FEDERAL COURT OF AUSTRALIA
Australian Building and Construction Commissioner v Parker [2017] FCA 564
ORDERS
NSD 467 of 2016 BETWEEN: AUSTRALIAN BUILDING AND CONSTRUCTION COMMISSIONER
Applicant
AND: BRIAN PARKER
First Respondent
ROBERT KERA
Second Respondent
DANNY REEVES (and others named in the Schedule)
Third Respondent
JUDGE:
FLICK J
DATE OF ORDER:
24 May 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
On 5 April 2016 the Australian Building and Construction Commissioner (the “Commissioner”) filed in this Court an Originating Application and a Statement of Claim. An Amended Originating Application was filed on 10 June 2016. Leave was granted to file a Further Amended Originating Application and an Amended Statement of Claim, which were filed on 14 July 2016. A Further Amended Statement of Claim followed on 8 September 2016.
The First Respondent to that proceeding was named as Mr Brian Parker, the State Secretary of the New South Wales Divisional Branch of the Eleventh Respondent, the Construction, Forestry, Mining & Energy Union (the “CFMEU”). The Second to Tenth Respondents are other persons associated with the CFMEU. The Twelfth Respondent is named as the Construction, Forestry, Mining & Energy Union, New South Wales Branch (the “CFMEU NSW”).
The facts giving rise to the proceeding involve conduct that took place principally on Thursday 24 July 2014 at a building site located at Hickson Road, Millers Point in Sydney (the “Site”). The Site was known as the Barangaroo South Redevelopment Project in Sydney (the “Project”). In about December 2009, Lend Lease Project Management and Construction (Australia) Pty Limited (“Lend Lease”) had been engaged by the Barangaroo Delivery Authority on behalf of the Government of New South Wales to develop the Site.
The events that took place on Thursday 24 July 2014 can truly be described as tumultuous. But, and in very summary form, the Commissioner seeks to segregate the events on that day into three separate stages, namely:
·the “Blocking Action”, being conduct that commenced at about 5.45am and conduct which preceded a meeting of workers;
·the “Stop Work Action”, namely the meeting of workers held between about 6.30am and 7.00am and the passing of a “Stop Work Resolution”; and
·the “Enforcement Action”, namely that conduct which followed the “Stop Work Meeting”.
The Stop Work Resolution attracted some attention. The resolution which was proposed, and which was put, called upon the workers to cease work for 48 hours. But the resolution as passed was that the workers were to “reassess” their position on the following Monday – on one view of the facts a period in excess of 48 hours. At the end of the day on 24 July 2014, the Fair Work Commission made orders requiring the workers to return to work.
A further meeting was held on 25 July 2014. As the Commissioner would have it, this meeting was a continuation of the meeting held on the previous day and was a meeting which (inter alia) urged the workers to continue their strike action. As the Respondents would have it, the purpose of the meeting was to advise the workers of the orders made by the Commission and calling upon the workers to return to work.
The Commissioner alleges contraventions of the following provisions of the Fair Work Act 2009 (Cth) (the “Fair Work Act”):
·s 50;
·s 348;
·s 355; and
·s 417.
A pleading alleging accessorial liability was also made pursuant to ss 363 and 793 of the Fair Work Act. Each of the provisions alleged to have been contravened is a civil remedy provision. Declaratory relief is sought, together with orders for the imposition of penalties.
AN OVERVIEW OF THE proceEding
The resolution of the claims advanced by the Commissioner gave rise to a hearing which commenced on 12 July 2016 and continued thereafter on 13, 14 and 26 July, 5 August, 5 to 8 and 14 December 2016.
The hearing occupied some considerable time primarily by reason of the fact that there were ten individual Respondents whose own particular participation in the events on 24 and 25 July 2016 had to be individually examined.
Prior to the hearing, the circumstances surrounding one individual Respondent (Mr Luke Collier) attracted an application made on his behalf that the proceeding against him be stayed.
The progress of the hearing also occasioned a number of applications to further amend the pleadings. One such amendment occasioned no concern. On 1 December 2016 the Building & Construction Industry (Consequential and Transitional Provisions) Act 2016 (Cth) received Royal assent. One amendment effected by that Act was the substitution of the Commissioner for the Director of the Fair Work Building Industry Inspectorate as the Applicant in the proceeding. Other applications to amend made during the course of final submissions on the final day of the hearing met with opposition.
The Respondents – the forensic choices made & the positions held
As at the commencement of the hearing, the CFMEU and CFMEU NSW had each filed Defences.
The individual Respondents each filed a Defence which claimed a privilege against self-incrimination. All of the individual Respondents elected to await the close of the Commissioner’s case before a decision was made to either file amended Defences or to adduce their own evidence. The Respondents did in fact later elect to adduce evidence.
The positions held by each of the individual Respondents may be summarised as follows:
Respondent
Position held
First Respondent
Mr Brian Parker
1. A member of the CFMEU and CFMEU NSW
2. State Secretary of the CFMEU NSW
3. NSW Divisional Branch Secretary and State Secretary of the CFMEU
4. Divisional Trustee and National Executive Committee member of the CFMEU
Second Respondent
Mr Robert Kera
1. A member of the CFMEU and CFMEU NSW
2. State Joint Vice-President of the CFMEU NSW
3. NSW Divisional Branch Assistant Secretary of the Construction and General Division of the CFMEU NSW
Third Respondent
Mr Danny Reeves
1. A member of the CFMEU and CFMEU NSW
2. A member of the Divisional Management Committee of the CFMEU and CFMEU NSW
3. An employee of Lend Lease Building
4. A delegate of the CFMEU and CFMEU NSW on the Project site
Fourth Respondent
Mr Peter Genovese
1. A member of the CFMEU and CFMEU NSW
2. A member of the Divisional Management Committee of the CFMEU and CFMEU NSW
3. An employee of Lend Lease Building, suspended with pay from 26 March 2014
4. A delegate of the CFMEU and CFMEU NSW on the Project site
Fifth Respondent
Mr Michael Greenfield
1. A member of the CFMEU and CFMEU NSW
2. Held appointment as and was employed as an Organiser by the CFMEU and CFMEU NSW
Sixth Respondent
Mr Luke Collier
1. A member of the CFMEU and CFMEU NSW
2. Held appointment as and was employed as an Organiser by the CFMEU and CFMEU NSW
Seventh Respondent
Mr Darren Greenfield
1. A member of the CFMEU and CFMEU NSW
2. Held appointment as and was employed as an Organiser by the CFMEU and CFMEU NSW
Eighth Respondent
Mr Tony Sloane
1. A member of the CFMEU and CFMEU NSW
2. Held appointment as and was employed as an Organiser by the CFMEU and CFMEU NSW
Ninth Respondent
Mr Darren Taylor
1. A member of the CFMEU and CFMEU NSW
2. Held appointment as and was employed as an Organiser by the CFMEU and CFMEU NSW
Tenth Respondent
Mr Richard Auimatagi
1. A member of the CFMEU and CFMEU NSW
2. Held appointment as and was employed as an Organiser by the CFMEU and CFMEU NSW
Some of the individual Respondents took a more active role in the events than others.
It is common ground that the CFMEU is an organisation of employees registered under the Fair Work (Registered Organisations) Act2009 (Cth) and is an “industrial association” within the meaning of s 12 of the Fair Work Act. It is also common ground that the CFMEU NSW is not an organisation of employees covered by the enterprise agreements in force at the Site. But the Commissioner alleges that the CFMEU NSW is liable for the conduct of the individual Respondents, who are its officials, for the contraventions of ss 348, 355 and 417.
In the event that the conduct pleaded against the individual Respondents was established, neither the CFMEU nor the CFMEU NSW dispute liability.
A preliminary matter – a stay of the proceedings as against Collier
Prior to the hearing, in April 2016, Counsel on behalf of the Respondents sought a stay of the proceedings against Mr Collier, the Sixth Respondent.
Mr Collier had been charged with two criminal offences. One offence charged him with attempting to intimidate a Commonwealth public official (namely, Mr Jared O’Connor) contrary to ss 11.1(1) and 149.1(1) of the Criminal Code1995 (Cth) (the “Criminal Code”); the second offence charged him with intimidating a Commonwealth public official (namely, Ms Veronica Tadros) contrary to s 149.1(1) of the Criminal Code. Both offences were said to have occurred between “about 23 July 2014 and 29 July 2014”.
Section 11.1 of the Criminal Code provides as follows:
11.1 Attempt
(1)A person who attempts to commit an offence commits the offence of attempting to commit that offence and is punishable as if the offence attempted had been committed.
Section 149.1 of the Criminal Code provides as follows:
149.1 Obstruction of Commonwealth public officials
(1) A person commits an offence if:
(a) the person knows that another person is a public official; and
(b)the first-mentioned person obstructs, hinders, intimidates or resists the official in the performance of the official’s functions; and
(c) the official is a Commonwealth public official; and
(d) the functions are functions as a Commonwealth public official.
Penalty: Imprisonment for 2 years.
In seeking a stay of the proceeding in this Court, reliance was placed upon s 553 of the Fair Work Act, which provides as follows:
Criminal proceedings during civil proceedings
(1)Proceedings for a pecuniary penalty order against a person for a contravention of a civil remedy provision are stayed if:
(a)criminal proceedings are commenced or have already commenced against the person for an offence; and
(b)the offence is constituted by conduct that is substantially the same as the conduct in relation to which the order would be made.
(2)The proceedings for the order may be resumed if the person is not convicted of the offence. Otherwise, the proceedings for the order are dismissed
A course not open to the Court, it was submitted, was to allow the proceeding against Mr Collier to continue but to not make any adverse findings against him. It was the “proceeding” in its entirety as against Mr Collier which was stayed if s 553(1) was enlivened.
The application for the stay was refused, although Counsel for the Respondents was then advised that the matter may need to be revisited. The stay was refused because it was concluded that the alleged contraventions in the present proceeding were not “substantially the same” as the elements of the criminal proceeding: General Manager of the Fair Work Commission v Thomson [2013] FCA 380, (2013) 241 FCR 439. Jessup J there observed, on the facts of that case (at 446):
[15] The circumstance that the allegations in this case which are based on conduct which is substantially the same as that which provides the foundation for the criminal charges will not, pending the completion of the criminal proceedings, be a part of the case made the task of the respondent in persuading the court to stay the proceeding as a whole a challenging one.
In that case, the proceeding seeking the recovery of penalties under the Fair Work (Registered Organisations) Act 2009 (Cth) was stayed.
The underlying facts of relevance to the present proceeding and to the criminal proceeding may well have a lot in common; but the elements of the contraventions and the criminal conduct, it was considered, were not “substantially the same”.
In Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2015] FCA 47, (2015) 323 ALR 294 at 301, Mortimer J expressed the difference in approaches between the parties as to the application of s 553 and the resolution of those differences as follows:
[35] Senior counsel for the respondents submitted it is the conduct described in the evidence which must be compared with the conduct relied upon by the applicant to allege a contravention of s 348. He submitted it would be incorrect to approach the comparison by comparing the elements in the offence of contempt and the elements of the civil penalty contravention. The elements of a criminal offence are unlikely, he submitted, ever to overlap entirely with the elements of a civil penalty provision.
[36] The applicant submitted the correct approach was to compare the elements of the criminal offence and the elements of the civil penalty contravention, which was the approach taken in Thomson. If a proceeding where a person is charged with contempt is correctly described as a “criminal proceeding for an offence” (recalling the applicant disputes this approach) then the core or key elements of the offence of contempt are the breach of a court order, and contumacy. Neither of those are elements of the civil penalty contravention and thus there is no substantial similarity for the purpose of s 553(1)(b).
[37] Senior counsel for the respondents invited the Court to take a broader approach than that taken by Jessup J in Thomson. I do not propose to take a broader approach. I consider the applicant’s submission is consistent with the decision of the High Court in Pearce v R (1998) 194 CLR 610; [1998] HCA 57, and the approach taken by Jessup J in Thomson.
No occasion has arisen to revisit the decision first made to refuse a stay of the proceeding as against Mr Collier.
The Court was later advised that Mr Collier was apparently convicted of an offence. But the fate of Mr Collier in respect to the criminal proceedings was otherwise left largely unaddressed. Other than the application made for a stay of the proceeding against Mr Collier, no further submission was advanced in final submissions that the outcome of the criminal proceedings against him attracted any further consideration.
A further preliminary matter – the pleading amendments
Two further amendments were sought on behalf of the Commissioner at the close of submissions, namely:
·an application to amend paras [52], [60], [67A], [74A], [81], [87], [93], [99], [105] and [111] of the Further Amended Statement of Claim to delete the pleading that the conduct of the individual Respondents “constituted the organising of and taking action” and to substitute the phrase that the conduct “constituted the organising of or taking action”; and
·an application to amend para [119] of the Further Amended Statement of Claim to delete the pleading that each of the First to Tenth Respondents (namely the individual Respondents) was “involved in the contraventions of sections 50 and 417 of the FW Act by the Stop Work Employees, within the meaning of section 550 of the FW Act” and to substitute the pleading that each of those Respondents was “involved in the contraventions of sections 50 and 417 of the FW Act by the Third Respondent, the Fourth Respondent, the Eleventh Respondent and the Site Employees, within the meaning of section 550 of the FW Act”. The Third and Fourth Respondents, Mr Reeves and Mr Genovese, were both employees of Lend Lease.
Counsel for the Respondents quite properly conceded that no “evidential prejudice” would be suffered should the amendments be granted. But he also quite properly submitted that there came a time when the pleadings should properly be beyond the reach of belated amendments. Such a time, it was submitted, had been reached when the applications to amend emerged during final submissions. Litigation, it is to be recalled, is “not a free for all” (cf. Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2015] FCAFC 25 at [64], (2015) 230 FCR 298 at 311 per Logan, Bromberg and Katzmann JJ; Director, Fair Work Building Industry Inspectorate v ADCO Constructions Pty Ltd [2016] FCA 602 at [7] per Logan J) and both the Court and parties have imposed upon them the requirement to conduct proceedings “as quickly, inexpensively and efficiently as possible”: Federal Court of Australia Act1976 (Cth) ss 37M and 37N.
Subject only to the ultimate fate to befall para [119], and notwithstanding the opposition of the Respondents, each of the applications to amend should be granted.
The first application followed more closely the wording of the contravention alleged, namely s 348 of the Fair Work Act. Both applications, it is also accepted, followed the manner in which the hearing had been conducted. But no like application was made to amend paras [56], [64], [70], [77], [85], [91], [97], [103], [109] and [115]. These were the allegations that the conduct of each of the individual Respondents “constituted organising industrial action by the Stop Work Employees in contravention of section 417 of the FW Act”. Section 417 is expressed in terms that a person “must not organise or engage in industrial action”. But there remained no pleading expressed in the alternative and no pleading that each of the individual Respondents “engage[d] in industrial action”. Had such an amendment been sought, it would have been granted. In the absence of any application to amend paras [56], [64], [70], [77], [85], [91], [97], [103], [109] and [115], the course which has been taken is to resolve the claim as pleaded.
The second application to amend, namely the application to amend the pleading as to accessorial liability, has proved more troublesome.
Counsel for the Respondents advanced two broad challenges to the pleading in paras [118] and [119], namely:
·that there was an unacceptable degree of circularity in the pleadings such that the pleadings permitted a conclusion that a person was an accessory to his own primary contravention. If, for example, Mr Parker were to be found to have contravened the Fair Work Act by organising industrial action, the CFMEU could then be found to also have contravened the Act and Mr Parker could thereafter be found to be an accessory to the CFMEU contravention; and
·the lack of precision in the manner in which one or other of the individual Respondents was said to be an accessory. This submission was grounded in considerations of fairness and the need for an individual to know the manner in which the case against him was sought to be advanced.
The former ground of challenge was the one initially advanced or, at least, primarily relied upon.
Paragraphs [118] to [120] are expressed as follows (without alteration):
Accessorial liability of the First to Tenth Respondents
118.Each of the First to Tenth Respondents was involved in the contraventions of sections 348, 355 and 417 of the FW Act by the other of the First to Tenth Respondents, within the meaning of section 550 of the FW Act, in that each of them:
a. aided, abetted, counselled or procured the contraventions; or
b. induced the contraventions, whether by threats or promises or otherwise; or
c.by act or omission, directly or indirectly, been knowingly concerned in or party to the contraventions; or
d. conspired with the other Respondents to effect the contraventions.
Particulars
Each of the First to Tenth Respondents:
i.had knowledge of the conduct of the other of the First to Tenth Respondents as pleaded in paragraph 52 to 116 above;
ii. attended the Stop Work Meeting;
iii.was aware of and supported the Stop Work Resolution and knew that its purpose was to cause the Site Employees to stop work during the term of the Lend Lease EBAs in order to place pressure on Lend Lease to reinstate Genovese as pleaded in paragraph 42 above; and
iv.each of the First to Tenth Respondents did not advise the other of the First to Tenth Respondents against taking the action they took nor did he dissociate himself from that action or its purpose but engaged in a common purpose with the other Respondents.
119.Each of the First to Tenth Respondents was involved in the contraventions of sections 50 and 417 of the FW Act by the Stop Work Employees, within the meaning of section 550 of the FW Act, in that each of them:
a. aided, abetted, counselled or procured the contraventions; or
b. induced the contraventions, whether by threats or promises or otherwise; or
c.by act or omission, directly or indirectly, been knowingly concerned in or party to the contraventions; or
d. conspired with the other Respondents to effect the contraventions.
Particulars
Each of the First to Tenth Respondents:
i.had knowledge of the conduct of the other of the First to Tenth Respondents as pleaded in paragraphs 52 to 116 above;
ii. attended the Stop Work Meeting;
iii.was aware of and supported the Stop Work Resolution and knew that its purpose was to cause the Site Employees to stop work during the term of the Lend Lease EBAs in order to place pressure on Lend Lease to reinstate Genovese as pleaded in paragraph 42 above; and
iv.each of the First to Tenth Respondents did not advise the other of the First to Tenth Respondents against taking the action they took nor did he dissociate himself from that action or its purpose but engaged in a common purpose with the other Respondents, and did not advise them or the CFMEU or the site employees to continue work and to engage the dispute resolution procedure under clause 19 of the JDA.
v.was aware of the matters concerning the suspension of Genovese referred to in paragraphs 35 and 36;
ivvi. was aware that the JDA required work to continue and disputes at the Site to be dealt with by participation of the CFMEU in a mandatory dispute resolution procedure;120.By reason of the operation of section 550(1) of the FW Act each of the First to Tenth Respondents contravened sections 50, 348, 355 and 417 of the FW Act.
At the stage when the Respondents’ Interlocutory Application filed on 18 November 2016 was before the Court on 5 December 2016, this challenge to the pleadings was (regrettably) not given the attention by the Court in 2016 that it deserved. The Interlocutory Application, as correctly submitted in the Commissioner’s written Outline of Submissions, had been dismissed. But when that occurred, it was “without prejudice to the submissions which may be advanced as to what the pleading actually means”. Not deterred by the events on 5 December 2016, Counsel for the Respondents renewed his submissions that the paragraphs should be struck out. The fate of these three paragraphs was addressed in final submissions and is a question which should be revisited.
Paragraphs [118] and [119] should be struck out. As a result of that conclusion, para [120] should also be struck out.
There was much force in both of the grounds relied upon by Counsel for the Respondents. But the former ground was, with respect, not as persuasive as the latter. Albeit less than ideal and a manner of pleading which should be discouraged, any concern as to any potential “circularity” in the pleadings could adequately be addressed by submissions.
But it was the latter ground which has primarily prompted a reconsideration of the question as to whether paras [118] and [119] should be struck out.
As a starting point, the principle that a person against whom a “quasi-criminal” contravention is alleged “should know what case he or she has to meet” has long rested “upon a basic consideration of fairness”: cf. S v The Queen (1989) 168 CLR 266 at 285 per Gaudron and McHugh JJ. It is also to be accepted that a pleading that alleges that a person is an accessory to the contravention of a “civil penalty” provision by another person should separately allege:
·knowledge on the part of the accessory of each and every element of the contravention; and
·the identity of the other person who engaged in the contravening conduct.
Where the contravention is one involving an “intent” or “purpose”, it is also necessary to separately allege that the accessory:
·had knowledge of that “intent” or “purpose”.
It was not understood that any of these requirements was put in issue by Senior Counsel for the Commissioner. It was his position that paras [118] and [119] met those requirements and did not need any further amendment to address the concerns of the Respondents.
Concurrence cannot be expressed with the Commissioner’s position. Left un-pleaded is any precise identification of:
·which particular Respondent was said to be the person who engaged in the contravening conduct and, in respect to that conduct, which particular Respondent was said to be an accessory; and
·the material facts founding a pleading that contends that the person who was said to be an accessory had “knowledge of the other of the First to Tenth Respondents”.
More specifically, with respect to those allegations that one or other of the Respondents engaged in conduct with an “intent to coerce”, there is no precise allegation identifying:
·the factual basis for the allegation that that Respondent had knowledge of the “intent to coerce” or a factual allegation from which such knowledge could be inferred.
As a general proposition, it may be accepted that the Commissioner alleges that each of the individual Respondents was an accessory to any contravention of any of the remaining individual Respondents. And the Particulars provided in respect to para [118] seek to give colour to the more general allegation.
