FEDERAL COURT OF AUSTRALIA

Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2018] FCA 42

ORDERS

THE COURT ORDERS THAT:

1.    The parties are to bring in Short Minutes of Orders to give effect to these reasons within 14 days.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1    In March 2016 the Director of the Fair Work Building Industry Inspectorate filed in this Court an Originating Application and a Statement of Claim.

2    The Construction, Forestry, Mining and Energy Union (the “CFMEU”) and thirteen individual officers or employees of the Union were named as Respondents. A series of amendments were made to the pleading, culminating in the Second Amended Originating Application filed in May 2017, the Third Further Amended Statement of Claim also filed in May 2017, and Third Amended Defences or (for the Thirteenth Respondent) a Third Further Amended Defence filed in June 2017.

3    The amendments to the pleadings in May 2017 abandoned the claims made against six of the individual Respondents (the Fourth, Sixth, Seventh, Tenth, Eleventh and Twelfth Respondents).

4    In February 2017, the Australian Building and Construction Commissioner (the “Commissioner”) was substituted as the Applicant in the proceeding.

5    In very summary form, the Commissioner seeks in the Second Amended Originating Application declaratory relief in respect to those contraventions that were ultimately put in issue at the hearing:

    contraventions of s 340 of the Fair Work Act 2009 (Cth) (the “Fair Work Act”), such contraventions alleged to have occurred on 5 June 2014;

    contraventions of s 343 of the Fair Work Act, such contraventions alleged to have occurred on 5 June 2014 and 11, 16 and 17 March 2015;

    contraventions of s 494 of the Fair Work Act, such contraventions alleged to have occurred on 11 and 12 March 2015; and

    contraventions of s 500 of the Fair Work Act, such contraventions alleged to have occurred on 11 March 2015.

Declarations are also sought as to accessorial liability pursuant to s 550 of the Fair Work Act. Penalties are sought pursuant to s 546 against all of the remaining Respondents except Mr Garvey.

6    Again in very summary form, for present purposes it is sufficient to note that the dispute between the parties largely focusses upon building sites at Rhodes (the “Rhodes Site”) and Wolli Creek (the “Wolli Creek Site”) in Sydney. These were building sites at which construction work was being undertaken by companies within the BKH Group (“BKH”), that Group including:

    Wexdek Formwork Pty Ltd, trading as BKH Contractors (“BKH Contractors”);

    Conbuild Services Pty Ltd (“Conbuild”);

    Ultrabuild Group Pty Ltd (“Ultrabuild”);

    Concrete Structures Group (“CSG”); and

    Corach Holdings Limited.

BKH Contractors had been engaged to perform concrete placement work at the Rhodes Site. Conbuild and Ultrabuild also supplied labour to that project. CSG had been engaged to perform concrete placement and formwork at the Wolli Creek Site. BKH Contractors, Conbuild and Ultrabuild supplied labour to CSG for that project. BKH was also performing work at other sites, including at Darling Harbour and Barangaroo in Sydney.

7    Of relevance to the dispute was the fact that by mid-2014 an existing enterprise agreement was due to expire. The Commissioner alleges that the CFMEU by one or other of the individual Respondents made demands upon BKH, requiring it to sign an enterprise agreement on terms demanded by the CFMEU. At the heart of the dispute was the action taken by one or other of the Respondents to secure agreement to the terms of the enterprise agreement the Union was proposing and, in particular, agreement as to the payment to workers of a site allowance.

8    In December 2016 an Interlocutory Application was filed seeking to have various paragraphs of the Amended Statement of Claim struck out. The bases upon which the Interlocutory Application sought such relief founded upon submissions that:

    there was no “workplace right” able to be relied upon in the absence of a valid Notice of Employee Representational Rights (sometimes referred to as a “NERR”) having been issued; and

    the pleadings as to accessorial liability were deficient.

In respect to this Interlocutory Application, it has been concluded that:

    the former submission is rejected.

The latter issue as to the adequacy of the pleadings was overtaken by amendments effected, including the amendments effected by the Third Further Amended Statement of Claim.

9    Many of the particular contraventions which were initially pleaded were, during the course of the hearing, ultimately admitted. In respect to those contraventions which remain to be resolved, it has been concluded (in summary form) that:

    the contravention of s 494 alleged against Mr Luke Collier for entry without an entry permit on 11 March has been made out;

    the contraventions of s 500 alleged against Messrs Mansour Razaghi and Benito Manna have been made out;

    the contraventions of ss 340 and 343 against Messrs Darren Taylor and Robert Kera have been made out; and

    the contraventions alleged against the CFMEU have been made out.

10    In order to explain the basis upon which these conclusions have been reached, it is necessary to more fully explore:

    the evidence;

    the provisions of the Fair Work Act of relevance;

    the adequacy of the pleadings as against the CFMEU;

    the terms of the competing enterprise agreements; and

    the facts of relevance to the contraventions remaining to be resolved.

It is thereafter necessary to resolve the remaining alleged contraventions by reference to the facts as found and the statutory provisions of relevance.

THE EVIDENCE

11    There was filed on behalf of the Applicant a series of either affidavits or statements.

12    The following table summarises the witnesses of the Applicant which provided affidavits that were read at the hearing, the positions occupied by each of these witnesses at the relevant time and whether they were cross-examined:

13    A number of the Applicant’s witnesses did not provide affidavits but did provide witness statements. These witnesses gave oral evidence during the period from 11 to 19 April 2017 and the statements were tendered as exhibits. These witnesses and the positions they occupied were as follows:

14    The Respondents on 20 April 2017 elected to waive any privilege as to self-incrimination. Affidavits were filed. The Respondents’ witnesses and whether they were cross-examined may be summarised as follows:

15    An expert report prepared by Mr Jonathan O’Brien was also filed on behalf of the Respondents. Mr O’Brien was cross-examined on the contents of that report on 2 June 2017. Messrs Collier and Kera did not give evidence.

16    The election made by one or other of the Respondents was, not surprisingly, made after the conclusion of the evidence in chief of the witnesses called for the Applicant and their cross-examination. An adjournment was occasioned for the Respondents to thereafter file such evidence as they wished to rely upon having made their election to waive privilege.

17    It should nevertheless be noted that an adjournment for such a protracted period was not warranted. In future cases it may well be expected that Respondents will be called upon to make an election and – in the event that privilege is waived – to file such evidence as they wish to rely upon within a short period of time and for the hearing to continue thereafter relatively smoothly. An adjournment for a protracted period, rather than a matter of days (in the absence of satisfactory reason) may be expected to be the exception rather than the rule.

THE FAIR WORK ACT

18    Those provisions of the Fair Work Act which assumed prominence in the present proceeding have been canvassed in many previous decisions of this Court.

19    But a brief overview of the most relevant provisions now in issue nevertheless remains prudent.

The making of an agreement – the need for notice & voting

20    Sections 172 and 173 of the Fair Work Act provide for the manner in which an enterprise agreement is to be made and the requirement to give notice of employee’s representational rights.

21    Section 172 provides in relevant part as follows:

Single-enterprise agreements

…

(2)    An employer, or 2 or more employers that are single interest employers, may make an enterprise agreement (a single-enterprise agreement):

(a)    with the employees who are employed at the time the agreement is made and who will be covered by the agreement; or

…

22    Section 173(1) provides as follows:

Notice of employee representational rights

Employer to notify each employee of representational rights

(1)    An employer that will be covered by a proposed enterprise agreement that is not a greenfields agreement must take all reasonable steps to give notice of the right to be represented by a bargaining representative to each employee who:

(a)    will be covered by the agreement; and

(b)    is employed at the notification time for the agreement.

Section 174 provides for the content and form of a notice given under s 173.

23    Section 181 thereafter provides for a vote to be taken in respect to a proposed agreement. That section provides as follows:

Employers may request employees to approve a proposed enterprise agreement

(1)    An employer that will be covered by a proposed enterprise agreement may request the employees employed at the time who will be covered by the agreement to approve the agreement by voting for it.

(2)    The request must not be made until at least 21 days after the day on which the last notice under subsection 173(1) (which deals with giving notice of employee representational rights) in relation to the agreement is given.

(3)    Without limiting subsection (1), the employer may request that the employees vote by ballot or by an electronic method.

24    When undertaking a review of the provisions as to the making of an enterprise agreement, Jessup J in National Tertiary Education Industry Union v Swinburne University of Technology [2015] FCAFC 98, (2015) 232 FCR 246 at 253 summarised their effect as follows:

[22]    Putting these provisions together in the chronological order which is implied by their terms, the following is the scheme contemplated. First, the employer agrees to bargain or initiates bargaining. Secondly, there is then a period of 14 days during which the employer gives the representational rights notices to the employees who were employed when the employer agreed to bargain. Thirdly, bargaining takes place. Although that process is not directly relevant to the subject here being considered, it should be noted that at least 21 days must pass after the giving of the last representational rights notification and the employer’s request under s 181(1). But there appears to be no outer limit to that period. Fourthly, the employer gives a copy of the agreement upon which it is proposed that the employees should vote, and other required materials, to the employees employed at that time. Fifthly, no more than seven days later, the employer requests the employees who are employed at that time to approve the agreement by voting for it. Sixthly, when a majority of those employees who cast a valid vote approve the agreement, the agreement is made.

The taking of adverse action – s 340

25    Section 340 of the Fair Work Act provides as follows:

Protection

(1)    A person must not take adverse action against another person:

(a)    because the other person:

(i)    has a workplace right; or

(ii)    has, or has not, exercised a workplace right; or

(iii)    proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; or

(b)    to prevent the exercise of a workplace right by the other person.

(2)    A person must not take adverse action against another person (the second person) because a third person has exercised, or proposes or has at any time proposed to exercise, a workplace right for the second person’s benefit, or for the benefit of a class of persons to which the second person belongs.

26    Section 341 sets forth the meaning of “workplace right” and relevantly provides as follows:

Meaning of workplace right

Meaning of workplace right

(1)    A person has a workplace right if the person:

…

(b)    is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument; or

…

Meaning of process or proceedings under a workplace law or workplace instrument

(2)    Each of the following is a process or proceedings under a workplace law or workplace instrument:

…

(e)    making, varying or terminating an enterprise agreement;

…

Of present relevance is the exercise of the “workplace right” to “initiate … a process … under a workplace law” (s 341(1)(b)), namely the making of an enterprise agreement (s 341(2)(e)).

27    For the purposes of s 341(1)(b) it is sufficient if a person proposes to initiate a process under a workplace law: Tattsbet Ltd v Morrow [2015] FCAFC 62, (2015) 233 FCR 46 (“Tattsbet”). Ms Morrow there sought to argue (inter alia) that “adverse action” had been taken in circumstances where she was deemed to be an employee by reason of the Superannuation Guarantee (Administration) Act 1992 (Cth). However, on the facts of that case, the Act did not apply to Ms Morrow as a “workplace law” for the purposes of s 341(1)(a). She also sought to argue, in the alternative, that she had been prevented from exercising a “workplace right” for the purposes of s 341(1)(b). Within that context, Jessup J observed (at 73):

[107]    Although the respondent could not succeed under s 341(1)(a) of the [Fair Work Act], that conclusion does not put her out of court under para (b) of the subsection. That paragraph is not dependent on the existence of an entitlement. It depends, rather, upon the person’s proposal to initiate a process or proceedings under a workplace law. It seems to have been accepted below that, in point of fact, the [Superannuation Guarantee (Administration) Act 1992 (Cth)] did provide scope for a person in the position of the respondent to initiate a process or proceedings to have determined, one way or the other, whether she was entitled to superannuation. In such a setting, the process or proceedings which the respondent proposed to initiate, or to participate in, would, putatively, have been based on her contention that she was an employee. In the view I take, that contention would have been unmeritorious, but the [Superannuation Guarantee (Administration) Act 1992 (Cth)] was a “workplace law” as defined for the purposes of the respondent’s proposal. She would have been seeking to establish an entitlement under legislation which was a workplace law in relevant respects. The operation of s 341(1)(b) is not limited to proposals to initiate processes or proceedings which would lead to the upholding of the right or entitlement sought to be vindicated.

Chief Justice Allsop and White J agreed. Of importance, it may be noted, was that Jessup J regarded it as sufficient for a case to fall within s 341(1)(b) that Ms Morrow “propos[ed] to initiate a process … under a workplace law”.

28    Section 341 of the Fair Work Act defines those circumstances in which a person takes “adverse action” against another person and provides in relevant part as follows:

Meaning of adverse action

(1)    The following table sets out circumstances in which a person takes adverse action against another person.

(2)    Adverse action includes:

(a)    threatening to take action covered by the table in subsection (1); and

(b)    organising such action.

…

29    When considering the terms of Item 7(c) in s 342(1), Jessup J in Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2017] FCA 62 (“Webb Dock Case”) concluded:

[48]    The next question is whether Messrs Myles and Hall took adverse action against McConnell Dowell. The only provision of the [Fair Work Act] that would be relevant to that question was item 7(c) in the table to s 342(1). Although the parties’ agreement did not descend to particulars, they did agree that McConnell Dowell was an “independent contractor”, and that the action taken by Messrs Myles and Hall on 5 March 2015 was adverse action against it within the meaning of s 342(1). This can only have been a reference to the action that had the effect, directly or indirectly, of prejudicing McConnell Dowell in relation to a contract for services. McConnell Dowell was a party to two such contracts, one with the Port of Melbourne Corporation and one with Coastal Steel. There is no agreement that any employee of McConnell Dowell was prevented, or dissuaded, from entering the site, but it is agreed that the respondents’ blockade had the effect of preventing all vehicles from entering the site. This was, in my view, sufficient to engage the terms of item 7(c).

Messrs Myles and Hall were officers and employees of the CFMEU. McConnell Dowell Constructors (Aust) Pty Ltd was the head contractor for building works in connection with the project in issue in that case.

An intent to coerce – s 343

30    Section 343 of the Fair Work Act provides as follows:

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 a 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.

31    The requirements to be satisfied to establish an “intent to coerce” have been reviewed in a number of authorities of this Court, including Australian Building and Construction Commissioner v Hall [2017] FCA 274. Those authorities establish the following propositions.

32    First, two elements must be established to prove an “intent to coerce” – there must be an intent to exert pressure that in a practical sense will negate choice and the pressure must involve conduct that is unlawful, illegitimate or unconscionable: Seven Network (Operations) Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2001] FCA 456 at [41], (2001) 109 FCR 378 at 388 per Merkel J (“Seven Network”). That case concerned threats by the Union to take industrial action that would interfere with the televising of football matches and the Olympic Games in August and September 2000, in contravention of s 170NC(1) of the Workplace Relations Act 1996 (Cth) (the “Workplace Relations Act”). Section 170NC(1) provided as follows:

A person must not:

(a)    take or threaten to take any industrial action or other action; or

(b)    refrain or threaten to refrain from taking any action;

with intent to coerce another person to agree, or not to agree, to:

(c)    making, varying or terminating, or extending the nominal expiry date of, an agreement under Division 2 or 3; or

(d)    approving any of the things mentioned in paragraph (c).

Justice Merkel reviewed the authorities with respect to an intention to coerce and summarised the position as follows (at 388):

[41]    The above cases establish that there must be two elements to prove “intent to coerce” under s 170NC(1). First, it needs to be shown that it was intended that pressure be exerted which, in a practical sense, will negate choice. Second, the exertion of the pressure must involve conduct that is unlawful, illegitimate or unconscionable. The requirement that the pressure exerted be unlawful, illegitimate or unconscionable must be considered in the context of the scheme of the Act and of the fact that, subject to the immunity in respect of protected industrial action under s 170MT of the Act, many forms of industrial action are unlawful: see Ansett Transport Industries (Operations) Pty Ltd v Australian Federation of Air Pilots [1991] 1 VR 637.

This passage was endorsed by Buchanan and Griffiths JJ in Victoria v Construction, Forestry, Mining and Energy Union [2013] FCAFC 160 at [70] to [72], (2013) 218 FCR 172 at 187. There under consideration was s 343 of the Fair Work Act. Buchanan and Griffiths JJ held that the presumption imposed by s 361 applied: [2013] FCAFC 160 at [54], (2013) 218 FCR at 185.

33    As to the former of these two elements – the need for the pressure to “negate choice” – a “high degree of compulsion” is required: National Tertiary Education Industry Union v Commonwealth of Australia [2002] FCA 441, (2002) 117 FCR 114. Again in the context of considering s 170NC of the Workplace Relations Act, Weinberg J there also reviewed the authorities and concluded (at 143):

[103]    The approach to the expression “intent to coerce” taken in each of the authorities set out above makes it clear that what is required is an intent to negate choice, and not merely an intent to influence or to persuade or induce. Coercion implies a high degree of compulsion, at least in a practical sense, and not some lesser form of pressure by which a person is left with a realistic choice as to whether or not to comply.

34    As to the latter of these two elements – the need for the pressure to involve conduct that is “unlawful, illegitimate or unconscionable” – it is not necessary to establish that a person intended to act unlawfully. The determination of whether action engaged in was unlawful is determined objectively: Esso Australia Pty Ltd v Australian Workers’ Union [2016] FCAFC 72, (2016) 245 FCR 39 at 84 to 87. Buchanan J (with whom Siopis J agreed) there observed:

[176]    In my view, it should not be accepted that it is necessary to establish that a person intended to act unlawfully etc. Nor would it be a defence to show that a person believed their action would be, or was, lawful.

…

[194]    … The requirement of intent applies to the purpose of negating choice. The additional element that the means employed be unlawful, etc involves an objective test. That approach is consistent with the common law origins of the notion of coercion which can be traced back to the tort of economic duress, as explained in the cases to which I referred earlier. In that common law context, the notion of purpose, or intent, applies to the first element but not the second. There is no reason to think that the statutory adoption of the common law concept has altered its nature. …

A little later his Honour further observed (at 89):

[200]    … an examination of intent is relevant to the first element of coercion, and an examination of objective circumstances is relevant to the second element.

See also Esso Australia Pty Ltd v The Australian Workers’ Union [2017] HCA 54 at [59] to [61] per Kiefel CJ, Keane, Nettle and Edelman JJ. Similarly, in Seven Network [2001] FCA 456, (2001) 109 FCR 378 Merkel J referred to Giorgianni v The Queen (1985) 156 CLR 473 at 504 to 507 and continued on to observe (at 387):

[35]    Similarly, the intent required for the purposes of s 170NC relates to actual knowledge of the circumstances that made the conduct in question coercive conduct. For the reasons stated in Giorgianni, if the person in question had such knowledge, that person will not escape liability by establishing that he or she believed that the conduct was lawful. ...

35    Second, a person engages in conduct intended to coerce a person even if the conduct has one or several other purposes or objectives: Hanley v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2000] FCA 1188 at [45], (2000) 100 FCR 530 at 541 per Ryan, Moore and Goldberg JJ. Section 360 of the Fair Work Act only reinforces this conclusion.

The right of entry & the exercise of OHS rights – ss 484 & 494

36    Section 484 of the Fair Work Act appears in Part 3-4 of the Act. The object of Pt 3-4 are set forth as follows in s 480:

Object of this Part

The object of this Part is to establish a framework for officials of organisations to enter premises that balances:

(a)    the right of organisations to represent their members in the workplace, hold discussions with potential members and investigate suspected contraventions of:

(i)    this Act and fair work instruments; and

(ii)    State or Territory OHS laws; and

(b)    the right of employees and TCF award workers to receive, at work, information and representation from officials of organisations; and

(c)    the right of occupiers of premises and employers to go about their business without undue inconvenience.

The “balance” there referred to was addressed as follows by Allsop CJ, White and O’Callaghan JJ in Australian Building and Construction Commissioner v Powell [2017] FCAFC 89, (2017) 268 IR 113 at 122 to 123:

[45]    The balance referred to is of competing “rights”. Certainly the “right” in para (c) is not a strict legal right. Importantly … the “right” in para (a) is “of organisations” to do certain things including “investigate suspected contraventions of State or Territory OHS laws”. Certainly the expression of the matter in para (a) is support for the proposition that the object of the Part was to balance rights one of which was that of unions, through their officials, to come on to premises for purposes of the kind dealt with in State and Territory legislation that in terms conferred rights on union officials to enter premises for the kinds of purposes referred to in para (a) in s 478 …

37    Section 484 provides as follows:

Entry to hold discussions

A permit holder may enter premises for the purposes of holding discussions with one or more employees or TCF award workers:

(a)    who perform work on the premises; and

(b)    whose industrial interests the permit holder’s organisation is entitled to represent; and

(c)    who wish to participate in those discussions.

38    The “purpose” of a person’s entry is to be assessed objectively having regard to all the circumstances, including a person’s stated purposes in seeking entry: Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2015] FCA 1293 (“DFWBII v CFMEU”). White J there concluded:

[71]    The purpose of a person’s entry in the context of s 484 is to be assessed objectively having regard to all the surrounding circumstances. The statements made by the person at the time of the entry, or subsequently, may be relevant to that assessment but are not conclusive. The person’s conduct and other circumstances after the entry may be more revealing of the person’s actual purpose or purposes.

39    In commenting upon these observations, Charlesworth J in Director of the Fair Work Building Industry Inspectorate v McDermott [2016] FCA 1147 said:

[109]    It was submitted on behalf of Mr Sloane that this passage should not be followed because it advances an objective test for the assessment of a permit holder’s purpose for entering premises. The passage, it was submitted, is inconsistent with the reasons of Dowsett J in [Construction, Forestry, Mining and Energy Union v John Holland Pty Ltd [2010] FCAFC 90, (2010) 186 FCR 88] on appeal, as approved by the Full Court in [Bragdon v Director of the Fair Work Building Industry Inspectorate [2016] FCAFC 64, (2016) 242 FCR 46]. This Court was informed that the respondents in DFWBII v CFMEU had commenced an appeal from that judgment. Counsel for Mr Sloane submitted that delivery of judgment in this matter should be delayed pending the finalisation of that appeal. In my opinion, it is neither appropriate nor necessary to delay judgment in this matter pending the resolution of the appeal.

[110]    I proceed on the basis that the word “purpose” in s 484 of the [Fair Work Act] is a reference to the subjective purpose of the permit holder and that the enquiry to be undertaken is one involving an assessment of the permit holder’s state of mind. Although it is not necessary for the Director to prove, as an element of a contravention of s 500 of the [Fair Work Act], that the workers at the Site objectively had the characteristics prescribed in s 484 of the [Fair Work Act], the characteristics of the workers, as understood by the alleged contravenor, will be relevant in determining whether the contravenor exercised or was seeking to exercise a right of entry to premises for the subjective purpose of holding discussions with them: Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2015] FCA 1287, [156] – [158] (White J).

[111]    It is trite to say that a finding as to a person’s state of mind is a finding of fact to be made upon an assessment of all the surrounding circumstances. Read in the context of his Honour’s reasons for judgment in DFWBII v CFMEU as a whole, I do not understand the passage of White J extracted at [108] above to express any principle to the contrary.

40    Section 494(1) of the Fair Work Act provides as follows:

An official of an organisation must not exercise a State or Territory OHS right unless the official is a permit holder.

