FEDERAL COURT OF AUSTRALIA
Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union (No 2) [2016] FCA 607
ORDERS
DIRECTOR OF THE FAIR WORK BUILDING INDUSTRY INSPECTORATE Applicant | ||
AND: | CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION First Respondent AARON CARTLEDGE Second Respondent MICHAEL MCDERMOTT Third Respondent | |
DATE OF ORDER: |
THE COURT ORDERS THAT:
1. The applicant file and serve within seven days draft minutes of order which reflect the conclusions in these reasons and such other orders as the applicant contends should now be made.
2. The proceeding be adjourned to a date to be fixed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
BESANKO J:
Introduction
1 This is a proceeding by the Director of the Fair Work Building Industry Inspectorate (“the applicant”) against the Construction, Forestry, Mining and Energy Union (“the Union”) and two officials and officers of the Union, Mr Aaron Cartledge and Mr Michael McDermott. The relief sought by the applicant consists of a declaration pursuant to subs 545(1) of the Fair Work Act 2009 (Cth) (“FW Act”) that on 22 November 2013, the Union contravened s 343 of the FW Act because of action taken by Mr Cartledge and because of action taken by Mr McDermott. The applicant also seeks a declaration that on 22 November 2013, Mr Cartledge contravened s 343 of the FW Act directly or as a person involved in the contravention by Mr McDermott within s 550 of the FW Act, and a declaration that on 22 November 2013, Mr McDermott contravened s 343 of the FW Act directly or as a person involved in the contravention by Mr Cartledge within s 550 of the FW Act. The applicant also seeks orders for the imposition of pecuniary penalties in respect of the contraventions, and orders that the pecuniary penalties be paid to the Commonwealth under s 546 of the FW Act.
2 Section 343 is a civil remedy provision and is in the following terms:
343 Coercion
(1) 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 third person, to:
(a) exercise or not exercise, or propose to exercise or not exercise, a workplace right; or
(b) exercise, or propose to exercise, a workplace right in a particular way.
(2) Subsection (1) does not apply to protected industrial action.
3 The applicant has been appointed under s 15 of the Fair Work (Building Industry) Act 2012 (Cth) and is an inspector who has standing to bring the proceeding under s 539 of the FW Act. The Union is an industrial association within s 12 of the FW Act and a building association and, therefore, a building industry participant within the meaning of subs 4(1) of the Fair Work (Building Industry) Act. The Union employs Mr McDermott, but not Mr Cartledge. In addition to being officials and officers of the Union, and in Mr McDermott’s case an employee of the Union, Mr Cartledge and Mr McDermott were at relevant times building industry participants within subs 4(1) of the Fair Work (Building Industry) Act.
4 It is common ground between the parties that on 22 November 2013, there was a meeting at a building construction site located at the junction of West Terrace, North Terrace and Port Road, Adelaide, South Australia which Mr Cartledge and Mr McDermott attended. The building being constructed at the site was the new Royal Adelaide Hospital. It is also common ground that the joint venture partners for the construction of the new Royal Adelaide Hospital at the site were Hansen Yuncken Pty Ltd and Leighton Contractors Pty Limited. I will refer to the joint venture as HYLC. Certain events which occurred at the meeting on 22 November 2013 are in dispute.
5 The applicant’s case is that Mr Cartledge and Mr McDermott made verbal threats at the meeting to representatives of HYLC that they would organise or take industrial action and/or other action against HYLC. The particulars of the threats are that Mr Cartledge made a threat in saying words to the effect that there would be industrial action on HYLC’s jobs if HYLC took steps to enforce the order made by Senior Deputy President O’Callaghan of the Fair Work Commission on 26 September 2013, the terms of which are as corrected by the correction order made on 27 September 2013, in action number C2013/1442 (“the FWC Order”). Mr Cartledge made a threat in saying words to the effect that “all hell would break loose” and that the Union would “take action on a national scale” if HYLC took steps to enforce the FWC Order. As far as Mr McDermott is concerned, the applicant’s case is that he made a threat in saying words to the effect that “there would be industrial action on HYLC’s jobs” if HYLC took steps to enforce the FWC Order and that there would be Armageddon if HYLC took steps to enforce the FWC Order.
6 The applicant’s case is that the threats were made with the intent to coerce HYLC through its employees who were present at the meeting, not to exercise a workplace right within the meaning of s 341 of the FW Act, namely the right to initiate or participate in a process or proceeding to enforce the FWC Order.
7 The applicant’s case as to the involvement within the terms of s 550 of the FW Act of Mr Cartledge and Mr McDermott was put on the basis that each of them aided or abetted the contravention of the other (subs 550(2)(a) of the FW Act) or were knowingly concerned in or party to the contravention of the other (subs 550(2)(c) of the FW Act).
8 The respondents deny that the threats were made. They also plead (among other defences) that there could be no intent to coerce the other persons not to exercise a workplace right because there was no workplace right. They plead that the FWC Order is not a valid order. It is convenient to consider that issue first.
The FWC Order
9 On 10 September 2013, HYLC (both the joint venture and the individual companies) made an application to the Fair Work Commission (“FWC”) for an order under subs 418(1) of the FW Act against 16 employees who worked on the site. That subsection provides that, in certain circumstances, the FWC must make an order that industrial action that is not protected industrial action and that is happening or is threatened or is being organised either stop, not occur or not be organised for a period specified in the order. The period specified in the order is referred to in the subsection as “the stop period”. The concept of “protected industrial action” is defined in s 408 of the FW Act, but it is not necessary at this stage to set out the details. Subsection 418(3) of the FW Act provides that, in making the order under subs 418(1), the FWC does not have to specify the particular industrial action which is to stop, not occur or not be organised.
10 HYLC’s application for an order under subs 418(1) came on for hearing before Senior Deputy President O’Callaghan. He described the rival contentions as follows:
[13] The Joint Venture position was that the nominated employees had been, up until the time the application was made, engaging in frequent unprotected industrial action in the form of stoppages of work, a refusal to work overtime and reduced work outputs and, further, that most of this industrial action was taken on the basis of assertions that it was related to safety concerns which were not based on any reasonable concern about an imminent risk to employee health and safety such that work, or attendance at the nRAH was not possible. The Joint Venture asserted that the frequency with which this action had occurred since July 2013 meant that the requirements for the essential making of an order pursuant to s.418 were satisfied.
[14] The position of the nominated employees was that the application did not enable an order of the nature sought in that the individuals involved in various alleged unprotected actions were not satisfactorily identified. Further that, to the extent that the nominated employees had engaged in industrial action that action was specifically and legitimately related to reasonable concerns about health and safety risks. The CFMEU, on behalf of the nominated employees, argued that an order could not properly be brought against only 16 employees and that the records relied upon to identify the employees and establish the times of the alleged actions were inherently flawed.
(Hansen Yuncken Pty Ltd and Others v Gareth Deegan and Others [2013] FWC 7505).
11 The Senior Deputy President referred to a document described as a HYLC Occupational Health and Safety Plan and concluded that it represented a reasonable direction to employees. He also referred to provisions in the Work Health and Safety Act 2012 (SA) which gave an employee the right to cease unsafe work.
12 The Senior Deputy President found that employees on the site had taken action relative to safety concerns and he considered whether those actions constituted unprotected industrial action. His approach was to consider whether the industrial action was based on a reasonable concern by employees about an imminent risk to their safety and, if so, it may not be regarded as unprotected industrial action. He found that none of the stoppages of work “present reasonable concerns about imminent serious risks to employee health or safety”. He found that the action was unprotected industrial action and that each of the 16 named employee respondents had participated in it. He found that it was probable that further unprotected industrial action would occur in the future. The Senior Deputy President decided that it was appropriate for the FWC make an order under s 418 of the FW Act. He said that he did not consider that s 418 in its current form precluded the making of an order of a general nature relative to the nominated employees.
13 On 26 September 2013, the Senior Deputy President made the following order:
1. TITLE
This order shall be known as the HYLC Industrial Action Order 2013 (the Order).
2. APPLICATION
This order applies to work and employment regulated by The Hansen Yuncken Pty Ltd Enterprise Agreement 2012 and/or the Leighton Contractors Pty Ltd and CFMEU South Australia Enterprise Agreement 2011-2015 (the Agreements).
