FEDERAL COURT OF AUSTRALIA

Australian Building and Construction Commissioner v Ravbar [2018] FCA 1196

ORDERS

THE COURT ORDERS THAT:

1.    The parties are to prepare an appropriate form of orders to give effect to these reasons.

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

REASONS FOR JUDGMENT

REEVES J:

1    In this proceeding, the Australian Building and Construction Commissioner claimed that, from about early to mid 2012 to about October 2012, various officials and organisers of the Construction, Forestry, Mining and Energy Union (CFMEU) took action against a company called Universal Cranes Pty Ltd to force it to enter into an enterprise agreement on terms which reflected the model agreement adopted by the CFMEU. In doing so, the Commissioner alleged that those persons, the respondents to this proceeding, contravened various provisions of the Fair Work Act 2009 (Cth) (the FW Act). In particular, the Commissioner relied upon four incidents that he alleged occurred between approximately July and October 2012 at two large civil construction projects in Brisbane on which Universal Cranes was engaged as a subcontractor: the Legacy Way project and the Port Connect project. In addition to one or more of the respondents, all of those incidents involved a Mr Paul Cradden who was, at the time, employed by the CFMEU as an organiser.

2    Ultimately, I have concluded that three of those incidents did not involve any contraventions of the FW Act. However, I have concluded that the fourth, and final one, did. My reasons for so concluding are set out hereunder. As appears in the index below, the structure I have followed in these reasons is, first, to describe the principal participants involved and the factual background to the four incidents mentioned above. Next, I have used the pleadings to identify the main issues that arise for determination and then set out the provisions of the FW Act relating to those issues and the principles bearing on those provisions. And finally, I have summarised and then analysed the evidence relating to the four incidents and the contextual circumstances surrounding them to explain why I consider the contraventions alleged either did not occur, or did occur, as the case may be.

THE PRINCIPAL PARTICIPANTS

3    Universal Cranes is a wholly owned subsidiary of the Smithbridge Group Pty Ltd. In 2012, it carried on business as a mobile crane hire company providing “wet” and “dry” hire cranes to the construction industry in Queensland. A “wet” hire refers to the hiring of a crane, along with an operator, fuel, and maintenance and a “dry” hire refers to the hiring of cranes without such accompaniments. At that time, it employed approximately 100 to 120 workers, most of whom were eligible to be members of the CFMEU. Mr Albert Smith was the sole director of the company and Mr Joachim Schalck was its manager.

4    The four individual respondents to this proceeding, Mr Ravbar, Mr Close, Mr Toyer, and Mr Sutherland, were, in 2012, officials of, or organisers employed by, the CFMEU. Mr Ravbar held the position of the Queensland and Northern Territory Divisional Branch Secretary. Mr Close was an Assistant Divisional Branch Secretary for Queensland and the Northern Territory, and Mr Toyer and Mr Sutherland were both employed by the CFMEU as organisers.

THE FOUR INCIDENTS

5    Two of the four incidents mentioned above allegedly occurred at the Legacy Way project. That project involved the construction of a road tunnel from Victoria Park near the Brisbane CBD to the suburb of Toowong. The principal contractor for the project was an entity called the Transcity Joint Venture. Mr Jeffrey Young was the General Superintendent for the project and Mr Michael Atkinson was the General Foreman Structures. Mr Atkinson reported to Mr Young.

6    The two Legacy Way incidents allegedly occurred in July 2012. The first incident allegedly involved Mr Cradden, the CFMEU organiser mentioned above, and Mr Atkinson. The second incident allegedly involved Mr Cradden, Mr Toyer, Mr Atkinson and Mr Young. Both incidents involved Universal Cranes’ mobile cranes which were used by subcontractors on the Legacy Way project site.

7    The other two incidents allegedly occurred at the Port Connect project. That project involved the upgrading of the existing motorway from the Gateway Arterial Road through to the Port of Brisbane. The BMD Seymour Whyte Joint Venture was the principal contractor for the project and Mr Jason Zoller was the Construction Manager.

8    The first of the two Port Connect incidents involved Mr Cradden, Mr Toyer and Mr Zoller. For reasons that will be explained later, that incident will be referred to in these reasons as “the second Port Connect incident”. The second of the two Port Connect incidents (for similar reasons described in these reasons as “the third Port Connect incident”) involved Mr Cradden, Mr Sutherland and Mr Zoller.

9    The second Port Connect incident occurred in July 2012 and the third Port Connect incident occurred in October 2012.

THE SURROUNDING EVENTS

10    The relationship between Universal Cranes (then called Universal Contracting) and the CFMEU began in about 1994 when that company first entered into an enterprise agreement with the CFMEU. I interpose to note that I have generally used the FW Act expression “enterprise agreement” throughout these reasons notwithstanding that at various times in the history of this matter such agreements bore different descriptors, for example “certified agreement”, “Australian Workplace Agreement”, “collective agreement” or “enterprise bargaining agreement”. However, where I have quoted a witness’ evidence, I have generally retained the descriptor that witness used.

11    In the ensuing years, the original 1994 enterprise agreement was replaced by a series of new enterprise agreements based on similar terms. Mr Close conducted the negotiations on behalf of the CFMEU for all of those agreements.

12    In 2003, Mr Smith purchased Universal Cranes. By that time, most of the company’s employees were members of the CFMEU. Shortly after the purchase, pursuant to a commitment given by its previous owners, Universal Cranes entered into a new enterprise agreement to replace the last of the series of agreements mentioned above. That agreement was on similar terms to its predecessors. When that agreement expired in approximately 2005 or 2006, Mr Close entered into negotiations with Mr Smith for an enterprise agreement to replace it. That enterprise agreement was to be based on the CFMEU’s then model enterprise agreement. Some time later, those negotiations failed and Universal Cranes entered into a non-union enterprise agreement with its employees: the Universal Cranes Pty Ltd Employee Collective Agreement 2008 (the 2008 EA). That agreement was due to expire in 2011 or 2012.

13    In early to mid 2012, Mr Smith contacted Mr Close and inquired about the terms upon which Universal Cranes and the CFMEU might enter into a new enterprise agreement to replace the 2008 EA based on the terms of the CFMEU’s model agreement. This contact appears to have included a telephone call Mr Smith made to either Mr Sutherland or Mr Close in June 2012. It was then followed by an email Mr Smith sent on 21 June 2012. No agreement resulted from these communications.

14    At about the same time, Mr Smith negotiated with Universal Cranes’ employees for a new non-union enterprise agreement to replace the 2008 EA. A majority of the employees voted in favour of that enterprise agreement at a ballot conducted on 9 July 2012. The resulting agreement was approved by the Fair Work Commission on 2 August 2012: the Universal Cranes Pty Ltd Employee Collective Agreement 2012 (the 2012 EA).

15    As has already been noted above, three of the four incidents at the centre of this proceeding occurred in July 2012: two at the Legacy Way project and one (the second Port Connect incident) at the Port Connect project.

16    In mid August 2012, there was a further exchange of emails between Mr Smith and Mr Close concerning the possibility of Universal Cranes and the CFMEU entering into an enterprise agreement based on the CFMEU model agreement. Approximately a week later, on 23 August 2012, a meeting was held at the CFMEU offices at Bowen Hills in Brisbane. The attendees at that meeting included Mr Smith and Mr Schalck, on behalf of Universal Cranes, and Mr Ravbar, Mr Close and Mr Ingham, and potentially Mr Sutherland, on behalf of the CFMEU. The primary purpose of this meeting was to discuss the possibility of Universal Cranes and the CFMEU entering into a CFMEU model agreement. No agreement was reached at that meeting.

17    Approximately two months later, in October 2012, the fourth of the incidents at the centre of this proceeding occurred at the Port Connect project (the third Port Connect incident).

18    In mid 2013, Universal Cranes and the CFMEU did eventually enter into a CFMEU model agreement. However, its terms contained some variations to the standard CFMEU model agreement.

19    Finally, it should be noted that, in 2011 or 2012, Universal Cranes entered into a plant hire agreement to provide a 100 tonne crawler crane to a subcontractor working on the Legacy Way project site. That crane was hired on a “dry” hire basis, although there is a dispute, which I will come to later in these reasons, as to whether it remained so throughout the hire period. At about the same time, Universal Cranes entered into a similar plant hire agreement with BMD Seymour Whyte Joint Venture to provide portable cranes for the Port Connect project. The cranes hired under that agreement were hired on a “wet” hire basis.

THE ALLEGED CONTRAVENTIONS

The first Legacy Way incident

20    In his amended statement of claim (the ASOC), the Commissioner pleaded the following facts as being material to the contraventions that allegedly occurred during the first Legacy Way incident (ASOC at [22]–[26]):

22.    In or about mid 2012 Mr Cradden stated to Mr Close to the effect that he had seen a Universal Cranes crane operating at the Legacy Way project.

23.    Following the conversation pleaded in paragraph 22 above, Mr Close directed Mr Cradden to attend at the Legacy Way Project to stop the Universal Cranes crane from working, by stating words to the effect of “We need that crane off the job, we need it to stop work” and “You had better go over there and stop the crane from working or get it removed” (“the First Direction”).

24.    Mr Close gave the First Direction:

(a)    because Universal Cranes was seeking to make, or had made, an enterprise agreement directly with Universal Cranes’ employees on terms that were different to the CFMEU pattern agreement;

(b)    because Universal Cranes had not, or was not, seeking to enter into a CFMEU pattern agreement with Universal Cranes’ employees;

(c)    to force Universal Cranes to seek to enter into a CFMEU pattern agreement with Universal Cranes’ employees.

25.    Mr Cradden attended at the Legacy Way Project and stated to the site supervisor, Geoff Young, by reference to the Universal Cranes crawler crane, to the effect that:

(a)    “You need to get this crane off this job”;

(b)    ‘‘Well it needs to go. Universal Cranes is a ‘non-EBA company’”.

26.    The First Direction had the effect, directly or indirectly, of prejudicing Universal Cranes in relation to a contract for services in that it caused Mr Cradden to seek to stop Universal Cranes from performing the crane services for which it had been hired for the Legacy Way Project.

The term “CFMEU pattern agreement” was defined earlier in the ASOC to be “an enterprise agreement under the FW Act that covered the CFMEU and contained terms acceptable to the CFMEU” (ASOC at [13](b)).

21    Based upon the facts set out above, the Commissioner alleged that Mr Close had contravened ss 340, 343 and 354 of the FW Act in the following terms. First, he alleged that Mr Close (ASOC at [29]) had, by the actions described in [18]–[26] of the ASOC, contravened s 340 because:

27.    … [he] took adverse action against Universal Cranes in mid 2012 for the purposes of s.342, Item 7, of the FW Act.

[and]

28.    … [he took that] action against Universal Cranes because Universal Cranes:

(a)    had exercised a workplace right under s.341(1)(b) of the FW Act for the purposes of s.340(1)(a)(ii) of the FW Act;

(b)    had not exercised a workplace right under s.341(1)(b) of the FW Act for the purposes of s.340(1)(a)(ii) of the FW Act;

(c)    proposed not to exercise a workplace right under s.341(1)(b) of the FW Act for the purposes of s.340(1)(a)(iii) of the FW Act.

22    Secondly, he alleged that Mr Close (ASOC at [31]) had, by the actions described in [23] of the ASOC above, taken action in breach of s 343 of the FW Act because those actions were taken:

30.    … with an intent to coerce Universal Cranes to initiate or participate in a process or proceedings under the FW Act to make a CFMEU pattern agreement in that:

(a)    [he] intended to apply pressure to Universal Cranes by interfering with its capacity to perform work and earn income so as to force it to seek to make an enterprise agreement on the terms of the CFMEU pattern agreement;

(b)    the exertion of the pressure was unlawful, illegitimate and/or unconscionable in that it was:

(i)    in contravention of s.340 of the FW Act;

(ii)    action which was adverse to Universal Cranes that neither Mr Close nor the CFMEU had any entitlement to undertake.

23    Thirdly, he alleged that Mr Close (ASOC at [34]) had, by the actions described in [23] of the ASOC above, contravened s 354 of the FW Act in that he took that action because (ASOC at [32]):

(a)    Universal Cranes’ employees were not covered by a CFMEU pattern agreement;

(b)    Universal Cranes proposed that Universal Cranes’ employees would not be covered by a CFMEU pattern agreement.

and that conduct “disadvantaged Universal Cranes in that Universal Cranes was unable to perform cranage services scheduled on the day” (ASOC at [33]).

24    As well as denying all of the alleged contraventions, the salient aspects of the respondents’ amended defence with respect to this incident were as follows:

(a)    Mr Close denied the allegations in [22]–[24] of the ASOC and the other four respondents said they did not know, and did not therefore admit, those allegations (amended defence at [22]–[24]);

(b)    all of the respondents said that they did not know, and therefore did not admit, the allegations in [25] of the ASOC (amended defence at [25]); and

(c)    as well as denying that the alleged direction had occurred, all of the respondents denied that the conduct pleaded in [26] and [27]–[33](a) and [34] of the ASOC amounted to “prejudicing Universal Cranes in respect of the contract because Mr Young took no steps in response to Mr Cradden’s conduct” (amended defence at [26]); and

(d)    all of the respondents, in addition, claimed that the conduct pleaded did not disadvantage “Universal Cranes in respect of the contract because Mr Young took no steps in response to Mr Cradden’s conduct” (amended defence at [33](b) and [34]).

The second Legacy Way incident

25    In his ASOC, the Commissioner pleaded the following facts as being material to the contraventions that allegedly occurred during the second Legacy Way incident (ASOC at [35]–[39]):

35.    In or about July 2012 Mr Cradden attended an Organisers’ Meeting that was conducted by Mr Ravbar and attended by Mr Close.

36.    During the Organisers’ Meeting, Universal Cranes was discussed as an agenda item and a meeting attendee stated to the effect that a Universal Cranes crawler crane had been seen again at the Legacy Way Project.

