Australian Building and Construction Commissioner v Hall

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FEDERAL COURT OF AUSTRALIA

Australian Building and Construction Commissioner v Hall [2018] FCAFC 83

Appeal from: Australian Building and Construction Commissioner v Hall (2017) 269 IR 1; [2017] FCA 274
File number: ACD 25 of 2017
Judges: TRACEY, REEVES AND BROMWICH JJ
Date of judgment: 31 May 2018
Catchwords: INDUSTRIAL LAW – appeal from a judgment of the Federal Court of Australia – where the primary judge had found that the Australian Building and Construction Commissioner had failed to establish that employees of the Construction, Forestry, Mining and Energy Union, and the union itself, had contravened ss 340, 343, 355 of the Fair Work Act 2009 (Cth) – whether the primary judge erred in applying the presumptions in ss 360 and 361 of the Fair Work Act 2009 (Cth)
Legislation:

Evidence Act 1995 (Cth) ss 140, 140(2)

Fair Work Act2009 (Cth) Pt 3-1, ss 340, 340(1)(a), 341, 341(1)(b), 341(2)(e), 342(1) item 7(c), 342(2), 343, 343(1)(a), 343(1)(b), 355, 360, 361, 361(1)(a), 361(1)(b), 361(1), 550

Workplace Relations Act 1996 (Cth) s 298V

Cases cited:

Australian Building and Construction Commissioner v Hall (2017) 269 IR 1; [2017] FCA 274

Banque Commerciale S.A., En Liquidation v Akhil Holdings Limited (1990) 169 CLR 279

Board of Bendigo Regional Institute of Technical and Further Education v Barclay(No 1) (2012) 248 CLR 500; [2012] HCA 32

Construction, Forestry, Mining and Energy Union v Anglo Coal (Dawson Services) Pty Ltd (2015) 238 FCR 273; [2015] FCAFC 157

Construction, Forestry, Mining and Energy Union v Endeavour Coal Pty Ltd (2015) 231 FCR 150; [2015] FCAFC 76

Construction, Forestry, Mining and Energy Union v McCorkell Constructions Pty Ltd (No 2) (2013) 232 IR 290; [2013] FCA 446

Dare v Pulham (1982) 148 CLR 658

Davids Distribution Pty Ltd v National Union of  Workers (1999) 91 FCR 463; [1999] FCA 1108

Esso Australia Pty Ltd v Australian Workers’ Union (2016) 245 FCR 39; [2016] FCAFC 72

Esso Australia Pty Ltd v Australian Workers’ Union (2017) 350 ALR 404; [2017] HCA 54

Gallagher v Cendak [1988] VR 731

Kernel Holdings Pty Ltd v Rothmans of Pall Mall (Australia) Pty Ltd (1991) 217 ALR 171; [1991] FCA 557

Milardovic v Vemco Services Pty Ltd(Administrators Appointed) [2016] FCA 19

RailPro Services Pty Ltd v Flavel (2015) 242 FCR 424; [2015] FCA 504

Tattsbet Ltd v Morrow (2015) 233 FCR 46; [2015] FCAFC 62
Date of hearing: 31 July, 1 and 2 August 2017
Registry: Australian Capital Territory
Division: Fair Work Division
National Practice Area: Employment & Industrial Relations
Category: Catchwords
Number of paragraphs: 128
Counsel for the Appellant: Ms K Eastman SC with Mr M Seck
Solicitor for the Appellant: Maddocks
Counsel for the Respondents: Mr H Borenstein QC with Mr Y Bakri
Solicitor for the Respondents: Slater & Gordon

ORDERS

ACD 25 of 2017
BETWEEN:

AUSTRALIAN BUILDING AND CONSTRUCTION COMMISSIONER

Appellant
AND:

DEAN HALL

First Respondent

KENNETH MILLER

Second Respondent

ZACHARY SMITH (and others named in the Schedule)

Third Respondent

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Details
Case
[2018] FCAFC 83
Decision Date

