Patrick Stevedores Holdings Pty Limited v Construction, Forestry, Maritime, Mining and Energy Union
[2019] FCA 451
•2 April 2019
FEDERAL COURT OF AUSTRALIA
Patrick Stevedores Holdings Pty Limited v Construction, Forestry, Maritime, Mining and Energy Union [2019] FCA 451
File numbers: NSD 596 of 2017
NSD 1594 of 2017Judge: LEE J Date of judgment: 2 April 2019 Catchwords: EVIDENCE – state of satisfaction required by s 140 of Evidence Act 1995 (Cth) – application of principles to civil penalty proceedings – probabilities derived from contemporaneous documents – significant amount of evidence not challenged – forensic decision not to adduce evidence in the respondents’ case – Jones v Dunkel inference – failure to call witness cannot make up deficiency of evidence – where evidence is not contradicted any inference favourable to that party might be more confidently drawn where a person capable of putting the true complexion on the facts has not been called – no explanation provided regarding the failure to call any witnesses in the respondents’ case
INDUSTRIAL LAW – contraventions of ss 417, 421, 340 of the Fair Work Act 2009 (Cth) – where Union organised unprotected industrial action – interpretation of enterprise agreement – having regard to industrial purpose of agreement – where Union alleged employees were directed to work differently – relevance of dispute resolution procedure – superficial change to aspects of the work insufficient – whether suspected breach of enterprise agreement sufficient to engage protection from industrial action – no reasonable basis for belief of breach – contravention of 340 – whether industrial action constituted adverse action – the right to have employees perform work as required by the employer is a benefit under a workplace instrument – necessity of proving intent – no evidence adduced to discharge onus – sufficient if one reason of many is unlawful – belief that conduct was lawful does not make it so – alleged contravention of s 343 – particularly serious form of industrial misconduct – allegation made without detailed argument as to why such a contravention should be found – Court should receive further assistance on this issue
Legislation: Evidence Act 1995 (Cth) s 53, 136, 140
Fair Work (Registered Organisations) Act 2009 (Cth) s 79
Fair Work Act 2009 (Cth) ss 19, 340, 341, 343, 361, 363, 417, 421, 550, 562, 793
Federal Court of Australia Act 1976 (Cth) ss 37P(2), 53A
Work Health and Safety Act 2011 (NSW)
Cases cited: Adams v Director of the Fair Work Building Industry Inspectorate [2017] FCAFC 228; (2017) 258 FCR 257
Adler vAustralian Securities and Investments Commission [2003] NSWCA 131; (2003) 46 ACSR 504
Amcor Limited v Construction, Forestry, Mining and Energy Union [2005] HCA 10; (2005) 222 CLR 241
Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2017] FCAFC 53; (2017) 249 FCR 458
Australian Building and Construction Commissioner v Hall [2018] FCAFC 83; (2018) 277 IR 75
Australian Mines and Metals Association Inc v Construction, Forestry, Maritime, Mining and Energy Union [2018] FCAFC 223
Australian Securities and Investments Commission v Fortescue Metals Group Ltd (No 5) [2009] FCA 1586; (2009) 264 ALR 201
Australian Securities and Investments Commission v Geary [2018] VSCA 103; 126 ACSR 310
Avenia v Railway & Transport Health Fund Ltd [2017] FCA 859; (2016) 272 IR 151
Briginshaw v Briginshaw (1938) 60 CLR 336
Chong & Neale v CC Containers Pty Ltd [2015] VSCA 137; (2015) 49 VR 402
Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2015] FCAFC 25; (2015) 230 FCR 298
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing & Allied Services Union of Australia v Australian Competition and Consumer Commission [2007] FCAFC 132; (2007) 162 FCR 466
Director of the Fair Work Building Industry Inspectorate v Robinson [2016] FCA 525; (2016) 241 FCR 338
Energy Australia Yallourn Pty Ltd v Automotive, Food, Metal, Engineering, Printing and Kindred Industries Union [2018] FCAFC 146; (2018) 281 IR 319
Esso Australia Pty Ltd v Australian Workers’ Union [2017] HCA 54; (2017) 92 ALJR 106
Fair Work Ombudsman v Devine Marine Group Pty Ltd [2014] FCA 1365
Fair Work Ombudsman v Grouped Property Services Pty Ltd [2016] FCA 1034; (2016) 152 ALD 209
Fair Work Ombudsman v Quest South Perth Holdings Pty Ltd [2015] FCAFC 37, (2015) 228 FCR 346
Gestmin SGPS SA v Credit Suisse (UK) Limited [2013] EWHC 3560 (Comm)
Gill v Donald Humberstone & Co Ltd [1963] l WLR 929
Giorgianni v The Queen (1985) 156 CLR 473
Jones v Dunkel (1959) 101 CLR 298
Kucks v CSR Limited (1996) 66 IR 182
Mealey v Power [2015] NSWSC 1678
Mount Bruce Mining Pty Limited v Wright Prospecting Pty Limited [215] HCA 37; (2015) 256 CLR 104
Seymour v Saint-Gobain Abrasives Pty Ltd [2006] FCA 1452; (2006) 161 IR 9
Whitlam vAustralian Securities and Investments Commission [2003] NSWCA 183; (2003) 57 NSWLR 559
Date of hearing: 27, 28, 29, 30 August, 3 and 6 September 2018 Date of last submissions: 22 October 2018 Registry: New South Wales Division: Fair Work Division National Practice Area: Employment & Industrial Relations Category: Catchwords Number of paragraphs: 238 Counsel for the Applicant in NSD596/2017: Mr J Fernon SC Counsel for the Applicant in NSD1594/2017: Mr J Darams with Mr B Rauf Solicitor for the Applicants: Seyfarth Shaw Australia Counsel for the Respondents: Mr R Reitano with Ms L Dous Solicitor for the Respondents: Slater & Gordon ORDERS
NSD 596 of 2017 BETWEEN: PATRICK STEVEDORES HOLDINGS PTY LIMITED ABN 63 060 462 919
Applicant
AND: CONSTRUCTION, FORESTRY, MARITIME, MINING AND ENERGY UNION
First Respondent
PAUL MCALEER
Second Respondent
PAUL KEATING
Third Respondent
JUDGE:
LEE J
DATE OF ORDER:
2 APRIL 2019
THE COURT ORDERS THAT:
1.The parties bring in short minutes of order to reflect the reasons for judgment at a case management hearing to be listed at 9.30am on 16 April 2019.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
ORDERS
NSD 1594 of 2017 BETWEEN: QUBE LOGISTICS (NSW) PTY LTD ACN 123 022 588
First Applicant
QUBE LOGISTICS (SB) PTY LTD ACN 003 307 310
Second Applicant
QUBE LOGISTICS (RAIL) PTY LTD ACN 082 313 415
Third Applicant
AND: CONSTRUCTION, FORESTRY, MARITIME, MINING AND ENERGY UNION
First Respondent
PAUL MCALEER
Second Respondent
PAUL KEATING
Third Respondent
JUDGE:
LEE J
DATE OF ORDER:
2 APRIL 2019
THE COURT ORDERS THAT:
1.The parties bring in short minutes of order to reflect the reasons for judgment at a case management hearing to be listed at 9.30am on 16 April 2019.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
LEE J:
A INTRODUCTION
[1]
B OBSERVATIONS ON THE EVIDENCE
[10]
B.1 The Evidence Adduced
[10]
B.2 Fact Finding and the State of Satisfaction Required
[14]
B.3 Jones v Dunkel and Civil Penalties
[19]
C THE RELEVANT EVENTS: FINDINGS
[30]
C.1 The Terminal and the Sublease Area
[30]
C.2 The Enterprise Agreement and Problems Emerge
[34]
C.3 The Events of 20 April 2017
[56]
C.4 The General Stoppage of Work
[62]
C.5 The Ban Continues
[72]
C.6 Work Resumes
[81]
D THE CASE OF PATRICKS AND QUBE
[83]
D.1 A Summary of the Case of the applicants
[83]
D.2 The Differences between the cases of Patricks and Qube
[87]
D.3 Principles relating to “organising” and “involvement”
[91]
I Organising
[92]
II Involvement in contraventions
[96]
D.3 Attribution of conduct to the Union
[101]
E AN OVERVIEW OF THE RESPONDENTS’ CONTENTIONS
[105]
F THE ORGANISATION OF THE BAN
[111]
G CONSIDERATION AND FINDINGS AS TO CONTRAVENING CONDUCT
[119]
G.1 General Stoppage Contention
[119]
G.2 No Industrial Action Contention
[128]
I Introduction
[128]
II The Parties’ Submissions on Clause 1.3 of the Enterprise Agreement
[132]
III The Proper Construction of Clause 1.3
[138]
IV Work Change Dispute
[149]
Union Submissions
[153]
Submissions of Patricks and Qube
[156]
Conclusion on Work Change Dispute
[160]
V Suspected Breach Dispute
[165]
Introduction
[165]
Union Submissions
[168]
Submissions of Patricks and Qube
[175]
Conclusion on Suspected Breach Dispute
[181]
VI Conclusion on No Industrial Action Contention
[183]
G.3 A Summary of Contraventions of s 417(1) and s 421(1)
[186]
I The s 417 Contraventions
[186]
II Breach of the FWC Order – the s 421 Case
[187]
H ADDITIONAL PATRICKS ALLEGATIONS
[191]
H.1 Alleged contraventions of s 340(1)
[191]
H.2 Alleged contraventions of s 343(1)
[203]
I ADDITIONAL QUBE ALLEGATIONS
[215]
J CONCLUSION AND ORDERS
[234]
A INTRODUCTION
There are two proceedings before the Court.
But for the reorganisation of the Maritime Union of Australia (MUA) and the statutory substitution of the Construction, Forestry, Maritime, Mining and Energy Union as the first respondent in both proceedings, the style of cause of this matter would have stirred the memory of industrial lawyers of famed battles past. Unlike its famous 1998 predecessor, however, this dispute is of a much more limited and narrow focus.
The first proceeding (Patrick Proceeding) was commenced by Patrick Stevedores Holdings Pty Limited (Patrick Holdings) and a related company, Patrick Stevedores Operations Pty Ltd (Patrick Operations), being the main trading entity of the corporate group that conducts a business of operating container stevedoring terminals, including at Port Botany, in New South Wales (Terminal). Patrick Holdings employs those carrying out stevedoring operations at the Terminal (employees) including employees who were rostered to work in the rail yard within the Terminal (rail employees), and Patrick Operations contracts with external service providers at the Terminal and with rail and stevedoring customers. Unless it is necessary to distinguish between entities in the group, I will refer to these entities collectively as Patricks.
The second proceeding (Qube Proceeding) was commenced by Qube Logistics (NSW) Pty Ltd, Qube Logistics (SB) Pty Ltd and Qube Logistics (Rail) Pty Ltd (collectively, Qube). The companies are involved in the business of providing transport logistics services to importers and exporters in relation to containerised and other freight. The transport logistics services include the transportation of containerised and other freight and empty containers by road and rail to locations within Australia as required by the customers of Qube.
As I have already noted, the Construction, Forestry, Maritime, Mining and Energy Union is the first respondent in both proceedings. By an amalgamation in March 2018, the MUA was deregistered and the Construction, Forestry, Maritime, Mining and Energy Union was formed as the “amalgamated organisation” of which members of the MUA became members (for a discussion of the details of the process of amalgamation see Australian Mines and Metals Association Inc v Construction, Forestry, Maritime, Mining and Energy Union [2018] FCAFC 223). Relevantly, for present purposes, s 79(a) of the Fair Work (Registered Organisations) Act 2009 (Cth) operates so as to substitute the amalgamated organisation as a respondent in both proceedings: see s 79(b). For the sake of convenience, unless the context requires otherwise, I will refer to the first respondent to both proceedings as the Union.
At all relevant times, the second respondent (Mr Paul McAleer), was the Secretary and the third respondent (Mr Paul Keating), was the Deputy Secretary, of “the Sydney Branch of the Maritime Union of Australia”. Approximately 90% of the employees are members of the Union.
In the Patrick Proceeding, it is alleged that the Union and Mr McAleer organised and were involved in industrial action that took place at the Terminal during various shifts between 20 April and 1 May 2017. As against Mr Keating, it is said that he organised and was involved in industrial action during the day shift on 1 May 2017. During the period between 20 April and 1 May 2017, it is alleged, a ban, limitation and restriction was imposed on the performance of work by the rail employees; additionally, it is said, for three consecutive shifts beginning with the evening shift of 20 April 2017, there was a failure and refusal of almost all employees at the Terminal to perform any work. For reasons expanded upon below, it is contended that the Union and Mr McAleer each contravened ss 417(1), 421(1), 340(1) and 343(1) of the Fair Work Act 2009 (Cth) (FW Act). The same allegations are made against Mr Keating, but limited to the day shift on 1 May 2017.
