FEDERAL COURT OF AUSTRALIA

Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (The Bay Street Case) [2018] FCA 83

ORDERS

THE COURT ORDERS THAT:

1.    The proceeding be listed for a case management hearing on a date to be fixed.

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

REASONS FOR JUDGMENT

BROMBERG J:

1    The applicant (“Commissioner”) seeks declarations and penalties flowing from alleged “adverse action” (s 346) and “action with intent to coerce” (s 348) said to have been taken by the second (“Long”) and third (“Benstead”) respondents on behalf of the first respondent (“CFMEU”) for the reason that a building contractor engaged in “industrial activity” within the meaning of s 347(b)(iv) or (v) of the Fair Work Act 2009 (Cth) (“FW Act”). Unless the context dictates otherwise, a reference in these reasons to the CFMEU is a reference to all of the respondents.

2    Broadly stated, the Commissioner’s case is that the CFMEU initiated a work stoppage in breach of the general protection provisions of the FW Act. The CFMEU had requested that Tarastar Pty Ltd, trading as BPM Built (“BPM”), head contractor at a construction site at 209-213 Bay Street, Brighton (“site”), provide additional amenities for the workers at the site, including more shed space and a dedicated toilet for female workers. BPM initially resisted the expansion of amenities. The subsequent stop work action taken by workers at the instance of the CFMEU in response to that resistance was said to have been alternatively adverse action in contravention of s 346(b) or coercion in contravention of s 348 of the FW Act.

3    Section 346 of the FW Act provides as follows:

346    Protection

A person must not take adverse action against another person because the other person:

(a)    is or is not, or was or was not, an officer or member of an industrial association; or

(b)    engages, or has at any time engaged or proposed to engage, in industrial activity within the meaning of paragraph 347(a) or (b); or

(c)    does not engage, or has at any time not engaged or proposed to not engage, in industrial activity within the meaning of paragraphs 347(c) to (g).

Note: This section is a civil remedy provision (see Part 4-1).

4    Adverse action is defined in s 342 of the FW Act. Item 7 of s 342(1) is of particular significance to the Commissioner’s case. It relevantly provides:

342    Meaning of adverse action

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

…

5    Section 348 is in the following terms:

348    Coercion

A person must not organise or take, or threaten to organise or take, any action against another person with intent to coerce the other person, or a third person, to engage in industrial activity.

Note: This section is a civil remedy provision (see Part 4-1).

6    The case of the Commissioner depends substantially upon the characterisation of BPM’s failure to comply with the request of the CFMEU as BPM having engaged in “industrial activity” within the meaning of s 347(b) of the FW Act. Specifically, the Commissioner says that the conduct of the CFMEU in relation to the amenities on site amounted to a “lawful request … or requirement” within the meaning of s 347(b)(iv), and by that not complying with that request, BPM engaged in industrial activity. Alternatively, the Commissioner said that BPM engaged in industrial activity, through its non-compliance, by not “represent[ing] or advanc[ing] the views, claims or interests of [the CFMEU]” for the purposes of s 347(b)(v).

7    It is convenient that I set out s 347 in full. It provides as follows:

347    Meaning of engages in industrial activity

A person engages in industrial activity if the person:

(a)    becomes or does not become, or remains or ceases to be, an officer or member of an industrial association; or

(b)    does, or does not:

(i)    become involved in establishing an industrial association; or

(ii)    organise or promote a lawful activity for, or on behalf of, an industrial association; or

(iii)    encourage, or participate in, a lawful activity organised or promoted by an industrial association; or

(iv)    comply with a lawful request made by, or requirement of, an industrial association; or

(v)    represent or advance the views, claims or interests of an industrial association; or

(vi)    pay a fee (however described) to an industrial association, or to someone in lieu of an industrial association; or

(vii)    seek to be represented by an industrial association; or

(c)    organises or promotes an unlawful activity for, or on behalf of, an industrial association; or

(d)    encourages, or participates in, an unlawful activity organised or promoted by an industrial association; or

(e)    complies with an unlawful request made by, or requirement of, an industrial association; or

(f)    takes part in industrial action; or

(g)    makes a payment:

(i)    that, because of Division 9 of Part 3-3 (which deals with payments relating to periods of industrial action), an employer must not pay; or

(ii)    to which an employee is not entitled because of that Division.

8    At a pre-trial conference in the week before the trial, I granted leave to the CFMEU to substantially amend its Defence in the proceeding, such that the issues remaining in dispute narrowed significantly. By its Further Amended Defence, the CFMEU admitted all of the material facts pleaded in the Commissioner’s Further Amended Statement of Claim. In substance, what remained of the CFMEU’s case was the denial that BPM’s actions may be characterised as “industrial activity”.

Background

9    It is convenient that I set out a chronology of significant circumstances which gave rise to the present dispute.

10    As I have indicated, all of the material facts relied upon by the Commissioner in his Further Amended Statement of Claim have been admitted by the CFMEU in its Further Amended Defence. The Commissioner nevertheless elected to lead evidence in support of his case, including by calling two witnesses. Neither of the Commissioner’s witnesses were cross-examined by the CFMEU, and the subject of the evidence tendered was otherwise uncontroversial.

11    However, it was precisely because the evidence was uncontroversial that the CFMEU objected to its tender. It was said that evidence going to a fact which had been admitted was not evidence going to a fact in issue, and was therefore not relevant and inadmissible.

12    Rather than dealing with the objections to the evidence on a case by case basis at the time, it was agreed between the parties that all of the Commissioner’s evidence would be admitted subject to that overarching objection. The Commissioner accepted that in dealing with the evidence in this way, he would be more strictly confined to the case put in his Further Amended Statement of Claim. First, the Commissioner would foreclose any opportunity to amend his Further Amended Statement of Claim if evidence were later found not to go to any material fact in issue. Second, it would also follow that where a matter had not been pleaded, the Commissioner could not later contend on the basis of evidence the subject of objection that the matter was nevertheless “in the ring”.

13    With all of this in mind, I propose to recount the background facts below taking into account all of the evidence not objected to. I shall address some specific issues that arise under the objection or in relation to the pleadings in the course of my consideration of each of the claims, but broadly speaking it has not been necessary to take into account the evidence the subject of objection. If it had been necessary to do so I would have upheld the CFMEU’s objection on the basis that the evidence travelled beyond the facts in issue as identified on the pleadings.

14    At all material times, BPM was the head contractor on a building project to deliver a large residential apartment building at the site. The estimated value of the project was between $20 million and $30 million and was scheduled to take over a year to complete. BPM engaged Straight Line Excavations Pty Ltd (“SL Excavations”) to carry out building work at the site, including piling, excavations, steel fixing and other services. SL Excavations in turn engaged its own employees to work at the site, as well as independent contractors, including Wagstaff Piling Pty Ltd (“Wagstaff”). At the material times relating to the dispute, employees of Wagstaff were on site performing piling works required in the early stages of the project.

15    At all material times Long and Benstead were officers and employees of the CFMEU, acting in that capacity. On Monday, 20 April 2015, Long and Benstead attended the site and introduced themselves to Rob Finney (“Finney”), Senior Site Supervisor for BPM.

16    The next day, on 21 April 2015, Benstead returned to the site alone and held discussions, first with Finney, then with Wagstaff workers on the site. Following the meeting with workers, Benstead held a further discussion with Finney, during which he said to Finney words to the effect of, “Your amenities aren’t big enough”. Finney denied that the amenities were inadequate. Benstead also told Finney that the female worker on site needed a dedicated female toilet. Finney explained to Benstead that arrangements had been made, in consultation with Worksafe and the female worker, that would allow her to use the existing toilets on site. Benstead then asked Finney why BPM had not signed an enterprise bargaining agreement (“EBA”), to which Finney replied that it was not feasible for the business to do so, and in any event that such matters were outside his responsibilities. Benstead also asked Finney for the phone number of BPM’s Construction Director, but Finney told Benstead to instead call the BPM head office.

17    Later that afternoon, after Benstead had left the site, Benstead held a telephone conversation with Luke Skurrie (“Skurrie”), BPM’s Construction Manager. During the conversation, Benstead identified to Skurrie that there were “a few problems” at the site and requested a meeting. Skurrie said in response to Benstead that BPM was happy to address any issues or problems and said that they had a good relationship with Worksafe. Benstead then identified the two problems as being, “There is no ladies’ toilet for the lady that’s on site and the sheds aren’t big enough”. In response, Skurrie explained the arrangement that had been devised for the female worker to use the toilets, but said in any event, “I’ll speak to Rob and get a separate toilet sorted out for her”. He also explained that the shed accommodated 18 workers, and there were 16 workers on site at that time. Benstead then said to Skurrie, “We also believe a job that size is an EBA job and you really should have an EBA”. Benstead also indicated that the CFMEU considered that they should have somebody from the union on site to oversee safety on the site. Following the conversation between Skurrie and Benstead, BPM did not make any change to the amenities on site on 21 April 2015.

18    The next day, on 22 April 2015, Long and Benstead attended the site and held discussions with workers. Finney initially resisted Long and Benstead entering the site to hold discussions without “the correct paperwork and notice”, but ultimately relented because he did not want to antagonise the CFMEU. Following the meeting, Long told Finney that he was “sending the boys home because the amenities aren’t up to standard”. Finney tried to protest that the sheds were large enough to accommodate all 16 workers on site, but neither Long nor Benstead responded. Workers employed by Wagstaff walked off site between about 1 and 1.30pm. The usual finishing time on the site was 5.30pm.

19    On the afternoon of 22 April 2015, after the stoppage, Finney ordered an additional site shed and a portable toilet to be delivered to the site immediately. He ensured that the amenities were installed before 23 April 2015. In an email to SL Excavations on 22 April 2015, Finney explained that BPM had “installed an additional 6m by 3m lunch shed today to appease the Unions requirements and job’s development over the next few weeks”.

20    On 23 April 2015 Benstead attended the site alone. Finney pointed to the new expanded amenities, to which Benstead replied, “I got you all wrong, maybe you guys aren’t cowboys after all”. Benstead left the site and workers attended and worked as scheduled.

Industrial activity

21    The Commissioner’s case in relation to the alleged contraventions of ss 346(b) and 348 depends upon him establishing that BPM engaged in “industrial activity” within the meaning given to that phrase by s 347(b)(iv) or (v) of the FW Act.

22    Following the amendment of its defence, the CFMEU filed a supplementary written outline of submissions by which it contended that s 347 had no application to the circumstances of the case. In particular, it was said that Division 4 of Part 3-1 of the FW Act is concerned only with the protection of a person’s freedom of association and participation or non-participation in the activities of industrial associations. It was noted that the protections all related to the right to be members or officers of industrial associations and the right to participate in lawful activities. It was contended that paragraphs (i)–(v) of s 347(b) were designed to protect participation in the activities of industrial associations, and were not about action more generally by industrial associations against employers. The CFMEU noted that other provisions of the Act are directed to protecting employers against such actions. The CFMEU drew heavily on the Explanatory Memorandum to the Fair Work Bill 2008 (Cth) (“Explanatory Memorandum”) to support its preferred construction of s 347.

23    In support of its contention that compliance or not by any person with any request of a union would amount to engaging in “industrial activity” for the purposes of s 347(b)(iv), the Commissioner relied upon the judgment of Jessup J in Esso Australia Pty Ltd v The Australian Workers’ Union [2015] FCA 758. In that case Jessup J accepted a submission that a company had engaged in “industrial activity” within the meaning of s 347(b)(iv) by not complying with a request made by a union to enter into an enterprise agreement. At [198]-[199] his Honour explained:

[198]    Prior to the enactment of the FW Act, provisions that bear some resemblance to those of Divs 3 and 4 of Pt 3-1 of that Act were to be found in Divs 4 and 6 of Pt 16 of the WR Act. But the provisions were subject to wholesale recasting in the FW Act, as a matter both of drafting and of content. Generally, the protections are now much broader - in scope and in the generality of the terms in which they are expressed - than they were. The prohibitions in the WR Act tended to be organised by reference, as it were, to who did what and to whom. In a situation analogous to the facts of the present case, for example, s 796 dealt with the subject, “industrial associations acting against employers”. But neither this provision nor any other in Divs 4 or 6 of Pt 16 of the WR Act made it unlawful for such an association to take action against an employer on account of the latter being able to make, or proposing to make, a workplace agreement (see now s 341(2)(e) of the FW Act).

[199]    More directly to the point of the respondent’s present submission, there was, in the WR Act, nothing which provided any protection for an employer engaging in industrial activities. In this respect, ss 346 and 347 of the FW Act must be regarded as substantive instruments of law reform. Through the operation of s 347(b)(iv), it is now recognised that any person may “[engage] in industrial activity” if he or she does not comply with a request made by, or with a requirement of, an industrial association. In particular situations, there may be an area of overlap as between this provision and s 341(2)(e), but each, in my view, is a substantive provision to which effect must be given. I can see no sign of any legislative intention that, as a matter of construction, s 347(b)(iv) was to have no operation where the request or requirement was to make an enterprise agreement, at all or on particular terms.

24    The Commissioner also pointed to a number of other decisions of this Court in which it was said to have been held that circumstances unrelated to the activities of members within an industrial association may fall within the definition of industrial activity, however in only one of those cases was the Court required to so hold: Director of Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union (The Red & Blue Case) [2015] FCA 1125 at [118]–[119] (Jessup J).

25    To that authority may be added a more recent decision of Jessup J, decided after the close of argument in the present proceeding. In Australian Building and Construction Commissioner v Australian Manufacturing Workers’ Union (The Australian Paper Case) [2017] FCA 167, Jessup J engaged in a more comprehensive consideration than that which his Honour had undertaken in Esso on whether an employer had engaged in “industrial activity” within the meaning of s 347(b)(iv) by not complying with an industrial claim made by a union. That judgment included consideration of the Explanatory Memorandum and confronted a similar argument to that made by the CFMEU in this case, that insufficient attention had been given to the Explanatory Memorandum by the judgment of Jessup J in Esso.

26    Each party was given an opportunity to make and made additional submissions addressing The Australian Paper Case.

27    In that case, at [180]–[181], Jessup J engaged in an historical analysis of the relevant predecessor provisions to Div 4 of Part 3–1 of the FW Act. In particular, his Honour noted that all of s 5 of the Conciliation and Arbitration Act 1904 (Cth), ss 334(1)(h)–(j) of the Industrial Relations Act 1988 (Cth), ss 298L(m)–(n) of the Workplace Relations Act 1996 (Cth) (“WR Act”) and ss 793(1)(n)–(o) of that Act following the 2005 Work Choices amendments were specifically limited to conduct done as a member, or as an officer or member, of a union. As he alluded to in Esso, his Honour considered the removal of any such limitation with the passage of the FW Act as being indicative of a significant exercise in law reform.

28    While his Honour considered, by virtue of the operation of s 15AB(1) of the Acts Interpretation Act 1901 (Cth) (“AI Act”), that he was not entitled to have regard to the Explanatory Memorandum, he nevertheless did consider the submission made about the Explanatory Memorandum on its merits. It is convenient that I set out his Honour’s reasons for rejecting that submission in full:

[184]    Of the provisions on the memorandum on which counsel for the respondents relied, it is sufficient to refer to the following:

1338. The principal protections in Part 3-1 have been divided into protections relating to workplace rights (which can be broadly described as employment entitlements and the freedom to exercise and enforce those entitlements) and engaging in industrial activities (which encompasses the freedom to be or not be a member or officer of an industrial association and to participate in lawful activities, including those of an industrial association).

…

1400.     Division 4 provides protections in relation to a person's freedom of association and participation or non-participation in industrial activities. The protections in the Division revolve around the right to engage or not engage in certain industrial activities - namely, being a member or officer of an industrial association or engaging in activities of industrial associations. The Division prevents adverse action, coercion and misrepresentations in connection with these industrial activities. It also prevents inducements to be, or not be, a member of an industrial association.

1401. All of the protections relate to industrial associations. Industrial association is defined in clause 12. The definition covers unions and employer associations (whether or not registered or recognised under a law), and also covers employees and/or independent contractors who come together informally in the workplace for a purpose which includes protecting and promoting their interests in matters concerning their employment.

Illustrative example

Andrea works at the Bouncy Bluebell Childcare Centre. The manager, Bernadette, has been asking child care workers to put away heavy equipment at the end of each day while also watching the children. This requires the staff to leave the children without supervision. Andrea is concerned that this breaches the relevant government regulations. She suggests to a number of her co-workers that they meet after work to talk about whether they should take a collective approach on this issue, including reporting the issue or contacting the union. If the other employees agree to the meeting, they will be an industrial association within the meaning of clause 12.

Clause 346 - Protection

Clause 347 - Meaning of engages in industrial activity

Clause 348 - Coercion

Clause 349 - Misrepresentation

Clause 350 - Inducements - membership action

1402. The industrial activity provisions protect:

•    being or not being a member or officer of an industrial association;

•    participation or non-participation in other lawful industrial activity;

•    non-participation in unlawful industrial activity.

…

1414. Clauses 346, 348 and 349 likewise protect persons from adverse action, coercion and misrepresentation in relation to participation and non-participation in lawful industrial activities (the activities set out in paragraph 347(b)).

1415.     Subparagraphs 347(b)(i) to (v) provide that a person engages in industrial activity if she or he does or does not:

•    become involved in establishing an industrial association (subparagraph 347(b)(i));

•    organise or promote a lawful activity for, or on behalf of, an industrial association (subparagraph 347(b)(ii));

•    encourage or participate in a lawful activity organised or promoted by an industrial association (subparagraph 347(b)(iii));

•    comply with a lawful request made by, or requirement of, an industrial association (subparagraph 347(b)(iv)); or

•    represent or advance the views, claims or interests of an industrial association (subparagraph 347(b)(v)).

1416.     Subparagraphs 347(b)(i) to (v) can broadly be described as ‘participation protections’ and cover a broad range of lawful participation activities including:

•    carrying out duties or exercising rights as an officer of an industrial association; and

•    participating in union discussions at the workplace where a union has exercised a right of entry for this purpose.

The protections operate in a wide range of situations. For example:

•    an employee is protected from adverse action by their employer because they are involved in establishing an industrial association;

•    an independent contractor is protected from action taken by an industrial association with intent to coerce the contractor to comply with a direction given by the industrial association; and

•    a person is protected from a false or misleading representation about the obligation to pay a bargaining services fee on which the person could be expected to rely.

[185]    It must be said that the respondents derive some assistance from at least some of the things stated in the Explanatory Memorandum, most notably from the description of subparas (i)-(v) of s 347(b) as “participation protections”. However, their submission also encounters a number of problems.

[186]    The first problem, it needs hardly to be said, is that the submission flies in the face of the actual words of subpara (iv). That is not fatal to the submission, of course, since the respondents’ very point is that these wide words could not have been intended to be read literally. But, if one thing is clear about the drafting of the FW Act, it is that a great deal of attention was given to its every word. It is a detailed and prescriptive piece of legislation. Further, as mentioned above, it is clear that Div 4 of Pt 3-1 departed from previous legislation, and did so as a matter of conscious policy.

[187]    Secondly, there are indications in the memorandum that suggest that the kind of participation in the affairs of associations for which the respondents contend was no more than an instance, or example, of what would fall within the terms of the legislation. Here I have in mind para 1338, in which it is stated that industrial activities covers “the freedom … to participate in lawful activities, including those of an industrial association” (emphasis added); the second bullet point in para 1402, which is not limited in the way for which the respondents contend; the reference in para 1416 to the protections operating in a wide range of situations; and the fourth bullet point in para 1416 – the independent contractor example – which might have application in an internal participatory context but which, in its most obvious setting, would be unlikely to do so.

[188]    Thirdly, this is not a case in which the intention of the legislature, differing from the literal, grammatical reading of the provision in question, is self-evident. Save to say that Div 4 was limited to “protections to a person’s freedom of association and participation or non-participation in the activities of industrial associations”, and to submit that nothing in the facts of the present case engaged s 347(b)(iv) as properly construed, counsel was unable to articulate how this subparagraph should be limited. When I put to him the case of a shop steward complying with a request by another industrial association (ie not the one of which he or she was a member) to convene a meeting of all workers at lunch time (ie not involving any stoppage of work), counsel was forced to concede that that would not be industrial activity within the meaning of s 347(b)(iv) and, if the shop steward were dismissed for having done so, that would not amount to a contravention of s 346 on the part of the employer.

[189]    It is, I accept, possible that the drafter of s 347 understood that he or she was engaged in the task of setting out instances of conduct by way of participation in the affairs of industrial associations. It is possible that he or she did not realise what was the potential reach of para (b)(iv), if read and applied literally. But what the drafter had in mind, subjectively, is not the point: Certain Lloyd’s Underwriters v Cross (2012) 248 CLR 378, 390 [25]. The point is the intention of the legislature to be discerned in the words used, having regard to history, background and context, and to such materials as are properly available conformably with s 15AB of the AI Act.

[190]    At base, the respondents’ problem is that pointing to participation as the limiting context for s 347(b)(iv) does not take them the distance required. Read literally, that provision may indeed appear to travel beyond the kind of situations which the legislature had in mind, but the court does not know what it would have done about the problem had it been drawn to its attention.

29    At [193], Jessup J observed that in a number of single judge decisions of this Court, s 347(b)(iv) has been applied to situations not confined to matters of participation in the affairs of the requesting industrial association. Whilst accepting that in those proceedings the application of the provision to circumstances of that kind was not placed in contest, Jessup J considered that it would not be right for him as a single judge to depart from prior authority in circumstances where he regarded the strength of the respondents’ argument to be “respectable more so than compelling”.

30    Whilst Esso was the subject of an appeal to the Full Court (Esso Australia Pty Ltd v Australian Workers’ Union (2016) 245 FCR 39 (Siopis, Buchanan and Bromberg JJ) (“Esso Full Court”)) and a further appeal to the High Court (Esso Australia Pty Ltd v Australian Workers’ Union [2017] HCA 54) the proper construction of s 347(b)(iv) was not in contest. A request to enter into an enterprise agreement was, however, referred to as an example of a lawful request within the meaning of s 347(b)(iv) in a passing observation in the reasons of Kiefel CJ, Keane, Nettle and Edelman JJ at [57].

31    The facts of Esso and those of The Australian Paper Case are not relevantly distinguishable from those at hand. As the CFMEU accepted, I should only depart from the conclusion applied by Jessup J to s 347(b)(iv) if I am persuaded that his Honour was plainly wrong.

32    Whilst I am not persuaded that Jessup J was plainly wrong, for the reasons that follow I am persuaded that the better view is that the request or requirement of which s 347(b)(iv) speaks is a request or requirement made by an industrial association of another person to participate in the activities of the industrial association.

33    It is clear from the result in The Australia Paper Case that Jessup J must be taken to have rejected the construction of s 347(b)(iv) which I prefer. That however does not appear to be the construction of s 347(b)(iv) which was put to and expressly rejected by Jessup J. His Honour describes the contention that was put on behalf of the respondents in that case at [179] as “that s 347(b)(iv) was to be read down to be applicable only to requests and requirements which related to the participation of members of industrial associations in the affairs of those associations”.

34    In my respectful view, Jessup J was correct to reject participation or non-participation as a member of an industrial association in the affairs of that association as the limiting criterion for s 347(b)(iv). Insofar as Jessup J rejected the participation or non-participation of a person (whether a member or not) in the activities of the industrial association as the limiting criterion for s 347(b)(iv) I would respectfully disagree.

35    The task which confronted Jessup J and with which I am concerned is that of statutory construction. As French CJ, Hayne, Kiefel, Gageler and Keane JJ said in Thiess v Collector of Customs (2014) 250 CLR 664 at [22], that task involves the attribution of meaning to statutory text. It is a task which must begin with a consideration of the text itself but the meaning of the text must be construed by reference to context and the legislative purpose of the provision. As their Honours went on to say in Thiess at [23] (citations omitted):

Objective discernment of statutory purpose is integral to contextual construction. The requirement of s 15AA of the Acts Interpretation Act 1901 (Cth) that “the interpretation that would best achieve the purpose or object of [an] Act (whether or not that purpose or object is expressly stated …) is to be preferred to each other interpretation” is in that respect a particular statutory reflection of a general systemic principle. For :

“it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.”

36    Similar guidance emphasising the need to discern the statutory purpose of a provision was given by Gageler J in SZTAL v Minister for Immigration and Border Protection [2017] HCA 34 at [39] where his Honour said that “integral” to the making of constructional choices “is discernment of statutory purpose”. As his Honour said at [38], the constructional choice sometimes presented by statutory text read in context is, “between one meaning which can be characterised as the ordinary or grammatical meaning and another meaning which cannot be so characterised”. That observation reflects those made by McHugh, Gummow, Kirby and Hayne JJ in Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355 who at [78] said this (citations omitted):

… the duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning.

37    The point at which context should be considered and the scope of the context that may be considered was addressed by Brennan CJ, Dawson, Toohey and Gummow JJ said in CIC Insurance Limited v Bankstown Football Club Limited (1997) 187 CLR 384 at 408 (citations omitted):

[T]he modern approach to statutory interpretation (a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) uses 'context' in its widest sense to include such things as the existing state of the law and the mischief which, by legitimate means such as those just mentioned, one may discern the statute was intended to remedy.

38    The continuing importance of the “modern approach” and of context as an aid to discerning the meaning of the statutory text was reinforced by Kiefel CJ, Nettle and Gordon JJ at [14] of SZTAL where their Honours said this (citations omitted):

The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected.

39    The relevant context in which s 347(b)(iv) is found, includes the function served by s 347. The provision gives meaning to the phrase “industrial activity” used in s 346 and also s 348. Those sections are the operative provisions. The mechanism utilised in s 346 to provide the “protection” which its heading heralds is the prohibition on a person taking adverse action against another person “because” the other person:

(a)    is or is not, or was or was not, an officer or member of an industrial association; or

(b)    engages, or has at any time engaged or proposed to engage, in industrial activity within the meaning of paragraph 347(a) or (b); or

(c)    does not engage, or has at any time not engaged or proposed to not engage, in industrial activity within the meaning of paragraphs 347(c) to (g).

40    The word “because” in s 346 focuses attention on the reasons for the taking of that action. For the action to be prohibited, the reason (or more accurately a reason for the action: s 360) must be one or other of the prescribed reasons identified in paras (a), (b) or (c) of s 346. Each of the prescribed reasons identifies a status or activity, the holding or not holding of which or the engagement or non-engagement in which, is the right or attribute the subject of protection. The protected attributes in s 346(a) are status-based and concern the holding or not of an office or membership in an industrial association. The protected attributes the subject of s 346(b) and (c) are activity-based and specified by s 347. What is thereby prohibited is the taking of adverse action against a person by reason of that person’s engagement or non-engagement in one or more of the activities specified by s 347. For ease of reference I will refer to those activities specified by s 347 as the protected activities.

41    Section 348 has already been set out. Its purpose is also to protect the choice to engage in the protected activities enumerated by s 347. That is done by prohibiting the organising or taking of any action against another person with an intent to coerce that person, or a third person, to “engage in industrial activity”.

42    The structure of s 346 is mirrored by s 340 and also s 351. Each of those provisions also prohibit the taking of adverse action against a person and, in each case, that prohibition is limited to the taking of such action for a specified reason identified by the FW Act. In the case of s 340, the reason must be the holding (or not), the exercise (or not), or the proposed exercise (or not) of a “workplace right”, the meaning of which is given in s 341. In the case of s 351 which is headed “Discrimination”, the reason must be the attributes of race, colour, sex, etc as listed by that provision. Additionally, s 343 addresses coercion in a similar way to s 348 but is directed to protecting the “workplace rights” attributes specified by s 341.

43    What is apparent is that the FW Act is particular as to what attributes or activities are to be protected from adverse action or coercion. It is not the holding of or engagement in any attribute or activity that is protected but only those specified by the Act.

44    If s 347(b)(iv) is read literally, the attribute or activity the subject of protection is not specific but absurdly broad. An industrial association can make a lawful request about matters which have no material connection to workplace relations at all. It may be safely assumed that the FW Act does not intend to provide protection to attributes or activities which fall outside of its subject of workplace relations. It is necessary to identify the underlying subject within the realm of workplace relations at which s 347(b)(iv) is directed. This is a case where the objective discernment of statutory purpose is integral to contextual construction.

45    Returning to the structure of the FW Act in the recognition that the purpose of a statute “resides in its text and structure” (Lacey v Attorney General (Qld) (2011) 242 CLR 573 at [44] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ)), it is apparent that the protected attributes and activities have been grouped by subject matter. As the guide to Part 3–1 set out in s 334 states, Part 3–1 “provides general workplace protections” through the Divisions of that Part. The subject matters dealt with in the Divisions are then relevantly described as follows:

Division 3 [in which ss 340 and 343 are contained] protects workplace rights, and the exercise of those rights.

Division 4 [in which ss 346 and 347 are contained] protects freedom of association and involvement in lawful industrial activities.

Division 5 [in which s 351 is contained] provides other protections, including protection from discrimination.

46    Each of those protected subject matters is reflected in the objects of Part 3–1 specified in s 336(1) as follows:

336 Objects of this Part

(1)    The objects of this Part are as follows:

(a)    to protect workplace rights;

(b)    to protect freedom of association by ensuring that persons are:

(i)    free to become, or not become, members of industrial associations; and

(ii)    free to be represented, or not represented, by industrial associations; and

(iii)    free to participate, or not participate, in lawful industrial activities;

(c)    to provide protection from workplace discrimination;

…

47    Given the subject matter specified for Division 4 of Part 3-1 and the fact that s 347(b)(iv) is there found, unless there was good reason for a contrary view, it may be assumed that s 347(b)(iv) is concerned with the protection of “freedom of association and involvement in lawful industrial activities”, a composite expression to be read, consistently with the object specified by s 336(1)(b)(iii) as the protection of the freedom of a person to “participate or not participate in lawful industrial activities”.

48    The freedom of individuals to associate, has been recognised as “one of the most fundamental rights in a free society”: Toohey J at 91 of Kruger v Commonwealth (1997) 190 CLR 1, citing Re Public Service Employee Relations Act [1987] 1 SCR 313. It has been contemplated that a freedom of association may be implied by the Constitution as a corollary of the implied freedom of political communication: Wainohu v New South Wales (2011) 243 CLR 181 at [112] (Gummow, Hayne, Crennan and Bell JJ, with whom French CJ and Kiefel J agreed at [72]). Traditionally understood, the freedom entails not only a right of individuals to form groups, but also for those individuals to be represented by and to participate in the activities of those groups: Barclay v The Board of Bendigo Regional Institute of Technical and Further Education (2011) 191 FCR 212 at [14] (Gray and Bromberg JJ). In Canada, that has been said to be because “the purpose which [the Canadian constitutional freedom of association] is meant to advance is the collective action of individuals in pursuit of their common goals” (emphasis added): Dunmore v Ontario (Attorney General) [2001] 3 SCR 1016. It is this kind of purpose that ss 347(b)(iv) may be understood as being reflective of.

49    The text of s 347(b)(iv) states that its scope is confined to a “lawful” activity and participation or non-participation in that activity is the criterion for its engagement. The sub-paragraphs that surround it (sub-paragraphs (i)–(v)) bear that same character as being concerned with participation or non-participation in a “lawful” industrial activity of an industrial association. That those sub-paragraphs were intended to give expression to the object specified by s 336(1)(b)(iii) of protecting freedom of association by ensuring that persons are “free to participate, or not participate, in lawful industrial activities”, seems to be an irresistible inference. Nothing in the structure of the FW Act provides any support for the idea that the underlying subject matter of s 347(b)(iv) extends beyond freedom of association and in particular the freedom of persons to participate or not participate in the lawful activities of an industrial association.

50    That underlying subject of the provision, and thus its statutory purpose and the mischief that it was intended to remedy, is confirmed by the Explanatory Memorandum.

51    Before turning to the Explanatory Memorandum I should record why I consider it appropriate that resort may be made to it. As French CJ, Hayne, Crennan, Bell and Gageler JJ said in Federal Commissioner of Taxation v Consolidated Media Holdings Limited (2012) 250 CLR 503 at [39] “context includes legislative history and extrinsic materials”. However, as French CJ, Gummow, Hayne, Crennan and Kiefel JJ said in Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252 at [33] “it is erroneous to look at extrinsic materials before exhausting the application of the ordinary rules of statutory construction”. That observation and the terms of s 15AB of the AI Act suggest that the text of a provision and its immediate context as found in the statute itself must be examined first. Where the legal meaning of the text of a provision construed by reference to its immediate context is ascertainable, s 15AB(1)(a) of the AI Act enables that meaning to be confirmed by reference to extrinsic material. Conversely, where the text construed by reference to its immediate context reveals that its meaning is “ambiguous or obscure” (s 15AB(b)(i)) or would produce “manifestly absurd or unreasonable” results (s 15AB(b)(ii)) resort to extrinsic material is also permissible.

52    In this case, I take the view that the text of s 347(b)(iv), construed by reference to its immediate context, reveals that a limitation consistent with the purpose of protecting the freedom of association of a person to participate or not participate in the lawful industrial activity of an industrial association was intended to restrict the potential reach of the text of s 347(b)(iv) if read literally. Section 15AB(1)(a) enables that construction to be confirmed by reference to extrinsic material. Recent cases confirm that the use of an explanatory memorandum is permissible to confirm the purpose of a provision and the interpretation arrived at from text and immediate context: Maritime Union of Australia v Minister for Immigration and Border Protection (2016) 259 CLR 431 (French CJ, Bell, Gageler, Keane and Nettle JJ) and Comcare v Martin (2016) 258 CLR 467 at [46] (French CJ, Bell, Gageler, Keane and Nettle JJ).

53    There are observations made in the Explanatory Memorandum (the relevant content of which is set out at [28] above) which confirm three things. First, that s 347(b)(i)–(v) is a grouping of closely related provisions. Second, that the nature of the protections conferred is common and may be characterised as protection of participation or non-participation in the lawful activities of an industrial association. Third, that the purpose of those provisions is the protection of that aspect of freedom of association described by s 336(1)(b)(iii).

54    At [1400] of the Explanatory Memorandum, Div 4 is said to provide protection “in relation to a person’s freedom of association and participation or non-participation in industrial activities”. Those protections are then said to revolve around “the right to engage or not engage in certain industrial activities – namely, being a member or officer of an industrial association or engaging in activities of industrial associations” (emphasis added). At [1414]-[1417] each of sub-paragraphs (i)–(v) of s 347(b) are grouped together under the heading “Participation and non-participation in lawful industrial activities”. At [1416] this is said:

Sub-paragraphs 347(b)(i) to (v) can broadly be described as ‘participation protections’ and cover a broad range of lawful participation activities …

55    At [1335] of the Explanatory Memorandum it is stated that Part 3–1 of the FW Act “incorporates and streamlines the following WR Act protections”. One of the protections there identified is “freedom of association”. That is a reference to Part 16 of the WR Act, which was headed “Freedom of association”. The Explanatory Memorandum (at [1336]) then said this:

The consolidated protections in Part 3–1 are intended to rationalise, but not diminish, existing protections. In some cases, providing general more rationalised protections has expanded their scope.

56    With that expression of intent in mind and recognising that legislative history may provide a contextual aid to statutory construction, I turn to consider the legislative predecessor of s 347(b)(i)–(v).

57    Part 16 of the WR Act dealt with two aspects of freedom of association that are also addressed in Div 4 of the FW Act. First, the right to join and remain a member or officer of an industrial association, as well as the right not to do so, was the subject of protection from action of the kind that the FW Act now calls adverse action. Separate provisions addressed employer conduct (s 792) and conduct by an industrial association (ss 796–797). Coercion in relation to a person joining and remaining a member or officer of an industrial association or not doing so was also prohibited (s 789).

58    The second aspect of freedom of association dealt with by Part 16 of the WR Act is more of relevance to this discussion. Although the terms of ss 347(b)(i)–(v) are broader in their operation, s 793(1)(o) may be regarded as their predecessor provision. Section 793 of that Act set out the “prohibited reasons” for the taking by an employer of action in contravention of s 792. The interaction between those two provisions was similar to the interaction between s 346(b) and ss 347(a) and (b). Paragraph (o) of s 793(1) of the WR Act was in the following terms:

(1)    Conduct referred to in subsection 792(1) or (5) is for a prohibited reason if it is carried out because the employee, independent contractor or other person concerned:

…

(o)    as an officer or member of an industrial association, has done, or proposes to do, an act or thing for the purpose of furthering or protecting the industrial interests of the industrial association, being an act or thing that is:

(i)    lawful; and

(ii)    within the limits of an authority expressly conferred on the employee, independent contractor or other person by the industrial association under its rules; …

59    The similarity of subject matter with that of ss 347(b)(i)-(v) is apparent. However, the participation protections conferred by s 793(1)(o) of the WR Act were limited in three relevant respects. First, they only protected a right to participate and not a right not to participate in the activities of an industrial association. Second, the protections only related to adverse conduct of an employer in relation to its employees or a person in relation to an independent contractor. Third, the protection was only conferred upon employees and independent contractors who were officers or members of an industrial association. Participation by an employer in the affairs of an employer industrial association was not protected.

60    It is also important to observe that for the purposes of Part 16 of the WR Act an “industrial association” had to be either an association of employees, including independent contractors, or an association of employers that was registered or recognised as such under an industrial law, or an association of employees, including independent contractors, or an association of employers that had as its principal purpose the protection and promotion of its members in matters concerning employment or independent contractors: s 779(1).

61    In contrast, the definition of “industrial association” was extended by the FW Act to include associations formed “informally”. By s 12, the term “industrial association” is given the following meaning:

(a)    an association of employees or independent contractors, or both, or an association of employers, that is registered or recognised as such an association (however described) under a workplace law; or

(b)    an association of employees, or independent contractors, or both (whether formed formally or informally), a purpose of which is the protection and promotion of their interests in matters concerning their employment, or their interests as independent contractors (as the case may be); or

(c)    an association of employers a principal purpose of which is the protection and promotion of their interests in matters concerning employment and/or independent contractors;

and includes:

(d)    a branch of such an association; and

(e)    an organisation; and

(f)    a branch of an organisation.

62    As [39] of the Explanatory Memorandum explains:

39.    Paragraph (b) of the definition provides that an industrial association means an association of employees and/or independent contractors (whether formed formally or informally), a purpose of which is the protection and promotion of their interests in matters concerning their employment, or interests as independent contractors, as the case requires. This element of the definition differs from the pre-reform definition in subsection 779(1) of the WR Act in two respects:

•    it now includes informal associations of employees and/or independent contractors; and

•    the requisite purpose of protecting and promoting their interests does not need to be a principal purpose of the association.

63    Extending the coverage of protection to informal collectives of individuals may, in large part, explain the change made from the criterion focused upon the activities of a member or officer of a union to the more general activity-based criteria found in ss 347(b)(i)-(v). Persons involved in associations formed informally are unlikely to have formal status as “members” or “officers”. It is evident that much more than a mere stylistic re-write was undertaken. The overall effect of what the Explanatory Memorandum called a “consolidation” or “rationalisation” is, as the Memorandum itself states, an expansion of the scope of the protections (at [1336]).

64    As a consequence, protections formerly limited in their application to the conduct of members or officers of unions acting as such, have now been expanded, not only to the conduct of participants in an informal employee association, but also to the conduct of participants in the activities of employer associations. Whereas the former participation protections provided by the WR Act were confined to action taken as an incident of the membership of the association in which the person victimised held membership, s 347 is not so limited. The common, essential and thus limitational element in each of ss 347(b)(i)–(v) is participation or non-participation in the activity of an industrial association. Whilst that essential element may include an act done (or not done) as an incident of formal membership of an association, it is not limited to the existence of that circumstance. For that reason I respectfully agree with the rejection by Jessup J in The Australian Paper Case of the contention that s 347(b)(iv) is to be read down to be applicable only to requests and requirements which related to the participation of members of industrial associations in the affairs of those associations.

65    However, it does not follow from the rejection of that construction of s 347(b)(iv) that the refusal by an employer of an industrial claim made by a union engages the criterion specified by ss 347(b)(iv) or (v). Without more, the rejection by an employer of an industrial claim of a union lacks any nexus with freedom of association. It involves no participation in or refusal to participate in a lawful activity of the industrial association. In those circumstances, the employer is not a participant or non-participant in an associative activity.

66    The context, the consequences of a literal construction, and the evident purpose of s 347(b)(iv) require the reference made to “a lawful request … or requirement” to be read as referring to a lawful request or requirement to associate in or with the industrial association. So construed, s 347(b)(iv) sits conformably with paragraphs (i), (ii), (iii) and (v) of s 347(b) as one of several categories of participatory activities taken or refused to be taken in common cause with an industrial association which have been designated as protected attributes to “protect freedom of association by ensuring that persons are … free to participate, or not participate, in lawful industrial activities”: s 336(1)(b)(iii).

67    There is one other matter that, it seems to me, tells against the proposition that the reach of the protected activities specified by s 347 extends to a refusal by an employer to adhere to a claim made by a union for improved terms and conditions of employment.

68    Section 343 is in the following terms:

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.

Note:    This subsection is a civil remedy provision (see Part 4-1).

(2)    Subsection (1) does not apply to protected industrial action.

69    Its terms are similar to those of s 348 which also deals with coercive conduct. As earlier indicated, s 343 is directed to protecting attributes or activities described as “workplace rights” while s 348 is directed at the protected activities described as “industrial activity”. There is an important distinction between the two provisions. Section 343 includes an express qualification that the provision does not apply to “protected industrial action” (s 343(2)). Section 348 bears no such qualification.

70    The FW Act has carefully crafted a scheme for the taking of industrial action in furtherance of enterprise bargaining (see Part 3-3). The capacity for strike and lockout action to be taken in furtherance of the making of an enterprise agreement is fundamental to the scheme for collective bargaining for which the FW Act provides. Immunity from suit is provided by s 415 to industrial action taken in accordance with the scheme of the FW Act (see in particular ss 413 and 414). That action is called “protected industrial action”.

71    It must have been appreciated that the attributes or activities described as “workplace rights” in s 341 could include protected attributes or activities which concern the making and rejection of industrial claims. That appreciation is correct. For example, a proposal not to make an enterprise agreement or, in other words, a refusal of a claim or demand that an enterprise agreement be made, is a protected activity. That is to say, that in the absence of anything more, a person would be prohibited from taking adverse or coercive action against another person for refusing a request or claim to make an enterprise agreement (see s 340(1)(a)(iii) and s 343(1)). It seems to me that s 343(2) has been included to confirm the supremacy of protected industrial action. Parliament’s evident intent that the right to take protected industrial action has primacy over the protection that would otherwise have been provided for in relation to the refusal of a claim for an enterprise agreement explains the inclusion of s 343(2). That inclusion poses a question as to why the same qualification was not made in relation to s 348.

72    One possible response may be that it is unnecessary for s 348 to include any provision stating that the prohibition in that section does not apply to protected industrial action on the basis that such action could never be coercive. That is because, as I will discuss in more detail below, an element of an intent to coerce is that the conduct was unlawful, illegitimate or unconscionable in a way that protected industrial action could never be. However, that response does not explain the existence of s 343(2). If the draftsperson had that reason in mind, then s 343(2) should have been considered similarly unnecessary.

73    The evident policy of the FW Act does not suggest a basis for the distinction. What, it seems to me, explains the distinction is that there was no appreciation of any potential for conflation of the protected activities specified by s 347 and the taking of protected industrial action in furtherance of an industrial claim. To put the point squarely and by reference to s 347(b)(iv), there must have been no appreciation that a failure to accede to a lawful request or requirement made by an industrial association to make an enterprise agreement could engage s 348. In my view, that was not appreciated because it was not intended that such a failure would engage s 347(b)(iv).

Was s 347(b)(v) engaged?

74    Turning to the facts of this case, I will first address the Commissioner’s reliance on s 347(b)(v). The proper construction of that provision is not part of the ratio of either Esso or The Australian Paper Case. The Commissioner’s case is that by not making any change to site amenities in the face of the CFMEU’s demand that change be made, BPM’s inaction is capable of being characterised as not representing or advancing the views, claims or interests of the CFMEU.

75    The facts do not establish that BMP was asked to represent or advance the views, claims or interests of the CFMEU. Nor do the facts establish that BPM did not represent or advance such views, claims or interests. All that the facts establish is that the CFMEU raised an issue with BPM about the installation of additional amenities on the site. I accept that the raising of that issue in the circumstances in which it was raised included, at least impliedly, the communication of a claim that the additional amenities be provided by BPM. I also accept that the evidence does establish that for a short period, and as a result of its inaction, BMP did not accede to or impliedly refused the claim. But there is no evidence of any refusal to “represent or advance the views, claims or interests” of the CFMEU.

76    There is an obvious difference between declining or refusing to advance or represent some other person’s claim and declining a claim made by that person. The latter entails merely a refusal to accept the claim whilst the former entails a refusal to positively support it. To refuse a claim is an act of a different character to refusing to join in with its proponent and advocate for the claim. So too is the act of acceding to a claim an act of a different character from that of representing or advancing a claim. Similarly, to reject the views or interests of another person is an act of a different character to refusing to represent or advance those views or interests. The natural and ordinary meaning of the phrase “represent or advance” as used in s 347(b)(v) does not extend to a mere refusal or rejection of a claim made by an industrial association.

77    The Commissioner did not contend that the legal meaning of the words “represent or advance” is, when read in context, different to the grammatical meaning of that phrase. I have already considered that context including the evident purpose of the provision to protect the freedom of persons to associate (or not) and participate in the lawful activities of an industrial association. In my view, the context clearly confirms that the words “represent or advance” were intended to have their natural and ordinary meaning and that s 347(b)(v) has no application to a circumstance where a person refuses a claim made by an industrial association for the improvement of terms and conditions of employment.

78    Accordingly, the facts relied upon by the Commissioner do not engage s 347(b)(v) with the consequence that no contravention of ss 346(b) and 348 is established in reliance on that provision.

Was s 347(b)(iv) engaged?

79    I turn then to apply the facts to the Commissioner’s case which relies upon s 347(b)(iv).

80    In relation to s 347(b)(iv) the CFMEU contended that Long and Benstead did not say anything that could be understood as requesting or requiring BPM to do anything. It contended that they merely identified issues or problems with the site by complaining about amenities saying that they were too small and that there was no dedicated female toilet. What was said to be necessary to amount to a request, demand or requirement was an indication of what should have been provided, together with a claim comprising words to the effect of “you must provide a female toilet”, or “you must provide a bigger shed”.

81    It was admitted by the CFMEU, and confirmed in Skurrie’s evidence, that Benstead said to Skurrie words to the effect that there were a number of problems at the site, that the problems included the size of the sheds and the lack of a female toilet and that Benstead or the CFMEU wanted to have a meeting about those problems. The absence of express words demanding anything in particular is not to deny that the interaction between Benstead and Skurrie was objectively to be understood as being a request for problems identified by Benstead to be rectified. That the interchange was to be objectively understood in that way follows from the fact that the request for improved conditions was made by an officer of a union whose task would be objectively understood as that of advancing the industrial interests of the union’s members. In those circumstances, the making of the request would be understood as expressing more than a mere opinion and including a request that the problems be rectified. In other words, the identification of the problems carried with it an implied request that the problems be remedied. For those reasons, I reject the CFMEU’s contention.

82    I have already recorded the construction of s 347(b)(iv) which I prefer and given my reasons for that conclusion. As earlier stated, given that that construction was at least impliedly rejected by Jessup J in both Esso and The Australian Paper Case, it is necessary for the CFMEU to persuade me that the construction there adopted is plainly wrong.

83    In BHP Billiton Iron Ore v National Competition Council (2007) 162 FCR 234, Greenwood J (with whom Sundberg J agreed) explained that the circumstances in which it may be appropriate to depart from an earlier authority should be approached with real caution. At [83]–[86], his Honour said (emphasis in original):

[83]    The circumstances in which a judge in the exercise of the Court’s original jurisdiction might find a decision of a single judge of the Court to be ‘plainly wrong’ should be approached with real and deliberative caution and would generally involve that class of case where for one reason or another there is transparent error such as the consideration of an incorrect statutory instrument in the resolution of the controversy; consideration of a provision of a statute in a form not enacted at the relevant date of the events or a failure to consider a provision of an Act relevant to the disposition of the cause, thus causing the analysis to fall into error; a failure to apply having regard to the issues raised by the controversy, a binding decision of a Full Court of this Court or the High Court; a failure to apply a decision of a Full Court of this Court, an intermediate Court of Appeal of another jurisdiction or an authority of the High Court expressing a clear persuasive emphasis of opinion in favour of a particular conclusion (particularly concerning legislation of the Commonwealth Parliament); or some other circumstance that has caused a dispositive adjudication of the controversy to miscarry.

[84]    That minds might differ on a question is not a foundation for a conclusion that a decision supported by exposed reasons for judgment after full argument, is plainly wrong.

[85]    The difficulty however lies in preserving that degree of important flexibility necessary to enable a judge to do justice between the parties to a controversy inherent in a dispositive adjudication of that controversy when a judge is persuaded that an earlier authority is wrong (apart from illustrations of the kind above) balanced with the importance of consistency and certainty in the administration of the law. The question is always a matter of careful judgment.

[86]    The circumstances which might properly lead to a departure from an earlier authority will necessarily vary according to the content of the case and the issues and therefore no prescriptive rules ought to be formulated. However, the point of equilibrium in that balance might be reached by recognising the required emphasis necessary in concluding that an earlier authority is ‘plainly wrong’ or ‘clearly wrong’. In cases where a party advised and represented by experienced senior counsel properly discharging the duty owed to the Court urges upon the Court the merits of the reasoning of the authority in the resolution of the immediate case, it would be difficult to conclude that the authority is ‘plainly wrong’ notwithstanding that a judge might reach an entirely different view of the proper construction of the provision against the background of the facts found and thus conclude that the early authority is wrongly decided. There is a distinction between concluding a decision is wrongly decided and a conclusion that an earlier authority is ‘plainly wrong’ and thus ought not to be applied and followed.

Those observations were recently endorsed at [43] of BHP Billiton Nickel West Pty Ltd v KN (Deceased) (Tjiwarl and Tjiwarl #2) [2018] FCAFC 8 (North, Dowsett and Jagot JJ).

84    Further, as French J observed in Nezovic v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 133 FCR 190 at [52]:

Where questions of law and in particular statutory construction are concerned, the view that a judge who has taken one view of the law or a statute is ‘clearly wrong’ is not likely to be adopted having regard to the choices that so often confront the courts particularly in the area of statutory construction.

His Honour’s remarks were endorsed by Greenwood J in BHP Iron Ore (at [89]).

85    The relevant question here is a question of statutory construction and, particularly in light of the observations made by French J in Nezovic, I am not persuaded that the construction of s 347(b)(iv) applied in Esso and The Australia Paper Case is plainly wrong. In seems to me that the resolution of the question here raised is best left to a Full Court.

86    I therefore proceed on the basis that the Commissioner has established that by not making any change to site amenities in the face of the CFMEU’s demand that changes be made, BPM’s inaction constituted a failure to comply with a lawful request made by, or requirement of, an industrial association within the meaning of s 347(b)(iv), and that as a consequence BPM engaged in “industrial activity” as referred to in s 346(b) and s 348 of the FW Act.

Did Long and Benstead contravene s 346(b)?

87    As the Commissioner has established the existence of the engagement by BPM in the relevant industrial activity as a matter of objective fact and as the Commissioner has alleged that the adverse action in question was taken by Long and Benstead including for the reasons that BPM engaged in the relevant industrial activity, the Commissioner is entitled to take the benefit of the statutory presumption made by s 361(1) of the FW Act: Tattsbet Pty Ltd v Morrow (2015) 233 FCR 46 at [119] (Jessup J, with whom Allsop CJ and White J agreed). That provision relevantly provides that where it is alleged that a person took action for a particular reason or with a particular intent, and taking the action for that reason or with that intent would constitute a contravention of Part 3-1, it is presumed that the action was taken for that reason or with that intent unless the person proves otherwise. The burden of proof was therefore on Long and Benstead to establish the absence of the alleged intent. Neither Long nor Benstead gave any evidence of their intent and did not discharge the burden of proof to establish the absence of that intent.

88    To succeed on its claim of a contravention of s 346(b) the Commissioner needs also to establish that “adverse action was taken against another person”. Adverse action is defined in s 342(1) of the FW Act. Relevantly, Item 7 of s 342(1) provides for the circumstances in which an officer of an industrial association takes adverse action against a person. It is common ground that Long and Benstead were officers of the CFMEU and that the CFMEU is an industrial association.

89    There was a dispute raised in the proceeding as to whether the submissions made by the Commissioner and the evidence which the Commissioner called (subject to objection by the CFMEU) travelled beyond the Commissioner’s pleaded case. That dispute extended to issues concerned with the pleaded allegation that, within the meaning of Item 7(c), each of Long and Benstead took action against BPM that had the effect of directly or indirectly prejudicing BPM in relation to its contract for services with SL Excavations. There is force in the CFMEU’s complaint that the submissions made and evidence called subject to objection travelled beyond the pleaded case and that the Commissioner ought not be permitted to do that.

90    However, the Commissioner also relied on a second basis to establish that adverse action was taken against BPM. The Commissioner’s pleaded case also included an allegation that each of Long and Benstead organised industrial action against BPM and that the organising of that action was adverse action within the meaning of Item 7(a) of s 342(1). In relation to that allegation there are no evidentiary issues to resolve and, for the following reasons the Commissioner succeeds.

91    It is not in contest that BPM was the head contractor engaged to perform building work at the site. BPM entered into contracts for services with SL Excavations to carry out building work at the site and SL Excavations in turn engaged its own employees to work at the site as well as independent contractors including Wagstaff. Nor is it contentious that at all material times employees of SL Excavations and Wagstaff were engaged on the site to perform work.

92    It is admitted that BPM had scheduled construction work to be performed by SL Excavations and Wagstaff on the site on 22 April 2015. It is also admitted that each of the employees of SL Excavations and Wagstaff was required by their respective employer to perform the work scheduled at the site for 22 April 2015.

93    The events on 22 April 2015 have already been described. Long and Benstead entered the site on that day and held discussions with workers. Following the meeting with workers Long told Finney that he was “sending the boys home because the amenities aren’t up to standard”. Workers employed by Wagstaff walked off the site between about 1 and 1.30pm in circumstances where their usual finishing time was 5.30pm.

94    I am satisfied that in circumstances where employees of Wagstaff were required by Wagstaff to perform the work scheduled for 22 April 2015 but failed to perform any work after about 1.30pm on that day, employees of Wagstaff engaged in industrial action. The meaning of industrial action is given by s 19 of the FW Act and includes a limitation or restriction on the performance of work by an employee or a failure or refusal by employees to attend for work or a refusal to perform any work.

95    I am satisfied that that industrial action was organised by Long and Benstead. I would infer from the fact that the workers walked off the site shortly after the meeting with Long and Benstead and from the fact that Long told Finney that “he was sending the boys home”, that Long and Benstead organised the taking of the industrial action. The term “organise” has been said to encompass “acts of positive and intentional conduct bringing about or maintaining, or contributing in a material way to the bringing about or maintenance, of industrial action” (Australian Building and Construction Commissioner v Huddy [2017] FCA 739 at [147] (White J); Fair Work Ombudsman v Maritime Union of Australia [2017] FCA 1363 at [80] (Jagot J)) and may be wide enough to also include “marshalling” or “rallying” (Director of the Fair Work Building Industry Inspectorate v Robinson (2016) 241 FCR 338 at [53] (Charlesworth J)).

96    I am also satisfied that the industrial action was organised “against” BPM” (Item 7(a) of s 342(1)). The Commissioner has established that the conduct of Long and Benstead was motivated by the fact that BPM did not accede to the request or demand made by Long and Benstead for BPM to provide additional site amenities. It follows that the organisation of the industrial action was directed at and therefore taken against BPM.

97    Each of the elements of a contravention of s 346(b) have been established. I am satisfied that each of Long and Benstead took adverse action against BPM on 22 April 2015 in contravention of s 346(b) of the FW Act.

Did Long and Benstead contravene s 348?

98    It is necessary to then return to the alleged contraventions of s 348 by each of Long and Benstead.

99    In Esso Full Court at [174], Buchanan J (with whom Siopis J agreed) observed, by reference to a survey of the authorities, that the term “intent to coerce” has been held to require the satisfaction of two elements: negation of choice; and the use of unlawful, or illegitimate or unconscionable means (see also Victoria v Construction, Forestry, Mining and Energy Union (2013) 218 FCR 172 at [70]–[72] (Buchanan and Griffiths JJ)).

100    At [194] of Esso Australia, Buchanan J said this (emphasis added):

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 have referred earlier. In that common law context, the notion of purpose, or intent, applies to the first element but not the second.

101    In Fair Work Ombudsman v Australian Workers Union [2017] FCA 528, with reference to that observation, at [66] I said this:

Those observations, consistently with the approach I took in McCorkell, demonstrate that in relation to each of ss 343 and 348, the s 361 presumption will have application to the first element of “intent to coerce”, the intention to negate choice. But the s 361 presumption will not have application to the second element, the use of unlawful, illegitimate, or unconscionable means, which, as Buchanan J said in Esso, involves an objective test.

102    The Commissioner has established the existence of the engagement by BPM in the relevant “industrial activity” as a matter of objective fact and has alleged that the action taken was taken with intent to coerce BPM to engage in that industrial activity. As the presumption made by s 361(1) has not been rebutted, the Commissioner is entitled to take the benefit of the statutory presumption in relation to the first element of “intent to coerce”, being the intention to negate choice. The Commissioner has established that element.

103    The Commissioner bears the onus of establishing the second element, the use of unlawful, illegitimate or unconscionable means. That aspect of the Commissioner’s case was also challenged on the basis that, by his submissions and by the evidence called subject to objection by the CFMEU, the Commissioner sought to travel beyond his pleaded case.

104    It is necessary to observe that proceedings in pursuit of the imposition of civil penalties are penal in nature. Those accused of a contravention should be made aware, with some precision, of the case they must meet. As the Full Court (Logan, Bromberg and Katzmann JJ) observed in Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2015) 230 FCR 298 at [63]–[65] (emphasis added):

[63]    Even so, a civil suit for the recovery of a pecuniary penalty is a proceeding of a penal nature: Naismith v McGovern (1953) 90 CLR 336 at 341. In this class of case, it is especially important that those accused of a contravention know with some precision the case to be made against them. Procedural fairness demands no less. Furthermore, although the civil standard of proof applies, where (as here) the resolution of an issue exposes a respondent to a penalty, satisfaction on the balance of probabilities is not achieved by “inexact proofs, indefinite testimony, or indirect inferences”: Briginshaw v Briginshaw (1938) 60 CLR 336 at 362. The Evidence Act 1995 (Cth) now requires that the court take into account the nature of the cause of action in deciding whether it is satisfied that a party’s case has been proved on the balance of probabilities: Evidence Act 1995 (Cth), s 140(2)(a) (“Evidence Act”).

[64]    Litigation is not a free for all. The overarching purpose of the civil practice and procedure provisions that apply in this Court is to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible (Federal Court of Australia Act 1976 (Cth) (“FCA Act”), s 37M). It would not be just to decide a case on a different basis than the way it was conducted. Nor would it be just to permit an applicant to change the nature of its case after the evidence has closed and its weaknesses pointed out, at least not without a formal application and the grant of leave, on terms if necessary.

[65]    The long and the short of it, then, is that, in a civil proceeding of a penal nature, a statement of claim must allege a contravention known to law and with a sufficient statement of material facts to alert a respondent to the case to be met. Nevertheless, where an applicant’s pleading is ambiguous but a respondent has nonetheless meaningfully engaged with it in its defence, that engagement and the manner in which an applicant’s case is consequentially opened and the trial conducted and defended can and ought to be considered in deciding whether a respondent has suffered any procedural unfairness. That is so even if there has been no formal application to amend the pleading. The obligations imposed on the Court and the parties by Pt VB of the FCA Act do not lead to any different conclusion.

105    The Commissioner’s pleading in support of the claimed contravention of s 348 was as follows:

27.    Further and/or in the alternative, by reason of the matters in paragraphs 8, 8A. 8B and 11 to 21 above, each of Long and Benstead engaged in the Unlawful Conduct with the intent to coerce BPM Built to “engage in industrial activity”, namely to comply with and/or represent or advance, the CFMEU Amenities Demand.

Particulars

The Applicant relies upon the meaning of engaging in industrial activity in s 347(b)(iv) and (v) of the FW Act and refers to paragraph 9 above.

The Applicant notes that it relies upon the operation of ss 360 and 361 of the FW Act in relation to the intention and reason for action alleged above herein.

28.    By reason of the matters in paragraphs 14 to 19A and 27 above, Long and Benstead each organized and took action against BPM Built with intent to coerce BPM Built to engage in industrial activity in contravention of s 348 of the FW Act.

106    Each of the allegations there set out were denied. The pleading made no express reference to how the conduct in question was unlawful, illegitimate or unconscionable. Under objection, the Commissioner called a range of evidence ultimately relied upon in support of various contentions made that the conduct of Benstead and Long was unlawful, illegitimate or unconscionable. With one possible exception to which I will shortly refer, all of that evidence travelled beyond the pleading with the consequence that the CFMEU was not put on notice as to the case it had to meet on the question of whether the conduct of Long and Benstead was unlawful, illegitimate or unconscionable. In the circumstances, I would uphold the CFMEU’s objection to the reception of that evidence.

107    However, in my view there was one aspect of the way in which the Commissioner sought to characterise the conduct of Long and Benstead as unlawful which the CFMEU should be regarded as having had sufficient notice of. In relation to both his s 346(b) case, and his s 348 case, the Commissioner relied on the same conduct. It is evident from the pleading that that conduct was alleged by the Commissioner to be unlawful as a contravention of s 346(b). The CFMEU had notice of that. Moreover, the CFMEU had notice of all of the material facts relied upon by the Commissioner to establish that the conduct was unlawful as well as an opportunity to contest those facts and the allegation of unlawfulness. In those circumstances, there is no prejudice to the CFMEU in permitting the Commissioner to rely on the contravention of s 346(b) as the basis for demonstrating unlawfulness in establishing an “intent to coerce”.

108    I am satisfied therefore that each of the elements of s 348 have been established and that on 22 April 2015 by organising action against BPM with an intent to coerce BPM to engage in “industrial activity” each of Long and Benstead contravened s 348 of the FW Act.

Is the CFMEU liable?

109    As to the liability of the CFMEU, the Commissioner contended that if the Court found that Benstead and Long contravened ss 346 and 348 of the FW Act, the Court should also find that the CFMEU is liable in relation to those contraventions by the operation of ss 793 and 363 of the FW Act.

110    For the purposes of attributing liability to the CFMEU for the conduct of Benstead and Long, it is sufficient for the Commissioner to rely on the operation of s 793 of the FW Act. That provision is in the following terms:

793    Liability of bodies corporate

Conduct of a body corporate

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

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

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

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

State of mind of a body corporate

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

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

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

Meaning of state of mind

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

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

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

Disapplication of Part 2.5 of the Criminal Code

(4)    Part 2.5 of Chapter 2 of the Criminal Code does not apply to an offence against this Act.

Note:    Part 2.5 of the Criminal Code deals with corporate criminal responsibility.

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

111    As Charlesworth J observed in Robinson at [48]:

Section 793 does not, of itself, fix upon a body corporate liability for contraventions found to have been committed by its officers, employees or agents. Rather, it attributes to the body corporate the conduct and state of mind of its officers, employees and agents in prescribed circumstances. The question of whether the body corporate has contravened the FW Act (and, if so, on how many occasions) must be answered by assessing the facts, namely the conduct and state of mind attributed to the body corporate, against the elements of the contravention said to have been committed by it.

112    It is not in contest that at all material times each of Long and Benstead was an officer or employee of the CFMEU and acting within the scope of his actual or apparent authority as such an officer or employee. Accordingly, and by operation of s 793(1), the conduct of Long and Benstead which I have found to have contravened ss 346 and 348 is to be taken to have been engaged in also by the CFMEU. Additionally, and by reason of s 793(2), the state of mind of Long and Benstead associated with the conduct in contravention of ss 346 and 348 is to be attributed to the CFMEU. When those facts are assessed against the elements of the contraventions of ss 346 and 348 alleged against the CFMEU, the allegation that the CFMEU contravened those provisions is made out.

113    Although I have held that each of Long and Benstead contravened ss 346 and 348, it does not follow that the CFMEU has contravened each of those provisions twice. The conduct of the CFMEU in contravention of each of those provisions is the sum of the conduct of Long and Benstead that contravened each provision: Robinson at [51]–[53] (Charlesworth J); Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2017] FCA 1269 at [21]–[23] (Reeves J).

114    For those reasons, I hold that on 22 April 2015 the CFMEU committed a single contravention of each of ss 346 and 348.

Conclusion

115    I have concluded that on 22 April 2015 each of Long, Benstead and the CFMEU contravened each of ss 346(b) and 348. In accordance with the order made on 28 April 2016, the question of what relief should follow will be the subject of a further hearing. To facilitate that course I will make an order listing the matter for a case management hearing.

Associate:        

Dated:    13 February 2018