FEDERAL COURT OF AUSTRALIA
Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2018] FCA 42
File number: NSD 361 of 2016 Judge: FLICK J Date of judgment: 7 February 2018 Catchwords: INDUSTRIAL LAW – exercise of State or Territory OHS rights without an entry permit – permit holder hindering or obstructing or otherwise acting in an improper manner – adverse action – coercive conduct – where subcontractor had a “workplace right” to initiate a process of bargaining for a new enterprise agreement – where union engaged in campaign to secure site allowances in enterprise agreements – accessorial liability – whether an individual can be an accessory to the conduct of a union which arose by reason of the individual’s conduct being deemed to be the conduct of the union – whether union can be deemed to have contravened a provision of the Fair Work Act 2009 (Cth) which the union itself could not have contravened – whether defect in or absence of a Notice of Employee Representational Rights precludes the existence of a “workplace right” to initiate a process of bargaining for a new enterprise agreement – whether applicant must prove that coercive conduct was taken in personal capacity or on own behalf
PRACTICE AND PROCEDURE – privilege against self- incrimination – where Respondents reserve right to claim privilege – split hearing – where protracted adjournment after election to allow for the filing of evidence
Legislation: Evidence Act 1995 (Cth) s 140
Fair Work Act2009 (Cth) ss 172, 173, 174, 181, 340, 341, 342, 343, 360, 361, 363, 480, 484, 494, 500, 546, 550, 793
Federal Court of Australia Act1976 (Cth) ss 37M, 37N
Industrial Relations Act1988 (Cth) s 286
Superannuation Guarantee (Administration) Act1992 (Cth)
Trade Practices Act 1974 (Cth) s 75B
Workplace Relations Act 1996 (Cth) ss 170NC, 728, 767
Marriage Act 1928 (Vic)
Cases cited: Australian Building and Construction Commissioner v Hall [2017] FCA 274
Australian Building and Construction Commissioner v Huddy (No 2) [2017] FCA 1088
Australian Building and Construction Commissioner v Parker [2017] FCA 564, (2017) 266 IR 340
Australian Building and Construction Commissioner v Powell [2017] FCAFC 89, (2017) 268 IR 113
Australian Building and Construction Commissioner v Upton [2017] FCA 847, (2017) 270 IR 190
Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (No 3) [2002] FCA 1294, (2002) ATPR 41-901
Australian Securities and Investments Commission v Rich [2009] NSWSC 1229, (2009) 236 FLR 1
BHP Coal Pty Ltd v Construction, Forestry, Mining and Energy Union [2013] FCA 1291, (2013) 239 IR 363
Briginshaw v Briginshaw (1938) 60 CLR 336
Chamberlain v The Queen (No 2) (1984) 153 CLR 521
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Competition and Consumer Commission [2007] FCAFC 132, (2007) 162 FCR 466
Curran v Thomas Borthwicks & Sons Ltd (1990) 26 FCR 241
Darlaston v Parker [2010] FCA 771, (2010) 189 FCR 1
Director of the Fair Work Building Industry Inspectorate v McDermott [2016] FCA 1147
Esso Australia Pty Ltd v Australian Workers’ Union [2016] FCAFC 72, (2016) 245 FCR 39
Esso Australia Pty Ltd v The Australian Workers’ Union [2017] HCA 54
Fair Work Ombudsman v Australian Workers’ Union [2017] FCA 528
Fair Work Ombudsman v Maritime Union of Australia [2017] FCA 1363
Fair Work Ombudsman v NSH North Pty Ltd trading as New Shanghai Charlestown [2017] FCA 1301
Fair Work Ombudsman v South Jin Pty Ltd [2015] FCA 1456
Giorgianni v The Queen (1985) 156 CLR 473
Hanley v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2000] FCA 1188, (2000) 100 FCR 530
Jones v Dunkel (1959) 101 CLR 298
Laing v Construction, Forestry, Mining and Energy Union (No 2) [2006] FCA 750, (2006) 155 IR 244
Mahenthirarasa v State Rail Authority (NSW) (No 2) [2008] NSWCA 201, (2008) 72 NSWLR 273
Manly Council v Byrne [2004] NSWCA 123
National Tertiary Education Industry Union v Commonwealth of Australia [2002] FCA 441, (2002) 117 FCR 114
National Tertiary Education Industry Union v Swinburne University of Technology [2015] FCAFC 98, (2015) 232 FCR 246
Peabody Moorvale Pty Ltd v Construction, Forestry, Mining and Energy Union [2014] FWCFB 2042, (2014) 242 IR 210
Seven Network (Operations) Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2001] FCA 456, (2001) 109 FCR 378
Shepherd v The Queen (1990) 170 CLR 573
Tattsbet Ltd v Morrow [2015] FCAFC 62, (2015) 233 FCR 46
Victoria v Construction, Forestry, Mining and Energy Union [2013] FCAFC 160, (2013) 218 FCR 172
Wright v Wheeler Grace & Pierucci Pty Ltd [1988] ATPR 40-865
Date of hearing: 2, 6, 26 and 27 June 2017 Date of last submissions: 12 July 2017 Registry: New South Wales Division: Fair Work Division National Practice Area: Employment & Industrial Relations Category: Catchwords Number of paragraphs: 341 Counsel for the Applicant: Mr Y Shariff Solicitor for the Applicant: Corrs Chambers Westgarth Counsel for the First, Second, Third, Fifth, Eighth, Ninth and Fourteenth Respondents: Mr I Latham Solicitor for the First, Second, Third, Fifth, Eighth, Ninth and Fourteenth Respondents: Taylor & Scott Lawyers Counsel for the Thirteenth Respondent: Mr B Cross Solicitor for the Thirteenth Respondent: Access Law Group ORDERS
NSD 361 of 2016 BETWEEN: AUSTRALIAN BUILDING AND CONSTRUCTION COMMISSIONER
Applicant
AND: CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION
First Respondent
DARREN TAYLOR
Second Respondent
ROBERT KERA (and others named in the Schedule)
Third Respondent
JUDGE:
FLICK J
DATE OF ORDER:
7 FEBRUARY 2018
THE COURT ORDERS THAT:
1.The parties are to bring in Short Minutes of Orders to give effect to these reasons within 14 days.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
In March 2016 the Director of the Fair Work Building Industry Inspectorate filed in this Court an Originating Application and a Statement of Claim.
The Construction, Forestry, Mining and Energy Union (the “CFMEU”) and thirteen individual officers or employees of the Union were named as Respondents. A series of amendments were made to the pleading, culminating in the Second Amended Originating Application filed in May 2017, the Third Further Amended Statement of Claim also filed in May 2017, and Third Amended Defences or (for the Thirteenth Respondent) a Third Further Amended Defence filed in June 2017.
The amendments to the pleadings in May 2017 abandoned the claims made against six of the individual Respondents (the Fourth, Sixth, Seventh, Tenth, Eleventh and Twelfth Respondents).
In February 2017, the Australian Building and Construction Commissioner (the “Commissioner”) was substituted as the Applicant in the proceeding.
In very summary form, the Commissioner seeks in the Second Amended Originating Application declaratory relief in respect to those contraventions that were ultimately put in issue at the hearing:
·contraventions of s 340 of the Fair Work Act2009 (Cth) (the “Fair Work Act”), such contraventions alleged to have occurred on 5 June 2014;
·contraventions of s 343 of the Fair Work Act, such contraventions alleged to have occurred on 5 June 2014 and 11, 16 and 17 March 2015;
·contraventions of s 494 of the Fair Work Act, such contraventions alleged to have occurred on 11 and 12 March 2015; and
·contraventions of s 500 of the Fair Work Act, such contraventions alleged to have occurred on 11 March 2015.
Declarations are also sought as to accessorial liability pursuant to s 550 of the Fair Work Act. Penalties are sought pursuant to s 546 against all of the remaining Respondents except Mr Garvey.
Again in very summary form, for present purposes it is sufficient to note that the dispute between the parties largely focusses upon building sites at Rhodes (the “Rhodes Site”) and Wolli Creek (the “Wolli Creek Site”) in Sydney. These were building sites at which construction work was being undertaken by companies within the BKH Group (“BKH”), that Group including:
·Wexdek Formwork Pty Ltd, trading as BKH Contractors (“BKH Contractors”);
·Conbuild Services Pty Ltd (“Conbuild”);
·Ultrabuild Group Pty Ltd (“Ultrabuild”);
·Concrete Structures Group (“CSG”); and
·Corach Holdings Limited.
BKH Contractors had been engaged to perform concrete placement work at the Rhodes Site. Conbuild and Ultrabuild also supplied labour to that project. CSG had been engaged to perform concrete placement and formwork at the Wolli Creek Site. BKH Contractors, Conbuild and Ultrabuild supplied labour to CSG for that project. BKH was also performing work at other sites, including at Darling Harbour and Barangaroo in Sydney.
Of relevance to the dispute was the fact that by mid-2014 an existing enterprise agreement was due to expire. The Commissioner alleges that the CFMEU by one or other of the individual Respondents made demands upon BKH, requiring it to sign an enterprise agreement on terms demanded by the CFMEU. At the heart of the dispute was the action taken by one or other of the Respondents to secure agreement to the terms of the enterprise agreement the Union was proposing and, in particular, agreement as to the payment to workers of a site allowance.
In December 2016 an Interlocutory Application was filed seeking to have various paragraphs of the Amended Statement of Claim struck out. The bases upon which the Interlocutory Application sought such relief founded upon submissions that:
·there was no “workplace right” able to be relied upon in the absence of a valid Notice of Employee Representational Rights (sometimes referred to as a “NERR”) having been issued; and
·the pleadings as to accessorial liability were deficient.
In respect to this Interlocutory Application, it has been concluded that:
·the former submission is rejected.
The latter issue as to the adequacy of the pleadings was overtaken by amendments effected, including the amendments effected by the Third Further Amended Statement of Claim.
Many of the particular contraventions which were initially pleaded were, during the course of the hearing, ultimately admitted. In respect to those contraventions which remain to be resolved, it has been concluded (in summary form) that:
·the contravention of s 494 alleged against Mr Luke Collier for entry without an entry permit on 11 March has been made out;
·the contraventions of s 500 alleged against Messrs Mansour Razaghi and Benito Manna have been made out;
·the contraventions of ss 340 and 343 against Messrs Darren Taylor and Robert Kera have been made out; and
·the contraventions alleged against the CFMEU have been made out.
In order to explain the basis upon which these conclusions have been reached, it is necessary to more fully explore:
·the evidence;
·the provisions of the Fair Work Act of relevance;
·the adequacy of the pleadings as against the CFMEU;
·the terms of the competing enterprise agreements; and
·the facts of relevance to the contraventions remaining to be resolved.
It is thereafter necessary to resolve the remaining alleged contraventions by reference to the facts as found and the statutory provisions of relevance.
THE EVIDENCE
There was filed on behalf of the Applicant a series of either affidavits or statements.
