Cruse v Multiplex Limited

• Jurisdiction: Australia Federal only
• Court: Full Federal Court (Australia)
• Judgment Date: 05 November 2008
• Neutral Citation: [2008] FCAFC 179
• Date: 05 November 2008

FEDERAL COURT OF AUSTRALIA

Cruse v Multiplex Limited [2008] FCAFC 179

INDUSTRIAL RELATIONS – Trade union making claim for payment of wages for period of industrial action – Industrial action to coerce employer into making payment – Claim made and industrial action organised by shop stewards at workplace – Relevance of their knowledge as to whether their acts involved contraventions of law – Whether absence of evidence that they did know that their acts involved contraventions of law equivalent to evidence that they did not know – Whether distinction affected exercise of discretion in imposition of penalty – Relevance of union policy regarding reason for industrial action – Whether fact of acting in accordance with policy was mitigatory.

PENALTY – Contravention by trade union of statutory prohibition upon claims for payment of wages for periods of industrial action and upon industrial action to enforce such claims – Claim made and industrial action organised by shop stewards at workplace – Relevance of their knowledge as to whether their acts involved contraventions of law – Whether absence of evidence that they did know that their acts involved contraventions of law equivalent to evidence that they did not know – Whether distinction affected exercise of discretion in imposition of penalty – Relevance of union policy regarding reason for industrial action – Whether fact of acting in accordance with policy was mitigatory.

DECLARATIONS – Contested proceeding substantially settled by acceptance of applicant’s case – Contraventions of statutory provisions admitted – Whether declarations recording details of contraventions should be made – Whether merely involved a record of parties’ settlement – Utility of declarations in the circumstances.

Workplace Relations Act 1996 (Cth), ss 187AA, 187AB

Australian Competition and Consumer Commission v Francis [2004] FCA 487 (2004) 142 FCR 1
Australian Competition and Consumer Commission v High Adventure Pty Ltd [2005] FCAFC 247
Australian Competition and Consumer Commission v Midland Brick Co Pty Ltd (2004) 207 ALR 329
Carr v Higgins Coating Pty Ltd (2005) 148 IR 201
Pine v Multiplex Constructions (Vic) Pty Ltd [2005] FCA 1428
Pine v Seelite Windows & Doors Pty Ltd [2005] FCA 500
Ponzio v B & P Caelli Constructions Pty Ltd (2007) 158 FCR 543
Rural Press Limited v Australian Competition and Consumer Commission (2003) 216 CLR 53

WARREN CRUSE v MULTIPLEX LIMITED (ACN 008 687 063), CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION, JOHN SETKA, GRANT THORSON, PETER JOHN COSTELLO, ALFIO DI VIRGILIO, MARK EDWARDS, JOSE ESTEVES, MAX HOOD, HUSEIN KARUPOVIC, JUSTIN NORMAN, NICKOLAS CON PAPANOTAS, STEVE SAVIC and ANTTI GREGORY BODNARUK

VID 1223 of 2007

GRAY, GOLDBERG & JESSUP JJ

5 november 2008

MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 1223 of 2007

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

BETWEEN:

WARREN CRUSE Appellant

AND:

MULTIPLEX LIMITED (ACN 008 687 063) First Respondent CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION Second Respondent JOHN SETKA Third Respondent GRANT THORSON Fourth Respondent PETER JOHN COSTELLO Fifth Respondent ALFIO DI VIRGILIO Sixth Respondent MARK EDWARDS Seventh Respondent JOSE ESTEVES Eighth Respondent MAX HOOD Ninth Respondent HUSEIN KARUPOVIC Tenth Respondent JUSTIN NORMAN Eleventh Respondent NICKOLAS CON PAPANOTAS Twelfth Respondent STEVE SAVIC Thirteenth Respondent ANTTI GREGORY BODNARUK Fourteenth Respondent

JUDGE:	GRAY, GOLDGERG & JESSUP JJ
DATE OF ORDER:	5 november 2008
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1. The appeal be allowed.

2. A penalty of $2,500.00 be imposed on Construction, Forestry, Mining and Energy Union, an organisation within the meaning of the Workplace Relations Act 1996 (Cth), for –

(a) making a claim that Multiplex Limited make payments to its employees in relation to the period of a meeting commencing at about 8.30 am on 5 August 2003 and in relation to a period commencing at about 1.10 pm on that day and lasting until about 10.00 am on 6 August 2003 during each of which periods those employees engaged in industrial action at the site of the Concept Blue Apartment Project at 336 Russell Street, Melbourne, contrary to s 187AB(1)(a) of the Workplace Relations Act 1996 (Cth); and

(b) organizing and engaging in industrial action against Multiplex Limited with intent to coerce that employer to make the payments referred to in (a), contrary to s 187AB(1)(b) of the Workplace Relations Act 1996 (Cth).