3. PARTIES BOUND
The parties bound by this order are:
3.1 Hansen Yuncken – Leighton Contractors Joint Venture (the Company);
3.2 the following employees of Hansen Yuncken Pty Ltd or Leighton Contractors Pty Limited or the Company who are currently engaged in construction work at the new Royal Adelaide Hospital Project site, Mr Gareth Deegan; Mr Lauchlin Duif; Mr Tim Gudgeon; Mr David Mead; Carmine Palumbo; Mr Malcolm Vass; Mr Stephen Wise; Mr David Worgan; Pius Carey; Chris Flaherty; Mr Matt Hourigan; Mr Jack Merkx; Mr Glen Metcalfe; Mr Ron Shaw; Mr Jim Spyro; Mr Michael Tsesmelis, (herein referred to as “the Employees”)
4. DEFINITION
For the purposes of this Order, industrial action has the meaning prescribed by s.19 of the Act and includes:
4.1 the performance of work in a manner different from that in which it is customarily performed, or the adoption of a practice in relation to the work, the result of which is a restriction or limitation on, or delay in, the performance of the work;
4.2 a ban, limitation, or restriction on the performance of the work, or an acceptance of or offering for work by an employee;
4.3 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; and
4.4 the aiding, abetting, counselling, procuring, authorising, directing, organising or encouraging of any person to whom this Order applies to engage in the conduct referred to in paragraphs 3.1 to 3.3 above;
but excludes:
4.5 action by an employee that is authorised or agreed to by the Company; and
4.6 action by an employee if such action was based on the employee’s reasonable concern about an imminent risk to the employee’s health or safety, and the employee did not unreasonably fail to comply with the directions of the employee’s employer to perform other available work, whether at the same or another workplace, that was safe and appropriate for the employee to perform.
5. INDUSTRIAL ACTION NOT TO OCCUR
From the time of this Order industrial action must stop and not occur, and accordingly the Employees must not organise any industrial action.
5.1 The Employees must:
a) not continue, or engage in, any industrial action involving any of the Employees;
b) immediately stop organising any industrial action involving any of the Employees; and
c) not organise, aid, abet, direct, procure, induce, advise, authorise or encourage any Employee to engage in industrial action,
until the expiration of this Order.
5.2 Each of the Employee must:
a) immediately stop engaging in industrial action;
b) not continue or recommence any industrial action; and
c) not organise any industrial action;
until the expiration of this Order.
6. SERVICE OF ORDER
The Employer will forthwith:
6.1 Issue and distribute to all the Employees a copy of this Order and the Decision of 26 September 2013, [2013] FWC 7505.
6.2 Publish the Order on Notice Boards usually used for the purpose of communicating with employees.
7. INTERIM ORDER
The Interim Order known as the HYLC Industrial Action Interim Order (No. 1) 2013 issued on 11 September 2013 is revoked.
8. TERM AND DATE OF EFFECT
This order shall come into effect at 5:00 pm on 26 September 2013 and will remain in force until a further order or until discontinuance of the application.
14 In his reasons, the Senior Deputy President said that, in his opinion, it was appropriate that the order operate for a period of six months (at [51]). However, the order made did not reflect that conclusion in paragraph 8 and on the following day (i.e., 27 September 2013), the Senior Deputy President made the following order:
A. The Order issued by the Fair Work Commission on 26 September 2013 [PR542567] is corrected as follows:
1. By deleting the paragraph in 8. TERM AND DATE OF EFFECT and inserting the following:
This order shall come into effect at 5:00 pm on 26 September 2013 and will operate for a period of six months.
15 The respondents claim that the FWC Order is invalid and that, in those circumstances, there cannot be a contravention of s 343 of the FW Act.
16 The terms of s 343 of the FW Act are set out above. The applicant’s case is that the relevant workplace right for the purposes of subs 343(1) of the FW Act is the right to initiate, or participate in, a process or proceeding under a workplace law or workplace instrument, and that includes court proceedings under the FW Act and the FWC Order (subs 341(1)(b) and (2)(b) of the FW Act). By virtue of s 421 of the FW Act, a contravention of a term of the FWC Order is the contravention of a civil remedy provision and may be restrained by an injunction sought by HYLC being a person affected by the contravention. The contravention of a FWC Order is also an offence under the FW Act (subs 675(1)).
17 I should say that, to the extent that the respondents argued in their written submissions that the Senior Deputy President did not have the power to correct the order which he made on 26 September 2013, I reject that argument. He did have the power to correct the order (s 602 of the FW Act).
18 In his reasons, the Senior Deputy President identified the industrial action as involving various employees refusing to work or leaving work without authorisation on a number of occasions in June, July, August and September 2013 (at [27], [34], see also [7]-[10]). HYLC’s case before the Senior Deputy President seems to have included, in addition, a refusal to work overtime and reduced work outputs (see the passages set out in paragraph 10 of these reasons), but these additional matters were not the subject of findings by the Senior Deputy President.
19 The FWC Order identifies the employees who are subject to it and prohibits certain conduct constituting industrial action, organising industrial action or aiding and abetting industrial action.
20 “Industrial action” is defined in the FWC Order as having the meaning set out in s 19 of the FW Act. Section 19 is in the following terms:
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.
…
(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.
21 The FWC Order in paragraph 4 incorporates the definition of industrial action in s 19 and then, as part of a non-exhaustive list of matters, paragraphs 4.1, 4.2 and 4.3 of the FWC Order pick up paragraphs (a), (b) and (c) of subs 19(1).
22 The respondents’ principal submission is that the FWC Order is invalid because it did not specify “the industrial action” which led to the order being made. Subsection 418(1) of the FW Act is engaged if it appears to the FWC that there is unprotected industrial action that is happening or is threatened, impending or probable or is being organised and, in those circumstances, an order must be made that “the industrial action” stop, not occur or not be organised. It is that industrial action which may be the subject of an order. The respondents submit that subs 418(3) does not mean that “the industrial action” can be defined in an order simply by reference to the definition in s 19 of the FW Act and it must be defined as the particular industrial action which led to the making of the order. In this case, the FWC Order goes well beyond the industrial action which led to the making of the order.
23 The respondents contend that the argument that the industrial action which led to the making of the order and only that action should be the subject of the order is supported by the reference in subs 421(2)(b) to “the industrial action to which the order relates”. As to this particular point, I think the reference is neutral and it could be a reference to particular industrial action or more general industrial action.
24 The respondents relied on the decision of Jessup J in Esso Australia Pty Ltd v The Australian Workers’ Union (2015) 253 IR 304; [2015] FCA 758 (“Esso”). In that case, Jessup J noted with respect to subs 496(1) of the Workplace Relations Act 1996 (Cth) which was in similar terms to subs 418(1) of the FW Act, that the Full Court of this Court in Transport Workers’ Union of New South Wales v Australian Industrial Relations Commission and Others (2008) 166 FCR 108 (“TWU”) had said that the power and duty of the Australian Industrial Relations Commission (“AIRC”) in making an order was limited to the industrial action that was the subject of the application before it. The AIRC could not make an order in relation to any or all action that might fall within the definition of industrial action (at 128-129 [39] per Gray and North JJ). Jessup J considered that it would require a higher authority than a single judge of the Court to conclude that the approach of Gray and North JJ in the TWU case was wrong. His Honour identified the steps to be taken by the FWC under subs 418(1) of the FW Act as follows:
(1) the FWC must determine whether it appears to it industrial action by one or more employees is happening, is threatened, impending or probable or is being organised;
(2) the FWC must determine whether the industrial action is not or would not be protected industrial action; and
(3) is so, the FWC must make an order and in doing so it must proceed on the basis that the subsection is to be read distributively so that it would not make an order that industrial action not be organised unless it found that it was being organised.
25 With respect to the permissible scope of an order and the effect of subs 418(3) of the FW Act, Jessup J said (at [108]-[109]):
108 Fourthly, subs (3) permits the Commission to frame its order in a way that does not “specify the particular industrial action”. That is to say, it is permissible for the industrial action to be identified without specification of whether it is, or would be, a work stoppage, a ban, or something else. But that does not mean that the Commission can go beyond the findings made under subs (1). Nor, in my view, does it mean that the Commission can frame its order by reference to “industrial action”, without more. The order which it is required to make may not extend beyond “the” industrial action which has been found to be happening, to be threatened, etc.
