Australian Building & Construction Commissioner v Abbott (No 4)

[2011] FCA 950

FEDERAL COURT OF AUSTRALIA

Australian Building & Construction Commissioner v Abbott (No 4)
[2011] FCA 950

Citation:

Australian Building & Construction Commissioner v Abbott (No 4) [2011] FCA 950

Parties:

AUSTRALIAN BUILDING AND CONSTRUCTION COMMISSIONER v BENJAMIN ABBOTT AND THE PARTIES IN ATTACHED SCHEDULE 1

File number:

WAD 230 of 2008

Judge:

GILMOUR J

Date of judgment:

22 August 2011

Catchwords:

INDUSTRIAL LAW – unlawful industrial action – whether there were contraventions by union officials – liability – whether breach of s 38 Building and Construction Industry Improvement Act 2005 – whether breach of Collective Agreements.

PRACTICE AND PROCEDURE – statement of claim – sufficiency of pleadings.

Legislation:

Building and Construction Industry Improvement Act 2005 (Cth) ss 9, 36, 37, 38, 48, 49, 69, 73
Workplace Relations Act 1996 (Cth) ss 328, 347, 351, 440, 494, 496, 717, 718, 719, 727, 728, 735, 760, 826(2)
Fair Work Act 2009 (Cth)
Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) s 3, Sch 2 item 11(1), Sch 18, Part 3, Item 13(1) and (2)
Evidence Act 1995 (Cth) ss 102, 106, 140(2), 190(3)
Trade Practices Act 1974 (Cth) s 75B
Broadcasting Services Act 1992 (Cth) s 160

Cases cited:

Amcor Ltd v Construction, Forestry, Mining and Energy Union (2005) 222 CLR 241
Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v John Holland Pty Ltd (2008) 180 IR 350
Bell v Minister for Health [2006] FCA 134
Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1
Browne v Dunn (1893) 6R 67 (HL)
CBI Contractors Pty Ltd v Abbott (No 2) [2009] FCA 1129
CEPU v QR Ltd (2010) 268 ALR 514
Compaq Computer Australia Pty Ltd v Merry, Howard & Ors (1998) 157 ALR 1
Giorgianni v R (1985) 156 CLR 473
Jones v Dunkel (1959) 101 CLR 298
Kucks v CSR Ltd (1996) 66 IR 182
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
QR Ltd v CEPU [2010] FCAFC 150
Quinlivan v Australian Competition and Consumer Commission (2004) 160 FCR 1
Reeves v MaxiTRANS Australia Pty Ltd (2009) 188 IR 297
Sent & Petres & Collier v Jet Corporation of Australia Pty Ltd (1984) 2 FCR 201
Van Efferen v CMA Corporation Ltd (2009) 183 IR 319
Yorke v Lucas (1985) 158 CLR 661

Date of hearing:

29-31 March, 1 April, 11 April 2011

Place:

Perth

Division:

GENERAL DIVISION

Category:

Catchwords

Number of paragraphs:

269

Counsel for the Applicant:

Mr K Pettit SC

Solicitor for the Applicant:

Clayton Utz

Counsel for the 218^th and 219^th Respondents:

Ms K A Vernon

Solicitor for the 218^th and 219^th Respondents:

Construction, Forestry, Mining & Energy Union

Counsel for the 106^th and 220^th Respondents:

Mr R L Hooker

Solicitor for the 106^th and 220^th Respondents:

Gibson & Gibson

Counsel for the 221^st Respondent:

Mr R E Lindsay

Solicitor for the 221^st Respondent:

Corser & Corser

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION	WAD 230 of 2008

BETWEEN:

AUSTRALIAN BUILDING AND CONSTRUCTION COMMISSIONER
Applicant

AND:

BENJAMIN ABBOTT
First Respondent

THE PARTIES IN ATTACHED SCHEDULE 1
Third Respondent to Two Hundred & Twenty-First Respondent

JUDGE:	GILMOUR J
DATE OF ORDER:	22 AUGUST 2011
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1.The parties within 14 days will seek to bring in a minute of declarations and orders to reflect the reasons for judgment, failing which the parties have liberty to apply.

2.The parties have liberty to apply in relation to the question of costs.   

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

TABLE OF CONTENTS AND PERSONNEL

The Application........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .....	[1]
People in the case........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ..	[4]
Background........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ...	[6]
The Legislation........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ......	[13]
The BCII Act........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .....	[13]
The Workplace Relations Act........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ...	[16]
Standard of proof........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ...	[27]
The redundancy issue........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ...	[32]
Knowledge of redundancy issue pre-1 October 2008........ ........ ........ ........ ........ ........ ........ ..	[35]
CBI employees meeting - 1 October 2008........ ........ ........ ........ ........ ........ ........ ........ .......	[46]
Meeting with CBI officers – 1 October 2008........ ........ ........ ........ ........ ........ ........ ........ .......	[47]
1 - 13 October 2008........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ...	[59]
Upton and CFMEU........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ..	[60]
Windus and the AMWU........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ....	[62]
CBI employees meeting – 13 October 2008........ ........ ........ ........ ........ ........ ........ ........ ........	[68]
Upton........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .	[69]
Brown........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........	[76]
Johnson........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .....	[77]
Meeting with CBI officers 13 October 2008........ ........ ........ ........ ........ ........ ........ ........ ........	[79]
The pleading........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ......	[99]
Windus’ knowledge - 13 October 2008........ ........ ........ ........ ........ ........ ........ ........ ........ ........	[102]
Application to admit rebuttal evidence........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .	[111]
Meeting of CBI employees - 14 October 2008........ ........ ........ ........ ........ ........ ........ ........	[116]
The pleading........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ......	[117]
AIRC hearing and orders........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .	[121]
Evening of 14 October 2008........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .....	[123]
Return to work on 15 October 2008........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .	[135]
The pleading........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ......	[140]
Letter of 16 October 2008........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........	[141]
Morning of 17 October 2008........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ....	[144]
The pleading........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ......	[151]
20 October 2008........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........	[152]
22 October 2008........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........	[153]
24 October 2008........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........	[158]
Role of Upton, Brown, Johnson and Windus........ ........ ........ ........ ........ ........ ........ ........ .......	[163]
Upton........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .	[163]
Brown........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........	[164]
Johnson........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .....	[174]
Windus........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .......	[175]
Accessorial liability........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .......	[179]
Conduct of the employees........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .	[180]
Section 48 of the BCII Act........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .......	[181]
Section 728 WR Act........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ..	[195]
Section 69 of the BCII Act........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .......	[196]
Section 826(2) of the WR Act........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ...	[217]
Section 826(2)(a)........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .......	[218]
Actual or apparent authority........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ....	[219]
Conduct “on behalf of” an organisation........ ........ ........ ........ ........ ........ ........ ........ ........ .	[222]
Section 826(2)(b) of the WR Act........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .......	[223]
Alleged breaches and pleading........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .....	[227]
Unlawful industrial action: s 38 BCII Act........ ........ ........ ........ ........ ........ ........ ........ ........ ....	[228]
Windus and the AMWU........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ....	[230]
Johnson and the AMWU........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ..	[232]
Holdsworth and the AMWU........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .....	[234]
Upton and CFMEU........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ..	[236]
Brown and CFMEU........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ..	[238]
Industrial action before nominal expiry of agreement: s 494 WR Act........ ........ ........ .......	[239]
Breach of issue resolution procedure and s 719 of WR Act........ ........ ........ ........ ........ .......	[244]
Breach of Order of AIRC – s 496(10) WR Act........ ........ ........ ........ ........ ........ ........ ........ ...	[257]
Upton and CFMEU........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ..	[260]
Windus and AMWU........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ..	[262]
Conclusions........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ....	[266]

People in the case

Brown – Robert:  25^th Respondent, building employee and industry participant, CBI employees representative

Clarke – Tony:  Site Industrial Relations Manager of FWW

Duffy – Andrew:  President AMWU WA Branch

Guyer – John:  CBI Construction Manager

Holdsworth – Andrew Cecil:  AMWU Organiser

Johnson – Mark Anthony:  106^th Respondent and AMWU delegate

Luskan – Kelly Joyce:  CBI Administration Manager

Macaree – Stuart Kenneth:  CBI Employee and Industrial Relations Manager

Marcano – Jose:  CBI Project Manager

McCartney – Steven James:  WA State Secretary of AMWU

Pooley – Alice:  Journalist

Starling – Andrew Colin:  CBI Senior Superintendent

Stuurstraat – Peter:  CBI Construction Manager

Upton – Bradley John:  219^th Respondent and CFMEU delegate

Windus – John Anthony:  221^st Respondent and AMWU organiser

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION	WAD 230 of 2008

BETWEEN:

AUSTRALIAN BUILDING AND CONSTRUCTION COMMISSIONER
Applicant

AND:

BENJAMIN ABBOTT
First Respondent

THE PARTIES IN ATTACHED SCHEDULE 1
Third Respondent to Two Hundred & Twenty-First Respondent

JUDGE:	GILMOUR J
DATE:	22 AUGUST 2011
PLACE:	PERTH

REASONS FOR JUDGMENT

The Application

1. The application is for declarations of contravention and for pecuniary penalties to be ordered against the respondents, variously, pursuant to four statutory provisions:

   (a)s 49 of the Building and Construction Industry Improvement Act 2005 (Cth) (BCII Act) in respect of “unlawful industrial action” (in s 37). The Commissioner also relies on accessorial liability sections under that Act.

   (b)s 494 of the then operative Workplace Relations Act 1996 (Cth) (WR Act), which relates to industrial action taken before a Union Collective Agreement has expired. The accessorial liability provision in this Act is also invoked.

   (c)s 496(10) of the WR Act, which deals with the failure to comply with an order of an Australian Industrial Relations Commissioner (AIRC).

   (d)s 719(1) of the WR Act alleging failure to comply with the terms of a Union Collective Agreement.

2. The office of the Australian Building and Construction Commissioner (Commissioner) is established under s 9 of the BCII Act. The Commissioner has the authority to institute the proceedings under s 49(6) of the BCII Act and, in his parallel capacity as an inspector, also under s 73 of the BCII Act.

3. The proceeding was originally instituted by CBI Contractors Pty Ltd (CBI) in October 2008 but the Commissioner was substituted as applicant by order of the Court made on 24 September 2009: CBI Contractors Pty Ltd v Abbott (No 2) [2009] FCA 1129.

   People in the case

4. The Commissioner seeks relief against the individual respondents who were CBI employees and who engaged in unlawful industrial action.  They are referred to in the Statement of Claim (SOC) as “Employee Respondents”.  I too will refer to them in that way in these reasons.  He also seeks relief against the Construction, Forestry, Mining and Energy Union (CFMEU) and the Australian Manufacturing Workers Union (AMWU) and their delegates and representatives.  Apart from the Employee Respondents, other than Brown and Johnson, the following is a list of persons who in one way or another had a role to play in the events which have given rise to this proceeding.  I will refer to them by their surname in these reasons.

   (1)Brown – Robert:  25^th respondent, building employee and industry participant, CBI employees representative

   (2) Clarke – Tony:  Site Industrial Relations Manager of FWW

   (3) Duffy – Andrew:  President AMWU WA Branch

   (4) Guyer – John:  CBI Construction Manager

   (5) Holdsworth – Andrew Cecil:               AMWU Organiser

   (6)     Johnson – Mark Anthony:              106^th respondent and AMWU delegate

   (7) Luskan – Kelly Joyce:   CBI Administration Manager

   (8) Macaree – Stuart Kenneth:                 CBI Employee and Industrial Relations Manager

   (9) Marcano – Jose:  CBI Project Manager

   (10)    McCartney – Steven James:          WA State Secretary of AMWU

   (11)    Pooley – Alice:  Journalist

   (12)    Starling – Andrew Colin:                CBI Senior Superintendent

   (13)    Stuurstraat – Peter:  CBI Construction Manager

   (14)    Upton – Bradley John:                   219^th respondent and CFMEU delegate

   (15)    Windus – John Anthony:                221^st respondent and AMWU organiser

5. The Commissioner does not proceed against the following nine (9) Employee Respondents for breach of an order of the AIRC, but does proceed on all other causes of action.

   (1)       Rolando Bazaez, respondent 12;

   (2)       Johannes Duplessis, respondent 59;

   (3)       Duane Guyatt, respondent 88;

   (4)       Robert Holt, respondent 94;

   (5)       Darrin Lane, respondent 115;

   (6)       Gheorghe Mateiu, respondent 127;

   (7)       Pasko Mitreski, respondent 141; and

   (8)       Maree Wainmann, respondent 203.

   Background

6. The case concerns building and construction work associated with the Woodside Energy Ltd gas production facilities on the Burrup Peninsula (the Site) in Western Australia.  CBI was under contract with Woodside to provide mechanical construction services at the Site.  Work by CBI was under the management of Foster Wheeler Working Persons Joint Venture (FWW).

