Fair Work Ombudsman v Roach (The Melbourne Quarter Case) - [2023] FCA 156

FEDERAL COURT OF AUSTRALIA
Fair Work Ombudsman v Roach (The Melbourne Quarter Case) [2023] FCA 156

File number: VID 23 of 2021

Judgment of: WHEELAHAN J

Date of judgment: 3 March 2023

Catchwords: INDUSTRIAL LAW – alleged contraventions of ss 348 and 349 of the Fair Work Act 2009 (Cth) by union and union representative at the site of the Melbourne Quarter project – applicant claimed that the representative told a caulking subcontractor during a site induction that the subcontractor could not work on the site unless he paid outstanding union fees – where evidence of key witnesses differed as to what was said during the induction – examination of contested evidence – evidence of the employees of the subcontractor generally accepted – contraventions established

Legislation:
Evidence Act 1995 (Cth) ss 64(4), 97, 140

Fair Work Act 2009 (Cth) ss 336, 343, 345 347, 348, 349, 361, 361, 701, 793

Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth), Schedule 1, Part 3, item 323

Cases cited:
Adcock v Blackmores Ltd [2016] FCCA 265; 259 IR 209

Adcock v Blackmores Ltd [2016] FCA 893

Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (The Quest Apartments Case) [2017] FCA 1398

Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (The Syme Library Case) [2018] FCA 1142

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

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

Australian Building and Construction Commissioner v Ravbar [2018] FCA 1196

Australian Building and Construction Commissioner v Roach (The Melbourne Quarter Case) (Ruling No 1) [2021] FCA 1153

Australian Building and Construction Commissioner v Roach (The Melbourne Quarter Case) (Ruling No 2) [2021] FCA 1210

Australian Federation of Air Pilots v Regional Express Holdings Ltd [2021] FCAFC 226; 290 FCR 239

Australian Red Cross Society v Queensland Nurses’ Union of Employees [2019] FCAFC 215; 273 FCR 332

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

Banditt v The Queen [2005] HCA 80; 224 CLR 262

Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336

Broadhurst v The Queen [1964] AC 441

Browne v Dunn (1893) 6 R 67

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Competition and Consumer Commission [2007] FCAFC 132; 162 FCR 466

Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2015] FCAFC 25; 230 FCR 298

Esso v Australian Workers’ Union [2017] HCA 54; 263 CLR 551

Forrest v Australian Securities and Investments Commission [2012] HCA 39; 247 CLR 486

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

Harris v Warre (1879) 4 CPD 125

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

R v Jovanovich (1997) 42 NSWLR 520

R v Uhrig (unreported, NSW Court of Criminal Appeal, 24 October 1996)

Seltsam v McGuiness [2000] NSWCA 29; 49 NSWLR 262

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

State Rail Authority of New South Wales v Earthline Constructions Ltd (in liq) [1999] HCA 3; 160 ALR 588

Swain v Waverley Municipal Council [2005] HCA 4; 220 CLR 517

Tomvald v Toll Transport Pty Ltd [2017] FCA 1208

Watson v Foxman (1995) 49 NSWLR 315

Division: Fair Work Division

Registry: Victoria

National Practice Area: Employment and Industrial Relations

Number of paragraphs: 245

Date of hearing: 21-23 September, 4-7 October 2021

Counsel for the Applicant: Mr M Follett

Solicitor for the Applicant: Lander & Rogers

Counsel for the Respondents: Mr P Boncardo and Ms E Beljic

Solicitor for the Respondents: Maurice Blackburn

ORDERS

VID 23 of 2021

BETWEEN:
FAIR WORK OMBUDSMAN

Applicant

AND:
JASON ROACH

First Respondent

CONSTRUCTION, FORESTRY, MARITIME, MINING AND ENERGY UNION

Second Respondent

ORDER MADE BY:

WHEELAHAN J

DATE OF ORDER:

3 MARCH 2023

THE COURT ORDERS THAT:
1.By 4.00 pm on 17 March 2023, the practitioners for the parties are to confer and submit to the Chambers of the Hon Justice Wheelahan via email proposed draft orders in relation to the further conduct and disposition of this proceeding.
2.If the parties are unable to agree on a single form of draft orders, then by 4.00 pm on 17 March 2023, each party is to submit their respective proposed draft orders.

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

REASONS FOR JUDGMENT
WHEELAHAN J:
Introduction

The applicant seeks declarations and the imposition of civil penalties in respect of claimed contraventions by the respondents of s 348 and s 349 of the Fair Work Act 2009 (Cth) (FW Act). The proceeding was commenced by the Australian Building and Construction Commissioner as applicant. On 12 December 2022, and following the commencement of the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth), Schedule 1, Part 3, item 323, by order of the Court the name of the applicant was changed to the Fair Work Ombudsman who by operation of item 323 was substituted for the Commissioner as a party to the proceeding. See also FW Act, s 701, which provides that the Fair Work Ombudsman is a Fair Work Inspector.
The respondents are, first, Mr Roach, who was at the relevant time employed by Lendlease Building Contractors Pty Ltd (Lendlease). Lendlease was engaged in the construction of a development at Docklands in Melbourne known as the Melbourne Quarter project. Mr Roach was a health and safety representative at the site, and was a delegate of the second respondent, the Construction, Forestry, Maritime, Mining and Energy Union (the Union).
The essence of the applicant’s case relates to two individuals, Mr Brendon Watterston and Mr Stephan Simone, who attended the site on 20 April 2020 to undertake caulking work. The case turns on what was said by Mr Roach to Mr Watterston on site on that day in one conversation. The applicant alleges that following an induction at the site conducted by Lendlease, Mr Roach threatened to prevent, or prevented, Mr Watterston from working at the site on that day on the ground that he had not paid a fee of about $500 that was claimed to be due to the Union. The applicant also alleges that by his words and conduct Mr Roach represented to Mr Watterston that in order to perform work on the project, he had to pay membership subscriptions, levies, or dues to the Union. Mr Roach and the Union deny the applicant’s claims.
As a result of Covid-19 related restrictions, the hearing of the proceeding took place remotely over a number of days on Microsoft Teams, with counsel, witnesses, and the Court, in separate locations. During the course of the hearing, there were some challenges presented by equipment malfunctions and streaming issues. The hearing went beyond the estimated duration, but this is no criticism of counsel, who conducted their respective cases as efficiently as the circumstances allowed, and who are to be commended for the assistance that they gave to the Court.
The legislation
Before turning to the background to this proceeding, I will refer to the statutory provisions that the applicant claims the respondents contravened, namely s 348 and s 349 of the FW Act. The interpretation and operation of the corresponding provisions in s 343 and s 345 of the FW Act were considered by the Full Court in Australian Federation of Air Pilots v Regional Express Holdings Ltd [2021] FCAFC 226; 290 FCR 239 (Bromberg, Kerr and Wheelahan JJ) (AFAP v Rex) at [126], [128] and [170].
Section 348 of the FW Act provides –
348 Coercion
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.
Section 348 refers to “intent to coerce”. Coercion itself requires the satisfaction of two elements: (1) the negation of choice; and (2) the use of unlawful, or illegitimate, or unconscionable means to exert pressure to negate the choice: Australian Building and Construction Commissioner v Hall [2018] FCAFC 83; 261 FCR 347 (ABCC v Hall) at [25] (Tracey, Reeves and Bromwich JJ), concerning the corresponding provision in s 343; cf, Esso v Australian Workers’ Union [2017] HCA 54; 263 CLR 551 at [61] (Kiefel CJ, Keane, Nettle and Edelman JJ). The intent aspect of the expression “intent to coerce” in s 348 applies to the negation of choice element referred to in the authorities, but not to the use of unlawful, or illegitimate, or unconscionable means, which is an objective element: ABCC v Hall at [25]-[26]; Newton v Australian Postal Corporation (No 2) [2019] FCA 2192; 292 IR 396 (Newton) at [27]-[29] (Bromberg J). As Bromberg J explained in Newton at [29], the illegitimate or unconscionable means must be proven by an applicant. The evidentiary presumption in s 361(1) of the FW Act applies only to the negation of choice element of an allegation of a threat to take action with an intent to negate choice by unlawful, illegitimate of unconscionable means for the purposes of an alleged contravention of s 348, and extends to a threat to take action: Australian Building and Construction Commissioner v Molina [2020] FCAFC 97; 277 FCR 223 at [51]-[52], [91]-[93] (Bromberg, Colvin and Abraham JJ).
Section 349 of the FW Act provides –
349 Misrepresentations
(1)A person must not knowingly or recklessly make a false or misleading representation about either of the following:
(a)another person’s obligation to engage in industrial activity;
(b)another person’s obligation to disclose whether he or she, or a third person:
(i)is or is not, or was or was not, an officer or member of an industrial association; or
(ii)is or is not engaging, or has or has not engaged, in industrial activity.
Note: This subsection is a civil remedy provision (see Part 4-1).
(2)Subsection (1) does not apply if the person to whom the representation is made would not be expected to rely on it.
The phrase “engage in industrial activity” appearing in s 349(1)(a) is defined by s 347 to include becoming or remaining a member of a union (s 347(a)) and paying a fee to a union (s 347(b)(vi)).
The word “obligation” is not defined in the FW Act. However, it has been held that having regard to the objects of Part 3-1 of the FW Act, which include the protection of freedom of association, the word “obligation” in s 349(1) is not to be narrowly construed so as to refer only to a legal obligation: Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (The Quest Apartments Case) [2017] FCA 1398 at [45] (Tracey J). An illustration of the application of this interpretation is Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (The Syme Library Case) [2018] FCA 1142, where Tracey J held that that a representation that there was an obligation on a contractor to enter into an enterprise agreement approved by the Union before commencing work on city sites was a misrepresentation that engaged s 345 and s 349 of the FW Act.
The “knowingly or recklessly” element in s 349 is concerned with the false or misleading quality of the representation, not the act of making the representation: AFAP v Rex at [126] (Bromberg, Kerr and Wheelahan JJ). What is required is that a false or misleading representation is made knowing it to be false or being recklessly indifferent as to its truth: Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2015] FCAFC 25; 230 FCR 298 at [161] (Logan, Bromberg and Katzmann JJ). An allegation that a person made statements knowing them to be false invokes the idea that is expressed in the tort of deceit: Forrest v Australian Securities and Investments Commission [2012] HCA 39; 247 CLR 486 at [22] (French CJ, Gummow, Hayne and Kiefel JJ); see also, Banditt v The Queen [2005] HCA 80; 224 CLR 262 at [1]-[3] (Gummow, Hayne and Heydon JJ) in relation to the term “reckless”.
The pleaded case
It was not in dispute that Mr Watterston and Mr Roach spoke to each other on the morning of 20 April 2020 in the lunchroom at the site following the conclusion of an induction session conducted by Lendlease. The exact circumstances of the exchange, and the words spoken were in dispute. By the statement of claim the applicant alleged –
7.After the conclusion of the induction at around 8.30 am, Watterston and Simone proceeded to the lunchroom and:
(a)Roach called Watterston and Simone over to where he was and asked them to take a seat;
(b)Roach asked Watterston and Simone whether they had their “cards”; and
(c)Roach checked certain details associated with the cards provided by Watterston and Simone on his mobile phone and by making a telephone call.
8.After checking the details as alleged in paragraph 7(c) herein, a conversation between Roach and Watterston to the following effect then occurred:
Roach: “it says you owe $500”;
Watterston: “I don’t want to pay that”;
Roach: “well if you don’t pay the $500 you can’t work here”;
Watterston: “Really, I can’t work here?”
Roach: “yep”;
Watterston: “So you’re telling me that unless I pay that $500, I can’t work on site?”; and
Roach: “Nope, not until you pay your $500”.
The legal consequences of the words that the applicant alleged Mr Roach spoke to Mr Watterston, being contraventions of s 348 and s 349 of the FW Act, were alleged as follows –
Section 348 of the FW Act
9.In acting as alleged in paragraph 8 herein, Roach:
(a)threatened to prevent Watterston performing any work on the Project that day; and/or
(b)prevented Watterston performing any work on the Project that day.
PARTICULARS
The threat was partly oral and partly implied. Insofar as it was oral, it was constituted by the things said by Roach as alleged in paragraph 8 herein. Insofar as it was implied, it was implied from the matters alleged in paragraphs 7-8 herein and the surrounding circumstances, including those particularised under paragraph 10 herein.
Roach prevented Watterston performing work as he did not pay the fee and hence, he was prevented by Roach from performing any work at the Project that day and he subsequently left the site.
10.Roach acted as alleged in paragraph 8 herein with the intention of negating the choice (and thereby coercing) Watterston to pay membership subscriptions, levies and/or dues to the CFMMEU and thereby engage in industrial activity within the meaning of section 347(b)(vi) of the FW Act.
PARTICULARS
The intention to negate the choice of (and thereby coerce) Watterston is to be inferred from the whole of the surrounding circumstances, including in particular the following:
(i)the matters alleged in paragraphs 7-8 above;
(ii)the likely consequence to Watterston (and his business) of being prevented access to the Project to perform work;
(iii)the fact that Roach did not say anything similar to Simone, after Simone produced a CFMMEU membership card indicating that he was a “Retired Member”;
(iv)his role as a delegate for the CFMMEU at the Project; and
(v)his presence in the lunchroom immediately after the induction of Watterston and Simone onto the Project that morning.
Further and to the extent necessary, the applicant also relies on sections 360 and 361 of the FW Act.
11.The action threatened and/or taken as alleged in paragraph 9 herein was:
(a)unlawful; and/or
(b)illegitimate; and/or
(c)unconscionable.
PARTICULARS
The action was unlawful to the extent that it amounted to a contravention of section 349 of the FW Act, and to the extent that it amounted to an interference in the performance of Melbourne Caulking’s contract with Geschke, or Watterston’s contract of employment with Melbourne Caulking.
The action was illegitimate for the above reason and because Roach had no legal right to prevent Watterston attending the Project to perform work, and because it was inconsistent with the principles of freedom of association, including the freedom to become, or not become, a fully financial member of the CFMMEU.
The action was unconscionable in that it was inconsistent with norms and standards of conduct in an industrial setting, including the principles of freedom of association, and because it was disproportionate to any legitimate interest in the demands of Roach which the relevant threats/action supported.
12. By reason of the matters alleged in:
(a)paragraphs 9(a), 10 and 11 herein, Roach contravened section 348 of the FW Act; and/or
(b)paragraphs 9(b), 10 and 11 herein, Roach contravened section 348 of the FW Act.
The applicant relied on the rebuttable presumption in s 361 of the FW Act to establish that Mr Roach made the threat for the impugned purpose of intending to coerce Mr Watterston to pay membership subscriptions, levies and/or dues to the Union.
In relation to the claim of contravention of s 349 of the FW Act by making misrepresentations, the applicant made the following allegations in the statement of claim –
Section 349(1) of the FW Act
13.In acting as alleged in paragraph 8 herein, Roach made a representation to Watterston to the effect that in order to perform work on the Project, including the work he had attended to perform that day, he had to pay membership subscriptions, levies and/or dues to the CFMMEU.
PARTICULARS
The representation was partly oral and partly to be implied. To the extent it was oral, it was constituted by the conversation alleged in paragraph 8 herein.
To the extent it was implied, it was implied from Roach’s conduct at or around the time as alleged in paragraphs 7 and 8 herein and the context in which the conversation occurred, including occurring immediately after Watterston’s first site induction on the Project.
14.The representation alleged in paragraph 13 herein was about the obligation of Watterston to pay membership subscriptions, levies and/or dues to the CFMMEU and thereby engage in industrial activity within the meaning of section 347(b)(vi) of the FW Act.
15.The representation alleged in paragraph 13 herein was false and/or misleading.
PARTICULARS
There was no contractual, legislative or other obligation or requirement on Watterston to pay fees to the CFMMEU and thereby become a financial member of the CFMMEU, before being entitled or allowed to perform work on the Project.
16.Roach made the representation alleged in paragraph 13 herein:
(a)knowing that it was false and/or misleading; or
(b)reckless as to whether it was false or misleading.
PARTICULARS
Roach’s state of mind is to be inferred from his status as a CFMMEU member and CFMMEU delegate and his work history in the building and construction industry.
Further particulars will be provided closer to trial.
17.By reason of the matters alleged in paragraphs 13-16 herein, Roach contravened section 349(1) of the FW Act.
The applicant relied on s 363 and s 793 of the FW Act to allege that the Union was liable for the actions of Mr Roach.
By their amended defences, the respondents denied the conversation alleged in [7] of the statement of claim, and alleged that Mr Roach and a Mr Jones, who was a health and safety representative of the plumbers at the site, spoke to workers as a group following the conclusion of the Lendlease induction, following which they proceeded to check the workers’ cards. In relation to Mr Watterston, the amended defences at [7] alleged the following –
…
r.The First Respondent proceeded to check Watterston’s Incolink, CBUS and Coinvest details via applications on his mobile phone, which show whether people are properly registered with each and whether contributions on their behalf are paid up;
s.The applications showed that Watterson’s Incolink, CBUS and Coinvest contributions were up to date;
t.Because Watterston said his union ticket was outdated, the First Respondent checked the financial status of his membership on the Second Respondent’s website;
u.The website showed that Watterston’s financial status was ‘invalid’;
v.The First Respondent telephoned the Second Respondent’s offices to ask what this meant and was advised that Watterston had called and cancelled his union ticket in February 2020;
w.The First Respondent told Watterston that the union was saying he cancelled his ticket in February;
x.Watterston told the First Respondent he had paid $200 to reinstate his membership a couple of days ago;
y.The First Respondent told this to the person he was speaking to at the Second Respondent’s offices and was advised that they had no record of Watterston paying $200;
z.The First Respondent asked Watterston if he could remember who he paid it to and Watterston said that he could not;
aa.The First Respondent said to Watterston that he should ring or go into the union office because they were telling him he had cancelled his ticket in February and that the $200 was missing as the union office had no record of him paying it;
bb.Watterston said he was ‘sick of you [c*nts]’ and told the First Respondent to ‘Give me my [f*cking] tickets’;
cc.Watterston then snatched his tickets from the table and left the lunchroom;
dd.After Watterston left the lunchroom, the First Respondent continued checking tickets of other Group members.