Proof of intent & the reverse onus of proof – ss 360, 361 & 363

41    Section 360 of the Fair Work Act provides as follows:

Multiple reasons for action

For the purposes of this Part, a person takes action for a particular reason if the reasons for the action include that reason.

42    Section 361, an oft invoked provision in industrial cases, provides as follows:

Reason for action to be presumed unless proved otherwise

(1)    If:

(a)    in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and

(b)    taking that action for that reason or with that intent would constitute a contravention of this Part;

it is presumed that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.

(3)    Subsection (1) does not apply in relation to orders for an interim injunction.

43    Section 363(1) provides as follows:

Actions of industrial associations

(1)    For the purposes of this Part, each of the following is taken to be action of an industrial association:

(a)    action taken by the committee of management of the industrial association;

(b)    action taken by an officer or agent of the industrial association acting in that capacity;

(c)    action taken by a member, or group of members, of the industrial association if the action is authorised by:

(i)    the rules of the industrial association; or

(ii)    the committee of management of the industrial association; or

(iii)    an officer or agent of the industrial association acting in that capacity;

(d)    action taken by a member of the industrial association who performs the function of dealing with an employer on behalf of the member and other members of the industrial association, acting in that capacity;

(e)    if the industrial association is an unincorporated industrial association that does not have a committee of management—action taken by a member, or group of members, of the industrial association.

Hinder or obstruct – s 500

44    Section 500 of the Fair Work Act provides as follows:

Permit holder must not hinder or obstruct

A permit holder exercising, or seeking to exercise, rights in accordance with this Part must not intentionally hinder or obstruct any person, or otherwise act in an improper manner.

45    In Darlaston v Parker [2010] FCA 771 at [47] to [52], (2010) 189 FCR 1 at 13 to 17, the authorities in relation to the expression “hinder or obstruct” were reviewed, including those authorities which employed that phrase in the context of the statutory offence of obstructing a police officer. A similar review had been undertaken by Gray J in Curran v Thomas Borthwicks & Sons Ltd (1990) 26 FCR 241. His Honour there concluded in respect to s 286 of the Industrial Relations Act 1988 (Cth) (at 258):

It follows that the proper construction of the phrase “hinder or obstruct” in the proviso to s 286(1) involves a requirement that the authorised officer do some positive act by way of hindrance or obstruction, or at least decline to move from a place in which he or she is likely to hinder or obstruct an employee. Apart from a failure to move, it is difficult to envisage a hindrance or obstruction that would fall within the proviso to s 286(1) but would not involve some positive conduct on the part of the authorised officer. Even if it is unnecessary to reach this conclusion, I am of the view that the mere presence of an authorised officer who is the subject of violent dislike by one or more employees, to the extent that those employees are prepared to cease work while the authorised officer is on the premises, cannot amount to a hindrance or obstruction by the authorised officer of those employees in the performance of their work.

After citing Curran, in Darlaston it was concluded in respect to s 767 of the Workplace Relations Act as follows (at 17):

[52]    For the purposes of s 767(1) it is considered that the reference to “intentionally hinder or obstruct” is a reference to any act or conduct that actually makes it more difficult for the person who is “hindered or obstructed” to discharge his functions, other than an act or conduct which is accidental. The act must be of such a nature that it is an “appreciable” obstruction or interference. A trivial act, or even an act which could not reasonably be regarded as an obstruction or interference, would not fall within s 767(1).

Accessorial liability – ss 550 & 793

46    An exposure on the part of a body corporate such as the CFMEU to the imposition of a civil penalty may relevantly arise under the Fair Work Act by reason of its being “involved in” a contravention (as provided for in s 550) or by reason of a liability assumed by reason of the conduct of an officer, employee or agent acting within the scope of his authority (as is provided for in s 793). Any vicarious liability that the CFMEU might have assumed at common law was not a question pursued during the course of the present hearing.

47    But difficulties in the construction and application of these provisions, and in particular s 793, have recently emerged.

48    Section 550 is expressed in comparatively simple terms and largely replicates earlier statutory provisions such as s 75B of the Trade Practices Act 1974 (Cth). That section, in very summary form, provides that a person who is “involved in a contravention” is “taken to have contravened that provision”. The section in its entirety provides as follows:

Involvement in contravention treated in same way as actual contravention

(1)    A person who is involved in a contravention of a civil remedy provision is taken to have contravened that provision.

(2)    A person is involved in a contravention of a civil remedy provision if, and only if, the person:

(a)    has aided, abetted, counselled or procured the contravention; or

(b)    has induced the contravention, whether by threats or promises or otherwise; or

(c)    has been in any way, by act or omission, directly or indirectly, knowingly concerned in or party to the contravention; or

(d)    has conspired with others to effect the contravention.

The section, by its terms, thus provides that a “person” who is “involved in a contravention” is “taken to have contravened” that provision.

49    For the purposes of this provision, there is no difficulty in giving content to s 550(2)(c). With reference to s 75B of the Trade Practices Act, Mason ACJ, Wilson, Deane and Dawson JJ in Yorke v Lucas (1985) 158 CLR 661 at 670 concluded that “a person cannot be knowingly concerned in a contravention unless he has knowledge of the essential facts constituting the contravention”. Their Honours further observed that the “proper construction of par. (c) requires a party to a contravention to be an intentional participant, the necessary intent being based upon knowledge of the essential elements of the contravention”.

50    The same approach has been applied in respect to s 550(2)(c): Fair Work Ombudsman v Maritime Union of Australia [2017] FCA 1363 at [100] per Jagot J. Section 550 acts “to protect the public by making each entity or person that is responsible for the unlawful conduct accountable for their conduct and separately penalised”: Fair Work Ombudsman v NSH North Pty Ltd trading as New Shanghai Charlestown [2017] FCA 1301 at [154] per Bromwich J.

51    Section 793 of the Fair Work Act is not expressed in such simple terms as s 550. And the purpose of s 793 is different to that served by s 550. Section 793 is directed to identifying those circumstances in which a body corporate is to be “taken … to have been engaged” in conduct pursued by (for example) “an officer, employee or agent”. The heading to that section is “Liability of bodies corporate”. It is thus a section clearly directed at sheeting home to a body corporate “liability” for the conduct of others. That section provides in relevant part as follows:

Liability of bodies corporate

Conduct of a body corporate

(1)    Any conduct engaged in on behalf of a body corporate:

(a)    by an officer, employee or agent (an official) of the body within the scope of his or her actual or apparent authority; or

(b)    by any other person at the direction or with the consent or agreement (whether express or implied) of an official of the body, if the giving of the direction, consent or agreement is within the scope of the actual or apparent authority of the official;

is taken, for the purposes of this Act and the procedural rules, to have been engaged in also by the body.

State of mind of a body corporate

(2)    If, for the purposes of this Act or the procedural rules, it is necessary to establish the state of mind of a body corporate in relation to particular conduct, it is enough to show:

(a)    that the conduct was engaged in by a person referred to in paragraph (1)(a) or (b); and

(b)    that the person had that state of mind.

Meaning of state of mind

(3)    The state of mind of a person includes:

(a)    the knowledge, intention, opinion, belief or purpose of the person; and

(b)    the person’s reasons for the intention, opinion, belief or purpose.

…

(5)    In this section, employee has its ordinary meaning.

Section 793, unlike s 550, is expressed in terms of identifying those circumstances in which a “body corporate” is “taken” to have been engaged in “conduct” engaged in on its behalf.

52    A number of questions arise in respect to liability sought to be ascribed to a body corporate pursuant to either s 550 or s 793 by reason of the conduct of “an officer, employee or agent” and the liability which may be assumed by a principal for the conduct of another at common law.

53    Of present concern are two interrelated difficulties, namely:

    whether an individual who contravenes a provision of the Fair Work Act can be found to be an accessory to the same contravention by reason of the vicarious liability of the CFMEU; and

    whether the CFMEU can be found liable pursuant to ss 550 and 793 of a contravention of a provision, such as s 500, which focuses on the conduct of an individual, being a permit holder.

54    The former difficulty was addressed, albeit with reference to the legislative scheme set forth in the Trade Practices Act, in Wright v Wheeler Grace & Pierucci Pty Ltd [1988] ATPR 40-865. When considering s 75B of that Act French J, when sitting as a Judge of this Court, concluded that an individual could not be an accessory to the conduct of a body corporate whose liability arises solely by reason of the conduct of the individual. His Honour there concluded (at 49,376 to 49,377):

This raises a question whether a natural person can be accessory to a corporate principal whose liability arises from the act of that person. There could be a case where a natural person engages in preliminary conduct of an accessorial character followed by distinct conduct attributable to a corporation as principal. But where the conduct upon which liability is founded is the only relevant conduct, it is difficult to see how it can also bear that accessorial character. This difficulty was recognised by the High Court in Yorke & Anor v. Lucas (1985) ATPR ¶40-622; (1985) 61 A.L.R. 307. The point in issue there related to the requirement that a person involved in a contravention by reason of sec. 75B have knowledge of the essential matters making up the contravention. However, at ATPR p. 47,057; A.L.R. p. 313, in the joint judgment of Mason A.C.J., Wilson, Deane and Dawson JJ. the following observation is found:

“It follows from what we have said that both the trial Judge and the Full Court were, in our view, correct in concluding that, upon the facts as found, Lucas was not a person involved in the contravention of sec. 52 constituted by the false representations and that he was, therefore, not liable in damages under sec. 82. We would only add, lest it be thought that it has escaped our attention, that the appellants may, even if knowledge were not necessary to involvement under para. (a) or under para. (c) as ‘party to’, have encountered difficulty in establishing that Lucas was involved within the meaning of sec. 75B in the contravention constituted by the making of the false representations, having regard to the fact that the representations, albeit made on behalf of the Lucas company, were made by Lucas himself. As Dixon J. observed in Mallan v. Lee (1949) 80 C.L.R. 198, at p. 216:

‘It would be an inversion of the conceptions on which the degrees of offending are founded to make the person actually committing the forbidden acts an accessory to the offence consisting in the vicarious responsibility for his acts.’”

Section 75B of the Trade Practices Act is in similar terms to s 550 of the Fair Work Act in that both sections are concerned with what it means to be “involved in” a contravention.

55    The liability of an individual as an accessory to a contravention by a body corporate whose liability arises by reason of the conduct of that individual being deemed to be the conduct of the body corporate was considered in the context of the Fair Work Act in Fair Work Ombudsman v Australian Workers’ Union [2017] FCA 528. Albeit in the context of an application for summary judgment, Bromberg J considered whether an individual (Davis) could be an accessory to the liability of the Australian Workers’ Union where the liability of the Union only arose by reason of Davis’ conduct being deemed to be the conduct of the Union pursuant to ss 363 and 793. In declining to strike out such a pleading, his Honour relevantly concluded:

[86]    … the only conduct relied upon by the FWO as conduct of the AWU is the conduct of Davis himself. As Davis submitted, relying upon ss 363(1)(b) and 793(1)(a) the ASOC alleges that the AWU is liable for his conduct by reason of his acting as an officer or agent of the AWU within the scope of his actual or apparent authority. In that context, it was contended that the conduct of Davis relied upon by the FWO to establish both the derivative liability of the AWU and the accessorial liability of Davis is one and the same. It was further contended that where Davis’ conduct as primary perpetrator is said to form the basis of the AWU’s derivative liability, there is no cause of action available against Davis for accessorial liability under s 550.

[87]    Davis relied on an observation made by Dixon J in Mallan v Lee (1949) 80 CLR 198 at 216 as follows:

It would be an inversion of the conceptions on which the degrees of offending are founded to make the person actually committing the forbidden acts an accessory to the offence consisting in the vicarious responsibility for his acts.

…

[89]    … to my mind, the most relevant authority to which I was taken is Hamilton v Whitehead (1988) 166 CLR 121 where the Court (Mason CJ, Wilson and Toohey JJ) clarified the High Court’s reference in Yorke v Lucas to the observations of Dixon J in Mallan. At 129–130, their Honours drew a distinction between a contravention committed by a corporate contravener as a consequence of being vicariously liable for the conduct of its servant (a circumstance in which, following Mallan, the servant is not capable of being an accessory) and a contravention committed by a corporate contravener as a consequence of actions undertaken by a person whose conduct is deemed to be the conduct of the corporation (a circumstance where the person is capable of being an accessory). Although not expressed, the apparent logic which supports that dichotomy is that in the first case the servant is the principal contravener whilst in the second case the principal contravener is the corporation.

[90]    Whether the conduct alleged against Davis falls into the first or second category is a contestable proposition which the submissions of the parties did not address. There is, I consider, force in the proposition that neither s 363(1) nor s 793(1) impose vicarious liability on a body corporate or an industrial association. The terms of those provisions operate to deem the conduct of the officer or agent to be the conduct of the body corporate or the industrial association. If that is correct, Davis’ asserted conduct is distinguishable from Mallan, and therefore Davis is capable of being held to have been an accessory to the AWU’s primary contraventions.

Thus contemplated was the liability of an individual as an accessory to the conduct of the Union which arose by reason of the individual’s conduct being deemed to be the conduct of the Union. The observations of Bromberg J, it is respectfully considered, are correct.

56    As to the latter of the two difficulties, namely whether ss 550 and 793 can expose the CFMEU to liability for a contravention of s 500 of the Fair Work Act, different issues and difficulties arise. Not the least of these difficulties is the fact that s 500 is drafted in terms which expose a “permit holder” to liability if he (inter alia) intentionally hinders or obstructs any person. An argument that neither s 550 alone or in combination with s 793 can expose an entity such as the CFMEU – which cannot be a “permit holder” – to liability cannot be summarily rejected.

57    The conclusion has previously been reached that the CFMEU may be found to have contravened such a provision: Australian Building and Construction Commissioner v Upton [2017] FCA 847, (2017) 270 IR 190 at 237 to 239. In explaining the route by which that conclusion was reached, and the authorities relied upon, Barker J there said:

[224]    In my view, it is, in the end not necessary to consider all the alternative means by which the CFMEU might be held liable for Mr Upton’s contraventions of s 346(a), s 348 and s 500, because I find the CFMEU may be considered liable for Mr Upton’s conduct under s 793 of the [Fair Work Act] in respect of the contraventions of s 346(a) and s 348, and under s 550 and s 793 in respect of the s 500 contravention.

[225]    The terms of s 793 have been set out above …

[226]    As I have found those contraventions proved, it follows that the CFMEU is taken to have been engaged in that conduct, and so also to have contravened s 346(a) and s 348.

[227]    As to the liability of the CFMEU with respect to the s 500 contravention, in the recent decision of Australian Building and Construction Commissioner v Huddy (No 2) [2017] FCA 1088, White J dealt with the submissions of the parties, not dissimilar to those outlined above, concerning the effect of s 793 in conjunction with s 550(2)(c) and the submission that thereby the CFMEU may be taken to have also contravened s 500 where an officer has been found guilty of contravention.

[228]    At [32], White J found as follows:

In my opinion, the Represented Respondents’ submission should not be accepted. It overlooks that s 793 operates as a form of deeming provision ‘for the purposes of this Act’. Those purposes include s 500. Section 793(1) requires that the conduct to which it refers be taken to have been engaged in by the body corporate. In this case the conduct of Mr Huddy on 22 October 2013 is to be taken to have been the conduct of the CFMEU. Mr Huddy’s knowledge on 22 October 2013 may be taken to have been the knowledge of the CFMEU.

[229]    The judge, at [33], then said that the only question remaining was whether that conduct, with that knowledge, was sufficient to make the CFMEU a person “involved in” the officer’s contravention of s 500. That was to say, the question was whether the CFMEU’s conduct (albeit constituted by its officer’s conduct), with its knowledge of the matters constituting the elements of that contravention of s 500 (albeit constituted by the officer’s own knowledge), meant that it had been knowingly concerned in, or a party to, that contravention.

[230]    At [34], White J then stated:

In my opinion, the statutory fictions indicate that this question should be answered in the affirmative. The CFMEU, with its separate legal personality, is deemed to have carried out the same actions as did Mr Huddy on 22 October 2013. Because Mr Huddy was exercising a right of entry pursuant to s 484, his actions constituted a contravention of s 500. As the CFMEU had no right of entry, its actions did not contravene s 500 but, together with its deemed state of mind, indicate that it was knowingly concerned in Mr Huddy’s contravention. So much is apparent from Hamilton v Whitehead (1988) 166 CLR 121 at 128 in which the High Court regarded as ‘plainly right’ the submission that, because the imputed accessory was the actor in the conduct constituting the offences and had knowledge of all the material circumstances, he was “knowingly concerned” in the commission of the offences committed by the company constituted by his conduct.

[231]    White J, at [35], agreed with what Charlesworth J said in Australian Building and Construction Commissioner v McDermott (No 2) [2017] FCA 797 at [21], to the effect that it did not matter that the deemed physical acts of the secondary participant are the same acts in fact engaged in by the primary contravener.

[232]    White J, at [36], expressly rejected the respondents’ submissions that, by legislative construct, the CFMEU had performed “the forbidden act” (the contravention of s 500). His Honour said that because it does not hold an entry permit, the CFMEU’s conduct cannot amount to an act forbidden by s 500 of the FW Act. However, that, he considered, was not a matter of consequence in the consideration of accessorial liability. A person may be involved as an accessory in a contravention by another even if the contravention is of such a nature that the accessory could not have contravened the provision as a principal, referring to Maroney v The Queen (2003) 216 CLR 31 at [11]; [2003] HCA 63.

[233]    His Honour added, at [37], that the case before him was not one in which the conduct of a person constituting a primary contravention by that person or by another whose liability arises from that conduct is then relied upon to establish the liability of the same person as an accessory. Thus, Mallan does not apply in this case.

[234]    At [38], White J concluded:

In short, I consider that the statutory fictions established by s 793 mean that the conduct of an official of a body corporate may constitute a primary contravention by the official and accessorial conduct by the body corporate. I am satisfied that the CFMEU should be taken to have contravened s 500 by reason of it having been directly or indirectly knowingly concerned in Mr Huddy’s contravention of s 500.

[235]    Understanding that I should apply this reasoning unless I consider it to be plainly wrong, it follows that the CFMEU should be taken to have contravened s 500 by reason of it having been directly or indirectly knowingly concerned in Mr Upton’s contravention of s 500, for the reasons contended for by the Commissioner as set out above.

Concurrence is expressed with the conclusions of both White J in Australian Building and Construction Commissioner v Huddy (No 2) [2017] FCA 1088 and Barker J in Australian Building and Construction Commissioner v Upton [2017] FCA 847, (2017) 270 IR 190.

58    Thus, by this route, the CFMEU may be taken to have been “involved in” the contravention of a provision such as s 500 (s 550) where the state of mind of an “officer, employee or agent” is attributed to the CFMEU as being the state of mind of the CFMEU itself (s 793(2)).

MATTERS OF EVIDENCE & PLEADING

59    Before these statutory provisions can be applied to the evidence and the facts found based upon that evidence, it is prudent to first address a number of discrete issues, namely:

    the standard of proof to be applied when resolving the conflicting evidence and applied to the allegations as to contraventions;

    the submission advanced on behalf of the Respondents that there can be no “workplace right” in the absence of a valid Notice of Employee Representational Rights; and

    the submission advanced on behalf of the Respondents in their written Outline of Submissions that to prove acts of coercion against an individual “the applicant must prove that the coercive action by individuals was taken in their personal capacity or on their own behalf”.

Each of these matters should be addressed in turn.

Standard of proof & inferences

60    It was common ground that contraventions of the Fair Work Act are regarded as “quasi-criminal”: Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (No 3) [2002] FCA 1294 at [53], (2002) ATPR 41-901 at 45,414 per Goldberg J; BHP Coal Pty Ltd v Construction, Forestry, Mining and Energy Union [2013] FCA 1291 at [68] to [69], (2013) 239 IR 363 at 388 to 389 per Collier J; Australian Building and Construction Commissioner v Parker [2017] FCA 564 at [58], (2017) 266 IR 340 at 359 to 360 per Flick J.

61    It was further common ground that the standard of proof to be applied is that set forth in s 140(2) of the Evidence Act 1995 (Cth), embracing as it does the principle formulated by Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336. When commenting upon the evidence required in a petition for divorce on the ground of adultery under the Marriage Act 1928 (Vic), his Honour there observed (at 362):

But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters “reasonable satisfaction” should not be produced by inexact proofs, indefinite testimony, or indirect inferences.

See also: (1938) 60 CLR at 347 per Latham CJ. See also: Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Competition and Consumer Commission [2007] FCAFC 132 at [29] to [32]; (2007) 162 FCR 466 at 479 to 480 per Weinberg, Bennett and Rares JJ.

62    The application of this standard of proof does not, however, preclude inferences from being drawn from primary facts. An inference may thus be drawn even in those cases where the standard of proof is that applicable in criminal cases, namely beyond reasonable doubt: Shepherd v The Queen (1990) 170 CLR 573 at 579 per Dawson J (“Shepherd”). An inference is but a part of the process of fact finding: G v H (1994) 181 CLR 387 at 390. Brennan and McHugh JJ there observed:

An inference is a tentative or final assent to the existence of a fact which the drawer of the inference bases on the existence of some other fact or facts. The drawing of an inference is an exercise of the ordinary powers of human reason in the light of human experience; it is not affected directly by any rule of law. Legal principle may confine the basic facts in order to exclude irrelevancies and, where proof beyond reasonable doubt is required, the legal standard of proof precludes the drawing of an inference for the purpose of determining an issue in litigation when the basic facts are consistent with an innocent inference. But the drawing of an inference is part of the process of fact finding: it has to do with the minor premiss in the syllogism of judgment, not with the major premiss of legal principle.

(Footnote omitted.)

And even in criminal cases an inference may be founded upon either an individual piece of evidence or an accumulation of the evidence in its entirety: Chamberlain v The Queen (No 2) (1984) 153 CLR 521 at 535 (“Chamberlain”). Gibbs CJ and Mason J there observed:

At the end of the trial the jury must consider all the evidence, and in doing so they may find that one piece of evidence resolves their doubts as to another. For example, the jury, considering the evidence of one witness by itself, may doubt whether it is truthful, but other evidence may provide corroboration, and when the jury considers the evidence as a whole they may decide that the witness should be believed. Again, the quality of evidence of identification may be poor, but other evidence may support its correctness; in such a case the jury should not be told to look at the evidence of each witness “separately in, so to speak, a hermetically sealed compartment”; they should consider the accumulation of the evidence…

63    So much, it was understood, was common ground between the parties.

The need for notification

64    The “workplace right” relied upon in the present proceeding was the right to “initiate” a “process or proceeding”, namely the right to initiate the process of negotiating a new enterprise agreement.

65    This entitlement is that conferred by s 172(2)(a) of the Fair Work Act. That provision, albeit a provision previously set forth, provides in relevant part as follows:

An employer … may make an enterprise agreement … with the employees who are employed at the time the agreement is made and who will be covered by the agreement …

Section 173(1) requires an employer who wishes to make an enterprise agreement to “take all reasonable steps to give notice of the right to be represented … to each employee who … will be covered by the agreement”. Section 174 thereafter sets forth the “[c]ontent and form of notice of employee representational rights”.

