FEDERAL COURT OF AUSTRALIA

Construction, Forestry, Mining and Energy Union v Director of the Fair Work Building Industry Inspectorate (as successor to the Australian Building and Construction Commissioner) [2012] FCAFC 178

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    The following sub-paragraphs of paragraph 1 of the orders made by the Court on 7 October 2011 be set aside:

Section 38 of the Building and Construction Industry Improvement Act 2005 (Cth)

(b)    the 219th respondent (Upton) by making the statement at a meeting with representatives of CBI on 13 October 2008, which is defined at paragraph 98 of the reasons for judgment (the statement), pursuant to section 48(2) of the BCII Act, was involved in a contravention of section 38 of the BCII Act.

(c)    by reason of Upton making the statement, and by operation of sections 48(2) and 69(1) of the BCII Act, the 218th respondent (CFMEU) contravened section 38 of the BCII Act.

Section 494 of the Workplace Relations Act 1996 (Cth)

(g)    Upton, by reason of making the statement, was involved in a contravention of s 494(1) of the WR Act and therefore contravened that provision.

(h)    by reason of Upton making the statement, and by virtue of section 826(2) of the WR Act, the CFMEU contravened section 494(1) of the WR Act.

Section 719 of the WR Act

(l)    by reason of Upton making the statement, and by virtue of section 826(2) of the WR Act, the CFMEU contravened clauses 8(4) and 9 of the CFMEU Collective Agreement, and are thereby liable to a penalty under section 719 of the WR Act.

3.    In lieu thereof, it is ordered that the applicant’s claims against the 219th respondent and the CFMEU be dismissed.

4.    Subject to orders 5 to 7, costs be reserved.

5.    The appellants file and serve within 7 days from today such written submission (of not more than 2 pages), if any, as they propose to make either in respect of the costs of the appeal or in respect of the proceedings before the primary judge.

6.    In default of the filing of any such submission by the appellants there be no order as to costs.

7.    In the event that the appellants file and serve a written submission in respect of costs, the respondent file and serve such submission (of not more than 2 pages), if any, as he proposes to make in reply in respect of costs within a further 7 days.

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

REASONS FOR JUDGMENT

Introduction

1    This appeal is from a number of orders made by a judge of this Court on 7 October 2011. The case concerned unlawful industrial action by certain employee respondents on eight days in October 2008 by failing to attend for work at Woodside Energy Ltd’s Phase V Expansion Project at the Burrup Peninsula in Western Australia on one or more days on which they were rostered to work.

2    CBI Contractors Pty Ltd (CBI) was under contract with Woodside Energy Ltd to provide mechanical construction services at the Burrup Peninsula. The individuals referred to later in these reasons are as follows. Ms Luskan was the CBI Administration Manager, Mr Marcano was the CBI Project Manager and Mr Stuurstraat was the CBI Construction Manager. Mr Upton, the second appellant, was a Construction, Forestry, Mining and Energy Union (CFMEU) delegate. Mr Johnson was an Australian Manufacturing Workers Union (AMWU) delegate and Mr Brown was a building employee and industry participant, CBI employees representative. Mr Windus was an AMWU organiser.

3    As a result of legislation enacted after the commencement of these proceedings, an official known as the Director of the Fair Work Building Industry Inspectorate has become the successor to the original applicant in the court below and the original respondent to the appeal, the Australian Building and Construction Commissioner. With the consent of the parties, we earlier made an order amending the name of the respondent to the appeal accordingly.

4    The questions on appeal are whether the primary judge erred in finding that the second appellant (Mr Upton) was involved in a contravention of s 38 of the Building And Construction Industry Improvement Act 2005 (Cth) (the BCII Act) and s 494(1) of the Workplace Relations Act 1996 (Cth) (the WR Act) and whether, as a consequence, the first appellant (the CFMEU) contravened those provisions and contravened clauses 8(4) and 9 of the CFMEU Collective Agreement and, in relation to the latter contravention, was thereby liable to a penalty under s 719 of the WR Act?

5    Because the question of any penalties remained to be determined by the primary judge the orders were interlocutory and leave to appeal was required.

6    The respondent consented to leave to appeal being granted. Applying the principles in Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 to guide the exercise of our discretion, we grant leave to appeal on the basis that the judgment below is attended with sufficient doubt to warrant its reconsideration and substantial injustice to the appellants would result if leave were refused and the judgment was wrong. We also grant the necessary extension of time so as to permit the filing of the “Notice of Appeal” on 31 October 2011.