37.    Mr Ravbar or Mr Close, in the presence of and acting in conjunction with the other, stated at the Organiser’s Meeting to Mr Cradden to the effect that:

(a)    Mr Cradden was to return to the Legacy Way Project and stop the Universal Cranes crawler crane from working;

(b)    Mr Cradden was to take Mr Toyer with him to stop the crane (the “Second Direction”).

38.    The Second Direction was given:

(a)    because Universal Cranes was seeking to make, or had made, an enterprise agreement directly with Universal Cranes’ employees on terms that were different to the CFMEU pattern agreement;

(b)    because Universal Cranes had not, or was not, seeking to enter into a CFMEU pattern agreement with Universal Cranes’ employees;

(c)    to force Universal Cranes to seek to enter into a CFMEU pattern agreement with Universal Cranes’ employees.

39.    Mr Cradden and Mr Toyer attended at the Legacy Way Project and in the presence of and acting in conjunction with the other:

(a)    stood in front of the tracks of the Universal Cranes crawler crane;

(b)    Mr Cradden stated to the site supervisor, Mr Young, words to the effect, “We’re here to hold the crane. It has to go”;

(c)    Mr Young stated to the effect, ‘Why?”;

(d)    Mr Cradden stated to Mr Young to the effect, “Because it does. We won’t be leaving until it’s moved. Use some other crane”;

(e)    Mr Young stated to the effect, “Well it’s going today anyway. It’s being removed later today from site, this particular one”;

(f)    Mr Cradden stated to Mr Young to the effect, “You know what will happen if it’s not moved, we’ll just stay here until it is”.

26    Based upon the facts set out above, the Commissioner alleged that Mr Ravbar, Mr Close and Mr Toyer had contravened ss 340, 343 and 354 of the FW Act in the following terms. First, he alleged that they had contravened s 340 (ASOC at [45]) because:

40.    Mr Toyer took the action pleaded above:

(a)    because Universal Cranes was seeking to make, or had made, an enterprise agreement directly with Universal Cranes’ employees on terms that were different to the CFMEU pattern agreement;

(b)    because Universal Cranes had not, or was not, seeking to enter into a CFMEU pattern agreement with Universal Cranes’ employees;

(c)    to force Universal Cranes to seek to enter into a CFMEU pattern agreement with Universal Cranes’ employees.

41.    The Second Direction had the effect, directly or indirectly, of prejudicing Universal Cranes in relation to a contract for services in that it caused Mr Cradden and Mr Toyer to take action to stop Universal Cranes from performing crane services at the Legacy Way Project.

42.    The actions of Mr Toyer pleaded in paragraph 39 above had the effect, directly or indirectly, of prejudicing Universal Cranes in relation to a contract for services in that Universal Cranes was stopped from performing crane services at the Legacy Way Project.

43.    … [Mr Ravbar, Mr Close and Mr Toyer therefore] took adverse action against Universal Cranes in July 2012 for the purposes of s.342, Item 7, of the FW Act.

44.    … [and they] took [that] action against Universal Cranes because Universal Cranes:

(a)    had exercised a workplace right under s.341(1)(b) of the FW Act for the purposes of s.340(1)(a)(ii) of the FW Act;

(b)    had not exercised a workplace right under s.341(1)(b) of the FW Act for the purposes of s.340(1)(a)(ii) of the FW Act;

(c)    proposed not to exercise a workplace right under s.341(1)(b) of the FW Act for the purposes of s.340(1)(a)(iii) of the FW Act.

27    Secondly, he alleged they had contravened s 343 of the FW Act, first, with respect to Mr Ravbar (ASOC at [47]), by the actions described in [37] of the ASOC above, in that that action was taken:

46.    … with an intent to coerce Universal Cranes to initiate or participate in a process or proceedings under the FW Act to make a CFMEU pattern agreement in that:

(a)    [he] intended to apply pressure to Universal Cranes by interfering with its capacity to perform work and earn income so as to force it to seek to make an enterprise agreement on the terms of the CFMEU pattern agreement;

(b)    the exertion of the pressure was unlawful, illegitimate and/or unconscionable in that it was:

(i)    in contravention of s.340 of the FW Act;

(ii)    action which was adverse to Universal Cranes that neither [he] nor the CFMEU had any entitlement to undertake.

28    Further, with respect to Mr Close (ASOC at [49]), by the actions described in [37] of the ASOC above, in that that action was taken:

48.    … with an intent to coerce Universal Cranes to initiate or participate in a process or proceedings under the FW Act to make a CFMEU pattern agreement in that:

(a)    [he] intended to apply pressure to Universal Cranes by interfering with its capacity to perform work and earn income so as to force it to seek to make an enterprise agreement on the terms of the CFMEU pattern agreement;

(b)    the exertion of the pressure was unlawful, illegitimate and/or unconscionable in that it was:

(i)    in contravention of s.340 of the FW Act;

(ii)    action which was adverse to Universal Cranes that neither [he] nor the CFMEU had any entitlement to undertake.

29    And further, with respect to Mr Toyer (ASOC at [51]), by the actions described in [39] of the ASOC above, in that that action was taken:

50.    … with an intent to coerce Universal Cranes to initiate or participate in a process or proceedings under the FW Act to make a CFMEU pattern agreement in that:

(a)    [he] intended to apply pressure to Universal Cranes by interfering with its capacity to perform work and earn income so as to force it to seek to make an enterprise agreement on the terms of the CFMEU pattern agreement;

(b)    the exertion of the pressure was unlawful, illegitimate and/or unconscionable in that it was:

(i)    in contravention of s.340 of the FW Act;

(ii)    action which was adverse to Universal Cranes that neither [he] nor the CFMEU had any entitlement to undertake.

30    Thirdly, he alleged they had contravened s 354 of the FW Act, first, with respect to Mr Ravbar (ASOC at [54]) and Mr Close (ASOC at [57]), by the actions described in [37] of the ASOC above, in that they took that action because (ASOC at [52] and [55] respectively):

(a)    Universal Cranes’ employees were not covered by a CFMEU pattern agreement;

(b)    Universal Cranes proposed that Universal Cranes’ employees would not be covered by a CFMEU pattern agreement.

and that conduct “disadvantaged Universal Cranes in that Universal Cranes was unable to perform cranage services scheduled on the day” (ASOC at [53] and [56] respectively).

31    Further, with respect to Mr Toyer (ASOC at [60]), by the actions described in [39] of the ASOC above, in that he took that action because (ASOC at [58]):

(a)    Universal Cranes’ employees were not covered by a CFMEU pattern agreement;

(b)    Universal Cranes proposed that Universal Cranes’ employees would not be covered by a CFMEU pattern agreement.

and that conduct “disadvantaged Universal Cranes in that Universal Cranes was unable to perform cranage services scheduled on the day” (ASOC at [59]).

32    Fourthly and finally, with respect to Mr Ravbar (ASOC at [61]) and Mr Close (ASOC at [62]), the Commissioner relied upon s 550 of the FW Act to allege that they were each liable for Mr Toyer’s contraventions of the FW Act as described above (at [45], [51] and [60] of the ASOC) because they:

(a)    [had] aided, abetted, counselled and/or procured the contraventions;

(b)    [were] directly or indirectly knowingly concerned in or a party to the contraventions;

(c)    [had] conspired with Mr Toyer to effect the contraventions.

33    As well as denying all of the alleged contraventions, the salient aspects of the respondents’ amended defence with respect to this incident were as follows:

(a)    with the exception that the fifth respondent, the CFMEU, claimed it did not know, and did not therefore admit, the allegations in [35] of the ASOC, the other four respondents denied the allegations in [35] and all five respondents denied the allegations in [36]–[38] of the ASOC (amended defence at [35]–[38]);

(b)    Mr Toyer denied the allegations in [39] of the ASOC because he claimed he did not engage in any contravening conduct when in attendance at the Legacy Way project; and the other four respondents claimed that they did not know, and did not therefore admit, those allegations (amended defence at [39]);

(c)    Mr Toyer also denied the allegations in [40] of the ASOC for the same reason as in (b) above and because he claimed he did not know of the matters alleged in [40](a) and (b) of the ASOC, namely the enterprise agreement rationale, and therefore he claimed he did not have the intention pleaded in [40](c); and the other four respondents claimed that they did not know, and did not therefore admit, those allegations (amended defence at [40]);

(d)    all the respondents denied the allegations of prejudice in [41] of the ASOC because they claimed “no such direction was given” (amended defence at [41]);

(e)    all the respondents denied the allegations of prejudice in [42] of the ASOC because of the matters pleaded in [39] of the amended defence, namely because Mr Toyer claimed he had not engaged in any contravening conduct (amended defence at [42]);

(f)    all the respondents denied the allegations in [43] of the ASOC because they claimed that none of them took any adverse action as alleged (amended defence at [43]);

(g)    all of the respondents denied the allegations in [52]–[60] of the ASOC because they claimed none of them took any adverse action and the allegations in [58]–[60] were additionally denied on the basis that Mr Toyer did not know of the matters alleged in [40](a) and (b) of the ASOC, namely the enterprise agreement rationale, and therefore he claimed he did not have the intention pleaded in [40](c); and

(h)    all the respondents denied the allegations in [61] and [62] of the ASOC because: of the matters pleaded in [40](b) of the amended defence, namely the claimed lack of knowledge of the enterprise agreement rationale and consequential lack of intention; and/or because of the matters pleaded in [43] of the amended defence, namely the denial of any adverse action; and/or because they claimed that “[Mr Close] did not know [Mr Toyer’s] intentions or reasons for acting” (amended defence at [61]–[62]).

The second Port Connect incident

34    In his ASOC, the Commissioner pleaded the following facts as being material to the contraventions that allegedly occurred during the second Port Connect incident (ASOC at [82]–[90]):

82.    In mid 2012, at an Organisers’ Meeting, Mr Ravbar stated words to the effect that he had driven past the Project and saw a Universal Cranes crane operating at the Project.

83.    Mr Ravbar said to Mr Cradden words to the effect, “Why is that crane still operating on it?”.

84.    Mr Ravbar then told Mr Cradden to the effect that he should go [to] the Project the next morning and to take Mr Toyer with him to stop the crane from working.

85.    Later that day, Mr Cradden and Mr Toyer discussed the means by which they could have the Universal Cranes crawler crane removed from the Project.

86.    Mr Cradden and Mr Toyer had a discussion in which they agreed that they would attend the project the next morning and try to identify a safety issue with the crane that they could rely upon so as to disrupt its use.

87.    Mr Cradden and Mr Toyer in the presence of and acting in conjunction with the other attended at the Project and stood in front of a Universal Cranes crawler crane.

88.    Mr Cradden and Mr Toyer performed a safety audit and identified that the crawler crane did not have a wind meter.

89.    The lack of a wind meter was a minor safety issue that did not require the crawler crane to be removed from the Project.

90.    Mr Cradden and Mr Toyer in the presence of and acting in conjunction with the other spoke with Mr Zoller and Mr Cradden said to the effect:

(a)    “This crane has to go. The wind meter is not operating properly’”;

(b)    “Look this is nothing personal, it’s not against you, it’s against Universal”.

35    Based upon the facts set out above, the Commissioner alleged that Mr Ravbar and Mr Toyer had contravened ss 340, 343 and 354 of the FW Act in the following terms. First, he alleged that they had contravened s 340 (ASOC at [96]) because:

91.    Mr Toyer took the action pleaded above:

(a)    because Universal Cranes was seeking to make, or had made, an enterprise agreement directly with Universal Cranes’ employees on terms that were different to the CFMEU pattern agreement;

(b)    because Universal Cranes had not, or was not, seeking to enter into a CFMEU pattern agreement with Universal Cranes’ employees;

(c)    to force Universal Cranes to seek to enter into a CFMEU pattern agreement with Universal Cranes’ employees.

92.    The direction given by Mr Ravbar pleaded in paragraph 84 above had the effect, directly or indirectly, of prejudicing Universal Cranes in relation to a contract for services in that it caused Mr Cradden and Mr Toyer to seek to stop Universal Cranes from performing the crane services for which it had been hired for the Project.

93.    The actions of Mr Toyer pleaded in paragraph 85 to 91 above had the effect, directly or indirectly, of prejudicing Universal Cranes in relation to a contract for services in that Mr Cradden and Mr Toyer sought to stop Universal Cranes from performing the crane services for which it had been hired for the Project.

94.    … [they] took adverse action against Universal Cranes for the purposes of s.342, Item 7, of the FW Act.

95.    … [and they] took [that] action against Universal Cranes because Universal Cranes:

(a)    had exercised a workplace right under s.341(1)(b) of the FW Act for the purposes of s.340(1)(a)(ii) of the FW Act;

(b)    had not exercised a workplace right under s.341(1)(b) of the FW Act for the purposes of s.340(1)(a)(ii) of the FW Act;

(c)    proposed not to exercise a workplace right under s.341(1)(b) of the FW Act for the purposes of s.340(1)(a)(iii) of the FW Act.    

36    Secondly, he alleged they had contravened s 343 of the FW Act, first, with respect to Mr Ravbar (ASOC at [98]), by the actions described in [84] of the ASOC above, in that that action was taken:

97.    … with an intent to coerce Universal Cranes to initiate or participate in a process or proceedings under the FW Act to make a CFMEU pattern agreement in that:

(a)    [he] intended to apply pressure to Universal Cranes by interfering with its capacity to perform work and earn income so as to force it to seek to make a CFMEU pattern agreement;

(b)    the exertion of the pressure was unlawful, illegitimate and/or unconscionable in that it was:

(i)    in contravention of s.340 of the FW Act;

(ii)    action which was adverse to Universal Cranes that neither [he] nor the CFMEU had any entitlement to undertake.

