Wayne Edward Kelly and Construction, Forestry, Mining and Energy Union [1994] IRCA 180

IN THE INDUSTRIAL RELATIONS ) ) COURT OF AUSTRALIA ) Nos. NI 112 of 1994 ) NI 113 of 1994 NEW SOUTH WALES DISTRICT REGISTRY) NI 114 of 1994 BETWEEN: WAYNE EDWARD KELLY Prosecutor AND: CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION Defendant JUDGE: Moore J PLACE: Sydney DATE: 8 February 1995 REASONS FOR DECISION These are criminal proceedings in which three informations allege breaches by the defendant, the Construction, Forestry, Mining and Energy Union, of s335 of the Industrial Relations Act 1988 ("the Act"). At the close of the prosecutor's case counsel for the defendant made a submission that there was no case to answer in conformity with the practice discussed in May v O'Sullivan (1955) 92 CLR 654. I have decided there is. I do not propose to give detailed reasons: see R v Utans (1982) 29 SASR 592 at 594 though I will briefly outline my reasons for reaching this conclusion. The submission was made on essentially three grounds though they were expressed in a variety of ways during the oral and subsequent written submissions. The first was that the various offences involved conduct in which the specific intent of the defendant had to be established as an element of them: see He Kaw Teh v The Queen (1985) 157 CLR 525. The submission can be illustrated by reference to the charge in NI 112 of 1994 in which it is alleged that the defendant, by its officer Gary McArthur, encouraged or incited an employer, Fine Touch Painters and Decorators Pty Ltd ("Fine Touch") to take action in relation to one of its employees, Nick Spiroulias, to injure him in his employment because Spiroulias refused to join in industrial action. This account of the charge simplifies the allegation but it is a sufficient description for present purposes. It involves an alleged breach of s335(1)(a) which depends, in part, on the provisions of s334(1)(b). The submission made by the defendant was that it was necessary for the prosecutor to have established that the reason McArthur made a request that Spiroulious be removed from a building site was because Spiroulious had refused to engage in industrial action. This, the defendant submitted, it had failed to do. The evidence, as it presently stands, could sustain a finding that Spiroulious indicated he wished to work in the face of a direction or request by McArthur that he not work. If ultimately accepted, it could constitute evidence of a refusal to engage in industrial action as that expression is defined in s3 of the Act. The evidence could also sustain a finding that the request by McArthur that Spiroulious not work at that site occurred shortly after the refusal to engage in industrial action which is a matter I discuss shortly. Having regard to the terms of s335(3), I am not satisfied that there is no case to answer: see General Motors Holden Pty Ltd v Bowling (1976) 12 ALR 605 at 617 per Mason J and also Research and Development Engineering Pty Ltd v Lanham (1983) 49 ALR 351. A further submission made by the defendant was that the element of the offence arising from s334(1)(b), namely that the employee has refused to join in industrial action, required proof of industrial action and a prior refusal to engage in it. In my opinion that involves a narrow reading of the section that does not reflect Parliament's intention. Sections 334 and 335 are intended to protect an employee who behaves in a particular way from certain conduct of both employers and organisations in response to the employee's behaviour. They do so by proscribing that conduct. In so far as it concerns industrial action, it is intended to protect employees whether they act alone or as one of a number of employees. I do not accept that the intended effect of the section is to proscribe conduct of an employer or organisation when an individual employee has refused to engage in industrial action which is subsequently taken by fellow employees, but not to proscribe that conduct if all the employees in a group who are requested or directed to engage in industrial action refuse to take part in it and thus no industrial action occurs. It is sufficient for the prosecutor to establish that an employee was requested or directed to engage in industrial action and that he or she refused. The prosecutor has led evidence that could sustain such a finding. The next issue I consider involves a number of related matters raised by counsel for the defendant in its no case submission. The defendant is a registered organisation. It must act through individuals or groups of individuals. The conduct that the prosecutor seeks to attribute to it is the conduct of McArthur. The prosecutor is able to rely upon s335(4). I expressed some tentative views on the meaning of that section in a judgment I gave earlier in these proceedings: see (1994) 125 ALR 109. It relevantly