The Notice of Appeal

7    The grounds of appeal, as refined in the course of oral submissions, were as follows:

The learned Judge erred in applying s 48(2) of the BCII Act by finding that Upton and thereby the CFMEU:

(a)    aided and abetted the employee respondents to engage in unlawful industrial action by Upton’s conduct in making the Statement at the meeting with CBI officers on 13 October 2008;

(b)    by making the Statement at a meeting with representatives of CBI on 13 October 2008 linked himself in purpose to the employee respondents’ Threat;

in that the learned Judge otherwise found that:

(i)    the Threat made by the employee respondents on 13 October 2008 did not contain a specific timeframe;

(ii)    the Threat was not one being made by Upton or the CFMEU;

(iii)    Upton mentioning the Threat to the CBI employers and later on 13 October 2008 was not an act to assist what had been threatened;

(iv)    Upton took it upon himself to make the Statement even though he had not been asked to do so by the CFMEU members he represented;

(v)    although the employee respondents took unlawful industrial action on 14 October 2008, Upton did not organise a meeting of the employee respondents on 14 October 2008, he did not tell the employee respondents anything they did not already know, nor did he conduct the meeting to facilitate a vote of the employee respondents on whether to engage in industrial action on 14 October 2008;

(vi)    Upton did tell the employee respondents to return to work at their meeting on 14 October 2008.

The respondent filed no notice of contention. The notice of appeal adopts two terms, “Statement” and “Threat”, which were defined in the pleadings and later adopted by the primary judge in His Honour’s reasons for judgment. We set out below at [9] and [10] under the heading “The pleading” extracts from the Further Amended Statement of Claim which contain the definitions of these terms.

8    The relevant paragraphs of the reasons for judgment of the primary judge were:

Upton and CFMEU

[60]    The Commissioner submits that the “better inference” is that, between 1 and 10 October 2008, Upton informed his superior Kevin Reynolds in Perth that a threat of industrial action had been made on 1 October 2008 and that accordingly, the CFMEU agreed to Upton’s participation in the employees meeting on 13 October 2008 in the knowledge by Reynolds that industrial action was in contemplation. I would not draw such an inference. Upton did not make the Threat. The employees had not made the Threat.

…

CBI employees meeting – 13 October 2008

…

Upton

[69]    I have found that, prior to 13 October, Upton knew nothing of imminent strike action. He arranged for the issue of a Right of Entry Notice on 10 October 2008. He had been at the 1 October meeting when Windus made the Threat. He was, on his written evidence, and although he first denied it, also ultimately in his oral evidence upon cross-examination, asked to attend the 13 October meeting by Brown and others on the Site, for a reason which he no longer recalled. Brown well knew of the CBI employees claims in relation to the redundancy issue. That he did not mention to Upton why he and others wanted him to come to a meeting on the Site on 13 October is not credible. I do not accept Upton’s evidence that he did not know the reason for calling the meeting. I find that he knew it was a meeting of CBI employees including CFMEU members concerning the redundancy issue but not that he knew that strike action was to be discussed. There was no evidence of communications between Upton and Windus, or anyone else, prior to or on the morning of 13 October, absent which, no inference of knowledge on the part of Upton of contemplated strike action could arise. However, I do not believe his oral evidence that after 1 October he had made enquiries and had thought that the redundancy issue had been resolved. He did not expand upon the nature of his enquiries. There is no evidence to support such a conclusion. He did not include this assertion in his written statement. All the evidence points in the opposite direction: CBI had at all times rejected the redundancy claim.

[70]    The Commissioner also contends that Brown and Johnson knew before the meeting that it was likely to result in a resolution to strike if CBI did not meet the claim and that this is evident from the events concerning the arrival of Windus in Karratha.

[71]    The meeting was about the redundancy issue and, as it transpired, related strike action. Upton arrived at the meeting place before anyone else. According to Upton the employees said that they wanted to be paid their redundancies and they wanted an answer by the end of the day or they were going out. However, he was adamant that the employees certainly did not specify a time frame for such strike action. I accept this evidence. No one else gave evidence of what occurred at the meeting. He said that several of the employees had a demand they wanted him to convey to CBI about the redundancy issue. The employees in attendance included AMWU and CFMEU members as well as non-union employees.

[72]    When Upton gave evidence during his cross-examination that at this meeting he “… told them to return to work and that we will pass on your message and we will try and work through it and get it fixed” it was not put to him that this was false or somehow mistaken. I accept his evidence on this point. In fact the men did go back to work.

[73]    Further, on the issue of the threatened strike, counsel for the Commissioner put it to Upton that he did not dissociate himself from the employees by walking away as follows:

“You didn’t say to them, “What you’re proposing is unlawful. I don’t want any part of it,” and walk away, did you?---I told them that the CFMEU is - that they’re not to strike and they’re to stay at work. That is a very firm position that all organisers are told to tell everyone that thinks of any industrial action.”

[74]    That evidence was not then challenged further by the Commissioner and accordingly I accept it.

[75]    It is pleaded against Upton that he addressed this meeting in respect of the Claim and Threat. I find that whilst the Claim was raised at the meeting by some of the employees, Upton referred to the Threat only in the terms I have described, namely, in effect, that the employees should not carry it out.

