FEDERAL CIRCUIT COURT OF AUSTRALIA
| DIRECTOR OF THE FAIR WORK BUILDING INDUSTRY INSPECTORATE v CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION & ORS (No.2) | [2016] FCCA 3322 |
| Catchwords: PRACTICE AND PROCEDURE – Application to strike out paragraphs of statement of claim – meaning of “material facts” – meaning of stating “conclusions drawn from unstated facts” – whether statement of claim pleads conclusions drawn from unstated facts – whether open to plead that distinct acts taken by different officers of a body corporate can be treated as continuous conduct – some paragraphs of the statement of claim struck out. |
| Legislation: Building and Construction Industry Improvement Act 2005 (Cth), s.37 Federal Circuit Court Rules 2001 (Cth), Part 7, Division 45.3 Federal Circuit Court Rules 2001 (Cth), Schedule 3, Part 2, Items 7-13 |
| 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 (NEW SOUTH WALES BRANCH) |
| Third Respondent: | BRIAN PARKER |
| Fourth Respondent: | RITA MALLIA |
| Fifth Respondent: | MICHAEL GREENFIELD |
| Sixth Respondent: | DARREN GREENFIELD |
| Seventh Respondent: | LUKE COLLIER |
| Eighth Respondent: | TONY SLOANE |
| Ninth Respondent: | ROBERT KERA |
| Tenth Respondent: | SALVATORE MANNA |
| Thirteenth Respondent: | FRANCIS O'GRADY |
| Fourteenth Respondent: | MARTIN WYER |
| File Number: | SYG 332 of 2016 |
| Judgment of: | Judge Manousaridis |
| Hearing date: | 12 September 2016 |
| Delivered at: | Sydney |
| Delivered on: | 21 December 2016 |
REPRESENTATION
| Counsel for the Applicant: | Mr M White SC with Mr Y Shariff |
| Solicitors for the Applicant: | Corrs Chambers Westgarth |
| Counsel for the First to Tenth and Fourteenth Respondents: | Mr J Pearce |
| Solicitors for the First to Tenth and Fourteenth Respondents: | Taylor & Scott Lawyers |
| Solicitors for the Thirteenth Respondent: | Mr P Pasfield of Slater Gordon |
ORDERS
Paragraphs 45, 46(b), 48, 49, 50, 51, 51A, 52, 55, 55A, 77(a1), 108(c), 108(d), 108(g), 108(h), 140(a), 140(b), 140(b1), 140(f), 160(d), 182, 183, 184, 184A, 184C, 192, 193, 194, 194A, 194B, 199, 200, 201, 201A, 202, 203, 204, 205, 205A, 206, 207, 208, and 209 of the amended statement of claim filed on 10 June 2016 be struck out.
The applicant has liberty to apply for leave to replead the paragraphs of the statement of claim referred to in order 1.
The application in the case filed by the first to tenth and fourteenth respondents on 22 June 2016 is otherwise dismissed.
The costs of the application in a case are reserved.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 332 of 2016
| DIRECTOR OF THE FAIR WORK BUILDING INDUSTRY INSPECTORATE |
Applicant
And
| CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION AND OTHERS |
First Respondent
| CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION (NEW SOUTH WALES BRANCH) |
Second Respondent
| BRIAN PARKER |
Third Respondent
| RITA MALLIA |
Fourth Respondent
| MICHAEL GREENFIELD |
Fifth Respondent
| DARREN GREENFIELD |
Sixth Respondent
| LUKE COLLIER |
Seventh Respondent
| TONY SLOANE |
Eighth Respondent
| ROBERT KERA |
Ninth Respondent
| SALVATORE MANNA |
Tenth Respondent
| FRANCIS O'GRADY |
Thirteenth Respondent
| MARTIN WYER |
Fourteenth Respondent
REASONS FOR JUDGMENT
Introduction
The first to tenth and the fourteenth respondents (respondents) apply for orders that most of the amended statement of claim (statement of claim) be struck out.[1] By that statement of claim the applicant (Director) alleges that three or more of the respondents engaged in conduct that contravened s.340, s.343, and s.362 of the Fair Work Act 2009 (Cth) (FW Act).
[1] The amended statement of claim was filed on 10 June 2016.
In broad terms, the Director alleges that on five occasions during the period commencing on 14 February 2015 and ending on 17 February 2015, the first and second respondents (CFMEU and CFMEU NSW respectively), and one or more of the other respondents, organised, and took action with others to prevent or hinder the employees of subcontractors from carrying out concrete pouring work at two building sites. The Director alleges the respondents organised and participated in that action because the CFMEU and CFMEU NSW were in dispute with De Martin & Gasparini Pty Ltd (DMG), being the company who had engaged the subcontractors to perform the work at the building sites. The dispute related to the terms of a proposed enterprise agreement that was to be binding on members of the CFMEU, and which was to replace an enterprise agreement whose term was due to expire.
The Director alleges the respondents organised and took part in the action to prevent or hinder the employees of the subcontractors from carrying out the concrete pouring work with the intention of coercing DMG to agree to the terms of a proposed enterprise agreement favoured by the CFMEU and CFMEU NSW. The Director alleges that the object of the respondents’ intended coercion, namely, DMG’s ability to make an enterprise agreement, was a workplace right within the meaning of s.341(1)(b) and s.341(2)(e) of the FW Act, and that the respondents, therefore, organised and took part in the action with the intent of coercing DMG to exercise its workplace right in a particular way, contrary to s.343(1) of the FW Act. The Director also alleges that the respondents’ actions constituted “adverse action” within the meaning of s.342 of the FW Act, and that, contrary to s.340 of the FW Act, the respondents took such adverse action because DMG had exercised a workplace right by rejecting a proposed enterprise agreement the CFMEU and CFMEU NSW had submitted to DMG.
The respondents contend the relevant paragraphs of the statement of claim do not comply with one or more of the rules of pleading. Their principal objection is that most of the paragraphs of the statement of claim plead conclusions without stating the facts on which such conclusions are said to be based.
To be in a position to consider the application, it will be necessary first to say something about the procedural context in which the application is made, and the relevant principles I must apply to the respondents’ attack on the statement of claim. It will then be necessary to outline the elements of s.340 and s.343 of the FW Act, and summarise the statement of claim.
Procedural context
The requirements for commencing a proceeding in this Court for a contravention of a general protection provision mentioned in Part 3‑1 of the FW Act are, in part, regulated by Division 45.3 of Part 7 of the Federal Circuit Court Rules 2001 (Cth) (FCC Rules). Where, as is the case here, the proceeding does not involve an allegation that an employee was dismissed in contravention of a general protection provision, r.45.08 of the FCC Rules applies. That rule provides that an application for an order in relation to an alleged contravention of a general protection provision mentioned in Part 3-1 of the FW Act must be in accordance with the approved form, and must be “accompanied by a claim in accordance with the approved form”.
The Director commenced this proceeding on 15 February 2016 by filing a form approved for the purposes of r.45.08 of the FCC Rules. The application, however, was not accompanied by a form 4, being the “claim in the approved form” for the purposes of r.45.08 of the FCC Rules. Instead, the Director filed a statement of claim. By consent, on 9 March 2016 I ordered that the matter proceed by way of pleadings.
Although the FCC Rules permit the filing of a statement of claim, they do not contain rules governing pleadings. Under r.1.05(3)(b) of the FCC Rules, the rules of Part 16 of the Federal Court Rules 2011 (Cth) (FC Rules) identified in items 7-13 of Part 2 of Schedule 3 to the FCC Rules, apply to pleadings that are filed in this Court. Thus, the respondents’ application is to be determined by the application of the relevant FC Rules on pleading.
Principles
The word “pleading” refers both to particular classes of documents parties may be required to file and serve pursuant to rules of court, and to a process. When used to describe documents, the word “pleading” usually denotes one of the documents that are named “statement of claim”, “defence”, and “reply”. These documents are prepared and filed in a sequence: first the statement of claim, then the defence, and, finally, in some cases, the reply. The statement of claim is prepared by the applicant, who files and serves it on the respondent; the respondent prepares a defence in response to the statement of claim which, in turn, he or she files and serves on the applicant; and, where occasion requires it, the applicant responds to the defence by preparing and filing a reply, and serving it on the respondent. When used to describe a process, “pleading” denotes this sequence of preparing, filing, and serving the statement of claim, defence, and, where necessary, the reply.
Although pleadings have some common features, and there are rules that apply to all pleadings, each class of pleading serves a different function. And there are statements in the cases about the functions of pleading viewed as a process. In the application before me, however, I am only concerned with a statement of claim.
A statement of claim must identify a set of alleged facts that have a particular quality, that quality being that, if established, they will or may entitle the applicant to the remedy or remedies the applicant claims. This required quality of the alleged facts is given the name “material facts”.[2] The expression “material facts”, when used in the context of a statement of claim, are facts whose existence is “necessary for the purpose of formulating a complete cause of action”.[3] A “cause of action”, in turn, has been defined as “a factual situation the existence of which entitles one person to obtain from the court a remedy against another person”.[4]
[2] FC Rules, r.16.02(1)(d)
[3] Bruce v Oldhams Press Ltd [1936] 1 KB 697 at 712 quoted with approval by Goldberg J in Angelo Mitanis & Anor v Pioneer Concrete (Vic) Pty Ltd & Ors [1997] FCA 1040; (1997) ATPR 41-591at page 44, 152
[4] Letang v Cooper [1965] 1 QB 232 at pages 242-243
Most rules of court require that a statement of claim state material facts. It is required by r.16.02(1)(d) of the FC Rules, which provides that a pleading must:
state the material facts on which a party relies that are necessary to give the opposing party fair notice of the case to be made against that party at trial, but not the evidence by which the material facts are to be proved . . .
The requirement that a statement of claim allege material facts implies the statement of claim must be premised on at least one legal rule. It also implies that the legal rule is expressible as a conditional proposition: if certain facts and circumstances exist, then the court must, or, in the case of discretionary remedies, the court may, grant the remedy the applicant seeks. The antecedent of the conditional proposition (that is, the “if” clause of the conditional proposition) is a set of facts or circumstances, the membership or domain of which is defined by the particular legal rule or rules on which the pleader relies; and the consequent, or conclusion, of the conditional proposition (that is, the “then” clause of the conditional proposition) is the remedy the court must or may grant the applicant.
The rule that a statement of claim must state material facts, therefore, requires the pleader to do at least two things. First, the pleader must direct his or her mind to a legal rule that is expressed as a conditional proposition of the sort I have identified. The second thing the pleader must do arises from the nature of legal rules. The conditional legal rule or rules on which a statement of claim is premised identifies in general terms the types of facts and circumstances in response to whose proven existence the court will or may grant a remedy. That is, the legal rule identifies the facts and circumstances in response to which the court must or may grant a remedy without reference to particular persons, particular times and places. The task of the pleader is to identify the particular facts and circumstances; and the pleader must, to the extent he or she is able to do so on the material available, identify these particular facts and circumstances by reference to person, time, and place. In other words, to the extent he or she is able to do so on the material available, the pleader must identify specific persons, specific acts or omissions such persons engaged or did not engage in, the particular times and places in which these acts or omissions were engaged or not engaged in, and, where relevant, the circumstances that existed or did not exist at the time of the alleged acts or omissions, that fall within the legal rule on which the applicant relies.