The following table summarises the witnesses of the Applicant which provided affidavits that were read at the hearing, the positions occupied by each of these witnesses at the relevant time and whether they were cross-examined:
Witness Position occupied Cross-examined Adam Pascoe Fair Work Building Industry Inspector 12 April 2017 Amaan Faiz Fair Work Building Industry Inspector, Senior Investigator Darren Jonathan Power Construction Director NSW for ProBuild Australia Pty Ltd 12 April 2017 Terry Morton Fair Work Building Inspectorate Inspector, Senior Investigator Harry Faros Fair Work Building Industry Inspector Veronica Tadros Fair Work Building Industry Inspector Guilietta Siciliano Fair Work Building Industry Inspector 18 April 2017 Nick Frank Geracitano Senior Project Manager, ProBuild Constructions (Aust) Pty Ltd 12 April 2017 David Shao Fair Work Building Industry Inspector David Robert Armstrong Fair Work Building Industry Inspector/Senior Investigator 18 April 2017 Edward Manuel Concreter, Brocrete Pty Ltd 12 April 2017 Dermot John O’Sullivan General Manager, Wexdek 10 April 2017 Richard Lennox NSW Managing Director, ProBuild 12 April 2017
A number of the Applicant’s witnesses did not provide affidavits but did provide witness statements. These witnesses gave oral evidence during the period from 11 to 19 April 2017 and the statements were tendered as exhibits. These witnesses and the positions they occupied were as follows:
Witness Position occupied Michael Ross Webster Work Health and Safety Officer/CFMEU Delegate, Billbergia Group Conor McBrien Site Manager, Billbergia Pty Ltd Patrick Phelan Structures Foreman, Billbergia Jani Olavi Suominen Site Manager, BKH Nikola Mardesic Estimator, Perform Aust Darren James Smith Site Foreman, BKH Mark Layton Ramm Foreman, BKH Clayton Robert Gow Site Forman, BKH Luke John Bartley Concreter, BKH Frederick William Allan Concreter, BKH Bradley Thomas McCann Concrete Pump Operator/Linesman, BKH Group Brendan Patrick Howlin CEO, BKH
The Respondents on 20 April 2017 elected to waive any privilege as to self-incrimination. Affidavits were filed. The Respondents’ witnesses and whether they were cross-examined may be summarised as follows:
Witness Cross-examined Ben Craig Garvey Darren Taylor 6 June 2017 Mansour Razaghi 26 June 2017 Benito Manna 6 June 2017 Rebel Hanlon 2 June 2017
An expert report prepared by Mr Jonathan O’Brien was also filed on behalf of the Respondents. Mr O’Brien was cross-examined on the contents of that report on 2 June 2017. Messrs Collier and Kera did not give evidence.
The election made by one or other of the Respondents was, not surprisingly, made after the conclusion of the evidence in chief of the witnesses called for the Applicant and their cross-examination. An adjournment was occasioned for the Respondents to thereafter file such evidence as they wished to rely upon having made their election to waive privilege.
It should nevertheless be noted that an adjournment for such a protracted period was not warranted. In future cases it may well be expected that Respondents will be called upon to make an election and – in the event that privilege is waived – to file such evidence as they wish to rely upon within a short period of time and for the hearing to continue thereafter relatively smoothly. An adjournment for a protracted period, rather than a matter of days (in the absence of satisfactory reason) may be expected to be the exception rather than the rule.
THE FAIR WORK ACT
Those provisions of the Fair Work Act which assumed prominence in the present proceeding have been canvassed in many previous decisions of this Court.
But a brief overview of the most relevant provisions now in issue nevertheless remains prudent.
The making of an agreement – the need for notice & voting
Sections 172 and 173 of the Fair Work Act provide for the manner in which an enterprise agreement is to be made and the requirement to give notice of employee’s representational rights.
Section 172 provides in relevant part as follows:
Single-enterprise agreements
…
(2)An employer, or 2 or more employers that are single interest employers, may make an enterprise agreement (a single-enterprise agreement):
(a)with the employees who are employed at the time the agreement is made and who will be covered by the agreement; or
…
Section 173(1) provides as follows:
Notice of employee representational rights
Employer to notify each employee of representational rights
(1)An employer that will be covered by a proposed enterprise agreement that is not a greenfields agreement must take all reasonable steps to give notice of the right to be represented by a bargaining representative to each employee who:
(a) will be covered by the agreement; and
(b) is employed at the notification time for the agreement.
Section 174 provides for the content and form of a notice given under s 173.
Section 181 thereafter provides for a vote to be taken in respect to a proposed agreement. That section provides as follows:
Employers may request employees to approve a proposed enterprise agreement
(1)An employer that will be covered by a proposed enterprise agreement may request the employees employed at the time who will be covered by the agreement to approve the agreement by voting for it.
(2)The request must not be made until at least 21 days after the day on which the last notice under subsection 173(1) (which deals with giving notice of employee representational rights) in relation to the agreement is given.
(3)Without limiting subsection (1), the employer may request that the employees vote by ballot or by an electronic method.
When undertaking a review of the provisions as to the making of an enterprise agreement, Jessup J in National Tertiary Education Industry Union v Swinburne University of Technology [2015] FCAFC 98, (2015) 232 FCR 246 at 253 summarised their effect as follows:
[22] Putting these provisions together in the chronological order which is implied by their terms, the following is the scheme contemplated. First, the employer agrees to bargain or initiates bargaining. Secondly, there is then a period of 14 days during which the employer gives the representational rights notices to the employees who were employed when the employer agreed to bargain. Thirdly, bargaining takes place. Although that process is not directly relevant to the subject here being considered, it should be noted that at least 21 days must pass after the giving of the last representational rights notification and the employer’s request under s 181(1). But there appears to be no outer limit to that period. Fourthly, the employer gives a copy of the agreement upon which it is proposed that the employees should vote, and other required materials, to the employees employed at that time. Fifthly, no more than seven days later, the employer requests the employees who are employed at that time to approve the agreement by voting for it. Sixthly, when a majority of those employees who cast a valid vote approve the agreement, the agreement is made.
The taking of adverse action – s 340
Section 340 of the Fair Work Act provides as follows:
Protection
(1) A person must not take adverse action against another person:
(a) because the other person:
(i) has a workplace right; or
(ii) has, or has not, exercised 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.
(2)A person must not take adverse action against another person (the second person) because a third person has exercised, or proposes or has at any time proposed to exercise, a workplace right for the second person’s benefit, or for the benefit of a class of persons to which the second person belongs.
Section 341 sets forth the meaning of “workplace right” and relevantly provides as follows:
Meaning of workplace right
Meaning of workplace right
(1) A person has a workplace right if the person:
…
(b)is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument; or
…
Meaning of process or proceedings under a workplace law or workplace instrument
(2)Each of the following is a process or proceedings under a workplace law or workplace instrument:
…
(e) making, varying or terminating an enterprise agreement;
…
Of present relevance is the exercise of the “workplace right” to “initiate … a process … under a workplace law” (s 341(1)(b)), namely the making of an enterprise agreement (s 341(2)(e)).
For the purposes of s 341(1)(b) it is sufficient if a person proposes to initiate a process under a workplace law: Tattsbet Ltd v Morrow [2015] FCAFC 62, (2015) 233 FCR 46 (“Tattsbet”). Ms Morrow there sought to argue (inter alia) that “adverse action” had been taken in circumstances where she was deemed to be an employee by reason of the Superannuation Guarantee (Administration) Act1992 (Cth). However, on the facts of that case, the Act did not apply to Ms Morrow as a “workplace law” for the purposes of s 341(1)(a). She also sought to argue, in the alternative, that she had been prevented from exercising a “workplace right” for the purposes of s 341(1)(b). Within that context, Jessup J observed (at 73):
[107] Although the respondent could not succeed under s 341(1)(a) of the [Fair Work Act], that conclusion does not put her out of court under para (b) of the subsection. That paragraph is not dependent on the existence of an entitlement. It depends, rather, upon the person’s proposal to initiate a process or proceedings under a workplace law. It seems to have been accepted below that, in point of fact, the [Superannuation Guarantee (Administration) Act 1992 (Cth)] did provide scope for a person in the position of the respondent to initiate a process or proceedings to have determined, one way or the other, whether she was entitled to superannuation. In such a setting, the process or proceedings which the respondent proposed to initiate, or to participate in, would, putatively, have been based on her contention that she was an employee. In the view I take, that contention would have been unmeritorious, but the [Superannuation Guarantee (Administration) Act 1992 (Cth)] was a “workplace law” as defined for the purposes of the respondent’s proposal. She would have been seeking to establish an entitlement under legislation which was a workplace law in relevant respects. The operation of s 341(1)(b) is not limited to proposals to initiate processes or proceedings which would lead to the upholding of the right or entitlement sought to be vindicated.
Chief Justice Allsop and White J agreed. Of importance, it may be noted, was that Jessup J regarded it as sufficient for a case to fall within s 341(1)(b) that Ms Morrow “propos[ed] to initiate a process … under a workplace law”.
Section 341 of the Fair Work Act defines those circumstances in which a person takes “adverse action” against another person and provides in relevant part as follows:
Meaning of adverse action
(1)The following table sets out circumstances in which a person takes adverse action against another person.
Meaning of adverse action Item Column 1
Adverse action is taken by …
Column 2
if …
… 7 an industrial association, or an officer or member of an industrial association, against a person the industrial association, or the officer or member of the industrial association:
…
(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
…
(2)Adverse action includes:
(a)threatening to take action covered by the table in subsection (1); and
(b)organising such action.
…
When considering the terms of Item 7(c) in s 342(1), Jessup J in Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2017] FCA 62 (“Webb Dock Case”) concluded:
[48] The next question is whether Messrs Myles and Hall took adverse action against McConnell Dowell. The only provision of the [Fair Work Act] that would be relevant to that question was item 7(c) in the table to s 342(1). Although the parties’ agreement did not descend to particulars, they did agree that McConnell Dowell was an “independent contractor”, and that the action taken by Messrs Myles and Hall on 5 March 2015 was adverse action against it within the meaning of s 342(1). This can only have been a reference to the action that had the effect, directly or indirectly, of prejudicing McConnell Dowell in relation to a contract for services. McConnell Dowell was a party to two such contracts, one with the Port of Melbourne Corporation and one with Coastal Steel. There is no agreement that any employee of McConnell Dowell was prevented, or dissuaded, from entering the site, but it is agreed that the respondents’ blockade had the effect of preventing all vehicles from entering the site. This was, in my view, sufficient to engage the terms of item 7(c).
Messrs Myles and Hall were officers and employees of the CFMEU. McConnell Dowell Constructors (Aust) Pty Ltd was the head contractor for building works in connection with the project in issue in that case.
An intent to coerce – s 343
Section 343 of the Fair Work Act provides as follows:
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.
(2) Subsection (1) does not apply to protected industrial action.
The requirements to be satisfied to establish an “intent to coerce” have been reviewed in a number of authorities of this Court, including Australian Building and Construction Commissioner v Hall [2017] FCA 274. Those authorities establish the following propositions.
