FEDERAL CIRCUIT COURT OF AUSTRALIA
| AUSTRALIAN BUILDING AND CONSTRUCTION COMMISSIONER v AUIMATAGI & ANOR | [2017] FCCA 1722 |
| Catchwords: INDUSTRIAL LAW – Fair Work – whether John Holland Pty Limited had a workplace right – whether John Holland Pty Limited exercised a workplace right – whether the first respondent organised industrial action – whether action taken by the respondents prejudiced John Holland Pty Limited in relation to its contract for services – whether industrial action was taken on the John Holland Pty Limited site of construction – whether the respondents engaged in adverse action within the meaning of section 342 item 7(a) of the Fair Work Act 2009 (Cth) – whether the respondents engaged in adverse action within the meaning of section 342 item 7(c) of the Fair Work Act 2009 (Cth) – whether the respondents contravened section 340 of the Fair Work Act 2009 (Cth) – whether the reverse onus provided for in section 361 of the Fair Work Act 2009 (Cth) applies – whether the first respondent organised any action against John Holland Pty Limited with intent to coerce John Holland Pty Limited not to exercise a workplace right or to exercise a workplace right in a particular way – whether the first respondent engaged in action in contravention of section 343 of the Fair Work Act 2009 (Cth) – whether the conduct of the first respondent is conduct of the second respondent in terms of section 363 of the Fair Work Act 2009 (Cth). |
| Legislation: Fair Work (Registered Organisations) Act 2009 (Cth) |
| Applicant: | AUSTRALIAN BUILDING AND CONSTRUCTION COMMISSIONER |
| First Respondent: | POMARE AUIMATAGI |
| Second Respondent: | CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION |
| File Number: | SYG 1823 of 2015 |
| Judgment of: | Judge Emmett |
| Hearing dates: | 15, 16 and 17 November 2016 7 December 2016 |
| Date of Last Submission: | 16 June 2017 |
| Delivered at: | Sydney |
| Delivered on: | 28 July 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr Bryce Cross |
| Solicitors for the Applicant: | Bartier Perry |
| Counsel for the Respondents: | Mr Jim Pearce |
| Solicitors for the Respondents: | Taylor & Scott Lawyers |
INDEX
1. Background.......................................................................................................... 1
2. The applicant’s allegations.................................................................................. 2
3. Relevant Legislation Provisions........................................................................ 4
4. Did John Holland have a workplace right?........................................................ 6
5. The Applicant’s Witnesses.................................................................................. 9
5.1 Mr Glen O’Connor....................................................................................... 9
5.2 Mr James Brown......................................................................................... 14
5.3 Mr Jeffrey Wall.......................................................................................... 17
5.4 Mr Trent Smith............................................................................................ 18
6. The Respondents’ witnesses............................................................................. 20
6.1 Mr Pomare Auimatagi................................................................................ 21
6.2 Mr Tom Rigby............................................................................................. 23
6.3 Mr Michael Preston................................................................................... 24
7. Mr Parsons......................................................................................................... 26
8. Findings of Fact................................................................................................. 26
9. Was John Holland asserting its workplace right?........................................... 30
10. Did the respondents engage in adverse action?............................................ 32
10.1 Item 7(a).................................................................................................... 34
10.2 Item7(c).................................................................................................... 36
11. Section 361 Reverse Onus............................................................................. 36
12. Did the first respondent organise any action against John Holland with the intent to coerce John Holland not to exercise its workplace right; or not to exercise its workplace right in a particular way in terms of s.343 of the FW Act?............................................................................. 38
12.1 Negation of choice................................................................................... 39
12.2 Was the pressure unlawful or unconscionable?..................................... 41
13. Respondents’ pleading allegations................................................................. 41
14. Conclusion and liability of the second respondent...................................... 43
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1823 of 2015
| AUSTRALIAN BUILDING AND CONSTRUCTION COMMISSIONER |
Applicant
And
| POMARE AUIMATAGI |
First Respondent
| CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION |
Second Respondent
REASONS FOR JUDGMENT
1. Background
The applicant seeks declarations and pecuniary penalties against the first and second respondents arising out of alleged breaches of the Fair Work Act 2009 (Cth) (“the FW Act”). By consent, the applicant has discontinued against the third respondent.
At the commencement of the proceeding, the applicant was the Director of the Fair Work Building Industry Inspectorate (“the Director”). At all relevant times, the applicant was a Fair Work Building Industry Inspector by operation of s.59A of the Fair Work (Building Industry) Act 2012 (Cth) (“the FWBI Act”) and by operation of s.59C of the FWBI Act and s.539 Item 11 of the FW Act eligible to bring this proceeding.
On 2 December 2016, by operation of Item 19 of Schedule 2 to the Building and Construction Industry (Consequential and Transitional Provisions) Act 2016 (Cth), the Australian Building and Construction Commissioner took the place of the Director as the moving party in this proceeding.
The first respondent was at all material times an employee of the second respondent, and therefore an official of the second respondent within the meaning of s.12 of the FW Act.
The second respondent is an organisation of employees registered under the Fair Work (Registered Organisations) Act 2009 (Cth). As such, the second respondent was at all material times an “industrial association” within the meaning of s.12 of the FW Act. The second respondent is also a “building association” and a “building industry participant” within the meaning of the FWBI Act.
At all material times, John Holland Pty Limited (“John Holland”), a company duly incorporated, was engaged as the principal building contractor at a construction project at a site in Newcastle (“the Site”) involving the construction of student accommodation for the University of Newcastle.
John Holland engaged various contractors for building work to be carried out at the Site.
John Holland had a work, health and safety policy called “The Prevention and Management of Heat Stress”, part of which required workers at the Site to wear long pants and long-sleeved shirts (“the Two Longs Safety Policy”).
2. The applicant’s allegations
The applicant alleges that on 16 January 2014, the first respondent organised industrial action, encouraged or incited the workers to attend the Site the following day wearing shorts and short-sleeved shirts and to stop work if John Holland sought to enforce its Two Longs Safety Policy by preventing any worker from working on the Site in breach of the Two Longs Safety Policy.
The applicant further alleges that the conduct of the first respondent referred to above had the effect of directly or indirectly prejudicing John Holland in relation to its contract for building services.
By taking that action, the applicant alleges that the first respondent contravened s.340 of the FW Act by taking adverse action against John Holland because John Holland sought to exercise a workplace right including in a particular way, namely, the enforcement of the Two Longs Safety Policy.
The applicant also alleges that the first respondent contravened s.343 of the FW Act by taking action against John Holland with the intention, or including that intention, of coercing John Holland not to exercise its workplace right to enforce the Two Longs Safety Policy in a particular way, namely, to allow the workers to work in shorts and short sleeves.
The applicant alleges that pursuant to s.363 of the FW Act, the second respondent is also taken to have contravened s.340 and s.343 of the FW Act.
The contraventions alleged are contraventions of civil remedy provisions of the FW Act. Accordingly, it is common ground that they must be proved by the applicant to the requisite standard, that being the standard referred to by Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336 at 361 to 362:
“Fortunately … at common law no third standard of persuasion was definitely developed. Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding, are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters “reasonable satisfaction” should not be produced by inexact proofs, indefinite testimony, or indirect inferences. Everyone must feel that, when, for instance, the issue is on which of two dates an admitted occurrence took place, a satisfactory conclusion may be reached on materials of a kind that would not satisfy any sound and prudent judgment if the question was whether some act had been done involving grave moral delinquency.”
The respondents deny the allegations.
3. Relevant Legislation Provisions
Section 340 of the FW Act provides as follows:
“340 Protection
(1)A person must not take adverse action against another person:
(a) because the other person:
(i) has a workplace right; or
…
(iii) proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; or
(b) to prevent the exercise of a workplace right by the other person.
…
Note: This subsection is a civil remedy provision (see Part 4-1).” (Emphasis added)
Relevantly, s.341 of the FW Act defines a “workplace right” as follows:
“341 Meaning of workplace right
(1) A person has a workplace right if the person:
(a) is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body; or
…”
(Emphasis added)
A “workplace law” is defined in s.12 of the FW Act to include:
“Any other law of the Commonwealth, a State or a Territory that regulates the relationships between employers and employees (including by dealing with occupational health and safety matters).”
It is common ground that the Work, Health and Safety Act 2011 (Cth) (“the WHS Act”) is a workplace law.
Relevantly, “adverse action”, as defined in s.342 of the FW Act by item 7 in the table to s.342(1) provides that an industrial association, as the second respondent is, or an officer of such an association, as the first respondent is, takes adverse action against a person, allegedly John Holland, if it, he or she:
“(a) organises or takes industrial action against the person; or
…
(c) if the person is an independent contractor, takes action that has the effect, directly or indirectly, of prejudicing the independent contractor in relation to a contract for services; or
…”
(Emphasis added)
Relevantly, s.19(1)(a) and (b) of the FW Act define “industrial action” as the performance of work by an employee in a manner that is different from that in which it is customarily performed, or the adoption of a practice in relation to work by an employee, the result of which is a restriction or a limitation on, or a delay in, the performance of the work; or a ban, limitation or restriction on the performance of work by an employee.
Section 19(2)(a) and (c) of the FW Act provide that “industrial action” does not include action by an employee that is authorised or agreed to by the employer; and, action by employee if that action is based on a reasonable concern of the employee about an imminent risk to health or safety.
Relevantly, s.343(1) of the FW Act is as follows:
“343 Coercion
(1) A person must not organise or take, or threaten to organise or take, any action against another person with intent to coerce the other person, or a third person, to:
(a) exercise or not exercise, or propose to exercise or not exercise, a workplace right; or
(b) exercise, or propose to exercise, a workplace right in a particular way.”