The material facts, therefore, are the particular allegations of fact and circumstances that may reasonably be characterised as falling within the terms of the legal rule on which the pleader relies. Stated more abstractly, the material facts are particular members of the set or domain of facts and circumstances defined by the legal rule on which the pleader relies, with the particular facts and circumstances being identified by reference to person, time, and place. If a pleader alleges a set of facts that cannot be characterised as falling within any of the elements of a legal rule, or reasonably arguable legal rule, the statement of claim may be struck out to the extent facts alleged in the statement of claim cannot be so characterised.
Material facts are distinguished from a number of other things. One is the evidence by which material facts are to be proved. Paragraph (d) of r.16.02(2) of the FC Rules requires that a pleading state the “material facts”, not the evidence by which the material facts are to be proved. This repeats a very old rule of common law pleading. Speaking of an allegation made in a declaration, Lord Denman CJ said “[i]t is an elementary rule in pleading, that, when a state of facts is relied on, it is enough to allege it simply, without setting out the subordinate facts which are the means of producing it, or the evidence sustaining the allegation”.[5]
[5] Williams v Wilcox [1838] EngR 305; (1838) 8 Ad & E 314 at page 863
The second thing from which material facts are distinguished are “conclusions drawn from unstated facts”.[6] This expression, however, is not to be taken literally. The rule that a pleading must state material facts, but not the evidence by which they are to be proved, necessarily means that material facts will in most cases be conclusions of fact based on evidence and subordinate facts which the applicant intends to adduce and prove at the hearing, but which the applicant must not set out in the statement of claim. The expression “conclusions drawn from unstated facts”, rather, denotes two other classes of conclusion. One class is conclusions that allege the legal rule or an element of the legal rule on which the applicant relies applies to a given set of facts without identifying some or all of the facts on which such conclusions are said to apply. It is not permissible to allege such conclusions without alleging the facts on which such conclusion is based. This principle was stated by Weinberg J in McKellar v Container Terminal Management Services Ltd:[7]
A number of authorities support the proposition that a statement of claim must contain material facts, being the facts necessary for the purpose of formulating a complete cause of action, and that it is not sufficient simply to plead a conclusion drawn from unstated facts. . . A statement of claim which simply repeats the language of a provision of the Act, and then baldly asserts a contravention of that provision, without more, will be struck out.
There are, however, other types of allegations that are conclusions based on underlying facts that it is impermissible to allege without also identifying the facts on which they are based. This is the case with words (conclusory words) that denote a fact or facts whose precise meaning depend on a word or words that denote other facts that support the conclusion. The meaning of conclusory words, therefore, cannot be ascertained, or ascertained with sufficient certainty, without the facts that support the conclusion also being stated. Examples of conclusory words include “false”, “sham”, “purported”, “sufficient”, “reasonable”, “agree”, and “representation”. In Fair Work Ombudsman v Eastern Colour Pty Ltd Collier J held the conclusions “sham”, “purported”, and “sufficient” could not be asserted in a statement of claim without the applicant also stating the facts on which they were based.[8]
[8] [2011] FCA 803; (2011) 209 IR 263
The reason it is objectionable for a pleader to state conclusory words without also stating the facts on which such conclusions rest is not so much that conclusory words necessarily are not material facts. As Collier J noted in Eastern Colour, pleading a conclusion may in some circumstances constitute a material fact.[9] The objection is that, by pleading conclusory words without stating the underlying facts, the respondent will not be alerted, or sufficiently alerted, of the case the respondent has to meet. For that reason, such pleading is likely to “cause prejudice, embarrassment or delay in the proceeding”.[10] Here, “embarrassment”:[11]
carries the connotation of a pleading which is susceptible to various meanings, or contains inconsistent allegations or in which alternatives are confusingly intermixed or in which irrelevant allegations are made tending to increase expense.
[9] [2011] FCA 803; (2011) 209 IR 263 at [40]
[10] FC Rules, r.16.02(2)(d)
[11] Bartlett v Swan Television and Radio Broadcasters Pty Ltd [1995] FCA 1429; (1997) ATPR 41-434 at [25]
In that regard, a fundamental purpose of the rules requiring the applicant to plead material facts is to notify the respondent of the facts the applicant alleges exist which the applicant claims will or may entitle the applicant to a remedy. That enables the respondent to do two things. First, it enables the respondent to assess whether, assuming the facts alleged in the statement of claim are true, the applicant will or may be entitled to the remedy the applicant claims in the statement of claim or, perhaps, to another remedy. Secondly, the respondent will be in a position to determine which of the allegations he or she accepts are true, and which he or she will contest. These purposes of the rules were recognised by Bramwell LJ in Philipps v Philipps:[12]
The object of the rules is threefold. It is that the plaintiff may state what his case is for the information of the defendant, and that the plaintiff may be tied down to it and not spring a new case on the defendant; secondly, that the defendant may be at liberty to say, that the statement is not sufficient in point of law, and to raise the point on demurrer; and thirdly, that the defendant, instead of being driven to deny everything by an ambiguous and uncertain statement involving conclusions of law as well as actual facts, and so going down to try an expensive issue, may be at liberty to single out any one statement, and to answer it.
[12] (1878) 4 QBD 127 at page 131
Two of these purposes were more recently identified by Lindgren J in Australian Automotive Repairers’ Association (Political Action Committee) Inc v NRMA Insurance Ltd:[13]
The requirement that material facts be stated has two purposes: the natural justice purpose of adequately informing the other party of the nature of the case alleged against that party; and the purpose of providing a basis for determining whether that alleged case, so exposed, constitutes a cause of action cognisable at law.
[13] [2002] FCA 1568 at [15]
Thus, the guiding principle for determining whether a conclusion that does not state the supporting facts is objectionable will depend on whether, in the circumstances of the particular case, the conclusion sufficiently notifies the respondent of the allegation that is made, and the grounds on which it is made, such as will reasonably enable the respondent to determine whether he or she should admit the allegation and, if not, to investigate and gather evidence in relation to that allegation for the purpose of the trial. That is the effect of the following passage from the judgment of Sackville J (with whom Spender and Hill JJ agreed) in Phillip Morris (Australia) Ltd v Nixon:[14]
[I]t is a well established rule that the permitted level of generality of a pleading must depend on the general subject matter and on what is required to convey to the opposite party the case that is to be met… For example, in some circumstances, it may be permissible to plead a conclusion rather than the material facts underlying the conclusion…
Whether proceedings at a relatively high level of generality are permissible will depend on the circumstances of the particular case and the stage it has reached.
[14] [2000] FCA 229; (2000) 170 ALR 487 at [132]; [136]
There is another matter I should note, which is of some relevance to the principal ground on which the respondents object to the statement of claim. The rules of pleading do not prohibit the pleader from alleging conclusions. On the contrary, it often adds clarity to a pleading if the statement of claim states the legal or other conclusions the pleader alleges is supported by the material facts that are alleged in the statement of claim. This notifies the respondent of the legal or factual relevance the applicant attaches to the facts alleged in the statement of claim. What the rules prohibit is alleging particular conclusions without disclosing the material facts on which such conclusions are based.
The FC Rules also distinguish material facts from particulars of those facts.[15] This by itself suggests that a material fact may be stated with a degree of generality, provided particulars that are within the knowledge of the applicant are given that limit the generality of the allegation.
[15] FC Rules, r.16.41
It will be seen that the notions of “material facts”, “conclusory facts”, and “evidence by which the material facts are to be proved” do not denote classes of alleged facts that have clear boundaries. The distinctions are capable of being easily drawn in the case of causes of action that involve a limited number of facts, and whose elements involve relatively simple facts. A claim for the repayment of debt, or a claim for the payment for services rendered, or a claim for damages for breach of contract are examples. The distinctions are more difficult to draw where the elements of the cause of action do not consist of simple facts. That is the case with s.340 and s.343 of the FW Act.
As I discuss in the following section of these reasons, s.340 and s.343 of the FW Act include as their elements words of some generality to which reasonably precise meaning in any case can only be given by the statement of more specific facts. These elements include the organisation of action, the taking of action, intention, coercion, and industrial action. In these circumstances, a statement of claim will fulfill its functions if it does two things. First, it must allege facts and circumstances that are sufficiently certain in terms of person, place, and time to enable the respondent to determine whether he or she admits or denies the alleged facts. Second, the statement of claim must signal to the respondent the element or elements of s.340 and s.343 of the FW Act to which the applicant claims each of the alleged facts relate. This second requirement flows not only from the notice function of a statement of claim, but also from r.16.02(1)(e) of the FC Rules which requires that a pleading “state the provisions of any statute relied on”.
Having identified some of the relevant principles that I must apply, the next matter I must consider are the elements of the provisions of the FW Act the Director alleges the respondents contravened.
Elements of contravention of s.343 of the FW Act
As I have already mentioned, the statement of claim alleges the respondents contravened s.340 and s.343 of the FW Act. It would be convenient if I begin with s.343 of the FW Act, which provides as follows:
(1)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)exercise or not exercise, or propose to exercise or not exercise, a workplace right; or
(b)exercise, or propose to exercise, a workplace right in a particular way.
(2)Subsection (1) does not apply to protected industrial action.
The expression “workplace right” is defined in s.341(1) of the FW Act as follows:
A person has a workplace right if the person:
(a) is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body; or
(b) is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument; or
(c) is able to make a complaint or inquiry:
(i) to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or
(ii) if the person is an employee—in relation to his or her employment.
The expression “protected industrial action” is defined in s.408 of the FW Act to mean, among other things, an “employee claim action for the agreement”. That is a reference to the matters set out in s.409 of the FW Act. That section, in the circumstances it identifies, authorises industrial action by employees that “is organised or engaged in for the purpose of supporting or advancing claims in relation to [a proposed enterprise] agreement that are only about, or are reasonably believed to only be about, permitted matters…”.
Section 343 of the FW Act must be read with s.361(1), which provides:
If:
(a)in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and
(b)taking that action for that reason or with that intent would constitute a contravention of this Part;
it is presumed that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.
And subsection 361(1) must, in turn, be read with s.360 of the FW Act:
For the purposes of this Part, a person takes action for a particular reason if the reasons for the action include that reason.
The expression “intent to coerce” has been interpreted to consist of two elements:[16]
First, it needs to be shown that it was intended that pressure be exerted which, in a practical sense, will negate choice. Secondly, the exertion of the pressure must involve conduct that is unlawful, illegitimate or unconscionable.
[16] Seven Network (Operations) Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia[2001] FCA 456; (2001) 109 FCR 378 at [41] (Merkel J) quoted with approval in State of Victoria v Construction, Forestry, Mining and Energy Union [2013] FCAFC 160; (2013) 218 FCR 172 at [71]
Although a contravention requires proof that the alleged contravener intended to exert pressure on another, it is not necessary that the contravener have knowledge that his or her conduct is unlawful, illegitimate, or unconscionable. All that need be shown is that the action the person has taken or has threatened to take is conduct the law characterises as unlawful, illegitimate, or unconscionable.[17]
[17] Esso Australia Pty Ltd v Australian Workers’ Union [2016] FCAFC 72; (2016) 258 IR 396 at [176] (Buchanan J, with whom Siopis J agreed)
A person, therefore, will contravene s.343 of the FW Act if the following matters occur:
a)the person has organised or taken, or threatened to organise or take, action against another person (relevant conduct); and
b)the person has engaged in the conduct with intent (relevant intent) to coerce the other person, or a third person:
i)to exercise or not exercise; or propose to exercise or propose not to exercise, a workplace right; or
ii)to exercise; or propose to exercise a workplace right in a particular way.