37    Further, with respect to Mr Toyer (ASOC at [100]), by the actions described in [85]–[91] of the ASOC above, in that that action was taken:

99.    … with an intent to coerce Universal Cranes to initiate or participate in a process or proceedings under the FW Act to make a CFMEU pattern agreement in that:

(a)    [he] intended to apply pressure to Universal Cranes by interfering with its capacity to perform work and earn income so as to force it to seek to make a CFMEU pattern agreement;

(b)    the exertion of the pressure was unlawful, illegitimate and/or unconscionable in that it was:

(i)    in contravention of s.340 of the FW Act;

(ii)    action which was adverse to Universal Cranes that neither [he] nor the CFMEU had any entitlement to undertake.

38    Thirdly, he alleged they had contravened s 354 of the FW Act, first with respect to Mr Ravbar (ASOC at [103]), by his actions described in [84] of the ASOC above, in that he took that action because (ASOC at [101]):

(a)    Universal Cranes’ employees were not covered by a CFMEU pattern agreement;

(b)    Universal Cranes proposed that Universal Cranes’ employees would not be covered by a CFMEU pattern agreement.

and that conduct “disadvantaged Universal Cranes in that Universal Cranes was … prevented from performing cranage services” (ASOC at [102]).

39    Further, with respect to Mr Toyer (ASOC at [106]), by his actions described in [85]–[91] of the ASOC above, in that he took that action because (ASOC at [104]):

(a)    Universal Cranes’ employees were not covered by a CFMEU pattern agreement;

(b)    Universal Cranes proposed that Universal Cranes’ employees would not be covered by a CFMEU pattern agreement.

and that conduct “disadvantaged Universal Cranes in that Universal Cranes was … prevented from performing cranage services” (ASOC at [105]).

40    Fourthly and finally, with respect to Mr Ravbar (ASOC at [107]), the Commissioner relied upon s 550 of the FW Act to allege that he was liable for Mr Toyer’s contraventions of the FW Act as described above (at [96], [100] and [106] of the ASOC) because he:

(a)    [had] aided, abetted, counselled and/or procured the contraventions;

(b)    was directly or indirectly knowingly concerned in or a party to the contraventions;

(c)    [had] conspired with Mr Toyer to effect the contraventions.

41    As well as denying all of the alleged contraventions, the salient aspects of the respondents’ amended defence with respect to this incident were as follows:

(a)    the individual respondents denied the allegations in [82]–[84] because they claimed they were untrue and the fifth respondent, the CFMEU, claimed that it did not know, and did not therefore admit those allegations (amended defence at [82]–[84]);

(b)    all of the respondents denied the allegations in [96], [98], [100], [103] and [106] (amended defence at [96], [98], [100], [103] and [106]);

(c)    Mr Toyer:

(i)    denied the allegations in [85] and [86] because he claimed they were untrue and because “Mr Cradden contacted [him] and advised him that (amended defence at [85]):

a.    a member of the [CFMEU] at the Port Connect job had raised safety concerns; and

b.    [he] and Mr John Tucker were required to attend the site to assist Mr Cradden conduct a safety inspection.

(ii)    denied the allegations in [87] and said further “that he attended the site with Mr Cradden and Mr Tucker for the purposes of investigating suspected contravention of the Work Health and Safety Act 2011 (Qld)” (amended defence at [87]);

(iii)    admitted the allegations in [88] and said further that (amended defence at [88]):

a.    Mr Cradden, Mr Tucker and [he] conducted a safety inspection;

b.    they identified a number of safety issues which did not solely relate to the Universal Crane;

c.    they provided Mr Zoller with notice identifying the safety issues they had found; and

d.    [his] sole reason for providing the notice was that he thought the safety issues needed to be rectified.

(iv)    denied the allegations in [89] and said further “that an (sic – at) no time did [he] or Mr Tucker assert that the crane in question had to be removed from the site” (amended defence at [89]);

(v)    denied the allegations in [90] because they were untrue (amended defence at [90]);

(vi)    denied the allegations in [91] because of the matters pleaded in [85]–[89] above; and because “[f]urther and alternatively, the matters pleaded in paragraph 40 (b)” above (amended defence at [91]);

(d)    the other respondents, apart from Mr Toyer, claimed that they did not know, and did not therefore admit, the allegations in [85]–[91] above (amended defence at [85]–[91]);

(e)    all of the respondents denied the allegations in [92]–[94] because of the matters pleaded in [82]–[84], namely their claims that those allegations were untrue; alternatively because of the matters pleaded in [85]–[89], namely Mr Toyer’s description of this incident; and alternatively for [92]–[93], because “Universal Cranes were not prejudiced in any material way” (amended defence at [92]–[94]);

(f)    all of the respondents denied the allegations in [95], [97] and [101] because of the matters pleaded in [82]–[84], namely their claims that those allegations were untrue; and alternatively for [95], because of the matters pleaded in [85]–[89], namely Mr Toyer’s description of this incident; and because of the matters pleaded in [40](b), namely that Mr Toyer lacked the requisite knowledge and intention (amended defence at [95], [97] and [101]);

(g)    all of the respondents denied the allegations in [99] and [104] because of the matters pleaded in [85]–[89], namely Mr Toyer’s description of this incident; and alternatively because of the matters pleaded in [40](b), namely that Mr Toyer lacked the requisite knowledge and intention (amended defence at [99] and [104]);

(h)    all of the respondents denied the allegations in [105] because “Universal Cranes were not disadvantaged by [Mr Toyer’s] conduct” (amended defence at [105]); and

(i)    all of the respondents denied the allegations in [102] and [107] because of the matters pleaded in [82]–[84], namely their claims that those allegations were untrue; alternatively for [102] because “Universal Cranes were not prejudiced in any material way”; and alternatively for [107] because of the matters pleaded in [85]–[89], namely Mr Toyer’s description of this incident; alternatively because of the matters pleaded in [40](b), namely that Mr Toyer lacked the requisite knowledge and intention; and alternatively because Mr Ravbar did not know Mr Toyer’s “intentions or reasons for acting” (amended defence at [102] and [107]).

The third Port Connect incident

42    In his ASOC, the Commissioner pleaded the following facts as being material to the contraventions that allegedly occurred during the third Port Connect incident (ASOC at [134]–[149]):

134.    In or about October 2012, Universal Cranes was discussed as an agenda item at an Organisers’ Meeting attended by Mr Cradden, Mr Sutherland, Mr Ravbar and Mr Close.

135.    Mr Ravbar told the Organisers’ Meeting words to the effect that the CFMEU was not getting any traction with Universal Cranes.

136.    Mr Ravbar directed organisers present at the Organisers’ Meeting to undertake a coordinated operation to disrupt multiple Universal Cranes cranes by saying words to the effect:

(a)    go to the Universal Cranes yard, park around the corner from the yard, follow the cranes as they leave and then stop the cranes from operating once the cranes arrive at their destination;

(b)    “follow the cranes and stop them from working”.

137.    Around 5.30am the following morning, Mr Cradden and a number of organisers including Mr Sutherland and Mr Toyer attended the Universal Cranes yard in Murarrie so that they could observe when the cranes left the yard but not be seen by Universal Cranes’ employees working at the yard.

138.    At around 6.00am, a Universal Cranes franna crane left the yard. Mr Cradden and Mr Sutherland followed the crane in their vehicles. The crane attended the Project.

139.    Mr Cradden and Mr Sutherland drove their vehicles up a slip road and parked directly behind the franna crane.

140.    The effect of Mr Cradden’s and Mr Sutherlands’ actions pleaded in paragraphs 138 and 139 was that:

(a)    the franna crane was blocked by their vehicles and concrete barriers, and could not operate;

(b)    work at the Project in the area in which the crane was located stopped.

141.    Mr Zoller attended where the franna crane was located and was told by Mr Cradden in the presence of and acting in conjunction with Mr Sutherland words to the effect:

(a)    “Well we’re blocking the crane and it ain’t going anywhere. We told you what would happen. You need to get rid of them and we can recommend some other crane companies that you can use”;

(b)    Universal Cranes are a problem for this site and if Mr Zoller continues to use them, there would be stoppages and disruptions.

142.    As at October 2012 Mr Zoller was still the Construction Manager at the Project.

143.    Prior to and as at October 2012 Universal Cranes provided cranage services to the Project, including casual franna crane hire.

144.    Approximately one hour after the arrival of Mr Cradden and Mr Sutherland at the site, Mr Zoller directed the driver of the franna crane to take the crane back to the Universal Cranes yard.

145.    The franna crane did not perform any work that day on the Project.

146.    Subsequently, Mr Cradden and Mr Sutherland had a conversation with Mr Zoller in which Mr Cradden or Mr Sutherland stated to the effect that the Project would continue to have problems and they will continue to stop the cranes from operating as long as the Project used Universal Cranes.

147.    Mr Sutherland handed Mr Zoller a document listing “approved CFMEU crane contractors”.

148.    Mr Sutherland said words to the effect, “To keep your Project going use one of these companies”.

149.    Following the events of October 2012, the project utilised another crane company to perform regular ongoing day work.

43    Based upon the facts set out above, the Commissioner alleged that Mr Ravbar and Mr Sutherland had contravened ss 340, 343 and 354 of the FW Act in the following terms. First, he alleged that they had contravened s 340 (ASOC at [155]) because:

150.    Mr Ravbar and Mr Sutherland took the action pleaded above:

(a)    because Universal Cranes had made an enterprise agreement directly with Universal Cranes’ employees on terms that were different to the CFMEU pattern agreement;

(b)    because Universal Cranes had not, or was not, seeking to enter into a CFMEU pattern agreement with Universal Cranes’ employees;

(c)    to force Universal Cranes to seek to enter into a CFMEU pattern agreement with Universal Cranes’ employees.

151.    The direction given by Mr Ravbar pleaded in paragraph 136 above had the effect, directly or indirectly, of prejudicing Universal Cranes in relation to a contract for services in that it caused Mr Cradden and Mr Sutherland to stop Universal Cranes from performing work that it had been engaged to perform for the Project.

152.    The actions of Mr Sutherland pleaded above had the effect, directly or indirectly, of prejudicing Universal Cranes in relation to a contract for services in that Universal Cranes was prevented from performing the crane services in or about October 2012 for which it had been hired by the Project, and from being hired for ongoing day work thereafter.

153.    … [they themselves] took adverse action against Universal Cranes in or about October 2012 for the purposes of s.342, Item 7, of the FW Act.

154.    … [and they] took [that] action against Universal Cranes in or about October 2012 because Universal Cranes:

(a)    had exercised a workplace right under s.341 (1)(b) of the FW Act for the purposes of s.340(1)(a)(ii) of the FW Act;

(b)    had not exercised a workplace right under s.341(1)(b) of the FW Act for the purposes of s.340(1)(a)(ii) of the FW Act;

(c)    proposed not to exercise a workplace right under s.341(1)(b) of the FW Act for the purposes of s.340(1)(a)(iii) of the FW Act.

44    Secondly, he alleged they had contravened s 343 of the FW Act, with respect to Mr Ravbar (ASOC at [157]), by the actions described in [136] of the ASOC above, in that that action was taken:

156.    … with an intent to coerce Universal Cranes to initiate or participate in a process or proceedings under the FW Act to make a CFMEU pattern agreement in that:

(a)    [he] intended to apply pressure to Universal Cranes by interfering with its capacity to perform work and earn income so as to force it to make a CFMEU pattern agreement;

(b)    the exertion of the pressure was unlawful, illegitimate and/or unconscionable in that it was:

(i)    in contravention of s.340 of the FW Act;

(ii)    action which was adverse to Universal Cranes that neither [he] nor the CFMEU had any entitlement to undertake.

45    Further, with respect to Mr Sutherland (ASOC at [159]), by the actions described in [137]–[150] of the ASOC above, in that that action was taken:

158.    … with an intent to coerce Universal Cranes to initiate or participate in a process or proceedings under the FW Act to make a CFMEU pattern agreement in that:

(a)    [he] intended to apply pressure to Universal Cranes by interfering with its capacity to perform work and earn income so as to force it to make a CFMEU pattern agreement;

(b)    the exertion of the pressure was unlawful, illegitimate and/or unconscionable in that it was:

(i)    in contravention of s.340 of the FW Act;

(ii)    action which was adverse to Universal Cranes that neither [he] nor the CFMEU had any entitlement to undertake.

46    Thirdly, he alleged they had contravened s 354 of the FW Act, with respect to Mr Ravbar (ASOC at [162]), by his actions described in [136] of the ASOC above, in that he took that action because (ASOC at [160]):

(a)    Universal Cranes’ employees were not covered by a CFMEU pattern agreement;

(b)    Universal Cranes proposed that Universal Cranes’ employees would not be covered by a CFMEU pattern agreement.

and that conduct “disadvantaged Universal Cranes in that Universal Cranes was unable to perform cranage services in or about October 2012 or thereafter during the day” (ASOC at [161]).

47    Further, with respect to Mr Sutherland (ASOC at [165]), by his actions described in [137]–[150] of the ASOC above, in that he took that action because (ASOC at [163]):

(a)    Universal Cranes’ employees were not covered by a CFMEU pattern agreement;

(b)    Universal Cranes proposed that Universal Cranes’ employees would not be covered by a CFMEU pattern agreement.

and that conduct “disadvantaged Universal Cranes in that Universal Cranes was unable to perform cranage services in or about October 2012 or thereafter during the day” (ASOC at [164]).

48    Fourthly and finally, with respect to Mr Ravbar (ASOC at [166]), the Commissioner relied upon s 550 of the FW Act to allege that he was liable for Mr Sutherland’s contraventions of the FW Act as described above (at [155], [159] and [165] of the ASOC) because he:

(a)    [had] aided, abetted, counselled and/or procured the contraventions;

(b)    was directly or indirectly knowingly concerned in or a party to the contraventions;

(c)    [had] conspired with Mr Sutherland to effect the contraventions.