109 If these observations are sound ones, the question will inevitably arise: if the Commission is limited to the industrial action which was the subject of its findings under s 418(1), but is not required to specify the form that the industrial action being prohibited by its order might take, how is it to be expected to identify the subject-matter of its prohibition? A ready, but rather unsatisfying, answer to that question would be to say that the operation of s 418 in the way I have expressed it is sufficiently clear to make recourse to practical issues such as this both unnecessary and impermissible as on matters of construction. A more satisfying answer would be to recognise that the section contemplates that the Commission must, or at least will normally, identify the industrial action in some way. This may involve specifying the particular industrial action: the existence of subs (3) does not mean that the Commission may not so proceed. Or it may make use of some other identifier which makes sense to the parties in the facts of the case, such as the purpose of the action, the place in which it is to occur, the timing of the action, or something else. The point here is that the existence of subs (3) does not, as a matter of construction, involve the proposition that the Commission no longer need identify the industrial action which is being prohibited by its order, or the conclusion that, in making its order, the Commission may travel beyond the scope of “the” industrial action, the subject of its findings under subs (1).
26 The respondents submit that I should follow the decision in Esso and hold that the FWC Order was not authorised by the terms of s 418 of the FW Act because it went beyond the industrial action found, being a refusal to work and leaving work without authorisation. The result is that the FWC had committed a jurisdictional error and its decision is in effect, “no decision at all” (Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at 614-615 per Gaudron and Gummow JJ).
27 There was an appeal from the decision of Jessup J in Esso. The Full Court of this Court handed down its decision on 25 May 2016 (Esso Australia Pty Ltd v The Australian Workers’ Union [2016] FCAFC 72). The Full Court rejected a challenge to Jessup J’s decision as to the permissible scope of an order under subs 418(1). Buchanan J (with whom Siopis J agreed (at [1]) said (at [54]):
What they [i.e., orders under s 418(1)] may not do is move beyond the industrial action identified as the foundation for making the order as required by s 418(1).
(see also Bromberg J at [378]).
28 The applicant put a number of arguments in response to the respondents’ submission. First, he submits that whether or not the FWC Order is valid is irrelevant because, on any view, the HYLC had the ability “to initiate or participate in a process or proceeding” under the Act in relation to the FWC Order and it is immaterial whether or not the FWC Order is subsequently held to be beyond power. Secondly, the applicant submits that the respondents’ challenge is an impermissible collateral challenge to the FWC Order. Thirdly, the applicant submits that the respondents’ challenge ought not be entertained in the absence of all necessary parties, including the 16 respondents to the FWC Order. Fourthly, the applicant submits that the decision in Esso is wrong and should not be followed. Finally, the applicant submits that even if Esso is followed, the respondents have not proved that the FWC Order is invalid, or alternatively, the FWC Order can be read down so that it is valid, at least as to industrial action which led to the making of the order, namely, (having regard to the reasons) a refusal to work and leaving work without authorisation.
29 In my opinion, the applicant’s first submission is correct and I do not need to consider the other submissions. As at 22 November 2013, the FWC Order had not been set aside. Under s 421(1) of the FW Act, it was open to HYLC (as a person affected by the contravention) to seek an injunction restraining a contravention of the FWC Order. HYLC had an ability to initiate a proceeding seeking an injunction and that is a relevant workplace right. The same might be said about a right to participate in a proceeding, but I do not need to decide that particular question.
30 As to the impermissibility of a collateral challenge in circumstances where no express provision of the FW Act preventing a collateral challenge was identified, consideration would need to be given to, among other things, whether the provisions of the FW Act preclude, by implication, a collateral challenge. There was a right with permission to appeal from the FWC Order (subs 604(1)) and the alleged invalidity of the FWC Order could be raised in enforcement proceedings under s 421 of the FW Act. There are, of course, numerous cases which have addressed the circumstances in which a collateral challenge may be permitted (Ousley v The Queen (1997) 192 CLR 69; Jacobs v OneSteel Manufacturing Pty Ltd and WorkCover Corporation of SA (2006) 93 SASR 568; Aronson M and Groves M, Judicial Review of Administrative Action (5th ed, Lawbook Co 2013) pp 700-706). As to the absence of all necessary parties, at least where declarations are sought, that circumstance gives rise to a discretion in the Court to refuse relief (Mineralogy Pty Ltd v Sino Iron Pty Ltd (No 6) [2015] FCA 825 at [942]-[957] per Edelman J). The point here is probably different in that declarations are not essential to a resolution of this case and the imposition of a penalty for a contravention of a civil remedy provision. As to the submission that Esso is wrong, it is not open to me to reach a decision contrary to the recent Full Court decision, even if I was otherwise disposed to take a different view of the merits of the arguments. As to the submission that the respondents have not proved that the FWC Order is invalid, the applicant relies on the fact that the respondents have not brought forward all of the evidence that was before the Senior Deputy President. That is true, but I would have been disposed to reject the applicant’s argument because it seems to me that the Senior Deputy President clearly identified in his reasons the industrial action which led to the making of the FWC Order. As to reading down the FWC Order, that might be possible so that it is valid to the extent that it prohibits the type of industrial action which led to it being made, that is to say, a refusal to work and leaving work without authorisation (Acts Interpretation Act 1901 (Cth) s 46).
31 The applicant has established the workplace right it has pleaded.
The Respective Cases
32 The applicant called four witnesses. They were Mr Constantine Kerpiniotis, Mr Michael Nunweek, Mr David Norman Johns and Mr Layton Alan Waters. The respondents called Ms Sylvia Uglesic, Mr Keven Hansen, Mr David Symons and the second respondent, Mr Aaron Cartledge. All of these persons were present at the meeting on 22 November 2013 at the time at which it is said the threats were made. I also received an affidavit sworn by one of the Union’s solicitors, Mr Peter Russell.
33 The third respondent, Mr McDermott, was not called as a witness. Mr James O’Connor was not called as a witness. Both were present at the meeting and there is nothing to suggest that either could not have given evidence. Mr Cartledge described Mr O’Connor as a representative of the Union. The applicant submits that I should more readily accept the evidence of its witnesses that the threats were made (Jones v Dunkel and Another (1959) 101 CLR 298; Australian Securities and Investments Commission v Hellicar (2012) 247 CLR 345 at 412-414 [164]-[170] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ). I will return to this submission.
34 As I have said, subs 343(1) is a civil remedy provision and the Court applies the rules of evidence and procedure for civil matters when hearing proceedings relating to a contravention of such a provision (s 551). Subsection 140(2) of the Evidence Act 1995 (Cth) provides that, in determining whether a matter has been proved on the balance of probabilities, the Court may take into account the nature of the subject matter of the proceeding and the gravity of the matters alleged. In Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449; (1992) 67 ALJR 170 at 170-171, Mason CJ, Brennan, Deane and Gaudron JJ said:
The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud. On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary “where so serious a matter as fraud is to be found”. Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct.
(see Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2010] FCA 784; (2010) 187 FCR 293; Director of the Fair Work Building Inspectorate v Adams [2015] FCA 828).
A “civil remedy provision” is not an offence, but it may lead to the imposition of pecuniary penalties (ss 539 and 549).
35 I have already mentioned the essential elements of subs 343(1) of the FW Act, one of which is an intent to coerce. Subsection 361(1) of the FW Act provides that if it is alleged that a person took action with a particular intent and taking that action with that intent would constitute a contravention of Part 3-1 (including s 343 of the FW Act), then it is presumed that the action was taken with that intent unless the person proves otherwise.
36 The meaning of “intent to coerce” has been considered in a number of cases. The use of the phrase in s 170NC(1) of the Workplace Relations Act 1996 (Cth) was considered by Merkel J in Seven Network (Operations) Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and Others (2001) 109 FCR 378 at 388 [41]. His Honour said that there were two elements namely, an intention to exert pressure which in a practical sense will negate choice and that exertion of pressure must involve conduct that is unlawful, illegitimate and unconscionable.