…

Meeting with CBI officers 13 October 2008

[79]    After that meeting with the CBI employees, a meeting was held attended by Upton, Brown, Johnson and CBI officers Marcano, Stuurstraat and Luskan.

…

[82]    All three of those witnesses said that Upton threatened strike action if CBI did not agree to the demanded redundancy proposal by close of business that day. To that extent, and in context, it accords with the evidence of Upton. However, their evidence extends further. Although there are differences in some respects as between these three CBI witnesses, each made a written record that Upton threatened strike action involving a strike for a week, return to work for a day to negotiate, and a strike for another week if negotiations were unsuccessful.

…

[86]    In cross-examination, Luskan agreed that at the 13 October 2008 meeting when Upton spoke of the CBI employees’ Claim, in effect, as she understood it, Upton was just relaying what those employees had discussed at their morning meeting.

…

[91]    In cross-examination, Stuurstraat too agreed that at the 13 October 2008 meeting when Upton spoke of the employees’ Claim he understood him to be relaying what the employees had discussed at their morning meeting and that Upton did not say “The Union wants the boys’ money paid”. He also agreed that Upton did not say that the CFMEU fully supports the men going on strike if CBI did not give them an answer.

…

[95]    …The Claim and Threat were conveyed by a Union representative but the Threat was not, as I have found, one being made by him or by the CFMEU.

[96]    Upton denied that he had referred to any specific time frame for strike action. I do not accept this evidence. This does not mean that I rejected the totality of his evidence. I prefer the relatively contemporaneous version in the emails of Luskan, Stuurstraat and on this point also that of Marcano. The Threat [Statement], so far as it had become a threat to strike for specific periods, was made by Upton and therefore also by the CFMEU. It was not the message he was asked to convey by those he represented. Nonetheless in his capacity as a CFMEU organiser he did so.

…

The pleading

13 OCTOBER 2008

…

[100]    I find that Upton mentioned the Threat but in a way that it was apparent that he was not making the Threat on behalf of the employees but merely informing the CBI officers that the employees had asked that the Threat be conveyed to CBI. This was not an act to assist what had been threatened. It was no more than an act of communication. It was so conveyed in the context of further discussion as to the Claim. I find however, that Upton took it upon himself to make the Statement although he had not been asked to do so by the CFMEU members he represented.

…

Meeting of CBI employees – 14 October 2008

[116]    On 14 October 2008, at about 5.30 am, there was a meeting of CBI employees at the Bay Village camp site. Upton, Johnson and Brown attended. There was no work that day. The Commissioner submits that the proper inference is that the employees were told by Upton that CBI did not agree to the Claim and, pursuant to the employees’ decision on 13 October 2008, they went on strike. I find it likely that Upton did tell them or rather he confirmed CBI’s position. Before the meeting, the employees had already received the letter signed by Marcano dated 13 October 2008 setting out CBI’s refusal to acknowledge that Phase V was finished or that redundancies would be paid.

…

The pleading

14 OCTOBER 2008

…

[117]    Upton did not arrange the 14 October meeting. There was no direct evidence, apart from his own, as to what occurred at that meeting. He did not tell the employees anything that they did not already know. There is no evidence that he arranged a vote concerning a strike, or that, contrary to his evidence, he did not warn the employees that a strike would be illegal. There is no basis to infer the opposite.

[118]    I accept his evidence that he advised the employees that they should allow him and the other representatives more time to speak with CBI management and that he told the employees to return to work. It was not put to him in cross-examination that he did not do these things.

[119]    I find that whilst Upton attended this meeting, Windus did not. Upton did not conduct the meeting to facilitate a vote of employees on whether to engage in industrial action. Nor did he authorise Windus, obviously, to facilitate such a vote in respect of non-CFMEU employees. Upton did not say that the CFMEU would support them if they took industrial action.

[120]    In any event, the employees, including Johnson, did take strike action on 14 October 2008.

…

Windus and the AMWU

…

[231]    I have found that Windus made the Threat pleaded in the context of the Representation and Claim. However, there was then no contravention by the employees of a civil penalty provision for the purposes of s 48(2) of the BCII Act. Nor had they threatened a contravention to which, if it had been put into effect, the Threat could relate. The Threat, in that case, was not linked in purpose with the employees. Accordingly, Windus was not a “person who is involved” in such a contravention. Accordingly, neither he nor the AMWU cannot [sic] in those circumstances be liable. The other allegations pleaded were not established.

…

Upton and CFMEU

…

[237]    I find that the only contravention by Upton and thereby the CFMEU was that he aided and abetted the employees to engage in the October industrial action by his conduct in making the Statement at the meeting with CBI officers on 13 October 2008. At that time and by that conduct he linked himself in purpose to the employees’ Threat. None of the other alleged contraventions have been established. The CFMEU is deemed by s 69 of the BCII Act to have engaged in the same conduct. The employees had threatened an actual strike. The strike was imminent as the employees had stated that if they did not get a (positive) answer to their claim by the end of the day (13 October) they “were going out”. Upton, Johnson and Brown each knew that to be the case: Sent v Jet Corporation [of Australia Pty Ltd (1984) 2 FCR 201].