7. The work on the gas production facilities had gone through several phases.  The most recent was called “Phase V Expansion Project” (Phase V).  There were two work packages called a "vapour return line" (VRL) and a Stabiliser 6. 

8. It was the work on those two packages that was interrupted as a result of the unlawful industrial action.  The catalyst for this action was the so called redundancy dispute which turned on whether or not the VRL and Stabiliser 6 were part of or associated with Phase V.   If they were not, as the employees of CBI contended, but CBI denied, then they were entitled to redundancy payments.

9. For the work described above, CBI employees comprised those eligible for membership of the CFMEU and those eligible for membership of the AMWU.  

10. The work by those employees was covered by one or other of two agreements, known under the WR Act as "Union Collective Agreements".  One related to the CFMEU, its members and persons eligible for membership; and the other to the AMWU, its members and persons eligible for membership. 

11. Clause 4 of each agreement dealt with the scope of the agreement.  It refers to work under Phase V and any work associated with that project.  The Union Collective Agreements cover the work that was disrupted by the unlawful industrial action.

12. The AMWU and the CFMEU each admits it is an industrial organisation. 

    The Legislation

    The BCII Act

1. The relevant sections of the BCII Act are: 

   (a)Section 9 establishes the Commissioner;

   (b)Section 38 provides that a person must not engage in unlawful industrial action;

   (c)Section 49(1) and (6) provides that the Commissioner may apply to the Federal Court for an order imposing a pecuniary penalty;

   (d)Section 49(1) so provides in the case of a defendant who has contravened a ‘civil penalty provision’, defined in s 4 in a manner that includes s 38;

   (e)Section 48 provides for accessorial liability. At its broadest, a person is deemed to have contravened a civil penalty provision if he is ‘involved’ in the contravention by aiding it, or being indirectly knowingly concerned in or party to it;

   (f). . .

   (i)s 69(1)(b) provides that the conduct of an officer or agent of a union is to be taken to be the conduct of the union;

   (ii)s 69(1)(d) provides that the conduct of a person who is a member of the union, and who performs the function of dealing with an employer on behalf of the member of the association acting in that capacity is taken to be the conduct of the union.

2. There are several relevant definition sections: 

   (a)Section 38 provides that a person must not engage in unlawful industrial action;

   (b)Section 37 defines ‘unlawful industrial action’ to include three elements, each having its own definition in s 36;

   (c)“Industrially-motivated” action is defined to mean motivated by, among others, the purposes of disrupting work and the purpose of advancing claims against an employer;

   (d)“Constitutionally-connected” action means ‘building industrial action’ that relates to work covered by a ‘Commonwealth industrial instrument’, and/or adversely affects a ‘constitutional corporation’; and/or is taken by a union; and  

   (e)“Excluded action” means “protected industrial action”.

3. Some of those s 36 definitions require recourse to further definitions:

   (a)‘building industrial action’ is defined in s 35 to mean, relevant to this case, a failure or refusal by persons to attend for ‘building work’;

   (b)“Building work” is defined in s 5 to mean any construction etc of structures etc that are to form part of land, whether permanent or not. “Land” includes seabed;

   (c)‘Commonwealth industrial instrument’ is defined in s 4 to include a ‘workplace agreement’ which in turn is defined in s 4 to mean a workplace agreement within the meaning of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009. That Act, in Schedule 2 item 4, provides that its expressions take the same meaning as in the WR Act, which Act (ss 4 and 328) defined ‘workplace agreement’ to include a Union Collective Agreement, and specifically a ‘Union Collective Agreement’. Each of the two agreements tendered through Ms Luskan is a Union Collective Agreement, within the meaning of s 328 of the WR Act. Each agreement is “made” when its terms were agreed: s 333(c) WR Act. The AMWU admit our pleading on this. The CFMEU admit the agreement was made, which suffices for the purposed of the legislation; and

   (d)‘Constitutional corporation’ is defined in s 4 to mean a corporation to which s 51(xx) of the Constitution applies, and that means any trading corporation. For this purpose, the constitutional corporation does not have to be the employing corporation. The Commissioner relies on adverse effects on Woodside as well as on CBI. However, those facts are not required to be proved, because all respondents have admitted the relevant constitutional requirement (namely that the industrial action was ‘constitutionally-related’).

   The Workplace Relations Act

4. The application relates to a time when the WR Act was in force.  It has been repealed and replaced by the Fair Work Act 2009 (FW Act). The WR Act continues to apply to events occurring during its period of operation. Section 3 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 provides that an item in a schedule to the WR Act takes effect according to its terms. Schedule 2 item 11(1) provides that the WR Act continues to apply to conduct occurring before its repeal.

5. Also, the Commissioner’s position as an inspector is preserved for that purpose: Sch 18, Part 3, Item 13(1) and (2) of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 provide that any application that could have been made under the WR Act by a Workplace Relations Inspector can still be made by a Fair Work Inspector, and the applicant is a Fair Work Inspector: s 73(2) BCII Act.

6. The relevant sections of the WR Act are as follows:  

   a)First, s 727 sets out what are called ‘civil remedy provisions’. They include any section of the WR Act which is specified in that section to be a civil remedy provision. Section 494 and 496 are both so expressed: s 494(4) and 496(11). Section 727 also includes as ‘civil remedy provisions’ all of the compliance provisions in s 719, whether or not the various items in s 719 are also expressed elsewhere to be civil remedy provisions within specific sections;

   b)Section 728 sets out the accessorial liability provisions, which are similar to those in the BCII Act, and s 729 provides that the civil rules of evidence shall apply; and

   c)Section 496 is expressed in s 496 to be a civil remedy provision, and the conduct proscribed by s 496 is also in s 719(1), and is thereby deemed to be a civil remedy provision under s 727. For other matters, such as breach of a Union Collective Agreement, there is no such overlap. Nothing turns on this.

7. For the allegations of taking industrial action before the nominal expiry of a Union Collective Agreement:  

   (a)Section 494(1) provides that, for the period of a Union Collective Agreement, certain persons must not engage in industrial action, whether or not the disputed matter relates to the Union Collective Agreement;

   (b)Under s 440, industrial action that occurs before the nominal expiry of a Union Collective Agreement can never be ‘protected industrial action’;

   (c)The certain persons bound by s 494(1) are set out in s 494(2); they are the employees, the union bound by the Union Collective Agreement and the union officers;

   (d)By s 494(4), subsection (1) is a civil penalty provision;

   (e)The Court may impose a penalty: s 494(5);

   (f)An inspector may bring an application: s 494(7);

8. For the allegations of industrial action in breach of an order of the AIRC:

   (a)Section 496(1) and (4) provide the basis for applications to, and orders by, the AIRC in respect of industrial action that is not ‘protected industrial action’;

   (b)Section 496(10) provides that a person to whom an AIRC Order is expressed to apply must comply with the order; and

   (c)Section 496(11) provides that subsection (10) is a civil penalty provision.

9. The allegation of breach of the AIRC Order is made against all respondents except Windus because his name was omitted from the AIRC Order.  His conduct is still attributed to the AMWU.

10. For the allegation of breach of the Union Collective Agreement: 

    (a)Section 717(1) defines the expression ‘applicable provision’ to include a Union Collective Agreement, and ‘eligible court’ to include the Federal Court (read with s 4);

    (b)Section 718(1) (item 4) allows an inspector to apply in respect of a breach of a Union Collective Agreement; and

    (c)Section 719(1) allows the Court to impose a penalty, and s 719(4) sets the amount.

11. This cause of action is contested as a matter of law by all of the respondents.

12. In all causes of action under the WR Act, the sole penalty provision is under s 719(4).

13. Both s 494 and s 719 of the WR Act require the relevant Union Collective Agreement to be in operation. Section 494(1) of the WR Act prohibits industrial action only from the day when a collective agreement comes into operation. Similarly, s 719 of the WR Act empowers a court to impose a penalty on a person who is bound by an applicable provision, and that condition, according to s 351 of the WR Act, is dependent upon the workplace agreement being in operation. Section 347(a) of the WR Act, at the relevant time, provided that a collective agreement came into operation when lodged.

14. While not relevant at the liability stage, s 735 of the WR Act prevents application of two penalty provisions for what is essentially the same conduct. Hence, there cannot be a penalty in respect of both unlawful industrial action under the BCII Act and industrial action before nominal expiry of a Union Collective Agreement. However, that is no barrier to an application for declaration of breach of both.

    Standard of proof

15. Given the nature of s 38 of the BCII Act and s 494 of the WR Act as civil penalty provisions, the practical requirements of the burden upon an applicant of proving alleged contraventions operate by reference to the civil standard of proof but, critically, paying due regard, compatibly with s 140(2) of the Evidence Act 1995 (Cth) to the nature of the cause of action, the nature of the subject matter of the proceeding, and the gravity of the matters alleged.

16. That subsection of the Evidence Act is a restatement of what Dixon J said in Briginshaw v Briginshaw (1938) 60 CLR 336 at 362:

    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.

    A Full Court of this Court has recognised the correctness of this approach to fact finding in industrial regulatory cases seeking the imposition of a civil penalty: Construction, Forestry Mining and Energy Union v John Holland Pty Ltd [2010] FCAFC 90 at [110].

17. The Commissioner bears the burden of proof as to the conduct of the respondents. The penalties for breaches of s 38 of the BCII Act are substantial and the consequences for the respondents may be grave.

18. As to inferences in a civil cause, all that is required are circumstances raising a more probable inference in favour of what is alleged.  Where direct proof is not available it is enough if the circumstances appearing in evidence give rise to a reasonable and definite inference but they must do more than give rise to conflicting inferences of equal degree of probability so that the choice between them is no mere matter of conjecture: Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1 at 5.

19. The Commissioner’s case against the Unions and their delegates relies almost entirely on the drawing of inferences most of which I have not been prepared to draw.  The Commissioner’s case against these respondents has substantially failed.

    The redundancy issue

20. There emerged from some CBI employees on the Project in about September 2008 a suggestion that Phase V had finished, and that severance payments, usually but loosely referred to as 'redundancy' payments, under the Union Collective Agreements were payable.  These employees indicated that CBI should declare the redundancies, terminate the employment of the employees working under the Union Collective Agreements, make the severance payments and almost immediately re-employ those employees on Stabiliser 6 and the VRL, which they considered to be separate work from Phase V.  This was said to apply to the entire CBI workforce eligible to be a member of the CFMEU or the AMWU.  It is not disputed that some of the employees who ventilated the redundancy issue and wanted to pursue it were members of the CFMEU and the AMWU.

21. Whether the redundancy issue had any merit or not is immaterial for the purposes of the allegations against the respondents.   

22. The redundancy issue was brought to the attention of the AMWU organisers by at least September 2008 and probably before that.  Also in September, some individual employees raised the redundancy issue with Macaree.  Even earlier in August 2008, employees had raised the redundancy issue with Holdsworth.

    Knowledge of redundancy issue pre-1 October 2008

23. On 30 September 2008, Upton issued a Right of Entry Notice for a meeting with CBI employees to be exercised on 1 October 2008. Right of Entry Notices are statutory instruments under s 760 of the WR Act, validly issuable by a permit holder. Upton held a permit.

24. The Commissioner contends that Upton issued that notice in order to discuss the redundancy issue with employees and that he knew before 30 September 2008 that the intended meeting was for that purpose.  Upton denies that he had been told about the redundancy issue prior to 1 October 2008.

25. There is no evidence from Luskan, Macaree, Stuurstraat or Marcano that Upton had ever discussed the redundancy issue with any of them before 1 October 2008.  In fact Luskan when asked specifically if the topic had been raised with her before 1 October 2008 said:

    With me personally, it was the first time with the union. I’d had employees approach me prior to that, but not the actual union. 

26. Macaree said requests were made to him for voluntary redundancies that were granted; that there were some forced redundancies but there was no claim for redundancy payments made leading up to the end of Phase V.  It came to his attention that some employees were aggrieved by the process of the redundancies made, not that some employees had raised the issue with him as alleged by the Commissioner.

27. Stuurstraat agreed that from the time he started on the Site full-time, which was on 29 September 2008, up to 13 October 2008, he had heard CBI employees asking why CBI had not paid them out but that “(i)t wasn’t a flood of people asking me, it was one or two”.  He was not in a position to resolve the issue with those who asked about it.

28. Windus said that the AMWU members working for CBI were being deliberately deceived by CBI and Woodside as to the status of the various projects.  Some members, he said, regarded the AMWU members as being in the same position as employees of PNH Scaffolding who “were made redundant, paid out and then re-hired”.  This state of affairs had been going on for about three months prior to the first action by CBI employees.  This was a clear reference to the redundancy issue. 

