FEDERAL COURT OF AUSTRALIA
United Group Resources Pty Ltd v Calabro (No 5) [2011] FCA 1408
Citation: United Group Resources Pty Ltd v Calabro (No 5) [2011] FCA 1408 Parties: UNITED GROUP RESOURCES PTY LTD ABN 17 114 888 201, AGC INDUSTRIES PTY LTD ABN 57 079 939 898, MODERN ACCESS SERVICES PTY LTD ABN 87 129 312 590, DOWNER EDI ENGINEERING POWER PTY LTD ABN 53 000 983 700, MONADELPHOUS ENGINEERING ASSOCIATES PTY LTD ABN 52 008 861 836, CBI CONSTRUCTORS PTY LTD ABN 90 000 612 411, DECMIL AUSTRALIA PTY LTD ABN 58 116 776 991, FREO GROUP LIMITED ABN 64 009 325 124, MAMMOET AUSTRALIA PTY LTD ABN 77 075 483 644, PCH GROUP LTD ABN 41 009 120 021, RCR CONSTRUCTION & MAINTENANCE PTY LTD ABN 97 063 053 814, RCR POSITRON PTY LTD ABN 38 106 084 879 and JOHN HOLLAND PTY LTD ABN 11 004 282 268 v BRAEDEN CALABRO AND OTHERS LISTED IN THE RESPONDENTS' SCHEDULE A AS AMENDED and THE AUSTRALIAN BUILDING AND CONSTRUCTION COMMISSIONER File number: WAD 14 of 2010 Judge: MCKERRACHER J Date of judgment: 8 December 2011 Corrigendum: 16 December 2011 Catchwords: INDUSTRIAL LAW – unlawful industrial action by more than 1300 respondents - some represented - some not – breach of Fair Work Act 2009 (Cth) (FW Act) and Building and Construction Industry Improvement Act 2005 (Cth) (BCII Act) – purpose of industrial action – motivation of respondents – industrial motivation – liability – liability admitted by represented respondents – agreement on remedy and penalty – appropriate penalty to be determined by the Court – whether it is appropriate to make declarations – analysis of transitional provisions of the FW Act – differences between an agreement-based transitional instructions, Workplace Relations Act instruments and transitional instruments – meaning of industrially-motivated in the BCII Act – definition of ‘industrially-motivated’ in the BCII Act – operation and construction of para (a) of the definition of ‘industrially-motivated’ in the BCII Act – operation and construction of para (d) of the definition of ‘industrially-motivated’ in the BCII Act – meaning of motivation – disruption to the performance of work for the purpose of industrial action
PRACTICE AND PROCEDURE – respondents who have not entered an appearance – former Federal Court Rules O 32 r 2(1)(d) – Court required to consider merits of case and make determination on balance of probabilities – Court entitled to assume correctness of matters upon which the applicant bears the onus – Federal Court Rules 2011 r 1.04 – whether proof of service on absent respondents required before affidavits can be read – where service was not effected personally – leave required to read affidavits without service – where respondents had notice of proceedings and consequences
EVIDENCE - reliance on inference – proof of any fact on the balance of probabilities from which the Court infers a further fact – inferences from primary or intermediate fact – circumstances to be taken into account when drawing an inference – failure to deny or explain facts – admissions made by agents of the unrepresented respondents – establishing liability against unrepresented respondents – unrepresented respondents aware of proceeding and consequences - liability established
Legislation: Building and Construction Industry Improvement Act 2005 (Cth) ss 36, 37(a), 38, 42
Evidence Act 1995 (Cth) ss 81, 87
Fair Work Act 2009 (Cth) ss 19, 417(1), 421(1)
Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 Item 4 of Sch 13
Federal Court Rules O 32 r 2(1)(d)
Workplace Relations Act 1996 (Cth) ss 4, 170MN(1), 327, 330Cases cited: AA Shi Pty Ltd v Avbar Pty Ltd (No 5) [2010] FCA 971
Australian Competition and Consumer Commission v Leahy Petroleum Pty Ltd (2007) 160 FCR 321
A184 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 210 ALR 543
Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2010) 187 FCR 293
Australian Industry Group v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (2003) 130 FCR 524
Australian Securities and Investments Commission v FUELbanc Australia Ltd (2007) 162 FCR 174
Belhaven and Stenton Peerage [1875] 1 App Cas 278
Black v Tung [1953] VLR 629
Blatch v Archer (1774) 98 ER 969
Boyle v Wiseman (1855) 156 ER 598
Bradshaw v McEwans (1951) 217 ALR 1
Bufalo v Official Trustee in Bankruptcy [2011] FCAFC 111
CBI Construction Pty Ltd v Abbott (2008) 177 IR 134
Chamberlain v The Queen (No 2) (1984) 153 CLR 521
Clay v Clay (1999) 20 WAR 427
De Gioia v Darling Island Stevedoring & Lighterage Co Ltd (1941) 42 SR (NSW) 1
Essington Investments Pty Ltd v Regency Property Pty Ltd [2004] NSWCA 375
Fair Work Ombudsman v Kentwood Industries Pty Ltd (No 2) (2010) 201 IR 234
Finance Facilities Pty Ltd v Federal Commissioner of Taxation (1971) 127 CLR 106
Hadgkiss v Aldin (No 2) )(2007) 169 IR 76
The Insurance Commissioner v Joyce (1948) 77 CLR 39
JN Taylor Holdings Ltd (In Liq) v Bond (1993) 59 SASR 432
John Holland Pty Ltd v Construction, Forestry, Mining and Energy Union (No 4) [2011] FCA 618
John Holland Pty Ltd v Construction, Forestry, Mining and Energy Union (No 5) [2011] FCA 1023
Jones v Dunkel (1959) 101 CLR 298
May v O’Sullivan (1955) 92 CLR 654
Hyam v DPP [1975] AC 55
Pacific Carriers Ltd v BNP Paribas (2004) 218 CLR 451
Parker v Paton (1941) 41 SR (NSW) 237
Qantas Airways Ltd v TWU [2011] FCA 470
Scoway Pty Ltd v Faxon Pty Ltd [2004] FCA 249
Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262
Shepherd v The Queen (1990) 170 CLR 573
Stuart-Mahoney v Construction, Forestry, Mining and Energy Union (2008) 177 IR 61Transport Industries Insurance Co Ltd v Longmuir [1997] 1 VR 125
TVBO Production Ltd v Australia Sky Net Pty Ltd (2009) 82 IPR 502
United Group Resources Pty Ltd v Calabro (2010) 192 IR 153
United Group Resources Pty Ltd ABN 17 114 888 201 v Calabro (No 2) (2010) 192 IR 160
United Group Resources Pty Ltd ABN 17 114 888 201 v Calabro (No 3) (2010) 192 IR 170
United Group Resources Pty Ltd v Calabro (No 4) [2010] FCA 791
Warramunda Village Inc v Pryde (2001) 105 FCR 437
Williams v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (2010) 196 IR 365Dates of hearing: 6-9 September 2011, 15-16 September 2011, 20 September 2011 Date of last submissions: 30 September 2011 Place: Perth Division: FAIR WORK DIVISION Category: Catchwords Number of paragraphs: 144 Counsel for the Applicants: S Wood (later S Wood SC) with T Saunders Solicitor for the Applicants: Freehills Counsel for the CEPU Respondents: DH Schapper until 8 September 2011 then J Fiocco Counsel for the AMWU Respondents: RL Hooker Counsel for the CFMEU Respondents: J Fiocco Solicitor for the Respondents: As listed in the attached Respondents' schedule ‘A’ as amended Counsel for the Intervener: IM Neil SC Solicitor for the Intervener: Clayton Utz FEDERAL COURT OF AUSTRALIA
United Group Resources Pty Ltd v Calabro (No 5) [2011] FCA 1408
CORRIGENDUM
1.Paragraph 76 should be read as subparagraph (c) of paragraph 75, reading:
(c)The failure of the unrepresented respondents to deny or explain facts when to do so was in their exclusive power, ‘gives a colour to the other evidence against [them]’ (Boyle v Wiseman (1855) 156 ER 598 (at 600)), ‘allows increased strength or weight to be given to primary facts favourable to [the applicants and the ABCC] and allows inferences favourable to [the applicants and the ABCC] to be more confidently drawn’ (Longmuir (at 143)).
renumbering paragraphs 77-144 to read paragraphs 76-143.
2.The total number of paragraphs is therefore 143.
3.The reference in paragraph 107, renumbered paragraph 106, to ‘set out in [73]-[76]’ should now read ‘set out in [73]-[75]’.
I certify that the preceding three (3) numbered paragraphs are a true copy of the Corrigendum to the Reasons for Judgment herein of the Honourable Justice McKerracher. Associate:
Dated: 16 December 2011
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
FAIR WORK DIVISION
WAD 14 of 2010
BETWEEN: UNITED GROUP RESOURCES PTY LTD ABN 17 114 888 201
First ApplicantAGC INDUSTRIES PTY LTD ABN 57 079 939 898
Second ApplicantMODERN ACCESS SERVICES PTY LTD ABN 87 129 312 590
Third ApplicantDOWNER EDI ENGINEERING POWER PTY LTD ABN 53 000 983 700
Fourth ApplicantMONADELPHOUS ENGINEERING ASSOCIATES PTY LTD ABN 52 008 861 836
Fifth ApplicantCBI CONSTRUCTORS PTY LTD ABN 90 000 612 411
Sixth ApplicantDECMIL AUSTRALIA PTY LTD ABN 58 116 776 991
Seventh ApplicantFREO GROUP LIMITED ABN 64 009 325 124
Eighth ApplicantMAMMOET AUSTRALIA PTY LTD ABN 77 075 483 644
Ninth ApplicantPCH GROUP LTD ABN 41 009 120 021
Tenth ApplicantRCR CONSTRUCTION & MAINTENANCE PTY LTD ABN 97 063 053 814
Eleventh ApplicantRCR POSITRON PTY LTD ABN 38 106 084 879
Twelfth ApplicantJOHN HOLLAND PTY LTD ABN 11 004 282 268
Thirteenth ApplicantAND: BRAEDEN CALABRO AND OTHERS LISTED IN THE RESPONDENTS' SCHEDULE A AS AMENDED
RespondentsAND: THE AUSTRALIAN BUILDING AND CONSTRUCTION COMMISSIONER
Intervener
JUDGE:
MCKERRACHER J
DATE OF ORDER:
30 SEPTEMBER 2011
WHERE MADE:
PERTH
THE COURT ORDERS THAT:
1.There be judgment on liability in favour of the applicants as against all respondents.
2.The intervener’s case against the appearing respondents is adjourned to 10:15 am on 9 December 2011 for the intervener to apply, should it elect to do so, to adduce evidence on one additional aspect only (concerning paragraph 51A of a draft agreed statement); to adduce that evidence if permitted to do so and for the appearing respondents to adduce evidence in response on that issue only, should they elect to do so.
THE COURT DECLARES THAT:
3.The respondents engaged in:
(a)industrial action within the meaning of s 19 of' the Fair Work Act (Cth) 2009 (FW Act); and
(b)building industrial action within the meaning of s 36(1) of the Building and Construction Industry Improvement Act 2005 (Cth) (BCII Act),
on 22, 23, 25, 27, 28, 29 and 30 January 2010 by failing to attend for work on one or more days on which they were rostered to work, for either the whole or part of their rostered shift, as specified in the table annexed to the original orders made herewith, having been attached to the Applicants’ and Intervener’s Minute of Proposed Orders in relation to Liability and Directions in Relation to the Hearing on Remedy dated 20 September 2011 entitled ‘Final summary of respondent numbers and representation’.
4.Each respondent employed by:
(a)United Group Resources Pty Ltd (first applicant);
(b)AGC Industries Pty Ltd (second applicant);
(c)MAS Australasia Pty Ltd (third applicant);
(d)Downer EDI Engineering Power Pty Ltd (fourth applicant);
(e)Monadelphous Engineering Associates Pty Ltd (fifth applicant);
(f)Decmil Australia Pty Ltd (seventh applicant);
(g)PCH Group Ltd (tenth applicant); and
(h)RCR Power Pty Ltd (twelfth applicant)
contravened s 417(1) of the FW Act in respect of each day on which they took industrial action on 22, 23, 25, 27, 28, 29 and 30 January 2010, as specified in the table annexed to the original orders made herewith, having been attached to the Applicants’ and Intervener’s Minute of Proposed Orders in relation to Liability and Directions in Relation to the Hearing on Remedy dated 20 September 2011 entitled ‘Final summary of respondent numbers and representation’.
5.Respondents 865 and 871 (who were employed by the sixth applicant) contravened s 417 of the FW Act in respect of each day on which they took industrial action on 22, 23, 25, 27, 28, 29 and 30 January 2010, as specified in the table annexed to the original orders made herewith, having been attached to the Applicants’ and Intervener’s Minute of Proposed Orders in relation to Liability and Directions in Relation to the Hearing on Remedy dated 20 September 2011 entitled ‘Final summary of respondent numbers and representation’.
6.The respondents who were members of the Construction Forestry Mining & Energy Union (CFMEU), Communications Electrical & Plumbing Union (CEPU) or the Australian Manufacturing Workers Union (AMWU) (other than respondents employed by the thirteenth applicant) as at 23 January 2010 and during the term of the order made by Commissioner Cloghan of Fair Work Australia on 23 January 2010 contravened s 421(1) of the FW Act in respect of each day on which they took industrial action on 25, 27, 28, 29 and 30 January 2010, as specified in the table annexed to the original orders made herewith, having been attached to the Applicants’ and Intervener’s Minute of Proposed Orders in relation to Liability and Directions in Relation to the Hearing on Remedy dated 20 September 2011 entitled ‘Final summary of respondent numbers and representation’.
7.All of the respondents contravened s 38 of the BCII Act (except for Respondents 817 and 825) in respect of each day on which they took industrial action on 22, 23, 25, 27, 28, 29 and 30 January 2010, as specified in the table annexed to the original orders made herewith, having been attached to the Applicants’ and Intervener’s Minute of Proposed Orders in relation to Liability and Directions in Relation to the Hearing on Remedy dated 20 September 2011 entitled ‘Final summary of respondent numbers and representation’.
THE COURT FURTHER ORDERS THAT:
Directions as to hearing on remedy
8.The matter be listed for further hearing in relation to remedy on 13-16 December 2011, commencing at 10:15am on 13 December 2011.
9.The intervener to:
(a)give notice of its intention to rely upon any parts of any affidavits which have already been filed; and
(b)file and serve any additional affidavits on which it intends to rely
at the hearing on remedy together with an outline of contentions on remedy, by 4:00 pm on 25 October 2011.
10.The non-appearing respondents to file and serve any affidavits on which they intend to rely at the hearing on remedy, together with any outline of contentions on remedy, by 4:00 pm on 8 November 2011.
11.The represented respondents and the applicants to:
(a)give notice of their intention to rely upon any parts of any affidavits which have already been filed; and
(b)file and serve any additional affidavits on which they intend to rely
at the hearing on remedy, together with an outline of contentions on remedy, by 4:00 pm on 22 November 2011.
12.Each party to give notice of its intention to cross examine the deponent of any affidavit to be relied upon by another party at the hearing on remedy by 4:00 pm on 28 November 2011.
13.The parties to file any agreed statement of facts in relation to remedy by 4:00 pm on 28 November 2011.
14.The matter be listed for directions at 10:00 am on 29 November 2011.
15.Liberty to apply on 3 days’ notice.
The Court notes that the applicants will notify the non-appearing respondents of (a) the Court's decision as to liability, (b) the fact that the matter is set down for a hearing in relation to remedy on 13-16 December 2011, and (c) the directions made in relation to the hearing on remedy, by (i) sending a notice in the form annexed and marked ‘A’ to these orders to the last known address of each of the non-appearing respondents, and (ii) affixing a copy of the notice to the noticeboard(s) usually used for the purpose of communication with the respondents at the workplace on the Pluto LNG Project.
Annexure A
FEDERAL COURT OF AUSTRALIA
WAD 14 of 2010
Important Notice to Respondents
Name and Address of Respondent
Findings made as to liability
1.The Federal Court of Australia has determined that you have contravened s 417 of the Fair Work Act 2009 (Cth) and/or s 38 of the Building and Construction Industry Improvement Act 2005 (Cth) in relation to industrial action taken in the period from 22 to 30 January 2010 on the Pluto LNG Project.
2.The Court has listed the matter for hearing on 13 - 16 December 2011 (commencing at 10:15 am on 13 December 2011) in relation to any remedy it may impose in respect of your contraventions of the Fair Work Act 2009 and/or the Building and Construction Industry Improvement Act 2005.
3.Directions have been made in relation to the hearing on 13 - 16 December 2011 in accordance with paragraphs 8 - 15 of the attached document.
4.If you would like to participate in the hearing on 13 - 16 December 2011 in relation to remedy, you must file a notice of appearance in the Federal Court of Australia and comply with the directions set out in paragraphs 8 - 15 of the attached document.