37 This approach has been followed when considering the application of subs 343(1) of the FW Act (Victoria v Construction, Forestry, Mining and Energy Union and Another (2013) 218 FCR 172; [2013] FCAFC 160 per Buchanan and Griffiths JJ at [72], and Kenny J at [5]). As Mansfield J said in Director of the Fair Work Building Industry Inspectorate v Cartledge [2015] FCA 453 at [165]-[169], the phrase refers to a high degree of compulsion to negate choice and the onus is on the respondent to disprove the intent. I refer also to the discussion in the recent Full Court decision in Esso Australia Pty Ltd v The Australian Workers’ Union [2016] FCAFC 72 at [166] et seq. per Buchanan J.
38 If Mr Cartledge and Mr McDermott used the words which the applicant alleges were used, then an intent to coerce in the relevant sense is made out because plainly the words would have been used to bring pressure to bear on HYLC not to commence proceedings against the respondents to the FWC Order. The threats could not be considered lawful and legitimate. The respondents’ case is that quite different words were used in a different context.
Witnesses
The Applicant
39 Mr Kerpiniotis was employed by Leighton Contractors Pty Limited and seconded to HYLC. In February 2013, he commenced work on the new Royal Adelaide Hospital project as a senior project manager and, from January 2014, he was employed as the Operations Director.
40 On 21 November 2013, there was an incident on the site when the jib of a crane identified as 1A came into contact with the rope of a crane identified as 2A. Representatives of SafeWork SA (“SWSA”) attended the site to investigate the incident. On the morning of 22 November 2013, there was a meeting in the parklands opposite the site involving the unions and workers. A majority of the employees who ordinarily worked on the site, attended the meeting. After the meeting, the majority of workers withdrew their labour.
41 After the meeting involving the unions and the workers in the parklands, there was a meeting on the site involving representatives of SWSA, two unions and HYLC. According to Mr Kerpiniotis, the attendees at the meeting and the organisation or group they were representing were as follows:
(1) SWSA: Robin Scott, David Symons and Sylvia Uglesic;
(2) CFMEU: Aaron Cartledge, Michael McDermott and James O’Connor;
(3) Communications, Electrical and Plumbing Union (“CEPU”): Doug Buchanan and Jason Smith;
(4) HYLC crane crew: Keven Hansen; and
(5) HYLC: Constantine Kerpiniotis, Mike Nunweek (part of the meeting), David Johns (part of the meeting) and Layton Waters.
42 Mr Kerpiniotis said that he led the meeting and he answered questions and took telephone calls. He prepared notes of the meeting that evening with the assistance of notes which had been prepared by Mr Waters.
43 Mr Kerpiniotis said that a query arose during the meeting as to how the anti-collision system for the cranes (“Ascorel”) worked. He went to get Mr Nunweek so that Mr Nunweek could explain this topic. Mr Kerpiniotis said that during Mr Nunweek’s explanation, Mr McDermott asked Mr Nunweek why he had contacted the crane crew telling them HYLC would go after them “with the orders”. I mention at this point that some of the respondents to the FWC Order were members of the crane crews on the site. Mr Kerpiniotis said that there was then some commotion with people in the meeting talking over each other. Mr Kerpiniotis’ evidence was that he was trying to calm things down, saying that the workers had not followed due process, but that that was for a different forum and asking the participants in the meeting to return to the agenda which was safety. Mr Cartledge became agitated. He left his seat, was very vocal and using expletives, and eventually he said that there would be industrial action on HYLC projects if HYLC “went after the men with the orders”. Mr McDermott was saying the same thing except that he used “JV” jobs rather than “Hansen Yuncken/Leighton Contractors” jobs.
44 In cross-examination, Mr Kerpiniotis said that he asked Mr Waters for a copy of the notes he (Mr Waters) had taken at the meeting and that he used Mr Waters’ notes to prepare his notes that evening. Mr Kerpiniotis did take his own notes during the meeting and he made no reference to any threats in those notes. Mr Kerpiniotis suggests in paragraph 18 of the affidavit he swore that he prepared his notes and then emailed them to himself during the evening of 22 November 2013. In fact, he emailed the notes to himself on 3 December 2013 and the first time that he advised anyone of that fact was on the first day of trial.
45 Mr Kerpiniotis agreed that there was a serious incident involving a crane on the site on 17 November 2013 when a crane identified as 3A dropped a load of framework. He agreed that he met with Mr Hansen and Mr O’Connor on 19 November 2013 concerning health and safety issues in relation to the tower cranes on the site. As to the notes which he prepared during the evening of 22 November 2013 (CK1), Mr Kerpiniotis agreed that initially he thought that it was Mr O’Connor who said that Mr Nunweek was contacting the crane crews and then changed his mind and said it was Mr McDermott. He said that he had taken off the email header to the notes because he did not think that the header was relevant. Mr Kerpiniotis had Mr Waters’ notes, but he said in cross-examination that for those parts of the meeting where he was present, the notes are his notes and not merely a reproduction of Mr Waters’ notes. I have compared Mr Kerpiniotis’ notes and Mr Waters’ notes. They are very similar and it is hard to think that Mr Kerpiniotis, in preparing his notes, was not influenced significantly by what he read in Mr Waters’ notes. He was asked about phrases in his notes such as “(Con K left the room)”, “Con K advised” and sometimes “I advised”.
46 Mr Kerpiniotis does not recall the word “Armageddon” being used. He did recall the phrase, “all hell is going to break loose” being used in what he said was the heat of the moment. I think that it emerged clearly from Mr Kerpiniotis’ cross-examination that he agreed with Mr Nunweek contacting the crane crews, but he said this was not to threaten them but, rather, to remind them of their obligations. He spoke to Mr Nunweek about the latter speaking to the crane crews and asking them to come to the meeting which they had planned to have with SWSA. He cannot say one way or the other whether the FWC Order was discussed with Mr Nunweek.
47 Mr Kerpiniotis was pressed at length in cross-examination about his recollection of the conversation. He maintained his position that Mr Cartledge and Mr McDermott said that there will be industrial action on all HYLC projects. He agreed that there were no other HYLC joint venture projects, although there were other Leighton Contractors’ projects. He was a Leighton Contractors employee and could not speak for Hansen Yuncken other than to say that it does building projects in most of the States in Australia.
48 Mr Nunweek is a crane and logistics manager for HYLC. He was employed on the site at the relevant time and he was responsible for all cranes, mobile and tower, safe lifting procedures, rostering the HYLC crane crews as well as the telehandlers, forklifts and, in general, controlling material movement. He confirmed that there was an incident at the site on 21 November 2013 when the jib of crane 1A “touched” the wire rope of crane 2A. No person was harmed and no real damage was done. HYLC reported the incident to SWSA and to the health and safety representatives on the site. Mr Nunweek recorded details of the incident in his diary.
49 Mr Nunweek observed, from across the road, the meeting in the parklands on the morning of 22 November 2013. He said that to a great extent, the workforce on the site attended the meeting, although there were some employees on site. He saw Mr McDermott directing workers across the road at the gate. Some of the crane crew were at the site and Mr Nunweek recalls saying to four or five of them, including two who were respondents to the FWC Order, words to the following effect:
I am glad you are here because you never know how this could turn out if it is perceived as industrial action, it could affect you because you are named.
By “named” he meant named as respondents to the FWC Order.
50 Sometime after this conversation, Mr Nunweek was called into the subsequent meeting at the site to explain the Ascorel Anti-Collision System that operates with respect to the cranes. He recalls seeing Mr Cartledge and Mr McDermott at the meeting, as well as Mr O’Connor who he then knew only by the name of “Jimmy”. Mr Nunweek saw Mr O’Connor receive a text message on his telephone and then heard him say words to the effect that that “Nunweek had been threatening union members with breaching court orders”. Mr Nunweek then heard Mr McDermott say in a loud and aggressive voice words to the effect of “if that was the case, if that was what was happening, there will be Armageddon”. Mr Nunweek understood what was said as a threat against the joint venture partners to take further industrial action against them. Mr Nunweek heard Mr Cartledge say in a firm voice words to the effect that “we will take it national”. He understood Mr Cartledge’s comment to be further underscoring the threat he perceived Mr McDermott to have made. Mr Nunweek left the meeting shortly afterwards.
51 Mr Nunweek said that he would not dispute that Mr Cartledge and Mr McDermott may have said something about trying to get people back to work whilst he was threatening the crane crews and that he did not disagree that it might have been in that context that Mr Cartledge or Mr McDermott said “that this will create absolute Armageddon with the blokes”, and that it may have been said “that all hell is going to break loose out there”.