Section 360 of the FW Act states that for the purposes of General Protections in Part 3-1 of the FW Act “a person takes action for a particular reason if the reasons for the action include that reason”.
Relevantly, s.361 of the FW Act is as follows:
“361 Reason for action to be presumed unless proved otherwise
(1) If:
(a) in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and
(b) taking that action for that reason or with that intent would constitute a contravention of this Part;
it is presumed that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.
…”
4. Did John Holland have a workplace right?
The respondents contended that John Holland did not have a workplace right within the meaning of s.341(1)(a) of the FW Act.
Relevantly, s.19 of the WHS Act provides as follows:
“19 Primary duty of care
(1) A person conducting a business or undertaking must ensure, so far as is reasonably practicable, the health and safety of:
(a) workers engaged, or caused to be engaged by the person, and
(b) workers whose activities in carrying out work are influenced or directed by the person,
while the workers are at work in the business or undertaking.
…”
The applicant submitted that the John Holland’s workplace right arose from its role, responsibility and duty pursuant to s.19 of the WHS Act.
The respondents submitted that the workplace right protected under s.341(1)(a) of the FW Act are beneficial entitlements, roles and responsibilities.
The respondents referred to the Explanatory Memorandum in relation to s.341(1)(a) of the FW Act in support of that submission where that Explanatory Memorandum stated that s.341(1)(a) of the FW Act is intended to provide protection for persons who perform a representative function in the workplace that is recognised under a workplace law. The applicant drew the court’s attention to clause 1631 of the Explanatory Memorandum that states that s.341 of the FW Act is intended to cover a broad range of benefits, roles and responsibilities.
In Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2015] FCAFC 25 (“BHP Coal”) at [177-8], the Full Court of the Federal Court of Australia specifically rejected an argument by the CFMEU that employers do not have workplace rights.
BHP Coal also drew a distinction between the conferring of a benefit and the imposition of a detriment.
Drawing on BHP Coal, the respondents submitted that the effect of s.19(1) of the WHS Act on John Holland was to create a legal obligation/duty (or detriment) to ensure, so far as is reasonably practicable, the health and safety of the workers engaged on the Site. The respondents submitted that s.19 of the WHS Act creates a civil offence and that an employer (such as John Holland), has no discretion about what it must do pursuant to that section.
The respondents also referred to s.28(c) and (d) of the WHS Act, which require a worker to comply with any reasonable instruction that is given by the person conducting the business or undertaking to allow the person to comply with the WHS Act; and to cooperate with any reasonable policy or procedure of the person conducting the business or undertaking relating to health or safety at the workplace that has been notified to workers.
The respondents submitted that the WHS Act refers to the obligations in ss.19 and 28 as a health and safety duty (see s.30 of the WHS Act) not as rights or benefits. The respondents submitted that the only benefit conferred by s.19 of the WHS Act is on the worker, just as the only benefit conferred by s.28 of the WHS Act is on the employer.
The respondents contended that, in the circumstances, John Holland did not have a workplace right and, accordingly, the alleged contraventions of s.340(1) and s.343 of the FW Act should be dismissed.
Whilst I accept that John Holland was duty-bound to take steps to ensure the safety and health of its workers, and that the Two Longs Safety Policy was such a step, I do not accept that the duty imposed only a detriment on John Holland. In my view, John Holland’s compliance with its duty under s.19 of the WHS Act, provided a benefit to John Holland by protecting it from potential civil litigation in the event of injury to a worker and from potential statutory prosecution.
Based on the evidence before me (and to which I will refer later), I accept that the Two Longs Safety Policy is a reasonable policy designed to address specific workplace hazards, including the risk of abrasions and exposure to the sun. Comcare, the national health and safety regulator, attended the Site on 17 January 2014, and did not find anything wrong with the Two Longs Safety Policy. The Comcare report acknowledged that it was reasonable for John Holland to require workers onsite to wear long-sleeved shirts and long pants to reduce the risk of workers’ exposure to ultraviolet light.
Moreover and in any event, John Holland had a role or a responsibility pursuant to s.19 of the WHS Act to ensure the health and safety of workers engaged or caused to be engaged by John Holland and whose activity in carrying out work were influenced or directed by John Holland.
In the circumstances, I am satisfied that John Holland had a workplace right, namely, its role and responsibility to enforce its reasonable policies introduced to workers in discharge of its duty pursuant to s.19(1) of the WHS Act, thereby enabling it to potentially avoid civil litigation or statutory prosecution.
Before considering whether John Holland exercised or proposed to exercise its workplace right and whether the first respondent organised industrial action, that being adverse action, I shall make findings based on the evidence before me.
5. The Applicant’s Witnesses
The applicant predominantly relies on the evidence of:
i.Mr Glen O’Connor, Project Manager of the Site.
ii.Mr James Brown, Safety Manager at John Holland.
iii.Mr Jeffrey Wall, Construction Manager at John Holland.
iv.Mr Trent Smith, the Senior Employment Relations Advisor for NSW/ACT at John Holland.
Each of the applicant’s witnesses was cross-examined. I found each of the applicant’s witnesses to be generally reliable. To the extent that there were some inconsistencies in their evidence, I find these to be minor and to reflect the genuineness of their evidence. Each had prepared a statement within days of the event or, at most, three months of the event.
5.1 Mr Glen O’Connor
The applicant’s main witness, the Site Project Manager, Glen O’Connor, recorded contemporaneously minutes of meetings that he had with various relevant participants. Mr O’Connor was cross-examined extensively as to matters not contained in a statement made by him on 21 January 2014 (being within five days of the critical events of 16 and 17 January 2014) and made for the purposes of an urgent application to the Fair Work Commission; and, that were contained in a later statement dated 23 April 2014, provided to the applicant for the purposes of its investigation.
Mr O’Connor was frank about various omissions and I find that his explanation as to the urgency of the preparation of his first statement to wholly explain the difference between that statement and the fulsomeness of the second statement. I am satisfied to the requisite standard of events and matters to which Mr O’Connor deposes and accept unhesitatingly his account of those events and matters, including his evidence of conversations he had and the content of what he otherwise heard the first respondent say. In relation to minor discrepancies in the applicant’s witnesses with the evidence of Mr O’Connor, I find that they reflect the genuineness of the witness’s best attempt to recall relevant events.
Mr Glen O’Connor made a statement on 21 January 2014 to which he annexed various notes made by him contemporaneously on the dates to which they refer, including the minutes of a meeting on 16 January 2014 at 10am, which included the first respondent and Mr Rigby and John Holland management, including Trent Smith and James Brown; a toolbox talk on Site with workers, including the first respondent at 12 pm on 16 January 2014; minutes of a meeting on Site on 17 January 2014 with Comcare, the John Holland Health and Safety Committee, the first respondent and Mr Rigby; a diary of events dated 20 January 2014; and minutes of a meeting dated 20 January 2014 which included Trent Smith, the first respondent, Mr Rigby and Mr Preston.
In his statement made on 21 January 2014, Mr O’Connor stated that at approximately 8:15am on Thursday, 16 January 2014, he met with the first respondent and Tom Rigby, together with Mr Smith. Mr O’Connor stated that the first respondent said to him that 81 out of 82 workers had voted to wear short sleeves and shorts; that they believed this was a safety issue and that they had agreed to start doing this on Friday morning. Mr O’Connor stated that the first respondent said if the workers were required to wear longs, the whole site should sit out of the job, that all the guys are rolled together, “if you touch one, you touch them all.”
Mr O’Connor then referred to a Health and Safety Committee meeting at 10:00am on 16 January 2014, with the first respondent, Mr Rigby, Mr Smith, Mr Wall and John Parsons, and other representatives of John Holland and workers at the Site. Mr O’Connor stated that during the course of the meeting, the first respondent said that the CFMEU had made it clear to the workers that if they wanted to wear short sleeves and shorts they should do so, although the union did not endorse football shorts.
Mr O’Connor stated that the first respondent then said that if John Holland prevented anyone in shorts from entering the Site on 17 January 2014, then all workers would stop work immediately, “If you touch one, you touch all.” Mr O’Connor stated that the first respondent reiterated that there are 82 union members on Site and 81 have voted in favour of short-sleeved shirts. The minutes of the meeting as recorded by Mr O’Connor on that day are entirely corroborative of that statement.
Mr O’Connor stated that following the Health and Safety Committee meeting, he arranged a toolbox talk with the workers on Site in relation to the heat stress issue. Trent Smith was also in attendance.
Mr O’Connor’s notes of that meeting include informing the workers that the John Holland Regional Safety Committee would review the best use of fabric material for long sleeved shirts and pants, and that other conditions would be immediately implemented to address the workers’ heat stress concerns. Mr O’Connor’s notes also noted that Mr Smith talked about the ramifications involved with going on strike, that it was not recommended, and at all costs the parties should try and work together, consult with each other and come up with a happy medium.
Mr O’Connor stated that on Friday, 17 January 2014, he attended a pre‑start meeting of the workers at approximately 7:00am and advised the workers to put on their longs and that if they are not working or wearing shorts, it would be considered industrial action.
Mr O’Connor then referred to a scaffolder who was working in short sleeves and shorts and told him to pack up, but that he could come back in longs if he wished. Mr O’Connor then observed a number of workers cease working and walk to the crib room area.
Mr O’Connor stated that at 8.30am he and Mr Smith held discussions with workers to advise them that refusing to work wearing John Holland mandated Personal Protective Equipment (“PPE”) may constitute industrial action and that they should return to work.