49    As well as denying all of the alleged contraventions, the salient aspects of the respondents’ amended defence with respect to this incident were as follows:

(a)    the individual respondents denied the allegations in [134], [135] and [136] because they claimed they were untrue and the CFMEU claimed that it did not know, and did not therefore admit, those allegations (amended defence at [134], [135] and [136]);

(b)    Mr Sutherland and Mr Toyer denied the allegations in [137] and said further that “at the request of Mr Cradden [they] attended the Universal Cranes yard at Murrarie” and the other three respondents (Mr Ravbar, Mr Close and the CFMEU) claimed that they did not know, and did not therefore admit, those allegations (amended defence at [137]);

(c)    Mr Sutherland denied the allegations in [138], [139], [140], [141], [144], [147] and [148] and the other four respondents claimed that they did not know, and did not therefore admit, those allegations (amended defence at [138]–[141], [144] and [147]–[148]);

(d)    all of the respondents claimed that they did not know, and did not therefore admit, the allegations in [142], [143], [145] and [149] (amended defence at [142], [143], [145] and [149]);

(e)    Mr Sutherland denied the allegations in [146] and said further that “Mr Cradden had a conversation, but that [he] took no active part in the conversation” and the other four respondents claimed that they did not know, and did not therefore admit, those allegations (amended defence at [146]); and

(f)    all of the respondents denied the allegations in [166] because: of the matters pleaded in [134]–[136] of the amended defence, namely their claims that those allegations were untrue; in the alternative, [137], [146] and [147] of the amended defence, namely Mr Sutherland’s and Mr Toyer’s description of this incident and; in the alternative, because “further and alternately, [Mr Ravbar] did not know [Mr Sutherland’s] reasons or intentions for acting” (amended defence at [166]).

Liability of the CFMEU

50    The Commissioner’s case against the CFMEU relied upon ss 793 and 363 of the FW Act. Relying upon those provisions, the Commissioner claimed that the CFMEU was liable for the actions or conduct of the other four respondents because (ASOC at [167]–[170]):

167.    The actions of Mr Ravbar, Mr Close, Mr Toyer and Mr Sutherland pleaded herein were engaged in on behalf of the CFMEU because each of Mr Ravbar, Mr Close, Mr Toyer and Mr Sutherland, respectively, took the said action in their capacity as an official and/or organiser of the CFMEU.

168.    The conduct of each of Mr Ravbar, Mr Close, Mr Toyer and Mr Sutherland pleaded herein was engaged in as an employee of the CFMEU.

169.    Mr Ravbar and Mr Close were, in engaging in the conduct pleaded herein, each acting within the scope of their actual or apparent authority in that they were each a person who had the capacity to direct the conduct of organisers of the CFMEU.

170.    Each of Mr Toyer and Mr Sutherland were, in engaging in the conduct pleaded herein, acting within the scope of their actual authority because they were each people who had the capacity to, on behalf of the CFMEU, to liaise with and give directions to contractors, and they were acting on Mr Ravbar’s or Mr Close’s direction.

51    Accordingly, the Commissioner alleged that, on the basis of the matters pleaded above (ASOC at [171]):

a)    the CFMEU is liable pursuant to s.793 of the FW Act for the conduct of, and contraventions by, each of Mr Ravbar, Mr Close, Mr Toyer and Mr Sutherland; or in the alternative,

b)    the action taken by each of Mr Ravbar, Mr Close, Mr Toyer and Mr Sutherland is action of the CFMEU pursuant to s.363(1)(b) of the FW Act and the CFMEU is liable for their respective contraventions.

52    In their amended defence at [167]–[171], the respondents denied the allegations in each of these paragraphs of the ASOC for the reasons pleaded in their amended defence, namely their claims that none of the four individual respondents had committed any of the alleged contraventions of the FW Act.

Alleged contraventions not pursued

53    Before leaving this summary of the pleaded contraventions, it is convenient to identify a number of alleged contraventions raised by the Commissioner’s ASOC that he elected not to pursue. First, at the outset of the trial, the Commissioner announced that he no longer wished to pursue the contraventions pleaded in [121](c) and (d), and [122]–[129] inclusive of his ASOC. Those paragraphs concerned an allegation that, at the 23 August 2012 meeting, Mr Ravbar told Mr Smith (ASOC [121](c) and (d)) that:

(c)     the CFMEU was going to continue to target Universal Cranes unless Universal Cranes entered into a CFMEU pattern agreement; and

(d)    the CFMEU would make it very hard for Universal Cranes to operate if it did not agree to the CFMEU pattern agreement.

54    Secondly, during closing addresses, the Commissioner abandoned two further sets of alleged contraventions. They concerned:

(a)    [108]–[116] of the ASOC, which described a demand allegedly made by Mr Close to Mr Smith in late July 2012 as follows (ASOC at [108]):

(a)    Mr Smith raised with Mr Close that a ban had been placed on Universal Cranes by the CFMEU;

(b)    Mr Close stated to the following effect, “Unless Universal Cranes enter into the CFMEU pattern agreement, Universal Cranes will not work on CFMEU controlled sites”;

(c)    Mr Close stated to the following effect, “We know you are on your knees. We will keep going until you sign”.

and,

(b)    [63]–[81] of the ASOC, which addressed an incident described as the First Port Connect incident which allegedly occurred in July 2012 as follows:

63.    In or about July 2012 Mr Cradden attend[ed] an Organisers’ Meeting conducted by Mr Ravbar and Mr Close. Mr Ravbar and Mr Close, in the presence of and acting in conjunction with the other, stated words to the effect:

(a)    We have had meetings with Mr Smith regarding a CFMEU pattern agreement with Universal Cranes and that things are not going well;

(b)    Mr Smith is standing his ground and is not cooperating with the CFMEU, and Mr Smith is going with his own enterprise agreement rather than a CFMEU pattern agreement;

(c)    We need to up the campaign against Universal Cranes because the enterprise agreement that Mr Smith had proposed is not acceptable;

(d)    Universal Cranes could not work on CFMEU sites until Mr Smith was prepared to “play ball”.

(the “Further Direction”).

64.    The Port Connect Project (the “Project”) was for the Department of Main Roads, Queensland, for the upgrading of the existing motorway from the Gateway Arterial Road through to the Port of Brisbane and it included safety improvements and widening the motorway to a two-lane-each-way motorway including upgrading intersections, overpasses and involved about six kilometres of road infrastructure.

65.    Mr Cradden subsequently attended at the Project and observed a Universal Cranes franna crane operating at the Project.

66.    As at July 2012 Jason Zoller (“Mr Zoller”) was the Construction Manager at the Project.

67.    Mr Cradden and Mr Zoller had a conversation to the following effect:

(a)    Mr Cradden said words to the effect, “Look Jason there’s a dispute going on at the moment with Universal Cranes. We are having dramas with them. It’d probably be in the interests of your job over here to use an alternative crane company because it’s going to get nasty. You’re going to get a lot of union activity on your job, so I recommend you get rid of them and bring someone else in”;

(b)    Mr Zoller said words to the effect, “Oh shit. Well, there isn’t much I can do. I have a say but other people have control. I’ll take it on board though and get back to you”;

(c)    Mr Cradden said words to the effect, “Well mate if you don’t get it sorted, I’ll keep coming back and there will be stoppages. It’ll just be easier if you get rid of them”.

55    It is worth noting that the question whether the CFMEU had targeted Universal Cranes and/or had commenced a campaign or implemented a ban against that company, as mentioned in these allegations, was raised in Mr Smith’s evidence (see [188] below). Furthermore, the significance of this first Port Connect incident, insofar as it affected Mr Cradden’s credibility, was also mentioned in the CFMEU’s closing submissions (see below). Later in these reasons, I will return to the effect that the abandonment of this first Port Connect incident had on Mr Cradden’s credit. The CFMEU’s submissions referred to above were as follows:

185.    Mr Cradden gave evidence that he knew that ensuring compliance at his job sites was his responsibility. He also gave evidence that it was his position that Universal Cranes could not comply with the requirements at either of his main sites. He even gave evidence that the First Port Connect incident occurred because he was acting on his own volition.

186.    Mr Cradden knew that he was responsible for ensuring compliance with the jump up clause and that Universal Cranes were not capable of complying. Rather than engage in the time consuming process of ensuring compliance he chose to act precipitously and demand that the principal contractors remove Universal Cranes.

187.    When all of these matters are considered together with the denials of any directions being given, the evidence of the other witnesses that they did not hear such directions being given and Mr Cradden’s own inability to recall the alleged directions with any precision, the only credible explanation is that Mr Cradden was acting on his own volition.

188.    Such a conclusion is also consistent with the fact that, despite the protracted negotiations, there were only a small number of incidents (there [sic – three] or four depending on the number of visits to Legacy Way) which were confined to Mr Cradden’s job sites. If the [CFMEU] truly did place a ban on Universal Cranes and if Mr Ravbar and Mr Close were giving directions of the type alleged, it would be expected that such action would have occurred on sites other than Mr Cradden’s. However, the [Commissioner] makes no such allegations.

(Footnotes omitted)

THE RELEVANT LEGISLATIVE PROVISIONS AND THE RELATED PRINCIPLES

56    It can be seen from the terms of the alleged contraventions set out above that the Commissioner has claimed that the four individual respondents have variously contravened ss 340, 343, 354 and 550 of the FW Act. The relevant parts of those provisions of the FW Act are set out hereunder. First, it is convenient to mention s 140 of the Evidence Act 1995 (Cth) (Evidence Act). It provides:

(1)    In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.

(2)    Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:

(a)    the nature of the cause of action or defence; and

(b)    the nature of the subject‑matter of the proceeding; and

(c)    the gravity of the matters alleged.

57    The operation of this section was considered most recently in the present context by the Full Court in Australian Building and Construction Commissioner v Hall [2018] FCAFC 83 (ABCC v Hall). There the Court referred with approval (at [98]) to the following observations of the primary judge (see Australian Building and Construction Commissioner v Hall (2017) 269 IR 28; [2017] FCA 274 at [18]–[20]):

18.    … The contraventions alleged by the Director have to take into account the fact that the contraventions alleged are contraventions of civil remedy provisions of the Fair Work Act. They are, accordingly, properly to be regarded as “quasi-criminal”: Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (No 3) [2002] ATPR 41-901 at [53] per Goldberg J; BHP Coal Pty Ltd v Construction, Forestry, Mining and Energy Union (2013) 239 IR 363 at [68]-[69] per Collier J.

19.    The standard of proof referred to in s 140(2) is a re-statement of the standard of proof referred to by Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336: Liquor Hospitality and Miscellaneous Union v Arnotts Biscuits Ltd (2010) 188 FCR 221; 198 IR 143 at [13] per Logan J. When commenting upon the evidence required in a petition for divorce on the ground of adultery under the Marriage Act 1928 (Vic), Dixon J in Briginshaw 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 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) 162 FCR 466 at [29]-[32] per Weinberg, Bennett and Rares JJ; Darlaston v Parker (2010) 189 FCR 1; 196 IR 307 at [17] per Flick J.

20    All such findings of fact as have been made in respect to the Director’s allegations as to contraventions have been made against the standard imposed by s 140(2) of the Evidence Act. Findings as to a contravention of the Fair Work Act are not findings lightly to be made.

58    While I am dealing with evidentiary matters it is also appropriate to mention the submissions that were made about drawing inferences. First, both parties relied upon the ruling in Jones v Dunkel (1959) 101 CLR 298 to submit that an inference should be drawn from the failure of the other to call a witness. On the Commissioner’s part, that contention was made with respect to the CFMEU’s failure to call Mr Sutherland. On the CFMEU’s part, it was made with respect to the Commissioner’s failure to call Mr Schalck.

59    In Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2010) 187 FCR 293; [2010] FCA 784 (McDonald), Barker J quoted (at [47]) Cross on Evidence (8th Australian ed, 2010) by JD Heydon to provide the following helpful summary of the application of this rule:

•    The unexplained failure by a party to give evidence, to call witnesses or to tender documents or other evidence or produce particular material to an expert witness may (not must) in appropriate circumstances lead to an inference that the uncalled evidence or missing material would not have assisted that party’s case [Cross on Evidence at [1215], p 40].

•    While the rule in Jones v Dunkel permits an inference that the untendered evidence would not have helped the party who failed to tender it, and entitles the trier of fact to take that into account in deciding whether to accept any particular evidence which relates to a matter on which the absent witness could have spoken, and the more readily to draw any inference fairly to be drawn from the other evidence by reason of the opponent being able to prove the contrary had the party chosen to give or call evidence, the rule does not permit an inference that the untendered evidence would in fact have been damaging to the party not tendering it. The rule cannot be employed to fill gaps in the evidence, or to convert conjecture and suspicion into inference. Nor does the rule prevent any inference favourable to the party who has failed to call the witness being drawn: other evidence may justify the drawing of the inference [Cross on Evidence at [1215], p 42].

•    The rule only applies where a party is required to explain or contradict something. What a party is required to explain or contradict depends on the issues in the case as thrown up in the pleadings or by the course of evidence in the case. No inference can be drawn unless evidence is given of facts requiring an answer. If there is no issue between the parties on a matter, there is nothing to answer. If there is an issue between them but the party bearing the burden of proof has tendered no evidence of it, the opponent is not required to answer [Cross on Evidence at [1215], p 42].

•    The most difficult aspect of the rule turns on the failure to call non-party witnesses. It is easy to apply the principle where it is the party who fails to give evidence. But the rule cannot be applied to the non-calling of the witness unless it would be natural for the party to call the witness or the party might reasonably be expected to call a witness, or a missing witness would be expected to be called by one party rather than another [Cross on Evidence at [1215], p 43-44].

(References in original)

60    Secondly, the CFMEU also relied upon what Barker J said earlier in McDonald about drawing inferences more generally. On that topic, his Honour said (at [42]–[44]):

42    So far as inferences are concerned, in Holloway v McFeeters (1956) 94 CLR 470 (Holloway), Williams, Webb and Taylor JJ, in a joint judgment, at 480, note that inferences from actual facts that are proved are just as much part of the evidence as those facts themselves. Their Honours referred, at 480-481, to the decision of the High Court in Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1 (Bradshaw) which made the following points (by reference to authority), at 5:

•    In a civil cause, you need only circumstances raising a more probable inference in favour of what is alleged.

