Fair Work Ombudsman v Maritime Union of Australia
[2014] FCA 440
•6 May 2014
FEDERAL COURT OF AUSTRALIA
Fair Work Ombudsman v Maritime Union of Australia [2014] FCA 440
Citation: Fair Work Ombudsman v Maritime Union of Australia [2014] FCA 440 Parties: FAIR WORK OMBUDSMAN v MARITIME UNION OF AUSTRALIA and WILLIAM TRACEY File number(s): WAD 136 of 2012 Judge(s): SIOPIS J Date of judgment: 6 May 2014 Corrigendum: 2 July 2014 Catchwords: INDUSTRIAL LAW – four employees elected to work during a protected action strike – after the strike posters were distributed at the workplace specifically naming the four employees and one other as scabs – the “scab poster” used language which denigrated the named employees as being unworthy of being treated with the dignity and respect normally accorded to human beings – a union official admitted distributing the scab posters – whether the union official organised the publication and distribution of the scab posters – whether the conduct amounted to adverse action – whether the named employees were prejudiced in their employment – whether the union was directly liable in respect of the scab poster action – whether the scab poster action was conduct engaged in with the intent to coerce one or more of the named employees to engage in further strike action. Legislation: Fair Work Act 2009 (Cth) ss 340, 341, 342(1) Item 7(b), 342(b), 343, 346, 348, 360, 361, 361(1), 363, 409, 437, 793, 793(1)
Evidence Act 1995 (Cth) s 140(2)Cases cited: Commercial Union Assurance Company of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389
Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1
Qantas Airways Ltd v Australian Licensed Aircraft Engineers Association (2012) 202 FCR 244
CFMEU v BHP Coal Pty Ltd (No 3) [2012] FCA 1218
BHP Coal Pty Ltd v CFMEU [2013] FCAFC 132
Henry v Thomson [1989] 2 Qd R 412
Giller v Procopets (2008) 24 VR 1
TCN Channel Nine Pty Ltd v Ilvariy Pty Ltd (2008) 71 NSWLR 323
Monis v The Queen (2013) 295 ALR 259
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
National Tertiary Education Industry Union v Commonwealth of Australia (2002) 117 FCR 114
Schanka v Employment National (Administration) Pty Ltd (2000) 170 ALR 42
Universe Tankships Inc of Monrovia v International Transport Workers Federation [1983] 1 AC 366
Finance Sector Union of Australia v Commonwealth Bank of Australia (2000) 106 FCR 16
State of Victoria v Construction, Forestry, Mining and Energy Union [2013] FCAFC 160Date of hearing: 11-15 March 2013 Place: Perth Division: FAIR WORK DIVISION Category: Catchwords Number of paragraphs: 360 Counsel for the Applicant: Mr JL Bourke SC and Ms R Sweet Solicitor for the Applicant: Fair Work Ombudsman Counsel for the First Respondent: Mr H Bornstein SC
Solicitor for the First Respondent: Rockwell Olivier
Counsel for the Second Respondent: Ms GA Archer
Solicitor for the Second Respondent: WG McNally Jones Staff Lawyers
FEDERAL COURT OF AUSTRALIA
Fair Work Ombudsman v Maritime Union of Australia [2014] FCA 440
CORRIGENDUM
1.In the cover sheet at page 2 of the Reasons for Judgment, “Counsel for the Second Respondent” should read “Ms GA Archer SC”.
I certify that the preceding one (1) numbered paragraph is a true copy of the Corrigendum to the Reasons for Judgment herein of the Honourable Justice Siopis. Associate:
Dated: 2 July 2014
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
FAIR WORK DIVISION
WAD 136 of 2012
BETWEEN: FAIR WORK OMBUDSMAN
Applicant
AND: MARITIME UNION OF AUSTRALIA
First RespondentWILLIAM TRACEY
Second Respondent
JUDGE:
SIOPIS J
DATE OF ORDER:
6 MAY 2014
WHERE MADE:
PERTH
THE COURT ORDERS THAT:
1.The parties are to produce a minute of orders which reflects these reasons for judgment.
Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
FAIR WORK DIVISION
WAD 136 of 2012
BETWEEN: FAIR WORK OMBUDSMAN
Applicant
AND: MARITIME UNION OF AUSTRALIA
First RespondentWILLIAM TRACEY
Second Respondent
JUDGE:
SIOPIS J
DATE:
6 MAY 2014
PLACE:
PERTH
REASONS FOR JUDGMENT
The Fremantle Port Authority (FPA) provides harbour facilities at two locations in the Perth metropolitan area, namely, Fremantle and Kwinana, 20 km south of Fremantle. The location in Fremantle is known as the inner harbour. The location in Kwinana is known as the outer harbour.
There are three operational areas in the inner harbour known as Victoria Quay (East End) on the southern side of the Swan River, North Quay on the northern side of the Swan River and the Overseas Passenger Terminal. H and J berths are located on Victoria Quay just east of the Overseas Passenger Terminal. In the outer harbour, there are two jetties known as Kwinana Bulk Terminal (KBT) and Kwinana Bulk Jetty.
At the time relevant to this case, FPA employed about 24 persons in the positions of vessel traffic service officers and small craft masters. The duties of the vessel traffic service officers, or VTSOs as they were referred to at the trial, were to maintain and control the traffic of vessels in the port. The VTSOs worked in the control tower in the inner harbour. They were responsible for the scheduling of all vessels at the port. They organised the time at which a pilot could be taken out to a ship to bring the ship into the wharf, as well as the mooring in order to tie the ship up. They were referred to during the trial as the port’s equivalent of air traffic controllers for an airport. The role of the small craft masters was to drive the craft which transports pilots to the vessels wanting to enter the port. The small craft masters also carried out their duties in the inner harbour. The deputy harbour master, Mr Alec Millett, was responsible for the management of the VTSOs and small craft masters. It was common cause that the duties performed by these employees were of vital significance to the ability of the port to continue to operate. Thus, if all the employees in these positions were to go on strike, the port would be crippled because no ships would be able to move in or out of the port.
Among those employed as VTSOs during the relevant period were Mr Matthew Scott, Mr David Mawbey, Mr Troy Kitcher, Mr Neville Jones and Mr Malcolm Toole. Among those employed as small craft masters were Mr Jonathan Daly, Mr Douglas Watson, Mr David Donaldson-Stiff, Mr Jamie Strickland, Mr Jamie Ralston, Mr Peter Fellowes and Mr Dennis Letch.
From at least 2004, the Australian Maritime Offices Union (AMOU) had the constitutional coverage to represent the interests of the VTSOs and small craft masters, but the AMOU only had an insignificant presence at Fremantle port. By 2007, a number of the VTSOs and small craft masters had become members of the first respondent, the Maritime Union of Australia (MUA). Among those persons who became members of the MUA were Mr Daly, Mr Donaldson-Stiff and Mr Mawbey. Also, Mr Fellowes, Mr Letch, Mr Kitcher and Mr Jones were MUA members and also MUA delegates. Mr Strickland was not a member of the MUA, but was a member of the AMOU. Mr Watson had applied to be a member of the MUA but had not paid the membership dues. Mr Scott, however, was not a member of the MUA or any other union.
The VTSOs and small craft masters were subject to an enterprise bargaining agreement which had been entered into in 2008. The nominal expiry date for the 2008 enterprise bargaining agreement was 16 June 2011. In September 2010, negotiations commenced for a new enterprise bargaining agreement between the FPA and the VTSOs and small craft masters.
In 2011, Mr William Tracey, the second respondent, was the assistant secretary of the Western Australia branch of the MUA. Mr Tracey had commenced employment with the MUA in 2008 as a union organiser. Mr Tracey reported to Mr Christopher Cain, who was the secretary of the Western Australia branch of the MUA, the most senior member of the executive of the MUA in Western Australia. He was also the national vice president of the MUA.
At different times from late 2010 onwards, a number of the VTSOs and small craft masters appointed Mr Tracey as their bargaining agent for all purposes of the Fair Work Act 2009 (Cth). These employees included Mr Watson, Mr Mawbey, Mr Daly and Mr Donaldson-Stiff. Mr Tracey engaged in negotiations with representatives of the FPA for the new enterprise bargaining agreement. During the negotiations, Mr Tracey proposed inclusion in the new agreement of a provision which would give the employees a six day paid interval between their four working shifts. At the time, the current interval was four days. This “four and six” claim was also part of the log of claims then being made by the MUA with respect to the employees covered by the Chevron enterprise bargaining agreement at Port Hedland, which was then being renegotiated.
During the negotiations on behalf of the VTSOs and small craft masters Mr Tracey also pushed for the MUA to be a party to the enterprise bargaining agreement, and also for the inclusion of a dispute resolution clause which was drafted by the MUA. During these negotiations, Mr Tracey wore MUA branded clothing.
On 26 September 2011, Mr Tracey, on behalf of those VTSOs and small craft masters who had appointed him their bargaining agent, applied to Fair Work Australia for a protected action ballot pursuant to s 437 of the Fair Work Act. The application was subsequently granted. Mr Tracey was represented before Fair Work Australia, by a lawyer, Mr Luke Edmonds. An invoice for that appearance was rendered to the MUA which paid the invoice.
In September 2011, the WA Rank & File Voice - the MUA WA branch newspaper - contained an article written by Mr Tracey entitled “Fight from the Front”. Parts of the article referred to the Western Australia branch of the MUA being in the middle of a number of “key campaigns”. One of those “key campaigns” identified by Mr Tracey in the article was that involving the VTSOs and small craft masters.
On 17 October 2011, Mr Tracey, on behalf of the VTSOs and small craft masters, filed a further application for a protected action ballot pursuant to s 437 of the Fair Work Act. The application was subsequently granted. Mr Tracey was again represented by a lawyer, whose invoice was paid by the MUA.
In October 2011, the VTSOs and small craft masters took part in a ballot as to whether to take protective action in relation to the 2011 negotiations for a proposed enterprise bargaining agreement with the FPA.
On 27 October 2011, the ballot was declared in favour of taking protected action in relation to the 2011 enterprise bargaining agreement. There were four votes against the motion. Mr Watson was one of the employees who voted against going on strike. He told other employees that he had done so. Mr Daly also voted against going on strike and also told other employees he had done so.
In late October or early November 2011, Mr Peter Kerr, a journalist, became aware of the ballot referred to above. Mr Kerr then had a conversation with Mr Tracey. On 8 November 2011, an article “WA to take dispute to tribunal” written by Mr Kerr, was published in the Australian Financial Review newspaper. The article referred to the ballot as a decision of some members of the MUA who worked at Fremantle port to begin industrial action concerning wage and rostering conditions by way of organised stoppages to work at the port. In the article, Mr Kerr reported that Mr Tracey had said that the MUA’s claims were a legitimate response to workers’ concerns about fatigue arising from working conditions. The article went on to say that Mr Tracey had said that the traffic controllers worked a two day shift and then a two night shift followed by four days off, and that they wanted six days off. Mr Kerr did not receive any request from Mr Tracey or from anyone else to amend the comment attributed to Mr Tracey in the article.
On 23 November 2011, Mr Daly resigned from the MUA and also withdrew his authority for Mr Tracey to continue to represent him as his bargaining agent. When Mr Daly told Mr Tracey of this decision, Mr Tracey said to Mr Daly that if that was his position, there was not much he could do about it.
On 24 November 2011, Mr Tracey notified the FPA in writing that the VTSOs and small craft masters intended to take protected industrial action for a 48 hour period to commence at 5:00 am on 1 December 2011.
On 24 November 2011, Mr Raymond Palmer, the wharf operations manager at the outer harbour, found a number of stickers, referred to at the trial as “scab stickers”, attached to lockers, fridges, a glass showcase and on the face of the clocks in the stevedore amenities room and foreman’s office at the KBT. The stickers were small, oval shaped, with red and white background, with the word “scab” written in black across them. Mr Palmer asked one of the stevedores, Mr Ryan Zammitt, an MUA delegate, who had put the stickers there. Mr Zammitt said that he did not know and that Mr Palmer should find out who had been on the night shift.
