Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union
[2015] FCA 225
•17 March 2015
FEDERAL COURT OF AUSTRALIA
Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2015] FCA 225
Citation: Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2015] FCA 225 Parties: DIRECTOR OF THE FAIR WORK BUILDING INDUSTRY INSPECTORATE v CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION, JOHN SETKA, SHAUN REARDON, DEREK CHRISTOPHER, ELIAS SPERNOVASILIS, BILL OLIVER, RALPH EDWARDS, GARETH STEPHENSON and CRAIG JOHNSTON File number: VID 774 of 2012 Judge: TRACEY J Date of judgment: 17 March 2015 Catchwords: INDUSTRIAL LAW – whether respondents contravened ss 346, 348 and 355 of the Fair Work Act 2009 (Cth) – whether blockading at two construction sites taken with intent to coerce persons into complying with industrial demands made by the respondents
PRACTICE AND PROCEDURE – application of s 553 of the Fair Work Act 2009 (Cth) – where first respondent the subject of contempt proceedings in Supreme Court of Victoria
Legislation: Evidence Act 1995 (Cth)
Fair Work Act 2009 (Cth)
Fair Work (Building Industry) Act 2012 (Cth)
Fair Work (Registered Organisations) Act 2009 (Cth)
Workplace Relations Act 1996 (Cth)Cases cited: Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500 – cited
Briginshaw v Briginshaw (1938) 60 CLR 336 – applied
Bullock v The Federated Furnishing Trades Society of Australasia (No 1) (1985) 5 FCR 464 – cited
Construction, Forestry, Mining and Energy Union v Director of Fair Work Building Industry Inspectorate [2014] FCAFC 101 – applied
Construction, Forestry, Mining and Energy Union v Grocon Constructors (Victoria) Pty Ltd [2014] VSCA 261 – cited
Crescendo Management Pty Ltd v Westpac Banking Corporation (1988) 19 NSWLR 40 – cited
Director of the Fair Work Building Inspectorate v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2013] FCA 82 – cited
Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2015] FCA 47 – cited
Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2014] FCA 160 – cited
Dollar Sweets Pty Ltd v Federated Confectioners Association of Australia [1986] VR 383 – cited
Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2014] FCA 770 – cited
Fair Work Ombudsman v Maritime Union of Australia [2014] FCA 440 – approved
Fair Work Ombudsman v National Jet Systems Pty Ltd (2012) 218 IR 436 – cited
General Manager of the Fair Work Commission v Thomson [2013] FCA 380 – considered
Grocon Constructors (Victoria) Pty Ltd v Construction, Forestry, Mining and Energy Union (No 2) [2014] VSC 134 - considered
Grocon Constructors (Victoria) Pty Ltd v Construction, Forestry, Mining and Energy Union [2013] VSC 275; (2013) 234 IR 59 – cited
John Holland Pty Ltd v Construction, Forestry, Mining and Energy Union(No 2) [2014] FCA 1032 – cited
McFadzean v Construction, Forestry, Mining and Energy Union (2007) 20 VR 250 – cited
National Tertiary Education Industry Union v Commonwealth (2002) 117 FCR 114 – cited
Pearce v R (1998) 194 CLR 610 – applied
Qantas Airways Limited v Australian Licensed Aircraft Engineers’ Association (2012) 202 FCR 244 – considered
Seven Network (Operations) Limited v Communications,
Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (2001) 109 FCR 378 – cited
Sid Ross Agency Pty Ltd v Actors and Announcers Equity Association of Australia [1971] 1 NSWLR 760 – cited
State of Victoria v Construction, Forestry, Mining and Energy Union (2013) 218 FCR 172 – applied
Torquay Hotel Company Ltd v Cousins [1969] 2 Ch 106 – cited
Williams v Construction, Forestry, Mining and Energy Union (2009) 179 IR 441 – cited
Williams v Hursey (1959) 103 CLR 30 – citedDate of hearing: 12, 13, 18, 19, 21 August and 8 October 2014 Date of last submissions: 23 December 2014 Place: Melbourne Division: FAIR WORK DIVISION Category: Catchwords Number of paragraphs: 290 Counsel for the Applicant: Mr R Dalton and Mr M McKenney Solicitor for the Applicant: Ashurst Counsel for the Respondents: Ms R Doyle SC, Mr J Gurr and Mr J Fetter Solicitor for the Respondents: Slater and Gordon
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
FAIR WORK DIVISION
VID 774 of 2012
BETWEEN: DIRECTOR OF THE FAIR WORK BUILDING INDUSTRY INSPECTORATE
ApplicantAND: CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION
First RespondentJOHN SETKA
Second RespondentSHAUN REARDON
Third RespondentDEREK CHRISTOPHER
Fourth RespondentELIAS SPERNOVASILIS
Fifth RespondentBILL OLIVER
Sixth RespondentRALPH EDWARDS
Seventh RespondentGARETH STEPHENSON
Eighth RespondentCRAIG JOHNSTON
Ninth Respondent
JUDGE:
TRACEY J
DATE OF ORDER:
17 MARCH 2015
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
1.The further hearing of the application be listed at 10:15 am on 20 April 2015.
2.On or before 31 March 2015 the applicant file and serve:
(a)any affidavits on which he proposes to rely relating to the relief sought by him; and
(b)an outline of his written submissions.
3.On or before 14 April 2015 the respondents file and serve:
(a)any affidavits on which they propose to rely relating to the relief sought by the applicant; and
(b)an outline of their written submissions.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
FAIR WORK DIVISION
VID 774 of 2012
BETWEEN: DIRECTOR OF THE FAIR WORK BUILDING INDUSTRY INSPECTORATE
ApplicantAND: CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION
First RespondentJOHN SETKA
Second RespondentSHAUN REARDON
Third RespondentDEREK CHRISTOPHER
Fourth RespondentELIAS SPERNOVASILIS
Fifth RespondentBILL OLIVER
Sixth RespondentRALPH EDWARDS
Seventh RespondentGARETH STEPHENSON
Eighth RespondentCRAIG JOHNSTON
Ninth Respondent
JUDGE:
TRACEY J
DATE:
17 MARCH 2015
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
In 2012 a bitter industrial dispute arose between the Construction, Forestry, Mining and Energy Union (“the CFMEU”) and Grocon Pty Ltd and some of its wholly owned subsidiaries. It will be convenient to refer to these companies collectively as “Grocon” unless reference to a particular company is necessary. The dispute related to the demand by the CFMEU that Grocon should agree to employ persons nominated by the CFMEU to act as shop stewards on building sites controlled by Grocon. Grocon refused to employ a number of persons who had been nominated by the CFMEU.
At the time Grocon was undertaking construction work on two sites. One of them was in Lonsdale Street Melbourne and was referred to in the proceeding as the Myer Emporium Site. The other was located in McNab Avenue Footscray and was referred to as the McNab Site. In August and September 2012 CFMEU officials and members attended the sites on various days and sought to prevent vehicles and Grocon employees entering the sites. Some of these activities contravened injunctions which had been granted by the Supreme Court of Victoria. These contraventions were subsequently held to be contempts of court and substantial fines were imposed on the CFMEU for these contempts.
Contemporaneously, the applicant, the Director of the Fair Work Building Industry Inspectorate (“the Director”) commenced the present proceeding against the CFMEU and a number of named officials. The Director alleged that each of the respondents took action against Grocon with the intention of coercing it into complying with industrial demands made by and on behalf of the CFMEU. The Director contended that, in so doing, each of the respondents contravened ss 348 and 355 of the Fair Work Act 2009 (Cth) (“the Act”). One, it was alleged, had also contravened s 346. He sought relief by way of declarations, the imposition of pecuniary penalties and the payment of compensation to sub-contractors who were allegedly prejudiced by the impugned action.
THE PARTIES
The Director holds a statutory office created by s 9 of the Fair Work (Building Industry) Act 2012 (Cth) (“the FWBI Act”). He has standing to bring the present proceeding: see s 539 of the Act; ss 59A and 59C of the FWBI Act.
