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Federal Court of Australia |
Last Updated: 3 March 2023
FEDERAL COURT OF AUSTRALIA
Fair Work Ombudsman v Roach (The Melbourne Quarter Case) [2023] FCA 156
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File number:
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Judgment of:
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Date of judgment:
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Catchwords:
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INDUSTRIAL LAW – alleged contraventions of ss 348 and 349 of
the Fair Work Act 2009 (Cth) by union and union representative at the
site of the Melbourne Quarter project – applicant claimed that the
representative
told a caulking subcontractor during a site induction that the
subcontractor could not work on the site unless he paid outstanding
union fees
– where evidence of key witnesses differed as to what was said during the
induction – examination of contested
evidence – evidence of the
employees of the subcontractor generally accepted – contraventions
established
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Legislation:
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Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022
(Cth), Schedule 1, Part 3, item 323
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Cases cited:
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Adcock v Blackmores Ltd [2016] FCCA 265; 259 IR 209
Adcock v Blackmores Ltd [2016] FCA 893
Australian Building and Construction Commissioner v Construction,
Forestry, Mining and Energy Union (The Quest Apartments Case) [2017] FCA
1398
Australian Building and Construction Commissioner v Construction,
Forestry, Mining and Energy Union (The Syme Library Case) [2018] FCA
1142
Australian Building and Construction Commissioner v Hall [2018]
FCAFC 83; 261 FCR 347
Australian Building and Construction Commissioner v Molina [2020]
FCAFC 97; 277 FCR 223
Australian Building and Construction Commissioner v Ravbar [2018]
FCA 1196
Australian Building and Construction Commissioner v Roach (The Melbourne
Quarter Case) (Ruling No 1) [2021] FCA 1153
Australian Building and Construction Commissioner v Roach (The Melbourne
Quarter Case) (Ruling No 2) [2021] FCA 1210
Australian Federation of Air Pilots v Regional Express Holdings Ltd
[2021] FCAFC 226; 290 FCR 239
Australian Red Cross Society v Queensland Nurses’ Union of
Employees [2019] FCAFC 215; 273 FCR 332
Auimatagi v Australian Building and Construction Commissioner [2018]
FCAFC 191; 267 FCR 268
Banditt v The Queen [2005] HCA 80; 224 CLR 262
Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336
Broadhurst v The Queen [1964] AC 441
Browne v Dunn (1893) 6 R 67
Communications, Electrical, Electronic, Energy, Information, Postal,
Plumbing and Allied Services Union of Australia v Australian
Competition and
Consumer Commission [2007] FCAFC 132; 162 FCR 466
Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd
[2015] FCAFC 25; 230 FCR 298
Forrest v Australian Securities and Investments Commission [2012]
HCA 39; 247 CLR 486
Fox v Percy [2003] HCA 22; 214 CLR 118
Harris v Warre [1879] UKLawRpCP 5; (1879) 4 CPD 125
Newton v Australian Postal Corporation (No 2) [2019] FCA 2192; 292
IR 396
R v Jovanovich (1997) 42 NSWLR 520
R v Uhrig (unreported, NSW Court of Criminal Appeal, 24 October
1996)
Seltsam v McGuiness [2000] NSWCA 29; 49 NSWLR 262
Société d’Avances Commerciales
(Société Anonyme Egyptienne) v Merchants’ Marine Insurance
Co (The Palitana) (1924) 20 Ll L Rep 140
State Rail Authority of New South Wales v Earthline Constructions Ltd
(in liq) [1999] HCA 3; 160 ALR 588
Swain v Waverley Municipal Council [2005] HCA 4; 220 CLR 517
Tomvald v Toll Transport Pty Ltd [2017] FCA 1208
Watson v Foxman [1995] NSWCA 497; (1995) 49 NSWLR 315
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Division:
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Fair Work Division
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Victoria
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Employment and Industrial Relations
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Number of paragraphs:
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21-23 September, 4-7 October 2021
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Solicitor for the Applicant:
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Lander & Rogers
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Counsel for the Respondents:
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Mr P Boncardo and Ms E Beljic
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Solicitor for the Respondents:
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Maurice Blackburn
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ORDERS
THE COURT ORDERS THAT:
WHEELAHAN J:
Introduction
The legislation
348 Coercion
A person must not organise or take, or threaten to organise or take, any action against another person with intent to coerce the other person, or a third person, to engage in industrial activity.
[2017] HCA 54 
; 263 CLR 551 at [61]
(Kiefel CJ, Keane, Nettle and Edelman JJ). The intent aspect of the expression
“intent to coerce” in s 348 applies to
the negation of choice
element referred to in the authorities, but not to the use of unlawful, or
illegitimate, or unconscionable
means, which is an objective element: ABCC v
Hall at [25]-[26]; Newton v Australian Postal Corporation (No 2)
[2019] FCA 2192; 292 IR 396 (Newton) at [27]-[29]
(Bromberg J). As Bromberg J explained in Newton at [29], the
illegitimate or unconscionable means must be proven by an applicant. The
evidentiary presumption in s 361(1) of the FW
Act applies only to the
negation of choice element of an allegation of a threat to take action with an
intent to negate choice by
unlawful, illegitimate of unconscionable means for
the purposes of an alleged contravention of s 348, and extends to a threat
to
take action: Australian Building and Construction Commissioner v Molina
[2020] FCAFC 97; 277 FCR 223 at [51]- [52], [91]-[93] (Bromberg, Colvin and
Abraham JJ). 349 Misrepresentations
(1) A person must not knowingly or recklessly make a false or misleading representation about either of the following:(a) another person’s obligation to engage in industrial activity;(b) another person’s obligation to disclose whether he or she, or a third person:
(i) is or is not, or was or was not, an officer or member of an industrial association; or(ii) is or is not engaging, or has or has not engaged, in industrial activity.
Note: This subsection is a civil remedy provision (see Part 4-1).
(2) Subsection (1) does not apply if the person to whom the representation is made would not be expected to rely on it.
The pleaded case
(a) Roach called Watterston and Simone over to where he was and asked them to take a seat;(b) Roach asked Watterston and Simone whether they had their “cards”; and
(c) Roach checked certain details associated with the cards provided by Watterston and Simone on his mobile phone and by making a telephone call.
Roach: “it says you owe $500”;
Watterston: “I don’t want to pay that”;
Roach: “well if you don’t pay the $500 you can’t work here”;
Watterston: “Really, I can’t work here?”
Roach: “yep”;
Watterston: “So you’re telling me that unless I pay that $500, I can’t work on site?”; and
Roach: “Nope, not until you pay your $500”.
Section 348 of the FW Act
- In acting as alleged in paragraph 8 herein, Roach:
(a) threatened to prevent Watterston performing any work on the Project that day; and/or(b) prevented Watterston performing any work on the Project that day.
PARTICULARS
The threat was partly oral and partly implied. Insofar as it was oral, it was constituted by the things said by Roach as alleged in paragraph 8 herein. Insofar as it was implied, it was implied from the matters alleged in paragraphs 7-8 herein and the surrounding circumstances, including those particularised under paragraph 10 herein.
Roach prevented Watterston performing work as he did not pay the fee and hence, he was prevented by Roach from performing any work at the Project that day and he subsequently left the site.
- Roach acted as alleged in paragraph 8 herein with the intention of negating the choice (and thereby coercing) Watterston to pay membership subscriptions, levies and/or dues to the CFMMEU and thereby engage in industrial activity within the meaning of section 347(b)(vi) of the FW Act.
PARTICULARS
The intention to negate the choice of (and thereby coerce) Watterston is to be inferred from the whole of the surrounding circumstances, including in particular the following:(i) the matters alleged in paragraphs 7-8 above;(ii) the likely consequence to Watterston (and his business) of being prevented access to the Project to perform work;
(iii) the fact that Roach did not say anything similar to Simone, after Simone produced a CFMMEU membership card indicating that he was a “Retired Member”;
(iv) his role as a delegate for the CFMMEU at the Project; and
(v) his presence in the lunchroom immediately after the induction of Watterston and Simone onto the Project that morning.
Further and to the extent necessary, the applicant also relies on sections 360 and 361 of the FW Act.
- The action threatened and/or taken as alleged in paragraph 9 herein was:
(a) unlawful; and/or(b) illegitimate; and/or
(c) unconscionable.
PARTICULARS
The action was unlawful to the extent that it amounted to a contravention of section 349 of the FW Act, and to the extent that it amounted to an interference in the performance of Melbourne Caulking’s contract with Geschke, or Watterston’s contract of employment with Melbourne Caulking.
The action was illegitimate for the above reason and because Roach had no legal right to prevent Watterston attending the Project to perform work, and because it was inconsistent with the principles of freedom of association, including the freedom to become, or not become, a fully financial member of the CFMMEU.
The action was unconscionable in that it was inconsistent with norms and standards of conduct in an industrial setting, including the principles of freedom of association, and because it was disproportionate to any legitimate interest in the demands of Roach which the relevant threats/action supported.
12. By reason of the matters alleged in:(a) paragraphs 9(a), 10 and 11 herein, Roach contravened section 348 of the FW Act; and/or(b) paragraphs 9(b), 10 and 11 herein, Roach contravened section 348 of the FW Act.
Section 349(1) of the FW Act
- In acting as alleged in paragraph 8 herein, Roach made a representation to Watterston to the effect that in order to perform work on the Project, including the work he had attended to perform that day, he had to pay membership subscriptions, levies and/or dues to the CFMMEU.
PARTICULARS
The representation was partly oral and partly to be implied. To the extent it was oral, it was constituted by the conversation alleged in paragraph 8 herein.
To the extent it was implied, it was implied from Roach’s conduct at or around the time as alleged in paragraphs 7 and 8 herein and the context in which the conversation occurred, including occurring immediately after Watterston’s first site induction on the Project.
- The representation alleged in paragraph 13 herein was about the obligation of Watterston to pay membership subscriptions, levies and/or dues to the CFMMEU and thereby engage in industrial activity within the meaning of section 347(b)(vi) of the FW Act.
- The representation alleged in paragraph 13 herein was false and/or misleading.
PARTICULARS
There was no contractual, legislative or other obligation or requirement on Watterston to pay fees to the CFMMEU and thereby become a financial member of the CFMMEU, before being entitled or allowed to perform work on the Project.
- Roach made the representation alleged in paragraph 13 herein:
(a) knowing that it was false and/or misleading; or(b) reckless as to whether it was false or misleading.
PARTICULARS
Roach’s state of mind is to be inferred from his status as a CFMMEU member and CFMMEU delegate and his work history in the building and construction industry.
Further particulars will be provided closer to trial.
- By reason of the matters alleged in paragraphs 13-16 herein, Roach contravened section 349(1) of the FW Act.
...
- The First Respondent proceeded to check Watterston’s Incolink, CBUS and Coinvest details via applications on his mobile phone, which show whether people are properly registered with each and whether contributions on their behalf are paid up;
- The applications showed that Watterson’s Incolink, CBUS and Coinvest contributions were up to date;
- Because Watterston said his union ticket was outdated, the First Respondent checked the financial status of his membership on the Second Respondent’s website;
- The website showed that Watterston’s financial status was ‘invalid’;
- The First Respondent telephoned the Second Respondent’s offices to ask what this meant and was advised that Watterston had called and cancelled his union ticket in February 2020;
- The First Respondent told Watterston that the union was saying he cancelled his ticket in February;
- Watterston told the First Respondent he had paid $200 to reinstate his membership a couple of days ago;
- The First Respondent told this to the person he was speaking to at the Second Respondent’s offices and was advised that they had no record of Watterston paying $200;
- The First Respondent asked Watterston if he could remember who he paid it to and Watterston said that he could not;
- The First Respondent said to Watterston that he should ring or go into the union office because they were telling him he had cancelled his ticket in February and that the $200 was missing as the union office had no record of him paying it;
- Watterston said he was ‘sick of you [c*nts]’ and told the First Respondent to ‘Give me my [f*cking] tickets’;
- Watterston then snatched his tickets from the table and left the lunchroom;
- After Watterston left the lunchroom, the First Respondent continued checking tickets of other Group members.
further and in the alternative, says that Watterston would not be expected to rely on the misrepresentation pleaded in paragraph 13 and that in the event that the representation was contrary to s 349(1) of the Fair Work Act 2009 (Cth) (FW Act), s 349(2) of the FW Act would determine that s 349(1) of the FW Act would not apply.
Background
The evidence
(a) Mr Watterston;(b) Mr Simone;
(c) Mr Bradley Golz, who was an employee of Geschke Plumbing; and
(d) Ms Ruth Dunsby, who was at the relevant time an inspector employed by the Australian Building and Construction Commission (the Commission).
(a) Mr Roach, the first respondent;(b) Mr Kerry Jones, who was an occupational health and safety representative for the plumbers at the site; and
(c) Ms Bridie Murphy, a solicitor who had acted for Mr Roach when the matter was investigated by Lendlease and the Commission.
Telephone records
7:09 am Watterston called Golz for 103 seconds (1 minute, 43 seconds)
7:12 am Golz called Watterston for 22 seconds
7:22 am Silver called Golz for 153 seconds (2 minutes and 33 seconds)
8:24 am Roach called the CFMMEU office for 75 seconds (1 minute, 15 seconds)
8:28 am Watterston called Golz for 45 seconds
8:29 am Golz called Silver for 3 seconds (missed call)
8:35 am Silver called Golz for 121 seconds (2 minutes, 1 second)
8:37 am Watterston called Silver for 5 seconds (missed call)
8:38 am Silver called Watterston for 137 seconds (2 minutes, 17 seconds)
9:01 am Watterston called Golz for 81 seconds (1 minute, 21 seconds)
9:09 am Golz called Roach for 155 seconds (2 minutes, 35 seconds)
9:37 am Golz called Silver for 77 seconds (1 minute, 17 seconds)
9:41 am Golz called Watterston for 164 seconds (2 minutes, 44 seconds)
9:45 am Golz called Silver for 3 seconds (missed call)
9:59 am Silver called Golz for 86 seconds (1 minute, 26 seconds)
11:25 am Silver called Golz for 504 seconds (8 minutes and 24 seconds)
11:34 am Silver called Golz for 253 seconds (4 minutes and 13 seconds)
2:37 pm Golz called Silver for 343 seconds (5 minutes and 43 seconds)
3:08 pm Silver called Golz for 826 seconds (13 minutes and 46 seconds)
Evidence of Mr Watterston
Mr Watterston – evidence-in-chief
At 10:53am on 20 April 2020, Inspector Ingles received a 1800 call from Brendon Watterston [REDACTED] owner of Melbourne Caulking Pty Ltd. Firstly, Watterston wanted to know his rights regarding being kicked off a site for not being a member of a union. Watterston then explained on 20 April 2020, he turned up to work and completed his induction at the Lendlease Two Melbourne Quarter project, located at Aurora Lane, Docklands, Vic 3008. When he left the induction room to begin work he was stopped by a CFMMEU delegate with the nickname ‘Roach’ (unsure of actual name). The delegate asked him if he was a member of the CFMMEU and asked to see his ticket. Watterston explained to the delegate he is no longer a member of the CFMMEU. The delegate told Watterston if he doesn’t have a ticket, he cannot start work, alternatively he could pay a fee of $500 on the spot to begin work on the project. Watterston explained to Inspector Ingles he had bought hundreds of dollars of materials for this job and he is losing work because he isn’t a member of the union which is why he decided to call the ABCC. Watterston said he is part owner in his company, Melbourne Caulking Pty Ltd and has no employees. Watterston is sub-contracted to Geschke Plumbing Contractors. Watterston contacted Geschke Plumbing and told them about the situation. Geschke Plumbing spoke to Lendlease and the response was “we have no work for you”. Watterston said he would be willing to provide more information to the ABCC if needed.
...
- According [to] Watterston, that morning on 20 April 2020, he and his business partner [Mr Simone] were inducted onto the Lendlease Two Melbourne Quarter Project (the Project). Watterston and [Mr Simone] are owners of Melbourne Caulking. Melbourne Caulking have been engaged by Geschke Plumbing to complete 3 – 4 days caulking work on the Project. This was the first time Melbourne Caulking had been engaged by Geschke Plumbing
- As they were leaving the induction room, they were called into the lunchroom by the CFMMEU delegate, “Roach”. Roach asked to see their union membership cards.
- [Mr Simone] has recently become a retired CFMMEU member, which means he pays less fees. [Mr Simone] gave Roach his CFMMEU card, and Roach said that he could work on the site.
- Watterston has recently stopped paying for his union membership. He gave Roach an old union membership card. Roach checked the card and told Watterston that he could not work on the site without paying his membership fees. He told Watterston that he could pay him $500 upfront. Watterston refused.
- Watterston and [Mr Simone] left site and contacted Shannon Silver [REDACTED] from Geschke Plumbing. According to Watterston, Silver called Lendlease to see if they could resolve the issue and let Watterston on the Project. Silver called Watterston back and informed him that there was no way around it and that they would get different contractors who are paid up union members instead.
...
Roach said· “Where’s yours?”
- I gave him an old card which I had in my wallet. I thought maybe it would still be ok. Roach went and [sic] check it on his phone.
Roach said: “It says you’re retired”
Simone said: “Yea we’re only just doing this job, we’re not really doing any union stuff”
Roach said: “It says you owe $500”
I said: “I don’t want to pay that”
Roach said: “Well if you don’t pay the $500 you can’t work here”
I said: “Really, I can’t work here?”
Roach said: “Yep”
38. At this point I stood up.
I said: “So you’re telling me that unless I pay that $500, I can’t work on site?”
Roach said: “Nope”
Mr Watterston – cross-examination
(1) Mr Watterston did not agree that a sentence in his statement to the Commission that Melbourne Caulking did not have any employees was inaccurate on the ground that both he and Mr Simone were employees, stating that it was “semantics”. Mr Watterston maintained that Melbourne Caulking was “our” company, and “our own business”. In re-examination, he confirmed that Melbourne Caulking had no employees other than himself and Mr Simone.
(2) It was put to Mr Watterston that a statement made in the email to the Union dated 25 September 2019 (see [21] above) that since the beginning of the year he was no longer working in the industry was untrue. Mr Watterston accepted that the statement was “partly untrue”, and that the wording could have been better, explaining that what had occurred was that he had stopped working on “city sites”, or “union sites”.
(3) Mr Watterston accepted that his statement did not include reference to Mr Roach going off anywhere after his initial interaction with Mr Watterston and Mr Simone, but Mr Watterston stated that there were other incidental matters that had not been recorded in the statement, such as a discussion that Mr Simone had with Mr Jones and other workers, and the fact of Mr Jones’s presence in the room.
(4) Mr Watterston agreed that upon Mr Roach asking for tickets he thought that Mr Roach was going to check whether Mr Watterston was a Union member, and that he was concerned that if Mr Roach ascertained that he was not, he might not permit him to work on the site.
(5) It was put to Mr Watterston that he referred in his statement to Ms Dunsby to he and Mr Simone providing their Union cards to Mr Roach, but not the other cards to which he referred in his evidence-in-chief, namely his CBUS, CoINVEST, Incolink, and working from heights cards. Mr Watterston acknowledged this to be the case but affirmed his evidence-in-chief on this issue. He denied that he had left out of his statement references to cards other than his Union card because he wanted to paint a picture that Mr Roach was just interested in Union tickets.
(6) It was put to Mr Watterston that his statement to Ms Dunsby did not record the fact of Mr Roach making a telephone call to which he had referred in his evidence-in-chief. Mr Watterston affirmed his evidence-in-chief concerning the fact of Mr Roach’s telephone call.
(7) Mr Watterston was asked about the sentence in the statement where he attributed to Mr Roach the words “It says you owe $500”, and responded by stating that he should have said, “the person on the phone...” said you owe $500.
(8) It was put to Mr Watterston that his written statement had made no reference to his remark to Mr Roach that he had made a payment not long ago to make it up to date, to which he had referred in his evidence-in-chief. In response Mr Watterston said that he did not say everything in the statement that he could possibly think of at the time, and that he had given the general scope of it. He said that he had not been asked by Ms Dunsby to give as much detail as he could remember at that time. He denied that he had omitted anything.
(9) It was put to Mr Watterston that he had not included in his statement to Ms Dunsby any reference to Mr Simone saying to him, “It’s time to go”, in response to which Mr Watterston stated that he was pretty sure that he and Mr Simone looked at each other and said “Let’s go”, and then stated that they might not have even said it, but just looked at each other knowing that it was time to go.
(10) It was also put to Mr Watterston that he had not mentioned in his statement to Ms Dunsby that he told Mr Roach that he had made a final payment, and was not paying any more, to which he agreed.
(11) As to the respondents’ allegation that Mr Watterston had told Mr Roach that he had recently paid the Union the sum of $200, in cross-examination Mr Watterston’s evidence about that topic was as follows –
Q: Well, there’s no reference to this evidence you’ve given this morning, sir, that you said to Mr Roach, “We made a payment not long ago to make it up-to-date”?
A: I said something about $200 – or he said there was 200. I can’t remember. I just - - -
Q: Well, just – let’s just break that down?
A: Yes.
Q: Mr Roach said something about $200, did he?
A: Yes. He said I said 200. And I – I said that I made a payment that was going to make me clear of owing anything to the CFMEU.
Q: Can I just try and understand, sir, what you’re telling us?
A: Yes.
Q: Mr Roach – I withdraw that. You told Mr Roach that you paid $200?
A: I thought it was – not 200, but I thought there was a payment. I didn’t specify the amount. I said, “There was a payment made, and I think I – I’m not sure, but I could be still current.”
Q: When - - -?--- .....
Q: You said $200 a moment ago. Where did you get - - -?
A: That’s where he – sorry, I’m thinking about what I read that he said, the $200. Because I didn’t think it was a lot. It wasn’t the full 500, and I know it’s about four hundred and something now.
(12) Mr Watterston was taken back to the topic later in the cross-examination, accepting that he “could have” told Mr Roach that he had paid the sum of $200 to the Union, which I set out below in its context –
Q: You told him that you had paid $200 to reinstate your membership card?
A: No. I told him I had paid some money. I didn’t say how much.
Q: To reinstate your membership?
A: No, just to – to get it current.
Q: To reinstate your membership?
A: Well, to pay off what I had – what I had owed and I wasn’t sure if it was still valid for the time we were at this job.
Q: And you told him that you had done that a couple of days ago?
A: No. I – I don’t think so.
Q: Did you tell him when you had done it?
A: No, because my wife did it for me. I couldn’t remember when. I thought it was more recent than it was.
Q: And what I want to suggest to you, sir, was that you told Mr Roach that, “I paid $200 to reinstate my membership a couple of days ago”?
A: No. I don’t think I said 200.
Q: You could have said 200?
A: Could have, yes. I might have just guessed at the amount. But I know I made – my wife made a payment. It wasn’t the full amount. It was a part-payment.
Q: When did she make that part-payment?
A: I’m not sure. It’s in my – it’s in the paperwork.
Q: Is that the $412.50?
A: Yes.
Q: That was paid back in October 2019?
A: Yes, it was quite a long time.
Q: And it was a part-payment for what, sir?
A: For the last six months membership or three months; I’m not sure. I’m not – I don’t pay it. My wife pays all the bills.
(13) Mr Watterston was then pressed further about his exchanges with Mr Roach, in response to which Mr Watterston appeared to express some uncertainty about what Mr Roach had told him after he had checked his cards, and as to whether Mr Roach told him that he had to take the matter of payment up with the Union office, save that Mr Roach said to Mr Watterston that he was “no good” and that he didn’t have a card –
Q: After you told Mr Roach that you had paid an amount, or someone had paid an amount ... your membership, he told you that you needed to ring the union office because, at the moment, they’re saying you cancelled your ticket in February?
A: He did say something along the lines of, “You will have to take it up with them,” meaning the CFMEU or something like that.
Q: You’re not sure what he said?
A: I couldn’t tell you the exact wording now, no.
Q: So what he said, sir, was you needed to ring the union office because they’re saying you cancelled your ticket. And he said, I suggest, that the $200 is missing, because they’ve got no record of you paying it?
A: No, I don’t recall him saying anything about missing $200.
Q: He said something about a missing part-payment, did he?
A: I don’t recall.
Q: He said something about the union having no record of any part-payment being made for your membership fees?
A: No, I can’t recall that.
Q: He suggested to you, didn’t he, that the best thing for you to do was to call the union office or, better yet, go into the union office?
A: Maybe he said something along those lines, but I don’t recall.
Q: You accept that he might have said something like that; is that right?
A: He was just saying you’re not paid. You’re not a member and you need to, you know, pay your membership. If – well, look, I’m just speculating. I – I couldn’t tell you what he said to be honest. I just – I know – I know he said I’m not – I’m no good. I don’t have a card.
(14) It was put to Mr Watterston that his account of going back to Mr Roach and having another conversation with him did not appear in his statement taken by Ms Dunsby. Mr Watterston’s responses were varied, in that he first said that he did not omit it, he just did not remember it, then stating that he was sure that he told Ms Dunsby about it, and then stating that it was something that he did not consider relevant at the time. When pressed further, he stated that he remembered telling Ms Dunsby about the further exchange with Mr Roach and was surprised that it was not in his statement. Mr Watterston denied that he had made up his evidence that he said to Mr Roach “[Eff] you”.
(15) Mr Watterston denied that he had a telephone conversation with Mr Golz in which Mr Golz said that he did not need to leave the site and that he should come back, stating that Mr Golz only asked about Mr Simone coming back, and stated that this probably occurred in the telephone call while he was still at the site. Mr Watterston said that he told Mr Golz that it was a two-man job. Mr Watterston denied that he told Mr Golz that he had another job offer, stating that they had allowed two days for the job and had nothing else booked in.
(16) Mr Watterston denied that he had told the Commission that he had been informed by Geschke Plumbing that Lendlease had said “We have no work for you”.
It was a pretty simple thing that happened. It was – you know, if you want to get into the minute details of it, you know, as I’m sure this is what it’s all about, I’m doing my best. But the general gist of it is we were told to go.
Mr Watterston – re-examination
Evidence of Mr Simone
Mr Simone – examination-in-chief
.. Brendon handed him the three – the CBUS, the Incolink and the CoINVEST and, then, he said, “I need your union card.” He said, “I don’t have one.” And he said – well, he goes, “Do you have an old one?” And he said, “Yes, I have an old one.” And he said, “That will do. I can use that.” And so Brendon handed him that and then he went back and ran it through the same app that he did with me. And – and then, actually, he – I don’t think he had to make a phone call with mine, but I noticed that he did make a phone call while he was running Brendon’s cards.
Brendon and I were sort of giving each other the eye because we knew, basically, what was happening, and sort of – we had an idea of what was coming up.
Q: Now, did he finish the phone call before returning to you or was he still on the phone call?
A: No, no, he finished the phone call.
Q: And then what happened?
A: He basically gathered up Brendon’s cards, came over and told him that Brendon needed to pay the – he was behind in his union fees; he needed to pay them, like, [$]515 because he hadn’t paid, to which Brendon said, “You know, I’m all paid up. I’ve paid.” And he said something like, “Well, you owe it.” And he said, “Well, I’m not paying it.” and basically, Jason Roach said, “Well, you have to go down and talk to the – talk to the union office. Give them a call and organise a payment.” And Brendon said, “Well, I don’t want to pay.” And Mr Roach said, “Well, you have to organise a payment. You know, speak to the union office.” And that’s when Brendon started querying, “Look, are you not letting us on the job? Are you saying that if I don’t pay this, I can’t come on the job?” And – and then Mr Roach was saying, “Look, I’m just saying you’ve got to go down to the union office and talk to them.” And he says, “Well, I don’t want to talk to the union office. Are you saying that I can’t work here if I don’t pay my union fees?” To which Mr Roach basically said, you know, “You have to go – you have to go to the office and deal with that. You can’t come on the job until you go to the office or make – like, deal with the office.”
Roachie said: “and your card?”
Watterston said: “I don’t have a card, I have this old one”
Roachie said: “I can take that one”
- Roachie took Watterston’s card and went to check it. I think he tried to check the card on an app on his phone but it was not working so he rang the union instead.
- Whilst this was happening I started talking to someone about their CFMMEU Team Taylor jumper.
- Shortly after this Roachie finished the phone call and then approached Watterston.
Roachie said: “You owe $515”
Watterston said: “No I’ve paid, I’ve been a member for 15 years and I’m paid off”
Roachie said: “That’s fine but you have to take it up with the office”
Watterston said: “So you’re telling me that unless I pay that $515, I can’t work here?”
Roachie said: “Not until you pay your $515”
Mr Simone – cross-examination
(1) Mr Simone stated that Mr Roach was wearing a black hard-hat, with Union stickers. He said that Mr Roach was not hostile or aggressive, and that he did not do anything physical to prevent Mr Simone and Mr Watterston from working on the site.
(2) Mr Simone agreed that he had a perception that Mr Roach was a person who was going to check whether or not he was a union member. He did not think that Mr Roach was going to prevent them working on the site but apprehended that the situation would be very awkward.
(3) Mr Simone denied a series of propositions that were put which amounted to Mr Roach introducing himself and the other health and safety representative to them and a number of other workers in the room. Mr Simone stated, “that didn’t occur”. While he accepted as a possibility that Mr Roach had introduced Mr Jones, he did not recall it occurring.
(4) Mr Simone denied being told by Mr Roach about safety matters and denied that Mr Roach had spoken to other workers. He did not recall Mr Roach speaking to them about other matters, namely, to be patient with drivers, to check their electrical equipment, or that his and Mr Jones’s photographs were on posters around the site. In re-examination, Mr Simone explained that when he stated that he did not recall these matters, his answer was “no”, meaning that the events did not occur.
(5) Mr Simone stated that he did not recall Mr Watterston stating to Mr Roach that he had paid a particular sum of money, or that that Mr Watterston had identified the sum as $200, but accepted that it was a possibility that Mr Watterston may have mentioned paying a particular sum of money. Mr Simone was questioned further about this aspect, and his evidence was as follows –
Q: And after he [Mr Roach] had concluded making that phone call, he spoke to Mr Watterston and said that the union was saying that Mr Watterston had cancelled his ticket in February?
A: I don’t recall that was exactly what they said, but I do recall him saying something about he’s no longer a member, to – to that effect.
Q: And Mr Watterston replied at that point that he had paid an amount to reinstate his membership?
A: He had, yes.
Q: And I think we went through this earlier, sir, but I will – sir – the abundance of caution – I suggest to you that he nominated the amount of $200 as the amount he would pay the union?
A: You – you can suggest that, yes. I will go with your suggestion.
(6) Mr Simone stated that he recalled hearing Mr Roach say to Mr Watterston that he owed $515 –
Q: Okay. Now, in that conversation, did Mr – do you recall Mr Watterston saying anything about $200?
A: No, that – that – I don’t believe – I don’t recall that. I remember – I thought it was something about, like, around 515, because it was – that would be the last instalment, or that would be how much it would cost for the half yearlyfee. So that’s – I remember something about 515 is what I remember.
(7) Mr Simone denied a proposition that at no point had Mr Roach told Mr Watterston that he was not able to work on the site until he paid it, and gave the following account –
From my memory, what he said was - when Brendon said, “Are you saying that I can’t work here on the site unless I’m a union member,” Mr Roach said, “Not until you sort out this this – not until you sort this out with the union.” “Can I work here?” “Not until you sort this out with the union,” is what I recall.
(8) Mr Simone was asked about his understanding of Mr Watterston’s telephone conversation with Mr Golz at 9.01 am, as conveyed to him at the time by Mr Watterston –
Q: ... And did Mr Watterston relay to you, after Mr Golz’ – or his second call with Mr Golz, whether Mr Golz had sorted things out?
A: He relayed to me that he was too busy to sort things out and that it would probably be best that we just left and that they would probably get somebody in who had union membership.
Q: So Mr Watterston didn’t tell you that Mr Golz had told him that he had attempted to sort things out with Mr Roach or anyone else?
A: Right, Mr Watterston told me that he didn’t try to sort things out with Mr Roach because he was too busy; he wasn’t going to be able to do it.
(9) Counsel for the respondents put elements of the respondents’ case to Mr Simone. The cross‑examination concluded with the following question and answer –
Q: And it was only on – as I understand your evidence yesterday, sir, only on that last occasion or after the last occasion that Mr Watterston had asked that question that Mr Roach responded to the effect, as I understand your evidence, that, “You can’t work here”?
A: From my memory, what he said was – when Brendon said, “Are you saying that I can’t work here on the site unless I’m a union member,” Mr Roach said, “Not until you sort out this this – not until you sort this out with the union.” “Can I work here?” “Not until you sort this out with the union,” is what I recall.
Mr Simone – re‑examination
I remember – I remember in my head something about 515 because that just seems like the natural – that’s the – the twice a year that we had to pay, so - - -
What he said was, when it came to Brendon asking him, “So you’re saying that I can’t work on this site unless I pay my union dues,” that was when – or, “You’re saying I can’t work on this site – are you telling me I can’t work on the site?” Mr Roach said, “Not until you pay your union dues. Not until you get down to the union office and pay your dues. Sort this out with the union.” Words to that effect, not the 515, not the way he – that your learned friend explained it. More so just in a different way.
Evidence of Mr Golz
Mr Golz - examination-in-chief
Q: All right. And in relation to Mr Watterston and Mr Simone, what was the next occasion that you became aware of any issues or happenings with respect to them on the site that day?
A: They gave me a call when the induction was finished.
Q: Who gave you a call?
A: Brendon.
Q: And do you recall what time that was?
A: No.
Q: All right. And what did he say to you?
A: That the induction had finished, and he wasn’t allowed to start until he sorted out his union fee.
Q: Did he tell you anything about who had told him that?
A: He just said the CFMEU rep on site.
Q: Did he mention a name or you?
A: Just said Jason.
Q: Do you know the CFMEU rep on that site?
A: Yes.
Q: What’s his name?
A: Jason.
Q: You know his surname?
A: Roach.
Q: Do you know if he has a nickname?
A: Roachy.
Q: Right. Now, do you recall him – when he said, “We weren’t allowed on the site,” was he talking about both himself and Mr Simone?
A: No, just himself.
Q: All right. Did he tell you what the situation with Mr Simone was?
A: That he had to organise $200 owing.
Q: I’m sorry. I was asking about the situation with Mr Simone. Did he tell you what the situation with Mr Simone was?
A: He said that Mr Simone had paid some of his dues and was able to proceed.
Q: All right. And what was the distinction with respect to Mr Watterston?
A: That he had – he had paid $200 that Jason said to go chase up before commencing.
Q: So as I understand that answer, you said Mr Watterston told you that he had $200 – a payment to the union that he had to chase up?
A: Yes, that he wasn’t allowed to start until he had a – had that clarified from the union.
Q: All right. What did you say in response to that?
A: I said I will chase it up and I will speak to my project manager to sort out this issue.
Q: Who’s your project manager?
A: Shannon Silver.
Q: Did you say that you would try to speak to Mr Roach?
A: I – I went to go find Mr Roach but couldn’t – didn’t find him at that time, so I contact ... so I contacted Shannon to organise.
Q: And what happened then?
A: He just said that – that he had to – he said for him that he had $200 that he – had been paid for him to chase up from – from the office before proceeding.
...
Q: Yes. When you said he had to pay – $200 that he paid that he had to chase up at the office before proceeding. What do you mean by before proceeding?
A: Before commencing work.
Mr Golz: Come to my office, please, for a chat
Mr Golz: I can’t believe they called trying to find out haha
Mr Roach: I know mate. That’s what the dogs do. Try & get every [c*nt] to dob the union in so they can try & prosecute & send the union broke
Mr Golz: Yeah it’s ridiculous mate ohwel [sic] nothing will come out of [it] they prob get that many phone calls per day
Mr Roach: I hope not but stiff shit anyway. It’s his word against mine but I can tell you that Melbourne caulking won’t be getting any union work in the future
... Once induction completed Brendan called and advised me that he was unable to attend site due to not being financial as directed by roachy, he then added that Stefan [sic] was able to continue on site as he did have his card, Brendan had said to roachy that he had payed [sic] his fees of $200 dollars a couple of weeks prior, with further investigation roachy said he hadn’t and [until] he did he couldn’t proceed with work but Stefan was more than welcome to, Brendan told me then that he hadn’t payed [sic] it for years as he doesn’t need it, then asked if I could call roachy.
I spoke to roachy To get a better understanding and heard the same story as Brendan, I contacted Brendan and said was on my way down the building to sort it out and meet him and Stefan. By the time I had made it down to meet Brendan on level b4 he called and advised me that they were both leaving site as Nothing more could be resolved from the outcome, I made it known that Stefan can stay and complete the caulking, but his response was that it was a 2 man job and having one person there to conduct the works wouldn’t be practical.
...
Mr Golz - cross-examination with leave by counsel for the applicant
- Golz got a call from Watterston, who was outside the project, informing him that the CFMMEU Union Delegate “Roachie” wasn’t letting them work because they weren’t financial CFMMEU members. Golz told Watterston that he would give Roachie a call and meet them outside the project.
- Golz called Roachie, and tried to convince Roachie to let Watterston and Simone back on site. Roachie said that Simone was allowed on site because he was financial but Watterston wasn’t. Golz informed Dunsby, that he tried his hardest to get them back on site but it was out of his hands.
- Golz called Watterston back, and Watterston told him that they had left the site. Golz said that Simone was allowed on site. Watterston said that it really was a “two man job”. Watterston also told Golz, that Simone was not actually a financial member but was a retired CFMMEU member and only paying for the CFMMEU card.
(a) Mr Roach told him that Mr Watterston was not allowed onsite because he was not financial with the Union;(b) Mr Roach told him that Mr Simone was allowed onsite because he was financial with the Union; and
(c) in response, Mr Golz tried his hardest to persuade Mr Roach to allow Mr Watterston to work, but was unsuccessful, Mr Roach stating that Mr Watterston had to pay fees of $200 before he could work, and that Mr Roach had made this position clear.
Mr Golz - cross-examination by counsel for the respondents
(a) Mr Watterston had told him in a telephone call at 8.28 am that he had told Mr Roach that he had paid $200 to the Union a couple of weeks previously;(b) Mr Roach had said that there was no record of the payment, and that Mr Watterston should chase it up with the Union office;
(c) on the premise that he had not spoken to Mr Roach before 9.09 am, it could not be the case that he would have said anything to Mr Watterston in the call at 9.01 am concerning Mr Roach’s position about whether Mr Watterston could work on the site, because he had not spoken to Mr Roach up to that point;
(d) it followed that he would not have said to Mr Watterston in the 9.01 am call that he might as well go, because he did not know of Mr Roach’s position;
(e) that when he spoke to Mr Roach at 9.09 am, Mr Roach stated that, “it was a load of bullshit that he was not letting the caulker start onsite”, that he never told the caulker to leave, and that the caulker needed to speak to the Union about where his $200 was;
(f) that he made no attempt to convince Mr Roach of anything at all, because Mr Roach had said that it was “all bullshit”;
(g) Mr Watterston had never told him that Mr Simone was a retired member of the Union; and
(h) that on about 10 July 2020, he had a conversation with Ms Bridie Murphy, a solicitor acting for the Union, and told her that Mr Roach had told him that it was not the case that Mr Watterston was not allowed back on site.
Q: Sorry, sir?
A: I was up the top of the building making my way down to see him and he said that he had left site because he wasn’t waiting around.
Q: Thank you. And you encouraged him to not leave?
A: Yes.
Q: And you told him, didn’t you, that if he was going to leave then, at least, he should send his mate back to do the job?
A: Yes.
Q: And he told you that it was a two-man job?
A: Yes.
Q: And you said that it wasn’t?
A: I – I said that it wasn’t?
Q: It wasn’t a two-man job because it was caulking and it could be done by one man?
A: I said that we could proceed with one.
Q: All right. Thank you?
A: Make a start.
Q: But Mr Watterston said that he was too busy?
A: Yes.
Q: He told you had another job to go to?
A: Yes.
Mr Golz - re-examination by counsel for the applicant (including further cross-examination with leave)
(a) in one of his conversations with Mr Watterston, Mr Golz had asked if Mr Simone could return to the site because he knew that Mr Simone was allowed to work by Mr Roach because he was financial;(b) he did not ask Mr Watterston to return to the site because he knew that Mr Roach was not going to allow him to come back;
(c) he had told Ms Dunsby of the Commission that Mr Roach had said they could not work because they were not paid up;
(d) he tried with Mr Roach to have him allow Mr Watterston to return to the site;
(e) that he was told by Mr Roach that Mr Watterston was to chase up the $200 that he had said he already paid, and to sort that out before he started;
(f) the reality was that Mr Roach said that Mr Watterston had to pay the amount before he could work;
(g) contrary to his previous evidence, it was not true that Mr Roach had told him that it was a “load of bullshit” that he was not letting Mr Watterston start onsite before he paid;
(h) Mr Roach never told him at any time that Mr Watterston was allowed back on site;
(i) Mr Watterston was not allowed back on site until he paid the Union fees; and
(j) insofar as he had said anything different to the respondents’ solicitor, Ms Murphy, he did so as to not upset the Union, although he denied giving evidence before the Court with that purpose.
Evidence of Ms Dunsby
(a) a record of a 1800 call to the Commission by Mr Watterston at 10.53 am on 20 April 2020;(b) a file note of a telephone conversation between Ms Dunsby and Mr Watterston dated 20 April 2020 at 2.15 pm;
(c) a file note of a telephone conversation between Ms Dunsby and Mr Golz dated 21 April 2020 at 12.00 am [sic]; and
(d) the signed statement of Mr Watterston that she prepared that was dated 23 April 2020.
Other documentary evidence
Also FYI Melbourne Caulking were not allowed onsite by Roachy so I will need to find another contractor.
Monday 20/4
- Melbourne Caulking came to be inducted
- Apparently weren’t allowed onsite because they weren’t in the union
Tuesday 21/4
- Received call from ABCC regarding what happened - explained what I knew about the situation
- Gave over Brads number
- Gave over Caths number
Wednesday 22/4
- Missed call from ABCC
- Missed Call from Brendon
- Rang Cath about LL stance - she hadn’t heard from ABCC, said she would follow up with management
- Spoke with Rohan, explained what occurred, he rang another LL department and rang back, was concerned with where the supposed conversation between Roachy and Brendon occurred, stated I didn’t know
- Rang the ABCC back, received Notice to Produce Documents
Evidence of Mr Roach
Mr Roach - evidence-in-chief
I introduced myself. I said to the group, “G’day, fellas. My name is Jason Roach. I’m the site HSR and CFMEU delegate. This is Kerry Jones. He’s the plumbing HSR and delegate.” I then said – I then said to the boys, “Have you all signed onto your SWMS [Safe Work Method Statements], fellas? If you did, I hope you read them very carefully and understood them before you put your signature to them. Now that you have signed onto them, please stick to them.” I then said – told – told the workforce that we were having trouble with the lifts on site. I said, “Look, the lifts – we’ve been having a lot of complaints from the workers on site about the lifts, that they’ve been waiting too long for them.” I said, “Please don’t take it out on the drivers. They’re only doing their jobs. It’s just the way the job is set up and where the lifts are”.
Q: And how did you come to know that there was an issue?
A: When I typed it in, into the web, to find out his financial status, it come up invalid. Showed invalid. I had never seen that before.
Q: And after you saw that it had come up invalid, what did you do?
A: I rang the union office and spoke to a lady there.
Q: What did you say to the lady?
A: I said to the lady – I give her Mr Watterston’s union number and I give her Mr Watterston’s union number and said, “I’ve got a fella here. Just want to check his financial status.” The lady then said on her system it was showing that Mr Watterston had rang up the union in February and cancelled his union membership ticket.
Q: Now, this lady that you spoke to – did you know who she was?
A: No, I can’t recall who it was.
Q: So she said to you that Mr Watterston had cancelled his ticket in February?
A: Yes.
Q: Right. Did you say anything back to her?
A: No. The phone call ended then.
I then turned to Mr Watterston and said, “The lady has just told me that you rung up and cancelled your union ticket in February.” Mr Watterston then said, “I paid $200 the other day to get my ticket reinstated.”
Q: All right. And after he said that to you, what did you say?
A: I said, “Well, the union office told me that you rang up and cancelled your ticket. There’s no – no evidence there of $200.
Q: And did you say anything else to him about that, sir?
A: Yes. I said to Mr Watterston – I said, “Look, mate. The best thing for you to do is to ring the union office up or, better still, go in to see where this missing $200 is.”
Q: And what did Mr Watterston say, if anything, to that?
A: Mr Watterston then said, “You know what? I’m sick of you [c*nts]. Give me my fucking tickets.” He then come and grabbed his tickets off the table and stormed out of the lunch room.
Mr Roach – cross-examination
Delegates shall, to the best of your ability, represent the Union on your particular site. you should be properly trained to enable you to perform the following.
- The enrolment of members and the maintenance of financial members by continuous checks.
- Anyone who attends a site that [sic] is not financial and refuses to join, you the Delegate must notify your Organiser immediately.
...
PLEASE NOTE that failure to meet these obligations may result in Delegates being removed from their position.
Your conduct reflects on the Union and therefore your conduct must be exemplary.
Ticketing.
Check twice a year.
Delegates must make sure they and their members are financial before they start work, before April 1 and October 1 each year.
...
Q: ... I think you said the inductees came up one by one and placed their tickets on that table and then walked back to where they were seated?
A: Yes.
Q: That’s how it occurred?
A: Yes.
Q: And do I take from that that at the end of that process, essentially, there’s a bundle of tickets sitting on the table?
A: Yes.
Q: And had Mr Simone placed his tickets on the table as part of that process?
A: Yes. Yes.
Q: And I think you said that Mr Watterston might have come up and placed his on the table subsequently whilst you were looking at some of the other cards; is that right?
A: Yes.
Q: All right. What would happen once you checked a particular person’s ticket?
A: I would put them aside and then give them back to them.
Q: All right. And when it came to checking the tickets, as I understand it, the last person’s tickets you looked at were Mr Watterston’s?
A: The last person I dealt with was Mr Watterston, but when Mr Watterston brought his tickets and dumped them on the table, I continued checking them altogether.
Q: Right?
A: Checking them altogether. So I think I may have happened to go back into an app to check Mr Watterston’s – either CBUS or Incolink, because I know I completed a few of them going through, and by the time Mr Watterston dropped his tickets, I was probably onto – either I had finished CBUS and was onto Incolink, or vice versa. And I know I had to check one extra of Mr Watterston’s – go out of the app and check Mr Watterston’s – one of the one’s I had missed with him bringing his tickets to me a bit later.
Q: And did you have a lagging sheet with you on that day?
A: Yes.
Q: And were you completing the lagging sheet?
A: Not at that time.
Q: Did you complete that sheet at any time that day?
A: Yes, later on.
Q: Later on. And what does that involve? That’s a – is that a hard copy document with a pen and paper?
A: Yes.
Q: And you write on it member name, member number, financial status, and last jobsite?
A: Yes
Jason advised that whilst checking everybody’s union ticket he was filling in the CFMEU ‘Wagon Sheet’ [sic, and which I take to be a reference to the ‘lagging sheet’] [T]his is a document provided by the CFMEU to their delegates. They ask the delegates to complete this form with the new workers on site. On the form is a table where you insert the name of the worker, their membership number, whether they are financial or unfinancial, and what their last job was.
Q: What do you mean by “not fully”?
A: Well, to save time and to get the workers out on site, I only write their name and ask them what site they come on. That’s the only bit I write in while I’m sitting down. And then later, I fill in the rest of the lagging sheet.
Q: All right. So when you said to us earlier that you didn’t complete it while they were there, and you did it later, that was partially true and partially not true?
A: Well, yes. I was partially doing it, and then I finished doing [sic] it out later on.
Q: How did you know that the $200 was missing at the CFMEU and – or that they had no record of him paying it?
A: I didn’t ask. I just – I just asked his financial status and the lady told me what was on the system, that he ..
Q: But how – how are you in any position to tell Mr Watterston that his $200 payment was missing?
A: Because it wasn’t showing up on the system – the union system. The lady would have told me that he paid $200 to reinstate his ticket.
Q: You’re assuming the lady would have told you he paid $200 even though you didn’t ask?
A: It would have showed up on the system. If Mr Watterston had paid the $200 a couple of days before that, it would have been showing up on the CFMEU system that he paid the $200.
Q: But you didn’t talk to her at all about payments. All you talked to her about was his resignation in February?
A: That’s right. Correct. Yes.
Q: So, whether she – he paid $200 or not and whether the union had a record of $200 or not, on your account of the conversation, she wouldn’t have spoken to you about that at all?
A: No. She didn’t speak to me about the $200.
Q: Yes. And you weren’t in any position either to say that the union had no record of him paying $200 because you didn’t discuss it with her; that’s right, isn’t it?
A: Yes.... it would have showed up on the union system. If he had paid the $200, it would have showed up on the union system.
Mr Roach: “the union is saying that you cancelled your ticket in February.”
Mr Watterston: “I paid $200.00 to reinstate my membership a couple of days ago.”
Mr Roach: “well mate, you need to ring the union office, because at the moment they are saying you cancelled your ticket in February, and that $200 is missing because they have no record of your paying it, the best thing for you is to call the union office.”
Q: Surely, you know, Mr Roach, whether or not you had finished the phone call before the $200 conversation with Mr Watterston occurred or not?
A: No.
Q: Your recollection about a whole range of events of that day has to date been crystal clear but, all of a sudden, you can’t recall what happened with this phone call; is that your evidence?
A: Yes. I can’t recall whether I brought up the $200 with the lady in the union office or whether I – yes – Brendon told me earlier the $200, but I’m pretty sure there was nothing said about $200 from .... the conversation would have gone a lot longer.
Q: Even if he had paid $200 and the union had a record of it, he still wouldn’t have been financial, would he?
A: It all depends.
Q: What do you mean “it all depends”?
A: Because sometimes the union does deals with the workers, and sometimes there has been workers that are three terms behind and they might knock off two terms and tell them just to pay the one term to get back up to date.
Q: Well, did you ask him any questions about that?
A: No.
Q: Why not?
A: Because he told me that he had paid $200 to reinstate his ticket.
Q: Well, your account earlier was that you wanted to ensure that members were financial?
A: Yes.
Q: And he has told you he paid $200. That doesn’t – on your account, that either makes him financial or not financial, depending on the circumstances; correct?
A: Yes.
Q: Why didn’t you ask him whether he did a deal with the union for a part payment?
A: Because I had rung the union office up to check his financial status to get the proof of what his financial status was - - -
Q: No. You didn’t. Well – and you didn’t – you rang up for that purpose. You didn’t get any of that information. All you got told was that he resigned?
A: Correct. Yes.
Q: Well, that means he had zero financial status?
A: Yes.
Q: And if he resigned from the union, why would he be paying $200 to the union?
A: I don’t know.
...
Q: Why was it any business of yours for him to go down to the union office or not to find out where the $200 was?
A: Well, I was trying to help him at that time because he said he paid $200. There was nothing showing $200, so I was trying to help him out to relocate his $200, to find out where his $200 had gone.
Q: And on 20 April, you were trying to comply with the code of conduct for delegates, weren’t you?
A: Yes.
Q: And that’s why, after you got off the phone to the union, you went back to Mr Watterston, and you told him that he owed $515?
A: No.
Q: You’re aware you couldn’t force someone to become a member of a union?
A: Yes.
Q: You’re aware you could prevent someone working on a project simply because they weren’t a member of a union?
A: Yes.
Q: Now, that extended to persons who were members, but who were not financial members of a union; correct?
A: Yes.
Q: You knew you couldn’t compel someone to pay membership fees to the union in order to work on a project?
A: Yes.
Mr Roach – re-examination
(a) as to the text exchange with Mr Golz which I set out at [63] above, Mr Golz had sent the messages, “Come to my office, please, for a chat”, and “I can’t believe they all trying to find out haha”;(b) he could not recall whether or not he looked very closely at the amended defence that had been filed on his behalf to which he had been taken in cross-examination (see [114] above); and
(c) in relation to the letter dated 10 July 2020 that was sent on his behalf by Maurice Blackburn to Lendlease, the references in [10] and [29] of the letter to the Lendlease site induction ending at “around 8:15am” reflected that it was around that time, and that he could not give a specific time, and that the same applied to his evidence-in-chief where he said that the workers came into the lunchroom “about 8.15“.
Evidence of Mr Jones
Mr Jones – evidence-in-chief
We just told them about the accesses; how – and what high-risk work was happening at the moment. And we also chip in and say where they could find parking – cheap parking – where they could get their lunch, and make sure they .... about their SWMS, and make sure that they fill them out properly.
Q: Now, after the worker had said the things that you’ve outlined, did Mr Roach say anything?
A: He said, “Well, just give me the card and I will have a look.”
Q: And did he – did the worker do anything?
A: Well, he said, “I’ve only got an old card, but I paid the union $200 last week.”
Q: And did Mr Roach do anything?
A: He said, “Well, I will ring the union and see what’s happening with it.”
Mr Jones – cross-examination
Q: Mr Roach, he [came] and sat down next to you, did he?
A: No, he was sitting at the other end of the table, and as they came out, he called them over.
Q: Yes. And when – you said Mr Roach did most of the talking, but you did – you had a bit of a go as well?
A: Yes.
Q: When Mr Roach was doing the talking, he was sitting at – seated at the table?
A: I don’t know.
Q: All right?
A: No, I think he – I don’t know.
Evidence of Ms Murphy
(a) she prepared a file note of instructions from Mr Roach that was completed on 2 June 2020 which was based upon telephone conversations and an exchange of emails with Mr Roach;(b) she later took specific instructions from Mr Roach on 2 July 2020 in response to allegations that were made in a letter from Lendlease, and recorded those instructions in a document that supplemented the first document;
(c) she did not herself speak to Mr Jones, but another solicitor at Maurice Blackburn, Mr Sutton, spoke to Mr Jones on 3 July 2020;
(d) she spoke to Mr Golz by telephone on 10 July 2020, but did not have any independent recollection of the content of the conversation, and her recollection was not assisted by a reasonably contemporaneous handwritten file note of the conversation made that day, which was tendered; and
(e) the instructions from Mr Roach then formed the basis of a response that was prepared to Lendlease.
I deny that after taking Mr Watterston and Mr Simone’s cards they stayed in the lunchroom for about 20 minutes. I think the whole process of me checking all 6 of the new inductees my exchange with Brendan took about 10-15 minutes. ...
Mr Roach denies that after taking Mr Watterston and Mr Simone’s cards they stayed in the lunchroom for about 20 minutes. Mr Roach estimates that the whole process of providing the health and safety information, checking all the tickets of the 6 of the new inductees and his exchange with Mr Watterston ... together took about 15 minutes. ...
[Advised] acting for Jason Roach re Lendlease.
[Explained] call & that confidential discussion.
[Golz] aware of incident but difficult to remember.
Went through Jason instructions.
Remembers call [with] Watterston told that not allowed on site by Jason
Thinks called Jason after and he said he was.
So called [Watterston] back, not sure how long walked out of building maybe 15 mins
[Watterston] said already left
Thinks came back another day to complete
Wouldn’t be drawn on further detail can’t recall.
[Advised] would be in touch if anything else required. OK to call back if need be.
The parties’ submissions
Submissions of the applicant
(a) Mr Roach’s evidence-in-chief of the telephone conversation to which I referred at [88] above, which made no mention was made of the $200 amount;(b) Mr Roach’s evidence-in-chief to which I referred at [89] above in which he stated that Mr Watterston referred to a $200 payment after he had concluded his telephone conversation with the lady at the Union office;
(c) Mr Roach’s evidence in cross-examination to which I referred at [111] above that he did not talk to lady at all about payments, that all that he talked to her about was Mr Watterston’s resignation in February, and that he did not know anything about the claimed $200 payment until after the telephone call with the lady at the Union office had finished;
(d) paragraph [21] of the letter from Maurice Blackburn to Lendlease dated 10 July 2020, to which I referred at [113] above;
(e) Mr Watterston’s evidence-in-chief to which I referred at [30] above that Mr Roach completed his telephone call before he came over to speak to him; and
(f) Mr Simone’s evidence-in-chief to which I referred at [51] above that Mr Roach had finished his telephone call before he came over and spoke to Mr Watterston.
(a) Mr Roach repeatedly said that he was standing when giving his presentation to the workers (see [84], [100] above), whereas Mr Jones gave evidence and instructions to Maurice Blackburn that both he and Mr Roach were seated during the presentation (see [125], [131], [132] above);(b) the accounts of what Mr Roach said to the workers differed, in that –
(i) Mr Roach stated in evidence-in-chief (see [84] to [85] above) that the topics that he covered were the signing of safe work method statements (referred to as “SWMS”), trouble with the lifts on site and a request not to take it out on the drivers who were only doing their jobs, a request to ensure that any electrical equipment was tested and tagged and that Nilsen was the electrical contractor on site which would test and tag free of charge, and if there were any issues on site then pictures of him and Mr Jones were plastered around the site with their telephone numbers underneath;(ii) Mr Jones stated in evidence-in-chief (see [125] above) that Mr Roach did most of the speaking, and that the topics covered by them were accesses, what high risk work was then happening, where the workers could find cheap parking, where they could get their lunch, and to make sure that their SWMS were filled out properly. I pause to note that in cross-examination (see [133] above) that Mr Jones stated that he spoke to the topics of accesses and parking and that it was unclear from his evidence who spoke to the topic of suitable places to purchase lunch;
(c) Mr Roach stated that the “spiel” took about three minutes, whereas Mr Jones stated that it took five to six minutes;
(d) in relation to the checking of the tickets, Mr Roach’s instructions to Maurice Blackburn as reflected in Ms Murphy’s note were that he checked the tickets of six inductees, and that Mr Watterston’s tickets were the last that he checked, whereas it was submitted that Mr Jones’s evidence was that the exchange with Mr Watterston happened right at the start of the ticket checking process;
(e) counsel relied on a claimed inconsistency between Mr Jones’s evidence that he had been checking his tickets for five minutes, which only involved photographing them, and Mr Roach’s account that he checked Mr Watterston’s tickets last after he had checked tickets on apps for five other people;
(f) Mr Roach stated in evidence that when he made the telephone call to the Union office, he was seated at a table in the lunchroom within earshot of those around him, whereas Mr Jones gave evidence that he heard Mr Roach commence the call, but that Mr Roach then stood up and walked away after which he could no longer hear him;
(g) Mr Roach gave evidence that Mr Watterston was seated during the ticket-checking process, including during their conversation after Mr Roach’s telephone call to the Union office, whereas Mr Jones gave evidence that Mr Watterston was standing a metre or two from the table when Mr Roach spoke to him after the telephone call, and that prior thereto Mr Watterston was just standing around; and
(h) finally, counsel for the applicant relied on a claimed inconsistency between Mr Jones’s instructions as recorded in a Maurice Blackburn file note that was tendered where Mr Jones was recorded as instructing that “Watterston called Roachie a [c*nt]”, and Mr Jones’s evidence that Mr Watterston said, “I’m sick of you [c*nts]”.
Submissions of the respondents
(a) In a database extract of the Commission that was tendered, Mr Watterston was recorded as having told an inspector employed by the Commission at 10.53 am on 20 April 2020 that he was told by a CFMMEU delegate, “if he doesn’t have a ticket, he cannot start work, alternatively he could pay a fee of $500 on the spot to begin work on the project”. Counsel submitted that the idea that Mr Watterston had to pay $500 “on the spot” to begin work did not appear in his later statement, and he did not give evidence about it. Counsel submitted that a similar note was made by Ms Dunsby in her file note of 20 April 2020 where Mr Watterston was recorded as instructing that Mr Roach told him that “he could pay him $500 upfront”, which Mr Watterston refused.(b) The Commission’s case database extract of 20 April 2020 also recorded Mr Watterston as stating that after Mr Watterston contacted Geschke Plumbing and told them about the situation, that Geschke Plumbing spoke to Lendlease, and that the response was “we have no work for you”. Counsel for the respondents submitted that this was directly contradicted by evidence that Mr Watterston gave to the Court, and also that Mr Watterston denied in cross-examination that he was told that Lendlease said it had no work for him.
(c) Counsel for the respondents submitted that Mr Watterston’s evidence to the Court included matters that were not in the statement that he gave to Ms Dunsby, the pleaded allegations, or any prior accounts given to the Commission. In summary, the main matters relied on were as follows –
(i) in his evidence, Mr Watterston stated that after he and Mr Simone were told to take a seat, Mr Roach “went off somewhere”, and then came back and asked for their “cards” (plural), whereas in his statement to the Commission of 6 May 2020 Mr Watterston referred to Mr Roach requesting a “card” (singular);(ii) there was an inconsistency between [37] of Mr Watterston’s statement to the Commission, which I have set out at [37] above, which has Mr Roach telling Mr Watterston that the app on his phone showed that he owed $500, whereas his evidence to the Court was that Mr Roach had made a telephone call before he came back to speak to him and told him that he had to pay money;
(iii) there were further inconsistencies between the [36] and [37] of Mr Watterston’s statement to the Commission and the pleaded case and his evidence in that the statement and the pleaded case made no reference to Mr Watterston stating to Mr Roach that he had made any payment to the Union, or that Mr Roach had said to Mr Watterston that this was a matter that he had to take up with the Union;
(iv) that aspect of Mr Watterston’s evidence where he stated that he went back to Mr Roach and sought and obtained clarification that if he did not pay the money that was sought he would not be permitted to work at the site, did not form any part of his statement to the Commission, or the conversation that had been pleaded by the applicant in the statement of claim, and which counsel submitted was a recent invention; and
(v) Mr Watterston’s evidence that he said to Mr Roach, “well, [eff] you” before walking out did not feature in either his or Mr Simone’s statements to the Commission, and Ms Dunsby gave evidence only that Mr Watterston had told her that he had “said something under his breath”, but that she did not record it because she did not know what it was that he had said under his breath.
(d) Counsel submitted that the conversation alleged in [8] of the statement of claim was not something that Mr Watterston was able to articulate, even in similar terms, in his evidence-in-chief, and that Mr Watterston’s evidence should be viewed as impressionistic and unreliable.
(e) Counsel pointed to the evidence of Mr Watterston that he and Mr Simone had talked about the case for over 12 months, to the evidence of Mr Simone that he had read Mr Watterston’s statement, and to Mr Watterston’s evidence that he had seen something that Mr Simone had said to the Commission. Counsel submitted that notwithstanding this evidence, Mr Watterston’s account was inconsistent with that of Mr Simone in a number of respects –
(i) counsel submitted that Mr Simone’s evidence that Mr Watterston tried to have Mr Roach say that he could not work at the site before finally putting to Mr Roach in terms that he could not work at the site unless he paid his union fees was not a matter about which Mr Watterston gave evidence, and was wholly unlike the interaction alleged in the applicant’s statement of claim;(ii) whereas Mr Watterston stated in evidence that upon taking a seat at the table in the lunchroom Mr Roach walked off for a short period before speaking to him, Mr Simone did not give this evidence;
(iii) Mr Simone’s evidence that when Mr Roach was making the call to the Union office that he and Mr Watterston were “sort of giving each other the eye” because “they knew what was happening” was not described by Mr Watterston in his evidence, and that Mr Simone’s evidence supported the respondents’ case that Mr Simone and Mr Watterston had a preconception about Mr Roach and what he was doing; and
(iv) Mr Simone did not give evidence, as Mr Watterston had, that Mr Watterston turned around and walked back to Mr Roach to seek clarification as to what the position was in relation to his ability to work at the site.
(f) Counsel for the respondents submitted that Mr Watterston’s recollection of events was poor and impressionistic. Counsel pointed to a number of concessions that Mr Watterston made during the course of his evidence about the state of his memory. Counsel relied on the evidence of Mr Watterston in cross-examination that I have set out at [39(12)] above that he “could have” mentioned a figure of $200 to Mr Roach, and that he might have just guessed the amount. Counsel also submitted that there was an apparent acceptance by Mr Watterston that he had told Mr Roach that an amount had been paid recently.
(g) In further support of the submission that Mr Watterston’s evidence was impressionistic, counsel relied on Mr Watterston’s reference in his evidence that is set out at [43] above to the “general gist” of what he was told. Counsel also relied on Mr Watterston’s evidence in cross-examination that is set out at [39(13)] above that he was “just speculating” as to what was said, and that “I couldn’t tell you what he said to be honest” as compounding the position.
(h) Counsel for the respondents submitted that Mr Watterston’s account was clouded by preconceived ideas about the Union, and preconceived ideas about being prevented from working on the site by a Union delegate if he did not have a ticket. Counsel submitted that these matters explained why Mr Watterston was quick to react, and on Mr Roach’s account reacted in a way that was disproportionate by swearing and leaving abruptly. Counsel relied on a number of matters as contributing to Mr Watterston’s perception, the main ones being –
(i) statements made by Mr Watterston and Mr Simone to the Commission that they avoided going onto union sites where union delegates tend to put up barriers to entry;(ii) Mr Watterston had made enquiries of Geschke Plumbing to check that he was not required to be a union member in order to work at the site, which was a concern to which Mr Simone also referred in his evidence;
(iii) Mr Watterston perceived that unions were interested in getting fees;
(iv) Mr Watterston formed an impression upon first seeing Mr Roach that he was a union delegate and that he might pose some issues, and Mr Simone had referred in his statement to the Commission to Mr Roach’s rugged look, black Union top, and black hard hat with stickers;
(v) Mr Watterston gave evidence in cross-examination that he was concerned that Mr Roach might not permit him to work on site if he was not a paid-up Union member and had views about the power exercised on building sites by occupational health and safety representatives who were also union delegates; and
(vi) Mr Watterston’s evidence about his hesitation before handing over his cards was indicative of a preparedness to walk away from the site, and his readiness to leave in the face of what he perceived to be opposition from Mr Roach.
(a) Mr Simone’s views about union delegates were aligned with those of Mr Watterston, and had similarly clouded his perceptions of events; and(b) Mr Simone’s evidence that he recalled Mr Roach referring to the sum of $515 when speaking to Mr Watterston was the product of reconstruction, as indicated by the terms of his evidence in cross-examination which I have set out at [57(6)], and the terms of his evidence in re-examination which I have set out at [57] above.
(a) Mr Jones presented as a somewhat earnest witness who did not have the level of sophistication of Mr Roach or Mr Simone. Nonetheless, he was clear in his answers, and was vehement in his denials that he had made up an account to assist Mr Roach. It was submitted that Mr Jones was not shaken in cross-examination, and that his evidence was consistent with the account that he had given to Maurice Blackburn that was recorded in their note made in July 2020. In relation to those instructions, it was submitted that it was not put to Mr Jones that those instructions were the product of some reconstruction by Maurice Blackburn.(b) It was not put to Mr Jones that he had ever spoken to Mr Roach about his evidence, or about the case generally, or that Mr Jones had any notion or idea about what Mr Roach’s version of event was.
(c) Although there were some minor differences between Mr Roach’s and Mr Jones’s accounts, such as some of the topics covered in the “spiel”, and whether Mr Watterston mentioned the payment of $200 before or after Mr Roach called the Union office, the fundamental, critical aspects of Mr Jones’s account were on all fours with Mr Roach’s account.
(a) First, it was submitted that there was no evidentiary basis to find that Mr Roach was reading from a document when giving evidence. Further, it was not put to Mr Roach that his evidence had been rehearsed or practised. Otherwise, Mr Roach had stated in examination-in-chief that he had read the statement that he had given to Maurice Blackburn, which was reasonably contemporaneous, many times (see [94] above). It was submitted that the fact that there was consistency between Mr Roach’s evidence and his statement bolstered rather than undermined his credibility.(b) In response to the submissions made on behalf of the applicant directed to assailing the credibility of Mr Roach’s evidence, counsel for the respondents responded that –
(i) in relation to the window of time within which the events in the lunchroom took place, there was no objective evidence as to when the events commenced, and that the oral evidence on the issue varied, and even the statement of claim pleaded a commencement time that did not sit with the objective evidence;(ii) in relation to whether the “spiel” occurred, on which there was a direct conflict in the evidence, counsel again relied on his submission that Mr Jones’s evidence was not affected by cross-examination, and submitted that there was no objective evidence that made Mr Roach’s account improbable;
(iii) in relation to the change in time span from “10-15 minutes” to “about 15 minutes” between the Maurice Blackburn file note and the letter to Lendlease dated 10 July 2020 to which I referred at [140] and [141] above, counsel submitted that the letter actually referred to a different time frame, and submitted that in any event they were only estimates;
(iv) in relation to the Union’s membership records for Mr Watterston, counsel submitted that while properly analysed Mr Watterston’s resignation had been submitted earlier than February 2020, the document nonetheless gave support to Mr Roach’s evidence (see [88] above) that when he telephoned the Union office he was told that Mr Watterston had cancelled his Union membership in February; and
(v) in relation to the claimed inconsistencies between the amended defence and Mr Roach’s evidence as to when Mr Watterston raised the claim that he had paid $200, counsel submitted that Mr Roach’s instructions and evidence were consistent, and further that any inconsistencies with the contents of the amended defence, which Mr Roach did not draft, were of little moment because Mr Roach had consistently claimed that Mr Watterston had mentioned a payment of $200.
(a) it was submitted that Mr Watterston accepted in evidence that he could not remember if he said something about $200, and had accepted that he could have nominated such an amount (see [39(12)] above);(b) there was support in the evidence of Mr Watterston and Mr Simone for the accounts of Mr Roach and Mr Jones that Mr Roach had encouraged Mr Watterston to contact the Union office; and
(c) there was some support in the evidence of Mr Watterston and Mr Simone that the safety “spiel” occurred to the extent that they both gave evidence of identifying Mr Jones in the lunchroom, and that this identification was likely the product of Mr Jones being introduced during the “spiel”.
(a) the Court should not accept Mr Golz’s evidence that a meeting took place in-person between Mr Golz and Mr Roach prior to Mr Watterston’s telephone call to Mr Golz at 9.01 am on 20 April 2020;(b) in support of the above submission, counsel relied on the evidence of Mr Roach, who denied that such a meeting occurred, and the contemporaneous representations by Mr Golz, and in particular Ms Dunsby’s note of her telephone conversation with Mr Golz to which I referred at [70] above, which referred to Mr Golz calling Mr Roach, which made no reference to a face-to-face meeting, and to Mr Golz’s email to Mr Silver of 22 April 2020 (see [65] above) which also made no reference to any face-to-face meeting between Mr Golz and Mr Roach, and which referred to only one conversation between them;
(c) counsel also relied on the evidence of Mr Watterston concerning his telephone conversation with Mr Golz at 9.01 am (see [45] above) in which Mr Watterston stated that Mr Golz did not say to whom he had spoken, and that he did not think that Mr Golz said anything about speaking to Mr Roach;
(d) counsel submitted that Mr Simone’s evidence that Mr Watterston told him that Mr Golz had been too busy to sort the matter out with Mr Roach (see [56(8)] above) was also consistent with Mr Golz not having met Mr Roach prior to the 9.01 am call; and
(e) as for Mr Golz’s evidence on the question whether he had met with Mr Roach, with some justification counsel submitted that Mr Golz was “all over the shop”, and that his evidence should be approached with a great deal of caution such that the Court should not place any weight on anything that Mr Golz had said.
(a) Mr Golz’s statements to Mr Watterston that he was too busy to sort things out, that things were not going to work out, and that it would probably be best if they left, were made without Mr Golz having spoken to Mr Roach;(b) that the real reason that Mr Watterston and Mr Simone left the site was the communication from Mr Golz, which was not the product of any conversation that Mr Golz had with Mr Roach; and
(c) the above view of the facts was not only consistent with Mr Simone’s evidence but had a ring of consistency with what Mr Watterston was recorded as having told the Commission in his initial telephone call at 10.53 am, namely that Geschke Plumbing had spoken to Lendlease, and the response was “we have no work for you”.
(a) on a plain reading of Mr Golz’s email to Mr Silver of 22 April 2020 [see [65] above], the likely source of Mr Golz’s information that Mr Watterston had told Mr Roach that he had paid $200 in fees was Mr Watterston, which was a topic on which Mr Golz had given contrasting evidence;(b) on the same day that Mr Golz spoke to Ms Dunsby, which was recorded in her file note of 21 April 2020 (see [70] above), Mr Golz sent his text to Mr Roach stating the following, which was an expression of credulity at the reporting of the incident –
Yes. It’s ridiculous, mate. Well, nothing will come out of it.
(c) the representation in the email that Mr Silver sent to himself (see [80] above) that Melbourne Caulking “apparently” were not allowed onto the site because they were not in the union should be given no weight; and(d) Mr Roach gave evidence that the safety “spiel” and the ticket checking was something that he did regularly, and in those circumstances, it should be inferred that it would not have taken him particularly long.
Submissions of the applicant in reply
... [Mr Watterston] knew it was important to not omit any information from the statement which would otherwise make it false or misleading. So this statement, I think we can accept, was made in circumstances analogous to those of making an affidavit or a statutory declaration where there is, in effect, an obligation to tell the truth.
(a) there was nothing in the respondents’ point that Mr Watterston had referred to “card” (singular) in his statement and “cards” (plural) in his evidence, when other evidence, including that in the statement of Mr Simone consistently referred to Mr Roach requesting “cards”;(b) the omission by Mr Watterston in his statement to the Commission that he stated to Mr Roach that he had made a payment was of no significance in circumstances where the oral evidence of Mr Watterston, Mr Simone, and Mr Roach all referred to Mr Watterston making such a statement;
(c) as to the omission from the statements of Mr Watterston and Mr Simone of any reference to Mr Watterston turning around and coming back to Mr Roach to seek clarification, counsel submitted that this was not important, because what was important for the purposes of the statements was what was said;
(d) counsel submitted that in any event, Mr Watterston did say at [38] of his statement to the Commission, set out under [37] above, that he stood up before asking Mr Roach for clarification, submitting that any difference in the level of detail was inconsequential; and
(e) as to the submission made on behalf of the respondents that the evidence given of what was said did not accord with the words alleged in [8] of the statement of claim which is set out under [12] above, counsel submitted that that the allegation in the pleading was in accordance with the conversation set out in the contemporaneous signed statement to the Commission by Mr Watterston and substantially in accordance with the signed statement to the Commission by Mr Simone, and that each gave oral evidence that was directly consistent with the representations in their statements.
(a) counsel submitted that an assessment of the full extent of the respondents’ alternative case, which went beyond challenging Mr Watterston’s and Mr Simone’s perceptions of what occurred, was relevant to the assessment of the probabilities of what occurred;(b) as to the respondents’ reliance on what were claimed to be the clouded perceptions of Mr Watterston and Mr Simone, counsel submitted that while it was true to say that Mr Watterston and Mr Simone had concerns about whether they would be asked for union membership cards, they had checked in advance, and had been told that it was not going to be a problem;
(c) counsel submitted that it could not be said that when Mr Watterston and Mr Simone encountered Mr Roach that their mental processes just melted and broke down such that they were unable to process what they saw and heard such that their evidence was misconceived;
(d) counsel further submitted that it had not been put to Mr Simone in cross-examination that his perceptions had been clouded in the manner alleged;
(e) as to the submission put on behalf of the respondents that Mr Simone’s evidence of Mr Roach mentioning a figure of $515 was reconstruction or surmise, it was submitted by counsel for the applicant that this was never put to Mr Simone, and further, that Mr Simone had referred to the figure of $515 in his statement to the Commission that was in evidence;
(f) in relation to the adequacy of what was put to Mr Jones, counsel for the applicant submitted it was squarely put to Mr Jones in cross-examination that his account of events in the lunchroom had been made up in order to assist Mr Roach, and that counsel was not required to put the means by which that occurred when he did not have a basis in his instructions to put the precise means;
(g) as to timing issues, counsel for the applicant referred again to Mr Roach’s evidence in cross-examination that he could not complete within nine minutes the “spiel”, checking the tickets of up to six people, partially filling in the “lagging” sheet, and making the telephone call to the Union office;
(h) in relation to whether the safety “spiel” occurred, counsel for the applicant submitted that the evidence of Mr Watterston and Mr Simone that a safety induction normally occurred after cards were checked was unchallenged;
(i) in relation to Mr Roach’s evidence that he told Mr Watterston, “Well, the union office told me that you rang up and cancelled your ticket. There’s no – no evidence there of $200”, counsel for the applicant submitted that the respondents had failed to grapple with the fact that Mr Roach had said that Mr Watterston mentioned the payment only after he had completed the call to the Union office;
(j) counsel for the applicant submitted that Mr Roach’s evidence that Mr Watterston referred to a $200 payment was a constructed account to direct attention away from the fact that what was actually demanded was $515, which was the relevant Union fee for the 6-month term; and
(k) finally, in relation to Mr Golz’s reference to the $200 payment in his email of 22 April 2020 to Mr Silver and Mr Geschke, which is extracted at [65] above, counsel submitted that the Court should accept the evidence of Mr Golz given in cross-examination by counsel for the applicant that Mr Watterston had never told him that he had paid $200 to the Union, and that it was Mr Roach who had told him about the $200 payment.
Consideration
Preliminary
Where the conduct is the speaking of words in the course of a conversation, it is necessary that the words spoken be proved with a degree of precision sufficient to enable the court to be reasonably satisfied that they were in fact misleading in the proved circumstances. In many cases (but not all) the question whether spoken words were misleading may depend upon what, if examined at the time, may have been seen to be relatively subtle nuances flowing from the use of one word, phrase or grammatical construction rather than another, or the presence or absence of some qualifying word or phrase, or condition. Furthermore, human memory of what was said in a conversation is fallible for a variety of reasons, and ordinarily the degree of fallibility increases with the passage of time, particularly where disputes or litigation intervene, and the processes of memory are overlaid, often subconsciously, by perceptions or self-interest as well as conscious consideration of what should have been said or could have been said. All too often what is actually remembered is little more than an impression from which plausible details are then, again often subconsciously, constructed. All this is a matter of ordinary human experience.
...the existence of a lynx-eyed Judge who is capable at a glance of ascertaining whether a witness is telling the truth or not is more common in works of fiction than in fact on the Bench, and, for my part, I think that an ounce of intrinsic merit or demerit in the evidence, that is to say, the value of the comparison of evidence with known facts, is worth pounds of demeanour.
General observations about the witnesses
Analysis of the evidence
(a) that there was no health and safety “spiel”;(b) that Mr Roach asked Mr Watterston and Mr Simone for their cards, and that Mr Roach checked Mr Simone’s card first and told Mr Simone that he was “good”, or something to that effect which conveyed that there was no issue with Mr Simone;
(c) that Mr Roach made a telephone call concerning Mr Watterston’s membership of the Union, which is confirmed by the objective evidence that Mr Roach made a call to the Union office at 8.24 am;
(d) that upon completing the telephone call Mr Roach told Mr Watterston that he had to organise a payment of fees with the Union office; and
(e) upon Mr Watterston engaging with the issue with Mr Roach, Mr Roach stated that he could not come onto the site and work until after he had paid his union fees.
(a) whether, after Mr Watterston and Mr Simone were directed to take a seat at one of the tables in the lunchroom, Mr Roach went off somewhere for a short period before returning to them;(b) whether Mr Watterston stated to Mr Roach that he had recently paid an amount to the Union;
(c) whether Mr Watterston mentioned a sum of $200 to Mr Roach;
(d) if he did, whether the conversation about the $200 occurred before or after Mr Roach made his telephone call to the Union office;
(e) whether Mr Roach told Mr Watterston that he owed $500, or $515;
(f) the precise words otherwise used by Mr Watterston and Mr Roach in their exchanges; and
(g) the content of the telephone conversations between Mr Watterston and Mr Golz at 8.28 am, 9.01 am, and 9.41 am on 20 April 2020.
(a) Mr Watterston and Mr Simone were engaged in a small business, and they had an interest in performing the sub-contract for caulking work into which their company had entered with Geschke Plumbing;(b) their interest in performing the work was supported in part by the fact that in order to undertake the work they had purchased materials specifically for that job that they brought with them to the site, and which would be wasted if they did not undertake the work;
(c) Mr Watterston and Mr Simone therefore had a strong disincentive to leave the site in a fit of pique as it were, and to abandon the work that they had secured;
(d) indeed, Mr Watterston and Mr Simone did not abandon the site, because they waited outside while Mr Watterston made telephone calls to Mr Silver and Mr Golz;
(e) Mr Roach was both a health and safety representative and a union delegate, which clothed him with apparent authority not only in relation to workers’ occupational health and safety qualifications, but also in relation to union financial status and membership;
(f) the fact that Mr Roach checked the union cards of five or six workers (on Mr Roach’s account), or of Mr Simone and then Mr Watterston (on their account), supports the applicant’s case that Mr Roach was checking the financial status of workers entering the site;
(g) the above point finds reinforcement in the contents of the Union’s Code of Conduct for Delegates, which renders it likely that Mr Roach was engaged in checking Union cards for the purposes outlined in the Code, including the enrolment of members and the maintenance of financial membership by continuous checks, and the requirement that delegates must make sure that they and their members are financial before they start work, before April 1 and October 1 each year; and
(h) the agreed fact that Mr Roach telephoned the Union office at 8.24 am.
- Golz called Roachie, and tried to convince Roachie to let Watterston and Simone back on site. Roachie said that Simone was allowed on site because he was financial but Watterston wasn’t. Golz informed Dunsby, that he tried his hardest to get them back on site but it was out of his hands.
(a) Mr Golz received a call from Mr Watterston, who was outside the site, informing him that Mr Roach had not permitted them to work on the site, because they were not financial Union members;(b) no distinction in the above account was made between the positions of Mr Watterston and Mr Simone;
(c) Mr Golz told Mr Watterston that he would call Mr Roach and then meet them outside;
(d) Mr Golz then called Mr Roach, who informed him that Mr Simone was allowed on the site because he was financial, but that Mr Watterston was not;
(e) Mr Golz called Mr Watterston back, and Mr Watterston told him that they had left the site; and
(f) during the above call, Mr Golz told Mr Watterston that Mr Simone was allowed on site, but Mr Watterston responded by stating that it was a two-man job.
(a) after the induction, Mr Watterston called him and advised that he was unable to attend the site because he was not financial, and added that Mr Simone was able to continue, because he did have his card;(b) Mr Watterston told Mr Golz that he had said to Mr Roach that he had paid fees of $200 “a couple of weeks prior”, as to which there is a live question whether that information was given to Mr Golz by Mr Roach;
(c) Mr Golz then spoke to Mr Roach, not specifying whether this was in-person, or by telephone, where he “heard the same story as Brendan”;
(d) Mr Golz then contacted Mr Watterston and stated that he was on his way down the building to sort it out and to meet Mr Watterston and Mr Simone; and
(e) by the time Mr Golz had made his way down, Mr Watterston called Mr Golz and said that they were leaving the site, as nothing more could be resolved, in response to which Mr Golz made it known that Mr Simone could stay, but Mr Watterston responded by stating that it was a two-man job.
Conclusions
(a) that Mr Roach made the representation alleged, namely, a representation to Mr Watterston to the effect that in order to perform work on the site, including the work he had attended to perform that day, he had to pay membership subscriptions, levies or dues to the Union, or at least a representation not substantially different therefrom;(b) that the representation was about Mr Watterston’s obligation to engage in industrial activity;
(c) that the representation was false or misleading; and
(d) that Mr Roach knew or was reckless as to whether the representation was false or misleading.
... I was not taken to any authorities on the meaning of those words. I read them to mean that s 345(1) will not apply if a reasonable person in the circumstances of the person making the misrepresentation would not, at the time the representation is made, expect the recipient of the misrepresentation to rely on it. The words “would not be expected to rely on it” imply an objective test and, to operate fairly, must relate to the representor’s state of mind. In that connection, if s 345(2) were to operate by reference to a hypothetical reasonable person without knowledge of the dealings between the parties to the misrepresentation, it would be possible that contextual matters which could shed light on whether the recipient of the misrepresentation would be expected to rely on the misrepresentation might not be taken into account. ...
Orders
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URL: http://www.austlii.edu.au/au/cases/cth/FCA/2023/156.html