Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union - [2012] FMCA 946

FEDERAL MAGISTRATES COURT OF AUSTRALIA

DIRECTOR OF THE FAIR WORK BUILDING INDUSTRY INSPECTORATE v CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION & ORS

[2012] FMCA 946

INDUSTRIAL LAW – Industrial action – whether contraventions of Workplace Relations Act 1996 (Cth) and Building and Construction Industry Improvement Act 2005 (Cth) – whether conduct industrially-motivated.

WORDS AND PHRASES – “industrially-motivated” – “from the floor” – “shop floor” – “fuck them”.

Building and Construction Industry Improvement Act 2005 (Cth), ss.36(1), 37, 38, 52
Evidence Act 1995 (Cth), ss.59(1), 140(2)
Mirvac Constructions WA Pty Ltd and the CFMEU Building and Construction Industry Enterprise Agreement 2005-2008
Workplace Relations Act 1996 (Cth), ss.127, 170NC, 349, 420(1), 494(1) and (5), 728, 826(2)

A & L Silvestri Pty Ltd v Construction, Forestry, Mining and Energy Union (2007) 165 IR 94; [2007] FCA 1047
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia & Anor v Laing & Anor (1998) 89 FCR 17
Construction, Forestry, Mining and Energy Union v BHP Steel (AIS) Pty Ltd [2001] FCA 1758
Dietrich v Dare (1980) 30 ALR 407
Hanley v Automotive, Food, Metals, Engineering, Printing & Kindred Industries Union & Anor (2000) 100 FCR 530; [2000] FCA 1188
Radisich v Construction, Forestry, Mining and Energy Union & Ors [2010] FMCA 150
Seven Network (Operations) Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia & Ors (2001) 109 FCR 378; [2001] FCA 456
Suh & Ors v Minister for Immigration & Citizenship & Anor (2009) 175 FCR 515; [2009] FCAFC 42
The Age Company Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (2004) 133 IR 197
Walplan Pty Ltd v Wallace (1985) 8 FCR 27

R Allen, Allen’s Dictionary of English Phrases (London: Penguin, 2006)
K Hince, “Unions on the Shop Floor”, Journal of Industrial Relations (1967) Volume 9, No. 3
H Pelling, A History of British Trade Unionism, 3^rd Edition (Harmondsworth: Penguin Books, 1979)
The Concise Oxford Dictionary of Current English, 7^th Edition (Oxford: Clarendon Press, 1984)
The Free Dictionary, Oxford English Dictionary, Second Edition (Clarendon Press: Oxford, 1989) Volume VI
KF Walker, Australian Industrial Relations Systems (Cambridge: Harvard University Press, 1970)

Applicant:

DIRECTOR OF THE FAIR WORK BUILDING INDUSTRY INSPECTORATE

First Respondent:

CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION

Second Respondent:

CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION OF WORKERS

Third Respondent:

JOSEPH MCDONALD

File Number:

PEG 167 of 2009

Judgment of:

Lucev FM

Hearing date:

22 April 2010

Date of Last Submission:

22 April 2010

Delivered at:

Perth

Delivered on:

26 October 2012

REPRESENTATION

Counsel for the Applicant:

Mr J L Snaden

Solicitors for the Applicant:

Ashurst Australia

Counsel for the First and Second Respondents:

Mr K J Bonomelli

Solicitors for the First and Second Respondents:

Construction, Forestry, Mining and Energy Union

Counsel for the Third Respondent:

Mr G MacLean

Solicitors for the Third Respondent:

Gavin MacLean

DECLARATION

The Court declares that:
(a)The third respondent by his conduct on 12 September 2008 at “The Peninsula” building construction site in Burswood, Western Australia, contravened section 494(1) of the Workplace Relations Act 1996 (Cth) by organising industrial action; and
(b)The first respondent by the conduct of the third respondent on 12 September 2008 at “The Peninsula” building construction site in Burswood, Western Australia, contravened section 494(1) of the Workplace Relations Act 1996 (Cth); and
(c)The second respondent by the conduct of the third respondent on 12 September 2008 at “The Peninsula” building construction site in Burswood, Western Australia, contravened section 494(1) of the Workplace Relations Act 1996 (Cth).

AND ORDERS THAT

Insofar as the application alleges a contravention of section 38 of the Building and Construction Industry Improvement Act 2005 (Cth) it be dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT PERTH

PEG 167 of 2009

DIRECTOR OF THE FAIR WORK BUILDING INDUSTRY INSPECTORATE

Applicant

And

CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION

First Respondent

CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION OF WORKERS

Second Respondent

JOSEPH MCDONALD

Third Respondent

REASONS FOR JUDGMENT

Introduction

On Friday, 12 September 2008 at the “The Peninsula” building construction site in Burswood, Western Australia,[1] a meeting of workers was held, following which certain work stopped. These proceedings concern the meeting[2] and the stoppage on that day.
[1] “the Site”.
[2] “the Meeting”.
The applicant, now the Director of the Fair Work Building Industry Inspectorate,[3] alleges that the third respondent, Joseph McDonald, who is an Assistant Secretary of both the first respondent, the Construction, Forestry, Mining and Energy Union, a federally registered union, and the second respondent, the Construction, Forestry, Mining and Energy Union of Workers, a union registered in Western Australia,[4] came onto the Site in the early morning of 12 September 2008 and:
a)held an unauthorised meeting of workers to discuss various issues; and
b)after having been informed that the workers’ pay would be deducted on account of their attendance at the Meeting, orchestrated a stoppage of work by the workers involved.[5]
[3] “Director”.
[4] The “CFMEU” and “CFMEUW” respectively; collectively the “Unions”.
[5] “the Stoppage”.
The Director alleges that:
a)by doing so, McDonald:
i)organised, engaged in or was otherwise involved in, industrial action in contravention of s.494 of the Workplace Relations Act 1996 (Cth);[6] and
ii)was involved in industrial action in contravention of s.38 of the Building and Construction Industry Improvement Act 2005 (Cth);[7] and
b)the Unions are liable – both directly and vicariously – for McDonald’s conduct.
[6] “WR Act”.
[7] “BCII Act”.
The Unions and McDonald deny the allegations.
Section 494 of the WR Act relevantly provided as follows:
(1) From the day when:
(a) a collective agreement; or
(b) a workplace determination;
comes into operation until its nominal expiry date has passed, an employee, organisation or officer covered by subsection (2) must not organise or engage in industrial action (whether or not that action relates to a matter dealt with in the agreement or determination).
(2) For the purposes of subsection (1), the following are covered by this subsection:
(a) an employee who is bound by the agreement or determination;
(b) an organisation of employees that is bound by the agreement or determination;
(c) an officer or employee of such an organisation acting in that capacity.
(3) …
(4) Subsections (1) and (3) are civil remedy provisions.
(5) The Court may make one or more of the following orders in relation to a person who has contravened subsection (1) or (3):
(a) an order imposing a pecuniary penalty on the person;
(b) injunctions, and any other orders, that the Court considers necessary to stop the contravention or remedy its effects.
(6) The pecuniary penalty under paragraph (5)(a) cannot be more than 300 penalty units for a body corporate or 60 penalty units in any other case.
(7) An application for an order under subsection (5), in relation to a contravention of subsection (1), may be made by:
(a) the employer concerned; or
(b) a workplace inspector; or
(c) any person affected by the industrial action; or
(d) any other person prescribed by the regulations.
(8) …
The BCII Act relevantly provided:
a)in s.38 as follows:
A person must not engage in unlawful industrial action.
b)in s.37 in defining “unlawful industrial action” as follows:
Building industrial action is unlawful industrial action if:
(a) the action is industrially‑motivated; and
(b) the action is constitutionally‑connected action; and
(c) the action is not excluded action.
and
c)in s.36(1) in defining “building industrial action” as follows:
(1) In this Chapter, unless the contrary intention appears:
building industrial action means:
(a) the performance of building work in a manner different from that in which it is customarily performed, or the adoption of a practice in relation to building work, the result of which is a restriction or limitation on, or a delay in, the performance of the work, where:
(i) the terms and conditions of the work are prescribed, wholly or partly, by an industrial instrument or an order of an industrial body; or
(ii) the work is performed, or the practice is adopted, in connection with an industrial dispute (within the meaning of subsection (4)); or
(b) a ban, limitation or restriction on the performance of building work, or on acceptance of or offering for building work, in accordance with the terms and conditions prescribed by an industrial instrument or by an order of an industrial body; or
(c) a ban, limitation or restriction on the performance of building work, or on acceptance of or offering for building work, that is adopted in connection with an industrial dispute (within the meaning of subsection (4)); or
(d) a failure or refusal by persons to attend for building work or a failure or refusal to perform any work at all by persons who attend for building work;
but does not include:
(e) action by employees that is authorised or agreed to, in advance and in writing, by the employer of the employees; or
(f) action by an employer that is authorised or agreed to, in advance and in writing, by or on behalf of employees of the employer; or
(g) action by an employee if:
(i) the action was based on a reasonable concern by 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 for the employee to perform.
d)in s.36(1) defining “industrially-motivated” as follows:
industrially‑motivated means motivated by one or more of the following purposes, or by purposes that include one or more of the following purposes:
(a) supporting or advancing claims against an employer in respect of the employment of employees of that employer;
(b) supporting or advancing claims by an employer in respect of the employment of employees of that employer;
(c) advancing industrial objectives of an industrial association;
(d) disrupting the performance of work.
The employer referred to in paragraphs (a) and (b) need not be the employer whose employee’s do the work to which the action relates.

