Australian Competition and Consumer Commission v The Construction, Forestry, Mining and Energy Union (No 2)

[2017] FCA 1191

FEDERAL COURT OF AUSTRALIA

Australian Competition and Consumer Commission v The Construction, Forestry, Mining and Energy Union (No 2) [2017] FCA 1191

File number:

VID 698 of 2014

Judge:

MIDDLETON J

Date of judgment:

5 October 2017

Catchwords:

COMPETITION – secondary boycott – attempted secondary boycott – meaning of conduct “in concert” – meaning of “substantial loss or damage” – rebuttable presumption in s 45DC of the Competition and Consumer Act 2010 (Cth) – whether an instruction was given – whether an instruction was implemented

EVIDENCE – admissibility of representations made in furtherance of a common purpose under s 87(1)(c) of the Evidence Act 1995 (Cth) – reliance on coincidence reasoning to prove a fact – application of s 98 of the Evidence Act 1995 (Cth) – inferences where a party fails to call a witness

Legislation:

Competition and Consumer Act 2010 (Cth)

Corporations Act 2001 (Cth)

Evidence Act 1995 (Cth)

Federal Court of Australia Act 1976 (Cth)

Cases cited:

Australian Competition and Consumer Commission v Air New Zealand Limited (No 1) (2012) 207 FCR 448

Ahern v R (1988) 165 CLR 87

Aristocrat Technologies Australia Pty Ltd v Global Gaming Supplies Pty Ltd (2009) FCA 1495

ASX Operations Pty Ltd v Pont Data Australia Pty Ltd (No 1) (1990) 97 ALR 513

Australasian Meat Industry Employees Union v Meat and Allied Trades Federation of Australia (1991) 32 FCR 318

Australian Competition and Consumer Commission v The Construction, Forestry, Mining and Energy Union [2016] FCA 504

Barneys Blu-Crete Pty Ltd v Australian Workers’ Union [1979] ATPR 40-139

Briginshaw v Briginshaw (1938) 60 CLR 336

Building Workers’ Industrial Union Of Australia And Others V Odco Pty Ltd (1991) 29 FCR 104

Hughes v The Queen [2017] HCA 20

James Hardie Industries NV v Australian Securities and Investments Commission (2010) 274 ALR 85

Jewel Food Stores Pty Ltd v Amalgamated Milk Vendors Assn Inc (1989) 24 FCR 127

Jones v Dunkel (1959) 101 CLR 298

Leon Laidely Pty Ltd v Transport Workers Union of Australia (1980) 28 ALR 129

News Ltd v South Sydney District Rugby League Football Club Ltd (2003) 215 CLR 563

Perpetual Custodians Ltd v IOOF Investment Management Ltd [2013] NSWSC 231

R v Associated Northern Collieries (1911) 14 CLR 387

Tillmanns Butcheries Pty Ltd v Australasian Meat Industry Employees’ Union (1979) 27 ALR 367

TPC v TNT Management Pty Ltd (1985) 6 FCR 1

Trade Practices Commission v Mobil Oil Australia Ltd (1984) 3 FCR 168

Trade Practices Commission v Parkfield Operations Pty Ltd (1985) 7 FCR 534

Trade Practices Commission v Tubemakers of Australia Ltd (1983) 47 ALR 719

Willis v The Commonwealth (1946) 73 CLR 105

Date of hearing:

3-6 October 2016, 10-12 October 2016 and 25-26 October 2016

Registry:

Victoria

Division:

General Division

National Practice Area:

Commercial and Corporations

Sub-area:

Economic Regulator, Competition and Access

Category:

Catchwords

Number of paragraphs:

441

Counsel for the Applicant:

Mr P D Crutchfield QC with Mr R I Gipp and Mr N P De Young

Solicitor for the Applicant:

DLA Piper Australia

Counsel for the Respondents:

Ms R M Doyle SC with Mr J R Gurr

Solicitor for the Respondents:

Slater and Gordon Lawyers

REASONS FOR JUDGMENT

VID 698 of 2014

BETWEEN:

AUSTRALIAN COMPETITION AND CONSUMER COMMISSION

Applicant

AND:

THE CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION

First Respondent

JOHN SETKA

Second Respondent

SHAUN MICHAEL REARDON

Third Respondent

MIDDLETON J:

INTRODUCTION	[1]
Background	[3]
Allegations against the CFMEU	[5]
The conduct allegations	[8]
The attempt allegations	[15]
Witnesses	[19]
LEGISLATION AND CASE LAW	[33]
Contraventions	[33]
A “person”	[35]
“Engages in conduct”	[40]
Acting “in concert”	[42]
“Hinders or prevents”	[53]
The “purpose” of causing “substantial loss or damage”	[56]
Conduct that “would have or be likely to have” the effect of causing substantial loss or damage	[58]
Attempted contraventions	[68]
CONSIDERATION	[72]
Evidentiary objections	[73]
Evidence of ban-related representations of Mr Pettifer	[96]
Evidence of ban-related representations of Mr Vlahogiannis	[103]
Evidence of ban-related representations of Mr Bellofiore	[107]
Trades Hall Meetings	[123]
Conduct allegations	[156]
Deer Park	[168]
The ACCC’s case	[169]
The CFMEU’s case	[174]
CONSIDERATION	[177]
Hawthorn	[185]
The ACCC’s case	[186]
The CFMEU’s case	[191]
CONSIDERATION	[196]
Lilydale	[208]
The ACCC’s case	[209]
The CFMEU’s case	[212]
CONSIDERATION	[213]
Melbourne City	[225]
The ACCC’s case	[226]
The CFMEU’s case	[232]
CONSIDERATION	[237]
Port Melbourne	[248]
The ACCC’s case	[249]
The CFMEU’s case	[252]
CONSIDERATION	[256]
Richmond	[269]
The ACCC’s case	[270]
The CFMEU’s case	[277]
CONSIDERATION	[281]
Tarneit	[293]
The ACCC’s case	[294]
The CFMEU’s case	[302]
CONSIDERATION	[306]
Werribee	[317]
The ACCC’s case	[318]
The CFMEU’s case	[324]
CONSIDERATION	[329]
Attempt allegations	[364]
Notting Hill	[364]
The ACCC’s case	[365]
The CFMEU’s case	[367]
CONSIDERATION	[370]
Officer	[383]
The ACCC’s case	[384]
The CFMEU’s case	[386]
CONSIDERATION	[388]
Williams Landing	[410]
The ACCC’s case	[411]
The CFMEU’s case	[417]
CONSIDERATION	[421]
The omnibus claim (Metropolitan Melbourne Conduct)	[434]
CONCLUSION	[439]

INTRODUCTION

1. In this proceeding, the applicant (‘ACCC’) seeks declarations, injunctive relief, pecuniary penalties, publication and probation orders, and costs against the first respondent (the ‘CFMEU’). This relief is sought under ss 76, 80 and 86C of the Competition and Consumer Act 2010 (Cth) (‘CCA’) and s 21 and s 43 of the Federal Court of Australia Act 1976 (Cth) (‘FCAA’).  The ACCC also originally sought relief against the second and third respondents.  However, for reasons that are apparent below, there is no need to set out those allegations in detail.

2. In summary, the ACCC primarily alleges that the CFMEU contravened s 45D(1) of the CCA by engaging in particular conduct in concert with union delegates (‘shop stewards’) appointed to each of 11 construction sites in Melbourne.  It is alleged that the CFMEU gave instructions to shop stewards (and one CFMEU Organiser) not to allow Boral Resources (Vic) Pty Ltd (‘Boral Resources’) and Alsafe Premix Concrete Pty Ltd (‘Alsafe’) (each or collectively, ‘Boral’) to supply concrete to construction sites (the ‘Ban Against Boral’).  It is further alleged that certain shop stewards implemented the Ban Against Boral at those sites (‘s 45D conduct’).

   Background

3. From mid-August 2012, the CFMEU and Grocon Pty Ltd (‘Grocon’) were involved in a dispute regarding Grocon’s refusal to accept CFMEU shop stewards as workers’ representatives on Grocon sites.  This ongoing dispute led to Grocon and Boral (one of Grocon’s concrete suppliers at the time) initiating separate proceedings in the Supreme Court of Victoria.

4. On 20 November 2014, this proceeding in the Federal Court was commenced by the ACCC against the CFMEU and the second and third respondents.  On 3 February 2016, the Court made orders by consent to stay the proceedings against the second and third respondents.  On 11 May 2016, the Court delivered judgment rejecting a similar stay application by the CFMEU and a subsequent appeal from this decision was dismissed: see Australian Competition and Consumer Commission v The Construction, Forestry, Mining and Energy Union [2016] FCA 504. As a result, when the trial commenced on 3 October 2016, the Court only heard the ACCC’s allegations in relation to the CFMEU. At the conclusion of the trial, the Court dismissed the proceedings against the second and third respondents without any consideration of the merits of the applications against those respondents.

   Allegations against the CFMEU

5. In its amended statement of claim, the ACCC alleged that the CFMEU had committed 13 contraventions of s 45D(1) of the CCA. Section 45D(1) of the CCA contains the following text:

   45D Secondary boycotts for the purpose of causing substantial loss or damage

   (1) In the circumstances specified in subsection (3) or (4), a person must not, in concert with a second person, engage in conduct:

   (a) that hinders or prevents:

   (i) a third person supplying goods or services to a fourth person (who is not an employer of the first person or the second person); or

   (ii) a third person acquiring goods or services from a fourth person (who is not an employer of the first person or the second person); and

   (b) that is engaged in for the purpose, and would have or be likely to have the effect, of causing substantial loss or damage to the business of the fourth person.

6. Of these 13 alleged contraventions, 12 were site-specific, meaning they referred to 12 separate instances of conduct at 12 different construction sites in Victoria. However, the ACCC ultimately abandoned one of these claims, leaving 11 such contraventions being pressed. Further and alternatively, the ACCC pleaded an “omnibus” claim, namely that the conduct at each of those 11 sites, when considered collectively, constituted a single contravention of s 45D(1) of the CCA.

7. Putting the omnibus claim to one side, it is useful to separate the site-specific contraventions into two categories:

   (1)Eight alleged contraventions relating to conduct of the CFMEU and a relevant shop steward (and in one case, the conduct of a CFMEU Organiser) (the ‘conduct allegations’); and

   (2)Three alleged contraventions relating to attempted conduct of the CFMEU and a relevant shop steward (the ‘attempt allegations’).

   The conduct allegations

8. The conduct allegations related to the following construction sites:

   ·Deer Park;

   ·Hawthorn;

   ·Lilydale;

   ·Melbourne City;

   ·Port Melbourne;

   ·Richmond;

   ·Tarneit; and

   ·Werribee.

9. Each conduct allegation follows a similar pattern: the CFMEU is alleged to have informed the relevant shop steward that there was a ban against the use of Boral concrete on that particular site.  The shop steward is then alleged to have acted in concert with the CFMEU by implementing the ban on the site, thus hindering or preventing Boral from supplying concrete to that site.  It is claimed that this conduct was engaged in for the (or a) purpose of causing substantial loss or damage to the business of Boral, and that the conduct would have, or was likely to have, the effect of causing substantial loss or damage to the business of Boral.

10. For example, the Deer Park conduct allegation was pleaded as follows (particulars have been omitted):

    72.      The Deer Park Site relevantly involved:

    72.1FDC Construction and Fitout Pty Ltd I 120 295 034 (FDC) as the head contractor;

    72.2Anglo Italian as a subcontractor engaged to supply and place concrete;

    72.3     Newitt acting as a site supervisor;

    72.4     Travers acting as the Shop Steward onsite.

    73.      At the Deer Park Site around the time of the February Trades Hall Meeting:

    73.1     construction works were underway; and

    73.2     Boral Resources was supplying concrete to Anglo Italian.

    74.In or about mid-February 2013 the CFMEU informed Shop Steward Travers of the Ban Against Boral.

    75.      On or about 14 February 2013:

    75.1     Shop Steward Travers and Newitt were at the Deer Park Site;

    75.2     Shop Steward Travers said to Newitt words to the effect:

    75.2.1  the CFMEU was having a dispute with Boral; and

    75.2.2the CFMEU would prefer Anglo Italian acquire concrete from a supplier other than Boral.

