FEDERAL COURT OF AUSTRALIA
Parker v Australian Building and Construction Commissioner [2019] FCAFC 56
Table of Corrections | |
15 April 2019 | Citation of Veen v The Queen (No 2) (1988) 164 CLR 465 corrected on cover page and at [323]. |
1 May 2019 | At [348], “is a way that” has been replaced with “in a way that”. |
ORDERS
DATE OF ORDER: |
THE COURT ORDERS THAT:
1. The parties provide, by email to the chambers of Justices Besanko, Reeves and Bromwich, agreed or competing draft orders to give effect to these reasons within 14 days.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
BESANKO AND BROMWICH JJ:
INTRODUCTION
1 In about December 2009, Lend Lease Project Management and Construction (Australia) Pty Limited was engaged by the Barangaroo Delivery Authority on behalf of the Government of New South Wales to develop a building site located at Hickson Road, Millers Point in Sydney. The development was known as the Barangaroo South Redevelopment Project. The Barangaroo Project was carried out through the Lend Lease group of companies.
2 On Thursday, 24 July 2014, the federal Construction, Forestry, Mining and Energy Union (CFMEU) and the separate New South Wales union (CFMEU NSW) called a meeting of construction workers early that morning, before the start of the working day, at the building site for the Barangaroo Project. The meeting was called in response to the suspension by a Lend Lease company of Mr Peter Genovese, a union health and safety delegate at the site. Speeches were made at the meeting and a vote taken to go on strike until the following Monday. Following the meeting, a large number of site employees did not attend work that day. During the course of that day, the company obtained orders from the Fair Work Commission requiring a return to work. The next morning, Friday, 25 July 2014, a further vote was taken at a second meeting to return to work. Some workers did not attend work that second day, and others started work late that day.
3 The regulator, now the Australian Building and Construction Commissioner, subsequently brought a civil penalty proceeding in this Court for contraventions of the Fair Work Act 2009 (Cth) (Act) arising out of the events of 24 and 25 July 2014 (the first day and the second day). The respondents were the two Unions, Mr Genovese, and nine other individuals who were all members of both Unions and held official positions with either or both Unions. The first respondent, Mr Brian Parker, was the NSW Divisional Branch Secretary and State Secretary of the CFMEU and State Secretary of the CFMEU NSW. All 12 respondents at their trial denied that what took place on the two days constituted any contravention of the Act by any of them.
4 The following provisions of the Act were alleged by the Commissioner before the primary judge to have been contravened by the individual respondents:
(1) s 50, which provides that a person is not to contravene a term of an enterprise agreement – in this case, the conflict resolution provisions in the applicable enterprise agreement;
(2) s 348, which prohibits a person from organising or taking any action with intent to coerce another person to “engage in industrial activity”, as widely defined in s 347 to include “industrial action”;
(3) s 355, which relevantly provides that a person is not to organise or take any action against another person with intent to coerce the other person, or a third person, to take certain actions; and
(4) s 417, which relevantly provides that no officer of an employee organisation covered by an enterprise agreement is to “organise or engage in industrial action”, as defined in s 19(1), from the approval date of that agreement until its nominal expiry date – in this case, there were enterprise agreements covering employees at the building site that had nominal expiry dates in 2016.
5 The Commissioner alleged:
(1) that the CFMEU and the CFMEU NSW were, by the operation of s 793 of the Act, vicariously liable for the acts of the individual respondents and that each of the individual respondents were also liable as accessories to certain aspects of the conduct of their individual respondent colleagues;
(2) that the activity and action that took place on both the first day and the second day were contrary to conflict resolution provisions in the applicable enterprise agreement reproduced at [23] below, which stipulate that work is to continue while those provisions are put into effect, rather than initiating industrial action or industrial activity that results in work stopping, or not resuming; and
(3) that the means by which the industrial action or activity was brought about and continued, or sought to be continued, was contrary to the abovementioned provisions of the Act that proscribe coercion to bring about such activity and action; and that the very taking of industrial action during the currency of an enterprise agreement was itself a contravention (unless carried out as provided for by the Act).
6 The primary judge delivered separate liability and penalty judgments: Australian Building and Construction Commissioner v Parker [2017] FCA 564; 266 IR 340; and Australian Building and Construction Commissioner v Parker (No 2) [2017] FCA 1082; 270 IR 165, respectively. The contravention allegations were grouped around events at different points in time in a manner described in the liability judgment as the following three separate, but not entirely distinct, stages, using the definitions deployed by the Commissioner in his pleadings for convenience:
(1) Blocking Action, being action to block access to the site that commenced at about 5.45 am on the first day (24 July 2014), preceding a meeting of workers near the main entrance to the Barangaroo site;
(2) Stop Work Action, comprising a meeting of workers held between about 6.30 am and 7.00 am (Stop Work Meeting) on the first day, and the passing of a resolution to stop work in support of Mr Genovese, who had been suspended, until the following Monday, 28 July 2014 (Stop Work Resolution); and
(3) Enforcement Action, namely conduct that followed the Stop Work Meeting in aid of compliance with the Stop Work Resolution.
7 On the Commissioner’s case before the primary judge, about 1,000 employees at the site failed or refused to attend for work at all on the first day (24 July 2014) and about 300 employees did the same on the second day (25 July 2014), albeit some for only a short time. Those employees were referred to in the Commissioner’s pleadings as the Stop Work Employees. The usual workforce at the site was in the order of 1,100 to 1,200 workers.
8 The primary judge struck out a part of the Commissioner’s pleadings, found for the Commissioner on many, but not all, contraventions, dismissed other claims, made declarations of contravention and ordered the payment of penalties ranging from $3,000 to $1,326,000, totalling in excess of $2 million. His Honour also ordered the CFMEU to publish a particular advertisement concerning the conduct that had taken place. Only the case against Mr Genovese wholly failed.
9 The Unions are now the Construction, Forestry, Maritime, Mining & Energy Union (CFMMEU) and the CFMMEU NSW, following a union merger that took place after the primary judge’s liability and penalty decisions. Despite that change of name, it is convenient in these reasons to refer to each Union by the pre-merger names in use in 2014, at trial and in his Honour’s liability and penalty judgments.
10 Eleven of the 12 respondents below – that is, apart from Mr Genovese, who was not found liable – appeal from the liability and penalty orders by way of a detailed amended notice of appeal, with 22 grounds of appeal ultimately being pressed. As part of those grounds, the CFMMEU appeals against the publication order made by his Honour. The Commissioner cross-appeals against the striking out of parts of his pleadings, and the dismissal of some of the claims against some of the individual respondents (and consequently against the Unions), and further relies upon a notice of contention to defend certain challenged findings of the primary judge on alternative grounds.
THE NATURAL PERSON RESPONDENTS BELOW, NOW APPELLANTS
11 The primary judge summarised who each of the 10 natural respondents before his Honour were, including their roles with the Unions, as follows, noting that some took a more active role in the events than others:
Respondent | Positions held |
Mr Brian Parker, first respondent (and first appellant) | A member of the CFMEU and CFMEU NSW State Secretary of the CFMEU NSW NSW Divisional Branch Secretary and State Secretary of the CFMEU Divisional Trustee and National Executive Committee member of the CFMEU |
Mr Robert Kera, second respondent (and second appellant) | A member of the CFMEU and CFMEU NSW State Joint Vice-President of the CFMEU NSW NSW Divisional Branch Assistant Secretary of the Construction and General Division of the CFMEU NSW |
Mr Danny Reeves, third respondent (and third appellant) | A member of the CFMEU and CFMEU NSW A member of the Divisional Management Committee of the CFMEU and CFMEU NSW An employee of Lend Lease Building Pty Ltd A delegate of the CFMEU and CFMEU NSW on the Barangaroo Project site |
Mr Peter Genovese, fourth respondent (not an appellant as no findings of contravention were made against him, such that there is no fourth appellant) | A member of the CFMEU and CFMEU NSW A member of the Divisional Management Committee of the CFMEU and CFMEU NSW An employee of Lend Lease Building, suspended with pay from 26 March 2014 A delegate of the CFMEU and CFMEU NSW on the Barangaroo Project site |
Mr Michael Greenfield, fifth respondent (and fifth appellant) | A member of the CFMEU and CFMEU NSW Held appointment and was employed as an Organiser by the CFMEU and CFMEU NSW |
Mr Luke Collier, sixth respondent (and sixth appellant) | A member of the CFMEU and CFMEU NSW Held appointment and was employed as an Organiser by the CFMEU and CFMEU NSW |
Mr Darren Greenfield, seventh respondent (and seventh appellant) | A member of the CFMEU and CFMEU NSW Held appointment and was employed as an Organiser by the CFMEU and CFMEU NSW |
Mr Anthony (Tony) Sloane, eighth respondent (and eighth appellant) | A member of the CFMEU and CFMEU NSW Held appointment and was employed as an Organiser by the CFMEU and CFMEU NSW |
Mr Darren Taylor, ninth respondent (and ninth appellant) | A member of the CFMEU and CFMEU NSW Held appointment and was employed as an Organiser by the CFMEU and CFMEU NSW |
Mr Richard Auimatagi, tenth respondent (and tenth appellant) | A member of the CFMEU and CFMEU NSW Held appointment and was employed as an Organiser by the CFMEU and CFMEU NSW |
Introduction
12 The primary judge described the events as they unfolded over the two days as “tumultuous”, with many workers participating, a number of officials from the CFMEU/CFMEU NSW in attendance, police (to which may be added workplace inspectors) being called and attending, and at least one neighbour in the vicinity being disrupted by the noise created.
13 Defences were initially filed that claimed privilege against self-incrimination. They were only replaced with amended defences and an evidentiary case for the original respondents after the close of the Commissioner’s case, a stance that the respondents were entitled to take. An unsuccessful stay application was made by Mr Collier by reason of separate criminal proceedings pending against him. Numerous pleading amendment applications were made by the Commissioner, some of which were contested.
14 The trial ran for 10 hearing days between mid-July and mid-December 2016. The primary judge’s liability reasons were lengthy and detailed, but necessarily could not anticipate every issue now raised in this appeal proceeding. His Honour’s penalty reasons were less detailed but necessarily were to be read with the liability judgment.
15 The hearing below concerned a confined set of activities over a relatively short period of time that spawned a wide-ranging and complex dispute, both legally and factually. That has continued in this appeal proceeding. In that context, many of the facts found and findings made by the primary judge require close consideration for the resolution of the competing arguments.
The building site, building companies, subcontractors and workers
16 The Barangaroo Project, as at July 2014, comprised construction of three commercial office towers, two residential towers and a commercial building. At that time, there were three entities within the Lend Lease group of companies working on the Site:
(1) Lend Lease Building Pty Ltd (defined in the pleadings somewhat ambiguously as Lend Lease), formerly known as Lend Lease Project Management and Construction (Australia) Pty Ltd;
(2) Lend Lease Structures Pty Ltd; and
(3) Lend Lease Infrastructure Services Pty Ltd, known by the time of the trial as Lend Lease Services Pty Ltd.
17 In addition to the Lend Lease entities, there were also a number of subcontractors engaged on the Barangaroo Project.
18 The working hours on the site were from 7.00 am to 7.00 pm, Monday to Friday and from 7.00 am to 5.00 pm on Saturdays. There was usually a meeting prior to the start of work, commencing at about 6.30 am or 7.00 am, between management of the Lend Lease entities and construction workers.
19 More than 1,100 workers were on the site on 23 July 2014, the day before the first day. That attendance figure was one of the numbers of workers on the site used to benchmark the impact of the alleged conduct, in terms of the estimated number of employees at the site not turning up for work.
20 The main site access point had a covered walkway that led to three turnstiles. It was the only entrance to the site open at 7.00 am. The other access points behind Towers 1, 2 and 3 only opened after 7.00 am. They each had a turnstile, but before 7.00 am the turnstile was blocked by a gate closed with a padlock. It is the main site access point that is referred to in these reasons. The meetings on the first and second day took place just outside the site, near the main site access point.
21 The employees of Lend Lease Building were covered by an enterprise agreement called the Lend Lease Project Management & Construction/CFMEU Joint Development Agreement Mark 8 2012-2016, also referred to as the “JDA”. The employees of Lend Lease Structures were covered by an enterprise agreement called the Lend Lease Structures Pty Ltd/CFMEU Greenfields Collective Agreement 2012-2016, approved by Fair Work Australia on 7 November 2012 with a nominal expiry date of 1 October 2016.
22 Clauses 19.1 and 20 of the Joint Development Agreement were relevant to the Commissioner’s case in respect of alleged breaches of that agreement and the contraventions alleged in relation to s 50 and s 347. The Commissioner, as noted above at [6], characterised the conduct on which those allegations were based as Blocking Action, Stop Work Action, the passing of a Stop Work Resolution and Enforcement Action (the latter being conduct which followed the Stop Work Meeting). This conduct was alleged to depart from what was provided for in the agreement in respect of conflict resolution and the continuance of work pending such resolution.
23 The relevant clauses of the Joint Development Agreement were as follows:
19. Conflict Resolution
19.1 The Parties recognise that one of the aims of the Agreement is to eliminate lost time in the event of a dispute and to achieve prompt resolution. The most effective procedure is for the responsibility for resolution to remain as close to the source of the dispute as possible. To this end, the following processes are agreed:
(a) Disputes Procedure
In the event of a dispute occurring, the following procedure will be adopted:
(i) Discussion between those directly affected;
(ii) Discussion on the project between the site management and the Employee affected or a representative nominated by the Employee (including Union delegate);
(iii) Discussion between senior Company management and the Employee affected, or if nominated by the Employee their Representative or appropriate Union official;
(iv) The relevant Union official commits to make him/herself available to be involved at any stage of the procedure as required, or in respect of any potential dispute. The Company agrees to facilitating access to the project for the relevant Union official to represent Employees under this procedure subject to the Union official complying with all site rules and reasonable requests and reasonable directions of site management.
A dispute will not be referred to the next level of the above procedure until a genuine attempt to resolve the matter has been made at the appropriate level.
(b) Reference to the relevant State Board or Panel.
If the dispute occurs in Victoria or Queensland, and still exists after the above disputes procedure either party may refer the dispute to a State Industry Dispute Panel or Board constituted under Australian Government or State law. This sub-clause does not prevent any of the parties to the dispute from referring the dispute to Fair Work Australia (FWA) either before or after any decision or recommendation of the State Board or Panel. If the matter has been referred to a State Industry Dispute Panel or Board constituted under Australian Government or State law, once a decision has been handed down the matter may be referred by either party to FWA within 14 days.
(c) Reference to Fair Work Australia
A dispute may be referred to FWA for conciliation and if required, arbitration, in either of the following circumstances:
(i) If the dispute still exists after the above disputes procedure has been carried out, the dispute may be referred by any of the parties to the dispute to FWA; or
(ii) If any party to the dispute refuses or fails to follow any step of the above disputes procedure the non breaching party will not be obligated to continue through the remaining steps and may immediately refer the matter to FWA.
(d) Notices of Disputes
Should a dispute arise and it does not appear to be one which can be settled immediately, the party raising the matter will notify the other party or parties by telephone within 48 hours of the dispute arising and confirm it in writing.
20. Work Continuity
Work shall continue without interruption or dislocation during discussion and resolution of disputes.
Acts Interpretation Act 1901 (Cth)
24 Section 2C(1) of the Acts Interpretation Act 1901 (Cth) provides:
In any Act, expressions used to denote persons generally (such as “person”, “party”, “someone”, “anyone”, “no-one”, “one”, “another” and “whoever”), include a body politic or corporate as well as an individual.
Fair Work Act 2009 (Cth) (Act)
25 The following provisions of the Act are relevant:
12 The Dictionary
…
enterprise agreement means:
(a) a single-enterprise agreement; or
(b) a multi-enterprise agreement.
…
single-enterprise agreement means an enterprise agreement made as referred to in subsection 172(2). [reproduced below]
...
19 Meaning of industrial action
(1) Industrial action means action of any of the following kinds:
(a) the performance of work by an employee in a manner different from that in which it is customarily performed, or the adoption of a practice in relation to work by an employee, the result of which is a restriction or limitation on, or a delay in, the performance of the work;
(b) a ban, limitation or restriction on the performance of work by an employee or on the acceptance of or offering for work by an employee;
(c) a failure or refusal by employees to attend for work or a failure or refusal to perform any work at all by employees who attend for work;
(d) the lockout of employees from their employment by the employer of the employees.
Note: In Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v The Age Company Limited, PR946290, the Full Bench of the Australian Industrial Relations Commission considered the nature of industrial action and noted that action will not be industrial in character if it stands completely outside the area of disputation and bargaining.
(2) However, industrial action does not include the following:
(a) action by employees that is authorised or agreed to by the employer of the employees;
(b) action by an employer that is authorised or agreed to by, or on behalf of, employees of the employer;
(c) action by an employee if:
(i) the action was based on a reasonable concern of the employee about an imminent risk to his or her health or safety; and
(ii) the employee did not unreasonably fail to comply with a direction of his or her employer to perform other available work, whether at the same or another workplace, that was safe and appropriate for the employee to perform.
(3) An employer locks out employees from their employment if the employer prevents the employees from performing work under their contracts of employment without terminating those contracts.
Note: In this section, employee and employer have their ordinary meanings (see section 11).
50 Contravening an enterprise agreement
A person must not contravene a term of an enterprise agreement.
Note 1: This section is a civil remedy provision (see Part 4-1).
Note 2: A person does not contravene a term of an enterprise agreement unless the agreement applies to the person: see subsection 51(1).
51 The significance of an enterprise agreement applying to a person
(1) An enterprise agreement does not impose obligations on a person, and a person does not contravene a term of an enterprise agreement, unless the agreement applies to the person.
(2) An enterprise agreement does not give a person an entitlement unless the agreement applies to the person.
172 Making an enterprise agreement
…
Single-enterprise agreements
(2) An employer, or 2 or more employers that are single interest employers, may make an enterprise agreement (a single-enterprise agreement):
(a) with the employees who are employed at the time the agreement is made and who will be covered by the agreement; or
(b) with one or more relevant employee organisations if:
(i) the agreement relates to a genuine new enterprise that the employer or employers are establishing or propose to establish; and
(ii) the employer or employers have not employed any of the persons who will be necessary for the normal conduct of that enterprise and will be covered by the agreement.
Note: The expression genuine new enterprise includes a genuine new business, activity, project or undertaking (see the definition of enterprise in section 12).
347 Meaning of engages in industrial activity
A person engages in industrial activity if the person:
(a) becomes or does not become, or remains or ceases to be, an officer or member of an industrial association; or
(b) does, or does not:
(i) become involved in establishing an industrial association; or
(ii) organise or promote a lawful activity for, or on behalf of, an industrial association; or
(iii) encourage, or participate in, a lawful activity organised or promoted by an industrial association; or
(iv) comply with a lawful request made by, or requirement of, an industrial association; or
(v) represent or advance the views, claims or interests of an industrial association; or
(vi) pay a fee (however described) to an industrial association, or to someone in lieu of an industrial association; or
(vii) seek to be represented by an industrial association; or
(c) organises or promotes an unlawful activity for, or on behalf of, an industrial association; or
(d) encourages, or participates in, an unlawful activity organised or promoted by an industrial association; or
(e) complies with an unlawful request made by, or requirement of, an industrial association; or
(f) takes part in industrial action; or
(g) makes a payment:
(i) that, because of Division 9 of Part 3-3 (which deals with payments relating to periods of industrial action), an employer must not pay; or
(ii) to which an employee is not entitled because of that Division.
348 Coercion
A person must not organise or take, or threaten to organise or take, any action against another person with intent to coerce the other person, or a third person, to engage in industrial activity.
Note: This section is a civil remedy provision (see Part 4-1).
355 Coercion – allocation of duties etc. to particular person
A person must not organise or take, or threaten to organise or take, any action against another person with intent to coerce the other person, or a third person, to:
(a) employ, or not employ, a particular person; or
(b) engage, or not engage, a particular independent contractor; or
(c) allocate, or not allocate, particular duties or responsibilities to a particular employee or independent contractor; or
(d) designate a particular employee or independent contractor as having, or not having, particular duties or responsibilities.
Note: This section is a civil remedy provision (see Part 4-1).
360 Multiple reasons for action
For the purposes of this Part, a person takes action for a particular reason if the reasons for the action include that reason.
361 Reason for action to be presumed unless proved otherwise
(1) If:
(a) in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and
(b) taking that action for that reason or with that intent would constitute a contravention of this Part;
it is presumed that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.
(2) Subsection (1) does not apply in relation to orders for an interim injunction.
417 Industrial action must not be organised or engaged in before nominal expiry date of enterprise agreement etc.
No industrial action
(1) A person referred to in subsection (2) must not organise or engage in industrial action from the day on which:
(a) an enterprise agreement is approved by the FWC until its nominal expiry date has passed; or
(b) a workplace determination comes into operation until its nominal expiry date has passed;
whether or not the industrial action relates to a matter dealt with in the agreement or determination.
Note: This subsection is a civil remedy provision (see Part 4-1).
(2) The persons are:
(a) an employer, employee, or employee organisation, who is covered by the agreement or determination; or
(b) an officer of an employee organisation that is covered by the agreement or determination, acting in that capacity.
Injunctions and other orders
(3) If a person contravenes subsection (1), the Federal Court or Federal Circuit Court may do either or both of the following:
(a) grant an injunction under this subsection;
(b) make any other order under subsection 545(1);
that the court considers necessary to stop, or remedy the effects of, the contravention.
(4) The court may grant an injunction under subsection (3) only on application by a person referred to in column 2 of item 14 of the table in subsection 539(2).
(5) Despite subsection 545(4), the court may make any other order under subsection 545(1) only on application by a person referred to in column 2 of item 14 of the table in subsection 539(2).
Note: Section 539 deals with applications for orders in relation to contraventions of civil remedy provisions.
550 Involvement in contravention treated in same way as actual contravention
(1) A person who is involved in a contravention of a civil remedy provision is taken to have contravened that provision.
Note: If a person (the involved person) is taken under this subsection to have contravened a civil remedy provision, the involved person’s contravention may be a serious contravention (see subsection 557A(5A)). Serious contraventions attract higher maximum penalties (see subsection 539(2)).
(2) A person is involved in a contravention of a civil remedy provision if, and only if, the person:
(a) has aided, abetted, counselled or procured the contravention; or
(b) has induced the contravention, whether by threats or promises or otherwise; or
(c) has been in any way, by act or omission, directly or indirectly, knowingly concerned in or party to the contravention; or
(d) has conspired with others to effect the contravention.
793 Liability of bodies corporate
Conduct of a body corporate
(1) Any conduct engaged in on behalf of a body corporate:
(a) by an officer, employee or agent (an official) of the body within the scope of his or her actual or apparent authority; or
(b) by any other person at the direction or with the consent or agreement (whether express or implied) of an official of the body, if the giving of the direction, consent or agreement is within the scope of the actual or apparent authority of the official;
is taken, for the purposes of this Act and the procedural rules, to have been engaged in also by the body.
State of mind of a body corporate
(2) If, for the purposes of this Act or the procedural rules, it is necessary to establish the state of mind of a body corporate in relation to particular conduct, it is enough to show:
(a) that the conduct was engaged in by a person referred to in paragraph (1)(a) or (b); and
(b) that the person had that state of mind.
Meaning of state of mind
(3) The state of mind of a person includes:
(a) the knowledge, intention, opinion, belief or purpose of the person; and
(b) the person’s reasons for the intention, opinion, belief or purpose.
Disapplication of Part 2.5 of the Criminal Code
(4) Part 2.5 of Chapter 2 of the Criminal Code does not apply to an offence against this Act.
Note: Part 2.5 of the Criminal Code deals with corporate criminal responsibility.
(5) In this section, employee has its ordinary meaning.
26 The outcome of the proceeding turned largely on the allegations made against the individual respondents, being the wellspring for liability on the part of the two Unions.
27 As to the Blocking Action, the Commissioner alleged that eight of the 10 individual respondents (excluding Messrs Michael Greenfield and Auimatagi), attended the site as CFMEU officers at approximately 5.45 am on the first day (24 July 2014) and positioned themselves to block access to the site. The conduct was particularised as:
(1) wearing hooded jumpers with CFMEU labels and standing in front of the site access point;
(2) positioning themselves such that employees of Lend Lease Building and of subcontractors, who were defined as site employees, would have to move through that group of CFMEU officers, or in close proximity to them, in order to access the site;
(3) advising employees approaching the site access point, using terms that were pleaded, that the site was shut, that there was no work that day and that there was to be a meeting at a forecourt that was just outside the site (Stop Work Meeting);
(4) effectively dissuading, preventing or obstructing a number of site employees, by nature of the presence of the group of CFMEU officers and the statements made by them, from using the site access point and attending usual pre-start meetings as part of attending for work; and
(5) organising or taking action against the site employees and against Lend Lease Building.
28 As to the Stop Work Action (comprising the Stop Work Meeting and Stop Work Resolution), the Commissioner alleged that:
(1) between about 6.30 am and 7.00 am on the first day (24 July 2014), all 10 individual respondents, as CFMEU officers, and between 600 and 1,000 site employees, attended a meeting at the forecourt that was just outside the site at approximately 5.45 am;
(2) Messrs Parker, Kera, Genovese and Reeves spoke in favour of stop work action against Lend Lease Building (words to the effect of what was said by Messrs Parker, Kera, Genovese and Reeves were pleaded);
(3) Mr Parker called for a vote by the site employees present on a resolution to the effect that site employees would cease work at the site until the following Monday, 28 July 2014 (Stop Work Resolution);
(4) the stated purpose of the Stop Work Resolution was to support a demand that Mr Genovese be reinstated and to place pressure on Lend Lease Building to reinstate him to his former position and duties;
(5) this was conduct organised or taken against site employees who did not vote for the Stop Work Resolution, and against Lend Lease Building; and
(6) none of the site employees at the meeting, or, alternatively, very few of them, voted against the Stop Work Resolution.
29 As to the Enforcement Action (comprising conduct to enforce the Stop Work Resolution), the Commissioner alleged that:
(1) after the Stop Work Meeting, all 10 individual respondents acted to ensure that site employees complied with the Stop Work Resolution and to prevent them from acting contrary to that resolution, this being conduct that was particularised as:
(a) a number of CFMEU officers, comprising all 10 individual respondents, stood in front of the site access point;
(b) that positioning meant that site employees would have to move through that group of CFMEU officers, or in close proximity to them, in order to access the site;
(c) when site employees approached the site access, the CFMEU officers questioned them as to where they were going and told them that the site was closed as a result of the Stop Work Resolution; and
(d) some of the site employees were abused, with some of the words uttered having been particularised;
(2) also after the Stop Work Meeting, Messrs Parker and Collier, in the presence of site employees, verbally accosted and abused certain officials visiting the site, being NSW police officers and inspectors from the Fair Work Building Inspectorate, with some of the words uttered having been particularised and Mr Parker’s conduct also having been particularised as loud, aggressive and intimidating;
(3) the above actions were organised or taken against the site employees, the police, the inspectors and Lend Lease Building.
30 The Commissioner alleged that on the next, second day (25 July 2014), at about 6.30 am, nine of the 10 individual respondents (excluding Mr Genovese) mustered outside the site access point, resumed blocking access, and called, organised and convened a further meeting of the Stop Work Employees for the purpose of communicating to them the making of s 418 orders by the Fair Work Commission. Seven of those nine individual respondents, being Messrs Parker, Kera, Reeves, Michael Greenfield, Collier, Darren Greenfield and Taylor, continued their conduct from the first day. The Commissioner pleaded particulars of what each was alleged to have said or done prior to and during the meeting by way of invitation, encouragement, intimidation or threats, or vilification or abuse of inspectors lawfully attending the site.
31 The Commissioner alleged that as a result of the conduct pleaded as described above, many site employees attended the Stop Work Meeting, about 1,000 employees did not attend work on the first day (24 July 2014), and about 300 employees did not attend work on the second day (25 July 2014). As noted above at [19], the number that attended work on 23 July 2014 was about 1,100, although it seems that the total number of employees was at times as many as 1,200. Lend Lease Building was deprived of the work that could have been performed by the absent workers on both days. The Commissioner alleged that the Stop Work Employees contravened the dispute resolution and continuation of work clauses in the Joint Development Agreement.
32 The Commissioner also alleged that the Stop Work Employees (which included Mr Reeves, who was the only current employee of Lend Lease Building among the individual respondents) engaged in “industrial action”, as defined in s 19(1)(b) and (c) of the Act, and in “industrial activity” by nature of taking part in “industrial action” as per s 347(f), by refusing or failing to attend work and instead attending the Stop Work Meeting, by passing the Stop Work Resolution, which constituted a ban, limitation or restriction on the performance of work at the site by the site employees, and by acting in accordance with the Stop Work Resolution by failing or refusing to attend work or perform any work on both days. The Commissioner alleged that this industrial action took place prior to the expiry of the relevant enterprise agreements.
33 The Commissioner alleged that the conduct pleaded as described above gave rise to various contraventions of the Act by the individual respondents, accessorial liability for the conduct of each individual respondent in the aid of certain other individual respondents, and contraventions by the Unions as a matter of vicarious or accessorial liability. The precise nature of the alleged individual contraventions depended on the conduct pleaded against each individual respondent by way of their particular participation in the Blocking Action, the Stop Work Action or the Enforcement Action. It also depended on who that pleaded conduct was characterised as being directed to, such as one or more of the site employees, Lend Lease Building, police or inspectors.
34 The Commissioner alleged against the individual respondents (and the Union respondents by way of vicarious or accessorial liability):
(1) intent to coerce the site employees to engage in unprotected industrial action constituting proscribed industrial activity and/or proscribed industrial action by participating in stopping work, in contravention of s 348;
(2) intent to coerce Lend Lease Building to allocate particular duties and responsibilities to Mr Genovese or to designate Mr Genovese as having particular duties or responsibilities, in contravention of s 355;
(3) organising industrial action by the Stop Work Employees, in contravention of s 417, or, in the alternative, advising, encouraging or inciting the Stop Work Employees to organise or engage in industrial action at the site on 24 and 25 July 2014, and, by reason of s 362, to be taken to have contravened s 355;
(4) failing to initiate and engage in the dispute resolution procedure required by cl 19 of the Joint Development Agreement, breaching cl 20 of the Joint Development Agreement and, thereby, contravening s 50 (as an employee and as a CFMEU official in the case of Mr Reeves, and as a CFMEU official in the case of the other nine individual respondents); and
(5) in the case of Mr Reeves only, because he was the only respondent who was also an employee and who himself did not attend work, engaging in industrial action in contravention of s 417 and, in breaching the terms of the Joint Development Agreement, contravening s 50.
35 The primary judge observed in the liability judgment (at [133]) that:
(1) although the final form of the Commissioner’s pleadings divides the events of the first day (24 July 2014) into:
(a) the Blocking Action, commencing at about 5.45 am;
(b) the Stop Work Action, comprising a Stop Work Meeting held between 6.30 am and 7.00 am, during which a Stop Work Resolution was passed; and
(c) the Enforcement Action, being conduct which followed the Stop Work Meeting,
the evidence did not universally fall neatly into these periods;
(2) individual witnesses did not necessarily allocate the same event to the same time period, but this did not preclude findings being made that satisfied the demands of s 140(2) of the Evidence Act 1995 (Cth); and
(3) such differences in the accounts between witnesses would need to be given scrutiny.
36 The above approach to fact-finding by the primary judge indicates that this is the sort of case in which the factual findings ultimately made by his Honour, either way, were likely to be in the category of, or analogous to, credit findings that are especially difficult to dislodge on an appeal or cross-appeal, even by way of rehearing, because of the difficulty in demonstrating error rather than mere difference of opinion as between trial and appellate judges on the determination of factual issues for which there is generally no one correct answer.
37 The approach taken in the primary judge’s liability reasons was to:
(1) consider the evidence of the Commissioner first;
(2) make such uncontroversial findings as his Honour could make based on that evidence alone; and
(3) identify other, more contentious, points that required resolution by reference to the entirety of the evidence.
His Honour then turned to the evidence given by each of the 10 individual respondents, before addressing the contentious findings of fact.
38 The following is an outline of what triggered the events in late July 2014 that gave rise to this proceeding.
39 The fourth respondent before the primary judge, Mr Genovese, was engaged on the Barangaroo Project in the period from 2013 until 26 March 2014, when he was suspended. Prior to that suspension, he had been employed by Lend Lease Building as a level 5 construction worker, and at various times was also the Chairman of the Site Work Health & Safety Committee. As at July 2014 he was also a delegate of the CFMEU and of the CFMEU NSW.
40 The primary judge drew an account of the events leading to the 26 March 2014 suspension of Mr Genovese from the affidavit of Mr Hensley from Lend Lease Human Resources. In February 2014, there had been a disagreement and a physical altercation between Mr Genovese and the Site Manager for Tower 3 on the Barangaroo Project at the time, Mr Brad Geaney. The dispute between the two men concerned the adequacy of the response to what Mr Genovese considered to be safety issues concerning a walkway at Tower 3. Meetings about the altercation had taken place on 19 February 2014, on about 11 March 2014 and on about 13 March 2014.
41 The last of these meetings took place between Messrs Genovese, Hensley and Sheppard from Lend Lease Human Resources, and Ms Charlton and Messrs Kera, Reeves and Darren Greenfield from the CFMEU. At that meeting on about 13 March 2014, findings made by Lend Lease concerning the altercation were delivered by Mr Shepherd in a letter. The letter:
(1) described an adverse finding as to Mr Genovese’s conduct in relation to the altercation as being a breach of Lend Lease’s code of conduct and employee conduct guide dealing with harassment and bullying;
(2) required an undertaking that this would not be repeated; and
(3) warned that repetition would lead to disciplinary action.
The letter made provision for it to be signed by Mr Shepherd and by Mr Genovese. Mr Sheppard signed the letter, but Mr Genovese did not.
42 On the Commissioner’s case, there was a short break in the meeting, after which Mr Kera then re-entered the meeting room and advised that the Union did not agree to the warning, characterising Mr Genovese‘s conduct as part of his job as a delegate, and stating that if the foreshadowed action took place, the Union would dispute it.
43 A condition of Mr Genovese’s suspension that followed about two weeks later, as set out in a letter dated 26 March 2014 advising of the suspension, was that he “act in good faith and not take any steps that would, or would likely, disparage Lend Lease, discourage clients from dealing with Lend Lease or be contrary to Lend Lease’s interests”.
44 The Union support given to Mr Genovese was manifested, for example, by way of a poster found at another industrial site in Broadway, Sydney, authorised by Mr Parker as State Secretary of the CFMEU NSW, which said:
45 The poster also said that “Peter has the 100% support of the CFMEU, its Committee of Management, Delegates and Members”.