First, two elements must be established to prove an “intent to coerce” – there must be an intent to exert pressure that in a practical sense will negate choice and the pressure must involve conduct that is unlawful, illegitimate or unconscionable: Seven Network (Operations) Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2001] FCA 456 at [41], (2001) 109 FCR 378 at 388 per Merkel J (“Seven Network”). That case concerned threats by the Union to take industrial action that would interfere with the televising of football matches and the Olympic Games in August and September 2000, in contravention of s 170NC(1) of the Workplace Relations Act 1996 (Cth) (the “Workplace Relations Act”). Section 170NC(1) provided as follows:
A person must not:
(a) take or threaten to take any industrial action or other action; or
(b) refrain or threaten to refrain from taking any action;
with intent to coerce another person to agree, or not to agree, to:
(c)making, varying or terminating, or extending the nominal expiry date of, an agreement under Division 2 or 3; or
(d) approving any of the things mentioned in paragraph (c).
Justice Merkel reviewed the authorities with respect to an intention to coerce and summarised the position as follows (at 388):
[41] The above cases establish that there must be two elements to prove “intent to coerce” under s 170NC(1). First, it needs to be shown that it was intended that pressure be exerted which, in a practical sense, will negate choice. Second, the exertion of the pressure must involve conduct that is unlawful, illegitimate or unconscionable. The requirement that the pressure exerted be unlawful, illegitimate or unconscionable must be considered in the context of the scheme of the Act and of the fact that, subject to the immunity in respect of protected industrial action under s 170MT of the Act, many forms of industrial action are unlawful: see Ansett Transport Industries (Operations) Pty Ltd v Australian Federation of Air Pilots [1991] 1 VR 637.
This passage was endorsed by Buchanan and Griffiths JJ in Victoria v Construction, Forestry, Mining and Energy Union [2013] FCAFC 160 at [70] to [72], (2013) 218 FCR 172 at 187. There under consideration was s 343 of the Fair Work Act. Buchanan and Griffiths JJ held that the presumption imposed by s 361 applied: [2013] FCAFC 160 at [54], (2013) 218 FCR at 185.
As to the former of these two elements – the need for the pressure to “negate choice” – a “high degree of compulsion” is required: National Tertiary Education Industry Union v Commonwealth of Australia [2002] FCA 441, (2002) 117 FCR 114. Again in the context of considering s 170NC of the Workplace Relations Act, Weinberg J there also reviewed the authorities and concluded (at 143):
[103] The approach to the expression “intent to coerce” taken in each of the authorities set out above makes it clear that what is required is an intent to negate choice, and not merely an intent to influence or to persuade or induce. Coercion implies a high degree of compulsion, at least in a practical sense, and not some lesser form of pressure by which a person is left with a realistic choice as to whether or not to comply.
As to the latter of these two elements – the need for the pressure to involve conduct that is “unlawful, illegitimate or unconscionable” – it is not necessary to establish that a person intended to act unlawfully. The determination of whether action engaged in was unlawful is determined objectively: Esso Australia Pty Ltd v Australian Workers’ Union [2016] FCAFC 72, (2016) 245 FCR 39 at 84 to 87. Buchanan J (with whom Siopis J agreed) there observed:
[176] In my view, it should not be accepted that it is necessary to establish that a person intended to act unlawfully etc. Nor would it be a defence to show that a person believed their action would be, or was, lawful.
…
[194] … The requirement of intent applies to the purpose of negating choice. The additional element that the means employed be unlawful, etc involves an objective test. That approach is consistent with the common law origins of the notion of coercion which can be traced back to the tort of economic duress, as explained in the cases to which I referred earlier. In that common law context, the notion of purpose, or intent, applies to the first element but not the second. There is no reason to think that the statutory adoption of the common law concept has altered its nature. …
A little later his Honour further observed (at 89):
[200] … an examination of intent is relevant to the first element of coercion, and an examination of objective circumstances is relevant to the second element.
See also Esso Australia Pty Ltd v The Australian Workers’ Union [2017] HCA 54 at [59] to [61] per Kiefel CJ, Keane, Nettle and Edelman JJ. Similarly, in Seven Network [2001] FCA 456, (2001) 109 FCR 378 Merkel J referred to Giorgianni v The Queen (1985) 156 CLR 473 at 504 to 507 and continued on to observe (at 387):
[35] Similarly, the intent required for the purposes of s 170NC relates to actual knowledge of the circumstances that made the conduct in question coercive conduct. For the reasons stated in Giorgianni, if the person in question had such knowledge, that person will not escape liability by establishing that he or she believed that the conduct was lawful. ...
Second, a person engages in conduct intended to coerce a person even if the conduct has one or several other purposes or objectives: Hanley v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2000] FCA 1188 at [45], (2000) 100 FCR 530 at 541 per Ryan, Moore and Goldberg JJ. Section 360 of the Fair Work Act only reinforces this conclusion.
The right of entry & the exercise of OHS rights – ss 484 & 494
Section 484 of the Fair Work Act appears in Part 3-4 of the Act. The object of Pt 3-4 are set forth as follows in s 480:
Object of this Part
The object of this Part is to establish a framework for officials of organisations to enter premises that balances:
(a)the right of organisations to represent their members in the workplace, hold discussions with potential members and investigate suspected contraventions of:
(i) this Act and fair work instruments; and
(ii) State or Territory OHS laws; and
(b)the right of employees and TCF award workers to receive, at work, information and representation from officials of organisations; and
(c)the right of occupiers of premises and employers to go about their business without undue inconvenience.
The “balance” there referred to was addressed as follows by Allsop CJ, White and O’Callaghan JJ in Australian Building and Construction Commissioner v Powell [2017] FCAFC 89, (2017) 268 IR 113 at 122 to 123:
[45] The balance referred to is of competing “rights”. Certainly the “right” in para (c) is not a strict legal right. Importantly … the “right” in para (a) is “of organisations” to do certain things including “investigate suspected contraventions of State or Territory OHS laws”. Certainly the expression of the matter in para (a) is support for the proposition that the object of the Part was to balance rights one of which was that of unions, through their officials, to come on to premises for purposes of the kind dealt with in State and Territory legislation that in terms conferred rights on union officials to enter premises for the kinds of purposes referred to in para (a) in s 478 …
Section 484 provides as follows:
Entry to hold discussions
A permit holder may enter premises for the purposes of holding discussions with one or more employees or TCF award workers:
(a) who perform work on the premises; and
(b)whose industrial interests the permit holder’s organisation is entitled to represent; and
(c) who wish to participate in those discussions.
The “purpose” of a person’s entry is to be assessed objectively having regard to all the circumstances, including a person’s stated purposes in seeking entry: Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2015] FCA 1293 (“DFWBII v CFMEU”). White J there concluded:
[71] The purpose of a person’s entry in the context of s 484 is to be assessed objectively having regard to all the surrounding circumstances. The statements made by the person at the time of the entry, or subsequently, may be relevant to that assessment but are not conclusive. The person’s conduct and other circumstances after the entry may be more revealing of the person’s actual purpose or purposes.
In commenting upon these observations, Charlesworth J in Director of the Fair Work Building Industry Inspectorate v McDermott [2016] FCA 1147 said:
[109] It was submitted on behalf of Mr Sloane that this passage should not be followed because it advances an objective test for the assessment of a permit holder’s purpose for entering premises. The passage, it was submitted, is inconsistent with the reasons of Dowsett J in [Construction, Forestry, Mining and Energy Union v John Holland Pty Ltd [2010] FCAFC 90, (2010) 186 FCR 88] on appeal, as approved by the Full Court in [Bragdon v Director of the Fair Work Building Industry Inspectorate [2016] FCAFC 64, (2016) 242 FCR 46]. This Court was informed that the respondents in DFWBII v CFMEU had commenced an appeal from that judgment. Counsel for Mr Sloane submitted that delivery of judgment in this matter should be delayed pending the finalisation of that appeal. In my opinion, it is neither appropriate nor necessary to delay judgment in this matter pending the resolution of the appeal.
[110] I proceed on the basis that the word “purpose” in s 484 of the [Fair Work Act] is a reference to the subjective purpose of the permit holder and that the enquiry to be undertaken is one involving an assessment of the permit holder’s state of mind. Although it is not necessary for the Director to prove, as an element of a contravention of s 500 of the [Fair Work Act], that the workers at the Site objectively had the characteristics prescribed in s 484 of the [Fair Work Act], the characteristics of the workers, as understood by the alleged contravenor, will be relevant in determining whether the contravenor exercised or was seeking to exercise a right of entry to premises for the subjective purpose of holding discussions with them: Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2015] FCA 1287, [156] – [158] (White J).
[111] It is trite to say that a finding as to a person’s state of mind is a finding of fact to be made upon an assessment of all the surrounding circumstances. Read in the context of his Honour’s reasons for judgment in DFWBII v CFMEU as a whole, I do not understand the passage of White J extracted at [108] above to express any principle to the contrary.
Section 494(1) of the Fair Work Act provides as follows:
An official of an organisation must not exercise a State or Territory OHS right unless the official is a permit holder.
Proof of intent & the reverse onus of proof – ss 360, 361 & 363
Section 360 of the Fair Work Act provides as follows:
Multiple reasons for action
For the purposes of this Part, a person takes action for a particular reason if the reasons for the action include that reason.
Section 361, an oft invoked provision in industrial cases, provides as follows:
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.
(3)Subsection (1) does not apply in relation to orders for an interim injunction.
Section 363(1) provides as follows:
Actions of industrial associations
(1)For the purposes of this Part, each of the following is taken to be action of an industrial association:
(a) action taken by the committee of management of the industrial association;
(b)action taken by an officer or agent of the industrial association acting in that capacity;
(c)action taken by a member, or group of members, of the industrial association if the action is authorised by:
(i) the rules of the industrial association; or
(ii) the committee of management of the industrial association; or
(iii)an officer or agent of the industrial association acting in that capacity;
(d)action taken by a member of the industrial association who performs the function of dealing with an employer on behalf of the member and other members of the industrial association, acting in that capacity;
(e)if the industrial association is an unincorporated industrial association that does not have a committee of management—action taken by a member, or group of members, of the industrial association.
Hinder or obstruct – s 500
Section 500 of the Fair Work Act provides as follows:
Permit holder must not hinder or obstruct
A permit holder exercising, or seeking to exercise, rights in accordance with this Part must not intentionally hinder or obstruct any person, or otherwise act in an improper manner.
In Darlaston v Parker [2010] FCA 771 at [47] to [52], (2010) 189 FCR 1 at 13 to 17, the authorities in relation to the expression “hinder or obstruct” were reviewed, including those authorities which employed that phrase in the context of the statutory offence of obstructing a police officer. A similar review had been undertaken by Gray J in Curran v Thomas Borthwicks & Sons Ltd (1990) 26 FCR 241. His Honour there concluded in respect to s 286 of the Industrial Relations Act1988 (Cth) (at 258):
It follows that the proper construction of the phrase “hinder or obstruct” in the proviso to s 286(1) involves a requirement that the authorised officer do some positive act by way of hindrance or obstruction, or at least decline to move from a place in which he or she is likely to hinder or obstruct an employee. Apart from a failure to move, it is difficult to envisage a hindrance or obstruction that would fall within the proviso to s 286(1) but would not involve some positive conduct on the part of the authorised officer. Even if it is unnecessary to reach this conclusion, I am of the view that the mere presence of an authorised officer who is the subject of violent dislike by one or more employees, to the extent that those employees are prepared to cease work while the authorised officer is on the premises, cannot amount to a hindrance or obstruction by the authorised officer of those employees in the performance of their work.