    76.      In or about April 2013:

    76.1     Shop Steward Travers and Newitt were at the Deer Park Site;

    76.2     Shop Steward Travers said to Newitt words to the effect:

    76.2.1 Anglo Italian “shouldn’t have been using Boral”; and

    76.2.2 the CFMEU “was still not happy” for Anglo Italian to use Boral.

    77.Shop Steward Travers undertook the actions described in paragraphs 75.2 and 76.2 (Deer Park Implementation) to implement the Ban Against Boral.

    78.      In:

    78.1 the CFMEU introducing and/or communicating the Ban Against Boral in the circumstances referred to in paragraphs 59, 59C and 60; and

    78.2 Shop Steward Travers undertaking the Deer Park Implementation,

    the CFMEU acted in concert with Shop Steward Travers (collectively, the Deer Park Conduct).

    79.The Deer Park Conduct hindered or prevented Anglo Italian from acquiring concrete from Boral Resources.

    Contravention arising from Deer Park Conduct – Secondary boycott

    80.Each of the CFMEU and Shop Steward Travers engaged in the Deer Park Conduct for the purpose (or alternatively, for purposes that included the purpose) of causing substantial loss or damage to the business of Boral.

    81.The Deer Park Conduct would have, or was likely to have, had the effect of causing substantial loss or damage to the business of Boral.

    82.By reason of the matters referred to in paragraphs 78 to 81, the CFMEU contravened section 45D(1) of the Act.

11. Paragraphs 59, 59C and 60 of the pleading provide as follows (particulars have been omitted):

    59.      During the February Trades Hall Meeting:

    59.1Setka said words to the effect that Boral was a “Grocon friendly supplier”; and

    59.2the CFMEU gave an instruction to Shop Stewards and CFMEU organisers to not allow Boral to supply concrete to commercial construction sites in Metropolitan Melbourne (Ban Against Boral).

    …

    59C.During the March Trades Hall Meeting, the CFMEU communicated the existence of the Ban Against Boral to Shop Stewards and CFMEU organisers.

    60.At all material times following the February Trades Hall Meeting and the March Trades Hall Meeting:

    60.1the CFMEU intended and expected that Shop Stewards and CFMEU organisers should implement the Ban Against Boral until further notice; and

    60.2Shop Stewards and CFMEU organisers understood that they should implement the Ban Against Boral until further notice.

12. Throughout the pleading, reference is made to the Ban Against Boral as defined in paragraph 59.2 of the pleading.

13. The other conduct allegations are similarly put.  The only notable difference is for the Werribee and Tarneit sites, where a CFMEU Organiser (Mr Drew MacDonald) was also alleged to have been involved in the relevant conduct in addition to the relevant shop steward.

14. The conduct allegation in relation to the Werribee site was pleaded as follows (particulars have been omitted):

    Werribee Conduct

    192.     The Werribee Site relevantly involved:

    192.1   construction works which commenced in January 2014;

    192.2Probuild Constructions (Services) Pty Ltd I 054 636 225 (Probuild) as the head contractor;

    192.3Straightline Excavations Pty Ltd I 162 839 554 (Straightline) as a subcontractor to Probuild to perform basement excavation and retention and footings works;

    192.4   Tarkan Gulenc (Gulenc) as a director of Straightline;

    192.5BRC as a subcontractor to Straightline engaged to perform piling works;

    192.6Boam as a director of BRC;

    192.7Harisiou acting as the Shop Steward onsite;

    192.8MacDonald acting as the CFMEU organiser responsible for the geographic area that included the Werribee Site.

    193.In about March 2013 the CFMEU informed Shop Steward Harisiou of the Ban Against Boral.

    194.In about March 2013 the CFMEU informed CFMEU organiser MacDonald of the Ban Against Boral.

    195.In about March 2014 BRC decided to acquire concrete for the Werribee Site from Boral Resources.

    196.On or about 16 or 17 April 2014:

    196.1Shop Steward Harisiou and Boam were at the Werribee Site;

    196.2Shop Steward Harisiou asked Boam who he was using for concrete;

    196.3Boam told Shop Steward Harisiou he was using Boral;

    196.4Shop Steward Harisiou told Boam that they would need to discuss it further but would need to wait for MacDonald; and

    196.5Shop Steward Harisiou asked Boam to attend a meeting later that day or the following day.

    197.On or about 16 or 17 April 2014:

    197.1Shop Steward Harisiou, CFMEU organiser MacDonald, Boam and Gulenc attended a meeting at the Werribee Site;

    197.2Shop Steward Harisiou and CFMEU organiser MacDonald told Boam and Gulenc that they had safety concerns regarding Boral’s concrete trucks;

    197.3Shop Steward Harisiou and CFMEU organiser MacDonald told Boam and Gulenc that they were concerned that Boral’s concrete might cause dermatitis;

    197.4the concern referred to in the immediately preceding sub-paragraph was not genuinely held or was readily capable of being prevented by the wearing of gloves; and

    197.5Shop Steward Harisiou told Boam and Gulenc that if BRC used Boral there were going to be roadworthy checks on the concrete trucks.

    198.Shop Steward Harisiou undertook the actions described in paragraphs 196 and 197 (Werribee Shop Steward Implementation) to implement the Ban Against Boral.

    199.CFMEU organiser MacDonald undertook the action described in paragraph 197 (Werribee Organiser Implementation) to implement the Ban Against Boral.

    200.In:

    200.1the CFMEU introducing and/or communicating the Ban Against Boral in the circumstances referred to in paragraphs 59, 59C and 60 above;

    200.2the CFMEU providing the Checklist Instructions in the circumstances referred to in paragraph 62;

    200.3Shop Steward Harisiou undertaking the Werribee Shop Steward Implementation; and/or

    200.4CFMEU organiser MacDonald undertaking the Werribee Organiser Implementation, the following persons acted in concert with each other:

    200.5the CFMEU with Shop Steward Harisiou; further or alternatively

    200.6CFMEU organiser MacDonald with Shop Steward Harisiou; and

    200.7by reason of the matters referred to in paragraph 200.6, the CFMEU with CFMEU organiser MacDonald and Shop Steward Harisiou,

    (collectively, the Werribee Conduct).

    201.The Werribee Conduct hindered or prevented BRC from acquiring concrete from Boral Resources.

    Contravention arising from the Werribee Conduct – Secondary boycott

    202.Each of the CFMEU, CFMEU organiser MacDonald and Shop Steward Harisiou engaged in the Werribee Conduct for the purpose (or alternatively, for purposes that included the purpose) of causing substantial loss or damage to the business of Boral.

    203.The Werribee Conduct would have, or was likely to have, had the effect of causing substantial loss or damage to the business of Boral.

    204.By reason of the matters referred to in paragraphs 200 to 203, the CFMEU contravened section 45D(1) of the Act.

    The attempt allegations

15. The attempt allegations related to the following construction sites:

    ·Notting Hill;

    ·Officer; and

    ·Williams Landing.

16. The attempt allegations are of essentially the same character as the conduct allegations outlined above, save for that fact that the attempted implementation of the ban was unsuccessful in that Boral kept supplying concrete. 

17. The Notting Hill attempt allegation (as an example) was pleaded as follows (particulars have been omitted):

    149.     The Notting Hill Site relevantly involved:

    149.1 Hansen Yuncken Pty Ltd I 063 384 056 (Hansen Yuncken) as the head contractor;

    149.2 Oceania as a subcontractor engaged to conduct excavation works and construct the foundations;

    149.3   Humphrey acting as production manager onsite;

    149.4   Kemp acting as the Shop Steward onsite.

    150.At the Notting Hill Site around the time of the February Trades Hall Meeting:

    150.1   constructions works were underway; and

    150.2   Boral Resources was supplying concrete to Oceania.

    151.In or about March 2013 the CFMEU informed Shop Steward Kemp of the Ban Against Boral.

    152.     On or about 14 March 2013:

    152.1 the only concrete Oceania still needed to acquire for the Notting Hill Site was concrete to pour stairs that was due to take place the following day;

    152.2   Shop Steward Kemp and Humphrey were at the Notting Hill Site;

    152.3 Shop Steward Kemp approached Humphrey and told him words to the effect that “you won’t be using Boral here”.

    153.Shop Steward Kemp undertook the action described in the immediately preceding paragraph (Notting Hill Implementation) to implement the Ban Against Boral.

    154.     In:

    154.1 the CFMEU introducing and/or communicating the Ban Against Boral in the circumstances referred to in paragraphs 59, 59c and 60 above;

    154.2 the CFMEU providing the Checklist Instructions in the circumstances referred to in paragraph 62;

    154.3 Shop Steward Kemp undertaking the Notting Hill Implementation,

    the CFMEU acted in concert with Shop Steward Kemp (collectively, the Notting Hill Conduct).

    155.Following the Notting Hill Conduct, Oceania continued acquiring concrete from Boral.

    Contravention arising from the Notting Hill Conduct – Attempted secondary boycott

    156.The intention of each of the CFMEU and Shop Steward Kemp in engaging in the Notting Hill Conduct included hindering or preventing Oceania from acquiring concrete from Boral.

    157.Each of the CFMEU and Shop Steward Kemp engaged in the Notting Hill Conduct for the purpose (or alternatively, for purposes that included the purpose) of causing substantial loss or damage to the business of Boral.

    158.The Notting Hill Conduct would have, or was likely to have, had the effect of causing substantial loss or damage to the business of Boral.

    159.By reason of the matters referred to in paragraphs 154 to 158 the CFMEU attempted, within the meaning of sections 76(1) and 80(1), to contravene section 45D(1) of the Act.

1. As indicated in the pleading, to make out these attempt allegations, the ACCC relies on s 76(1) and s 80(1) of the CCA. These provisions provide that the Court may order a pecuniary penalty or injunction (respectively) if it is satisfied that a person attempted to contravene a provision such as s 45D(1).

   Witnesses

2. A total of 23 witnesses were called, and all were subpoenaed to appear.  Of the 23 witnesses, 18 were called by the ACCC, and 5 were called by the CFMEU.  The witnesses for each site are set out below (those called by the CFMEU are designated in italics):

Site:	Shop steward called in relation to that site:	Other witnesses called in relation to that site:
Deer Park	Rodney Travers	Michael Newitt, Brett Young
Officer	Salvador Carrillo	Mark Milano, Linus Humphrey
Port Melbourne	David Lythgo	Fabrizio Ubaldi
Tarneit	Domenic Mazzeo	Damien Milano, Sean McEvoy, Mark Milano
Melbourne City	Darren Dudley
Hawthorn	Peter Thomas	Santi Mangano
Notting Hill	Barry Kemp	Mark Milano, Linus Humphrey
Lilydale	Mark Milano, Linus Humphrey
Richmond	Robert Scott	Mark Milano, Phillip Petersen, Linus Humphrey
Williams Landing	Mark Milano, Damien Milano
Werribee	Andrew Harisiou	Craig Boam, Tarken Gulenc, Fabrizio Ubaldi

1. The ACCC also called Mr Paul Dalton of Boral and Mr Brian McAdam of Grocon to give evidence in relation to the operations of Boral and Grocon respectively.  Mr Steven Richardson was also called to give evidence in relation to the Flinders Street site (although this alleged contravention was abandoned by the ACCC during the trial).

2. Furthermore, it is important to note that although there was a shop steward operating at each of the Melbourne City, Lilydale and Williams Landing sites at all relevant times, neither party called those shop stewards to give evidence in this proceeding (those shop stewards were Messrs Lou Vlahogiannis, Gerald Pettifer and Guy Bellofiore respectively). 

3. It is convenient here to mention the principle enunciated in Jones v Dunkel (1959) 101 CLR 298 (‘Jones v Dunkel’), relied upon by both parties.

4. Jones v Dunkel provides for the prospect that inferences may be drawn where a party does not call a witness whose evidence may assist in the resolution of a factual dispute. In that case, Kitto J observed (at 308):

   …any inference favourable to the plaintiff for which there was ground in the evidence might be more confidently drawn when a person presumably able to put the true complexion on the facts relied on as the ground for the inference has not been called as a witness by the defendant and the evidence provides no sufficient explanation of his absence.

5. In addition, the authorities establish that a court may infer that the evidence of the absence witness would not have assisted the party that failed to call that witness.

