Fair Work Ombudsman v Construction, Forestry and Maritime Employees Union (Kwinana Bulk Jetty Case)

[2025] FCA 994

FEDERAL COURT OF AUSTRALIA

Fair Work Ombudsman v Construction, Forestry and Maritime Employees Union (Kwinana Bulk Jetty Case) [2025] FCA 994

File number:

WAD 55 of 2022

Judgment of:

DOWLING J

Date of judgment:

22 August 2025

Catchwords:

INDUSTRIAL LAW – conduct at picket during period of industrial action – allegations that the Union and a member of the Union contravened provisions of the Fair Work Act 2009 (Cth) – whether contraventions of ss 343, 346 and 348 of the Act are established as against the member – principles pertaining to ss 343, 346 and 348 of the Act – Union liability for the member’s actions under ss 362, 363, 550 and 793 of the Act, vicarious liability at common law and per the principles in CCIG Investments Pty Ltd v Shockman (2023) 287 CLR 165, and direct liability – Union liability for actions of unknown picketers – calculation of non-economic loss

Legislation:

Evidence Act 1995 (Cth) ss 140, 191

Fair Work Act 2009 (Cth) ss 12, 181, 182, 341, 342, 343, 345, 346, 347, 348, 361, 362, 363, 545, 550, 793

Workplace Relations Act 1996 (Cth) s 298M (repealed)

Criminal Code Compilation Act 1913 (WA) ss 338A, 338B, 338C

Cases cited:

Adams v Director of the Fair Work Building Industry Inspectorate [2017] FCAFC 228; 258 FCR 257

A-G (NSW) v Brewery Employees Union of New South Wales (1908) 6 CLR 469

Alexander v The Queen (1981) 145 CLR 395

Alliance Craton Explorer Pty Ltd v Quasar Resources Pty Ltd [2013] FCAFC 29; 296 ALR 465

Atkins v North Australian Aboriginal Justice Agency Ltd [2024] FCA 686

Auimatagi v Australian Building and Construction Commissioner [2018] FCAFC 191; 267 FCR 268

Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (The Bay Street Case) [2018] FCA 83; 260 FCR 564

Australian Building and Construction Commissioner v Hall [2017] FCA 274; 269 IR 2

Australian Building and Construction Commissioner v Hall [2018] FCAFC 83; 261 FCR 347

Australian Building and Construction Commissioner v Huddy [2017] FCA 739

Australian Building and Construction Commissioner v McDermott (No 2) [2017] FCA 797; 252 FCR 393

Australian Building and Construction Commissioner v Molina [2020] FCAFC 97; 277 FCR 223

Australian Building and Construction Commissioner v Parker [2017] FCA 564; 266 IR 340

Australian Licenced Aircraft Engineers Association v International Aviation Service Assistance Pty Ltd [2011] FCA 333; 193 FCR 526

Australian Rail, Tram and Bus Industry Union v Railtrain Pty Ltd [2019] FCA 1740

Australian Securities and Investments Commission v Australian Investors Forum Pty Ltd (No 2) [2005] NSWSC 267

Baker v Taylor (1906) 6 SR (NSW) 500

Bathurst City Council v PWC Properties Pty Ltd [1998] HCA 59; 195 CLR 566

BHP Iron Ore Pty Ltd v Australian Workers' Union [2000] FCA 430; 102 FCR 97

Bird v DP [2024] HCA 41; 419 ALR 552

Bragdon v Director of the Fair Work Building Industry Inspectorate [2016] FCAFC 64; 242 FCR 46

Briginshaw v Briginshaw (1938) 60 CLR 336

British Marine PLC v Wollongong Coal Ltd [2015] FCA 403

Cadd v Cadd (1909) 9 CLR 171

CCIG Investments Pty Ltd v Schokman [2023] HCA 21; 287 CLR 165

CCL Secure Pty Ltd v Berry [2019] FCAFC 81

CFMMEU v Melbourne Precast (No 3) [2020] FCA 1309

Clayton Robard Management Ltd v Siu (1988) 6 ACLC 57

Coleman v Power [2004] HCA 39; 220 CLR 1

Commonwealth Bank of Australia v Kojic [2016] FCAFC 186; 249 FCR 421

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Laing (1998) 89 FCR 17

Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The Bay Street Appeal) [2020] FCAFC 192; 282 FCR 1

Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2017] FCAFC 50

Cubillo v Commonwealth (No 2) [2000] FCA 1084; (2000) 103 FCR 1

Dafallah v Fair Work Commission [2014] FCA 328; 225 FCR 559

Davids Distribution Pty Ltd v National Union of Workers [1999] FCA 1108, 91 FCR 463

Davies v The King (1937) 57 CLR 170

Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2015] FCA 225

Esso Australia Pty Ltd v Australian Workers’ Union [2016] FCAFC 72; 245 FCR 39

Esso Australia Pty Ltd v Australian Workers’ Union [2017] HCA 54, 263 CLR 551

Fair Work Ombudsman v Maritime Union of Australia [2014] FCA 440; 243 IR 312

Fair Work Ombudsman v Maritime Union of Australia [2017] FCA 1363

Fair Work Ombudsman v National Jet Systems Pty Ltd [2012] FCA 243; 218 IR 436

Festa v The Queen [2001] HCA 72; 208 CLR 593

Field v Shoalhaven Transport Pty Ltd [1970] 3 NSWR 96

Fox v Percy [2003] HCA 22; 214 CLR 118

General Motors-Holden v Bowling (1976) 51 ALJR 235

Giorgianni v The Queen (1985) 156 CLR 473

Hanley v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2000] FCA 1188; 100 FCR 530

Heiko Constructions v Tyson [2020] FCAFC 208; 282 FCR 297

Hoare v McCarthy (1916) 22 CLR 296

James Cook University v Ridd [2020] FCAFC 123; 278 FCR 566

Jensen v Cultural Infusion (Int) Pty Ltd [2020] FCA 358

Jones v Dunkel (1959) 101 CLR 298

Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; 243 CLR 361

Lo v Russell [2016] VSCA 323

Maritime Union of Australia v Fair Work Ombudsman [2015] FCAFC 120

Maritime Union of Australia v Fair Work Ombudsman [2016] FCAFC 102; 247 FCR 154

Marshall v The King [2023] ACTCA 11

Master Wealth Control Pty Ltd v Australian Competition and Consumer Commission [2024] FCAFC 171; 306 FCR 462

McLaughlin v Daily Telegraph Newspaper Co Ltd (1904) 1 CLR 243

Meridian Global Funds Management Asia Ltd v Securities Commission [1995] 2 AC 500; 3 NZLR 7

Morris v C W Martin & Sons Ltd [1966] 1 QB 716

Mpinda v Fair Work Commission (No 2) [2024] FCA 692

Murdoch University v National Tertiary Education Industry Union (No 2) [2017] FCA 1507

National Tertiary Education Industry Union v Commonwealth of Australia [2002] FCA 441; 117 FCR 114

Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170

Newton v Australian Postal Corporation (No 2) [2019] FCA 2192; 292 IR 396

NMFM Property Pty Ltd v Citibank Ltd (No 10) [2000] FCA 1558; 107 FCR 270

Palavi v Queensland Newspapers Pty Ltd [2011] NSWSC 274

Palgo Holdings Pty Ltd v Gowans [2005] HCA 28; 221 CLR 249

Patrick Stevedores Holdings Pty Limited v Construction, Forestry, Maritime, Mining and Energy Union (No 4) [2021] FCA 1481

Patrick Stevedores Holdings Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union (No 3) [2021] FCA 348; 304 IR 280

Patrick Stevedores Operations No 2 Proprietary Ltd v Maritime Union of Australia [1998] HCA 30; 195 CLR 1

Pitkin v The Queen (1995) 69 ALJR 612

Port Kembla Coal Terminal Ltd v Construction, Forestry, Mining and Energy Union [2016] FCAFC 99; 248 FCR 18

Poulet Frais Pty Ltd v Silver Fox Company Pty Ltd [2005] FCAFC 131; 220 ALR 211

Pourzand v Telstra Corporation Ltd [2014] WASCA 14

Precision Plastics Pty Ltd v Demir (1975) 132 CLR 362

R v Blick [2000] NSWCCA 61; 111 A Crim R 326

R v Smith (No 3) [2014] NSWSC 771

Secretary of the Ministry of Health v New South Wales Nurses and Midwives' Association [2022] NSWSC 1178, 320 IR 249

Seven Network (Operations) Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2001] FCA 456, 109 FCR 378

Smith v The Queen [2001] HCA 50; 206 CLR 650

Société d'Avances Commerciales (Société Anonyme Egyptienne) v Merchants' Marine Insurance Co (The "Palitana") (1924) 20 LI L Rep 140

Strauss v Police [2013] SASC 3; 115 SASR 90

Transport Workers’ Union of Australia v Qantas Airways Limited (No 2) [2021] FCA 1012; 308 IR 333

Transport Workers’ Union of Australia v Qantas Airways Limited [2021] FCA 873; 308 IR 244

Transport Workers’ Union of Australia v Qantas Airways Ltd [2024] FCA 1216; 334 IR 187

Williams v The Queen [2019] NSWCCA 53

Wood v The Queen [2012] NSWCCA 21; 84 NSWLR 581

Division:

Fair Work Division

Registry:

Western Australia

National Practice Area:

Employment and Industrial Relations

Number of paragraphs:

499

Date of hearing:

1-3 July 2024, 18 July 2024

Counsel for the Applicant

Mr J Bourke KC, Mr N Burmeister and Ms N Campbell

Solicitor for the Applicant

Clayton Utz

Counsel for the First Respondent

Mr P Boncardo

Solicitor for the First Respondent

Construction, Forestry and Maritime Employees Union

Counsel for the Second Respondent

Mr O Fagir

Solicitors for the Second Respondent

MDC Legal

ORDERS

WAD 55 of 2022

BETWEEN:

FAIR WORK OMBUDSMAN
Applicant

AND:

CONSTRUCTION, FORESTRY AND MARITIME EMPLOYEES UNION
First Respondent

JASON GILL
Second Respondent

ORDER MADE BY:	DOWLING J
DATE OF ORDER:	22 AUGUST 2025

THE COURT ORDERS THAT:

1.The parties confer as to orders reflecting the Court’s reasons and the timetabling of a hearing on further relief.

2.The matter be listed for a case management hearing on 5 September 2025 at 9:30 am.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

