Williams v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union
[2010] FCA 754
•28 July 2010
FEDERAL COURT OF AUSTRALIA
Williams v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2010] FCA 754
Citation: Williams v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2010] FCA 754 Parties: ANDREW WILLIAMS v AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION, CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION, MICK POWELL, TONY MAVROMATIS, GARETH STEPHENSON and JULIO PIZARRO File number: VID 83 of 2009 Judge: JESSUP J Date of judgment: 28 July 2010 Catchwords: INDUSTRIAL LAW – Employees of construction sub‑contractor – Failure to return to work after union meeting – Failure to attend for work the following day – Whether motivated by purpose of advancing industrial objectives of unions, of supporting or advancing claims against employer or of disrupting performance of work – Whether authorised by officers of unions – Whether union officers counselled or procured failure to work, or were knowingly concerned in or party to failure to work.
INDUSTRIAL ACTION – Employees of construction sub‑contractor – Union organiser procuring vote at meeting of employees in favour of placing a ban on work – Whether amounted to engagement by organiser in ban or limitation on performance of work – If ban imposed by employees, whether counselled and procured by organiser.
INDUSTRIAL ACTION – Picketing and protesting at construction site and at offices of contractor and sub‑contractor – Whether amounted to action taken or organised with intent to coerce contractor to employ persons previously dismissed by another sub‑contractor or to make industrial agreement – Whether contractor’s choice sought to be negated – Whether illegitimate means employed – Extent of involvement of union organisers in action – Whether action authorised, or agreed or consented to, by organisers – Whether organisers counselled or procured, or were knowingly involved in, action – Liability of unions.
PENALTIES – Respondents accepting applicant’s case including level of penalties – Whether penalties within permissible range – Role of court.
Legislation: Building and Construction Industry Improvement Act 2005 (Cth) ss 4, 36, 37, 38, 43, 44, 48, 57, 69.
Workplace Relations Act 1996 (Cth) Pt 8, ss 507, 760, 826Cases cited: Cruse v Mulitplex Ltd (2008) 172 FCR 279
John Holland Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (2009) 174 FCR 526
Minister for Industry, Tourism and Resources v Mobil Oil Australia Pty Ltd [2004] FCAFC 72
Seven Network (Operations) Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (2001) 109 FCR 378
Stuart-Mahoney v Construction, Forestry, Mining and Energy Union [2008] FCA 1426
Williams v Construction, Forestry, Mining and Energy Union (2009) 179 IR 441Date of hearing: 1, 10 and 17 March, and 2 July 2010 Place: Melbourne Division: FAIR WORK DIVISION Category: Catchwords Number of paragraphs: 224 Counsel for the Applicant: Mr R Maidment SC with Ms L Taylor, Mr G Pauline and Mr P O’Grady Solicitor for the Applicant: Australian Government Solicitor Counsel for the First and Fourth Respondents: Mr S Moore Solicitor for the First and Fourth Respondents: Maurice Blackburn Counsel for the Second, Third and Fifth Respondents: Mr H Borenstein SC with Mr E White Solicitor for the Second, Third and Fifth Respondents: Slater & Gordon
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
FAIR WORK DIVISION
VID 83 of 2009
BETWEEN: ANDREW WILLIAMS
ApplicantAND: AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION
First RespondentCONSTRUCTION, FORESTRY, MINING AND ENERGY UNION
Second RespondentMICK POWELL
Third RespondentTONY MAVROMATIS
Fourth RespondentGARETH STEPHENSON
Fifth RespondentJULIO PIZARRO
Sixth Respondent
JUDGE:
JESSUP J
DATE OF ORDER:
28 JULY 2010
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
1.Each penalty set out in the 4th column of the table below be imposed on the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union for its contravention of the Building and Construction Industry Improvement Act 2005 (Cth) correspondingly referred to in the 3rd column thereof, constituted by the conduct engaged in, or the action organised or taken, by it correspondingly identified in the 2nd column thereof on the date or dates correspondingly set out in the 1st column thereof.
TABLE
1 2 3 4 Date(s) Conduct or action Prov’n Penalty 5 & 6 Feb 2009 By its officer Tony Mavromatis, authorising its members, employees of Civil Pacific Services (Vic) Pty Ltd, to fail or refuse to attend for building work or to perform building work on the West Gate Bridge project of John Holland Pty Ltd. s 38 $35,000 6 Feb 2009 By its officer Tony Mavromatis, taking action to prevent access to the site facility for the said West Gate Bridge project with intent to coerce Civil Pacific Services (Vic) Pty Ltd and/or John Holland Pty Ltd to make an agreement under Part 8 of the Workplace Relations Act 1996 (Cth) to cover building work on the said West Gate Bridge project. s 44 $45,000 3, 4, 6 & 10 Mar 2009 By its officer Tony Mavromatis, organising and taking action as set out in paras 36-37, 41-49 and 52-53 of the reasons of the court published on 28 July 2010 with intent to coerce John Holland Pty Ltd to employ former employees of Civil Pacific Services (Vic) Pty Ltd as building employees on the said West Gate Bridge project. s 43 $60,000 3, 4, 6 & 10 Mar 2009 By its officer Tony Mavromatis, taking action as set out in paras 36-37, 41-49 and 52-53 of the reasons of the court published on 28 July 2010 with intent to coerce John Holland Pty Ltd to make an agreement under Part 8 of the Workplace Relations Act 1996 (Cth) to cover building work on the said West Gate Bridge project. s 44 $11,000 11, 12 & 13 Mar 2009 By its officer Tony Mavromatis, organising and taking action as set out in paras 56-60, 63-71 and 81 of the reasons of the court published on 28 July 2010 with intent to coerce John Holland Pty Ltd to employ former employees of Civil Pacific Services (Vic) Pty Ltd as building employees on the said West Gate Bridge project. s 43 $60,000 11, 12 & 13 Mar 2009 By its officer Tony Mavromatis, taking action as set out in paras 56-60, 63-71 and 81 of the reasons of the court published on 28 July 2010 with intent to coerce John Holland Pty Ltd to make an agreement under Part 8 of the Workplace Relations Act 1996 (Cth) to cover building work on the said West Gate Bridge project. s 44 $11,000 16-21 March 2009 By its officer Tony Mavromatis, organising and taking action as set out in paras 82-104 of the reasons of the court published on 28 July 2010 with intent to coerce John Holland Pty Ltd to employ former employees of Civil Pacific Services (Vic) Pty Ltd as building employees on the said West Gate Bridge project. s 43 $65,000 16-21 March 2009 By its officer Tony Mavromatis, taking action as set out in paras 82-104 of the reasons of the court published on 28 July 2010 with intent to coerce John Holland Pty Ltd to make an agreement under Part 8 of the Workplace Relations Act 1996 (Cth) to cover building work on the said West Gate Bridge project. s 44 $11,000 2.Each penalty set out in the 4th column of the table below be imposed on the Construction, Forestry, Mining and Energy Union for its contravention of the Building and Construction Industry Improvement Act 2005 (Cth) correspondingly referred to in the 3rd column thereof, constituted by the conduct engaged in, or the action organised or taken, by it correspondingly identified in the 2nd column thereof on the date or dates correspondingly set out in the 1st column thereof.
TABLE
1 2 3 4 Date(s) Conduct or action Prov’n Penalty 5 & 6 Feb 2009 By its officer Mick Powell, authorising its members, employees of Civil Pacific Services (Vic) Pty Ltd, to fail or refuse to attend for building work or to perform building work on the said West Gate Bridge project. s 38 $36,000 6 Feb 2009 By its officer Mick Powell, taking action to prevent access to the site facility for the said West Gate Bridge project with intent to coerce Civil Pacific Services (Vic) Pty Ltd and/or John Holland Pty Ltd to make an agreement under Part 8 of the Workplace Relations Act 1996 (Cth) to cover building work on the said West Gate Bridge project. s 44 $55,000 3, 4, 6 & 10 Mar 2009 By its officers Mick Powell and Gareth Stephenson, organising and taking action as set out in paras 36-37, 41-49 and 52-53 of the reasons of the court published on 28 July 2010 with intent to coerce John Holland Pty Ltd to employ former employees of Civil Pacific Services (Vic) Pty Ltd as building employees on the said West Gate Bridge project. s 43 $70,000 3, 4, 6 & 10 Mar 2009 By its officers Mick Powell and Gareth Stephenson, taking action as set out in paras 36-37, 41-49 and 52-53 of the reasons of the court published on 28 July 2010 with intent to coerce John Holland Pty Ltd to make an agreement under Part 8 of the Workplace Relations Act 1996 (Cth) to cover building work on the said West Gate Bridge project. s 44 $17,500 11, 12 & 13 Mar 2009 By its officers Mick Powell and Gareth Stephenson, organising and taking action as set out in paras 56-60, 63-71 and 81 of the reasons of the court published on 28 July 2010 with intent to coerce John Holland Pty Ltd to employ former employees of Civil Pacific Services (Vic) Pty Ltd as building employees on the said West Gate Bridge project. s 43 $70,000 11, 12 & 13 Mar 2009 By its officers Mick Powell and Gareth Stephenson, taking action as set out in paras 56-60, 63-71 and 81 of the reasons of the court published on 28 July 2010 with intent to coerce John Holland Pty Ltd to make an agreement under Part 8 of the Workplace Relations Act 1996 (Cth) to cover building work on the said West Gate Bridge project. s 44 $17,500 1 2 3 4 Date(s) Conduct or action Prov’n Penalty 13 Mar 2009 By its officer Gareth Stephenson, imposing, or counselling and procuring the imposition of, a ban, limitation or restriction on the performance of building work by employees of McElligot Partners Pty Ltd, ET Higham Pty Ltd and Bell Scaffolding (Vic) Pty Ltd on the said West Gate Bridge project. s 38 $40,000 12 & 13 Mar 2009 By its officer Gareth Stephenson, taking action to counsel and to procure employees of McElligot Partners Pty Ltd, ET Higham Pty Ltd and Bell Scaffolding (Vic) Pty Ltd to impose and to give effect to a ban, limitation or restriction on the performance of building work on the said West Gate Bridge project with intent to coerce John Holland Pty Ltd to employ former employees of Civil Pacific Services (Vic) Pty Ltd as building employees on that project. s 43 $10,000 12 & 13 Mar 2009 By its officer Gareth Stephenson, taking action to counsel and to procure employees of McElligot Partners Pty Ltd, ET Higham Pty Ltd and Bell Scaffolding (Vic) Pty Ltd to impose and to give effect to a ban, limitation or restriction on the performance of building work on the said West Gate Bridge project with intent to coerce John Holland Pty Ltd to make an agreement under Part 8 of the Workplace Relations Act 1996 (Cth) to cover building work on that project. s 44 $50,000 16-21 March 2009 By its officers Mick Powell and Gareth Stephenson, organising and taking action as set out in paras 82-104 of the reasons of the court published on 28 July 2010 with intent to coerce John Holland Pty Ltd to employ former employees of Civil Pacific Services (Vic) Pty Ltd as building employees on the said West Gate Bridge project. s 43 $70,000 16-21 March 2009 By its officers Mick Powell and Gareth Stephenson, taking action as set out in paras 82-104 of the reasons of the court published on 28 July 2010 with intent to coerce John Holland Pty Ltd to make an agreement under Part 8 of the Workplace Relations Act 1996 (Cth) to cover building work on the said West Gate Bridge project. s 44 $17,500 30 & 31 March 2009 By its officers Mick Powell and Gareth Stephenson, organising and taking action as set out in paras 107-117 of the reasons of the court published on 28 July 2010 with intent to coerce John Holland Pty Ltd to employ former employees of Civil Pacific Services (Vic) Pty Ltd as building employees on the said West Gate Bridge project. s 43 $60,000 30 & 31 March 2009 By its officers Mick Powell and Gareth Stephenson, taking action as set out in paras 107-117 of the reasons of the court published on 28 July 2010 with intent to coerce John Holland Pty Ltd to make an agreement under Part 8 of the Workplace Relations Act 1996 (Cth) to cover building work on the said West Gate Bridge project. s 44 $14,500 1 2 3 4 Date(s) Conduct or action Prov’n Penalty 7, 8 & 9 April 2009 By its officers Mick Powell and Gareth Stephenson, organising and taking action as set out in paras 118-128 of the reasons of the court published on 28 July 2010 with intent to coerce John Holland Pty Ltd to employ former employees of Civil Pacific Services (Vic) Pty Ltd as building employees on the said West Gate Bridge project. s 43 $85,000 7, 8 & 9 April 2009 By its officers Mick Powell and Gareth Stephenson, taking action as set out in paras 118-128 of the reasons of the court published on 28 July 2010 with intent to coerce John Holland Pty Ltd to make an agreement under Part 8 of the Workplace Relations Act 1996 (Cth) to cover building work on the said West Gate Bridge project. s 44 $25,000 14 & 15 April 2009 By its officers Mick Powell and Gareth Stephenson, organising and taking action as set out in paras 129-131 of the reasons of the court published on 28 July 2010 with intent to coerce John Holland Pty Ltd to employ former employees of Civil Pacific Services (Vic) Pty Ltd as building employees on the said West Gate Bridge project. s 43 $85,000 14 & 15 April 2009 By its officers Mick Powell and Gareth Stephenson, taking action as set out in paras 129-131 of the reasons of the court published on 28 July 2010 with intent to coerce John Holland Pty Ltd to make an agreement under Part 8 of the Workplace Relations Act 1996 (Cth) to cover building work on the said West Gate Bridge project. s 44 $25,000 29 April 2009 By its officers Mick Powell and Gareth Stephenson, organising and taking action as set out in paras 134-149 of the reasons of the court published on 28 July 2010 with intent to coerce John Holland Pty Ltd to employ former employees of Civil Pacific Services (Vic) Pty Ltd as building employees on the said West Gate Bridge project. s 43 $85,000 29 April 2009 By its officers Mick Powell and Gareth Stephenson, taking action as set out in paras 134-149 of the reasons of the court published on 28 July 2010 with intent to coerce John Holland Pty Ltd to make an agreement under Part 8 of the Workplace Relations Act 1996 (Cth) to cover building work on the said West Gate Bridge project. s 44 $25,000 3.Each penalty set out in the 4th column of the table below be imposed on Mick Powell for his contravention of the Building and Construction Industry Improvement Act 2005 (Cth) correspondingly referred to in the 3rd column thereof, constituted by the conduct engaged in, or the action organised or taken, by him correspondingly identified in the 2nd column thereof on the date or dates correspondingly set out in the 1st column thereof.