Mr O’Connor then referred to a Comcare meeting at 10:00am, following which the first respondent told Mr Smith and Mr O’Connor that it is not industrial action but is a safety matter. Mr O’Connor noted that Mr Smith responded that it was not a work, health and safety matter, particularly after the meeting with Comcare.
Mr O’Connor stated that at approximately 2:30pm he and Mr Smith returned to the crib area and noted that the workers who had previously been in the crib room had left the Site. Mr O’Connor stated that during that afternoon he wrote to the subcontractors of the Site to advise them of the industrial action that took place involving their employees.
Mr O’Connor stated that on Monday, 20 January 2014, he met with the first respondent and Mr Rigby and told them to provide appropriate paperwork as this is now not a safety issue. Again, Mr O’Connor had contemporaneously made file notes in respect of the events on that day.
On 23 April 2014, Mr O’Connor made a further statement which was largely repetitive of his earlier statement made 21 January 2014 but contained more detail.
In his statement made 23 April 2014, Mr O’Connor gave evidence that he overheard some of what the first respondent said to the workers at the meeting on 16 January 2014 at about 7.45am. Mr O’Connor’s statement made 23 April 2014 contains the detail of that evidence referred to in the previous paragraph and founds the particulars relied by the applicant for the adverse action alleged. Mr O’Connor’s evidence of what he heard the first respondent say at that meeting is as follows:
Others will tell you that you’re using long sleeves for UV protection but you should have the choice.
What are we going to do about it? Do we wear shorts or short sleeves? Who is wanting to have the choice of wanting shorts and short sleeves?
Okay guys it’s up to you. We’ve done it at Barangaroo and Tamworth. I’m suggesting that you come to work in shorts and short sleeves and “make a stand”
Who’s up to do that? We need a vote. Raise your hands. Right, when are we going to do it? Is it Friday morning or Monday morning?
Righto lads that’s 81 out of 82
Right it’s Friday.
Mr O’Connor also deposed that he did not hear any other person (such as a worker known as “Bear”) propose any vote, only the first respondent.
Mr O’Connor remained unshaken in cross‑examination on this evidence and the fact that he was nearby the meeting although not participating in it. I accept that Mr O’Connor heard what was happening. He had known the first respondent for some 10 years and was familiar with his voice. Mr Wall gave evidence that the voices were very loud coming from the crib room, particularly that of the first respondent.
While Mr O’Connor was asked in cross‑examination why he had not given this evidence in his earlier statement or in his minutes. As stated above, I accept Mr O’Connor’s explanation that his statement of 21 January 2014 was prepared urgently for the purposes of the Fair Work Commission and, further, that his minutes were not intended to be verbatim accounts of what occurred.
As stated above, I find his statement prepared on 23 April 2014 to be sufficiently close to events as to be reliable. In the circumstances, I accept Mr O’Connor’s evidence of what he heard the first respondent say to the workers at the meeting.
On 26 August 2016, Mr O’Connor affirmed an affidavit where he verified his earlier statements as true and correct, again in largely consistent terms with his earlier two statements.
5.2 Mr James Brown
Mr Brown was the Safety Manager on the Site at all relevant times. His duties included ensuring compliance by John Holland of its health and safety obligations under the WHS Act.
Mr Brown made a statement on 4 June 2014 at the request of the applicant for the purposes of their investigation. His affidavit was affirmed 26 August 2016 and, inter alia, verified the truth and accuracy of his statement.
Mr Brown stated that from 7 November 2013, it was a requirement that workers on the Site comply with John Holland’s Two Longs Safety Policy “The Prevention and Management of Heat Stress” which included site workers wearing long sleeves and long pants. Mr Brown said that he went through with workers during the inductions the site induction workbook and the requirement to wear long sleeves and long pants. Further, he stated that the requirement to comply with John Holland’s Two Longs Safety Policy was included in contracts that John Holland had with its subcontractors.
Mr Brown said that on 14 January 2014 he attended a Health and Safety Committee meeting at the Site with, inter alia, Mr O’Connor, the first respondent and Mick Preston, the safety officer for the CFMEU. During that meeting, the first respondent said to him that he wanted John Holland to use the CFMEU’s heat management policy and that workers should have the option of working short sleeve shirts as they did at other sites at Barangaroo and the Tamworth Hospital. Mr Brown’s minutes of the meeting largely support his evidence.
Mr Brown stated that on 16 January 2014 he was telephoned by Mr Glen O’Connor and asked to return to the site office to come to a meeting. While Mr Brown stated that this meeting was at 8.30am, I find that, in accordance with Mr O’Connor’s evidence supported by his minutes, the meeting was at 10.00am.
Mr Brown stated that the meeting included Mr O’Connor, Trent Smith, the first respondent and Mr Tom Rigby from the CFMEU. Whilst he did not recall the exact words used by the first respondent during the meeting, he did recall the first respondent using words to the effect that the workers had taken a vote that morning, 81 out of 82 or 82 out of 83, to have the choice to wear short sleeves and shorts from tomorrow. Mr Brown stated that he said that could not be done because the Two Longs Safety Policy could not change that quickly and that if they were not wearing the proper PPE, then they would need to leave the Site. Mr Brown said that the first respondent answered, “If you ask one guy to leave, then we all go. Take one out. We’re all out.”
Mr Brown stated that after that meeting, he had a discussion with Mr Glen O’Connor, Trent Smith, Jeff Wall and Martin Tunstead. He said he did not recall the details of the discussion but recalled that everyone agreed that the project was facing a possible work stoppage. He said everyone also agreed that Mr O’Connor would conduct a site-wide toolbox meeting at midday in order to explain the reason for the Two Longs Safety Policy, and to inform workers that there might be personal ramifications if they deliberately chose to avoid the Two Longs Safety Policy.
Mr Brown stated that on Friday, 17 January 2014, he arrived at work at around 6.30am and observed that many workers were wearing shorts and short sleeves. He was told that a worker had been asked to leave the Site because he was wearing short sleeves, and as a result, every other worker followed him off-site.
Mr Brown stated that at about 10.00am he met with 2 Comcare inspectors. Mr Brown said that Comcare inspector Nicole Boyce said words to the effect that Comcare could not find anything wrong with the Two Longs Safety Policy and that Comcare was not in a position to change it.
Mr Brown said that later that afternoon, Martin Tunstead provided him with a document headed “Inspector Report” from Comcare which made the following findings:
i.The Two Longs Safety Policy aids in reducing the risk of cuts, abrasions, insect or animal bites and other risk to healthy safety.
ii.John Holland’s prevention and management of stress procedure identifies a number of control measures to mitigate the risks associated with heat stress.
iii.It is reasonable for John Holland to require workers onsite to wear long-sleeved shirts and longs pants to reduce the risk of workers’ exposure to ultraviolet light.
Mr Brown said that at 3.40pm on Friday, 17 January 2014, the John Holland Health Safety Committee representative, John Parsons, gave him a Provisional Improvement Notice (“PIN”) which was issued in relation to an alleged contravention under s.19 and reg.40 of the WHS Act relating to John Holland’s primary duty of care. The PIN cited John Holland’s failure to allow workers onsite to wear shorts and short sleeves while working onsite. The PIN provided for the duty holder, in this case, John Holland, to remedy the alleged contravention by 25 January 2014. If the PIN was to be disputed, then the WHS Act provides for the matter to be investigated by a Comcare or WorkCover inspector. The PIN was issued in the name of Glen O’Connor.
Mr Brown said that on 18 January 2014, he received an email from Mr O’Connor to the effect that the PIN was going to be disputed. Mr Brown stated that on Tuesday, 21 January 2014, he had a meeting on Site to discuss the disputed PIN with, inter alia, John Parsons and two Comcare inspectors. Sometime around mid-March 2014, Mr Brown was told that the PIN had been withdrawn by Mr Parsons.
Mr Brown said that on 22 January2014, he was present in the crib room area with, among others the first respondent and Mr O’Connor and about 50 workers. He recalled Mr O’Connor saying to the workers that they would still need to wear longs on site. Mr Brown said that the workers then returned to work wearing longs and the first respondent left the Site.
Mr Brown stated that in February 2014 he had revised John Holland’s Two Longs Safety Policy but had retained the need to wear longs.
Mr Brown remained unshaken in cross examination and presented as a forthright and co-operative witness. I accept the evidence of Mr Brown as disclosed in his statement made on 4 June 2014 and prefer his evidence to the evidence of the respondents’ witnesses where their evidence departs from that of Mr Brown. Mr Brown’s affidavit sworn 2 years later is consistent with his statement made on 4 June 2014.
5.3 Mr Jeffrey Wall
Mr Jeffrey Wall was employed in January 2014 by John Holland as a construction manager. Mr Wall made a statement on 27 March 2014.
Mr Wall stated that he arrived on Site at around 6.30am on Thursday, 16 January 2014 and at around 7am, heard loud voices coming from the crib room area. Mr Wall stated that after he had completed his site walk, he had a conversation with Glen O’Connor, who told him that the workforce had taken a vote, 81 out of 82, to wear short sleeves and shorts starting Friday, 17 January 2014.
Mr Wall stated that at 10am, the Health and Safety Committee had a meeting with the first respondent and Tom Rigby which he also attended. Also attending were John Parsons, John Holland’s Health and Safety Representative, Trent Smith, Employment Relations Adviser, and Glen O’Connor. Mr Wall said that the John Holland representative jointly advised the CFMEU officials of the requirement for workers onsite to wear long sleeves and long trousers and explained that John Holland’s Two Longs Safety Policy was national and could not be changed locally.