On 29 November 2011, Mr Donaldson-Stiff resigned as a member of the MUA and also withdrew his authority for Mr Tracey to act as his bargaining agent. He did this by hand delivering a letter to that effect to the MUA office in Fremantle. On the same day, Mr Mawbey also withdrew his authority for Mr Tracey to act as his bargaining agent and resigned as a member of the MUA. Mr Mawbey said that he resigned from the MUA because he disagreed with the tactics that were being used by Mr Tracey, in the sense that Mr Tracey first negotiated for a pay increase and then he sought to change the roster from “four and four” to “four and six”.
The majority of the VTSOs and small craft masters took strike action at the Fremantle port site for a 48 hour period. The strike action commenced at 5:00 am on 1 December 2011 and concluded at 5:00 am on 3 December 2011.
However, there were a number of VTSOs and small craft masters who worked during the 48 hour period of the strike. The VTSOs who worked were Mr Scott and Mr Mawbey. They were assisted in the control tower by Mr Allan Gray, the harbour master, and Mr Millett, the deputy harbour master. The small craft masters who worked were Mr Strickland, Mr Daly and Mr Donaldson-Stiff. They were assisted by Mr Kevin Edward, the manager of port operations, who, during the strike, worked as a deckhand. The consequence was that the strike action failed to shut down the operations of the port.
When the strikers returned to work after the strike, Mr Daly told Mr Fellowes and Mr Ralston, that the days when the others were on strike, were “the best days” he had ever worked.
Mr Watson did not work during the 48 hour period of the strike commencing at 5:00 am on 1 December 2011. He was a casual employee and was not rostered to work during that period. However, Mr Watson was working on the last shift before the commencement of the strike action, and Mr Watson communicated with the incoming shift – being those who had chosen to work during the strike period. By reason of having engaged in that communication, Mr Watson’s time card showed that he had clocked off at 5:00:53 am, later than the other workers who were part of his shift. The direction which had been given to the strikers was to vacate the premises before 5:00 am.
On 4 December 2011 and 6 December 2011, Mr Tracey wrote a letter to the FPA advising that the VTSOs and small craft masters intended to take protected strike action for a period of 48 hours to commence at 5:00 am on 10 December 2011 and 12 December 2011 respectively.
On 6 December 2011, Mr Tracey and Mr Christopher Cain had a breakfast meeting. At that meeting they considered the industrial strategy to be pursued following the failure of the strike action. I will consider the inferences to be drawn from that meeting later in these reasons.
On 6 December 2011, Mr Tracey came into the possession of about 20 posters, referred to in this proceeding as “the scab posters”, from Mr Matthew Elliot at the MUA office in Fremantle. Mr Elliot said he found the posters at 11 and 12 berths in the inner harbour, brought the posters to the MUA office and handed those posters to Mr Tracey, as they were passing on the stairs at the MUA office.
The content of the scab poster is set out below:
ATTENTION
SCABS IN FREMANTLE
The following people worked while their workmates legally took
Protected Action in a dispute with Fremantle Ports for a new
Enterprise Agreement:Control Tower – Dave Mawbey
Control Tower – Matt Scott
Pilot Vessels – John Daly
Pilot Vessels – Dave Donaldson-Stiff
Pilot Vessels – Doug WatsonThis treacherous behaviour should stand condemned by all workers in Fremantle. Right across the Port of Fremantle, Wharfies, Seafarers and Port Workers have been campaigning for new Enterprise Agreements.
Workers in the control tower and pilot vessels have been doing the same and these lowlifes have turned on their colleagues to do the bosses bidding.THE SCAB
After God made the rattlesnake, the toad and the vampire, he had some awful substance left over, with which he made a SCAB.
A SCAB is a two legged animal with a corkscrew soul, water logged brain and a combination backbone made of jelly and glue. Where other people have their hearts, a SCAB has a tumour of rotten principles.
When a SCAB comes down the street, honest men turn their backs, the angels weep tears in heaven and the devil closes the gates of hell to keep them out. No-one has a right to SCAB, as long as there is a pool of water deep enough to drown their body, or a rope long enough to hang their carcass with.
Judas Iscariot is a gentlemen compared with the SCAB for after betraying his mater, he had enough character to hang himself and a SCAB has not. There is no word in the English language that carries so much hatred, scorn, loathing and contempt as the word SCAB.
Once so branded a SCAB, they are marked for life. There is no escape. It is infinitely worse than the brand placed upon Cain. It goes with them everywhere, it shadows their every footstep. It never dies, and no wonder, for it is synonym of all that is mean, contemptible and unmanly. It signifies that it is impossible for its owner to descend to lower depths.
The SCAB has tried to undermine people who are battling for the bread and butter of their partners and chil-dren. They have sought to defeat their fellows and rivet the chains of oppression around them. Judas would not have sunk so low.
The criminal for the penitentiary may, to some degree, rehabilitate their character, but the SCAB is an external fixture, a living monument of self inflicted shame, a reproach to honest people, something that bares the outer resemblance of a person, but from whom the dignity of humanity has departed for ever. As people shun the leper for fear of the physical contamination, so they shun the SCAB for fear of spiritual contamination.
On 7 and 8 December 2011, Mr Tracey put up scab posters at a number of locations. These locations were on the MUA noticeboards in the crib room at H and J berths in the inner harbour, on the MUA noticeboards in the stevedore foreman’s office at KBT in the outer harbour, on the MUA noticeboards in the stevedore crib room at KBT, on a glass‑fronted noticeboard in the maintenance crib room in the maintenance workshop and in the fire station at the inner harbour.
Another location where Mr Tracey attached a scab poster was to the bollard at the entry gate to Victoria Quay 3 in the inner harbour. He attached the scab poster to the bollard about 2:30 pm on 8 December 2011. This event was captured on CCTV security footage.
The scab poster named Messrs Scott, Mawbey, Daly and Donaldson-Stiff - each of whom worked during the two day strike - as “scabs”. The scab poster also named Mr Watson as a “scab”. Even though Mr Strickland had worked during the strike, he was not named on the poster.
At about 6:00 am on 8 December 2011, Mr Palmer was approached in his office in the outer harbour by a contractor who was holding a scab poster. The contractor said that he had found the poster in the crib room on the table and there was another one in the stevedore foreman’s office. Mr Palmer attended the foreman’s office and saw a poster fixed to the noticeboard. The shift foreman, Mr Gary Carbon, was in his office. Mr Carbon said that he did not know who had put the poster up and that it was up when he started his shift in the morning. Mr Palmer removed the posters.
Later in the morning of 8 December 2011, Mr Palmer advised Mr Mark Pearce, the manager of bulk business for the FPA, who was located at the outer harbour, of the discovery of the scab posters, and showed him a scab poster which he had found placed on a noticeboard in the stevedore amenities area. Mr Palmer also reported to Mr Pearce that he had removed all the copies of the poster from the stevedore amenities area.
Early on 8 December 2011, Mr Edward, who, as I have said, was the manager of port operations, and located in the inner harbour, received a text message from Mr Glenn Humphreys, the operations manager of a stevedore company, then known as POAGS. The text message was to the effect that his shift manager had been in the amenities room at H and J berths and found a number of the scab posters on the tables in that location. As mentioned, H and J berths are located on Victoria Quay just east of the Overseas Passenger Terminal in the inner harbour. Mr Edward then went to the amenities room. There Mr Edward found a number of scab posters placed adjacent to a MUA publication, on tables in the amenities room. Mr Edward took photographs of the tables on which the posters and the MUA publication were placed.
At 10:22 am on 8 December 2011, Mr Pearce sent an email to all staff. The email read as follows:
Unfortunately today we have had to remove some posters, which are directly related to the industrial action below, from being displayed onsite. These are seen as workplace harassment and bullying as per Fremantle Ports’ policy and are totally inappropriate.
I will not tolerate this type of behaviour and should the person(s) be identified there will be severe disciplinary action taken, which may include (but is not limited to) suspension or dismissal.
The industrial action referred to in the email was the two day strike by the VTSOs and small craft masters.
Later in the day, on 8 December 2011, Mr Tracey telephoned Mr Pearce. Mr Tracey told Mr Pearce that he intended to shut down the operations at the outer harbour on Saturday, 10 December 2011 as part of the industrial action in support of the VTSOs and small craft masters negotiations for their enterprise bargaining agreement. There was also discussion about the scab posters which had come to Mr Pearce’s attention earlier that day.
Aspects of the conversation between Mr Tracey and Mr Pearce are controversial and I will deal with those aspects later in these reasons.
Also, on 8 December 2011, the chief executive officer of the FPA, Mr Christopher Leatt-Hayter, had a telephone conversation with Mr Cain of the MUA about the industrial dispute concerning the proposed 2011 enterprise bargaining agreement with the VTSOs and small craft masters. During the course of that conversation, Mr Cain advised Mr Leatt‑Hayter that unless the negotiations were settled, more protected industrial action would be coming. Mr Cain also said that he was not happy that the FPA was “running the port using scabs”. Mr Cain and Mr Leatt-Hayter met later that day, in an attempt to finalise the 2011 negotiations.
On 9 December 2011, Mr Edward received a report that another six to eight scab posters had been found in the H berth amenities room and that they were on the tables and on the wall.
Also on 9 December 2011, a telephone conversation occurred between Mr Leatt‑Hayter and Mr Cain during which Mr Leatt-Hayter advised Mr Cain of the FPA’s final offer to resolve the 2011 negotiations. Mr Cain responded by saying that he accepted the offer and that the MUA would “pull” the proposed strike action due to commence the next day.
On 9 December 2011, after the telephone conversation with Mr Cain, Mr Leatt-Hayter sent a letter to Mr Cain confirming the offer. The letter was addressed to Mr Cain as “Branch Secretary Maritime Union of Australia”. Mr Tracey responded to this letter by email to Mr Leatt-Hayter formally accepting the 9 December 2011 offer and withdrawing the strike action proposed for the next day.
The strike action proposed to commence on 10 December 2011 did not occur.
During the night shift on 9 December 2011, Mr Watson had heard from a pilot that he had been named as a scab on the scab poster. He was angry and wanted an explanation. Early on 10 December 2011, Mr Watson drove to the MUA office. The MUA office was closed.
On 11 December 2011, Mr Tracey sent an email to Mr Cain, members of the Western Australia branch executive of the MUA and delegates and workers. The subject heading was “MUA EBA update for FPA workers”. Amongst other things, the email gave an update on the 2011 negotiations in respect of the VTSOs and small craft masters. The email included the following statement:
Clearly we could have got a better and quicker result had the 5 scabs not ratted on those people they work with day in day out.
On 12 December 2011, the West Australian newspaper published an article on its front page entitled “The Union’s Wrath”. The front page included a picture of the scab poster. The names of the persons named in the poster had been redacted. The newspaper article repeated extracts from the scab poster and did not name or otherwise identify the persons referred to in the scab poster.
On 12 December 2011, Mr Daly first learned of the existence of the scab posters when he saw the article in the West Australian. Mr Scott also first found out about the scab posters on this day, after a friend of his drew his attention to the article in the West Australian newspaper.
On 12 December 2011, Mr Watson had a telephone conversation with Mr Tracey. I will deal with the content of this conversation later in these reasons.
At 5:45 pm on 15 December 2011, Mr Humphreys went to the amenities area at 11 and 12 berths to post notices on the POGAS noticeboard. Whilst there, Mr Humphreys observed a scab poster which had been affixed to the wall near one of the windows in the amenities area. He reported his discovery to Mr Edward.
On 19 December 2011, Mr Tracey attended a meeting with Mr Pearce and Mr Gray in relation to an employment issue affecting a stevedore who was an MUA member. During the meeting the scab poster was discussed. Aspects of this conversation are controversial and I will deal with those aspects later in these reasons.
After the scab posters had been found, Mr Leatt-Hayter spoke to Mr Daly, Mr Scott and Mr Mawbey. He offered each of the employees counselling services. However, none of them asked for counselling services.
On 11 January 2012, Mr Humphreys was shown three stickers which an employee said he had taken off the amenities tables at berths 11 and 12. The first sticker was rectangular. In the middle of the sticker the words “I WOULD NEVER SCAB” were written in bold capital letters and beneath those words in smaller font were the words “MUA HERE TO STAY”. The sticker also bore the emblem of the MUA with the words “WA BRANCH” above it and the words “RANK & FILE” below it.