But, with respect, greater specificity than that is required.
With the benefit of hindsight, paras [118] and [119] should have been struck out earlier. But any earlier assessment of the merits of the Respondents’ strike out application should not prejudice its ultimate fate.
Even had a conclusion not been reached that these paragraphs should be belatedly struck out, it would nevertheless have been further concluded that the case of accessorial liability would not have prevailed. No sufficiently certain meaning could be given to the allegations as pleaded as against each of the individual Respondents. There was, for example, considerable uncertainty as to the factual basis upon which one particular Respondent was said to have knowledge of the “intent to coerce” being exercised by another Respondent. Separate from any question as to the form of the pleading, and separate from any question as to whether it would have been permissible to go beyond the pleadings as drafted in order to thereafter conduct a free-ranging search of the available evidence with a view to building a factual basis upon which findings of fact made against one Respondent in respect to (for example) that Respondent’s intent or knowledge could be attributed to another, the evidence of accessorial liability would not have satisfied the standard of proof required by Briginshaw v Briginshaw (1938) 60 CLR 336 (“Briginshaw”), or more accurately, the standard required by s 140 of the Evidence Act 1995 (Cth) (the “Evidence Act”).
LEND LEASE & THE SUBCONTRACTORS ON-SITE
As at July 2014 the Project comprised construction of:
·three commercial office towers;
·two residential towers; and
·a commercial building.
As at July 2014 there were three entities within the Lend Lease group working on the Site, namely:
·Lend Lease Building Pty Ltd (“Lend Lease Building”), formerly known as Lend Lease Project Management and Construction (Australia) Pty Ltd;
·Lend Lease Structures Pty Ltd (“Lend Lease Structures”); and
·Lend Lease Infrastructure Services Pty Ltd, now known as Lend Lease Services Pty Ltd.
The employees of Lend Lease Building were covered by an enterprise agreement called the Lend Lease Project Management & Construction/CFMEU Joint Development Agreement Mark 8 2012-2016 (the “Joint Development Agreement”, often referred to as “the JDA”). The employees of Lend Lease Structures were covered by an enterprise agreement called the Lend Lease Structures Pty Ltd/CFMEU Greenfields Collective Agreement 2012-2016. This Agreement was approved by Fair Work Australia on 7 November 2012 and has a nominal expiry date of 1 October 2016.
Clauses 19 and 20 of the Joint Development Agreement assume relevance to the Commissioner’s case in respect to breaches of that Agreement and the contraventions alleged in respect to ss 50 and 347. Those clauses provide as follows:
19. Conflict Resolution
19.1The Parties recognise that one of the aims of the Agreement is to eliminate lost time in the event of a dispute and to achieve prompt resolution. The most effective procedure is for the responsibility for resolution to remain as close to the source of the dispute as possible. To this end, the following processes are agreed:
(a) Disputes Procedure
In the event of a dispute occurring, the following procedure will be adopted:
(i)Discussion between those directly affected;
(ii)Discussion on the project between the site management and the Employee affected or a representative nominated by the Employee (including Union delegate);
(iii)Discussion between senior Company management and the Employee affected, or if nominated by the Employee their Representative or appropriate Union official;
(iv)The relevant Union official commits to make him/herself available to be involved at any stage of the procedure as required, or in respect of any potential dispute. The Company agrees to facilitating access to the project for the relevant Union official to represent Employees under this procedure subject to the Union official complying with all site rules and reasonable requests and reasonable directions of site management.
A dispute will not be referred to the next level of the above procedure until a genuine attempt to resolve the matter has been made at the appropriate level.
(b) Reference to the relevant State Board or Panel.
If the dispute occurs in Victoria or Queensland, and still exists after the above disputes procedure either party may refer the dispute to a State Industry Dispute Panel or Board constituted under Australian Government or State law. This sub-clause does not prevent any of the parties to the dispute from referring the dispute to Fair Work Australia (FWA) either before or after any decision or recommendation of the State Board or Panel. If the matter has been referred to a State Industry Dispute Panel or Board constituted under Australian Government or State law, once a decision has been handed down the matter may be referred by either party to FWA within 14 days.
(c) Reference to Fair Work Australia
A dispute may be referred to FWA for conciliation and if required, arbitration, in either of the following circumstances:
(i)If the dispute still exists after the above disputes procedure has been carried out, the dispute may be referred by any of the parties to the dispute to FWA; or
(ii)If any party to the dispute refuses or fails to follow any step of the above disputes procedure the non breaching party will not be obligated to continue through the remaining steps and may immediately refer the matter to FWA.
(d) Notices of Disputes
Should a dispute arise and it does not appear to be one which can be settled immediately, the party raising the matter will notify the other party or parties by telephone within 48 hours of the dispute arising and confirm it in writing.
20. Work Continuity
Work shall continue without interruption or dislocation during discussion and resolution of disputes.
The subcontractors
In addition to the Lend Lease entities, there were also a number of subcontractors then engaged on the Project. The primary subcontractors (but by no means all of the subcontractors) were as follows:
Form workers
Dalma Corp Pty Limited
Cro Formwork (Aust) Pty Limited
Steel fixers
Courtley Reo Pty Limited
Southside Reinforcing Pty Limited
Concreters
De Martin & Gasparini Pty Limited
De Martin & Gasparini Pumping Pty Limited
Plumbers
Brown & Moodie Pty Limited
Axis Plumbing Pty Ltd
Electricians
Stowe Australia Pty Limited
FIP Electrical (NSW) Pty Limited
Block layers
DJD Brick and Blocklaying Pty Limited
Scaffolders
Erect Safe Scaffolding (Australia) Pty Limited
Mechanical trades
Freedom Air Pty Limited
AG Coombes Pty Limited
Melrose Cranes & Rigging Pty Limited was also engaged as a subcontractor on 23, 24 and 25 July 2014.
In all there were in excess of 1,100 workers on Site as at 23 July 2014.
The working hours on Site were from 7.00am to 7.00pm Monday to Friday and from 7.00am to 5.00pm on Saturdays. There was, however, usually a pre-start meeting commencing at about 6.30am or 7.00am between management of the Lend Lease entities and construction workers.
The Main Site Access had a covered walkway that leads to three turnstiles. It was the only entrance to the Site open at 7.00am. The other access points behind Towers 1, 2 and 3 only opened after 7.00am. They each had a turnstile but before 7.00am the turnstile was blocked by a gate closed with a padlock.
THE WITNESSES & MATTERS OF EVIDENCE
The evidence relied upon by both the Commissioner and the Respondents should be briefly identified at the outset.
There are also some preliminary matters going to the evidence which should be addressed.
There was in the present case, it should be noted at the outset, no Agreed Statement of Facts jointly prepared by the parties, as frequently occurs in cases where contraventions of the Fair Work Act are alleged. Nor has there been any admission by any of the individual Respondents in respect to any alleged contravention.
There was, accordingly, far more extensive evidence in the present case than frequently occurs in other like cases. The length of the hearing was also more protracted than is frequently the case. But such was the inevitable consequence of the individual Respondents invoking the privilege against self-incrimination – as was their right.
The Commissioner’s evidence
The Commissioner relied upon a number of affidavits and witness statements. Many witnesses had prepared witness statements and were only prepared to give evidence if required by a subpoena.
The evidence relied upon by the Commissioner was evidence from the following witnesses:
Lend Lease entities
·Mr Nathan Smith, the Construction Manager of Lend Lease Building;
·Mr Eric Hensley, the Manager, Indigenous Engagement for Lend Lease Building;
·Mr Craig Scannell, a Senior Site Manager employed by Lend Lease Building at the Barangaroo South Development Project;
·Mr Dane Morrison, a Construction Manager employed by Lend Lease Building;
·Mr Jason Baker, a Services Foreman employed by Lend Lease Building;
·Mr David Langford, a Construction Manager employed by Lend Lease Building;
·Mr Patrick Cleary, a Services Foreman employed by Lend Lease Building;
·Mr Greg Lin, a Senior Project Engineer employed by Lend Lease Building;
·Mr Steven Polsen, a Site Manager employed by Lend Lease Building;
·Mr Warren Henson, then employed by Lend Lease Building;
·Mr Denis Fantov, a Site Manager employed by Lend Lease Building; and
·Mr Thomas Waters, then employed by Lend Lease Building as Construction Manager for the T2 Tower.
Subcontractors
·Mr Antonio Zoppellaro, the Construction Manager for Precision Air Pty Ltd, a mechanical subcontractor;
·Mr Craig Schneidereit, a Leading Hand for DJD Brick & Blocklaying Pty Ltd;
·Mr Fridae Tekaute, a Piling Supervisor for Advanced Foundation Solutions (Aust) Pty Ltd, which is now a division of Bashy Soletanche International;
·Mr Paidre Vezza, a Project Manager for Boral Pty Ltd, a subcontractor of Lend Lease Building;
·Mr Mick Melrose, a Senior Project Manager at Melrose Cranes & Rigging Pty Ltd, a subcontractor of Lend Lease; and
·Mr Brian Finn, a Director of Courtly Reo Pty Limited, a subcontractor of Lend Lease Building.
Fair Work inspectors
·Mr Matthew Barr, then employed as an inspector at the Fair Work Building Industry Inspectorate known as Fair Work Building and Construction. Mr Barr affirmed two affidavits;
·Ms Veronica Tadros, then employed as an investigator with Fair Work Building and Construction;
·Mr David Armstrong, an inspector employed by Fair Work Building and Construction;
·Ms Giulietta Siciliano, a senior investigator employed by Fair Work Building and Construction; and
·Mr Jared O’Connor, then employed as an inspector by Fair Work Building and Construction.
Police officers
·Constable Chantelle Brealey, an officer of the New South Wales Police Force.
Most of the Commissioner’s witnesses were cross-examined, albeit briefly.
The Respondents’ evidence
The Respondents filed evidence from the following persons, namely:
·Mr Brian Parker;
·Mr Rob Kera;
·Mr Danny Reeves;
·Mr Pete Genovese;
·Mr Michael Greenfield;
·Mr Luke Collier;
·Mr Darren Greenfield;
·Mr Anthony Sloane;
·Mr Darren Taylor; and
·Mr Richard Auimatagi.
Preliminary matters of evidence
Four preliminary matters should be expressly addressed with respect to the evidence.
First, when making the 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 Commissioner have to take into account the fact that they 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 [15], (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 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 have been made against the standard imposed by s 140(2) of the Evidence Act. Findings as to a contravention of a civil remedy provision of the Fair Work Act are not findings lightly to be made.