The respondents denied that Mr Roach made the representation alleged, but in the alternative alleged at [16(c)] a defence relying on s 349(2) of the FW Act –
further and in the alternative, says that Watterston would not be expected to rely on the misrepresentation pleaded in paragraph 13 and that in the event that the representation was contrary to s 349(1) of the Fair Work Act 2009 (Cth) (FW Act), s 349(2) of the FW Act would determine that s 349(1) of the FW Act would not apply.
In its amended defence, the Union denied that Mr Roach had contravened s 348 or s 349 of the FW Act, and otherwise made no admissions as to its own liability for the actions of Mr Roach. However, in submissions counsel for the respondents accepted that if the contraventions by Mr Roach were established, then the Union would be liable as a result of the attribution of his conduct and state of mind to the Union by s 363 or s 793 of the FW Act.
Background
Mr Watterston and Mr Simone were employed by a company, Melbourne Caulking Pty Ltd, which Mr Watterston described in evidence as a partnership between him, Mr Simone, and their wives.
Mr Watterston had been a member of the Union for a number of years. On 24 September 2019, Mr John Setka, the State Secretary of the Construction and General Division of the Union, sent an email to Mr Watterston with a reminder that membership fees of $1001 were due by 1 October 2019. The email stated that if Mr Watterston was no longer working in the industry, he should contact the Union’s head office, or reply to the email in order to place his membership on hold. On 25 September 2019, Mr Watterston’s wife sent an email on his behalf stating that since the beginning of the year he was no longer working in the industry, and that he would no longer be a union member. Mr Watterston gave evidence that he was then required to make a payment to the union of $412.50, which was made on 28 October 2019, and which was his last payment.
On 9 April 2020, Melbourne Caulking was engaged by Geschke Pty Ltd (Geschke Plumbing), which was a plumbing subcontractor of Lendlease, to perform some caulking work at the Melbourne Quarter project site. At about the time of the engagement, Mr Watterston spoke to Mr Shannon Silver of Geschke Plumbing concerning whether the absence of union membership presented a problem. Following this conversation, Mr Silver sent an email to Mr Watterston stating that he had confirmed with Lendlease “that being in the union is not a necessity in order to gain access to the site”. Arrangements were made by Geschke Plumbing for Mr Watterston and Mr Simone to attend the site at 7.30 am on Monday 20 April 2020, and for them to attend an induction, which they did. What occurred immediately following the induction is contentious and is the subject matter of the applicant’s claims of contravention of the FW Act by the respondents.
The evidence
Seven witnesses were called. All witnesses gave viva voce evidence-in-chief and were cross-examined. The following witnesses were called by counsel for the applicant –
(a)Mr Watterston;
(b)Mr Simone;
(c)Mr Bradley Golz, who was an employee of Geschke Plumbing; and
(d)Ms Ruth Dunsby, who was at the relevant time an inspector employed by the Australian Building and Construction Commission (the Commission).
Counsel for the respondents called three witnesses –
(a)Mr Roach, the first respondent;
(b)Mr Kerry Jones, who was an occupational health and safety representative for the plumbers at the site; and
(c)Ms Bridie Murphy, a solicitor who had acted for Mr Roach when the matter was investigated by Lendlease and the Commission.
Telephone records
Before addressing the evidence of the witnesses, I will set out the agreed facts concerning telephone calls made by Mr Watterston, Mr Golz, Mr Silver, and Mr Roach on 20 April 2020, based upon telephone records –
7:09 amWatterston called Golz for 103 seconds (1 minute, 43 seconds)
7:12 amGolz called Watterston for 22 seconds
7:22 amSilver called Golz for 153 seconds (2 minutes and 33 seconds)
8:24 amRoach called the CFMMEU office for 75 seconds (1 minute, 15 seconds)
8:28 amWatterston called Golz for 45 seconds
8:29 amGolz called Silver for 3 seconds (missed call)
8:35 amSilver called Golz for 121 seconds (2 minutes, 1 second)
8:37 amWatterston called Silver for 5 seconds (missed call)
8:38 amSilver called Watterston for 137 seconds (2 minutes, 17 seconds)
9:01 amWatterston called Golz for 81 seconds (1 minute, 21 seconds)
9:09 amGolz called Roach for 155 seconds (2 minutes, 35 seconds)
9:37 amGolz called Silver for 77 seconds (1 minute, 17 seconds)
9:41 amGolz called Watterston for 164 seconds (2 minutes, 44 seconds)
9:45 amGolz called Silver for 3 seconds (missed call)
9:59 amSilver called Golz for 86 seconds (1 minute, 26 seconds)
11:25 amSilver called Golz for 504 seconds (8 minutes and 24 seconds)
11:34 amSilver called Golz for 253 seconds (4 minutes and 13 seconds)
2:37 pmGolz called Silver for 343 seconds (5 minutes and 43 seconds)
3:08 pmSilver called Golz for 826 seconds (13 minutes and 46 seconds)
The objective evidence relating to the time of the various telephone calls is relevant to the evaluation of the witness evidence.
Evidence of Mr Watterston
Mr Watterston – evidence-in-chief
Mr Watterston stated that he and Mr Simone attended an induction at the site at 7.30 am on 20 April 2020. The induction was undertaken by a representative of Lendlease, and he and Mr Simone were amongst nine inductees. Mr Watterston stated that the induction went for a good three quarters of an hour, and concluded at around 8.15 am or 8.20 am.
Mr Watterston stated that at the conclusion of the induction he and Mr Simone made their way towards the exit to the induction room. He stated that Mr Roach was standing in front of them, by himself, and said, “Boys go take a seat up there”, and pointed them towards some tables at the back of a large lunchroom that was outside the induction room. Mr Watterston and Mr Simone then took seats at the table, sitting diagonally opposite each other. Mr Watterston stated that Mr Roach then went off somewhere for a while before returning and stating, “Let’s see your cards”. Mr Watterston explained that on jobsites they always handed over CBUS, Incolink, CoINVEST, working at heights, and union cards, and that he and Mr Simone each kept these cards in a small folder that had been supplied some years earlier by the Union. Mr Simone gave his cards to Mr Roach first, who stepped away from the table towards a corner of the room and checked them. Mr Roach then told Mr Simone, “Yes, you’re good“.
Mr Watterston stated that Mr Roach then asked for his cards, in response to which Mr Watterston initially told Mr Roach that he did not think he had to provide a union card. He explained in evidence that he said this as a result of his conversation with Mr Silver of Geschke Plumbing, who had told him that he did not have to be a union member to work on the site. Mr Roach responded to Mr Watterston by stating “I don’t know who told you that”, following which Mr Watterston “ummed and ahhed a bit about it with Steve” before giving Mr Roach his cards which Mr Roach took before sitting at a nearby table in the room. Mr Watterston stated that Mr Roach attempted to check the cards using an app on his phone, and then made a telephone call.
After Mr Roach finished the telephone call, he returned to Mr Watterston and told him that he had to pay the sum of $500, and he returned the cards. Mr Watterston stated that he told Mr Roach something along the lines, “Well, I just – we made a payment not long ago about – just making it up-to-date”. Mr Watterston also stated that he said to Mr Roach, “I just made my final payment and I’m not paying any more”. Mr Watterston stated in evidence that he was hoping that because he had paid fees to close his account, that maybe he was covered for the following six months and that he was still current, thinking that it might be close to the cut-off date. Mr Watterston stated that Mr Roach’s response was “pretty much just, if you don’t pay it, you – you know, you’re not going to be working here.” Mr Watterston qualified his evidence by stating that he was “not quite sure” whether the discussion about the fact that he had made a payment to the Union occurred before or after Mr Roach made the telephone call.
Mr Watterston stated that Mr Simone then got up stating that they should go, to which he agreed. Mr Watterston stated that as he commenced to walk off, he walked back to Mr Roach and said to him, “Just to be clear, if I don’t pay you that money, you’re not going to let me work here”, to which Mr Roach responded “yes”. Mr Watterston then said, “Well [eff] you” and turned around and walked out with Mr Simone accompanying him. Mr Watterston stated that the whole process from the moment they entered the lunchroom took 10 minutes at the most.
Mr Watterston specifically denied saying anything to Mr Roach about having paid $200 to the Union, which was an allegation made by the respondents in their amended defences. He stated that he told Mr Roach that he had made a payment towards clearing up what he owed the Union and alluded to the fact that maybe it would cover him for the following six months. Mr Watterston stated that in response Mr Roach said something along the lines “You need to take it up with them”. Mr Watterston specifically denied that he said to Mr Roach “I’m sick of you [c*nts]”, or “Give me my [f*cking] tickets”, which were allegations made in the amended defences of the respondents.
Mr Watterston stated that he and Mr Simone then left the site and went out onto the street. Once outside, he telephoned Mr Golz of Geschke Plumbing and told him that the Union would not let him work at the site because he was not a member, in response to which Mr Golz asked about Mr Simone, and said he would make some calls to find out what was going on.
Mr Watterston gave evidence that Mr Golz called him back, saying that it did not look like it was going to work out. Mr Watterston stated that the gist of what Mr Golz said was that he had spoken to Mr Roach and to Lendlease, and that unless he was a union member, it was not going to happen for him. In response to a specific question whether Mr Golz told him that he had spoken to Mr Roach, Mr Watterston stated that he could not remember. Mr Watterston said that Mr Golz asked if Mr Simone could do the job, to which Mr Watterston responded by stating that this was not the way they were set up, as Mr Watterston was responsible for the silicone. Mr Watterston stated that he thought that he called Mr Silver of Geschke Plumbing as well, but that he could not really remember that call. Mr Watterston stated that he remained outside the site for a good 15 minutes to half an hour, and then drove home.
Mr Watterston stated that he called the offices of the Commission, and subsequently spoke to an inspector employed by the Commission, Ms Ruth Dunsby. A file note from the records of the Commission of Mr Watterston’s initial call at 10.53 am on 20 April 2020 was tendered during the evidence of Ms Dunsby. That note stated –
At 10:53am on 20 April 2020, Inspector Ingles received a 1800 call from Brendon Watterston [REDACTED] owner of Melbourne Caulking Pty Ltd. Firstly, Watterston wanted to know his rights regarding being kicked off a site for not being a member of a union. Watterston then explained on 20 April 2020, he turned up to work and completed his induction at the Lendlease Two Melbourne Quarter project, located at Aurora Lane, Docklands, Vic 3008. When he left the induction room to begin work he was stopped by a CFMMEU delegate with the nickname ‘Roach’ (unsure of actual name). The delegate asked him if he was a member of the CFMMEU and asked to see his ticket. Watterston explained to the delegate he is no longer a member of the CFMMEU. The delegate told Watterston if he doesn’t have a ticket, he cannot start work, alternatively he could pay a fee of $500 on the spot to begin work on the project. Watterston explained to Inspector Ingles he had bought hundreds of dollars of materials for this job and he is losing work because he isn’t a member of the union which is why he decided to call the ABCC. Watterston said he is part owner in his company, Melbourne Caulking Pty Ltd and has no employees. Watterston is sub-contracted to Geschke Plumbing Contractors. Watterston contacted Geschke Plumbing and told them about the situation. Geschke Plumbing spoke to Lendlease and the response was “we have no work for you”. Watterston said he would be willing to provide more information to the ABCC if needed.
Subsequently, at 2.15 pm on 20 April 2020 Ms Dunsby of the Commission called Mr Watterston. Ms Dunsby’s file note of her conversation was tendered, which stated, inter alia –
…
•According [to] Watterston, that morning on 20 April 2020, he and his business partner [Mr Simone] were inducted onto the Lendlease Two Melbourne Quarter Project (the Project). Watterston and [Mr Simone] are owners of Melbourne Caulking. Melbourne Caulking have been engaged by Geschke Plumbing to complete 3 – 4 days caulking work on the Project. This was the first time Melbourne Caulking had been engaged by Geschke Plumbing
•As they were leaving the induction room, they were called into the lunchroom by the CFMMEU delegate, “Roach”. Roach asked to see their union membership cards.
•[Mr Simone] has recently become a retired CFMMEU member, which means he pays less fees. [Mr Simone] gave Roach his CFMMEU card, and Roach said that he could work on the site.
•Watterston has recently stopped paying for his union membership. He gave Roach an old union membership card. Roach checked the card and told Watterston that he could not work on the site without paying his membership fees. He told Watterston that he could pay him $500 upfront. Watterston refused.
•Watterston and [Mr Simone] left site and contacted Shannon Silver [REDACTED] from Geschke Plumbing. According to Watterston, Silver called Lendlease to see if they could resolve the issue and let Watterston on the Project. Silver called Watterston back and informed him that there was no way around it and that they would get different contractors who are paid up union members instead.
…
Later, Mr Watterston made a statement which was prepared by Ms Dunsby based on the information that he provided in a telephone call on 23 April 2020, and via email. Mr Watterston’s statement was tendered at the conclusion of his evidence-in-chief: see, Evidence Act 1995 (Cth), s 64(4). The material parts of that statement concerning Mr Watterston’s conversation with Mr Roach were as follows –
36.Roach came back over to us and gave Simone back his card. There seemed to be no issues with Simone’s card. Roach then turned to me.
Roach said· “Where’s yours?”
37.I gave him an old card which I had in my wallet. I thought maybe it would still be ok. Roach went and [sic] check it on his phone.
Roach said:     “It says you’re retired”
Simone said:    “Yea we’re only just doing this job, we’re not really doing any union stuff”
Roach said:     “It says you owe $500”
I said:            “I don’t want to pay that”
Roach said:     “Well if you don’t pay the $500 you can’t work here”
I said:            “Really, I can’t work here?”
Roach said:     “Yep”
38.      At this point I stood up.
I said:“So you’re telling me that unless I pay that $500, I can’t work on site?”
Roach said:“Nope”
A few weeks after their attendance at the site on 20 April 2020 Mr Watterston and Mr Simone were permitted to return to the site to complete the job that their company had contracted to undertake, together with some agreed additional work that was requested by Geschke Plumbing.
Mr Watterston – cross-examination
In cross examination, there were challenges to Mr Watterston’s reliability. Many of the challenges centred on aspects of his evidence to the Court that were not included, or which were suggested to be inconsistent with, the signed statement prepared by Ms Dunsby of the Commission –
(1)Mr Watterston did not agree that a sentence in his statement to the Commission that Melbourne Caulking did not have any employees was inaccurate on the ground that both he and Mr Simone were employees, stating that it was “semantics”. Mr Watterston maintained that Melbourne Caulking was “our” company, and “our own business”. In re-examination, he confirmed that Melbourne Caulking had no employees other than himself and Mr Simone.
(2)It was put to Mr Watterston that a statement made in the email to the Union dated 25 September 2019 (see [21] above) that since the beginning of the year he was no longer working in the industry was untrue. Mr Watterston accepted that the statement was “partly untrue”, and that the wording could have been better, explaining that what had occurred was that he had stopped working on “city sites”, or “union sites”.
(3)Mr Watterston accepted that his statement did not include reference to Mr Roach going off anywhere after his initial interaction with Mr Watterston and Mr Simone, but Mr Watterston stated that there were other incidental matters that had not been recorded in the statement, such as a discussion that Mr Simone had with Mr Jones and other workers, and the fact of Mr Jones’s presence in the room.
(4)Mr Watterston agreed that upon Mr Roach asking for tickets he thought that Mr Roach was going to check whether Mr Watterston was a Union member, and that he was concerned that if Mr Roach ascertained that he was not, he might not permit him to work on the site.
(5)It was put to Mr Watterston that he referred in his statement to Ms Dunsby to he and Mr Simone providing their Union cards to Mr Roach, but not the other cards to which he referred in his evidence-in-chief, namely his CBUS, CoINVEST, Incolink, and working from heights cards. Mr Watterston acknowledged this to be the case but affirmed his evidence-in-chief on this issue. He denied that he had left out of his statement references to cards other than his Union card because he wanted to paint a picture that Mr Roach was just interested in Union tickets.
(6)It was put to Mr Watterston that his statement to Ms Dunsby did not record the fact of Mr Roach making a telephone call to which he had referred in his evidence-in-chief. Mr Watterston affirmed his evidence-in-chief concerning the fact of Mr Roach’s telephone call.
(7)Mr Watterston was asked about the sentence in the statement where he attributed to Mr Roach the words “It says you owe $500”, and responded by stating that he should have said, “the person on the phone…” said you owe $500.
(8)It was put to Mr Watterston that his written statement had made no reference to his remark to Mr Roach that he had made a payment not long ago to make it up to date, to which he had referred in his evidence-in-chief. In response Mr Watterston said that he did not say everything in the statement that he could possibly think of at the time, and that he had given the general scope of it. He said that he had not been asked by Ms Dunsby to give as much detail as he could remember at that time. He denied that he had omitted anything.
(9)It was put to Mr Watterston that he had not included in his statement to Ms Dunsby any reference to Mr Simone saying to him, “It’s time to go”, in response to which Mr Watterston stated that he was pretty sure that he and Mr Simone looked at each other and said “Let’s go”, and then stated that they might not have even said it, but just looked at each other knowing that it was time to go.
(10)It was also put to Mr Watterston that he had not mentioned in his statement to Ms Dunsby that he told Mr Roach that he had made a final payment, and was not paying any more, to which he agreed.
(11)As to the respondents’ allegation that Mr Watterston had told Mr Roach that he had recently paid the Union the sum of $200, in cross-examination Mr Watterston’s evidence about that topic was as follows –
Q:Well, there’s no reference to this evidence you’ve given this morning, sir, that you said to Mr Roach, “We made a payment not long ago to make it up-to-date”?
A:I said something about $200 – or he said there was 200. I can’t remember. I just - - -
Q:Well, just – let’s just break that down?
A:Yes.
Q:Mr Roach said something about $200, did he?
A:Yes. He said I said 200. And I – I said that I made a payment that was going to make me clear of owing anything to the CFMEU.
Q:Can I just try and understand, sir, what you’re telling us?
A:Yes.
Q:Mr Roach – I withdraw that. You told Mr Roach that you paid $200?
A:I thought it was – not 200, but I thought there was a payment. I didn’t specify the amount. I said, “There was a payment made, and I think I – I’m not sure, but I could be still current.”
Q:When - - -?--- .....
Q:You said $200 a moment ago. Where did you get - - -?
A:That’s where he – sorry, I’m thinking about what I read that he said, the $200. Because I didn’t think it was a lot. It wasn’t the full 500, and I know it’s about four hundred and something now.
(12)Mr Watterston was taken back to the topic later in the cross-examination, accepting that he “could have” told Mr Roach that he had paid the sum of $200 to the Union, which I set out below in its context –
Q:You told him that you had paid $200 to reinstate your membership card?
A:No. I told him I had paid some money. I didn’t say how much.
Q:To reinstate your membership?
A:No, just to – to get it current.
Q:To reinstate your membership?
A:Well, to pay off what I had – what I had owed and I wasn’t sure if it was still valid for the time we were at this job.
Q:And you told him that you had done that a couple of days ago?
A:No. I – I don’t think so.
Q:Did you tell him when you had done it?
A:No, because my wife did it for me. I couldn’t remember when. I thought it was more recent than it was.
Q:And what I want to suggest to you, sir, was that you told Mr Roach that, “I paid $200 to reinstate my membership a couple of days ago”?
A:No. I don’t think I said 200.
Q:You could have said 200?
A:Could have, yes. I might have just guessed at the amount. But I know I made – my wife made a payment. It wasn’t the full amount. It was a part-payment.
Q:When did she make that part-payment?
A:I’m not sure. It’s in my – it’s in the paperwork.
Q:Is that the $412.50?
A:Yes.
Q:That was paid back in October 2019?
A:Yes, it was quite a long time.
Q:And it was a part-payment for what, sir?
A:For the last six months membership or three months; I’m not sure. I’m not – I don’t pay it. My wife pays all the bills.
(13)Mr Watterston was then pressed further about his exchanges with Mr Roach, in response to which Mr Watterston appeared to express some uncertainty about what Mr Roach had told him after he had checked his cards, and as to whether Mr Roach told him that he had to take the matter of payment up with the Union office, save that Mr Roach said to Mr Watterston that he was “no good” and that he didn’t have a card –
Q:After you told Mr Roach that you had paid an amount, or someone had paid an amount … your membership, he told you that you needed to ring the union office because, at the moment, they’re saying you cancelled your ticket in February?
A:He did say something along the lines of, “You will have to take it up with them,” meaning the CFMEU or something like that.
Q:You’re not sure what he said?
A:I couldn’t tell you the exact wording now, no.
Q:So what he said, sir, was you needed to ring the union office because they’re saying you cancelled your ticket. And he said, I suggest, that the $200 is missing, because they’ve got no record of you paying it?
A:No, I don’t recall him saying anything about missing $200.
Q:He said something about a missing part-payment, did he?
A:I don’t recall.
Q:He said something about the union having no record of any part-payment being made for your membership fees?
A:No, I can’t recall that.
Q:He suggested to you, didn’t he, that the best thing for you to do was to call the union office or, better yet, go into the union office?
A:Maybe he said something along those lines, but I don’t recall.
Q:You accept that he might have said something like that; is that right?
A:He was just saying you’re not paid. You’re not a member and you need to, you know, pay your membership. If – well, look, I’m just speculating. I – I couldn’t tell you what he said to be honest. I just – I know – I know he said I’m not – I’m no good. I don’t have a card.
(14)It was put to Mr Watterston that his account of going back to Mr Roach and having another conversation with him did not appear in his statement taken by Ms Dunsby. Mr Watterston’s responses were varied, in that he first said that he did not omit it, he just did not remember it, then stating that he was sure that he told Ms Dunsby about it, and then stating that it was something that he did not consider relevant at the time. When pressed further, he stated that he remembered telling Ms Dunsby about the further exchange with Mr Roach and was surprised that it was not in his statement. Mr Watterston denied that he had made up his evidence that he said to Mr Roach “[Eff] you”.
(15)Mr Watterston denied that he had a telephone conversation with Mr Golz in which Mr Golz said that he did not need to leave the site and that he should come back, stating that Mr Golz only asked about Mr Simone coming back, and stated that this probably occurred in the telephone call while he was still at the site. Mr Watterston said that he told Mr Golz that it was a two-man job. Mr Watterston denied that he told Mr Golz that he had another job offer, stating that they had allowed two days for the job and had nothing else booked in.
(16)Mr Watterston denied that he had told the Commission that he had been informed by Geschke Plumbing that Lendlease had said “We have no work for you”.