TABLE
1 2 3 4 Date(s) Conduct or action Prov’n Penalty 5 & 6 Feb 2009 Counselling, procuring and being directly and knowingly concerned in a contravention of s 38 of the Building and Construction Industry Improvement Act 2005 (Cth) constituted by employees of Civil Pacific Services (Vic) Pty Ltd failing or refusing to attend for building work or to perform building work on the said West Gate Bridge project. s 38 $5,000 6 Feb 2009 Taking action to prevent access to the site facility for the said West Gate Bridge project with intent to coerce Civil Pacific Services (Vic) Pty Ltd and/or John Holland Pty Ltd to make an agreement under Part 8 of the Workplace Relations Act 1996 (Cth) to cover building work on the said West Gate Bridge project. s 44 $12,000 3, 4, 6 & 10 Mar 2009 Organising and taking action as set out in paras 36-37, 41-49 and 52-53 of the reasons of the court published on 28 July 2010 with intent to coerce John Holland Pty Ltd to employ former employees of Civil Pacific Services (Vic) Pty Ltd as building employees on the said West Gate Bridge project. s 43 $7,000 3, 4, 6 & 10 Mar 2009 Taking action as set out in paras 36-37, 41-49 and 52-53 of the reasons of the court published on 28 July 2010 with intent to coerce John Holland Pty Ltd to make an agreement under Part 8 of the Workplace Relations Act 1996 (Cth) to cover building work on the said West Gate Bridge project. s 44 $2,000 7, 8 & 9 April 2009 Organising and taking action as set out in paras 118-128 of the reasons of the court published on 28 July 2010 with intent to coerce John Holland Pty Ltd to employ former employees of Civil Pacific Services (Vic) Pty Ltd as building employees on the said West Gate Bridge project. s 43 $12,000 7, 8 & 9 April 2009 Taking action as set out in paras 118-128 of the reasons of the court published on 28 July 2010 with intent to coerce John Holland Pty Ltd to make an agreement under Part 8 of the Workplace Relations Act 1996 (Cth) to cover building work on the said West Gate Bridge project. s 44 $2,000 14 & 15 April 2009 Organising and taking action as set out in paras 129-131 of the reasons of the court published on 28 July 2010 with intent to coerce John Holland Pty Ltd to employ former employees of Civil Pacific Services (Vic) Pty Ltd as building employees on the said West Gate Bridge project. s 43 $12,000 14 & 15 April 2009 Taking action as set out in paras 129-131 of the reasons of the court published on 28 July 2010 with intent to coerce John Holland Pty Ltd to make an agreement under Part 8 of the Workplace Relations Act 1996 (Cth) to cover building work on the said West Gate Bridge project. s 44 $2,000 1 2 3 4 Date(s) Conduct or action Prov’n Penalty 29 April 2009 Organising and taking action as set out in paras 134-149 of the reasons of the court published on 28 July 2010 with intent to coerce John Holland Pty Ltd to employ former employees of Civil Pacific Services (Vic) Pty Ltd as building employees on the said West Gate Bridge project. s 43 $14,000 29 April 2009 Taking action as set out in paras 134-149 of the reasons of the court published on 28 July 2010 with intent to coerce John Holland Pty Ltd to make an agreement under Part 8 of the Workplace Relations Act 1996 (Cth) to cover building work on the said West Gate Bridge project. s 44 $3,000 4.Each penalty set out in the 4th column of the table below be imposed on Tony Mavromatis for his contravention of the Building and Construction Industry Improvement Act 2005 (Cth) correspondingly referred to in the 3rd column thereof, constituted by the conduct engaged in, or the action organised or taken, by him correspondingly identified in the 2nd column thereof on the date or dates correspondingly set out in the 1st column thereof.
TABLE
1 2 3 4 Date(s) Conduct or action Prov’n Penalty 5 & 6 Feb 2009 Counselling, procuring and being directly and knowingly concerned in a contravention of s 38 of the Building and Construction Industry Improvement Act 2005 (Cth) constituted by employees of Civil Pacific Services (Vic) Pty Ltd failing or refusing to attend for building work or to perform building work on the said West Gate Bridge project. s 38 $6,000 6 Feb 2009 Taking action to prevent access to the site facility for the said West Gate Bridge project with intent to coerce Civil Pacific Services (Vic) Pty Ltd and/or John Holland Pty Ltd to make an agreement under Part 8 of the Workplace Relations Act 1996 (Cth) to cover building work on the said West Gate Bridge project. s 44 $12,000 3, 4, 6 & 10 Mar 2009 Organising and taking action as set out in paras 36-37, 41-49 and 52-53 of the reasons of the court published on 28 July 2010 with intent to coerce John Holland Pty Ltd to employ former employees of Civil Pacific Services (Vic) Pty Ltd as building employees on the said West Gate Bridge project. s 43 $7,000 3, 4, 6 & 10 Mar 2009 Taking action as set out in paras 36-37, 41-49 and 52-53 of the reasons of the court published on 28 July 2010 with intent to coerce John Holland Pty Ltd to make an agreement under Part 8 of the Workplace Relations Act 1996 (Cth) to cover building work on the said West Gate Bridge project. s 44 $2,000 5.Each penalty set out in the 4th column of the table below be imposed on Gareth Stephenson for his contravention of the Building and Construction Industry Improvement Act2005 (Cth) correspondingly referred to in the 3rd column thereof, constituted by the conduct engaged in, or the action organised or taken, by him correspondingly identified in the 2nd column thereof on the date or dates correspondingly set out in the 1st column thereof.
TABLE
1 2 3 4 Date(s) Conduct or action Prov’n Penalty 3, 4, 6 & 10 Mar 2009 Organising and taking action as set out in paras 36-37, 41-49 and 52-53 of the reasons of the court published on 28 July 2010 with intent to coerce John Holland Pty Ltd to employ former employees of Civil Pacific Services (Vic) Pty Ltd as building employees on the said West Gate Bridge project. s 43 $7,000 3, 4, 6 & 10 Mar 2009 Taking action as set out in paras 36-37, 41-49 and 52-53 of the reasons of the court published on 28 July 2010 with intent to coerce John Holland Pty Ltd to make an agreement under Part 8 of the Workplace Relations Act 1996 (Cth) to cover building work on the said West Gate Bridge project. s 44 $2,000 13 Mar 2009 Imposing or counselling and procuring the imposition of, a ban, limitation or restriction on the performance of building work by employees of McElligot Partners Pty Ltd, ET Higham Pty Ltd and Bell Scaffolding (Vic) Pty Ltd on the said West Gate Bridge project. s 38 $10,000 12 & 13 Mar 2009 Taking action to counsel and to procure employees of McElligot Partners Pty Ltd, ET Higham Pty Ltd and Bell Scaffolding (Vic) Pty Ltd to impose and to give effect to a ban, limitation or restriction on the performance of building work on the said West Gate Bridge project with intent to coerce John Holland Pty Ltd to employ former employees of Civil Pacific Services (Vic) Pty Ltd as building employees on that project. s 43 $2,000 12 & 13 Mar 2009 Taking action to counsel and to procure employees of McElligot Partners Pty Ltd, ET Higham Pty Ltd and Bell Scaffolding (Vic) Pty Ltd to impose and to give effect to a ban, limitation or restriction on the performance of building work on the said West Gate Bridge project with intent to coerce John Holland Pty Ltd to make an agreement under Part 8 of the Workplace Relations Act 1996 (Cth) to cover building work on that project. s 44 $7,000 7, 8 & 9 April 2009 Organising and taking action as set out in paras 118-128 of the reasons of the court published on 28 July 2010 with intent to coerce John Holland Pty Ltd to employ former employees of Civil Pacific Services (Vic) Pty Ltd as building employees on the said West Gate Bridge project. s 43 $10,000 1 2 3 4 Date(s) Conduct or action Prov’n Penalty 7, 8 & 9 April 2009 Taking action as set out in paras 118-128 of the reasons of the court published on 28 July 2010 with intent to coerce John Holland Pty Ltd to make an agreement under Part 8 of the Workplace Relations Act 1996 (Cth) to cover building work on the said West Gate Bridge project. s 44 $2,000 14 & 15 April 2009 Organising and taking action as set out in paras 129-131 of the reasons of the court published on 28 July 2010 with intent to coerce John Holland Pty Ltd to employ former employees of Civil Pacific Services (Vic) Pty Ltd as building employees on the said West Gate Bridge project. s 43 $12,000 14 & 15 April 2009 Taking action as set out in paras 129-131 of the reasons of the court published on 28 July 2010 with intent to coerce John Holland Pty Ltd to make an agreement under Part 8 of the Workplace Relations Act 1996 (Cth) to cover building work on the said West Gate Bridge project. s 44 $2,000 29 April 2009 Organising and taking action as set out in paras 134-149 of the reasons of the court published on 28 July 2010 with intent to coerce John Holland Pty Ltd to employ former employees of Civil Pacific Services (Vic) Pty Ltd as building employees on the said West Gate Bridge project. s 43 $14,000 29 April 2009 Taking action as set out in paras 134-149 of the reasons of the court published on 28 July 2010 with intent to coerce John Holland Pty Ltd to make an agreement under Part 8 of the Workplace Relations Act 1996 (Cth) to cover building work on the said West Gate Bridge project. s 44 $3,000 6.Each of the penalties referred to above be paid to the Consolidated Revenue Fund on or before 10 September 2010.