We have annotated paragraph [96] of this excerpt with a change (the deletion of “Threat” and the insertion of “Statement”) which, reading the passage as a whole and having regard to the terms defined in the pleadings, we consider truly reflects the finding his Honour intended to make but which has been misdescribed in the reasons for judgment.

In Sent v Jet Corporation of Australia Pty Ltd (1984) 2 FCR 201 at 207 Smithers J (Sweeney J concurring) said:

But it is clear that to be involved in a contravention consisting of misleading and deceptive conduct it is necessary not only that the person concerned should know that a party proposed to engage in a contravention but he should in some positive way, be associated therewith.

The pleading

9    Paragraph 98 of the reasons for judgment of the learned primary judge set out the following paragraphs from the Further Amended Statement of Claim:

13 October 2008

28.    Later on 13 October 2008, at a meeting of Upton, Johnson and Brown with Luskan, Marcano and Stuurstraat:

(a)    Upton orally repeated the Claim;

(b)    Brown orally repeated the Claim;

(c)    Brown orally repeated the Representation;

(d)    Upton orally repeated the Threat; and

(e)    Upton stated that the Threat would be implemented by the Employee Respondents refusing to attend work for one week, returning to work for one day, then refusing to work for another week unless the Claim was met by CBI (Statement).

29.    At that meeting, Upton, Johnson and Brown each, by his conduct, made the Representation, the Claim, the Threat and the Statement. Their conduct included their attendance at the meeting in association with each other and their failure to disassociate themselves or the AMWU or CFMEU respectively from what was said by Upton and Brown.

10    It is also necessary to identify what was meant in the pleading by the Claim, the Representation and the Threat. This appears from earlier paragraphs of the Further Amended Statement of Claim as follows:

1 October 2008

21.    On 1 October 2008, Windus accompanied by Upton:

(a)    represented to CBI that the Phase V Expansion Project had been completed (Representation);

(b)    demanded that CBI:

(i)    terminate the employment of the Employee Respondents covered by the AMWU Collective Agreement,

(ii)    pay out their consequential redundancy entitlements taxed at concessional rates and

(iii)    re-employ them for the S6 and VRL packages (Claim); and

(c)    threatened that those Employee Respondents would take industrial action if CBI did not meet the Claim (Threat).

Particulars

The Representation, the Claim and the Threat were made orally by Windus to Luskan and Guyer at the CBI premises in Karratha.

11    It is also necessary to refer to paragraphs 63 and 67 of the Further Amended Statement of Claim. By paragraph 63 it was made clear that the 14 October industrial action and the 17-24 October industrial action were to be referred to together as “the October industrial action”. Paragraph 67 was as follows:

67.     Upton and the CFMEU:

(b)    aided, abetted and/or counselled the Employee Respondents to engage in the October industrial action through the conduct alleged above, including in paragraphs 21-22, 24-29, 33, 39, 41-0 [sic], 47-49 and 54-57; and/or

(c)    were knowingly concerned in or party to the October industrial action through the conduct mentioned in sub-paragraph (b) of this paragraph;

and thereby contravened s.38 of the BCII Act.

We have struck through certain words in paragraph (b) as the counselling claim was not pressed on this appeal.

The orders challenged

12    The orders challenged on appeal were the following:

1.    Section 38 of the Building and Construction Industry Improvement Act 2005 (Cth)

(a)    …

(b)    the 219th respondent (Upton) by making the statement at a meeting with representatives of CBI on 13 October 2008, which is defined at paragraph 98 of the reasons for judgment (the statement), pursuant to section 48(2) of the BCII Act, was involved in a contravention of section 38 of the BCII Act.

(c)    by reason of Upton making the statement, and by operation of sections 48(2) and 69(1) of the BCII Act, the 218th respondent (CFMEU) contravened section 38 of the BCII Act.

(d)    …

(e)    …

Section 494 of the Workplace Relations Act 1996 (Cth)

(f)    …

(g)    Upton, by reason of making the statement, was involved in a contravention of s 494(1) of the WR Act and therefore contravened that provision.

(h)    by reason of Upton making the statement, and by virtue of section 826(2) of the WR Act, the CFMEU contravened section 494(1) of the WR Act.

…

Section 719 of the WR Act

…

(l)    by reason of Upton making the statement, and by virtue of section 826(2) of the WR Act, the CFMEU contravened clauses 8(4) and 9 of the CFMEU Collective Agreement, and are thereby liable to a penalty under section 719 of the WR Act.

…

The statutory provisions

13    We next set out the relevant statutory provisions.

14    Sections 37, 38 and 48(2) of the BCII Act provided:

37    Definition of unlawful industrial action

Building industrial action is unlawful industrial action if:

(a)    the action is industrially-motivated; and

(b)    the action is constitutionally-connected action; and

(c)    the action is not excluded action.