The CFMEU is an association of employees registered as an organisation pursuant to s 26 of the Fair Work (Registered Organisations) Act 2009 (Cth). By s 27 of that Act it is constituted as a body corporate. Its affairs are governed by Rules registered under the Act.
The second respondent, Mr John Setka, is an officer and employee of the CFMEU. At relevant times he was an Assistant Secretary of the Victoria – Tasmania Divisional Branch of the CFMEU’s Construction and General Division (“the Branch”).
The third respondent, Mr Shaun Reardon, was, at material times, an officer and employee of the CFMEU and Vice President of the Branch.
The fourth respondent, Mr Derek Christopher, was, at material times, an officer and employee of the CFMEU and an organiser of the Branch.
The fifth respondent, Mr Elias Spernovasilis, was, at material times, an officer and employee of the CFMEU and a Vice President of the Branch.
The sixth respondent, Mr Bill Oliver, was, at material times, an officer and employee of the CFMEU and Secretary of the Branch.
The seventh respondent, Mr Ralph Edwards, was, at material times, an officer and employee of the CFMEU and President of the Branch.
The eighth respondent, Mr Gareth Stephenson, was, at material times, an officer and employee of the CFMEU and an organiser of the Branch.
The ninth respondent, Mr Craig Johnston, was, at material times, a member and officer of the CFMEU and a Branch Council Member of the Branch.
THE CONTEMPT PROCEEDING
For reasons which will shortly emerge it is necessary to say something at this stage about the contempt proceedings in the Supreme Court.
In an attempt to bring to an end what it claimed were blockades of the two sites Grocon sought and obtained a series of injunctive orders from the Supreme Court. Relevantly, these injunctions restrained the CFMEU from “preventing, hindering or interfering with free access to, and free egress from [the two sites] by any person or vehicle” and from “causing, inducing, procuring or inciting any person to do or attempt to do” any of these acts. Injunctions were granted on 21 August 2012, 22 August 2012 and 28 August 2012.
Grocon alleged that the CFMEU had contravened these orders. It filed two applications in the Supreme Court alleging that the CFMEU had contravened the injunctive orders in a number of ways and at different times. Those contraventions were alleged to have occurred on 28 August 2012, 29 August 2012, 30 August 2012 and 31 August 2012 at the Myer Emporium Site and on 5 September 2012 at the McNab Site. In all, 30 separate charges were pressed.
The trial of the contempt charges proceeded before Cavanough J. His Honour found the charges proven and recorded five findings of contempt, one for each relevant day: see Grocon Constructors (Victoria) Pty Ltd v Construction, Forestry, Mining and Energy Union (2013) 234 IR 59; [2013] VSC 275. He later imposed penalties in respect of these contempts: see Grocon Constructors (Victoria) Pty Ltd v Construction, Forestry, Mining and Energy Union (No 2) [2014] VSC 134. An appeal from his Honour’s orders to the Court of Appeal was dismissed: see Construction, Forestry, Mining and Energy Union v Grocon Constructors (Victoria) Pty Ltd [2014] VSCA 261. An application by the CFMEU for special leave to appeal from the Court of Appeal’s decision was refused on 13 February 2015: see [2015] HCATrans 24.
PROCEDURAL HISTORY
Although the proceeding was commenced in October 2012, the trial did not commence until 12 August 2014. This delay occurred for a number of reasons. One was that there were a series of substantial amendments to the pleadings. The Director’s second further amended statement of claim was not filed until 20 December 2013. The CFMEU’s defence was not finally settled until 24 July 2014 and was further amended in the course of the trial, on 21 August 2014. Difficulties also arose in relation to the availability of witnesses and counsel.
Some further delay was occasioned by an application made by the CFMEU for a stay of the proceeding. The application relied on s 553 of the Act which provides that proceedings for a pecuniary penalty order for a contravention of civil remedy provisions, such as ss 348 and 355, were stayed if criminal proceedings had been commenced against the respondent for an offence and that the offence was constituted by conduct that was “substantially the same as the conduct in relation to which the order would be made.” In rejecting the application I held that proceedings for contempt were not “criminal proceedings” within the meaning of s 553 of the Act: see Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2014] FCA 770.
The CFMEU applied for leave to appeal from my decision to reject its application. A Full Court dismissed the application: see Construction, Forestry, Mining and Energy Union v Director of Fair Work Building Industry Inspectorate [2014] FCAFC 101. In doing so, however, the Full Court disagreed with my construction of the term “criminal proceedings” in s 553. The Full Court said (at [39]-[41]) that:
“39. Consistent with what the High Court said in Witham v Holloway, the CFMEU was charged with contempt in the SCV [Supreme Court of Victoria] … . The Attorney-General was joined as a plaintiff. At least from the time of the joinder of the Attorney-General, the “proceedings [were] in the public interest to vindicate judicial authority or maintain the integrity of the judicial process”: Witham v Holloway at 531. The proceedings were instituted to punish the CFMEU for failing to obey Court orders. The relief sought was that the CFMEU “be punished for contempt”: … Under the Evidence Act 2008 (Vic), proceedings are civil or criminal. A criminal proceeding is defined in that Act relevantly to mean the prosecution for an offence: sch 2 to the Evidence Act 2008 (Vic). In the SCV, the CFMEU was prosecuted for an offence (that of contempt) and the SCV proceedings were conducted to the criminal standard: see [15] above and s 141 of the Evidence Act 2008 (Vic). The CFMEU was convicted of five criminal contempts and was punished for that disobedience by the imposition of fines: … The fact that contempt proceedings are, for reasons explained in the authorities, tried summarily and not before a jury is immaterial. So too is the fact that the proceedings were commenced in the civil jurisdiction of the SCV. The fact that different procedures have been adopted for trying contempt charges does not alter the essential characteristic of the proceedings as criminal proceedings. The Director’s submission that the contempt proceedings were civil proceedings when commenced because the charge did not plead that the conduct of the CFMEU was deliberate or contumacious should also be rejected. The proceedings were criminal because Grocon and the Attorney-General were seeking convictions and punishment for offences.
40. What then was the effect of the contempt proceedings in the SCV on the proceedings before the Federal Court? From the outset, it is at least arguable that the proceedings issued by the Director in the Federal Court were stayed against the CFMEU to the extent that they sought pecuniary penalty orders: s 553(1). The SCV proceedings were criminal proceedings for an offence. Although it is strictly unnecessary to decide that the SCV proceedings were from commencement criminal proceedings for the purposes of s 553 of the FWA, the fact that five criminal convictions have been entered against the CFMEU in relation to substantially the same conduct cannot be ignored. Upon the entry of those convictions in the SCV in relation to substantially the same conduct, the proceedings in this Court against the CFMEU, to the extent that they sought pecuniary penalty orders in relation to that conduct, stood dismissed: s 553(2).
41. Those conclusions are to be understood against the background of the following additional matters. First, the Federal Court proceedings were stayed and then stood dismissed against the CFMEU, not against the named individuals in the Federal Court proceeding. Second, the Federal Court proceedings for a pecuniary penalty order were only dismissed against the CFMEU to the extent that the conduct in the Federal Court proceedings was substantially the same as the conduct which was the subject of the criminal contempts. The balance of the proceedings against the CFMEU and against the individuals remained and remains unaffected. Third, the Federal Court proceedings were stayed and then stood dismissed against the CFMEU because the Director sought the imposition of a pecuniary penalty order. Indeed, the Federal Court cannot make a pecuniary penalty order against the CFMEU for a contravention of a civil remedy provision if the CFMEU has been convicted of an offence constituted by conduct that is substantially the same as the conduct constituting the contravention of the civil remedy provision: s 552 of the FWA. As we have said, to the extent that the proceedings sought other relief against the CFMEU in relation to the conduct that was substantially the same as the conduct which was the subject of the criminal contempts, those proceedings remained unaffected.”
The hearing and determination of the application for leave to appeal delayed the start of the trial by some days.
THE EFFECT OF THE FULL COURT’S DECISION
The Director conceded that a consequence of the Full Court’s decision was that the present proceeding stood dismissed to the extent that it seeks the imposition of pecuniary penalties against the CFMEU in respect of conduct at the Myer Emporium Site between 28 and 31 August 2012 and at the McNab Site on 5 September 2012 because that conduct was substantially the same as that which led to the five convictions of the CFMEU for criminal contempt of the Supreme Court.
The Director, however, contended that the CFMEU was liable for other relief (such as declaratory relief) in respect of the impugned conduct on these days. On other relevant days the CFMEU, he submitted, was liable to the full range of remedial orders (including pecuniary penalties), available to the Court. Those other relevant days were identified in the Director’s second further amended statement of claim as being 22, 23, 25 and 27 August and 4 and 6 September 2012 at the Myer Emporium Site and 17, 18, 20 and 28 August 2012 at the McNab Site. I note in this context that, in the Director’s second further amended statement of claim reference is also made to certain threats being made on 14, 15 and 16 August 2012. As I understand the Director’s final submissions, these threats were relied on as evidence of intention rather than relevant action for the purposes of sections 346, 348 and 355. There were three alleged threats. The first threat took place on 14 August 2012 at the Myer Emporium Site. Mr Spernovasilis said to Mr Joe Brinzi, the National Occupational Health and Safety Manager, employed by Grocon that if Grocon did not come to an agreement with the union about the shop steward issue, “you could have 100 employees walk through these projects as early as next week.” The second threat occurred on 15 August 2012 when Mr David Lythgo, a member of the CFMEU, said to Mr Max McCabe, Grocon Site Manager at one of the Grocon sites, the Mirvac Yarra Edge Tower 8 Site at Southbank, words to the effect that the CFMEU was not just going to put a picket line on one of Grocon’s projects, it was going to smash all of them at the same time. The third threat occurred on 16 August 2012 when Mr Reardon said to Mr Andrew Brinzi, National Plant Manager, employed by Grocon, at the McNab Site words to the effect of “I’ll be back with a barbecue.”
The CFMEU contended that the Director’s concession was too narrowly confined. It submitted that all of the conduct alleged against it in the present proceeding, including that occurring on 28‑31 August 2012 and 5 September 2012, was part of a continuous “blockade”. The adoption of a “common sense” rather than a semantic approach (cf Pearce v R (1998) 194 CLR 610 at 622, 623) led to the conclusion that the CFMEU had been punished by the Supreme Court for all of its conduct at the Myer and McNab sites in August and September 2012. The CFMEU relied on observations of Cavanough J ([2013] VSC 275 at [355]) that all of the conduct with which he had been concerned was “inextricably bound up with the ongoing industrial dispute between the CFMEU and Grocon” and that “[i]t would be completely artificial and wrong to consider the events that occurred on each of the pleaded days in isolation from the events that occurred on the other pleaded days.”
It may be accepted that the conduct which occurred at the Myer Emporium Site on 28‑31 August 2012 and at the McNab Site on 5 September 2012 was related to the ongoing industrial dispute over the placement of CFMEU nominated shop stewards and that the conduct was “continuing and related”. It does not follow that the CFMEU was convicted and penalised by the Supreme Court for conduct which occurred on other days. Cavanough J had earlier said ([at 14]) that:
“The applicants acknowledge that many of the 30 charges are in the nature of alternatives. They submit that, in the end, there should be 10 separate findings of contempt. In my view, having regard to the substance of the matter, only one finding of contempt per day is warranted.” (Emphasis added).
Separate penalties were imposed in respect of each of the charges. No convictions were recorded or penalties imposed in relation to conduct which occurred on other days at the two sites. This is hardly surprising given that the charges did not allege contravening conduct on those other days.
In my view s 553 of the Act does not operate to stay or dismiss the claims made by the Director in this proceeding in relation to days other than those considered by Cavanough J. As the Full Court held, the Court is required to make a factual comparison with a view to determining whether the relevant criminal offence (here contempt of court) is constituted by conduct “that is substantially the same” as the conduct relied on by the Director to support his civil penalty claim against the CFMEU. The Full Court did not make a determination about whether and, if so, to what extent the relevant conduct in the two proceedings was “substantially the same”.
In Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2015] FCA 47 Mortimer J dealt with similar submissions, advanced by the CFMEU, in which the Director was seeking pecuniary penalties and other relief against the CFMEU for alleged contraventions of s 348 of the Act. At the time the application was made contempt charges arising from the same events were pending in the Victorian Supreme Court. Having examined in detail the High Court’s decision in Pearce her Honour explained (at [56]) that:
“56. I have dealt with Pearce at some length because in my opinion it demonstrates the unanimous view of the judges in that case that, whatever the circumstance in which the concept of double jeopardy is raised, the appropriate analysis is to examine the elements of the offences concerned and, through the elements, what the accused is alleged to have done. Since, as the Full Court in CFMEU v Director of Fair Work pointed out, the avoidance of double jeopardy (and the extension of the protection to civil penalty provisions) is the legislative purpose of s 553, then in my opinion it is appropriate to apply the analysis undertaken in Pearce, in determining whether the conduct constituting the “offence” of contempt is “substantially the same” as the contravening conduct alleged in this proceeding. That approach requires a comparison of the elements of each of the offence(s) in the criminal proceeding and the civil penalty provision, in order to ascertain what, in each proceeding, it is sought to punish the offender for. In this task, the facts underlying each element will need to be considered, otherwise the comparison would be hypothetical. The emphasis, however, is on what a person is alleged to have done by reference to the elements of each offence, and the elements of the civil penalty provision.”
In the present case the CFMEU has already been adjudged guilty of criminal contempt of Court. The elements of the offence were the same in each of the five counts. The conduct which was held by Cavanough J to have satisfied each of those elements was conduct which occurred on the particular day on which the contempt occurred. While similar conduct may have occurred on other days (days in respect of which the Director now seeks the imposition of pecuniary penalties) his Honour did not have regard to that other conduct when finding the CFMEU guilty of the five charges. The CFMEU never stood in jeopardy of being found liable and punished for its conduct on days other than those covered by the contempt charges.
Such an approach to the construction and application of s 553 is supported by the reasons of Jessup J in General Manager of the Fair Work Commission v Thomson [2013] FCA 380. His Honour was there concerned with the meaning and effect of s 312 of the Act. That section is in substantially similar terms to s 553. Section 312(1)(b) poses the same criterion as does s 553(1)(b), namely, that “the offence is constituted by conduct that is substantially the same as the conduct alleged to constitute the contravention.” His Honour said (at [8]) that:
“The construction for which the respondent contends does not, in my view, sit comfortably with the text of s 312 itself. Paragraphs (a) and (b) of subs (1) speak of ‘an offence’ and of ‘the offence’, in the singular. Paragraph (b) speaks of ‘the contravention’, also in the singular. Although, no doubt, the singular includes the plural in this provision, the comparison which is implicitly required by the subsection must proceed offence by offence, and contravention by contravention. That is to say, each offence with which the person concerned has been charged must be lined up with a particular alleged contravention (of the RO Act) for the purpose of determining the matter of substantial correspondence to which para (b) refers. Then, if the person is convicted of that offence, the proceedings for the order, in relation to that contravention, are dismissed: subs (2).”
In each case the criminal conduct of the CFMEU occurred on a particular day and it is that conduct which must be lined up with the contraventions alleged in the present proceeding. To the extent that there is no temporal overlap, s 553 does not operate to stay or dismiss the present proceeding.
LEGISLATION
The Director’s case was brought under three provisions of the General Protections Part – Part 3-1 of the Act. These provisions were ss 346, 348 and 355.
Section 346 relevantly provides that:
“A person must not take adverse action against another person because the other person:
(a) …
(b) …
(c) does not engage, or has at any time not engaged or proposed not to engage, in industrial activity within the meaning of paragraphs 347(c) to (g).”Section 347 contains a definition of the phrase “engages in industrial activity”. A person so engages, inter alia, if he or she does, or does not “comply with a lawful request made by, or requirement of, an individual association”: s 347(b)(iv). Relevantly, Item 7 of s 342(1) defines “adverse action” as “action that has the effect, directly or indirectly, of prejudicing the person in the persons employment or prospective employment …”
Section 348 of the Act 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 engage in industrial activity.”