•    Where direct proof is not available it is enough if the circumstances appearing in evidence give rise to a reasonable and definite inference.

•    They must do more than give risk to conflicting inferences of equal degree of probability so that the choice between them is (no) mere matter of conjecture.

43    In Bradshaw, the Court stated that, all that is necessary is that according to the course of common experience the more probable inference from the circumstances that sufficiently appear by evidence or admission, left unexplained, should be that the injury in issue in that case arose from the defendant’s negligence. By “more probable” is meant no more than that upon a balance of probabilities, such that an inference might reasonably be considered to have some greater degree of likelihood.

44    Notwithstanding the apparent simplicity with which the principles by which facts may be inferred in a given case may be stated, the application of these principles does not always lead to easy outcomes. In Holloway, the joint judgment found that it was reasonably open to the jury to find that the death of the deceased was caused wholly or in part by the negligence of the driver of an unidentified vehicle and so the plaintiff succeeded. However, Dixon CJ and Kitto J dissented concerning the sufficiency of the evidence. In Luxton v Vines (1952) 85 CLR 352 in a very similar fact situation to those in Holloway, the High Court held, again by a 3-2 majority that the plaintiff’s claim failed. In Jones v Dunkel (1959) 101 CLR 298, the High Court again divided 3-2 on the question of the sufficiency of the plaintiff’s case in favour of the plaintiff.

61    Finally, the CFMEU relied upon the Queensland Court of Criminal Appeal decision in R v Robinson [1977] Qd R 387 (Robinson) to submit adverse inferences should be drawn with respect to the credibility of Mr Smith and Mr Cradden because of, what they claimed were, “the substantial parts of the applicant’s case which have been abandoned”.

62    In Robinson, Dunn J (with whom Wanstall ACJ and Douglas J agreed) did not consider that pleadings should be “regarded as positive allegations of the truth of the facts stated, for all purposes” (at 393). Nonetheless, his Honour went on to observe that inferences may be drawn between a “discrepancy in a significant particular” (at 394) and questions asked based on instructions as follows (at 394):

By contrast, cross-examining counsel is concerned with primary facts. His instructions are as to primary facts, and it is his obligation – a strict obligation – that, if he “puts” occurrences to witnesses, he “put” them in accordance with his instructions. This being so, the instructions may be inferred from the questions. If there is a discrepancy in a significant particular (I do not mean a minor or explicable discrepancy, for whilst perfection in communication between client and legal adviser is aimed at, it is not always achieved) between questions based on instructions as inferred and the evidence of the person from whom the instructions must be taken to have come, it seems to me to be quite permissible for a judge to ask the jury to have regard to the discrepancy in evaluation the evidence.

The truth is, I think, that whilst in a strict sense questions are not evidence, questions asked (and indeed questions unasked) form part of the conduct of his client’s case by counsel. The conduct of the case is something from which the jury may be asked to draw inferences, so long as due regard is had to the requirement of fairness and the possibility of human error (especially in relation to peripheral matters). I am therefore of the opinion that Ground 6 is not made out.

63    Having dealt with these evidentiary matters, I now turn to the various provisions of the FW Act which the Commissioner claimed the respondents contravened. First, s 340 provides:

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

(a)    because the other person:

(i)    …

(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

...

64    The expression “workplace right” which appears in s 340 is relevantly defined in s 341 of the FW Act in the following terms:

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;

…

(k)    any other process or proceedings under a workplace law or workplace instrument.

…

65    Furthermore, the expression “adverse action” that appears in s 340 is relevantly defined in s 342 of the FW Act as follows:

(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.

…

(Emphasis added)

66    The parties agreed that two central issues fall to be determined with respect to s 340. They are as follows:

(a)    whether any action was taken at all; and

(b)    to the extent that any action was taken, whether that action had the effect of prejudicing Universal Cranes in respect of any contract for services they had.

It should be recorded that there was no dispute that at all relevant times Universal Cranes had a workplace right as defined in s 341(1).

67    The first central issue above is a question of fact. The paragraphs of the ASOC which describe the conduct of the respondent concerned relating to each of the four incidents are set out above (see the first Legacy Way incident at [20]; the second Legacy Way incident at [25]; the second Port Connect incident at [34]; and the third Port Connect incident at [42]).

68    On this aspect, it is worth noting that in Tattsbet Ltd v Morrow (2015) 233 FCR 46; [2015] FCAFC 62, Jessup J (with whom Allsop CJ and White J agreed) said (at [119]) that there is a history of many first-instance judgments of this Court where: “… it has been treated as uncontroversial that the party making an allegation that adverse action was taken ‘because’ of a particular circumstance needs to establish the existence of the circumstance as an objective fact …”. See also Fair Work Ombudsman v Australian Workers’ Union (2017) 271 IR 139; [2017] FCA 528 (Fair Work Ombudsman) at [72] per Bromberg J and the authorities there cited.

69    As to the second central issue above, to constitute prejudice for the purposes of s 342(1) item 7(c), the Commissioner must establish that there was a “prejudicial alteration” to Universal Cranes’ position. It is sufficient if that prejudicial alteration “is real and substantial rather than merely possible or hypothetical”. It will occur “even though the [person concerned] suffers no loss or infringement of a legal right” (see Qantas Airways Ltd v Australian Licensed Aircraft Engineers Association (2012) 202 FCR 244; [2012] FCAFC 63 (Qantas) at [30] and [32]).

70    The prejudice relied upon by the Commissioner is described in the ASOC for each incident: for the first Legacy Way incident see [20] above at (26); for the second Legacy Way incident see [26] above at (41) and (42); for the second Port Connect incident see [35] above at (92) and (93); and for the third Port Connect incident see [43] above at (151) and (152). In summary, it was to stop Universal Cranes from performing crane services for that project for which it had been hired to perform. For the third Port Connect incident, it was, insofar as Mr Ravbar is concerned, to stop Universal Cranes from performing work that it had been engaged to perform for that project. With respect to Mr Sutherland, it was to prevent Universal Cranes from performing the crane services for which it had been hired to perform at that project on that day and from being hired to perform crane work during the day thereafter.

71    Next, s 343 relevantly provides:

(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).

…

72    It is well-established that the expression “intent to coerce” in s 343 carries within it a requirement to establish two discrete elements. Those elements were authoritatively identified in Esso Australia Pty Ltd v Australian Workers’ Union (2016) 245 FCR 39; [2016] FCAFC 72 (Esso FC) as follows (at [174] (Buchanan J; Siopis J agreeing):

Coercion has been held to require the satisfaction of two elements: negation of choice; and, the use of unlawful, or illegitimate or unconscionable means (see the discussion in Finance Sector Union of Australia v Commonwealth Bank of Australia (2000) 106 FCR 16; Seven Network (Operations) Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (2001) 109 FCR 378 (Seven Network); Fair Work Ombudsman v National Jet Systems Pty Ltd (2012) 218 IR 436 and Victoria v Construction, Forestry, Mining and Energy Union (2013) 218 FCR 172).

73    This conclusion and the line of authorities upon which it was based do not appear to have been affected by the recent High Court judgment on appeal from that judgment (see Esso Australia Pty Ltd v Australian Workers’ Union (2017) 350 ALR 404; [2017] HCA 54 (Esso HC) at [61]–[63] (Kiefel CJ, Keane, Nettle and Edelman JJ)).

74    Accordingly, the Commissioner accepted that, in order to establish a contravention of s 343, he must establish that:

(a)    the action alleged was taken against Universal Cranes;

(b)    the action was taken for the alleged purpose;

(c)    in taking the action the respondents had an intention to coerce Universal Cranes, that is, to negate its choice; and

(d)    the action to be taken, or actually taken, was unlawful, illegitimate or unconscionable.

75    With respect to the third element above, the intent to negate choice must involve “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” (see National Tertiary Education Industry Union v Commonwealth of Australia (2002) 117 FCR 114; [2002] FCA 441 (NTEIU) at [103] per Weinberg J, quoted with approval by Buchanan and Griffiths JJ in Victoria v Construction, Forestry, Mining and Energy Union (2013) 218 FCR 172; [2013] FCAFC 160 at [75]).

76    With respect to the last two elements above, a proscribed intent to coerce is sufficient if the conduct or action concerned is, objectively assessed to be, unlawful, illegitimate or unconscionable. While it does not arise in this matter, it is therefore unnecessary for the conduct or action to actually be undertaken (Esso FC at [176], [180], [194] and [200]–[201]) and Esso HC at [61]).

77    In this matter, the intent and conduct pleaded concerning each of the four incidents was essentially the same: for the first Legacy Way incident see [22] above at (30); for the second Legacy Way incident see [27]–[29] above at (46), (48) and (50); for the second Port Connect incident see [36] and [37] above at (97) and (99); and for the third Port Connect incident see [44] and [45] above at (156) and (158). With each incident the intent pleaded is follows:

(a)    [The individual respondent concerned] intended to apply pressure to Universal Cranes by interfering with its capacity to perform work and earn income so as to force it to seek to make an enterprise agreement on the terms of the CFMEU pattern agreement;

78    And with each incident the conduct pleaded is as follows:

(b)    the exertion of the pressure was unlawful, illegitimate and/or unconscionable in that it was:

(i)    in contravention of s.340 of the FW Act;

(ii)    action which was adverse to Universal Cranes that neither [the individual respondent concerned] nor the CFMEU had any entitlement to undertake.

79    In closing submissions, the Commissioner’s counsel made it clear that the conduct described in (i) and (ii) above were advanced as alternatives.

80    The question whether a breach of s 340 could be relied upon to establish unlawfulness for the purposes of s 343 as pleaded in (b)(i) above became a point of contention at the trial. The Commissioner relied upon the decision in Qantas to claim that a contravention of s 340 had “previously been accepted to satisfy the unlawfulness element” of coercion. In Qantas the issue arose in the following context. First, the Court began by outlining how the issue had arisen before the primary judge as follows (at [80]):

The appellants argued on this appeal that there was substantial unfairness arising from the course of the correspondence which occurred after the hearing. The federal magistrate identified that coercion would only be established if the alleged action was illegal, illegitimate or unconscionable. He raised for consideration whether the action taken against Mr Murray amounted to discrimination and whether that action was unlawful, illegitimate or unconscionable. In his reasons for judgment the federal magistrate rejected discrimination as the element of unlawfulness because it had not been part of the respondent’s case at trial. The federal magistrate, however, determined that the threat of adverse action made by Mr Cawthorne in contravention of s 340 of the Act did satisfy the requirement of unlawfulness for the purposes of the s 343 claim. The appellants contended that it was unfair for the federal magistrate to raise discrimination in correspondence as a possible basis for satisfying the second element of the s 343 contravention, but not to raise the s 340 contravention as a possible basis for satisfying that element, when the latter was ultimately accepted.

(Emphasis added)

81    Then, after considering the pleadings and the manner in which the hearing had been conducted, the Court observed (at [90]):

As explained in [85] of these reasons the parties conducted the case before the federal magistrate on the basis that the element of unlawfulness or unconscionability was not a live issue in the case. Consequently, there was no unfairness to the appellants in the course taken by the federal magistrate. The factual foundation for the coercion finding overlapped the factual foundation for the finding of a contravention of s 340(1). Both depended on the respondent establishing that Mr Cawthorne threatened Mr Murray that his overseas postings would be denied unless he withdrew his claim. Hence, in explaining his reliance on the contravention of s 340(1) as satisfying the elements of unlawfulness, the federal magistrate said at [55]:

Although this was not specifically pleaded by the applicant, either in relation to 1(a) or 2(a) of the Amended Application filed on 6 August 2010, I am satisfied that the relevant acts were clearly identified in the proceedings and thoroughly litigated.

(Emphasis added)

82    The CFMEU relied upon the following obiter observations of Bromberg J in Fair Work Ombudsman (at [73]):

However, I was not referred to any cases in which that approach has been applied to ss 343 or 348. Unlike s 340(1)(a) which is concerned with “action” which may be characterised as reprisal for past conduct, ss 343 and 348 are concerned with “action” that seeks to influence future conduct. As Jessup J went on to say at [120] of Tattsbet, the jurisprudence to which his Honour referred at [119] was relevant to the application of the s 361 presumption to a s 340(1)(a) case and that different considerations may apply in a case reliant upon s 340(1)(b). Section 340(1)(b) is a new provision introduced by the FW Act, addressed at future conduct, and may have more in common with ss 343 and 348 coercion than with s 340(1)(a) adverse action.

(Emphasis added)

83    What constitutes illegitimate conduct for the purposes of [78](b)(ii) above has been considered in a number of first instance decisions. First, in Williams v Construction, Forestry, Mining and Energy Union (2009) 179 IR 441; [2009] FCA 223 (Williams), Jessup J used a “base-line of normality” to assess whether the respondents’ actions were legitimate as follows (at [109]):

Was it illegitimate for Mr Mates to seek to achieve his purpose of having Kane employ a labourer on the site by organising the workers to have themselves relocated elsewhere, thereby bringing about a stoppage of work on the site itself? He was careful to do so in a way that did not involve any obvious breach of the workers’ contracts of employment. Whether the withdrawal of labour by subcontractors (Northwest Concrete and BV Rigging) was a breach of their contracts with Kane was unclear: as matters were left in the evidence, I could not hold that it was in either case. However, the subcontractors had sent their employees to work on the site in accordance with normal commercial arrangements made by Kane and for the purpose of carrying out tasks which, at least to a significant extent, were on the critical path. It does not, in my view, require knowledge of the terms of the contracts between the subcontractors and Kane to conclude, as I do, that Kane was entitled — in a business if not a legal sense — to expect that, in the normal course, those employees would remain on site and carry out those tasks. It would, I consider, be rather odd for a court to hold that it was perfectly alright for a stranger to the relationship between the subcontractors and Kane to prevail upon the employees of the former to make a request to their employers that they be taken off site. I express these views not to suggest that they reflect anything like the actual situation on the site on 31 July 2006, but rather to establish a base-line of normality, as it were, by reference to which it should then be regarded as lying upon the respondents to establish that the situation on the site was such as to give legitimacy to Mr Mates’ actions.