38    Unlawful industrial action prohibited

A person must not engage in unlawful industrial action.

Note: Grade A civil penalty.

48(2)    For the purposes of this Part, a person who is involved in a contravention of a civil penalty provision is treated as having contravened that provision. For this purpose, a person is involved in a contravention of a civil penalty 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.

Section 4(1) contained the following definition:

civil penalty provision means:

(a)    a Grade A civil penalty provision; or

(b)    a Grade B civil penalty provision.

Section 69(1) provided:

69    Building association responsible for conduct of members etc.

(1)    For the purposes of this Act, the following conduct in relation to a building association is taken to be conduct of the building association:

(a)    conduct of the committee of management of the association;

(b)    conduct of an officer or agent of the association acting in that capacity;

(c)    conduct of a member, or group of members, of the association where the conduct is authorised by:

(i)    the rules of the association; or

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

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

(d)    conduct of a member of the association, who performs the function of dealing with an employer on behalf of the member and other members of the association, acting in that capacity.

(2)    Paragraphs (1)(c) and (d) do not apply if:

(a)    a committee of management of the building association; or

(b)    a person authorised by the committee; or

(c)    an officer of the industrial association;

has taken reasonable steps to prevent the action.

Section 4(1) contained the following definition:

building association means an industrial association whose eligibility rules allow membership by at least one of the following groups:

(a)     building employers;

(b)    building employees;

(c)     building contractors;

whether or not those rules also allow membership by other persons.

15    The WR Act provided:

494      Industrial action etc. must not be taken before nominal expiry date of collective agreement or workplace determinations

(1)    From the day when:

(a)    a collective agreement; or

(b)    a workplace determination;

comes into operation until its nominal expiry date has passed, an employee, organisation or officer covered by subsection (2) must not organise or engage in industrial action (whether or not that action relates to a matter dealt with in the agreement or determination).

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

Note 2:    Action that contravenes this subsection is not protected action (see section 440).

(2)    For the purposes of subsection (1), the following are covered by this subsection:

(a)    an employee who is bound by the agreement or determination;

(b)    an organisation of employees that is bound by the agreement or determination;

(c)    an officer or employee of such an organisation acting in that capacity.

…

(4)    Subsections (1) and (3) are civil remedy provisions.

(5)    The Court may make one or more of the following orders in relation to a person who has contravened subsection (1) or (3):

(a)    an order imposing a pecuniary penalty on the person;

(b)    injunctions, and any other orders, that the Court considers necessary to stop the contravention or remedy its effects.

(6)    The pecuniary penalty under paragraph (5)(a) cannot be more than 300 penalty units for a body corporate or 60 penalty units in any other case.

826    Conduct by officers, directors, employees or agents

(1)    Where it is necessary to establish, for the purposes of this Act or the BCII Act, the state of mind of a body corporate in relation to particular conduct, it is sufficient to show:

(a)    that the conduct was engaged in by an officer, director, employee or agent of the body corporate within the scope of his or her actual or apparent authority; and

(b)    that the officer, director, employee or agent had the state of mind.

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

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

(b)    any other person at the direction or with the consent or agreement (whether express or implied) of an officer, director, employee or agent of the body corporate, where the giving of the direction, consent or agreement is within the scope of the actual or apparent authority of the officer, director, employee or agent;

shall be taken, for the purposes of this Act or the BCII Act (as the case requires), to have been engaged in also by the body corporate.

(3)    A reference in this section to the state of mind of a person includes a reference to the knowledge, intent, opinion, belief or purpose of the person and the person’s reasons for the intent, opinion, belief or purpose.

719    Imposition and recovery of penalties

(1)    An eligible court may impose a penalty in accordance with this Division on a person if:

(a) the person is bound by an applicable provision; and

(b) the person breaches the provision.

…

(4)    The maximum penalty that may be imposed under subsection (1) for a breach of an applicable provision is:

(a)    60 penalty units for an individual; or

(b)    300 penalty units for a body corporate.

…

(10)    A proceeding under this section in relation to a breach of an applicable provision must be commenced not later than 6 years after the commission of the breach.

By s 717, applicable provision in relation to a person includes a term of a collective agreement that applies to the person.

16    It is also important to identify what the primary judge held to be the conduct constituting the contravention of s 38 of the BCII Act and s 494(1) of the WR Act: it was the employees engaging in the October industrial action, as defined.

The appellants’ submissions

17    The appellants submitted that the subsidiary findings of fact in [237] of the reasons for judgment of the primary judge were that the employees had threatened an actual strike; the strike was imminent as the employees had stated that if they did not get a positive answer to the claim by the end of 13 October 2008 they were going out; and Upton knew that to be the case.