After citing Curran, in Darlaston it was concluded in respect to s 767 of the Workplace Relations Act as follows (at 17):
[52] For the purposes of s 767(1) it is considered that the reference to “intentionally hinder or obstruct” is a reference to any act or conduct that actually makes it more difficult for the person who is “hindered or obstructed” to discharge his functions, other than an act or conduct which is accidental. The act must be of such a nature that it is an “appreciable” obstruction or interference. A trivial act, or even an act which could not reasonably be regarded as an obstruction or interference, would not fall within s 767(1).
Accessorial liability – ss 550 & 793
An exposure on the part of a body corporate such as the CFMEU to the imposition of a civil penalty may relevantly arise under the Fair Work Act by reason of its being “involved in” a contravention (as provided for in s 550) or by reason of a liability assumed by reason of the conduct of an officer, employee or agent acting within the scope of his authority (as is provided for in s 793). Any vicarious liability that the CFMEU might have assumed at common law was not a question pursued during the course of the present hearing.
But difficulties in the construction and application of these provisions, and in particular s 793, have recently emerged.
Section 550 is expressed in comparatively simple terms and largely replicates earlier statutory provisions such as s 75B of the Trade Practices Act1974 (Cth). That section, in very summary form, provides that a person who is “involved in a contravention” is “taken to have contravened that provision”. The section in its entirety provides as follows:
Involvement in contravention treated in same way as actual contravention
(1)A person who is involved in a contravention of a civil remedy provision is taken to have contravened that provision.
(2)A person is involved in a contravention of a civil remedy provision if, and only if, the person:
(a) has aided, abetted, counselled or procured the contravention; or
(b)has induced the contravention, whether by threats or promises or otherwise; or
(c)has been in any way, by act or omission, directly or indirectly, knowingly concerned in or party to the contravention; or
(d) has conspired with others to effect the contravention.
The section, by its terms, thus provides that a “person” who is “involved in a contravention” is “taken to have contravened” that provision.
For the purposes of this provision, there is no difficulty in giving content to s 550(2)(c). With reference to s 75B of the Trade Practices Act, Mason ACJ, Wilson, Deane and Dawson JJ in Yorke v Lucas (1985) 158 CLR 661 at 670 concluded that “a person cannot be knowingly concerned in a contravention unless he has knowledge of the essential facts constituting the contravention”. Their Honours further observed that the “proper construction of par. (c) requires a party to a contravention to be an intentional participant, the necessary intent being based upon knowledge of the essential elements of the contravention”.
The same approach has been applied in respect to s 550(2)(c): Fair Work Ombudsman v Maritime Union of Australia [2017] FCA 1363 at [100] per Jagot J. Section 550 acts “to protect the public by making each entity or person that is responsible for the unlawful conduct accountable for their conduct and separately penalised”: Fair Work Ombudsman v NSH North Pty Ltd trading as New Shanghai Charlestown [2017] FCA 1301 at [154] per Bromwich J.
Section 793 of the Fair Work Act is not expressed in such simple terms as s 550. And the purpose of s 793 is different to that served by s 550. Section 793 is directed to identifying those circumstances in which a body corporate is to be “taken … to have been engaged” in conduct pursued by (for example) “an officer, employee or agent”. The heading to that section is “Liability of bodies corporate”. It is thus a section clearly directed at sheeting home to a body corporate “liability” for the conduct of others. That section provides in relevant part as follows:
Liability of bodies corporate
Conduct of a body corporate
(1) Any conduct engaged in on behalf of a body corporate:
(a)by an officer, employee or agent (an official) of the body within the scope of his or her actual or apparent authority; or
(b)by any other person at the direction or with the consent or agreement (whether express or implied) of an official of the body, if the giving of the direction, consent or agreement is within the scope of the actual or apparent authority of the official;
is taken, for the purposes of this Act and the procedural rules, to have been engaged in also by the body.
State of mind of a body corporate
(2)If, for the purposes of this Act or the procedural rules, it is necessary to establish the state of mind of a body corporate in relation to particular conduct, it is enough to show:
(a)that the conduct was engaged in by a person referred to in paragraph (1)(a) or (b); and
(b) that the person had that state of mind.
Meaning of state of mind
(3) The state of mind of a person includes:
(a) the knowledge, intention, opinion, belief or purpose of the person; and
(b) the person’s reasons for the intention, opinion, belief or purpose.
…
(5) In this section, employee has its ordinary meaning.
Section 793, unlike s 550, is expressed in terms of identifying those circumstances in which a “body corporate” is “taken” to have been engaged in “conduct” engaged in on its behalf.
A number of questions arise in respect to liability sought to be ascribed to a body corporate pursuant to either s 550 or s 793 by reason of the conduct of “an officer, employee or agent” and the liability which may be assumed by a principal for the conduct of another at common law.
Of present concern are two interrelated difficulties, namely:
·whether an individual who contravenes a provision of the Fair Work Act can be found to be an accessory to the same contravention by reason of the vicarious liability of the CFMEU; and
·whether the CFMEU can be found liable pursuant to ss 550 and 793 of a contravention of a provision, such as s 500, which focuses on the conduct of an individual, being a permit holder.
The former difficulty was addressed, albeit with reference to the legislative scheme set forth in the Trade Practices Act, in Wright v Wheeler Grace & Pierucci Pty Ltd [1988] ATPR 40-865. When considering s 75B of that Act French J, when sitting as a Judge of this Court, concluded that an individual could not be an accessory to the conduct of a body corporate whose liability arises solely by reason of the conduct of the individual. His Honour there concluded (at 49,376 to 49,377):
This raises a question whether a natural person can be accessory to a corporate principal whose liability arises from the act of that person. There could be a case where a natural person engages in preliminary conduct of an accessorial character followed by distinct conduct attributable to a corporation as principal. But where the conduct upon which liability is founded is the only relevant conduct, it is difficult to see how it can also bear that accessorial character. This difficulty was recognised by the High Court in Yorke & Anor v. Lucas (1985) ATPR ¶40-622; (1985) 61 A.L.R. 307. The point in issue there related to the requirement that a person involved in a contravention by reason of sec. 75B have knowledge of the essential matters making up the contravention. However, at ATPR p. 47,057; A.L.R. p. 313, in the joint judgment of Mason A.C.J., Wilson, Deane and Dawson JJ. the following observation is found:
“It follows from what we have said that both the trial Judge and the Full Court were, in our view, correct in concluding that, upon the facts as found, Lucas was not a person involved in the contravention of sec. 52 constituted by the false representations and that he was, therefore, not liable in damages under sec. 82. We would only add, lest it be thought that it has escaped our attention, that the appellants may, even if knowledge were not necessary to involvement under para. (a) or under para. (c) as ‘party to’, have encountered difficulty in establishing that Lucas was involved within the meaning of sec. 75B in the contravention constituted by the making of the false representations, having regard to the fact that the representations, albeit made on behalf of the Lucas company, were made by Lucas himself. As Dixon J. observed in Mallan v. Lee (1949) 80 C.L.R. 198, at p. 216:
‘It would be an inversion of the conceptions on which the degrees of offending are founded to make the person actually committing the forbidden acts an accessory to the offence consisting in the vicarious responsibility for his acts.’”
Section 75B of the Trade Practices Act is in similar terms to s 550 of the Fair Work Act in that both sections are concerned with what it means to be “involved in” a contravention.
The liability of an individual as an accessory to a contravention by a body corporate whose liability arises by reason of the conduct of that individual being deemed to be the conduct of the body corporate was considered in the context of the Fair Work Act in Fair Work Ombudsman v Australian Workers’ Union [2017] FCA 528. Albeit in the context of an application for summary judgment, Bromberg J considered whether an individual (Davis) could be an accessory to the liability of the Australian Workers’ Union where the liability of the Union only arose by reason of Davis’ conduct being deemed to be the conduct of the Union pursuant to ss 363 and 793. In declining to strike out such a pleading, his Honour relevantly concluded:
[86] … the only conduct relied upon by the FWO as conduct of the AWU is the conduct of Davis himself. As Davis submitted, relying upon ss 363(1)(b) and 793(1)(a) the ASOC alleges that the AWU is liable for his conduct by reason of his acting as an officer or agent of the AWU within the scope of his actual or apparent authority. In that context, it was contended that the conduct of Davis relied upon by the FWO to establish both the derivative liability of the AWU and the accessorial liability of Davis is one and the same. It was further contended that where Davis’ conduct as primary perpetrator is said to form the basis of the AWU’s derivative liability, there is no cause of action available against Davis for accessorial liability under s 550.
[87] Davis relied on an observation made by Dixon J in Mallan v Lee (1949) 80 CLR 198 at 216 as follows:
It would be an inversion of the conceptions on which the degrees of offending are founded to make the person actually committing the forbidden acts an accessory to the offence consisting in the vicarious responsibility for his acts.
…
[89] … to my mind, the most relevant authority to which I was taken is Hamilton v Whitehead (1988) 166 CLR 121 where the Court (Mason CJ, Wilson and Toohey JJ) clarified the High Court’s reference in Yorke v Lucas to the observations of Dixon J in Mallan. At 129–130, their Honours drew a distinction between a contravention committed by a corporate contravener as a consequence of being vicariously liable for the conduct of its servant (a circumstance in which, following Mallan, the servant is not capable of being an accessory) and a contravention committed by a corporate contravener as a consequence of actions undertaken by a person whose conduct is deemed to be the conduct of the corporation (a circumstance where the person is capable of being an accessory). Although not expressed, the apparent logic which supports that dichotomy is that in the first case the servant is the principal contravener whilst in the second case the principal contravener is the corporation.
[90] Whether the conduct alleged against Davis falls into the first or second category is a contestable proposition which the submissions of the parties did not address. There is, I consider, force in the proposition that neither s 363(1) nor s 793(1) impose vicarious liability on a body corporate or an industrial association. The terms of those provisions operate to deem the conduct of the officer or agent to be the conduct of the body corporate or the industrial association. If that is correct, Davis’ asserted conduct is distinguishable from Mallan, and therefore Davis is capable of being held to have been an accessory to the AWU’s primary contraventions.
Thus contemplated was the liability of an individual as an accessory to the conduct of the Union which arose by reason of the individual’s conduct being deemed to be the conduct of the Union. The observations of Bromberg J, it is respectfully considered, are correct.