6. I would not have expected the ACCC to have called a shop steward, although in some cases it did so.  It was likely such a witness would be favourable to the CFMEU and not favourable to the ACCC.  I would have expected the CFMEU to call a relevant witness to explain (importantly) the minutes of the meetings referred to in the pleading if it was sought to explain the meetings, contradict the minutes, or put them in context.  The CFMEU did not call a witness to undertake this task, and so the interpretation of the minutes is to be undertaken by looking at their text and context.  I do not read the minutes other than in accordance with ordinary principles relating to the interpretation of written documents.  However, I do proceed on the basis that unless evidence has been called to the contrary, the minutes are to be understood by interpreting in the way I have suggested – by looking at the text and context.

7. However, it is important to observe that the rule in Jones v Dunkel does not permit the filling of gaps in the evidence, or to convert conjecture into inference: see Jones v Dunkel at p 308 (per Kitto J) and 320-1 (per Windeyer J).

8. As a general matter, the ACCC submitted that all the evidence needed to be considered to put in context the evidence of the various statements made by relevant shop stewards and CFMEU officials at the relevant meetings and at the various sites.  Significantly, the meetings and statements relied upon by the ACCC occurred at a time when the CFMEU was involved in a serious and on-going dispute with Grocon, with Boral supplying concrete to Grocon, and Boral considered by the CFMEU to be “Grocon friendly”.  Therefore, the ACCC stressed the importance of the Court considering all the surrounding circumstances, including the fact of the on-going dispute, the contemporaneous shop stewards’ meetings and the statements made on site by the various shop stewards. 

9. So much is uncontentious.  However, a number of witnesses had difficulty recollecting details of the conduct and events in question, and their ability to do so was the subject of testing under cross-examination.  The implementation of the Ban Against Boral is alleged to have occurred between February 2013 and mid 2014.  It is also to be recalled that the shop stewards had different employers and worked at different construction sites.  There is no direct evidence that any of the shop stewards discussed amongst themselves the Ban Against Boral.  The relevant events and statements about which evidence was adduced occurred some three years ago, and not all events and statements occurred at formal or structured meetings.  These circumstances obviously caused some witnesses to have difficulty in remembering details of conversations and the timing of such conversations. 

10. The Court has had the advantage of hearing from a number of witnesses, including a number of shop stewards.  The ACCC, in calling various shop stewards, despite having the benefit of s 155 examinations in some cases, needed to examine in chief (unless given leave to cross-examine) potentially unfavourable witnesses.  I have been mindful of that reality.  In addition, statements made by the shop stewards in the witness box need to be tested closely and received with the greatest caution: see eg ASX Operations Pty Ltd v Pont Data Australia Pty Ltd (No 1) (1990) 97 ALR 513, 534 per Lockhart, Gummow and von Doussa JJ.

11. However, this testing should not be translated or treated as putting an added onus or burden on a particular witness.  All the evidence needs to be considered, including the contemporary documentation and conduct relating to all the participants. 

12. I have generally accepted the evidence of the shop stewards as to the events that occurred on site, in particular in relation to the carrying out of safety checks.  The fact remains that no Boral trucks were actually sent away from a site by reason of any conduct of the CFMEU, Mr MacDonald or shop stewards.  The real harm to Boral was the threat that Boral trucks would be hindered or delayed in the delivery of concrete.  This threat was made known to certain customers, some of whom changed their supplier of concrete away from Boral. 

13. I make one other observation relating to the evidence. This proceeding is a penalty proceeding. In light of the application of s 140 of the Evidence Act 1995 (Cth) (‘the Evidence Act’), the principles contained in Briginshaw v Briginshaw (1938) 60 CLR 336 should be adopted by the Court in assessing the evidence individually and collectively. This is particularly pertinent when assessing the import of statements made on the various construction sites. The Court should not discount the evidence of a witness just because they cannot recall the exact words used in a particular conversation. However, to the extent a witness has only a general impression of what was said, the Court should recall that human memory is fallible, and a general impression may arise from a number of sub-conscious reasons. The witness, by the time they are giving evidence, in giving such generalised evidence, may not be giving reliable evidence that reflects a previous statement made or the exact context of a particular earlier conversation.

    LEGISLATION AND CASE LAW

    Contraventions

14. As indicated above, the central legislative provision in this proceeding is s 45D(1) of the CCA.

15. Therefore, a finding of a breach of s 45D (relevantly) requires the following elements to be made out:

    (1)a “person”;

    (2)“engages in conduct”;

    (3)“in concert” with a second person;

    (4)“hinders or prevents” a third person supplying or acquiring goods or services to/from a fourth person;

    (5)where that conduct is engaged in for the “purpose” of causing substantial loss or damage to the business of the fourth person; and

    (6)where that conduct “would have or be likely to have the effect” of causing substantial loss or damage to the business of the fourth person.

    A “person”

16. It is accepted that the term “person” in s 45D(1) can include a trade union such as the CFMEU: Leon Laidely Pty Ltd v Transport Workers Union of Australia (1980) 28 ALR 129, 138 (Lockhart J).

17. Section 45DC(1) of the CCA (entitled “Involvement and liability of employee organisations”) provides:

    If 2 or more persons (the participants), each of whom is a member or officer of the same organisation of employees, engage in conduct in concert with one another, whether or not the conduct is also engaged in in concert with another person, then, unless the organisation proves otherwise, the organisation is taken for the purposes of sections 45D, 45DA and 45DB:

    (a)      to engage in that conduct in concert with the participants; and

    (b)to have engaged in that conduct for the purposes for which the participants engaged in it.

18. The effect of s 45DC is to create a rebuttable presumption that an organisation of employees has engaged in conduct in contravention of s 45D if two or more participants in the conduct are members or officers of the organisation.

19. In this context, it is to be noted that:

    (1)section 4(1) of the CCA provides that an “organisation of employees” means an organisation that exists or is carried on for the purpose, or for purposes that include the purpose, of furthering the interests of members in relation to their employment;

    (2)the second and third respondents were members and officers of the CFMEU and that the CFMEU Organiser Mr MacDonald was an employee and member of the CFMEU at all material times, and that the relevant shop stewards were members of the CFMEU at all material times.

20. In looking at the CFMEU and its conduct, it is necessary to assess the minds of the relevant persons who directed the relevant conduct.  In this proceeding, it was the executives of the CFMEU involved in the Ban Against Boral, which included the second and third respondents and Mr MacDonald.

    “Engages in conduct”

21. Section 4(2)(a) of the CCA states that a reference to engaging in conduct shall be read as a reference to

    …doing or refusing to do an act, including the making of, or the giving effect to a provision of, a contract or arrangement, the arriving at, or giving effect to a provision of, an understanding or the requiring of or giving of, a covenant;…

22. It is to be noted that the definition of engaging in conduct is not restricted to the making of, or to the giving effect to, an arrangement or understanding.

    Acting “in concert”

23. Speaking generally, to act “in concert” normally means to act in a coordinated or organised way. 

24. The ACCC relied upon the definition of “in concert” espoused in Tillmanns Butcheries Pty Ltd v Australasian Meat Industry Employees’ Union (1979) 27 ALR 367 (‘Tillmanns’) by Bowen CJ at 373:

    Acting in concert involves knowing conduct, the result of communication between the parties and not simply simultaneous actions occurring spontaneously. 

25. The ACCC further contended that it was not necessary to establish a “common purpose” for persons to be acting “in concert”.  There is a distinction between “purpose” and “motive”.  The “purpose” refers to the effect sought to be achieved by the conduct, not the motive of those involved; the “motive” is the reason for seeking an outcome, rather than the outcome sought to be achieved: see News Ltd v South Sydney District Rugby League Football Club Ltd (2003) 215 CLR 563, 573 (Gleeson CJ).

26. The ACCC relied upon Jewel Food Stores Pty Ltd v Amalgamated Milk Vendors Assn Inc (1989) 24 FCR 127, 132-3 (Sheppard and Wilcox JJ) in relation to “common purpose”. In that case, their Honours rejected the proposition that a “common purpose” was necessary for persons to be acting “in concert” (in the context of the precursor to s 45D(1) of the CCA). Their Honours considered that

    [p]urpose does not at that stage come into the matter.  It does become critical eventually because the paragraph will not apply unless the conduct in which the respondents have engaged was engaged in for the purpose of causing substantial loss and damage to the appellant’s business.  But that is a separate question to which the later submissions made by counsel for the respondents are directed.

27. However, the CFMEU pointed to subsequent authorities that did require a common purpose to be established before persons could be said to be acting “in concert”.  For example, in Australasian Meat Industry Employees Union v Meat and Allied Trades Federation of Australia (1991) 32 FCR 318 (‘AMIEU’), French J (as he then was) held at 334 (in relation to s 45D):

    The phrase “in concert” has been construed variously in the cases as involving knowing conduct, the result of communication between the parties and not simply simultaneous actions occurring spontaneously.  It has been said to involve contemporaneity and a community of purpose which requires a consensual element: see Tillmans Butcheries Pty Ltd v Australasian Meat Industry Employees’ Union (1979) 42 FLR 331 at 337; Australasian Meat Industry Employees’ Union v Mudginberri Station Pty Ltd (1985) 9 FCR 425 at 433. Whatever the full scope of the term it does not apply to groups of employees of different employers who, as the result of requests by a common union, engage in similar conduct for their own respective purposes in response to similar issues of remuneration, conditions of employment, hours or work or working conditions.

    (Emphasis added).

28. The phrase “in concert” has also been considered in other contexts.  In relation to s 12(2) and s 15(1) of the Corporations Act 2001 (Cth) (‘Corporations Act’), Stevenson J (the trial judge) in Perpetual Custodians Ltd v IOOF Investment Management Ltd [2013] NSWSC 231 (‘Perpetual Custodians’) at [102] held that, for two parties to be acting “in concert”:

    (1)there must at least be an understanding between them as to their common purpose of object and a mere coincidence of separate acts is insufficient;

    (2)there must be some knowing conduct the result of communications between parties and not merely simultaneous actions occurring contemporaneously;

    (3)there must be an understanding between the parties as to a common purpose of object;

    (4)there must be contemporaneity and community of purpose;

    (5)a concurrence of views about the merits of a particular resolution proposed by another person is not sufficient; and

    (6)the understanding between the parties as to the common purpose or object must be consensual and there must be some adoption of it. 

29. The New South Wales Court of Appeal in Perpetual Custodians did not disturb Justice Stevenson’s analysis. 

30. There is also authority for the proposition that degrees of time and space are important in determining whether persons are acting “in concert”.  In AMIEU, Gray J stated that:

    Greater difficulty is experienced when the separate acts are performed at separate locations and at different times.  Difficult question arise as to the point in the causative chain of events at which a person whose act has contributed to some extent will be treated as not having acted in concert with those whose acts were performed more closely in time and space to that event.

31. In the context of union advocacy, Gray J continued:

    The difficulties in the concept of “in concert” are acute when the acts of one person are confined to advising, requesting, encouraging or inciting the other, who responds by performing the desired act.  In the present case, the learned trial judge found that AMIEU by its officers advocated that stoppages of work should occur on the days on which they occurred, and that members who voted in favour of those stoppages at the preceding meetings were aware of that advocacy.  In my view, such a situation will not ordinarily give rise to the conclusion that the trade union … and the employees who are its members … have acted in concert if the employees cease work.

32. Relevantly, Gray J noted that:

    The position of a trade union might be different if its rules empowered its governing committees or its officers to direct the taking of action, and obliged its members to comply with such directions.  In such a case, the giving of the direction and the compulsory observance of it would go to make up the end result.

33. In my view, there must be a common purpose, or community of purpose, for there to be an acting “in concert” in the application of s 45D(1) of the CCA. I adopt the approach taken by French J in AMIEU.  There needs to be a joint enterprise to be acting in concert – there cannot be such an enterprise unless the parties have a “community of purpose”.  The purpose here is that alleged by the ACCC, and the issue of different purposes mentioned by French J (as responding to different issues of remuneration, or conditions of employment) does not arise in the circumstances of this proceeding.  Whilst there were different employers and groups of employees, the case brought by the ACCC is site specific (putting aside the omnibus claim), and the purpose alleged (if proved) would be a ‘community of purpose’ to implement the Ban Against Boral.  I will return later to the issue of the nature of the communication made to the shop stewards by the CFMEU and whether it was a recommendation, request, advice or instruction. 