29. The evidence of Holdsworth establishes that he held meetings with AMWU members between August and September where his members raised the redundancy issue with him.  He spoke to Macaree about it: he said his members were seeking to be paid out and that there were many unhappy employees.  Counsel for Upton submits that none of this evidence, without more, gives rise to an inference that Upton knew about the redundancy issue prior to 1 October 2008. 

30. Upton’s evidence as to the meeting of employees on 1 October 2008 was confused.  He agreed, in cross-examination, that the meeting was held before work commenced.  It was a meeting, according to him, attended by “hundreds of people”.  Later he said he had been confused and that “at the end of the day the meeting was at smoko time”.  I take the reference to the “end of the day” to be metaphorical.  Later again, he said that he had walked through 15 crib rooms to get whoever wanted to come out and let them know there was to be a meeting on site. 

31. There is no evidence, according to his counsel, that Upton issued the Right of Entry Notice for the purpose of discussing the redundancy issue with CFMEU members.  Upton’s evidence was that the purpose of issuing the Right of Entry Notice was not to discuss the redundancy issue because he did not know about it prior to the 1 October meeting.

32. He contends that there is nothing incredible about issuing such a notice for a site visit without asking the members the purpose of the meeting: Upton said he was the sole CFMEU Organiser for the North West at the time and travelled 10,000 kms per month so there were lots of issues.  He said that he tried to get to the Site once a month and meet with members and this required a Right of Entry Notice.

33. It is beyond doubt that the AMWU and its organisers on the Site had known for months prior to 1 October about the redundancy issue.  I do not accept Upton’s evidence that he was not aware of it.  I find that he had this knowledge.  It was a matter of the most serious concern to the CFMEU members who worked at the site.  He was required to visit the Site regularly in his role as a CFMEU organiser.  It was a central part of Upton’s job, I infer, to know about current employees concerns.

    CBI employees meeting - 1 October 2008

34. Pursuant to his Right of Entry Notice, Upton attended for the CFMEU at a meeting at about 9.15 am on 1 October 2008.  Windus attended for the AMWU.  Brown also attended.  The meeting was held in the common area.  The redundancy issue was raised by various employees.  According to the evidence of Upton and Windus the employees did not suggest industrial action in respect of the redundancy issue.  They were asked merely to raise the redundancy issue with CBI Management.

    Meeting with CBI officers – 1 October 2008

35. Immediately after the meeting with employees, Upton and Windus attended a meeting with CBI officers Guyer, Starling and Luskan.  A meeting between Union delegates and CBI officers was common after exercise of a Right of Entry Notice. 

36. I accept the evidence of Luskan, that this meeting was specifically requested by Upton and Windus.

37. The Commissioner pleads at SOC [21] as follows:

    1 OCTOBER 2008

    21. On 1 October 2008, Windus accompanied by Upton:

    (a)represented to CB1 that the Phase V Expansion Project had been completed (Representation);

    (b)demanded that CSI:

    (i)terminate the employment of the Employee Respondents covered by the AMWU Collective Agreement,

    (ii)pay out their consequential redundancy entitlements taxed at concessional rates and

    (iii)re-employ them for the S6 and VRL packages (Claim); and

    (c)threatened that those Employee Respondents would take industrial action if CBI did not meet the Claim (Threat).

    Particulars

    The Representation, the Claim and the Threat were made orally by Windus to Luskan and Guyer at the CBI premises in Karratha.

    22. At the same time, Upton by his conduct made the Representation, the Claim and the Threat in respect of Employee Respondents covered by the CFMEU Collective Agreement.

    Particulars

    The conduct comprised Upton's attendance in concert with Windus, his failure to dissociate himself or the CFMEU from the Representation, the Claim or the Threat made orally by Windus.

38. Accordingly, the pleading is structured by reference to a “Representation”, a “Claim” and a “Threat”.  I will, in these reasons, use these terms as shorthand descriptions but not confined to the events of 1 October 2008.

39. Luskan said that there was quite a bit of discussion about Stabiliser 6 and the VRL and there were “lots of other things discussed at the meeting and I had made some notes in my diary along those lines”.  Her diary note refers to two employees, Phase V being finished, removal of the Medical Centre, what Windus supposedly said, and relocation of the Medical Centre for Stabiliser 6 and VRL employees.  I find that her note stating “Phase V finished” to be a reference to the redundancy issue.

40. I find that the redundancy issue was put by Windus to the CBI officers at this meeting.  He did so in a general way without differentiating between AMWU and CFMEU members who had attended the earlier meeting.  Luskan said it was.  Upton said that both he and Windus had raised it at the meeting because their members had requested that they do so.  He added, emphatically, that any suggestion that there had been no talk of the redundancy issue at the meeting was incorrect.  He had earlier described it as a “massive issue” for the CBI employees on site.  I reject Windus' evidence that the redundancy issue was not raised with CBI at this meeting. 

1. I find, on the evidence of Luskan, which I accept, that Windus asked why CBI would not admit that the Stabiliser 6 and VRL were not part of Phase V and gave reasons in support of the view that Phase V had finished.  Luskan said that Windus did a lot of talking about his Right of Entry pass, but she did not recall anything that Upton said about the Right of Entry, or Stabiliser 6 and VRL, or Phase V being finished.

2. Guyer rejected the premise of the redundancy proposition.  He said that Stabiliser 6 and VRL were part of the same job.  In response Windus said words to the effect: "If it takes an illegal strike, I will march the boys up the road to make you [CBI] admit Phase V has finished; you [CBI] need to pay them out."  Upton, according to the Commissioner, did not disassociate himself from the Threat.  Luskan’s handwritten note supports a finding that this threat was made.  The note states “Windus – Threat illegal strike if that’s what it takes!!”  Counsel for Upton submits that this cannot be taken as anything other than a statement of Windus’ intention.  I reject Windus’ denial that he made the Threat.  I did not find him to be a witness of truth for reasons which I will later explain.  No Jones v Dunkel point arises because the Commissioner did not call Starling or Guyer.  It is not necessary for a party to call every witness who could give repetitive and cumulative evidence.

3. Not long after the Threat was made Upton said: “Fuck it, I'm leaving,” and left, as did Windus immediately.  I find that Windus made the Threat in the presence of Upton, that Upton's exclamation and departure came sometime after Windus’ Threat, and not because of it, and after further non-productive discussion with CBI.  I do not accept Upton’s evidence that he did not hear the Threat.  He was in close proximity to Windus at the meeting and they effectively left together.  Upton said that he was frustrated, not by CBI's rejection of the issue, but because he was frustrated at CBI’s attitude and the discussion was going nowhere and was just going round in circles.  It is difficult to see the distinction.  I infer that Upton’s sharp remark was engendered by anger that the CBI representatives were refusing to buckle to the demands of the employees, including the Employee Respondents, in relation to the redundancy issue.

4. I accept the submission that Windus did not act as a mere messenger of the employees who were AMWU members.  The employees did not express any intention to strike, so the Threat expressed by Windus was not a threat relayed from them, but one he advanced in relation to their claim.

5. However, I do not accept that because Upton did not disassociate himself from Windus’ threat that this resulted in the Threat being a joint one on behalf of AMWU and CFMEU members.  Windus’ threat referred directly to him marching the boys down the road.  He was in no position to march CFMEU members down the road.  His threat did not extend to them and there was no need for Upton to disassociate himself from the Threat made by Windus.

6. I find that Windus and by silent association Upton, communicated as they had been asked to do, the Representation, and the Claim but that only Windus made the Threat.  As pleaded the Threat was made in respect to those Employee Respondents covered by the AMWU Collective Agreement.  When Windus spoke of “marching the boys up the road” he could have been referring only to Employee Respondents who were AMWU members.

   1 - 13 October 2008

7. Windus and Upton gave evidence that between 1 and 10 October 2008 they made further inquiries about the redundancy issue. 

   Upton and CFMEU

8. The Commissioner submits that the “better inference” is that, between 1 and 10 October 2008, Upton informed his superior Kevin Reynolds in Perth that a threat of industrial action had been made on 1 October 2008 and that accordingly, the CFMEU agreed to Upton's participation in the employees meeting on 13 October 2008 in the knowledge by Reynolds that industrial action was in contemplation.  I would not draw such an inference.  Upton did not make the Threat.  The employees had not made the Threat.  That Windus made the Threat in Upton’s presence does not justify a finding that Reynolds or the CFMEU were contemplating, in the sense of contemplating being involved or knowingly concerned in, strike action at the time Upton was due to attend the Site on 13 October.  Nor is there a basis for Reynolds to know that the CBI employees were contemplating industrial action.  At most he knew that Windus had made the Threat.  I find that neither Reynolds nor the CFMEU had the alleged knowledge.

9. On Friday 10 October 2008, Upton issued a second Right of Entry Notice, to enable him to attend again to speak to CBI employees on Monday 13 October 2008.  Enquiries were directed to Upton, and his mobile telephone number was included on the notice.  

   Windus and the AMWU

10. McCartney said he understood from Duffy as at 13 October 2008 that the CBI employees had gone on strike.  He told Windus so.  His understanding was mistaken.  There was no strike on 13 October 2008. 

11. However, what is not in dispute is the evidence of McCartney and Windus who said that arrangements were made on 13 October 2008 that Windus be sent immediately to Karratha to deal with the strike.  Windus did arrive in Port Hedland and drive to Karratha in the early morning of 13 October 2008.  It is probable that he arrived in Karratha sometime around or shortly after midday.  Accordingly, it is evident that McCartney and Duffy on 13 October 2008 did know something concerning a strike at CBI, and they did know it early enough to arrange for Windus to travel to Port Hedland by 8.13 am, being the time in Windus’ telephone records for that day when he made a call from Port Hedland.

12. Conservatively estimated, I accept the Commissioner’s submissions that the decision to send Windus must have been made, at the latest, around 5.00 am on 13 October 2008, allowing for Windus to: (a) to be telephoned to attend at the Perth office, and getting dressed and packed; (b) travel to the Perth office (c) speak briefly to McCartney (who was on his way to another meeting); (d) speak to Duffy; (e) see the secretary about travel arrangements; (f) travel to the Airport and board a plane; and (g) fly to Port Hedland.  Conservatively, allowing for (a) 20 minutes; (b) 15 minutes; (c), (d) and (e) 15 minutes; (f) 30 minutes; and (g) two hours, comprising 3 hours 20 minutes, which puts the decision at about 5.00 am.  It may well have been earlier given the conservative nature of these time estimates.

13. It follows that the AMWU decision to send Windus to Karratha in respect of a strike at the Site was made before the CBI employees met on 13 October 2008 and of course before the CBI rejection of the redundancy issue.  Duffy and McCartney knew something about strike action before the employees meeting and at least Duffy would have told Windus that this was the position.

14. It may be even that Duffy knew enough about a strike on 12 October 2008 to arrange on that day for Windus to travel the following day to Port Hedland.  However, it does not matter whether it was arranged on 12 or 13 October.

15. What is clear is that Windus made the Threat on 1 October 2008.  I infer that he informed Duffy of that.  This inference is supported by a number of factors: first there were six mobile phone calls on 1 and 2 October 2008 between Windus and Duffy, the AMWU State President; second the significance of the issue; and third the significance of strike action.

    CBI employees meeting – 13 October 2008

16. The Commissioner contends that this meeting in the overflow car park with CBI employees was attended by Upton and Brown for the CFMEU and Johnson for the AMWU.  Windus was not present.  In the absence of Windus, Johnson acted as the representative for AMWU members.  The CFMEU denies that Brown represented it at this meeting or at all. 

    Upton

17. I have found that, prior to 13 October, Upton knew nothing of imminent strike action.  He arranged for the issue of a Right of Entry Notice on 10 October 2008.  He had been at the 1 October meeting when Windus made the Threat.  He was, on his written evidence, and although he first denied it, also ultimately in his oral evidence upon cross-examination, asked to attend the 13 October meeting by Brown and others on the Site, for a reason which he no longer recalled.  Brown well knew of the CBI employees claims in relation to the redundancy issue.  That he did not mention to Upton why he and others wanted him to come to a meeting on the Site on 13 October is not credible.  I do not accept Upton’s evidence that he did not know the reason for calling the meeting.  I find that he knew it was a meeting of CBI employees including CFMEU members concerning the redundancy issue but not that he knew that strike action was to be discussed.  There was no evidence of communications between Upton and Windus, or anyone else, prior to or on the morning of 13 October, absent which, no inference of knowledge on the part of Upton of contemplated strike action could arise.  However, I do not believe his oral evidence that after 1 October he had made enquiries and had thought that the redundancy issue had been resolved.  He did not expand upon the nature of his enquiries.  There is no evidence to support such a conclusion.  He did not include this assertion in his written statement.  All the evidence points in the opposite direction: CBI had at all times rejected the redundancy claim.

18. The Commissioner also contends that Brown and Johnson knew before the meeting that it was likely to result in a resolution to strike if CBI did not meet the claim and that this is evident from the events concerning the arrival of Windus in Karratha.  

19. The meeting was about the redundancy issue and, as it transpired, related strike action. Upton arrived at the meeting place before anyone else.  According to Upton the employees said that they wanted to be paid their redundancies and they wanted an answer by the end of the day or they were going out.  However, he was adamant that the employees certainly did not specify a time frame for such strike action.  I accept this evidence.  No one else gave evidence of what occurred at the meeting.  He said that several of the employees had a demand they wanted him to convey to CBI about the redundancy issue.  The employees in attendance included AMWU and CFMEU members as well as non-union employees. 

20. When Upton gave evidence during his cross-examination that at this meeting he “… told them to return to work and that we will pass on your message and we will try and work through it and get it fixed” it was not put to him that this was false or somehow mistaken.  I accept his evidence on this point.  In fact the men did go back to work. 

21. Further, on the issue of the threatened strike, counsel for the Commissioner put it to Upton that he did not dissociate himself from the employees by walking away as follows:

    “You didn’t say to them, “What you’re proposing is unlawful. I don’t want any part of it,” and walk away, did you?---I told them that the CFMEU is - that they’re not to strike and they’re to stay at work. That is a very firm position that all organisers are told to tell everyone that thinks of any industrial action.”

22. That evidence was not then challenged further by the Commissioner and accordingly I accept it.

23. It is pleaded against Upton that he addressed this meeting in respect of the Claim and Threat.  I find that whilst the Claim was raised at the meeting by some of the employees, Upton referred to the Threat only in the terms I have described, namely, in effect, that the employees should not carry it out.

    Brown

24. The only evidence about Brown’s involvement in the 13 October 2008 meeting is that he, amongst others, invited Upton to attend and that he himself was present.  I accept the submission on behalf of the CFMEU that this is no basis for imputing any liability to the CFMEU for the attendance of one of their members at an authorised site meeting.  That attendance does not make Brown either an agent or a representative of the CFMEU acting in such a capacity on that occasion.  Upton denied Brown had any involvement for the CFMEU that morning.  Moreover, for reasons I set out later in these reasons, I find that Brown was an employee representative for all CBI employees and not merely for CFMEU members as such.  I am not prepared to find that Brown knew that the meeting was likely to result in a resolution to strike if CBI did not meet the Claim. 

    Johnson

25. Further, I am not prepared to find that Johnson had the alleged knowledge.  The contention is not based on any direct evidence and must depend upon an inference.  The inference that he did is sought to be derived from events concerning the arrival of Windus in Karratha.  Even if it be concluded, favourably to the Commissioner, that Windus, and either or both of Duffy and McCartney, must have known before the employees’ meeting early on 13 October 2008 that strike action was imminent or likely, this does not give rise to an inference of such knowledge on the part of Johnson.  There is no evidence of any conversation, by telephone or otherwise, involving Johnson that would enable that inference to be drawn.  There is no evidence and there is no basis to infer, that Johnson said anything or made any other material communication at this meeting.   Neither is there any evidence of any association of employees, or other occurrence involving Johnson, that might somehow assist the Commissioner.  I am not prepared to draw the inference contended for by the Commissioner.  Nor does a Jones v Dunkel point arise in Johnson’s case as a result of Duffy not being called as a witness.  There was nothing for Johnson to explain or contradict in the evidence.  There was no evidence of such knowledge on Johnson’s part.  It is not to be expected in those circumstances that he ought to have called Duffy.

26. However, Johnson and Brown would each have heard the employees reiterate the Claim and make the Threat and that they asked for this to be communicated to the CBI officers.

    Meeting with CBI officers 13 October 2008

27. After that meeting with the CBI employees, a meeting was held attended by Upton, Brown, Johnson and CBI officers Marcano, Stuurstraat and Luskan. 

28. Brown showed the officers a paper clipping which contained a statement attributed to Woodside to the effect that Phase V was complete.

29. The evidence of Luskan, Stuurstraat and Marcano about the timing of the strike action goes to what they say Upton told them but not necessarily what had actually been said at the earlier worker’s meeting.

30. All three of those witnesses said that Upton threatened strike action if CBI did not agree to the demanded redundancy proposal by close of business that day.  To that extent, and in context, it accords with the evidence of Upton.  However, their evidence extends further.  Although there are differences in some respects as between these three CBI witnesses, each made a written record that Upton threatened strike action involving a strike for a week, return to work for a day to negotiate, and a strike for another week if negotiations were unsuccessful. 

31. Luskan, after returning to her office from the meeting telephoned Tony Clarke to inform him of the meeting and then sent an email to him dated 13 October 2008 at 8.47 am and copied to Stuurstraat and Marcano.  Relevantly it stated:

    Brad Upton advised that at a meeting held at 6.15 am this morning the guys had voted to go on strike unless CBI agreed to pay out all entitlements at a redundancy rate and they all be made redundant.  If we did not agree to their request by close of business today they would go on strike for 1 week, come back to work for 1 day then go out again for another week.  Brad Upton was very clear in telling us “We are on Notice” and unless we agreed the boys would be out the gate tomorrow.

32. She then spoke to Sean Foy of the Chamber of Commerce and Industry by phone and then she sent him an email at 10.36 am attaching a copy of the email she had sent to Clarke and later an email at 10.59 am attaching a statement she had received from Marcano – which relevantly was in the following terms:

    Today, 13 Oct 2008, I attended to a meeting at WEL KGP main gate as per request of union representatives Upton, Brown and Johnston. CBI was represented by Kelly Luskan, Peter Stuurstraat and myself.

    The Union expressed Stabiliser 6 and Vapour Return Line workers interest of being paid all entitlements associated with their work at Phase V as they consider this Project has been completed. Their comments were based on information published by WEL on one newspaper and their believe (sic) that S6 does not form part of the Phase V scope. The Union indicated they would take the following actions if a positive response to their expectations respect to payment of redundancies and others project completion entitlements is not provided by COB today:
    1. One week work stoppage starting on 14 Oct 08
    2. Workers to return to work for one day to continue negotiations.
    3. One week work stoppage if CBI does not satisfy Union requirements. 

33. Later she forwarded by email at 10.45 am to Clarke, Stuurstraats email to her which attached an email addressed to but which had not been sent by him to Clarke.  It contained relevantly the following:

    Hi Tony,

    This morning Monday October 13th at approximately 7.30am I was called by Kelly Luskan to acompany her and Jose Marcano to a meeting outise the KGP gate to meet with Robert Brown (CBI CFMEU Delegate) Brad Upton (CFMEU) and Mark Johnston (CBI AMWU Delegate). Brad Upton told us that the crew will go on strike as of tommorow (sic) if CBI did not agree to payout the crew's redundancy entitlements from the Phase 5 project by the end of the day. The strike will be for one week and that they would then return for one day and then they would go out for another week. Brad was informed that there was a process that needed to be followed for such action and that his current actioins (sic) did not fulfill these requirements. His responce (sic) was well this is it.

34. In cross-examination, Luskan agreed that at the 13 October 2008 meeting when Upton spoke of the CBI employees’ Claim, in effect, as she understood it, Upton was just relaying what those employees had discussed at their morning meeting.

35. Stuurstraat made a note of the meeting.  The note makes no actual mention of a strike although the words “just go back to work” allude to a strike.  

36. Stuurstraat, like Luskan, also used the expression “the boys” as being the persons who were demanding their money.  He recalled “they” wanted an answer by the end of the day or they would go on strike.

37. Stuurstraat later composed but did not send an email addressed to Clarke which stated that “the crew” would go on strike the following day if CBI did not agree to payout the crew’s redundancy entitlements by the end of the day.   

38. He did however send a copy of this email to Luskan.  She, in turn, as I mentioned, forwarded this to Clarke.  It is phrased in terms somewhat similar to that of Luskan’s email which Stuurstraat had received earlier that morning and he may well have couched his email in those terms after reading her email.  I do not find that unusual or a basis for rejecting that it was, at the time he wrote it, in keeping with his own recollection.

39. In cross-examination, Stuurstraat too agreed that at the 13 October 2008 meeting when Upton spoke of the employees’ Claim he understood him to be relaying what the employees had discussed at their morning meeting and that Upton did not say “The Union wants the boys’ money paid”.  He also agreed that Upton did not say that the CFMEU fully supports the men going on strike if CBI did not give them an answer.

40. Marcano gave oral evidence about what Upton said in the following terms:

    That day the union delegate they requested that the workers should be paid all their entitlements related to the completion of the Phase 5 as they believed that the stabiliser project and vapour return line were not associated to the Phase 5 project. They said that if CBI wouldn’t pay by the end of the day they will stop the workers for one week, come back to the negotiation for one day, and then stop the workers again if we don’t fulfil their request.

1. His evidence was to the effect that the Claim and the Threat were being put on behalf of the CFMEU rather than relaying what had, so it seemed, been put to Upton by the employees.

2. I find that Marcano was mistaken in this respect and I prefer the evidence as to the understanding of each of Luskan and Stuurstraat.

3. Although his handwritten notes of the meeting are in line with his oral evidence this merely reflects, I find, a misunderstanding on his part which was in the circumstances an easy one at which to arrive.  The Claim and Threat were conveyed by a Union representative but the Threat was not, as I have found, one being made by him or by the CFMEU.

4. Upton denied that he had referred to any specific time frame for strike action.  I do not accept this evidence.  This does not mean that I rejected the totality of his evidence.  I prefer the relatively contemporaneous version in the emails of Luskan, Stuurstraat and on this point also that of Marcano.  The Threat, so far as it had become a threat to strike for specific periods, was made by Upton and therefore also by the CFMEU.  It was not the message he was asked to convey by those he represented.  Nonetheless in his capacity as a CFMEU organiser he did so. 

5. Upton, in his cross-examination suggested that either Brown or Johnson may have said it, although he said that he did not hear them say it. 

6. Counsel for Upton submits that neither Luskan, Stuurstraat nor Marcano could remember exactly what was said by either Brown or Johnson at the same meeting.  This is not a basis for inferring that it was probably one of them who made the strike threat involving, as I find it did, a specific time frame.

   The pleading

   13 OCTOBER 2008

   28.Later on 13 October 2008, at a meeting of Upton, Johnson and Brown with Luskan, Marcano and Stuurstraat:

   (a)Upton orally repeated the Claim;

   (b)Brown orally repeated the Claim;

   (c)Brown orally repeated the Representation;

   (d)Upton orally repeated the Threat; and

   (e)Upton stated that the Threat would be implemented by the Employee Respondents refusing to attend work for one week, returning to work for one day, then refusing to work for another week unless the Claim was met by CBI (Statement).

   29.At that meeting, Upton, Johnson and Brown each, by his conduct, made the Representation, the Claim, the Threat and the Statement.  Their conduct included their attendance at the meeting in association with each other and their failure to disassociate themselves or the AMWU or CFMEU respectively from what was said by Upton and Brown.

   30.At that meeting, CBI did not meet the Claim and warned the union officials and delegates that the Threat and the Statement would be inconsistent with the dispute resolution procedures in the Collective Agreements.

   31.Later on 13 October 2008, CBI communicated with the Employee Respondents its reasons for refusing the Claim.

   Particulars

   On 13 October 2008, CBI provided a memorandum to the Employee Respondents setting out its position in relation to the Claim and the Representation, including the basis for refusing the Claim.

7. I find that Brown repeated the Representation when he showed the paper clipping to the CBI officers and said words to the effect that this demonstrated the correctness of the position being argued by the employees.

8. I find that Upton mentioned the Threat but in a way that it was apparent that he was not making the Threat on behalf of the employees but merely informing the CBI officers that the employees had asked that the Threat be conveyed to CBI.  This was not an act to assist what had been threatened.  It was no more than an act of communication.  It was so conveyed in the context of further discussion as to the Claim.  I find however, that Upton took it upon himself to make the Statement although he had not been asked to do so by the CFMEU members he represented.

9. I also find that Brown and Johnson implicitly, by failing to disassociate themselves from the Statement thereby adopted it.  Upton conveyed the Statement as one referable to all the CBI employees threatening strike action and not just CFMEU members.  Brown and Johnson, in those circumstances ought to have explained to the CBI officers that the Statement did not come from any of the employees or from either of them.  They remained silent when they had an obligation, in the circumstances I have described, to set the record straight.  Each of Upton and Johnson, at this meeting, was acting within the scope of his actual or apparent authority.

   Windus’ knowledge - 13 October 2008

10. Upton left the the Site for unrelated business on other sites.  He said that he had a telephone conversation with Windus at 8.45 pm.  He gave evidence, which I accept, that he told Windus about the employees meeting that morning, about the CBI meeting that morning, that Macaree had said in the afternoon that CBI would not make redundancy payments, and that there was a meeting of employees the following morning.  He told Windus enough that Windus must have known that there was a real likelihood that the employees would, during the meeting the next day, at the least consider going on strike.

11. Windus, in his statement, said that he “made communication with Brad (Upton) to get an update on the situation and to see if there was any possibility of meeting with the workers that afternoon”.  I do not believe Windus when he gave evidence that he did not that evening know of a meeting of CBI employees arranged for the following morning.  Given that the telephone call occurred and the associated circumstances, Upton's version is plausible but Windus' version is not. 

12. Moreover, he as well as McCartney said that he was sent to Karratha urgently for the purposes of the strike.  It is incredible that he would not have been informed about those matters by Upton at some time between arriving in Port Hedland some time before 8.13 am on 13 October 2008 and retiring that night.  He said that Upton was a friend of his.  It is incredible that he would not have inquired of anyone else, particularly Johnson or any other employee. 

13. On 13 October 2008, at 9.47 am, Windus and Duffy spoke by telephone for 3 minutes and 31 seconds.  At that point in time the two meetings (with employees and with CBI) had occurred. It is incredible that Duffy did not then know about those meetings.  He was already aware of, at least, a threat of strike action. 

14. I find that, by the evening of 13 October 2008, Windus knew of an employees meeting to take place the following morning, and knew the meeting was likely to concern strike action.  I also find that his evidence about those two facts was deliberately false.

15. When cross-examined as to why he had not, on 13 October, on his evidence, made enquiries in Karratha with people he knew about what was going on and therefore did not know about the meeting to take place the next morning, he said that he “had other matters to deal with”.  He said he got a phone call from Perth shortly after he got to the Karratha area informing him of the death of an AMWU member who had been crushed underneath a tilt tray by Coates Hire at Dampier Port.  He later said he was sent to Dampier Port that day to find out what had gone on and to gather information.  He said he drove to the Dampier Port that day.  He did not recall the deceased’s name.  He said that the man had not been crushed between a truck and a silo.  He thought the man was a fitter in his mid-forties.  He said that he spoke to the Dampier Port Harbour Master at the Port in the afternoon of that day about the death.  He did not remember the Harbour Master’s name.  

16. He said that he did not pursue the matter into 14 October because he believed the MUA had taken on the matter.  This is a reference to the Maritime Union of Australia. Despite this Windus did not attend the meeting of employees on 14 October 2008.  Windus said that was because he did not know of such a meeting.  This denial is contradicted by Upton.  Also, Upton said that Windus told him that a different exigency had arisen on the morning of 14 October 2008, which Windus never mentioned in Court.  I have accepted the evidence of Upton on these matters.

17. Windus’ evidence concerning the alleged death was not in his written statement but was proffered for the first time during cross-examination.  I find that this was a deliberate and recent invention on the part of Windus in order to explain away why, according to him, he did not know on 13 October about the meeting to take place in the morning of 14 October.

18. I do not believe his explanation concerning the death of a worker as to why he did not know of this meeting.  I find that Upton told him on 13 October of this meeting which was to take place the following morning.

    Application to admit rebuttal evidence

19. The Commissioner applies under the Court’s discretion for leave to adduce rebuttal evidence.  The evidence proposed extends only to whether there was a death that could match that described by Windus to explain why he might not have been able on 13 October 2008 to attend to the industrial relations situation at CBI’s site.

20. This is not an application to re-open the Commissioner’s case to lead further evidence in support of that case. Rather, it is made under s 106 of the Evidence Act for leave to adduce that further evidence in respect of an issue of the credit of Windus.  It is rare to give leave to adduce rebuttal evidence on credit.  Invocation of that section by a plaintiff necessarily involves the plaintiff adducing evidence after closing its case. 

21. The Commissioner submits that the issue of credit is of singular importance to the case against Windus and the AMWU.  He submits that after cross-examination, the Commissioner’s case includes that Windus deliberately did not attend on the morning of 14 October 2008 because he did not then want to tell employees not to strike.   The falsity of the story of the distraction of a death is a fact contended by the Commissioner as going to that inference.  Accordingly the Commissioner submits that Windus assisted, and was knowingly involved in, the strike on 14 October 2008 by deliberately refusing to inform member employees that their union, the AMWU, was against strike action.

22. I do not accept that the Commissioner can expand his case, whether as a result of cross-examination or otherwise, unless an amendment to that effect is sought and granted.  No such case is pleaded and no amendment was sought.  The general rule, based in procedural fairness, is that relief is confined to that available on the pleadings: Banque Commerciale SA v Akhil Holdings Ltd (1990) 169 CLR 279 per Mason CJ and Gaudron J at 288. This must, it seems to me, encompass not merely the relief pleaded but the facts alleged in the pleading upon which relief is sought. Borrowing from the judgment of Mason CJ and Gaudron J at 287, it cannot be said that in this case “the parties (chose) some different basis for the determination of their rights and liabilities”. Indeed the Commissioner was permitted, on 22 March 2011, on the second day of the trial, by order of the Court to amend his statement of claim. He was given further leave during the trial on 30 March 2011 to further amend his statement of claim.

23. It would be quite unfair to the respondents, particularly in proceedings for civil penalties, to allow the Commissioner any latitude in this respect. Indeed the Commissioner’s pleaded case was that Windus attended the meeting on the morning of 14 October.  I would for that reason not grant leave to the Commissioner to tender the proposed rebuttal evidence.  In any event, for other reasons stated, I have not accepted Windus’ evidence on this matter.

    Meeting of CBI employees - 14 October 2008

24. On 14 October 2008, at about 5.30 am, there was a meeting of CBI employees at the Bay Village camp site. Upton, Johnson and Brown attended.  There was no work that day.  The Commissioner submits that the proper inference is that the employees were told by Upton that CBI did not agree to the Claim and, pursuant to the employees' decision on 13 October 2008, they went on strike.  I find it likely that Upton did tell them or rather he confirmed CBI’s position.  Before the meeting, the employees had already received the letter signed by Marcano dated 13 October 2008 setting out CBI’s refusal to acknowledge that Phase V was finished or that redundancies would be paid.

    The pleading

    14 OCTOBER 2008

    32.At or about 5.30am on 14 October 2008, a number of the Employee Respondents attended a meeting at Bay Village, Karratha convened, alternatively attended, by Windus and Upton (14 October meeting).

    33.At the 14 October meeting:

    (a)Windus and Upton conducted the meeting to facilitate a vote of employees on whether to engage in industrial action.

    (b)Windus and Upton reported to those Employee Respondents present the refusal of CBI to meet the Claim.

    (c)Windus stated to those AMWU Employee Respondents present that the AMWU would support them if they took industrial action in support of the Claim.

    (d)Upton represented to those CFMEU Employee Respondents present that the CFMEU would support them it they took industrial action.  Upton’s representation is to be inferred from his attendance at the 14 October meeting, his role as a CFMEU organizer and his failure to disassociate the CFME from Windus’ statement.

    (e)Windus facilitated a vote of Employee Respondents.

    (f)Upton authorised Windus to facilitate the vote in respect of Employee Respondents who were CFMEU members.

    (g)The Employee Respondents present voted to take industrial action.

    (h)Windus and Upton undertook to report to CBI the result of the vote.

    (i)Windus and Upton stated to a number of Employee Respondents that they would convene another meeting the following day.

    34.Windus and Upton conveyed to CBI the results of the vote at the 14 October meeting.

25. Upton did not arrange the 14 October meeting.  There was no direct evidence, apart from his own, as to what occurred at that meeting.  He did not tell the employees anything that they did not already know.  There is no evidence that he arranged a vote concerning a strike, or that, contrary to his evidence, he did not warn the employees that a strike would be illegal.  There is no basis to infer the opposite.   

26. I accept his evidence that he advised the employees that they should allow him and the other representatives more time to speak with CBI management and that he told the employees to return to work.  It was not put to him in cross-examination that he did not do these things.

27. I find that whilst Upton attended this meeting, Windus did not.  Upton did not conduct the meeting to facilitate a vote of employees on whether to engage in industrial action.  Nor did he authorise Windus, obviously, to facilitate such a vote in respect of non-CFMEU employees.  Upton did not say that the CFMEU would support them if they took industrial action.

28. In any event, the employees, including Johnson, did take strike action on 14 October 2008.

    AIRC hearing and orders

29. As I earlier mentioned, instructions were given by CBI to the Chamber of Commerce and Industry which applied urgently to the AIRC for orders under s 496(1) of the WR Act. CBI made an application to the AIRC under s 496 of the WR Act on 13 October 2008. It could not be heard that day but was heard on 14 October 2008, and orders issued that day at about 1.40 pm, to take effect at 4.00 pm for one month.

30. The orders made by the AIRC were that: 

    (a)each of the Employee Respondents stop, and not engage in, industrial action (AIRC Order (a));

    (b) the AMWU and the CFMEU each:

    (i)stop organising and engaging in, and not organise or engage in, industrial action (AIRC Order (b)(i));

    (ii)advise its members that they must not engage in industrial action (AIRC Order (b)(ii)); and

    (a)Upton, Brown and Johnson stop organising and engaging in, and not organise or engage in, industrial action (AIRC Order (c)).

    Evening of 14 October 2008

31. There was a meeting of employees at Bay Village camp site.  Luskan and Stuurstraat noted a meeting of employees happening near the bus lay down area in Bay Village around 5.30 pm, but neither saw who was at the meeting. Marcano saw nothing.  Macaree saw nothing.

32. Windus attended and said that Upton did too.  Upton does not recall whether he did, but could not firmly deny it.  I find that he was present.

33. By the time of this meeting the AIRC Order had issued and taken effect. Windus was informed of the orders.  His statement at [61] reads as if he did not then know of the AIRC Order, but in oral evidence, he said that he meant that he did not know about the AIRC Order until after 4.00 pm, and before 5.30 pm, when he addressed the employees.

34. Copies of the AIRC Order were served on CBI employees on the evening of 14 October by Luskan and other CBI officers.  They were served either personally or by being left securely in the screens of the doors of individual employee’s rooms.

35. No evidence was adduced by the Commissioner as to when service was effected on Upton only the CFMEU.  It is not disputed by Upton that he was served with the AIRC Order at some stage.  He said that he could not recall precisely when he became aware of the contents of the Order.  I infer that Upton was informed on 14 October.  The CFMEU was represented at the AIRC hearing that morning, service was effected on the CFMEU that day; service was effected at Bay Village.  It is improbable that Upton was not made aware of these orders by his employer soon after they were made.

36. Windus recalled Upton telling the employees during the 5.30 pm meeting both that the CFMEU wanted them to return to work and that they had to go back to work because proceedings had been brought against them to stop them taking industrial action.

37. Counsel for Upton submits that there is support for the evidence of Windus regarding this meeting from Macaree.  In cross-examination, Macaree gave the following evidence:

    Did Mr Upton and Mr Windus, between them, tell you at that meeting that earlier that afternoon, that is, on the 14th, they had met with employees at Bay Village and explained the AIRCs order to them?---That’s correct.

    And they also told you, between them – you may have difficulty recalling who said what but they told you, between them, that they had told the employees at that earlier meeting that they were required to return to work?---I think that probably was the case, yes. I don’t have a specific recollection but it was made clear to me that they had explained the content of the order which included a return to work. I mean, I don’t doubt that.

    . . .

    All right?---I mean, I do know that they said that they conveyed the contents of the order of the Industrial Relations Commission.

38. However, this evidence does not necessarily mean that Upton and Windus accurately recounted to Macaree what they had told the employees.  However, it is a clear statement as to the knowledge of Upton and Windus as to the content of the AIRC Order.

39. The Commissioner accepts that Windus told the employees they must not strike for 4 weeks, which was a reference to the duration of the AIRC Order.  However, the Commissioner submits that this is tantamount to saying to the employees that strike action is acceptable but for the AIRC Order.  I do not agree.  It was no more than a statement of fact as to the effect of the AIRC Order even if he did not mention the actual AIRC Order.

40. The Commissioner poses the question as to why Upton did not openly admit that he had knowledge of the terms of the AIRC Order on 14 October 2008.  The same question, he submits, applies in respect of the employees early morning meetings on 15 and 17 October 2008 because, on his statement, he did not raise the AIRC Order with employees until 20 October 2008.  He makes no previous mention of having referred employees to the AIRC Order.  He said at the 20 October meeting of employees at the Bay Village “the first thing both of us said was words to the effect that the unions wanted them to return to work because there was orders on them to do so”, indicating that the Order was something new to be urgently addressed.

1. The purpose of s 826(2)(b) of the WR Act is to remove any common law requirement for authorisation of the conduct by the constitution, rules or membership, or alternatively later ratification of the conduct, or the receipt of some benefit from the conduct, in order for the industrial association to be bound by the conduct.

2. In this case the Commissioner seeks application of s 826(2)(b) to Brown and Johnson.  Johnson was a delegate and hence a person who had the implied consent of the AMWU.

3. No cause of action can arise from a mere failure to prevent, or a mere failure to try to prevent, the commission of a contravention.  But that is subject to the existence of any duty to prevent the contravention.  Here a duty does arose: the AIRC Order contained a mandatory component; it ordered the unions to advise members that they must not continue to engage in industrial action. 

   Alleged breaches and pleading

4. As I have already mentioned, the Commissioner is confined to his pleaded case.  I will now consider those pleaded claims in light of the findings of fact which I have made.

   Unlawful industrial action: s 38 BCII Act

5. The SOC pleads that the industrial action taken on 14 October 2008 as the “14 October industrial action” and that taken between 17-24 October as the “17-24 October industrial action”.  Together they are described as the “October industrial action”.  The following alleged breaches are in each case referrable to the October industrial action.

6. The Employee Respondents admit being engaged in unlawful industrial action.  The Unions, Upton, Brown, Johnson and Windus admit that the Employee Respondents so engaged in unlawful industrial action.  

   Windus and the AMWU

7. The claim pleaded is that:

   64.         Windus and the AMWU:

   (a)…

   (b)aided, abetted and/or counselled the Employee Respondents to engage in the October industrial action through the conduct alleged above, including in paragraphs 21, 24, 33, 39, 41-0 and 47-49; and/or

   (c)were knowingly concerned in or party to the October industrial action through the conduct mentioned in sub-paragraph (b) of this paragraph;

   and thereby contravened s 38 of the BCII Act.

8. I have found that Windus made the Threat pleaded in the context of the Representation and Claim. However, there was then no contravention by the employees of a civil penalty provision for the purposes of s 48(2) of the BCII Act. Nor had they threatened a contravention to which, if it had been put into effect, the Threat could relate. The Threat, in that case, was not linked in purpose with the employees. Accordingly, Windus was not a “person who is involved” in such a contravention. Accordingly, neither he nor the AMWU cannot in those circumstances be liable. The other allegations pleaded were not established.

   Johnson and the AMWU

9. The Commissioner pleads that Johnson and the AMWU were knowingly concerned in or party to the October industrial action through the conduct of Johnson and thereby contravened s 38 of the BCII Act. I find that the only allegation made out against Johnson and therefore the AMWU is Johnson’s failure to disassociate himself and the AMWU from the Statement made by Upton at the meeting with CBI officers on 13 October 2008. He thereby adopted it as his own statement. The other allegations were not established.

10. Johnson thereby aided and abetted unlawful industrial action by representing the AMWU at the meeting on 13 October 2008 with the CBI officers. The unlawful industrial action threatened by the employees and to which the Statement attached was that taken the following day, the 14 October 2008. The AMWU is deemed by s 69 of the BCII Act to have engaged in the same conduct as Johnson.

    Holdsworth and the AMWU

11. The Commissioner pleads that Holdsworth and the AMWU:

    (a)aided and abetted the Employee Respondents to engage in the October industrial action through the conduct alleged above, including in paragraphs 55-57; and/or

    (b)were knowingly concerned in or party to the October industrial action through the conduct mentioned in sub-paragraph (a) of this paragraph;

    and thereby contravened s 38 of the BCII Act.

12. These allegations have not been established.

    Upton and CFMEU

13. Upton and the CFMEU:

    (a)aided, abetted and/or counselled the Employee Respondents to engage in the October industrial action through the conduct alleged above, including in paragraphs 21-22, 24-29, 33, 39, 41-0, 47-49 and 54-57; and/or

    (b)were knowingly concerned in or party to the October industrial action through the conduct mentioned in sub-paragraph (b) of this paragraph;

    and thereby contravened s 38 of the BCII Act.

14. I find that the only contravention by Upton and thereby the CFMEU was that he aided and abetted the employees to engage in the October industrial action by his conduct in making the Statement at the meeting with CBI officers on 13 October 2008. At that time and by that conduct he linked himself in purpose to the employees’ Threat. None of the other alleged contraventions have been established. The CFMEU is deemed by s 69 of the BCII Act to have engaged in the same conduct. The employees had threatened an actual strike. The strike was imminent as the employees had stated that if they did not get a (positive) answer to their claim by the end of the day (13 October) they “were going out”. Upton, Johnson and Brown each knew that to be the case: Sent v Jet Corporation.

    Brown and CFMEU

15. The Commissioner pleads that both Brown and through him the CFMEU were knowingly concerned in or party to the October industrial action through the conduct of Brown and thereby contravened s 38 of the BCII Act. However, I have found that Brown acted only as an employee representative and not on behalf of the CFMEU. Brown is liable as an individual for aiding and abetting, at the meeting with CBI officers on 13 October 2008, the unlawful industrial action threatened by the CBI employees. However, the CFMEU is not.

    Industrial action before nominal expiry of agreement: s 494 WR Act

16. The Employee Respondents (including Brown and Johnson) are liable, as is admitted by all parties.

17. The Commissioner pleaded that Upton and Windus assisted and were knowingly concerned in that conduct under s 728 of the WR Act, in that each knew the contents of the Union Collective Agreements, since each Union was bound by it, each person knew the essence of the redundancy claim which claim arose from the agreement, from which it necessarily follows that its nominal expiry had not passed (even if on the CBI employees’ argument that Phase V had finished). However, at trial the Claim under this head was, correctly, withdrawn as against Windus. Windus was not bound by the AMWU Collective Agreement.

18. The Commissioner also allege that the CFMEU and AMWU engaged in the same conduct by virtue of s 826(2) of the WR Act. These allegations are denied.

19. The Commissioner pleads his case against those parties as follows:

    Windus

    Windus breached s 494(1) of the WR Act in circumstances where:

    (a)he organised and/or engaged in the October industrial action through the conduct alleged above;

    (b)the AMWU Collective Agreement was in operation at the time of the industrial action and its nominal expiry date had not passed; and

    (c)he was an officer or employee of the AMWU, which was covered by the AMWU Collective Agreement, and was acting in that capacity.

    AMWU

    The AMWU breached s 494(1) of the WR Act in circumstances where:

    (a)it engaged in the October industrial action through the conduct alleged above of Windus, and Johnson who were officers, employees or agents of the AMWU knowingly acting within the scope of their actual or apparent authority:

    (b)the AMWU Collective Agreement was in operation at the time of the industrial action and its nominal expiry date had not passed; and

    (c)the AMWU was covered by the AMWU Collective Agreement.

    Upton

    Upton breached s 494(1) of the WR Act in circumstances where:

    (a)he organised and/or engaged in the October industrial action through the conduct alleged above;

    (b)the CFMEU Collective Agreement was in operation at the time of the industrial action and its nominal expiry date had not passed; and

    (c)he was an officer or employee of the CFMEU, which was covered by the CFMEU Collective Agreement, and was acting in that capacity.

    CFMEU

    The CFMEU breached s 494(1) of the WR Act in circumstances where:

    (a)it engaged in the October industrial action through the conduct alleged above of Upton, who was-at all material times either an officer, employees or agents of the CFMEU and Brown, who was at all material times an agent of the CFMEU, knowingly acting within the scope of their actual or apparent authority;

    (b)the CFMEU Collective Agreement was in operation at the time of the industrial action and its nominal expiry date had not passed; and

    (c)the CFMEU was covered by the CFMEU Collective Agreement.

20. I find the alleged contraventions established but again limited to the relevant conduct I have described above concerning the 13 October meeting with the CBI officers, as against Upton and thereby also the CFMEU as well as the AMWU by reason of Johnson’s conduct.

    Breach of issue resolution procedure and s 719 of WR Act

21. The Commissioner contends that the Employee Respondents did not follow the Issue Resolution Procedure (IRP) in the Union Collective Agreements – they went on strike instead of (ultimately) engaging arbitration. I find that they breached the relevant provisions and for reasons which follow are liable to a penalty under s 719(1) of the WR Act.

22. Under s 719(1) of the WR Act an eligible court may impose a penalty if:

    (a)The person is bound by an applicable provision; and

    (b)The person breaches the provision.

23. Section 717 states an “applicable provision” includes a Collective Agreement. Windus is not bound by this Collective Agreement. Section 727(1)(a) states division three, which includes assessorial liability under s 728, applies to s 719.

24. Moreover, the Commissioner does not plead by way of relief in SOC [86] that Windus breached the relevant cll 8, 9 and 39(14) of AMWU Collective Agreement.  Nor is any declaration sought against Windus in this regard, although it is sought against the employees. 

25. The Commissioner submits that Johnson, Upton and Brown assisted and were knowingly concerned in that conduct under s 826(2) WR Act: each knew that the Union Collective Agreements contained an IRP, which excluded strike action; each knew the contents of the Union Collective Agreements, since each union was bound by it, each person knew the essence of the redundancy claim which claim arose from the agreement, and Luskan on 13 October 2008 brought to the attention of Upton, Brown and Johnson the need to follow the IRP in the Union Collective Agreements. I find that Luskan did this. These allegations are denied. I find that Upton and Johnson but not Brown, were involved but only to the extent of their conduct at the meeting on 13 October 2008 with the CBI officers. However, Brown is liable in any event as an employee.

26. The CFMEU and the AMWU respectively are thereby accessorily liable for the conduct, respectively, of Upton and Johnson in respect of this breach. 

27. The Commissioner pleads that the respondents, by engaging or being involved in the October industrial action, were in breach of the Collective Agreements in circumstances where:

    (a)each of the Collective Agreements contained a relevantly identical IRP;

    (b)the IRP provided for various steps to take in the event of an issue, complaint or problem arising in relation to work under the Collective Agreements;

    (c)an issue, complaint or problem in relation to work under the Collective Agreements arose (in relation to the Representation, the Claim and the Threat); and

    (d)the steps in the IRP were not followed, with work not continuing without any form of stoppages or strikes (the October industrial action).

28. The Commissioner then pleads that the following respondents were in breach as follows:

    (a)The employees bound by the AMWU Collective Agreement, by engaging in the October industrial action, as alleged, without first following the steps of the IRP set out in the AMWU Collective Agreement, failed to comply with cll 8(3), 9 and 39(14) of the AMWU Collective Agreement and thereby are liable to penalties under s 719(1) of the WR Act.

    (b)The AMWU, by being involved in the October industrial action, as alleged, without first following the steps of the IRP set out in the AMWU Collective Agreement, failed to comply with cll 8(4) and 9 of the AMWU Collective Agreement and thereby are liable to penalties under s 719(1) of the WR Act.

    (c)The employees bound by the CFMEU Collective Agreement, by engaging in the October industrial action, as alleged, without first following the steps of the IRP set out in the CFMEU Collective Agreement, failed to comply with cll 8(3), 9 and 39(14) of the CFMEU Collective Agreement and thereby are liable to penalties under s 719(1) of the WR Act.

    (d)The CFMEU, by being involved in the October industrial action, as alleged, without first following the steps of the IRP set out in the CFMEU Collective Agreement, failed to comply with cll 8(4) and 9 of the CFMEU Collective Agreement and thereby are liable to penalties under s 719(1) of the WR Act.

29. Clauses 8(3) and (4), 9 and 39(14) of each of the AMWU and CFMEU Collective Agreement relevantly provide as follows:

    SECTION 2: OBLIGATIONS TO THE PROJECT

    8.   OBLIGATIONS OF THE PARTIES AND PERSONS BOUND

    (1)       . . .

    . . .

    (2)       . . .

    EMPLOYEES

    (3)Employees bound by this Agreement are obliged, in relation to work covered by this Agreement, to:

    •  

    •
    •

    •  

    •

    •  

    •   Resolve all complaints or disputes in accordance with the procedures for resolving issues or if the issue is a safety concern, in accordance with the procedure for resolving safety concerns contained within this Agreement.

    UNION

    (4)The Union bound by this Agreement is obliged, in relation to work covered by this Agreement which is to be performed by members of the Union, to:

    •  

    •  

    •  

    •   Resolve all complaints or disputes or issues (where invited by a member to play a representative role) in accordance with the procedures for resolving issues or if the issue is a safety concern, in accordance with the procedure for resolving safety concerns contained within this Agreement.

    . . .

    9.ISSUE RESOLUTION PROCEDURE

    Consistent with the objectives expressed in Clause 2 – Objectives of this Agreement, the Parties and Persons Bound by this Agreement commit to resolve complaints and problems using the Issue Resolution Procedure contained at Appendix 4 of this Agreement.

    . . .

    SECTION 6: CONTRACT OF SERVICE

    39.   CONTRACT OF SERVICE

    . . .

    GENERAL CONDITIONS

    . . .

    (14)Employees shall comply with all lawful directions given by the Company and comply with all Site policies and procedures applicable to the Project work.

    . . .

30. The AMWU made the following submissions:

    (1). . .

    (a)Clauses 8(4) and 9 (read with Appendix 4) of the AMWU Collective Agreement, properly construed, does not impose an enforceable obligation on the AMWU so as to expose it to the imposition of a penalty in the event of non-compliance; and

    (b)In any event, no acts or omissions of the AMWU can be properly said to give rise to a failure to comply with cll 8(4) and 9.

    (2)At a general level, the principles attending the construction of industrial instruments are well settled.  Specifically:

    (a)The textual meaning of a given provision in an industrial instrument remains the starting point for its construction, however (and consistently with the construction of statutes) industrial context and purpose are also relevant in construing the language chosen by parties who have struck an agreement to regulate employment.

    (b)Narrow or pedantic approaches to the interpretation of an industrial instrument are misplaced.

    (c)Meanings which avoid inconvenience or injustice may reasonably be strained for.

    Kucks v CSR Ltd (1996) 66 IR 182 at 184 applied in, most importantly, Amcor Ltd v Construction, Forestry, Mining and Energy Union (2005) 222 CLR 241, and see also CEPU v QR Ltd (2010) 268 ALR 514 at [39] (sustained on appeal as to liability: QR Ltd v CEPU [2010] FCAFC 150.)

    (3)Notwithstanding those general principles, not every provision in an industrial agreement is to be taken as intended to impose an enforceable obligation on one party or another.  It is not every non-compliance with a given provision in an industrial instrument that will expose that party to the imposition of a penalty.  Some provisions may be characterised as hortatory or merely reflective of a desirable policy or end without necessarily attracting penal consequences.  Other provisions may be best characterised as facilitative in nature when one has regard to their operation in a practical industrial relations context:  Reeves v MaxiTRANS Australia Pty Ltd [2009] FCA 970 at [19]; Bell v Minister for Health [2006] FCA 134 at [20].

    (4)Section 719(1) of the WR Act confers a discretion on an eligible court (such as this Court) to impose a penalty in accordance with Part 14 Division 2 on a person if:

    (a)       the person is bound by an applicable provision;  and

    (b)       the person breaches the provision.

    (5)The chosen language of “breaches” employed in s 719(1)(b) directs attention to the well established doctrine of statutory interpretation which recognises a clear dichotomy between:

    (a)on the one hand, true breaches which found a conclusion of invalidity or liability; and

    (b)on the other hand, a mere non-compliance with a given provision which does not give rise to invalidity or liability, or which otherwise has some lesser consequence at law. 

    (6)Thus in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [92] the High Court noted that traditionally courts have distinguished between acts done in breach of an essential preliminary to the exercise of a statutory power or authority and acts done in a procedural condition for the exercise of such a statutory power or authority. On that traditional classification, the two categories were seen as being concerned with provisions truly mandatory in character, as opposed to provisions that are merely directory. If, on that now discarded nomenclature, a statutory condition is properly to be characterised as merely directory, an act done in breach of it does not result in invalidity.

    (7)The High Court disavowed the continued use of the “elusive distinction” between directory and mandatory requirements and, for that matter, the division of directory acts into those which have substantially complied with a statutory command and those which have not.  It propounded as the better test, and one which now governs the common law of Australia concerning statutory interpretation, in determining the question of validity of an act done in breach of a statutory provision as being to ask the following question (at [93]): was it a purpose of the legislation that an act done in breach of the provision should be invalid? 

    (8)It is accepted that the cause of action, and hence the nature of the ultimate question before the High Court in Project Blue Sky were different to the present circumstances. The Court was concerned with the question of whether a failure to comply with s 160 of the Broadcasting Services Act 1992 (Cth) (requiring the respondent to perform its functions in a manner consistent with Australia’s international obligations) gave rise to invalidity of a provision of an Australian Content Standard for television programming made under that primary legislation.

    (9)However, the analogy with the operation of s 719 of the WR Act and the susceptibility of a person to pecuniary penalties in the event of non-compliance with a given provision of an industrial instrument is a close one. Just as not every provision of an industrial instrument ought be construed as being intended to give rise to obligatory requirements that ground in penal consequences in the event of non-compliance (as recognised by Judges of this Court in Reeves and Bell), it is germane to ask whether it can fairly be said to be a purpose of a given provision that an act or omission that fails to comply with, or in the literal sense “breaches” a provision should expose one to a pecuniary penalty. 

    (10)The nature of cll 8(4) and 9 of the AMWU Collective Agreement are properly characterised as being facilitative rather than imposing a norm or standard of conduct which, if not met, ought give rise to the imposition of a penalty.  No point is taken as to the AMWU being, in a general sense, a “Person Bound” by the AMWU Collective Agreement (see language employed at heading to cl 8 and preamble to cl 8(4); see further cl 9 and preamble to Appendix 4, cl (1)). 

    (11)The question still remains very much open whether, despite the AMWU being generally bound by the Collective Agreement, then (adapting the “better test” propounded in Project Blue Sky) there can be fairly discerned, a purpose of the agreement struck, and given effect to in the Collective Agreement that an act or omission that does not comply with the text of cll 8(4) or 9 exposes the AMWU to a civil penalty.

    (12)The immediate context in which cl 8(4) appears is important. It is one of a series of provisions within the overall rubric expressed as “Obligations to the Project”.  The first such obligation is on the subject of “Project Consultation and Communication”. It is concerned with achieving a harmonious relationship and ensuring the maintenance of the construction program set for the Project.  The expressed “obligation” is, in its operative content, expressed as an “encouragement” upon the parties and persons bound to contribute to that ongoing consultation process. 

    (13)The second expressed “obligation” is one of equal employment opportunity and the taking of steps not to condone, and to otherwise deal with, ills in the workplace such as harassment, bullying, discrimination and the like. 

    (14)Laudable as the goals and ideals are as expressed in the first two sub-clauses of cl 8, it is difficult to characterise the content of the provisions as being truly obligatory in character.  To determine whether any given conduct or omission was truly directed towards achieving a harmonious working relationship would be extremely difficult to achieve with any precision.  Moreover equal opportunity in employment and related matters are topics dealt with fulsomely through legislative frameworks which are themselves capable of enforcement through a range of statutory remedies.  The text of cl 8(2) does not readily lend itself to enforcement by means of imposing a punitive sanction.

    (15)It is against that background that sub-cl 8(4) falls to be construed.  Requirements to “ensure” that officials and other officers of the AMWU are “fully aware” of the terms of the Certified Agreement and “committed to” observing those terms are extremely broad in their potential import.  Even more so is the requirement to “ensure” that officials, etc are “aware of and committed to” the objectives of the Certified Agreement. 

    (16)To suggest any given absence of “full awareness” on the part of an officer of any given provision of the Collective Agreement is capable of giving rise to a civil penalty upon the AMWU for a “failure” so to ensure would be a highly oppressive operation of sub-cl 8(4). The better construction, compatible with the principles summarised above, is that the entirety of cl 8, including sub-cl 8(4) is one exhorting parties bound to reach a desirable, aspirational standard of industrial conduct.

    (17)The language of “commitment” does not, when proper account is taken of sensible industrial reality and the avoidance of a pedantic approach to interpretation, carry the proper meaning of commitment in the sense of imposing an obligation enforceable under s 719. Put slightly differently, this is a case where the legal meaning departs from the grammatical meaning: Project Blue Sky at [78]

    (18)Just as cl 8 is expressed in terms of “obligations” and “commitment” (but, as submitted, ought be characterised as being facilitative rather than truly obligatory), cl 9 likewise expresses that the Parties and Persons Bound by the AMWU Collective Agreement “commit to resolve complaints and problems” using the IRP in Appendix 4. Again, the surrounding context aids an industrially realistic interpretation.  The “commitment” in the terms of cl 9 is itself expressed to be consistent with the Objectives in cl 2 of the agreement.

    (19)Clause 2 advances a range of desirable and sensible aims to establish conditions of employment and workplace processes.  Specifically it expresses that the Parties and Persons Bound “commit to” a “continuing process of identifying activities” to improve cost efficiency, including “taking a positive approach to overcoming inefficiencies”.  These are properly to be construed as aspirational in nature.

    (20)The provision immediately following cl 9 concerns an Employee Counselling and Discipline Procedure.  Clause 11(1) and (2) in turn deal with a procedure for resolving safety concerns. Overall, the subject matter, language and generality of cll 8-11(2) inclusive are facilitative in nature rather than indicative of a set of norms or standards susceptible to enforcement through civil litigation and the obtaining of punitive sanctions.  Numerous other provisions of the AMWU Certified Agreement are different in their character and mode of expression.  Sub-cl 11(3) for example, imposes a clear, specific requirement on the company to issue to each Employee certain specified protective clothing.  Clause 12(1) provides for minimum wage rates payable to employees. Many other examples may be identified. 

    (21)The staged process of the IRP itself has the purpose of achieving an agreed or conciliated resolution of a vast range of matters – “all issues, complaints and problems arising in relation to work under” the Collective Agreement: cl (1) of Appendix 4. Ultimately, jurisdiction is conferred, by the parties’ agreement, on the AIRC to exercise processes of conciliation and, in turn, arbitration under the WR Act. Those processes are provided for in some detail – see cll (4)-(8) and (9)-(15) of Appendix 4 respectively.

    (22)Overall, the nature of the IRP, and purpose to be inferred, is that it is designed to facilitate agreed resolution of workplace issues. The peril of a punitive sanction is inimical to fostering a workplace culture of conciliation and co-operative industrial relations. The language of “commitment” must be construed in light of that purpose and context and read down accordingly.

    (23)It is acknowledged that in Van Efferen v CMA Corporation Ltd (2009) 183 IR 319 Tracey J held that non-compliance with a grievance procedure in an Australian Workplace Agreement grounded a claim for damages under s 721 of the WR Act. Aside from the character of that enforcement proceeding being different to one which seeks a pecuniary penalty under s 719, the point presently taken does not appear to have been advanced in the same manner, if at all, before Tracey J.

    (24)Specifically in respect of the employees bound by the AMWU Agreement, cll 8(3) and 39(14) are also invoked by the Commissioner.  In light of all of the context canvassed above, nothing in the language of those provisions justifies a construction that the purpose of the parties in striking the Collective Agreement was to create a susceptibility to punitive sanctions.

    (25)Further and in any event, the language at the heart of the IRP at cl (2) of Appendix 4 requires of employees, their nominated representatives and certain specified Managers to take certain steps to facilitate an agreed resolution of problems at the workplace. Where the issue remains unresolved, one or more of those persons involved, or the Company, is empowered to “refer the issue” to the AIRC: cl (2) Step 4.  The powers and processes of the AIRC then become operative to conciliate and, failing resolution through conciliation, arbitrate the issue in dispute.

    (26)Even on the terms of the IRP, no requirement is expressed on the AMWU, save perhaps to “maintain the integrity” of the Certified Agreement: cl (3).

    (27)Thus even if cl 9 read with Appendix 4 imposed a true obligation on any of the Parties Bound, no act or omission of the AMWU constitutes a breach for the purposes of s 719(1)(b) capable of sounding in a pecuniary penalty. Contrary to para 83 of the Further Amended Statement of Claim, there were no applicable “steps” that the AMWU failed to “follow”.

1. The CFMEU and Upton endorse and adopt these submissions of the AMWU and Johnson insofar as the CFMEU and Upton submit that the IRP in the CFMEU Collective Agreement were not intended to impose an enforceable obligation on one party or another so as to give rise to a civil penalty liability for non-compliance. 

2. I do not accept the submissions of the affected respondents.  The terms of each of the relevant provisions are expressed as “Obligations of the Parties and Persons Bound”.  The expressions “Parties and Persons Bound” is defined in cl 3 of each Agreement as the CFMEU/AMWU, CBI and the Employees of CBI employed in the classifications set out in Appendix 2.  Clauses 8(3) and (4) oblige the Employees and the relevant Union respectively to resolve all complaints or disputes or issues in accordance with the IRP.  This procedure is contained in Appendix 4 to each of the Agreements.  This provides for a stepped process of discussion between the Employee(s) and increasing levels of management and, failing settlement, by reference of the issue to the AIRC for consideration and later in certain circumstances to arbitration. 

3. These are core provisions of the respective Collective Agreements. They are not merely hortatory or encouragements towards compliance. They are contractual obligations arrived at securing harmony in the workplace and the resolution of disputes without resort to industrial action. Breach of these obligations renders the contravener liable to a penalty under s 719 of the WR Act.

   Breach of Order of AIRC – s 496(10) WR Act

4. This cause of action applies to respondents who were members of one or other union and to those named in the AIRC Order.  It does not apply to Windus.

5. Otherwise, the Employee Respondents are liable and have admitted liability.  The Unions, Upton, Windus and Brown admit that these respondents breached the AIRC Order.

6. The Commissioner pleads as follows:

   (a)The AMWU failed to comply with AIRC Order (b)(i) by being a party to or knowingly concerned in the 17-24 October industrial action through the conduct of Windus alleged above, including in paras 39, 41-0, 47-49 and 54-57 and thereby was in contravention of s 496(10) of the WR Act.

   (b)The AMWU failed to comply with AIRC Order (b)(ii) by failing to immediately advise its members that they must not engage in industrial action and thereby was in contravention of s 496(10) of the WR Act.

   (c)Upton failed to comply with AIRC Order (c) by being a party to or knowingly concerned in the 17­-24 October industrial action through his conduct alleged above, including in paras 39, 41-0, 47-49 and 54-57 and thereby was in contravention of s 496(10) of the WR Act.

   (d)The CFMEU failed to comply with AIRC Order (b)(i) by being a party to or knowingly concerned in the 17-24 October industrial action through the conduct of Upton alleged above, including in paras 39, 41-0, 47-49 and 54-57, and through the conduct of Brown alleged above, and thereby was in contravention of s 496(10) of the WR Act.

   (e)The CFMEU failed to comply with AIRC Order (b)(ii) by failing to immediately advise its members that they must not engage in industrial action and thereby was in contravention of s 496(10) of the WR Act.

   Upton and CFMEU

7. The only actionable conduct I have found against Upton is that he made the Statement at the meeting with CBI officers on 13 October 2008.  However, this was prior to the making of the AIRC Order.  The CFMEU can only be accessorily liable for Upton’s conduct if he is found to be accessorily liable.

8. I find on the available evidence that Upton and thereby also the CFMEU made all reasonable efforts to inform the employees of the AIRC Order, despite not having good recall of when he personally first became aware of it.  In any event, he had already been advising the employees to the same effect as the order since before the AIRC Order was made.  The CFMEU is not liable for the conduct of Brown.  I find that Upton is not liable, and neither is the CFMEU in respect to these alleged contraventions.

   Windus and AMWU

9. The Commissioner concedes, correctly, that Windus was not bound by the AIRC Order, so therefore is not sought to be made personally liable under s 496(10).

10. Distinctly, it is said that the AMWU failed immediately to advise its members that they must not engage in industrial action, thereby failing to comply with AIRC Order (b)(ii).  However Windus on behalf of the AMWU did so very soon after the AIRC Order issued on 14 October, satisfying the ‘immediacy’ requirement, as he and Upton informed Macaree.

11. Windus’ further evidence was that he repeated that advice subsequently on 15 and 17 October and Upton’s evidence acknowledged the substance of he and Windus telling the employees that they should return to work on those days. 

12. I reject the claim that the AMWU was disinclined to attend to the requirements directly imposed on it by the AIRC Order.  The claim is inconsistent with the AMWU’s strongly worded policies concerning the very limited bases on which industrial action can be authorised as well as with McCartney’s express direction to Windus of 13 October.  I find that through Windus the AMWU complied with Order (b)(ii).

    Conclusions

13. I have found that in addition to the admitted liability of the Employee Respondents, including Brown and Jonson in that capacity, that the Commissioner has established the following alleged contraventions but not otherwise:

    (a)Upton, by his conduct in making the Statement and each of Brown and Johnson by their conduct in not disassociating themselves from the Statement took unlawful industrial action by virtue of s 48 of the BCII Act at the meeting with CBI officers on 13 October 2008 (the 13 October meeting with CBI) and thereby contravened s 38 of the BCII Act.

    (b)Each of the CFMEU and the AMWU took unlawful industrial action by virtue of s 69 of the BCII Act in respect of the conduct of Upton and Johnson respectively at the 13 October meeting with CBI and thereby contravened s 38 of the BCII Act.

    (c)The AMWU, by virtue of s 826(2) of the WR Act breached s 494(1) of the WR Act through the conduct of Johnson at the 13 October meeting with CBI.

    (d)Upton breached s 494(1) of the WR Act by his conduct at the 13 October meeting with CBI.

    (e)The CFMEU, by virtue of s 826(2)(a) of the WR Act breached s 494(1) of the WR Act through Upton’s conduct at the 13 October meeting with CBI.

    (f)The CFMEU, through Upton’s conduct at the 13 October meeting with CBI, breached the relevant provisions of a Collective Agreement and thereby became liable to a penalty under s 719 of the WR Act.

    (g)The AMWU through Johnson’s conduct at the 13 October meeting with CBI, breached the relevant Collective Agreement and thereby became liable to a penalty under s 719 of the WR Act.

14. I am satisfied that declarations in respect to the contraventions found ought be made.

15. The issue of whether any penalties and, if so, in what amounts, should be ordered, falls to be determined in due course.

16. I will direct the parties to bring in a minute of proposed declarations and orders within 14 days to reflect the conclusions contained in these reasons and failing agreement there will be liberty to the parties to apply.  I will also hear the parties on the question of costs.

I certify that the preceding two hundred and sixty-nine (269) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gilmour.

Associate:

Dated:        22 August 2011

SCHEDULE 1

MURRAY ARCARO
Third Respondent

MOSES ASIATA
Fourth Respondent

SERGIO BAEZ
Sixth Respondent

FRANCISCO BARRAZA
Ninth Respondent

ROLAND BAZAEZ
Twelfth Respondent

LEON BECKER
Thirteenth Respondent

PATRICK BIRD
Sixteenth Respondent

TERRANCE BISHOP
Seventeenth Respondent

ROMEO BONCATO
Nineteenth Respondent

DARREN BOXALL
Twentieth Respondent

ROBERT BROWN
Twenty-Fifth Respondent

SLAVO CEKLIC
Twenty-Eighth Respondent

KIM CHENNELL
Twenty-Ninth Respondent

JASON CHROMIAK
Thirty-First Respondent

ROBERT CLARK
Thirty-Second Respondent

DAVID COLLINS
Thirty-Fourth Respondent

DONALD COLYER
Thirty-Fifth Respondent

CHRIS CORRIGAN
Thirty-Seventh Respondent

ALLAN COUTTS
Thirty-Eighth Respondent

LANCE CRONIN
Thirty-Ninth Respondent

ANDREW CROSIER
Fortieth Respondent

RENEE CUMBERS
Forty-First Respondent

KENNETH CUMMING
Forty-Second Respondent

ALASTAIR CUNLIFFE
Forty-Third Respondent

AIDEN DAVEY
Forty-Fifth Respondent

SCOTT DEVINE
Forty-Ninth Respondent

CLAUDE DEVOS
Fiftieth Respondent

JOHN DICKSON
Fifty-First Respondent

NORMAN DODGIN
Fifty-Third Respondent

DANIEL DOYLE
Fifty-Fifth Respondent

MATT DRUMMOND
Fifty-Sixth Respondent

JOHANNES DUPLESSIS
Fifty-Ninth Respondent

WARWICK FAULKNER
Sixty-Fourth Respondent

VICTOR FAUSTINO
Sixty-Fifth Respondent

JOSE FERREIRA
Sixty-Seventh Respondent

GEORGE FITZROY
Seventy-First Respondent

DAVID FRASER
Seventy-Second Respondent

SALVATORE FRONTE
Seventy-Third Respondent

LOUIE GEROVICH
Seventy-Eighth Respondent

SIMON GILBERT
Eighty-Second Respondent

TAY GOODALL
Eighty-Third Respondent

DUANE GUYATT
Eighty-Eighth Respondent

JOHN HARVEY
Ninetieth Respondent

QUINTON HEBBARD
Ninety-First Respondent

ROBERT HOLT
Ninety-Fourth Respondent

STEPHEN HONICKE
Ninety-Fifth Respondent

ANDREW HORNBY
Ninety-Sixth Respondent

CHRISTOPHER HOWARD
Ninety-Seventh Respondent

VINCENT HOWES
Ninety-Eighth Respondent

NIKOLA IVKOVIC
One Hundred and Third Respondent

DENIS JACKSON
One Hundred and Fourth Respondent

MARK JOHNSON
One Hundred and Sixth Respondent

RICHARD JONES
One Hundred and Seventh Respondent

RAYMOND JONES
One Hundred and Eighth Respondent

TURIPI KARUTJINDO
One Hundred and Tenth Respondent

EMIN KECAP
One Hundred and Eleventh Respondent

SHAUN KEILY
One Hundred and Twelfth Respondent

LENKO KORLJAN
One Hundred and Thirteenth Respondent

DARRIN LANE
One Hundred and Fifteenth Respondent

SHANE LAVELLE
One Hundred and Sixteenth Respondent

CHRISTINE LEAHY
One Hundred and Seventeenth Respondent

CHARLIE LINESS
One Hundred and Eighteenth Respondent

CLIFFORD LOGAN
One Hundred and Nineteenth Respondent

KENNETH LOGAN
One Hundred and Twentieth Respondent

DONALD MACKAY
One Hundred and Twenty-Third Respondent

JAMES MANN
One Hundred and Twenty-Fourth Respondent

DENIS MARRINER
One Hundred and Twenty-Sixth Respondent

GHEORGHE MATEIU
One Hundred and Twenty-Seventh Respondent

GREGORY MCCARTHY
One Hundred and Thirtieth Respondent

PAUL MCGEADY
One Hundred and Thirty-First Respondent

RUSSELL MCGHIE
One Hundred and Thirty-Second Respondent

JOSEPH MCGRANE
One Hundred and Thirty-Third Respondent

ALASTAIR MCGUIRE
One Hundred and Thirty-Fourth Respondent

ALAN MCKENZIE
One Hundred and Thirty-Fifth Respondent

DEAN MEDLAND
One Hundred and Thirty-Seventh Respondent

BRAD MILLER
One Hundred and Thirty-Eighth Respondent

ROBERT MITCHELL
One Hundred and Fourtieth Respondent

PASKO MITRESKI
One Hundred and Forty-First Respondent

CHRISTOPHER MOORE
One Hundred and Forty-Third Respondent

LEONARD MUDRI
One Hundred and Forty-Fourth Respondent

DARREN NEWBY
One Hundred and Forty-Sixth Respondent

JAMIE NICOLAOU
One Hundred and Forty-Seventh Respondent

JAMES ODIAM
One Hundred and Forty-Eighth Respondent

BRIAN OTTAWAY
One Hundred and Fifty-First Respondent

MANDY-LEE PALMER
One Hundred and Fifty-Second Respondent

KEN PAYNE
One Hundred and Fifty-Fifth Respondent

LOUISE PFITZNER
One Hundred and Fifty-Eighth Respondent

RICHARD PHILLIPS
One Hundred and Fifty-Ninth Respondent

SHEREE PIKE
One Hundred and Sixtieth Respondent

JOE PIZZO
One Hundred and Sixth-Second Respondent

JOHN PRATT
One Hundred and Sixty-Third Respondent

DAVID ROSSITER-MCLAREN
One Hundred and Seventieth Respondent

PHILLIP ROWELL
One Hundred and Seventy-First Respondent

TOM SABINE
One Hundred and Seventy-Third Respondent

MICHAEL SANDERS
One Hundred and Seventy-Fifth Respondent

ANTON SAXER
One Hundred and Seventy-Seventh Respondent

KEITH SHIELD
One Hundred and Eighty-First Respondent

DALE SHIRTLIFF
One Hundred and Eighty-Second Respondent

DUSKO SOBOT
One Hundred and Eighty-Fifth Respondent

GRAEME SOWDEN
One Hundred and Eighty-Seventh Respondent

BRAD SPARK
One Hundred and Eighty-Eighth Respondent

JUSTIN STUURSTRAAT
One Hundred and Ninety-Second Respondent

WAYNE SUTHERLAND
One Hundred and Ninety-Third Respondent

ALLAN TAMAPUA
One Hundred and Ninety-Fourth Respondent

KEN THACH
One Hundred and Ninety-Fifth Respondent

MICHAEL TICEHURST
One Hundred and Ninety-Sixth Respondent

NEIL TOLLISON
One Hundred and Ninety-Seventh Respondent

BRYAN TONKIN
One Hundred and Ninety-Eighth Respondent

JOHN TUIVASA
Two Hundredth Respondent

GREG UCHWAL
Two Hundred and First Respondent

PETER VARIAKOJIS
Two Hundred and Second Respondent

MAREE WAINMAN
Two Hundred and Third Respondent

MITCHELL WEIR
Two Hundred and Fourth Respondent

MICHAEL WRIGHT
Two Hundred and Sixth Respondent

LESLEY YOUNG
Two Hundred and Eighth Respondent

PERO ZUVELA
Two Hundred and Ninth Respondent

CONSTRUCTION FORESTRY MINING AND ENERGY UNION
Two Hundred and Eighteenth Respondent

BRADLEY UPTON
Two Hundred and Nineteenth Respondent

AUTOMOTIVE FOOD METALS ENGINEERING PRINTING AND KINDRED INDUSTRIES UNION
Two Hundred and Twentieth Respondent

JOHN WINDUS
Two Hundred and Twenty-First Respondent