As to the latter of the two difficulties, namely whether ss 550 and 793 can expose the CFMEU to liability for a contravention of s 500 of the Fair Work Act, different issues and difficulties arise. Not the least of these difficulties is the fact that s 500 is drafted in terms which expose a “permit holder” to liability if he (inter alia) intentionally hinders or obstructs any person. An argument that neither s 550 alone or in combination with s 793 can expose an entity such as the CFMEU – which cannot be a “permit holder” – to liability cannot be summarily rejected.
The conclusion has previously been reached that the CFMEU may be found to have contravened such a provision: Australian Building and Construction Commissioner v Upton [2017] FCA 847, (2017) 270 IR 190 at 237 to 239. In explaining the route by which that conclusion was reached, and the authorities relied upon, Barker J there said:
[224] In my view, it is, in the end not necessary to consider all the alternative means by which the CFMEU might be held liable for Mr Upton’s contraventions of s 346(a), s 348 and s 500, because I find the CFMEU may be considered liable for Mr Upton’s conduct under s 793 of the [Fair Work Act] in respect of the contraventions of s 346(a) and s 348, and under s 550 and s 793 in respect of the s 500 contravention.
[225] The terms of s 793 have been set out above …
[226] As I have found those contraventions proved, it follows that the CFMEU is taken to have been engaged in that conduct, and so also to have contravened s 346(a) and s 348.
[227] As to the liability of the CFMEU with respect to the s 500 contravention, in the recent decision of Australian Building and Construction Commissioner v Huddy (No 2) [2017] FCA 1088, White J dealt with the submissions of the parties, not dissimilar to those outlined above, concerning the effect of s 793 in conjunction with s 550(2)(c) and the submission that thereby the CFMEU may be taken to have also contravened s 500 where an officer has been found guilty of contravention.
[228] At [32], White J found as follows:
In my opinion, the Represented Respondents’ submission should not be accepted. It overlooks that s 793 operates as a form of deeming provision ‘for the purposes of this Act’. Those purposes include s 500. Section 793(1) requires that the conduct to which it refers be taken to have been engaged in by the body corporate. In this case the conduct of Mr Huddy on 22 October 2013 is to be taken to have been the conduct of the CFMEU. Mr Huddy’s knowledge on 22 October 2013 may be taken to have been the knowledge of the CFMEU.
[229] The judge, at [33], then said that the only question remaining was whether that conduct, with that knowledge, was sufficient to make the CFMEU a person “involved in” the officer’s contravention of s 500. That was to say, the question was whether the CFMEU’s conduct (albeit constituted by its officer’s conduct), with its knowledge of the matters constituting the elements of that contravention of s 500 (albeit constituted by the officer’s own knowledge), meant that it had been knowingly concerned in, or a party to, that contravention.
[230] At [34], White J then stated:
In my opinion, the statutory fictions indicate that this question should be answered in the affirmative. The CFMEU, with its separate legal personality, is deemed to have carried out the same actions as did Mr Huddy on 22 October 2013. Because Mr Huddy was exercising a right of entry pursuant to s 484, his actions constituted a contravention of s 500. As the CFMEU had no right of entry, its actions did not contravene s 500 but, together with its deemed state of mind, indicate that it was knowingly concerned in Mr Huddy’s contravention. So much is apparent from Hamilton v Whitehead (1988) 166 CLR 121 at 128 in which the High Court regarded as ‘plainly right’ the submission that, because the imputed accessory was the actor in the conduct constituting the offences and had knowledge of all the material circumstances, he was “knowingly concerned” in the commission of the offences committed by the company constituted by his conduct.
[231] White J, at [35], agreed with what Charlesworth J said in Australian Building and Construction Commissioner v McDermott (No 2) [2017] FCA 797 at [21], to the effect that it did not matter that the deemed physical acts of the secondary participant are the same acts in fact engaged in by the primary contravener.
[232] White J, at [36], expressly rejected the respondents’ submissions that, by legislative construct, the CFMEU had performed “the forbidden act” (the contravention of s 500). His Honour said that because it does not hold an entry permit, the CFMEU’s conduct cannot amount to an act forbidden by s 500 of the FW Act. However, that, he considered, was not a matter of consequence in the consideration of accessorial liability. A person may be involved as an accessory in a contravention by another even if the contravention is of such a nature that the accessory could not have contravened the provision as a principal, referring to Maroney v The Queen (2003) 216 CLR 31 at [11]; [2003] HCA 63.
[233] His Honour added, at [37], that the case before him was not one in which the conduct of a person constituting a primary contravention by that person or by another whose liability arises from that conduct is then relied upon to establish the liability of the same person as an accessory. Thus, Mallan does not apply in this case.
[234] At [38], White J concluded:
In short, I consider that the statutory fictions established by s 793 mean that the conduct of an official of a body corporate may constitute a primary contravention by the official and accessorial conduct by the body corporate. I am satisfied that the CFMEU should be taken to have contravened s 500 by reason of it having been directly or indirectly knowingly concerned in Mr Huddy’s contravention of s 500.
[235] Understanding that I should apply this reasoning unless I consider it to be plainly wrong, it follows that the CFMEU should be taken to have contravened s 500 by reason of it having been directly or indirectly knowingly concerned in Mr Upton’s contravention of s 500, for the reasons contended for by the Commissioner as set out above.
Concurrence is expressed with the conclusions of both White J in Australian Building and Construction Commissioner v Huddy (No 2) [2017] FCA 1088 and Barker J in Australian Building and Construction Commissioner v Upton [2017] FCA 847, (2017) 270 IR 190.
Thus, by this route, the CFMEU may be taken to have been “involved in” the contravention of a provision such as s 500 (s 550) where the state of mind of an “officer, employee or agent” is attributed to the CFMEU as being the state of mind of the CFMEU itself (s 793(2)).
MATTERS OF EVIDENCE & PLEADING
Before these statutory provisions can be applied to the evidence and the facts found based upon that evidence, it is prudent to first address a number of discrete issues, namely:
·the standard of proof to be applied when resolving the conflicting evidence and applied to the allegations as to contraventions;
·the submission advanced on behalf of the Respondents that there can be no “workplace right” in the absence of a valid Notice of Employee Representational Rights; and
·the submission advanced on behalf of the Respondents in their written Outline of Submissions that to prove acts of coercion against an individual “the applicant must prove that the coercive action by individuals was taken in their personal capacity or on their own behalf”.
Each of these matters should be addressed in turn.
Standard of proof & inferences
It was common ground that contraventions of the Fair Work Act are regarded as “quasi-criminal”: Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (No 3) [2002] FCA 1294 at [53], (2002) ATPR 41-901 at 45,414 per Goldberg J; BHP Coal Pty Ltd v Construction, Forestry, Mining and Energy Union [2013] FCA 1291 at [68] to [69], (2013) 239 IR 363 at 388 to 389 per Collier J; Australian Building and Construction Commissioner v Parker [2017] FCA 564 at [58], (2017) 266 IR 340 at 359 to 360 per Flick J.
It was further common ground that the standard of proof to be applied is that set forth in s 140(2) of the Evidence Act 1995 (Cth), embracing as it does the principle formulated by Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336. When commenting upon the evidence required in a petition for divorce on the ground of adultery under the Marriage Act 1928 (Vic), his Honour there observed (at 362):
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.
See also: (1938) 60 CLR at 347 per Latham CJ. See also: Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Competition and Consumer Commission [2007] FCAFC 132 at [29] to [32]; (2007) 162 FCR 466 at 479 to 480 per Weinberg, Bennett and Rares JJ.
The application of this standard of proof does not, however, preclude inferences from being drawn from primary facts. An inference may thus be drawn even in those cases where the standard of proof is that applicable in criminal cases, namely beyond reasonable doubt: Shepherd v The Queen (1990) 170 CLR 573 at 579 per Dawson J (“Shepherd”). An inference is but a part of the process of fact finding: G v H (1994) 181 CLR 387 at 390. Brennan and McHugh JJ there observed:
An inference is a tentative or final assent to the existence of a fact which the drawer of the inference bases on the existence of some other fact or facts. The drawing of an inference is an exercise of the ordinary powers of human reason in the light of human experience; it is not affected directly by any rule of law. Legal principle may confine the basic facts in order to exclude irrelevancies and, where proof beyond reasonable doubt is required, the legal standard of proof precludes the drawing of an inference for the purpose of determining an issue in litigation when the basic facts are consistent with an innocent inference. But the drawing of an inference is part of the process of fact finding: it has to do with the minor premiss in the syllogism of judgment, not with the major premiss of legal principle.
(Footnote omitted.)
And even in criminal cases an inference may be founded upon either an individual piece of evidence or an accumulation of the evidence in its entirety: Chamberlain v The Queen (No 2) (1984) 153 CLR 521 at 535 (“Chamberlain”). Gibbs CJ and Mason J there observed:
At the end of the trial the jury must consider all the evidence, and in doing so they may find that one piece of evidence resolves their doubts as to another. For example, the jury, considering the evidence of one witness by itself, may doubt whether it is truthful, but other evidence may provide corroboration, and when the jury considers the evidence as a whole they may decide that the witness should be believed. Again, the quality of evidence of identification may be poor, but other evidence may support its correctness; in such a case the jury should not be told to look at the evidence of each witness “separately in, so to speak, a hermetically sealed compartment”; they should consider the accumulation of the evidence…
So much, it was understood, was common ground between the parties.
The need for notification
The “workplace right” relied upon in the present proceeding was the right to “initiate” a “process or proceeding”, namely the right to initiate the process of negotiating a new enterprise agreement.
This entitlement is that conferred by s 172(2)(a) of the Fair Work Act. That provision, albeit a provision previously set forth, provides in relevant part as follows:
An employer … may make an enterprise agreement … with the employees who are employed at the time the agreement is made and who will be covered by the agreement …
Section 173(1) requires an employer who wishes to make an enterprise agreement to “take all reasonable steps to give notice of the right to be represented … to each employee who … will be covered by the agreement”. Section 174 thereafter sets forth the “[c]ontent and form of notice of employee representational rights”.
In reliance upon that “workplace right”, the Commissioner proceeds to allege contraventions of ss 340 and 343 of the Fair Work Act.
A preliminary objection raised on behalf of the Respondents to any liability being founded under either provision is that there can be no such “workplace right” in the absence of a valid Notice of Employee Representational Rights having been issued under s 173. This was the issue sought to be raised for resolution by the Interlocutory Application filed on 13 December 2016.
Based on the pleadings, the Respondents contend that:
·while a Notice was issued to Conbuild employees, the Notice which was issued was “invalid”; and
·no Notice was issued to BKH Contractors or Ultrabuild employees.
The Respondents submitted that the Notice issued to Conbuild employees was invalid because “[t]he [Amended Statement of Claim] does not plead that the NERR was issued to all employees of Conbuild as required, within 14 days of the notification time” and because the Notice “includes the letterhead of the employer and has taken on the character of an employer’s document”.
A separate factual question arises as to whether Notices of Employee Representational Rights were issued and when and by which entities.