BACKGROUND	[4]
WITNESS EVIDENCE – RELEVANCE AND GENERAL OBSERVATIONS	[13]
Mr Christopher Copperthwaite	[14]
Mr Luis Coelho	[19]
Mr Michael Kranendonk	[23]
Mr Michael Rigoli	[24]
Dr Anthony Mander	[25]
ALLEGATIONS AND FINDINGS PRIOR TO 24 AUGUST 2021	[26]
Events prior to 24 August 2021 – evidence and factual findings	[27]
People and background to events prior to 24 August 2021	[27]
Media campaign	[30]
Mr Kranendonk’s evidence of events prior to 24 August 2021	[43]
Mr Rigoli’s evidence of events prior to 24 August 2021	[48]
Mr Copperthwaite’s evidence of events prior to 24 August 2021	[52]
Mr Coelho’s evidence of events prior to 24 August 2021	[54]
Findings and conclusions about events prior to 24 August 2021	[58]
ALLEGATIONS AND FINDINGS – GILL 24 AUGUST 2021 ACTION	[59]
Factual allegations regarding the Gill 24 August 2021 Action	[60]
Factual findings – Gill 24 August 2021 Action	[62]
Events immediately before Mr Gill’s threat	[64]
Mr Gill’s threat	[72]
What was the direction and distance of Mr Gill and Mr Copperthwaite?	[82]
The CCTV footage of Mr Gill and Mr Copperthwaite	[87]
Were there inconsistencies in the contemporaneous (and near contemporaneous) accounts?	[90]
Did Mr Copperthwaite know Mr Gill?	[100]
Was there an admission by Mr Gill that he spoke to Mr Copperthwaite?	[111]
Was Mr Copperthwaite’s identification of Mr Gill reliable?	[114]
The lack of any contradicting evidence and any available inferences	[123]
Other relevant events after the events at the Gate on 24 August 2021	[128]
Mr Copperthwaite security and rental car	[128]
The Mr The Mr Gill investigation	[131]
The two Mr Coelho incidents	[139]
The sulphur incident	[140]
The minivan incident	[147]
Standard of proof and conclusions on Mr Gill’s conduct	[150]
Conclusions on whether Mr Gill made the statement at ASOC 70(b)	[157]
Conclusions on whether Mr Gill made the statement at [70(a)]	[158]
Allegations of contraventions – Gill conduct summary	[163]
Principles and elements of ss 343, 346 and 348	[164]
Sections 343 and 348 – Coercion	[164]
“Intent to coerce”	[170]
The meaning of “action” in “organise or take any action”	[175]
The meaning of “organise” in “organise or take any action”	[177]
Section 346 – industrial activities adverse action	[181]
Adverse action	[183]
Onus and standard of proof	[186]
The allegation that the coercive conduct was unlawful, unconscionable and unreasonable	[189]
Alleged contraventions of sections 343, 346 and 348	[193]
Mr Gill’s coercion of Mr Copperthwaite – s 348	[195]
Mr Gill’s coercion of Mr Coelho – s 348	[202]
Mr Gill’s coercion of Qube – s 343	[205]
Mr Gill’s coercion of Qube – s 348	[217]
Mr Gill’s adverse action against Mr Copperthwaite – s 346	[221]
Mr Gill's adverse action against Mr Coelho – s 346	[231]
UNION LIABILITY GENERALLY	[234]
Union's liability for Mr Gill’s conduct	[244]
Union’s liability under ss 363 and 793	[246]
Acting within the scope of his actual or apparent authority	[270]
Union’s derivative liability under s 362	[286]
Union’s derivative liability pursuant to s 550	[292]
Vicarious liability at common law and Schokman	[299]
Alleged direct liability of the Union	[308]
ALLEGATIONS AND FINDINGS – (NON-GILL) 24 AUGUST 2021 ACTION	[318]
Factual allegations regarding other events on 24 August 2021	[318]
Factual findings about other events on 24 August 2021	[331]
Identity, arrival and gathering	[332]
Union stickers, clothing and flags	[339]
Mr Coelho arrival and other events	[348]
Mr Coelho’s arrival	[348]
Picketers shouting “scab” and “dog” upon Mr Coelho’s arrival – ASOC [68]	[357]
Mr Copperthwaite’s arrival and other events	[364]
Picketers shout “scab” and “dog” and “I know where you live” upon Mr Copperthwaites’s arrival – ASOC [70(a)]	[369]
A picketer whispers to Mr Copperthwaite “I’ll kill ya” and other picketers say to him “you’ll end up being killed” – ASOC [70(d)]	[380]
Picketers chant “MUA, HERE TO STAY!” – ASOC [70(e)]	[388]
A picketer says to Copperthwaite “while you’re doing this you should think about Charmaine and the kids” – ASOC [70(f)-(g), (h)]	[391]
A picketer says to Mr Copperthwaite “I’m going to make it hard for you if you keep doing this” – ASOC [70(gg)]	[397]
Picketers then shout at Mr Coelho “you dog”, “you scab”, “I am coming to get you” – ASOC [70(i)-(j)]	[401]
A picketer says “you should have become an MUA member and joined the picket line” to which Coelho responded “I’ll support you guys if you support my family, because I will be on strike with no income” – ASOC [70(k)]	[409]
A picketer then says “go in my doghouse” to Mr Coelho – ASOC [70(l)-(m)]	[416]
As Mr Copperthwaite and Mr Coelho enter the gate, a picketer makes a hand gun gesture towards Mr Coelho and Mr Copperthwaite – ASOC [70(n)-(p)]	[420]
Union liability for the (non-Gill) 24 August 2021 Action	[432]
Union liability under ss 363 and 793	[435]
Union vicarious liability at common law	[446]
Alleged direct liability of the Union	[449]
Allegations of contraventions – other events on 24 August 2021	[454]
RELIEF	[462]
COMPENSATION	[465]
Compensation	[465]
Mr Copperthwaite’s compensation	[471]
Quantum of compensation: Mr Copperthwaite	[475]
Mr Coelho compensation	[478]
Were the events water off a duck’s back?	[482]
CCTV footage	[490]
Continuing attendance at work	[493]
Dr Mander’s report	[494]
Conclusion on Mr Coelho compensation	[498]
DISPOSITION	[499]

REASONS FOR JUDGMENT

DOWLING J

1. The Kwinana Bulk Jetty is part of the greater Fremantle Harbour. Qube Ports Pty Ltd provides “specialist integrated port services” at the Harbour. From at least July 2021, the Maritime Union of Australia Division (MUA) of the Construction, Forestry and Maritime Employees Union was in dispute with Qube as to the terms of a proposed enterprise agreement to cover Qube employees at the Harbour. That dispute led to protected industrial action at the Harbour. It also led to confrontation and events at a picket at the Jetty on 24 August 2021. The applicant, the Fair Work Ombudsman, alleges those events contravened the Fair Work Act 2009 (Cth).

2. The Ombudsman alleges that Mr Jason Gill, the second respondent and an employee of Qube and member of the Union, said threatening and intimidating things to Mr Christopher Copperthwaite, an employee of Qube who continued to work through the protected industrial action, at the Jetty on 24 August 2021. The Ombudsman says those statements constituted breaches of various provisions of the Act by both Mr Gill and the Union. She says further that unknown persons made other statements and engaged in other conduct at the Jetty on that same day, directed at Mr Copperthwaite and Mr Luis Coelho, a labour hire employee engaged by Qube. She says those statements and that conduct also constituted breaches of various provisions of the Act by the Union.

3. For the reasons that follow I find that Mr Gill did make a threatening statement to Mr Copperthwaite on 24 August 2021. I find his conduct constituted breaches of the Act. However, I do not find the Union liable for his statement or for the statements and conduct of unknown persons at the Jetty.

   BACKGROUND

4. In or about October 2019, Qube and the Union commenced bargaining for a proposed enterprise agreement that would cover various Qube employees at the Harbour. Qube and the Union were bargaining representatives for that proposed enterprise agreement. During the bargaining, the Union organised protected industrial action in accordance with the Act and in order to advance its claims for the proposed agreement. Qube employees, who were to be covered by the proposed agreement, took that protected industrial action.

5. From around 30 July to 15 October 2021, various people were present at and around the Qube Fremantle operations at the Harbour, including at the gate known as Gate 6.2 at the Jetty, in what the parties described as a picket. The Union admits that a number of Qube employees were present at and around the gates to the Qube Fremantle operations at the Harbour during this period. The Union admits that it engaged in a media campaign in relation to the bargaining on behalf of its members for the proposed enterprise agreement. It also admits that a number of its officials attended at the Harbour from time to time between 30 July to 15 October 2021.

6. The Union accepts that its conduct in the period 30 July to 15 October 2021 included, first, asserting from time to time that protected industrial action would continue unless and until a new enterprise agreement was reached. Second, encouraging people to support Qube employees taking protected industrial action in support of the proposed enterprise agreement, including by attending a protest described as a picket at and around the gates of the Jetty. Third, criticising Qube from time to time, including in relation to bargaining for the proposed enterprise agreement. Fourth, financially assisting Qube employees who engaged in the protected industrial action and encouraging others to do so.

7. The Union further accepts that “from time to time … certain picketers” travelled to the Harbour in cars featuring Union stickers, wore Union branded clothing and waved Union flags, and chanted. I did not understand those admissions to be admissions as to the particular travel arrangements, clothing or conduct of those present at the Gate of the Jetty on 24 August 2021.

8. As explained, the Ombudsman alleges that the most significant events the subject of this application took place on 24 August 2021 at a picket at the Gate of the Jetty. In summary, she alleges that:

   (1)Mr Gill said to Mr Copperthwaite: “You’ll end up dead dog if you keep going like this” (the dead dog statement);

   (2)Mr Gill made barking sounds and yelled the words “scab”, “dog” and “I know where you live” in Mr Copperthwaite’s and Mr Coelho’s direction;

   (3)Unnamed and unknown picketers made barking sounds and yelled the words “scab”, “dog” and “I know where you live” in Mr Copperthwaite’s and Mr Coelho’s direction;

   (4)An unknown picketer whispered to Mr Copperthwaite: “I’ll kill ya”, and other unknown picketers said: “you’ll end up being killed”;

   (5)Unknown picketers repeatedly chanted: “MUA, HERE TO STAY!”;

   (6)An unknown picketer said to Mr Copperthwaite: “while you’re doing this you should think about Charmaine and the kids”;

   (7)An unknown picketer said to Mr Copperthwaite: “I’m going to make it hard for you if you keep doing this”;

   (8)Unknown picketers said to Mr Coelho: “you dog”, “you scab”, and “I am coming to get you”, and “you will suffer for life like the rest of the scabs”;

   (9)An unknown picketer said to Mr Coelho: “You should have become an MUA member and joined the picket line”;

   (10)An unknown picketer said to Mr Coelho: “Go in my doghouse” and/or “Oh you can sleep with my dog”; and

   (11)An unknown picketer made a hand gesture to the effect of a shooting gun which he aimed at Mr Coelho and then at Mr Copperthwaite, and also silently mouthed the words “Bang! You’re dead”.

   Each of these allegations are addressed below.

1. On 25 August 2021, Qube stood down Mr Gill “pending an investigation into a misconduct incident that occurred at the Kwinana Bulk Jetty on 24 August 2021”. There was no evidence that Qube stood down any of its other employees as a result of events at the Jetty on 24 August 2021.

2. On or about 15 October 2021, Qube and the Union reached an in-principle agreement as to the key term in dispute in the proposed enterprise agreement: a term concerning shift notification procedures. Immediately after the in-principle agreement was reached the protected industrial action ceased and the picket was disbanded. The Union admits that it organised, promoted and participated in the disbanding of the picket.

3. On 7 December 2021, after exchanges between Qube and Mr Gill and his representatives, Qube terminated the employment of Mr Gill as the result of “serious misconduct” arising from the events on 24 August 2021.

4. The Ombudsman commenced this proceeding by originating application and statement of claim on 24 March 2022. She amended her statement of claim, pursuant to leave given by me, on 24 May 2024. The Ombudsman seeks declarations and penalties against both Mr Gill and the Union for contraventions of s 343 (prohibiting coercion with respect to workplace rights), s 346 (prohibiting adverse action with respect to union membership or industrial activity) and s 348 (prohibiting coercion with respect to industrial activity) of the Act. She also seeks compensation for Mr Copperthwaite and Mr Coelho for the loss she says they have suffered as the result of the contraventions.

   WITNESS EVIDENCE – RELEVANCE AND GENERAL OBSERVATIONS

5. The Ombudsman led witness evidence from five witnesses. The respondents did not lead any witness evidence. The evidence of the Ombudsman’s witnesses is discussed in detail when addressing each of the allegations or other events. However, the following is a summary of the positions and relevance of those five witnesses with some general observations about the manner in which they gave their evidence.

   Mr Christopher Copperthwaite

6. For the period of the picket, July to October 2021, Mr Copperthwaite was employed by Qube as a Shift Manager. However, during that period he performed stevedoring duties rather than shift management duties.

7. Mr Copperthwaite gave general evidence about conduct at the Jetty in the period leading up to 24 August 2021. He gave evidence of the events on 24 August 2021, particularly the circumstances of the picket on that morning and the things said which were directed at him. He also gave evidence of the events that immediately followed on that day and after. Mr Copperthwaite wrote a note on the day of the events on 24 August 2021 that briefly described the events. He also attended the Kwinana Police Station on that day and completed an incident report. Mr Copperthwaite gave an oral account of the events to Australian Building and Construction Commissioner Inspector Robert Tonev on 24 February 2022. That account is recorded in a file note which Mr Copperthwaite signed agreeing that it was an accurate record. Mr Copperthwaite prepared an amended outline of evidence dated 24 May 2024 and further amended outline of evidence dated 29 June 2024. Both were admitted into evidence.

8. There were parts of Mr Copperthwaite’s evidence that were not entirely consistent with his earlier accounts as recorded in writing or in the interview with Inspector Tonev. There were parts of his evidence where he accepted that his recollection may have been faulty. These are discussed below. However, I do not consider that any error or concession on those matters was enough to undermine the material and most serious aspects of his evidence.