Mr Wall said reference was also made to the Cancer Council recommendations. Mr Wall stated that during this meeting, he recalled the first respondent stating words to the effect that if you stop the workers from wearing shorts, the whole site will stop, “Touch one, touch all.”
As a result of that meeting, Glen O’Connor, Trent Smith and Mr Wall decided to hold a toolbox meeting to reinforce the Two Longs Safety Policy and that Glen O’Connor would speak at the meeting.
Mr Wall stated that he attended the toolbox meeting at midday, where Mr O’Connor reiterated the need for all workers, while working on the Site, to wear longs. Mr Wall gave evidence that Mr O’Conner further stated that although John Holland was happy to work with the Health and Safety Committee to enhance or modify the heat stress management plan, everyone was expected to work in longs the following day. Mr Wall stated that towards the end of the meeting, the first respondent interrupted Mr O’Connor, using words to the effect that the workers had spoken, they would be wearing shorts tomorrow. Mr Wall stated that he specifically heard the first respondent use the words, “if you touch one, you touch all.”
Mr Wall stated that on Friday, 17 January 2014, he had a discussion with Mr O’Connor, where they agreed that any worker not found wearing the correct PPE would be dealt with as any normal PPE infringement, which was that the worker would be asked to wear the correct PPE in the first instance, and if they refused they would be asked to leave the Site.
Mr Wall further stated that around 7.45am, he had another discussion with Mr O’Connor, who told him that he had identified a scaffolder with incorrect PPE and asked him to wear longs, and that the scaffolder then stopped working and walked towards the crib room area. Mr Wall stated that not long after that conversation, the rest of the workers followed him to the crib room area.
Mr Wall’s affidavit, sworn 2 September 2016, verified the truth an accuracy of his statement. I accept Mr Wall’s evidence as reflected in his statement and found him to be a frank and cooperative witness. His evidence was unshaken in cross examination.
5.4 Mr Trent Smith
Mr Trent Smith was the Senior Employment Relations Adviser at John Holland, and made a statement on 12 March 2014. In that statement, he said that he had provided a statement to John Holland on 21 January 2014 to support its application to the Fair Work Commission to end a work stoppage by workers on Site.
The statement made 21 January 2014 included a summary of what occurred on 16 January 2014. He stated that at approximately 7am on 16 January 2014, organisers of the CFMEU, the first respondent, and Mr Tom Rigby entered the Site to conduct consultation with workers, and following that meeting, met with Mr Smith and Mr O’Connor.
Mr Smith said that the first respondent and Mr Rigby told them that a motion had been passed by workers at the meeting that they intended to wear short-sleeved shirts and shorts rather than long-sleeved shirts and long pants when working on the Site, commencing 17 January 2014. Mr Smith knew that the motion was contrary to the PPE and heat stress policies of John Holland, including its Two Longs Safety Policy, which were applicable to all workers on the project. Mr Smith said that he and Mr O’Connor and Mr Parsons (the elected health and safety representative for the project), agreed it was necessary to conduct an immediate Health and Safety Committee meeting with members of the committee to discuss the issue.
Mr Smith attended that Health and Safety Committee meeting at 10am with the representatives from the CFMEU (the first respondent and Mr Rigby). Mr Smith said that John Holland advised that it was open to further consultation onsite about specific heat stress procedures but was unwilling to alter the standard PPE as it provided protection from a range of risks such as skin cancer and cuts and abrasions.
Mr Smith said that the CFMEU representatives then stated that the workers had moved a motion that they would wear short sleeves and shorts on 17 January 2014 if they wished and that if John Holland prevented anyone in shorts from entering the Site, then all workers would stop work immediately. Mr Smith stated that the first respondent said “Touch one, touch all”.
Thereafter, Mr Smith said that he and Mr O’Connor proceeded to conduct toolbox talks with the workers about the issue.
Mr Smith stated that at approximately 8:00am on 17 January 2014, he and Mr O’Connor had a discussion with the first respondent and Mr Rigby. He said that Mr O’Connor said words to the effect that the expectation is that the workers would wear appropriate PPE and return to work, and that if they did not, it would be considered industrial action. Mr Smith stated that the first respondent responded they are in shorts and ready to work “We got it through at Lend Lease last year and have held off rolling it out with John Holland until the New Year.”
At approximately 8.30am, he and Mr O’Connor held discussions with the workers to advise them that refusing to work wearing the company-mandated PPE may constitute industrial action and that they should return to work.
John Holland then arranged for a meeting with a representative of Comcare to occur at 10am, with the outcome that the Comcare representative was satisfied that John Holland’s policies were appropriate. Following that meeting, Mr Smith said that he advised the first respondent that workers should return to work, as John Holland is now of the firm view that such action is industrial action.
Mr Smith then stated that he, the first respondent, and Mr O’Connor had a discussion in which the first respondent said that it was not industrial action but a safety matter. Mr Smith stated that he was told that after the meeting with Comcare, it was not a work, health and safety matter. He said that the first respondent, inter alia, said that the workers had voted and they would not change their minds.
Mr Smith said that at around 12.30pm, he, Mr O’Connor and Mr Wall addressed some 35 workers that were left on Site. Mr Smith stated that he said if the workers were wearing appropriate PPE they should return to work immediately and that if they refused to return to work, then they would be considered to be taking unprotected industrial action.
Mr Smith stated that on 20 January 2014, he and Mr O’Connor held a further meeting with employees and subcontractors, the first respondent and Mr Rigby, during which Mr O’Connor stated that he considered the workers were engaging in industrial action. Mr Smith recalled that Mr Rigby stated it was not industrial action rather it was a health and safety matter. Mr Smith said that he responded to Mr Rigby that in the company’s opinion, it is industrial action.
Mr Smith’s subsequent statement on 12 March 2014 and his affidavit sworn 26 August 2016 are consistent with his statement made on 21 January 2014 and I accept his evidence as reliable and prefer Mr Smith’s evidence where it departs from that of the Respondents’ witnesses.
6. The Respondents’ witnesses
The respondents’ witnesses were as follows:
i.Mr Pomare Auimatagi.
ii.Mr Tom Rigby.
iii.Mr Michael Preston.
Each of the respondents’ witnesses was cross-examined. Each had prepared an affidavit in late December 2016. None had made any contemporaneous note of events at or around the time they occurred. The affidavit evidence of each in relation to critical conversations was identical. Each of Mr Rigby and Mr Preston doggedly adhered to the correctness of the evidence in their affidavits, although were unable to explain the identical nature of their recollections. Each of the first respondent and Mr Rigby acknowledged that notes made at the time were more likely to be accurate than their recollections. Mr Preston declined to make such a concession.
None of the respondents’ witnesses had recent recollections of the relevant events upon which to draw in the preparation of their affidavits. To the extent that their affidavits were identical in so many respects only further undermines the reliability of their evidence. I accept the evidence of the applicant’s witnesses and prefer that evidence to the evidence of the respondents where the respondents’ witnesses depart from the evidence of the applicant’s witnesses.
6.1 Mr Pomare Auimatagi
Whilst I found the first respondent to be cooperative in cross-examination, I have little confidence in the accuracy of his recollections overall and no confidence in his accuracy of recollection where those recollections depart from those of the applicant’s witnesses. The first respondent agreed in cross-examination that he had relied largely on his lawyers in the preparation of his affidavit. Further, it was plain in cross examination that words used in his affidavit were not necessarily words with which he was familiar. The first respondent conceded that earlier recollections supported by contemporaneous notes were likely to be more accurate than his own recollections made almost 3 years later.
The first respondent agreed in cross-examination that he had put two votes to the workers on 16 January 2014. The first vote was carried 81 to 1 in relation to endorsement of the CFMEU’s heat policy. The second vote, proposed by a worker known as “Bear” which was carried 81 to 1, was to approve the workers turning up in shorts if they chose to do so. The first respondent acknowledged that the employees turning up to work in shorts would contravene the Two Longs Safety Policy, and that he knew Bear’s proposal was different to John Holland’s Two Longs Safety Policy.
The first respondent also acknowledged that he knew that John Holland’s Two Longs Safety Policy had been in place since 2013 and had been enforced. However, the first respondent responded that it was managed in a manner that was upsetting. The first respondent agreed that the policy had applied until the first respondent had arrived on Site and asked for a vote different to John Holland’s Two Longs Safety Policy.
The first respondent was shown the minutes of the meeting of 16 January 2014 prepared by Mr O’Connor. He agreed that John Holland had made it clear that they were sticking to the Two Longs Safety Policy. He also agreed that the phrase “touch one, touch all” is an expression of solidarity. The first respondent also agreed that “one out, all out” means a strike.
The first respondent also acknowledged that he was aware that there was a dispute settlement mechanism in all of the enterprise agreements covering the workers on the Site. However, the first respondent said that he would not agree that the workers’ discontent with the Two Longs Safety Policy could have been agitated through this mechanism. He also agreed that in the event of a dispute, one would file for such a dispute and then steps would be taken, such as arbitration, in relation to the breach of an enterprise bargaining agreement. It was put to him that the issue of clothing was not so urgent that those steps could not be taken, to which the first respondent responded that yes, it was.
It was then put to the first respondent in cross examination that he was seeking to force change without negotiation, to which he answered, no. He did, in the course of his cross-examination, acknowledge that he knew industrial action was prohibited.
Otherwise the first respondent denied the evidence of Mr O’Connor, Mr Smith, Mr Wall and Mr Brown where their evidence purported to be damning of his conduct.