5.If you enter an appearance in these proceedings, you are entitled to be sent by post a copy of the Court's decision on liability without charge upon written request being made for the same to the applicants' solicitors, Freehills, by any one of the following means:
Postal Address: Freehills DX 361 Sydney (Attention: Emma Krasenstein)
Facsimile: Freehills 02 9322 4000 (Attention: Emma Krasenstein)
E-mail: [email protected]
6.If you do not enter an appearance in these proceedings and take steps to participate in the hearing on remedy on 13 - 16 December 2011, the Federal Court of Australia may order that you pay a penalty and that a permanent injunction be imposed upon you to prevent you taking any unlawful industrial action.
Freehills
Solicitors for the Applicants
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
FAIR WORK DIVISION
WAD 14 of 2010
BETWEEN: UNITED GROUP RESOURCES PTY LTD ABN 17 114 888 201
First ApplicantAGC INDUSTRIES PTY LTD ABN 57 079 939 898
Second ApplicantMODERN ACCESS SERVICES PTY LTD ABN 87 129 312 590
Third ApplicantDOWNER EDI ENGINEERING POWER PTY LTD ABN 53 000 983 700
Fourth ApplicantMONADELPHOUS ENGINEERING ASSOCIATES PTY LTD ABN 52 008 861 836
Fifth ApplicantCBI CONSTRUCTORS PTY LTD ABN 90 000 612 411
Sixth ApplicantDECMIL AUSTRALIA PTY LTD ABN 58 116 776 991
Seventh ApplicantFREO GROUP LIMITED ABN 64 009 325 124
Eighth ApplicantMAMMOET AUSTRALIA PTY LTD ABN 77 075 483 644
Ninth ApplicantPCH GROUP LTD ABN 41 009 120 021
Tenth ApplicantRCR CONSTRUCTION & MAINTENANCE PTY LTD ABN 97 063 053 814
Eleventh ApplicantRCR POSITRON PTY LTD ABN 38 106 084 879
Twelfth ApplicantJOHN HOLLAND PTY LTD ABN 11 004 282 268
Thirteenth ApplicantAND: BRAEDEN CALABRO AND OTHERS LISTED IN THE RESPONDENTS' SCHEDULE A AS AMENDED
RespondentsAND: THE AUSTRALIAN BUILDING AND CONSTRUCTION COMMISSIONER
Intervener
JUDGE:
MCKERRACHER J
DATE:
8 DECEMBER 2011
PLACE:
PERTH
REASONS FOR JUDGMENT
OVERVIEW........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ...
[1]
EARLIER EVENTS........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .......
[13]
APPLICABLE STATUTORY PROVISIONS........ ........ ........ ........ ........ ........ ........ ......
[23]
THE REPRESENTED RESPONDENTS........ ........ ........ ........ ........ ........ ........ ........ .....
[24]
Admissions made by represented respondents........ ........ ........ ........ ........ ........ ........ .
[24]
Agreement reached with applicants on liability and remedy by represented respondents........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .
[26]
Conclusion in relation to liability of the represented respondents........ ........ ........ ...
[35]
THE UNREPRESENTED RESPONDENTS........ ........ ........ ........ ........ ........ ........ .......
[36]
Non-appearance by unrepresented respondents........ ........ ........ ........ ........ ........ ......
[36]
Proof of service affidavits........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .......
[36]
The approach taken in relation to proving the case against the unrepresented respondents........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .....
[41]
The evidentiary case against the unrepresented respondents........ ........ ........ ........ .
[48]
Section 417 claim........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ...
[50]
Transitional provisions........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ..
[53]
The applicants' in-term agreements........ ........ ........ ........ ........ ........ ........ ........ ......
[56]
Consideration of liability of the unrepresented respondents........ ........ ........ ........ ....
[64]
Reliance on inference – the principles........ ........ ........ ........ ........ ........ ........ ........ ..
[70]
The primary facts........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ....
[77]
21 January 2010........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .
[90]
22 January 2010........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .
[91]
24 January 2010........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .
[102]
27 January 2010........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .
[103]
The claims made on 27 January 2010........ ........ ........ ........ ........ ........ ........ .....
[104]
The inferences available from the primary facts........ ........ ........ ........ ........ ........ ...
[106]
Admissions made by the agents of some of the unrepresented respondents........
[108]
The operation of para (a) of the IM definition........ ........ ........ ........ ........ ........ ......
[116]
The operation of para (d) of the IM definition........ ........ ........ ........ ........ ........ ......
[123]
DECLARATORY RELIEF........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ....
[139]
REMEDIES AND PENALTY FOR ALL RESPONDENTS........ ........ ........ ........ .......
[143]
CONCLUSION........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .......
[144]
OVERVIEW
These are reasons for judgment given on 30 September 2011 as to liability of a large number of respondents (1338) in respect of industrial action. 722 of the respondents were represented by counsel at trial. I have addressed the position of those represented respondents first. I have then dealt with the other respondents (616) who have not entered an appearance and have not been represented in any respect or taken any active part in the proceedings as at 30 September 2011 (unrepresented respondents).
It is desirable first to set the scene for the events considered in these reasons.
Woodside Burrup Pty Ltd (WBPL) has been constructing a liquefied natural gas (LNG) processing plant since about July 2007 at the Burrup Peninsula, Western Australia (the Project). It is one of many projects of great value in that general region where many people are employed. On completion of the Project, gas will be processed from the Pluto and Xena gas fields which were discovered in 2005. Those gas fields are located in the Carnarvon Basin about 190 kilometres north-west of the large coastal town of Karratha in Western Australia. In order to facilitate that major Project, WBPL engaged a number of contractors. Several of those contractors are the applicants to these proceedings. The respondents were employed by various applicants to work on the Project in the period from 22 to 30 January 2010 (as well as other times).
The performance of the construction work on the Project, at the relevant period, was supervised by another company, Foster Wheeler WorleyParsons (FWWP).
In the period from 22 to 30 January 2010, the applicants contend that all respondents engaged in ‘unprotected industrial action’ as that technical expression is used in the manner discussed below.
The intervener is the Australian Building and Construction Commissioner (ABCC).
Together, the applicants and the ABCC contend that there have been three types of contraventions. First, they argue that the respondents who were covered by an interim enterprise agreement at the time of the industrial action contravened s 417(1) of the Fair Work Act 2009 (Cth) (FW Act) (this has been described as the s 417 claim).
The applicants and the ABCC also contend the respondents who are members of three unions, the Construction Forestry Mining & Energy Union (CFMEU), Communications Electrical & Plumbing Union (CEPU) or the Australian Manufacturing Workers Union (AMWU), during the term of the order made by Commissioner Cloghan of Fair Work Australia (FWA) on 23 January 2010 contravened s 421(1) of the FW Act (this has been described as the s 421 claim).
Further, it is argued that all respondents contravened s 38 of the Building and Construction Industry Improvement Act 2005 (Cth) (BCII Act) (this has been described as the BCII Act claim).
In order to determine the questions of liability only, (rather than remedy), the trial in this proceeding was listed for hearing over several weeks commencing in September 2011. On the first day of the hearing, liability was admitted by a significant group of represented respondents. Later, but also on the first day of the hearing, liability was admitted by another group of represented respondents. At the end of the first week of the hearing, liability was admitted by the remaining group of represented respondents. The details of those groupings and the terms of admission of liability and penalty are discussed below.
Following agreement by those groups of respondents, it was necessary for the applicants to prove their case against the unrepresented respondents. For reasons discussed below, I was satisfied that the trial should proceed against the unrepresented respondents. The trial continued therefore, after the first week. As a result, I was also satisfied that liability of the unrepresented respondents was also established.
Judgment was given and the unrepresented respondents were to be directly informed as to establishment of liability against them and that they had the opportunity, should they choose to exercise it, to make any submissions concerning remedy, including penalty. Those respondents were also informed of the agreement as to penalty made between the applicants and the represented respondents.
EARLIER EVENTS
The nature and root of the dispute has been recounted in a number of previous decisions including United Group Resources Pty Ltd v Calabro (2010) 192 IR 153 (United No 1), United Group Resources Pty Ltd ABN 17 114 888 201 v Calabro (No 2) (2010) 192 IR 160 (United No 2), United Group Resources Pty Ltd ABN 17 114 888 201 v Calabro (No 3) (2010) 192 IR 170 (United No 3) and United Group Resources Pty Ltd v Calabro (No 4) [2010] FCA 791 (United No 4). For convenience I will recapitulate part of the narrative found in those decisions.
On about 27 November 2009, employees at the Project were advised that effective from 4 January 2010 all accommodation at Gap Ridge Village would be managed on a ‘Motelling’ basis (the Accommodation Changes). The substance of this change was that while each employee would continue to be offered the same nature and quality of accommodation, while employed, there could be no guarantee that each employee would be able to return to the same unit previously occupied after taking and returning from regular fly in, fly out leave. The Accommodation Changes resulted from an acute shortage of accommodation on the Project. The changes were made at Project level, that is, the decision affected all of the contractors who used the Gap Ridge Village accommodation.
On 1 December 2009 and 2 December 2009, almost all of the employees on the Project who were rostered to work failed to present for work in apparent protest against the Accommodation Changes (the December 2009 industrial action). On 2 December 2009, orders were made in respect of the December 2009 industrial action by Deputy President McCarthy of FWA that the employees of the first applicant were to return to work. Those orders remained in force until 18 January 2010.
On 21 January 2010, further information was provided to the workers by FWWP on the Accommodation Changes. On 22 January 2010 as well as 23 January 2010, almost all of the employees in the Project who were rostered to work failed to present for work in protest over the Accommodation Changes (the January 2010 industrial action).
Orders were made on 23 January 2010 (effective from midnight on 24 January 2010) in respect of the January 2010 industrial action by Commissioner Cloghan of FWA. The employees of the applicants (other than the thirteenth applicant) who were union members were ordered to return to work. Those orders were to remain in force until 28 February 2010.
Once again, on 25 January 2010, almost all of the employees on the Project who were rostered to work failed to present for work in protest over the Accommodation Changes. On 26 January 2010 there was scheduled work to be performed even though it was a public holiday. Once again, most employees who were required to work failed to present for work. On that day the local union organisers for the Project were contacted and advised of an urgent application brought to this Court. The unions were also requested to inform their members of the applicants’ intention to seek urgent injunctive relief. The unions requested that they be kept informed but did not wish to be heard on the application.
On the following day, 27 January 2010, employees on the Project held a meeting in the car park at the Project site at 6.30 am and resolved to continue to take industrial action until, at least, 30 January 2010. On 27 January 2010, almost all of the employees who were rostered to work failed to present for work.
The Project is very substantial. At the time of giving evidence in support of an application for urgent injunctive relief, on 27 January 2010, Mr Colin Raymond Milne, an industrial relations consultant, estimated that the total daily losses to the applicants, FWWP and WBPL to be in the excess of $500,000. The source and nature of the damage was described in detail in United No 1.
As might be expected, as at 27 January 2010, the situation in and around the Project environs was inflammatory. In particular, representatives of the applicants believed that the situation in and around the accommodation camps, particularly at Gap Ridge Village, was volatile and could easily become violent. They believed that threats had been made against employees who were not participating in the industrial action. This led to FWWP significantly increasing the level of security personnel on site and around the accommodation.
There were over 1500 employees involved in the industrial action. Many of them have been joined as respondents to this proceeding. Some have been deleted, having been incorrectly joined. As will be discussed in more detail below, injunctive relief requiring the respondents to return to work was granted on 27 January 2010.
APPLICABLE STATUTORY PROVISIONS
The primary sections of the relevant industrial legislation have been identified above and, in the context of this dispute, discussed briefly in the earlier judgments. For convenience, however, the relevant parts of the key sections (and related sections) are now set out once again, (I note that the discussion of the legislation below extends beyond these central provisions):
FW Act:
417Industrial 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 FWA 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.
Injunctions and other orders
(3)If a person contravenes subsection (1), the Federal Court or Federal Magistrates Court may do either or both of the following:
(a)grant an injunction under this subsection;
(b)make any other order under subsection 545(1);
that the court considers necessary to stop, or remedy the effects of, the contravention.
…
418FWA must order that industrial action by employees or employers stop etc.
(1)If it appears to FWA that industrial action by one or more employees or employers that is not, or would not be, protected industrial action:
(a)is happening; or
(b)is threatened, impending or probable; or
(c)is being organised;
FWA must make an order that the industrial action stop, not occur or not be organised (as the case may be) for a period (the stop period) specified in the order.
…
421 Contravening an order etc.
Contravening orders
(1)A person to whom an order under section 418, 419 or 420 applies must not contravene a term of the order.
(2)However, a person is not required to comply with an order if:
(a)the order is an order under section 418, or an order under section 420 that relates to an application for an order under section 418; and
(b)the industrial action to which the order relates is, or would be, protected industrial action.
Injunctions
(3)The Federal Court or Federal Magistrates Court may grant an injunction, under this subsection, on such terms as the court considers appropriate if:
(a)a person referred to in column 2 of item 15 of the table in subsection 539(2) has applied for the injunction; and
(b)the court is satisfied that another person to whom the order applies has contravened, or proposes to contravene, a term of the order.
…
BCII Act:
36 Definitions
(1) In this Chapter, unless the contrary intention appears:
building industrial action means:
(a)the performance of building work in a manner different from that in which it is customarily performed, or the adoption of a practice in relation to building work, the result of which is a restriction or limitation on, or a delay in, the performance of the work, where:
(i)the terms and conditions of the work are prescribed, wholly or partly, by an industrial instrument or an order of an industrial body; or
(ii)the work is performed, or the practice is adopted, in connection with an industrial dispute (within the meaning of subsection (4)); or
(b)a ban, limitation or restriction on the performance of building work, or on acceptance of or offering for building work, in accordance with the terms and conditions prescribed by an industrial instrument or by an order of an industrial body; or
(c)a ban, limitation or restriction on the performance of building work, or on acceptance of or offering for building work, that is adopted in connection with an industrial dispute (within the meaning of subsection (4)); or
(d)a failure or refusal by persons to attend for building work or a failure or refusal to perform any work at all by persons who attend for building work;
but does not include:
(e)action by employees that is authorised or agreed to, in advance and in writing, by the employer of the employees; or
(f)action by an employer that is authorised or agreed to, in advance and in writing, by or on behalf of employees of the employer; or
(g)action by an employee if:
(i)the action was based on a reasonable concern by the employee about an imminent risk to his or her health or safety; and
(ii)the employee did not unreasonably fail to comply with a direction of his or her employer to perform other available work, whether at the same or another workplace, that was safe for the employee to perform.
constitutionally-connected action means building industrial action that satisfies at least one of the following conditions:
(a)the action is taken by an organisation;
(b)the action is taken by a constitutional corporation, or adversely affects a constitutional corporation in its capacity as a building industry participant;
(d)the action relates to work that is regulated by a Commonwealth industrial instrument;
(e)the action relates to the bargaining or proposed bargaining for, or the making or proposed making of, an enterprise agreement;
(f)the action occurs in a Territory or Commonwealth place.
excluded action means building industrial action that is protected industrial action (as affected by Part 3 of this Chapter).
industrially-motivated means motivated by one or more of the following purposes, or by purposes that include one or more of the following purposes:
(a)supporting or advancing claims against an employer in respect of the employment of employees of that employer;
(b)supporting or advancing claims by an employer in respect of the employment of employees of that employer;
(c)advancing industrial objectives of an industrial association;
(d)disrupting the performance of work.
The employer referred to in paragraphs (a) and (b) need not be the employer whose employees do the work to which the action relates.
(2)Whenever a person seeks to rely on paragraph (g) of the definition of building industrial action in subsection (1), that person has the burden of proving that paragraph (g) applies.
(3) For the purposes of this Chapter:
(a)conduct is capable of constituting building industrial action even if the conduct relates to part only of the duties that persons are required to perform in the course of their employment; and
(b)a reference to building industrial action includes a reference to a course of conduct consisting of a series of building industrial actions.
(4)In the definition of building industrial action in subsection (1):
industrial dispute means:
(a)an industrial dispute (including a threatened, impending or probable industrial dispute) that is about matters pertaining to the relationship between employers and employees; or
(b)a situation that is likely to give rise to an industrial dispute of the kind referred to in paragraph (a); or
(c)a dispute arising between 2 or more industrial associations, or within an industrial association, as to the rights, status or functions of members of the associations or association in relation to the employment of those members; or
(d)a dispute arising between employers and employees, or between members of different industrial associations, as to the demarcation of functions of employees or classes of employees; or
(e)a dispute about the representation of the industrial interests of employees by an industrial association of employees.
37Definition of unlawful industrial action
Building industrial action is unlawful industrial action if:
(a)the action is industrially-motivated; and
(b)the action is constitutionally-connected action; and
(c)the action is not excluded action.
38Unlawful industrial action prohibited
A person must not engage in unlawful industrial action.
71 ABC Commissioner intervention in court proceedings
(1)The ABC Commissioner may intervene in the public interest in a civil proceeding before a court in a matter that:
(a)arises under this Act; or
(b)arises under the Independent Contractors Act 2006, the FW Act or the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 and involves:
(i)a building industry participant; or
(ii)building work.
(2)If the ABC Commissioner intervenes in a proceeding under subsection (1), the ABC Commissioner is taken to be a party to the proceeding and has all the rights, duties and liabilities of such a party.
THE REPRESENTED RESPONDENTS
Admissions made by represented respondents
As outlined, various comprehensive admissions of fact and law were made after commencement of the trial. (Some of the facts had been agreed prior to trial).
