FEDERAL COURT OF AUSTRALIA

Australian Competition and Consumer Commission v The Construction, Forestry, Mining and Energy Union (No 2) [2017] FCA 1191

REASONS FOR JUDGMENT

MIDDLETON J:

INTRODUCTION

1    In this proceeding, the applicant (‘ACCC’) seeks declarations, injunctive relief, pecuniary penalties, publication and probation orders, and costs against the first respondent (the ‘CFMEU’). This relief is sought under ss 76, 80 and 86C of the Competition and Consumer Act 2010 (Cth) (‘CCA’) and s 21 and s 43 of the Federal Court of Australia Act 1976 (Cth) (‘FCAA’). The ACCC also originally sought relief against the second and third respondents. However, for reasons that are apparent below, there is no need to set out those allegations in detail.

2    In summary, the ACCC primarily alleges that the CFMEU contravened s 45D(1) of the CCA by engaging in particular conduct in concert with union delegates (‘shop stewards’) appointed to each of 11 construction sites in Melbourne. It is alleged that the CFMEU gave instructions to shop stewards (and one CFMEU Organiser) not to allow Boral Resources (Vic) Pty Ltd (‘Boral Resources’) and Alsafe Premix Concrete Pty Ltd (‘Alsafe’) (each or collectively, ‘Boral’) to supply concrete to construction sites (the ‘Ban Against Boral’). It is further alleged that certain shop stewards implemented the Ban Against Boral at those sites (‘s 45D conduct’).

Background

3    From mid-August 2012, the CFMEU and Grocon Pty Ltd (‘Grocon’) were involved in a dispute regarding Grocon’s refusal to accept CFMEU shop stewards as workers’ representatives on Grocon sites. This ongoing dispute led to Grocon and Boral (one of Grocon’s concrete suppliers at the time) initiating separate proceedings in the Supreme Court of Victoria.

4    On 20 November 2014, this proceeding in the Federal Court was commenced by the ACCC against the CFMEU and the second and third respondents. On 3 February 2016, the Court made orders by consent to stay the proceedings against the second and third respondents. On 11 May 2016, the Court delivered judgment rejecting a similar stay application by the CFMEU and a subsequent appeal from this decision was dismissed: see Australian Competition and Consumer Commission v The Construction, Forestry, Mining and Energy Union [2016] FCA 504. As a result, when the trial commenced on 3 October 2016, the Court only heard the ACCC’s allegations in relation to the CFMEU. At the conclusion of the trial, the Court dismissed the proceedings against the second and third respondents without any consideration of the merits of the applications against those respondents.

Allegations against the CFMEU

5    In its amended statement of claim, the ACCC alleged that the CFMEU had committed 13 contraventions of s 45D(1) of the CCA. Section 45D(1) of the CCA contains the following text:

45D Secondary boycotts for the purpose of causing substantial loss or damage

(1) In the circumstances specified in subsection (3) or (4), a person must not, in concert with a second person, engage in conduct:

(a) that hinders or prevents:

(i) a third person supplying goods or services to a fourth person (who is not an employer of the first person or the second person); or

(ii) a third person acquiring goods or services from a fourth person (who is not an employer of the first person or the second person); and

(b) that is engaged in for the purpose, and would have or be likely to have the effect, of causing substantial loss or damage to the business of the fourth person.

6    Of these 13 alleged contraventions, 12 were site-specific, meaning they referred to 12 separate instances of conduct at 12 different construction sites in Victoria. However, the ACCC ultimately abandoned one of these claims, leaving 11 such contraventions being pressed. Further and alternatively, the ACCC pleaded an “omnibus” claim, namely that the conduct at each of those 11 sites, when considered collectively, constituted a single contravention of s 45D(1) of the CCA.

7    Putting the omnibus claim to one side, it is useful to separate the site-specific contraventions into two categories:

(1)    Eight alleged contraventions relating to conduct of the CFMEU and a relevant shop steward (and in one case, the conduct of a CFMEU Organiser) (the ‘conduct allegations’); and

(2)    Three alleged contraventions relating to attempted conduct of the CFMEU and a relevant shop steward (the ‘attempt allegations’).

The conduct allegations

8    The conduct allegations related to the following construction sites:

    Deer Park;

    Hawthorn;

    Lilydale;

    Melbourne City;

    Port Melbourne;

    Richmond;

    Tarneit; and

    Werribee.

9    Each conduct allegation follows a similar pattern: the CFMEU is alleged to have informed the relevant shop steward that there was a ban against the use of Boral concrete on that particular site. The shop steward is then alleged to have acted in concert with the CFMEU by implementing the ban on the site, thus hindering or preventing Boral from supplying concrete to that site. It is claimed that this conduct was engaged in for the (or a) purpose of causing substantial loss or damage to the business of Boral, and that the conduct would have, or was likely to have, the effect of causing substantial loss or damage to the business of Boral.

10    For example, the Deer Park conduct allegation was pleaded as follows (particulars have been omitted):

72.    The Deer Park Site relevantly involved:

72.1    FDC Construction and Fitout Pty Ltd I 120 295 034 (FDC) as the head contractor;

72.2    Anglo Italian as a subcontractor engaged to supply and place concrete;

72.3    Newitt acting as a site supervisor;

72.4    Travers acting as the Shop Steward onsite.

73.    At the Deer Park Site around the time of the February Trades Hall Meeting:

73.1    construction works were underway; and

73.2    Boral Resources was supplying concrete to Anglo Italian.

74.    In or about mid-February 2013 the CFMEU informed Shop Steward Travers of the Ban Against Boral.

75.    On or about 14 February 2013:

75.1    Shop Steward Travers and Newitt were at the Deer Park Site;

75.2    Shop Steward Travers said to Newitt words to the effect:

75.2.1    the CFMEU was having a dispute with Boral; and

75.2.2    the CFMEU would prefer Anglo Italian acquire concrete from a supplier other than Boral.

76.    In or about April 2013:

76.1    Shop Steward Travers and Newitt were at the Deer Park Site;

76.2    Shop Steward Travers said to Newitt words to the effect:

76.2.1     Anglo Italian “shouldn’t have been using Boral”; and

76.2.2     the CFMEU “was still not happy” for Anglo Italian to use Boral.

77.     Shop Steward Travers undertook the actions described in paragraphs 75.2 and 76.2 (Deer Park Implementation) to implement the Ban Against Boral.

78.    In:

78.1     the CFMEU introducing and/or communicating the Ban Against Boral in the circumstances referred to in paragraphs 59, 59C and 60; and

78.2     Shop Steward Travers undertaking the Deer Park Implementation,

the CFMEU acted in concert with Shop Steward Travers (collectively, the Deer Park Conduct).

79.     The Deer Park Conduct hindered or prevented Anglo Italian from acquiring concrete from Boral Resources.

Contravention arising from Deer Park Conduct – Secondary boycott

80.     Each of the CFMEU and Shop Steward Travers engaged in the Deer Park Conduct for the purpose (or alternatively, for purposes that included the purpose) of causing substantial loss or damage to the business of Boral.

81.     The Deer Park Conduct would have, or was likely to have, had the effect of causing substantial loss or damage to the business of Boral.

82.     By reason of the matters referred to in paragraphs 78 to 81, the CFMEU contravened section 45D(1) of the Act.

11    Paragraphs 59, 59C and 60 of the pleading provide as follows (particulars have been omitted):

59.    During the February Trades Hall Meeting:

59.1    Setka said words to the effect that Boral was a “Grocon friendly supplier”; and

59.2    the CFMEU gave an instruction to Shop Stewards and CFMEU organisers to not allow Boral to supply concrete to commercial construction sites in Metropolitan Melbourne (Ban Against Boral).

…

59C.    During the March Trades Hall Meeting, the CFMEU communicated the existence of the Ban Against Boral to Shop Stewards and CFMEU organisers.

60.    At all material times following the February Trades Hall Meeting and the March Trades Hall Meeting:

60.1    the CFMEU intended and expected that Shop Stewards and CFMEU organisers should implement the Ban Against Boral until further notice; and

60.2    Shop Stewards and CFMEU organisers understood that they should implement the Ban Against Boral until further notice.

12    Throughout the pleading, reference is made to the Ban Against Boral as defined in paragraph 59.2 of the pleading.

13    The other conduct allegations are similarly put. The only notable difference is for the Werribee and Tarneit sites, where a CFMEU Organiser (Mr Drew MacDonald) was also alleged to have been involved in the relevant conduct in addition to the relevant shop steward.

14    The conduct allegation in relation to the Werribee site was pleaded as follows (particulars have been omitted):

Werribee Conduct

192.    The Werribee Site relevantly involved:

192.1    construction works which commenced in January 2014;

192.2    Probuild Constructions (Services) Pty Ltd I 054 636 225 (Probuild) as the head contractor;

192.3    Straightline Excavations Pty Ltd I 162 839 554 (Straightline) as a subcontractor to Probuild to perform basement excavation and retention and footings works;

192.4    Tarkan Gulenc (Gulenc) as a director of Straightline;

192.5    BRC as a subcontractor to Straightline engaged to perform piling works;

192.6    Boam as a director of BRC;

192.7    Harisiou acting as the Shop Steward onsite;

192.8    MacDonald acting as the CFMEU organiser responsible for the geographic area that included the Werribee Site.

193.    In about March 2013 the CFMEU informed Shop Steward Harisiou of the Ban Against Boral.

194.    In about March 2013 the CFMEU informed CFMEU organiser MacDonald of the Ban Against Boral.

195.    In about March 2014 BRC decided to acquire concrete for the Werribee Site from Boral Resources.

196.    On or about 16 or 17 April 2014:

196.1    Shop Steward Harisiou and Boam were at the Werribee Site;

196.2    Shop Steward Harisiou asked Boam who he was using for concrete;

196.3    Boam told Shop Steward Harisiou he was using Boral;

196.4    Shop Steward Harisiou told Boam that they would need to discuss it further but would need to wait for MacDonald; and

196.5    Shop Steward Harisiou asked Boam to attend a meeting later that day or the following day.

197.    On or about 16 or 17 April 2014:

197.1    Shop Steward Harisiou, CFMEU organiser MacDonald, Boam and Gulenc attended a meeting at the Werribee Site;

197.2    Shop Steward Harisiou and CFMEU organiser MacDonald told Boam and Gulenc that they had safety concerns regarding Boral’s concrete trucks;

197.3    Shop Steward Harisiou and CFMEU organiser MacDonald told Boam and Gulenc that they were concerned that Boral’s concrete might cause dermatitis;

197.4    the concern referred to in the immediately preceding sub-paragraph was not genuinely held or was readily capable of being prevented by the wearing of gloves; and

197.5    Shop Steward Harisiou told Boam and Gulenc that if BRC used Boral there were going to be roadworthy checks on the concrete trucks.

198.    Shop Steward Harisiou undertook the actions described in paragraphs 196 and 197 (Werribee Shop Steward Implementation) to implement the Ban Against Boral.

199.    CFMEU organiser MacDonald undertook the action described in paragraph 197 (Werribee Organiser Implementation) to implement the Ban Against Boral.

200.    In:

200.1    the CFMEU introducing and/or communicating the Ban Against Boral in the circumstances referred to in paragraphs 59, 59C and 60 above;

200.2    the CFMEU providing the Checklist Instructions in the circumstances referred to in paragraph 62;

200.3    Shop Steward Harisiou undertaking the Werribee Shop Steward Implementation; and/or

200.4    CFMEU organiser MacDonald undertaking the Werribee Organiser Implementation, the following persons acted in concert with each other:

200.5    the CFMEU with Shop Steward Harisiou; further or alternatively

200.6    CFMEU organiser MacDonald with Shop Steward Harisiou; and

200.7    by reason of the matters referred to in paragraph 200.6, the CFMEU with CFMEU organiser MacDonald and Shop Steward Harisiou,

(collectively, the Werribee Conduct).

201.    The Werribee Conduct hindered or prevented BRC from acquiring concrete from Boral Resources.

Contravention arising from the Werribee Conduct – Secondary boycott

202.    Each of the CFMEU, CFMEU organiser MacDonald and Shop Steward Harisiou engaged in the Werribee Conduct for the purpose (or alternatively, for purposes that included the purpose) of causing substantial loss or damage to the business of Boral.

203.    The Werribee Conduct would have, or was likely to have, had the effect of causing substantial loss or damage to the business of Boral.

204.    By reason of the matters referred to in paragraphs 200 to 203, the CFMEU contravened section 45D(1) of the Act.

The attempt allegations

15    The attempt allegations related to the following construction sites:

    Notting Hill;

    Officer; and

    Williams Landing.

16    The attempt allegations are of essentially the same character as the conduct allegations outlined above, save for that fact that the attempted implementation of the ban was unsuccessful in that Boral kept supplying concrete.

17    The Notting Hill attempt allegation (as an example) was pleaded as follows (particulars have been omitted):

149.     The Notting Hill Site relevantly involved:

149.1     Hansen Yuncken Pty Ltd I 063 384 056 (Hansen Yuncken) as the head contractor;

149.2     Oceania as a subcontractor engaged to conduct excavation works and construct the foundations;

149.3     Humphrey acting as production manager onsite;

149.4     Kemp acting as the Shop Steward onsite.

150.     At the Notting Hill Site around the time of the February Trades Hall Meeting:

150.1     constructions works were underway; and

150.2     Boral Resources was supplying concrete to Oceania.

151.     In or about March 2013 the CFMEU informed Shop Steward Kemp of the Ban Against Boral.

152.     On or about 14 March 2013:

152.1     the only concrete Oceania still needed to acquire for the Notting Hill Site was concrete to pour stairs that was due to take place the following day;

152.2     Shop Steward Kemp and Humphrey were at the Notting Hill Site;

152.3     Shop Steward Kemp approached Humphrey and told him words to the effect that “you won’t be using Boral here”.

153.     Shop Steward Kemp undertook the action described in the immediately preceding paragraph (Notting Hill Implementation) to implement the Ban Against Boral.

154.    In:

154.1     the CFMEU introducing and/or communicating the Ban Against Boral in the circumstances referred to in paragraphs 59, 59c and 60 above;

154.2     the CFMEU providing the Checklist Instructions in the circumstances referred to in paragraph 62;

154.3     Shop Steward Kemp undertaking the Notting Hill Implementation,

the CFMEU acted in concert with Shop Steward Kemp (collectively, the Notting Hill Conduct).

155.     Following the Notting Hill Conduct, Oceania continued acquiring concrete from Boral.

Contravention arising from the Notting Hill Conduct – Attempted secondary boycott

156.     The intention of each of the CFMEU and Shop Steward Kemp in engaging in the Notting Hill Conduct included hindering or preventing Oceania from acquiring concrete from Boral.

157.     Each of the CFMEU and Shop Steward Kemp engaged in the Notting Hill Conduct for the purpose (or alternatively, for purposes that included the purpose) of causing substantial loss or damage to the business of Boral.

158.     The Notting Hill Conduct would have, or was likely to have, had the effect of causing substantial loss or damage to the business of Boral.

159.     By reason of the matters referred to in paragraphs 154 to 158 the CFMEU attempted, within the meaning of sections 76(1) and 80(1), to contravene section 45D(1) of the Act.

18    As indicated in the pleading, to make out these attempt allegations, the ACCC relies on s 76(1) and s 80(1) of the CCA. These provisions provide that the Court may order a pecuniary penalty or injunction (respectively) if it is satisfied that a person attempted to contravene a provision such as s 45D(1).

Witnesses

19    A total of 23 witnesses were called, and all were subpoenaed to appear. Of the 23 witnesses, 18 were called by the ACCC, and 5 were called by the CFMEU. The witnesses for each site are set out below (those called by the CFMEU are designated in italics):

20    The ACCC also called Mr Paul Dalton of Boral and Mr Brian McAdam of Grocon to give evidence in relation to the operations of Boral and Grocon respectively. Mr Steven Richardson was also called to give evidence in relation to the Flinders Street site (although this alleged contravention was abandoned by the ACCC during the trial).

21    Furthermore, it is important to note that although there was a shop steward operating at each of the Melbourne City, Lilydale and Williams Landing sites at all relevant times, neither party called those shop stewards to give evidence in this proceeding (those shop stewards were Messrs Lou Vlahogiannis, Gerald Pettifer and Guy Bellofiore respectively).

22    It is convenient here to mention the principle enunciated in Jones v Dunkel (1959) 101 CLR 298 (‘Jones v Dunkel’), relied upon by both parties.

23    Jones v Dunkel provides for the prospect that inferences may be drawn where a party does not call a witness whose evidence may assist in the resolution of a factual dispute. In that case, Kitto J observed (at 308):

…any inference favourable to the plaintiff for which there was ground in the evidence might be more confidently drawn when a person presumably able to put the true complexion on the facts relied on as the ground for the inference has not been called as a witness by the defendant and the evidence provides no sufficient explanation of his absence.

24    In addition, the authorities establish that a court may infer that the evidence of the absence witness would not have assisted the party that failed to call that witness.

25    I would not have expected the ACCC to have called a shop steward, although in some cases it did so. It was likely such a witness would be favourable to the CFMEU and not favourable to the ACCC. I would have expected the CFMEU to call a relevant witness to explain (importantly) the minutes of the meetings referred to in the pleading if it was sought to explain the meetings, contradict the minutes, or put them in context. The CFMEU did not call a witness to undertake this task, and so the interpretation of the minutes is to be undertaken by looking at their text and context. I do not read the minutes other than in accordance with ordinary principles relating to the interpretation of written documents. However, I do proceed on the basis that unless evidence has been called to the contrary, the minutes are to be understood by interpreting in the way I have suggested – by looking at the text and context.

26    However, it is important to observe that the rule in Jones v Dunkel does not permit the filling of gaps in the evidence, or to convert conjecture into inference: see Jones v Dunkel at p 308 (per Kitto J) and 320-1 (per Windeyer J).

27    As a general matter, the ACCC submitted that all the evidence needed to be considered to put in context the evidence of the various statements made by relevant shop stewards and CFMEU officials at the relevant meetings and at the various sites. Significantly, the meetings and statements relied upon by the ACCC occurred at a time when the CFMEU was involved in a serious and on-going dispute with Grocon, with Boral supplying concrete to Grocon, and Boral considered by the CFMEU to be “Grocon friendly”. Therefore, the ACCC stressed the importance of the Court considering all the surrounding circumstances, including the fact of the on-going dispute, the contemporaneous shop stewards’ meetings and the statements made on site by the various shop stewards.

28    So much is uncontentious. However, a number of witnesses had difficulty recollecting details of the conduct and events in question, and their ability to do so was the subject of testing under cross-examination. The implementation of the Ban Against Boral is alleged to have occurred between February 2013 and mid 2014. It is also to be recalled that the shop stewards had different employers and worked at different construction sites. There is no direct evidence that any of the shop stewards discussed amongst themselves the Ban Against Boral. The relevant events and statements about which evidence was adduced occurred some three years ago, and not all events and statements occurred at formal or structured meetings. These circumstances obviously caused some witnesses to have difficulty in remembering details of conversations and the timing of such conversations.

29    The Court has had the advantage of hearing from a number of witnesses, including a number of shop stewards. The ACCC, in calling various shop stewards, despite having the benefit of s 155 examinations in some cases, needed to examine in chief (unless given leave to cross-examine) potentially unfavourable witnesses. I have been mindful of that reality. In addition, statements made by the shop stewards in the witness box need to be tested closely and received with the greatest caution: see eg ASX Operations Pty Ltd v Pont Data Australia Pty Ltd (No 1) (1990) 97 ALR 513, 534 per Lockhart, Gummow and von Doussa JJ.

30    However, this testing should not be translated or treated as putting an added onus or burden on a particular witness. All the evidence needs to be considered, including the contemporary documentation and conduct relating to all the participants.

31    I have generally accepted the evidence of the shop stewards as to the events that occurred on site, in particular in relation to the carrying out of safety checks. The fact remains that no Boral trucks were actually sent away from a site by reason of any conduct of the CFMEU, Mr MacDonald or shop stewards. The real harm to Boral was the threat that Boral trucks would be hindered or delayed in the delivery of concrete. This threat was made known to certain customers, some of whom changed their supplier of concrete away from Boral.

32    I make one other observation relating to the evidence. This proceeding is a penalty proceeding. In light of the application of s 140 of the Evidence Act 1995 (Cth) (‘the Evidence Act’), the principles contained in Briginshaw v Briginshaw (1938) 60 CLR 336 should be adopted by the Court in assessing the evidence individually and collectively. This is particularly pertinent when assessing the import of statements made on the various construction sites. The Court should not discount the evidence of a witness just because they cannot recall the exact words used in a particular conversation. However, to the extent a witness has only a general impression of what was said, the Court should recall that human memory is fallible, and a general impression may arise from a number of sub-conscious reasons. The witness, by the time they are giving evidence, in giving such generalised evidence, may not be giving reliable evidence that reflects a previous statement made or the exact context of a particular earlier conversation.

LEGISLATION AND CASE LAW

Contraventions

33    As indicated above, the central legislative provision in this proceeding is s 45D(1) of the CCA.

34    Therefore, a finding of a breach of s 45D (relevantly) requires the following elements to be made out:

(1)    a “person”;

(2)    “engages in conduct”;

(3)    “in concert” with a second person;

(4)    “hinders or prevents” a third person supplying or acquiring goods or services to/from a fourth person;

(5)    where that conduct is engaged in for the “purpose” of causing substantial loss or damage to the business of the fourth person; and

(6)    where that conduct “would have or be likely to have the effect” of causing substantial loss or damage to the business of the fourth person.

A “person”

35    It is accepted that the term “person” in s 45D(1) can include a trade union such as the CFMEU: Leon Laidely Pty Ltd v Transport Workers Union of Australia (1980) 28 ALR 129, 138 (Lockhart J).

36    Section 45DC(1) of the CCA (entitled “Involvement and liability of employee organisations”) provides:

If 2 or more persons (the participants), each of whom is a member or officer of the same organisation of employees, engage in conduct in concert with one another, whether or not the conduct is also engaged in in concert with another person, then, unless the organisation proves otherwise, the organisation is taken for the purposes of sections 45D, 45DA and 45DB:

(a)    to engage in that conduct in concert with the participants; and

(b)    to have engaged in that conduct for the purposes for which the participants engaged in it.

37    The effect of s 45DC is to create a rebuttable presumption that an organisation of employees has engaged in conduct in contravention of s 45D if two or more participants in the conduct are members or officers of the organisation.

38    In this context, it is to be noted that:

(1)    section 4(1) of the CCA provides that an “organisation of employees” means an organisation that exists or is carried on for the purpose, or for purposes that include the purpose, of furthering the interests of members in relation to their employment;

(2)    the second and third respondents were members and officers of the CFMEU and that the CFMEU Organiser Mr MacDonald was an employee and member of the CFMEU at all material times, and that the relevant shop stewards were members of the CFMEU at all material times.

39    In looking at the CFMEU and its conduct, it is necessary to assess the minds of the relevant persons who directed the relevant conduct. In this proceeding, it was the executives of the CFMEU involved in the Ban Against Boral, which included the second and third respondents and Mr MacDonald.

“Engages in conduct”

40    Section 4(2)(a) of the CCA states that a reference to engaging in conduct shall be read as a reference to

…doing or refusing to do an act, including the making of, or the giving effect to a provision of, a contract or arrangement, the arriving at, or giving effect to a provision of, an understanding or the requiring of or giving of, a covenant;…

41    It is to be noted that the definition of engaging in conduct is not restricted to the making of, or to the giving effect to, an arrangement or understanding.

Acting “in concert”

42    Speaking generally, to act “in concert” normally means to act in a coordinated or organised way.

43    The ACCC relied upon the definition of “in concert” espoused in Tillmanns Butcheries Pty Ltd v Australasian Meat Industry Employees’ Union (1979) 27 ALR 367 (‘Tillmanns’) by Bowen CJ at 373:

Acting in concert involves knowing conduct, the result of communication between the parties and not simply simultaneous actions occurring spontaneously.

44    The ACCC further contended that it was not necessary to establish a “common purpose” for persons to be acting “in concert”. There is a distinction between “purpose” and “motive”. The “purpose” refers to the effect sought to be achieved by the conduct, not the motive of those involved; the “motive” is the reason for seeking an outcome, rather than the outcome sought to be achieved: see News Ltd v South Sydney District Rugby League Football Club Ltd (2003) 215 CLR 563, 573 (Gleeson CJ).

45    The ACCC relied upon Jewel Food Stores Pty Ltd v Amalgamated Milk Vendors Assn Inc (1989) 24 FCR 127, 132-3 (Sheppard and Wilcox JJ) in relation to “common purpose”. In that case, their Honours rejected the proposition that a “common purpose” was necessary for persons to be acting “in concert” (in the context of the precursor to s 45D(1) of the CCA). Their Honours considered that

[p]urpose does not at that stage come into the matter. It does become critical eventually because the paragraph will not apply unless the conduct in which the respondents have engaged was engaged in for the purpose of causing substantial loss and damage to the appellant’s business. But that is a separate question to which the later submissions made by counsel for the respondents are directed.

46    However, the CFMEU pointed to subsequent authorities that did require a common purpose to be established before persons could be said to be acting “in concert”. For example, in Australasian Meat Industry Employees Union v Meat and Allied Trades Federation of Australia (1991) 32 FCR 318 (‘AMIEU’), French J (as he then was) held at 334 (in relation to s 45D):

The phrase “in concert” has been construed variously in the cases as involving knowing conduct, the result of communication between the parties and not simply simultaneous actions occurring spontaneously. It has been said to involve contemporaneity and a community of purpose which requires a consensual element: see Tillmans Butcheries Pty Ltd v Australasian Meat Industry Employees’ Union (1979) 42 FLR 331 at 337; Australasian Meat Industry Employees’ Union v Mudginberri Station Pty Ltd (1985) 9 FCR 425 at 433. Whatever the full scope of the term it does not apply to groups of employees of different employers who, as the result of requests by a common union, engage in similar conduct for their own respective purposes in response to similar issues of remuneration, conditions of employment, hours or work or working conditions.

(Emphasis added).

47    The phrase “in concert” has also been considered in other contexts. In relation to s 12(2) and s 15(1) of the Corporations Act 2001 (Cth) (‘Corporations Act’), Stevenson J (the trial judge) in Perpetual Custodians Ltd v IOOF Investment Management Ltd [2013] NSWSC 231 (‘Perpetual Custodians’) at [102] held that, for two parties to be acting “in concert”:

(1)    there must at least be an understanding between them as to their common purpose of object and a mere coincidence of separate acts is insufficient;

(2)    there must be some knowing conduct the result of communications between parties and not merely simultaneous actions occurring contemporaneously;

(3)    there must be an understanding between the parties as to a common purpose of object;

(4)    there must be contemporaneity and community of purpose;

(5)    a concurrence of views about the merits of a particular resolution proposed by another person is not sufficient; and

(6)    the understanding between the parties as to the common purpose or object must be consensual and there must be some adoption of it.

48    The New South Wales Court of Appeal in Perpetual Custodians did not disturb Justice Stevenson’s analysis.

49    There is also authority for the proposition that degrees of time and space are important in determining whether persons are acting “in concert”. In AMIEU, Gray J stated that:

Greater difficulty is experienced when the separate acts are performed at separate locations and at different times. Difficult question arise as to the point in the causative chain of events at which a person whose act has contributed to some extent will be treated as not having acted in concert with those whose acts were performed more closely in time and space to that event.

50    In the context of union advocacy, Gray J continued:

The difficulties in the concept of “in concert” are acute when the acts of one person are confined to advising, requesting, encouraging or inciting the other, who responds by performing the desired act. In the present case, the learned trial judge found that AMIEU by its officers advocated that stoppages of work should occur on the days on which they occurred, and that members who voted in favour of those stoppages at the preceding meetings were aware of that advocacy. In my view, such a situation will not ordinarily give rise to the conclusion that the trade union … and the employees who are its members … have acted in concert if the employees cease work.

51    Relevantly, Gray J noted that:

The position of a trade union might be different if its rules empowered its governing committees or its officers to direct the taking of action, and obliged its members to comply with such directions. In such a case, the giving of the direction and the compulsory observance of it would go to make up the end result.

52    In my view, there must be a common purpose, or community of purpose, for there to be an acting “in concert” in the application of s 45D(1) of the CCA. I adopt the approach taken by French J in AMIEU. There needs to be a joint enterprise to be acting in concert – there cannot be such an enterprise unless the parties have a “community of purpose”. The purpose here is that alleged by the ACCC, and the issue of different purposes mentioned by French J (as responding to different issues of remuneration, or conditions of employment) does not arise in the circumstances of this proceeding. Whilst there were different employers and groups of employees, the case brought by the ACCC is site specific (putting aside the omnibus claim), and the purpose alleged (if proved) would be a ‘community of purpose’ to implement the Ban Against Boral. I will return later to the issue of the nature of the communication made to the shop stewards by the CFMEU and whether it was a recommendation, request, advice or instruction.

“Hinders or prevents”

53    The phrase “hinders or prevents” was not particularly controversial as between the parties. Importantly, in its closing submissions at paras 338-9, the CFMEU accepted the following:

It is accepted that conduct, if it were proven to have occurred, in the nature of turning away Boral trucks from a concrete pour, or deliberately occupying so much time in undertaking a bogus safety check as to cause the concrete in an agitator to spoil would constitute conduct which prevents supply.

It is also accepted that a clear statement that either of the above was going to occur in the future (ie that trucks “will be turned away” or that trucks will be subjected to a long, and deliberately slow – and fake – safety check such that their load would spoil) could constitute conduct capable of hindering or perhaps preventing supply.

54    In a practical sense for the purposes of this proceeding, this meant that the notion of “hinders or prevents” would turn on evidentiary considerations.

55    However, as the evidence unfolded, it became apparent (as I have indicated) that no Boral truck was actually turned away by the use of a bogus safety check. The true complaint was that statements were made effectively threatening bogus safety checks. It is this characterisation of the conduct the Court proceeds to consider, not the conduct of actually turning away Boral trucks.

The “purpose” of causing “substantial loss or damage”

56    In the context of s 45D(1), the word “substantial” is used in the relative sense. Whether loss or damage will be “substantial” will depend upon the nature and scope of the relevant business. At the very least, the term means real or of substance and not insubstantial or nominal: Tillmanns at 382 (Deane J).

57    Furthermore, the purpose of causing substantial loss or damage need not be the only purpose if the conduct was engaged in for purposes which include that purpose. Nor must it be a substantial purpose – it only needs to be a purpose: CCA s 45D(2). This is relevant as the CFMEU advanced a “positive safety case”, that the purpose for the impugned conduct was for the promotion of worker safety. In light of s 45D(2), even if I was satisfied of the safety case, if the ACCC was successful in persuading the Court that another purpose was to cause substantial loss and damage, this would be sufficient.

Conduct that “would have or be likely to have” the effect of causing substantial loss or damage

58    The words “substantial loss and damage” have the same content as relating to purpose. To elaborate further, it is not necessary to show that the loss or damage would be a “major blow” to Boral’s business: see Building Workers’ Industrial Union Of Australia And Others V Odco Pty Ltd (1991) 29 FCR 104, 140 (‘BWIU’). Further, the Court is not confined to looking just at each site: see BWIU at 140. The enquiry looks at Boral’s overall business.

59    The words “would have or be likely to have” permit the Court to look not only at what has been established on the facts but also to infer from those facts what was likely to be the consequence of the conduct, looking at the position at or about the time the conduct was engaged in: TPC v TNT Management Pty Ltd (1985) 6 FCR 1 at 50 (Franki J). The reference to “would be likely to have” is meant to convey a lower degree of likelihood than “would have”. “Likely” in this context is not synonymous with more likely than not and it will suffice if the conduct is, in the circumstances, such that there is a real chance or possibility that it will, if pursued, cause substantial loss or damage: Tillmanns at 382 (Deane J).

60    In determining the likelihood of conduct to have a prohibited effect, Deane J in Tillmanns held that a Court should not restrict itself to a consideration of the actual effects of that conduct when it occurred:

In my view, it was neither necessary nor correct to determine whether the conduct would have had or have been likely to have had the effect specified in sec. 45D(1) by reference only to the effect of the conduct in the limited period up until the time when the intervention of the injunction stayed its intended indefinite course. The effect of the conduct during that limited period is, of course, relevant to determining whether, if permitted to continue indefinitely, the conduct of the Union and the personal respondents in imposing and procuring enforcement of the black ban would have had or would have been likely to have had the effect of causing substantial loss or damage to the appellant’s business. It is not, however, necessarily determinative of it.