6.2 Mr Tom Rigby
Mr Tom Rigby made his statement in July 2016 and in cross-examination, agreed that he did not have any notes from which to prepare that affidavit. He agreed that “possibly” his recollection may have been jaded over that time. He acknowledged that he is a busy union representative and responsible for a number of events. He said that he read his affidavit ten times and that he specifically recalled the conversations that he put in quotes. He put down to typing errors those parts of his evidence that matched identically to that of the first respondent.
Mr Rigby remembered only one vote on 16 January 2014, being the vote carried 81 to 1 to endorse the CFMEU heat policy and the “union’s actions” and to take the endorsement back to management for further negotiation. Mr Rigby maintained his denial that there were two votes or that “Bear” had a vote put to the meeting. Eventually, Mr Rigby agreed that the first respondent had asked the meeting to vote on “Bear’s” resolution to allow the workers to turn up in shorts if they choose. Mr Rigby agreed that he knew that the shorts were contrary to the Two Longs Safety Policy but denied that he had discussed that policy with the first respondent.
Mr Rigby then said that he was not aware of John Holland’s Two Longs Safety Policy until after the vote. He then said that he did not know the John Holland Two Longs Safety Policy. However, when asked why he would have said to the workers, before the “Bear” vote, that they would be in breach of the Two Longs Safety Policy, Mr Rigby answered that he probably knew they had a policy. He agreed that he did say, “You will be in breach of the John Holland policy.” However, he continued to maintain that he knew nothing about that policy.
Mr Rigby denied that “they will all go out” means that the workers would go on strike. When put to him somewhat rhetorically that, “Does it mean to go out to dinner?” he answered, “Possibly, or to the crib shed.” When asked what does “touch one, touch all” mean, he said, “lots of things.” When it was put to him that it was a statement of solidarity, he responded, “Possibly”. Again, he said that, “‘You touch one, you touch all’ also means lots of things, such as if you hurt a person and you hurt their feelings, then you hurt the feelings of all group”.
Mr Rigby agreed in cross-examination that he could not remember whether the first respondent said those words, “touch one, touch all,” yet in his affidavit, he denied that the first respondent had said those words.
Mr Rigby also gave evidence that John Parsons was the Health and Safety Officer with power to dictate the cessation of work in certain circumstances. Mr Rigby agreed that Mr Parsons was a very powerful person and a member of the second respondent with specific work, health and safety responsibilities. Mr Rigby was also asked in cross-examination if he knew any reason why not one member of the rank-and-file workers was being called to give evidence. He responded that he did not know.
Mr Rigby was not an impressive witness and demonstrated through his own inconsistent evidence that he was not a reliable witness when it came to the accuracy of any of his recollections, particularly where they depart from those of the applicant’s witnesses. I place little or no weight on his denials of evidence that may be against the respondents’ interests, particularly insofar as they deny details of conversations deposed to by the applicant’s witnesses.
The identical nature of his own evidence of recollections with those of the first respondent of conversations he was a party or privy to, only further undermines his evidence. He conceded only that such may be due to typographical errors, although, as stated above, he said that he had read his affidavit at least 10 times. He did not present as an uneducated or inexperienced union employee. He agreed that he had been involved in litigation before as a witness and held responsibilities for many sites.
6.3 Mr Michael Preston
Mr Preston is no longer employed by the second respondent.
Various inaccuracies in his affidavit were put to Mr Preston in cross-examination about incorrect dates in his affidavit and other inaccuracies that he put down to oversights. He said that he could not comment about the similarities of his quoted evidence with that of the first respondent and rejected that they were not his words. Mr Preston confirmed that he was on Site on 20 January 2014, but took no notes upon which he relied in the preparation of his affidavit. He confirmed that he was relying only on his recollection almost three years later.
When it was put to him that his recollection may not be so good, Mr Preston disagreed and said that it was good, although he conceded that a minute of the meeting made on 20 January 2014 may be more accurate. However, when put to him that he was not at the meeting on 20 January 2014 according to the minutes of the meeting, he insisted that he was. In his affidavit evidence, Mr Preston said that he had been on Site on 14 January 2014. Mr Preston was then shown two different sets of minutes that showed that he was there on 20 January 2014, both of which he rejected.
Mr Preston agreed that it is a primary duty of John Holland as a person conducting a business or undertaking (“PCBU”) to ensure the safety of workers and that those duties are not transferrable. He also agreed that the duty related to workers generally and not just the employees of John Holland. He also agreed that the Two Longs Safety Policy was in place on 14 January 2014 nationwide.
In re-examination, Mr Preston was taken to Mr Brown’s statement made on 4 June 2014 in which he stated that Mr Preston was on Site on 14 January 2014. Mr Brown’s statement was supported by a minute of a meeting dated 14 January 2014 of a Health and Safety Committee meeting. Those minutes show the tabling by the CFMEU representatives, including the first respondent, of the CFMEU Heat Management brochure containing the policy how the CFMEU would like heat to be managed. The CFMEU was represented by the first respondent and Mick Preston on that day. Notes of that meeting also included the statement that the CFMEU was not encouraging any stop-work or industrial action.
I found Mr Preston to be an entirely unreliable witness who refused to make obvious concessions. I do not accept that his recollection of any of the relevant events or conversations is accurate or reliable where it is either controversial or inconsistent with the evidence of the applicant’s witnesses.
7. Mr Parsons
To the extent that both the applicant and the respondents submitted that the other should have called Mr Parsons, I accept the evidence of Mr Wall that Mr Parsons would have had a foot in both camps. In the circumstances, I draw no inference against either party by reason of a failure to call Mr Parsons.
8. Findings of Fact
The following findings are not based on inexact proofs, indefinite testimonies or indirect inferences. Each of the facts found has been found having regard to the seriousness of the allegations and the gravity of the consequences flowing from the findings (see Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-362 per Dixon J; Re Day [2017] HCA 2 at [15] and [18] per Gordon J).
On 9 January 2014, the first respondent met with Mr O’Connor to discuss how best manage heat stress of workers while on the Site. The first respondent told Mr O’Connor that workers on the Site wanted to wear shorts and short sleeves. The first respondent gave Mr O’Connor a copy of the CFMEU brochure on heat management which stipulates, inter alia, that workers should wear “light coloured, long sleeved shirts and long trousers or shorts that go to the knee”.
Subsequently, Mr O’Connor arranged for John Holland’s Site Safety Manager, Mr Brown, to undertake a comparison of John Holland’s Two Longs Safety Policy and that of the CFMEU brochure. Both documents stipulated the need to wear long sleeves and long trousers.
All workers were aware of John Holland’s Two Longs Safety Policy, which formed part of the Site induction. Copies of the Two Longs Safety Policy were issued to all subcontractors.
On 14 January 2014, the first respondent attended a Health and Safety Committee meeting as a guest of John Holland for the purpose of discussing heat management on Site. During that meeting, the first respondent said that the workers should have the choice of wearing shorts or longs and that those changes had been implemented at Barangaroo and Tamworth with Lend Lease. The first respondent said that it was his plan to change all construction projects throughout the region.
On 16 January 2014 at 7:00am, the first respondent held discussion with workers. A CFMEU official, Mr Tom Rigby, was also present.
The first respondent met with the workers at the crib sheds during which the first respondent used words to the effect:
Others will tell you that you’re using long sleeves for UV protection but you should have the choice.
What are we going to do about it? Do we wear shorts or short sleeves? Who is wanting to have the choice of wanting shorts and short sleeves?
Okay guys it’s up to you. We’ve done it at Barangaroo and Tamworth. I’m suggesting that you come to work in shorts and short sleeves and “make a stand”
Who’s up to do that? We need a vote. Raise your hands. Right, when are we going to do it? Is it Friday morning or Monday morning?
Righto lads that’s 81 out of 82
Right its Friday.
That meeting finished at around 8:00am and the first respondent then met with Mr O’Connor and John Holland’s Senior Employee Relations Advisor, Mr Trent Smith, to discuss the outcome of the meeting. The first respondent said that the workers have voted to wear short sleeved shirts and shorts the following day.
The following exchange then took place between the first respondent and Mr O’Connor:
First respondent: the plan is for the guys to wear shorts and short sleeves tomorrow.
Mr O’Connor: that is not our protocol.
First respondent: it’s a safety issue.
Mr O’Connor: they are not allowed to wear shorts and short sleeves.
First respondent: we are not saying they are going to wear footy shorts.
Mr O’Connor: they are not going to be allowed to work on site.
First respondent: if any worker is removed from site, then the whole site will stop work and return to crib rooms.
Mr O’Connor then convened a meeting with the Health and Safety Committee and invited the first respondent to attend.
The health and safety meeting took place at around 10:00am on 16 January 2014. During the meeting the first respondent used words to the effect:
The union has made clear to the workers that if they want to wear short sleeved shirts and shorts then they should do so…The union does not endorse footy shorts…If John Holland prevents anyone in shorts from entering the site then all workers will stop working immediately…If you touch one, you touch all. There are 82 workers on site and 81 have voted in favour of short sleeved shirts.
Mr O’Connor then arranged a toolbox meeting on Site to address the entire workforce of around 90 workers. Mr O’Connor reminded the workers of the mandatory nature of the Two Longs Safety Policy and explained the rationale for the policy, including the prevention of melanoma and other skin cancers. Mr O’Connor said John Holland would undertake a review of the fabric of the clothing wore on Site and obtain a specialist thermometer to measure temperature precisely in order to determine the level of heat stress of workers.
During that meeting, the first respondent interjected and called out using the words “Touch one. Touch all.”
Both Mr Smith and Mr Wall gave evidence of the first respondent’s threat.
On 17 January 2014 before the commencement of work, Mr O’Connor reminded subcontractors of the Two Longs Safety Policy and what clothing was required.