CaseChat Overview and Summary

The Australian Building and Construction Commissioner (Commissioner) sought to appeal a decision of the primary judge in the Federal Court of Australia, who had found that the Commissioner had failed to establish that employees of the Construction, Forestry, Mining and Energy Union, and the union itself, had contravened sections 340, 343 and 355 of the Fair Work Act 2009 (Cth). The Commissioner argued that the primary judge had erred in applying the presumptions in sections 360 and 361 of the Fair Work Act. The Commissioner contended that the primary judge had failed to consider the entirety of the evidence and had not made any specific findings as to why the respondents had engaged in the blockade. The Commissioner further argued that the primary judge had not considered how the respondents had discharged the onus which they bore under section 361 with respect to the Commissioner’s allegations concerning contravention of section 340.

The court found that the Commissioner had not established that the respondents had contravened sections 343 and 355 of the Fair Work Act. The court found that the Commissioner had not complied with the pre-conditions for the presumption in section 361 to operate in respect of the alleged contraventions of sections 343 and 355. The court found that the primary judge had not erred in applying the presumptions in sections 360 and 361 of the Fair Work Act. The court found that the primary judge had considered the entirety of the evidence and had made findings as to why the respondents had engaged in the blockade.

The appeal was dismissed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Orders

Orders of the court

1. The appeal be dismissed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

The parties submitted a summary of agreed facts to the primary judge. It set out the background to, and basic details of, the events which took place on 11 to 13 June 2014 in the following terms:Background13.From approximately February 2014 to December 2014, construction of the Kim Harvey School of Dance was occurring at 11 Rosevear Place, Dickson, in the Australian Capital Territory (the KHSD Project). The KHSD Project involved the construction of a three-storey single building, including an underground carpark.14.One access gate to the KHSD Project was from Hawdon Place in Dickson (the Hawdon Place Gate), in the Australian Capital Territory (ACT).15.Access from the Hawdon Place Gate required workers and plant to traverse a block of land owned by Hadwon Pty Ltd (ACN 114 173 634) (the Hadwon Land), in order to access the KHSD Project.16.Another access gate to the KHSD Project was on Rosevear Place, Dickson in the ACT. Access through the Rosevear Place gate required workers and plant to traverse a carpark used by Pinocchio Childcare Centre, adjacent to the Rosevear Place Gate.11 June 201417.On 11 June 2014, the Hawdon Place Gate was locked.18.At around 7.30am on 11 June 2014, Hall and O’Mara met with Moore and Tonkovic at the Praga Café in Dickson, ACT (the Praga Café Meeting).19.At the conclusion of the Praga Café Meeting, Hall returned to the KHSD Project.20.ACT Policing arrived at the Hawdon Place Gate to the KHSD Project in or around the morning. ACT Police officers spoke to Hall.12 and 13 June 201421.On 12 and 13 June 2014 Built sought to access the KHSD Project via the Rosevear Place Gate. As well, the primary judge recorded the following areas of common ground between the parties at [15] of his reasons for judgment:•the gates located at Hawdon Place were first blockaded on 11 June 2014;•the gates located at the rear of the carpark to the Pinocchio Early Learning Centre were first blockaded on 12 June 2014; and•WorkSafe ACT visited the Project site and issued a number of Prohibition Notices on 13 June 2014, one of which prohibited the “[u]se of Rosevear Place Dickson to access plant and construction equipment onto and from” the Project Site.The Prohibition Notice issued in respect to the means of accessing the Project Site and issued pursuant to s 195 of the Work Health and Safety Act 2011 (ACT) provided in part as follows: The streets, buildings and other features variously mentioned in the agreed facts and matters of common ground set out above were shown in the following map that the primary judge included in his reasons for judgment at [11]: Paragraph [11] of the reasons also indicated that in this map:Ÿthe Project Site is numbered 28 and labelled the KHSD Project (i.e., the Kim Harvey School of Dance);Ÿthe site numbered 27 is the site of the Pinocchio Early Learning Centre;Ÿimmediately to the north of the site occupied by the Pinocchio Early Learning Centre is the Australian Capital Territory Headquarters of the CFMEU;Ÿthe double triangles depict gates;Ÿthe dotted lines depict temporary fencing; andŸwhat became known as the Rosevear Place Gate is located at the boundary between sites numbered 27 and 28.THE GROUNDS OF APPEAL AND THE NOTICE OF CONTENTION