7.The application otherwise be dismissed.
8.The first and fourth respondents pay $50,000 by way of costs to the applicant.
9.The second, third and fifth respondents pay $100,000 by way of costs to the applicant.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
FAIR WORK DIVISION
VID 83 of 2009
BETWEEN: ANDREW WILLIAMS
ApplicantAND: AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION
First RespondentCONSTRUCTION, FORESTRY, MINING AND ENERGY UNION
Second RespondentMICK POWELL
Third RespondentTONY MAVROMATIS
Fourth RespondentGARETH STEPHENSON
Fifth RespondentJULIO PIZARRO
Sixth Respondent
JUDGE:
JESSUP J
DATE:
28 JULY 2010
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
Introduction
On 6 February 2009, the applicant, an Australian Building Construction Inspector appointed under s 57 of the Building and Construction Industry Improvement Act 2005 (Cth) (“the BCII Act”), commenced this proceeding, in which he claims penalties and injunctions against the respondents in respect of conduct alleged to be unlawful under ss 38, 43 and 44 of that Act. The Statement of Claim, originally filed on 7 August 2009 and subsequently amended, alleges conduct by the respondents and others in connection with a construction project undertaken by John Holland Pty Ltd (“John Holland”) for strengthening works on the West Gate Bridge at Melbourne. The first and second respondents, the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (“the AMWU”) and the Construction, Forestry, Mining and Energy Union (“the CFMEU”) respectively (together, “the respondent unions”), were, at relevant times, organisations registered under the Workplace Relations Act 1996 (Cth) (“the WR Act”). The third and fifth respondents, Mick Powell and Gareth Stephenson, were organisers in the employ of the CFMEU. The fourth respondent, Tony Mavromatis, was an organiser in the employ of the AMWU.
The proceeding has its factual context in a major industrial dispute played out between the respondents and John Holland in February, March and April 2009. The first instance of what was said to be unlawful conduct occurred on 5 February 2009 and, as I have indicated above, the proceeding was commenced the following day, at which time only the respondent unions and Mr Powell were respondents. Over the course of about the ensuing three months, the range of the applicant’s allegations expanded, in effect reflecting the respondents’ conduct of which complaint was made. Mr Mavromatis was added as a respondent on 12 February 2009, and Mr Stephenson was added on 24 March 2009. John Holland commenced a corresponding proceeding (“the Holland proceeding”) on 10 February 2009, to which the respondent unions, Messrs Mavromatis and Powell, and another AMWU organiser, Mick Bull, were then respondents. Ultimately that proceeding was settled in May 2009 as part of the settlement of the dispute generally as between John Holland and the respondent unions. On 15 May 2009, I gave John Holland leave to discontinue that proceeding.
The present proceeding was not settled, at least not so promptly. However, at a mention on 23 February 2010, I was informed that a consensus of sorts had been reached by the parties, the content of which became apparent when terms of settlement were handed up on the first day of the trial, 1 March 2010. Those terms were as follows:
1. The Applicant will file an amended Statement of Claim directed to proof of contraventions of the BCII Act specified in the two Tables (the Tables) attached hereto.
2. The Respondents will not consent to but will not oppose findings being made by the Court that each of the contraventions set out in the Tables has been committed in the manner described in the respective paragraphs of the amended Statement of Claim.
3. The Applicant will tender appropriate evidence directed to the liability of the Respondents for the contraventions referred to in the Tables. The Respondents will inform the Court that they do not contest that evidence.
4. The Respondents will not object to the admission into evidence of various unsworn statements or outlines of expected evidence filed and served on 21 December 2009 regarding the events of 29 April 2009.
5. The Applicant and the Respondents will each submit to the Court that, in the event that the Court finds that the contraventions (or any of them) have occurred, the penalties referred to in the Tables are within the appropriate range of penalties for the contraventions to which those penalties correspond.
6. Further, the Applicant and the Respondents will jointly apply to the Court for, make submissions in support of, and may each lead evidence directed to and in support of as being appropriate, the imposition of:
(a) the penalties in the Tables which correspond to each of the contraventions, totalling $298,000 in relation to the first Respondent (the AMWU), $858,000 in relation to the second Respondent (the CFMEU), $71,000 in relation to each of the third and fifth Respondents and $27,000 in relation to the fourth Respondent; or
(b) in the event that not all of the contraventions are found by the Court to have occurred, the corresponding penalties referred to in the Tables for each of the contraventions that are found by the Court to have occurred.7. The Applicant will seek orders that the First and Fourth Respondent pay his costs in the sum of $50,000 and that the Second, Third and Fifth Respondent pay his costs in the sum of $100,000. The respondents will not oppose the Court making those orders.
TABLE OF PENALTIES AGREED BETWEEN THE APPLICANT AND THE SECOND, THIRD AND FIFTH RESPONDENTS
1. In the following Table:
1.1 CFMEU means the Second Respondent;
1.2 Powell means the Third Respondent; and
1.3 Stephenson means the Fifth Respondent
Date Respondent Section Statement of
Claim paragraph
Penalty 5-6 Feb 09 CFMEU s.38 [59], [67] $36,000 5-6 Feb 09 Powell s.38 [63] $5,000 6 Feb 09 CFMEU s.44 [78], [81] $55,000 6 Feb 09 Powell s.44 [71], [73] & [75] $12,000 3-10 Mar 09 CFMEU s.43 [122]-[124] $70,000 3-10 Mar 09 Powell s.43 [113]-[115] $7,000 3-10 Mar 09 Stephenson s.43 [117]-[119] $7,000 3-10 Mar 09 CFMEU s.44 [144] $17,500 3-10 Mar 09 Powell s.44 [135] & [137] $2,000 3-10 Mar 09 Stephenson s.44 [139] & [141] $2,000 11-13 Mar 09 CFMEU s.43 [160]-[162] $70,000 11-13 Mar 09 CFMEU s.44 [170] $17,500 12-13 Mar 09 CFMEU s.38 [190] $40,000 Date Respondent Section Statement of
Claim paragraph
Penalty 12-13 Mar 09 Stephenson s.38 [188] $10,000 12-13 Mar 09 CFMEU s.44 [204] $50,000 12-13 Mar 09 Stephenson s.44 [201] $7,000 12-13 Mar 09 CFMEU s.43 [197]-[199] $10,000 12-13 Mar 09 Stephenson s.43 [192]-[194] $2,000 16-21 Mar 09 CFMEU s.43 [228]-[230] $70,000 16-21 Mar 09 CFMEU s.44 [238] $17,500 26-31 Mar 09 CFMEU s.43 [255]-[257] $60,000 26-31 Mar 09 CFMEU s.44 [265] $14,500 7-9 Apr 09 CFMEU s.43 [308]-[310] $85,000 7-9 Apr 09 Powell s.43 [315] $12,000 7-9 Apr 09 Stephenson s.43 [317] $10,000 7-9 Apr 09 CFMEU s.44 [313] $25,000 7-9 Apr 09 Powell s.44 [315] $2,000 7-9 Apr 09 Stephenson s.44 [317] $2,000 14-16 Apr 09 CFMEU s.43 [308]-[310] $85,000 14-16 Apr 09 Powell s.43 [315] $12,000 14-16 Apr 09 Stephenson s.43 [317] $12,000 14-16 Apr 09 CFMEU s.44 [313] $25,000 14-16 Apr 09 Powell s.44 [315] $2,000 14-16 Apr 09 Stephenson s.44 [317] $2,000 29 Apr 09 CFMEU s.43 [308]-[310] $85,000 29 Apr 09 Powell s.43 [315] $14,000 29 Apr 09 Stephenson s.43 [317] $14,000 29 Apr 09 CFMEU s.44 [313] $25,000 29 Apr 09 Powell s.44 [315] $3,000 29 Apr 09 Stephenson s.44 [317] $3,000 Total
PenaltyCFMEU $858,000 Total
PenaltyPowell $71,000 Total
PenaltyStephenson $71,000 TABLE OF PENALTIES AGREED BETWEEN THE APPLICANT AND THE FIRST AND FOURTH RESPONDENTS
2. In the following Table:
2.1 AMWU means the First Respondent; and
2.2 Mavromatis means the Fourth Respondent.
Respondent [sic] Date [sic] Section Statement of
Claim paragraph
Penalty 5-6 Feb 09 AMWU s.38 [61], [69] $35,000 5-6 Feb 09 Mavromatis s.38 [65] $6,000 6 Feb 09 AMWU s.44 [90], [93] $45,000 6 Feb 09 Mavromatis s.44 [83], [85] & [87] $12,000 3-10 Mar 09 AMWU s.43 [131]-[133] $60,000 3-10 Mar 09 Mavromatis s.43 [126]-[128] $7,000 3-10 Mar 09 AMWU s.44 [151] $11,000 3-10 Mar 09 Mavromatis s.44 [146] & [148] $2,000 11-13 Mar 09 AMWU s.43 [165]-[167] $60,000 11-13 Mar 09 AMWU s.44 [173] $11,000 16-21 Mar 09 AMWU s.43 [233]-[235] $65,000 16-21 Mar 09 AMWU s.44 [241] $11,000 Total AMWU $298,000 Mavromatis $27,000 Total Penalties $325,000
In the result, a great deal of uncontested evidence was led by the applicant in affidavits, witness statements and the form of video footage. My path through this evidence was guided by detailed written submissions made on behalf of the applicant and by a chronology identifying the evidence which related to each day of the dispute, and in many cases to each moment of each day. None of the witnesses was called for cross-examination, and the respondents did not submit that any of them should not be believed. Further, to the extent that the applicant’s case was inferential, the respondents did not submit that the inferences which I was invited to draw by the applicant – or which otherwise were fairly available on the primary evidence – should not be drawn.
As will be apparent from the tables of agreed penalties set out above, the applicant grouped the respondents’ conduct in periods of up to 11 days. This was said to reflect patterns of conduct comprising individual incidents, which, taken together, amounted to single courses of conduct. Thus the conduct of each respondent over the period 3-10 March 2009, for example, was said to amount to a single contravention of each of ss 43 and 44 of the BCII Act on the part of that respondent. The respondents raised no objection to the organisation of the evidence in this way, and I shall adopt it in my reasons which follow.