(Emphasis added)

84    Jessup J returned to the issue in Esso Australia Pty Ltd v Australian Workers’ Union (2015) 253 IR 304; [2015] FCA 758 (Esso). First, his Honour concluded that the pressure the respondent applied to the applicant was sufficient “… to cause it to act otherwise than in the exercise of its own free choice. It was to cause it to agree to terms in a prospective enterprise agreement to which it would not, as a matter of choice, have agreed in the absence of that pressure” (at [174]). Having done so, his Honour concluded that pressure was illegitimate as follows (at [175]):

In my view, that application of pressure was illegitimate. In every respect, the bans and stoppages notified on 3 February 2015 involved refusals by the employees concerned to perform some aspects of their required, customary, duties pursuant to their contracts of employment. The obligation to serve lies at the heart of any employment relationship. The conclusion that it is illegitimate for an employee to refuse to serve as a means of extracting beneficial terms from his or her employer is one that will rarely be difficult to draw. On the facts of the present case, when, to use Mr Davis’s concession, the employer was in a vulnerable position, this conclusion is readily to be drawn, and I do so.

(Emphasis added)

85    Finally, I considered this issue in Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2017) 267 IR 130; [2017] FCA 157 (Carrara). The issue in that case was whether a series of actions, each of which involved the exercise of a legal right, could constitute illegitimate conduct. At [128]–[152], I considered various authorities on what constituted illegitimate conduct, including Williams and the text, Unjust Enrichment (2nd ed, Hart Publishing, 2016) by Edelman J and Bant E, and concluded (at [152]):

So, having regard to all these matters, I consider the disproportionality principle identified in Verve Energy and discussed in Unjust Enrichment provides an answer to the question I have posed above. That is, disproportionality between a lawful threat of action, or the lawful action itself, and the legitimate interest in the demand the threat, or action, supports is the appropriate legal standard to be applied to determine whether the threat of action, or actual action, is illegitimate.

(Emphasis added)

86    Next, s 354 relevantly provides:

(1)    A person must not discriminate against an employer because:

(a)    employees of the employer are covered, or not covered, by:

(i)    provisions of the National Employment Standards; or

(ii)    a particular type of workplace instrument (including a particular kind of workplace instrument within a type of workplace instrument); or

(iii)    an enterprise agreement that does, or does not, cover an employee organisation, or a particular employee organisation; or

(b)    it is proposed that employees of the employer be covered, or not be covered, by:

(i)    a particular type of workplace instrument (including a particular kind of workplace instrument within a type of workplace instrument); or

(ii)    an enterprise agreement that does, or does not, cover an employee organisation, or a particular employee organisation.

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

…

87    In order to establish a contravention of s 354, the parties agreed that the Commissioner must prove the following elements:

(a)    that the employees of Universal Cranes were covered by the relevant type of industrial instrument described in s 354(1)(a)(iii); and

(b)    that the respondents discriminated against Universal Cranes.

88    What constitutes discriminating against a person for the purposes of the second element above was considered by a Full Court in Australian Building and Construction Commissioner v McConnell Dowell Constructors (Aust) Pty Ltd (2012) 203 FCR 345; [2012] FCAFC 93 (McConnell Dowell), albeit with respect to a different, but analogous, provision of the Building and Construction Industry Improvement Act 2005 (Cth) (s 45). First, on that question, Buchanan J reviewed the relevant authorities (at [10]–[25]) and concluded (at [27]):

In the light of these various indications in judgments of the High Court over a long period of time about what is involved in the notion of conduct which “discriminates against” an entity or person, and in the absence of any legislative statement in the Act about what will constitute such conduct for the purposes of the Act, in my view the conclusion should be drawn that some adversity must be identified in order to establish that the prohibition in s 45 of the Act has been infringed. That is clearly the view which was taken by the trial judge. In my respectful opinion that approach was the correct one.

(Emphasis added)

89    Next, Flick J conducted a similar exercise and expressed his conclusions in a series of passages as follows (at [69]–[73]):

69    … it is considered that the natural and ordinary meaning of the phrase “discriminate against” is that an “adverse distinction” is made between persons …

…

71    … Notwithstanding the width of language otherwise embraced by s 45(1)(a), it is concluded that the phrase “discriminate against” only identifies that conduct which is taken “against” an employer and which operates adversely to his interest …

…

73    … the phrase “discriminate against” is a phrase which has been used in a variety of contexts as requiring an element akin to “adverse” action … of a persons being treated “unequally and disadvantageously” … [“]imposes some special burden or disability on them” … as simply treating “equally things that are unequal” … Each of the conclusions reached is obviously dictated by the legislative context in which the terms in question were employed.

(Emphasis added)

90    Finally, on the same question, Katzmann J concluded (at [111]):

Discrimination may be positive or negative. Section 45 is concerned with negative or adverse discrimination. Differential treatment is insufficient to establish that there has been adverse discrimination. As positive discrimination connotes conferring a favour, advantage or benefit, negative discrimination carries with it the imposition of a detriment or disadvantage: cf Street v Queensland Bar Association (1989) 168 CLR 461 at 506 per Brennan J. Where there is no detriment or disadvantage, or no favour or benefit has been withheld or withdrawn, there will be no adverse discrimination. In other words, there must be adverse consequences from the differential treatment. In my view, that was all the primary judge was saying. Contrary to the Commissioner’s submission, his Honour did not require that damage, including financial loss, be proved. As McConnell Dowell submitted, the reference in his Honour’s reasons to the absence of any financial implications for HLS was merely illustrative.

(Emphasis added)

See also Director, Fair Work Building Industry Inspectorate v ADCO Constructions Pty Ltd (No 2) [2016] FCA 1463 per Collier J at [103].

91    Relying upon these authorities, the Commissioner contended that an action which has an “adverse impact or detriment” for a person constitutes discriminating against that person and he provided the following examples:

(a)    not being able to perform assembly work at the location most convenient to perform it (McConnell Dowell at [28] to [30]);

(b)    incurring expenses (McConnell Dowell at [28] to [30]);

(c)    actions that inflict consequences (Cozadinos v Construction, Forestry, Mining and Energy Union [2012] FCA 46 at [93]).

92    The Commissioner also submitted that the “practicality of actual consequences [we]re relevant to the question of whether discrimination ha[d] occurred” and that it was insufficient if “a person [wa]s left with less than they previously had”.

93    Section 550 of the FW Act was relied upon by the Commissioner to fix liability for any contraventions committed by Mr Toyer and/or Mr Sutherland on Mr Ravbar and/or Mr Close. That section relevantly provides:

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

Note:    If a person (the involved person) is taken under this subsection to have contravened a civil remedy provision, the involved person’s contravention may be a serious contravention (see subsection 557A(5A)). Serious contraventions attract higher maximum penalties (see subsection 539(2)).

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

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

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

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

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

94    Bearing upon the operation of this provision, in Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2017] FCAFC 50, the Full Court observed that “knowing involvement” within the terms of s 550 meant that the respondents (at [59]):

… must have intentionally participated in the contravening conduct, with actual knowledge of the essential facts which constituted the contravention: see Yorke v Lucas (1985) 158 CLR 661 at 667 …

95    The Commissioner also relied on ss 363 and 793 to fix liability on the CFMEU for any contravening conduct of the four individual respondents. Those sections relevantly provide:

363    Actions of industrial associations

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

…

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

…

…

(3)    If, for the purposes of this Part, it is necessary to establish the state of mind of an industrial association in relation to particular action, it is enough to show:

(a)    that the action was taken by a person, or a group, referred to in paragraphs (1)(a) to (e); and

(b)    that the person, or a person in the group, had that state of mind.

(4)    Subsections (1) to (3) have effect despite subsections 793(1) and (2) (which deal with liabilities of bodies corporate).

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.

96    In Director of the Fair Work Building Industry Inspectorate v Robinson (2016) 241 FCR 338; [2016] FCA 525, Charlesworth J made the following observations about the operation of s 793 (at [48]–[50]):

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.

49    Two further things should be said about s 793 of the FW Act. The first is that s 793 does not exhaustively prescribe the legal means by which the state of mind held by, or the conduct engaged in by, a body corporate may be ascertained. Its purpose is to provide for an expanded range of persons whose conduct and state of mind might be ascribed to a body corporate than that which exists at common law, whilst at the same time preserving the common law doctrines: Walplan Pty Ltd v Wallace (1985) 8 FCR 27 at 35-37; Tesco Supermarkets Ltd v Nattrass [1972] AC 153.

50    The second thing to be said about s 793 arises from my earlier observation that it does not directly operate to fix liability for a contravention on a body corporate; it is not to be regarded as a codification of the doctrine of vicarious liability: cf Trade Practices Commission v Tubemakers of Australia Ltd (No 2) (1983) 76 FLR 455 at 474-475; 47 ALR 719 at 739 (Toohey J). The mere fact that two employees of the CFMEU have each contravened the FW Act does not of itself, demand the conclusion that the CFMEU is liable for two contraventions.

(Emphasis added)

97    To prove his case against the respondents, the Commissioner also relied on the rebuttable presumption contained in s 361 of the FW Act. That section relevantly provides:

(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.

    …

98    The interaction between this provision and sections such as 340 and 343 was examined most recently in ABCC v Hall. There, the Full Court began by summarising how s 361 was activated (at [13] and [15]) as follows:

13    Stated compendiously, s 361(1) places an onus or burden on a person involved in a proceeding relating to a contravention of Part 3-1 of the FWA to “prove otherwise” than that he or she took the contravening action for the particular reason, or with the particular intent, alleged in the applicant’s application. The consequence of a failure to discharge this burden is that it is presumed against the person concerned that the contravening action was taken for that particular reason or with that particular intent. Before this presumption operates, however, two pre-conditions must be met. First, under s 361(1)(a) the particular reason or the particular intent for the contravening action must be alleged in the application. It is with respect to that alleged reason or that alleged intent that the person concerned must prove otherwise …

15    The second pre-condition which must exist for the presumption in s 361(1) to operate is of equal importance in this matter. It is the requirement in s 361(1)(b) that “taking that action for that reason or with that intent would constitute a contravention of this Part”. This pre-condition therefore requires more than an allegation with respect to an action, reason or intent. Additionally, it requires that taking the alleged action, for the alleged reason or with the alleged intent (or both), “would constitute a contravention of that Part”.

(Emphasis in original)

99    The Court went on to remark that (at [24]):

… Because these three provisions [namely ss 340, 343 and 355] are in Part 3-1 of the FWA, ss 361 and 360 apply to the particular reason or purpose (s 360) for which the action is taken or threatened to be taken under ss 340, 343 and 355 and to the particular intent (s 361) with which the coercive action is taken under ss 343 and 355. Justice Bromberg correctly highlighted this composite effect of the operation of s 361 with respect [to] the existence of both the intent and reason or purpose components of s 343 in Construction, Forestry, Mining and Energy Union v McCorkell Constructions Pty Ltd (No 2) (2013) 232 IR 290 at 343; [2013] FCA 446 at [230]).

100    There is no issue that the two pre-conditions mentioned in ABCC v Hall above have been met in this matter. However, even though s 361 has been duly activated by the Commissioner’s pleading, that does not relieve him “… from proving on the balance of probabilities each of the ingredients of the contravention. It enables the allegation to stand as sufficient proof of the fact unless the employer proves otherwise” (see Davids Distribution Pty Ltd v National Union of Workers (1999) 91 FCR 463; [1999] FCA 1108 at [109] (per Wilcox and Cooper JJ)). See also ABCC v Hall at [17].

101    Furthermore, the question whether the respondents have “prove[d] otherwise” falls to be determined at the end of the trial and depends on “the assessment of all of the facts by the trier of fact, including, most importantly in the conventional case, his or her assessment of the evidence given by the decision-maker acting on behalf of the employer” (see Construction, Forestry, Mining and Energy Union v Anglo Coal (Dawson Services) Pty Ltd (2015) 238 FCR 273; [2015] FCAFC 157 at [27]–[28] per Jessup J (with whom Rangiah J agreed)). See also ABCC v Hall at [18]. Consequently, if, in this matter, the Commissioner has failed to establish one of the elements of a contravention of ss 340, 343 or 354, there will be no necessity to consider whether one or more of the respondents has discharged his onus under s 361 to prove otherwise with respect to that particular alleged contravention.

102    The task a respondent has in discharging this onus, and the related effect of s 360 of the FW Act, was also examined by the Full Court in ABCC v Hall. While the following observations were specifically directed to s 340, they apply equally to ss 343 and 354. The Court said:

100    … If an applicant, on the whole of the evidence, establishes, to the Briginshaw standard, that the elements of a particular contravention (other than the reasons for the respondent taking action) exist and if the respondent wishes to avoid an adverse finding in respect of the alleged contravention the respondent will bear the onus to establish, on the balance of probabilities, that he or she had not acted for any proscribed reason: see Board of Bendigo Regional Institute of Technical and Further Education v Barclay (No 1) (2012) 248 CLR 500 at 512-513, 524; [2012] HCA 32 at [31]-[33] and [65] (French CJ and Crennan J); RailPro Services Pty Ltd v Flavel (2015) 242 FCR 424 at 447-450; [2015] FCA 504 at [80]-[93] (Perry J). As has already been noted above (at [14]), s 360 contemplates that there might be multiple reasons for a respondent taking action to the prejudice of the applicant. A reason will not be proscribed unless it is “a substantial and operative factor” in the respondents’ reasons for taking the adverse action: see Barclay (No 1) at 523 [62] (French CJ and Crennan J) and 535 [104] (Gummow and Hayne JJ).