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

There is insufficient evidence that any such deliberate choice was made by the respondents in this matter. We do not, therefore, accept that the Commissioner was entitled to escape the deficiencies in the ASOC by adopting the approach outlined above.Conclusions on the effect of the deficiencies in the Commissioner’s ASOC That brings us back to the Commissioner’s grounds of appeal. As we have explained above, all of those grounds directly or indirectly concern the operation of the presumption in s 361 of the FWA. For the reasons expressed above, the Commissioner did not comply with either of the two pre-conditions for that presumption to operate in this proceeding with respect to the alleged contraventions of ss 343 and 355. Since the presumption in s 361 did not ever operate in this proceeding in respect of these two alleged contraventions, it is unnecessary to consider whether the primary judge made any errors in his treatment of that presumption with respect to those alleged contraventions or in his assessment of the evidence going to the intention and reason (or reasons) which were pivotal to those contraventions.THE ALLEGED CONTRAVENTIONS OF SECTION 340 The Commissioner’s case under s 340 of the FWA does not suffer from the same deficiencies as those we have found to be fatal to his claims in relation to ss 343 and 355. It is, therefore, necessary to deal with the Commissioner’s grounds of appeal insofar as they relate to the rejection, by the primary judge, of his allegations that Messrs Hall, Miller and Smith and the CFMEU had contravened s 340.The Commissioner’s case at trial The Commissioner’s originating application sought declarations that these respondents had contravened s 340(1)(a) of the FWA. The declarations sought in relation to Mr Hall are set out above at [28]. Similar declarations were sought in respect of the other relevant respondents. In substance they alleged that, on 11, 12 and 13 June 2014 these respondents had engaged in adverse action against Built by blocking access to the construction site. The Blockade was alleged to have been undertaken because Built had not entered and (or alternatively) proposed not to enter into an enterprise agreement with the CFMEU. The relevant “workplace right” was the right to enter into such an agreement. As pleaded in the Commissioner’s ASOC, the alleged “Blockade” was, in fact, three separate blockades on each of 11, 12 and 13 June 2014: see above at [31]. In the ASOC the Commissioner pleaded that Messrs, Hall, Miller and Smith (and the CFMEU) had contravened s 340 of the FWA by taking adverse action (the Blockade) against Built and that the action was taken because Built had not signed the proposed agreement and (or alternatively) proposed not to do so: see above at [32(a)]. In their amended defences these respondents denied that the alleged adverse action had been taken for either of the alleged prohibited reasons. They further pleaded that the blockade on 11 June 2014 occurred only because Hadwon Pty Ltd (“Hadwon”) had revoked Built’s permission to traverse its land in order to access the site and that the permission had been withdrawn because Hadwon was concerned about asbestos being present on its land: see above at [35(d)], [36] and [37]. They further pleaded that the blockades on 12 and 13 June 2014 occurred because of dangers associated with vehicle access along the roadway between the Rosevear Place Gate and the construction site.

Ratio Decidendi

Legal Principle Established

The Commissioner also contended that the primary judge had not made any specific findings as to why Messrs Miller and Smith had engaged in the Blockade on 11, 12 and 13 June 2014 and that there had been no consideration of how either of them had discharged the onus which they bore under s 361 with respect to the Commissioner’s allegations concerning contravention of s 340.Consideration The Commissioner’s submissions raise issues about the structure and content of the primary judge’s reasons. In considering the Commissioner’s submissions it is necessary to have regard to the reasons as a whole and, particularly, to the reasons as they apply to the primary judge’s treatment of the allegations made of contraventions of s 340. In undertaking a review of the reasons it will be necessary to give attention to their structure. An early section of the reasons (paragraphs [17]–[26]) appear under the heading “Onus of proof”. This section starts with references to s 140(2) of the Evidence Act1995 (Cth) and to relevant authorities. His Honour then said (at [20]) that all of the findings of fact which he had made in respect to the Commissioner’s allegations had been made against the s 140(2) standard. His Honour then noted (at [21]) that ss 360 and 361 of the FWA had application to each of the three sections involved in the case, namely, s 340, 343 and 355. He then continued (at [23]–[25]):23Whether a respondent has discharged the “reverse onus of proof” is a question to be resolved at the end of a proceeding and upon consideration of the entirety of the evidence adduced: Construction, Forestry, Mining and Energy Union v Anglo Coal (Dawson Services) Pty Ltd (2015) 238 FCR 273 at [27]. Jessup J there observed in respect to an alleged contravention of s 340:[27]In the context of a provision such as ss 340 and 352, the effect of s 361 is to reverse the legal onus in relation to the reason or reasons for which the adverse action was taken. That is to say, at the end of the trial of fact, the question will be whether the respondent has established, on the civil standard, that the action taken was not taken for a reason, or for reasons which included a reason, proscribed by the legislation. That question is to be answered by reference to all of the evidence which bears upon it. Section 361 does not impose upon the respondent concerned the onus of calling any and every piece of evidence that might arguably influence the answer to the question of reasons or intent. The section is not, in other words, concerned to impose upon the respondent a continuing, unchanging, evidentiary onus with respect to that question.The need to consider the entirety of the evidence, with respect, is hardly surprising. See also: Australian Licensed Aircraft Engineers Association v International Aviation Service Assistance Pty Ltd (2011) 193 FCR 526; 205 IR 392 at [372] per Barker J.24With respect to the separate question as to the standard of proof to be applied when seeking to rebut the presumption, it was common ground between the parties to the present litigation that the standard at that point in the analysis is the balance of probabilities. This approach is consistent with the following observations of Gray J in National Tertiary Education Union v Royal Melbourne Institute of Technology (2013) 234 IR 139 at [20]: [20]… Further, s 360 of the Fair Work Act recognises expressly that action may be taken for more than one reason. What the party seeking to rebut the presumption must do is to establish on the balance of probabilities that the alleged improper reason was not a reason for the taking of action. Generally (although as a matter of logic, not necessarily) the evidence as to the state of mind of the decision-maker or decision-makers will include evidence as to what are claimed to be the actual reasons for the decision. Even if the reasons advanced as actual reasons for the decision are accepted as such, the absence of evidence that there were no additional reasons, or that the actual reasons did not include the alleged proscribed reasons, will usually result in a failure to rebut the presumption.25Third, in order to invoke the reverse onus of proof, an applicant need only establish that “the evidence is consistent with the hypothesis” that a respondent was actuated by a proscribed reason: Bowling at 241. When addressing a predecessor provision to s 361 (namely s 5(4) of the Conciliation and Arbitration Act 1904 (Cth)), Mason J there concluded: Section 5(4) imposed the onus on the appellant of establishing affirmatively that it was not actuated by the reason alleged in the charge. The consequence was that the respondent, in order to succeed, was not bound to adduce evidence that the appellant was actuated by that reason, a matter peculiarly within the knowledge of the appellant. The respondent was entitled to succeed if the evidence was consistent with the hypothesis that the appellant was so actuated and that hypothesis was not displaced by the appellant. To hold that, despite the subsection, there is some requirement that the prosecutor brings evidence of this fact is to make an implication which, in my view, is unwarranted and which is at variance with the plain purpose of the provision in throwing on to the defendant the onus of proving that which lies peculiarly within his own knowledge.See also: National Tertiary Education Union v Royal Melbourne Institute of Technology (2013) 234 IR 139 at [22]‑[23] per Gray J; Construction, Forestry, Mining and Energy Union v Clermont Coal Pty Ltd (2015) 253 IR 166 at [80]-[81] per Reeves J.