9. In CCL Secure Pty Ltd v Berry [2019] FCAFC 81, the Full Court (of McKerracher, Robertson and Lee JJ) observed (at [94]) that it has been a long time since the maxim “false in one thing, false in everything” was part of the common law, its broad applicability having been rejected long ago. The Full Court observed that it is trite that the tribunal of fact (be it a judge or jury), having seen and heard the witness, is to decide whether the evidence of the witness is worthy of acceptance and this may involve accepting or rejecting the whole of the evidence, or accepting some of the evidence and rejecting the rest, citing Cubillo v Commonwealth (No 2) [2000] FCA 1084; (2000) 103 FCR 1 at [118]-[123] (O’Loughlin J).

10. On the important aspects of Mr Copperthwaite’s evidence about the statements made to him on 24 August 2021, I found Mr Copperthwaite to be credible and largely consistent with his written record and conduct on and after that day. Mr Copperthwaite made concessions but his versions of the exchange with Mr Gill were largely consistent. They were not undermined by a contrary account, or any account, from Mr Gill.

    Mr Luis Coelho

11. Mr Coelho was employed by Pivotal Personnel Pty Ltd in the role of stevedore from May 2021. Pivotal supplied labour to Qube. Between May and December 2021, Mr Coelho was engaged by Pivotal as a casual stevedore on call out to Qube. Mr Coelho performed the work of stevedores who were otherwise taking protected industrial action. Mr Coelho described his work as “general labouring”.

12. Mr Coelho gave evidence of conduct at the Jetty in the period May to December 2021. He gave evidence of the events on 24 August 2021, particularly the circumstances of the picket on that morning and the things said, and actions taken, which were directed at him. He also gave evidence of the events that immediately followed that day and after. Mr Coelho wrote a note on the day of the events on 24 August 2021 that briefly described the events. He gave an account of the events to Inspector Tonev on 28 February 2022. That account was recorded in a file note which Mr Coelho signed agreeing that it was an accurate record.

13. Mr Coelho was a combative witness who often had to be reminded to answer the question. He gave evidence that he attended at the Harbour “two to three shifts per week” during the period of the picket. There is a risk that some of his evidence might have been conflated from days other than 24 August 2021. However, I accept his evidence where it accorded with written accounts of the events or video footage of the events or where it accorded with other witness evidence. There were occasions where it appeared Mr Coelho had exaggerated some aspect of his evidence. However, where it accorded with other evidence I accept it. As with Mr Copperthwaite, I do not approach Mr Coelho on the basis of “false in one thing, false in everything”.

14. I am also careful not to place too much emphasis on my assessment of Mr Coelho’s demeanour. In Fox v Percy [2003] HCA 22; 214 CLR 118 at [30], Gleeson CJ, Gummow and Kirby JJ cited with approval Société d'Avances Commerciales (Société Anonyme Egyptienne) v Merchants' Marine Insurance Co (The "Palitana") (1924) 20 LI L Rep 140 at 152, where Atkin LJ observed that an ounce of intrinsic merit or demerit in the evidence, that is to say, the value of the comparison of evidence with known facts, is worth pounds of demeanour. As I say, I weigh Mr Coelho’s evidence against the evidence of others and matters recorded in writing by him and others.

    Mr Michael Kranendonk

15. Mr Michael Kranendonk was the Manager of Western Australia for Qube from 2019. He was responsible for the Qube business at ports including the Harbour. He gave evidence about conduct at the Harbour in the period July to October 2021. He was not present at the Gate when the relevant events occurred on 24 August 2021, however, he gave evidence of events that immediately followed on that date and the following days. He gave evidence about his role in the events of 24 August 2021 and his conduct and events immediately after. I found him to be a witness who gave frank and forthright evidence.

    Mr Michael Rigoli

16. Mr Michael Rigoli worked at the Harbour during the period July to October 2021. He was engaged by Pivotal, on a casual basis, to perform work for Qube. Mr Rigoli only worked “a couple” of shifts at the Jetty. He gave evidence about entering the Jetty when he performed that work on an unknown date shortly before 24 August 2021. He believed the date was “around 22 August 2021” but accepted that he could not be sure. I generally accept the evidence of Mr Rigoli; however, its limited scope and lack of detail meant it did not greatly assist the Ombudsman’s case.

    Dr Anthony Mander

17. Dr Anthony Mander is a consultant psychiatrist. He was asked to prepare a medico-legal report as to the effects of the conduct at the Jetty on 24 August 2021 on Mr Coelho. Dr Mander was cooperative in his efforts to assist the Court. The attack on his report, and oral evidence, largely turned on whether the information given to him by Mr Coelho was consistent with previous statements made by Mr Coelho about the impacts of the events. Those matters are addressed under that section of these reasons dealing with compensation for Mr Coelho.

    ALLEGATIONS AND FINDINGS PRIOR TO 24 AUGUST 2021

18. Whilst the alleged contraventions of the Act concerned events on 24 August 2021, the Ombudsman relies on conduct before and after that time. She does so principally to establish the liability of the Union. She relies on at least the establishment of the picket, the media campaign that supported the picket, the conduct at the picket on days other than 24 August 2021, and the disbanding of the picket. In those circumstances it is necessary for me to describe and assess the events leading up to 24 August 2021.

    Events prior to 24 August 2021 – evidence and factual findings

    People and background to events prior to 24 August 2021

19. The Union admitted that from around 30 July to 15 October 2021, various people picketed the gates of Qube’s Fremantle operations, including the Gate at the Jetty. It admitted that “a number” of Qube employees were present at the Gate during this period. While the Ombudsman submits that a “substantial number” of the picketers were Qube employees, the evidence does not establish how many Qube employees attended the picket and when they did.

20. The most active officers of the Union described by the pleadings and evidence were: Mr William Tracey, the Divisional Branch Secretary of the Western Australian branch of the MUA Division of the Union and the State Assistant Secretary of the Western Australian branch of the Union; Mr Doug Heath, the State Joint Vice President of the Western Australian branch of the MUA Division of the Union and the Divisional Branch Presiding Officer (and Divisional Deputy Branch Secretary) of the Western Australian branch of the MUA Division of the Union; and Mr Paul Brett, an organiser of the Western Australian branch of the MUA Division of the Union. The Union admitted that each of Mr Tracey, Mr Heath and Mr Brett was an officer and employee of the Union acting within the scope of his actual or apparent authority for the purposes of s 793 of the Act and acting within his capacity as an officer for the Union for the purposes of s 363 of the Act. Whilst other officials of the Union were identified in the Ombudsman’s Amended Statement of Claim, they did not feature significantly in the evidence or submissions of the Ombudsman.

21. Mr Gill was employed by Qube from on or about 7 September 2007 until 7 December 2021. He was employed in the position of Operator Grade 4. There was no dispute that he was at the picket at the Gate on 24 August 2021. It was admitted that he was a member of the Union. It was denied that he was an agent of the Union. It was denied that he was acting in a representative role or capacity for the Union.

    Media campaign

22. The Ombudsman alleges, and the Union admits, that the Union engaged in a media campaign in relation to the bargaining on behalf of its members for a new enterprise agreement. There were no admissions as to the form of that campaign.

23. The Ombudsman alleges that the media campaign was constituted by social media, traditional media and posts to Union websites. That allegation is particularised by a schedule attached to the Amended Statement of Claim which sets out: (a) social media posts by accounts said to be operated by the Union and its officials; (b) media releases issued by the Union; (c) traditional media appearances by Union officials; and (d) posts to Union websites. Not all of the material referred to in the schedule was tendered in evidence. The Ombudsman tendered and relied upon the Facebook posts of the Union and one Newsletter from October 2021.

24. The Ombudsman relied on the media campaign as one of the circumstances establishing that the Union organised or engaged in the conduct on 24 August 2021. She relied on Mr Gill’s knowledge of some or all of the media campaign as a particular to the allegation that Mr Gill was acting as an agent for the Union on 24 August 2021.

25. The posts in the schedule date from 29 July 2021 to 31 August 2021. The Ombudsman in opening took the Court to posts made before the dispute (from 14 July 2021 to 22 July 2021), posts made during the period of the dispute, and a post made on 10 November 2021 after the dispute.

26. The posts pleaded either:

    (1)Complained about the lack of professional, safe and timely work practices as the result of the non-union labour working at the Harbour during the industrial action;

    (2)Provided updates about the status of the protected industrial action or attempted to rally donations for the striking workers or encouraged attendance at mass rallies on 13 August 2021 and 7 September 2021 or thanked those who attended those mass rallies; or

    (3)Were titled the “Pube Logistics Bedtime Stories”. This was a three-part narrative involving supposedly “fictionalised” characters on the picket.

27. All of these posts were made using the “Maritime Union of Australia – WA Branch” Facebook account. The Ombudsman submits that the “MUA should be able to moderate the chat”, meaning moderate the comments on the social media posts. However, there was no evidence about their ability to do so.

28. The Ombudsman relies on the social media campaign to say the Union “encourage[ed] the behaviour that ultimately occurred on 24 August 2021” as the social media campaign demonstrated “persistent denigration” and “dehumanisation of workers that were crossing the picket line, so they became fair game”. The Ombudsman also says that the social media posts discuss the attendance on the picket, which demonstrates that “the Union kn[ew] what’s going on, on the picket”.

29. The Ombudsman also relies upon what it submits were comments on some of the social media posts by Mr Chris Cain. The Union admitted that Mr Cain was the Divisional National Presiding Officer of the MUA Division at all relevant times. Mr Cain, or someone posting under his name, appears to have posted comments in response to social media posts made on 4 August 2021, 8 August 2021, 10 August 2021, 20 August 2021, 23 August 2021, 29 August 2021 and 2 September 2021.

30. The Ombudsman complains that the Union failed to moderate or control behaviour at the picket, including by its social media presence. She says that there is no evidence the Union sought to control the behaviour on the picket. She refers particularly to the use of the words “our picket” in one post and one document headed “offshore update” to demonstrate the Union’s control of the picket. She also relies upon the presence of the officials of the Union throughout the period of the picket. The Ombudsman also draws attention to a social media post in which the MUA stated: “we have 100% union membership with Qube in Fremantle”.

31. The final post of the “Bedtime Stories of Pube Logistics” series occurred on 24 August 2021. The Union continued the social media posts about the dispute until a new agreement was agreed. The “Qube members” endorsement of the proposed agreement was announced on the Union’s social media on 9 November 2021.

32. The social media posts did not include encouragement to engage in any particular type of unlawful conduct. However, the Ombudsman says that the: “nature of a picket during an industrial dispute is volatile. A picket can be fluid. At one moment it can be peaceful, at the next moment the mood can shift towards aggression, abuse, threatening behaviour and intimidation”. The evidence did not establish that a picket would inevitably, or often, lead to unlawful conduct. The Ombudsman seems to submit that I should infer such a thing; namely, that the Union did or should have understood that the picket would “shift towards aggression, abuse, threatening behaviour and intimidation”. It says the picket was consistently abusive, intimidatory and threatening in the lead up to 24 August 2021.

33. A picket is not necessarily unlawful. In Davids Distribution Pty Ltd v National Union of Workers [1999] FCA 1108, 91 FCR 463, the Full Court considered whether the employer had acted unlawfully in terminating employees for participating in protected industrial action and picketing. In doing so, Wilcox and Cooper JJ said at [69] (citing French J in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Laing (1998) 89 FCR 17 at 32), “picketing is unlawful only if it involves obstruction and besetting”.

34. The evidence of the conduct of the picket prior to 24 August 2021 was given by Mr Kranendonk, Mr Rigoli, Mr Copperthwaite and Mr Coelho. I address that evidence below and assess whether it is accurate to say that the picket “was consistently abusive, intimidatory and threatening in the lead up to 24 August 2021”. I return to the question of the Union’s control over the picket, including by social media, when addressing the Union’s liability for the picket.