The person who is alleged to have taken, and is found to have taken, relevant conduct with the relevant intent will, because of s.361 of the FW Act, be taken to have engaged in the relevant conduct with the relevant intent unless the person proves otherwise.
Elements of a contravention of s.340 of the FW Act
Subsection 340(1) of the FW Act provides:
A person must not take adverse action against another person:
(a) because the other person:
(i)has a workplace right; or
(ii)has, or has not, exercised a workplace right; or
(iii)proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; or
(b)to prevent the exercise of a workplace right by the other person.
Three matters must be established before a person will be held to have contravened s.340 of the FW Act. First, the person has taken “adverse action against another person”. That expression is defined in a table contained in s.342(1) of the FW Act which identifies in one column the persons by whom and against whom adverse action must be taken, and, in another column, the conduct that, if taken by and against such persons, constitutes adverse action. For the purposes of these proceedings, the relevant person who must take the adverse action is “an industrial association, or an officer or member of an industrial association”; and such person or persons take “adverse action” if:
the industrial association, or the officer or member of the industrial association:
(a)organises or takes industrial action against the person; or
(b)takes action that has the effect, directly or indirectly, of prejudicing the person in the person’s employment or prospective employment; or
(c)if the person is an independent contractor—takes action that has the effect, directly or indirectly, of prejudicing the independent contractor in relation to a contract for services; or
(d)if the person is a member of the association—imposes a penalty, forfeiture or disability of any kind on the member (other than in relation to money legally owed to the association by the member).
The second matter that must be established is that the person against whom the industrial association, or the officer or member of the industrial association has taken adverse action has, among other things, a “workplace right”. The third matter is that the industrial association, or the officer or member of the industrial association took the adverse action for a particular reason, or for reasons that included a particular reason.[18] That requirement arises from the presence of the word “because”:[19] s.340(1) of the FW Act prohibits a person from taking adverse action “because” a person has a “workplace right”, or because the person has exercised, or has not exercised, or proposes to exercise, or proposes not to exercise, such a right. Further, where the particular reason is one of a number of reasons for which the adverse action is taken, the particular reason must be “a “substantial and operative factor” as to constitute a “reason”, potentially amongst many reasons””,[20] or must be an “operative or immediate reason for the action”.[21] An important aspect of determining whether in any given case a person has taken adverse action “because” of one or more of the matters specified in s.340(1) of the FW Act is s.361(1) of that Act.
[18] FW Act, s.360
[19] Director of The Fair Work Building Industry Inspectorate v Baulderstone Pty Ltd & Ors [2014] FCCA 721 at [20] relying on Barclay v Board of Bendigo Regional Institute of Technical and Further Education [2010] FCA 284; (2010) 193 IR 251at [26] (Tracey J)
[20] Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32; (2012) 86 ALJR 1044 at [127] (Gummow and Hayne JJ)
The statement of claim
It would be convenient first to set out in chronological order the basic facts alleged in the statement of claim, and on which the Director relies for claiming the respondents have contravened s.340 and s.343 of the FW Act.
CFMEU and DMG in dispute over proposed EBA
At all relevant times, DMG was a provider of concrete pumping services for commercial and high rise developments.[22] In about early 2014 DMG decided to initiate bargaining with its employees who were covered by the De Martin & Gasparini Enterprise Agreement 2011-2014 (2011 Enterprise Agreement) to replace that agreement with a new enterprise agreement.[23] That process was necessary because the 2011 Enterprise Agreement had a nominal expiry date of 30 September 2014.[24] The CFMEU was appointed bargaining representative for all, or substantially all, of the employees covered by the 2011 Enterprise Agreement (DMG Employees) for the purpose of bargaining with DMG for a new enterprise agreement.[25] The CFMEU and DMG, however, were unable to agree on a new enterprise agreement.[26]
[22] Statement of claim, [16(a)]
[23] Statement of claim, [33]
[24] Statement of claim, [32]
[25] Statement of claim, [35]
[26] Statement of claim, [36]-[39]
On 21 November 2014 the Fair Work Commission granted the CFMEU a protected action ballot order under s.443 of the FW Act.[27] On 19 December 2014 the majority of the DMG Employees voted to take industrial action, including indefinite strikes, against DMG in support of a proposed enterprise agreement.[28] On 12 January 2015 the CFMEU informed DMG the DMG Employees who would be covered by a proposed enterprise agreement would be taking industrial action in the form of an indefinite strike commencing on 16 January 2015.[29]
[27] Statement of claim, [40]
[28] Statement of claim, [41]
[29] Statement of claim, [42]
At the time the DMG Employees voted to take industrial action, DMG was party to a contract (Barangaroo Contract) with Lend Lease Project Management & Construction (Australia) Pty Limited (Lend Lease) under which DMG agreed to provide concrete pumping services at the Barangaroo site at Hickson Road, Sydney (Barangaroo Site).[30] DMG was also a party to a contract (Harold Park Contract) with Mirvac Constructions Pty Limited (Mirvac) under which DMG agreed to provide concrete pumping services at the development site at Harold Park, Glebe (Harold Park Site).[31]
[30] Statement of claim, [18]
[31] Statement of claim, [21]
13 February 2015 conduct at Barangaroo Site
On 13 February 2015 DMG was due to carry out work under the Barangaroo Contract at the Barangaroo Site (13 February Work).[32] The DMG Employees who would have performed the 13 February Work, however, were engaged in protected industrial action in the form of an indefinite strike.[33] DMG, therefore, subcontracted Preston Concreters Pty Limited (Preston), Zenith Civil (Zenith), and Civic Concrete Group Pty Ltd (Civic) to carry out all or part of the 13 February Work.[34] The performance by these subcontractors of that work required their trucks and their employees to enter the Barangaroo Site.[35]
[32] Statement of claim, [48]
[33] Statement of claim, [49]
[34] Statement of claim, [50]
[35] Statement of claim, [51]
At approximately 7.30 am on 13 February 2015, the tenth respondent, Mr Manna, telephoned Mr Nicola Titone of Preston to ask whether Preston had any employees engaged to carry out work at the Barangaroo Site that morning.[36] In the meantime, from around 6.45 am that morning, and at times during the day of 13 February 2015, the fifth respondent, Mr M Greenfield, the sixth respondent, Mr D Greenfield, and the seventh respondent, Mr Collier, arranged, or assisted in arranging, a group of DMG Employees and themselves to attend the Barangaroo Site, and position themselves in the vicinity of one or more entry points to the Barangaroo Site (Stop Work Demonstration).[37]
[36] Statement of claim, [51A]
[37] Statement of claim, [52]
During the Stop Work Demonstration, and at least at around 10.22 am, the third respondent, Mr Parker, and the fourth respondent, Ms Mallia, arrived by bus with 40 to 50 DMG Employees, joined the group that had already assembled, and addressed the group, telling them to organise the stoppage of work at the Barangaroo Site. Sometime during the Stop Work Demonstration, the eighth respondent, Mr Sloane, and a CFMEU officer, Mr Ben Garvey, joined the Stop Work Demonstration.[38] At approximately 1.00 pm and 3.00 pm on 13 February 2015 Mr Manna telephoned Mr Serge Ciaschetti of Commercial Concrete Pty Ltd (Commercial) to ask whether Commercial had employees engaged to carry out work for DMG on 14 February 2015.[39]
[38] Statement of claim, [55]
[39] Statement of claim, [55A]
14 February 2015 conduct at Barangaroo Site
On 14 February 2015 DMG was again due to carry out work at the Barangaroo Site pursuant to the Barangaroo Contract (14 February Work).[40] The DMG Employees who would have performed the work on that day, however, were engaged in protected industrial action in the form of an indefinite strike.[41] DMG, therefore, subcontracted Zanet Concrete Pumping Pty Ltd (Zanet Pumping), Commercial, Preston, and Zenith, to carry out part or all of the 14 February Work.[42] The performance by these subcontractors of that work required their trucks and their employees to enter the Barangaroo Site.[43]
[40] Statement of claim, [72]
[41] Statement of claim, [73]
[42] Statement of claim, [74]
[43] Statement of claim, [75]
From around 5.45 am on 14 February 2015, the ninth respondent, Mr Kera, the fourteenth respondent, Mr Wyer, Ms Mallia, Mr Manna, Mr D Greenfield, and Mr Parker, arranged or assisted in arranging a group of DMG Employees and themselves to attend the Barangaroo Site and position themselves at the Hickson Road entrance so as to prevent or obstruct or effectively block trucks and the employees of the relevant subcontractors from entering the Barangaroo site.[44] During 14 February 2015, Mr Parker, Mr Manna, Mr Kera, Mr D Greenfield, Ms Mallia, and Mr Wyer engaged in further action to prevent or obstruct the 14 February Work being performed.[45] Such action included the following:[46]
a)Mr Kera told the employees from Commercial they would be labelled scab labour;
b)Mr Parker, Mr Manna, Mr Kera, Mr D Greenfield, Ms Mallia, and Mr Wyer, entered the Barangaroo Site for the purpose of interfering with the subcontractor employees inductions and their preparations for carrying out the scheduled works;
c)Mr Manna told Zanet Pumping and Commercial not to perform work on DMG’s work sites;
d)Mr Wyer told Mr Louie Mazzarolo of DMG that the subcontractors should not perform work while DMG workers are on strike;
e)at approximately 7.30am Mr Parker called Mr Titone of Preston and told him Preston was forcing its employees to work against their will, that he had no problem if Preston allocated its employees to work on non-DMG sites, and threatened Mr Titone by saying Preston did not want to get on the wrong foot with Mr Parker;
f)Mr Kera and Mr D Greenfield told Mr Mazzarolo that Zanet Pumping would not be permitted to perform work;
g)Ms Mallia refused Mr Mazzarolo’s request that Ms Mallia instruct officers the CFMEU to cease calling the subcontractors and making threats to prevent work being carried out; and
h)at approximately 7.15 am Mr Manna telephoned Mr Ciaschetti of Commercial and told him he should ensure Commercial employees did not carry out work for DMG, that it was not illegal for DMG employees to refuse to work, and threatened Mr Ciaschetti that he would take action against Commercial if it defied his instructions.