52 Mr Nunweek said that he regarded what was said at the time as threats, but at the same time, he did not disagree with the proposition that what was said was not a threat, but a statement of the “bleeding obvious”.
53 Mr Johns is an industrial relations manager and at the relevant time he was employed by Leighton Contractors Pty Limited, but seconded to HYLC. He was the industrial relations manager for the project. He was aware of the incident involving the tower cranes which occurred on 21 November 2013. Mr Johns attended the site early on the morning of 22 November 2013 and he noticed union officials and members, including Mr Merkx and Mr O’Connor of the CFMEU, directing workers on the site to a meeting taking place across the road in the parklands. After the meeting, a majority of workers returned to the site to collect their belongings and then left the site. Mr Johns said that during the morning of 22 November 2013, HYLC was considering taking action in the FWC against the 1400 or 1500 workers who had left the site. Mr Johns was called to the meeting on site and when he arrived, Mr Nunweek was explaining the Ascorel Anti-Collision System which operates in relation to cranes. His recollection of those present at the meeting, in addition to Mr Nunweek, were Mr Kerpiniotis, Mr Waters, representatives from SWSA, representatives from the CFMEU, and representatives from the CEPU.
54 Mr Johns recalls a comment by Mr Scott of SWSA suggesting that HYLC had taken punitive action in relation to the crane crews by giving them alternative duties. Mr Johns strongly challenged that claim. Mr Johns said that there were a number of people talking over each other. There was a commotion to his left where some of the union representatives were seated and some people got up. Mr Johns could not remember who those people were. Mr Johns remembered that, basically, people were taking “pot shots” at the joint venture. Mr Johns could not recall any other conversation that took place in his presence. Mr Johns said in cross-examination that he does not recall any threat being made. If he had heard a threat, he would have recalled it because part of his role was to record and act on any threats made to HYLC.
55 The respondents asked me to place a good deal of weight on this aspect of Mr Johns’ evidence. I certainly take it into account, but I do not think it is of particular significance. Mr Johns was focused on his conversation with Mr Scott and, on any view, the commotion or flare-up was over very quickly.
56 Mr Johns said that by the end of the meeting on 22 November 2013, there was a consensus led by SWSA that the workforce should be back by the following Monday. Mr Johns said that there was a meeting of the unions and some of the workforce on 23 November 2013. Mr Johns said that there was usually work on the site on Saturdays and smaller groups on Sundays. There was no work on the site on Saturday, 23 November 2013 or Sunday, 24 November 2013. Men returned to the site on Monday, 25 November 2013, the site began to be operational again on Tuesday, 26 November 2013 and was back to where it had been on Wednesday, 27 November 2013.
57 Mr Johns had a “debriefing” meeting with Mr Kerpiniotis and Mr Waters on 22 November 2013 after the meeting. He did not become aware of the alleged threat until early to mid December 2013. Mr Kerpiniotis and Mr Waters thought they had discussed the threat at the “debriefing” meeting with Mr Johns, but Mr Johns said the threat was not raised.
58 Mr Waters is an industrial relations manager employed by Leighton Contractors Pty Limited and seconded to HYLC. He was employed on the project. He referred to the incident involving the tower cranes on 21 November 2013 and the fact that a meeting had been arranged for 22 November 2013 involving HYLC, SWSA and the crane crews.
59 Mr Waters attended the site on 22 November 2013 and he saw the meeting taking place in the parklands opposite the site. Mr Waters said that SWSA were not able to meet the whole of the crane crews as planned because a majority of workers had left the site after the meeting in the parklands.
60 Mr Waters said that the meeting on the site commenced at approximately 9.40 am and that the persons present at the meeting were the following:
(1) Mr Kerpiniotis and himself representing HYLC;
(2) Mr Scott, Mr Symons and Ms Uglesic representing SWSA;
(3) Mr Cartledge, Mr McDermott and Mr O’Connor representing the Union;
(4) Mr Buchanan and Mr Smith representing the CEPU; and
(5) Mr Keven Hansen, the HYLC crane crew health and safety representative who arrived a bit later than the others.
61 Mr Nunweek and Mr Johns also attended the meeting at different times.
62 Mr Waters made fairly extensive notes of the events which took place on 22 November 2013, including the meeting. Mr Waters said that during Mr Nunweek’s explanation of the anti-collision system for the cranes, Mr McDermott said words to the effect of “why is Nunweek calling the guys and telling them it is industrial” to which Mr Kerpiniotis responded with words to the effect that it was “not an industrial issue”. Mr Waters said that after that, Mr Johns entered the room and had a discussion with Mr Scott and then there was a discussion about getting the workers back to work. Mr Waters said that he was focussing on the conversation between Mr Johns and Mr Scott, but there was another conversation going on and he heard Mr McDermott say words to the effect of “if we go after the guys with orders against them, there will be industrial action on all joint venture jobs”. Mr McDermott was standing and speaking in a loud voice. He also recalls a reference to “Armageddon”. Mr Waters’ notes which were tendered contain the following:
Unions threatened severe industrial action on all JV jobs if we ‘go after personnel with orders against them’.
63 Mr Waters was cross-examined at length. Mr Waters said that he had a debriefing meeting with Mr Kerpiniotis and Mr Johns after the meeting and he told them of the threat. That is different from the evidence of Mr Johns who could not recall any discussion about a threat or threats. Mr Waters said he gave a copy of his notes to Mr Johns in the middle of the afternoon on 22 November 2013. He said he did not give a copy of his notes to Mr Kerpiniotis. Mr Kerpiniotis said that Mr Waters gave him a copy of his notes. Mr Waters was cross-examined at length about the content of his notes and it was suggested to him that he did not prepare his notes at the meeting, but in fact prepared them some time afterwards, perhaps some considerable time afterwards. I reject that suggestion. I think that he prepared the notes during the meeting, summarising matters discussed, going back and adding things as he went along. He did place the critical words in the wrong place (before Mr Johns entered the meeting and not afterwards), but I think that that was an innocent mistake. He noted at least one inconsistency between his notes and those of Mr Kerpiniotis. Mr Waters said that he could remember the words “go after personnel with orders against them”, but he could not clearly remember the words “severe industrial action on all joint venture sites”. He said that he heard something along those lines, but he also said that he could not recall the context. He agreed that his notes were inaccurate in referring to “unions threatened” and that it should have been “union”. He seemed to agree in cross-examination that in fact there could well have been trouble from the men if HYLC pursued the respondents to the FWC Order and that that might have been the context in which the comments were made. I take that evidence into account.
The Respondents
64 Mr Cartledge is the Branch Secretary of the Construction, Forestry, Mining and Energy Union, the Construction and General Division, South Australian Branch. He has worked in the building industry for approximately 27 years and he has extensive experience in the industry in South Australia. He worked as a carpenter in the industry and has been a union official since approximately 1999.
65 Mr Cartledge said, and I accept, that the construction of the new Royal Adelaide Hospital is a large and complex project. HYLC are in charge of the project. Mr Cartledge compared the other major buildings projects in South Australia by reference to the number of tower cranes on the site of the project. There have been eight tower cranes on the site of the project. There is another project adjacent to the site of the project. This project is the building project for the South Australian Health and Medical Research Institute. There are tower cranes on that site and the jib of one of the tower cranes on the adjacent site has a circumference that overlapped with the jib circumference of tower cranes on the site of the project. Mr Cartledge said, and I accept, that that added to the complexity of the work on the site of the project. Mr Cartledge said, and I accept, that various safety issues arose on the site of the project. He saw some of these for himself and others he became aware of due to his involvement after an incident or accident. He described a number of incidents involving the failure of the collision avoidance system known as Ascorel, a crane jumping gears and releasing a pack, a window falling out of a crane, a crane slewing and causing damage to a satellite concrete pump, an electrician suffering a serious electric shock and no nurse on the site to attend to him, the inability to bring down in a safe manner (according to Mr Cartledge) a worker who had broken his ankle, and the inability of a crane to lift a column box or column cage in a proper manner.
66 Mr Cartledge said, and I accept, that safety committees had been established to address safety issues on the site and that there were workers on these committees. It seems clear enough, I think, that there were workers on the site who were concerned about safety issues and who were concerned about whether they were being properly addressed by HYLC. The CEPU was concerned about cranes lifting loads above workers and Mr Cartledge produced email correspondence in March 2013 wherein the CEPU raised those concerns. He also produced email correspondence involving the CEPU in November 2013 in which it is again raising safety concerns.