The second sticker contained the words “WHEN YOU SCRATCH A SCAB…IT BLEEDS”. The third sticker showed a picture of a man holding a shotgun front on so that its two barrels pointed towards the reader. The man is wearing a hat which bears the words “MUA FOREVER” and the words “SCAB HUNTER” are printed in the barrels of the shotgun. At that time, some of the POGAS employees were wearing the “SCAB HUNTER” sticker on their safety helmets. Mr Humphreys asked them to remove the stickers.
On 6 February 2012, Mr Tracey and Mr Watson had a conversation at the Tradewinds hotel in Fremantle whilst Mr Watson was attending a course at the hotel, during which Mr Watson complained about having been named as a scab in the scab poster. Aspects of this conversation are controversial and I will deal with those aspects later in these reasons.
In April 2012, the WA Rank & File Voice, contained an article by Mr Tracey under the heading “Plenty of Battles Still to be Fought”. The article referred to a number of negotiations for different enterprise bargaining agreements in which the MUA was involved. The report contained the following extract:
At Fremantle Port, we have landed the EBA for the Small Craft and Control Tower after a volatile campaign that resulted in four days of industrial action and threats of escalating disputation.
Scab labour at the Port did little to assist resolution of the dispute and it’s a pity that the scabs are not bright enough to appreciate that their inability to grasp an industrial strategy and do their best for the boss actually forced the dispute to action.
Now those same blokes have their hands out for back-pay and other benefits won by their co-workers in an act of bastardry that won’t be forgotten for a long time in the Port of Fremantle or anywhere up and down the west coast.
Through the discipline and determination of those who stood by their workmates and principles, we achieved an outcome that looked lost at one stage of the dispute. Congratulations to all involved who proved that despite the resources of the port and the misguided endeavours of a small group of scabs, they could still get a great result that was 100 per cent supported by the workforce.
We ended up with annual wage increases over 6% for each of the three years of the agreement as well as full back-pay and backdating of the agreement to the expiry of the last agreement.
In October 2012, ten months or so after the two day strike, there was a strike at the inner harbour by the port service officers ‑ a different category of employees to the VTSOs and small craft masters. Mr Daly, although he was not a port service officer, worked during the strike carrying out the duties of a port service officer. Mr Strickland also worked during this strike.
In December 2012, there was another strike at the inner harbour by the port service officers. Mr Daly again worked during this strike as a port service officer. During that strike a picket line was established at a gate to the inner harbour. Mr Donaldson-Stiff was violently harassed whilst sitting in his motor vehicle by workers manning the picket line as he tried to enter the harbour premises on his way to work as a VTSO, during the strike.
I make findings of fact in respect of the matters referred to in [1]-[56] above.
THE PROCEEDINGS IN THIS COURT
On 22 June 2012, the applicant, the Fair Work Ombudsman commenced an application in this Court against Mr Tracey and the MUA in relation to the scab posters. The applicant claimed that Mr Tracey and the MUA had contravened s 346(c) and s 348 of the Fair Work Act and that each should pay pecuniary penalties. Each of s 346(c) and s 348 is a civil penalty provision.
More specifically, the applicant alleged that each respondent had contravened s 346(c) of the Fair Work Act by taking adverse action, namely, the publication and dissemination of a poster entitled “Scabs in Fremantle”, against each of Mr Daly, Mr Mawbey, Mr Scott, Mr Donaldson-Stiff and Mr Watson (the named employees) because they did not engage in industrial activity between 5:00 am on 1 December 2011 and 5:00 am on 3 December 2011. Further, the applicant alleged that each of the respondents had contravened s 348 of the Fair Work Act by the publication and dissemination of the scab poster in relation to each of the named employees with the intent to coerce each of the named employees (later amended to “one or more” of the named employees) to engage in industrial activity that was scheduled to commence on 10 December 2011 and conclude on 12 December 2011.
In his application, the applicant sought an order pursuant to s 546(3)(a) of the Fair Work Act that all the penalties imposed be paid into the Consolidated Revenue Fund of the Commonwealth. The applicant also sought an order that, pursuant to s 545(1) and/or s 545(2)(b), each of the respondents pay compensation to each of the named employees for any loss suffered as a result of the contraventions referred to above.
Section 545(1) of the Fair Work Act provides that a court may make any order which it considers appropriate if it is satisfied that a person has contravened a civil remedy provision. Further, s 545(2)(b) provides that, without limiting s 545(1), a court may make an order awarding “compensation for loss that a person has suffered because of the contravention”.
THE EVIDENCE
The applicant’s evidence
The applicant adduced affidavit evidence from a number of persons who were not cross-examined. The evidence comprised affidavits made by the following persons: Ms Amy Wiseman, Mr Raymond Palmer, Mr Glenn Humphreys and Ms Jemillah Bickerton and a statement of anticipated evidence by Mr Peter Kerr. In respect of Mr Kerr’s statement, the respondents did not object to the statement standing as Mr Kerr’s evidence-in-chief.
The applicant also adduced evidence from each of the named employees, as well as Mr Edward, Mr Strickland, Mr Pearce, Mr Gray and Mr Leatt-Hayter - each of whom was cross-examined.
The applicant also adduced expert evidence from a psychiatrist, Dr Lawrence Terace. Dr Terace was also cross-examined. I discuss his evidence later in these reasons.
Mr Douglas Watson
Mr Watson was employed as a small craft master on a casual basis. Mr Tracey submitted that the Court should approach Mr Watson’s evidence with caution. Mr Tracey complained that Mr Watson was doing no more than reciting his affidavit which had been prepared for him by the applicant’s solicitors. There were also other criticisms made which I have dealt with later in these reasons.
In my view, Mr Watson was a reluctant witness. He was uncomfortable because he was conscious of the power of the MUA on the waterfront. However, although there was some difficulties with his evidence which I have referred to below, in my view, Mr Watson gave his evidence to the best of his ability, and I have, generally speaking, accepted his evidence.
Mr Matthew Scott
Mr Scott was employed as a VTSO. During cross-examination, Mr Scott was forthright and articulate. I have, to a large extent, accepted his evidence.
Mr David Mawbey
Mr Mawbey was a credible witness. I have accepted his evidence.
Mr Jonathan Daly
Senior counsel for Mr Tracey impugned the reliability of Mr Daly’s evidence. I have dealt with some of the criticisms made about Mr Daly’s evidence, particularly, that he has exaggerated the extent of the distress that he has suffered by reason of being named in the scab poster, in my reasons below. I have found that although there are some unsatisfactory aspects of Mr Daly’s evidence, there are other aspects of his evidence which are to be accepted.
Mr David Donaldson-Stiff
Mr Donaldson-Stiff’s evidence was also criticised by senior counsel for Mr Tracey. There were some difficulties with Mr Donaldson-Stiff’s evidence which I discuss below. I have accepted some aspects of Mr Donaldson-Stiff’s evidence but not accepted other aspects of his evidence.
Mr Jamie Strickland
Mr Strickland gave his evidence to the best of his ability. I have accepted Mr Strickland’s evidence.
Mr Kevin Edward
As mentioned, Mr Edward was, at the relevant time, the manager of port operations based at the inner harbour. No criticism was made of Mr Edward’s evidence. I accept his evidence.
Mr Christopher Kenneth Leatt-Hayter
Mr Leatt-Hayter is the chief executive officer of the FPA. He is a measured man and gave evidence to the best of his ability. No criticism was made of Mr Leatt-Hayter’s evidence. I accept his evidence.
Mr Allan Gray
Mr Gray is the harbourmaster and general manager of port operations at the FPA. Mr Gray is also referred to as Captain Gray, but indicated that his preference was to be called Mr Gray. Mr Gray gave evidence to the best of his ability and I have accepted his evidence.
Mr Mark Pearce
As mentioned, Mr Pearce was the manager of bulk business at the FPA.
Mr Pearce was succinct in the evidence which he gave during cross-examination. He was very slow to volunteer more than the question sought. Mr Pearce’s evidence was criticised by senior counsel for Mr Tracey. I discuss Mr Pearce’s evidence in more detail below. I have, generally speaking, accepted Mr Pearce’s evidence.
The first respondent’s evidence
The first respondent did not lead any evidence. It relied upon the evidence led by the second respondent.
The second respondent’s evidence
Mr Tracey relied on the evidence of Mr Matthew Elliot dated 24 January 2013. Mr Elliot was not cross-examined.
Mr Tracey gave evidence himself and called Mr Peter Fellowes, Mr Dennis Letch and Mr James Ralston, who were cross-examined.
Mr William Tracey
Mr Tracey gave evidence and was cross-examined. Senior counsel for the applicant criticised Mr Tracey’s evidence and submitted that it should be approached with caution. There were aspects of Mr Tracey’s evidence which were completely frank and forthright. Examples of this are the admissions he made to having put up the posters and also his hostility to persons he regards as scabs. However, there were other aspects of Mr Tracey’s evidence which, in my view, were fashioned for the purpose of the proceeding and were implausible. One particular example of this was his explanation of how he came into possession of the scab posters. Another example was his evidence that he did not want to encourage the named employees to strike on 10 December or 12 December 2011 because they had terminated his authority to act as their bargaining agent and, therefore, if they were to participate in the strike, that strike would be unlawful. I will refer to these aspects of his evidence later in these reasons. It follows that there are aspects of Mr Tracey’s evidence which I have accepted and other aspects which I have not accepted.
Mr Peter Fellowes
Mr Fellowes was an uncooperative witness during cross-examination. He demonstrated a propensity to tailor his evidence to assist the MUA’s case, or to answer questions in cross-examination in an oblique way to avoid damaging what he believed was the MUA’s case. However, notwithstanding these comments, I have accepted Mr Fellowes’ evidence to the effect that immediately after the strike he confined his communications with his co-workers who worked during the strike to that which was necessary to do the job.
Mr Dennis Letch
The comments made in relation to Mr Fellowes’ evidence in [81] above, also apply to the evidence of Mr Letch. I have, however, accepted Mr Letch’s evidence in relation to his dealings with his co-workers who had not gone on strike, when he went back to work after the strike.
Mr Jamie Ralston
The comments made in relation to Mr Fellowes’ evidence in [81] above, also apply in relation to Mr Ralston’s evidence. However, I have accepted his evidence as to his dealings with his co-workers who did not go on strike, when he returned to work after the strike.
THE CLAIMS AGAINST MR TRACEY
I deal first with the claims against Mr Tracey. As mentioned, the applicant claims that Mr Tracey contravened two sections of the Fair Work Act, namely, s 346 and s 348. These claims are pleaded in the applicant’s second further amended statement of claim (the statement of claim).
ADVERSE ACTION - THE ALLEGED CONTRAVENTION OF S 346(C) OF THE FAIR WORK ACT
Section 346 of the Fair Work Act relevantly provides as follows:
A person must not take adverse action against another person because the other person:
…
(c)does not engage, or has at any time not engaged or proposed to not engage, in industrial activity within the meaning of paragraphs 347(c) to (g).
Relevantly, Item 7(b) of s 342(1) of the Fair Work Act provides that adverse action is taken by an industrial association or an officer of such an association, if the association or officer:
(b)takes action that has the effect, directly or indirectly, of prejudicing the person in the person’s employment or prospective employment.
Section 342(2)(b) of the Fair Work Act provides that “adverse action” includes “organising such action”.
The adverse action alleged by the applicant against Mr Tracey is that during the period 6 to 15 December 2011, Mr Tracey had:
organised to be published and/or disseminated and/or organised to be disseminated copies of a poster entitled “Attention: Scabs in Fremantle” (Scab Poster) at various maritime sites, including:
(a)in Fremantle, including at the FPA site; and/or
(b)south of Fremantle down to and including Rockingham.
(Original emphasis.)
The applicant referred to the impugned action of Mr Tracey as “the scab poster action”.
The applicant alleged further that the scab poster action of Mr Tracey had the effect of directly or indirectly prejudicing each of the five named employees in their employment and/or prospective employment. In support of that allegation, the applicant provided particulars to the effect that the adverse action exposed each named employee to vilification, ostracism, intimidation and risk of violence, damaged their reputations, caused them emotional distress, reduced the prospects of them obtaining future work with another employer within Australia, and caused them psychological and psychiatric injury.
The applicant went on to plead that Mr Tracey engaged in the scab poster action because the named employees did not take part in “industrial activity”, being the 48 hour strike commencing on 1 December 2011.
