100320532

WESTERN AUSTRALIAN INDUSTRIAL MAGISTRATE’S COURT

PARTIES LORRAINE FIELD, Department of Consumer

 and Employment Protection

COMPLAINANT

 -v-

 ANTHONY KELLY

DEFENDANT

CORAM MAGISTRATE WG TARR IM

DATE THURSDAY, 4 DECEMBER 2003

COMPLAINT NO CP 7 OF 2003

CITATION NO. 2003 WAIRC 10243

_______________________________________________________________________________ 

Representation

complainant Mr R Bathurst (of Counsel) of the Crown Solicitor’s Office

Defendant  Ms K Scoble (of Counsel) of The Construction, Forestry, Mining and Energy Union of Workers

_______________________________________________________________________________

Reasons for Decision

1         The Defendant in these proceedings faces a prosecution brought pursuant to section 96E(1) of the Industrial Relations Act 1979 (the Act).

2         Section 96E is a section of Part VIA of the Act which is headed Freedom of association.

3         Section 96B of the Act provides:

(1) An award, industrial agreement or order under this Act, or any arrangement between persons relating to employment must not — 

 (a) require a person — 

 (i) to become or remain a member of an organisation;

 (ii) to cease to be a member of an organisation;

 (iii) not to become a member of an organisation; or

 (iv) to treat another person less favourably or more favourably according to whether or not that other person is, or will become or cease to be, a member of an organisation;

  or

 (b) confer on any person by reason of that person’s membership or non­-membership of an organisation any right to preferential employment or to be given preference in any aspect of employment.

(2) The prohibition in subsection (1) extends to awards, industrial agreements, orders and arrangements that are in force at the commencement of section 28 of the Industrial Relations Amendment Act 1993.

(3)  A requirement that is contrary to this section is of no effect.

4         It is clearly the intention of the legislation that whether or not a person joins an organisation (union) is the choice of that person.

5         Section 96E creates an offence under the heading of Discriminatory and injurious acts against persons because of non‑membership of employee organisation.

6         Section 96E(1) provides:

(1)  A person, including an organisation of employees, must not threaten that — 

(a)  discriminatory action will or may be taken against a second person; or

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

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

7         The section provides for the following penalty for any breach:

Penalty applicable to subsections (1), (2) and (3):

 (a)   in the case of an individual not less than $400 nor more than $5 000;

 (b)   in any other case, not less than $1 000 nor more than $10 000; and a daily penalty of $500.

8         The allegation against the Defendant is that on 28 November 2002 at Hillarys he:

“threatened that the free and lawful exercise of the occupation of Jeffrey Robert Gomm would be interfered with by reason of the circumstance that Jeffrey Robert Gomm was not a member of an organisation of employees.”

9         At the commencement of proceedings the following was agreed:

(a)   the Construction, Forestry, Mining and Energy Union of Workers (“CFMEUW”) is an organisation of employees registered under the Industrial Relations Act 1979(WA);

(b)   the Construction, Forestry, Mining and Energy Union (“CFMEU”) is an organisation of employees registered under the Workplace Relations Act 1996 (Cth);

(c)   Mr Kelly is a member of the CFMEU and the CFMEUW; and

(d)   Mr Kelly is a workplace delegate for the CFMEU and the CFMEUW.

10     There was no issue with the evidence that the Whitford City Shopping Centre at Hillarys was being developed by Westfield Ltd and that the Defendant was employed as a workplace delegate on that site.

11     Jeffery Robert Gomm, the person referred to in this complaint, gave evidence that he was a registered builder and tile fixer.  He resides in Albany and usually works in the Great Southern region.

12     During November 2002 Mr Gomm contracted to do some tiling work in the Jeans West store on the Whitford City Shopping Centre building site.  He gave evidence of his attendance at the site, the preliminary work he carried out and his dealings with Steven Evans, a site safety representative.

13     There appears little doubt on the evidence that Mr Gomm had entered the site and carried out work without complying with the site requirements or Westfield policy in relation to reporting to the site office, attending an induction session, taking part in an inspection of the work area or having his tools, particularly electrical items, and equipment checked and tagged.  There was also an issue with deliveries of products onto the site without being properly labelled.

14     I also accept that Mr Gomm received assistance from site safety officers to satisfy some of those requirements.

15     It was during this time that Mr Gomm attended at a union site office with the safety officer where he met the Defendant and another safety officer, Robert Thomson.  Mr Gomm has given evidence that it was then that the Defendant spoke about union membership.  He was told, he said, by the Defendant:

“If you want to work here you have to join up.  You are not exempt because you come from Albany.”