    “Hinders or prevents”

34. The phrase “hinders or prevents” was not particularly controversial as between the parties.  Importantly, in its closing submissions at paras 338-9, the CFMEU accepted the following:

    It is accepted that conduct, if it were proven to have occurred, in the nature of turning away Boral trucks from a concrete pour, or deliberately occupying so much time in undertaking a bogus safety check as to cause the concrete in an agitator to spoil would constitute conduct which prevents supply.

    It is also accepted that a clear statement that either of the above was going to occur in the future (ie that trucks “will be turned away” or that trucks will be subjected to a long, and deliberately slow – and fake – safety check such that their load would spoil) could constitute conduct capable of hindering or perhaps preventing supply.

35. In a practical sense for the purposes of this proceeding, this meant that the notion of “hinders or prevents” would turn on evidentiary considerations.

36. However, as the evidence unfolded, it became apparent (as I have indicated) that no Boral truck was actually turned away by the use of a bogus safety check.  The true complaint was that statements were made effectively threatening bogus safety checks.  It is this characterisation of the conduct the Court proceeds to consider, not the conduct of actually turning away Boral trucks.

    The “purpose” of causing “substantial loss or damage”

37. In the context of s 45D(1), the word “substantial” is used in the relative sense. Whether loss or damage will be “substantial” will depend upon the nature and scope of the relevant business. At the very least, the term means real or of substance and not insubstantial or nominal: Tillmanns at 382 (Deane J).

38. Furthermore, the purpose of causing substantial loss or damage need not be the only purpose if the conduct was engaged in for purposes which include that purpose.  Nor must it be a substantial purpose – it only needs to be a purpose: CCA s 45D(2). This is relevant as the CFMEU advanced a “positive safety case”, that the purpose for the impugned conduct was for the promotion of worker safety. In light of s 45D(2), even if I was satisfied of the safety case, if the ACCC was successful in persuading the Court that another purpose was to cause substantial loss and damage, this would be sufficient.

    Conduct that “would have or be likely to have” the effect of causing substantial loss or damage

1. The words “substantial loss and damage” have the same content as relating to purpose.  To elaborate further, it is not necessary to show that the loss or damage would be a “major blow” to Boral’s business: see Building Workers’ Industrial Union Of Australia And Others V Odco Pty Ltd (1991) 29 FCR 104, 140 (‘BWIU’).  Further, the Court is not confined to looking just at each site: see BWIU at 140. The enquiry looks at Boral’s overall business.

2. The words “would have or be likely to have” permit the Court to look not only at what has been established on the facts but also to infer from those facts what was likely to be the consequence of the conduct, looking at the position at or about the time the conduct was engaged in: TPC v TNT Management Pty Ltd (1985) 6 FCR 1 at 50 (Franki J). The reference to “would be likely to have” is meant to convey a lower degree of likelihood than “would have”. “Likely” in this context is not synonymous with more likely than not and it will suffice if the conduct is, in the circumstances, such that there is a real chance or possibility that it will, if pursued, cause substantial loss or damage: Tillmanns at 382 (Deane J).

3. In determining the likelihood of conduct to have a prohibited effect, Deane J in Tillmanns held that a Court should not restrict itself to a consideration of the actual effects of that conduct when it occurred:

   In my view, it was neither necessary nor correct to determine whether the conduct would have had or have been likely to have had the effect specified in sec.  45D(1) by reference only to the effect of the conduct in the limited period up until the time when the intervention of the injunction stayed its intended indefinite course.  The effect of the conduct during that limited period is, of course, relevant to determining whether, if permitted to continue indefinitely, the conduct of the Union and the personal respondents in imposing and procuring enforcement of the black ban would have had or would have been likely to have had the effect of causing substantial loss or damage to the appellant’s business.  It is not, however, necessarily determinative of it.

   (Emphasis added).

4. In Barneys Blu-Crete Pty Ltd v Australian Workers’ Union [1979] ATPR 40-139 at 18,510, Northrop J similarly said:

   It is contended that in the absence of evidence that over the period the black ban was being implemented the applicant had made less profit or had suffered a greater loss than that which it would have made or suffered if the black ban had not been implemented, the applicant had failed to prove substantial loss or damage.  I do not accept that contention.  The phrase “loss or damage” in sec.  45D(1)(a) is not directed to the question of quantum or less profit or greater loss over a period of time.  The phrase is directed to a factual situation where the purpose and effect or likely effect is the cause of substantial loss or damage to the business.  Where the conduct engaged in prevents a corporation from obtaining the raw materials necessary to enable it to carry on its business, of necessity that conduct is or is likely to have the effect of causing loss or damage to that business.  That is the position in the present case, and on the facts proved, the loss or damage is substantial.  The effect of the conduct engaged in is to prevent the applicant from producing concrete.  The very basis of its existence has disappeared.

   (Emphasis added).

5. Thus, harm to a business in the sense of s 45D encompasses not only the direct and quantifiable impacts on a business in respect of particular operations, but may also extend to more global impacts on the business, including on its reputation.  The CFMEU agreed with the ACCC that the phrase “would have or be likely to have” requires an assessment to be made on a forward looking basis (ie what was likely to have been the effect).  However, it submitted that this does not mean that the Court should disregard what has happened as a matter of fact.

6. The CFMEU contended that the evidence of the actual effects of impugned conduct constituted the best evidence available to the Court as to what the likely effect would have been, if assessed at the relevant time.  In Willis v The Commonwealth (1946) 73 CLR 105, Latham CJ (at 109) stated:

   …where actual facts are known, speculation as to the probability of those facts occurring is surely an unnecessary second-best.  Damages are awarded for injury actually suffered and for prospective injury.  Prospective injury can only be estimated with more or less probability.  But where the extent and character of what would at one time be described as prospective injury depends upon the happening or non-happening of a particular event and that event has in fact happened, it is unnecessary to speculate as to whether or not this event might happen and, if so, when.  In such a case prospective damage (or diminution of damage) has become actual.

   (Emphasis added).

7. At 116, Dixon J also referred with apparent approval to a review of the relevant authorities by Uthwatt J in In re Bradberry (1943) Ch 35, where the relevant principle was stated to be that “where facts are available they are to be preferred to prophecies”.

8. The CFMEU also offered the example of James Hardie Industries NV v Australian Securities and Investments Commission (2010) 274 ALR 85 (‘James Hardie’). In this case, the NSW Court of Appeal was concerned with whether conduct by the directors of James Hardie contravened s 1041E of the Corporations Act in that it was “likely” to have a particular inducing effect.  Chief Justice Spigelman, Beazley and Giles JJA referred to Deane J’s decision in Tillmanns and observed (at [341]) that s 1041E did not require proof of actual inducement, and the fact that persons were not in fact induced was not necessarily determinative of the predictive exercise the Court was required to undertake. They continued:

   However, as his Honour pointed out, in certain instances where conduct has run its course, a court would rarely be justified in ignoring the actuality of what happened …

   (Emphasis added).

9. The CFMEU submitted that the impugned conduct about which the ACCC complained had also run its course, and that the best evidence, in each instance, as to the likely effect of the impugned conduct, was what actually happened.  It submitted that its evidence demonstrated that each instance of impugned conduct, considered individually, did not as a matter of fact have any substantial impact on the business of Boral.  Thus the CFMEU contended that, on the basis of this evidence, the impugned conduct would not have nor be likely to have the effect of causing substantial loss or damage to the business of Boral.

10. I accept that once the actual facts are known, this is relevant (and sometimes) powerful evidence, of likely outcomes.  Nevertheless, the relevant enquiry here is to look at the conduct at the time undertaken, assess its likely outcome objectively, considering as part of that analysis, the actual outcome. 

    Attempted contraventions

11. The statement of the principles relating to an attempted contravention are not in real contention between the parties.  It is the nature of an attempt case that the attempt has or may not have succeeded.  There is nothing in the nature of the substantive provisions relevant to this proceeding that would preclude the possibility of an attempt case being available, even though it involves two or more persons acting in concert to achieve a particular purpose. 

12. For conduct to amount to an attempt, it must involve one or more steps towards the commission of the unlawful act and be immediately, and not merely remotely, connected or preparatory to the commission of the act: Trade Practices Commission v Parkfield Operations Pty Ltd (1985) 7 FCR 534 at 538-9.

13. When the conduct said to constitute the attempt is comprised of words, those words must be so framed as to be persuasive and to convey the potential for an arrangement or an understanding: Trade Practices Commission v Tubemakers of Australia Ltd (1983) 47 ALR 719 at 736. Toohey J went on in Tubemakers to say:

    A statement made quite unilaterally of intention to do something or to refrain from doing something, with no suggestion express or implied that others might act in the same way, is hard to visualise as an attempt to make an arrangement or arrive at an understanding … 

14. The mental element requires the ACCC to prove an intention to bring about the desired prohibited result.  In this respect, Toohey J said in Trade Practices Commission v Mobil Oil Australia Ltd (1984) 3 FCR 168 at 183:

    Where an attempt to induce is alleged, the submission was that there must be an intention to bring about the required result.  I accept that, in the case of attempt, there must be an intention to bring about the prohibited result.  I refer to my decision in Trade Practices Commission v Tubemakers of Australia Ltd (supra) in particular at 737 where I said:

    “In ordinary parlance, to say that a person has attempted to do something means that he has acted with the purpose of bringing about that which he is said to have attempted.  Questions may arise as to what precisely must be proved to establish attempt to commit an offence, but the principle that proof of intent is necessary is well established …”

    CONSIDERATION

15. I now turn to a consideration of the evidence in order to make findings about the ACCC’s claims.  First, I will address the evidentiary objections raised by the parties.  Secondly, I will make findings in relation to meetings of the CFMEU in February and March of 2013 at Trades Union Hall in Carlton, Victoria (‘Trades Hall meetings’).  It is convenient to make these findings upfront as the Trades Hall meetings pertain to each of the ACCC’s 12 claims.  Finally, I will consider each of the conduct allegations and attempt allegations in turn, followed by the omnibus claim.

    Evidentiary objections

16. The trial proceeded on the basis that certain evidence objected to would be admitted provisionally, subject to full argument in relation to the objections at the conclusion of the trial.  The CFMEU raised a number of evidentiary objections in their closing submissions.  I will now consider those objections in turn, as considerable emphasis was placed upon each objection by the CFMEU.  However, as will be observed, I have concluded that the evidence in contention is admissible, although restricting its use by reference to each site and separate allegation.

17. One of the areas of contention between the parties concerned the evidence given by various customers of Boral of statements (or representations) made to them by the shop stewards at the various sites.  Those representations were statements by shop stewards to the effect that Boral cannot deliver concrete on site, or there is a ban on using Boral on site, or that the shop steward will need to check the trucks if the customer uses Boral on site (‘ban-related representations’). Whilst such evidence of the customer witnesses might otherwise be inadmissible hearsay, the ACCC contended that such evidence (if not otherwise admissible) was admissible as admissions of the CFMEU. This was due to the operation of s 87(1)(c) of the Evidence Act.

18. Section 87(1)(c) relevantly states:

    For the purpose of determining whether a previous representation made by a person is also taken to be an admission by a party, the court is to admit the representation if it is reasonably open to find that:

    …

    (c)the representation was made by the person in furtherance of a common purpose (whether lawful or not) that the person had with the party or one or more persons including the party.

19. The ACCC submitted that these statements (or representations) were also admissible against the CFMEU as original evidence or circumstantial evidence, and were not to be treated as hearsay. 

20. For instance, the ACCC relied upon comments in Ahern v R (1988) 165 CLR 87 (‘Ahern’) by the High Court at 93 that:

    In conspiracy cases a clear distinction is to be made between the existence of a conspiracy and the participation of each of the alleged conspirators in it.  Conspiracy is the agreement of two or more persons to do an unlawful act or to do a lawful act by unlawful means and it is the fact of the agreement, or combination, to engage in a common enterprise, which is the nub of the offence.  This fact can seldom be proved by direct evidence of the making of an agreement and must in almost all cases be proved as a matter of inference from other facts, that is to say, by circumstantial evidence.  For this purpose, evidence may be led which includes the acts or declarations of one alleged conspirator made outside the presence of the others provided such evidence is not led to prove against the others the truth of any assertion or implied assertion made by the actor or the maker of the statement.  It may take the form of evidence of separate acts or utterances from which the fact of combination might be inferred.  Led in that way, it is not hearsay and is not dependent upon some circumstance to take it outside the hearsay rule, such as an implied authority making the acts and words of one the acts and words of the other.

21. In addition, the ACCC relied upon R v Associated Northern Collieries (1911) 14 CLR 387 (‘Associated Northern Collieries’) and ACCC v Air New Zealand Limited (No 1) (2012) 207 FCR 448 (‘Air New Zealand’).

22. In Associated Northern Colleries at 400 Isaacs J said:

    … though primarily each set of acts is attributable to the person whose acts they are, and to that person alone, there may be such a concurrence of time, character, direction and result as naturally to lead to the inference that these separate acts were the outcome of pre-concert, or some mutual contemporaneous engagement, or that they were themselves the manifestations of mutual consent to carry out a common purpose, thus forming as well as evidencing a combination to effect the one object towards which the separate acts are found to converge.

23. In Air New Zealand Limited, Perram J stated at [25]:

    .. one may prove an agreement or understanding between a group of people by proving behaviour of individual group members consistent with the existence of the agreement; that such behaviour may include evidence of what members of the group said to each other or even to third parties; and, that this use of conduct as circumstantial evidence of an agreement does not involve a hearsay use of the words used when some or all of the conduct relied upon consists of speech acts. This is straightforward: Ahern at 93-4.

24. This is one aspect of original and circumstantial evidence which may be relied upon by the Court, as the purpose of the evidence does not involve proof of the truth of any assertion or implied assertion.

25. As with all evidence, it therefore is important to determine the purpose of the evidence being introduced, and its relevance to the issue of fact that it is said to support or prove.

26. ACCC in its closing submissions made this purpose and relevance very clear:

    In this case, the statements made by the relevant shop stewards on site … provide powerful circumstantial evidence supporting the existence of the fact that the CFMEU gave the Ban Against Boral instruction at the February and March 2013 shop stewards meetings and that the relevant shop stewards attended at least one of those meetings understood that they should implement the Ban Against Boral at the relevant construction site.

    The statements made by the relevant shop stewards have a concurrence of character in the sense that the statements are to the same substantial effect. For example, as outlined below, the evidence establishes that:

    (a)at the Port Melbourne Site, Shop Steward Lythgo said to Fabrizio Ubaldi of Squadron Concrete Pty Ltd (Squadron), following the February shop stewards meeting, that there was a ban on Boral and that it was a directive from the CFMEU [Ubaldi: T176/14-45, T177/1-7];

    (b)at the Tarneit Site, Shop Steward Mazzeo said to Sean McEvoy of Oceania Universal Paving Australia Pty Ltd (Oceania) that the CFMEU did not want Boral supplying concrete on any CFMEU site. [McEvoy: T121/19-24, T121/31-33]. McEvoy also heard Shop Steward Mazzeo telling members at a toolbox meeting days later following a shop stewards’ meeting about banning Boral trucks on job sites [McEvoy: T122/21-30];

    (c)at the Richmond Site Shop Steward Scott said to Linus Humphrey of Oceania, shortly after the March 2013 shop steward’s meeting, “Don’t use Boral. We don’t need this shit” and “We don’t need any hassle from the CFMEU” or words to that effect [Scott: T243/11-19];

    (d)at the Melbourne City Site, Lou Vlahogiannis (Shop Steward Vlahogiannis) said to Darren Dudley words to the effect of, “you’re not going to be using Boral” and when Mr Dudley protested, Shop Steward Vlahogiannis said “That’s the way it is, the union is just around the corner. That’s just the way it is” and “You can use Boral if you like, but we will make sure that it takes you all day to unload. I will get a safety team down here, and it will take you all day to unload a truck” [Dudley: T47/26-27, T47/38-40, T48/1-6]; and

    (e)at the Notting Hill Site, Shop Steward Kemp said to Mr Humphrey of Oceania “You won’t be using Boral” to supply concrete [Humphrey: T141/30-35].

    They also reveal a coincidence of time. The statements start to be made immediately following the February 2013 meeting and occur within a relatively short period surrounding the meetings with two exceptions. For example, at the Officer Site, on the Friday following the February shop stewards meeting, Shop Steward Carrillo said to Mr Humphrey of Oceania that he had been instructed by the CFMEU that there were going to be issues with the use of Boral on site [Humphrey, T138, 15-23]. Whilst the statements at the Werribee and Williams Landing sites occurred sometime later, this delay is explicable by reason of the fact that concrete supply had only recently commenced on these sites and also the presence of Organiser MacDonald on the Werribee Site.

27. It is appropriate at this stage to mention s 98 of the Evidence Act, which was not relied upon by ACCC, but which the CFMEU submitted is applicable. If reliance is placed by a party on coincidence reasoning to prove an issue of fact, then the regime set out in s 98 of the Evidence Act will need to be followed by that party.

28. Section 98(1) states that:

    (1)Evidence that 2 or more events occurred is not admissible to prove that a person did a particular act or had a particular state of mind on the basis that, having regard to any similarities in the events or the circumstances in which they occurred, or any similarities in both the events and the circumstances in which they occurred, it is improbable that the events occurred coincidentally unless:

    (a)the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party’s intention to adduce the evidence; and

    (b)the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value.

29. It is to be observed that no notice had been given by the ACCC in relation to s 98(1)(a), no application to dispense with the notice requirement had been made pursuant to s 100, and no argument was presented as to whether the evidence had “significant probative value”. As Gageler J observed in Hughes v The Queen [2017] HCA 20, at [105] in dealing with tendency evidence, the utility of the notice goes beyond providing procedural fairness to other parties, but is required to enable the Court to make a rational decision as to the probative value of the evidence. As I have said, the ACCC submitted that s 98 had no application to the evidence being led in this proceeding.

30. Circumstantial evidence may be capable of supporting coincidence reasoning and other reasoning which is not regulated by s 98. Evidence of events, conduct or representations may be relevant and admissible for other purposes, and relied upon accordingly. Further, s 98 does not apply by mere reliance on improbability of coincidence unless the process of reasoning relied on similarities between certain events or the circumstances. However, s 95 expressly provides that evidence that is not admissible for its coincidence purpose “must not be used to prove that matter even if it is relevant for another purpose”. I note this provision is in contrast to the statutory hearsay, opinion and credibility rules. Therefore, if coincidence reasoning is relied upon, this may result in significant difficulties of proof if s 98 is not complied with – see for example Aristocrat Technologies Australia Pty Ltd v Global Gaming Supplies Pty Ltd (2009) FCA 1495 (‘Aristocrat’). 

1. Therefore, the position relevantly in this proceeding, is that even if evidence is admissible as relevant circumstantial evidence, or comes within s 87(1)(c), if the ACCC is using coincidental reasoning to prove a fact, this is not permissible reasoning to prove that fact. In other words, if the ACCC’s use of the evidence is to rely upon, to prove, and then reason as prescribed by the elements of s 98, it is caught by the requirements of s 98. It is then “coincidence evidence” as defined in the Dictionary of the Evidence Act. Even if the ACCC does not accept that this is the process of reasoning, it is ultimately up to the Court, even an appellate court on review, the determine the process of reasoning for itself, as the Aristocrat case demonstrates. It is to be recalled that there the Full Court disagreed with the trial judge’s characterisation of the reasoning process, and found that the reasoning relied upon by the trial judge was regulated by s 98 and quashed the trial judge’s findings of fact against one of the parties.

2. However, I now return to the issue concerning the operation of s 87(1)(c) before considering further s 98. Using the language of s 87(1)(c), the ACCC submitted there was sufficient evidence other than the ban-related representations to prove that:

   ·the common purpose between the CFMEU and the relevant shop stewards was to implement the Ban Against Boral; and

   ·the ban-related representations were made in furtherance of the common purpose.

3. Therefore, the ACCC contended that the evidence of the customer witnesses of those ban-related representations was admissible because of the application of s 87(1)(c).

4. The CFMEU disagreed, and in its closing submissions it made separate arguments in relation to evidence of ban-related representations of (a) Messrs Pettifer, Vlahogiannis, and Bellofiore and (b) other shop stewards.  The CFMEU made this distinction because it considered there was much less available evidence to suggest that Messrs Pettifer, Vlahogiannis, and Bellofiore (as compared to other shop stewards) made their ban-related representations in furtherance of a common purpose.  This was premised on the proposition that the ACCC could not use the ban-related representations themselves as supporting evidence on that point, and there was very little other evidence in this respect.

5. In relation to the other shop stewards, the CFMEU accepted that the evidence of their ban-related representations might receive different treatment under s 87(1)(c). In fact, the CMFEU accepted that “such evidence may be admitted for the purpose of testing it against the other evidence in relation to the same site”. This was only because, as the CFMEU submitted, there was sufficient available evidence to suggest that those ban-related representations were made in furtherance of a common purpose.  At paragraph 105 of the closing submissions of the CFMEU it was stated:

   Rather, it is by reason of the fact that at the end of the evidence, there exists other admissible evidence either that the shop steward in question attended the Trades Hall meetings (other than perhaps in the case of Harisiou), or evidence that the shop steward accepted that it was possible that by other means (including dissemination of check lists and publicity in the media) they became aware of issues with Boral.

6. I should indicate that I find that on the balance of probabilities Mr Andrew Harisiou attended the Trades Hall meetings, as to become aware of the issues with Boral (transcript, p 727).  In this way, I would put him in the same category as the shop stewards other than Messrs Pettifer, Vlahogiannis and Bellofiore. 

7. I will admit the evidence of the customer witnesses of the ban-related representations of the shop stewards other than Messrs Pettifer, Vlahogiannis and Bellofiore because of the application of s 87(1)(c).

8. I now turn to a consideration of the evidence to determine whether s 87(1)(c) is satisfied in relation to customer witness evidence of the ban-related representations of Messrs Pettifer, Vlahogiannis, and Bellofiore. As indicated above, the phrase “ban-related representations” refers to representations made by shop stewards to the effect that Boral cannot deliver concrete on site, or there is a ban on using Boral on site, or that the shop steward will need to check the trucks if the customer uses Boral on site.

   Evidence of ban-related representations of Mr Pettifer

9. Mr Linus Humphrey gave evidence that Mr Pettifer made two ban-related representations in the course of a 12-month job on the Lilydale site beginning in mid-2012 (transcript, p 144-6):

   HUMPHREY: There were two conversations.  One was earlier and that was when – that he [Pettifer] didn’t want Grollo branded trucks on the site.  And that went on and he basically asked Boral not to send the Boral logo trucks that were owned by Boral, but had Grollo labelling on them.  And then weeks after that, quite a while after that, then I was instructed that I wouldn’t – we wouldn’t be using Boral any more.

   …

   COUNSEL:Can you just explain again what he said, to the best of your recollection, about that topic [the first conversation]?---

   HUMPHREY:  “I don’t want those grubby trucks here on site.”

   …

   COUNSEL:And was it your understanding it was those trucks, with those logos, that were causing Mr Pettifer concern?---

   HUMPHREY:  Yes.  Yes.

   …

   COUNSEL:Okay.  All right.  Now, I think you said a few weeks later there was another conversation with Gerry Pettifer?---

   HUMPHREY:  Might have even been about two months, because it was about halfway through the project.  So it was – there was a period of time in between.

   …

   COUNSEL:Okay.  So, just – you’ve already indicated, generally, what the conversation was about.  Could you just tell his Honour, again, what was said by Mr Pettifer on this second occasion?---

   HUMPHREY:  Words to the effect that, “You won’t be using Boral here any longer”.

   COUNSEL:     Okay.  Did he say anything more than that?---

   HUMPHREY: Not too much more.

   COUNSEL:     Did he explain why Boral trucks wouldn’t be used on the site?---

   HUMPHREY:  That was the direction he had been given by the union.

   COUNSEL:      Okay?---

   HUMPHREY:  And he was going to enforce it.

10. The first question to determine is what other evidence can establish that the shop steward was in a common enterprise or more specifically whether the Court can be sufficiently satisfied that the representation made by the shop steward was made in furtherance of a common purpose.

11. It is to be recalled that each allegation relates to a particular site, and the allegation is that each shop steward acted in concert with the CFMEU. The Court cannot, at this stage at least, draw on the evidence relevant to other sites to show a “common purpose” in the application of s 87(1)(c).