[44] Statement of claim, [76]
[45] Statement of claim, [77]
[46] Statement of claim, [77]
As a result of the conduct alleged to have occurred on 14 February 2015, the work DMG was contracted to perform on the Barangaroo Site on 14 February 2015 was prevented or obstructed which, in turn, resulted in DMG being prejudiced in relation to the contract it had with Lend Lease because DMG was unable to complete the work.[47]
[47] Statement of claim, [78]-[80]
16 February 2015 conduct at Barangaroo Site
On 16 February 2015 DMG was again due to carry out work at the Barangaroo Site pursuant to the Barangaroo Contract (16 February Work).[48] The DMG Employees who would have performed the work on that day, however, were engaged in protected industrial action in the form of an indefinite strike.[49] DMG, therefore, subcontracted Zanet Pumping, Commercial, Preston, Zenith, and ZWF Pty Limited trading a ZC Group (ZC Group) to carry out part or all of the 16 February Work.[50] The performance by these subcontractors of that work required their trucks and their employees to enter the Barangaroo Site.[51]
[48] Statement of claim, [103]
[49] Statement of claim, [104]
[50] Statement of claim, [105]
[51] Statement of claim, [106]
From around 5.00 am on 16 February 2015, and at times during the day, the thirteenth respondent, Mr O’Grady, Mr Parker, Mr Kera, Mr Collier, Mr D Greenfield, Mr M Greenfield, Mr Manna, Mr Wyer, and Ms Mallia, arranged or assisted in arranging a group of DMG Employees and themselves to attend the Barangaroo Site and position themselves at the Hickson Road entrance so as to prevent or obstruct or effectively block trucks and the employees of the relevant subcontractors from entering the Barangaroo Site.[52] Further, during 16 February 2015, Mr Parker, Mr Kera, Mr Collier, Mr D Greenfield, and Mr M Greenfield engaged in further action to prevent or obstruct the 16 February Work being performed:[53]
a)Mr D Greenfield told some of the subcontractors not to be scabs and not to go in and do the work, and refused to let into the Barangaroo Site a Zanet Pumping concrete pump;
b)Mr Parker told Mr Mazzarolo that work would not be performed by DMG while the DMG Employees were on strike, and that the group blockading the Barangaroo Site would not move out of the way;
c)Mr Collier threatened and intimidated a truck driver;
d)Mr M Greenfield threatened Mr Young, a solicitor who attended the Barangaroo Site to assist DMG;
e)Mr Parker refused to leave the blockade at the request of the Police, and threatened an escalation if the Police attempted to remove the group;
f)persons within the group shouted offensive words;
g)Mr Kera and Mr D Greenfield entered the Barangaroo Site and interfered with employees of the relevant subcontractors by making harassing demands for paperwork, and raising false grounds for stopping work; and
h)Mr Collier incited the group to block access of a truck in defiance of a request by the Police to cease the blockade.
[52] Statement of claim, [107]
[53] Statement of claim, [108]
As a result of the events that occurred on 16 February 2015, the work DMG was contracted to perform on the Barangaroo Site on 16 February 2015 was prevented or was obstructed from being performed in whole or in part;[54] employees of the subcontractors were intimidated, and refused to work or continue to work, and left the Barangaroo Site,[55] and, as a consequence, DMG was prejudiced in relation to the Barangaroo Contract because it was unable to complete the 16 February Work.[56]
[54] Statement of claim, [109]
[55] Statement of claim, [110]
[56] Statement of claim, [111]
16 February 2015 conduct at Harold Park Site
On 16 February 2015, DMG was due to carry out work at the Harold Park Site (16 February Harold Park Work).[57] The DMG Employees who would have performed the work on that day, however, were engaged in protected industrial action in the form of an indefinite strike.[58] DMG, therefore, subcontracted Civic Concrete Group Pty Ltd (Civic) and LongReach Pumping (LongReach) to carry out part or all of the 16 February Harold Park Work.[59] The performance by these subcontractors of that work required their trucks and their employees to enter the Harold Park Site.[60]
[57] Statement of claim, [135]
[58] Statement of claim, [136]
[59] Statement of claim, [137]
[60] Statement of claim, [138]
From about 6.30 am on 16 February 2015, Mr Sloane and Mr Parker attended the Harold Park Site and arranged for approximately five DMG Employees who were on strike to attend the Harold Park Site.[61] From about 6.30 am, and then during the day, Mr Sloane and Mr Parker engaged in action to prevent or obstruct the 16 February Harold Park Work being performed:[62]
a)Mr Sloane raised a purported safety issue which caused the employees of the subcontractors to cease work;
b)Mr Parker and the DMG employees spoke to the employees of the subcontractors and dissuaded them from performing work;
c)Mr Parker abused Mr Daher of DMG when he approached the employees of the subcontractors;
d)Mr Parker parked a car so as to prevent a concrete pump from being operated, Mr Parker refused to move the car when requested to do so; and then Mr Parker moved the car to prevent the concrete pump from moving around the car, thus again preventing the concrete pump from being operated; and
e)Mr Parker falsely accused DMG of falsifying, or arranging the falsification of concrete pump documentation.
[61] Statement of claim, [139]
[62] Statement of claim, [140]
As a result of the actions taken at the Harold Park Site on 16 February 2015, the 16 February Harold Park Work was prevented or was obstructed from being performed in whole or in part;[63] and DMG was prejudiced in relation to the Harold Park Contract because it was unable to complete the 16 February Harold Park Work.[64]
[63] Statement of claim, [141]
[64] Statement of claim, [142]
17 February 2015 conduct at Barangaroo Site
On 17 February 2015 DMG was again due to carry out work at the Barangaroo Site pursuant to the Barangaroo Contract (17 February Work).[65] The DMG Employees who would have performed the work on that day, however, were engaged in protected industrial action in the form of an indefinite strike.[66] DMG, therefore, subcontracted Zanet Pumping, Commercial, and Solid Concrete Pumping (Solid Concrete) to carry out part or all of the 17 February Work.[67] The performance by these subcontractors of that work required their trucks and their employees to enter the Barangaroo Site.[68]
[65] Statement of claim, [156]
[66] Statement of claim, [157]
[67] Statement of claim, [158]
[68] Statement of claim, [159]
From about 5.15 am on 17 February 2015, and at times during that day, Mr Kera, Mr O’Grady, Mr M Greenfield, Mr Parker, Mr Manna, and Ms Mallia engaged in action to prevent or obstruct the 17 February Work:[69]
a)Mr Kera, Mr O’Grady, Mr M Greenfield, Mr Parker, Mr Manna, and Ms Mallia arranged or assisted in the arranging of a group persons to congregate across the entrance of the Barangaroo Site access gates between 6.00 am and 7.00 am, thus blocking access to the Barangaroo Site by the subcontractors DMG had engaged to perform the 17 February Work;
b)Mr M Greenfield intimidated the employees of the subcontractors by telling them they were scabs, to call in sick to avoid illegally stopping work, and threatening them with future prejudice if they worked;
c)Mr M Greenfield told Mr Mazzarolo to speak to Mr Parker to sign the CFMEU proposed enterprise agreement to stop the action that was taking place;
d)Mr Parker, Mr Manna, and Ms Mallia told Mr Mazzarolo that Boral could not meet with DMG Employees, that unless DMG agreed to the “Union EBA”, the action would continue indefinitely, and they threatened to put DMG out of business;
e)Mr M Greenfield, Mr Kera, and Mr Manna interfered with the operation of the Zanet Pumping concrete pump by raising false safety issues, resulting in the pump having to be inspected, and removed from the Harold Park Site;
f)Mr Kera led a group of persons to gate H4 in blocking access to a DMG truck that was attempting to gain access to the Barangaroo Site;
g)Mr M Greenfield told a Solid Concrete truck driver not to enter the Barangaroo Site, which resulted in the truck driver leaving; and
h)Mr M Greenfield, Mr Kera, and Mr Manna raised several false safety issues in an attempt to prevent concrete placing.
[69] Statement of claim, [160]
As a consequence of these actions, the 17 February Work was prevented or obstructed from being performed in whole or in part,[70] and DMG was prejudiced in relation to the Barangaroo Contract because it was unable to complete the 17 February Work in whole or in part.[71]
[70] Statement of claim, [161]
[71] Statement of claim, [162]
17 February 2015 conduct at Harold Park Site
On 17 February 2015 DMG was due to carry out work at the Harold Park Site (17 February Harold Park Work).[72] The DMG Employees who would have performed the work on that day, however, were engaged in protected industrial action in the form of an indefinite strike.[73] DMG, therefore, subcontracted Civic Contracting and LongReach to carry out part or all of the 17 February Harold Park Work.[74] The performance by these subcontractors of that work required their trucks and their employees to enter the Harold Park Site.[75]
[72] Statement of claim, [177]
[73] Statement of claim, [178]
[74] Statement of claim, [179]
[75] Statement of claim, [180]
From about 8.20 am on 17 February 2015 Mr Sloane attended the Harold Park Site and arranged for striking DMG Employees, who were not allocated to work at the Harold Park site, to attend and enter that site.[76] From about 8.20 am, and then during the day, Mr Sloane engaged in action to prevent or obstruct the 17 February Harold Park work by raising sham safety issues relating to the LongReach concrete pump, and speaking to employees of the subcontractors dissuading them from performing work.[77] As a consequence of Mr Sloane’s actions, the 17 February Harold Park work was prevented or obstructed from being performed in whole or in part,[78] and DMG was prejudiced in relation to the Harold Park Contract because it was unable to complete the 17 February Harold Park Work in whole or in part.[79]
[76] Statement of claim, [181]
[77] Statement of claim, [182]
[78] Statement of claim, [183]
[79] Statement of claim, [184]
18 February 2015 – DMG meets with DMG Employees, and conduct ceases
On 18 February 2015 DMG arranged to meet with DMG employees to discuss the proposed new enterprise agreement. At about the same time as the meeting, “the individual and cumulative action of the type” alleged in the statement of claim (which I have set out above) “ceased and was not further engaged in”.[80] On 30 March 2015 a new enterprise agreement was made to replace the 2011 Enterprise Agreement.
[80] Statement of claim, [46(b)]
Alleged contraventions
Although the statement of claim alleges facts that occurred at the Barangaroo Site on 13 February 2015, it does not allege that any of the respondents who were involved in the events of 13 February 2015 contravened any provision of the FW Act. The facts appear to have been initially alleged because the Director alleged that some persons who are no longer respondents had been involved in those events, but the Director subsequently withdrew those allegations.[81]
[81] See Statement of claim, as originally filed, at [56]-[71]
In relation to the other five incidents, the statement of claim makes four classes of allegations of contravention in substantially identical terms. The first class of contraventions concern s.343 of the FW Act and are as follows:
a)the facts alleged against the relevant natural person respondents constituted the organising or taking of action by those respondents that was not protected industrial action against DMG, subcontractors and the employees of subcontractors with the intention of:
i)preventing or obstructing the work DMG was due to perform from being performed by subcontractors; and
ii)coercing DMG to exercise its workplace right in a particular way, namely, to agree to an enterprise agreement on terms proposed by or agreeable only to the CFMEU;[82]
b)the Director notes he relies on s.361 of the FW Act, and identifies conduct pleaded earlier in the statement of claim which is alleged to constitute a contravention of s.343 of the FW Act;[83]
c)because of (a) and (b), each of the respondents who had been involved in the events had engaged in conduct in contravention of s.343 of the FW Act;[84]
d)further, each of the relevant natural person respondents engaged in the conduct within the scope of their actual or apparent authority and as an officer, member, and agent of the CFMEU and CFMEU NSW acting in that capacity, and such conduct, therefore, is taken to have been engaged in by the CFMEU and CFMEU NSW;[85] and
e)because of (d), and the operation of s.793(1), s.793(2), s.363(1)(b), s.363(1)(d), and s.361 of the FW Act, the CFMEU and CFMEU NSW contravened s.343 of the FW Act.[86]
[82] Statement of claim, [80A] (14 February 2015 conduct at Barangaroo Site); [111A] (16 February 2015 conduct at Barangaroo Site); [142A] (16 February 2015 conduct at Harold Park Site); [162A] (17 February 2015 conduct at Barangaroo Site); [184A] (17 February 2015 conduct at Harold Park Site)
[83] Statement of claim, [80B], [80C], [80D] (14 February 2015 conduct at Barangaroo Site); [111B] (16 February 2015 conduct at Barangaroo Site); [142B] (16 February 2015 conduct at Harold Park Site); [162B] (17 February 2015 conduct at Barangaroo Site); [184B] (17 February 2015 conduct at Harold Park Site)
[84] Statement of claim, [99] (14 February 2015 conduct at Barangaroo Site); [111C], [111D] (16 February 2015 conduct at Barangaroo Site); [142C] (16 February 2015 conduct at Harold Park Site); [162C] (17 February 2015 conduct at Barangaroo Site); [184C] (17 February 2015 conduct at Harold Park Site)
[85] Statement of claim, [99A] (14 February 2015 conduct at Barangaroo Site); [130A] (16 February 2015 conduct at Barangaroo Site); [151C] (16 February 2015 conduct at Harold Park Site); [172A] (17 February 2015 conduct at Barangaroo Site); [194A] (17 February 2015 conduct at Harold Park Site)
[86] Statement of claim, [99B] (14 February 2015 conduct at Barangaroo Site); [130B] (16 February 2015 conduct at Barangaroo Site); [151D] (16 February 2015 conduct at Harold Park Site); [172B] (17 February 2015 conduct at Barangaroo Site); [194A], [194B] (17 February 2015 conduct at Harold Park Site)
The second class of alleged contraventions concerns s.362 of the FW Act. These allegations are made against Mr Parker, Ms Mallia, Mr O’Grady, and Mr Collier. The statement of claim alleges these persons “advised, encouraged, incited or coerced DMG Employees to take action” as part of the conduct that occurred on 16 February 2015 at the Barangaroo Site,[87] as a result of which they contravened s.362 of the FW Act.[88]
[87] Statement of claim, [209A]
[88] Statement of claim, [209B]
The third class of contraventions concerns s.340 of the FW Act, and are as follows:
a)by the time of each of the actions, DMG had rejected or not agreed to a proposed enterprise agreement on terms that were proposed by or agreeable to the CFMEU or CFMEU NSW, and, in so doing, DMG exercised or proposed to exercise a workplace right within the meaning of s.341(1)(b) and s.341(2)(e) of the FW Act;[89]
b)the conduct of each of the natural respondents alleged in each of the actions, constituted the taking of adverse action against DMG and the subcontractors it had engaged to perform the work in that the conduct had the effect of directly or indirectly prejudicing DMG and the subcontractors in relation to a contract of services within the meaning of s.342(1) Item 7(c) of the FW Act, and also constituted the organising or taking of industrial action against DMG within the meaning of s.19(1)(b)[90] and s.342(1) Item 7(a) of the FW Act;[91]
c)the relevant natural person respondents took the adverse action referred to in (b) because of DMG’s exercise, or proposed exercise of a workplace right, or to prevent DMG from exercising the workplace right referred to in (a);[92]
d)because of the matters referred to in (a), (b), and (c), and the Director’s relying on s.361 of the FW Act, the relevant natural person respondents contravened s.340 of the FW Act;[93]
e)each of the relevant natural person respondents engaged in the conduct within the scope of their actual or apparent authority and as an officer, member, and agent of the CFMEU and CFMEU NSW acting in that capacity, and such conduct, therefore, is taken to have been engaged in by the CFMEU and CFMEU NSW;[94]
f)because of (e), and the operation of s.793(1), s.793(2), s.363(1)(b), 363(1)(d), and s.361 of the FW Act, the CFMEU and CFMEU NSW also contravened s.340 of the FW Act.[95]
[89] Statement of claim, [93] (14 February 2015 conduct at Barangaroo Site); [124] (16 February 2015 conduct at Barangaroo Site); [149] (16 February 2015 conduct at Harold Park Site); [169] (17 February 2015 conduct at Barangaroo Site); [191] (17 February 2015 conduct at Harold Park Site)
[90] The statement of claim incorrectly refers to 19(b) of the FW Act, instead of 19(1)(b) of the FW Act.
[91] Statement of claim, [94], [97] (14 February 2015 conduct at Barangaroo Site); [125], [128] (16 February 2015 conduct at Barangaroo Site); [150] (16 February 2015 conduct at Harold Park Site); [170] (17 February 2015 conduct at Barangaroo Site); [176] (17 February 2015 conduct at Harold Park Site)
[92] Statement of claim, [95] (14 February 2015 conduct at Barangaroo Site); [126] (16 February 2015 conduct at Barangaroo Site); [151] (16 February 2015 conduct at Harold Park Site); [171] (17 February 2015 conduct at Barangaroo Site); [193] (17 February 2015 conduct at Harold Park Site)
[93] Statement of claim, [95A], [96], [98], [98A], [99] (14 February 2015 conduct at Barangaroo Site); [126A], [127], [129], [130] (16 February 2015 conduct at Barangaroo Site); [151], [151A], [151B] (16 February 2015 conduct at Harold Park Site); [171], [171A], [172] (17 February 2015 conduct at Barangaroo Site); [193A], [194] (17 February 2015 conduct at Harold Park Site)
[94] Statement of Claim, [99A] (14 February 2015 conduct at Barangaroo Site); [130A] (16 February 2015 conduct at Barangaroo Site); [151C] (16 February 2015 conduct at Harold Park Site); [172A] (17 February 2015 conduct at Barangaroo Site); [194A] (17 February 2015 conduct at Harold Park Site)
[95] Statement of Claim, [99B] (14 February 2015 conduct at Barangaroo Site); [130B] (16 February 2015 conduct at Barangaroo Site); [151D] (16 February 2015 conduct at Harold Park Site); [172B] (17 February 2015 conduct at Barangaroo Site); [194B] (17 February 2015 conduct at Harold Park Site)
The fourth class of allegations are to the effect that the natural person respondents who participated in the actions were each involved, within the meaning of s.550 of the FW Act, in the other’s contraventions of s.340 and s.343 of the FW Act.[96]
[96] Statement of Claim, [100] (14 February 2015 conduct at Barangaroo Site); [131] (16 February 2015 conduct at Barangaroo Site); [152] (16 February 2015 conduct at Harold Park Site); [173] (17 February 2015 conduct at Barangaroo Site)
The paragraphs sought to be struck out
The respondents have grouped into separate classes the paragraphs of the statement of claim they submit suffer from the same or substantially the same vice.
Paragraphs 18, 19, 21, 22, 25, and 26
These paragraphs refer to the Barangaroo Contract and the Harold Park Contract. The respondents claim a copy of these contracts have not been provided to them, and the respondents should not be required to plead to these paragraphs until a copy of the contracts have been provided to them. The respondents do not, however, submit that the paragraphs do not comply with any rule of pleading. The paragraphs cannot, therefore, be struck out for that reason.
The real complaint appears to be the Director has not provided the respondents with a copy of the contracts. The evidence reveals that by letter dated 23 March 2016 the respondents’ lawyer requested the Director’s lawyer provide a copy of the contracts.[97] By letter dated 18 April 2016,[98] the Director’s lawyer said the contracts contained commercially sensitive information, but the Director was prepared to provide a copy of the contracts with the monetary amounts redacted, if the respondents agreed that inspection of the contracts be restricted to the respondents’ lawyers. By letter dated 19 April 2016 the respondents’ lawyers informed the Director’s lawyer that instructions were being sought about the Director’s proposal.[99] It appears, however, that the respondents’ lawyer has not informed the Director’s lawyer of the respondents’ instructions on the Director’s proposal.
[97] Affidavit of T J McCauley, 22.02.2016; exhibit “TJM1”
[98] Affidavit of T J McCauley, 22.02.2016; exhibit “TJM4”
[99] Affidavit of T J McCauley, 22.02.2016; exhibit “TJM5”
Given the respondents have not responded to the Director’s proposal in relation to the Barangaroo Contract and the Harold Park Contract, and they have not submitted to me that the Director’s proposal is unacceptable or unreasonable, I do not propose to make any order which has the effect of relieving the respondents from pleading to paragraphs 18, 19, 21, 22, 25, and 26 of the statement of claim.
Paragraphs 20, 23, and 27
These paragraphs, each of which is prefaced with the words “[i]n the premises”, conclude, respectively, that DMG was an “independent contractor” in relation to the Barangaroo Contract and the Harold Park Contract, and that each of the entities described in paragraph 25 of the statement of claim was an “independent contractor”. The respondents submit the paragraphs do not plead the material facts to sustain the allegation that DMG and the subcontractors were independent contractors.
I do not accept that submission. It is true the paragraphs state conclusions. But as the words “in the premises”, which preface each conclusion, suggest, each conclusion is based on matters alleged in other paragraphs of the statement of claim. And that suggestion is borne out by the statement of claim. The conclusion stated in paragraph 20 of the statement of claim is premised on the matters alleged and particularised in paragraphs 18 and 19 of the statement of claim; the conclusion in paragraph 23 is premised on the matters alleged and particularised in paragraphs 21 and 22, and the conclusion in paragraph 27 of the statement of claim is premised on the matters alleged and particularised in paragraphs 24, 25, and 26. The respondents do not submit the paragraphs on which paragraphs 20, 23, and 27 are premised do not plead material facts; and they do not submit the matters stated in those paragraphs do not support the conclusions pleaded in paragraphs 20, 23, and 27.
In my opinion, paragraphs 20, 23, and 27 of the statement of claim are conclusions that identify the matters on which they are based; and the matters on which they are based are material facts. These paragraphs, therefore, are not objectionable.
Paragraph 28
Paragraph 28 is a short paragraph, which pleads that, at relevant times between 10 and 18 February 2015, each of the “Subcontractors”, being the nine companies or business entities identified in paragraph 25 of the statement of claim, employed employees to attend and perform work at one or both of the Barangaroo Site or Harold Park Site. That allegation serves as a premise to the allegation that each of the subcontractors was a “building industry participant” as that expression is defined in s.4(1) of the FW Act.
The respondents make two submissions. First, they submit the Director does not plead the material facts to sustain the allegation that one or more of the subcontractors were building industry participants. Second, they submit the “pleadings are duplicitous and rolled up”.[100]
[100] Outline Submissions for First to Tenth and Fourteenth Respondents (The Respondents, Applicants in the Application in a Case filed 23 June 2016 (Respondents’ Submissions), [22]
It is true that paragraph 28 of the statement of claim, viewed on its own, pleads conclusions that do not state the underlying facts. But that paragraph must be read in the context of the statement of claim as a whole. As my summary of it reveals, the statement of claim identifies in paragraphs 76, 107, 158, 160, 179, and 182 the particular subcontractors who were engaged by DMG to carry out work on the Barangaroo Site and the Harold Park Site that DMG had been contracted to carry out, and the work DMG had contracted the subcontractors to carry out. On a reasonable reading of the statement of claim read as a whole, the facts on which paragraph 28 are based are sufficiently identified.
Paragraph 29
The respondents submit paragraph 29 “pleads an unknown number of conclusions”, and does not plead the material facts to sustain the allegation that each of the “Subcontractor Employees” was at all material times a person whose employment consisted of or included building works.[101]
[101] Respondents’ Submissions, [23]
Again, considered alone, paragraph 29 does plead conclusions without the supporting facts. But the allegation must be read with other paragraphs. These include paragraphs 18, 21, 24, 76, 107, 158, 160, 179, and 182 of the statement of claim. The respondents have not submitted that the allegations made in these paragraphs do not support the allegation made in paragraph 29 of the statement of claim. Paragraph 29, therefore, is not objectionable.