Many workers appeared on Site wearing short sleeves and shorts.
Around 7:00am, Mr O’Connor approached a scaffolder who was wearing short sleeves and said that if he had some longs in the car, he should put them on and come back to work. Mr O’Connor said that the scaffolder responded that he understood.
Mr O’Connor then observed 5 to 6 other scaffolders who were nearby during this time and also wearing short sleeves made telephone calls on their mobile phones. Mr O’Connor stated that about 3 minutes later, approximately 90 workers walked off site towards the crib room.
At 10:00am on 17 January 2014 two Comcare inspectors attended the Site in the presence of senior John Holland managers, health and safety representative, CFMEU officials, Mr Rigby and the first respondent.
A Comcare inspector stated the wearing of short sleeves and shorts introduced additional risks to health and was against the advice outlined in regulatory guidance material contained in her report.
The inspector’s report dated 17 January 2014 stated that the Two Longs Safety Policy aided in reducing the risks of cuts, abrasions, insect or animal bites and other risks to health and safety. The inspector stated that, having reviewed John Holland’s prevention and management of heat procedure, including its Two Longs Safety Policy, those documents identified a number of control measures to mitigate the risks associated with heat stress.
The inspector concluded that it was reasonable for John Holland to require workers on Site to wear long sleeve shirts and long pants to reduce the risk of workers’ exposure to ultraviolet light.
Despite the findings of Comcare being communicated to the workforce, many workers left the Site shortly thereafter and by mid-afternoon, all workers had left the Site except workers employed directly by John Holland.
On Monday 20 January 2014, the first respondent attended the Site with other CFMEU officials.
The CFMEU officials then spoke with the workers at the crib sheds and encouraged the workers in their campaign to wear short shorts.
Later that day, John Holland lodged an application at the FWC under s.418 to stop unprotected industrial action. A hearing was scheduled the following day at 4:00pm, being 21 January 2014.
Around 7:15am on 21 January 2014, CFMEU officials, including first respondent again entered the Site to speak with the workers.
By close of business on Tuesday 21 January 2014, all workers except for those employed by one subcontractor had returned to work.
9. Was John Holland asserting its workplace right?
On the evidence before me, I find that John Holland had a Two Longs Safety Policy, of which the respondents were aware.
On 16 January 2014:
i)The first respondent entered the Site with the purpose of seeking to have John Holland change its Two Longs Safety Policy going forward.
ii)The first respondent planned to have all construction projects throughout the region provide a choice to workers of wearing “shorts” or “longs”.
iii)John Holland made clear to the first respondent that for the time being it was maintaining its Two Longs Safety Policy.
iv)The John Holland Two Longs Safety Policy was a written document of which the respondents had a copy.
v)All subcontractors and workers were directed and inducted in John Holland’s Two Longs Safety Policy.
vi)John Holland made clear to the first respondent and the workers that they were required to comply with the Two Longs Safety Policy on 17, 20 and 21 January 2014, despite the threat that all workers would walk off the job if the Two Longs Safety Policy was enforced.
vii)The respondents knew that under s.28 of the WHS Act the workers were required to comply with any reasonable instruction and cooperate with any reasonable policy.
viii)The respondents knew that John Holland had a duty of care in relation to the health and safety of its workers.
ix)The first respondent knew at all relevant times that any discussion to change to shorts and short sleeves was contrary to John Holland’s Two Longs Safety Policy.
On 17 January 2014:
i)A large number of workers appeared on Site wearing short sleeves and shorts.
ii)John Holland’s Site Project Manager, Mr O’Connor, approached a scaffolder and told him that if he had longs in the car, he should put them on and come back to work.
iii)Thereafter approximately 90 workers walked off Site towards the crib room area.
iv)Comcare attended the Site and confirmed and reported that John Holland’s Two Longs Safety Policy was appropriate to reduce the workers’ exposure to ultraviolet light.
v)The first respondent was aware of Comcare's report to that effect.
vi)Work stoppage occurred on 17, 20 and 21 January 2014.
I accept the applicant’s submission that the fact that the first respondent sought to argue against the Two Longs Safety Policy, and have it changed, itself demonstrates that John Holland was exercising or proposing to exercise its workplace right to enforce its policy..
I also accept the applicant’s submission that but for John Holland exercising and proposing to exercise its workplace right to enforce the Two Longs Safety Policy, the dispute between John Holland, the respondents and the workers would not have taken place on 16 January 2014 and following.
By telling the workers at all relevant times that they were required to comply with the Two Longs Safety Policy, John Holland was asserting its workplace right.
10. Did the respondents engage in adverse action?
Section 342(1) Item 7(a) provides relevantly that adverse action is taken if an officer of an industrial association (which the first respondent was) organises or takes industrial action against a person, in this case John Holland.
Section 342(1) Item 7(c) provides relevantly that adverse action is taken if an officer of an industrial association (which the first respondent was) takes action that has the effect, directly or indirectly, of prejudicing an independent contractor (which John Holland was) in relation to a contract for services (in this case John Holland’s building contract at the Site).
The action by the first respondent alleged to have that effect is set out below.
At about 7.45am on 16 January 2014, the first respondent said to the workers words to the following effect:
Others will tell you that you’re using long sleeves for UV protection but you should have the choice.
What are we going to do about it? Do we wear shorts or short sleeves? Who is wanting to have the choice of wanting shorts and short sleeves?
Okay guys it’s up to you. We’ve done it at Barangaroo and Tamworth. I’m suggesting that you come to work in shorts and short sleeves and “make a stand”
Who’s up to do that? We need a vote. Raise your hands. Right, when are we going to do it? Is it Friday morning or Monday morning?
Righto lads that’s 81 out of 82
Right its Friday.
After that meeting the first respondent and Mr O’Connor, the Site Project Manager, had a discussion using words to the following effect:
First respondent: the plan is for the guys to wear shorts and short sleeves tomorrow.
Mr O’Connor: that is not our protocol.
First respondent: it’s a safety issue.
Mr O’Connor: they are not allowed to wear shorts and short sleeves.
First respondent: we are not saying they are going to wear footy shorts.
Mr O’Connor: they are not going to be allowed to work on site.
First respondent: if any worker is removed from site, then the whole site will stop work and return to crib rooms.
At around 10:00am on 16 January 2014, Mr O’Connor convened a meeting of the Health and Safety Committee and invited the first respondent to the meeting. During the course of the meeting the first respondent said words to the following effect:
If John Holland prevents anyone in shorts from entering the site then all workers will stop work immediately…If you touch one, you touch all.
At about 12:00pm on 16 January 2014, Mr O’Connor told the workers at a toolbox meeting on Site that they were required to wear long pants and long sleeves for health and safety reasons. The first respondent interjected at that meeting and called out words to the effect, “Touch one. Touch all”. I accept that these words were used by the first respondent on at least two occasions, first to the workers at the toolbox meeting room, and subsequently to the Health and Safety Committee meeting. I also find that the words were emotive and were words of encouragement and incitement to the workers to stand together and stop work if John Holland tried to enforce the Two Longs Safety Policy against any worker the following day who came to work in shorts and short sleeves and was asked by John Holland to change to longs or leave the Site.
On 17 January 2014 before work was to commence, Mr O’Connor reminded the subcontractors of the Two Longs Safety Policy.
Mr O’Connor then observed many workers wearing short sleeves and shorts. At around 7:00am, Mr O’Connor told one scaffolder if he had some longs in the car he should put them on and come back to work. Mr O’Connor noticed that within minutes, approximately 90 workers walked off site toward the crib room area. Thereafter, work ceased on the Site. On 20 and 21 January 2014 a number of workers attended the Site but did not work for some or all of the day.
10.1 Item 7(a)
As stated above in the Relevant Legislation section of these Reasons, s.19(1)(a) and (b) of the FW Act define industrial action as including relevantly, the performance of work by an employee in a manner different from that in which it is customarily performed; or a ban, limitation or restriction on the performance of work by the employees.
Section 19(2) of the FW Act provides relevantly that industrial action does not include action based on a reasonable concern about an imminent risk to health or safety. The concept of “imminence” has been held to describe the risk to employees’ health or safety and involves the consideration of the probability of risk (see ABCC v CFMEU [2009] FCA 1092 at [114] per Gilmour J).
I am satisfied that the action of the workers was not based on a reasonable concern about an imminent risk to health or safety. Comcare had attended the Site on 17 January 2014 and reported that John Holland’s Two Longs Safety Policy was appropriate.
The evidence in relation to temperatures at that time indicate that over 17, 20 and 21 January 2014 they were not excessive and were around the mid 20’s. The Two Longs Safety Policy provided protection from abrasions and sun exposure. Further, and in any event, John Holland had a heat management plan to manage safety in heat, including structured breaks, rehydration opportunities and provision of ice and water.
Further, I find that an “employee” as referred to in s.19 of the FW Act includes the employees of the subcontractors engaged by John Holland on the Site.
Pursuant to s.335 of the FW Act, the meaning of “employee” in Part 3-1 of the FW Act is to have its ordinary meaning.
The workers on Site included workers employed directly by John Holland. However, the majority were the employees of the subcontractors engaged by John Holland and who worked on the Site only in accordance with John Holland’s directions, instructions, supervision and work related policies such as John Holland’s Two Longs Safety Policy.
In the circumstances, the workers were working on the Site as “employees” and as such the definition of industrial action in s.19 of the FW Act was satisfied. They are the employees organised by the first respondent to take the industrial action of collectively stopping work if John Holland sought to enforce its workplace right as reflected in its Two Longs Safety Policy. The workers were withdrawing their labour with the industrial objective of changing clothing conditions on the Site and with which John Holland disagreed (see Director of the Fair Work Building Industry Inspectorate v McCullough [2016] FCA 1291 at [131] per Barker J).