Irrespective of:
·whether any defect in a notice that has in fact been issued would render a notice “invalid”; and
·whether the issue of a valid Notice is a precondition to the power of the Fair Work Commission to approve an enterprise agreement (cf. Peabody Moorvale Pty Ltd v Construction, Forestry, Mining and Energy Union [2014] FWCFB 2042 at [45], (2014) 242 IR 210 at 223)
it is concluded that:
·the issue of a valid notice is not a precondition to the right to “initiate, or participate in, a process or proceeding under a workplace law or workplace instrument” for the purposes of s 341(1)(b) of the Fair Work Act.
Section 341(1)(b), it has been held, is not “dependent on the existence of an entitlement” but rather depends upon a “person’s proposal to initiate a process or proceeding under a workplace law”: Tattsbet [2015] FCAFC 62 at [107], (2015) 233 FCR 46 at 73 per Jessup J (Allsop CJ and White J agreeing). Nor is the existence of a “workplace right” limited to “proposals to initiate processes or proceedings which would lead to the upholding of the right or entitlement sought to be vindicated”: Tattsbet [2015] FCAFC 62 at [107], (2015) 233 FCR at 73 per Jessup J (Allsop CJ and White J agreeing). That is, some invalidity in the initiation of the process which may later emerge does not deny the existence of a “workplace right”.
Although ss 173 and 174 provide that a notice “must” be given and “must” contain prescribed information, there is no express or implied legislative requirement that any invalidity in the giving of the notice or the notice itself denies the existence of the “workplace right” to “initiate” a process whereby agreement is sought to an enterprise agreement.
There is no question but that BKH Contractors, Conbuild and Ultrabuild were seeking to or proposing to initiate a process whereby a new enterprise agreement could be voted upon. The fact that such notice was given by Wexdek Formwork Pty Ltd by way of a notice under the letterhead of the “BKH Group” could not, in particular, found an argument that those companies were therefore not seeking to initiate a process of bargaining on a new enterprise agreement.
The preliminary objection raised on behalf of the Respondents founded upon any failure to give notice or that any notice given was invalid is thus rejected.
Coercive conduct & individuals acting in a personal capacity
This submission advanced in the Respondents’ written Outline of Submissions is that to prove acts of coercion by an individual “the applicant must prove that the coercive action by individuals was taken in their personal capacity or on their own behalf”. In advancing this submission reliance was placed upon Laing v Construction, Forestry, Mining and Energy Union (No 2) [2006] FCA 750 at [22] to [37], (2006) 155 IR 244 at 249 to 254 per Ryan J. In that case it was alleged that S J Higgins had threatened W M Loud that a contract would be cancelled if Loud did not make a certified agreement with the CFMEU. One of the issues to be resolved was whether an individual respondent (Mr Sheedy), who was an employee and manager of S J Higgins, had made a threat with an intent to coerce.
But reliance upon Laing, with respect, is misplaced for at least one of either of two reasons.
First, Laing is no authority for such a proposition as that now advanced. Laing was very much a case which, with respect to Mr Sheedy, turned upon the pleadings. The pleading as against Mr Sheedy was that when he:
engaged in the conduct pleaded in paragraphs 40 and 45 above, he did so with the intent to coerce W.M. Loud to agree to make the first proscribed agreement, alternatively the second proscribed agreement, alternatively the proscribed variation.
When reference was made to paras 40 and 45 there was no conduct pleaded against Mr Sheedy. In such circumstances, Ryan J reviewed the pleadings and some of the authorities and concluded (at 253):
[35] Those passages make quite clear that central to the personal liability of the individual officers was their actual involvement in the offending industrial action including, as his Honour seems to have inferred, by encouraging the employees of Premier Coal to go on strike and thereby procuring breaches of their respective contracts of employment. By contrast, as I have endeavoured to explain in the earlier reasons and above, there is no allegation in the applicants’ pleadings of any fact from which it could be inferred that Sheedy had threatened conduct in which he personally would engage, as for example, by procuring a breach by S.J. Higgins of its existing contract with W.M. Loud.
On the facts of the present case, the pleading (for example against Mr Taylor) was that on 5 June 2014 Mr Taylor had said words to the effect: “If you don’t sign the new EBA we will pick one of you and smash your jobs so the rest of you know what is coming”. The reference to “we” is clearly a reference to both Mr Taylor and the CFMEU.
Second, the statutory provision under consideration by Ryan J was expressed in different terms to the current s 343 of the Fair Work Act. The provision being considered by Ryan J was relevantly confined to proscribing a person from taking or threatening to take industrial action or other action. Section 343 is expressed more broadly and now includes threatening to organise action against another person.
Laing, with respect, is no authority for the general proposition sought to be advanced on behalf of the Respondents.
THE PROPOSED EBA & THE CFMEU CAMPAIGN
An understanding as to the facts giving rise to the contraventions alleged by the Commissioner in respect to the conduct of the Respondents in June 2014 and thereafter at the Rhodes Site and the Wolli Creek Site in March 2015 can only be fully gleaned against:
·an understanding of the differences between the enterprise agreement being proposed by the CFMEU and that being proposed by BKH; and
·the campaign being pursued by the CFMEU to secure the reintroduction of site allowances, which involved ensuring that its own proposed enterprise agreement was accepted.
Viewed in context, the Commissioner maintains that the facts giving rise to the contraventions are consistent with the pursuit by the CFMEU of its campaign by targeting BKH.
This context requires a brief overview of the differences between the competing agreements and the CFMEU campaign.
The differences between the competing enterprise agreements
The enterprise agreement which was in force prior to June 2014 was the Wexdek Formwork Pty Limited t/as BKH Contractors/CFMEU Collective Agreement 2011–2014. Relevantly for present purposes, that enterprise agreement did not contain any provision in respect to site allowances.
The enterprise agreement being proposed by the CFMEU for the period from 2014 to 2017 did provide for the payment of site allowances. That agreement addressed wage rates and other employment benefits in cl 12. Clause 12.2(ii) provided in part as follows:
Site Allowance
A site allowance shall be paid at the appropriate rate as set out in Appendix C.
Appendix C1 in turn provided in part as follows:
Site Allowance - General
A Site Allowance shall be paid at the appropriate rate per hour for each hour worked to compensate for all special factors and/or disabilities on projects and in lieu of the following [Building and Construction General On-site Award 2010] special rates - confined space, wet work, dirty work, second-hand timber and fumes as follows:
From 1 July 2015 the following shall apply:
Project Value - $million Site Allowance 2.4m – 6.5m $1.95 6.5m – 16.0m $2.15 16.0m – 32.1m $2.40 32.1m – 64.1m $2.80 64.1m – 128.3m $3.35 128.3m – 192.3m $3.45 192.3m – 256.4m $3.55 256.4m – 384.7m $3.65 For projects above $384.7 million, there shall be an increment of 10 cents per additional $100m or part thereof
The enterprise agreement which was ultimately approved by the Fair Work Commission came into operation from 10 July 2015 and had a nominal expiry date of 30 June 2017. Clause 12 of that agreement addressed wage rates and other employment benefits. Clause 12.2(ii) addressed the payment of site allowances and provided as follows:
Site Allowance
A site allowance shall be paid at the appropriate rate as set out in Appendix C.
It is further agreed by the Parties that Site Allowance will not be payable on the following current projects (as at 18 March 2015):
Leightons 177 Pacific Highway North Sydney NSW 2060
Exhibition Centre DHL Lend Lease Gate 3, Darling Drive Haymarket NSW 2000Four Points Hotel Multiplex 161 Sussex Street Sydney NSW 2000
If the Company undertakes any off site work the applicability of these allowances may be reviewed by agreement of the parties. Any agreed variation must be recorded in correspondence by the parties to this Agreement. This allowance must be in lieu of special rates and multi-storey allowance as contained in the [Building and Construction General On-site Award 2010].
Of particular relevance is the fact that the agreement as approved by the Commission:
·did in fact provide for the payment of site allowances; but that
·clause 12.2(ii) provided that the site allowance was not to be applied to the sites identified.
The CFMEU campaign
The commitment on the part of the CFMEU to securing the payment of site allowances to workers was not put in issue.
Nor could it have been.
The official journal of the CFMEU (Construction & General Division) NSW Branch, UNITY, thus stated (in part) in its December 2014 edition as follows:
The March 2015 publication of UNITY also contained the following passage:
In the August 2015 edition of UNITY the cover page appeared in part as follows:
Within that edition there was the following article:
Of immediate relevance is the commitment on the part of the CFMEU to secure enterprise agreements which contained (inter alia) a site allowance. Also of relevance is the prominent role played by Mr Razaghi, whose photograph appeared in both the December 2014 and August 2015 editions of UNITY and the references to the prominent role played by (inter alia) Messrs Razaghi and Manna. Mr Manna’s photograph appeared in the December 2014 edition of UNITY.
Against this background, Mr Hanlon also acknowledged the campaign to secure the payment of site allowances and the manner in which that objective was pursued, namely:
·the initial attempts undertaken by the CFMEU to negotiate enterprise agreements with big builders like Lendlease;
·the strategy thereafter to target the smaller builders such as Probuild and Billbergia;
·the strategy thereafter to target the larger supply contractors, such as Boral and DMG; and
·the strategy thereafter to target the specialist subcontractors, such as formworkers, steelfixers and scaffolders.
Mr Hanlon was questioned as to the meetings held by the Executive of the NSW branch of the CFMEU and his cross-examination proceeded in part as follows:
And were those meetings held at the city office, or at the Lidcombe office?—Lidcombe office. The Lidcombe office, to my recollection, back then. Lidcombe office – majority in the Lidcombe office.
And was it one of the roles of the executive to formulate or implement industrial campaigns in New South Wales?—Sometimes. Majority of it’s built up on governance and how the union is run.
Can I suggest to you that one approach to campaigning that was taken by the CFMEU in the years 2014 and ’15 was that you had a strategy whereby you sought to negotiate enterprise agreements, firstly with the big builders, like Lendlease. Would you agree with that?—I wasn’t personally involved in any big negotiations with big builders at the time.
Okay. I’m not asking about your knowledge – about your personal involvement. But you were aware that the industrial strategy of the CFMEU at the time was to first negotiate enterprise agreements with the big builders. Correct?—Possibly. I – I, honestly, can’t recall those conversations now.
All right?—I can’t, honestly – I, honestly, can’t recall conversations like that now, but that possibly could have been used as …
Can I then suggest to you, once you had negotiated enterprise agreements with the big builders you would then target negotiations with some of the smaller scale builders, like Billbergia, Probuild, and the like. That be fair?—Possibly.
And then, can I suggest to you, you would then target enterprise negotiations towards some large supply contractors like Boral, DMG, and the like. Would you agree with that?—Possibly.
And then, could I suggest to you, you would then negotiate enterprise agreements with the subcontractors in specialist areas like form workers, and scaffolders, and steel fixers, and the like. Would you agree with that?—Possibly. The – possibly. Possibly. I – I can’t recall the exact conversation that you’re talking about now.
All right. I’m just asking you about the industrial strategy of the CFMEU at the time, and you were a member of the executive of the New South Wales branch, Mr Hanlon?—That’s correct.