The relevant parts of the definition of “to engage in industrial activity” in s 347 which were relied on by the Director in support of his case under s 348 were:
“(b) does, or does not:
(iv)comply with a lawful request made by, or requirement of, an industrial association; or
…
(e) complies with an unlawful request made by, or requirement of, an industrial association; …”Section 355 relevantly provides that:
“A person must not organise or take, or threaten to organise or take, any action against another person with intent to coerce the other person, or a third person, to:
(a)employ, or not employ, a particular person;
…
(c) allocate, or not allocate, particular duties or responsibilities to a particular employee …; or
(d)designate a particular employee … as having, nor not having, particular duties or responsibilities.”
Section 361 of the Act has application to each of these three sections. Relevantly it provides that:
“(1) 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 for that intent would constitute a contravention of this Part;
it is presumed, in proceedings arisen from the application, that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.
(2) …”
THE EVIDENCE
On 17 June 2013 directions were given by consent for evidence to be given on affidavit. As a result 24 affidavits were filed by the Director in August and September 2013. At a directions hearing, held on 5 May 2014, counsel for the respondents belatedly requested that the evidence in chief of witnesses to be called by the Director should be given orally. I directed that counsel for the respondent should identify those parts of any affidavits filed by the Director which they considered to be contentious and to so advise counsel for the Director. I further directed that the evidence so identified should be called orally. Otherwise counsel for the Director would be entitled to read the remaining (non-contentious) parts of the affidavits subject to any evidentiary objections. The oral evidence of some witnesses did not correspond, in all respects, with that given on affidavit in respect of contentious matters. In particular there were omissions which, in the absence of other evidence, meant that the Director was unable to support all of the allegations contained in the final version of his statement of claim.
The Director relied on affidavits which had been sworn or affirmed by the following witnesses:
·Mr John Van Camp, the Head of Safety Systems and Industrial Relations at Grocon.
·Mr Jamie Rigg, the Project Manager, employed by Grocon, at the McNab Site.
·Mr Frank Bortoletto, the Executive Project Manager, employed by Grocon.
·Mr Andrew Brinzi, the National Plant Manager, employed by Grocon.
·Mr Joe Brinzi, the National Occupational Health and Safety Manager, employed by Grocon.
·Mr Brian McAdam, the Operations Manager, employed by Grocon in Victoria.
·Mr Tino De Giusti, Grocon’s Project Manager at the Myer Emporium Site.
·Mr Graham Smith, an Operations Supervisor, employed by Monjon Australia which provided security staff at both sites.
·Mr Gregory Alfred, a Fair Work Building Industry Inspector.
·Mr Simon Caruana, a Fair Work Building Industry Inspector.
·Mr Graham Littlejohn, a Fair Work Building Industry Inspector.
·Mr Damien Cravino, a Fair Work Building Industry Inspector.
·Mr Andrew Strachan, the Business Development Manager of AAM Pty Ltd.
Each of these witnesses was called. Each gave some evidence orally and otherwise adopted their affidavits. Each was cross-examined.
Ten other deponents of affidavits were not required to attend to give any evidence in chief or to be cross-examined. They were:
·Ms Jessica Berenyi, the Assistant Director, Government and Parliamentary Policy, employed by the Fair Work Ombudsman.
·Mr Christopher Biggs, a Fair Work Building Industry Inspector.
·Mr Christopher Enright, the Director of the Regulatory Compliance Branch of the Fair Work Commission.
·Mr Rick Hanmer, a Fair Work Building Industry Inspector.
·Mr Shad Heyman, a Fair Work Building Industry Inspector.
·Mr John Post, a Fair Work Building Industry Inspector.
·Ms Anatole Pow, a Fair Work Building Industry Inspector.
·Mr Matthew Tarpkos, a Fair Work Building Industry Inspector.
·Mr Murray Gregor, a Fair Work Building Industry Inspector.
·Ms Meredith Knight, a Fair Work Building Industry Inspector.
The affidavits of this latter group of deponents were admitted into evidence subject to evidentiary objections. For the most part the evidence of these witnesses was either formal or exhibited visual images of events which occurred at or near the two sites.
Mr Steve Haitidis, the Managing Director of E&S Steelfix Pty Ltd advised the Court on the fifth day of hearing that he was no longer willing to participate in the proceeding. Mr Haitidis had provided affidavit evidence relating to what he said were the financial losses incurred by his company as a result of some of the CFMEU’s impugned conduct. Mr Haitidis’ affidavit was not read. The Director did not seek to enforce his attendance.
The parties examined the visual images which were in evidence and which were derived from various sources including the mainstream media and footage filmed by inspectors. There were still frames and video footage. The parties agreed on what visual material should be placed before the Court. It was collected on disk and USB sticks which were tendered as exhibits.
Much of the evidence, including the visual images, had also been tendered in the contempt proceeding before Cavanough J in the Victorian Supreme Court.
The CFMEU and the other respondents asserted an entitlement to rely on penalty privilege and the privilege against self-incrimination. This they were entitled to do: see John Holland Pty Ltd v Construction, Forestry, Mining and Energy Union(No 2) [2014] FCA 1032 at [39]-[52] (Barker J).
THE TWO SITES
The two sites were described by Cavanough J in Grocon Constructors (Victoria) Pty Ltd v Construction, Forestry, Mining and Energy Union [2013] VSC 275 at [88]-[92] and [94] as follows:
“88 At all relevant times the third plaintiff, Grocon Constructors (Vic) Pty Ltd, was in occupation of the Emporium site, which was located at 269-321 Lonsdale Street, Melbourne. The land had formerly been the site of the well-known Myer Lonsdale Street store. A new Myer Emporium was in the process of being constructed on the site. … Generally speaking, the building site was bounded by Lonsdale Street to the north, Caledonian Lane to the east and Little Bourke Street to the south. The western boundary was irregular. Adjacent to the western boundary was land comprising in part serviced apartments and in part a ‘service area’ for customers of the Myer Bourke Street store to attend in their vehicles and collect purchases. The northern and southern boundaries of the Emporium site extended for a substantial part of the city block between Swanston Street and Elizabeth Street.
89 An overhead gantry had been constructed over part of the width of Lonsdale Street, including one vehicle lane and the footpath. It ran for most of the length of the northern boundary of the site. Access to the gantry was via a set of stairs leading up from a point about halfway along the (enclosed) Lonsdale Street footpath. The footpath beneath the gantry could be accessed from either the east or the west. The gantry housed a site office and also change rooms and lunch sheds for construction workers employed directly by Grocon. The gantry also afforded access down to the building site itself. This was the normal point of access to the site for Grocon employees and staff. Another overhead gantry had been constructed over Caledonian Lane. It was intended for use, and was normally used, by subcontractors rather than direct Grocon employees. It contained facilities for the subcontractors and, again, it afforded access down to the building site itself.
90 Putting aside the two gantries, there were four street level access points to the Emporium site. One of these was called Gate 1. It was located at the north-eastern corner of the site (the Lonsdale Street/Caledonian Lane corner), very near the point directly below the eastern end of the Lonsdale Street gantry. At the relevant time, Gate 1 was the place at which trucks entered the site to collect and remove excavated soil. During the relevant period Gate 1 would not have been a viable point of access to the site for workers on foot regardless of any incidents occurring directly in front of it. On the other hand, Gate 1 was … very near the eastern end of the narrow enclosed pathway leading to the stairs by which access to the site via the Lonsdale Street gantry could be obtained, and also … very near the northern entry point to Caledonian Lane.
91 The other 3 ground level access points were from Little Bourke Street. One was at a loading bay. Another was at an indented part of the perimeter hoarding. The other was at the south-western corner of the site. These access points were not customarily used by the full time Grocon workers, because they did not lead conveniently to the change rooms and the lunch sheds. Rather, these access points were used to allow crane dogmen into the site from time to time during the day.