Blocking Action – first day (24 July 2014)
46 On the first day (24 July 2014), a meeting of workers took place near the main site access point to the Barangaroo site. Prior to that meeting taking place, on the Commissioner’s case, steps were taken to secure, or at least encourage, attendance at that meeting, those steps being described in the pleadings as the Blocking Action. The primary judge summarised the evidence of six witnesses on this activity in some detail, including what was said and observed in relation to workers arriving and attending the meeting, including some evidence suggesting intimidation. His Honour described the findings he made to that point, and the findings that needed to be made on the totality of the evidence, as follows (at [156]):
Although much of this evidence was put in issue by the Respondents and has obviously to be assessed in the light of the evidence also adduced by the Respondents, it would seem relatively uncontroversial that prior to 6.30am on 24 July 2014:
• there were some 500 to 600 workers gathered outside the Main Site Access;
• Messrs Parker, Kera, Collier, Reeves, Taylor, Sloane, Genovese and Darren Greenfield assembled outside the Main Site Access;
• these persons assembled together in the company of other persons wearing CFMEU branded clothing; and
• workers attending for work were told that there was to be a meeting across the road.
What was more controversial, and were factual issues which needed to be resolved by reference to the entirety of the evidence, were such matters as:
• whether words sought to be attributed to one or other of the individual Respondents were in fact said;
• the proper character to be ascribed to the language used;
• whether the manner in which the members of the CFMEU assembled could properly be described as intimidating and such that “they would not let people through” onto the Site; and
• whether one of the CFMEU people, albeit a person who was not identified, also told workers words to the effect that there was going to be a meeting “across the road”, that they “shouldn’t enter the site” and that the “site’s shut no work today”.
The Stop Work Action & the Stop Work Resolution – first day (24 July 2014)
47 The primary judge described the Stop Work Action and the Stop Work Resolution as being events that centred on the meeting of workers that was scheduled to take place at about 6.30 am on the morning of the first day (24 July 2014), with the evidence as to who was present and what was said being more extensive than that available in respect of the Blocking Action. Different witnesses gave varied accounts as to what transpired. His Honour subjected those differing accounts to scrutiny.
48 The primary judge summarised in some detail the evidence of eight Lend Lease witnesses, four subcontractor witnesses, and a witness from the then regulator, the Fair Work Building and Construction (FWBC), whose function was taken over by the Commissioner part-way through the proceeding before his Honour. This included what was said and observed taking place at the meeting. His Honour (at [174]), noted that there were discrepancies in the accounts given as to the number of workers estimated to have been present, the time at which events took place, and the time at which the meeting was said to have finished, but put those matters to one side at that stage. His Honour described the findings he made to that point, and the findings that needed to be made on the totality of the evidence, as follows (at [175]):
Notwithstanding such discrepancies, and although much of this evidence was again put in issue by the Respondents, it nevertheless emerged that the following findings of fact are relatively uncontroversial, namely:
• there were a number of members of the CFMEU in attendance at the Site, including those who were in attendance prior to 6.30am;
• the communication to the workers that there was to be a meeting “across the road” continued after 6.30am and continued until at least 6.45am;
• the meeting commenced sometime before 7.00am, but not at 6.30am;
• the workers who attended that meeting were addressed on matters including the desire for Mr Genovese to be reinstated; alleged safety breaches; the current rate of site allowance; and the alleged failure on the part of Lend Lease to contribute to the monies being raised in respect to a Site employee killed on Site;
• a motion was put that the workers were to not return to the Site for a period of time; and
• the meeting concluded after 7.00am, most probably after 7.15am.
What emerged as more controversial factual areas of dispute, and factual issues which needed to be resolved by reference to the entirety of the evidence and particularly that of the Respondents, focussed upon (inter alia):
• whether the motion that was put for the workers to not return to work for a period of time was a motion to not return for 48 hours or until the following Monday;
• the role played by Mr Parker in either himself “putting” the motion or whether he was merely repeating a motion proposed by one of the assembled workers;
• whether the words attributed to Mr Parker (or words substantially to the same effect) by Messrs Lin, Morrison, Smith, Cleary, Baker, Schneidereit, Tekaute and O’Connor were in fact spoken by Mr Parker;
• whether the words attributed to Mr Kera (or words substantially to the same effect) by Messrs Smith and Polsen were in fact spoken by Mr Kera;
• whether the words attributed to Mr Genovese (or words substantially to the same effect) by Messrs Tekaute, Lin, Morrison, Smith, Henson, Cleary, Zoppellaro, Schneidereit, and Polsen were in fact spoken by Mr Genovese; and
• whether the words attributed to Mr Reeves (or words substantially to the same effect) by Mr Lin were in fact spoken by Mr Reeves and that he “basically reiterated” what Mr Genovese had said, as recorded by Mr Baker in his file note.
The Enforcement Action & the events following the meeting
49 The primary judge referred to the final pleaded case as alleging, in substance, that:
• after the Stop Work Meeting, [all 10 individual appellants] Messrs Parker, Kera, Taylor, Darren Greenfield, Michael Greenfield, Sloane, Collier, Reeves, Genovese and Auimatagi resumed blocking the Site;
• after the Stop Work Meeting, Messrs Parker and Collier, in the presence of Site employees, verbally and physically accosted certain officials at Site, being police in attendance and inspectors from the Fair Work Building Industry Inspectorate; and
• many Site employees failed or refused to attend the Site for work.
50 With a number of express reservations, the primary judge largely accepted the evidence relied upon by the Commissioner as a factual account of the events as they unfolded. His Honour summarised the evidence of five Lend Lease witnesses, six contractors, an inspector and a police officer as to what they heard by way of conversation and what they observed.
51 His Honour described the findings he made to that point, and the findings that needed to be made on the totality of the evidence, as follows (at [191]):
Although much of this evidence relied upon by the Commissioner was again put in issue by the Respondents, it nevertheless emerged that the following findings of fact are relatively uncontroversial, namely:
• by the time the meeting commenced, some 800 to 1,200 workers were in attendance – the precise number matters not. What is of importance is that a significant number of the entire workforce attended;
• after the Stop Work Meeting concluded, members of the CFMEU congregated in the vicinity of the Main Site Access;
• the workers who had attended the meeting (or, at the very least, the overwhelming number of workers) did not thereafter return to work; and
• the police attended at the Site.
Again, what was more controversial, and were factual issues which needed to be resolved by reference to the entirety of the evidence, were such matters as:
• the manner in which the CFMEU persons were assembled and whether (as suggested by the Commissioner) they congregated in a manner which was intimidatory and to give effect to the Stop Work Resolution and to prevent workers who may have wished to attend for work or (as suggested by the Respondents) whether they were simply talking to each other; and
• the words which were said to workers and others, including the police.
Events after 9.00 am on the first day (24 July 2014)
52 The primary judge described a number of events that took place after 9.00 am on the first day (24 July 2014) as being of potential relevance. This aspect of his Honour’s reasons was as follows (at [192]-[198]:
First, there were a series of further exchanges between members of the CFMEU and others.
Thus, for example, at about 9.10am on that date, Mr O’Connor was in a reception room at the Site office. He saw Mr Collier come up to the window of the Site office and say words to the effect:
You’re a fucking grub
And:
Fucking dog
After leaving the Site office, and at about 9.18am, Mr Collier again approach[ed] Mr O’Connor and said words to the effect:
You’re a fucking grub, why are you here, go away. You’re lower than a paedophile you grub.
This account given by Mr O’Connor is accepted.
Ms Tadros, an inspector with the Fair Work Building Industry Inspectorate, observed that at about 9.50am there were about 20 people standing in small groups and individually on the footpath towards the Main Site Access. At about that time she saw Messrs Parker, Collier, Sloane, Auimatagi, Michael Greenfield and Kera. She took a photograph on her mobile phone and was able to recognise from that photograph Messrs Parker, Collier, Auimatagi, Kera and Michael Greenfield. Although cross-examined to suggest that one or other of the faces of those persons were either not visible or not clearly visible, there can be no doubting her identification of those persons. Not surprisingly, she maintained that at other times their faces were visible and she recognised some from their build. She had also seen Messrs Sloane and Auimatagi previously and later confirmed their identity by reference to photographs held on record. Her evidence as to identification is accepted.
Mr Armstrong, another inspector employed by the Fair Work Building Industry Inspectorate, was in his office on 24 July 2014 and had a brief discussion with Mr Barr who told him that “1,200 workers have walked off at Barangaroo”. He said that they would have to talk later to discuss whether there was a need to go to the Site the following day. At around mid-morning, Mr Armstrong located the following online news article on the CFMEU website:
Later in the day Mr Barr told a meeting of Fair Work Building Industry inspectors that:
Lend Lease may be going to the Fair Work Commission to seek orders to stop the industrial action and require the CFMEU workers to return to work.
Mr Barr arrived on Site at about 9.45am. As he walked towards the Main Site Access he observed Mr O’Connor and Ms Siciliano speaking to two uniformed New South Wales Police officers. He recognised Messrs Michael Greenfield, Parker and Collier.
Later that day, a Senior Deputy President of the Fair Work Commission (the “FWC”) made an order under s 418 of the Fair Work Act. Section 418(1) provides as follows:
If it appears to the FWC that industrial action by one or more employees or employers that is not, or would not be, protected industrial action:
(a) is happening; or
(b) is threatened, impending or probable; or
(c) is being organised;
the FWC must make an order that the industrial action stop, not occur or not be organised (as the case may be) for a period (the stop period) specified in the order.
The order was expressed to come into effect immediately and to remain in force for a period of three months. One term of the order required the preparation of a written notice and for it to be signed by an authorised official of the relevant Unions, that notice being in the following form:
The Fair Work Commission has issued a section 418 order to stop or prevent industrial action.
This order is called Lend Lease Building Pty Limited Industrial Action Order July 2014.
The order requires that there be no unprotected industrial action at the Barangaroo South site in the State of New South Wales (Site) (including but not limited to bans, limitations and restrictions on the performance of work).
The order applies to:
• the following unions:
• Construction, Forestry, Mining and Energy Union;
• Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia;
including each of their office-holders and those of the unions’ delegates who are Site Employees;
• Site Employees.
Accordingly, any direction, advice or authorisation by the Union to members of the Union employed by the Company to engage in industrial action at the Site which is not protected is withdrawn and such action must stop or not occur. Those members should return to work as normal and perform work in the manner in which it is usually performed, without any form of ban, limitation or restriction on the performance of work.
The morning of the second day (25 July 2014)
53 The primary judge noted that one of the amendments effected by the final form of the pleadings as filed on 14 July 2016, after three of the 10 hearing days had taken place, and one of the principal bases upon which leave to amend was opposed by the respondents before his Honour, was that the modified pleading expressly included an amendment directed to the events of the second day, 25 July 2014. His Honour rejected that opposition from the respondents primarily because the events of 25 July 2014 had always been included in the statement of material facts that had been pleaded, and on the basis that the amendments merely clarified the pleadings on matters that previously may have been uncertain. The amended form of the pleading was summarised by his Honour as alleging:
at about 6.30 am a “number of CFMEU officials being Parker, Kera, Reeves, Collier, M Greenfield, D Greenfield, Sloane, Taylor and Auimatagi mustered outside the Site Access”;
“resumed blocking the Site Access”;
“called, organised and convened a further meeting of the Stop Work Employees for the purposes of communicating to them the making of section 418 orders by the Fair Work Commission”; and
continued their conduct from 24 July 2014.
54 The primary judge again summarised the evidence relied upon by the Commissioner, at this point from eight Lend Lease witnesses, six subcontractors, and four inspectors as to what they heard and observed. His Honour described the findings he made to that point, and the findings that needed to be made on the totality of the evidence, as follows (at [227]-[228]):
Although much of this evidence was again put in issue by the Respondents and has obviously to be assessed in the light of the evidence also adduced by the Respondents, it would seem relatively uncontroversial that in relation to the events that occurred on 25 July 2014 that:
• there was a meeting in the forecourt opposite the Main Site Access which commenced at about 6.30am and finished sometime after 7.00am;
• there were fewer workers who attended this meeting than the meeting held on 24 July 2014 but the numbers in attendance were no less than about 100;
• there were in attendance the following members of the CFMEU: Messrs Parker, Collier, Michael Greenfield, Darren Greenfield, Reeves, Kera, Taylor, Sloane, and Auimatagi;
• Messrs Parker and Collier addressed the assembled workers; and
• Mr Parker advised the workers of the order made by the Fair Work Commission on the afternoon of 24 July 2014 requiring the workers to return to work.
There is less controversy in respect to these events than those that occurred on the previous day. To some extent that may be attributable to the fact that there was a video recording of more of these events than was available in respect to the 24 July 2014 events.
What was more controversial, and which necessarily has to be assessed by reference to the entirety of the evidence and, in particular, the evidence of the Respondents themselves, are such facts as:
• what was intended to be conveyed to the workers by Mr Parker when he addressed them (if anything) in addition to advising them of the orders made by the Commission;
• what was said and done by other members of the CFMEU and what they intended to achieve by making comments to the Fair Work Building and Construction inspectors; and
• what happened after the meeting concluded and how many workers attended for work and performed work on 25 July 2014.
The case for the respondents before the primary judge
55 After the close of the Commissioner’s case, each of the 10 individual respondents waived any privilege against self-incrimination or penalty privilege, gave evidence and was cross-examined. The primary judge summarised the evidence of each of the individual respondents. Some of that summary, such as for Mr Parker’s evidence, was in considerable detail and was interspersed with reference to parts of the evidence adduced by the Commissioner. His Honour reached a number of factual conclusions.
Mr Brian Parker, first respondent at trial
56 Mr Parker did not fare well, with reservations being expressed by the primary judge as to the reliability of his evidence. Much of his exculpatory account of events was not accepted. His Honour accepted that the following events and utterances attributed to Mr Parker took place, which was to a substantial degree contrary to his evidence:
(1) At [238], that once the meeting on the early morning of the first day (24 July 2014) started, Mr Parker took a more prominent role and made statements to those present that:
he was aware of the “findings” of the Lend Lease investigation and that he believed the findings were that “Peter has done nothing wrong”;
it would take strike action for Lend Lease to reinstate Mr Genovese;
Mr Genovese should be “reinstated immediately”;
“enough is enough. We’re going to take on Lend Lease”;
“who will walk out the gate until Pete G is reinstated? It will take more than just today to send that message to Lend Lease”;
“you have to start standing up for people like Peter”; and
“I have no problem going to [gaol] for it”.
(2) At [241], that Mr Parker had displayed a willingness to misrepresent the facts as he presented them to the workers, being a reference to the above statement that the Lend Lease investigation had found that Mr Genovese had done nothing wrong, when he knew that was not the case.
(3) At [243], that, in relation to the passing of the Stop Work Resolution, Mr Parker said words to the effect of:
“what motion are we going to put forward to get Peter Genovese back to work”;
“who will walk out the gate until Peter G is reinstated”; and
“it will take more than just today to send that message to Lend Lease”.
(4) At [246], that Mr Parker’s denial that he attempted to encourage the workers to vote on the Stop Work Resolution as they did should be rejected and, instead, it should be concluded that his intention was in fact to “stir up” the workers and to put pressure on Lend Lease.
(5) At [247], that after the meeting, Mr Parker assembled outside the main site access point and, with some of the other members of the CFMEU, remained there for the next two and half to three hours, during which time other members of the CFMEU were heard to use expressions such as “you’re just a fucking dog”.
(6) At [248], that Mr Parker confronted a female police officer and said “who do you think you are”. She told him to “calm down”, described him as “yelling in a loud voice” and described his conduct as trying “to intimidate me with body language”. His Honour further concluded at [249] that by engaging in this exchange:
… Mr Parker exposed his unwillingness to brook any opposition to the objectives he sought to pursue and, equally of importance, is that it exposes the objective of presenting to the workers in the vicinity that the Union would even take on the police to achieve those objectives. The Union was not going to be intimidated by the presence of the police; it was the Union, it is concluded, that was setting out to intimidate (inter alia) the workers. The exchange with the police Constable formed part of the background factual context in which it can readily be concluded that Mr Parker was deliberately setting out to create an atmosphere of defiance, even as against those charged with enforcing the law.
(7) At [250], that Mr Parker also took an active role in the events on the morning of the second day (25 July 2014). Further, at [255], that at that meeting, Mr Parker was pursuing the following two objectives when addressing the workers:
(a) informing them of the orders made by the Fair Work Commission and the need to finish the meeting by 7.00 am; and
(b) urging them to continue their strike action;
and that Mr Parker’s denial of urging the strike action to continue should be rejected, with it being concluded that he was setting out to create “an atmosphere of defiance”, particularly “towards the FWBC [Fair Work Building and Construction] inspectors”.
(8) At [256], that the words attributed to Mr Parker and accepted as having been uttered by him at the meeting on the second day (25 July 2014) went well beyond any purpose of simply conveying to the assembled workers the message that the Fair Work Commission had made orders, and should be characterised as an attempt to incite or encourage the workers to continue their existing strike action.
(9) At [259], that Mr Parker’s involvement in the events as they unfolded on both days (24 and 25 July 2014) could not be divorced from the earlier commitment on the part of the CFMEU to having Mr Genovese reinstated, as evidenced by the poster referred to above at [44], authorised by him.
Mr Robert Kera, second respondent at trial
57 His Honour also expressed reservations as to accepting Mr Kera’s evidence without caution, noting that this evidence was characterised by a failure to answer many of the questions put to him and by an attempt to convey the evidence that he wanted to give.
58 In respect of Mr Kera’s account of his knowledge of, and involvement in, the allegations against Mr Genovese, his Honour noted the following two things in particular (at [264]-[266]):
(1) While Mr Kera held strong views as to the manner in which Mr Genovese had been treated, those views were not founded on a clear understanding of the basis upon which Lend Lease had made its findings and issued Mr Genovese with a warning letter. Despite having available to him a copy of the statements made concerning the conduct of Mr Genovese, Mr Kera did not seem to be familiar with those statements and did not seem to have taken the time to read them.
(2) Mr Kera accepted having attended two meetings concerning the investigations into the conduct of Mr Genovese. There were, however, two differing accounts in relation to Mr Kera’s attendance. On Mr Kera’s account, he said at one of those meetings words to the effect of “I’m asking Lend Lease to cease this investigation”, and denied saying words to the effect of “I’m telling Lend Lease to cease this investigation”. His Honour found that Mr Kera did, in fact, tell, rather than ask, Lend Lease Building to cease the investigation. That included an acceptance of evidence that Mr Kera stated at the meeting on 11 March 2014 that the CFMEU did not “agree to any warning at all” and that if “it [the investigation] proceeds, we will dispute it”, as well as Mr Kera having said that he was “angry” that the investigation had not already been shut down.
59 The primary judge considered Mr Kera’s lack of knowledge of the allegations made concerning Mr Genovese, and his anger in response, as forming part of the factual matrix relevant to making findings as to Mr Kera’s “intent” when engaging in conduct. In that regard, his Honour accepted or concluded the following:
(1) At [268], that, with respect to knowledge of the Joint Development Agreement, Mr Kera had more immediate knowledge than Mr Parker, having represented the CFMEU NSW in the negotiations leading to that agreement in 2012, and having accepted in his evidence that that agreement “had a dispute resolution procedure”, but that he did not know its precise content, nor did he have knowledge of cl 20 of the agreement.
(2) At [269], that, with respect to the events of 24 and 25 July 2014, Mr Kera “decided, along with Brian Parker, that we needed to have a communications meeting with the workforce to let them know what was going on”, but did not recall “the steps that I took to organise the communications meeting, but I did organise it”.
(3) At [270], that, prior to the meeting of 24 July 2014 commencing, Mr Kera stood with other union officials “in the general area of the site access point” but there was “no formation or wall of union officials near the entrance”, such that Mr Kera was “not aware that anyone was prevented or blocked from gaining access to the site”. His Honour, in accepting this, noted that the manner in which the CFMEU officials were assembled said “little as to their purpose in being present or the effect that their presence had on workers seeking to gain access to the Site”.
(4) At [271], that Mr Kera, who addressed the workers at the meeting along with Messrs Parker, Reeves and Genovese, could not recall what he said, aside from accepting that he said, “there has been an injustice committed down here at Barangaroo against Peter Genovese”, and something “about a worker who had passed away on the site earlier that year”. Mr Kera made a number of further concessions about what he said in cross-examination. His Honour concluded from that evidence that Mr Kera was trying to “stir up” the workers by addressing them in this manner, and rejected Mr Kera’s own rejection of having that intent or motive.
(5) At [272], that Mr Kera had told the workers that the “situation with Peter Genovese has got to stop” and that he “must be reinstated immediately as safety committee chairman”.
(6) At [273], that Mr Kera (based on the account of a site manager named Mr Polsen) told workers after the meeting that “the site is closed from the vote”, and that Mr Polsen at that point told Mr Kera that the action being taken was “unprotected action” and that it was “illegal for us to close the site”. His Honour noted Mr Kera’s denial that he said words to the effect of “the site is closed from the vote”, “where are you going fellas?” or “[y]ou had a chance to vote”, or that Mr Polsen, in their conversation, said to him that “this is unprotected action, the site is open”, which Mr Parker also maintained. His Honour accepted Mr Polsen’s account over that evidence.
(7) At [275], that on 25 July 2014, Mr Kera told the assembled workers that inspectors were present; that they were there “to prosecute workers”; that the workers had “the right to go to work and not be prosecuted like dogs”; that he said words to the following effect:
Have a look to your right. There’s three individuals over there. That’s called the FWBC, the Fair Work Building and Construction Commission. They’re here today to monitor what’s going on so they can go around and fight and prosecute workers in Australia. This is fucking Australia in 2014! We’re doing work. We’re not fucking dogs! We’ve got the right to go to work, we’ve got the right to get paid and we don’t have the right to go in there and get prosecuted and put off by those individuals.
and that Messrs Kera, Michael Greenfield and Collier stood in close proximity when Mr Greenfield said to the inspectors, “[a]re you the Lend Lease intimidation squad?”
60 His Honour observed generally with respect to Mr Kera and his evidence the following (at [276]):
He was a witness who on many occasions failed to answer the question put to him. He was self-evidently a person with a keen understanding of his potential exposure to liability in the proceeding and, with respect, a person more concerned with confining the answers given in cross-examination to a question other than the one being asked. This general observation has formed a part of the reasoning as to why the evidence of other witnesses should be preferred to that given by Mr Kera.
Mr Danny Reeves, third respondent at trial
61 His Honour observed that Mr Reeves held a unique position amongst the individual respondents, being an employee of Lend Lease Building. He was involved in the consideration given by Lend Lease Building to the allegations against Mr Genovese, and took an active part in the events on the two days (24 and 25 July 2014). That included informing workers approaching the site access point on the first day, as a CFMEU officer, that a meeting would be held across the road, and subsequently assuming an active role in the meeting.
62 His Honour accepted the following aspects of Mr Reeves’ involvement:
(1) At [280], that Mr Reeves told the assembled workers words to the effect of:
• Lend Lease are incompetent and unwilling to address safety issues. Peter Genovese should be reinstated immediately. I’ve only been filling his role on the safety committee on a temporary basis. We should support Peter G…
• Peter has been treated very badly by Lend Lease and he must be reinstated.
(2) At [284], that Mr Reeves, notwithstanding his denial of this taking place, did raise his hand to vote on the resolution on 24 July 2014, thereby indicating his solidarity with the position of Mr Parker and the workers. His Honour noted that the rejection of Mr Reeves’ explanation of this event provided in cross-examination was a “further reason to question the reliability of Mr Reeves’ other evidence”.
(3) At [285], that Mr Reeves took a more active role in the meeting on the second day (25 July 2014) than on the first, and that Mr Reeves approached workers at the site access point and said words to the effect of:
• I hope you guys have had security training, because if you haven’t, you might get hurt today.
• I hope you’re being paid well.
His Honour noted that Mr Reeves did not deny saying those words, but that he maintained that they were said as “banter”. His Honour expressly rejected that explanation. His Honour concluded that the words were “intended to convey their natural and ordinary meaning: the words were said with an intent to intimidate”.
(4) At [286] and [288], that Mr Reeves said words to the following effect to the assembled workers:
• Make a decision like yesterday. You need to stand up to them.
• The decision you made yesterday and the decision you make today will follow you around for the rest of your life, make sure you make the right decision.
Mr Peter Genovese, fourth respondent at trial [not an appellant]
63 His Honour noted that Mr Genovese, like Mr Reeves, was also an employee of Lend Lease Building, having worked for Lend Lease and its predecessors for more than 30 years.
64 His Honour summarised Mr Genovese’s account of the events that preceded the meetings of 24 and 25 July 2014 to include:
(1) Mr Genovese first becoming aware of an allegation of misconduct against him in mid-February 2014, namely that he had hit Mr Geaney on 14 February 2014, this being an allegation that he denied at the time.
(2) Mr Genovese receiving an email containing further allegations on 10 March 2014, with him then further denying the allegation and words attributed to him.
(3) Mr Genovese receiving a letter of warning at a meeting on 13 March 2014 with Lend Lease and CFMEU officials, which he refused to sign.
(4) Mr Genovese becoming aware, upon the CFMEU writing to Lend Lease asking that the warning be immediately retracted, that the CFMEU was disputing the warning he had been given.
(5) Mr Genovese becoming aware several weeks later that Lend Lease was conducting a further investigation into his conduct.
(6) Mr Genovese attending a meeting on 26 March 2014 with Lend Lease Building officials and being handed a letter suspending his employment, signed by the Managing Director of Lend Lease Building.
65 His Honour also noted, by way of context and background, that Mr Genovese became ill and was admitted to hospital in April/May 2014, and was subsequently certified as fit to return to work from 21 June 2014 for two days a week. The Fair Work Commission later decided on 22 January 2015 that Mr Genovese was to return to work, with a Full Bench of the Commission subsequently refusing Lend Lease Building permission to appeal that decision.
66 The primary judge then made the following conclusions as to events and utterances taking place in relation to Mr Genovese on the two days (24 and 25 July 2014):
(1) At [299], that Mr Genovese was asked by someone from the CFMEU to attend at the site as workers had been asking after him, prompting him to agree and attend on the first day (24 July 2014). His Honour accepted that Mr Genovese had not been “directed” to attend that meeting.
(2) At [300], that Mr Genovese understood that the purpose of the meeting was “to give the blokes an update on where I was up to”. The Commissioner put to Mr Genovese an alternate understanding in cross-examination, namely that he attended so as to be a part of CFMEU action in relation to his suspension. His Honour, despite expressing reservation, concluded that the Commissioner had not established an alternate purpose of Mr Genovese’s attendance, as put to him in cross-examination.
67 His Honour then considered the following account of events given by Mr Genovese, expressing that caution needed to be exercised in evaluating this evidence due to his non-responsive answers, which were also more an expression of his grievances:
(1) Mr Genovese attended the site on the first day (24 July 2014) and stood near the main site access point. He did not see anyone being prevented from entering the site, and did not go out of his way to talk to anyone. He heard someone say words to the effect of, “[t]here is a meeting across the road at 6.30”, but did not hear people say that the site was shut for the day.
(2) Mr Genovese recalled Mr Parker and Mr Kera speaking at the meeting, but did not recall Mr Reeves doing so, although he later shifted his position to saying that he “vaguely” remembered Mr Reeves speaking.
(3) Mr Genovese did recall himself speaking, saying something about him being in hospital and having depression, thanking the workers for their support and saying the following words:
• The site managers for the project site are incompetent and I could run the job on my own. Barangaroo is the worst run project I have been involved in during my 30 years working for Lend Lease.
• I could run this job on my own and I could guarantee the safety of the workers a lot better than the current management could. The only thing I am guilty of is looking after the safety of the workers on site.
(4) Mr Genovese recalled the resolution being passed but maintained that he did not himself vote, and denied that the purpose of the meeting was to “stir the workers up to take action against Lendlease on [his] behalf”.
(5) Mr Genovese did not hear anyone abusing workers at the site or calling anyone “scum” or “dog”, and, further, did not hear Mr Collier call anyone a “grub” or a “fucking dog”, nor say words to the effect of, “[y]ou’re a fucking grub, why are you here go away. You’re lower than a paedophile you grub”.
(6) Mr Genovese did not take part in the events on the second day (25 July 2014), and although his suspension was revoked on 31 July 2014, he did not go back to work until the following year.
Mr Michael Greenfield, fifth respondent at trial
68 The primary judge (at [311]) canvassed that Mr Michael Greenfield was, at the time of the events on the two days (24 and 25 July 2014), 29 years of age, had been in employment with the CFMEU for six months, and was “very green” and inexperienced, with the passing of the resolution on the first day (24 July 2014) being the first industrial action he had experienced.
69 Mr Michael Greenfield gave evidence that he was instructed to attend the site on the first day (24 July 2014) and “inform workers that there was a communications meeting to be held across the road ... to give the workers an update on Mr Genovese”. He could not recall whether Mr Parker or Mr Kera gave him that instruction. The primary judge accepted that Mr Michael Greenfield knew “little (if anything)” about the facts surrounding Mr Genovese and did not know that the CFMEU was in full support of having Mr Genovese reinstated.
70 Mr Michael Greenfield also gave evidence that he did not hear what was said by Messrs Parker, Kera, Genovese or Reeves when addressing the assembled workers, but recalled the workers cheering when a vote had apparently been taken. He then took a more active role in the events on 25 July 2014. The primary judge concluded that Mr Michael Greenfield said words to the following effect on that day:
• [To inspectors] “Are you the Lend Lease intimidation squad?”
• I hope your kids work in the construction industry then they will come running to us.
• Wait till the ALP get in and you will be working at Maccas.
71 Mr Michael Greenfield denied making the latter two statements, and further did not recall saying words to the effect of, “Don’t be intimidated by these Lend Lease guys, you are entitled to have a meeting”.
72 The primary judge (at [317]) concluded that Mr Michael Greenfield’s evidence was unreliable, that he took a more active role in the events than he was prepared to accept, and that he was certainly far from being a “passive observer”, at least in respect of the events on the second day (25 July 2014).
Mr Luke Collier, sixth respondent at trial
73 The primary judge found (at [319]) that Mr Collier’s knowledge of the background facts surrounding Mr Genovese was limited, and he did not have any knowledge of the dispute resolution requirement of enterprise agreements generally, although he was aware of conduct that may constitute “unlawful industrial action”.
74 Mr Collier gave evidence that Mr Kera asked him to attend the site on the first day (24 July 2014) and that he did not recall anyone saying that the site was shut or that workers should not enter the site. He did, however, tell workers that there was a meeting. His Honour concluded (at [322]) that Mr Collier was more extensively involved in the events of the two days (24 and 25 July 2014) than some other CFMEU people due to him being the person who brought the loudhailer or megaphone to the meeting and used that loudhailer to announce that there was to be a meeting.
75 The primary judge:
(1) At [322] expressed reservation as to the weight to be attributed to Mr Collier’s evidence, in light of his inability to recall things that were said around him and within his hearing, and noted that the bringing of the loudhailer “exposed a greater degree of planning and foresight … than was otherwise acknowledged by Mr Collier”. His Honour rejected Mr Collier’s explanation that he brought the loudhailer as a result of taking “some initiative”, and concluded that he brought it so as to take an active role in the meeting.
(2) At [323] rejected Mr Collier’s statement that he did not recall “anything” that was said at the meeting on 24 July 2014, despite being positioned close to Mr Parker and despite being at the meeting in its entirety. His Honour further stated (at [324]) that “Mr Collier’s inability to recall even fundamental facts … casts a serious question over the balance of his evidence”, and provided a basis to query whether Mr Collier was being fully frank in his evidence.
(3) Considered that some of Mr Collier’s evidence was not credible, and concluded that Mr Collier was aware of what was being said before the vote being taken, knew the substance of action being taken and knew why it was being taken.
(4) Raised some question as to Mr Collier’s denial of having said words to the effect of, “Where are you going? The site is shut because of the stop work resolution”, his rejection of having described some workers as “scum” or “dogs”, and his explanation as to what he was doing after the meeting. His Honour rejected that explanation and found that Mr Collier’s presence after the meeting was for the purpose of conveying to workers a need to comply with the resolution.
(5) Accepted that Mr Collier engaged in the conduct of referring to the inspectors as “dogs”, and that he was attempting to intimidate the inspectors.
76 Mr Collier, in his evidence, accepted that he was at the meeting on 25 July 2014, although he could not recall who asked him to attend. He maintained that he was not in any particular formation with other union officials at the site access point. He denied seeking to intimidate Mr O’Connor, an inspector attending the site, by saying words to the effect of “[t]here are dogs here today” and reading out Mr O’Connor’s mobile phone number. The primary judge rejected that evidence and concluded that Mr Collier was attempting to intimidate Mr O’Connor, and that reading out Mr O’Connor’s mobile phone number was “part of his overall intent to coerce the [s]ite employees”. His Honour found this to be conduct that was “unlawful … or unconscionable”, in the sense laid down in Seven Network (Operations) Ltd v Communications, Electrical, Electronic, Energy Information, Postal, Plumbing and Allied Services Union of Australia [2001] FCA 456; 109 FCR 378 at 388 per Merkel J.
77 Mr Collier denied that he said words to the effect of “[g]o back to work you grubs”. He accepted, however, that he said words to the effect of:
• “[e]veryone, there is a meeting across the road, all construction workers, that doesn’t include the FWBC grub in the fluoro”;
• “[i]t can’t be that hard to get a job with FWBC, even if you were a transit officer”.
Mr Darren Greenfield, seventh respondent at trial
78 Mr Darren Greenfield, the father of Mr Michael Greenfield, gave the following key points of evidence, which the primary judge apparently accepted:
(1) He was not specifically aware of the contents of the enterprise agreement between Lend Lease and the CFMEU, despite knowing of its existence and knowing that such agreements generally contained dispute resolution clauses.
(2) He was aware at some stage of the allegations against Mr Genovese, but was unsure whether this culminated in a suspension or warning letter.
(3) He recalled being told on the morning of 24 July 2014 that the CFMEU would be having a communications meeting at the site, and he volunteered to help.
(4) He denied that his purpose in attending was to help put pressure on Lend Lease to reinstate Mr Genovese.
(5) Upon arriving at the site on both 24 and 25 July 2014, he did not stand in any particular formation with the other CFMEU officials at the site access point, nor did he block the entrance to the site or prevent any workers from entering it, although he did tell workers arriving that “there’s a communications meeting across the road” and “there’s a meeting offsite before work”.
(6) He did not recall who spoke at the meeting on the first day (24 July 2014) and could not hear what was said. His Honour, at [336], rejected Mr Darren Greenfield’s denial as to the extent to which he was listening and what he observed, and concluded that he took a “greater interest in what was being said and what was taking place than he professed”.
(7) He accepted that by walking off the site, the workers would be engaging in unlawful industrial action.
(8) He did not hear anyone being called “scum” or a “dog”, and did not observe Mr Parker yelling or “using aggressive or intimidatory body language”.
(9) He recalled Mr Collier yelling out Mr O’Connor’s mobile phone number, but denied pointing at Mr O’Connor and denied saying or yelling the words, “[t]hey’re nothing but dogs”.
(10) He saw his son, Mr Michael Greenfield, and Mr Collier standing near the inspectors and said, “[m]ove away from them boys, I’ve told you before”. The primary judge (at [341]), accepted that Mr Darren Greenfield said those words, that he did refer to inspectors as “dogs”, and also that he said to Mr Michael Greenfield, “Don’t stand too close Mick, they have fleas. They’re dogs.”