16     Mr Gomm said the Defendant went on to say:

“Everyone here has good conditions and we don’t want that undermined.  If you want to work here you can join up or fuck off back to Albany to work for scabby builders.”

17     He said the Defendant was quite aggressive and raised his voice.  Mr Gomm gave evidence that he felt intimidated and bullied and the others in the site office joined in supporting the Defendant’s views.

18     After telephoning the organisation which was employing him, Mr Gomm said he came to an agreement that they would reimburse him for the cost of joining the union so he returned to the site office and paid to join the union himself and for the person who would be helping him and who would be arriving the next day.

19     Mr Gomm gave evidence that he had never been a member of any union explaining that there was no need to because “I negotiate my own rates and arrange my own conditions”.  He was on the Whitford site because he had “won a contract” to do some tiling at the Jeans West shop.

20     The Defendant, Mr Kelly, denies the allegation that he made any threats to Mr Gomm forcing him to join the union.  In effect his evidence is that Mr Gomm joined the union of his own free will and because he wanted to.

21     Three witnesses were called to give evidence in support of the Defendant’s case.  All gave evidence about their responsibilities on site and their dealings with Mr Gomm, including the problems each experienced and the resolution of certain issues including safety issues.

22     Mr Stephen Evans, a site safety representative, gave evidence of his involvement with Mr Gomm.  He was not involved with Mr Gomm joining the union and, while he admits he was in the union site office, he could not remember any conversation between the Defendant and Mr Gomm.

23     Likewise, Mr Robert Thompson, the other site safety representative involved, remembers the Defendant and Mr Gomm in conversation but does not remember what they were talking about.  As he said, he was “busy doing other things”.

24     The Defendant readily admitted his strong belief in the CFMEU and unionism generally.  He agreed in cross-examination that he believed unionism works best if every eligible member joins a union and said they should join.  He also agreed that it was his belief that there should not be any non-unionists on site.

25     When the Defendant was asked what was meant by the “NO ticket NO start” notices around the site and on the union site office he explained:

“It just basically means what it says.  The members choose to work on the job, they want - - they are fully unionised and they put those stickers up to give that message to people”

      (Transcript page 38)

26     While there can be no criticism of the Defendant for his strong beliefs in regard to union membership and the benefits it might provide to those who join, the reality is that his beliefs can not override the legislative right of worker’s choice.

27     Much of the evidence given during the hearing of this case related to matters peripheral to the issue of Mr Gomm joining the union and were not particularly relevant to that issue.

28     It is clear from the evidence that Mr Gomm left the site because of problems he had complying with the legitimate site and safety requirements.

29     In view of the evidence generally, however, I do not believe it supports a credible finding that Mr Gomm had a choice whether or not he joined the union.  I accept Mr Gomm’s evidence that he would not have joined the union had he had a choice and that he did join because, as he said, he “felt really intimidated and felt bullied during his discussions with the Defendant about joining the union”.

30     It was Mr Gomm’s evidence that he “didn’t think there was any way out of it” so he telephoned the shop fitters he was working for and that they agreed to reimburse him for two union tickets. He then completed an application form to join the union and wrote out a cheque for $604.00 to pay for himself and Mr Brand who was to start work with him on the following day.

31     It is interesting, I believe, that Mr Brand’s fees were paid in his absence and before he had applied to join the union.  It is consistent with Mr Gomm’s conclusion that neither he nor Mr Brand could work on site unless they both were union members.

32     An element of the complaint is that the Defendant threatened Mr Gomm.  I have been referred to a decision of the Industrial Magistrate’s Court in Allan Graham Shuttleton v James Wilson 76 WAIG 1175 where my brother Whitely IM considered the meaning of the word “threat”.  I agree with his conclusion that:

“… the legislative intent in regard to the word “threaten” as it appears in section 96E(1) (of the Act) was to cover those instances of acts and words made for the purpose of intimidating, pressuring or coercing a person to join a Union.”

       (at page 1179)

33     He went on to conclude that the word was intended to convey a wider meaning than an intimidation of violence or injury.

34     I am satisfied on the evidence that the Defendant did threaten Mr Gomm to the extent that he had no choice but to join the union if he wanted to carry out the work he was contracted to do on the Whitford City Shopping Centre building site.

35     I find the complaint proven.

WG Tarr

Industrial Magistrate