92 In addition, there were 4 other points of connection or potential connection between the Emporium site and the areas outside it. Each involved an underground tunnel. They were as follows:
ŸA tunnel connecting the Emporium site to the David Jones building located on the opposite side of Little Bourke Street. This had a retaining wall made of vertical metal elements which obstructed passage through the tunnel and which would take an hour to disassemble.
ŸA tunnel … connecting to the Myer building on the opposite side of Little Bourke Street. Passage through this tunnel was obstructed by timber hoarding, which would take approximately 30 minutes to disassemble. There was a 5 metre drop at the end of the tunnel into the Emporium site.
ŸAnother tunnel … connecting to the Myer building on the opposite side of Little Bourke Street. Passage through this tunnel was obstructed by concrete “block-work”, which would take around 4 hours to disassemble. Again, there was a 5 metre drop at the end of the tunnel into the Emporium site.
ŸA gate in a wall between the north-western corner of the Emporium site and the abovementioned Myer service area. The gate had not been constructed by the Grocon group or any related company and was not intended for use, and had not been used, by Grocon for access to the Emporium site. The Myer service area itself was accessible only by an underground tunnel and only by vehicle – pedestrian access was not permitted.
…
94 The McNab building site [was located] in McNab Avenue, Footscray. McNab Avenue commences at a roundabout at its intersection with Napier Street. It is a dead end street. Trucks and other vehicles would customarily enter the McNab site via a gate known as Gate 2 located some distance along McNab Avenue. The only way for a truck or other vehicle to enter McNab Avenue, and thus the site, was via the roundabout. The McNab site was not the only workplace or place of business in McNab Avenue.”
These descriptions accorded with the documentary and oral evidence given in the present proceeding, particularly by Mr McAdam and Mr Rigg, and were not contentious.
I would add the following in respect of the McNab Site. At the “dead end” of McNab Avenue there was a foot bridge which provided pedestrian access to the Footscray railway station. Video footage, taken during relevant events, shows people walking towards and from the end of the street where the bridge was located. The bridge crossed McNab Avenue. A person standing on it could look up McNab Avenue towards the Napier Street intersection.
It should also be mentioned that the head office of the Grocon Group was located on the first floor of the Queen Victoria Building (“the QV Building”). That building stands on the north east corner of the intersection of Swanston and Lonsdale Streets in the city of Melbourne. The Myer Emporium Site abutted Lonsdale Street not far from the south west corner of the same intersection. Parts of the site were visible from some of the windows of the office.
FACTUAL FINDINGS – STANDARD OF PROOF
To a large extent the evidence called by the Director was not disputed by the respondents. To the extent that it was this occurred through cross-examination of some of the witnesses.
When evidence has been challenged, and it is necessary for the Court to determine whether the evidence, or some of it, should be accepted, the civil standard of proof is to be applied. Given the seriousness of the allegations made and the potential penalties faced by the respondents if the allegations are made good the principles expounded in Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-2 must be borne in mind. They also find expression in s 140 of the Evidence Act 1995 (Cth). These principles have guided my fact finding in the present proceeding.
THE UNDERLYING DISPUTE
The principal evidence relating to the dispute which gave rise to the blockades of the two sites was given by Mr Van Camp. He clearly had a good understanding, derived from long experience representing the interests of workers and employers, of the practicalities and nuances of industrial relations negotiations. He was, in my view, a truthful witness. I accept his evidence.
Grocon and the CFMEU were parties to a number of enterprise agreements which applied to Victoria, New South Wales and Queensland. The Victorian agreement had a nominal expiry date of 31 March 2011. Agreements in other States were due to expire at about the same time. In March 2011 Grocon entered into discussions with the CFMEU with a view to negotiating replacement agreements. Mr Van Camp represented Grocon in these negotiations. Mr Spernovasilis was the CFMEU’s representative in discussions which related to the Victorian agreement. These discussions took place between March and September 2011. Over this period Mr Van Camp also had discussions with other officials of the CFMEU relating to the New South Wales and Queensland agreements.
By late September 2011 Mr Van Camp considered that agreement had been reached on all significant issues which had arisen in negotiations about the Victorian agreement. At about this time Mr Spernovasilis had a private conversation with Mr Van Camp in which Mr Spernovasilis said words to the effect that “[th]ere are some outstanding issues that you have with the branch that need to be addressed.” When Mr Van Camp enquired as to what those issues were Mr Spernovasilis said that Mr Oliver would raise the issues with him.
At about the same time Mr Spernovasilis said to Mr Van Camp that he wished to nominate a person who Grocon would be required to employ as an on-site CFMEU representative at the Myer Emporium Site. Mr Spernovasilis also said words to the effect that “To conclude the agreement, you will have to make some concessions” and that “[i]n this industry, it is usual for there to be CFMEU appointed representatives onsite. The CFMEU have good relationships with other construction companies that have union appointed representatives”. Mr Van Camp responded by saying that “Grocon has a policy that it does not just employ shop stewards and employs people based on merit.” A number of similar exchanges occurred in ensuing months.
On about 14 October 2011 a meeting took place at Grocon’s head office. At that meeting Mr Noonan, the Divisional Secretary of the Construction and General Division of the CFMEU, said words to the effect that “[w]e need to find a solution” and that “Grocon need to roll over ‘in relation to some issues of importance’ to the Branch.”
About 10 days later a further meeting took place between CFMEU and Grocon representatives at the Grocon head office. Amongst those present were Messrs Grollo, Van Camp, Noonan, Oliver and Spernovasilis. In the course of this meeting Mr Spernovasilis said: “The CFMEU can’t be on the outside looking into the two biggest jobs in Melbourne.” One of these “jobs” was the Myer Emporium project. Mr Van Camp responded that Grocon could not agree automatically to employ shop stewards simply because the CFMEU nominated such people. This issue was not resolved at the meeting.
Another meeting took place early in December 2011 at which Messrs Van Camp, Oliver and Spernovasilis were present. In the course of the meeting Mr Oliver said to Mr Van Camp that “If you fucking think that we’re going to sign the agreement without you agreeing on shop stewards, you’ve got another thing coming.” Mr Van Camp told Mr Oliver that “… this is a new late entry. We haven’t been formally told about these things and this is the first time that you told us why you haven’t signed the agreement. We expected it to be signed already.” Messrs Oliver and Spernovasilis advised Mr Van Camp that Mr Setka was not happy that Grocon had not agreed to engage any CFMEU approved shop stewards at the Myer Emporium Site. Following these discussions Mr Van Camp came to the view that there was no prospect of the parties resolving outstanding issues through further negotiations. Those outstanding issues, in addition to the shop steward issue, included drug and alcohol testing, the wearing and display of CFMEU stickers and logos and the right of entry to Grocon sites by union officials.
On 10 January 2012, Mr Van Camp wrote a letter to Mr Oliver in which he advised that Grocon had decided that further bargaining would not resolve outstanding issues and that it proposed to place before its workforce, with a view to it being approved by ballot, an agreement containing all the terms on which agreement had earlier been reached. It distributed the proposed agreement to its employees on 12 and 13 January 2012. Over the next two months legal action ensued between the CFMEU and Grocon. These proceedings occurred in this Court and Fair Work Australia. The CFMEU sought to obtain approval for a protected action ballot order and to prevent Grocon placing the agreement before its workforce. By the end of March 2012 the parties had determined that nothing was to be gained by persisting with the legal proceedings and they were all discontinued.
At the time that they reached agreement to discontinue the various proceedings Messrs Van Camp and Spernovasilis also agreed that the CFMEU and Grocon would enter into an enterprise agreement on the previously agreed terms and that ongoing discussions would proceed in relation to outstanding issues. The new Victorian agreement was approved by Fair Work Australia and commenced operation on 20 June 2012.
In cross-examination it was put to Mr Van Camp that the discontinuance of proceedings in March 2012 occurred in part because the CFMEU and Grocon had entered into what was described as “a side agreement”. One of the terms of that agreement was said to be that, prior to any new Grocon project commencing, the CFMEU could nominate candidates which it wished Grocon to consider for employment, and, if employed, could stand for election as employee representative and/or health and safety representative. Mr Van Camp denied the existence of any such side agreement. He did however acknowledge that:
“… the business and union had agreed that we would consider that, if suitable applicants were put forward and were interviewed, and they met the requirement of Grocon, they would be offered employment. If they were then successful and as an employee – and were then nominated by their – their peers, and they were elected, then they could fulfil that role.”
Mr Van Camp was questioned about the issues which he raised during interviews and the criteria which he applied in determining whether an applicant for employment, who had been nominated by the CFMEU, should be engaged. He said that one of the important matters was how the nominee would “perform their duties if they succeeded in being elected to employee representative or a health and safety representative role”. He was concerned to establish whether any nominee, if engaged and then elected as a Union representative, would be subject to direction from the CFMEU or would give priority to the wishes of Grocon and its employees. I accept Mr Van Camp’s evidence. To the extent that there was any agreement on the issue it was that Grocon was prepared to consider engaging workers nominated by the CFMEU but reserved the right, following interview, to choose not to employ the nominated person. These arrangements were procedural in nature.
Mr Van Camp also denied that there was any breach by Grocon of the arrangements. I accept his denial.
Between September 2011 and June 2012 Mr Spernovasilis nominated four men whom he said the Union would like Grocon to employ as CFMEU shop stewards. Mr Van Camp interviewed the nominees who were not known to him and rejected them all as being unsuitable.
On 4 July 2012 the CFMEU called a State wide stoppage to protest against the State Government’s Construction Code. Workers on Grocon’s site worked as normal on that day. Mr Spernovasilis attended the Myer Emporium Site in an effort to encourage workers to leave and attend the rally. He told Mr Van Camp that “If the CFMEU had its own representatives then it wouldn’t be an issue because they would have stopped the project and have everybody attend.” Mr Van Camp responded: “Well, that’s the very reason why we don’t particularly want to have your nominations.”
On 9 July 2012 Mr Spernovasilis told Mr Van Camp: “You fucked it, it’s going to be taken out of my hands” and that “our relationship is up the shit.”
On 11 July 2012 a meeting was held at the Grocon head office between Messrs Grollo, Van Camp, Setka, Oliver and Spernovasilis. At the meeting Mr Oliver insisted that Grocon should engage a CFMEU nominated shop steward on every one of its Victorian jobs. Grocon was also advised that the CFMEU could not allow it to have employee representatives at the Myer Emporium Site who were not appointed by the CFMEU. Mr Spernovasilis said that the CFMEU would provide Grocon with a list of people to choose from and that “We want you to consider whether these employees or potential employees are suitable for employment by Grocon.” Mr Van Camp responded that “Grocon interviews people on a daily basis for roles within Grocon. If those individuals meet Grocon’s criteria and are suitable for roles within the business, Grocon has no hesitation in offering them work.” Mr Setka added that Grocon needed to engage someone from the CFMEU and that “I cannot stomach driving past the [McNab Site] near my home knowing that there is no CFMEU representative that I [have] nominated or the CFMEU nominated operating on that project.” Mr Oliver said that it was highly embarrassing for the CFMEU that Grocon employees had worked through the 4 July stoppage and that there had been a “mini riot” at the Trades Hall Council where people questioned the CFMEU’s ability to control the sites. Mr Van Camp said that “We always did say that our jobs would be open, we would work and we would actively encourage our employees and subcontractors to come to work.” At this point Mr Setka turned to Mr Oliver and said “I told you so” and that “We’ll just smash ‘em”.
In July 2012 Mr Van Camp rejected demands from Mr Setka and Mr Spernovasilis that CFMEU flags should be allowed to fly on Grocon cranes, that employees and sub-contractors should be allowed to wear union paraphernalia on their clothing and that CFMEU stickers should be placed on employees’ helmets.
At about this time Mr Spernovasilis nominated yet another potential employee. He was interviewed by Mr Van Camp. Mr Van Camp decided that the nominee was unsuitable and declined to offer him employment.
On 1 August 2012 Mr Reardon telephoned Mr Van Camp. Mr Reardon said that he had been to the McNab Site and had met Mr Mark McMahon. Mr Van Camp told Mr Reardon that Mr McMahon was Grocon’s employee representative at the site. Mr Reardon said that “Well, that’s contrary to the agreement we have” and that he was not happy with the election of Mr McMahon as the employee representative at the site. Mr Van Camp said that “There is no agreement and I determine the suitability of which individuals are employed by Grocon.” Mr Van Camp added that it was up to the Grocon employees on the project to select who they wished to represent their interests and that Mr McMahon was a suitable person to perform the role by reason of his past experience. Mr Reardon said that he was not happy and would report this to Mr Spernovasilis.
On the following day Mr Spernovasilis telephoned Mr Van Camp and advised that he had spoken to Mr Reardon and that Mr Reardon had told him about the election of Mr McMahon as employee representative. Mr Spernovasilis accused Mr Van Camp of orchestrating the election. Mr Van Camp denied this allegation and said that it was for employees on a project to determine who represents their interests. Mr Spernovasilis then said that “It’s out of my hands … it’s going to cause a problem.”
On 14 August 2012, Mr Spernovasilis and Mr Christopher met with Grocon employees at the Myer Emporium Site. Mr DeGiuisti and Mr Joe Brinzi were in an adjacent room and could overhear Mr Spernovasilis saying to the Grocon workers that the CFMEU and Grocon were in dispute over union shop stewards. Mr Spernovasilis said that Grocon was doing the wrong thing, they didn’t have the right representation for the workers’ wellbeing on the project and that “we should have our own people here that look after your – your wellbeing and your safety”.
Immediately after that meeting, Mr Spernovasilis had a brief discussion with Mr Joe Brinzi and Mr DeGiuisti. Mr Spernovasilis said that the CFMEU and Grocon were in dispute as they “had not reached agreement on placing union organised reps on the Emporium and other sites”. He also said to Mr Joe Brinzi: “You know what this is all about ... Joe, I've got orders”, that “[i]t's above me, and it's no doubt above you” and that if Grocon did not come to an agreement with the union about the shop steward issue that “you could have 100 employees walk through these projects as early as next week”.
FACTUAL FINDINGS – MYER EMPORIUM SITE
The main evidence relating to events at the Myer Emporium Site came from Messrs DeGiuisti, Smith and McAdam. Each of these witnesses gave oral evidence and was cross-examined. Each gave evidence confidently and did his best to give an accurate account of his observations and exchanges in the course of the dispute. Save for some minor qualifications to which I will refer, I accept their evidence and make findings accordingly. There was also a good deal of video evidence which recorded relevant events to which I have had regard.
Wednesday, 22 August 2012
At approximately 5:25 am on 22 August, Mr DeGiuisti observed 15 to 20 people gathered at the eastern entry to the gantry on Lonsdale Street. Messrs Spernovasilis and Theodorou (another CFMEU official) were part of the group. When Mr DeGiuisti approached Mr Spernovasilis, Mr Spernovasilis said words to the effect of “it's out of my hands, it's with John Van Camp”.
At 5:31 am, a barbecue was wheeled into the Little Bourke Street loading bay and a group of people began to set it up. It remained in the loading bay until late that afternoon.
At approximately 6.00 am, Mr Smith arrived at the Myer Emporium Site and saw approximately 100 men standing in Lonsdale Street near the gantry gates.
Mr DeGiuisti made a number of observations from approximately 6:20 am. Mr Reardon was present near the western gantry gate on Lonsdale Street. Mr Reardon filmed Mr Smith by holding his mobile phone inches from his face, and said words to the effect of “Come on are you going to hit me”. Mr DeGiuisti said that he held concerns for Mr Smith's safety given the amount of abuse being directed towards him and the number of people wearing CFMEU‑branded clothing that were gathered at the site.
Mr DeGiuisti then walked around the perimeter of the Myer Emporium Site and saw that every gate and access point to the site was obstructed by groups of people wearing CFMEU clothing.