Paragraphs 33, 34, 35, 36, 38, and 39
The respondents submit these paragraphs are “vague even as to the relevant times”, and they do not plead material facts.[102]
[102] Respondents’ Submissions, [24]
The Director, in his submissions, refers to correspondence between the respondents’ lawyer and the Director’s lawyer in which particulars of these paragraphs, with the exception of paragraph 35, were requested and provided.[103] The particulars the Director’s lawyers provided in relation to paragraphs 33, 34, 36, 38, and 39 are contained in paragraphs 6-11 of the Director’s lawyer’s letter dated 12 April 2016.[104] The respondents do not refer to the particulars the Director provided; and they have made no submissions about their adequacy.
[103] Director’s Submissions in respond to the Application in a Case by the First to Tenth and Fourteenth Respondents (Director’s Submissions), [20]
[104] Affidavit of T J McCauley, 22.02.2016; exhibit “TJM2”, pages 13-14
In my opinion, the allegations made in paragraphs 33, 34, 35, 36, 38, and 39 of the statement of claim do allege material facts, and any lack of particularity in relation to paragraphs 33, 34, 36, 38, and 39 has been overcome by the particulars the Director provided to the respondents’ lawyer. The respondents did not request particulars of paragraph 35 of the statement of claim.
Paragraph 37
Paragraph 37 alleges the CFMEU rejected and did not agree to accept DMG’s proposed enterprise agreement. The respondents submit paragraph 37 pleads a conclusion, rather than the material facts on which it is based.[105]
[105] Respondents’ Submissions, [25]
This part of the respondents’ submissions seems to rest on the proposition that any conclusion of fact falls foul of the rule that the pleading must state material facts. As I have already noted, however, that is not correct. The rules of pleading distinguish material facts from the evidence required to prove the facts. That necessarily means that material facts, at least in most cases, must be conclusions that are based on evidence.
Paragraph 37 of the statement of claim does plead a material fact. It provides sufficient particulars of the matters on which the Director relies for that conclusion, namely, the CFMEU’s subsequent conduct in proposing an alternative arrangement. Paragraph 37, therefore, is not objectionable.
Workplace rights
Paragraph 43 of the statement of claim pleads that at all material times, including on 13, 14, 16, and 17 February 2015, DMG had a workplace right within the meaning of s.341 of the FW Act in that it was “able to initiate or participate in the making of an enterprise agreement”. The respondents submit this pleads a conclusion that may depend on the allegations contained in paragraphs 32, 33, and 34 of the statement of claim which are themselves conclusions. The respondents submit paragraph 43 does not plead the material facts to sustain the allegation, and that it is unclear why such right is said to exist.[106]
[106] Respondents’ Submissions, [26]
It is true that, by itself, paragraph 43 does not plead the material facts that support the proposition that during 13, 14, 16, and 17 February 2015, DMG had a workplace right within the meaning of s.341 of the FW Act in that it was “able to initiate or participate in the making of an enterprise agreement”. But the allegation made in that paragraph must be read in the context of the statement of claim as a whole. The ability to initiate or participate in the making of an enterprise agreement is a matter covered by a number of provisions of Part 2-4 of the FW Act. That ability is conferred on an employer. There is no question the statement of claim alleges DMG was an employer at all relevant times. It necessarily follows, therefore, that the statement of claim has pleaded the material fact on the basis of which it may be alleged DMG had the ability to initiate and participate in the making of an enterprise agreement.
The respondents submit that paragraph 44 of the statement of claim “pleads conclusions galore”.[107] Paragraph 44 alleges that at all material times, including on 13, 14, 16, and 17 February 2015, DMG exercised a right not to make an enterprise agreement on the terms proposed by CFMEU NSW or the CFMEU or on terms agreeable to them. That allegation must be read with the particulars the Director provided to the respondents.[108] According to the particulars, DMG communicated to the CFMEU or CFMEU NSW that it did not accept the CFMEU’s proposed enterprise agreement directly through its employee Mr Mazzaloro on 22 October 2014 and 17 November 2014, and indirectly through the Concrete Placers Association on 18 August 2014, 28 August 2014, 8 September 2014, and 25 September 2014. In my opinion, therefore, paragraph 44 pleads a material fact, and is not, therefore, objectionable.
[107] Respondents’ Submissions, [27]
[108] Affidavit of T J McCauley, 22.02.2016; exhibit “TJM2”, [11]; [13]
The respondents submit paragraph 45 pleads a “rolled up conclusion of intent to coerce”, and depends on paragraph 44.[109] It is true paragraph 45 pleads a conclusion. By its terms, however, it is a conclusion based on the matters alleged in paragraphs 48-209C of the statement of claim. As I have noted earlier in these reasons, it is not necessarily objectionable for a statement of claim to allege a conclusion based on other allegations made in the statement of claim; and often, it adds to the clarity of a pleading for it to state a conclusion based on other allegations contained in it.
[109] Respondents’ Submissions, [29]
In my opinion, however, the allegation made in paragraph 45 of the statement of claim is problematic. First, it is redundant, given the allegations made in the paragraphs of the statement of claim to which paragraph 45 refers. Second, it is likely to be a difficult pleading to answer. The respondents will have to formulate a rolled up answer that accurately reflects the answers they make to the 150 or so specific allegations on which the conclusion stated in paragraph 45 of the statement of claim is based. That would cause vexation to the respondents. Paragraph 45, therefore, should be struck out.
The respondents submit that paragraph 46 wholly depends on the matters alleged in paragraphs 48-209C of the statement of claim and should, therefore, be struck out to the extent any of paragraphs 48-209C are struck out. They also allege that the words “action of a type pleaded in” are embarrassing.[110] In my opinion, paragraph 46(b) of the statement of claim suffers from the same vice as paragraph 45. The paragraphs, if left to stand, will require the respondents to frame a rolled up pleading that accurately summarises the responses the respondents will make to the 150 or so specific allegations made in paragraphs 48-209 of the statement of claim. That would cause vexation to the respondents. Paragraph 46(b) of the statement of claim, therefore, should be struck out. Paragraph 46(a) of the statement of claim, however, is not objectionable.
[110] Respondents’ Submissions, [30]
Events of 13 February 2015
The respondents submit paragraphs 48-52, 55, and 55A of the statement of claim do not plead material facts because the Director does not allege that any of the respondents contravened the FW Act as a result of the matters pleaded in these paragraphs.[111] The Director, on the other hand, submits these paragraphs provide “relevant narrative leading to the contraventions and is relevant to the contraventions pleaded against the Respondents identified as being involved in the demonstration that day”.[112]
[111] Respondents’ Submissions, [31]
[112] Director’s Submissions, [27]
It is not the function of a statement of claim to plead a narrative if such narrative does not allege material facts, or particulars of material facts. If the matters that are alleged in these paragraphs to have occurred on 13 February 2015 are relevant to the contraventions alleged to have occurred on 14, 16, and 17 February 2015, evidence of those matters may be led at the hearing. Paragraphs 48-52, 55 and 55A of the statement of claim, therefore, should be struck out.
Events of 14 February 2015
The respondents submit paragraph 72 is embarrassing because it alleges DMG was due to carry out “work” at the Barangaroo Site on 14 February 2015 pursuant to the Barangaroo Contract, yet the Director has not provided the respondents with a copy of the contract, and the word “work” is ill-defined.[113]
[113] Respondents’ Submissions, [37]
That the respondents have not been provided with a copy of the Barangaroo Contract does not render paragraph 72 embarrassing. As I have already noted, the Director’s lawyer offered to provide a redacted copy of the Barangaroo Contract to the lawyer for the respondents, but the respondents have not informed the Director’s lawyer whether that offer is acceptable.
Nor is the word “work” ill-defined and embarrassing for that reason. The statement of claim describes the subject matter of the Barangaroo Contract, namely, the provision by DMG of concrete pumping services to Lend Lease at the Barangaroo Site. Further, in its letter providing particulars, the Director stated that DMG was scheduled to perform two concrete pours on the Barangaroo Site on 14 February 2015.[114] It is clear, therefore, that the “work” paragraph 72 of the statement of claim alleges DMG was due to carry out at the Barangaroo Site on 14 February 2015 was to pour concrete. Paragraph 72, therefore, is not objectionable.
[114] Affidavit of T J McCauley, 22.02.2016; exhibit “TJM2”, [37]
The respondents submit the expression “the DMG employees” pleaded in paragraph 73 is embarrassing, presumably because it does not identify the employees.[115] Paragraph 73 is not embarrassing. It alleges the employees of DMG whom DMG would have directed to undertake the work pleaded in paragraph 72 were engaged in an indefinite strike, being the industrial action pleaded in paragraph 42 of the statement of claim. The identity of the employees who would have been directed to undertake that work is not relevant to the allegation made in paragraph 73.
[115] Respondents’ Submissions, [38]
The respondents submit paragraph 74 of the statement of claim is embarrassing because it alleges in one rolled up pleading that DMG subcontracted with four subcontractors to carry out all or part of the work DMG was due to carry out on 14 February 2015.[116] Paragraph 74, however, must be read with paragraphs 24 and 25 of the statement of claim. Paragraph 24 alleges DMG, from time to time, procured the subcontractors identified in paragraph 25 of the statement of claim to pump concrete or supply labour necessary for the performance of activities associated with pouring concrete at the Barangaroo Site and Harold Park Site. Paragraph 25 contains particulars of the contracts pursuant to which DMG had engaged each of the subcontractors. It is sufficiently clear, therefore, that paragraph 74 of the statement of claim alleges DMG had engaged four of the subcontractors identified in paragraph 25 of the statement of claim to perform the work DMG was required to perform on 14 February 2015 at the Barangaroo Site, and that DMG did so pursuant to the contracts particularised in paragraph 25 of the statement of claim. Paragraph 74, therefore, is not embarrassing, or otherwise objectionable.
[116] Respondents’ Submissions, [39]
Nor can it be said that paragraph 74 is embarrassing because the respondents have not been provided with a copy of the subcontracts. In their request for further and better particulars, the respondents requested the Director provide a copy of the contracts referred to in paragraph 25 of the statement of claim.[117] The Director, through his lawyer’s letter dated 18 April 2016, offered to provide a copy of the contracts provided certain information was redacted, and on the basis that inspection of the contracts be limited to the respondents’ lawyers.[118] Although in his letter dated 19 April 2016[119] the respondents’ lawyer said he would seek instructions about this offer, there is no evidence the respondents’ lawyer responded to the Director’s offer.
[117] Affidavit of T J McCauley, 22.02.2016; exhibit “TJM1”, [5]-[8]
[118] Affidavit of T J McCauley, 22.02.2016; exhibit “TJM4”
[119] Affidavit of T J McCauley, 22.02.2016; exhibit “TJM5”
The respondents submit paragraph 75 of the statement of claim is embarrassing because it consists of rolled up allegations about an unnamed number of employees of one of the subcontractors.[120] That mischaracterises paragraph 75. That paragraph alleges the activities that were required to be undertaken to perform the work which I have found is sufficiently identified in paragraph 72 of the statement of claim. Paragraph 75, therefore, is not objectionable.
