Director, Fair Work Building Industry Inspectorate v Myles
[2019] FCCA 352
•14 February 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DIRECTOR, FAIR WORK BUILDING INDUSTRY INSPECTORATE v MYLES & ORS | [2019] FCCA 352 |
| Catchwords: INDUSTRIAL LAW – Fair Work Act – contravention of ss.355, 415, 417. |
| Legislation: Fair Work Act 2009, ss.12, 19, 355, 361, 415, 417, 421, 418, 793 Evidence Act 1995 (Cth), s.140 |
| Cases cited: Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2017] FCA 157 Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2010) 187 FCR 293 BHP Coal Pty Ltd v Construction, Forestry, Mining and Energy Union (2013) 239 IR 363 |
| Applicant: | DIRECTOR, FAIR WORK BUILDING INDUSTRY INSPECTORATE |
| First Respondent: | MICHAEL MYLES |
| Second Respondent: | RYAN WHAKAURU |
| Third Respondent: | DUNCAN MCALLISTER |
| Fourth Respondent: | KEVIN GRIFFIN |
| Fifth Respondent: | CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION |
| File Number: | BRG 1165 of 2014 |
| Judgment of: | Judge Jarrett |
| Hearing date: | 22 September 2015 |
| Date of Last Submission: | 23 September 2015 |
| Delivered at: | Brisbane |
| Delivered on: | 14 February 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr Pratt |
| Solicitors for the Applicant: | DLA Piper |
| Counsel for the Respondents: | Mr Reitano |
| Solicitors for the Respondents: | Hall Payne |
ORDERS
Within 14 days of today, the parties bring in minutes of orders upon which they agree to give effect to these reasons;
Otherwise the application be adjourned to a date to be fixed for the making or orders consistent with these reasons and in relation to the issues of interest, penalties, costs or other relief.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 1165 of 2014
| DIRECTOR, FAIR WORK BUILDING INDUSTRY INSPECTORATE |
Applicant
And
| MICHAEL MYLES |
First Respondent
| RYAN WHAKAURU |
Second Respondent
| DUNCAN MCALLISTER |
Third Respondent
| KEVIN GRIFFIN |
Fourth Respondent
| CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION |
Fifth Respondent
Table of Contents
REASONS FOR JUDGMENT
Some formal matters
The evidence
The incidents
10 September, 2014
11 September, 2014
12 September, 2014
13 September, 2014
15 September, 2014
16 September, 2014
Wednesday 17 September 2014
9 October, 2014
10 October, 2014
The alleged contraventions
The onus and burden of proof
The statutory framework
Industrial action – 11, 12, 13 September, 2014
Did the first, second or third respondents organise the industrial action on 11, 12 and 13 September, 2014?
Industrial action – 15 and 16 September, 2014
Did the first, second or third respondents organise the industrial action on 15 and 16 September, 2014?
Industrial action - 9 October 2014
Failure to comply with the order of the Fair Work Commission
Coercion
Vicarious liability of the CFMEU
Conclusion
REASONS FOR JUDGMENT
This is an application alleging contraventions of the Fair Work Act 2009 (Cth) arising out of events that occurred on a construction site for the redevelopment of the Queensland University of Technology campus at Kelvin Grove, Brisbane. The work involved the demolition and refurbishment of existing buildings and the construction of a new building.
In September and October, 2014 a series of events occurred on the QUT project site involving workers leaving the site and attending what the applicant terms “two-hour stoppages”. These are the events by which the applicant alleges the respondents contravened the Fair Work Act by organising or participating in unprotected industrial action, by refusing to comply with an order of the Fair Work Commission to cease such conduct and by engaging in coercive behaviour contrary to the provisions of the Fair Work Act. The application is opposed by each of the respondents.
The respondents were either employed at, or from time to time visited the QUT project site. They are:
a)the first respondent – Michael Myles, employed by the fifth respondent, the Construction, Forestry, Mining and Energy Union, as an “organiser”;
b)the second respondent – Ryan Whakaruru, an employee of John Holland who performed work at the QUT project site and who was an elected delegate of the CFMEU;
c)the third respondent – Duncan McAllister, an employee of OneForm Pty Ltd, a subcontractor of John Holland and who performed work at the QUT project site and who was an elected delegate of the CFMEU; and
d)the fourth respondent – Kevin Griffin, employed by the CFMEU as an “organiser”.
Up to the close of the applicant’s case, the first, second, third and fourth respondents had elected to invoke their privilege against exposure to a penalty. Their defences consisted of denials. However, after the close of the applicant’s case, all respondents sought leave to file and serve an amended defence. It was a single document on behalf of all of the respondents. It contained a large number of admissions. In the absence of any objection by the applicant I granted leave for the respondents to file the amended pleading. After filing the amended defence the respondents, by their counsel, elected not to call any evidence.
For the reasons I have set out herein, I have concluded that none of the allegations of contravention, save for two made against Mr Whakaruru are established by the evidence.
Some formal matters
By reason of the admissions within the amended defence, I find that on 11, 12, 13, 15, 16 September, 2014 and 9 and 10 October, 2014:
a)Mr Whakaruru and Mr McAllister were agents or elected delegates of the CFMEU;
b)both Mr Whakaruru and Mr McAllister were within the definition of officer as that term is used in s.12 of the Fair Work Act and were officers of the CFMEU;
c)Mr Myles and Mr Griffin were each an official and officer of the CFMEU for the purposes of s.12 of the Fair Work Act; and
d)the CFMEU was an industrial association as well as an employee organisation within the meaning of s.12 of the Fair Work Act.
The QUT project site was operated by John Holland Queensland Pty Ltd. There is no dispute that John Holland was the principal contractor and the occupier of the site for the purposes of Part 3-4 of the Fair Work Act.
John Holland employed a number of managers and supervisors relevant to these proceedings. Their names and positions are as follows:
a)Mr Peter Kazaglis – Construction Project Manager;
b)Mr Jeffrey Lacoste – Construction Project Manager;
c)Mr Victor Van der Rhede – Senior Site Manager;
d)Mr Stephen Bedford – Site Supervisor;
e)Mr Ian Paton – Project Safety Advisor; and
f)Mr Colin Matthews – Operations Manager.
Apart from Mr Paton, each of these people swore affidavits that were relied on by the applicant in these proceedings. Their affidavits stood as their evidence-in-chief. Messrs Kazaglis, Lacoste, Van der Rhede, and Bedford were each cross-examined.
It is uncontentious that to carry out the work it was obliged to perform on the QUT project site, John Holland engaged a number of subcontractors. Several of the applicant’s witnesses deposed to there being two main types of subcontractors. The subcontractors are referred to by these witnesses as belonging to either the “structural trades” or the “service trades”. The former are mostly engaged to perform structural work on the site and the latter are engaged to carry out services work such as plumbing and electrical installations. There is evidence that the work of the structural and service trades is interdependent to a certain extent. In addition to the subcontractors, John Holland employed three construction workers on the site. Mr Whakaruru was employed by John Holland.
The parties agree that a number of enterprise agreements covering all relevant subcontractors’ employees were in effect at the times of the alleged contraventions. It is agreed that the enterprise agreements covered the CFMEU. The evidence demonstrates, and I find, that enterprise agreements were in force at the relevant times as follows:
Employer/subcontractor
Agreement
Nominal expiry date
John Holland
John Holland Queensland Pty Ltd Pty Limited Building and Construction Enterprise Agreement (QLD & NT) 2012 – 2016
31 January 2016
Morrow Equipment Co. LLC
Morrow Equipment Co. L.L.C. and CFMEU Union Collective Agreement 2011 – 2015
31 March 2015
Johnston Contracting Pty Ltd
Johnston Contracting Pty Ltd and CFMEU Union Collective Agreement 2011 – 2015
31 March 2015
OneForm Pty Ltd
OneForm Pty Ltd and CFMEU Union Collective Agreement 2011 - 2015
31 March 2015
Marveldale Pty Ltd T/A East Coast Concrete Contractors
Marveldale Pty Ltd T/A East Coast Concrete Contractors and CFMEU Union Collective Agreement 2011 – 2015
31 March 2015
Structural Systems (Northern) Pty Ltd
Structural Systems (Northern) Pty Ltd and CFMEU Union Collective Agreement 2011 – 2015
31 March 2015
Precision Interior Walls & Ceilings Pty Ltd
Precision Interior Walls & Ceilings Pty Ltd and CFMEU Union Collective Agreement 2011 – 2015
31 March 2015
X-Cel Scaffolding Pty Ltd
X-Cel Scaffolding Pty Ltd and CFMEU Union Collective Agreement 2011 – 2015
31 March 2015
Global HR Pty Ltd
Global HR Pty Ltd and CFMEU Union Collective Agreement 2011 – 2015
31 March 2015
Usher & Sons Commercial Coatings Pty Ltd
Usher & Sons Commercial Coatings Pty Ltd and CFMEU Union Collective Agreement 211 – 2015
31 March 2015
Specialised Concrete Pumping Pty Ltd T/A Specialised Concrete Pumping
Specialised Concrete Pumping Pty Ltd T/A Specialised Concrete Pumping (SCP) and CFMEU Union Collective Agreement 2011 – 2015
31 March 2015
Casa Engineering (Brisbane) Pty Ltd
Casa Engineering (Brisbane) Pty Ltd and CFMEU Union Collective Agreement 2011 – 2015
31 March 2015
G James Glass
G James Glass and CFMEU Union Collective Agreement 2013 – 2016
30 June 2016
According to Mr Lacoste’s evidence, the subcontractors set out in the above list were primarily structural trade subcontractors. It will be observed that at the time of the events with which these proceedings are concerned, none of the enterprise agreements had reached their nominal expiry dates. It will be necessary later in these reasons to consider the terms of the individual agreements in certain respects.
The evidence
The evidence upon which the applicant relies is comprised, primarily, of the affidavits of evidence-in-chief sworn by each of those witnesses. There were some substantial objections to some of the evidence of some of the witnesses. Many of the objections were agreed. Consequently, the applicant prepared copies of the affidavits with the agreed objections redacted. They were subsequently marked as exhibits. There are eleven exhibits in total, each of which is an affidavit of evidence-in-chief. Some witnesses swore two affidavits. Although four witnesses were cross-examined, none were challenged in any significant way about their evidence. Where there was some clarification of a witness’s evidence through cross-examination and that is relevant, I have referred to it below.
The incidents
10 September, 2014
The matters that occurred on this day are not said to be contraventions of the Fair Work Act. They do, however, provide context for what occurred on the following days.
On 10 September, 2014 Mr Myles together with Mr Olsen, another official of the CFMEU, entered the QUT project site and were escorted by Mr Whakaruru to Mr Kazaglis’s office on site. Mr Kazaglis was one of John Holland’s onsite project managers. According to Mr Kazaglis’s evidence, at around 11:45am he met with Mr Myles and had a conversation to the following effect:
Mr Myles: Do you know if anyone has supplied induction records to the FWBC because a number of our site workforce received calls from them over the weekend.