While walking around Mr DeGiuisti was handed a flyer entitled “Grocon's scabs named and shamed” which contained photographs of Mr Peter Hewett and Mr Daniel Van Camp and the words “Get rid of these scabs out of our industry. They will never be forgotten”.
At approximately 6:50 am, Mr Reardon and Mr Christopher addressed a group of Grocon employees who were gathered outside the State Library. At this time, Mr Reardon (accompanied by Mr Christopher) urged the employees to attend the barbecue that was being held in the Little Bourke Street loading bay and then to go home saying words to the effect of “you folks all ready to go down for a barbeque?” Mr Jason O'Hara then asked the group to walk to Grocon's head office in the QV building. They did so.
Mr McAdam had an office on the first floor of the QV Building. As already explained that building was on the north east corner of the intersection of Swanston and Lonsdale Streets. Windows at the front of the building commanded clear views of Gate 1 to the Myer Emporium Site which was located on the corner of Caledonian Lane and Lonsdale Street, a short distance down Lonsdale Street from the south west corner of the same intersection. At 7.10 am Mr McAdam looked out his window and saw approximately 50 people, most wearing CFMEU clothing, standing in and around Gate 1. From time to time during the day, he observed approximately 50 people gathered at strategic points around the site.
Because a substantial number of people had gathered at the access points to the Myer Emporium Site, Mr McAdam and other Grocon managers formed the view that the workers' health and safety would be put at risk were they to attempt to enter the site. Mr Van Camp and Mr Jason O'Hara spoke to Grocon's employees who were working on the project at a meeting in the QV building. They informed the employees that Grocon was concerned about their health and safety and that it was too risky for them to attempt to enter the site. The employees were sent home on full pay.
Shortly after this, Mr Van Camp and Mr O'Hara began a walk around the perimeter of the Myer Emporium Site. During this walk, Mr Van Camp observed groups of people wearing union-branded clothing located in the loading bays and at the access points to the site. Mr Van Camp also encountered Mr Martin Kingham, a former secretary of the Branch, who was standing with a group of people outside the site. Mr Kingham told Mr Van Camp that he didn’t really want to be there but that he had been instructed to attend the site.
At approximately 7:15 am, Mr Van Camp and Mr O'Hara walked towards the western entry to the Lonsdale Street gantry. As they did so, a group of approximately 12 to 15 people wearing CFMEU branded clothing stood in their path and prevented them from proceeding any further. Messrs Spernovasilis, Christopher and Theodorou stood in front of the Western gantry gate entry. The two men turned around and walked back towards Elizabeth Street.
A series of photos depicts groups of people (including Mr Reardon and Mr Spernovasilis), some wearing CFMEU-branded clothing, gathered outside both Gate 1 and the Western gantry entry to the site during the morning.
I accept these submissions.
Section 355 – “Employ …. a particular person”
The relevant parts of s 355 have been set out above at [35]. The section proscribes coercive conduct directed to the employment or non-employment of particular employees: see Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2014] FCA 160 at [41] (White J). Each of the paragraphs relied on by the Director refer either to “a particular person” or “a particular employee”.
The Director’s case was that each of the respondents had contravened s 355 with intent to coerce Grocon to comply with its demand that potential employees nominated by the CFMEU should be engaged by Grocon to work on the Myer Emporium Site and all its Victorian sites. The employees concerned were identified as five named persons whom Mr Spernovasilis had referred to Mr Van Camp and, in the case of the demand in respect of sites other than the Myer Emporium Site, as “such other person nominated or approved by the CFMEU”. The Director also relied on a negative demand in respect of all sites in respect of the allocation of duties or responsibilities of employee industrial or safety representative to Messrs Hewett, Daniel Van Camp and McMahon.
The respondents contended that the adjective “particular”, when employed in conjunction with the nouns “person” or “employee” in s 355, significantly confined the operation of the section. They contended that, in each instance, the Director was required to establish an intent by the respondents to coerce Grocon to employ or not employ a named individual or allocate or not allocate duties or responsibilities to such a named employee.
The singular nouns “person” and “employee” are to be read as extending to the plural: see Acts Interpretation Act 1901 (Cth), s 23. There can, therefore, be no objection to the Director relying, in his case, under s 355, on any intention, on the part of a respondent to coerce Grocon to employ the five named individuals or to not to employ the three named employees in specific roles.
There remains the question of whether a classification or category of “such other person nominated or approved by the CFMEU” sufficiently identifies a “particular” person or employee. I was not referred to any authority directly on the point in the context of s 355. I was, however, referred to an interlocutory decision of Marshall J in Director of the Fair Work Building Inspectorate v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2013] FCA 82 where his Honour was satisfied that a serious question would arise at trial as to whether s 355(a) would be contravened by a demand that a contractor should “get rid of the 457 workers” (a reference to a visa category permitting foreign workers to enter and work in Australia).
The Director also drew my attention to Bullock v The Federated Furnishing Trades Society of Australasia (No 1) (1985) 5 FCR 464. In that case the Full Court was called on to construe s 4D of the Trade Practices Act 1974 (Cth). That section defined the term “exclusionary provision” for the purposes of that Act. The definition included a provision which had the purpose of preventing, restricting or limiting the supply of goods or services to or the acquisition of goods or services from “particular persons”. Woodward J (with whom Sweeney J agreed) said (at 473) that:
“It is unnecessary and undesirable that any concluded view on the meaning of these sections should be reached for the purposes of this application. It is sufficient to say that, in my view, it is clearly arguable that ‘self-employed carpet layers’ or at least ‘the self-employed carpet layers who have in the past been employed by the carpet suppliers who have been forced to sign the FFTSA agreement’ are particular persons within the meaning of the Act. It is arguable that particular persons may be identified by general description, or as members of a designated class, without being individually named.”
See also at 469 (Smithers J).
In my view the requirement that “particular” persons or employees be identified for the purposes of s 355 can be satisfied by reference to a class provided that the chosen descriptor is sufficiently precise to enable ready identification of its members.
The adjective “particular” bears a number of meanings. Some of those meanings accord with the narrow construction contended for by the CFMEU. The meanings to be found in the Oxford English Dictionary include “belonging or relating to one person … as distinguished from another” and “belonging only to a specified person …”. Broader meanings are, however, to be found in the dictionary. These include “concerning or known to an individual person or group of people and no other …” and “a part, division or section of a whole”. These broader understandings contemplate that particular persons or employees may be identifiable by reference to their membership of a group within a larger cohort of persons or employees.
In the context of s 355, the use of the word gives rise to a requirement that coercion must be resorted to in an effort to bring about the employment, etc of identifiable persons or employees as distinct from any person or any employee. The naming of individuals will satisfy this requirement. Where, however, resort is had to identification by reference to a class or a group, “particular” imports a requirement of precision in identifying that class or group of persons. The more precise the description the more likely it is that a member can be regarded as a “particular” person or employee for the purposes of s 355.
Section 355 provides that the actor must not do certain things with intent to coerce others to employ or not employ or allocate or not allocate, etc identifiable persons. Those persons will more readily be identifiable if they are already persons who fall within a class such as those, who in the past, have been employed as carpet suppliers or who have worked in Australia pursuant to a specific class of visa. Persons who fall into these categories will be ascertainable. People who enter the class prospectively will only be identifiable upon entry. They will, nonetheless, be ascertainable at that point.
Persons who have been or are nominated by the CFMEU for employment by Grocon constitute a group which is readily identifiable by both the CFMEU and Grocon. In my view they are “particular” persons or workers for the purposes of s 355.
Intention – ss 348 and 355
A respondent will only be found to have contravened ss 348 and 355 if he or she is shown to have intended to coerce another person. Section 361 raises a presumption that a person has acted with a particular alleged intention “unless the person proves otherwise.” That presumption is not easily displaced. Normally, it will require direct testimony from the actor which is accepted by the Court if the onus is to be discharged: see Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500 at 517 (French CJ and Crennan J).
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.
Conclusion – ss 348 and 355
I find that each of the individual respondents has contravened ss 348 and 355 of the Act, in each of the instances particularised by the Director, save that of Mr Reardon’s alleged threat to Mr Smith at the McNab Site on 17 August 2012.