Similarly, in the Qube Proceeding, it is alleged the same employees engaged in industrial action within the meaning of s 19(1) of the FW Act on a number of occasions during the period commencing with the 20 April 2017 day shift, and ending with the night shift, on 8 May 2017 and that the Union and Mr McAleer organised the industrial action or were involved in the action within the meaning of s 550 of the FW Act. The same allegations are made against Mr Keating limited to the day shift on 1 May 2017, as in the Patricks Proceeding.
A bewildering and complex range of relief is sought, but it is unnecessary to deal with it all in this judgment. Following complaints made about the tardy service of material going to issues of loss said to have been occasioned by the alleged contravening conduct, on 20 July 2018, I made orders pursuant to s 37P(2) of the Federal Court of Australia Act 1976 (Cth), which, in effect, provided for the deferral of all issues of pecuniary penalty, injunctive relief and compensation. Accordingly, the initial hearing was directed to the issue of whether the applicants had established that the respondents engaged in the contraventions of the FW Act alleged. I will address the question as to whether such contraventions have been established under the following headings:
·Section B Observations on the Evidence
·Section C The Relevant Events: Findings
·Section D The Case of Patricks and Qube
·Section E An Overview of the Contentions of the Respondents
·Section F The Organisation of the Ban
·Section G Consideration and Findings as to Contravening Conduct
·Section H Additional Patricks’ Allegations
·Section I Additional Qube Allegations
·Section J Conclusion and Orders
B OBSERVATIONS ON THE EVIDENCE
B.1 The Evidence Adduced
Evidence in one proceeding was evidence in the other. Apart from a Statement of Agreed Facts (which became Exhibit J), some admissions made by the respondents (Exhibit K and L), a bundle of contemporaneous business records were received into evidence (Exhibit N). As will become evident, these contemporaneous records and the inferences to be drawn from them assume some importance in determining the relevant facts, many of which are not in dispute. This is unsurprising, as it is the review of such contemporaneous emails and other documents as may exist, and the probabilities that can be derived from those materials, that provide the best foundation for fact-finding: Mealey v Power [2015] NSWSC 1678 at [4] (Pembroke J); see also Gestmin SGPS SA v Credit Suisse (UK) Limited [2013] EWHC 3560 (Comm) at [22] (Leggatt J).
Additionally, a number of witnesses were called in the cases of the applicants. Each gave brief oral evidence, witness statements were tendered and each were cross-examined (although a significant portion of the relevant events and chronology was not the subject of challenge). The witnesses called were:
·Mr Jarrod Graham, who at relevant times was the Automation and Landside Manager for Patricks, and whose three statements went into evidence as Exhibits A, B and QA;
·Mr Bruce Guy, who is the Terminal Manager for Patricks, and whose three statements went into evidence as Exhibits C, D and Q2;
·Mr Luke Frawley, who is the National HSE Manager for Patricks, and whose two statements went into evidence as Exhibits E and F;
·Mr Daniel Laroche, who at relevant times was the Logistics Manager for Patricks, and whose statement went into evidence as Exhibit G;
·Mr Angus May, who is the Operations Manager for Patricks, and whose statement went into evidence as Exhibit H; and
·Mr Daniel Coulton, who is the General Manager, Industrial Relations for Qube, and whose two statements went into evidence as Exhibits Q3 and Q4.
Additionally, three affidavits were read by the applicants (T390-391) without objection and without the deponents being required for cross-examination: Ms Maria Zoras-Christo, Mr James Denham and Mr David Fox. Further, on 3 September 2018, a view of the Terminal was conducted pursuant to s 53 of the Evidence Act 1995 (Cth) (EA).
At a time immediately following the closure of the cases of Patricks and Qube (T392), I adjourned briefly to allow counsel for the respondents, Mr Reitano, to consider the course he wished to take in relation to the further conduct of the proceedings. Upon resumption, Mr Reitano informed the Court that he did not seek any adjournment and indicated that he intended to adduce no evidence in the respondents’ case. As I will later explain, a further opportunity was provided to the respondents to adjourn and adduce evidence when s 136 EA limitations were formalised in relation to an important aspect of the documentary case. Again, no adjournment was sought, nor were witnesses called. Accordingly, neither Mr McAleer nor Mr Keating gave their account of what occurred; nor did any of the employees. In the light of the forensic decision to call no witnesses, before coming to my factual findings based on the evidence identified above (and the inferences to be drawn from that evidence), it is useful to pause to make some remarks about the principled approach to fact-finding in circumstances such as the present.
B.2 Fact Finding and the State of Satisfaction Required
It is trite that both Patricks and Qube are required to prove their case on this liability hearing to the civil standard having regard to the degree of satisfaction required by s 140 of the EA. This section requires the court, in a civil proceeding, to find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities. In deciding, in a civil case, whether it is satisfied that the case has been proved, the court is to take into account: (a) the nature of the cause of action or defence; (b) the nature of the subject-matter of the proceeding; and (c) the gravity of the matters alleged. Although the standard of proof remains the balance of probabilities, the degree of satisfaction varies according to the seriousness of the allegations made and the gravity of the consequences (if the allegations are found to be correct): see EA s 140.
Importantly, the factual allegations made by both Patricks and Qube are not only foundations for the nature of the relief dealt with at this liability hearing (that is, declarations of contraventions of the FW Act), but are also the foundations for the deferred relief, that is, the imposition of pecuniary penalties.
It is well-established that s 140 reflects the common law as explained seminally by Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336. As the Full Court noted in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing & Allied Services Union of Australia v Australian Competition and Consumer Commission [2007] FCAFC 132; (2007) 162 FCR 466 at 480 [30]-[32] (Weinberg, Bennett and Rares JJ):
The mandatory considerations which s 140(2) specifies reflect a legislative intention that a court must be mindful of the forensic context in forming an opinion as to its satisfaction about matters in evidence. Ordinarily, the more serious the consequences of what is contested in the litigation, the more a court will have regard to the strength and weakness of evidence before it in coming to a conclusion.
Even though he spoke of the common law position, Dixon J’s classic discussion in Briginshaw…at 361-363 of how the civil standard of proof operates appositely expresses the considerations which s 140(2) of the [EA] now requires a court to take into account. Dixon J emphasised that when the law requires proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. He pointed out that a mere mechanical comparison of probabilities independent of any belief in its reality, cannot justify the finding of a fact. But he recognised that (Briginshaw 60 CLR at 361-262):
‘No doubt an opinion that a state of facts exists may be held according to indefinite gradations of certainty; and this has led to attempts to define exactly the certainty required by the law for various purposes. Fortunately, however, at common law no third standard of persuasion was definitely developed. Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences...
Dixon J also pointed out that the standard of persuasion, whether one is applying the relevant standard of proof on the balance of probabilities or beyond reasonable doubt, is always whether the affirmative of the allegation has been made out to the reasonable satisfaction of the tribunal. He said that the nature of the issue necessarily affected the process by which reasonable satisfaction was attained. And, so, he concluded that in a civil proceeding, when a question arose whether a crime had been committed, the standard of persuasion was the same as upon other civil issues. But he added, weight must be given to the presumption of innocence and exactness of proof must be expected (Briginshaw 60 CLR at 362-363).
It is also clear that so-called “Briginshaw principles” apply to civil penalty proceedings (which is a particular example of the application of s 140(1) of the EA): see Adler vAustralian Securities and Investments Commission [2003] NSWCA 131; (2003) 46 ACSR 504 at 533-534 [142]–[148] (Giles JA); Whitlam vAustralian Securities and Investments Commission [2003] NSWCA 183; (2003) 57 NSWLR 559 at 592 [117]–[119] (Hodgson, Ipp and Tobias JJA).
It follows that for the applicants to succeed I am required to reach a state of satisfaction or an actual persuasion that Patricks and Qube have proved their allegations of contravention, while taking into account the seriousness of the allegations and the gravity of the consequences that could follow if the allegations were to be accepted.
B.3Jones v Dunkel and Civil Penalties
It is next appropriate to turn to the decision not to adduce evidence of Mr McAleer or Mr Keating (or evidence of any of the employees). How is this absence of evidence to be used, if at all, in determining whether I have reached the required standard of satisfaction or actual persuasion?
Both Patricks and Qube place reliance on the Court being in a position to infer that the evidence of Mr McAleer or Mr Keating (or those of the employees who had dealings with them) would not assist the respondents’ case: relying generally on Jones v Dunkel (1959) 101 CLR 298. The relevant authorities were not, however, examined in any detail. Given the importance of ensuring that any inferential reasoning occurs in accordance with authority, it is necessary to examine the principled approach to drawing any inferences and the scope of any such inferences.
The availability of what might be loosely called a Jones v Dunkel inference in the context of a civil penalty proceeding has been the subject of some discussion. In Adams v Director of the Fair Work Building Industry Inspectorate [2017] FCAFC 228; (2017) 258 FCR 257, the Full Court (North, Dowsett and Rares JJ) observed at 302 [147]:
The appellants submit, without reference to any supporting authority that the rule in Jones v Dunkel ought not apply in circumstances in which penalty privilege has been claimed. There are authorities to the contrary. See Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Competition and Consumer Commission [2007] FCAFC 132; (2007) 162 FCR 466 at [76] per Weinberg, Bennett and Rares JJ, see too at [28]; Adler v Australian Securities and Investments Commission [2003] NSWCA 131; (2003) 179 FLR 1 at [659]-[661] per Giles JA, Mason P and Beazley JA concurring. See also Australian Securities and Investments Commission v Fortescue Metals Group Ltd (No 5) [2009] FCA 1586; (2009) 264 ALR 201 at [85]-[100] per Gilmour J and the considered, although tentative view of the Victorian Court of Appeal in Chong v CC Containers Pty Ltd [2015] VSCA 137 at [213]-[229]. We proceed upon the basis that the rule in Jones v Dunkel may be applied in pecuniary penalty proceedings...
The “considered” view of the Victorian Court of Appeal in Chong & Neale v CC Containers Pty Ltd [2015] VSCA 137; (2015) 49 VR 402 (Redlich, Santamaria and Kyrou JJA) referred to by the Full Court, merits close examination. Unlike the present case, in Chong, Mr Neale (the party who did not give evidence) had expressly “claim[ed] and reserve[d] his right to claim penalty privilege and self-incrimination privilege”: see Chong at 465 [213]. In the present case, no privilege was expressly claimed or articulated as the reason why Mr McAleer or Mr Keating did not give evidence (although for reasons I will shortly explain, this is not really to the point).
In any event, in Chong, the Court of Appeal noted the following at 464 [212]:
In Dilosa v Latec Finance Pty Ltd [No 2] [[1966] 1 NSWR 259, 277], Street J recognised that where the absent witness is a party then considerable importance may well attach to the inference that nothing which the party could say would assist his or her case. As Gleeson CJ said in [Azzopardi v The Queen (2001) 205 CLR 50, 64–5 [34]] the judgments in Weissensteiner recognise that the inference that may be drawn from the silence of a party to civil litigation may be significant [at 61 [18]]. Santow J drew such an inference in ASIC v Adler [[2002] NSWSC 171; (2002) 168 FLR 253] because the parties who were available and not called had a personal involvement in the transactions in question [at 361 [448]]. Where a party elects not to give evidence ‘the court is entitled to be bold’ [SS Pharmaceutical Co Ltd v Qantas Airways Ltd [1991] 1 Lloyd’s Rep 288, 293 (Gleeson CJ and Handley JA), citing Insurance Commissioner v Joyce [1948] HCA 17; (1948) 77 CLR 39, 49 (Rich J)]. As Heydon, Crennan and Bell JJ stated in Kuhl v Zurich Financial Services Australia Ltd [[2011] HCA 11; (2011) 243 CLR 361] the rule has a particular application where it is the party which is the uncalled witness and may permit the court to draw, with greater confidence, any inference unfavourable to the party that failed to call the witness, if that uncalled witness appears to be in a position to cast light on whether the inference should be drawn [ibid 384–5, citing Dilosa v Latec Finance Pty Ltd [No 1] [1966] 1 NSWR 255, 276–7; ASIC v Fortescue Metals Group Ltd [No 5] [2009] FCA 1586; (2009) 264 ALR 201, 225. See also Schellenberg v Tunnel Holdings Pty Ltd [2000] HCA 18; (2000) 200 CLR 121, 142–3 [51]; Commercial Union Assurance Co of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389 (Handley JA); Oran Park Motor Sport Pty Ltd v Fleissig [2002] NSWCA 371 (Hodgson JA, with whom Beazley JA and Einstein J agreed); State Bank of NSW v Brown (as liq of Parkston Ltd (in liq)) [2001] NSWCA 223; (2001) 38 ACSR 715, 718 [17]–[18] (Spigelman CJ); Manly Council v Byrne [2004] NSWCA 123, [50]–[55] (Campbell J, with whom Beazley JA and Pearlman AJA agreed); Mamo v Surace [2014] NSWCA 58; (2014) 86 NSWLR 275 (McColl JA).
After referring to the principle that it is not permissible to draw any inference adverse to a witness from the reliance of the witness on a claim of privilege against self-incrimination, the Court considered Mr Neale’s submission that the process of inferential reasoning in Jones v Dunkel is not available where the absence of evidence is the result of a claim of privilege. In doing so, their Honours observed that although no adverse inference may be drawn from the refusal of a witness to answer a question on the ground that the answer may, or would, tend to incriminate the witness, what the Court was concerned with was something quite different and logically distinct: the inferences that may properly be drawn as a result of the absence of evidence from that witness. The Court referred to a number of cases, including the consideration of the issue by Gilmour J in Australian Securities and Investments Commission v Fortescue Metals Group Ltd (No 5) [2009] FCA 1586; (2009) 264 ALR 201 at 224 [96], where his Honour explained that nothing had been said by the High Court that would extend the general proscription in criminal trials against engaging in inferential Jones v Dunkel reasoning to civil penalty proceedings: see also Australian Securities and Investments Commission v Geary [2018] VSCA 103; (2018) 126 ACSR 310 (Ferguson CJ, Weinberg JA and Sifris AJA) at 345-346 [233]–[235].
Having explained that inferential Jones v Dunkel reasoning is applicable to proceedings such as the present which involve a claim for the imposition of a civil penalty, the question becomes: what does this inferential reasoning involve?
In Australian Securities and Investments Commission v Hellicar [2012] HCA 17; (2012) 247 CLR 345 at 412–413 [165]-[167], French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ discussed the evidentiary consequences of a party failing to call a witness, as follows:
Disputed questions of fact must be decided by a court according to the evidence that the parties adduce, not according to some speculation about what other evidence might possibly had been led. Principles governing the onus the standard of proof must faithfully be applied. And there are cases where demonstration that other evidence could have been, but was not, called may properly be taken into account in determining whether a party has proved its case to the requisite standard...
Lord Mansfield’s dictum in Blatch v Archer that ‘[i]t is certainly a maxim that all evidence is to be weighed according to the proof which it was in the power of one side to have produced and in the power of the other to have contradicted’ is not to be understood as countenancing any departure from any of these rules. Indeed, in Blatch v Archer itself, Lord Mansfield concluded that the maxim was not engaged for ‘it would have been very improper to have called’ the person whose account of events was not available to the court.
This Court’s decision in Jones v Dunkel is a particular and vivid example of the principles that govern how the demonstration that other evidence could have been called, but was not, may be used. The essential facts of the case, though well known, should be restated. The personal representative of a driver who had died in a collision with another vehicle brought an action for damages on her behalf and on behalf of the deceased driver’s dependents. The plaintiff’s case depended on demonstration that the other driver’s negligence was a cause of the accident. The plaintiff sought to demonstrate negligence by having the tribunal of fact (in that case a jury) infer from facts concerning the road and the two vehicles involved that the collision had occurred when the defendant’s vehicle was on the wrong side of the road. One of the defendants, the surviving driver, did not give evidence at the trial. The Court divided about whether the inference which the plaintiff sought to have the jury draw about where the collision occurred was an inference that was open on the evidence. But the Court held ‘that any inference favourable to the plaintiff for which there was ground in the evidence might be more confidently drawn where a person presumably able to put the true complexion on the facts relied on as the ground for the inference has not been called as a witness by the defendant and the evidence provides no sufficient explanation of his absence.’
Further, at 432 [232], Heydon J explained the inferences that may be drawn from the failure of a witness to be called:
One is that the trier of fact may infer that the evidence of the absent witness would not assist the case of that party. The other is that the trier of fact may draw an inference unfavourable to that party with greater confidence. But Jones v Dunkel does not enable the trier of fact to infer that the evidence of the absent witness would have been positively adverse to that party.
(emphasis added)
Put another way, the rule does not enable the absence of evidence of a witness (party or non-party) to make up any deficiency of evidence and it will not support an adverse inference unless the evidence otherwise provides a basis on which that unfavourable inference can be drawn. But where evidence has been left uncontradicted, any inference favourable to a party for which there was a basis in the evidence, might be more confidently drawn when a person, presumably able to put the true complexion on the facts relied on as the ground for the inference, has not been called as a witness and the evidence provides no sufficient explanation of that person’s absence. Here I pause to note that no attempt was made to explain the absence of evidence of any witness on behalf of the respondents.
With these principles in mind, I now turn to my findings as to what in fact relevantly occurred. Although I have thought it appropriate to explain the principled approach at some length, determining what actually occurred in this case does not create significant difficulties. This is for three reasons: first, as will become evident, this case is not so much about disputes regarding the underlying facts proved in the evidence as it is about the characterisations of the facts and legal conclusions to be drawn from the facts that emerge from the documents and the evidence given by the witnesses called in the applicants’ cases; secondly, when it comes to an assessment of the documents (including telephone records), the picture that emerges, particularly as to the organisation of events and involvement of Mr McAleer (and to a more limited extent, Mr Keating), is not attended by any real doubt; and thirdly, much evidence given by important Patricks witnesses as to the happening and timing of events was not the subject of challenge.
C THE RELEVANT EVENTS: FINDINGS
C.1 The Terminal and the Sublease Area
As noted in the Introduction, Patricks was responsible for the operation of the Terminal, being a container terminal facility located at Port Botany, which at relevant times included:
·a Quay Line, being vessel loading facilities, including cranes, located on the south side of the Terminal, along the water’s edge;
·a Yard, being a large area, which is used to store containers awaiting import or export and in which containers are “staged” after they are first removed from a vessel (pending delivery to the rail siding or truck grids) or after they are removed from a truck or train (pending delivery to the quayside for loading onto a vessel); automated straddle cranes move containers between the Quay Line and the truck grids within the Yard;
·a Rail Yard being a rail siding, located on the northern side of the Terminal, where trains can be loaded and unloaded with containers; on the northern side of the rail line is an area known as the “rail stacks” at which a number of containers can be stored for a short period of time in connexion with the loading and unloading of trains (Rail Stacks). Export containers that are unloaded off trains are placed in the Rail Stacks pending transfer by truck to the Yard, and ultimately loading onto vessels; the placement of import containers in the Rail Stacks is intended to be on a short term basis only before being loaded on their designated train;
·Truck Grids being spaces for trucks to be loaded and unloaded (either for transport to the Yard or the Rail Yard), located on the southern side of the Rail Yard, between the Rail Yard and the Yard.
Additionally, at the far north western end of the Terminal is an area which prior to early 2017 had been unused. This area (Sublease Area) is centrally significant to what ensued.
Across the road and to the east of the Terminal was an area known as the “Sydney Haulage facility” which was leased by Qube for the purpose of providing, among other things, the storage and service of empty containers. There was a rail siding at the Sydney Haulage facility that allowed the loading and unloading of trains within the facility. For reasons that are unnecessary to detail, in late 2016, the lessor of Qube indicated that it would not renew the lease. This created a difficulty in that Qube would not be able to use the Sydney Haulage facility to provide for the storage and service of empty containers after the end of April 2017 and would be required to move all containers and equipment by that time.
Although the evidence as to the background circumstances was limited, it appears that following the notification from the lessor, Qube made a request of Patricks that Qube be able to use the Sublease Area for services, including the storing and servicing of empty containers. Whatever other motivations existed, the proposal was no doubt attractive to Patricks because it allowed it to obtain some income from land which was not being used for stevedoring operations. In any event, Patricks agreed to the request and Qube made arrangements to relocate empty containers and equipment from the Sydney Haulage facility. Additionally, Qube commenced performing work relating to the movement of containers by truck between the Rail Yard and the Truck Grids.
C.2 The Enterprise Agreement and Problems Emerge
An agreement, being the Patrick Terminals Enterprise Agreement 2016, constituting a “workplace instrument” under the FW Act had been approved on 21 December 2016 and commenced operation on 28 December 2016 (Enterprise Agreement). It relevantly applied to Patrick Holdings, the employees and the Union. Its nominal expiry date is 30 June 2020 and hence it was applicable during the period with which we are concerned. It is common ground that the nominal expiry date was known to all respondents (Exhibit J at [13]).
As noted above, it was in late 2016 that the lessor of Qube indicated that it would not renew the lease of the facility. The timing of this indication and the timing of the related proposal that Qube be able to use the Sublease Area, is not a matter necessary to determine with precision for the purposes of this liability aspect of the case. Subject to hearing submissions, however, the question of timing and how this timing related to the negotiation and finalisation of the Enterprise Agreement may be relevant should this matter proceed to a penalty stage. For present purposes, it is convenient to skip over the Enterprise Agreement, although it will be necessary to return to some of its terms, in detail, below.
In any event, apart from any other issues, coming so soon after the commencement of the operation of the Enterprise Agreement, the proposal that Patricks sublease the Sublease Area to Qube and the attendant steps to be taken to implement this plan, were not developments received with equanimity by the Union and its officials.
As early as 7 December 2016, Mr Keating (who, it will be recalled, was the deputy secretary of the Sydney branch of the Union) had a telephone conversation with Mr Guy, the Terminal Manager, about rumours related to the Sublease Area (Exhibit C at [32]). The following day, an email was sent (Exhibit N 326) by Mr McAleer (who, it will be recalled, was the secretary of the Sydney branch of the Union) requesting confirmation of Patricks’ intentions noting:
If there are other matters that [Patricks] is formulating behind the scenes, it may be best we give the incoming Enterprise Agreement a small hope of being functional and outline what changes are likely to be made within the overall operation at Port Botany being put on the table now.
No response was sent despite the request for an early reply (apparently because the email had been sent to an old email address), and the following day, a further follow-up email was sent (Exhibit N 326). The frustration and concern of Mr McAleer is evident:
This matter is incredibly serious and I am unsure as to why there has yet to be any communication whatsoever to the MUA regarding the email [sent the day before].
Can you please outline your intentions as well as any decisions made in this matter as a matter of urgency….The least membership deserve is an explanation as to what is happening
(emphasis added).
When Mr Guy eventually sent a response, he confirmed that Patricks did have the intention of developing the Sublease Area and that it would be sub-leased to Qube (Exhibit N 324–325). Discussions ensued on 16 December 2016 when Mr Guy attended a meeting of the Port Botany Terminal Employee Representative Committee, where he described the proposed arrangements for the Sublease Area (Exhibit C at [34]).
Following this discussion, by an email sent on 21 December 2016 (Exhibit N 338), Mr McAleer expressed the “serious concerns” of the Union about, among other things, the proposed use of the Sublease Area. He also noted that because matters had not resolved “satisfactorily”, that the Union “would escalate the matter to National Office to arrange for immediate discussions”.
Following a quietus over the Christmas period, by 10 February 2017, a dispute was notified by the Union relating to the proposed Qube sub-lease of the Sublease Area. Mr Guy and Mr Ryan (the General Manager of Terminal Operations) attended a “national-level meeting” with Mr McAleer and Mr Will Tracey, the Union’s deputy national secretary (Exhibit C at [36]–[39]). A good illustration of the view taken as to the use of the Sublease Area, and the suspicions harboured as to the motives of Patricks and Qube within the Union branch around this time, is recorded in the MUA National Office Report of March 2017 (Exhibit N 346–347), where the following was noted under the topic “Patrick and Qube attack stevedoring work”:
The Sydney Branch reports that Patrick Terminals are in the process of undermining the definition of stevedoring work and attacking wharfie’s jobs at [the Terminal]. With the support of the National Office, the Sydney branch is developing a domestic and international campaign to stop these moves and seeks the support and vigilance of all other MUA branches.
The branch believes this attack is the first front in Qube’s reorganisation of Patrick Terminals since their 50% purchase of the terminals in August 2016 and the appointment of Qube management and directors, such as Chris Corrigan, Maurice James, Paul Digney and Michael Jovicic to the Patrick board and management. Qube has a well-established tactic of undermining stevedoring work in other ports through the use of subsidiary companies.
Patrick have cordoned-off area an area which they say they are not using and are simply leasing to Qube Logistics to use for empty containers for the next 2–3 years. However, the location of the area means that it is also inextricably connected to work processes in the terminal, and it will in all likelihood remove work form the terminal. The area in question is also adjacent to an underused railway line. The use of the rail line is critical to Qube’s business strategy, which involves linking all aspects of the container supply chain and in particular, development of Australia’s largest intermodal container terminal at Moorebank near Liverpool NSW. Due to protests by local residents, containers will only be able to travel from the port to the 1.5 million TEU terminal by rail. The branch believes that establishing the separation of the land near the rail line from the work processes in the terminal is part of Qube and Patrick’s longer-term strategy to remove wharfies from the future rail work at the Port Botany terminal.
The branch is determined to see off this challenge for Qube and Patrick, as we did in 1998, again in 2012 with the automation of Port Botany, and again in 2016 when Qube sought to break up their national agreement with the MUA.
(emphasis added)
One might be tempted to dismiss some of these comments as hyperbole but I do not find that this was the case. The issue of the use by Qube of the Sublease Area was obviously regarded by the branch with intense suspicion and as a harbinger of further actions to be taken by Patricks and Qube adverse to the interests of employees. Although the authorship of the MUA National Office Report was not established, I am satisfied it is appropriate to infer that the views of the branch reflected in that document were an accurate reflection of the view of not only Mr McAleer (who had communicated his serious concerns) but also of Mr Keating, in the absence of evidence to the contrary. Additionally, there does not appear to be any suggestion in the evidence that the actions of the branch were in conflict, in any way, with the wishes or views of the Union at national level. Indeed, the early involvement of Mr Tracey (see the preceding paragraph), rather suggests to the contrary.
On 17 March 2017, the Union filed with the FWC an “Application for the Commission to Deal with a Dispute in Accordance with a Dispute Resolution Procedure” (Exhibit N 367), by which it alleged that Patricks had not complied with its consultation obligations (First FWC Application). In the dispute notification, the Union made clear its position that “the work being performed by Qube is stevedoring, and is either work that could be performed by stevedore employees at the Terminal or is work currently being performed by stevedore employees at the Terminal”. Accordingly, it was alleged that Patricks had failed to consult with employees in respect of the work which it considered to be the same work as that undertaken by the employees. Consistently with what was noted as to national level involvement, the same day, Mr Tracey wrote to Patricks advising that unless the decision to implement Qube’s use of the Sublease Area was suspended, the Union reserved its rights to sue for damages (Exhibit N 382-383). On any view of it, a dispute about the nature of the work to be performed in the Terminal had now arisen between the Union (at both branch and national level) and Patricks.
On 23 March 2017, Mr McAleer wrote to Mr Paddy Crumlin, the national secretary of the Union, that the Sydney Branch was “heading into a significant dispute with Patricks” and was intending on “campaigning in the biggest way possible”, and that “numerous partners” were “already committing to a community, political and industrial response around the world” (Exhibit N 388). Consistently with this, on 7 April 2017, the Union sent correspondence to Australian and international trade unions and organisations, whereby recipients were requested to assist in what was described as its “major dispute with Patrick Port Botany” and requested, in solidarity, that these organisations send a letter to Patricks in a form provided (Exhibit N 441–507).
At some point in the days leading up to the Sublease beginning, a notification was sent by Mr Graham giving operational details of the Qube Sublease which was to begin from 6am on 6 April 2017 (Exhibit N 413). On 6 April 2017, a “Team Based Risk Assessment” was prepared in respect of the activity “Qube truck from empty container park interaction with Terminal Operations” by Mr Laroche and Mr Nathan Beves (Exhibit N 410–412).
The following day and thereafter, there were further communications concerning the emails and letters sent to fraternal industrial associations. Mr McAleer arranged for the correspondence to be sent to, for example, the International Dockworkers Council, the PAME and PEMEN (unions based in Greece), the World Federation of Trade Unions, Unions NSW, the AMIEU, the AMOU, the AIMPE, the ASU, the AMWU, the CFMEU, the FSU, the SA, the TWU, and United Voice) (Exhibit N 421–440). This course of conduct reflected the perception of those within the Union, including Mr McAleer and Mr Keating, that the Union was now involved in a major dispute with Patricks.
Reflecting this perception, in those communications the assertion was made that Patricks was responsible for an “ambush” and was engaged in:
…attempts to compartmentalise the stevedoring terminal at the Port Botany Terminal by putting up flimsy fences to restrict job opportunities for stevedoring workers is a sneaky opportunistic plot to deunionise the terminal, or at the very least to insource cheaper labour.
It is not in dispute between the parties that there was a national and international campaign during this period (T34). The campaign organised by the Union, which had now been stepped up, was furthered by promotion on the “MUA Sydney Branch Facebook page” (Exhibit N 557). On the same day, an email (Exhibit N 420) was also sent internally within the branch of the Union by an officer within the Campaigns Administration section:
Comrades,
Just touching base to let you know we have the following sitting in the foyer:
•30 flags
•New microphones and mic cable
•CFMEU/ MUA merchandise in two bags
Checked with Macka that the loudspeaker was in his car. New batteries are on [Mr McAleer’s] desk.
In Solidarity,
M
Mahla Conomos
On 9 April 2017, an official MUA media release warned that the “historic peace on the docks” was “under threat”, and quoted Mr Tracey as asking: why Qube would “jeopardise future contracts” by “starting a dispute” (Exhibit N 517)? On the same day, a protest assembly formed at the roundabout outside the entry to the Terminal. It was apparent to the general manager of Human Resources, Industrial Relations and Safety, Ms Maria Zoras-Christo, whose evidence was admitted without any limitations upon its use, that the picket had been organised by the Union as there were individuals holding MUA banners, together with individuals wearing MUA merchandise such as hats and t-shirts. She also witnessed Mr McAleer and Mr Keating being present at the picket and addressing the protesters. This picket involved a three-hour blockade of the Terminal during which time the employees, customers and truck operators could not access the Terminal. Ms Zoras-Christo gave unchallenged evidence, which I accept, that it was her understanding based on what she observed that the picket was in relation to the Union’s objection to Qube using the Sublease area (Zoras-Christo affidavit, MNZC-29 at [15]). On the state of the evidence, no other conclusion is reasonably open other than accepting that Ms Zoras-Christo’s understanding was correct.
On 10 April 2017, a conference was held by the Fair Work Commission in relation to the First FWC Application (Exhibit C at [45]–[46]) but it was the events of the following day which became a catalyst for the then existing dispute escalating.
On 11 April 2017, a direction was given by Mr Graham, the Automation and Landside Manager of Patricks (11 April Direction), in the following terms (Exhibit N 782-783):
Team,
Please find attached notification detailing transfer process and commencement time for transfers from Qube Sublease into the Patrick Rail Siding.
Although I will defer making findings on the objective question as to the extent of the change to work within the Terminal occasioned by the 11 April Direction, for the sake of clarity, it is useful at this juncture to reproduce an extract from the cross-examination of Mr Graham (T115–122) as to this direction and his subjective view as to the nature of the work it directed:
In December 2016 there was certainly no other practice of which you were aware that dealt with dealing with empty containers that came to the terminal by truck to be transported by rail?---Yes. That’s correct.
And the first time that there was to be any system for that to operate was after, roughly, 11 April 2017?---Yes. Correct.
***
So for the first time containers that were to go out by train that were delivered to the site were going on a laneway rather than around the rail loop?---Down that laneway, yes.
They had never gone down that laneway before?---That’s correct.
Right. And they were delivered directly to an area of the terminal, the sublease area, that had never been used for the storage of containers before?---That’s correct.
***
They were brought into Patrick’s terminal at Port Botany by… trucks driven to Qube drivers?---They were – they were brought in by the contractor trucks that we were utilising, yes.
Which were driven by Qube drivers?---Yes.
***
And the reason that you gave that direction on 11 April was because there was to be introduced a new process for the transfer of containers to the rail yard?---Yes.
And that new process, without going back to what we were talking about before, involved or didn’t involve, sorry, taking the containers to the truck grid and having them unloaded by the AutoStrads?---Yes, it didn’t involve that, yes.
And it involved the containers moving in a – from a different – or in a different route from the sublease to the rail yard than they otherwise would have got?---Yes.
They otherwise would have gone around the rail loop?---Yes, well, they entered the rail yard in the same position, but yes.
I understand they entered rail yard in the same position. They travelled on a different road, or a different piece of road from the sublease to the rail yard?---Yes.
And they travelled on train – on trucks that had been diverted from the rail loop?---Yes, they were rail loop trucks, yes.
That wasn’t my question, sir. They travelled on trucks that had been diverted from the rail loop, correct?---My definition of rail loop is slightly different to yours, so it seems.
Sir, the rail loop trucks - - -?---Yes.
- - - were diverted from the standard loop and sent to the sublease, correct?---Yes, from the standard loop, yes.
Right. And they were diverted to the sublease to pick up the empties, and take them to the rail yard, correct?---Yes.
And that was a practice in respect of the movement of containers in the terminal that did not exist until after 11 April, correct?---Yes.
And when you gave this direction, you were changing the practice that existed at the terminal for the movement of containers around the terminal?---No.
Sir, before then, we went through the process that existed before then for the movement of containers, before then, the transfer of containers did not involve trucks – sorry, the rail loop trucks being diverted from the standard loop and being sent to the Qube sublease?---Not to the sublease, no.
No. And the product of this direction was that that was something that was going to be done after the direction was given, correct?---Yes.
And that was different, wasn’t it?---Yes.
Right. And it was also different because containers were being moved from – that had arrived by truck to the terminal, were being moved from an area that was not the truck grid but was the Qube sublease?---Yes.
That was different too, wasn’t it?---Yes, it was different.
Returning to the chronological narrative and my findings, on 12 April 2017, a Qube Narrabri train was loaded with empty containers which arrived at the Rail Yard on trucks from the Sublease Area. Mr McAleer was aware that Qube was “running boxes into the rail”, and his reaction was to “escalate this”. He emailed Mr Bonner and stated that he should “accept this as advice of a dispute at a branch level as well” (Exhibit N 843, 892, 2929–2931 and 2964–2967). In truth, what was occurring was that the pre-existing dispute had been escalated. Notwithstanding tensions were rising, on the following day, the Qube Narromine train was loaded with empty containers and until 19 April 2017, on two more occasions, the rail employees unloaded empty containers from trucks operated by Qube (Exhibit C at [60]).
On 18 April 2017, a meeting was held which was attended by representatives of Patricks, Qube and the Union. At the meeting, the Union representatives reiterated the Union’s position that the work being undertaken by Qube in connexion with its use of the Sublease Area was stevedoring work and that it should be covered by an agreement with the Union on the basis of the Stevedoring Industry Award 2010 (Exhibit C at [49]–[51]; T181, 201-202).
On 19 April 2017, Mr McAleer informed Mr Guy that the rail employees would no longer unload the trucks operated by Qube carrying empty containers and that the matter relating to the Sublease Area “would be put into dispute” (Exhibit C at [52]–[56]).
C.3 The Events of 20 April 2017
Matters now came to a head. During the day shift of 20 April, rail employees were specifically directed to unload empty containers and refused to do so. The details were as follows: a train operated by Qube (the 5166 Narromine Service) was to be “(b)ackload[ed] 20ˈ empties from Qube” (Exhibit N 927). After the train arrived at about 10:30am, Qube trucks arrived from the Sublease Area to be unloaded (Exhibit C at [62]–[63]).
Very shortly before, the telephone records in evidence in Exhibit N establish that at 10:13 am, (that is, approximately 15 minutes before the arrival of the Qube train) which was to be loaded with empty containers, Mr Peter Balzan, a Patricks employee and Union member who works in the railyard, called Mr Keating apparently without success (the call time was four seconds). Three minutes later, Mr Keating returned Mr Balzan’s call and there was a conversation of almost five minutes. Following that conversation with Mr Balzan, Mr Keating sent an SMS to Mr McAleer. After 10:30am, there was a flurry of calls – some apparently unsuccessful: Mr Balzan tried to call Mr Keating; Mr McAleer tried to call Mr Keating; and Mr Keating tried to call Mr McAleer.
In any event, at about 10:54am, Mr Balzan approached Mr Guy and asked to discuss the “rail situation”. Mr Balzan stated that the Qube trucks would not be unloaded (Exhibit C at [66]-[67]). A further conversation to similar effect took place shortly thereafter (Exhibit C at [70]; Exhibit G at [21]). At around the same time, Mr Guy and Mr Laroche went to the Rail Yard and asked the day shift rail employees if they would unload the empty containers from the Qube trucks. In response, Mr Balzan stated that they would not (Exhibit G at [23]-[25]).
At approximately 11:30 am, Mr Balzan called Mr McAleer and there was a conversation in excess of two minutes and Mr McAleer then called Mr Keating at 11:39 am for a 32 minute conversation, immediately followed up by a conversation in which Mr McAleer spoke to Mr Keating for a further two and a half minutes. In the absence of any evidence to the contrary, it is reasonable to infer that Mr McAleer had been apprised of the fact that the escalation of the dispute by the refusal to unload the empty containers had taken place – a course taken with his knowledge, approval and encouragement.
Other evidence establishes that Mr Balzan’s communicated refusal reflected a ban on unloading (Ban) by rail employees which was implemented by the Union during and from the day shift on 20 April. In particular, the evidence demonstrates that various rail employees, during the course of 20 April, stated their position in words to the following effect:
•“We aren’t going to take empty containers from the Qube sub-lease trucks and load the train. It is a new line of work. We haven’t been consulted about it and it’s also within the terminal, therefore it is our work …” (Exhibit C at [67]);
• “We aren’t doing the sub-lease rail trucks due to 1.3” (Exhibit C at [74]; and
•In response to a direction to unload the trucks: “[n]o, under 1.3 we are refusing to do it” (Exhibit C at [80]).
The reference to “1.3” requires some explanation. After the Ban commenced on the day shift, Mr McAleer, in a telephone call to Mr Guy, asserted that Patricks was in breach of the Enterprise Agreement because of “lack of consultation” under clause 1.3 of Part B, Schedule 4 of the Enterprise Agreement (clause 1.3). This allegation is one to which it will be necessary to return, in detail, below. It suffices to note for present purposes, that this was substantively the same allegation that had been made in the First FWC Application lodged by the Union on 17 March 2017.
C.4 The General Stoppage of Work
The position taken by the Union (through the actions of Mr McAleer), was persisted in and indeed became more widespread and extended beyond the Ban.
The evening shift commenced at 2:00pm on 20 April 2017. Following a “toolbox” meeting at the commencement of the shift, all of the employees waited in the crib room and did not commence work. The employees subsequently confirmed that they were supporting “the guys in rail” (that is, the rail employees) and that they would call Mr McAleer to ask him to come down and “tell us what to do” (Exhibit C at [83]–[93]).
At around 3.30pm Mr McAleer was standing close to the yellow fence that divides the open area of the Terminal’s meal room from the carpark. A number of workers were gathered together on the meal room side of the fence and Mr McAleer was talking to the workers through the fence from the carpark (Exhibit J [25]-[26]). After he had a conversation with a security supervisor, Mr David Fox, during which Mr Fox asked Mr McAleer to leave the premises, Mr McAleer turned to the workers who were gathered on the other side of the fence and said words to the effect of “C’mon guys, let’s go”. Mr Fox then had a conversation with Mr May and Mr Guy and said to them that “McAleer will be going and the guys might be going with him”. Shortly thereafter a large number of workers left the Terminal (Fox affidavit, sworn 30 August 2018 at [16]–[25]). Following this activity, the employees on the evening shift on 20 April did not return to work (Exhibit C at [102]). I am satisfied this action was taken because of Mr McAleer’s entreaties, which were designed by him to marshal or rally the employees and were directed at achieving the result of a large number of workers leaving the Terminal.
Matters then escalated quickly. An application was made by Patricks to stop what was contended to be unprotected industrial action in accordance with Part 3–3 of the FW Act (Second FWC Application). The order was sought against employees who were members of the Union pursuant to s 418(2)(b). Employees, including rail employees, maintained the refusal to work (Exhibit C at [106]–[145]) and very late in the evening of 20 April, Deputy President Booth of the FWC issued interim orders. These orders required, in effect, that the employees not engage in industrial action in the form of a ban on the loading or unloading of trucks arriving at the Rail Yard, or in a stoppage or refusal to attend for or perform work (General Stoppage of Work).
On the night shift of 20 April, leading into 21 April, the General Stoppage of Work at the Terminal continued. At that time, the employees on shift were represented by Mr Matthew Bonner (Exhibit H at [40]-[46]). That night, Mr Bonner placed telephone calls to Mr McAleer, lasting 67 seconds, at 10:36pm; and Mr Keating, lasting 143 seconds, at 10:37pm.
Despite the order, the General Stoppage of Work continued the following day. During the day shift on 21 April, the employees on shift were represented by Mr Dean Harris (Exhibit H [55], [62], [64]). That morning, Mr Harris made two telephone calls to Mr Keating at 11:55am and 11:56am (seemingly without success as each call lasted only a few seconds); and then made a further telephone call lasting 29 seconds to Mr McAleer at 12:29 pm. At 1:48pm Mr McAleer was at the entrance of the Terminal carpark addressing employees who were due to commence their shift (Denham affidavit Annexure JPD-10 [101]–[104]). In the absence of any countervailing evidence, it is necessary to conclude that it was more likely than not that Mr McAleer was aware of precisely what was occurring concerning the General Stoppage of Work and it conformed to his wishes as to the appropriate industrial strategy to undertake to escalate the dispute.
What also occurred on 21 April, is that at 12:11pm, Mr Fernon SC on behalf of Patricks, had appeared ex parte before the Duty Judge, Perram J, commencing the Patrick Proceeding. Mr Fernon made an urgent application, or more accurately, alternative applications: one to enforce the orders made the previous evening by the FWC in the Second FWC Application; the other, a “direct injunction” to prevent, effectively, industrial action before the expiry of the nominal period. Mr Fernon explained (T4.13-19):
… there is an area of the Patrick terminal which is occupied by a related company, Qube. That company, I think, subleases that area and stores empty containers in that area. That sort of operation was previously conducted at another place. That operation is now conducted at Qube whereby empty containers are stored there as they’re required. They’re brought out by a truck to be then loaded onto a train, to be taken to wherever they need to be taken.
After a short adjournment occasioned by reason of his Honour requiring more detail and sworn evidence, the matter resumed at 2:19pm. At that time, the following exchange occurred (T5-6):
HIS HONOUR: Yes. Mr Fernon, now I’ve read the second affidavit. I’ve got a couple of questions. So in paragraph 6(c), it’s a bit cryptic. “Previously conducted at a different location being a location within a stevedoring terminal operated by a different stevedoring company.” Okay. What does that mean?
MR FERNON: That means, your Honour, that the containers that are now stored in the area subleased by [Qube] were formally stored by a different stevedoring company.
HIS HONOUR: Am I allowed to know who the different stevedoring company is?
MR FERNON: The company’s name is DP World.
HIS HONOUR: DP World. All right. Okay.
MR FERNON: So effectively stored at one place previously, now stored at ‑ ‑ ‑
HIS HONOUR: So the MUAs complaint is essentially this is an attempt to use non-unionised labour for stevedoring activities and your point is this is not a stevedoring activity.
MR FERNON: Not a stevedoring activity and done by [Qube] not done by ‑ ‑ ‑
HIS HONOUR: Not by you, yes.
MR FERNON: ‑ ‑ ‑ done by Patrick’s, yes. And some of the flavour of that your Honour might have seen from ‑ ‑ ‑
HIS HONOUR: Yes. No, I read it. Thank you. That was useful. So I suppose your strongest case is to enforce the conditions order.
MR FERNON: Yes, your Honour.
HIS HONOUR: Which requires little investigation on my part.
MR FERNON: Yes.
HIS HONOUR: And then order is there. One question, why an ex parte injunction? Why not short service?
MR FERNON: Because, your Honour, there are as I understand it two vessels presently at the terminal.
HIS HONOUR: They’re the ones which haven’t been sealed up, I assume.
MR FERNON: Yes, your Honour. And they should be being worked on this morning. It may be that they should have been completed. Now, I’m not sure about that detail but there’s work to be done immediately, your Honour, and the matter is urgent, and your Honour it was dealt with last night in terms of the industrial merits side of it. And so that what we’re concerned about is the breach of the commission order which is preventing the work from being done.
Justice Perram made orders which were directed to those employees identified in Schedule A of the order (as being persons who had refused to perform work) and also to other relevant persons (identified in Schedule B). The orders were relevantly in the following terms:
Upon the prospective Applicant, through its counsel giving the usual undertakings as to damages, the Court orders:
1.Each of the persons identified in the Schedule are restrained from engaging in industrial action in the form of a stoppage of work or refusal to attend for, or perform work, at the Port Botany container terminal operated by the Applicant.
2.Each of the persons identified in the Schedule are restrained from engaging in industrial action in the form of a ban on the loading or unloading of trucks arriving at the railyard of the Port Botany container terminal operated by the Applicant.
3.These orders may be served by sending a series of text messages to each employee in the Schedule to the effect that:
a. First text message: “An order that concerns you has been made by the Federal Court of Australia in relation to the stoppage of work and ban at the Patrick Container Terminal. Please see text message following.”
b. Second text message: “A copy of the order has been placed on the noticeboard at the site for your information. Please call Gus May on [xx xx xx] if you would like a copy of the order”.
c. Third text message: “A copy of the application that was made and supporting affidavits can be obtained from Mr May on request”.
A useful picture of what then went on can be gleaned from an exchange of emails between Mr McAleer and Mr Crumlin (Exhibit N 1178) by which Mr McAleer expressed his frustration and forwarded an email sent to him by Mr Adam Jacka who had informed him of the developments that afternoon in the Federal Court. It also graphically reflects that Mr McAleer had intentionally sought to rally the workers, or advise them, to conform to the strategy that he had fastened upon. Mr McAleer wrote at 7:15pm that evening:
How did we end up with this shit.
The guys walked back in with the shits filthy on everyone and everything on the basis of working with the company to a fix. They were prepared to back the advice from me. They didn’t want to walk back in the basis of me not being involved in the meeting between jovocic, Ryan and yourselves, a meeting that didn't even happen. I've let them down.
And we have in the background federal court. No wonder this wasn’t described to the members today before they made the decision to walk back in.
I feel massively let down by national office on this whole issue and the way it has been handled since December.
We should reflect the members bravery and courage as their elected leaders not squander their faith and trust in us by believing the filthy rotten boss
(uncorrected from the original, emphasis added).
C.5 The Ban Continues
Following the orders of the Federal Court, the General Stoppage of Work on 20 and 21 April came to an end. At around the same time, apparently a decision was made by Patricks not to require the rail employees to unload empty containers from trucks operated by Qube leading up to Anzac Day (apparently to avoid triggering the ban on such activity and creating a situation of increased industrial hostility (Exhibit C at [156]–[159])). Mr Guy gave evidence that he had expected the rail employees to continue to refuse to do the work the subject of the Ban based on his discussions with Mr McAleer, the events of the previous three days, and because no employee had indicated a willingness to do the relevant work (Exhibit Q2 at [5]).
But following Anzac Day, the Ban continued. On the morning of 26 April, Mr Keating again asserted that Patricks’ direction to load empty containers from the Sublease Area was a breach of clause 1.3, and that what Patricks was doing was “fancy manoeuvring” around the stevedoring award (Exhibit C at [167]). Mr Oates, one of the rail employees on the 26 April 2017 day shift, indicated that they were not performing the work because they had been told not to by the Union (Exhibit C at [172]).
Before meeting with Mr Guy on 26 April, the rail employees on the day shift indicated that they wished to be represented by Mr Matthew Freestone (Exhibit C at [176]). At 11:39am, Mr Freestone made a telephone call to Mr Keating which lasted 1 minute and 45 seconds. Mr Freestone then proceeded to represent the rail employees on the 27 April day shift in their discussion with Mr Guy, and stated that they would not perform the work of back loading empty containers in reliance on clause 1.3 (Exhibit C at [177]).
At around 1:18pm on that day, Ms Zoras-Christo observed Mr McAleer and Mr Garett standing in the carpark with five employees, two of whom were Ms Adele Lucas and Mr Matthew Freestone. Mr Garrett was the assistant secretary of the Sydney branch of the Union (Zoras-Christo affidavit MNZC-29 at [24]).
During the evening shift on 27 April, Mr John Bell acted as a representative of the rail employees who refused to backload empty containers (Exhibit G at [90]–[93]). At 3:17pm, Mr Bell made a telephone call to Mr Keating which lasted 27 seconds. Consistently with the position previously notified, the evening shift employees on 27 April said that they would not unload empty containers from Qube trucks arriving from the Sublease Area (Exhibit G at [92]).
It might be thought to be a considerable understatement to remark that Mr McAleer continued to feel strongly about the matter. On 29 April, in responding to an email sent by Mr Keating to Patricks criticising the issuing of warning letters, he stated “[t]he company will be broken or broke” (Exhibit N 1693).
At about 10.30am on 1 May, Mr McAleer and Mr Keating arrived at the Terminal and waited near the security office. Around five minutes later, the rail employees scheduled to work on the 1 May day shift met with Mr McAleer and Mr Keating. A meeting then took place between Mr Higham, a Union delegate and employee, Mr Tony Micic, an employee, Mr Michael UpCroft, another employee and the WHS Committee Chairman, Mr Frawley and Mr Guy. At this meeting, Mr Guy indicated that he would be happy to have a discussion regarding the Qube trucks after the train was loaded. Mr Micic asserted that the employees did not need to load the empty containers because there were other containers that could be loaded. Mr Guy responded by re-iterating that the Qube trucks were loaded, and needed to be unloaded. Mr Keating then raised the issue that there had been no risk assessment or standard operating activity done for the loading of empty containers (Exhibit C at [204]-[208]). Shortly after this meeting concluded, Mr Frawley and Mr Guy presented warning letters to those 1 May rail employees who had not previously received them (Exhibit G at [202]-[219]) .
There were multiple subsequent meetings between Mr Frawley, Mr Guy, Mr McAleer, Mr Keating and various rail employees throughout the day. In particular, not long after 12.30pm, Mr Guy provided Mr McAleer with a copy of an unsealed Federal Court order. At this meeting, Mr McAleer asserted the argument made by the Union which was persisted in at the hearing in greater amplitude: Patricks’ direction to load empty containers from the sub-lease onto trains in the Rail Yard was in breach of clause 1.3, there had been no consultation regarding the change to accepted practice; as a consequence, there had not been industrial action, and the receival and delivery process within the Terminal had changed dramatically (Exhibit C at [226]–[223]). Mr Keating was present at this meeting, saying words to the effect: “you show utter contempt for your employees”, and requesting that the meeting be recorded (Exhibit C at [226]-[232]). Following this meeting, Mr Keating and Mr McAleer gathered again with the rail employees in the carpark. At around 1pm, Mr Guy approached the group and indicated he would give the employees five minutes to get advice from Mr McAleer and Mr Keating. Less than ten minutes later, the employees, Mr Keating and Mr McAleer moved into the meeting room near the security office. Mr Guy proceeded to read the pre-prepared script which directed the employees to work the Qube trucks. After reading the script, Mr Guy gave the employees a further five minutes to discuss what they had just been told. Shortly thereafter, Mr McAleer said that they had contacted the workers’ legal representatives and were awaiting advice. Mr McAleer and Mr Keating then returned to the carpark. At 1.20pm, Mr Frawley and Mr Guy again approached the group which had gathered in carpark; Mr Guy telling the employees that they needed to return to work and he attempted to read the script again. While reading the script, Mr McAleer and Mr Keating approached him, Mr McAleer swearing. As this took place, the employees began to walk away. Mr Guy followed them and warned that they were in breach of Federal Court orders. Five minutes later, the group remained in the carpark. Mr Guy asked if they had a response to his direction. Three employees contended that they were sick because of stress, and went home. The remaining rail employees did not perform any work for the remainder of the day. I accept Mr Laroche’s evidence that he directed the rail employees to work and that they refused. In the absence of any evidence to the contrary, I consider it is far more likely than not that the rail employees did so because both Mr McAleer and Mr Keating had both encouraged them to refuse to act in accordance with the direction made and, in doing so, entreated them to conform with the strategy that they had agreed upon on behalf of the branch.
On 2 May, another official of the branch, Mr Warren Smith, sent an email indicating that “[w]e are campaigning in an attempt to sway the company through leverage on ships that call into the port and have contracts with Patrick” (Exhibit N 1940). Mr Graham gave evidence, which I accept, that Patricks was required to cancel the day shift on 2 May because there were not enough skilled employees to perform the work due to the number stood down the previous day (Exhibit A at [118]–[119]; Exhibit QA at [11]–[13]).
C.6 Work Resumes
On 4 May, Deputy President Booth heard the Second FWC Application and made orders (Exhibit N 2014). By this time, Mr Crumlin had expressed the view that the opportunity to achieve certain demands “won’t last long if we don’t get the blokes back to work” (Exhibit N 2016). In effect, this is what happened. Mr Coulton attended a meeting with Mr Paul Digney (Qube’s Chief Operating Officer), Mr McAleer and Mr Crumlin at Qube’s offices to determine whether Qube and the Union could resolve the ongoing dispute (Exhibit Q3 at [159(a)] and [160(e)]). When the rail employees on the evening shift attended for work, they performed work as directed and back loaded empty containers (Exhibit A at [127]).
Notwithstanding the end of the Ban, a number of Qube trains that had initially been scheduled to be back loaded with empty containers in the Rail Yard up until 8 May 2017, were cancelled. I will need to return to this matter, being a fact relied upon by Qube (but not Patricks), below.
D THE CASE OF PATRICKS AND QUBE
D.1 A Summary of the Case of the applicants
Having identified my findings of fact, it is appropriate to summarise the case made by the applicants. As noted above, the range of contravening conduct alleged is diverse and, one might think, unnecessarily complex.
In any event, it is alleged that all of the action found above to have been taken by the employees occurred in the period between the approval of the Enterprise Agreement and its nominal expiry date. Each employee who engaged in such action, was a member of the Union (Exhibit K at [10], [14]–[142]; Exhibit L at [14]–[142]) and was covered by the Enterprise Agreement (see amended defence [9(b)]; Exhibit A at [6]–[7]; Exhibit C at [9]–[10]).
Accordingly, it is asserted that by engaging in the action taken (which the applicants characterise as “industrial action” within the meaning of s 19(1) of the FW Act), the employees contravened s 417(1) of the FW Act and, in relation to those employees who engaged in industrial action after the FWC made interim orders, conduct occurred in contravention of s 421(1) of the FW Act.
It is next contended that the Union and Mr McAleer organised the alleged industrial action or that they were involved in the action within the meaning of s 550 of the FW Act. Further allegations of involvement in contravening conduct by employees is alleged together with conduct contrary to ss 340(1) (adverse action) and 343(1) (coercion). As noted above, similar allegations are made as against Mr Keating but limited to the day shift on 1 May 2017. All these allegations by Patricks arise out of the same factual substratum. I deal with these aspects of the case, to the extent I can, below.
D.2 The Differences between the cases of Patricks and Qube
There are three differences between the cases of Patricks and Qube on liability.
First, in addition to the ss 417 and 421 cases outlined above, Patricks advance a case that in organising the action that took place at the Terminal, the Union, Mr McAleer and Mr Keating (as to 1 May 2017) either took or were involved in, “adverse action” against Patrick Holdings contrary to s 340(1) of the FW Act. The action taken, it is said, was a means to place pressure not to direct that employees perform work connected to the Sublease Area, “as part of [the Union’s] broader effort to stop and reverse those developments”. I will deal with this aspect of the case in Section H.1 below.
Secondly, Patricks advance a further case that the respondents took action to organise, or took action, with intent to coerce Patricks not to exercise a workplace right; or were involved in similar contravening conduct by the employees. I will make further reference to this aspect of the case in Section H.2 below.
Thirdly, Qube contends that the Ban, that is, the limitation or restriction on the performance of work, being the refusal to unload empty containers from Sublease Area from the day shift on 20 April 2017 lasted until 8 May 2017. Patricks’ case is that it alleges the relevant contravening conduct only up until the day shift on 1 May 2017. Additionally, in the Qube Proceeding it is alleged that the Ban affected Qube on the 22 April, 24 April and 27 April 2017 day shifts. I will deal with this aspect of the case in Section I below.
D.3 Principles relating to “organising” and “involvement”
I will deal below with the disputed question as to whether or not “industrial action” within the meaning of s 19(1) of the FW Act took place. It is convenient to set out, in this part of the reasons, what is meant by “organising” industrial action or involvement in industrial action in the event that the applicants’ contention that industrial action occurred is vindicated.
I Organising
Section 417 is directed to both “organising” and “engaging in” industrial action but given the discontinuance of proceedings against the employees, it is only the former concept which remains directly relevant. I will return to the definition of “industrial action” below, but s 417 relevantly provides as follows:
Industrial action must not be organised or engaged in before nominal expiry date of enterprise agreement etc.
No industrial action
(1)A person referred to in subsection (2) must not organise or engage in industrial action from the day on which:
(a)an enterprise agreement is approved by the FWC until its nominal expiry date has passed; or
(b)a workplace determination comes into operation until its nominal expiry date has passed;
whether or not the industrial action relates to a matter dealt with in the agreement or determination.
(2)The persons are:
(a)an employer, employee, or employee organisation, who is covered by the agreement or determination; or
(b)an officer of an employee organisation that is covered by the agreement or determination, acting in that capacity.
***
The term “organise” is not defined in the FW Act (nor for that matter, is the term “engage”). It follows that the verb is to be given its ordinary meaning having regard to the object and purpose of the provisions in which it appears: see Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2015] FCAFC 25; (2015) 230 FCR 298 at 326 [144].
What is evident from the authorities is that while being a passive observer of conduct is not sufficient to have constituted organising action, the concept of “organisation” may involve a variety of forms, so long as it involves positive conduct which is intended to, and does, induce others to engage in conduct (Director of the Fair Work Building Industry Inspectorate v Robinson [2016] FCA 525; (2016) 241 FCR 338 at 348 [53]). It can take the form of marshalling or rallying employees through “a number of discrete acts directed at achieving cohesiveness in a result”: see Robinson at 348 [53].
In BHP Coal at 326 [144]–[146], the Full Court (Logan, Bromberg and Katzmann JJ) observed:
The word “organised” as Isaac J said in Pirrie v McFarlane (1925) 36 CLR 170 at 203 “is in itself of large connotation”. However, it is not the type or extent of the conduct falling within the scope of the word that we need here to consider but rather the sense in which it has been employed in s 417(1) of the FW Act.
The conduct prohibited by s 417(1) is the organisation or engagement in industrial action...
The mischief with which s 417(1) is concerned is that industrial action not occur in the period from which an enterprise agreement (or workplace determination) is approved (or comes into operation), until the time that the nominal expiry date of the instrument has passed. The evident intent is to ensure that that period is free of industrial action. The intent is reflected in the heading to Div 3 of Pt 3–3, the only provision of which is s 417. The heading reads “No industrial action before nominal expiry date of enterprise agreement etc.”
II Involvement in contraventions
In addition to having organised the employees’ contraventions of s 340, it was submitted that by reason of s 550 of the FW Act the respondents were also “involved” and “knowingly concerned” in either all (or in the case of Mr Keating, only some) of the employees’ contraventions. On each occasion that an employee engaged in industrial action, “adverse action” was taken: FW Act s 342(1), item 5(b). The employees did so for the same reasons as the respondents and by taking adverse action for those reasons, the employees contravened s 340(1).
As my findings indicate, the respondents had knowledge that the employees would and did engage in industrial action; that Patricks had workplace rights under the Enterprise Agreement and were exercising rights by requiring the employees to do the relevant work. They also knew the reason for the employees taking industrial action was Patricks’ actual and proposed exercise of its workplace rights. The evidence establishes that each of the respondents (to the extent pleaded) abetted, counselled and advised the employees to engage in the conduct which constituted the contraventions and that they procured it. It follows inexorably, that they were each “involved” in the employees’ contraventions, and hence are taken to have contravened s 340(1) in this respect.
Finally, for completeness, the submission that Mr McAleer (and therefore presumably the Union) acted in accordance with their view of the Enterprise Agreement and clause 1.3 is no defence. Whether or not that is so (and again, there is no evidence that it is), they have not disproved that they also acted in part for the reasons alleged by the applicants. Mr McAleer’s belief that his conduct was lawful does not make it so: see Esso Australia Pty Ltd v Australian Workers’ Union [2017] HCA 54; (2017) 92 ALJR 106 at 111 [2], 124-125 [61] (Kiefel CJ, Keane, Nettle and Edelman JJ).
H.2 Alleged contraventions of s 343(1)
This is not the end of the way Patricks put its case. Section 343(1) of the FW Act provides that:
A person must not organise or take, or threaten to organise or take, any action against another person with intent to coerce the other person, or a third person, to:
(a)exercise or not exercise, or propose to exercise or not exercise, a workplace right; or
(b)exercise, or propose to exercise, a workplace right in a particular way.
As has been said by Dowsett and Rares JJ, “[i]t is important to recognise that coercion is a particularly serious form of industrial (mis)conduct”: Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2017] FCAFC 53; (2017) 249 FCR 458 at 480 [97]. When this is understood, it is passing strange that the allegation of coercion was made by Patricks without detailed argument as to why such a contravention should be found being developed in any substantive way – either orally or in writing. It is perhaps because of this that the respondents did not engage with the argument in any detail.
The word “coerce” in the relevant context means to negate choice, and entails a high degree of compulsion being brought to bear, and not merely an intent to influence, persuade or induce. It is essentially a practical matter as to whether the pressure brought to bear leaves the person to whom it is directed with a realistic choice as to whether or not to comply. It is an assessment to be made on the basis of a detailed review of all of the evidence, including any principled engagement of the reversal of onus provision in s 361 of the FW Act.
As the Full Court explained in Australian Building and Construction Commissioner v Hall [2018] FCAFC 83; (2018) 277 IR 75 explained at 88 [25]-[26]:
It is well-established that the expression “intent to coerce” in ss 343 and 355 carries within it a requirement to establish two discrete elements: the negation of choice; and the use of unlawful, illegitimate or unconscionable conduct to do so (see Esso Australia Pty Ltd v Australian Workers’ Union (2016) 245 FCR 39; 258 IR 396 at [174] (Buchanan J, with whom Siopis J agreed at [1]). We interpose that this conclusion and the line of authorities relied upon to reach it do not appear to have been affected by the recent High Court judgment on appeal from that judgment (see Esso Australia Pty Ltd v Australian Workers’ Union (2017) 92 ALJR 106; 271 IR 210 at [61] (Kiefel CJ, Keane, Nettle and Edelman JJ).
Furthermore, and most importantly for present purposes, the Full Court also held in Esso that the intent aspect of the expression “intent to coerce” applies to the negation of choice element. This contrasts with the other element, the use of unlawful, illegitimate or unconscionable conduct, which is to be assessed objectively (see Esso at [194]). It follows that the relevant particular intent for the purposes of a contravention of ss 343 and 355 is an intent to negate choice. It follows further that, for the presumption in s 361 to operate with respect to a contravention of those sections, the particular intent that must be alleged in the application is an intent to negate choice. Conversely, alleging that the particular intent was an “intent to coerce” creates ambiguity because that expression does not refer to an intent per se, but rather, as discussed above, refers to the two elements of coercion, only one of which relates to the alleged contravener’s intent.
Patricks dealt with this submission substantively in just five paragraphs of its lengthy closing submissions. It was stated that the respondents “sought in a practical sense to negate the choice” of Patricks to continue to require that employees at the Rail Yard handle empty containers. Further, it was said that the actions of the employees left Patricks with a choice between having work in the Rail Yard done on the terms which the respondents dictated, or not at all.
In order to understand how Patricks put this part of its case, it is necessary to go to Section F of the third amended statement of claim (alas there are two “Section F”s, but the s 343 contraventions are pleaded in the second of these sections, at [207X]). This is important not only for the purpose of understanding Patricks’ coercion case, but it also serves to illustrate the cumbrous and confusing nature of the pleading. Before getting to Section F, it is necessary to reproduce some earlier sections of the pleading being [10A], [10B] and [207A]. These were in the following terms:
10A.It is a term of the Enterprise Agreement that an Employee will perform such work as [Patrick Holdings] from time to time reasonably requires.
Particulars
Clause 6.1 of the Enterprise Agreement; clause 9.7.1 of the Stevedoring Industry Award 1999.
10B.It is a term of the Enterprise Agreement that [Patrick Holdings] may at any time determine which positions, structures and work practices shall exist and the manner in which Employees carry out their duties.
Particulars
Clause 8.4 of the Enterprise Agreement.
207A.By reason of the terms pleaded in paragraphs 10A and 10B above, [Patrick Holdings] at all relevant times had workplace rights as defined in section 341 of the FW Act to direct the work which is to be performed by Employees (Rights to Direct).
The pleading continues:
FSECTION 343 CONTRAVENTIONS
207X.Additionally and alternatively to paragraphs 207DB and 207DC above [which dealt with the alleged s 340 contraventions], on each occasion that an Employee named in Schedule 1-8 engaged in an instance of the Port Botany Industrial Action, he or she did so with the intent to coerce [Patrick Holdings] not to exercise its Rights to Direct at all.
207Y.Additionally and alternatively to paragraph 207X above, on each occasion that an Employee named in Schedule 1-8 engaged in an instance of the Port Botany Industrial Action, he or she did so with intent to coerce [Patrick Holdings] to exercise its Rights to Direct in a particular way, namely in a manner different to that in which it would have exercised them in the normal course of its operations and in the absence of the Port Botany Industrial Action.
207Z.Where an Employee engaged in any instance of the Port Botany Industrial Action for multiple reasons including either or both of those pleaded in paragraphs 207X and/or 207Y above, then the Employee engaged in that action for that reason or reasons.
Particulars
Section 360 of the FW Act.
207AA.It is presumed that each Employee named in Schedule 1-8 engaged in each instance of the Port Botany Industrial Action in which he or she participated for the reasons pleaded in paragraphs 207X and 207Y above, unless each relevant Employee proves otherwise.
Particulars
Section 361 of the FW Act.
207BB.By reason of the matters pleaded in paragraphs 207C-207DE and 207X-207Y above, each Employee, or alternatively the Employees, named in each of Schedules 1- 8, contravened s 343 of the FW Act on each occasion that he or she engaged in an instance of the Port Botany Industrial Action.
207CC.In the premises, each Employee, or alternatively the Employees, named in each of Schedules 1-8 contravened a civil remedy provision as defined in s 539 of the FW Act on each occasion that he or she engaged in an instance of the Port Botany Industrial Action.
(i) Contraventions by the 1st Respondent
207DD.By reason of the matters pleaded in paragraphs 207C-207G, [the Union] organised actions against [Patrick Holdings] in the form of each instance of the Port Botany Industrial Action.
207EE.By reason of the matters pleaded in paragraphs 26A, 26B, 207B, 207J and 207DD above, [the Union] organised actions against the [Patrick Holdings], in the form of each instance of the Port Botany Industrial Action, with the intent to coerce [Patrick Holdings] not to exercise its Rights to Direct at all.
207FF.Further or in the alternative to paragraph 207EE, by reason of the matters pleaded in paragraphs 26A, 26B, 207B, 207J and 207DD above, [the Union] organised actions against [Patrick Holdings], in the form of each instance of the Port Botany Industrial Action, with intent to coerce [Patrick Holdings] to exercise its Rights to Direct in a particular way, namely in a manner different to that in which it would have exercised them in the normal course of its operations and in the absence of the Port Botany Industrial Action.
207GG.By reason of the matters pleaded in paragraphs 207DD-207FF above, [the Union] contravened section 343 of the FW Act with respect to each instance of the Port Botany Industrial Action.
207HH.Additionally and alternatively to paragraphs 207DD to 207GG, by reason of the matters identified in paragraph 207KA above, [the Union] was involved the contraventions of s 343 of the FW Act pleaded in paragraphs 207BB and 207CC above in relation to in each instance of the Port Botany Industrial Action in that it:
a.aided, abetted, counselled or procured each instance of such action; and
b.further and in the alternative, was directly or indirectly knowingly concerned in or party to each instance of that action.
207II.In the premises, by reason of s 550 of the FW Act, [the Union] is taken to have contravened s 343 of the FW Act 146 times, being once in relation to each of:
a.the 3 Employees named in Schedule 1 who engaged in the 20 April Day Shift Rail Action;
b.the 49 Employees named in Schedule 2 who engaged in the 20 April Evening Shift Action;
c.the 30 Employees named in Schedule 3 who engaged in the 20 April Night Shift Action;
d.the 44 Employees named in Schedule 4 who engaged in the 21 April Day Shift Action;
e.the 5 Employees named in Schedule 5 who engaged in the 26 April Day Shift Rail Action;
f.the 5 Employees named in Schedule 6 who engaged in the 26 April Night Shift Rail Action;
g.the 5 Employees named in Schedule 7 who engaged in the 27 April Evening Shift Rail Action; and
h.the 5 Employees named in Schedule 8 who engaged in the 1 May Day Shift Rail Action,
or in the alternative, 8 times, being once with respect to each instance of the Port Botany Industrial Action.
(ii) Contraventions by [Mr McAleer]
207JJ. By reason of the matters set out in paragraphs 207C-207D and 207L-207N above, [Mr McAleer] organised actions against [Patrick Holdings] in the form of each instance of the Port Botany Industrial Action.
207KK.By reason of the matters pleaded in paragraphs 26A, 26B, 207B, 207Q and 207JJ above, [Mr McAleer] organised actions against [Patrick Holdings], in the form of each instance of the Port Botany Industrial Action, with the intent to coerce [Patrick Holdings] to exercise its Rights to Direct at all.
207LL.Further or in the alternative to paragraph 207KK, by reason of the matters pleaded in paragraphs 26A, 26B, 207B, 207Q and 207JJ above, [Mr McAleer] organised actions against [Patrick Holdings], in the form of each instance of the Port Botany Industrial Action, with intent to coerce [Patrick Holdings] to exercise its Rights to Direct in a particular way, namely in a manner different to that in which it would have exercised them in the normal course of its operations and in the absence of the Port Botany Industrial Action.
207MM. By reason of the matters pleaded in paragraphs 207JJ-207LL above, [Mr McAleer] contravened section 343 of the FW Act with respect to each instance of the Port Botany Industrial Action.
207NN. Additionally and alternatively to paragraphs 207JJ to 207MM, by reason of the matters identified in paragraph 207KA above, [Mr McAleer] was involved in the contraventions of s 343 of the FW Act pleaded in paragraphs 2078B and 207CC above in relation to each instance of the Port Botany Industrial Action in that he:
a.aided, abetted, counselled or procured each instance of such action; and
b.her and in the alternative, was directly or indirectly knowingly concerned in or party to each instance of that action.
207OO. In the premises, by reason of s 550 of the FW Act, [Mr McAleer] is taken to have contravened s 340 of the FW Act 146 times, being once in relation to each of:
a.the 3 Employees named in Schedule 1 who engaged in the 20 April Day Shift Rail Action;
b.the 49 Employees named in Schedule 2 who engaged in the 20 April Evening Shift Action;
c.the 30 Employees named in Schedule 3 who engaged in the 20 April Night Shift Action;
d.the 44 Employees named in Schedule 4 who engaged in the 21 April Day Shift Action;
e.the 5 Employees named in Schedule 5 who engaged in the 26 April Day Shift Rail Action;
f.the 5 Employees named in Schedule 6 who engaged in the 26 April Night Shift Rail Action;
g.the 5 Employees named in Schedule 7 who engaged in the 27 April Evening Shift Rail Action; and
h.the 5 Employees named in Schedule 8 who engaged in the 1 May Day Shift Rail Action,
or in the alternative, 8 times, being once with respect to each instance of the Port Botany Industrial Action.
(iii) Contraventions by [Mr Keating]
207PP.By reason of the matters pleaded in paragraphs 207C-207O and 207S, [Mr Keating] organised action against [Patrick Holdings] in the form of the 1 May Day Shift Rail Action.
207QQ. By reason of the matters set out in paragraphs 207C-207D and 207S, [Mr McAleer] organised action against [Patrick Holdings], in the form of the 1 May Day Shift Rail Action, with the intent to coerce [Patrick Holdings] not to exercise its Rights to Direct at all.
207RR.Further or in the alternative to paragraph 207GG, by reason of the matters pleaded in paragraphs 26A, 26B, 207B, 207U and 207PP above, [Mr Keating] organised action against [Patrick Holdings], in the form of the 1 May Day Shift Rail Action, with intent to coerce [Patrick Holdings] to exercise its Rights to Direct in a particular way, namely in a manner different to that in which it would have exercised them in the normal course of its operations and in the absence of the Port Botany Industrial Action.
207SS.By reason of the matters pleaded in paragraphs 207PP-207RR above, [Mr Keating] contravened section 343 of the FW Act with respect to the 1 May Day Shift Rail Action.
207TT.Additionally and alternatively to paragraphs 207PP-207SS, by reason of the matters pleaded in paragraphs 3-4, 16-18, 26, 27A and 68-71B above, [Mr Keating] was involved in the contraventions of s 343 of the FW Act pleaded in paragraphs 207BB and 207CC above in relation to the 1 May Day Shift Rail Action in that he:
a.aided, abetted, counselled or procured that action; and
b.further and in the alternative, was directly or indirectly knowingly concerned in or party to that action.
207UU. In the premises, by reason of s 550 of the FW Act, [Mr Keating] is taken to have contravened s 343 of the FW Act 5 times, being once in relation to each of the 5 Employees named in Schedule 8, or in the alternative, once with respect to the Employees named in Schedule 8.
To illustrate the high level at which this issue was joined, it is then useful to set out the response in the Union’s “Amended Defence” (which, in fact, was a defence to the third amended statement of claim). The pleading was as follows:
F. SECTION 343 CONTRAVENTIONS
207X. The [Union] denies paragraph 207X.
207Y. The [Union] denies paragraph 207Y.
207Z. The [Union] denies paragraph 207Z.
207AA. The [Union] denies paragraph 207AA.
207BB. The [Union] denies paragraph 207BB.
207CC. The Union] denies paragraph 207CC.
(i) Contraventions by [the Union]
207DD. The [Union] denies paragraph 207DD.
207EE. The [Union] denies paragraph 207EE.
207FF. The [Union] denies paragraph 207FF.
207GG. The [Union] denies paragraph 207GG.
207HH. The [Union] denies paragraph 207HH.
207II. The [Union] denies paragraph 207II.
(ii) Contraventions by [Mr McAleer]
207JJ. The [Union] does not plead to paragraph 207JJ.
207KK. The [Union] does not plead to paragraph 207KK.
207LL. The [Union] does not plead to paragraph 207LL.
207MM. The [Union] does not plead to paragraph 207MM.
207NN. The [Union] does not plead to paragraph 207NN.
207OO. The [Union] does not plead to paragraph 207OO.
(iii) Contraventions by [Mr Keating]
207PP. The [Union] does not plead to paragraph 207PP.
207QQ. The [Union] does not plead to paragraph 207QQ.
207RR. The [Union] does not plead to paragraph 207RR.
207SS. The [Union] does not plead to paragraph 207SS.
207TT. The [Union] does not plead to paragraph 207TT.
207UU. The [Union] does not plead to paragraph 207U.
207W. The [Union] dose not plead to paragraph 207W.
It suffices to note that both Mr McAleer and Mr Keating either did not plead to these various paragraphs to the extent that they did not contain allegations against them, or alternatively invoked their privilege against exposure to a civil penalty.
The written closing submissions made on behalf of the respondent did not engage with this aspect of the case at all, save for what was written at RS [65]-[66]:
Section 340 and 343
So far as it is alleged the respondents contravened s 340 and s 343 by organising industrial action for the reasons pleaded by the applicants, they rely on the applicants’ evidence. All of that evidence is contrary to the conclusion the applicants ask the Court to reach regarding the reasons of the respondents. Part of the evidence shows the union had an ongoing community and social media campaign against Patrick, connected with its restructuring of its operations, and not connected with the exercise or proposed exercise by it of any workplace right to direct its employees identified in the pleading.
The balance of the evidence shows that Mr McAleer, like the employees, acted in accordance with a view as to the interpretation of the Agreement, and in particular, as to clause 1.3. So far as it is alleged that Mr McAleer and Mr Keating were complicit in contraventions of s 340 and s 343 by the employees, and therefore contravened those provisions by reason of the operation of s 550, they contend that s 361 does not avail the applicants as to their reasons.
With respect to all those involved, an allegation of coercion is a serious matter and, if the allegation is pressed, I consider the Court should receive greater assistance in determining the pleaded allegations set out above by reference to my evidentiary findings and the applicable law than I have thus far received.
I have made findings relevant to the allegations of contravention including that when the employees engaged in industrial action, they took “adverse action” (FW Act s 342(1), item 5(b)). In the circumstances, I intend to hear further argument as to this aspect of the case, if it is pressed, following the parties having regard to my findings of fact and law in relation to the balance of the liability issues in the case.
I ADDITIONAL QUBE ALLEGATIONS
In the Qube Proceeding, it is claimed that the Ban affected Qube across a number of shifts. This includes three occasions which are not the subject of any claims in the Patricks Proceeding. The three additional periods are:
(a)22 to 24 April 2017, during which period the Ban affected Qube on the 22 April 2017 day shift and 24 April 2017 day shift;
(b) 27 April 2017 day shift; and
(c) 2 to 8 May 2017.
The respondents contend, in part, there was no industrial action by any employees during some of this period on the evidence including, during part of these additional periods, because the employees who would otherwise have worked were absent from work due to illness.
There is, however, a more fundamental difficulty for the latter part of this period. As is evident from my findings, on 4 May 2017, the rail employees on the evening shift attended for work and performed work as directed by Patricks and back loaded empty containers. Although the Ban continued to have some consequential effect because of the prior cancellation of Qube trains, it is incorrect to elide the consequences of the Ban with the existence of the Ban itself. On any view of the evidence, it does not establish to the requisite degree that the Union or Mr McAleer engaged in, or organised, industrial action after 4 May 2017. This aspect of the Qube case founders on the evidence.
I now turn to the balance of Qube’s separate case, being the existence of industrial action: (a) on the 22 April 2017 day shift and 24 April 2017 day shift; (b) during the 27 April day shift; and (c) after the day shift on 1 May 2017 and up until the commencement of work unloading empty containers from Sublease Area work on 4 May 2017.
In relation to the period 22 to 24 April 2017, Qube submits that there is no evidence that the Ban then was anything other than general in nature and not limited to the performance of work on any particular shift(s); the rail employees and the respondents were asserting reliance on clause 1.3 and the Court should infer, in the absence of any evidence to the contrary, that the position asserted and maintained from 20 April continued. Additionally, immediately prior to these dates, on 20 and 21 April, it is said the rail employees acted consistently with the Ban being in place by refusing specific directions to unload empty containers across a number of shifts.
Qube points to the evidence of Mr Guy to the effect that a decision had been made by Patricks not to require the rail employees to unload empty containers from trucks operated by Qube leading up to Anzac Day to avoid triggering the Ban and creating a situation of increased industrial hostility. Mr Guy further stated that he had expected the rail employees to continue to refuse to do the work the subject of the Ban based on his discussions with Mr McAleer, the events of the previous three days and that no employee had indicated a willingness to do the relevant work. It is noted that Mr Guy was not challenged on that evidence and that it was consistent with the evidence of Mr Graham as to a continuing Ban during the shifts on 22 to 24 April.
However, as the respondents correctly point out, Mr Coulton decided, on 21 April, to have the trains sent to Sydney Haulage. That decision was anterior to Mr Guy’s decision, apparently made on the afternoon of 22 April, not to bring Qube trucks from the Container Park into the Rail Yard in the period leading up to Anzac Day. There was no relevant refusal in that period because the work was simply not required on those days. The norm contained in s 417 prohibits the organising or engaging in industrial action during the period between approval of an enterprise agreement and its nominal expiry date. I accept the respondents’ submission that nothing was relevantly engaged in during the period from 22 April until Anzac Day and there could be no relevant refusal to perform work, or any other action in respect of work, which was not being required. Where no industrial action was engaged in, none could have been organised.
In relation to the 27 April day shift, the following was pleaded by Qube:
27 April 2017
(a) 27 April 2017 Day Shift
66. On 27 April 2017, those of the Rail Employees who were rostered on and attended for work during the day shift on 27 April 2017 failed and/or refused to unload empty containers which had been delivered from the Container Park to the Rail Yard on trucks operated by the Second Applicant, so that they could be loaded onto a train operated by the Third Applicant that was scheduled to depart the Rail Yard at 1.00 pm and travel to Narrabri (Eighth Train).
67. The Applicants were informed by Patrick Stevedores that the failure and/or refusal by those of the Rail Employees who were rostered on and attended for work during the day shift on 27 April 2017 to perform the Patrick Stevedores Services was contrary to a requirement that they perform such work and not authorised by Patrick Stevedores.
Particulars
i. Conversation between Mr Dan Coulton and Mr Bruce Guy (Terminal Manager for Patrick Stevedores) on 27 April 2017.
In response, in the Union’s amended defence, a non-admission to paragraph 67 is pleaded, but in relation to the allegation at paragraph 66 the following is averred:
27 April 2017
(a) 27 April 2017 Day Shift
66. As to paragraph 66, the [Union] says:
a. during the course of the 27 April 2017 Day Shift, some or all of the employees failed to unload containers from Qube Trucks;
b. repeats the matters pleaded at paragraph 34(d) and paragraphs 36 (d), (e) and (f) above as to the loading and unloading of trucks entering the Rail Yard directly from the Container Park;
and otherwise does not know and therefore cannot admit the balance of the paragraph.
Qube relies on the fact that subject to the No Industrial Action Contention, the fact of industrial action was admitted by the Union because of the admission that during the course of 27 April day shift some or all of the employees failed to unload containers from the Qube trucks. Although not referred to by Qube, as noted at [10] above, Exhibit J was a Statement of Agreed Facts by which Qube and the Union (but not Mr McAleer and Mr Keating) agreed as to a number of facts for the purpose of the proceedings pursuant to s 191 of the EA. One such fact was:
27 April 2017 Day Shift
32. On 27 April 2017, some or all of the Rail Employees who were rostered on and attended for work during the day shift on 27 April 2017 advised that they would not unload empty shipping containers transferred from the Container Park into the Rail Yard.
Apart from this admission, evidence as to what occurred during the day shift (in contradistinction to the evening shift on 27 April) is sparse. Qube relies on an inference that the Ban continued at all material times from 20 April.
Although I rejected this notion in the limited period leading up to Anzac Day, the notion that there was some other break in the Ban until it was lifted on 4 May is difficult to understand. A further admission (Exhibit J at [30]-[31]) was made by the Union as to some or all of the rail employees who were rostered and attended for work on the day and night shifts on 26 April advising that they would not unload empty shipping containers transferred from the Container Park into the Rail Yard. Mr Laroche gave specific evidence as to the evening shift employees on 27 April saying that they would not unload empty containers.
It seems to me tolerably plain that save for the one break established on the evidence by reason of no direction being made to work in the period between 22 April and Anzac Day, the Ban continued (and hence industrial action continued) during the whole of the period leading up to 4 May. As Qube correctly submits, this conclusion is the only explanation which is logically compatible with the reasons relied upon by the respondents to justify the Ban by the rail employees (which related to the direction to do the contested work generally). The concerns relied upon by the respondents applied during the whole of the period and it would be illogical to find or hold that such reasons applied only during certain shifts but not during other shifts in the same period (save for the period during which no direction was made to perform the relevant work).
In relation to the period 2-4 May 2017, the above reasoning applies. Qube also relies on letters issued to rail employees who were rostered to work the day shift on 1 May and who refused to unload empty containers which stated (Exhibit N 1975):
Given your refusal to perform your duties as directed, Patricks is unable to usefully employ you on shift to perform the work which Patricks requires to be done. As such, I confirm you have been stood down without pay under section 524 of the [FW Act], effective from 02 May 2017. You will remain stood down without pay until such a time as you can be usefully engaged through performing your full duties”.
(emphasis added)
It is said the recipients of the letters refused to unload the Qube trucks on 1 May and, in the absence of evidence from the relevant employees, the only available inference is that the only matter that prevented the recipients of those letters from working after 1 May was their refusal to perform the work the subject of the Ban. It is also said that Mr Graham gave unchallenged evidence that Patricks was required to cancel the day shift on 2 May because those employees had refused to work as directed and therefore were stood down and that this continued to impact its operations until after 4 May.
Moreover, on 4 May, officers of the Union had exchanged emails and documents which indicated the continued dispute and failure of the rail employees to work as required. In particular, on 4 May from Mr Crumlin to Mr Tracey, a set of draft principles was provided for review with the objective of getting the rail workers “back to work” (Exhibit N 2016). Mr Crumlin emphasised that, in effect, the opportunity to achieve certain demands “won’t last long if we don’t get the blokes back to work”. As a part of the industrial deal, the document which Mr Crumlin had drafted referred to the Union advising its members to work in accordance with the Enterprise Agreement. It can be inferred that as at 4 May, immediately prior to the employees starting unloading, this was a requirement that the Ban be “lifted”; logically, therefore, it must have been extant up until that time.
The respondents’ contention to the contrary is unpersuasive. They rely on the fact that Mr Guy’s evidence is that three of the employees in the Rail Yard advised him that they were going home sick due to stress on the afternoon of 1 May (Exhibit C at [270]). Later that day Mr Graham received medical certificates from a number of the rail team members covering periods up to 8 May (Exhibit A at [124]). Under clause 24.1 of the Enterprise Agreement, each permanent employee was entitled to leave to cover absences due to personal illness or injury. Under clause 24.7 of the Enterprise Agreement, it was open to Patricks to require any of the employees concerned to provide evidence supporting their claim for payment of personal leave, in accordance with the Award.
The respondents say there is no evidence that Patricks took the matter any further, and Patricks have no reason to query the genuineness of any employee’s reason for failing to attend work. Given Patricks’ concession that medical certificates were provided by the relevant employees, it is said it is “not open to Qube, in the absence of some direct evidence, to seek to question them”.
With respect, this submission rather misses the point. It is true enough that the evidence demonstrates that some employees on some shifts (but not the particular employees who had been provided with the stand-down letters), provided Patricks with medical certificates saying that they were unfit to work. But the point is those employees were only asked to work because of the refusal of the day shift employees to work because of the Ban. For reasons I have already explained, the conclusion is irresistible, a fortiori in the absence of any evidence from the Union or the employees, that the Ban was in place, and industrial action was extant, during the period from 20 April up until 4 May (save for the limited period leading up to Anzac Day). Such a conclusion accords with both logic and the inherent probabilities.
J CONCLUSION AND ORDERS
In the introduction I referred to the byzantine relief sought, particularly in the Patricks Proceeding. Declaratory relief should be granted in order to reflect the fact that I have found that each of the respondents engaged in contravening conduct. Having said this, the declaratory relief should be expressed as simply and non-repetitively as possible. If it is regarded as necessary by Patricks, I will hear argument as to the coercion allegation on the basis of my findings with the assistance of submissions from the parties to the Patricks Proceeding.
I will adjourn both proceedings to a case management hearing 14 days after delivery of these reasons. I will make an order directing the parties to provide to my Associate agreed or competing short minutes of order before that hearing.
Having quelled the controversy in relation to the liability issues by making orders, ordinarily the next step would be to arrange for a determination of the balance of issues. Although I have not received submissions on the point, it is far from clear to me why injunctive relief is sought. Subject to hearing such submissions, the two matters the subject of any further evidence and then hearing will be the assessment of the statutory compensation and the question of whether or not there should be any order made imposing a pecuniary penalty. Obviously enough, the question of quantification of any compensation is logically anterior to the consideration of whether or not any pecuniary penalty should be imposed. This is because the amount that would be required to be paid to the applicants by way of compensation would be a relevant consideration as to whether or not any pecuniary penalty should be imposed and, if so, its quantum.
I have previously remarked that the protection against adverse costs orders in s 570 of the FW Act, while an important safeguard promoting access to justice, can, in some cases, encourage continued disputation in cases which should resolve: Avenia v Railway & Transport Health Fund Ltd [2017] FCA 859; (2016) 272 IR 151 at 217-218 [280]. It also means some points which might otherwise be abandoned in other types of litigation, are run to the death. I have not reviewed any evidence as to whether or not any compensation would be significant, but real questions must arise as to the economics of the parties reconnoitring the materials to be deployed on a further hearing and resuming hostilities in the event that some pragmatic resolution is achievable. In this regard, I am conscious that the relationship between the protagonists transcends the matters presently canvassed. One would have thought that this broader relationship provides at least some possible scope for the resolution of the balance of the issues without further demand on public resources.
As presently advised, subject to hearing from the parties, when making orders reflecting these reasons, I would propose to make an order under s 53A of the Federal Court of Australia Act 1976 (Cth) referring the balance of these proceedings to a mediation by an identified mediator with such mediation to be conducted prior to any resumed hearing.
I certify that the preceding two hundred and thirty-eight (238) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lee. Associate:
Dated: 2 April 2019
31
33
5