    Mr Kranendonk’s evidence of events prior to 24 August 2021

35. During the period of protected industrial action, Mr Michael Kranendonk was Western Australian Manager of Qube. Mr Kranendonk’s role was to oversee Qube’s operations. Mr Kranendonk said that during the industrial action, he attended port locations 90% of the time. Mr Kranendonk gave evidence that when he would attend a Fremantle Port location where Qube was operating during the period of industrial action he would observe picketers at the entrance points.

36. Mr Kranendonk gave evidence about the conduct of the picketers. Mr Kranendonk said: “the number of picketers would range from around 15 to 30, on occasions with flags and banners”, and they would stand around “staring at people coming through the gates, holding their phones, videoing”. He said: “on occasions, there may have been 70 [picketers]”. He gave evidence that some of the picketers were “a little bit disgruntled”, although he added, “[I] can’t really say people were disgruntled towards me”. He said when other people were crossing the picket line, the picketers “would yell out, ‘Do you feel proud?’ I hope your mum and dad are proud of you’, that kind of banter”. Mr Kranendonk observed picketers, including Mr Doug Heath, videoing “people coming in and out of the gate”. He observed picketers walking up to truck drivers trying to enter the work site, “having a chat to the driver. And then the driver will turn around and go away”.

37. I accept the evidence of Mr Kranendonk. His evidence was frank and forthright. He made no effort to overstate or understate the events and circumstances that he witnessed. Mr Kranendonk’s evidence of “disgruntled” picketers “standing around” and engaging in “banter” was not consistent with the Ombudsman’s submissions that the picket was “consistently abusive, intimidatory and threatening”. Although, I accept that “videoing” has the potential to intimidate, but it was not explored in any detail as to how often or how this was done.

38. Mr Kranendonk also gave uncontested evidence about how often Union officials and Mr Gill were present at the picket. Mr Kranendonk’s evidence was that he would see:

    (1)Mr Tracey roughly 70% of the time on the picket line;

    (2)Mr Heath a little bit less than 70% of the time;

    (3)Mr Brett roughly 70% of the time on the picket line; and

    (4)Mr Gill 70% of the time on the picket line.

1. From that evidence it is unclear whether those people were there only at the start of each day, or whether they were there for part or the whole day. I expect, but it was unexplained, that Mr Kranendonk saw those officials on his entry rather than observed them throughout the day. Taking the evidence at its highest, Mr Tracey, Mr Brett and Mr Gill attended the picket at least 63% of the time (to account for the 10% of the time Mr Kranendonk did not attend port locations for work), and Mr Heath, “a little bit less”. However, that does not tell me how long those officials were present or what they witnessed. Taken together with Mr Kranendonk’s other evidence, that evidence does not enable me to conclude, as the Ombudsman urges, that these officials “must have been aware of” and “authorised, encouraged, participated in, and condoned” behaviour that was “consistently abusive, intimidatory and threatening”.

   Mr Rigoli’s evidence of events prior to 24 August 2021

2. Mr Rigoli worked on a casual basis for Pivotal to perform work for Qube during the period of the industrial action. It was not in dispute that Mr Rigoli worked “a couple of shifts” at the Jetty during the industrial action. Mr Rigoli gave evidence about entering the Jetty on one morning. There was a dispute about the date. Mr Rigoli believed it was 22 August 2021 but conceded it could have been another day.

3. Mr Rigoli gave evidence that he attended his shift at the Jetty on that day and as he arrived there were roughly 20 to 25 picketers at the Gate. Mr Rigoli said that he was called “a number of names”, including a “slag”, a “scab”, and a “thief”. He said that there was a “statement, that I was, obviously, stealing their work”. He said that there were “flags, and there was a banner”.

4. That was the extent of Mr Rigoli’s evidence. He gave no evidence about the manner in which the statements were made. He gave no evidence about the gestures or other behaviour of those that made the comments. He did not describe the events as abusive, threatening or intimidatory. He did not describe or name any persons present or any person that made the comments.

5. I am not satisfied that those events can be described as threatening. In any event they are evidence of one day. I accept that those words have the potential to be abusive or intimidatory, but without more evidence of the surrounding circumstances on those days and others, I do not accept those events described by Mr Rigoli demonstrate consistently abusive, intimidatory or threatening conduct.

   Mr Copperthwaite’s evidence of events prior to 24 August 2021

6. Mr Copperthwaite gave evidence that between 30 July 2021 and 23 August 2021, when he arrived at work, picketers would say to him that he was a “scab”, “bottom feeder”, a “dog”, people would say “check your moral compass” and there was a lot of “name-calling”, “video recording with phones” and “pictures taken” as well as calling out Mr Copperthwaite’s brother’s name and calling his brother “the same sort of names: scab, bottom feeder, dog”. He gave evidence that there would be no less than 10 picketers present at any given time, and that there could be up to 40 or 50 picketers.

7. Mr Copperthwaite gave only limited evidence about the manner in which the statements were made (prior to 24 August 2021). He gave evidence that picketers called him names through the window of his car. He stated to Inspector Tonev that he was initially intimidated by the picketers’ behaviour but “overtime almost became immune to the constant behaviour”. He otherwise did not describe the events as abusive, threatening or intimidatory. He also did not describe or name any persons present or any person who made the comments. The only evidence of any incident reported by Mr Copperthwaite was with respect to 24 August 2021. I accept that the circumstances prior to 24 August 2021 would be unpleasant for Mr Copperthwaite, and while I place some weight on his evidence that he was “initially” intimidated by the picketers’ behaviour, without more evidence of the surrounding circumstances on those days, I am not able to accept those events were “consistently abusive, threatening or intimidatory”.

   Mr Coelho’s evidence of events prior to 24 August 2021

8. Mr Coelho’s evidence about events prior to 24 August 2021 was different to the other witnesses. The respondents submit that Mr Coelho’s evidence was generally unreliable and Mr Coelho lacked any credibility. They say that his evidence should be rejected. Other than this general complaint, there was no specific challenge to Mr Coelho’s account of his experience at the picket line between 30 July 2021 and 23 August 2021.

9. Mr Coelho said that when he arrived at the Gate, picketers would call him a “dog”, a “scab” and a “wanker”. Mr Coelho also said the picketers said that “they knew where [he] lived” and that they “were coming to get” him, and “go back to where you come from” and that he was a “Portuguese cunt”. Mr Coelho said that the picketers held MUA flags and the cars sometimes, it is unclear how often, would have aerial flags and union stickers on them. Mr Coelho also gave evidence that once or twice a week “some bloke” would put his thumb across his throat as if he was going to cut Mr Coelho’s throat. There was no evidence about who made these remarks and gestures and the dates on which they occurred.

10. I put the “I know where you live”, “coming to get [him]”, and “throat cutting gesture” allegations in a different category to the other evidence of Mr Coelho and the evidence of Messrs Kranendonk, Rigoli and Copperthwaite. They are more serious and of themselves are intimidatory and threatening.

11. As I say above, I found Mr Coelho to be a combative witness who appeared to exaggerate some aspects of his evidence. However, I accept his evidence where it accords with written accounts of the events or video footage of the events or where it accords with Mr Copperthwaite’s or other witnesses’ accounts. Whilst I accept that the comments and gestures described by Mr Coelho were of a more serious nature, I have endeavoured to weigh that evidence together with the evidence of the other witnesses at the picket prior to 24 August 2021.

    Findings and conclusions about events prior to 24 August 2021

12. I weigh the evidence of Messrs Kranendonk, Rigoli, Copperthwaite and Coelho together. On balance, I do not find that the picket prior to 24 August 2021 was consistently abusive, intimidatory and threatening. I am also not satisfied that the evidence establishes the awareness by the Union officials present of any consistently abusive, intimidatory or threatening conduct. I come to that conclusion because I am not satisfied that the conduct at the picket was consistently of that nature, and because the Ombudsman has not established with any certainty the days and periods on which the officials were present and what occurred at the times on which they were.

    ALLEGATIONS AND FINDINGS – GILL 24 AUGUST 2021 ACTION

13. The relevant conduct on 24 August 2021 at the Gate of the Jetty is set out in Part D1 of the Amended Statement of Claim and defined by the Ombudsman as the 24 August 2021 Actions. It is also alleged that Mr Gill participated in all of those actions, and Mr Gill’s conduct is defined in the Amended Statement of Claim as “the Gill 24 August 2021 Action”. However, the Ombudsman conceded on the first day of the hearing that Mr Gill’s impugned conduct was limited to that conduct described at [70(a)-(c)] of the Amended Statement of Claim. I shall treat that more limited approach to the conduct of Mr Gill as the Gill 24 August 2021 Action. I deal first with that conduct and the alleged contraventions said to arise from that conduct.

    Factual allegations regarding the Gill 24 August 2021 Action

14. First, the Ombudsman says upon Mr Copperthwaite’s arrival at the Gate, the picketers, including Mr Gill, made barking sounds at Mr Copperthwaite and Mr Coelho. The Ombudsman also says that the picketers, including Mr Gill, yelled at both Mr Copperthwaite and Mr Coelho calling them “scabs” and “dogs” and saying “I know where you live”.

15. Second, the Ombudsman says that while Mr Copperthwaite was escorting Mr Coelho through the Gate, Mr Gill came within 30 centimetres of Mr Copperthwaite and said to him: “you’ll end up dead dog if you keep going like this”. By “keep going like this”, the Ombudsman says Mr Gill meant not taking part in and supporting the picket and/or not taking part in the protected industrial action.

    Factual findings – Gill 24 August 2021 Action

16. I have assessed the Gill 24 August 2021 Action by reference to:

    (1)The evidence of Mr Copperthwaite;

    (2)The evidence of Mr Coelho;

    (3)The evidence of Mr Kranendonk;

    (4)The available documentary evidence;

    (5)The video footage from inside the Gate (“Cam[era] 740 (KBJ Main Gate)”) and the video footage from outside the Gate (“Cam[era] 711 (KBJ Entry Mid Low)”); and

    (6)The concession from Mr Gill’s counsel that Mr Gill was present and did speak with Mr Copperthwaite at the Gate on the morning of 24 August 2021.

17. I make the following factual findings.

    Events immediately before Mr Gill’s threat

18. The closed circuit television (CCTV) footage from inside the Gate records that Mr Coelho arrived by car near the entrance of the Gate at 5:41 am on 24 August 2021. He pulled over on the left of the entrance road some way before the Gate and before where people were standing on the right hand side of the Gate. That is consistent with Mr Coelho’s evidence and is shown on the video taken from inside the Gate.

19. Mr Coelho and Mr Copperthwaite had previously arranged that Mr Copperthwaite would escort Mr Coelho through the Gate. That arrangement was necessary because Mr Coelho did not yet have his Maritime Security Identification Card. Whilst there was no evidence about the details of that arrangement or when and how it was reached, the existence of the arrangement is consistent with the evidence of both Mr Coelho and Mr Copperthwaite.

20. At around 5:53 am, Mr Copperthwaite walked towards the Gate from the inside. When Mr Coelho saw Mr Copperthwaite, Mr Coelho drove his car from his parking position (on the left of the road and back from the Gate) towards the front of the Gate.

21. As Mr Copperthwaite approached the Gate (from the inside) the picketers moved their position. Mr Gill moved across the Gate and to the left of the Gate (as viewed from the outside). Mr Gill then moved back towards the centre of the Gate and near the communications box on the outside of the Gate. The communications box is an unmanned electronic box that allows security staff to see and speak with people at the box. There is a communications box outside the Gate for those entering, and inside the Gate for those exiting.

22. Mr Copperthwaite went through the pedestrian turnstile at the Gate, from inside the Gate to outside the Gate. The pedestrian turnstile is in the centre of the gate and near the communications box for those entering the Gate. Mr Coelho’s vehicle was now at the Gate approximately two to three metres from Mr Copperthwaite and near the communications box.

23. Mr Copperthwaite then spoke to security through the communications box outside the Gate.  

24. Some of the people present, including Mr Gill, were standing near Mr Copperthwaite. Mr Coelho remained inside his car, still approximately two to three metres from Mr Copperthwaite.

25. I will return to the CCTV footage when I discuss the direction and distance of Mr Gill and Mr Copperthwaite below.

    Mr Gill’s threat

26. Mr Copperthwaite gave the following account in his evidence in chief of what the Ombudsman said was the threat made by Mr Gill to Mr Copperthwaite:

    Did anything occur whilst you were at the communication box?---Yes. Yes.