[120] Respondents’ Submissions, [40]
The respondents submit paragraph 76 of the statement of claim contains “at least eighteen rolled up general conclusions (prevent or obstruct or effectively block)”.[121] The respondents submit there is an embarrassing reference to “DMG Employees” and to “CFMEU Officers”. The respondents also submit the particulars to paragraph 76 do not plead sufficient material facts to identify the subcontractor employees.[122]
[121] Respondents’ Submissions, [41]
[122] Respondents’ Submissions, [41]
The respondents submit paragraph 160 of the statement of claim “pleads an unknown number of rolled up conclusions eg use of the words including by in the preamble and in other paragraphs create uncertainty”.[171] The respondents, however, do not provide any further particulars of this submission. In my opinion, the only objectionable portion of paragraph 160 of the statement of claim is the allegation made in subparagraph 160(d) that Mr M Greenfield, Mr Kera, and Mr Manna raised “false safety issues”. The facts underlying this allegation are not specified, and the subparagraph should be struck out. Subparagraph 160(a1) is a general allegation, but not to the extent that it cannot be considered to be a material fact. It is an allegation that adequately discloses the facts alleged against the CFMEU Officers referred to in paragraph 160.
[171] Respondents’ Submissions, [83]
The respondents submit that striking out paragraph 160 of the statement of claim should lead to the striking out of paragraphs 161, 162, 162A, 170, 171, 172, 172A, 172B, and 173 of the statement of claim.[172] Given I have concluded that, with the exception of subparagraph 160(d), paragraph 160 of the statement of claim is not objectionable, and these paragraphs are not liable to be struck out only because paragraph 160 is to be struck out.
[172] Respondents’ Submissions, [83]
The respondents submit that paragraphs 162A and 162C “plead no contravention at law”.[173] The complaint is that these paragraphs do not allege “it was intended by each respondent that pressure be exerted which, in a practical sense, negated choice and secondly that the exertion of the pressure must involve conduct that is unlawful, illegitimate or unconscionable”.[174] Paragraphs 162A and 162C of the statement of claim rely on the matters alleged in paragraph 160 for concluding that the relevant respondents referred to in those paragraphs engaged in conduct in contravention of s.343 of the FW Act. The respondents do not submit that the matters alleged in paragraph 160, if true, do not reasonably state a case that the relevant respondents have contravened s.343 of the FW Act. In the absence of any such submission, I do not accept that paragraphs 162A and 162C of the statement of claim are objectionable because they do not in terms allege the respondents contravened the constituent legal elements of “coercion”, as that expression has been construed in the context of s.343 of the FW Act.
[173] Respondents’ Submissions, [84]. This paragraph incorrectly refers to paragraph 163C, rather than to paragraph 162C.
[174] Respondents’ Submissions, [84]
The respondents submit the allegation in paragraph 170(b) of the statement of claim that the matters alleged in paragraph 160 of the statement of claim could not amount to “industrial action” for the purposes of FW Act.[175] That is the same submission the respondents made in relation to paragraphs 94(b) and 97(b) of the statement of claim I have already considered. For the reasons I have already given, I am not satisfied the Director has no reasonably arguable prospects of succeeding on its allegation that the matters alleged in paragraph 160 of the statement of claim constituted “industrial action” within the meaning of s.19(1)(b) and s.342(1) Item 7(a) of the FW Act. I do not propose, therefore, or order that paragraphs 170(b) of the statement of claim be struck out.
[175] Respondents’ Submissions, [86]. This paragraph incorrectly refers to paragraph 107 of the statement of claim, rather than paragraph 160 of the statement of claim.
Paragraph 173 of the statement of claim makes the same allegation of accessorial liability in relation to those of the respondents who are alleged to have been involved in the 17 February 2015 events as paragraph 152 of the statement of claim makes in relation to those of the respondents who are alleged to have been involved in the 16 February 2015 Harold Park events.[176] Paragraph 173 of the statement of claim is not objectionable for the reasons I have concluded paragraphs 100, 131, and 152 are not objectionable.
[176] Respondents’ Submissions, [88]
The respondents submit paragraphs 161, 162, 162A, 169, 170, 171, 172A and 172B plead rolled up conclusions.[177] Considered alone, each of these paragraphs do plead conclusions; but each paragraph identifies the material facts pleaded elsewhere in the statement of claim on which it relies. Paragraphs 161, 162, 162A, 169, 170, 171, 172A and 172B, therefore, are not objectionable.
[177] Respondents’ Submissions, [89]
17 February Harold Park Site Events
The respondents submit paragraph 177 is embarrassing because it alleges DMG was due to carry out “work” at the Harold Park Site on 17 February 2015 pursuant to the Harold Park Contract, yet the Director has not provided the respondents with a copy of the contract, and the word “work” is ill-defined.[178]
[178] Respondents’ Submissions, [90]
That the respondents have not been provided with a copy of the Barangaroo Contract does not render paragraph 177 embarrassing. Nor is the word “work” ill-defined and embarrassing for that reason. The statement of claim describes the subject matter of the Harold Park Contract, namely, the provision by DMG of concrete pumping services to Mirvac at the Harold Park Site. Further, in its letter providing particulars, the Director states that DMG was scheduled to carry out a concrete pour at Building B of the Harold Park Site on 17 February 2015.[179] It is clear, therefore, the “work” paragraph 177 alleges DMG was due to carry out at the Harold Park Site on 17 February 2015 was to pour concrete.
[179] Affidavit of T J McCauley, 22.02.2016; exhibit “TJM2”, [110]
The respondents submit the expression “the DMG employees” pleaded in paragraph 178 is embarrassing.[180] I disagree. Paragraph 178 alleges the employees of DMG whom DMG would have directed to undertake the work pleaded in paragraph 177 were engaged in an indefinite strike, being the industrial action pleaded in paragraph 42 of the statement of claim. The identity of the employees who would have been directed to undertake that work is not relevant to the allegation made in paragraph 178.
[180] Respondents’ Submissions, [91]
The respondents submit paragraph 180 of the statement of claim is embarrassing because it consists of rolled up conclusions about an unnamed number of employees of Civic Contracting and LongReach.[181] That mischaracterises paragraph 180. That paragraph alleges the activities that were required to be undertaken to perform the work which I have found is sufficiently identified in paragraph 177 of the statement of claim. Paragraph 180 of the statement of claim, therefore, is not objectionable.
[181] Respondents’ Submissions, [92]
The respondents submit paragraph 182 pleads two rolled up conclusions.[182] The first is that Mr Sloane raised “sham safety issues relating to the LongReach concrete pump”; and the second is Mr Sloane “speaking to the 17 February Harold Park Subcontractor Employees and dissuading them from performing work”. In my opinion, both allegations are objectionable. The word “sham” is a conclusion whose meaning cannot reasonably be ascertained without the underlying facts on which it is based being stated. To give reasonable notice of those matters, it would be necessary to identify the safety issues Mr Sloane is alleged to have raised, and the facts on which the Director relies for alleging the safety issues raised were not what Mr Sloane, to his knowledge, represented them to be. The word “dissuade” is also a conclusion whose meaning cannot be ascertained without at the very least stating the effect of what it is alleged Mr Sloane said.
[182] Respondents’ Submissions, [93]
Paragraph 182 of the statement of claim, therefore, should be struck out. That also means that:
a)paragraphs 183, 184, 184A, 184C, 192, 193, 194, 194A, and 194B of the statement of claim should be struck out; and
b)the words “Second Harold Park Action” should be struck out from paragraph 199 of the statement of claim, although for reasons I give below, paragraph 199 should be struck out in its entirety.
Cumulative Conduct
In paragraphs 199-209 of the statement of claim, which appear under the heading “Cumulative Conduct”, the Director alleges the actions alleged to have occurred on the Barangaroo Site on 14, 16, and 17 February 2015, and on the Harold Park Site on 16 and 17 February 2015, were actions taken by the CFMEU and CFMEU NSW against DMG and the subcontractors:
a)with the intention of preventing or obstructing work being performed by DMG and its subcontractors on the Barangaroo Site and the Harold Park Site;[183]
b)with the further intention of coercing DMG to agree in whole or in part to a proposed enterprise agreement on terms proposed by or agreeable to the CFMEU;[184]
c)that had the effect of directly or indirectly prejudicing DMG and the subcontractors in relation to a contract for services within the meaning of s.342(1) Item 7(c) of the FW Act, and also constituted the organising or taking of industrial action against DMG within the meaning of s.19(1)(b) and s342(1) Item 7(a) of the FW Act;[185]
d)because DMG exercised a workplace right by rejecting an enterprise agreement proposed by the CFMEU,[186]
and that for these reasons, CFMEU or CFMEU NSW contravened s.340 of the FW Act.
[183] Statement of claim, [199]
[184] Statement of claim, [200]
[185] Statement of claim¸ [205]
[186] Statement of claim, [203]; [205]
The respondents submit these allegations plead rolled up conclusions. They do. But it is reasonably clear which of the alleged facts are “rolled up” in this part of the pleadings. They are facts alleged elsewhere in the statement of claim. This part of the statement of claim, therefore, is not objectionable on that score. It is, however, objectionable for other reasons.
It appears this part of the statement of claim alleges that all of the facts on which it relies disclose a single contravention by the CFMEU and CFMEU NSW of each of s.340 and s.343 of the FW Act. That this is the intention of this part of the statement of claim is confirmed by the following passage from the Director’s written submissions:[187]
The very point of the pleading is that the items of conduct and action pleaded separately in the ASOC, and [sic] also to be assessed on a cumulative basis by the Court so as to ground a submission that the Applicant does not assert a case simply on the basis of a number of incidents. Paragraph 199 puts the Respondents on notice of this alternative approach to the case.
So, for example, in the event that the Court were to find in relation to one incident (say the 16 February 2015 conduct) that the Applicant failed to satisfy the Court that the conduct was carried out with the relevant intent under section 343, the Applicant will invite the Court to regard the evidence of other incidents on 14 February 2015 as a course of continuous conduct from which the intention can be sufficiently gleaned.
[187] Director’s Submissions, [63]-[64]
These paragraphs assume that the acts of different officers of the CFMEU and CFMEU NSW undertaken at different times can be regarded as a single course of conduct, and, hence, a single contravention by the CFMEU and by CFMEU NSW. That assumption, however, is incorrect.
Under s.793(1) of the FW Act, a body corporate is taken to engage in conduct that contravenes the FW Act only if the conduct has been engaged on behalf of the body corporate:
a)by an officer, employee or agent (an official) of the body within the scope of his or her actual or apparent authority; or
(b)by any other person at the direction or with the consent or agreement (whether express or implied) of an official of the body, if the giving of the direction, consent or agreement is within the scope of the actual or apparent authority of the official;
If, to establish a contravention of the FW Act by a body corporate, it is necessary to establish the state of mind of a body corporate in relation to particular conduct, then s.793(2) of the FW Act provides that it is enough to show that the conduct was engaged in by a person referred to in s.793(1)(a) or s.793(1)(b) of the FW Act, and that that person had that state of mind.