The agreement between those parties (with defined terms applicable only to the agreement), was in the following terms:
…
The applicants and the CFMEU Respondents [defined in para 6 of this statement of agreed facts], CEPU Respondents [defined in para 7 of this statement of agreed facts] and AMWU Respondents [defined in para 8 of this statement of agreed facts] (together, the Respondents) … agree as follows:Parties
Applicants
1 During the period 22 to 30 January 2010, each applicant was:
(a)a corporation incorporated under the Corporations Act 2001 (Cth) and to which paragraph 51(xx) of the Australian Constitution applied;
(b)the employer of some of the Respondents;
(c)a “building employer” which employed “building employees” within the meaning of the [BCII Act];
(d)a building sub-contractor engaged by [WBPL] to carry out “building work” within the meaning of the BCII Act, on the project known as the “Pluto LNG Project” or “Pluto LNG Development Project” for the development, production and processing of petroleum, including the construction of a single gas processing train and ancillary facilities between Onslow and the Burrup Peninsula in Western Australia (Project); and
(e)a “building industry participant” within the meaning of the BCII Act.
Respondents
2 During the period 22 to 30 January 2010, each Respondent was:
(a)a “building employee” whose employment consisted of or included “building work” within the meaning of the BCII Act;
(b)employed by one of the applicants to undertake “building work” on the Project;
(c)employed under a Commonwealth industrial instrument, which is or was a workplace agreement pursuant to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) (Transitional Act); [The applicable industrial instruments are set out in para 4 of this statement of agreed facts] and
(d)a “building industry participant” within the meaning of the BCII Act.
Intervener
3The intervener is the [ABCC] appointed under s.15 of the BCII Act who intervenes in the proceeding pursuant to section 71 of that Act.
Industrial context
4During the period 22 to 30 January 2010, the industrial instruments which covered and applied to the applicants and Respondents employed by them were:
(a)United Group Resources Pty Ltd Employee Collective Pluto Project Agreement 2009;
(b)AGC Industries Pty Ltd Employee Collective Pluto Project Agreement 2009;
(c)Modern Access Services Pty Ltd Employee Collective Pluto Project Agreement 2009;
(d)Downer EDI Engineering Power Pty Ltd Employee Collective Pluto Project Agreement 2009;
(e)Monadelphous Engineering Associates Pty Ltd Employee Collective Pluto Project Agreement 2009;
(f)CBI Constructors Pty Ltd Interim Transitional Employment Agreements;
(g)Decmil Australia Pty Ltd Employee Collective Pluto Project Agreement 2009;
(h)Freo Machinery Pluto Project Greenfields Agreement 2008;
(i)Mammoet Australia Pty Ltd Greenfields Agreement 2008;
(j)PCH Group Limited Employee Collective Pluto Project Agreement 2009;
(k)RCR Construction & Maintenance Pluto Project Greenfields Agreement 2008;
(l)Positron Trident Pty Ltd Pluto Project Greenfields Agreement 2009,
(together, the Industrial Instruments).
5 During the period 22 to 30 January 2010, each Respondent employed by:
(a)United Group Resources Pty Ltd (first applicant);
(b)AGC Industries Pty Ltd (second applicant);
(c)MAS Australasia Pty Ltd (third applicant);
(d)Downer EDI Engineering Power Pty Ltd (fourth applicant);
(e)Monadelphous Engineering Associates Pty Ltd (fifth applicant);
(f)Decmil Australia Pty Ltd (seventh applicant);
(g)PCH Group Ltd (tenth applicant); or
(h)RCR Power Pty Ltd (twelfth applicant),
was covered by an “enterprise agreement” for the purposes of section 417 of the [FW Act], each of which is a workplace agreement pursuant to the Transitional Act, and was within its nominal term.
Union membership
6 Each Respondent listed in:
(a)Attachment 1 was a member of the CFMEU during the whole period 23 to 30 January 2010;
(b)Attachment 2 was not a member of the CFMEU during the whole period 23 to 30 January 2010,
(together, the CFMEU Respondents).
7Each Respondent listed in Attachment 3 was a member of the CEPU during the period 27 November 2009 to 28 February 2010 (together, the CEPU Respondents).
8 Each Respondent listed in:
(a)Attachment 4 was a member of the AMWU during the period 27 November 2009 to 28 February 2010; and
(b)Attachment 5 was not a member of the AMWU during the period 27 November 2009 to 28 February 2010,
(together, the AMWU Respondents).
The Project
9The events relevant to the proceeding happened on and in relation to the on-shore component of the Project, which is situated approximately 26 km from Karratha. Exhibits A2 to A5 are photographs which show the location of relevant places within and nearby the Project site.
10The majority owner, operator and manager of the Project is Woodside Burrup, a subsidiary of Woodside Energy Ltd.
11The Project involves, amongst other things, the construction of a single gas processing train and ancillary facilities to process gas from the Pluto and Xena gas fields located in the Carnarvon Basin about 190km north-west of Karratha, Western Australia.
12Work on the Project commenced in around July 2007.
13Since the commencement of work on the Project, Foster Wheeler (WA) Pty Ltd in joint venture with WorleyParsons Pty Ltd, [FWWP], has been the engineering, procurement and construction manager (EPCM) of the Project.
14The overall performance of the building work on the Project is, and since the commencement of the building work on the Project has been, supervised by [FWWP].
15Approximately 3800 workers were employed to work on the Project during the period 22 to 30 January 2010. The 3800 workers referred to in this paragraph included construction and non-construction (staff) employees of the applicants and employees of contractors who are not parties to this proceeding.
Rostering on the Project
16Whilst engaged to work on the Project, the Respondents were required to work pursuant to roster cycles of one of the following configurations:
(a)4 weeks on, 1 week off;
(b)5 weeks on, 1 week off; or
(c)6 [weeks] on, 1 week off.
17During their rostered “on-time”, the Respondents’ ordinary hours of work on the Project were usually worked Monday to Saturday on rostered shifts of 10 hours duration, either on a day shift usually commencing at either 6.00am or 6.30am and finishing at 4.30pm or 5.00pm respectively, or on a night shift usually commencing at 6.30pm and finishing at 4.30am.
Accommodation at the Project
18Many Respondents who perform work on the Project do so on a fly in/fly out basis.
19Whilst each Respondent was engaged to work on the Project, they were accommodated in one of two accommodation villages (Gap Ridge Village and Searipple Village), or in their own local accommodation near the Project.
20Gap Ridge Village is located about 20km from the project site and Searipple Village is located about 30km from the project site.
21Gap Ridge Village contains 2,100 rooms. It is owned by Woodside Burrup and is operated for Woodside Burrup by Sodexho under the management of [FWWP]. Searipple Village is privately owned and operated not by Woodside Burrup.
22Each of the Industrial Instruments contains terms to the following effect (in clause 42 and Appendix 7, clause 6):
“42. Distant Workers
Employees classified as Distant Workers as defined and International Distant Workers as defined shall be entitled to the conditions contained at Appendix 7 – Distant Work Provisions of this Agreement.”
“APPENDIX 7: DISTANT WORK PROVISIONS
(6)The Company shall have the choice of providing each Distant Worker with either suitable board and lodging or paying the Living Away from Home Allowance set out in this Appendix.”
23During the period from 22 to 30 January 2010, many of the Respondents were Distant Workers within the meaning of the Industrial Instruments.
24The Respondents who were accommodated at Gap Ridge Village in the period from 22 to 30 January 2010 did so on terms and conditions of occupancy which were effective from 17 June 2009 and which applied throughout the period 22 January 2010 to 30 January 2010.
25During the period from 22 to 30 January 2010 the Applicants paid the owner or operator of the Gap Ridge Village and the Searipple Village a daily fee for the accommodation of each of their employees in those villages.
Motelling
26Until February 2010, Gap Ridge Village accommodated construction workers in single occupancy en-suite accommodation units. These accommodation units were occupied by construction workers, including some of the Respondents, on a 'dedicated' basis i.e. over the course of their work on the Project for a particular applicant, the Respondent would occupy the same particular accommodation unit during their rostered periods of work.
27At pre-start meetings on 27 November 2009, the applicants’ representatives informed their employees (who were in attendance at those meetings), including many of the Respondents, that, with effect from 4 January 2010, Woodside intended to introduce new accommodation arrangements for employees residing at Gap Ridge Village.
28Under these new arrangements, construction workers who resided at Gap Ridge Village would no longer have use of the same accommodation unit for each period that they were rostered to work. Instead, they would be assigned a new accommodation unit each time they returned to Gap Ridge Village for a rostered period of work (“Accommodation Changes”).
December 2009 dispute
29On 1 and 2 December 2010 many of the then employees including some of the Respondents who were rostered to work failed to present for work. The absence was not authorised or agreed to by the applicants who were their relevant employers.
30On 2 December 2009, Deputy President McCarthy of [FWA] made an order under section 418 of the FW Act requiring employees of the first applicant to return to work. The order was to remain in force until 18 January 2010.
31All construction workers on the Project returned to work on 3 December 2009.
32During the period 3 December 2009 to 21 January 2010, the Respondents attended work as rostered.
33On 21 January 2010, [FWWP] delivered a letter entitled ‘Subject: Acknowledgement Forms and availability of accommodation at Gap Ridge Village’ ([FWWP] Letter) to between 150 and 400 Respondents on the Project who resided at Gap Ridge Village. The [FWWP] Letter concerned the introduction of the Accommodation Changes.
January 2010 dispute
34On 22, 23, 25, 27, 28, 29 and 30 January 2010, each Respondent failed to attend for work on one or more days on which they were rostered to work, for either the whole or part of their rostered shift.
35[The schedule to the orders now made by the Court] set out the days on which each Respondent was rostered to work and whether he or she was absent for the whole or part of their shift. Where a Respondent was absent for up to 4 hours of their rostered shift, he or she has been designated as being absent for half a day. Where a Respondent was absent for 4 hours or more of their rostered shift, he or she has been designated as being absent for a full day.
36In each case, the absence specified in [the schedule to the orders now made by the Court] was not authorised or agreed to by any of the applicants.
37Between 22 January 2010 and 30 January 2010 inclusive, there was no protected action ballot and no notice of intention to take protected industrial action by the Respondents or any relevant union in relation to the work at the Project.
38Each Respondent engaged in:
(a)industrial action within the meaning of s.19 of the FW Act; and
(b)building industrial action within the meaning of s.36(1) of the BCII Act
in respect of each day (or part thereof) on which they were absent from work as specified in [the schedule to the orders now made by the Court].
Fair Work Proceedings
39On 23 January 2010, all applicants and others except the thirteenth applicant applied to [FWA] under section 418 of the FW Act for orders that the Respondents return to work (Application).
40A copy of the Application was served on the CFMEU, the CEPU and the AMWU by email.
41A hearing was held before Commissioner Cloghan of [FWA] on 23 January 2010. The hearing was attended by representatives of the applicants, the intervener, the CFMEU, the CEPU and the AMWU.
42At the conclusion of the hearing on 23 January 2010, Commissioner Cloghan made an interim order under section 420 of the FW Act, known as the Woodside Pluto LNG Project 2009 No. 2 Order (Interim Order).
43The Interim Order was validly made, and was published on the [FWA] website on Monday 25 January 2010 at 1.40pm AWST in accordance with s.601 of the FW Act. Service of the Interim Order was effected in accordance with the requirements of the Interim Order and the FW Act.
44Following the making of the Interim Order, certain Respondents continued to fail to attend for work on one or more days on which they were rostered to work, for either the whole or part of their rostered shift as set out in paragraph 35 of this statement of agreed facts.
Federal Court proceedings
45The applicants commenced this proceeding on 27 January 2010.
46On 27 January 2010, Justice McKerracher granted an interim injunction which was expressed to operate until 5.00 pm on 5 February 2010.
47On 5 February 2010, Justice McKerracher extended the interim injunction until 5.00 pm on 18 February 2010.
48On 18 February 2010, Justice McKerracher further extended the interim injunction until final hearing and determination of the proceeding or further order.
Section 417 FW Act contravention
49 Each Respondent employed by:
(a)United Group Resources Pty Ltd (first applicant);
(b)AGC Industries Pty Ltd (second applicant);
(c)MAS Australasia Pty Ltd (third applicant);
(d)Downer EDI Engineering Power Pty Ltd (fourth applicant);
(e)Monadelphous Engineering Associates Pty Ltd (fifth applicant);
(f)Decmil Australia Pty Ltd (seventh applicant);
(g)PCH Group Ltd (tenth applicant); or
(h)RCR Power Pty Ltd (twelfth applicant)
contravened s.417 of the FW Act in respect of each day on which they took industrial action on 22, 23, 25, 27, 28, 29 and 30 January 2010.
Section 421 FW Act contravention
50Each Respondent (other than those Respondents referred to in Attachments 2 and 5) contravened s.421 of the FW Act in respect of each day on which they took industrial action on 22, 23, 25, 27, 28, 29 and 30 January 2010.
BCII Act contravention
51Each Respondent was motivated by one or more of the following purposes in respect of each day of industrial action taken by them on 22, 23, 25, 27, 28, 29 and 30 January 2010:
(a)supporting or advancing a claim against the applicants, alternatively against the applicant which was the Respondent’s employer at the time, that motelling not be introduced; or
(b)disrupting the performance of work on the Project.
52Accordingly, the industrial action taken by each Respondent on 22, 23, 25, 27, 28, 29 and 30 January 2010 was industrially-motivated action within the meaning of s.37(a) of the BCII Act.
53The industrial action taken by each Respondent on 22, 23, 25, 27, 28, 29 and 30 January 2010:
(a)related to work that was regulated by a Commonwealth industrial instrument; and
(b)adversely affected each of the applicants in their capacity as building industry participants.
54Accordingly, the industrial action taken by each Respondent on 22, 23, 25, 27, 28, 29 and 30 January 2010 was constitutionally-connected action within the meaning of s.36(1) of the BCII Act.
55By reason of the facts and matters set out in paragraph 37 above, the industrial action taken by each Respondent on 22, 23, 25, 27, 28, 29 and 30 January 2010 was not excluded action within the meaning of s.36(1) of the BCII Act.
56Each Respondent contravened s.38 of the BCII Act in respect of each day on which they took industrial action on 22, 23, 25, 27, 28, 29 and 30 January 2010.
57Paragraphs 1 – 37, 39 – 48 and 51 of this statement are tendered pursuant to s.191 of the Evidence Act (Cth).
58Paragraphs 38, 49 – 50 and 52 – 56 of this statement contain admissions by the Respondents, which admissions should be treated as though they were made in a points of defence filed on behalf of the relevant Respondents.
Agreement reached with applicants on liability and remedy by represented respondents
The preceding section sets out matters of agreed fact and agreed legal consequence of those facts. Additionally the represented respondents, at trial, formally admitted liability in relation to the pleaded contraventions and also reached agreement as to penalty and other remedies.
As to remedy, the represented respondents agreed to the Court imposing a permanent injunction, in essentially the same terms as the interlocutory injunction granted on 27 January 2010, operating for 7 years from the date the final injunction is made by the Court. The injunction would apply to any respondent employed or otherwise engaged in or involved in the building work on the Project, the North West Shelf Project or the Browse LNG Project, including construction and operations and any future expansions of those projects. Any such injunction would not prohibit protected industrial action within the meaning of Pt 3-3, Div 2 of the FW Act.
The represented respondents also agreed to submit to the Court for approval a penalty of $1,000 per day of industrial action for BCII Act breaches and $300 per day for FW Act breaches, fully suspended for a period of 7 years.
It was a term of the agreement between the applicants and the represented respondents that the applicants release the represented respondents for their claim in damages.
The CFMEU itself or the AMWU itself or the CEPU itself, without admission of liability, offered an undertaking to the applicants to not be involved in or engaged in industrial action for a period of 7 years on the North West Shelf or Browse LNG Projects. Again, such undertaking would not prohibit protected industrial action within the meaning of Pt 3-3, Div 2 of the FW Act.
The applicants also agreed to release the CFMEU, AMWU and the CEPU in their own right with respect to any actions or cross-claims pursuant to the BCII Act and the FW Act with respect to the industrial action which occurred on the following days (inclusive):
·1 and 2 December 2009; and
·22-30 January 2010.
The parties were to each bear their own costs.
As indicated, that agreement was between the applicants and the represented respondents. It was not an agreement between the intervener and those respondents but as the intervener points out, insofar as the admissions are concerned, the admissions made publically in court constitute admissions for all purposes.
The parties, through counsel, have all expressly acknowledged, and I will say more on this, that the remedy and, in particular, the terms of any penalty is a matter for the Court to determine. However, the agreement is intended to be indicative as to the appropriate penalty as agreed between the applicants and the represented respondents.
Conclusion in relation to liability of the represented respondents
There is little more to say given the comprehensive ultimate acceptance of liability by the represented respondents. There will remain questions as to whether it is presently appropriate to make a declaration and there will be future questions as to whether or not the agreed remedy and penalty, as between the applicants and the represented respondents, should be, in effect, endorsed and sanctioned by the Court. That is a matter on which there will be future evidence and argument. I will deal below, jointly, in connection with both the represented respondents and the unrepresented respondents, the question of whether it is appropriate now to make declarations.