    What happened?---I had one of the members approach me and it was – he didn’t like me being out there and told me that, “You will end up dead dog, if you keep going like this”.

    Had you seen that person before?---Yes.

    In what circumstances had you seen that person before?---I had worked with that person previously. A couple of times.

    Roughly over what period would you have done that?---Over three or four months.

    In what year?---It was the same year.

    And did you know that person’s name?---I didn’t know his full name, as a lot of people there go by nicknames. But I knew the nickname that he was going by.

    And what was his nickname?---Gilly.

    When that statement was made to you, how close was that person to you?---He was within a foot from my face.

    Did you – what type of view did you have of him?---There was a clear view because there was a light right behind my head coming from the communications box at the time.

    The person you know as Gilly – how long did he stay near you?---He was probably in my presence for the majority of the time I was outside the gate. He was only directly in my face to say a few – so a few minutes.

    …

    Around the same time, people were yelling – yelling you should think about your – Charmaine and the kids – Charmaine being my partner, so I was very fearful of, you know, what could happen to them.

    Did anyone else – was that comment about Charmaine – was that done by Gilly or someone else?---No. That was – I don’t know who that was done by. It was just from the crowd.

    Did you receive any other threats whilst at the communication?---Yes. I – I remember a voice from behind me saying that I will kill you.

27. Mr Copperthwaite then informed Mr Kranendonk about the incident on the same day. Mr Copperthwaite gave evidence that he “got a hold of Michael Kranendonk and told him what happened … I told him that I had to go out front of the gate to escort Luis in because he was having issues getting in and that I was threatened”. Mr Kranendonk described this conversation in terms of him receiving a telephone call from Mr Copperthwaite that morning in which Mr Copperthwaite said that he: “got threatened to be killed with a hand gesture of a gun. And his family is in strife, jeopardy. ‘We know where you live’”.

28. Mr Kranendonk said that he told Mr Copperthwaite that he needed to report the incident to the police and write a statement about what occurred. Mr Copperthwaite’s statement dated 24 August 2021 provided:

    TUES

    24/8/2021

    THEY TOLD ME THAT I IF CONTINUED DOING WHAT

    I WAS DOING THAT “I WOULD END UP BEING KILLED.”

    THEN ONE WHISPERED “I’LL KILL YA”

    THEY THEN CONTINUED TO TELL ME TO THINK ABOUT WHAT

    THIS MIGHT DO TO MY FAMILY.

    ONE MAN ALSO THREATENED LOUIS BY MAKING A GUN

    HAND GESTURE.

    AS I WENT TO WALK BACK THROUGH THE

    GATE SOMEONE MENTIONED CHARMAINE AND MY KIDS.

29. Mr Copperthwaite and Mr Kranendonk attended the Kwinana Police station on 24 August 2021. An incident report recorded that Mr Copperthwaite reported to police: “threatening remarks that have been made to him by another employee of Qube … the words indicated that he would be killed and another shouted ‘I’ll kill ya’”. Mr Kranendonk informed the police that Qube would “deal with this internally as bullying at work when they iddentify (sic) who it is that has made the threatening remarks”. The incident report also recorded that “the comments which relate to the threats were vague and not direct and from description are off the cuff remarks made against someone who is not standing with them on the picket line”.

30. On 24 August 2021, Mr Kranendonk requested and received a copy of the CCTV footage of the incident. Mr Kranendonk identified Mr Gill on the footage and created a still image where Mr Gill was visible. It appears that Mr Kranendonk identified Mr Gill due to Mr Copperthwaite’s description of Mr Gill’s “bush jacket” or “chequered jacket”. The next day, on 25 August 2021, Mr Kranendonk presented that image to Mr Copperthwaite and asked: “is this the guy that was in your face threatening you?”. Mr Copperthwaite said words to the effect of “yes, that’s him” or “that’s the guy that was standing in front of me that I said would end up like a dead dog if I kept going the way I was going”.

31. On 5 November 2021, Qube sent Mr Gill a letter inviting him to respond to particular allegations in writing. These allegations included “verbally threatening Mr Christopher Mr Copperthwaite and Mr Luis Coelho” and saying words to the effect of “threatening to kill Mr Copperthwaite and Mr Coelho”.

32. Mr Copperthwaite was interviewed by Inspector Tonev on 24 February 2022. Relevantly, Inspector Tonev recorded Mr Copperthwaite as saying to him:

    They started yelling scab, dog and the man I now know to be Jason Gill said “You’ll end up dead dog if you keep going like this”

    …

    They started yelling “MUA, here to stay” over and over.

    Someone I couldn’t identify said “While your (sic) doing this you should be think about Charmaine and the kids”

    …

    One guy with a ski mask on, (dark clothes) pointed his hand in a gun gesture Louis (sic) and then me.

33. On 24 May 2024, the Ombudsman filed an amended outline of the evidence to be given by Mr Copperthwaite. On 29 June 2024, the Ombudsman filed a further amended outline of Mr Copperthwaite. The further amended outline was admitted into evidence. It relevantly provided:

    13. The picketers started barking like a dog at Mr Copperthwaite as he approached and entered the gate. The picketers started yelling and calling him names such as "scab" and "dog".

    14. A Qube employee, who Mr Copperthwaite later discovered was Jason Gill, was standing approximately 30 cm away from Mr Copperthwaite. Mr Gill said to Mr Copperthwaite words to the effect of "you'll end up dead dog if you keep going like this". By "this" Mr Copperthwaite believed Mr Gill meant if he continued working through the industrial action.

    15. Mr Copperthwaite also heard other picketers say to him words to the effect of "you'll end up being killed". One picketer whispered to him "I'll kill ya".

    16. The picketers then started yelling and chanting the words "MUA, here to stay”.

    17. One of the picketers said words to the effect of "while you're doing this you should be thinking about Charmaine and the kids". This made Mr Copperthwaite feel very mad and upset as they were referring to his family.

    18. After this comment was made, Mr Coelho started to call out to the picketers, as if to draw attention away from Mr Copperthwaite. At this time, Mr Coelho was sitting in his Ute which was approximately two metres away from Mr Copperthwaite. The picketers said to Mr Coelho "shut up".

    19. One man who was wearing dark clothes and what appeared to be tinted sunglasses, used his hand to form a gun gesture and pointed it at Mr Coelho. The man was tall and skinny. He was wearing a black hoodie and black pants and shoes. The man then pointed the "gun" at Mr Copperthwaite. Mr Copperthwaite felt intimidated and his heart was racing.

    20. A truck then pulled up behind Mr Coelho. Mr Copperthwaite asked Mr Coelho to park his Ute off to the side so that the truck could get through. As this occurred, the security guard spoke through the communication box to advise that they had found Mr Coelho on the list. Mr Coelho then drove through the gate.

    21. Shortly after the incident occurred, Mr Copperthwaite was asked by Qube to write a statement of the events that occurred.

    21A. On a couple of occasions, Mr Copperthwaite had previously worked with the person who had made the threat that "you'll end up a dead dog if you keep going like this". Mr Copperthwaite did not know his name, but only his nickname, which was "Gilly". He believes that on the next day, being 25 August 2021, he was shown by Michael Kranendonk in Mr Kranendonk's office a screenshot from the CCTV footage of 24 August 2021. Mr Copperthwaite confirmed to Mr Kranendonk that the person identified in the screenshot was the person that made that threat. Mr Kranendonk advised Mr Copperthwaite that that person’s name was Jason Gill.

    22. Mr Copperthwaite was later shown CCTV footage of the events by Qube and pointed to the individual on the CCTV footage who had said to him: "you'll end up dead dog if you keep going like this". Mr Copperthwaite again identified Jason Gill as the individual on the CCTV footage.

    (Original emphasis.)

1. A number of matters arise about the accounts of the threat given by Mr Copperthwaite:

   (1)What was the direction and distance of Mr Gill and Mr Copperthwaite when Mr Gill made the alleged statements;

   (2)Whether there were inconsistent accounts of the threat made by Mr Gill between the accounts in Mr Copperthwaite’s statement, the police incident report, and Qube’s allegation letter of 5 November 2021;

   (3)Whether Mr Copperthwaite knew Mr Gill on and prior to 24 August 2021, and if so, why he did not say so until shortly before the hearing;

   (4)Whether the cross-examination of Mr Copperthwaite, by Mr Gill’s counsel, constituted an admission that Mr Gill and Mr Copperthwaite spoke at the Gate on the morning of 24 August 2021; and

   (5)The reliability of Mr Copperthwaite’s identification of Mr Gill as the person that made the threat.

2. A further matter that arises is the Ombudsman’s submission as to the lack of any contradicting evidence and any available inferences.

   What was the direction and distance of Mr Gill and Mr Copperthwaite?

3. The evidence in chief of Mr Copperthwaite was that the direction and distance during the exchange between him and the person whom he said he knew by the nickname Gilly, was as follows:

   (1)When the dead dog statement was made “he [Gilly] was within a foot from my face”, or approximately 30 centimetres;

   (2)He had a clear view [of Gilly] because “there was a light right behind my head coming from the communications box at the time”;

   (3)Gilly was “in my presence for the majority of the time I was outside the gate. He was only directly in my face [for]… a few minutes”;

   (4)Outside the period in which Gilly was said to be in his face, Gilly “was within a couple of metres” of Mr Copperthwaite;

   (5)Overall, the period Gilly was “in [his] presence”, “that period of in your face and a couple of metres” was “the whole time I was out of the gate”.

4. In Mr Copperthwaite’s amended and further amended outline of evidence, he said Mr Gill “was standing approximately 30 cm away from Mr Copperthwaite”. In the note of the conversation made with Inspector Tonev, he is recorded as having said: “Gill was standing less than 30 cm away from me”.

5. In cross-examination, Mr Copperthwaite confirmed that Mr Gill was “standing 30 centimetres away from me”. He also agreed with the proposition that he and Mr Gill were “face to face”, although the words “face to face” were not initially used by Mr Copperthwaite in that exchange, nor were they used in his evidence in chief.

6. As set out above, Mr Gill did not give evidence. Mr Gill submits that Mr Copperthwaite’s account of standing face to face with Mr Gill for a few minutes is denied by the CCTV footage. Mr Gill submits that he is likely to have been directly behind or perhaps slightly to the side of Mr Copperthwaite during the relevant period. Mr Gill submits that the CCTV shows that he was certainly not face to face with Mr Copperthwaite for a few minutes.

7. Mr Coelho did not give evidence about where Mr Gill was standing relative to Mr Copperthwaite.

   The CCTV footage of Mr Gill and Mr Copperthwaite

8. As set out above, there was in evidence CCTV footage of the period in which it is alleged that Mr Gill threatened Mr Copperthwaite. That was CCTV video footage from inside the Gate and from a camera attached to a building (camera 740) and CCTV video footage from outside the Gate and from a camera attached to the communications box (camera 711). Both parties relied upon the CCTV footage from both cameras. There was no dispute that the person in the CCTV footage wearing shorts, thongs, a cap and a hooded checked jacket with the hood on was Mr Gill.

9. I am satisfied that the CCTV video footage is consistent with the evidence of Mr Copperthwaite about the direction and distance between him and Mr Gill as discussed above. That is, I am satisfied that Mr Copperthwaite and Mr Gill were approximately 30 centimetres apart and that Mr Gill was “in” Mr Copperthwaite’s face for a few minutes. The CCTV footage relevantly shows:

   (1)At approximately 5:53:20 am, Mr Gill separates from the crowd and begins to approach the Gate (see camera 740). At approximately 5:53:33 am, Mr Copperthwaite becomes visible on camera 740. At approximately 5:53:34 am, Mr Gill becomes visible on camera 711. At approximately 5:53:47 am, Mr Gill walks towards the Gate and towards Mr Copperthwaite (see camera 740). At approximately 5:53:52 am, Mr Gill walks past camera 711.

   (2)At approximately 5:53:56 am, Mr Copperthwaite exits the Gate by the pedestrian turnstile (camera 740).