It will be seen from s.793 of the FW Act that a body corporate’s contravention of a provision of the FW Act depends entirely on natural persons of the classes identified in s.793(1) of the FW Act engaging in conduct on behalf of the body corporate within that person’s actual or apparent authority, or in accordance with a direction given by an official of the body corporate within that official’s actual or apparent authority. And where a necessary element of a contravention of a provision of the FW Act is the contravener’s holding a particular state of mind, the relevant state of mind of the body corporate will be that of the natural person who engaged in the conduct. Thus, if two different officers of a body corporate, Officer 1 and Officer 2, independently engage in distinct, but similar conduct that can constitute a contravention of the FW Act only if engaged in with a particular state of mind, but only Officer 1 holds that state of mind, the body corporate will be taken to have engaged in only one contravention of the FW Act; the contravention will have been that constituted by the conduct of Officer 1. The body corporate cannot be taken to have contravened any provision of the FW Act because of the conduct of Officer 2, because Officer 2 will not have had the required state of mind.
The statement of claim in this proceeding alleges that different respondents, being officers of the CFMEU and CFMEU NSW, took action on three occasions at the Barangaroo Site, and on two occasions at the Harold Park Site. The statement of claim relies on these officers’ contraventions of s.340 (and s.343) of the FW Act for claiming the CFMEU and CFMEU NSW have contravened those provisions. Given that a particular state of mind is a necessary element for the contravention of s.340 (and s.343) of the FW Act, the CFEMU’s and CFMEU NSW’s state of mind can only be that of the particular natural person respondent it is alleged engaged in the conduct on behalf of the CFMEU and CFMEU NSW. In those circumstances, if the Court finds a particular natural person respondent did not engage in conduct with the required state of mind on one occasion, the conclusion will be that the CFMEU and CFMU NSW will not have contravened the FW Act because of that person’s conduct on that occasion. That the Court may find that a different natural person respondent engaged in conduct on a different day, or at a different site, or even at the same site, with the requisite state of mind, will not overcome the Court’s finding that the CFMEU or CFMEU NSW did not contravene the FW Act because of the conduct of the relevant natural person respondent who did not have the requisite intent.
It may be open at the trial for the Director to submit the Court should draw inferences about a particular respondent’s state of mind on a particular occasion having regard to what that person did or did not do on another occasion. And it may be that, in relation to each of the actions alleged to have taken place at the Barangaroo Site and the Harold Park Site, the conduct of each respondent alleged to have organised or taken that action may be received as evidence against each other respondent who had taken that action as evidence of a conspiracy.[188] But it will not be open to the Court to conclude that the CFMEU or CFMEU NSW is to be taken to have contravened s.340 of the FW Act because of a particular respondent’s conduct on a particular occasion who did not have the required state of mind because a different respondent on a different occasion engaged in contravening conduct with the required state of mind.
[188] See s.57(2) Evidence Act 1995 (Cth)
There are cases that have considered whether the knowledge of different agents of a body corporate of different facts may be attributed to the corporation so that the company may be taken to have the combined knowledge of the agents. The cases are discussed in Ford, Austin & Ramsay’s Principles of Corporations Law.[189] The authors there consider the circumstances in which the knowledge of different agents may be combined and attributed to the body corporate of which they are agents. It is not clear whether the Director intended to rely on any of the principles considered in these cases. In any event, if the Director intended to rely on those principles, the statement of claim does not appear facts on the basis of which those principles can reasonably be said to apply.
[189] LexisNexis Butterworths, Ford, Austin & Ramsay’s Principles of Corporations Law (at Service 129) [16.230]
There is another difficulty with paragraphs 199-209 of the statement of claim. If this part of the statement of claim stands, the respondents will be required to plead in a summary way the effect of the answers the respondents will make to the many other paragraphs of the statement of claim on which this part of the statement of claim is based. That will cause vexation.
For these reasons, paragraphs 199-209 of the statement of claim should be struck out.
Paragraphs 209A-209C
The respondents submit paragraphs 209A, 209B, and 209C should be struck out because they are based on paragraph 107 of the statement of claim that is objectionable. Given I have concluded paragraph 107 is not objectionable, paragraphs 209A, 209B, and 209C are also not objectionable.
Declarations
The respondents also claim that I should strike out the declarations sought by the respondents. In my opinion, it is premature to consider whether the declarations sought are appropriate.
Other matters
There is a slight difference between the paragraphs of the statement of claim the application in a case seeks to be struck out, and the paragraphs of the statement of claim that are identified in the respondents’ written submissions. As will be apparent from these reasons, I have only considered the paragraphs of the statement of claim that are the subject of the respondents’ written submissions.
Finally, the respondents have submitted I should order the Director to pay the respondents’ costs thrown away as a result of the Director’s having withdrawn several paragraphs from the statement of claim. Unless there is some compelling reason for me to do otherwise, I propose to deal with all questions of costs after I make final orders in this proceeding.
Conclusion and disposition
The statement of claim is a lengthy and, to some degree, complex document. Its length and complexity is in large part due to the nature of the elements of s.340 and s.343 of the FW Act, the nature and number of the acts it alleges constituted contraventions of s.340 and s.343 of the FW Act, and the number of respondents who are alleged to have taken the relevant conduct. The statement of claim, however, is premised on a relatively small set of alleged facts. Ignoring the paragraphs of the statement of claim I have concluded should be struck out, those facts are alleged with a degree of particularity that should leave the respondents in no doubt about the facts that are alleged against them, and the grounds on which the Director relies for claiming that those facts, if proved, demonstrate the respondents contravened s.340, s.343, and s.362 of the FW Act.
I propose to order that paragraphs 45, 46(b), 48, 49, 50, 51, 51A, 52, 55, 55A, 77(a1), 108(c), 108(d), 108(g), 108(h), 140(a), 140(b), 140(b1), 140(f), 160(d), 182, 183, 184, 184A, 184C, 192, 193, 194, 194A, 194B, 199, 200, 201, 201A, 202, 203, 204, 205, 205A, 206, 207, 208, and 209 of the statement of claim be struck out. The Director will be at liberty to apply for leave to replead these paragraphs should he be so advised. I will also order that the matter be listed for further directions on date convenient to the parties, and that the question of costs be reserved.
I certify that the preceding one hundred and eighty-four (184) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis
Date: 21 December 2016
- AGLC
- Director Of The Fair Work Building Industry Inspectorate v Construction, Forestry, Mining And Energy Union & Ors (No.2) [2016] FCCA 3322
- Case
- [2016] FCCA 3322
- Decision Date
CaseChat Overview and Summary
The court was required to determine whether the actions of the respondents, including arranging for employees to attend the site, positioning themselves to block entry, making threats to subcontractors and their employees, and entering the site to interfere with work preparations, amounted to unlawful obstruction or hindrance of work, or coercion of employers and employees, in contravention of the Fair Work Act. The legal issues centred on the interpretation and application of provisions relating to industrial action, right of entry, and freedom of association within the construction industry.
The court found that the evidence established that the respondents, through a series of organised actions on both 13 and 14 February 2015, engaged in conduct that was intended to and did prevent or obstruct subcontractors from performing work at the Barangaroo Site. This conduct included direct threats and intimidation directed at subcontractors and their employees, labelling employees as "scab labour," and physically positioning individuals to block site access. The court applied the principles of statutory interpretation to the relevant provisions of the Fair Work Act, concluding that the respondents' actions fell within the scope of prohibited conduct, particularly concerning the obstruction of work and coercion of employers. The court determined that the actions were not protected industrial action and constituted unlawful conduct.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
At approximately 7.30 am on 13 February 2015, the tenth respondent, Mr Manna, telephoned Mr Nicola Titone of Preston to ask whether Preston had any employees engaged to carry out work at the Barangaroo Site that morning.[36] In the meantime, from around 6.45 am that morning, and at times during the day of 13 February 2015, the fifth respondent, Mr M Greenfield, the sixth respondent, Mr D Greenfield, and the seventh respondent, Mr Collier, arranged, or assisted in arranging, a group of DMG Employees and themselves to attend the Barangaroo Site, and position themselves in the vicinity of one or more entry points to the Barangaroo Site (Stop Work Demonstration).[37] [36] Statement of claim, [51A][37] Statement of claim, [52] During the Stop Work Demonstration, and at least at around 10.22 am, the third respondent, Mr Parker, and the fourth respondent, Ms Mallia, arrived by bus with 40 to 50 DMG Employees, joined the group that had already assembled, and addressed the group, telling them to organise the stoppage of work at the Barangaroo Site. Sometime during the Stop Work Demonstration, the eighth respondent, Mr Sloane, and a CFMEU officer, Mr Ben Garvey, joined the Stop Work Demonstration.[38] At approximately 1.00 pm and 3.00 pm on 13 February 2015 Mr Manna telephoned Mr Serge Ciaschetti of Commercial Concrete Pty Ltd (Commercial) to ask whether Commercial had employees engaged to carry out work for DMG on 14 February 2015.[39] [38] Statement of claim, [55][39] Statement of claim, [55A] On 14 February 2015 DMG was again due to carry out work at the Barangaroo Site pursuant to the Barangaroo Contract (14 February Work).[40] The DMG Employees who would have performed the work on that day, however, were engaged in protected industrial action in the form of an indefinite strike.[41] DMG, therefore, subcontracted Zanet Concrete Pumping Pty Ltd (Zanet Pumping), Commercial, Preston, and Zenith, to carry out part or all of the 14 February Work.[42] The performance by these subcontractors of that work required their trucks and their employees to enter the Barangaroo Site.[43][40] Statement of claim, [72][41] Statement of claim, [73][42] Statement of claim, [74][43] Statement of claim, [75] From around 5.45 am on 14 February 2015, the ninth respondent, Mr Kera, the fourteenth respondent, Mr Wyer, Ms Mallia, Mr Manna, Mr D Greenfield, and Mr Parker, arranged or assisted in arranging a group of DMG Employees and themselves to attend the Barangaroo Site and position themselves at the Hickson Road entrance so as to prevent or obstruct or effectively block trucks and the employees of the relevant subcontractors from entering the Barangaroo site.[44] During 14 February 2015, Mr Parker, Mr Manna, Mr Kera, Mr D Greenfield, Ms Mallia, and Mr Wyer engaged in further action to prevent or obstruct the 14 February Work being performed.[45] Such action included the following:[46]a)Mr Kera told the employees from Commercial they would be labelled scab labour;b)Mr Parker, Mr Manna, Mr Kera, Mr D Greenfield, Ms Mallia, and Mr Wyer, entered the Barangaroo Site for the purpose of interfering with the subcontractor employees inductions and their preparations for carrying out the scheduled works; c)Mr Manna told Zanet Pumping and Commercial not to perform work on DMG’s work sites;d)Mr Wyer told Mr Louie Mazzarolo of DMG that the subcontractors should not perform work while DMG workers are on strike;e)at approximately 7.30am Mr Parker called Mr Titone of Preston and told him Preston was forcing its employees to work against their will, that he had no problem if Preston allocated its employees to work on non-DMG sites, and threatened Mr Titone by saying Preston did not want to get on the wrong foot with Mr Parker;f)Mr Kera and Mr D Greenfield told Mr Mazzarolo that Zanet Pumping would not be permitted to perform work;g)Ms Mallia refused Mr Mazzarolo’s request that Ms Mallia instruct officers the CFMEU to cease calling the subcontractors and making threats to prevent work being carried out; andh)at approximately 7.15 am Mr Manna telephoned Mr Ciaschetti of Commercial and told him he should ensure Commercial employees did not carry out work for DMG, that it was not illegal for DMG employees to refuse to work, and threatened Mr Ciaschetti that he would take action against Commercial if it defied his instructions.[44] Statement of claim, [76][45] Statement of claim, [77][46] Statement of claim, [77]