(11) He recalled Mr Reeves addressing the assembled workers to say that they should “think about how they voted yesterday” and “You need to make a decision. Make a decision today like you did yesterday. It’s the start of something big”. His Honour accepted that account at [342].
Mr Tony Sloane, eighth respondent at trial
79 Mr Sloane gave the following key points of evidence:
(1) He was generally aware that there were enterprise agreements between Lend Lease and the CFMEU, but did not know what those agreements were called or that they contained conflict resolution or work continuity clauses.
(2) He was not aware of the investigations being made by Lend Lease into the conduct of Mr Genovese.
(3) Upon arriving at the site on the first day (24 July 2014), he saw that Messrs Parker and Kera were present, and later accepted that Messrs Michael and Darren Greenfield were also present, but did not recall whether Mr Auimatagi was present. He did tell approaching workers that “[t]here is a meeting across the road” but did not recall anyone else saying anything, and observed the meeting taking place but did not recall what was said.
(4) After the meeting, he did not recall anyone saying words to the effect of “[w]here are you going? The site is closed because of the stop work vote”, or using words such as “scum” or “dog”.
(5) He was present at the site on the second day (25 July 2014), and accepts saying to Mr O’Connor (but not to Mr Barr), words to the effect of “I hope you got your spelling right”, which he maintained was “intended as a joke”, and was not intended to disconcert Mr O’Connor due to his taking notes at the meeting. His Honour concluded (at [349]) that this comment was not intended as a joke but, rather, was part of an “atmosphere … of defiance” created by the CFMEU towards the inspectors that day. His Honour considered evidence that Mr Sloane gave to explain “tapping” Mr O’Connor on the shoulder at a point during the meeting, and concluded that his purpose or motive in doing so was to “make sure that the derision being directed towards the inspectors at the meeting was being directed at exactly the right people”.
80 His Honour noted (at [348]) in relation to Mr Sloane that his inability to recall much of what took place on either 24 or 25 July 2014 occasioned concern, and that:
…the extent of his inability to recall what was said – it is concluded – is more the product of an attempt to shield himself behind a professed inability to recall rather than a genuine attempt to answer the questions put to him.
Mr Darren Taylor, ninth respondent at trial
81 Mr Taylor gave the following key points of evidence:
(1) He was aware of an enterprise agreement between Lend Lease and the CFMEU, having been part of the CFMEU team of negotiators, and was generally aware that such agreements often contained conflict resolution clauses. He was aware that it would be unlawful industrial action if workers walked off the site without having engaged in the “required procedure”.
(2) He was aware of Mr Genovese having been given a written warning, was aware that the CFMEU wanted Mr Genovese reinstated, and he had agreed with that position.
(3) Upon arriving at the site on 24 July 2014, he recalled saying to approaching workers words to the effect of, “[h]ello, there’s a meeting across the road”, but did not recall hearing anyone state that the site was shut or that workers should not enter the site.
(4) He arrived at the meeting when Mr Parker started talking, but could not recall what Mr Parker was saying. He did not recall Mr Parker putting a resolution to the meeting. Rather, he said that Mr Parker was “repeating what was said”. He also did not recall Mr Parker saying words to the effect of, “[e]nough is enough. We’re going to take on Lend Lease”.
(5) He recalled Messrs Genovese and Reeves speaking to the assembled workers, but did not recall Mr Reeves saying that Mr Genovese had been “treated really badly by Lendlease and must be reinstated”.
(6) He shortly afterwards stood near the site access point but maintained that he did not block anyone from entering the site. Despite his denial of doing the same, his Honour concluded at [357] that by attending the site and standing in the vicinity of other CFMEU persons, Mr Taylor and others were presenting themselves in a “physical demonstration of strength by the CFMEU outside the main site access”.
(7) He was present at the site on 25 July 2014, but professed an inability to recall what took place during the course of the meeting on that day, including Mr Collier calling out on the loudhailer that there were “dogs in the crowd”.
82 The primary judge (at [359]-[360]) accepted that Mr Taylor was heard to yell out words to the effect of “They are trying to intimidate the workers”, and heard using a loudhailer to say words to the effect of “Those are the dogs over there; they are from the FWBC, Fair Work Building Commission”. His Honour accepted the latter account notwithstanding that Mr Taylor could not recall saying those words.
83 The primary judge noted (at [356]) Mr Taylor’s “professed inability to recall much of anything that was said by Messrs Parker, Kera, Reeves or Genovese stands in marked contrast to his insistence that it was not Mr Parker who put the resolution to the meeting”. His Honour considered that his inability to recall what was said was open to serious question, as was his failure to take any action to advise the workers that the resolution passed exposed them to prosecution for unlawful industrial action, despite understanding this at the time. However, his Honour noted that those reservations could not be the basis for making a finding that Mr Taylor acted with an intent to coerce the site employees.
Mr Richard Auimatagi, tenth respondent at trial
84 Mr Auimatagi gave the following key points of evidence:
(1) He was aware that the enterprise agreement in force on the site would have included a conflict resolution clause and, although he denied knowing that strike action of employees without compliance with such a clause would constitute unlawful industrial action, he was aware that such action on the part of employees would contravene the enterprise agreement. His Honour accepted that evidence at [370].
(2) He was present at the site on both days (24 and 25 July 2014).
(3) Upon his arrival at the site on the first day (24 July 2014), he was present with Messrs Parker, Kera, Collier and Michael Greenfield, with Mr Darren Greenfield arriving later.
(4) He was asked to attend the site by Mr Kera as a “last minute instruction”, and did not ask why.
(5) He stood opposite the site access point and told approaching workers that there was to be a communications meeting, but did not know why the meeting was to be held. He did not hear anyone tell the approaching workers that the site was shut for the day or that they were not to enter the site.
(6) He recalled a “common theme” running through Mr Parker’s statements to the assembled workers, being the expressions, “return back to work”, “mistreated” and “reinstatement”. His Honour noted (at [365]) that Mr Auimatagi’s recollection of what was said at the meeting was imperfect. He could not recall Mr Parker saying words to the effect of “enough is enough”, or that the CFMEU was “going to take on Lend Lease”. He was more certain, however, in his recollection that Mr Parker did not put a resolution to the meeting, and that the “resolution came from the floor”.
(7) After the meeting, he maintained that words were not said to workers to the effect of “[w]here are you going”. Nor did he hear Mr Kera say words to the effect of, “[w]here are you going, fellas? You know the site’s closed from the vote”, or words being said to the effect of “scum” or “dog”.
(8) In relation to the events of the second day (25 July 2014), he did not hear Mr Collier say words to the effect of “we have got a few dogs in the crowd” or call out Mr O’Connor’s mobile phone number. He also did not recall Mr Reeves saying words to the effect that the assembled workers “should think about how they voted yesterday”, and that today was “the start of something very big”. He also did not recall Mr Parker saying words to the effect that he had “no problem going to [gaol] for it”.
(9) He denied taking part in the events on 24 and/or 25 July 2014 with any intent to “coerce” any of the workers to take industrial action or to coerce Lend Lease to reinstate Mr Genovese. His Honour accepted that denial at [367], confined to a denial as to his purpose in being present.
85 The primary judge (at [368]) expressed reservations as to much of Mr Auimatagi’s evidence. His Honour considered it highly unlikely that he did not hear what was yelled out by Mr Collier, given his proximity to Mr Collier at the time and Mr Collier’s use of a loudhailer. His Honour also expressed reservation at Mr Auimatagi having maintained that he did not notice the presence of inspectors, and questioned the reliability of the balance of Mr Auimatagi’s evidence and his failure to recall Mr Kera saying words attributed to him. His Honour expressly noted (at [369]) that those reservations were relevant in making findings against Messrs Kera, Collier and Reeves, and that his Honour had considered the evidence of Mr Auimatagi together with the balance of the evidence in making those findings.
THE LIABILITY FINDINGS MADE BY THE PRIMARY JUDGE
86 The primary judge summarised the final form of the Commissioner’s pleaded case as follows (at [371]-[372], emphasis in original):
The Further Amended Statement of Claim alleges:
• a series of breaches of the Joint Development Agreement; and
• contraventions of ss 50, 348, 417 and 355 of the Fair Work Act.
In addition to specific contraventions against one or other of the individual Respondents, those Respondents are also alleged to assume “accessorial liability” by reason of s 550 of the Fair Work Act. The CFMEU and CFMEU NSW are alleged to have liability for the contraventions of the individual Respondents by reason of s 793 of the Fair Work Act.
The Commissioner in his Further Amended Statement of Claim alleges that those workers who did not attend for work, described as the “Stop Work Employees”, are said to have breached cls 19 and 20 of the Joint Development Agreement. The Further Amended Statement of Claim thereafter proceeds to set forth (inter alia) the contraventions alleged as against each of the individual Respondents. In large part, those allegations follow a common format. To some extent the allegations that follow such a standard format necessarily repeat an allegation as to the manner in which it is said the conduct falls within identified provisions of the Fair Work Act and why such conduct constitutes a contravention of the statutory provision relied upon.
87 The primary judge first made liability findings by way of general conclusions about the three aspects of the industrial action alleged (being the Blocking Action, the Stop Work Action and the Enforcement Action) and about the non-party Stop Work Employees. His Honour then addressed each of the allegations against each respondent.
88 As to the Blocking Action and the Stop Work Action, the primary judge found that the conduct of the employees preceding the meeting at which the Stop Work Resolution was passed did not constitute industrial action for the purposes of ss 19(1)(b) or (c) of the Act, because it took place prior to any of the employees being required to attend for work and therefore perform work. His Honour found that merely attending a meeting at which no resolution had (yet) been voted upon could not constitute a failure or refusal to attend for work. However, his Honour found that the passing of the resolution was industrial action because it was a ban, limitation or restriction on the performance of work. Similarly, the failure to attend for work on either day was industrial action because it was a failure or refusal to attend for work or perform work at all.
89 The primary judge accepted that there was nothing unlawful in the employees’ conduct prior to the vote, but this did not mean that what occurred at that time was irrelevant. That would, his Honour considered, fail to address the role played particularly by Messrs Parker, Kera and Genovese in the lead up to the passing of the resolution, would be an impermissible quarantining of the earlier conduct from the later conduct and would fail to provide general context for the CFMEU’s support for Mr Genovese, which pre-dated the events of 24 and 25 July 2014.
90 The primary judge also found, as urged by the Commissioner, that the Enforcement Action whereby a number of the members of the CFMEU crossed the road and reassembled outside, or in the vicinity of, the main site access point was done to give effect to the resolution, the passing of which was known by at least some of them to be calling for the workers to engage in unlawful conduct. This was found to be a show of force, for the purpose of blocking entry to the site and intimidating the workers from working. It was not merely, as the CFMEU would have it, assembling and staying there for some two to three hours simply to “have a chat”, which the CFMEU maintained by relying on the loose assembly of CFMEU members gathered, and the lack of a solid wall of persons precluding entry to the site. His Honour found that the CFMEU characterisation did not survive when regard was had to the length of time involved, and some of the things that were said to the workers, such as “Where are you going? The Site is closed.” The mere possibility of being able to enter the site did not detract from the presence of members being, and being intended to be, intimidatory.
91 The primary judge referred to the pleaded case in relation to the Stop Work Employees, including Mr Reeves (at [50]-[51]), and concluded that those employees who failed or refused to attend work on either day, who voted in favour of the resolution and who acted upon that resolution engaged in industrial action under s 19(1)(b) or (c) of the Act, and further fell within the scope of s 347(f). His Honour found that the refusal to attend work after the passing of the resolution constituted industrial action.
The individual appellants – ss 348, 417 and 355
92 The primary judge’s approach was to outline the nature of the case against Mr Parker first and in more detail, using that as a form of template for the remaining individual appellants. His Honour noted the similarity of the pleading in the further amended statement of claim (at [52]-[57] and [59] for Mr Parker), but also the material differences, such as that it was only in relation to Mr Parker that the alleged action extended to also being against the police, and that Messrs Reeves and Genovese had a different status as employees of Lend Lease Building. His Honour commenced with a number of generally expressed conclusions as to the events on the first day (24 July 2014) and, by parity of reasoning, on the second day as well, which flowed in part from the general conclusions above and were subject to considering the extent of individual conduct. Those conclusions as to the individual respondents were that:
(1) those who only told workers about the meeting, or encouraged them to attend, did not thereby engage in industrial action;
(2) nothing said by CFMEU members, including the individual respondents, prior to the meeting being held constituted action taken with intention to coerce under s 355 of the Act;
(3) those who addressed the assembled workers during the meeting did engage in industrial action, being the passing of the resolution which was a ban, limitation or restriction on the performance of work by an employee, because they encouraged or participated in an unlawful activity;
(4) those who took part in calling for, and the vote on, the resolution engaged in industrial action;
(5) the conduct of CFMEU members, including the individual appellants, who participated in the Stop Work Action and the Enforcement Action could potentially constitute action with intention to coerce under s 355 of the Act;
(6) separate consideration was needed to determine whether anything said by Messrs Parker, Kera and Genovese prior to the resolution being passed could be characterised as action taken with intention to coerce;
(7) conduct that constitutes “industrial activity” for the purposes of s 347 also constitutes “industrial action” for the purposes of s 417; and
(8) the Joint Development Agreement, being the enterprise agreement relied upon by the Commissioner, was approved on 13 September 2012 and had a nominal expiry date of 31 March 2016.
93 The primary judge accepted that while the Stop Work Meeting was in part directed to safety concerns, a very significant part of the reason for that meeting was to attempt to secure the return to work of Mr Genovese by strike action. His Honour noted that it was sufficient for the purposes of s 360 of the Act that one of the reasons was that latter objective.
94 The primary judge rejected the Commissioner’s pleaded case (at [46] of the further amended statement of claim) that a contravention of s 348 was made out by verbal and physical accosting of police officers and inspectors, because the proscription was directed to “action against another person with intent to coerce the other person, or a third person, to engage in industrial activity”, and there could not have been an intention to coerce them to engage in industrial activity. However, his Honour noted that that behaviour could be relied upon in support of the conclusion that Mr Parker had the requisite intention to establish a separate contravention of s 348 of the Act.
95 In relation to the contraventions pleaded against Mr Parker under ss 50, 347(f) and/or ss 347(d) and (e), 348, 355, and 417 of the Act, the primary judge concluded that:
(1) as to the first day (24 July 2014):
(a) his involvement in the Blocking Action did not fall within ss 347 or 417;
(b) his conduct in respect to the Stop Work Action and the Enforcement Action did constitute the organising of and taking of action against the site employees, Lend Lease Building and the police with the intent to coerce the site employees to engage in unprotected industrial action within the meaning of s 19(1)(b) and (c), and that such action:
(i) fell within s 347(f);
(ii) was taken with the intent to coerce the Site employees to engage in industrial action under s 417(1)(a); and
(iii) fell within s 347(d); and
(2) as to the second day, 25 July 2014, the conduct pleaded (at [46A]) fell within s 347(d) and (f).
96 The primary judge found that:
(1) it was Mr Parker who had put the motion to the meeting and thereby organised industrial action, notwithstanding the fact that he sought a motion from the floor of the meeting;
(2) it was Mr Parker’s intent to coerce the site employees to engage in industrial action on the first day, as could be inferred from his conduct, including:
(a) his statements to the assembled workers, including the untrue, or at least inaccurate, statement that Mr Genovese had done nothing wrong;
(b) his conduct in seeking the motion from the floor and his comment after the resolution was passed that he would see the workers on Monday;
(c) his failure to advise the assembled workers that the taking of strike action without complying with the terms of the Joint Development Agreement was not protected industrial action;
(d) his conduct in being part of a group, the members of which were telling workers that the site was closed from the vote and describing persons entering the site as “a fucking dog”, being language which brooked no opposition;
(e) his response to Lend Lease Building workers who opposed the vote that sometimes sacrifices had to be made for the greater good;
(f) his conduct in being part of the CFMEU persons who blocked the main site access point, which was found to be intimidatory even though workers could pass through if they wanted to; and
(3) in addressing the workers on the morning of the first day (24 July 2014), his intention was to stir up the workers and thereby put pressure on Lend Lease Building.
97 The primary judge additionally found that an intent to coerce workers was to be found in Mr Parker engaging in an intimidatory exchange with a female police officer after that police officer had yelled out that police would assist workers to go into the site, being conduct that was deliberately undertaken with full knowledge that in confronting police, he was creating an atmosphere of defiance.
98 In relation to the second day (25 July 2014), the primary judge found that Mr Parker had the same intent to coerce. This was an inference drawn from Mr Parker’s conduct on the first day and the manner in which he addressed workers on the second day, it having been found that he was urging the workers to continue their strike action in that instance. His Honour found that Mr Parker’s intent had not changed: having secured the vote on the first day, his intention or objective was to secure the continuation of the strike, and to that end, he was setting out to create an atmosphere of defiance (particularly towards the inspectors) and attempting to incite or encourage the continuation of the existing strike action. The presumption as to the intent to coerce was supported by the inferences from the evidence and was not rebutted by Mr Parker’s denials. In reaching those conclusions, his Honour rejected submissions that the conduct fell short of an intent to negate choice, and rejected the prospect that any worker who witnessed the conduct of CFMEU officers before, during and after the passing of the resolution would feel free to return to work. While that might be possible in some cases, his Honour found that it was not in this case.
99 The primary judge found that Mr Parker’s “intent” was an intent to exert pressure and negate choice by means that were unlawful or unconscionable. The pleaded allegations were thus made out, except as to the Blocking Action. Mr Parker’s conduct towards the site employees and Lend Lease Building, with the pleaded intent, was taken against them in that it was directed at or towards them. Except for the Blocking Action, the rest of the conduct pleaded and established constituted:
(1) the contravention of s 348 of the Act by organising or taking action against another person with an intent to coerce the other person and to engage in industrial activity; and
(2) the contravention of s 355 of the Act by organising or taking action against Lend Lease Building with intent to coerce it to allocate particular duties and responsibilities to Mr Genovese or designate Mr Genovese as having particular duties or responsibilities.
100 The primary judge confirmed that, in making those findings, it had been necessary for the Commissioner to prove an intent to exert pressure that, in a practical sense, negated choice and involved conduct that was unlawful, illegitimate or unconscionable. For both the s 348 and s 355 contraventions, the primary judge found that Mr Parker sought to exert pressure on Lend Lease Building to reinstate Mr Genovese, such that Lend Lease had no option other than to do so. His Honour found that Mr Parker held strong views as to the merits of Mr Genovese’s claim, believing that he had been victimised by Lend Lease Building, whose findings against him were the findings of a “kangaroo court”. His Honour found that Mr Parker knew that the passing of the resolution and the strike action was unlawful and would result in work being stopped for at least two days. Such serious disruption could not, in his Honour’s consideration, be construed as anything other than the exertion of pressure upon Lend Lease Building.
101 The primary judge found that the conclusions already reached also constituted a breach of s 417, with the actions of the site employees falling within s 19(1)(b) and (c) of the Act. This finding obviated the need to determine the alternative claim of a contravention of s 355, via the operation of s 362, by advising, encouraging or inciting industrial action. Had it been necessary to decide, his Honour would have found that this contravention was also established.
102 Finally, the primary judge found that the allegation of a breach of s 50 pleaded in the Commissioner’s further amended statement of claim against Mr Parker was not made out, because there could not be a failure by Mr Parker to comply with a provision of an enterprise agreement to which he was not a party and by which he was therefore not bound. The CFMEU was a party (and CFMEU NSW was not), but the further amended statement of claim focused on an alleged breach by Mr Parker.
103 For completeness, the primary judge noted that each of the findings was made against Mr Parker with due regard to s 140(2) of the Evidence Act.
104 The primary judge noted that the allegations against Mr Parker largely had a counterpart in the allegations against Mr Kera, which focussed on his conduct on both days (24 and 25 July 2014). His Honour found that there could be no doubt that Mr Kera was, at least in part, responsible for organising the events of those two days, with his affidavit acknowledging him having done so with Mr Parker. Mr Collier also, for example, said that Mr Kera had asked him to attend on the first day.
105 In keeping with the findings made about Mr Parker, the primary judge found that Mr Kera’s conduct prior to the Stop Work Meeting did not fall within s 347(d) or (f). However, his conduct during the course of the meeting fell within both sub-sections, and his later conduct fell within s 348. His Honour found that Mr Parker’s conduct during the meeting was that of encouraging or participating in an unlawful activity, or, alternatively, taking part in industrial action. This thus fell within s 348 as being conduct of organising and taking action against another person with intent to coerce the other person to engage in industrial activity.
106 The primary judge accepted the adverse evidence as to Mr Kera’s conduct, including him telling workers after the resolution had been passed that the site was closed from the vote, and querying workers approaching the main site access point by asking where they were going.
107 In relation to the second day (25 July 2014), the primary judge noted that Mr Kera, in his affidavit, accepted that he was present and spoke to the workers. His Honour accepted evidence to the effect that Mr Kera was in close proximity to Messrs Michael Greenfield and Collier when the inspectors were referred to as part of the Lend Lease Building “intimidation squad” and “dogs”, as well as when Mr Michael Greenfield told his son not to stand too close to the inspectors as “they have fleas”. His Honour concluded that the intent to coerce workers was made out by reference both to the role played by Mr Kera during the course of the meeting on the first day, including demonstrating support for what Mr Parker was urging, and his statements made to the workers after Mr Parker had spoken, including to the effect that the situation with Mr Genovese had to stop and that he had to be reinstated immediately.
108 The primary judge found that Mr Kera’s urging upon the workers to take industrial action and coerce them into doing so was given further support by his reference to the earlier suicide of a worker at the site, which had no ostensible relevance to Mr Genovese’s situation and potential return to work. His Honour found that this statement was not merely meant to be informative, but, rather, was part of the pressure being exerted to take industrial action, and that Mr Kera’s intent in making this statement was to “stir up” the assembled workers and thereby coerce them. That conduct could not, in his Honour’s view, be divorced from the much earlier meeting in February 2014 when Mr Kera told those present that the Lend Lease Building investigation against Mr Genovese had to cease. It was also found to unequivocally be the taking of action against Lend Lease Building, and could also not be divorced from the earlier March 2014 meeting with Lend Lease Building, when he told those present to cease the investigation and that, if it proceeded, “we will dispute it”. Mr Kera’s evidence that he merely asked that the investigation cease was rejected by his Honour.
109 The intention to coerce also carried over to the second day (25 July 2014), as evidenced by what Mr Kera said to the workers, and his association with what was said by Messrs Michael Greenfield, Darren Greenfield and Collier. The primary judge accepted that Mr Kera had told the workers, among other things, that “This is fucking Australia” and “We’re not fucking dogs”, which, together with the balance of what was said, strongly supported a finding that Mr Kera had an intention to coerce the employees.
110 The primary judge found the allegations in relation to Mr Kera having the intent to coerce the site employees to engage in unprotected industrial action (s 19(1)(c)), and industrial action within the meaning of s 417(1)(a), as confined to the Stop Work Meeting and Enforcement Action (that is, excluding the Blocking Action) were made out. His Honour found that Mr Kera thereby contravened s 348. This also constituted organising or taking action against Lend Lease Building and the site employees with intent to coerce Lend Lease Building to allocate particular duties and responsibilities to Mr Genovese, or designate him as having particular duties or responsibilities, and thereby contravened s 355 of the Act.
111 The primary judge found that the contravention of s 417 was also made out, as was the alternatively pleaded contravention under s 355 by way of s 362 (somewhat inconsistently, in respect of Mr Parker, this alternative was found not to be necessary to resolve, but was found to be made out if it had been necessary. That is presumably the way in which his Honour’s finding in respect of Mr Kera should also be read, as the treatment of this issue in respect of Mr Reeves and the other individual respondents indicates this was intended).
112 The primary judge found that the alleged contravention of s 50 by Mr Kera was not made out. This was for the same reasons as in respect of Mr Parker – namely, that he was not a party to, or bound by, the Joint Development Agreement.
113 The primary judge noted that the allegations against Mr Parker were again largely made against Mr Reeves, but noted that he was not only a delegate and representative of the CFMEU and CFMEU NSW, but also an employee of Lend Lease Building. His Honour described the participation of Mr Reeves over the two days as being more confined than Messrs Parker and Kera, but greater than some of the other individual appellants. That was because he associated himself with Messrs Parker and Kera on the stairway when addressing the assembled workers, and told those workers that Mr Genovese had been treated very badly by Lend Lease Building and must be reinstated. Moreover, Mr Reeves was also present on the second day and was heard to tell the workers that they should make a decision like they had on the first day, and that they needed to stand up to “them”, meaning Lend Lease.
114 The primary judge concluded that, notwithstanding that his role was less immediate than that of Mr Parker, Mr Reeves nevertheless participated in the “organising” of the events of 24 and 25 July 2014, in the sense that that term encompasses the concept of “marshalling” or “rallying”, such that Mr Reeves took action against the site employees and Lend Lease Building with an intention to coerce the employees. His Honour concluded that the coercion was most evident in the urging of the employees on the second day to make a decision like on the first day and to stand up to Lend Lease Building. This was also evident from Mr Reeves’ comment on the first day that Lend Lease Building was incompetent. Thus, excluding the Blocking Action, his Honour found that the contravention of s 348 was made out, as was the contravention of s 355, as the action was taken against Lend Lease Building with intent to coerce Lend Lease into allocating particular duties and responsibilities to Mr Genovese or so designating him as having particular duties and responsibilities. Likewise, his Honour found that the proven conduct constituted an organising of industrial action on both days, contrary to s 417.
115 As with Messrs Parker and Kera, the primary judge found that it was not necessary to resolve the pleaded alternative to a breach of s 417, being a breach of s 355 by way of s 362.
116 Unlike Messrs Parker and Kera, however, the primary judge found that the s 50 contravention alleged against Mr Reeves was made out. His Honour found that, as an employee of Lend Lease Building, Mr Reeves was a party to and was bound by the Joint Development Agreement, and that the action taken by Mr Reeves was taken in his capacity as an employee and as an official of the CFMEU. Notwithstanding his dual capacity, his conduct remained that of an employee who failed to comply with the terms of cls 19 and 20 of the Joint Development Agreement. His Honour found that this was a contravention of “a term of an enterprise agreement”, and hence was a contravention of s 50.
117 The findings that the primary judge made about Mr Genovese did not include any of contravention. Mr Genovese is not a party to the appeal or cross-appeal, such that those findings do not warrant any detailed consideration here. It suffices to note that Mr Genovese took no part in the second day (25 July 2014), and that his Honour found that his conduct on the first day (24 July 2014), whilst prominent, was of a very different character to that of Messrs Parker and Kera. Essentially, his Honour gave Mr Genovese the benefit of the doubt as to his understanding of what the meeting and its outcome would likely entail. This conclusion reinforces the extent to which his Honour’s conclusions about the various individual respondents was influenced by the impression each made in giving evidence. The main value of referring to his Honour’s findings is that they evince a carefully discriminating approach to the pleaded elements, to the direct evidence and credit of witnesses, and to the inferences that could be drawn.
118 Once again, most of the allegations made against Mr Parker were also made against Mr Michael Greenfield. His participation was found to be very different to that of Messrs Parker and Kera. His Honour was unable to make any finding that Mr Michael Greenfield organised the events on the first day (24 July 2014) or took action against the site employees or Lend Lease Building. His Honour was also unable to make any finding of intent to coerce. Mr Michael Greenfield’s conduct was characterised by his Honour as merely being the conduit by which much of the conduct of Mr Parker took place. While Mr Michael Greenfield did take some part in the events of the first day, this did not rise above being an observer, rather than a participant.
119 The primary judge viewed the second day (25 July 2014) quite differently. His Honour found that Mr Michael Greenfield’s conduct was more vocal and active on that day, noting the comments that he made to inspectors that “I hope your kids work in the construction industry then they will come running to us” and “Wait till the ALP get in and you will be working at Maccas”, which his Honour accepted to have been said despite Mr Michael Greenfield denying the same.
120 Mr Michael Greenfield was also found to have been involved in the exchange with his father in which reference was made to the inspectors being “dogs” and having fleas. Despite this, the primary judge was not satisfied that the conduct of Mr Michael Greenfield was taken against the site employees or Lend Lease Building with intent to coerce the site employees. His Honour found that the alleged contraventions of ss 348 and 355 were therefore not made out. His Honour then made a positive finding in Mr Michael Greenfield’s favour, namely that he knew very little of the facts surrounding Mr Genovese other than the support lent to him by the CFMEU.
121 The primary judge similarly found that Mr Michael Greenfield’s presence and participation in the events on the first day (24 July 2014) fell short of marshalling or rallying those present so as to be a contravention of s 417, but that his conduct on the second day (25 July 2014) did meet that description, such that it did establish a contravention of s 417. As with Messrs Parker and Kera, the alleged contravention of s 50 was not made out, for the same reason that Mr Michael Greenfield was not a party to the Joint Development Agreement and therefore not bound by it.
122 Once again, most of the allegations made against Mr Parker were also made against Mr Collier, with the focus again being on the events of both 24 and 25 July 2014. The primary judge found that, although Mr Collier’s involvement was less than that of Mr Parker, it nonetheless amounted to the organising of and taking action against the site employees, Lend Lease Building and the inspectors, as pleaded against him. His Honour found that Mr Collier was still a person who organised or took action, even though others had taken a more prominent role. His Honour noted that to organise “encompasses the concept of ‘marshalling’ or ‘rallying’, which may inherently involve a number of discrete acts directed at achieving cohesiveness in a result”, quoting from Director of the Fair Work Building Inspectorate v Robinson [2016] FCA 525; 241 FCR 338 at [53].
123 The primary judge concluded that Mr Collier’s involvement in the events of the first day (24 July 2014) brought him within the reach of s 348 and the description of a person who “organises” action or the conduct of a person “who organises and takes action”, by reason of him:
• bringing a loudhailer to the meeting;
• telling the workers approaching the Main Site Access that there was to be a meeting across the road;
• announcing over the loudhailer that there was to be a meeting; and
• during the course of the meeting, positioning himself in close proximity (in particular) to Mr Parker when Mr Parker was addressing the meeting and thereby associating himself with what was being said by Mr Parker.
124 The primary judge found that Mr Collier also took an active part in the events on the second day (25 July 2014) by reason of the fact that he introduced the meeting and said to the assembled workers, “[g]uys before I hand it over, I just want you to know that we have some dogs in the crowd”. His Honour found that although Mr Collier’s involvement in the Blocking Action did not fall within the scope of s 348, it could be taken into account in characterising his conduct that took place during the meeting that followed. That conduct was found to have been with intent to coerce the site employees. Mr Collier’s conduct was found to be sufficient to find that intention, and he had done nothing to rebut that inference or presumption. This included his less public conduct in mouthing through a window the words “[y]ou’re a fucking grub, fucking dog” in an attempt to intimidate the inspectors, which his Honour found formed part of the factual matrix from which a finding as to intent to coerce the site employees could be based.
125 The primary judge found it far easier to find an intent to coerce in respect of Mr Collier’s conduct on the second day, because no other inference was open by reason of him repeatedly referring to the inspectors as “dogs” and reading out one of their mobile numbers to the entirety of the assembled workers, which his Honour also found formed part of the factual matrix against which an intention to coerce the site employees was based. The contravention of s 348 was therefore found to have been made out for both days.
126 The primary judge also found that the contraventions of s 355 were made out. Mr Collier’s claim not to have known that the resolution had passed to support Mr Genovese’s return to work until after the workers dispersed on the first day was rejected by his Honour, given his close proximity to Mr Parker during the meeting. His Honour found that Mr Collier knew what was being said and why the assembled workers had voted as they did.
127 The primary judge accepted that Mr Collier’s conduct constituted organising industrial action in contravention of s 417 of the Act.
128 The allegation of a breach of s 50 by Mr Collier was rejected for the same reason as for the other non-employee individual appellants, namely that Mr Collier was not a party to the Joint Development Agreement and was therefore not bound by it.
129 Mr Darren Greenfield was also alleged to have breached ss 348, 355 and 417 as well as s 50. The primary judge found that the s 348 allegations failed for the stated reason that no finding could be made that he acted with intent to coerce on the first day (24 July 2014). His Honour also found that the pleaded conduct of vilifying and abusing the inspectors could not be transposed so as to become action taken against the site employees and Lend Lease Building. The s 348 allegations thus also failed on the conduct element independently of the state of mind element.
130 The primary judge rejected the s 355 allegations upon the basis that no finding could be made that Mr Darren Greenfield acted with intent to coerce Lend Lease Building to allocate particular duties to Mr Genovese. That conclusion must be understood in the context of his Honour’s comprehensive consideration of the evidence.
131 The primary judge was satisfied that Mr Darren Greenfield organised industrial action on both days, and thereby contravened s 417. That was because of the findings made by his Honour that:
(1) on the first day (24 July 2014), he participated in the events of that day by being part of the CFMEU group assembled in the vicinity of the main site access point for the purpose of presenting “a physical demonstration of strength by the CFMEU”, and engaged in such conduct both before and after the resolution was passed; and
(2) on the second day, he yelled out that “[t]hey’re nothing but dogs”,
which went beyond mere presence or association and amounted to marshalling or rallying.
132 The allegation that Mr Darren Greenfield contravened s 50 of the Act failed for the same reason as for the other non-employee individual respondents, namely that he was not a party to the Joint Development Agreement and was therefore not bound by it.
133 Mr Sloane was also alleged to have breached ss 348, 355 and 417, as well as s 50.
134 The s 348 allegations failed as the primary judge made no findings that Mr Sloane acted on either day of events with intent to coerce site employees to engage in industrial action. His Honour said that a finding could be made that Mr Sloane took part in the events of the second day (25 July 2014) by saying to an inspector named Mr O’Connor that he hoped he got his spelling right, and tapping Mr O’Connor on the shoulder as he walked past. His Honour accepted that Mr Sloane did this to make sure that the derision directed to the inspectors at the meeting was directed to the “right people”. However, his Honour concluded that this finding went nowhere in the absence of a finding that, by so taking part, Mr Sloane intended to coerce the site employees. That finding was not made. His Honour also concluded that the parallel allegation under s 355 failed because no finding could be made that Mr Sloane’s involvement on the first day (24 July 2014) was taken with intent to coerce Lend Lease Building to allocate particular duties and responsibilities to Mr Genovese, or to designate Mr Genovese as having particular duties or responsibilities.
135 The primary judge found that Mr Sloane’s conduct on both days did constitute breaches of s 417 by organising industrial action. This was due to his involvement on the first day as part of the CFMEU group congregating outside the main site access point and attending the meeting, as well as on the second day, including his conduct in tapping Mr O’Connor on the shoulder as an act of derision directed at the inspectors present. His Honour rejected Mr Sloane’s evidence that this was intended to be a joke.
136 The allegation that Mr Sloane contravened s 50 of the Act failed for the same reason as for the other non-employee individual respondents, namely that he was not a party to the Joint Development Agreement and was therefore not bound by it.