67 Mr Cartledge recalls visiting the site to discuss the order made by Senior Deputy President O’Callaghan with the respondents to the orders and others. Mr Cartledge said that events came to a head on 21 November 2013 when there was another crane incident at the site. He said that it involved a failure of the anti-collision equipment in respect of the cranes. He understood it to be the jib of one of the tower cranes hitting the wire rope of an adjoining crane. He said that there had been several crane incidents on the site in a matter of a few months. He said that the workers were angry and he was trying to placate and persuade them to work through the issues with management. He was thanked for his efforts by the then project director of HYLC. Mr Cartledge said that in the days leading up to 21 November 2013, he had a number of telephone conversations with Mr Hansen who was the health and safety representative for the crane crew employed by HYLC. Mr Hansen told him that the crane crew were hostile and very angry and were upset about the fact that HYLC and other workers were blaming the crane crew for the incidents involving the cranes on the site.
68 Mr Cartledge was interstate on 21 November 2013 and he asked Mr McDermott to investigate what was happening on the site. He received telephone calls from workers during the course of the day and they told him that they were angry and wanted to have a mass meeting the following day. He spoke to the CEPU representative that night about the workers’ request for a mass meeting. He said that the CFMEU did not call the meeting which took place in the parklands on the morning of 22 November 2013. It was called by the workers on the site, and officials of the CFMEU and CEPU attended.
69 On 22 November 2013 at approximately 7.30 am, Mr Cartledge received a telephone call from Mr McDermott informing him that the employees had decided to walk off the site because they did not feel safe. Mr McDermott told him that a meeting to discuss safety issues was to be held that day and that health and safety representatives were to attend the meeting. Mr Cartledge also had a telephone conversation with Mr Johns who was the industrial relations manager for HYLC. Mr Johns wanted Mr Cartledge to attend the meeting which was to be held to discuss safety issues.
70 The meeting on site took place in the Flinders meeting room. There were SWSA representatives present: Mr Scott, Mr Symons and Ms Uglesic. Mr Cartledge said that there had been a plan in place for some time for representatives of SWSA to meet the crane operators on 22 November 2013 to discuss the latter’s concerns about incidents on the site. Those concerns were concerns the crane crew had expressed to Mr Cartledge and included unresolved logbook issues, problems with human fatigue, the lack of a proper crane coordinator, the exclusion of crane drivers from pre-start tool box meetings, swapping of crane crew personnel, and failures in the Ascorel system. The meeting that was actually held was different from what had been proposed because not all members of the crane crews were available.
71 Mr Cartledge said that the meeting was a long one and that those present for most of the time, in addition to the SWSA representatives, were himself, Mr McDermott and Mr O’Connor from the CFMEU, Mr Smith and Mr Buchanan from the CEPU, and Mr Kerpiniotis, Mr Waters and Mr Hansen from HYLC. There were others who came in and out of the meeting. Mr Cartledge remembers Mr O’Connor leaving the room looking at his telephone and then returning saying to Mr Kerpiniotis words to the effect of:
I don’t fucking believe this. While we are in here trying to sort things out, you’ve got Mike Nunweek ringing crane crew threatening them.
Mr Cartledge remembers Mr McDermott saying to Mr Kerpiniotis words to the effect of:
You are not making this easy on us. You don’t know how volatile these guys are. There will be Armageddon if they find out you’re threatening workers. We’re just trying to get these blokes back to work.
Mr Cartledge said words to the effect of:
You are not making our life easy. We’re in here trying to sort this out. I’ve got to address these blokes on Monday, and all hell will break loose if they find out that you have been threatening guys on the job.
Mr Kerpiniotis responded by asking everybody to calm down. He said that no-one was going to sue or pursue anyone and that they were there to resolve issues and get the men back to work.
72 Mr Cartledge’s understanding on Friday, 22 November 2013 was that the workers had left the site and would not be returning until the following Monday. At that time, there would be a meeting which he would address. Mr Cartledge said that he wanted to get the men back to work, not create industrial action.
73 Mr Cartledge said that the conversation referred to above took only a couple of minutes and that other conversations were going on. After that, the Ascorel system and four man crane crews were discussed. He said other issues had been discussed at the meeting, including a lack of consultation with safety representatives, a failure to address issues raised by workers, changing personnel within crane crews, and the emergency evacuation procedure.
74 Mr Cartledge said that neither he nor Mr McDermott used the word “threat” and that he was not accused by anyone at HYLC of threatening anyone.
75 Mr Cartledge said that the meeting ended amicably and the parties agreed to meet again. Mr Cartledge said that there were a number of meetings on 22 and 23 November 2013. One involved Mr Cartledge meeting representatives of HYLC and agreeing on an approach to be taken the following Monday. He addressed a mass meeting of workers, expressed the view that the workers should return to the site while their representatives and management worked towards resolving the safety issues.
76 Mr Cartledge denied making the threats alleged against him by the applicant and said that while Mr McDermott used the word “Armageddon” and he used the phrase “all hell will break loose”, it was in the particular context set out above.
77 He said that there were some positive outcomes from the meeting, including agreement to reprogramme the Ascorel system, compulsory appointment and training of safety representatives by subcontractors and the appointment of spotters for crane operations.
78 Mr Cartledge said that on the Friday, Mr Kerpiniotis, and on the Saturday, Mr Chris Pratt of HYLC, threatened legal action either under the existing orders or by seeking new orders if the men did not go back to work.
79 Mr Cartledge admitted in cross-examination that his plan of where people were sitting during the meeting on 22 November 2013 as referred to in his first affidavit was completely wrong, other than the position of Mr Kerpiniotis. Mr Cartledge’s evidence about whether Mr Kerpiniotis had said that HYLC would enforce the FWC Order was unsatisfactory. In his second affidavit, Mr Cartledge made a clear statement that Mr Kerpiniotis had made such threats, but he resiled from that position in cross-examination when he said that that was merely his “perception of what was going on”. Mr Cartledge’s evidence about whether the workers were organising a mass meeting and wanted the unions to be there on the one hand, or wanted the unions to organise a mass meeting on the other, was confusing and unsatisfactory. Mr Cartledge’s evidence about whether he was going to take stronger action on behalf of his members was unsatisfactory. I thought his answers were indirect and that at times he fenced with the cross-examiner. I was unimpressed by the fact that Mr Cartledge said when pressed that he may have said something about the guys going back to work. I would have expected him to have remembered this, bearing in mind the other matters which he remembered.
80 In addition to Mr Cartledge, the respondents called two SWSA employees, Ms Uglesic and Mr Symons.
81 Ms Uglesic is an inspector under the Work, Health and Safety Act. Prior to 21 November 2013, Ms Uglesic had been to the site on several occasions in relation to safety issues. She went to the site on 21 November 2013 after the incident involving the tower cranes. It is unnecessary to set out the details of her attendance. A meeting was arranged for the following day involving SWSA, HYLC and the crane crews (day shift). Ms Uglesic issued four prohibition notices with respect to the two cranes involved in the incident which had the effect of stopping the use or operation of each crane.
82 Ms Uglesic made notes of the meeting on 22 November 2013 and they were tendered as part of her evidence. She said that the following persons were present at the meeting:
(1) HYLC: Mr Kerpiniotis and Mr Waters;
(2) SWSA: Mr Symons, Mr Scott and Ms Uglesic;
(3) CFMEU: Mr Cartledge, Mr McDermott and Mr O’Connor;
(4) CEPU: Mr Jason Smith and Mr Buchanan;
(5) HYLC Health and Safety Representative: Mr Keven Hansen.
Ms Uglesic recalls the following matters being discussed: the handover of crane crews, the extent of consultation with unions about safety management plans, the need for Health and Safety representatives to have access to computers, the presence of otherwise of records for tower cranes on site, full-time crane crew as against casual or labour hire, crane hopping, consultation with workers, and the operation of the Ascorel anti-collision device. Ms Uglesic said that while Mr Nunweek was at the meeting, she did not hear anyone mention industrial action by the Union. She said that she was contacted by the Fair Work Building inspectors about the discussions at the meeting.
