Australian Building and Construction Commissioner v Moses - [2017] FCCA 738

FEDERAL CIRCUIT COURT OF AUSTRALIA

AUSTRALIAN BUILDING AND CONSTRUCTION COMMISSIONER v MOSES & ORS

[2017] FCCA 738

Catchwords:
INDUSTRIAL LAW – Application for the imposition of pecuniary penalties – findings on liability – alleged contraventions of ss.346, 348 and 349 of the Fair Work Act – accessorial liability.

Legislation:

Fair Work Act 2009, ss.346, 348, 349, 363, 550(1), 793

Cases cited:
Australian Building and Construction Commissioner v Hall [2017] FCA 274
Briginshaw v Briginshaw (1938) 60 CLR 336
Construction, Forestry, Mining and Energy Union v Class 1 Form Pty Ltd & Ors [2017] FCCA 696
R v Beck [1990] 1 Qd R 30

Applicant:

AUSTRALIAN BUILDING AND CONSTRUCTION COMMISSIONER

First Respondent:

JODY MOSES

Second Respondent:

GREGG CHURCHMAN

Third Respondent:

CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION

File Number:

BRG 450 of 2016

Judgment of:

Judge Jarrett

Hearing date:

11 and 12 April 2017

Date of Last Submission:

12 April 2017

Delivered at:

Brisbane

Delivered on:

18 April 2017

REPRESENTATION

Counsel for the Applicant:

Mr C. Murdoch QC with Mr Mackie

Solicitors for the Applicant:

Ashurst Australia

Counsel for the Respondents:

Mr Massy

Solicitors for the Respondents:

Hall Payne

ORDERS

The parties bring in minutes of orders upon which they agree within seven (7) days of the delivery of these reasons.
Otherwise adjourn the application to 9 May 2017 at 9:30am for directions as to the convening of a penalty hearing.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 450 of 2016

AUSTRALIAN BUILDING AND CONSTRUCTION COMMISSIONER

Applicant

And

JODY MOSES

First Respondent

GREGG CHURCHMAN

Second Respondent

CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION

Third Respondent

REASONS FOR JUDGMENT

On 11 September, 2013 the first and second respondents met with employees of Smithbridge Group Pty Ltd, a contractor working on a construction site described in the material before me as the Gladstone Boardwalk Construction Project. The applicant alleges that at the meeting Mr Moses, an organiser employed by the Construction, Forestry, Mining and Energy Union said words to the effect that if they did not join the CFMEU then:
a)no work would occur by the workers that day;
b)they would be removed from the project;
c)it was a union site and if they wanted to work on the project they had to join the CFMEU; and
d)the workers had five minutes to think about it.
Mr Moses was accompanied by the second respondent, Mr Churchman, who was a CFMEU delegate working for the principal contractor on the Boardwalk Construction Project.
The applicant alleges that by that conduct Mr Moses contravened ss.346, 348 and 349 of the Fair Work Act 2009 (Cth). The applicant alleges that Mr Churchman is also liable for those contraventions pursuant to s.550(1) of the Fair Work Act in that he aided, abetted or was otherwise knowingly concerned in the contraventions committed by Mr Moses. The CFMEU is alleged to be liable for Mr Moses’s contraventions because he was, for the purposes of ss.363 and 793 of the Fair Work Act, an officer of the CFMEU at all relevant times.
The respondents deny that the contraventions occurred in that they deny that Mr Moses said anything to the Smithbridge workers that could be reasonably construed in the way in which the Commissioner alleges. Further Mr Churchman denies that he is liable pursuant to s.550(1) of the Fair Work Act even if Mr Moses committed the contraventions alleged by the Commissioner.