137 Mr Taylor was alleged to also have breached ss 348, 355 and 417, as well as s 50.
138 The s 348 allegations failed because the primary judge made no findings that Mr Taylor acted with intent to coerce site employees to engage in industrial action on either day. His Honour said that his acceptance of evidence that Mr Taylor yelled out that the inspectors were trying to intimidate employees present went no further in the absence of a finding of intent to coerce. His Honour also concluded that the parallel allegation under s 355 failed because no finding could be made that Mr Taylor’s involvement on the first day was taken with intent to coerce Lend Lease Building to allocate particular duties and responsibilities to Mr Genovese, or designate Mr Genovese as having particular duties or responsibilities.
139 The primary judge found that Mr Taylor’s conduct on both days did constitute breaches of s 417 by organising industrial action by site employees. In the case of the first day (24 July 2014), that was by his being part of the CFMEU group assembled in the vicinity of the main site access point for the purpose of presenting a physical demonstration of strength by the CFMEU, being conduct in which he engaged both before and after the resolution was passed. In the case of the second day (25 July 2014), that was by yelling out that the inspectors were trying to intimidate the workers, and by saying that there are “dogs over there”. His Honour characterised the conduct as “organising” in the sense of marshalling or rallying, which necessarily went beyond mere presence or association.
140 The allegation that Mr Taylor contravened s 50 of the Act failed for the same reason as for the other non-employee individual respondents, namely that he was not a party to the Joint Development Agreement and was therefore not bound by it.
141 Mr Auimatagi was alleged to also have breached ss 348, 355 and 417, as well as s 50.
142 The s 348 allegations failed because the primary judge made no findings that Mr Auimatagi acted with intent to coerce site employees to engage in industrial action on either day. His Honour expressly accepted Mr Auimatagi’s denial of any intent to coerce.
143 The s 355 allegations failed because the primary judge could make no finding that Mr Auimatagi’s involvement in either the Stop Work Action or Enforcement Action was with intent to coerce Lend Lease Building to allocate particular duties and responsibilities to Mr Genovese, or to designate Mr Genovese as having particular duties or responsibilities.
144 The primary judge found that the s 417 allegation was made out in respect of both days of events, with Mr Auimatagi’s involvement being found to be much the same conduct as that of others in marshalling and rallying the Stop Work Employees, thereby falling within the concept of “organising”. His Honour made specific reference to Mr Auimatagi’s conduct on the first day. That conduct included being present at the main site access point from sometime after 6.00 am in the company of, among others, Messrs Parker, Kera and Collier, advising employees attending for work that there was to be a meeting across the road, attending the Stop Work Meeting and standing on the staircase from which Mr Parker and others addressed the assembled workers. His Honour found that although Mr Auimatagi’s involvement was nowhere near as extensive as that of Messrs Parker, Kera and Collier, his conduct in its entirety was sufficient to fall within the scope of “organising” industrial action.
145 The allegation that Mr Auimatagi contravened s 50 of the Act failed for the same reason as for other non-employee individual respondents, namely that he was not a party to the Joint Development Agreement and was therefore not bound by it.
The basis for liability of the Unions
146 The primary judge considered the pleaded case for s 793 liability on the part of both Unions, as arising from the conduct of Mr Parker, and the pleaded defence. His Honour noted the parallel pleadings in respect of the conduct of Messrs Kera, Reeves, Genovese, Michael Greenfield, Collier, Darren Greenfield, Sloane, Taylor and Auimatagi. His Honour rejected a submission by the Commissioner that an earlier admission should not be permitted to be withdrawn. As that issue is taken no further on appeal, it does not warrant further consideration.
The Unions and the Joint Development Agreement
147 The primary judge noted that only the CFMEU, and not the CFMEU NSW, was a party to the Joint Development Agreement. The primary judge found that although, as canvassed above, individual liability under s 50 was not found for Messrs Parker, Kera, Michael Greenfield, Collier, Darren Greenfield, Sloane, Taylor and Auimatagi as to their having failed to initiate or engage in the dispute resolution process required by the Joint Development Agreement, his Honour nevertheless concluded that, in engaging in the conduct that they each pursued, each was acting in their capacity as an officer, employee or agent of the CFMEU. As such, the conduct engaged in was to be taken, for the purposes of the Act, to have been engaged in by the CFMEU. His Honour found that the CFMEU thereby failed to engage the dispute resolution provision in cl 19 of the Joint Development Agreement and breached cl 20.
148 The primary judge observed that not all of the contraventions pleaded against each of the individual appellants had prevailed. However, to the extent that contraventions were established, his Honour concluded (at [540]) that:
• in engaging in the conduct that they each pursued, each was acting in their capacity as an officer, employee or agent of both the CFMEU and the CFMEU NSW;
• the conduct thereby engaged in is to be taken for the purposes of the Fair Work Act to have been engaged in by the CFMEU and the CFMEU NSW; and
• the CFMEU and the CFMEU NSW thereby contravened those provisions of the Fair Work Act which have been contravened by the failure to engage in the dispute resolution provision and breached cl 20 of the Agreement.
THE PENALTY FINDINGS AND ORDERS MADE BY THE PRIMARY JUDGE
149 The maximum penalty per contravention was $10,200 for each individual respondent and $51,000 for each union respondent. The liability findings resulted in a complex matrix of penalty findings being required.
150 At the hearing of the appeal, senior counsel for the appellant handed up a table that provided a helpful visual overview of the penalties that were imposed by the final orders made by the primary judge, including those contraventions which:
(1) were not found to be made out;
(2) are the subject of the cross-appeal; and
(3) for which no penalty was imposed.
151 With some editorial adjustment and a degree of rearrangement so that the findings as to coercion of site employees (s 348) and coercion of Lend Lease Building (s 355) are grouped together for each of the first and second days, and cross-references to the penalty judgment that are not presently required are removed, the information in that table was as follows, with the blanks indicating the absence of a contravention finding:
1st day (24 July 2014) | 2nd day (25 July 2015) | s 417 | s 50 | Total | |||
s 348 | s 355 | s 348 | s 355 | ||||
CFMEU | $51,000 x 4 = $204,000 | $51,000 x 4 = $204,000 | $51,000 x 4 = $204,000 | $51,000 x 4 = $204,000 | $51,000 x 9 = $459,000 | $51,000 | $1,326,000 |
CFMEU NSW | $51,000 x 4 x 75% = $153,000 | $51,000 x 4 x 75% = $153,000 | $51,000 x 4 x 75% = $153,000 | $51,000 x 4 x 75% = $153,000 | $51,000 x 9 x 75% = $344,250 | $956,250 | |
Mr Parker | $9,200 | $9,200 | $9,000 | $9,000 | $9,000 | $45,400 | |
Mr Kera | $8,250 | $8,250 | $8,250 | $8,250 | $8,250 | $41,250 | |
Mr Reeves | $7,000 | $7,000 | $7,500 | $7,500 | $7,000 | $5,000 | $41,000 |
Mr Collier | $8,000 | $8,000 | $8,200 | $8,200 | $8,000 | $40,400 | |
Mr Michael Greenfield | $3,000 | $3,000 | |||||
Mr Darren Greenfield | $5,000 | $5,000 | |||||
Mr Sloane | $5,500 | $5,500 | |||||
Mr Taylor | $4,500 | $4,500 | |||||
Mr Auimatagi | $3,000 | $3,000 | |||||
Total: | $2,471,300 | ||||||
152 The following observations arise from the above table:
(1) for each of the s 348 and 355 contraventions on both 24 and 25 July 2014 that were established against Messrs Parker, Kera, Reeves and Collier, for which individual penalties were imposed that ranged from $7,000 to $9,200 (just under 70% to 90% of the individual maximum), the primary judge imposed:
(a) 16 corresponding penalties of $51,000 (100% of the maximum) on the CFMEU; and
(b) 16 corresponding penalties of $38,250 (75% of the maximum) on the CFMEU NSW;
(2) for each of the nine contraventions of s 417 that were established against each of the nine individual appellants, for which individual penalties were imposed that ranged from $3,000 to $9,000 (just under 30% to just under 90% of the individual maximum), the primary judge imposed:
(a) nine corresponding penalties of $51,000 (100% of the maximum) on the CFMEU; and
(b) nine corresponding penalties of $38,250 (75% of the maximum) on the CFMEU NSW; and
(3) for the single s 50 contravention that was established against Mr Reeves, for which a penalty of $5,000 was imposed (just under 50% of the maximum), the primary judge imposed a corresponding penalty of $51,000 (100% of the maximum) on the CFMEU and a corresponding penalty of $38,250 (75% of the maximum) on the CFMEU NSW.
AMENDED NOTICE OF APPEAL, NOTICE OF CROSS-APPEAL AND AMENDED NOTICE OF CONTENTION
153 The appeal, by way of an amended notice of appeal, challenges significant aspects of the primary judge’s findings on liability and on penalty. The appellants also challenge the publication orders by asserting an absence of power on the part of the primary judge to make the orders, and also challenging the sufficiency of the supporting evidence, the way the orders have been framed and their utility. Aspects of the appeal grounds are sought to be met by the Commissioner’s notice of contention. It is therefore necessary to consider some of the appeal grounds in conjunction with the corresponding notice of contention ground.
154 The final form of the amended notice of appeal dated 1 June 2018 was filed on 8 June 2018, after the appeal hearing, to reflect the addition by the time of the appeal hearing of ground 1A, the deletion of a particular of ground 10 and the abandonment of ground 14.
155 In relation to the notice of cross-appeal, the Commissioner seeks orders setting aside contested findings on liability by which aspects of his case failed, and declarations of the kind sought before the primary judge, rather than remittal. The Commissioner’s case in that regard represents a challenging application of the principles attached to appeals by way of rehearing.
The nature of the liability appeal
156 The appellants contend that their challenges to findings of fact on questions of liability are made in accordance with the principles in Warren v Coombes (1979) 142 CLR 531 at 551, as to findings based on inferences from facts; and in Fox v Percy [2003] HCA 22; 214 CLR 118 at [26]-[29], as to findings based on credibility assessments. The Commissioner describes the appellants’ submissions on the liability appeal as masking the difficulties that they must overcome to overturn the primary judge’s findings of fact.
157 The careful navigation of this topic is assisted by a decision handed down after this appeal was heard, Aldi Foods Pty Ltd v Moroccanoil Israel Ltd [2018] FCAFC 93; 358 ALR 683, and in particular the judgments of Allsop CJ at [2]-[10] and Perram J at [45]-[54]. Perram J provided the following concise precis of the appellate function to be applied in this case (at [45]-[48]):
How should this Court in the exercise of its appellate jurisdiction approach the review of such findings? One begins with the proposition that this Court’s appellate jurisdiction involves an appeal by way of rehearing (Branir Pty Ltd v Owston Nominees Pty Ltd (No 2) (2001) 117 FCR 424; [2001] FCA 1833 (Branir) at [20] per Allsop J, Drummond and Mansfield JJ agreeing). Next, it is established that in an appeal by way of rehearing what is involved is the correction of error (Branir at [22]). Error is not demonstrated merely because the appellate court disagrees with the primary judge. At the risk of stating the obvious, error is demonstrated where it is shown that some aspect of the trial judge’s reasoning is wrong. How the trial judge’s reasoning may be shown to be wrong depends on what that reasoning is about (Branir at [24]). At one extreme, where no deference at all is shown to a trial judge’s conclusions, are errors of law. An appellate court is not influenced in its view of the law by the conclusions of a trial judge and, in this case, mere disagreement on the part of the appellate court with the trial judge will justify the conclusion that an error has been made.
At the other extreme are a trial judge’s finding of fact where the credibility of witnesses is involved. In such cases, it is accepted that the trial judge enjoys very considerable advantages over an appellate court by reason of having seen the witnesses and having been immersed in the milieu of the trial. Where this is so it is commonly said that the appellate court will not depart from the trial judge’s conclusions unless they are shown to be wrong by reference to ‘incontrovertible facts or uncontested testimony’ (Fox v Percy (2003) 214 CLR 118; 197 ALR 201; 38 MVR 1; [2003] HCA 22 (Fox v Percy) at [28]) or otherwise be ‘contrary to compelling inferences’ (Fox v Percy at [29]).
Between these two extremes lies a grey area in which the amount of deference shown to a trial judge’s conclusions is a function of the relative advantage enjoyed by the trial judge over the appellate court. That the appellate court can review in such cases is not in doubt. Speaking of the question of when an appellate court can review inferences drawn from facts already found, the High Court explained it this way in Warren v Coombes (1979) 142 CLR 531 at 551; 23 ALR 405 at 423 (Warren v Coombes):
‘[I]n general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge. In deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusion of the trial judge, but, once having reached its own conclusion, will not shrink from giving effect to it.’
It has been subsequently explained, if it were necessary, that the last sentence means that the appellate court should not eschew review once it has perceived error (see Minister for Immigration, Local Government and Ethnic Affairs v Hamsher (1992) 35 FCR 359 at 369; 26 ALD 406 per Beaumont and Lee JJ; Branir at [14]–[15]).
158 Perram J then (at [49]) discussed what his Honour described as the indeterminate area between pure questions of law where no deference to the views of a primary judge is required, and findings of fact based entirely upon credit findings which require substantial deference due to the inevitable advantages enjoyed by seeing and hearing witnesses give evidence. In this case, the grey area includes legal questions that are affected by value driven assessments, such as the evaluative question of whether there has been negation of choice when considering the concept of coercion, and fact finding which is based not just on observable facts or conclusions, but also inferential reasoning.
159 The Commissioner points out that the appellants’ grounds of appeal did not challenge any credibility findings, and are largely confined to challenges to findings of fact as not being supported by the evidence that was before the primary judge. In substance, the Commissioner submits that it is not enough to focus narrowly on the final findings made as to contravention without having due regard to the rest of his Honour’s detailed reasons and cumulative findings of fact about each of the individual appellants that led to those conclusions. The Commissioner relies on the onus on the appellants not just to assert error, but also to establish it. This obligation also applies to the Commissioner in establishing some of the notice of contention grounds that assert that his Honour failed to address an issue.
Appeal ground 1 (on liability) – asserted error in finding that the nine individual appellants organised industrial action on the second day, 25 July 2014, contrary to s 417 of the Act
Appeal ground 1A (on liability) – asserted error in finding that the contraventions of ss 348 and 355 took place on the second day, 25 July 2014
Notice of contention ground 3 (related to appeal ground 1) – sufficiency of evidence to support a finding upon an alternative basis that the nine individual appellants organised industrial action on the second day, 25 July 2014, contrary to s 417 of the Act
160 Ground 1 of the amended notice of appeal states:
The primary judge erred in finding that a number of appellants organised industrial action at a meeting on the 25th of July in circumstances where, on the evidence, industrial action did not result from that meeting and taken at its highest, the evidence showed that there was an unsuccessful attempt to organise the taking of industrial action. According to Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2015) 230 FCR 298 at [145], conduct which does not result in the taking of industrial action cannot constitute the organising of industrial action under s 417 of the FW Act.
161 Ground 1 relies upon it being established that there was insufficient evidence of a causal link between the conduct at the second site meeting on 25 July 2014 and the ensuing non-attendance of workers at the site that day to support the primary judge’s findings. The particulars in support of this ground identify the paragraphs of the further amended statement of claim in which the contraventions alleged are set out, and the corresponding findings made by the primary judge against each of the nine individual appellants and the CFMEU and CFMEU NSW, by which his Honour is said to have erred. Those particulars are:
Appellant | Pleaded contravention reference | Contravention finding |
Mr Parker | [56] and [122] | [423] |
Mr Kera | [64] and [125] | [439] and [440] |
Mr Reeves | [70] and [128] | [448] |
Mr Michael Greenfield | [85] and [134] | [472] and [473] |
Mr Collier | [91] and [137] | [485] |
Mr Darren Greenfield | [97] and [140] | [494] and [495] |
Mr Sloane | [103] and [143] | [502] to [504] |
Mr Taylor | [109] and [146] | [514] and [515] |
Mr Auimatagi | [115] and [149] | [523] to [525] |
162 Ground 1A of the amended notice of appeal states:
Further to ground 1, the primary judge erred in making the findings that contraventions of ss 348 and 355 took place on the 25th of July when it was an element of those contraventions that the conduct complained of was unlawful, illegitimate or unconscionable. The primary judge erred in making a finding that industrial action was organised on 25 July and was therefore in error in finding that the meeting gave rise to unlawful, illegitimate or unconscionable conduct. The findings were made at [the balance of this ground of appeal and its particulars is summarised in the following table:]
Appellant | Contravention finding |
Mr Parker | [405]-[422] |
Mr Kera | [436]-[438], plus [67] of the penalty judgment |
Mr Reeves | [445]-[447] |
Mr Collier | [477]-[484] |
The Unions | [540] |
163 Ground 1A raises a question as to whether the non-attendance of workers at the site on the second day (25 July 2014) was organised at all on that day by Messrs Parker, Kera, Collier and Reeves, so as to give rise to any unlawful, illegitimate or unconscionable conduct.
164 Ground 3 of the Commissioner’s amended notice of contention states:
The primary judge’s findings at paragraphs [423], [439]-[440], [448], [472]-[473], [485], [494]-[495], [502]-[504], [514]-[515] and [523]-[525] of the 24 May 2017 judgment that the First to Third and Fifth to Tenth Respondents contravened section 417 by organising industrial action on 25 July 2014 should be affirmed on the grounds that:
a. the primary judge made factual findings that employees who attended the meeting on 25 July 2014 failed or refused to attend for work at Barangaroo at 7 am at paragraphs [214] and [216] and [225] of the 24 May 2017 judgment;
b. in addition, there was evidence adduced by the Commissioner from witnesses Baker, Melrose, Smith, Waters, Cleary and Tadros which supported and safely formed the basis for the same findings; and
c. all of that evidence referred to in (a) and (b) in combination supports the finding that the First to Third and Fifth to Tenth Respondents by their conduct on 25 July 2014 contravened section 417.
165 The substance of the Commissioner’s ground of contention points to additional findings on the evidence by the primary judge that, it is contended, support the contravention findings appealed against by the appellants.
166 Both ground 1 and the related or consequential ground 1A turn on the appellants’ effective assertion that, whatever may be said about what took place on the first day (24 July 2014), the meeting on the second day (25 July 2014) did not give rise to any “industrial action”, as defined in s 19(1) of the Act, on that second day. In response, the Commissioner points to findings of fact made by the primary judge that the conduct of the appellants on the second day caused some of the site employees who had attended the site and the meeting to engage in industrial action by not working either at all that day, or for a period of time on that day, in disobedience of orders made by the Fair Work Commission. This is submitted notwithstanding that the case at trial involved a greater focus on the continuity of industrial action over the two days, rather than on the second day separately. The appellants object to the Commissioner’s approach upon the basis that it entails a departure from the way in which the trial was conducted.
167 Apart from the question of how the trial was conducted, the two areas of dispute boil down to whether the primary judge had before him sufficient evidence to make the findings that he did, and, in any event, whether those findings went far enough to establish the contraventions.
168 The appellants’ argument on ground 1 turns on the undisputed proposition that the s 417 prohibition on organising or engaging in industrial action prior to the expiry of an enterprise agreement requires that industrial action has, in fact, taken place: Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2015] FCAFC 25; 230 FCR 298 at [145]. The appellants point out that s 417 is not an attempt or inducement provision, and incitement was not relied upon at trial. The appellants assert the inadequacy of the evidentiary foundation for the finding that site employees engaged in industrial action in response to the appellants’ conduct in organising that action. The substance of the complaint is that the primary judge made no specific finding, and could not on the available evidence have made any such specific finding, that industrial action was taken to have arisen from the meeting on the second day (25 July 2014) (as opposed to arising as a flow-on from the meeting on the first day). That is asserted primarily because, it is contended, there was no proscribed organising of industrial action on the second day.
169 Ground 1A flows from the appellants’ argument in relation to ground 1, because in the absence of the finding of industrial action on the second day, the meeting on that day could not of itself give rise to unlawful conduct. This is in the context of it being an element of ss 348 and 355 that the conduct complained of was unlawful, illegitimate or unconscionable (as the primary judge found in relation to Messrs Parker, Kera, Reeves and Collier, and through them the two Unions, but did not find in relation to Messrs Michael Greenfield, Darren Greenfield, Sloane, Taylor or Auimatagi). The necessary findings of intent to coerce in turn depended upon the finding of unlawful conduct arising from the meeting on the second day (25 July 2014), rather than anything that might have happened on the first day.
170 The Commissioner takes a more holistic view of the evidence that was before the primary judge, and of his Honour’s findings. That includes, in particular, his Honour having regarded the industrial action taken over the two days as being continuous, with the s 417 penalties being imposed upon the basis of a single course of conduct straddling those two days, as indeed was pleaded at [47] of the further amended statement of claim. The Commissioner also relies upon findings made by his Honour as to what flowed from the meeting on the second day, as opposed to flowing only from the first day. The Commissioner particularly relies upon the fixed work start time of 7.00 am, and the action of some site employees in not attending at the site by that time, as being sufficient to require their employers not to pay the affected site employees for four hours on that day, as per s 474(1)(b) of the Act. In particular, the Commissioner points to the evidence establishing that:
(1) employees of the subcontractor Precision Air attended the meeting on the second day and did not start work until 7.30 am, instead of the fixed start time of 7.00 am;
(2) none of the employees of the subcontractor Erect Safe Scaffolding attended for work on the second day, although some did collect their tool belts and equipment: [216]; and
(3) one inspector observed that some workers who attended the meeting on the second day had not entered the site at 7.15 am, and another inspector made a similar observation at 7.50 am: [221], [223], [225].
171 The Commissioner notes that the above findings of the primary judge were supported by specific evidence referred to and accepted by his Honour, as well as other undisputed evidence that was not specifically referred to. Such evidence includes that of Mr Waters of Mirvac, who deposed to approximately 20% of site employees who attended the meeting having remained outside the site until at least 8.00 am. This was further reflected in the findings made in his Honour’s penalty judgment as to the involvement of individual appellants in organising the meeting and industrial action on the second day (25 July 2014).
172 The appellants’ response to the Commissioner’s argument that the late start to work constituted part of the industrial action on the second day is that that argument is a departure from the way in which the Commissioner’s case was run below, with particular reference to the following passage at [56(b)] of the Commissioner’s submissions below on penalty (emphasis added):
Holding the Stop Work Meeting on 24 July 2014, the speeches and the Resolution made at that meeting and the industrial activity that followed that day were actions against Lend Lease and the site employees taken with the intent to coerce Lend Lease to reinstate Genovese: s.355 of the FWA. The statements made at the meeting on 25 July 2014 are also actions taken against Lend Lease with the intent to coerce Lend Lease to reinstate Genovese and fall within s.355 although the Director accepts that the Respondents did not continue industrial action on 25 July 2014.
173 The appellants contend that, had the case below been run in that way, there would have been a lively debate about causation, because it would have been argued that, taking the Commissioner’s case at its highest based on the conduct of Mr Parker, there was no inducement of employees to stand around between 7.00 am and 7.30 am on the second day, rather than to return to work. The Commissioner’s answers to this asserted concession were as follows:
(1) the reference to “Respondents” in the last sentence of the Commissioner’s penalty submissions reproduced above was a deliberate reference (for the purposes of s 355, rather than s 417) to the fact that the individual respondents did not themselves engage in industrial action per s 19(1)(c) of the Act, because they failed to get a vote not to return to work on the second day, and because none of them apart from Mr Reeves was a site employee, where the s 19(1)(c) industrial action relied upon was confined to that of the site employees;
(2) the above reading of the penalty submission accords with the further amended defence at [50(a)];
(3) the primary judge’s findings were to the effect that the holding of the meeting interrupted the normal obligations of the subcontractor site employees to go to work at 7.00 am, which, for some, was an hour late, for others, not as late as that, and for others still, a failure to attend at all. The reason for that taking place was a live issue at the trial (being the subject of some cross-examination), and was not an issue advanced for the first time on appeal.
174 The asserted concession that the appellants relied upon has not been made out, even if a submission made at the penalty stage could be a concession that could have any bearing on the conduct of the trial as to liability, which seems doubtful. The Court was not otherwise shown how the Commissioner did not rely at trial on site employees starting work late as part of his case that industrial action took place on the second day after the meeting that morning. In any event, the Commissioner’s case did not depend only on site employees who were late for work on the second day, but also extended to a number of workers who did not attend at all. The appellants did not identify any defect in the evidence in that respect.
175 Returning to the central issue of the sufficiency of evidence of industrial action by site employees flowing from the meeting on the second day (as opposed to merely being a continuation of the industrial action that commenced on the first day), the appellants’ case ultimately depends on nuanced criticism of the detail in the primary judge’s findings, rather than upon the required overall reading of his Honour’s reasons, including intermediate findings that are supportive of the ultimate conclusions his Honour reached. The onus lay on the appellants to show that his Honour did not make intermediate findings of fact that were sufficient to support the conclusions reached, in such a way as to constitute error. That onus was not discharged. The substance of his Honour’s findings overall was that:
(1) a significant number of site employees attended the meeting on the second day that commenced before the fixed work start time of 7.00 am; and
(2) following, and as a consequence of, that meeting:
(a) a number of those site employees did not work at all, although some attended to collect tools; and
(b) a number attended work late (albeit that there was some lack of precision as to how many, (with the evidence referred to at [171] above suggesting this to be some 20% of those employees who attended the meeting).
176 The primary judge’s conclusion that the above conduct constituted a contravention of s 417, in the context of a clear understanding being expressed by his Honour as to what that provision required, leaves no reasonable basis to doubt that the necessary causal connection between what was said at the meeting, as set out in considerable detail in his Honour’s reasons, and the decision of those site employees not to attend work, or to do so late, was found by his Honour. Ground 1 must therefore fail.
177 As to ground 1A, the appellants’ submissions make it clear that, even taken at its highest, this ground depends on the complaint raised by ground 1 being made good. The substance of this ground is that, without a finding that industrial action was taken on the second day, the meeting on that day did not itself give rise to unlawful conduct, being the aspect of unlawful, illegitimate or unconscionable conduct that was relied upon by the Commissioner to meet this element of ss 348 and 355. The appellants’ submissions on this ground acknowledge that the primary judge made findings as to intent to coerce based upon unlawful conduct arising from the meeting on the second day in respect of Messrs Parker, Kera, Collier and Reeves, which, in turn, were manifested in corresponding declarations. The sole basis for ground 1A therefore falls away with the failure of ground 1. In those circumstances, it is not necessary to resolve the conflict arising from the Commissioner’s alternative defence of this ground and the appellants’ response. The Commissioner’s alternative defence is that:
(1) industrial action did not have to take place on the second day for there to have been unlawful, illegitimate or unconscionable conduct, because ss 348 and 355 do not, in terms, require that industrial action must take place;
(2) it was enough if the conduct was unconscionable, even if it was lawful conduct, because it was nonetheless illegitimate, in the sense of it being disproportionate by reason of there being no reasonable or justifiable connection between the pressure being applied and the demand which that pressure supported, relying upon the reasoning in Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2017] FCA 157; 267 IR 130 (Carrara Sports) at [149]-[154]; and
(3) the conduct of Messrs Parker, Kera, Collier and Reeves was, in any event, unlawful, illegitimate or unconscionable because it was in defiance of the s 418 orders of the Fair Work Commission, which required them to advise the site employees of the effect of those orders (namely, the obligation to cease industrial action), which was not the substance of what took place.
Had this been necessary to resolve, it is noted that the Commissioner had the better argument.
Appeal ground 2 (on liability) – asserted error in taking into account conduct on the second day, 25 July 2014, in making findings as to industrial action on the first day, 24 July 2014
178 Ground 2 of the amended notice of appeal states:
The primary judge erred in finding that a number of the respondents organised industrial action at the meeting of the 24th of July impermissibly based in part upon the conduct of those respondents at a meeting on the 25th of July.
179 The particulars, which relate to Messrs Reeves, Darren Greenfield, Sloane, Taylor and Auimatagi, are said to involve findings that each organised industrial action on the first day (24 July 2014) by reference to knowledge that each of these individual respondents did not acquire until the second day (25 July 2014). As with ground 1, the particulars in support of this ground identify the paragraphs of the further amended statement of claim in which the contraventions alleged are set out, and the corresponding findings made by the primary judge against each of the five identified individual appellants and the Unions, by which his Honour is said to have erred:
Appellant | Pleaded contravention reference | Contravention finding |
Mr Reeves | [70] and [128] | [448] |
Mr Darren Greenfield | [97] and [140] | [494] to [495] |
Mr Sloane | [103] and [143] | [502] to [504] |
Mr Taylor | [109] and [146] | [514] to [515] |
Mr Auimatagi | [115] and [149] | [523] to [525] |
180 The particulars of this ground in respect of Mr Reeves were not pressed. It was also acknowledged by the appellants that the primary judge’s findings against Mr Taylor at [357] of the liability judgment constituted greater involvement in the activities on the first day than did the findings against Messrs Darren Greenfield, Sloane and Auimatagi.
181 The substance of this ground is an assertion that the primary judge engaged in impermissible reasoning by relying on events that did not take place until the second day to ground a finding of organising industrial action on the first day. On the appellants’ argument, Messrs Darren Greenfield, Sloane and Auimatagi in particular were minor players, and did not speak at the meeting on the first day. In those circumstances, a finding as to their knowledge of and support for the proposed industrial action was a crucial part of the Commissioner’s case against them. The appellants rely upon the findings by his Honour concerning the first day, in comparison with those concerning the second day, as follows:
(1) Mr Taylor was found to have assembled twice in the vicinity of the Main Site Access on the first day, while on the second day he was found to have yelled out “[t]hey are trying to intimidate the workers” and that there are “dogs over there”. Thus, the appellants contend, on the face of the evidence, Mr Taylor was no more than a passive observer on the first day, and yet, as the primary judge found (at [116]), “[m]ore than being a “passive observer” is required” to find a contravention of s 417. The appellants contend that this shortcoming in the evidence was overcome by conflating the conduct on the two days.
(2) The primary judge made similar findings of contravention on the first day by reference to conduct on both days in relation to Mr Darren Greenfield (at [494]-[495]), Mr Sloane (at [502]-[503]) and Mr Auimatagi (at [523]-[524]).
(3) The appellants argue that what was said or done on the second day did not point in any compelling way to what was said or done on the first day, and that his Honour was therefore not entitled to rely upon what was said or done on the second day to “fill in an evidentiary gap as to the events” on the first day by reference to the events of the second day.
(4) It is contended that if his Honour did not reason in this way, then there is an absence of reasoning as to how his Honour made findings as to the first day.
182 The Commissioner responds first by pointing to the structure of the primary judge’s reasons in his Honour’s liability judgment (as canvassed at some length above). In particular, he points to the way in which his Honour provided, from the evidence, a narrative for the two days while keeping in mind the different stages of what took place. In particular, the first day had distinct, although not entirely separate, phases: the Blocking Action, in which employees were directed to attend the Stop Work Meeting; the Stop Work Meeting itself (at which the Stop Work Resolution was passed); and the Enforcement Action, which concerned employees reassembling outside the main site access to give effect to the resolution by discouraging site employees from attending work, with considerable success. With that in mind, the Commissioner characterises his Honour’s reasons differently and casts them in a substantially more beneficial light.
183 In the case of Mr Taylor, the Commissioner points to the primary judge’s finding that he participated in both the Blocking Action and the Enforcement Action on either side of the Stop Work Meeting. The conduct described by his Honour placed Mr Taylor:
(1) at the site during the Blocking Action;
(2) at the Stop Work Meeting and thus having heard what was said (especially by Mr Parker); and
(3) being among those presenting themselves in a “physical demonstration of strength by the CFMEU outside the main site access”.
A similar approach was taken to summarising the conduct and role of Messrs Darren Greenfield, Sloane and Auimatagi.
184 An examination of the paragraphs of the liability judgment relied upon by the Commissioner reveals that the primary judge found, in substance and effect, that Mr Taylor’s presence was intimidating, not passive and that he was not a mere minor player. Rather, his conduct was found to have taken place in the knowledge of the resolution to be discussed and enforced. Doubtless, more could have been said by his Honour in a much longer version of an already very lengthy and detailed set of reasons, but this is an example of the impossibility, and, indeed, unreasonableness, of expecting a trial judge to labour on describing each nuance and detail. Properly considered, there was no improper reliance by his Honour upon the conduct on the second day to buttress what happened on the first day, and more than sufficient evidence was identified to support the conclusion reached.
185 A similar approach is required to be taken in considering the primary judge’s reasons in relation to each of Messrs Darren Greenfield, Sloane and Auimatagi. A similar approach is also required to be taken in considering their own evidence, insofar as that evidence contained admissions that were open for his Honour to take into account, without laboriously reproducing them to make intermediate findings on factual matters that were not in dispute. For example, as the Commissioner points out, Messrs Sloane and Darren Greenfield admitted in their affidavits that they were directing workers to attend the Stop Work Meeting, and that they attended the Stop Work Meeting themselves. The liability judgment reveals that the real contest was in characterising certain key aspects of what was said and done, rather than the general burden of what occurred overall. The Commissioner describes evidence, which is not disputed, of a CFMEU video of Mr Sloane walking up Hickson Road and crossing to stand at the back of the crowd at the meeting, listening to the speakers. The primary judge found that Mr Sloane was part of a group that included Messrs Parker and Kera, who walked up to workers after the Stop Work Meeting to inform them that it was too late to act contrary to the Stop Work Resolution. In substance, the workers were being told that they were bound by the resolution that was passed at the Stop Work Meeting, by which process industrial action was thereby organised and enforced. Similarly, Mr Auimatagi admitted in his affidavit that he was part of a group that assembled after the Stop Work Meeting and engaged in the Enforcement Action, albeit that he was equivocal about going across the road with Messrs Sloane, Parker and Kera.
186 In those circumstances, the Commissioner has a sound basis for his submission that there was sufficient evidence and related findings that each of Messrs Taylor, Darren Greenfield, Sloane and Auimatagi were engaged in organising the industrial action, and thus that there was no error in the primary judge making that finding based on the totality of the evidence in its overall context. His Honour was entitled to have regard to all of the available evidence, which, viewed in that way, was sufficient to demonstrate that industrial action was organised on the first day (24 July 2014), and involved Messrs Taylor, Darren Greenfield, Sloane and Auimatagi doing more than merely observing or being minor players. This included their involvement in collective action to encourage site employee attendance at the Stop Work Meeting, being a part of an intimidating physical presence at that meeting, and carrying that conduct over to the Enforcement Action to ensure that the Stop Work Resolution was complied with. It is not to the point that they were not vocal at the meeting, as the appellants contend. That was not their apparent role.