Mr Watterston stated that he and Mr Simone had talked about the case for over 12 months, and that he had seen something in the nature of a document containing what Mr Simone had said to the Commission.
There was an attempt to pursue a line of cross-examination with Mr Watterston so as to suggest to him that the reason he was not permitted to remain on the site was that Lendlease had not been satisfied that there was an industrial instrument covering the employees of Melbourne Caulking. This line of cross-examination went nowhere and did not feature further in the proceeding.
Counsel for the respondents put the respondents’ case to Mr Watterston in relation to the exchanges with Mr Roach on 20 April 2020, which in substance was that Mr Roach and Mr Jones had spoken to the inductees in the lunchroom about safety matters before asking all the workers for tickets. Mr Watterston denied this claim, stating that it was a “fantasy” and “all lies”. Mr Watterston had denied in evidence-in-chief that Mr Roach and Mr Jones addressed all the employees as a group and denied that either Mr Roach or Mr Jones introduced himself as a health and safety representative, or that they had spoken to the group about safety issues at the site, or about safe work method statements. Mr Watterston further denied that Mr Roach and Mr Jones said anything about lifts on the site, about electrical issues, or that their photographs and telephone numbers were available around the site. Mr Watterston denied that he had snatched his tickets from Mr Roach, using expletives as he did so.
When it was put to Mr Watterston that he did not have a clear recollection of the events of 20 April 2020, he responded –
It was a pretty simple thing that happened. It was – you know, if you want to get into the minute details of it, you know, as I’m sure this is what it’s all about, I’m doing my best. But the general gist of it is we were told to go.
Mr Watterston denied that he had a preconceived idea about how a Union delegate would interact with him that clouded his impression of his interaction with Mr Roach and denied that he misunderstood what Mr Roach was saying to him about the payment that he had made to the Union. Mr Watterston affirmed his understanding that because he was not holding a current Union ticket he was not allowed on site.
As to Mr Watterston’s second telephone conversation with Mr Golz after leaving the site, which was at 9.01 am, Mr Watterston stated that Mr Golz did not say that he had spoken to Mr Roach, and that he was not sure to whom Mr Golz had spoken.
Mr Watterston – re-examination
In re-examination, Mr Watterston stated that he definitely did not go to any other jobs on 20 April 2020, and that he had no other jobs booked for that day.
In relation to his statement to Ms Dunsby, Mr Watterston stated that he did not draft the statement, that there were some things that he did tell Ms Dunsby that did not appear in the statement such as him swearing at Mr Roach, and that there were other things that were not in the statement because he did not consider them to be relevant.
Evidence of Mr Simone
Mr Simone – examination-in-chief
Mr Simone gave evidence that he and Mr Watterston had been members of the Union for about 15 years, that they had terminated their membership, and that he was listed as retired, which was noted on his Union card. Focussing on Mr Simone’s evidence about the interactions with Mr Roach on 20 April 2020, Mr Simone stated that he and Mr Watterston arrived at the site for a 7.30 am induction that was conducted by a Lendlease employee, and which lasted approximately 45 minutes. When leaving the induction room after collecting their belongings, Mr Roach walked Mr Simone and Mr Watterston down to the back tables in the lunch area. After seating themselves at a table, Mr Roach asked them for their cards. Mr Simone produced his cards from his folder, and upon seeking clarification that Mr Roach wanted to see his Union card, he produced that card as well, which stated that he was retired. A copy of Mr Simone’s Union card was tendered, which showed that he was financial until 30 September 2020, and stated that he was a “retired member”. Mr Roach then took Mr Simone’s cards to a nearby table and checked them, with Mr Simone observing him using an app on his mobile telephone. Mr Roach returned to Mr Simone, handed his cards back, and said, “You’re all good”.
Mr Simone then gave the following evidence about Mr Roach’s exchanges with Mr Watterston in relation to his cards –
.. Brendon handed him the three – the CBUS, the Incolink and the CoINVEST and, then, he said, “I need your union card.” He said, “I don’t have one.” And he said – well, he goes, “Do you have an old one?” And he said, “Yes, I have an old one.” And he said, “That will do. I can use that.” And so Brendon handed him that and then he went back and ran it through the same app that he did with me. And – and then, actually, he – I don’t think he had to make a phone call with mine, but I noticed that he did make a phone call while he was running Brendon’s cards.
Mr Simone stated that while Mr Roach made the call –
Brendon and I were sort of giving each other the eye because we knew, basically, what was happening, and sort of – we had an idea of what was coming up.
Mr Simone’s account of the exchanges upon Mr Roach’s return to Mr Watterston was as follows –
Q:Now, did he finish the phone call before returning to you or was he still on the phone call?
A:No, no, he finished the phone call.
Q:And then what happened?
A:He basically gathered up Brendon’s cards, came over and told him that Brendon needed to pay the – he was behind in his union fees; he needed to pay them, like, [$]515 because he hadn’t paid, to which Brendon said, “You know, I’m all paid up. I’ve paid.” And he said something like, “Well, you owe it.” And he said, “Well, I’m not paying it.” and basically, Jason Roach said, “Well, you have to go down and talk to the – talk to the union office. Give them a call and organise a payment.” And Brendon said, “Well, I don’t want to pay.” And Mr Roach said, “Well, you have to organise a payment. You know, speak to the union office.” And that’s when Brendon started querying, “Look, are you not letting us on the job? Are you saying that if I don’t pay this, I can’t come on the job?” And – and then Mr Roach was saying, “Look, I’m just saying you’ve got to go down to the union office and talk to them.” And he says, “Well, I don’t want to talk to the union office. Are you saying that I can’t work here if I don’t pay my union fees?” To which Mr Roach basically said, you know, “You have to go – you have to go to the office and deal with that. You can’t come on the job until you go to the office or make – like, deal with the office.”
Crucially, Mr Simone stated that Mr Watterston sought to have Mr Roach state clearly his position, and put to him, “Are you saying that I can’t work here if I don’t – if I don’t pay my Union fees?”, to which Mr Roach responded, “Until – until that, no, you can’t work here”. Mr Watterston then told Mr Roach to “[eff] off”, and he and Mr Simone collected their hard hats and proceeded to walk out.
Mr Simone denied that he saw Mr Roach and Mr Jones address all the inductees as a group and denied that there was any address by them about safety or anything to do with the site. He admitted of the possibility that Mr Roach introduced himself as the health and safety representative for the site but did not recall Mr Jones introducing himself. Mr Simone also said that he did not recall Mr Watterston making any reference to a figure of $200 and did not recall Mr Watterston mentioning any particular amount. Mr Simone denied that Mr Watterston had used other expletives to Mr Roach when demanding the return of his tickets.
Mr Simone stated that after they left the area where Mr Roach had been, they left the site and remained outside where he heard Mr Watterston engage in at least two telephone calls. He heard Mr Watterston explain to Mr Golz of Geschke Plumbing that they could not get onto the site and requesting that he sort it out. Mr Simone gave evidence that he and Mr Watterston were resigned to the fact that they would not be able to get onto the site that day, but that they would be able to return to the site on a later occasion to undertake the job.
Mr Simone prepared a statement for Ms Dunsby of the Australian Building and Construction Commission dated 27 April 2020, which was tendered. Mr Simone said that he was satisfied that the statement was true and accurate at the time he made it to the best of his recollection. The central elements of that statement were as follows –
24.Roachie came back over and gave me back my cards. He then turned to Watterston.
Roachie said:     “and your card?”
Watterston said: “I don’t have a card, I have this old one”
Roachie said:     “I can take that one”
25.Roachie took Watterston’s card and went to check it. I think he tried to check the card on an app on his phone but it was not working so he rang the union instead.
26.Whilst this was happening I started talking to someone about their CFMMEU Team Taylor jumper.
27.Shortly after this Roachie finished the phone call and then approached Watterston.
Roachie said:     “You owe $515”
Watterston said: “No I’ve paid, I’ve been a member for 15 years and I’m paid off”
Roachie said:      “That’s fine but you have to take it up with the office”
Watterston said: “So you’re telling me that unless I pay that $515, I can’t work here?”
Roachie said:     “Not until you pay your $515”
Mr Simone – cross-examination
In cross-examination –
(1)Mr Simone stated that Mr Roach was wearing a black hard-hat, with Union stickers. He said that Mr Roach was not hostile or aggressive, and that he did not do anything physical to prevent Mr Simone and Mr Watterston from working on the site.
(2)Mr Simone agreed that he had a perception that Mr Roach was a person who was going to check whether or not he was a union member. He did not think that Mr Roach was going to prevent them working on the site but apprehended that the situation would be very awkward.
(3)Mr Simone denied a series of propositions that were put which amounted to Mr Roach introducing himself and the other health and safety representative to them and a number of other workers in the room. Mr Simone stated, “that didn’t occur”. While he accepted as a possibility that Mr Roach had introduced Mr Jones, he did not recall it occurring.
(4)Mr Simone denied being told by Mr Roach about safety matters and denied that Mr Roach had spoken to other workers. He did not recall Mr Roach speaking to them about other matters, namely, to be patient with drivers, to check their electrical equipment, or that his and Mr Jones’s photographs were on posters around the site. In re-examination, Mr Simone explained that when he stated that he did not recall these matters, his answer was “no”, meaning that the events did not occur.
(5)Mr Simone stated that he did not recall Mr Watterston stating to Mr Roach that he had paid a particular sum of money, or that that Mr Watterston had identified the sum as $200, but accepted that it was a possibility that Mr Watterston may have mentioned paying a particular sum of money. Mr Simone was questioned further about this aspect, and his evidence was as follows –
Q:And after he [Mr Roach] had concluded making that phone call, he spoke to Mr Watterston and said that the union was saying that Mr Watterston had cancelled his ticket in February?
A:I don’t recall that was exactly what they said, but I do recall him saying something about he’s no longer a member, to – to that effect.
Q:And Mr Watterston replied at that point that he had paid an amount to reinstate his membership?
A:He had, yes.
Q:And I think we went through this earlier, sir, but I will – sir – the abundance of caution – I suggest to you that he nominated the amount of $200 as the amount he would pay the union?
A:You – you can suggest that, yes. I will go with your suggestion.
(6)Mr Simone stated that he recalled hearing Mr Roach say to Mr Watterston that he owed $515 –
Q:Okay. Now, in that conversation, did Mr – do you recall Mr Watterston saying anything about $200?
A:No, that – that – I don’t believe – I don’t recall that. I remember – I thought it was something about, like, around 515, because it was – that would be the last instalment, or that would be how much it would cost for the half yearly
fee. So that’s – I remember something about 515 is what I remember.
(7)Mr Simone denied a proposition that at no point had Mr Roach told Mr Watterston that he was not able to work on the site until he paid it, and gave the following account –
From my memory, what he said was - when Brendon said, “Are you saying that I can’t work here on the site unless I’m a union member,” Mr Roach said, “Not until you sort out this this – not until you sort this out with the union.” “Can I work here?” “Not until you sort this out with the union,” is what I recall.
(8)Mr Simone was asked about his understanding of Mr Watterston’s telephone conversation with Mr Golz at 9.01 am, as conveyed to him at the time by Mr Watterston –
Q:… And did Mr Watterston relay to you, after Mr Golz’ – or his second call with Mr Golz, whether Mr Golz had sorted things out?
A:He relayed to me that he was too busy to sort things out and that it would probably be best that we just left and that they would probably get somebody in who had union membership.
Q:So Mr Watterston didn’t tell you that Mr Golz had told him that he had attempted to sort things out with Mr Roach or anyone else?
A:Right, Mr Watterston told me that he didn’t try to sort things out with Mr Roach because he was too busy; he wasn’t going to be able to do it.
(9)Counsel for the respondents put elements of the respondents’ case to Mr Simone. The cross‑examination concluded with the following question and answer –
Q:And it was only on – as I understand your evidence yesterday, sir, only on that last occasion or after the last occasion that Mr Watterston had asked that question that Mr Roach responded to the effect, as I understand your evidence, that, “You can’t work here”?
A:From my memory, what he said was – when Brendon said, “Are you saying that I can’t work here on the site unless I’m a union member,” Mr Roach said, “Not until you sort out this this – not until you sort this out with the union.” “Can I work here?” “Not until you sort this out with the union,” is what I recall.
Mr Simone – re‑examination
In relation to any sum that Mr Watterston told Mr Roach he had paid to the Union, Mr Simone stated that he did not recall any sum, which in context I understand to mean that he did not recall Mr Watterston mentioning any particular figure, and that the same was conveyed by his answer in cross-examination, “I will go with your suggestion”, meaning that he did not recall any sum. Mr Simone then added –
I remember – I remember in my head something about 515 because that just seems like the natural – that’s the – the twice a year that we had to pay, so - - -
Mr Simone addressed the exchange between Mr Watterston and Mr Roach in the following terms –
What he said was, when it came to Brendon asking him, “So you’re saying that I can’t work on this site unless I pay my union dues,” that was when – or, “You’re saying I can’t work on this site – are you telling me I can’t work on the site?” Mr Roach said, “Not until you pay your union dues. Not until you get down to the union office and pay your dues. Sort this out with the union.” Words to that effect, not the 515, not the way he – that your learned friend explained it. More so just in a different way.
Evidence of Mr Golz
Mr Golz was employed as a site foreman by Geschke Plumbing. As will appear from the following summaries, on some issues the evidence of Mr Golz changed markedly during the course of his evidence from examination-in-chief, to cross-examination, to re-examination. It will be necessary to make findings about Mr Golz’s evidence in due course.
Mr Golz - examination-in-chief
Mr Golz stated that on the morning of 20 April 2020 he showed Mr Watterston and Mr Simone to the induction room on the site. His next contact with them was when Mr Watterston called him after the induction had finished, telling him that he was told by the CFMEU representative on site (whom Mr Golz knew was Mr Roach) that he was not allowed to start until he had sorted out his union fee. Mr Golz’s evidence-in-chief on this topic was as follows, noting that Mr Golz was a subpoenaed witness, and that the following evidence was largely in response to non-leading questions –
Q:All right. And in relation to Mr Watterston and Mr Simone, what was the next occasion that you became aware of any issues or happenings with respect to them on the site that day?
A:They gave me a call when the induction was finished.
Q:Who gave you a call?
A:Brendon.
Q:And do you recall what time that was?
A:No.
Q:All right. And what did he say to you?
A:That the induction had finished, and he wasn’t allowed to start until he sorted out his union fee.
Q:Did he tell you anything about who had told him that?
A:He just said the CFMEU rep on site.
Q:Did he mention a name or you?
A:Just said Jason.
Q:Do you know the CFMEU rep on that site?
A:Yes.
Q:What’s his name?
A:Jason.
Q:You know his surname?
A:Roach.
Q:Do you know if he has a nickname?
A:Roachy.
Q:Right. Now, do you recall him – when he said, “We weren’t allowed on the site,” was he talking about both himself and Mr Simone?
A:No, just himself.
Q:All right. Did he tell you what the situation with Mr Simone was?
A:That he had to organise $200 owing.
Q:I’m sorry. I was asking about the situation with Mr Simone. Did he tell you what the situation with Mr Simone was?
A:He said that Mr Simone had paid some of his dues and was able to proceed.
Q:All right. And what was the distinction with respect to Mr Watterston?
A:That he had – he had paid $200 that Jason said to go chase up before commencing.
Q:So as I understand that answer, you said Mr Watterston told you that he had $200 – a payment to the union that he had to chase up?
A:Yes, that he wasn’t allowed to start until he had a – had that clarified from the union.
Q:All right. What did you say in response to that?
A:I said I will chase it up and I will speak to my project manager to sort out this issue.
Q:Who’s your project manager?
A:Shannon Silver.
Q:Did you say that you would try to speak to Mr Roach?
A:I – I went to go find Mr Roach but couldn’t – didn’t find him at that time, so I contact … so I contacted Shannon to organise.
Mr Golz stated that he went onto the site and found Mr Roach. Mr Golz stated that he found Mr Roach about half an hour after he spoke to Mr Watterston. Mr Golz’s evidence at this point was that he spoke to Mr Roach onsite. Mr Golz gave the following evidence about his conversation with Mr Roach, which he stated occurred in person –
Q:And what happened then?
A:He just said that – that he had to – he said for him that he had $200 that he – had been paid for him to chase up from – from the office before proceeding.
…
Q:Yes. When you said he had to pay – $200 that he paid that he had to chase up at the office before proceeding. What do you mean by before proceeding?
A:Before commencing work.

Mr Golz stated that he did not recall whether in his conversation with Mr Roach he made any attempt to try and have Mr Watterston and Mr Simone be allowed to work on the site. Mr Golz stated that he then telephoned Mr Watterston who told him he had left the site because it was a two-man job. Mr Golz stated that in response he said that Mr Simone was able to continue, to which Mr Watterston responded by stating, “No, we’re leaving [the] site. It’s a two-man job.” Mr Golz stated that he spoke to Mr Silver by telephone after his second conversation with Mr Watterston. Mr Golz stated that up to this point he had not spoken to Mr Silver, stating that he had called but could not get through to him, and that he did not recall when he first spoke to Mr Silver about the situation.
Mr Golz stated that he recalled receiving a call from an inspector of the Australian Building and Construction Commission the following day, 21 April 2020, but said that he could not remember her name, and that he could not remember what he had told her. He recalled telling Mr Silver that he had been contacted by the Commission but could not recall what Mr Silver said. He did not recall calling Mr Roach or speaking to him at any time about the fact that he had received a call from the Commission. However, he did recall exchanging text messages with Mr Roach. Mr Golz identified an exchange of text messages with Mr Roach, parts of which were tendered as a screenshot, where the top message on the screenshot was obscured. Mr Roach was later asked in cross-examination to read the messages from his iPhone, and it is convenient to set out at this point the exchange of text messages that is the product of the evidence of both Mr Golz and Mr Roach, including his evidence in re-examination –
Mr Golz: Come to my office, please, for a chat
Mr Golz: I can’t believe they called trying to find out haha
Mr Roach:I know mate. That’s what the dogs do. Try & get every [c*nt] to dob the union in so they can try & prosecute & send the union broke
Mr Golz:Yeah it’s ridiculous mate ohwel [sic] nothing will come out of [it] they prob get that many phone calls per day
Mr Roach:I hope not but stiff shit anyway. It’s his word against mine but I can tell you that Melbourne caulking won’t be getting any union work in the future
Returning to Mr Golz, after being taken to these text exchanges, Mr Golz then recalled that he had called Mr Roach, possibly after he had been contacted by the Commission.
Mr Golz gave evidence of an email that he sent to Mr Silver and Mr Geschke of Geschke Plumbing on 22 April 2020, which included the following account of what occurred on 20 April 2020 –
… Once induction completed Brendan called and advised me that he was unable to attend site due to not being financial as directed by roachy, he then added that Stefan [sic] was able to continue on site as he did have his card, Brendan had said to roachy that he had payed [sic] his fees of $200 dollars a couple of weeks prior, with further investigation roachy said he hadn’t and [until] he did he couldn’t proceed with work but Stefan was more than welcome to, Brendan told me then that he hadn’t payed [sic] it for years as he doesn’t need it, then asked if I could call roachy.
I spoke to roachy To get a better understanding and heard the same story as Brendan, I contacted Brendan and said was on my way down the building to sort it out and meet him and Stefan. By the time I had made it down to meet Brendan on level b4 he called and advised me that they were both leaving site as Nothing more could be resolved from the outcome, I made it known that Stefan can stay and complete the caulking, but his response was that it was a 2 man job and having one person there to conduct the works wouldn’t be practical.
…
Mr Golz stated that the contents of the email would be “very accurate”. In relation to the reference to $200, Mr Golz stated that this was something that Mr Watterston had said to him. At this point in Mr Golz’s evidence, I gave leave to the applicant to cross-examine: Australian Building and Construction Commissioner v Roach (The Melbourne Quarter Case) (Ruling No 1) [2021] FCA 1153.
Mr Golz - cross-examination with leave by counsel for the applicant
Counsel for the applicant referred to the telephone records of communications that Mr Golz had on 20 April 2020. Mr Golz accepted that he and Mr Silver had numerous calls, and that Mr Silver had returned his call at 8.35 am, and that Mr Golz had told Mr Silver what Mr Watterston had told him. Mr Golz accepted that the effect of what he said to Mr Silver was that Melbourne Caulking was not allowed onto the site by Mr Roach because they were not in the union, meaning that they were not financial as they had not paid their dues, or their dues were not up to date.
In relation to his telephone conversation with Mr Watterston prior to him leaving the site, Mr Golz denied telling Mr Watterston that he may as well leave because the Union was not going to let him work. However, Mr Golz agreed that by the time he called Mr Watterston back, he knew that Mr Roach was not going to let him back on the site.
Mr Golz agreed that Mr Roach had told him that Mr Watterston had to pay some money before commencing work on the site. Mr Golz also agreed that Mr Watterston had never told him that he had paid $200 to the Union, and that it was Mr Roach who had told him of that sum.
Mr Golz was taken to a file note prepared by Ms Dunsby of the Commission of her conversation with him on 21 April 2020, which was later tendered. In the file note, Ms Dunsby recorded the following (inter alia) –
•Golz got a call from Watterston, who was outside the project, informing him that the CFMMEU Union Delegate “Roachie” wasn’t letting them work because they weren’t financial CFMMEU members. Golz told Watterston that he would give Roachie a call and meet them outside the project.
•Golz called Roachie, and tried to convince Roachie to let Watterston and Simone back on site. Roachie said that Simone was allowed on site because he was financial but Watterston wasn’t. Golz informed Dunsby, that he tried his hardest to get them back on site but it was out of his hands.
•Golz called Watterston back, and Watterston told him that they had left the site. Golz said that Simone was allowed on site. Watterston said that it really was a “two man job”. Watterston also told Golz, that Simone was not actually a financial member but was a retired CFMMEU member and only paying for the CFMMEU card.
After reference to the file note, Mr Golz accepted the following propositions (inter alia) –
(a)Mr Roach told him that Mr Watterston was not allowed onsite because he was not financial with the Union;
(b)Mr Roach told him that Mr Simone was allowed onsite because he was financial with the Union; and
(c)in response, Mr Golz tried his hardest to persuade Mr Roach to allow Mr Watterston to work, but was unsuccessful, Mr Roach stating that Mr Watterston had to pay fees of $200 before he could work, and that Mr Roach had made this position clear.
Mr Golz - cross-examination by counsel for the respondents
In cross-examination by counsel for the respondents, Mr Golz gave evidence about material facts that differed in some respects from his previous evidence.
Mr Golz initially stated that he spoke to Mr Roach face-to-face. However, at different points in his evidence Mr Golz also stated that he did not recall whether he met Mr Roach, or whether he telephoned him after he had spoken to Mr Watterston. He then agreed that the first time he spoke to Mr Roach was during a telephone conversation at 9.09 am, being one of the telephone calls appearing in the statement of agreed facts. Later in the cross-examination, Mr Golz accepted a suggestion that he was mistaken about having a face-to-face meeting with Mr Roach on the day, and that on the premise that his first telephone call with Mr Roach was at 9.09 am, he would not have had any communication with Mr Roach before his second conversation with Mr Watterston at 9.01 am. Mr Golz agreed that he had spoken to Mr Watterston twice before he spoke to Mr Roach, and accepted the following propositions –
(a)Mr Watterston had told him in a telephone call at 8.28 am that he had told Mr Roach that he had paid $200 to the Union a couple of weeks previously;
(b)Mr Roach had said that there was no record of the payment, and that Mr Watterston should chase it up with the Union office;
(c)on the premise that he had not spoken to Mr Roach before 9.09 am, it could not be the case that he would have said anything to Mr Watterston in the call at 9.01 am concerning Mr Roach’s position about whether Mr Watterston could work on the site, because he had not spoken to Mr Roach up to that point;
(d)it followed that he would not have said to Mr Watterston in the 9.01 am call that he might as well go, because he did not know of Mr Roach’s position;
(e)that when he spoke to Mr Roach at 9.09 am, Mr Roach stated that, “it was a load of bullshit that he was not letting the caulker start onsite”, that he never told the caulker to leave, and that the caulker needed to speak to the Union about where his $200 was;
(f)that he made no attempt to convince Mr Roach of anything at all, because Mr Roach had said that it was “all bullshit”;
(g)Mr Watterston had never told him that Mr Simone was a retired member of the Union; and
(h)that on about 10 July 2020, he had a conversation with Ms Bridie Murphy, a solicitor acting for the Union, and told her that Mr Roach had told him that it was not the case that Mr Watterston was not allowed back on site.
Mr Golz was questioned about his 9.41 am telephone conversation with Mr Watterston. When it was put to him that he told Mr Watterston that he did not need to leave the site, and that he asked him to come back, Mr Golz initially stated “I don’t recall that phone call”. Some leading questions were then put to Mr Golz, to which Mr Golz responded on the basis that he had a telephone conversation with Mr Watterston as he was making his way down to see him –
Q:Sorry, sir?
A:I was up the top of the building making my way down to see him and he said that he had left site because he wasn’t waiting around.
Q:Thank you. And you encouraged him to not leave?
A:Yes.
Q:And you told him, didn’t you, that if he was going to leave then, at least, he should send his mate back to do the job?
A:Yes.
Q:And he told you that it was a two-man job?
A:Yes.
Q:And you said that it wasn’t?
A:I – I said that it wasn’t?
Q:It wasn’t a two-man job because it was caulking and it could be done by one man?
A:I said that we could proceed with one.
Q:All right. Thank you?
A:Make a start.
Q:But Mr Watterston said that he was too busy?
A:Yes.
Q:He told you had another job to go to?
A:Yes.
As set out below, Mr Golz walked back on this evidence in re-examination by counsel for the applicant.
Mr Golz - re-examination by counsel for the applicant (including further cross-examination with leave)
Counsel for the applicant sought leave to cross-examine Mr Golz further, which was not opposed. During the course of this cross-examination, Mr Golz changed his evidence again in relation to material issues. In summary, Mr Golz gave evidence that –
(a)in one of his conversations with Mr Watterston, Mr Golz had asked if Mr Simone could return to the site because he knew that Mr Simone was allowed to work by Mr Roach because he was financial;
(b)he did not ask Mr Watterston to return to the site because he knew that Mr Roach was not going to allow him to come back;
(c)he had told Ms Dunsby of the Commission that Mr Roach had said they could not work because they were not paid up;
(d)he tried with Mr Roach to have him allow Mr Watterston to return to the site;
(e)that he was told by Mr Roach that Mr Watterston was to chase up the $200 that he had said he already paid, and to sort that out before he started;
(f)the reality was that Mr Roach said that Mr Watterston had to pay the amount before he could work;
(g)contrary to his previous evidence, it was not true that Mr Roach had told him that it was a “load of bullshit” that he was not letting Mr Watterston start onsite before he paid;
(h)Mr Roach never told him at any time that Mr Watterston was allowed back on site;
(i)Mr Watterston was not allowed back on site until he paid the Union fees; and
(j)insofar as he had said anything different to the respondents’ solicitor, Ms Murphy, he did so as to not upset the Union, although he denied giving evidence before the Court with that purpose.
Evidence of Ms Dunsby
As I have mentioned, Ms Dunsby was at the time of the relevant events an inspector employed by the Australian Building and Construction Commission. She produced or referred to the following records, which were admitted into evidence –
(a)a record of a 1800 call to the Commission by Mr Watterston at 10.53 am on 20 April 2020;
(b)a file note of a telephone conversation between Ms Dunsby and Mr Watterston dated 20 April 2020 at 2.15 pm;
(c)a file note of a telephone conversation between Ms Dunsby and Mr Golz dated 21 April 2020 at 12.00 am [sic]; and
(d)the signed statement of Mr Watterston that she prepared that was dated 23 April 2020.
Ms Dunsby was cross-examined about her usual practices in the preparation of notes of her interviews, and statements that she prepared. She said that she did not recall Mr Watterston stating to her that after Mr Roach had initially said something to him about not being permitted to work onsite, that he got up, started to leave, and then came back to clarify with Mr Roach whether or not he was permitted onsite. Ms Dunsby acknowledged that this claim did not appear in the statement that she had prepared for Mr Watterston. Ms Dunsby gave evidence that, had she been told of that claim, she would have recorded it in the statement. Ms Dunsby also stated that she was fairly confident that Mr Watterston had not told her that there was another union delegate present. Nor did she recall Mr Watterston stating that he was asked for and showed Mr Roach cards other than his Union card, and stated that if he had done so, she would have recorded it in the statement.
Other documentary evidence
Neither Mr Silver nor Mr Geschke was called as a witness, but some emails from Mr Silver were tendered without objection. One email was from Mr Silver to a manager of Lendlease dated 21 April 2020, in which Mr Silver stated –
Also FYI Melbourne Caulking were not allowed onsite by Roachy so I will need to find another contractor.
An email dated 22 April 2020 that Mr Silver sent to himself, and which was copied to Mr Geschke was tendered by the applicant without objection. The email had as its subject “ABCC” and appears to be a note of events made by Mr Silver after he became aware of the investigation by the Commission –
Monday 20/4
•Melbourne Caulking came to be inducted
•Apparently weren’t allowed onsite because they weren’t in the union
Tuesday 21/4
•Received call from ABCC regarding what happened - explained what I knew about the situation
•Gave over Brads number
•Gave over Caths number
Wednesday 22/4
•Missed call from ABCC
•Missed Call from Brendon
•Rang Cath about LL stance - she hadn’t heard from ABCC, said she would follow up with management
•Spoke with Rohan, explained what occurred, he rang another LL department and rang back, was concerned with where the supposed conversation between Roachy and Brendon occurred, stated I didn’t know
•Rang the ABCC back, received Notice to Produce Documents
Evidence of Mr Roach
Mr Roach - evidence-in-chief
At the relevant time, Mr Roach was employed by Lendlease as a labourer, and was elected by the workforce as one of the site’s health and safety representatives, and was a Union delegate. He had worked on the site since 10 July 2018. The other health and safety representatives included Mr Kerry Jones for the plumbers, and Mr Clint Wiggard for the electrical trades.
Mr Roach was asked what his practice was as a health and safety representative in relation to the induction of new workers at the project. Objection was taken to this questioning, and I ruled that such evidence was tendency evidence which was inadmissible pursuant to s 97 of the Evidence Act, and that the relevant condition for admissibility, namely the giving of notice, had not been engaged: Australian Building and Construction Commissioner v Roach (The Melbourne Quarter Case) (Ruling No 2) [2021] FCA 1210.
Mr Roach then gave evidence as to relevant events on 20 April 2020. He stated that he attended the lunchroom on the site to speak to the inducted workers, and probably arrived there just after 8.00 am. The lunchroom was next to the room where the inductions took place, and he attended the lunchroom together with Mr Kerry Jones of the plumbers’ union.
Mr Roach stated that the inductees came into the lunchroom at about 8.15 am, following which he spoke to them. Mr Roach stated that with Mr Jones standing beside him, he said, “G’day, fellas. Now that you’ve completed your induction, can I get you to come over here and take a quick seat while we have a chat to you before you go out on the site”, following which the workers sat down at numerous tables. Mr Roach stated that he remained standing, and that he then addressed the group –
I introduced myself. I said to the group, “G’day, fellas. My name is Jason Roach. I’m the site HSR and CFMEU delegate. This is Kerry Jones. He’s the plumbing HSR and delegate.” I then said – I then said to the boys, “Have you all signed onto your SWMS [Safe Work Method Statements], fellas? If you did, I hope you read them very carefully and understood them before you put your signature to them. Now that you have signed onto them, please stick to them.” I then said – told – told the workforce that we were having trouble with the lifts on site. I said, “Look, the lifts – we’ve been having a lot of complaints from the workers on site about the lifts, that they’ve been waiting too long for them.” I said, “Please don’t take it out on the drivers. They’re only doing their jobs. It’s just the way the job is set up and where the lifts are”.
Mr Roach further stated that he addressed the need to have electrical tools and equipment tested and tagged and told the work group that if there were any issues then, “our ugly mugs” (referring to himself and Mr Jones) were “plastered around the site with our phone numbers underneath”.
Mr Roach then gave evidence that he asked the workers to bring out their tickets, by which he meant tickets such as high risk, CBUS, CoINVEST, and Incolink tickets. He stated that in response, a person whom he now knew to be Mr Watterston stated, “I don’t have to show you any tickets”. Mr Roach responded by stating, “that depends on whether you’re a union member working an EBA. I need to check your CBUS, Incolink and CoINVEST to make sure it’s up to date.” Mr Roach gave evidence that he then went and sat at a table and asked the inductees to bring their tickets to him one at a time, which they all did except for Mr Watterston, who brought his tickets over about a minute later. The tickets that were placed on the table included Union membership tickets. Mr Roach stated that the purpose of checking the Union tickets was for the financial status of members. If someone was not financial, Mr Roach would ask them why. Mr Roach stated that in the event a person stated that they did not want to become financial, he would explain to them the benefits of union membership. Mr Roach stated that he checked all the CBUS tickets with an app on his telephone, which could also be used to check Incolink and CoINVEST tickets. As to Union tickets, there was not an app that could be used to check them, but Mr Roach was able to go to a website to ascertain the holder’s financial status. The process of checking all the tickets took about five to ten minutes.

There is also the content of the text exchanges between Mr Roach and Mr Golz which, in combination with the other evidence, is significant. The exchanges are set out under [63] above. There are two aspects of what Mr Roach said that invite attention. The first is his reference to “dob the union in”. By itself, this may not be decisive, but the use of the word “dob” is indicative of a consciousness of contravention by the Union. More significant to my mind is the second aspect, which is Mr Roach’s claim that “Melbourne caulking won’t be getting any union work in the future”. I find that this statement was an expression of illegitimate authority to sanction those who acted against the interests of the Union by controlling entry to sites. This expression of power was consistent with the applicant’s claim that Mr Roach attempted to exercise illegitimate authority to prevent Mr Watterston from entering the building site. While I accept Mr Roach’s explanation that he wrote the text in frustration, his reason for making the threat is beside the point. As to Mr Roach’s evidence that he could not and did not take any steps to prevent Melbourne Caulking getting union work, I regard the evidence as a self-serving rationale that does not diminish the significance of the fact that the threat was expressed.
As I have foreshadowed, questions arise in relation to the truthfulness of some of the evidence given by Mr Golz to the Court, and his willingness to accept contradictory propositions that were put to him by leading questions in cross-examination. However, those reservations do not have the same weight in relation to the extra-curial contemporaneous representations that Mr Golz made to Ms Dunsby. Ms Dunsby was called as a witness immediately after Mr Golz had given his evidence. It was not put to Ms Dunsby in cross-examination that her notes of her interview of Mr Golz and their reference to Mr Golz’s conversation with Mr Roach were the product of putting leading propositions to him, save that Ms Dunsby was cross-examined as to whether Mr Golz had used the word “financial” in reference to Mr Simone (see [70] above). Ms Dunsby gave evidence that “financial” was Mr Golz’s word. Otherwise, Ms Dunsby was not questioned in cross-examination about any other aspect of her note recording what Mr Golz had told her.
Mr Watterston gave evidence that during his first call to Mr Golz, which I find occurred at 8.28 am, he stated to Mr Golz that he was not permitted to work at the site because he was not a union member, in response to which Mr Golz asked about Mr Simone. Mr Golz’s email to Mr Silver and Mr Geschke dated 22 April 2020 stated that Mr Watterston told him that Mr Simone was able to continue on the site, as he did have his card. Mr Golz said that he would make some calls. I find that after Mr Watterston telephoned and spoke to Mr Golz at 8.28 am, he called Mr Golz again at 9.01 am while he and Mr Simone remained outside the site awaiting further information from either Mr Golz or Mr Silver as to whether, on their understanding of the situation, they would be permitted to return to the site. Mr Watterston’s evidence concerning whether during the second telephone conversation, which was at 9.01 am, Mr Golz told him that he had spoken to Mr Roach was, to some extent, equivocal. Mr Watterston gave evidence that Mr Golz called him back. However, that is not consistent with the telephone records, or with Mr Simone’s statement to Ms Dunsby that Mr Watterston called Mr Golz again. I note, however, that in evidence-in-chief Mr Simone stated that Mr Golz got back to Mr Watterston. Nor is it consistent with Mr Golz’s evidence that Mr Watterston called him back. As to the content of the second call, Mr Watterston initially stated that the gist of what Mr Golz said was that he had spoken to Mr Roach and to Lendlease, and that unless he was a union member, it was not going to happen for him. Then, in answer to a direct question, Mr Watterston stated that he could not remember Mr Golz telling him that he had spoken to Mr Roach. In cross-examination, Mr Watterston stated that Mr Golz did not tell him to whom he had spoken, but that he had spoken to “people”, and that Mr Watterston and Mr Simone were not getting on site. Mr Watterston was unable to say what words were spoken by Mr Golz, but said that he was told that he may as well go.
Mr Simone gave evidence that he was present with Mr Watterston at the time of the call to Mr Golz at 9.01 am, and that it was his understanding that Mr Golz told Mr Watterston that Mr Simone could start, but that Mr Watterston could not start until he sorted everything out with the Union but that Mr Watterston explained that it was a two-man job. I am cautious about this aspect of Mr Simone’s evidence, because Mr Simone did not hear Mr Golz speaking to Mr Watterston, and I am not confident that Mr Simone’s evidence was not the product of some degree of reconstruction, which he came close to volunteering when he stated that he was “almost filling in the blanks”, and that he and Mr Watterston spoke about it afterwards. Mr Simone stated that Mr Watterston relayed to him after the second call that Mr Golz was too busy to sort things out, and relayed to Mr Simone that the person on the phone “was basically saying that they would probably get somebody who’s union to do the job”. Initially, Mr Simone could not remember who had said this, but then stated that he thought it was Mr Golz. Mr Simone was also uncertain in his understanding as to whether he and Mr Watterston were waiting outside the site for Mr Golz to come down and see them, but then stated that it was his understanding that they were waiting to see whether Mr Golz could sort something out.
Mr Golz initially gave evidence that on 20 April 2020 he spoke to Mr Roach in person after Mr Watterston called him to say that he was not allowed to start until he sorted out his union fee. During the course of cross-examination by counsel for the respondents Mr Golz changed his evidence to say that he did not recall whether he met Mr Roach, and then accepted that on reflection he was mistaken about having a face-to-face meeting with Mr Roach.
There are some aspects of Mr Golz’s contemporaneous representations that are inconsistent with other evidence. In Ms Dunsby’s note of her conversation with Mr Golz of 21 April 2022, the following sequence is described –
(a)Mr Golz received a call from Mr Watterston, who was outside the site, informing him that Mr Roach had not permitted them to work on the site, because they were not financial Union members;
(b)no distinction in the above account was made between the positions of Mr Watterston and Mr Simone;
(c)Mr Golz told Mr Watterston that he would call Mr Roach and then meet them outside;
(d)Mr Golz then called Mr Roach, who informed him that Mr Simone was allowed on the site because he was financial, but that Mr Watterston was not;
(e)Mr Golz called Mr Watterston back, and Mr Watterston told him that they had left the site; and
(f)during the above call, Mr Golz told Mr Watterston that Mr Simone was allowed on site, but Mr Watterston responded by stating that it was a two-man job.
In this account, Mr Golz makes no distinct reference to Mr Watterston’s telephone call to him of 9.01 am, at which time Mr Watterston and Mr Simone remained outside the site.
In his email to Mr Silver and Mr Geschke of 22 April 2020 set out at [65] above, Mr Golz described the following sequence –
(a)after the induction, Mr Watterston called him and advised that he was unable to attend the site because he was not financial, and added that Mr Simone was able to continue, because he did have his card;
(b)Mr Watterston told Mr Golz that he had said to Mr Roach that he had paid fees of $200 “a couple of weeks prior”, as to which there is a live question whether that information was given to Mr Golz by Mr Roach;
(c)Mr Golz then spoke to Mr Roach, not specifying whether this was in-person, or by telephone, where he “heard the same story as Brendan”;
(d)Mr Golz then contacted Mr Watterston and stated that he was on his way down the building to sort it out and to meet Mr Watterston and Mr Simone; and
(e)by the time Mr Golz had made his way down, Mr Watterston called Mr Golz and said that they were leaving the site, as nothing more could be resolved, in response to which Mr Golz made it known that Mr Simone could stay, but Mr Watterston responded by stating that it was a two-man job.
Mr Golz’s reference to contacting Mr Watterston to say he was on his way down the building is not supported by the agreed facts concerning the time of the telephone communications. There appears to be no reference in Mr Golz’s email to the later telephone call that Mr Golz made to Mr Watterston at 9.41 am.
On balance, and while the question is not free from doubt, I do not accept Mr Golz’s evidence-in-chief that he spoke to Mr Roach in person after Mr Watterston called him at 8.28 am. Other evidence indicates otherwise. In Ms Dunsby’s note of her telephone conversation with Mr Golz of 21 April 2020, Mr Golz is recorded as stating that he called Mr Roach. That statement is supported by the agreed fact that Mr Golz telephoned Mr Roach at 9.09 am and that they spoke for 2 minutes, 35 seconds. Mr Golz’s email to Mr Silver and Mr Geschke is not inconsistent with Mr Golz having telephoned Mr Roach, rather than speaking to him in person. For completeness, I do not give any weight to Mr Silver’s email to himself dated 22 April 2020 to which I referred at [80] above, because his source of the representation that “apparently” Melbourne Caulking was not allowed onto the site because they were not in the union is not identified. The email does not have the same significance as the contemporaneous representations made by Mr Golz, who had spoken to Mr Roach.
I find that it is likely that it was during the 9.09 am telephone call that Mr Roach told Mr Golz that Mr Watterston was not permitted onto the site, but that Mr Simone was, confirming the information that Mr Watterston had given Mr Golz in his telephone conversation at 8.28 am. Consistently with Ms Dunsby’s note of 21 April 2020, Mr Golz agreed in the course of cross-examination by counsel for the applicant that he had tried his hardest to get Mr Watterston and Mr Simone back on site, but that Mr Roach had made his position clear, namely that Mr Watterston could not work onsite until he was financial with the union. I accept that evidence of Mr Golz, as it is consistent with his contemporaneous account to which I have referred. I regard it as unlikely that when Mr Golz spoke to Ms Dunsby on 21 April 2020 that he was confused about the fact that on the previous day he had tried to convince Mr Roach to let Mr Watterston onto the site, and that he was told that Mr Simone was able to return to the site, but that Mr Watterston was not. Further support for the applicant’s case is given by Mr Golz’s email to Mr Silver and Mr Geschke of 22 April 2020, to which I referred at [65] above, and in particular Mr Golz’s representation that “I spoke to roachy To get a better understanding and heard the same story as Brendan”. In combination with Ms Dunsby’s note, that email provides substantial contemporaneous support for the applicant’s case that Mr Roach prevented, or threatened to prevent, Mr Watterston working at the site until he paid a fee to the Union.
I do not accept Mr Golz’s evidence given in cross-examination by counsel for the respondents that Mr Roach told him that the claim that he would not let the caulker start on site “was a load of bullshit”, and that he said that he had never asked the caulker to leave. That evidence, which was given in response to leading questions, was not consistent with the tenor of Mr Golz’s contemporaneous statements, and was given in circumstances where Mr Golz then gave different evidence in further cross-examination by counsel for the applicants, and accepted that insofar as he might have said something different when giving instructions to Ms Murphy of Maurice Blackburn, he did so in order not to upset the Union.
Further, Mr Golz’s evidence on this issue does not sit comfortably with the apparent logic of events. Mr Watterston and Mr Simone were motivated to undertake the work the subject of the subcontract, had purchased materials, and had secured car parking for that purpose. If there was some misunderstanding as between Mr Watterston and Mr Roach and that “it was all bullshit”, then one would expect that the contemporaneous representations of Mr Golz might have suggested that he called Mr Watterston to say so, which is a topic to which I now turn.
There was evidence from Mr Roach that Mr Golz informed him later in the day on 20 April 2020 that he had telephoned Mr Watterston and told him that he was not prevented from working on the site, and asked him to come back, and that Mr Watterston responded by stating that he was already on another job, and that he was too busy. Mr Golz was cross-examined by counsel for the respondents about his telephone conversations with Mr Watterston and I have set out relevant exchanges at [74] above. That evidence was inconsistent with his evidence-in-chief, and his evidence in re-examination to which I have referred at [62], [68], and [76(a) and (b)] above.
On the other hand, there is the contemporaneous statement of Mr Golz recorded by Ms Dunsby that he called Mr Roach, tried to convince him to let Mr Watterston and Mr Simone back on site, but that Mr Roach said that Mr Simone was allowed on site because he was financial, but that Mr Watterston was not. Further, there was no reference by Mr Golz to any denial of the claims by Mr Roach in his email to Mr Silver and Mr Geschke of 22 April 2020. On the contrary, in that email Mr Golz stated that he made it known to Mr Watterston that Mr Simone could stay and complete the caulking, but that Mr Watterston responded by stating that it was a two-man job. There was no reference in Mr Golz’s email to Mr Silver to any statement by Mr Watterston that he was “too busy” or that he had another job on the day.
I accept the evidence of Mr Watterston that Mr Golz did not invite him back onto the site, but that in response to Mr Golz’s suggestion that Mr Simone could return, Mr Watterston stated that it was a two-man job. I also accept Mr Watterston’s evidence that he did not tell Mr Golz that he had another job to go to. These findings are supported by the contemporaneous representations of Mr Golz to which I have referred above, and by the evidence of Mr Simone, who stated that they looked through their diaries to see if there were any jobs they could pick up for the day, but that they had booked out the day for that particular job. It also accords with common sense that Mr Watterston and Mr Simone would allocate two days in their diaries for the job at the Melbourne Quarter site.
If I were wrong in finding that it was in the course of the 9.09 am telephone call that Mr Roach had first made his position clear to Mr Golz, namely that Mr Watterston could not work onsite until he was financial with the Union, then a finding that Mr Golz had earlier spoken to Mr Roach in person, that is, prior to the 9.09 am call, would not affect my conclusion as to what Mr Roach said to Mr Golz, because in either event I find that Mr Roach told Mr Golz that Mr Watterston was not permitted to work on the site until he had paid his fees. Whether the conversation occurred in person, or by telephone, it occurred prior to Mr Golz’s telephone call to Mr Watterston at 9.41 am, by which time Mr Watterston had left the site, and significantly, it occurred prior to Mr Golz’s conversation with Ms Dunsby on 21 April 2020, and prior to his email to Mr Silver on 22 April 2020.
One issue on which the evidence varied was whether Mr Watterston told Mr Roach in the lunchroom that he had recently paid an amount to the Union, and whether he nominated $200. I find that after Mr Roach had made his telephone call to the Union that Mr Watterston said to him that he had recently paid an amount to the Union. That finding is supported by the evidence of Mr Simone, Mr Watterston, and Mr Roach. I do not accept the evidence of Mr Jones that Mr Watterston referred to a sum of $200 before Mr Roach made the telephone call to the Union office. Whether Mr Watterston subsequently mentioned a figure of $200 is a question which requires some analysis. In relation to contemporaneous evidence, Mr Golz referred to the $200 amount in his email to Mr Silver and Mr Geschke of 22 April 2020 which was sent at 6.12 pm. Mr Golz stated in cross-examination by counsel for the applicant that Mr Watterston had never said that he told Mr Roach that he had paid $200, and that it was Mr Roach who had told him about the $200. However, in cross-examination by counsel for the respondents Mr Golz stated that Mr Watterston had told him in his telephone conversation at 8.28 am that he had told Mr Roach that he had paid the sum of $200 to the Union, that Mr Roach said that there was no record of the payment, and that he should chase it up with the Union office.
I find it unlikely that Mr Watterston mentioned any figure of $200 to Mr Golz during his telephone calls to him. That sum did not reflect either the amount that Mr Watterston had paid to the Union for the period up to 31 March 2020, or the sum of $515 that was payable in respect of the term commencing 1 April 2020. I prefer Mr Simone’s evidence that in the lunchroom Mr Roach told Mr Watterston that he had to pay a sum of $515, which corresponds with Mr Simone’s reasonably contemporaneous statement to Ms Dunsby, and Mr Watterston’s evidence that he was required to pay $500, which corresponds with his statement to Ms Dunsby. As I have said, I also find that Mr Watterston then told Mr Roach that he had recently paid a sum to the Union. I am not persuaded to find that he mentioned a figure of $200, and I prefer Mr Simone’s evidence that no figure was mentioned. It is more likely that the sum of $200 to which Mr Golz referred in his email to Mr Silver and Mr Geschke on 22 April 2020 at 6:12 pm was first mentioned to Mr Golz by Mr Roach. Prior to sending that email, Mr Golz had spoken to Mr Roach on at least two occasions: at 9.09 am on 20 April 2020, and at 2.03 pm on 21 April 2020, which was after Mr Golz had spoken to Ms Dunsby.
In any event, the resolution of this issue is peripheral to my path of reasoning. Even if Mr Watterston had mentioned a figure of $200 to Mr Roach or to Mr Golz, which is a possibility that Mr Watterston admitted in cross-examination, that would not affect my acceptance of Mr Watterston’s and Mr Simone’s evidence that Mr Roach told Mr Watterston that he was not permitted on site unless he paid a fee to the Union which Mr Roach identified as either $515 on Mr Simone’s account, or $500 on Mr Watterston’s account, the former corresponding with the amount due for the six month term commencing 1 April 2020. As I have alluded to, Mr Simone was not really challenged in cross-examination on his evidence that Mr Watterston sought and obtained clarification from Mr Roach that he was not permitted onto the site unless he sorted out his union membership, but instead Mr Simone was asked to confirm his evidence (see [56(9)] above).
There was much attention given by the parties to the question whether Mr Roach and Mr Jones conducted a safety “spiel” before checking cards. The evidence of Mr Watterston and Mr Simone was unequivocal and direct: there was no safety “spiel”. The suggestion that Mr Roach and Mr Jones conducted the “spiel” arose in the instructions which Maurice Blackburn took from Mr Roach, and the instructions that Maurice Blackburn took from Mr Jones that were recorded in a note prepared by Mr Sutton dated 3 July 2020, and was the subject of their evidence to the Court. Other than the representations in the documents recording their instructions, there is little objective or contemporaneous support for Mr Roach’s and Mr Jones’s evidence on this topic.

There were differences between the accounts of Mr Roach and Mr Jones. To my mind, a significant difference was whether Mr Roach was standing when addressing the workers. The record of Mr Jones’s instructions to Maurice Blackburn states that he and Mr Roach “sat down with the induction group and spoke to them about safety on the site”. Mr Jones appeared to confirm this detail in his examination-in-chief when he stated that he and Mr Roach were “sitting down at one of the smoko tables”. In cross-examination, Mr Jones stated that he did not know whether Mr Roach was seated when he was talking to the group, and that his recollection was not assisted by the Maurice Blackburn note of his instructions. On the other hand, Mr Roach gave evidence that he was standing when he was addressing the workers prior to checking tickets.
Counsel for the applicant made much of the submission that the safety “spiel” and the checking of tickets as described by Mr Roach and Mr Jones could not have occurred within the nine minute window between 8.15 am when it was submitted the Lendlease induction finished, and 8.24 am when Mr Roach called the Union office. I have considered those submissions carefully, but I am not persuaded to place weight upon an analysis that depends upon making a finding as to precisely when the Lendlease induction was completed, and for what period of time a safety “spiel” might last. There was no evidence that any of the participants were monitoring their watches or clocks. And the evidence as to when the Lendlease induction finished varied. For instance, in his statement to Ms Dunsby, Mr Simone stated that the Lendlease induction commenced at 7.30 am and went for 45 minutes to an hour, and that he and Mr Watterston walked into the lunchroom at around 8.30 am. In his evidence-in-chief, Mr Simone stated that the Lendlease induction went for half an hour or 45 minutes and concluded between 8.00 am and 8.15 am. In his statement to Ms Dunsby Mr Watterston stated that the Lendlease induction began at 7.30 am and went for close to an hour. I am not persuaded to find that the Lendlease induction finished at 8.15 am, and not earlier. The second difficulty with the respondent’s submissions about timing is that in the absence of measurement, the experience of the passage of time is subjective. I have no objective means by which to measure how long a safety “spiel” described by the evidence of Mr Roach and Mr Jones ought to have taken.
Nonetheless, on the question whether a safety “spiel” occurred, I prefer the evidence of Mr Watterston and Mr Simone over the evidence of Mr Roach and Mr Jones. As I have indicated, the evidence of Mr Watterston and Mr Simone that no safety “spiel” occurred was clear and emphatic. It is not an issue about which they were likely to be mistaken, and it was not put to either that he was giving false evidence. My preference for the evidence of Mr Watterston and Mr Simone on this issue is also informed by findings as to their honesty, and my acceptance of their evidence over the evidence of Mr Roach and Mr Jones that Mr Roach told Mr Watterston that he was not permitted to commence work on the site.
It follows from the above analysis that I do not accept the evidence of Mr Roach and Mr Jones that a safety “spiel” occurred. And on the main question in the proceeding, for the foregoing reasons I am comfortably satisfied that upon Mr Watterston seeking clarification, Mr Roach conveyed to him that he could not commence work on the site until he had attended to the payment of a Union fee of $515. Whether Mr Roach referred to $515 or $500 is not material, but I consider that it is more likely that he referred to a sum of $515, being the fee due for the six month term commencing 1 April 2020. A necessary consequence is that in preferring the evidence of Mr Watterston and Mr Simone I do not accept the evidence of Mr Roach that he did not seek to prevent Mr Watterston working on the site, and to the extent that Mr Jones’s evidence did not refer to Mr Roach’s clarification that Mr Watterston was not permitted to work on the site, I do not accept his evidence either. I accept that upon being told that he could not work on the site that Mr Watterston uttered an expletive to Mr Roach. Whether he said “[eff] you” or “I am sick of you [*unts]” is not material: each expression employed the use of a profanity to convey exasperation.
Conclusions
On the basis of the above findings of fact, I conclude that on 20 April 2020 Mr Roach by his statements to Mr Watterston threatened to prevent and in a practical sense by the exercise of illegitimate authority did prevent Mr Watterston from performing work at the site until he paid a fee to the Union. Mr Roach’s conduct was reinforced by his conversation with Mr Golz in which I find that Mr Roach told Mr Golz that Mr Watterston was not permitted to commence work on the site until he attended to a payment to the Union. Mr Roach thereby both threatened to take action and took action against Mr Watterston for the purposes of s 348 of the FW Act. In referring to Mr Roach’s conversation with Mr Golz, I am not enlarging on the pleaded contravention, only treating it as a reinforcement of the contravention by Mr Roach that had already occurred, namely stating to Mr Watterston that he was not permitted to work on the site.
By [10] of the statement of claim the applicant alleged that Mr Roach acted with the intention of negating Mr Watterston’s choice to pay membership subscriptions, levies and/or dues to the Union. That allegation having been made in the proceeding, s 361 of the FW Act is engaged, and the alleged reason is presumed unless proven otherwise. The respondents denied taking the action that was alleged, and did not plead or otherwise advance a case, still less prove that the action was not taken for the reasons alleged by the applicant in [10] of the statement of claim. To the extent that it is necessary to do so, I also find that the evidence is consistent with the hypothesis that Mr Roach was actuated by the reasons alleged in [10] of the statement of claim: see Australian Red Cross Society v Queensland Nurses’ Union of Employees [2019] FCAFC; 273 FCR 332 at [74] (Greenwood, Besanko and Rangiah JJ), and I therefore find that the reasons alleged in [10] of the statement of claim are established. These reasons amount to an intent to exercise a sufficient degree of compulsion, that is, denial of choice, as to amount to an intent to coerce Mr Watterston to pay membership fees to the Union.
As I identified towards the outset of these reasons, in relation to my finding that Mr Roach in fact prevented Mr Watterston from working on the site, it is a necessary element of action with intent to coerce that there is the use of unlawful, illegitimate or unconscionable conduct: ABCC v Hall at [25]. I find that it was not legitimate for Mr Roach to seek to induce Mr Watterston to pay a fee to the Union by asserting illegitimate authority to deny him access to work on the site. To do this was to interfere with the ability of Melbourne Caulking to undertake the work that it had contracted to perform on the site for the purpose of seeking to have Mr Watterston act otherwise than in accordance with the free choice that he had made not to continue his financial membership of the Union, where freedom of association is one of the values enshrined in the express objects of Part 3-1 of the FW Act and is to be regarded as an industrial norm: FW Act, s 336(1)(b), and see the discussion by Reeves J in Australian Building and Construction Commissioner v Ravbar [2018] FCA 1196 at [82]-[85], and Auimatagi v Australian Building and Construction Commissioner [2018] FCAFC 191; 267 FCR 268 at [161] and the authorities cited therein. For the same reasons, by reference to all the circumstances, the action of Mr Roach is fairly to be characterised as unconscionable as an evaluative conclusion, in that it departed substantially from acceptable behaviour in an industrial context for the illegitimate object of seeking to interfere with Mr Watterston’s free choice in relation to his prior decision to cease membership of the Union. Further, as I hold below that the statements by Mr Roach to Mr Watterston constituted misrepresentations in contravention of s 349 of the FW Act, the action taken by Mr Roach was also unlawful.
As to the claimed contravention of s 349 of the FW Act, which I set out at [8] above, the applicants must prove the following elements –
(a)that Mr Roach made the representation alleged, namely, a representation to Mr Watterston to the effect that in order to perform work on the site, including the work he had attended to perform that day, he had to pay membership subscriptions, levies or dues to the Union, or at least a representation not substantially different therefrom;
(b)that the representation was about Mr Watterston’s obligation to engage in industrial activity;
(c)that the representation was false or misleading; and
(d)that Mr Roach knew or was reckless as to whether the representation was false or misleading.
In written submissions, counsel for the respondents stated that there was no issue that if the applicant’s version of the disputed conversation were accepted, then the first three elements set out at [234] above would be established. I have accepted the substance of the evidence of Mr Watterston and Mr Simone, and I have held that the applicant’s claims as to the substance of what Mr Roach said has been established. The acceptance that the representation was about Mr Watterston’s obligation to engage in industrial activity, namely the payment of membership fees to the Union, was correct in light of the authorities to which I referred at [10] above.
The question whether Mr Roach knowingly or recklessly made the impugned representation was hardly touched upon by counsel for the parties in their closing submissions. I expect that is because Mr Roach’s evidence on this issue in cross-examination, which I have set out at [122] above, was unambiguous. On the basis of that evidence I find that Mr Roach knew that the representation that he made to Mr Watterston was false and misleading. On the basis of the same evidence, I make an alternative finding that Mr Roach was reckless as to the false or misleading nature of the representation.
It is also necessary to consider the exclusion in s 349(2) of the FW Act, that is relied on by the respondents in their defence on the ground that Mr Watterston would not be expected to rely on the misrepresentation. There is not clear authority on the question whether s 349(2) and the cognate provision in s 345(2) of the FW Act are directed to the state of mind of the representor, or to the objective circumstances of the representation. That question arises because the passive tense used in s 349(2) might be thought to direct attention to an objective inquiry having regard to all the circumstances in which the representation was made rather than the subjective state of mind of the representor.
In Adcock v Blackmores Ltd [2016] FCCA 265; 259 IR 209, Judge Cameron at [97] treated the provision as requiring an objective enquiry –
… I was not taken to any authorities on the meaning of those words. I read them to mean that s 345(1) will not apply if a reasonable person in the circumstances of the person making the misrepresentation would not, at the time the representation is made, expect the recipient of the misrepresentation to rely on it. The words “would not be expected to rely on it” imply an objective test and, to operate fairly, must relate to the representor’s state of mind. In that connection, if s 345(2) were to operate by reference to a hypothetical reasonable person without knowledge of the dealings between the parties to the misrepresentation, it would be possible that contextual matters which could shed light on whether the recipient of the misrepresentation would be expected to rely on the misrepresentation might not be taken into account. …
The decision of Judge Cameron was upheld on appeal by Flick J: Adcock v Blackmores Ltd [2016] FCA 893. However, there was no specific consideration by Flick J of the correctness of Judge Cameron’s exposition set out above.
The decision at first instance of Judge Cameron in Adcock v Blackmores Ltd was cited by Tracey J in Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (The Syme Library Case) at [277] when summarising the submissions of counsel for the applicant, which included a submission that the test for the engagement of the exception in s 345(2) of the FW Act was objective. At [303], Tracey J resolved the issue by directing attention to the intention of the makers of the statements and also the fact that the persons to whom the statements were made, at least to an extent, relied on the statements. These matters supported a finding that it was not the case that the representee would not be expected to rely upon the statements.
On the other hand, in Tomvald v Toll Transport Pty Ltd [2017] FCA 1208 at [247] Flick J treated s 345(2) as calling for an inquiry as to whether the representor had an expectation as to whether the representee would or would not rely upon what he was being told, where the fact that the representee was not in fact misled was irrelevant.
It is unnecessary to resolve what authorities are to be preferred, and the proper construction of s 349(2) should await a case where resolution of the issue is determinative of the outcome. That is because counsel for the respondents accepted in closing submissions that if the applicants established that the conversations alleged in [8] of the statement of claim occurred as alleged, then the contentions that the respondents had made about s 349(2), in light of the evidence adduced, fell away.
For the above reasons, I find that the applicant has established that by making the impugned statements to Mr Watterston, Mr Roach contravened s 349 of the FW Act.
It was not in issue that if I made findings against Mr Roach such as those that I have made, then Mr Roach’s conduct is to be attributed to the Union.
Orders
Having made the above findings and reached the above conclusions, I will hear counsel as to orders for the further conduct and disposition of this proceeding relating to the relief that the applicant seeks.

I certify that the preceding two hundred and forty-five (245) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Wheelahan.
Associate:
Dated: 3 March 2023

File number:	VID 23 of 2021
Judgment of:	WHEELAHAN J
Date of judgment:	3 March 2023
Catchwords:	INDUSTRIAL LAW – alleged contraventions of ss 348 and 349 of the Fair Work Act 2009 (Cth) by union and union representative at the site of the Melbourne Quarter project – applicant claimed that the representative told a caulking subcontractor during a site induction that the subcontractor could not work on the site unless he paid outstanding union fees – where evidence of key witnesses differed as to what was said during the induction – examination of contested evidence – evidence of the employees of the subcontractor generally accepted – contraventions established
Legislation:	Evidence Act 1995 (Cth) ss 64(4), 97, 140 Fair Work Act 2009 (Cth) ss 336, 343, 345 347, 348, 349, 361, 361, 701, 793 Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth), Schedule 1, Part 3, item 323
Cases cited:	Adcock v Blackmores Ltd [2016] FCCA 265; 259 IR 209 Adcock v Blackmores Ltd [2016] FCA 893 Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (The Quest Apartments Case) [2017] FCA 1398 Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (The Syme Library Case) [2018] FCA 1142 Australian Building and Construction Commissioner v Hall [2018] FCAFC 83; 261 FCR 347 Australian Building and Construction Commissioner v Molina [2020] FCAFC 97; 277 FCR 223 Australian Building and Construction Commissioner v Ravbar [2018] FCA 1196 Australian Building and Construction Commissioner v Roach (The Melbourne Quarter Case) (Ruling No 1) [2021] FCA 1153 Australian Building and Construction Commissioner v Roach (The Melbourne Quarter Case) (Ruling No 2) [2021] FCA 1210 Australian Federation of Air Pilots v Regional Express Holdings Ltd [2021] FCAFC 226; 290 FCR 239 Australian Red Cross Society v Queensland Nurses’ Union of Employees [2019] FCAFC 215; 273 FCR 332 Auimatagi v Australian Building and Construction Commissioner [2018] FCAFC 191; 267 FCR 268 Banditt v The Queen [2005] HCA 80; 224 CLR 262 Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336 Broadhurst v The Queen [1964] AC 441 Browne v Dunn (1893) 6 R 67 Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Competition and Consumer Commission [2007] FCAFC 132; 162 FCR 466 Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2015] FCAFC 25; 230 FCR 298 Esso v Australian Workers’ Union [2017] HCA 54; 263 CLR 551 Forrest v Australian Securities and Investments Commission [2012] HCA 39; 247 CLR 486 Fox v Percy [2003] HCA 22; 214 CLR 118 Harris v Warre (1879) 4 CPD 125 Newton v Australian Postal Corporation (No 2) [2019] FCA 2192; 292 IR 396 R v Jovanovich (1997) 42 NSWLR 520 R v Uhrig (unreported, NSW Court of Criminal Appeal, 24 October 1996) Seltsam v McGuiness [2000] NSWCA 29; 49 NSWLR 262 Société d’Avances Commerciales (Société Anonyme Egyptienne) v Merchants’ Marine Insurance Co (The Palitana) (1924) 20 Ll L Rep 140 State Rail Authority of New South Wales v Earthline Constructions Ltd (in liq) [1999] HCA 3; 160 ALR 588 Swain v Waverley Municipal Council [2005] HCA 4; 220 CLR 517 Tomvald v Toll Transport Pty Ltd [2017] FCA 1208 Watson v Foxman (1995) 49 NSWLR 315
Division:	Fair Work Division
Registry:	Victoria
National Practice Area:	Employment and Industrial Relations
Number of paragraphs:	245
Date of hearing:	21-23 September, 4-7 October 2021
Counsel for the Applicant:	Mr M Follett
Solicitor for the Applicant:	Lander & Rogers
Counsel for the Respondents:	Mr P Boncardo and Ms E Beljic
Solicitor for the Respondents:	Maurice Blackburn

ORDER MADE BY:	WHEELAHAN J
DATE OF ORDER:	3 MARCH 2023