12. I am not satisfied there is sufficient evidence in considering the application of s 87(1)(c) which would permit the Court to conclude that Mr Pettifer and the CFMEU were acting pursuant to a common purpose. There was no direct evidence Mr Pettifer attended the Trades Hall meetings in February and March 2013 (to which I will return). To the extent there is evidence that Mr Humphrey passed on the representation of Mr Pettifer to a third party (Mr Mark Milano), even if admissible, this would be of no probative value as to whether Mr Pettifer and the CFMEU were engaged in a common purpose.

13. The only other evidence relied upon by the ACCC was the fact that Oceania changed its concrete supplier to Holcim for a while, but at the very end of the project used Boral for the decorative concrete.  This evidence tended to show that Mr Pettifer did nothing to stop the Boral trucks at this stage.  The evidence does not demonstrate a common purpose with the CFMEU as alleged. 

14. I do observe that the evidence of Mr Humphrey and Mr Mark Milano was not contested, and Mr Pettifer was not called by the CFMEU.  Whilst I may infer that Mr Pettifer would not have assisted the CFMEU’s case, I cannot use the failure to call a witness to fill a gap in the evidence.  If, as I have found, there is no evidence to demonstrate a common purpose, the fact Mr Pettifer was not called cannot provide any evidence of such a common purpose.

15. Therefore, to the extent this evidence of Mr Humphrey is sought to be admitted for a hearsay purpose, it is not admissible pursuant to s 87(1)(c).

    Evidence of ban-related representations of Mr Vlahogiannis

16. Mr Darren Dudley gave evidence that Mr Vlahogiannis made a ban-related representation in the course of a job on the Melbourne City site in late-2012 or early-2013 (transcript, p 47-8):

    COUNSEL:As best you can remember, just … explain to his Honour what Lou [Vlahogiannis] said … to you and what you said to him?

    DUDLEY:We had just finished the footings to this job.  We had been using Boral.  Lou said to me, “We’re pretty much kicking off from here on, so you’re not going to be using Boral.” And I – we – we had a – a bit of banter between the two of us.  I got on very well with Lou, so what I said to him was pretty straight up, and he accepted it, the – the way I spoke, but I said to him - - -

    …

    I – I said to him, “You’re a bunch of arseholes.” I said, “This is going to cost us a lot of money,” and he said, “That’s the way it is.” He said, “The – the union is just around the corner.  That’s just the way it is.”

    COUNSEL: Do you recall him saying anything else to you?---

    DUDLEY:We had probably two or three conversations over a couple of months … but he also … He said to me, “You can use – you can use Boral if you like,” because I said, “This is going to cost us a fortune.  We’ve got an account with Boral.  If we’ve got to change, it’s weeks and weeks with the work, plus a lot of money,” and he said, “You can use Boral if you like, but we will make sure that it takes you all day to unload.  I will get a safety team down here, and you won’t – it will take you all day to unload a truck.”

    COUNSEL:Did he say where the safety team was from?---

    DUDLEY:He just said “a safety team” – “our safety team”.  I would assume that’s from CFMEU.

    …

    I had a bit of a joke to Lou, saying, “You’ve got to be kidding me.  That’s – there has never been an issue – in my whole time in the building industry, I have never, ever seen a concrete truck checked for safety – ever – to this day.”

    COUNSEL:     And what did Lou say, as best as you can recall?---

    DUDLEY:       “That’s the way it is.”

17. A similar analysis that was applied to Mr Pettifer applies to Mr Vlahogiannis.

18. There is no direct evidence Mr Vlahogiannis attended the Trades Hall meetings, nor to suggest he otherwise was informed of the Ban Against Boral in February or March 2013.  There is no evidence Mr Vlahogiannis did a safety check, or knew of the CFMEU’s position in this regard. 

19. Therefore, to the extent this evidence of Mr Dudley is sought to be admitted for hearsay purpose, it is not admissible pursuant to s 87(1)(c).

    Evidence of ban-related representations of Mr Bellofiore

20. Mr Mark Milano gave evidence that Mr Bellofiore made a ban-related representation in the course of a job on the Williams Landing site in approximately March 2014 (transcript, p 202):

    COUNSEL:All right.  Explain to his Honour what you recall about what happened at the site induction meeting, insofar as these Boral issues are concerned?---

    M.MILANO:  When I was deciding – we had basically just been given – awarded the project, and I was just basically going out there to show my face and meet the site team.  And, in doing that, Guy had – had mentioned to – to me that we needed to sort out if we were planning on using Boral, because we had had – we had experiences with Guy previously, and he knew we were a Boral customer, but if we were planning on using Boral we needed to speak to whoever we needed to speak to to get it sorted out. 

    COUNSEL:That’s what Mr Bellofiore said to you?---

    M.MILANO:  Yes.

    COUNSELAll right.  Did Mr Bellofiore say anything else to you in the course of that conversation, that you can recall?---

    M.MILANO:  He just didn’t want any grief on the job, and just to talk to whoever I needed to talk to to fix the problem.

21. A similar analysis applies to Mr Bellofiore.  There is no evidence to connect the communication (directly or indirectly) by the CFMEU to Mr Bellofiore regarding the Ban Against Boral.

22. I should also indicate that even looking at the ban-related the representations relied upon by the ACCC themselves, they did not provide probative evidence that safety checks at the site were necessarily going to be undertaken or that the Ban Against Boral was made by the CFMEU or understood by Mr Bellofiore (constituting the conduct of the ban).

23. Further, there was some doubt as to when the ban-related representation was made, but on the balance of probabilities, I find they occurred in about March 2014.  This is a year after the alleged instruction was given by the CFMEU at the Trades Hall meetings in February or March 2013. 

24. Therefore, to the extent this evidence of Mr Mark Milano is sought to be adduced for a hearsay purpose, it is not admissible pursuant to s 87(1)(c).

25. Before going to the question of whether the ban related representations are otherwise admissible (as original or circumstantial evidence) there are some other objections that should be dealt with. 

26. The ACCC contended that evidence of customer witnesses as to the ban-related representations of Messrs Pettifer, Vlahogiannis, and Bellofiore if hearsay was admissible for another reason, namely as admissions of those shop stewards. Reliance was placed by the ACCC on s 81 and 82 of the Evidence Act.

27. This contention can be dealt with briefly. The definition of an admission within the Dictionary of the Evidence Act is that of a previous representation that is made by a person who is or becomes a party to a proceeding (including a defendant in a criminal proceeding) and adverse to the person’s interest in the outcome of the proceeding. Given that Messrs Pettifer, Vlahogiannis, and Bellofiore are not parties to the proceeding, their ban-related representations cannot be treated as admissions for the purposes of the Evidence Act.

28. The ACCC also contended that the ban-related representations of Mr MacDonald (a CFMEU Organiser) would be admissible as an admission of the CFMEU.  Mr Damien Milano testified that Mr MacDonald made the following statements (transcript, p 103-4):

    COUNSEL:Okay.  Now, I want you to explain to his Honour how that came about.  Why you actually changed from Boral to another company to supply concrete?---

    D.MILANO:  On around 18 March, I received a call from Drew MacDonald, suggesting to me that it would be a good idea if we changed to another concrete supplier.  So that was the essence of the phone call.  So he directly called me

    …

    COUNSEL:Okay.  Did he say anything else to you about this question about Boral trucks?---

    D.MILANO:  Well, basically that if we would continue to use them, there would be some issues on site with delays of pours or checking of trucks or other things that could cause us issues and delays to our company. 

29. I consider that to the extent that this evidence amounts to an “admission”, Mr MacDonald’s evidence is admissible against the CFMEU pursuant to s 87(1)(b).  Mr MacDonald had authority to act for the CFMEU and the representations related to a matter within the scope of Mr MacDonald’s authority. 

30. However, despite the above analysis dealing with the objections to evidence raised by the CFMEU and the operation of s 87(1)(c), I will nevertheless admit the ban-related representations of the shop stewards, including these of Messrs Pettifer, Vlahogiannis and Bellofiore.

31. I regard these ban-related representations as being properly admitted as original or circumstantial evidence, and admissibility is not dependent on the operation of s 87(1)(c). The ban-related representations are relevant to assist in the proof of the fact the CFMEU gave the Ban Against Boral ‘instruction’ either at the February or March 2013 Trades Hall meetings, and that the relevant shop steward on the specific site understood this ‘instruction’ – the nature of which I will return to. The nature and purpose of the evidence is similar to that referred to in the passages relied upon by the ACCC in Ahern, Associated Northern Collieries and Air New Zealand.  The ban-related representations, whether “speech acts” or conduct, are relevant not to prove against the CFMEU the truth of the assertions made by the shop steward. 

32. I stress this is a course of reasoning that only can apply to each separate site, each ban-related representation and each separate shop steward. 

33. To the extent the ban-related representations are otherwise relied upon across all the sites, this has been objected to by the CFMEU on the basis of the application of s 98.

34. In my view, this objection should be upheld.  As the closing submissions of the ACCC make abundantly clear, coincidence reasoning and similarities are relied upon as part of the argument – the same substantial effect and similarities of all the ban-related representations and their coincidence of time to prove the making of the CFMEU Ban Against Boral and the shop stewards understanding of it. 

35. Of course, this does not mean certain facts sought to be proved by the ACCC cannot be proved by the same evidence and reasoning in relation to each site.  Once specific contested evidence is admitted, it must then be assessed alongside all the other evidence.  Once this is done, then the Court needs to consider each element of the alleged conduct to finally determine whether those elements have been proved; this is not for the purpose of determining admissibility issues but to determine liability on the balance of probabilities in relation to each site.  

    Trades Hall Meetings

36. It is now necessary to consider the Trades Hall meetings and the context in which they occurred. 

37. The ACCC alleges that, at the Trades Hall meetings on 14 February 2013 (‘February meeting’) and 14 March 2013 (‘March meeting’), the CFMEU gave an instruction to the relevant shop stewards that Boral should not be allowed on site to supply concrete on construction sites in metropolitan Melbourne (the Ban Against Boral).  There is no other allegation that the instruction came from another source outside those meetings.  To the extent it is not demonstrated that a particular shop steward did attend the March meeting (which I find to be the only meeting where the instruction was given or communicated), there is no other reliable evidence indicating that that particular shop steward knew of the instruction as alleged or knew of the instruction prior to their alleged implementation of the Ban Against Boral.  The ACCC further alleges that the nature of the instruction was such that the CFMEU expected and the relevant shop stewards understood that the shop stewards would implement the Ban Against Boral.  The ACCC submitted that the instruction included information or advice to the effect that shop stewards should not allow Boral to supply concrete to commercial construction sites.

38. I am wary of adopting the term “instruction” without further elaboration.  This term carries various connotations about the nature of the communication.  Therefore, I will first consider whether the CFMEU communicated with shop stewards at the Trades Hall meetings about implementing a Ban Against Boral.  Secondly, I will consider the nature of that communication, and whether it was in fact an “instruction” as alleged by the ACCC.

39. The evidence establishes that all the relevant shop stewards other than Messrs Vlahogiannis, Pettifer and Bellofiore attended the Trades Hall meetings.

40. The central evidence of the ACCC concerned minutes of the Trades Hall meetings.  No evidence was led directly from the CFMEU from any organiser of the meetings to assist the Court to understand the minutes other than as written.  I accept the minutes as being an accurate (but not a complete) record of what was said at the meetings.  Importantly, I accept that the context of the meetings is significant, as occurring in the middle of a serious and ongoing dispute between the CFMEU and Grocon.  I accept that the relevant shop stewards knew of this dispute, and knew that Boral was an important (if not exclusive supplier) of concrete to Grocon at the relevant time. I accept also that through the distribution of newsletters and the press, the shop stewards would have been aware from February 2013 to March 2014 of the ongoing dispute.  This is not to find that through this medium they knew of or followed the instruction relating to the Ban Against Boral as alleged.

1. The Officer site was a construction site in Officer that involved the construction of the Cardinia Shire Council offices.  The head contractor was Watpac Construction Pty Ltd (‘Watpac’).  Oceania was subcontracted to do the formwork and to build the foundations and structure, starting in around September/October of 2012.  Oceania used Boral as a concrete supplier for the job.  The shop steward for this site was Mr Salvador Carrillo, and he gave evidence on behalf of the ACCC.  The ACCC also called Mr Mark Milano and Mr Humphrey to give evidence in relation to this site.

   The ACCC’s case

2. The ACCC’s case was that shop steward Mr Carrillo approached Mr Humphrey at the Officer site and said that he (Mr Carrillo) had been given an instruction from the CFMEU that there were going to be issues with the use of Boral on sites.  There was also the evidence of Mr Mark Milano, who testified that Mr Humphrey telephoned him in the middle of February 2013 to tell him that that the shop steward on the Officer site had advised him that Oceania would have to look at another supplier and could not use Boral.

3. The ACCC contended that this was an attempted contravention as Boral was not actually hindered or prevented from supplying concrete in this instance.  After Mr Mark Milano had spoken with Mr Humphrey, he called Watpac’s Construction Manager, Mr Spiro Mirgiannis, who allegedly spoke with the CFMEU and obtained a dispensation to allow Watpac to continue to use Boral.  No Boral truck was ever turned away from the Officer site.

   The CFMEU’s case

4. The CFMEU submitted there was no evidence to suggest that Mr Carrillo was attempting to implement a Ban Against Boral.  Mr Carrillo repeatedly denied the existence of a Ban Against Boral, both at trial and during the s 155 interviews.  His recollection of Boral being mentioned at a Trades Hall meeting was limited to a discussion about the safety of concrete trucks from all companies – not just Boral.  Mr Carrillo was clear that the message he took away from the Trades Hall meeting was “to check all trucks in construction sites” – Mr Carrillo said he understood the union to be telling him that they did not want any unsafe concrete trucks on site (transcript, pp 496-7).

5. The CFMEU further submitted that Mr Carrillo’s implementation of safety checklists was both diligent and genuine.

   Consideration

6. The allegation against Mr Carrillo relates to events in February 2013 before the March meeting (see paragraph 83 of the Amended Statement of Claim).  Mr Carrillo was the ACCC’s own witness.  He repeatedly denied the existence of a Ban Against Boral in the sense that there was a “black ban”, or “bans”, and by reference to the February meeting.  He said of the Trades Hall meetings: “I never heard anything of bans.  There was no questions about bans.  There was nothing mentioned about bans” (transcript, p 489).

7. Mr Carrillo stated that there was no instruction given by the union to implement a Ban Against Boral and that the information he received from the union gave him to understand that he was to check the safety of all concrete trucks, regardless of supplier.

8. During his s 155 interview in October 2014, the following exchanges occurred:

   MR CRUTCHFIELD: Well, you had attended a shop stewards meeting in February 2013.

   MR CARILLO: Yes. Yes. Yes.

   …

   MR CRUTCHFIELD: Yes. And at that meeting a representative of the CFMEU told the shop stewards that Boral was to be black banned. That’s right isn’t it ?

   MR CARILLO: No, sorry no.

   …

   MR CARILLO: I don’t recall black banned.

   …

   MR CRUTCHFIELD: Yes. Well, what do you recall John Setka telling the shop stewards at that meeting? What’s your first recollection of what was said?

   MR CARRILLO: Well, the only thing I remember about talking about Borals – we weren’t only talking about Borals, we were talking about other agis as well, I mean, concrete companies, that to check the – the agis, which is the concrete trucks. We had a lot of concerns with a lot of them coming around. And Boral had a lot of issues with their concrete trucks, and that had to do because a lot of the flashing lights and a lot of the – weren’t working to safety standards on their trucks entering the premises as in, you know, a lot of leaks and oil, you know, no fire extinguishers in their trucks. There was a lot of things like that, so there was an alert basically just to keep an eye on the agis trucks, and that’s what I do.

   ……

   MR CRUTCHFIELD: --- the CFMEU representatives at the meeting said that Boral was to be black banned; that’s right isn’t it, because they were Grocon friendly contractors?

   MR CARRILLO: Look, I’m sorry to tell you, but honestly I don’t remember them saying “black ban”.

   …….

   MR CRUTCHFIELD: And John Setka said that the CFMEU wanted Boral to be black banned.

   MR CARRILLO: I don’t recall the word “black banned”.

   MR CRUTCHFIELD: All right. Well, as best as you can recall, what do you recall the discussion, without – just as best you can – what do you recall being discussed?

   MR CARRILLO: That they were friendly with Grocon.

   MR CRUTCHFIELD: Yes.

   MR CARRILLO: Okay. And, you know, obviously they’re – but I didn’t hear “black ban”. That’s what I’m trying to say.

   MR CRUTCHFIELD: Sure. Okay. Well, I will ---

   MR CARRILLO: Okay. I’m not going to sit here and say something that I don’t believe that I heard. Okay.

   MR CRUTCHFIELD: I won’t put “black ban” to you again.

   MR CARRILLO: Okay. So right. Thank you.

   ……..

   MR CRUTCHFIELD: Well, what I’m wanting to suggest to you is that the representative of the CFMEU told the meeting that Boral were Grocon friendly contractors and suppliers and as a result of that Boral trucks needed to be either stopped at the site, not allowed on to the site; do you agree with that?

   MR CARRILLO: No, it wasn’t just Boral, it was all trucks.

   MR CRUTCHFIELD: All trucks are going to be stopped?

   MR CARRILLO: No. No. Just check all trucks. It had nothing to do with Boral.

   ……… (emphasis added)

9. In evidence, Mr Carrillo agreed that the subject of Boral came up at a Trades Hall meeting, but put this in context as follows: “all other companies that had to do with trucks – of the concrete trucks that came out, there was an alert about them” (transcript, p 472).  Mr Carrillo said (transcript, p 472):

   They didn’t say much about Boral. They talked about all concrete agis – or all concrete trucks. Boral was mentioned. So was another couple of companies. And they just said make sure that you went out there- and we had to come in and check the trucks because there were a lot of unsafe trucks going on jobs to jobs. .

10. Mr Carrillo recalled talk of Boral trucks being unsafe and that there were a lot of concerns about their trucks.  The documents he was given were: “Not for Boral trucks.  It had to do with all concrete trucks” (transcript, p 473). 

11. Mr Carrillo confirmed that at an OH&S meeting, Dr Ayres of the union also spoke about safety of concrete trucks, and that there were “a lot of them out there that shouldn’t be on site” (transcript, p 475).  Mr Carrillo was clear that the message he took away from the Trades Hall meeting was “to check all trucks in construction sites” (transcript p 496).  Mr Carrillo said he understood the union to be telling him that they did not want any unsafe concrete trucks on site.

12. As to what Mr Carrillo took away from the Trades Hall meeting, he said he was to go back to work and notify the blokes on site of the safety concerns, of the fact that the list was out and that he would check the concrete trucks.

13. Accordingly, his evidence that the message he took away from the meeting was that all concrete trucks, regardless of supplier, were to be checked for safety reasons against the checklists ought to be accepted. 

14. In evidence, Mr Humphrey said Mr Carrillo told him he was given an instruction by the CFMEU that there was going to be issues with use of Boral on sites.  He said that Mr Carrillo did not explain to Mr Humphrey what ‘the issues’ would be.  Mr Humphrey did not form his own view as to what “issues” might mean.  Mr Humphrey also accepted that his understanding as to what those “issues” might be was derived from experience at other sites, rather than what Mr Carrillo told him.

15. However, Mr Carrillo denied approaching Mr Humphrey and raising Boral.  He said Mr Humphrey approached him.  Mr Carrillo said that he had gone in to discuss the safety aspects with the Watpac manager, when Mr Humphrey approached him and asked what was going on, because he was “hearing there are bans”.  Mr Carrillo said he responded to Mr Humphrey “No, it’s all rubbish” (transcript, p 476).  He strongly denied telling Mr Humphrey that he had been given an instruction that there were going to be issues with Boral on construction sites.  Mr Carrillo denied telling anyone at Oceania that Boral could not be used or that they should get a new supplier.  He said: “Why should I say that.  I’ve got nothing to do with dispatch of concrete” (transcript, p 489). 

16. Mr Carrillo has always denied conveying the existence of a ban or of an intention to check only Boral trucks.  The following passages from his s 155 interview confirm this to be so:

    MR CRUTCHFIELD: I’m not saying anybody has accused you of anything. That’s what I’m putting to you, is that after the meeting, you told Oceania, “Gee, fellas, you’re going to have a problem here because the CFMEU doesn’t want Boral on site.”

    MR CARRILLO: I wouldn’t have said that, no.

    MR CRUTCHFIELD: No. Well, what did you say?

    MR CARRILLO: I don’t know, but I wouldn’t have said that. Because I – I wouldn’t go out and do that. That’s not the way I work.

    MR CRUTCHFIELD: Well, it would be the right thing to do, wouldn’t it? Because you’re warning Oceania they’re going to have – may have a problem with getting these Boral trucks on site and getting concrete.

    MR CARRILLO: But I didn’t say that to them, because they had the contract there anyway. I used Boral. I used Boral. I used Grocon trucks on my jobs.

    ……..

    MR CRUTCHFIELD: But what I’m suggesting to you is that after this meeting, you told someone at Oceania, “From now on, you’re going to have a problem getting Boral on site because CFMEU don’t want them on site.”

    MR CARRILLO: I wouldn’t have said that to them.

17. I accept the evidence of Mr Carrillo.  The important point to note also is that his evidence (being relevant to February 2013 conduct) was referable in the main to the events and immediate aftermath of the February meeting.  This was before the instruction was given at the March meeting.  Mr Carrillo’s version of events has never altered, and is consistent with both the reality that Boral’s supply to Officer was never interrupted and with Mr Carrillo’s approach to the task of completion of safety checklists over many months in performing safety checks on all trucks.

18. Recalling the events predate the March meeting, consistently with the message he said he was given (conduct safety checks on all trucks), Mr Carrillo used the union’s safety checklist to check concrete trucks.  He said: “I still do them today… I do them every day”.  He explained that he takes pictures and notifies the employer of any trucks he says which are unsafe, but it is the employer who will decide whether they are to be taken off the road.

19. I should mention that Mr Humphrey considered that Mr Carrillo did not inspect trucks at Officer.  However, Mr Humphrey was not in a position to say whether Mr Carrillo had undertaken checks of trucks.  Mr Humphrey’s practice was to attend sites for which he was responsible about once a day for between half an hour and two hours each visit.

20. Mr Carrillo’s manner of checking the trucks while using a checklist was able to be done in a manner which did not delay the trucks, and occupied about 10 minutes “while the driver was doing his activities” (transcript, p 476).  Mr Carrillo never delayed a truck at the Officer site.

21. Mr Carrillo explained that he checked about 10 trucks at Officer.  He then ceased, by reason of the fact it was a small job with the same trucks coming and going and they were all brand new trucks.  He kept a record of their serial numbers so that he did not have to check them again in detail.  Mr Carrillo filled in checklists for the trucks he checked at Officer.

22. I cannot find that the safety checklists were deployed by Mr Carrillo at the Officer site as a device to delay or disrupt Boral’s deliveries. 

23. Mr Humphrey reported his conversation with Mr Carrillo to Mr Mark Milano.  Mr Mark Milano responded by contacting Mr Mirgiannis, the construction manager for the head builder, Watpac.  Mr Mark Milano told him that Oceania were using green star (Envirocrete) concrete, and thus it would not be easy to change suppliers.  Mr Mirgiannis replied that he would make some calls and try to ‘get to the bottom’ of what the issues were.

24. Mr Mirgiannis called Mr Mark Milano back the following day and said Oceania were “okay” to pour the vertical elements.  As to the rest of the job, he told Mr Mark Milano to “leave it with me”.  Mr Mirgiannis later contacted Mr Mark Milano again and said: “we’re right to go for the suspended slabs as well” with Boral.  While Mr Milano did not ask who Mr Mirgiannis had spoken with, he assumed Mr Mirgiannis had spoken to the union to get a “dispensation” to use Boral “due to green star concrete”.

25. Boral supplied Oceania for the rest of the Officer project, right through until May 2014.

26. The notion of a “dispensation” may indicate that the Ban Against Boral was in place already.  However, the difficulty with this inference is that there is no evidence of what the dispensation related to – the Ban Against Boral or some other action being taken by the CFMEU.  When the evidence is as I have described it, and in particular my acceptance of Mr Carrillo’s evidence, and the fact the allegation here only relates to events of February 2013, I cannot conclude that Mr Carrillo implemented the Ban Against Boral as pleaded in paragraph 87 of the Amended Statement of Claim.

27. Therefore, for those reasons, I cannot conclude that the CFMEU attempted to contravene s 45D(1) of the CCA as pleaded in paragraph 93 of the Amended Statement of Claim.

    Williams Landing

28. The Williams Landing site was a construction site in Williams Landing that involved the construction of a shopping centre.  The head contractor was Hacer.  Oceania was engaged to perform all of the concrete in situ work, starting in early 2014.  Oceania used Boral as a concrete supplier for the job.  The shop steward for this site was Mr Bellofiore, although he was not called to give evidence.  The ACCC called Mr Mark Milano to give evidence in relation to this site.

    The ACCC’s case

29. The ACCC’s case was that, at a site induction meeting at the end of February 2014, shop steward Mr Bellofiore mentioned that if Oceania was planning to use Boral concrete Mr Mark Milano needed to speak with whoever Oceania needed to speak with to get it sorted out. 

30. Mr Mark Milano gave evidence that following the meeting he rang Mr Vin Sammartino, one of the directors from Hacer, to seek Mr Sammartino’s approval to chase the CFMEU regarding the problem described by Mr Bellofiore.  Mr Sammartino said to Mr Mark Milano “You will need to talk to Shaun Reardon to resolve the safety concerns that they are having, or claiming to have, with Boral trucks” (transcript, p 202).

31. Following the telephone conversation referred to immediately above with Mr Sammartino, Mr Mark Milano arranged a meeting with Mr Shaun Reardon.  At the meeting, Mr Mark Milano advised Mr Reardon of a commercial advantage that Oceania had been offered and that he therefore really needed to use Boral at the Williams Landing site.  Mr Mark Milano gave evidence that in response, Mr Reardon talked about the safety concerns the CFMEU had with Boral and that he was not very happy with Boral because Boral had cost him a lot of money in court with the injunctions and filing proceedings against the CFMEU.  Mr Mark Milano gave evidence that he told Mr Reardon that if he was willing to give Oceania approval to use Boral concrete, Mr Mark Milano would ensure Boral had their fleet sorted, and that the safety concerns the CFMEU had were sorted.  Mr Reardon said that would talk to Mr Setka about the issue and come back to him.

32. Mr Mark Milano gave evidence that Mr Reardon called him back the following day and said “Boral is right to go” but asked if Oceania could, where possible, use another supplier of concrete on other projects (transcript, p 203).  Oceania used Boral concrete for the whole of the Williams Landing site.

33. Mr Damien Milano also gave evidence that whilst he was on the Williams Landing Site, Mr Bellofiore said to him that Organiser Mr MacDonald had mentioned to him (Mr Bellofiore) that he should be checking Boral trucks as they came on site for their roadworthiness or whatever checks that they wished to carry out (transcript, p 106).  Mr Bellofiore said that he did not want to check Boral trucks for roadworthiness as he did not believe it was part of his job.  Mr Bellofiore said he was not qualified to perform those checks as an OH&S representative and that if he was to check Boral trucks, he would want to check all the trucks on any site and on a large project it would be a very onerous job (transcript, p 106).

34. The ACCC also submitted that Mr Bellofiore was not called to give evidence by the CFMEU, and thus the Court should infer that the evidence of Mr Bellofiore would not have assisted the CFMEU’s case.

    The CFMEU’s case

35. The CFMEU made three central submissions:  first, the CFMEU submitted that there was no evidence to suggest that Mr Bellofiore attended the Trades Hall meetings of February or March 2013; secondly, the CFMEU submitted that the allegation concerned events which occurred in 2014, about one year after the Trades Hall meeting (which Mr Bellofiore may or may not have attended); and thirdly, the CFMEU submitted that Boral supplied concrete to Oceania for the project without incident for the entire job.

36. In relation to the site induction meeting, the CFMEU countered that whilst it appears possible Mr Bellofiore was half-heartedly reporting an instruction from the union, in the same breath he also said he did not want to cause grief on the job (and no one suggests he did; there is no suggestion Mr Bellofiore checked any trucks and no suggestion that any pours were hindered or delayed).

37. The CFMEU submitted there was no evidence to suggest that Mr Bellofiore was attempting to implement a ban against Boral in concert with the CFMEU.

38. The CFMEU also contended that it was a failure on behalf of the ACCC to not call Mr Bellofiore, and therefore it must be assumed that his evidence would not have assisted the ACCC’s case.

    Consideration

39. Mr Bellofiore was not called by the ACCC.  However, as I have indicated, I do not draw any inference against the ACCC in not calling a shop steward.  The CFMEU did not call Mr Bellofiore, but whatever inference I may draw in that regard, the failure to call him cannot fill the gap or gaps in proving the allegations made against the CFMEU.

40. Mr Damien Milano said that in June or July 2014, he spoke with Mr Bellofiore, who said that Mr MacDonald had mentioned to him that they should be “tracking Boral trucks as they come onto site for their roadworthiness or whatever checks they wanted to carry out” (transcript, p 106).  Mr Damien Milano said that Mr Bellofiore said that if he was going to check Boral trucks, he would want to check all the trucks and on a large project this would be onerous.  Mr Damien Milano did not see Mr Bellofiore check any trucks, and no one reported to him seeing Mr Bellofiore check any trucks.

41. The evidence from Mr Damien Milano does not show that Mr Bellofiore acted improperly.  Further, the words alleged to have been spoken (as set out in paragraph 184 of the Amended Statement of Claim) do not indicate the implementation of the Ban Against Boral even as a threat.  It is also to be remembered that I was not satisfied Mr Bellofiore attended the March meeting to receive the instruction.  In that regard, the position is the same as with Mr Pettifer and Mr Vlahogiannis, and unless it can be shown that Mr Bellofiore had the community of purpose to implement the Ban Against Boral, then it will not have been shown that CFMEU acted in concert with Mr Bellofiore as alleged in paragraph 186 of the Amended Statement of Claim.  Then, at the same time as Mr Bellofiore appeared to be repeating an instruction from the union organiser to check Boral trucks for “roadworthiness or whatever”, he simultaneously conveyed that he was not going to bother to do so, as it would be too onerous.

1. Mr Mark Milano attended a site induction, also attended by Mr Bellofiore.  Mr Mark Milano said Mr Bellofiore told him if you are planning to use Boral, he needed to speak to whoever we needed to speak to get it sorted out.  Mr Bellofiore did not want to cause grief on the job, and just told Mr Mark Milano to talk to “whoever” to sort it out.  No one suggests Mr Bellofiore caused any grief on the site, nor that he checked any trucks and there was no suggestion that any pours were hindered or delayed.

2. After his conversation with Mr Bellofiore, Mr Mark Milano called his cousin, Mr Sammartino, a director of Hacer to “seek his approval to chase the union” and highlighted to him the commercial advantage he had been offered by Boral.  Mr Mark Milano told his cousin he really needed to use Boral, because of the financial incentive they offered him.

3. Mr Sammartino suggested that Mr Milano speak to Mr Reardon of the CFMEU.  Mr Milano did so.  Mr Milano told Mr Reardon about the commercial advantage he had been offered.  Mr Mark Milano said that Mr Reardon “highlighted to me the safety concerns they had with Boral and he … he wasn’t very happy with Boral because they had cost him a lot of money …. in court injunctions.”  Mr Reardon highlighted safety concerns, including fire extinguishers, roadworthiness.

4. But Mr Milano pressed his point, stressing that he needed to use Boral, because of the advantage he had been given.  Mr Milano responded to Mr Reardon’s concerns by saying that if he was willing to give approval to use them, he would ensure Boral had their fleet sorted and that the issues were rectified.  Mr Mark Milano said that by promising to Mr Reardon that he would ensure the Boral fleet was “sorted”, what he meant was that he would go back to Boral and Mr Lane and “ensure the trucks that were going to be servicing that project met all the criteria that the union were looking for” (transcript, p 215).  Mr Mark Milano confirmed that he did relay this message back to Mr Lane.

5. Mr Mark Milano agreed that he had conveyed two messages to Mr Reardon; first, that Oceania really needed to use Boral due to the commercial advantage involved and second that Mr Milano would reiterate safety concerns with Boral and would ask that the trucks coming to their site not have the problems Mr Reardon had referred to.

6. Mr Reardon called Mr Mark Milano back the following day and said he would give them the green light to use Boral, but if possible to use another supplier on other projects.  Thereafter, Oceania used Boral for the Williams Landing site.  There were no difficulties with supply and Boral supplied over 2,600 cubic metres of concrete to Oceania on this job.

7. Whilst the giving of a “dispensation” is not determinative of whether an attempt was made, it is relevant evidence as to the course of conduct of the CFMEU.

8. In my view, there was no meeting of the minds between the parties alleged to have acted in concert in an attempt to hinder Boral’s supply to Williams Landing, if for no other reason than that Mr Bellofiore did not receive the instruction, and if he did, he did not propose to implement it. 

9. Mr Milano wanted to use Boral at Williams Landing for commercial reasons, and he did.  Mr Mark Milano explained to the Court that while he did not “push back” initially, because of the commercial advantage he had secured using Boral for this job, he decided it was “100% worth” sticking with Boral: T214.17 – 15.  He agreed that “when the price is right” he can stick with Boral, and that is what he did: Mark Milano T214.25 – 26.

10. For these reasons, I am not satisfied that Mr Bellofiore implemented the Ban Against Boral as alleged in paragraph 185 of the Amended Statement of Claim, or acted in concert with the CFMEU. In these circumstances, the CFMEU did not attempt to contravene s 45D(1) of the CCA at least as pleaded in paragraph 191 of the Amended Statement of Claim.

    The omnibus claim (Metropolitan Melbourne Conduct)

11. The ACCC also pleaded further and alternatively that the conduct of the CFMEU and all the aforementioned shop stewards constituted a single contravention of s 45D(1) of the CCA.

12. The pleading of this claim was contained in paragraphs 205 to 209 of the Amended Statement of Claim, including:

    206.The Metropolitan Melbourne Conduct hindered or prevented the acquisition of concrete by the customers in paragraphs 26, 29, 36, 39, 42, 46 and 49 above from Boral.

    Particulars

    The ACCC repeats the particulars to paragraphs 79, 89, 100, 110, 124, 135, 145, 155, 166, 177, 187 and 201.

    Contravention arising from the Metropolitan Melbourne Conduct – Secondary boycott

    207.Each of the CFMEU and each of the Shop Stewards referred to in paragraphs 205.2 above engaged in the Metropolitan Melbourne Conduct for the purpose (or alternatively, for purposes that included the purpose) of causing substantial loss or damage to the business of Boral.

    Particulars

    The ACCC repeats the particulars to paragraphs 80, 91, 101, 112, 125, 136, 146, 157, 167, 178, 189 and 202.

    208.The Metropolitan Melbourne Conduct would have, or was likely to have, had the effect of causing substantial loss or damage to the business of Boral.

    Particulars

    That the Metropolitan Melbourne Conduct would have, or was likely to have, had the above consequence is to be inferred from the matters referred to in the particulars to paragraphs 81, 92, 102, 113, 126, 137, 147, 158, 168, 179, 190 and 203.

    209.By reason of the matters referred to in paragraphs 205 to 208, the CFMEU contravened section 45D(1) of the Act.

13. This claim was explained by the ACCC as being an alternative claim only, going effectively to showing the Ban Against Boral was likely to have the effect of causing substantial loss and damage to the Boral business as a whole.

14. It was made clear that no allegation was being made relating to any conduct between each shop steward at each site.

15. I do not need to delay dealing with this omnibus claim.  I accept that when considering the likelihood of suffering substantial loss and damage, the Court should consider the whole of Boral’s business, even if the conduct relates to one site.  The Ban Against Boral was to be implemented in the Melbourne Metropolitan Area – the conduct of the CFMEU and the relevant shop steward in relation to one site could have impacted on the Boral business as a whole, and this potential impact needed to be considered.  I have already dealt with this issue in dealing with the issue of loss and damage.

    CONCLUSION

16. The ACCC has only been successful in demonstrating on the evidence two contraventions, namely in respect of the Hawthorn and Richmond sites.

17. It was understood the Court would provide these reasons on a confidential basis to the parties and their legal advisers, to consider the extent of their publication in view of the current criminal proceedings taking place relating to this proceeding.

18. The Court will need to consider this issue, and make further directions for the future conduct of this proceeding now the liability issues have been determined.

I certify that the preceding four hundred and forty-one (441) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Middleton.

Associate: 

Dated:        5 October 2017