   (3)Between approximately 5:54:10 am and 5:55:20 am, Mr Gill and Mr Copperthwaite can be seen standing close to each other whilst Mr Copperthwaite is standing in front of the communications box. Mr Gill is recognisable (on camera 740) from his feet (in thongs) and his head (with cap and hood). The video quality does not definitively show that Mr Copperthwaite and Mr Gill’s heads are facing each other. However, there are periods within that time where Mr Gill’s head and Mr Copperthwaite’s head are close. By close, I mean what appears to be 30-60 centimetres. This estimated distance is also indicated by the proximity of Mr Gill’s feet to where Mr Copperthwaite is standing (visible on camera 740). Mr Gill’s feet appear to be pointed towards Mr Copperthwaite. The footage on camera 711 at 5:54:11 am also shows Mr Copperthwaite turning his vision in the direction to where Mr Gill was standing.  

   (4)From approximately 5:55:24 am, Mr Gill appears to walk away from Mr Copperthwaite and goes out of view (on camera 740). Mr Gill returns to view (on camera 740) at 5:58:11 am.

   (5)Between approximately 5:58:29 am and 6:00:52 am, Mr Gill and Mr Copperthwaite can again be seen standing close to each other. Again, Mr Gill is recognisable (on camera 740) from his feet (in thongs) and his head (with cap and hood). There are periods within that time where Mr Gill’s head and Mr Copperthwaite’s head are close. Again, by close I mean approximately 30-60 centimetres. The positioning of their bodies is consistent with them facing each other.

10. Consequently, I consider that Mr Gill and Mr Copperthwaite are close together for a period of approximately three minutes. I am satisfied on the balance of probabilities that there were periods during that time that Mr Gill and Mr Copperthwaite would have been facing each other.

    Were there inconsistencies in the contemporaneous (and near contemporaneous) accounts?

11. Mr Gill submits that the allegation that the words “dead dog” were used is undermined by contemporaneous (and near contemporaneous) accounts of the events. Mr Gill’s submissions point to, first, the handwritten note by Mr Copperthwaite on 24 August 2021; second, the statement made by Mr Copperthwaite on the day to the police; and third, Qube’s letter of allegations sent to Mr Gill dated 5 November 2021. None of those documents identify that the words “dead dog” were used by Mr Gill, or anyone else. Mr Gill’s submissions draw attention to Mr Copperthwaite accepting in cross-examination that if he had been called a dead dog he would have been absolutely sure to note this fact. Mr Gill submits that the only logical explanation for these documents not referencing the dead dog statement is that the words were not said.

12. The phrase “dead dog” first appears in written evidence six months after the incident in Inspector Tonev’s note dated 24 February 2022. The statement provides that: “the man I now know to be Jason Gill said, ‘You’ll end up dead dog if you keep going like this’”. Similar words were used in Mr Copperthwaite’s tendered outline of evidence and the subsequent amendments to that document. Mr Copperthwaite also gave evidence in cross-examination that on 25 August 2021 he said to Mr Kranendonk, when he identified Mr Gill in the photograph shown to him, “that’s the guy that was standing in front of me that I said (sic) would end up like a dead dog if I kept going the way I was going”.

13. I am satisfied that there are no fundamental inconsistencies in the contemporaneous (and near contemporaneous) accounts identified in Mr Gill’s submissions which preclude me from accepting that Mr Gill said the dead dog statement to Mr Copperthwaite.

14. The handwritten note of 24 August 2021 contains a threat that: “they told me that if I continued doing what I was doing that ‘I would end up being killed’”. In cross-examination, when asked why he did not mention the dead dog statement in the note, Mr Copperthwaite said: “There was a lot happening at the time”. Mr Copperthwaite gave evidence in examination in chief that the circumstances of him making the statement were to “just [to] put it on record that that happened”. Given these circumstances, I approach Mr Copperthwaite’s handwritten note of 24 August 2021 as not a comprehensive account of all of the events of that morning, but rather that it recorded the significant events without the detail. The note is very short. The relevant significant event is that a threat was made that he would be killed. The nature of the threat that “if I continued doing what I was doing that I would end up being killed” is substantially the same as “You’ll end up a dead dog if you keep going like this”. In my view, the fact that the dead dog statement was not referenced in the note does not mean that the words were not said on 24 August 2021. I accept the Ombudsman’s submission that the fact that specific details are missing from the note does not necessarily indicate that the events did not happen.

15. The account recorded by the Kwinana Police station is also consistent with the threat as alleged having been made. It notes: “the words [said to Mr Copperthwaite] indicated that he would be killed”. As with the handwritten note, this is consistent with the dead dog statement having been made, but again appears to record the significant events without some of the detail. It is not inconsistent with the detail later provided to Inspector Tonev, nor is it inconsistent with Mr Copperthwaite identifying Mr Gill by photograph on 25 August 2021 and saying to Mr Kranendonk: “that’s the guy that was standing in front of me that I said would end up like a dead dog if I kept going the way I was going”.

16. The 5 November 2021 allegations letter includes allegations that Mr Gill “verbally threatened” Mr Copperthwaite, including that he threatened to kill Mr Copperthwaite, and that Mr Gill called Mr Copperthwaite “abusive and insulting names”. Mr Gill submits that an “overwhelming inference” is that Qube made these allegations because of Mr Copperthwaite’s note and his conversations with Mr Kranendonk after the incident. In cross-examination, Mr Kranendonk agreed that Qube’s practice is to put allegations of serious misconduct precisely, and that fairness requires that the allegations are put as precisely as one can based on the best information and evidence the company has at the time. I understand this line of questioning to have been directed at why the words “dead dog” were not included in the allegations letter. However, I am not satisfied that the absence of the words “dead dog” from the letter means that Mr Gill did not say the words on 24 August 2021.

17. First, Mr Kranendonk’s evidence is somewhat weakened by the fact that he stated a number of times during cross-examination that he was not involved in the investigation against Mr Gill, and that he did not know what the outcome was or how the decision was made. When asked: “Can we take it that whatever allegations were put to him [Mr Gill] are likely to have been precise?”, Mr Kranendonk said: “You would have to ask the person that was investigating that question”, being Dan Coulton. Taken at its highest, Mr Kranendonk’s evidence on this issue only goes to his understanding of what Qube’s regular processes are for serious misconduct allegations and investigations.

18. Second, I am not satisfied that the relevant allegations in the letter are imprecisely put. While the letter does not specify the exact “abusive and insulting” names Mr Gill allegedly called Mr Copperthwaite and Mr Coelho, it clearly alleges that Mr Gill threatened to kill Mr Copperthwaite and Mr Coelho, that he threatened Mr Copperthwaite’s family, and that he threatened Mr Coelho by making a hand gesture in the shape of a gun towards him. I do not consider that the level of detail in the allegations casts sufficient doubt on whether Mr Gill made the dead dog statement on 24 August 2021.

19. Third, and most critically, the allegation in the letter that Mr Gill threatened to kill Mr Copperthwaite is consistent with, and is a threat of the same nature as, Mr Gill making the dead dog statement.  

20. I therefore find that there are no fundamental inconsistencies in the words used in Mr Copperthwaite’s 24 August 2021 handwritten note, the statement to the police, and the 5 November 2021 allegations letter which would preclude me from accepting that Mr Gill said the dead dog statement to Mr Copperthwaite as pleaded.

    Did Mr Copperthwaite know Mr Gill?

21. On 29 June 2024, the Ombudsman filed a further amended outline of evidence which included for the first time that:

    On a couple of occasions, Mr Copperthwaite had previously worked with the person who had made the threat that "you'll end up a dead dog if you keep going like this". Mr Copperthwaite did not know his name, but only his nickname, which was "Gilly".

22. Mr Copperthwaite conceded in cross-examination that he had spoken to lawyers about the case five times but the first time that he said to an inspector or a lawyer that he knew Mr Gill was on the same day the further amended outline of evidence was filed, being 29 June 2024. Mr Copperthwaite stated in examination in chief that he “didn’t know his [Mr Gill’s] full name, as a lot of people there go by nicknames. But I knew the nickname that he was going by [Gilly]”.

23. The Union submits that Mr Copperthwaite did not know Mr Gill. The Union rely on the following earlier statements of Mr Copperthwaite:

    (1)the police incident report which states that: “[f]rom Michael Kronendonk (sic) his manager they are to deal with this internally as bullying at work when they identify who it is that has made the threatening remarks” (emphasis added). Mr Gill submits that at the police station, Mr Copperthwaite and Mr Kranendonk failed to identify Mr Gill and positively asserted the perpetrator was unknown;

    (2)Mr Copperthwaite’s statement to Inspector Tonev which referred to “the man I now know to be Jason Gill”;

    (3)Mr Copperthwaite’s first and second outlines of evidence, which referred to “a Qube employee who Mr Copperthwaite later discovered was Jason Gill” and indicated that he pointed to a person on CCTV who “was identified by Michael Kranendonk to be Jason Gill”; and

    (4)Mr Copperthwaite’s evidence that Mr Kranendonk asked, while showing him the photograph of Mr Gill: “Is this the guy that was in your face threatening you?”, which suggests that he did not mention Mr Gill’s name or nickname during his report to Mr Kranendonk.

24. Mr Copperthwaite conceded in cross-examination that there was no reason he would not have told Inspector Tonev that he knew the person as “Gilly”. Mr Copperthwaite also agreed that it “beggars belief” that he did not tell Inspector Tonev.

25. There was evidence before me regarding whether Mr Copperthwaite and Mr Gill worked together. This fact is relevant to the likelihood that Mr Copperthwaite knew Mr Gill. Mr Copperthwaite said in examination in chief that he had worked with Mr Gill “a couple of times” over “three or four months” in 2021. Mr Kranendonk said in examination in chief that it was “highly probable” that Mr Copperthwaite and Mr Gill would have worked shifts together in 2021 prior to the industrial action starting. However, the parties subsequently agreed as a fact (for the purposes of s 191 of the Evidence Act 1995 (Cth)) that no Qube allocation sheets for the period 1 January 2021 to 31 July 2021 inclusive identify that Mr Gill and Mr Copperthwaite worked on the same gang, but that there is one allocation sheet for 1 July 2021 which records that Mr Gill and Mr Copperthwaite worked at the same time on different gangs at the same berth. I accept this fact.

26. I have also had regard to the allocation sheet for 1 July 2021 which records that there were 11 employees in Mr Copperthwaite’s gang on that day, and 17 employees in Mr Gill’s gang. I accept Mr Kranendonk’s evidence given in re-examination that the two gangs working on that day were on the same port, and shared the same smoke room and shared “the same place where everybody meets in the morning”.

27. As to the likelihood that Mr Copperthwaite knew Mr Gill from other interactions at Qube, I have had regard to Mr Kranendonk’s examination in chief where Mr Kranendonk said he would see Mr Gill at the picket 70% of the time. I have had regard to Mr Copperthwaite’s evidence given in examination in chief that the picket numbers would be no less than 10 people at any given time, and could be up to 40 or 50 people. I accept that Mr Copperthwaite would have passed through the picket line for work each morning.

28. I have also had regard to the amount of time Mr Gill and Mr Copperthwaite’s employment at Qube would have overlapped. The Union has stated that Mr Gill was employed by Qube from on or about 7 September 2007 to 7 December 2021. A record of Mr Gill’s work hours between 1 January 2021 and 31 July 2021 has also been tendered. In cross-examination, Mr Copperthwaite agreed that he started working for Qube in March 2021 as a stevedore and was promoted to the position of shift manager in June 2021. This means that there was a period of approximately five months, depending on the exact date Mr Copperthwaite started working at Qube, in which Mr Copperthwaite’s and Mr Gill’s employment overlapped prior to the events on 24 August 2021.

29. The parties accept that at all relevant times Qube employed around 139 employees who were eligible to become members of the Union (and many of whom were in fact members of the Union). There was no evidence given about whether there were additional people working at Qube during the industrial action beyond these 139 employees.

30. Having regard to all the evidence, I consider on the balance of probabilities that Mr Copperthwaite did know Mr Gill generally, and well enough to know of his appearance and nickname, even if he did not know his full name or otherwise much about him. I accept that he would have at least seen Mr Gill a number of times during their overlapping employment at Qube and during that time learned his nickname. In my view, given that he only knew Mr Gill by nickname, it is plausible that he would not have identified “Gilly” in his handwritten note or to the police, and that the reference in the police report to “when they identify who it is that has made the threatening remarks” could mean to identify the person who made the statement with more precision.

31. I therefore consider that the passage of the further amended outline of evidence excerpted at [100100] is correct, save that Mr Copperthwaite had only worked on the same berth as Mr Gill once and they had not worked together “[o]n a couple of occasions”.

    Was there an admission by Mr Gill that he spoke to Mr Copperthwaite?

32. The Ombudsman submits that Mr Gill’s counsel putting to Mr Copperthwaite in cross-examination that a different and more benign conversation had occurred between Mr Gill and Mr Copperthwaite on 24 August 2021 amounted to an admission that Mr Gill spoke with Mr Copperthwaite on that day.

33. The Ombudsman relied on Palavi v Queensland Newspapers Pty Ltd [2011] NSWSC 274 at [27], where Nicholas J determined that admissions made by counsel for the plaintiff, which, doubtlessly took into account forensic considerations, bound the plaintiff and the defendants were entitled to proceed on the basis that those matters were not in issue. The relevant circumstances in Palavi did not involve questions put in cross-examination. However, and in any event, counsel for Mr Gill conceded that it was his client’s case that: first, Mr Gill was at the picket on 24 August 2021; second, things were said between Mr Gill and Mr Copperthwaite, but that, third, his client did not make the threat alleged. Counsel for Mr Gill accepted that the questions he put to Mr Copperthwaite were on instructions from Mr Gill.

1. As explained above, the Ombudsman alleges, in respect of each of ss 343, 348 and 346, that the Union is liable because “as a matter of statutory construction, where the [Union] organised the picket, it should be held to have directly contravened ss 343, 348 and 346” (original emphasis). The Ombudsman said further that the Union’s social media campaign demonstrated that the Union “kn[ew] what was going on, on the picket”.

2. That was consistent with the Ombudsman’s oral opening in which she submitted that: “the conduct from 24 August is organised or taken by the Union. Our primary case is a direct liability case that the Union set up the picket … that conduct becomes – they own that conduct, it becomes their own conduct”. As discussed at [310], the Ombudsman could not identify “direct authority” for this proposition, and I am not aware of any such authority.

3. At [308]-[317], I discussed what is required for a Union to be directly or primarily liable under the common law. Relevantly, the authorities emphasise that the person(s) alleged to have contravened the relevant law must have been acting as the “directing mind and will” of the Union when engaging in the contravening conduct (pursuant to Hanley); or, applying Meridian, acting in an official capacity as the Union under its rules.

4. Apart from the conduct alleged to have been done by Mr Gill (at [70(a) and (b)] of the Amended Statement of Claim), the identity of the individuals engaging in the conduct is not known. There is no evidence of any connection between the specific alleged conduct undertaken by the picketers and the Union. The Ombudsman does not allege that the unknown picketers were the "directing mind and will" of the Union. Applying Meridian, it is also difficult to see how the unknown picketers could be acting in an official capacity as the Union under its rules.

5. The contraventions of each of ss 343, 346 and 348 requires taking or organising by a “person”. Given the lack of evidence of the identity of those who undertook the (non-Gill) 24 August 2021 Actions, or their connection with the Union or any authorisation under the Union’s rules, it cannot be established that the “person” who “took” or “organised” the conduct was the Union.

   Allegations of contraventions – other events on 24 August 2021

6. The Ombudsman alleges that the (non-Gill) 24 August 2021 Action leads to the following contraventions of the Act by the Union.

7. First, she alleges that the conduct by the unknown picketers on 24 August 2021 was taken or organised by the Union with the intent to coerce Mr Copperthwaite to engage in industrial activity, in breach of s 348 of the Act.

8. Second, she alleges that the conduct by the unknown picketers on 24 August 2021 was taken or organised by the Union with the intent to coerce Mr Coelho to engage in industrial activity, in breach of s 348 of the Act.

9. Third, she alleges that the conduct by the unknown picketers on 24 August 2021 was taken or organised by the Union with the intent to negate the choice of Qube to agree to the proposed enterprise agreement sought by the Union, in breach of ss 343 and 348 of the Act.

10. Fourth, she alleges that the Union took, or organised the unknown picketers to take, adverse action against Mr Copperthwaite because he had not engaged in or proposed not to engage in industrial activity, in breach of s 346 of the Act. The adverse action is alleged to be the unknown picketers’ conduct on 24 August 2021 which is said to have had the effect of prejudicing Mr Copperthwaite in his employment.

11. Fifth, she alleges that the Union took, or organised the unknown picketers to take, adverse action against Mr Coelho because he had not engaged in or proposed not to engage in industrial activity, in breach of s 346 of the Act. Again, the adverse action is alleged to be the unknown picketers’ conduct on 24 August 2021 which is said to have had the effect of prejudicing Mr Coelho in his employment.

12. In circumstances where I have concluded that the Union is not liable for the conduct of the unknown picketers on 24 August 2021, in any of the various ways alleged by the Ombudsman, I cannot be satisfied that these contraventions of the Act are made out.

13. The Ombudsman also says that, further and in the alternative to the allegations of primary liability against him discussed above, Mr Gill is liable as an accessory under s 550 of the Act for the contraventions committed by the Union. Given I am not satisfied that the facts establish that the Union has contravened the Act, it follows that Mr Gill cannot be found to be liable as an accessory to the Union’s conduct.

    RELIEF

14. The Ombudsman’s Originating Application seeks declarations of contraventions consistent with the Court’s determination of liability issues, the imposition of penalties upon Mr Gill and the Union for each of the contraventions determined, compensation for Mr Copperthwaite’s loss and Mr Coelho’s loss (to be jointly and severally paid by the Union and Mr Gill) and personal payment orders. The personal payment orders sought oblige Mr Gill to personally pay any penalties imposed upon him and not to seek or receive money referrable to those penalties from the Union.

15. The hearing was conducted on the basis that matters of liability were to be determined before a further hearing on relief. The one exception to that approach was the hearing of evidence from Mr Copperthwaite and Mr Coelho as to their loss.

16. In those circumstances, I will consider the question of compensation for Mr Copperthwaite and Mr Coelho. It will remain necessary to hear from the parties on the appropriateness of declarations and penalties. I will otherwise order the parties to confer and propose orders reflecting these reasons and the timetabling of the further hearing on relief. I will list the matter for a case management hearing to timetable that hearing on relief.

    COMPENSATION

    Compensation principles

17. By her Originating Application, the Ombudsman seeks an order pursuant to s 545(1) of the Act that Mr Gill and the Union pay compensation to Mr Copperthwaite and Mr Coelho for their loss.

18. Section 545(1) confers a broad power on the Court to make “any order the court considers appropriate if the court is satisfied that a person has contravened … a civil remedy provision”. Section 545(2)(b) provides that without limiting subsection (1), the Court may make an order awarding compensation for loss that a person has suffered because of the contravention.

19. In determining the compensation to be awarded, the governing consideration is what the court considers “appropriate”: Dafallah v Fair Work Commission [2014] FCA 328; 225 FCR 559 at [157] (Mortimer J). This means that the section can allow a court to order compensation which may not fully compensate a person for the loss suffered: Dafallah at [157]. The discretion to award compensation is also not confined to relief only being appropriate when granted in strict observation of the remedial purpose of the power: Patrick Stevedores Holdings Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union (No 3)[2021] FCA 348; 304 IR 280 at [28] (Lee J).

20. That said, there must be an appropriate causal connection between the contravention and the loss claimed: Australian Licenced Aircraft Engineers Association v International Aviation Service Assistance Pty Ltd [2011] FCA 333; 193 FCR 526 at [423] (Barker J). Determining whether there is a causal connection may involve “not an examination of what did happen, but an assessment of what would or might have occurred, but which could no longer occur (because of the contraventions)”: Transport Workers’ Union of Australia v Qantas Airways Ltd [2024] FCA 1216; 334 IR 187 at [70] (Lee J), citing Maritime Union of Australia v Fair Work Ombudsman [2015] FCAFC 120 at [28] (Allsop, Mansfield and Siopis JJ).

21. Lee J considered in Patrick Stevedores Holdings Pty Limited v Construction, Forestry, Maritime, Mining and Energy Union (No 4) [2021] FCA 1481 at [23] that, in assessing causation under s 545(1) in that case, the following questions seemed to be relevant: first, whether a loss has been proved; second, whether the contraventions had a role in the happening of the loss; and third, whether the order for statutory compensation is appropriate.

22. Orders of compensation under s 545 can include a component for distress, shock, hurt and humiliation: see e.g. Aircraft Engineers Association at [447]–[450]; James Cook University v Ridd [2020] FCAFC 123; 278 FCR 566 at [157] (Griffiths and SC Derrington JJ, with whom Rangiah J agreed). In Qantas Airways, Lee J relevantly stated at [208]:

    As is well recognised, the assessment of compensation for emotional distress or the like is inherently imprecise and non-scientific (FWO v MUA (No 2) (at [68])) due to the fact that the Court is required to place a monetary value on something that is not easily able to be financially quantified: Richardson v Oracle Corp Australia Pty Ltd (2014) 223 FCR 334; 244 IR 277 (at [94] per Kenny J). In this sense, it has been observed that it is impossible to precisely translate such non-economic loss into a monetary sum: O’Brien v Dunsdon (1965) 114 CLR 669 (note) (at 78 per Barwick CJ, Kitto and Taylor JJ). Nevertheless, the Court must, doing the best that it can, award an amount it considers to be reasonable compensation for the non-economic loss sustained, taking into account the individual facts of each case: O’Brien v Dunsdon (at 78 per Barwick CJ, Kitto and Taylor JJ).

    Mr Copperthwaite’s compensation

23. By her Originating Application, the Ombudsman seeks an order that Mr Gill and the Union jointly and severally pay compensation to the Ombudsman for Mr Copperthwaite’s loss pursuant to s 545(1) of the Act. The Ombudsman does not claim economic loss. Mr Copperthwaite has not been diagnosed with a medical condition arising from the events on 24 August 2021.

24. The Ombudsman submits that Mr Copperthwaite should be compensated for non-economic loss. The Ombudsman submits that Mr Copperthwaite’s distress is demonstrated by the following unchallenged evidence:

    (1)Mr Copperthwaite thinking about the incident every day whilst he was still working at Fremantle docks;

    (2)Mr Copperthwaite waking up suffering anxiety and fear while he continued to work;

    (3)Mr Copperthwaite putting in place 24 hour 7 day a week security during the industrial action;

    (4)Mr Copperthwaite hiring a car for his partner to use for two weeks;

    (5)Mr Copperthwaite still having occasional nightmares of feeling crowded and threatened; and

    (6)Mr Copperthwaite having panic attacks if he is in dark areas.

25. The Ombudsman submits that Mr Copperthwaite should be awarded between $40,000 and $50,000 in compensation. The Union submits that the amount sought by the Ombudsman is “manifestly excessive” and an amount in the $10,000 range is appropriate for Mr Copperthwaite: see CFMMEU v Melbourne Precast (No 3) [2020] FCA 1309 per O’Callaghan J.

26. As explained above, I am not satisfied that the Union has caused Mr Copperthwaite any loss. However, I am satisfied that the Ombudsman has established an appropriate causal connection between Mr Gill’s contraventions and the loss suffered by Mr Copperthwaite. As discussed above, I am satisfied that Mr Gill has contravened ss 343, 348 and 346 in respect of Mr Copperthwaite. I accept that Mr Copperthwaite experienced distress and hurt as a result of Mr Gill’s contraventions.

    Quantum of compensation: Mr Copperthwaite

27. In determining Mr Copperthwaite’s loss under s 545, I have had regard to the principles I have outlined above and the fact that I have only found contraventions in respect of Mr Gill’s conduct and not in respect of the unknown picketers’ conduct. I do not consider it “appropriate”, within the meaning of s 545, to compensate Mr Copperthwaite for loss suffered due to (1) events that have not been pleaded as contraventions, being the conduct of picketers between 30 July 2021 and 23 August 2021 (such as name-calling, saying comments to the effect of “check your moral compass” and video recording with phones, or the conduct of the picketers from 25 August 2021 to the end of the picket on 15 October 2021; or (2) events that I have not found to be contraventions of the Act, being the conduct of Mr Gill on 24 August 2021 pleaded at [70(a)] of the Amended Statement of Claim or the conduct of the unknown picketers on 24 August 2021 pleaded at [70(d)-(p)] of the Amended Statement of Claim.