THE COURT DECLARES THAT:

1. On 5 and 6 August 2003, Grant Thorson, an officer of Construction, Forestry, Mining and Energy Union, an organisation within the meaning of the Workplace Relations Act 1996 (Cth), contravened –

(a) s 187AB(1)(a) of that Act by making a claim that Multiplex Limited make payments to its employees in relation to the period of a meeting commencing at about 8.30 am on 5 August 2003 and in relation to a period commencing at about 1.10 pm on that day and lasting until about 10.00 am on 6 August 2003 during each of which periods those employees engaged in industrial action at the site of the Concept Blue Apartment Project at 336 Russell Street, Melbourne; and

(b) s 187(1)(b) of that Act by organizing and engaging in industrial action against Multiplex Limited with intent to coerce that employer to make the payments referred to in (a).

2. Grant Thorson, an employee of Multiplex Limited, contravened s 187AA(2) of the Workplace Relations Act 1996 (Cth) –

(a) on 8 August 2003, by accepting from Multiplex Limited a payment in relation to the period of a meeting commencing at about 8.30 am on 5 August 2003; and

(b) on 15 August 2003, by accepting from Multiplex Limited a payment in relation to a period commencing at about 1.10 pm on 5 August 2003 and lasting until about 10.00 am on 6 August 2003, during each of which periods he engaged in industrial action at the site of the Concept Blue Apartment Project at 336 Russell Street, Melbourne.

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

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 1223 of 2007

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

BETWEEN:

WARREN CRUSE Appellant

AND:

MULTIPLEX LIMITED (ACN 008 687 063) First Respondent CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION Second Respondent JOHN SETKA Third Respondent GRANT THORSON Fourth Respondent PETER JOHN COSTELLO Fifth Respondent ALFIO DI VIRGILIO Sixth Respondent MARK EDWARDS Seventh Respondent JOSE ESTEVES Eighth Respondent MAX HOOD Ninth Respondent HUSEIN KARUPOVIC Tenth Respondent JUSTIN NORMAN Eleventh Respondent NICKOLAS CON PAPANOTAS Twelfth Respondent STEVE SAVIC Thirteenth Respondent ANTTI GREGORY BODNARUK Fourteenth Respondent

JUDGE:	GRAY J
DATE:	5 november 2008
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

GRAY J:

1 This appeal raises the question whether a single judge of this Court was in error in refusing to impose penalties on, and make declarations with respect to the conduct of, a trade union and one of its shop stewards. The appeal is from the judgment in Cruse v Multiplex Limited [2007] FCA 2015. In his reasons for judgment, the learned primary judge made very full findings of fact, based on an agreed statement of facts submitted to him and on evidence by way of affidavits, on which there was no cross-examination.

2 The facts and circumstances of the case are also set out in detail in the joint reasons for judgment of Goldberg and Jessup JJ on the appeal, which I have had the opportunity to read in draft form. I am unable to agree with their Honours as to the result of the appeal, but it is only necessary for me to set out briefly my reasons for disagreeing.

3 The notice of appeal begins with the proposition that the primary judge’s dismissal of the application against the second, fourth and fifth respondents without penalty was manifestly inadequate. It proceeds to challenge almost every conclusion reached, or point expressed, by his Honour in his reasons for judgment.

4 At the conclusion of his reasons for judgment, the primary judge added a passage, in which he discussed whether the decision to institute the proceeding before him, or to continue it, was justified. At [52], his Honour referred to Pine v Seelite Windows & Doors Pty Ltd [2005] FCA 500 at [3], where Finkelstein J said:

In Australia prosecuting authorities have prosecutorial guidelines which deal with, among other things, the matters to be taken into account when deciding whether to initiate a prosecution. Two major factors are considered: the sufficiency of the evidence and whether the public interest requires that a prosecution be pursued. The guidelines list a number of factors that should be taken into account when evaluating the public interest. They include: the seriousness or triviality of the alleged offence; whether the prosecution would be perceived as counter-productive, for example by bringing the law into disrepute; the degree that the offence is of public concern; the likely sentencing result; the necessity of maintaining public confidence in the courts; and the offender’s degree of culpability. There is no reason why these factors should be confined to the institution of criminal prosecutions; they have equal applicability to contraventions of quasi-criminal statutes such as the Workplace Relations Act 1996 (Cth). If these factors had been considered here in all likelihood the action would not have been brought. That is not, however, a matter about which complaint can be made; the discretion whether or not to prosecute a case is not amenable to judicial review

5 The primary judge then continued:

53 In response to the concern of the Court concerning the...