You seriously can’t recall what the strategy of the CFMEU was at the time, only a matter of two years ago?—No. What I can – what I’m saying is, is that I agreed with you, to a certain extent, that that possibly could have been used as the industrial campaign, it could have possibly been what the result was, but I wasn’t involved at that time. At that time, two years ago, I wasn’t involved in a lot of those campaigns. I was extremely short staffed. I was working out back end of western Sydney and looking after some regional work.
Notwithstanding the equivocal answers provided by Mr Hanlon, it is accepted that the campaign being pursued by the CFMEU was substantially as was being put to Mr Hanlon. He was then questioned more specifically about site allowances as follows:
Can I put to you that one specific campaign that was on foot during 2014 and ’15 was a specific campaign to demand that subcontractors reintroduce and pay site allowances. Correct?—There was a site allowance campaign. Correct.
And you were involved in that campaign. Correct?—No. Again, I – I was working – I wasn’t working around the major end of town, so I physically wasn’t involved in that campaign. No.
You were aware of the campaign, weren’t you?—I was aware.
Right. And, you say, you weren’t involved in the campaign at all?—I wasn’t physically involved in any negotiations with any major builders, or anything, in the result of that work for those allowances. No.
The same criticism as was directed by the Full Court in Bragdon to the finding made by the primary Judge may equally be directed to the manner of pleading and declaratory relief sought in the present proceeding. Section 494(1) is expressed simply in terms of a prohibition – namely, that an “official … must not exercise a State or Territory OHS right unless the official is a permit holder”.
Notwithstanding the manner of pleading and the declaratory relief sought, it is concluded that the decision in Bragdon is no impediment to a conclusion being reached (and declaratory relief being granted) that Mr Collier on both 11 and 12 March 2015 contravened s 494(1) by “exercising, or seeking to exercise” a right whilst not being a permit holder and that the CFMEU was involved in those contraventions.
Contraventions of s 500: Hindering or obstructing on 11 March 2015
Section 500 of the Fair Work Act prohibits a permit holder, when exercising or seeking to exercise rights, from intentionally hindering or obstructing any person or otherwise acting in an improper manner.
Contraventions of s 500 of the Fair Work Act are alleged against:
·Mr Razaghi (para [103(g)]);
·Mr Garvey (para [105(g)]); and
·Mr Manna (para [106(g)]).
These contraventions focus on the events on 11 March 2015 when each entered the Rhodes Site.
As against Messrs Razaghi and Manna, it is alleged that each entered the Site “with the intention and/or effect of hindering or obstructing each of BKH, Conbuild and Ultrabuild … and/or Holcim … and/or Billbergia” (para [102]). It may be noted at the outset that it is sufficient if contravening conduct is proven against BKH – the allegation, as pleaded, is expressed in the alternative.
As against Mr Garvey, it is alleged that he entered the Site and “acted in an improper manner” (at [102A]).
Para [106A] alleges that “by reason of s550 of the [Fair Work Act], the CFMEU was ‘involved in’ the contraventions of s500 of the [Fair Work Act] by each of Razaghi, Garvey and Manna”. The Particulars provided in elaboration as to the manner in which this attribution of involvement on the part of the CFMEU is sought to be made out separately contend that:
·in respect to Mr Razaghi, “one or more of Manna, Collier, Rigby or Garvey knew that by his conduct, Razaghi was exercising or seeking to exercise a right of entry … with the intention of hindering or obstructing another person or otherwise acting in an improper manner” and that their “conduct and the knowledge of at least one of them is attributed to the CFMEU by reason of s793 of the [Fair Work Act], making the CFMEU ‘involved in’ the contravention by Razaghi”;
·in respect of Mr Manna a like allegation is advanced as is advanced against Mr Razaghi;
·in respect to Mr Garvey, “either of Manna or Razaghi knew that by his conduct, Garvey was exercising or seeking to exercise a right of entry … and acting in an improper manner” and that their “conduct and the knowledge of at least one of them is attributed to the CFMEU by reason of s793 of the [Fair Work Act], making the CFMEU ‘involved in’ the contravention by Garvey”; and
·alternatively, “in circumstances where Razaghi, Garvey and Manna were exercising or seeking to exercise a right of entry … at the Rhodes Site and, in the case of Razaghi and Manna, with the intention of hindering or obstructing another person or otherwise acting in an improper manner; and in the case of Garvey, acting in an improper manner, the ordinary and natural inference is that each or all of them was requested or directed to attend the Rhodes Site by an unknown official to exercise or to seek to exercise a right of entry … with that intention or purpose” and that “[t]he conduct and the knowledge of the unknown official is attributed to the CFMEU by reason of s793 of the [Fair Work Act], making the CFMEU ‘involved in’ the contravention by Razaghi, Garvey and Manna”.
Mr Garvey has admitted a contravention of s 500. But the contraventions of s 500 by Messrs Razaghi and Manna remain to be resolved.
It is concluded that both Messrs Razaghi and Manna contravened s 500 of the Fair Work Act on 11 March 2015.
Their conduct on that day, of course, cannot be divorced from the events immediately prior to that date, including:
·the voting down of the CFMEU’s proposed enterprise agreement two weeks earlier; and
·the role played by both Messrs Razaghi and Manna as recorded in the December 2014, March and August 2015 editions of UNITY in the campaign to secure an enterprise agreement which contained a site allowance.
Nor can their conduct be divorced from the fact that:
·access to the Rhodes Site was being blocked by the two CFMEU cars parked across the driveway; and
·a considerable number of senior CFMEU persons were in attendance at a building site not normally within the geographical area for which any of those persons had immediate responsibility.
But, even confined to the facts that occurred on 11 March 2015 and by reference to their own conduct, the contraventions of s 500 have been made out. When seeking to enter the Rhodes Site, each was “exercising, or seeking to exercise” rights of entry as permit holders. Hence their purported reliance upon safety concerns. It has been further concluded that:
·when seeking entry to the Rhodes Site on 11 March 2015 neither Mr Razaghi nor Mr Manna had any genuine concern as to safety – the information that had been communicated to Mr Razaghi “[a] day or two prior” to 11 March 2015 by the unidentified worker being manifestly inadequate to form any reasonable grounds for believing that there was a genuine concern as to safety let alone a concern as to safety which warranted immediate access being granted to the Site; and
·even after entry had been secured to the Rhodes Site, their object and purpose was to achieve the cessation of the concrete pour and the disruption of the work scheduled for that day – each of the purported concerns as to safety which were raised being immediately addressed, were caused by an agent of the CFMEU or were entirely baseless.
Although Mr Razaghi seems to have taken a more prominent role in the events of that morning, Mr Manna cannot hide behind the conduct of another. Mr Manna himself was also taking an assertive role by (for example) telling Mr Webster that “[i]t’s a safety issue” and that “[i]t’s beyond our control and we have to investigate immediately”. Another example is provided by Mr Manna, once on Site, telling Mr Manuel that the chain which had been provided to secure the hose to the boom was “not good enough” and it “has not been certified”.
There can be no question but that the scheduled concrete pour was disrupted. Such work as had been performed prior to work ceasing on that day had to be jackhammered up and removed.
It is also separately concluded that each had the intention of hindering or obstructing the persons doing the work scheduled for that day, that finding being an inference founded upon (inter alia):
·the insistence on being granted an immediate right of access and not being satisfied by the offer to defer access until 10.30am when a scheduled safety walk was to occur;
·the phone call between Mr Hanlon and Mr Razaghi when Mr Razaghi was told that if he could not do his “fucking job”, Mr Hanlon would get someone (namely Mr Collier) who could – the inference being that the “fucking job” was not to investigate concerns as to safety (whether well founded or not) but rather to cause a cessation of scheduled work;
·the fact that each of the purported safety concerns was immediately addressed only for another purported safety concern to be raised and also immediately addressed; and
·their knowledge of the work being undertaken prior to and upon their entry to the Site.
Cf. Shepherd (1990) 170 CLR at 579; Chamberlain (1984) 153 CLR at 535
In respect to the conduct of Mr Razaghi on 11 March 2015:
·Mr Manna knew that Mr Razaghi was seeking to exercise a right of entry and further knew that Mr Razaghi by his conduct was intentionally setting out to hinder or obstruct the scheduled work – so much follows from their joint entry upon the Site and their joint conduct thereafter, including the concerns being expressed in respect to (as they would have it) safety concerns and the fact that each of those safety concerns was immediately addressed once raised or was entirely baseless.
It is also concluded in respect to the conduct of Mr Razaghi on 11 March 2015 that:
·Mr Collier knew that Mr Razaghi was seeking to exercise a right of entry and further knew that Mr Razaghi by his conduct was intentionally setting out to hinder or obstruct the scheduled work – so much follows from the fact that Mr Collier had been sent out to the Rhodes Site when Mr Razaghi was unable to secure immediate entry and by reference thereafter to the joint conduct on Site.
Like findings are also made in respect to the conduct of Mr Manna – but, in his case, it is of course Messrs Razaghi and Collier who had the requisite knowledge. These findings, it is considered, make out the first two Particulars provided in respect to para [106A] of the Third Further Amended Statement of Claim.
It is also concluded that the third Particular provided in respect to para [106A] has been made out. Mr Garvey has admitted his contravention of s 500. Separate from that admission, however, it is concluded that both Messrs Razaghi and Manna knew that Mr Garvey was “act[ing] in an improper manner” when exercising his right of entry to the Rhodes Site – that knowledge being founded upon the presence of both Mr Razaghi and Mr Manna in the vicinity of the concrete pour when Mr Garvey engaged in his conduct of kicking down the safety rails. Any suggestion that Mr Garvey was simply testing the strength of the safety rails is rejected; his conduct was that of a man intent on creating disruption and generating a safety concern where none previously existed.
It is again concluded that the CFMEU assumes liability for these contraventions of s 500 and for the same reasons as expressed by Barker J in Australian Building and Construction Commissioner v Upton [2017] FCA 847 at [227] to [235], (2017) 270 IR 190 at 237 to 239. Pursuant to ss 550 and 793, the CFMEU was “involved in” the contraventions and is thus “taken to have contravened” s 500 even though the CFMEU could not have itself contravened that section. Section 793(2) operates to attribute the state of mind of the CFMEU official to be the state of mind of the CFMEU itself.
No finding is made in respect to the last Particular provided in respect to para [106A]. As correctly submitted on behalf of the CFMEU, it would be difficult to draw an inference that the knowledge of some unidentified person should be attributed to the CFMEU.
Contraventions of ss 340 & 343: Coercive conduct on 5 June 2014
Following the amendments effected by the Third Further Amended Statement of Claim, contraventions are alleged which focussed on the events occurring on 5 June 2014 and the conduct of:
·Mr Taylor; and
·Mr Kera.
Contraventions are also alleged against:
·the CFMEU.
By reason of his conduct on 5 June 2014, it is alleged that Mr Taylor:
·contravened s 343 of the Fair Work Act (at para [114]);
·contravened s 340 of the Fair Work Act (at para [118]).