THE UNREPRESENTED RESPONDENTS
Non-appearance by unrepresented respondents
Proof of service affidavits
On 26 October 2010, an order was made for substituted service of:
(a)the application filed by the applicants;
(b)the affidavits filed in support of the application;
(c)the interlocutory injunction granted on 18 February 2010; and
(d)the notice of the mediation to be held before Chief Commissioner Beech on 24 and 25 November 2010,
on the unrepresented respondents.
In order to prove that the unrepresented respondents were served in accordance with the order for substituted service, the applicants read the following affidavits, which were included in the agreed trial bundle:
(a)affidavit of M/s Sandy Kathryn Palmer made on 2 November 2010;
(b)affidavit of M/s Nicola Celenza made on 5 November 2010;
(c)affidavit of M/s Rachel Ann Boybay made on 5 November 2010;
(d)affidavit of M/s Leanne Marie Williams made on 8 November 2010;
(e)affidavit of M/s Kyra Leigh Hall made on 9 November 2010;
(f)affidavit of Mr Daniel Michael Flight made on 9 November 2010;
(g)affidavit of Mr Tyler Matthew Counsel made on 11 November 2010;
(h)affidavit of M/s Keira Kathleen Boskoff made on 13 November 2010;
(i)affidavit of M/s Jessica Lauren Mahony made on 16 November 2010;
(j)affidavit of Ani Rowell made on 30 November 2010;
(k)affidavit of Mr Nigel Edward Baston made on 30 November 2010;
(l)affidavit of M/s Penny Arnold made on 2 December 2010;
(m)affidavit of M/s Carly Patricia Faulkner made on 2 December 2010;
(n)affidavit of M/s Laura Jane Gregson made on 2 December 2010;
(o)affidavit of M/s Daniela Jayne Chalker made on 2 December 2010; and
(p)affidavit of Mr Dennis Somas Nicholas made on 8 December 2010.
The service affidavits set out above established that all the unrepresented respondents were served with a notice, a copy of which was annexed to the order made on 26 October 2010. The notice informed the unrepresented respondents of the following matters:
(a)the fact that they were a respondent to Federal Court proceedings brought by, amongst others, their employer;
(b)the nature of the claims being made by the applicants;
(c)if they did not enter an appearance in the proceedings and take steps to defend them, the Court could order that they pay the applicants a penalty and that a permanent injunction may be imposed on them to prevent them from taking any unlawful industrial action;
(d)if they entered an appearance in the proceedings, they would be entitled to be sent by post a disk containing the affidavits filed by the applicants;
(e)the terms of the interlocutory injunction made by the Court on 18 February 2010 and the consequences of failing to comply with it (specifically, in this regard, the possible consequences were described as: ‘imprisonment, sequestration of property or other punishment’);
(f)the fact that a mediation was scheduled to take place before Chief Commissioner Beech on 24 and 25 November 2010 at the Western Australian Industrial Relations Commission, Level 18, 111 St Georges Terrace, Perth; and
(g)they were invited to be involved in the mediation and procedural steps to enable them to be so involved.
None of the unrepresented respondents filed a notice of appearance, attended the mediation or attended any directions hearing. As at 30 September 2011, none had taken any step in the proceeding at any time.
The applicants also read the affidavit of M/s Emma Krasenstein affirmed on 14 September 2011 in relation to communications with the unrepresented respondents concerning the proceedings and the claims made against them.
The approach taken in relation to proving the case against the unrepresented respondents
I was satisfied at the commencement of the trial that it was appropriate to make an order pursuant to r 1.04(3) of the Federal Court Rules 2011 (FCR 2011) that the former Federal Court Rules (the former Rules) should apply. I made that order as the parties who had pursued an active interest in the proceeding all favoured doing so, the proceeding had been fashioned with some caution under the provisions of the former Rules and as no prejudice to any party, including the unrepresented respondents, would be occasioned by the application of the former Rules.
As the unrepresented respondents were absent, the applicants applied to the Court for an order pursuant to O 32 r 2(1)(d) of the former Rules that the hearing proceed generally.
In my view, an order for the hearing to proceed generally was appropriate in circumstances where the unrepresented respondents had been on notice since October or November 2010 of the proceedings against them, and the consequence of failing to take any step in the proceedings had been explained to them. The unrepresented respondents, in effect, should be regarded as having waived their rights (Hadgkiss v Aldin (No 2) (2007) 169 IR 76 (at [13])).
In circumstances where the Court determines to proceed with the trial generally pursuant to O 32 r 2(1)(d) of the former Rules, the authorities suggest that:
(a)the Court must investigate the merits of the matter (A184 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 210 ALR 543 (at [89]));
(b)the applicants must prove their case on the balance of probabilities in the usual way (TVBO Production Ltd v Australia Sky Net Pty Ltd (2009) 82 IPR 502 (at [15]));
(c)the Court should generally restrict the relief to that claimed (AA Shi Pty Ltd v Avbar Pty Ltd (No 5) [2010] FCA 971 (at [12]));
(d)the Court may allow evidence to be tendered and affidavits to be read on behalf of the party which is present (Scoway Pty Ltd v Faxon Pty Ltd [2004] FCA 249 (at [7]-[9]); and AA Shi Pty Ltd (at [12])); and
(e)the Court is entitled to assume the correctness of the facts claimed by the applicants in their submissions, where there is uncontroverted evidence tendered by the applicants in support of those submissions (AA Shi Pty Ltd (at [13])).
Recently the authorities were reviewed in Bufalo v Official Trustee in Bankruptcy [2011] FCAFC 111, where the Full Court (Mansfield, Besanko and Flick JJ) said (at [25]‑[29] and [51]):
25 The former Federal Court Rules provided in Order 32 r 2 for those circumstances in which a “party is absent”. That rule provided as follows:
Absence of party
(1)If, when a proceeding is called on for trial, any party is absent, the Court may:
(a)order that the trial be not had unless the proceeding is again set down for trial, or unless such other steps are taken as the Court may direct;
(b)adjourn the trial;
(c)if the party absent is an applicant or cross‑claimant dismiss the action or the cross‑claim; or
(d)proceed with the trial generally or so far as concerns any claim for relief in the proceeding.
(2)Where the Court proceeds with a trial in the absence of a party, and at or at the conclusion of the trial an order is made, the Court may set aside or vary the order, and may give directions for the further conduct of the proceeding.
(3)Subrule (2) does not enable the Court to vary the verdict, finding or assessment of a jury at a trial except with the consent of each interested party present at the trial.
These Rules also contained in Order 52 r 38A a comparable power where a “party is absent when an appeal is called on for hearing …”. The comparable provisions are now to be found in Rule 30.21 and Rule 36.75 of the Federal Court Rules 2011. Those Rules came into force on 1 August 2011.
26. The power conferred by Order 32 r 2(1)(d) to “proceed with the trial generally” requires the Court to investigate the merits of the matter before it: Applicant A184 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1076 at [89] per Lander J; AA Shi Pty Ltd v Avbar Pty Ltd (No 5) [2010] FCA 971 at [12] per Collier J.
27 There is no question that the primary Judge, when proceeding pursuant to Order 32 r 2(1)(d), could permit an amendment to the Amended Application then before him. Power to grant leave to amend was previously to be found in Order 13 r 2 of the now repealed Federal Court Rules. The power conferred upon the primary Judge to “proceed with the trial generally” included an ability to exercise all of the powers conferred by the Rules then in force. Order 13 r 2 did not impose any constraint upon the powers that could be exercised in the absence of a party or any express constraint upon the manner in which those discretionary powers were to be exercised.
28 Nor can any question arise as to the power of the primary Judge to dispense with compliance with Order 14 r 7(1) of the now repealed Rules. That rule required a “party intending to use an affidavit [to] serve it on each other interested party not later than a reasonable time before the occasion for using it arises”. “Reasonableness”, it has been said, “is something that needs to be determined in the context of the factual matrix in which the affidavit comes to be filed”: Different Solutions Pty Ltd v Commissioner, Australian Federal Police [2008] FCA 1571 at [3] per Graham J. The obvious purpose of the rule was to ensure that an opposing party was given a “reasonable” opportunity to form a view as to how to respond. When determining the amount of time that is “reasonable”, consideration would have to be given to such factors as the novelty of the factual issues sought to be raised by the new affidavit; the amount of time necessary to gather such facts as may be necessary to respond to the new affidavit; and the amount of time that would be necessary to prepare such cross-examination as may be appropriate to test the new factual issues being raised. Rule 29.08 of the new Federal Court Rules2011, it may be noted, substitutes for the previous reference to “a reasonable time” a requirement that an affidavit be served “at least 3 days before the occasion for using it arises”.
29 But Order 1 r 8 of the now repealed Federal Court Rules conferred a general power upon the Court to dispense with compliance with any of the Rules. In Scoway Pty Ltd v Faxon Pty Ltd [2004] FCA 249, Hely J was there also dealing with a proceeding pursuant to Order 32 r 2(1)(d) and in doing so observed:
[7]It is not entirely clear whether an applicant who seeks to proceed with the trial against absent respondents under Order 32 r 2(1)(d) of the Federal Court Rules is required to provide proof of service of the affidavits on the absent respondents. Order 14 r 7 suggests that this may be so. I gave leave, pursuant to O 1 r 8 to the applicant to rely upon the affidavits which it has read against the first and second respondents, even though those affidavits may not have been served upon those respondents.
[8]A factor which influenced me in granting that leave is that all respondents were notified by the prescribed form of application that if they or their legal representatives did not attend Court on the relevant date (3 February 2003) the application could be dealt with and judgment could be given, or an order made in their absence. On that date I gave directions for the filing of a defence by the respondents with which neither the first nor the second respondent has complied.
In Different Solutions, Graham J allowed parts of an affidavit that was filed on the morning of the hearing to be read. See also: Australian Competition and Consumer Commission v D M Faulkner Pty Limited [2004] FCA 1666 at [327] per Bennett J. The power to dispense “with compliance with any of these Rules” is now to be found in Rule 1.34 of the Federal Court Rules2011. When determining whether to dispense with compliance with the requirement now imposed by Rule 29.08 to serve an affidavit “at least 3 days before the occasion for using it arises”, presumably consideration will now have to be given to why there should be dispensation from not complying with a period of time now fixed by the Rules and itself considered to be a “reasonable” period of advance notice, together with such other factors as were previously considered relevant to the exercise of the like discretion to dispense with the prior requirement imposed by Order 14 r 7.
…51 That which is required by the rules of natural justice or procedural fairness is that a party be given an opportunity to be heard; the rules do not impose any obligation to ensure that a party takes the best advantage of that opportunity: Sullivan v Department of Transport (1978) 20 ALR 323. Albeit in the context of addressing s 39 of the Administrative Appeals Tribunal Act 1975 (Cth), Deane J (when a member of this Court) said:
The failure of a tribunal which is under a duty to act judicially to adjourn a matter may, conceivably, constitute a failure to allow a party the opportunity of properly presenting his case even though the party in question has not expressly sought an adjournment (see Priddle v Fisher & Sons [1968] 1 WLR 1478; [1968] 3 All ER 506). In this regard, however, it is important to remember that the relevant duty of the Tribunal is to ensure that a party is given a reasonable opportunity to present his case. Neither the Act nor the common law imposes upon the Tribunal the impossible task of ensuring that a party takes the best advantage of the opportunity to which he is entitled.
Smithers and Fisher JJ agreed. Similar observations have also been made in Secretary, Department of Family and Community Services v Verney [2000] FCA 570 at [45], 60 ALD 737 at 748 per Cooper J; Goodricke v Comcare [2011] FCA 694 at [60]; Kenso Marketing (M) SDN BHD v Chief Executive Officer of Customs [2011] FCAFC 26 at [45] per Keane CJ, Downes and Gordon JJ. See also: Re Association of Architects of Australia; Ex parte Municipal Officers of Australia (1989) 63 ALJR 298 at 305 per Gaudron J.
The applicants have not served the affidavits on which they intend to rely at the trial on the unrepresented respondents. Pursuant to O 7 r 11(1)(a) of the former Rules, the filing of affidavits by the applicants had the effect of service of those affidavits on the unrepresented respondents because:
(a)personal service of an affidavit was not required (O 7 r 11(1), O 14 r 7 and O 7 r 3); and
(b)the unrepresented respondents were in default of appearance (O 7 r 11(1)(a)(i)).
In any event, in similar circumstances in Scoway Pty Ltd (at [7]-[9]), Hely J resolved to dispense with compliance with the requirement under O 14 r 7(1) of the former Rules for service of an affidavit prior to its use. It was appropriate to do so in light of the notice the ‘absent’ respondents had of the proceedings and the consequences of any decision by them not to take part in the proceedings. Accordingly, on this alternative basis, I dispensed with the service requirement in light of the detailed information the unrepresented respondents had received concerning the proceeding.
The evidentiary case against the unrepresented respondents
The applicants' case against the 616 unrepresented respondents who have taken no active part in the proceedings as at 30 September 2011 was made up of:
(a)an affidavit of Mr Colin Raymond Milne sworn 31 May 2011 and his oral evidence;
(b)the photographs identified by Mr Milne in examination-in-chief;
(c)service affidavits, proving that the unrepresented respondents were served in accordance with the order for substituted service made on 26 October 2010;
(d)documents from the trial bundle;
(e)the remainder of the applicants' substantive affidavits; and
(f)time and wages affidavits, which prove that the unrepresented respondents were rostered to work, but failed to work without authorisation, on each of the days specified in a summary which was provided to the Court on 15 September 2011.
After discussing the relevant statutory provisions to which that evidence is directed, I will recount what the evidence relevantly establishes.
Section 417 claim
As noted, s 417 of the FW Act relevantly provides:
(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 FWA 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.
In Australian Industry Group v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (2003) 130 FCR 524 (Emwest), the Full Court (French, von Doussa and Marshall JJ) held that under s 170MN(1) of the Workplace Relations Act 1996 (Cth) (the WR Act) (the predecessor to s 417 of the FW Act) protected industrial action could be taken, prior to a certified agreement passing its nominal expiry date, provided the protected industrial action was taken in relation to claims not already covered by the agreement.
Section 170MN(l) of the WR Act was amended in 2005 following the decision of the Full Court in Emwest. The effect of those amendments (replicated in s 417 of the FW Act) is to prohibit all industrial action, irrespective of its purpose, until the nominal expiry date of an agreement.
Transitional provisions
There is a particular legislative significance attaching to the timing of these events due to a changeover to some of the governing statutory provisions. Item 4 of Sch 13 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Transitional Act) relevantly provides:
(1) The following provisions of the FW Act:
(a)section 417 (which prohibits industrial action before the nominal expiry date of enterprise agreements etc.);
(b)item 14 of the table in subsection 539(2) of the FW Act (which deals with civil remedies);
apply, on and after the WR Act repeal day, in relation to an agreement-based transitional instrument or a Division 2B State employment agreement, in a corresponding way to the way that those provisions apply in relation to an enterprise agreement.
…
(3)For the purposes of subitem (1), the reference in subsection 417(1) of the FW Act to the day on which an enterprise agreement was approved by FWA is taken to be a reference to the day on which the agreement-based transitional instrument or the Division 2B State employment agreement became such an instrument or agreement.
When read together, the effect of s 417 of the FW Act and Item 4 in Sch 13 of the Transitional Act is that employees, who are covered by an agreement-based transitional instrument, must not organise or engage in industrial action during the period between:
(i)the day on which the agreement-based transitional instrument became such an instrument; and
(ii)the nominal expiry date of the agreement-based transitional instrument.
The Transitional Act differentiates between agreement-based transitional instruments, WR Act instruments and transitional instruments as follows:
(a)a WR Act instrument is defined to include an employee collective agreement and a greenfields agreement (sch 3, item 2(2) of the Transitional Act and ss 4, 327 and 330 (Pt 8 Div 2) of the WR Act);
(b)a WR Act instrument that was in operation immediately before the WR Act repeal day (1 July 2009) became a transitional instrument on the WR Act repeal day (sch 3, item 2(3) of the Transitional Act);
(c)each WR Act instrument that becomes a transitional instrument continues in existence in accordance with sch 3 of the Transitional Act from when it becomes a transitional instrument, despite the WR Act repeal (sch 3, item 2(1) of the Transitional Act); and
(d)all transitional instruments that are not award-based transitional instruments are agreement-based transitional instruments (sch 3, item 2(5) of the Transitional Act).