The Evidence

The Commissioner called evidence from four witnesses: Nicolas Navarrete, Nathan Mangu, Philip Dayman and Richard Brent. Save for Mr Brent, each witness swore two affidavits that were read in the proceedings. Each witness was cross-examined by counsel for the respondents. Again, save for Mr Brent, a statement given to an investigator from the office of the Fair Work Building Inspectorate by each witness was tendered in cross-examination.
Both Mr Moses and Mr Churchman gave evidence by way of one affidavit each. They were cross-examined by senior counsel for the Commissioner.
The evidence demonstrates that J Hutchinson Pty Ltd was the principal construction contractor on the Gladstone Coal Exporters Maritime Precinct in Gladstone, Queensland. The Gladstone Maritime Development included the construction of the Gladstone Port Boardwalk and development of marina parklands and public space at a portion of land on Flinders Parade in Gladstone, adjacent to the Gladstone Boat Harbour. Mr Swift was Hutchinson’s site manager on the Boardwalk Project.
Smithbridge is an engineering company that does work in the building and construction industry specialising in civil marine construction works. In September, 2013 Smithbridge was contracted to provide construction work on the Boardwalk Project including installing steel columns on which concrete paths would be subsequently erected. Smithbridge was part of a group of related companies that included Universal Cranes Pty Ltd. The work being undertaken by Smithbridge and Universal Cranes employees meant that they were eligible to join the CFMEU.
During September, 2013 Mr Moses was an organiser employed by the CFMEU. At the same time Mr Churchman was a delegate of the CFMEU employed by Hutchinson. He attended at the Boardwalk Project. According to Mr Churchman’s evidence he looked after the Boardwalk Project site and some other projects around Gladstone and in Rockhampton for the CFMEU as a delegate.
There is no dispute that the events relevant to these proceedings took place on 11 September, 2013. On that day, Mr Moses accompanied by Mr Churchman at least, attended the Boardwalk Project for the purposes of speaking with employees of Smithbridge about joining the CFMEU. What occurred on that day and when it occurred is the subject of disagreement between the various witnesses who have given evidence before me.
At the relevant time Mr Navarrete was employed by Smithbridge as a project manager and was stationed on site at the Boardwalk Project.
Hutchinson provided Smithbridge with two demountable buildings or “dongas” for its employees to use on the construction site. They were rectangular buildings aligned side by side along their longer sides. Between their adjacent longer sides ran a covered breezeway which was about one and half metres wide and six metres in length. The buildings were elevated and were accessed by stairs at one end of the breezeway.
One of the demountables, that to the left hand side as one walked up the stairs to the buildings from ground level, was used as an office and contained open plan workstations. Mr Navarrete had his workstation in this building.
The other demountable, on the right hand side as one walked up the stairs, was a “smoko room” for the Smithbridge and Universal Cranes workers to use. The smoko room contained three tables and about 18 chairs, a refrigerator, coffee and tea facilities and an electric kettle.
Both demountables had two windows, one on each of the longer sides of each building. The windows in each building were diagonally opposite each other, about one third in from each of the shorter sides of the building. The window in each building along the side abutting the breezeway opened onto the breezeway.
Each building had one door. The doors opened onto the breezeway and were positioned diagonally across the breezeway from each other, almost but not quite directly opposite the window opening onto the breezeway in the adjoining room. The door to the office room was closer to the stairs end of the breezeway and the door to the smoko room was closer to the other end of the breezeway.
There are plans of the buildings in evidence. They reveal that from where Mr Navarrete describes the position of his workstation, he could see through a window in the office room, across the breezeway and through the door of the smoko room into that room. Both buildings had air-conditioning units installed in them on the shorter sides of each building at the end where the stairs were positioned.
The proximity of Mr Navarrete’s office and his desk in the office demountable was such that while he was sitting at his desk and if the window near him and the door to the smoko room was open, he could hear conversations that took place in the smoko room. I accept Mr Navarrete’s evidence that if workers were in the smoko room talking to each other, Mr Navarrete could hear the specific words that they were using, even if they were taking in normal tones.
At some point in September, 2013 and before 11 September, 2013 Mr Navarrete met Mr Churchman, perhaps for the first time, but it does not matter. Mr Churchman expressed a desire to meet the employees of Smithbridge and Universal Cranes that were working on the Boardwalk Project.
Mr Navarrete’s evidence is that on 11 September, 2013 he arrived at the Boardwalk Project site at approximately 6:00am and went to his office. He says that at approximately 6:30am he and another Smithbridge employee, Brendan Trass who at that time was a Supervisor for Smithbridge, went into the smoko room to conduct a pre-start meeting with the Smithbridge and Universal Cranes workers. That was something that happened each day. A number of Smithbridge and Universal Cranes workers were already present and were sitting in the chairs in the room. In particular, Mr Navarrete says there was:
a)Jamie Beadle, who at that time was a crane operator for Universal Cranes;
b)Richard Brent, who at that time was a crane operator for Universal Cranes;
c)Mick Streeter, who at that time was a crane operator for Universal Cranes;
d)Billy Wise, who at that time was a dogman for Smithbridge;
e)Mick Sutherland, who at that time was a crane operator for Universal Cranes;
f)Phillip Dayman, who at that time was a mechanic for Smithbridge; and
g)Nathan Mangu, who at that time was a boilermaker for Smithbridge.
Mr Navarrete gave evidence that he had just started to go through the pre-start material for the day when he saw Mr Churchman and two other men walking along the breezeway between the demountables towards the door of the smoko room. Mr Navarrete says that Mr Churchman and the two other men then entered into the smoko room and stood near the doorway to the smoko room. Mr Navarrete identified Mr Churchman. His evidence was that the other two men were wearing black CFMEU shirts and one of the men was wearing a black hard hat with “CFMEU” written on it.
When Mr Churchman and the two men entered the smoko room Mr Navarrete stopped the pre-start meeting. Mr Navarrete says that one of the men wearing a CFMEU shirt identified himself to Mr Navarrete by saying: “I am Jody Moses. I’m from the CFMEU.” The other person who was wearing a black CFMEU shirt did not introduce himself to Mr Navarrete.
According to Mr Navarrete, Mr Moses said to Mr Navarrete that he wanted “to speak to the boys without you”. Mr Navarrete agreed but told Mr Moses that he had to wait until the pre-start meeting was completed. Mr Moses agreed. He, Mr Churchman and the other CFMEU person exited through the doorway and Mr Navarrete saw them walk along the breezeway towards the steps. Mr Navarrete continued the pre-start meeting. It finished at approximately 6:40am.
After the pre-start meeting finished Mr Navarrete went to find Mr Moses, Mr Churchman and the other CFMEU person. He found them standing outside, approximately 10 to 15 metres away from the smoko and office buildings. Mr Navarrete told them the meeting had finished and they could talk to the workers in the smoko room. According to Mr Navarrete’s evidence, he walked back to his workstation in the office room and sat down. From there he saw Mr Moses, Mr Churchman and the other CFMEU person walk into the smoko room.
In his affidavit evidence, he says that from where he was sitting he could see the door to the smoko room and it was open. Through the open door Mr Navarrete could see Mr Brent and Mr Mangu sitting at a table. The window near his workstation was also open.