187 Once the totality of the primary judge’s findings is properly comprehended, it is a misreading of his Honour’s reasons to treat the references to what took place on the second day as being relied upon in some way to reinforce the conclusions as to what took place on the first day, and to fill in gaps or shortcomings in the evidence. His Honour was acutely aware of when the evidence was sufficient for the issue at hand and when it was not, including in relation to the events of the first day taken alone. For example, when it came to the ss 348 and 355 contraventions alleged against all of the individual appellants arising out of the same body of evidence, the primary judge was sufficiently aware of material differences to find those allegations established in relation to Messrs Parker, Kera, Reeves and Collier, but not against Messrs Michael or Darren Greenfield, Sloane, Taylor or Auimatagi. This bespeaks a careful and thorough approach to the strengths and weaknesses of the evidence, even if not every item of evidence was referred to, nor every possible intermediate finding of fact recorded.
188 These grounds of appeal have not been made out and must therefore be dismissed.
Appeal ground 3 (on liability) – asserted error failing to make findings that are necessary to conclude that Mr Sloane (and through him, the Unions) had organised industrial action on the first day (24 July 2014), contrary to s 417 of the Act
Notice of contention ground 1 (related to appeal ground 3) – sufficiency of evidence of Mr Sloane’s involvement to support a finding that he contravened s 417
189 Ground 3 of the amended notice of appeal on this ground states:
The primary judge erred at [502]-[504] in finding that Sloane organised industrial action on the 24th of July while making no finding that he did marshal or rally workers to engage in industrial action on the day. The contraventions alleged were set out at [103] and [143] of the FASOC. The appellants to whom this ground relates are Sloane, the CFMEU and the CFMEU NSW.
190 Ground 1 of the Commissioner’s amended notice of contention states:
The primary judge’s finding at paragraphs [502]-[504] of the judgment of 24 May 2017 that the Eighth Respondent, Sloane, contravened section 417 of the Fair Work Act 2009 (Cth) should be affirmed on the ground that there was sufficient evidence of Sloane's involvement in the organisation of the Stop Work Meeting and the subsequent Enforcement Action on 24 July 2014 to warrant a finding that he marshalled or rallied the Site Employees as part of his organisation of their industrial action on that day.
191 This ground of appeal and ground of contention concern the adequacy of the factual findings against Mr Sloane necessary to conclude that he organised industrial action on the first day (24 July 2014). This covers much the same territory as ground 2, but focusses specifically on the findings made against Mr Sloane. The appellants contend that the primary judge’s findings did not rise any higher than him being a passive observer, whereas, at a minimum, there needed to be a finding that he at least marshalled or rallied workers, citing Robinson at [53]. It is said in the appellants’ written submissions that his Honour, by finding that Mr Sloane organised industrial action by being part of the CFMEU group congregating outside the main site access point on the first day (24 July 2014) and attending the meeting, did no more than conclude that he was a passive observer, and thereby erred in finding a contravention of s 417.
192 The Commissioner relies upon his submissions in relation to ground 2 and, additionally, in relation to ground 1 of his amended notice of contention points to additional evidence supporting the conclusion of Mr Sloane having organised industrial action. He relies upon the additional evidence adverted to above as to Mr Sloane’s participation in the collective action directed to achieving site employee attendance at the meeting, Mr Sloane being a part of an intimidating physical presence at that meeting, and that conduct carrying over to the Enforcement Action to ensure compliance with the Stop Work Resolution.
193 Ground 3 amounts to no more than taking a particular paragraph from the liability judgment ([502]) in isolation, rather than in its overall context. It is true that the first part of [502], which concludes that Mr Sloane organised industrial action by being a part of the CFMEU group congregating outside the main access point on the first day (24 July 2014), could be read to indicate nothing beyond passive involvement on the part of Mr Sloane on the first day. However, that is not the correct way in which to read that paragraph of his Honour’s reasons. For example, as noted at [185] above, the primary judge (at [181]) found that Mr Sloane was part of a group that walked up to workers after the Stop Work Meeting to inform them it was too late to act contrary to the Stop Work Resolution, thereby organising industrial action by enforcing that it take place. That conduct alone goes well beyond mere passivity. As the Commissioner submits in relation to ground 1 of the notice of contention, his Honour is to be taken to be referring to such evidence at [502], even if there was only a shorthand reference at that point to the group congregating outside the main site access point and attending the meeting. That is not least because the chapeau to [502] makes express reference to [103] of the further amended statement of claim, which, in turn, cross-references the pleading of the Blocking Action (at [39]), the pleading of the Stop Work Meeting and Stop Work Resolution (at [40]-[41]), and the pleading of the Enforcement Action (at [44], [45] and [46A]). His Honour was referring to much more than passive activity.
194 The asserted error on the part of the primary judge has not been made out. This ground of appeal must fail.
Appeal grounds 4, 5 and 6 and notice of contention ground 2, relating to appeal ground 5 on intent to coerce
Appeal ground 4 (on liability) – asserted error in finding that Messrs Parker, Kera, Reeves and Collier (and through them, the Unions) had intended to coerce the site employees on either day, being a finding required by s 348
Appeal ground 5 (on liability) – asserted error in finding that Messrs Kera and Reeves (and through them, the Unions) had intended to coerce Lend Lease Building on either day, being a finding required by s 348
Notice of contention ground 2 (related to appeal ground 5) – sufficiency of evidence to support a finding on an alternative basis that Messrs Kera and Reeves intended to coerce for the purposes of ss 348 and 355
Appeal ground 6 (on liability) – asserted error in finding that Mr Reeves had intended to intimidate Lend Lease Building via Mr Cleary on the evidence that was accepted by the primary judge
195 Ground 4 of the amended notice of appeal states:
The primary judge erred in finding that Parker, Kera, Reeves, Collier and therefore the CFMEU and CFMEU NSW had intended to coerce the Site Employees as required by s 348 when the evidence at its highest only showed that they had intended to influence or to persuade or induce the Site Employees to take industrial action on the 24th of July and/or 25th July.
196 The particulars to this ground of appeal identify the following pleaded contraventions and contravention findings (omitting those referring to Messrs Parker and Collier that are not pressed):
Appellant | Pleaded contravention reference | Contravention finding |
Mr Kera | [61] and [125] | [436] |
Mr Reeves | [67B] and [128] | [446] |
197 Ground 5 of the amended notice of appeal states:
The primary judge erred in finding that Parker, Kera, Reeves, Collier and therefore the CFMEU and CFMEU NSW had intended to coerce Lend Lease in finding that they had intended to negate the choice of Lend Lease. The primary judge should have found that they simply intended to exert pressure upon Lend Lease, which was all that was established on the evidence. On the evidence at its highest, those persons had only intended to influence or to persuade or induce Lend Lease to reinstate Genovese.
198 The particulars to this ground of appeal identify the following pleaded contraventions and contravention findings (omitting those referring to Messrs Parker and Collier that are not pressed):
Appellant | Pleaded contravention reference | Contravention finding |
Mr Kera | [63] and [125] | [437] to [439] |
Mr Reeves | [69] and [128] | [447] |
199 Ground 2 of the Commissioner’s notice of contention states:
The primary judge’s findings at paragraphs [403]-[413], [414]-[422], [436], [437]-[439], [446]-[447], [477]-[482] and [483]-[484] of the 4 May 2017 judgment that the First, Second, Third and Sixth Respondents intended to coerce the Site Employees and Lend Lease on 24 July 2014 should be affirmed on the ground that the available presumption as to intent required by section 361 applied and the evidence of the relevant respondents concerning their intent did not and could not rebut that presumption.
200 Ground 6 of the amended notice of appeal states:
The primary judge further erred in finding that Reeves intended to intimidate Cleary at [287] in circumstances where the evidence was insufficient to establish intimidation. Cleary accepted at Transcript page 134 line 34-42 that Reeves displayed no malice and that Cleary did not take it seriously. That version was accepted by the primary judge. The finding led to the finding at [446] as to contravention of s.348, and to the finding at [447] as to contravention of s.355. The contraventions alleged were set out at [67B], [69] and [128] of the FASOC. The appellants to whom this ground relates are Reeves, the CFMEU and the CFMEU NSW.
201 These three grounds of appeal and this ground of contention are concerned with organising or taking, or threatening to organise or take, action with:
(1) “intent to coerce” the site employees to engage in industrial activity on both days, as proscribed by s 348 of the Act: ground 4; and
(2) “intent to coerce” Lend Lease Building to reinstate Mr Genovese, as proscribed by s 355(a) of the Act: grounds 5 and 6.
202 It is not in doubt that the word “coerce” in this context means to negate choice, as the quote at [203] below from Australian Building and Construction Commissioner v Hall [2018] FCAFC 83; 277 IR 75 makes clear. As the primary judge recognised at [96], “coerce” entails a high degree of compulsion being brought to bear, and not merely an intent to influence, persuade or induce. It is essentially a practical matter as to whether the pressure brought to bear leaves the person to whom it is directed with a realistic choice as to whether or not to comply. It is a quintessential fact-finding exercise based on an assessment of all of the evidence.
203 To complicate things further, there is a question of whether the case below was pleaded with sufficient clarity to engage the reversal of onus provision in s 361 of the Act, if that was, in fact, relied upon by the primary judge, or whether this was otherwise sufficiently plain to the appellants, following the Full Court decision in Hall, which was handed down on the first of the two appeal hearing days, in which it was said (at [25]-[26]):
It is well-established that the expression “intent to coerce” in ss 343 and 355 carries within it a requirement to establish two discrete elements: the negation of choice; and the use of unlawful, illegitimate or unconscionable conduct to do so (see Esso Australia Pty Ltd v Australian Workers’ Union (2016) 245 FCR 39; 258 IR 396 at [174] (Buchanan J, with whom Siopis J agreed at [1]). We interpose that this conclusion and the line of authorities relied upon to reach it do not appear to have been affected by the recent High Court judgment on appeal from that judgment (see Esso Australia Pty Ltd v Australian Workers’ Union (2017) 92 ALJR 106; 271 IR 210 at [61] (Kiefel CJ, Keane, Nettle and Edelman JJ).
Furthermore, and most importantly for present purposes, the Full Court also held in Esso that the intent aspect of the expression “intent to coerce” applies to the negation of choice element. This contrasts with the other element, the use of unlawful, illegitimate or unconscionable conduct, which is to be assessed objectively (see Esso at [194]). It follows that the relevant particular intent for the purposes of a contravention of ss 343 and 355 is an intent to negate choice. It follows further that, for the presumption in s 361 to operate with respect to a contravention of those sections, the particular intent that must be alleged in the application is an intent to negate choice. Conversely, alleging that the particular intent was an “intent to coerce” creates ambiguity because that expression does not refer to an intent per se, but rather, as discussed above, refers to the two elements of coercion, only one of which relates to the alleged contravener’s intent.
204 As to ground 4, the complaint made in the ground of appeal as pleaded and/or in submissions at the hearing of the appeal is that, before placing any reliance upon the reversal of onus provision in s 361, the primary judge first had to find that the objective elements of unlawful, illegitimate or unconscionable conduct were proven, and that the allegation of coercion was raised, before turning to the question of intent to coerce. The appellants submit that his Honour then had to make clear that s 361 was relied upon, but that his Honour did not expressly refer to that provision, and that the denials by Messrs Kera and Reeves of having the requisite intent to coerce on the first day had to be rejected before the finding could be made, but that that rejection did not take place. This, on the appellants’ argument, is to be contrasted with the findings made in relation to Messrs Parker and Collier, which were sufficiently explicit.
205 Thus, the appellants argue, his Honour erred by failing to address the legal requirements for finding a contravention of s 348. The appellants contend that the same error was made in respect of the events of the second day (25 July 2014) as they concerned Messrs Kera and Reeves. Ground 5 relies, in substance, upon the same category of asserted error as ground 4, because, again, it is said that the denials of an intention to coerce Lend Lease Building were not rejected before reliance was placed on s 361. Ground 1A is again raised by the appellants in the context of both grounds 4 and 5, but that ground has already been addressed above.
206 The Commissioner submits in response that the primary judge recorded at [96] that intent to coerce required having an intention to negate choice, and that the necessary findings in that regard had been made against both Mr Kera and Mr Reeves. The Commissioner relies upon the primary judge’s findings concerning Mr Kera (with numerous references to the evidence of witnesses called by the Commissioner having been accepted over that of Mr Kera’s contrary evidence), with particular reliance upon the following key, but not exhaustive, features:
(1) that Mr Kera participated in the Enforcement Action and actively sought to instruct workers that the site was shut due to the vote that had taken place at the Stop Work Meeting on the first day;
(2) that Mr Kera had participated in the earlier meetings with Lend Lease Building about Mr Genovese’s suspension from work and had demanded that Lend Lease cease its investigation into Mr Genovese’s conduct;
(3) that Mr Kera accepted that he would do all he could to have the CFMEU support Mr Genovese, a fact that was relevant to his intent to coerce;
(4) that the Enforcement Action was intended to intimidate the site employees into complying with the Stop Work Resolution;
(5) that Mr Kera spoke to the Stop Work Meeting, demanding that Mr Genovese be reinstated, and with the intent of stirring up the employees to take industrial action; and
(6) that Mr Kera’s conduct took place as an aid to the speeches made by Mr Parker and Mr Reeves to the Stop Work Meeting, a context of which the primary judge was well aware.
207 The Commissioner submits that the primary judge understood that the case being put was that the means by which the choice of the site employees was intended to be negated was by the combination of the Stop Work Resolution being passed and it being enforced, this taking place after the Blocking Action.
208 There appears to be some force in the appellants’ contention that the primary judge did not make express reference to s 361. However, as the Commissioner points out, in light of the findings made, there was no need for his Honour to rely upon that reversal of onus provision. That submission is borne out by careful attention to his Honour’s reasons, particularly at [430]-[441]. There were ample express findings, including both acceptance and rejection of aspects of Mr Kera’s own evidence, to support the conclusions reached that the contraventions by Mr Kera on the first day (24 July 2014) had been made out. Mr Kera made only bare denials. In those circumstances, his Honour did not need to go any further. This then flowed over to the findings made about Mr Kera in relation to the second day (25 July 2014).
209 The Commissioner points to similar findings being made against Mr Reeves. His Honour found that:
(1) Mr Reeves demanded at the Stop Work Meeting on the first day that Mr Genovese be reinstated;
(2) Mr Reeves conspicuously voted for the Stop Work Resolution on the first day, and associated himself with the conduct of Messrs Parker and Kera at that meeting – the suggestion in cross-examination that he had merely raised his hand in a gesture of pleasure at the resolution passing and had not himself voted was rejected by his Honour in the face of photographs that were in evidence;
(3) Mr Reeves participated in the Enforcement Action – in evidence were photographs which included him standing with CFMEU organisers outside the main site access after the Stop Work Meeting;
(4) On the second day, Mr Reeves was found to have approached the Lend Lease Building employees who had gathered outside the main site access point to give support to site employees who wished to return to work and made threatening statements to them, which he sought to be played down as banter, such as “I hope you guys have had security training, because if you haven’t, you might get hurt today” – the characterisation as banter was expressly rejected; and
(5) Mr Reeves addressed the meeting on the second day, calling the Inspectors “dogs”, and made numerous calls to those at the meeting to think about how they had voted the previous day, to “make a decision like yesterday” and that “you need to stand up to them”.
210 The primary judge found that Mr Reeves was more confined in his conduct than Mr Parker or Mr Kera, but that his involvement was greater than some of the remaining individual appellants. The Commissioner submits that even these selective examples of the findings made against Mr Reeves contributed to the overall finding that, on both days, Mr Reeves contravened ss 348 and 355, without the need to resort to s 361. In those circumstances, the Commissioner submits that any mere denial of intention to coerce must have been rejected by his Honour.
211 When the primary judge’s reasons are considered in some detail, and with a sense of their overall structure, the Commissioner’s submissions should be accepted. It is not helpful to read his Honour’s conclusions in isolation in the manner urged by the appellants. It is tolerably clear that the Commissioner succeeded in establishing a positive case against both Mr Kera and Mr Reeves and had no need to resort to the reversal of onus provision in s 361 to establish the conduct.
212 Ground 6 concerns a finding that Mr Reeves intended to coerce Lend Lease Building via the intimidation of its employee, Mr Cleary. The appellants contend that this was contrary to Mr Cleary’s evidence that he did not regard Mr Reeves’ words as having any malice, and that he did not take them seriously. The appellants argue that this deprived the primary judge of any proper evidentiary foundation for the conclusion (at [287]) that the words uttered were “intended to convey their natural and ordinary meaning; the words were said with an intent to intimidate”.
213 The Commissioner submits that the approach of the primary judge needs to be understood in the context of what had been said. The primary judge recorded the evidence that Mr Reeves approached Lend Lease Building employees standing outside the main site access point on the second day and said “I hope you guys have had security training, because if you haven’t, you might get hurt today”. Mr Reeves also said to Lend Lease Building employees at the time that “I hope you’re being well paid”. These comments were not addressed only to Mr Cleary, but also to other employees, such that Mr Cleary’s ability to shrug them off was not a complete answer to the question of intimidation, nor to the relevant element of intent to coerce by intimidation. His Honour recorded that Mr Baker, another Lend Lease Building employee, agreed that Mr Reeves did not speak with a “threatening gesture”. However, there was no such evidence from the other Lend Lease employees. The Commissioner submits that while the evidence may be insufficient to prove actual intimidation of Mr Cleary, the primary judge’s finding at [287] was nonetheless that Mr Reeves intended to intimidate the Lend Lease employees.
214 Moreover, the Commissioner points out that the statements by Mr Reeves were provoked by Lend Lease Building employees assembling in some numbers outside the main site access point and making statements to encourage the site employees to return to work, to which several CFMEU representatives responded with intimidating statements and behaviour, including abusive language.
215 In the context of the above evidence expressly referred to by the primary judge, the Commissioner submits that his Honour’s conclusion was not implausible and was reasonably open on the evidence so as not to constitute error. The Commissioner submits that while the comments made by Mr Reeves on the second day (25 July 2014) in relation to what had happened on the first day (24 July 2014) may well have contributed to the overall finding against him that he had an intent to coerce on the first day, those comments were in the context of substantial evidence as to events on the first day, and did not, in any event, receive undue emphasis. It may be observed that comments made after an event by a participant may well contribute to the view taken of the speaker’s role, participation or state of mind, insofar as they reflect the speaker’s state of mind at the earlier point in time.
216 The Commissioner’s submissions amply meet and address ground 6. Again, viewed in context, the primary judge did not err in his Honour’s assessment of the evidence.
217 The foregoing is sufficient to dispose of grounds 4, 5 and 6. Those grounds must fail.
218 As to the Hall point, the appellants contend that because the particular intent to negate choice was not pleaded at each point where that was required, s 361 was not engaged. The Commissioner responds in several ways. First, he contends that Hall was incorrectly decided. Secondly, he contends that, even if Hall was not incorrectly decided, the failure to strictly comply with the pleading principle described in that case does not have the same impact in this case. That is because there was no unilateral broadening of this case in opening or closing submissions, and no suggestion was made at trial that the pleading was insufficient to raise the s 361 presumption, even if it had been relied upon.
219 Alternatively, the Commissioner submits that if there was a pleading deficiency, it was purely formal. He submits that the case on appeal on these grounds could properly be determined by reference to the evidence if that was necessary, as part of the process of ascertaining whether there was error in the outcome. He submits that, even if the pleadings were deficient in a way that was material and therefore required formal rectification, it was in the interests of justice overall to permit an amendment, as that would not entail the Commissioner advancing a case on appeal that was materially different from the case at trial. Finally, the Commissioner contends that the grounds of appeal in question turn upon sufficiency of evidence, rather than sufficiency of pleadings, and that the appellants should not be permitted to run a pleading point now that is not properly raised by any of the grounds of appeal. There is some considerable force in those submissions, because no issue as to pleadings was taken in any of the submissions for the appellants prior to Hall being decided; whereas Hall was a case in which the pleading issue was squarely raised.
220 Overall, the question of any defect in pleading does not need to be taken any further in relation to grounds 4, 5 and 6, because it is reasonably evident that s 361 was not relied upon by the primary judge in relation to the findings that are the subject of appeal. In any event, this was a very different case from Hall, with the detail in the pleadings in this case clearly enough revealing what was being relied upon to establish intention to negate choice.
221 Any formal defect in the pleadings was not operative in the circumstances of this case. Even if the pleading was inadequate, and even if s 361 was nonetheless relied upon by the primary judge, his Honour said (as part of [408]) that:
Written submissions advanced on behalf of Mr Parker, and the other individual Respondents, contended that no finding of any intent to coerce the Site employees should be made. Emphasis was placed upon (inter alia) the necessity to prove an intent to negate choice rather than a mere intent to influence the Site employees: cf. National Tertiary Education Industry Union [2002] FCA 441 at [103], (2002) 117 FCR at 143 per Weinberg J. The written submission was that there was “little suggestion that the site employees were subject to the overbearing of their will”. …
222 It is therefore clear that the appellants were well aware of the bounds of the case that they had to meet on the issue of coercion and its proof, and conducted their case accordingly and in a way that denies the existence of any disadvantage from any purely formal shortcoming in the pleadings.
Appeal grounds 7 and 8 (on liability) – asserted error finding that the CFMEU (ground 7) and Mr Reeves (ground 8) contravened s 50 of the Act by failing to engage in the dispute resolution provision of the enterprise agreement, on the basis that his Honour failed to consider that this provision had not been invoked by anyone to whom it applied
223 It is convenient to deal with appeal grounds 7 and 8 together.
224 Ground 7 of the amended notice of appeal states:
The primary judge erred in finding at [537] that the CFMEU contravened s 50 of the FW Act by failing to engage in the dispute resolution provision at clause 19 of the enterprise agreement that applied. The contraventions alleged were set out at [123], [126], [135], [138], [141], [144], [147] and [150] of the FASOC. The primary judge did so by finding that the CFMEU had so acted through the actions of the individuals (other than Reeves and Genovese) who themselves had not engaged the dispute resolution provision. The primary judge did not consider the implications of the argument that he referred to at [528], and pleaded at paragraph 123 of the further amended defence of the CFMEU and the CFMEU NSW, that the dispute resolution provision had not been invoked by any person to whom the enterprise agreement applied, and was not mandatory. The appellant to whom this ground relates is the CFMEU.
225 Ground 8 of the amended notice of appeal states:
The primary judge erred in finding that Reeves contravened s 50 of the FW Act by failing to engage in the dispute resolution provision at clause 19 of the JDA. The contraventions alleged were set out at [73] and [129] of the FASOC. The primary judge did not consider the implications of the argument that he referred to at [528], and pleaded at paragraph 73 of Reeves’ further amended defence, that the dispute resolution provision had not been invoked by any person to whom the enterprise agreement applied, and was not mandatory. The appellants to whom this ground relates are Reeves and the CFMEU.
226 The primary judge found (at [537]):
Although it has been concluded that the series of allegations as against Messrs Parker, Kera, Michael Greenfield, Collier, Darren Greenfield, Sloane, Taylor and Auimatagi as to their having failed to initiate or engage in the dispute resolution clause as required by cl 19 of that Agreement and thereby breached cl 20 have each been rejected, it is nevertheless further concluded that:
• in engaging in the conduct that they each pursued, each was acting in their capacity as an officer, employee or agent of the CFMEU;
• the conduct thereby engaged in is to be taken for the purposes of the Fair Work Act to have been engaged in by the CFMEU; and
• the CFMEU thereby failed to engage the dispute resolution provision and breached cl 20 of the Agreement.
227 Thus only the CFMEU, and none of the individual appellants apart from Mr Reeves, was found to have contravened s 50 of the Act by failing to initiate or engage in the dispute resolution procedures provided within cl 19 of the Joint Development Agreement, reproduced at [23] above, thereby being in breach of cl 20 of that agreement.
228 The appellants’ case on these grounds is stated with deceptive simplicity. They assert that the primary judge overlooked a requirement in the Joint Development Agreement that a person cannot fail to follow the cl 19 dispute resolution provisions, and thus breach cl 20 and contravene s 50 of the Act, unless those provisions have been engaged by a person directly affected by the dispute. The appellants point to the mandatory process of initial discussions provided for by cl 19.1(a) in the event that a dispute arises (having abandoned a pleaded defence that the process is not mandatory). Thus, the appellants submit, cl 19 required discussions between those directly affected, namely the CFMEU, Lend Lease Building and Mr Genovese. The individual appellants (which do not include Mr Genovese) were not directly affected, such that there was no obligation cast upon them to discuss the matter in dispute, nor to escalate those discussions through the management structures on either side. Moreover, the appellants note that cl 19.1(c) makes it clear that referral to the Fair Work Commission is discretionary, with no obligation on any party to a dispute to make such a referral. None did so, with Lend Lease Building denying that the Fair Work Commission had jurisdiction. The appellants submit that without the requirement for a cl 19(a) discussion and without a cl 19(c) referral taking place, there could not be a breach of cl 20 by reason of failure to apply cl 19, citing Tomvald v Toll Transport Pty Ltd [2017] FCA 1208 at [280]-[282].
229 The Commissioner does not take issue with the second limb of the argument concerning referral, but focuses on the first limb as to the engagement of the mandatory discussion requirements in cl 19(a). His response comes down to the following propositions:
(1) the finding of the primary judge at [537], reproduced above at [226], expressly turned on the failure by the CFMEU to engage the dispute resolution process, thereby breaching cl 20;
(2) in this instance, the prohibition spoke directly to the CFMEU as the only relevant entity that was a party to the dispute involving Mr Genovese, but the CFMEU could only act, or fail to act, though human agents;
(3) Messrs Parker and Kera were senior officers of the CFMEU, with the evidence indicating that they took the lead in dealing with the dispute concerning Mr Genovese;
(4) Mr Reeves, as one of the site delegates for the CFMEU, as well as Messrs Taylor and Kera, were all involved in accompanying Mr Genovese to meetings with Lend Lease Building about the investigation into his conduct and his suspension;
(5) each of these individuals were the very people who had carriage of Mr Genovese’s dispute at the CFMEU;
(6) in particular, Mr Kera notified Lend Lease Building that the CFMEU disputed the warning given to Mr Genovese, with the CFMEU issuing a flyer (partially reproduced at [44] above) that was, on its face, authorised by Mr Parker, and stating its support for Mr Genovese in the dispute;
(7) the CFMEU had both the knowledge and the capacity to comply with the dispute resolution provisions;
(8) the appellant’s reliance on Tomvald is misplaced because there was no allegation of contravention of any equivalent of cl 19 in that case; and
(9) the CFMEU and Mr Reeves could not have been permitted to escape from their obligations to continue work by failing to comply with cl 19.1(a) and instead taking action that pre-empted such procedures taking place.
230 The Commissioner’s arguments should be accepted. Clause 19.1(a) plainly enough engaged the CFMEU as a party to the dispute in circumstances in which it, through its officers, had been involved in the dispute on behalf of Mr Genovese for some time, but without a successful outcome. Once involved in that way, the CFMEU could not ignore the effect of that engagement, disregard the dispute settlement provisions, and thereby disregard the clear and express obligation imposed by cl 20. The express terms of cl 20 bear repeating:
Work Continuity
Work shall continue without interruption or dislocation during discussion and resolution of disputes.
231 There was no error on the part of the primary judge. These grounds of appeal must therefore fail.
Cross-appeal grounds 1 and 2 – asserted error in striking out the accessorial pleadings on s 50 contraventions and in failing, as a result, to determine those asserted contraventions
232 The primary judge ultimately struck out paragraphs of accessorial pleadings on the primary basis that they lacked the necessary precision as to the manner in which one or the other of the individual appellants was said to be an accessory to the acts of the other individual appellants. The accessorial pleadings pertaining to the individual appellants and Mr Genovese that were struck out were as follows:
Each of the First to Tenth Respondents was involved in the contraventions of sections 348, 355 and 417 of the FW Act by the other of the First to Tenth Respondents, within the meaning of section 550 of the FW Act, in that each of them:
a. aided, abetted, counselled or procured the contraventions; or
b. induced the contraventions, whether by threats or promises or otherwise; or
c. by act or mission, directly or indirectly, been knowingly concerned in or party to the contraventions; or
d. conspired with the other Respondents to effect the contraventions.
Particulars
Each of the First to Tenth Respondents:
i. had knowledge of the conduct of the other of the First to Tenth Respondents as pleaded in paragraphs 52 to 116 above;
ii. attended the Stop Work Meeting;
iii. was aware of and supported the Stop Work Resolution and knew that its purpose was to cause the Site Employees to stop work during the term of the Lend Lease EBAs in order to place pressure on Lend Lease to reinstate Genovese as pleaded in paragraph 42 above; and
iv. each of the First to Tenth Respondents did not advise the other of the First to Tenth Respondents against taking the action they took nor did he dissociate himself from that action or its purpose but engaged in a common purpose with the other Respondents.
Each of the First to Tenth Respondents was involved in the contraventions of sections 50 and 417 of the FW Act by the Stop Work Employees, within the meaning of section 550 of the FW Act, in that each of them:
a. aided, abetted, counselled or procured the contraventions; or
b. induced the contraventions, whether by threats or promises or otherwise; or
c. by act or mission, directly or indirectly, been knowingly concerned in or party to the contraventions; or
d. conspired with the other Respondents to effect the contraventions.
Particulars
Each of the First to Tenth Respondents:
i. had knowledge of the conduct of the other of the First to Tenth Respondents as pleaded in paragraphs 52 to 116 above;
ii. attended the Stop Work Meeting;
iii. was aware of and supported the Stop Work Resolution and knew that its purpose was to cause the Site Employees to stop work during the term of the Lend Lease EBAs in order to place pressure on Lend Lease to reinstate Genovese as pleaded in paragraph 42 above; and
iv. each of the First to Tenth Respondents did not advise the other of the First to Tenth Respondents against taking the action they took nor did he dissociate himself from that action or its purpose but engaged in a common purpose with the other Respondents, and did not advise them or the CFMEU or the Site Employees to continue work and to engage the dispute resolution procedure under clause 19 of the JDA.
v. was aware of the matters concerning the suspension of Genovese referred to in paragraphs 35 and 36;
vi. was aware that the JDA required work to continue and disputes at the Site to be dealt with by participation of the CFMEU in a mandatory dispute resolution procedure;
By reason of the operation of section 550(1) of the FW Act each of the First to Tenth Respondents contravened sections 50, 348, 355 and 417 of the FW Act.
233 The primary judge’s reasoning for striking out those pleadings was as follows (at [36]-[42]):
As a starting point, the principle that a person against whom a “quasi-criminal” contravention is alleged “should know what case he or she has to meet” has long rested “upon a basic consideration of fairness”: cf. S v The Queen (1989) 168 CLR 266 at 285 per Gaudron and McHugh JJ. It is also to be accepted that a pleading that alleges that a person is an accessory to the contravention of a “civil penalty” provision by another person should separately allege:
• knowledge on the part of the accessory of each and every element of the contravention; and
• the identity of the other person who engaged in the contravening conduct.
Where the contravention is one involving an “intent” or “purpose”, it is also necessary to separately allege that the accessory:
• had knowledge of that “intent” or “purpose”.
It was not understood that any of these requirements was put in issue by Senior Counsel for the Commissioner. It was his position that paras [118] and [119] met those requirements and did not need any further amendment to address the concerns of the Respondents.
Concurrence cannot be expressed with the Commissioner’s position. Left un-pleaded is any precise identification of:
• which particular Respondent was said to be the person who engaged in the contravening conduct and, in respect to that conduct, which particular Respondent was said to be an accessory; and
• the material facts founding a pleading that contends that the person who was said to be an accessory had “knowledge of the other of the First to Tenth Respondents”.
More specifically, with respect to those allegations that one or other of the Respondents engaged in conduct with an “intent to coerce”, there is no precise allegation identifying:
• the factual basis for the allegation that that Respondent had knowledge of the “intent to coerce” or a factual allegation from which such knowledge could be inferred.
As a general proposition, it may be accepted that the Commissioner alleges that each of the individual Respondents was an accessory to any contravention of any of the remaining individual Respondents. And the Particulars provided in respect to para [118] seek to give colour to the more general allegation.
But, with respect, greater specificity than that is required.
With the benefit of hindsight, paras [118] and [119] should have been struck out earlier. But any earlier assessment of the merits of the Respondents’ strike out application should not prejudice its ultimate fate.
Even had a conclusion not been reached that these paragraphs should be belatedly struck out, it would nevertheless have been further concluded that the case of accessorial liability would not have prevailed. No sufficiently certain meaning could be given to the allegations as pleaded as against each of the individual Respondents. There was, for example, considerable uncertainty as to the factual basis upon which one particular Respondent was said to have knowledge of the “intent to coerce” being exercised by another Respondent. Separate from any question as to the form of the pleading, and separate from any question as to whether it would have been permissible to go beyond the pleadings as drafted in order to thereafter conduct a free-ranging search of the available evidence with a view to building a factual basis upon which findings of fact made against one Respondent in respect to (for example) that Respondent’s intent or knowledge could be attributed to another, the evidence of accessorial liability would not have satisfied the standard of proof required by Briginshaw v Briginshaw (1938) 60 CLR 336 (“Briginshaw”), or more accurately, the standard required by s 140 of the Evidence Act 1995 (Cth) (the “Evidence Act”).
234 The challenge on cross-appeal is confined to the striking out of the pleaded accessorial allegations only insofar as they related to the s 50 contraventions by Mr Reeves. This was a means by which the non-employee individual appellants could be fixed with accessorial liability for the Joint Development Agreement dispute resolution provisions not being complied with, direct liability having failed because those appellants were not parties to that enterprise agreement. Grounds 1 and 2 of the notice of cross-appeal state:
The primary judge erred in striking out paragraphs 118-120 of the Further Amended Statement of Claim at paragraphs [29]-[42] so far as they related to accessorial liability of the First, Second and Fifth to Tenth Respondents for the contravention of section 50 of the Fair Work Act 2009 (Cth) (FWA) by the Third Respondent (Reeves) found at paragraph [452].
At paragraph [128] the primary judge determined that in order to be an accessory to a contravention of section 50, all that was required was that an alleged accessory have knowledge of the relevant conduct, that is, in the present case, the taking of industrial action by the Site Employees on 24 and 25 July 2014. It was therefore an error for the primary judge to strike out paragraphs 118-120 as they stood as those paragraphs (as did paragraph 151) provided sufficient particulars to support the claim for accessorial liability for the section 50 contravention by Reeves. All of the First, Second and Fifth to Tenth Respondents were aware that the Site Employees took industrial action on 24 July 2014.
235 The grounds can be seen to pivot upon the primary judge’s later findings:
(1) on the requirement for accessorial liability to a s 50 contravention (at [128]):
… Where the contravention in question is a contravention of s 50, that section does not require the person contravening a term of an enterprise agreement to have any knowledge of the existence of an enterprise agreement and does not require knowledge of the term being contravened or the fact that the act of contravention is in fact contravening conduct. If the “elements” of s 50 do not encompass those matters, it is – with respect – difficult to see why an accessory need have any greater knowledge. For a person to contravene s 50, it is sufficient to prove that conduct took place which was in fact a contravention of a term of an enterprise agreement. For the purposes of accessorial liability, all that need be proved is that the accessory had knowledge of the conduct.