Second, the factual account of what happened is inevitably the product of an assessment of the evidence as a whole. Some of the witnesses called on behalf of the Commissioner saw or heard part of what was happening; other witnesses gave a more or less complete account. To some extent, the account given by particular witnesses was different – for example, in respect to the number of workers estimated to have assembled at various times and there was some discrepancy as to the times at which events were taking place. To some extent, for example, in respect to the number of workers assembled, the differences may be attributable to an understandable difficulty in assessing the numbers of persons present in a large crowd; to some extent, the differences are not so readily explicable. The end result is that such findings as have been made are findings based upon an assessment of all of the evidence – even though some particular findings do not sit comfortably with the evidence of one witness as opposed to a different account given by another witness.
Third, a recurring theme in the cross-examination of many of the Commissioner’s witnesses focussed upon those witnesses identifying persons as CFMEU “officials, delegates and organisers” by reason of their wearing CFMEU branded clothing. The recurring theme was that the identification of those persons as CFMEU officials or delegates was founded upon an assumption that all persons who wore CFMEU branded clothing were necessarily CFMEU “officials, delegates and organisers” even though persons who were not such officials or delegates could wear that clothing. Notwithstanding that recurring theme, and subject to a specific reservation in respect to Mr Baker’s like evidence, it is concluded on the facts of the present case that:
·a finding should be made that those persons who were not otherwise expressly identified by name but rather by reference to the apparel they were wearing were members of the CFMEU.
Such a finding, it is respectfully concluded, is not a finding based upon “inexact proofs” or “indirect inferences” (cf. Briginshaw) but a finding which takes into account those factors set forth in s 140(2) of the Evidence Act and:
·the fact that those persons wearing such clothing were in a group of persons variously identified as including known CFMEU persons such as Messrs Parker and Kera;
·the fact that on occasions one or other of the persons whose identity could not be established, but who were wearing such clothing, made statements giving voice to the concerns being expressed by known CFMEU persons; and
·the fact that the meeting being held at about 6.30am on 24 July 2014 was (inter alia) expressed to give voice to the CFMEU’s support for Mr Genovese.
Moreover:
·the fact that those persons were seen wearing the CFMEU badged clothing assumes some probative relevance to their status as being members of the CFMEU.
If it be correct to characterise the identification of those persons as an “assumption”, the “assumption” was one which was soundly based.
The specific reservation in respect to Mr Baker is that his cross-examination took an additional turn. In an earlier account of this incident, Mr Baker also described seeing members of the “Plumbers’ Union” also being present – but no reference was made to these persons in his affidavit relied upon in the present proceeding. The insignia on the clothing of those Union members was a skull and cross-bones. It was also put to him that the account in his evidence in the current proceeding was inconsistent with an earlier account he had given. The cross-examination was such that it is respectfully concluded that Mr Baker’s identification of the persons present being CFMEU “officials” should not be relied upon given the standard of proof required by Briginshaw and s 140 of the Evidence Act. Any finding that these persons were CFMEU persons, accordingly, is to be found elsewhere – if at all.
Fourth, a further recurring theme in the cross-examination of those witnesses who were inspectors employed by the Fair Working Building Industry Inspectorate was that the evidence of such witnesses was more directed to the Commissioner securing a result that the CFMEU had engaged in unlawful industrial activity on 24 and 25 July 2014 – as opposed to an impartial investigation of the facts with a view to later determining whether any breach of the Fair Work Act had occurred. Recourse was had by Counsel on behalf of the Respondents to the following observations of Griffith CJ in Melbourne Steamship Co Ltd v Moorehead (1912) 15 CLR 333 at 342:
I am sometimes inclined to think that in some parts—not all—of the Commonwealth, the old-fashioned traditional, and almost instinctive, standard of fair play to be observed by the Crown in dealing with subjects, which I learned a very long time ago to regard as elementary, is either not known or thought out of date. I should be glad to think that I am mistaken.
See also: Qantas Airways Ltd v Transport Workers’ Union of Australia [2011] FCA 470 at [192], (2011) 211 IR 1 at 47 per Moore J (“Qantas Airways”). The theme gained some traction during the cross-examination of Mr Armstrong when it emerged that he had not made reference in the evidence filed on behalf of the Commissioner to an earlier statement that had been provided to him by two workers on Site which was potentially “exculpatory” of the conduct of the CFMEU. Whether or not such statements should have been included in the evidence adduced on behalf of the Commissioner may presently be left to one side. The cross-examination, it may be accepted, raised questions as to why such evidence had not been adduced. Standing alone, it may well have been concluded that the evidence of Mr Armstrong would not have been sufficient to establish any contravention of the Fair Work Act. But such reservations ultimately assumed little relevance for either of at least two reasons, namely:
·the facts sought to be established by the Commissioner by way of Mr Armstrong were facts established by other witnesses;
and, more importantly:
·the evidence of the employees of the Fair Work Building Industry Inspectorate, it is considered, was otherwise a genuine attempt to impartially set forth such facts as were set forth in their affidavits and to answer such questions as were posed in cross-examination.
Subject to the reservations expressed, it should be observed that the evidence adduced by the Commissioner was otherwise considered to be reliable with each of the witnesses attempting to give their best recollection of what was said and whom they observed being present at the times they identified.
The cross-examination of the individual Respondents – “I don’t recall”
A familiar refrain from many of the individual Respondents when cross-examined was that they did not recall or remember what was said or did not hear what was said. The refrain was oft repeated and repeated in respect to many issues where the Respondents could well be expected to have heard what was said or to have recalled what was said.
A conclusion is open that there was – at the very least – a reluctance on the part of some of those Respondents to answer the questions being put. And such reluctance may be used when evaluating conflicting evidence.
Such a conclusion is a serious matter: Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11, (2011) 243 CLR 361 at 384. Heydon, Crennan and Bell JJ there observed:
[62] The significance of the trial judge’s finding. The conclusion of the trial judge that the plaintiff was “reluctant to say precisely what happened” is an important one. If that conclusion were soundly arrived at, it would be a significant factor against the plaintiff’s success. So, at least, the trial judge, the Court of Appeal majority and the first respondent thought. It would be significant because of the following considerations. Witnesses are supposed to answer questions put by counsel responsively: they are supposed to give a full answer, but no more. It is one thing to say that a witness was not asked the right questions. It is another thing to say that a witness did not answer the questions that were asked. And it is an even more serious thing to say that a witness was “reluctant” to answer. The duty of a witness is to tell the truth, the whole truth, and nothing but the truth so far as the questions asked seek it. The duty of a witness to answer questions responsively involves not only a negative duty (not to volunteer material for which the question does not call), but also a positive duty (to proffer all material within the witness’s knowledge for which the question does call). To conclude that a party-witness is reluctant to say what happened is to conclude that the party-witness is deliberately failing to comply with the duty to tell the whole truth. That is a serious conclusion to reach, for the following reasons.
Care should also be exercised when making use of evidence that is – or may be – subject to a query whether the evidence is the “complete truth” or a query whether a witness has suppressed aspects of his evidence which he may consider to be unfavourable. Heydon, Crennan and Bell JJ went on in Kuhl to make the following cautionary comments (at 386 to 389):
[67] It is not sound judicial technique to criticise a party-witness for deliberately withholding the truth in a fashion crucial to a dismissal of that party’s claim unless two conditions are satisfied. First, reasons must be given for concluding that the truth has been deliberately withheld. Secondly, the party-witness must have been given an opportunity to deal with the criticism.
…
[69] The lack of warning. The second condition is more controversial …
…
[74] The second condition was not satisfied. The plaintiff had no opportunity to deal with the criticism. Normally cross-examining counsel will prefigure and lay the ground work for any criticism a judge may feel minded to make of a witness’s evidence in chief. But here there was no cross-examination on the plaintiff’s evidence in chief about what happened in the moments before he sustained his injuries. This created a difficulty for the trial judge. The tactical decision of defence counsel not to cross-examine on that topic may well have been shrewd. When Wigmore enunciated his celebrated but controversial proposition to the effect that cross-examination was “beyond any doubt the greatest legal engine ever invented for the discovery of truth”, he immediately stated another much less controversial proposition by way of caveat: “A lawyer can do anything with a cross-examination – if he is skillful enough not to impale his own cause upon it.” The truth of the second proposition lies in the fact that when a cross-examiner seeks to extract from a witness testimony which is more favourable to the cross-examiner’s client than that which the witness gave in chief, the new testimony often turns out to be adverse to the client. If evidence in chief is thought to be too feeble to serve its purpose, cross-examiners often think it best to leave it alone, for to cross-examine will do no more than strengthen it: the repeated questions may cause the witness to think harder, may cause the witness to become more determined, may trigger better recollection and may result in the witness giving the more detailed evidence which was not given in chief. But decisions by cross-examiners of that kind are gambles, and the gambles can be lost …
[75] There was no point in the trial judge mentioning his conclusion that the plaintiff’s evidence was not frank and complete unless it played a role in his decision adverse to the plaintiff. In the absence of any challenge from the cross-examiner to the frankness and completeness of the plaintiff’s evidence, it was incumbent on the trial judge, if his conclusion that the plaintiff had not been frank and complete was to play a role in his decision adverse to the plaintiff, to make the challenge himself. Perhaps the criticism in the judgment did not occur to the trial judge until after the plaintiff had left the box, or until after the hearing had concluded and before the judge’s reserved judgment was given. It remained necessary either to recall the plaintiff or to have no regard to that aspect of the plaintiff’s evidence.
See also: Ashby v Slipper [2014] FCAFC 15 at [147], (2014) 219 FCR 322 at 368 per Mansfield and Gilmour JJ.
Such factual differences as inevitably emerged in the account given by one or other of the Commissioner’s witnesses as opposed to the evidence of one or other of the individual Respondents, in the circumstances of the present case, can largely be resolved by an assessment as to which evidence is to be preferred and which is more likely to reflect the facts as they unfolded. In those circumstances where an individual Respondent cannot recall speaking words overheard by one of the Commissioner’s witnesses, little difficulty has been experienced in accepting the evidence of the Commissioner’s witness. But in other circumstances, greater difficulty was experienced where an individual Respondent gave evidence that he could not recall what he said or what was said by others or did not hear what was said by others. Questions as to the weight to be given to such evidence, and indeed questions as to the credibility of the witness concerned, assumed more immediate importance.
In resolving such questions as to weight and credibility, regard has been had to the need to satisfy the “two conditions” and the cautionary remarks in Kuhl in making findings of fact as to whether the Commissioner has made out the allegations advanced in the Further Amended Statement of Claim.
Kuhl, of course, was not a case such as the present where the resolution of questions of liability have been separated from the process of assessing penalties (if any) to be imposed.
When assessing penalties, further consideration may have to be given to resolving the more difficult question of whether the evidence of one or other of the individual Respondents has properly discharged the oath or affirmation given to tell the “whole truth”.
As a general observation, and an observation divorced from the facts of the present case, there is (perhaps) little point in a witness waiving a privilege as to self-incrimination and thereafter proceeding to only give such evidence as may be considered to be to his immediate benefit and to fail to recall such evidence as may be contrary to self-interest. The privilege having been waived, the obligation thereafter is to tell the “whole truth”.
The purpose of presently making such a general observation is not to express any view at all as to further findings that may be open to be made on the facts of the present case. But where the “two conditions” specified in Kuhl have been satisfied, the reluctance of witnesses to answer questions has been relied upon for the purposes of determining liability. The purpose of presently making observations in respect to whether a witness has properly discharged the oath when giving evidence is to simply “flag” it as a matter which may attract submissions when assessing penalties (if any).
Given the gravity of a potential finding that a witness has not properly discharged the oath, the submissions of the parties to the present proceeding should accordingly address the appropriate future course to be pursued. Counsel for the Respondents suggested that the proper time to make such submissions may be on the hearing as to the penalties (if any) to be imposed on one or other of the Respondents. That is the course to be now taken.
THE FAIR WORK ACT
The case advanced on behalf of the Commissioner involved consideration of a number of the provisions of the Fair Work Act, which need separately to be addressed. These provisions are the following.
Section 19
Section 19 of the Fair Work Act provides as follows:
Meaning of industrial action
(1) Industrial action means action of any of the following kinds:
(a)the performance of work by an employee in a manner different from that in which it is customarily performed, or the adoption of a practice in relation to work by an employee, the result of which is a restriction or limitation on, or a delay in, the performance of the work;
(b)a ban, limitation or restriction on the performance of work by an employee or on the acceptance of or offering for work by an employee;
(c)a failure or refusal by employees to attend for work or a failure or refusal to perform any work at all by employees who attend for work;
(d)the lockout of employees from their employment by the employer of the employees.
(2) However, industrial action does not include the following:
(a)action by employees that is authorised or agreed to by the employer of the employees;
(b)action by an employer that is authorised or agreed to by, or on behalf of, employees of the employer;
(c)action by an employee if:
(i)the action was based on a reasonable concern of the employee about an imminent risk to his or her health or safety; and
(ii)the employee did not unreasonably fail to comply with a direction of his or her employer to perform other available work, whether at the same or another workplace, that was safe and appropriate for the employee to perform.
(3)An employer locks out employees from their employment if the employer prevents the employees from performing work under their contracts of employment without terminating those contracts.
Section 19(1)(a) to (c), it will be noted, by its terms confines attention to action “by an employee”. The origins of the expression “industrial action” may be traced back to ss 4(1) and 420(1) of the former Workplace Relations Act1996 (Cth) (the “Workplace Relations Act”). And the confinement of s 19(1)(a) to (c) to the conduct of an “employee” was traced by the Full Court in Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2015] FCAFC 25 at [134] to [138], (2015) 230 FCR 298 at 323 to 324. Given the terms of s 19(1)(a) to (c), Logan, Bromberg and Katzmann JJ there referred to the decision of Kenny J in Cahill v Construction, Forestry, Mining and Energy Union (No 2) [2008] FCA 1292, (2008) 170 FCR 357 and concluded:
[140] However, as Kenny J observed at [58], for the purposes of the WR Act (and now the FW Act), with the change made to the definition of “industrial action” by the Work Choices Act, “it became clear in terms that a relevant ‘ban, limitation or restriction on the performance of work’ must be imposed ‘by an employee’” (emphasis in original).
[141] In Ambulance Victoria v United Voice [2014] FCA 1119 at [22] Tracey J said that “the addition of the words ‘by an employee’ in the extant definition confirms that ‘industrial action’ as defined in s 19(1)(b) of the FW Act is ‘so confined’”. We respectfully agree. The words “by an employee” in s 19(1)(b) confine the action covered by that paragraph to a ban, limitation or restriction imposed by employees on the performance of their work or their acceptance of or offering for work. The conduct of persons other than the employees whose work is banned, limited or restricted is not capable of constituting “industrial action” within the meaning of s 19(1)(b). It follows that the CFMEU could not have engaged in or (as the primary judge apparently found) “taken” industrial action.
When employees refuse to attend work at the direction of their union, that conduct is “industrial action”: Skilled Engineering Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2001] FCA 1397 at [2], (2001) 108 IR 116 at 116 per Finkelstein J.
Notwithstanding an apparent simplicity of definition, the phrase “industrial action” still retains some subtlety. It is a phrase relevantly employed in ss 347(f) and 417(1). But one instance of where argument still surrounds the phrase was presented in Director of the Fair Work Building Industry Inspectorate v McCullough [2016] FCA 1291. It was there argued on behalf of the Respondents that the Director had failed to prove that each had engaged in “industrial action” because such action was confined to “disputation or bargaining between an employer and employees”. Barker J concluded that it was relevant to determine whether action took place outside the area of disputation and bargaining; but that was not determinative. After referring to the decision in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v The Age Company Ltd [2004] AIRC 445, his Honour continued:
[128] As the Full Court emphasise at [118], the Full Bench in the Age case did not hold that action could never be industrial in character if it stood outside the area of disputation and bargaining. As the Full Court said, at [120], ultimately the question is whether action can be said to be “industrial” in character. If action takes place outside the area of disputation and bargaining, that is relevant in determining whether the action is “industrial”, but it is not determinative. In my view, that must be so.
[129] As the Full Court, and the Full Bench in the Age case, seem readily to have acknowledged, without any detailed analysis, a “political strike” – for example, when an employee attends a rally or some other form of demonstration or public meeting to express views about some issue not arising out of their immediate relationship with their employer – seems broadly to have been accepted as falling within the definition of “industrial action” (as defined by relevant legislation at material times).
[130] It might be observed that one reason why that might be the case, is that the industrial “muscle” of organised labour is intended to be used in such cases to add weight to the advancement of broader political issues. In such circumstances, it may well be open to conclude that an employee, by withdrawing his or her labour, or threatening to do so, in support of broad political objectives, engages in “industrial action” for the purposes of s 19. In that regard, what might be called the object of the industrial action is not relevant.
[131] In this case, the rally in question was not concerned with broader political issues, but was one organised by a union, the CFMEU, and was concerned with wages and conditions on work sites controlled by John Holland. The rally had clear and obvious industrial objectives. For an employee of an employer, other than John Holland, to not attend work because of the rally, in my view, would similarly be capable of being characterised as action that is industrial in character – whether or not the employee chose to attend the rally. That is because the employee’s labour is withdrawn, in this case, because of a rally with industrial objectives.
See also: Director of the Fair Work Building Industry Inspectorate v Adams [2015] FCA 828 at [32] to [33] per Barker J.
Section 50
Section 50 of the Fair Work Act provides as follows:
Contravening an enterprise agreement
A person must not contravene a term of an enterprise agreement.
Section 51 should also be noted. That section provides as follows:
The significance of an enterprise agreement applying to a person
(1)An enterprise agreement does not impose obligations on a person, and a person does not contravene a term of an enterprise agreement, unless the agreement applies to the person.
(2)An enterprise agreement does not give a person an entitlement unless the agreement applies to the person.
An “enterprise agreement” is defined in the Dictionary in s 12 of the Act as meaning:
(a) a single-enterprise agreement; or
(b) a multi-enterprise agreement.
A “single-enterprise agreement” is further defined as meaning an “enterprise agreement made as referred to in subsection 172(2)”; a “multi-enterprise agreement” is defined as meaning an “enterprise agreement made as referred to in subsection 172(3)”.
Section 2C(1) of the Acts Interpretation Act1901 (Cth) provides as follows:
In any Act, expressions used to denote persons generally (such as “person”, “party”, “someone”, “anyone”, “no-one”, “one”, “another” and “whoever”), include a body politic or corporate as well as an individual.
Section 50, by its terms, does not require that a person who contravenes a term of an “enterprise agreement” has any knowledge of either the existence of the agreement or, more particularly, knowledge of the content of or even the existence of the term contravened.
So much, it is concluded, follows from the terms of s 50 itself.
Support for the same conclusion is sought on behalf of the Commissioner to be drawn from the following observations of Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ in Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52, (2004) 219 CLR 165 at 185:
[57] If there is a claim of misrepresentation, or non est factum, or if there is an issue as to whether a document was intended to affect legal relations or whether, on the other hand, it was tendered as a mere memorandum of a pre-existing contract, or a receipt, or if there is a claim for equitable or statutory relief, then even in the case of a signed document it may be material to know whether a person who has signed it was given sufficient notice of its contents. The general rule, which applies in the present case, is that where there is no suggested vitiating element, and no claim for equitable or statutory relief, a person who signs a document which is known by that person to contain contractual terms, and to affect legal relations, is bound by those terms, and it is immaterial that the person has not read the document. L'Estrange v Graucob ([1934] 2 KB 394 at 406 to 407) explicitly rejected an attempt to import the principles relating to ticket cases into the area of signed contracts. It was not argued, either in this Court or in the Court of Appeal, that L'Estrange v Graucob should not be followed.
Reliance upon contractual principles to resolve questions of statutory construction in industrial law, with respect, provides but limited support for the Commissioner’s contention.
Coercion to engage in industrial activity – s 348
Section 348 of the Fair Work Act (in summary form) prohibits a person from engaging in action “with intent to coerce” another person to “engage in industrial activity”.
Section 348 provides as follows:
Coercion
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 engage in industrial activity.
Section 348 contains no counterpart provision to s 343(2), namely the qualification that s 343(1) “does not apply to protected industrial action”.
Section 347 defines the meaning to be given to “engages in industrial activity”. That section (in relevant part) provides as follows:
A person engages in industrial activity if the person:
...
(d)encourages, or participates in, an unlawful activity organised or promoted by an industrial association; or
(e)complies with an unlawful request made by, or requirement of, an industrial association; or
(f)takes part in industrial action; or ...
Coercion in respect to allocation of duties etc. – s 355
Section 355 provides as follows:
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.
Section 355 is one of three provisions in Pt 3-1 of the Fair Work Act directed at proscribing action against another person with the “intent to coerce”. The other sections are s 343(1) (which proscribes action taken with the “intent to coerce” a person to exercise or not to exercise a workplace right or to exercise a workplace right in a particular way) and s 348 (which proscribes organising or the taking of action with the “intent to coerce” another to engage in industrial activity). Section 343, it may be noted, provides as follows:
Coercion
(1)A person must not organise or take, or threaten to organise or take, any action against another person with intent to coerce the other person, or a third person, to:
(a)exercise or not exercise, or propose to exercise or not exercise, a workplace right; or
(b)exercise, or propose to exercise, a workplace right in a particular way.
(2) Subsection (1) does not apply to protected industrial action.
Section 355 makes a distinction between both:
·organising and taking action; and
·organising or taking action (on the one hand) and threatening to organise or take action (on the other).
See: Director, Fair Working Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2015] FCA 1125 at [126] and [111], (2015) 254 IR 200 at 233 to 234 and 231 respectively.
Section 417 also employs the term “organise” – but in s 417 the statutory phrase is expressed in terms of a prohibition that a person must not “organise or engage in industrial action”.
Action against – ss 348 & 355
Common to both ss 348 and 355 are two phrases, namely:
·the taking of action “against another person”; and
·the taking of action “with intent to coerce”.
Section 348 requires that action be taken “against” another with an intention to coerce the person “to engage in industrial activity”; s 355 requires that action be taken “against” another person with an intention to coerce persons to (for example) employ a particular person or to engage a particular independent contractor.
Action is taken “against” another person if it is directed at or towards that person: Australian Building Construction Employees and Builders’ Labourers’ Federation v Employment Advocate [2001] FCA 1443, (2001) 114 FCR 22. When considering s 298S(2)(c) of the Workplace Relations Act, Lee, Finn and Merkel JJ referred to the “particular matters” relied upon in that appeal and continued (at 33):
[40] One is, in consequence, left to construe the bare words of s 298S(2)(c) – “threaten to take industrial action against an eligible person with intent to coerce the person ...” – unaided and unaffected by what might be suggested by other substantive provisions of Pt XA. Having regard in particular to the objects of Pt XA stated in s 298A, there is no reason for not giving the words of the subsection their ordinary and natural meaning which, in the present context, means industrial action directed at or towards an eligible person. So construed the subsection encompasses the industrial action found by the trial judge in this matter. Accordingly the appellants’ submissions must be rejected.
In that case, Leighton Contractors Pty Ltd was a contractor at a building site in Queensland. Statements had been made by officials of the CFMEU that if independent contractors did not join the CFMEU they would not be allowed to work on the site. In rejecting an argument that the threatened industrial action could only be taken as against Leighton Contractors as the employer of the labour on site, the Full Court concluded:
[36] The most significant question in this appeal is whether it can properly be said for s 298S(2)(c) purposes that the industrial action found by the trial judge to be threatened was to be taken “against” the three independent contractors. The appellants submit that as the threatened industrial action was a withdrawal of labour, it could only be taken against Leighton as the employers of that labour. They contend, in consequence, that the trial judge confused the target of the intention to coerce (ie the independent contractors) with the target of the industrial action (ie Leighton).
[37] It does no violence to ordinary usage to say that, insofar as the threat of industrial action (a) was caused by the failure of the three independent contractors to join the CFMEU; (b) was communicated directly to Poppi; (c) was aimed at securing their membership of the union; and (d) involved such action as was within the power of Hanna and could be used against the three to secure Hanna’s end, that industrial action was to be taken against the three.
[38] The workers’ employer as well had to endure the industrial action. Their employment relationship with Leighton provided the vehicle for the CFMEU being able to take action against the independent contractors. Leighton was, in consequence, necessarily implicated in the matter. In one sense the action was directed against Leighton in that it sought to coerce Leighton to take action against Hedley by threatening to dispense with its services, but that action against Leighton also provided the means of taking action against Poppi and the others in that it was designed to have them join the union if they wished to continue to work on the Leighton site instead of supplying services to Hedley at some other site.
[39] The sole question to be answered is whether the language of s 298S(2)(c) in its statutory setting precludes it being construed in accordance with its ordinary and natural meaning. The provisions of Pt XA clearly contemplate circumstances in which an industrial association, officer or member will be guilty of a contravention of the action by taking action (including industrial action) against B for the purpose or object of securing an effect upon, or consequence for, C. The following are directly illustrative of this (omitting references to threatened action): (a) “organise or take ... industrial action against an employer with the intent to coerce the employer [to take specified action against C]”: s 298P(3) and s 298P(4); “take ... action having the effect, directly or indirectly, of prejudicing a person in the person’s employment”: s 298Q; “advise [etc] a person (whether an employer or not) to take discriminatory action against [C]”: s 298S(2)(b). These types of provision acknowledge explicitly that, to secure a particular result, indirect rather than direct action against a person may be, or may be necessary to be, taken. But to the extent that they are premised upon a factual situation in which A takes action against B for the purpose of coercing – or inducing (s 298S(2)(a)) – B to take action against C (s 298P(3) and s 298P(4) and s 298S(20(b)), they do not assist in any way in the construction of s 298S(2)(c) as they are concerned with cumulative action involving distinct actors. For its part, s 298Q is likewise unhelpful as its concern (for present purposes) is with the effect of action and not with its having been taken “against” any particular person.
It was in this context that their Honours reached the conclusion expressed at [40]. See also: Helal v McConnell Dowell Constructors (Aust) Pty Ltd [2010] FCA 1462 at [27], (2010) 193 FCR 213 at 221 to 222 per Ryan J.
An intention to coerce
Even though Mr Collier’s involvement in the Blocking Action does not of itself fall within the reach of s 348, such conduct can properly be taken into account when seeking to characterise his conduct which took place during the course of the Stop Work Meeting.
The conduct of Mr Collier in either “organising” or “taking” action on 24 and 25 July 2014 is also to be properly characterised as action taken with “intent to coerce the Site employees”. His conduct on 24 July 2014 is sufficient such that an inference of an intent may be drawn; Mr Collier has certainly done nothing to rebut that inference or presumption. That finding as to his intent is made in respect to his involvement on 24 July 2014. Although his conduct in proceeding onto the veranda and mouthing the words through the window of “[y]ou’re a fucking grub, fucking dog” was a less public expression of views and has been found to be an attempt to intimidate the Fair Work inspectors, it nevertheless remains conduct which forms part of the factual matrix from which a finding as to intent to coerce the Site employees may be founded. An intent to coerce is, with respect, even far more easily reached in respect to his conduct on 25 July 2014. No other inference, other than an intent to coerce, is open by reason of his repeatedly referring to the Fair Work inspectors as “dogs” and his reading out Mr O’Connor’s mobile phone number on that day. Although the statement was made in respect to Mr O’Connor’s phone number, it was a statement made to the entirety of the assembled workers and forms part of the factual matrix against which an intention to coerce the Site employees is founded.
The allegations made in paras [87] and [88] of the Further Amended Statement of Claim, other than in respect to the Blocking Action, thus prevail.
A contravention of s 348 has been made out.
Paragraphs [89] and [90] are the allegations as to a contravention on the part of Mr Collier of s 355 of the Fair Work Act. These allegations also prevail. Although Mr Collier professed to not knowing many things, including a lack of knowledge until after the workers had dispersed on 24 July 2014 that the vote which was passed was to support Mr Genovese’s return to work, that lack of knowledge on the part of Mr Collier has been rejected. Having stood in such close proximity to Mr Parker during the meeting, the lack of knowledge as to what the workers had been told by Mr Parker and Mr Genovese is unable to be accepted. It is concluded he knew what was being said and why the assembled workers had voted as they did.
The contravention of s 355 has been made out.
Paragraph [91] is the allegation that Mr Collier contravened s 417 of the Fair Work Act. This allegation is also accepted. Mr Colliers conduct “constituted organising industrial action by the Stop Work Employees in contravention of section 417 of the FW Act”.
Paragraph [92] of the Further Amended Statement of Claim is the counterpart allegation to that made against Mr Parker at para [59]. The reasons for rejecting para [59] apply equally to para [92]. The allegation in para [92] is thus rejected.
Mr Darren Greenfield
The allegations made against Mr Darren Greenfield at paras [93] to [98] have as their counterpart the allegations made against Mr Parker at paras [52] to [59] of the Further Amended Statement of Claim. .
Paragraphs [93] and [94] are the allegations that Mr Darren Greenfield contravened s 348 of the Fair Work Act.
Mr Darren Greenfield’s involvement in the events on 24 July 2014 were the result of him being told by Mr Kera that there was to be a communications meeting and Mr Darren Greenfield offering to help. No finding can be made against Mr Darren Greenfield that he :
·acted with an intent to coerce the Site employees.
Mr Darren Greenfield’s denial of what was put to him with respect to the attention he paid to what was being said during the course of the Stop Work Meeting on 24 July 2014, and the extent of his observations as to what he saw on that day, has been rejected. But the rejection of Mr Darren Greenfield’s account of what he heard and observed on that day cannot be transposed into any finding that he was acting with any intent to coerce the Site employees.
Mr Darren Greenfield’s involvement in the events on 25 July 2014, being the allegation advanced in para [46A] of the Further Amended Statement of Claim, calls for separate attention. Although Mr Darren Greenfield denied the words attributed to him by Messrs O’Connor and Barr, it has been concluded that on 25 July 2014 he did refer to the Fair Work inspectors as “dogs” and told his son not to stand too close to them as “they have fleas”. Mr Barr also gave an account of Mr Darren Greenfield yelling out “[t]hey’re nothing but dogs”, which has also been accepted.
The sole Particular contained within para [46A], which is directed to the conduct of either Mr Michael Greenfield or Mr Darren Greenfield, is that set forth in para [46A(e)], namely the allegation that both of the Messrs Greenfield (together with Messrs Parker, Collier, Reeves, Kera and Taylor) “vilified and abused Fair Work Inspectors lawfully attending the site”. The comments made by Mr Darren Greenfield are accurately described, as in para [46A(e)], as conduct whereby he “vilified and abused Fair Work Building Inspectors lawfully attending the site”. But such vilification cannot be transposed and become action taken “against the Site Employees and Lend Lease” as alleged in para [93].
The allegations in paras [93] and [94] are thus rejected.
Paragraphs [95] and [96] are the allegations that Mr Darren Greenfield contravened s 355 of the Fair Work Act. These allegations are also rejected. No finding can be made that Mr Darren Greenfield acted with any intent to coerce Lend Lease to allocate particular duties to Mr Genovese.
Paragraph [97] alleges that Mr Darren Greenfield “organised” industrial action by the “Stop Work Employees” and contravened s 417 of the Fair Work Act. It is concluded that:
·on 24 July 2014, Mr Darren Greenfield participated in the events on that day by being part of the assemblage of CFMEU persons assembling in the vicinity of the Main Site Access and did so for the purpose of presenting “a physical demonstration of strength by the CFMEU” and engaged in such conduct both before and after the Stop Work Resolution; and
·on 25 July Mr Darren Greenfield yelled out the words attributed to him by Mr Barr, namely that “[t]hey’re nothing but dogs”.
Although it is respectfully considered that the term “organise” as employed in s 417 of the Fair Work Act requires more than mere presence, the requirement that a person “organise” an event is satisfied if a person associates himself with the conduct of others such that his action can be characterised as “marshalling” or “rallying” (cf. Robinson [2016] FCA 525 at [53], (2016) 241 FCR at 348 per Charlesworth J). Mr Darren Greenfield’s conduct on 24 and 25 July 2014, it is concluded, went beyond mere presence or association (cf. Qantas Airways [2011] FCA 470 at [373], (2011) 211 IR at 83 per Moore J; Robinson [2016] FCA 525 at [36] to [37], (2016) 241 FCR at 345 per Charlesworth J).
The allegation in para [97] is thus made out. The contravention by Mr Darren Greenfield of s 417 is established.
Paragraph [98] of the Further Amended Statement of Claim is the counterpart allegation to that made against Mr Parker at para [59]. The reasons for rejecting para [59] apply equally to para [98]. The allegation in para [98] is thus rejected.
Mr Anthony Sloane
The allegations made against Mr Sloane at paras [99] to [104] have as their counterpart the allegations made against Mr Parker at paras [52] to [59] of the Further Amended Statement of Claim.
The allegations made against Mr Sloane at para [99] of the Further Amended Statement of Claim, which are comparable to those made against Mr Parker at para [52], are rejected because no finding is made in respect to the events as they unfolded on 24 and/or 25 July 2014 that Mr Sloane:
·acted with any “intent to coerce the Site Employees” to engaged in industrial action.
A finding could be made that Mr Sloane:
·“took part” in the events on 25 July 2014 by reason of his saying to Mr O’Connor that he hoped he got his spelling right and “tapping” Mr O’Connor on the shoulder as he walked passed.
It has been accepted that this conduct was pursued by Mr Sloane for the very purpose of making “sure that the derision being directed to the inspectors at the meeting was being directed at exactly the right people”. But such a finding would lead nowhere – at least for the purposes of para [99] of the Further Amended Statement of Claim – in the absence of a finding that by so “taking part” Mr Sloane intended to coerce the Site employees. That finding is not made.
The contravention of s 348, pleaded at para [100], thus also fails.
Nor can any finding be made against Mr Sloane that his involvement “in respect of the Blocking Action, the Stop Work Action and the Enforcement Action”, as pleaded in para [101] was taken “with intent to coerce Lend Lease to allocate particular duties and responsibilities to Genovese or designate Genovese as having particular duties or responsibilities”.
The alleged conduct as pleaded in para [101] has thus not been made out and the contravention of s 355 as alleged in para [102] is rejected.
Paragraph [103] of the Further Amended Statement of Claim alleges the contravention of s 417 of the Fair Work Act. It is concluded that the involvement of Mr Sloane:
·in respect to the events of 24 July 2014, namely by being part of the CFMEU persons congregating outside the Main Site Access on that day and attending the meeting; and
·in respect to the events of 25 July 2014, including his conduct in “tapping” Mr O’Connor on the shoulder;
constitutes the “organising of industrial action by the Stop Work Employees” as alleged in para [103]. Mr Sloane’s contention that his comment to Mr O’Connor was intended as a “joke” has been rejected; and his conduct in “tapping” Mr O’Connor on the should has been characterised as “derision” directed at the inspectors in attendance on 25 July 2014.
The contravention of s 417 has been made out.
The contravention as pleaded in para [103], therefore, has been made out.
Paragraph [104] of the Further Amended Statement of Claim is the counterpart allegation as that made against Mr Parker at para [59]. The reasons for rejecting para [59] apply equally to para [104]. The allegation in para [104] is thus rejected.
Mr Darren Taylor
The same allegations as are made against Mr Parker are also substantially made as against Mr Darren Taylor at paras [105] to [110] of the Further Amended Statement of Claim.
The participation of Mr Taylor in the events on 24 and 25 July 2014 were, obviously enough, also very different to those of Messrs Parker and Kera.
The liability of Mr Taylor, as with each of the individual Respondents, is to be assessed by reference to his own conduct and separately from the conduct of others including, in particular, those contraventions which allege a purpose or intent.
The comparable allegations against Mr Parker at para [52] are made against Mr Taylor at para [105] of the Further Amended Statement of Claim. Those allegations are rejected because no finding is made in respect to the events as they unfolded on 24 July 2014 that Mr Taylor:
·engaged in any action with an “intent to coerce the Site Employees” to engage in industrial action.
Nor can any such finding be made in respect to Mr Taylor’s conduct on 25 July 2014. The acceptance of the evidence of Mr Waters that Mr Taylor yelled out on 25 July 2014 that “they are trying to intimidate us”, takes the allegation in para [105] no further in the absence of any finding as to an “intent to coerce” on the part of Mr Taylor.
The alleged contravention of s 348, as made at para [106], thus also fails.
Nor can any finding be made against Mr Taylor that his involvement “in respect of the Blocking Action, the Stop Work Action and the Enforcement Action” on 24 July 2014, as pleaded at para [107], was taken “with intent to coerce Lend Lease to allocate particular duties and responsibilities to Genovese or designate Genovese as having particular duties or responsibilities”.
The alleged conduct as pleaded in para [107] has thus not been made out and the contravention of s 355 as alleged in para [108] is rejected.
Paragraph [109] of the Further Amended Statement of Claim alleges the contravention of s 417 of the Fair Work Act.
It has been concluded that:
·on 24 July 2014 Mr Taylor participated in the events on that day by being part of the assemblage of CFMEU persons assembling in the vicinity of the Main Site Access and did so for the purpose of presenting “a physical demonstration of strength by the CFMEU” and engaged in such conduct both before and after the Stop Work Resolution; and
·on 25 July 2014 Mr Taylor yelled out “[t]hey are trying to intimidate the workers” (as maintained by Mr Waters) and that there are “dogs over there” (as alleged by Mr O’Connor).
As with the conduct of Mr Darren Greenfield, it is likewise concluded that the term “organise” embraces the conduct of Mr Taylor on 24 and 25 July 2014. His conduct, even more so than that of Mr Darren Greenfield, can be characterised as “marshalling” or “rallying” (cf. Robinson [2016] FCA 525 at [53], (2016) 241 FCR at 348 per Charlesworth J). Mr Taylor’s conduct on 24 and 25 July 2014, it is concluded, went beyond mere presence or association (cf. Qantas Airways [2011] FCA 470 at [373], (2011) 211 IR at 83 per Moore J; Robinson [2016] FCA 525 at [36] to [37], (2016) 241 FCR at 345 per Charlesworth J).
The allegation in para [109] is thus made out. The contravention by Mr Taylor of s 417 is established.
It may be noted that the reference to “Sloane” in para [110] is assumed to be a typographical error and should be a reference to Mr Taylor. So understood, the allegation advanced in para [110] is nevertheless rejected. It is the counterpart allegation to that made against Mr Parker at para [59]. The reasons for rejecting para [59] apply equally to para [110].
Notwithstanding considerable reservation as to the reliability of Mr Taylor’s evidence, the Commissioner has not discharged the onus of proof in making out any of the contraventions alleged against Mr Taylor.
Mr Richard Auimatagi
The allegations made against Mr Auimatagi at paras [111] to [116] of the Further Amended Statement of Claim have as their counterpart the allegations made against Mr Parker at paras [52] to [59].
The comparable allegations made against Mr Parker at para [52] are made against Mr Auimatagi at para [111] of the Further Amended Statement of Claim. Those allegations are rejected because no finding is made in respect to the events as they unfolded on either 24 or 25 July 2014 that Mr Auimatagi’s involvement:
·was pursued with any “intent to coerce the Site Employees” to engaged in industrial action.
Mr Auimatagi’s denial of any intent to coerce has been accepted.
The contravention of s 348, as made at para [112], thus fails.
Nor can any finding be made against Mr Auimatagi that his involvement “in respect of the Stop Work Action and the Enforcement Action”, as pleaded in para [113] was taken “with intent to coerce Lend Lease to allocate particular duties and responsibilities to Genovese or designate Genovese as having particular duties or responsibilities”. The contravention alleged in para [114] thus fails.
Paragraph [115] of the Further Amended Statement of Claim alleges the contravention of s 417 of the Fair Work Act. This allegation has been made out. Mr Auimatagi’s involvement in the events on 24 July 2014 went beyond a mere presence at the Site and constituted the “marshalling” or “rallying” of the Site employees by reason of:
·his presence at the Main Site Access as from sometime after 6.00am in the company of (inter alia) Messrs Parker, Kera and Collier;
·his advising employees attending for work that there was to be a meeting across the road; and
·his attending the Stop Work Meeting and standing on the staircase from which Mr Parker and others addressed the assembled workers.
Although his involvement was nowhere near as extensive as that of Messrs Parker, Kera and Collier, his conduct in its entirety is sufficient to properly fall within the pleading at para [115] of “the organising of industrial action”. So, too, was his involvement in the events that took place on 25 July 2014. Whatever may have been the state of knowledge of Mr Auimatagi prior to his attendance on site on 24 July 2014, by the following day he was sufficiently across the background facts to tell workers attending for work on that day that “the site’s closed from the vote”.
Mr Auimatagi’s involvement in the events of 24 and 25 July 2014, being much the same conduct as was pursued by others in “marshalling” and “rallying” the “Stop Work Employees” does fall within the concept of “organising” as that term is used in s 417.
The contravention alleged in para [115] has thus been made out.
Paragraph [116] of the Further Amended Statement of Claim is the counterpart allegation to that made against Mr Parker at para [59]. The reasons for rejecting para [59] apply equally to para [116]. The allegation in para [116] is thus rejected.
The CFMEU & CFMEU NSW
The potential liability of the CFMEU and the CFMEU NSW was addressed in paras [121] to [151] of the Further Amended Statement of Claim.
As with the liability pleaded against the individual Respondents, the form of the pleading as to the liability of the CFMEU and the CFMEU NSW followed a similar format. Thus, for example, paras [121] to [123] focus on the potential liability of the CFMEU and the CFMEU NSW by reason of the conduct of Mr Parker. Those paras provided as follows:
121.The conduct of Parker as pleaded in paragraphs 39, 40, 41, 42, 44, 45,
46and46 and 46A was conduct engaged in by Parker as an official of the CFMEU and CFMEU NSW within the scope of his actual or apparent authority, and as an officer, member and agent of the CFMEU and CFMEU NSW acting in that capacity, and is taken to have been conduct engaged in by the CFMEU and CFMEU NSW.122.By reason of the matters pleaded in paragraph 121, and the operation of section 793(1) and (2), section 363(1)(b) and (d), and section 361 of the FW Act, the CFMEU and CFMEU NSW contravened sections 348, 355 and 417 of the FW Act.
123.By reason of the matters pleaded in paragraphs 121 and 122, the CFMEU failed to initiate and engage in the dispute resolution procedure as required by clause 19 of the JDA, contravened clause 19 and 20 of the JDA and thereby contravened s. 50 of the FW Act.
The Eleventh and Twelfth Respondent’s Further Amended Defence pleads in response to these allegations as follows (without alteration):
121.
Except as otherwise provided in this Defence, the eleventh respondent cannot plead the fact as to whether Parker engaged in particular conduct identified in paragraph 121 because it cannot interrogate Parker without requiring him to breach his privilege against penalty. The eleventh respondent has sought to interrogate Parker who has exercised his right to claim the privilege and not answer those questions. To the extent that Parker did engage in any such conduct, the eleventh respondent admits paragraph 12.In relation to conduct or actions of the first respondent admitted by the first respondent, the eleventh and twelfth respondents admit paragraph 121. The paragraph is otherwise denied.122.
The eleventh respondent repeats paragraph 121 and cannot otherwise plead to paragraph 122 because it cannot interrogate Parker without requiring him to breach his privilege against penalty. The eleventh respondent has sought to interrogate Parker who has exercised his right to claim privilege and not answer these questions.In relation to conduct or actions of the first respondent admitted by the first respondent, the the eleventh and twelfth respondents admit paragraph 122. The paragraph is otherwise denied, including that the conducts or actions of the first respondent so admitted contravened s.348 or s.355 of the FW Act.123.
The reasons of the matter pleaded in paragraphs 121 and 122, the eleventh respondent cannot plead to paragraph 123.The eleventh respondent contravened clause 20 of the JDA and thereby contravened s.50 of the FW Act. The eleventh and twelfth respondents otherwise deny paragraph 123, and note:a.Clause 19 “Conflict resolution” of the JDA (the dispute settlement procedure) provided a process for the initiating and engagement in the dispute resolution procedure in the event of a dispute occurring within the jurisdiction of the Fair Work Act 2009.
b.the dispute settlement procedure was not invoked by either Lend Lease or any other person to which the JDA applied at in July 2014.
c.It is not mandatory to invoke the dispute settlement procedure in respect of every matter about which the dispute settlement procedure might be invoked.
d.The requirement in the Fair Work Act 2009 to include a dispute settlement procedure in an enterprise agreement approved under the Act, does not preclude matters that may be resolved under the procedure being resolved in another manner or not being resolved at all.
e.The eleventh respondent later invoked the dispute settlement procedure, and Lend Lease did not accept that there was any jurisdiction to invoke the procedure.
f.To the extent that the dispute settlement procedure ever applied, the eleventh respondent complied with its obligations under the procedure.
It should be noted at the outset that the form of the Defence as originally filed admitted the allegations as originally made. This position changed with the progress of the pleadings. The initial admission, it will be noted, was purportedly withdrawn and the allegations made were admitted in part and denied in part.
The form of these pleadings was repeated as against Mr Kera (at paras [124] to [126]); Mr Reeves (at paras [127] to [129]); Mr Genovese (at paras [130] to [132]); Mr Michael Greenfield (at paras [133] to [135]); Mr Collier (at paras [136] to [138]); Mr Darren Greenfield (at paras [139] to [141]); Mr Sloane (at paras [142] to [144]); Mr Taylor (at paras [145] to [147]); and Mr Auimatagi (at paras [148] to [150]).
The withdrawal of an admission
An initial submission advanced on behalf of the Commissioner was that the admission having first been made should not now be permitted to be withdrawn. That submission is rejected.
As a starting point, there is no general principle that an admission might or might not be withdrawn. In granting leave to withdraw an admission, the Court has a “broad discretion to weight up all matters with the overall question being to ensure that there [is] a fair trial”: Jeans v Commonwealth Bank of Australia Ltd [2003] FCAFC 309 at [18], (2003) 204 ALR 327 at 330 to 331 per Hill, Madgwick and Conti JJ. An admission, once made, may be withdrawn: Celestino v Celestino (Unreported, FCA, Spender, Miles and Von Doussa JJ, 16 August 1990). The touchstone is, with respect, whether it is in the interests of the proper administration of justice to allow an admission to be withdrawn: Centrestate Exports Pty Ltd v Amarantos Shipping Co Ltd [2005] SASC 158 at [32]. Debelle J there observed:
[4] The overriding consideration is the interests of justice. The Court will not lightly permit a party to withdraw an admission where the other party has acted to its detriment on the admission or is otherwise prejudiced by the withdrawal. It is plainly necessary to have regard to all relevant factors including the nature and importance of the admission, the circumstances in which the admission was made, whether the admission was made deliberately or inadvertently, the reason given for the application to withdraw, the detriment or prejudice which might be caused to the other party and the stage which the proceedings have reached, and whether the admission is contrary to the facts. The list of relevant factors affecting the Court’s decision will plainly vary from case to case.
See also: Novartis Pharmaceuticals Australia Pty Ltd v Bayer Australia Ltd(No 3) [2013] FCA 1323 at [12] per Robertson J.
In the circumstances of the present proceeding, to the extent that leave has not already been granted by reason of leave having been implicitly granted to file the Amended Defence, leave should be granted by reason of the fact that:
·the withdrawal of the admission did not affect the conduct of the proceeding or the evidence as it was adduced either in chief or in cross-examination; and
·the Commissioner suffers no prejudice in the granting of leave, other than the inevitable prejudice of a respondent changing its position.
The consequences flowing from the withdrawal of the admission is, accordingly, a matter of submission.
The CFMEU, the CFMEU NSW & the Joint Development Agreement
One further general conclusion may be expressed in respect to these pleadings. It is only the CFMEU that was a party to the Joint Development Agreement; the CFMEU NSW is not a party. To the extent that the Commissioner’s case depends upon a contravention of the Joint Development Agreement, or at least a failure to comply with the provisions of that Agreement, such a basis of liability must (accordingly) be confined to the CFMEU.
One series of allegations concerning this Agreement needs to be separately addressed. This series of allegations focussed upon the pleading that the CFMEU failed to initiate and engage in the dispute resolution procedure as required by cl 19 of the Joint Development Agreement and contravened cl 20 of that Agreement. By reason of this conduct, it is then alleged that the CFMEU contravened s 50 of the Fair Work Act.
Paragraphs [59], [67], [86], [92], [98], [104], [110] and [116] set forth the allegations that Messrs Parker, Kera, Michael Greenfield, Collier, Darren Greenfield, Sloane, Taylor and Auimatagi “failed to initiate and engage in the dispute resolution procedure as required by clause 19 of the JDA and breached clause 20 of the JDA and … as an official of the CFMEU contravened s. 50 of the FW Act”. Each of these allegations has been rejected upon the basis that none of these individuals were a party to the Joint Development Agreement and, accordingly, were not bound by the provisions of that Agreement. Messrs Reeves and Genovese attracted different consideration by reason of their additional status as employees of Lend Lease.
Left to one side when each of these allegations was rejected was the potential liability of the CFMEU and the CFMEU NSW.
Although it has been concluded that the series of allegations as against Messrs Parker, Kera, Michael Greenfield, Collier, Darren Greenfield, Sloane, Taylor and Auimatagi as to their having failed to initiate or engage in the dispute resolution clause as required by cl 19 of that Agreement and thereby breached cl 20 have each been rejected, it is nevertheless further concluded that:
·in engaging in the conduct that they each pursued, each was acting in their capacity as an officer, employee or agent of the CFMEU;
·the conduct thereby engaged in is to be taken for the purposes of the Fair Work Act to have been engaged in by the CFMEU; and
·the CFMEU thereby failed to engage the dispute resolution provision and breached cl 20 of the Agreement.
To this extent, paras [59], [67], [86], [92], [98], [104], [110] and [116] of the Further Amended Statement of Claim are thus accepted.
The liability of the CFMEU & CFMEU NSW – the remaining contraventions
Not all contraventions pleaded against each of the individual Respondents have prevailed.
To the extent that the allegations against each of the individual Respondents has prevailed, it is concluded that:
·in engaging in the conduct that they each pursued, each was acting in their capacity as an officer, employee or agent of both the CFMEU and the CFMEU NSW;
·the conduct thereby engaged in is to be taken for the purposes of the Fair Work Act to have been engaged in by the CFMEU and the CFMEU NSW; and
·the CFMEU and the CFMEU NSW thereby contravened those provisions of the Fair Work Act which have been contravened by the failure to engage in the dispute resolution provision and breached cl 20 of the Agreement.
Finding liability to have been made out as against both the CFMEU and the CFMEU NSW is not to preclude submissions later being entertained as to the form of any potential declaratory or other relief.
CONCLUSIONS
Many of the serious allegations made by the Commissioner have been made out.
Other allegations have failed.
The steps to be now taken include:
·the making of orders to give effect to the findings made; and
·setting the matter down for a hearing as to the relief to be granted.
These are steps which should be taken forthwith.
THE ORDER OF THE COURT IS:
The parties are to bring in Short Minutes of Orders to give effect to these reasons within fourteen days.
I certify that the preceding five hundred and forty-three (543) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Flick. Associate:
Dated: 24 May 2017
SCHEDULE OF PARTIES
NSD 467 of 2016 Respondents
Fourth Respondent:
PETER GENEVESE
Fifth Respondent:
MICHAEL GREENFIELD
Sixth Respondent:
LUKE COLLIER
Seventh Respondent:
DARREN GREENFIELD
Eighth Respondent:
TONY SLOANE
Ninth Respondent:
DARREN TAYLOR
Tenth Respondent:
RICHARD AUIMATAGI
Eleventh Respondent:
CONSTRUCTION, FORESTRY, MINING & ENERGY UNION
Twelfth Respondent:
CONSTRUCTION, FORESTRY, MINING & ENERGY UNION, NEW SOUTH WALES
- AGLC
- Australian Building and Construction Commissioner v Parker [2017] FCA 564
- Case
- [2017] FCA 564
- Decision Date
CaseChat Overview and Summary
The court found that the gravity of the allegations necessitated a high degree of proof, aligning with the quasi-criminal nature of the offences. The court emphasised the importance of clear and direct evidence to establish the alleged contraventions. It was held that the onus was on the Commissioner to affirmatively prove that the actions were not motivated by the reasons claimed by the respondents. The court also addressed the withdrawal of an admission in defence, granting leave for the respondent to withdraw their admission, and considered whether the alleged contraventions were substantially the same as those in pending criminal proceedings, ultimately refusing a stay of the proceedings.
The court concluded that many of the serious allegations made by the Commissioner had been substantiated, leading to findings of liability against the unions and individuals involved. The court directed that orders be made to give effect to these findings and scheduled a hearing to determine the form of relief to be granted. The court ordered that the parties were to bring in Short Minutes of Orders within fourteen days to formalise the findings and relief.
Orders
Orders of the court
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.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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