Mr Navarrete swears that after Mr Moses, Mr Churchman and the other CFMEU person entered the smoko room he heard Mr Moses say words to the effect: “Who here are union members?”. He swears that he heard Mr Beadle say in response words to the effect: “I am a union member.” He swears that he then heard both Mr Wise and Mr Trass say in response, words to the effect: “I am not a union member.”
According to Mr Navarrete Mr Moses then said words to the effect:
Smithbridge employees won’t be going back to work today if you don’t sign up to the CFMEU.
Mr Navarrete then heard Mr Moses describe in substance that the CFMEU was a union for construction workers. Mr Moses started talking about the benefits that people obtained when they joined the CFMEU. Mr Navarrete swears that Mr Moses spoke about travel insurance, cheap loans, lawyers and that CFMEU members get better pay rates when an EBA was in place. Mr Navarrete also recalls that Mr Moses went through the benefits quickly and did not spend a lot of time describing the details of the benefits.
According to Mr Navarrete, at that point the discussions in the smoko room became quite heated. He reached that conclusion because the voices got louder and the tone of the voices became angry. Mr Navarrete says that he heard Mr Brent say loudly to Mr Moses words to the effect: “This is not the way to get people into the union, this is bullying.”
According to Mr Navarrete, Mr Moses then said words to the effect:
Smithbridge employees have five minutes to decide.
Mr Navarrete then saw Mr Moses, Mr Churchman and the other CFMEU person walk out the door of the smoko room and start walking down the breezeway towards the stairs.
About five minutes later, Mr Navarrete claims that he saw Mr Moses, Mr Churchman and the other CFMEU person walk back along the breezeway and enter the smoko room. Mr Navarrete heard Mr Moses say words to the effect: “Have you made a decision?” In response, Mr Navarrete says that he heard one of the Smithbridge employees, either Mr Trass or Mr Mangu, say to Mr Moses words to the effect: “We want more time to decide, we want to research on the internet before we do anything.” Mr Moses said words to the effect: “I don’t understand why you want more time to research more information about the CFMEU.”
Mr Navarrete heard some voices (including Mr Trass and Mr Mangu) say loudly and, in what sounded to him like a heated tone, words to the effect: “This is bullying . You can’t force us to join a union.”
Mr Navarrete claims that Mr Moses then said words to the effect:
You have to join the union. This is the way it will be. You have to join the union otherwise you won’t be able to work onsite and we will make sure you don’t work on site. You have 48 hours to decide and we will be back on Friday.
Mr Navarrete says that shortly after this, at about 7:15am, he saw Mr Moses, Mr Churchman and the other CFMEU person walk out of the door of the smoko room, down the breezeway and towards the stairs. Mr Navarrete says that he knows this because Mr Navarrete looked at the time on his computer as they left. However, instead of exiting the breezeway using the stairs, the three entered the offices room. Mr Navarrete greeted them and Mr Churchman then said to him words to the effect: “We will be bringing back some booklets about the CFMEU.”
Mr Moses, Mr Churchman and the other CFMEU person then left the office building and Mr Navarrete saw all three walk down the breezeway towards the stairs.
Mr Navarrete went into the smoko room. The workers were still there. He claims that he said to Mr Trass: “Did they really tell you that you won’t be able to start work if you didn’t sign up to the CFMEU?”. Mr Trass replied: “Yes. What’s the deal with Albert? What does Albert want us to do?”
The reference to “Albert” is a reference to Mr Albert Smith, the person said to be the ultimate owner of Smithbridge.
After some further conversation, each of the workers left the smoko room to commence work for the day. Mr Navarrete says that he then returned to his workstation and telephoned Mr Alan Bell, the General Manager of Smithbridge. He told Mr Bell about what had happened in the smoko room. Mr Bell told him to record what had happened and send it to him in an email.
Despite that, when he finished his call with Mr Bell Mr Navarrete did not send an email to Mr Bell. Rather, he says that he went to supervise the work that the Smithbridge and Universal Cranes workers were performing. However, at around 10:30am, Mr Navarrete returned to his workstation and wrote an email which, he swears: “set out in as much detail as possible my recollection of what had occurred in the smoko room that day”. At around 10:37am, Mr Navarrete sent that email to Mr Bell. Mr Navarrete copied in Mr Mark Happer, the Operations Manager of Smithbridge. The email was in these terms (errors in the original):
Hi Alan,
Further to our conversation this morning regarding the CFMEU having a “meeting” with the Smithbridge’s employee, see below for more details.
Smithbridge Project Manager: Nicolas Navarrete (NN)
CFMEU representative : Jody Moses (JM) – Organiser
At 6.30am today the 11^th of September 2013
- JM told NN that he wanted to have a chat with the Smithbridge employees (not including NN).
- NN reply to wait until prestart is completed
- JM agreed
- NN let JM talk to SBA employees after pre start
- NN herd JM said that SBA employees won’t be able to go back to work today if SBA employees don’t sign up to CFMEU. SBA employees confirmed to NN that JM told them not to start work if not signed up to CFMEU
- JM quickly described what is CFMEU to the SBA employees
- Richard Brent told JM that this is not the way to get people into union. This is Bullying.
- JM told SBA employees that they have 5 minutes to decide,
- 5 minutes later JM came back with other union members.
-SBA employees told JM and union members that they want more time to decide, they want to research on internet more information about CFMEU
- JM and union members don’t really understand why search more info about CFMEU.
- SBA employees told CFMEU members that this is bullying, they can’t force them to Join UNION.
- CFMEU members told SBA employees that this is the way it will be. YOU have to join union otherwise you will not be able to work onsite. We will make sure that you won’t work on site.
-CFMEU told SBA employees they have 48H to decide.
End of meeting around 7.15am
Kind Regards
Nicolas NAVARRETE
Shortly after Mr Navarrete sent his email to Mr Bell and Mr Happer, Mr Bell called him and asked him who was present in the meeting that had occurred earlier that morning. Mr Bell asked Mr Navarrete to include in his email the names of those who were present in the meeting earlier that morning. In accordance with that request at around 10:52am, Mr Navarrete sent another email to Mr Happer copying in Mr Bell in which Mr Navarrete gave a list of the people who were present at the meeting. In the second email Mr Navarrete also noted that Mr Moses was present and that Mr Moses was accompanied by a CFMEU member who was the Hutchinson delegate and another CFMEU member of an unknown name. The reference to the “Hutchinson delegate” in the email is a reference to Mr Churchman. The list of Smithbridge workers who attended the meeting was incomplete because Mr Sutherland and Mr Dayman were not included in the list.
Mr Navarrete gave evidence that at around 6:30am on Friday, 13 September 2013, he conducted another pre-start meeting. He recalls that Mr Trass, Mr Wise, Mr Brent, Mr Sutherland, Mr Mangu and Mr Streeter were present. When he had nearly finished going through all of the pre-start material for that morning Mr Churchman approached the smoko room. When Mr Navarrete had finished going through the pre-start material Mr Churchman entered the smoko room and stood near the doorway to the smoko room. Mr Churchman addressed the workers and provided the answers to some questions about cost and the benefits of joining the CFMEU. Mr Navarrete recalls that during the meeting, Mr Brent and Mr Churchman had an exchange of words to the following effect:
Mr Brent:The way Jodie Moses approached us on Wednesday was not the way to do it.
Mr Churchman: Yes I agree, that’s not the way it should happen, Jodie is new and that’s the way he approaches it. I will bring back the paperwork and will give it to Nick.