18    Next the appellants submitted, in reliance on Giorgianni v The Queen (1985) 156 CLR 473 (Giorgianni) at 506-507, that the accessory’s participation must be intentionally aimed at the commission of the acts which constitute it. It is not sufficient if his knowledge or belief extends only to the possibility or even probability that the acts which he is assisting or encouraging are such, whether he realises it or not, constitute the factual ingredients of the crime. If that were sufficient, the person might be guilty of aiding, abetting, counselling or procuring the commission of an offence which formed no part of his design. Intent is required and it is an intent which must be based upon knowledge or belief of the necessary facts.

19    It followed, in the appellants’ submission, that to sustain the contravention found by the primary judge it would be necessary to find that Upton’s words or conduct in making the Statement on 13 October 2008 to the CBI officers constituted doing something to bring about, or render more likely, the October industrial action in contravention of the BCII Act and were intentionally aimed at the commission of the contraventions comprising the October industrial action, rather than mere knowledge or belief extending only to the possibility or even probability that the acts which he was assisting or encouraging were such as to constitute the factual ingredients of the contravention, whether he realised it or not.

20    The appellants’ submission continued that in light of the findings by the primary judge that the employees had not made the Threat as at 1 October 2008 and the employees had not taken industrial action or threatened to do so as at 1 October 2008 the subsequent reference to the Threat at [237] in relation to the events of 13 October 2008 was a reference to the Employee Respondents saying at their meeting on the morning of 13 October 2008 that they wanted to be paid their redundancies and they wanted an answer by the end of the day or they were going out. It could not be taken to be a reference to the Threat pleaded in paragraph 21(c) found to have been made by Windus alone.

21    The appellants submitted that the making of the Statement did not link Upton in purpose with the Employee Respondents because they had already threatened to take strike action imminently, before Upton made the statement. When Upton made the Statement, it was submitted, he did not make it with knowledge of all the essential facts which made the October industrial action a contravention of the BCII Act. There was no evidence he did so intentionally to aid and abet a contravention of the BCII Act: his actions in telling the employees to return to work and not to strike disassociated him from their stated purpose of striking if they did not get what they wanted and then his action in conveying the Threat to the CBI officers was no more than an act of communication that did not assist the contravention. There was no finding by the primary judge as to how the Statement could have assisted the employee respondents to contravene the BCII Act. There was no evidence that the Statement did something to bring about, or render more likely, the October industrial action in contravention of the BCII Act since there was no evidence that Upton conveyed the Statement to the employee respondents on 14 October 2008 when they voted to take industrial action so as to aid or abet their initial contravention of the BCII Act or from 17-24 October 2008 when they took further industrial action. The appellants submitted there was no evidence or any finding that Upton’s conduct in making the Statement was intentionally aimed at the commission of the contraventions comprising the October industrial action. The findings did not support the conclusion that Upton had more than mere knowledge or belief extending only to the possibility or even probability that the Statement was such as to constitute the factual ingredients of the contravention.

The respondent’s submissions

22    The respondent submitted that the issue was not whether Upton did the acts found, nor whether he knew that unlawful strike action was intended by the employees but, rather, whether Upton’s acts assisted in the commission of the contravention or made commission of the contravention more likely. Upton knew all relevant aspects of the matter – that strike action was threatened and that it depended on the reaction of CBI and the employee respondents on the question of the employee respondents’ demand. Upton knew on 13 October 2008 at the meeting of the CBI workforce that the employee respondents had threatened to strike if they were not paid out their redundancies. He knew that he was to report back to the employees on 14 October 2008 after speaking to CBI.

23    The respondent submitted that an immediate cause of the strike with CBI’s resistance to the demand. Accordingly, one question was whether CBI’s resistance was influenced by the content of Upton’s Statement. Another question was the reaction of the Employee Respondents to CBI’s response to the demand. The respondent’s written submissions continued:

[18]    …The trial Judge’s decision can be supported on the following bases.

[19]    First, Upton’s advice to the Employee Respondents was that, rather than take immediate strike action, they should allow him more time to negotiate with CBI – this was expressed at the Second Employees’ Meeting. He told the First Employees’ Meeting that they should not strike and he would pass on the message to CBI, and he would "work through it and get it fixed". However, the message implicit in the Statement to CBI management permitted no such further negotiation – it pressed CBI into wholesale acceptance or rejection of the demand. Upton thereby made it more likely that strike action would ensue, because he reduced for CBI the option of further negotiation, notwithstanding that option may then have been alive for the Employee Respondents.

[20]    Second, by failing to investigate the option of further negotiation and telling Employee Respondents at the Second Employees’ Meeting that CBI did not agree to the demand, he likely gave Employee Respondents the understanding that CBI’s refusal was categorical. To put it in another way, Upton’s actions made it more likely that the Employee Respondents would interpret CBI’s refusal as the CBI uncompromisingly calling the Employees Respondents’ bluff. That is to say, he strengthened the parties’ polarity.