In the alternative, the applicant alleged that, if the Court was to find that the 48 hour strike action was not “industrial action” within the meaning of 347(f) of the Fair Work Act, the applicant would contend that the impugned action was taken for one or more of the following reasons, namely, that one or more of the named employees:
(a)did not promote the two day strike action for or on behalf of the MUA;
(b)did not encourage or participate in the two day strike action which was organised or promoted by the MUA; and/or
(c)did not represent or advance the views, claims or interests of the MUA by participating in the two day strike action.
The applicant contended that because Mr Tracey had taken adverse action against each of the five named employees, his conduct, therefore, constituted five separate contraventions of s 346 of the Fair Work Act.
The applicant also contended that in respect of “the requisite intent” under s 346 of the Fair Work Act, namely, in this case, that Mr Tracey had taken the impugned action because the named employees had not taken part in the 48 hours strike action, the applicant would rely upon the operation of s 361(1) of the Fair Work Act.
Section 361(1) of the Fair Work Act, provides that if, in an application of this kind, it is alleged that a person took action for a particular purpose or with a particular intent, and taking that action for that reason or with that intent, would constitute a contravention of Pt 3‑1 of the Fair Work Act, then it is presumed in those proceedings, that the action was, or has been taken, for that reason, unless the person proves otherwise.
The alleged impugned action of Mr Tracey fell within Pt 3-1 of the Fair Work Act, and, therefore, s 36(1) of the Fair Work Act would apply in this case.
The issues arising from the adverse action claim against Mr Tracey
At the trial, Mr Tracey relied upon a further amended defence dated 31 January 2013 (the defence). In his defence, Mr Tracey made it clear that he was relying upon the “penalty privilege”. However, notwithstanding this plea, Mr Tracey admitted a large number of allegations made in the statement of claim by the applicant.
As mentioned, the core allegation made against Mr Tracey (pleaded in para 23 of the statement of claim) is that during the period 6 to 15 December 2011, Mr Tracey had:
organised to be published and/or disseminated and/or organised to be disseminated copies of a poster entitled “Attention: Scabs in Fremantle” (Scab Poster) at various maritime sites, including:
(a)in Fremantle, including at the FPA site; and/or
(b)south of Fremantle down to and including Rockingham.
(Original emphasis.)
In the defence, Mr Tracey denied organising the publication of, or organising the dissemination of the scab posters, said he was not at Rockingham during the period of approximately 6 to 15 December 2011, and otherwise did not admit para 23 of the statement of claim.
Mr Tracey also denied the allegation that the impugned action had the effect of prejudicing the named employees in their employment. Mr Tracey said any prejudice which the named employees may have suffered occurred because the named employees had worked during the two day strike action, when their co-workers had not.
Mr Tracey also pleaded that the alleged effects of the scab poster action relied on by the applicant did not, as a matter of law, prejudice the named employees in their employment or prospective employment within the meaning of Item 7(b) in s 342(1) of the Fair Work Act.
Also, contended Mr Tracey, as each of the named employees was employed at the time of the trial, the question of any impact of the alleged adverse action on prospective employment did not, as a point of law, arise.
The pleadings in respect of the applicant’s claim that Mr Tracey had contravened s 346 of the Fair Work Act gave rise to the following issues:
(a)whether Mr Tracey published or disseminated copies of the scab poster, and/or organised for copies of the scab poster to be published and/or disseminated;
(b)whether the scab poster action had the effect directly or indirectly of prejudicing any one or more of the named employees in their employment and/or prospective employment;
(c)whether the two day strike action was “industrial activity” within the meaning of s 347(f), or, alternatively, s 347(b)(ii), (iii), (v), s 347(c) or s 347(d) of the Fair Work Act;
(d)whether Mr Tracey engaged in the scab poster action because the named employees did not take part in the “industrial activity”.
WHETHER MR TRACEY DISSEMINATED COPIES OF THE SCAB POSTER, OR ORGANISED FOR THE SCAB POSTER TO BE PUBLISHED AND/OR DISSEMINATED
I now deal with the first issue.
As mentioned, the applicant pleaded in para 23 of the statement of claim that the scab posters were disseminated at maritime sites in Fremantle (including the outer harbour), south of Fremantle “down to and including Rockingham”. The outer harbour is located in Kwinana. Rockingham is a location some 10 km south of Kwinana. In the particulars of this allegation, however, the applicant did not identify any location south of the outer harbour, as a location where the scab posters had been disseminated. The only locations identified were locations in the inner and outer harbours. One such location was on a bollard at the entry gate to Victoria Quay 3 in the inner harbour.
During his opening, senior counsel for the applicant said that the applicant would be relying upon the CCTV security footage from a security camera at the entry gate to Victoria Quay 3 to prove that Mr Tracey had affixed a scab poster to the bollard at the entry gate. At that point, however, senior counsel for Mr Tracey interjected to advise the Court that Mr Tracey admitted that he had attached a scab poster to the bollard at the entry gate to Victoria Quay 3. Senior counsel for the MUA joined in the admission on behalf of the MUA
Further, in the course of his evidence-in-chief, Mr Tracey also admitted that he had attached scab posters on the MUA noticeboards in the crib room at H and J berths in the inner harbour, on the MUA noticeboards in the stevedore foreman’s office at KBT, on the MUA noticeboards in the stevedore crib room at KBT, on a glass fronted noticeboard in the maintenance crib room in the maintenance workshop and in the fire station at the inner harbour.
It is on the basis of these admissions that I have made the findings at [28] and [29] above.
Accordingly, by the time that closing submissions came to be made, the questions in issue were:
(a)whether the scab posters were disseminated at maritime sites as far south as Rockingham; and
(b)whether Mr Tracey, in addition to disseminating the scab posters to the locations which he had admitted, had organised the scab posters to be published and/or had organised the scab posters to be disseminated.
The applicant contended that findings should be made against Mr Tracey in respect of each of these two issues. In support of that contention, the applicant relied upon admissions said to be made by Mr Tracey during conversations between Mr Tracey and other persons during which the scab posters had been discussed. The applicant also contended that the Court should draw inferences.
I deal first with the allegation that Mr Tracey made admissions during the following conversations: a telephone conversation between Mr Tracey and Mr Pearce on 8 December 2011, a conversation on 19 December 2011 between Mr Tracey, Mr Gray and Mr Pearce, and a conversation between Mr Tracey and Mr Watson on 6 February 2012 at the Tradewinds hotel.
Mr Tracey’s conversation with Mr Pearce on 8 December 2011
Mr Pearce made an affidavit dated 17 October 2012 in which he deposed to the contents of his conversation with Mr Tracey on 8 December 2011. However, senior counsel for Mr Tracey objected to that part of the affidavit being adopted by Mr Pearce as his evidence-in-chief and required that that evidence be adduced orally.
In his evidence-in-chief, Mr Pearce deposed he had a telephone conversation with Mr Tracey on 8 December which was initiated by Mr Tracey, who wanted to adjourn a meeting which was to be held with Mr Pearce and Mr Gray. Mr Pearce said that Mr Tracey had told him that he needed to adjourn the meeting because he was very busy organising the upcoming industrial action. Mr Pearce understood that Mr Tracey was referring to two 48 hour strikes involving the VTSOs and small craft masters due to commence on 10 December and 12 December 2011 respectively. Mr Pearce said that Mr Tracey said that he was going to shut down the Kwinana bulk terminal as part of the industrial action on Saturday, 10 December. Mr Pearce went on to say that Mr Tracey said that there would be a picket line on that day and no one would be allowed in or out. No ships would leave and no trains would come in. Mr Pearce said that he asked Mr Tracey why he intended to take this action at the outer harbour in relation to a dispute about workers at the inner harbour, which had nothing to do with workers at the outer harbour. Mr Tracey replied that the KBT was “the biggest in the port now” and he was going to “shut you down”.
Mr Pearce said that, during that conversation, he said to Mr Tracey that they had removed a scab poster from one of their noticeboards and he was surprised that there was no MUA emblem on it. Mr Pearce then deposed as follows:
What did Mr Tracey say in response to you commenting about no logo on the posters?---He said that they were from the MUA, and I knew that, and that they were everywhere, they were even down in Rockingham.
What did you say after being told that they were MUA and everywhere?---I said they were not appropriate, certainly not to name people on the posters, and that they would be removed and not allowed in the outer harbour.
What did Mr Tracey say in response to you saying that, that he would remove them?‑‑‑He said that they were scabs, that’s why we named them, and we haven’t had scabs on the wharf for 30 years.
Do you recall if there was any other discussion about the topic of scabs?---Nothing specifically, no.
What - did you notice anything about Mr Tracey’s demeanour during the conversation concerning the posters of scabs?---He was certainly passionate about the conversation, more passionate than normal in our discussions.
Have you had many discussions with Mr Tracey in the past prior to this conversation?---I would say, yes, many, yes.
In his evidence, Mr Tracey admitted that he was a party to that telephone conversation. Mr Tracey denied that he had said that the scab posters were from the MUA. He also denied that he had said that “we named them”. However, he accepted that he had said that the posters were even down in Rockingham. However, he deposed that his comment in relation to the posters being even down in Rockingham was a “wind up”.
During cross-examination, Mr Pearce adhered to his evidence-in-chief that Mr Tracey had said that the posters were from the MUA and that Mr Tracey had said “we named them” and that Mr Tracey had been more passionate than normal during the conversation.
Further, during cross-examination of Mr Pearce, the following exchange occurred:
The phone call? All right. And when he mentioned posters in Rockingham, you took that as a throwaway line, a bit of a wind up?---Yes.
Because you didn’t think there were any posters in Rockingham, did you?---I don’t know.
No. What you mean you don’t know? At the time, when you said that, you didn’t think that there were, did you?---No.
No. So this was just Mr Tracey being Mr Tracey, winding you up?---Yes.
Also, during cross-examination, Mr Pearce conceded that his evidence, as recorded in his affidavit, that Mr Tracey had said that he intended to close down Kwinana bulk terminal “tomorrow [which was a Saturday]”, was incorrect because, in fact, the day after the conversation on 8 December 2011, was a Friday and not a Saturday. I mention this because senior counsel for Mr Tracey sought to make something of this concession, to suggest that the Court should approach Mr Pearce’s evidence with caution. Senior counsel had previously elicited an answer from Mr Pearce that he was sure that his affidavit evidence was correct. The concession about the mistaken day, said senior counsel, stood in contrast to that evidence. In my view, the error made in the affidavit and Mr Pearce’s failure to recognise it until cross-examination, was a minor matter and does not result in me not accepting Mr Pearce’s evidence, or approaching his evidence with caution.
I prefer Mr Pearce’s evidence on this conversation to that of Mr Tracey. In particular, I accept the evidence that Mr Tracey was more passionate than usual when speaking about scabs. I was able to discern from his cross-examination, the intensity of Mr Tracey’s feelings on this question, and I accept that he would have used language of the kind to which Mr Pearce deposed, during their conversation.
The meeting between Mr Gray, Mr Pearce and Mr Tracey on 19 December 2011
Mr Gray and Mr Pearce attended a meeting with Mr Tracey and Mr Orchard, a stevedore, on 19 December 2011 at the outer harbour. Mr Tracey was present at this meeting as a MUA representative for Mr Orchard.
Mr Gray gave oral evidence-in-chief about this meeting because senior counsel for Mr Tracey objected to his evidence-in-chief of the meeting being given by the adoption of his affidavit evidence.
Mr Gray deposed that during the meeting conversation turned to the scab poster. Mr Gray said that Mr Tracey asked what CCTV security camera he had been caught on. He said that Mr Tracey went on to say: “I reckon it must have been the one at Victoria Quay in the inner harbour” and that he did not realise that his “ugly face” would be caught on the camera. Mr Gray deposed that Mr Tracey had said that he was not the author of the posters, that he did not deny putting up the posters and had put up some 500 odd posters between Fremantle and Rockingham. Mr Gray said that Mr Tracey had also asked what law he had broken and what they were going to get him on.
Mr Gray went on to say that Mr Tracey then asked whether anyone else had been caught on any of the outer harbour cameras. Mr Gray said that he did not respond to Mr Tracey’s questions. Mr Gray said that after the meeting he immediately walked back to his office which he used at KBT and made a note of the conversation.
