CFMEU v Hadgkiss

• Jurisdiction: Australia Federal only
• Court: Full Federal Court (Australia)
• Judgment Date: 20 December 2007
• Neutral Citation: [2007] FCAFC 197
• Date: 20 December 2007

FEDERAL COURT OF AUSTRALIA

CFMEU v Hadgkiss [2007] FCAFC 197

WORKPLACE RELATIONS – representation made by union officer about employees’ obligation to join union – finding by primary judge that union official did not understand what he said was wrong – whether contravention of s 298SC requires that representation was intentionally false or misleading – whether representation that is false or misleading in fact contravenes s 298SC

WORDS AND PHRASES – “false or misleading”

Trade Practices Act 1974 (Cth) s 52(1), s 53, s 53(a), s 53(e), s 53(ea), s 53(eb), s 53(f), s 53(g), s 53A(1)(b), s 59(1), s 75AZC, s 75AZC(1)(g), s 75AZC(1)(h), s 75AZC(1)(i), s 75AZC(1)(j), s 75AZC(1)(k), s 75AZC(2), s 75AZD(1)(b), s 75AZD(5), s 75AZM(1), s 75AZM(3), s 75B(1)(c), s 76(1)(e), s 78(e), s 79(1)(c), s 80(1)(e), s 85(1), s 152DH, s 155(5), s 155B(3)(b)

Workplace Relations Act 1996 (Cth) s 4(7), s 170VP, s 170VV(2), s 170WG, s 170WG(2), s 298A, s 298B(1), s 298D, s 298K, s 298L, s 298M, s 298N, s 298P, s 298Q, s 298R, s 298S, s 298S(3), s 298S(4), s 298SA, s 298SA(2), s 298SB, s 298SC, s 298SC(a), s 298SC(b), s 298SC(c), s 298P(3), s 298U(a), s 298V, s 307(1), Schedule 1B: s 52(3), s 104(3), s 175, s 176, s 192(3), s 198(8), s 233(3), s 237(3), s 257(10), s 337(1)

Australian Workers’ Union v BHP Iron-Ore Pty Ltd (2001) 106 FCR 482

BHP Iron Ore Pty Ltd v Australian Workers’ Union (2000) 102 FCR 97

Coco v The Queen (1994) 179 CLR 427

Craig Williamson Pty Ltd v Barrowcliff [1915] VLR 450

Davidson v Watson (1953) 28 ALJ 63

Employment Advocate v Williamson (2001) 111 FCR 20

Fraser v NRMA Holdings Limited (1995) 55 FCR 452

Given v C V Holland (Holdings) Pty Ltd (1977) 15 ALR 439

Global Sportsman Pty Ltd v Mirror Newspapers Pty Ltd (1984) 2 FCR 82

Hadgkiss v Construction Forestry Mining and Energy Union [2007] FCA 524

Hadgkiss v Sunland Constructions Pty Ltd [2007] FCA 346

Houssein v Under Secretary, Department of Industrial Relations and Technology (NSW) (1982) 148 CLR 88

Johnson Tiles Pty Ltd v Esso Australia Pty Ltd (2000) 104 FCR 564

K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 157 CLR 309

Marleef Pty Ltd v Metcash Trading Ltd [2001] FCA 1316

Murphy v Farmer (1988) 165 CLR 19

Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355

Registrar of Titles (WA) v Franzon (1975) 132 CLR 611

Rich v Australian Securities and Investments Commission (2004) 220 CLR 129

Riley McKay Pty Limited v Bannerman (1977) 15 ALR 561

Sternberg v R (1953) 88 CLR 646

CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION, CONSTRUCTION, FORESTRY, MINING AND ENERGY, INDUSTRIAL UNION OF EMPLOYEES, QUEENSLAND AND DANNY MICHAEL OSKAM v NIGEL CLIVE HADGKISS, SUNLAND CONSTRUCTIONS PTY LTD AND SAEID ESHRAGI

QUD 112 OF 2007

NORTH, LANDER AND BUCHANAN JJ

20 DECEMBER 2007

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QUD 112 OF 2007

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION First Appellant CONSTRUCTION, FORESTRY, MINING AND ENERGY, INDUSTRIAL UNION OF EMPLOYEES, QUEENSLAND Second Appellant DANNY MICHAEL OSKAM Third Appellant
AND:	NIGEL CLIVE HADGKISS First Respondent SUNLAND CONSTRUCTIONS PTY LIMITED Second Respondent SAEID ESHRAGHI Third Respondent

JUDGES:	NORTH, lander AND BUCHANAN JJ
DATE OF ORDER:	20 DECEMBER 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The appeal is dismissed.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QUD 112 OF 2007

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION First Appellant CONSTRUCTION, FORESTRY, MINING AND ENERGY, INDUSTRIAL UNION OF EMPLOYEES, QUEENSLAND Second Appellant DANNY MICHAEL OSKAM Third Appellant
AND:	NIGEL CLIVE HADGKISS First Respondent SUNLAND CONSTRUCTIONS PTY LIMITED Second Respondent SAEID ESHRAGHI Third Respondent

JUDGES:	NORTH, Lander AND BUCHANAN JJ
DATE:	20 DECEMBER 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

NORTH J:

1 This appeal raises a question of the construction of s 298SC of the Workplace Relations Act 1996 (Cth). The section provides:

A person must not make a false or misleading representation about:

(a) another person’s liability to pay a bargaining services fee; or

(b) another person’s obligation to enter into an agreement to pay a bargaining services fee; or

(c) another person’s obligation to join an industrial association.