101    In this context the question “thrown up by s 340 is not one concerned with causation but, rather, the subjective reasons for action of the decision-maker”: Construction, Forestry, Mining and Energy Union v Endeavour Coal Pty Ltd (2015) 231 FCR 150 at 173; [2015] FCAFC 76 at [91] (Perram J). What is involved is not an exercise in characterisation; the Court is required to make a decision about the internal reasoning process of an alleged contravener: Milardovic v Vemco Services Pty Ltd (Administrators Appointed) [2016] FCA 19 at [60] (Mortimer J).

103    Finally, it should be noted that, while ss 340, 343 and 354 all fall within the same part of the FW Act as s 361 (Part 3-1), and therefore that section applies to them, ss 550 and 793 do not.

THE WITNESSES

General observations

104    Before summarising the evidence relating to the four incidents and a number of surrounding or contextual issues, it is convenient to make some general and specific observations about the witnesses who gave evidence at the trial. There is a number of factors which have caused me to doubt the accuracy of some parts of that evidence. The first of those factors is the most obvious: the events in question occurred approximately five years before the trial. Accordingly, most of the witnesses quite properly acknowledged that this affected their ability to recall the details of those events. Mr Atkinson was a notable exception to these acknowledgments. I will return to this matter when I come to consider his evidence about the two Legacy Way incidents later in these reasons. Secondly, and relatedly, most, if not all, of the central witnesses to those events agreed they were very busy people at that time. That was particularly so with Mr Smith from Universal Cranes and Mr Ravbar and Mr Close from the CFMEU. 2012 was variously described by witnesses as “an extremely … difficult and busy year”, a “massive year”, a “robust negotiation period” involving “[h]undreds” of expired enterprise agreements “being negotiated”.

105    Thirdly, to varying degrees, the central witnesses displayed, what might be regarded as, a natural tendency to assert positions which coincided with their personal vested interests. I consider this factor applied to, in the order in which they were called to give evidence, Mr Cradden, Mr Smith, Mr Toyer, Mr Close and Mr Ravbar. Conversely, this factor did not generally apply to those witnesses who were devoid of such personal vested interests such as Mr Young from the Transcity Joint Venture (the Legacy Way project) and Mr Zoller from BMD Seymour Whyte Joint Venture (the Port Connect project). Fourthly, with the exception of some emails and similar documents which I will come to later in these reasons, there were few contemporaneous records of the events.

106    Fifthly, by the time of the trial, most of the central witnesses had already given evidence at the Royal Commission into Trade Union Governance and Corruption and had recounted the events to various people in preparing to give that evidence. This was likely, in my view, to have led to a blurring between what the witness actually recalled of the main events and what they said they recalled of them in that earlier evidence and beforehand. Moreover, this factor also resulted in some witnesses giving evidence which contradicted what they had said on those earlier occasions. Accordingly, I will turn to various aspects of his evidence in the next section of these reasons below.

107    Unsurprisingly, therefore, few of the witnesses demonstrated a good recall of the details of the events and contentious matters at the centre of this proceeding. That was particularly so with respect to matters such as the timing, frequency and sequence of events, and to the details of who said and did what on particular occasions. Because of all these factors, I have approached my assessment of the evidence given at the trial by placing general reliance on a number of familiar lodestars.

108    First, I have placed a deal of weight on any reliable contemporaneous record relating to a particular event, for instance, an email or file note. Secondly, I have placed weight on any evidence which could fairly be taken to be an admission against a witness’ interests. For example, Mr Ravbar agreeing that, during the 23 August 2012 meeting, he told Mr Smith to “stop … playing games”. Thirdly, I have placed weight on any evidence that is generally consistent with the evidence of other witnesses on a particular event or matter, or that is consistent with the established chronology. For example, the evidence that Mr Close first learnt about the existence of the 2012 EA in mid to late July. This is consistent with the established fact that the employee vote on that enterprise agreement took place on 9 July 2012 and Mr Close acknowledged he was in contact with CFMEU members who were employees of Universal Cranes.

Mr Cradden’s evidence

109    I now turn to make some specific observations about the evidence given by particular witnesses, commencing with Mr Cradden. In 2012, Mr Cradden was employed by the CFMEU as the civil construction organiser in South East Queensland. He was, at that time, the sole organiser responsible for civil construction. In his evidence, he claimed he was one of the most experienced of all the organisers then employed by the CFMEU. In his role as civil construction organiser, he was responsible for the two civil projects where the four incidents at the centre of this proceeding allegedly occurred: the Legacy Way project and the Port Connect project. He described his duties as including: visits to those project sites; ensuring the amenities on those sites were appropriate; attending to any workplace health and safety issues that arose; signing up new members; and encouraging any subcontractors on those sites to enter into the CFMEU’s model agreement.

110    Mr Cradden said Mr Neiland was the coordinator to whom he reported and Mr Close took over that role from Mr Neiland at some point during 2012. He said he did not regard Mr Neiland as a very good coordinator and consequently he had “to show some initiative and make some decisions of [his] own”.

111    Mr Cradden left the CFMEU and took up employment as a civil construction organiser with the Australian Workers’ Union (AWU) in January 2015. That is where he was employed at the time of the trial.

112    Soon after Mr Cradden commenced his employment with the AWU, his new employer made an application to the Fair Work Commission under s 512 of the FW Act for him to be issued an entry permit under Part 3-4 of the FW Act. Mr Cradden agreed that he needed such a permit to effectively perform his role as an AWU organiser. In due course, a delegate of the Fair Work Commission decided to issue a permit to Mr Cradden. However, in his letter attaching that permit, the delegate made the following point:

I understand that Mr Cradden is listed as a respondent in proceedings in the Federal Court of Australia in Director of the Fair Work Building Industry Inspectorate v Cradden, Myles, O’Brien, Davis, Cummins & CFMEU (QUD98/2014), which is due to commence for trial in June 2015. I note that this matter was not disclosed in the declarations accompanying the application. Although Mr Cradden has not been convicted of any offence against an industrial law, full and frank disclosure is always recommended to provide thoroughness, particularly if an adverse finding is pending.

113    On 1 June 2015, acting on Mr Cradden’s instructions, a lawyer wrote to Mr Alfred, an officer employed by Fair Work Building and Construction (FWBC) and sought to obtain immunity from prosecution for Mr Cradden in exchange for certain information. The details of Mr Cradden’s instructions to his lawyer about that information were set out in his lawyer’s letter as follows:

I, Mr Paul Cradden, am aware of activities pertaining to Universal Cranes and am willing to elaborate further on the following key issues in exchange for a promise of immunity against prosecution in relation to all matters concerning Universal Cranes (UC).

1.    CFMEU’s involvement with UC at certain construction sites in Brisbane Specifically:

a.    The ‘ban’ issue relating to UC;

b.    CFMEU exerting pressure on sub-contractors to use alternative crane hire companies other than UC;

c.    CFMEU officials entering job sites and creating a block to prevent UC from operating.

114    On 10 June 2015, a lawyer from FWBC, Ms Rakatovski, responded as follows:

While your correspondence of 1 June 2015 provides a base on which to start drafting the requisite documents, as discussed, we would require some further information in order to satisfy an AAT member that the exercise of the power is justified and the examination notice issued.

115    After some delay, Mr Cradden’s lawyer responded on 26 June and offered, in addition to the three items in the 1 June letter above, to provide information on:

d.    The direct involvement of senior CFMEU officials in orchestrating and directing the action(s) against UC during the above periods.

116    When this chain of correspondence was put to Mr Cradden in cross-examination at the trial, the following exchange occurred:

You got an indemnity, didn’t you?---I did.

That’s the only reason you’re sitting here. And in this proceeding, there’s a whole lot of officials being prosecuted but you’re not being prosecuted, are you, Mr Cradden?---The reason why I’m sitting here is because I was subpoenaed to be here.

Mr Cradden, were you subpoenaed when you asked your solicitor on 1 June of 2015 to write to Mr Alfred? Were you doing that under any force?---No.

You were doing that to save your own skin, weren’t you, Mr Cradden?---No. Not to save my own skin, no.

You were doing it to get an indemnity?---No.

Well, but your solicitor says:

Our client has instructed that he wishes to seek your assistance in obtaining immunity from prosecution in relation to the above matter.

?---Yes. Because I was going to be prosecuted.

All right. I see. So you knew you were going to be prosecuted and you wanted to offer something up so that you would get an immunity and you would not be prosecuted?---Why should I get prosecuted again for doing what I’m told?

117    It follows that the evidence Mr Cradden gave at the trial was given under the indemnity he procured by the process briefly described above.

118    This factor alone would be sufficient to require some caution when assessing Mr Cradden’s evidence to ensure that it was not affected by his obvious self-interest. However, there was also a number of other aspects of his evidence that reinforced this need for caution.

119    As with most of the other witnesses, Mr Cradden had a poor recall of the details of the events and conversations that occurred in 2012. In cross-examination he willingly agreed that it was “very difficult” for him to accurately recall what occurred at that time, including “exactly who said what” during a meeting or conversation. For example, he agreed in cross-examination that he could not recall who out of Mr Ravbar and Mr Close had given him the directions prior to each of the four incidents at the centre of this matter. However, he later qualified this evidence by saying that he did recall telephoning Mr Close during one of the Legacy Way incidents because: “I was told if I went on to the jobs I – I was going to be arrested for trespassing”.

120    He also agreed in cross-examination that the statements he made in his interview with representatives of FWBC on 11 August 2015 (the 11 August 2015 interview) about the events of 2012 were likely to be more accurate than the evidence he had given in court at the trial. Notably, one of those statements was inconsistent with his evidence at trial that he remembered there being particular discussions about Universal Cranes at a CFMEU organisers’ meeting in 2012.

121    If it were not for a more direct and significant contradiction that arose from the 11 August 2015 interview mentioned above, those failings of memory and inconsistencies may be considered to be markers of a reliable witness, one making obvious concessions and not advancing dubious claims of memory recall. However, that contradiction was in a different category because, among other things, it led to the late abandonment of one of the sets of alleged contraventions pleaded in the Commissioner’s ASOC, namely those concerning the first Port Connect incident (see at [54](b) above). I alluded to this aspect earlier in these reasons (see at [55] above). It has led me to be particularly cautious before accepting Mr Cradden’s evidence of the central events of 2012 unless it is supported by, or is relevantly consistent with, some other reliable evidence. I should, however, make it clear that this conclusion is not founded on drawing an adverse inference of the kind advanced by the union relying upon Robinson (see at [61]–[62] above). That is so for two reasons. First, the contradiction at the centre of the reasoning in Robinson did not concern allegations made in pleadings, but rather what could be inferred from occurrences “put” to witnesses by cross-examining counsel in a criminal trial. None of these circumstances has any analogy with respect to the first Port Connect incident in this matter. Secondly, allegations in a pleading are not to be treated as “… positive allegations of the truth of the facts therein, for all purposes, but only as statements of the case of the party, to be admitted or denied by the opposite side, and if denied to be proved, and ultimately submitted for judicial decision” (see Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70 at 85).

122    This contradiction emerged in the following way. In examination-in-chief, Mr Cradden said that Mr Ravbar had instructed him to go to the Port Connect site “because [Universal Cranes] wouldn’t sign an EBA. So we had to remove them.” In cross-examination, he changed this evidence to the extent that he agreed with statements he had made earlier in his evidence that it was either Mr Ravbar, or Mr Close, who told him to go to the Port Connect site on that first occasion; however, he could “not be certain which one it was”.

123    He was then taken to a question he was asked and an answer he had given during the 11 August 2015 interview, as follows:

The first occasion that you went there and spoke to Mr Zoller, I think you said – explained to him that there were issues with Universal [Cranes] and they had to use another crane company. Did you go there that day of your own accord or did someone ask you to go there?

No. I would have been going there doing site visits, and went on my own accord, yes.

124    Mr Cradden agreed he had given that answer in the 11 August 2015 interview and he then agreed that he went to the Port Connect project site on the first occasion of his own accord. He added that: “I went several times on my own accord.”

125    Finally, in re-examination, Mr Cradden sought to re-implicate Mr Ravbar and Mr Close in this first Port Connect incident by claiming that he had raised the issues with Mr Zoller about Universal Cranes being on the site during that visit “because we were having issues with Universal [Cranes] not signing an EBA” and he thought it was only a matter of time before Mr Ravbar or Mr Close gave him a direction to remove Universal Cranes “the same as [he was directed] on Legacy Way”.

Mr Smith’s evidence

126    Mr Smith is a civil engineer by profession. He was born and raised in New Zealand. As has already been noted above, he purchased Universal Cranes in October 2003. At that time, he said it had about 10 employees. From that point forward, he built the business so that by 2012 he was supplying cranes to a range of industries throughout Queensland and in other parts of Australia. Mr Smith said that Universal Cranes “… had gone through a period of rapid growth from 2004 till about 2010 or ’11. And then since that time, it ha[d] flattened off.” By 2012, he said that Universal Cranes employed around 100 to 120 people.

127    Mr Smith said he had almost 40 years’ experience as a business person and employer. He said he was active in the industry body representing the crane industry and became the president of the then Crane Industry Association of Queensland (now known as the Queensland Branch of the Crane Industry Association of Australia) in 2012. In that capacity, he said the matters he dealt with included any industrial relations issues that affected the industry. He agreed that in 2012 he had expressed opposition to the Building Employment Redundancy Trust (BERT) fund operated by the CFMEU. I interpose to note that the expression “BERT fund” was used in evidence by various witnesses to refer to a number of separate funds or schemes including: a sick leave fund; a welfare fund; a redundancy scheme; a severance scheme; and a superannuation fund. Some of these individual funds or schemes were also referred to by other acronyms such as BIRT, CIPS (Construction Income Protection Scheme) and BEWT (Building Employees Welfare Trust). However, for convenience, unless the context requires otherwise, or unless I am quoting evidence using these different descriptors or acronyms, I will generally use the expression “BERT fund” in these reasons to encapsulate all these funds and schemes.