It is further pleaded, and pleaded in the alternative, that Mr Taylor by reason of his conduct on 5 June and by reason of s 550 of the Fair Work Act:
·was “involved in” Mr Kera’s contraventions of ss 340 and 343 (at para [121]) and is therefore taken to have contravened those sections.
By reason of his conduct on 5 June 2014, it is alleged that Mr Kera:
·contravened s 343 of the Fair Work Act (at para [115]);
·contravened s 340 of the Fair Work Act (at para [119]).
An earlier allegation that Mr Kera was “involved in” Mr Taylor’s contravention has been abandoned (at para [123]).
It is further pleaded that by reason of the conduct of Messrs Taylor and Kera on 5 June 2014:
·the CFMEU by reason of ss 363 and 793 of the Fair Work Act “engaged in the conduct pleaded” and threatened to take or threatened to organise action with the intent to coerce BKH and/or Conbuild to exercise its workplace right in a particular way and thus contravened s 343 of the Fair Work Act (at paras [111], [112] and [113]).
It is further pleaded, or pleaded in the alternative, that:
·the CFMEU threatened to take adverse action (within the meaning of item 7(c) of s 342(1) of the Fair Work Act) or threatened to organise adverse action against BKH Contractors, Conbuild and/or Ultrabuild because BKH Contractors and/or Conbuild had exercised or not exercised or proposed not to exercise a workplace right and thus the CFMEU contravened s 340 of the Fair Work Act (at paras [116] and [117]).
Each of these contraventions remains to be resolved.
A contravention of s 340 requires proof that a person has taken “adverse action”, that such action is taken “against another person” and done so “because” that other person (for example) proposes to exercise a “workplace right”. And proof of a contravention of s 343 requires proof of an “intent to coerce” (cf. Australian Building and Construction Commissioner v Hall [2017] FCA 274). Proof of an “intent to coerce” requires proof of two elements – first, an intent to exert pressure that in a practical sense will negate choice; and second, that the exertion of the pressure must involve conduct that is unlawful, illegitimate or unconscionable: cf. Seven Network [2001] FCA 456 at [41], (2001) 109 FCR 378 at 388 per Merkel J. An intention to negate choice requires a “high degree of compulsion”: National Tertiary Education Industry Union v Commonwealth of Australia [2002] FCA 441 at [103], (2002) 117 FCR 114 at 143 per Weinberg J.
It is concluded that the contraventions of ss 340 and 343 by Mr Taylor on 5 June 2014 and his “involvement” in the conduct of Mr Kera have been made out.
It is also concluded that the contraventions of ss 340 and 343 by Mr Kera on 5 June 2014 have been made out.
The “workplace right” in both cases was the right of the subcontractors to negotiate their own enterprise agreements and not to yield to the agreement being proposed by the CFMEU. And any invalidity with respect to a Notice of Employee Representational Rights under s 173 of the Fair Work Act, it has been concluded, does not preclude the exercise of the right to initiate negotiations for an enterprise agreement.
For the purposes of s 340, it is concluded that the “adverse action” which was taken by Messrs Taylor and Kera was the threat to take action as an officer or a member of an industrial association which would have the effect of “prejudicing the independent contractor in relation to a contract for services” within the meaning of item 7(c) of s 342(1) of the Fair Work Act. BKH in providing concrete and formwork services fell within the phrase “independent contractor”: cf. Webb Dock Case [2017] FCA 62 at [48] per Jessup J. In the case of Mr Taylor, that action was the threat to “smash” the jobs of one or other of those formwork subcontractors attending the meeting or to “pick one of you and come after you”. A submission advanced on behalf of Mr Taylor that the words spoken, if established, were spoken to the assembled persons and that a “generic threat does not trigger the sections” is rejected. In the case of Mr Kera, the adverse action was the threat conveyed by the text message “Eenie meenie miney mo!” which Mr Kera sent to Mr O’Sullivan. The submission advanced on behalf of Mr Kera that the meaning of the text message is “deeply ambiguous” is rejected. “Adverse action” includes “threatening to take action”: s 342(2). There was, it is concluded, no ambiguity in the threat made by Mr Kera to Mr O’Sullivan.
For the purposes of s 343, the intent to coerce on the part of Mr Taylor is an inference drawn from the context in which the CFMEU were pursuing their campaign to secure agreement to their proposed version of the enterprise agreement, the context in which the words were spoken and the very words themselves. In the case of Mr Kera, his intent to coerce is an inference drawn from the words used, the natural inference being that one of the formworker companies would be chosen and thereafter pursued by the CFMEU until it yielded to the CFMEU’s industrial action. The conduct of both Mr Taylor and Mr Kera was taken with the intent to negate any choice on the part of the formwork company which was to be pursued and “smashed”.
For the purposes of s 343(1), it is thus concluded that both Mr Taylor and Mr Kera “threaten[ed] to … take …. action” against one of the formwork companies and that both did so “with intent to coerce”.
The conclusion that Mr Taylor was “involved in” the contraventions of Mr Kera is an inference founded upon (inter alia) the campaign being mounted by the CFMEU and the common objective being pursued of exerting pressure upon contractors to ensure agreement to the CFMEU’s proposed enterprise agreement. Mr Taylor was “involved in” the contraventions of Mr Kera by reason of being “directly or indirectly, knowingly concerned in or party to the contravention” for the purposes of s 550(2)(c) of the Fair Work Act. Mr Taylor was “implicat[ed] or involve[d]” in Mr Kera’s contraventions such that there was a “practical connection” between Mr Kera and the contraventions: South Jin [2015] FCA 1456 at [227] per White J.
Messrs Taylor and Kera as well as the formwork companies were “persons” for the purposes of ss 340 and 343.
It is also concluded that the CFMEU contravened s 343 in the manner as pleaded in paras [111] to [113] of the Third Further Amended Statement of Claim.
The conduct of both Messrs Taylor and Kera was conduct which was pursued by them as “an officer, employee or agent” of the CFMEU and such conduct was “within the scope of his … actual or apparent authority” for the purposes of s 793(1)(a) of the Fair Work Act. Both the reason why the “adverse action” was taken and the “intent to coerce” on the part of both Messrs Taylor and Kera is taken to be “the state of mind” of the CFMEU: s 793(2).
It is also concluded that the CFMEU contravened s 340 as pleaded in paras [116] and [117].
Contraventions of s 343: Coercive conduct on 11, 16 & 17 March 2015
Following the amendments effected by the Third Further Amended Statement of Claim, contraventions were alleged that:
·“by reason of ss 363 and 793 of the [Fair Work Act], the CFMEU engaged in” identified conduct on 11 March 2015 of Messrs Razaghi, Manna, Collier, Garvey, Rigby, Holl, Hanlon and (in the alternative to the conduct alleged against Messrs Collier and Rigby) the conduct of “an officer, employee or agent of the CFMEU who is unknown to the Applicant but known to the CFMEU” (at paras [133] to [135]) and thereby contravened s 343 of the Fair Work Act (at paras [136] to [137]);
·Mr Collier contravened s 343 of the Fair Work Act by reason of his conduct on 11 March 2015 (at para [140]);
·“by reason of ss 363 and 793 of the [Fair Work Act], the CFMEU engaged in” identified conduct on 16 March 2015 of Messrs Kera, Razaghi, Parker, Collier, Darren Greenfield, Michael Greenfield, Sloane and “officers, employees or agents of the CFMEU who are unknown to the Applicant but known to the CFMEU” (at paras [145] to [147]) and thereby contravened s 343 of the Fair Work Act (at paras [148] to [149]);
·Mr Kera contravened s 343 of the Fair Work Act by reason of his conduct on 16 March 2015 (at para [150]);
·Mr Parker contravened s 343 of the Fair Work Act by reason of his conduct on 16 March 2015 (at para [152]);
·“by reason of ss 363 and 793 of the [Fair Work Act], the CFMEU engaged in” identified conduct on 17 March 2015 of Messrs Kera, Holl, Collier and “officers, employees or agents of the CFMEU who are unknown to the Applicant but known to the CFMEU” (at para [157] to [159]) and thereby contravened s 343 of the Fair Work Act (at paras [160] to [161]); and
·Mr Kera contravened s 343 of the Fair Work Act by reason of his conduct on 17 March 2015 (at para [162]).
Each of these allegations is the subject of admissions, albeit in some cases limited admissions.
CONCLUSIONS
The contraventions which were not the subject of agreement have been resolved.
It has been concluded that those remaining contraventions have been made out.
THE ORDER OF THE COURT IS:
The parties are to bring in Short Minutes of Orders to give effect to these reasons within 14 days.
I certify that the preceding three hundred and forty-one (341) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Flick. Associate:
Dated: 7 February 2018
SCHEDULE OF PARTIES
NSD 361 of 2016 Respondents
Fourth Respondent:
BRENDAL HOLL
Fifth Respondent:
MANSOUR RAZGAHI
Sixth Respondent:
TOM RIGBY
Seventh Respondent:
REBEL HANLON
Eighth Respondent:
BRIAN PARKER
Ninth Respondent:
LUKE COLLIER
Tenth Respondent:
DARREN GREENFIELD
Eleventh Respondent:
MICAHEL GREENFIELD
Twelfth Respondent:
TONY SLOANE
Thirteenth Respondent:
BEN GARVEY
Fourteenth Respondent:
BENITO MANNA
- AGLC
- Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2018] FCA 42
- Case
- [2018] FCA 42
- Decision Date
CaseChat Overview and Summary
The court examined the evidence provided by both parties, including affidavits, witness statements, and expert reports, to determine the validity of the contraventions alleged by the applicant. The legal issues involved interpreting sections of the Fair Work Act, particularly those concerning the making of enterprise agreements, the necessity of providing notice of employee representational rights, and the circumstances under which coercive conduct could be deemed to have occurred. The adequacy of the pleadings and the relevance of the competing enterprise agreements were also scrutinized. The court had to decide whether the defect in or absence of a Notice of Employee Representational Rights could prevent the existence of a "workplace right" to initiate bargaining for a new enterprise agreement, and whether the applicant needed to prove that the coercive conduct was taken in a personal capacity or on behalf of the union.
The court concluded that the remaining contraventions had been substantiated, based on the evidence and statutory provisions reviewed. The court found that the Construction, Forestry, Mining and Energy Union and several of its members had indeed engaged in conduct that contravened the Fair Work Act. The court's reasoning hinged on the interpretation of the statutory requirements and the evidence presented, leading to the conclusion that the alleged contraventions were valid. The court's decision was grounded in a detailed analysis of the legal framework, the evidence, and the specific circumstances of the case.
The final orders of the court required the parties to bring in Short Minutes of Orders to give effect to these reasons within 14 days, as per Rule 39.32 of the Federal Court Rules 2011. This directive ensured that the court's decisions would be formally recorded and implemented, thereby providing a clear resolution to the legal disputes presented in the case.
Orders
Orders of the court
1. The parties are to bring in Short Minutes of Orders to give effect to these reasons within 14 days.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
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Evidence
Evidence Before The Court
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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