[21]    Further to the first and second points above, the context of this dispute is substantially influenced by the existence of a formal dispute resolution process, a primary objective of which was to provide alternatives to strike action…. On the question whether Upton’s actions made a strike more likely, it is important that no witness, including Upton, suggested that Upton attempted to invoke that process.

[22]    Third, in acting as a messenger for the Employee Respondents to convey the Threat to act unlawfully, Upton embellished upon the Threat. The context includes that it was Upton’s own view (expressed on 13 and 14 of October 2008) that further negotiations should be attempted, yet elected to tell CBI only that a strike would occur if the demand was not met. To the extent that he departed his own view in favour of the Employees Respondents’ view, he became linked in purpose with the threatened contravention. This was the positive act that assisted the commission of the strike by incorrectly giving CBI the impression that he as a union organiser supported the strike action.

24    In oral submissions the respondents submitted that the intention of Mr Upton was to do the thing which assisted the contravention, that is, to make the Statement and that Mr Upton knew that what he said would assist because he knew that what he said would elevate the likelihood of the employees going on strike unlawfully: he knew that the closing off of negotiation would increase that likelihood.

Consideration

25    The following procedural and substantive points arise.

26    First, as is clear from the manner in which the respondent’s submissions were framed, the primary judge did not make findings in the terms or substantially in the terms of the findings contended for in paragraphs [19]-[22] of the respondent’s submissions we have set out above.

27    We reject the submission that the matters now sought to be relied on by the respondent were implicit in the reasons of the primary judge. As we understood the argument, it was put that these matters must have been implicit in the reasons of the primary judge because there was no other inference available from the primary facts. We reject that submission. A readily available inference is that Mr Upton was acting as a hard-nosed negotiator with the intent that CBI would either accede to the Claim or arrive at a compromise.

28    Rule 36.24 of the Federal Court Rules provides as follows:

36.24 Notice of contention

If a respondent does not want to cross-appeal from any part of a judgment, but contends that the judgment should be affirmed on grounds other than those relied on by the court appealed from, the respondent must, within 21 days after the notice of appeal is served, file a notice of contention, in accordance with Form 124.

29    This rule has an important role to play in ensuring that there is procedural fairness and efficiency in the conduct and hearing of an appeal. It follows from our conclusion that the matters now contended for by the respondent were not implicit in the reasons for judgment of the primary judge that a notice of contention should have been filed. That said, the matters were not first raised in the respondent’s oral submissions but rather in his earlier, written submissions on the appeal. In that informal, if irregular, way the appellants had advance notice of them. That does not necessarily mean that there is no substantive injustice to them in the respondent’s seeking to uphold on appeal and, on the basis of these matters, the contravention findings made against them. We turn to consider that issue.

30    The next and more critical procedural questions are:

(a)    whether the case now sought to be advanced by the respondent in relation to Upton’s accessorial liability was pleaded or was articulated in opening or in written submission before the hearing; and, related to that

(b)    whether one or more elements of that case should have been and, if so, were put either sufficiently or at all to Mr Upton at trial.

It is not in our view an adequate response to say, if it be the case, that these matters were alluded to in the respondent’s closing written submissions. That would be too late.

31    In this instance, the respondent’s case was pleaded and opened at a general level of abstraction which did not descend into the likelihoods and failures or Mr Upton’s knowledge of the same which are to be found in the findings contended for in paragraphs [19]-[22] of the submissions on the appeal.

32    Should these matters have been and, if so, were they put to Mr Upton in the course of his oral evidence such that the respondent’s submission should be disregarded?

33    In relation to the exercise of appellate jurisdiction, the relevant principle, for which Browne v Dunne (1893) 6 R 67 (HL) is the root authority, was succinctly summarised by Glass JA, Reynolds JA agreeing, in Seymour v Australian Broadcasting Commission (1977) 19 NSWLR 219 at 225. A distinction in the operation of the principle was made by Glass JA between a suggestion that the evidence of a witness is false, that a particular construction should be placed on his conduct or his conduct was motivated in a particular way, on the one hand, and, on the other hand, a more general conclusion as to the nature of a party’s case. His Honour said:

On appeal, as happened in Browne v Dunn, the Court will be inclinded [sic] to disregard a submission on the evidence which was not tested by putting questions to the party best able to deal with it: Precision Plastics Pty Ltd v Demir (1975) 132 CLR 362 at 370. But, in my opinion, it is going altogether too far to contend that evidence which would otherwise be relevant to a conclusion for which one party contends should be disregarded because its implications have not been put to the party against whom the inference is to be drawn.

34    Especially given the general level of abstraction at which his case was pleaded and opened, the matters set out in paragraphs [19]-[22] of the respondent’s submissions on the appeal, being the basis upon which the respondent now puts that an inference as to accessorial liability can be drawn against Mr Upton, ought to have been put to him by the respondent in the course of his cross-examination. In the course of a lengthy cross-examination, the respondent did not, in terms, do this. That failure deprived Mr Upton of the opportunity of providing an explanation the credibility of which could be assessed by the primary judge when deciding what findings should be made.