(2) as to the contravention of s 50 by Mr Reeves (at [451]-[452]):
Paragraph [73] is an allegation that seizes upon Mr Reeves’s status (inter alia) as an employee of Lend Lease Building. It is cross-referenced to that conduct pleaded at paras [50] and [51]. Paragraph [73] alleges a contravention of cls 19 and 20 of the Joint Development Agreement and a contravention of s 50 of the Fair Work Act. That allegation has been made out.
Paragraph [74] (as amended) alleges that by engaging in the conduct set forth in paras [50] and [51] Mr Reeves engaged in “industrial action in contravention of section 417 of the FW Act and a contravention of the terms of the JDA in contravention of section 50 of the FW Act”. Paragraphs [50] and [51] set forth the allegation as to the taking of “industrial action” by reason of (inter alia) “failing or refusing to attend work” and “passing the Stop Work Resolution”. Section 417 is directed to the taking of “industrial action”. Section 19 defines “industrial action” and confines its attention to the taking of action “by an employee”. The mere failure of an employee to attend work does not of itself constitute the taking of “industrial action”, the failure to attend not necessarily involving any “area of disputation and bargaining”: cf. Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2015] FCAFC 25 at [113] to [120], (2015) 230 FCR at 320 to 321 per Logan, Bromberg and Katzmann JJ. But the failure to attend work and the involvement in the meeting when the Stop Work Resolution was passed is “industrial action”. It was action taken in furtherance of Union activity: McCullough [2016] FCA 1291 at [130] to [131] per Barker J. The action taken by Mr Reeves was taken both in his capacity as an employee and as an official of the CFMEU. Notwithstanding his dual capacity, Mr Reeve’s conduct remained that of an employee who failed to comply with the terms of cls 19 and 20 of the Joint Development Agreement. And the action taken by Mr Reeves is a contravention of “a term of an enterprise agreement” and hence a contravention of s 50.
236 The substance of the Commissioner’s complaint in cross-appeal grounds 1 and 2 is thus that the primary judge failed to apply his Honour’s own findings in relation to accessorial liability for s 50, because on those findings there was sufficient particularisation set out in [119(i)-(vi)] of the further amended statement of claim. The Commissioner submits that all that was required by way of knowledge for accessorial liability for the individual appellants other than Messrs Genovese and Reeves was that each had knowledge that site employees had stopped work on the first day (24 July 2014).
237 It is convenient to address first the appellants’ second response. That response characterises the Commissioner’s submission of the very limited basis upon which accessorial liability could be established as erroneously equating accessorial liability to bare knowledge of a contravention, contrary to the history of the provision upon which s 550 of the Act is based, being s 75B of the Trade Practices Act 1974 (Cth). Section 75B was considered in Yorke v Lucas (1985) 158 CLR 661, in which the High Court made it clear (at 670) that intentional participation had to be established to be involved as an accessory, rather than mere knowledge. However, that submission does not do justice to what the Commissioner was submitting, which was confined to the topic of the knowledge that was necessary for accessorial liability, and was not erroneous when confined in that way. This response by the appellant therefore cannot be accepted.
238 The appellants’ first response is to revert to the language in the pleading. They essentially assert ambiguity because [119] of the pleading, reproduced in full above at [232], can be read as asserting accessorial liability:
(1) by a finding that all of the appellants knew of the contravention by all of the others;
(2) by a finding that that all of the officials were accessories to the actions of one or more of the other officials; or
(3) by a finding that one or more of the officials were accessories to one or more other officials,
such that the appellants were faced with many possible permutations, which could not be meaningfully pleaded or disproved, which was unfair and duplicitous (to the limited extent that the criminal law concept of duplicity has work to do in a civil penalty context). The Commissioner replies that the pleading was sufficiently clear in alleging, and thus requiring proof, as to knowledge of the essential elements of the contravention by the site employees who did not attend work on the first day.
239 The difficulty for the Commissioner is that his submission relies on the particulars to the pleading to clarify the substantive pleading. They do this to some extent, but not entirely. The decision to strike out a pleading is ordinarily (and was in this case) discretionary, calling for the application of judgement in the context of the totality of the case. In such a situation, there may not be a single correct answer. It is more nuanced than that. In this instance, the primary judge had initially rejected the strike out application, but left it open to be re-agitated, which it was in closing submissions. It is not to the point that a different stance could have been taken with the benefit of all of the evidence and the submissions. His Honour was entitled to form a view as to whether the allegation was sufficiently clearly pleaded so as to meet the procedural fairness requirements of a pleading, especially in a civil penalty case (see Hall at [49]-[50]). The pleaded allegations, while perhaps not entirely deficient, were not a model of clarity and were at least capable of several interpretations. His Honour was entitled to find that they fell short of what was required. Cross-appeal ground 1 must therefore fail.
240 In these circumstances, cross-appeal ground 2 has a bootstrap quality to it, to the effect that an inadequate pleading that can possibly be cured by evidence and pleadings must inevitably be permitted to be cured in that way. Doubtless, his Honour could have been of that view, but he was not required to arrive at that conclusion. His Honour was entitled to reach the conclusion that he did, and the argument advanced in support of cross-appeal ground 2 does not, at least in this case, provide a sufficient answer. Cross-appeal ground 2 must therefore also fail.
Cross-appeal ground 3 – asserted failure to address and determine the claim of accessorial liability at [151] of the further amended statement of claim
241 Ground 3 of the cross-appeal states:
The primary judge also erred in failing to address and determine the claim for accessorial liability pleaded in paragraph 151 of the Further Amended Statement of Claim.
242 This ground of cross-appeal has some relationship to the prior two cross-appeal grounds but is nonetheless separate. The Commissioner contends that the primary judge failed to determine the accessorial case pleaded at [151] of the further amended statement of claim. It seems clear enough that this claim was not expressly addressed. The appellants do not contend otherwise, noting that the blanks in the table of penalties imposed at [8] of the penalty judgment indicates that no finding of contravention was made.
243 The Commissioner points to the liability findings at [537] of his Honour’s reasons that the CFMEU had contravened s 50 – arising, respectively, from the conduct of Messrs Parker, Kera, Michael Greenfield, Collier, Darren Greenfield, Sloane, Taylor and Auimatagi in not complying with the Joint Development Agreement – and as part of [540] in the context of [452], to the effect that the CFMEU contravened s 50, arising from the conduct of Mr Reeves. Without being aware of those dual findings as the means of finding that the CFMEU contravened s 50, the penalties imposed, set out in the table at [151] above, tends to suggest that the maximum penalty imposed upon the CFMEU was in respect of only the conduct of Mr Reeves, when in fact it was apparently in respect of the conduct of all nine individual appellants. The Commissioner submits that the primary judge should have determined the pleaded allegation that each of Messrs Parker, Kera, Michael Greenfield, Collier, Darren Greenfield, Sloane, Taylor and Auimatagi was additionally liable as an accessory under s 550 for being involved in the contravention of s 50 by the CFMEU, arising out of their own conduct.
244 The appellants’ response is to point to longstanding authority of the High Court in Mallan v Lee (1949) 80 CLR 198 at 216 in a criminal law context, to the effect that a person cannot be an accessory to his or her own act. Mallan v Lee was applied by French J, when his Honour was a member of this Court, in the trade practices case of Wright v Wheeler Grace & Pierucci Pty Ltd [1988] FCA 199; [1988] ATPR 40-865 at 49,376-7. There is an immediate problem with the appellants’ reliance on this decision: the finding on liability was overturned on appeal in Wheeler Grace & Pierucci Pty Ltd v Wright [1989] FCA 162; 16 IPR 189. The Full Court explicitly drew the distinction that was relied upon by the Commissioner, saying (at 31-37):
… His Honour considered such conduct could not be accessorial conduct with which s.75b of the Act was concerned. It was his Honour's view that separate and distinct conduct on the part of Collins was required before s.75B of the [Trade Practices] Act could apply and impose liability on Collins as a person involved in the contravention of the Act by the appellant.
Of course his Honour did not have the benefit of the recent statement of the High Court in Hamilton v. Whitehead [1989] 63 A.L.J.R. 80 delivered on 7 December 1988.
…
In Hamilton v. Whitehead it was pointed out that the relevant provisions of the Trade Practices Act 1974 were like provisions to s.169 of the Companies (Western Australia) Code, but unlike the provisions of s. 230 of the Income Tax Assessment Act 1936 as considered in Mallan v. Lee in that a direct liability was imposed on the company for acts done by persons who embodied the company. There was no imposition of vicarious liability upon the company for actions of servants or agents of that company.
…
Accordingly, it must follow that the appellant was directly liable for its acts through Collins for any contravention of s.52 and that Collins was a person on whom s.75b of the Act could impose accessorial liability.
245 The Commissioner’s reply, while not referring to the Full Court decision in Wheeler Grace v Wright, draws the same distinction between a case in which the principal offender – or contravener – is the individual also impermissibly said to be an accessory to his or her own contravening conduct, and a case in which the principal corporate or equivalent offender – or contravener – is directly liable by the actions of the individual, in which case the individual can be an accessory in a personal capacity to conduct carried out in that corporate capacity.
246 The Commissioner’s submission finds strong support in Hamilton v Whitehead (1988) 166 CLR 121 at 128, in which, as the Full Court noted in Wheeler Grace v Wright, was decided after French J’s decision at first instance. In Hamilton v Whitehead, the situation was relevantly different so as to be distinguishable from Mallan v Lee, because the company was the principal offender, albeit via the actions of the individual charged as an accessory to the company’s conduct. The High Court said of that situation:
There is nothing conceptually wrong in such a course since “it is a logical consequence of the decision in Salomon’s Case [[1897] AC 22] that one person may function in dual capacities”: Lee v. Lee’s Air Farming Ltd. [[1961] AC 12 at 26]. In Reg. v. Goodall [(1975) 11 SASR 94 at 100] Bray C.J. discussed what his Honour described as: “some sort of metaphysical bifurcation or duplication of one act by one man so that it is in law both the act of the company and the separate act of himself as an individual” and expressed his conclusion as follows [at 101]: “my view is that the logical consequence of Salomon’s Case ... is that the company, being a legal entity apart from its members, is also a legal person apart from the legal personality of the individual controller of the company, and that he in his personal capacity can aid and abet what the company speaking through his mouth or acting through his hand may have done.” We agree with this view.
247 In this case, it was the CFMEU (separately from Mr Reeves) that was the relevant party to the Joint Development Agreement, such that the contravention spoke to it, rather than to the individuals who were its embodiment and by whom the contravention took place, but who could not themselves be directly liable due to not being parties to the Joint Development Agreement. In this respect, the individuals were not alleged to be accessories to their own acts, but, rather, to the act of the CFMEU, albeit that their conduct formed the basis of the CFMEU’s liability. The situation is on all fours with Hamilton v Whitehead. The principle in Mallan v Lee was no barrier to the pleading of accessorial liability as at [151] of the further amended statement of claim. The primary judge was therefore obliged to consider that pleaded allegation, and failed to do so. It follows that cross-appeal ground 3 succeeds.
248 Given that part of the basis for the finding of liability on the part of the CFMEU under s 50 arose from the conduct of Messrs Parker, Kera, Michael Greenfield, Collier, Darren Greenfield, Sloane, Taylor and Auimatagi in not complying with the Joint Development Agreement, that finding must inevitably lead to a finding of accessorial liability on the part of each of these eight individuals for precisely the same conduct. Declarations to that effect should be made.
249 The question of whether any additional penalty should be imposed upon those eight individual appellants is not one that readily lends itself to an affirmative answer in the particular circumstances of this case, particularly in the context of the “re-sentencing” exercise carried out towards the end of these reasons. While Hamilton v Whitehead permits the same conduct to constitute simultaneously the direct liability contravention by the entity to whom the prohibition is addressed (here, the CFMEU) and accessorial liability by the eight individual appellants whose conduct gave rise to that direct liability, in a penalty sense that does involve sanctioning the same conduct twice in a way that is conceptually different from vicarious liability giving rise to dual liability.
250 In the criminal law context, including Hamilton v Whitehead itself, direct liability often results in but a single sanction actually being sought and imposed per contravention: Mr Whitehead was charged with being knowingly concerned in six offences under s 169 of the former Companies (Western Australia) Code, but the company was not charged with those offences, but was charged with other offences. A choice was made to sanction that conduct in the hands of the individual as accessory, but not the company as well as principal. Sometimes there is no choice but to only sanction one, because, for example, the company has ceased to trade, so that charging the individual by whom the company offended on a Hamilton v Whitehead basis is the only option.
251 The approach of the Commissioner, while legally available, has an element of overkill, especially in the context of totality and deterrence. That is not to say that there will not be cases in which seeking dual sanctions will be appropriate, but this is not such a case. In the present circumstances, there is little or no additional deterrent value to be had in imposing further sanctions on the eight individual respondents, which is the dominant purpose, if not sole purpose, in imposing such sanctions. However, this is a relevant circumstance when considering the response to the penalty appeal in relation to the s 50 contravention in the hands of the CFMEU as a result of the conduct of the eight individual appellants, apart from Mr Reeves. The appropriate outcome is therefore to uphold this ground of cross-appeal, make declarations of contravention on the part of those eight individual respondents, but decline to impose any further penalty upon those appellants.
Cross-appeal grounds 4-6 – asserted error in dismissing s 348 claims against Messrs Michael Greenfield, Darren Greenfield, Sloane, Taylor and Auimatagi and in not applying the presumption in s 361 of the Act
252 Grounds 4 to 6 of the notice of cross-appeal state:
The primary judge erred in dismissing these claims at paragraphs [469]-[470] (M Greenfield), [488]-[492] (D Greenfield), [498]-[499] (Sloane), [507]-[510] (Taylor) and [519]-[520] (Auimatagi) on the basis that the evidence of the conduct and involvement of those Respondents did not attract the application of the presumption as to intent required by section 361 of the FWA.
The primary judge erred in not taking into account the evidence, according to his own findings, that each of these Respondents was involved in the organising of the Site Employees to attend the meeting on 24 July 2014 and their involvement in the Enforcement Action after that meeting, and in particular his own findings as to the nature of the Enforcement Action at paragraphs [357] and [383] of the judgment.
On the basis of these findings the primary judge should have applied the presumption under section 361 and found that these Respondents’ evidence had not rebutted the presumption, or that the evidence was sufficient to support a finding of contravention of section 348 against these Respondents.
253 The substance of the complaint raised by these grounds of cross-appeal is that the primary judge should have reached the same conclusion in respect of Messrs Michael Greenfield, Darren Greenfield, Sloane, Taylor and Auimatagi, as his Honour did for Messrs Parker, Kera, Reeves, and Collier, first, by overtly treating the evidence of the conduct and involvement as being sufficient to engage the reversal of onus provision in s 361 of the Act, and secondly, by finding that the onus was not discharged by those appellants. The reasoning in support of the first limb is that his Honour, in the particular paragraphs of his liability judgment listed in cross-appeal ground 4 (reproduced above), is said to have neglected to take into account his own findings on the evidence that each of those appellants was more involved than those particular conclusory paragraphs indicated.
254 Before proceeding to consider the competing arguments in more detail, it is important to consider what the primary judge said about s 361, being the provision that his Honour is effectively said to have overlooked, forgotten, or simply failed to apply. His Honour devoted a substantial portion of his reasons to the provisions and case law on the Act (from [75]-[131]). That included considering authority on “intent to coerce” and reproducing key provisions, such as s 361. At [101] to [107], his Honour considered at some length the terms and the operation of s 361, including detailed quotes from authority, none of which is asserted to be deficient in any way. It is therefore impossible to conclude that his Honour was anything other than fully conversant and cognisant of s 361 and its role in the determination of alleged contraventions of s 348. While overt references to that provision doubtless would have made these grounds of cross-appeal impossible to advance, the live question is whether the absence of such overt references in his Honour’s determinations in respect of these appellants means that they were not, for whatever reason, in fact in play.
255 It is also important to recognise that the practical effect of any reversal of onus provision as to state of mind, be it for a criminal offence or for a civil penalty contravention, is, in many cases, to force the person said to have the requisite state of mind to give evidence, because if they do not, and the provision is triggered, the adverse conclusion is likely to flow. That is what happened in this case. The individual appellants were, as a practical matter, forced to give evidence. When that occurs, the reversal of onus provision still has legal work to do, but its practical operation will often give way to an assessment of the totality of the evidence. Such evidence will often, if not ordinarily, conflict with other evidence on the issue. While the legal starting point is that the person against whom the allegation is made is taken to have the requisite intention, the Court, as the tribunal of fact, is required to form a final conclusion as to whether the intention was present or not, based on all of the evidence, and not just upon any component constituting a denial of the requisite intention or a positive assertion of a different intention. The reversal of onus provision is not to be understood as being insurmountable. There is no reason to doubt that the primary judge was fully aware of that legal starting point, not least because his Honour so clearly understood that to be what was required. As the passages quoted below make clear, this was not left to bare inference by his Honour.
256 The Commissioner seeks to demonstrate the overall point by comparing the reasoning leading to the adverse conclusion reached about Mr Kera with the reasoning leading to the exculpatory conclusion reached about Mr Taylor. The problem with that approach is that it fails to pay sufficient heed to the structure and approach of his Honour’s reasons leading up to the assessment of the case against each individual appellant in relation to, as is presently relevant, the alleged s 348 contraventions, but also well beyond that. As canvassed earlier in these reasons, his Honour framed his consideration of the case against each individual respondent by a set of detailed observations and overarching conclusions. His Honour then turned to consider the case against each individual respondent in turn, starting with Mr Parker. The structure of the reasons is such that the approach taken to the case against Mr Parker was replicated, but not necessarily wholly repeated, for each subsequent individual appellant, especially in relation to the operation of s 361. In the course of the consideration of the case against Mr Parker, which must be taken to have informed his Honour’s approach to the remaining individual appellants, the following was said (at [407]-[408], emphasis added):
… The “intent to coerce” is an inference drawn from the evidence and the findings made; the denials on the part of Mr Parker as to his having any such intention is not sufficient to either rebut that presumption or provide any basis upon which any other inference or finding should be made.
Written submissions advanced on behalf of Mr Parker, and the other individual Respondents, contended that no finding of any intent to coerce the Site employees should be made. Emphasis was placed upon (inter alia) the necessity to prove an intent to negate choice rather than a mere intent to influence the Site employees: cf. National Tertiary Education Industry Union [2002] FCA 441 at [103], (2002) 117 FCR at 143 per Weinberg J. The written submission was that there was “little suggestion that the site employees were subject to the overbearing of their will”. That submission is rejected. The prospect that any employee who attended the meeting on 24 July 2014 – and who witnessed the conduct of the CFMEU officers before, during and after the passing of the Stop Work Resolution – thereafter would feel free to return to work is discounted. Although circumstances may readily be envisaged where workers freely vote upon a resolution to stop work and thereafter remain free to make a decision to either comply with or flout the resolution passed, such circumstances are far removed from the events as they unfolded on 24 July 2014. It is concluded that the events as they unfolded and culminated in the passing of the Stop Work Resolution, and the conduct subsequent to that resolution, denied the Site employees the opportunity to exercise a free choice as to whether they should return to work. No evidence from any particular Site employee of his having been deprived of such an opportunity or evidence that any freedom of choice on his part was negated is necessary; the fact of “coercion” is a fact – the same as any other fact – that may be inferred from the surrounding facts.
257 The primary judge made no other overt reference to s 361 in his Honour’s consideration of the case against Mr Parker. However, there is no reason to doubt that s 361 was taken into account, given the explicit reference to “rebut[ting] the presumption”. The same conclusion should be applied to his Honour’s approach in considering the Commissioner’s cross-appeal on this issue, and thus to the impugned passages of his Honour’s reasons. Fairly read in context, his Honour was fully aware of the reversal of onus, and was conducting a careful analysis as to whether, on the totality of the evidence, it could properly be concluded that each of the individual appellants did, or did not, have the requisite intention to coerce for the purposes of s 348 – noting that although the pleading was less demanding than Hall dictates is required, the general conduct of the case below leaves little room to conclude that his Honour’s adjudication was misplaced. As already noted and relied upon by the Commissioner, his Honour found that the requisite intention was present for Messrs Parker, Kera, Reeves, and Collier, but not for Messrs Michael Greenfield, Darren Greenfield, Sloane, Taylor and Auimatagi.
258 Using the Commissioner’s examples:
(1) In the case of Mr Kera, the primary judge considered the evidence as a whole, and made a positive finding that the requisite intention to coerce was made out.
(2) In the case of Mr Taylor, his Honour’s reasons were brief and perhaps might have been more explicit, but nonetheless made it tolerably clear that he was in an entirely different category to Messrs Parker and Kera. His Honour was unable, upon considering the totality of the evidence, to make a finding that he had engaged in any action with intent to coerce the site employees to engage in industrial action for either day.
259 The Commissioner’s case in his cross-appeal for the remaining affected appellants is even weaker. It is that:
(1) in the case of Mr Michael Greenfield, the primary judge made a positive finding that his conduct was merely the conduit by which much of the conduct of Mr Parker took shape, and that he was merely observing what was unfolding rather than taking part in it;
(2) in the case of Mr Darren Greenfield, his Honour overtly referred to the rejection of his evidence as to the extent of his observations, but found that this rejection did not transpose into a finding of intention to coerce, also noting that the words he uttered could not be taken to be action taken against the site employees or Lend Lease Building;
(3) in the case of Mr Sloane, his Honour accepted that he was making sure that derision was being directed to the inspectors in attendance, but that this did not lead to a finding of intent to coerce site employees; and
(4) in the case of Mr Auimatagi, his Honour overtly accepted his denial of any intent to coerce, effectively finding that the meeting of the reversal of onus had been discharged.
260 It has not been established that s 361 was not taken into account by the primary judge. It follows that these grounds of cross-appeal must fail.
261 In light of the foregoing, the question of whether leave to amend should be granted to the Commissioner to overcome Hall does not arise.
Cross-appeal grounds 7 to 9 – asserted error in dismissing the s 417 claim against Mr Michael Greenfield for conduct on the first day (24 July 2014)
262 Grounds 7 to 9 of the notice of cross-appeal state:
The primary judge erred at [472]-[473] in dismissing the section 417 claim against Michael Greenfield on the basis that his conduct as found on that day did not support a finding that he “organised” industrial action.
The primary judge failed to take into account his own findings of fact and evidence that on 24 July 2014 Michael Greenfield was “fully engaged” in informing the Site Employees to attend the Stop Work Meeting that morning and engaged in the Enforcement Action after that meeting at [197], [494] and [314] of the judgment.
Though the primary judge did find that Michael Greenfield contravened section 417 due to his conduct on 25 July 2014, that finding has been appealed against and the crossappellant wishes to raise this point of cross-appeal in order to maintain a finding of contravention.
263 These related grounds of cross-appeal (the last being explanatory rather than asserting error) may be disposed of swiftly. The primary judge (at [376]-[378]) explicitly considered the point in time at which industrial action was capable of taking place on the first day (24 July 2014), namely the point at which the resolution was passed and acted upon, and also the role of action taken prior to that point in time in contextually understanding subsequent actions. In the passages complained of, his Honour was assessing the conduct of Mr Michael Greenfield on the first day, in the context of very detailed analysis of what had taken place and by way of contrast to the actions of others on that day, and in contrast to Mr Michael Greenfield’s actions on the second day. His Honour assessed the evidence and concluded that Mr Michael Greenfield’s involvement in encouraging site employees to attend the meeting nonetheless fell short of “organising” the Enforcement Action because, viewed as a whole, it fell short of possessing the relevant characteristics of marshalling or rallying those present. His Honour found that this line was crossed by Mr Michael Greenfield on the second day. It may be seen that considerable discrimination was applied by his Honour in navigating the nuanced differences in the evidence in the competing cases for each alleged contravention in respect of each appellant.
264 This part of the primary judge’s reasons can be seen to be a sound example of the impossibility, or at least impracticality, of requiring a trial judge to articulate every nuance in a fact-finding reasoning process, especially one as complicated as this case demanded in so many ways. This is the very sort of exercise in which the advantages possessed by the trial judge cannot readily be overcome by an appeal court, let alone gainsaid. His Honour’s fact-finding processes and reasons were detailed and comprehensive. His Honour was fully entitled – and, indeed, required – to reach the necessary conclusions and to explain why they were reached. They were brief on this topic, but no more was needed. Even if more was needed, error on the part of his Honour has not been demonstrated. These grounds of cross-appeal must therefore fail.
265 The penalty appeal grounds, although necessarily traversing discretionary decision-making of the kind requiring the application of the well-known and frequently applied principles in House v The King (1936) 55 CLR 499 at 504-505 that operate to impose additional constraints on appellate intervention, also involve distinct legal and evaluative issues by which the question of error is required to be assessed.
266 The appellants deal with penalty appeal grounds 9, 17 and 18 together on the closely related topics of course of conduct, totality and double jeopardy, each of which is concerned with an appropriate recognition of the relationship between any overlapping aspects of the contravening conduct found to have taken place. Each concept requires, in different ways, a holistic view of what has taken place to ensure that the penalties imposed overall are proportionate to the conduct. The close relationship and common objective between these concepts means that they can often overlap. However, it is also important not to lose sight of important and fundamental differences in the applicable legal principles. For that reason, while they generally need to be considered in the context of one another, they remain distinct and, in this case at least, are best dealt with separately before considering the remaining penalty appeal grounds.
Appeal ground 9 (on penalty) – asserted error in failing to apply the course of conduct principle (common law or s 557 of the Act) to provisions other than s 417, in relation to the nine individual appellants and the Unions
267 Appeal ground 9, as to course of conduct, is as follows:
The primary judge erred in rejecting the contention that the actions of any of the appellants should for the purposes of penalty be regarded as a single course of conduct, either at common law or under s 557 of the FW Act except as to the course of conduct in relation to certain contraventions of s 417.
Particulars
(i) The finding at [12] and [14] of Parker (No 2) that there was not a single course of conduct that took place over the two different days particularly in circumstances where the primary judge found a single course of conduct in relation to s 417 at [10] of Parker (No 2);
(ii) The rejection of a contention in Parker (No 2) that there was a single course of conduct that encompassed both the coercion of Lend Lease and the coercion of the site employees;
(iii) The rejection of the contention in Parker (No 2) that there was a single course of conduct that encompassed the actions of the CFMEU and the CFMEU NSW in circumstances where s.793 of the FW Act deems conduct of an individual to be that of more than one body corporate;
(iv) The rejection of the contention in Parker (No 2) that there was a single course of conduct that encompassed the actions of the individual appellants;
(v) The rejection of a contention in Parker (No 2) that there was a single course of conduct that encompassed the actions of individual appellants and the corporate appellants in respect of the same events.
268 As the appellants point out, the course of conduct principle applied by s 557 of the Act to Mr Reeves, and by common law to the remaining appellants (the common law not being excluded, as the primary judge recognised by referring to Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2017] FCAFC 53; 249 FCR 458 (Perth Airport case) at [88]). The issue raised is whether the primary judge gave sufficient recognition to the interrelationship between factual and legal elements of multiple contraventions and the conduct that constituted them, as his Honour recognised was required by quoting (at [12] of the penalty judgment) Construction, Forestry, Mining and Energy Union v Cahill [2010] FCAFC 39; 269 ALR 1; 194 IR 461 at [39] (emphasis in original):
As the passages in [Construction, Forestry, Mining and Energy Union v Williams [2009] FCAFC 171, (2009) 262 ALR 417] explain, a “course of conduct” or the “one transaction principle” is not a concept peculiar to the industrial context. It is a concept which arises in the criminal context generally and one which may be relevant to the proper exercise of the sentencing discretion. The principle recognises that where there is an interrelationship between the legal and factual elements of two or more offences for which an offender has been charged, care must be taken to ensure that the offender is not punished twice for what is essentially the same criminality. That requires careful identification of what is “the same criminality” and that is necessarily a factually specific enquiry. Bare identity of motive for commission of separate offences will seldom suffice to establish the same criminality in separate and distinct offending acts or omissions.
269 The primary judge also noted in the same paragraph of his Honour’s reasons that while the same conduct should not be penalised twice, nor should contraventions be grouped so as to impose only one penalty for multiple contraventions, citing Fair Work Ombudsman v Grouped Property Services Pty Ltd (No 2) [2017] FCA 557 at [423]. His Honour considered that the proper conclusion was that there was a single course of conduct for the s 417 contraventions that involved “organising or engaging in industrial action” across the two days, but separate courses of conduct for each day for the “intent to coerce” contraventions of ss 348 and 355. As to the latter, his Honour particularly noted that the facts changed between the two days as the s 418 order was made by the Fair Work Commission on the afternoon of the first day (24 July 2014), noting in the penalty judgment at [14]-[15] in relation to the second day (25 July 2014) that:
… Mr Parker was then not only seeking to inform the workers assembled on that day of the order that had been made by the Commission but was also “setting out to create ‘an atmosphere of defiance’” which was separate action taken with a view to “incit[ing] or encourag[ing] the workers to continue their existing strike action”: [2017] FCA 564 at [255] to [256]. Mr Reeves on 25 July 2014 also urged the workers to “make a decision like yesterday” notwithstanding the orders of the Commission: [2017] FCA 564 at 288.
Moreover, it is further separately concluded that the facts giving rise to the contraventions were sufficiently disparate such that it could not be concluded that the contraventions arose out of the same “legal and factual elements”. Although ss 348 and 355 of the Fair Work Act are both directed at proscribing “coercion”, the elements of the two offences are both expressed in different terms and involve separate findings of fact necessary to make out a contravention of each provision. On no view can it be said that the “legal and factual elements” necessary to prove a contravention of s 417 are the same as the elements necessary to make out a contravention of either s 348 or s 355.
270 The appellants contend that while the primary judge correctly stated the test for ascertaining whether there was a single course of conduct, his Honour erred in its application. A core complaint is that his Honour, in the second paragraph reproduced in the passage above, set the bar for distinguishing between different contravention provisions too high, by requiring them to be “the same” before they could be treated as involving a single course of conduct. The appellants contend that, rather, the issue is one of interrelationship, requiring consideration of the substance of the provisions (following Rocky Holdings Pty Ltd v Fair Work Ombudsman [2014] FCAFC 62; 221 FCR 153 at [18]-[23]) and of the common legal and factual elements (applying by analogy Pearce v The Queen [1998] HCA 57; 194 CLR 610 at [40] in respect of the need for the focus to be on conduct, rather than the particular boundaries of offences, as drafted as a matter of legislative history).
271 The appellants therefore contend that the primary judge was required to consider:
(1) whether the findings of contravention of ss 50, 417, 348 and 355 for each of the two days were legally and factually related, especially as they were pleaded as contraventions established by conduct taking place over those two days; and
(2) whether the findings of the coercion contraventions (contrary to ss 348 and 355) and the organising of industrial action (contrary to s 417) were legal and factually related, as opposed to whether they were the same,
and that, had this been done, such a relationship would have been found to exist.
272 There is an immediate problem with the first question that the appellants contend the primary judge was required to ask of himself. As the Commissioner points out, the passage quoted at [268] above from Cahill requires consideration not just of an interrelationship between the legal and factual elements of two or more contraventions, but also the factually specific inquiry as to whether the different contraventions constitute the “same criminality”, translating that criminal law concept to the civil penalty context.
273 Concepts such as course of conduct (and, for that matter, totality) that are drawn from the criminal law and applied to the imposition of civil penalties are not rigid rules of law, but, rather, general principles to guide the exercise of the penalty imposing discretion: see Royer v Western Australia [2009] WASCA 139; 197 A Crim R 319 per Owen JA at [21], being one of a number of paragraphs in that case dealing with the “course or conduct” or “one transaction” principle. Royer was quoted at length and with approval in Construction, Forestry, Mining and Energy Union v Williams [2009] FCAFC 171; 262 ALR 417; 191 IR 445 at [17] to [19].
274 In Royer, Owen JA made it clear, at [21] and in the following paragraphs, that course of conduct is not a straitjacket, denying a judge the capacity to craft a result that properly reflects the conduct in question even if the course of conduct principle does squarely apply. His Honour at [30] (quoted in Williams at [18]), described how a judge imposing a criminal sentence must consider the overall result of the sentencing exercise (here the penalty imposition exercise) and the need to sometimes depart from what the literal application of the principle might produce. Owen JA described course of conduct and totality as being closely related. That is undoubtedly correct, but the two principles provide different solutions to the issue of a multiplicity of offences or contraventions and how best to arrive at a just result, which is part of the reason why they often must be considered separately, but in the context of one another.
275 The appellants maintain that the primary judge erred by requiring the legal and factual elements of the different provisions contravened to be the “same”. While that is the word used by his Honour, the real question is not one of possible infelicity in expression, but, rather, error in the application of principle. The passage quoted by his Honour from Cahill, reproduced at [268] above, makes several references to the “same criminality”, as applied to a civil penalty context, to determine whether there is or is not a single course of conduct. In that sense and context, his Honour was, perhaps not entirely accurately, using the phrase “same ‘legal or factual elements’”. His Honour was engaged in a comparative exercise, following a lengthy trial, liability submissions, a detailed liability judgment and penalty submissions. His Honour clearly focussed on the need for a requisite similarity in the underlying conduct, legally and factually, for different contraventions under different provisions of the Act, in order to determine whether they could properly be regarded as a single contravening activity (as opposed to different but overlapping activity, which is better dealt with under the rubric of totality). His Honour accepted that this threshold was met for the s 417 contraventions over the two days, but not for the s 50 and “intent to coerce” contraventions. Whether that assessment process was correctly carried out is the next topic to be addressed.
276 In relation to whether his Honour posed the right question, to read the phrase “same ‘legal or factual elements’” otherwise is to attribute to his Honour a plainly untenable view that a course of conduct only arises with identical legal and factual elements. The balance of his Honour’s reasons proximate to the use of that phrase clearly indicate that this was not the exercise that was engaged in. That phrase was being used by his Honour in the sense described in Cahill of ascertaining whether the different contraventions reflected the same or different “criminality”, as that criminal law concept is applied by analogy to the civil penalty context.
277 As to the content of the evaluative process engaged in by the primary judge, the appellants submit that the factual substratum was the same across the two days, being the calling of a strike on the first day (24 July 2014) and a further meeting on the second day (25 July 2014), after which work resumed, with the exception of workers who did not attend the second meeting and remained away from work, as agreed on the first day. The appellants point to the absence of an overt finding that there was industrial action that only started on the second day, and that there was no relevant factual distinction between the industrial action on both days. The appellants thus contend that the contraventions across the two days should have been grouped for the ss 50, 417, 348 and 355 contraventions, in the same way as the s 417 contraventions were grouped.
278 The Commissioner responds by pointing to the primary judge’s consideration of the specific facts and the different nature of the contraventions in the penalty judgment at [14]-[15]. The Commissioner also directs attention to [41] and [43] of the penalty judgment, at which his Honour identified, in respect of Mr Kera and Mr Reeves, some of the pertinent differences between the two days, including the distinct character of the “intent to coerce” contraventions. As the Commissioner points out, the s 417 contraventions were based on the Blocking Action leading to the Stop Work Action, which his Honour evidently regarded as being sufficiently homogenous over the two days as to warrant being treated as a single course of conduct. However, his Honour took a different view to the coercion contraventions, directed as they were to the next stage of enforcement, including by way of abuse and intimidation. That enforcement stage did not, inevitably, have to follow on from the s 417 stage. The conduct could have gone no further than a s 417 contravention. Moreover, this conduct was differentially directed to the site employees and to Lend Lease Building, due to different findings of fact and different injury from, respectively, loss of pay, and loss of work continuity. The Commissioner submits that these were all relevant considerations, and that error in relation to determining course of conduct was not made out.