2 The question is whether the words ‘false or misleading’ in this section mean purposely false or misleading or whether they mean false or misleading in fact.

3 The primary judge held that false or misleading means false or misleading in fact. Thus, the maker of such a representation may contravene the section notwithstanding that the person does not know that the representation is false or misleading, and thus, does not intend to make a representation of that character.

4 The facts which give rise to the construction question are set out in the judgment of Buchanan J and there is no need to repeat them.

5 A relevantly identical question was determined in Murphy v Farmer (1988) 165 CLR 19 (Murphy). The majority (Deane, Dawson and Gaudron JJ) held that the word false meant purposely, deliberately, or intentionally untrue. It follows from an application of Murphy that the appeal should be allowed.

6 In Murphy the Court considered the construction of s 229(1)(i) of the Customs Act 1901 (Cth) which provided for the forfeiture of goods in respect of which a representation that was false or wilfully misleading was made. The reasoning of the majority took the following steps:

· The word ‘false’ viewed in isolation contains a latent ambiguity. It can mean either ‘untrue’ or ‘wrong’ on the one hand, or ‘purposely untrue’ on the other hand: at 26.

· The arguments concerning the meaning of the word ‘false’ in s 229(1)(i) of the Customs Act were evenly balanced and did not resolve the latent ambiguity: at 28.

· The provision was penal or quasi-penal in character: at 28-29.

· The rule should be applied that where the words are equally capable of a construction which would inflict the penalty and one which would not, the latter should be adopted. The rule was explained thus at 28-29 as follows:

… The provision is, in our view, properly to be seen as penal or quasi-penal in character and as attracting the rule that ‘[t]hose who contend that [a] penalty may be inflicted, must shew that the words of the Act distinctly enact that it shall be incurred under the present circumstances. They must fail, if the words are merely equally capable of a construction that would, and one that would not, inflict the penalty’: Dickenson v. Fletcher (1873) L.R. 9 C.P. 1, at p.7. In Lyons v. Smart (1908) 6 C.L.R. 143, at pp. 157-158, Barton J. quoted the above words of Lord Esher (then Brett J) in Dickenson v. Fletcher with approval and continued:

It is as true now as when Blackstone wrote it, that ‘The law of England does not allow of offences by construction’. To these expressive authorities I may add, for the sake of the clear way in which it is put, a quotation from the American case of United States v. Lacher (1890) 134 U.S. 624, at p. 628. The words are those of Fuller C.J. delivering the opinion of the Court. He said: “As contended on behalf of the defendant, there can be no constructive offences, and before a man can be punished, his case must be plainly and unmistakably within the Statue.

(See also, as to the need to read such a provision “strictly”, Forbes (1971) 126 C.L.R., at pp. 442, 447.

7 The first respondent relied on two arguments which in effect address the second step in the reasoning in Murphy. The arguments needed to establish that the latent ambiguity was resolved by reference to the context of the Act viewed as a whole. It could not be resolved where equally compelling arguments existed for both constructions.

8 The first respondent contended that the context in which the section appears resolves any ambiguity. Section 298SC was added to Part XA which deals with freedom of association. The detailed provisions of the Part are explained in the judgment of Lander J and need not be set out again in these reasons. The first respondent argued in his written submissions:

The purpose of Part XA is not advanced by requiring that any false representations be deliberately incorrect. Indeed, to impose a requirement of knowledge of falsity of the representation is at odds with the stated purpose of Part XA to protect freedom of association.

9 It cannot be said that limiting the prohibition of making false or misleading representations to those made knowingly does not advance the purpose of freedom of association. It is not, as was submitted by the first respondent, at odds with such a purpose. The construction for which the first respondent contends may advance the purpose of Part XA to a greater degree by providing a wider net of prohibited conduct, but both constructions advance the purpose of Part XA.

10 In the second argument, the first respondent drew attention to many examples in the Act where the making of false or misleading statements is proscribed, and in each case there is an express requirement that the statement be made knowingly. The sections referred to were ss 170VP, 170WG, 307(1) and a number of sections in Schedule 1B to the Act, namely, ss 52(3), 104(3), 175, 176, 192(3), 198(8),...