As I have said, there are three provisions of the BCII Act which, according to the applicant, the respondents have contravened. I shall refer to the terms of those provisions in detail later, but I note at this stage that s 38 proscribes “unlawful industrial action” (including a failure or refusal to attend for building work which is “industrially-motivated” – an expression to which I shall return); s 43 proscribes action taken with the intent to coerce a person to employ, or not to employ, a person as a building employee or to engage, or not to engage, a person as a building contractor; and s 44 proscribes action taken (or threatened to be taken), and refraining (or threatening to refrain) from taking action, with intent to coerce, or to apply undue pressure to, a person to agree to make a building agreement under Pt 8 of the WR Act. Sections 43 and 44 in particular are relevant in the present case, since the essence of the dispute at the West Gate Bridge was John Holland’s refusal to make an industrial agreement with the respondent unions and its refusal to adjust the contract rate of a sub-contractor to reflect such an agreement which it had made with those unions, and the respondents’ insistence that workers who had been dismissed by that sub-contractor as a result of John Holland’s refusal should be re-employed on the bridge and that other workers, engaged on the bridge either directly or through another sub-contractor which did not have such an agreement, should not be so engaged.
Geography
There were four locations at which the respondents, as alleged by the applicant, engaged in conduct in contravention of the BCII Act. Two of those locations were in the immediate vicinity of the West Gate Bridge itself. The bridge crosses the Yarra River along an alignment which is generally north-west/south-east. Immediately to the west of the river, and running under the north-western approach to the bridge, is a road, running north-south, called Hyde Street (which becomes Douglas Parade to the south of the bridge). To the west of Hyde Street is a large allotment which was used as a depot and working site for the project. This was described in the evidence as “the site facility”. The main entrance to the site facility was at its eastern end, off Hyde Street. A second entry was at the western end of the site facility, off Hall Street. Most of the activities which occurred in the early days of the industrial dispute to which I will refer took place at one or other, or both, of these entrances.
The second location of concern was a smaller allotment immediately to the east of the river, and extending under the arches of the bridge at that point. This was described in the evidence as “the eastern compound”. On the eastern side of the river, immediately to the north-east of the bridge structure, and parallel therewith, is a dead-end street called Sardine Street. The main entrance to the eastern compound led off Sardine Street. At its north-western end, Sardine Street intersects with Lorimer Street, a main road which follows the course of the river to the north-east and, at its south-western end, terminates at the corner of Sardine Street. It should be apparent from this description that the conventional means of access to the eastern compound would be along Lorimer Street, turning left into Sardine Street, and then turning right through the entrance into the compound. Much of the allegedly unlawful conduct of the respondents towards the end of the period of disputation occurred in the vicinity of the eastern compound.
The third location of interest was a commercial office building on the corner of Williamstown Road and Smith Street, Port Melbourne. This was used by John Holland as the administrative head office for the project, and was described in the evidence as “the project head office”. At this point, Williamstown Road is a divided carriageway. The main pedestrian entrance into the project head office led off Williamstown Road. There was a vehicular entrance into the project head office, by way of an opening shuttered with a roller door, leading off Smith Street.
The fourth location of interest was the corporate head office of John Holland in Trennery Crescent, Abbotsford. This location is well away from the vicinity of the West Gate Bridge, and became relevant only because the conduct of the respondents at the project head office obliged John Holland to use the corporate head office for the induction and training of certain workers, in circumstances to which I shall refer.
Background to the dispute
David Cassells was John Holland’s general superintendent for the West Gate Bridge project. He explained that the project involved steel and concrete strengthening work to enable the bridge to carry ten lanes of traffic, rather than its existing capacity of eight lanes. The estimated cost of the project was $240,000,000. The project was scheduled to be completed in October 2010.
In January and February 2009, the work being done was “enabling works”, which involved opening up access through the steel section of the bridge, through diaphragms and webs, and introducing walkways and monorail systems to enable the strengthening work to be performed. At this time, save for the managerial and supervisory staff of John Holland, and a small group of specialist paint removers, the workforce on the project consisted of 32 employees of a labour hire concern called Civil Pacific Services (Vic) Pty Ltd (“Civil Pacific”).
It seems that John Holland proposed to undertake much of the work on the bridge project by the use of contractors, and also to undertake some of the work through its own directly employed labour. John Holland was party to an industrial agreement with the Australian Workers Union (“the AWU”), another organisation registered under the WR Act, called the John Holland Pty Ltd and Australian Workers Union Construction Agreement 2008-2010 (“the Southern Region Agreement”). Civil Pacific was a party to an industrial agreement with the AWU, the Civil Pacific Services and Australian Workers Union Construction Industry Certified Agreement 2008-2010 (“the Civil Pacific Agreement”). I infer that John Holland took the view that the Southern Region Agreement was an existing instrument appropriate for the coverage of the kinds of labour that were to be engaged on the bridge, and that Civil Pacific, as a contractor to John Holland, likewise had settled industrial coverage under the Civil Pacific Agreement. It seems (as will be conspicuously apparent in what follows below) that the commercial terms under which Civil Pacific contracted with John Holland were based upon the assumption that the Civil Pacific Agreement would govern the wages and conditions of employment of those employed by Civil Pacific on the project.
In the months leading to the commencement of the project, the respondent unions became concerned that they would have no role in the industrial representation of workers engaged on the project. In the first instance at least, they were concerned that the workers employed by Civil Pacific, and such workers as were thereafter to be employed by John Holland, would have their wages and conditions governed by agreements to which they (the respondent unions) were not parties. In late January 2009, both Mr Cassells and Bradd Hamersley, Regional Industrial Relations Manager for the southern region of John Holland, had discussions about the project with representatives of the respondent unions, principally Messrs Powell, Stephenson and Mavromatis. Although he does not mention the actual date, on one occasion Mr Cassells met with Mr Mavromatis and Mr Bull. This meeting was arranged by the HR/IR Manager for Civil Pacific, Jamie McHugh. Mr Cassells gave Mr Mavromatis some broad details about the project, including the types of trades that would be working on it. A few days later, a similar meeting was held between Mr Cassells and Messrs Powell and Stephenson. Mr Cassells gave them too some general information about the project, including the trades that would be working on it, and the duration of the project. Either Mr Powell or Mr Stephenson asked whether there was any agreement (presumably, any industrial agreement) covering the project, and Mr Cassells responded that he was not part of the negotiations concerning any agreement to cover the project, and could not answer that question.
On 21 January 2009, Messrs Powell and Stephenson entered the site facility without a right of entry notice. Mr Hamersley complained to the CFMEU about that. On the following day, John Holland received a right of entry notice from the CFMEU, proposing that the right would be exercised on 23 January 2009. John Holland rejected this notice, according to Mr Hamersley, “due to membership eligibility”. That was, I gather, a reference to the operation of s 760(a) of the WR Act, which provided a right of entry, for the purposes of holding discussions with employees, only where those employees were covered by an award or collective agreement that was binding on the organisation concerned.
On 28 January 2009, Mr Hamersley met with Messrs Powell and Stephenson (at the latters’ request). Mr Stephenson had indicated that he wanted to meet in order to discuss making an agreement to cover the project. Mr Hamersley assumed that, consistently with previous practice on such projects, it was Mr Stephenson’s intention, and the intention of the CFMEU, to make any such agreement under Part 8 of the WR Act. At the meeting on 28 January 2009, Mr Hamersley said that John Holland was discussing making an agreement “with various parties”. He then informed Messrs Powell and Stephenson of a range of terms and conditions that John Holland would desire to have in an industrial agreement to cover the project. Having heard this presentation, Mr Stephenson said that what John Holland wanted was different from what the CFMEU normally had in their agreements. He said that he had no authority to agree to the types of provisions proposed by Mr Hamersley, and would refer the matter to the President of the CFMEU, Ralph Edwards.
The Civil Pacific dispute
On the morning of 3 February 2009, the respondent unions caused to be distributed to the Civil Pacific workers on the project a flyer which announced the holding of a mass meeting at 10:00 am that day. The meeting was to be held at the site facility or, if the relevant union representatives’ access thereto were denied by John Holland, at the Hyde Street gate. As things transpired, John Holland did deny Messrs Mavromatis, Powell and Stephenson entry to the site facility. At that time, there was a discussion between those men and Mr Cassells, in the course of which Mr Mavromatis said that John Holland “had better start working with” the respondent unions, adding that, if it did not, things would get “very hot”. Mr Cassells said that he would not stop the workforce from attending the meeting called by the respondent unions. The meeting proceeded at the gate to the site facility and was attended by about 15 Civil Pacific employees. I infer that the meeting took place during those employees’ morning break.
As reported by Mr Stephenson to Mr Hamersley at about lunch time on 3 February 2009, the Civil Pacific workers had, at their meeting, rejected the notion that they should be represented by the AWU and had said that they wanted to be represented by the respondent unions. They wanted John Holland to enter into bargaining negotiations with the respondent unions to make an industrial agreement for the project. On the same day, Mr Stephenson signed a letter, written on behalf of the respondent unions, requesting a meeting with John Holland to discuss an industrial agreement at the project. He said that it was the unions’ intention to report back to their members on 5 February 2009 at 10:00 am. He attached a copy of the resolution passed at the meeting of Civil Pacific workers that morning. It was as follows:
This meeting of AMWU (Metals) and CFMEU members calls on John Holland Pty. Ltd. to enter into immediate and meaningful discussions with our two unions regarding a West Gate Bridge Strengthening project agreement.
Furthermore, having heard a report from the AWU regarding their discussions with the company, we completely reject the notion that the AWU have any rights of representation on this job.
At 10:00 am on 5 February 2009, Messrs Powell and Mavromatis conducted a meeting of the Civil Pacific workers outside the Hyde Street entrance to the site facility. Of the 30 Civil Pacific workers on site that day, 24 attended the meeting. At 10:30 am (the appointed time for resumption of work after the morning break) three of those workers returned to work on the site. The other 21 workers remained meeting with Messrs Powell and Mavromatis until about 11:00 am, when they returned to work. As they returned, Mr Cassells informed them that John Holland would be speaking to Civil Pacific and to the Australian Building and Construction Commission (“the ABCC”) about the matter. Those 21 workers did not resume work but left the site. They remained absent from work for the remainder of that day. Although there was no direct evidence as to why those workers acted in this way, my attention was drawn to the provisions of s 507(2)(a) of the WR Act, the effect of which would seem to be that, because they were 30 minutes late back from their morning break, their employer was obliged to withhold four hours’ pay from them in relation to that day. One possible inference as to why they did not return to work was that, having heard Mr Cassells’ intimation that he would inform Civil Pacific and the ABCC of their failure to return to work promptly after their break, they took the view that, if they were not to be paid for the ensuing three and a half hours, they did not propose to work them.
