100318579

WESTERN AUSTRALIAN INDUSTRIAL MAGISTRATE’S COURT

PARTIES BRIAN APPLEBY, DEPARTMENT OF CONSUMER AND EMPLOYMENT PROTECTION

COMPLAINANT

 -v-

 THE CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION OF WORKERS

DEFENDANT

CORAM MAGISTRATE IG BROWN IM

DATE FRIDAY, 22 AUGUST 2003

COMPLAINT NO CP 1 OF 2003

CITATION NO. 2003 WAIRC 09129

_______________________________________________________________________________ 

Representation

Complainant Mr N Monahan (of Counsel) appeared for the Complainant.

Defendant  Mr KJ Bonomelli (of Counsel) appeared for the Defendant.

_______________________________________________________________________________

Reasons for Decision

1          The Defendant is charged by summons with the following offence i.e. that on 10 January 2002 it 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; contrary to sections 96E(1)(b) and 96G(2) of the Industrial Relations Act 1979 (the Act).

2          The hearing of this matter proceeded throughout the day on 16 July 2003 and after hearing closing submissions the Court reserved its decision until today.  I now publish these reasons.

3          The evidence produced by the Complainant consisted of testimony from an Industrial Inspector (Mr Lee) and the Registrar of the Western Australian Industrial Relations Commission (Mr Spurling).  In addition, some documents were admitted including exhibit C3 being a certified copy of Complaint No CP 1 of 2002 which was heard and determined in this Court by Mr Tarr IM on 8 and 9 October 2002.  The Defendant declined to call evidence as is its right.

4          During the hearing it was ruled that the certified copy of the reasons for decision published by Mr Tarr were not admissible in these proceedings.  Strong objection was also raised to the admissibility of exhibit C3 and, although I do not intend to repeat the oral reasons I gave during the hearing, it is sufficient to say that I was satisfied the document was relevant and admissible in its present form.  It follows that I am satisfied as a fact that on 9 October 2002 Joseph McDonald was found guilty and convicted in this Court of an offence, namely, that on 10 January 2002 he threatened that the free and lawful exercise of the occupation of Brajkovich and Son Demolitions Pty Ltd would be interfered with by reason of the circumstance that Chris George and others, employees or contractors of Brajkovich and Son Demolitions Pty Ltd, were not members of an organisation of employees; contrary to sections 96E(1)(b) of the Act.

5          The provisions of section 96G(2) of the Act say as follows:

(2)  If an officer or member of an organisation of employees is guilty of an offence against section 96C, 96D or 96E, the organisation is also guilty of that offence unless it is proved that all reasonable steps were taken by the organisation to prevent the commission by the organisation or its officers or members of offences against section 96C, 96D or 96E.

6          The prosecution case is that once this Court is satisfied that an officer or member of the Defendant organisation has been found guilty of an offence contrary to section 96E of the Act, that organisation, by operation of law is also guilty of that offence unless the Defendant proves that it took all reasonable steps to prevent the commission of such offence.  Given that the Defendant elected to call no evidence at this hearing there is no suggestion raised that the above proviso has been satisfied by the Defendant.

7          The only issue raised by the Defendant’s Counsel in closing submissions was that there was no evidence to establish that the person named Joseph McDonald, who was found guilty by Mr Tarr IM on 9 October 2002, as described above, was the same person as the Joseph McDonald referred to in the evidence of Mr Spurling as being the Assistant Secretary of the Defendant organisation on 1 January 2002 and 1 January 2003.  I note the evidence of Mr Spurling was not challenged in cross-examination and, although no documents were tendered through him, his evidence establishes as fact that between 1 January 2002 and 1 January 2003 Joseph McDonald was an “officer” of the Defendant organisation and I so find.

8          This submission caused the Counsel for the Complainant to seek leave to produce correspondence exchanged between the parties prior to the hearing.  The Court acceded to that request and, after hearing further submissions, ruled that the letter of 10 April 2003 from the Defendant’s solicitor contained an admission that on 10 January 2002 (the relevant date in both complaints) a person named Joseph McDonald was an officer of the Defendant.  I made it clear that this admission did not clarify or address the separate issue of whether the Joseph McDonald found guilty by
Mr Tarr IM was the same person as the Joseph McDonald who was an officer of the Defendant.

9          Counsel for the Complainant then sought leave to re-open the prosecution case for the purpose of clarifying the issue of identity.  This application was opposed by defence Counsel.  After hearing further submissions this Court took the view that leave to re-open should be granted.  Without seeking to repeat the oral reasons I gave during the hearing I record that I basically took the view that this was a technical issue which obviously was an oversight by the prosecutor who had written to the Defendant’s solicitor on 30 May 2003 seeking a formal admission on this very issue and received no reply.  I reached the view that this necessary link, in what is an unusual circumstance, was best addressed by further evidence rather than be left for the Court to consider whether there was sufficient evidence from which a proper inference could be drawn that the Joseph McDonald found guilty of committing an offence, contrary to section 96E(1)(b) on 10 January 2002 was the same person who was an officer of the Defendant on 10 January 2002.

10       Further evidence was given by Mr Lee who was present in Court when Joseph McDonald was convicted on 9 October 2002 and was able to swear that he is also the person he knows to be the Assistant Secretary of the Defendant organisation.  On the basis of his evidence I find that he was present in this Court on 9 October 2002 when Joseph McDonald was found guilty by Mr Tarr IM and that person was the same person he had met between 30-40 times previously and whom he knew to be the Assistant Secretary of the Defendant organisation.  I noted the objection raised by the defence Counsel based on the grounds of hearsay but, in my view, the witness Lee was able to give cogent evidence, based on his past meetings in the course of his duties, that the person he saw in this Court on 9 October 2002 was the same person who he believed to be Joseph McDonald, Assistant Secretary of the Defendant.  I am satisfied as a fact that the person named as Defendant in exhibit C3 is the same Joseph McDonald who was Assistant Secretary of the Defendant organisation on 10 January 2002 as described by the witness Spurling.

11       It follows from the above findings that the Defendant in this case must be convicted of the charge before this Court.  I will now hear submissions as to penalty, costs and mitigation.

IG Brown

Industrial Magistrate