The applicants' in-term agreements
A number of the applicants had in-term agreement-based transitional instruments in the period from 22 to 30 January 2010, being either employee collective agreements or greenfields agreements made in accordance with the WR Act. The following table summarises those agreements:
Applicant Agreement name Commencement date of Agreement Nominal expiry date of Agreement Reference First Applicant United Group Resources Pty Ltd Employee Collective Pluto Project Agreement 2009 25 May 2009 26 May 2014 Exhibit A60
Affidavit of Leanne Marie Williams made on 16 June 2011 – annexure “LMW1”
Trial Book item 31, pages 1368-1480Second Applicant AGC Industries Pty Ltd Employee Collective Pluto Project Agreement 2009 3 September 2009 7 May 2014 Exhibit A39
Affidavit of Timothy Charles Webster made on 30 May 2011 – Annexure “TCW1”
Trial Book item 10, pages 140-214Third Applicant Modern Access Services Pty Ltd Employee Collective Pluto Project Agreement 2009 14 April 2009 20 March 2012 Exhibit A43
Affidavit of Simon MacLeod made on 28 May 2011 – Annexure “SM1”
Trial Book item 14, pages 408-520Fourth Applicant Downer EDI Engineering Power Pty Ltd Employee Collective Pluto Project Agreement 2009 27 July 2009 27 July 2012 Exhibit A45
Affidavit of Daniel Michael Flight made on 31 May 2011 – Annexure “DMF1”
Trial Book item 16, pages 534-612Fifth Applicant Monadelphous Engineering Associates Pty Ltd Employee Collective Pluto Project Agreement 2009 16 September 2009 3 June 2014 Exhibit A59
Affidavit of Brenton George Grantham made on 8 June 2011 – Annexure “BGG1”
Trial Book item 30, pages 1283-1367Sixth Applicant CBI Constructors Pty Ltd Agreement 2009 23 April 2009 15 April 2014 Exhibit A47
Affidavit of Dennis Somas Nicholas made on 31 May 2011 – Annexure “DSN2”
Trial Book item 18, pages 714-824Affidavit of Dennis Somas Nicholas made on 14 September 2011
Seventh Applicant Decmil Australia Pty Ltd Employee Collective Pluto Project Agreement 2009 31 July 2009 September 2014 Exhibit A48
Affidavit of Christopher Mark Ashton made on 31 May 2011 –
Annexure “CMA1”
Trial Book item 19, pages 825-921Tenth Applicant PCH Group Limited Employee Collective Pluto Project Agreement 2009 3 September 2009 14 May 2014 Exhibit A49
Affidavit of Kelly Joyce Luskan made on 31 May 2011 – Annexure “KJL1”
Trial Book item 20, pages 922-990Twelfth Applicant Positron Trident Pty Ltd Pluto Project Greenfields Agreement 2009 31 June 2009 19 March 2010 Exhibit A61
Affidavit of Nigel Peter Upton made on 30 June 2011 –
Annexure “NPU1”
Trial Book item 32, pages 1481-1531
The unrepresented respondents employed by the first, second, third, fourth, fifth, seventh, tenth and twelfth applicants were each, during period from 22 to 30 January 2010, employed pursuant to an agreement-based transitional instrument which was expressed to apply to ‘Employees of the Company employed in the classifications set out in Appendix 2 - Classification Structure of this Agreement and performing work falling within the Application of this Agreement’.
In addition, two of the unrepresented respondents employed by the sixth applicant (being respondents 865 and 871) were each, during the period from 22 to 30 January 2010, employed pursuant to an agreement-based transitional instrument which was expressed to apply to ‘the employees of the Company working in any of the positions/classifications set out in Appendix A performing work in Australia’.
The unrepresented respondents were engaged to work in one or more of the classifications listed in Appendix 2 or Appendix A of the relevant agreement-based transitional instrument.
It follows that each unrepresented respondent in respect of whom the letter ‘Y’ is marked in the column entitled ‘s.417’ in the summary attached to the Applicants’ and Intervener’s Minute of Proposed Orders dated 20 September 2011 entitled ‘Final summary of respondent numbers and representation’ (the URR Summary) was, at the relevant time, ‘covered’ by an agreement-based transitional instrument. The URR Summary has been adopted and replicated in the original orders of the Court made on 30 September 2011.
During the period from 22 to 30 January 2010, each of the relevant agreement-based transitional instruments was within its nominal term, that is, each had become an agreement-based transitional instrument and had not passed its nominal expiry date.
As at 22 January 2010, there was no protected action ballot and no notice of intention to take protected industrial action by the employees of the first, second, third, fourth, fifth, sixth, seventh, tenth and twelfth applicants, or any relevant union, in relation to work at the Pluto LNG Project.
It follows that each unrepresented respondent in the URR Summary who has a 'Y' marked in the column entitled ‘s.417’ contravened s 417 of the FW Act on the days specified in that table by engaging in industrial action during the nominal term of an enterprise agreement.
Consideration of liability of the unrepresented respondents
In s 36(1) of the BCII Act ‘industrially-motivated’ is defined as follows (the IM definition):
Industrially-motivated means motivated by one or more of the following purposes, or by purposes that include one or more of the following purposes:
(a)supporting or advancing claims against an employer in respect of the employment of employees of that employer;
(b)supporting or advancing claims by an employer in respect of the employment of employees of that employer;
(c)advancing industrial objectives of an industrial association;
(d)disrupting the performance of work.
The employer referred to in paragraphs (a) and (b) need not be the employer whose employees do the work to which the action relates.
Proof of industrial motivation (as defined above) against the 616 unrepresented respondents raised particular considerations which may not always be encountered.
In relation to the unrepresented respondents, the applicants argued a case in relation to para (a) of the IM definition and did not, unlike the ABCC, argue in relation to para (d).
The applicants and the ABCC submit that the building industrial action undertaken by each of the unrepresented respondents in January 2010 was unlawful pursuant to s 37(a) of the BCII Act. It was unlawful as it was industrially-motivated, in that it was motivated by a purpose, or by purposes which included the purpose, of:
(a)supporting or advancing claims against an employer in respect of employees of that employer (para (a) of the IM definition), or
(b)disrupting the performance of work (para (d) of the IM definition).
In order to prove the unrepresented respondents’ industrial motivation, the applicants and the ABCC rely on inference, and additionally, in the case of some of the unrepresented respondents, admissions made by their agents.
I am satisfied that the applicants and the ABCC have, in respect of the unrepresented respondents, presented evidence and argument fairly, albeit favourably to their case. No other evidence or argument at all was adduced. As such, I have adopted substantial portions of the submissions of the applicants and the ABCC on this topic without repeated attribution.
Reliance on inference – the principles
It is necessary, first to consider the inferential case.
Proof of any fact on the balance of probabilities can be established by circumstantial evidence (Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262 (at [90])); that is, by proof of primary, or intermediate, facts from which the court infers a further fact (Shepherd v The Queen (1990) 170 CLR 573 (at 579). The primary facts can themselves be the product of inference from other facts.
The applicants and the ABCC submit that in this case, in which the civil standard applies, ‘you need only circumstances raising a more probable inference in favour of what is alleged’ (Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1 (at 5)). A fact may be proved by inference if according to common experience the fact is the more probable inference from the unexplained primary facts (Bradshaw (at 6)). Certainty is never possible, and is not required (Transport Industries Insurance Co Ltd v Longmuir [1997] 1 VR 125 (at 141)); all that is necessary is that ‘circumstances are proved in which it is reasonable to find a balance of probabilities in favour of the conclusion sought’ (Bradshaw (at 5)). For the purpose of considering whether this test is met the Court must ‘consider the accumulation of the evidence’ (Chamberlain v The Queen (No 2) (1984) 153 CLR 521 (at 535)). It is appropriate ‘not only to evaluate each of the factual contentions separately but also to form an appreciation of the overall effect of the whole of the evidence’ (Clay v Clay (1999) 20 WAR 427 (at [55])), by considering ‘the weight which is to be given to the united force of all the circumstances put together’ (Belhaven and Stenton Peerage [1875] 1 App Cas 278 (at 279). The Court may draw an inference from a combination of intermediate facts, even if none of them in isolation would support the inference (Chamberlain (at 536)). It also means that:
[a] true picture is to be derived from an accumulation of detail. The overall effect of the detailed picture can sometimes be best appreciated by standing back and viewing it from a distance, making an informed, considered, qualitative appreciation of the whole. The overall effect of the detail is not necessarily the same as the sum total of the individual details.
(Longmuir (at 141)).
The overall effect can be a product of primary facts that are combined like ‘strands in a cable’ (Seltsam (at [90])).
The applicants and the ABCC submit that one circumstance that requires particular attention in this case is the product of the combination of the following facts:
(a)The motivation of the unrepresented respondents is within their knowledge.
(b)There is no evidence that any of the unrepresented respondents ever asserted before these proceedings commenced that they had an innocent motivation for their failure to work in accordance with their rosters in January 2010. This is so notwithstanding that, if their motivation was not industrial, they had a strong incentive to bring it to their employer’s attention. Their silence on this point inevitably condemned them to lose any right to be paid for the period when they failed to work (see Div 9 of Pt 3.3 of the FW Act and s 42 of the BCII Act).
(c)In the nature of things, it is impossible for the applicants and the ABCC to produce evidence of a ‘non-inferential nature’ of what motivated the unrepresented respondents, other than by admission.
(d)In these proceedings, each of the unrepresented respondents has had an opportunity to deny that they had an industrial motivation, and to give evidence to explain that their motivation was not industrial.
(e)However, none of the unrepresented respondents chose to take that opportunity (as at 20 September 2011). No reason has been given, or otherwise appears in the evidence, why they did not do so.
The applicants and the ABCC contend that this circumstance ‘is properly to be taken into account as a circumstance in favour of drawing the inference’ that the unrepresented respondents had an industrial motivation (Jones v Dunkel (1959) 101 CLR 298 (at 312) and Finance Facilities Pty Ltd v Federal Commissioner of Taxation (1971) 127 CLR 106 (at 119)). The significance of this circumstance lies in the principle that 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 side to have contradicted’ (Blatch v Archer (1774) 98 ER 969 (at 970)).
I accept, as submitted, that the failure of the unrepresented respondents to deny an industrial motivation, or to give an explanation of an alternative innocent motivation, operates in three related ways:
(a)It confirms any inferences that may properly be drawn against the unrepresented respondents (The Insurance Commissioner v Joyce (1948) 77 CLR 39 (at 61)), rendering more probable the inferences against them that are open on the evidence (Jones v Dunkel (at 312), Black v Tung [1953] VLR 629 (at 634)) and makes ‘the inference ... less unsafe than it could otherwise possibly appear’ (May v O’Sullivan (1955) 92 CLR 654 (at 658-659))
(b)The fact that the unrepresented respondents have not denied that they were industrially motivated, or given evidence in support of such a denial, may more readily enable a court to be satisfied that they were so motivated. This may be so even if the weight of the evidence in support of industrial motivation is ‘not great’, and even if only ‘slight evidence explanatory of the circumstances might displace the inferences which may be drawn from it’ (Bradshaw (at 5)). In Parker v Paton (1941) 41 SR (NSW) 237 (at 243) reference was made to ‘comparatively slight evidence’ and in De Gioia v Darling Island Stevedoring & Lighterage Co Ltd (1941) 42 SR (NSW) 1 (at 4) to ‘very slight evidence’.
The failure of the unrepresented respondents to deny or explain facts when to do so was in their exclusive power, ‘gives a colour to the other evidence against [them]’ (Boyle v Wiseman (1855) 156 ER 598 (at 600)), ‘allows increased strength or weight to be given to primary facts favourable to [the applicants and the ABCC] and allows inferences favourable to [the applicants and the ABCC] to be more confidently drawn’ (Longmuir (at 143)).
The primary facts
With these principles in mind, it is necessary to consider both the primary and inferential evidence.
Employees were first told of the introduction of Accommodation Changes on 27 November 2009. Later that day, Mr Peter Hammond, an erection manager with the third applicant (MAS), became aware of disaffection among employees of MAS. Later that day, there was a mass meeting outside Gap Ridge Village, attended by about 600 employees. Nothing is known about the proceedings of this mass meeting, but a reasonable inference is that it was occasioned by the announcement earlier that day in relation to the introduction of the Accommodation Changes.
It has been established to my satisfaction that the Accommodation Changes was an intrinsically ‘emotive issue’, and as such was capable of arousing strong feelings among employees on the Project. Contractors were apprehensive that the Accommodation Changes ‘would not go down well with workers on the site’.
On 30 November 2009, Mr Colin Gibson, an industrial relations consultant engaged by FWWP, met with officials of the CFMEU, AMWU and CEPU. A business record of FWWP notes that, after the officials were advised of the information about the Accommodation Changes that had been given to employees on 27 November 2009, the officials stated: ‘All the unions stressed that the Project workforce was extremely frustrated by this approach and vehemently opposed to it’.
The officials’ statement was not, on its face, confined to members of their unions. Rather, it expressed the position taken generally by the workforce as a whole. That would not be surprising. There is no logical reason why the frustration and vehement opposition that the officials described should be felt only by union members and not by at least some of the unrepresented respondents.
The officials were qualified by experience and well placed by position to ascertain the general position of the whole workforce, including unrepresented respondents.
There is ample support for that inference. For example, at about this time:
(a)unidentified employees of the second applicant (AGC) and the eleventh and twelfth applicants (RCR) told their employer that they were ‘pissed off’ about the Accommodation Changes and the way in which it was to be introduced; and
(b)M/s Nicola Celenza, a warehouse manager with the eighth applicant (Freo), formed the view, on the basis of discussions with employees of Freo, that those employees were ‘very upset’ and ‘disgruntled’ about the prospect of the Accommodation Changes.
A second mass meeting was held outside Gap Ridge Village later on 30 November 2009. The estimates of numbers attending vary between ‘several hundred’, ‘approximately 1000’ and 1200.
A person addressing the meeting was heard to complain that the Accommodation Changes were ‘a breach of [employees’] employment contracts’, and to say ‘[t]hey can’t do this to us.’ He then suggested that ‘a motion to take industrial action’ be proposed and put to the vote. When the motion ‘out the gate for 48’ was proposed and seconded, the speaker said: ‘[T]hen it is done, we are out the gate for 48’.