The applicant obtained, on subpoena, records of calls made from the mobile telephones of the individual respondents and of a number of other persons whose involvement in such communications was considered to be relevant. From those records, it appears that Messrs Mavromatis, Powell and Stephenson were in contact with both the management and some employees of Civil Pacific after the meeting on 5 February 2009. Very shortly after the conclusion of the meeting, Mr Mavromatis made telephone contact with Dean Cheney, an employee of Civil Pacific. On three occasions between 11:57 am and 2:40 pm on that day, Mr Mavromatis spoke to Mr McHugh by telephone. At 2:50 pm and 2:53 pm, Mr Powell spoke by telephone with Barry Slaven and Canice Lynch (respectively), each an employee of Civil Pacific. At 6:41 pm, Mr Mavromatis had a long telephone conversation with Mr McHugh. In the absence of any evidence from the respondents, I would infer that, in the telephone conversations with Mr McHugh, Mr Mavromatis discussed the AMWU’s objective to have Civil Pacific employees on the project covered by an agreement to which it (the AMWU) was a party. It is also a fair inference that the subject of the conversation between Mr Mavromatis and Mr Cheney, and of the conversations between Mr Powell and Messrs Slaven and Lynch, was the direct action taken by the respondent unions and their organisers the following day, to which I next turn.
The Civil Pacific employees did not attend for work at the normal starting time on 6 February 2009. Instead, a number of them participated in a picket which was established by the respondent unions at the Hyde Street entrance to the site facility. By about 6:30 am on 6 February 2009, there were about 100 people maintaining a presence outside that entrance, and a gold Holden Commodore vehicle was positioned so as to block the entrance. At about 7:00 am, Gary Marshall, General Superintendent, Southern Region, for John Holland, estimated that there were about 50 men on this picket line. They included Messrs Mavromatis and Powell. At about 7:30 am, Mr Powell telephoned Mr Marshall. Mr Marshall asked Mr Powell to remove the car that was blocking the entrance, adding that he (Powell) was stopping workers and deliveries getting to the job and that, if there were an emergency, it would be necessary to get an ambulance through. Mr Powell replied that there was enough room for an ambulance, “but that’s all you will be getting through”. He added: “This is big and if you want this to end then you better start talking to us about an agreement”.
At about 8:00 am, two portable toilets were delivered to the vicinity of the picket line at the Hyde Street entrance to the site facility. These had been ordered by the CFMEU, and Mr Powell signed for the receipt of them.
At about 9:00 am, Mr Marshall spoke to Mr Mavromatis. The conversation, as recorded by someone who was accompanying Mr Marshall at the time, was generally as follows:
Mavromatis: “We’re here to sort this out, it’s up to you guys. Just remember you brought this on yourself.”
Marshall: “We’re not worried.”
Mavromatis: “This is a big project. You’ll get bad media. See how many projects you get after this. It will be your last project.”
Marshall: “We’re not going anywhere.”
Mavromatis: “You’re colluding with the AWU and doing bad deals. You’re breaching freedom of association. This is going to be bigger than you guys can handle. You’d better come talk to us.”Despite the removal, at the request of the police, of the car blocking the Hyde Street entrance, the picket line was effective in preventing deliveries to the site facility. A number of vehicles were turned away. The respondent unions made little secret but that it was their doing and, in addition to the portable toilets to which I have referred, they had provided a camper-trailer with a barbeque for the benefit of those standing on the picket. There was neither evidence nor suggestion that any employee of Civil Pacific made any attempt to enter the site for the purpose of working. As I have said, there were some Civil Pacific employees on the picket line, and I infer that, to the extent that there were others who were not on the picket line, the latter either chose not to attend for work as part of the respondent unions’ campaign against their employer and John Holland, or took the view that it would not be in their interests to cross the picket line. As to the latter aspect, Mr Marshall gave the following evidence without objection:
Based on my experience in the civil construction industry, it is a well known and well accepted position within this industry that given the industrial strength of the CFMEU, if a sub-contractor that works in civil construction or any person that works in civil construction were to cross a CFMEU supported or endorsed picket line, the CFMEU would take steps to ensure that such sub-contractor or person did not in the future work in the civil construction industry.
On 6 February 2009, I made interim orders on the application of the applicant, operative until 4:30 pm on 12 February 2009. They restrained the respondent unions and Mr Powell from, amongst other things, preventing or hindering the access of any person or vehicle to the site facility and (with certain exceptions) from attending, from organising any person to attend, and from placing or leaving any vehicle, trailer, apparatus, equipment or thing, within 100 metres of any entrance to the site facility.
At about 6:40 am on Monday 9 February 2009, Mr McHugh rang Mr Cassells. He said that Civil Pacific had signed an agreement with the respondent unions. He said (as was the case) that the Civil Pacific workforce had voted that morning in favour of accepting the agreement. He said that the workers had resolved to return to work under the existing AWU agreement (the Civil Pacific Agreement) for three days only, to allow John Holland to review the new agreement with the respondent unions, and to decide whether to accept it. As shall become apparent presently, this related to the question whether John Holland would adjust its contract rates with Civil Pacific to reflect the making of the new agreement.
Shortly after Mr Cassells arrived at the site facility at about 6:50 am on 9 February, three employees of Civil Pacific approached him. They were Toby Paterson, Barry Slaven and Colin Faulds. They told Mr Cassells that they had been appointed spokespersons for the Civil Pacific workforce, and that he should deal through them.
At 10:14 am on 9 February 2009, Mr Hamersley returned the call of Mr McHugh. The latter said that he had struck a new agreement that covered the project with the respondent unions. He said that Civil Pacific had relationships with high-ranking union officials, and was not willing to risk those relationships for the sake of one job. He had been told by the respondent unions that they were not “dropping this” and that John Holland “was to expect a fight”. There was some discussion as to whether John Holland would accept the new agreement, and Mr Hamersley said that Civil Pacific’s own individual arrangements were up to it, and that John Holland’s decisions would be commercial in nature.
Also on 9 February 2009, Civil Pacific wrote a letter to the West Gate Bridge Strengthening Alliance, which shortly came to the attention of John Holland, announcing the making of the new industrial agreement with the respondent unions, and enclosing a copy of that agreement. In that letter, Civil Pacific sought the adjustment of its contract rates to reflect the increased costs which would flow from the making of the agreement.
On 10 February 2009, Mr Cassells met with Mr Slaven. Mr Cassells said that he needed to understand what took place at the meeting on the morning of the previous day, and what the workforce’s intentions were. Mr Slaven said that, at the meeting, the workforce were informed that Civil Pacific had signed an agreement with the respondent unions over the weekend, and were asked to accept the agreement and to return to work for a period of three days under the Civil Pacific agreement. Mr Slaven said that if John Holland did not agree to the terms of the new agreement there would be “big trouble”, and when Mr Cassells inquired what he meant by this, Mr Slaven said that the unions intended to “go national with this issue” and that the workforce fully supported it. Shortly after this conversation, Mr Powell telephoned Mr Slaven, and they spoke for nearly three minutes.
On 12 February 2009, on the application of the applicant, I extended the interim restraints which had been made on 6 February 2009, and added Mr Mavromatis as a respondent. On the same day, I made procedural orders in the Holland proceeding.
On 17 February 2009, I extended the interim restraints which had been made on 6 February 2009 pending the hearing and determination of the proceeding. At this stage, those restraints applied only to the respondent unions and to Mr Powell. I made like orders in the Holland proceeding, and Mr Mavromatis, as a respondent to that proceeding, was also bound thereby.
There is no direct evidence of the response of the West Gate Bridge Strengthening Alliance, or of John Holland, to Civil Pacific’s request for an adjustment to its contract rates, but it seems to be common ground that the request was declined. Further, I could so infer from what transpired at a meeting (of which there is direct evidence) at about 9:20 am on 2 March 2009 between Mr McHugh, Mr Cassells and the John Holland Construction Manager, Phil Cormick. Mr McHugh said that Civil Pacific could not afford to pay the rates prescribed in the agreement which it had reached with the respondent unions, given the terms of its existing arrangements with John Holland. He said that Civil Pacific was, therefore, going to sack its workforce at 10:00 am that morning. He declined Mr Cormick’s request to wait until the end of the shift that day to make the terminations.
Shortly thereafter, Mr McHugh spoke to the Civil Pacific employees who were working at the site facility. It seems that he did dismiss them from their employment at that point, as Mr Slaven subsequently told Mr Cassells that many of the employees were in shock and were not in a fit state to drive home. Mr Cassells addressed the Civil Pacific (former) employees as a group and said, amongst other things, that they could apply for direct employment with John Holland if they wanted to. Alan Foster, an industrial relations and human resources manager employed by John Holland Group Pty Ltd (which provided staff to John Holland) told the Civil Pacific workers that John Holland would go through its normal due diligence procedure in relation to hiring employees, and that they were all invited to apply for a job. He requested that they send him their resumes. Mr Slaven asked Mr Foster if John Holland would guarantee the Civil Pacific workers their jobs. Mr Foster replied that John Holland could not do this, but would go through the regular due diligence procedures when hiring new employees.
Telephone records disclose that, on 2 March 2009 after the termination of the employment of the Civil Pacific workers, there were numerous contacts as between persons whose conduct later became relevant to the matters alleged by the applicant in this proceeding. Mr McHugh spoke to Mr Powell for about three minutes; Mr Faulds spoke to Mr Mavromatis for about a minute; Mr Slaven spoke to Mr Powell (in two calls) for about two minutes; Mr Powell spoke to Mr Stephenson for about two minutes; between 10:55 am and 2:06 pm, Mr Powell spoke to Mr McHugh three times, Mr Powell spoke to Mr Slaven four times, Mr Stephenson spoke to Mr Slaven once, Mr Powell spoke to Mr Mavromatis twice, Mr Stephenson spoke to Mr Mavromatis twice and Mr Powell and Mr Stephenson either contacted or attempted to contact each other on fourteen occasions.
The events of 3-10 March 2009 at the project head office
On 3 March 2009, there commenced a concerted campaign by the respondents and others, the apparent intent of which was to disrupt normal commercial life for John Holland and those who would deal with it. On that day, the respondents’ activities were located not in the vicinity of the bridge itself, but outside the project head office. At about 7:00 am on that day, there were 30-40 people standing outside the Williamstown Road entrance to the project head office, including a number of former Civil Pacific employees, and Messrs Powell, Stephenson and Mavromatis. The people present were displaying “CFMEU” and “AMWU” flags. When Mr Foster arrived at the project head office at about 7:40 am, he recognised Mr Slaven among the group. He asked Mr Slaven, “What’s all this?” Mr Slaven replied, “The blokes want their jobs”. Mr Powell asked Mr Foster, “When are you going to give the blokes a job?”.
At about the same time, there were also about ten men standing around one of the pedestrian entrances to the project head office leading off Smith Street. Most of the men had either AMWU or CFMEU logos or badges on their clothing. Two of them, former Civil Pacific employees, asked Mr Marshall, “What are you going to do about our jobs?” Another member of the group told Mr Marshall that Mr Powell was representing them. Mr Marshall then spoke briefly to Messrs Mavromatis, Powell and Stephenson. He told them that he would like to have a meeting to discuss the picket line that was occurring there that day. Mr Powell agreed with that suggestion. As Mr Marshall was approaching the entrance to the project head office, some former Civil Pacific employees at first blocked his way, but moved slightly to allow him through, while making remarks which included: “Gary, nice to see that you’ve got a fucking job.”