Background facts

The following are relevant uncontroversial facts:
a)the Site was managed by the builder, Mirvac Constructions (WA) Pty Ltd;[8]
[8] “Mirvac”.
b)on the morning of 12 September 2008, McDonald, in company with another assistant secretary of the Unions, Graham Pallot, attended at Site before 7.00am;
c)the Meeting commenced at 7.00am;
d)the Meeting was what was known, on Site, as a toolbox meeting;
e)this particular Meeting was ultimately comprised of separate parts, namely:
i)a part addressed by Michael Hogan, a safety representative employed by Mirvac;
ii)a part addressed by McDonald;
iii)a part where the meeting was adjourned whilst McDonald, Pallot and Philip Milne, who had been elected a co-delegate for the Unions during the part of the Meeting addressed by McDonald, went to see Mirvac officers concerning whether the workers who had attended the Meeting were to have their pay docked; and
iv)a part where, upon McDonald, Pallot and Milne returning from visiting the Mirvac officers, the Meeting was further addressed by McDonald, and there was a show of hands in support of a resolution, which was passed, and which resulted in the Stoppage; and
f)the Stoppage lasted until the end of the day.

Issues

Four key issues arise for resolution in these proceedings, namely:
a)was the Meeting authorised by Mirvac?
b)did either or both of the Meeting and the Stoppage have a sufficient industrial character to qualify as “industrial action” for the purposes of the WR Act?
c)were either or both of the Meeting and the Stoppage “industrially motivated”, within the meaning attributed to that phrase by the BCII Act; and
d)can or should either or both of the Unions be held liable for McDonald’s conduct?

Consideration of the issues

Was the Meeting authorised?

Introduction

This question has two parts:
a)was the Meeting separate from or part of the usual toolbox meeting that took place on the morning of 12 September 2008? and
b)if the Meeting was separate, did McDonald have Mirvac’s consent to hold it?
McDonald alleges that he and Pallot “...attended the Site and addressed the workforce with the implied consent...or the acquiescence of [Mirvac]”[9] and that “...the Meeting was authorised...”[10]. The Unions do not admit anything more than that McDonald and Mr Pallot “...attended a toolbox Meeting...”[11].
[9] See McDonald’s re-amended points of defence, filed 8 March 2010, paragraph 11(c).
[10] See McDonald’s re-amended points of defence, filed 8 March 2010, paragraph 13.
[11] See the Unions’ points of defence, filed 27 October 2009, paragraph 11.
The Director submits that the bulk of the evidence suggests that the Meeting was not authorised because:
a)it was supplemental to (rather than a component of) the scheduled toolbox Meeting; and
b)it took place without Mirvac’s consent, and McDonald said something to the effect that the Meeting was unauthorised, most likely from the outset of the Meeting.

Did McDonald have authority to enter the Site?

The first question which arises is whether McDonald had authority to enter the Site on 12 September 2008. This is relevant because there was some evidence that suggested that when McDonald was previously authorised to enter the Site it was usually for the purpose of having a meeting with workers.
The evidence about whether McDonald had authority to enter the Site is really limited to two witnesses: Keith Wakeling, Mirvac’s senior construction manager, and McDonald. There was no formal agreement, or any formal documentation, relating to McDonald’s access to Site. There was certainly nothing which could be described as an agreement in express terms. If there was authority from Mirvac, via Wakeling, for McDonald to enter the Site on 12 September 2008 it is an implied authority arising from certain acts or omissions by Wakeling and McDonald.
Wakeling gave evidence that:
a)McDonald would:
Ring me to say he wanted to go onto the site. It was more that if he wanted to have a meeting for whatever reason, I would know about it so I can sanction it and let the staff know on site that that’s what was going to happen.[12]
b)direct or indirect contact from McDonald was a sufficient means to arrange McDonald’s attendance at Site;[13] and
c)he would only delay McDonald’s visit if the timing of the visit would interfere with something like a “concrete pour”.[14]
[12] Transcript, page 73.
[13] Transcript, page 85.
[14] Transcript, pages 73 and 85-86.
McDonald gave evidence that:
a)it was his practice prior to visiting the Site to:
i)contact Wakeling directly; or
ii)leave a message for Wakeling informing him of his intention to visit the Site;[15] or
iii)contact an intermediary such as the Unions’ Site delegate to relay his intention to visit the Site to Wakeling,[16] and in this regard he said:
...the delegate would let Keith know that I was coming. If I wanted to have a meeting they would organise it, and it may be a case that there was a concrete pour so we would put it off till the next day. I didn’t have a bad relationship with Wakeling.[17]
b)on one occasion prior to 12 September 2008 he left a message with Wakeling, but did not speak to him directly about his proposed visit until it had been completed.[18]
[15] Transcript, page 307.
[16] Transcript, page 330.
[17] Transcript, page 305.
[18] Transcript, page 307.
It can be inferred from the evidence that the express acknowledgement or consent from Wakeling was not a necessary pre-requisite to McDonald being permitted to attend the Site , provided that:
a)McDonald had given notice by one of the means set out above; and
b)there was no activity on Site which might be affected by any proposed meeting.
It follows from that that, in the circumstances, a lack of contact from Wakeling might be treated by McDonald as authority to enter the Site.
On 12 September 2008 there would have been no necessity to re-schedule any proposed meeting between McDonald and the workers as there was already a meeting of all employees on Site schedule for early that morning. At the very least, there is no evidence to indicate that there was any activity of a type which would ordinarily have caused Wakeling to ring McDonald and alter the time of any proposed meeting with the workers which McDonald might be intending to attend.
Wakeling gave evidence that there may have been occasions where McDonald left a message on Wakeling’s phone about his intending to enter the Site in circumstances where Wakeling was too busy to check that message,[19] but it is unclear whether the comment related to McDonald’s visit to the Site on 12 September 2008, or is generally referable to any visit made by McDonald to the Site. In any event, it leaves open the possibility that McDonald did attempt to contact Wakeling prior to his visit to the Site on 12 September 2008 by way of leaving a phone message. McDonald thinks that this is what would have occurred.[20]
[19] Transcript, page 73
[20] Transcript, pages 307 and 330.
In answering a question whether McDonald rang him prior to his coming onto Site on 12 September 2008 Wakeling said “...no, I don’t recall that, no”.[21] Wakeling was simply not able to recollect if McDonald called him. McDonald is also uncertain on this point. He gave evidence that he adopted a practice of always contacting Wakeling prior to entering the Site, and thinks that he must have done so on this occasion, although he does not have a specific recollection of doing so.[22]
[21] Transcript, page 74.
[22] Transcript, page 307.
Neither the Director nor McDonald produced in evidence telephone records from Wakeling or McDonald which might have assisted the Court to determine whether or not McDonald had or had not called, or left a message, for Wakeling at any proximate time prior to entering the Site on the morning of 12 September 2008. The Court was simply left with the imperfect recollections of both McDonald and Wakeling as to what they thought they might have done in this regard at the relevant time.
Matters which might support the contention that McDonald was permitted to be on Site on 12 September 2008 include:
a)the fact that McDonald was greeted at about 6.50am, after he entered the Site, by a Mirvac Site supervisor, Bruce Dodd, who had a role in regulating access to the Site, and no issue was raised as to his presence on Site;[23] and
b)the fact that McDonald was never asked to leave the Site by any Mirvac management or supervisory staff who saw him on Site including Wakeling, Dodd and Craig Prebble, who at the relevant time was Mirvac’s construction manager at Site.
[23] Transcript, pages 176-177.
Counsel for the Director did suggest that McDonald might have been more vociferous in his protests concerning authorisation had he thought that he was authorised. That McDonald did not do so however, is consistent with findings that the Court makes later in these Reasons for Judgment with respect to the fact that McDonald did not consider, until it was raised from the floor of the Meeting, that there was any prospect of wages for the workers attending the meeting being docked. Further, when he went to discuss the matter with Mirvac management, namely Prebble and Wakeling, the responses that he received made it apparent that it was pointless to argue about the docking of the workers’ wages. The Court does not therefore consider that any adverse inference ought to be drawn against McDonald by reason of any seeming lack of protest on the basis that he had authorisation to hold the Meeting.

Ultimately, the Court does not consider that there is sufficient evidence to enable it to establish that:
a)McDonald was not authorised to enter the Site; or
b)McDonald was authorised to enter the Site.
To the extent that McDonald’s authority to enter the Site needs to be proven by the Director as a component of the Director’s case with respect to the unlawfulness of the Meeting, that has not been established on the evidence.