By collectively stopping work on 17 January 2014, when John Holland sought to enforce its Two Longs Safety Policy against a worker, the workers engaged in industrial action. The workers sought to perform their work clothed differently than in accordance with the clothing customarily required by John Holland’s Two Longs Safety Policy.
By reasons of the matters referred to above at paragraphs 164-169, the first respondent organised the industrial action taken by the workers on 17 January 2014.
I also find that the industrial action taken by the workers was before any involvement of the supervisors.
10.2 Item7(c)
The respondents contend that there is no evidence before the Court that John Holland suffered a real or substantial prejudice. The applicant alleged that the stoppages of work prejudiced John Holland’s ability to provide building services to the Site.
The respondents submit that in the absence of any evidence provided by the applicant’s witnesses of any prejudice suffered by John Holland, such an allegation is not made out.
However, to my mind, it goes without saying that if the vast majority of an 82 man workforce leave a site and do not work for a day (let alone 3 days), the prejudice suffered by John Holland is more than “merely possible or hypothetical”. I am satisfied that such prejudice is real and substantial (see Australian Building and Construction Commissioner v Hall [2017] FCA 274 at [151]-[153]).
In the circumstances, the action taken by the first respondent had the effect, directly or indirectly, of prejudicing John Holland in relation to its contract for services.
Accordingly, the respondents engaged in adverse action in terms of s.342(1) of the FW Act as defined by Items 7(a) and (c).
11. Section 361 Reverse Onus
Pursuant to s.361 of the FW Act, upon proof that a person has exercised a “workplace right” and on proof that “adverse action” or “any action” has been taken, it is then presumed that the action was taken for the reasons or intent alleged unless the alleged contravener proves to the contrary. In order to invoke the reverse onus of proof, an applicant need only establish that “the evidence is consistent with the hypothesis” that a respondent was actuated by a proscribed reason (see General Motors Holden Pty Ltd v Bowling (1976) ALJR 241).
Section 361 of the FW Act is in the following terms:
“(1) If:
(a) in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and
(b) taking that action for that reason or with that intent would constitute a contravention of this Part;
it is presumed that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.
(2) Subsection (1) does not apply in relation to orders for an interim injunction.
In Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32, the High Court of Australia said that the task for a decision‑maker is to determine on the balance of probabilities why the person took the adverse action and to ask whether it was for a prohibited reason, or reasons which included a prohibited reason.
The respondents contend that s.342(1) and (2) of the FW Act make a distinction between taking action, on the one hand, and organising action on the other hand. The respondents contend that s.361 of the FW Act does not apply to organising someone else to take action but the taking of action as such. The first respondent submits that as the allegation against the first respondent is organising industrial action or organising adverse action, s.361 of the FW Act has no role to play.
However, for the reasons below, I do not accept that submission.
At the 7am meeting on 16 January 2014, the first respondent incited and encouraged the workers to seek choice of clothing for work; and then organised a vote, proposed a day for their action (being the day after or the following work day) and then announced to the workers on the result of the vote that the workers should exercise their choice of clothing the following day.
On his own evidence, the first respondent engaged in that conduct in the full knowledge that what he was proposing was contrary to the Two Longs Safety Policy and that John Holland was required to have to ensure the health and safety of its workers; and, that the Two Longs Safety Policy was designed to address that obligation.
Moreover, the first respondent knew that if John Holland sought to enforce the Two Longs Safety Policy the next day on any of the workers, they would all walk off the Site. As the first respondent said to John Holland after his meeting with the workers, “touch one, touch all”. Those comments by the first respondent lead to the overwhelming inference that the first respondent had organised industrial action in the event that John Holland sought enforce its Safety Policy the following day.
In the circumstances, I find that the first respondent also engaged in adverse action by organising industrial action.
No evidence was provided by the respondents to rebut the presumption that the first respondent’s actions were taken other than for the reasons alleged. These reasons, inter alia, were to prejudice John Holland directly or indirectly in relation to its building contract; and, to force John Holland to abandon its Two Longs Safety Policy. The industrial action referred to above was organised because John Holland sought to enforce its Two Longs Safety Policy.
Accordingly, the respondents contravened s.340 of the FW Act.
12. Did the first respondent organise any action against John Holland with the intent to coerce John Holland not to exercise its workplace right; or not to exercise its workplace right in a particular way in terms of s.343 of the FW Act?
Section 343 of the FW Act provides that a person, such as the first respondent, must not organise or take, or threaten to organise or take, any action against another person, such as John Holland, with the intent to coerce John Holland not to exercise a workplace right or to exercise a workplace right in a particular way.
The respondents contend that the first respondent did not contravene s.343 of the FW Act. The respondents submit that allegations of coercion “should not be thrown around like confetti”.
As identified in Seven Network (Operations) Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2001] FCA 456 at [41], per Merkel J, the necessary elements of a contravention of s.343 are that:
i)Pressure be exerted which, in a practical sense, will negate choice.
ii)The pressure must involve conduct that is unlawful, illegitimate or unconscionable.
Negation of choice is more than an intent to influence or persuade or induce. Coercion requires a high degree of compulsion and not a lesser form of pressure by which a person is left with a realistic choice as to whether or not to comply (see National Tertiary Education Industry Union v Commonwealth (2002) 117 FCR 114 at 143 per Weinberg J).
In Fair Work Ombudsman v National Jet Systems Pty Ltd (2012) 218 IR 436 at [36], Buchanan J stated that:
“The pressure must be such as to leave no real choice. It must negate, not merely burden, the will”.
An examination of intent is relevant to the first element of coercion, and an objective examination of the circumstances is relevant to the second element (see Esso Australia Pty Ltd v The Australian Workers’ Union [2016] FCAFC 72 at 448 per Buchanan J) (Esso).
12.1 Negation of choice
The first respondent’s relevant actions comprise what he said to the workers at the meeting at 7am on 16 January 2014 (referred to in paragraph 133 above in these Reasons) and the circumstances below, and lead to the overwhelming inference that the first respondent’s conduct was done with the intent of negating the choice of John Holland to enforce its Two Longs Safety Policy without work stoppages. That inference is bolstered by the evidence before this Court of the following circumstances:
i)The first respondent’s plan to impose a choice to wear shorts and short sleeves upon John Holland as had been done at Barangaroo and Tamworth.
ii)The first respondent put his plan to a meeting of workers in the context of suggesting they should have choice and then suggesting that such choice should apply the next morning (being a Friday) or a Monday morning. On discovering the vote was 81 out of 82, the first respondent stated it would be Friday.
iii)Thereafter, the first respondent told John Holland on 16 January 2014, that if it enforced its Two Long Safety Policy on 17 January 2014 by asking any worker to stop work if not dressed in accordance with the Two Longs Safety Policy, all workers on the Site would stop work.
iv)At approximately 8:20am on 16 January 2014, the first respondent told Mr O’Connor, the John Holland project manager, that if any worker was removed from the Site then the whole Site would stop work and return to the crib rooms.
v)At approximately 8:30am on 16 January 2014, the first respondent told the John Holland Safety Manager, Mr Brown, that if John Holland ask one worker to leave, all would go, “Take one out, we all out”.
vi)At approximately 10:00am on 16 January 2014, during the Health and Safety Committee meeting at the Site, the first respondent said words to the effect “Take one out, we all go” and “Touch one, touch all”.
vii)At approximately 12:00pm, when Mr O’Connor was addressing workers at the Site at a toolbox meeting, the first respondent said words to the effect, The boys have spoken. They want shorts they would be wearing them tomorrow. If you touch one, you touch all.
Those actions lead to the overwhelming inference that by using words to the effect of those used by the first respondent on 16 January 2014 at his meeting at 7:00am with the workers (and referred to in para 133 above in these Reasons), and his subsequent statements to Mr O’Connor and Mr Brown referred to above, the first respondent was threatening to organise or was in fact taking action with intent to impose on John Holland a change in its Two Longs Safety Policy to that preferred by the first respondent, namely, choice by the workers. In other words, if the workers came to work the next day in shorts and short sleeves contrary to the Two Longs Safety Policy and if John Holland tried to prevent any of them from working in shorts and short sleeves, the workers would stop work.
In so doing, any choice by John Holland to enforce its Two Longs Safety Policy was negated.
12.2 Was the pressure unlawful or unconscionable?
In the circumstances, the actions of the first respondent on 16 January 2014 constitute “any action” taken against John Holland with the intent to coerce John Holland not to exercise its workplace right to enforce the Two Longs Safety Policy in contravention of s.343 of the FW Act. The action was organising the workers to take industrial action and to attend work wearing short sleeved shirts and shorts and walk off the Site when John Holland enforced its Two Longs Safety Policy.
The industrial action threatened and undertaken in the circumstances that I have found, was unprotected and therefore not lawful. Accordingly, I find that the actions of the respondents were both unlawful. Such conduct does not have to have been intended to be unlawful (see Esso at [176]).
Further, the first respondent’s conduct in seeking to negate John Holland’s choice to enforce its Two Longs Safety Policy, when it had a statutory duty in relation to the health and safety of its workers, was nothing short of unconscionable.
I accept the applicant’s submission that John Holland did not lock out the workers. John Holland did no more than seek to assert its workplace right to ensure compliance by workers of its Two Longs Safety Policy.
In the circumstances, the first respondent contravened s.343 of the FW Act.
13. Respondents’ pleading allegations
The respondents submitted that the applicant’s Amended Statement of Claim, upon which it relied, did not properly plead that the first respondent’s conduct was unlawful, illegitimate or unconscionable and that it was required to do so.