279 The Commissioner draws support from Williams and from the Perth Airport case, in which the contraveners secured a stoppage of work and threatened to return the next day to do the same. He contrasts that to this case, in which the individual appellants did, in fact, return and secured a second round of industrial action, being less serious by being more limited, but being more serious by being in defiance of the s 418 order. The Commissioner also submits that deterrence requires (or, perhaps more accurately, that the primary judge was entitled to conclude that deterrence requires) that coercion contraventions, as particularly serious forms of industrial misconduct, be dealt with as separate contraventions, a stance that is supported by the majority decision in the Perth Airport case at [97].
280 The primary judge approached the question of course of conduct carefully as part of the exercise of the discretion in penalty imposition. His Honour was not obliged to conclude that the aspect of the individual appellants engaging in much the same conduct on the second day as on the first, and the action in persisting, meant that this had to be viewed as but a single course of conduct once features were identified that made it sufficiently separate and distinct. This was an evaluative exercise by his Honour. The appellants must demonstrate error, not merely an alternative way of viewing what took place. His Honour was entitled to have regard to the different stages at which the different contraventions manifested. Putting to one side at this stage the issue of totality, when fairly and properly considered, his Honour has not been shown to have erred in not reaching the same conclusion in respect of the ss 348 and 355 contraventions as reached in respect of the s 417 contraventions.
281 A different argument is advanced in relation to Mr Reeves and course of conduct, concerning the interpretation and application of s 557. The appellants submit that s 557 would apply to separate breaches by Mr Reeves of s 50 (being the contravention of the enterprise agreement by engaging in industrial action) and s 417 (being the organising or taking of industrial action). The appellants contend that s 557 has the effect that these separate contraventions would be taken to constitute a single contravention, consequently requiring a recalculation of the penalties imposed upon the Unions.
282 The appellants’ argument that s 557 permits the grouping of contraventions of s 50 and s 417 cannot be accepted. As the Commissioner points out, s 557 only operates to deem contraventions of the same provision as a single contravention, rather than as contraventions of different provisions. Moreover, for the purposes of s 557, conduct is not looked at as abstract from the contravention provision, as was made clear in Rocky Holdings at [19] and [22].
283 It should be noted that even the Commissioner’s reference to s 557 operating to deem contraventions of the same provision as a single contravention may be overstating the effect of that provision in some circumstances. The net effect of [10]-[18] in Rocky Holdings was to reject a submission that where there were two or more contraventions of a single provision of the Act, s 557(1) operated so that each contravention of each provision was taken to constitute a single contravention. Section 557(1) did not operate at that level, but, rather, at the level of the discrete obligations required to be observed.
284 The Full Court in Rocky Holdings accepted a submission (made by the Fair Work Ombudsman) that one of the key objects of the Act was to ensure, through an effective penalty regime, compliance with minimum terms and conditions through the National Employment Standards and modern awards. The same observation applies to compliance with the individual terms of enterprise agreements by reason of the express terms of s 50 of the Act. The Full Court held that the purpose of s 557 was not simply to reduce the number of contraventions of a civil penalty provision to one where they arise from a course of conduct. If this was the purpose, then it could very easily have been stated. Such an interpretation would undermine the purpose and deterrent effect of the enforcement regime under the Act, because the maximum penalties available for multiple breaches of a diverse range of terms or provisions in industrial instruments and industrial legislation would be substantially reduced. Such a construction was not supported by the text of the Act. Again, the same conclusion applies to separate terms of enterprise agreements. Rather, as the Full Court pointed out at [13]:
… The reference in s 557(1) to “a civil remedy provision referred to in subsection (2)” discloses that it is the provision which is relevant. Section 557(2) identifies [here s 50] as a civil remedy provision. It is the substance of those provisions which create the proscriptions. … Section 557(2) should be recognised to be a form of definitions provision. It defines civil remedy provisions for the purposes of s 557(1). The function of s 557(2) is to indicate that when a provision is identified, it is the substance of the provision found elsewhere in the Act [in this case, s 50] which is the civil penalty provision. As the FWO put it in written submissions:
However, section 557 also operates on contraventions which relevantly occur when a term of an award or a provision of an NES [here, a term of an enterprise agreement] is contravened. This now occurs indirectly through the operation of sections 44 and 45. In the case of s. 45 (for example), the contravention occurs when a term of a modern award is contravened. Thus the effect of subsection 557(1) in relation to contraventions of s. 45 is that:
… 2 or more contraventions of (a term of an award) are, subject to subsection 3, taken to constitute a single contravention …
The appellants [wrongly] construe s. 556 as if it said that 2 or more contraventions of an award or 2 or more contraventions of an NES are taken to constitute a single contravention.
(Emphasis in original.)
285 The Full Court in Rocky Holdings at [14] embraced the following example from the Explanatory Memorandum for the Fair Work Bill 2008 (Cth), aided by the operation of s 15AB(1)(b) of the Acts Interpretation Act 1901 (Cth), as reflecting the true operation of s 557(1) of the Act:
For example, if a company contravenes a single term of a modern award in respect of ten employees, these ten contraventions are taken to be a single contravention. This means that the maximum penalty that the Court can impose for the contravention is 300 penalty units.
Similarly, if a company contravenes five separate terms of a modern award in respect of ten employees, these 50 contraventions are taken to be five contraventions. This means that the maximum penalty that the Court can impose is five times a maximum penalty of 300 penalty units.
286 Analogous reasoning must apply when the contravention is one of different terms of an enterprise agreement, each of which is found to be in breach of s 50. Multiple contraventions of a single term may be deemed to be a single contravention (occurring so as to be a course of conduct, as required by s 557(1)(b)), but contraventions of different terms will be separate contraventions, even though sanctioned by the same civil penalty provision in the Act. In the case of Mr Reeves, s 557 not only did not require any grouping of his conduct in respect of contravening a term of the enterprise agreement and organising industrial action, but, in fact, did not permit that to take place. The primary judge therefore cannot be said to have erred in that respect.
287 The Commissioner also points out that the submissions below for Mr Reeves did not suggest that his contraventions of s 50 and s 417 should be treated as a single contravention. That too puts paid to this complaint.
288 It follows that ground 9 must fail.
Appeal ground 17 (on penalty) – asserted error in finding that the penalties imposed upon the nine individual appellants and the Unions were appropriate in their totality
289 Ground 17, as to totality, is as follows:
The primary judge erred in finding that the penalties were appropriate in their totality at [56] of Parker (No 2) in circumstances where the primary judge should have stepped back and determined whether the penalty imposed properly reflected the seriousness of the contraventions. In doing so, the primary judge should have reduced the penalties to be ordered against the appellants to take into account the principle of totality.
Particulars
(i) Parker, Kera, Reeves and Collier had pecuniary penalty orders made against them in relation to the same or similar conduct and were subsequently penalised more than once for that conduct;
(ii) The CFMEU and CFMEU NSW had penalty orders made against them on the same basis;
(iii) the primary judge used s 793 of the FW Act to deem conduct of an individual to be that of more than one body corporate, resulting in this case in the imposition of a total of 175% of the maximum penalty on corporate respondents for the same contravention;
290 The appellants’ case on totality is brought in a manner that goes beyond consideration of the impact of the penalties imposed upon the individual appellants to also consider the combined penalties on both the various individual appellants and the two Unions. There is no doubt that the penalties imposed were severe.
291 The appellants contend that the primary judge erred in concluding, for reasons they describe as “unclear”, that the collective penalties (that is, totality) against all of the present appellants were appropriate. The appellants submit that the effect of the erroneous approach to totality and related issues was as follows:
(1) as to the affected individual appellants, Messrs Parker, Kera, Reeves and Collier had penalty orders made in relation to the same or similar conduct, being the organising and taking of action at two meetings on consecutive days in support of Mr Genovese, such that the principle of totality required a reduction of the total penalties against each of them; and
(2) as to the two Unions:
(a) the fixing of penalties was partly driven by the number and identity of the individual appellants, which had the effect of artificially increasing the penalties against the Unions (being the corporate appellants). This was an anomaly that was accentuated by a failure to apply principles of totality (and the principle of course of conduct, as has already been dealt with) in the use of the imputation provisions in s 793 of the Act to deem the conduct of the individual appellants to be the conduct of two separate bodies corporate;
(b) the result was that the CFMEU and the CFMEU NSW were found to have contravened the same sections by the imputation of the same conduct of the same individuals, leading to an aggregate penalty of 175% of the maximum penalty for bodies corporate in relation to the same conduct, which did not take into account the need to look at the totality of the contravening behaviour, which should have resulted in a reduction of that total penalty; and
(c) the necessary totality reduction required could have been done in a number of different ways, such as by:
(i) a reduction of the individual penalties;
(ii) the fixing of a single global penalty; or
(iii) the staying of particular penalties upon the payment of others,
citing General Manager of the Fair Work Commission v Thomson (No 4) [2015] FCA 1433 at [9]-[11], in which the third option was adopted.
292 The appellants contend that the primary judge should have grouped the contraventions of the two Unions because the imputation of liability was legally and factually related. It is difficult to see how this argument fits into the concept of a course of conduct by an individual contravener, which is why it is now dealt with as part of the complaint made about totality. However, totality is no better a fit for this issue. As the Commissioner points out, the two Unions are separate legal entities. Each are body corporates for the purposes of s 793 of the Act. The Commissioner submits that the primary judge was therefore correct to apply that provision to each Union, and that there is no collective contravention nor absurdity, citing Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2017] FCAFC 113; 254 FCR 68 at [81]-[82]. That submission should be accepted.
293 It is difficult to see how there was any error in imputing legal liability to both Unions, or that there was any sound basis upon which the primary judge was able to ignore their separate legal identities. The Commissioner further submits that:
(1) the penalties for the Unions were not artificially increased, but, rather, reflected the circumstances of the contravening, with the success of the blockade and industrial action having depended on the deployment of numerous union officials and organisers to achieve such a significant strike on the first day in particular; and
(2) that the coercion deployed was more forceful because of the numbers of individual appellants involved, with the use of each agent appropriately reflected in the separate contraventions having being found under s 793 to be those of the two Unions.
294 The Commissioner also points out that the CFMEU NSW was successful in having the primary judge take into account its separate identity when assessing the appropriate penalty and the need for deterrence, and that beyond that, there was no proper basis for complaint, given the correct application of s 793. That is correct as far as it goes, but does not grapple with the issue of totality in relation to the two Unions.
295 The Commissioner characterises this appeal ground, as argued by the appellants, as failing to identify error, and rising no higher than disagreement with the outcome. The Commissioner points to the primary judge having correctly identified the principles pertaining to totality, and as having addressed those principles by reference to the factors his Honour considered relevant to the assessment of penalty, noting that the appellants did not suggest that any of those factors were either irrelevant or based on any mistaken view of the facts.
296 Rather, the Commissioner submits that the complaint in respect of the individual appellants is that they were penalised more than once for the same conduct, which is a course of conduct consideration, rather than a totality consideration. The Commissioner submits that there is no identification of error by merely asserting that the principle of totality required a reduction of the total penalties, and relies upon the following passage from Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith [2008] FCAFC 8; 165 FCR 560 per Buchanan J at [102]:
The totality principle is a guide to sentencing practice. It must be adapted to the circumstances. It is designed to avoid injustice in the overall result. It is not a principle which suggests that a penalty should necessarily be reduced from an aggregate total fixed for multiple offences. Rather, it involves a final check to ensure that a total or aggregate penalty is not, in all the circumstances, excessive. It may not be. …
297 The appellants assert in reply that it was not enough for the primary judge to recite the totality test; rather, the principle had to be grappled with and applied, citing the following passage from Mill v The Queen (1988) 166 CLR 59 at 63 (quoting with approval from Thomas, Principles of Sentencing, 2nd Edition (1979) at 56-7, references omitted from the quote):
The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate is ‘just and appropriate’. The principle has been stated many times in various forms: ‘when a number of offences are being dealt with and specific punishments in respect of them are being totted up to make a total, it is always necessary for the court to take a last look at the total just to see whether it looks wrong[’]; ‘when ... cases of multiplicity of offences come before the court, the court must not content itself by doing the arithmetic and passing the sentence which the arithmetic produces. It must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences’.
298 The principle relied upon by the appellants is not in doubt. There is no particular formula or form of words by which a judge must conduct the necessary review. The primary judge did not merely engage in a process of arithmetic. To the contrary, his Honour:
(1) expressly considered (at [54]) whether the quantum of the penalties that he imposed upon both the individuals and the Unions in their totality was appropriate for each and overall, concluding that they were;
(2) expressly recognised (at [55]), by quoting from Goldberg J’s judgment in Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (1997) 145 ALR 36 at 53, that it was necessary “to ensure that … the sum of the penalties imposed for several contraventions does not result in the total of the penalties exceeding what is proper having regard to the totality of the contravening conduct involved”;
(3) also reproduced that part of Safeway containing the quote in the preceding subparagraph, by which Goldberg J reproduced the passage quoted with approval in Mill now relied upon by the appellants;
(4) cited Fair Work Ombudsman v Grouped Property Services at [428], which, it should be noted, quoted a portion of the Full Court decision in Director, Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union (2015) 229 FCR 331 that was not affected by being overturned by the High Court in Commonwealth v Director, Fair Work Building Industry Inspectorate [2015] HCA 46; 258 CLR 482 – the Full Court referred to Mill and Johnson v The Queen (2004) 78 ALJR 616; 205 ALR 346 at [18]-[20], characterising those decisions as requiring that “once appropriate sentences are determined in relation to each individual offence, the aggregate must be reviewed to ensure that it is just and appropriate for all the offences. If not, the sentence should be adjusted by making some of the sentences concurrent or partly concurrent” (emphasis in the reproduction); and
(5) concluded (at [56]), that the penalties in their totality were appropriate, especially when consideration was given, inter alia, to
• the facts and circumstances surrounding each contravention.
Also of relevance in supporting such a conclusion are such further factors as:
• the number of sub-contractors and workers disrupted by the unlawful action;
• the very real potential, if not the fact, that significant loss would inevitably have followed from such unlawful action; and
• the fact that the Barangaroo site was one of the largest building projects then being undertaken in the Sydney city region.
299 If this ground of appeal is to succeed, it will turn not so much on what was said and addressed, but on what was left unsaid or was otherwise not addressed. That is the thrust of what is left of this aspect of the appellant’s case. That is a difficult exercise, especially with the number of individuals involved and the cross-over and interaction of what each did. The primary judge’s articulation of the totality exercise was, quite understandably in all the circumstances, somewhat sparse. It described what had to be done, and it described the conclusion reached, but it did not articulate just how the process of stepping back and viewing the penalties as a whole had taken place. If it was otherwise apparent that this had in fact occurred, the point would go nowhere. As it transpires, it goes nowhere for the principal individual appellants, but finds fertile ground for the union appellants.
300 The primary judge was not obliged to apply the totality principle in a particular way, or indeed at all, provided that it was properly considered, which it was when due regard is had to his Honour’s extensive and careful consideration of the conduct of the individuals, especially in the liability judgment. The short summary of what took place in [56], reproduced at the end of [289(5)] above, in its proper context, leaves no room to conclude that inadequate attention was given to totality in relation to those individuals. This is especially so when regard is had to the differentiated penalties imposed as between each of them; and also the differential penalties imposed on the other five individual appellants. Further articulation was not required for this Court to be satisfied that the totality principles were not just stated, but also properly applied, in relation to Messrs Parker, Kera, Reeves and Collier. It follows that this ground of appeal must fail for those individuals.
301 Unfortunately, the primary judge’s approach to penalising the two Unions, upon close consideration, leaves room to conclude that inadequate attention was given to totality for both of them. The primary judge applied 26 penalties at 100% of the maximum for bodies corporate to the CFMEU, and 25 penalties at 75% of the maximum to the CFMEU NSW. These reflected the contraventions of s 348 and s 355 by the four principal individual appellants (Messrs Parker, Kera, Reeves and Collier) on each the first and second day, the s 417 contraventions by all nine individual appellants, and the contravention of s 50 by the CFMEU via the actions of the eight individual appellants apart from Mr Reeves. His Honour’s approach had the practical effect of treating each contravention in the hands of each union as though they took place on separate occasions.
302 There needed to be account given not just to the different provisions and the different days separately in the hands of each Union, considered further below, but also to the patterns of attribution. There needed to be recognition, overt or sufficiently implicit, of the impact of the commonalty, combination or overlap in attribution of conduct by reference to the actions of the individuals, at least when such substantial penalties were imposed so many times. That meant both a recognition and adjustment for this attribution overlap having taken place, or an explanation as to why no such adjustment was called for in such stark circumstances. As already noted, the issue arises not by reason of any overt error, but due to a latent error found in what was not addressed.
303 There was no overt or even implicit accounting at this stage of the penalty imposing process, or earlier, for the fact that the events all happened over the two days by individuals acting in concert towards achieving a common objective, with the attributive conduct overlapping. The actions of each individual took place at about the same time on each of the two days, operating in combination. Thus, in the hands of each Union, each of the four attributed contraventions of s 348 on the first day involved overlapping conduct by the four principal individual appellants. The same is true for the four attributed contraventions of s 348 on the second day, the four attributed contraventions of s 355 on both the first day and the second day, and the nine attributed contraventions of s 417 over the two days. While this was undoubtedly worse than such conduct not happening in combination, and certainly justified a stern approach and overall outcome, his Honour’s approach, in a latent way, treated the liability separately attributed to the CFMEU and CFMEU NSW from the conduct of each individual as though it was mutually exclusive, when it was not.
304 A second aspect of totality highlights the distinction between that principle and the closely related principle of course of conduct. While it has already been found that the primary judge was entitled to treat both the two types of coercion as separate courses of conduct, and to treat those two courses of conduct as separate as between the two days upon which they occurred, the overlap in the conduct thereby separately proscribed still needed to be brought to account as a matter of totality. If that is not done, to the extent of the overlap, the same conduct is sanctioned twice. Yet, with regards to each of the Unions, it is not apparent that this formed part of the totality exercise carried out by his Honour. Unlike the four principal individual appellants, there is no reasonable basis to infer that it was nonetheless conducted without overt reference.
305 There was an important issue of totality involved when it came to the imposition of penalties upon the two Unions based on attributed liability, the overlapping conduct in relation to the different provisions in play and the two days over which the conduct occurred. This was of sufficient moment and complexity to need it to be overtly addressed in the circumstances of this case, at least when the maximum penalty, or close to the maximum penalty, is applied so many times for attributed events that overlapped to such a significant degree. Imposing 26 maximum penalties and 25 penalties at 75% of the maximum treated the conduct as being for 26 or 25 separate events, each of a seriousness warranting the maximum penalty or 75% of the maximum penalty. This required the real and substantial overlap in respect of attribution, types of coercion, the interplay with the s 417 contraventions and the s 50 contravention and the common ground between the two days to be addressed and brought to account as a matter of totality. That did not occur. It follows that the two union appellants must succeed on this ground of appeal.
306 Ground 17 must therefore fail for Messrs Parker, Kera, Reeves and Collier, but succeed for the two Unions.
307 The penalty imposition exercise for the Unions will need to be performed either afresh by this Court, or by the primary judge on remittal. The better course is the former, to be carried out once all of the remaining penalty grounds have been addressed.
Appeal ground 18 (on penalty) – asserted error in not applying s 556 of the Act to find that conduct by Messrs Parker, Reeves, Collier and the Unions had been penalised in relation to other contraventions
308 Ground 18, as to double jeopardy, is as follows:
The primary judge erred in not then applying s 556 of the FW Act by finding that the pecuniary penalties related to particular conduct in respect of which other pecuniary penalties had been ordered. The appellants to whom this ground relates are Parker, Kera, Reeves, Collier, the CFMEU and CFMEU NSW.
309 Section 556 provides:
Civil double jeopardy
If a person is ordered to pay a pecuniary penalty under a civil remedy provision in relation to particular conduct, the person is not liable to be ordered to pay a pecuniary penalty under some other provision of a law of the Commonwealth in relation to that conduct.
310 The appellants contend that the primary judge erred in failing to have regard to s 556, which requires a court to apply double jeopardy principles akin to the criminal law once it has made findings that could give rise to a person being ordered to pay a pecuniary penalty, in accordance with the principles described and applied in Australian Building and Construction Commissioner v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (The Australian Paper Case) (No 2) [2017] FCA 367 at [40]:
The better view is that the reference to “particular conduct” in s 556 is to what the person actually did, with all of its attributes and in its whole context. If that conduct gives rise to liability to penalty under two or more provisions, the section is, in my view, engaged. In the present case, the conduct of the workers who took the industrial action attracted liability under s 417(1) and under s 421(1). It is true that, additionally to that conduct, there were adjectival elements the presence of which were necessary ingredients of the provisions respectively, and that these elements differed as between the two (the in-term agreement under s 417(1) and the Commission's order under s 421(1)), but, as it happened, both were in fact present on 31 March 2014 and both gave legal consequences to what the workers actually did. In my view, s 556 would stand in the way of penalties being imposed on the workers themselves under both sections, and the same applies where others, such as the organisers, were deemed to have contravened because of their involvement in that very conduct.
311 The appellants contend that the proper application of s 556 would have meant that each appellant found to have engaged in particular conduct in contravention of one or more penalty provisions would only have been ordered to pay a civil penalty in respect of one of those penalty provisions.
312 The Commissioner submits that the issue of s 556 was raised in his written submissions of both August 2016 and June 2017, in which it was submitted to the primary judge that the conduct which supported the contraventions of different provisions was different, such that it was appropriate to impose separate civil penalties for each contravention. In those submissions, the Commissioner accepted that this should not occur in respect of the engagement in industrial action by each site employee, or for the coercion of each site employee or Lend Lease Building. By contrast, the appellants made no double jeopardy or s 556 submissions before the primary judge delivered the penalty judgment. The parties subsequently addressed s 556 in the context of submissions filed after that judgment was delivered for the purpose of formulating final orders. At a hearing about the final form of the orders, counsel then appearing for the appellants conceded that if findings were made that the contraventions of different provisions were based on manifestly different conduct, s 556 would have no application. His Honour made that finding at [15] of the penalty judgment, referring to separate findings of fact made against each of Messrs Parker, Kera, Reeves and Collier, giving rise to their contraventions of ss 348 and 355 of the Act. The Commissioner therefore submits that The Australian Paper Case and also Australian Building and Construction Commissioner v Huddy (No 2) [2017] FCA 1088 are distinguishable because in those cases, the active contraveners were the site employees themselves who engaged in the single uniform act of refusing to work, with the union officials being liable only as accessories under s 550.
313 In reply, the appellants submit that the primary judge’s penalty reasons at [15] were not directed to s 556, revisiting his Honour’s use of the phrase, “same ‘legal or factual elements’”, but for the purpose of drawing attention to the different operative phrase, “in relation to particular conduct”. In substance, this revisits the point about his Honour’s consideration of whether the underlying conduct was relevantly different, such that s 556 is not engaged. As such, it goes nowhere.
314 The appellants also rely upon Nahlous v The Queen [2010] NSWCCA 58; 77 NSWLR 463, asserting that his Honour’s conclusions were inconsistent with that decision. However, that assertion does not survive careful scrutiny. Nahlous was concerned with the dual charging of money laundering and the predicate offence that gave rise to the money that was “laundered”. The case concerned that dual charging being oppressive, so as to warrant no penalty being imposed on the money laundering offence. Little of use can be drawn from that highly specific criminal case that applies to the present civil penalty contraventions.
315 The final sentence of the appellants’ written submissions in reply makes it clear that the real complaint is as to the result, rather than the proper identification of error. The substance of the Commissioner’s submissions have not been met, and those submissions should be accepted. There was no error in the primary judge accepting that s 556 of the Act did not apply.
Appeal ground 10 (on penalty) – asserted misapplication of appropriate guiding principles, especially deterrence, in relation to the nine individual appellants and the Unions
316 Ground 10 of the amended notice of appeal states:
The primary judge misapplied appropriate guiding principles in relation to civil penalties, in particular the proper application of the principle of deterrence.
Particulars
(i) The primary judge apparently took into account an irrelevant consideration being his difficulty in perceiving at [31] of Parker (No 2) “how such conduct can be in the best interests of the bulk of its members and the workers it supposedly represents”;
…
(iii) The penalties ordered against the individual respondents were based only upon an assessment of culpability.
317 The appellants’ complaint is that, following Commonwealth v Director, Fair Work Building Industry Inspectorate [2015] HCA 46; 258 CLR 482 (Civil Penalties case) at [55], the “purpose of a civil penalty, as French J explained in Trade Practices Commission v CSR Ltd, is primarily if not wholly protective in promoting the public interest in compliance”; that is to say neither retribution nor rehabilitation have any part to play in the imposition of civil penalties. The appellants contend that the primary judge did not deal with deterrence at all in relation to the individual appellants, and thereby fell into error. In relation to the Unions, the appellants point to his Honour’s observation (at [31] of the penalty judgment) that it was “difficult to perceive how such conduct can be regarded as in the best interests of the bulk of its members and the workers it supposedly represents”, characterising this as, in effect, an irrelevant and therefore forbidden consideration.
318 The Commissioner responds by pointing to the primary judge having quoted (at [5] of the penalty judgment) from the source of the principle from the Civil Penalties case relied upon by the appellants, Trade Practices Commission v CSR Ltd [1990] FCA 762; [1991] ATPR 41-076 at 52,152, and overtly referred to its application in the Civil Penalties case. The Commissioner submits that no reference was made by his Honour to retribution or rehabilitation, and that deterrence was overtly regarded as a significant factor in imposing penalties on the CFMEU: see [30]-[33] of the penalty judgment and, in particular, the references to recidivism and the failure of the prior imposition of significant penalties to deter “clearly unlawful industrial action”. The Commissioner therefore submits that there is no reason to doubt that this purpose was not also in the primary judge’s mind when it came to the individual appellants, to which may be added that each individual appellant was a union organiser or official.
319 To the Commissioner’s submissions may be added the following further indications that the primary judge clearly had the role of deterrence in mind, front and centre, when imposing all of the civil penalties:
(1) the express reference (at [6]) to specific and general deterrence when listing the matters to be taken into account, as summarised in Kelly v Fitzpatrick [2007] FCA 1080; 166 IR 14 at [14]; and
(2) the reference (at [64]), after addressing the individual appellants, to “[w]hatever further steps may be taken by the Legislature to prescribe a meaningful sanction to achieve an acknowledged existing purpose of deterrence is a matter for the Legislature to pursue” (emphasis added).
320 This ground of appeal is one of form, rather than of substance, and must be dismissed. The totality of the primary judge’s reasons leave no room to doubt that deterrence was foremost in his Honour’s mind when it came to the imposition of penalties.
Appeal ground 11 (on penalty) – asserted error in the exercise of discretion by imposing maximum penalties against the CFMEU
Appeal ground 12 (on penalty) – assertion that the penalties were manifestly excessive in respect of the nine individual appellants and the Unions
Appeal ground 13 (on penalty) – asserted error in the treatment of past contraventions as recidivism in relation to the Unions
Appeal ground 16 (on penalty) – asserted error in fixing penalty for CFMEU NSW by reference only to prior contraventions
321 The appellants characterise these four grounds of appeal as all dealing with the objective seriousness of the contraventions, affecting all of the appellants. Those grounds in the amended notice of appeal are as follows:
(1) Ground 11, concerning the use made of prior contraventions, states:
The primary judge erred in the exercise of his discretion at [33] of Parker (No 2) as to the ordering of the maximum penalties against the CFMEU.
Particulars
(i) The ordering of the maximum penalty was dependent upon a finding at [32] of Parker (No 2) that [it] is not possible to envisage worse union behaviour. This is not the test for the determination of penalty.
(ii) The primary judge was required to ensure that the penalty was not determined by the past history of the contravenor in a way that made the penalty disproportionate to the gravity of the contravention;
(iii) The primary judge was required to determine whether the ordering of the maximum penalty was appropriate as to each individual contravention.
(2) Ground 12, asserting manifest excess for all of the penalties, states:
The penalties were manifestly excessive. The penalties are set out at [8], [33], [36], [39], and [46] of Parker (No 2).
(3) Ground 13, as to the use made of recidivism, states:
The primary judge conflated recidivism at [31] of Parker (No 2) with a finding as to the conduct in this particular case at [32] of Parker (No 2) when the primary judge should have determined the objective seriousness of the matter separately to a consideration of past conduct.
(4) Ground 16, as to CFMEU NSW, states:
The primary judge erred at [35]-[36] of Parker (No 2) in determining the penalty for the CFMEU NSW by reference only to its prior contraventions.
322 These grounds must be taken to be addressing issues other than totality, for which the four principal individual appellants have failed, and the two Unions have succeeded.
323 The appellants’ complaints arising from these grounds largely turn on an asserted failure by the primary judge to address objective seriousness and, especially for the CFMEU, the application of very high penalties by reason of past conduct as a finding of character, which, unless projected into the future in the manner contemplated by the High Court in Veen v The Queen (No 2) (1988) 164 CLR 465 (Veen (No 2)) (at 477-8), was irrelevant. The appellants submit that:
(1) the character of a contravener does not determine the objective seriousness of the contravention being considered;
(2) as such, the maximum penalties should have been reserved for contraventions found to be so grave as to warrant the maximum penalty, even if worse conduct could be envisaged;
(3) his Honour erred in applying the maximum penalty to all contraventions by the CFMEU when they were not grave enough to warrant that, and were different as between each; and
(4) the penalties were manifestly excessive so as to be clearly outside the available range, being:
(a) wholly cumulative;
(b) at the maximum of the range for the CFMEU;
(c) beyond the range of any penalties previously applied to appellants with similar records of contravention; and
(d) higher than contended for by the parties (and, most relevantly, higher than contended for by the Commissioner as the regulator).
324 The Commissioner relies heavily on the substantial burden on an appellant in seeking to disturb the exercise of a sentencing-like discretion by way of the imposition of a civil penalty, requiring it to be wholly outside the range of penalty-imposition options available, such that no reasonable judge could have imposed the penalty on the given contravener in all the circumstances, citing Cahill at [51] and the Perth Airport case at [52]-[53]. The Commissioner points out that while maximum penalties are intended for cases falling within the worst category of cases, that does not mean that a lesser penalty must be imposed if it is possible to envisage a worse case: Veen (No 2) at 478.
325 The Commissioner submits that, in determining the penalty for the Unions, the primary judge had to rely on his Honour’s assessment of the objective seriousness of the conduct by the individual appellants as Union officials, employees and agents, because the Unions acted through them and because their conduct is deemed to be that of the Unions by s 793 of the Act. His Honour duly assessed the objective seriousness of the individual appellants in the penalty judgment at [24]-[27] and [37]-[53]. At [24], his Honour indicated that it was because of the seriousness of the conduct of Messrs Parker, Kera, Reeves and Collier that he was obliged to consider maximum penalties for all of them and for the Unions. His Honour knew he was required to pay “careful attention” to the maximum penalties as a yardstick, citing Markarian v The Queen [2005] HCA 25; 228 CLR 357 at [31]. Messrs Parker and Kera, as the most serious of the individual contraveners, had 90% and 80% of the maximum individual penalties imposed on them respectively.
326 The Commissioner submits that when the primary judge came to consider the position of the Unions, and especially that of the CFMEU, the primary judge correctly took into account whether they had engaged in similar previous conduct as a relevant factor that his Honour had noted at the outset of the penalty reasons at [6]. This consideration, whilst not determinative of penalty, is built on the assessment of the objective seriousness of the officials’ conduct, and the obligation on the primary judge to deter serial recidivists, consistently with the Perth Airport case at [90]-[91]. The Commissioner notes that the CFMEU’s status as a serial recidivist is not challenged by the appellants. His Honour accepted the Commissioner’s submissions, which made lengthy reference to the previous findings of the Court against the CFMEU for contraventions of the Act and related legislation, as summarised in a table to which the primary judge referred at [29] of the penalty judgment, and as to which “further illumination” was to be found in a number of prior decisions of this Court dealing with the CFMEU’s history of contraventions: see Construction, Forestry, Mining and Energy Union v Australian Building and Construction Commissioner [2016] FCAFC 184; 247 FCR 339 at [90]-[95]; the Perth Airport case at [83]-[86], and The Australian Paper Case at [31].
327 The Commissioner submits that, in giving consideration to the CFMEU’s past history of contraventions, the primary judge clearly had deterrence in mind, for example, stating at [32] that the contraventions in the present case indicated a willingness to continue to show contempt for the law and that prior penalties had failed to act as a deterrent. This indicated to his Honour that, in deciding to deliberately breach the law once again, the CFMEU’s conduct involved a case that fell into the worst category and warranted the maximum penalties, with the penalty clearly reflecting his Honour’s disapproval of the flagrant conduct in this case. The Commissioner submits that it is not an error to express such disapproval in the imposition of a severe penalty and, in this case, that was legitimately available. The Commissioner draws on longstanding authority that “[r]epeated conduct of a particular kind may lead to an identified need to provide some particularly persuasive form of deterrent against similar future misconduct”, quoting Temple v Powell [2008] FCA 714; 169 FCR 169 at [64].
328 The Commissioner points out that the primary judge found defiance of the s 418 orders by the Fair Work Commission, and took into account at [58]-[63] the significant sums available to the CFMEU, which it was accepted would be used to pay the penalties of the individual appellants. The Commissioner also notes the primary judge’s concern that the behaviour of the CFMEU indicated that it regarded penalties as the cost of doing business, a matter considered to be of importance in Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2017] FCAFC 113; 254 FCR 68 (Queensland Children’s Hospital case) at [98], [105] and [156]. The Commissioner cautions that the flexibility to be afforded to a judge considering the sanctions to be imposed in a civil penalty case should not be judged through the prism of the application of sentencing principles in the criminal law, where the liberty of persons is at stake: Civil Penalties case at [93], [101].
329 The Commissioner submits that the penalties imposed on the individual appellants were supported by due consideration of their individual conduct and circumstances. He submits that the penalties were varied appropriately according to the degree of the individual appellants’ involvement and the seriousness of their conduct. Viewed in that way, the Commissioner submits that those penalties were not so unreasonable, disproportionate or unjust as to suggest an error in the sentencing process. His Honour had in mind and took account of the adverse findings he made against Messrs Parker, Kera, Collier, Reeves and Sloane, and the significance for them of those findings with regard to penalty, referring to the liability judgment at [70]-[74] and [284] and the penalty judgment at [90]-[96].
330 The Commissioner notes that the appellants’ submissions do not point to any mitigating factors that the primary judge failed to take into account.
331 The Commissioner submits that bare comparison with the quantum of penalties imposed in other cases is not a useful guide, citing Director of Consumer Affairs Victoria v Alpha Flight Services Pty Ltd [2015] FCAFC 118 at [74]-[76].
332 Finally, in relation to ground 15, the Commissioner submits that it is an unwarranted reading of the primary judge’s reasons to assert that [35]-[36] of the penalty judgment were the only matters his Honour considered relevant to imposing a penalty on the CFMEU NSW. As that Union acted through the individual appellants, all of whom were its officials, employees, members or agents, all of the consideration given to their penalties necessarily applied to the CFMEU NSW. The Commissioner submits that it was therefore appropriate for the primary judge to take into account that Union’s lesser record of prior contraventions when considering how that affected the imposition of penalty for deterrence. However, while its record of prior contraventions was less substantial, it was still relevant that the individual appellants, through whom the CFMEU NSW acted, were the same persons who had displayed the attitude that the law could be flouted as a cost of doing business that had been of concern to his Honour. The Commissioner thus submits that, in all of the circumstances, the penalty of 75% of the maximum imposed on the CFMEU NSW was not shown to be unreasonable or unjust so as to indicate error.
333 In reply, the appellants reiterate that the key issue was not merely an assertion of excessive penalties, but, rather, an asserted and, in effect, causal failure to assess the objective seriousness of each contravention by each appellant, reserving the maximum penalty for the worst category. The appellants submit that the CFMEU should not be penalised at the maximum level when some of the individual appellants from which its liability arose did not have the maximum penalty imposed. The appellants reiterate the limited role that past contraventions can have in determining penalty.
334 The detailed submissions summarised above can be distilled into three key considerations for determination on appeal:
(1) whether the primary judge paid insufficient attention to the objective seriousness of the contraventions, most especially as to conduct attributed to the two Unions;
(2) whether, as a result or independently, the past contraventions were misused by his Honour so as to sanction past contraventions afresh, rather than being properly confined to the instant contraventions;
(3) whether, additionally to, or independently of, the question of overt error being established, the penalties imposed were, taken holistically, manifestly excessive in all the circumstances.
335 Turning first to the primary judge’s consideration of objective seriousness, a fundamental problem with the appellants’ case is that it treats the penalty judgment as though it was the single output of a penalty hearing that flowed from a case in which liability was not contested. When those are the circumstances, the sole judgment must necessarily reflect the totality of the judge’s reasoning, or at least all the factors that contributed in a material way to the result, prior to the application of totality reasoning. That is not this case. His Honour presided over a 10-day trial that took place in July, August and December 2016. That was followed by a very detailed 174-page liability judgment, canvassing what transpired over the two key days, plus the lead up to those days. That judgment did not go all one way. While the Commissioner substantially succeeded, he also suffered significant setbacks.
336 The primary judge considered the facts and circumstances carefully, closely and in considerable detail in the liability judgment. There was then a separate penalty hearing, preceded by detailed written submissions. The penalty judgment expressly and contextually refers to the liability judgment, both at the outset and in numerous places throughout. The two judgments are to be read together when assessing the penalties imposed, noting that the liability judgment describes the conduct and the conclusions his Honour reached as to the conduct in considerable detail.
337 A careful reading of the penalty judgment reveals that his Honour was frequently referring in a summary way to the conclusions earlier reached in the liability judgment, albeit mainly when addressing the conduct of the individual appellants. His Honour went so far as to make certain corrections to the findings made in the liability judgment, reinforcing how prominent that was in the penalty assessment process.
338 When all of the foregoing is considered, it was not necessary for the primary judge to refer overtly to the objective seriousness of the contravening conduct, although the absence of such overt findings makes the consideration of manifest excess in the absence of overt error a more open question. None-the-less, an overt and free-standing statement of objective seriousness may be no more than a convenient general description of the content of what must be considered, and is not a label the absence of which can, without more, indicate that this was not considered. The appellants’ submission to the effect that the objective seriousness of the contravening conduct was overlooked, or otherwise not evaluated, cannot be accepted when due regard is had to the totality of the trial process, and the liability and penalty judgments as a whole. Whether the end result properly reflects the objective seriousness of what took place therefore falls for assessment under the third consideration of manifest excess in the absence of overt error. The live issue then is not whether objective seriousness was not taken into account, but whether the view taken of it overwhelmed the exercise of the discretion.
339 As to the second consideration, being the use that was put by the primary judge to prior contraventions, especially in respect of the CFMEU, a court imposing a civil penalty is entitled to have regard to such prior contraventions in the exercise of the discretion, but that does not permit such a history to be given such weight as to lead to the imposition of a penalty that is disproportionate to the gravity of the contravention that is being considered: Veen (No 2) at 477. That is because a court should impose a penalty that is proportionate to the gravity of the contravention being sanctioned, and no more. This is also supported by s 546(1) of the Act, which expressly provides for what would otherwise likely be implicit, namely, for the Court to fix an “appropriate” penalty for a contravention. A civil penalty that is not proportionate cannot be regarded as appropriate, and therefore cannot meet that statutory requirement.
340 The Full Court in Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (Non-Indemnification Personal Payment Case) [2018] FCAFC 97 observed (at [22]):
The overwhelming importance of deterrence as the protective purpose of the penalty does not exclude the need to determine a penalty which is proportionate to the contravening conduct. The history of contravention is to be taken into account in fixing the proper level of penalty for the proportionate response to the contravention in question. Proportionality has within it the need to characterise the seriousness of the contravention. Proportionality of penal response to a contravention assessed by reference to its seriousness and gravity is an essential characteristic of the application of the statute. The penal response is for that contravention, not earlier contraventions: Veen v The Queen [No 2] [1988] HCA 14; 164 CLR 465 at 477-478. Prior contraventions may reveal an apparent disregard for the Act and the need for deterrence by a penalty at a level appropriate to achieve that objective. It is to be borne in mind, however, that it is for the conduct in question that the penalty is imposed, not for prior conduct.
341 Thus, the role of any past contraventions is to be no more than a prism through which to view the instant contravention. This enables a court to assess whether, for example, the instant contravention is an “uncharacteristic aberration”, or whether the contravener has, by the instant conduct, manifested “a continuing attitude of disobedience of the law”. If the latter, as is clearly available to be concluded in this case, the heightened need for deterrence may indicate that a more severe penalty is warranted for the instant contravention. Nonetheless, that penalty must still fall within the applicable range that is otherwise considered appropriate for that contravention. If that is not carefully observed, the contravener may suffer the fate of being sanctioned anew for past contraventions, as the above quote from Veen (No 2) makes clear is not permitted.
342 Veen (No 2) also provides valuable guidance as to the role of the maximum penalty. The High Court’s observations at 478 make it clear that the maximum penalty is reserved for contraventions falling within the worst category of cases for which that penalty is prescribed. This does not require characterisation as the worst possible case. However, a case is not in the worst category merely by reason that the contravener has a history of prior contraventions, although that history may assist in the proper characterisation of the instant contravention. Considerable caution may be required to avoid blurring this distinction. This is especially so when, as in this case, past contraventions are many in number, extend over a protracted period of time and the legislature has not seen fit to provide greater penalties for second and subsequent contraventions.
343 Applying the foregoing, several aspects of the primary judge’s comments about prior contraventions by the CFMEU require careful consideration. His Honour carefully and extensively considered the conduct of the nine individual appellants, and especially that of the four principal individual appellants, Messrs Parker, Kera, Reeves and Collier, whose conduct gave rise to the attribution of liability on the part of both Unions, making extensive findings of fact and findings of contravention in the liability judgment in relation to each of the individual appellants. The penalties imposed on the nine individual appellants for the s 417 contraventions had quite a wide range of differentiation, ranging from $3,000 to $9,000 out of a maximum of $10,200. The penalties imposed on the four individual appellants for the coercion contraventions (ss 348 and 355) had a lesser degree of differentiation, ranging from $7,000 to $9,200. The primary judge, as a result of his Honour’s factual findings on liability, plainly considered that some contraventions were more serious than others. His Honour varied the penalties imposed on the individual appellants accordingly.
344 When it came to attribution, with the exception of the s 50 contravention where the CFMEU but not the CFMEU NSW was liable, the attributed conduct giving rise to liability, and thus penalty, was exactly the same. The starting point for the imposition of penalties upon the two Unions was therefore that the basis for attribution (apart from s 50) was the same in the hands of each Union; but the conduct being attributed to each Union in fact differed according to the differential conduct of the individual appellants. These points of difference were important; if they were not to carry through to the penalties imposed for each contravention by each Union, that needed to be explained. Yet, as will be seen, the only identified basis for differentiation that was applied was the difference in the past contravening history of each Union.
345 Given that the Unions had no capacity to act except through such natural persons, their contravening conduct necessarily did not receive separate consideration at the liability stage beyond the findings made as to the capacity in which the individual appellants were acting. Rather, his Honour, at [537] of the liability judgment made findings of contravention against the CFMEU in relation to the s 50 contravention; and at [540] of the liability judgment made attributed findings of contravention against both the CFMEU and CFMEU NSW. When it came to the evaluation of the conduct of the two Unions for the purpose of imposing penalties upon them, his Honour’s comments as relevant to the conduct of those Unions were either cast at a level as to what had taken place overall, such as the impact of the strike on loss or damage, or were of an evaluative kind. As to that evaluative exercise, his Honour said (in the penalty judgment at [29]-[36]) the following (emphasis added):
In very summary form, the CFMEU has been found in the present proceeding to have contravened ss 50, 348, 355 and 417 of the Fair Work Act. A separate Table prepared by the Commission in respect to contraventions by the Respondents of the Fair Work Act, the Building and Construction Industry Improvement Act 2005 (Cth) and/or the Workplace Relations Act 1996 (Cth) (the “Workplace Relations Act”) record over 100 occasions upon which contraventions have been found and/or penalties have been imposed on the CFMEU.
Founded upon this chronology, it is concluded that the CFMEU has long demonstrated by its conduct that it pays but little regard to compliance with the law and indeed has repeatedly sought to place itself above the law.
The CFMEU is to be regarded as a “recidivist” offender: cf. Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2015] FCA 226 at [63] per Tracey J. Its conduct has only gone down-hill since his Honour made those observations. It is difficult, if not impossible, to envisage any worse conduct than that pursued by the CFMEU. The CFMEU assumes a prominent role in the industrial affairs of this country and has consistently exhibited a contempt for compliance with the law. The conduct of its officers and employees has consistently shown a total contempt for the rights of occupiers and a total contempt for the constraints imposed by the law. It is difficult to perceive how such conduct can be regarded as in the best interests of the bulk of its members and the workers it supposedly represents. Such conduct may promote the CFMEU as a “militant” union. But the constraints imposed by the law apply to all – including the CFMEU.
It is, with respect, not possible to envisage worse union behaviour. The prior imposition of penalties – some nearing the maximum – against the CFMEU has not deterred it from engaging in clearly unlawful industrial action. Indeed, the conduct for which the CFMEU assumes liability in the present proceeding shows a further and serious contempt for the law. The CFMEU’s conduct exposes a cavalier disregard for the prior penalties imposed by this Court and exposes the fact that such prior impositions of penalties have failed to act as a deterrent against further unlawful industrial action.
The maximum penalty should thus be imposed upon the CFMEU. In the absence of legislative action, it may (regrettably) be expected that even penalties imposed at the maximum now permitted will not act as a deterrent.
The conduct of the CFMEU NSW calls for different considerations. As correctly submitted on behalf of the Respondents, “the contraventions of the federal union should not be visited upon the state union or the personal respondents” as they “all have separate identities”.
A table helpfully included in the Supplemental Submissions in Reply filed by the Respondents on 14 August 2017 identifies 9 occasions upon which the CFMEU NSW has been exposed to penalties, over a period from 2004 to 2011. Its conduct in the past has, accordingly, not attracted findings as to contraventions or resulted in penalties imposed to anywhere near the same extent as the CFMEU. Its conduct nevertheless remains far from satisfactory. But such conduct calls for less than the maximum penalty.
In the circumstances, it is considered that a penalty in the amount of 75% of the maximum should be imposed on the CFMEU NSW.
346 As already noted above, in order to impose the maximum penalty for a civil penalty contravention, it is not necessary that it be more than in the worst category. Yet his Honour went further and said in relation to the conduct attributed to the CFMEU that it was “difficult, if not impossible, to envisage any worse conduct” and that “it was not possible to envisage worse union behaviour”, for which the maximum penalty should apply for each attributed contravention. This was despite the attributed conduct being of differential seriousness as reflected in the different penalties imposed on the individual appellants. Except for the s 50 contravention which only applied to the CFMEU, his Honour described exactly the same attributed conduct in the hands of the CFMEU NSW as being conduct that deserved the lesser characterisation of being “far from satisfactory”, and called for “less than the maximum penalty”, being 75% of the maximum. This was again despite each attributed contravention being of differential seriousness as reflected in the different penalties imposed on the individual appellants.
347 This approach of no differential between the attributed conduct despite there being differential seriousness in the hands of the individual appellants, and a substantial differential as between the two Unions despite the attribution as between them being the same, the only material difference between them being their past contravening history, entails:
(1) treating attributed conduct on the part of the individual appellants, which was at least to some degree different, as though it was the same; and
(2) treating attributed conduct in the hands of the two Unions, which was by precisely the same process of attribution and therefore was relevantly the same, as though it was different in a manner that went over and above a proper regard to different contravening histories.
348 As the above discussion of Veen No. 2 demonstrates, while the role of past conduct informs the need for deterrence, that cannot be used to change the character of the instant contravention. Without an explanation as to how it was possible to treat attributed contraventions that were the same in the hands of the Unions differently, and attributed contraventions that were different as to their source in the same way, it is impossible to avoid the conclusion that past contraventions have been inadvertently used by his Honour in a way that goes beyond a prism through which to view the instant contraventions. Thus in this way, which is hard to quantify, the principles in Veen (No 2) have been breached. That error in approach means that the exercise of the discretion by imposing uniform maximum penalties against the CFMEU has miscarried as a matter of process, rather than necessarily the result. Thus ground 11 should succeed, and upon that basis, as for totality, the penalties imposed on the two Unions should be set aside and the penalty imposition exercise for each carried out afresh.
349 The result of manifest excess beyond the totality findings already made out is not established. Ground 12 does not succeed.
350 Nor was there any separate error in finding that past contraventions were reflective of recidivism in the hands of the CFMEU. No other rational conclusion can be reached in light of that Union’s contravening history, at least in the construction industry. However that only heightens the need for caution in the application of Veen (No 2). No such finding of recidivism was made in respect of the CFMEU NSW. Ground 13 must fail.
351 The penalty imposed on the CFMEU NSW was not fixed by reference only to prior contraventions. It was fixed by the attribution of responsibility for the conduct of the individual appellants who were themselves found to have contravened. Ground 16 must fail.
Appeal ground 14 (on penalty) – asserted error in relying on the source of funding for penalties when fixing the quantum of penalty for the nine individual appellants and the Unions
352 Ground 14 of the amended notice of appeal was abandoned following the decision of the High Court in Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2018] HCA 3; 262 CLR 157.
Appeal ground 15 (on penalty) – asserted error in the exercise of discretion by reference to a percentage of the maximum penalty available against CFMEU NSW
353 Ground 15 of the amended notice of appeal on parity states:
The primary judge erred in the exercise of his discretion at [36] of Parker (No 2) by determining penalty by reference to a percentage of 75% of the maximum penalty available against the CFMEU NSW.
Particulars
(i) The primary judge erred in not assessing the principles of parity between the CFMEU and the CFMEU NSW.
(ii) The capacity of the CFMEU NSW to operate in the federal sphere was necessarily limited;
(iii) The CFMEU NSW did not act independently of the CFMEU;
(iv) The CFMEU NSW did not provide different instructions to the individual appellants from those provided by the CFMEU;
(v) Every individual appellant was an officer of both the CFMEU and the CFMEU NSW;
(vi) The finding was arbitrary and the primary judge provided no reasoning for the conclusion.
354 The substance of the appellants’ complaint is that the primary judge treated the CFMEU NSW as if it were as equally culpable as the CFMEU, and then reduced its penalty by 25 per cent by reason of its substantially better record of contravention, including its avoidance of penalties since 2011. This is argued to be a failure by his Honour to have regard to parity as between the two Unions. The appellants rely upon the fact that the CFMEU NSW is a union registered under the Industrial Relations Act 1996 (NSW), with a limited role that has arguably been confined since the introduction of the WorkChoices legislation in 2005, which amended the Workplace Relations Act 1996 (Cth), to investigating and enforcing state occupational health and safety legislation. Such matters were not the subject of this case. The appellants submit that the CFMEU NSW performed no action independent of the CFMEU and provided no directions to its officers and members that were different from those provided by the CFMEU. As such, its role was nominal and no more than a nominal penalty was appropriate.
355 The Commissioner counters by submitting that the conduct of the individual appellants was found to have been engaged in by both the Union appellants, that Union officials are taken to have acted in accordance with the policies of the Unions, and that the Unions must therefore assume responsibility for their acts. The task of the primary judge was therefore to attribute to each of the Unions the responsibility that each must bear for those who acted on their behalf and in their scope of employment by the Unions, citing Darlaston v Parker (No 2) [2010] FCA 1382; 200 IR 353 at [53]-[56] (a prior decision of the primary judge). The Commissioner effectively asserts that the appellants now attempt to run a case on appeal that was not run below. That is because the appellants assertedly did not adduce any evidence at trial of the particulars to ground 15 now relied upon, which suggest that if parity is about applying treatment of like contraveners in a like manner, then the CFMEU NSW should be penalised in the same way as the CFMEU, citing Postiglione v The Queen (1997) 189 CLR 295 at 301-302. However, the Commissioner submits that the two Unions were not entirely alike, with the primary judge being aware, for example, that the CFMEU NSW was not found responsible for the contravention of s 50. The Commissioner submits that his Honour applied the relevant penalty principles in fixing the CFMEU NSW’s penalty at 75% of that of the CFMEU, with the appellants’ apparent complaint being the weight given to the relevantly different situation of the CFMEU NSW.
356 While at first blush the penalty imposed on the CFMEU NSW does appear harsh, the appellants have not demonstrated error of the kind that is necessary to permit intervention upon this basis, independently of the intervention that will now take place upon the basis of totality. The outcome complained of is a direct consequence of the legal structure that the CFMEU chose to adopt, the officials it chose to have appointed jointly with the CFMEU, the effect of s 793 and the case that it ran on penalty. This ground of appeal must therefore fail.
REIMPOSITION OF PENALTIES UPON THE UNIONS ON TOTALITY GROUNDS
357 It is important to remember at the outset that the totality adjustment exercise now to be carried out does not entail any finding that individual sanctions imposed, or to be imposed, are in isolation excessive, let alone manifestly so. Rather, it is directed to the overall impact of the accumulated effect of otherwise acceptable penalties to ensure that the whole is not greater than the sum of the parts. In criminal sentencing when gaol terms are involved, that can be achieved by way of a degree of concurrency, so that an offender is serving all or part of two more sentences at the same time, reducing the impact of what might otherwise be perfectly permissible cumulative sentences for conduct that is otherwise separate and distinct.
358 Because of the nature of the totality exercise, especially in the context of appellate intervention adjustment for totality, it can be acceptable for this to be carried out in a somewhat mathematical way in order to arrive at a just result. In that way, the same effect may be achieved as partial concurrency of gaol terms. It is ultimately an impressionistic exercise, akin to the instinctive synthesis final stage of criminal sentencing. In this case, this is done in lieu of, for example, attempting to address the error arising from the use of the prior contraventions, on any view a very difficult exercise for an appeal court to carry out in a manner that genuinely reflects the nuanced differences between the attributed contraventions of the nine individual appellants.
359 Dealing first with the maximum penalty of $51,000 imposed upon the CFMEU in respect of the s 50 contravention via the eight individual appellants apart from Mr Reeves, once it is realised that all eight bases for direct liability have been treated by the primary judge as a single contravention, there is an insufficient basis to intervene. There was a reasonable measure of leniency in proceeding in that way. The s 50 penalty imposed on the CFMEU of $51,000 should not be disturbed.
360 Turning then to the remaining 25 contraventions by the CFMEU and the 25 contraventions by the CFMEU NSW, across ss 348, 355 and 417 of the Act by way of totality adjustment, both sets of 25 contraventions should simply be reduced to some lesser percentage of the maximum to account for the overlap of the attributive conduct of the individual appellants. While it would be possible to reduce the percentage differentially as between the two days and/or differentially as between s 348 and s 355 on the one hand, and s 417 on the other, it is not necessary to make it that complicated. Totality is all about the end result, with the reduced individual penalties reflecting that holistic view, rather than the appropriateness of those individual penalties taken out of that context.
361 An appropriate course is to consider and thereby to evaluate a number of possible reductions to the penalties imposed on the two Unions as an exercise in totality adjustment:
(1) reducing the 100% maximum for each of the remaining 25 contraventions by the CFMEU to somewhere between 50% and 90% of the maximum for each contravention, such that the overall penalty for these contraventions (that is, apart from s 50) would be reduced from $1,275,000 to a figure between $637,500 to $1,147,500, with an intermediate figure of $956,250 (75%);
(2) reducing the 75% maximum for each of the 25 contraventions by the CFMEU NSW to somewhere between 20% and 60% of the maximum for each contravention, such that the overall penalty imposed would drop from $956,250 to a figure between $255,000 to $765,000, with a midpoint of $510,000 (40%);
(3) thereby making the aggregate penalty for the 25 contraventions across the two Unions drop from $2,231,250 to between $892,500 and $1,912,500.
362 While the lower end of these ranges is an excessive downward adjustment having regard to the factual findings of the primary judge, which in the greater part have not been challenged, the upper end does not entail a sufficient adjustment when the conduct is considered globally with a weather eye on deterrence. This was large scale, planned and skilfully executed illegal industrial activity, carried out by combined actions to maximise the prospects of success.
363 The aspect of Veen (No 2) which acknowledges that intractable behaviour may require a greater degree of deterrence is more pertinent for the CFMEU because of its more substantial contravening history. This history casts a much more adverse view of the contraventions in its hands than in the hands of the CFMEU NSW. When the greater need for deterrence arising from the instant contravening is properly considered, there is no element of imposing new sanctions for past contraventions. Instead, the prism of the past informs acutely the view to be taken of the conduct in contemplation. It was this sort of reasoning that enabled Mr Veen to have a life sentence for manslaughter upheld, despite having earlier received a sentence from the High Court of 12 years’ imprisonment for a substantially similar prior act of manslaughter, albeit with protection of the public rather than deterrence as the governing consideration, and an absence of provocation for the second offence.
364 This leads to the conclusion that a reduction for the CFMEU from 100% to 75% of the maximum penalty for each of the 25 contraventions to $956,250, and a reduction for the CFMEU NSW from 75% to 40% of the maximum penalty for each of the 25 contraventions to $510,000, produces a just, parity influenced, result. The combined total of $1,466,250 will also deliver a significant measure of general deterrence.
365 The penalties both retained and freshly imposed will be as follows:
1st day (24 July 2014) | 2nd day (25 July 2015) | s.417 | s.50 | Total | |||
s.348 | s.355 | s.348 | s.355 | ||||
CFMEU | $51,000 x 4 x 75% = $153,000 | $51,000 x 4 x 75% = $153,000 | $51,000 x 4 x 75% = $153,000 | $51,000 x 4 x 75% = $153,000 | $51,000 x 9 x 75% = $344,250 | $51,000 | $1,007,250 |
CFMEU NSW | $51,000 x 4 x 40% = $81,600 | $51,000 x 4 x 40% = $81,600 | $51,000 x 4 x 40% = $81,600 | $51,000 x 4 x 40% = $81,600 | $51,000 x 9 x 40% = $183,600 | $510,000 | |
Mr Parker | $9,200 | $9,200 | $9,000 | $9,000 | $9,000 | $45,400 | |
Mr Kera | $8,250 | $8,250 | $8,250 | $8,250 | $8,250 | $41,250 | |
Mr Reeves | $7,000 | $7,000 | $7,500 | $7,500 | $7,000 | $5,000 | $41,000 |
Mr Collier | $8,000 | $8,000 | $8,200 | $8,200 | $8,000 | $40,400 | |
Mr Michael Greenfield | $3,000 | $3,000 | |||||
Mr Darren Greenfield | $5,000 | $5,000 | |||||
Mr Sloane | $5,500 | $5,500 | |||||
Mr Taylor | $4,500 | $4,500 | |||||
Mr Auimatagi | $3,000 | $3,000 | |||||
Overall total: | $1,706,300 | ||||||
Appeal ground 19 (on publication orders) – asserted error in finding that s 545 of the Act was a source of power to make a publication order in relation to the nine individual appellants and the Unions
Notice of contention ground 4 (related to appeal ground 19) – whether if s 545 of the Act was not a sufficient source of power to make the publication order, s 23 of the Federal Court of Australia Act 1976 (Cth) did provide such power
366 Ground 19 of the amended notice of appeal states:
The primary judge erred in finding at [78] and [79] of Parker (No 2) that s 545 of the FW Act gave a source of power to make a publication order.
367 Ground 4 of the Commissioner’s notice of contention states:
The primary judge’s findings at paragraphs [78] and [79] of the 13 September 2017 judgment that the Court had power to make the publication orders should be affirmed on the ground that if section 545(1) did not provide that power, section 23 of the Federal Court of Australia Act 1976 (Cth) did provide such power.
368 The primary judge expressly said of the publication order that his Honour made that it was intended to serve the purpose of deterrence and, perhaps incidentally, a separate educative purpose in relation to members of the CFMEU, the public and the building industry more generally: see penalty judgment at [81]. A little earlier in his Honour’s penalty reasons (at [79]), his Honour identified the source of the power to make the order as being s 545 of the Act and, if necessary, s 23 of the Federal Court of Australia Act 1976 (Cth).
369 The appellants focus on his Honour’s primary reliance on s 545, and the decision of the High Court in Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2018] HCA 3; 262 CLR 157 (Section 545 Powers Case) at [23], to argue that the provision is not directed to the subject of penalties, and at [25] of that decision, to argue that the terms of s 545(2) were directed to preventing contraventions or addressing or remedying the effects of a contravention, including compensation. The appellants also rely upon the Chief Justice’s additional (minority) conclusion that s 545 was not directed to deterrence, agreeing that it only supported the making of preventative, remedial or compensatory orders. The appellants therefore assert that there was no power to make the order and that it should therefore be set aside.
370 The Commissioner necessarily accepts the limitation imposed by the High Court on the operation of s 545 in the Section 545 Powers Case, but seeks to sidestep it in two ways. The first is to characterise the prevention of contraventions as being, in substance, the same as deterrence. The Commissioner submits that the limitation imposed on s 545 was a denial by the High Court that the power is available for the imposition of penalties, but that a publication order is not penal. The Commissioner submits that the objective that the primary judge had in mind was “protective deterrence”.
371 The second sidestep by the Commissioner is a reliance on the alternative source of power in s 23 of the Federal Court of Australia Act, either because that was adverted to by the primary judge, or by reason of ground of contention 4. The appellants contest the availability of s 23 as a source of power, but do not adequately explain why the broad scope of that power cannot be brought to bear so as to make a publication order. The terms of s 23, whilst not at large, are substantially unfettered in relation to matters in which this Court has jurisdiction, as the Court thinks appropriate. In those circumstances, it is sufficient to source the power to make the publication order in s 23, and therefore to dismiss this ground of appeal based on the Commissioner’s notice of contention. In those circumstances it is neither necessary, nor desirable, to decide whether s 545 would have remained a sufficient source of power, not least because the reasons for making the order would need to be recast by reference to the objectives approved of by the High Court of being preventative or perhaps remedial orders.
Appeal ground 20 (on publication orders) – asserted error in basis for making publication order in relation to the nine individual appellants and the Unions
Appeal ground 22 (on publication orders) – asserted error in making a publication order in relation to the nine individual appellants and the Unions so long after the events
372 Ground 20 of the amended notice of appeal states:
The primary judge erred in finding at [75] and [76] of Parker (No 2) that the purpose of better informing members of the CFMEU as to how the fees paid by its members were being expended was a basis for the making of a publication order.
373 Ground 22 of the amended notice of appeal states:
The primary judge erred in the exercise of his discretion in making a publication order so long after the event. There was no utility in making the orders at such a late stage and any such orders would only serve as instruments of embarrassment in circumstances where the conduct was not continuing and where the publication did not rectify the contravention: see Construction, Forestry, Mining and Energy Union v Hadgkiss [2009] FCAFC 17 (26 February 2009), 174 FCR 237 at [104], [105], [159].
374 These grounds are advanced upon the alternative basis that even if there was power to make the publication order, there was either no proper basis for making it, or the events to which it would relate were by then too stale as to justify the order.
375 The appellants’ first objection via ground 20 is an assertion that the reasons given by the primary judge were not relevant considerations in the sense of being appropriate to take into account, without going so far as to assert that they are irrelevant in the sense of being, as matter of statutory construction, forbidden. The stated secondary basis for making the orders was in truth the primary basis, being that of a separate educative purpose in relation to members of the CFMEU, the public and the building industry more generally. It was only through that pathway that the stated primary purpose of deterrence was able to be advanced; there was no stand-alone basis upon which the orders could deter.
376 Even with the wide powers available under s 23, due and primary regard should be had to the specific legislation giving rise to the seeking of the order in the first place. That is not to fetter the breadth of the power in s 23, but rather to appropriately confine and restrain its exercise. Section 23, even though available as a source of power, should not lightly be used to bypass the limitation of the specific statutory power available. That is not to say that the wider power should never be used in that way, but rather that to do so requires proper justification, especially in light of the High Court’s decision in the Section 545 Powers Case. Reasons need to be given to bypass specific limitations of that kind. Of course, the primary judge cannot be criticised for failing to consider a limitation which did not exist until described by the High Court, at least not in those terms.
377 Given that the ground has shifted in such an important way, with the benefit of the Section 545 Powers Case it may be seen that the exercise of the power has miscarried. The order should be set aside. In those circumstances it is not necessary to consider the alternative utility argument raised by ground 22, cast in terms of the circumstances that existed at the time that the primary judge made the order. Rather, it can be considered in the context of the fresh exercise of discretion.
378 The appellants’ argument, recast in terms of the fresh exercise of discretion, asserts that there is no utility in making the publication order now, with the events having occurred so many years ago. Against that, the Commissioner’s at least implicit argument is that the conduct of the CFMEU has continued, and numerous decisions of this Court have indicated that penalties alone, even very severe penalties, have not been effective in having a readily measurable effect. On the Commissioner’s argument, while the conduct may now be stale, the penalties that will have to be paid as a result of that conduct will occur in the immediate future, and thus be fresh and not stale. Given that the reasons of this Court are publically and easily available, the members of the CFMEU who are interested will have no difficulty in obtaining a copy and can be as well-informed as any publication order will achieve. In those circumstances, it is difficult to see what real or substantial additional deterrent value the publication order would provide beyond the fact of the penalties being imposed and being required to be paid. This is quite unlike a case in which a regulator is concerned to ensure that members of the public who might otherwise never chance upon a particular decision of this Court of potential importance to them in their capacity as, for example, consumers of goods or services the subject of the decision, orders and declarations made are informed of the existence and content of the case.
379 The appellants have succeeded in having the publication order set aside. While such an order may be appropriate in a future case in which either s 545 is squarely sought to be engaged with the limitations properly addressed, or a sound basis for going beyond s 545 and exercising the wider power under s 23 is made out, no such sufficient basis has been put before the Court. Accordingly, no replacement publication order should be made.
Appeal ground 21 (on publication orders) – asserted error in finding there was a sufficient evidentiary basis for making the publication order and in drafting that order in relation to the nine individual appellants and the Unions
380 Ground 21 of the amended notice of appeal states:
The primary judge erred in rejecting the submissions that there was not a sufficient evidentiary basis for the making of the order. The primary judge erred when drafting the publication order:
(i) in finding that Kera abused ABCC inspectors;
(ii) in finding that Parker, Kera and Michael Greenfield continued to urge workers to take unlawful industrial action on 25 July;
(iii) in repeating the other errors set out in this notice of appeal at Grounds 1 - 18.
381 This ground is concerned with factual errors in the publication orders, certain of those errors being accepted by the Commissioner. This is not a matter that would independently warrant the orders being set aside, as opposed to varied. This ground should be dismissed.
382 The parties are to furnish agreed or competing draft orders to give effect to these reasons within 14 days.
I certify that the preceding three hundred and eighty-two (382) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Besanko and Bromwich. |
Associate:
REASONS FOR JUDGMENT
REEVES J:
383 I have had the advantage of reading the reasons for judgment of Besanko and Bromwich JJ. I am in agreement with their Honours’ reasons and the conclusions they have reached. I wish only to add two observations with respect to the penalty orders they have proposed.
384 First, none of the appellants’ grounds of appeal on liability sought to challenge the primary judge’s finding that the conduct of the individual appellants attributed to the two union appellants under s 793 of the Act did not result in them being liable for each of the contraventions concerned. Secondly, while the appellants’ grounds of appeal on penalty did raise course of conduct and totality arguments in respect of the penalties imposed as between the individual appellants and the two union appellants (grounds of appeal 9 and 17), they did not argue that any distinction should be drawn between the various contraventions for which the union appellants were held liable, based on differences in the nature of the conduct of the individual appellants which conduct was attributed to those two appellants.
385 In the absence of these arguments being advanced, I also agree with the penalty orders proposed by their Honours.
I certify that the preceding three (3) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Reeves. |
Associate:
Dated: 4 April 2019
NSD 2227 of 2017 | |
[There is no fourth appellant] | |
Fifth Appellant: | MICHAEL GREENFIELD |
Sixth Appellant: | LUKE COLLIER |
Seventh Appellant: | DARREN GREENFIELD |
Eighth Appellant: | ANTHONY SLOANE |
Ninth Appellant: | DARREN TAYLOR |
Tenth Appellant: | RICHARD AUIMATAGI |
Eleventh Appellant: | CONSTRUCTION, FORESTRY, MARITIME, MINING & ENERGY UNION |
Twelfth Appellant: | CONSTRUCTION, FORESTRY, MARITIME, MINING & ENERGY UNION (NEW SOUTH WALES BRANCH) |
Cross-Respondents | |
Fourth Cross-Respondent: | [There is no fourth Cross-Respondent] |
Fifth Cross-Respondent: | MICHAEL GREENFIELD |
Sixth Cross-Respondent: | LUKE COLLIER |
Seventh Cross-Respondent: | DARREN GREENFIELD |
Eighth Cross-Respondent: | ANTHONY SLOANE |
Ninth Cross-Respondent: | DARREN TAYLOR |
Tenth Cross-Respondent: | RICHARD AUIMATAGI |
Eleventh Cross-Respondent: | CONSTRUCTION, FORESTRY, MARITIME, MINING & ENERGY UNION |
Twelfth Cross-Respondent: | CONSTRUCTION, FORESTRY, MARITIME, MINING & ENERGY UNION (NEW SOUTH WALES BRANCH) |