Mr Kazaglis: I don’t know anything about this and am unaware that it was happening.
Mr Myles: Do you know if Pato is behind it?
Mr Kazaglis: I don’t know anything about it.
Mr Myles: Well, if you hear anything can you let me know.
And then, just before Mr Myles left Mr Kazaglis’s office:
Mr Kazaglis: Is everything else ok?
Mr Myles: Your cranes need flags.
Mr Kazaglis: Where are you going now?
Mr Myles: The carpark.
Mr Kazaglis: Fine, as long as you are not planning on going onto
site.
Mr Myles: No.
Mr Kazaglis’s evidence is that he understood the reference to “Pato” to be a reference to Mr Ian Paton, to whom I have referred above.
Mr Kazaglis was not challenged on this evidence. I accept it.
Mr Van der Rhede, a site manager employed by John Holland and working at the QUT project site, gave evidence that during the evening of 10 September, 2014 Mr Colin Matthews, operations manager for John Holland, sent him an email in which he set out John Holland’s response to the matters raised by Mr Myles concerning the provision of workers’ details to the Fair Work Building Commission.
11 September, 2014
Early the next morning Mr Van der Rhede was tasked by Mr Lacoste, another of John Holland’s onsite project managers, with conveying to the workers at the QUT project site John Holland’s response to the claim that workers’ details had been provided to the FWBC.
While Mr Van der Rhede was receiving his instructions from Mr Lacoste, a crane operator employed by the subcontractor called Morrow Equipment LLC interrupted and asked Mr Van der Rhede if he knew anything about a “6:30 meeting with the CFMEU”. Mr Van der Rhede said that he did not.
Sometime after 5:45am Mr Van der Rhede met with Mr Whakaruru in the former’s office. Mr Van der Rhede read out John Holland’s response to Mr Myles’s concerns raised the previous day. After he did that, Mr Whakaruru told him that when Mr Myles came to the site later that morning, he should show Mr Myles the email.
The respondents admit that between 5:30am and 6:00am Mr McAllister began organising employees on the site to attend a meeting by saying to them as they approached the entrance of the site words to the effect of “There will be a union meeting today at 6:30am.”
Mr Van der Rhede told Mr Kazaglis about the proposed 6:30am meeting with the CFMEU that the crane operator had mentioned to him.
Mr Van der Rhede went to the entrance of the site to meet Mr Myles when he arrived. As he did so he saw and heard Mr Whakaruru and Mr McAllister telling subcontractor workers in their crib sheds that there would be a union meeting at 6:30am. At the front entrance to the site Mr Van der Rhede saw Mr Mark Bateman, who Mr Van der Rhede describes as an “ETU organiser”, talking to workers from the services trades.
Mr Van der Rhede gave evidence that at around 6:23am Mr Myles arrived in the carpark which adjoined the entrance to the site. Mr Myles met up with Mr Bateman. Mr Van der Rhede approached them and told them that he wanted to read to them John Holland’s response to the issue Mr Myles had raised with Mr Kazaglis the day before. He did so. When he had finished, Mr Myles said:
That’s fine but I still got to address the members.
By this time, according to Mr Van der Rhede’s evidence, about 50 workers had gathered in a group away from the front entrance to the site, but still in the carpark. Mr Van der Rhede observed Mr Myles address the assembled group for about 10 minutes although he was not close enough to hear what was said. He observed the workers in the group raise their hands “as if taking a vote”.
According to Mr Van der Rhede, Mr Bateman did not accompany Mr Myles to the group gathered in the carpark but had moved off to the side of the front entrance. Mr Van der Rhede observed him addressing a group of electrical and plumbing workers. He was not close enough to hear what was being said.
Mr Kazaglis arrived at work on the QUT site at 5:30am. According to his evidence, a major concrete pour was planned for that day commencing at 7.30am. He said that at some time prior to 6:30am Mr Van der Rhede told him that there was going to be a meeting in the carpark. At 6:30am he noticed that the cranes on the site were not moving and there were no operators in the cabs of the cranes. He expected that there would have been. He left his office and found Mr Van der Rhede and some others observing the group that had gathered in the carpark. Mr Kazaglis said that he saw a meeting in progress. On his estimate there were between 80 – 100 workers present at the meeting. The respondents admit that the estimate is accurate.
To Mr Van der Rhede’s observation, the gathering which Mr Myles was addressing ended at approximately 6:39am. Mr Kazaglis said that the meeting went until about 6:45am. Both Mr Kazaglis and Mr Van der Rhede gave evidence that they saw the gathering disperse and the workers walk back to their crib rooms and start collecting their personal belongings. They saw those workers commence leaving the site, get into their cars and drive away. Mr Kazaglis swore that he saw workers from the subcontractors OneForm and Johnston, walk past him carrying their belongings and leaving the QUT project site.
Although it is impossible to tell from the evidence when they did so, I am satisfied that all of the employees (save for Mr Whakaruru and Mr McAllister) did not perform any work on the site on that day and left the site after the meeting with Mr Myles.
Mr Van der Rhede and Mr Kazaglis went back to their respective site offices.
Mr Bateman came to see Mr Van der Rhede in his office. He asked for a safety plan from Mr Van der Rhede so that the service trades could keep working if they wished to do so. Mr Van der Rhede came up with a plan that suited Mr Bateman.
Mr Kazaglis went to Mr Van der Rhede’s office. He arrived while Mr Bateman was still there. Mr Kazaglis and Mr Van der Rhede gave different accounts of the events that occurred next. According to Mr Van der Rhede:
a)After Mr Bateman spoke to him, Mr Myles, Mr McAllister and Mr Whakaruru came to see him. They had a conversation to the following effect:
Mr Myles:We’re coming back tomorrow morning to meet with the workers at 6:30am to tell the workers what we want from John Holland.
Mr Van der Rhede: Wait here while I go and get Peter Kazaglis.
b)Mr Van der Rhede fetched Mr Kazaglis. When they returned to Mr Van der Rhede’s office, Mr Myles said to Mr Kazaglis words to the following effect:
Mr Myles:I want a letter from John Holland confirming that John Holland will not pass on the workers’ personal details such as phone numbers and induction records to the FWBC, and to confirm that John Holland had not previously passed on those details.
c)Mr Kazaglis said: “I will need to come back to you guys”.
d)The meeting then dispersed.
There was no challenge to the accuracy of Mr Van der Rhede’s evidence about what occurred on 11 September, 2014 save for the terms of the conversation that he had with Mr Myles:
Mr Reitano:There was a meeting of employees in the car park? --- Correct.
After that meeting---? --- Yes.
--- you attended a meeting, quite separate from that one, which Mr Myles was at?--- Mr Myles would have come to our office on that day after.
--- and you sat down with him and some other people---? --- Yes.
--- and had a conversation? ---Yes.
And in that conversation did he tell you and the other people who were there that the workers wanted a letter – sorry – in substance, that the workers wanted a letter that said that John Holland would not hand over their private information or something like that; is that --- ? --- Yes. They requested the letter from John Holland as you mentioned.
And I’m asking you did he say that the workers wanted a letter to that effect? --- I said yes. Correct.
Mr Kazaglis gave evidence to the following effect:
a)After going to Mr Van der Rhede’s office and after Mr Bateman left, he and Mr Van der Rhede went together to locate Mr Myles in order to have a discussion with him about what had occurred that morning;
b)They located Mr Myles outside the front of the main site toilets at the front gate of the QUT project site. Mr Whakaruru and Mr McAlister were there with Mr Myles.
c)There was a discussion to the following effect:
Mr Kazaglis: Why have the guys gone?
Mr Myles:The boys have decided to go home as John Holland has provided contact details of workers to FWBC and they want a letter from John Holland confirming they will not do this again.
Mr Kazaglis: Mick you asked me the other day to look into this issue and we contacted FWBC and FWBC confirmed that they have contacted five workers from the site in relation to the May Day Rally this year and that it is not an issue specific to this site as people from other sites have also been contacted. I don’t know of anyone volunteering information to the FWBC.
[To Mr Whakaruru] If we did provide the information would you not think that yours would be the first we would give? Did they contact you?
Mr Whakaruru: No.
Mr Myles:They don’t bother with delegates.
We want a letter from John Holland stating that John Holland will not pass on any personal details of the guys to Fair Work Building Construction and confirm that John Holland has not previously passed on those details.
Mr Kazaglis: I will need to come back to you guys about that.
Mr Kazaglis says that he then went back to his office and made a telephone call to Colin Matthews. After the call was complete he noticed that Mr Myles, Mr Whakaruru and Mr McAlister were in Mr Van der Rhede’s office so he went into his office. After a few preliminary words, Mr Kazaglis said words to the following effect:
Mr Kazaglis: With regards to your request, we can’t provide such a letter as we can be asked to provide this information under law and once again I confirm that to the best of my knowledge nobody from this office has provided any information to the FWBC.
Mr Myles:That’s fine but the guys want a letter at the report back meeting planned for tomorrow confirming that John Holland has not and will not voluntarily provide information to FWBC and that if John Holland is required to do so that it will advise us and the worker directly that their information had been handed over.
Mr McAlister: That’s all we want, we understand you have to give the info if asked (by FWBC), we need a letter confirming that you won’t do it again without telling us and the worker.
Mr Kazaglis then left the room at approximately 7:16am.
It is not necessary, I think, to make a finding about whether Mr Kazaglis’s evidence or Mr Van der Rhede’s evidence is more accurate. What is clear is that Mr Myles was demanding, on behalf of the workers, a letter from John Holland setting out certain matters and that Mr Kazaglis provided a response to him about that. It was put to Mr Van der Rhede and he agreed that Mr Myles said that it was the “workers” who wanted the relevant letter. That is consistent with Mr Kazaglis’s evidence.
Later that day, John Holland made an application to the Fair Work Commission pursuant to s.418 of the Fair Work Act for a return to work order. The application was heard the next day.
12 September, 2014
By the amended defence filed on 22 September, 2015 all respondents admit that on 12 September, 2014:
a)Mr Whakaruru and Mr Kazaglis met at about 5:45am and Mr Whakaruru enquired of Mr Kazaglis whether John Holland would provide a letter stating that it would refuse to willingly provide contact details of employees on the QUT project to the applicant. Mr Kazaglis told him that John Holland would not provide such a letter;
b)at around 6:00am between 70 and 80 employees who were scheduled to work on the site that day assembled in the site carpark;
c)Mr Myles attended the carpark at about that time and began conversing with the employees;
d)at around 6:30am Mr Kazaglis addressed the assembly of employees and told them that John Holland refused to provide a letter that stated John Holland would refuse to willingly provide contact details of employees on the QUT Project to the applicant;
e)from between around 6:40am and 7:00am, Mr Myles addressed the assembled employees;
f)at around 7:30am representatives of John Holland asked Mr Myles to leave the QUT Project Site because he refused to provide details about his right to enter the site;
g)at around 9:50am Mr Myles was directed by Queensland Police Service Officers to leave the site;
h)at about 10:00am Mr Myles, Mr Whakaruru and Mr McAllister left the site.