Attachment 1 to the Statement of Agreed Facts and Law on Liability
Respondent Number
Employer
Respondent name
5 Decmil Australia Pty Ltd CONNOR John 24 AGC Industries Pty Ltd AINSWORTH Michael 26 AGC Industries Pty Ltd ARKEVELD Dirk 31 AGC Industries Pty Ltd BARWISE Richard 33 AGC Industries Pty Ltd BERMINGHAM Simon 35 AGC Industries Pty Ltd BIGLIN Scott 38 AGC Industries Pty Ltd BODY Ross 46 AGC Industries Pty Ltd BROWN Thomas 54 AGC Industries Pty Ltd BYERS Shannon 68 AGC Industries Pty Ltd CLAYBURN Richard 69 AGC Industries Pty Ltd CLIFTON Dane 92 AGC Industries Pty Ltd GARVIE Sean 93 AGC Industries Pty Ltd GAZEY Liam 96 AGC Industries Pty Ltd GIBBS Wayne 99 AGC Industries Pty Ltd GREHAN Paul 102 AGC Industries Pty Ltd HANSFORD Gordon 104 AGC Industries Pty Ltd HARRIS Aiden 105 AGC Industries Pty Ltd HARRIS Jack 114 AGC Industries Pty Ltd JACK John 116 AGC Industries Pty Ltd JAHN Brad 119 AGC Industries Pty Ltd JONES Steven 132 AGC Industries Pty Ltd LEDGER Todd 142 AGC Industries Pty Ltd MAIN Craig 143 AGC Industries Pty Ltd MAMUDI Mudzait 144 AGC Industries Pty Ltd MARQUES Augusto 146 AGC Industries Pty Ltd MARSHALL Roy 158 AGC Industries Pty Ltd MOREIRA Manuel 162 AGC Industries Pty Ltd PAEHUA Charles 166 AGC Industries Pty Ltd PAMVOUXOGOLOU Benjamin 169 AGC Industries Pty Ltd PES James 170 AGC Industries Pty Ltd PES Leslie 174 AGC Industries Pty Ltd PRATLEY Steven 177 AGC Industries Pty Ltd RAMADANI Berat 182 AGC Industries Pty Ltd ROBERTS Ricky 191 AGC Industries Pty Ltd SEWELL John 193 AGC Industries Pty Ltd SKIPINA Aleksandar 194 AGC Industries Pty Ltd SKIPINA Vladimir 204 AGC Industries Pty Ltd SYGUWA Richard 214 AGC Industries Pty Ltd VAN TRAN Khanh 218 AGC Industries Pty Ltd WALKER Trevor 220 AGC Industries Pty Ltd WALSH Bruce 223 AGC Industries Pty Ltd WESTON Steve 225 AGC Industries Pty Ltd WILSON Peter 226 AGC Industries Pty Ltd WOJTCZAK Natasha 227 AGC Industries Pty Ltd YARRAN Ray 228 AGC Industries Pty Ltd YATES Darrell 235 Freo Group Limited CASEY Michael 238 Freo Group Limited COUTTS Andrew 244 Freo Group Limited HENRY Anthony 245 Freo Group Limited HOPPER Catherine 246 Freo Group Limited JOHNS Steven 248 Freo Group Limited LUBRIG Alfred 249 Freo Group Limited MATHISON Warwick 251 Freo Group Limited MITCHELL Euan 252 Freo Group Limited MORGAN Sherman 253 Freo Group Limited NGATAMARIKI Tangi 254 Freo Group Limited NOYES Paul 256 Freo Group Limited PAYNE Graham 258 Freo Group Limited SARDELIC Antony 260 Freo Group Limited SMITH Malcolm 261 Freo Group Limited STEVENSON Carl 262 Freo Group Limited STEPHENSON Keith 267 MAS Australasia Pty Ltd (formerly Modern Access Services Pty Ltd) AUGUST Anthony 270 MAS Australasia Pty Ltd (formerly Modern Access Services Pty Ltd) BLYTHIN Kevin 271 MAS Australasia Pty Ltd (formerly Modern Access Services Pty Ltd) BRINKLEY Kristian 272 MAS Australasia Pty Ltd (formerly Modern Access Services Pty Ltd) BROOKSBY John 274 MAS Australasia Pty Ltd (formerly Modern Access Services Pty Ltd) CAPOLICCHIO Brett 276 MAS Australasia Pty Ltd (formerly Modern Access Services Pty Ltd) COOPER Stephen 277 MAS Australasia Pty Ltd (formerly Modern Access Services Pty Ltd) COOPER Tasman 278 MAS Australasia Pty Ltd (formerly Modern Access Services Pty Ltd) CORNISH Mark 282 MAS Australasia Pty Ltd (formerly Modern Access Services Pty Ltd) FINN Beryl 283 MAS Australasia Pty Ltd (formerly Modern Access Services Pty Ltd) FREEMAN Steven 285 MAS Australasia Pty Ltd (formerly Modern Access Services Pty Ltd) GODREI Pradeep 286 MAS Australasia Pty Ltd (formerly Modern Access Services Pty Ltd) GOODSON Matthew 288 MAS Australasia Pty Ltd (formerly Modern Access Services Pty Ltd) HARTLEY Mark 289 MAS Australasia Pty Ltd (formerly Modern Access Services Pty Ltd) HAYES Karim 292 MAS Australasia Pty Ltd (formerly Modern Access Services Pty Ltd) HOWARD Ben 299 MAS Australasia Pty Ltd (formerly Modern Access Services Pty Ltd) MARSHALL Shane 301 MAS Australasia Pty Ltd (formerly Modern Access Services Pty Ltd) MCNAMARA David 303 MAS Australasia Pty Ltd (formerly Modern Access Services Pty Ltd) MINIFIE Terry 305 MAS Australasia Pty Ltd (formerly Modern Access Services Pty Ltd) MURRAY Mike 307 MAS Australasia Pty Ltd (formerly Modern Access Services Pty Ltd) NUNES Andrew 308 MAS Australasia Pty Ltd (formerly Modern Access Services Pty Ltd) OSBORN Christopher 309 MAS Australasia Pty Ltd (formerly Modern Access Services Pty Ltd) PARKER Troy 310 MAS Australasia Pty Ltd (formerly Modern Access Services Pty Ltd) PEACOCK Michael 311 MAS Australasia Pty Ltd (formerly Modern Access Services Pty Ltd) PETERSON Trevor 315 MAS Australasia Pty Ltd (formerly Modern Access Services Pty Ltd) RATIMA Khimbo 317 MAS Australasia Pty Ltd (formerly Modern Access Services Pty Ltd) REVILL Brent 318 MAS Australasia Pty Ltd (formerly Modern Access Services Pty Ltd) ROBERTS James 328 MAS Australasia Pty Ltd (formerly Modern Access Services Pty Ltd) WELLS Brayden 330 MAS Australasia Pty Ltd (formerly Modern Access Services Pty Ltd) WILLING Mark 335 Mammoet Australia Pty Ltd AUSTIN Grant 337 Mammoet Australia Pty Ltd BALL David 339 Mammoet Australia Pty Ltd BELLESINI Katie 340 Mammoet Australia Pty Ltd BICKLER Adrian 341 Mammoet Australia Pty Ltd BOLTON Lyall 343 Mammoet Australia Pty Ltd COHEN Andrew 345 Mammoet Australia Pty Ltd CRAVEN Matthew 347 Mammoet Australia Pty Ltd DIXON Shayne 351 Mammoet Australia Pty Ltd EMMOTT Rebecca 352 Mammoet Australia Pty Ltd FITZGERALD Warren 353 Mammoet Australia Pty Ltd FLETT Steve 354 Mammoet Australia Pty Ltd FURLONG Katrina 356 Mammoet Australia Pty Ltd GRAY Richard 357 Mammoet Australia Pty Ltd GREENWAY Darryl 358 Mammoet Australia Pty Ltd HARDWICK James 361 Mammoet Australia Pty Ltd HOPKINS Gareth 362 Mammoet Australia Pty Ltd HOW Adrian 364 Mammoet Australia Pty Ltd LANDGREN Mick 365 Mammoet Australia Pty Ltd LYE Warwick 366 Mammoet Australia Pty Ltd McDONALD Ronald 367 Mammoet Australia Pty Ltd McVINISH Rosalee 370 Mammoet Australia Pty Ltd OREILLY Richard 371 Mammoet Australia Pty Ltd OTT Jonathan 372 Mammoet Australia Pty Ltd REED Michael 373 Mammoet Australia Pty Ltd RETTKE Robert 374 Mammoet Australia Pty Ltd RICHARDSON Matthew 376 Mammoet Australia Pty Ltd ROGERS Malcolm 377 Mammoet Australia Pty Ltd ROSS Adam 379 Mammoet Australia Pty Ltd ROWE Raymond 380 Mammoet Australia Pty Ltd SCHWARZ Peter 381 Mammoet Australia Pty Ltd SEYMOUR Ashley 383 Mammoet Australia Pty Ltd TAYLOR John 384 Mammoet Australia Pty Ltd THOMSON Gary 385 Mammoet Australia Pty Ltd WALKER Ken 386 Mammoet Australia Pty Ltd WAUGH Duncan 395 Monadelphous Engineering Associates Pty Ltd ANDERSON Stephen 397 Monadelphous Engineering Associates Pty Ltd ATKINS Daniel 398 Monadelphous Engineering Associates Pty Ltd ATKINSON Khan 399 Monadelphous Engineering Associates Pty Ltd BACHE Guy 407 Monadelphous Engineering Associates Pty Ltd BELL Robert 408 Monadelphous Engineering Associates Pty Ltd BERRIDGE Helen 420 Monadelphous Engineering Associates Pty Ltd CALBALA Deborah 425 Monadelphous Engineering Associates Pty Ltd CARRUTHERS John 426 Monadelphous Engineering Associates Pty Ltd CARTER Chad 433 Monadelphous Engineering Associates Pty Ltd COLEMAN Matthew 438 Monadelphous Engineering Associates Pty Ltd COULTER Jesse 444 Monadelphous Engineering Associates Pty Ltd CURTIS Robert 450 Monadelphous Engineering Associates Pty Ltd DAW Stephen 451 Monadelphous Engineering Associates Pty Ltd DAWES Shane 452 Monadelphous Engineering Associates Pty Ltd DAY Matthew 455 Monadelphous Engineering Associates Pty Ltd DEVINE Scott 459 Monadelphous Engineering Associates Pty Ltd DUNCAN Anthony 461 Monadelphous Engineering Associates Pty Ltd DWYER Regan 468 Monadelphous Engineering Associates Pty Ltd EMSLIE John 476 Monadelphous Engineering Associates Pty Ltd FLAHAVIN Joseph 481 Monadelphous Engineering Associates Pty Ltd FRADL Robert 485 Monadelphous Engineering Associates Pty Ltd GLASS Tyson 487 Monadelphous Engineering Associates Pty Ltd GLYNN Martin 489 Monadelphous Engineering Associates Pty Ltd GOLUB Aleksander 496 Monadelphous Engineering Associates Pty Ltd HAYES Clint 498 Monadelphous Engineering Associates Pty Ltd HEBDEN Garth 504 Monadelphous Engineering Associates Pty Ltd HOPPE Dennis 541 Monadelphous Engineering Associates Pty Ltd LLOYD Martin 545 Monadelphous Engineering Associates Pty Ltd LOWE Darren 551 Monadelphous Engineering Associates Pty Ltd MCDONALD Malcolm 552 Monadelphous Engineering Associates Pty Ltd MCDONALD Cathy (Cate) 555 Monadelphous Engineering Associates Pty Ltd MCLAREN Anne 574 Monadelphous Engineering Associates Pty Ltd ORMEROD Jacqueline 602 Monadelphous Engineering Associates Pty Ltd ROSS Yancy-lee 603 Monadelphous Engineering Associates Pty Ltd RUDOLF Renee 604 Monadelphous Engineering Associates Pty Ltd SANDERS Michael 609 Monadelphous Engineering Associates Pty Ltd SCHOONER Raimona (Joe) 612 Monadelphous Engineering Associates Pty Ltd SEMMENS Jai 616 Monadelphous Engineering Associates Pty Ltd SLOMAN Janet 629 Monadelphous Engineering Associates Pty Ltd TASKER Patricia 640 Monadelphous Engineering Associates Pty Ltd VELLA Jesse 642 Monadelphous Engineering Associates Pty Ltd WATSON Rebecka 645 Monadelphous Engineering Associates Pty Ltd WEIR Kristian 657 Monadelphous Engineering Associates Pty Ltd WRIGHT Colin 686 RCR Power Pty Ltd (formerly RCR Positron Pty Ltd) SHEASBY Robert 693 PCH Group Ltd ATKINS Te 699 PCH Group Ltd COOMBES Michael 704 PCH Group Ltd DIOSAN Radu 709 PCH Group Ltd FINCARYK Oscar 710 PCH Group Ltd FORBES Anthony 711 PCH Group Ltd GABRIEL Iarere (Eddie) 714 PCH Group Ltd GIBBS Jacob 718 PCH Group Ltd HAYES Craig 719 PCH Group Ltd HINAKI Randal 735 PCH Group Ltd MAEA John 738 PCH Group Ltd MANU John 747 PCH Group Ltd MURPHY Wayne 749 PCH Group Ltd ORLOWSKI David 752 PCH Group Ltd PIRIHI Jade 756 PCH Group Ltd REARDON Daniel 758 PCH Group Ltd ROWSELL Jason 759 PCH Group Ltd SHELFORD Angus 762 PCH Group Ltd TEMAARI Ryan 763 PCH Group Ltd TEPOHE Nathan 767 PCH Group Ltd THURSTON Troy 774 PCH Group Ltd DIEHL Armin 786 RCR Resources Pty Ltd (formerly RCR Construction & Maintenance Pty Ltd) LAMB Gregory 793 RCR Resources Pty Ltd (formerly RCR Construction & Maintenance Pty Ltd) TOKI Mitch 828 Downer EDI Engineering Power Pty Ltd PRIMROSE Darren 867 CBI Constructors Pty Ltd BAIL Jason 873 CBI Constructors Pty Ltd BELL Murray 875 CBI Constructors Pty Ltd BOBOS Carl 876 CBI Constructors Pty Ltd BRENNAN Stephen 882 CBI Constructors Pty Ltd CASTRO Dean 903 CBI Constructors Pty Ltd GOODALL Tay 911 CBI Constructors Pty Ltd HUNWICK Phillip 914 CBI Constructors Pty Ltd JOHNSTON Anthony 923 CBI Constructors Pty Ltd LAROSA Agostino 928 CBI Constructors Pty Ltd LUDLAM John 929 CBI Constructors Pty Ltd MABBOTT Bruce 945 CBI Constructors Pty Ltd MINNS Neil 958 CBI Constructors Pty Ltd SANDERS Dean 959 CBI Constructors Pty Ltd SANSOM Gregory 962 CBI Constructors Pty Ltd SHIELD Keith 965 CBI Constructors Pty Ltd STUURSTRAAT Shannan 966 CBI Constructors Pty Ltd SURRIDGE Daniel 971 CBI Constructors Pty Ltd TUKUAFU Finau 975 CBI Constructors Pty Ltd WARNER Paul 979 CBI Constructors Pty Ltd WEIR Mitchell 980 CBI Constructors Pty Ltd WETERE Tirau 981 CBI Constructors Pty Ltd WOLSKI Daniel 999 United Group Resources Pty Ltd BENTON Troy 1004 United Group Resources Pty Ltd BONKE Tommy 1023 United Group Resources Pty Ltd COLEMAN Jye 1053 United Group Resources Pty Ltd FRANKE Michael 1055 United Group Resources Pty Ltd FRINO John 1139 United Group Resources Pty Ltd MITA Kane 1168 United Group Resources Pty Ltd PHYLAND Aaron 1190 United Group Resources Pty Ltd STRAMARE Gary 1196 United Group Resources Pty Ltd THOMPSON Allan 1227 United Group Resources Pty Ltd AMARI Noel 1230 United Group Resources Pty Ltd BAILEY Mark 1232 United Group Resources Pty Ltd BAKER Fred 1233 United Group Resources Pty Ltd BAND Reyon 1234 United Group Resources Pty Ltd BARLOW Antony 1241 United Group Resources Pty Ltd BERNARD John 1245 United Group Resources Pty Ltd BOLTON Ellen 1252 United Group Resources Pty Ltd BURNS Ben 1255 United Group Resources Pty Ltd CALLEY Aaron 1257 United Group Resources Pty Ltd CAMILLERI Les 1260 United Group Resources Pty Ltd CHANT Damien 1265 United Group Resources Pty Ltd COOPER Anthony 1267 United Group Resources Pty Ltd COWLEY Clyde 1269 United Group Resources Pty Ltd CROOK Michael 1282 United Group Resources Pty Ltd DEN RIDDER Wade 1284 United Group Resources Pty Ltd DIMASI Daniele 1302 United Group Resources Pty Ltd GIGLIA Guiseppe 1303 United Group Resources Pty Ltd GILLEN Chris 1307 United Group Resources Pty Ltd GRACE Ian 1310 United Group Resources Pty Ltd GREENE Andrew 1312 United Group Resources Pty Ltd HAAK Mark 1314 United Group Resources Pty Ltd HALKYARD Gabriel 1319 United Group Resources Pty Ltd HARRISON Jarrid 1321 United Group Resources Pty Ltd HAWKINS Jarrad 1329 United Group Resources Pty Ltd HOLDSWORTH Tim 1332 United Group Resources Pty Ltd HORO Karatehana 1333 United Group Resources Pty Ltd HOWAT Kevin 1344 United Group Resources Pty Ltd JEREMIAH Michelle 1346 United Group Resources Pty Ltd JONES Bodhi 1352 United Group Resources Pty Ltd KELLY Paul 1356 United Group Resources Pty Ltd KUKUTAI Tonganu 1357 United Group Resources Pty Ltd LAKE Nathan 1358 United Group Resources Pty Ltd LAWRENCE Daniel 1363 United Group Resources Pty Ltd LOGAN William 1365 United Group Resources Pty Ltd MACDONALD Jason 1367 United Group Resources Pty Ltd MALLOCH-SMITH Callum 1370 United Group Resources Pty Ltd MAXWELL Craig 1372 United Group Resources Pty Ltd MCBRIDE Dean 1375 United Group Resources Pty Ltd MCDONALD Duncan 1380 United Group Resources Pty Ltd McMillan Alan 1384 United Group Resources Pty Ltd MILLER Charles 1385 United Group Resources Pty Ltd MILLINGTON Phillip 1387 United Group Resources Pty Ltd MOREHU Matthew 1393 United Group Resources Pty Ltd NELSON Tim 1394 United Group Resources Pty Ltd NOAKES Justin 1397 United Group Resources Pty Ltd O'BRIEN Ashley 1399 United Group Resources Pty Ltd OUK Mao 1400 United Group Resources Pty Ltd OVENS David 1406 United Group Resources Pty Ltd Pickles Ashley 1408 United Group Resources Pty Ltd PICKLES Ryan 1410 United Group Resources Pty Ltd PRESTON John 1415 United Group Resources Pty Ltd ROBINSON Glen 1416 United Group Resources Pty Ltd ROCHE Paul 1418 United Group Resources Pty Ltd RUIZ Rodrigo 1423 United Group Resources Pty Ltd SIMON Kenneth 1426 United Group Resources Pty Ltd SMITH Hamish 1430 United Group Resources Pty Ltd STEVENS Andrew 1432 United Group Resources Pty Ltd STOLP Selina 1435 United Group Resources Pty Ltd TAYLOR James 1437 United Group Resources Pty Ltd THOMAS Shane 1439 United Group Resources Pty Ltd TODD Paul 1441 United Group Resources Pty Ltd TRUNFIO Joshua 1445 United Group Resources Pty Ltd UEPA Matthew 1446 United Group Resources Pty Ltd URIONA Raul 1448 United Group Resources Pty Ltd VAEGA Andrea 1449 United Group Resources Pty Ltd VAN ARKEL Christopher 1460 United Group Resources Pty Ltd WILLIAMS Rodney 1471 United Group Resources Pty Ltd GARRICK Jarrad Attachment 2 to the Statement of Agreed Facts and Law on Liability
Respondent Number
Employer
Respondent name
21 Decmil Australia Pty Ltd KOHLER Bradley 22 Decmil Australia Pty Ltd SMITH Shannon 44 AGC Industries Pty Ltd BROWN Mark 57 AGC Industries Pty Ltd CAMPION John 62 AGC Industries Pty Ltd CASSIDY Chris 71 AGC Industries Pty Ltd COLEY Keith 74 AGC Industries Pty Ltd COSMOS Maria 173 AGC Industries Pty Ltd POUYE Paul 183 AGC Industries Pty Ltd ROBINSON Brian 205 AGC Industries Pty Ltd TANNER Bradley 208 AGC Industries Pty Ltd THOMAS Gary 216 AGC Industries Pty Ltd VOICAN Jacob 233 Freo Group Limited BRAND Gregory 239 Freo Group Limited DEVINE Robert 241 Freo Group Limited FULLERTON Paul 263 Freo Group Limited STUBING Bradley 265 Freo Group Limited VAUGHAN Michelle 294 MAS Australasia Pty Ltd (formerly Modern Access Services Pty Ltd) JURAS Frank 295 MAS Australasia Pty Ltd (formerly Modern Access Services Pty Ltd) KINO Aaron 304 MAS Australasia Pty Ltd (formerly Modern Access Services Pty Ltd) MORRISON Jon 306 MAS Australasia Pty Ltd (formerly Modern Access Services Pty Ltd) NAMOK Mark 313 MAS Australasia Pty Ltd (formerly Modern Access Services Pty Ltd) PHILLIPS-MITCHELL Gavin 322 MAS Australasia Pty Ltd (formerly Modern Access Services Pty Ltd) SMITH Shayne 326 MAS Australasia Pty Ltd (formerly Modern Access Services Pty Ltd) VAN ROOYEN Kristy 349 Mammoet Australia Pty Ltd DRUMMOND Matthew 359 Mammoet Australia Pty Ltd HARRISON Brian 360 Mammoet Australia Pty Ltd HINES Gregory 363 Mammoet Australia Pty Ltd LAMBERT Harold 388 Mammoet Australia Pty Ltd ZELINSKI Sonya 406 Monadelphous Engineering Associates Pty Ltd BATE Gordon 419 Monadelphous Engineering Associates Pty Ltd CABRILOVSKI George 431 Monadelphous Engineering Associates Pty Ltd CLARKE Tony 495 Monadelphous Engineering Associates Pty Ltd HARRIS Patricia 536 Monadelphous Engineering Associates Pty Ltd LEONARD Troy 547 Monadelphous Engineering Associates Pty Ltd LYONS Brock 553 Monadelphous Engineering Associates Pty Ltd MCFARLANE Craig 563 Monadelphous Engineering Associates Pty Ltd MORRIS Patrick 568 Monadelphous Engineering Associates Pty Ltd NELIS Joseph 575 Monadelphous Engineering Associates Pty Ltd OTTAWAY Kate 580 Monadelphous Engineering Associates Pty Ltd PAVLIK Robert 621 Monadelphous Engineering Associates Pty Ltd SPRAGUE Matthew 696 PCH Group Ltd BRYAN Jason 702 PCH Group Ltd DAVID Julian 706 PCH Group Ltd DUNN Nigel 713 PCH Group Ltd GATHERCOLE-SMITH Justin 715 PCH Group Ltd GLASS Steven 717 PCH Group Ltd HARTLEY Dean 721 PCH Group Ltd IEREMIA Sipili 724 PCH Group Ltd JENSEN Ross 725 PCH Group Ltd KAISER Michael 726 PCH Group Ltd KEARNS Clinton 729 PCH Group Ltd KLAPKO Andrew 733 PCH Group Ltd LODGE Dewayne 734 PCH Group Ltd LULHAM Marc 744 PCH Group Ltd MEDLAND Dean 745 PCH Group Ltd MILLS Stephen 750 PCH Group Ltd PAYNE Drew 757 PCH Group Ltd ROBINSON Michael 764 PCH Group Ltd TEPU Patrick 765 PCH Group Ltd THOMAS Jamie 766 PCH Group Ltd THOMPSON Stacy 769 PCH Group Ltd TUPAEA Matthew 770 PCH Group Ltd WALKER Stephen 771 PCH Group Ltd WATENE Cory 781 RCR Resources Pty Ltd (formerly RCR Construction & Maintenance Pty Ltd) ELBOROUGH Kimley 788 RCR Resources Pty Ltd (formerly RCR Construction & Maintenance Pty Ltd) PLUNKETT Kevin 789 RCR Resources Pty Ltd (formerly RCR Construction & Maintenance Pty Ltd) PORTER Mark 860 CBI Constructors Pty Ltd ALLMAN Robert 862 CBI Constructors Pty Ltd ARCARO Nicholas 906 CBI Constructors Pty Ltd HARDINGHAM Adrian 938 CBI Constructors Pty Ltd McINERNEY John 976 CBI Constructors Pty Ltd WATTS Priscilla 977 CBI Constructors Pty Ltd WEAVER Blake 978 CBI Constructors Pty Ltd WEAVER Mark 982 CBI Constructors Pty Ltd WOOD Leon 983 CBI Constructors Pty Ltd WOODWARD Sam 1000 United Group Resources Pty Ltd BHOI Arjun 1010 United Group Resources Pty Ltd BRENNAN Andrew 1030 United Group Resources Pty Ltd CRUICE Joshua 1076 United Group Resources Pty Ltd HOCKING Graeme 1226 United Group Resources Pty Ltd ALI David 1231 United Group Resources Pty Ltd BAINES David 1239 United Group Resources Pty Ltd BATEMAN Mark 1247 United Group Resources Pty Ltd BRAND Benjamin 1254 United Group Resources Pty Ltd CALDER Iain 1256 United Group Resources Pty Ltd CAMERON Ross 1276 United Group Resources Pty Ltd DAVIS Kevin 1279 United Group Resources Pty Ltd De Glanville Matthew 1292 United Group Resources Pty Ltd FEENSTRA Bud 1298 United Group Resources Pty Ltd GAFFNEY Andrew 1313 United Group Resources Pty Ltd HACKING David 1316 United Group Resources Pty Ltd HALLIGAN Lyncon 1317 United Group Resources Pty Ltd HAMILTON Cy 1328 United Group Resources Pty Ltd HODKINSON Ben 1338 United Group Resources Pty Ltd HULBERT Paul 1339 United Group Resources Pty Ltd HUYSHE Mark 1354 United Group Resources Pty Ltd KLYNSOON Joshua 1360 United Group Resources Pty Ltd LEWORTHY Shane 1374 United Group Resources Pty Ltd MCCLELLAN Charles 1378 United Group Resources Pty Ltd MCKINNON Allan 1386 United Group Resources Pty Ltd MORCOM Benjamin 1391 United Group Resources Pty Ltd NEAL Glen 1405 United Group Resources Pty Ltd PENGLASE Joel 1409 United Group Resources Pty Ltd PRATT John 1412 United Group Resources Pty Ltd RANSFIELD Curtis 1436 United Group Resources Pty Ltd TEAIA Jeremy 1440 United Group Resources Pty Ltd TRAVERS Karl 1450 United Group Resources Pty Ltd WAKEFIELD Liam 1451 United Group Resources Pty Ltd WALKER Michael 1453 United Group Resources Pty Ltd WALKER Alan 1463 United Group Resources Pty Ltd WYLLIE John 1474 United Group Resources Pty Ltd SILK Joe
Attachment 3 to the Statement of Agreed Facts and Law on Liability
Attachment 4 to the Statement of Agreed Facts and Law on Liability
Respondent Number
Employer
Respondent name
25 AGC Industries Pty Ltd ALWAYS PETER 32 AGC Industries Pty Ltd BEILKEN Grant 34 AGC Industries Pty Ltd BENKIRANE Abdellilah 36 AGC Industries Pty Ltd BLACKBOURNE Eden 45 AGC Industries Pty Ltd BROWN Matthew 47 AGC Industries Pty Ltd BROWNE Keith 49 AGC Industries Pty Ltd BUNNER Colin 50 AGC Industries Pty Ltd BUNYAN Paul 51 AGC Industries Pty Ltd BURGER David 56 AGC Industries Pty Ltd CAMPBELL Bevan 60 AGC Industries Pty Ltd CARR William 63 AGC Industries Pty Ltd CATTLE Leslie 64 AGC Industries Pty Ltd CHARDON Anthony 65 AGC Industries Pty Ltd CHO Han Jeong 87 AGC Industries Pty Ltd FABER Andrew 91 AGC Industries Pty Ltd FRASER David 100 AGC Industries Pty Ltd HALLAM Neil 107 AGC Industries Pty Ltd HEBBARD Quinton 117 AGC Industries Pty Ltd JEFFERIES Brad 118 AGC Industries Pty Ltd JENKINS Mark 121 AGC Industries Pty Ltd JOVANOVIC George 123 AGC Industries Pty Ltd KERMODE William 164 AGC Industries Pty Ltd PALLIER Matthew 181 AGC Industries Pty Ltd RIGLEY Peter 196 AGC Industries Pty Ltd SMITH Ryan 211 AGC Industries Pty Ltd TURNER Paul 212 AGC Industries Pty Ltd TURNER Anthony 215 AGC Industries Pty Ltd VENTURA Fabio 232 AGC Industries Pty Ltd ZABEL Ernest 236 Freo Group Limited CHAPPELL Harold 389 Monadelphous Engineering Associates Pty Ltd ABBOTT Ben 393 Monadelphous Engineering Associates Pty Ltd ALLSOP Simon 394 Monadelphous Engineering Associates Pty Ltd ANDERSON Steven 401 Monadelphous Engineering Associates Pty Ltd BALAZIC Robert 403 Monadelphous Engineering Associates Pty Ltd BAMBERRY Russell 409 Monadelphous Engineering Associates Pty Ltd BOXALL Darren 410 Monadelphous Engineering Associates Pty Ltd BOZTEPE Serkan 411 Monadelphous Engineering Associates Pty Ltd BRODIE Peter 414 Monadelphous Engineering Associates Pty Ltd BURGETT James 428 Monadelphous Engineering Associates Pty Ltd CERVINI Marc 432 Monadelphous Engineering Associates Pty Ltd CLAY Adam 441 Monadelphous Engineering Associates Pty Ltd CROSS Sidney 442 Monadelphous Engineering Associates Pty Ltd CUMMING Kenneth 448 Monadelphous Engineering Associates Pty Ltd DAVIS Greg 463 Monadelphous Engineering Associates Pty Ltd ELDERIDGE Ben 464 Monadelphous Engineering Associates Pty Ltd ELLIOTT Francis 477 Monadelphous Engineering Associates Pty Ltd FLETCHER Ryan 486 Monadelphous Engineering Associates Pty Ltd GLASS Victor 491 Monadelphous Engineering Associates Pty Ltd GRILLS Dean 494 Monadelphous Engineering Associates Pty Ltd HARRIS Robert 497 Monadelphous Engineering Associates Pty Ltd HEBBARD Leith 500 Monadelphous Engineering Associates Pty Ltd HODDY Graeme 502 Monadelphous Engineering Associates Pty Ltd HOLT Robert 505 Monadelphous Engineering Associates Pty Ltd HOWARD Morgan 509 Monadelphous Engineering Associates Pty Ltd JANNEKER Clinton 510 Monadelphous Engineering Associates Pty Ltd JARRETT Grant 514 Monadelphous Engineering Associates Pty Ltd JONES Raymond 512 Monadelphous Engineering Associates Pty Ltd JONES Rodney 522 Monadelphous Engineering Associates Pty Ltd KELLY Mick 530 Monadelphous Engineering Associates Pty Ltd LAMB Darren 533 Monadelphous Engineering Associates Pty Ltd LAWRIE Lachlan 534 Monadelphous Engineering Associates Pty Ltd LEANING Jason 535 Monadelphous Engineering Associates Pty Ltd LEO Graham 539 Monadelphous Engineering Associates Pty Ltd LIEBKE Steven 542 Monadelphous Engineering Associates Pty Ltd LORD Michael 543 Monadelphous Engineering Associates Pty Ltd LORTAN Gregory (Greg) 546 Monadelphous Engineering Associates Pty Ltd LUELING Freddi 548 Monadelphous Engineering Associates Pty Ltd MANN James 554 Monadelphous Engineering Associates Pty Ltd MCGUIRE Alastair 559 Monadelphous Engineering Associates Pty Ltd MILNE Andrew 566 Monadelphous Engineering Associates Pty Ltd NAIDOO Manivasagan 569 Monadelphous Engineering Associates Pty Ltd NGAWHIKA Shane 571 Monadelphous Engineering Associates Pty Ltd NOCK Alan 577 Monadelphous Engineering Associates Pty Ltd PALEVNO Dennis 583 Monadelphous Engineering Associates Pty Ltd PETERSEN Malcolm 585 Monadelphous Engineering Associates Pty Ltd PRIDDETH Jake 590 Monadelphous Engineering Associates Pty Ltd QUINLESS Fred 592 Monadelphous Engineering Associates Pty Ltd RANN Dylan 606 Monadelphous Engineering Associates Pty Ltd SCALES Simon 610 Monadelphous Engineering Associates Pty Ltd SCULLION Joseph 611 Monadelphous Engineering Associates Pty Ltd SCULLION Neil 613 Monadelphous Engineering Associates Pty Ltd SHAND Derick 614 Monadelphous Engineering Associates Pty Ltd SHELLY Ben 615 Monadelphous Engineering Associates Pty Ltd SIMPSON Tahi 619 Monadelphous Engineering Associates Pty Ltd SMITH Bruce 622 Monadelphous Engineering Associates Pty Ltd STARCEVIC Martin 633 Monadelphous Engineering Associates Pty Ltd TIMMERMANS James 635 Monadelphous Engineering Associates Pty Ltd TOMS Robin 636 Monadelphous Engineering Associates Pty Ltd TYSON Shane 643 Monadelphous Engineering Associates Pty Ltd WEARNE Adam 650 Monadelphous Engineering Associates Pty Ltd WILKINSON Norman 655 Monadelphous Engineering Associates Pty Ltd WOODLAND Jamie 658 Monadelphous Engineering Associates Pty Ltd YEONG Kam 707 PCH Group Ltd EMERY Manny 782 RCR Resources Pty Ltd (formerly RCR Construction & Maintenance Pty Ltd) FIELD Christopher 785 RCR Resources Pty Ltd (formerly RCR Construction & Maintenance Pty Ltd) HAWKINS Stephen 791 RCR Resources Pty Ltd (formerly RCR Construction & Maintenance Pty Ltd) SOMERVILLE Ryan 807 Downer EDI Engineering Power Pty Ltd CHRISTENSEN, Ross 813 Downer EDI Engineering Power Pty Ltd GIBBS Ian 864 CBI Constructors Pty Ltd BACON Kenneth 885 CBI Constructors Pty Ltd CLARK Robert 892 CBI Constructors Pty Ltd DONDAS Michael 895 CBI Constructors Pty Ltd EDWARDS David 896 CBI Constructors Pty Ltd ELPHICK Jeffrey 897 CBI Constructors Pty Ltd FAUSTINO Victor 898 CBI Constructors Pty Ltd FERREIRA Jose 899 CBI Constructors Pty Ltd FRONTE Salvatore 917 CBI Constructors Pty Ltd KOVACESKA Menka 918 CBI Constructors Pty Ltd KOVACESKI Donco 934 CBI Constructors Pty Ltd MARTIN Trevor 941 CBI Constructors Pty Ltd MCKENZIE Alan 943 CBI Constructors Pty Ltd MILLER Bradley 946 CBI Constructors Pty Ltd MITCHELL Robert 960 CBI Constructors Pty Ltd SCHMITT Gregory 963 CBI Constructors Pty Ltd SMYTHE Jason 964 CBI Constructors Pty Ltd SNELLIN Ronald 985 United Group Resources Pty Ltd Lionel Abrahams 993 United Group Resources Pty Ltd Kenneth Barclay 997 United Group Resources Pty Ltd Jason Behncke 1013 United Group Resources Pty Ltd Marcus Burke 1014 United Group Resources Pty Ltd Craig Cameron 1017 United Group Resources Pty Ltd Hasan Ceric 1028 United Group Resources Pty Ltd John Couts 1029 United Group Resources Pty Ltd Mark Coverly 1031 United Group Resources Pty Ltd Alfredo Da Silva 1033 United Group Resources Pty Ltd Trevor Datson 1036 United Group Resources Pty Ltd Jeffrey Davis 1038 United Group Resources Pty Ltd Gerrit De Blanken 1039 United Group Resources Pty Ltd James DeBruin 1040 United Group Resources Pty Ltd Beau Deverall 1042 United Group Resources Pty Ltd Manuel Dias 1043 United Group Resources Pty Ltd Radwan Eltchelebi 1048 United Group Resources Pty Ltd Mark Fleay 1050 United Group Resources Pty Ltd Katie Forbes 1051 United Group Resources Pty Ltd Terrence Fox 1056 United Group Resources Pty Ltd Steven Gaby 1064 United Group Resources Pty Ltd Phillip Grevell 1065 United Group Resources Pty Ltd Roger Griffiths 1066 United Group Resources Pty Ltd Michael Hagan 1069 United Group Resources Pty Ltd Peter Harris 1072 United Group Resources Pty Ltd John Heckscher 1074 United Group Resources Pty Ltd Todd Heron 1075 United Group Resources Pty Ltd Marcelene Heslop 1086 United Group Resources Pty Ltd David Hull 1088 United Group Resources Pty Ltd Glenn Hutton 1090 United Group Resources Pty Ltd Elias Israel 1097 United Group Resources Pty Ltd Mark Jones 1098 United Group Resources Pty Ltd Ray Jones 1103 United Group Resources Pty Ltd Nigel Kiedo 1105 United Group Resources Pty Ltd Travis Ladhams 1107 United Group Resources Pty Ltd Peter Law 1108 United Group Resources Pty Ltd Paul Leach 1111 United Group Resources Pty Ltd Mark Lindsay 1114 United Group Resources Pty Ltd Jason Lockhart 1115 United Group Resources Pty Ltd Stephen Lowther 1116 United Group Resources Pty Ltd William Lyall 1119 United Group Resources Pty Ltd Gerarado Magtalas 1120 United Group Resources Pty Ltd Simeon Magtalas 1128 United Group Resources Pty Ltd Adam McAnany 1132 United Group Resources Pty Ltd Ian McCracken 1133 United Group Resources Pty Ltd Matthew McGurgan 1136 United Group Resources Pty Ltd Spencer Meade 1144 United Group Resources Pty Ltd Steven Mott 1150 United Group Resources Pty Ltd Michael Narbey 1153 United Group Resources Pty Ltd Gregory Norris 1154 United Group Resources Pty Ltd Stephen Novak 1156 United Group Resources Pty Ltd Luke O'Fee 1159 United Group Resources Pty Ltd Martin Osborne 1160 United Group Resources Pty Ltd Robert Osbourne 1170 United Group Resources Pty Ltd Robert Pippia 1174 United Group Resources Pty Ltd Daniel Reddie 1175 United Group Resources Pty Ltd Ronald Robinson 1176 United Group Resources Pty Ltd Wayne Roelandts 1178 United Group Resources Pty Ltd Phillip Rowell 1180 United Group Resources Pty Ltd Jin (Fred) Sang-Yoo 1182 United Group Resources Pty Ltd Michael Schoeman 1184 United Group Resources Pty Ltd Yong Shao 1187 United Group Resources Pty Ltd Charles Snyman 1189 United Group Resources Pty Ltd Ralph Stapelfeldt 1191 United Group Resources Pty Ltd Clive Sucks 1192 United Group Resources Pty Ltd Steven Sulenta 1193 United Group Resources Pty Ltd Steven Tarran 1194 United Group Resources Pty Ltd Gary Taylor 1195 United Group Resources Pty Ltd Joseph Taylor 1198 United Group Resources Pty Ltd Christopher Thornhill 1200 United Group Resources Pty Ltd Alberto Tome 1201 United Group Resources Pty Ltd Brett Tooby 1203 United Group Resources Pty Ltd Mark Tutton 1204 United Group Resources Pty Ltd Brendan Tye 1205 United Group Resources Pty Ltd Colin Tyrer 1207 United Group Resources Pty Ltd Johnny Van Wyk 1209 United Group Resources Pty Ltd Adrian Vandersluis 1212 United Group Resources Pty Ltd Noel Webster 1220 United Group Resources Pty Ltd Henry Wynkwaardt 1221 United Group Resources Pty Ltd Noel Zanetti 1222 United Group Resources Pty Ltd Matthew Zonta 1223 United Group Resources Pty Ltd Pero Zuvela 1237 United Group Resources Pty Ltd Laurence Bascombe 1238 United Group Resources Pty Ltd John Basso 1240 United Group Resources Pty Ltd Richard Bauer 1242 United Group Resources Pty Ltd Craig Berry 1283 United Group Resources Pty Ltd Matthew Denton 1294 United Group Resources Pty Ltd Paulo Fernandes 1301 United Group Resources Pty Ltd Nicholas George 1309 United Group Resources Pty Ltd Phillip Green 1311 United Group Resources Pty Ltd Paul Grgurovic 1315 United Group Resources Pty Ltd Steven Hall 1320 United Group Resources Pty Ltd Greg Hatchett 1330 United Group Resources Pty Ltd Craig Holst 1335 United Group Resources Pty Ltd Tyrone Hoys 1337 United Group Resources Pty Ltd Victor Hugo 1349 United Group Resources Pty Ltd Savo Katic 1350 United Group Resources Pty Ltd Kosta Katsidis 1353 United Group Resources Pty Ltd David Kemp 1362 United Group Resources Pty Ltd Charles Liness 1364 United Group Resources Pty Ltd Christopher Luta 1398 United Group Resources Pty Ltd Tim Ogden 1455 United Group Resources Pty Ltd Steve Waltl 1469 United Group Resources Pty Ltd Charles Bell Attachment 5 to the Statement of Agreed Facts and Law on Liability