Mr Marshall arranged for a meeting to be held that morning at the corporate head office at Abbotsford. That meeting took place at about 9:00 am, and was attended by Messrs Marshall, Hamersley, Cassells and Foster and Elliot Bull (an employee relations staff member) from John Holland, and by Messrs Powell, Stephenson and Mavromatis. Mr Hamersley, who chaired the meeting, asked the union representatives what was the intention of the industrial action at the project head office. Mr Stephenson responded by asking what John Holland was going to do about the jobs of the former Civil Pacific employees. Mr Marshall said that these people were not John Holland employees, and that they were free to apply for a job with John Holland. Mr Stephenson asked under what agreement would John Holland employ the workers, and Mr Hamersley responded that it would be the Southern Region Agreement. Mr Mavromatis said that the Southern Region Agreement did not cover metal work, to which Mr Hamersley, or Mr Marshall, responded that the welding scope of the project was less than 0.06% of the total project workload. Mr Mavromatis said that the Southern Region Agreement did not cover boilermakers, to which Mr Marshall responded that it did, in a classification described as “special class tradespeople”. Mr Stephenson asked, “What does that mean?”, and Mr Powell added, “It means they can hire whoever they want.” Mr Marshall responded that it did mean that, and Mr Hamersley said that, if the unions did not think that the agreement covered this type of work, “Why haven’t you taken it up with the AWU?” Mr Hamersley recalls that he said that John Holland was not interested in any demarcation dispute between unions, and that they should take such matters up with Trades Hall.
A little later in the conversation, Mr Mavromatis said that the reason for the industrial action at the project head office was the termination of the employment of the former Civil Pacific employees. Mr Hamersley said that those people were not employees of John Holland, but that they were welcome to put in applications for employment. Mr Stephenson said that John Holland was trying to restrict the freedom of association of these persons by forcing them to work under the Southern Region Agreement. While doing this, according to Mr Bull, Mr Stephenson was yelling and pointing his finger at Messrs Marshall and Hamersley. Mr Marshall said that John Holland intended to keep the Southern Region Agreement. Mr Stephenson said that the former Civil Pacific employees were entitled to choose their representation as to the agreement under which they would work. At about this point, it seems, Mr Mavromatis rose from his seat, pointed to Messrs Marshall and Hamersley and said that John Holland was playing “big balls” and forcing the Southern Region Agreement on to these workers. After Mr Mavromatis sat down, Mr Powell said to him quietly “These guys are full of shit”. There was some discussion as to whether John Holland would employ the former Civil Pacific workers, and Mr Marshall said that, if they were going to be employed, they would be employed under the Southern Region Agreement. This appeared to make Mr Powell angry. He stood up and said, “You’re all fucking telling lies”; and Mr Mavromatis stood up and said, “This is fucking bullshit”. Mr Mavromatis said that, in the construction industry in Victoria, that kind of behaviour did not happen, adding, “The industry is small and things don’t get forgotten easily”, and “You guys need to get an agreement with the AMWU and the CFMEU”. At about this point, Mr Powell said (as recalled by Mr Bull), “Right, that’s it, we’re done”, or, as recalled by Mr Hamersley, “Come on guys, let’s go, we’re wasting our time”. As the union representatives were standing up to leave, Mr Hamersley said, “Guys, I just want you to be aware…”, but before he could complete his sentence, Mr Powell intervened and said (according to Mr Hamersley) in a threatening, loud and aggressive voice, whilst pointing his finger at Mr Hamersley, “You be fucking aware!”.
This was an important meeting, because it shone a light on to the respondents’ objectives. As was made clear at the meeting, the immediate objective of the protest outside the project head office on 3 March 2009 was to secure the re-employment of the workers who had been employed by Civil Pacific. However, it was equally clear that the respondents would not countenance an expedient which involved the employment of those workers under the Southern Region Agreement. The commercial reality facing John Holland was that, at some point, the work which was to have been done by Civil Pacific (and other similar work further into the life of the project) would have to be done by someone, and the respondents well knew that. Had the respondents’ only concern been the re-employment of the former Civil Pacific employees, there would have been no controversy as to the application of the Southern Region Agreement. Indeed, it was that controversy which led to the ill-tempered termination of the meeting. It seems clear that the larger enterprise of the respondents was to secure a commitment from John Holland that it would make an agreement for work on the project to which the respondent unions would be parties.
After the meeting at Abbotsford, Messrs Powell, Stephenson and Mavromatis returned to the group of protesters outside the project head office. In the company of Messrs Mavromatis and Powell, Mr Stephenson addressed the group through a megaphone, urging them to continue with their protest, and saying things like “Stick together – we will win this” and “Continue what you are doing, keep going we will win this”. At about 11:30 am, Mr Mavromatis led a group of these protesters chanting, “What do we want? Our jobs! When do we want it? Now!”. Mr Mavromatis then walked past the office windows of the project head office, yelling “get fucked” very loudly and aggressively, whilst giving a middle finger gesture, towards the office. Mr Powell was in the vicinity at the time. Mr Paterson was also there. At one point, he stood in the middle of the road waving a union flag and yelling out, “come on lads, keep going”.
The protesters were carrying handwritten signs of about half a metre in length, bearing such messages as “Sacked by John Holland for being with a union”, “Shame John Holland” and “Sacked because we wanted a choice”. Stickers, bearing the initials of the respondent unions, and similar paraphernalia, were pasted on to the doors, windows and other panels of the project head office During the course of this day, and on other days thereabouts when the protesters were present at the project head office subsequently, some of them urinated publicly in the parkland opposite. There was usually a number of protesters sitting on the steps leading to the sliding glass doors at the entrance to the project head office, and people entering and leaving, would, on occasion, be required to walk around these protesters. At about midday on 3 March 2009, Mr Powell placed his face very close to the front (glass) entrance to the project head office, and mouthed some words which were inaudible to those inside. According to a security guard to whom these gestures were directed, Brian Lee, Mr Powell looked very angry and menacing. A female staff member of John Holland reported to Mr Marshall that, as she was attempting to enter her workplace that day, someone had said to her, “Why are you lucky enough to have a job and I haven’t?”
These kinds of activities continued on 4 March 2009. About 40 protesters gathered outside the project head office early on that day, who, in Mr Marshall’s observation of it, seemed to include fewer former Civil Pacific employees than on the previous day, but more officials of the respondent unions, including Alex Tadic and Frank O’Grady of the CFMEU. At about 7:10 am, Mr Powell arrived in a CFMEU vehicle, towing a trailer upon which a barbeque was mounted. The barbeque was shortly put to its intended use. Sunshades which had been delivered by Mr Powell, and two marquees, were erected by those present. When Mr Marshall arrived at the project head office at about 8:00 am, he saw two of the protesters urinating on the project head office building, and on the front garden. He was not able to enter the office through the front entrance, as there were about 12 people sitting on the steps. He called the police and, after they arrived, he asked them to request that the protesters move the barbeque trailer and the marquees to the other side of the road, and also that they hire a portable toilet. Mr Marshall saw the police speaking to the protesters, but, after the police left, there was no change in their behaviour. Mr Paterson removed the lock on the John Holland flag pole and hoisted a CFMEU flag. After Mr Lee opened the glass sliding doors to the project head office building to allow access for an employee, he found that the doors would not re-close. It transpired that small stickers had been placed over the light sensors of the opening mechanism of the doors. That this had been done by one of the protesters is a matter of ready inference. While he was in the course of removing these stickers, Mr Lee was aggressively abused by one of the protesters. More stickers, containing union slogans, were placed on the windows and doors of the project head office. At about midday, the protesters held a meeting in the park opposite the building, which was addressed by Messrs Mavromatis and Stephenson. Shortly thereafter, Mr Powell re-attached the barbeque trailer to the CFMEU vehicle, which then departed. Generally, the activities of the protesters on 4 March 2009 appeared to have been superintended by Messrs Powell, Stephenson and Mavromatis, and to have been calculated to vex and to insult those working for John Holland at the project head office.
Early on the morning of 6 March 2009, there were about 30-40 protesters gathered outside the project head office near the Williamstown Road entrance. When Mr Lee arrived at about 6:00 am, he noticed that dirt and tan-bark had been thrown over the steps of the entrance, and that the planter box nearby had been stripped of all its tan-bark. Protest signs had been stuck on the glass doors, and the newspaper and milk deliveries were missing. According to Mr Lee, at about 7:00 am, the barbeque and sun shades were again erected by the protesters, and one of the protesters placed a slab of beer cans against the wall of the project head office adjacent to where the sun shades had been set up. Others of the protesters availed themselves of this resource. At about 8:05 am Mr Mavromatis was seen kicking dirt out of the garden bed of the project head office, and walking inside the planter box. He removed dirt from his boots by forcefully banging them against the automatic glass doors of the project head office.
At about 10:00 am Mr Marshall arrived at the project head office, and went to enter through the side entry off Smith Street. He was heckled by a group of protesters there present. One former Civil Pacific employee in particular yelled at him while he was attempting to make his way through a crowd of about ten protesters. This person said, “You think you can get fucking scab labour on this project Gary, you’re a fucking idiot. We all know who you are. Where’s our job?” Mr Marshall replied, “We have offered all of you the opportunity to apply for a position.” The protester replied, “I wouldn’t work for the shit money you’re offering.” Mr Marshall replied, “It’s $5 an hour better than any construction job in Victoria, including Eastlink.” The protester replied, “We’ll get what we want and there will be no scab labour getting past this picket line.” Mr Powell was present at the time, and Mr Marshall said to him, “You’d better control your boys, they’re starting to get out of control.” Mr Powell replied, “You getting worried? It’s not my problem”; and he laughed. Having entered the project head office, and viewing the protesters from the inside Mr Marshall noticed some of them drinking beer. They were banging on the windows of the building, and yelling and kicking at the front door. Mr Marshall called the police, who shortly arrived and spoke to the protesters. After they had left, however, Mr Marshall observed no change in the behaviour of the protesters. On leaving the building to go to a meeting at about 12:15 pm, Mr Marshall noticed that his car had a flat tyre. Protesters nearby were laughing at him.
At about 11:45 am on 6 March 2009, Mr Powell addressed a group of about 30 or 40 of the protesters. At about 12:20 pm, the protesters packed up the barbeque and sun shades, and started to leave. Upon noticing two of the protesters handling the rope on the John Holland flag pole, Mr Lee took out his camera as if to take a photograph of them. A short time later, Mr Mavromatis, who was sitting in his car at the time, took a photograph of Mr Lee, at which time he (Mavromatis) said, “smile cunt”. He then commenced to abuse Mr Lee in words reported by the latter as:
Your whole family will be on this camera cunt….You just made it personal cunt….I’m gunna get the lot of you….I heard everything you said cunt….You’re fucking gone cunt….You’re fucked…laugh now cunt, I’ll fucking get you….Fucking coppa wanna-be….You fucking loser, you wanna get personal? You don’t know how fucked you are….You’re gone cunt, you grey haired cunt.
Mr Lee did not respond to these taunts, but turned to walk back inside the project head office. As he was doing so, Mr Mavromatis yelled at him: “You are too fucking stupid to be a copper so you had to be a security guard … Yeah, fuck off, you’re too dumb to fucking understand.” Mr Mavromatis then drove off.
According to Mr Marshall, at about 2:00 pm on 6 March 2009, (Mr Lee put the time as approximately 1:30 pm), he returned to the project head office in his car, and noticed that all the protesters, and the “remnants” of the picket line, were gone. Mr Lee recounted to him the abuse which he had received from Mr Mavromatis. At about that point, Mr Mavromatis pulled up in his car behind where Mr Marshall’s car was stopped. Mr Marshall asked Mr Mavromatis what he was doing “back here”, and Mr Mavromatis replied, “I’m watching you”. Mr Marshall made a comment to the effect that he (Mavromatis) must be bored. As Mr Mavromatis drove off, he yelled (with apparent reference to Mr Lee), “you fucking grey-haired cunt”. Still outside the project head office, Mr Marshall took a telephone call from Mr Cassells. While he was doing so, four vehicles pulled up, surrounding his car. Between three and five men emerged from each vehicle, and they appeared to be drinking from cans of beer. Within seconds, Mr Marshall was surrounded by these men. He noticed some of the former Civil Pacific workers in the group. The men began yelling and chanting. Some of them, Mr Marshall thought, were “noticeably intoxicated”. Mr Marshall terminated his phone conversation with Mr Cassells. At that point, looking across the road, he saw that Mr Mavromatis was standing beside his own vehicle with his arms crossed, laughing. The men surrounding Mr Marshall were chanting such things as “Give us our jobs and give us our rights”. He was called “cunt” and “dog” by these men. He managed to enter the project head office and telephone the police.
From his observation through the windows of the project head office, Mr Marshall could see Mr Mavromatis walk across the road with an AMWU flag. The protesters present began chanting again, and banging on the windows of the building. Some of them appeared to try to open the doors of Mr Marshall’s car. He noticed some of them looking into the car, and writing down things that appeared to be inside the car. This kind of behaviour continued for a period of about half an hour that it took the police to arrive. When the police did arrive, this group of protesters disbanded.
Mr Lee gave evidence which was, broadly, confirmatory of the evidence of Mr Marshall as to these incidents on 6 March 2009. He added further details which involved him, and one of his colleagues called Jason Williams, which had not been mentioned by Mr Marshall. After Messrs Marshall and Lee had gone into the project head office, Mr Mavromatis came up to the sliding glass doors of the building and abused him and Mr Williams, such as by calling Mr Lee “a grey-haired fucking woman”, and “ugly cunt” and a “copper wanna-be”. Mr Mavromatis said to Mr Lee, “good job you did on the steps you fucking woman” (with apparent reference to the fact that Mr Lee had earlier been obliged to sweep the tan-bark from the steps which had apparently been scattered there by the protesters). Mr Mavromatis yelled at Mr Williams, “Hey junior, what are you working with that ugly old cunt for, I tried to take a photo of him and my camera cracked”. Mr Mavromatis put the AMWU flag up to the window with his face behind it, pulling it from side to side, and up and down, and saying “peek a boo”. He said “I treat children like children”. He then poked out his tongue at Messrs Lee and Williams, and moved it in and out, according to Mr Lee, as though “mimicking a person giving cunnilingus”. Mr Mavromatis asked Mr Lee twice if he wanted to come outside saying, “Come on, you know you want to have a go” and “Come outside and have a go and see what happens, you know you want to”.
The applicant proposed that penalties of $70,000 and $17,500 should be imposed upon the CFMEU for its contraventions of ss 43 and 44, respectively, of the BCII Act over the period 11-13 March 2009. The corresponding penalties proposed in the case of the AMWU were $60,000 and $11,000 respectively. The only respect in which I have not accepted the applicant’s case is that which related to the activity of Mr Padula and his companions at the McDonalds restaurant. Although those activities were vexing, intrusive and, depending on one’s perspective, potentially intimidating, I do not consider that the omission of them from the range of conduct established as against the respondents makes any difference to the appropriateness of the penalties proposed by the applicant. I accept the applicant’s case that the respondent unions engaged in a course of conduct over the period 11-13 March 2009, the seriousness of which was to no material extent depreciated by the inability of the applicant to sheet home to them what occurred at the McDonalds restaurant. I shall, therefore, impose the penalties proposed by the applicant.
Contractor bans imposed by the CFMEU on 13 March 2009
The applicant submitted that the conduct of Mr Stephenson in contacting Mr McElligot on 12 March 2009, and his conduct, and that of Messrs Paterson and Lynch, at the meeting of the workers from McElligot’s, ET Higham and Bell Scaffolding on 13 March 2009, gave rise to contraventions of ss 38, 43 and 44 of the BCII Act. I am not satisfied that, in his conversation with Mr McElligot on 12 March 2009, Mr Stephenson contravened s 38. What Mr Stephenson said to Mr McElligot did not, in my view, amount to a ban, limitation or restriction on the performance of work. Turning to Mr Stephenson’s statements at the meeting with the contractors’ employees at the Vicroads depot on 13 March 2009, the applicant submitted that, by those statements, Mr Stephenson engaged in a ban, limitation or restriction on the performance of work on the bridge in contravention of s 38. There are two ways in which this matter can be viewed. The first is to recognise that, while he went through the motions of taking a vote at the meeting, it was Mr Stephenson who ultimately imposed the ban. On any view he engaged in the ban within the meaning of s 38. This was the applicant’s case, and I accept it. An alternative way of viewing the matter is to treat the ban as having been imposed by the workers at the meeting. If so, by his statements at the meeting, Mr Stephenson counselled and procured the imposition of the ban by the workers, and thus contravened s 38 by the operation of s 48(2). Whichever way the matter is viewed, by reason of s 69(1)(b), the conduct of Mr Stephenson was also the conduct of the CFMEU, so it too contravened s 38 of the BCII Act.
The application of ss 43 and 44 of the BCII Act to the circumstances of the meeting of workers on 13 March 2009 is more straightforward. I accept that Mr Stephenson’s whole program in relevant respects (including his telephone conversation with Mr McElligot on 12 March) amounted to “action” within the meaning of these sections. His obvious intent was to procure the cessation of the only productive work which was then being performed on the bridge. Although he gave Mr McElligot a choice to comply with his program (a choice which was, as it happens, rejected in the telephone conversation), and although he gave the workers a choice of sorts at the meeting on 13 March, Mr Stephenson had the intent of procuring the cessation of work, and the effect of his success in that regard would have been to add to the pressure on John Holland to comply with the CFMEU’s demands, and in that sense to negate choice. In this respect I would take the same approach to the matter as I did in Williams v Construction, Forestry, Mining and Energy Union (2009) 179 IR 441, 477‑478 [106]. The means employed were, on any view, illegitimate.
The applicant proposes that penalties of $40,000, $50,000 and $10,000 should be imposed on the CFMEU for its contraventions of ss 38, 44 and 43, respectively, of the BCII Act with respect to the contractor bans on 13 March 2009. He proposes that the corresponding penalties for Mr Stephenson should be $10,000, $7,000 and $2,000, respectively. There are two respects in which I have not accepted the applicant’s case in relation to these issues: the allegation that Mr Stephenson’s telephone conversation with Mr McElligot on 12 March 2009 was part of the contravening conduct, and the allegation that the bans remained in place until about 14 May 2009. These qualifications to the findings which I otherwise make in the applicant’s favour are, however, of little consequence in the overall scheme of things. I regard these bans, as imposed by Mr Stephenson on 13 March 2009, as serious. The dispute which the CFMEU had with John Holland was not the concern of the contractors’ workers. The CFMEU had no disagreement with McElligot’s or the other contractors: they were, it seems, abiding by the terms of industrial instruments which were acceptable to the CFMEU. There is evidence from which it appears that the workers who Mr Stephenson procured to cease working on the bridge project thereafter endured a period of financial hardship, as the result of lack of work. It is, in my view, most unfortunate that Mr Stephenson, and through him the CFMEU, should have chosen to use other workers as instruments in their dispute with John Holland in this way. I also regard it as illegitimate for Mr Stephenson to have interfered in the perfectly normal contractual arrangements which existed between John Holland and third parties. Save as a weapon indiscriminately used, I cannot understand why the CFMEU would not have allowed work to continue pursuant to these contracts which were, it seems, quite unobjectionable in themselves. In all the circumstances, I am prepared to accept the appropriateness of the range of penalties proposed by the applicant in relation to this course of conduct.
Miscellaneous conduct over the week 16-21 March 2009
The applicant proposed that the events to which I have referred at paras 82-104 above should be taken as a single course of conduct for present purposes. I am content to proceed in that way. The applicant submitted that each of the respondent unions contravened each of ss 43 and 44 of the BCII Act by its involvement in those events. I would have no hesitation in concluding that Messrs Powell and Stephenson were involved in those events, and that the CFMEU was likewise an actor by reason of s 69(1)(b) of the BCII Act and/or s 826(2) of the WR Act. Throughout the whole of this period there was, it seems, a continuing blockade of the entrance to the site facility, generally organised by Mr Kerin. I infer that the relationship between him and the CFMEU over the period in question was a continuation of, and was effectively the same as, that which I have found to exist with respect to the period 11-13 March 2009. Messrs Powell and Stephenson were both present among the protesters at the corporate head office on 17 March 2009, Mr Powell was at the project head office on the same day, and Mr Stephenson was at the project head office on 19 March 2009. Indeed, he was present, and seemingly in command, when the passengers in the small silver sedan were subjected to what could only have been a most frightening experience at the hands of the protesters outside the project head office on that day.
Mr Mavromatis was present, and was a conspicuous contributor, in what occurred at the corporate head office on 17 and 18 March 2009, and likewise participated in the harassment of John Holland staff at the project head office on 19 March 2009. For reasons explained above, I am also persuaded that he consented to or agreed with, the blockade of the site facility. He was observed to be in the vicinity of the respondent unions’ tent nearby, a presence which was consistent with implicit approbation of the picketers’ conduct in preventing people or vehicles having access to the site.
I am satisfied that the conduct of the unidentified persons (but, I infer, probably including Messrs Moonsamy and Cheney) at the WorkPac office at Glen Waverley on 17 and 18 March 2009 was that of the respondent unions pursuant at least to s 69(1) of the BCII Act and s 826(2) of the WR Act. The presence of the unions’ logos on the flyers then distributed makes it quite improbable that these unions did not authorise what was then done. The more difficult question is whether the conduct of the people concerned, as odious as it was in relevant respects, was unlawful, illegitimate or unconscionable, or whether, by the message communicated by the flyer, and by their conduct generally, those people did not go beyond stating the unions’ position in their dispute with John Holland, and seeking support. It was submitted on behalf of the applicant that the attendance of these people at the WorkPac office was calculated to intimidate those who worked there, particularly having regard to what had previously occurred with respect to the workers employed by WorkPac at the project head office on 10 March 2009, at the McDonalds restaurant and at the corporate head office on 11 and 12 March 2009. I accept that submission, and would add a reference to the conversation which Mr Twentyman had with one of these people to which I have referred at para 92 above. Had the intention of these people been no more than to communicate information, one of them might easily have placed the unions’ flyers on the windscreens of cars in the car park, and left a copy at the WorkPac reception desk. The presence of four men, and their continued attendance outside the office implies a more sinister purpose: the silent but potent message that WorkPac and its staff were now within the general envelope of the dispute and might, at the discretion of the respondents, have the conduct of their normal working arrangements interrupted. I am satisfied, therefore, that this conduct had the character of illegitimacy necessary to contribute to the applicant’s case with respect to the period 16-21 March 2009.
The applicant proposes that penalties of $70,000 and $17,500 should be imposed on the CFMEU for its contraventions of ss 43 and 44 over this period, and that the corresponding penalties to be imposed on the AMWU should be $65,000 and $11,000 respectively. I consider that penalties of this order are appropriate for the contraventions of ss 43 and 44 which I have found to have occurred.
The events of 30-31 March 2009 at the project head office and the site facility
The applicant grouped the events to which I have referred at paras 106-117 above as a single course of conduct, and submitted that, by its involvement in those events, the CFMEU contravened ss 43 and 44 of the BCII Act. I am not persuaded that what happened on 26 and 27 March 2009 on the aprons to the bridge itself amounted to conduct in contravention of those provisions. From all that the evidence shows, there was nothing unlawful or illegitimate about the conduct of Messrs Stephenson and Powell, or of those with whom they were apparently associated, on these days.
However, the position is very different when one comes to 30 March 2009. The object of the protesters at the project head office on that day was to prevent John Holland making any productive use of the services of the workers who had recently been inducted into the workforce. The result of the protesters’ actions was that those workers could not even be kitted out with their protective equipment for work on the bridge. The conduct of the protesters towards the workers as they were leaving the premises was illegitimate on any view, and it takes little imagination to perceive respects in which some of that conduct would most probably have been unlawful. The conduct was an example of the protesters’ attempts to leave John Holland with no choice but to employ the former Civil Pacific employees, and to make an agreement under Pt 8 of the WR Act. By reason of the telephone communications to which I have referred, and by reason of Mr Powell’s presence that day in the vicinity of the project head office, and of his observed conversations with the protesters, I infer that the conduct of the protesters was done with the agreement or consent of himself and of Mr Stephenson. The conduct was, in the circumstances, that of the CFMEU pursuant to s 826(2) of the WR Act.
With respect to 31 March 2009 at the site facility, the evidence is such that I should infer that the CFMEU was maintaining the picket line which had been in place for some time, the intent of which was to shut off supplies to the bridge project, and thus to prevent any productive work being performed on that project.
The applicant proposes that penalties of $60,000 and $14,500 be imposed on the CFMEU for its contraventions of ss 43 and 44, respectively, of the BCII Act over the period 26-31 March 2009. Although I am not persuaded that there were any contraventions on 26 or 27 March, I would regard these penalties as within the range with respect to the events of 30 and 31 March 2009. Indeed, I would regard them as within the range with respect to the events of 30 March 2009 standing alone. The conduct of the protesters at the project head office on that day was manifestly intended to intimidate. Mr Powell’s contact with the protesters, and his presence in the vicinity of the project head office, justify the inference that he was at least unconcerned as to the tactics being employed by the protesters, and content for the CFMEU to take advantage of the pressure which was thereby applied to John Holland. I shall impose the penalties proposed by the applicant.
Conduct at the project head office in the period 7-9 April 2009
The applicant proposed that the events to which I have referred at paras 118-128 above should be treated as a single course of conduct and submitted that, by their involvement in those events, the CFMEU and Messrs Powell and Stephenson contravened ss 43 and 44 of the BCII Act. I accept the applicant’s submission at both levels. It will need no further elaboration at this stage for it to be clear that those events spoke very loudly of an intent to negate the choice of John Holland on the part of Messrs Powell and Stephenson. I would have no hesitation in inferring that, between them, over the three days concerned, those two organisers procured the contraventions of ss 43 and 44 of the BCII Act which were so obviously apparent on the part of those engaging directly in the picketing activities outside the project head office. Indeed, in the case of Mr Powell on 9 April 2009, I infer that he organised the action concerned within the meaning of s 43 of the BCII Act. On any view, the conduct on each of these three days was engaged in with the consent or agreement of Messrs Stephenson and Powell, given within their apparent authority to act on behalf of the CFMEU. The conduct was, therefore, that of the CFMEU itself.
The applicant has proposed that penalties of $85,000, $12,000 and $10,000 should be imposed upon the CFMEU and Messrs Powell and Stephenson, respectively, for their contraventions of s 43 of the BCII Act during this period. The corresponding penalties suggested under s 44 are $25,000, $2,000 and $2,000. In my view, the imposition of penalties of this order is amply justified by the conduct to which I have referred. That conduct included the application of direct physical force to prevent vehicles leaving the project head office and wilful damage to property. It was characterised by a readiness – indeed, a conspicuous intent – to overwhelm the attempts of the police to secure the passage of these vehicles and to deny the ability of fellow workers to engage in their lawful occupations. No submission was made on behalf of the CFMEU and Messrs Powell and Stephenson that they were not responsible for what happened on these days. Indeed, on 9 April 2009, Mr Powell quite blatantly associated himself with the project of the protesters. I shall act in accordance with the applicant’s proposal.
Conduct at the eastern compound, and on the bridge, in the period 14-16 April 2009
The applicant proposed that the events to which I have referred at paras 129‑133 above should be treated as a single course of conduct, and submitted that, by their involvement in those events, the CFMEU and Messrs Powell and Stephenson contravened ss 43 and 44 of the BCII Act. I accept the applicant’s submission with respect to 14 and 15, but not 16, April 2009. The obvious intent of Messrs Powell and Stephenson, who represented the protesters on 14 April 2009, was to prevent John Holland carrying out any productive work, and to prevent the workers, to whose presence they objected, from working in the employment for which they had been engaged. On that day, the attempt was successful: the protesters effectively had control of Sardine Street, and John Holland yielded to the reality of the situation by opting not to bring workers on to the Eastern compound.
The intent of the protesters, and of Mr Powell who again represented them, on 15 April 2009, was the same. However, on this occasion, the police were present in sufficient numbers, and had made sufficient logistical preparations, to ensure that the protesters did not achieve their objective. Having been brought into the eastern compound by way of the back entrance, the workers secured their exit, at the appointed time, through the Sardine Street entrance, and thence along Lorimer Street, under police protection. It needs hardly to be observed that the necessity for police to be present in such numbers, simply to secure the physical means by which these workers could be moved between work sites, strongly bespeaks the readiness of Mr Powell, and the protesters with whom he was associated, to resort to means which were unlawful or illegitimate.
With respect to 16 April 2009, the evidence is not such as to enable me to infer that the protesters on the aprons of the bridge did resort – or would, in the absence of the police, have resorted – to unlawful or illegitimate means. It seems that, in the result, all that happened was much flag-waving and yelling on the side of a public highway, along which the vehicles carrying the John Holland workers passed without impediment. It is true that the police were present, but the fact is that nothing either unlawful or illegitimate – at least to the extent revealed by the applicant’s submissions – occurred on this occasion. Notwithstanding that qualification, I take the events of 16 April into account in reaching the conclusion, which I do, that everything which occurred over these three days was either organised or procured by, or at least had the consent or agreement of, both Mr Powell and Mr Stephenson. I consider that the conduct in question was that of each of them, and of the CFMEU.
The applicant has proposed that penalties $85,000, $12,000 and $12,000 should be imposed upon the CFMEU, Mr Powell and Mr Stephenson, for their respective contraventions of s 43 of the BCII Act over this period. Corresponding penalties of $25,000, $2,000 and $2,000, respectively, are proposed for the contraventions of s 44. Notwithstanding the qualification which I have expressed in relation to 16 April, I consider that these penalties are within the range for the conduct to which the applicant refers. I shall act in accordance with the applicant’s proposal.
Conduct at the eastern compound on 29 April 2009
On any view, the events of 29 April 2009 involved serious and determined conduct by each of Mr Powell, Mr Stephenson and the CFMEU to prevent John Holland bringing its workers into the eastern compound, and then to prevent it withdrawing its workers from that compound. It was only the resourcefulness of John Holland which frustrated the first part of that project. The second part was undertaken by means which were at least illegitimate. I stop short of describing the means employed as unlawful only because I have not been addressed by the applicant specifically with respect to the laws – statutory or otherwise – that might have been contravened by the protesters on this occasion. It is sufficient to point to the fact that the protesters, under the approving eye of Mr Stephenson, erected a substantial barricade to block an entrance gate to the eastern compound, and later gathered on Lorimer Street in such numbers, and by resorting to abuse and ugly gesticulations to such an extent, as must have been highly intimidatory for the John Holland workers who were the targets of those measures.
There was, I infer from the statements made by Mr Edwards to the protesters in Lorimer Street on 29 April, a view within the CFMEU that resort only to verbal abuse and gesticulations was acceptable, and ought not to be regarded as stepping outside the bounds of lawful behaviour. Whether that view was well-founded with respect to laws other than those with which I am presently concerned is a subject upon which I shall not enter. However, even at the level of abuse and gesticulations, there is a world of difference between the actions of a single person, or a small group of persons, on the one hand, and an assembly of up to 500 persons, motivated to a single objective, on the other hand. In the latter situation, the means used to express a point of view do not need to involve physical contact in order to be intimidatory. That was exactly the situation in Lorimer Street on 29 April 2009. As I have explained above in these reasons, the bringing together of such a large number of protesters at that time was the conscious doing of organisers employed by the CFMEU, most obviously Mr Powell. It is as clear as may be from his SMS messages to Messrs Slaven and Lynch on the previous evening that the attendance of large numbers at the eastern compound was regarded as a matter of importance.
Despite the effect which the protesters’ actions obviously would have had on the John Holland workers, it should not be forgotten that the real object of Messrs Powell and Stephenson, and of the CFMEU, was to prevent John Holland from carrying out work on the bridge in the absence of an industrial agreement to which the CFMEU was a party, and to force it to employ those who had previously been engaged by Civil Pacific. It is as clear as may be that, in the absence of a substantial police presence, the protesters would have physically prevented the egress of any vehicles from the eastern compound. That Messrs Powell and Stephenson, and the CFMEU, had the intent to coerce John Holland to each of the ends referred to in ss 43 and 44 of the BCII Act is, in my view, the only conclusion available on the evidence.
The applicant proposed that penalties of $85,000, $14,000 and $14,000 should be imposed upon the CFMEU, and upon Messrs Powell and Stephenson, respectively , for their contraventions of s 43 of the BCII Act on 29 April 2009. Corresponding penalties of $25,000, $3,000 and $3,000, respectively, are proposed for contraventions of s 44. In my view, the imposition of penalties of this order is amply warranted by the evidence to which I have referred. I shall act in accordance with the applicant’s proposal.
Disposition of the proceeding
I shall impose penalties in accordance with my reasons given above. For reasons stated at para 165 above, I decline the application for declaratory relief. Although permanent injunctions were sought in the Amended Application, in his final submissions the applicant did not press for any such remedy and, since the events to which the proceeding relate are now wholly in the past, I agree that no occasion for the imposition of permanent restraints arises. I shall formally dismiss the claims made by the applicant other than for the imposition of penalties and by way of costs.
The respondents requested that they be allowed 90 days within which to pay the penalties to be imposed in this proceeding. They requested this lengthy period because of the substantial sums involved. The applicant proposed that payment should be made within 30 days. There was no affidavit or other evidence from the respondents in support of their position, and, given the substantial measure of consent involved in the penalties now being imposed, and the period during which my judgment has been reserved, I must assume that the respondents have made such preparations as may be appropriate to make the necessary payments in a timely way. I shall allow until 10 September 2010.
The applicant has applied for costs. He seeks that the AMWU and Mr Mavromatis pay $50,000, and that the CFMEU and Messrs Powell and Stephenson pay $100,000, by way of costs. The respondents did not oppose the making of those orders, and they appear to be justified by the result of the proceeding. I shall make orders in those terms.
I certify that the preceding two hundred and twenty-four (224) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jessup. Associate:
Dated: 28 July 2010
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