Awareness of the unlawfulness of the Meeting

A critical issue is whether McDonald began his address to the workers at the Meeting with the words, or words to the effect that, the Meeting (or at least that part of it which was about to occur) was unlawful, or unauthorised, and that the workers would be docked four hours wages if they stayed at the Meeting. If McDonald said words to this effect at the beginning of the Meeting, the issue of authorisation would be resolved conclusively in favour of the Meeting being unauthorised.
When asked whether he began his address at the Meeting with those words McDonald said:
[T]hats rubbish, why would I have carried on and cost the men four hours wages? You don’t win elections that way, comrade.[24]
[24] Transcript, page 339.
Glenn Royle, a labourer employed by Mirvac at the Site, said in his evidence that he could not remember the first thing that McDonald said in his part of the Meeting, and that he did not specifically remember any of the things that McDonald said at the Meeting.[25] Following a successful application to cross-examine his own witness,[26] Counsel for the Director elicited from Royle evidence that Royle had told the Australian Building and Construction Commission[27] in an examination under s.52 of the BCII Act that:
i)McDonald had said, just prior to going to the Mirvac office on Site, that “we’ll see whether we’ll be paid for that meeting.”;
ii)“…[McDonald] said it was an illegal meeting before it started”; and
iii)when McDonald returned from the Mirvac office he told the Meeting that they were not going to be paid, and that they may as well go home for the day, and that McDonald put forward the motion for the workers to go home.[28]
Points (i) and (iii) above are not inconsistent with what McDonald says occurred. Point (ii), standing alone, is not evidence that McDonald commenced the Meeting by saying that the Meeting was unauthorised. What McDonald is alleged to have said in point (ii) above is not time-attributed in Royle’s evidence.
[25] Transcript, pages 99-100.
[26] Radisich v Construction, Forestry, Mining and Energy Union & Ors [2010] FMCA 150.
[27] “ABCC”.
[28] Transcript, pages 133-134.
The effect of any evidence given by Royle which might have been adverse to the Unions and McDonald was destroyed in cross-examination by Counsel for the Unions, who got Royle to admit that:
a)he was sitting at the back of a large amenities room, measuring 50 metres by 30 metres, during the Meeting, and could only intermittently see where McDonald was standing addressing the Meeting;
b)there was a considerable amount of noise and shouting from the 180 or so workmen gathered at the Meeting;[29]
c)“I probably have got difficulty in hearing” and “my hearing is not the best”;[30] and
d)he did not know whether what he had told the Court was what he had heard McDonald say or what someone else had told him that McDonald said.[31]
[29] Transcript, pages 152-153.
[30] Transcript, page 155.
[31] Transcript, page 160.
The net effect is that the Court is simply not prepared to rely upon anything that Royle said which might be adverse to McDonald or the Unions, as, on the basis of his own evidence, it is likely to be inherently unreliable, or inadmissible hearsay.[32]
[32] Evidence Act 1995 (Cth), s.59(1).
Karl Lammas worked at the Site as a waterproofer.[33] In his oral evidence he recalls that McDonald commenced his address with the words “... ‘meetings gone over’ or something like that and that we won’t be getting paid we might not get paid or something. I’m not sure.” Lammas went on to indicate that his recall was “not 100 per cent”.[34] Asked whether McDonald said anything other than “the meeting is going over”, Lammas said “that we might not get paid for four hours”, and that McDonald explained that that might occur “because the meeting’s going over.”[35] Counsel for the Director was permitted to cross-examine Lammas on what Lammas had told the ABCC in an examination under s.52 of the BCII Act. Relevantly, that part of the transcript is as follows:
[33] Transcript, pages 184-185.
[34] Transcript, page 188.
[35] Transcript, page 189.
You say that Mr McDonald said, at the start of the meeting, “This is an unauthorised meeting and you won’t be getting paid for four hours.”---Yes, I remember that in the statement.
And that was truthful, was it?---Yes.
So, Mr McDonald said that?---Yes.[36]
[36] Transcript, page 202.
In cross-examination Lammas agreed that:
a)he was standing up at the back of the meeting place, probably 15 to 20 metres from where the people addressing the meeting were;
b)it was a loud meeting with a lot of arguing taking place;[37] and
c)the issue of whether or not he was to be paid was one which was important to him, and one which, when raised, caused him to pay more attention to what was going on at the meeting than previously.[38] He did not however recall whether or not people were arguing about that issue or discussing the issue.[39]
[37] Transcript, page 211.
[38] Transcript, pages 215-216.
[39] Transcript, page 216.
Lammas did not disagree, even after having the contents of his ABCC examination put to him, that:
a)McDonald never used the words “[T]his is an unauthorised Meeting”; or
b)McDonald only ever referred to the Meeting going over, and the possibility of wages being docked, in response to those matters being raised by workers at the Meeting.[40]
[40] Transcript, page 217.
When Lammas was asked specifically about when the issue of payment became a live issue during McDonald’s address to the workers he said “I can’t recall exactly when”.[41] When asked whether he could remember whether it was at the beginning, the middle or the end of McDonald’s address to the workers, he said “I can’t recall exactly now at this time.”[42]
[41] Transcript, page 216.
[42] Transcript, page 216.
It was also put to Lammas that McDonald never used words to the effect that there was an unauthorised meeting, but rather said words to the effect that the meeting may have gone over time and he was going to go and check with Mirvac whether the workers’ pay was to be docked. Lammas’ response to this was “Okay”, and when asked whether he did not disagree with that he said “I can’t recall exactly at this point, remembering.”[43]
[43] Transcript, page 217.
Cross-examined in relation to his statement in the ABCC examination that McDonald had said that “This is an unauthorised meeting and you wont’ be getting paid for four hours”, Lammas said that he was now unable to recall whether or not McDonald used those words,[44] but that he told the ABCC what he believed McDonald had said at the time of the ABCC examination, which was two to three months after the events concerned.[45]
[44] Transcript, page 218.
[45] Transcript, pages 219-220.
When asked whether he now had differing recollections of what was said, Lammas said “I can’t recall a hundred per cent”.[46]
[46] Transcript, page 222.
It is apparent from Lammas’ evidence that he is very unsure as to what exactly was said at the Meeting, and when it was said, and specifically what and when McDonald said anything in relation to the issue of whether the Meeting was authorised and whether payment for the workers was to be docked. What he told the ABCC was not said until two to three months after the events at the Meeting, and given his performance in the witness box in these proceedings, there is no reason to think that his recall would have been any better in a compulsory examination by a statutory investigative body. In the circumstances, the Court does not consider Mr Lammas’ evidence, either to the Court, or his evidence to the Court about what he told the ABCC, to be reliable, and Lammas’ evidence will not be relied upon by the Court.
Whalen, who was a supervisor for a waterproofing company on Site, and who had been working on the Site for five years, gave evidence, from which he was not turned in cross-examination, that McDonald commenced the Meeting by saying that:
a)it was an illegal meeting; and
b)Mirvac would dock the workers four hours pay.[47]
[47] Transcript, pages 227 and 240-244.
Whalen provided a credible explanation as to why he did not leave the Meeting, and that was because he was interested in the outcome of the CFMEU issues to be discussed at that meeting.[48] One of those issues was whether or not a stand-in shop steward (or co-delegate) was to be elected to cover for the absences of Simpson, whom Whalen knew personally, and personally supported.[49] There is no reason to suggest that Whalen’s support for Simpson affected his evidence.
[48] Transcript, page 240.
[49] Transcript, page 239.
It was suggested that Whalen had given contradictory evidence in relation to the structure of toolbox meetings conducted prior to 12 September 2008. Further, it was said that this affected his credibility generally. If that be the case, then the credibility of most of the witnesses would be affected generally. There was significant confusion as to the distinction between toolbox meetings, safety meetings, Union meetings, report-back meetings, and whether such meetings were all part of one meeting, that is the toolbox meetings, or whether they were separate meetings held in conjunction with, or immediately after, the toolbox meetings, and how long they took to conduct. The Court is not prepared to draw any conclusions with respect to Whalen’s credibility on the basis of his evidence of the toolbox meetings.
It was also suggested that Whalen’s credibility was affected by his evidence concerning Mason, a “boss” whom McDonald requested leave the Meeting.[50]
[50] Transcript, page 316.
The suggestion that Whalen said that Mason left the Meeting after McDonald had said that it was an illegal meeting for which the workers would be docked for four hours does not withstand an examination of the relevant portion of Whalen’s evidence, which provides as follows:
At the start?---At the start he told us all it was an illegal meeting.
Okay?---We were going to be docked four hours and then it progressed on to the fill-in shop steward.
Yes?---I do believe he even asked a boss to leave the meeting at the start.
What boss was that?---Fred Mason.[51]
[51] Transcript, page 243.
That evidence is not inconsistent with:
a)Mason’s evidence that he left the Meeting at the start; and
b)Mason leaving the Meeting before McDonald began to speak to the Meeting.
It is consistent with Whalen’s evidence to suggest that at the start of the Meeting, first, Mason was asked to leave, and second, McDonald went on to speak to the Meeting, and said whatever he said.
Ultimately, Mr Whalen’s evidence must be weighed in the balance against other admissible evidence as to what happened at the commencement of the meeting.
Mason, a sub-contractor bricklayer and director-employee of FLC Construction Pty Ltd,[52] identifies McDonald’s request that he leave the Meeting as the first matter raised by McDonald and he does not say anything about any comment that the Meeting was illegal and would attract a four hour docking of wages.[53] Mason’s evidence is clear and straightforward, and if he had heard McDonald talk about the Meeting being illegal or unauthorised, or about the docking of workers’ wages, there can be no doubt that he would have given evidence to that effect.