83 In cross-examination, Ms Uglesic agreed that Mr McDermott wanted all the cranes stopped on 21 November 2013 and that he spoke to her in an aggressive tone. Mr McDermott later apologised for his behaviour. As to the meeting, Ms Uglesic recorded Mr Nunweek entering the meeting at 11.15am and explaining the anti-collision device. She agreed that for one reason or another, after Mr Nunweek entered the meeting room, she is not aware of anything happening other than Mr Nunweek’s explanation of the Ascorel Anti-Collision System. She did not hear, for example, a conversation between Mr Scott and Mr Johns where the former accused HYLC of taking punitive action against the crane crews.
84 Mr Symons is a SWSA inspector and, prior to his employment in that position, he had been a crane operator and an organiser for the Union. He attended the meeting on 22 November 2013. He said that the meeting with the crane crews and others was cancelled because not all of the members of the crane crews were present on site. He identified the persons present at the meeting and of those, the persons who were not there for the whole of the meeting (Mr Johns attended part way through; Mr Kerpiniotis left the meeting several times; Mr Nunweek attended towards the end of the meeting to explain the Ascorel system). Mr Symons described the mood of the meeting as tense and raw and he said that Mr Kerpiniotis was viewing the issue (i.e., most of the workers leaving the site) as an industrial issue rather than a safety issue, whereas the unions were concerned about the lack of consultation. Mr Nunweek discussed the Ascorel system. Mr Symons said that he did not hear anything about the crane crew being contacted by HYLC, nor did he witness any form of commotion. Mr Symons did not hear any threats from the unions; did not hear any threat to go national; and did not hear anyone on the union side speak about industrial action.
85 In cross-examination, Mr Symons denied that anyone became angry during the meeting. Mr Symons said no-one at the meeting expressed their shock at anything that had occurred. Everyone remained seated, except when coming into or leaving the room and except for Mr Nunweek during his presentation. Mr Symons said the following in cross-examination:
MR RODER: Yes, sorry. I just – I take it you’re also telling his Honour that there was nothing that was raised in the meeting that – about what the consequences would be in terms of industrial action against the joint venture if they took action to enforce orders against the crane crew? - - - No, there wasn’t any.
And you’re absolutely clear about that. Just wasn’t discussed at all?- - - Well, I never heard it.
Can I suggest to you that it was – that topic was the subject of, if I can put it this way, an eruption in the meeting after Mr Nunweek entered the meeting?- - - No, that wasn’t correct.
And I put it to you that you must have observed it, Mr Symons?- - - Well, I didn’t observe it.
And I take it that you also say to his Honour that you can be absolutely clear that nothing was talked about by any member of the CFMEU about Armageddon following – sorry, I will withdraw that. I take it you also say that there was no reference by any member of the CFMEU to Armageddon in the context of the joint venture taking action against the crane crew with orders against them? - - - No, there wasn’t.
You’re absolutely clear about that as well, are you? Armageddon, no, never heard it.
That word being used, you would have heard it, wouldn’t you? - - - If it had have been used, yes.
Can I – can I suggest to you that it was used and that you did hear it? - - - Well, I didn’t hear it.
I take it – yes. I take it, therefore, that you would also – because you say that you heard none of these topics being raised in any way, that you would deny, therefore, that Mr McDermott and Mr Cartledge said words to the effect that if orders were pursued against the crane crew that there would be industrial action on all joint venture jobs that would follow? - - - There was none of that.
86 Mr Hansen described himself as a crane driver/rigger/dogman employed by HYLC on the site. His direct boss was Mr Nunweek. In approximately September 2013, he became the health and safety representative for the crane crews on the site. He identified various safety problems or disputes on or with respect to the site in relation to the tower crane, the details of which it is not necessary to set out. The safety problems or disputes on or with respect to the site included the need for a proper first aid cage as compared with a non-enclosed cage, general problems with the cranes, a crane jumping a gear and dropping a load as a result, a lack of pre-start discussions amongst the high risk work group, poor treatment of health and safety representatives who raised safety issues, a free fall fault in relation to one of the cranes, a hoisting problem in relation to one of the cranes and faults in the Ascorel system.
87 Mr Hansen attended the meeting which took place in the parklands on 22 November 2013. He said that almost all of the HYLC workforce who worked on day shift were present. There was a vote of no confidence in safety at the site and a vote to go home until things were rectified.
88 Mr Hansen then attended the meeting on site. He made notes of the meeting. He identified the persons at the meeting as follows:
(1) SWSA: Mr Symons and Ms Uglesic;
(2) HYLC: Mr Waters, Mr Kerpiniotis and Mr Johns;
(3) CFMEU: Mr Cartledge, Mr McDermott and Mr O’Connor; and
(4) CEPU: Mr Smith and Mr Buchanan.
Mr Hansen thought that there may have been some other persons present, and that they may have been other health and safety representatives.
89 Mr Hansen could remember a discussion at the meeting about the Ascorel system and about the engagement of spotters as part of a crane crew. He could remember Mr O’Connor, after a message came through on his telephone, saying something along the lines of being there to sort things out and at the same time Mr Nunweek threatening people. A number of people at the meeting said that that was not good and then Mr Johns was trying to calm things down. He did not hear Mr Cartledge or Mr McDermott say anything at the meeting. Someone during the meeting asked whether the workers’ action in walking off the site on that day was “industrial” and Mr Kerpiniotis said that he did not know.
90 Mr Hansen was able to identify and elaborate upon some further matters after he was taken to his notes. Mr Hansen said he did not hear anything during the meeting about CFMEU taking action against HYLC or action nationally against all HYLC jobs if HYLC sought to enforce orders against 16 members of the workforce.
91 In cross-examination, it emerged that Mr Hansen, who is a member of the Union, had been dismissed for misconduct by HYLC. He said that Mr O’Connor was an official of the Union and employed by it. As to the meeting in the parklands, Mr Hansen remembered an official of the CPEU addressing the meeting.
92 Mr Hansen said that nothing was said at the meeting about industrial action from the men as a result of what Mr Nunweek was saying. He does not recall anything being said to the effect that there would be Armageddon if HYLC took steps to enforce the orders against the crane crew. He does not recall anyone from the Union suggesting that there would be hell to pay if the orders were enforced against the workers. He said that he did remember what he called “a bit of an upset” if other members found out that Mr Nunweek was threatening people.
Findings
93 Before the meeting on 22 November 2013, there were a number of safety incidents involving the cranes on the site. There was an incident involving two cranes on 21 November 2013 about which Mr McDermott became so agitated that he later apologised to a SWSA representative about his behaviour. Mr Cartledge was frustrated by the incidents and he was under pressure from his members to provide what he described as a “stronger response”.
94 Mr Cartledge had a personal commitment on the morning of 22 November 2013 and was not at the site at the time of the meeting in the parklands. However, I am satisfied that Mr McDermott and Mr O’Connor were at the site and were directing the workers to the meeting in the parklands.
95 Mr Nunweek said that, at the request of either Mr Kerpiniotis or Mr Johns in the morning of 22 November 2013, he contacted some of the members of the crane crews before his attendance at the meeting later in the morning. He knew that some of the persons he contacted were respondents to the FWC Order. He said that he did not recall whether he told them that they may be in breach of the FWC Order if they did not return to the site. When pressed, he said that there may have been some words to the effect that it might be industrial if the person did not return to the site. Furthermore, he had a conversation with one of the respondents to the FWC Order, Mr Jim Spyro, on the site when he told him that it was good that he was back on the site. When asked if he said that if he had not come back, it would have been industrial, Mr Nunweek said “It may have been”. I find that Mr Nunweek did contact some members of the crane crews and that he conveyed to them that a failure to return to the site could be a breach of the FWC Order.
96 I will make findings in accordance with the sequence of events during the meeting on the site insofar as that is possible, bearing in mind that some of the events were happening almost at the same time.