35    That conclusion is reason enough to disregard the respondent’s submission but, against the contingency that it is based on an erroneous assessment of the conduct of the respondent’s case before the primary judge, it is as well also to consider it on its merits: see especially [40] below.

36    The remaining questions are first whether the primary judge erred in respect of these findings and orders against Mr Upton, including what, in the circumstances of the present case, would constitute the requisite intention on the part of Mr Upton to render him liable as an accessory to the contravention. The second remaining question is whether the respondent’s submission based on the findings contended for in paragraphs [19]-[22] of the submissions on the appeal as to Mr Upton’s accessorial liability should be accepted.

37    As to the first of these questions, in our view the primary judge was, with respect, in error in finding that Mr Upton was liable as an accessory on the findings which his Honour made. Once the Threat is considered in its own right rather than as an aspect of the Statement then in our view it is clear that on the facts found Mr Upton was not liable as an accessory. The primary judge found, at [100], that Mr Upton’s conveying the Threat was no more than an act of communication, not one made to assist what had been threatened. He also found (ibid) that the Threat was mentioned in a way that made this apparent to the CBI officers. His Honour further found, at [96] and [100], that the communication of the Statement was a gratuitous embellishment by Mr Upon in the course of further discussion with those officers with respect to the Claim. Yet the same man who made that embellishment had been found by the primary judge, at [74] and [75], to have told the employees not to strike. Furthermore, the primary judge also accepted, at [72], Mr Upton’s evidence that what he stated to the meeting of employees which preceded the later meeting with the CBI officers was that he intended “to try and work through it and get it fixed”. There was no finding that this intention changed when conveying the Threat or in making the Statement.

38    The relevant principle to be derived from Giorgianni, Yorke v Lucas (1985) 158 CLR 661, Handlen v The Queen (2011) 245 CLR 282 at [6] and Rafferty v Madgwicks (2012) 203 FCR 1 is that the putative accessory must intentionally participate in the contravention and to form the requisite intent he must have knowledge of the essential matters which go to make up the contravention, whether or not he knows that those matters amount to a contravention. The necessary intent is absent if the person alleged to be the accessory does not know or believe that what he is assisting or encouraging is something which goes to make up the facts which constitute the contravention.

39    On the findings made by the primary judge, Mr Upton was nothing more than a messenger who conveyed the Statement and who, in the course of a negotiation, also gave CBI the benefit of his assessment. He intentionally undertook each of these actions but it does not follow from this that he is thereby, especially in a penal proceeding, to be regarded as entertaining the conscious purpose of furthering the undertaking of an unlawful strike by the employees. That would be counterintuitive in light of the finding as to what he had told the employees.

40    As to the second of these questions, we reject the submission that this Full Court should find on appeal, for the first time, that Mr Upton knew that what he said would elevate the likelihood of the employees going on strike unlawfully and whether that is put as the closing of negotiation or otherwise. In our view, as we have said, that finding would be counterintuitive in circumstances where there is a finding of fact that Mr Upton had, we would infer genuinely, sought to persuade the employees not to go on strike. It was the primary judge who had the advantage of seeing Mr Upton give his evidence.

41    Finally, the respondent put at the end of the hearing of the appeal that there was an aspect of the legislation, s 48(2) of the BCII Act, that had been overlooked. It was submitted that there was a contrast in the language of that subsection, being “has aided, abetted, counselled, or procured the contravention” with the language grounding the discussion in Giorgianni, namely, “aided, abetted, counselled, or procured the primary offender”. It was said that that focus qualified what was said in Giorgianni.

42    In our opinion, for present purposes there is no relevant point of distinction in the difference between the language of s 48(2) of the BCII Act and that discussed in Giorgianni: see 487-488 per Gibbs CJ, 503 per Wilson, Deane and Dawson JJ.

Conclusion and orders

43    Since this Full Court is in a position finally to decide the matter it is not necessary or appropriate that the matter be remitted. The appeal should be allowed, the orders made against Mr Upton and the CFMEU in respect of both the BCII Act and the WR Act should be set aside and, in lieu thereof, it should be ordered that the claim made against them for contraventions of those statutes should be dismissed.

44    In relation to costs, our tentative view is that none of the statutory conditions for a costs order are met and there should be no order as to costs. The appellants appear not to have said anything about costs in written or oral submissions but the respondent asked for costs in his written submissions. If only out of an abundance of caution, we propose in the first instance to reserve questions as to costs and to give directions making provision for an exchange of written submissions of not more than 2 pages in the event that the appellants seek costs and the parties cannot agree a costs outcome. In default of any such written submission, there will be no order as to costs.

Associate:

Dated:    6 December 2012