Mr Pearce also gave oral evidence-in-chief about this meeting. He said that during the meeting, Mr Tracey had said that he heard there was security footage of “people - MUA members” putting up the scab posters on billboards in Fremantle. Mr Pearce deposed that he had responded to Mr Tracey’s comment by saying that Mr Tracey had told him in their earlier telephone conversation that he was involved in putting up the posters. Mr Pearce went on to say that Mr Tracey had questioned whether he had done anything wrong. Mr Pearce accepted in cross-examination that Mr Tracey had not asked whether there was security footage of “MUA people” putting up posters, but whether there was security footage of “people” putting up posters.
In his evidence-in-chief, Mr Tracey accepted that during the conversation with Mr Gray and Mr Pearce he had inquired whether his action in putting up the poster at the bollard at the entry to Victoria Quay had been captured on CCTV security footage. Mr Tracey also said that he had asked Mr Gray whether anybody else had been caught on CCTV security footage in the outer harbour or whether the company only had information on the inner harbour. However, Mr Tracey denied that he said that he had put up 500 posters between Fremantle and Rockingham. Mr Tracey deposed that he had said that there were 500 posters between Fremantle and Rockingham and that he had put up some posters but had not been the author of the posters. However, Mr Tracey said that his comment about there being 500 posters between Fremantle and Rockingham, had been a “wind up”.
During Mr Gray’s cross-examination, it was suggested to him that Mr Tracey had not said that he had put up the 500 posters but rather that he had said that there were 500 posters. Mr Gray adhered to his evidence-in-chief. However, Mr Gray also accepted, during cross-examination, that Mr Tracey was known from time-to-time to make statements with the intention of “winding up” other persons and also to make “outrageous” statements.
I accept Mr Gray’s evidence as to the terms of the conversation with Mr Tracey and Mr Pearce on 19 December 2011. Immediately after the meeting ended Mr Gray made a note of the conversation. In that note Mr Gray has recorded that Mr Tracey said that: “Yes he put up posters probably 500 but wasn’t the author, so what law did he break.” The note also records that Mr Tracey asked if anyone else had been caught on CCTV security footage in the Kwinana area, which as I have said, Mr Tracey does not dispute saying. Mr Gray’s note does not, however, refer to Rockingham in relation to the posters. However, as mentioned, Mr Tracey accepted that at the meeting he had referred to Rockingham.
I also accept Mr Gray’s and Mr Pearce’s evidence in relation to the content of the conversation with Mr Tracey on 19 December 2011. The fact that Mr Gray was able to refresh his memory from his note enhances the reliability of Mr Gray’s evidence.
However, in light of Mr Pearce’s and Mr Gray’s evidence of Mr Tracey’s propensity to say things to wind people up, I accept Mr Tracey’s evidence that, whilst he may have said that he did so, he did not actually put up 500 posters between Fremantle and Rockingham; and that he was “winding up” Mr Pearce and Mr Gray when he said so during the conversation in question.
The applicant did not adduce any further evidence in support of the claim that scab posters were disseminated to maritime sites extending as far as Rockingham.
Accordingly, I find that the only locations to which the scab posters were disseminated were at locations in the inner and outer harbours.
I also make the following additional findings in relation to the conversations of 8 December 2011 and 19 December 2011:
(a)During the 8 December conversation with Mr Pearce, Mr Tracey did say that the posters were from the MUA, that they were scabs and that’s why we named them and that we haven’t had scabs on the wharf for 30 years.
(b)During the 19 December conversation with Mr Gray and Mr Pearce, Mr Tracey asked whether he had been caught on CCTV security footage and whether any other people had been caught putting up posters on CCTV security footage at the outer harbour.
The conversation with Mr Watson on 6 February 2012
The applicant also relied on statements made by Mr Tracey during a conversation between Mr Watson and Mr Tracey on 6 February 2012 at the Tradewinds hotel.
Mr Watson made an affidavit dated 11 October 2012 and he adopted the bulk of that affidavit as his evidence-in-chief. However, consequent upon the objection made by Mr Tracey, Mr Watson gave oral evidence-in-chief in relation to the two conversations with Mr Tracey to which he had referred in his affidavit, being conversations on 12 December 2011 and 6 February 2012 respectively. I will refer to the 12 December 2011 conversation later in these reasons.
Mr Watson deposed that he had a conversation with Mr Tracey at the Tradewinds hotel on 6 February 2012. The conversation, according to Mr Watson, became heated. Mr Watson said to Mr Tracey that he was still seeking a public apology about being named as a scab when he had not worked during the strike. Mr Tracey, said Mr Watson, replied that “scabs like you don’t get apologies”.
Mr Watson said that he asked how he could be a scab and Mr Tracey had said: “Well you were the first fucking scab in that situation”. Mr Watson said that Mr Tracey had then said that Mr Watson had left 15 minutes late and had had coffee with the oncoming crew. Mr Watson deposed that he asked: “Are you willing to crush my career just over 15 minutes?”, and that Mr Tracey responded by saying: “For scum like you, yes. You’re a scab.”
Mr Watson went on to depose that Mr Tracey then said that he had not printed the posters, but he had put up six of the scab posters and was proud of it. Mr Watson deposed that Mr Tracey then said to him: “Good luck getting another job in the maritime industry.”
Mr Watson said he made a handwritten note of the conversation on notepaper from the Tradewinds hotel.
In his evidence, Mr Tracey agreed that the conversation had taken place. Mr Tracey took issue with how the conversation had started, suggesting that Mr Watson had used abusive language towards him. Mr Tracey agreed that Mr Watson was upset. Mr Tracey also agreed that during the conversation Mr Watson had asked him why he had called him a scab and that he had indeed responded by saying: “Well you were the first fucking scab in that situation.” Mr Tracey also accepted that he had told Mr Watson that he did the handover and had a drink of coffee with the oncoming crew. Mr Tracey denied that he said that he would crush Mr Watson’s career. Mr Tracey admitted that he had said to Mr Watson that he had put up posters and that he did not print them, but denied that he had said that he was proud of it.
During cross-examination, Mr Watson deposed that he had told the applicant’s investigators during interviews conducted two days after his conversation with Mr Tracey that he was not sure whether Mr Tracey had actually used the word “proud” in relation to him putting up the posters. Mr Watson also conceded in cross-examination that he had deposed in his oral evidence-in-chief to that effect, because that was what was stated in his affidavit. He also accepted in cross-examination that Mr Tracey had not said that he would crush Mr Watson’s career.
Senior counsel for Mr Tracey relied upon this concession to challenge Mr Watson’s evidence that Mr Tracey had threatened to crush his career. However, in my view, by his concession, Mr Watson was not thereby accepting that Mr Tracey had not threatened to crush his career, but rather that it was he, and not Mr Tracey, who had used the words: “Are you willing to crush my career” as part of his inquiry of Mr Tracey. In this regard, it is relevant that this version of events is recorded in the handwritten note Mr Watson made of his conversation with Mr Tracey.
Senior counsel also contended that Mr Watson’s evidence that Mr Tracey had used the word “proud” should not be accepted, because two days after the conversation Mr Watson had told the applicant’s inspectors that he was not sure whether Mr Tracey had used that word. There were other criticisms of Mr Watson’s evidence to the effect that Mr Watson was reciting as best he could his affidavit evidence of the conversation which had been prepared for him by the applicant’s solicitors, rather than relying on his own recollection of the conversation.
I accept senior counsel’s for Mr Tracey submission in respect of the use of the word “proud”. There are two grounds for doing so. First, Mr Watson was not able to recollect two days after the event, whether the word had been used. Secondly, Mr Watson’s note does not contain a reference to the word.
However, I regard the other criticisms of Mr Watson’s evidence as being relatively minor. They do not amount to a basis on which to reject the evidence of Mr Watson as being unreliable. In relation to each of the conversations which he had with Mr Tracey, Mr Watson made a handwritten note of the conversation immediately after the conversation and was able to rely on the note to refresh his memory.
I find that Mr Tracey and Mr Watson had an animated conversation at the Tradewinds hotel. I find that during the course of that conversation Mr Tracey admitted that he had said that he had put up six scab posters but had not printed them. I also find that Mr Tracey said to Mr Watson: “Good luck getting another job in the maritime industry”, and that Mr Tracey responded to Mr Watson’s inquiry whether he would be willing to crush Mr Watson’s career over 15 minutes, by saying: “For scum like you, yes. You’re a scab.”
Did Mr Tracey organise for the scab posters to be published and/or disseminated?
The next issue is whether Mr Tracey organised the scab posters to be published and/or disseminated.
Mr Tracey denied that he organised the publication or dissemination of the posters. However, I am of the view that the applicant has established on a balance of probabilities that Mr Tracey organised the scab posters to be published and disseminated. In coming to this view, I am aware that the Court is required to apply s 140(2) of the Evidence Act 1995 (Cth) in these circumstances. I am for the reasons which follow comfortably satisfied that, in addition to distributing some of the posters himself, that Mr Tracey organised the publication and dissemination of the scab posters.
First, Mr Tracey was angry that the strike had failed and wanted to exact vengeance on those persons who, in Mr Tracey’s opinion, had caused the strike to fail.
Mr Tracey gave evidence that he had personally invested a great deal of time and effort in planning an industrial strategy which included, as an integral part, the two day strike. Mr Tracey’s evidence was that had the strike been successful, he would have succeeded in achieving his objectives in relation to the negotiation of the new enterprise bargaining agreement. I find that Mr Tracey was personally aggrieved and affronted by the fact that the strike had failed, and that the strategy which he had carefully planned had been thwarted by a small number of persons. In my view, Mr Tracey’s anger would have been further inflamed by his passionate loathing of persons whom he regarded as scabs. Evidence of Mr Tracey’s hostility to scabs is set out at [260] of these reasons. Further evidence of the intensity of Mr Tracey’s animosity at this time towards the persons who had worked during the strike, is to be found in the evidence of Mr Pearce who said that, Mr Tracey was more passionate than usual when speaking about the scab posters during their conversation of 8 December 2011. In this regard, it is relevant that Mr Tracey’s passion was still high, notwithstanding that this conversation took place five days after the strike had ended.
In his evidence, Mr Tracey said that he was “very annoyed” with the persons who had worked during the strike. That expression, in my view, understated the intensity of Mr Tracey’s anger. In my view, it was Mr Tracey’s anger and desire for a vengeful response which caused him to organise the production of the scab posters as a means of expressing that anger and exacting vengeance upon those persons who had, in Mr Tracey’s view, caused the strike to fail.
Secondly, Mr Tracey admitted in his telephone conversation with Mr Pearce on 8 December 2011, that the poster was an MUA poster, that “we named” the scabs, and that there had not been scabbing on the wharf for 30 years.
In my view, this evidence provides further support for the inference that Mr Tracey organised the publication of the poster. Mr Tracey was the officer in the MUA who was most involved in the negotiation of the enterprise bargaining agreement. As mentioned, it was Mr Tracey who had invested his time and emotional energy in planning the industrial campaign in support of those negotiations. It was, therefore, Mr Tracey, more than anyone else in the MUA, who felt personally aggrieved and angry at the conduct of persons, whom he regarded as loathsome human beings. I find that Mr Tracey had the motivation and desire to exact vengeance upon the persons whom he, and the MUA, despised. I find, therefore, that it was Mr Tracey who was the person within the MUA who organised the publication of the scab posters. Further evidence of Mr Tracey’s personal involvement in the organisation of the publication of the scab posters is to be found in his statement to Mr Pearce that “we named” the scabs. I infer from this comment that Mr Tracey, along with at least one other officer of the MUA, participated in the decision to name the employees in the scab poster as a means of exacting vengeance.
Thirdly, Mr Tracey’s statement that he only became involved in the dissemination of the scab posters by coincidence, is not plausible.
It was Mr Tracey’s evidence that his involvement with the scab posters came about by coincidence. Mr Tracey said that he happened to meet Mr Elliot on the stairs in the MUA office and Mr Elliot happened to be carrying about 20 scab posters which he then handed to Mr Tracey who then, without thinking very much about it, during his rounds, put up the scab posters at the various locations to which I have referred.