66    In reliance upon that “workplace right”, the Commissioner proceeds to allege contraventions of ss 340 and 343 of the Fair Work Act.

67    A preliminary objection raised on behalf of the Respondents to any liability being founded under either provision is that there can be no such “workplace right” in the absence of a valid Notice of Employee Representational Rights having been issued under s 173. This was the issue sought to be raised for resolution by the Interlocutory Application filed on 13 December 2016.

68    Based on the pleadings, the Respondents contend that:

    while a Notice was issued to Conbuild employees, the Notice which was issued was “invalid”; and

    no Notice was issued to BKH Contractors or Ultrabuild employees.

The Respondents submitted that the Notice issued to Conbuild employees was invalid because “[t]he [Amended Statement of Claim] does not plead that the NERR was issued to all employees of Conbuild as required, within 14 days of the notification time” and because the Notice “includes the letterhead of the employer and has taken on the character of an employer’s document”.

69    A separate factual question arises as to whether Notices of Employee Representational Rights were issued and when and by which entities.

70    Irrespective of:

    whether any defect in a notice that has in fact been issued would render a notice “invalid”; and

    whether the issue of a valid Notice is a precondition to the power of the Fair Work Commission to approve an enterprise agreement (cf. Peabody Moorvale Pty Ltd v Construction, Forestry, Mining and Energy Union [2014] FWCFB 2042 at [45], (2014) 242 IR 210 at 223)

it is concluded that:

    the issue of a valid notice is not a precondition to the right to “initiate, or participate in, a process or proceeding under a workplace law or workplace instrument” for the purposes of s 341(1)(b) of the Fair Work Act.

71    Section 341(1)(b), it has been held, is not “dependent on the existence of an entitlement” but rather depends upon a “person’s proposal to initiate a process or proceeding under a workplace law”: Tattsbet [2015] FCAFC 62 at [107], (2015) 233 FCR 46 at 73 per Jessup J (Allsop CJ and White J agreeing). Nor is the existence of a “workplace right” limited to “proposals to initiate processes or proceedings which would lead to the upholding of the right or entitlement sought to be vindicated”: Tattsbet [2015] FCAFC 62 at [107], (2015) 233 FCR at 73 per Jessup J (Allsop CJ and White J agreeing). That is, some invalidity in the initiation of the process which may later emerge does not deny the existence of a “workplace right”.

72    Although ss 173 and 174 provide that a notice “must” be given and “must” contain prescribed information, there is no express or implied legislative requirement that any invalidity in the giving of the notice or the notice itself denies the existence of the “workplace right” to “initiate” a process whereby agreement is sought to an enterprise agreement.

73    There is no question but that BKH Contractors, Conbuild and Ultrabuild were seeking to or proposing to initiate a process whereby a new enterprise agreement could be voted upon. The fact that such notice was given by Wexdek Formwork Pty Ltd by way of a notice under the letterhead of the “BKH Group” could not, in particular, found an argument that those companies were therefore not seeking to initiate a process of bargaining on a new enterprise agreement.

74    The preliminary objection raised on behalf of the Respondents founded upon any failure to give notice or that any notice given was invalid is thus rejected.

Coercive conduct & individuals acting in a personal capacity

75    This submission advanced in the Respondents’ written Outline of Submissions is that to prove acts of coercion by an individual “the applicant must prove that the coercive action by individuals was taken in their personal capacity or on their own behalf”. In advancing this submission reliance was placed upon Laing v Construction, Forestry, Mining and Energy Union (No 2) [2006] FCA 750 at [22] to [37], (2006) 155 IR 244 at 249 to 254 per Ryan J. In that case it was alleged that S J Higgins had threatened W M Loud that a contract would be cancelled if Loud did not make a certified agreement with the CFMEU. One of the issues to be resolved was whether an individual respondent (Mr Sheedy), who was an employee and manager of S J Higgins, had made a threat with an intent to coerce.

76    But reliance upon Laing, with respect, is misplaced for at least one of either of two reasons.

77    First, Laing is no authority for such a proposition as that now advanced. Laing was very much a case which, with respect to Mr Sheedy, turned upon the pleadings. The pleading as against Mr Sheedy was that when he:

engaged in the conduct pleaded in paragraphs 40 and 45 above, he did so with the intent to coerce W.M. Loud to agree to make the first proscribed agreement, alternatively the second proscribed agreement, alternatively the proscribed variation.

When reference was made to paras 40 and 45 there was no conduct pleaded against Mr Sheedy. In such circumstances, Ryan J reviewed the pleadings and some of the authorities and concluded (at 253):

[35]    Those passages make quite clear that central to the personal liability of the individual officers was their actual involvement in the offending industrial action including, as his Honour seems to have inferred, by encouraging the employees of Premier Coal to go on strike and thereby procuring breaches of their respective contracts of employment. By contrast, as I have endeavoured to explain in the earlier reasons and above, there is no allegation in the applicants’ pleadings of any fact from which it could be inferred that Sheedy had threatened conduct in which he personally would engage, as for example, by procuring a breach by S.J. Higgins of its existing contract with W.M. Loud.

On the facts of the present case, the pleading (for example against Mr Taylor) was that on 5 June 2014 Mr Taylor had said words to the effect: “If you don’t sign the new EBA we will pick one of you and smash your jobs so the rest of you know what is coming”. The reference to “we” is clearly a reference to both Mr Taylor and the CFMEU.

78    Second, the statutory provision under consideration by Ryan J was expressed in different terms to the current s 343 of the Fair Work Act. The provision being considered by Ryan J was relevantly confined to proscribing a person from taking or threatening to take industrial action or other action. Section 343 is expressed more broadly and now includes threatening to organise action against another person.

79    Laing, with respect, is no authority for the general proposition sought to be advanced on behalf of the Respondents.

THE PROPOSED EBA & THE CFMEU CAMPAIGN

80    An understanding as to the facts giving rise to the contraventions alleged by the Commissioner in respect to the conduct of the Respondents in June 2014 and thereafter at the Rhodes Site and the Wolli Creek Site in March 2015 can only be fully gleaned against:

    an understanding of the differences between the enterprise agreement being proposed by the CFMEU and that being proposed by BKH; and

    the campaign being pursued by the CFMEU to secure the reintroduction of site allowances, which involved ensuring that its own proposed enterprise agreement was accepted.

81    Viewed in context, the Commissioner maintains that the facts giving rise to the contraventions are consistent with the pursuit by the CFMEU of its campaign by targeting BKH.

82    This context requires a brief overview of the differences between the competing agreements and the CFMEU campaign.

The differences between the competing enterprise agreements

83    The enterprise agreement which was in force prior to June 2014 was the Wexdek Formwork Pty Limited t/as BKH Contractors/CFMEU Collective Agreement 2011–2014. Relevantly for present purposes, that enterprise agreement did not contain any provision in respect to site allowances.

84    The enterprise agreement being proposed by the CFMEU for the period from 2014 to 2017 did provide for the payment of site allowances. That agreement addressed wage rates and other employment benefits in cl 12. Clause 12.2(ii) provided in part as follows:

Site Allowance

A site allowance shall be paid at the appropriate rate as set out in Appendix C.

Appendix C1 in turn provided in part as follows:

Site Allowance - General

A Site Allowance shall be paid at the appropriate rate per hour for each hour worked to compensate for all special factors and/or disabilities on projects and in lieu of the following [Building and Construction General On-site Award 2010] special rates - confined space, wet work, dirty work, second-hand timber and fumes as follows:

From 1 July 2015 the following shall apply:

85    The enterprise agreement which was ultimately approved by the Fair Work Commission came into operation from 10 July 2015 and had a nominal expiry date of 30 June 2017. Clause 12 of that agreement addressed wage rates and other employment benefits. Clause 12.2(ii) addressed the payment of site allowances and provided as follows:

Site Allowance

A site allowance shall be paid at the appropriate rate as set out in Appendix C.

It is further agreed by the Parties that Site Allowance will not be payable on the following current projects (as at 18 March 2015):

Leightons 177 Pacific Highway North Sydney NSW 2060

Exhibition Centre DHL Lend Lease Gate 3, Darling Drive Haymarket NSW 2000

Four Points Hotel Multiplex 161 Sussex Street Sydney NSW 2000

If the Company undertakes any off site work the applicability of these allowances may be reviewed by agreement of the parties. Any agreed variation must be recorded in correspondence by the parties to this Agreement. This allowance must be in lieu of special rates and multi-storey allowance as contained in the [Building and Construction General On-site Award 2010].

86    Of particular relevance is the fact that the agreement as approved by the Commission:

    did in fact provide for the payment of site allowances; but that

    clause 12.2(ii) provided that the site allowance was not to be applied to the sites identified.

The CFMEU campaign

87    The commitment on the part of the CFMEU to securing the payment of site allowances to workers was not put in issue.

88    Nor could it have been.

89    The official journal of the CFMEU (Construction & General Division) NSW Branch, UNITY, thus stated (in part) in its December 2014 edition as follows:

90    The March 2015 publication of UNITY also contained the following passage:

91    In the August 2015 edition of UNITY the cover page appeared in part as follows:

Within that edition there was the following article:

92    Of immediate relevance is the commitment on the part of the CFMEU to secure enterprise agreements which contained (inter alia) a site allowance. Also of relevance is the prominent role played by Mr Razaghi, whose photograph appeared in both the December 2014 and August 2015 editions of UNITY and the references to the prominent role played by (inter alia) Messrs Razaghi and Manna. Mr Manna’s photograph appeared in the December 2014 edition of UNITY.

93    Against this background, Mr Hanlon also acknowledged the campaign to secure the payment of site allowances and the manner in which that objective was pursued, namely:

    the initial attempts undertaken by the CFMEU to negotiate enterprise agreements with big builders like Lendlease;

    the strategy thereafter to target the smaller builders such as Probuild and Billbergia;

    the strategy thereafter to target the larger supply contractors, such as Boral and DMG; and

    the strategy thereafter to target the specialist subcontractors, such as formworkers, steelfixers and scaffolders.

94    Mr Hanlon was questioned as to the meetings held by the Executive of the NSW branch of the CFMEU and his cross-examination proceeded in part as follows:

And were those meetings held at the city office, or at the Lidcombe office?—Lidcombe office. The Lidcombe office, to my recollection, back then. Lidcombe office – majority in the Lidcombe office.

And was it one of the roles of the executive to formulate or implement industrial campaigns in New South Wales?—Sometimes. Majority of it’s built up on governance and how the union is run.

Can I suggest to you that one approach to campaigning that was taken by the CFMEU in the years 2014 and ’15 was that you had a strategy whereby you sought to negotiate enterprise agreements, firstly with the big builders, like Lendlease. Would you agree with that?—I wasn’t personally involved in any big negotiations with big builders at the time.

Okay. I’m not asking about your knowledge – about your personal involvement. But you were aware that the industrial strategy of the CFMEU at the time was to first negotiate enterprise agreements with the big builders. Correct?—Possibly. I – I, honestly, can’t recall those conversations now.

All right?—I can’t, honestly – I, honestly, can’t recall conversations like that now, but that possibly could have been used as …

Can I then suggest to you, once you had negotiated enterprise agreements with the big builders you would then target negotiations with some of the smaller scale builders, like Billbergia, Probuild, and the like. That be fair?—Possibly.

And then, can I suggest to you, you would then target enterprise negotiations towards some large supply contractors like Boral, DMG, and the like. Would you agree with that?—Possibly.

And then, could I suggest to you, you would then negotiate enterprise agreements with the subcontractors in specialist areas like form workers, and scaffolders, and steel fixers, and the like. Would you agree with that?—Possibly. The – possibly. Possibly. I – I can’t recall the exact conversation that you’re talking about now.

All right. I’m just asking you about the industrial strategy of the CFMEU at the time, and you were a member of the executive of the New South Wales branch, Mr Hanlon?—That’s correct.

You seriously can’t recall what the strategy of the CFMEU was at the time, only a matter of two years ago?—No. What I can – what I’m saying is, is that I agreed with you, to a certain extent, that that possibly could have been used as the industrial campaign, it could have possibly been what the result was, but I wasn’t involved at that time. At that time, two years ago, I wasn’t involved in a lot of those campaigns. I was extremely short staffed. I was working out back end of western Sydney and looking after some regional work.

Notwithstanding the equivocal answers provided by Mr Hanlon, it is accepted that the campaign being pursued by the CFMEU was substantially as was being put to Mr Hanlon. He was then questioned more specifically about site allowances as follows:

Can I put to you that one specific campaign that was on foot during 2014 and ’15 was a specific campaign to demand that subcontractors reintroduce and pay site allowances. Correct?—There was a site allowance campaign. Correct.

And you were involved in that campaign. Correct?—No. Again, I – I was working – I wasn’t working around the major end of town, so I physically wasn’t involved in that campaign. No.

You were aware of the campaign, weren’t you?—I was aware.

Right. And, you say, you weren’t involved in the campaign at all?—I wasn’t physically involved in any negotiations with any major builders, or anything, in the result of that work for those allowances. No.

95    The campaign, moreover, was highly organised. Thus, for example, on 15 March 2015 there was a text sent by the CFMEU to a large number of CFMEU persons, stating:

Monday 16 March 6am all delegates required to attend at Cnr Boatman Place and Brodie Spark Drive, Wolli Creek

96    The events of relevance to the present proceedings arising initially in June 2014 and culminating in March 2015 necessarily have to be considered against the backdrop of the strategy pursued by the CFMEU.

THE FACTS GOING TO THE CONTRAVENTIONS

97    On the case advanced on behalf of the Commissioner, the CFMEU was pursuing this campaign to secure the introduction of site allowances and, on the facts of relevance to the present case, was pursuing this campaign by seeking the adoption of the enterprise agreement it was proposing rather than that being proposed by the BKH Group. In very summary form, the chronology of events – or so the Commissioner maintained – supported the conclusion that the action being taken at the Rhodes Site and the Wooli Creek Site was taken by the CFMEU for the very purpose of securing an enterprise agreement which included payment of site allowances. This chronology started with:

    a meeting held in June 2014 and the voting down of the CFMEU proposed enterprise agreement in February 2015.

Thereafter, the events:

    escalated, including the action taken at the two construction Sites

and only ceased:

    in March 2015 when agreement was reached between the CFMEU and the BKH Group.

Interspersed between June 2014 and March 2015 were a series of further meetings.

98    By way of an overview, the June 2014 meeting was attended by an officer of the CFMEU, Mr Taylor, and a number of formwork companies. Although what was said at that meeting is of relevance and is the subject of competing accounts, one thing is certain – a copy of the CFMEU’s proposed enterprise agreement was made available to the companies that attended. But the inclusion in that proposed agreement of a site allowance met with opposition.

99    By 10 March 2015, Mr O’Sullivan had prepared an alternative version of the CFMEU agreement which (inter alia) deleted the site allowance clause.

100    The agreement being proposed by the CFMEU was put to a meeting of workers in February 2015. But the workers “voted it down”. Thereafter, in March 2015, industrial disruption occurred at two BKH sites in Sydney – one at the Rhodes Site; the other at the Wolli Creek Site. That action, the Commissioner alleged, was pursued by the CFMEU for the purposes of “smashing” those who opposed its proposed form of the enterprise agreement. The industrial action only ceased on 17 March 2015 when, as the Commissioner would have it, agreement was reached between BKH and the CFMEU as to (inter alia) the payment of a site allowance. The Commissioner maintains that the action pursued by the CFMEU and its officers contravened a number of provisions of the Fair Work Act.

101    The Third Further Amended Statement of Claim thus alleges that as from at least 5 June 2014 the CFMEU “made and maintained a demand that BKH make an enterprise agreement on terms demanded by the CFMEU as set out in a CFMEU proposed enterprise agreement, in relation to work performed by BKH employees, including at the Darling Harbour, Rhodes and Wolli Creek Project”.

102    Again, in very summary form, the case for the CFMEU was that it was open to it to seek agreement to the form of enterprise agreement it was seeking to have endorsed and that the action which was taken at the Rhodes and Wolli Creek Sites was motivated by concerns as to safety rather than forming any part of any campaign to get the agreement approved.

103    The case advanced by the Commissioner is largely accepted.

104    In reaching this generally expressed conclusion attention should be focussed upon the campaign being pursued by the CFMEU to secure agreement to its proposed form of enterprise agreement and the chronology of events giving rise to the contraventions should be scrutinised with some degree of care.

5 June 2014

105    On 5 June 2014, the facts of relevance to the present proceedings and those relied upon focussed upon two events, namely:

    a meeting held between the CFMEU and formwork companies; and

    a text message received later that day.

Each needs to be separately considered.

The meeting

106    The meeting held on 5 June 2014 was between Mr O’Sullivan and Mr Taylor at the Pitt Street office of the CFMEU in Sydney to negotiate a new enterprise agreement to replace the collective agreement which was due to expire. Also in attendance were representatives from other unrelated formwork companies – “Wideform”, Perform Solutions Pty Ltd and “Dalma”. Mr Mardesic was there on behalf of Perform Solutions Pty Ltd.

107    During the course of that meeting, Mr O’Sullivan maintains that Mr Taylor gave to each of the subcontractors present a copy of the proposed CFMEU Enterprise Agreement and said words to the following effect:

If you all sign this new EBA, no one is first and no one is last, so everyone is happy. If you don’t sign the new EBA we will pick one of you and smash your jobs so the rest of you know what is coming.

Mr O’Sullivan accepted in cross-examination that he “personally didn’t feel threatened” during the meeting. He also maintains that at that meeting one of the formwork representatives said words to the following effect:

We can’t afford the site allowance in this agreement, the payments will send the company belly up.

This agreement will not meet the necessary requirements to comply with the new building code.

Mr O’Sullivan expressed agreement with the comments about the building code. Mr O’Sullivan also maintains that he said words to the following effect:

BKH Group can’t sign the new EA because we would not be able to achieve its conditions and still be successful winning tenders with developers and builders but more important are the new Code requirements.

108    Other than some questioning in cross-examination as to whether it was Mr O’Sullivan or one of the other formwork contractors present at the meeting who made the comment about being able to “achieve its conditions”, there was little disagreement as to the comment about being “smashed”. The cross-examination of Mr O’Sullivan thus proceeded as follows:

Okay. And there was a complaint made by some of the attendees that site allowance would increase the cost beyond what they could afford. Do you remember that discussion?—Yes.

And he said something like, “The costs will be absorbed by the builders like any increase is and our members have been very clear with us that they want site allowance back.” Do you remember that being said or words to that effect?—Yes.

Okay. And there was then a discussion there, wasn’t there, that one or two of the attendees said that they didn’t think they would be able to reach agreement with the union about the terms of the enterprise agreement. Do you remember that?—Yes.

And Mr Taylor said something like, “As you know, we can’t patent bargain. We will need to pick one company to start with and have more discussions with members employed by that company.” Do you remember that being said or something like it?—No. I – I …

Well, do you remember him referring to one company – choosing one company?—The only recollection that – that I can have or that I do have of one company is what I – what I put in the statement in the – in the affidavit but if memory serves – and it’s three years ago so …

Sure?—… I’m – I’m – but I – I think it started off with, “Here’s the same agreement for all of you. We don’t have to think who signs first or anything else. Just sign and off we go.” They’re the only two things that I can remember at all about one company. I can’t recall, honestly, anything else that was said about one company.

I see. And do you remember him saying something like these words, “There will be a possibility of protected industrial action and that means you will get smashed”?—No. I don’t.

Well, do you remember the word “smashed”?—I do.

He did say that, didn’t he?—He certainly did.

Yes. And he referred to the possibility of protected industrial action, didn’t he?—I don’t recall that at all. No.

109    Mr Mardesic gave a similar account of the meeting. After referring to the fact the formworkers “collectively” told Mr Taylor that “the proposed agreement wasn’t fair and was not workable”, Mr Mardesic maintained that Mr Taylor said:

It’s not up for negotiation. It is what it is and you have to sign it.

Mr Mardesic then maintains that one of the formworkers asked:

What happens if we don’t sign it?

Mr Taylor is said to have replied:

If you don’t sign it we will pick one of you and come after you.

In cross-examination, Mr Mardesic could not remember whether Mr Taylor had used the “specific words ‘protected action’ in that discussion”.

110    One difference between the accounts given by Mr O’Sullivan and Mr Mardesic is that Mr O’Sullivan maintains that Mr Taylor used the phrase “smash your jobs” and Mr Mardesic maintains that Mr Taylor simply said that “we will pick one of you and come after you”.

111    Mr Taylor in his affidavit accepted that there was a meeting in June 2014 at which formwork companies attended. Mr Kera was also to attend that meeting but “something came up” and he could not attend. On Mr Taylor’s account, and although he could “not now recall the details of that conversation”, he could recall responding to the complaint that the “site allowance would increase their cost beyond what they could afford”, saying words to the effect:

The cost will be absorbed by the builders. Like any increase is. And our members have been very clear with us that they want site allowance back.

On Mr Taylor’s account, the representative of Wideform, Mr Sash Krstevski, also said:

I will have to take this back to the company Board of Directors.

Mr Taylor responded, on his account:

No worries, get back to me.

In response to Mr O’Sullivan, Mr Taylor maintains that he said:

As you know, we can’t pattern bargain. We will need to pick one company to start with and have more discussions with members employed by that company. There will be a possibility of protected industrial action, and that will mean you will get smashed.

Mr Taylor explained that he used the word “smashed” as “this is the word commonly used by contractors when they complain to me about being financially stung by a builder”. Mr Taylor denied the account set forth by Mr O’Sullivan in his affidavit.

112    The account given by Mr O’Sullivan, and as largely corroborated by Mr Mardesic, is accepted. In particular, it is accepted that Mr Taylor did in fact say that “if you don’t sign the new EBA we will pick one of you and smash your jobs”. Mr Taylor accepted that he used the term “smash” – but his account of the manner in which he used that term is rejected. It is accepted that by using that term Mr Taylor intended to convey that there was no option other than to sign the enterprise agreement being proposed by the CFMEU or risk the business operations of the formwork company being ruined or “smashed”. It was intended by Mr Taylor as a threat. It is also accepted that Mr Taylor also said that “if you don’t sign it we will pick one of you and come after you”. However, a finding cannot be made that Mr Taylor used the word “protected” when referring to any industrial action. Given the acceptance of Mr O’Sullivan’s account of the conversation, it is also concluded that Mr Taylor did not use that word when referring to any industrial action.

113    In accepting the evidence of Mr O’Sullivan it is to be recognised that he was a witness whose recollection of events was understandably tempered by the passage of time. But on the important matters he was more certain as to what had happened and what had been said. Mr Taylor, as he accepted, could “not now recall the details of that conversation”. The characterisation of Mr O’Sullivan’s evidence by Counsel on behalf of the Respondents as “meandering” is, with respect, unjustified. The submission that Mr O’Sullivan’s evidence was “clearly untruthful” is also rejected. So, too, is the submission that his account of the conversation has not been proven to the requisite degree of satisfaction. Counsel for the Respondents sought to place reliance upon the following observations of Goldberg J in Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (No 3) [2001] FCA 1861, (2001) 119 FCR 1 at 23 to 24:

[71]    As I have observed earlier, many of the conversations that at trial became critical to the issues raised and, indeed, were an integral part of the contraventions alleged, occurred at a time, and in a context, when there was no need for any documentary record of them to be made and when there was no circumstance that warranted the need to store up in the mind a recollection of the conversation. I therefore approach the evidence of conversations by witnesses with caution bearing in mind that the nature of memory is such that, more often than not, evidence of conversations long since past is by way of reconstruction (albeit unwittingly) rather than by way of independent recollection.

[72]    This view of the evidence raises a further difficulty in relation to the conversations the subject of evidence in this proceeding. That is, that particular words used may have different meanings depending on the nature and ebb and flow of the conversation. This difficulty calls to mind an observation made in relation to evidence of conversations said to constitute misleading and deceptive conduct. In Watson v Foxman [(1995) 49 NSWLR 315] McLelland CJ in Eq said (at 318):

“Where the conduct is the speaking of words in the course of a conversation, it is necessary that the words spoken be proved with a degree of precision sufficient to enable the court to be reasonably satisfied that they were in fact misleading in the proved circumstances. In many cases (but not all) the question whether spoken words were misleading may depend upon what, if examined at the time, may have been seen to be relatively subtle nuances flowing from the use of one word, phrase or grammatical construction rather than another, or the presence or absence of some qualifying word or phrase, or condition. Furthermore, human memory of what was said in a conversation is fallible for a variety of reasons, and ordinarily the degree of fallibility increases with the passage of time, particularly where disputes or litigation intervene, and the processes of memory are overlaid, often subconsciously, by perceptions or self-interest as well as conscious consideration of what should have been said or could have been said. All too often what is actually remembered is little more than an impression from which plausible details are then, again often subconsciously, constructed. All this is a matter of ordinary human experience.”

That observation is apposite to many of the conversations I have to consider in this proceeding.

But reliance upon these observations was misplaced. The evidence of Mr O’Sullivan has been accepted as evidence of what was in fact said and accepted notwithstanding the passage of time between the swearing of his affidavit and the events deposed to.

The meeting – the failure to call witnesses & a witness not telling the truth

114    In addition to putting in issue both the words exchanged at the meeting and the context in which words were spoken, Counsel for the Respondents further submitted that inferences should be drawn against the Applicant by reason of the failure to call as witnesses those other representatives from formwork companies who were present at the meeting on 5 June 2014.

115    Reliance was placed by the Respondents upon Jones v Dunkel (1959) 101 CLR 298 and the standards to be expected of a Commonwealth body with statutory investigative powers and a model litigant: cf. Australian Securities and Investments Commission v Rich [2009] NSWSC 1229 at [465] and [530], (2009) 236 FLR 1 at 100 and 116 per Austin J. Reliance was also placed by Counsel on behalf of the Respondents upon the following observations of Campbell J in Manly Council v Byrne [2004] NSWCA 123:

[51]    Thus, if a witness is not called two different types of result might follow. The first is that the tribunal of fact might infer that the evidence of the absent witness, if called, would not have assisted the party who failed to call that witness. The second is that the tribunal of fact might draw with greater confidence any inference unfavourable to the party who failed to call the witness, if that witness seems to be in a position to cast light on whether that inference should properly be drawn.

Beazley JA and Pearlman AJA agreed with Campbell J.

116    The Applicant, it may be accepted, did not call evidence from two other formwork company representatives who were present at the meeting, namely the representatives from Dalma or Wideform.

117    A failure to call witnesses who attended a meeting, does not, of course, compel an inference to be drawn that the account of that meeting given by those who did attend and who did give evidence is not to be accepted. A party need not call all available witnesses, each of whom is then required to give his account and be exposed to cross-examination. Nor does it compel an inference to be drawn that the account given by other witnesses should not be accepted where that account is called into question. The decision not to call a witness is but part of the factual matrix against which findings of fact are to be made.

118    There is, moreover, in the present case some evidence as to what the “missing” witnesses may have said. Each may have said something as to whether or not they felt threatened. While evidence of such facts may go to an assessment of whether words which were said were said with any particular intent, all such evidence is again but part of the factual matrix to be taken into account. Part of that matrix is the prospect that words may be said by a person and intended as a threat but may so miss their mark that those listening do not feel threatened or intimidated.

119    The failure to call those persons as witnesses is no reason, in the present case, not to accept the account given by Mr O’Sullivan (in particular) and that given by Mr Mardesic. Nor does the failure to call those witnesses preclude any finding being made as to the intent with which words were spoken by Mr Taylor at the meeting and the objective or purpose he sought to pursue.

120    There has been no departure from the standards expected of a model litigant which has prejudiced the opportunity for the Respondents to fully test the case against them. Indeed, given that opportunity, the Respondents obviously formed a view that the facts were sufficiently well established to warrant some admissions being made. It may be accepted that the duty of the Commissioner was beyond that of a partisan litigant: cf. Mahenthirarasa v State Rail Authority (NSW) (No 2) [2008] NSWCA 201 at [14] to [19], (2008) 72 NSWLR 273 at 277 to 278 per Basten JA (Giles and Bell JJA agreeing). But even the duties of a model litigant do not extend to the calling of every and all witnesses who may potentially give evidence of relevance to a particular factual matter; the duties of a model litigant, being otherwise a litigant in this Court, to act in a manner which is consistent with the “just resolution of disputes … as quickly, inexpensively and efficiently as possible” remains: Federal Court of Australia Act 1976 (Cth) ss 37M and 37N.

121    Separate from any submission founded upon the failure of the Applicant to call the representatives from either Dalma or Wideform was a submission that the evidence that those two witnesses could have given was known to an investigator, Mr Armstrong, but not included in an affidavit prepared by Mr Armstrong for use in an ex parte proceeding before the Administrative Appeals Tribunal when seeking an order for the compulsory examination of Mr Howlin. This separate submission was that this failure on the part of Mr Armstrong was again a departure from the standards expected of a model litigant and a reason to reach a conclusion that Mr Armstrong was not a witness of truth.

122    It is unnecessary to resolve this separate submission. Although it may presently be accepted that the credit of Mr Armstrong could be potentially called into question by reference to his conduct in separate proceedings before the Tribunal, his evidence in respect to his attendance at the Wolli Creek Site on 17 March 2015 and his further evidence adds little to what is established by other evidence.

123    This separate submission advanced on behalf of the Respondents is rejected. No finding should be made that Mr Armstrong in giving his evidence in this proceeding was not giving an accurate account as best as he could and as truthfully as he could. The evidence of Mr Armstrong, in any event, has not proven to be dispositive of any factual issue to be resolved in the present proceeding. All such findings as have been made would have been made irrespective of his evidence.

The text message – “Eenie meenie miney mo!”

124    Later in the afternoon of 5 June 2014 at 3.44pm, Mr O’Sullivan received a text message from Mr Kera which read:

Eenie meenie miney mo!

125    Although the evidence stopped short of establishing that Mr Taylor had a conversation with Mr Kera prior to that text message being sent to Mr O’Sullivan, it is concluded that Mr Kera intended the message to convey the simple message that had been conveyed by Mr Taylor at the meeting earlier that day. That simple message was that the formwork companies were to sign the enterprise agreement proposed by the CFMEU otherwise the union would pick one of them and “smash” the company selected.

126    The text message was simply reinforcing that message, which was that one formwork company was to be selected at random – as in the children’s rhyme “eenie, meenie, miney, mo” – and then targeted. The text was sent by Mr Kera as a threat and a threat intended to reinforce the threat made earlier in the day by Mr Taylor.

127    Mr Kera did not give evidence. The conclusion that the text was sent as a threat and was intended as a threat is a conclusion founded upon both the terms themselves and also the context in which the text was sent. Had it been necessary to do so, reliance would also have been placed upon the failure of Mr Kera to attend and be cross-examined: cf. Jones v Dunkel (1959) 101 CLR 298 at 308 per Kitto J.

128    Although there was no evidence one way or the other as to whether Mr Kera sent this text message to any of the other formwork companies present at the meeting earlier in the day, that matters not. The text was sent to Mr O’Sullivan.

October 2014

129    There were two meetings in October 2014.

130    Mr O’Sullivan maintains that the first October meeting was held with the CFMEU “[s]ometime around October 2014”. This meeting was attended by Messrs O’Sullivan, Howlin and Parker and was regarding the CFMEU’s proposed enterprise agreement.

131    During the course of that meeting Mr O’Sullivan recalls that Mr Howlin said to Mr Parker words to the effect:

We’re just going to sign it.

That was a reference, Mr O’Sullivan understood, to the agreement being proposed by the CFMEU. Mr O’Sullivan was not sure why Mr Howlin said this; Mr O’Sullivan continued to have concerns about the CFMEU’s proposed agreement because he did not think that “we could afford its terms”.

132    Mr O’Sullivan further maintains that he attended a second meeting in October 2014 with the CFMEU. Also in attendance at that meeting from BKH were Messrs Howlin, Tom Sinnot (Project Manager) and Sime Buterin (BKH’s CFMEU Delegate). In attendance from the CFMEU were Messrs Parker, Manna, Darren Greenfield and Kera. The meeting was held at the CFMEU’s state office in Lidcombe. During that meeting Mr O’Sullivan recalled words being said to the following effect:

O’Sullivan:    We need to make some changes to the new EBA...The contractor clause is non effective and the site allowance is not sustainable.

The EBA is not code compliant.

Kera:    If you want to make changes I am wasting my time… We will do what we do if you do not sign.

You’re meant to sign as is.

It is compliant to the 2013 code.

Reliance is placed upon that part of the conversation in which Mr Kera is said to have said that “[w]e will do what we do if you do not sign”.

November 2014

133    Mr O’Sullivan makes no reference in his affidavit to any meeting having been held in November 2014.

134    But it was put to him that a meeting was held in that month and that at that meeting “agreement” was reached with the CFMEU as to the terms of an enterprise agreement for BKH.

135    But that which was the subject of agreement was far from clear.

136    In cross-examination, Mr O’Sullivan was taken to his account of a meeting in February 2015 and it was suggested that there was an earlier meeting held in November 2014. Within that context, the following exchange occurred:

I see. And when you say put it to the men, this was a meeting that was to take place in February of the next year, and there was no agreement reached between the union and BKH at that meeting or any other meeting prior to February of 2015?—No. In an attempt to try and negotiate any changes, no, there was no agreement.

Okay. There was no agreement reached, and there were no further meetings. Are you sure about that, Mr O’Sullivan?—Sure about what?

Whether there were no further meetings before February 2015?—I’m sure. We all run across each other.

Sure?—But of a formal type of a nature, no, I don’t recall any.

But, Mr O’Sullivan, this is the truth, isn’t it: there was a meeting in November that you were at with the CFMEU at their office where agreement was reached on the BKH enterprise agreement, wasn’t there?—Not that I recall after that meeting, no.

And you were at that meeting, weren’t you?—I’m sorry. No, I can’t recall the meeting after that one that was a formal type meeting. I can’t recall one at all. I’m sorry.

Well, let me give you something to jog your memory because it’s a thing so frightening that anyone would remember. At that meeting on 27 November in 2014 Mr Parker actually hugged you, didn’t he?—That I do recall, yes.

Yes. Because that was after the – or at the meeting that you had where you reached agreement with the CFMEU about the BKH enterprise agreement?—Not at that – I thought that was done at this meeting, not at that one. That was …

And he, in fact, kissed you on the head, didn’t he, Mr O’Sullivan?—He did, yes.

You remember that now, don’t you, because he was happy, and you were happy that you had both reached agreement on the enterprise agreement for BKH. That’s true, isn’t it?—As I – the best as I can recall, we reached the agreement in October at this meeting.

Sorry. You reached an agreement at this meeting now, did you?—Well, the agreement that we were going to put to the man. The meeting later was more about the fact that – I think it was more just to try and show that we’ve had a bit of a bust-up and it’s over. We – I don’t recall specific discussions about the EBA at that meeting that was done here, but it was, I think, more just to try and say, well, look, it’s over now. That’s it.

Mr O’Sullivan, you told me before that you hadn’t reached an agreement with the union and that there were no further meetings. That’s what you said, wasn’t it?—No.

And now you’re saying you did reach an agreement in November of 2014.

There was then an objection and the cross-examination continued:

MR LATHAM: Well, sorry?—I’m saying at October meeting there was no changes. It was agreed we will put it to a vote.

Yes?—That was agreed, so we’re putting it to the men.

In fact, the agreement was agreed, wasn’t it, Mr O’Sullivan. BKH agreed to the proposed enterprise agreement with the CFMEU – sorry – in November of 2014, and at that meeting? …—Not as I recall it, no.

And at that meeting Mr Parker, in fact, kissed you and hugged you. Could I show you these photos. That’s you, isn’t it, Mr O’Sullivan?—It is.

And that’s a meeting in November of 2014, isn’t it?—I presume so. I don’t remember the date.

I see. And Mr Parker was hugging you and kissing you because you were both happy to have reached agreement on the enterprise agreement?—That’s not as I recall it.

Okay. What do you recall then? Why was he hugging and kissing you?—As I said earlier, we had disagreement along the way, and, for lack of a better phrase, I suppose we just kissed and made up and said, “Okay. We’re done with that now. Let’s move on.”

137    It is concluded that there was a meeting in November 2014. But it is further concluded that all that was agreed was that the enterprise agreement being proposed by the CFMEU would be put to a vote. It is not concluded that there was agreement to accept the terms of the CFMEU’s proposed enterprise agreement.

February/March 2015 – the voting down of the CFMEU’s proposed enterprise agreement

138    The chronology of events as they unfolded in February 2015 and leading up to the initial vote of employees in respect to the enterprise agreement being proposed by the CFMEU was relatively uncontentious.

139    Prior to 25 February 2015 Mr O’Sullivan had signed and issued Notices of Employee Representational Rights on the letterhead of:

    “BKH Group Wexdek Formwork Pty Ltd”; and

    “Ultrabuild Pty. Limited”.

The date upon which he did so, however, was uncertain. Although he did have a recollection of having actually issued the notices, the best date that he could give as to when he did so was “very early January” 2015 or that it “may have been at the end of the previous year”.

140    On 25 February 2015 Mr O’Sullivan visited BKH sites at Darling Harbour, Sussex Street and Headland Park, Barangaroo North in Sydney. He told the workers at those sites words to the following effect:

Vote what suits you but the cost of the site allowances is not sustainable and I expect that after the implementation of the site allowance payment the business will go belly up in three to six months.

Mr O’Sullivan chose these three sites as they were close to each other. Mr O’Sullivan denied in cross-examination that he had gone to these sites “with the express intention of encouraging those workers to vote the agreement – proposed agreement down”.

141    Later in the day on 25 February 2015 there was a vote on the CFMEU’s proposed enterprise agreement.

142    On the afternoon of that day, Mr O’Sullivan received a phone call telling him that the workers had “voted it down”.

143    On the following day, 26 February 2015, there was a meeting between Messrs Howlin, O’Sullivan, Kera and Darren Greenfield at which Mr O’Sullivan recalled Mr Kera saying words to the effect:

After pulling something like that normally we would smash your jobs, but out of respect for Benny [Howlin] we are talking to you and we are going to give you until Friday week to have another vote on the EBA which will only be five minutes long. You will tell all the boys to vote yes.

In cross-examination Mr O’Sullivan maintained that “the union basically said, ‘Look, have another vote by Friday’. We finished the meeting with, ‘We will assess our position and call you tomorrow’”.

144    On 27 February 2015 Mr O’Sullivan telephoned Mr Kera and the following exchange occurred:

O’Sullivan:    I am sorry but we cannot sign the new EBA.

Kera:        I hope that you’ve got my number on speed dial next to FWBC’s number who I expect you’ll be calling next time we come out.

145    Sometime “shortly after” 26 February 2015 there was a meeting of the Executive of the CFMEU at which the “voting down” of the agreement was reported. Mr Hanlon accepted in his affidavit that the “voting down” of the agreement had been “reported to the Executive” – but there his account ended. Thereafter, and during his cross-examination, there was (with respect) some prevarication as to the context in which this “report” occurred. It was put to Mr Hanlon that one of the “big campaigns that the executive was running in New South Wales in its enterprise negotiations was the reintroduction of a site allowance” and that the “voting down” of the agreement was of concern to the CFMEU. After Mr Hanlon was advised of the prospect that there was an “impression … that you are not answering the questions”, the following exchange occurred with his cross-examiner:

Mr Hanlon, what I’m asking you is at the meeting of the executive at which it was reported to you that the BKH agreement had been voted down, I’m putting to you that at that meeting it was also reported that the reason why it had been voted down was because the employees voting on it had concerns about the cost of the site allowance, and that was a concern shared by the management of BKH?—Possibly, yes.

Thank you. And can I suggest to you that as a result of that being reported to the executive, that was a matter of serious concern so the New South Wales branch because one of the big campaigns that the New South Wales branch was running at the time was the reintroduction of the site allowance. Correct?—Yes.

And …?—Possibly yes. Yes. Yes, yes.

That was a matter about which you were seeking to have solidarity across the industry on, to reintroduce the site allowance. Correct?—Correct. Yes.

So the fact that one subcontractor was daring not to agree to an enterprise agreement that included the site allowance was a matter of serious concern to the executive. Correct?—Concerning. Possibly, yes.

This topic was further pursued as follows:

After you were informed that the BKH employees had voted down the enterprise agreement, I’m putting to you that the executive made a decision that action would need to be taken against BKH to put pressure on BKH to get them to agree to an enterprise agreement that included a site allowance. You’re aware of that, aren’t you?—Possibly, yes.

Right. And one industrial level that’s available to the union in circumstances where it doesn’t have the numbers to take protection action is to get officials to exercise their rights of entry to hinder and obstruct the performance of work, isn’t it?—No

146    As from 4 March 2015, Mr O’Sullivan observed “an escalation in the number of site visits to BKH projects by CFMEU officials”. Prior to that time, Mr O’Sullivan maintained that “the CFMEU had rarely visited sites where BKH performed work”.

147    By 10 March 2015, Mr O’Sullivan had prepared an alternative version of the agreement proposed by the CFMEU which (inter alia) deleted the site allowance clause. He prepared and issued a Notice of Employee Representational Rights for Conbuild on 10 March 2015.

148    On 11 March 2015, Mr O’Sullivan was at the BKH site at Darling Harbour and was advised that CFMEU officials were attending the site. He recognised Messrs Tony Sloane, Michael Greenfield and Sammy Manna. He approached Mr Sloane. Mr Sloane showed Mr O’Sullivan a copy of the Notice of Employee Representational Rights issued the previous day and the following exchange occurred (without alteration):

Sloane:        I want to speak to the men about the letter and their rights.

O’Sullivan:    Mate legally you have to give me notice. You cannot speak to the men. I am telling you no.

Sloane:    Legally your letter is a joke. I don’t mind doing time in jail for fighting for worker’s rights. Better men than me have time in jail for less causes than standing up for worker’s rights.

O’Sullivan:    Who the fuck said anything about going to jai.

149    Prior to 7.00am Mr O’Sullivan saw and heard Mr Michael Greenfield speak to the workers gathered for the pre-start meeting and say words to the following effect:

Your employer is trying to keep money in his pocket that should be in yours. I am here to ensure workers’ rights. We will be bargaining on behalf of you for your rights and your employer is trying to rip you off.

150    The account of these events as given by Mr O’Sullivan is accepted. In particular, it is accepted that Mr Kera said that “[a]fter pulling something like that normally we would smash your jobs” and that there was to be another vote and that the BKH representatives were to “tell all the boys to vote yes”. Again, it may be further noted that Mr Kera was contemplating that an option open to him was to “smash your jobs”.

151    These events as to the “voting down” of the CFMEU’s proposed enterprise agreement on 25 February 2015 and the threat made by Mr Kera on 26 February 2015 provide a factual context to the events as they unfolded at the Rhodes Site on 11 March 2015 and at the Wolli Creek Site on 12, 16 and 17 March 2015.

11 March 2015 at the Rhodes Site

152    On 11 March 2015 there was a concrete pour being undertaken at the Rhodes Site involving some 30 concrete trucks scheduled to deliver 220m³ of concrete. The work to be undertaken that day involved the pouring of nine columns and the floor of a podium. According to Mr Manuel, there were approximately 12 BKH workers involved in the scheduled pour.

153    There is some limited uncertainty as to the events as they unfolded on that day.

154    But some matters emerged as common ground, those matters focussing upon:

    the pouring of concrete that was to take place on that day;

    the parking of two cars registered to the CFMEU across the access to the Rhodes Site; and

    the entry upon the Site of Mr Collier without an entry permit.

155    It was thus common ground that on the morning of 11 March 2015 there was scheduled to take place a concrete pour of some magnitude. The pouring of the columns preceded other work as the columns supported other parts of the structure. The pouring of the columns commenced between about 7.00am and 7.30am and had been completed by about 9.00am.

156    It was also common ground that at about 8.00am a number of CFMEU persons were seen walking on the edge of the slab that was to be poured. Those persons raised a number of professed concerns as to the safety of the Site, including:

    that there were workers working under the concrete boom whilst concrete was being poured;

    the manner in which a secondary safety device affixed the hose through which concrete was being pumped to the concrete boom; and

    the adequacy of the safety rail surrounding the area upon which work was to be undertaken.

It was also common ground that:

    one of the CFMEU persons told workers to get off the deck upon which concrete was being poured and the workers did so;

    the concrete pour was thereafter stopped; and

    such concreting as had already been undertaken that day, or at least a not insignificant part of that concreting, had to be later jackhammered out and repoured.

But what was not common ground was whether any of these professed concerns as to safety had any merit.

157    With respect to these matters, and in very summary form, it is concluded that:

    the CFMEU persons initially in attendance at some time shortly after 7.00am were Messrs Razaghi and Manna. Mr Collier attended sometime thereafter;

    neither Mr Razaghi nor Mr Manna had any genuinely held belief that there were any safety issues which warranted their entry upon Site, let alone an entry upon the Site immediately rather than a few hours later when they were offered to be taken on a safety walk by Mr Webster;

    Mr Garvey was on Site sometime thereafter;

    irrespective of the factual merits of the safety concerns being expressed, the CFMEU persons in attendance on that morning were acting in concert and with a common objective;

    the common objective was to disrupt the work being undertaken and thereby exert pressure upon BKH to sign the enterprise agreement being proposed by the CFMEU;

    the concerns as to safety, whether justified or not, were but a convenient reason seized upon by those CFMEU persons in attendance as the means whereby they could tell the workers to get off the deck and to cease work; and

    the activities of the CFMEU persons were intended to – and did in fact – disrupt the work being undertaken.

These conclusions, and most specifically the conclusions as to the reasons why the CFMEU sought entry to the Rhodes Site on 11 March 2015 and their objective of causing disruption to scheduled work if not mayhem on Site is only reinforced by the fact that after agreement had been reached between representatives from BKH and the CFMEU on 17 March 2015:

    there were no subsequent attendances on Site by the CFMEU and all industrial action thereafter ceased; and

    there were no subsequent attendances on Site to inspect whether any concern as to safety which had been expressed had been addressed.

Such findings, it is considered, may well have been sufficient to resolve the contraventions as alleged by the Commissioner.

158    With respect to the CFMEU cars parked across the access to the Rhodes Site, it was common ground that:

    two cars registered to the CFMEU were parked in the access way to the Rhodes Site by which the concrete trucks were to access the Site for the pour (Gate 3).

It is concluded, again in very summary form that:

    the relevant CFMEU persons involved included Messrs Hanlon and Collier;

    the cars were parked across the access in a manner which prevented access to or departure from the Site of concrete trucks delivering concrete to the Site for the concrete pour scheduled for that morning; and

    the cars were parked in that manner with the intent – and with the consequence – that work on the Site be disrupted.

159    With respect to the entry upon Site of Mr Collier, it was common ground that:

    Mr Collier did not have an entry permit.

Again in very summary form, it is concluded that:

    Mr Collier was not granted permission to enter the Site; and

    Mr Collier entered the Site knowing that he had no right of entry.

160    Each of these issues, however, requires further attention.

The activities being undertaken & the CFMEU persons who attended at the Site

161    The work on the concrete pour commenced at about 7.00am and the pouring of the columns started at about 7.30am when the first concrete truck arrived.

162    Mr McBrien maintained that at about 7.10am he walked through the gate at the Rhodes Site and observed a CFMEU delegate he identified as “Mansour”. That person was Mr Razaghi. He was introduced by Mr Webster to Mr Manna.

163    Mr Manuel later that morning observed Mr Manna and two other CFMEU persons walking on the edge of the slab that was to be poured “[a]s we were getting to the end of pouring the columns”. Mr Gow maintained that at about 8.00am he saw three CFMEU persons on Site. He identified one of those persons as “Luke”, being Mr Collier.

164    Without being exhaustive, Messrs Darren Greenfield and Hanlon also attended at the Rhodes Site later in the day. Mr Garvey was also in attendance.

165    The number of senior CFMEU persons who attended at the Rhodes Site assumed some relevance. The inference sought to be drawn by the Applicant was that the presence of so many senior CFMEU persons and persons whose geographical area of responsibility within the CFMEU structure did not include that area could not be supported by any legitimate concern as to safety but rather was to be attributed to a commitment on the part of the CFMEU to put as much pressure on BKH as possible. That inference is drawn. It is an inference that can be properly founded upon the facts relied upon by the Applicant and the circumstances in which each of those persons came to be there: cf. Shepherd (1990) 170 CLR at 579; Chamberlain (1984) 153 CLR at 535.

The circumstances in which Mr Collier attended on Site

166    The circumstances in which Mr Collier was called to attend at the Rhodes Site on 11 March 2015 attracted some attention. Those circumstances, it is considered, throw considerable light upon whether access was being sought for genuinely held concerns as to safety or for some other reasons.

167    According to Mr Webster, when Mr Razaghi arrived on Site, he said that he had “safety concerns that we have to look at straight away”. Mr Webster responded as follows:

I have twenty to thirty guys that have to be inducted. After that we can certainly go and have a look at the safety issues as we do every Wednesday at ten thirty with the full Safety Committee.

168    A short time later, according to Mr Webster, Mr Razaghi phoned Mr Hanlon and then said to Mr Webster that “I’ve been told by my boss to go on site and look at the safety concerns now and safety doesn’t wait for anyone”. Again, at approximately 7.30am, Mr Webster told Messrs Razaghi and Manna that he would be “more than happy to have you attend our safety walk with the committee at ten thirty”. Mr Razaghi made another phone call and then said:

Rebel told me that if I can’t do my fucking job he’ll get some organisers that can. He’s told me that he’s sending Luke Collier.

169    According to Mr Hanlon, it was a concern for the safety of Mr Razaghi that prompted him to send Mr Collier to the Rhodes Site. So much emerged as follows during his cross-examination:

And you called Mr Kera to say to him, “Do you have anyone spare to go out the [Rhodes Site] to give Mansour a hand.”?—That’s in the statement, yes. Correct.

And you say the reason why you did that was because you were concerned that Mr Razaghi had been subjected to assault some building sites at the time?—That’s correct, yes.

Well, you knew that Mr Manna was out there with him; correct?—Yes, yes.

So you were now going to send a third person out there, were you?—Yes.

And Mr Kera said to you, “Luke is free. I will send him”?—That’s correct.

Being a reference to Luke Collier?—I think that under of duty of care as being a supervisor, employer at the time I had a duty of care to ensure the safety and wellbeing of everyone working under my control.

The issue that was being raised with you, Mr Hanlon, according to you is that Mr Razaghi was telling you that he was being denied a right of entry, correct?—Correct.

170    That explanation is rejected. Mr Hanlon, it is respectfully concluded, was deliberately trying to conceal the fact that Mr Collier was sent to the Rhodes Site when Messrs Razaghi and Manna were invited to attend later in the day rather than straight away. Immediate access to the Site was necessary, it is concluded, if the scheduled concrete pour was to be disrupted. Mr Collier was sent to the Rhodes Site to ensure that access to the Site was achieved as soon as possible – and certainly not later in the day. The evidence of Mr Hanlon to the contrary is, with respect, not accepted.

The parking of cars in the driveway

171    There was no question that on the morning of 11 March 2015 there were two cars in the driveway at the entrance to the Rhodes Site by which the concrete trucks were to enter and exit the Site for the concrete pour. Both were registered to the CFMEU.

172    According to Ms Siciliano, she arrived at the Rhodes Site at about 9.50am and observed Mr Razaghi standing on the footpath outside the Site. She observed the two vehicles parked in the driveway. One was parked within the driveway, immediately in front of the opening made by the gates. The other vehicle was parked in front of the first, closer to the road. She maintained that it would not be possible to drive a vehicle through the gate because of the way the cars were parked. She also observed one concrete truck parked on Site and two concrete trucks outside.

173    Ms Siciliano saw Mr Collier exit the driver seat of one of the two vehicles parked in the driveway. She also observed Mr Manna, Mr Hanlon and two other individuals on the Site.

174    Mr Faros met with Ms Siciliano on the morning of 11 March 2015 and also attended the Rhodes Site. He also observed the two cars parked in the driveway. He maintained that the “manner in which the vehicles were positioned did not leave room for another vehicle to enter or exit through the gate”. He observed two concrete trucks inside the blocked gate and saw a further four or five concrete trucks outside the gate waiting to get in.

175    The police were called and arrived. Mr Faros and Ms Siciliano had a conversation with one of the police constables who was in attendance and was told that the CFMEU official to whom the officer spoke said that “the cars aren’t theirs”.

176    The police called for a tow truck which later arrived. Mr McBrien maintained that at 11.01am the tow truck positioned itself so as to remove one of the vehicles. Two CFMEU persons were observed by Mr McBrien to stand between the vehicle and the tow truck. There was then a “scurry” to locate the keys and Mr Hanlon arrived and both vehicles were moved.

177    Ms Siciliano observed Mr Hanlon unlock the two cars parked on the driveway.

178    Mr Faros observed Mr Hanlon and someone who had introduced himself as Brendan move the cars at about 11.05am.

179    Mr Phelan observed Mr Collier move one of the cars. He also observed Mr Collier drive the car in his “direction” and “veered the vehicle a little to the right to avoid” himself and Mr McBrien. As Mr Collier got out of the car the following exchange occurred:

Phelan:        Mate, you were very close to hitting us.

Collier:        You’re just a piece of shit.

Mr Phelan walked away in disgust. He observed Mr Hanlon, who appeared to be willing to speak to the police and looked like he was trying to “defuse” the situation.

180    The police left the Site at about 11.35am.

181    One line of cross-examination proceeded upon the basis that parking in the vicinity of the Rhodes Site was limited and that people were seen to park their cars “illegally” and even on occasions in the driveway.

182    It is concluded that:

    the two CFMEU cars were parked in the driveway by CFMEU persons;

    the two parked cars were deliberately left in place until the last moment when the tow truck was about to remove them – any difficulty in determining whose car they were and who had the keys was quickly remedied at that moment when keys were “found” and the cars driven off; and

    the two cars were deliberately parked in the driveway for the purpose of preventing the concrete truck on Site from leaving and for the purpose of preventing concrete trucks from gaining access to the Site, those purposes being supported by the manner in which the cars were parked.

Any suggestion that the two cars were simply parked in the driveway because of the limited availability of parking in the vicinity is rejected because:

    had that been the reason, and not for the purpose of preventing entry and departures from the Site, the cars could simply have been moved when a request was made.

The parking of the two cars was in contemptuous disregard of the rights of the occupier to gain entry to its Site.

The requests for the entry permits

183    After Messrs Razaghi and Manna had gone to the Site office to sign in, Mr Collier arrived. He entered Mr Webster’s office.

184    There was then the following exchange between Mr McBrien and Mr Collier:

McBrien:    Can I see your right of entry card?

Collier:        I don’t have one. I don’t need one.

McBrien:    As site manager I have to request your ‘Right of Entry’ card. If you don’t have it, you can’t enter the site.

Collier:        I can enter.

McBrien:    No you can’t.

Collier:        Well I’m staying here.

McBrien:    I’m going to have to ask you to leave.

Collier:        No. I won’t be leaving you can do what you want, but I won’t be leaving.

185    Mr McBrien then left the group comprising Messrs Webster, Razaghi, Manna and Collier to take a phone call. When he returned those persons were not there. Mr McBrien set off to find the group who had entered the Site. Mr McBrien later observed Mr Collier and the rest of the group standing in the podium area within the Site.

Mr Webster gave a similar account. Mr Webster maintained that he knew that Mr Collier had lost his right of entry permit. Mr Webster also maintained that he observed Mr McBrien approach Mr Collier and heard the following exchange:

McBrien:     Can I see your Right of Entry?

Collier:    I don’t have one and you can call the police. You can call whoever you fuck’n want, but I ain’t going fuck’n nowhere.

It was at this point, according to Mr Webster, that Messrs Razaghi and Manna left Mr McBrien and himself with Mr Collier. Messrs Razaghi and Manna started walking to where the concrete pour was to occur. Messrs Webster and McBrien started walking in the direction of Messrs Razaghi and Manna. Mr Webster maintained that Mr Collier followed and “was citing alleged safety issues along the way”. Mr Webster also maintained that he then heard the following exchange between Mr McBrien and Mr Collier:

McBrien:    I will have to ask you to leave site as you do not have the Right of Entry to be here.

Collier:    Fuck off. I’ve told you before I’m not going anywhere until we make your site safe.

McBrien:    I will then have to call the police as you are trespassing.

186    The account given by Messrs McBrien and Webster is accepted.

187    It is concluded that:

    a request was made of Mr Collier to produce his entry permit and he did not have one;

    Mr Collier was told by Mr McBrien that he could not enter the Site; and

    notwithstanding the refusal of permission to enter the Site, Mr Collier proceeded to do so.

It is also concluded that:

    Mr Collier entered the Site not out of any genuine concern as to safety but for the purpose of being as disruptive as possible of the activities then being undertaken and proposed to be undertaken by those working on Site.

Mr Collier’s entry upon the Site, it is considered, was conduct which can only be characterised as not only unlawful but also as an arrogant defiance of Mr McBrien’s express refusal of permission to enter.

The professed concerns as to safety – as first expressed

188    The identification of concerns as to safety by one or other of the CFMEU persons present on the morning of 11 March 2015 got off to a shaky start.

189    Initially, those concerns were expressed in but the most general of terms. At about 7.10am, Mr McBrien thus looked at Messrs Manna and Razaghi and had the following exchange:

McBrien:     What was the purpose of [your] visit?

Razaghi:    We’ve received phone calls that there are safety issues on site. We want to go and have a look.

McBrien:    Can you specify in more details where the safety concerns are.

Razaghi :    No. We have issues with access and egress, falls from heights.

Mr Razaghi then mentioned other general items and the exchange continued as follows:

McBrien:    We can’t just work on general safety concerns. You need to be more specific.

Mr McBrien maintained that there was no specification of any safety issue and he realised that Messrs Razaghi and Manna wanted to proceed on Site. Mr McBrien then said:

You need to return to the site office and sign in as all visitors must do.

Messrs Razaghi and Manna then returned to the Site office and signed in. They produced to Mr McBrien their right of entry permits.

190    Mr Webster gave a similar account. On his account, there was the following exchange between himself and Mr Razaghi:

Razaghi:    I have received numerous safety issues by phone on site which I need to investigate immediately. Benny [Manna] will also be joining us.

Webster:    I have to go and do the site inductions as there is twenty, thirty guys to be inducted.

Razaghi:    We have safety concerns that we have to look at straight away.

Webster:    I have twenty to thirty guys that have to be inducted. After that we can certainly go and have a look at the safety issues as we do every Wednesday at ten thirty with the full Safety Committee.

Razaghi:    No. We must go and have a look right now. We cannot wait.

After some other words were spoken, Mr Webster said to Mr Razaghi (inter alia):

… why didn’t you ring me last night or yesterday afternoon and I could have addressed the issues there and then.

Mr Webster observed Mr Razaghi make a telephone call and Mr Razaghi then said:

I’ve been told by my boss to go on site and look at the safety concerns now and safety doesn’t wait for anyone.

Mr Manna then said:

It’s a safety issues. It’s beyond our control and we have to investigate immediately.

Mr Webster maintains that Mr McBrien told Messrs Razaghi and Manna to complete the visitor’s sign-in register, which they did. At about 7.30am, Mr Webster said that he and Messrs McBrien, Razaghi and Manna left the Site office to walk on to the Site. Mr Razaghi made a phone call and then said:

Rebel told me that if I can’t do my fucking job he’ll get some organisers that can. He’s told me that he’s sending Luke Collier.

“Rebel” was a reference to Mr Hanlon.

191    The account given by Messrs McBrien and Webster is largely accepted.

192    The account given by Mr Razaghi when he gave his account as to his reasons for attendance at the Site and demanding entry was less than satisfactory. On Mr Razaghi’s account, a “day or two prior to” 11 March 2015 he was on the street near the Rhodes Site and a “worker” approached him and the following exchange occurred:

Worker:    This site is not ok. There are lots of safety problems. There are problems with access, lights, there is no communication and no one knows what is happening. When are you going to come and have a look?

Razaghi:    Look, I have a large and busy area. I will try to make a time to come and have a look.

It was this exchange which motivated Mr Razaghi, or so he said, to later attend at the Rhodes Site on 11 March 2015.

193    But there are difficulties with accepting his account as providing any reasonable basis for any genuinely held belief as to the need to enter the Site to address professed concerns as to safety. These difficulties start with the facts that:

    the worker with whom the conversation was said to have occurred was unidentified; and

    the identity of that unidentified employee’s employer and the nature of the tasks he performed were also left unidentified.

Mr Razaghi apparently made no further inquiries of the “worker” to get any further details. More importantly, further difficulties with accepting Mr Razaghi’s account as providing a factual foundation for a conclusion that he genuinely had a concern as to safety at the Rhodes Site arise by reason of the fact that:

    Mr Razaghi at the time responded by saying that he had “a large and busy area” and would “try to make a time to come and have a look” but later maintained that he had to gain access to the Site to “look right now” and that he “cannot wait”;

    Mr Razaghi was apparently in the vicinity of the Rhodes Site at the time the exchange occurred but did not then give the concerns as to safety such priority as to immediately visit the Rhodes Site but left it for “[a] day or two” before seeking entry;

    having waited “[a] day or two”, the concerns as to safety being expressed by Mr Razaghi to Mr Webster had inexplicably become so urgent that any further delay was not to be tolerated and that immediate access was required – even a delay of a few hours to when a safety walk was scheduled (which Messrs Razaghi and Manna were invited to attend) not being acceptable to Mr Razaghi;

    the reasons proffered by Mr Razaghi to Mr Webster as to the reasons for seeking entry on 11 March 2015 did not “match up” with the concerns previously expressed by the unidentified “worker”; and

    the work health and safety notice which identified “particulars of the suspected contraventions” given by Mr Razaghi, on his account on 11 March 2015 to either Mr Webster or Mr McBrien, did not “match up” with the concerns expressed to Mr Webster.

It is further concluded that:

    Mr Razaghi’s evidence should not be accepted irrespective of any of these difficulties because his evidence was characterised, with respect, by evasiveness and a manifest lack of any willingness to give an honest response to the questions being asked in cross-examination.

194    Mr Manna had no separate or further reasons for having any concern as to safety other than what he had been told by Mr Razaghi.

195    In making these findings as to the evidence given by Mr Razaghi it is recognised that the criticisms expressed are adverse to his account of the events. His evidence is nevertheless central to resolving questions as to the lawfulness of the right of entry being exercised on 11 March 2015. The making of these findings is only reinforced by reference to the following exchanges in Mr Razaghi’s cross-examination when he was maintaining that he had attended at the Wolli Creek Site on 12 March 2015 because he was in the area to have discussions with a painter. It was being put to Mr Razaghi that no matter what responsibilities he may have had to the “painting sector” he attended at the Wolli Creek Site that day because he had received a text – together with many other persons – seeking their attendance on Site. The cross-examination proceeded in part as follows:

Now, can I ask you this? Wolli Creek wasn’t part of your geographical area of responsibility, was it?—Wasn’t.

No. And who, at the time, in March 2015, had responsibility over that geographical area?—I do not remember.

You don’t remember the date on which you attended the Wolli Creek site, but do you recall that you were there with other organisers from the CFMEU?—Yes.

And on that day, those other organisers from the CFMEU and you, were milling about in front of the site entrance at or near the footpath. Do you recall that?—No. I don’t – correct your terminology.

Well, just take a step back. What you do recall is, going to the Wolli Creek site. Correct?—Yes.

And by the Wolli Creek site you knew that it was a site at which Probuild had been engaged in order to develop some apartments or something. Correct?—I don’t recall.

Right. But you were there at a site at Wolli Creek. You recall that much. Correct?—I was on the street.

…

And I asked you a question before about you milling about in front of that site, out or near the footpath, and you had a difficulty with the terminology, and you said in your response. But in a subsequent response to the question you said, “You were standing on the street.” Do you recall giving that response?—Yes.

Right. Do you now recall what you were doing standing on the street near the site?—I was responsible for the painting sector in New South Wales. I was going from Newcastle to arrange – to arrange to Wollongong. At that morning I had a meeting with some other painters as well. I’m not sure really. I was there for the painters or someone – something else. But at that day I had a meeting with a painter in some other job site nearby, in the nearby suburbs.

Well, Mr Razaghi, you’ve produced a diary record for 16 March 2015, in which you – that’s an annexure to your statement, and that’s the last page of your affidavit, in fact, where that diary entry records you having a scheduled appointment to be at Miranda HPS apprentice at about 8.30. Do you see that?—Yes.

Yes. And then from about 9.30 you have some scheduled appointment with Phil at Finetouch; see that?—Yes. Finetouch is a company.

That was an appointment you had at 9.30, according to your calendar; correct?—Correct.

Now, don’t you recall receiving a text message the night before you attended the Wolli Creek site, from someone in the CFMEU, requiring you and other organisers and delegates to attend the Wolli Creek site?—No.

Although it may perhaps be accepted that Mr Razaghi may not specifically recall receiving a particular text message on a particular day some two years in the past, the explanations otherwise provided by Mr Razaghi are implausible. It is concluded that, contrary to Mr Razaghi’s evidence, he attended on that day at the time at which he did because he had been requested by the text messages to do so. Mr Razaghi’s insistence that he had a meeting with a painter, when his diary showed that he had other appointments at 8.30am and 9.30am, was but one example of his unwillingness to accept the fact that the CFMEU were pursuing a campaign to seek the reinstatement of site allowances. That was a matter in respect to which he had long associated himself, as evidenced by the publications UNITY and, in particular, the August 2015 edition in which it was said that Mr Razaghi regarded the site allowance campaign as a “good victory” which was “reverberating positively across the industry”. His unwillingness to accept the propositions being put to him by his cross-examiner reflected adversely upon his credit on the particular issues the subject of cross-examination and his evidence more generally.

196    The more generally expressed conclusion is that at that point of time when Messrs Razaghi and Manna sought entry to the Rhodes Site neither had any genuine concern as to safety and neither had any reasonable basis upon which any such genuine concern could be founded. There was, moreover, an unexplained insistence upon gaining an immediate right of access to the premises given the fact that:

    there was known to be a safety committee on Site, and no reservation had been expressed as to its effectiveness; and

    the Work Health and Safety Officer on Site, Mr Webster, was a CFMEU delegate.

The entry upon the Site – the safety concerns later expressed

197    But, and as the events unfolded on that morning, a number of more specific safety concerns were later expressed.

198    At least one of the issues to be resolved in respect to these later expressed concerns is whether they were concerns genuinely held or were, as the Commissioner would have it, just a convenient cloaking of a desire or objective on the part of Messrs Razaghi, Manna and Collier to hinder or cause a disruption of the concrete pour and to disrupt work.

199    The Commissioner’s account, it may be noted at the outset, is largely accepted.

200    The reason for qualification arises because one of the safety concerns later expressed had merit. This concern focussed upon the danger facing workers who were directly under – or in close proximity to – the concrete boom whilst concrete was being poured.

201    That safety concern later expressed, obviously enough, is of no assistance in supporting the lawfulness of the initial entry when that concern was not previously identified.

202    Further, that qualification does not lead to any different conclusion being reached as to the true object or purpose of the CFMEU persons who had entered the Rhodes Site on 11 March 2015. That purpose, it is concluded, was to disrupt the work being undertaken. Reasons for reaching this conclusion notwithstanding the merit of the safety concern raised in respect to workers working in close proximity to a concrete boom include the fact that:

    the remaining professed safety concerns were not genuinely held;

and:

    all the safety concerns identified were immediately addressed;

    were in fact a safety issue which was caused by an agent of the CFMEU; or

    were entirely baseless.

It is the conduct pursued by the CFMEU persons in attendance in its entirety which characterises the true purpose sought to be pursued. Also of relevance in characterising the purpose sought to be pursued was the fact that:

    there was a curious and unexplained failure to explain why such perceived safety concerns as were sought to be relied upon were not progressed via the employee on site who was the responsible safety officer and a delegate of the CFMEU, Mr Webster.

203    The more generally expressed conclusion that is reached is that the CFMEU persons achieved their objective in entering the Rhodes Site on 11 March 2015 – that objective being to disrupt scheduled work as much as possible and to exert as much pressure as possible on BKH to agree to the CFMEU’s proposed enterprise agreement. It was no part of the CFMEU objective when entering the premises to genuinely address concerns as to safety.

204    This conclusion, it is respectfully considered, is only further supported by the fact that after 17 March 2015, when agreement had been reached with the CFMEU, there was no later inspection of the Site by the CFMEU. The expressed concerns as to safety which had warranted such peremptory and immediate access being granted to the premises on the morning of 11 March 2015 had, inexplicably, been resolved without the need for any further inspection being carried out to see if any of the expressed concerns had been satisfactorily addressed. Had the expressed concerns as to safety been genuinely held it would only have been expected that a subsequent inspection would have been carried out. There was no such inspection. And there was no subsequent inspection, it is concluded, because by 17 March 2015 the CFMEU had achieved the objective it had from the outset; it had secured agreement to the payment of a site allowance.

Working under the concrete boom

205    The first of the concerns as to safety which was raised was that workers were working under the concrete boom. It may readily be accepted that while concrete is being pumped, workers should not be underneath the boom in case it collapses. The concrete is being pumped through at pressure. The danger is real.

206    At some point in time workers were in fact working under the concrete boom. Some of the evidence focussed more directly on whether workers were in fact working under the boom whilst concrete was being poured. Thus, for example, Mr Manuel was taken to a photograph showing the concrete boom extended and his cross-examination proceeded in part as follows:

Do you know in relation to photo 18, whether concrete is being poured in that photo, or do you not know?—No, I don’t know.

Okay. But it’s also the case too, isn’t it, is that when concrete was being pumped there were workers in proximity to the boom – in close proximity to the boom?—Close proximity, but not – not directly under.

Okay. And your evidence, isn’t it, is that if workers are in close proximity to the boom, and there is a problem with the hose, where the hose detaches, those workers may be at great danger?—At – right at the very, yes.

A little later there was also the following exchange:

And, in fact, you knew that there were people too close to the boom, didn’t you?—I knew they were in that proximity.

…

The truth was this, Mr Manuel, wasn’t it: you knew that if there were people close to the boom and that there was a problem with the hose that there was a danger of those people being hurt, didn’t you?—Yes.

And that there were people who were close to the boom?—As I said, within proximity.

In re-examination, the response of Mr Manuel to the concern being raised as to safety was explored as follows:

What did you do in response to them raising those issues?—I – we stopped the pump. I went and got some bunting tape just to exclude a zone so that nobody could work in proximity to the boom, so …

Mr Manuel’s cross-examination as to workers working “within proximity” to the concrete boom was consistent with his affidavit evidence in which he stated that he “did not see any workers working directly under the boom”. In his affidavit, Mr Manuel also identified Mr Manna as the CFMEU person who was insisting that there were workers under the boom and that it was “illegal” for them to do so.

207    Other witnesses expressed concurrence with the view that workers were working too close to the concrete boom. Mr Gow, for example, gave evidence that one of the CFMEU persons had said:

[E]veryone get away from under the boom.

Mr Gow agreed with that assessment and he told “some stragglers to move away from under the boom”. Mr Phelan directed workers from “under the pump” but also noticed that the concrete pumpers were not pumping any concrete at that stage.

208    Mr Bartley was also on Site when the concrete was being poured. Mr Bartley identified the CFMEU persons who were present as one by the name of “Ben”; another being “a dark European with a moustache” and a third person being “tall, fair, solid build and looked like he was in his twenties”. The third person he referred to in his witness statement as the “young man”. These persons, it is concluded, are respectively Mr Manna, Mr Razaghi and Mr Collier. Mr Bartley maintained that Mr Razaghi stated that “other trades were working under the boom” but Mr Bartley maintained that “they were working next to the boom at some distance”. Mr Bartley heard Mr Razaghi say:

Stop the pour. You’re working unsafe.

Stop the pour. You can’t pump.

209    Confined to this first concern as to safety, it was immediately addressed by at least two steps being taken, namely:

    as explained by Mr Manuel, bunting tape was erected to act as an exclusion zone so that nobody would work in proximity to the boom; and

    as explained by Mr Gow, the “stragglers” who remained working in close proximity to the boom were directed to move away. Mr Phelan gave a like direction.

The strap which affixed the hose

210    The second of the concerns as to safety raised by the CFMEU persons focussed on the strap which affixed the hose through which the concrete was being poured to the boom. The strap was a secondary safety device, the primary means whereby the hose is affixed to the boom being by way of a clip. The strap is intended to be a further safety device which prevents the hose falling to the ground in the event of a malfunction.

211    Mr Manuel in his affidavit maintained that the concern as to the strap being “illegal” was expressed by Mr Manna and a second CFMEU person. Mr Manuel disagreed with the assessment that the use of the strap was “illegal”. In his experience he considered that “straps are tested for weight and grip rubber better than chains” and they “do a much better job than a chain”. On Mr Manuel’s account, no reason was expressed by Mr Manna or the other CFMEU person as to why the use of the strap was “illegal”. Another BKH worker identified as “Brad” nevertheless went to find a chain. After the strap was replaced by the chain, there was then the following exchange between Mr Manuel, Mr Manna and the other CFMEU person (“CFMEU A”):

Manna:        This chain is not good enough. It has not been certified.

Manuel:        You’re making up your own rules now.

Manna:        No.

CFMEU A:    No.

212    Mr Gow heard two of the CFMEU persons exchange views that the chain “[d]oesn;’t have a rating take and it doesn’t comply” (without alteration). In Mr Gow’s assessment, the chain was not as strong as the strap.

213    Whilst “measures were being taken to find a chain”, Mr Bartley had the following exchange between himself and the “young man” (being Mr Collier) (without alteration):

Collier:        How are you mate?

Bartley:    Yeah good, mate. Why are you here? You’re stopping us from working. How is the pump unsafe?

Collier:    The strap is unsafe to me and there’s no access up onto the slab from the pump and no access ways around the pump.

Bartley:    There is access ways and the strap is strong enough to hold it.

Collier:    We are trying to look after you boys and get your boss to sign the new EBA.

Bartley:    What are the benefits of the EBA.

Collier:    An extra average fifteen grand a year per boy and an extra sixtry grand over five years. That’s a get ski or a new car.

Bartley:    Our boss will go broke from it if he does sign it.

[Collier]    From what I’ve heard your boss won’t go broke because he’s got the most work and he can afford it. Benny;s one of the dearest formworkers in new south wales and he’s making more money than other formworkers. He’s charging one hundred and twenty five (125) per square metre for formwork when others are charging one hundred and ten (110). I don’t know exactly what he’s getting for the concreting but he’d have to be getting pretty good money to pay for these new concrete pumps.

Bartley:    Why can’t this new EBA start on a new job not half way through.

Collier:    Dermot [O’Sullivan] has already put the new rates into any new job starting eighteen (18) months ago.

Bartley:    You’re full of shit.

Mr Bartley walked off and stood near Mr Gow. Mr Collier went onto the slab with Mr Razaghi and started taking photos of the concrete hose. Mr Bartley observed Mr Gow take a photograph of Mr Razaghi and heard Mr Collier say to Mr Gow:

I hope you know how to use a jackhammer you dickhead.

214    The evidence of Messrs Manual, Gow and Bartley is accepted. The acceptance of that evidence includes a finding that the conversation between Messrs Bartley and Collier exposed the true object or purpose being pursued by the CFMEU – namely, the exertion of pressure to secure the acceptance of the CFMEU’s proposed enterprise agreement.

215    The inescapable inference, moreover, is that Mr Collier foresaw the need to later jackhammer the concrete that had already been poured. That inference can properly be founded upon such other facts as his knowledge that the concrete pour was proceeding, the interruption to the pouring of the concrete and the very terms in which Mr Collier expressed his attitude to Mr Gow: cf. Shepherd (1990) 170 CLR at 579; Chamberlain (1984) 153 CLR at 535.

216    Limited reliance, it is concluded, can be placed upon the expert witness, Mr O’Brien, called on behalf of the Respondents. As a result of his evidence, which was hardly helpful to the Respondents, it is concluded that there is no prohibition upon the use of a sling and that there is no requirement for a chain to be tagged. But the relevance of such evidence, as indeed initially foreshadowed by Counsel on behalf of the Applicants, was elusive. The objective ascertainment of such requirements as may have been prescribed did not immediately go to the reasonableness of the views being expressed by the CFMEU persons involved. The conclusions which are reached have, accordingly, been founded upon the conduct of those persons and the responses to the concerns they raised rather than upon any consideration being given to the views of Mr O’Brien.

217    In respect to this second concern as to safety, once again – as soon as it was raised – it was addressed. The strap was replaced by a chain.

The adequacy of the formwork

218    A third concern expressed on behalf of the CFMEU was as to the adequacy of the formwork into which the concrete was to be poured.

219    This concern as to the adequacy of the formwork, according to Mr Manuel, was raised at about the same time as concern was being expressed as to the adequacy of the chain. According to Mr Manuel, Mr Manna and another CFMEU person “started picking on the formwork” saying that the engineer is “shonky” and that the deck is “shonky”. Both said that “[i]t’s illegal how this deck had been formed up”. Mr Ramm left to get a copy of the engineer’s report certifying the formwork.

220    Shortly after the pouring commenced, Mr Manuel also gave the following evidence as to an exchange between himself and “Darren”:

Darren (yelling):    Everybody off the deck.

Manuel:        You get off the fucking deck.

Darren:        This deck is illegal.

Manuel :    What you’re doing is fucking wrong. You’re full of shit. You get the fuck out of here. You’ve done nothing for us for ten years. For ten years I’ve been my own delegate. I’ve negotiated for our men. We pay you what for? This is how you treat us. You shut us down and what then? You’re here for your own accord, to fill your own pockets.

Darren:        Maybe that’s happened in the past. We’re here to change things.

“Darren”, it is concluded, was Mr Darren Greenfield. Mr Manuel was aware that the CFMEU wanted to increase the amount paid to concrete workers.

221    Any concern expressed as to the adequacy of the formwork is rejected. Moreover, neither Mr Darren Greenfield nor any other CFMEU person had any right to direct people off the deck or to request the production of a copy of the engineer’s certificate. The fact, however, is that such a direction was given. The fact that the direction was given in circumstances where there was no reasonable basis upon which any opinion could be formed as to the inadequacy of the formwork only undermines any professed concern as to safety and only reinforces a conclusion that the objective of the CFMEU persons present was to disrupt the work being undertaken.

The adequacy of the handrail

222    A further safety concern expressed on behalf of the CFMEU focussed on the adequacy of a handrail next to where it was intended to pour concrete. There was a handrail in position – but it was kicked down. The circumstances in which this occurred were described by Messrs Webster and Bartley.

223    Mr Webster gave evidence that a union official kicked a handrail to the extent that it dismantled. Mr Webster gave evidence as to workers moving from the vicinity of the concrete boom and there was then the following exchange with Counsel for the Commissioner:

And what happened next?—From the bottom of where the pump had been set up, where the map on 501 shows, I noticed another – what appeared to me – another union official come up the back way and had some handrails that he was wobbling around and kicking and throwing and eventually dropped to the ground, and so there was more safety concerns then because the handrail was missing.

So let me just try and break that up. You saw another union official come up through another path up to the concrete deck?—Yes.

And you saw him – I think you saw him shaking and, I think you said, kicking the handrails?—Shaking and kicking, yes.

Although Mr Webster could not then identify the “union official”, he later did so as Mr Garvey. When identifying Mr Garvey, there was also the following exchange:

Now, after the shaking and kicking, what did Mr Garvey do?—I think he put the hand rails – just thrown onto the – where the concrete pour was to take place and he disappeared from there.

All right. Did he say anything to the workers before he disappeared?—Well, it’s – it’s unsafe. You can’t be here.

And that’s what he said?—Yes.

224    Mr Bartley described a further CFMEU person who was present on 11 March 2015 as “tall, fit, with jeans and a black shirt [who climbed] up the scaffold near the concrete pump”. He stated in his statement that he “saw him kick the timber handrail”. The man described by Mr Bartley, it is concluded, was Mr Garvey. Mr Bartley went on to state that he heard this person say “in a raised voice”:

Get off the slab. Get off the slab now. Come over here. Get off the slab.

Mr Bartley observed that “other trades left the slab and BKH concreters stopped pouring because we didn’t know what was happening”. Mr Bartley went on to maintain that Mr Garvey said:

The railing is loose and unsafe. There’s a drop onto the scaffold.

Mr Bartley heard someone say:

That’s what the handrail is there for.

Mr Bartley then said:

It’s unsafe because I saw you kick it off.

225    When cross-examined by Counsel for Mr Garvey, Mr Bartley was taken to what was being said to the workers (“get off the slab”) and there was then the following exchange:

I’m going to put to you some other words that were said by …?—Yes.

… the fourth man: “Get away from the edge in case it falls away”?—No one got near the edge.

Okay. “The handrail is not fixed properly, it’s a falling from heights hazard”?—That’s because he kicked it.

He said those words though, didn’t he?—Yes, he said those words but it’s because of him.

Yes. “Somebody has to come and fix it properly”?—Yes.

And he didn’t kick it, did he?—Yes, he did.

…

So in the end, there would have been a pour occurring with dozens of concreters, correct?—Yes but there’s a gap.

Yes. At an edge where the handrail was missing?—The handrail was up.

Well, you say it was down?—After he kicked it.

And I put to you he didn’t kick it but it was down?—Yes.

And it wasn’t replaced?—It was by the time we went back there.

Okay?—Because we left the site at 1 o’clock.

Okay. But not prior?—No. I couldn’t tell you.

Did you in fact observe the handrail?—Before or after he kicked it?

When the handrail was on the ground, did you observe it?—No.

226    The account given by Messrs Webster and Bartley should be accepted. It is accepted that Mr Garvey deliberately kicked the handrail until it fell. Again, there was no authority conferred upon Mr Garvey or any other CFMEU person to order workers off the deck.

227    In respect to this expressed concern as to safety, it is concluded that there was no reasonable basis upon which any opinion could be formed that the handrail was unsafe. Any safety issue that did arise was caused by the conduct of Mr Garvey.

The disruption that followed

228    It is concluded that the activities of the CFMEU on 11 March 2015 had the consequence that:

    access to and from the Rhodes Site could not be achieved by the concrete trucks for the purpose of the concrete pour because two CFMEU cars had been deliberately parked in the driveway;

    a number of concrete trucks, including one which was already on Site and a number of other concrete trucks waiting to deliver concrete, were prevented from exiting or gaining entry to the Site;

    the “concrete that had been poured onto the deck had to be jackhammered up and removed because the structural integrity of the slab was deficient”; and

    by reason of those activities, BKH incurred costs in respect to the boom pump which had to be sent back on another day, that costs being approximately $200 per hour, and the costs of paying “idle workers who cannot perform work or are required to come back to the site on another occasion to finish the job”.

12 March 2015

229    On the following day, namely on 12 March 2015, members of the CFMEU attended at the Wolli Creek Site.

230    The relevant claim advanced in the Third Further Amended Statement of Claim (at par [82]) is that Mr Collier and other CFMEU officials “arrived at the Wolli Creek Site and entered the site exercising, or purporting to exercise, a right of entry pursuant to s.494 of the [Fair Work Act] and s.117 of the [Work Health and Safety Act 2011 (NSW)]”. Para [83] pleads that at the material time Mr Collier did not possess a Federal entry permit; that he “exercised or purported to exercise a ‘State or Territory OHS right’, within the meaning of s.494(2) of the [Fair Work Act]”; and that he refused to leave the Site when asked to do so by Mr Geracitano.

231    The relevant evidence was within a narrow compass.

232    Mr Geracitano maintained that he arrived at the Site office at about 7.00am. At about 7.30am he was informed by Mr Jason Flynn, the Site Manager, that “[t]he union is here”. Mr Geracitano went to the Site and at that time he saw “four union officials”, being Messrs Taylor and Tony Vicente and two other persons being “Brendan” and “Luke”. These two other persons were Mr Brendan Holl and Mr Collier.

233    Mr Taylor advised Mr Geracitano that he had “received a safety concern over the bracing … [o]n level one”. They proceeded to that level. On Mr Geracitano’s account, Mr Taylor gestured to one of the cross braces that did not have a correct pin and was held together with tie wire. Mr Taylor called for the engineering certificate for the formwork. Mr Geracitano told Mr Taylor that they get the “engineering certificate the day before we pour concrete” and that no concrete was being poured.

234    Mr Geracitano was told by Mr Power to get Mr Collier off Site because “he does not have a right of entry pass”. He approached Mr Collier and the following exchange occurred:

Geracitano:    You need to leave. Fair Work are on their way and you are not supposed to be here.

Collier:        I’m not scared of those grubs.

Geracitano:    Just leave.

Mr Geracitano observed Mr Collier walk off the Site at about 9.30am. Mr Collier walked to a nearby coffee shop, the Discovery Point Cafe.

235    At about 7.30am, Mr Smith saw Messrs Taylor, Holl and Collier standing “near the gate 4 inside the site”. He observed them “all commence what looked to be a site walk”. Shortly afterwards he was “advised” by a ProBuild staff member “that there were some concerns near a pit which ProBuild had dug out for drainage”. He was asked by the ProBuild staff member if he had an engineer’s certificate for the deck above the pit and, as it so happened, he had one with him. The CFMEU persons reviewed the certificate with the ProBuild worker.

13 March 2015

236    Although not the subject of any pleadings in the Third Further Amended Statement of Claim, there was a further meeting held on 13 March 2015 at the CFMEU office located in Pitt Street, Sydney.

237    The purpose of that meeting, according to Mr O’Sullivan, was to “try and resolve the dispute over the CFMEUAgreement”. Those in attendance were Messrs Parker and Kera from the CFMEU, Mr O’Sullivan and lawyers retained by Mr O’Sullivan (including Mr John Oakes). Mr Oakes began the meeting by identifying the contractor clause and the site allowance as being the “main issues” to be discussed. Reference was made to “old BLF tactics of raising sham safety issues”.

238    The meeting, apparently, descended rapidly.

239    After the reference to “sham safety issues”, Mr O’Sullivan maintained that Mr Kera started shouting as follows:

What does that mean? You’ve got your mate here taking notes and I thought this was supposed to be informal.

This was understood to be a reference to Mr Oakes’ assistant, who had a pad and pen in front of him. Mr Oakes responded:

There is nothing written on it. The lid is still on the pen.

Mr Kera picked up the pen and threw it across the room. He then approached Mr Oakes and shouted:

You come into my place of work and insult me. Get the fuck out of here.

Mr Parker then said:

Calm down.

15 March 2015 – organising the blockade

240    The relevant claim advanced in the Third Further Amended Statement of Claim (at para [84]) is that by “a text message sent on 15 March 2015, the CFMEU directed a number of CFMEU delegates to attend at the Wolli Creek Site on 16 March 2015 at 6:00am”. The Particulars to that claim state that “[a]t or around 12.22pm the CFMEU sent, or caused to be sent, a text message to mobile telephone numbers of a large number of CFMEU delegates directing their attendance at the Wolli Creek Site on 16 March 2015”. The text message stated:

Monday 16 March 6am all delegates required to attend at Cnr Boatman Place and Brodie Spark Drive, Wolli Creek

The CFMEU admits the text message, but denies that on its face the text message directed delegates to attend the Wolli Creek Site.

16 March 2015 – the 1st blockade

241    The Third Further Amended Statement of Claim alleges (at para [85]) that on 16 March 2015 “approximately 15-20 CFMEU officials and delegates attended the Wolli Creek Site”, including Messrs Kera, Razaghi, Parker, Collier, Darren Greenfield, Michael Greenfield and Sloane. It is further pleaded (at para [87]) that between approximately 5.00am to 7.15am these persons “and other officials, employees or agents of the CFMEU unknown to the Applicant but known to the CFMEU, blocked the main pedestrian entrance to the Wolli Creek Site in that the crowd impeded or obstructed access to the main pedestrian gate at the Wolli Creek Site”. It is separately pleaded (at para [89]) that between approximately 7.15am and 11.00am these same persons “were gathered in front of and in the immediate vicinity of the main pedestrian entrance to the Wolli Creek Site” and “access to the main pedestrian gate at the Wolli Creek Site had been blocked in that access to that gate was impeded or obstructed by the presence and conduct of the crowd”. The crowd “blockading the Wolli Creek Site”, it is pleaded (at para [90]) “remained in place until approximately 4:30pm”. Access to the main pedestrian gate is said to have been “impeded or obstructed” (at para [91]).

242    In answer to these allegations, by their Third Amended Defences, Messrs Kera and Parker admit the allegations in respect of their own conduct. Mr Razaghi admits that there was a group of 15 to 20 CFMEU officials and delegates attending at the Site, but denies that he was at the Site after 8.00am and that he blocked the main pedestrian access. Mr Collier availed himself of the privilege against penalty and accordingly did not plead to these allegations. The proceedings were discontinued against Messrs Darren Greenfield, Michael Greenfield and Sloane.

243    There was extensive evidence as to who was present and where they were standing and what was said by those in attendance.

244    At about 6.00am Mr Power maintains that there was the following exchange between himself and Mr Parker:

Power:        What’s the purpose of the picket?

Parker:        It’s in relation to support of ongoing negotiations with a subcontractor.

Power:    I am assuming it will be a peaceful picket because we intend to access the site.

245    A little later, at about 7.00am, Mr Power maintains that he and Messrs Geracitano and Lennox approached the pedestrian access and observed 6 to 8 individuals dressed in apparel with the words “CFMEU” printed on it. The group included Mr Kera. According to Mr Power, those persons were blocking the access. On Mr Power’s account, the “group filled the bowed footpath area in front of the pedestrian entrance” and “[n]o member of the group moved out of the way and they remained silent”. Mr Power maintained that he would have had to “physically push through the group standing in front of [him] in order to access the Site”. After about 30 seconds, Mr Power maintained that he said to Messrs Geracitano and Lennox “[c]ome on”. They turned and walked away.

246    Mr Power then rang the police.

247    At about 8.45am, Messrs Power, Geracitano and Lennox again approached the pedestrian access. According to Mr Power, he asked: “Guys, what’s the reason for the picket?” His question was met with silence. He then said: “What are you here for?” His question was again met with silence.

248    Mr Geracitano gave a similar account as to those present. On 16 March 2015, he arrived on Site at 6.00am and saw about thirty or forty people assembled in front of the main pedestrian gate. He recognised Messrs Collier, Holl, Parker and Kera. Shortly after 7.30am he walked to the gate together with (inter alia) Mr Power. He “found the way the group was assembled to be intimidating”. Mr Geracitano also gave evidence as to the “standard practice” of a person known as “Franco” unlocking the gates at about 5.00am. But on this morning, gate 3 – where the CFMEU persons were gathered – was still locked. The reason for this was exposed when he was taken to the paragraph in his affidavit which set forth this “standard practice” and thereafter there was the following exchange in his cross-examination:

And you talk, specifically, at paragraph 31, about one of the workers from a labour hire company engaged by Probuild open the gates and sheds at the site for workers each day and that this person was known as Franco and that it was his practice to open gate 3 and that if vehicle access was required, he would open the other gates. On this day, was the gate locked?—Yes.

Okay. So does that mean that Mr Franco had not opened the gate?—He couldn’t open the gate. It wasn’t our lock.

Well, sorry. It wasn’t your lock?—It wasn’t our lock. Franco couldn’t open the gate on that day.

Well, how do you know that he couldn’t open the gate?—Well, Probuild has the same key that opens all locks on our site. So on that particular morning Franco had noticed there was another lock locking that gate, and it wasn’t a Probuild lock.

There was then an objection and the cross-examination continued:

Well, I will put this to you: the lock was a Probuild lock, and Probuild had keys to it?—No. I – I disagree. It wasn’t a Probuild lock.

Did you see the lock?—I saw the lock. In fact, I’ve made several jokes about the lock.

How did you know that it was a Probuild lock or not?—Because the Probuild locks are a strong construction lock. The lock on that gate that particular morning was something bought from a 7-Eleven shop that you would put on your child’s bicycle, and we had a joke about that. So I – I remember the lock quite well.

Mr Geracitano again later approached the gate with Messrs Lennox and Power and observed Mr Kera give “a signal to the other union officials and delegates” by way of a “nod of his head”. He observed about six of the officials move “from being spread out to … standing shoulder to shoulder together” directly in front of him. To enter the gate, Mr Geracitano maintained that he “would have had to physically push through the group standing in front of” him which “would have required … physical contact with the people in the group”. He did not try to push his way through as he “found the way the group was assembled and the prospect of having to walk through the group intimidating”.

249    On Mr Power’s account, at about 9.00am Inspector Paul Callaghan, a NSW Police Officer, walked towards the group and had a conversation with Mr Kera. The Inspector returned to Mr Power and said:

I issued a move on request; they have ignored it as it was peaceful and it was a legal picket.

250    At about 11.30am, Mr Power had the following conversation with Mr Howlin:

Power:    Dermot [O’Sullivan] was here earlier saying that what is going on might have something to do with your enterprise agreement negotiations?

Howlin:        That’s right.

Power:    Look that’s a matter for you and the CFMEU, but can you keep me in the loop with your progress?

Howlin:    Sure.

According to Mr Power, he was told “around late afternoon” that the CFMEU were “packing up for the day”.

251    Mr O’Sullivan was told at about 6.30am on 16 March 2015 that the CFMEU had a “picket line” at the Wolli Creek Site. He arrived on Site at about 7.30am and recognised Messrs Kera, Parker, Sloane, Darren Greenfield, Michael Greenfield and Razaghi. Mr Sloane approached Mr O’Sullivan and the following exchange occurred:

Sloane:     Sign the EBA you can use my pen, we can get you a copy to sign right here, right now.

O’Sullivan:     You have got to be joking.

In cross-examination, Mr O’Sullivan maintained that he had “a memory of that discussion” and that his affidavit “exactly” set forth the entirety of the discussion. Mr O’Sullivan rejected a suggestion that Mr Sloane had not even spoken to him on that day. Mr O’Sullivan further maintained in his affidavit that “[a]s a result of the picket outside the Probuild site at Wolli Creek no BKH workers were able to access the site”. Later in the afternoon, Mr O’Sullivan had separate conversations with both Mr Parker and Mr Howlin. A meeting was arranged between Mr Howlin and Mr Parker for the following morning at a coffee shop in Rhodes. Mr O’Sullivan arrived near the coffee shop the following morning at about 6.00am. He rang Mr Howlin at about 9.30am to find out what was happening. Later in the day on 17 March 2015 he was told by Mr Howlin:

I have put you in charge of sorting out the wording of the site allowance clause.

Draft wording of this clause was exchanged between Mr O’Sullivan and Ms Rita Mallia of the CFMEU over a number of days.

252    Mr Morton gave evidence that at about 8.30am he observed about 45 to 50 people standing at the main Site entrance to the Wolli Creek Site. He maintained that the “people were standing close together in a group with most of them standing a couple of metres away from the gate”. Mr Pascoe approached the Site at about 8.30am and observed about 50 people and approximately 10 CFMEU flags in front of a driveway. He maintained that the “group of 50 people stood tightly together” and “were almost touching”. He recognised Messrs Parker, Kera and Collier standing as part of this group in front of the Site entrance. Mr Shao estimated that at about 7.15am there “were approximately 30 men with red CFMEU flags standing outside the Site”.

253    Mr Lennox maintained that at about 7.30am he and Mr Power decided to try to access the Site. They approached the gate and when they were about 1 metre from the gate Mr Lennox said words to the effect of:

I am from Probuild. I want to enter our construction site.

The two men said:

We’re not stopping you.

But Mr Lennox did not try to access the Site. The two men, Mr Lennox maintained, “remaining blocking [his] path to the gate” and he “would have had to push past them in order to go through the gates”. He was “not willing to physically push past them to enter the gate”.

254    Mr Smith arrived on Site at about 6.00am. As he approached the Site he observed about 30 to 40 people waving flags which had “CFMEU” written on them. Mr Smith parked his car and walked to the coffee shop. It was there that he spent the rest of the day. With him were 21 BKH workers. Ten of those workers left at around 9.00am to attend another job; the remaining 11 BKH workers waited in the coffee shop. According to Mr Smith, “a complete day’s productivity was lost”.

255    The account of the events as they unfolded on 16 March 2015 given by Messrs Power, Geracitano, O’Sullivan, Morton, Lennox and Smith is accepted. The acceptance of that evidence includes a finding that Mr Sloane did in fact make reference to the “EBA” and made the request that it be signed “right here, right now”.

16 March 2015 – organising the blockade

256    The Third Further Amended Statement of Claim alleges (at para [92]) that on 16 March 2015, the “CFMEU directed that a number of its delegates attend the Wolli Creek Site the following day on 17 March 2015 at 6.00am”. The Particulars flesh out this allegation by stating that at around 11.06am “the CFMEU sent, or caused to be sent, a text message to mobile telephone numbers of a large number of CFMEU delegates directing their attendance at the Wolli Creek Site”. The text message was as follows:

Further support needed Tues 17 March 6am all delegates required to attend at Cnr Boatman Place and Brodie Spark Drive, Wolli Creek, BBQ breakfast.

The Particulars further state that at around 11.30am the “CFMEU sent, or caused to be sent, an additional text message to 17 addressees (CFMEU delegates) directing their attendance at the Wolli Creek Site on 16 March 2015”. That text message was as follows:

Special request to all COM delegates we need your urgent assistance tomorrow morning Tues 17/3 6am. Cnr Boatman Place and Brodie Spark Drive, Wolli Creek. Please contact Rob Kera if you are unable to attend. BBQ breakfast.

257    The Third Amended Defence of the CFMEU admits the text messages referred to in paragraph [92] of the Third Further Amended Statement of Claim, but denies that the text messages on their face “directed delegates to attend at the Wolli Creek Site”.

17 March 2015 – the 2nd blockade

258    On 17 March 2015, the Third Further Amended Statement of Claim alleges (at para [93]) that between 6.00am and 7.30am a “crowd of persons attended the vicinity of the main pedestrian entrances of the Wolli Creek Site” including Messrs Kera, Holl and Collier. It is further alleged (at para [95]) that between those times “access to the main pedestrian gate to the Wolli Creek Site had been blocked, in that such access was impeded or obstructed, by the presence and conduct of a crowd of persons which included Kera, Holl, Sloane and other officials, employees or agents of the CFMEU unknown to the Applicant but known to the CFMEU”. A meeting, it is alleged (at para [96]), was held at around 7.00am between Messrs Howlin and Parker “to negotiate the terms of the CFMEU Proposed EA”. It is also alleged (at para [98]) that by reason of the matters pleaded “access to the main pedestrian gate for Wolli Creek Project workers, including managers from Probuild and BKH, Conbuild and Ultrabuild Employees, was impeded or obstructed until after 8.00am”.

259    The evidence in respect to these events included the following.

260    Mr Power walked towards the entrance to the Site at 7.00am and observed about 15 individuals then standing in a group at the access gate. Those men were wearing apparel with the CFMEU logo.

261    Mr Geracitano arrived on Site at about 7.00am and observed, in his estimate, about 30 or 40 individuals in front of the gate. He identified Messrs Collier, Holl and Kera. Mr Faiz’s estimate was that at about 7.00am he observed 10 to 15 people. The union officials he recognised were a Mr Yu Lei Zhou and Mr Sloane. Mr Armstrong estimated that at about 7.15am there were “around 20-25 men wearing shirts that had the letters ‘CFMEU’ on the chest and arms”.

262    Between about 7.30am and 8.00am the CFMEU officials collected their banners from outside the gates at the Wolli Creek Site and walked away.

263    Mr Power inspected the Site entrance at 7.50am and maintains that by that time the picket line was gone and the gate was able to be accessed shortly after that time.

17 March 2015 – the meeting between Messrs Howlin & Parker

264    On 17 March 2015 there was a meeting between Mr Howlin and Mr Parker.

265    Mr Howlin told Mr O’Sullivan about the meeting between himself and Mr Parker. At 6.34pm on 17 March 2015 Mr O’Sullivan sent to Mr Parker an email, the text of which relevantly stated as follows (without alteration):

Following todays meeting with Ben and Benny (BKH) this email is to confirm what was agreed.

The EBA be amended to exclude the following current projects from the site allowance entitlement

•    Project 177 North Sydney Leightons

•    ICC Exhibition Centre DHL Lend Lease

•    Four Points Hotel Multiplex

It was further agreed that Brian Parker would ensure that the builder’s at two projects

1)    Wolli Creek Probuild

2)    Harold Park Mirvac

Would increase the lump sum value of the contract figure by sufficient amount to cover the company BKH for the Site Allowance entitlement on those projects.

BKH will absorb the site allowance entitlement on the remaining projects

•    Garden Island Lend Lease

•    Rhodes Project Billbergia

•    Headland Park Lend Lease

It was further agreed that all industrial action from the CFMEU will cease immediately

This email, not surprisingly, attracted some attention at the hearing of the present proceeding.

266    When Mr Howlin was first questioned in chief by Counsel for the Commissioner, he gave evidence as to there only being one meeting between himself and Mr Parker and that the issue to be “sorted out” was the question as to the payment of a site allowance. No difficulty was experienced by Mr Howlin in providing that evidence.

267    But no reference was initially made by Mr Howlin in his evidence to any question as to BKH “absorb[ing]” the payment of the site allowance in respect to the three sites identified in the email or to any agreement that “all industrial action from the CFMEU will cease immediately”.

268    Leave was sought and granted to Counsel for the Commissioner to cross-examine Mr Howlin pursuant to s 38(1) of the Evidence Act 1995 (Cth). Section 38(1) provides as follows:

Unfavourable witnesses

(1)    A party who called a witness may, with the leave of the court, question the witness, as though the party were cross-examining the witness, about:

(a)    evidence given by the witness that is unfavourable to the party; or

(b)    a matter of which the witness may reasonably be supposed to have knowledge and about which it appears to the court the witness is not, in examination in chief, making a genuine attempt to give evidence; or

(c)    whether the witness has, at any time, made a prior inconsistent statement.

Mr Bailey, who appeared for Mr Howlin, did not oppose the grant of leave confined to the two issues identified, namely the absorbing of the payments by BKH and the ceasing of industrial action by the CFMEU.

269    Part of Mr Howlin’s cross-examination thereafter proceeded as follows:

I had asked you some earlier questions that you knew by 17 March that action was being taken by the CFMEU at Rhodes and Wolli Creek; correct?—Yes.

What I’m putting to you is another reason why you wanted to meet with Mr Parker was to get his agreement that that kind of action would stop; correct?—I went to – to agree the EBA and agree – agree the – agree the – agree the site allowance.

Is there a reason why you’re avoiding my very simple question?—I’m not avoiding the question. I’m just trying to answer you honestly.

You see …

HIS HONOUR: The question which is being put, Mr Howlin, is very simple. Was one of the reasons you wanted to meet with Mr Parker was to work out an agreement that the action being taken at Rhodes and Wolli Creek cease?—Yes.

So a reason why you wanted to meet with Mr Parker was to work out what it would take for the CFMEU to stop its industrial action which was underplay at Rhodes and Wolli Creek?—Yes.

The cross-examination concluded as follows:

Now, as a matter of fairness to you, Mr Howlin, I’m going to be inviting his Honour to – to draw an inference that some of the evidence that you’re giving, in particular respects, you are intentionally not giving an accurate recollection of events. What do you want to say about that?—I’ve given you an accurate – an accurate …

I …?—Every question you’ve asked me I’ve answered you.

As a matter of fairness to you, I’m – I’m putting you on notice that I – I will be making a submission to his Honour that on a critical item of evidence you have refused to answer questions to the best of your recollection and belief. What do you want to say about that?—I’ve given you – I’ve given you – I’ve given you answers to the best of – to the best of my recollection.

I want to – I want to put to you that the reason why you are being reluctant to – to – to accept certain propositions is because you want to maintain a cordial relationship with the CFMEU. What do you want to say about that?—That’s not true.

And I want to put to you that you are placing the interests of your relationship with Mr Parker and the CFMEU ahead of telling the truth in this court to the best of your knowledge, recollection and belief. What do you want to say about that?—That’s not true either.

270    It is concluded that an issue discussed between Mr Howlin and Mr Parker was the cessation of industrial action and that an agreement was in fact reached that industrial action was to cease in return for the payment of the site allowance at the Rhodes Site as sought by the CFMEU. Contrary to the assertion of Mr Howlin, it is concluded that Mr Howlin was reluctant to accept such questioning as suggested that a reason for the meeting was to secure agreement with Mr Parker to cease industrial action. It is further concluded that Mr Howlin was very conscious of trying to preserve a “cordial relationship” with the CFMEU and that this very much impacted upon the evidence he gave. The agreement reached between Mr Howlin and Mr Parker was the price paid for future industrial harmony with the CFMEU.

271    That conclusion is founded not only upon an assessment that:

    Mr Howlin was, at the very least, attempting to avoid answering the questions being put by Counsel for the Commissioner or not answering those questions as fully as a complete answer warranted

but also upon the fact that:

    industrial action was being undertaken by the CFMEU prior to 17 March 2015 as against BKH;

    on the previous day he had a conversation with Mr Power agreeing with the assessment that the attendance of the CFMEU on that day “might have something to do with your enterprise agreement negotiations”;

    industrial action was then being undertaken by the CFMEU at the Wolli Creek Site; and

    the industrial action ceased after 17 March 2015.

The pursuit of a campaign – the threads pulled together

272    Taken in context, it is concluded that the events as from 5 June 2014 all formed part of campaign being pursued by the CFMEU to secure the reintroduction of site allowances by putting pressure on BKH to sign the enterprise agreement it was proposing, including a term providing for the payment of a site allowance.

273    A number of facts when drawn together expose the campaign being pursued for what it was and expose the fact that any concern as to safety was not driving the conduct being engaged in by the CFMEU and its members.

274    Pulling but some of these facts together, the campaign it is respectfully concluded was evidenced by:

    the meeting on 5 June 2014 during which it has been found that Mr Taylor threatened to “smash” those who opposed the will of the CFMEU;

    the “[e]enie meenie miney mo!” text sent by Mr Kera later in the day;

    the fact that when Messrs Razaghi and Manna were invited to come back later on the morning of 11 March 2015, rather than being granted immediate access to the Rhodes Site, Mr Collier was called in;

    the conduct pursued by those CFMEU persons in attendance on 11 March 2015, including the parking of the cars in a manner to deliberately preclude concrete trucks gaining access to the Rhodes Site for the concrete pour, the directing of workers off the formwork and the deliberate conduct in kicking down the safety rail;

    the fact that the professed concerns as to safety voiced on 11 March 2015 were never followed up;

    the text sent on 16 March 2015 requesting “[f]urther support” at the Wolli Creek Site;

    the fact that so many CFMEU persons, and persons of seniority within the CFMEU, attended at the Rhodes Site and the Wolli Creek Site;

    the fact that there was no satisfactory explanation for why so many CFMEU persons attended at both the Rhodes Site and the Wolli Creek Sites, being geographical locations outside the normal geographical area of responsibility for many of the CFMEU persons who did attend; and

    the fact that the industrial action ceased immediately once agreement was reached with Mr Parker on 17 March 2015 as to the payment of a site allowance.

THE CONTRAVENTIONS

275    Many of the contraventions that were originally pleaded have been the subject of admissions made after that point in the proceeding where the evidence of the Applicant had been adduced and exposed to cross-examination.

276    A number of contraventions, however, remain to be resolved.

277    Each of these remaining contraventions are addressed in the order in which they are pleaded in the Third Further Amended Statement of Claim.

Contraventions of s 494: Mr Collier’s entry on 11 & 12 March 2015 without an entry permit

278    Section 494 of the Fair Work Act provides that to exercise a State or Territory OHS right, an official must be a permit holder.

279    The Third Further Amended Statement of Claim relevantly pleads that:

    on 11 March 2015 Mr Collier entered the Rhodes Site (at paras [56] to [60]); and

    on 12 March 2015 Mr Collier entered the Wolli Creek Site (at paras [82] to [83]).

Paragraphs [100] and [101] thereafter plead that in doing so Mr Collier exercised or purported to exercise a right of entry in circumstances where he did not hold an “entry permit” issued under s 512 of the Fair Work Act.

280    A contravention by Mr Collier of s 494(1) is alleged in respect to the entry on both 11 and 12 March 2015.

281    Mr Collier has admitted a contravention of s 494 on 12 March 2015 but denies a contravention on 11 March 2015.

282    There can be no doubt that Mr Collier entered the Rhodes Site on 11 March 2015. There is also no doubt that he did not have an entry permit. Mr Collier admitted as much to both Mr McBrien and Mr Webster.

283    According to the evidence of Messrs McBrien and Webster, whose evidence is accepted, Mr Collier was asked to produce his “right of entry card” and he said that “I don’t need one”. On 11 March 2015 Mr Collier was expressly denied any right to enter the Rhodes Site but nevertheless proceeded to do so and defied a request to leave. Mr Bartley, whose evidence has also been accepted, also gave an account of a conversation with Mr Collier on Site on 11 March 2015 whilst “measures were being taken to find a chain” to secure the hose to the concrete boom.

284    Notwithstanding the absence of any “permit” for the purposes of s 494 (or, indeed, any invitation to enter or be on the Rhodes Site), Mr Collier nevertheless entered the site and ostensibly sought to “exercise a State or Territory OHS right”. The inference that Mr Collier was seeking to exercise a State or Territory OHS right, and not being present on Site (as he would have it) to progress negotiations, is founded upon (inter alia) the fact that:

    he “was citing alleged safety issues along the way” when initially walking to where the concrete pour was to occur; and

    he actively involved himself with safety issues once he had moved to where the concrete pour was to occur, including (for example) his exchange with Mr Bartley telling him that the “strap” was unsafe.

Cf. Shepherd (1990) 170 CLR at 579; Chamberlain (1984) 153 CLR at 535.

285    The contravention by Mr Collier on 11 March 2015 of s 494 of the Fair Work Act is thus made out.

286    Similar to the conclusion reached at first instance in Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2015] FCA 1293, it is likewise concluded in the present case that:

    the alternative of finding that Mr Collier had entered the two sites “simply out of curiosity, or in the manner of [a person] committing a criminal trespass” is “so improbable as to be able to be disregarded”: cf. [2015] FCA 1293 at [84] per White J.

287    Although the entry by Mr Collier on 12 March 2015 at the Wolli Creek Site is the subject of an admission, it is nevertheless further concluded that Mr Collier must have known on that day that he had no right to do so given the refusal of any right of entry on the previous day – albeit to a different site. Moreover, on both days Mr Collier well knew that he did not in fact have an entry permit.

288    The only right of entry on either day which Mr Collier could possibly invoke would be either pursuant to an invitation to do so by the occupier or pursuant to a statutory right. There was no suggestion that he had been invited to enter. Indeed, he had been asked to leave and refused to do so. And he was not a “permit holder”, as required by section 494(1) of the Fair Work Act.

289    On both occasions, Mr Collier showed a total contempt for any requirement that he must have a lawful right to enter premises and displayed a belligerence on Site to those in lawful occupation of the premises.

The liability of the CFMEU

290    Left to be resolved, accordingly, is:

    the liability of the CFMEU for Mr Collier’s conduct on 11 and/or 12 March 2015.

This is the liability pleaded at para [101A] of the Third Further Amended Statement of Claim.

291    Paragraph [101A] pleads that “by reason of s550 of the [Fair Work Act], the CFMEU was ‘involved in’ the contraventions of s494 of the [Fair Work Act] by Collier”. There thereafter follows substantially the same Particulars for both the entry on 11 March 2015 at the Rhodes Site and on 12 March 2015 at the Wooli Creek Site.

292    Those Particulars in respect to the 11 March 2015 entry set forth the following two ways in which the liability of the CFMEU is sought to be established, namely:

    “one or both of Razaghi and Manna knew that by his conduct, Collier was exercising or purporting to exercise a State or Territory OHS right on 11 March 2015 at the Rhodes Site knowing that he did not hold an ‘entry permit’ under the [Fair Work Act]” and that “[t]heir conduct and the knowledge of at least one of them is attributed to the CFMEU by reason of s793 of the [Fair Work Act], making the CFMEU ‘involved in’ the contravention by Collier” (para [101A] 11 March 2015 Particular (a))

or, alternatively, that:

    “the ordinary and natural inference is that Collier was requested or directed to attend the Rhodes Site to exercise or to purport to exercise a State or Territory OHS Right at the Rhodes Site by an unknown official knowing that he did not hold an ‘entry permit’ under the [Fair Work Act]” and that the “conduct and the knowledge of the unknown official is attributed to the CFMEU by reason of s793 of the [Fair Work Act], making the CFMEU ‘involved in’ the contravention by Collier” (para [101A] 11 March 2015 Particular (b))

Those Particulars in respect to the 12 March 2015 entry substantially repeat the same alternative ways in which the liability of the CFMEU is sought to be established – with the exception that it is the knowledge of Mr Taylor that is relied upon.

293    The CFMEU by its Third Amended Defence admits that Mr Collier entered the Rhodes Site on 11 March 2015 and entered the Wolli Creek Site on 12 March 2015 (at para [100]). The CFMEU further admits that Mr Collier “exercised or purported to exercise a State or Territory OHS right at Chisolm Street Wolli Creek on 12 March 2015” and that he did not have an entry permit issued under s 512 of the Fair Work Act. The CFMEU admits Mr Collier’s contravention of s 494(1) of the Fair Work Act on 12 March 2015 (at para [101]). But the CFMEU does not admit the contraventions alleged in para [101A] of the Third Further Amended Statement of Claim.

294    In respect to the events on 11 March 2015 at the Rhodes Site it is concluded that both Mr Razaghi and Mr Manna were “knowingly concerned in or party to the contravention” of Mr Collier (s 550(2)(c)). Both knew by his conduct Mr Collier was ostensibly seeking to exercise a State or Territory OHS right and further knew that Mr Collier did not hold an entry permit.

295    The former inference as to Messrs Razaghi and Manna knowing that Mr Collier was seeking to exercise a State or Territory OHS right is founded upon (inter alia) the fact that:

    both were present when Mr Collier “was citing alleged safety issues along the way” when initially walking to where the concrete pour was to occur;

    both were present and in company with Mr Collier in the area where the concrete pour was to occur and all participated in the purported safety discussions; and

    all were present within close company one with the other – as evidenced by the many photographs taken on the day.

The latter inference as to the knowledge of Messrs Razaghi and Manna as to Mr Collier not having an entry permit is founded upon (inter alia) the fact that:

    Mr Collier not having an entry permit was well known within the CFMEU; and

    both Messrs Razaghi and Manna were present when Mr Collier was asked by Mr McBrien to show him the entry permit and Mr Collier said that he did not have one.

Cf. Shepherd (1990) 170 CLR at 579; Chamberlain (1984) 153 CLR at 535.

296    In respect to the events on 12 March 2015 it is concluded that Mr Taylor was “knowingly concerned in or party to the contravention” of Mr Collier (s 550(2)(c)). He knew that by his conduct Mr Collier was seeking to exercise a State or Territory OHS right and further knew that Mr Collier did not have an entry permit.

297    The former inference is founded upon (inter alia) the fact that:

    Mr Collier was observed by Mr Smith to “commence what looked to be a site walk” with Messrs Taylor and Holl and shortly thereafter concerns were raised near a pit which had been dug for drainage.

The latter inference is again founded upon (inter alia) the fact that:

    it was well known within the CFMEU that Mr Collier had lost his right of entry permit.

Cf. Shepherd (1990) 170 CLR at 579; Chamberlain (1984) 153 CLR at 535.

298    The knowledge of Messrs Razaghi and Manna on 11 March 2015 and the knowledge of Mr Taylor on 12 March 2015 is to be attributed to the CFMEU.

299    For the purposes of s 793 of the Fair Work Act:

    each of Messrs Razaghi, Manna and Taylor were “officer[s]” or “employee[s]” of the CFMEU; and

    each was acting “within the scope of his or her actual or apparent authority”.

300    It is concluded in respect to both the events on 11 and 12 March 2015 that the CFMEU assumes liability for the contraventions of s 494 in the same manner as Barker J found the CFMEU liable in Australian Building and Construction Commissioner v Upton [2017] FCA 847 at [227] to [235], (2017) 270 IR 190 at 237 to 239 for the contravention of s 500 – as was the provision of relevance in that case. Pursuant to ss 550 and 793, the CFMEU was “involved in” the contraventions and thus is “taken to have contravened” s 494 even though the CFMEU could not have itself contravened that section. Section 793(2) operates to attribute the state of mind of the CFMEU official to be the state of mind of the CFMEU itself.

The form of declaratory relief

301    The form in which the pleadings and the declaratory relief sought is expressed in respect to these two contraventions is worrying.

302    The pleading is that Mr Collier “purported to exercise a ‘State or Territory OHS right’, within the meaning of s.494(2) of the [Fair Work Act]” on 11 March 2015 (at para [60(c)]) and on 12 March 2015 Mr Collier “exercises or purported to exercise a ‘State or Territory OHS right’, within the meaning of s.494(2) of the [Fair Work Act]” (at para [83(b)]). The declaratory relief sought is that Mr Collier “contravened s 494(1) of the [Fair Work Act]” on both 11 and 12 March 2015 “by exercising or purporting to exercise a ‘State or Territory OHS right’ … when he was not a permit holder under s 512 of the [Fair Work Act]”.

303    But in Bragdon v Director of the Fair Work Building Industry Inspectorate [2016] FCAFC 64, (2016) 242 FCR 46 the Full Court expressed criticism of a finding made at first instance that Mr Bragdon (and another CFMEU person, Mr Kong) were “purporting” to exercise a State or Territory OHS power. In doing so, the Full Court concluded (at 57 to 58):

[63]    In the present case it was not necessary for the primary judge to be concerned with whether Messrs Bragdon and Kong were “purporting” to exercise a State or Territory OHS power (at least not so far as s 500 is concerned) because s 500 states its own criteria for engagement (ie exercise or seeking to exercise). In Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2015] FCA 1293, White J explained the second element of s 500 (in a way ultimately consistent with the underlying approach in Pine v Doyle [[2005] FCA 997, (2005) 222 FCR 291]) as follows:

[76]     It is appropriate to keep in mind that the second element of a s 500 contravention requires proof that the permit holder was exercising, or seeking to exercise, rights in accordance with Pt 3-4 of the [Fair Work Act]. This means that the second element will be established if the permit holder was, as a matter of fact, exercising (relevantly) the s 484 right or seeking to exercise that right. Permit holders may seek to exercise the s 484 right even though they are mistaken in their belief that there are employees on the site at the time of the entry, or that there are on the site employees whose industrial interests the permit holder’s organisation is entitled to represent, or that persons answering that description do wish to participate in discussions with them. Proof that each of the elements listed in s 484 pertained at the time of the official’s entry is not required, at least in respect of an allegation that the permit holder was seeking to exercise rights under Pt 3-4.

(Emphasis in original.)

[64]    Nevertheless, such a case must be proved. In our view, neither Mr Bragdon nor Mr Kong was exercising any State or Territory OHS right and nor were they “seeking to exercise” any such right. They did not have such a right and they did not proceed under any mistaken belief about their rights.

304    The same criticism as was directed by the Full Court in Bragdon to the finding made by the primary Judge may equally be directed to the manner of pleading and declaratory relief sought in the present proceeding. Section 494(1) is expressed simply in terms of a prohibition – namely, that an “official … must not exercise a State or Territory OHS right unless the official is a permit holder”.

305    Notwithstanding the manner of pleading and the declaratory relief sought, it is concluded that the decision in Bragdon is no impediment to a conclusion being reached (and declaratory relief being granted) that Mr Collier on both 11 and 12 March 2015 contravened s 494(1) by “exercising, or seeking to exercise” a right whilst not being a permit holder and that the CFMEU was involved in those contraventions.

Contraventions of s 500: Hindering or obstructing on 11 March 2015

306    Section 500 of the Fair Work Act prohibits a permit holder, when exercising or seeking to exercise rights, from intentionally hindering or obstructing any person or otherwise acting in an improper manner.

307    Contraventions of s 500 of the Fair Work Act are alleged against:

    Mr Razaghi (para [103(g)]);

    Mr Garvey (para [105(g)]); and

    Mr Manna (para [106(g)]).

These contraventions focus on the events on 11 March 2015 when each entered the Rhodes Site.

308    As against Messrs Razaghi and Manna, it is alleged that each entered the Site “with the intention and/or effect of hindering or obstructing each of BKH, Conbuild and Ultrabuild … and/or Holcim … and/or Billbergia” (para [102]). It may be noted at the outset that it is sufficient if contravening conduct is proven against BKH – the allegation, as pleaded, is expressed in the alternative.

309    As against Mr Garvey, it is alleged that he entered the Site and “acted in an improper manner” (at [102A]).

310    Para [106A] alleges that “by reason of s550 of the [Fair Work Act], the CFMEU was ‘involved in’ the contraventions of s500 of the [Fair Work Act] by each of Razaghi, Garvey and Manna”. The Particulars provided in elaboration as to the manner in which this attribution of involvement on the part of the CFMEU is sought to be made out separately contend that:

    in respect to Mr Razaghi, “one or more of Manna, Collier, Rigby or Garvey knew that by his conduct, Razaghi was exercising or seeking to exercise a right of entry … with the intention of hindering or obstructing another person or otherwise acting in an improper manner” and that their “conduct and the knowledge of at least one of them is attributed to the CFMEU by reason of s793 of the [Fair Work Act], making the CFMEU ‘involved in’ the contravention by Razaghi”;

    in respect of Mr Manna a like allegation is advanced as is advanced against Mr Razaghi;

    in respect to Mr Garvey, “either of Manna or Razaghi knew that by his conduct, Garvey was exercising or seeking to exercise a right of entry … and acting in an improper manner” and that their “conduct and the knowledge of at least one of them is attributed to the CFMEU by reason of s793 of the [Fair Work Act], making the CFMEU ‘involved in’ the contravention by Garvey”; and

    alternatively, “in circumstances where Razaghi, Garvey and Manna were exercising or seeking to exercise a right of entry … at the Rhodes Site and, in the case of Razaghi and Manna, with the intention of hindering or obstructing another person or otherwise acting in an improper manner; and in the case of Garvey, acting in an improper manner, the ordinary and natural inference is that each or all of them was requested or directed to attend the Rhodes Site by an unknown official to exercise or to seek to exercise a right of entry … with that intention or purpose” and that “[t]he conduct and the knowledge of the unknown official is attributed to the CFMEU by reason of s793 of the [Fair Work Act], making the CFMEU ‘involved in’ the contravention by Razaghi, Garvey and Manna”.

311    Mr Garvey has admitted a contravention of s 500. But the contraventions of s 500 by Messrs Razaghi and Manna remain to be resolved.

312    It is concluded that both Messrs Razaghi and Manna contravened s 500 of the Fair Work Act on 11 March 2015.

313    Their conduct on that day, of course, cannot be divorced from the events immediately prior to that date, including:

    the voting down of the CFMEU’s proposed enterprise agreement two weeks earlier; and

    the role played by both Messrs Razaghi and Manna as recorded in the December 2014, March and August 2015 editions of UNITY in the campaign to secure an enterprise agreement which contained a site allowance.

314    Nor can their conduct be divorced from the fact that:

    access to the Rhodes Site was being blocked by the two CFMEU cars parked across the driveway; and

    a considerable number of senior CFMEU persons were in attendance at a building site not normally within the geographical area for which any of those persons had immediate responsibility.

315    But, even confined to the facts that occurred on 11 March 2015 and by reference to their own conduct, the contraventions of s 500 have been made out. When seeking to enter the Rhodes Site, each was “exercising, or seeking to exercise” rights of entry as permit holders. Hence their purported reliance upon safety concerns. It has been further concluded that:

    when seeking entry to the Rhodes Site on 11 March 2015 neither Mr Razaghi nor Mr Manna had any genuine concern as to safety – the information that had been communicated to Mr Razaghi “[a] day or two prior” to 11 March 2015 by the unidentified worker being manifestly inadequate to form any reasonable grounds for believing that there was a genuine concern as to safety let alone a concern as to safety which warranted immediate access being granted to the Site; and

    even after entry had been secured to the Rhodes Site, their object and purpose was to achieve the cessation of the concrete pour and the disruption of the work scheduled for that day – each of the purported concerns as to safety which were raised being immediately addressed, were caused by an agent of the CFMEU or were entirely baseless.

Although Mr Razaghi seems to have taken a more prominent role in the events of that morning, Mr Manna cannot hide behind the conduct of another. Mr Manna himself was also taking an assertive role by (for example) telling Mr Webster that “[i]t’s a safety issue” and that “[i]t’s beyond our control and we have to investigate immediately”. Another example is provided by Mr Manna, once on Site, telling Mr Manuel that the chain which had been provided to secure the hose to the boom was “not good enough” and it “has not been certified”.

316    There can be no question but that the scheduled concrete pour was disrupted. Such work as had been performed prior to work ceasing on that day had to be jackhammered up and removed.

317    It is also separately concluded that each had the intention of hindering or obstructing the persons doing the work scheduled for that day, that finding being an inference founded upon (inter alia):

    the insistence on being granted an immediate right of access and not being satisfied by the offer to defer access until 10.30am when a scheduled safety walk was to occur;

    the phone call between Mr Hanlon and Mr Razaghi when Mr Razaghi was told that if he could not do his “fucking job”, Mr Hanlon would get someone (namely Mr Collier) who could – the inference being that the “fucking job” was not to investigate concerns as to safety (whether well founded or not) but rather to cause a cessation of scheduled work;

    the fact that each of the purported safety concerns was immediately addressed only for another purported safety concern to be raised and also immediately addressed; and

    their knowledge of the work being undertaken prior to and upon their entry to the Site.

Cf. Shepherd (1990) 170 CLR at 579; Chamberlain (1984) 153 CLR at 535

318    In respect to the conduct of Mr Razaghi on 11 March 2015:

    Mr Manna knew that Mr Razaghi was seeking to exercise a right of entry and further knew that Mr Razaghi by his conduct was intentionally setting out to hinder or obstruct the scheduled work – so much follows from their joint entry upon the Site and their joint conduct thereafter, including the concerns being expressed in respect to (as they would have it) safety concerns and the fact that each of those safety concerns was immediately addressed once raised or was entirely baseless.

It is also concluded in respect to the conduct of Mr Razaghi on 11 March 2015 that:

    Mr Collier knew that Mr Razaghi was seeking to exercise a right of entry and further knew that Mr Razaghi by his conduct was intentionally setting out to hinder or obstruct the scheduled work – so much follows from the fact that Mr Collier had been sent out to the Rhodes Site when Mr Razaghi was unable to secure immediate entry and by reference thereafter to the joint conduct on Site.

Like findings are also made in respect to the conduct of Mr Manna – but, in his case, it is of course Messrs Razaghi and Collier who had the requisite knowledge. These findings, it is considered, make out the first two Particulars provided in respect to para [106A] of the Third Further Amended Statement of Claim.

319    It is also concluded that the third Particular provided in respect to para [106A] has been made out. Mr Garvey has admitted his contravention of s 500. Separate from that admission, however, it is concluded that both Messrs Razaghi and Manna knew that Mr Garvey was “act[ing] in an improper manner” when exercising his right of entry to the Rhodes Site – that knowledge being founded upon the presence of both Mr Razaghi and Mr Manna in the vicinity of the concrete pour when Mr Garvey engaged in his conduct of kicking down the safety rails. Any suggestion that Mr Garvey was simply testing the strength of the safety rails is rejected; his conduct was that of a man intent on creating disruption and generating a safety concern where none previously existed.

320    It is again concluded that the CFMEU assumes liability for these contraventions of s 500 and for the same reasons as expressed by Barker J in Australian Building and Construction Commissioner v Upton [2017] FCA 847 at [227] to [235], (2017) 270 IR 190 at 237 to 239. Pursuant to ss 550 and 793, the CFMEU was “involved in” the contraventions and is thus “taken to have contravened” s 500 even though the CFMEU could not have itself contravened that section. Section 793(2) operates to attribute the state of mind of the CFMEU official to be the state of mind of the CFMEU itself.

321    No finding is made in respect to the last Particular provided in respect to para [106A]. As correctly submitted on behalf of the CFMEU, it would be difficult to draw an inference that the knowledge of some unidentified person should be attributed to the CFMEU.

Contraventions of ss 340 & 343: Coercive conduct on 5 June 2014

322    Following the amendments effected by the Third Further Amended Statement of Claim, contraventions are alleged which focussed on the events occurring on 5 June 2014 and the conduct of:

    Mr Taylor; and

    Mr Kera.

Contraventions are also alleged against:

    the CFMEU.

323    By reason of his conduct on 5 June 2014, it is alleged that Mr Taylor:

    contravened s 343 of the Fair Work Act (at para [114]);

    contravened s 340 of the Fair Work Act (at para [118]).

It is further pleaded, and pleaded in the alternative, that Mr Taylor by reason of his conduct on 5 June and by reason of s 550 of the Fair Work Act:

    was “involved in” Mr Kera’s contraventions of ss 340 and 343 (at para [121]) and is therefore taken to have contravened those sections.

324    By reason of his conduct on 5 June 2014, it is alleged that Mr Kera:

    contravened s 343 of the Fair Work Act (at para [115]);

    contravened s 340 of the Fair Work Act (at para [119]).

An earlier allegation that Mr Kera was “involved in” Mr Taylor’s contravention has been abandoned (at para [123]).

325    It is further pleaded that by reason of the conduct of Messrs Taylor and Kera on 5 June 2014:

    the CFMEU by reason of ss 363 and 793 of the Fair Work Act “engaged in the conduct pleaded” and threatened to take or threatened to organise action with the intent to coerce BKH and/or Conbuild to exercise its workplace right in a particular way and thus contravened s 343 of the Fair Work Act (at paras [111], [112] and [113]).

It is further pleaded, or pleaded in the alternative, that:

    the CFMEU threatened to take adverse action (within the meaning of item 7(c) of s 342(1) of the Fair Work Act) or threatened to organise adverse action against BKH Contractors, Conbuild and/or Ultrabuild because BKH Contractors and/or Conbuild had exercised or not exercised or proposed not to exercise a workplace right and thus the CFMEU contravened s 340 of the Fair Work Act (at paras [116] and [117]).

326    Each of these contraventions remains to be resolved.

327    A contravention of s 340 requires proof that a person has taken “adverse action”, that such action is taken “against another person” and done so “because” that other person (for example) proposes to exercise a “workplace right”. And proof of a contravention of s 343 requires proof of an “intent to coerce” (cf. Australian Building and Construction Commissioner v Hall [2017] FCA 274). Proof of an “intent to coerce” requires proof of two elements – first, an intent to exert pressure that in a practical sense will negate choice; and second, that the exertion of the pressure must involve conduct that is unlawful, illegitimate or unconscionable: cf. Seven Network [2001] FCA 456 at [41], (2001) 109 FCR 378 at 388 per Merkel J. An intention to negate choice requires a “high degree of compulsion”: National Tertiary Education Industry Union v Commonwealth of Australia [2002] FCA 441 at [103], (2002) 117 FCR 114 at 143 per Weinberg J.

328    It is concluded that the contraventions of ss 340 and 343 by Mr Taylor on 5 June 2014 and his “involvement” in the conduct of Mr Kera have been made out.

329    It is also concluded that the contraventions of ss 340 and 343 by Mr Kera on 5 June 2014 have been made out.

330    The “workplace right” in both cases was the right of the subcontractors to negotiate their own enterprise agreements and not to yield to the agreement being proposed by the CFMEU. And any invalidity with respect to a Notice of Employee Representational Rights under s 173 of the Fair Work Act, it has been concluded, does not preclude the exercise of the right to initiate negotiations for an enterprise agreement.

331    For the purposes of s 340, it is concluded that the “adverse action” which was taken by Messrs Taylor and Kera was the threat to take action as an officer or a member of an industrial association which would have the effect of “prejudicing the independent contractor in relation to a contract for services” within the meaning of item 7(c) of s 342(1) of the Fair Work Act. BKH in providing concrete and formwork services fell within the phrase “independent contractor”: cf. Webb Dock Case [2017] FCA 62 at [48] per Jessup J. In the case of Mr Taylor, that action was the threat to “smash” the jobs of one or other of those formwork subcontractors attending the meeting or to “pick one of you and come after you”. A submission advanced on behalf of Mr Taylor that the words spoken, if established, were spoken to the assembled persons and that a “generic threat does not trigger the sections” is rejected. In the case of Mr Kera, the adverse action was the threat conveyed by the text message “Eenie meenie miney mo!” which Mr Kera sent to Mr O’Sullivan. The submission advanced on behalf of Mr Kera that the meaning of the text message is “deeply ambiguous” is rejected. “Adverse action” includes “threatening to take action”: s 342(2). There was, it is concluded, no ambiguity in the threat made by Mr Kera to Mr O’Sullivan.

332    For the purposes of s 343, the intent to coerce on the part of Mr Taylor is an inference drawn from the context in which the CFMEU were pursuing their campaign to secure agreement to their proposed version of the enterprise agreement, the context in which the words were spoken and the very words themselves. In the case of Mr Kera, his intent to coerce is an inference drawn from the words used, the natural inference being that one of the formworker companies would be chosen and thereafter pursued by the CFMEU until it yielded to the CFMEU’s industrial action. The conduct of both Mr Taylor and Mr Kera was taken with the intent to negate any choice on the part of the formwork company which was to be pursued and “smashed”.

333    For the purposes of s 343(1), it is thus concluded that both Mr Taylor and Mr Kera “threaten[ed] to … take …. action” against one of the formwork companies and that both did so “with intent to coerce”.

334    The conclusion that Mr Taylor was “involved in” the contraventions of Mr Kera is an inference founded upon (inter alia) the campaign being mounted by the CFMEU and the common objective being pursued of exerting pressure upon contractors to ensure agreement to the CFMEU’s proposed enterprise agreement. Mr Taylor was “involved in” the contraventions of Mr Kera by reason of being “directly or indirectly, knowingly concerned in or party to the contravention” for the purposes of s 550(2)(c) of the Fair Work Act. Mr Taylor was “implicat[ed] or involve[d]” in Mr Kera’s contraventions such that there was a “practical connection” between Mr Kera and the contraventions: South Jin [2015] FCA 1456 at [227] per White J.

335    Messrs Taylor and Kera as well as the formwork companies were “persons” for the purposes of ss 340 and 343.

336    It is also concluded that the CFMEU contravened s 343 in the manner as pleaded in paras [111] to [113] of the Third Further Amended Statement of Claim.

337    The conduct of both Messrs Taylor and Kera was conduct which was pursued by them as “an officer, employee or agent” of the CFMEU and such conduct was “within the scope of his … actual or apparent authority” for the purposes of s 793(1)(a) of the Fair Work Act. Both the reason why the “adverse action” was taken and the “intent to coerce” on the part of both Messrs Taylor and Kera is taken to be “the state of mind” of the CFMEU: s 793(2).

338    It is also concluded that the CFMEU contravened s 340 as pleaded in paras [116] and [117].

Contraventions of s 343: Coercive conduct on 11, 16 & 17 March 2015

339    Following the amendments effected by the Third Further Amended Statement of Claim, contraventions were alleged that:

    “by reason of ss 363 and 793 of the [Fair Work Act], the CFMEU engaged in” identified conduct on 11 March 2015 of Messrs Razaghi, Manna, Collier, Garvey, Rigby, Holl, Hanlon and (in the alternative to the conduct alleged against Messrs Collier and Rigby) the conduct of “an officer, employee or agent of the CFMEU who is unknown to the Applicant but known to the CFMEU” (at paras [133] to [135]) and thereby contravened s 343 of the Fair Work Act (at paras [136] to [137]);

    Mr Collier contravened s 343 of the Fair Work Act by reason of his conduct on 11 March 2015 (at para [140]);

    “by reason of ss 363 and 793 of the [Fair Work Act], the CFMEU engaged in” identified conduct on 16 March 2015 of Messrs Kera, Razaghi, Parker, Collier, Darren Greenfield, Michael Greenfield, Sloane and “officers, employees or agents of the CFMEU who are unknown to the Applicant but known to the CFMEU” (at paras [145] to [147]) and thereby contravened s 343 of the Fair Work Act (at paras [148] to [149]);

    Mr Kera contravened s 343 of the Fair Work Act by reason of his conduct on 16 March 2015 (at para [150]);

    Mr Parker contravened s 343 of the Fair Work Act by reason of his conduct on 16 March 2015 (at para [152]);

    “by reason of ss 363 and 793 of the [Fair Work Act], the CFMEU engaged in” identified conduct on 17 March 2015 of Messrs Kera, Holl, Collier and “officers, employees or agents of the CFMEU who are unknown to the Applicant but known to the CFMEU” (at para [157] to [159]) and thereby contravened s 343 of the Fair Work Act (at paras [160] to [161]); and

    Mr Kera contravened s 343 of the Fair Work Act by reason of his conduct on 17 March 2015 (at para [162]).

Each of these allegations is the subject of admissions, albeit in some cases limited admissions.

CONCLUSIONS

340    The contraventions which were not the subject of agreement have been resolved.

341    It has been concluded that those remaining contraventions have been made out.

THE ORDER OF THE COURT IS:

The parties are to bring in Short Minutes of Orders to give effect to these reasons within 14 days.

Associate:    

Dated:    7 February 2018

SCHEDULE OF PARTIES