During the meeting Mr Navarrete saw that Mr Churchman had some small booklets about the CFMEU with him and at the end of the meeting Mr Churchman handed him four or five copies of the booklets.
Mr Churchman then left the smoko room. Mr Navarrete recalls that this was around 7:00am because he checked his phone as Mr Churchman left.
Mr Navarrete swears that at approximately 1:50pm on Wednesday, 18 September 2013, he was standing under the breezeway between the office building and the smoko building near the steps, when he saw Mr Moses and Mr Churchman walking over from the rear entrance of the site towards him. Mr Moses and Mr Navarrete then had a conversation about the Smithbridge employees joining the CFMEU. Mr Navarrete told Mr Moses that he could speak to “the boys” during their lunch break.
Mr Navarrete then observed Mr Moses go and talk to Mr Brendan Trass who was working a short distance away. After about 10 minutes Mr Moses came back to where Mr Navarrete was standing with Mr Churchman. Mr Moses and Mr Navarrete then had a discussion to the following effect:
Mr Moses:I spoke with Brendan and he says the boys don’t want to join the union. Any of the Smithbridge employees who do not join the union by lunchtime Friday, 20 September, won’t be allowed on the boardwalk project or any other CFMEU site in Queensland.
Mr Navarrete: I can’t tell the boys to join or not join the union they will make their own decision.
Mr Moses (raised voice): They have to join.
Shortly after his interaction with Mr Moses Mr Navarrete decided to go and see Mr Swift to tell him what had happened. Mr Swift’s office was in the Hutchinson offices at the front entrance to the Boardwalk Project site some distance from where the Smithbridge offices were. Mr Navarrete found Mr Swift and had a conversation with him about Mr Moses coming onto the site.
Mr Navarrete sent another email to Mr Happer, Mr Bell and Mr Smith about his interactions with Mr Moses, Mr Churchman, Mr Swift and the Smithbridge and Universal Cranes workers that day.
On Friday, 20 September 2013, at approximately 11:30am, Mr Navarrete recalls having another discussion with Mr Moses to the following effect:
Mr Moses:I want to speak with the Smithbridge and Universal Cranes workers.
Mr Navarrete: They haven’t had lunch yet, they will have lunch around 12 or 2pm.
Mr Moses:The boys who want to join the union I will fight for them if anything happens, but the boys who don’t join willingly, we won’t stand for them.
Nathan Mangu is a Boilermaker. He has also, from time to time, driven cranes. On 11 September, 2013 he was, and continues to be employed by Smithbridge.
Mr Mangu gave evidence that in mid-September, 2013 at around 6:00am or 7:00am, he attended a pre-start meeting hosted by Mr Brendan Trass, Smithbridge Supervisor, in the smoko room at the Boardwalk Project site. According to Mr Mangu, pre-start meetings were usually held in the smoko room and usually Mr Trass would conduct the pre-start meetings. He recalls that Mr Navarrete was present at that pre-start meeting on that day. The pre-start meeting went for around 30 minutes and after it finished the Smithbridge and Universal Cranes workers went to work.
His evidence is that later that morning, he was in the smoko room having his smoko with a number of other employees. He can remember that Mr Trass, Mr Brent, Mr Wise and Mr Sutherland were also there. Mr Navarrete came into the smoko room and told the employees that “the union were going to come in and have a chat with us”. Mr Navarrete then left and shortly thereafter a man came into the smoko room wearing a black hat marked with “CFMEU” and “Know Your Rights” stickers, a navy polo shirt with CFMEU branding on it, an orange hi-vis vest and jeans. The man approached the group, put his thumbs in his jeans front pockets and then flexed his arms by pushing them out from his body, and then said words to the effect of, “My name is Mo and I am here to tell you how it is.” Mr Mangu knows that person to be Mr Moses. According to Mr Mangu, Mr Moses said words to the effect:
This is a union site. You will not go to work unless you sign up to the union. There will be no work until you sign up.
In response, Mr Mangu asked Mr Moses:
Is your name Ho and your last name Mo?
According to Mr Mangu, Mr Moses did not appear to understand what he had said. Mr Moses then started to talk about the benefits of being in the CFMEU, such as travel insurance and legal advice. Mr Mangu can no longer recall the specific words that were used by Mr Moses.
While Mr Moses was talking about the benefits of being in the CFMEU he began passing around forms for the workers to sign to join the CFMEU, along with some CFMEU stickers. Mr Moses also recalls that Mr Moses handed a bundle of flags to Mr Brent and told Mr Brent to put the flags on a crane which was working at the site.
After Mr Moses handed out the forms, the stickers and the flags, Mr Mangu swears that he said words to the effect:
You’ve got five minutes to decide to sign up.
Mr Moses then left the smoko room.
Shortly after Mr Moses had left, Mr Mangu saw Mr Trass leave the smoko room and return with Mr Navarrete. There was conversation between some of the employees and Mr Navarrete. All of the Smithbridge and Universal Cranes workers in the smoko room then went back to work.
Mr Mangu recalls that approximately one week later, in mid-September 2013 at around 10:00am he was in the smoko room taking a smoko break with some other workers. Mr Trass and Mr Wise were present along with another person from Smithbridge or Universal Cranes that Mr Mangu cannot now identify. Sometime during the smoko break, Mr Moses came into the smoko room. Mr Moses was accompanied by another person but Mr Mangu does not recall who that person was or what that person was wearing.
Mr Moses started to talk to the people present, in substance, about the benefits of being in the CFMEU. Mr Mangu does not recall the specifics of what Mr Moses said. Mr Mangu did not take much notice of Mr Moses or what he was saying, as Mr Mangu was put off from his first encounter with him and did not want anything to do with him.
From August 2013 to September 2013, Mr Dayman was engaged by Smithbridge as a subcontractor crane operator and fitter to work at the Boardwalk Project site. Mr Dayman swears that at about 6:30am on 11 September, 2013 he attended a toolbox meeting that took place, he says, in the breezeway between the office room and the smoko room used by the Smithbridge and Universal Cranes workers.
According to Mr Dayman, Mr Navarrete led that toolbox meeting. Also present according to Mr Dayman was Mr Trass, Mr Navarrete, Mr Beadle, Mr Wise, Mr Mangu, Mr Brent and Mr Tony Whakaneke. Mr Dayman says that at that meeting the workers were gathered at the top of the stairs and were leaning on the rails around the stairs.
While Mr Navarrete was talking to the assembled group three people approached. Mr Dayman recognised Mr Churchman and another of the people as a CFMEU person. He did not know the third person at the time but has now become aware that it was Mr Moses. Both Mr Moses and the other CFMEU person were wearing a black CFMEU shirt and a black hat with CFMEU stickers on it. Mr Dayman claims that while the meeting was underway the other CFMEU person (not Mr Moses) interrupted the meeting and said words to the effect: “We want to talk to you about joining the union.” Mr Navarrete cut the person off and said that they were having a meeting and that they should come back later. The three then left and walked about 25 to 30 metres away.
According to Mr Dayman the meeting lasted about half an hour and finished at approximately 7:00am. When the toolbox meeting finished Mr Navarrete called Mr Moses, Mr Churchman and the other CFMEU person back over. According to Mr Dayman he was half sitting on the railing of the stairs next to Mr Trass. Mr Brent was leaning against the rail at the top of the step and Mr Mangu was to the right of him. Mr Beadle was to the immediate right of him and Mr Whakaneke was standing next to Mr Mangu. When Mr Moses, Mr Churchman and the other CFMEU person reached the bottom of the stairs the unidentified person said to Mr Navarrete that he couldn’t be at the meeting because he was management. To Mr Dayman’s observations, Mr Navarrete left the meeting and walked into the office room. The door to the office building was left open.
The other CFMEU person started the meeting by saying words to the effect of:
You guys have got to join the union or you will be kicked off site.
According to Mr Dayman, the speaker was very forceful when he said those words and he repeated them a few times. Mr Dayman recalls that he also said that if the workers did not join the CFMEU:
You’ll be kicked off site, we’ll just shut down your cranes.
After some interjections from some of the other workers, Mr Dayman says that the unidentified CFMEU person started to explain the benefits of being in the CFMEU and talked about funeral plans, life insurance and death cover. Conversation ensued between the workers and the three visitors.
According to Mr Dayman, Mr Moses took over talking from the unidentified CFMEU person. Mr Moses introduced himself as “Mo” and said words to the effect:
We know Albert Smith and we have made it very difficult for Universal Cranes in Brisbane until they signed a union EBA and we will do the same with Smithbridge.
Mr Moses and Mr Trass then had a conversation to the following effect:
Mr Moses: If you don’t become a member of the union then you will be kicked off site.
Mr Trass: Well we’re up here to work mate. We’re up here alone and away from home. I don’t want to spend a long weekend in Gladstone with no work.
After a little more discussion, Mr Moses then started to talk about the benefits of being in the CFMEU. Mr Dayman does not recall specifically what he said. After Mr Moses had finished talking about the benefits of being in the CFMEU, Mr Trass and Mr Dayman had a conversation with Mr Moses to the following effect:
Mr Dayman: Mate you don’t have to be so aggressive to do this. If you tell me or order me to do something and I have a choice to do this, I will automatically get my back up. Wouldn’t it be more reasonable to come up and chat with someone first?
Mr Moses:You’ve got five minutes to think about it.
Mr Trass:Can’t we have until at least Friday to think about it? We want to know more about it.
After this conversation, the unidentified CFMEU person started to hand out pamphlets to the Smithbridge and Universal Cranes workers who were present.
Mr Moses and Mr Trass then had a conversation to the following effect:
Mr Moses: When are you guys going to put the flag on the crane?
Mr Trass: It’s not our crane and we do not have the right to do that.
Mr Moses: You better get it on there. We will be back on Friday.
After this exchange Mr Moses, Mr Churchman and the unidentified CFMEU person left. Mr Navarrete returned and there was conversation with some of the workers about whether they had to join the CFMEU. After that conversation they commenced their working day.
By Thursday, 12 September 2013, Mr Dayman decided that he did not want to join the CFMEU. However, Mr Dayman was also concerned that if he did not join the CFMEU he would continue to be bullied, harassed and intimidated until he joined, and that if he continued to refuse to join he might be kicked off the site. Mr Dayman therefore decided to quit working at the site.
Richard Brent is a crane operator. From 2012 to 2014, Mr Brent was the sole director of R and D Piping Pty Ltd. From about 2012 to July 2014, R and D Piping was engaged to provide Smithbridge and Universal Cranes with crane operating and general labour services at a number of different projects. Mr Brent provided these services on behalf of R and D Piping. Mr Brent started work at the Boardwalk Project site on or about 2 September, 2013. Mr Brent would generally arrive at the site by about 6:00am each morning.
Mr Brent gave evidence that on 11 September, 2013 at around 6:00am he was in the smoko room attending a toolbox meeting which was being conducted by Mr Navarrete. Present in the smoko room was Mr Beadle, Mr Trass, Mr Wise, Mr Mangu, Mr Dayman, Mr Whakaneke and Mr Streeter.
Mr Brent recalls that he was sitting on a chair in roughly the middle of the smoko room facing the air conditioning unit of the smoko room. From where he was sitting Mr Brent could look out of the two windows of the smoko room. The window on his left looked out over towards the rear entrance to the Site and the window on his right looked over the breezeway. While Mr Navarrete was conducting the “toolbox” meeting Mr Brent saw three men walking along the breezeway towards the smoko room door. Mr Brent did not see where the three men went and they were only in his eyesight for a short period of time. One of the men was Mr Moses and another was the Hutchinson CFMEU delegate for the site, Mr Churchman. Mr Brent does not know the identity of the third man.
According to Mr Brent, the “toolbox meeting” finished at around 6:30am and Mr Navarrete left the smoko room. Shortly after Mr Navarrete left the smoko room, Mr Moses, the Hutchinson delegate and the other man walked into the smoko room. Mr Brent saw that the Hutchinson delegate was wearing a work shirt which had Hutchinson written on the chest and a hard hat with “CFMEU” stickers. The other two men were dressed in shirts which had “CFMEU” written on them and had hard hats with “CFMEU” stickers.
According to Mr Brent, neither Mr Moses nor the Hutchinson delegate introduced themselves by their names. They only said that they were from the CFMEU. The other man did not introduce himself or say anything at all. Soon after Mr Moses, the Hutchinson delegate and the other man entered the smoko room, Mr Navarrete came back into the smoko room. Mr Navarrete and either Mr Moses or the Hutchinson delegate then had a conversation to the following effect, although Mr Brent cannot recall who spoke to Mr Navarrete:
Mr Moses/ Hutchinson delegate:     We want to talk to the boys.
Mr Navarrete:  It’s not a good time, we have to go down for the Hutchies pre-start meeting.
Mr Moses/ Hutchinson delegate:    What time do the boys have smoko?
Mr Navarrete:  It depends, around 10:30ish
The three men left the smoko room.
Later that day, Mr Brent believes at about 11:30am, Mr Moses and the Hutchinson delegate came into the smoko room. Present in the smoko room at that time was Mr Beadle, Mr Navarrete, Mr Trass, Mr Wise, Mr Mangu, Mr Dayman, Mr Whakaneke and Mr Streeter.
Mr Brent swears that shortly after Mr Moses and the Hutchinson delegate entered the smoko room the Hutchinson delegate started to hand out pamphlets about the CFMEU to the workers who were present.
Mr Moses and Mr Brent then had the following exchange:
Mr Moses:Universal Cranes has an EBA with the CFMEU so they should all be in the union. Are you all in the union?
Mr Brent:Yeah, I’m not in the union.
Mr Moses: Why?
Mr Brent: I haven’t had a need to join the union.
Mr Moses:The people who work for Smithbridge don’t have an EBA, Albert won’t sign an EBA so you people probably won’t be in the union. This is a union job site and everyone who works on this site must be in the union. You don’t have to join the union, but if you want to work on this site you must join. If you don’t want to join that’s fine I will take your name to Hutchies and request that you be replaced with workers who are more team players. There are a lot of union members here in Gladstone who are keen to get onto this job. The CFMEU got Smithbridge this job by putting their name forward out of a list of contractors. Now Smithbridge have got workers onsite who aren’t in the union and Smithbridge knew that this was a union site.
There was then a discussion between some of the workers who were present and Mr Moses and the Hutchinson delegate about the benefits of joining the union such as dental cover, accidental death cover and legal representation. Mr Brent can no longer recall the specific details of that discussion. When this discussion ended Mr Moses said: “Who’s going to join?”
According to Mr Brent no one responded. Mr Moses and Mr Brent then had a conversation to the following effect.
Mr Moses:If no one joins the machinery outside isn’t going to start.
Mr Brent:You can’t do that. You can’t come in here and bully us into joining. Come in here and sell us a product, don’t brow beat us into joining. What are the membership fees, and what are the monthly and fortnightly payments?
Mr Brent does not recall precisely what Mr Moses said in reply, but Mr Brent does recall that he was unable to answer his questions. Mr Moses then said: “This is a union site and if you want to work here you’ve got to join. I’ll give you five minutes to think about it.”
Mr Moses and the Hutchinson delegate then left the smoko room. Mr Brent did not see where they went.
After both Mr Moses and the Hutchinson delegate left there was discussion between the employees about the requirement to join the CFMEU. Mr Brent recalls that one employee was very concerned and was particularly worried about being sent back to the Brisbane yard.
According to Mr Brent, Mr Moses and the Hutchinson delegate came back to the smoko room. After entering the room, Mr Moses spoke about the benefits of joining the CFMEU. Mr Brent’s evidence was that Mr Moses mentioned benefits such as access to shopping discounts. After Mr Moses finished talking about the benefits of joining the union, Mr Moses and Mr Brent had a conversation to the following effect:
Mr Brent:No, we are not going to join today. We want to read through your pamphlets and have a look on-line.
Mr Moses:I’ll give you all 48 hours to decide and then I’ll be back on Friday.
Mr Moses and the Hutchinson delegate then left the smoko room.
According to Mr Brent, on 18 September, 2013 at approximately 11:00am, he was walking back through the site to the smoko room to take a smoko break with other employees, namely, Mr Navarrete, Mr Trass, Mr Wise, Mr Whakaneke, Mr Mangu and Mr Sutherland. Mr Mark Happer, Operations Manager for Smithbridge, was also with the group. While the group was making its way back to the smoko room, Mr Moses, the Hutchinson delegate, and a third unidentified man approached the group. The unidentified man was wearing clothing that had CFMEU logos on it.
Mr Brent saw Mr Navarrete introduce Mr Happer to Mr Moses, the Hutchinson delegate and the other person. There was a discussion amongst the group and Mr Brent does not recall precisely what was said in this discussion, although he does recall Mr Happer saying words to the effect:
It is up to the boys if they join the union or not. Smithbridge do not force the boys to join the union.
Mr Brent gave evidence that at around 9:30am or 10:00am on 20 September, 2015 he was sitting in the smoko room having a break. Also there was Mr Trass, Mr Wise, Mr Mangu and Mr Sutherland. Two men came into the smoko room. One of the men was the Hutchinson delegate. The other man introduced himself and told the group that he was the CFMEU area representative. After introducing himself, Mr Brent says that the CFMEU Area Representative started going over similar matters that Mr Moses had discussed on earlier occasions, such as the benefits of joining the CFMEU. Mr Brent decided to join the CFMEU although he would not deal with Mr Moses again.
Mr Moses gave evidence in these proceedings. Before 11 September, 2013 he had been to the Boardwalk Project site on a couple of occasions but had not addressed the works before that.
Mr Moses does not recall how or why his attendance at the Project on 11 September 2013 was organised. He thought that “in general terms, [Mr Churchman] arranged the meeting with the Smithbridge workers which is a usual step for the Union to take when a new contractor starts at a Project”.

