Evenco Pty Ltd v Amalgamated Society of Carpenters, Joiners, etc & Ors [1999] QSC 53

SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION CHESTERMAN J No 4843 of 1986 EVENCO PTY LTD ACN 010 627 405 and AMALGAMATED SOCIETY OF CARPE.NTERS, . JOINERS, BRICKLAYERS AND PLASTERERS OF AUSTRALASIA REVISED COPIES ISSUED State Reporting Bureau Date /j_ / 'f l Plaintiff UNION OF EMPLOYEES, QUEENSLAND First Defendant and WILLIAM WALLACE TROHEAR and No 1794 of 1988 EVENCO PTY LTD 010 627 405 and Second Defendant Plaintiff AMALGAMATED SOCIETY OF CARPENTERS, JOINERS, BRICKLAYERS AND PLASTERERS OF AUSTRALASIA UNION OF EMPLOYEES, QUEENSLAND First Defendant and ALEX SCOTT and 1 Second Defendant , ... I..•, I •.. •• ... t n '"1 \ l 'l i--, i ? /. J \ I · _.. . ll-. , � , t • - _. � -: [1999] QSC 53 -- 1 of 56 -- AUSTRALIAN BUILDING CONSTRUCTION EMPLOYEES AND BUILDERS LABOURERS FEDERATION (QLD BRANCH) and PAUL WEBB BRISBANE .. DATE 23/03/99 JUDGMENT 2 Third Defendant Fourth Defendant 10 20 30 40 50 60 -- 2 of 56 -- 230399 D.1 Turn 1 mja (Chesterman J) HIS HONOUR: In action 4843 of 1986 I impose a fine of $20,000 on the CFMEU and $5,000 on Mr Trohear. I allow each defendant two months to pay. In the event of default of payment by the CFMEU I give leave to the plaintiff to issue a writ of sequestration against the property of the 10 union. In the event of default by Mr Trohear I order he be imprisoned for one month. In action 1794 of 1988 in respect of each of the three breaches I impose a fine on the BLF of $20,000 and allow three months to pay. I do not impose a further fine on Mr Simcoe. In the event of default in payment of the fines I give the plaintiff leave to issue a writ of sequestration against the property of the BLF. HIS HONOUR: In relation to costs I thought what should happen is that you should give me a written submission within, say, seven days. I know that Mr Hanger and Mr Martin each had an argument that they should have some part of their costs, and that seemed right to me, but I think in the circumstances I will ask you each to give me written submissions on costs within, say, seven days. I publish my reasons. 20 30 40 50 3 60 JUDGMENT -- 3 of 56 -- IN THE SUPREME COURT OF QUEENSLAND Brisbane BETWEEN: AND: AND: BETWEEN: AND: AND: AND: AND: No. 4843 of 1986 EVENCO PTY LTD ACN 010 627 405 Plaintiff AMALGAMATED SOCIETY OF CARPENTERS, JOINERS, BRICKLAYERS AND PLASTERERS OF AUSTRALASIA UNION OF EMPLOYEES, QUEENSLAND First Defendant WILLIAM WALLACE TROHEAR Second Defendant No 1794 of 1988 EVENCO PTY LTD 010627405 Plaintiff AMALGAMATED SOCIETY OF CARPENTERS, JOINERS, BRICKLAYERS AND PLASTERERS OF AUSTRALASIA UNION OF EMPLOYEES, QUEENSLAND First Defendant ALEX SCOTT Second Defendant AUSTRALIAN BUILDING CONSTRUCTION EMPLOYEES AND BUILDERS LABOURERS FEDERATION (QLD BRANCH) Third Defendant PAUL WEBB Fourth Defendant -- 4 of 56 -- REASONS FOR JUDGMENT - CHESTERMAN J Judgment delivered 23 March 1999 CATCHWORDS: CONTEMPT OF COURT - nature of proceedings and standard of proof - necessity for compliance with procedural requirements. Counsel: Solicitors: Hearing Date: Order of the Court (undertaking) - whether undertaking was certain - whether undertaking had been breached - whether secretary and union vicariously liable for breach of undertaking by employee of union - penalty imposed for breach of undertaking. Dr C Jessup QC with him Mr G Martin SC for the plaintiff Mr I Hanger QC with him Mr D Rangiah for the first defendant Mr R R Douglas QC with him Mr A McDougall for the second defendant Madden & Kearney for the plaintiff Paul Richards for the first defendant Quinlan, Miller & Treston for the second defendant 1 - 4 March 1999 -- 5 of 56 -- IN THE SUPREME COURT OF QUEENSLAND Brisbane BETWEEN: AND: AND: BETWEEN: AND: AND: AND: AND: No. 4843 of 1986 EVENCO PTY LTD ACN 010 627 405 Plaintiff AMALGAMATED SOCIETY OF CARPENTERS, JOINERS, BRICKLAYERS AND PLASTERERS OF AUSTRALASIA UNION OF EMPLOYEES, QUEENSLAND First Defendant WILLIAM WALLACE TROHEAR Second Defendant No 1794 of 1988 EVENCO PTY LTD 010627405 Plaintiff AMALGAMATED SOCIETY OF CARPENTERS, JOINERS, BRICKLAYERS AND PLASTERERS OF AUSTRALASIA UNION OF EMPLOYEES, QUEENSLAND First Defendant ALEX SCOTT Second Defendant AUSTRALIAN BUILDING CONSTRUCTION EMPLOYEES AND BUILDERS LABOURERS FEDERATION (QLD BRANCH) Third Defendant PAUL WEBB Fourth Defendant -- 6 of 56 -- 2 REASONSFORJUDGMENT-CHESTERMANJ Judgment delivered 23 March 1999 The Amalgamated Society of Carpenters, Joiners, Bricklayers and Plasterers of Australasia Union of Employees, Queensland, the first defendant in action no. 4843 of 1986 changed its name, in or about January 1998, to "The Construction, Forestry, Mining and Energy, Industrial Union of Employees, Queensland" ("CFMEU"). The second defendant in that action, Mr Trohear, is its state secretary. 2 By a notice of motion filed in each action the plaintiff seeks to have the CFMEU, Mr Trohear, the Australian Building Construction Employees and Builders Labourers Federation (Queensland branch) ("BLF") and Gregory Michael Simcoe punished for contempt of court. Mr Simcoe is the state secretary of the BLF. 3 Although the motions were heard together and the plaintiff adduced some evidence that was common to the defendants in each action, the BLF and Mr Simcoe on the one hand, , and the CFMEU and Mr Trohear on the other, were separately represented. The allegations of contempt arise out of discrete episodes, three of which concern the BLF (and therefore Mr Simcoe) and only one of which was of interest to the CFMEU (and therefore Mr Trohear). It will be convenient to deal separately with the two motions. Procedure 4 Before turning to a consideration of the evidence it is appropriate to say something of the nature of the plaintiffs cause, the procedure by which it was brought before the court and by which it is to be determined. The defendants made repeated and emphatic reference to the principles that proceedings for contempt are essentially criminal in nature and the standard of proof is the criminal standard, beyond reasonable doubt. The second proposition is clearly -- 7 of 56 -- 3 established by the authority to which the defendants referred, Witham v. Holloway (1995) 183 CLR 525 (at 534 per Brennan, Deane, Toohey and Gaudron JJ): "The differences upon which the distinction between civil and criminal contempt is based are, in significant respects, illusory. They certainly do not justify the allocation of different standards of proof for civil and criminal contempt. Rather, the illusory nature of those differences and the fact that the usual outcome of successful proceedings is punishment, no matter whether primarily for the vindication of judicial authority or primarily for the purpose of coercing obedience in the interest of the individual, make it clear ... that all proceedings for contempt 'must realistically be seen as criminal in nature'. The consequence is that all charges of contempt must be proved beyond reasonable doubt". The defendant's first proposition is not so certainly established and its consequences are not settled. Following this passage from Witham, their Honours said: "However, to say that proceedings for contempt are essentially criminal in nature is not to equate them with the trial of a criminal charge". 5 This distinction was not sufficiently adverted to by the defendants who took a number of objections on the ground of procedural irregularity and sought thereby to have the proceedings struck out. Some hours were taken up in considering the submission that the motions should be dismissed notwithstanding, as the defendants candidly conceded that, they had been fully acquainted with the case the plaintiff sought to prove against them and had come fully prepared to meet it. The objection taken, with its corollary that the motion should be dismissed, was justified only on the basis that because the proceedings were criminal in nature any procedural irregularity was incurable and the defendants were, without more, entitled to judgment. 6 I ruled that the proceedings were not, in fact, irregular but even if they had been it would not follow that the consequence must necessarily have been that which the defendants desired. lfthe defendants' submissions were correct then rules of procedure would have been elevated to a status they have scarcely enjoyed since the reforms of the first half of the -- 8 of 56 -- 4 nineteenth century. No judgment should invite litigants to disregard rules of court but it should be understood that rules of procedure are means to an end and not ends in themselves. Their function is to provide for the efficient and timely preparation of causes for judicial determination and the orderly disposition of those causes by the court. But if those ends are, in a particular case, achieved without strict adherence to the rules then it would, in my view, be both sensible and economical of time to ignore the failure. 7 What is essential if an allegation of contempt of court is to be tried fairly is that the specific offence charged against the defendant be distinctly stated and a sufficient opportunity be given to answer the charge. See MacGroarty v. Clauson (1989) 167 CLR 251 at 255. Strict adherence to the rules is a means, and probably the best means, of ascertaining that a defendant charged with contempt knows precisely what he is alleged to have done or failed to have done and is provided with an adequate opportunity to mount a defence. But when it is established, as it was here, that the defendants were fully appraised of the case sought to be made against them and were ready to meet that case, the need for strict compliance with the rules is less evident. 8 It is no doubt right that contempt of court is a serious matter and that the rights of a defendant charged with contempt should be strictly observed. Those rights do not include, in a case where the defendant is not disadvantaged as a consequence of non-compliance, that every last rule and time limit must be observed with the consequence that non-compliance involves dismissal of the suit. 9 A "prosecution" for contempt is a civil proceeding. There is no jury and the rules which are of particular application are found in the Rules of the Supreme Court not the Criminal Practice Rules. I venture to suggest that the characterisation of proceedings for contempt as "criminal" in nature may have the following consequences only: -- 9 of 56 -- 5 (a) each element of the contempt alleged must be proved beyond reasonable doubt; (b) proof should be by means which satisfy the rules of evidence, and the informality which a court trying a civil cause may sometimes allow has no place. However the action is a "civil" one for the purposes of the Evidence Act 1977 so that section 92 inter alia applies; (c) at the conclusion of the plaintiff s case a defendant may request the court to rule that there is no case to answer without having to elect not to call evidence. I allowed that course in these actions and I note that Drummond J did the same in C Com Pty Ltd v. Jiejing Pty Ltd (1992) 36 FCR 524 at 527. 10 There are, of course, some rules which must be observed. An example is 0 44 r 4. Failure to endorse an order with the specified notice will preclude proceedings for contempt. See Halley v. Johnston [1957] St R Qd 500. Abbreviation 11 To avoid repetition that may become tedious I indicate that where, in the reasons which follow, I make a finding of fact or express satisfaction that a fact has been established, I do so on the basis that I have no reasonable doubt that the facts have been proved. Counsel for the defendants in both motions gave me such stem and frequent warnings that I have not overlooked the requirement. Action No. 4843 of 1986 12 This action was commenced by writ of summons dated 21 November, 1986. By it the plaintiff claimed damages, including exemplary damages, for intimidation and interference with its contractual relationships. By written terms of settlement dated 2 March, 1987 the parties referred to an undertaking to be given by the defendants who acknowledged that it -- 10 of 56 -- 6 "shall be a continuing undertaking and shall survive the discontinuance of the ... action and the plaintiff ... shall be at liberty to take action for breach of the undertaking at any time hereafter where it considers a breach or breaches have occurred." 13 The U\1dertaking is recorded as part of an order made by the Court on 2 March, 1987. The order recites that upon: "(CFMEU and William Wallace Trohear) and each of them by themselves their servants and agents undertaking to refrain from any act or omission, having the object:- (a) Of directly impeding the performance of, or procuring the breach of, or otherwise interfering with, any lawful agreement between the Plaintiff and any other person, (being a natural person, firm or body corporate) for the supply by the Plaintiff· oflabour on hire to such other person: andlor (b) Of directly or indirectly preventing the making of any lawful agreement for hire of labour between the Plaintiff and such other person; and/or (c) Of directly or indirectly preventing or hindering the lawful supply by the Plaintiff of labour on hire to such other person" the plaintiff discontinued its action and the Court ordered that the defendants pay the plaintiff s taxed costs. 14 The plaintiff carries on business as a labour-hire agency supplying companies which engage in the construction of commercial and industrial buildings with skilled tradesmen and labourers. The plaintiff does not employ the tradesmen or labourers. It contracts to supply such people as are needed by a builder on an agreed hourly rate of hire for as long as the builder requires that labour. Those supplied are self-employed. They contract with the plaintiff which promises to find them work. They are not taxed as paid employees but deductions of income tax are withheld in accordance with the Prescribed Payments System. The CFMEU numbers among its members those who are engaged in the building industry as employees of contractors or sub-contractors. On occasions such members of the CFMEU are engaged on the same site as labour supplied by the plaintiff. -- 11 of 56 -- 7 15 The proceedings for contempt allege that on three separate occasions there had been a breach of the undertaking. In the end only one was persisted with. This allegation was that: "On or about 21 May 1997 in relation to the building site at the comer of Davenport Street and Nerang Street, Southport: (a) the Plaintiff was a party to an agreement with Sarcon Building Services (the contractor on the site) for the supply by the Plaintiff to Sarcon Building Services of labour on hire and had supplied labour on hire for that site. (b) Lou Sarri was the manager of Sarcon Building Services. (c) Bruce Price was a person working at the site pursuant to the agreement referred to in (a) above. (d) Doug Spinks said to Lou Sarri words to the effect that if Bruce Price was to continue working on the site he [Price] would have to sever his connections with the plaintiff." Mr Spinks was an organiser employed by the CFMEU. What he said on that occasion is said to constitute a breach of the undertaking not to impede the performance of or otherwise interfere with any lawful agreement between the plaintiff and any other person for the supply of labour; and/or not to prevent or hinder the lawful supply of labour by the plaintiff. Evidence 16 The site at the comer of Devonport and Nerang Street, Southport is occupied by District and Magistrates Courts which were to be expanded. The head contractor was Concrete Constructions Pty Ltd. Sarcon Building Services ("Sarcon") is a building contractor which was engaged to perform plaster rendering. 17 Bruce Price was a builders labourer who worked with Sarcon's plasterers. He was not a qualified tradesman but was an experienced construction worker and was valued by Sarcon. He obtained work with Sarcon via the efforts ofthe plaintiff. Though plasterers are normally members of the CFMEU, Mr Price was the labourer and a member of the BLF. 18 On Mr Price's account of things on 21 May, 1997 he was on the site when, at morning smoko, a union official and a representative of the Building Employees Redundancy Trust -- 12 of 56 -- 8 ("BERT") attended. The union representative was Douglas Spinks, the BERT representative was Bill Perrott. BERT, as its name suggests, is a scheme the object of which is to make redundancy payments to construction workers who are often put out of work at the end of a large construction and may spend some time before finding another site. The scheme is voluntary and is funded by those employers of building labour which subscribe to the scheme and become parties to the trust. The plaintiff has never been a participant in BERT. 19 Mr Price remembers that he was "sitting down having smoko with all the rest ofthe Sarcon workers" at about 9:30 when Messrs Spinks and Perrott joined them. He remembers Mr Perrott saying that there had been a disagreement between Sarcon and the union (presumably CFMEU) regarding Sarcon's contributions to BERT. He was interrupted by an incoming call on his mobile telephone which Mr Price believed was from someone at Sarcon. At the conclusion of the conversation Mr Perrott read names from a list of Sarcon employees. As he read each name he asked how long the named worker had been on-site. When Mr Price's name was called he replied that he worked for the plaintiff, not for Sarcon. He was then asked what hourly rate he was paid and he answered. Mr Spinks was present during the conversation but said nothing. 20 At about 2:00 p.m. that afternoon Mr Tanner of Concrete Constructions Pty Ltd came to the site with a representative of another labour-hire company, Australian Trades and Labour Hire. Mr Price was told that "people who are working on the PPS system aren't allowed to work on-site". The upshot was that Mr Price severed his contractual tie with the plaintiff and became engaged instead to Australian Trades and Labour Hire. He remained working for Sarcon. -- 13 of 56 -- 9 21 The cross-examination of Mr Price was brief. It was designed to reinforce his evidence that when Mr Perrott and Mr Spinks were present at the smoko meeting, Mr Spinks was an onlooker. 22 Mr Sarri, who is the principal of Sarcon, gave evidence that he received a telephone call, he thought at about 10:00 a.m. on 21 May, 1997 from Mr Spinks, who told him that he had a problem on the site because he was using "labour from a company called Evenco who didn't have an agreement" with the union. "Therefore you couldn't use them on this site and you should ... get them off the site". Mr Spinks identified the labourer as Mr Price, though he mistook his christian name. Mr Sarri asked Mr Spinks if there was some other labour-hire company on the Gold Coast that could be used instead of the plaintiff. Mr Spinks mentioned Australian Trades and Labour Hire "because they did have an agreement with them". Mr Spinks also said about the plaintiff "they're not playing the game so you just can't use them on the site". 23 Because Mr Price was well regarded, Mr Sarri wished to retain his services. He therefore contacted Australian Trades and Labour Hire and asked if it could be substituted for the plaintiff as the supplier ofMr Price's labour. 24 In cross-examination Mr Sarri doubted whether he had spoken to Mr Perrott on that day but conceded he may have. He disputed the version of the conversation with Mr Spinks that was put to him. He rejected suggestions that Mr Spinks had not used the plaintiff s name, Evenco, in the conversation and that Mr Spinks had said ''you can't use Evenco on-site". He denied saying to Mr Spinks "I am paying for the BERT. They should be in it". He also denied that he had no clear recollection of the conversation. He said: "I remember [the] conversation with Spinks when Doug rang up and said I can't use them on the site. I had a similar conversation with Concrete Constructions within an hour after that ... I'm positive he said to me, 'it's the -- 14 of 56 -- 10 Evenco labourer you've got on-site we don't have an agreement with. You can't use him'." 25 Mr Sarri denied that he had spoken later that day, about 4:00 p.m., to Mr Spinks who said "Look, there is no worries about Bruce Price being on-site" and saying in reply that he had already changed Mr Price's labour-hire company. 26 With two exceptions Mr Perrott's evidence describes a sequence of events similar to Mr Price's. The exceptions are: • Mr Perrott was alone when he spoke to the Sarcon workers who were having smoko. It was only after he had spoken to them, including Mr Price, that he rang Mr Spinks whom he knew to be the union organiser for the CFMEU and suggested that he might come to the site. He had first, he said, spoken to Mr Sarri by telephone about Mr Price. • Mr Perrott discovered from information supplied by the site office that there was one worker in the Sarcon workforce who had been supplied by a labour- hire company who was not the beneficiary of BERT payments. 27 Mr Perrott said that when Mr Spinks arrived on-site, he and Perrott spoke to Mr Price. Mr Spinks said "Well, to work on this site it's a BUSS and BERT site". 28 I digress to explain that BUSS is an acronym for Building Unions Superannuation Scheme. The plaintiff pays into the scheme in respect of the workers whom it places but does so at the statutory rate of7 per cent which is less than the amount paid in respect of employees by contractors subject to an award. 29 Mr Perrott, before he was employed by BERT, was an organiser for the CFMEU. He knew of the earlier litigation between the union and the plaintiff. He admitted that the plaintiff was ''the company which the union had had difficulties with in the past". When he -- 15 of 56 -- 11 called Mr Spinks to alert him to Mr Price's situation he may have mentioned the plaintiff by name. 30 Mr Perrott spoke of a telephone conversation with Mr Sarri. This is the conversation that Mr Sarri doubted. According to Mr Perrott he told Mr Sarri: "That he had a man ... on-site who was ... working for Evenco ... that worker was not being covered by the BERT scheme. The work was interested in getting some BERT money ... and Lou Sarri ... said ' ... I am paying Evenco enough. It should be in their price to pay for this worker' ... " 3 I Mr Perrott said he did not want to become involved in an argument. His interest was to ensure that each person was paid "their $45.00 a week into BERT". Mr Sarri said he would "get someone else" by which, as he explained in cross-examination, he understood Mr Sarri to be saying that Mr Price would be transferred to another labour-hire company that did make payments into the BERT scheme. 32 Mr Spinks' account was that he was rung by Mr Perrott and told of a plasterer on the building site who was not in the BERT scheme. Mr Perrott requested Mr Spinks to return, and he did. On his arrival he rang Mr Sarri to discuss Mr Price's plight. Having told Mr Sarri that no BERT payments were being made in respect ofMr Price, Mr Sarri replied "he should be in it. I am paying for it, so he should be in it". Having been reassured by Mr Spinks that Mr Price was not in the scheme, Mr Sarri said "there is only about 50 cents an hour difference with labour-hire companies, get me a couple of names". According to Mr Spinks, Mr Sarri was "quite happy". There were "no dramas". 33 Mr Spinks denied the version of the conversation given by Mr Sarri. He had not been told by Mr Perrott that he had earlier spoken to Mr Sarri. Nor, it seems, did Mr Sarri mention the earlier conversation with Mr Perrott. Mr Spinks said he did not speak to Mr Price at all that day. -- 16 of 56 -- 12 34 Later he received a call from Mr Trohear who upbraided him for having become involved in an incident that might embarrass the union. Mr Spinks recalled that Mr Trohear "told me I should not have had any contact with Evenco as there was some deal done about 13 years ago that we weren't to interfere with them." 35 Mr Spinks was ignorant about the "deal" and of the requirement that the plaintiffs activities not be interfered with. Mr Trohear told him to telephone Mr Sarri and "smooth it over". Mr Spinks' recollection is that he told Mr Sarri that he had "done the wrong thing" and that he should not have spoken "to Evenco or any of their employees". His conversation with Sarri went on: "Mate, whatever it is, it doesn't matter. I still want the BERT, but there is not a problem with this company. There is definitely no problem". By this, Mr Spinks presumably meant that his union did not object to Sarcon's continued engagement of Mr Price. 36 At Mr Trohear's suggestion, Mr Spinks made a diary note of his second conversation. The note reads: "Rang Lou Sarri [from] Sarcon. Told him to use which contractor he chooses as long as workers get paid [the] right award rate. Lou [was] happy with that but has changed to Australian Trades as they pay [the] right [rate] and just wants to do the right thing as far as possible". 37 Mr Trohear's evidence was that towards the middle of the day he became aware by some means which is entirely lost to his recollection that there was "some issue involving Evenco re some project on the Gold Coast". He enquired about the identity of the organiser responsible for that site and spoke to Mr Spinks. All he knew was that "there was something involving Evenco. [He] had no knowledge of ... the subject matter but [he knew] that [his] officers are under instruction that any matters dealing with this company are to be through [him]". -- 17 of 56 -- 13 38 Mr Trohear recounted that he asked Mr Spinks about "the question of Evenco" and whether there was any problem on the job. Mr Spinks said he had no dealings with Evenco but reported that there had been a meeting concerning BERT payments and that Mr Perrott had taken up the question of BERT payments with Mr Sarri. Mr Trohear then said, contrary to the earlier account, that Mr Spinks did not mention Evenco but only that Mr Perrott had raised the question of BERT payments for some employees ofSarcon. Mr Trohear then asked whether they were employees of Even co and Mr Spinks replied in the affirmative. Mr Spinks then relayed the effect of the conversation which Mr Perrott claims he had with Mr Sam. Mr Trohear extracted from Mr Spinks an assurance that he had not been involved in Mr Sarri's decision to transfer Mr Price to another labour-hire company. He directed Mr Spinks to telephone Mr Sarri and tell him "that the union has no problems with Evenco". 39 On a number of occasions since the undertaking was given Mr Bosa has spoken by telephone with Mr Trohear to resolve difficulties that had arisen and that might have involved an infraction of the undertaking. There was no contact between the two in relation to the event at Southport. Analysis of Evidence 40 Two things can be said about Mr Perrott's evidence. The first is that Mr Price was not cross-examined consistently on the basis that he spoke to Mr Price (and the other Sarcon workers) in the absence of Mr Spinks. The second is that it is puzzling to understand why Mr Perrott should have rung Mr Spinks and requested him to come to the site ifhe had spoken to Mr Sarri in the terms he described. That conversation was amicable and had resulted in Mr Perrott's concerns being addressed. Mr Sarri had readily agreed to engage the services of another labour-hire company that would pay into the BERT scheme in respect ofMr Price. Having obtained the agreement there was nothing to concern Mr Perrott or to prompt him to -- 18 of 56 -- 14 call Mr Spinks. It is to be recalled that Mr Sarri disputes that he spoke to Mr Perrott about Mr Price. 41 Mr Spinks' evidence does not ring true. In the first place his denial that he spoke to Mr Price that day conflicts with the evidence of both Mr Price and Mr Perrott. Mr Spinks has, in effect, three versions of the second conversation with Mr Sarri. What was put to Mr Sarri in cross-examination (T95.8 - .20) was that Mr Spinks said "There is no worries about Bruce Price being on-site" to which Mr Sarri replied that he had already changed labour-hire companies and that he did not care who supplied his labour. In chief Mr Spinks gave the version I have described in paragraph 35. The account recorded in his diary is different again. 42 It is difficult to accept that Mr Perrott would not have mentioned to Mr Spinks that he had already spoken to Mr Sarri and described the conversation, if it had occurred. It is even harder to accept that Mr Sarri, if challenged by Mr Spinks about Mr Price's position would not have said that he had resolved the problem with Mr Perrot and that Mr Price was to be transferred to another labour-hire company. 43 Mr Spinks was, I thought, evasive when asked about his knowledge of the plaintiff. He said in chief (T156.45) that Mr Trohear told him that he should not have had any contact with Evenco because of the "deal done" thirteen years ago. Later he said (TI61.27) that on the day in question he had never heard of Evenco and was not told anything about it by Mr Trohear until about a week later. It is explicit in Mr Trohear's account of his conversation with Mr Spinks that the latter knew of Evenco and knew that Mr Price had been supplied to the site by it. Mr Spinks claimed that it was Mr Trohear who told him for the first time about Evenco in that conversation (T156.8). Later Mr Spinks sought to reconcile the accounts by saying that he learned of Evenco on that day but only about a week later was he told of the -- 19 of 56 -- 15 agreement pursuant to which no organiser should "talk to Evenco". This is inconsistent with his own account of what Mr Trohear told him. 44 Mr Spinks said that when he first arrived on-site and when he spoke to Mr Sarri he did not know that Mr Price had been supplied by a labour-hire company. This assertion is impossible to reconcile with his account of the conversation with Mr Sarri in which the latter is supposed to have said that he did not care which labour-hire company supplied Mr Price as their rates were very similar. 45 Mr Trohear's evidence is also unsatisfactory. It is not credible that he could not remember who or what circumstance alerted him to the possibility that a union organiser had infringed the undertaking. There is nothing in the known circumstances which might answer the riddle. None of the people involved in the altercation had reason to contact Mr Trohear, or anyone else at that union's office, and no-one claims to have done so. Moreover, if a problem had arisen that led Mr Trohear to believe that there may have been a breach of the undertaking, it is impossible to understand why he did not contact Mr Bosa. It was with the plaintiff, not Sarcon, that the CFMEU would have to deal in the event of a breach of the undertaking. Letting Mr Spinks, who had rushed in where angels should have hesitated, mollify the plaintiff scarcely seems an intelligent solution to the problem that had arisen, particularly ifMr Spinks did not understand what it was he had done wrong. Mr Trohear did not strike me as lacking either intelligence or toughness. 46 My own assessment of the witnesses supports the conclusions to which these reasons point. A court is reluctant to place too much emphasis on subjective assessment of credibility but in a case such as this that approach must necessarily play an important part in the resolution of disputed questions of fact. Mr Sarri appeared to me an accurate, reliable and straight forward historian. He has no personal interest in the outcome of the proceedings. He -- 20 of 56 -- 16 had no reason to dissimulate. I did not have the same confidence in the evidence of Mr Perrott or Mr Trohear. Mr Spinks was an unsatisfactory witness. 47 I accept the evidence ofMr Sarri and ofMr Price. I find that Mr Perrott did not speak to Mr Sarri, as he claims, on 21 May, 1997 and that Mr Spinks had only one conversation with Mr Sarri, the effect of which is described by Mr Sarri and appears in paragraphs 22 and 24 of my reasons. I am unable to accept that exhibit 26, a copy ofMr Spinks' diary entry, is an accurate or contemporaneous record of any conversation between Mr Spinks and Mr Sarri. 48 In relation to exhibit 26, it is noteworthy that Mr Spinks did not make a note of the terms of his first conversation with Mr Sarri. If he were being asked to make a record of the events of that day for the protection of the union, it is difficult to understand why he would not have included it. IfMr Trohear thought the union might need protection one must wonder why he did not contact Mr Bosa as he had done in the past. The notice of motion in respect of the contempt was filed on 9 July, 1997, only about six weeks after the relevant events. The diary entry has the appearance of an invention, the necessity for which appeared with the commencement of contempt proceedings. 49 Mr Spinks produced a copy of his telephone account which shows that he has been billed for a call to Mr Sarri's mobile telephone at 3:45 p.m. on 21 May, 1997. The duration of the call is recorded at two minutes forty-one seconds. This is urged by counsel for the defendants as proof that Mr Spinks spoke a second time to Mr Sarri and that the conversation must have been as Mr Spinks described. 50 The account shows only a telephone call to Mr Sarri's phone. It does not prove a conversation with Mr Sarri in the terms alleged. The matters I have discussed have led me firmly to the conclusion I have summarised in paragraph 47. In my view it is not open to a -- 21 of 56 -- 17 reasonable doubt that Mr Sarri is mistaken about the conversation he had with Mr Spinks or that, had Mr Spinks called to recant, that Mr Sarri would have forgotten it. 51 One other matter should be mentioned. Exhibit 25 is a page from the visitors register for the Southport site. It records (in their own handwriting) that Messrs Perrott and Spinks both arrived at the site at 11:00 a.m. This might be corroboration for Mr Price's evidence but for the fact that all the witnesses thought that the approach to Mr Price and the telephone call to Mr Sarri occurred earlier, between about 9:30 and 10:00 a.m. It is possible that they are mistaken and that Mr Perrott and Mr Spinks arrived together at 11 :00 a.m. and spoke to the Sarcon workers who were at early lunch rather than morning tea. This would mean that all the witnesses were mistaken about the time of the visit. In the circumstances I do not think the exhibit is of much assistance. Construction of Undertaking 52 Counsel for CFMEU and Mr Trohear argue that the undertaking is formulated in terms that are insufficiently precise to allow enforcement and that the undertaking infringes the requirement that the persons to whom the Court's order is directed must be left in no doubt what it is they must do or abstain from doing in order to comply with the order. The principle is clear. It is established by such cases as The Commissioner of Water Resources v. Federated Engine Drivers' and Fireman's Association of Australasia, Queensland Branch [1988] 2 Qd R 385 at 390 per McPherson J. According to Borrie & Lowe's Law of Contempt, 2nd edition, at p. 407: "A person cannot be held guilty of contempt for breaking the terms of an undertaking unless the terms of the undertaking are clear for as Jenkins J, said: 'A defendant cannot be committed for contempt on the ground that upon one of two possible constructions of an undertaking being given he has broken that undertaking. For the purpose of relief of this character I think the undertaking must be clear and the breach must be clear beyond all reasonable doubt'." -- 22 of 56 -- 18 53 The submissions rely substantially upon the inclusion in the undertaking of the adjective "lawful". The undertaking given by the CFMEU and Mr Trohear was, relevantly, that each of them would refrain from any act or omission having the object: (a) of interfering with any lawful agreement between the plaintiff and any other person for the supply oflabour on hire to such other person; and/or (b) of preventing the making of any lawful agreement for hire of labour between the plaintiff and such other person; and/or (c) of directly or indirectly preventing or hindering the lawful supply by the plaintiff of labour on hire to such other person. 54 The defendants submit that whether there has been a breach of the undertaking depends upon whether what was allegedly done interfered with a lawful agreement, or prevented the making of a lawful agreement or prevented the lawful supply of labour. The submission proceeds that the answer depends upon the terms of those agreements, the circumstances in which they were made and such legal knowledge as would allow an opinion to be expressed upon the lawfulness of the agreements. 55 The submission seeks support from the judgment of McPherson J in Commissioner of Water Resources at 390 in which an injunction had been issued restraining the respondents from "procuring a breach '" of the contract between the Commissioner ... and White Industries '" by refusing to work at the construction site ...". McPherson J said: "In its present form the injunction ... restrains the respondents from procuring a breach by the company of its contract with the applicant. In order to comply with the injunction, it would in consequence be necessary for the respondents to refer to the terms of the contract, which is not in their possession, and no doubt also to take legal advice, in order to determine whether, by refusing to work in accordance with their own contracts of employment, they were procuring a breach of the company's contract with the applicant". -- 23 of 56 -- 19 56 The inclusion of the appellation "lawful" as a qualification of the thing which the defendants undertook not to interfere with or prevent does not have the effect of making the undertaking uncertain. In context, the adjective adds nothing significant to an understanding of the subject matter of the undertaking. The word lawful means no more that "normal" or "ordinary". The sense is that the defendants promise not to interfere with or hinder agreements for the supply of labour, or the supply of labour, in the ordinary course of the plaintiff's business. It cannot have been intended that the undertaking would take effect only in respect of those agreements to supply or occasions of supply of labour which the defendant could know were "lawful". Devoid of context the adjective itself is insubstantial. By reference to what particular body of laws is the legality of the agreement or supply to be judged? If it were intended that the defendants should be enabled to judge for themselves or after taking advice, whether the supply of labour were lawful the undertaking, and the wider terms of settlement, would have made provision for the defendant to be equipped with information relevant to the agreements. 57 The clear purport of the undertaking was to oblige the defendants to refrain from conduct which had the object of interfering with or hindering the plaintiff in the ordinary course of his business of supplying contract labour to construction sites. 58 The case is different from that of Commissioner o/Water Resources where the very form of the injunction necessitated an enquiry into the terms of the contract between the plaintiff and its contractor. What was enjoined was "procuring a breach ... of .. , contract". Whether there had been a breach of contract was an essential part of proving a contempt. In this case what is prescribed by the undertaking is conduct of a defined sort. The definition is not rendered uncertain by describing the subject of the protection as "lawful agreements" or "lawful supply". Mr Trohear had no difficulty in understanding that the effect of the -- 24 of 56 -- 20 undertakings was that the union would not interfere in the contractual arrangements between the plaintiff's workers and the plaintiff who was to operate unimpeded (TI79.50; 180.3). This is a succinct but sufficient construction of the undertaking. 59 Mr Hanger QC, then submitted that the terms "impeding the performance", "procuring the breach of (any lawful agreement)" and "preventing the making of any lawful agreement" were each too wide. His point was that union officials attending a construction site may perform legitimate functions such as advising their members of dangers, which might have the consequence of workers on-site attending a meeting or declining to work on a particular task. Consequently if one of those workers had been supplied by the plaintiff there would have been an impediment to the performance of that worker's agreement or breach of an agreement. The submission continues that the phrases encompass conduct which is not contemplated when the undertaking was given and it is thus too wide or uncertain to be enforced. Mr Jessup QC provided the answer when he pointed out that what is proscribed is conduct having the obiect of interfering with or hindering the plaintiff in its supply of labour. Calling a meeting of workers to discuss dangers on a construction site will not constitute an act or omission having the object of interfering with a lawful agreement between the plaintiff and a contractor or preventing or hindering the lawful supply by the plaintiff of labour to that contractor. 60 Mr Hanger's third point was that the use of "andlor" joining and separating the paragraphs of the undertaking was objectionable as leading to ambiguity. Reliance was again placed upon the Commissioner for Water Resources. That case is not authority for the proposition that the use of the phrase will inevitably lead to ambiguity. Fowler (Modern English Usage, 2nd edition) recognises that the "ugly device" is common and convenient in legal documents. Where it appears in the undertaking the words mean no more than the -- 25 of 56 -- 21 defendants undertook not to engage in one or more of the types of conduct described in the three sub-paragraphs, (a), (b) and (c). 61 It was next argued for the defendants that the reference in the undertaking to "lawful agreements" was to be understood as a reference to agreements which were in existence at the time the undertaking was given and it did not apply to any agreements made by the plaintiff for the supply oflabour subsequent to the undertaking. Alternatively, it was argued that if that were not the proper construction of the undertakings it was one reasonably open so that the undertaking was ambiguous. There being two possible constructions, only one of which would support a finding of contempt, the charge could not be sustained. 62 This is clearly wrong. The terms of settlement of which the undertakings were part make it plain that the parties were compromising litigation by agreeing upon terms that would regulate their relationship into the future. The plaintiff and the defendants expressly agreed that the undertaking should continue and should survive the discontinuance of the action. The plaintiff was expressly given the right to take action for breach of the undertaking "at any time hereafter" . 63 I have found that Mr Spinks told Mr Sarri that his company could not use labour supplied by the plaintiff on the Law Courts site in Southport. The result was that Mr Price severed his contractual ties with the plaintiff and became the subject of an agreement to supply labour to Sarcon by an alternative company. I have no doubt that the object of Mr Spinks' call to Mr Sarri was to seek the removal ofMr Price from the site and/or to have him sever his contractual ties with the plaintiff were he to remain. Liability of CFMEU for Conduct of Spinks 64 Mr Price was a member of the BLF. He was a labourer working with plasterers who follow a trade. Both Mr Perrott and Mr Spinks thought, for that reason, that Mr Price too was -- 26 of 56 -- 22 a plasterer and a member of the CFMEU. Mr Spinks acted in the honest but mistaken belief that he was advancing the interests of a member of the CFMEU. In fact, he was officiously acting for a member of a rival union. From this it is said that the CFMEU and Mr Trohear cannot be held responsible for anything done on this occasion by Mr Spinks who was on "a frolic of his own". He was not authorised to act on the union's behalf in relation to Mr Price. 65 In Rantzen v. Rothschild [1864] 14 WR 96 an injunction was granted against the defendants, their servants, agents and workmen to prevent them from demolishing a wall adjoining the plaintiffs house. Notice of the injunction was served upon the defendant's foreman who was illiterate but asked a passing policeman to read the notice for him. The policeman did so but gratuitously advised the foreman to disregard the notice. The foreman demolished the wall. When the defendants were served with the notice they took proceedings immediately to stop the work but were none the less liable for the foreman's contempt. The case was followed in Stancomb v. Trowbridge Urban District Council [1910] 2 Ch 190 in which Warrington J said at 194: "In my opinion, further, the act need not be done by the person himself. In the case of a corporation it cannot be done by the corporation itself, ... such a body can only act by its agents or servants; and I think, if the act is in fact done, it is no answer to say that, done, as it must be, by an officer or servant of the council, the council is not liable for it, even though it may have been done by the servant through carelessness, neglect, or even in dereliction of his duty. That seems to me to follow from Rantzen v. Rothschild ... ". 66 These decisions were approved by the House of Lords in Director-General of Fair Trading v. Pioneer Concrete (UK) Ltd [1995] 1 AC 456. Lord Nolan (with whom Lords Jauncey, Mustill and Slynn agreed) said (at 480): " ... Disobedience by the servants of a company, acting in the course of their employment to an injunction amounts to contempt of court by the employing company unless the conduct of the employees could be described as merely casual or accidental and unintentional ... ". -- 27 of 56 -- 23 67 Warrington J's judgment that a corporation may be liable for the contempt of its servant even where it was constituted by an act which was careless, negligent or even indirection of duty was approved by the High Court in AMIEU v. Mudginberri Station Pty Ltd (1986) 161 CLR 98 at 112. 68 Whether the CFMEU and Mr Trohear are guilty of contempt thus depends inter alia upon the answers to two questions: (i) Was Mr Spinks acting in the course of his employment when he rang Mr Sarri on 21 May, 19977; (ii) If yes to (i), was the conduct constituting contempt merely casual or accidental an unintentional? 69 The concept of course of employment is best understood by having regard to the principles of vicarious liability. According to Fleming, The Law of Torts, 9th edition at p.421: "In general terms, the 'course of employment' is said to encompass such unauthorised acts by the servant as can be regarded as wrongful and unauthorised modes of performing an authorised task. The precise terms of the authority conferred on him is not the test but rather the function, the operation, the class of act to be done - whatever be the instructions as to the time, the place or the manner of doing it." 70 The defendants focus attention upon Mr Spinks' authority, or lack of it, to advance the interests of a member of the BLF. The passage from Dr Fleming's text which is a convenient encapsulation of the principle suggests that focus is misplaced. Rather the question should be was the employee performing a function of a kind which he was employed to do? The answer is clearly in the affirmative. Mr Spinks may not have been authorised to advance the particular interests of Mr Price but he was employed, putting aside the undertaking, to do the very sorts of things he did. He was to argue and remonstrate with employers and contractors -- 28 of 56 -- 24 to secure what he was instructed were the appropriate terms and conditions for building workers who were or might became members of the CFMEU. It is quite fortuitous that Mr Price was not a member. 71 The answer to the second question is clear. Mr Spinks' actions were not casual or accidental. He deliberately communicated with Mr Sarri intending to have the plaintiff s labour removed from the site. Legality of Agreements 72 The plaintiff next argues that the agreement between the plaintiff and Sarcon was unlawful because the terms of Mr Price's engagement did not comply with the Building Tradesman's ... and Builders' Labourers' Construction Award of November 1993. This point is not pleaded and was taken by Mr Hanger QC during final submissions. Mr Jessup QC objected to it on the ground that the submission took him by surprise. I reserved the question whether the defendants could argue this point without having pleaded it so as to allow the plaintiff to answer it. On 16 July, 1997 Shepherdson J directed the delivery of a statement of claim and defence. Order 22 rule 14 provides that each party must raise by its pleading all matters of fact which show that the claim of the opposite party is not maintainable, or that a transaction is void or voidable in point of law. All grounds of defence must be pleaded which, if not raised, would be likely to take the opposite party by surprise or would raise issues of fact not arising out of the preceding pleadings as, for instance, facts showing illegality. The rule has not been complied with and to allow the defendants to take the point now would be unfair to the plaintiff. The matters argued by Mr Hanger are complicated and do not depend only upon questions of law. -- 29 of 56 -- 25 73 Whether the amount paid to Mr Price pursuant to his engagement with the plaintiff was sufficient to satisfy the provisions of the award is not easy to determine. It would involve a detailed analysis of what allowances were payable under the award, in what circumstances and what hours and under what conditions Mr Price had worked. None of this was gone into by the plaintiff in its case because it was not aware that the defendants intended to take the point. To the extent that the point involves questions of law they should, in my view, have been pleaded. Reliance is placed upon a provision of the award which purports to outlaw piecework rates of pay. Mr Price was paid such rates, if one has regard to the definition contained in the award itself, and that is said to make his arrangement unlawful. Mr Jessup QC points out that the Workplace Relations Act 1997 appears to confer jurisdiction on the Industrial Commission to determine, on a case by case basis, whether piecework rates should be allowed on a construction site. The award may thus deprive the Commission of a jurisdiction conferred on it by the Act or it may purport to limit the operation of the Act. On either view there is a respectable argument that the award is invalid. 74 The award on its face applies to "all employers engaging persons in the classifications defined herein on construction work ... and to such employees". There is no direct evidence of the terms of the agreement made between the plaintiff and Mr Price, but assuming that he was engaged on the plaintiff s standard terms he would not have been an employee as the work is ordinarily understood. "Employee" is given an extended definition in section 7 of the Workplace Relations Act but, as the plaintiffs supplementary submissions point out, that extended definition may not be sufficient to deem Mr Price an employee for the purposes of the award. Whether he was or not might well have depended upon a fuller understanding of the relationship between the plaintiff and Mr Price. This topic was not investigated in the evidence because its relevance did not appear on the pleadings. -- 30 of 56 -- 26 75 I mention these matters only to show the complexity lurking in the point advanced by the defendants. It is not fair to the plaintiff that it should be expected to answer the point taken only after all the evidence is concluded. The point should have been precisely articulated in the defence so the plaintiff could meet it by evidence and argument. I uphold the objection and rule that the point, not having been pleaded, may not be relied upon. Conclusion - CFMEU 76 I have found that Mr Spinks was acting in the course of his employment when he rang Mr Sarri and told him, in effect, that the plaintiff was not permitted to supply labour to the construction site at Southport. This conduct constitutes a breach of the third limb of the undertaking as I have construed it. The object ofMr Spinks' conversation was to exclude the plaintiff as a supplier of labour to the site. It was thus to prevent or hinder the lawful supply of labour by the plaintiff to Sarcon. Mr Spinks' conduct was not casual or accidental and the CFMEU is therefore in breach of the undertaking and has committed a contempt of court. Conclusion - Mr Trohear 77 Mr Trohear was a party to the action. He personally gave the undertaking breach of which, by Mr Spinks and his employer, has been established. On his behalf it is submitted that he did not personally commit any breach of the undertaking nor was any servant or agent of his involved in a breach. The plaintiff puts its case against Mr Trohear on the basis that as secretary of the relevant union he was its chief executive and occupied a position analogous to that of a company director. Exhibit 2, the Rules of the CFMEU, appears to make the analogy apt. The most coherent statement of the liability of a director for contempt committed by servants of the corporation to which I was referred appears in Attorney-Generalfor Tuvalu v. Philatelic Distribution Corporation [1990] 1 WLR 926 at 938 in which the Court of Appeal said: -- 31 of 56 -- 27 "There must however be some culpable conduct on the part of the director before he will be liable to be subject to an order of committal under 0 45 r 5; mere inactivity is not sufficient. ... We were referred to the decision ... in Director General ofFair Trading v. Buckland ... in that case Lincoln J ... went on to say: 'Accordingly I reach the conclusion that 0 45 r 5 does not render an officer of a company liable in contempt by virtue of his office and his mere knowledge that the order sought to be enforced was made. Resort can be had to r 5 only if he can otherwise be shown to be in contempt under the general law of contempt.' That remark was however made in a case where there was no finding made against the director of culpable conduct and it should not be taken as meaning that it is only where a director has actively participated in the breach of an order or undertaking that 0 45 r 5 can apply. If there has been a failure to supervise or investigate or wilful blindness on the part of a director of a company his conduct can be regarded as being wilful ... In re Galvanised Tank Manufacturers' Association's Agreement [1965] 1 WLR 1074 makes clear the importance of this. Megaw J said, at p 1090: 'We would, however, emphasise that a company, which has given an undertaking to the Court, must be treated as having failed lamentably and inexcusably in its elementary duty if it fails to take adequate and continuing steps to ensure, through its responsible officers, that those officers themselves, and anyone to whom they may delegate the handling of matters which fall within the scope of the undertaking do not forget or misunderstand or overlook the obligations imposed by such undertaking. ' On any showing in this case if the second defendant was not a party to the breaches of the first order and was not perfectly well aware of what was happening he failed to take adequate and continuing steps to ensure that those to whom he delegated the handling of matters which fell within the scope of the order and undertaking had not forgotten or misunderstood or overlooked the obligations imposed upon them. On his own evidence, apart from the initial instructions which he gave to his employees when in the company of his solicitor, he thereafter left the matter entirely to them." 78 The English RSC 0 45 r 5 is similar in effect to (Qld) RSC 047 r 30. The rule refers to judgments or orders requiring a corporation to do or abstain from doing an act and this case is concerned with an undertaking proffered to the Court not an order made by it. In Biba Ltd v. Stratford Investments Ltd [1973] 1 Ch 281 at 287, Brightman J assimilated the position where an undertaking is given and embodied in the written order of the Court for the purposes -- 32 of 56 -- 28 of 0 45 r 5, to that of a judgment or order enjoining that act. de Jersey J (as the Chief Justice then was) in Madeira v. Roggette Pty Ltd [1990] 2 Qd R 357 thought that (at 364) Biba "confirmed that company directors will ordinarily be personally responsible for their company's contempt, whether or not they have actively brought about the conduct which amounts to the contempt ... ". 79 I therefore approach the case against Mr Trohear on the basis that he will be in contempt if he failed to supervise or investigate the union's affairs with respect to its employee's dealings with the plaintiff or ifhe failed to take adequate and continuing steps to ensure that those to whom he delegated the handling of matters which fell within the scope of the undertaking had not forgotten or misunderstood or overlooked the obligations imposed upon them. 80 The case for Mr Trohear is that subsequent to the undertaking he informed CFMEU organisers, the people who would be likely to come into contact with workers supplied by the plaintiff, about the undertaking, and instructed them that the plaintiff was not to be interfered with and that any dealings involving that company should be through the secretary. A number of letters were written to union organisers informing them of the undertaking and directing "that any matters regarding Evenco are to be taken up with the secretary ... ". With one exception these documents are dated between 4 March, 1987 and 31 January, 1989. The one exception is a memorandum of 15 July, 1997, the day before the motions were due to come on for hearing. It refers in general terms to the undertaking and it advised officials of the CFMEU: "If you find an Evenco worker on your job, you can check his ticket. If he raises any problems with you about rates of pay ... etc don't take up the problem with his employer or builder. Contact me ASAP and I will look after it. We have Supreme Court undertakings to this company. '" I would like to remind you of a decision from the National Executive to sack any officer who doesn't follow policy in regard to these companies and jeopardise the future of the union." -- 33 of 56 -- 29 81 Until 1990, Mr Trohear had been the officer responsible for training organisers and had made a point of advising them of the existence of the undertaking and explaining that they were not to interfere in the contractual arrangements between the plaintiff's workers and the plaintiff. He told them that any problems encountered on-site arising out of labour supplied by the plaintiff would be referred to the secretary or the assistant secretary. When Mr Wigchert took over as training officer Mr Trohear instructed him to include a similar briefing to those undergoing training. As a result for many years part of the induction materials included information about the undertaking and an explanation of what they required of the union and its officials. Mr Wigchert, on his own initiative, removed them from the curriculum because he thought there was no further need of it, there having been no breaches or complaints of breaches by the plaintiff and because the growing complexity of industrial law meant that matters regarded as more relevant by the union were included at the expense of reminding organisers of the undertaking and consequences for their duties. This occurred in about 1995. 82 One more matter should be mentioned. In January 1994 the plaintiff wrote to Mr Trohear to advise him of events at a construction site which appeared to have the result that the plaintiff would be unable to supply labour to the contractor because of the activities of CFMEU personnel. Mr Bosa advised Mr Trohear that the action may constitute a breach of the undertaking. Mr Trohear's reply was that the union was not in breach of the undertaking which he said "we believe we have honoured since 1987". 83 In February 1994, the plaintiff again wrote to Mr Trohear to advise of a similar problem that had arisen at two building sites in St Lucia. Again Mr Trohear replied denying any breach of the undertaking. Mr Trohear's denial evoked a letter from the plaintiff s solicitors in March 1994 which referred to the undertaking and asserted that there had been -- 34 of 56 -- 30 a serious breach of it. It intimated that instructions had been received to commence proceedings for contempt. This time the reply came from the union's solicitors which denied the complaint in fuller terms. 84 The point about the correspondence is that it alerted Mr Trohear to the need to ensure that the CFMEU's officials were aware of: (i) the undertaking; and (ii) what had to be done to comply with it. The second point was easy to communicate. In Mr Trohear's own words it was to allow the plaintiff to operate unimpeded and to alert the secretary should a problem be perceived. The correspondence was a clear warning that the plaintiff expected the undertaking to be honoured. It removed any grounds for complacency that, without effort or supervision on the part of those controlling the CFMEU, there would be no breach of the undertaking. Mr Trohear's attitude, as revealed in his evidence, and as reflected in the defendant's submissions, was that the undertaking had been given many years ago was of little more than historical relevance. Indeed, as I have mentioned, one of the submissions was that the undertaking referred only to contracts in existence in March 1987. The reality is that the undertaking was meant to establish an accommodation between the plaintiff and the CFMEU by which the former was to be allowed to conduct its business in peace in return for which the union avoided contingent liability for a substantial award of damages. The undertaking was clearly meant to regulate the relationship between the parties until further notice. The plaintiff was in business in 1987 and is still in business. There was no basis for the union to believe that the undertaking had drifted into desuetude or that there might not be occasions when its organisers would encounter the plaintiff's workers on a building site. The need for supervision of its personnel to ensure knowledge of and compliance with the undertaking did -- 35 of 56 -- 31 not diminish with the passing of the years. It is to be noted that after the correspondence in 1994 Mr Trohear did nothing to alert his subordinates to the need to ensure that they were aware of and obeyed the undertaking. 85 In my opinion the evidence establishes a failure on Mr Trohear's part to supervise the affairs of the union and its personnel in order to ensure compliance with the undertaking. Penalty 86 It is agreed that should I find that contempt has been proved, the appropriate penalty is a fine. I have been given no material and little by way of submission in relation to the appropriate amount to impose by way of fine. It is said, no doubt rightly, that the CFMEU is a substantial corporation. I was given no information about the financial standing of either defendant. I regard the breach as serious. Mr Spink's conduct was an impertinent and unwarranted intrusion into the conduct of the plaintiffs business. It became apparent during Mr Trohear's evidence that the CFMEU regards the plaintiff with hostility. The undertaking was designed to ensure that the plaintiff could continue to carry on its business free of interference. The union may not like the way the plaintiff operates but it undertook to tolerate a business conducted according to a philosophy different to its own. As well, the contempt tends to undermine the administration of justice if undertakings, having the effect of an order of the Court made to regulate peaceful co-existence between the parties' enterprises, are disobeyed. Respect for the law and the effectiveness of judgments is diminished if parties feel free to ignore the Court's decrees. 87 The fine must underline the importance of obedience to the Court's order and remind the defendants of the plaintiffs rights. In the circumstances I impose a fine of$20,000.00 on the CFMEU and $5,000.00 on Mr Trohear. I allow each defendant two months to pay. In the -- 36 of 56 -- 32 event of default of payment by the CFMEU I give leave to the plaintiff to issue a writ of sequestration against the property of the union. In the event of default by Mr Trohear I order he be imprisoned for one month. Action 1794 of 1988 88 This action, too, was commenced by a writ of summons claiming damages for and an injunction restraining the BLF intimidation and interference with its contractual relationships. It, too, was settled upon terms which included the BLF undertaking to the Court on 17 May, 1988: "To refrain from doing or failing to do any act having the object directly or indirectly preventing or hindering the servants or agents of the plaintiff ... or such building construction workers as the plaintiff may assign from time to time, from entering upon any building site situated in Queensland and from carrying out their lawful employment thereon, provided that the principal contractor on such site has been notified thereof and has made no objection thereto." 89 The plaintiff alleged three instances in which the undertaking has been breached and seeks in respect of each the imposition of a fine. 90 The first instance is thus described in the amended statement of claim: "In or about late January and early February, 1996 at the building site at the Carlton Crest Hotel, Brisbane: (a) The Plaintiff was a party to an agreement with Adco Constructions (the contractor on the site) for the supply by the plaintiff to Adco Constructions of labour on hire and had supplied labour on hire for that site; (c) Tony Whysall said to a representative of Adco Constructions words to the effect that workers associated with the plaintiff should not be used on site unless the plaintiff had an EBA with the BLF; (d) The plaintiff did not have an EBA with the BLF (e) Tony Whysall knew that the plaintiff did not have an EBA with the [BLF]". 91 Mr Bosa's evidence proves the allegation in (a). -- 37 of 56 -- 33 92 Mr Peter Flood was employed in the early part of 1996 as a site manager by Adco Constructions Pty Ltd which was refurbishing the Carlton Crest Hotel in Brisbane. As part of its preparation for the building work Adco had agreed with each of the BLF and the CFMEU that all contractors it engaged on the site would be a party to the Enterprise Bargaining Agreement ("EBA") which Adco had made with those unions, or else have themselves made an EBA with the unions. 93 An example of an EBA is exhibit 11. It was delivered to the plaintiffs office by Mr Whysall who was an organiser employed by the BLF at about the time with which this complaint is concerned. The delivery of the agreement was a tacit invitation to the plaintiff to sign it. The plaintiff declined on the basis that the agreement is applicable only to a company which employs building workers. The plaintiff does not carry, on business in that way. The terms of the proposed agreement provide for the payment of wages and allowances at specified amounts and rates applicable in a variety of circumstances. Clause 1.4.2 provided that "all-in payments to employees will not be made. All-in payments are defined as an hourly rate or piece work rate which is meant to cover wages and all allowances, such as annual leave, sick leave, etc., on which tax is being paid using the Prescribed Payments System." This of course is the very means by which the plaintiff operates. On a quick reading of the agreement it is difficult to notice any benefits conferred upon the employer/contractor. 94 Mr Flood recalls that early in 1996 Mr Whysall came to the site on several occasions. He said that the plaintiff, among other sub-contractors, "were to have EBAs as per [Evenco' s] agreement with the union". The other sub-contractors mentioned by Mr Whysall all signed an EBA with the BLF. The plaintiff did not. Mr Whysall said to Mr Flood that the plaintiff "shouldn't be on the job if they don't have an EBA". The statement was repeated on a number of visits. Eventually Mr Flood "dismissed all the guys that worked for Evenco and -- 38 of 56 -- 34 asked them to sign up with another labour-hire company". In cross-examination by counsel for the BLF, it was put to Mr Flood that Mr Whysall had said to him: • that he had become aware that some labourers on-site were from a labour-hire company known as Evenco; • that Evenco did not have a statement of intent with the BLF; ("Statement of intent" and "EBA" are interchangeable terms.); • that Evenco did not make sufficient provision for superannuation to its employees; • that Evenco was not paying the appropriate rate payable under Adco's EBA; • that Evenco was paying tax by PPS. Mr Flood agreed with each proposition. 95 He contacted a labour-hire company, Project Personnel Pty Ltd which attended the site and to which the workers engaged by the plaintiff were transferred, thus ending their contractual arrangement with the plaintiff. This occurred because Mr Flood wished to keep the workers on-site and "with Evenco not having an EBA [he] had to have an employment or a labour-hire company that had an EBA ... because the unions had ... said that it ... was a requirement ... in Adco's EBA that sub-contractors employed on that job had to have an EBA ... ". 96 One of the workers who was being supplied to his site by the plaintiff, was Mr Anderson. Mr Whysall said to him that the plaintiff was not paying him what it should. A rate of $22.00 or $24.00 would have been "a better scenario, taking into account public holidays, sick pay and the like." Mr Whysall also suggested that Mr Anderson would be better off if he were contracted to another company though perhaps he did not mention Project Personnel Pty Ltd by name. In fact it was to that company that Mr Anderson transferred his -- 39 of 56 -- 35 allegiance. Mr Anderson resented being required to change. He said that Mr Whysall spoke to him "about the dramas that had evolved over that day with regard to the EBA and ... getting changed from Evenco to Project Personnel". He said "I was already being paid fairly and squarely and as far as I was concerned I was quite happy with that arrangement". 97 Another labourer supplied to the site by the plaintiff was Mr WackIey. He recalled Mr Whysall speaking to him, Mr Anderson and two others and saying "that Adco had signed an agreement with the unions and ... we either have to change over to another labour-hire company or leave the site". 98 Mr Whysall's account was quite different. It was that his first visits to the site were pre-occupied with questions of safety. After he had made a number of visits he was approached by some workers who had a variety of complaints all centred on short payment. Some complained of being paid too little for overtime, some that they were not receiving redundancy payments and some that they were being paid at an hourly rate. Among the complainants were labourers engaged by the plaintiff whose presence on-site Mr Whysall first learned from Mr Flood with whom he discussed their complaints. According to Mr Whysall, Mr Flood said that they were good workers and he wanted to keep them on the job. He asked if there would be a problem "with them working for another company on the job". Mr Whysall replied he did not care as long as they received "their right entitlements". 99 Mr Whysall was aware of the undertaking given by his union and understood it to mean that it prevented his hindering any of the plaintiff's labour in any way. He understood, further, that the undertaking would be breached ifhe should suggest to a builder that "Evenco people should leave the site". He denied making a suggestion to that effect or that he suggested to Mr Flood that the plaintiff s labourers should transfer to another labour-hire company. -- 40 of 56 -- 36 100 I much prefer the evidence of Mr Flood, Mr Anderson and Mr Wackley to that of Mr Whys alL I am quite unable to have any confidence that Mr Whysall's evidence was honest and I am satisfied it is not reliable. Mr Whysall figures in the next instance of alleged contempt and in that his evidence was demonstrably unacceptable. My assessment of his evidence in this segment of the action is coloured by what he said in the other. In addition there are significant indicators that his evidence in connection with the events at the Carlton Crest site is unreliable. 101 It is not credible that Mr Whysall did not know that the workers whose cause he discussed had been supplied by the plaintiff before he spoke to Mr Flood. Mr Whysall claims that these men came to him to complain that they were not being paid their full due and that they received less than other workers on-site who were performing the same work. I cannot accept that Mr Whysall did not ask them who was paying them and for whom they worked. This version is wholly inconsistent with what was put to Mr Flood in cross-examination: "Mr Whysall then said to you that he had become aware of the fact that there were some labourers on the site from a labour-hire company known as Evenco?" Mr Flood agreed. Moreover, in cross-examination Mr Whys all agreed that in conversation with Mr Flood it was he who had first mentioned the plaintiff by name. He immediately resiled from that stance but the contradiction remains. Moreover, the account that it was the plaintiff s workers who approached Mr Whysall to complain about their pay and condition sits uncomfortably with the testimony ofMr Anderson and Mr Wackley. It was not put to either of them that they had sought out Mr Whysall to voice a complaint. Mr Anderson had no complaints. He was happy with his remuneration and he thought Mr Whysall had no business interfering between him and the plaintiff. -- 41 of 56 -- 37 102 There is an obvious point that Mr Whysall has a particular interest in the outcome of these proceedings and none of Mr Flood, Mr Anderson or Mr Wacldey has any such interest. 103 I reject Mr Whysall's evidence. I am satisfied that Mr Whysall said to Mr Flood that the plaintiff should not be allowed to supply labour to the job unless it had an EBA with the BLF. It is not in contest that the plaintiff did not have such an EBA. Mr Whysall admitted that he knew there was no such agreement. I am satisfied that the facts alleged in paragraph 10 of the amended statement of claim have been proved. Logan Hyperdome 104 The allegation here is that: "On or about 15 July 1996 at the building site at Logan Hyperdome, Logan City: (a) The Plaintiff was a party to an agreement with Cordukes Limited (the contractor on the site) for the supply by the Plaintiff to Cordukes Limited of labour on hire and had supplied labour on hire for that site. (b) Ken Boddy was the site foreman. (c) Tony Whys all said to Ken Boddy words to the effect that he [Boddy] would not be able to use any Evenco labour onsite; (d) Tony Whysall said to Ken Boddy words to the effect that he [Boddy] should not continue to use the Evenco labourer then on-site." 105 Here, too, Mr Bosa's evidence proves the allegation in (a). 106 The plaintiff sought leave to amend by adding particular (d) at the conclusion of the BLF's case. Mr Douglas QC, objected to leave being given to make the amendment but conceded, very fairly, that if the amendment were made he would not have sought to lead any further evidence to answer it. The plaintiff supported the amendment on the ground that it did no more than reflect the evidence that had been led in support of this allegation of contempt. I reserved my ruling on the application. -- 42 of 56 -- 38 107 Cordukes Limited ("Cordukes") was the head contractor undertaking improvements to the Logan Hyperdome Shopping Centre. In July 1996 it asked the plaintiff to supply a labourer. In response, Mr Mahon was sent to the site. Mr Boddy was the general foreman employed by Cordukes to oversee the improvements. On 15 July, 1996 Mr Whys all called at Mr Boddy's office and told him, as a matter of courtesy, that he was on-site. He then went onto the site to talk to workmen who were members of the BLF. Mr Whysall returned to Mr Boddy's office and asked him "if [he] would have one of his members removed from site". He identified the member by name and as being the "builders labourer that [Mr Boddy] had hired from Evenco". Mr Whysall gave as his reason for the request that Evenco, who had supplied Mr Mahon was not a party to "the enterprise bargaining". Mr Boddy rejected the overture and told Mr Whysall that he would not direct Mr Mahon to leave the site. Mr Whysall replied that he would contact Cordukes' office. 108 Mr Boddy made a note of the events in his daily site report and in his own site diary in which he wrote: "Tony Whysall, BLF union on-site - stated that Cordukes should not be employing hire labour from Evenco Hire as they do not pay full rates to their employees and we were not part or signed up with the enterprise bargaining. Instructions from Mario Schneider to terminate Evenco and hire from Australian Trades and Labour". 109 Mr Schneider was Mr Boddy's superior at Cordukes. On the same day, 15 July, 1996, Mr Boddy sent a fax to the plaintiff advising it that he could not continue to employ labour supplied by the plaintiff on the Loganholme site "until further notice, pending any dispute with the unions". 110 The entry in the site report is briefer. It read "contact Mario at office explain about BLF union preference for hire labour people". -- 43 of 56 -- 39 111 In cross-examination it was put to Mr Boddy that Mr Whys all said to him that "Cordukes had on-site a company by way of a contractor who did not have the appropriate EBA". Mr Boddy accepted that might have been said. He agreed with another suggestion that Mr Whysall had expressed a concern that Mr Mahon was not being paid as much by way of superannuation as was required by the EBA between Cordukes and the BLF. This occurred: " ... and all that Mr Whysall expressed to you was concern about the fact that this man was on the site not apparently protected in accordance with the EBA? - Agreed Is that right? - That's right. No more than that? - No more than that. Now, Mr Whysall never said to you words to the effect, did he, that you would not be able to use any Evenco labour on-site, did he? - I can't recall." 112 The cross-examination raised no challenge to the accuracy or veracity of what Mr Boddy wrote in his diary concerning Mr Whys all 's visit. Mr Boddy was not invited to resile from his evidence-in-chiefthat Mr Whysall asked him to remove Mr Mahon from site because the plaintiff was not a party to EBA and I do not understand the passages in cross- examination which I have quoted to have that effect. 1 I3 Mr Mahon, who lost his job at the hyperdome site on the day ofMr Whysall's visit, remembered the occasion. Mr Whysall approached him and asked him if he was a financial member of the BLF. Mr Mahon said "Yes, mate." Mr Whysall appeared to doubt the answer and Mr Mahon took him to his car where he had left his union ticket which showed him to be a paid-up member of the BLF. Apparently satisfied, Mr Whysallieft. He did not ask him anything about his rate of pay or what entitlements, if any, he received by way of BUSS or BERT payments. 114 No challenge was made to Mr Mahon's account of his encounter with Mr Whysall. -- 44 of 56 -- 40 115 Mr Whysall's evidence was quite brief. He went to the site and spoke to a number of workers. He was asked: "Was Evenco's name mentioned during that conversation?" He answered enigmatically: "A couple of workers mentioned that there was people on the site that weren't getting full entitlements". To the question: "In what context was Evenco mentioned by some of these workers?" he answered: "Someone just mentioned to me that 'there's a labourer working on-site', that 'he's been doing all the dirty' - he was working in a dirty dusty area and he wasn't getting full entitlements". 116 Mr Whysall then spoke to Mr Boddy and '}ust mentioned to him how many labourers he's got on the site". Mr Boddy "then turned around" and, pointing in Mr Mahon's direction, said "he's got one labourer working over there". Mr Whysall asked ifhe was receiving his full entitlements to which Mr Boddy replied that he was working for Evenco. Mr Whysall "then turned around and asked Mr Boddy to make sure that he's [Mr Mahon] receiving his full entitlements as workers over there have turned around and said he's not getting it". 117 Mr Whysall said he did not speak to Mr Mahon. In cross-examination he re-affirmed that recollection and denied that he had asked for his union card or gone with him to his car. 118 I found Mr Whysall's evidence quite unsatisfactory. Indeed his account of his conversation with Mr Boddy verges on the nonsensical. It was no part of the cross- examination ofMr Boddy or Mr Mahon that the latter had been singled out to do "dirty work" for inadequate pay. As I mentioned it was not put to Mr Mahon that he had invented or was mistaken about his conversation with Mr Whysall. I do not accept that if the conversation -- 45 of 56 -- 41 with Mr Boddy were as Mr Whysall describes it that Cordukes would have been moved to terminate Mr Mahon's, and the plaintiffs engagement. I am satisfied that Mr Boddy's diary note accurately summarises his dealings with Mr Whysall. He was told that "Cordukes should not be employing hire-labour from Evenco Hire as they do not pay full rates to their employees and were not part or signed up with the enterprise bargaining". 119 On Mr Whysall's own account he was concerned that "the labourer doing the dirty work" was not being paid his full entitlements. This is a question begging phrase. Mr Mahon's entitlements depended upon the terms of his contract with the plaintiff. He was paid an hourly rate rather than a weekly wage plus allowances. Whether he was better or worse off than a worker employed under the EBA between Cordukes and the BLF is a question that could only be answered after a detailed analysis that was not essayed in this case. The need for such an analysis before it could be said that someone was not "getting full entitlements" did not even occur to Mr Whysall. Without that enquiry Mr Whysall had no legitimate basis for concern that Mr Mahon was being under-remunerated. Yet he admits he was concerned. In context this can only mean that he did not care about the partiCUlar worker's position but cared only that all workers on-site were covered by the terms of an EBA to which the BLF was a party. 120 I am satisfied that Mr Whysall asked Mr Boddy to have Mr Mahon removed from the site because he was contracted to the plaintiff and because the plaintiff did not have an EBA with the BLF. I think the communication between Mr Whysall and Mr Boddy makes out each of the allegations in paragraph 11 (c) and (d). I can see no real difference between them. Particular (d) may more accurately reflect what Mr Whysall said, the true effect of it being seen in what Cordukes did. It removed Mr Mahon from the site. The only reason is that he was provided by a company that did not have an EBA with the union. -- 46 of 56 -- 42 121 I see no point in not allowing the amendment and accordingly I give leave to make it. Everton Park Shopping Centre 122 The allegation is that: "On or about 6 May, 1997 at the building site at Everton Park Shopping Centre, Brisbane: (a) The Plaintiff was a party to an agreement with Hutchinson Builders [the contractor on the site] for the supply by the Plaintiff to Hutchinson Builders of labour on hire and had supplied labour on hire for that site. (b) Darryl Gersekowski was the site foreman. (c) John Steele said to Darryl Gersekowski words to the effect that Evenco had to be removed from the Site". 123 The allegation in paragraph (a) is again made out by the evidence ofMr Bosa. 124 Mr Gersekowski was employed as foreman for Hutchinson & Co, Builders who were erecting a shopping centre at Everton Park. At the time there were on the site only one labourer who had been engaged through the plaintiff, and a machine operator. The labourer's name was Siladji. On 6 May, 1997 Mr Steele, an organiser employed by the BLF, came to the site. He was accompanied by Mr Logue, an organiser employed by CFMEU. Mr Logue's presence was initially the subject of an allegation that the CFMEU had committed a contempt by breaching the undertaking it had given but that allegation was abandoned and it is necessary only to consider Mr Steele's involvement. 125 Mr Gersekowski's evidence-in-chiefwas compressed. He said that Mr Steele asked who were the labourers on the site and then said "You know he's on PPS?" Mr Gersekowski replied that he knew that to be so. Mr Steele then said "I want him off the site tonight or Wednesday night". Mr Gersekowski refused to bow and said "no body will get him off the site, but if Scott Hutchinson rings me up and tells me to get him off the site I will remove him but otherwise he stays". 126 As part of his duties Mr Gersekowski kept a site diary. For 6 May, 1997 he wrote: -- 47 of 56 -- 43 "One labourer, Evenco. One bobcat, BLF. John Steele and Graham Logue on-site, CFMEU. 11 :30 a.m. John Steele advised myself not to have Evenco labour as of Wednesday. To finish tonight. My reply: until Scott Hutchinson advises, he will stay." 127 Mr Gersekowski did expand his evidence. He explained that Mr Steele asked who the labourer was and was told his name and that he worked for Evenco. Mr Steele then said "Have him removed from the site". 128 In cross-examination Mr Gersekowski explained that when Mr Steele called work was at an early stage. There were only two workman on-site, Mr Siladji and a bobcat driver. Mr Steele spoke to Mr Siladji while Mr Logue, apparently spoke to the other who was a member of the CFMEU. Having spoken to Mr Siladji, Mr Steele returned to the site office and said that he would like Mr Siladji to be given full-time work. He "expressed the opinion ... that rather than employ a labourer on a day-to-day basis there was quite enough work ... on the site for a labourer full-time". Mr Gersekowski pointed out that Hutchinson's did not employ permanent labour but engaged contract workers through companies such as the plaintiff. It was put to the witness that Mr Steele said no more than I have summarised but Mr Gersekowski insisted that Mr Steele said that ifMr Siladji was not to be made permanent he was to be removed from the site. An attack of sorts was made on the diary entry. Mr Gersekowski had initially commenced the entry in the diary space for 5 May rather than 6 May. He explained that he had made the entry on the afternoon ofMr Steele's visit or the next morning. He realised he was writing it against the wrong date so he re-wrote it. 129 The diary is large, each page being about equivalent in size to a foolscap sheet. There are two days to the page. The entry for Tuesday 6 May is the bottom half of the page which has been cut horizontally about the middle of the page and vertically down the margin near the spine. The entry has then been re-inserted by means of clear adhesive tape. This was -- 48 of 56 -- 44 done, Mr Gersekowski told the Court, so that he could fax his diary entry to his employer who had requested it about a week after the event. The entries for the days following Mr Steele's visit, Wednesday 7 and Thursday 8 May appear contemporaneous in context. It is clear that the excision of that part of the page dealing with Tuesday 6 May was made after the entry for Wednesday 7 May had been written up. The cut divides a line of writing which records a meeting on the afternoon of7 May. That is on the reverse of the page which contains space for 5 and 6 May. There is nothing about the diary itself which suggests the Mr Gersekowski's evidence is not accurate. l30 Mr Steele is an organiser employed by the BLF. He and Mr Logue went to the shopping centre site. He found only one labourer, Mr Siladji, who was a member of his union. He spoke to him and ascertained who his employer was and that he had not paid his membership dues because of financial hardship. Mr Steele then returned to the office and suggested to Mr Gersekowski that he should be employed permanently on a five day week. Nothing else was said. Mr Steele did not vary his evidence in cross-examination. l31 This part of the case depends entirely on an assessment of the credit of the two witnesses. There is nothing in Mr Steele's evidence which itself suggests that it is unreliable. Nor, of course, was there anything in Mr Gersekowski's evidence of that nature. If it were only word against word I might hesitate to find that facts supported by the evidence of one had been proved beyond reasonable doubt but I see no reason to doubt the authenticity of Mr Gersekowski's diary entry. There is no reason why he should fabricate it. He deposed to the conversation with Mr Steele from his own recollection which is corroborated by the diary. He did not waiver under cross-examination and there was nothing about his evidence or his manner of giving it that gave me occasion to doubt that what he said was truthful and reliable. As with the other witnesses called by the plaintiff (apart, of course, from Mr Bosa) he has no -- 49 of 56 -- 45 interest in the outcome of the proceedings. As I say, without the diary entry I may not have been prepared to find beyond reasonable doubt that Mr Steele told Mr Gersekowski that Mr Siladji was to be removed from the site, knowing that Mr Siladji had been supplied by the plaintiff. I am so satisfied by the support given Mr Gersekowski's evidence by the diary. Accordingly I find that the allegation in paragraph 13 of the amended statement of claim to be made out. Construction of Undertaking 132 The defendants take much the same point in relation to the undertaking as was argued in action no. 4843 or 1986. The undertaking in this case, omitting irrelevancies, was that the defendant would: "refrain from doing any act having the object of directly or indirectly preventing or hindering such building construction workers as the plaintiff may assign from time to time from entering upon any building site in Queensland and from carrying out their lawful employment thereon, provided that the principal contractor on such site has been notified thereof and has made no objection thereto". 133 The BLF advances two arguments. The first concerns the use of the word "lawful" to qualify the worker's employment. The argument is identical to that advanced by the CFMEU and for the reasons I gave when dealing with the case against that union I conclude that the inclusion of the word "lawful" does not make the undertaking uncertain. 134 The second point arises from the proviso. It is submitted that what the principal contractor must be notified of and make no objection to is conduct occurring on the building site. This conduct may be: (a) the conduct of the union organisers hindering the plaintiffs workers; (b) the plaintiff assigning workers to the site; (c) both (a) and (b). -- 50 of 56 -- 46 No evidence was led that the principal contractors, respectively Adco, Cordukes and Hutchinsons, were notified of or did not object to the conduct of the BLF organisers which is the subject of the three complaints. The submission continues that, there being at least two constructions of the undertaking, the plaintiff does not prove its case beyond reasonable doubt by showing that there has been a contempt on only one of the constructions of the undertaking. If the proviso means that the undertaking does not have effect unless the principal contractor has been notified of and made no objection to the union's prevention or hindrance of the plaintiffs workers carrying out their lawful employment, the evidence does not establish that the undertaking became operative because no evidence was led to satisfy the prOVISO. 135 The plaintiff s answer is that, as a matter of grammar and of common sense, the proviso does not refer to union activity preventing or hindering workers entering upon or carrying out their employment, but to the worker's entry onto sites and performance of their employment. That is to say the plaintiff s construction of the undertaking is that the union may not prevent or hinder workers assigned by the plaintiff from entering on a building site or performing work on the site provided the principal contractor to the site knows of their engagement and does not object to it. 136 I prefer the plaintiff s construction. It has the consequence that where the principal contractor is informed that the plaintiff has provided workers to the site and does not object to their presence, the BLF may not prevent or hinder their attending at the site or working. The union's construction has the consequence that it may prevent or hinder the plaintiffs workers from entering or working on a site only when the principal contractor has been told and not objected to the acts constituting prevention or hindrance. In cases such as the three in question, where the principal contractor itself engaged the plaintiff to provide labour to its -- 51 of 56 -- 47 site, the union's construction is unintelligible. The undertaking would only operate in a circumstance which ex hypothesi it would not be allowed to operate because the principal contractor wanted the plaintiff s labourer on-site. 137 Further it is not easy to see how the principal contractor could be notified and not object to acts of prevention or hindrance in advance of their occurrence. Yet if the union's construction be correct that would be required. 138 The grammatical structure of the undertaking also favours the plaintiff's construction. The pronouns "thereof' and "thereto" are a substitute for a subject matter which occurs in the passage preceding the proviso. There are two possible candidates. One subject matter is "labour, assigned by the plaintiff, entering or carrying out employment". The other subject is "preventing or hindering" such labour. The second is too far removed from the proviso to conveniently be the content of its pronouns. 139 The BLF will be in breach if it has engaged in conduct which contravenes the terms of the undertaking as construed by the Court, whether or not the union understood it that way. 140 "But, if [an undertaking] bears a meaning which the Court is satisfied is one which ought fairly to have been in the contemplation of the person ... who gave the undertaking as a possible meaning, the fact that that meaning results from a process of construction and involves a choice of possible meanings does not, in my opinion, preclude the Court from enforcing the ... undertaking in the sense which the Court assigns to it." Per Barwick CJ in Australian Consolidated Press Ltd v. Morgan (1965) 112 CLR 483 at 492. 141 I am satisfied that the conduct which I have found in respect of each of the three allegations of contempt was a breach of the undertaking. Mr Whysall' s conduct on the site of the Carlton Crest Hotel and the Logan Hyperdome and Mr Steele's at the Everton Park Shopping Centre were, in each instance, acts which prevented or hindered the workers whom the plaintiff had assigned to those sites from carrying out their lawful employment. I have no -- 52 of 56 -- 48 doubt that the object of that conduct was to hinder Messrs Anderson, Wackley, Mahon and Siladji from carrying out the terms of their engagement with the plaintiff. It does not matter whether the object was to have those workers removed from the site or to end their contractual relationship with the plaintiff as a condition for remaining on-site. The "lawful employment" referred to in the undertaking is the workers' engagement with the plaintiff. The undertaking is broken if the BLF does an act having the object of hindering a worker assigned by the plaintiff from performing his engagement with the plaintiff. Endeavouring to replace the plaintiff as the labour hiring company for those workers is hindering the performance of their engagement with the plaintiff, the "lawful employment" referred to in the undertaking. Penalty 142 Mr Whysall became a union organiser in February 1994. His knowledge of the undertaking and what impact it had on his role as an organiser was limited to having been told on two or three occasions that the plaintiff was a labour-hire company whose workers were not covered by an EBA and that ifhe had any problems with the plaintiffs workers "coming up" to him he was to behave as he would with any other worker if their concerns were with safety or wages but if there were any other concerns he was to contact his superiors. He was never shown a copy of the undertaking and his understanding of its effect was that he was "not to hinder any worker in any way. Virtually not to do any hindering to any workers". The information he was given was not imparted by way of formal instruction but occurred in "general talk ... having a beer with fellow organisers". 143 Mr Steele had been an organiser with the BLF since February 1985. He was dimly aware of the legal proceedings taken by the plaintiff and of the undertakings given to compromise the action. He was given instructions by the secretary "to leave Evenco alone -- 53 of 56 -- 49 ... [to] talk to the membership or their employers but to do nothing else". These instructions were repeated from time to time by Mr Simcoe when he became secretary. 144 In January and February, 1994 the plaintiff and its then solicitors wrote to Mr Simcoe to advise him of incidents that had arisen at two separate building sites which the plaintiff thought amounted to breaches of the undertaking. Mr Simcoe replied very tersely to the first communication. The evidence does not show whether he answered the second. Despite the intimation that the plaintiff continued to expect the undertaking to be honoured and its business not to be interrupted by the BLF there is no evidence that Mr Simcoe did anything to alert the union's officers to the obligations embodied in the undertaking. 145 It is apparent that when Messrs Whysall and Steele spoke to contractor about removing the plaintiff s workers from various sites or insisting that they be covered by an enterprise agreement (which would have the effect of ending their contract with the plaintiff) each of them knew he was acting contrary to the undertaking. Their conduct was, to use the familiar word, contumacious. They deliberately engaged in an activity they knew their union had solemnly undertaken to the Supreme Court it would not do. There was conscious defiance of the authority of the Court and complete disregard for their obligation not to victimise the plaintiff's supplied labour. It was clear from Mr Whysall's evidence that BLF officials object to the manner in which the plaintiff carries on its business. The union's clear preference is to have every worker on a building site subject to the terms of an enterprise bargaining agreement. There is no prohibition against having such a preference for which there may be valid grounds, but the BLF gave the undertaking to enable the plaintiff to carry on its business notwithstanding its opinion of the plaintiff s mode of operation. 146 The union is liable for the actions of its organisers. The secretary of the union was clearly remiss. He did not issue any written instruction or explanation to organisers to give -- 54 of 56 -- 50 them a proper understanding of the meaning of the undertaking and the restriction it placed on their activities on sites to which the plaintiff had sent labour. There was not even, it seems, proper instruction given orally. It was left to the organisers to gather from general discussion that the plaintiff's workers could not be treated as cannon fodder in a war for mastery of the workplace. 147 The breaches of the undertaking which I have found established were serious. They were committed in the conscious though imperfect knowledge that what they were doing had been prohibited by the Court. The conduct was persistent and, perhaps, systematic. 148 The fines imposed must reflect the seriousness of the breaches and the fact that the undertakings were given to allow the plaintiff to carry on its business without interference. As well the fines must serve to demonstrate that defying the orders of the Court cannot be tolerated in a civilised society where rights are upheld by judicial decree. The public must have confidence that such decrees will be obeyed and that remedies given to enforce rights are worthwhile. 149 I regard the BLF's breaches as more serious than Mr Spinks' but because there will be an accumulation of penalties in respect of the three breaches I will reduce the size of the fine to be imposed in each instance. 150 In respect of each of the three breaches I impose a fine on the BLF of $20,000.00 and allow three months to pay. I do not impose a further fine on Mr Simcoe. His position is different to that ofMr Trohear. He did not himself give an undertaking. His liability arises only pursuant to 0 47 r 30 by which an undertaking given by a corporation may be enforced by proceedings against an officer. To impose a fine against Mr Simcoe in addition to the fines imposed against the union would, in my view, duplicate the penalty. It is appropriate to proceed against an officer when to proceed against the corporation would be pointless as, for -- 55 of 56 -- 51 example, where it has no assets. No material has been furnished to suggest that the fines will not be paid by the union which will thereby be punished. 151 In the event of default in payment of the fines I give the plaintiff leave to issue a writ of sequestration against the property of the BLF. 152 I will hear submissions on costs in both actions. -- 56 of 56 --