[52] Transcript, page 284; Exhibit A10.
[53] Transcript, page 288.
The principal difficulty with the evidence of Mitchell Seth, who was a sheet metal apprentice at the relevant time, is that he was not paying attention to the Meeting until he heard the topic of possible wage deductions being made:
Alright. What was the first thing you recall McDonald saying to the meeting when you saw him speaking?---I have no idea. I was, yes, just sort of – I don’t know, just rocked up and was sort of half paying attention and, you know, I was standing at the back so sort of, yes, didn’t really pay too much attention at first.[54]
[54] Transcript, page 255.
Seth also agrees that that topic of wage deductions may have had its origin as a matter which was raised from the Meeting floor, and not as something initially raised by McDonald.[55] Seth also places the timing of the relevant remarks attributed to McDonald as occurring half way through McDonald’s part of the Meeting.
[55] Transcript, page 278.
Ultimately, Seth’s evidence amounts to this: that at some point during the Meeting McDonald spoke about the fact that the workers may not be paid for four hours because of their attendance at the Meeting.[56] It is clear from the context that that was first raised prior to McDonald going up to the Mirvac office to see whether or not the workers’ pay was in fact going to be docked.[57]
[56] Transcript, page 258.
[57] Transcript, page 259.
McDonald’s evidence was clear. He said that the issue of whether there was going to be any docking of wages arose from the floor during the course of the Meeting.[58] McDonald expressly denied the suggestion that he said at the beginning of the Meeting that it was an unauthorised meeting and that the workers would be docked four hours pay.[59]
[58] Transcript, pages 314, 318 and 341-342.
[59] Transcript, page 339.
The Court considers that McDonald gave his evidence in a robust, sometimes colourful, but straightforward manner. He did not dissemble, and was prepared to make admissions against his interests, including his evidence:
a)as to whether or not he recalled phoning or leaving a message for Wakeling prior to the Meeting; and
b)that he put the resolution from the floor to go home to the vote by using the words “those for and those against”.
McDonald’s evidence also reads as being entirely logical and possible, and it appears to the Court that it is entirely consistent with the manner in which a meeting of construction workers might develop. McDonald’s evidence did not appear to the Court to be an attempt to avoid the truth, or to avoid any liability on his part, or the part of the Unions.
A significant number of other witnesses gave clear accounts that the issue of wages being docked and concerns about the status of the Meeting only arose toward the end part of the Meeting.
Pallot, also an assistant secretary of the Unions, was also present at the Meeting. His evidence is that the issue of whether or not the workers were to be paid for the Meeting arose during the Meeting, was not raised by McDonald, and that it “came off the shop floor”, Thereafter, he and McDonald went to the Mirvac office to find out whether or not the workers’ wages would be docked.[60] Pallot also denied that at the beginning of the Meeting McDonald told the Meeting that it was unauthorised and that Mirvac was going to dock four hours pay. Indeed, Pallot said that McDonald “would never have said that”, that he did not remember him saying that, that it was not possible that he might have said it, and he reiterated that McDonald “would never have said that”, and that he was “sure” that “if he [McDonald] had said something like that I would have remembered it.”[61] Under cross-examination, Pallot did not demur from his original evidence that the issue of the docking of workers’ pay arose from the shop floor during the Meeting.[62]
[60] Transcript, pages 363 and 365.
[61] Transcript, page 388.
[62] Transcript, page 389.
Hogan, who was employed by Mirvac as a safety representative at the Site, and who was the convenor of the “toolbox” or first part of the Meeting, which commenced at 7.00am, and which preceded McDonald’s address to the Meeting, said that he thought someone said from the floor “Are we going to get paid for this?”, and that that occurred at “the end of the meeting”.[63] Prior to that he had no concern as to whether people were going to be paid or not, primarily because there had been similar types of meetings in the four to six weeks previously for which there was no wages deduction.[64] Cross-examined as to how the issue of docking of wages arose in the Meeting Hogan’s evidence was unshaken.[65] Hogan’s evidence is clear and coherent throughout.
[63] Transcript, page 409.
[64] Transcript, pages 409-410.
[65] Transcript, page 424.
Milne, who was employed at the relevant time on Site by Mirvac as a labourer dogman, was elected as a co-delegate for the Site during the course of the Meeting. Milne was very unsure about aspects of what occurred at the meeting in terms of time and timing, but was absolutely clear that there was a question “from the floor” as to whether or not payment would be docked for the Meeting, and that once that matter had been raised he, McDonald and Pallot proceeded to the Mirvac office to make inquiries concerning that matter.[66] Again, that aspect of his evidence was not shaken in cross-examination.[67]
[66] Transcript, pages 436-437.
[67] Transcript, pages 452-453.
Jelleff was a builder’s labourer on the Site. He too gave evidence, again not shaken in cross-examination, that the issue of the docking of wages for the Meeting came from “the shop floor”.[68] Jelleff also denied that McDonald had raised the issue of lack of authorisation and docking of pay at the outset of the Meeting.[69]
[68] Transcript, page 466, see also transcript, pages 467, and 483-484.
[69] Transcript, page 483.
The fact that McDonald approached management following the completion of the Meeting to ask the question is consistent with his account that he did not know that the workers would be docked four hours wages or accept that the Meeting had somehow become unlawful.
The fact that McDonald did not have much to say during the course of the Meeting with Prebble is explicable on the basis that it was not a decision that Prebble had made, and the limited conversation he had with Wakeling was an inevitable consequence of the fact that, as Wakeling said in his evidence, Wakeling “didn’t give him a chance to” and “shut him [McDonald] down”.[70]
[70] Transcript, page 76.
The Court considers it inherently improbable that a union official of McDonald’s experience would have begun the Meeting by saying that it was unlawful or unauthorised and that wages would be docked four hours given:
a)the prospect of such a statement being used in proceedings against him; and
b)the damage it might do to his election prospects to knowingly involve workers in an incident which would cost them four hours wages.
The preponderance of evidence of those who attended the Meeting is that the issue of docking of wages arose during the course of the Meeting, and in fact toward the end of that part of the Meeting prior to McDonald, Pallot and Milne going to the Mirvac office. The evidence is that it arose “from the floor”, and was not raised by McDonald. That evidence was given by a number of witnesses, namely Pallot, Hogan, Milne and Jelleff, whose evidence as to the manner of the issue being raised, by whom it was raised, and when it was raised, was not shaken in cross-examination. Their evidence is consistent with that of McDonald, whose evidence, in this regard, the Court accepts, for reasons otherwise set out above.
The evidence of Whalen must, in the Court’s view, simply be mistaken. It is certainly against the overwhelming weight of the evidence to which the Court has had regard. The Court, therefore, does not accept as correct Whalen’s evidence that McDonald raised the issue of authorisation and docking of wages payments at the outset of the meeting.
The Director’s submissions attacked the use of the phrases “from the floor” or “from the shop floor” in connection with the motion to cease work for the day which was passed following McDonald returning from his meeting with Prebble. The submissions appeared to suggest that its use in this context was contrived. The phrase “from the floor” in its ordinary usage simply means: given by an individual member at a meeting, and not by one of those on the platform at the meeting.[71] The “shop-floor” is a phrase used to distinguish workers from management.[72] Historically, it was an expression used particularly with respect to factory workers organised in a union, and gave rise to the expression “shop-floor protest”.[73] One of the seminal British labour disputes of World War I occurred in the Clydeside munitions factories in 1915 when “an unofficial body consisting of shop stewards – the part time representatives of the unions on the shop floor” lead a fortnight’s strike of up to 10,000 engineering staff in defiance of their union officials.[74] In KF Walker’s classic study of Australian industrial relations systems the “accepted principle” of union organisation at an enterprise level “in most unions” was said to be that “union activity is carried to the shop floor by the officers of the union branch. These officers are, in general, the only official union representation in negotiations and consultations at the shop floor level.”[75] The phrase “from the floor” was in use by members of the CFMEU in the Australian steel industry in 2000.[76] The usage of the phrases in the evidence in these proceedings seems to the Court to be entirely consistent with the usual and historical meaning of those phrases, and their practical usage historically in a labour relations context, both in the United Kingdom and Australia. No adverse inference ought to be drawn from the use of the phrases by the Unions and worker witnesses in these proceedings.
[71] The Concise Oxford Dictionary of Current English, 7^th Edition (Oxford: Clarendon Press, 1984) page 375 (“Concise Oxford Dictionary”); R Allen, Allen’s Dictionary of English Phrases (London: Penguin, 2006) page 290.
[72] Concise Oxford Dictionary, page 976.
[73] The Free Dictionary, H Pelling, A History of British Trade Unionism, 3^rd Edition (Harmondsworth: Penguin Books, 1979) page 151. See also pages 154, 158, 166 and 178.
[75] KF Walker, Australian Industrial Relations Systems (Cambridge: Harvard University Press, 1970) page 403, citing K Hince, “Unions on the Shop Floor”, Journal of Industrial Relations (1967) Volume 9, No. 3, page 215.
[76] See Construction, Forestry, Mining and Energy Union v BHP Steel (AIS) Pty Ltd [2001] FCA 1758 at para.54 per Lee and Finn JJ.