INDIVIDUAL LIABILITY – SECOND RESPONDENT – S 346
The Director’s pleaded case alleged contraventions of s 346 by Messrs Setka and Reardon. These contraventions were said to have occurred on 28 August 2012 at the Myer Emporium Site when Mr Van Camp and other Grocon employees sought to obtain access to the site at about 6:45 am (see above at [121]) and later when Mr Setka crossed Swanston Street and approached the Grocon employees who were standing in the breezeway below the Grocon office (above at [127]).
The allegation against Mr Reardon of contravention of s 346 was not pressed at trial.
The Director did, however, contend that Mr Setka had contravened the section when he abused the Grocon employees, using language such as “fucking dogs” and “rats” and saying to them “you should be over with us, this is where it is.” The use of such abusive language was said to constitute adverse action against the employees because it had prejudiced them in their employment: see Item 7 of s 342.
In his written submissions (at [254]) the Director further submitted that:
“Setka took the adverse action against these Grocon workers because they were not participating in the CFMEU’s blockade. Therefore, Setka took this action because the Grocon employees were engaging in ‘industrial activity’ within the meaning of s 347(b)(v), namely, by not being ‘over with us’ they were not representing or advancing the views, claims and interests of the CFMEU.”
Although not expressly stated the Director’s case must rest on s 346(b) which provides that a person must not take adverse action against another because the other person “engages … in industrial activity within the meaning of paragraph 347(a) or (b) …”. This must be so because paragraph (a) of s 346 deals with adverse action being taken because a person was not an officer or member of an industrial association and paragraph (c) only covers industrial activity as defined in paragraphs 347(c) to (g).
It is, nevertheless, somewhat difficult linguistically to appreciate how a person who does not do something such as representing or advancing the claims of a union can be said to engage in industrial activity. This is, however, something that is expressly contemplated when s 346(b) is read together with s 347(b)(v).
When Mr Setka approached the assembled Grocon employees he told them that they should be “over the road” with those who were preventing their entry to the site. The purpose of the blockade was avowedly to advance the CFMEU’s claims including the claim that Grocon should employ persons nominated by the CFMEU with a view to those persons acting as shop stewards on sites such as the Myer Emporium Site. Mr Setka was told by at least one of the employees that they wanted to go to work. I readily infer that this was the general view of the group. They had assembled for the purpose of crossing the road and entering the site if they could do so without impediment from those forming the blockade. They implicitly rejected Mr Setka’s assertion that they should be joining the blockade rather than contemplating entering the site and doing a day’s work. Faced with this non-compliance, Mr Setka launched into an abusive tirade against the workers.
Whether adverse action has the effect of prejudicing an employee directly or indirectly in his employment, is a question of fact.
At the time that Mr Setka abused them, the workers were awaiting an opportunity to enter their workplace and commence work. It was their desire to do so which enraged Mr Setka. At the time they were engaged in their employment.
The next question is whether Mr Setka’s abuse prejudiced them in that employment either directly or indirectly. The tirade has to be understood in its industrial context. The CFMEU was seeking to force Grocon to comply with its demand to employ nominated persons so that they would be available to act as shop stewards in the interests of Grocon’s workforce. Grocon was resisting the demand and its employees, the very people whose interests the CFMEU was purporting to advance, wanted no part in that industrial action. In branding those workers as “dogs” and “rats” Mr Setka sought to belittle them as traitors to the Union and the interests of construction workers generally.
In Qantas Airways Limited v Australian Licensed Aircraft Engineers’ Association (2012) 202 FCR 244, the Full Court considered the meaning of Item 1 in the table subjoined to s 342(1) of the Act. It provided that adverse action was taken if an employer “alters the position of the employee to the employee’s prejudice”. The Full Court said (at 250) that:
“The authorities thus establish that a prejudicial alteration to the position of an employee may occur even though the employee suffers no loss or infringement of a legal right. It will occur if the alternation in the employee’s position is real and substantial rather than merely possible or hypothetical.”
Although Item 1 is worded differently from the present Item 7, both items deal with prejudice to employees in their employment. Having regard to the terms of the abuse and the context in which occurred, I consider that the Grocon employees were prejudiced, in a real sense, by Mr Setka’s utterances: see Fair Work Ombudsman v Maritime Union of Australia [2014] FCA 440 at [254]-[255] (Siopis J).
Mr Setka was an officer of the CFMEU. His use of foul and abusive language towards the Grocon employees, in my view, prejudiced them in their employment.
In these circumstances a presumption arises under s 361 of the Act that Mr Setka took the adverse action against the employees because they refused to join the blockade and thereby advance the Union’s claims against Grocon. In the absence of any evidence from Mr Setka or the CFMEU this presumption has not been displaced.
I, therefore, find that Mr Setka contravened s 346.
LIABILITY OF THE CFMEU
The Director submitted that the CFMEU was itself liable for the acts of the individual respondents in their capacity as officials of the Union. He accepted that the effect of the Full Court’s decision in Construction, Forestry, Mining and Energy Union v Director of Fair Work Building Inspectorate [2014] FCAFC 101 was that the proceeding against the CFMEU stood dismissed to the extent that pecuniary penalty orders were sought against it in respect of any contravening conduct by the individual respondents at the Myer Emporium Site on 28‑31 August 2012 inclusive and 5 September 2012 at the McNab Site. He maintained, however, that he was entitled to pursue other relief against the Union in the event that it was found liable for the conduct of its officials on those days. He was not constrained from seeking a full range of relief, including pecuniary penalties, in respect of impugned conduct on other days. For reasons already given, I accept these submissions.
In his pleaded case the Director alleged that the CFMEU could be affixed with direct liability under s 362 of the Act or as an accessory, relying on s 550. These bases for liability were not seriously pressed in final submissions.
The Director sought to rely instead on provisions of s 363 of the Act which relevantly provides:
“(1) For the purposes of this Part, each of the following is taken to be an action of an industrial association:
(a)…
(b)action taken by an officer or agent of the industrial association acting in that capacity;
(c)action taken by a member, or group of members, of the industrial association if the action is authorised by:
(i)…; or
(ii)…; or
(iii)an officer or agent of the industrial association acting in that capacity;
(d)…;
(e)…;
(2)…
(3)If, for the purposes of this Part, it is necessary to establish the state of mind of an industrial association in relation to particular action, it is enough to show:
(a)that the action was taken by a person, or a group, referred to in paragraphs (1)(a) to (e); and
(b) that the person, or a person in the group, had that state of mind.
(4)…”
It was not in dispute that the CFMEU was an industrial association for the purposes of s 363. Nor was it in dispute that the individual respondents were officers of the Union: see definitions in s 12 of the Act.
The acts relied on by the Director in relation to each of the individual respondents have been set out earlier in these reasons. The effect of s 363 is to deem each of these acts to be an action of the CFMEU if these respondents were acting in their capacity as officers at the time.
It is not necessary for the Director to establish that the various acts occurred whilst the officials were performing their duties as such. I am, nonetheless, satisfied that each of acts relied on by the Director occurred in furtherance of the CFMEU’s industrial campaign to force Grocon to comply with its demands and, in particular, those demands relating to the employment of nominated workers. The presence of the officials at the two sites during the blockades, their active participation in prosecuting those blockades and the public statements made by some of them about the purpose of the blockades support a strong inference that they were at the relevant sites at various times in their capacity as Union officials.
I find that each relevant action of individual respondents was an action of the CFMEU. Each action was, by operation of s 363(3), taken with the requisite intention.
The CFMEU has contravened ss 348 and 355 of the Act by taking each proscribed action found to have been taken by the individual respondents. Unlike those respondents it is not liable to the imposition of a pecuniary penalty for taking action at the Myer Emporium Site on 28, 29, 30 and 31 August 2012 or on 5 September 2012 at the McNab Site.
RELIEF
I will give directions relating to the second stage of the hearing which is to deal with the relief sought by the Director.
I certify that the preceding two hundred and ninety (290) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tracey. Associate:
Dated: 17 March 2015
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