28. It is difficult to isolate the specific loss caused to Mr Copperthwaite by Mr Gill’s dead dog statement, as compared to the conduct of the other picketers on 24 August 2021 and any conduct during the picket before or after that date. I have had regard to the evidence of Mr Copperthwaite as to the distress caused by the picketers in the period before 24 August 2021 described at [53] above, including his comment to Inspector Tonev that over time he “almost became immune” to the constant behaviour. I have found that the conduct of the other picketers toward Mr Copperthwaite on 24 August 2021 included death threats (described at [384]) and statements that Mr Copperthwaite should “think about Charmaine and the kids” (at [393]). I accept that that conduct would have caused distress to Mr Copperthwaite. Nevertheless, my task is to award compensation that reflects Mr Gill’s contravention alone, noting the inherently imprecise nature of calculating non-economic loss.

29. Mr Gill’s threat was serious. I am satisfied that Mr Gill’s threat was made in close proximity to Mr Copperthwaite, in a confrontational manner, and caused Mr Copperthwaite distress. In awarding compensation, I consider the seriousness of Mr Gill’s conduct, but also the fact that Mr Copperthwaite has not suffered any diagnosed psychological injury: see Dafallah at [179], Melbourne Precast at [10]. I will make an order for compensation of $14,000, which I consider to be appropriate in all the circumstances.

    Mr Coelho compensation

30. By her Originating Application, the Ombudsman seeks an order, pursuant to s 545 of the Act, that the Union pay compensation for the loss that Mr Coelho has suffered because of the contravention of the Act. The Ombudsman submits that Mr Coelho’s loss is in the form of a profound psychological injury from which he may suffer for the rest of his life. The injury is said to have the events of 24 August 2021 as its “precipitant” and is said to have been aggravated by the events of 20 December 2021. Mr Coelho also gave evidence about how he fears going out and how it has impacted his and his partner’s daily life.

31. In circumstances where I have concluded that the Union is not liable for the conduct of unknown picketers, and that Mr Gill’s dead dog statement was not a contravention against Mr Coelho, it is not necessary to determine the question of compensation for Mr Coelho.

32. However, and for completeness, even if I found that the Union was liable for the conduct of the unknown picketers, I would still not award compensation to Mr Coelho. This is because I do not consider that the Ombudsman has established a sufficient causal connection between the conduct of the unknown picketers on 24 August 2021 and the loss suffered by Mr Coelho.

33. For the reasons that follow, I consider that inconsistencies and deficiencies in the evidence preclude me from finding the requisite causal connection.

    Were the events water off a duck’s back?

34. In his note of 24 August 2021 following the incident, Mr Coelho wrote: “My main concern was young Chris. Cause I as an older fellow have skin like a duck. Water just slides straight off.” Mr Kranendonk gave evidence that when he asked Mr Coelho to prepare that statement, Mr Coelho said he was not sure if he would make a statement or not because “he had thick skin” and the events of 24 August 2021 were “water off a duck’s back”.

35. The Ombudsman submits that Mr Coelho’s attempts to downplay the effect of the events were signals of “false bravado” and are consistent with the position that he was better equipped to deal with threats and intimidation than the younger Mr Copperthwaite. The Ombudsman’s submissions drew attention to Mr Coelho’s evidence in examination in chief that he had a “terrified” state of mind when making the statement, and his evidence that:

    [I]f the picketers had found out I’ve made a statement, that would just escalate things even worse, your Honour. Knowing that Chris Copperthwaite had gone down to the police station and made his statement, I felt quite – yes, a little bit worried about making this statement of the – any future things that might happen to me because of it.

36. In its written submissions, the Union submits that Mr Coelho assented to the proposition in cross-examination that the 24 August 2021 incident was like “water off a duck’s back” for him. The Ombudsman submits these “concessions” are inconsistent with the rest of Mr Coelho’s evidence regarding his distress surrounding the events on 24 August 2021. It is helpful to set out these alleged concessions one by one. First, there is the following exchange:

    I asked you, a bit earlier, about the statement you gave to Qube on 24 August?---Yes.

    And is this the truth?---Yes, your Honour.

    By the end of whatever happened on 24 August, it was “like water off a duck’s back” for you? Just answer my question “yes” or “no”, please?---Yes, your Honour.

    …

    THE WITNESS: That was written – I written that in the statement.

37. Second, and shortly after that exchange, there was another exchange about the “water off a duck’s back” comments:

    You’re still employed by them?---That’s right. Michael Kranendonk even paid me for that day that the incident happened.

    All right. And this is the situation. You have the incident on 24 August, and it’s “water off a duck’s back”; correct?---Correct, your Honour.

    You then keep coming to work for, basically, every day during the industrial action?---Correct, your Honour. I wasn’t going to lose my job for no one, your Honour. I fought hard. I done – I studied and learned things I thought I would never learn. I’ve got a job of a lifetime, your Honour, and I wasn’t going to let anyone or anything get in between me and this job, your Honour.

    You continue to come to work, working side-by-side by the MUA members after the industrial action ends?---Yes, your Honour.

    (Emphasis added.)

38. These exchanges can either be interpreted as Mr Coelho conceding that the events on 24 August 2021 were “like water off a duck’s back” to him (that is, that the events did not impact him), or that he was making a more limited concession that he had written those words in his statement. However, even if I were to adopt the second interpretation, I would have to consider that interpretation alongside Mr Coelho’s evidence given in cross-examination that he told “all of [the] truth” in his note on 24 August 2021. I am satisfied that Mr Coelho did make the concession in cross-examination that the events on 24 August 2021 were “water off a duck’s back”.

39. Third, in re-examination, Mr Coelho was asked to clarify what he meant by “water off a duck’s back”. Mr Coelho said that the events of 24 August 2021 are: “Not now [water off a duck’s back]. No way”:

    You agree you asked questions about whether the events of 24 August 2021 were water off a duck’s back?---Yes, your Honour.

    And you did say it was water off a duck’s back. What did you mean by that?---That I’m a bit – a lot older than Chris, actually. And I’ve got grand-kids and nephews and nieces. And being – I was young once too, and older people that, you know, sort of stand over you or, you know, intimidate you, being younger, they get more – you know, a bit more – it’s easier to intimidate the younger bloke. And being older, it was a bit harder to get to me, like, to get under my skin.

    And the events of 24 August 2021, are they water off a duck’s back for you?---Not now. No way.

    Why not?---Because all the repercussions I’ve been facing and just having to change my whole life around what happened that day and 20 August, it’s just – it’s not normal, your Honour. I just want to go back to the way it was. I just want to go back to the way I was with my partner. Just live a free life, not wondering whether anybody is going to be here or – I just want to go back to the way I was, mate. Simple, your Honour.

    …

    MR BOURKE: ..... did you mention something about October?---24 August, is – I written the statement and – about the ducks, but also, on 20 December of 2021, I – I think I said “water off a duck’s back” as well, to – just people in general. But it’s not water off a duck’s back, not now anyway.

    (Emphasis added.)

1. I consider that when Mr Coelho said: “Not now. No way” he meant he is now impacted by the consequences of the events of 24 August 2021, cumulatively with the subsequent incidents including the 20 December 2021 minivan incident. I do not consider this passage is inconsistent with Mr Coelho indicating that, at first and without the subsequent incidents having yet occurred, the 24 August 2021 did not impact him because they were “water off a duck’s back”.

2. For completeness, I have considered the Ombudsman’s submission that it was “noteworthy that the note [of 24 August 2021] does not actually say that the events of that day ‘were water off a duck’s back’ but as a general proposition, Coelho said he has skin ‘like a duck’ and thus ‘water just slides straight off’”. I reject this submission. In my view, it is clear that Mr Coelho intended to use the idiom “water off a duck’s back” meaning that the events did not affect him.

   CCTV footage

3. The CCTV footage of the morning of 24 August 2021 appears to show Mr Coelho laughing, smiling and talking to the picketers. Mr Coelho described in examination in chief that he “gave back just as much as they [the picketers] gave me to begin with”.

4. The respondents submit that Mr Coelho’s demeanour and behaviour on the CCTV footage is consistent with the events being “water off a duck’s back” for him. The Ombudsman, on the other hand, relies upon Mr Coelho’s evidence given in cross-examination that smiling and trying to laugh things off is how Mr Coelho deals with stressful situations, and that he did not want to give the picketers the “satisfaction knowing they were getting to me”.

5. I have reviewed the CCTV footage and I consider that Mr Coelho’s demeanour throughout the video is not indicative of him being scared and intimidated.

   Continuing attendance at work

6. The respondents appear to rely on Mr Coelho’s continuing attendance at work after 24 August 2021 up until the minivan incident on 20 December 2021 as indicating that he was not “absolutely terrified” in the aftermath of the 24 August 2021 incident as he claimed. I accord this submission only limited weight. While Mr Coelho’s attendance at work is consistent with him not being terrified, this inference was not clearly put to Mr Coelho in cross-examination. There may have been many considerations that contributed to Mr Coelho’s decision to continue to work after the incident.

   Dr Mander’s report

7. The Ombudsman relies on an expert report dated 20 March 2024 of Dr Anthony Mander, a consultant psychiatrist at the Hollywood Medical Centre in Nedlands, Western Australia. Dr Mander produced a report for the Ombudsman’s solicitors for the purposes of this hearing. To prepare his report, Dr Mander relied on:

   (1)a telehealth consultation with Mr Coelho on 20 March 2024;

   (2)a questionnaire filled out by Mr Coelho on 3 March 2024;

   (3)the Statement of Claim filed on 24 March 2022, and the Union’s and Mr Gill’s defences filed on 14 July 2023; and

   (4)a letter from the Ombudsman’s solicitors dated 7 March 2024.

8. Dr Mander concluded that Mr Coelho suffers from a generalised anxiety disorder. The “precipitant” of this disorder, which Dr Mander explained in oral evidence to mean the “trigger” or “starting point”, was Mr Coelho’s experience on 24 August 2021. Dr Mander stated that while the incident on 24 August 2021 was the “precipitant” to Mr Coelho’s generalised anxiety disorder, it was the subsequent events, being the “ongoing intimidation … and the continuing perception of threat” that had been “most impairing”.

9. Dr Mander appropriately accepted in cross-examination that if some of the facts recounted to him by Mr Coelho (including in the Amended Statement of Claim) were found to be incorrect, this would impact the opinions set out in his report. Dr Mander also accepted that he would have to rethink the totality of his opinion if the Court accepted that the 24 August 2021 events were “water off a duck’s back” for Mr Coelho. Dr Mander also found that the reaction to a particular threat “is intimately dependent upon how this thing occurred, you know, ‘How seriously did you take this threat at the time? And who are you as a person?’”.

10. Given these concessions, and the fact that Dr Mander was not briefed with the CCTV footage or Mr Coelho’s 24 August 2021 note where he made the “skin like a duck” comment, I accord only limited weight to Dr Mander’s report in establishing a causal link between the 24 August 2021 events and Mr Coelho’s loss.

    Conclusion on Mr Coelho compensation

11. Weighing all of this evidence together, I do not find that there is the requisite causal connection between the events of 24 August 2021 and Mr Coelho’s loss. I consider that the evidence taken as a whole indicates that the 24 August 2021 events did not significantly impact him. While there is some possibility that 24 August 2021 was the “precipitant” event which contributed to Mr Coelho’s loss sometime later, I am not satisfied this is the case given the deficiencies in evidence I have identified. I would find therefore that even if the Union was liable for the unknown picketers’ conduct, I would not award compensation to Mr Coelho.

    DISPOSITION

12. As explained above, it remains necessary to hear from the parties on the appropriateness of declarations and penalties. I will order the parties confer as to orders reflecting the Court’s reasons and the timetabling of a hearing on further relief. I will list the matter for a case management hearing to timetable that hearing on relief.

I certify that the preceding four hundred and ninety-nine (499) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Dowling.

Associate:

Dated:       22 August 2025