It is the Court’s view that the issue of the docking of workers’ wages was raised by a worker from the shop floor, during the course of the Meeting, and most probably immediately before McDonald, Pallot and Milne went to the Mirvac office, for the specific purpose of finding out whether, in fact, the workers’ wages were to be docked or not. It follows, therefore, that the Court does not accept that McDonald was of the view that the Meeting was not authorised, or said that it was unauthorised at the beginning of the Meeting. Moreover, the Court accepts McDonald’s evidence that, because of the history of payment on Mirvac sites, and the manner in which similar meetings had previously been conducted, that there was no issue in his mind, as to whether the workers were going to be docked wages for the Meeting, until a question was raised by a worker from the floor in the course of the Meeting.

Whether the Meeting was “part of” the toolbox meeting

The structure of toolbox meetings

Prebble gave evidence that:
a)he did not personally ever attend the toolbox meetings so his view of what they consisted of is necessarily limited;
b)management expected the toolbox meetings to run for 20 minutes and to be concerned with reading out the Site Safety Committee Meeting minutes;
c)toolbox meetings had gone for longer than 20 minutes in the past;[77]
d)the safety representative and the Site Unions’ delegate had been told to keep the meetings to 20 minutes;[78] and
e)there had been no problem in relation to toolbox meetings which had occurred prior to 12 September 2008, despite their having gone for periods in excess of 20 minutes.[79]
[77] Transcript, page 36.
[78] Transcript, page 36.
[79] Transcript, pages 35 and 53.
Wakeling gave evidence that he did not know how the toolbox meetings were structured and that he had never been to one,[80] and that a practice of a safety discussion being followed by a general discussion may have developed, of which he was not aware as he did not attend these meetings.[81]
[80] Transcript, page 80.
[81] Transcript, page 83.
In cross-examination Wakeling gave the following evidence:
If I was to say to you that ordinarily the toolbox meeting would first consider safety issues but towards the end of the toolbox meeting it would invariably then turn to more general union issues---?---Well, general business, it would be.
General-general business?---Mm.
So you’d agree with me that that’s the normal course of events in these toolbox meetings?---yes.
Safety first?---In all Mirvac’s documentation, the first things that’s reported on everywhere is safety. The first thing so it’s just the standard procedure.
But you - but you agree with me that the meetings would then turn to consider general matters?---Yes. If anyone had something to say, yes. Obviously, that’s what they’re for.
Okay. And that could be anything, I suppose?---Absolutely.
And you had no problem with the toolbox meetings being conducted in that manner?---No.
And if – if I say to you that following the consideration of safety issues sometimes you would have the site delegate address people in relation to general union issues, would you have any opposition ---?---Yes.
You’d agree with that?---Yes.
And would you agree also that sometimes if there was an organiser or official from the CFMEU sometimes that individual would address the workers in relation to general matters?---If they needed to for whatever reason, yes.
And you had no difficulty with that?---No.
Wakeling then sought to qualify that evidence by saying that the toolbox meetings were Site specific and restricted to safety issues.[82]
[82] Transcript, page 82.
Dodd gave evidence that:
a)he does not actually attend the toolbox meetings,[83] but saw parts of the meetings being conducted as he made his way around the Site;[84]
b)toolbox meetings were ‘in a nutshell’ designed to relay the minutes of the previous Site Safety Committee Meeting to the workers;[85]
c)Hogan would read out the minutes from the previous meeting;[86]
d)a typical toolbox meeting would run for 40 minutes and some would go for close to an hour;[87]
e)matters other than safety must have been discussed at the toolbox meetings in order for them to run for the time that they actually took;[88] and
f)he was amazed at how long the toolbox meetings actually lasted.[89]
[83] Transcript, page 177.
[84] Transcript, page 178.
[85] Transcript, page 171.
[86] Transcript, page 172.
[87] Transcript, pages 172-173.
[88] Transcript, page 178.
[89] Transcript, page 178.
Whalen gave evidence that the toolbox meetings:
a)concerned safety issues;[90]
b)were intended to have a duration of 15 minutes;[91]
c)would typically run for 15 minutes to half an hour,[92] or sometimes for 40 minutes;[93]
d)if a Site delegate or other union official were present at the toolbox meeting, then they would from time to time raise non safety matters including union dues and other union matters with workers at, or immediately after, toolbox meetings;[94]
e)he knew that Mirvac wanted the meetings to adhere to a specific time frame and he knew this from attending the safety meeting conducted with “bosses” by Mirvac;[95] and
f)the issue of toolbox meetings going for too long in the past was:
i)not a big issue;
ii)one about which “people” knew; and
iii)nothing had ever come of it in the past.[96]
[90] Transcript, page 224.
[91] Transcript, page 244.
[92] Transcript, page 225.
[93] Transcript, page 245.
[94] Transcript, page 235.
[95] Transcript, page 244.
[96] Transcript, page 245.
McDonald describes an informal transition from the completion of Hogan’s safety report to McDonald addressing the workforce. McDonald describes:
a)the end of Hogan’s part of the Meeting as the end of his report;[97]
b)the health and safety part of the Meeting as ending following the conclusion of Hogan’s address;[98]
c)the end of the safety report as the end of that part of the Meeting only;[99]
d)that the part of the Meeting that he addressed could be described as a union meeting or as an extension of the health and safety meeting;[100]
e)the entire duration of Hogan’s address and his own part of the Meeting as forming part of the Meeting;[101] and
f)agrees that the toolbox or health and safety meetings dealt with safety which was sacrosanct and was not the appropriate forum for general union issues.[102]
[97] Transcript, page 311.
[98] Transcript, page 316.
[99] Transcript, page 338.
[100] Transcript, pages 345 and 332.
[101] Transcript, page 312.
[102] Transcript, page 337.
McDonald was asked in cross examination about toolbox or safety meetings in the context of an incident which occurred during the address given by Hogan involving the handing out election flyers. It is during this portion of the evidence that McDonald makes the observation that general union issues should not be ventilated during safety meetings.[103] It is clear that this portion of McDonald’s testimony is directed toward the importance of safety and the inappropriateness of interrupting Hogan during the health and safety part of the Meeting.[104]
[103] Transcript, page 337.
[104] Transcript, page 337.
McDonald was asked in cross examination whether ‘Your Meeting- or the part that you addressed – on 12 September 2008 was fairly characterised as a union Meeting?”. In answering this, McDonald made the point that he did not know whether his part constituted a separate meeting at all and that there was definitely no stop and start between the first two parts of the Meeting.[105]
[105] Transcript, page 345.
McDonald describes a similar meeting which had occurred a short time prior to 12 September 2008, and other meetings generally on the Site, which had gone for a longer period of time than the Meeting.[106]
[106] Transcript, page 316.
Hogan gave the following evidence in his examination-in-chief concerning the toolbox meetings:
Ordinarily, when you finish talking about safety issues, ordinarily what happens then?---Well, in Mirvac’s case they had a delegate on-site as well and he would bring up any union issues that needed discussing.
Who was that delegate?---Dave Simpson.
Would anyone else from time to time talk about other issues?---We had a few kind of what you call guest speakers from time to time.
Who were those guest speakers?---I remember at that time they had a guy, he was a paraplegic. He was brought on-site. He worked for one of the companies nationally. He was brought on-site to talk about falls, like he’d been obviously to let the workforce know what can happen in the event of not working safely on-site. There were a few other guest speakers as well from time to time, but I just can’t recall who they were.
When Mr Simpson would address the meeting, what type of things would he talk about?---He’d just bring up anything that was pertaining to the site, any union issues that he obviously thought concerned the blokes.
Was he the only person that would from time to time talk about those types of matters?---As a rule of thumb, yes, but we did have other people who’d come from time to time and talk about union issues as well.
Who were those other people?---One was Joe McDonald, he came occasionally.
So in the---?---Kevin – not Kevin, Graham Pallot came occasionally. They were probably the two that come to mind.
In the couple of months leading up to 12 September, how many times would you say Mr McDonald, for instance, attended at those meetings?---Off the top of my head, I’d say probably two or three.
Can you tell us anything about what those meetings involved, that is, the meetings in which Mr McDonald attended prior to 12 September? Can you tell us anything about how they were conducted?---Well, usually he would follow on from what I said and Simpson would say. He’ll say his, whatever he had to say, and he’d say, “Joe is here. He’s got a few things to say as well”, so that would be the lead up to the issues that he wanted to talk about.
Are you able to say in those previous meetings how long Mr McDonald would speak for?---Probably 20 minutes maybe, you know.
Can you tell us now what type of things he would talk to you about?---It depends on what is happening in the union in your area. If there’s a safety issue that happened, say, in the south-west or maybe the north-west that we weren’t aware of, he’d bring that to our attention or maybe over east, or there may be some union issues that were happening over east that we wouldn’t be aware of, but he’d bring it to our attention. There’s always interest in stuff like that.
What other things would arise at those meetings?---In what regard?
In relation to anything that Mr McDonald or other people were talking to you about?---Well, at the particular time, I think interest – there was a case happening over east with a guy called Noel Washington, but that would have got brought up. Obviously the union elections were pretty close at that time as well. That may have been a topic that would have been discussed.[107]
[107] Transcript, pages 402-403.
The evidence of Hogan when viewed in its context is consistent with the conclusion that a toolbox meeting would ordinarily consist of a safety discussion, which Hogan conducted, followed by a more general discussion that the Site delegate and or other union officials would conduct, which discussion might include safety issues, but which might also range as wide as “what is happening in the union in your area”, and “union issues that were happening over east”, and he referred to particular examples, including that of Noel Washington and the forthcoming elections in the Unions.[108]
[108] Transcript, pages 402-403. From the evidence generally, it would appear that Washington’s case was something of a cause celebre. He had seemingly refused to answer questions during an examination by the ABCC, and in respect of which it would appear that there were court proceedings on foot.
Cross-examined about whether questions and issues raised at toolbox meetings concerned only safety,[109] Hogan said that his part of the meetings concerned safety, but he was not attempting to give a definitive description to the meetings as a whole.[110]
[109] Transcript, page 415-416.
[110] Transcript, page 416.
It was clear from all of the evidence, including that given by Hogan that the initial part of the Meeting conducted by Hogan concerned safety and it was inappropriate to raise non safety issues during that part of the Meeting. In cross-examination Hogan agreed with McDonald’s analysis that toolbox meetings were not the appropriate forum to ventilate union issues. Hogan was referring to only the first part of the Meeting, just as McDonald was doing when he made the relevant comments.
Hogan’s evidence is important. That is because Hogan was a Mirvac employee. Mirvac employed Hogan as a safety representative.[111] Hogan attended as a Mirvac safety representative the Mirvac Site Safety Committee meetings, attended by other Mirvac representatives including Site supervisors, Site managers, the Site nurse and representatives of various contractors on Site.[112] Hogan also chaired the first part of the toolbox meetings. He did so in his capacity as Mirvac’s safety representative. It cannot therefore be asserted that Mirvac were unaware of what was happening at the toolbox meetings, for it was their representative that chaired them. This was the same representative that attended the Site Safety Committee meetings. In any event, it is also apparent that Prebble, the construction manager, and Dodd, a Site supervisor, also both employed by Mirvac, and present on the Site, were aware that, at the very least, toolbox meeting were taking longer than the time necessary to simply deal with the safety issues arising from the Site safety meetings, or safety issues generally, and were dealing with other more general issues.
[111] Transcript, page 398; Exhibits A15 and A16.
[112] See Exhibits A15 and A16.
Other witnesses also confirmed that non safety issues would routinely be raised at these toolbox meetings.
Seth gave evidence that:
a)the safety representative and the Site steward would ordinarily conduct the toolbox meetings;[113]
b)the toolbox meetings would discuss “various issues”;[114]
c)he did not regard the presence of McDonald or Pallot at the Meeting as anything out of the ordinary;[115] and
d)he had seen McDonald at toolbox meetings in the past, and he had seen McDonald addressing toolbox meetings previously.[116]
Seth was not challenged in relation to this evidence.
[113] Transcript, page 252.
[114] Transcript, page 252.
[115] Transcript, page 274.
[116] Transcript, page 274.
Jelleff was clear in his evidence that the toolbox meetings included both a safety and a general union component.[117] Jelleff was equally clear that the part of the Meeting conducted by Hogan was strictly about safety issues.[118]
[117] Transcript, pages 460 and 478.
[118] Transcript, page 460.
There was no evidence that any direction had been made by Mirvac to the employees engaged on the Site that only safety matters could be ventilated at the toolbox meetings. There was some evidence that the Site delegate and Site safety representative had been spoken to in relation to the length of these meetings,[119] but no evidence that it had been explained to them that only safety issues could be discussed. If it had been explained to them, or been the subject of an instruction by Mirvac, it was certainly not a matter the subject of any enforcement by Mirvac.
[119] Transcript, page 36.
It may have been Mirvac’s intention that toolbox meetings be restricted to Site safety issues. The practice, however, was, on the evidence, entirely different, and it was a practice which was known to relevant Mirvac employees, and which was condoned, and if not condoned then certainly tolerated, by Mirvac management.
The minutes of the Site Safety Committee Meeting held on 24 September 2008 include the following passage:[120]
Concerns about the site tool box Meeting being stopped. All trades to consult at there [sic] own tool box's [sic] until further notice Mirvac [sic] wish to advise that over a period of time they have been exploited and ran over the agreed time limit as well as being used as a forum for discussing non-related HSE issues.[121]
[120] At page 4 of 7.
[121] Exhibit A16.
The minutes of the Site Safety Committee Meeting conducted on 24 September 2008 confirm the view that the toolbox meetings had over a period of time run for more than 20 minutes, and had dealt with non-health and safety issues. The minutes of the 24 September 2008 Site Safety Committee Meeting show that that meeting was attended by a number of senior Mirvac managers from Site, the safety co-ordinator for Mirvac, and Hogan. It is plain from the minutes that the practice of toolbox meetings running overtime and dealing with non-health and safety topics was not one known to Mirvac prior to the Meeting.
The evidence makes it plain that up until 12 September 2008, and including that date, toolbox meetings consisted of:
a)a safety report by Hogan; and
b)a general business, including general union business, report, which was usually given by the Site delegate, Simpson, but was also not irregularly given, or supplemented, by McDonald, and which dealt with more than Site safety issues, such as safety issues from other sites, and more general issues of union business and concern, including, for example forthcoming elections for the Unions and court proceedings against a union official for failure to answer questions put by the ABCC.

Length of toolbox meetings

Given the Court’s conclusions with respect to the structure of toolbox meetings, as set out immediately above, the length of the toolbox meetings is largely irrelevant. On the evidence, however, it is clear that up to and including the Meeting, toolbox meetings took anywhere between 15 minutes and an hour, depending upon the nature of the reports given at the toolbox meetings.

Consideration

The weight of the witness evidence confirms that general matters including union matters would commonly be discussed after safety matters had been dealt with at the toolbox meetings.[122] It is artificial and contrary to the evidence to view this as a second and separate meeting simply because the discussion concerning safety issues had concluded and discussions concerning general or union matters had begun. The Court considers that the Meeting was a toolbox meeting which was conducted in the same manner as previous toolbox meetings, and which, in all the circumstances, was so conducted with the knowledge of Mirvac (through its employees and management) and, therefore, impliedly authorised by Mirvac.
[122] Transcript, pages 80-81.
The Meeting was not made unlawful or unauthorised because it turned to non safety matters following the conclusion of the discussion about safety issues.

The decision in relation to the Stoppage

Because the issue of docking of wages had arisen at the Meeting, McDonald, Pallot and Milne went to Mirvac’s office to find out whether or not workers’ wages were to be docked in relation to their attendance at the Meeting.
It is not necessary to make any finding as to precisely what happened at the very brief interchanges between Mirvac management and the Unions’ officers and delegate. It suffices to observe that Mirvac management were not for turning on the issue of docking of wages, and brusquely and without equivocation let the Unions’ officers and delegate know that the workers were going to be docked for four hours for their attendance at the Meeting, or at least that part of it which McDonald had addressed. There was no point in protest from the Unions’ officers and delegate: they were not given the chance, and were “shut down” and told to “get out” by Wakeling.[123]
[123] Transcript, page 76.

McDonald, Pallot and Milne returned to the area in which the Meeting was held. They reconvened the meeting. McDonald, and to a lesser extent both Pallot and Milne, told the workers assembled that their wages were to be docked for four hours for their attendance at that part of the Meeting which had been addressed by McDonald. What followed was “screaming … a lot of hysteria … [and] and a lot of men … very upset”[124] and an angry reaction along the lines of “Fuck them then. If they’re going to dock us four hours, we’ll fuck off”.[125] That reaction prompted a suggestion from the floor that there be a vote as to whether the workers should go home. McDonald, who on the evidence of all of those who were present at this part of the Meeting, was, notwithstanding the workers’ reaction, still in control of the Meeting. McDonald admits that there was a show of hands in response to his call for an indication of “those for and those against”.[126] The show of hands was clearly for the workers to go home that is to leave the Site. McDonald admits that he then said “Majority rules. End of meeting. Go home.”[127] McDonald denies saying that the Site was shut, and, as he rightly points out, there were still other workers, such as electricians, working on the Site.[128] There is no dispute on the evidence that the vast majority of the workers eligible to be members of the Unions did leave the Site, and did not work, or return to work, for the remainder of 12 September 2008.

Were the Meeting and Stoppage industrial action?

[124] Transcript, pages 439 and 440.

