Australian Building and Construction Commissioner v Rielly (No 2)
[2021] FCCA 43
•12 February 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Australian Building and Construction Commissioner v Rielly (No 2) [2021] FCCA 43
File number(s): SYG 1031 of 2020 Judgment of: JUDGE DRIVER Date of judgment: 12 February 2021 Catchwords: INDUSTRIAL LAW – Fair Work – claim of coercion or threat by a trade union in order to obtain coverage under an enterprise agreement – consideration of conflicting evidence and interpretation of the applicable legislative provisions. Legislation: Competition and Consumer Act 2010 (Cth), s 45D
Fair Work Act 2009 (Cth), ss 55, 61, 172, 182, 183, 340, 341, 343, 346, 347, 348, 350, 355, 360, 361, 362, 363, 793
Fair Work (Registered Organisations) Act 2009 (Cth), s 12
Workplace Relations Act 1996 (Cth), s 298P(3)
Cases cited: ABCC v CFMEU (2017) 249 FCR 458
ABCC v CFMEU (2017) 267 IR 130
ABCC v CFMEU [2018] FCA 42
ABCC v CFMEU (The Syme Library Case) [2018] FCA 1142
ABCC v McDermott (No 2) [2018] FCA 1611
ABCC v Parker (2017) 266 IR 340
ABCC v Ravbar [2018] FCA 1196
Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (The Bay Street Case) [2018] FCA 83
Australian Building and Construction Commissioner v Hall (2018) 261 FCR 347
Australian Building and Construction Commissioner v Molina [2020] FCAFC 97
Australian Building and Construction Commissioner v Rielly [2020] FCCA 3181
Auimatagi v ABCC (2018) 267 FCR 268
Board of Bendigo Regional Institute of Technical and Further Education v Barclay (No 1) (2012) 248 CLR 500
CFMEU v Anglo Coal (Dawson Services) Pty Ltd (2015) 238 FCR 273
CFMEU v De Martin & Gasparini Pty Limited (No 2) [2017] FCA 1046
Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The Bay Street Appeal) [2020] FCAFC 192
Construction, Forestry, Mining and Energy Union v McCorkell Constructions Pty Ltd (No 2) (2013) 232 IR 290
Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2015] FCA 225
Director, Fair Work Building Industry Inspectorate v CFMEU (No 2) [2015] FCA 199
Director, Fair Work Building Industry Inspectorate v CFMEU [2015] FCA 1293
Director, Fair Work Building Industry Inspectorate v CFMEU [2015] FCA 353
Director, Fair Work Building Industry Inspectorate v CFMEU (The Red and Blue Case) [2015] FCA 1125
Director, Fair Work Building Industry Inspectorate v Robinson (2016) 241 FCR 338
Employment Advocate v Williamson (2001) 111 FCR 20
Esso Australia Pty Ltd v AWU (2016) 245 FCR 39
Esso Australia Pty Ltd v AWU (2017) 350 ALR 404
Hadgkiss v Blevin [2004] FCA 697
Laing v CFMEU (No 2) (2006) 155 IR 244
Newton v Australian Postal Corporation (No 2) [2019] FCA 2192
PIA Mortgage Services Pty Ltd v King (2020) 274 FCR 225
Qantas Airways Ltd v Australian Licensed Aircraft Engineers Association (2012) 202 FCR 244
Ramos v Good Samaritan Industries (No 2) [2011] FMCA 341
Sid Ross Agency Pty Ltd v Actors and Announcers Equity Association of Australia [1971] 1 NSWLR 760
Torquay Hotel Co Ltd v Cousins [1969] 2 Ch 106
Williams v CFMEU (2009) 179 IR 441
Number of paragraphs: 212 Dates of hearing: 27 October, 19 November, 3 December 2020 Place: Sydney Counsel for the Applicant: Mr M S White SC Solicitors for the Applicant: Clayton Utz Counsel for the First and Second Respondents: Mr I Latham Solicitors for the First and Second Respondents: Taylor & Scott Lawyers
Solicitors for the Third Respondent: Mr I Simic of Taylor & Scott Lawyers ORDERS
SYG 1031 of 2020 BETWEEN: AUSTRALIAN BUILDING AND CONSTRUCTION COMMISSIONER
Applicant
AND: DEAN RIELLY
First Respondent
PAUL FITZPATRICK
Second Respondent
CONSTRUCTION, FORESTRY, MARITIME, MINING AND ENERGY UNION
Third Respondent
ORDER MADE BY:
JUDGE DRIVER
DATE OF ORDER:
12 FEBRUARY 2021
THE COURT ORDERS THAT:
1.Within 14 days, the applicant shall provide short minutes of declarations to be made by the Court, consistent with the reasons in this judgment.
REASONS FOR JUDGMENT
JUDGE DRIVER
INTRODUCTION AND BACKGROUND
By an application under the Fair Work Act 2009 (Cth) (Fair Work Act) filed on 28 November 2019, the applicant, the Australian Building and Construction Commissioner (the Commissioner) seeks declaratory relief and other orders (including for penalties) against three respondents. The first respondent, Dean Rielly, is an official of the third respondent, the Construction, Forestry, Maritime, Mining and Energy Union (the Union). The second respondent, Paul Fitzpatrick, is also an official of the Union.
The application is supported by a further amended statement of claim (FASOC) filed on 19 October 2020. The application is also supported by affidavits of Rodney Gray made on 2 July 2020, Jason Percival made on 30 July 2020, and Craig Whitaker made on 30 July 2020. They were all required for cross-examination. The Commissioner also relied upon a witness statement by Jason Ryan made on 22 March 2019. I received the witness statement by Mr Ryan on a limited basis[1] as he was unavailable for cross-examination. A draft affidavit had been prepared for Mr Ryan but he had declined to sign it. I declined to receive the affidavit.
[1] Australian Building and Construction Commissioner v Rielly [2020] FCCA 3181
The Commissioner also put into evidence a number of documents.
The respondents have filed defences and Mr Rielly filed an amended defence on 16 November 2020. Mr Rielly also made an affidavit on 11 November 2020 on which he was cross-examined. The respondents also rely upon an affidavit by Timothy McCauley made on 11 November 2020. Mr McCauley was not required for cross-examination.
The following background statement, the description of the relevant industrial context and the legislative framework is derived from the submissions of the parties.
These proceedings concern events that occurred between January and March 2019 with regard to the construction of extensions worth $120 million to Coffs Harbour Hospital by Health Infrastructure, a division of NSW Health, at 345 Pacific Highway, Coffs Harbour in New South Wales (the Project).
The principal contractor for this construction work was CPB Contractors Pty Ltd (CPB). CPB operated a Precast Facility Yard at the corner of Engineering Drive and Industrial Drive, North Boambee Valley (the Yard) at which it manufactured precast concrete elements for the Project, transported after their manufacture to the Project by CPB for installation.
I heard the evidence on 27 October and 19 November 2020. On the second of those days I decided in my discretion not to entertain a no case submission by Mr Rielly and Mr Fitzpatrick. The parties’ submissions nevertheless address the issues raised on the putative no case submission.
The events allegedly involve contraventions by the respondents of civil penalty provisions of the Fair Work Act, specifically:
(a)section 348 – a person must not threaten to organise or take action against another person with an intent to coerce the other person to engage in industrial activity: allegedly contravened by each of Mr Rielly and Mr Fitzpatrick;
(b)section 355 – a person must not threaten to organise or take any action against another person with an intent to coerce the other person to employ or not employ a particular person (s 355(a)), or to engage or not engage a particular independent contractor (s 355(b)): allegedly contravened by each of Mr Rielly and Mr Fitzpatrick;
(c)section 346 – a person must not take adverse action against another person because the other person engages in industrial activity, including, by reason of s 362, by advising, encouraging or inciting someone else to take such adverse action against that other person: allegedly contravened by Mr Rielly; and
(d)section 340 – a person must not take adverse action against another person because the other person had not exercised a workplace right by making an enterprise bargaining agreement (s 341(2)(e)), including, by reason of s 362, by advising, encouraging or inciting someone else to take such adverse action against that other person: allegedly contravened by Mr Rielly.
The Commissioner relies on ss 363 and 793 of the Fair Work Act to contend that the Union is also taken to have engaged in the conduct of Mr Rielly and Mr Fitzpatrick and also contravened each of the above provisions.
The Commissioner also relies on s 361 of the Fair Work Act in relation to the mental element of the alleged contraventions, the intent to coerce in the case of ss 348 and 355, and the advising and encouraging and inciting of CPB for a particular reason in s 362 (leading to alleged contraventions of ss 340 and 346 by Mr Rielly).
The final position of the respondents is:
(a)Mr Rielly filed an amended defence denying each of the alleged contraventions and some of the facts forming their basis;
(b)Mr Fitzpatrick has maintained a claim of privilege against exposure to civil penalties and has not filed any amended defence and elected to call no evidence; and
(c)the Union has filed an amended defence reflecting Mr Rielly’s amended defence and Mr Fitzpatrick’s defence (so far as it applies to him) and has called no evidence of its own.
Some formal matters are not in dispute:
(a)the Commissioner is entitled to apply for the relief sought in relation to the contraventions under his statutory powers in the Fair Work Act;[2]
[2] FASOC at [1]; respondents’ defences at [1]
(b)each of Mr Rielly and Mr Fitzpatrick was at the relevant times a member, and employed officer, agent and official of the Union;[3]
[3] FASOC at [2]-[3], respondents’ defences at [2]
(c)CPB operated the Yard;[4]
[4] FASOC at [6], respondents’ defences at [6]
(d)the Union was an “industrial association” within the meaning of s 363 and a “body corporate” within the meaning of s 793.[5]
[5] FASOC at [4], respondents’ defences at [4]
On 27 October 2020 at the trial, the Commissioner presented evidence from the following witnesses:
(a)Mr Percival – Production Superintendent employed by CPB located at the Yard in March 2019;
(b)Mr Whitaker – the Manager of the Yard in March 2019;
(c)Mr Gray – previously employed as a project Director by CPB, located at the Project site in March 2019; and
(d)Mr Ryan – a Project Manager employed by CPB in relation to the Project at the relevant times.
Mr Ryan was at the time of the trial (and presumably is still) located overseas, and his served witness statement was the subject of an application by the Commissioner under ss 63 and 64 of the Evidence Act 1995 (Cth) for leave to tender the statement at the hearing. On 27 October 2020 I ruled on that application by accepting into evidence Mr Ryan’s witness statement and annexures, including text messages sent to him by Mr Rielly in February 2019, on a limited basis as evidence of the representations and statements in them, but not as to the truth of the statements of fact. Mr Rielly does not deny sending the text messages to Mr Ryan[6].
[6] Rielly affidavit at [18]; Rielly Amended Defence at [15]
The industrial context of the alleged contraventions
In early 2019 CPB employed four full time workers at the Yard to manufacture elements for the Project, all of whom were covered by the Leighton Contractors Coffs Harbour Precast Facility Agreement 2015-2019, which had a nominal expiry date of 23 March 2019 (the CPB EBA[7])[8]. The CPB EBA identified the Australian Workers’ Union (AWU) as the relevant “union” covered[9].
[7] Enterprise Bargaining Agreement
[8] [2015] FWCA 1985, Percival affidavit annexure JBP-01, Court Book (CB) 75 and 228. This is not disputed, Rielly Amended Defence at [9]
[9] CB 227-273, TAB 17, clause 2 (definition of “Parties” and “Union”), clause 38 (signatories)
On 4 March 2019 Brad Hooper, the Industrial Relations Manager of CPB, possibly with Mr Percival and Mr Whitaker, met with the CPB employees at the Yard and provided them with a proposed new CPB EBA for consideration[10]. The new EBA was later agreed to and was lodged and approved on 13 June 2019[11].
[10] Percival Statement dated 28 March 2019 at [15], Whitaker Statement dated 28 March 2019 at [18]. See also Transcript (T), 27 October 2020, pages 56:15 – 57:33 (Percival XXN), pages 73:40 – 74:7 (Whitaker XXN)
[11] [2019] FWCA 4092; McCauley affidavit, annexure TM-2
CPB also engaged a labour hire company, Telum Precast (Qld) Pty Ltd (referred to as “Telum”), which provided approximately 40 workers to the Yard. Those workers were not covered by any Union EBA, but are said to have been covered by a non-union EBA known as the TCL Solutions Pty Ltd Enterprise Agreement 2016[12].
[12] [2016] FWCA 8995; Exhibit A3, CB 274 Percival Statement at [13] and [14]; T page 42.1-7 (Percival)
There was in existence at the relevant time a separate Union EBA that covered the CPB construction workers located at the Project site (but not the Yard), known as the CPB Contractors CFMEU New South Wales Building Agreement 2018, with a nominal expiry date of 31 December 2018.[13]
[13] [2018] FWCA 4902; T 19 November 2020, pages 24:39-25:8 (Rielly)
As noted above, the Commissioner seeks declarations and orders in relation to a number of sections in the Fair Work Act. The respondents understand that while there are overlapping pleadings, and the while other provisions of the Fair Work Act may be relevant, the following distinct contraventions appear to be pleaded:
(a)section 340 of the Fair Work Act by threatening to organise or take action against CPB because Telum had engaged in industrial activity, namely that it did not advance the claims or interests of an industrial association;[14]
[14] FASOC at [42]
(b)section 340 of the Fair Work Act by advising, encouraging or inciting CPB to take action against Telum, namely, to terminate its contract with Telum because Telum had not exercised a workplace right, namely it had not made an enterprise agreement with the Union;[15]
[15] FASOC at [47]
(c)section 346(b) of the Fair Work Act by advising, encouraging or inciting CPB to take action against Telum, namely, to terminate its contract with Telum because Telum had not exercised a workplace right;[16]
[16] FASOC at [44]
(d)section 348 of the Fair Work Act by threatening to organise or take action against CPB with an intent to coerce CPB to engage in industrial activity, namely complying with a request that CPB ensure its employees become members of the Union, be covered by a Union EBA, and terminate its contract with Telum and instead engage a labour hire business approved by the Union whose workers were covered by enterprise agreement to which the Union was a party;[17] and
[17] FASOC at [22]
(e)section 355 of the Fair Work Act by threatening to organise or take action against CPB with an intent to negate the choice of CPB to employ or not employ a particular person, or to engage or not engage a particular independent contractor.[18]
[18] FASOC at [32]
Mirror pleadings exist as to Mr Fitzpatrick (not all contraventions) and the Union. The Union’s alleged liability is entirely derived from the conduct of Mr Rielly and Mr Fitzpatrick.
The Commissioner’s central case is that Mr Rielly sought that the CPB site be covered by an enterprise agreement covering the Union. The respondents contend that, even if that demand was made, it was not unlawful. There is said to have been no workplace right to make such an agreement. The respondents assert that the subsidiary claims as to Telum fail for different reasons, being that at no stage did it ever receive, let alone entertain, a claim from the Union.
The legislative framework
The framework for determining wages and conditions for the vast majority of Australian workers is set out in the Fair Work Act. That sets out three different industrial instruments protecting wages and working conditions for employees. The first is the National Employment Standards (NES), being the national safety net of legislative standards such as maximum weekly hours.[19] These standards are made by Parliament. Sitting above the NES are Modern Awards which provide industry-wide benefits. These are made by the Fair Work Commission. Above that is the Enterprise Agreement; an enterprise-focussed collective agreement. These are negotiated by the employer and employees and approved by the Fair Work Commission.
[19] see s 61 of the Fair Work Act
The legislative regime for the negotiation of enterprise agreements is straightforward. An employer may negotiate an enterprise agreement with its workforce and their bargaining representatives (if there are any). As the Explanatory Memorandum to the Fair Work Bill (the Explanatory Memorandum) states at [640]:
Part 2-4 provides for the making of enterprise agreements through collective bargaining primarily at the enterprise level. It enables employers and employees, and their bargaining representatives, to bargain in good faith to make an enterprise agreement.
If a majority of the workforce then agrees, the agreement is made by a vote of the employees and the Fair Work Commission may approve the agreement. The parties to the agreement are the employer and the employees. A union cannot be a party to an enterprise agreement but may be covered by it.
As the Explanatory Memorandum states at [753]:
After an enterprise agreement has been made, an employee organisation that was a bargaining representative for a proposed agreement may notify FWA, in writing that it wants to be covered by the agreement. (For the rules on coverage, see clause 53.) When an employee organisation is covered by an agreement, it will have certain entitlements that it would not otherwise have. For example, an employee organisation that is covered by an agreement would be able to enforce the agreement to ensure that the employer is meeting its obligations.
The enterprise agreements
The Commissioner pleads that both the former and the new enterprise agreement for CPB (formerly Leighton) were entered into with the AWU. Although the evidence is scant and somewhat confusing, I proceed on the basis that the AWU is covered by the relevant EBAs.
There is said to be some demarcation dispute between the Union and the AWU. The objective evidence of such dispute is limited but includes articles in two newspapers. The AWU does not appear to have been active at the CPB workplace.
The enterprise agreement for Leighton
The former enterprise agreement[20] is expressed to apply to the employees.[21] It has a definition of "parties" which appears to apply to signatories.[22] No union is a signatory.[23] The agreement has no union party to it but the AWU is identified as the relevant union.[24]
[20] Leighton Contractors Coffs Harbour Precast Facility Agreement 2015-2019
[21] CB 80 at clause 3.1
[22] CB 117
[23] CB 79 at clause 2
[24] CB 117
The new enterprise agreement for CPB
The new enterprise agreement[25] can be found at the Respondents' Court Book (RCB) at page 96. Attached to the agreement is a copy of the application to the Fair Work Commission to approve the agreement and a copy of the statutory declaration made by CPB filed in the Fair Work Commission in support of the application for approval.
[25] CPB Contractors Coffs Harbour Precast Facility Agreement 2019-2023
The application states that there were no unions involved in the agreement making process.[26] None of the employees appointed a bargaining representative.[27]
[26] RCB 159 at [4.1]
[27] RCB 160 at [5.1]
The statutory declaration states that:
(a)no term of the agreement is detrimental to an employee when compared to the NES;[28]
[28] RCB 145 at [2.12]
(b)the agreement does not confer any entitlements that are not conferred on them by the modern awards;[29] and
[29] RCB 150 at [3.4]
(c)Mr Hooper, Mr Whitaker and Mr Percival held a site meeting with all of the employees to discuss the proposed new agreement[30].
[30] P 2.5 RBC 142–143 at [2.5]. Mr Percival gave evidence that he was not at the meeting on 4 March 2019 (T 27 October 2020, page 56:12-13). Nor could he remember Mr Hooper being there (T 27 October 2020, page 57:19). Mr Whitaker gave evidence that he did not sit in on the meeting (T 27 October 2020, page 84:9)
The agreement generally adopts the NES and includes rates of pay and some allowances that are higher than the Modern Premixed Concrete Award.
The Fair Work Commission approved the agreement after accepting undertakings from CPB. CPB gave undertakings that the NES would apply when they were inconsistent with the agreement. The making of that undertaking is said by the respondents to have contemplated that the agreement had lower benefits than the NES.[31]
[31] RCB 135
The AWU is identified as the “union” in clause 2 of the agreement.
The Telum Agreement
The Commissioner submits that the Telum workers were covered by the TCL Solutions Pty Ltd Enterprise Agreement 2016 (the TCL Agreement). The Commissioner’s opening submissions stated that:[32]
[32] T 27 October 2020, page 7:12-18
What, in fact, happened was Tellam Precast Queensland Proprietary Limited provided the labour hire workers, but they were employed by a related company called TCL Solutions Proprietary Limited. And TCL Solutions Proprietary Limited had an enterprise agreement, the TCL Solutions Proprietary Limited Enterprise Agreement 2016, which covered those workers.
That submission is supported by the TCL Solutions EBA at CB 277. The labour hire contract is also in evidence at CB 203. It is between Leighton and Telum Precast (Qld). That is obviously a different company to TCL Solutions. The contract confusingly states that Telum Precast is providing its own employees,[33] not the employees of another company. It is not permitted to subcontract any of the services to anyone else without the written approval of Leighton.[34]
[33] Clause 2, P 4.6 CB 205; 6.1 CB 206; 11.3 CB 206; CB 208; 20.2 (o)(i), (ii) CB 209
[34] CB 208 at clause 18.1(b)
The TCL Agreement
The TCL Agreement applied to the employees of TCL Solutions.[35] There is no evidence that any employees of TCL Solutions Pty Ltd worked at the site. It appears that the TCL Agreement was as a matter of practical reality applied to the employees of Telum Precast Queensland at the precast site.
[35] CB 279 at clause 2.1
The Commissioner does state at [13] of his submissions that the TCL Agreement applied to the Yard workers. That is said to be proven by reference to the evidence of Mr Percival at [13] and [14] of annexure JP-01 to his affidavit and the transcript at page 42:1-7. Mr Percival was, perhaps understandably, somewhat confused. Paragraphs 13 and 14 of Annexure JP-01 to his affidavit state:
CPB also engage a labour higher company Telum Labour Hire (Telum) to provide workers at the yard. Approximately 38 Telum workers work at the yard. This number fluctuates depending on the amount of work needs to be completed.
Employees of Telum are covered by the concrete products award.
The transcript at page 42 states:
MR WHITE: Mr Percival, can you tell his Honour what that document is? [being Tab 16 Minor Works and/or Services Contract between Leighton Contractors Pty Limited and Telum Precast (Qld) Pty Ltd] —That’s the EBA from Tellam Precast.
Sorry, did you just say is it – it’s an EBA?---Well, it’s a labour hire agreement between CPB and Tellam Precast.
And is that the agreement that you refer to in your statement?---Correct.
In fact, the only agreements referred to in Mr Percival's statement are the Leighton Contractors Coffs Harbour Precast Facility Agreement 2015-2019[36] and the CPB Contractors Coffs Harbour Precast Facility Agreement 2019-2023 at [25]. Mr Percival does not state that he discussed any Telum EBA or with Mr Rielly or Mr Fitzpatrick. Mr Whitaker similarly does not mention any Telum EBA, and his affidavit at [3] states that when he states "AWU EBA" in [25] of his statement, he does not think that Mr Rielly referred to an "AWU EBA". Mr Gray's affidavit and statement again does not mention any discussion of a Telum EBA with Mr Rielly, and neither does the admitted statement of Mr Jason Ryan dated 22 March 2019.[37] The discussions between Mr Rielly and Mr Fitzpatrick, and Mr Gray, Mr Percival and Mr Ryan about Telum needs to be viewed in this context of some confusion as to the applicable industrial instrument.
[36] at [12], annexed at JBP-01
[37] noting that the statement of Mr Ryan was not admitted as to its truth: [2020] FCCA 3181 at [2]
The CPB Agreement
The Commissioner refers to a CPB Contractors CFMEU New South Wales Building Agreement 2018.[38] That agreement is said to be a "separate CFMMEU EBA". The Commissioner states that the agreement covered the CPB construction workers at the Project site. The Union is not a party to that agreement. It did however seek to be covered by the agreement. The Commissioner noted that the agreement did cover the Union.
[38] at [14] of the Commissioner’s submissions
The pleadings
The Federal Court has made it clear that civil penalties applications must be clearly pleaded. As the Full Federal Court has held in Australian Building and Construction Commissioner v Hall (2018) 261 FCR 347 at [50]:
[T]he respondents were entitled to be told clearly and precisely in the Commissioner’s ASOC what case it was they had to meet and, unless they deliberately chose to allow the case to be conducted on a different basis, to direct their evidence and arguments to that case and that case alone. Plainly, this latter exception did not permit the Commissioner to make a significant addition to, or departure from, the pleaded case, in counsel’s opening or closing submissions and then seek to justify that course by pointing to the respondents’ failure to object as evidence of their acquiescence in that course.
44The alleged contraventions must then be proven to the Briginshaw standard. As Flick J held in ABCC v Parker (2017) 266 IR 340 at [59]:
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.
As noted above, at the trial, the respondents sought to dispose of the application on the basis of a no case submission. I declined to entertain that submission in the exercise of judicial discretion, noting, among other things, that Mr Rielly had filed an amended defence in which he engaged with the allegations against him, and I considered it unfair to compel him to elect not to call any evidence. I left open the opportunity for the respondents to make no case submissions in their closing submissions.
CONSIDERATION
The allegations against Mr Rielly and Mr Fitzpatrick
The Commissioner’s submissions
The evidence is said to establish that Mr Rielly and Mr Fitzpatrick made threats of organising or taking action against CPB.
The Commissioner contends that Mr Rielly found out that CPB had been awarded the contract for the Project, including the supply of precast products by the Yard, by January 2019.[39] He knew that CPB had a Union EBA covering its employees at the main Project site, but not one covering workers at the Yard. He knew the EBA covering CPB employees in the Yard was not a Union EBA but involved the AWU which “traditionally” covered workers in civil construction projects.[40] Mr Rielly formed an ambition to “organise” the Yard, that is, to be allowed access to the employees for the purpose of increasing Union membership and making a Union EBA with CPB and whatever labour hire workers were engaged in the Yard. Prior to approaching CPB managers in March 2019 Mr Rielly had spoken to the workers at the Yard and knew they were employees of Telum and that Telum did not have a Union EBA[41]. He was aware that Telum (in its guise as TCL Solutions) had some EBAs with the AWU.[42] Indeed, he had been involved in 2016 or 2017 with trying to get involved with the EBA applying to the entity known as CPB Precast.[43]
[39] Rielly Affidavit at [6]
[40] T 19 November 2020, pages 25:10-17, 26:10-11 - 27:37-28:2
[41] Rielly Affidavit at [5]; T 19 November 2020, pages 22:28-39 - 26:5-8
[42] T 19 November 2020, page 23:34-38
[43] T 19 November 2020, page 25:31-40
Mr Rielly contacted Mr Gray by telephone to arrange a meeting to discuss the Project. In that initial telephone conversation, Mr Rielly proposed the Union delegate from the Grafton Gaol project, Donnie, be employed by CPB at the Project.[44]
[44] Rielly Affidavit at [9] and [13(a)] and page 12 note (annexure DR-1)
Mr Rielly met with Mr Ryan and Mr Gray on 25 January 2019, at a pre-arranged meeting at the café at the Coffs Harbour Specialist Medical Centre. The Commissioner contends that at that meeting Mr Rielly:[45]
[45] Ryan Statement at [21]
(a)told Mr Ryan and Mr Gray to make sure the workers in the Yard were members of the Union;
(b)said he would provide them with the names of Union preferred sub-contractors for engagement at the Yard; and
(c)told them not to engage Telum at the Yard.
Mr Gray was cross-examined about the matter in subparagraph (b) above and maintained that Mr Rielly said he had contractors whom he could recommend for the Project.[46] He was not cross‑examined about the other two matters.
[46] T 27 October 2020, pages 16: 31–41, 20: 7–17
Mr Rielly admits the meeting occurred and that he again proposed that CPB employ Donnie.[47] In his affidavit Mr Rielly did not deny the contents of Mr Ryan’s statement as to what was said at the 25 January 2019 meeting. He denied making the statements in [49(a)] and [49(c)] above, but the Commissioner submits his denial should not be accepted. Mr Rielly agreed he did not want Telum used at the Yard.[48] On 4 March 2019 he told Mr Gray to replace them with the Lack Group (see below). It is said to be consistent with these facts that Mr Rielly told Mr Ryan and Mr Gray on 25 January 2019 not to use Telum at the Yard.
[47] Rielly Affidavit at [15] and page 14 note (Annexure DR-1); T 19 November 2020, page 29:4-5 (Rielly)
[48] T 19 November 2020, page 30:25
On 11 February 2019 Mr Rielly texted Mr Ryan the names of Mr Rielly’s preferred sub-contractors including “Lack Group” for “traffic and labour hire”.[49] All of the sub-contractors except one were covered by Union EBAs.[50] At the time K & D Traffic Management Pty Ltd, trading as Lack Group, employed workers covered by the K & D Traffic Management Pty Ltd t/as Lack Group/CFMEU Collective Agreement 2018.[51]
[49] Ryan Statement at [23] and attachment “JR-01”, CB 146. Mr Rielly has admitted that he sent texts, in the context of putting forward contractors, reading “Lack Group” and “Traffic and labour hire”: Rielly Amended Defence at [15]
[50] T 19 November 2020, page 31:36
[51] [2018] FWCA 858; Exhibit A5, CB 296; FASOC at [16], Defences of Mr Rielly and Mr Fitzpatrick at [16]; T 19 November 2020, page 33:14
On 28 February 2019 Mr Rielly sent further text messages to Mr Ryan stating the Union had issues with two concrete contractors, neither of which were covered by a Union EBA, asking whether the employees in the Yard were direct employees or labour hire employees and asking Mr Ryan to call him because he had an issue with the Yard.[52] The purpose of the former enquiry is said to have been to work out with whom Mr Rielly needed to seek to make a Union EBA.[53]
[52] CB 147
[53] Rielly Affidavit at [24]
The Commissioner submits that on 4 March 2019 Mr Rielly telephoned Mr Gray and told him that:[54]
[54] Gray Statement at [24]
(a)“we” (that is, the Union) had a problem with the workers at the Yard because they were AWU members and they “need to be” Union members;
(b)the Telum workers were not being paid properly and Mr Rielly preferred that “Corrlack” be used by CPB as the labour hire contractor;
(c)he was going to visit the Yard to solve the problem and proposed making an EBA with CPB; and
(d)“we” (that is, the Union) may have a problem with CPB’s precast products and may have to prevent them coming onto the Project site.
Mr Gray’s account of these key matters is said to be corroborated by a contemporaneous post‑it note and a fuller diary note.[55] In cross-examination he said he probably wrote the diary note “within a day or so” of the conversation, and that it would not have been a week later.[56]
[55] Gray Statement, attachment “RG-01”, CB 64
[56] T 27 October 2020, page 21: 4–10 (Gray)
That diary note records 10 points discussed in the telephone conversation with Mr Rielly:
Dean Riley CFMEU called me
1.Mention problem with precast yard they are AWU, need CFMEU workforce
2.Tellum workforce a problem not being paid correctly
3.Prefers Lack Corrlack
4.EBA agreement
5.I will discuss with our company at precast yard
6.We will have a problem and may have to prevent delivery of precast
7.I mention we could have a concrete company and steel fixing CFMEU
8.Also crane company Coffs Cranes [illegible]
9.Mention will have to visit Precast Yard
10.Wanted me to come back later this week
(errors in original)
The post-it note, which Mr Gray described as “the conversation”, meaning it was written at the time of the conversation, also records “AWU – Telham → CEMFU EBA”, indicating that Mr Rielly had made reference to the AWU/Telum link and the need for a Union EBA.
Although he did not give all of the same details of the conversation in cross-examination,[57] it was not put to Mr Gray that they were not said (only that the limited statements put to him in cross-examination were “pretty much” the conversation).[58] The Commissioner submits that in any event his recollection “within a day or so” of the conversation should be preferred to any recollection in the witness box, in response to a “narrow and evasive series of questions”, which did not directly challenge his evidence, some 18 months later.
[57] T 27 October 2020, pages 23:46 – 24:30
[58] T 27 October 2020, page 24: 27
In his Amended Defence Mr Rielly for the most part denied the conversation as pleaded,[59] however, in his affidavit he admits points 2, 3 and 4, does not deny points 7 and 8, and accepts he may have said point 9.[60] In relation to point 4, Mr Rielly agrees that during the telephone call with Mr Gray on 4 March 2019, and in an earlier meeting with Mr Gray and Mr Ryan, he had suggested that CPB enter into an enterprise agreement with the Union[61]. In cross-examination Mr Rielly accepted points 5, 7 and 8[62]. In effect he only denied points 1 and 6. The Commissioner submits that it is highly unlikely that Mr Gray made an otherwise accurate note of the conversation contemporaneously except for points 1 and 6, the two points that expose Mr Rielly to contraventions. To accept Mr Rielly’s version is to conclude that Mr Gray just made up points 1 and 6, for which he had no identified motive. Mr Rielly produced no note of this conversation,[63] and, implausibly, said he did not keep notes of telephone conversations in his notebook.[64]
[59] Rielly Amended Defence, at [17]
[60] Rielly Affidavit at [29], [30], [31], [34] and [35]; T 19 November 2020, page 36:15-23 (Point 9), page 37:15-17 (Point 2)
[61] Rielly Affidavit at [26] and [29]; T 19 November 2020, page 34:41-42 (Rielly)
[62] T 19 November 2020, page 38:7-14 (Point 5), page 38:25-40 (Point 7), page 39:4-12 (Point 8)
[63] T 19 November 2020, page 40:28
[64] T 19 November 2020, page 40:41
On the following day, 5 March 2019 (and the day following the conversation with Mr Gray and the provision of a new proposed non-Union CPB EBA to the CPB employees at the Yard), Mr Rielly and Mr Fitzpatrick attended at the Yard and met with Mr Percival and Mr Whitaker. The Commissioner contends that in that meeting:
(a)Mr Rielly said Union EBAs cover all work carried out relating to building projects and the workers at the precast yard needed to be covered by a Union EBA for all work supplying the hospital project;
(b)there was a discussion about a separation or division of the Yard between AWU and Union workers and how this was unfeasible, Mr Whitaker telling Mr Rielly it would make the Yard uncompetitive;
(c)Mr Rielly said the AWU workers (or the workers under the AWU EBA) are underpaid and the Union wanted to get hold of the Yard because they are underpaid;
(d)Mr Rielly said the Telum workers were paid “shit money” which was why the Union wanted to move the Yard onto a Union EBA;
(e)Mr Rielly said to Mr Percival and Mr Whitaker: “Unless all of the workers including labour hire at the precast facility are covered by a CFMEU EBA then any precast manufactured for the Coffs Harbour Hospital will be turned around at the gate and not unloaded”;
(f)Mr Fitzpatrick then said “Yeah, that’s going to happen”; and
(g)Mr Rielly became aggressive and reinforced the threat by citing previous incidents where the Union had taken the same action, namely preventing the delivery of precast products to other construction sites, including the Grafton Gaol project and a Gold Coast project.[65]
[65] Percival Statement at [20] (CB 72-74), Whitaker Statement at [25] (CB 134-135)
The Commissioner submits that, as to the matters said by Mr Rielly, Mr Percival and Mr Whitaker, Mr Percival and Mr Whitaker presented as straightforward witnesses. Both made appropriate concessions as to matters they could not recall, but they were clear and certain about the statement made by Mr Rielly, including the threat Mr Rielly made. They both maintained in cross-examination, several times, that words constituting the threat set out in subparagraph [60(e)] was said.[66] Mr Percival maintained that Mr Rielly said “he had done it [turned trucks around] on other projects”,[67] and Mr Whitaker specifically recalled Mr Rielly saying something about trucks being turned around at the Grafton Gaol project[68] and mentioning a Gold Coast project.[69]
[66] T 27 October 2020, page 58:33–37, page 59:1–15, page 61:34–35 (Percival XXN), page 78:20–24, page 79:7‑17, page 80:5–6, page 80:43 (Whitaker XXN); see also page 65:5–12 (Whitaker XN)
[67] T 27 October 2020, page 58: 39- 41
[68] T 27 October 2020, page 77:29-33, page 81:1- 4
[69] T 27 October 2020, page 80:45- 46
Mr Rielly accepted in cross-examination that the matter in [60(b)] was discussed.[70] He accepted he said something very close to the matter in at [60(a)],[71] which he states is a reference to Union membership coverage. He also accepted that he said something similar to the matter in [60(d)] and that it necessarily involved replacing Telum with the Lack Group.[72] He denied he made reference to the Union achieving similar outcomes at other projects, even though whether or not what he was saying was technically correct does not exclude the likelihood that he was prepared to say anything to underline the seriousness of the threat he was making. He agreed he did refer to Grafton Gaol, John Holland and Austral Precast, their relevance said to be examples of other Union action intended to reinforce the threat he had made.[73]
[70] T 19 November 2020, pages 42:44 - 45:11
[71] Rielly Affidavit at [44]; T 19 November 2020, page 42:29
[72] Rielly Affidavit at [46]-[48] and [53], T 19 November 2020, pages 44:4 - 45:17
[73] T 19 November 2020, page 46:1-23
In the no case submission of the respondents, it was asserted that the evidence did not support that part of the pleading relating to this conversation which referred to a requirement by Mr Rielly that the workers at the Yard be Union members. The Commissioner submits that there is in fact ample evidence that Mr Rielly made demands that CPB ensure its workers were members of the Union:
(a)Mr Rielly made this demand of Mr Gray, accompanied by the statement that the Union may have to turn the trucks around from the site;[74] neither statement was challenged in cross-examination; they are also recorded in Mr Gray’s diary note of the 4 March 2019 conversation as point 1,[75] made “within a day or two” of the conversation;
[74] Gray Statement at [24]
[75] Annexure RG-01, CB 64
(b)Mr Percival gave evidence that such a demand was made;[76]
[76] T 27 October 2020, page 59:2-3; page 59:11-13
(c)Mr Whitaker also gave evidence that such a demand was made;[77] and
[77] T 27 October 2020, page 78:20-32; page 79:8-12
(d)a similar demand is recorded by Mr Ryan in his file note of his conversation with Mr Rielly on 14 March 2019.[78]
[78] Annexure JR-02, CB 148
The Commissioner submits that, in any event, ensuring that the workers were covered by a Union EBA practically includes the workers joining the Union as members to be covered by a Union EBA. The confluence of the two notions is said to be evident in how Mr Percival and Mr Whitaker understood what was being conveyed to them.
Furthermore, whether or not there is evidence to support a finding that Mr Rielly demanded the workers join the Union as members does not mean that the Court cannot find a contravention of ss 348 and 355 on the basis of the demand that the workers be covered by a Union EBA.
In relation to Mr Fitzpatrick, although when cross-examined neither witness recalled him saying the words set out in [60(f)],[79] it is recorded in the witness statements of Mr Percival signed on 28 March 2019 “when his memory was fresh”.[80]
[79] T 27 October 2020, page 61:37–38 (Percival XXN), page 82:37–38 (Whitaker XXN)
[80] Percival Statement at [24]
The conversation as testified to by Mr Percival and Mr Whitaker is said to be supported by the statements they drafted on the day following the conversation.[81] Although both witnesses were challenged about the provenance of these statements, mostly by reference to a document identification number in the bottom left-hand corner of each document, the answer to that emerged clearly from Mr Whitaker’s evidence: Mr Hooper sent each witness a “pro forma” or template document, limited to prompts as to formal matters at [1] to [4], and he asked them to write down their account of the events, which they did.[82] There is nothing sinister to be drawn from the fact that CPB’s industrial relations manager, apprised of a threat such as that made by Mr Rielly, should ask that his managers record it formally, because it is proper procedure and consistent with his duties. Mr Hooper provided some comments to Mr Whitaker, but those were innocuous matters of form. Both witnesses maintained strongly that the statements recorded their own words.[83] They are different and the recording of the specific threat made by Mr Rielly is not identical. Mr Percival gave a simple and powerful explanation for the similarity between the way his and Mr Whitaker’s statements recorded the words said by Mr Rielly: “Well, that’s what he said so that’s why it’s written the way it is”.[84]
[81] Annexure JBP-03, CB 123, and annexure CW-02, CB 138, supplemented by Exhibit A4
[82] T 27 October 2020, page 71:29 – page 72: 3
[83] T 27 October 2020, page 48:8 (Percival XXN), page 72:39–46 (Whitaker XXN)
[84] T 27 October 2020, page 61:1–2
The Commissioner submits that in these circumstances, the account of the 5 March 2019 meeting set out in the statement of Mr Percival and Mr Whitaker and as pleaded in [19] of the FASOC should be accepted.
The Commissioner contends that Mr Percival and Mr Whitaker took the threat as serious and believed it would be carried out.[85] If carried out, the threatened action would have caused serious disruption of the Yard and the Project by bringing about the stoppage of the Project, delaying practical completion, the termination of the labour hire employees, standing down of CPB’s own employees and the wastage of transport costs and manufactured precast product for the Project.[86] None of the witnesses were cross-examined about these matters.
[85] Affidavit of Percival dated 30 July 2020 at [6], Whitaker Statement at [25], affidavit of Whitaker dated 30 July 2020 at [6] and [7]
[86] Percival affidavit at [7], Whitaker affidavit at [8] and [9]
On 14 March 2019, Mr Rielly telephoned Mr Ryan to nominate a Union preferred sub‑contractor for the Project. It is not denied the conversation took place on 14 March 2019, or that Mr Rielly called Mr Ryan about which contractors CPB should engage at the Yard.[87]
[87] Rielly Amended Defence at [21]
Mr Ryan’s statement records that he told Mr Rielly he had heard about the threat to turn the trucks around at the hospital site, corroborating the threat made on 5 March 2019, which Mr Rielly confirmed. Mr Ryan records he asked Mr Rielly what could be done to avoid drama at the site, and that Mr Rielly told him he should ensure that the employees at the Yard leave the AWU and join the Union or he could arrange for a labour hire company covered by a Union EBA to replace the current employer. This is recorded in a file note said to have been made by Mr Ryan on about 16 March 2019, in which he made the point of recording what Mr Rielly said in quotation marks.[88]
[88] Ryan Statement (Exhibit A1) at [26], and annexure JR-02, CB 144-145 and 148
Mr Ryan’s statement and file note both record Mr Rielly explaining that a motivation for his conduct was a demarcation dispute between the Union and the AWU, the Union being concerned to ensure that the AWU did not become involved on building sites.[89] In his affidavit Mr Rielly claims that such an explanation does not reflect the fact that most tunnelling workers in New South Wales are Union members not AWU members, suggesting he could not have given that explanation. However, he agreed he was aware that traditionally AWU members, not Union members, engaged in projects involving tunnelling, bridges and roads.[90] The newspaper articles put to Mr Rielly in cross-examination indicate that it had been a matter of public notoriety since 2014 that there was a demarcation dispute between the AWU and the Union over civil construction projects involving tunnelling and that the Union had challenged Telum/AWU and CPB/AWU agreements involving such projects in Victoria and New South Wales[91]. Mr Rielly agreed that he did know about those challenges.[92] Mr Rielly’s denial of knowledge of this history is said to be incredible.
[89] Ryan Statement at [26]
[90] T 19 November 2020, page 23:17-18
[91] Exhibit A7
[92] T 19 November 2020, page 23:42-45
Mr Rielly also said that he would not tell a story that put the Union in a bad light (said to be a telling observation about his “one-eyed view” of such matters). It appears that the version of the demarcation dispute recorded by Mr Ryan does not accord with the publicly reported allegations by the AWU that it was the Union which was encroaching on traditional AWU work rather than the other way around, but it is said to be not surprising, given Mr Rielly’s imperative to always paint the Union in a good light, that he would portray it as the victim in the dispute rather than the aggressor.
The Commissioner submits that the factual version of events given by Messrs Gray, Ryan, Percival and Whitaker should be accepted by the Court, and Mr Rielly’s and Mr Fitzpatrick’s denials be rejected.
Respondents’ submissions
Section 340 of the Fair Work Act provides, relevantly:
(1) A person must not take adverse action against another person:
(a) because the other person:
(i) has a workplace right; or
(ii) has, or has not, exercised a workplace right; or
(iii)proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; or
(b) to prevent the exercise of a workplace right by the other person.
The Commissioner pleads a contravention of s 340 of the Fair Work Act on the basis that Mr Rielly took adverse action because Telum had not exercised a workplace right under s 340(1)(a)(ii), namely it had not made an enterprise agreement with the Union.[93]
[93] CB 19 at [47]
The onus is on the Commissioner to demonstrate that Telum had exercised a workplace right as defined in s 341.[94] The meaning of “workplace right” within the Fair Work Act has been restrictively interpreted. As the majority of the Full Federal Court held in PIA Mortgage Services Pty Ltd v King:[95]:
[94] see Ramos v Good Samaritan Industries (No 2) [2011] FMCA 341 at [44]
[95] (2020) 274 FCR 225
at [10]
The objects of s 340 of the FW Act include providing an employee with protection against adverse action taken because he or she has exercised a workplace right. The provision evidently seeks to confer protection additional to any protection offered under the general law. Although the protection is broad in its scope, it has its limits, including by the definition in s 341 of “workplace right”.
The respondents submit that in order for s 340 to apply, it is necessary for a workplace right to make or not make an enterprise agreement with the Union to exist. They contend that no workplace right to make an enterprise agreement with a union exists under the Fair Work Act. An enterprise agreement is made when a majority of those employees who cast a valid vote approve the agreement.[96] A union may later seek that it be covered by such an enterprise agreement.[97] The respondents submit that the employer has no capacity to agree or disagree with the union's request.
[96] Fair Work Act, s 182(1)
[97] Fair Work Act, s 183
That proposition that there is no workplace right to make an enterprise agreement with a union is said to be contextually supported by the definition of s 341 that defines the making of an enterprise agreement to be a workplace right. That definition does not go further to include an agreement being made with a union (even if such a thing could happen).
The respondents note that the Commissioner submits that the obverse is correct by reference to ABCC v CFMEU (BKH Contractors)[98] and Hall. The Commissioner does not explain which parts of those decisions support that position. The respondents speculate that the reference to BKH Contractors is presumably a reference to the finding at [70] and [71] that the right to initiate a proceeding under a workplace law is a workplace right even if the person is ultimately unsuccessful. That conclusion is said to be unremarkable. It is not the same as the workplace right being asserted to exist here.
[98] [2018] FCA 42
The workplace right in Hall at [29] concerned a greenfields enterprise agreement the Union wished to enter into with Built Pty Ltd. The Fair Work Act specifically contemplates that a greenfields enterprise agreement can be made with a union,[99] unlike the type of agreements being considered by the Court in this matter. Again, the right to make a greenfields agreement is not the workplace right being asserted here.
[99] see s 172(2)(b)
The respondents submit that the pleading on its face cannot be the basis for the proving of the contravention alleged.
In any event, Mr Rielly gave sworn evidence that at no stage did he engage in conduct because Telum did not make or had not made an enterprise agreement which covered the Union or employ Union members as workers.[100] That evidence was never challenged by the Commissioner. The onus in relation to that matter must necessarily be discharged.
[100] RCB 173 at [79]
The contraventions of s 346
Section 346 states that:
A person must not take adverse action against another person because the other person:…
(b) engages, or has at any time engaged or proposed to engage, in industrial activity within the meaning of paragraph 347(a) or (b)…
Industrial activity is in turn defined in s 347 to mean relevantly:
A person engages in industrial activity if the person does, or does not:
…
(b) …
(iv)comply with a lawful request made by, or requirement of, an industrial association; or
(v)represent or advance the views of, claims or interests of an industrial association; or
…
(e) complies with an unlawful request made by, or requirement of, an industrial
association; …
Section 347: the meaning of industrial activity
The Explanatory Memorandum states at [1402] that:
The industrial activity provisions protect:
· being or not being a member or officer of an industrial association;
· participation or non-participation in other lawful industrial activity;
· non-participation in unlawful industrial activity.
In his FASOC at [42], in respect of his claim under s 346 against Mr Rielly, the Commissioner relies only on the definition of "industrial activity" at s.347(b)(v). At [22] and [27], in respect of his claims under s.348 of the Fair Work Act, the Commissioner relies on the definitions of "industrial activity" at ss 47(b)(iv) and 347(e) of the Fair Work Act.
The Full Federal Court has very recently dealt with the meaning of industrial activity in some detail in Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The Bay Street Appeal).[101] In that decision, the facts were that a union official had held a meeting with the workers which resulted in him telling the employer that he “was sending the boys home because the amenities aren't up to standard”.[102]
[101] [2020] FCAFC 192
[102] see [41]
As Flick J held at [42]:
The Commissioner contended that the conduct of the CFMEU amounted to a “lawful request ... or requirement” within the meaning of s 347(b)(iv) of the Fair Work Act and that by not complying with that request or requirement BPM engaged in “industrial activity”, through its non-compliance, by not “represent[ing] or advanc[ing] the views, claims or interests of [the CFMEU]” for the purposes of s 347(b)(v).
On appeal, the Commissioner did not seek to impugn the primary judge’s rejection of the claim based on s 347(b)(v),[103] which were set out at [76] and [77] of Bromberg J's reasons for decision at first instance:[104]
[103] The Bay Street Appeal at [112]
[104] Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (The Bay Street Case) [2018] FCA 83
There is an obvious difference between declining or refusing to advance or represent some other person’s claim and declining a claim made by that person. The latter entails merely a refusal to accept the claim whilst the former entails a refusal to positively support it. To refuse a claim is an act of a different character to refusing to join in with its proponent and advocate for the claim. So too is the act of acceding to a claim an act of a different character from that of representing or advancing a claim. Similarly, to reject the views or interests of another person is an act of a different character to refusing to represent or advance those views or interests. The natural and ordinary meaning of the phrase “represent or advance” as used in s 347(b)(v) does not extend to a mere refusal or rejection of a claim made by an industrial association.
The Commissioner did not contend that the legal meaning of the words “represent or advance” is, when read in context, different to the grammatical meaning of that phrase. I have already considered that context including the evident purpose of the provision to protect the freedom of persons to associate (or not) and participate in the lawful activities of an industrial association. In my view, the context clearly confirms that the words “represent or advance” were intended to have their natural and ordinary meaning and that s 347(b)(v) has no application to a circumstance where a person refuses a claim made by an industrial association for the improvement of terms and conditions of employment.
The respondents submit that, in any event, Allsop CJ held that s 347 (a) and (b) of the Fair Work Act all concern “the protection of participation (or not) in activities of, in, with, on behalf of or in relation to industrial associations”.[105] Similarly, Flick J held at [67] that “[a]ccording to its terms, the subject-matter of s 347(b) is what may loosely be described as the freedom of persons to participate in the activities of an industrial association” and that all conduct identified in s 347(b) was “directed to the freedom of persons to join in or participate in the affairs of an industrial association.”
[105] at [25]
Flick J went on to conclude that not every request made by a union led to s 347(b)(iv) applying. At [74] he held that:
In essence, s 347(b)(iv) should be confined in its interpretation and application to protecting a person’s freedom of association and participation or non- participation in the activities of industrial associations, and should not be extended to conduct in circumstances where a union makes a request of, or a requirement of, an employer.
That proposition is orthodox. It is that the section does not apply to all activity undertaken by an industrial association as would be expected upon a literal reading of the section. The section only applies to such activity if the activity involves freedom of association. Such is clear from a contextual analysis of the section. A claim by a union that employees be required to join a union may trigger s 347(b)(iv). A claim by a union for an employer to perform a particular activity not involving freedom of association will not trigger the section. The respondents submit that a demand, for example, that an employer negotiate an enterprise agreement would not bring s 347 into play.
The Commissioner deals with this “inconvenient fact” by stating in his written submissions that:
However, the reasons of Allsop CJ… were not so limiting.
That proposition is apparently justified by a footnote which refers to [2] and [59] of The Bay Street Appeal. That footnote is said to be difficult to reconcile with the judgment referred to. At [2] Allsop CJ held:
I have also read the reasons of Flick J. I agree with them.
The Commissioner's pleading as to the alleged contravention of s 346 is complex. It is set out at [42]-[46].[106] It alleges a contravention of s 346(b) by Mr Rielly on the basis that he advised, encouraged or incited CPB to terminate its contract with Telum because Telum had engaged in industrial activity being that it did not advance the claims or interests of the Union, by making an enterprise agreement which covered the Union, or employing Union members as workers. As noted above, the Commissioner relies on the definition of industrial activity at s 347(b)(v).
[106] CB 18, 19
The respondents contend that that pleading requires Telum to have not advanced a claim or interest of the Union. There is no allegation that any such claim or interest was ever put by the Union to Telum for it to be advanced. There is no allegation that Telum did, or did not, advance any such claim or interest.
As was held by Bromberg J in The Bay Street Case at first instance at [76]-[77]:
to reject the views or interests of another person is an act of a different character to refusing to represent or advance those views or interests. The natural and ordinary meaning of the phrase “represent or advance” as used in s 347(b)(v) does not extend to a mere refusal or rejection of a claim made by an industrial association…[and]… s 347(b)(v) has no application to a circumstance where a person refuses a claim made by an industrial association for the improvement of terms and conditions of employment.
Should Telum have rejected a claim put to it, this would not have satisfied the definition of industrial activity relied on at s 347(b)(v), but in this case, there is not even an allegation or evidence that such a claim was ever put to Telum, let alone rejected.
The respondents submit that, in any event, Mr Rielly gave sworn evidence that at no stage did he engage in conduct because Telum did not make or had not made an enterprise agreement which covered the Union or employ Union members as workers.[107] That evidence was never challenged by the Commissioner. Any onus on Mr Rielly in relation to that matter must necessarily be discharged.
[107] RCB 173 at [79]
The respondents submit the pleading on its face cannot be the basis for the proving of the contravention alleged.
The contravention of s 348
Section 348 states that:
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.
As noted above, for the alleged contraventions of s 348, the Commissioner relies in his FASOC only on the definition of industrial activity under ss 347(b)(iv) and (e).
Broken down to its elements, the Commissioner pleads a contravention of s 348 in the FASOC at [22] and [23] that:[108]
[108] CB 14, 15
(a)Mr Rielly threatened to organise or take action against CPB;[109]
[109] CB 14 at [22]
(b)the threat involved conduct that was unlawful, illegitimate or unconscionable;[110]
[110] CB 15 at [23]
(c)the threat was made with an intent to negate the choice of CPB to engage or not engage in industrial activity;[111]
[111] CB 14 at [22]
(d)the industrial activity was the unlawful request by the Union, being that CPB ensure that its full time employees working in the Yard:[112]
[112] CB 14 at [22]
(i)become members of the Union; and;
(ii)be covered by a Union enterprise bargaining agreement; and
(iii)that CPB terminate its contract with Telum; and
(iv)instead engage a labour hire business approved by the Union whose workers were covered by an enterprise agreement to which the Union was a party.
For those reasons, the Applicant submits that Hall was wrongly decided and that it is not required (a) to plead an “intent to negate choice” or (b) to establish that the conduct threatened by Rielly and Fitzpatrick was objectively unlawful, illegitimate or unconscionable, only that the terms of the threats and the action threatened are evidence that they intended to negate the choice of CPB in relation to its workers in the Yard. That result is entirely consistent with the conduct of the officials not being within the accepted good faith procedures and rules for bargaining under the FW Act.
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