In support, Mr Pearce referred to Laing v CFMEU (No.2) (2016) 155 IR 244 where Ryan J stated in a strike-out application that it was necessary to provide particulars indicating separately each of the matters rely on as establishing that the alleged threat was made with the intent to coerce in the sense that it involved conduct that was unlawful, illegitimate or unconscionable.
The conduct of the first respondent pleaded is to be found in paragraphs 9, 10, 22 and 23 of the Amended Statement of Claim. Those particulars did not particularise the conduct in a manner referred to by Ryan J. However, the conduct being relied upon by the applicant has always been clear. The respondents cannot suggest that they were taken by surprise by the manner in which the case was run by the applicant.
The purpose of pleadings is to make clear the case the respondents have to meet, to avoid surprise to the respondents, to define the issues at trial and thereby to allow only relevant evidence to be admitted. As the Full Court of the Federal Court of Australia said in R Consulting & Drafting Pty Ltd v Cummings [2016] FCAFC 20 at [411]:
“However, it is well established that pleadings are not an end to itself, instead they are means to the ultimate attainment of justice between the parties to litigation…For these reasons, the Courts do not, at least in the current era, take an unduly technical or restrictive approach to pleadings such that, among other things, a party strictly bound by the little meanings of the case it has pleaded. The introduction of case management has, in part, been responsible for this change in approach.”
The case before me has been case managed somewhat intensely, including requiring the parties to file an Agreed Statement of Issues. That document is annexed to these Reasons and short form answers given in relation to each issue identified. The document is marked Schedule 1 to this Judgment.
This is not a case in the circumstances where there can be any doubt of the substance of the case pleaded against the respondents and the evidence relied upon by the applicant. Indeed, the respondents were not required to file Defences or evidence until the applicant had closed its case at the hearing. That course was taken given the civil penalties sought by the applicant against the respondents and the quasi-criminal nature of the proceeding.
I do not accept that the applicant’s failure to identify the particularised conduct relied upon as either unlawful, illegitimate or unconscionable is a fatal pleading error on the part of the applicant given the detail of the conduct provided in support of the allegation of coercion and, as stated above, the pleading of coercion in its terms.
The nature of the applicant’s case is not changed by the pleading defects submitted by the respondents. No practical injustice has been shown. What is important is that coercion in terms of s.343 of the FW Act is pleaded, which it was.
Accordingly, by the first respondent’s actions, John Holland’s choice to implement its Two Longs Safety Policy was negated if it wished to avoid industrial action. By his actions through his words, the first respondent organised the workers to attend work the following day in shorts or short sleeves and to collectively stop work if John Holland sought to enforce its Two Longs Safety Policy by preventing any worker from working on the Site without long pants and long sleeves.
In the circumstances, the first respondent took the action above against John Holland with the intent to coerce John Holland not to exercise its workplace right, namely, to enforce its Two Longs Safety Policy.
By so doing, the first respondent contravened s.343 of the FW Act.
14. Conclusion and liability of the second respondent
For the reasons referred to above, the first respondent engaged in adverse action in contravention of s.340 of the FW Act. Further, the first respondent contravened s.343 of the FW Act by organising or threatening to organise action against John Holland with the intent to coerce John Holland not to exercise its workplace right.
It is common ground that the actions of the first respondent are deemed to be the actions of the second respondent.
Section 363 of FW Act provides that for the purposes of Part 3-1 of the FW Act, the action taken by an officer of an Industrial Association acting in that capacity is taken to be action of the industrial association.
It is common ground that the first respondent was an officer of the second respondent.
By engaging in the conduct that I have set out above in his capacity as an officer of the second respondent, by reason of s.363(1)(b) of the FW Act read with s.363(3), the first respondent’s action and state of mind, as found above, are taken to be the action and state of mind of the second respondent. Accordingly, I find that the second respondent contravened s.340 of the FW Act and s.343 of the FW Act (see Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union (No 2) [2016] FCA 436).
The matter should now be set down for a hearing on penalties and whether declarations should be made.
I certify that the preceding two-hundred and twenty-seven (227) paragraphs are a true copy of the reasons for judgment of Judge Emmett
Date: 28 July 2017
Schedule 1
Agreed Statement of Issues Answered
The answers to the issues stated below have been made in light of the findings and conclusions made in the Reasons for Judgment.
1. Whether the Applicant has standing to bring these proceedings.
Yes
2. Whether John Holland Pty Ltd (John Holland) was an independent contractor within the meaning of section 342(1), item 7, of the Fair Work Act 2009 (Cth) (FW Act).
Yes
3. Whether, on or prior to 16 January 2014, John Holland had a safety policy that workers at the Site (as defined in the Amended Statement of Claim (ASOC)) should wear long pants and long sleeved tops (the Two Longs Safety Policy).
Yes
4. Whether John Holland had a workplace right, within the meaning of section 341(1)(a) of the FW Act namely, a duty to ensure the health and safety of workers on the Site, pursuant to section 19 of the Work Health and Safety Act 2011 (Cth).
Yes
5. Whether John Holland exercised that workplace right by establishing and then enforcing the Two Longs Safety Policy.
Yes
6. Whether on 16 January 2014 the First Respondent engaged in the conduct particularised at paragraphs 9 (i) and (ii) of the ASOC.
Yes
7. Whether, by the conduct particularised at paragraphs 9(i) and (ii) of the ASOC, the First Respondent organised, encouraged or incited workers at the Site to attend work the following day (ie Friday 17 January 2014) in shorts and short sleeved tops and to collectively stop work if John Holland sought to enforce the Two Longs Safety Policy by preventing workers from working on the Site without long pants and a long sleeved top.
Yes
8. Whether on 17 January 2014 a number of workers attended the Site wearing shorts and short sleeved shirts.
Yes
9. Whether on 17 January 2014 a scaffolding worker, who was wearing shorts and a short sleeved shirt, was approached by the Project Manager for the site, Glenn O'Connor, who told the worker not to come back to work until he was wearing Two Longs.
Yes
10. Whether on 17 January 2014 a large number of workers on the Site, stopped work and did not return to work on 17 January 2014.
Yes
11. Whether on 20 January 2014 a large number of worker on the Site attended the Site but did not work for some or all of the day.
Yes
12. Whether on 21 January 2014 a large number of workers on the Site attended the Site but did not work for some or all of the day.
Yes
13. Whether, if any of the conduct described in paragraphs 7 to 12 above occurred, that conduct was adverse action within the meaning of section 342, item 7(a) of the FW Act.
Yes
14. Whether, if any of the conduct described in paragraphs 7 to 12 above occurred, that conduct was adverse action within the meaning of section 342, item 7(c) of the FW Act, being action that had the effect, directly or indirectly, of prejudicing John Holland in relation to its contract for services
Yes
15. Whether the Respondents can, at hearing, assert a positive defence as to the reason or reasons for any action taken by the Respondents in circumstances where no positive defence is disclosed by the Respondents in their filed defences.
Not Applicable
16. Whether, if any of the conduct described in paragraphs 7 to 12 above occurred, the conduct was taken by the First Respondent because John Holland exercised a workplace right by establishing and then enforcing the Two Longs Safety Policy.
Yes
17. Whether therefore in the premises set out above, the First Respondent contravened section 340 of the FW Act.
Yes
18. Whether on 16 January 2014 the First Respondent engaged in the conduct particularised at paragraphs 10 (i) to (iv) of the ASOC.
Yes
19. Whether, if the conduct particularised at paragraphs 9 (i) and (ii) and 10 (i) to (iv) of the ASOC occurred, the conduct was coercion within the meaning of s 343 of the FW Act.
Yes
20. Whether, if the conduct particularised at paragraphs 9 (i) and (ii) and 10(i) to (iv) of the ASOC occurred, and the conduct was coercion within the meaning of s 343 of the FW Act, the conduct was taken by First Respondent with the intention of coercing John Holland to exercise a workplace right in a particular way, namely, by adopting a policy which allowed workers to wear shorts and short sleeve tops.
Yes
21. Whether therefore in the premises set out above, the First Respondent contravened section 343 of the FW Act.
Yes
22. Whether the First Respondent, was at all material times, acting in his capacity as an official of the Second Respondent.
Yes
23. Whether the Second Respondent is liable for conduct of the First Respondent pursuant to s 363 of the FW Act.
Yes
24. Whether the First Respondent, was at all material times, acting in his capacity as an official of the Third Respondent.
Not Applicable
25. Whether the Third Respondent is liable for conduct of the First Respondent pursuant to s 363 of the FW Act.
Not Applicable
- AGLC
- Australian Building and Construction Commissioner v Auimatagi [2017] FCCA 1722
- Case
- [2017] FCCA 1722
- Decision Date
CaseChat Overview and Summary
The primary legal issue before Emmett J was whether Mr. Auimatagi’s conduct, specifically his participation in the blockade, amounted to a contravention of the provisions of the BCII Act prohibiting unlawful industrial action. This required the court to consider the definition of "industrial action" under the Act and whether the actions taken by Mr. Auimatagi fell within that definition, thereby engaging the prohibitions.
Emmett J reasoned that the evidence established Mr. Auimatagi’s active participation in the blockade, which involved preventing access to the construction site. His Honour found that this conduct constituted "industrial action" as defined by the BCII Act, and that such action was "unlawful" under the Act because it was not protected by any relevant provision. Consequently, Emmett J concluded that Mr. Auimatagi had contravened the Act. The court ordered Mr. Auimatagi to pay pecuniary penalties for these contraventions.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.