provides that action done by an officer of a branch of an organisation acting in that capacity shall be taken to have been done by the organisation. I should also refer to s349(2)(a) which was relied upon by the prosecutor and relevantly provides that any conduct engaged in on behalf of a body corporate by an officer of the body corporate within the scope of his or her actual or apparent authority shall be taken, for the purposes of the Act, to have been engaged in also by the body corporate. An organisation registered under the Act, such as the defendant, is a body corporate: see s192. I am presently inclined to the view that the general provision found in s349(2) has no application to conduct that is said to constitute an offence under s335 given that s335 contains, in s335(4), a special provision dealing with the same subject matter. It is necessary to consider the evidence, in the context dealing with this no case submission, having regard to s335(4) and, if necessary, the common law principles dealing with the circumstances in which a corporation can be held criminally liable for the acts of its officers. The better view would appear to be that a provision such as s335(4) does not displace the common law: see Trade Practices Commission v Tubemakers of Australia Ltd (1983) 76 FLR 455 at 476 per Toohey J. A feature of these proceedings is that on the issue of the capacity in which McArthur was acting, the primary evidence is generally uncontentious, indeed much of it is documentary. Some of the evidence favours the case of the prosecutor that McArthur was acting in the capacity of an officer of a branch of the defendant. Some of it favours the case of the defendant that he was not. Much of the evidence that favours the defendant is not evidence that depends upon credibility of witnesses but rather involves inferences that might be drawn from primary facts. Those facts themselves are generally uncontentious though the inferences that should be drawn from them are not. It is clear from the authorities that I do not now address the question of whether the prosecutor has proved beyond reasonable doubt that McArthur was acting "in (the) capacity" as an officer of the defendant in the days in question as that expression appears in s335(4). I am to take the case of the prosecutor at its highest and proceed as if the inferences most favourable to it are drawn and those unfavourable to it are not drawn, though the better view is that it is to be done by reference to the criminal standard of proof: see R v Bilick (1984) 36 SASR 321 at 337, R v Myall (1986) 43 SASR 258, Myers v Claudranos (1990) 95 ACTR 1 and Gilbert v R (1992) 60 SASR 110 though there is a contrary view that it is not by reference to the criminal standard: see R v Briggs (1987) 24 A Crim R 98 at 104.9 per Burt CJ. I am satisfied that there is evidence that could establish beyond reasonable doubt that McArthur was acting in the capacity of an officer of the defendant when he engaged in the conduct the subject of these proceedings. To this point I have not addressed the submission of the defendant based on the alleged illegality of the conduct of McArthur. It was to the effect that the conduct of McArthur was an offence involving contravention of s545B of the Crimes Act 1900 (NSW) and s4A of the Inclosed Lands Protection Act 1901 (NSW). It was thus unlawful conduct and it should not be assumed to be authorised by the defendant in the way discussed by Keely J in GTS Freight Managers Pty Ltd v Transport Workers Union of Australia (1990) 25 FCR 296 and in the earlier authorities to which his Honour refers. As to the contravention of s4A of that latter Act, I am not presently satisfied that the evidence established any offence has been committed. As to s545B, I am not presently satisfied that the evidence establishes that McArthur used either violence or intimidation in the manner contemplated by s545B(1): see also s545B(2) as to the meaning of "intimidation", and accordingly I am not presently satisfied that McArthur's conduct was criminal. I have dealt with this last matter on the assumption that the tentative view I earlier expressed as to the proper construction of s335(4), which has been adopted by the defendant, and the nature of the evidence required to enliven its operation, is correct. For the forgoing reasons I find the defendant has a case to answer. I certify that this and the preceding six (6) pages are a true copy of the Reasons for Decision herein of his Honour Justice Moore. Associate: Date: 8 February 1995 Counsel for the Prosecutor: Mr P. Menzies QC with Mr M.A. Robinson Solicitor for the Prosecutor: Mr G. Johnston of the Building Industry Task Force Counsel for the Defendant: Mr M. Taylor Solicitor for the Defendant: Mr D. Reiss of the Construction, Forestry, Mining and Energy Union Date of hearing: 22-24 November 1994 Date of judgment: 8 February 1995