[125] Transcript, page 440.

[126] Transcript, page 350.

[127] Transcript, page 352.

[128] Transcript, page 352.

The Meeting

The Meeting was not “industrial action” or “building industrial action” under the WR Act and BCII Act respectively. The Meeting, up until the time of the Stoppage, was a toolbox meeting of a kind not different to the usual toolbox meeting on Site, and one which, in any event, was conducted with the implied authority of Mirvac. It was work as usual. Because it was not “building industrial action” no necessity arose for there to be advance written agreement with respect to the Meeting.

The Stoppage

“Industrial action” and “building industrial action” under the WR Act and BCII Act respectively, exclude action that is authorised or agreed to by the employer of the employees concerned.[129] With respect to the Stoppage there is no issue that the Stoppage was not authorised or agreed to by any employer.
[129] WR Act, s.420(1) BCII Act, s.36(1).
Section 494(1) of the WR Act prohibits employees and unions who are subject or party to a workplace agreement that has not passed its nominal expiry date from engaging in or organising industrial action. In this case, the relevant workplace agreement is the Mirvac Constructions WA Pty Ltd and the CFMEU Building and Construction Industry Enterprise Agreement 2005-2008,[130] which expired on 31 October 2008 (that is, after the events in question).
[130] Exhibit A2 (“Mirvac Certified Agreement”).
The Director’s claim under s.494(1) of the WR Act is limited to the action by employees of Mirvac – they are the only employees at the Site in respect of whom the Mirvac Certified Agreement applied. Other than those from whom the Court heard evidence,[131] there is no direct evidence of the attendance by Mirvac employees at the Meeting, nor of their subsequent absence from the Site for the day. The Court accepts that the absence of Mirvac employees can, however, be inferred from other evidence, including:
a)that the Meeting was attended by all workers at the Site;[132]
b)that the overwhelming majority of those workers subsequently left the Site;[133] and
c)that only four of Mirvac’s 22 direct-hire employees performed any work at the Site on 12 September 2008.[134]
[131] Namely, Messrs Royle, Hogan, Milne and Jelleff.
[132] Transcript, pages 26, 81, 98 and 173.
[133] Transcript, page 231.
[134] Exhibit A3.
“Industrial action” is defined in s.420(1) of the WR Act. Relevantly, it includes:
(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.
The Stoppage constituted industrial action for the purposes of s.420(1)(c) of the WR Act because it was a failure by employees to attend for work at a time when they were contracted to attend for work, that is, that time after the expiry of the four hours for which wages were to be docked. That docking, as it related to the conduct of the Meeting, would, on any version of the evidence, have expired by 1.00pm on 12 September 2008 at the latest. Whether or not the docking of the workers’ wages was lawful in the circumstances prevailing prior to the Stoppage is a matter it is not presently necessary to determine.[135]
[135] It may become a relevant consideration at a later stage, for example, if it is necessary to determine the nature and extent of the circumstances relevant to any penalty, if the Court determines that there is a contravention or contraventions of the WR Act and BCII Act.
The respondents rely upon comments of the Full Bench of the Australian Industrial Relations Commission in The Age Company Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia.[136] That case, in which the Full Bench found that the termination of employees’ employment did not constitute industrial action because it did not amount to a “ban, limitation or restriction on the performance of work” (which was the part of the definition relied upon),[137] is legally and factually distinguishable. The Stoppage is not a ban, limitation or restriction on the performance of work, but a failure to attend for work, and, legally distinguishable because it concerns a different part of the definition of industrial action to that considered in The Age. Factually, it is distinguishable because this is not case concerning termination of an employee’s employment by an employer. Rather, this case concerns matters of the most fundamental industrial, employment and contractual character: namely, the payment of wages in return for the promise of work, and the performance of work in return for the promise of wages.[138]
[136] (2004) 133 IR 197 (“The Age”).
[137] The Age IR at 206 per Giudice J, President, Harrison SDP, Simmonds C; ALMD at paras.32-35 per Giudice J, President, Harrison SDP, Simmonds C.
[138] Dietrich v Dare (1980) 30 ALR 407 at 411 per Gibbs, Mason and Wilson JJ.
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia & Anor v Laing & Anor,[139] also concerned s.127 of the WR Act (as then in force). In that case, a union organised for employees of a power station south of Perth to strike as part of a coordinated campaign by the WA Trades and Labour Council against State industrial legislation reforms. The Australian Industrial Relations Commission ordered, under s.127 of the WR Act, that that action stop. The Federal Court of Australia, judgments of which are binding on this Court,[140] considered whether such a stoppage of work – or a ban, limitation or restriction on the performance of work – was industrial action to which s.127 could apply. The Court concluded that it was. In particular, the Court noted, under the heading “Conduct to which s 127 expressly applies”:
[139] (1998) 89 FCR 17 (“Laing”).
[140] Suh & Ors v Minister for Immigration & Citizenship & Anor (2009) 175 FCR 515 at 522 per Spender, Buchanan and Perram JJ; [2009] FCAFC 42 at para.29 per Spender, Buchanan and Perram JJ.
Industrial action may be caught by the section notwithstanding that it is intended to send a signal or communicate some message other than about a dispute with the employer. It is not necessary for the application of s 127 that it relate to an industrial dispute if it relates to work regulated by an award or a certified agreement. Thus employees might stop work without the authority of their employer and in breach of their contract of employment in order to attend a rally at Parliament House or some other form of demonstration or public Meeting to express views about some issue not arising out of their relationship to their employer. In such a case where their work is regulated by an award or a certified agreement, s 127 is capable of application.
...
There is no doubt a spectrum of conduct within the class of industrial action which ranges from that which is primarily disruptive and designed to impose sanctions on the employer in relation to a grievance to that which is primarily intended to send a signal or make a communication whether about a grievance or some collateral matter and involves little or no disruption or inconvenience.[141]
[141] Laing at 31 per French J.
Both fundamentally, for reasons set out above, and following the judgment in Laing, this Court finds that the Stoppage was “industrial action”, at least insofar as it related to that period of time for which the workers were obliged to work following the expiration of the four hour period for which their wages were otherwise being docked. It follows that the Stoppage constituted “industrial action” (organised by McDonald) for the purposes of the WR Act and that, to the extent that it involved the Mirvac employees bound by the Mirvac Certified Agreement, was in contravention of s.494(1) of the WR Act.
The same conclusion follows with respect to the definition of “building industrial action” under s.36(1)(d) of the BCII Act , but whether there was a contravention of s.38 of the BCII Act depends upon whether there was “unlawful industrial action” as defined in s.37 of the BCII Act. That in turn depends upon whether the Stoppage was “industrially-motivated”.

Was the Stoppage industrially-motivated?