Mr Moses says that on the morning of 11 September, 2013 at the morning smoko break, at around 8:00am or 9:00am, he attended the Project and met with the Smithbridge and Universal Cranes workers in the smoko room.
Mr Moses says that there were approximately six individuals, four workers, Mr Churchman and him. Despite his evidence that there were four workers present, Mr Moses deposes that the individuals present were Brendan Trass, Richard Brent, Nathan Mangu, Billy Wise and Mick Sutherland. He swears that Philip Dayman was not present at that time.
Mr Moses says that the purpose of his discussion with the workers was to introduce himself to them and have a “casual conversation with them about their employment at the Project and any concerns that they had in relation to their terms and conditions of employment or safety conditions at the Project. I also wanted to invite the Workers to become members of the Union and to explain to them the benefits of joining the Union.” No other witness gave evidence that there was any discussion about terms and conditions of employment or safety conditions at the Project.
Mr Moses says that the discussion was very informal in nature and it was not chaired, convened or addressed by him or Mr Churchman. Rather, he said that they sat in the smoko room with the workers while they ate their smoko and had a discussion with them about various matters in an informal way. For example, in addition to talking about work-related matters, they also had a discussion about non-work matters like the rugby league. No other witness gave evidence that there was any discussion about the rugby league.
Mr Moses says that he remembers that in the breezeway between the smoko room and the office room there was an ice machine that was running when he entered the room. He does not say how noisy it was.
Mr Moses says that the smoko room had “all of the windows and doors closed and the air conditioning running” on 11 September, 2013. That seems to be based upon his evidence that:
September is a humid time of year in Central Queensland. Because of the hot and humid conditions, where air conditioners are available, for example, in the smoko room and in Nicholas’ office, they run ‘24/7’. This is common as it is necessary to cool the workers who perform physical labour down during their breaks.
However, there is no evidence to suggest that was the practice on the Boardwalk Project Site.
Mr Moses says that during the course of the discussion in the smoko room on 11 September, 2013 he explained to the workers what the CFMEU was about and why he thought that they should join the CFMEU. Mr Moses swears that the discussion proceeded in a casual and amicable way and he did not recall any of the workers expressing any strong agreement or disagreement with the invitation to join the CFMEU.
In both his affidavit evidence and his cross-examination, Mr Moses expressed a level of ambivalence towards recruiting the Smithbridge and Universal Cranes workers to the CFMEU. He pointed out that he was also the organiser responsible for the construction sites offshore from Gladstone referred to in the evidence as the GLNG Project and the great many more workers there were at that site.
Mr Moses’s evidence is that at the end of the discussion about CFMEU membership, he left the workers with some membership forms and some business cards and said to them words to the effect:
There are my cards. Let us know if you want to join. Gregg is your delegate and can sign you up if you decide you want to join.
Aside from the much larger “paddock to graze on” represented by the GLNG Project (as Mr Moses put it in his cross-examination) he also suggests that he did not need to press the issue of membership very much on that day because the CFMEU already had a delegate at the Boardwalk Project. He says that he did not need to try to get all of the workers to join the Union in one go because they would continue to have access to, and discussions with, Mr Churchman about the issue if they wished. He thought that if the workers were going to join the CFMEU they would eventually do so via Mr Churchman.
Mr Moses denies that he said words to the effect that if they did not join the Union then no work could occur by the workers that day and they would be removed from the Project. He also denies that he said words to the effect that it was a Union site and if they wanted to work on the Project they had to join the Union. He denies that he only gave the workers five minutes to think about their decision to join the CFMEU. He denies that he said words to the effect that “I would give them 48 hours to decide and that I would return on 13 September, 2013”.
Mr Moses says that at no time prior to attending the Boardwalk Project site on 13 September, 2013 did he discuss with Mr Churchman, in any detail, what he intended to say or do while at the site that day. According to Mr Moses there was no need to do that because “it was to be a run of the mill discussion to introduce ourselves and the Union”.
According to his evidence, Mr Moses did not attend the Boardwalk Project site on 13 September, 2013. He cannot recall whether he attended the Boardwalk Project site on 18 September 2013, but he may have done so. Similarly, Mr Moses does not recall that he attended the Boardwalk Project site on 20 September, 2013 “although I may have done so”.
Mr Gregg Churchman gave evidence that he is a member and delegate of the CFMEU. He is employed by Hutchinson Builders as an Industrial Relations Officer.
Mr Churchman gave evidence that on or about 10 September, 2013 he organised with Mr Moses for him to meet with the Smithbridge and Universal Cranes workers at the Boardwalk Project site. Mr Churchman says that later on 10 September, 2013 he met with Mr Navarrete in his site office. It was the first time that they had met. Mr Churchman claims that he requested to talk to the Smithbridge employees at some stage as a group. Mr Churchman says that Mr Navarrete suggested that a meeting following “the smoko meeting” the following morning would be suitable.
According to Mr Churchman on 11 September, 2016 Mr Moses and he held a meeting with some of the employees of Smithbridge and Universal Cranes to discuss union membership “and related matters”.
According to Mr Churchman before the meeting on 11 September, 2013 Mr Moses and Mr Churchman had a discussion during which Mr Moses said to him words to the following effect: “Some of the boys are a bit unsure. Let’s just go in there and sell the package.” It is not clear how Mr Moses formed that conclusion given that he had not met the workers before that conversation. Mr Churchman says that he agreed with that approach.
Mr Churchman swears that he is unsure as to when the meeting was held but that his best recollection was that it was in the smoko break at around 9:30am. He is “all but certain that the meeting did not occur before work or after a pre-start meeting”. He had however, thought that the meeting occurred earlier in the day but by the time of the swearing of his affidavit, his recollection had changed because “I now remember that the men were finishing eating their morning tea while Jody and I were speaking to them and this never occurs at or shortly after pre-start meetings because they are not a meal break. Further, our meeting was held in the smoko shed which is where the men took their smoko breaks but that is not where the pre-start meetings were held.”
According to Mr Churchman, Mr Navarette did not attend the meeting. There were approximately six employees of Smithbridge in attendance. Mr Churchman says that there was no one else present from the CFMEU.
Mr Churchman claims that Mr Dayman was not at the meeting and that “I do not recall anyone by that name working at the Project.”
Mr Churchman confirms that the meeting took place in the smoko room. Mr Churchman says that while Mr Moses and he conducted the meeting they kept the door closed.
Further Mr Churchman swears that: “I personally closed the doors and the windows and turned the air conditioning on prior to the meeting, because it was a humid and hot September day and because that is my standard procedure (except where the air conditioning was already running which was sometimes the case).”
In cross-examination Mr Churchman said that Mr Moses closed the door. Mr Moses said in cross-examination that Mr Churchman closed the door.
At the commencement of the meeting Mr Churchman said words to the effect: “Are there any hirers and firers in the room?” A negative response was received.
Mr Churchman says that at that meeting “Jody and I gave the ordinary sort of presentation that we give about the benefits of union membership. It is a presentation I have given on countless occasions.”
Mr Churchman swears that: “Jody and I explained to the employees what we refer to as ‘the package’. That involved explaining the range of benefits that come with union membership, the particular working conditions that the union had secured through its agreements, the insurances and funds that come with union membership and working under a Union enterprise agreement.”
Mr Churchman says that during the meeting either Mr Moses or he said words to the effect: “We would rather have union members working on the site and enjoying the benefits of membership than non-members working on the site.”
Mr Churchman says that he recalls during the meeting one of the employees “stating that they did not have to join the union”. Mr Churchman says that he responded by saying: “No, you don’t, but we would rather have union members on site getting all the benefits of an enterprise agreement”.
Mr Churchman’s evidence is that the meeting was over fairly quickly and was not very “interactive”.
Mr Churchman swears that at no stage during the meeting did Mr Moses say: “Smithbridge employees won’t be going back to work today if you don’t sign up to the Union”.
Mr Churchman swears that Mr Brent did not say to Mr Moses during the course of the meeting : “This is not the way to get people into the union, this is bullying.”
Mr Churchman swears that Mr Mangu did not make any jokes about Mr Moses being homosexual. He denies that Mr Moses said: “Smithbridge employees have 5 minutes to decide” or words to like effect. His evidence is that “Jody and I invited the employees to take the application for membership cards home and consider whether they wanted to join the Union or not. We advised that I would be back in a couple of days to allow them to think it over.”
Mr Churchman swears that the meeting was not punctuated by them leaving the smoko room and then returning to the smoko room.
On 13 September, 2013 Mr Churchman again attended upon the Smithbridge and Universal Cranes workers, during the smoko break to follow up on the earlier discussion and to see whether the men had any further questions arising out of the earlier meeting. Mr Churchman says that he reported back to the workers about the membership fees and other inquiries he says he was asked to make.
Mr Churchman says there was a conversation to the following effect:
Mr Brent:You don’t seem to know what you are talking about.
Mr Churchman: Jody’s new and I am only a delegate and we are doing the best we can.
Mr Churchman swears that apart from that exchange with Mr Brent, the “follow up” meeting on 13 September, 2013 was an uneventful meeting.
Mr Churchman recalls Mr Moses attending the Boardwalk Project site on 18 September, 2013.
Contrary to Mr Navarrete’s evidence, Mr Churchman says that he approached Mr Trass to discuss the union membership issues, not Mr Moses. Mr Churchman swears that he spoke to Mr Trass about having a meeting and Mr Trass told him to give them five minutes and there could be a meeting during smoko in the shed. Mr Churchman says that approximately five to ten minutes later, he went to the amenities shed and spoke with Smithbridge employees without Mr Moses. No other witness gave evidence of such a meeting.
Mr Churchman does not recall Mr Moses attending the Boardwalk Project site on 20 September, 2013 “but he could have done so”.
Mr Churchman denies witnessing Mr Moses ever make any of the statements about CFMEU membership that he is alleged to have made in these proceedings.

Consideration

As I recently recorded in another decision (Construction, Forestry, Mining and Energy Union v Class 1 Form Pty Ltd & Ors [2017] FCCA 696):
13. The applicant bears the onus of proof. In Australian Building and Construction Commissioner v Hall [2017] FCA 274 Flick J examined the onus and standard of proof to be applied in applications for the imposition of pecuniary penalties for contraventions of the Fair Work Act and how the onus and standard of proof was affected by ss.360 and 361 of the Act. Speaking generally of the standard of proof his Honour made the following points (at [18] – [20]):
a) when making findings of fact, due regard must be had to the gravity of the matters alleged: Evidence Act 1995 (Cth), s.140(2);
b) 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; and
c) findings as to a contravention of the Fair Work Act are not findings lightly to be made.
I have set the salient points of the evidence of the witnesses out at length because of the divergence in the various accounts of each of them. Because of that divergence, counsel for the respondents urged that I could not be satisfied to the requisite standard that Mr Moses uttered the words of which he now stands accused. I was referred to a passage from the judgment of Sir Owen Dixon in Briginshaw at p.359 who, in turn refered to the decision of the primary judge, Martin J:
In the course of reviewing the evidence, which I have summarized above, Martin J. said that all the witnesses gave their evidence well and that he could gather nothing adverse to them from their demeanour. He concluded his reasons for judgment thus :—” I do not know what to believe. I have been very much troubled. I think that Lamprill holds the key. It seems he may have held the pistol at both parties’ heads. I have done my best to decide, but the petitioner must satisfy me that his story is true. I think I should say that if this were a civil case I might well consider that the probabilities were in favour of the petitioner, but I am certainly not satisfied beyond reasonable doubt that the evidence called by the petitioner should be accepted.”
The point made by counsel for the respondents has some substance. However, having regard to the written evidence and that given in cross-examination, I am satisfied on the balance of probabilities, bearing in mind the gravity of what is alleged, that the following facts should be found:
a)A meeting occurred on the morning of 11 September, 2013 in the smoko room as described above. Relevantly, the meeting was attended by Mr Moses, Mr Churchman, Mr Mangu, Mr Brent, Mr Trass, Mr Beadle, Mr Streeter, Mr Wise and Mr Sutherland. I do not accept that it was a pre-arranged meeting as Mr Churchman suggests.
b)Mr Moses and Mr Churchman simply arrived while Mr Navarrete was having a pre-commencement meeting with the Smithbridge and Universal Cranes employees. He asked them to come back after he had finished his pre-start meeting. I think Mr Brent is mistaken when he says that Mr Navarrete asked them to come back after the “Hutchies pre-start meeting”;
c)The meeting took place after the regular pre-commencement or toolbox meeting, but before the employees smoko break later in the morning. I accept Mr Navarette’s evidence that he told Mr Moses and Mr Churchman that they could talk to the workers after he had finished.
d)To the extent that Mr Dayman suggests that the meeting took place outside of the smoko room, I think he is mistaken about that. I am not satisfied that Mr Dayman’s evidence is reliable in any event. I do not accept the account that he gives of the meeting.
e)I think that Mr Brent is mistaken about the meeting taking place later in the day. He puts the time at “around 11.30am” but that cannot be correct because Mr Navarrete sent his first email to Mr Bell just after 10:30am, well before Mr Brent said the meeting took place. I also think that Mr Mangu is mistaken about the time when the meeting took place.
f)I reject Mr Moses evidence and that of Mr Churchman that the meeting took place later in the morning. I do not accept that Mr Churchman had a reason for not being on site early in the morning because he lived in Yeppoon and it took him two hours to drive to work each day. I think it inherently unlikely that he would travel two hours each way, each day, to attend the Boardwalk Project site as his evidence seemed to suggest in cross-examination.
g)The meeting took place in the smoko room across the breezeway from the office from where Mr Navarrete had his desk and workstation.
h)Mr Moses and Mr Churchman attended upon the Smithbridge workers in the smoko room. The door to the smoko room was left open. In making that finding, I reject Mr Moses’s evidence that the air conditioner was on. I formed the view that Mr Moses had no specific recollection that the air conditioner was on. His evidence was reconstruction based upon his claimed generalised experience and what he thought “would have been” the case, namely that air conditioners run “24/7” on building sites such as this. Moreover, Mr Moses gave evidence in cross-examination that Mr Churchman closed the door. Mr Churchman gave evidence that Mr Moses closed the door. I do not accept that either had a recollection that the door was closed at all. I prefer Mr Navarrete’s evidence that the door was open.
i)I accept Mr Navarrete’s evidence that he could hear what was said in the meeting, although not all of it. Whilst I accept that there was an ice machine on the breezeway, I do not accept that its operation, if it was operating, would have created any particular noise. There is no evidence of how noisy the ice machine was when it was operating. Mr Navarrete’s evidence about the state of the door was criticised because he did not mention whether it was opened or closed in his statement to the inspectors from the applicant (exhibit 1). But the omission to deal with that subject in that statement says nothing about Mr Navarrete’s evidence and probably more about the focus of those taking the statement. He was also cross-examined about the state of the door at the “Trade Union Royal Commission” in August, 2014. He could not recall then whether the door was open or closed. He can recall now, but I do not accept that his recollection is now an “obvious attempt to bolster his assertion that he heard the meeting”.
j)I am satisfied that after introducing himself, Mr Moses said to the assembled group words to the effect:
Smithbridge employees won’t be going back to work today if you don’t sign up to the CFMEU.
k)Mr Moses went onto describe in substance that the CFMEU was a union for construction workers. He talked about the benefits that people obtained when they joined the CFMEU. He spoke about travel insurance, cheap loans, lawyers and that CFMEU members get better pay rates when an EBA was in place.
l)At some point Mr Brent said to Mr Moses words to the effect:
This is not the way to get people into the union, this is bullying.
m)Mr Moses replied with words to the effect:
Smithbridge employees have five minutes to decide.
n)Mr Moses and Mr Churchman walked out the door of the smoko room and started walking down the breezeway towards the stairs.
o)About five minutes later, Mr Moses and Mr Churchman walked back along the breezeway and entered the smoko room. Mr Moses said words to the effect:
Have you made a decision?
p)Either Mr Trass or Mr Mangu, said to Mr Moses words to the effect:
We want more time to decide, we want to research on the internet before we do anything.
q)Mr Moses said words to the effect:
I don’t understand why you want more time to research more information about the CFMEU.
r)One of the assembled workers said words to the effect:
This is bullying . You can’t force us to join a union.
s)Mr Moses then said words to the effect:
You have to join the union. This is the way it will be. You have to join the union otherwise you won’t be able to work onsite and we will make sure you don’t work on site. You have 48 hours to decide and we will be back on Friday.
t)Mr Moses and Mr Churchman then left the smoko room.

I accept that Mr Mangu and Mr Brent gave their evidence honestly. That the actual words they report Mr Moses as saying are different to the words reported by Mr Navarrete is not critical. They are to the same effect. That there is variation between the actual words reported is not surprising given that more than three years have passed since the relevant events.
Moreover, none of the witnesses called by the applicant have any obvious cause to give false evidence. As pointed out by senior counsel for the applicant there was no apparent reason for them to do so. It was suggested by counsel for the respondents that I should reject the evidence of the applicant’s witnesses because they had, since 11 September, 2013 talked amongst themselves and others about the day’s events. But the variation between the evidence of each of the applicant’s witnesses tells against any collusion by them. To underscore that point, senior counsel for the applicant submits that both Mr Brent and Mr Mangu subsequently joined the CFMEU. That is inconsistent with any improper motive for their evidence against an officer of the CFMEU. In any event, given the nature of what was said by Mr Moses, it was unremarkable that the Smithbridge employees would talk about the statements made by Mr Moses.
It was only Mr Navarrete that made a note of the conversation held by Mr Moses and the employees. The note, such as it is, appears as his email that I have set out above. It was said in submissions for the respondent that the email contains numerous errors of detail. I am not satisfied that it does. In my view it is consistent with the events as I have found them to be.
The timing of Mr Navarrete’s first email tells against the proposition that the meeting with Mr Moses took place at smoko. It seems more consistent with an earlier meeting recorded a couple of hours later for the reason described by Mr Navarrete in his evidence. I accept his evidence about that.
Senior counsel for the applicant submits that if Mr Navarrete had decided to fabricate his evidence, he would have needed to:
a)have the foresight to begin his fabrication at 10:37am on the morning in question;
b)ensure or otherwise hope that none of the workers present in the 11 September, 2013 meeting gave contrary evidence to his constructed version of the events; and
c)arrange for not one, but three other workers to support his fabricated version of the discussion.
In my view that is entirely unlikely.
I do not accept the evidence of Mr Moses or Mr Churchman in large respects. They disagree in respect of how the meeting came about. Mr Moses was unable to provide any clear explanation as to how it was that he came to be in the company of Mr Churchman at the meeting. However Mr Churchman was able to give specific evidence as to the meeting being arranged the previous day, meeting Mr Moses and a prior discussion as to what they would do in the course of the meeting.
Mr Moses gave unconvincing evidence to the effect that he did not know who was going to be at the meeting, or whether they were members of the CFMEU. Given that the purpose of the meeting was to recruit new members for the CFMEU it seems a little remarkable that Mr Moses did not know who was going to attend. Clearly there would be little purpose in a recruitment meeting if all of the attendees were already members. Moreover, Mr Moses’s evidence about this is in direct contrast with Mr Churchman’s evidence as to Mr Moses prior knowledge. As the applicant argues, both Mr Moses and Mr Churchman claim that there were benefits to union membership and their goal was to sign up as many union members as they could. That seems inconsistent with either of them being ambivalent about whether people joined the union or not.
Mr Moses had been employed as a union organiser for only a matter of weeks on 11 September, 2013. One of his roles was to recruit new members. According to his evidence he had a “far better paddock to graze on” at GLNG in terms of recruiting new members. In those circumstances it seems at the least unlikely that he attended at the Boardwalk Project site with complete ambivalence as to whether he recruited new members.
Mr Moses and Mr Churchman gave different version of events as to how it was that the door to the smoko room came to be closed, how it was that the air conditioner came to be on and how it was that the windows came to be closed. In my view the differences between Mr Moses and Mr Churchman in respect of these matters undermines their respective credibility. That is especially so when neither professes a particularly clear recollection of the relevant meeting. In cross-examination each gave evidence by reference to what “would have” occurred rather then what did occur. That stands in stark contrast to the evidence given by the witnesses for the applicant who were each very clear about what they heard Mr Moses say.
I am satisfied that the applicant has made out its allegation made in paragraph 9 of the statement of claim that:
9. In this meeting Mr Moses, in the presence of Mr Churchman, told the Workers to the effect that:
(a) if they did not join the CFMEU then:
(i) no work would occur by the Workers that day; and
(ii) they would be removed from the Project;
(b) it was a union site and if they wanted to work on the Project they had to join the CFMEU;
(c) the Workers had five minutes to think about it.
I am also satisfied that the applicant has made its allegations in paragraph 10 of the statement of claim that:
10. After some discussion with the Workers, Mr Moses said words to the effect that he would give the Workers 48 hours to decide, and that he would return on Friday 13 September 2013.
The respondents accept that if the applicant made out that aspect of the statement of claim then I should find that Mr Moses engaged in conduct that amounted to a threat of adverse action against the Smithbridge and Universal Cranes employees in contravention of s.346 of the Fair Work Act. I so find.
The respondents also accept that the threats made by Mr Moses were conduct by him in contravention of s.346 of the Fair Work Act. I so find.
An issue arises between the parties about s.349 of the Fair Work Act. That section provides:
(1) A person must not knowingly or recklessly make a false or misleading representation about either of the following:
(a) another person’s obligation to engage in industrial activity;
(b) another person’s obligation to disclose whether he or she, or a third person:
(i) is or is not, or was or was not, an officer or member of an industrial association; or
(ii) is or is not engaging, or has or has not engaged, in industrial activity.
Note: This subsection is a civil remedy provision (see Part 4‑1).
(2) Subsection (1) does not apply if the person to whom the representation is made would not be expected to rely on it.
The respondents submit that the matters alleged in paragraph 9 of the statement of claim do not amount to a misrepresentation about the employees’ “obligation” to join the Union. Rather, they were an assertion of adverse consequences if certain conduct was not engaged in.
However, the finding that Mr Moses said words to the effect that it was a union site and if they wanted to work on the Project they had to join the CFMEU (paragraph 9(b) of the Statement of Claim) was clearly a representation about two matters, namely that:
a)the Boardwalk Project site was a “Union site” (whatever that might mean); and
b)if the workers wanted to work on that site they had to be members of the CFMEU.
The representations were both wrong. There is no evidence that the Boardwalk Project site was a “Union site” (whatever that might mean) and the workers did not need to be members of the CFMEU to work there.

The liability of Mr Churchman

Mr Churchman will be liable pursuant to s.550(a) or (c) of the Fair Work Act if he:
a)aids or abets Mr Moses’ contraventions; or
b)has been in any way, by act or omission, directly or indirectly, knowingly concerned in or a party to the contraventions.
The parties agree that in either case Mr Churchman’s acts or omissions must be undertaken with knowledge of the essential facts of the contravention.
The applicant argues that the Court may infer from Mr Churchman’s conduct that he was not some form of passive bystander and that he was a willing and knowing participant in Mr Moses’ threats and representations.
There is no direct evidence that Mr Churchman offered Mr Moses any active encouragement to utter the offending words. There is no evidence of a prior plan between the two to make the offending threat. The liability of Mr Churchman is left to inferences that might be drawn from the facts as found. Mr Churchman’s evidence was that he was unaware of any plan by Mr Moses to threaten the workers in the way that he did.
The applicant argues that I should draw an inference that Mr Churchman knew that Mr Moses was intending to issue the threat set out above and emphasises that Mr Churchman:
a)said in his oral evidence that when he attended meetings with Mr Moses they jointly organised and engaged in those meetings;
b)expressed no demur to Mr Moses’ statements which were self-evidently made to force the workers to join the CFMEU;
c)continued his silent support of Mr Moses throughout the course of the discussions on 11 September, 2013 standing with him as the CFMEU delegate;
d)left and returned with Mr Moses after the five minute ultimatum;
e)assisted Mr Moses by handing out union paraphernalia during the meeting;
f)returned to speak to the employees on Friday, 13 September 2013 about union membership, that date being the conclusion of the “48 hour deadline” ultimately imposed by Mr Moses on Wednesday, 11 September 2013; and
g)then admitted on 13 September 2013 that Mr Moses’ conduct was out of line, which implies he knew what was happening at the meeting.
The respondents argue that the difficulty with the applicant’s argument is that there is nothing in the evidence that would suggest that Mr Churchman knew that Mr Moses intended to issue his threat until he had made it. The respondents argue that Mr Churchman only became aware of Mr Moses’s plan to issue the threat when it occurred and once Mr Moses uttered the offending words, the contraventions were complete. The respondents’ submissions approach the case on the basis that each individual sentence or utterance amounts to a new and separate offence. Whilst it may do, that is not the applicant’s case. As pleaded, the case is that, taken as a whole, Mr Moses’s statements on 11 September, 2013 amount to one single contravention of each of the relevant sections of the Act.
As the applicant argues, Mr Moses’ offending conduct was not the uttering of a single sentence but rather a series of statements that began with the words “Smithbridge employees won’t be going back to work today if you don’t sign up to the CFMEU’ and continued until Mr Moses ended the conversation with “You have to join the union otherwise you won’t be able to work onsite and we will make sure you don’t work on site. You have 48 hours to decide and we will be back on Friday”. By the time the last statement was made by Mr Moses, I accept that Mr Churchman could not credibly claim that he remained unaware of Mr Moses’ intentions. Mr Moses’s words were clear. The purpose for leaving the meeting for five minutes was to let the assembled workers decide if they wished to join the CFMEU.
When they returned, Mr Churchman did nothing to correct the threat or ultimatum that had been made. He accepted in cross-examination that if threats such as those alleged by the applicant had been made by Mr Moses they would have been wrong. Yet he stood by silently and permitted Mr Moses to again deliver an ultimatum to the assembled workers that he knew was false.
To make out his point, the applicant’s senior counsel took me to R v Beck [1990] 1 Qd R 30, a case dealing with an offender’s liability as an aider pursuant to s.7 of The Criminal Code (Qld). In that case, after committing a number of serious sexual assaults on his victim, the principal offender commenced to strangle her. The appellant Beck was present, but did nothing to assist the murder. Her case was that until the strangulation commenced she did not know of her partner’s intention to murder the victim. She did nothing to assist him despite his requests, but did move their dog who had become excited by the unfolding events. Beck was found guilty of murder. The case was left to the jury on the basis that she was liable as an aider under s.7 of The Criminal Code or liable for the probable consequence of the unlawful purpose to which she was a party under s.8 of The Criminal Code. The appeal was unsuccessful.
Beck is quite a different case from the present. In Beck the offending conduct took place over a period of time. The antecedent assaults took some time and occurred with Beck’s active assistance. The victim was then killed. As Derrington J put it in his reasons for judgment at p.41, “The killing was not instantaneous but took some little time”. Beck’s presence in and of itself, coupled with her earlier help, in the circumstances of that case, was sufficient to provide encouragement to her partner.
Here the commission of the relevant contraventions took little time and consisted of a number of statements by Mr Moses. Mr Churchman’s initial presence and silence was consistent with Mr Moses not having a plan to threaten the workers as he did. But his subsequent failure to correct the obviously false statements made by Mr Moses and his failure to say anything when he and Mr Moses returned to the meeting, I am satisfied, provided Mr Moses with encouragement in the sense explained in Beck. Mr Churchman aided the commission of the contravention because, aware of the offending conduct or potentially offending conduct, he did nothing to correct the false statements before the contravention, as pleaded by the applicant, was complete.
I am satisfied that Mr Churchman was involved in Mr Moses’s contraventions of the Fair Work Act by aiding, or otherwise being knowingly concerned in those contraventions. The claim against Mr Churchman must also succeed.
There is no dispute that the CFMEU is liable for the actions of both Mr Moses and Mr Churchman.

Conclusion

The parties have agreed to submit minutes of orders consequent upon these reasons. I will make directions accordingly.

I certify that the preceding one hundred and seventy (170) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 18 April, 2017.

Date: 18 April 2017