Respondent Number
Employer
Respondent name
14 Decmil Australia Pty Ltd HALES Rory 37 AGC Industries Pty Ltd BLOOR Graeme 42 AGC Industries Pty Ltd BRITCHER Colin 653 Monadelphous Engineering Associates Pty Ltd WILSON Troy 787 RCR Resources Pty Ltd (formerly RCR Construction & Maintenance Pty Ltd) PARVIN Stephen 877 CBI Constructors Pty Ltd BRITTAIN Timothy 888 CBI Constructors Pty Ltd CONNELL Travis 901 CBI Constructors Pty Ltd GARNIER-BRADLEY Jason 909 CBI Constructors Pty Ltd HOUSE Clayton 944 CBI Constructors Pty Ltd MILROY Gary 998 United Group Resources Pty Ltd Jan Bennett 1003 United Group Resources Pty Ltd Francis Blampied 1145 United Group Resources Pty Ltd Steven Moxon 1173 United Group Resources Pty Ltd Matthew Ramage 1219 United Group Resources Pty Ltd Gregory Williams 1361 United Group Resources Pty Ltd Robin Lilly Attachment 6 to the Statement of Agreed Facts and Law on Liability
- AGLC
- United Group Resources Pty Ltd v Calabro (No 5) [2011] FCA 1408
- Case
- [2011] FCA 1408
- Decision Date
CaseChat Overview and Summary
The court found that the industrial action was indeed unlawful and motivated by purposes defined in the BCII Act, such as supporting claims against employers and disrupting work performance. The reasoning relied on both inferential and testimonial evidence, including admissions by agents of the unrepresented respondents. The court concluded that the failure of the unrepresented respondents to deny or explain the allegations against them strengthened the case for liability. The court's decision acknowledged the agreement between the applicants and the represented respondents on the remedy and penalty, leaving the exact terms to be determined by the court. The final orders included declarations of liability and scheduled a further hearing to decide on the remedy and penalties.
The court declared that all respondents engaged in industrial action, violating the FW Act and the BCII Act, and ordered a hearing to determine the remedy and penalties. Represented respondents and applicants were directed to notify the court of any affidavits they intended to rely on and outline their contentions on remedy. Unrepresented respondents were also given the opportunity to file affidavits and contentions. The court further ordered that the applicants notify the unrepresented respondents of the findings and the upcoming hearing on remedy. The decision highlighted the importance of evidence, both inferential and testimonial, in establishing liability and underscored the court's role in determining appropriate penalties.
Orders
Orders of the court
1. There be judgment on liability in favour of the applicants as against all respondents.
2. The intervener’s case against the appearing respondents is adjourned to 10:15 am on 9 December 2011 for the intervener to apply, should it elect to do so, to adduce evidence on one additional aspect only (concerning paragraph 51A of a draft agreed statement); to adduce that evidence if permitted to do so and for the appearing respondents to adduce evidence in response on that issue only, should they elect to do so.
THE COURT DECLARES THAT:
3. The respondents engaged in:
(a) industrial action within the meaning of s 19 of' the Fair Work Act (Cth) 2009 (FW Act); and
(b) building industrial action within the meaning of s 36(1) of the Building and Construction Industry Improvement Act 2005 (Cth) (BCII Act),
on 22, 23, 25, 27, 28, 29 and 30 January 2010 by failing to attend for work on one or more days on which they were rostered to work, for either the whole or part of their rostered shift, as specified in the table annexed to the original orders made herewith, having been attached to the Applicants’ and Intervener’s Minute of Proposed Orders in relation to Liability and Directions in Relation to the Hearing on Remedy dated 20 September 2011 entitled ‘Final summary of respondent numbers and representation’.
4. Each respondent employed by:
(a) United Group Resources Pty Ltd (first applicant);
(b) AGC Industries Pty Ltd (second applicant);
(c) MAS Australasia Pty Ltd (third applicant);
(d) Downer EDI Engineering Power Pty Ltd (fourth applicant);
(e) Monadelphous Engineering Associates Pty Ltd (fifth applicant);
(f) Decmil Australia Pty Ltd (seventh applicant);
(g) PCH Group Ltd (tenth applicant); and
(h) RCR Power Pty Ltd (twelfth applicant)
contravened s 417(1) of the FW Act in respect of each day on which they took industrial action on 22, 23, 25, 27, 28, 29 and 30 January 2010, as specified in the table annexed to the original orders made herewith, having been attached to the Applicants’ and Intervener’s Minute of Proposed Orders in relation to Liability and Directions in Relation to the Hearing on Remedy dated 20 September 2011 entitled ‘Final summary of respondent numbers and representation’.
5. Respondents 865 and 871 (who were employed by the sixth applicant) contravened s 417 of the FW Act in respect of each day on which they took industrial action on 22, 23, 25, 27, 28, 29 and 30 January 2010, as specified in the table annexed to the original orders made herewith, having been attached to the Applicants’ and Intervener’s Minute of Proposed Orders in relation to Liability and Directions in Relation to the Hearing on Remedy dated 20 September 2011 entitled ‘Final summary of respondent numbers and representation’.
6. The respondents who were members of the Construction Forestry Mining & Energy Union (CFMEU), Communications Electrical & Plumbing Union (CEPU) or the Australian Manufacturing Workers Union (AMWU) (other than respondents employed by the thirteenth applicant) as at 23 January 2010 and during the term of the order made by Commissioner Cloghan of Fair Work Australia on 23 January 2010 contravened s 421(1) of the FW Act in respect of each day on which they took industrial action on 25, 27, 28, 29 and 30 January 2010, as specified in the table annexed to the original orders made herewith, having been attached to the Applicants’ and Intervener’s Minute of Proposed Orders in relation to Liability and Directions in Relation to the Hearing on Remedy dated 20 September 2011 entitled ‘Final summary of respondent numbers and representation’.
7. All of the respondents contravened s 38 of the BCII Act (except for Respondents 817 and 825) in respect of each day on which they took industrial action on 22, 23, 25, 27, 28, 29 and 30 January 2010, as specified in the table annexed to the original orders made herewith, having been attached to the Applicants’ and Intervener’s Minute of Proposed Orders in relation to Liability and Directions in Relation to the Hearing on Remedy dated 20 September 2011 entitled ‘Final summary of respondent numbers and representation’.
THE COURT FURTHER ORDERS THAT:
Directions as to hearing on remedy
8. The matter be listed for further hearing in relation to remedy on 13-16 December 2011, commencing at 10:15am on 13 December 2011.
9. The intervener to:
(a) give notice of its intention to rely upon any parts of any affidavits which have already been filed; and
(b) file and serve any additional affidavits on which it intends to rely
at the hearing on remedy together with an outline of contentions on remedy, by 4:00 pm on 25 October 2011.
10. The non-appearing respondents to file and serve any affidavits on which they intend to rely at the hearing on remedy, together with any outline of contentions on remedy, by 4:00 pm on 8 November 2011.
11. The represented respondents and the applicants to:
(a) give notice of their intention to rely upon any parts of any affidavits which have already been filed; and
(b) file and serve any additional affidavits on which they intend to rely
at the hearing on remedy, together with an outline of contentions on remedy, by 4:00 pm on 22 November 2011.
12. Each party to give notice of its intention to cross examine the deponent of any affidavit to be relied upon by another party at the hearing on remedy by 4:00 pm on 28 November 2011.
13. The parties to file any agreed statement of facts in relation to remedy by 4:00 pm on 28 November 2011.
14. The matter be listed for directions at 10:00 am on 29 November 2011.
15. Liberty to apply on 3 days’ notice.
The Court notes that the applicants will notify the non-appearing respondents of (a) the Court's decision as to liability, (b) the fact that the matter is set down for a hearing in relation to remedy on 13-16 December 2011, and (c) the directions made in relation to the hearing on remedy, by (i) sending a notice in the form annexed and marked ‘A’ to these orders to the last known address of each of the non-appearing respondents, and (ii) affixing a copy of the notice to the noticeboard(s) usually used for the purpose of communication with the respondents at the workplace on the Pluto LNG Project.
Annexure A
FEDERAL COURT OF AUSTRALIA
WAD 14 of 2010
Important Notice to Respondents
Name and Address of Respondent
Findings made as to liability
1. The Federal Court of Australia has determined that you have contravened s 417 of the Fair Work Act 2009 (Cth) and/or s 38 of the Building and Construction Industry Improvement Act 2005 (Cth) in relation to industrial action taken in the period from 22 to 30 January 2010 on the Pluto LNG Project.
2. The Court has listed the matter for hearing on 13 - 16 December 2011 (commencing at 10:15 am on 13 December 2011) in relation to any remedy it may impose in respect of your contraventions of the Fair Work Act 2009 and/or the Building and Construction Industry Improvement Act 2005.
3. Directions have been made in relation to the hearing on 13 - 16 December 2011 in accordance with paragraphs 8 - 15 of the attached document.
4. If you would like to participate in the hearing on 13 - 16 December 2011 in relation to remedy, you must file a notice of appearance in the Federal Court of Australia and comply with the directions set out in paragraphs 8 - 15 of the attached document.
5. If you enter an appearance in these proceedings, you are entitled to be sent by post a copy of the Court's decision on liability without charge upon written request being made for the same to the applicants' solicitors, Freehills, by any one of the following means:
Postal Address: Freehills DX 361 Sydney (Attention: Emma Krasenstein)
Facsimile: Freehills 02 9322 4000 (Attention: Emma Krasenstein)
E-mail: [email protected]
6. If you do not enter an appearance in these proceedings and take steps to participate in the hearing on remedy on 13 - 16 December 2011, the Federal Court of Australia may order that you pay a penalty and that a permanent injunction be imposed upon you to prevent you taking any unlawful industrial action.
Freehills
Solicitors for the Applicants
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
It follows that each unrepresented respondent in the URR Summary who has a 'Y' marked in the column entitled ‘s.417’ contravened s 417 of the FW Act on the days specified in that table by engaging in industrial action during the nominal term of an enterprise agreement. Consideration of liability of the unrepresented respondents In s 36(1) of the BCII Act ‘industrially-motivated’ is defined as follows (the IM definition):Industrially-motivated means motivated by one or more of the following purposes, or by purposes that include one or more of the following purposes:(a)supporting or advancing claims against an employer in respect of the employment of employees of that employer;(b)supporting or advancing claims by an employer in respect of the employment of employees of that employer;(c)advancing industrial objectives of an industrial association;(d)disrupting the performance of work.The employer referred to in paragraphs (a) and (b) need not be the employer whose employees do the work to which the action relates. Proof of industrial motivation (as defined above) against the 616 unrepresented respondents raised particular considerations which may not always be encountered. In relation to the unrepresented respondents, the applicants argued a case in relation to para (a) of the IM definition and did not, unlike the ABCC, argue in relation to para (d). The applicants and the ABCC submit that the building industrial action undertaken by each of the unrepresented respondents in January 2010 was unlawful pursuant to s 37(a) of the BCII Act. It was unlawful as it was industrially-motivated, in that it was motivated by a purpose, or by purposes which included the purpose, of:(a)supporting or advancing claims against an employer in respect of employees of that employer (para (a) of the IM definition), or (b)disrupting the performance of work (para (d) of the IM definition). In order to prove the unrepresented respondents’ industrial motivation, the applicants and the ABCC rely on inference, and additionally, in the case of some of the unrepresented respondents, admissions made by their agents. I am satisfied that the applicants and the ABCC have, in respect of the unrepresented respondents, presented evidence and argument fairly, albeit favourably to their case. No other evidence or argument at all was adduced. As such, I have adopted substantial portions of the submissions of the applicants and the ABCC on this topic without repeated attribution. Reliance on inference – the principles It is necessary, first to consider the inferential case. Proof of any fact on the balance of probabilities can be established by circumstantial evidence (Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262 (at [90])); that is, by proof of primary, or intermediate, facts from which the court infers a further fact (Shepherd v The Queen (1990) 170 CLR 573 (at 579). The primary facts can themselves be the product of inference from other facts. The applicants and the ABCC submit that in this case, in which the civil standard applies, ‘you need only circumstances raising a more probable inference in favour of what is alleged’ (Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1 (at 5)). A fact may be proved by inference if according to common experience the fact is the more probable inference from the unexplained primary facts (Bradshaw (at 6)). Certainty is never possible, and is not required (Transport Industries Insurance Co Ltd v Longmuir [1997] 1 VR 125 (at 141)); all that is necessary is that ‘circumstances are proved in which it is reasonable to find a balance of probabilities in favour of the conclusion sought’ (Bradshaw (at 5)). For the purpose of considering whether this test is met the Court must ‘consider the accumulation of the evidence’ (Chamberlain v The Queen (No 2) (1984) 153 CLR 521 (at 535)). It is appropriate ‘not only to evaluate each of the factual contentions separately but also to form an appreciation of the overall effect of the whole of the evidence’ (Clay v Clay (1999) 20 WAR 427 (at [55])), by considering ‘the weight which is to be given to the united force of all the circumstances put together’ (Belhaven and Stenton Peerage [1875] 1 App Cas 278 (at 279). The Court may draw an inference from a combination of intermediate facts, even if none of them in isolation would support the inference (Chamberlain (at 536)). It also means that:[a] true picture is to be derived from an accumulation of detail. The overall effect of the detailed picture can sometimes be best appreciated by standing back and viewing it from a distance, making an informed, considered, qualitative appreciation of the whole. The overall effect of the detail is not necessarily the same as the sum total of the individual details.(Longmuir (at 141)). The overall effect can be a product of primary facts that are combined like ‘strands in a cable’ (Seltsam (at [90])).