There were very lengthy submissions concerning the meaning of the phrase “industrially-motivated” for the purposes of the definition in s.36(1) of the BCII Act, and therefore unlawful industrial action under s.37(a) of the BCII Act, which is prohibited by s.38 of the BCII Act. Ultimately, the construction of the phrase “industrially-motivated” means no more than it says: that is, “motivated by one or more of the following purposes, or by purposes that include one or more of the following purposes” and relevantly those purposes were argued to be:
(c) advancing industrial objectives of an industrial association;
(d) disrupting the performance of work.
There is a need to give some role to the express words “motive” and “purpose” in determining whether the action is industrially motivated. The definition of “industrially-motivated” in s.36(1) of the BCII Act , which requires that some specific motive and purpose has to be identified before an action can be described as constituting “building industrial action”.
There is a clear requirement in respect of an application made under s.38 of the BCII Act that the relevant action has to be motivated by a specific purpose. Whether some consequence is a likely or even inevitable consequence of an activity does not convert this consequence into the motive or purpose for the action.
A “motive” is relevantly “what induces a person to act”.[142] A motive or purpose may therefore be found in the plan or the reason explaining why action was taken.
[142] Concise Oxford Dictionary, page 660.
What is it that motivated the action, that is, in this case, the Stoppage?
The evidence discloses that what was said at the time that the vote was taken with respect to the Stoppage was along the following lines:
a)McDonald said that:
i)“There was a call from the floor to go home for the rest of the day …”;[143]
[143] Transcript, page 319.
ii)what “they”, meaning the workers on the floor, said was “This is bullshit. We should fuck off for the day” (or words to that effect);[144]
[144] Transcript, page 320.
iii)“It was a resolution came from the floor to go home.”;[145] and
[145] Transcript, page 350.
iv)he asked for a show of hands in favour of who was for and who was against the resolution which had come from the floor, which was whether or not the workers ought to go home;[146]
[146] Transcript, pages 350-351.
b)Pallot said that:
i)“Eventually, there was a vote on the shop floor where people said they’re going to go home.”;[147] and
[147] Transcript, page 367.
ii)“…there was a lot of confusion, and people just saying, get stuffed, I’m out of here, let’s go, and that’s where they went. They just went.”;[148]
[148] Transcript, page 368.
c)Hogan said that:
i)when McDonald came back from the Mirvac office that the workers were “Pretty displeased, to put it mildly. … and someone says, ‘Well, if we’re not getting paid we might as well go’”;[149]
[149] Transcript, page 410.
ii)there was a “show of hands about going home and the decision was pretty unanimous”, and when asked what the show of hands was in relation to, said “As to they were going home because they weren’t getting paid.”;[150] and
iii)confirmed that the vote in favour of going home was because “We weren’t getting paid.”;[151]
d)Milne said that:
i)“People were screaming if they were going to dock us for four hours, basically then we’ll go home, basically.”;[152]
ii)“Well, basically, it was, you know, ‘fuck them then. If they’re going to dock us four hours, we’ll fuck off,’ or words to that effect.”;[153]
iii)in response to the question “Why is it that you went home?”, he said that “Because I didn’t agree with being docked four hours for something so childish.”[154]
iv)“…people on the floor were very disgruntled and they – basically their words were, ‘If they’re going to dock us four hours, we’ll go home. Fuck them’”;[155] and
v)that the show of hands was called “as to who wanted to go home”;[156] and
[150] Transcript, page 411.
[151] Transcript, page 426.
[152] Transcript, page 439.
[153] Transcript, page 440.
[154] Transcript, page 441.
[155] Transcript, page 455.
[156] Transcript, page 456.
e)from Jelleff as follows:
What happened then?---Well, Joe and Phil Milne, they went into the Mirvac office. They were only in there a very brief period, then they come out and Joe said, “Yes, Mirvac are going to dock you for four hours”.
Did he say anything else?---No, but I do recall there was a couple of people said, “Well, if they’re going to dock us for four, they might as well dock us for eight”.
Who said that?---A couple of blokes at the back.
What, at the back of you?---Yes.
What happened then?---Well, from there what happened was that it was just decided by the workforce that we’re going to all leave and go.
What did you think about that decision?---I thought it was fair. I thought it was fair.
Why was that? Why did you think it was a fair decision, Mr Jelleff?---Well, I thought if we’re going – you know, if we’re going to get docked for four hours and, you know, we’d only been – your know, the meeting had only been going for an hour, that meant that we were going to be docked for three hours for working, you know, or three hours work that we were going to perform and we weren’t going to be paid for.
So someone has said or some people have said, “If were going to be docked for four, we may as well be docked for eight”. What’s happened after that, Mr Jelleff?---It just seemed to – everybody seemed to agree that – it was so quick, everybody seemed to agree to go, leave site.
How was that agreement made?---Just voices, just voices.
What were the voices doing?---Yes, well – yes, well, it’s all agreed. Everybody agreed.[157]
[157] Transcript, pages 467-468.
It is clear that, at least in part, the Stoppage was motivated by the fact that the workers’ wages were being docked for a period of four hours. It was thus motivated by the fact that they were not going to be paid. That does not fit with either of the purposes for which the Director argued that the conduct was industrially-motivated.
There was, however, on the evidence a further possibility, and that is that the Stoppage was motivated by the purpose of disrupting the performance of work.
The use of phrases such as “fuck them” does not, on a consideration of the totality of the evidence, seem to be driven by the notion of disrupting the performance of work. Rather, it seems to be used as a profanity and a term of damnation against Mirvac for ordering the docking of four hours wages for attendance at the Meeting. In this sense, it is used in accordance with the second meaning set out in the Oxford English Dictionary, namely:
Used profanely in imprecations and exclamations as the coarsest equivalent of DAMN.[158]
[158] The Oxford English Dictionary, Second Edition (Clarendon Press: Oxford, 1989) Volume VI, page 237.
The use of the expression “They may as well dock us for eight” is used in juxtaposition to the fact that the workers had been docked wages for four hours. It says nothing about a purpose of disrupting work, but rather reflects a view that having lost four hours wages, the workers were prepared to lose eight. In that context, it must be borne in mind that it was a Friday, and that the day would be half over by the time that the workers would otherwise had to have returned to perform paid work on Site.
Both the use of the phrases “fuck them” and “they might as well dock us for eight” seem to be borne of a sense of anger and frustration arising from the docking of wages for four hours, rather than any intention to, or purpose of, disrupting work. The Stoppage may have had the effect of disrupting the performance of work, but on the evidence, it was not, in the Court’s view, part of the purpose for the action which constituted the Stoppage. The Stoppage was therefore not industrially-motivated.
Because of the manner in which the Stoppage arose, namely as a sudden, and seemingly visceral, reaction to being docked for four hours wages it does not appear to the Court that the evidence supports any suggestion that the action was taken to advance the industrial objectives of an industrial association. The industrial objectives of the Unions did not, on the evidence, play any part in the reaction of the workers to the views that Mirvac was going to dock workers for four hours wages, and the subsequent show of hands as to whether the workers should go home.
Finally, bearing in mind that this is a civil penalty proceeding, and having regard to the relative gravity of a civil penalty proceeding, the Court is not persuaded that the evidence establishes either of the purposes contended for by the Director in aide of the conduct being characterised as industrially-motivated.[159]
[159] Evidence Act, s.140(2).
In the circumstances, there was, therefore, no unlawful industrial action for the purposes of s.38 of the BCII Act, because there was no “building industrial action” which was unlawful, because it was not industrially-motivated. The Director’s claim with respect to the BCII Act must therefore fail.

Conclusion with respect to contraventions

With respect to the alleged contraventions:
a)a contravention of s.494(1) of the WR Act has been established; and
b)no contravention of s.38 of the BCII Act as alleged has been established.

Liability of the CFMEU and CFMEUW

Lengthy submissions were put by each of the parties with respect to the issue of whether the Unions were directly or vicariously liable for the conduct of McDonald.
Section 826(2) of the WR Act provides that:
Any conduct engaged in on behalf of a body corporate by:
(a)an officer, director, employee or agent of the body corporate within the scope of his or her actual or apparent authority; or
(b)any other person at the direction or with the consent or agreement (whether express or implied) of an officer, director, employee or agent of the body corporate, with the giving of the direction, consent or agreement is within the scope of the actual or apparent authority of the officer, director, employee or agent;
shall be taken for the purposes of this Act … to have been engaged in also by the body corporate.

During the Meeting, and in particular from the time the issue of docking of wages was raised, McDonald was, and continued to, act in his capacity as Assistant Secretary of the Unions. The actions undertaken by him, including going to see Mirvac management in the Mirvac offices, re-convening the Meeting and telling the workers that their wages were to be docked, controlling the Meeting once re-convened, and putting the question as to whether the workers would go home, and announcing the outcome of the show of hand on that question, were all acts in McDonald’s capacity as Assistant Secretary of the Unions. Advocating as to the interests of members in respect of industrial matters was part of his role as an Assistant Secretary, as was the conduct of the Meeting. The matters to be dealt with on 12 September 2008 were simply “part and parcel of the role” that McDonald held as a union official.[160] As such his actions at the Meeting were within the scope of his actual or apparent authority as Assistant Secretary of the Unions, and in the course of his employment as Assistance Secretary with the Unions. The conduct that was engaged in was conduct engaged in on behalf of the Unions. The consequence of that conduct was a contravention of s.494(1) of the WR Act. That conduct was conduct also engaged in on behalf of the CFMEUW, and therefore conduct which by reason of s.826(2) of the WR Act renders the CFMEUW liable.[161]
[160] Transcript, pages 326-329.
[161] A & L Silvestri Pty Ltd v Construction, Forestry, Mining and Energy Union (2007) 165 IR 94 at 116 per Gyles J; [2007] FCA 1047 at paras.71-72 per Gyles J; Seven Network (Operations) Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia & Ors (2001) 109 FCR 378 at 389 per Merkel J; [2001] FCA 456 at paras.45-47 per Merkel J. See also Walplan Pty Ltd v Wallace (1985) 8 FCR 27 at 38 per Lockhart J (with whom Sweeney and Neaves JJ agreed at 28 and 39 respectively).
In the circumstances, the Unions are therefore also liable for the contravention of s.494(1) of the WR Act, by reason of the provisions of s.826(2) of the WR Act.
The Unions are also vicariously liable for McDonald’s conduct. His conduct was in the course of his employment as an Assistant Secretary with the Unions. Furthermore, his conduct on the day at the Meeting, of which he was in control and where he put to a show of hands by the workers a resolution that they go home, is sufficient to establish that he was, for all practical purposes, the directing mind and will of the Unions at the Meeting.[162]
[162] Hanley v Automotive, Food, Metals, Engineering, Printing & Kindred Industries Union & Anor (2000) 100 FCR 530 at 545-550 per Ryan, Moore and Goldberg JJ; [2000] FCA 1188 at paras.66-85 per Ryan, Moore and Goldberg JJ.

How many contraventions?

The conduct the subject of the findings of contravention gives rise to a single contravention of s.494(1) of the WR Act by each of McDonald and the Unions.

Conclusion

The Court has concluded that by reason of the conduct of McDonald at the Site on 12 September 2008 each of McDonald and the Unions have contravened s.494(1) of the WR Act. There will be a declaration accordingly.
The Court will hear the parties as to further directions with respect to penalty.

I certify that the preceding one hundred and twenty-three (123) paragraphs are a true copy of the reasons for judgment of Lucev FM

Date: 26 October 2012