the Defendant “if we didn't join the union, work would stop”.  He gave evidence that he had no intention of joining the union, but joined to keep the job going, explaining that he had machinery on site and could not afford not to keep the job going.  He said he was concerned that the work may not continue and when he asked what he could do about keeping the job going, he said that the Defendant said “sign the boys up”.  He said the Defendant told him “if you join the boys up, we can keep the job going”.  Mr Brajkovich agreed to join the union and he paid $1300 for his membership and the membership of his four employees.  After they were all signed up, work continued.

An employee of the company, Christopher George, gave evidence that he would not have joined the union unless asked to do so by his boss, Mr Brajkovich.  He said he was not required to pay for his membership fees and did not intend staying in the industry, and, in fact, he said that he resigned from the union three weeks later when he resumed his studies. 

Another employee, Mr Pukie gave evidence that he had no intention of joining the union and only did so because he was told to.

The prosecution called a couple of other witnesses, including the witness Michael Southwell, who gave evidence that he was a journalist employed by The West Australian newspaper at that time.  He said that he attended the WACA on that morning at about 9.00 am.  He saw the Defendant outside, went to speak to him and he asked him what was going on.  He said the Defendant said “we're going to stop work on the site”.  He said that he was told that there were members of the union on the site that were not happy about non-union members working, and the Defendant was going to stop work to address the issue.  He went on to say that the Defendant told him he was going to stop work until the non-members had signed up.

Later in his evidence he said that one of the reasons for the union visiting the site was that there were non-union members on site.  The members of the union were not happy.  He went on to say that he explained to him that if the union members downed tools, work could not continue.

As is often the situation with witnesses in similar matters, Mr Brajkovich could not remember exactly the words that were used but, in my view on the evidence, he was left with the impression, as he said, that if he did not join the union, work would stop.

The Shorter Oxford Dictionary defines "threat" as "to press, urge, try to force or induce, especially by means of menaces," and if I find that it is the case that Brajkovich joined up because they were told the site would be closed down and work would not continue, then obviously that would be a threat within the meaning, I would have thought, of section 96E of the Act.

In relation to Mr Southwell's evidence, while that evidence is not evidence of a threat to the company through Mr Brajkovich, it supports Mr Brajkovich's evidence in that the Defendant was on site for the purpose of signing up non-members of his company, and is consistent with the Defendant saying to Mr Brajkovich that if they did not sign up, work would stop.

Mr Bonomelli raised the issue of whether or not the company, as such, was being threatened, but Mr Brajkovich has given evidence that his company was engaged to do the demolition work at the WACA and that he was a director of that company and operated the business.  In the context of the situation any threat to Mr Brajkovich was, in my view, a threat to the company.

The Defendant has elected not to give or call evidence, and that is his right.  The law is that no adverse finding can be made as a result of that.  However, the Defendant has not taken the opportunity to rebut the evidence given by the prosecution, which stands generally unchallenged except of course by the cross-examination of the witnesses.

It seems to me, on the evidence, fairly clear that Mr Brajkovich made the decision to join the union because the consequences of not joining, in his mind, were untenable.  As he said, he had workers on site.  He had machinery and other equipment which was on site, and it was going to be too costly for him not to join the union.  In his view, and I find it to be the situation, he had no choice.  It was either join the union or work would not continue at the WACA.

I find, on the evidence overall, that the charge has been proven. 

W Tarr 

Industrial Magistrate

(Editors note: The Defendant was subsequently fined $1000.00 and costs in the amount of $1313.00 were awarded to the Complainant.)