Mr Van der Rhede gave evidence that he arrived at the QUT project site on Friday 12 September, 2014 at approximately 5:30am. At approximately 6:30am, he went for a walk around the site and observed approximately 80 of the QUT project subcontractors’ workers gathered in the site carpark in a circle. He also saw that Mr Myles was in the carpark addressing those workers. According to Mr Van der Rhede, Mr Myles addressed the group for approximately 30 minutes. He could not hear what was being said because he was too far away.
After the gathering of workers ended, Mr Van der Rhede observed that those workers went to their crib huts, packed up their belongings and left the QUT project site. According to his evidence none of the QUT project structural trades workers performed any work on the site that day. However, the service trades continued to work.
Mr Lacoste arrived at work on 12 September, 2014 at about 5:40am. He walked around the site and was told by one worker that there was to be a “report back” meeting at 6:30am.
At about 6:00am Mr Lacoste observed Mr Myles near the site entry in the adjoining carpark. He approached Mr Myles and said words to the effect: “We have a statement to read out to the workers but we are unable to distribute it”. Mr Myles, however, walked away from Mr Lacoste and started mingling with the workers in the carpark.
Mr Lacoste returned to his office and then at about 6:30am he returned to the entry to the site where he observed about 50 – 70 workers from the structural trades standing at the northern end of the carpark apparently having a meeting. He could not see who was addressing the meeting. It continued for about five to ten minutes. Mr Van der Rhede and Mr Kazaglis had joined Mr Lacoste.
A few minutes later, Mr Whakaruru walked toward where Mr Kazaglis, Mr Van der Rhede and Mr Lacoste were standing. Mr Kazaglis walked off toward Mr Whakaruru as he was making his way to where the meeting was being held in the carpark. Mr Van der Rhede and Mr Lacoste followed about 20 metres behind
When they reached the meeting of workers, Mr Kazaglis, Mr Van der Rhede and Mr Lacoste made their way to the front where Mr Myles was also standing. Mr Lacoste heard Mr Myles address the workers and say to them: “These guys have got something to say to you.”
Mr Kazaglis then addressed the workers. According to Mr Lacoste, Mr Kazaglis said words to the following effect:
I have a few things to say about the allegation that John Holland had issued personal records to Fair Work Building and Construction. The FWBC has advised John Holland that they are investigating industrial action which was the result of the May Day rally which was affecting a number of building sites across Brisbane, and in accordance with FWBC’s powers, certain persons had been identified during the course of the investigation and had been contacted by FWBC Inspectors. FWBC had identified 5 employees from one subcontractor on the QUT Project and that only one employee has been spoken to.
Mr Lacoste’s evidence was that a number of the workers at that meeting began asking questions about induction records. Neither Mr Kazaglis, Mr Van der Rhede nor Mr Lacoste had any opportunity to answer any of the workers’ questions because the workers were asking questions at the same time and over the top of each other. Mr Kazaglis, Mr Van der Rhede and Mr Lacoste left the meeting and returned to their respective site offices.
Subsequently, Mr Myles, Mr Whakaruru, Mr McAllister and another CFMEU organiser, Adam Olsen met with Mr Lacoste, Mr Kazaglis and Mr Van der Rhede. Mr Lacoste’s evidence is that he had the following conversation:
Mr Myles:The workers don’t trust Ian Paton and they would go back to work if he was to be removed from site.
Mr Olsen:Ian was on the loading bay taking photos and pretending to talk on his phone.
Mr Lacoste:We’ll talk to Ian and see if that’s true.
Ian Paton was John Holland’s Project Safety Advisor at the QUT Project. Mr Kazaglis and Mr Lacoste then left the meeting and spoke with Mr Paton and subsequently, Mr Matthews. They returned to the meeting with Mr Myles and Mr Lacoste said that the following conversation occurred:
Mr Kazaglis: We spoke to Ian, he was on the phone to his wife and we will not be removing him from site.
Mr Myles:You make it pretty easy for me. I’ll go and see the boys and let them know. We offered you to keep him in the shed and we go back but you did not take that up.
The respondents deny that this conversation took place in their pleading. However, in cross-examination counsel for the respondents did not suggest that the conversation did not occur, but rather that different words might have been said. He put to Mr Lacoste the proposition that Mr Myles had in fact said “you don’t make it easy for me” or words to that effect. However, Mr Lacoste rejected that proposition. I accept Mr Lacoste’s evidence as to that conversation. I am satisfied that Mr Myles said words to the effect:
You make it pretty easy for me. I’ll go and see the boys and let them know. We offered you to keep him in the shed and we go back but you did not take that up.
Mr Myles, Mr Olsen, Mr Whakaruru and Mr McAllister then left the meeting.
About 30 minutes later, Mr Kazaglis and Mr Lacoste went and saw Mr Myles who was standing outside of the site delegates’ shed which Mr Whakaruru and Mr McAllister shared. Mr Olsen was also present. There was a conversation to the following effect:
Mr Kazaglis: The allegation relating to Paton would be addressed internally and if there is an issue and that isn’t information for the workforce.
Mr Myles:This has been going on for months and he does not close out issues and the HSC committee does not have any confidence in him.
Mr Lacoste:That has nothing to do with the FWBC allegations and this is new information that we will deal with separately.
Mr Kazaglis: Mick, you have to leave because you don’t have a permit in place.
The meeting then broke up and Mr Kazaglis and Mr Lacoste left and went back to their office. They decided to call a meeting of the supervisors of six subcontractors. They convened that meeting at approximately 9:00am. Mr Van der Rhede attended the meeting as well. Mr Kazaglis or Mr Lacoste read to those present a document which reiterated what Mr Kazaglis had said to the assembled workers earlier that morning. Mr Lacoste asked the assembled supervisors to arrange for their respective workers to return to work.
By 7:30am, Mr Kazaglis had asked Mr Myles to leave the site after he refused to provide details about his right of entry to the QUT project site. Mr Myles did not leave. The Queensland Police arrived at 9:50am and instructed Mr Myles to leave. Mr Myles then left together with Mr Whakaruru and Mr McAllister.
The applicant claims that the group of 70 to 80 employees who had earlier assembled in the carpark left the site and performed no work that day. As a result, work on the site was interrupted or delayed. I accept that evidence.
Mr Stephen Bedford was employed by John Holland as a supervisor. His job was to work mainly with the structural trades to co-ordinate their work. He described that he was often out on site all day working with the subcontractors, answering any of their questions, coordinating deliveries and coordinating materials in and out of the project so that public access was not impeded.
Mr Bedford gave evidence that he saw no structural trades workers at work on the QUT Project site on 12 September, 2014 although the service trades workers remained on site and continued to work.
On the afternoon of 12 September, 2014 Mr Bedford had conversations with two people, one from the subcontractor Morrow and the other from the subcontractor Johnston, both to the same effect. He told both that the site would be open the next day for work (Saturday 13 September) but they each told him that their workers would not be on site and they would not return until Monday 15 September.
I find that on 12 September, 2014 the workers that were addressed by Mr Myles left the QUT Project Site after Mr Myles addressed them and that they did not perform any work on that day.
At approximately 3:30pm on 12 September, 2014 the Fair Work Commission issued an order pursuant to s.418 of the Fair Work Act that came into effect in respect of the CFMEU, the QUT Project site and the employees working there. The order provided for each employee to immediately stop industrial action happening at the time that the order came into effect and to not recommence, engage in or threaten to engage in industrial action while the order remained in force. The CFMEU, its officers, employees and delegates were ordered to stop organising any industrial action by the employees.
13 September, 2014
On 13 September, 2014 workers in the structural trades failed to attend the site. The applicant contends that although this was a Saturday, work on the site was scheduled by John Holland to be carried out in the same manner as the weekdays prior. The usual hours of work for the site included 6:30am Saturday morning to 6:00pm Saturday evening.
Mr Bedford’s evidence was that he attended at the site on 13 September at about 5:00am and went about his normal duties. He saw no structural trades workers present, only service trades workers.
15 September, 2014
On 15 September, 2014 at about 6:30am Mr Myles, Mr Whakaruru and Mr McAllister organised a meeting in the carpark of between 15 and 30 employees who were scheduled to work on the site that day. The respondents admit that Mr Myles instructed Mr Whakaruru and Mr McAllister to convey to the relevant employees that it was a meeting that they were expected to attend. The applicant alleges that thereafter at around 6:45am to 7:00am Mr Myles addressed a group of about 15 – 20 employees assembled in the carpark for approximately 15 minutes.
All respondents also admit that at approximately 9:00am a second meeting was organised by Mr Myles, Mr Whakaruru and Mr McAllister with approximately 40 employees who were scheduled to perform work on the site that day.
They also admit that at approximately 11:00am a third meeting was organised by Mr Myles, Mr Whakaruru and Mr McAllister with approximately 15 – 20 employees who were scheduled to perform work on the site that day.
Mr Van der Rhede gave evidence that he saw a meeting at which structural trades subcontractors’ workers attended along with Mr Myles, Mr Whakaruru and Mr McAllister. He saw this at about 6:30am. His evidence was that Mr Myles addressed the assembled workers for a few minutes and then the employees dispersed and remained scattered throughout the carpark. They remained there for about two hours – some talking on mobile phones, some sitting in cars, and others sitting or standing on grassed areas. During this time neither Mr Myles, Mr Whakaruru, nor Mr McAllister addressed the employees. He said that they stayed that way until another group of structural trades workers arrived in the carpark and the first group then left. The implication from his evidence is that they returned to work.
Mr Van der Rhede observed Mr Myles address groups of workers from the structural trades subcontractors in the following order:
a)East Coast, Morrow and Johnston (approx. 7:00am to 8:20am);
b)OneForm and Waco (approx. 8:30am to 10:30am); and
c)East Coast and Morrow (approx. 10:30am to 12:30pm).
According to Mr Van der Rhede’s observations, Mr Myles would address each group for a couple of minutes and then the group would disperse into the carpark and the members of the group would remain there for the periods set out in the previous paragraph and until the next group arrived.
At about 12:30pm Mr Van der Rhede observed the workers from OneForm, Johnston and Waco join with the other workers from East Coast and Morrow. Mr Van der Rhede observed this gathering to remain in the carpark until about 1:30pm.
Mr Van der Rhede observed that Mr Whakaruru and Mr McAllister were organising each group of workers to move to the carpark. According to Mr Van der Rhede no productive work was carried out by the structural trades workers during this period. There was no challenge to Mr Van der Rhede’s evidence about these matters.
Mr Bedford also made the same observations. He was not challenged about his evidence concerning those observations. Mr Bedford swore that the effect of the conduct by the structural trades workers was that no or minimal productive work was accomplished and that in turn affected the productivity of the service trades workers as well as the construction program more generally. In particular, he gave evidence that a concrete pour that was scheduled to happen that day was cancelled.
Mr Lacoste arrived at work on 15 September, 2014 at approximately 6:45am. He observed workers from East Coast and Johnston gathered in and across the carpark. He also observed that Mr Myles’s vehicle was parked adjacent to the site perimeter fence. At approximately 7:30am, he went for a walk around the site and observed that the East Coast and Johnston workers were still gathered in and across the carpark.
During the course of that morning, Mr Lacoste made observations of what was occurring on the site in respect of the John Holland employees and the employees of each of the QUT Project’s structural trades. He also reviewed pre-start records kept for workplace health and safety purposes to determine which workers were on site that day.
From his observations and a review of the pre-start records, Mr Lacoste gave evidence that three John Holland employees were on the site. Of those employees, only Mr Whakaruru attended the gathering in the carpark. The following subcontractors had employees on site:
a)East Coast: He observed four East Coast employees attending the gathering in the carpark between 7:00am and 8:20am.
b)OneForm: He reviewed the OneForm pre-start records which recorded that 32 OneForm employees signed on that day, 14 start cards were completed and 33 OneForm employees were marked off on the daily register.
c)Morrow: He reviewed the Morrow pre-start records which recorded that Morrow employees did not submit their pre-start records and no Morrow employees had been marked in the daily register as having attended the site that morning. However, seven Morrow employees were on the site that morning.
d)Johnston: He reviewed the Johnston pre-start records which recorded that there were seven Johnston employees marked off in the daily register.
e)Waco: He reviewed the Waco pre-start records. Waco did not submit its pre-start records. No Waco employee had been marked in the daily register as having attended the site that morning although five Waco employees were, in fact, on the site that morning.
f)Structural Systems: He reviewed the Structural Systems pre-start records. No Structural Systems employees had been marked in the daily register as having attended the site that morning. However, two Structural Systems employees were on site that morning performing their work. They left the site when their work was completed.
g)Specialised Concrete Pumping: He reviewed the Specialised Concrete Pumping pre-start records. No Specialised Concrete Pumping employees had been marked in the daily register as having attended the site that morning. Four Specialised Concrete Pumping employees were on site that morning.
h)Precision: He reviewed the Precision pre-start records which recorded that there were 12 Precision Interior employees marked off in the daily register.
i)Casa: He did not observe any Casa employees on site that day.
16 September, 2014
On 16 September, 2014 employees who were scheduled to work on the site assembled again in the carpark. The applicant alleges and the respondents deny, that at 6:30am Mr Myles addressed the assembled employees for approximately 15 minutes who then dispersed and remained scattered throughout the carpark for approximately two hours.
Mr Van der Rhede’s evidence was that he observed groups of structural trades workers gather together in the carpark in a “similar manner to the previous day”. He says that they were addressed at times by Mr Myles “in a similar fashion to how they had been addressed by” him the previous day. Mr Van der Rhede was not challenged about this evidence. I accept it.
Mr Bedford again made similar observations when he arrived at work. He saw that from approximately 6:30am, groups of QUT Project structural trades subcontractor workers gathered together in the carpark in rolling stoppages, addressed at times by Mr Myles, in a similar way to how they had been addressed the previous day. According to Mr Bedford, a concrete pour for that day was cancelled as a consequence, but only after the concrete trucks had arrived on site.
Mr Kazaglis arrived for work at the QUT Project at approximately 6:30am. His evidence is that at approximately 6:33am, whilst he was standing at the site front gate, he saw Mr Myles standing at the end of the carpark adjacent to the site. He also saw workers from ECC, Morrow and Johnston walk to the end of the carpark where Mr Myles was standing. It appeared to Mr Kazaglis that Mr Myles was about to conduct a meeting with those workers.
A few minutes later, Mr Kazaglis noticed that workers from Waco also joined the meeting that was being conducted by Mr Myles in the carpark.
At approximately 6:45am, Mr Bedford told Mr Kazaglis that a Johnston supervisor had told him that workers from subcontractor OneForm would be the next workers to attend a two hour meeting with Mr Myles at 8:30am that morning.
Mr Lacoste gave evidence that at around 7:00am, Mr Van der Rhede came into his office and asked him to come and talk with Mr Myles in the site meeting room. They went to the meeting room and met with Mr Myles. Mr Whakaruru, Mr Kazaglis and Mr Bedford were also present at that meeting. According to Mr Lacoste a conversation took place to the following effect:
Mr Lacoste:What’s going on?
Mr Myles:Anyone saying that there’s any notification period apart from Precision and JHG is wrong. I just want to make that clear.
According to Mr Lacoste, Mr Myles then quoted “the relevant clause in the Enterprise Agreement” which Mr Lacoste understood to be to the consultation meetings clauses contained in the various subcontractor Enterprise Agreements. The conversation continued:
Mr Lacoste:That’s fine, provided the guys are having a meeting. Most of them are on their phones or sitting in groups in the car park, there is no meeting.
Mr Myles:Duncan [McAllister] is with them now doing workshops in small groups.
Mr Lacoste:It would be good to see some outcomes from those workshops because we might get some good learnings.
Mr Myles:It’s mainly EBA outcomes and yours isn’t due for a while - 2015 or 2016.
Mr Whakaruru: 2015.
Mr Lacoste:It’s 2016.
Mr Van der Rhede: We have a concrete pour today. We had a pre-start within a pre-start, because the first one was last Wednesday as we were pouring Thursday 11th. So the access hasn’t changed. We have concrete on the way.
Mr Bedford then got up to leave the meeting. Mr Van der Rhede then said to Mr Myles words to the effect, “Do you have anything for Steve?” A conversation to the following effect then took place:
Mr Myles:I just wanted to make it clear about the meetings.
Mr Van der Rhede: These guys are talking about Pato huh?
Mr Lacoste:I only saw what information was on the letter the other day. There are signatures on the letter but we don’t know who they are. The dispute resolution process is to get the employees together to sort it out in the first instance. We don’t know who to get together. He [Paton] is also not here to be able to talk to him about it. He is on annual leave.
Mr Van der Rhede: He is not going to be here until Thursday, Mick, and we are going around in circles. Jeff can’t talk to him.
Mr Myles:I’m sure he has a telephone. We are not asking for him to get the sack; we are asking that he has no access to induction records because I don’t care what anyone said, the only people contacted are from this job. Five people from Morrow.
Mr Whakaruru: A guy from ECC got contacted too.
Mr Myles:We’ll never change the mindset of these guys. They need some reassurance that their info isn’t handed out. It looks very bad for Hollands as this is the only site that has people contacted.
Mr Lacoste:With the inductions, Pato looks after them and so does young Michael.
Mr Myles:Can Michael look after them? We have issues put down by the Safety Committee.
Mr Lacoste:No one has put their name to it. There are a bunch of signatures and no names. So to use the dispute resolution process, we can’t even get the guys together to resolve the dispute.
Mr Myles:I am representing the guys. I will ring Col [Matthews]. I will go and see him today and see if we can resolve the issue.
Mr Van der Rhede then discussed the concrete pour that was to happen that day.
Mr Kazaglis then attended two meetings about a “24 hour pre pour meeting”. Mr Kazaglis explained in his evidence:
54. A concrete pour on “Level 6 North” at the site was scheduled to take place at approximately 7.00am that morning.
55. Prior to any concrete pour taking place, a pre-pour meeting takes place between the crane crew, the concrete pumping crew, the concreters, John Holland foremen and anyone else directly involved in the pour the day before the concrete pour takes place.
The purpose of that meeting is to ensure that appropriate consultation and coordination takes place between those involved in the concrete pour the day before the scheduled concrete pour takes place. That meeting is colloquially called the “24 hour pre-pour”.
56: The concrete pour that was scheduled to take place that morning was originally scheduled to take place on Thursday 11 September 2014. In preparation for that concrete pour, a pre-pour meeting took place on Wednesday 10 September 2014.
57. The concrete pour scheduled to take place on Thursday 11 September 2014 was abandoned due to the industrial action that was occurring on the QUT Project that day and was rescheduled to take place on Friday 12 September 2014.
58. The concrete pour scheduled to take place on Friday 12 September 2014 was also abandoned due to the industrial action that was occurring on the QUT Project that day and was rescheduled for Monday 15 September 2014.
59: This was the concrete pour that had been scheduled to take place on Monday 15 September 2014 but that was abandoned.
The first meeting occurred at approximately 7:25am with Mr McAllister, Mr Whakaruru, Mr Van der Rhede and Mr Bedford in Mr Van der Rhede’s office. The meeting ended without the issue of concern to Mr McAllister and Mr Whakaruru being resolved.
At approximately 7:45am, Mr Whakaruru and Mr McAllister returned to Mr Van der Rhede’s office and wanted to discuss the validity of the 24 hour pre-pour meeting that occurred on Wednesday 10 September, 2014 again. Mr Kazaglis was also present at this meeting. It is unclear what was resolved, if anything.
At approximately 9:05am, Mr Kazaglis walked out to the front gate of the site and observed OneForm and SCP workers standing at the far end of the carpark. He could also see Mr McAllister and Mr Whakaruru in the carpark and Mr Myles standing at the far end of the carpark. He estimates that there were approximately 40 workers in the carpark. It did not appear to him that any meeting was taking place as they were not being addressed as a single group by anyone.
According to the pleadings, the parties agree that at around 9:00am, Mr Myles, Mr Whakaruru and Mr McAllister organised a meeting of approximately 40 employees scheduled to work on the site that day. The applicant alleges and the respondents deny, that Mr Myles addressed the assembled employees for approximately 15 minutes, after which they dispersed and remained scattered throughout the carpark for approximately two hours. However, the evidence does not establish that Mr Myles addressed the assembled workers for 15 minutes or at all.
Subsequently, Mr Kazaglis advised Mr Bedford to cancel the concrete pour scheduled for that morning because it was clear to him that due to the fact the workers had left the site and were in the carpark that morning, it would not be possible to continue with the concrete pour that day.
According to Mr Van der Rhede, Mr Bateman attended the site at approximately 9:20am. After his arrival, Mr Bateman, three safety committee members responsible for the service trades on the site and Mr Van der Rhede carried out an inspection of items that were on a safety list to ensure they had been attended to and finalised.
After attending to inspection of the safety issues, Mr Bateman came into Mr Kazaglis’s office and they had a conversation about the CFMEU and about the activities occurring on the site. The conversation included Mr Paton and the attitude of the workers towards him.
At approximately 11:00am, Mr Van der Rhede and Mr Bateman went to the site carpark. When they arrived at the carpark, Mr Van der Rhede observed approximately 35 OneForm workers sitting around and scattered across the carpark. Mr Myles was standing in amongst the OneForm workers and when he saw Mr Van der Rhede and Mr Bateman, he came across to where they were.
According to Mr Van der Rhede’s evidence, CFMEU organiser Eddie Bland was with Mr Myles. Mr Bland was talking on his mobile phone, came over to Mr Van der Rhede, shook his hand and then walked away still talking on his mobile phone. Mr Van der Rhede left Mr Bateman, Mr Myles and Mr Bland and walked off to his site office. As he did so, he observed Mr McAllister and Mr Whakaruru coming out of the site and walking towards the carpark.
At approximately 1:20pm, Mr Whakaruru came up to Mr Van der Rhede in his site office and asked about what happened with the “induction records”. According to Mr Van der Rhede the induction records Mr Whakaruru was referring to were related to the incidents concerning the provision of workers’ information to the FWBC and that they had been provided to the FWBC by Mr Paton.
Mr Whakaruru and Mr Van der Rhede had a conversation to the following effect:
Mr Van der Rhede: Look, being a John Holland employee, I let Michael Sawyer do the inductions. I’ll get Michael to come out and explain it to you.
Mr Whakaruru: What’s the outcome with Pato?
Mr Van der Rhede: I reported it to Jeff but can only come back to you when he is on site. Pato’s not around.
Mr Whakaruru: If Mick comes back around 2 o’clock, will you make yourself available?
Mr Van der Rhede: Yes.
According to Mr Van der Rhede, Michael Sawyer is John Holland’s safety trainee advisor who carried out site inductions on the QUT Project. He was a new graduate.
At approximately 1:30pm, Mr Whakaruru, Mr Sawyer and Mr Van der Rhede had a meeting during which Mr Sawyer explained to Mr Whakaruru what his process was in conducting site inductions on the QUT Project.
The parties agree that at around 2:00pm another meeting occurred between Mr Van der Rhede and others from John Holland and Mr Myles, Mr Whakaruru and Mr McAllister. They also agree that on this occasion Mr Myles asked when Mr Paton (who was then on leave) would be returning to the site and whether he would continue carrying out inductions for site employees. Upon being told that someone other than Mr Paton would perform that function, Mr Myles said words to the effect:
It looks like it might be business as usual in the morning if you do that.
Wednesday 17 September 2014
On Wednesday, 17 September, after meeting with Mr Myles in the carpark at about 6:30am, the structural trades workers returned to work and the concrete pour postponed from the previous days took place.
The work on the QUT project site resumed and continued as usual.
9 October, 2014
On 9 October, 2014 at around 6:00am Mr Whakaruru and Mr McAllister entered Mr Van der Rhede’s office at the QUT project site and told him that a meeting was being held at 6:30am in the carpark regarding Mr Paton. The issue was that Mr Paton had attended a safety committee meeting the previous day and he had participated in a safety hazards inspection walk with the site safety committee. Mr Van der Rhede knew there to be bullying and harassment allegations against Mr Paton from other members of the safety committee.
At around this time, Mr Griffin arrived on site and together with Mr Whakaruru and Mr McAllister, organised a meeting in the carpark of approximately 70 employees scheduled to work on the site that day. Mr Van der Rhede recognised the workers as workers from the structural and fit-out trades on the site.
At around 6:30am, Mr Griffin addressed the group of employees.
At around 7:00am, Mr Whakaruru, Mr McAllister and Mr Griffin met with Mr Lacoste, Mr Kazaglis and Mr Van der Rhede. The most detailed account of the relevant parts of this meeting is given by Mr Lacoste:
Mr Griffin:Why has John Holland broken its promise about Ian Paton? Why is he onsite this week?
Mr Kazaglis: The facts are that Ian Paton is a John Holland employee and is required to perform PSA (Project Safety Advisor) duties on the project. What is the issue?
Mr McAllister: The safety committee has said that they have no faith and trust in Ian Paton and he doesn’t fit - that’s the issue. Why can’t Michael [Sawyer] be the one in control? He’s done safety training even though he is a graduate.
Mr Lacoste:Why can’t you guys then talk with Michael and leave Ian out of it? It sounds like you have a personal vendetta against Ian. Ian is a John Holland employee. We internally investigated the allegations against him and the findings of that investigation are protected under the Privacy Act. Those findings stay with John Holland and are not for the safety committee.
Mr McAllister: You can say it’s personal, but there are 140 guys out there who have no faith in Ian.
Ms Lacoste:Ian has been onsite for three days and nobody has raised any issue about him with me. It is not until your return to the site that there is now an issue.
Mr McAllister: There was an issue but I wasn’t here. I also wasn’t present yesterday morning for the HSC [Safety Committee] walk or committee meeting. You can say it’s me ....
Lacoste:I’m not saying it’s just you (but it seems that) everyone must be steering through you then Duncan.
Mr Griffin:It comes back to the commitments that were made, not being in place anymore. The [Safety] committee had a vote confidence in “Pato”. You say that an investigation has been done internally and closed out - that’s John Holland’s privacy to decide what information to give or not give. We need to get the committee in here. Right now we don’t have a functioning safety committee. If we can’t make a decision between us then let’s get the guys in here.
Mr Kazaglis: Why are the guys “sat down”?
Mr McAllister: There is no functioning safety committee.
Mr Kazaglis: Is there any imminent risk to safety? Was any imminent risk to safety raised yesterday?
Mr Lacoste:Everything raised on the list was closed out except the one Waco item.
Mr Griffin:There is still the issue with the possum. A guy got scratched and there is possum shit. No paperwork has been given to the committee.
Mr Kazaglis: We have Pete the possum man coming to the site this morning.
Mr Whakaruru: This has been going on for 6 weeks and it is still not resolved. That’s the issue with no confidence.
Mr McAllister: The QWHS inspection had items for ages that had not been closed out. Simple items like a sign on a fence.
There was then some debate about what had been “closed out” and what remained outstanding.
The conversation continued:
Mr Griffin:We want the safety committee to talk to you.
Mr Kazaglis: We don’t understand why everyone is sitting down out there as there is no imminent safety risk.
Mr Griffin:My boys are on a two hour clause. They are waiting on discussions out of this meeting and the committee, so my boys are under a 2 hour meeting clause. So can you send a group text to meet here at 7.40?
Mr Lacoste swears that no notice was provided by the CFMEU or by Mr Griffin on this occasion of the meeting pursuant to the “2 hour clause”.
At the end of the meeting, a meeting of the Safety Committee was called, for 7:45am that morning. There was relevant conversation at the Safety Committee meeting, recorded by Mr Lacoste as follows:
Mr Griffin:We’ve brought the boys in to hear what management has to say about the change in commitment that was given in relation to Ian Paton: that Ian was not to be on the committee; walks and inductions. John Holland isn’t running a functioning committee. No consultation was given to the HSC about the changes. John Holland are saying that they have performed an internal investigation and that everything has been closed out. That information they feel they don’t need to pass on from the investigation.
Lacoste:We don’t have to under the Privacy Act. It would be the same if any of you guys were being managed by your employer - they wouldn’t have to pass that onto us. It is being dealt with us internally.
Mr Griffin:That is what John Holland are saying guys. You guys are saying that issues aren’t being closed out. A guy talked to me this morning about an issue with a possum that hasn’t been closed out. As far as I’m concerned it sounds like there is no confidence from the workers.
Lacoste:Why wasn’t this raised in yesterday’s committee? Everyone I spoke to said that the meeting went well.
Mr Griffin:People won’t always tell management everything.
Mr Kazaglis: There was no issue raised yesterday when Ian attended the health and safety committee walk and meeting and we had a drill fire evacuation and that was a success. Ian is here as a normal safety committee member. I will continue to chair the safety meetings, or Jeff in my absence. Closing out safety issues does not lie on just John Holland shoulders, everyone has a responsibility to close out these issues.
Mr Lacoste did not stay for the whole meeting. He left the meeting between 8:00am and 8:10am. He walked to the local coffee shop and on the way witnessed a large group of workers in the carpark, the majority of whom were wearing uniforms. He observed a number of workers wearing red OneForm shirts and he observed other workers wearing orange and yellow hi-viz shirts. He did not see anyone addressing the workers as a group. The workers appeared to be dispersed and engaged in separate activities. He saw some that were talking on their mobile telephones, some who were sitting around in various locations of the carpark and others who were sitting in the lunch sheds located directly opposite the carpark.
Mr Kazaglis gave evidence that at around 11:00am, Mr Griffin and Mr Whakaruru attended his office on site and said words to the effect:
We were wanting to know what John Holland could do to resolve the Ian Paton issue and see if he [Mr Paton] could be removed from the Project.
Mr Griffin then said words to the effect:
The Boys have decided to sit this out until there is a resolution.
By around 2:30pm many of the workers who had assembled in the carpark had left the site while others remained dispersed throughout the carpark.
10 October, 2014
On 10 October, 2014 the applicant alleges that Mr Whakaruru, Mr McAllister and Mr Griffin began organising another carpark meeting with employees scheduled to work that day. At 6:30am, Mr Griffin addressed these employees. The meeting lasted until 7:15am at which point the employees returned to work at the site.
At about 7:30am, Mr Kazaglis had a meeting with Mr Whakaruru, Mr McAllister and Mr Griffin. Also present were Mr Van der Rhede, Mr Lacoste and Mr Bateman. Mr Kazaglis’s evidence is that Mr Griffin said words to the effect:
The workers have had a meeting in the carpark and this is what has been decided going forward ... The workers understand that Hollands have done their investigation into Paton and all that, that’s fine, but going forward the guys will not acknowledge Paton on site. If he asks them to put their glasses on, they will, but they won’t talk back.
Secondly any allegation of bullying or harassment by Paton will be tabled to members of the safety committee and to John Hollands via the safety committee.
After the meeting ended, Mr Kazaglis reported to Mr Matthews what Mr Griffin had said. Subsequently, on Mr Matthews’s instructions, Mr Kazaglis responded to Mr Griffin in a telephone call. They had the following conversation:
Mr Kazaglis: This condition is unacceptable to John Holland as it is hindering him [Mr Paton] in his normal duties.
Mr Griffin:This is what the workforce have decided to do, if he speaks with a guy about a faceshield, the worker will put the faceshield on, but will not acknowledge him in conversation.
At 8:00am, there was a meeting between Mr Van der Rhede, Mr Kazaglis, Mr McAllister and Mr Whakaruru outside of the delegates’ shed on site during which the following conversation occurred:
Mr Kazaglis: I have spoken with Kevin Griffin and advised him that this condition is unacceptable to John Holland as it is hindering him in his normal duties. [Mr Griffin] has confirmed to me that this is not a CFMEU condition, but was from the workforce and that I had been asked to make it clear to you that that is the case.
Mr McAllister: The workforce are the ones who have driven this issue from the start following Hollands being unable to manage it. It is them who have decided that he will be acknowledged for his safety advice and compliance with safety rules, but they won’t communicate with him.
Mr Kazaglis: Fine, as long as we know it is not a direction from the CFMEU.
According to Mr Kazaglis, Mr McAllister and Mr Whakaruru both confirmed that it was a “workforce decision”.
Although the respondents deny these matters in their amended defence, Mr Kazaglis was not challenged on his evidence and I accept it.
The alleged contraventions
The contraventions alleged by the applicant against each of the respondents fall into three categories: unprotected industrial action (s.417 of the Fair Work Act), contravening an order not to organise industrial action (s.421 of the Fair Work Act), and coercion (s.355 of the Fair Work Act). Separate contraventions are alleged to have occurred on different days. For ease of reference, I summarise the allegations against each respondent as follows:
a)Mr Myles:
i)Unprotected industrial action: The applicant alleges that Mr Myles contravened s.417 of the Fair Work Act by organising unprotected industrial action on four separate occasions, namely:
1. 11 September, 2014;
2. 12 September, 2014 (also includes the alleged industrial action that occurred on 13 September, 2014);
3. 15 September, 2014; and
4. 16 September, 2014;
ii)Coercion: The applicant alleges that Mr Myles contravened s.355 of the Fair Work Act on three separate occasions, namely:
1. 12 September, 2014;
2. 15 September, 2014; and
3. 16 September, 2014;
iii)Contravening an order not to organise industrial action: The applicant alleges that Mr Myles contravened s.421 of the Fair Work Act on two separate occasions, namely:
1. 15 September, 2014; and
2. 16 September, 2014;
b)Mr Whakaruru and Mr McAllister:
i)Unprotected industrial action: The applicant alleges that Mr Whakaruru and Mr McAllister each contravened s.417 of the Fair Work Act by organising and engaging in unprotected industrial action on six occasions, namely:
1. 11 September, 2014;
2. 12 September, 2014;
3. 13 September, 2014 (confined to an allegation that they each organised unprotected industrial action on that day but did not engage in it);
4. 15 September, 2014;
5. 16 September, 2014; and
6. 9 October, 2014;
ii)Coercion: The applicant alleges that Mr Whakaruru and Mr McAllister contravened s.355 of the Fair Work Act on five separate occasions, namely:
1. 12 September, 2014;
2. 15 September, 2014;
3. 16 September, 2014;
4. 9 October, 2014; and
5. 10 October, 2014;
iii)Contravening an order not to organise industrial action: The applicant alleges that Mr Whakaruru and Mr McAllister contravened s.421 of the Fair Work Act on three separate occasions, namely:
1. 15 September, 2014;
2. 16 September, 2014; and
3. 9 October, 2014;
c)Mr Griffin:
i)The applicant alleges that Mr Griffin contravened s.417 (organising unprotected industrial action), s.355 (coercion) and s.421 (contravening an order not to organise industrial action) on 9 October, 2014. The applicant alleges that Mr Griffin further contravened s.355 of the Fair Work Act on 10 October, 2014. This amounts to a total of six contraventions.
d)Fifth respondent: The applicant relies on s.793 of the Fair Work Act to fix the CFMEU with the conduct of Mr Myles, Mr Whakaruru, Mr McAllister and Mr Griffin.
The onus and burden of proof
The respondents’ submissions emphasised that the applicant bears the onus of proof in this case in respect of the allegations that he makes. As can be appreciated from the factual matters that I have just set out, there is little or no direct evidence that bears on many of the matters that inform a decision about whether the alleged contraventions were committed by the respondents. The applicant acknowledges that the matter is one of inference.
Section 140 of the Evidence Act 1995 (Cth) provides:
140 Civil proceedings: standard of proof
(1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence; and
(b) the nature of the subject‑matter of the proceeding; and
(c) the gravity of the matters alleged.
It is well accepted that the standard of proof referred to in s.140(2) of the Evidence Act is a re-statement of the standard of proof formulated by Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336: Liquor Hospitality and Miscellaneous Union v Arnotts Biscuits Ltd (2010) 188 FCR 221; 198 IR 143 at [13]. In Briginshaw , Dixon J observed (at 362):
But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters “reasonable satisfaction” should not be produced by inexact proofs, indefinite testimony, or indirect inferences.
The contraventions alleged are contraventions of civil remedy provisions of the Fair Work Act. They are, accordingly, properly to be regarded as “quasi-criminal”: Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (No 3) [2002] ATPR 41-901 at [53]; BHP Coal Pty Ltd v Construction, Forestry, Mining and Energy Union (2013) 239 IR 363 at [68]-[69]. That is a matter which very much bears upon the standard of proof having regard to s.140 of the Evidence Act. As in the case of any finding concerning what is described as “quasi-criminal” behaviour, findings as to a contravention of the Fair Work Act are not findings to be made lightly.
The question of whether the applicant has discharged the relevant standard of proof is inextricably bound up with the principles relating to the drawing of inferences from facts as found. In Bradshaw v McEwansPty Ltd (1951) 217 ALR 1 the High Court discussed the question of the drawing of inferences in the following terms (at p.5):
But this is a civil and not a criminal case. We are concerned with probabilities, not with possibilities. The difference between the criminal standard of proof in its application to circumstantial evidence and the civil is that in the former the facts must be such as to exclude reasonable hypotheses consistent with innocence while the latter you need only circumstances raising a more probable inference in favour of what is alleged. In questions of this sort where direct proof is not available it is enough in the circumstances appearing in the evidence give rise to a reasonable and definite inference: they must do more than give rise to conflicting inferences of equal degrees of probability so that the choice between them is mere matter of conjecture (see per Lord Robson, Richard Evans & Co Ltd v Astley [1911] AC 674 at 687). But if circumstances are proved in which it is reasonable to find a balance of probabilities in favour of the conclusion sought then though the conclusion may fall short of certainty it is not to be regarded as a mere conjecture or surmise: cf per Lord Loreburn, above, at 678.
…
All that is necessary is that according to the course of common experience the more probable inference from the circumstances that sufficiently appear by evidence or admission, left unexplained, should be that the injury arose from the defendant’s negligence. By more probable is meant no more than that upon a balance of probabilities such an inference might reasonably be considered to have some greater degree of likelihood.
The respondents also pointed out that the applicant had failed to call any number of witnesses who might have been able to give direct evidence by what was said by the first, second, third or fourth respondents on the relevant occasions. The inferences that might be drawn from the failure to call a witness who might be supposed to be able to give relevant evidence was dealt with in Jones v Dunkel (1959) 101 CLR 298. The effect of the decision in that case, in the context of an industrial matter such as the present, was the subject of explanation in Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2010) 187 FCR 293 where, at [47], Barker J said:
It is often suggested that the finer points of the “rule” in Jones v Dunkel are not well understood. Cross on Evidence (8th Australian Ed, 2010) by JD Heydon says there are at least nine. I adopt the learned author’s convenient summary of four of those points (without reciting underlying authority) that are relevant to this proceeding:
• The unexplained failure by a party to give evidence, to call witnesses or to tender documents or other evidence or produce particular material to an expert witness may (not must) in appropriate circumstances lead to an inference that the uncalled evidence or missing material would not have assisted that party’s case: Cross on Evidence at [1215], p 40.
• While the rule in Jones v Dunkel permits an inference that the untendered evidence would not have helped the party who failed to tender it, and entitles the trier of fact to take that into account in deciding whether to accept any particular evidence which relates to a matter on which the absent witness could have spoken, and the more readily to draw any inference fairly to be drawn from the other evidence by reason of the opponent being able to prove the contrary had the party chosen to give or call evidence, the rule does not permit an inference that the untendered evidence would in fact have been damaging to the party not tendering it. The rule cannot be employed to fill gaps in the evidence, or to convert conjecture and suspicion into inference. Nor does the rule prevent any inference favourable to the party who has failed to call the witness being drawn: other evidence may justify the drawing of the inference: Cross on Evidence at [1215], p 42.
• The rule only applies where a party is required to explain or contradict something. What a party is required to explain or contradict depends on the issues in the case as thrown up in the pleadings or by the course of evidence in the case. No inference can be drawn unless evidence is given of facts requiring an answer. If there is no issue between the parties on a matter, there is nothing to answer. If there is an issue between them but the party bearing the burden of proof has tendered no evidence of it, the opponent is not required to answer: Cross on Evidence at [1215], p 42.
• The most difficult aspect of the rule turns on the failure to call non‑party witnesses. It is easy to apply the principle where it is the party who fails to give evidence. But the rule cannot be applied to the non‑calling of the witness unless it would be natural for the party to call the witness or the party might reasonably be expected to call a witness, or a missing witness would be expected to be called by one party rather than another: Cross on Evidence at [1215], p 43 – 44.
The statutory framework
The phrase industrial action is defined in s.19 of the Fair Work Act as follows:
(1) Industrial action means action of any of the following kinds:
(a) the performance of work by an employee in a manner different from that in which it is customarily performed, or the adoption of a practice in relation to work by an employee, the result of which is a restriction or limitation on, or a delay in, the performance of the work;
(b) a ban, limitation or restriction on the performance of work by an employee or on the acceptance of or offering for ·work by an employee;
(c) a failure or refusal by employees to attend for work or a failure or refusal to perform any work at all by employees who attend for work;
(d) the lockout of employees from their employment by the employer of the employees.
Note: In Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v The Age Company Limited, PR946290, the Full Bench of the Australian Industrial Relations Commission considered the nature of industrial action and noted that action will not be industrial in character if it stands completely outside the area of disputation and bargaining.
(2) However, industrial action does not include the following:
(a) action by employees that is authorised or agreed to by the employer of the employees;
(b) action by an employer that is authorised or agreed to by, or on behalf of, employees of the employer;
(c) action by an employee if:
(i) the action was based on a reasonable concern of the employee about an imminent risk to his or her health or safety; and
(ii) the employee did not unreasonably fail to comply with a direction of his or her employer to perform other available work, whether at the same or another workplace, that was safe and appropriate for the employee to perform.
(3) An employer locks out employees from their employment if the employer prevents the employees from performing ·work under their contracts of employment without terminating those contracts.
Note: In this section, employee and employer have their ordinary meanings (see section 11).
As to the taking of unprotected industrial action, s.417 of the Fair Work Act relevantly provides:
(1) A person referred to in subsection (2) must not organise or engage in industrial action from the day on which:
(a) an enterprise agreement is approved by the FWC until its nominal expiry date has passed; or
(b) a workplace determination comes into operation until its nominal expiry date has passed;
whether or not the industrial action relates to a matter dealt with in the agreement or determination.
Note: This subsection is a civil remedy provision (see Part 4-1).
(2) The persons are:
(a) an employer, employee, or employee organisation, who is covered by the agreement or determination; or
(b) an officer of an employee organisation that is covered by the agreement or determination, acting in that capacity.
Subject to some qualifications not presently relevant, no action lies under any law in force in a State or a Territory in relation to any industrial action that is protected industrial action: s.415 of the Fair Work Act. There is no suggestion in the present case that the actions complained of by the applicant, if they amounted to industrial action, are protected industrial action for the purposes of the Fair Work Act.
Section 418 of the Fair Work Act provides that the Fair Work Commission must order that industrial action by employees stop. It provides:
418 FWC must order that industrial action by employees or employers stop etc.
(1) If it appears to the FWC that industrial action by one or more employees or employers that is not, or would not be, protected industrial action:
(a) is happening; or
(b) is threatened, impending or probable; or
(c) is being organised;
the FWC must make an order that the industrial action stop, not occur or not be organised (as the case may be) for a period (the stop period) specified in the order.