97 Mr Nunweek said that during his presentation about the Ascorel system, Mr O’Connor appeared to receive a text message on his telephone and that he said that Mr Nunweek had been threatening some Union members with breaching “standing court orders”. I accept that one of the Union representatives received a message during the meeting and made a comment to that effect. That is consistent with the evidence of other witnesses. Mr Kerpiniotis and Mr Waters thought that it was Mr McDermott who made the comment. Mr Waters’ contemporaneous note was that it was Mr McDermott who made the comment. It is not crucial to the issues that it be determined whether it was Mr O’Connor or Mr McDermott. On the one hand, Mr Kerpiniotis said initially that he thought it was Mr O’Connor, but later recalled that it was Mr McDermott. However, the notes he made that evening and Mr Waters’ notes indicate that it was Mr McDermott. On the other hand, neither Mr McDermott nor Mr O’Connor gave evidence. I am disposed to think that Mr Nunweek’s recollection as to who received the message was the most accurate. I find that Mr O’Connor received the message and that he or Mr McDermott or both made the comment.
98 Mr Kerpiniotis said that Mr McDermott and Mr Cartledge said words to the following effect:
We’re down here trying to get things back on track and Nunweek is out there calling crane crews; what’s going on?
99 Mr Waters agreed that something along the following lines could have been said:
Here we are trying to sort this out and Nunweek is on the phone to these guys telling them there will be orders against them.
100 Mr Cartledge’s evidence was to similar effect.
101 I find that when the fact that Mr Nunweek was contacting the crane crews was raised, Mr Cartledge or Mr McDermott or both expressed their displeasure and became loud and aggressive, making free use of expletives. At the same time, Mr Kerpiniotis was trying by his body language and the words he used to calm the situation and to have the meeting return to the agenda. It is difficult to make a precise finding about what Mr Kerpiniotis said. However, having considered all of the evidence, I have decided to accept Mr Kerpiniotis’ evidence that he said words to the effect that the workers had not followed due process, the actions of the workers that morning were for another forum and that the meeting should return to the agenda. In reaching this conclusion, I place some reliance on the fact that Mr Waters said that Mr Kerpiniotis said that some processes had not been followed. I think Mr Kerpiniotis’ comments, and in particular the fact that he would not rule out action against the respondents to the FWC Order, inflamed or further inflamed the situation. It is at this point, or perhaps at the same time, that the alleged threats were made.
102 Before outlining my findings with respect to the alleged threats, it is appropriate to repeat some matters of context. There had been a number of safety issues on the site. There had been a serious or reasonably serious incident involving two cranes on the site on 21 November 2013. One consequence of the incident was that a meeting between SWSA officers and member of the crane crews was arranged for 22 November 2013. The workers on the site, or at least the workers on day shift, met in the parklands opposite the site and resolved to leave the site until the safety issues they were concerned about had been resolved. As I understand it, they were to reconsider the position on the following Monday. Mr Cartledge tended to downplay the Union’s role in the meeting and the action taken by the workers on the site. I think the Union was more actively involved than he indicated. As I have said, Mr McDermott and Mr O’Connor were directing workers to the meeting in the parklands. At the same time the Union representatives were at the meeting on 22 November 2013 apparently trying to resolve the issues of concern, having said as much at the meeting. The situation was very volatile. Mr Waters was asked about the mood of the workers on the site on 22 November 2013. He restricted his answers to the 16 respondents to the FWC Order. He said he did not want to think about their reaction to having the FWC Order enforced against them. He said that it “would have been too much for them” and that “it would have been the straw that broke the camel’s back”. In terms of events after the meeting, the crane crews met representatives of SWSA on 23 November 2013. The workers, or at least some of them, returned to the site on 25 November 2013 and the site was back to partial operations on 26 November 2013 and normal operations on 27 November 2013. HYLC did not take any action to enforce the FWC Order and there was no suggestion that the Union took industrial action in relation to or as a result of the events of 21 or 22 November 2013. The evidence suggested that there are no other joint venture projects involving Hansen Yuncken Pty Ltd and Leighton Contractors Pty Limited.
103 I have decided to accept the evidence of Mr Kerpiniotis, Mr Waters and Mr Nunweek. It is true that they had slightly different recollections and did not all recall the same things, but I thought they were all credible. By contrast, I did not find Mr Cartledge’s evidence to be satisfactory for the reasons I have given. The important matters which have led me to this conclusion are as follows.
104 First, I accept Mr Nunweek’s evidence that Mr Cartledge said that “we will go national”, or words to that effect. It is true that Mr Nunweek made certain concessions in cross-examination about what the Union officials might have been trying to convey, but he never resiled from the fact that at the time he considered what was said to be a threat and that Mr Cartledge had said “we will go national”. This finding about what Mr Cartledge said is strong support for Mr Kerpiniotis’ account of the other comments made by Mr Cartledge.
105 Secondly, I think that there was a commotion at the meeting during which people left their chairs and were speaking loudly and aggressively. That was the evidence of Mr Kerpiniotis, Mr Johns and Mr Waters which I accept. It seems to me that that type of physical “reaction” supports the applicant’s case rather than the respondents’ case. I should say in this context that I found Mr Cartledge’s evidence that he was in a “bit of shock” by what Mr Nunweek had done, and his evidence that he might have got up because he had a bad back, and that he was not speaking in a loud angry voice unconvincing. I also found his evidence that rather than an eruption or flare-up, there was a controlled discussion unpersuasive. I do not find the evidence of the SWSA witnesses helpful in resolving the issue. It is surprising that they could not recall there being a “flare-up” or what it involved. Mr Hansen’s evidence at one point that he did not think Mr Cartledge said anything at the meeting was surprising to say the least. He must have a poor recollection of the meeting. I am satisfied on the basis of the evidence of the witnesses, particularly Mr Kerpiniotis, Mr Johns and Mr Waters, that people were speaking loudly and aggressively. However, the incident did not last very long and I think that explains the failure of the SWSA witnesses to notice it. As Mr Waters said, it was over very quickly.
106 Thirdly, I can more readily accept the evidence of the applicant’s witnesses in light of the failure of Mr McDermott and Mr O’Connor to give evidence. Both were available, both could have given evidence, not only about the meeting they attended, but also about the meeting of the workers in the parklands earlier in the morning and yet neither gave evidence. The role of the Union at the meeting in the parklands might have revealed something about the Union’s attitude on 22 November 2013.
107 Finally, and perhaps most importantly, I accept the substance of the evidence of Mr Kerpiniotis and Mr Waters despite some criticisms which may be made of that evidence. I think Mr Kerpiniotis perhaps thought he had a better recollection of events than he in fact had, and I do not think the threats were uppermost in the participants’ minds at the time they were made and shortly thereafter. As far as Mr Kerpiniotis is concerned, these matters explain his mistake as to the person from whom he obtained Mr Waters’ notes and his mistake as to when he emailed his notes to himself. It also explains his over confidence in his notes representing his recollection of his participation in the meeting. The fact that the threats were not uppermost in the participants’ minds at the time of the relevant threats probably explains the differing recollections of Mr Kerpiniotis, Mr Johns and Mr Waters as to whether the threats were discussed at a debriefing meeting. As far as Mr Waters is concerned, as I have said, I find that he did make his notes during the course of the meeting. Whilst it is true that he seemed to agree in cross-examination with certain propositions put to him about the context in which comments were made, he never resiled from his evidence as to what was said by Mr McDermott.
108 I am satisfied that at the meeting on 22 November 2013 Mr Cartledge said words to the effect that if HYLC took steps to enforce the FWC Order against the respondents to the order, then there would be industrial action on HYLC projects, and that Mr McDermott said there would be industrial action against JV jobs. I am also satisfied that Mr Cartledge said words to the effect that “we will take it national” and that was said in the context of and as part of his threat that if the FWC Order was enforced, there would be industrial action on HYLC jobs. I am satisfied that Mr McDermott said that there would be industrial action against JV jobs if the FWC Order was enforced. I am also satisfied that Mr McDermott said words to the effect that there would be Armageddon and that was said in the context of and part of his threat that if the FWC Order was enforced, then there would be industrial action against JV jobs.
Conclusion
109 In the circumstances, there has been a contravention of subs 343(1) of the FW Act by Mr Cartledge and Mr McDermott. By reason of s 363 of the FW Act, the actions of Mr Cartledge and Mr McDermott are taken to be the actions of the Union. The Union has therefore also contravened subs 343(1) of the FW Act. I will hear the parties as to the orders which now should be made. To facilitate that process, the applicant is to file and serve within seven days draft minutes of order which reflect the conclusions in these reasons and such other orders as the applicant contends should now be made.
I certify that the preceding one hundred and nine (109) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Besanko. |
Associate:
