Australian Building and Construction Commissioner v Hall
[2017] FCA 274
•22 March 2017
FEDERAL COURT OF AUSTRALIA
Australian Building and Construction Commissioner v Hall [2017] FCA 274
File number: ACD 65 of 2015 Judge: FLICK J Date of judgment: 22 March 2017 Catchwords: INDUSTRIAL LAW – the taking of adverse action – the exercise of a workplace right
INDUSTRIAL LAW – intent to coerce – negation of choice
INDUSTRIAL LAW – accessorial liability – vicarious liability of Union
INDUSTRIAL LAW – Briginshaw standard of proof – reverse onus of proof – reverse onus on balance of probabilities
EVIDENCE – arrangement with prosecutor in criminal case to co-operate with Director – reliability of evidence – unreliability of reliance upon demeanour of a witness
Legislation: Conciliation and Arbitration Act 1904 (Cth) s 5(4)
Evidence Act 1995 (Cth) ss 91, 191, 140, 164
Fair Work (Building Industry) Act 2012 (Cth) s 4
Fair Work Act2009 (Cth) ss 12, 340, 341, 342(1), 343, 346, 348, 355, 360, 361, 362, 550, 793
Workplace Relations Act1996 (Cth) ss 170NC, 298K(1)
Work Health and Safety Act2011 (ACT) s 195
Cases cited: Ansett Transport Industries (Operations) Pty Ltd v Australian Federation of Air Pilots [1991] 1 VR 637
Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (No 3) [2002] FCA 1294, (2002) ATPR ¶41-901
Australian Licensed Aircraft Engineers Association v International Aviation Service Assistance Pty Ltd [2011] FCA 333, (2011) 193 FCR 526
Australian Meat Industry Employees’ Union v Belandra Pty Ltd [2003] FCA 910, (2003) 126 IR 165
Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Visy Packaging Pty Ltd (No 3) [2013] FCA 525, (2013) 216 FCR 70
BHP Coal Pty Ltd v Construction, Forestry, Mining and Energy Union [2013] FCA 1291, (2013) 239 IR 363
Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32, (2012) 248 CLR 500
Briginshaw v Briginshaw (1938) 60 CLR 336
Browne v Dunn (1893) 6 R 67
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Competition and Consumer Commission [2007] FCAFC 132, (2007) 162 FCR 466
Community and Public Sector Union v Telstra Corporation Ltd [2001] FCA 267, (2001) 107 FCR 93
Construction, Forestry, Mining and Energy Union v Anglo Coal (Dawson Services) Pty Ltd [2015] FCAFC 157, (2015) 238 FCR 273
Construction Forestry Mining and Energy Union v Anglo Coal (Capcoal Management) Pty Ltd [2016] FCA 1582
Construction, Forestry, Mining and Energy Union v Clermont Coal Pty Ltd [2015] FCA 1014, (2015) 253 IR 166
Craig v Silverbrook [2013] NSWSC 1687
Darlaston v Parker [2010] FCA 771, (2010) 189 FCR 1
Director, Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2015] FCA 1125, (2015) 254 IR 200
Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union (No 2) [2015] FCA 1462
Esso Australia Pty Ltd v The Australian Workers’ Union [2016] FCAFC 72, (2016) 258 IR 396
Fair Work Ombudsman v Maritime Union of Australia [2014] FCA 440, (2014) 243 IR 312
Fox v Percy [2003] HCA 22, (2003) 214 CLR 118
General Motors-Holden’s Pty Ltd v Bowling (1976) 51 ALJR 235
Giorgianni v The Queen (1984) 156 CLR 473
Hanley v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2000] FCA 1188, (2000) 100 FCR 530
Jenkins v The Queen [2004] HCA 57, (2004) 79 ALJR 252
Jones v Dunkel (1959) 101 CLR 298
Kennewell v MG & CG Atkins [2015] FCA 716
Liquor Hospitality and Miscellaneous Union v Arnotts Biscuits Ltd [2010] FCA 770, (2010) 188 FCR 221
National Tertiary Education Industry Union v Commonwealth of Australia [2002] FCA 441, (2002) 117 FCR 114
National Tertiary Education Union v Royal Melbourne Institute of Technology [2013] FCA 451, (2013) 234 IR 139
Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (No 3) (1998) 195 CLR 1
Port Kembla Coal Terminal Ltd v Construction, Forestry, Mining and Energy Union [2016] FCAFC 99
Qantas Airways Ltd v Australian Licensed Aircraft Engineers Association [2012] FCAFC 63, (2012) 202 FCR 244
R v Kivalu [2016] ACTSC 138
R v MG [2016] NSWCCA 304
RailPro Services Pty Ltd v Flavel [2015] FCA 504
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
Tsilibakis v Transfield Services (Australia) Pty Ltd [2015] FCA 740
Victoria v Construction, Forestry, Mining and Energy Union [2013] FCAFC 160, (2013) 218 FCR 172
Victoria (Office of Public Prosecutions) v Grant [2014] FCAFC 184, (2014) 246 IR 441
Wroughton v Catholic Education Office Diocese of Parramatta [2015] FCA 1236
Date of hearing: 13, 14, 15, 16 September 2016 and 15 November 2016 Registry: Australian Capital Territory Division: Fair Work Division National Practice Area: Employment & Industrial Relations Category: Catchwords Number of paragraphs: 212 Counsel for the Applicant: Ms K Eastman SC with Mr M Rennie Solicitor for the Applicant: Clayton Utz Counsel for the Respondents: Mr H Borenstein QC with Mr Y Bakri Solicitor for the Respondents: Slater & Gordon Lawyers ORDERS
ACD 65 of 2015 BETWEEN: AUSTRALIAN BUILDING AND CONSTRUCTION COMMISSIONER (FORMERLY DIRECTOR OF THE FAIR WORK BUILDING INDUSTRY INSPECTORATE)
Applicant
AND: DEAN HALL
First Respondent
KENNETH MILLER
Second Respondent
ZACHARY SMITH (and others named in the Schedule)
Third Respondent
JUDGE:
FLICK J
DATE OF ORDER:
22 MARCH 2017
THE COURT ORDERS THAT:
1.The parties are to bring in Short Minutes of Orders to give effect to these reasons within fourteen days.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
In June 2016 the Director of the Fair Work Building Industry Inspectorate (as it then was) (the “Director”) commenced a proceeding in this Court against Mr Dean Hall and others. The Director alleges that the Respondents contravened various provisions of the Fair Work Act2009 (Cth) (the “Fair Work Act”).
The events which the Director alleges gave rise to the contraventions, in very summary form, centred upon what was said to be a “Blockade” of a building site between 11 and 13 June 2014 at Dickson, in the Australian Capital Territory. The head contractor on site was Built Pty Ltd (“Built”).
A Statement of Agreed Facts records that the First Respondent is the Secretary and an employee of the Ninth Respondent, the Construction, Forestry, Mining and Energy Union (the “CFMEU”). The Statement of Agreed Facts also records that the Fourth Respondent, Mr Jason O’Mara, is the Assistant Secretary and an employee of the CFMEU. It is also agreed that the Second, Third, Sixth and Seventh Respondents (Messrs Kenneth Miller, Zachary Smith, Garry Hamilton and Johnny Lomax respectively) were at the time of the events in June 2014, and remain, organisers and employees of the CFMEU. The Fifth and Eighth Respondents (Messrs Kivalu and Vitler) were, but no longer are, organisers and employees of the CFMEU. Messrs Kivalu and Vitler were officials, and therefore officers of the CFMEU, within the meaning of ss 12 and 342(1) of the Fair Work Act. As at June 2014, each of the individual Respondents was a “building industry participant” within the meaning of s 4 of the Fair Work (Building Industry) Act 2012 (Cth).
The Director seeks declaratory relief and orders for the payment of pecuniary penalties for contraventions of ss 340, 343 and 355 of the Fair Work Act. Accessorial liability is sought to be imposed pursuant to s 550 of that Act.
The Director was represented by Senior and Junior Counsel. All Respondents, other than the Fifth Respondent (Mr Kivalu), were also represented by Senior and Junior Counsel. Mr Kivalu took no part in the proceeding other than to give evidence pursuant to a subpoena. The Respondents, other than Mr Kivalu, have been variously referred to as the CFMEU, the Respondents or the individual respondents.
All Respondents, other than Mr Kivalu, deny the allegations made by the Director. Mr Kivalu filed a Defence on 25 May 2016 admitting to the Director’s allegations.
It is concluded that the Application as made by the Director in large part fails. In so concluding, it is respectfully considered that the Director has failed to discharge the onus of proof required to prove the contraventions.
THE LOCATION OF THE SITE, THE FACTS AS AGREED & THE ONUS OF PROOF
Much turns on the physical location of the Project Site and the means of access to that site.
The evidence in the proceeding comprised:
·the Statement of Agreed Facts, which was admitted pursuant to s 191 of the Evidence Act 1995 (Cth) (the “Evidence Act”);
·affidavit evidence filed on behalf of the Director, being affidavits either sworn or affirmed by Ms Cairns, and Messrs Tonkovic, Nikolic, Walker, Stafford, Moore and Horsham;
·the oral evidence adduced on behalf of the Director, being that of Messrs Moore, Tonkovic, Horsham, Walker, Stafford, Nikolic, Kivalu, Ault and Ms Cairns;
·affidavit evidence filed on behalf of the Respondents, being affidavits either sworn or affirmed by Messrs Vitler, Hall, Hamilton, O’Mara, Brennan, Smith, Miller and Lomax; and
·the oral evidence adduced on behalf of the Respondents, being that of Messrs Hall, O’Mara, Brennan, Vitler, Miller, Lomax, Smith and Hamilton.
Notwithstanding limited agreement between the Director and the Respondents, it was the affidavit evidence which added “meat to the bones” and set forth the factual basis upon which the central issues in dispute between the parties were to be resolved.
The location of the Project Site
The building site comprised the Kim Harvey School of Dance at 11 Rosevear Place in Dickson, ACT (the “Project Site”). One access to the Project Site was a gate on Hawdon Place in Dickson (the “Hawdon Place Gate”), access to which was via a block of land owned by Hadwon Pty Ltd (the “Hadwon Land”). Another access was a gate on Rosevear Place, Dickson (the “Rosevear Place Gate”).
The following map adequately depicts each of these blocks:
On this map:
·the Project Site is numbered 28 and labelled the KHSD Project (i.e., the Kim Harvey School of Dance);
·the site numbered 27 is the site of the Pinocchio Early Learning Centre;
·immediately to the north of the site occupied by the Pinocchio Early Learning Centre is the Australian Capital Territory Headquarters of the CFMEU;
·the double triangles depict gates;
·the dotted lines depict temporary fencing; and
·what became known as the Rosevear Place Gate is located at the boundary between sites numbered 27 and 28.
Initially access to the Project Site was gained via the Hawdon Place Gate, with access across that narrow corridor of land numbered 25, occupied by Hadwon Pty Ltd and at one time the location of the Canberra Tradesman’s Union Club (the “Canberra Tradies’ Club”). Once that access route was blockaded on 11 June 2014, access could potentially have been achieved by Built across the land occupied by the Pinocchio Early Learning Centre through the Rosevear Place Gate. But access via that route was blockaded on 12 and 13 June 2014.
Without access being permitted by means of either the gates at Hawdon Place or Rosevear Place, the Project Site became essentially “landlocked”.
The Statement of Agreed Facts
In addition to setting forth an agreement as to the positions occupied by each of the individual Respondents, the Statement of Agreed Facts conveniently set forth the background to the events as they unfolded in June 2014, as follows (without alteration):
Background
13.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 2014
17.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 2014
21.On 12 and 13 June 2014 Built sought to access the KHSD Project via the Rosevear Place Gate.
It was also common ground that:
·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 Act2011 (ACT) provided in part as follows:
What was not common ground were the reasons for the “Blockade”.
Onus of proof
At least four matters need to be borne in mind when considering the question of who bears the onus of proof when contraventions of the Fair Work Act are alleged.
First, when making findings of fact, due regard must be had to the gravity of the matters alleged: Evidence Act, s 140(2). Section 140 provides as follows:
Civil proceedings - standard of proof
(1)In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2)Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence; and
(b) the nature of the subject-matter of the proceeding; and
(c) the gravity of the matters alleged.
The contraventions alleged by the Director have to take into account the fact that the contraventions alleged are contraventions of civil remedy provisions of the Fair Work Act. They are, accordingly, properly to be 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.
The standard of proof referred to in s 140(2) is a re-statement of the standard of proof referred to by Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336: Liquor Hospitality and Miscellaneous Union v Arnotts Biscuits Ltd [2010] FCA 770 at [13], (2010) 188 FCR 221 at 225 per Logan J. When commenting upon the evidence required in a petition for divorce on the ground of adultery under the Marriage Act 1928 (Vic), Dixon J in Briginshaw 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 336 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; Darlaston v Parker [2010] FCA 771 at [17], (2010) 189 FCR 1 at 6 to 7 per Flick J.
All such findings of fact as have been made in respect to the Director’s allegations as to contraventions have been made against the standard imposed by s 140(2) of the Evidence Act. Findings as to a contravention of the Fair Work Act are not findings lightly to be made.
Second, ss 360 and 361 of the Fair Work Act are directed to those contraventions which require proof that a person takes action “for a particular reason” or “with a particular intent” – as is the case in respect to contraventions of ss 340, 343 and 355. Section 360 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 is the “reverse onus of proof” provision and is 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.
(2) Subsection (1) does not apply in relation to orders for an interim injunction.
When addressing s 346 of the Fair Work Act and the prohibition there contained against the taking of “adverse action” because (inter alia) a person was not a member of an industrial association, in Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32, (2012) 248 CLR 500 French CJ and Crennan J observed in respect to that provision and s 361:
[5] The task of a court in a proceeding alleging a contravention of s 346 is to determine, on the balance of probabilities, why the employer took adverse action against the employee, and to ask whether it was for a prohibited reason or reasons which included a prohibited reason …
Their Honours later continued:
[44] There is no warrant to be derived from the text of the relevant provisions of the Fair Work Act for treating the statutory expression “because“ in s 346, or the statutory presumption in s 361, as requiring only an objective enquiry into a defendant employer’s reason, including any unconscious reason, for taking adverse action. The imposition of the statutory presumption in s 361, and the correlative onus on employers, naturally and ordinarily mean that direct evidence of a decision-maker as to state of mind, intent or purpose will bear upon the question of why adverse action was taken, although the central question remains “why was the adverse action taken?”
[45] This question is one of fact, which must be answered in the light of all the facts established in the proceeding. Generally, it will be extremely difficult to displace the statutory presumption in s 361 if no direct testimony is given by the decision-maker acting on behalf of the employer. Direct evidence of the reason why a decision-maker took adverse action, which may include positive evidence that the action was not taken for a prohibited reason, may be unreliable because of other contradictory evidence given by the decision-maker or because other objective facts are proven which contradict the decision-maker’s evidence. However, direct testimony from the decision-maker which is accepted as reliable is capable of discharging the burden upon an employer even though an employee may be an officer or member of an industrial association and engage in industrial activity.
(References omitted)
See also: Victoria (Office of Public Prosecutions) v Grant [2014] FCAFC 184 at [32], (2014) 246 IR 441 at 447 to 448 per Tracey and Buchanan JJ. Upon proof (for example) that an employee has exercised a “workplace right” and upon proof that “adverse action” has been taken, it is then presumed that the action was taken for the reason alleged unless the employer proves to the contrary: Kennewell v MG & CG Atkins [2015] FCA 716 at [52] per Tracey J; Tsilibakis v Transfield Services (Australia) Pty Ltd [2015] FCA 740 at [14] to [15]. The rationale for s 361 casting the onus in this way is that the facts lie peculiarly within the knowledge of the employer: General Motors-Holden’s Pty Ltd v Bowling (1976) 51 ALJR 235 at 241 per Mason J; RailPro Services Pty Ltd v Flavel [2015] FCA 504 at [23] per Perry J.
Whether 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] FCAFC 157, (2015) 238 FCR 273 at 279. 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] FCA 333 at [372], (2011) 193 FCR 526 at 583 per Barker J.
With 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] FCA 451, (2013) 234 IR 139 at 146:
[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.
Third, 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 (1976) 51 ALJR 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] FCA 451 at [22] to [23], (2013) 234 IR 139 at 147 per Gray J; Construction, Forestry, Mining and Energy Union v Clermont Coal Pty Ltd [2015] FCA 1014 at [80] to [81], (2015) 253 IR 166 at 186 to 187 per Reeves J.
Fourthly, the reverse onus of proof provisions found in s 361 do not apply to claims for accessorial liability under s 550 of the Fair Work Act: Port Kembla Coal Terminal Ltd v Construction, Forestry, Mining and Energy Union [2016] FCAFC 99 at [448] per Rangiah J. See also: Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Visy Packaging Pty Ltd (No 3) [2013] FCA 525 at [241], (2013) 216 FCR 70 at 117 per Murphy J.
THE EVENTS ON 11, 12 & 13 JUNE 2014
In very summary form, the Director alleges that the “Blockade” of the Project Site on 11, 12 and 13 June 2014 was pursued because the CFMEU wanted Built to:
·sign a new Enterprise Bargaining Agreement or to vary an existing New South Wales or Victorian Agreement to include the ACT.
An associated concern relied upon by the Director to be of relevance to the contravention of s 355 of the Fair Work Act was the alleged purpose of exerting pressure upon Built to:
·employ a particular person or to allocate particular duties to a particular person.
Underpinning these allegations is a series of statements sought to be attributed to Mr Hall. Mr Hall denies each of the allegations.
Although the allegations being advanced for resolution intertwined to the extent that the case being advanced on behalf of the Director was sought to be substantiated largely by reference to the context in which words were said and by reference to words attributed to Mr Hall on a number of occasions (with each of these occasions propounding a common theme, and indeed allegations also sought to be supported by other events), the allegations centred upon:
·an “informal meeting” at the CFMEU headquarters in Canberra in “early 2014 sometime”;
·a weekly organisers’ meeting on 3 June 2014, chaired by Mr Hall;
·a meeting on the afternoon of 10 June 2014; and
·a meeting on 11 June 2014 at the Praga Café.
In addition to these events, there were also:
·a series of statements sought to be ascribed to one or other of the individual Respondents.
The Amended Statement of Claim, it should be noted, only relevantly makes allegations in respect to the events on 11 June 2014 and thereafter. But the evidence of Mr Kivalu as to earlier comments sought to be attributed to Mr Hall, presumably, were relied upon as providing the background or the context against which the events of 11, 12 and 13 June 2014 could be assessed.
Central to the events in “early 2014” and on 3 and 10 June 2014 was the evidence of Mr Kivalu. The meeting at the Praga Café was a meeting attended by Messrs Hall and O’Mara on behalf of the CFMEU and Messrs Moore and Tonkovic on behalf of Built. A Construction Manager for Built, Mr Michael Riley, arrived “right at the end of the conversation” and “didn’t say anything”. Although Mr Hall accepts that during the course of that meeting there was discussion about an enterprise agreement, any such discussion that did occur has to be considered against the backdrop of the events immediately preceding that meeting.
Some of those background facts supported the Director’s case; other background facts supported the CFMEU’s case.
It is relevantly concluded that the factual case sought to be advanced on behalf of the Director fails. In reaching that conclusion, it has been concluded that:
·the evidence of Mr Kivalu is subject to such serious reservation that no reliance can be placed upon it; and that
·whether each of the events relied upon by the Director be considered either individually or cumulatively, the Director has failed to discharge the onus of proof imposed upon him – especially bearing in mind the necessary caution mandated by s 140(2) of the Evidence Act and Briginshaw.
It is further concluded that no different factual finding should be made by reason of:
·other statements made by those participating in the “Blockade”, in particular, statements made by Messrs Smith and Miller on 11 and 13 June 2014.
It is also concluded that:
·the CFMEU’s reasons for taking the actions that it did – namely, expressed concern as to safety (initially founded upon concerns relating to asbestos on the site formerly occupied by the Canberra Tradies’ Club and thereafter concerns as to traffic management) should be accepted. The members of the Tradies’ Club, it was explained, were also members of the CFMEU.
The early 2014 events & the 3 June 2014 meeting
The evidence of Mr Kivalu of relevance to the Director’s case started with what he described as an “informal meeting” at the CFMEU headquarters in Canberra “in early 2014 sometime”. Mr Hall came out of his office and said in an open area of the office, in the presence of Messrs Kivalu, Vitler and Smith, words to the effect:
Built are not signing an EBA.
That is all that Mr Kivalu could recall of that event. Mr Hall denied those words having been said.
Mr Kivalu also maintained that he had a meeting with Mr Hall in about May 2014 when (on Mr Kivalu’s account) Mr Hall said words to the effect:
We will not have Built building next door to us and not have an EBA. They will not fucken use our land as … access.
The reference to “our land” was a reference to the site numbered 25, being the land formerly occupied by the Canberra Tradies’ Club. Mr Kivalu also maintained that Mr Hall said words to the following effect:
Access/egress is an issue that we could look at, that’s a start.
Mr Hall was also said to have mentioned asbestos but did not go into any detail. Mr Hall denied having said those words.
The 3 June Meeting, on Mr Kivalu’s account, was a weekly organisers’ meeting held on or about Tuesday 3 June 2014 at 2.00pm. According to Mr Kivalu, Ms Susan Benton attended at that meeting to record the matters discussed but was told by Mr Hall: “don’t record anything”. Mr Hall was said to have chaired the meeting and was said to have told the meeting:
I think we have a problem with Built, they haven’t signed an EBA, and that’s a problem.
He was also said to have told the meeting:
We cannot have a builder building next to us that does not have a relationship with the CFMEU. I’m not going to allow someone building next to us not to have an EBA or use non-EBA companies. Not tolerated.
The reference to “a builder building next to us” was presumably a reference to the proximity of the headquarters of the CFMEU in Canberra and the Project Site. Mr Hall was also said to have told the meeting:
We need to up the ante because Built hasn’t signed the EBA. We will have a meeting to strategise what we are going to do on the day.
In addition to Messrs Kivalu and Hall, Messrs O’Mara, Jennings, Lomax, Vitler, Smith and Miller were also said to have been in attendance.
The events on 10 June 2014
Mr Kivalu’s evidence was also of central importance to the Director’s case in respect to his account of a meeting held at the CFMEU Canberra headquarters on the afternoon before the “Blockade”, namely on 10 June 2014.
On the afternoon of 10 June 2014, Mr Kivalu said that at about 3.00pm there was a “blockade meeting at which the Built project was discussed”. On his account, those attending were him and Messrs Hall, O’Mara, Jennings, Lomax, Vitler, Smith, Miller and Cousins. The meeting was said to have been in Mr Hall’s office and Mr Hall is said to have told those present:
The whole point of the blockade is to get Built to sign an EBA and to show them that we mean business. We need to have a blockade.
Mr Hall is alleged to have continued as follows:
Anthony and Zac, you guys need to go and talk to Built regarding a safety person and we will place a safety delegate with them.
...
You all need to be at the office at 5.30 am. How many blokes are we going to have there? Have we got numbers? Who do we need to come there? I want you guys as organisers to organise our key delegates to ensure they are there also.
Mr Kivalu understood the reference to “you all” was a reference to himself and Messrs Lomax, Miller, Vitler and Smith. Mr Hall was then alleged to have said:
You organise food and water.
Mr Hamilton replied:
OK.
Mr Hall then addressed Mr Vitler and said:
You organise the entrance from the Downer Side. All you guys, you need to be at the school at the front entrance, park your cars across the front entrance. If anyone comes this is a community rally, it’s a safety issue.
Mr Hall was also said to have told the meeting:
Don’t let anyone in … Let the management in, they are ok. Definitely don’t let any subcontractors in.
All of the CFMEU officials present are then alleged by Mr Kivalu to have said:
OK.
Mr Hall then said:
You will use safety to stop the job. It is a safety issue. If anyone asks there is a safety issue on the site we need to rectify and address before we can re-open it. The issue is asbestos. That’s a good one. We will use the asbestos issue to do a safety walk and stop work at this site.
The CFMEU officials were again alleged by Mr Kivalu to have said:
OK.
Mr Hall continued on to say, on Mr Kivalu’s account:
If the builder or anyone else like the Police, FWBC or MBA ask, tell them it is a safety issue. Asbestos is the obvious issue. Once we’re on, have a look at access, egress, fall protection and amenities.
Mr Hall either denied the words attributed to him or had no recollection of having said those words. And, again, the other Respondents said to have been present all denied the account given by Mr Kivalu, or had no recollection of those words having been said.
The unreliability of Mr Kivalu’s evidence
If Mr Kivalu’s account were to be accepted, the case for the Director would significantly be advanced.
His evidence, considered alone, may also be considered to have some semblance of reality. Although the Project Site could not be seen from the CFMEU Canberra headquarters, it was very close by. Any heavy machinery required on site – unless it could gain access via Hawdon Place – would necessarily have to travel down Rosevear Place and right outside the Canberra headquarters.
But Mr Kivalu’s evidence cannot be relied upon.
As the evidence developed, it emerged that:
·Mr Kivalu was facing criminal charges for blackmail at the time and entered into an arrangement with the prosecuting authorities which included an agreement to give evidence on behalf of the Director. Although a matter for the sentencing Magistrate, Mr Kivalu sought to avoid a custodial sentence. As Mr Kivalu accepted in cross-examination, “who wants to go to [gaol]?” and he did not go to gaol “thank God”.
Moreover, Mr Kivalu’s evidence was:
·open to question. There was, for example, no self-evident reason or occasion why in “early 2014 sometime” Mr Hall would suddenly emerge from his office and simply state to those present that “Built are not signing an EBA”; and
·either denied by Mr Hall and each of those other persons said to have been present or not supported by any other witness. Those other witnesses (like Mr Hall) either denying that those words were said or having no recollection of those words having been said.
Moreover, Mr Kivalu’s evidence was not consistent with:
·the evidence (for example) that there was no meeting at 2.00pm on 3 June 2014 – that time being the time of the meeting of the executive;
·the evidence that on 10 June 2014 there was no meeting at 3.00pm, that time being “a 38-hour rostered day off” – as supported by a calendar for 2014 indicating rostered days off, public holidays and the like;
·the evidence that Mr Jennings, who was said by Mr Kivalu to have been in attendance, was overseas at the time – as verified apparently by a stamp in his passport; and
·the evidence that Ms Benton, who was said by Mr Kivalu to have been in attendance, did not attend the meeting.
Such, with respect to Mr Kivalu, is the assessment as to his evidence. But two further points should be expressly made.
First, although reference is repeatedly made in judicial decisions to the “demeanour of the witness” as a reason for either accepting or rejecting evidence, “demeanour” is respectfully considered to be a very uncertain touchstone of reliability. Although it is accepted that a trial judge is entitled to make observations relating to the demeanour of witnesses, it has been observed that “it is a notoriously crude and inaccurate methodology”: Craig v Silverbrook [2013] NSWSC 1687 at [140] per Sackar J. See also: Fox v Percy [2003] HCA 22 at [30] to [31], (2003) 214 CLR 118 at 128 to 129 per Gleeson CJ, Gummow and Kirby JJ. In not accepting Mr Kivalu’s evidence, some reliance has nevertheless been placed upon his “demeanour” and in particular his:
·apparently “dogged” determination to “stick to” his account of the events and not accept reasons that could well be regarded as reasons for questioning his account; and
·apparent unwillingness to agree to the proposition that it was his co-operation with the prosecutors of the blackmail charge that contributed to his not getting a custodial sentence (his response repeatedly being that you would “have to ask my legal team”) and the proposition that it was not a mere “coincidence” that the date of the filing of his defence in the proceeding now before this Court was the same day upon which the criminal proceeding was resolved.
Although in some circumstances it may well be accepted that one party’s witnesses may all seek jointly to deny evidence against their common interest, the denials of the individual Respondents in the present case are accepted.
CFMEU witnesses also denied that it was unacceptable for the Project Site to be in such close proximity to its Canberra headquarters and yet not be bound by an enterprise bargaining agreement. And that was so notwithstanding that Mr Hall accepted that he wanted the CFMEU to have 100% coverage. In other words, Mr Hall did want all construction workers to have the benefit of such an agreement.
Second, in making the finding as to the unreliability of Mr Kivalu’s evidence, express reference should be made to the submissions advanced on behalf of the CFMEU in respect to Jenkins v The Queen [2004] HCA 57, (2004) 79 ALJR 252 and the decision in R v Kivalu [2016] ACTSC 138. In respect to the Jenkins decision, Senior Counsel for the CFMEU placed reliance upon the caution expressed by Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ as to the reliability of the evidence of “an accomplice”. When considering the position of a trial judge and the warnings that should be given to a jury, their Honours there observed:
[30] In the practical application of the rule, it must be observed that what is involved is a warning about the danger of “convicting upon the evidence” of the accomplice, unless it is corroborated. This is not a mere incantation. It must be related to a forensic contest, and its operation in a particular case must be explained to the jury by reference to the evidence and the issues. Those issues will be determined partly by the conduct of trial counsel, and might not emerge in final form until the closing addresses. The rule exists for a reason. That reason is related to the potential unreliability of accomplices, an unreliability thought to be so well known in the experience of courts that judges are required, not merely to point it out to jurors, but to tell them that it would be dangerous to convict upon the evidence of an accomplice unless it is corroborated. The principal source of unreliability, although it may be compounded by the circumstances of a particular case, is what is regarded as the natural tendency of an accomplice to minimise the accomplice’s role in a criminal episode, and to exaggerate the role of others, including the accused. Accomplices are regarded by the law as a notoriously unreliable class of witness, having a special lack of objectivity. The warning to the jury is for the protection of the accused…
In rejecting the CFMEU’s reliance upon these observations, the Director maintained that the law “has now generally been overtaken by statute”, being the Evidence Act, s 164 and that the “circumstances of cases are infinitely various”. Rather than shunning Mr Kivalu’s evidence, the Director urged that consideration should be given “to the extent to which [it] is corroborated by other evidence”. The “caution” urged by Senior Counsel on behalf of the CFMEU is heeded. But the approach urged by the Director has been largely followed – Mr Kivalu’s evidence has been considered both by reference to his evidence standing alone (a consideration which has led to the conclusion that it has been found to be wanting) and considered (and repeatedly re-considered) by reference to such evidence adduced by the Director which corroborates Mr Kivalu’s account. Pursuing either approach, with respect, has led to no different conclusion.
No reliance has been placed upon the decision of the Supreme Court of the Australian Capital Territory in R v Kivalu. No reliance has been placed upon that decision, in particular, to prove “the existence of a fact”. Indeed, to do so would be contrary to s 91 of the Evidence Act. See: Construction Forestry Mining and Energy Union v Anglo Coal (Capcoal Management) Pty Ltd [2016] FCA 1582 at [82] per Katzmann J. That section, as Rothman J in R v MG [2016] NSWCCA 304 has observed, serves to:
[65] … exclude the use in a proceeding of reasons for judgment to prove the existence of a fact in issue in that proceeding. Such an exclusion applies even where the reasons involve an opinion that indirectly affects the assessment of the probability of the existence of the fact: s 55 of the Evidence Act. Moreover, it applies even where the reasons for judgment are otherwise before the Court and/or admissible: s 91(2) of the Evidence Act.
No attempt was made by the Respondents to tender in the present proceeding a copy of the decision of the Supreme Court or its reasons for decision: cf. [2016] NSWCCA 304 at [21] per Meagher JA.
The rejection of this part of the Director’s case which placed reliance upon the evidence of Mr Kivalu nevertheless left open for consideration the prospect (for example) that Mr Hall on 11 June 2014 said words from which the purpose for imposing the “Blockade” could be discerned. The reservations expressed in respect to Mr Kivalu’s evidence should not “poison” any separate analysis of later events. Nor should his evidence be summarily disregarded when considering whether his account – whatever may be the reservations expressed in respect to its own reliability – may nevertheless remain as corroborative of other evidence.
The meeting at the Praga Café – 11 June 2014
There was a level of agreement in respect to the meeting at the Praga Café.
There was at least agreement that:
·the meeting did in fact take place on 11 June 2014. On Mr Moore’s account it started after 8.30am; on Mr Hall’s account it started after 7.15 or 7.30am;
·those in attendance were Messrs Hall and O’Mara on behalf of the CFMEU and Messrs Moore and Tonkovic on behalf of Built (with Mr Michael Riley arriving late); and that
·the topic of an enterprise agreement was raised.
But there was significant disagreement as to:
·the sequence in which topics were discussed; and
·what was said in respect to each topic.
There was also no agreement as to the topic of an “attendant labourer” being raised.
It is sufficient to contrast the accounts given by Messrs Moore and Hall.
On Mr Moore’s account, he tried to contact Mr Hall at approximately 8.30am and the meeting started thereafter. On his account there was the following exchange between himself and Mr Hall:
Hall:Can this conversation be ‘without prejudice’? Is that okay?
Mr Moore understood that what Mr Hall meant by the expression “without prejudice” was that the conversation would be off-the-record. Mr Moore’s account of the conversation continued:
Moore:Fine, but I reserve the right to stop the conversation where I see fit.
Hall:Adam, I’ve got a solution for you.
Moore:What you are doing on my site is illegal.
Hall:You can vary the NSW EBA Agreement to include the ACT or sign the existing agreement.
Moore:Our NSW agreement expires on 30 June.
Hall:Then vary the Victorian agreement.
Moore:Those are both non-options as varying an agreement is essentially a new agreement and that would make the agreement non-compliant with the new Code.
Hall:This has happened before and it’s not non-compliant with the new Code.
The conversation, on Mr Moore’s account, continued as follows:
Hall:The site needs to have an attendant labourer with appropriate skills for identifying unsafe work. We have a guy that you can take on for four weeks. He has a scaffold certificate and rigging certificate. He can sort out your safety issues onsite.
Moore:There is no need to have a fulltime labourer on the job. It’s a five million dollar job, we have our regional safety manager doing regular audits and the site supervisors are administering our safety system on the job.
Hall:That’s bullshit. We’ve seen numerous safety breaches on your site.
Moore:We’ve got a really good safety system and our boys are administering it really well. We’ve got four staff and no need for an attendant labourer.
On Mr Moore’s account, Mr Hall returned to the topic of a proposed enterprise agreement and the conversation continued as follows:
Hall:Varying an agreement does not constitute a new agreement.
Moore:I will make some calls and let you know if I agree with that.
Mr Moore then walked out of the Praga Café and called Messrs Giffin and Wilson concerning the question of whether “varying” an agreement constituted a new agreement. Mr Moore then telephoned Mr Hall and the following conversation occurred:
Moore:Your options are non-options and you are blockading my site illegally. You need to remove the CFMEU members so my guys can get back to work including the subcontractors.
Hall:That’s bullshit, I can show you another agreement that has been varied.
Moore:That’s fine, anything can be varied, but it would still be non-Code compliant based on our interpretation.
The conversation ended abruptly, on the account given by Mr Moore, with Mr Hall hanging up. Mr Moore’s account of the conversation is substantially similar to the account given by Mr Tonkovic.
The contrary account as advanced by Messrs Hall and O’Mara was put by Senior Counsel on behalf of the Respondents (other than Mr Kivalu) to both Messrs Moore and Tonkovic. Mr Moore largely adhered to his own account of what was said and the sequence of it.
The account given by Mr Hall departed in significant respects from that given by Mr Moore. Mr Hall maintained that the meeting at the Praga Café started sometime after 7.15 or 7.30am. But this discrepancy between the time given by Mr Moore and Mr Hall matters not.
Mr Hall’s account of the substance of the conversation was initially set forth in his affidavit. The form in which parts of that account was set forth led to objections being taken and to those parts being rejected but with leave being granted to call further oral evidence. The case largely proceeded upon Mr Hall’s account as given orally in his evidence-in-chief. Given the criticism that is sometimes made in respect to affidavits being a “more prepared” and perhaps “edited” version of a conversation, greater reliance can (in some cases) be placed upon an account given orally – especially when the conversation assumes central importance.
On Mr Hall’s oral account, it was Mr Moore who started off the meeting. His account then proceeded with the following exchange between his Senior Counsel and himself:
... And can you recall, as close as you can to his words, what he said: — He started off saying – it was, “What are you doing? This is illegal. This is illegal” and words along those lines to me.
Okay. And did you respond or someone else respond? — I said we had safety concerns – serious ones – about asbestos.
Okay. And did you say anything else? — I said we needed to deal with it and I didn’t have faith in himself or his company in dealing with it because of my previous —
There was then an objection and the exchange thereafter continued as follows:
Mr Borenstein: And was there any response to that? — He said to me ...
Who’s that? — Mr Moore – words to the effect, “Our company has got a good safety record. I’ve got a good personal safety record. I haven’t had anyone killed on my jobs”.
Right. And what was said after that? — I said, “That’s just pure luck.” Based on my experience on being on construction sites around the territory I said to him, “Your company is one of the worst performing companies in the way that you’re dismissive and I’ve been on to your sites a number of times, pointed out several safety issues and your management are always quite thankful and they say words to the effect to me that, ‘Thank God you’re here because now maybe Adam [Moore] and the rest of the management will do something about the safety concerns’.”
Right. Can you recall what was said next? — Adam said this – he tried to make it about the EBA. He said it’s really ...
Can you try to remember it.…… object.
The witness: Adam said, “Well, let’s – words to the effect – Mr Moore said, “I want to deal with the EBA.”
And what did you say? — I said, “Adam, we have to deal with the serious safety issues of asbestos first. I’m here to talk about that, Adam. I’m not here to talk about the EBA.”
All right. And what happened after that? — He kept on – Adam kept on pressing the issue. He kept on saying, “No, listen, let’s talk about the EBA. I would like to talk about the EBA.”
Okay. And what did you say? — I kept on – well, it was a roundabout conversation. I could keep on going, your Honour. But I kept on saying, “I’m here to talk about safety and I don’t want to talk about the EBA. I do not want it to be confused in that way. I didn’t want any suggestion that us dealing with the serious safety issues on your site is anything to do with your enterprise bargaining agreement negotiations.”
All right. What happened after that was said? — He kept on pressing me. So eventually I said – I want to make it quite clear to both of them ...
Both of who? — …to Adam Moore and Joe Tonkovic – I said to them – and Jason O’Mara – “I want everybody at the table to understand this. If we can’t progress the safety issue, I want to draw a clear line under it now. I want everybody to understand that this is not to be mixed up – do not want to be – or in the future to be accused that this had anything to do with your EBA.” So they – at that point, they all acknowledged that.
What did they say? — I got them to individually acknowledge it.
What did they say? — Like, yes or no – yes, they all nodded and accepted. I made them individually do it.
Okay. And what happened after that? — We talked about options about the EBA.
And can you tell us what the options were? — Well, there were problems with the code which – the proposed code which wouldn’t allow...
Well, can you tell us what was said? — I said to him, “We have options around – we could possibly vary agreements. We’ve done that with other companies.” I gave him an example of another company.
Ms Eastman: I object.
His Honour: What [did] he say?
The Witness: I said to him that there was another company that had – that we’ve done this and it was successful. We believe we could do the same thing. He said – Mr Moore said, to the best of my recollection – he said, “I take that back – I can’t make that decision here. I’ve got to take back to people in Sydney.” And I said, “Well” – at that point – I said, “Adam, is there – you can do that, but is there” – I said to him, “Is there much point negotiating with you if you can’t make any decision? Maybe the people from Sydney should get down here.”
All right. And did he reply to that? — He said he would go back and talk to them.
Okay. And was that the point at which the meeting ended? — Well, I think – I believe that there was further that I said to him, “We need to address the safety issues,” and I explained them to him and he accepted ...
Well ...
Ms Eastman: I object. ….
The Witness: Actually, sorry, I will retract. I said, “You” – I said to him, “We still have to resolve the asbestos issue”, and he acknowledged that.
Mr Borenstein: How did he do that? — By saying yes.
Mr Hall’s account of the conversation is substantially the same as the account given by Mr O’Mara, although there were some differences. Mr Hall, for example, denied that the conversation at the Praga Café started with him asking whether the conversation could be “without prejudice”. Mr O’Mara, on the other hand, accepted that the “meeting started off with Dean saying ‘Can this conversation be without prejudice? Is that okay?’” Also to be taken into account is the fact that Mr O’Mara acknowledged that it would be “fair to say” that he “kn[ew] bits about the meeting, but I can’t give you a start-to-finish”. Notwithstanding that qualification, Mr O’Mara’s account did render support to that provided by Mr Hall.
It will be noted that missing from Mr Hall’s oral account of the conversation at the Praga Café was any reference to the topic of an “attendant labourer”. Paragraphs of Mr Hall’s affidavit which were not rejected included the following:
41.Contrary to Moore’s allegation in paragraph 36 of this affidavit, I did not say the site needs an “attendant labourer”. I have never used that term and don’t know what it means. I also did not say that we had a particular person who could be taken on for four weeks.
42.I also did not say that “we have a guy you can take for four weeks” or “he can sort out your safety issues on site”.
43.I said they should employ someone to look after safety on the site. He said he would look into it. I said we had a list of qualified people we could give him and he said “OK”.
Mr Hall’s denial of any reference being made to an “attendant labourer” was tested in cross-examination as follows:
Now, do you remember in this conversation that it turned to you suggesting that the site needed an “attendant labourer”? — No.
And you’ve been in court, have you not, when witnesses have been asked about that expression? — No.
You haven’t? — No.
You don’t remember any of the witnesses over the past two days being asked about that? — In here?
Mm? — I thought you were talking about me being in the box.
No, I’m talking about in here. No, I’m not asking you about you being in the box. But you have been sitting in court…? — I’ve heard – I’ve heard that term.
… listening to the evidence? — Yes.
All right? — Bits and pieces, yes.
Could you have said rather than “attendant labourer”, but an attending labourer or something of that nature? — No.
Do you remember using those words? — Never.
And you suggested that that they needed to have on site somebody appropriate for identifying unsafe work; is that right? ‑‑‑ I didn’t use those words, no.
One major divergence between the accounts of Messrs Moore and Hall is that (on Mr Hall’s account) he was seeking to address the safety issues first and the enterprise agreement thereafter; on Mr Moore’s account, it was Mr Hall who was seeking to elevate the enterprise agreement as the reason for the “Blockade”. A further major difference is the divergence of evidence as to whether the topic of an “attendant labourer” was raised.
The contrary account as advanced by Messrs Moore and Tonkovic was put to Messrs Hall and O’Mara by Senior Counsel for the Director. There was thus the following exchange, being but one of many, between Mr Hall and his cross-examiner:
And it’s the case, isn’t it, that at no time over these three days did you ever tell anybody from Built that there was an asbestos issue? — That’s wrong.
And in terms of other safety issues, if you used the word safety, you only really used that as a cover up or a sham to achieve what you wished to achieve, and that was that Built would execute an EBA. Isn’t that right? — I don’t understand that question.
Mr Hall’s later rejection of the Director’s case was unequivocal.
The meeting at the Praga Café – a failure to discharge the onus of proof
The factual conclusion that is ultimately reached is that the Director has failed to establish — according to the requisite standard set forth in s 140(2) of the Evidence Act and Briginshaw — that the conversation at the Praga Café was substantially as advanced by Mr Moore, and as supported by Mr Tonkovic. The cross-examination by Senior Counsel for both the Director and the CFMEU of those witnesses advancing a contrary case provided no more than an opportunity for each “side” to deny or not admit the opposing case. Little “fell out”, with respect, in the cross-examination which provided a reason for accepting one account rather than the other.
The conclusion that the Director has failed to discharge his onus of proof does not (accordingly) turn on any consideration of Browne v Dunn (1893) 6 R 67. The conclusion is reached notwithstanding the force of submissions advanced on behalf of the Director that Mr Hall’s account should be rejected or not prevail by reason (inter alia) of the fact that:
·it was Mr Hall (at least on Mr Moore’s account) who called for the meeting to be held; and
·Mr Hall, a person who had previously not taken the carriage of the negotiation with Built for an enterprise agreement, nevertheless came to the meeting with considerable familiarity with the issues presented – the inference being that the meeting was called by Mr Hall so that he could discuss the enterprise agreement.
The Director’s account also gains some further considerable support when viewed against later developments, including:
·the fact of the “Blockade” on 11, 12 and 13 June 2014;
·the anger expressed by Mr Hall when he learnt that Mr Moore had telephoned the police and the attendance of the police on site after the conclusion of the meeting at the Praga Café; and
·the account given by Messrs Smith and Miller of the events of 11 and 13 June 2014.
The Director’s account also gains some support from:
·the acknowledged objective of the CFMEU securing “100% coverage” of enterprise agreements in the Australian Capital Territory.
These are but instances of the sources drawn upon by the Director to support his position; the common element being that any finding of fact necessarily has to take into account the entirety of the evidence and the context in which a particular fact emerges for resolution.
The force of the Director’s submission occasioned considerable reservation before the conclusion was reached that the Director had failed to discharge his onus of proof. In reaching the conclusion that the onus of proof had not been discharged some limited reliance was placed upon:
·the failure to call Mr Riley to give evidence: Jones v Dunkel (1959) 101 CLR 298. Although he arrived late at the meeting at the Praga Café, his account may have been of some assistance as to how the conversation “ended up”.
Reliance is also placed upon (inter alia):
·the fact that if the CFMEU wished to exert pressure upon Built to sign an enterprise agreement, at least one of the points of time to do so would have been prior to granting Built a right of access across the land of the Canberra Tradies’ Club – the grant of that right being agreed to on 7 February 2014.
Consistent with that chronology and consistent with a conclusion that action was not being taken by the CFMEU to exert pressure upon Built to sign an enterprise agreement is the fact that there was apparently some measure of agreement in late December 2013 as to the terms of an enterprise agreement and the ability to accommodate changes proposed by a new Building Code to be introduced in the Australian Capital Territory with effect from July 2014 (as evidenced by an email from Mr Nikolic in December 2013), although divergences seemed to emerge early in the new year in 2014 (as evidence by an email from Mr Nikolic in January 2014);
·the rejection of the Director’s criticism of the evidence of Mr O’Mara and the conclusion that Mr O’Mara’s evidence lends considerable force to – and corroborates – the evidence of Mr Hall; and
·the finding as to the balance of the evidence of the Director also failing to discharge the onus of proof imposed by Briginshaw v Briginshaw.
Greater reliance was also placed on a number of other factors which lent some support for Mr Hall’s account, including the fact that:
·after 12 June 2014 construction at the Project Site apparently continued without any enterprise agreement being signed.
The conclusion that the Director has failed to discharge his onus of proof does not necessarily also involve any further finding having to be made that Mr Hall’s account is to be accepted. But it is nevertheless further concluded that his account of the conversation should be accepted. To some extent this conclusion is founded not only upon those factors already mentioned but also upon:
·the demeanour of Mr Hall when giving evidence, albeit demeanour being accepted as a very uncertain touchstone of reliability.
The Blockade on 11, 12 & 13 June 2014
If factual scrutiny be shifted from the meeting at the Praga Café to the other events that were unfolding on that day, the most significant event was the closure of the Hawdon Place Gate. Those events preceded that meeting and continued thereafter.
It was common ground that the Hawdon Place Gate was blockaded on 11 June 2014, with the blockade commencing at about 7.00am. The blockading of that gate precluded access being obtained to the Project Site in accordance with the agreement entered into between the Canberra Tradies’ Club and Built on 7 February 2014.
The meeting at the Praga Café commenced sometime thereafter.
On Mr Moore’s account, he was advised by Mr Ault that the “CFMEU are blockading the Hawdon Place Gates and they won’t say what it’s about”. The meeting at the Praga Café was then arranged.
After the meeting at the Praga Café, Mr Moore maintained that he called the ACT police and the police arranged for a police vehicle to be sent out to the Project Site. On his account, he received a phone call from Mr Hall and had the following conversation:
Hall: Did you call the police?
Moore: Yes I did.
Hall:Don’t involve the fucking police. Do you want a war? I will fuck you over. I know a lot of people in this town and you won’t be working in this town long.
Moore:Dean, I won’t be spoken to like that.
On Mr Hall’s account, the conversation was as follows:
Hall:“Why did you involve the fucking Police? It’s our land why the fuck involve the Police?”
Moore:“I was acting under instructions from the FWBC and the MBA. They told me to do it. They have been telling me.”
Hall: “You’re fucked. Fuck you.”
Mr Hall did not believe that he said the words “Do you want a war?”, “I will fuck you over” or “I know a lot of people in this town”.
After putting Mr Moore’s account of the telephone conversation to Mr Hall, Senior Counsel for the Director pursued her cross-examination of Mr Hall as follows:
And would you agree that the tone that you used in this conversation was aggressive? — Angry.
You were angry, were you? — Yes.
But you were aggressive, weren’t you? — Angry and assertive.
Assertive? You were seeking to intimidate Mr Moore, were you not? — I was not.
You wanted to threaten him … ? — No.
… and he made it pretty clear to you that he won’t be spoken to like that? — No.
And can I suggest to you, you would have absolutely no reason to be so angry because Mr Moore had called the police. Nothing in calling the police could have engendered this degree of anger? — Yes.
Your anger stemmed from the fact that you weren’t getting your own way about the EBA; isn’t that right? — No.
Moore wasn’t going to come to the party and work around the code, as you’ve suggested, and that is the thing that made you angry, isn’t that right? — No.
And Moore wasn’t giving into what you wanted to see by way of getting the EBA signed. That’s the basis for it, isn’t it? — No.
Are you sure about that? — Yes.
The forensic course being plotted by Senior Counsel for the Director was to rely upon Mr Hall’s response as part of the context in which the claim for coercion was to be later advanced in final submissions. Senior Counsel’s characterisation of Mr Hall’s response as “hysterical”, however, was misplaced. Taken in either isolation or in the context of other facts, it has been concluded that this exchange does not discharge the Director’s onus of proof and that Mr Hall’s account of the conversation should be accepted.
An even more important factual dispute between the parties focussed upon the reasons why the blockade was put into place on 11 June 2014 and why the further blockade of the Rosevear Place Gate was put in place on 12 and 13 June 2014.
On Mr Hall’s account, the closure of the gates at Hawdon Place on 11 June 2014 was occasioned by safety concerns arising out of the prospect of asbestos being located on the land formerly occupied by the Canberra Tradies’ Club.
By 12 June 2014 any concern on the part of the CFMEU as to asbestos being on the Hadwon Land, however, had been adequately addressed by closing access at the Hawdon Place Gate. By closing those gates, no vehicles or persons could move across the land potentially affected by asbestos.
But the closure of those gates left Built able to access the Project Site by using the Rosevear Place Gate.
It was common ground that the Rosevear Place Gate was blockaded on 12 and 13 June 2014.
It was the case for the Director that the CFMEU’s commitment to having an enterprise agreement signed and an “attendant labourer” on site persisted. The blockade on 12 and 13 June 2014, on the Director’s case, was but a “continuation” of the 11 June 2014 blockade. Mr Hall’s reliance upon concerns as to asbestos or safety was characterised by the Director as a “sham” or a “convenient excuse” cloaking the real reasons for the “Blockade”.
It is further concluded that the Director has failed to discharge the onus of proof imposed by reference to the Briginshaw standard in respect to either:
·the CFMEU imposing the “Blockade” as a means of exerting pressure on Built to sign an enterprise agreement and/or to secure the employment of an “attendant labourer”; or
·the CFMEU’s reliance upon “safety issues” as a reason for the continuation of the “Blockade” as a “sham” concealing its true objective of exerting “pressure” on Built.
The reason for the “Blockade” – the objective of securing an enterprise agreement
As is apparent from both the evidence-in-chief relied upon by the Director and the Director’s cross-examination of the CFMEU witnesses, a significant part of the case advanced on behalf of the Director was that the CFMEU sought to exert pressure upon Built to sign an enterprise agreement.
The importance sought to be ascribed to the CFMEU’s attempts to secure an agreement was advanced on a number of different fronts.
One front was to suggest that the CFMEU was concerned at the fact of a builder constructing a building so close to the Canberra headquarters of the CFMEU where the builder did not have in place an enterprise agreement. This was part of the evidence given by Mr Kivalu and was the topic sought to be advanced by Mr Hall at the Praga Café meeting. There was, accordingly the following exchange between Mr Hall and his cross-examiner:
… Did you make it clear to Mr Moore that you wanted to get this EBA signed? — I – I would like to get an EBA signed, yes.
And you particularly wanted this EBA signed because it just irked you, did it not, that there was a construction site right under your nose – the CFMEU offices – where there was no EBA in operation? — No.
That would have been somewhat embarrassing, wouldn’t it? — No.
You would have been mightily unhappy that right under your very nose, here, there was a construction and no EBA? — No.
That would have brought some shame, would it not? — No.
And it didn’t meet your intention of having 100 per cent coverage? — Unfortunately, it didn’t.
And if you weren’t able to get somebody literally under your nose to sign an EBA, that would have been something where you would have wanted to bring some pressure to bear to achieve that outcome of 100 per cent coverage; is that right? — No. No. No.
And you had been asked specifically by Mr O’Mara to become involved to put that pressure on Built to execute the EBA? — No.
That’s right, isn’t it? — No
Mr O’Mara was equally dismissive of the same suggestion when made to him. During Mr O’Mara’s cross-examination there was thus the following exchange:
And was it the case that you decided to chase them up because it frankly wasn’t a good look to have a construction sites so close to the headquarters where the builders on the construction site didn’t have an EBA. That’s not a good look, is it? — We endeavour to get …
No, no? — … EBAs to everyone. No – no. That’s not correct.
It’s not a good look, is it? It’s not a good look, is it? — It’s – EBAs aren’t about a look. It’s about …
Well, it’s embarrassing, isn’t it, for there to be a construction going on, in effect, under the nose of the CFMEU headquarters and there not to be an EBA in place? — No. I …
That would be very embarrassing, would it not? — I don’t believe so.
If that became a matter of public knowledge that would cause some concern to the Union, would it not? — I don’t believe so.
Another exchange with Mr Hall occurred after he was taken to an email exchange in which Built were raising concerns as to whether the proposed agreement was compliant with – or would be compliant with – the Building and Construction Industry (Fair and Lawful Building Sites) Code 2014. There was thus the following exchange again between Mr Hall and his cross-examiner:
Can I suggest this to you, that the reason that you became involved on 5 June, was that it was looking pretty obvious that the concerns raised by Mr Moore was a pretty clear indication to you that Built were not going to enter into an EBA? — No.
And can I suggest that that would have annoyed you – and I might use a more common phrase – you’re pissed off about that, weren’t you? — About what?
That Built was raising issues about code compliance and that gave an indication in your mind that Built wasn’t going to be signing the proposed agreement? — Built had been indicating – I believe – I’ve been told that they were going to sign the agreement.
The later involvement of Mr Hall in the negotiations to bring about an enterprise agreement signed by Built, namely at a point of time close to the events that occurred on 11, 12 and 13 June 2014, was part of the context relied upon by the Director as a reason for discrediting his account of the conversation at the Praga Café on 11 June 2014 and part of the reason for accepting the account given by Mr Moore.
Others involved in the events of 11, 12 and 13 June 2014 had but little knowledge as to why they were there – other than because they had been asked to attend. Mr Smith, for example, had been an organiser of the CFMEU since 2012. But, at the time, he was an organiser with the Forestry and Furnishing Products Division of the Union. It was not until January 2015 that he joined the ACT Branch of the Construction and General Division of the CFMEU. When cross-examined as to his attendance on 11 June 2014 there was thus the following exchange:
Well, at this stage aren’t you working for the forestry side of things? — That’s right.
And what possible part of your role would involve you turning up at the gates in Hawdon Place on 11 June? — Asked by another division it’s not unreasonable to – to offer your support. Separate divisions can still – it wouldn’t be unreasonable or unusual to assist or to offer your support.
Were you directed to attend? — No.
You went voluntarily, did you? — I was asked to attend and I voluntarily went.
And who asked you? — I can’t recall.
Mr Hall? — I can’t say.
A little later he explained his knowledge of why he was asked to attend as follows:
Well, do you remember what you were told at all? — Not in so many words. No. Not in exact words. I understood there was a general concern about safety, but I was not told anything of that nature.
Well, what was the general concern about safety that you were told? — That – exactly that. That there was concerns about safety.
What sort of safety? I mean, safety could be tripping over a wire, couldn’t it? Or it can be something quite significant? — Well, I wasn’t made aware of the specifics at that stage.
Did you ask? — No.
Well, if you’ve been taken away from your normal duties to go and stand on a winter’s morning in front of a gate surely you would have asked, “Why do you want me to come down? What’s this about?” Surely you would have asked for that, Mr Smith, wouldn’t you? — Well, I didn’t.
Although it may have been expected that a person of Mr Smith’s seniority within the CFMEU would have asked why he was being asked to attend, his evidence is accepted. Had Mr Smith at the time been within the Construction and General Division of the CFMEU, it may have been expected that he would have greater knowledge as to matters of concern to that Division; but it was not to be expected that his position within the Forestry and Furnishing Division would necessarily expose him to more generally expressed concerns of the CFMEU in respect to a specific building site. Nor, with respect, did his cross-examination expose any reason to question the account he provided.
Mr Miller (also known as “Dusty”) also sought to characterise his presence as simply occasioned by a request to be there, albeit as a person with limited knowledge of why that request had been made. When cross-examined, there was thus the following exchange in relation to his attendance on 11 June 2014:
Well, if Mr Hall gave some evidence that he directed you and others to attend the Hawdon Place gate site, would you take issue with that? — I can’t recall who instructed me to attend that day. Someone from the union told me to attend that morning, so I attended.
But it could have been Mr Hall? — I’ve no recollection who it was.
When you say you’ve got no recollection, is it the case that you just can’t say one way or the other because you don’t remember? — That’s right.
If Mr Hall had asked you to attend, do you think it was he who told you the matters that are set out in paragraph 7? — If Mr Hall had have asked me that – I can’t recall. It could have been someone else, because Kivalu was – thought he was the boss back then. Basically it was there because the asbestos problem in that site, and the cars driving through that site might cause a problem.
A little later, there was also the following exchange (without alteration):
And I think you’ve said that you were a soldier on the day. Is that right? — I was just there as one of the organisers. I come along. I wasn’t involved in any discussions with the company about the safety on that job.
Okay. And in terms of what you were told to do – your instructions were to make sure no one could come in through the gates at Hawdon Place. Isn’t that right? — Well, I was there to let people know there was a problem with asbestos on that site.
Well, if you were there to let people know that there was problems with asbestos on the site, who did you let know that morning? — I don’t think I had much to do it. I just there with the group.
When cross-examined in respect to his attendance on 12 and 13 June 2014, there was a similar exchange as follows:
Now, you attended a blockade on 12 June outside the front of the Rosevear Gates, isn’t that right? — The 12th?
12 June. The next day? — That was around the gate around the front?
Yes. You went there? — Yes.
Who told you to go there? — One of my colleagues.
All right. You can’t remember who? No.
And you were told, weren’t you, that you were to prevent anybody accessing the site through that gate? — No. It was a community protest about safety. And you knew that if you prevented anybody accessing the site through that gate that there would be no work done on the site that day. You knew that? — It shouldn’t be done if there are safety concerns and those safety concerns have to be addressed.
You saw no Franna cranes on the morning of 12 June did you? — I can’t recall.
You saw no concrete trucks on the morning of 12 June? You saw no concrete trucks on the 12 June? — I think they were planning …
Do you need to think about that? — … to bring them in there. I think there was a plan to bring trucks in.
The accounts given by Messrs Smith and Miller have necessarily to be considered both by reference to the explanations provided as to their presence and their knowledge – but also by reference to evidence that Messrs Smith and Miller were also heard to say that nobody was allowed on site “because Built doesn’t have an EBA” and that Built “should sort this out, sign the EBA”. Albeit with considerable reservation, it is concluded that the explanation provided by Messrs Smith and Miller as to why they were present on site, their limited state of knowledge as to what was happening on Site and their state of knowledge as to why they were asked to be present is to be accepted.
Notwithstanding the necessity to consider (and re-consider) evidence in its entirety, it is respectfully concluded more generally that this part of the case advanced on behalf of the Director fails.
No satisfactory conclusion can be reached, founded upon the standard required by Briginshaw, that the negotiations between the CFMEU and Built for the execution of an enterprise agreement formed a part of the reasons for the “Blockade” on 11, 12 and 13 June 2014. This part of the Director’s case does not sit comfortably with the fact that:
·the negotiations had commenced in mid-2013 and were on-going;
·the construction of the Kim Harvey School of Dance started in February/March 2014 without any apparent earlier like industrial action; and
·there remains no enterprise agreement signed by Built with the CFMEU.
The Director’s suggestion that the email exchanges concerning the negotiations were “copied in” to Mr Hall by 5 June 2014 and that the timing of those emails exposed a concerted effort to exert pressure on Built is also rejected.
It is further accepted that the “Blockade” that did occur on those days had the potential to prejudice or was “detrimental” to the progress of the negotiations for the completion of such an agreement. Thus, during the cross-examination of Mr O’Mara as to a conversation that he was alleged to have had with Mr Hall, the following exchange occurred:
… What he actually said to you is “I now think we’ve got something we can hold against Built, and this will get them to agree to the EBA”. That’s how the conversation went, didn’t it? — I don’t believe so.
That’s exactly how it went, did it not? — No, it’s not.
You and he thought that this would be the exact lever that you would need to put pressure on Built to sign the enterprise agreement? — I do a lot of safety – a lot of EBAs…
I’m not asking you what you do, Mr O’Mara. I’m not asking you what you do with other EBAs. I am asking you a fairly direct question, which I would like an answer? — Stopping their access to the job would be detrimental to getting the EBA signed.
Stopping their access to the job would put pressure on them to come to the party to the terms you wanted, and that was the purpose of you and Mr Hall saying “Let’s see if we can use the asbestos lever to get what we want”. Isn’t that right — That’s not correct.
That was the sole purpose of you and Mr Hall deciding the site was – quote – too dangerous to allow continued access? — That’s not correct.
In re-examination the following exchange was directed to what Mr O’Mara had meant by the term “detrimental”:
… And you said words to the effect, stopping the site would be detrimental to getting the EBA signed? — Yes.
Do you remember saying that? — Yes, I do.
Could you explain what you mean by that? — Well, you know, standing up to a builder for safety issues doesn’t put him on your Christmas card list and, you know, so by sitting in the middle of an EBA – EBA negotiations and having issues around safety doesn’t, you know – the easy thing would have been to let them go, let the risk go and try and push through with the agreement. You know, the courageous thing for us to do was to stand up for the safety issues and, you know, if it blew the EBA it blew the EBA.
That exchange, it is respectfully considered, forms a further reason to maintain reservations as to the case sought to be advanced on behalf of the Director, and contributes to the conclusion that the Director has not discharged the onus of proof required by Briginshaw.
The CFMEU’s concerns as to asbestos and traffic – sham excuses for unlawful conduct?
The case for the Director extended beyond its allegations in respect to the conduct of the CFMEU being motivated by a desire to secure an enterprise agreement. The case extended to an allegation that any reliance by the CFMEU upon professed concerns as to safety was a “sham”. That latter aspect of the Director’s case being supported, according to the Director by reference to (inter alia):
·either the failure to raise its professed concerns at an earlier point of time or its raising such concerns belatedly;
·the fact that although the blockade initially imposed on 11 June 2014 of the Hawdon Place Gate was grounded upon professed concerns as to asbestos, that blockade and the blockade of the Rosevear Place Gate continued notwithstanding that concerns as to asbestos were adequately addressed by the closure of access to the land said to be the subject of the concern, namely the Canberra Tradies’ Club land;
·the fact that no heavy vehicle access was seen to have occurred which would justify the closure of the Rosevear Place Gate and, accordingly, the absence of any well-founded concern as to traffic management and risks to those attending the Pinocchio Early Learning Centre; and
·the manner in which the blockade at the Rosevear Place Gate was effected, with the CFMEU persons standing “shoulder-to-shoulder” so as to prevent all access to the Project Site and not merely confined to ensuring heavy vehicles did not access that site.
The Director sought to buttress his case by further submitting that:
·there was no credible evidence to substantiate Mr Hall’s professed concerns as to asbestos.
The case for the CFMEU maintained the genuineness of its concerns and denied that the “Blockade” was imposed for the reasons relied upon by the Director.
The concern as to asbestos – 11 June 2014
The reason why it has been concluded that it is ultimately not necessary to resolve these arguments is that, even if the Director had made out a case of “adverse action” having been taken which fell within Item 7(c) of s 342(1), a contravention of s 340 necessarily involves a finding that conduct falls within s 340(1)(a) or (b). A contravention of s 340(1) is made out if “a substantial and operative” reason for action is prohibited: cf. Board of Bendigo Regional Institute of Technical and Further Education [2012] HCA 32, (2012) 248 CLR 500 at 535. Gummow and Hayne JJ there concluded in respect to s 346 of the Fair Work Act:
[104] … An employer contravenes s 346 if it can be said that engagement by the employee in an industrial activity comprised “a substantial and operative” reason, or reasons including the reason, for the employer’s action and that this action constitutes an “adverse action” within the meaning of s 342.
See also: Kennewell v MG & CG Atkins [2015] FCA 716 at [51] per Tracey J; Wroughton v Catholic Education Office Diocese of Parramatta [2015] FCA 1236 at [8] per Flick J.
In respect to Mr Hall it has been concluded that he has discharged the onus of proof imposed upon him by s 361 that the action he took was not for a prohibited reason. It has already been found that:
·the closure of the Hawdon Place Gate on 11 June 2014 was occasioned by Mr Hall’s concerns as to safety arising from the need to resolve any dangers presented by asbestos; and
·the purpose sought to be achieved in the subsequent closure of the Rosevear Place Gate was founded upon concerns as to safety occasioned by the prospect of increased traffic flows, including heavy vehicles. In particular, Mr Hall’s denial in para [75] of his affidavit has been accepted.
The case as pleaded against Mr Hall at paras [61] and [62] of the Amended Statement of Claim thus fails.
So too does the Director’s case pleaded against Mr Miller (at paras [63] and [64]) and Mr Smith (at paras [65] and [66]). Again proceeding on the assumption that the Director has made out the allegation that the “Blockade” occasioned “prejudice” as required by Item 7 of s 342(1) of the Fair Work Act, the pleaded case against Messrs Miller and Smith fails because the Director has failed to establish that either took action that otherwise falls within s 340(1).
Section 340(1)(a), for example, prohibits the taking of action against another person “because” that other person has a “workplace right”. In the case of Mr Miller, evidence was given by (for example) Mr Horsham that Mr Miller was alleged to have said that “nobody is allowed on this site today … because Built doesn’t have an EBA”. Mr Horsham also attributes to Mr Smith the words that “[t]his is an EBA issue”. This evidence forms part of the evidence that has been characterised as “truly worrying”. This evidence forms part of the Director’s case in respect to the alleged contraventions of s 340 and also ss 343 and 355. This “truly worrying” aspect of the evidence has necessarily to be revisited in the context of the resolution of the ss 343 and 355 contraventions. For present purposes, it is sufficient to note that (albeit with considerable reservation) acceptance of the Director’s evidence has ultimately not prevailed.
The pleaded contraventions of ss 343 & 355
The contraventions of ss 343 and 355 can be dealt with together.
Contraventions of s 343 of the Fair Work Act are again alleged against Messrs Hall, Miller and Smith.
By way of example, the pleading as against Mr Hall is as follows:
67. Further, and in the alternative to paragraphs 61 and 62, Hall:
(a)organised the Blockade, with the intent to coerce, or for the reason of coercing, Built to sign the Proposed Enterprise Agreement, within the meaning of s. 343 of the FW Act; and/or
(b)participated in the Blockade, with the intent to coerce, or for the reason of coercing, Built to sign the Proposed Enterprise Agreement, within the meaning of s. 343 of the FW Act.
(the Hall s. 343 Contraventions).
Particulars
The Director relies, amongst other facts, on the following:
(i)the facts pleaded in paragraphs 24-26, with respect to Hall’s knowledge of the Proposed Enterprise Agreement;
(ii)the facts pleaded in paragraphs 28, 42, 45 and 49, with respect to Hall’s organisation of the Blockade; and
(iii)the facts pleaded in paragraphs 28, 29, 32, 33, 35, 36, 42, 45, 49 and 56, with respect to Hall’s conduct in respect of the Blockade.
The corresponding allegation pleaded against Mr Miller is to be found at para [68] of the Amended Statement of Claim; that made against Mr Smith is to be found at para [69]. The allegation made, at least as set forth in these paragraphs and as made in para [67], is that each of these Respondents “organised” and/or “participated” in the “Blockade” with a like “intent”.
Contraventions of s 355 of the Fair Work Act are also alleged against Messrs Hall and O’Mara.
The pleading as against Mr Hall is as follows:
70.Further, by reason of the matters pleaded in paragraphs 29, 32, 33, 34, 36, 42, 49 and 56, the Blockade was organised by Hall, and Hall participated in the Blockade, with the intent to coerce, or for the reason of coercing, Built to:
(a)employ a particular person, within the meaning of s. 355 of the FW Act; and/or
(b)allocate particular duties or responsibilities to a particular person, within the meaning of s. 355 of the FW Act.
The corresponding allegation pleaded against Mr O’Mara is to be found at para [71] of the Amended Statement of Claim. The allegation made against Mr O’Mara is that he “organised” and “participated” in the “Blockade” with the same “intent”.
Organising and/or participating
The form of pleading in respect to the alleged contraventions of both s 343 and s 355 was that a particular respondent “organised … and/or … participated” in the “Blockade”. That, for example, is the form of pleading against Mr Hall at para [67] of the Amended Statement of Claim.
Both ss 343 and 355 are expressed in terms of a prohibition that a person “must not organise or take … action” against another person.
Notwithstanding the alternative manner in which ss 343 and 355 are expressed, and notwithstanding the form of pleading, there was an absence of any detailed submission in respect to either:
·whether participation in the “Blockade” was to be equated with the prohibition against a person “taking” action against another; and
·whether the facts, if they fell short of a particular respondent having “organised” the “Blockade”, could nevertheless give rise to a finding that the person “participated” in that event and had thereby “taken” action and contravened ss 343 and/or 355.
The focus of the attention of the submissions was very much confined to whether a respondent “organised” the “Blockade”. The written submissions advanced by the Director were somewhat unhelpful in maintaining (for example) that it was “enough that Miller participated in the blockade, and the organisation of the blockade, with the intent to coerce”. Elsewhere it is (with respect) equally Delphically submitted that “knowledge and participation in the blockade and the discussions that brought the blockade about, caused the blockade to be organised”.
The apparent explanation for the manner in which the Amended Statement of Claim is drafted is to be found in the Particulars to paras [67], [68] and [69], which refer to the involvement of these Respondents in causing the “Blockade” “to be organised”. Paragraph [28], being one of the paragraphs referred to in the Particulars to paras [67], [68] and [69] (for example), provides in part as follows:
On or about 11 June 2014, Hall, O’Mara, Smith and Miller caused a blockade (the 11 June 2014 Blockade) to be organised that, as each of them knew and intended:
(a) would be conducted at the KHSD Project, at the Hawdon Place Gate;
(b)would commence at about 6.15am on 11 June 2014, and would continue thereafter until it concluded;
(c)would be attended by a number of CFMEU officials and employees, including Hall, O’Mara, Miller, Kivalu, Smith, Hamilton, Lomax and Vitler; and
(d)would close the KHSD Project, and thereby prevent any building works from being conducted.
(emphasis in original)
Paragraphs [42] and [49] are, by way of further example, also expressed in comparable terms. The case for the CFMEU was that the Court “should decide this case on the basis of the contraventions alleged in the pleadings”, the submission presumably being that the pleadings confined the contraventions to those occasioned by an alleged “organisation” of the “Blockade”.
In the absence of detailed submissions to the contrary, the course that has been taken is to confine findings of fact to whether ss 343 and/or 355 have been contravened by reason of whether a person “organised” action with the requisite intent. It has, in any event, proved unnecessary to consider any question as to the proper construction of ss 343 and 355 and whether “participation” in an event is to be equated with “taking” action.
Although Messrs Miller and Smith were in attendance at the “Blockade”, no conclusion is reached that either “organised” the action taken as pleaded in the Amended Statement of Claim. That conclusion in respect to Mr Miller is expressed with far greater reservation than is the conclusion in respect to Mr Smith. Although it was submitted that Mr Miller was not an “organiser”, it is not to be forgotten that in his cross-examination he did accept that he was “just there as one of the organisers”. But such a statement, it has ultimately been concluded, is not sufficient to found a conclusion that Mr Miller organised those events for the purposes of s 343 of the Fair Work Act. It is ultimately concluded that Mr Miller was present, not because he was one of the organisers, but because he had been instructed to be present. The conclusion that neither “organised” the action taken is consistent with their limited state of knowledge as to what was happening on site and their limited state of knowledge as to why they had been asked to attend on site. It is also concluded that neither Mr Miller nor Mr Smith took action for any prohibited reason. The purpose being pursued by Messrs Miller and Smith was that pursued by Mr Hall.
Even if “participation” were to fall within ss 343 and/or 355, the question remained as to the “intent” with which each Respondent so “participated”.
An intent to coerce – the elements required to be proved
Sections 343 and 355 are two of four provisions in the Fair Work Act directed at proscribing action against another person with “intent to coerce”. The other provisions are ss 348 and 362. Section 343 provides as follows:
343 Coercion
(1)A person must not organise or take, or threaten to organise or take, any action against another person with intent to coerce the other person, or a third person, to:
(a)exercise or not exercise, or propose to exercise or not exercise, a workplace right; or
(b)exercise, or propose to exercise, a workplace right in a particular way.
(2) Subsection (1) does not apply to protected industrial action.
As to the requirement that action must not be taken “with intent to coerce”, two elements must be established to prove an “intent to coerce”: 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. 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. 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, nor 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 para (c).
Justice Merkel reviewed the authorities with respect to an intention to coerce and summarised the position as follows (at 348):
[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].
Proof of an “intent to coerce” thus requires an intent 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. In the context of considering s 170NC of the Workplace Relations Act, Weinberg J there 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.
But it is not necessary to establish that a person intended to act unlawfully, the determination of whether the action engaged in was unlawful is to be determined objectively: Esso Australia Pty Ltd v The Australian Workers’ Union [2016] FCAFC 72, (2016) 258 IR 396. Buchanan J (with whom Siopis J agreed) observed (at 443 and 446):
[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 448):
[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.
Similarly, in Seven Network [2001] FCA 456, (2001) 109 FCR 378 at 387 Merkel J referred to Giorgianni v The Queen (1984) 156 CLR 473 at 504 to 507 and continued on to observe:
[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 …
A person engages in conduct intended to coerce a person even if the conduct has one of 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.
Section 355 provides as follows:
355 Coercion—allocation of duties etc. to particular person
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) employ, or not employ, a particular person; or
(b) engage, or not engage, a particular independent contractor; or
(c)allocate, or not allocate, particular duties or responsibilities to a particular employee or independent contractor; or
(d)designate a particular employee or independent contractor as having, or not having, particular duties or responsibilities.
The requirement imposed by s 355 that the action be taken “with intent to coerce” is to be construed in the same manner for ss 343 and 348: cf. Fair Work Ombudsman v Maritime Union of Australia [2014] FCA 440 at [303] to [304], (2014) 243 IR 312 at 354 per Siopis J.
Section 355, it should also be noted, makes a distinction between taking action and organising action: Director, Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2015] FCA 1125 at [126], (2015) 254 IR 200 at 233 to 234 per Jessup J. The “core policy objective” of s 355 is to ensure a person is not required, under threat of coercion, to employ a particular person: Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union (No 2) [2015] FCA 1462 at [2] per Jessup J.
The absence of any intent to coerce
The allegations as to contraventions of ss 343 and/or 355 are rejected.
The principal reason for so concluding is that the purpose sought to be pursued in closing the Hawdon Place Gate and the Rosevear Place Gate was founded upon concerns as to safety: asbestos in the case of the Hawdon Place Gate and traffic in the case of the Rosevear Place Gate.
Moreover, it is further concluded that Mr Hall’s denial of any “intent to coerce” as set forth in his affidavit at para [75] should be accepted. So, too, should Mr Hall’s denial during his cross-examination that he sought “to put as much pressure as possible on Mr Moore” and his denial that he wanted Mr Moore to agree to his proposal to employ an attendant labourer. The absence of any finding of an “intent to coerce” is also consistent with and supported by – albeit separate from – the finding as to his purpose in effecting the “Blockade”.
One factual plank relied upon by the Director in his written submissions to support a finding that Mr Hall had the requisite intent to coerce Built was the exchange at the Praga Café in which, on Mr Moore’s account, Mr Hall said that the “site needs an attendant labourer” and that the union had “a guy that you can take on for four weeks”. But that factual plank falls away with the finding that Mr Hall’s account of the conversation at the Praga Café is to be preferred to that of Mr Moore. Even had a different factual finding been made as to whether this part of the conversation had taken place, it would also most probably have been found that such a statement on Mr Hall’s part would fall well short of the “high degree of compulsion” required to make good a finding as to “intent to coerce”: cf. National Tertiary Education Industry Union [2002] FCA 441 at [103]. The words ascribed by Mr Moore to Mr Hall, standing alone, would not rise to that level of compulsion; when considered against the backdrop of the conversation as given by Mr Hall, the level falls even further short.
The denial of any “intent to coerce” as set forth in the affidavits of Messrs Miller and Smith has also been accepted. It is concluded that neither Mr Hall, Mr Miller nor Mr Smith had any “intent to coerce” as pleaded against them.
But for that reason, some limited difficulty may have been encountered by the Director in making good (for example) its allegation that:
·Mr Hall either “organised” (at para [67(a)] of the Amended Statement of Claim) the action taken on 12 June 2014 in circumstances where he was not present on that day and there was a scarcity of other evidence that he had “organised” the action prior to 12 June.
The Director may also have encountered some difficulty in making good the allegation that:
·Messrs Miller and Smith contravened s 343 by reason of their having “organised” the action that took place in circumstances where both Messrs Miller and Smith denied having “organised” those events.
In recognising the difficulties that may have been encountered by the Director in proving an allegation that Mr Hall “organised” the “continuation” of the “Blockade”, it must also be necessarily recognised that such an allegation was not without considerable substance. Mr Hall in his affidavit, albeit in respect to a paragraph which was “not pressed”, maintained that he “authorised the continuation of the blockade”. But when cross-examined as to this paragraph, the following exchange occurred between Mr Hall and his cross-examiner:
And in terms of what you continued to authorise by way of blockade, who did you authorise to blockade, and what did you actually authorise?—I’m not sure about the question.
Well, you’ve said:
So I authorised a continuation of the blockade. I’m sorry, I can’t now remember who I spoke to.
I’m asking whether you now have a recollection of who you spoke to?—No. But I would have sent the – sent the organisers to go down there.
If you remember which particular organisers?—No. All of them, probably.
Do you remember what you asked them to do?—Make sure there’s no heavy vehicles go through that child-care car park.
All right. And did you ask them to start a blockade outside the front of the Pinocchio child-care centre so that no heavy vehicles would go through the child-care centre car park?—No. I didn’t. I wasn’t so specific. I – actually, I can’t recall.
Well, if your genuine concern was heavy vehicles going through the child-care car park, then wouldn’t it have made sense to exercise your blockade at the entrance of the car park. That would have made sense, wouldn’t it?—That would have probably stopped the people dropping their kids off…
It would have stopped them? — …and that wasn’t the purpose.
Given that evidence, it would most probably have been the case that a finding would have been made that Mr Hall “organised the Blockade” as alleged in para [67(a)] of the Amended Statement of Claim. But, even had such a finding been made, the finding which doomed the Director’s case against Mr Hall to failure was the finding that he did not act with “any intent to coerce” as alleged.
The involvement of Mr Miller and Mr Smith in organising the “Blockade” was less certain.
In respect to Mr Miller, there can be no doubt that he “participated” in the “Blockade”. It was in this context that the written submission advanced on behalf of the Director conflated the separate pleading as to whether Mr Miller “organised” and/or “participated” in the “Blockade”. The submission was that although Mr Miller was “not the mastermind of the blockade and … did not personally decide that the blockade should be imposed”, the evidence showed that “he played an instrumental role in organising and participating in the blockade”. The ultimate submission was that his “knowledge and participation in the blockade and the discussions that brought the blockade about, caused the blockade to be organised”. That is the manner in which para [68] of the Amended Statement of Claim has been construed, namely an allegation as to contravention by reason of Mr Miller having “organised” the “Blockade”. Had it been necessary to do so, it would most probably have been concluded that Mr Miller’s role in the “Blockade” fell short of a conclusion that he “organised” that event; his “knowledge” and “participation” would have fallen short of “organisation”.
More difficult to resolve was the question as to Mr Miller’s intent. In maintaining that Mr Miller clearly had the requisite intent, reliance was placed by the Director upon (for example) the account given by Mr Horsham as to Mr Miller saying:
·“[N]obody is allowed on this Site today … because Built doesn’t have an EBA”.
In respect to Mr Smith, there can equally be no doubt that he (like Mr Miller) “participated” in the “Blockade”. In seeking to prove Mr Smith’s requisite intent, reliance was again placed by the Director upon Mr Horsham’s account of Mr Smith saying:
·“[T]his is an EBA issue”.
The competing evidence in respect to what was said on 11 and 13 June 2014 has been regarded as “truly worrying”. It is a concern which had also to be addressed when considering the Director’s alleged contraventions of s 340(1) of the Fair Work Act.
But that worry has been resolved by the finding that the Director has failed to discharge the onus of proof in respect to the account given by (in particular) Mr Horsham.
The evidence of Mr Smith should also be separately addressed, especially in the context as to whether his denial of any requisite “intent” should be accepted. His evidence has also formed part of the exchanges which have been characterised as “truly worrying”. On behalf of the Director it was submitted that Mr Smith’s evidence was further open to criticism by reason of:
·his tendency to “embellish” his evidence;
·his evidence being contradicted by or inconsistent with the evidence of Mr O’Mara and Mr Kivalu;
·his evidence being “implausible”; and
·his evidence being “internally inconsistent”.
Such a litany of criticisms certainly occasions further reason to pause when assessing whether his denial of the requisite intent should be accepted. The example provided as to Mr Smith’s evidence being “implausible” was his account as to who asked him to attend on Site on 11 June 2014 and his absence of knowledge as to why he was asked to attend, other than a reference to a generally expressed concern as to “safety”. But this evidence of Mr Smith has been accepted. The example relied upon by the Director to establish “internal inconsistency” in Mr Smith’s evidence is the inconsistency between Mr Smith’s statement in his affidavit that he knew nothing “about the EBA” and his evidence that the negotiations had “dragged on for 12 months”. With respect to this evidence, it has been concluded that the Director has failed to discharge the onus of proof in respect to the words sought to be ascribed to Mr Smith, being “[t]his is an EBA issue”. That was a conclusion expressed by reference to the evidence of Mr Ault, Mr Smith and others and the fact that Mr Horsham did not give a like account to Mr Ault. But the present submission as to there being an “internal inconsistency” is to be assessed by reference to the evidence of Mr Smith alone. Mr Smith’s reluctance to accept the “inconsistency” is a reason to question his evidence on this particular factual issue and a reason to question the reliability of the balance of his evidence. On balance, however, it is nevertheless concluded that each of the criticisms of Mr Smith’s evidence do not lead to a conclusion that his evidence in respect to his denial of the requisite intent should not be accepted on the balance of probabilities.
Even if it were to be found that Mr Miller and Smith “participated” in the “Blockade” and thereby “took action” against Built or that either “organised” those events, the allegations as to contraventions of ss 343 and 355 fail either because:
·the Director has failed to prove the making of the statements upon which reliance is placed to make good the allegation as to “intent”; and/or
·both Mr Miller and Mr Smith have discharged the onus of proof imposed upon them by s 361 denying the requisite intent and the acceptance of their denials.
The allegation of a contravention of s 355 by Mr O’Mara (at para [71] of the Amended Statement of Claim) should be separately addressed.
Albeit unnecessary to resolve the allegation that Mr O’Mara “organised” the “Blockade”, it would most probably have been concluded that:
·Mr O’Mara did not “organise … the Blockade” as alleged, although a finding would most probably have been made that he “participated” in the blockade on 11 June 2014; and/or
·Mr O’Mara’s “participation” in the blockade on 12 June 2014 would be open to question given the fact that he was absent from Canberra between lunchtime on 11 June 2014 and did not return until about lunchtime on 13 June 2014.
It is unnecessary to express any more than a tentative view because the conclusion has been reached that the pleaded contravention by Mr O’Mara fails because:
·no finding can be made that he had the requisite “intent to coerce” as alleged in para [71] of the Amended Statement of Claim.
As with Messrs Hall, Miller and Smith, Mr O’Mara in his affidavit also denied having any “intent to coerce”. In seeking to make good the allegation of an impermissible intent, the Director seeks to rely upon Mr O’Mara’s:
·participation in the meeting at the Praga Café at which the Director submits “that issue is discussed”;
together with:
·his “seniority within the CFMEU”.
It is submitted that Mr O’Mara had the “same intent as Hall”. The submission made by the Director as to Mr O’Mara’s contravention of s 355 is rejected because:
·Mr Hall’s account of what was discussed, the order in which topics were discussed and the context in which that discussion took place has been accepted in preference to that given by Mr Moore.
Other considerations also include:
·the fact that someone attended a meeting does not necessarily poison such a person with any intent that may have been held by another – a finding of intent being a finding that has to be necessarily made by reference to the words or conduct of the person involved; and
·the fact that mere “seniority” does not necessarily involve the consequence that “senior” persons all have the same intent.
Paragraphs [67] to [71] of the Amended Statement of Claim have not been made out.
The pleaded accessorial liability under s 550
Accessorial liability under s 550 of the Fair Work Act is again alleged as against the individual Respondents Messrs Miller, Smith, O’Mara, Kivalu, Hamilton, Lomax and Vitler.
Section 550 provides as follows:
550 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.
As that section makes clear, a person can only be held to fall within the reach of the section if he has been “involved” in a “contravention of a civil remedy provision”.
In very summary form, the Amended Statement of Claim alleges that:
·Mr Miller was “involved” in the contraventions by Mr Hall of ss 340 and/or 343 of the Fair Work Act (at paras [72] and [74]);
·Mr Smith was “involved” in the contraventions by Mr Hall of ss 340 and/or 343 (at paras [75] to [77]);
·Mr O’Mara was “involved” in the contraventions by Mr Hall of ss 340, 343 and/or 355 (at paras [78] and [80]);
·Mr Kivalu was “involved” in the contraventions by Mr Hall of ss 340 and/or 343 (at paras [81] and [83]);
·Mr Hamilton was “involved” in the contraventions by Mr Hall of ss 340 and/or 343 (at paras [84] to [86]);
·Mr Lomax was “involved” in the contraventions by Mr Hall of ss 340 and/or 343 (at paras [87] and [89]); and
·Mr Vitler was “involved” in the contraventions by Mr Hall of ss 340 and/or 343 (at paras [90] to [92]).
By way of example, the pleading against Mr Miller is as follows (without alteration):
72. Through his participation in the conduct or actions set out above, Miller:
(a) participated in the 11 June 2014 Blockade;
(b) was present when the Smith Representation was made;
(c) did not disassociate himself from the Smith Representation;
(d) made the First Miller Representation;
(e) participated in the 12 June 2014 Blockade;
(f)failed to leave the Pinocchio Childcare Centre when asked as set out at paragraphs 43 and 44 above;
(g) was present when the First Kivalu Representation was made;
(h) did not dissociate himself from the First Kivalu Representation;
(i) participated in the 13 June 2014 Blockade;
(j) was present when the Hamilton Representation was made;
(k) did not disassociate himself from the Hamilton Representation;
(l) was present when the Second Kivalu Representation was made;
(m) did not disassociate himself from the Second Kivalu Representation;
(n) made the Second Miller Representation;
(o) was present during Kivalu’s conduct as pleaded at paragraph 54 above;
(p)did not disassociate himself from Kivalu’s conduct as pleaded at paragraph 54 above;
(q) was present during Hall’s conduct as pleaded at paragraph 56 above.
(r)did not disassociate himself from Hall’s conduct as pleaded at paragraph 56 above; and/or
(s) participated in the blockade.
73.By reason of the matters pleaded at paragraph 72 above, Miller knew of the facts surrounding the Blockade that gave rise to:
(a) the Hall s.340 Contraventions; and/or
(b) the Hall s.343 Contraventions.
74.Further and in the alternative to the Miller s.340 Contraventions and the Miller s.343 Contraventions, by reason of the matters pleaded at paragraphs 72 and 73 above, Miller was involved in contraventions of the FW Act pursuant to s.550 of that Act in that Miller:
(a) aided and abetted:
(i) the Hall s.340 Contraventions; and/or
(ii) the Hall s.343 Contraventions; and/or
(b) was directly or indirectly knowing concerned in or party to each of:
(i) the Hall s.340 Contraventions; and/or
(ii) the Hall s.343 Contraventions.
The corresponding allegations pleaded against the remaining Respondents and their “accessorial liability” are to be found at paras [75] to [92] of the Amended Statement of Claim.
In the absence of any finding having been made as to a contravention of ss 340, 343 or 355 of the Fair Work Act by Mr Hall or other individual Respondents, no question arises as to accessorial liability on the part of any of the other individual Respondents.
Paragraphs [72] to [92] of the Amended Statement of Claim are thus rejected.
The pleaded contraventions of the CFMEU
Paragraphs [93] to [96] of the Amended Statement of Claim pleads the liability of the CFMEU for the contraventions of s 340; paras [97] to [100] pleads the liability of the CFMEU for the contraventions of s 343; paras [101] to [103] pleads the liability of the CFMEU for the contraventions of s 355; and paras [104] to [110] pleads the liability of the CFMEU for the accessorial liability sought to be imposed pursuant to s 550.
In each case, the liability of the CFMEU is pleaded to arise pursuant to s 793 of the Fair Work Act.
Again, no question as to the liability of the CFMEU arises in the absence of any finding as to any contravention of ss 340, 343 or 355 or any finding as to accessorial liability pursuant to s 550.
Paragraphs [93] to [110] of the Amended Statement of Claim are thus rejected.
CONCLUSIONS
It has been concluded that the case advanced on behalf of the Director substantially fails because he has not discharged the onus of proof imposed upon him, being guided by the observations in Briginshaw.
It has also been concluded that each of the affected individual Respondents have discharged the onus of proof imposed by s 361 of the Fair Work Act.
The present proceeding has exposed (not unexpectedly) a conflict in the evidence of the Director and that of the Respondents but also discrepancies in the evidence even as adduced on behalf of the Director. The resolution of the competing claims has not proved an easy task, especially given the limited need to place some reliance upon such an uncertain touchstone as the demeanour of witnesses and the equally uncertain basis upon which conflicting evidence and internally inconsistent evidence is to be assessed.
The Director bore the initial onus of proof, according to the principles established in Briginshaw. The CFMEU respondents bore the onus of proof imposed by s 361 of the Fair Work Act applied upon the balance of probabilities. Notwithstanding such difficulties, such findings as have been made are based upon a consideration of the evidence in its entirety.
Mr Kivalu attracts different considerations by reason of his admission of the contraventions.
THE ORDER OF THE COURT IS:
1.The parties are to bring in Short Minutes of Orders to give effect to these reasons within fourteen days.
I certify that the preceding two hundred and twelve (212) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Flick. Associate:
Dated: 22 March 2017
SCHEDULE OF PARTIES
ACD 65 of 2015 Respondents
Fourth Respondent:
JASON O'MARA
Fifth Respondent:
HALFINHI KIVALU
Sixth Respondent:
GARRY HAMILTON
Seventh Respondent:
JOHNNY LOMAX
Eighth Respondent:
ANTHONY VITLER
Ninth Respondent:
CONSTRUCTION, FORESTRY, MINING & ENERGY UNION
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