128    Mr Smith appeared to be knowledgeable in the industrial issues affecting his business. For example, in his evidence he described the changes that occurred in the industrial relations system in Australia before and after the 2007 federal election as follows:

The election had been lost on account of destroying the WorkChoices and the individual contracts, and so it seemed to me that it was in the best interests of our business to change it to a collective agreement.

129    In cross-examination, he agreed he was a busy man in 2012 and that he had many telephone calls, meetings and conversations during an ordinary day. In examination-in-chief, he said he could not remember “which thing was said [to Mr Close] in which phone call” in 2012. Consistent with this evidence, he also said in cross-examination that it was very hard to remember any particular telephone calls or meetings he had in that year, or who said what during them. Nonetheless, he claimed some statements “[we]re very clear in [his] mind”.

130    Mr Smith was in the witness box for almost one and a half days. In the earlier stages of his evidence, he appeared to carefully consider the questions asked of him and to give responsive and direct answers. However, as his evidence continued, and, in particular, as his cross-examination progressed into the second day, he became increasingly argumentative and non-responsive. Perhaps unsurprisingly, he appeared to have a firm ideological position with respect to industrial matters and a somewhat cynical view of the role of industrial unions and, in particular, the funds maintained by the CFMEU, such as the BERT fund. According to Mr Ravbar, Mr Smith had described those funds as union “slush funds”. Mr Smith’s account of the events of 2012 was, in my view, affected by this cynicism. That was particularly so on the issue, which I will discuss later in these reasons, whether his company’s exclusion from particular construction sites in 2012 stemmed from the enforcement of a clause in the principal contractors’ enterprise agreement for those sites known as “jump up clauses” or “JUCs”, or was the result of a deliberate unlawful or illegitimate campaign orchestrated by the CFMEU directed to banning him from those sites. Accordingly, I have taken this attitude into account in assessing Mr Smith’s evidence about the events of 2012.

Mr Toyer’s evidence

131    Mr Toyer began work with the CFMEU as an organiser in 2011, initially in the construction and general area. In about mid 2012, he moved to the civil projects area. He said that when he first commenced work in that area, “I worked with Paul [Cradden] for the first three or four weeks to learn the ropes …”. Thereafter, he said “… we would meet from time to time and help each other out when the need arose”.

132    By the time of the trial, Mr Toyer was no longer employed by the CFMEU. He left the CFMEU and took up employment as a safety advisor at Hutchinson Builders in May 2017.

133    Mr Toyer was present during the second Legacy Way and the second Port Connect incidents. He was also present outside Universal Cranes’ yard before the third Port Connect incident, but he did not attend the Port Connect project site during that incident. As for the second Legacy Way incident, in both examination-in-chief and cross-examination he said he could not recall much of the details of that incident. With respect to the second Port Connect incident, his recollection was assisted by an occupational health and safety (OH&S) Complaint Form that he prepared at about the time of his visit to that site on the day of that incident. However, he said he still could not recall many details of that incident. While he attended the Universal Cranes yard on the morning of the third Port Connect incident, there is no evidence that he was present at the Port Connect project site during that incident. Instead, he said he followed a crane that left the Universal Cranes yard and travelled to Ipswich. There, he said, he spoke to the driver of the crane about joining the CFMEU.

134    While Mr Toyer was no longer employed with the CFMEU when he gave his evidence, he had an obvious self-interest as a respondent in avoiding a finding that he had contravened the FW Act. That self-interest, in my view, caused him to resort to “I don’t recall” answers when being asked about contentious subjects. In assessing his evidence, I have therefore taken this feature of it into account.

Mr Close’s evidence

135    Mr Close commenced work as an organiser with the CFMEU in 1994 and became the Assistant State Secretary in 2004. He left the CFMEU in June 2014 to become a building industry coordinator with the BERT fund.

136    Mr Close described 2012 as “an extremely … difficult and busy year”. He said a number of enterprise agreements were past their nominal expiry dates and the CFMEU was seeking, for the first time, to include JUCs in its model agreement. He said the priority was to have the major building companies and as many subcontractors as possible sign up to the CFMEU model agreement. He said it: “… was a huge year … [a] massive year … There was litigation. There was protection action. There were stoppages. There was picket lines. There was all sorts of things happening in 2012. It was a very unique year … Everything was coming together” (errors in original).

137    While Mr Close, like Mr Toyer, is no longer employed with the CFMEU, he had the same obvious self-interest as a respondent in avoiding a finding that he had contravened the FW Act. Furthermore, Mr Close did not attempt, in his evidence, to conceal his animosity towards Mr Cradden and Mr Smith. For example, when he was asked in cross-examination if he knew Mr Cradden in 2012, he responded “unfortunately”. He also made a number of disparaging remarks about Mr Smith in his evidence. For example, in cross-examination, he said Mr Smith was “not a liked man”. He said that was the topic of discussion among the organisers. He said they would ask: “‘How are you going with that idiot? How are you going with that dickhead’ … so the guys would ask at the meeting, ‘How are you going with Albert?’ ‘No good. He has still got his ideology. He is not interested in our stuff.’”

138    Unsurprisingly, Mr Close and Mr Smith had opposing views about industrial matters and the role of industrial unions in particular. In his evidence, Mr Close said Mr Smith “was not very union friendly”. Of the employees Mr Smith transferred to Australia from his companies in New Zealand, Mr Close said that he tried to recruit them as members of the CFMEU, but they “[w]eren’t interested. I believe Albert was telling them not to join at the time. And it just went stale and – kind of give up”. He described Mr Smith as “doing his own thing industrially” and pursuing his “ideological line”. He was dismissive of the importance of having a CFMEU model agreement with Mr Smith, saying he did not intend to “die in the ditch” over that issue.

139    These features of Mr Close’s evidence have led me to have concerns, to which I will come in due course, about its reliability, particularly where it involved his denials of wrongdoing or interactions with Mr Cradden and Mr Smith.

Mr Ravbar’s evidence

140    Mr Ravbar started work with the CFMEU in February 1993 as an industrial officer. He became the Secretary of the Queensland and Northern Territory Branch of the CFMEU in 2007, a position he continued to hold at the time of the trial. This continuing association with the fifth respondent compounds the obvious self-interest I have referred to above associated with his position as the first respondent in this proceeding.

141    Mr Ravbar agreed that in 2012 his role was “a busy one … with a range of important responsibilities”. He described that role in the following terms:

My main responsibility was to oversee the finance, the administration and the governance of the organisation, for me to report to the various executive and management structures of the union, which was the state executive … the other one was the state management council or the SMC. I was also on a number of boards in regards for different funds and some of them government boards …

142    In general, Mr Ravbar tended in his evidence to be verbose and discursive. Consequently, on many occasions, I found it difficult to discern what he meant in his answers to questions. Nonetheless, I consider this was more a result of a personal mannerism than a deliberate attitude of non-responsiveness. Mr Ravbar, too, made a number of adverse comments in his evidence about Mr Smith. For example, while he said he was aware that Mr Smith was the President of the Crane Industry Owners’ Association in 2012, and he agreed he was well-known in the crane industry, he claimed he was “divisive” and said “… there was (sic – were) big resignations by a number of companies who thought Albert was a bit of a fruit loop.”

143    Mr Ravbar expressed similar views to Mr Close’s about Mr Smith’s “anti-union” stance. He said he thought Mr Smith was an “unusual character”. He claimed he had publicly opposed union industry funds such as the BERT fund and had described them as union “slush funds”. Similar to Mr Close, he said Mr Smith had a “history of doing his own thing industrially”. These features of Mr Ravbar’s evidence have led me to have similar concerns to those expressed above with respect to Mr Close’s evidence, particularly where it involved his denials of misconduct or interactions with Mr Smith.

Mr Ingham’s evidence

144    In 2012, Mr Ingham was, and still is, as noted elsewhere, an Assistant Secretary of the Queensland and Northern Territory Branch of the CFMEU. Because he was responsible for regional Queensland, which he said was generally taken to be all of Queensland north of the Sunshine Coast, he said he was travelling a lot at that time. He said he was away from his home in Brisbane “[n]o more than half the month”. He said that, at that time, each of Mr Ravbar, Mr Close and himself “were … busy people with significant industrial responsibilities”. Mr Ingham appeared to give his evidence in a detached and balanced manner. I did not detect the personal animosity referred to above with respect to Mr Smith. Mr Ingham is also not a respondent in this proceeding and therefore does not have the same kind of personal self-interest I have mentioned above. In this respect, it should be noted that Mr Ingham said in evidence that he had no involvement with the Legacy Way project or any of the incidents that allegedly occurred there, nor did he have any involvement with the Port Connect project or any of the incidents that allegedly occurred there.

Mr Sutherland

145    Mr Sutherland did not give evidence at the trial despite the fact he was present during the third Port Connect incident. Because of this absence, as I have mentioned above (see at [58]), the Commissioner sought to have a Jones v Dunkel inference drawn. I will return to this aspect later in these reasons. As has also been noted elsewhere, in 2012, Mr Sutherland was employed by the CFMEU as an organiser. Mr Ravbar said that in mid 2013 he was appointed as the crane coordinator.

THE CONTEXTUAL ISSUES RELATING TO THE FOUR INCIDENTS

The contextual issues relating to the two Legacy Way incidents

146    Next, I turn to consider the contextual issues that arise with respect to the four incidents, commencing with the first Legacy Way incident. I will begin my consideration of that incident by considering the pleadings relating to it. In doing so, I will, as much as possible, avoid repeating the pleadings as set out earlier in these reasons (see at [20] and following). Insofar as it gives rise to any alleged contraventions of the FW Act, the first Legacy Way incident only concerns Mr Close. As pleaded at [22] and [23] of the ASOC, the conduct giving rise to his alleged contraventions with respect to that incident was as follows:

22.    In or about mid 2012 Mr Cradden stated to Mr Close to the effect that he had seen a Universal Cranes crane operating at the Legacy Way Project.

23.    Following the conversation pleaded in paragraph 22 above, Mr Close directed Mr Cradden to attend at the Legacy Way Project to stop the Universal Cranes crane from working, by stating words to the effect of “We need that crane off the job, we need it to stop work” and “You had better go over there and stop the crane from working or get it removed” (“the First Direction”).

It can be seen that the contravening conduct described in these paragraphs is centred on “the first direction”.

147    The alleged consequence of this direction was described at [25] of the ASOC in the following terms:

Mr Cradden attended at the Legacy Way Project and stated to the site supervisor, Geoff Young, by reference to the Universal Cranes crawler crane, to the effect that:

(a)    “You need to get this crane off this job”;

(b)    “Well it needs to go. Universal Cranes is a ‘non-EBA company’”.

148    The alleged rationale for the first direction is pleaded at [24] of the ASOC (see at [20] above). In summary, it was to force Universal Cranes to enter into a CFMEU model agreement in circumstances where it was instead seeking to make a non-union enterprise agreement with its employees. As is recorded earlier in these reasons, all of these allegations were denied or not admitted by the respondents in their amended defence.

149    Various aspects of the factual context to this rationale are pleaded at [11]–[13] of the ASOC as follows:

11.    The Universal Cranes Pty Ltd Employee Collective Agreement was registered with and approved by the Australian Government Workplace Authority in July 2008.

12.    The Universal Cranes Pty Ltd Employee Collective Agreement was effective until mid-2012.

13.    In or about mid 2012:

(a)    Universal Cranes did not have an enterprise agreement under the FW Act that covered the CFMEU;

(b)    each of Mr Ravbar and Mr Close wanted Universal Cranes to seek to enter into an enterprise agreement under the FW Act that covered the CFMEU and contained terms acceptable to the CFMEU (“the CFMEU pattern agreement”).

In their amended defence, the respondents admitted the allegations in [11], [12] and [13](a) above and denied or did not admit those in [13](b).

150    As well, the broader industrial context to this alleged rationale is pleaded at [14]–[18] of the ASOC, as including the discussions that were alleged to have occurred at CFMEU organisers’ meetings in 2012 as follows:

14.    During 2012, meetings of CFMEU organisers were held at least once per month at the Bowen Hills office of the CFMEU (“Organisers’ Meeting”).

15.    The Organisers’ Meetings were usually conducted by Mr Ravbar, who would lead the discussion at the said meetings.

16.    Mr Close and Mr Jade Ingham, Assistant Secretary of the CFMEU would usually also attend the Organisers’ Meetings and in addition to Mr Ravbar, lead the discussion.

17.    During the said meetings, Mr Ravbar and Mr Close would, as part of a standing agenda item:

(a)    state to the effect to organisers present that building contractors needed to have a CFMEU pattern agreement;

(b)    identify building contractors that were not agreeable to entering into a CFMEU pattern agreement;

(c)    coordinate and organise attempts by organisers who were responsible for particular building projects to stop building contractors who were not agreeable to entering into a CFMEU pattern agreement from performing work on those projects;

(d)    receive and discuss feedback from organisers on their attempts to stop the work of building contractors who were not agreeable to entering into a CFMEU pattern agreement;

(e)    make statements that were critical of any failure by an organiser to effectively disrupt such building contractors from performing work.

…

18.    In or about mid 2012 Universal Cranes was negotiating with its employees on an enterprise agreement that was on terms other than those of the CFMEU pattern agreement.

151    In their amended defence, the respondents admitted the allegations in [14]–[16] above, denied those in [17] and did not admit those in [18]. Further, with respect to the denial of the allegations in [17], they pleaded that:

a.    [Mr Ravbar] directed organisers to ensure that:

i.    any principal contractors who had enterprise agreements containing job security clauses complied with those clauses; and

ii.    any sub contractors engaged at sites where the principal contractor had an enterprise agreement containing a job security clause, provided terms and condition[s] the same as or not less favourable to those contained in the principal contractor’s enterprise agreement.

In evidence at the trial, the job security clauses mentioned above were commonly referred to as JUCs.

152    In addition to these aspects of the industrial context to the alleged rationale for Mr Close’s conduct, the particular factual context relating to Universal Cranes’ involvement in the Legacy Way project was pleaded at [19]–[21] of the ASOC as follows: