FEDERAL COURT OF AUSTRALIA

Australian Building and Construction Commissioner v McDermott (No 2) [2018] FCA 1611

ORDERS

THE COURT DELCARES THAT:

1.    On 9 December 2015, the second respondent contravened s 500 of the Fair Work Act 2009 (Cth) by being physically aggressive toward a representative of the occupier of a construction site situated at 60 South Terrace in Adelaide.

2.    The fourth respondent was knowingly concerned in the contravention of the second respondent referred to in paragraph 1 and so contravened s 500 of the Fair Work Act 2009 (Cth) on 9 December 2015.

THE COURT ORDERS THAT:

1.    The application against the first respondent is dismissed.

2.    The application against the second respondent is dismissed in respect of all allegations of contravention of the Fair Work Act 2009 (Cth) other than the contravention referred to in paragraph 1 of the declarations made today.

3.    The application against the third respondent is dismissed.

4.    The application against the fourth respondent is dismissed in respect of all allegations of contravention of the Fair Work Act 2009 (Cth) other than the contravention referred to in paragraph 2 of the declarations made today.

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

REASONS FOR JUDGMENT

CHARLESWORTH J:

1    In late 2015 three officials of the now-named Construction Forestry Maritime Mining and Energy Union, attended a construction site situated on South Terrace in Adelaide.

2    The Australian Building and Construction Commissioner alleges that the officials engaged in conduct at or in relation to the site in contravention of the Fair Work Act 2009 (Cth) (FW Act). The Third Amended Statement of Claim (SOC) dated 21 June 2017 alleges that:

(1)    the first respondent, Mr Michael McDermott, contravened s 348 of the FW Act on 30 November 2015;

(2)    the second respondent, Mr Mark Gava, contravened s 348 and s 500 of the FW Act on 9 December 2015;

(3)    the third respondent, Mr James O’Connor, contravened s 348 and s 500 of the FW Act on 9 December 2015; and

(4)    the Union was knowingly involved in each of the officials’ contraventions and so is taken to have contravened the FW Act by the combined operation of s 550 and s 793 of the FW Act.

(5)    alternatively, the Union is vicariously liable for the officials’ contraventions.

3    Declarations of contravention and orders for the imposition of civil penalties are sought against each of the four respondents.

4    The issue of liability is to be determined separately. These reasons for judgment concern only that issue.

SUMMARY OF OUTCOME

5    I am not satisfied that any of the officials contravened s 348 of the FW Act. Nor am I satisfied that Mr O’Connor contravened s 500 of the FW Act.

6    I am satisfied that Mr Gava acted in an improper manner when seeking to exercise rights in accordance with Pt 3-4 of the FW Act by being physically aggressive toward a representative of the occupier of the site on 9 December 2015. I am otherwise not satisfied that Mr Gava contravened s 500 of the FW Act by any other conduct pleaded against him.

7    By the operation of s 550 and s 793 of the FW Act, the Union was knowingly involved in Mr Gava’s contravention and so it, too, contravened s 500 of the FW Act.

8    No other allegation against the Union in this proceeding is established.

LEGISLATION

9    It is convenient to begin with a broad survey of the key provisions of the FW Act and their interrelation with certain State laws. As will become apparent, the parties in this action are as much in dispute as to the state of the law as they are in relation to the facts.

Proceedings and proof

10    The Court has the power to make an order for the payment of a civil penalty if satisfied that a person has contravened a civil remedy provision: FW Act, s 546. Section 348 and s 500 of the FW Act are civil remedy provisions: FW Act, s 539.

11    The Commissioner bears the burden of proving the elements of the contraventions to the civil standard of proof: FW Act, s 551. In deciding whether it is satisfied that the contraventions have occurred, the Court is to take into account the nature of the cause of action or defence, the nature of the subject matter of the proceeding and the gravity of the matters alleged: Evidence Act 1995 (Cth) s 140; Briginshaw v Briginshaw (1938) 60 CLR 336.

12    The parties are otherwise in dispute as to whether s 361 of the FW Act reverses the onus of proof in respect of a fault element for the prohibition in s 348, particularly in relation to conduct constituted of a threat to take or organise action. That issue is dealt with at [137] to [147] below.

Section 500

13    Section 500 of the FW Act provides:

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

14    The case against Mr Gava and Mr O’Connor is that they acted in an improper manner, in respects outlined at [176] to [179] below, when:

(1)    exercising or seeking to exercise rights in accordance with Pt 3-4 of the FW Act, namely rights of entry under s 117 of the Work, Health and Safety Act 2012 (SA) (WHS Act);

(2)    further, and alternatively, seeking to exercise rights in accordance with Pt 3-4 of the FW Act, namely the right of a permit holder conferred by s 484(b) of the FW Act to enter premises for the purposes of holding discussions with (among others) persons whose industrial interests the permit holder’s organisation is entitled to represent.

15    Section 500 is contained in Pt 3-4, the objects of which are expressed in s 480:

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

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

(i)    this Act and fair work instruments; and

(ii)    State or Territory [Occupational Health and Safety] laws; and

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

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

16    For the purpose of s 480, a State Occupational Health and Safety (OHS) law includes the WHS Act: Fair Work Regulations 2009 (Cth), reg 3.25, item 4A.

17    Division 3 of Pt 3-4 of the FW Act is titled “State or Territory OHS rights”. The right to enter premises pursuant to s 117 of the WHS Act is a “State or Territory OHS right” for the purposes of Pt 3-4. By s 494 of the FW Act, an official of an organisation must not exercise a State or Territory OHS right unless the official is a permit holder, being a person to whom a permit has been issued under s 512. A permit holder must not exercise a State or Territory OHS right unless the permit holder produces his or her entry permit for inspection when requested to do so by (relevantly) the occupier of the premises: FW Act, s 497.

18    Section 117 of the WHS Act confers a right of entry in the following terms:

Entry to inquire into suspected contraventions

(1)    A WHS entry permit holder may enter a workplace for the purpose of inquiring into a suspected contravention of this Act that relates to, or affects, a relevant worker.

(2)    The WHS entry permit holder must reasonably suspect before entering the workplace that the contravention has occurred or is continuing and involves a risk to the health or safety of a relevant worker.

…

19    To meet the precondition for entry of a premises under this provision, it will be sufficient for a permit holder to have a reasonable suspicion that a person conducting a business or undertaking has breached a duty to ensure, so far as is reasonably practicable, the health and safety of workers engaged or caused to be engaged by the person: WHS Act, s 19(1)(a). The duty is one to ensure, as far as reasonably practicable (WHS Act, s 19(3)):

(a)    the provision and maintenance of a work environment without risks to health and safety; and

(b)    the provision and maintenance of safe plant and structures; and

(c)    the provision and maintenance of safe systems of work; and

(d)    the safe use, handling and storage of plant, structures and substances; and

(e)    the provision of adequate facilities for the welfare at work of workers in carrying out work for the business or undertaking, including ensuring access to those facilities; ...

20    Section 119(1)(a) of the WHS Act requires a WHS entry permit holder to give to the person conducting the business or undertaking a notice in respect of the entry and the suspected contravention, in accordance with the regulations, unless giving the notice would defeat the purpose of the entry or unreasonably delay the permit holder in an urgent case.

21    Section 118 of the WHS Act provides that, while at a workplace entered pursuant to s 117, the entry permit holder may, “in relation to the suspected contravention of [the WHS Act]”:

(a)    inspect any work system, plant, substance, structure or other thing relevant to the suspected contravention;

(b)    consult with the relevant workers in relation to the suspected contravention;

(c)    consult with the relevant person conducting a business or undertaking about the suspected contravention;

…

(e)    warn any person whom the WHS entry permit holder reasonably believes to be exposed to a serious risk to his or her health or safety emanating from an immediate or imminent exposure to a hazard, of that risk.

…

22    The respondents submit, and I accept, that a permit holder would not act in an “improper manner” when exercising a right of entry under s 117 of the WHS Act by doing any one of the things authorised by s 118.

23    Unlike the right of entry conferred by s 117 of the WHS Act, entry to a premises pursuant to s 484 of the FW Act may only be made upon giving at least 24 hours’ notice before the entry: s 487(3). Before entering premises under s 484, the permit holder must give the occupier of the premises an entry notice, unless the Fair Work Commission (FWC) has issued an exemption certificate for the entry: s 487(1)(b). The right may only be exercised during working hours, and discussions under s 484 may only be held during mealtimes or other breaks: FW Act, s 490(1) and (2). The discussions must be held in rooms or areas of the premises agreed with the occupier or, if there be no agreement, in a place where one or more of the persons participating in the discussions ordinarily takes meal or other breaks, or a place provided by the occupier for that purpose: FW Act, s 492. None of these conditions attach to the right of entry conferred by s 117 of the WHS Act.

Section 348

24    Section 348 of the FW Act provides:

Coercion

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

25    For the purposes of this provision, a person engages in “industrial activity” if the person does or does not comply with a lawful request made by, or requirement of, an industrial association: FW Act, s 347(b)(iv). The Union is an industrial association for that purpose.

26    The elements of a contravention of s 348 of the FW Act are considered elsewhere in these reasons.

FACTS

27    From about October 2015, Sun Construction Australia Pty Ltd occupied the site to construct 27 residential apartments. Sun engaged a project manager, Mr Sam Nicholls, and a site manager, Mr Michael Jones.

28    Sun engaged subcontractors including Piotto Bros Cement Flooring Pty Ltd, Vesta Steel Pty Ltd, Cubelic Constructions Pty Ltd and an entity trading as Innov8 Plumbing Services. Employees of these entities were present at the site on 9 December 2015 and on earlier dates. I am satisfied that the entities, as employers, were represented by Mr Anthony Vial (on behalf of at least Piotto and Vesta) and Mr Marijan (Steve) Cubelic on behalf of Cubelic. I will refer to the employees and the employer representatives collectively as “the workers”, at least until it becomes necessary to distinguish between them.

29    Mr Scott Ren was also employed by Sun as a labourer. Mr Ren is an accountant who was related to the developers of the project. Mr Ren was the only labourer on the site having the status of an employee of Sun. He spent about half his time labouring on the site and the other half assisting Mr Jones in the site office. Mr Ren acknowledged that he was the “eyes and ears” of Sun at the site.

30    The Court heard oral evidence from Mr Nicholls, Mr Jones, Mr Ren, Mr Cubelic, Mr Vial and Mr O’Connor. Mr McDermott did not give evidence. Nor did Mr Gava.

31    I consider both Mr O’Connor and Mr Nicholls to be unimpressive witnesses, at least in the respects discussed below. For the most part, however, it is unnecessary to resolve any direct contest of oral testimony between them. That is either because the events forming the subject of their evidence were witnessed by other persons, whose evidence is generally to be preferred, or because the critical questions to be determined do not turn on the differences in their accounts.

32    My impressions of the witnesses will otherwise be explained in the course of setting out my findings about the events on and leading up to 30 November 2015 and 9 December 2015.

Events up to and including 30 November 2015

33    The site measured about 670 square metres and was level. It was fenced on each side, except for its eastern boundary, which adjoined a vacant block. At the time of the alleged contraventions, work on the site was in its early stages. An air-conditioned site hut had been installed, measuring about 27 square metres. The hut served multiple purposes. It was utilised by Mr Jones for office space and by workers as a lunch room. It contained, among other things, a sink with running water and a first aid kit. As at 9 December 2015, the hut was utilised by plumbers on the site for the storage of equipment, particularly a compactor (referred to in evidence as a whacker packer) and a container of fuel.

34    Also on the site was a portable chemical toilet, referred to in evidence as the “thunder box”.

35    From the early stages of works on the site, Mr Vial complained to Mr Jones about (at least) the site not having a plumbed toilet.

36    Mr Vial properly acknowledged in evidence that his memory of critical events was vague. He was nonetheless adamant that the toilet on the site was unclean and that it smelled horribly, particularly in hot weather. He could not otherwise give evidence as to the state of the toilet on any particular day because he preferred not to use it. He could not attest to the cleanliness of the toilet on the morning of 9 December 2015.

37    I am satisfied that at some time prior to 30 November 2015, Mr Vial contacted the Union to complain that the site did not have a plumbed toilet. Although he could not recall the name of the person he spoke to, I am satisfied that his complaint came to the attention of Mr McDermott. Mr O’Connor gave evidence that the Union had received complaints from “workers” in the plural. However, he said that information had been conveyed to him by Mr McDermott (who did not give evidence). I find that Mr O’Connor did not otherwise have personal knowledge of the nature of complaint(s) nor of the person(s) who had complained, nor of the specific content of the complaint(s).

38    I find that it was by reason of (at least) the complaint by Mr Vial that the Union came to have a series of dealings with Sun in which demands were made to improve the amenities available on the site.

Conversation between Mr McDermott and Mr Jones

39    Mr McDermott entered the site on the morning of 30 November 2015. He introduced himself to Mr Jones and identified himself as the Secretary of the Union, as he then was. Mr McDermott had a conversation with Mr Jones in the site hut. During that conversation, Mr McDermott said words to the effect that the site was not up to standard, that it needed a larger lunch room, a separate site office, a first aid kit, a first aid room, a stretcher and a plumbed toilet.

40    Mr McDermott then said words to the effect that if the improvements weren’t completed by Wednesday, he would shut the site down.

41    Mr Jones’ evidence concerning this conversation was not contradicted. It was put to Mr Jones in cross-examination that Mr McDermott had not threatened to shut the site down, but had instead said that SafeWork SA (the statutory authority responsible for administering the WHS Act) would shut the site down.

42    Mr Jones’ evidence concerning the words used by Mr McDermott was consistent with notes he wrote in his diary on that day and following. I would make the same findings on the oral evidence without resort to the notes in any event.

43    I consider Mr Jones to be an earnest witness. He was forthcoming with the Court as to those matters he could recall and those matters he could not. I accept his evidence on this topic.

Events up to and including 9 December 2015

44    Mr Nicholls gave evidence to the effect that after the visit from Mr McDermott on 30 November 2015 (which was reported to him by Mr Jones), he told Mr Jones that an inspection of the site by SafeWork SA should be arranged. I am not satisfied that conversation occurred.

45    At some time prior to 4 December 2015, Mr Nicholls did, however, obtain advice from the Master Builders Association (MBA) concerning the issues that had been raised by the Union. He told the Court, and I accept, that the effect of the advice was that the site complied with occupational health and safety laws. I have regard to the receipt of that advice for the purpose of informing my findings as to Mr Nicholls’ own state of mind.

46    An inspector from SafeWork SA attended the site on 4 December 2015. Mr Jones told the Court that the inspector told him the inspection was prompted by a complaint SafeWork SA had received. SafeWork SA records show that the inspector did indeed act on a complaint made by Mr McDermott. This supports my conclusion that Mr Nicholls did not instruct Mr Jones to arrange for a SafeWork SA inspection. If the conversation did occur it was not acted upon, otherwise Mr Jones might reasonably be expected to have assumed that the SafeWork SA inspector had attended at his own invitation.

47    On the same day, and before the inspection was completed, Mr Gava telephoned Mr Nicholls. Mr Gava said that he wanted to meet with Mr Nicholls to discuss the Union’s concerns about the amenities on the site. Mr Nicholls told Mr Gava that he had obtained advice from the MBA to the effect that the site was compliant. Mr Nicholls said that Mr Gava should provide him with any documents that would substantiate the Union’s concerns. Mr Nicholls said that if any such documents were provided, he would consider them, but until then he would rely on the advice he had received from the MBA.

48    Mr Gava said words to the effect that it was not his job to provide Mr Nicholls with documents outlining the problems about which the Union had concerns and that it was Sun’s responsibility to comply with the law. Mr Nicholls replied that he was not prepared to meet with Mr Gava and ended the call.

49    Mr Nicholls’ evidence concerning the content of that call was not seriously challenged.

50    After the call, the inspector from Safework SA completed the inspection. The inspector told Mr Nicholls that there was no issue with the site, except that a larger first aid kit was required. I am satisfied that upon the completion of the inspection, and subject to the replacement of the first aid kit (which was arranged), Mr Nicholls genuinely believed that there were no occupational health and safety concerns affecting the site. I otherwise make no finding as to the objective state of the site at that time.

51    That afternoon, Mr Nicholls attempted to reach Mr Gava on his mobile telephone. He left a voicemail message to the effect that a SafeWork SA inspector had determined the site to be compliant. Mr Nicholls’ telephone records lend support to these findings.

52    I digress to note that it was the respondents’ case at trial that Mr Gava and Mr O’Connor entered the site on the morning of 9 December 2015 in the actual exercise of rights conferred under s 117 of the WHS Act, extracted at [18] above. Provided that the preconditions for entering the site under that provision are fulfilled, entry to a premises may occur without the permit holder giving 24 hours’ advance notice.

53    On the basis of evidence given by Mr Nicholls and Mr Jones, I am also satisfied that from at least 4 December 2015, Mr Nicholls was concerned to ensure that officials from the Union should not be permitted to disrupt work on the site except in strict accordance with the law. Some time between 4 and 9 December 2015, Mr Nicholls gave a direction to Mr Jones to the effect that if any officials from the Union visited the site, he was to ask them to produce documents showing they had a right of entry. Mr Nicholls also had a discussion with Mr Jones concerning advice he had received from the MBA about rights of entry under the FW Act. I find that the discussion did not extend to any rights of entry an official might have to enter the site pursuant to the WHS Act. On the basis of his discussion with Mr Jones, and on the basis of words said by Mr Nicholls on 9 December 2015, I am satisfied that Mr Nicholls genuinely believed that an official of the Union could not enter the site without first providing 24 hours’ notice. That is consistent with the conditions of the officials’ right to enter the site under s 484 of the FW Act for the purpose of holding discussions with certain workers. However, Mr Nicholls’ subjective understanding of the law did not include a proper grasp of the conditions upon which an official may enter a site in the exercise of the right to enter premises under s 117 of the WHS Act without first giving 24 hours’ notice.

The officials enter the site

54    Mr Gava and Mr O’Connor arrived at the site between 8:00 am and 9:00 am, possibly a little later. Each of them brought a notice of entry for the purposes of the WHS Act (the entry notices). The entry notices are standard forms completed and signed by Mr Gava and Mr O’Connor.

55    Where the standard form makes provision for the suspected contravention of the WHS Act to be identified, Mr O’Connor’s form states “Amenities not up to regulation standard”. The particular amenities said to be subject to the suspected contravention are not identified. Nor does the form identify the regulations suspected to be contravened. Similarly, Mr Gava’s form makes the bland assertion “Lack of amenities not to standard”. The amenities are not particularised, nor are the relevant standards.

56    Mr Jones saw the officials approaching the site and telephoned Mr Nicholls. Mr Nicholls was at that time commuting to the site and was not far away. Mr Jones then met Mr Gava and Mr O’Connor near the site hut. Mr Nicholls arrived very shortly afterward.

57    My findings as to the general content and tenor of the contested exchanges that then followed are based largely on the evidence of Mr Jones, which I accept.

58    Upon arriving, Mr Nicholls said to the officials “Where’s your right of entry?”. One of the officials said “It’s under the WHS Act”. Mr Nicholls told the officials to leave the site because they had not given 24 hours’ advance notice to Sun of their proposed entry.

59    Mr Nicholls was provided with the entry notices, either by Mr Gava or by Mr Jones. I do not accept Mr Nicholls’ evidence that it was Mr Jones who provided him with the forms, although I do not consider anything of moment turns on that discrepancy.

60    After looking at the notices, Mr Nicholls said words to the effect that the notices had not been filled out correctly and that they were “rubbish”. He said words to the effect that Safework SA had recently inspected the site and that the amenities were “fine”.

61    Mr Nicholls asked the officials to produce identification. Each of them opened their wallets to display identification cards. When Mr Nicholls produced his telephone and attempted to photograph the officials’ identification, the officials said words to the effect that Mr Nicholls could not take a photograph and pulled their wallets away.

62    Mr Nicholls’ told the Court that Mr Gava brushed the telephone aside with his hand. Mr O’Connor said that Mr Gava put his hand over the telephone to prevent a picture being taken, but accepted that it was possible that Mr Gava may have touched Mr Nicholls’ phone when doing so. Neither account accords with the evidence of Mr Jones, who said that the extent of the interaction involved the officials withdrawing their wallets and denying Mr Nicholls the opportunity to take a photograph. Mr Jones said he did not see either official swipe Mr Nicholls’ telephone out of the way.

63    I make no finding that Mr Gava “swiped” the phone away. It is sufficient to find that both of the officials denied Mr Nicholls the opportunity to photograph their identification cards. The reason why the officials thought it necessary or appropriate to refuse to have their identification photographed is not explained in the evidence.

64    Mr Jones told the Court, and I accept, that in the course of this initial interaction there was a heated exchange between the officials and Mr Nicholls concerning the sufficiency of the amenities on the site and the validity of the entry notices. In the course of the exchange Mr O’Connor said words to the effect that Sun have been told to do something about the amenities but had done nothing.

65    Mr Nicholls’ said that in this exchange Mr O’Connor used the word fucking, a word attributed to Mr O’Connor in the Commissioner’s pleading. Mr Jones’ evidence did not go so far.

66    Mr O’Connor denied that he swears on any occasion. For reasons expressed below, I give Mr O’Connor’s evidence on any topic very little weight. I nonetheless do not consider the evidence of Mr Nicholls, of itself, sufficient to prove to the requisite standard that Mr O’Connor used the word fucking in this exchange. I am nonetheless satisfied that Mr O’Connor’s words formed a part of an angry outburst in which he raised his voice and spoke loudly and abruptly.

67    Mr Jones’ evidence-in-chief as to what occurred next was expressed as follows:

Mr O’Connor said, ‘If you don’t abide by – if you don’t abide by what’ – how to say it. I recall him saying, ‘If you don’t abide by what we’re saying,’ I’m pretty sure he said, ‘the site will be shut down as well. And we know more than what SafeWork does.’

68    At about 3.00 pm that day, Mr Jones made a note in his diary in relation to this exchange. It reads: They handed Sam the forms and stated they would shut down the site if Sun Construction didn’t install a plumbed-in toilet. The emphasis is mine.

69    Mr Jones was consistent throughout his evidence that words to the effect that “the site would be shut down” were used.

70    It was put to Mr Jones that at the time that he prepared his notes, he was motivated to “get [Sun] off the hook” for contraventions of health and safety requirements and to “implicate the Union, the CFMEU”. I am not satisfied that Mr Jones had any such motivation, whether at the time that he prepared his notes or at the time that he gave evidence. I reject each premise on which it was said such a motivation should be imputed to him. First, it was put to Mr Jones that he knew that open trenches on the site on 9 December 2015 were not properly barricaded. Whist Mr Jones was aware the trenches were not barricaded, he stated that was because work on the relevant areas of the trenches was being undertaken at the time. It was then put to Mr Jones that he knew that the storage of the whacker packer and the container of fuel in the lunch room presented a health and safety hazard. Mr Jones frankly acknowledged that it was preferable that plant of that kind not be stored in the lunch room but otherwise denied having a belief that it presented a health and safety hazard. I accept his evidence in this regard. Even if Mr Jones’ belief in that respect was not correct, there is objective evidence to the effect that later that day the plumbers who had caused the whacker packer and fuel to be stored in the lunch shed removed those items at the direction of a SafeWork SA inspector. If there existed a health and safety hazard it was (and was always capable of being) promptly remedied and did not, in my view, present Mr Jones with a motivation to fabricate his notes after the event so as to diminish Sun’s responsibility.

71    Moreover, it was not directly put to Mr Jones that he had deliberately falsified a business record so as to implicate the Union in conduct of the kind now forming the subject of these proceedings. Indeed, in closing submissions, the respondents ultimately sought to rely on the evidence of Mr Jones at least insofar as it contradicted that of Mr Nicholls and otherwise supported their case.

72    More generally, as I have said, Mr Jones was frank and forthcoming in his narrative. He did not seek to exaggerate the conduct of the Union, nor did he profess to have forgotten matters that might be perceived to adversely affect the Commissioner’s case or to assist that of the respondents. He was not an active participant in the “heated” exchanges that took place on the site and did not appear motivated to vindicate his own position or that of Sun. I consider his written notes and his oral testimony to be generally reliable.

73    Nonetheless, under cross-examination, when asked what he meant by the word “they” in his notes, Mr Jones said that he thought that it was Mr Gava who had said the site would be shut down if a plumbed toilet was not installed. That aspect of his evidence is inconsistent with his evidence-in-chief to the effect that it was Mr O’Connor who had said the words.

74    I am satisfied that either Mr Gava or Mr O’Connor said words to the effect that the site would be shut down if a plumbed toilet was not provided. However, I cannot be satisfied, to the requisite standard, which of the two officials said the words.

75    Returning to the events of 9 December 2015, I find that during and following his initial exchanges with the officials, Mr Nicholls became increasingly upset and angered by the officials entering (or purporting to have a right to enter) the site pursuant to what he subjectively considered to be dubious entry notices, particularly in circumstances where he genuinely believed SafeWork SA had not identified any compliance issues with the site (apart from the size of the first aid kit) just a few days prior. Mr Nicholls’ anger and frustration is also explained by the circumstance that he had reported the outcome of the SafeWork SA inspection to Mr Gava by way of voice message. I find that the statement by Mr O’Connor that the officials knew more than SafeWork SA did was one aspect of the officials’ conduct that also contributed to his feelings of anger and frustration.

76    I reject Mr Nicholls’ evidence that he never got angry or changed his tone in his dealings with the officials. I do not consider Mr Nicholls’ self-assessment of his outward demeanour to be the most reliable evidence available on that topic. I have ultimately accepted the evidence of Mr Jones to the effect that there was anger expressed “on both sides”, that is, between Mr Nicholls’ on the one hand, and Mr O’Connor and Mr Gava on the other. The “discussion” was “loud” and “heated”.

77    Ultimately, however, Mr Nicholls did not seek to impede the officials from entering the site, despite his subjective concerns about the lawfulness of their entry.

78    As the officials entered the site, Mr Nicholls returned to the site hut and telephoned the MBA. A representative of the MBA arrived shortly afterward. Mr Nicholls gave the representative the entry notices and requested that she make copies of them. The representative left the site and returned a short time later. She provided the original entry notices to Mr Nicholls. Mr Nicholls put the notices into his left trouser pocket. I find that from that time Mr Nicholls knew that photocopies of the entry notices had been taken by the MBA. I consider Mr Nicholls’ responses to questions concerning that knowledge to be evasive. It is implausible that Mr Nicholls would be uncertain (as he claimed) as to whether he had access to copies of the forms taken by the MBA’s representative at his own request.

Stop work meeting

79    In the meantime, the officials had sought the attention of the workers. Mr Gava beckoned them with an arm gesture. He said “Come on fellas, we’re having a site meeting,” or words to that effect. Mr O’Connor, too, used gestures to encourage the workers to gather around. A meeting then occurred on the vacant land adjacent the site. All of the workers stopped working on the project to attend the meeting. I find that the calling of the meeting was the first thing the officials did following their initial exchanges with Mr Jones and Mr Nicholls. They did not first perform any inspection of the toilet, lunch room or any other aspect of the site.

80    Mr O’Connor acknowledged that he had joined with Mr Gava in calling the stop work meeting. He said that he used the words “we are going to come over here and consult about the issues we have with the site”. Mr O’Connor used the word “consult” a number of times in the course of giving evidence. He did not present as a genuine witness in this respect. He conveyed the impression of having tailored his evidence to fit the language of s 118 of the WHS Act to support a submission made in the respondents’ defence. The suggestion that Mr O’Connor used the word “consult” whilst on the site finds no support in the reliable evidence of Mr Jones or Mr Cubelic. In the result, nothing of substance turns on the question of whether the officials “consulted” with the workers in the sense permitted by s 118 of the WHS Act (extracted, in part, at [21] above). I nonetheless consider this aspect of Mr O’Connor’s evidence to be a manifestation of his willingness to reconstruct evidence to support his case and that of the Union.

81    Mr Nicholls attempted to join the gathering but was told by Mr Gava that he could not attend. Both Mr Nicholls and Mr Jones stood some distance from the meeting and so could not hear what was said. Mr Nicholls asked Mr Ren to attend the meeting and to report back to him.

82    The meeting on the vacant block continued for about 15 minutes. Mr Ren, Mr O’Connor, Mr Cubelic and Mr Vial gave evidence about what was said and done at the meeting. Mr Vial’s memory as to what occurred was vague. Mr Ren also professed to have an unreliable memory as to what was said. My findings as to what occurred are based on the evidence of the witnesses, considered as a whole. To the extent that there are differences in their accounts, I do not consider them to be significant. For the most part, I have accepted the evidence of Mr Cubelic, who I consider to be a more independent participant and hence a more reliable witness than Mr O’Connor and Mr Ren.

83    Mr Cubelic told the Court that Mr O’Connor began the meeting by asking the workers if they were “happy” with the amenities and whether they were going to “put up with the substandard conditions”. Mr Gava then asked the workers if they were going to down tools until the amenities were fixed.

84    It then emerges from the evidence of all of the witnesses that the dominant concern discussed at the meeting was the fact that the so-called “thunderbox” was not plumbed. The conversation centred about what should be done about the workers’ dissatisfaction with that state of affairs.

85    Although the topic of the lunch room was raised, I find that the lunch room was not the subject of any particular suggested course of action, whether by the officials or by the workers themselves. I find that the storage of the whacker packer and the fuel container in the lunch room was not raised by the officials, whether in the context of a safety concern or otherwise, nor was the circumstance that trenches on the site were not properly barricaded. On the evidence before me I am not satisfied that either Mr O’Connor or Mr Gava formed any view about those two aspects of the site at the time that they met with the workers.

86    I find that neither of the officials conducted the meeting as part of an investigative process in which they sought to obtain information about whether or not the WHS Act had been contravened by the provision of a portable chemical toilet. They did not raise with the workers the circumstance that they held a suspicion that the failure to install a plumbed-in toilet constituted a contravention of the WHS Act. It remains unclear to the Court why that should be so.

87    The question of whether the workers should attend on the following day was not put to a formal vote. There was nonetheless a discussion among the workers by which a general agreement was reached that they would not attend at the site on the following day and until a plumbed toilet was provided. I find that the proposition that the workers not attend work until the toilet was plumbed was an idea initially advanced by the officials, and that the officials then coordinated the discussion between the workers at the conclusion of which a general consensus in favour of the idea was reached. The evidence is otherwise insufficient to found a finding that either Mr Gava or Mr O’Connor, positively directed the workers not to attend for work on the following day.

88    The only employee of Sun who attended the meeting was Mr Ren. I have found that he attended at the prompting of Mr Nicholls and not by virtue of any encouragement by the officials.

89    Whilst I have otherwise referred collectively to the attendees at the meeting as “the workers”, they were not employees of Sun. The other workers were employees of Sun’s subcontractors, or owners (or representatives of the owners) of the sub-contractors themselves. On the state of the evidence, it cannot be said that the officials directed or encouraged any person to stop work without obtaining the express or implied agreement of his employer.

90    After the meeting, Mr Vial approached Mr Jones. He said that his workers would not attend on the following day because there was no plumbed toilet. According to Mr Jones, Mr Vial said words to the effect that the Union had instructed the workers not to attend. Mr Vial acknowledged he may have used those words. If Mr Vial did use those words, I am not satisfied that the words accurately reflect what in fact occurred at the meeting. As I have said, Mr Vial’s memory of what in fact occurred at the meeting was vague, at best.

91    Mr Cubelic also reported the outcome of the stop work meeting to Mr Nicholls. He said words to the effect that an agreement had been reached among the workers. I consider that to be an accurate summary of the outcome of the meeting.

92    It is notable that in reporting the outcome of the meeting to Mr Nicholls and Mr Jones, neither Mr Vial nor Mr Cubelic made any demands in relation to any other issue arising on the site apart from the demand that there be a plumbed toilet. Neither Mr Vial nor Mr Cubelic reported any concern to the effect that the toilet did not comply with State OHS laws, whether on the basis of their own knowledge or information or on the basis of any information discussed at the meeting.

93    Mr Gava and Mr O’Connor approached Mr Nicholls and Mr Jones and reported the outcome of the meeting. I accept the evidence of Mr Jones as to the words used. I find that Mr Gava said words to the effect that unless there was a plumbed-in toilet, the workers would not attend work the following day, and that the site would be shut down.

Verbal demands

94    After reporting the outcome of the meeting, there followed an exchange between Mr O’Connor and Mr Nicholls in which Mr O’Connor said to Mr Nicholls “give us back the forms”.

95    Mr O’Connor told the Court that Mr Nicholls responded by saying that he did not have the forms, and that Mr O’Connor then called Mr Gava over. Mr O’Connor told Mr Gava that Mr Nicholls had refused to return the forms. Mr Gava then repeated the demand, and Mr Nicholls again stated that he did not have the forms. The demands and denials were repeated, then repeated again.

96    In his evidence, Mr Nicholls denied having said that he did not have the forms. He claimed he said words to the effect that the forms had been given to him and that he intended to keep them. Mr Jones gave evidence to similar effect.

97    I find that for the first part of this interaction, Mr Nicholls did wrongly deny that he had the forms. The forms were in his trouser pocket. Mr Nicholls had his hand in his pocket around the forms. I also find that it was not until later in the exchange that he also said words to the effect that he would not return the forms because they had been given to him by the officials.

98    I find that both Mr Gava and Mr O’Connor repeated their demands for the return of the forms in forceful language and with increasing intensity. Their demands were ornamented with the word “fuck” or “fucking”, albeit as an epithet attaching to the forms themselves. There is no evidence that either official launched a personalised verbal attack on Mr Nicholls. Rather, their language was in the nature of a repeated demand to the effect “give us back the forms” or “give us back the fucking forms”.

Physical contact

99    The next incident requires a more detailed account of the evidence given by each witness.

100    Mr Nicholls told the Court that after the verbal exchange I have just described, Mr Gava lunged at him, saying “give us back the fucking forms”, while using one hand to attempt to remove Mr Nicholls’ hand from his pocket, and using the other hand to reach into the pocket. Mr Nicholls said that when Mr Gava could not retrieve the forms, he “hip and shouldered” him into a nearby fence and pressed him up against it. Mr Nicholls said he cried out “this is assault”. Mr Nicholls denied that he had ended up against the fence because he had “stepped back” into it. He also denied that Mr Gava was holding an iPad at the time and so could not have utilised both hands in the manner he had described.

101    Mr Nicholls stated that the interaction continued for a “couple of minutes”. He said that Mr Cubelic intervened and pulled Mr Gava from him, telling Mr Gava to calm down. According to Mr Nicholls, Mr Cubelic said “What the hell are you doing? This is not the way things are done these days”. Mr Nicholls said that the physical contact between him and Mr Gava resulted in the pin on Mr Nicholls’ wrist watch breaking. A photograph of the broken watch supported this aspect of his testimony.

102    Mr Jones also gave evidence to the effect that Mr Gava used two hands in an attempt to retrieve the forms from Mr Gava’s pocket and that he was “up close” when doing so. He saw Mr Gava’s hand contacting Mr Nicholls’ pocket. Mr Jones said he saw Mr Nicholls “Up against a site fence because [Mr Gava] kept on pushing up”, but could not tell from where he stood whether there was physical contact between the two men before that time. He said that Mr Nicholls was up against the fence for no more than 20 seconds, and later said it could have been for between five to 10 seconds. He told the Court that immediately prior to coming up against the fence, Mr Nicholls had said “Stop, stop it. This is assault. What you’re doing is assault”.

103    Under cross-examination Mr Jones acknowledged that Mr Nicholls could have stepped back into the fence. Mr Jones said that Mr Cubelic “pulled them apart” and said words to the effect “Calm down fellows” or “Stop it fellows”.

104    Mr Ren was about 10 to 15 metres away when the incident occurred. He said there was a skip bin between him and the other men, but he had an unobstructed view over the top of the bin. He said that he saw Mr Gava push Mr Nicholls with his hand on the chest and around the upper arm. He could not recall whether Mr Gava held an iPad at the time. From the place where he stood, he could not hear what was being said. I do not consider his evidence adds much to the account given by Mr Cubelic.

105    Mr Cubelic saw the incident from behind Mr Gava. He said that Mr Gava used an aggressive tone when asking for the forms. He said that when Mr Nicholls denied having the forms, Mr Gava said “You have got them”, then lunged toward Mr Nicholls. He said Mr Nicholls stepped back and was “forced up against the fence”. He said that he saw physical contact when Mr Gava’s hand went to Mr Nicholls’ pocket, but after that he could not say from his position if there was further physical contact. He nonetheless said that Mr Gava was “up against” Mr Nicholls trying to get the forms back, and that it was at this point that he stepped in to separate the two men. Mr Cubelic said the incident occurred over “seconds”, “not even a minute”.

106    In his evidence-in-chief Mr O’Connor gave this innocuous initial account of the incident:

And Mark went to reach – to get the notices out of Mr Nicholls’ pocket. Mr Nicholls brushed his hand away and said, ‘I don’t have them.’ And then Mr Cubelic sort of got between them and said, ‘Listen, sort of cut out it or calm down,’ words to that effect. And Mark sort of turned and walked away. Mr Cubelic then said, ‘Are they the notices?’ And he pulled them out of his pocket.

107    Mr O’Connor denied that Mr Gava lunged at Mr Nicholls. He said that Mr Gava “leant” toward Mr Nicholls, reaching with his right hand for Mr Nicholls’ left pocket.

108    If Mr O’Connor’s initial account of the incident is to be accepted, the incident would amount to nothing more than a discourteous exchange in which merely incidental, if any, physical contact occurred. I reject this initial account in light of the other evidence, and especially considering how Mr O’Connor’s evidence then evolved.

109    Later in his evidence, Mr O’Connor said that Mr Nicholls stepped back away from Mr Gava and was “standing against the fence”. He said that Mr Nicholls “brought himself against the fence”.

110    Mr O’Connor insisted that Mr Nicholls and Mr Gava were situated apart from each other when Mr Cubelic stepped in. He said there was no physical contact by Mr Gava to Mr Nicholls’ person, although Mr Gava “might” have touched the pocket or the notices.

111    Mr O’Connor initially said that his view of the incident was unobscured. He then said that his view was obscured so that he could not see whether any part of Mr Gava’s body came into contact with Mr Nicholls. When it was put to Mr O’Connor that Mr Gava’s “hip and/or his shoulder” came into contact with Mr Nicholls, Mr O’Connor said “I can’t be 100 percent sure”. When asked whether he heard Mr Nichols say that he was being assaulted, Mr Nicholls said “I don’t recall”.

112    Mr O’Connor’s evidence became more unconvincing as it evolved. His initial evidence that Mr Gava made no physical contact at all with Mr Nicholls is at variance with the evidence of all of the other witnesses, and also with the evidence given by all witnesses (including himself) that Mr Cubelic stepped in to “calm down” a situation that Mr Cubelic considered required some physical intervention. If the events had occurred as Mr Nicholls described them it is difficult to conceive why Mr Cubelic should feel the need to intervene at all.

113    I do not accept Mr O’Connor’s evidence that he could not recall whether Mr Nicholls said that what Mr Gava was doing amounted to an assault. The purported lapse of memory is difficult to reconcile with Mr O’Connor’s initial evidence about there being little or no physical contact between the two men. Mr O’Connor did not profess to have a faulty memory when initially minimalising the physical manoeuvres of Mr Gava. Given his claim that the physical contact amounted to the mere reaching out and the possible touching of a pocket, it is peculiar that Mr O’Connor would be unable recall a comment as dramatic as “What you’re doing is assault”. In light of his initial account it is also peculiar that Mr O’Connor “can’t be 100 per cent sure” whether Mr Gava’s hip and shoulder contacted Mr Nicholls.

114    I consider Mr O’Connor’s evidence in relation to this incident to have been constructed in a way that he perceived might benefit Mr Gava, and therefore the Union, in the proceedings. I especially reject his evidence that Mr Gava did not lunge, and that he merely “reached” for the forms in Mr Nicholls’ pocket.

115    With the exception of the evidence of Mr O’Connor, I consider that the discrepancies between the witness accounts as to the precise choreography of this incident may otherwise be explained by the different positions from which the incident was viewed, the passage of time, the pace at which the incident unfolded and the fairly short period over which it occurred.

116    On the whole, I do not consider the evidence sufficient to prove that Mr Gava “hip and shouldered” Mr Nicholls in such a way as to propel Mr Nicholls against the fence by that means of force. However, again considering the evidence as a whole, I find that Mr Nicholls was forced back against the fence in the sense that he was lunged at by Mr Gava who aggressively gripped Mr Nicholls around the hand and wrist in an attempt to get at the forms in Mr Nicholls’ left trouser pocket. On the balance of probabilities, it was the forward and sudden momentum of Mr Gava’s lunging, together with his making forceful contact with Mr Nicholls’ hand and wrist that caused Mr Nicholls to move back about one metre against the fence. I find that the movement to the fence occurred quickly and that, once Mr Nicholls was there, Mr Gava pressed up against him in his continued attempt to wrest the forms from Mr Nicholls’ pocket. I find that Mr Nicholls remained pressed up against the fence for about 10 seconds. The physical contact between Mr Gava and Mr Nicholls was such that to break up the incident it was necessary for Mr Cubelic to physically pull Mr Gava away from Mr Nicholls. I accept that Mr Nicholls said words to the effect “Stop, stop it. This is assault. What you’re doing is assault” at around the time that he was pushed into the fence in the manner I have described, and that Mr Gava applied sufficient force to Mr Nicholls’ body to damage Mr Nicholls’ wrist watch.

117    I would make the same findings whether or not Mr Gava carried an iPad in one of his hands at the time of the incident.

118    After Mr Cubelic intervened, Mr Nicholls used his telephone to take photographs of the notices. It is unclear why he did so given that he had already arranged for the MBA to take photocopies.

Further inspection

119    The Court heard evidence that following this incident, SafeWork SA inspectors again attended at the site and identified health and safety matters that required attention. The provision of a plumbed toilet was not among the required improvements.

THE SECTION 348 ALLEGATIONS

Elements

120    To establish a contravention of s 348 of the FW Act it is necessary to prove both physical and mental elements.

121    The physical element in the present case comprises:

(1)    the making of a threat;

(2)    to organise or take;

(3)    action against Sun.

122    The mental element comprises:

(1)    an intent to coerce Sun;

(2)    to “engage in an industrial activity”.

Industrial activity

123    Relevantly, a person engages in industrial activity if the person does or does not comply with a lawful request made by, or requirement of, an industrial association: FW Act, s 347(b)(iv).

124    For the respondents it is submitted that the “lawful request made by … an industrial association” must be in the nature of a request made by the association for another person to participate in the activities of the industrial association. That construction, it is submitted, is supported by s 336(1) of the FW Act which sets out the objects of Pt 3-1, in which s 347 and s 348 reside. An intention to coerce a person to improve the state of amenities on a construction site is not, they submit, sufficient to fulfil the mental elements of the contravention.

125    A submission to similar effect was rejected by Jessup J in Esso Australia Pty Ltd v The Australian Workers’ Union [2015] FCA 758 (Esso at first instance); Australian Building and Construction Commissioner v Australian Manufacturing Workers’ Union (The Australian Paper Case) [2017] FCA 167. I am urged by the respondents not to follow these decisions on the basis that they are plainly wrong: Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89.

126    In BHP Billiton Iron Ore Pty Ltd v National Competition Council (2007) 162 FCR 234, at [83], Greenwood J said that a single judge may consider a decision of another judge to be plainly wrong in circumstances where there is “transparent error” including a “failure to consider a provision of an Act relevant to the disposition of the cause, thus causing the analysis to fall into error”. The respondents submit that the judgments in Esso at first instance and The Australian Paper Case fall into that class because in each there was a failure to consider s 336(1) of the FW Act which, it is submitted, is essential to the proper construction of s 347(b)(iv).

127    In Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (The Bay Street Case) [2018] FCA 83 Bromberg J expressed disagreement with Jessup J’s construction of s 347(1)(b)(iv). His Honour nonetheless followed Esso at first instance and The Australian Paper Case on the basis that they were not plainly wrong: at [32]. His Honour went on to find that a person who had failed to comply with a lawful request made by an industrial association to provide improved amenities on a construction site the person engaged in an “industrial activity” within the meaning of s 347(1)(b)(iv).

128    Like Bromberg J, I am not persuaded that the reasoning of Jessup J in Esso at first instance and The Australian Paper Case is plainly wrong, whether because the judgments contain no express reference to s 336(1) of the FW Act or otherwise. I proceed on the basis that a request made by the Union that Sun make improvements to the amenities on the site would constitute a lawful request of an industrial association for the purposes of s 347(1)(b)(iv) of the FW Act and that, by complying with the request, Sun would engage in “an industrial activity” for the purposes of s 348.

Intent to coerce

129    In National Tertiary Education Industry Union v Commonwealth (2002) 117 FCR 114, Weinberg J said (at [103]):

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

130    In Seven Network (Operations) Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union (2001) 109 FCR 378 at [41] Merkel J, in connection with s 170NC of the Workplace Relations Act 1996 (Cth), said that an “intent to coerce” involved two aspects:

First, it needs to be shown that it was intended that pressure be exerted which, in particular sense, will negate choice. Secondly, the exertion of the pressure must involve conduct that is unlawful, illegitimate or unconscionable. …

131    His Honour went on to find (at [43]) that it was necessary to show that the alleged contravener had “actual knowledge of the circumstances that made their conduct coercive”.

132    The Full Court of this Court has adopted the same principles in cases involving alleged contraventions of s 348 and s 343 of the FW Act: see, respectively Victoria v Construction, Forestry, Mining and Energy Union (2013) 218 FCR 172 at [91] – [92] (Buchannan and Griffiths JJ) (Victoria v CFMEU); Australian Building and Construction Commissioner v Hall [2018] FCAFC 83 at [25] (Tracey, Reeves and Bromwich JJ).

133    As to whether an action is “illegitimate” the majority in Victoria v CFMEU said:

91    In National Jet Systems, Buchanan J discussed the common law origins of the second element of the torts of coercion and duress which has been adopted by judges of this Court as an element of an ‘intent to coerce’, and which was (with respect correctly) applied by the primary judge. As Buchanan J pointed out in National Jet Systems (at [24]), McHugh J said in Crescendo Management Pty Ltd v Westpac Banking Corporation (1988) 19 NSWLR 40 at 46:

Pressure will be illegitimate if it consists of unlawful threats or amounts to unconscionable conduct. But the categories are not closed. …

92    In that passage, McHugh J folded the category of illegitimate conduct into the other two categories of unlawful or unconscionable conduct. Neither of those descriptions apply to the conduct of the State in this case, bearing in mind the finding of the primary judge (that the conduct was not unlawful) and the legal content of the notion of unconscionable conduct (see National Jet Systems at [26]-[27] quoting Australian Competition and Consumer Commission v CG Berbatis Holdings Pty Ltd (2003) 214 CLR 51 at [7], [11] and [56]).

93    In National Jet Systems, Buchanan J referred to two judgments of Jessup J, which were referred to again in argument on the appeals (Williams v Construction, Forestry, Mining and Energy Union (2009) 179 IR 441 and Williams v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (2010) 196 IR 365). Each of those cases concerned conduct by a union organiser who organised stoppages of work. In the second of those cases, Jessup J found that the conduct in question was unlawful, as being directly in contravention of a statutory prohibition. In the first of the cases, Jessup J found the conduct constituted an interference (‘in a business if not a legal sense’, at [109]) with the terms of the contracts between a contractor and subcontractors. His Honour found, further, that the conduct was not ‘legitimised’ by concerns about safety. His Honour appeared, therefore, to regard the conduct as illegitimate because it constituted, at least in a practical sense, an interference with contractual relations and with the normal expectation that subcontractors would perform their works without outside intervention. There was no appeal.

94    Whilst we appreciate that that case was mentioned in argument as illustrative of the concept of illegitimacy, its circumstances were entirely different from those in these appeals and it has no relevant parallels with the present case. It is not desirable that we attempt to forecast how a circumstance of that kind might be viewed in any future case, or whether in some future case the same view would be taken about what might constitute illegitimate conduct which might evidence an intent to coerce.  …

134    The requirement that the threatened action be unlawful, illegitimate or unconscionable is to be assessed objectively. The necessity to prove the objective requirement is not contentious in this proceeding. At issue is the content of the subjective requirement (if any) and the question of which party bears the onus of proof in respect of it.

135    The proposition that proof of an “intent to coerce” for the purposes of s 348 of the FW Act must necessarily involve an exertion of pressure involving conduct that is unlawful, illegitimate or unconscionable was recently considered by the High Court in Esso Australia Pty Ltd v Australian Workers’ Union (2017) 350 ALR 404. Kiefel CJ, Gageler, Keane, Nettle and Edelmann JJ said (at [61]):

The idea that the action must be unlawful, illegitimate or unconscionable to amount to coercion within the meaning of s 343 or s 348 of the Fair Work Act derives from McHugh JA’s statement in Crescendo Management Pty Ltd v Westpac Banking Corporation of the elements of common law economic duress. It has since been held that the same applies to ss 343 and 348; although it is not immediately apparent why that should be so.  …

(footnotes omitted, emphasis added)

136    Their Honours went on to suggest reasons why s 348 should not be construed so as to import such a requirement. Ultimately, however, their Honours determined (at [61]) that it was unnecessary for the disposition of that matter to decide the question and so the expressions of doubt concerning the correctness of the decisions of this Court must be regarded as obiter. I remain bound to follow the judgments of the Full Court of this Court in Victoria v CFMEU and Hall and so will proceed on the basis that the action threatened to be taken or threatened to be organised must be objectively unlawful, illegitimate or unconscionable. Having said all that, as Esso makes clear (at [2]), the mental element of intention or knowledge does not attach to that objective circumstance:

… a contravention of … s 348 is constituted of organising, taking or threatening action against another person with intent to negate the other person’s choice. It is unnecessary that the person organising, taking or threatening the action know that the action is, or intend that the action be, unlawful, illegitimate or unconscionable …

See also [61].

Onus of proof

137    The respondents submitted that it remains necessary for the Commissioner to establish that the officials had subjective knowledge of the particular facts and circumstances that would render the threatened action objectively unlawful, illegitimate or unconscionable. On the present state of the authorities, that submission is to be accepted. Whilst in Esso the High Court proceeded on the basis that the onus of proving any such knowledge would (subject to a series of assumptions) fall on the alleged contravener “as s 361 requires”, that case did not involve a “threat” to take or organise action.

138    The issue is whether s 361 operates to reverse the onus of proof in a case where it is alleged that a person threatens to take action.

139    Section 361 relevantly provides:

Reason for action to be presumed unless proved otherwise

(1)    If:

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

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

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

…

140    The respondents submit that, on its terms, s 361 applies to cases where action is in fact taken or in fact organised, and does not apply in cases where action or the organisation of action is merely threatened. There are divergent views expressed by single judges of this Court on that point.

141    The earliest judgment to which I was taken is Director of Fair Work Building Inspectorate v Construction, Forestry, Mining and Energy Union (The Red & Blue Case) [2015] FCA 1125. Justice Jessup, in the context of considering s 355 of the FW Act and the phrase “threaten to organise or take”, expressed the view that s 361 did not apply to a threat to take action. His Honour said:

111    In making findings as to Mr Edwards’ intent on 14 June 2013, I have placed no reliance on s 361 of the FW Act. In the submissions made on behalf of the applicant, it was treated as self-evident that s 361 applied to so much of s 355 as dealt with the matter of intent. Although counsel for the respondents said nothing on the subject, I regard the position as unclear at best. Section 355 makes a distinction between organising and taking action, on the one hand, and threatening to do so, on the other hand. Section 361 applies only to the mental element involved in taking action. In terms, it does not apply to a threat to take action. Historically, the prohibitions now to be found in s 355 were located in s 43 of the Building and Construction Industry Improvement Act 2005 (Cth) (‘the BCII Act’). Their antecedents were not in Pt 16 of the Workplace Relations Act 1996 (Cth) (‘the WR Act’), to which the reverse onus provision, then s 809, applied. No such provision applied to s 43 of the BCII Act. Section 361 now does apply to s 355, of course, but its extension beyond its actual terms, ie to threats, would be more than a mere continuation of a pre-existing legislative regime. It would be law reform of a kind which went unmentioned in the relevant Explanatory Memorandum. The result of applying s 361 as proposed by the applicant would, of course, be to expose a respondent to penal liability in a case in which the relevant applicant had not independently proved the facts relied on. Before taking such a step, and in the face of the plain language of s 361, I would require a more definite indication of legislative intention than the history of the legislation, and the parliamentary materials, disclose.

…

114    In relation to Mr Edwards’ intent, I have found that his relevant wrongdoing under s 355 was by way of organising, rather than of directly taking, action. The question arises whether the reverse onus provisions of s 361 apply to conduct which amounts to organising someone else to take action but not to the taking of action as such. They do not do so in terms. What I have said about threats in para 111 above applies equally, mutatis mutandis, here. For reasons which I there expressed, I am not disposed to rely on s 361. But the applicant’s case is a sufficiently obvious one, in my view, to sustain the inference, which I draw, that Mr Edwards’ intent was to negate Red & Blue’s choice in the matter of the employment of Mr Cannon. From the tenor of Mr Edwards’ conversation with Mr Notarfransesco on 14 June 2013, Red & Blue would reasonably have supposed that the treatment it received at the hands of Mr Harris at the La Scala site was neither isolated nor referable to some local difficulty arising on that site as such. I find that, in organising that action, Mr Edwards intended to negate Red & Blue’s choice, and thus to coerce it.

142    The views expressed by Jessup J as to the proper construction of s 361 of the FW Act are properly to be considered obiter: his Honour expressly disavowed reliance upon s 361 and decided the matter on a different basis.

143    The question was next considered by White J in Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2015] FCA 1293 (Lend Lease). Expressing a contrary view to that expressed by Jessup J, his Honour said:

101    The respondents submitted that, because s 361 referred only to the taking of ‘action’, it could have no application to a threat to take, or to organise to take, action in contravention of s 348.

102    In my opinion, this submission should not be accepted. The word ‘action’ is used in s 361(1) without qualification. This Court should not readily impose a limitation which the legislature itself has not imposed so as to exclude from the operation of s 361 actions which consist of threats.

103    Counsel submitted that the legislature may have intended to draw a distinction between action, on the one hand, and threats to take action, on the other because the purpose for which a threat is made will often be apparent in the terms of the threat itself, whereas that may not always be so in the case of actions. I doubt that this provides a sound basis for the distinction which the respondents sought to draw: it is commonly the case that the purpose for which a threat is made is not disclosed in the terms of the threat but is to be implied from a range of antecedent, or even subsequent, circumstances. Contrary to the respondents’ submission, the Minister’s statement in the Explanatory Memorandum for the introduction of the Fair Work Bill 2008 does not provide support for their submission. In relation to the then cl 361, the Minister said:

Clause 361 reverses the onus of proof applicable to civil proceedings for a contravention of Part 3-1. It is intended to broadly cover s 809 of the WR Act.

Section 809 was the counterpart provision in the Workplace Relations Act 2006 to s 361 in the FW Act. As is apparent, the Minister did not draw a distinction between the kinds of conduct to which s 361 may apply. Further still, s 809 of the former Workplace Relations Act 1996 (Cth) did not draw that distinction.

104    I observe that s 361 has been applied by this Court in relation to threatened action under s 348 in Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2015] FCA 225 at [264]-[265] (Tracey J) and CFMEU (No 2) at [100] (Mansfield J). It seems however, that the point now raised by the respondents in this case was not raised in either of those cases.

144    It is common ground between the parties that the reasoning of White J in Lend Lease is obiter. I will proceed in accordance with that common position.

145    In the next decided case, Australian Building and Construction Commissioner v Parker [2017] FCA 564, Flick J said:

105    Some attention has been given to the circumstances in which s 361 operates. According to its terms, s 361 applies where it is alleged that ‘a person took, or is taking, action for a particular reason or with a particular intent’. Some provisions of the Fair Work Act do not require proof of any particular reason or intent. Other provisions have an element of intent as but one of the elements which needs to be established in order to make out a contravention. Section 355 is an example. That section contains, as alternatives to the manner in which a contravention may occur, either a ‘threat to … take … action’ or the taking of action ‘with intent’ to coerce. In such circumstances, s 361 is confined in its operation to ‘reversing the onus of proof’ to the element of taking action with intent and does not apply to a threat to take action. Such was the view of Jessup J in Director, Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2015] FCA 1125, (2015) 254 IR 200 at 231.

…

106    This approach taken to the construction of s 361 in respect to s 355 is, with respect, correct. Section 355 by its terms is expressed to cover a broader range of conduct than is the area of operation of s 361. Section 361 should be confined to the circumstances which its terms expressly cover.

107    Further, section 361 does not apply to claims for accessorial liability under s 550 of the Fair Work Act: Port Kembla Coal Terminal Ltd v Construction, Forestry, Mining and Energy Union [2016] FCAFC 99 at [448] per Rangiah J. See also: Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Visy Packaging Pty Ltd (No 3) [2013] FCA 525 at [241], (2013) 216 FCR 70 at 117 per Murphy J.

146    The Commissioner acknowledges (correctly) that the above passage forms a necessary part of the ratio of the judgment in Parker. I am nonetheless urged by the Commissioner to follow the reasoning of White J in Lend Lease on the basis that the construction favoured by White J is correct. I decline to do so. Whether or not the obiter reasons in Lend Lease are correct, the alternative construction preferred by Flick J in Parker is not plainly wrong and so should be followed by another single judge of the Court.

147    For completeness, I should note that the reasoning in Parker has been followed in a number of subsequent decisions, including on the basis that it is not plainly wrong: see Construction, Forestry, Mining and Energy Union v De Martin & Gasparini Pty Limited (No 2) [2017] FCA 1046 at [364] (Wigney J); Australian Building and Construction Commissioner v Upton (The Gorgon Project Case) [2017] FCA 847 (at [119]) (Barker J); Australian Building and Construction Commissioner v O’Connor (No 3) [2018] FCA 43 at [128] (Besanko J).

Conclusions on liability

Mr McDermott

148    The pleaded case against Mr McDermott is that, on 30 November 2015, he said to Mr Jones words to the effect “you’re not up to standard, you need a larger lunch room with a separate office, a first aid room with a stretcher and a plumbed in toilet” and that he went on to say “If this isn’t done by Wednesday I will shut the site down”: SOC [12]. I am satisfied that Mr McDermott said words to the effect pleaded against him.

149    Whether or not the words constitute either a threat to organise action or a threat to take action is to be determined objectively.

150    Considered in context, it is reasonable to infer, and I so find, that the words constituted a threat by Mr McDermott to take steps to ensure that work on the project would cease until the amenities were improved. The words convey a threat in the sense that they declare an intention to inflict punishment, pain or loss: see Liquor Hospitality and Miscellaneous Union v Arnotts Biscuits Ltd (2010) 188 FCR 221 at [53].

151    Notwithstanding his use of the personal pronoun, I do not consider the threat should be understood as meaning that Mr McDermott would or could singlehandedly force a cessation of work on the site. Rather, the threat should be understood as a threat to organise others to bring about that outcome. Mr McDermott did not otherwise identify the steps he could or would personally take, nor the steps he could or would organise others to take.

152    The Commissioner submits that the threat should be understood as a threat to take or organise action that was unlawful, illegitimate or unconscionable, including “illegal industrial disruption”.

153    The difficulty is that the outcome of work ceasing on the site could be achieved by Mr McDermott by means legitimate or illegitimate, by means lawful or unlawful, or by means conscientious or unconscionable. The Commissioner has not pointed to anything in the words themselves to support the conclusion that the threat was one to “shut the site down” by engaging in or organising activities objectively bearing the necessary quality of unlawfulness or illegitimacy. Nor has that aspect of the Commissioner’s case been proven by reference to all of the surrounding circumstances. I am not prepared to infer that the nature of the action threatened by Mr McDermott should be inferred from action in fact taken or organised by Mr Gava and Mr O’Connor some five days later. If I am wrong in declining to draw that inference, for reasons that follow, I do not consider the action taken by the other officials to bear the requisite objective qualities in any event.

154    I am not satisfied that this element of the alleged contravention is established.

155    Accordingly, I do not need to determine whether the Commissioner should or could show that Mr McDermott subjectively possessed knowledge of the facts and circumstances that would render the threatened conduct unlawful, illegitimate or unconscionable. The objective facts and circumstances to which any such knowledge might attach have not been established.

156    It follows that the application for a declaration of contravention against Mr McDermott must be dismissed. So, too, must that part of the Commissioner’s case against the Union founded on the conduct and state of mind of Mr McDermott.

Mr O’Connor and Mr Gava

157    Paragraph 16 of the SOC alleges the conduct said to constitute contraventions of s 348 of the FW Act by Mr O’Connor and Mr Gava. It reads:

Particulars

16.1.    Upon first attending the Site Gava and O’Connor engaged in a verbal exchange with Jones and the Sun Project Manager Sam Nicholls (Nicholls), outside the site office, in words to the effect:-

O’Connor:    We fucking told you about the amenities and you haven’t done anything about it.

Nicholls:    You’re a hot head and you’re the sort of person who won’t never get anything resolved and I’m not talking to you anymore.

Nicholls:    Where’s your right of entry? I have received no notification from you. I want you both to leave the site.

Gava:        It’s under the WHS Act.

16.2    During the above exchange either:

16.2.1.     O’Connor said words to the effect ‘If you don’t abide by what we’re telling you we’ll shut you down we know the rules better than safework do’; or

16.2.2.    O’Connor or Gava, but it is not possible to identify which, said words to the effect ‘If you don’t abide by what we’re telling you we’ll shut you down we know the rules better than safework do’.

16.3    Later that morning, shortly after Gava and O’Connor had held discussions with the Project Workers, Gava said to Nicholls words to the effect ‘If you don't have a plumbed toilet by tomorrow the worker’s won’t turn up the site will be shut down’. This exchange occurred outside the Site office.

16.4.    Another exchange occurred between Gava, O’Connor and Nicholls outside the Site office about 20 minutes later, in words to the effect:-

Gava:    We’ve decided during the meeting that the guys won’t return to work unless a plumbed toilet is on site by tomorrow morning the guys have decided.

Nicholls:    A plumbed toilet is being installed on Friday.

Gava:        They will not be returning to work until it is installed.

O’Connor:    We require clear segregation between equipment and personnel and we want a second site hut you can’t have your lunch room in with your site office.

Nicholls:    It is a tight site but we are complying with the legislation.

O’Connor:    That’s not our problem you have to provide more facilities.

158    Paragraph 16.1 is to be understood as alleging the context in which the alleged threats were made.

159    With the leave of the Court, and over the objection of the respondents, [16.2.2] of the SOC was inserted after the conclusion of evidence: Australian Building and Construction Commissioner v McDermott [2017] FCA 504. It reflects Mr Jones’ uncertain recollection as whether it was Mr Gava or Mr O’Connor who said the pleaded words. No declaration of contravention of s 348 of the FW Act is sought against Mr Gava in relation to the amended plea.

160    As I have stated elsewhere in these reasons, I am satisfied on the balance of probabilities that either Mr Gava or Mr O’Connor said words to the effect pleaded at [16.2.2] of the SOC. However, I cannot determine which of the two did so.

161    The liability of the Union in respect of this aspect of the allegations must nonetheless be considered. Its liability as an accessory depends on the combined operation of s 550 and s 793 of the FW Act. They provide:

550 Involvement in contravention treated in same way as actual contravention

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

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.

…

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.

162    It is the Commissioner’s case that the Union was involved in a contravention of the FW Act within the meaning of s 550(1) and s 550(2)(c), in that it was “knowingly concerned” or party to the contravention.

163    In a proceeding alleging accessorial liability, it is not necessary to join the principal contravener: Australian Building and Construction Commissioner v McDermott (No 2) (2017) 252 FCR 393 at [104] - [118]. It is, however, necessary to establish that a principal contravention has occurred and that the person alleged to be liable as an accessory had actual knowledge of the essential facts constituting that contravention: Yorke v Lucas (1985) 158 CLR 661 at 670 (Mason ACJ, Wilson, Deane and Dawson JJ). Similarly, in order to establish that the Union is vicariously liable (and assuming common law principles of vicarious liability apply to the prohibition in s 348), it remains necessary to show that there has in fact been a contravention by a person whose actions or omissions the Union may be vicariously liable for.

164    The conceptual difficulty with the accessorial liability aspect of the Commissioner’s case is that the state of mind attributable to the Union, is the state of mind of the person who is said to have engaged in the particular conduct (FW Act, s 793(2)), and yet the Court cannot find whether it was Mr Gava or Mr O’Connor who issued the threat in question. It is not to be assumed that the knowledge of the two officials is the same.

165    In the result, it is not necessary to resolve these questions. In my view, no principal contravention has occurred, irrespective of which of the two officials said the impugned words.

166    The threat did not expressly convey an intention to engage in or organise action that may objectively be assessed as unlawful, illegitimate or unconscionable. I nonetheless infer from all of the circumstances that the official who said the words intended to do what the officials in fact did a short time later: hold a meeting at which workers would be encouraged and organised to collectively “down tools” until such demands as the workers may make of Sun for the improvement of amenities on the site were met.

167    The Commissioner submitted that the threat was to organise or take action that was unlawful, illegitimate or unconscionable in two alternate respects. The first was that the threatened action constituted “unlawful industrial action”. The second was that the action constituted an illegitimate interference with the contractual relations between Sun and its subcontractors.

168    The expression “industrial action” is defined in s 19 of the FW Act. Relevantly, industrial action means a ban, limitation or restriction on the performance of work by an employee or on the acceptance of or offering for work by an employee, but does not include action by employees that is authorised or agreed to by the employer of the employees: FW Act, s 19(1)(b); s 19(2)(a).

169    The proposition that work should stop on the site was not the subject of any real contest or conflict between those workers who were employees and those who were their employers. Rather, those who were (or represented) employers formed an agreement or consensus, among others at the meeting, including their own employees. If there existed a conflicted position as to whether or not work should stop on the site, it existed between Sun (represented by Mr Nicholls and Mr Jones) and its subcontractors (represented by, at least, Mr Cubelic and Mr Vial). It has not been shown that the cessation of work awaiting the installation of a plumbed toilet was action that was not authorised by or agreed to by the workers’ employers. If I am wrong in that regard, it has not been shown that either Mr O’Connor or Mr Gava knew that the downing of tools they proposed would occur without the employers’ authorisation or agreement.

170    As to the submission that the officials illegitimately interfered with the contractual relations between Sun and its subcontractors, the difficulty with that submission is that the Court was not taken to any evidence defining the terms of those contractual relations. In the absence of evidence, I am not prepared to infer that there existed a contractual requirement that the subcontractors perform their work at specified times on specified days or that they could not cease work in the event of a dispute over the sufficiency of amenities including the provision of creature comforts. Whether or not the contractual relations included terms requiring the provision of a plumbed toilet rather than a chemical toilet is unknown. If there were dispute resolution processes agreed between Sun and its subcontractors, it has not been shown that such processes would have been breached by the action threatened. There is no evidence that Mr Nicholls or Mr Jones asserted any contractual rights against Mr Cubelic or Mr Vial when they each reported their intention to withdraw labour from the site until a plumbed toilet was provided.

171    Assuming the respondents’ submissions as to the fault element of the contravention to be correct, it has not been shown that the officials knew of the facts or circumstances that would render their threatened action unlawful, illegitimate or unconscionable in the manner suggested.

172    It follows that the conduct pleaded at [16.2.2] of the SOC does not amount to a contravention by an officer of the Union for which the Union may be liable as an accessory, or for which the Union may be vicariously liable, again assuming principles of vicarious liability otherwise apply in the particular statutory context.

173    Similarly, although I am satisfied that Mr Gava said the words pleaded at [16.3] of the SOC, I am not satisfied this conduct amounts to a contravention of s 348 of the FW Act. The two reasons I have given above in relation to the objective illegitimacy of the action apply equally to this allegation. A further reason to reject this part of the Commissioner’s case is that the words used by Mr Gava are more properly to be regarded as a report to Mr Jones and to Mr Nicholls of action that the officials had already organised. To the extent that the report conveyed a threat, the threat had by that time converted to one that the workers themselves were making. The workers’ threat was self-executing in the sense that there was no other action that Mr Gava threatened to personally take or organise. The same may be said of Mr O’Connor to the extent that he is said to be liable for this conduct.

174    I reach the same conclusions in relation to the allegation pleaded at [16.4] of the SOC.

175    It follows that none of the alleged contraventions of s 348 of the FW Act is established.

the SECTION 500 allegationS

176    The allegation that Mr Gava contravened s 500 of the FW Act is pleaded at SOC [36] in a manner incorporating, by cross-reference, other pleaded facts:

By reason of the matters pleaded in paragraphs 3.4, 14, 15, 17 to 22, and 24 to 28 above, Gava, as a permit holder exercising, or seeking to exercise, rights conferred by section 117 of the WHS Act in accordance with Part 3-4 of the Act or, further and/or in the alternative, exercising or seeking to exercise rights in accordance with section 484 of the Act, acted in an improper manner, in contravention of section 500 of the Act.

177    The other pleaded facts are to the effect that Mr Gava:

    Was the holder of a permit issued under the FW Act (SOC [3.4]), attended the site on 9 December 2015 (SOC [14]) and remained on site or within the immediate vicinity of the site until about 11:30 am (SOC [15]).

    Entered the site exercising or seeking to exercise rights conferred by s 117 of the WHS Act in accordance with Pt 3-4 of the FW Act (SOC [17]) and produced entry notices pursuant to s 117 of the WHS Act (SOC [18]).

    Organised or attempted to organise industrial action by arranging a meeting with workers on a vacant block adjacent to the site and saying words to the effect of “down tools and come and have a meeting” and “We leave the site until the amenities get fixed.” (SOC [19]).

    Was verbally and physically aggressive to Mr Nicholls after the meeting trying to get the s 117 forms back (SOC [20]).

    Entered the site for the purpose of exercising or seeking to exercise rights conferred by s 117 of the WHS Act in accordance with Pt 3-4 of the FW Act, and had discussions with workers (SOC [21]).

    Further or in the alternative, by doing so was seeking to exercise rights in accordance with s 484 of the FW Act (SOC [22]).

    Did not provide Sun with a notice on entry for purposes of s 487 of the FW Act (SOC [24]) and did not have a FWC exemption (SOC [25]).

    Did not hold discussions during scheduled breaks (SOC [26]).

    Failed to leave the site when asked (SOC [27] - [28]).

178    The summative allegation against Mr O’Connor is that (SOC [38]):

By reason of the matters pleaded in paragraphs 4.4, 14, 15, 17 to 21 and 23 to 28 above, O’Connor, as a permit holder exercising, or seeking to exercise, rights conferred by section 117 of the WHS Act in accordance with Part 3-4 of the Act or, further and/or in the alternative, exercising or seeking to exercise rights in accordance with section 484 of the Act, acted in an improper manner, in contravention of section 500 of the Act.

179    The cross-referenced paragraphs are to the effect that Mr O’Connor:

    Was the holder of a permit under the FW Act (SOC [4.4]), attended the site on 9 December 2015 (SOC [14]) and remained on site or within the immediate vicinity of the site until about 11:30am (SOC [15]).

    Entered the site exercising or seeking to exercise rights conferred by s 117 of the WHS Act in accordance with Pt 3-4 of the FW Act (SOC [17]) and produced entry notices pursuant to s 117 of the WHS Act (SOC [18]).

    Organised or attempted to organise industrial action by arranging a meeting with workers on a vacant block adjacent to the site and saying words to the effect of “come on were gunna have a meeting”, “Are we going to put up with these sub-standard facilities I’ve given these guys plenty of warning about the sub-standard amenities” and “Everyone pack up and go home until the builder fixes the problem.” (SOC [19]).

    Was verbally aggressive to Mr Nicholls after the meeting when attempting to get the s 117 forms back (SOC [20]).

    Entered the site for the purpose of exercising or seeking to exercise rights conferred by s 117 of the WHS Act in accordance with Pt 3-4 of the FW Act, and had discussions with workers (SOC [21]).

    Further or in the alternative, by doing so was seeking to exercise rights in accordance with s 484 of the FW Act (SOC [23]).

    Did not provide Sun with an entry notice on entry for purposes of s 487 of the FW Act ([24]) and did not have a FWC exemption (SOC [25]).

    Did not hold discussions during scheduled breaks (SOC [26]).

    Failed to leave the site when asked (SOC [27] - [28]).

180    The emphasis in [177] and [179] is mine.

181    It is not disputed that neither Mr Gava nor Mr O’Connor provided entry notices in accordance with s 487 of the FW Act. They each pleaded denials that they sought to enter the site in accordance with the right of entry conferred by s 484. Their provision of entry notices pursuant to s 117 of the WHS Act supports a conclusion that they were (at least) seeking to exercise rights to enter the site under the WHS Act and not pursuant to any right conferred by s 484 of the FW Act. In my view, the allegation that the officials were seeking to exercise rights of entry conferred by s 484 of the FW Act is not established on the evidence.

182    As to whether the officials were in fact exercising rights pursuant to s 117 of the WHS Act, that fact is asserted by the Commissioner and admitted by both Mr Gava and Mr O’Connor: SOC, [17]; Further Amended Defence, [17.2].

183    Although the trial of the Commissioner’s case proceeded on the basis that it was sufficient to show that the officials were seeking to exercise rights conferred by s 117 of the WHS Act, the pleaded allegation that the officials were in fact exercising such rights was never withdrawn. The effect of that plea and its admission is that the Court is to proceed on the undisputed basis that the essential facts preconditioning the entry under s 117 of the WHS Act were indeed present, such that the officials in fact had the right to do anything following their entry to the site as may be authorised by the WHS Act. The respondents submit that if the things said and done by them upon entering the site was so authorised, then it cannot be categorised as “improper” within the meaning of s 500 of the FW Act. I accept that submission.

184    The summative pleas at SOC [36] and [38] allege by cross-reference the conduct said to be “improper” without discriminating between the statutory provisions pursuant to which the officials entered or sought to enter the site.

185    Given the admitted fact that the officials entered the site in the actual exercise of rights conferred under s 117 of the WHS Act, it cannot be improper for the officials not to provide 24 hours’ notice in advance of their entry. Nor can it be improper for the officials to hold discussions during lunch breaks. Nor can it be improper for the officials to refuse to leave the site when told to do so by Mr Nicholls shortly after they arrived. These aspects of the officials’ conduct appear to be pleaded on the premise that the officials sought to enter the site in the exercise of the right under s 484 of the FW Act, a plea I have rejected.

186    There are three remaining aspects of the allegations to be considered. The first, is that the officials organised or attempted to organise industrial action by arranging a meeting with workers on a vacant block adjacent to the site and saying words to the effect that everyone go home until the amenities were fixed. The second is that Mr Gava and Mr O’Connor were verbally aggressive toward Mr Nicholls in their demands for the return of the entry notices. The third is that Mr Gava was physically aggressive toward Mr Nicholls.

No industrial action

187    The allegation pleaded at [19] of the SOC is not established because, for reasons I have explained, I am not satisfied that the officials told the workers to go home until the amenities were fixed, nor am I satisfied that the action organised or attempted to be organised by the officials constituted “industrial action” as that phrase is defined.

188    To the extent that the calling of the stop work meeting is alleged as a discrete incident of impropriety, I am not satisfied that the meeting occurred without the authorisation or agreement of the employers of the labourers who attended.

189    In the course of closing submissions, counsel for the Commissioner otherwise submitted that Mr Gava and Mr O’Connor acted in an improper manner by virtue of having entered the site in the exercise or purported exercise of a right of entry conferred by s 117 of the WHS Act but then “doing other things” that were not authorised by that Act. I apprehend that submission to raise an allegation going beyond the Commissioner’s pleaded case.

190    I must proceed on the admitted basis that the officials in fact exercised the right of entry under s 117 of the WHS Act and so were authorised to do the things set out in s 118. Although it is pleaded that the officials “held discussions with Project Workers”, that plea does not include allegations of fact or law that would render the discussions to be improper. More specifically, apart from the allegation that the officials organised “industrial action” (which is not established) it is not pleaded that the officials held discussions of a kind that were not authorised by s 118. The facts as I have found them may well establish a contravention of that kind. However, having regard to the nature of the proceedings and the circumstance that the Commissioner has already amended his plea after the conclusion of evidence I would not now grant the Commissioner an opportunity to further amend his case to include an allegation of that more general kind.

Verbal aggression

191    In R v Byrnes (1995) 183 CLR 501, the majority Brennan, Deane, Toohey and Gaudron JJ said (at 514 – 515):

Impropriety does not depend on an alleged offender’s consciousness of impropriety. Impropriety consists in a breach of the standards of conduct that would be expected of a person in the position of the alleged offender by reasonable persons with knowledge of the duties, powers and authority of the position and circumstances of the case.

192    The same principles apply to the assessment of conduct said to contravene s 500 of the FW Act: Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (Castlemaine Police Station Case) [2018] FCAFC 15.

193    On the facts as I have found them, the officials’ demands for the return of the forms occurred in circumstances where Mr Nicholls denied that he had them in his possession. I have found that the forms were indeed in Mr Nicholls’ possession. I am satisfied that the forms were visible to the officials at the time that Mr Nicholls denied possession of them. The officials’ verbal tirade increased in its intensity as Mr Nicholls maintained what may be fairly described as an obstinate and passive-aggressive stance.

194    In assessing “the standards of conduct that would be expected of a person in the position of the alleged offender by reasonable persons with knowledge of the duties, powers and authority of the position and circumstances of the case”, it is relevant to have regard to the particular situation to which the officials responded. In my view, the standard is not one that would in all cases prevent a permit holder from forcefully expressing a point of view, arguing a position or making a demand. Each case much be assessed in its proper context. The present context is one in which the officials verbally responded to the behaviour demonstrated by Mr Nicholls. They objected to it in the most forceful terms. In my view, nothing in s 500 of the FW Act prohibited them from doing so.

195    The officials’ verbal response was not disproportionate. It did not have the effect of inhibiting any other person in the performance of his or her statutory duties: cf Castlemaine Police Station Case. The officials did not descend into abusive personal slurs or aspersions harmful to Mr Nicholls’ reputation. In all of the circumstances, I do not consider the conduct to undermine the objects of Pt 3-4 of the FW Act so as to support a finding of contravention against s 500.

196    I do not consider the assessment of the propriety of the officials to be substantially affected by Mr Nicholls’ legal entitlement (or lack thereof) to retain possession of the forms. The officials in this case are not alleged to have acted improperly merely by demanding something to which they were not in law entitled. The gravamen of the allegation (as expressed in the originating application) is that they acted, on the whole, in an improper manner by being verbally aggressive towards Mr Nicholls in the course of making the demand.

Physical aggression

197    I have found that Mr Gava lunged at Mr Nicholls and that it was the force of Mr Gava’s body that kept Mr Nicholls pressed against the fence, and the force of his grip that caused Mr Nicholls’ watch to break.

198    It is to be recalled that the case for Mr Gava was that the incident did not occur as other witnesses said that it had. Having rejected that case, it is not now open to Mr Gava to say that he did accost Mr Nicholls but did so in the exercise of, or for the defence of, a legal right to secure possession of the forms. It is difficult to conceive of a case in which the use of physical force against the occupier of a site could be categorised as anything other than acting in an improper manner, although, as I have said, each case is to be decided in its own context. Whatever ends were sought to be achieved by Mr Gava, the use of force could not, on any reasonable view, be justified to achieve them.

199    I am satisfied that Mr Gava contravened s 500 of the FW Act by engaging in the conduct pleaded at [20] of the SOC insofar as that plea contains an allegation that Mr Gava was physically aggressive.

Liability of the Union

200    In accordance with the principles stated in McDermott (No 2), I do not consider the common law of vicarious liability to apply to the prohibition in s 500 of the FW Act.

201    In relation to the allegation of accessorial liability, I apply the principles stated by Siopis J in Australian Building and Construction Commissioner v Harris [2017] FCA 733 and McDermott (No 2) at [94] - [125]. The conduct of Mr Gava is attributable to the Union in accordance with s 793(1) of the FW Act. By the operation of s 793(2), the Union is to be attributed with knowledge of the essential facts constituting the contravention, namely Mr Gava’s knowledge that he entered the site in the exercise of rights in accordance with Pt 3-4 of the Act and that he was physically aggressive toward Mr Nicholls as alleged. I conclude that the Union was knowingly concerned with Mr Gava’s contravention within the meaning of s 550(2)(c) of the FW Act. It follows that it, too, contravened the s 500 of the FW Act on 9 December 2015.

202    The Union has not otherwise contravened the FW Act in any other respect alleged by the Commissioner.

ORDERS

203    The parties will be invited to make submissions as to the imposition of penalties in respect of the single contravention committed by Mr Gava and the single contravention committed by the Union as identified in these reasons.

204    The proceedings against the respondents should be dismissed except in respect of those contraventions.

Associate:

Dated:    26 October 2018

SCHEDULE OF PARTIES