JKC Australia LNG Pty Ltd v CFMEU & Ors
[2016] FWC 536
•15 JULY 2016
| [2016] FWC 536 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.505 - Application to deal with a right of entry dispute
JKC Australia LNG Pty Ltd
v
Construction, Forestry, Mining and Energy Union(CFMEU); Ms Rolly Cummins; "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU); Mr Bryan Wilkins; Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU); Michael Haire
(RE2015/875)
COMMISSIONER SIMPSON | BRISBANE, 15 JULY 2016 |
Alleged dispute concerning Right of Entry at Ichthys Onshore Construction Project – Finding that FWC has Jurisdiction to deal with dispute – Conduct of Union Officials taken to be conduct of Unions – Conduct of Officials inappropriate and unacceptable – No repetition of conduct for extended period - Findings themselves and prospect of future orders sufficient to resolve the dispute.
[1] On 19 June 2015 JKC Australia LNG Pty Ltd (the Applicant) made an application under s.505 of the Fair Work Act 2009 (the FW Act) for the Fair Work Commission (FWC) to deal with a Right of Entry Dispute between it and the Construction, Forestry, Mining and Energy Union (CFMEU); (the First or 1st Respondent) Rolly Cummins; (the Second or 2nd Respondent) “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) (the Third or 3rd Respondent) Bryan Wilkins; (the Fourth or 4th Respondent) Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia;(CEPU) (the Fifth or 5th Respondent) and Michael Haire. (the Sixth or 6th Respondent).
[2] The matter was listed for hearing on 2, 3 and 4 February 2016 in Darwin. At the hearing the Applicant was represented by Mr C J Murdoch of Counsel instructed by Martin Osborne of Norton Rose Fulbright. The First, Second, Fifth and Sixth Respondents were represented by Mr C Dowling of Counsel instructed by Mr J Kennedy of Hall Payne Lawyers, and the Third and Fourth Respondents were represented by Mr G Sivaraman of Maurice Blackburn Lawyers.
[3] The 3rd Respondent filed a separate s.505 application being matter RE2015/1528. At the commencement of the hearing in Darwin this application was formally withdrawn.
[4] The Applicant filed witness statements from John Casey 1, Senior Employee Relations Advisor, JKC, dated 28 August 2015; Jacqueline Garland2, Senior Employer Relations Consultant, Construction Services Northern Territory (CSNT) dated 28 August 2015; Daniel Lee3, Principal Employee Relations Consultant, CSNT, dated 28 August 2015; Simon Spratt4, UGL CH2M Joint Venture Site Manager, UGL Engineering Pty Ltd dated 28 August 2015; and Amy Richards5, Senior HR/IR Advisor, UGL, dated 28 August 2015.
[5] The 1st, 2nd, 5th and 6th Respondents filed a statement from Mr Cummins 6, Organiser, CFMEU, dated 25 September 2015 and a statement of Mr Haire7, Organiser CEPU, dated 25 September 2015, and the Third and Fourth Respondents filed a witness statement of Mr Wilkins8, dated 2 October 2015.
[6] The Applicant filed statements in reply from Mr Lee 9, dated 22 October; Ms Garland10, dated 23 October and Ms Richards11, dated 24 October 2015.
[7] The Applicant filed an Outline of Submissions on 13 November 2015. The 1st, 2nd, 5th and 6th Respondents filed an Outline of Submissions on 9 December, as did the 3rd and 4th Respondent.
[8] The 3rd and 4th Respondent filed a supplementary statement of Mr Wilkins 12, dated 7 December 2015. The Applicant filed a Reply to the Submissions of the 1st, 2nd, 5th and 6th Respondent, and a Reply to the Submissions of the 3rd and 4th Respondent, on 23 December 2015. The Applicant also filed a Supplementary Statement of Ms Richards, dated 17 December 201513. The Third and Fourth Respondent filed a Second Supplementary Statement of Mr Wilkins on 1 February 201614.
[9] At the conclusion of the hearing I adopted the program proposed by the parties that the Applicant file Final Submissions on 15 March 2016, the Respondents file Final Submissions on 12 April and the Applicants reply on 27 April with oral submissions on 4 May.
Background
[10] The Applicant is in charge and control of the Ichthys Onshore Construction Project and Project site. 15 The site is a construction site of significant size comprised of many different construction areas and engaging a number of subcontractors. UGL is part of a joint venture with CH2MHill and is contracted to the Applicant to construct the Combined Cycle Power Plant (CCPP) as part of the larger onshore facilities.16 CSNT is engaged to, amongst other things, manage and facilitate union Right of Entry (ROE) on the Project.17
Subject of Dispute
[11] On 10 June 2015, Mr Cummins, Mr Wilkins and Mr Haire exercised a ROE to the area of the Project known as CCPP Area 7 pursuant to s.484 of the FW Act. This is the area being constructed by UGL. The responsible subcontractor is UGL.
[12] The Applicant asserts that when exercising a ROE on 10 June 2015 both Mr Cummins and Mr Haire
[13] The Applicant asserts that the combined union meeting on 10 June was organised by Mr Cummins, Mr Wilkins and/or Mr Haire.
[14] The Applicant asserts when exercising ROE on 12 June 2015, Mr Cummins and Mr Wilkins
[15] It was asserted by the Applicant that the combined union meeting on 12 June 2015 was organised by Mr Cummins and Mr Wilkins.
[16] The Applicant asserted that by operation of s.793(1) of the FW Act, the conduct of Mr Cummins, Mr Wilkins and Mr Haire is taken to be the conduct respectively of the CFMEU, AMWU and CEPU.
[17] The Applicant submits that as could be seen from the evidence, there remained a dispute about the appropriateness of the conduct of the 3 officials on 10 and/or 12 June 2015. The Applicant argues that the refusal of the 3 officials to acknowledge the inappropriateness of the conduct increases the likelihood that Mr Cummins, Mr Wilkins or Mr Haire, or other permit holders of the CFMEU, AMWU and CEPU would repeat the conduct in the future, and this remains a subject of dispute between the parties.
[18] The Applicant characterises the dispute as being “about the circumstances and manner in which Mr Cummins, Mr Wilkins and Mr Haire and other permit holders of the First, Third and Fifth Respondents may exercise a ROE under the FW Act.”
[19] The Applicant sought orders to deal with what it said was the respective willingness and propensity of the three officials to engage in inappropriate conduct when exercising ROE. The Applicant argued the three officials displayed a troubling propensity to ignore relevant provisions of the FW Act, directions from the occupier and safety considerations in favour of their own industrial agenda, and there is nothing to provide the FWC with satisfaction that the Respondents would not act so again if it suited their industrial interests.
[20] The Applicant says the three unions have put nothing before the FWC to give the FWC satisfaction that they accept or appreciate that conduct such as that engaged in by their three officials was inappropriate and unacceptable.
[21] The Applicant says there is nothing before the FWC to indicate the three unions have to date taken, or propose to or will in the future take, any action to influence or control the conduct of their permit holders during ROE to the site to ensure conduct such as this does not occur. The Applicant said this was concerning as it had gone to some lengths to advise each of the three unions of the Applicants reasonable expectations for the lawful conduct of permit holders for exercising ROE 18.
[22] The Applicant sought the following orders in respect of Mr Cummins, Mr Haire and Mr Wilkins. The primary submission was that an order should be made that each official not enter the Project. In the alternative, various orders were sought including that the officials undertake training in the statutory ROE scheme under the FW Act, and imposing a range of conditions upon the future exercises of ROE at the Project by each official, including:
(i) a requirement to comply with all site entry conditions, requirements and procedures;
(ii) a requirement to follow all reasonable directions given by JKC’s representatives and the designated escort;
(iii) a requirement to remain with and not walk away from the designated escort;
(iv) a requirement to strictly adhere to start and finish times for meetings within mealtimes and other breaks;
(v) a requirement not to hold meetings or discussions in locations other than those assigned by the occupier for that purpose or that are the default locations under section 492 of the FW Act;
(vi) a requirement to not hold, organise, attend or participate in combined union meetings, joint meetings, or meetings or discussions with any employees other than employees whose industrial interests the union is entitled to represent; and
(vii) a requirement to not organise, encourage or incite unlawful industrial action or otherwise cause workers engaged to work on the Project to not work or cease work.
[23] In addition, the Applicant sought an order imposing similar conditions upon future exercises of ROE at the Project by any permit holder of the CFMEU, AMWU or CEPU.
[24] The Respondents opposed jurisdiction, and in the event of a finding of jurisdiction disputed a wide range of factual issues and also the making of any orders. In summary the First, Second, Fifth and Sixth Respondents put their opposition this way :
(a) there is no dispute of the type contemplated by s.505;
(b) the conduct of the Second and Sixth Respondent does not justify the making of any such order;
(c) there was no relevant obligations imposed on the First and Fifth Respondents; and
(d) the orders sought are directed at penalising the Respondents and not at resolving any dispute about Part 3-4 of the Act.
[25] The 3rd and 4th Respondents opposition to the application was on similar grounds.
Legislative Scheme
[26] Part 3-4 of the FW Act deals with right of entry including a number of sections imposing obligations on permit holders including: s.484 that provides entry rights to hold discussions; s.491 that provides the permit holder must comply with any reasonable request by the occupier of the premises for the permit holder to comply with an occupational health and safety requirement that applies to the premises; s.492 that provides the mechanism for determining where the permit holder must conduct interviews or hold discussions; s.492(b)that provides thepermit holder must comply with any reasonable request by the occupier of the premises to take a particular route to reach a room or area of the premises determined under s.492; and s.500 that provides a permit holder exercising, or seeking to exercise, rights in accordance with Part 3-4 must not intentionally hinder or obstruct any person, or otherwise act in an improper manner.
[27] Section 505 of the FW Act provides that the FWC may deal with a dispute about the operation of Part 3-4 and the basis on which it can do so.
[28] Section 793 provides as follows:
“793 Liability of bodies corporate
Conduct of a body corporate
(1) Any conduct engaged in on behalf of a body corporate:
(a) by an officer, employee or agent (an official) of the body within the scope of his or her actual or apparent authority; or
(b) by any other person at the direction or with the consent or agreement (whether express or implied) of an official of the body, if the giving of the direction, consent or agreement is within the scope of the actual or apparent authority of the official;
is taken, for the purposes of this Act and the procedural rules, to have been engaged in also by the body.
State of mind of a body corporate
(2) If, for the purposes of this Act or the procedural rules, it is necessary to establish the state of mind of a body corporate in relation to particular conduct, it is enough to show:
(a) that the conduct was engaged in by a person referred to in paragraph (1)(a) or (b); and
(b) that the person had that state of mind.
Meaning of state of mind
(3) The state of mind of a person includes:
(a) the knowledge, intention, opinion, belief or purpose of the person; and
(b) the person’s reasons for the intention, opinion, belief or purpose.
Disapplication of Part 2.5 of the Criminal Code
(4) Part 2.5 of Chapter 2 of the Criminal Code does not apply to an offence against this Act.
Note: Part 2.5 of the Criminal Code deals with corporate criminal responsibility.
(5) In this section, employee has its ordinary meaning.”
[29] The Applicant asserts that the conduct of Mr Cummins, Mr Wilkins and Mr Haire on 10 and 12 June was respectively engaged in within the scope of their actual or apparent authority on behalf of the CFMEU, AMWU and CEPU, as was the conduct of the delegates of the three unions relating to those days.
[30] The Applicant submits that the Respondents acted in breach of Part 3-4 of the FW Act, particularly in regard to not holding discussions during mealtimes and other breaks 19, not complying with reasonable requests to comply with occupational health and safety requirements20, not complying with a reasonable request to conduct discussions in a particular room21, not complying with a reasonable request to take a particular route to reach a room22, and intentionally hindering or obstructing any person, or otherwise act in an improper manner while exercising or seeking to exercise rights under Part 3-423.
Interpretation of Part 3-4 of the FW Act.
[31] The Applicant submitted that the standard of conduct expected of permit holders has, since the earliest days of the Workplace Relations Act 1996 (Cth) (the WR Act 1996), been high. The Applicant referred to the following passage of a decision of Justice Munro in Vivienne Daniels v Joe Patti and another 24;
“Permit holders exercise a power that causes them to be exercising a public right and duty. Those rights, powers and duty stem from the statute. Due diligence, reasonable civility, and avoidance of unnecessary obstruction in the exercise of the powers under Division 11A are not only to be expected, they are a statutory condition of the powers being retained.
It is yet to be seen what may be said to justify a union representative indulging in alleged conduct that may leave him open to the accusation that he has acted like a union goon, or set up a fracas and commotion by barking like a dog, or whatever. But whatever may be said, very little justification for such conduct could be expected to apply to an agent exercising a public power and duty under the Act. The proposition needs only to be put for one point to be relatively obvious. If Ms Daniels, who has similar powers, an officer of the Australian Tax Office, or the like official so conducted themselves in exercise of their respective inspectorate and investigative powers, there would be little expectation of justification being made out.”
[32] The Applicant argued that since the early ROE provisions in the WR Act 1996, the legislative trend has been towards tighter controls on permit holders. The Applicant referred to the Building Industry Royal Commission in 2003 and recommendation 71 of that Royal Commission that sanctions against permit holders be extended to include suspension and placing conditions on permits.
[33] The Applicant noted that the WR Act 1996 was substantially amended on 26 March 2006 by the Workplace Relations Amendment (Work Choices) Act 2005 (Cth) (the WR Act 2006), and the amended Act had a new ROE regime, at Part 15, reflecting the recommendations of the Royal Commission.
[34] It was submitted that the changes as implemented by the WR Act 2006 largely remain in Part 3-4 of the FW Act, which included; effectively retaining s.742 of the WR Act 2006 at s.513; retaining the ability for permits to be suspended or subject to conditions 25; and requiring permits to be suspended to revoked in certain circumstances26.
[35] The Applicant also relies on the decision in Austral Bricks (VIC) Pty Ltd 27 and specifically paragraphs 26 to 35 in that decision and Australasian Meat Industry Employees’ Union v Fair Work Australia28 at paragraphs 56 to 60.
[36] The Applicant submits that Part 3-4 of the FW Act should be considered in this context.
[37] The 1st, 2nd , 5th and 6th Respondents referred to the decision in Meneling Station Pty Ltd v Australian Meat Industry Employees Union 29 where Keely, Gray and Ryan JJ, in construing a provision of an award and s 42 of the Conciliation and Arbitration Act 1904 (Cth), observed:
“The right of entry contemplated by s.42A of the Act is available at any time during working hours, and for other purposes and the inspection of roster, time and wages records. It is also subject to conditions. Clause 23 has been framed, in our view to strike a balance between the interest of the union party to an award and monitoring its observance and protecting breaches of it by an employer, and the interest, on the other hand, of an employer in carrying on business without interruption or harassment. A construction of the clause which favours one of those interests to a point where the other can be given scarcely recognition is, therefore, to be avoided unless the language of the clause compels its adoption. Accordingly, since clause 23 of the award provides a right to inspect records, it is reasonable to construe it as incidentally conferring a specific, preliminary, right to enter premises for that purpose.”
[38] The 1st, 2nd, 5th and 6th Respondents said a similar approach should be adopted in construing the terms of Part 3-4 of the FW ACT and also referred to AMIEU v FWA 30.
[39] The 3rd and 4th Respondent argue that punitive objects of the ROE provisions in the WR Act have been removed and recent amendments to the FW Act encourage parties to reach agreement on how entry will be facilitated, including regarding the venue and conditions of the ROE. It was said that orders dealing with ROE disputes are intended to resolve the matter at hand, as opposed to punishing past conduct. Further it is open for the FWC to make recommendations rather than orders to resolve the dispute.
Jurisdiction
[40] The 1st, 2nd, 5th and 6th Respondents referred to the decision in CFMEU and others v Bechtel Construction (Australia) Pty Ltd and another 31concerning a dispute about ROE. At paragraph [21] of that decision the Full Bench accepted findings of fact from the decision at first instance that whilst complaints were about past conduct, on the facts before the Commission there was a dispute about whether the permit holders would continue to engage in that conduct.
[41] The 1st, 2nd, 5th and 6th Respondents submitted that the effect of the Bechtel decision is that complaints about past conduct can only give rise to a dispute about the operation of Part 3-4 if the evidence establishes that the relevant conduct will continue. It is argued that there is no basis to conclude that the relevant conduct will continue. The 3rd and 4th Respondents similarly argue that CFMEU v Bechtel is authority for the proposition that orders pursuant to the ROE provisions must be issued to resolve a dispute at hand, not punish a party for past conduct.
[42] It was argued by the Respondents that the dispute does not continue because all witnesses in this matter maintained under cross examination that there had been no recurrence of the alleged conduct and nor had there been any issue with ROE whatsoever, and on that basis the FWC can be satisfied there is no dispute.
[43] The 1st, 2nd, 5th and 6th Respondents referred to specific examples in the evidence of Mr Casey 32, Ms Garland33, Mr Spratt34, Ms Richards35 and Mr Lee36 that supported the fact of there having been no issues between the parties concerning ROE matters since June 2015. I accept on the evidence that this submission is correct.
[44] The 1st, 2nd, 5th and 6th Respondents also submitted that the Applicant’s claim of the existence of an on-going dispute based on the officials not acknowledging or understanding their conduct and therefore repeating it must fail because, firstly, the evidence of there having been no issues in relation to ROE for 12 months and, secondly, because it is inconsistent with the evidence.
[45] The 1st, 2nd, 5th and 6th Respondents referred to the evidence of Mr Cummins where he agreed that it is important that visitors follow the direction of escorts 37, if a similar circumstance arose again he would have a discussion with the relevant company and come to an agreement on the meeting location38, the present allocated meeting room is adequate in size and that the CFMEU is happy with it39, and Mr Cummins has not sought to hold any joint meetings since 12 June 201540.
[46] The 1st, 2nd, 5th and 6th Respondents also referred to the evidence of Mr Haire under cross examination in relation to what occurred on 10 June, that he would do it differently next time around 41, and the reason he didn’t do it differently on 10 June 2015 was that he wasn’t prepared or ready for it, that it was the first time he had ever experienced that sort of thing before and that everything that has happened since has given him cause to know that he would do it differently next time.42
[47] In relation to Mr Wilkins his evidence under cross examination included that if similar circumstances occurred again, he would not behave in the same way. 43
[48] It was argued that the FWC ought to have sufficient confidence as a result of this evidence and the time that has elapsed that the conduct is unlikely to occur again. The evidence included that Mr Cummins had attended the CCPP area at least 14 times since June 2015 44 and other areas at least 100 times45, the CFMEU is happy with the current meeting room,46 since June 2015 there has been no discussion between the AMWU, CEPU and CFMEU about a joint meeting at the project,47 if the meeting requirements of the CFMEU change in the future, they would hold a discussion with the company and come to an agreement,48 and Mr Cummins understands his obligation to remain with his escort when exercising a right of entry on the project.49
[49] Mr Haire’s evidence in chief included that a representative of the CEPU has attended the CCPP area of the project at least seven times since June 2015, 50 that those meetings have been held in a different crib shed in the laydown area,51 and that the union is satisfied with the arrangement.52 Further his evidence was that there had been no discussion between the AMWU, the CEPU and the CFMEU since June 2015 about a joint meeting on the project, there are no plans or intent to hold any joint meetings53 and if their meeting requirements were to change in the future, the CEPU would approach the company representative or CSNT representatives and attempt to sort it out.54
[50] Mr Wilkins’ evidence in chief included that since 12 June 2015 there have been no discussions between the unions about a joint meeting, 55 if his meeting room requirements changed for future meetings he would raise it with CSNT and request a more adequate location,56 and he understands his obligation to stay with his escort.57
[51] The Applicant argues that the mere fact that there has been no recurrence of the alleged conduct is not evidence that the dispute is not on-going. The Applicant says the evidence of the union officials as to what they would do if faced with similar circumstances in the future must be viewed in the context of their conduct on 10 and/or 12 June 2015.
[52] It was put by the Applicant that Mr Cummins had options available to him on 10 and 12 June, but despite this, elected not to pursue the option of having discussions with the Applicant or its representatives. There was no evidence that Mr Cummins was unable to have discussions on 10 or 12 June about the appropriateness of the East End Training Room allocated for the meeting if that was in reality his concern. Further, Mr Cummins was aware of his obligations on 10 and 12 June including remaining with his escort and complying with the directions of his escort 58 but elected not to comply with those directions.
[53] The Applicant argues that similarly Mr Haire understood he had other options available to him on 10 June 59 however elected not to pursue them despite being aware of his obligations including staying with his escort.60 The same was said of Mr Wilkins.61
[54] I will set out the facts of the dispute in greater detail in the course of the decision below however, I have been satisfied that certain conduct complained of by the Applicant in respect of each of the 2nd, 4th and 6th Respondents was inappropriate and unacceptable and in each case the official has not expressly accepted this.
[55] I accept the submission that the evidence in this matter deals in the main with past conduct, however I am satisfied on the evidence that the dispute about that conduct has not been resolved in that no resolution has been achieved between the parties about whether the conduct that occurred on 10 and 12 June 2015 was inappropriate and/or unacceptable and whether any or all of that conduct if repeated would be inappropriate or unacceptable.
[56] The dispute has not passed as to what is or is not inappropriate or unacceptable conduct and remains a live issue. The Commission has jurisdiction under section 505 to deal with the dispute on that basis. The Project is on-going and ROE continues on a very regular basis at the site. Further, I do not accept the submission made for the 1st, 2nd, 5th and 6th Respondents that it is necessary for the FWC to be satisfied that the evidence establishes the relevant conduct will continue. It is sufficient that a dispute remains about conduct in June 2015 between the parties, leaving alive the likelihood that inappropriate or unacceptable conduct may occur again in the future based on that dispute in order to establish jurisdiction.
[57] Submissions were also made about the nature of the orders sought by the Applicant and whether they were directed at penalising past conduct, or resolving the dispute. I will address that matter in my conclusions.
Is an Obligation Imposed on Registered Organisations?
[58] The Applicant asserted that by operation of s.793(1) of the FW Act, the conduct of Mr Cummins, Mr Wilkins and Mr Haire is taken to be the conduct respectively of the CFMEU, AMWU and CEPU.
[59] The 1st, 2nd 5th and 6th Respondent assert that as registered organisations, the unions are not permit holders and Part 3-4 only imposes obligations on occupiers and permit holders, not on registered organisations.
[60] It is submitted s.793 thereby does not operate to transmit obligations by the officers or employees to the registered organisations. That is, whilst the unions might be taken to have engaged in the same conduct as the permit holders, there was no relevant legislative prohibition imposed on the registered organisations, as they are not permit holders. On that basis, it cannot be held that the registered organisations contravened any section of Part 3-4.
[61] The Applicant submits the Respondents position is misconceived, and that s.793 provides that any “any conduct” engaged in or on behalf of a body corporate, by an official of the body within the scope of his or her actual apparent authority, is taken, for the purposes of the FW Act and the procedural rules, to have been engaged in also by the body corporate. It provides for any conduct to be taken for the purposes of the FW Act to be by the relevant body corporate, and is not limited to certain provision of the FW Act. On this basis the Applicant says there is no basis to exclude s.505 from its application.
[62] I am inclined to the view that the Applicants interpretation is correct, and that by virtue of s.793 the 1st, 3rd and 5th Respondents can have orders made against them that ensure an official acting on their behalf complies with the conditions of their permit and any other conditions imposed on a ROE exercised by the official. However for reasons set out below I have determined not to make orders against the 1st, 3rd or 5th Respondents so nothing ultimately turns on my view regarding that matter.
Consideration
[63] There was no dispute that the Applicant had a procedure for facilitating ROE to the site by union officials or union organisers. 62 The procedure required that union officials provide 24 hours written notice of their intention to access the site; submit a ROE notice to the email address specifically established for ROE requests; specify on the ROE which contractors the union officials wish to visit; and specify the proposed approximate time of entry.
[64] Once received, representatives of CSNT review the ROE notice to confirm it complies with the FW Act. If the ROE is compliant the CSNT advisor will forward the ROE to the relevant subcontractor representative. 63
[65] Union officials receive a standard email communication of the acceptance of the notice. This email also states the conditions of entry. Union officials wishing to enter the site are advised that their entry is approved subject to:
(1) the official holding any discussions with any eligible employees who wish to take part in discussions with them at the designated meeting location;
(2) the union official complying with the site safety, security and access requirements as determined by the Applicant, and immediately complying with any direction given by an authorised nominated escort or JKC representative of safety and security on the site;
(3) entry being during work hours; and
(4) during the employees’ meal breaks. 64
[66] A CSNT representative or delegate of the relevant subcontractor escorts a union official during a ROE visit. The 2nd, 4th and 6th Respondents each confirmed they understood these requirements when exercising ROE and understood their entry was approved subject to these matters in the emails they received. 65
[67] Once the request for entry had been approved, the relevant subcontractor identifies and allocates a suitable location for the purpose of the meeting with employees. Employees are advised of the location for the meeting during the Pre-start briefing on the morning of the day on which the meeting is held. 66
[68] It is a standard requirement for all ROE’s to the site that the union official complete site visitor induction. Site visitor induction must be completed for each entry; regardless of how many times a union official has visited the site. 67
[69] All visitors to the site are required to complete a Site Visitor Induction during which the conditions of entry to the site are explained to them, and visitors must complete a Site Visitor Induction Checklist. 68
[70] Both the Site Visitor Induction and Site Visitor Induction Checklist inform visitors of the importance of remaining with the site escort at all times. A visitor is required to agree to comply with the safety rules and instructions from their escort whilst on site. The three officials all confirmed they understood this requirement. 69
[71] John Casey as JKC’s Senior Employee Relations Advisor gave evidence for the Applicant that the relevant subcontractor, in this instance UGL, is responsible for identifying the suitable room in which union officials may hold discussions. 70
[72] The 2nd, 4th and 6th Respondents each gave evidence that they understood s.492(3) regarding circumstances where there is no agreement between a permit holder and occupier concerning the room or location, and in such circumstances a permit holder may hold discussions in any room or area where one or more of the persons ordinarily take meal or other breaks. 71
Was there a standing agreement to use the Stores Area?
[73] It was argued that the 1st Respondent and UGL had an agreement that the Stores Area would be used for meetings when the allocated meeting room was inappropriate. 72 Mr Cummins said that from around June 2014, once the workforce had become sufficiently large that the training room was inadequate, he started to conduct some meetings in the electrical store (Stores Area) with the agreement of UGL management. He said the agreement was to the effect that if there were too many people to use the training room, he would just move to the Stores Area. He said the UGL, CCPP and CSNT representatives never raised an issue with this approach.73
[74] The final submissions of the 1st, 2nd, 5th and 6th Respondents rely on the evidence of witnesses for the Applicant to argue this point. Ms Richards, the Senior HR/IR Advisor for UGL, said that she knew on 10 June 2015 that the Stores Area had previously been used for a meeting 74 and she had agreed to that location on previous occasions and would again if requested. Ms Richards clarified this evidence saying “No, not today because now we have other locations available for them.” In the evidence of Ms Garland, the Senior Employer Relations Consultant for CSNT, Ms Garland accepted that Mr Cummins had advised her on 12 June that he had met members in the Stores Area before75 but that she did not check with Ms Richards. Ms Garland said this comment was made in the car.76 Mr Spratt, UGL CH2M Joint Venture Site Manager, acknowledged that CFMEU members had met in the Stores Area prior to 10 June and after 12 June.77 Mr Lee, Principal Employee Relations Consultant, CSNT, agreed that it was UGL and specifically Ms Richards who made the decision as to the location of the particular meeting area.78
[75] It was argued that the 3rd Respondent also had such an agreement with UGL on the basis that the AMWU had conducted meetings in the Stores Area before by agreement with UGL. 79 The Applicant agreed that the Stores Area had been provided to officials of the AMWU for the purpose of holding meetings under s.484 of the FW Act, however this had been done with the prior consent of UGL80 and it was not allocated or agreed as the location for Mr Wilkins to hold meetings with employees on 10 June 201581, as AMWU members or eligible members did not take breaks there82.
[76] Whilst the Applicant accepted that Mr Cummins had held discussions with employees in the Stores Area before rather than in the East End Training Room, the holding of meetings in the Stores Area was always with the agreement of a representative of UGL on each specific occasion 83. The Applicant emphasised that prior to 10 June, Mr Cummins did not always meet in the Stores Area84, or had asked for permission to meet there85would say to the UGL representative that he was going to hold a meeting in the Stores Area86, the UGL representative would indicate there was not any issue with doing that87 and Mr Cummins had not held a meeting in the Stores Area without first discussing it with a UGL representative88.
[77] Mr Cummins said during cross-examination that he had also held meetings in the Stores Area when the delegates planned to meet in the Stores Area because the delegates would know that there might be 80 employees attending the meeting 89. The Applicant submitted that this was given as another circumstance where Mr Cummins might meet in the Stores Area. The Applicant said however that this assertion was not included in the written statement of Mr Cummins. Further there is no evidence of UGL giving permission for delegates to hold a meeting in the Stores Area. The Applicant also says that this assertion was never put to the Applicant’s witnesses. The Applicant submits the assertion is a recent invention that should be rejected.
[78] The Applicant also submitted that there was no “mutual agreement” for Mr Cummins to hold a meeting in the Stores Area whenever he wished 90. The Applicant said even if Mr Cummins “felt” this to be the case, this would have been disavowed by Ms Garland’s direction to him on 10 June 2015.
[79] The Applicant said the reason given for previously holding meetings in the Stores Area rather than the East End Training Room was that the number of employees who turned up on the day to attend the meeting was greater than the room could hold, or was “unavailable” 91.
[80] I am not satisfied any standing agreement existed for the unions to use the Stores Area as a default meeting place in the event that an allocated room was inappropriate. Mr Cummins reveals that on each occasion the Stores Area was used by the CFMEU a representative of UGL had either proposed it, or agreed to it 92. It is worth noting that Mr Cummins gave evidence that at times the delegates might plan to meet in the Stores Area because they might know there would be 80 members attending so they would just go to the Stores Area93.
[81] The evidence discussed in more detail below also establishes that Mr Cummins was directed on 10 and 12 June by Ms Garland to meet in the East End Training Room. Mr Haire agreed that no one had given him permission to have a meeting in the Stores Area 94. The evidence concerning Mr Wilkins was clear that he understood there was no agreement for him to meet in the Stores Area on 10 or 12 June.
Events of 10 and 12 June 2015
[82] On 9 June 2015 each of the three union officials sent emails to the CSNT attaching an entry notice to enter the UGL CCPP on 10 June 2015. Mr Lee sent each official an email in response approving the entry subject to the conditions in the email.
[83] Ms Richards, as the representative of UGL, gave evidence that she was informed of the requests, and that she was responsible for allocating the meetings rooms for the three officials on the two days. 95 It was Ms Richards’ evidence that she allocated the CFMEU the East End Training Room; the AMWU the West End Crib Area; and the CEPU the East End Crib Area.96 No Union was allocated the Stores Area for conducting a meeting.
[84] Mr Cummins had previously held meetings during ROE’s at the East End Training Room. Ms Richards said that at the CFMEU’s request, its meetings had been moved from the crib room to the East End Training Room. 97
[85] The Applicant said that the West End Crib Area was a room in which the majority of employees eligible to be members of the AMWU took their breaks at the relevant time, and Mr Wilkins had previously held meetings there.
[86] The East End Crib Area was a room that members of the CEPU took their breaks and Ms Richards gave evidence she understood this was the CEPU’s preferred location. 98
[87] The three Organisers undertook induction to site on 10 June 2015. There is no dispute that the three Organisers agreed to comply with the conditions of entry at induction. 10 June Mr Cummins and Mr Haire met with employees in the Stores Area 99.
[88] The Applicant asserts that Mr Cummins intended to meet with employees in the Stores Area and advised Mr Lee he intended to do so. 100 The Applicant also says that Mr Wilkins knew that employees, whose interests the AMWU could not represent, would be present.101 Mr Lee, who drove Mr Wilkins to the West End Crib Area, returned Mr Wilkins to the security office, effectively revoking his entry to site.
[89] Mr Cummins and Mr Wilkins attended site on 12 June 2015. Both officials emailed entry notices the previous day and Mr Lee responded to both officials by email advising the entries were approved. Ms Richards again allocated Mr Cummins to the East End Training Room, and Mr Wilkins to the West End Crib Area. The Stores Area was not an allocated location on 12 June 2015.
[90] Induction was undertaken with both officials on 12 June and again both officials agreed to comply with the conditions of entry to the site. That day both officials attended a meeting with employees in the Stores Area. 102
Ms Richards discussion with AMWU delegate Mr Springer on morning of 10 June 2015
[91] Ms Richards gave evidence that sometime before 8.45am on 10 June 2015 she had a discussion with Mr Paul Springer, the AMWU delegate. Ms Richards said she told Mr Springer the location of the union meeting that afternoon and he said “We will be having a combined union meeting in the stores area, everybody will be there.” Ms Richards said she replied “Each union official has been allocated their appropriate areas and that is where they are to hold their meetings, you will not be holding a combined meeting”. Ms Richards’ evidence was that Mr Springer replied “I think you will find that we will”. 103 This evidence is consistent with her oral evidence.104
[92] Ms Richards said she arranged with Mr Springer’s Superintendent to tell him to attend a meeting with her at 10.30am, which was also attended by David Gittus, the Corporate Industrial Relations Manager for UGL. The meeting was also attended by another AMWU delegate. Ms Richards said both Mr Gittus and herself explained to Mr Springer the meeting areas had been allocated and that they were not to hold a combined union meeting. Ms Richards said both she and Mr Gittus advised Mr Springer that the union organisers would be escorted to the allocated crib facilities and if they did not comply they would be in breach of their ROE conditions. Mr Springer said in response “I am aware of the Act and aware of the provisions.”
[93] Ms Richards said Mr Springer advised he would seek further advice. Ms Richards said she and Mr Gittus had a printed copy of the ROE provisions of the FW Act and attempted to show Mr Springer but he did not acknowledge the printed legislation. 105 Mr Springer was not called to give evidence.
[94] The submissions of the 1st, 2nd, 5th and 6th Respondent seek to argue that despite Ms Richards knowing that union members intended to go to the Stores Area that afternoon she still directed Mr Wilkins to the other end of the facility. 106
[95] The evidence however discloses that UGL took proactive steps to make clear it had not agreed to a meeting at the Stores Area and to warn Mr Springer the officials would be in breach of their ROE conditions if they attended a combined meeting at the Stores Area. I deal below with wider submissions to the effect that the conduct of representatives connected to the Applicant’s case was provocative or inflammatory on 10 and 12 June 2015. In this specific instance it seemed it was being argued for the Respondents that UGL, or other representatives of the occupier, should have agreed to the planned joint meeting, and not doing so was evidence of their being uncooperative. I reject this proposition, and this view of itself put for the Respondents tends to raise concern regarding potential future conduct concerning ROE.
Conduct of Cummins
[96] The 1st, 2nd, 5th and 6th Respondents argue that Mr Cummins did not fail to comply with any reasonable request on 10 June 2015 as to an occupational health and safety requirement within the meaning of s.491, or the particular route to reach the agreed location for discussions within the meaning of s.492(b). Further it was said the 2nd and 6th Respondents only sought to hold discussions with members of, and persons eligible to be members of their own unions.
[97] Ms Garland estimated that Mr Cummins had exercised a ROE in the UGL CCPP area of the project 30 times. 107 Mr Cummins said that most weeks he would attend the project more than once.108 Mr Cummins accepted in oral evidence that he was obliged to remain with his escort including that he would not walk away from his escort, and comply with directions from his escort.109
[98] There was no dispute that on 12 June 2015 Mr Cummins agreed to the conditions of entry to the site, including that he not walk away from his escort, and he confirmed he was required to comply with directions given to him by his escort. 110 On 12 June 2015, Ms Garland was assigned to escort Mr Cummins.111 Mr Cummins was aware of this as Ms Garland had collected Mr Cummins from the main security area and escorted him to the UGL CCPP area.112
Why did the CFMEU meetings not occur in the Eastern End Training Room?
10 June 2015
[99] It is clear from the evidence that Ms Garland informed Mr Cummins on 10 June that he had been allocated the East End Training Room for the meeting with eligible employees. 113 The Applicant submits that the East End Training Room was a suitable location for the meeting on 10 June 2015. The room had previously been used by Mr Cummins for the purpose of holding discussions under s.484 of the FW Act.114
[100] Mr Cummins said that when he commenced on the project he conducted meetings with members in the crib sheds and as the workforce expanded he started to conduct meetings in the training room next to the crib sheds. 115 He said the training room would be able to hold around 30-40 people, or around 20% of the CFMEU membership.116
[101] The Applicant submits that there was no previous disagreement about the allocation of the Training Room as the location for meetings Mr Cummins held with employees under s 484 of the FW Act. The Applicant submits that although Mr Cummins told the FWC that he “couldn’t be bothered with the argument”, with respect to the suitability of the Training Room for previous meetings 117, the FWC should reject that claim because it is inconsistent with Mr Cummins’s conduct and attitude generally in this matter.
[102] The Applicant relies on the evidence of Ms Richards concerning the suitability of the Training Room for meetings of members of the CFMEU and also the use of the Training Room for such meetings. 118 It was Ms Richards’s evidence that the Training Room could accommodate up to 50 people, including standing room and that it was air-conditioned. It was also said to be close to the areas where employees who could be members of the CFMEU took their breaks. The Applicant submitted that Mr Cummins’ evidence in relation to the Training Room not being suitable was unconvincing and should not be accepted by the FWC. The Applicant submits that the only real difficulty Mr Cummins had with the Training Room was that it did not suit the planned unlawful joint meeting.
[103] Ms Garland accepted the criticism of the Respondents that there were only 16 chairs in the training room. 119 The 1st and 2nd Respondents also submitted that the room could not accommodate the size of the group and that there were adjoining offices and supervisors present in the room. Mr Cummins gave evidence that between 30 and 80 employees could attend meetings120 and he would not know who was turning up to the meeting until it started.121
[104] The Applicant submitted that Mr Cummins’ evidence on this matter was significant because it was put to Ms Garland that the selection of the location of the meeting should have taken into account the number of members who were going to attend the meeting 122, however the Applicant said that if Mr Cummins did not know in advance the number attending, therefore how could Ms Garland know.
[105] The Applicant submits the East End Training Room could accommodate between 30 123 and 50 persons,124 therefore the East End Training Room could accommodate the number of employees who wished to attend a meeting125.
[106] The Applicant said the East End Training Room was a more suitable location as it contained tables and chairs, and is air-conditioned. 126 The Applicant said that neither of the CFMEU or Mr Cummins demonstrated that the East End Training Room was not an appropriate location for the 10 June 2015 meeting. The Applicant said neither the CFMEU nor Mr Cummins advised the occupier on 10 June 2015 that they disagreed with the location nor, in the absence of agreement about the location of the meeting, did Mr Cummins attempt to hold the meeting in the usual crib facilities.
[107] Mr Cummins’ evidence is that there was no plan to hold a joint meeting of the CFMEU, AMWU and CEPU’s members on 10 June 2015 127. The Applicant submits this is implausible.
[108] Mr Cummins version was that he entered the Training Room and was told by an employee that there were three supervisors in the room, and all of the employees were in the Stores Area. 128 Mr Cummins further claimed that the amount of members he had seen walking to the Stores Area meant they were not going to fit in the Training Room.129 Mr Cummins claimed he then informed Ms Garland that the Training Room was inadequate and he walked to the Stores Area with Ms Garland and Mr Haire.130
[109] Ms Garland rejects Mr Cummins version of this conversation with her. 131 Ms Garland said in cross examination that Mr Cummins did not dispute the suitability of the Training Room, but that he wanted to meet in the Stores Area.132 Mr Cummins accepted the proposition that he “took it upon himself” to walk off to the Stores Area.133
[110] The 1st, 2nd, 5th and 6th Respondent complained that at no time did Ms Garland offer Mr Cummins an alternative room. Mr Cummins stated the he was not surprised that there were members of the AMWU and CEPU present in the Stores Area when he went there. Mr Cummins gave evidence that his lack of surprise was not because he had been expecting to hold a meeting with his members, he said he “didn’t think anything of it” 134.
[111] The Applicant submits that Mr Cummins’ claim is inconsistent with the evidence of Mr Wilkins who says he had discussions with Mr Cummins and Mr Haire about holding a combined meeting. 135
[112] I am not inclined to accept the evidence of Mr Cummins that he made the decision to meet at the Stores Area because of his concerns about the inadequacy of the Training room. The evidence of Mr Wilkins is clear that he discussed the proposal for a joint meeting in the Stores Area with Mr Cummins before 10 June. I prefer Mr Wilkins version. His statement and oral evidence was consistent. This version fits better with other evidence than Mr Cummins’ version. Mr Wilkins gave evidence that the purpose of the combined meeting was to “get a constant message across to all members” and that at a combined meeting, this message is delivered by one person. 136 The Applicant noted in its submissions that Mr Cummins’ representative did not cross examine Mr Wilkins on this point. I agree with the Applicant that Mr Wilkins evidence on this point should be accepted.
[113] The Applicant submits that to accept Mr Cummins’ evidence about not planning a combined meeting, the FWC would need to reject the evidence of Mr Wilkins and would also need to find that the members of the CFMEU, AMWU and CEPU all attended the Stores Area on 10 June by some form of coincidence, which is a conclusion that should not be accepted.
[114] On the basis of the evidence, as I have stated, I am satisfied the combined meeting was organised prior to 10 June and Mr Cummins was aware a combined meeting was to occur.
[115] In further support of the finding above, the uncontested evidence of Ms Richards is that Mr Springer, the AMWU delegate, said at 8.45am that morning that all of the unions were intending to meet at the Stores Area that afternoon. That evidence did not confine Mr Springer’s comments to AMWU members only. The clearly available inference is that union members generally, including the CFMEU members, were aware at least from 8.45am on the morning of 10 June that a combined meeting in the Stores Area was to occur that afternoon. Mr Springer was called to a second meeting at 10.30am by UGL for the purpose of emphasising its position to him that any meeting in the Stores Area would cause the union officials to be in breach of their ROE. It is implausible given all of that, that Mr Cummins did not know of an intended combined meeting in the Stores Area that day and further, that it occurred on the spur of the moment.
[116] Further, I am inclined to the view that if Mr Cummins’ actions were genuinely driven by a concern that the Training Room was an unsuitable location for a CFMEU meeting that day, then he would have in all likelihood given a more fulsome explanation to Ms Garland about what his concerns were regarding the unsuitability of the Training Room. The evidence is he did not explain the particulars of his concerns to Ms Garland, he agreed he “took it upon himself” to walk off to the Stores Area 137. Ms Garland was asked in re-examination about why the crib room was not offered on 10 June, and she responded because the statements made were that the training room was too small and the crib room was smaller138. It was never made clear which specific statements she was referring to, including by who and when they were made. The Respondent suggested that this was a concession that Mr Cummins did in fact raise this issue with Ms Garland at the time. The evidence overall does not support that Mr Cummins was primarily concerned with that issue and on balance I am inclined to the prefer Ms Garland’s evidence to the effect that Mr Cummins did not raise the issue, or was not primarily concerned with the inappropriateness of the Training Room and instead was mainly concerned with wanting to attend a meeting he knew in advance was going ahead in the Stores Area.
12 June 2015
[117] Ms Garland took Mr Cummins to the UGL office, where he was required to sign in before accessing the UGL CCPP area. Ms Garland said that Mr Cummins signed in at the office and immediately walked out of the office, away from Ms Garland, and toward the Stores Area 139.
[118] The Applicant submits that it follows from Mr Cummins’ acknowledgement at signing into site that he knew he was to stay with his escort and to not walk away from his escort 140 and that he knew he was to stay with Ms Garland during the ROE and not walk away from her. The Applicant argues that despite this Mr Cummins deliberately walked away from Ms Garland.
[119] The Applicant said further that it follows from Mr Cummins’ acknowledgement at signing into site that he knew he had to comply with the directions given to him by his escort 141 and that he should comply with any directions given to him by Ms Garland during the ROE. The Applicant argues that despite this Mr Cummins deliberately ignored Ms Garland’s attempts to speak with him142. The Applicant said alternatively Mr Cummins did not hear Ms Garland call out to him, due to the distance he had put between himself and her as he walked briskly away from her.
[120] Ms Garland said that Mr Cummins had not given her an opportunity to inform him that the meeting on 12 June 2015 was to be held in the East End Training Room 143. Ms Richards gave evidence that this was the allocated location for Mr Cummins meeting on 12 June 2015144. Ms Garland gave evidence that Mr Cummins had met with employees in the East End Training Room earlier the same day of 12 June 2015.145
[121] The Applicant said Mr Cummins did not discuss the location of the meeting with any of UGL’s representatives before proceeding to the Stores Area. Further he was not given permission to hold the meeting in the Stores Area on 12 June 2015. The Applicant submitted that Mr Cummins did not follow the process that had been previously followed when Mr Cummins met employees in the Stores Area.
[122] Mr Cummins said that when he arrived at the UGL CCPP area, he was advised by the CFMEU delegate that the meeting would be in the Stores Area 146. This evidence was not in his witness statement, which would have been expected as an explanation for his decision to meet in the Stores Area on 12 June 2015 given the nature of the Applicants allegations concerning his conduct on the orders sought. The CFMEU delegate referred to by Mr Cummins was not called to give evidence.
[123] Mr Cummins agreed that he went with Ms Garland to the UGL office to sign in, and that he walked in, signed in and walked out 147. When it was put to Mr Cummins that no one from UGL or CSNT had told him that his meeting that day was in the Stores Area, his evidence was vague, saying he couldn’t remember.148
[124] When it was put to Mr Cummins that he walked to the Stores Area without Ms Garland he said “...I would suggest Ms Garland would have been following me.” When it was put to Mr Cummins that at one point he was 40 meters away from Ms Garland he said “I wouldn’t know that, mate. I look in front of me when I’m walking”. 149 Mr Cummins said he didn’t hear Ms Garland call out to him.150
[125] Mr Cummins said he had not planned to hold a joint meeting on 12 June 2015. He said he does not know what is said on site between other delegates and other workers but there was no discussion with him to have another joint meeting. 151 This is inconsistent with the evidence of Mr Wilkins. Mr Wilkins said as follows in his witness statement152
“85. Mr Haire, Mr Cummins and myself agreed to hold another combined meeting on 12 June 2015 (though Mr Haire would be unable to attend and the local ETU organiser would attend in his place) of our members.
86. The issues on site faced by our members were combined issues which affected all workers on site at the Project.”
[126] Mr Wilkins confirmed this in his oral evidence. 153
[127] Mr Cummins claimed Ms Garland did not advise him where he should meet on 12 June 2015; 154 however even if that were true, that was not a basis for Mr Cummins to assume he could decide for himself where he would have a meeting. His own evidence was he had always confirmed agreement to meet in the Stores Area previously155.
[128] Mr Cummins said in his evidence that after the meeting, Ms Garland said “I was calling out to you. You’re meant to meet them in the Training Room”. He claimed to have replied with a comment that included “[W]hat is the issue with the store? ……”. Mr Cummins claimed Ms Garland replied “It wasn’t me, but I agree the meeting room is inadequate. I’ll check with UGL to see if you’ve attended the store room before.” 156 Ms Garland rejected this evidence of Mr Cummins, both in her statement in reply157 and in cross examination158 although she accepted she had said that she would check about the claim that meetings had been held in the Stores Area previously. Generally, I prefer Ms Garland’s evidence to Mr Cummins’ evidence where their evidence is in conflict as Mr Cummins’ evidence on other matters has been found to be inaccurate or less clear.
[129] Mr Cummins had met with employees in the East End Training Room prior to 10 and 12 June 2015, and on 12 June 2015 itself. I am satisfied that Mr Cummins did not allege the training room was inadequate before proceeding to the Stores Area on 12 June 2015. On his own evidence he went to the Stores Area because he saw employees walking over to the Stores. I am satisfied on the evidence that contrary to Mr Cummins’ evidence, the decision for a combined union meeting to occur in the Stores Area on 12 June 2015 was made beforehand, as had been the case on 10 June 2015, and that was the reason Mr Cummins went to the Stores Area again in 12 June2015 , and not because of a view that the East End Training Room was inadequate.
Did Mr Cummins walk away from his escort?
10 June 2015
[130] Mr Cummins walked with Ms Garland from the UGL office towards the East End Training Room. 159 Mr Cummins denied that he walked away from Ms Garland, however, admits that he walked down the stairs to the Stores Area and that Ms Garland was behind him when he did so.160 The Applicant submits Mr Cummins walked to the Stores Area despite Ms Garland’s advice that the East End Training Room had been allocated for the meeting with his members. The Applicant contends that Mr Cummins walked to the Stores Area despite Ms Garland repeating her advice to him that members of the CFMEU were to meet in the East End Training Room.161 Mr Cummins’ evidence on whether he was with Ms Garland or walked away from her was vague. He said she might have been a step or two behind him. He said he couldn’t remember if Ms Garland was calling out to him, and he would have to look at his statement.162 He then said if she was calling out to him he didn’t hear her.163 He then said he remembered Ms Garland telling him she wanted to talk to him, saying “Rolly stop” and he stopped and talked to her. He accepted by that point that they were near the Stores Area.164 I am satisfied on the evidence that Mr Cummins walked away from Ms Garland when he walked to the Stores Area instead of meeting in the Training Room.
12 June 2015
[131] In the course of my findings above concerning the reasons I determined the CFMEU meeting on 12 June did not occur in the Eastern End Training Room I considered evidence concerning Mr Cummins conduct that day. I rely on my findings above to also conclude Mr Cummins also walked away from his escort Ms Garland that day.
Did Mr Cummins hold or participate in discussions with employees other than those whose industrial interests his union was entitled to represent?
10 June 2015
[132] Mr Cummins entered the Stores Area and spoke to the people assembled in the Stores Area, which he estimated was a couple of hundred. 165 Mr Cummins confirmed he was aware that there were employees who were members of the AMWU and CEPU present at the Stores Area when he was speaking.166
[133] Mr Wilkins evidence was that he had discussed with Mr Haire and Mr Cummins prior to 10 June about the combined meeting that day. 167 Mr Haire estimated between 150 to 200 employees were in the Stores Area,168 and some of those were eligible to be represented by the CFMEU or AMWU.169
[134] Mr Cummins sought to have discussions with representatives of UGL to resolve issues about rosters and allowances on 10 June 2015. Mr Cummins sought to have these discussions after the meeting had been going for some time, and when there was less than 10 minutes left in the lunch break. 170
[135] Mr Cummins sought these discussions following a motion put by a worker at the meeting. Mr Haire stated that the workers voted on a proposal that was to the effect that unless a commitment was given around meetings and consultation the workers would not return to work after the lunch break. 171 Mr Haire gave evidence that he advised Ms Garland of this.172
[136] Mr Cummins’ recollection of the motion put at the meeting in his oral evidence was vague, 173 even though his written statement dealt with the meeting in detail.174 When Mr Cummins was asked who spoke at the meeting he said “Absolutely everybody” and “it was a pretty loud and rowdy meeting...”. He said he “…walked in and addressed the group…”.175
[137] On the evidence I am satisfied that Mr Cummins was involved in conducting a joint meeting and held and participated in discussions with employees other than those whose industrial interests his union was entitled to represent.
[138] The Respondents have sought to rely on Mr Casey’s evidence, 176 where Mr Casey said he did not have a difficulty with a union official conducting a meeting in a facility or lunch room when others were present. That argument is not to the point. Mr Casey was referring to circumstances where employees happened to be in a location for a different purpose than attending the meeting, such as having lunch. What occurred here was different. Employees who were members of, or eligible to be members of the AMWU and CEPU, and consequently outside the eligibility of the CFMEU, were attending the meeting for the specific purpose of participating in discussions in accordance with s.484 of the FW Act. I am satisfied on the evidence that Mr Cummins held discussions with members of the AMWU and CEPU who were outside the eligibility of the CFMEU.
12 June 2015
[139] The Applicant submitted that again on 12 June 2015 Mr Cummins addressed employees in the Stores Area that were members of the AMWU and CEPU, who he was not entitled to represent 177. The evidence is that for most of the time Mr Cummins was the only union official in attendance.178
[140] Ms Garland’s evidence was that Mr Cummins continued to talk to the employees after 2.30pm, which is the conclusion of the break. 179 Mr Wilkins evidence was Mr Cummins addressed the meeting including AMWU members.180 I am satisfied on the evidence that Mr Cummins again held discussions with employees who were outside the eligibility of the CFMEU, and who he knew to be outside the eligibility of the CFMEU.
Did Mr Cummins encourage and support unlawful industrial action?
10 June 2015
[141] The Applicant argues the evidence shows that prior to the meeting with UGL’s representatives on 10 June 2015, Mr Cummins knew that the employees were proposing to refuse to return to work. The Applicant says there is no evidence of any discouragement on the part of Mr Cummins. The Applicant argues that in meeting with UGL’s representative to seek to obtain responses in less than 7 minutes and conveying the threat that answers were required before the workers would return to work, Mr Cummins encouraged and supported the unlawful industrial action that occurred.
[142] Mr Cummins’ evidence was that following a meeting held at the CSNT offices shortly afterward, he contacted the CFMEU delegate and advised him that the members should return to work. 181 There is insufficient evidence to make a finding that Mr Cummins encouraged and supported unlawful industrial action on 10 June 2015. The evidence tends to indicate the unions officials present in the meeting were responding to directions from their members regarding a view that management had failed to address issues in regard to rosters and Living Away From Home Allowance (LAFHA), and not that the members were being directed by the officials in regard to these matters.
[143] The Applicant referred to the evidence of Ms Richards that Mr Cummins and Mr Haire were present when delegates stated that they would not return to work until the matters were resolved. 182 That is not evidence that Mr Cummins or Mr Haire were encouraging or supporting unlawful industrial action.
12 June 2015
[144] There is no evidence to support a finding that Mr Cummins encouraged and supported unlawful industrial action on 12 June 2015.
Did Mr Cummins fail to comply with a reasonable request as to an occupational health and safety requirement?
10 June 2015
[145] On 10 June 2015 it is clear the Stores Area was not the agreed location for the meeting. Mr Cummins ignored the direction of Ms Garland not to meet in the Stores Area. The failure to comply with a direction from their escort, Ms Garland, was a failure to comply with an occupational health and safety requirement that applied to the Project.
12 June 2015
[146] I am also satisfied on the evidence that the Stores Area was not an agreed location on 12 June 2015, and that Mr Cummins either deliberately ignored a direction from Ms Garland, or could not hear her direction because he had walked away from her. This caused him to be unable to comply with a direction and subsequently meant he did not comply with an occupational health and safety requirement that applied to the Project.
Did Mr Cummins not comply with a reasonable request to take a particular route to reach a room?
10 June 2015
[147] In walking to the Stores Area on 10 June Mr Cummins did not follow a particular route to the location for his meeting that Ms Garland wanted him to follow, as he had been directed not to meet in the Stores Area and he ignored this direction and proceeded to the Stores Area.
12 June 2015
[148] It is apparent from the evidence that Mr Cummins did not follow the route that Ms Garland wanted him to follow on 12 June 2015 because he had walked away from Ms Garland. In walking to the Stores Area Mr Cummins deviated from the route to the location of the meeting in the East End Training Room.
Rules Issue
[149] The Applicant submitted there is evidence that Mr Cummins was including in his estimation of the number of employees who would attend CFMEU meetings, employees the CFMEU did not have constitutional coverage for, such as scaffolders and riggers. 183
[150] This issue appears only to arise because the 1st, 2nd, 5th and 6th Respondents have submitted that the East End Training Room was inadequate on 10 (and 12) June because of the number of employees that it could accommodate, and an apparent subsequent view on the part of the Applicant that if the CFMEU confined its discussions to persons it was entitled to hold discussions with there is no possibility to argue the Eastern End Training Room was inadequate.
[151] The Applicant said that the CFMEU eligibility rules limit eligibility to a limited class of employees on the Project. It was said that people employed on a building or structure ,which is for the purpose of housing mechanical or electrical plant on a civil or mechanical engineering site, are expressly excluded. Further, people employed in certain classifications, including dogman and riggers, who work in the hydrocarbon industries are also expressly excluded. The Applicant submitted that the numbers of employees who could attend CFMEU meetings was less than that claimed by Mr Cummins and/or the CFMEU and accordingly, the rooms provided to Mr Cummins and other organisers of the CFMEU were therefore appropriate locations.
[152] The 1st, 2nd 5th and 6th Respondents have submitted that it is unnecessary for the FWC to deal with this issue as there is no dispute and the unions are currently satisfied with the allocated rooms. Further it was said there was no evidence of the precise number of employees in each classification referenced in the Applicants submissions, or evidence about the work that they do.
[153] Given I have already concluded that Mr Cummins intended to attend the meetings at the Stores Area on both 10 and 12 June 2015 because it had been arranged in advance, and further my finding that the inadequacy of the Training Room was not the real issue, it is unnecessary for me to draw conclusions on the rules issue. In any event, because minimal evidence was provided concerning the numbers of employees engaged in particular callings who would have attended the meeting in the Eastern End Training Room but for the meeting in the Stores Area, it would be difficult to make any specific findings concerning the numbers of employees who were ineligible to be a member of the CFMEU.
Conduct of Mr Wilkins
[154] Mr Wilkins had previously exercised ROE on the Project; Ms Garland estimating this to be approximately 100 times, Mr Wilkins between 80 and 100 times. 184 Mr Wilkins said, with respect to UGL, that as at 10 June 2015 the AMWU had approximately 150 members on the project.185
[155] On 10 June 2015 Mr Wilkins agreed to the conditions of entry to site, including that he would remain with his escort. 186 Mr Lee was his escort that day and Mr Wilkins understood this.187 The Applicant submits therefore it follows that Mr Wilkins acknowledgement that he knew he had to comply with the directions given by his escort188 that he knew he should comply with any directions given by Mr Lee during the ROE.
[156] Mr Wilkins had on occasions in 2014, with the consent of UGL, held discussions with employees in the East End Training Room. However, by October 2014 Mr Wilkins said the venue could not accommodate the amount of members and the venue was changed to the Stores Area. 189 Mr Wilkins held a number of meetings in the Stores Area, including as recently as 6 March 2015.190
[157] The Applicant says again on 12 June 2015 Mr Wilkins agreed to the conditions of entry to site including not walking away from escorts 191 and also confirmed he understood he was required to comply with directions given to him by his escort.192 On 12 June 2015 again Mr Lee was Mr Wilkins assigned escort and escorted Mr Wilkins by car to the West End Crib Area.193
[158] The Applicant said that again it follows from Mr Wilkins’s acknowledgement that he knew he was to stay with his escort and to not walk away from his escort that he knew he should stay with Mr Lee during the ROE and not walk away from him. The Applicant says that despite this, Mr Wilkins deliberately walked away from Mr Lee. 194
Why did the AMWU meetings not occur in the West End Crib Area?
10 June 2015
[159] On 10 June Mr Lee informed Mr Wilkins that he had been allocated the West End Crib Area for the meeting with eligible employees. 195 Mr Lee commenced driving Mr Wilkins to the West End Crib Area.196
[160] The Applicant submits that the West End Crib Area includes several demountable air-conditioned rooms which had tables and chairs. It was said that the West End Crib Area was near where a majority of AMWU members ordinarily take their meals. 197 The Applicant said the breezeways could accommodate up to 60 people.198 Mr Wilkins had previously met with members in the breezeways between the crib rooms.199
[161] Prior to 10 June 2015, on 19 May 2015, Mr Lee directed Mr Wilkins to hold discussions in the West End Crib Area. 200 Mr Wilkins said on 19 May 2015 he conducted a meeting in the West End Crib Area however the location was too small for the number of AMWU members at the site resulting in overcrowding.201 Mr Wilkins said he disagreed with Mr Lee’s claim that the area could accommodate 60 people and that at the meeting on 19 May 2015 members spilled around the corners where they could not see or hear what was going on.202 Mr Wilkins said he verbally raised the inadequacy of the new meeting location with Mr Lee.203 He said he did not recall Mr Lee’s response but no alternative was proposed. Mr Lee said he recalled the meeting being full and standing room only, but he did not agree it was overcrowded. Mr Lee said he did recall Mr Wilkins commenting that the West End Crib Area was too small, and he responded by telling Mr Wilkins that there existed no positive obligation on the contractor to build an area specifically for the meetings, and as such, an area would be provided from what was already available.204 Mr Lee denied that there were members spilled around the corners where they could not see what was going on.205
[162] Mr Wilkins also raised a concern that there was inadequate airflow however as Mr Lee said in his evidence, the breezeway is open at one end and has ceiling fans for air circulation. 206 Mr Lee said in his evidence concerning 10 June that at no time (that day) did Mr Wilkins claim the area was not appropriate, and his only dispute was that he wanted to take part in a joint meeting in the Stores Area.207
[163] The Applicant said that although Mr Wilkins had previously met with employees in the East End Crib Area, this was because at the relevant time the East End Crib Area was the location in which members of the AMWU ordinarily took their breaks, 208 however in May 2015 the crib area for the majority of members and employees eligible to be members of the AMWU moved to the West End Crib facilities.209
[164] The Applicant said Mr Wilkins’ claim that between 130 and 140 members would attend meetings 210 was simply not possible. Mr Wilkins’ evidence was that the AMWU had approximately 150 members on site at the relevant time211, and employees were working to a 4 weeks on 1 week off roster therefore a portion of the workforce represented by the AMWU would not be on site at any one time. Ms Richards gave evidence that between 40 and 70 people would attend meetings held by the AMWU212 and that the West End Crib Area can accommodate up to 80 people.213
[165] The 3rd and 4th Respondents submitted that Mr Lee understood that even though the West End Crib Room had been allocated to Mr Wilkins, if an issue arose a new venue could be allocated. 214 It was also submitted that Mr Lee knew by the time of the meeting that the AMWU members had gone to the Stores Area, however Mr Lee’s evidence was he only knew what Mr Wilkins had told him, and that Mr Wilkins wanted to go to a joint meeting.215
[166] Having conducted inspections of the breezeway between the Crib Rooms at the West End Crib Area, I would accept that a meeting of in the order of 80 or more would be a full meeting. However, this needs to be weighed against the evidence that on 10 June Mr Wilkins did not raise any concern with CSNT or UGL’s representatives about the suitability of the West End Crib Area for the meeting. 216 The Applicant asserts that the reason Mr Wilkins wanted to meet in the Stores Area was not because of any concern about the suitability of the West End Crib Area, but because he had arranged and wished to hold a combined meeting with Mr Cummins and Mr Haire beforehand.
[167] Mr Lee claimed in his evidence that while in the car driving to the West End Crib Area, Mr Wilkins stated that he wished to go to the eastern end of the site, which is the area where the Stores Area was located. 217 In his evidence Mr Wilkins denied saying to Mr Lee that he wanted to go to a joint meeting. The Applicant argues this evidence should be rejected as Mr Wilkins’ own evidence indicates a clear intention on the part of Mr Wilkins to hold a combined meeting with Mr Cummins and Mr Haire.218
[168] Paragraphs 45, 46 and 47 of the statement of Mr Wilkins of 2 October 2015 said as follows:
“45. After lodging my notice of entry, I discussed the intended meeting with Michael Haire, Organiser, Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and Rolly Cummins, Organiser, Construction, Forestry, Mining and Energy Union.
46. It transpired that all three of us were meeting with UGL members on this date. As there were many common issues between our members at this site, we concluded that it might be possible to have a combined meeting.
47. we decided that the most appropriate location to have a combined meeting together would be in the Eastern End Stores Area.”
[169] Mr Wilkins confirmed this evidence in cross examination. 219 Further Mr Wilkins said in his statement that together with Mr Cummins and Mr Haire they determined the most appropriate location to have a combined meeting together would be in the Stores Area.220 This evidence was also confirmed under cross examination.221
[170] On the basis of this evidence it is clear Mr Wilkins had held discussions about holding a combined meeting in the Stores Area on 10 June 2015, and that he was aware members of the CFMEU and CEPU would be present in the Stores Area. The Applicant maintains his intention was to address all the employees who were present in the Stores Area, including employees who were members of other industrial organisations. 222
[171] The Applicant submits that in the circumstances there is no reason Mr Wilkins would not have said to Mr Lee that he wanted to attend a combined union meeting in the Stores Area when he had arranged for the meeting to occur before he attended site. The Applicant also makes the point that Mr Lee’s recollection on this point was unchallenged in cross-examination. The proposition that Mr Wilkins always intended to attend a joint union meeting on 10 June in the Stores Area is also consistent with Ms Richards evidence concerning her two separate conversation with the AMWU delegate Mr Springer on the morning on 10 June.
[172] It was Mr Lee’s evidence that he directed Mr Wilkins that the location allocated to him for the meeting on 10 June was the West End Crib Area 223 and Mr Wilkins evidence was that he wished to go to the eastern end crib facilities.224 The Applicant said such conduct would necessarily have involved Mr Wilkins refusing to comply with a direction from his escort, walking away from his escort, and travelling a route other than that which was designated. Mr Lee claimed that Mr Wilkins told Mr Lee that he intended to walk down to the Eastern End Crib Facilities and hold a joint meeting.225
[173] It was put by the 3rd and 4th Respondents in closing submissions that employees in the adjoining crib rooms to the breezeway would be unable to participate in the meeting or hear what was taking place in the West End breezeway, and that the Applicant was attempting to conflate the meeting area as both the breezeway and the adjoining rooms. It was my understanding that the intention was to allocate the West End Crib Area and a meeting could proceed in the breezeway as the meeting area. I was not satisfied following the inspections that an AMWU meeting would not have been able to proceed at the West End Crib Area on either 10 or 12 June 2015 due to the size of the area. A larger area may have been preferable, but the meeting could have proceeded.
[221] It was said Ms Richards allocated the West End Crib Area to Mr Wilkins despite acknowledging the Stores Area was available, and knowing from the AMWU delegate Mr Springer the AMWU planned to meet in the Stores Area. Ms Richards was also criticised for not allowing the Union delegates to attend a meeting with the officials on 11 June. On 12 June it was said Ms Richards knew the CFMEU would not agree to meet in the Training Room yet allocated the room again.
[222] On the basis of my findings concerning factual disputes as set out above I am not satisfied that the conduct of Ms Garland, Mr Lee or Ms Richards was unreasonable on either 10 or 12 June. I am satisfied that in most of the circumstances complained of they were seeking to have the relevant official comply with reasonable ROE requirements. In relation to the matter of the delegates not being released from their duties during paid time to attend the meeting on 11 June with the officials to discuss the issues concerning rosters, LAFHA or the rescue boat, that is not a matter which can reasonably be argued as a basis to excuse the events of the following day. There were other options available to progress any disagreement about that issue.
[223] A separate issue arose in regard to a telephone conversation between Ms Richards and Mr Cummins on 13 June. The facts concerning that conversation, while disputed are not sufficiently relevant to the resolution of the matter for me to consider further.
CONCLUSIONS
Conclusions on conduct of Mr Cummins
[224] The evidence concerning Mr Cummins’ conduct, including his reluctance to accept that his conduct on 10 and 12 June was inappropriate, 283 raises a concern that Mr Cummins may engage in similar conduct again in future.
[225] Mr Cummins gave evidence that were he faced with similar circumstances again; he would have a discussion with the employer, in this case UGL, to come up with an agreement on “where we’d crib before I was actually there.” 284 However Mr Cummins did not say what he would do if he was unable to reach agreement in the future with the occupier about the location for meetings under s.492 of the FW Act. I am satisfied there is likelihood that Mr Cummins may be willing to engage in similar behaviour in the future.
[226] Mr Cummins knew his conduct on 10 June 2015 was inappropriate, however made no attempt to reach agreement with UGL about where the meeting on 12 June would occur, despite attending an earlier meeting on 12 June 2015 in the East End Training Room.
[227] The CFMEU has given no commitment to the Applicant or the FWC that it would take reasonable steps to ensure that Mr Cummins would not engage in similar conduct in the future.
[228] I have also preferred the evidence of witnesses for the Applicant over that of Mr Cummins on a number of factual disputes. Mr Cummins knew he was required to stay with his escort and not walk away from his escort who was Ms Garland. 285 The repetition of the conduct on 12 June is a significant factor persuading me that that in the case of Mr Cummins there remains a concern about his future conduct.
Conclusions on conduct of Mr Wilkins
[229] The evidence concerning Mr Wilkins’ conduct raises a concern that Mr Wilkins may engage in similar conduct again in future. It was Mr Wilkins’ evidence that if similar circumstances occurred again; he would not behave in the same way. However when asked if he remained of the view that his actions on 12 June were justified he answered as follows:
“I’d like to say that the actions that were taken that day were provoked by UGL and CSNT not solving issues on the job, and they will not solve – would not solve the issues until there was a blue on the job” 286
[230] After Mr Wilkins’ entry to the site was cancelled on 10 June, on the basis that Mr Wilkins intended to go to the eastern end, it would have been expected that Mr Wilkins would have attempted to reach an agreement with UGL for his next entry regarding the issue of the location of the meeting on 12 June. He did not do that. Instead the evidence shows that Mr Wilkins arranged to have the combined meeting on 12 June 2015. His witness statement of 2 October 2015 included the following:
“85. Mr Haire, Mr Cummins and myself agreed to hold another combined meeting on 12 June 2015 (though Mr Haire would be unable to attend and the local ETU organiser would attend in his place) of our members.”
86. The issues on site faced by our members were combined issues which affected all workers on the site at the Project.”
[231] The 3rd and 4th Respondents submit that since 12 June 2015, the West End Crib Area has been updated such that it is adequate in terms of size and airflow for the AMWU to hold discussions and the parties have an agreement on the location of discussions. 287 It is further submitted that in over 6 years as an Organiser, Mr Wilkins has not had his ROE permit suspended, revoked or made subject to conditions.
[236] The Applicant submits Mr Wilkins has shown no remorse about his conduct, nor has the AMWU. The AMWU has given no commitment to either the Applicant or the FWC that permit holders will not engage in similar conduct in the future.
[237] Mr Wilkins during cross examination was initially inconsistent with his written evidence in regard to the matter of whether an arrangement had been discussed with Mr Cummins and Mr Haire on 9 June about conducting a combined meeting on 10 June 288 and also in regard to whether Mr Cummins, Mr Haire and himself having had discussions on 11 June about holding a combined meeting on 12 June.289 Where Mr Wilkins’ evidence was inconsistent with the Applicant’s witnesses, I preferred the Applicant’s witnesses.
[238] The conduct of Mr Wilkins on 12 June despite having his ROE cancelled on 10 June because of his stated intention not comply with his ROE obligations is a significant factor which persuades me that in the case of Mr Wilkins there remains a concern about his future conduct.
Conclusions on conduct of Mr Haire
[239] The Applicant says Mr Haire does not acknowledge that he breached the FW Act, however said in response to the question of whether he believed his interactions were appropriate that day answered: “I would certainly probably do it differently next time around.” 290 The Applicant asserts Mr Haire’s claim that he would do things differently next time lacks sincerity and credibility. The claim must be viewed in the context of Mr Haire acknowledging that there were a number of options available to him when he had a difference of opinion with Ms Garland, such as trying to negotiate a resolution, following the direction and put a dispute in about it later, or by recourse to the FW Act.291 However Mr Haire decided to go to the Stores Area.
[240] The Applicant refers to evidence that the CEPU was aware of the process for permit holders to follow to exercise a ROE 292, and the CEPU not showing any evidence of remorse or contrition, or giving a commitment to the Applicant or the FWC that it would take reasonable steps to ensure that any permit holder does not engage in similar conduct in the future. The Applicant argued it is open for the FWC to conclude that the CEPU does not consider the conduct of Mr Haire on 10 June to be inappropriate, and that the CEPU will not take any steps to ensure Mr Haire or another permit holder will not act in a similar manner during any ROE in the future.
[241] Despite the findings made regarding the conduct of Mr Haire, he was not and is not the local Darwin based CEPU official. The evidence is his presence on the project is less frequent than either Mr Cummins or Mr Wilkins. It is also notable that following the events of 10 June he did not attend site on 12 June, and the CEPU meeting proceeded on 12 June and was conducted by a different official in the meeting place designated by the Applicant. There was no repetition of conduct on the part of Mr Haire as was the case for Mr Cummins and Mr Wilkins. This factor has played a significant part my reaching the conclusion that there is a lower level of concern regarding the future conduct of Mr Haire.
Should orders be issued?
[242] I am conscious that the role of the FWC is not to sanction any of the Respondents for past conduct, but to find a practical resolution for the matters going forward. In the exercise of my discretion I must now determine what is appropriate to resolve this dispute.
[243] The Respondents have sought to confine the issues concerning 10 and 12 June to being about where meetings were to be held. In keeping with the findings above, the issues were broader than that, including not following reasonable directions, not remaining with their escort, not holding meetings in the designated location or a default location, arranging combined union meetings and holding discussions with employees outside the union’s eligibility. It has been argued for the Respondents that if I was to conclude that joint meetings were organised, there is no evidence to support the prospect of future joint meetings given the satisfactory arrangements for separate meetings now. I do not accept that argument because it is evident from the findings above I did not accept that the alleged inadequacy of the meeting rooms were ever the catalyst for the joint meetings on 10 and 12 June in the first place. The joint meetings were organised because of dissatisfaction about specific industrial issues common to the members of the three unions including rosters, LAFHA and a rescue boat. There is good reason to believe such circumstances could arise again during the life of the Project.
[244] I have been satisfied while the dispute about the matters that have been the subject of these proceedings remains unresolved, if industrial issues were to arise again there is a likelihood similar conduct may be engaged in again.
[245] I will deal now with the various orders sought by the Applicant. I have decided not to make an order that the 2nd, 4th or 6th Respondents not enter the Project because such an order is unnecessary to resolve the dispute. The incidents occurred on 2 days spread across a three day period and occurred in the context of specific issues. This is not a case where there has been multiple instances of inappropriate conduct being repeated across an extended period of time, or a case where there has been evidence of inappropriate aggressive behaviour, or a lack of civility of a nature that might give rise to considering the need for an order for exclusion from the site to resolve the dispute.
[246] I also do not intend to make an order that the officials undertake and complete training in their statutory ROE under the FW Act because I am satisfied that the 2nd, 4th and 6th Respondents understand their rights and obligations under the statutory ROE provisions. I am satisfied that an understanding of ROE rights and obligations is not an issue that needs to be resolved by an order.
[247] I am not prepared to make an order that the officials not organise, encourage or incite unlawful industrial action or otherwise cause workers engaged to work on the Project to not work or cease work as I am not satisfied on the evidence that the officials did these things on 10 or 12 June.
[248] I will not make an order that the officials strictly adhere to start and finish times for meetings within mealtimes and other breaks as the evidence of conduct of this nature appears to relate only to the one instance, being the events surrounding the conclusion the joint meeting on 10 June. The evidence concerning the particular circumstances that led to that meeting running over the scheduled break do not warrant such a broad order being made.
[249] I also do not intend to make an order that the officials comply with all site entry conditions, requirements and procedures. Such an order is too broad. The evidence supports the conclusion that the 2nd, 4th and 6th Respondents have complied with site entry conditions, requirements and procedures with the exception of the 2 days in question. Further even on those two days they complied with many site entry conditions, requirements and procedures, for example notice, induction processes and the wearing of PPE. If any orders are to be made they should address the specific findings.
[250] Despite having found I have power to make orders in regard to the registered organisations I have concluded that as the circumstances were confined to the conduct of the particular officials on the limited instances of two days at the site, the particular facts of this case do not warrant orders against other permit holders of the CFMEU, AMWU or CEPU.
[251] The issue that needs to be resolved is the future likelihood of repetition of the conduct that occurred on 10 and 12 June. On the basis of the findings set out above I have given serious consideration to issuing orders sought by the Applicant requiring the 2nd, 4th and 6th Respondents to do the following for a period of time to address the future likelihood of repetition of that conduct;
(a) follow all reasonable directions given by JKC’s representatives and their designated escort;
(b) remain with and not walk away from their designated escort;
(c) not hold meetings or discussions in locations other than those assigned by the occupier for that purpose or that are the default locations under section 492 of the FW Act;
(d) not hold, organise, attend or participate in combined union meetings, joint meetings, or meetings or discussions with any employees other than employees whose industrial interests they are entitled to represent.
[252] It is my understanding that the Project will run at least well into 2017. Since the specific events of June 2015 there has been no other evidence put before me of conduct on the part of the 2nd 4th or 6th Respondent of the nature that has been the subject of the findings in this decision. I am alive to the possibility that these proceedings themselves may have had a restraining influence on the 2nd 4th and 6th Respondents. It is also notable that none of the parties have appeared to have regarded the resolution of the dispute as an urgent matter as is sometimes the case in section 505 matters. As referred to earlier in this decision, when I requested at the conclusion of the hearing in February that the parties confer over a timetable for closing submissions the timetable put to the Commission on a consent basis extended to May. As the length of time since the events of June 2015 has grown without a recurrence of the conduct, the weaker the case has become for orders to be issued to resolve the dispute.
[253] I have ultimately concluded that the proposed orders I have referred to above, even if issued for a limited duration, are not now appropriate for resolving this dispute. Given the period of approximately 13 months since the events of 10 and 12 June 2015, I am satisfied that the findings in this decision are sufficient to resolve the dispute, when taken in combination with the knowledge that the Respondents, on becoming aware of the findings in this decision, should also be well aware that any further findings of such conduct against them would provide the Applicant a very strong basis for the kind of orders sought by the Applicant in this matter.
COMMISSIONER
Appearances:
Mr C J Murdoch of Counsel for the Applicant
Mr C Dowling of Counsel for the First, Second, Fifth and Sixth
Mr G Sivaraman for the Third and Fourth Respondents
Hearing details:
2016
Darwin
2, 3 and 4 February
1 Exhibit 1
2 Exhibit 2
3 Exhibit 8
4 Exhibit 4
5 Exhibit 5
6 Exhibit 10
7 Exhibit 11
8 Exhibit 12
9 Exhibit 9
10 Exhibit 3
11 Exhibit 6
12 Exhibit 13
13 Exhibit 7
14 Exhibit 14
15 Exhibit 1 at PN 2 and 5
16 Exhibit 4 at PN 3
17 Exhibit 1 at PN 7
18 Ibid., PN 31 attachment JC 28
19 Fair Work Act, s.490
20 Ibid., s.491
21 Ibid., s.492
22 Ibid., s.492A
23 Ibid., s.500
24 Print S4571, 31 March 2000
25 Fair Work Act, s.505
26 Ibid., s.510
27 [2014] FWC 5407
28 [2012] FCAFC 85
29 (1987) 18 FCR 51 at 61-62
30 (2012)203 FCR 389
31 [2015] FWCFB 946
32 PN 174, 184 and 187
33 PN 482 -484 and 496-499
34 PN 711, 716, 722.
35 PN 992-993, 996, 1005-1006, 1107
36 PN 1270, 1272 and 1278
37 PN 1435-1436
38 PN1844
39 PN1839
40 PN1984
41 PN2146
42 PN2147
43 PN2477
44 PN1403
45 PN1405
46 Ibid.,
47 PN1412
48 PN1413
49 PN1416
50 PN1943
51 PN1945
52 PN1949
53 PN1950
54 PN1951
55 PM2193
56 PN2194
57 PN2195
58 PN 1438-1442
59 PN 1979-1983
60 PN 1974-1978 and 1985
61 PN 2231-2235
62 Exhibit 1 at PN 11-13 JC – 1
63 Exhibit 2 at PN 8 and Exhibit 8 at PN 8
64 See example Exhibit 8, attachments DL 7 to DL 9
65 PN 1533, 2006-2007, 2289-2291
66 Exhibit 5 at PN 14-16
67 Exhibit 1 at PN 18
68 Ibid., at para [19]-[20],attachments JC 7 to JC-12, and Exhibit 8 at para [26)]
69 PN 1438-1442, 1974-1978, and 2232-2235
70 Exhibit 1 attachment JC 1
71 PN 1438-1442, 1974-1978, and 2232-2235
72 Exhibit 10 at PN 24
73 Exhibit 10 at PN 24
74 PN 842
75 PN 440
76 PN 441
77 PN 654-656
78 PN 1197
79 PN 1014
80 Exhibit 9 at PN 38 and Exhibit 6 at PN 32
81 Exhibit 6 at PN 38
82 PN 2254
83 Exhibit 6 at PN15,and PN 1500
84 PN 1488
85 PN 1490
86 PN 1548
87 PN 1549
88 PN 1550
89 PN 1507
90 Exhibit 6 at PN15 and Exhibit 3 at PN 21 and Exhibit 9 at PN24
91 Exhibit 10 at PN 23 –24 and PN 1491
92 PN 1490-1508
93 PN 1507
94 PN 2052
95 PN 815
96 Exhibit 5 at PN14 and attachment AR 1
97 Exhibit 6 at PN 14
98 Ibid., at PN 8
99 Exhibit 2 at PN 62, Exhibit 11 at PN39-40 and PN 2065
100 Exhibit 8 at PN 65
101 PN 3262
102 Exhibit 2 at PN140, Exhibit 10 at PN94-95, PN 1805, Exhibit 8 at PN85-88, Exhibit 12 at PN114, PN 2452
103 Exhibit 5 at PN34-36
104 PN 861-863
105 Exhibit 5 at PN 42-45
106 PN 877
107 Exhibit 3 at PN19
108 Exhibit 10 at PN15
109 PN 1440 - 1442
110 PN 1442
111 Exhibit 2 at PN131
112 Exhibit 10 at PN29 and, PN1546
113 Ibid, Exhibit 2,at PN26
114 Exhibit 10 at PN21 -22, Exhibit 6 at PN14, PN 1472
115 Ibid., at PN20-21
116 Ibid at PN22
117 PN 1475
118 Exhibit 6 at PN14
119 PN 295
120 PN 1480-1482
121 PN 1485
122 PN 315-323
123 Exhibit 10 at PN22
124 Exhibit 6 at PN14, Exhibit 9 at PN26
125 PN 136, PN 293
126 Exhibit 6 at PN14
127 PN 1563-1564
128 PN 1582
129 PN 1587
130 PN 1596
131 Exhibit 3 at PN26
132 PN 277
133 PN 1588
134 PN 1623-1628
135 Exhibit 12 at PN45, PN 2316-2317
136 PN 2323-2327
137 PN 1588
138 PN 505
139 Exhibit 2 at, PN133, PN 1781-1783
140 PN 1440
141 PN 1442
142 Exhibit 2 at PN138- 139
143 Ibid at PN136
144 Exhibit 5 at PN137 and attachment AR -7
145 Exhibit 2 at PN123
146 PN 1784
147 PN 1782
148 PN 1785
149 PN 1793
150 PN 1800
151 PN 1777
152 Exhibit 12 at PN85- 86
153 PN 2388
154 Exhibit 10 at PN92
155 PN 1491
156 Exhibit 10 at PN103-106
157 Exhibit 4 at PN39
158 PN 455
159 Exhibit 2 at PN25
160 PN 1597
161 Exhibit 2 at PN44
162 PN 1599
163 PN 1600
164 PN 1606
165 PN 1612
166 PN 1616 to 1618
167 Exhibit 13 at PN45, PN 2316-2317
168 PN 2062
169 PN 2068-2073
170 Exhibit 10 at PN57-58
171 PN 2106-2110
172 PN 2113-2120
173 PN 1683-1690
174 Exhibit 10 at PN50-56
175 PN 1649
176 PN 210-211
177 PN 1802-1805, PN 2457
178 PN 1815-1819
179 Exhibit 2 at PN157-161
180 Exhibit 12 at PN113-115
181 PN 1752-1756
182 Exhibit 5 at PN 71.
183 Exhibit 10 at PN 22 and Exhibit 9 at PN 21 and 22.
184 Exhibit 12 at PN 14, Exhibit 3 PN2
185 Ibid., at PN 11
186 Exhibit 1, annexure JC and Exhibit 12 at PN 15, PN2328
187 Exhibit 2, PN 52
188 PN 2233
189 Exhibit 12, PN 19-25
190 Exhibit 12, PN28, PN1010-1016
191 Exhibit 1, JC - 10
192 PN 2233
193 Exhibit 8 at PN69
194 PN 2409
195 Exhibit 8 at PN 23, PN 2350-2351
196 Ibid., at PN 30
197 Exhibit 6 at PN 39
198 Exhibit 8 at PN 31 and Exhibit 9 at PN 47 and Exhibit 6 at PN35-37
199 PN 2268
200 PN 1284-1287
201 Exhibit 12 at PN 31
202 Ibid., at PN 33)
203 Ibid., PN 35
204 Exhibit 9, PN43, 45
205 Ibid.,, PN44
206 Ibid., PN 45
207 Exhibit 8, PN 46
208 Statement of Lee dated 22 Oct at PN 38
209 Statement of Richards dated 24 Oct at PN 33
210 PN 2262
211 PN 2282
212 Statement of Richards dated 24 Oct at PN 36
213 Ibid.,
214 PN 1197-1198
215 PN 1315-1317
216 PN 2381, Exhibit 8 at PN 46 and Exhibit 9 at PN 50
217 Exhibit 8 at PN 35 and 36
218 Exhibit 12 at PN 45 and 46
219 PN 2314-2317
220 Statement of Wilkins dated 2 Oct at PN 47
221 PN 2323
222 PN 2325-2327
223 Exhibit 8 at PN 37, PN 2350
224 PN 2356
225 Exhibit 8 at PN 36
226 Exhibit 5 at PN 135, AR – 7
227 PN 2399
228 Exhibit 8 at PN 72 to 76 and Exhibit 5 at PN 143
229 Exhibit 12 at PN 97-98
230 PN 2406
231 Statement of Wilkins dated 2 Oct at PN 102
232 PN 1245-1246
233 PN 2410
234 PN 2411-2412 and Exhibit 12 at PN 99-100
235 Exhibit 12 at PN 101
236 Exhibit 8 at PN 77, Exhibit 5 at PN 152
237 Exhibit 12 at PN 105
238 Exhibit 8 at PN 78, Exhibit 5 at PN 154
239 Exhibit 5 at PN 154 and Exhibit 8 at PN 80
240 Exhibit 12 at PN 107-109
241 PN 2445
242 PN 2416 - 2421
243 PN 2454 – 2457
244 Exhibit 8 at PN 80, Exhibit 5 at PN155
245 PN 2441-2446
246 Exhibit 11 at PN 10
247 Exhibit 3 at PN 12
248 PN 1978
249 Exhibit 2 at PN 16-18
250 PN 2024
251 PN 1977
252 Exhibit 11 at PN 32
253 .Exhibit 2 at PN 28
254 Exhibit 6 at PN 8
255 PN 1990-1994
256 Exhibit 2 at PN 16-18, PN 2024
257 PN 1977
258 PN 1994-1995
259 PN 2010-2012
260 PN 2024-2028
261 PN 2079
262 PN 2047
263 PN 2048-2049
264 PN 2052
265 PN 2053
266 PN 2029-2030
267 PN 2032
268 PN 2033
269 PN 2035
270 PN 2040-2046
271 PN 1996
272 Exhibit 2 at PN 28
273 PN 2074
274 PN 1650 – 1652
275 PN 1653
276 Statement of Wilkins, Exhibit 13 at PN 45, PN 2316-2317)
277 Exhibit 11 at PN 42-46
278 Ibid., at PN47
279 Ibid., at PN48-49
280 PN 2123
281 Exhibit 11 at PN 47
282 Exhibit 5 at PN 62-68
283 PN 1843 – 1847.
284 PN 1844.
285 PN 1440.
286 PN 2476.
287 Exhibit 13 at PN6-7
288 PN 2298-2317
289 PN 2386-2391
290 PN 2146
291 PN 1980-1983
292 Exhibit 1 and attachment JC-5
Printed by authority of the Commonwealth Government Printer
<Price code G, PR576472>
Key Legal Topics
Areas of Law
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Employment & Labour Law
Legal Concepts
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Jurisdiction
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Unconscionable Conduct
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Conduct of Union Officials
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