Note: For interim orders, see section 420.
There is no suggestion here that the order made by the Fair Work Commission on 12 September, 2014 that purports to be an order under s.418 of the Act was not properly made and did not bind the parties to it.
Section 421 of the Fair Work Act relevantly provides:
(1) A person to whom an order under section 418, 419 or 420 applies must not contravene a term of the order
Note: This subsection is a civil remedy provision (see Part 4-1).
(2) However, a person is not required to comply with an order if:
(a) the order is an order under section 418, or an order under section 420 that relates to an application for an order under section 418; and
(b) the industrial action to which the order relates is, or would be, protected industrial action.
Coercion is dealt with in s.355 of the Fair Work Act. Relevantly, that section provides:
A person must not organise or take, or threaten to organise or take, any action against another person with intent to coerce the other person, or a third person, to:
(a) employ, or not employ, a particular person; or
(b) engage, or not engage, a particular independent contractor; or
(c) allocate, or not allocate, particular duties or responsibilities to a particular employee or independent contractor; or
(d) designate a particular employee or independent contractor as having, or not having, particular duties or responsibilities.
Note: This section is a civil remedy provision (see Part 4-1),
Industrial action – 11, 12, 13 September, 2014
I will deal with the events of 11 and 12 September, 2014 separately to the events of 13 September, 2014. I will also deal with the position of Mr Whakaruru and Mr McAllister separately to the position of the subcontractors’ workers.
The respondents argue that I should not make a finding that any worker engaged in industrial action, unprotected or otherwise, because there is no evidence at all about the requirements imposed on the subcontractor workforce by their employers. That is to say, the respondents suggest that it is possible that none of the subcontractors’ workers were required to perform any work on those days by their employers and so I cannot be satisfied that they engaged in industrial action by failing to perform work. Whilst I accept that this is possible, it is such a remote possibility that I can immediately disregard it. There are a number of reasons for doing so:
a)First, that the workers attended at the Project site at all begs the question: why were they there if they were not scheduled to perform work for their respective employers? Whilst acknowledging that individual contractors were “required” to send employees to the site, the respondents argue that there is no evidence that would permit the Court to find that any employees were directed to work on any particular day at all. But that the workers turned up at site each morning (save for 13 September, 2014) and then departed after the holding of the meetings referred to in the evidence is strongly suggestive that the employees were there to work in accordance with the arrangements with their employers. They would not have otherwise had a right of entry to the site. The evidence is that they were observed in the crib sheds on the site and after the relevant meetings removing their personal effects from those sheds. That tends to indicate that they were there to perform work. No other purpose for their attendance was suggested by the respondents.
b)Second, the evidence shows that there was a construction program that was implemented by John Holland through its project managers who gave evidence that included the scheduling of concrete pours on particular days. It is fanciful to think that a concrete pour would be scheduled for a day when there was no legitimate expectation that there would be a work force, albeit supplied by subcontractors, to complete that work;
c)Finally, and perhaps most significantly, by their amended defence filed after the close of the applicant’s case, all respondents admitted that the meeting that took place on 12 September, 2014 involved employees who were scheduled to perform work that day on the site (see paragraph 25(b) of the statement of claim and paragraph 25 of the amended defence).
Additionally, that agreement contained a provision (cl. 8.1) that permitted a union delegate reasonable time during working hours to attend to union delegate duties provided the delegate first advises “management” and the time does not “unduly affect the performance of work”. That clause applied to Mr Whakaruru. A similar, although not identical clause appears in the OneForm Pty Ltd enterprise agreement (cl.31.1) That agreement and that clause applied to Mr McAllister.
The evidence from the applicant’s witnesses is that on 15 and 16 September, 2014 the employees of certain subcontractors in the structural trades engaged in rolling stoppages of two hours duration or thereabouts. The stoppages purported to be meetings of employees under the “two-hour rule”. Mr McAllister and Mr Myles said as much in the conversations that they had with Mr Kazaglis, Mr Van der Rhede and Mr Lacoste on 16 September. I take the reference to the “two-hour rule” to be a reference to the clauses in the relevant collective agreements that I have identified above.
No notice about the holding of those meetings was given to any of the representatives of John Holland. But save for two of the agreements, none required the giving of notice before the holding of such meetings. The John Holland enterprise agreement provided for there to be at least 24 hours notice before such a meeting occurred as did the Usher & Son Commercial Coatings agreement. The Precision Interior Walls & Ceilings Pty Ltd & CFMEU Union Collective Agreement 2011 – 2015 made no provision for employees to attend union meetings or for employees to participate in union activities.
The evidence is that employees from East Coast Concrete, Morrow, OneForm, Johnston, Waco and Specialised Concrete Pumping were participating in the relevant meetings on 15 and 16 September. Whilst Mr Lacoste gave evidence that employees from Precision Interiors had signed pre-start documents on those days, there is no evidence that those employees were observed engaging in the meetings that occurred on those days. Nor is there any evidence that any employees from Usher & Son Commercial Coatings or John Holland (save for Mr Whakaruru whom I shall address later in these reasons) participated in any of the meetings. Thus, the lack of notice in respect of the meetings is of no consequence. In any event, in respect of those agreements that required notice, the relevant notice was to be given to the subcontractor employer in question. The only evidence is that John Holland’s representatives did not receive notice of the meetings.
Mr Whakaruru and Mr McAllister were entitled by the agreements that covered their employment to reasonable paid time to attend to union related matters. Mr Whakaruru had to give notice. But there was no suggestion that he had not given the appropriate notice. No form of the advice Mr Whakaruru was to give to exercise his rights under that agreement, or when that notice should be given (other than that it be given before the time is taken) is prescribed by the agreement.
The applicant argues that there were in truth, no meetings held at all and that what was undertaken was nothing more than a sham. The evidence, however, demonstrates that the issue concerning Mr Paton was a matter of ongoing concern for the workers. The conversations of 16 September reported by the applicant’s witnesses bear that out. It was a matter about which there had been considerable engagement between Mr Myles, Mr Whakaruru and Mr McAllister on the one hand and Mr Van Der Rhede, Mr Kazaglis and Mr Lacoste on the other.
But the applicant’s arguments do not appreciate the width of the “union meeting” clauses in question. The clauses which covered the subcontractors’ workers identified as participating in the relevant meetings are all in the same terms. Not only do they permit employees to attend union meetings of up to two hours but they also authorise employees to “participate in union activities”. That is a phrase of wide import. It is not limited to the participation in meetings.
The three short meetings that occurred on 15 September, and the two that took place on 16 September, followed by the workers waiting around, was, in my view conduct apt to fall within the phrase “union activities” for the purposes of the “union meetings” clauses in the relevant enterprise agreements. The evidence demonstrates that there was an issue that had been raised and which involved the fifth respondent. Its representatives, Mr Myles, Mr Whakaruru and Mr McAllister were dealing with the issue on behalf of the workers. They admit that they organised the meetings with the relevant employees. It was a union activity. The enterprise agreements did not particularise or restrict the nature of the “union activity” to be engaged in to fall within that clause. Even if the purpose of the meetings was to delay and disrupt the orderly progress of work on site, that was within the bounds of the clauses in question.
The actions undertaken by the workers on 15 and 16 September, 2014 were not apt to meet the description of industrial action for the purposes of s.19(1) the Fair Work Act because that action was excluded from being industrial action by reason of s.19(2)(a) of the Fair Work Act. Industrial action does not include action by employees that is authorised or agreed to by the employer of the employees. The employees of the structural subcontractors here who attended the meetings and participated in the union activity on 15 and 16 September, 2014 plainly did so with the agreement of their employers. The agreement is embodied in the relevant enterprise agreements. Thus, their actions on those days was not industrial action for the purposes of s.19 of the Fair Work Act: Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2017] FCA 157 at [107], followed in Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Nine Brisbane Sites Case) (No 3) [2018] FCA 564 at [43].
Did the first, second or third respondents organise the industrial action on 15 and 16 September, 2014?
I think it is clear on the pleadings that the respondents accept that they organised the meetings on 15 and 16 October, 2014. They admit on the pleadings that Mr Myles instructed Mr Whakaruru and Mr McAllister to convey to the relevant employees that there was to be a meeting and they were expected to attend. Mr Bedford and Mr Van der Rhede each depose to seeing Mr Whakaruru and Mr McAllister escorting groups of employees to the carpark throughout the day. There is no evidence about what any of the respondents said to any of the employees on 15 or 16 September, 2014. The evidence about what the respondents actually did on these days at the meetings is indeed sparse.
But their organisation of these meetings is not actionable because the activity in which the worker’s engaged did not constitute industrial action for the reasons I have just given.
Industrial action - 9 October 2014
Apart from the issue of whether there were any imminent safety concerns, there are no significant factual disputes regarding what occurred on 9 and 10 October, 2014. The respondents merely deny that what occurred on 9 October amounted to any industrial action. They say that any absence of work by the subcontractors’ workers was covered by the operative enterprise agreements which provided for two-hour “union meetings” clauses.
I accept the respondents’ argument to the extent that the workers engaged in a meeting on 9 October at about 6:30am they were entitled to attend such a meeting for up to two hours. Mr Griffin, Mr Whakaruru and Mr McAllister appear to have organised the meetings. However, the evidence suggests that on 9 October, after about 2.30pm the workers left the Project site and undertook no work on that day. That was well after the two hours for the relevant meeting had passed. Having regard to that, I am satisfied that the workers described in the evidence as having attended the meeting at 6:30am on 9 October, 2014 engaged in industrial action after the time for the holding of their meeting expired (i.e. after about 8:30am). I am satisfied that I can discount the possibility that these employees were engaged in union meetings and find that they were engaged in a refusal or failure to work within the meaning of s.19(1)(c) of the Fair Work Act.
However, whilst I am satisfied that Mr Griffin, Mr Whakaruru and Mr McAllister organised the meetings that occurred at about 6:30am on 9 and 10 October, 2014, I am not satisfied that they organised the subsequent industrial action undertaken by the workers. Indeed, it was Mr Lacoste’s evidence that Mr Griffin said on 9 October that “The Boys have decided to sit this out until there is a resolution.” That clearly indicates a decision by the workers themselves. For the same reasons I have discussed above concerning the earlier industrial action on 11 and 12 September, there is no basis to infer that Mr Griffin, Mr Whakaruru or Mr McAllister organised the industrial action that took place on 9 October. There is no evidence of what was said during the meeting. I is equally possible on the evidence that Mr Griffin attended and addressed the meeting in an effort to have the workers return to work.
In submissions, counsel for the applicant emphasised that Mr Griffin was possessive of the workers. He used terms such as “my boys” and “my members”. But there is nothing in that to indicate that Mr Griffin organised the relevant action. He was indeed his representative. His language was equally consistent with that as it was with the suggestion that he organised the relevant industrial action.
I decline to draw the inference that Mr Whakaruru, Mr McAllister or Mr Griffin organised the industrial action that took place on 9 October, 2014.
The applicant alleges that Mr Whakaruru and Mr McAllister engaged in that industrial action and thereby contravened the Fair Work Act. But I am not satisfied that is so. They were engaged on union duties as they were entitled to be according to the enterprise agreements that applied to them. There is no evidence that they left the site before they were otherwise entitled to do after their normal working day ended.
Failure to comply with the order of the Fair Work Commission
It follows from the findings I have set out above that none of the respondents failed to comply with the order made by the Fair Work Commission on 12 September, 2014. None of them organised any industrial action as the applicant alleges.
Coercion
I turn to the applicant’s allegation that the respondents contravened s.355 of the Fair Work Act by engaging in coercive conduct. It is difficult to address the allegations of coercion chronologically. The theory of the applicant’s case, it seems, is that all of the alleged work stoppages on all of the relevant days can be explained by various comments the respondents made to John Holland management concerning Mr Paton and his removal from the QUT Project. In other words, they say that each day that the work stoppages occurred amounted to coercive conduct on the part of the respondents.
Section 355 provides:
A person must not organise or take, or threaten to organise or take, any action against another person with intent to coerce the other person, or a third person, to:
(a) employ, or not employ, a particular person; or
(b) engage, or not engage, a particular independent contractor; or
(c) allocate, or not allocate, particular duties or responsibilities to a particular employee or independent contractor; or
(d) designate a particular employee or independent contractor as having, or not having, particular duties or responsibilities.
As the applicant points out, s.361(1) of the Fair Work Act provides:
If:
(a) in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and
(b) taking that action for that reason or with that intent would constitute a contravention of this Part;
it is presumed that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.
Counsel for the applicant argues that by virtue of the fact that the respondents have not put on any evidence they have not discharged the reverse onus created by s.361(1). Counsel for the respondents argues that the applicant’s own evidence displaces this presumption.
In Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2015] FCA 225 (“the Grocon case”), Tracey J affirmed that the phrase “intent to coerce” has a settled meaning and referred to authorities such as Seven Network (Operations) Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (2001) 109 FCR 378 (see page 388). An intent to coerce involves (1) an intention that pressure be exerted which, in a practical sense, will negate choice in the sense that the person is left with no realistic choice other than to comply with the demand and (2) the exertion of pressure involves conduct that is unlawful, illegitimate or unconscionable. The presumption created by s.361(1) applies to both of these elements: Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2017] FCA 157 at [50] – [51].
The presumption created by s.361(1) normally requires direct testimony from the person performing the impugned acts before the onus can be discharged: Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500 at 517. In Grocon Tracey J applied this principle to the coercion case before his Honour and concluded at [265] that:
None of the individual respondents (nor anyone else) has given evidence which would in any way serve to displace the presumption. Each of the individual respondents will, therefore, be found to have acted with the intention of coercing Grocon to act in accordance with the CFMEU demands by employing persons nominated by the Union.
The first step in an allegation such as this is to determine whether or not s.361 of the Fair Work Act is in fact engaged. In an adverse action case, the Court will normally require an applicant to prove that adverse action occurred before s.361 is engaged (see, e.g., Jones v Queensland Tertiary Admissions Centre Ltd (No 2) [2010] FCA 399 per Collier J at [10]). In a coercion case such as the present, it seems to me that the applicant must establish the non-subjective aspects of s.355 before s.361 is engaged. That is, the applicant must prove that the respondents in this case organised or took, or threatened to organise or take, any action against John Holland in order to, for example, designate a particular employee or independent contractor as having, or not having, particular duties or responsibilities. Did the respondents take any action or threaten to take any action against John Holland in order to have Mr Paton removed from the QUT project site?
Dealing with Mr Myles and Mr McAllister, in respect of 12 September, the answer must be no because I have found that neither organised the relevant industrial action that took place on that day. Mr Whakaruru engaged in industrial action on that day. He did not give evidence. But as I have set out above, there was nothing said on 11 or 12 September that suggested that, at that point, Mr Paton’s duties should be curtailed. Even though the conversation in evidence that took place on 10 September demonstrates that the respondents thought it might have been Mr Paton that divulged workers’ information, what was sought at that point was a letter from John Holland that it would not provide workers’ details to the FWBC. Section 361(1) is not engaged in respect of the allegation of coercion on 12 September, 2014 because there was no demand of the nature proscribed by s.355 of the Fair Work Act. The intent of the action was to secure a letter in certain terms from John Holland that did not impact upon Mr Paton. The applicant does not make out its case of coercion on 12 September, 2014 against any of the respondents.
The applicant alleges that Mr Myles, Mr Whakaruru and Mr McAllister contravened s.355 of the Fair Work Act on 15 and 16 September, 2014. The evidence demonstrates that on 15 September, there was no discussion between Mr Myles and anybody from John Holland or between Mr Whakaruru or Mr McAllister and anybody from John Holland. There is no suggestion that the demand for a letter from John Holland confirming that workers details would not willingly be given to the FWBC had been withdrawn or changed. There is no suggestion in the evidence that at that time any of the respondents were making demands or suggesting that Mr Paton’s responsibilities for John Holland should change. The first suggestion of that came on 16 September, 2014 in the conversation between Mr Myles, Mr Lacoste and Mr Van der Rhede (set out at [86] above). On the evidence led by the applicant that is the very first occasion upon which it was suggested by Mr Myles, or anybody else, that Mr Paton’s access to induction records should be restricted and, presumably thereby his duties curtailed in some way. In my view, it is not until this point can it be said that there is any evidence sufficient to engage s.355 of the Act. The evidence of the events up to and including the conversation to which I have just referred do not support in a prima facie way, any contravention of s.355 of the Act and s.361(1) of the Act is not engaged in respect of those matters. On the evidence, I am not satisfied that the applicant’s claim that s.355 of the Act was contravened by any of the respondents on 12 September and 15 September 2014 is made out.
I am satisfied that in respect of the applicant’s allegations that Mr Myles, Mr Whakaruru and Mr McAllister contravened s.355 on 16 September, 2014 the applicant raises a sufficient case to engage s.361(1) of the Act. So too, the applicant does in respect of its claim that Mr Griffin, Mr Whakaruru and Mr McAllister contravened s.355 on 9 October, 2014.
I am not satisfied that the applicant establishes the objective aspects of s.355 in respect of its allegation that Mr Griffin, Mr Whakaruru and Mr McAllister contravened that section on 10 October, 2014. I reach that view because on the evidence, there is no suggestion that either of those three gentlemen took any action at all against John Holland with a view to John Holland allocating or not allocating particular duties or responsibilities to Mr Paton. All that occurred on 10 October, 2014 was Mr Griffin informing John Holland management that the workers would follow Mr Paton’s directions but would not talk to him. It was not suggested in argument that they were obliged to talk or in any other way interact with Mr Paton other than to follow his directions.
It follows from those findings that the onus is on the respondents to show that:
a)the purpose or reason for the union activity on 16 September, 2014 and calling the meeting on 9 October, 2014 was not to have John Holland allocate or not allocate particular duties or responsibilities to Mr Paton;
b)in taking the actions on those two days they did not have the intention to coerce John Holland; or
c)in taking the action on those two days, the pressure they applied to John Holland was not unlawful, illegitimate or unconscionable.
The applicant’s evidence establishes, in my view, that the action that was taken after the conversation on 16 September, 2014 recorded in [86] above was taken for the purposes of having John Holland allocate or not allocate particular duties or responsibilities to Mr Paton. That seems to have been the purpose of those meetings on that day. Those meetings were organised by Mr Myles, Mr Whakaruru and Mr McAllister (see paragraph 43 of the statement of claim and paragraph 43 of the amended defence).
The purpose of the meeting that occurred on 9 October, 2014 is unclear. There is no evidence before me about what occurred at that meeting. Mr Griffin’s statements to the representatives of John Holland following that meeting suggest that the workers were waiting for a response from John Holland about Mr Paton’s involvement in the safety committee and the dissatisfaction felt by the workers with that. There was a meeting of the safety committee at about 7:45am but the issue is not resolved. The statements by Mr Griffin, reported by the applicant’s witnesses then suggest that the workers made a decision to “sit this out until there is a resolution”. That is to say, and consistent with what I have found above, the industrial action was action taken by the workers rather than by Mr Griffin, Mr Whakaruru or Mr McAllister.
The evidence establishes, in my view, that the action that was taken on 9 October, 2014 was taken so as to see a continuation of John Holland allocating or not allocating particular duties or responsibilities to Mr Paton.
The evidence does not establish that in taking the action that they took on 16 September and 9 October, the respective respondents did not intend to coerce John Holland.
However the means employed by the respondent on those two days were not unlawful, illegitimate or unconscionable. As I have set out above, the meetings that took place on 16 September, 2014 were authorised by the relevant enterprise agreements. The meeting that took place on 9 October, 2014 was also authorised by the relevant enterprise agreements. As I have set out above, I am not prepared to infer that the subsequent industrial action that took place on 9 October was organised by Mr Griffin, Mr Whakaruru or Mr McAllister as I have set out above. It is equally possible that it was simply a decision of the workers made on the day at the meeting that was organised by those gentlemen.
Accordingly, in respect of the union activity of 16 September, 2014 and the meeting of 9 October, the respondents establish that in taking the action that they did on those days the pressure it applied to John Holland was not unlawful, illegitimate or unconscionable. The arguments made by the applicant were directed to whether the respondents’ conduct was unlawful. There was no submission and no suggestion the conduct might otherwise be seen as illegitimate or unconscionable.
It follows, that the applicant does not make out any of its claims that the respondents have contravened s.355 of the Fair Work Act.
Vicarious liability of the CFMEU
I have found that on 11 and 12 September, 2014 Mr Whakaruru engaged in industrial action in contravention of s.417 of the Fair Work Act. But I have found that he did so on the basis that he was one of the workers who decided to withdraw their labour on those days. In doing so, it seems to me that Mr Whakaruru was acting in his own capacity as an employee of John Holland rather than as a delegate or officer of the CFMEU. Say, he was not engaging in that conduct on behalf of the CFMEU and so in my view, the fifth respondent is not liable for Mr Whakaruru’s contraventions of s.417 by reason of ss.793(1) or (2) of the Fair Work Act.
Conclusion
The applicant succeeds in establishing that Mr Whakaruru contravened s.417 of the Fair Work Act on 11 September and 12 September, 2014 when he refused to perform any work on those days as I have indicated above. The applicant’s claims against each of the other respondents, for the reasons that I have set out above, however, do not succeed.
It is appropriate to make declarations recording the findings against Mr Whakaruru. The applicant seeks the imposition a penalty. Directions for an appropriate penalty hearing should be made. Accordingly, the parties should confer on an appropriate form of declaration and directions to move matter towards a penalty hearing.
I certify that the preceding two hundred and twelve (212) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 14 February 2019.
Associate:
Date: 14 February, 2019
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