In my view, that evidence is simply not plausible. This is because it does not take account of the intensity of Mr Tracey’s anger, his loathing of the persons he regarded as scabs, and the fact that, according to what Mr Tracey told Mr Pearce, there had not been scabs on the wharf for 30 years. For this last mentioned reason, in particular, in my view, both Mr Tracey personally, and the MUA as an organisation, perceived the need to respond aggressively to what each regarded as subversive and provocative conduct by persons they despised.
Mr Tracey’s evidence paints an implausible scenario whereby Mr Tracey was content to do nothing in response to the anger and frustration which he felt in respect of provocative and subversive conduct which had not occurred on the wharf for 30 years; and that it was only because of a coincidental meeting with Mr Elliot (who happened to be carrying some scab posters) on the stairs in the MUA office, that Mr Tracey decided to put up the posters, without thinking much about it, as he went about his daily rounds. Because this evidence is not plausible, I do not accept it.
Fourthly, I infer from matters mentioned above, and the fact that Mr Tracey inquired during the meeting between Mr Tracey, Mr Gray and Mr Pearce on 19 December 2011 whether other people had also been caught on the security footage distributing posters, that Mr Tracey knew that other persons had been involved in doing so, and that he knew this because he had been instrumental in organising them to do so.
PREJUDICING THE NAMED EMPLOYEES IN THEIR EMPLOYMENT
As mentioned, Item 7(b) of s 342(1) of the Fair Work Act relevantly provides that adverse action is taken by an industrial association or an officer against a person if:
the industrial association or the officer:
(b)takes action that has the effect, directly or indirectly, of prejudicing the person in the person’s employment.
The next question, therefore, is whether the scab poster action had the effect, directly or indirectly, of prejudicing each of the named employees in their employment or prospective employment.
It was common cause that none of the named employees had suffered any detriment in their terms and conditions of employment by reason of the adverse action alleged. Indeed, there was undisputed evidence that the FPA was grateful for the work that the named employees had done during the strike.
The applicant, however, alleged that the impugned action had the effect of prejudicing the named employees directly or indirectly, in their employment or prospective employment in a different way. The applicant relied upon the following particulars of “prejudice”:
(a)Exposing the [named employees] to vilification, ostracism, intimidation and/or the risk of violence from FPA employees or other maritime workers in Fremantle and/or Western Australia and/or Australia;
(b)Casting aspersions on the [named employees] honesty, integrity and reputation;
(c)Damaging or otherwise defaming the reputations of the [named employees];
(d)Reducing the prospects of the [named employees] obtaining work with another employer with in the maritime industry in Fremantle and/or Western Australia and/or Australia;
(e)Subjecting the [named employees] to the fear of any of the above matters referred to in (a) to (d) occurring; and/or
(f)Psychiatric or psychological injury, emotional distress and upset by reason of the content and/or distribution of the Scab Poster, including by reason of any of the matters in (a) to (e) above.
The words “FPA employees” is a defined term in the statement of claim and refers to the group of employees comprising the VTSOs and the small craft masters.
Vilification, casting aspersions and defamatory statements
I accept the applicant’s contentions that the scab poster carried imputations that the employees were disloyal, immoral and of a “low life status”. I find that the language of the posters did cast aspersions on the honesty, integrity and reputation of each of the named employees and that the words were defamatory. However, no issue arose in the proceeding as to whether that language would have given rise to a finding of actionable defamation – in other words, whether there were defences available.
The applicant contended that the attack on each of the named employee’s reputation would inevitably adversely affect how their co-workers would view and relate to him. This, said the applicant, was a case of direct prejudice.
I will consider later in these reasons the extent to which the finding I have made is relevant to determining whether the scab poster action prejudiced the named employees in their employment.
Ostracism, intimidation, emotional distress and fear
In addition, the applicant also contended that the scab poster action caused each of the named employees to suffer ostracism, intimidation, emotional distress and fear, and thereby prejudiced the named employees in their employment.
Mr Daly
I deal first with Mr Daly’s evidence on ostracism. Mr Daly said in evidence that on Mr Fellowes’ return to work after the December 2011 strike, his relationship with Mr Fellowes went from “zero to minus ten” and that Mr Fellowes had not spoken to him since the strike. Mr Daly also said that since the posters were put up he loathed going to work for night shifts because Mr Fellowes was there. However, the evidence showed that there was a poor relationship between Mr Fellowes and Mr Daly of some longstanding before the strike and on Mr Daly’s own admission, the deterioration in his relationship with Mr Fellowes occurred immediately on Mr Fellowes returning to work after the strike. Mr Fellowes deposed to like effect. He said that his already poor relationship with Mr Daly deteriorated further after the strike. He said that he was disappointed in those persons who had worked during the strike, and from then on he confined his communications with them to matters that were necessary to do the job.
I find that Mr Fellowes stopped speaking to Mr Daly except to the extent that it was necessary to do their work, immediately upon Mr Fellowes returning to work after the strike.
Mr Letch gave evidence that on his return to work after the strike he changed his relationship with Mr Daly. From then on, said Mr Letch, he confined his verbal communication with Mr Daly only to what needed to be said to carry out their work. Mr Letch also deposed that he had told Mr Daly that he was disappointed in him.
I accept the evidence of Mr Letch that the change in the way he dealt with Mr Daly started immediately on his return to work and that this change in the response of Mr Letch to Mr Daly was caused by the disappointment Mr Letch felt in relation to Mr Daly’s actions in working during the strike. In my view, such a response is a natural response. Mr Letch explained that he was particularly disappointed in Mr Daly because he had by his previous actions promoted the strike, but then not gone on strike. The evidence of Mr Letch is consistent with the evidence given by Mr Daly in cross-examination when he accepted that whilst Mr Letch had said that he was disappointed in him, Mr Letch had not stopped speaking to him.
Mr Daly did not give evidence of ostracism by any other of his co-workers.
In fact, Mr Daly said on the return of his co-workers after the strike, his relationship with another of his co-workers, Mr Ralston, did not change. In cross-examination, Mr Daly accepted that when he was interviewed by the applicant he had said that Mr Ralston was a “great guy”. Mr Daly also said that prior to the time in 2012 when he had worked during a strike by the port service officers, these workers were “good too”.
I find, therefore, that insofar as the applicant relies upon the actions of Mr Fellowes and Mr Letch as comprising ostracism in relation to Mr Daly, that that ostracism was not attributable to the scab poster action which did not take place until 7 to 8 December 2011 - some four to five days later - but was attributable to the fact that Mr Daly worked during the strike.
Further, during cross-examination, Mr Daly had said that between the strike in December 2011 and his participation in the port service officers strike in 2012, he had received no threats, no intimidation and no bullying.
In his evidence-in-chief, Mr Daly said that he had first found out about the existence of the scab posters on 12 December 2011 when the article appeared in the West Australian. Thereafter, Mr Strickland showed Mr Daly a scab poster. Mr Daly said when he saw the poster he put on a brave face and tried to joke about it, but that the impact of reading the scab poster was like acid continually eating away at him. He said that he could not believe that such things could be said about him. Horror, he said, gave way to hurtful resentment and shame that someone had said such a “disgusting thing” about him. Being named and shamed a scab, said Mr Daly, was the worst feeling he had experienced in his life.
Mr Daly also said that he had to go home and pretend to his children that he had had a good day. He said that he did not want his children to know that someone thought so little of him. He said that he was horrified “because whatever you are, your children are, so by saying I’m a scab and the lowest form of life on this planet, it means my children are too”.
Accordingly, I find that Mr Tracey engaged in the scab poster action because the named employees had not participated in the December 2011 strike.
WAS THE DECEMBER 2011 STRIKE “INDUSTRIAL ACTIVITY” FOR THE PURPOSE OF S 346(C) OF THE FAIR WORK ACT
Section 346(c) of the Fair Work Act relevantly provides:
A person must not take adverse action against another person because the other person:
…
(c)…has at any time not engaged…in industrial activity within the meaning of paragraphs 347(c) to (g).
At issue between the parties was the meaning in s 346(c) of the words “engaged…in industrial activity within the meaning of paragraphs 347(c) to (g)”. This is because, whilst Mr Tracey admitted that he had put the scab posters up because he was very annoyed that the named employees had not participated in the December 2011 strike, he contended that it did not follow that s 346(c) had been satisfied by reason of that admission.
The applicant contended that the two day strike in December 2011 was “industrial activity” for the purpose of s 346(c), because it fell within the ambit of s 347(f), which provided as follows:
A person engages in industrial activity if the person:
…
(f)takes part in industrial action.
Section 19(1) of the Fair Work Act defines “industrial action” as follows:
“Industrial action” means action of any of the following kinds:
…
(c)a failure or refusal by employees to attend for work…
So, contended the applicant, because the December 2011 two day strike was an event where the bulk of the VTSOs and small craft masters had failed or refused to attend for work, they had engaged in “industrial action” within the meaning of s 347(f), and it followed that s 346(c) applied.
However, the respondents contended that s 346(c) had no application in relation to the December 2011 strike because the strike was protected industrial action, and para 347(f) does not refer to protected industrial action. It was common ground that the two day strike action was protected industrial action.
The respondents contended that this conclusion flowed from the application of the principles in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, namely, that the construction of a statutory provision should be construed so that it is consistent with the language and purpose of all of the provisions of the statute.
Applying this approach to statutory construction, the respondents observed that s 340 of the Fair Work Act precluded a person from taking adverse action against another person because the person had or had not exercised a “workplace right”. The respondents went on to observe that a “workplace right” was defined in s 341. They drew attention particularly to s 341(2)(c) which provided that participation in “protected industrial action” fell within the definition of a workplace right.
Accordingly, said the respondents, if, as is the case, a person was precluded under s 340 from taking “adverse action” against a person who had exercised their right to participate in, or not participate in, protected industrial action, then there would be, if the applicant’s contention was correct, an overlap between the preclusion in s 340 and s 346. This is because each of those sections would preclude a party from taking adverse action in relation to a person who has or has not taken protected industrial action.
The respondents went on to say that if the applicant’s contention was correct, the same overlap would exist between s 343 and s 348 – each of those sections applies, mutatis mutandis, to a person acting with the intent to coerce another person from engaging in the conduct described in each of s 340 and s 346.
On the other hand, contended the respondents, if the words “industrial action” in s 347(f) were construed to apply only to industrial action which was not “protected industrial action”, then the overlap would be resolved.
I do not accept the respondents’ submissions that the term “industrial action” in s 347(f) is to be construed as referring only to “non-protected” industrial action so that the preclusion in s 346 is to be construed as operating only in respect of non-protected industrial action.
First, it is apparent from s 409 of the Fair Work Act that the term “industrial action” is a wider term than “protected industrial action”. This is because s 409 defines the circumstances when “industrial action” will be “protected industrial action”. This point is made clear by the following observations of Jessup J in BHP Coal (No 3) at [46]:
[I]t seems to be uncontroversial that the definition of “protected industrial action”…is that set out at s 409 of the FW Act. At base, the action must be “industrial action” as defined in s 19 of the Act.
Secondly, the mere fact that there may be more than one statutory provision which may be available to a person to pursue a remedy in respect of the same conduct, is not unique.
It is, therefore, unnecessary to consider the alternative contentions made by the applicant by reference to s 347(b)(ii), (iii) or (v), s 347(c) and/or s 347(d) of the Fair Work Act.
Finding in relation to the applicant’s claim that Mr Tracey contravened s 346 of the Fair Work Act
It follows that I find that by taking the scab poster action, Mr Tracey contravened s 346 of the Fair Work Act by taking adverse action against each of Mr Watson, Mr Daly, Mr Mawbey, Mr Scott and Mr Donaldson-Stiff.
COERCION - SECTION 348 OF THE FAIR WORK ACT
Section 348 of the Fair Work Act provides as follows:
A person must not organise or take, or threaten to organise or take, any action against another person with intent to coerce the other person, or a third person, to engage in industrial activity.
By way of a further or alternative claim to the adverse action claim, the applicant contended, that by engaging in the scab poster action, Mr Tracey took action against each of the named employees with the intent to coerce one or more of the named employees to participate in industrial activity, namely, the proposed 10 December 2011 strike action and the proposed 12 December 2011 strike action.
In further support of this claim, the applicant also alleged at para 32 of the statement of claim that the scab poster action involved “illegitimate, unconscionable and/or unlawful conduct” by reason of one or more of the following matters:
(a)the content of the scab poster;
(b)the prejudice suffered by the named employees;
(c)the scab poster being defamatory of the named employees;
(d)the scab poster action contravening s 346 of the Fair Work Act; and/or
(e)the scab poster action being contrary to well accepted principles of freedom of association, including as recognised in ss 3(e) and 336(b) of the Fair Work Act.
The applicant also invoked the assistance of s 360 and s 361 of the Fair Work Act in respect of the alleged contraventions of s 348 of the Fair Work Act.
In his defence, Mr Tracey denied the allegation that by engaging in the scab poster action, he took action against each of the named employees with the intent to coerce one or more of the named employees to participate in the proposed strike action intended to commence on 10 December and 12 December respectively. Mr Tracey went on to plead that as a matter of law, the further proposed strike action was not “industrial activity” within the meaning of the relevant sections of the Fair Work Act.
Mr Tracey also did not admit the allegations, made in para 32 of the statement of claim, that the scab poster action involved “illegitimate, unconscionable and/or unlawful conduct”.
Did Mr Tracey engage in the impugned conduct with the intent to coerce?
The first question is whether Mr Tracey engaged in the impugned conduct with the intent to coerce one or more of the named employees within the meaning of s 348 of the Fair Work Act.
There was some controversy between the parties as to the meaning of the conduct carried out with “intent to coerce” within the meaning of s 348. Mr Tracey adopted the argument of the second respondent in relation to this question. The parties advised the Court that their research had not found an instance of where a court had considered the words “intent to coerce” in the context of s 348.
The respondents contended that the Court should apply the same construction to those words as the Court has applied in relation to the words “intent to coerce” in s 343 of the Fair Work Act. That section provides as follows:
(1)A person must not organise or take, or threaten to organise or take, any action against another person with intent to coerce the other person, or a third person, to:
(a)exercise or not exercise, or propose to exercise or not exercise, a workplace right; or
(b)exercise, or propose to exercise, a workplace right in a particular way.
(2)Subsection (1) does not apply to protected industrial action.
The respondents contended that there were two elements to the test to be applied in assessing whether the impugned conduct contravened s 348.
The first element, said the respondents, requires the coercing party to have the intention to negate the choice of the other person, leaving that person with no realistic choice but to succumb to the course of action required by the coercing party. This element requires an assessment of the subjective intention of the coercing party.
The respondents referred to a number of authorities in support of their contention. In particular, the respondents relied upon observations by Weinberg J in National Tertiary Education Industry Union v Commonwealth of Australia (2002) 117 FCR 114 at [103]:
The approach to the expression “intent to coerce” taken in each of the authorities set out above makes it clear that what is required is an intent to negate choice, and not merely an intent to influence or to persuade or induce. Coercion implies a high degree of compulsion, at least in a practical sense, and not some lesser form of pressure by which a person is left with a realistic choice as to whether or not to comply. (Original emphasis.)
Weinberg J’s observations were made by reference to s 170NC of the Workplace Relations Act 1996 (Cth), an Act which has subsequently been repealed.
The respondents also referred to a Full Court decision in Schanka v Employment National (Administration) Pty Ltd (2000) 170 ALR 42 (Schanka). That case considered the concept of duress in s 170WG(1) of the Workplace Relations Act. That section precluded a person from applying duress to an employer or employee in connection with an Australian workplace agreement. In Schanka, the Full Court cited with approval the observations of Lord Scarman in Universe Tankships Inc of Monrovia v International Transport Workers Federation [1983] 1 AC 366. The respondents drew particular attention to the following observations of Lord Scarman:
The authorities…reveal two elements in the wrong of duress: (1) pressure amounting to compulsion of the will of the victim; and (2) the illegitimacy of the pressure exerted. There must be pressure, the practical effect of which is compulsion or the absence of choice. Compulsion is variously described in the authorities as coercion or the vitiation of consent. The classic case of duress is, however, not the lack of will to submit but the victim’s intentional submission arising from the realisation that there is no other practical choice open to him.
The second element of the test of whether the impugned conduct contravened s 348 of the Fair Work Act, said the respondents, was whether the impugned conduct undertaken was illegitimate, unconscionable or unlawful. This element, said the respondents, required an objective assessment.
The respondents observed that Lord Scarman had used “coercion” and “vitiation of consent” interchangeably. The respondents also relied on the observations of Gyles J in Finance Sector Union of Australia v Commonwealth Bank of Australia (2000) 106 FCR 16 at [21] to the effect that Schanka provided authoritative guidance as to the meaning of “coerced” and that there was no meaningful difference between duress and coercion. The respondents went on to contend that conduct which amounted to “duress” had to be illegitimate, unconscionable or unlawful.
The applicant contended that the language used in in the Fair Work Act was different to that used in the Workplace Relations Act. The applicant went on to contend that the cases relied on by the respondents were, therefore, distinguishable and the concepts which operated in relation to the construction of those provisions, should not be imported into a consideration of s 348 of the Fair Work Act.
Accordingly, contended the applicant, the words “intent to coerce” in s 348 of the Fair Work Act did not import the stringent requirement of an “intent to negate choice”. Nor did s 348 require that the impugned conduct be illegitimate, unconscionable or unlawful.
After judgment in the case was reserved, judgment in State of Victoria v Construction, Forestry, Mining and Energy Union [2013] FCAFC 160 (State of Victoria) was delivered. That case involved a claim under s 343 of the Fair Work Act by the CFMEU against the State of Victoria, which, as I have said, also proscribes conduct taken with the intent to coerce.
The Federal Minister intervened in the State of Victoria proceeding. Before the Full Court, the Federal Minister made contentions as to the construction of s 343 of the Fair Work Act and as to the status of earlier authorities decided by reference to the Workplace Relations Act. The Federal Minister made submissions to the same effect as was made by the applicant in this case. In fact, the Federal Minister was represented by the same senior counsel who represented the applicant in this case. In State of Victoria, the Federal Minister argued that the primary judge had erred in finding that proof of conduct carried out with “intent to coerce” within the meaning of s 343 of the Fair Work Act, required the establishment of the two elements referred to above. There was, said the Federal Minister, no warrant in the language of s 343 for the importation of those requirements.
The Full Court rejected the Federal Minister’s contentions. The Full Court confirmed that the law in relation to the meaning of conduct which was undertaken with intent to coerce as used in s 343 of the Fair Work Act, was settled. The first element required that the impugned person have the intent to negate choice and the second element required that the conduct be illegitimate, unconscionable or unlawful.
As mentioned, I was not referred to any case which has considered the test for action taken with “intent to coerce” in s 348 of the Fair Work Act. However, in my view, the Court should adopt the same approach in relation to the construction of those words in s 348, as the Full Court in State of Victoria adopted in relation to the same words in s 343.
Section 348 is one of three sections in Pt 3-1 of the Fair Work Act which proscribes action engaged in by a person against another person with “intent to coerce” the other person. The other sections are s 343 and s 355. Section 343 proscribes “coercion” in relation to the exercise or non-exercise of a workplace right and s 355 proscribes “coercion” in relation to the allocation of duties. In identifying the proscribed conduct in each of the three sections, the legislature has used identical language in each section, namely:
A person must not organise or take, or threaten to organise or take, any action against another person with intent to coerce the other person…
There is no justification, in my view, for attributing to the legislature an intention to have identical words in the same Part of the Act construed differently in relation to each of the three sections in which those words appear.
Accordingly, the proscribed action taken with “intent to coerce” in s 348 of the Fair Work Act should be construed as having the same meaning given by the Full Court in State of Victoria to the same words in s 343 of the Fair Work Act.
Mr Tracey’s intent
The next issue, therefore, is whether Mr Tracey’s scab poster action was carried out with the intent to leave each of the named employees with no realistic choice but to participate in the strike action proposed for 10 December and 12 December 2011 respectively; and whether Mr Tracey’s scab poster action was illegitimate, unconscionable or unlawful.
The applicant contended that the focus in s 348 is on the intent of the actor and not the actual outcome.
The applicant contended that the scab poster action was an attempt to prevent a free exercise of will of each of the named employees, whether to strike or not. That conclusion, said the applicant, was supported by the text of the scab poster and the timing of its distribution.
The applicant said that the text of the scab poster made it plain that the poster was directly referable to the exercise of the rights of the named employees. Further, the text of the scab poster also strongly conveyed the author’s disgust at each of the named employee’s individual decision to exercise his rights in a particular manner. The applicant said that it could be inferred that the intent of the poster was to make the further exercise of a right to work during upcoming strikes so untenable as to coerce the named employees to participate in the proposed strike action. The applicant contended that the wording of the poster was such that it could not be construed simply as an attempt to persuade or induce the named employees to go out on strike in future with their co-workers.
The applicant said that the timing of the distribution of the poster, in the immediate lead up to the proposed strike action, supported a strong inference that one of the poster’s principal aims was to achieve compliance by the named employees with the upcoming strike action. The applicant also relied for that inference on the fact that the earlier two day strike action had not been effective in closing down Fremantle port.
Section 360 and s 361 of the Fair Work Act apply in relation to the assessment of this issue. The onus is, therefore, on Mr Tracey to show that in taking the scab poster action he did not intend to coerce any one or more of the named employees into participating in the strikes proposed to occur on 10 December and 12 December 2011 respectively, and thereby negate their choice of going to work during the strikes.
I have already found that the reason Mr Tracey engaged in the scab poster action was because he was angry at the fact that the named employees had worked during the two day strike and had, in his view, undermined his industrial strategy. And also because of the reports he had received that Mr Daly had boasted to his co-workers who had gone on strike, that working during the strike (whilst they were absent) had been the best working days of his life.
Further, I find that, contrary to the submissions of the applicant, the text of the scab poster does not support the contention that Mr Tracey’s intent was to coerce one or more of the named employees into going on strike. This is because the scab poster does not contemplate any redemption for a person who has been branded a scab. To the contrary, the scab poster states that there is “no coming back” from that status. The poster states:
Once so branded a SCAB, they are marked for life. There is no escape. It is infinitely worse than the brand placed upon Cain. It goes with them everywhere, it shadows their every footstep. It never dies, and no wonder, for it is synonym of all that is mean, contemptible and unmanly. It signifies that it is impossible for its owner to descend to lower depths.
Also, I accept the respondents’ contention that the circumstances of the scab poster action do not readily give rise to an inference that Mr Tracey intended to leave each of the named employees with no practical choice but to engage in the strike action. In this case, the scab poster did not threaten retribution in respect of future conduct such as to leave the named employees with no practical choice but to submit. To the contrary, as I have said, these persons had already been condemned by the author of the poster to a status from which there was no redemption, and the dissemination of the poster publicised that view.
In my view, these findings are sufficient for Mr Tracey to rebut the claim made by the applicant that Mr Tracey’s intent in engaging in the scab poster action was to coerce any one or more of the named employees into going on strike on 10 December and 12 December 2011 respectively.
However, I deal, for the sake of completeness, with the other evidence given by Mr Tracey in respect of this question.
In response to his senior counsel’s request to respond to the allegation that his intention in putting up the scab posters was to coerce one or more of the named employees to take part in the upcoming strike action, Mr Tracey made a long response.
In essence, Mr Tracey gave three reasons why, in putting up the posters, he did not intend to coerce any one or more of the named employees to engage in the proposed strikes.
First, Mr Tracey said that a number of the named employees had already terminated his authority as their bargaining agent and, therefore, it was not possible legally for those named employees to engage in protected industrial action. It followed, said Mr Tracey, that if any of these named employees took part in industrial action, it would taint the legality of the industrial action taken by the other employees.
Secondly, Mr Tracey said that after the failure of the two day strike in the inner harbour, he and Mr Cain changed the focus of their industrial strategy from the inner harbour to the outer harbour. The revised strategy was to “lock up and picket” the outer harbour.
Thirdly, Mr Tracey said that he could not see how one could “strong arm” a person who did not want to participate in a strike or a picket line. He said that: “If they choose to work, they choose to work.”
In relation to the first of the matters referred to by Mr Tracey, during cross‑examination, senior counsel for the applicant suggested to Mr Tracey that the niceties of the legality of the proposed strike were not a matter to which Mr Tracey had regard at that time, because Mr Tracey intended to use non-MUA members to form a picket line in order to disrupt or shut down operations at the Kwinana Bulk Terminal as part of his revised industrial strategy. The following exchange occurred:
OK. So I suggest to you your suggestion that you wouldn’t even countenance these scabs working again because they wouldn’t be taking protective action is simply nonsense, isn’t it?...That’s not correct no.
I accept the applicant’s submission that the Court should reject the first explanation given by Mr Tracey.
In my view, the explanation amounted to an ex post facto rationalisation by Mr Tracey. This is because, as senior counsel for the applicant contended, the alternative strategy which Mr Tracey had decided upon was not legal either.
However, the acceptance of the applicant’s contention on this point, is not fatal to Mr Tracey’s case. As I have already held, Mr Tracey’s intention in taking the scab poster action was to punish the named employees in respect of their past action, by a means which did not contemplate their redemption from the status of scab. It may also have been intended to deter other MUA members from not working during the proposed strike, but this allegation was not made in the applicant’s statement of claim. In any event, such an intention would not have satisfied the stringent “intent to coerce” requirement of s 348 that the coercing party leave the coerced party with no realistic choice but to go on strike.
Mr Tracey’s second explanation why his conduct was not carried out with the impugned intent, was that there was a switch in industrial strategy to concentrate upon disrupting the operations of the outer harbour. Mr Tracey’s evidence on this point was corroborated by Mr Pearce who said that during his telephone conversation with Mr Tracey on 8 December 2011, he threatened disruption to the operation of the outer harbour.
It follows that I dismiss the applicant’s claim brought under s 348 of the Fair Work Act.
Was the scab poster action by Mr Tracey illegitimate, unconscionable or unlawful conduct?
In order to meet the contingency that the elements to be proved to establish a contravention of s 346 were as contended by the respondents, the applicant pleaded in the statement of claim that the scab poster conduct of Mr Tracey was illegitimate, unconscionable or unlawful on the following grounds:
(a)the content of the scab poster;
(b)the prejudice suffered by the affected employees;
(c)the scab poster being defamatory;
(d)the scab poster action contravening s 346 of the Fair Work Act; and
(e)the scab poster being contrary to the well accepted principles of freedom of association as recognised in s 3(e) and s 336(b) of the Fair Work Act.
In light of the findings I have made in relation to Mr Tracey’s intent in engaging in the scab poster action, it is unnecessary to deal with this issue. However, by reason of my findings that the scab poster action contravened s 346 of the Fair Work Act, it would have followed that the scab poster action would have been categorised as unlawful conduct.
THE CASE MADE AGAINST THE MUA
The case by reference to s 793 of the Fair Work Act
The applicant alleged that the MUA was liable for the scab poster action by reason of the operation of s 793 of the Fair Work Act, in that Mr Tracey engaged in the impugned conduct as an officer or employee of the MUA within the scope of his actual or apparent authority.
Section 793(1) of the Fair Work Act relevantly provides that:
(1)Any conduct engaged in by a body corporate:
(a)by an officer, employee or agent (an official) of the body within the scope of his or her actual or apparent authority;…
is taken for the purposes of this Act and the procedural rules, to have been engaged in also by the body.
The applicant also relied on s 363 of the Fair Work Act to contend that the impugned conduct of Mr Tracey is taken to be conduct of the MUA.
The MUA admitted that in disseminating the scab posters Mr Tracey had acted within the scope of his apparent authority, as an officer of the MUA, and that the MUA was, therefore, liable for that aspect of the scab poster action. I find that the scope of Mr Tracey’s apparent authority also extended to organising the publication and dissemination of the posters. This is because it was by the dissemination of the posters that the objective intended by the production of the posters, namely, the expression of anger and vengeance, was achieved. The action of organising the production was necessarily a preliminary and ancillary act to the act of dissemination, and, therefore, I find that that act was also within the scope of the apparent authority of Mr Tracey. In any event, I have also found that the scab poster action was within the actual authority of Mr Tracey as an officer of the MUA.
It is unnecessary, therefore, to make findings in relation to liability by reference to s 363 of the Fair Work Act.
Accordingly, I find that the MUA is liable, by reason of the operation of s 793(1) of the Fair Work Act, for the contravention of s 346 of the Fair Work Act, in respect of the adverse action which I have found was taken by Mr Tracey in respect of each of Mr Daly, Mr Scott, Mr Donaldson-Stiff, Mr Mawbey and Mr Watson.
Was the MUA directly liable for the scab poster action carried out by Mr Tracey?
Notwithstanding that the MUA had admitted that the dissemination of the scab posters by Mr Tracey was conduct within the scope of his apparent authority as an officer of the MUA, and was, therefore, conduct to be taken as the conduct of the MUA, the applicant persisted with its claim that the MUA was directly liable for the scab poster action.
There were two limbs to the applicant’s contention of direct liability.
First, the applicant contended that Mr Tracey acted in relation to negotiations for the new enterprise bargaining agreement for the VTSOs and the small craft masters as a representative of the MUA, and not as an unaligned individual bargaining agent.
The second limb of the contention was that Mr Cain is to be regarded as the directing mind of the MUA in Western Australia, and that he knew of, and authorised Mr Tracey, to undertake the scab poster action, with the consequence that the scab poster action is the action of the MUA.
The applicant clearly established the first limb of its contention. There were a number of items of evidence which showed that the negotiations were in reality conducted by Mr Tracey as a representative of the MUA, rather than as an unaligned individual. For example, the evidence showed that the MUA encouraged the VTSOs and small craft masters to pay union fees, notwithstanding that the MUA did not have coverage in relation to that group of employees. There was also evidence that the MUA paid the legal fees for Mr Tracey’s representation at the hearings before the Fair Work Commission for the protected action ballots. Further, in his email communications and reports in respect of the negotiations, Mr Tracey used MUA insignia and referred to himself as an officer of the MUA. Also, in its newspaper, the MUA claimed that it represented the VTSOs and small craft masters in their negotiations with the FPA, and referred to those negotiations as MUA campaigns. Also, in his interview with Mr Kerr, the journalist, Mr Tracey referred to the claims of the VTSOs and small craft masters as “MUA claims”.
At trial, the MUA did not seriously dispute that Mr Tracey acted as a MUA representative in relation to the relevant negotiations. The admission, in my view, properly made by the MUA, that Mr Tracey was acting within his apparent authority as an officer of the MUA in disseminating the scab posters was, in effect, an acknowledgement of the fact that Mr Tracey acted as a representative of the MUA in relation to the negotiations for the enterprise bargaining agreement on behalf of the VTSOs and small craft masters.
As to the second limb of the applicant’s contention, I find that Mr Cain was the state secretary for the Western Australia branch of the MUA, and thereby the most senior official in the Western Australia branch of the MUA. I find on that basis that Mr Cain was the directing mind of the MUA in Western Australia for the purposes of applying the direct liability doctrine. For the following reasons, I find that Mr Cain authorised Mr Tracey to engage in the scab poster action.
First, I find that Mr Cain was fully aware of the progress of the negotiations that Mr Tracey was conducting on behalf of the VTSOs and small craft masters and the importance of strike action as a component of the industrial strategy being pursued by Mr Tracey. This finding is based on the following evidence.
Mr Tracey gave evidence that he reported to Mr Cain and kept Mr Cain apprised generally of the work that he engaged in as a MUA official. Mr Tracey also gave evidence that he had breakfast with Mr Cain on 6 December 2011 to discuss the direction of the industrial strategy to be pursued following the failure of the two day strike. Further, thereafter, Mr Cain participated directly in the negotiations on behalf of the VTSOs and small craft masters, with Mr Leatt-Hayter acting on behalf of the FPA. During the course of those negotiations on 8 December 2011, Mr Cain said to Mr Leatt-Hayter that he was not happy that the FPA was “running the port using scabs”.
It follows that I find by 6 December 2011, at the latest, Mr Cain was fully aware that the strike had failed and that the reason why the strike had failed was that a number of employees had worked during the strike.
Secondly, I infer and find that by the time of their breakfast meeting on 6 December, Mr Tracey and Mr Cain were each very angry and determined to take vengeance against the non-strikers; and that during the breakfast meeting Mr Cain and Mr Tracey decided that a scab poster which named the persons who had worked during the strike should be published and distributed and that Mr Tracey should give effect to that decision. The inference is supported by the following matters.
It is inconceivable that at their breakfast meeting on 6 December 2011, Mr Tracey and Mr Cain would not have discussed the response the MUA should make to the fact that the strike failed because a small number of employees worked during the strike. This is particularly the case because they were faced with the situation where, according to Mr Tracey, there had not been “scabbing” on the wharf for 30 years. Mr Cain and Mr Tracey would have seen this as a threat to the authority of the MUA and would have felt compelled in that situation to assert the power and wrath of the MUA.
Further, Mr Tracey told Mr Pearce during their telephone conversation on 8 December 2011, that there had not been scabs on the wharf for 30 years, that the scab posters were MUA posters, and that “we named them”. Mr Tracey’s reference to the fact that there had not been scabs on the wharf for 30 years and his statement that “we named them” suggests a collective decision was made as a vengeful response to the fact that the authority and discipline of the MUA had been challenged.
Further, it was only on 6 December 2011, that Mr Tracey first came into possession of the posters. Mr Tracey’s evidence that it was purely by coincidence that he obtained possession of the posters on 6 December 2011 when he happened to pass Mr Elliot on the stairs at the MUA office, is not plausible.
In addition, Mr Tracey gave evidence that Mr Cain and the executive of the MUA knew that he had the posters during the two days when he put them up. I infer from the fact that, although Mr Cain knew that Mr Tracey had the posters, he did not stop Mr Tracey from putting up the posters, that, in putting up the posters, Mr Tracey was acting with Mr Cain’s consent.
As I have mentioned, I find that the reason Mr Cain authorised Mr Tracey to organise the publication and distribution of the posters was that he, like Mr Tracey, was angry at the failure of the strike and the emergence of “scabs” on the waterfront after an absence of 30 years and needed to, and wanted to, respond firmly to that circumstance.
In making this finding, I observe that Mr Cain did not give evidence. No explanation was given by the MUA for the failure to call Mr Cain to give evidence. Accordingly, I infer that such evidence that Mr Cain would have been able to give on this issue, would not have assisted the MUA. This assists in drawing the inference which I have drawn. I am also aware that this finding is a serious finding against Mr Cain and that, accordingly, s 140(2) of the Evidence Act applies. However, I am comfortably satisfied on the evidence that Mr Cain authorised Mr Tracey to carry out the scab poster action.
For the reasons set out above, I find that Mr Cain authorised Mr Tracey to organise the publication and dissemination of the scab posters.
Accordingly, I find that the MUA is directly liable for the contravention of s 346 of the Fair Work Act in respect of Mr Tracey’s scab poster action.
By reason of my finding in respect of Mr Tracey’s direct liability, it is not necessary to deal with the applicant’s claim that Mr Tracey was knowingly involved in the MUA’s contravention.
PENALTY AND COMPENSATION
The applicant sought orders for the payment of penalties and, also, for the payment of compensation to each of the named employees pursuant to, in particular, s 545(2)(b) of the Fair Work Act which provides for an award of compensation for loss that a person has suffered because of a contravention of the Fair Work Act.
The parties did not make submissions on penalty on the basis that they would await the findings of the Court.
However, in relation to the payment of compensation, the applicant identified, in his submissions, a specific amount of compensation which should be paid to each of the named employees. The parties also addressed the question of whether Pt 2 of the Civil Liability Act 2002 (WA) would limit the power of the Court to award compensation for personal injury under s 545 of the Fair Work Act. The submissions were, of course, made without knowing the findings upon which any argument that the named employees had suffered a compensable loss might be based. Thus, for example, the applicant’s submissions proceeded on the assumption, amongst other things, that the Court would find that each of the named employees had suffered psychiatric damage. I did not make such a finding.
The Court would, therefore, be assisted by the parties addressing submissions on the question of whether, on the basis of the findings the Court has made, any compensation and, if so, the quantum thereof, is payable to the named employees, as well as any effect of Pt 2 of the Civil Liability Act (WA).
Accordingly, I will hear from the parties in respect of the filing of submissions both in relation to the question of penalty and any compensation payable to the named employees.
I will also direct the parties to produce a minute of orders which reflects the findings of the Court in these reasons.
I certify that the preceding three hundred and sixty (360) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Siopis. Associate:
Dated: 6 May 2014
22
4
2