FEDERAL COURT OF AUSTRALIA

Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2015] FCAFC 170

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    The orders made by the trial judge be set aside.

3.    In lieu thereof it be ordered that the claim that the respondents contravened s 43 of the Building and Construction Industry Improvement Act 2005 (Cth) (“the BCII Act”) be dismissed and it be declared that each of the respondents had contravened s 38 of the BCII Act.

4.    The proceeding be remitted to the trial judge for the making of orders consequential upon the finding that the respondents had contravened s 38 of the BCII Act including the costs of the trial.

5.    If either party wishes to submit that the usual order for costs should not be made on the appeal that party file and serve short written submissions (limited to a maximum of three pages) within seven days of the making of these orders and, if any such submissions are made, the other party file and serve any answering submissions (also limited to a maximum of three pages) within a further seven days.

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

REASONS FOR JUDGMENT

TRACEY AND WHITE JJ

1    This is an appeal against the dismissal by a Judge of this Court of penalty proceedings brought against the first respondent (the CFMEU) and six individuals.

2    By a contract made on 26 November 2010, Mirvac Constructions (Vic) Pty Ltd (Mirvac) engaged Grocon Constructors (Victoria) Pty Ltd (Grocon) to build a high rise residential apartment building at Docklands, Victoria. Grocon engaged Select Cranes and Rigging Pty Ltd (Select Cranes) to erect the tower crane to be used on the project.

3    Construction of the tower crane was to commence on Thursday 17 February 2011. Select Cranes intended using a mobile crane in the course of that erection. It arrived at Gate 10 on the construction site at about 11:25 am. However, a number of men, including some of the individual respondents, had established a picket outside the construction site and prevailed upon the driver of the mobile crane not to enter the site.

4    Later that day, a Grocon manager, Mr Andrew Brinzi made two attempts to drive Grocon’s own mobile crane onto the site: through Gate 3 at about 3:30 pm and through Gate 10 at about 4:20 pm. On each occasion he was prevented from doing so by a number of men, including some of the individual respondents.

5    Another attempt by Mr Brinzi shortly after 7:00 am on Friday 18 February 2011 to drive the Grocon mobile crane through Gate 3 was also blocked by about 16 people, including some of the individual respondents. After the conclusion of work that day, and after those who had blocked his access earlier had departed, Mr Brinzi succeeded in driving the mobile crane through Gate 3 and onto the site.

6    There were other attempts to bring equipment onto the site which were blocked. In particular, on the mornings of each of Saturday 19 and Monday 21 February 2011, Mr Brinzi drove a Grocon truck carrying equipment to be used in the erection of the tower crane toward Gate 3, intending to enter the site. On each occasion, his path was blocked by a group of people. On 19 February 2011, this group included each of the individual respondents, other than the second respondent (Mr Bill Oliver). Those in the group on 21 February 2011 were not identified in the evidence.

7    The trial Judge accepted the evidence of Grocon’s Employee Relations Manager, Mr John Van Camp, of his telephone conversation with Mr Oliver on 17 February 2011. At that time, Mr Oliver was the National Secretary of the Construction Division of the CFMEU. Mr Van Camp asked the reason for the picket line at the site. Mr Oliver replied: “Look, it is about the four man crane crew and it’s also about the fact that we don’t want your roving representatives coming onto this project. We will only accept our representatives, which are Dave Lithgow and Nick Salta”. Mr Van Camp told Mr Oliver that he was “happy to sit down and have discussions about these issues” and that Grocon “would like the picket line to disappear”. Mr Oliver replied that such discussions were “not going to happen”. Mr Oliver also told Mr Van Camp that the third respondent, Mr Elias Spernovasilis, the CFMEU organiser who was responsible for the Docklands area, wanted to talk about these issues, but was not prepared to have the picket lifted while talks were being arranged.

8    Following the issue of interlocutory injunctions by the Supreme Court of Victoria on 22 February 2011, the pickets were removed and the tower crane was erected on the site on 26 February 2011.

9    The appellant (the Director) alleged that, by reason of the picketing, the individual respondents had engaged in “unlawful industrial action”, in contravention of s 38 of the Act formerly known as the Building and Construction Industry Improvement Act 2005 (Cth) (the BCII Act) and had engaged in coercive conduct in contravention of s 43 of the same Act.

10    Each of the third to seventh respondents, who were organisers of the CFMEU (collectively the CFMEU organisers), was alleged to have contravened s 38. Mr Oliver was alleged to have acted as an accessory in relation to these contraventions. Each of the individual respondents including Mr Oliver was also alleged to have contravened s 43. The CFMEU was said to have contravened ss 38 and 43 in a derivative way because the conduct and state of mind of the individual respondents was to be attributed to it pursuant to s 69 of the BCII Act.

11    The trial Judge rejected each of the Director’s claims: Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2014] FCA 1373. The Director now appeals against the dismissal of both claims.

12    The appeal raises two principal issues: first, had the CFMEU organisers engaged in a ban, limitation or restriction on the performance of work within para (c) of the definition of “building industrial action” in s 36 of the BCII Act; and, secondly, should the Judge have found that the intent of the individual respondents engaged s 43(1) of the BCII Act?

The four man crane issue

13    Grocon’s usual practice was to operate a tower crane with a crew of three: a crane driver and two dogmen. The CFMEU took the position that a crew of four should be used on the tower crane on the Docklands site. Grocon did not accept that position.

14    The Judge found that this was the “four man crane crew” issue which Mr Oliver had raised in the telephone conversation with Mr Van Camp: at [10].

The employee representative issue

15    It was common ground that the employment of CFMEU members on the project was governed by an enterprise agreement (the Grocon Enterprise Agreement) approved under the Workplace Relations Act 1996 (Cth) (the WR Act). The CFMEU and members of the Grocon Group were the named parties to that agreement. Clause 14 of that agreement contained a procedure for resolving disputes arising under the agreement entitled “Dispute Settlement and Employee Representation”. Clause 14.1 provided for the procedure to be adopted in relation to disputes, and contemplated action by an aggrieved employee or, at the employee’s choice, by a representative of the employee. Clauses 14.2 and 14.3 of the Grocon Enterprise Agreement made provision for “employee representatives”. Clause 14.2.1 provided:

[14.2.1]    An employee representative shall upon notification to the company, be recognised as the accredited representative of the employees and, if an employee seeks representation by the representative, that representative will be allowed all necessary time during working hours to submit to the company employment related matters affecting the employees he/she represents. At all other times the employee representative will perform productive work within his/her range of qualifications and competence. Further, the employee representative shall be allowed reasonable time during working hours to attend to such job matters affecting the employees. Prior to dismissal or transfer of an employee representative two days written notice shall be given to the employee representative. Payment in lieu of notice shall not be given. In the event of a dispute about the decision of the company to transfer or dismiss and employee representative, the matter will be dealt with in accordance with the dispute settlement procedure of this agreement.

16    Clause 14.2.2 required Grocon to provide facilities for the use of the employee representative including office-like equipment and facilities. Clause 14.3 provided for training leave in respect of an employee “appointed or elected” as an employee representative.

17    The Judge found that it had been the practice of Grocon’s employees to appoint employee representatives with respect to the several construction sites at which Grocon was, at any one time, engaged: at [12]. Thus, the one person would commonly have responsibility as the employee representative at a number of sites. Mr Oliver was referring to this kind of representative when he spoke of “roving representatives” in his telephone conversation with Mr Van Camp. The Judge found that, instead of having “roving representatives”, the CFMEU wanted the employee representatives of Grocon’s employees to be persons nominated by the CFMEU and not necessarily employees of Grocon at all: at [12]. In respect of the Docklands construction site, the CFMEU proposed that two employees of Mirvac, also engaged at the site, should be the representatives of Grocon’s employees: at [12].

18    The Judge accepted that this difference between Grocon and the CFMEU was the second reason for the picket at the site: at [12].

Unlawful industrial action

19    Section 38 of the BCII Act provided:

A person must not engage in unlawful industrial action.

20    The term “unlawful industrial action” was defined in s 37 of the BCII Act as follows:

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.

21    The term “building industrial action” used in s 37 was defined in s 36(1) of the BCII Act as (relevantly):

36 Definitions

(1)    In this Chapter, unless the contrary intention appears:

building industrial action means:

(a)    the performance of building work in a manner different from that in which it is customarily performed, or the adoption of a practice in relation to building work, the result of which is a restriction or limitation on, or a delay in, the performance of the work, where:

(i)    the terms and conditions of the work are prescribed, wholly or partly, by an industrial instrument or an order of an industrial body; or

(ii)    the work is performed, or the practice is adopted, in connection with an industrial dispute (within the meaning of subsection (4)); or

(b)    a ban, limitation or restriction on the performance of building work, or on acceptance of or offering for building work, in accordance with the terms and conditions prescribed by an industrial instrument or by an order of an industrial body; or

(c)    a ban, limitation or restriction on the performance of building work, or on acceptance of or offering for building work, that is adopted in connection with an industrial dispute (within the meaning of subsection (4)); or

(d)    a failure or refusal by persons to attend for building work or a failure or refusal to perform any work at all by persons who attend for building work;

...

It is subpara (c) of this definition which is pertinent presently.

22    The term “building work” used in the definition of “building industrial action” was defined in s 5 of the BCII Act to mean (relevantly):

5 Definition of building work

(1)    Subject to subsections (2), (3) and (4), building work means any of the following activities:

(a)    the construction, alteration, extension, restoration, repair, demolition or dismantling of buildings, structures or works that form, or are to form, part of land, whether or not the buildings, structures or works are permanent;

...

(d)    any operation that is part of, or is preparatory to, or is for rendering complete, work covered by paragraph (a), (b) or (c), for example:

(i)    site clearance, earth-moving, excavation, tunnelling and boring;

(ii)    the laying of foundations;

(iii)    the erection, maintenance or dismantling of scaffolding;

(iv)    the prefabrication of made-to-order components to form part of any building, structure or works, whether carried out on-site or off-site;

(v)    site restoration, landscaping and the provision of roadways and other access works;

...

...

...

23    Finally, the term “industrial dispute” used in the definition of “building industrial action” was defined in s 36(4) to mean:

(4)    In the definition of building industrial action in subsection (1):

industrial dispute means:

(a)    an industrial dispute (including a threatened, impending or probable industrial dispute) that is about matters pertaining to the relationship between employers and employees; or

(b)    a situation that is likely to give rise to an industrial dispute of the kind referred to in paragraph (a); or

(c)    a dispute arising between 2 or more industrial associations, or within an industrial association, as to the rights, status or functions of members of the associations or association in relation to the employment of those members; or

(d)    a dispute arising between employers and employees, or between members of different industrial associations, as to the demarcation of functions of employees or classes of employees; or

(e)    a dispute about the representation of the industrial interests of employees by an industrial association of employees.

The Judge’s decision concerning the contravention of s 38

24    The Judge found, at [23], that each of the CFMEU organisers had been involved in the activities at Gate 3 or Gate 10 which, either by inferred persuasion or direct interference, had prevented the admission to the site of the machinery or components necessary for the erection of the tower crane. The Judge found that each of the fourth, fifth and sixth respondents had engaged in the activities on 17, 18 and 19 February 2011, the third respondent on 17 and 19 February 2011, and the seventh respondent on 18 and 19 February 2011. However, the Judge was not satisfied that any of the CFMEU organisers had engaged in the impugned activities on 21 February 2011.

25    The Director alleged that the conduct of the CFMEU organisers contravened s 38 because it amounted to the imposition of a ban, restriction or limitation on the performance of the tower crane erection work on the site and was accordingly “building industrial action” within the meaning of s 36. It was common ground that, if the conduct of the CFMEU organisers constituted “building industrial action”, it was “unlawful industrial action”.

26    At first instance the Director had contended that the “work”, the performance of which had been the subject of a ban, limitation or restriction for the purpose of the definition of “building industrial action” in the BCII Act, was the work of the driver of the Select Cranes mobile crane on 17 February 2011and the work of the employees of Select Cranes and Grocon who were going to unload the tower crane sections and erect the crane on site. There is an issue in the appeal (to which we will return shortly) as to whether the Director had also relied on the work of Mr Brinzi in attempting to bring the Grocon mobile crane and riggers’ truck on to the site.

27    The Judge held that there was no evidence of any direct attempt by the respondents to prevent the employees of Select Cranes and Grocon from erecting the tower crane or otherwise carrying out their normal work. Those employees were waiting on the site, ready to unload and then to erect the tower crane. For them, the problem was that the wherewithal for doing of their work had not been allowed onto the site: at [30]. That meant that the Director had not shown a ban, restriction or limitation on the performance of their work.

28    In that circumstance, the Judge said, at [43], that if he had been free to decide the case uninstructed by authority, he would have held that the conduct of the CFMEU organisers amounted to a restriction or limitation on the performance of Mr Brinzi’s work, but not on the performance of the work to be done by the Select Cranes and Grocon employees. The Judge gave the following explanation:

[41]    Uninstructed by authority, I would analyse the application of the definition of “building industrial action” to picketing situations as follows. To prevent, even by direct physical means, the entry of a person or vehicle on to a site where work is being, or would be, carried out does not, of itself, amount to a ban, limitation or restriction upon the performance of that work. It may have the effect that the work cannot be performed, and it may even have been intended to have that effect. But it would not, in my view, be a ban, limitation or restriction upon the performance of the work. The paradigm instance of such a picket might be, for example, preventing the delivery of some supplies which are essential to one aspect of the work of some specialised group of workers. In this example, the workers themselves would be waiting on site, ready to work, and their union would presumptively have no ban etc on them doing so. The fact that they did not work would be the consequence of the supplies not being at hand. Those picketing the entrance to the site would not, in my view, be imposing a ban, limitation or restriction on the performance of the work of the specialised workers.

(Original emphasis.)

The Judge went on to say that there may be circumstances in which a traditional form of industrial picket, directed to preventing workers who chose not to strike from entering a worksite, may amount to such a ban, or at least to a restriction or limitation on their performance of work.

29    However, the Judge considered himself bound to apply the decision in Davids Distribution Pty Ltd v National Union of Workers [1999] FCA 1108; (1999) 91 FCR 463 in which Wilcox and Cooper JJ (with whom Burchett J agreed on this issue) had considered the reach of the term “industrial action” in the context of Div 8 of the former WR Act in relation to picketing. Section 170ML of the WR Act had permitted employers, unions and individual employees to initiate a “bargaining period” for the negotiation of a certified agreement. Section 170ML(2) entitled unions, their members and individual employees to take “industrial action” during the bargaining period for the purpose, amongst other things, of supporting or advancing claims made in respect of the proposed agreement. Subsection (3) contained a counterpart entitlement for employers.

30    The term “industrial action” was defined in s 4 of the WR Act in terms which were relevantly identical to s 36 of the BCII Act.

31    In Davids Distribution, Wilcox and Cooper JJ reviewed the authorities concerning the term “industrial action” in relation to picketing, including the decision of the Full Court in Construction, Forestry, Mining and Energy Union v Australian Industrial Relations Commission [1998] FCA 1404; (1998) 89 FCR 200 (CFMEU v AIRC). In that case, the Full Court said at 213:

The only basis on which picketing might be comprehended by the definition of industrial action is if it is conduct of the type identified in par (c) of the definition. That is, if it is a restriction on the performance of work or on the acceptance of or offering for work. The word “picketing” may simply describe a lawful assembly outside a workplace (or elsewhere) protesting about and drawing attention to conditions of employment in the workplace. The word “picketing” may also describe an assembly which engages in protest of this type but also prevents or impedes access into and out of the workplace (or elsewhere).

Even if used to describe the latter situation it is unlikely that picketing is conduct comprehended by the expression “a ... restriction on the performance of work” as it appears in par (c). Having regard to the context in which that expression appears, it is more likely to relate to restrictions imposed by an employee or a group of employees on the work they do so as to limit the scope of that work or the time or the circumstances in which it is done. While the expression “a ... restriction ... on acceptance of or offering for work” in par (c) might comprehend picketing of the latter type which prevented employees who were continuing to work from attending the workplace it is unlikely to have such a wide meaning if the other elements in par (c) relate to circumstances of the type just discussed. It is likely that par (c) in its entirety is directed to the conduct of employees who engage in conduct limiting the work they do or the circumstances in which they offer to do it.

32    As can be seen, the Full Court in CFMEU v AIRC noted that picketing may take various forms. In particular, it may describe a lawful assembly outside a workplace which seeks to protest or draw attention to particular conditions within the workplace, or which seeks to inform and persuade others to a particular viewpoint. Alternatively, a picket may actively prevent or impede movement into and out of the workplace. Conduct of this latter kind was likely to come within para (c) of the definition of industrial action only if it was directed to the work of the employees engaging in the conduct.

33    It was not, however, necessary for the Full Court in CFMEU v AIRC to express a final view.

34    In Davids Distribution, Wilcox and Cooper JJ considered that they should give effect to the view of the Full Court in CFMEU v AIRC. In particular, their Honours considered that picketing would not amount to a ban, limitation or restriction on the performance of work within the meaning of para (c), unless it was directed to the work of the employees engaging in the picketing. Their Honours held at [52]:

Activity that merely involves communication of information to persons entering or leaving a site is not “industrial action”, within the meaning of the definition in the Workplace Relations Act. Such activity clearly cannot constitute a “ban, limitation or restriction on the performance of work” by the picketers. If the picketers do no more than communicate information, it is immaterial that the recipient of the information may be persuaded not to perform, accept or offer for work. On the other hand, if the picket takes the form of preventing or hindering people from performing, accepting or offering for work, its effect is to limit or restrict the performance of work, or the acceptance of, or offering for, work. Such conduct may be regarded as falling literally within para (c) of the definition of “industrial action”. However, consistently with the tentative view of the Full Court in CFMEU, we think the paragraph ought to be read as applying only to limitations on the work of those imposing the ban. The history of the legislation and policy considerations persuade us it is likely Parliament intended to confine the paragraph in this way.

(Original emphasis.)

35    A principal consideration influencing Wilcox and Cooper JJ was the context in which the issue arose for determination. If the picketing was within the definition of industrial action, then it would, in the circumstances pertaining in Davids Distribution, have been “protected industrial action” in which the employees could engage lawfully during the bargaining period. This would have meant that persons affected by it, including innocent third parties, would have had no remedy other than an application to the Australian Industrial Relations Commission for a prohibition order. Their Honours considered that this would be such an interference with the common law rights of those persons that, in accordance with principle, there would need to be a clear indication that that was the legislative intention, and that such an indication was lacking.

36    The reasoning of Wilcox and Cooper JJ on this point is evident in the following passages:

[72]    Picketing which interferes with a person's liberty and freedom of movement infringes that person's common law rights; in particular, the right to free passage in public places and on public roads and footpaths: ... There is a presumption in the interpretation of statutes that there is no intention to interfere with common law rights or basic common law doctrines unless the words of the statute expressly or necessarily require that result: ...

[73]    To interpret para (c) of the definition of “industrial action” in such a way as to include picketing infringing upon the rights and freedoms of others, would be to confer statutory immunity on such conduct; provided only it was engaged in upon proper notice to the employer and for the purposes of negotiating a certified agreement or an AWA. It would authorise interference with the rights, not only of the employer, but also of other affected persons who, but for the immunity, would have a right of action at common law. The interpretation would substitute, for a remedy in common law courts of competent jurisdiction, a mere right to apply to the Commission for an order prohibiting the conduct. Bearing in mind the presumption mentioned in the last paragraph, we do not think the definition should be interpreted in that way. We do not discern a clear indication in the Act that Parliament contemplated that picketing involving obstruction and besetting, and which therefore amounts to an actionable tort, may be protected industrial action, provided only it did not involve, or was not likely to involve, personal injury, wilful or reckless destruction of property or unlawful taking, keeping or use of property.

(Citations omitted)

37    In the present case, the Judge regarded Davids Distribution as binding, at [45]. He also considered that it could not be distinguished on the basis adopted by Kenny J in Cahill v Construction, Forestry, Mining and Energy Union (No 2) [2008] FCA 1292; (2008) 170 FCR 357 (Cahill), to which we will return shortly. On this basis, the Judge held that the conduct of the CFMEU organisers did not come within the para (c) of the definition of building industrial action (because the picketing related to the work of others) and, accordingly, he dismissed the Director’s claims with respect to the alleged contraventions of s 38.

Reliance on the work of Mr Brinzi

38    On the appeal, the Director did not rely on any limitation in relation to the work of the employees of Select Cranes or Grocon in relation to the erection of the tower crane. Counsel said that the Director now confined his case to the work of Mr Brinzi in his attempts to bring the Grocon mobile crane and riggers’ truck onto the site (Mr Brinzi’s work).

39    By a Notice of Contention, the respondents asserted that the Judge should have dismissed the Director’s claim that there was a limitation on Mr Brinzi’s work because that allegation had not been made at trial, whether in the Statement of Claim, the Director’s Outline of Contentions or the Director’s opening. They contended that the contravention of s 38 alleged by the Director concerned only work on the erection of the tower crane on the site and that Mr Brinzi’s work had not been of that character. Accordingly, the submission was that it had not been open to the Director or, for that matter, the Judge to rely on any interference with Mr Brinzi’s work in relation to the alleged contravention of s 38.

40    The respondents had raised the same objection at the trial. The Judge rejected it, although he did not publish formal reasons for doing so. Instead, his reasons appear in the transcript, to which we will refer shortly. In our opinion, the Judge was correct to do so and the claim raised by the respondents’ Notice of Contention should be rejected.

41    In order to explain why that is so, it is necessary to have regard to the pleadings and the course of events at the trial.

42    By para 41 of the Further Amended Statement of Claim (FASC), the Director identified the alleged contravention of s 38 in the following way: “By reason of the matters alleged at paragraphs 12 to 27 and 38 herein,” the CFMEU organisers had in the period 17 February 2011 to 25 February 2011 imposed a ban, restriction or limitation on the performance of “the tower crane erection work on the Site”. The respondents’ present submission emphasised the words “on the Site” in this pleading.

43    The expression “tower crane erection work” used in [41] was not defined in the FASC. Its meaning can however be discerned from [8] of the FASC in which the expression was first used:

[8]    On the morning of Thursday 17 February 2011, several employees of Grocon (Grocon Employees) and several employees of sub-contractor of Grocon, Select Crane & Rigging Pty Ltd (Select Cranes) (Select Crane Employees) arrived at the Site to be inducted and, from around 11am after the induction had finished, to commence work on the erection of the tower crane.

PARTICULARS

The tower crane is necessary for building the core structure of the building and other associated works. Grocon had arranged for a tower crane to be delivered to the Site in sections on 17 February 2011 and had contracted Select Cranes to assemble and erect the tower crane on that day.

The tower crane erection work required the sections of tower crane to arrive on Site on trucks and semi-trailers and a large mobile crane to unload these sections and to assemble the tower.

Select Cranes had also arranged for its 60 tonne mobile crane to arrive at the Site on 17 February 2011 to unload the tower crane sections and then assemble the tower crane on Site.

(Emphasis added.)

44    There is some ambiguity in the second sentence of this plea under the heading ‘Particulars’. It may be either a plea of matters which were a necessary incident of the tower crane erection work on the site or, alternatively, a plea only of matters required to be performed before the tower crane erection work could be commenced. Although either view is open, the former seems the more natural meaning. That is to say, that the tower crane erection work should be understood as incorporating not just the physical erection of the tower crane on the site but the work which was necessarily incidental to that. That included the bringing onto the site of the tower crane sections and a mobile crane.

45    That understanding of the pleading is, in our opinion, confirmed by the Director’s reliance at [41] of the FASC on the obstruction of Mr Brinzi’s attempts on 17 and 18 February 2011 to bring Grocon’s mobile crane on to the site and of his attempt on 21 February 2011 to bring Grocon’s rigging truck on to the site. The FASC pleaded these matters in [14]-[15], [18]-[19] and [27]. Those paragraphs should be understood as a pleading of the material facts relating to the contravention alleged by the Director and not merely matters of evidence. Accordingly, we consider that, if the FASC is considered by itself, the plea in [41] of a ban, restriction or limitation on the performance of “the tower crane erection work on the site” encompassed a ban, restriction or limitation on the work which was necessarily incidental to that work. This included Mr Brinzi’s work in bringing materials and machinery on to the site.

46    There are passages in the Director’s “Outline of Contentions” filed on 27 June 2014 which are consistent with the position of each of the parties. By [9], the Director referred to the obstruction of Mr Brinzi’s attempts to bring on Grocon’s mobile crane on 17 February 2011. On the other hand, [14] described the work to which the picket related as being “work (by employees of Grocon in the operation and use of the tower crane once erected, and by Select Cranes in erecting the tower crane) regulated by Commonwealth industrial instruments.” As the Judge found, at [32] of the judgment, Mr Brinzi’s work was not regulated by a Commonwealth industrial instrument, so the Director’s “Outline of Contentions” [14] could be understood as impliedly excluding his work.

47    The opening submission of the Director’s counsel at trial, although not referring expressly to Mr Brinzi’s work, was in terms which were sufficiently broad to encompass it:

[T]he performance of work in question was the performance of tower crane erection work on the site, which included delivery to site of [a] mobile crane and sections of [the] tower crane, requiring the access into the site of the mobile crane and semitrailers carrying the tower crane sections, and for the mobile crane to unload those tower crane sections in situ and erect the tower in situ. By obstructing access to the site, there was a complete ban, restriction and limitation on the performance of that work. A question will arise as to whether building industrial action, as defined under the BCII Act, extends to an obstructive picket which has that effect. (Emphasis added.)

48    The closing submissions of counsel for the Director made it plain that Mr Brinzi’s work was part of the work relied upon in relation to the alleged breach of s 38:

Counsel:     In my respectful submission, it’s a ban, restriction or limitation on the performance of work.

...

His Honour:    And the work being? The work being what?

...

Counsel:    Yes. So it’s the erection of a tower crane ... comprising ... the delivery of a mobile crane and tower crane sections, unloading of the tower sections in situ, and erection of the tower crane components to build the tower crane on the spot identified by Joe Brinzi yesterday.

...

His Honour:    ... So far as the mobile crane is concerned, as I understand it, you rely on the work of Mr Andrew Brinzi.

Counsel:    Not only him, because we rely on the first incident occurring on 17 February, the subject of evidence by Andrew Brinzi, where the Select Crane – because the Select Crane’s operator was originally the person intended to bring that equipment on.

...

His Honour:    ... Well, then I understand the way you ... put that case. So you rely on the work of the Select Crane people, you rely on the work of Mr Andrew Brinzi. In both cases, getting the mobile crane on to the site for the purpose of ...

Counsel:    Across that threshold, on to the site. ...

49    Counsel for the respondents articulated in his final submissions, the claim that the Director’s reliance on Mr Brinzi’s work was outside the pleading. This is seen most clearly in the following passage:

His Honour:    ... [M]y present disposition is to see a slightly different approach in the case of Mr Andrew Brinzi when he himself was the worker attempting to follow what he said were his management’s instructions to drive the mobile crane on to the site. Now, might it not be said that the picket constituted at least a restriction on his performance of that work?

Counsel:    ... Your Honour has referred to Mr Brinzi, as it were, driving the truck through the gates on to the site. What is alleged against us is that we had a ban, restriction or limitation on the performance of tower crane erection work on the site. That’s what is alleged in the pleading. I know my learned friend said something different.

His Honour:    You’re making a distinction between being outside the gate and being inside the gate.

Counsel:    That’s what is alleged against us, your Honour. This is a penalty case.

(Emphasis added)

50    The Judge rejected the respondents’ submission. His reasons are apparent in the transcript. The Judge said first, that the respondents’ submission would not be regarded as meritorious even in “the most black-letter of commercial courts”. Secondly, the Judge considered that Mr Brinzi’s work could be categorised appropriately “as being on the site type work”. We understand the Judge to be thereby holding that Mr Brinzi’s work was so necessarily linked to the erection of the tower crane erection work that it was part of that work on the site. This view was not only open but, in our opinion, a correct understanding of the pleading. Further, that understanding was confirmed by the conduct of the trial.

51    For this reason, the claim raised by the respondents’ Notice of Contention fails.

Is Davids Distribution distinguishable?

52    As already noted, the Judge considered that Davids Distribution precluded him from giving effect to his view that the conduct of the CFMEU organisers amounted to a restriction or limitation on the performance of Mr Brinzi’s work.

53    Kenny J had considered the effect of Davids Distribution in relation to s 38 of the BCII Act in Cahill. In that case, an Australian Building and Construction Inspector had alleged that the CFMEU and one of its organisers had contravened s 38 by their demands that the crane crew shut down a crane on a building site and that the crane company not have its crane crew work on the building site, and by their organisation of a picket line at the building site. Relying on CFMEU v AIRC and Davids Distribution, the respondents made a no case submission, contending that, in order to constitute building industrial action, the conduct in question had to be that of employees in respect of their own work.

54    Kenny J considered that these authorities should be distinguished as they were concerned only with picketing and were not authority for the wider proposition that a union could not impose a restriction on the performance of work within the meaning of para (c) in the definition of building industrial action, at [43]. Her Honour continued at [49]:

... Whilst I must take such guidance from Davids and Giudice as I can, they provide no clear and definitive answer to the question whether or not the words “a ban, limitation or restriction on the performance of building work” in paras (b) and (c) of the definition of “building industrial action” in s 36(1) of the BCII Act refer to a ban, limitation, or restriction imposed only by employees, or can extend to union action.

55    Kenny J then reasoned that the term “building industrial action” in s 36(1) of the BCII Act had to be construed having regard to the statutory context and purpose of that Act, including the Minister’s Second Reading Speech and the relevant Explanatory Memorandum, at [50]; that a purpose of the BCII Act was to ensure that building industry participants, including unions, were accountable for their unlawful conduct; that the expression “a ban, limitation or restriction on the performance of building work” in paras (b) and (c) of the definition could as naturally comprehend those which were imposed by a union as by employees, at [51]; that the principal object of the BCII Act would be better promoted by a wide interpretation, at [51]; that the reference to “constitutionally-connected action” in s 37 was significant as it contemplated that building industrial action could be taken by an organisation such as a union, at [52]; and that the BCII Act had been designed to overcome some of the perceived deficiencies in the existing workplace relations framework, at [56]. For those reasons, Kenny J found that the conduct alleged against the respondent could constitute building industrial action as defined and rejected the no case submission.

56    In the present case, the Judge referred to Cahill. He concluded that he could not give effect to the reasoning of Kenny J because this was a picketing case, and Davids Distribution was a “directly applicable, binding authority” concerning picketing which could not be distinguished, at [45].

57    In our respectful opinion, there is at least one relevant difference between the provisions in the WR Act considered in Davids Distribution and the provisions of the BCII Act which has the effect that the decision in Davids Distribution may be distinguished. That is the definition of “unlawful industrial action” in s 37 of the BCII Act to which counsel for the Director drew attention on the appeal. Section 37 (set out earlier in these reasons) provides that building industrial action is “unlawful industrial action” if the action is “industrially-motivated”, “constitutionally-connected action” and “not excluded action”. The term “constitutionally-connected action” is defined in s 36 (relevantly) as follows:

Constitutionally-connected action means building industrial action that satisfies at least one of the following conditions:

(a)    The action is taken by an organisation.

...

Section 4 of the BCII Act specifies that the term “organisation” has the same meaning as in the Fair Work (Registered Organisations) Act 2009.

58    That Act does not contain a definition of the term “organisation” but does provide for the registration of specified associations of employees and employers as organisations. For the purposes of the definition of “constitutionally-connected action” it may be accepted that an “organisation” includes a trade union.

59    Section 37 is therefore an express statutory indication that building industrial action may include action by a trade union. The significance of this indication is underlined by two considerations. The first is that the BCII Act did not, as at February 2011, contain a statutory extension of the means by which a person or entity may engage in unlawful industrial action for the purposes of s 38, of the kind contained in s 4(8) of the WR Act or s 347 of the Fair Work Act 2009 (Cth) (the FW Act). The term may therefore be taken to be used with its ordinary meaning. The second is consideration of the kinds of building industrial action in which a trade union may engage. The conduct to which paras (a) and (d) of the definition of “building industrial action” refer is not, of its nature, conduct of a kind in which a union may engage. That suggests, therefore, that the BCII Act must have contemplated that a trade union may engage in the conduct to which paras (b) and (c) of the definition of building industrial action refer. As Kenny J observed in Cahill, the terminology in paras (b) and (c) may be understood naturally as encompassing a ban, limitation or restriction imposed by a union. Other authority indicates that such a ban, restriction or limitation may be imposed by a picket.

60    The WR Act provisions considered in Davids Distribution did not contain any counterpart to s 37.

61    Construing “building industrial action” so as to include picketing by a union, and not just picketing by the employees who perform the affected work, is consistent with one of the stated intentions of the legislature in enacting the BCII Act. In the Second Reading Speech for the introduction of the Building and Construction Industry Improvement Bill 2005, the Minister said:

This bill reflects the government’s commitment to ensuring the law applies and is observed equally by all participants in the building and construction industry, regardless of whether they are union officials, employers or workers.

...

[I]ndustrial action taken by unions to pursue the early negotiation of new agreements [will] not only be unprotected but also unlawful. If unions or other parties take unlawful industrial action they will be subject to civil penalties.

...

This bill will provide a greater incentive for building industry unions to obey the law, particularly as the amount of compensation the court can order them to pay will not be capped.

(Emphasis added.)

62    Counsel for the Director also referred to passages in the Explanatory Memorandum circulated by the Minister in relation to the Building and Construction Industry Improvement Bill 2005. That Memorandum included the following:

The BCII Bill seeks to address these issues by clarifying what constitutes unlawful industrial action. If unions or other parties take unlawful industrial action they will be liable for a maximum civil penalty of 1000 penalty units for a body corporate or 200 penalty units in other cases. A court can also make an order for damages for any loss caused by unlawful industrial action.

(Emphasis added.)

63    Thus, the reference to “constitutionally-connected action” in s 37 is properly understood, in our opinion, as expanding the categories of persons who may engage in “building industrial action” as defined in s 36. This is a relevant ground for distinguishing Davids Distribution.

64    In seeking to avoid this conclusion, counsel for the respondents emphasised that the BCII Act definition of “building industrial action” replicated in effect the definition of “industrial action” in the WR Act and the inter-relationships between the BCII Act, on the one hand, and the FW Act, on the other. In relation to the former, counsel emphasised the observations of the members of the High Court in Electrolux Home Products Pty Ltd v Australian Workers’ Union [2004] HCA 40; (2004) 221 CLR 309 in relation to the presumption that when the Parliament has repeated words which have been judicially construed, it may be taken to have intended the words to have the meaning found by the Court: at [7]-[8] per Gleeson CJ; at [81] per McHugh J; and at [161]-[162] per Gummow, Hayne and Heydon JJ. However, there is little scope for this presumption to operate when, although repeating in effect the definition of “industrial action” in the BCII Act, the Parliament has altered other aspects of the statutory scheme so as to enlarge the categories of persons who may engage in that conduct.

65    Counsel for the respondents drew attention to the term “excluded action” in s 37(c). That term was defined in s 36 of the BCII Act to mean building industrial action that is “protected industrial action (as affected by Part 3 of this Chapter)”. The term “protected industrial action” was defined in s 4 of the BCII Act to have the same meaning as in the FW Act, which replicates (relevantly) the definition of “industrial action” used in the WR Act. Counsel submitted that this inter-relationship in the operation of the two Acts supported the conclusion that “building industrial action” was to have the meaning of “industrial action” as construed in Davids Distribution.

66    We do not regard that submission as persuasive. In the first place, it fails to take account of the implications arising from the inclusion of the term “constitutionally-connected action” in s 37. Secondly, there does not appear to be any conceptual difficulty in the building industrial action which may be the subject of the exclusion in s 37(c) of the BCII Act having, by reason of the narrower definition of industrial action in the FW Act, a more confined scope than building industrial action itself. That is to say, it may be that the exclusion in s 37(c) relates only to building industrial action (or at least picketing) carried out by the affected workers themselves, and not to the action of their union. It is not necessary presently to express a final view on that question.

67    Lastly, counsel referred to s 48(2) of the BCII Act which provides for accessorial liability. The submission, as we understood it, was to the effect that the prospect that a union such as the CFMEU or its employed organisers might be found to be accessories should influence in some way the construction of ss 36, 37 and 38. We do not regard this as a telling consideration. The prospect that certain conduct may make a person liable as an accessory does not really bear on the proper construction of the provision concerning primary contraventions.

68    In summary, we consider that Davids Distribution is distinguishable and that the reasoning of Kenny J in Cahill points to that course being appropriate. Accordingly, we would hold that building industrial action constituted by picketing is not confined to picketing by the employees whose work is affected by the picketing. It extends to pickets imposed by unions. The Judge himself said that he would, if not bound by Davids Distribution, have found a contravention of s 38 in relation to Mr Brinzi’s work.

69    We add, in fairness to the Judge, that the implications arising from the term “constitutionally-connected action” in s 37 do not appear to have been given the same prominence in the proceedings at first instance as they were on the appeal.

70    For these reasons, we would uphold the first ground of appeal.

Coercion with respect to the manning issue

71    The Director’s second claim was that the respondents had engaged in coercive conduct, in contravention of s 43(1) of the BCII Act.

72    Section 43(1) provided:

(1)    A person (the first person) must not organise or take action, or threaten to organise or take action, with intent to coerce another person (the second person):

(a)    to employ, or not employ, a person as a building employee; or

(b)    to engage, or not engage, a person as a building contractor; or

(c)    to allocate, or not allocate, particular responsibilities to a building employee or building contractor; or

(d)    to designate a building employee or building contractor as having, or not having, particular duties or responsibilities.

73    The Director’s case at trial was that each of the respondents was a “first person” within this provision and that Grocon or Mirvac or both, was or were the second person or persons.

74    The Judge rejected the claim insofar as it concerned Mirvac as there was no evidence of any intention by the respondents to coerce it. There is no appeal with respect to that rejection.

75    In relation to Grocon, the Judge considered separately the alleged coercion in relation to the manning and employee representative issues.

76    In relation to the manning issue, the Judge accepted that each of the individual respondents had, on one or more of 17, 18 and 19 February 2011, taken action with intent to coerce Grocon to agree to a crew of four on the tower crane. However, the Judge found that the Director had not established that the individual respondents intended to coerce Grocon to “employ” or “engage” an additional worker on the tower crane crew. First, the Judge accepted, correctly in our opinion, that the focus of s 43(1) was on the intent of the wrongdoer (what the wrongdoer wanted the target to do) and not on the consequences of the target acting as intended (at [57]). In this case, the intent of the individual respondents appears to have been only that there be a four man crane crew, and not that an additional person be employed or engaged

77    The Judge also considered that the evidence did not warrant a finding that implementation of a four man crew on the tower crane would have required Grocon, inevitably, to employ or engage another person so that it could be said to have been necessarily implicit in the demand that Grocon employ or engage another person. The Judge referred in this respect to evidence from Grocon’s Employee Relations Manager to the effect that a number of Grocon’s employees dispersed throughout the project were qualified dogmen who could be called upon to work on the tower crane as and when required. That meant that existing employees could be used if Grocon did adopt a four man crew. It is implicit in the Judge’s finding on this topic that he regarded this circumstance as militating against a finding that the respondents had the intention required by s 43(1)(a) and (b).

78    The Director submitted that the Judge had misunderstood the effect of the allegation in [46(a)] of the FASC. That plea was as follows:

[The individual respondents], by themselves and in combination, by the conduct alleged at paragraphs 12 to 27 and 38 herein organised or took action with intent to coerce Grocon or Mirvac to do one or more of the following:

(a)    run the tower crane activities with a four man crew, thereby employing or engaging an additional worker on the tower crane crew;

(b)    not allocate the employee representative responsibility on the Site to the “roving representatives” Daniel van Camp or Peter Hewitt;

(c)    allocate the employee representative responsibility on the Site to CFMEU-preferred persons;

(d)    designate certain CFMEU-preferred persons the duties and responsibilities of employee representative on the Site.

...

79    Plainly, [46(a)] related to the manning issue and [46(b)-(d)] to the employee representative issue.

80    It also seems plain that the use of the words “employing or engaging” in [46(a)] was a reference to s 43(1)(a) and (b) of the BCII Act and not to s 46(1)(c) and (d).

81    Despite that, counsel for the Director submitted that the plea in [46(a)] was “sufficiently broad” to pick up the “designation” of a person as a crane crew member and thereby to attract s 43(1)(d) of the BCII Act. As we understood it, the submission was that the Judge had erred in failing to understand the pleading in that way so that even if the respondents had intended that an existing employee may be used, that intention was encompassed by s 43.

82    In our opinion, there are two reasons why this submission should not be accepted. First, it is plain that [46] of the FASC was drafted with close regard to s 43 of the BCII Act. Hence, subpara (a) refers to “employing” and “engaging”, these being the subject matter of s 43(1)(a) and (b). Paragraph 43(b) and (c) refer to allocation, this being the subject matter of s 43(1)(c). Finally, [46(d)] refers to the designation of employees, this being the subject matter of s 43(1)(d) of the BCII Act. An objective reading of [46] indicates that this is so. This being so, [46(a)] could not reasonably have been understood as incorporating the notion of designation to which s 43(1)(d) refers and on which the Director now relies. No error by the Judge is shown in this respect.

83    Secondly, it is to be remembered that [46] is a plea of the intention held by the individual respondents when they engaged in the alleged conduct. The Director chose to allege only that that intention was that Grocon should run the tower crane with a four man crew thereby (that is to say, with the consequence) that Grocon should employ or engage an additional worker on the crew. The Director did not allege the intention on which he now relies, namely, that the individual respondents intended that, instead of, or as an alternative to, employing or engaging an additional worker, Grocon should “designate” an existing worker as a member of the crew.

84    For these reasons, the Director has not made out the error imputed to the Judge.

Coercion with respect to the employee representative issue

85    The Judge considered that Mr Oliver made the demand to Mr Van Camp on 17 February 2011 concerning the employee representatives with the intention to coerce Grocon to agree to accept as employee representatives, for the purposes of cl 14 of the Grocon Enterprise Agreement, persons who were employed not by it but by Mirvac. He considered, nevertheless, that that intention did not fall within the terms of s 43(1)(c) or (d). Essentially that was because Mr Oliver, and inferentially the other individual respondents, sought recognition by Grocon of the CFMEU preferred representatives rather than an allocation to those persons of responsibilities or their designation as persons with particular duties or responsibilities. The Judge concluded:

[65]    At base, the essence of Oliver’s demand was that Grocon accept as representatives under the industrial agreement persons who were not its own employees, give them access to so much of the site as was under Grocon’s control, permit them to interact with its own employees in the same way as would be the entitlement of representatives who were its own employees, and provide for them the range of facilities that such representatives would enjoy. In my view, such a demand did not come within the terms of paras (c) or (d) of s 43(1) of the Act.

86    The Director submitted that this conclusion was affected by two errors. First, it was said that the Judge should have found that Mr Oliver, and by inference the individual respondents, had sought that Grocon “not allocate” the responsibilities of employee representatives to the roving representatives, so that s 43(1)(c) of the BCII Act was engaged. Secondly, that it had been wrong of the Judge to conclude that Mr Oliver’s intent was to coerce Grocon to accept the Mirvac employees as the representatives of Grocon’s employees for the purposes of the Enterprise Agreement because there was no evidence to support it and because Grocon’s role and capacity under cl 14 of the Grocon Enterprise Agreement was, in any event, irrelevant to Mr Oliver’s intention.

87    It is convenient to address the second aspect of this submission first. The Director is correct in the submission that Mr Oliver had not referred expressly to the Grocon Enterprise Agreement, and had not indicated to Mr Van Camp, in express terms, that the “roving representatives” to whom he referred were the “employee representatives” under cl 14 of the agreement.

88    Mr Van Camp was the only witness who gave evidence about the conversation with Mr Oliver. Counsel for the Director on the appeal drew attention to passages in the cross-examination of Mr Van Camp to the effect that he had understood Mr Oliver to be referring to health and safety representatives. Mr Van Camp had not referred to representatives of this kind in the written statement containing his evidence in chief, as he had referred only to “employee representatives” and “site representatives”.

89    The Grocon Enterprise Agreement does not provide for health and safety representatives so Mr Van Camp was, presumably, referring in his cross-examination to health and safety representatives elected pursuant to s 54 of the Occupational Health and Safety Act 2004 (Vic). The Judge did not make any specific finding about this aspect of Mr Van Camp’s evidence.

90    It is understandable however, that the Judge dealt with the Director’s pleaded case on the basis that Mr Oliver had been referring, in the statements attributed to him by Mr Van Camp, to employee representatives elected or appointed under cl 14. That is because of the Director’s pleading. The particular intention of the individual respondents alleged by the Director in [46] of the FASC was specified to be the allocation or designation of “the employee representative” and not of “the health and safety representative”. The former is the terminology used in cl 14 whereas the latter is the terminology used in the Occupational Health and Safety Act. The FASC did not allege that the individual respondents had any intention with respect to health and safety representatives. Further, the submissions of the Director on the appeal did not explain how the references to “employee representative” in [46(b), (c) and (d)] of the FASC could be understood as a reference to a health and safety representative or, for that matter, any other form of employee representative.

91    Accordingly, it was natural for the Judge to have understood that the intention of the individual respondents alleged by the Director related to employee representatives under cl 14 and for him to have concluded that the intention alleged was to coerce Grocon to accept as employee representatives, for the purposes of cl 14, persons who were not in its employment but who were employed by Mirvac. No error in that respect has been shown.

92    Contrary to the Director’s submission, cl 14 of the Grocon Enterprise Agreement was relevant to an assessment of Mr Oliver’s intention. The existence of the Grocon Enterprise Agreement formed part of the context in which the statements of Mr Oliver to Mr Van Camp were to be understood. Mr Van Camp acknowledged in his evidence that he had been aware of cl 14 and it was reasonable to infer that Mr Oliver had a like awareness.

93    Clause 14.2.1 required that an employee representative, upon notification to Grocon, be “recognised” as the accredited representative of employees and be provided with the time and facilities by which to discharge that role. It was not for Grocon to “allocate” or “designate” a particular employee as the employee representative: it was instead for Grocon’s employees to appoint or elect an employee representative. Grocon’s obligation arose only after that appointment or election had been made and was, as indicated, to recognise the appointed or elected person as the “accredited representative of the employees”.

94    It was appropriate for the Judge to assess Mr Oliver’s intention having regard to this context.

95    In these circumstances, the Judge was correct to conclude that the intention of the individual respondents with respect to the recognition of the CFMEU preferred persons in this case did not engage s 43(1)(c) and (d) of the BCII Act. Likewise, the intention of the individual respondents that Grocon not recognise the roving representatives did not amount to an intention that Grocon “not allocate” particular responsibilities to the roving representatives.

96    Because none of the intentions attributed to the respondents was comprehended by s 43(1), the provisions of s 70 of the BCII Act, on which the Director relied, do not advance his case on the appeal.

97    For these reasons, the Director’s submission with respect to s 43 of the BCII Act fails.

Conclusion

98    For the reasons given above, the appeal should be allowed and the orders of the Judge set aside. There should instead be an order that the Director’s claim of a contravention of s 43 of the BCII Act be dismissed and an order that the remaining aspects of the matter be remitted to the Judge for the making of appropriate orders in respect of the contraventions of s 38, including consideration of the consequential matters and the costs of trial. We would hear the parties as to the costs of the appeal.

Associate:

Dated:    4 December 2015

REASONS FOR JUDGMENT

BROMBERG J

99    I have had the benefit of reading a draft of the reasons for judgment of Tracey and White JJ. I respectfully agree with their Honours on all questions raised by the appeal, other than one. I respectfully depart from their Honours’ conclusion that the primary judge erred in finding that a picket which included Messrs Spernovasilis, Reardon, Christopher, Beattie and Theodorou, and which physically obstructed attempts by Brinzi to drive a mobile crane onto a building site, did not contravene s 38 of the Building and Construction Industry Improvement Act 2005 (Cth) (the BCII Act). The pertinent facts have already been set out in the reasons of the majority. I adopt them without repeating them. My reasoning follows.

100    The fundamental question is whether the conduct of persons who physically obstruct another person from performing building work, by preventing that other person from driving onto a site, involves “a ban, limitation or restriction on the performance of building work” by the driver, within the meaning of para (c) of the definition of “building industrial action” in s 36(1) of the BCII Act. A literal reading of the words “limitation or restriction” would clearly support an affirmative answer.

101    However, there are two contextual considerations and an important historical consideration which are against the view that the words “limitation or restriction” were intended to have their literal meaning.

102    First, those words are preceded by the word “ban”. In Williams v Construction, Forestry, Mining and Energy Union (2009) 179 IR 441 at [90], in relation to the same phrase found in paragraph (b) of the s 36(1) definition of “building industrial action”, Jessup J said:

The next issue which arises under par (b) of the definition of “building industrial action” is whether the workers engaged in a “ban, limitation or restriction” on the performance of their work. In NMHG Distribution Pty Ltd (t/as Yale Asia Pacific) v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (2000) 104 IR 158, a Full Bench of the Commission said the following of the word “ban” in a statutory context indistinguishable from that with which I am presently concerned (at [11]):

The New Shorter Oxford English Dictionary includes the following meaning for the word “ban”: “a formal or authoritative prohibition (on or against something)”. This meaning accords with the use of the term in industrial relations discourse.

Regarding the contribution made by the words “limitation or restriction” to the composite phrase, in Commonwealth Steel [Co Ltd v Federated Ironworkers’ Association of Australia (1952) 74 CAR 84] Kirby J said (74 CAR at 94):

The word “ban” seems to me to have been obviously chosen to refer to a total prohibition of all the work described, whilst the draftsman has been careful that his widely spread net should also catch any lesser interference by the addition of the words “limitation or restriction.”

As the Full Bench said, there is something formal or authoritative about the concept of a “ban”. I would add that that the concept involves a prohibition which is absolute or categorical, and not merely a matter of inclination or preference. When Kirby J referred to a “lesser interference”, I consider that his Honour had in mind a limitation or restriction which did not involve a total prohibition of all the work described, such as a refusal to use a particular machine or tool. There would still be, in my view, be the need for the refusal to have the qualitative dimension of being absolute or categorical that is required in the case of a ban as such.

(Original emphasis.)

103    On that view, with which I respectfully agree, a “ban” is a total prohibition or interference, imposed absolutely or categorically, on work. A “limitation or restriction” is a partial or lesser prohibition or interference, though again imposed absolutely or categorically. That must be so if the word “ban” is to be given work. If (for example) a “limitation” on work includes at least a partial interference with work, there could be little doubt that, on its ordinary meaning, it would also extend to a total interference with work. Expressed in reverse, it would not be a persuasive argument that to partially interfere with work was prohibited by a proscription on the “limitation” on work, but that the same proscription would allow for a total interference with work. The word “ban” would be unnecessary if all that it did was to extend “industrial action” from partial interferences to total interferences. It connotes something more. That something more, in my view, is the incorporation of the notions of “authoritative,” “formal,” or “categorical” interferences. And, if the three words are to be read as a composite phrase, then the words “limitation or restriction” take some colour from the word “ban” and are to be read in the same way. That, I think, is consistent with the views expressed by Jessup J in Williams v CFMEU.

104    An authoritative prohibition on the performance of work can only be conduct engaged in by a person with some authority (whether actual, apparent, or ostensible) over the performance of that work. Clearly, an employer has such authority in relation to the work of its own employees, as do the employees themselves. By reference to rules which its members are obliged to observe, unions can also authoritatively prohibit the performance of work by their members. In ordinary parlance, that would be described as a ban, limitation or restriction imposed by a union. As a matter of ordinary language, it would be odd to describe an obstructive picket as a “ban” on the performance of work of employees trying to enter their workplace. Thus, if “a ban, limitation or restriction” was intended to mean a total or partial authoritative prohibition on the performance of work, it is unlikely the words were intended to extend to the physical obstruction by one person of the work of another.

105    Second, the words “a ban, limitation or restriction” are not only applied to the “performance of building work”, they are also applied in para (c) (and (b)) to the “acceptance of or offering for building work”. Again, it is possible but not especially natural to say that the offering (for example) for work was “banned” by an obstructive picket line. When used in relation to that subject, the words “a ban, limitation or restriction” are more naturally directed to the imposition of a prohibition rather than any conduct involving physical obstruction.

106    The construction of para (c) (and thus para (b)) which I prefer is consistent with the rest of the definition of “building industrial action.” There is nothing elsewhere in the definition that suggests that the definition was intended to encompass the obstruction by one person of the work of another. Nor is there anything in the rest of the definition that suggests that the categories of person whose conduct may fall within its scope extend to persons who are strangers to the work with which the definition is concerned.

107    The historical consideration, which, to my mind, is determinative of the construction question at issue, is that in Davids Distribution Pty Ltd v National Union of Workers (1999) 91 FCR 463, a Full Court of this Court determined that a literal construction of the words “limitation or restriction” was not intended. Consequently, a picket involving obstruction and besetting was not encompassed by the phrase “a ban, limitation or restriction on the performance of work, or on acceptance of or offering for work”. The provision in which that phrase appeared was the definition of “industrial action” in s 4(1) of the Workplace Relations Act 1996 (Cth) (the WR Act). The terms of the definition of “building industrial action” were obviously modelled upon the terms of the definition of “industrial action” in s 4(1) of the WR Act. Minor modifications were made to the wording of the definition, but most changes were not of substance, those that were of substance were not in relevant subparagraphs, and none suggest core conceptual differences from the WR Act definition.

108    The construction question dealt with by the Full Court in Davids arose in this way. Davids Distribution terminated the employment of 52 of its employees for engaging in picketing conduct that interfered with vehicles and persons accessing Davids Distribution’s warehouses. Interlocutory injunctions restraining the dismissals were granted on the basis that, inter alia, there was a serious issue to be tried that Davids Distribution had contravened s 170MU of the WR Act. Relevantly, s 170MU prohibited the dismissal of an employee wholly or partly because the employee had engaged in “protected action”. Section 170ML created an entitlement for unions and their members to “organise or engage in industrial action” during a bargaining period. Subject to various conditions being satisfied, such action was “protected action” (s 170ML) and, with some exceptions, immune from suit (s 170MT).

109    Before the Full Court, on an appeal from the interlocutory injunction, Davids Distribution contended that the picketing engaged in by the dismissed employees was not “protected action” because it was not “industrial action” within the meaning of s 4(1) of the WR Act. It was in that context that the Full Court in Davids came to consider whether the kind of picketing in which the dismissed employees had engaged could be “industrial action”. That required paragraphs (b) and (c) of the s 4(1) definition of “industrial action” to be construed and in particular the phrase “a ban, limitation or restriction on the performance of work”. The Full Court determined that the kind of picketing engaged in by the dismissed employees was not “a ban, limitation or restriction on the performance of work” and was not otherwise encompassed by the definition of “industrial action”. Thus, it could not be “protected action”. The critical reasoning in support of that conclusion of Wilcox and Cooper JJ (with whom Burchett J relevantly agreed), is at [52], as follows (emphasis in original):

Activity that merely involves communication of information to persons entering or leaving a site is not “industrial action”, within the meaning of the definition in the Workplace Relations Act. Such activity clearly cannot constitute a “ban, limitation or restriction on the performance of work” by the picketers. If the picketers do no more than communicate information, it is immaterial that the recipient of the information may be persuaded not to perform, accept or offer for work. On the other hand, if the picket takes the form of preventing or hindering people from performing, accepting or offering for work, its effect is to limit or restrict the performance of work, or the acceptance of, or offering for, work. Such conduct may be regarded as falling literally within par (c) of the definition of “industrial action”. However, consistently with the tentative view of the Full Court in CFMEU, we think the paragraph ought to be read as applying only to limitations on the work of those imposing the ban. The history of the legislation and policy considerations persuade us it is likely Parliament intended to confine the paragraph in this way.

110    Having considered the “history of the legislation and policy considerations” as well as the consequences of adopting one view or the other upon the capacity for orders to be made under s 127 of the WR Act to stop “industrial action”, Wilcox and Cooper JJ at [71]–[73] concluded:

[71]    As we have already observed, picketing which does not involve obstruction and besetting does not fall within the definition of “industrial action”; it does not relate to the performance of work in the circumstances specified in par (a), (b), (c) or (d) of the definition. Such conduct does not need the protection of s 170MT(2) because it is not actionable by anyone. Only picketing which involves obstruction and besetting, and is therefore an actionable tort, gives rise to policy considerations as to whether it was intended to be protected from suit, or should be so covered if the language will permit.

[72]    Picketing which interferes with a person's liberty and freedom of movement infringes that person's common law rights; in particular, the right to free passage in public places and on public roads and footpaths: see Williams v Hursey at 78-79; Melbourne Corporation v Barry (1922) 31 CLR 174 at 196, 206; City of Keilor v O'Donohue (1971) 126 CLR 353 at 363; Fourmile v Selpam Pty Ltd (1998) 80 FCR 151 at 186. There is a presumption in the interpretation of statutes that there is no intention to interfere with common law rights or basic common law doctrines unless the words of the statute expressly or necessarily require that result: Baker v Campbell (1983) 153 CLR 52 at 123.

[73]    To interpret par (c) of the definition of “industrial action” in such a way as to include picketing infringing upon the rights and freedoms of others, would be to confer statutory immunity on such conduct; provided only it was engaged in upon proper notice to the employer and for the purposes of negotiating a certified agreement or an AWA. It would authorise interference with the rights, not only of the employer, but also of other affected persons who, but for the immunity, would have a right of action at common law. The interpretation would substitute, for a remedy in common law courts of competent jurisdiction, a mere right to apply to the Commission for an order prohibiting the conduct. Bearing in mind the presumption mentioned in the last paragraph, we do not think the definition should be interpreted in that way. We do not discern a clear indication in the Act that Parliament contemplated that picketing involving obstruction and besetting, and which therefore amounts to an actionable tort, may be protected industrial action, provided only it did not involve, or was not likely to involve, personal injury, wilful or reckless destruction of property or unlawful taking, keeping or use of property.

111    It is evident from the passages quoted, and in particular at [52], that the Full Court recognised that, if given a literal construction, a “limitation or restriction” on the performance of work could encompass a picket in which the picketers were obstructing the performance of work by others. That construction was rejected. It was only a limitation by the picketers on their own work which the Full Court determined was capable of being “a ban, limitation or restriction on the performance of work” and thus “industrial action”.

112    Paragraph [52] of Davids can fairly be read as standing for the propositions that employees limiting their own work can be (and are) taking “industrial action”, but if the work of others is prevented or hindered by a picket, that is not “industrial action”. Paragraphs [71] and [73] seem to me to stand for the propositions (respectively) that picketing that does not involve obstruction and besetting is not “industrial action”, and that picketing that does involve obstruction and besetting is also not “industrial action”. Since pickets must either involve, or not involve, obstructing and besetting, those paragraphs seem together to stand for the proposition that picketing, per se, is never “industrial action”.

113    Accordingly, I think that Davids stands for, or is consistent with, the following propositions:

(1)    employees who limit or restrict their own work are, in so doing, taking “industrial action” (at [52]);

(2)    if those employees also non-obstructively picket, the picketing is not “industrial action” (at [71]), but that does not alter that the underlying limitation or restriction is “industrial action”;

(3)    if those employees obstructively picket, the picketing is again not “industrial action” (at [73]), but again that does not alter that the underlying limitation or restriction is “industrial action”;

(4)    a union that procures a limitation or restriction by employees of their own work is engaging in “industrial action”;

(5)    a union that procures a picket to occur, whether obstructive or not, is not engaging in “industrial action”;

114    So, picketers qua picketers (as opposed to qua employees self-imposing a limitation or restriction) are not taking “industrial action” and such picketing cannot, therefore, be “protected industrial action”. And, unions that procure that employees limit or restrict their own work and engage in an obstructive picket are not engaging in “protected industrial action” in respect of the picketing, but may be in respect of the underlying limitation or restriction.

115    A few relatively recent cases have given consideration to Davids: Cahill v Construction, Forestry, Mining and Energy Union (No 2) (2008) 170 FCR 357, Williams v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (No 2) (2009) 184 IR 367, and Williams v CFMEU. I read the two Williams decisions as being consistent with what I have said above. Cahill is in a different category, and I will return to it below.

116    For present purposes, however, it suffices to say that Davids stands for the proposition that an obstructive picket that limits or restricts the work of other persons is not “industrial action.” Where Parliament has repeated a phrase which has been judicially considered, it may be inferred that Parliament intended to adopt the judicially-settled meaning of the phrase: Electrolux Home Products Pty Limited v Australian Workers’ Union (2004) 221 CLR 309 at [7]–[8] (Gleeson CJ); [81] (McHugh J); and [161]-[162] (Gummow, Hayne and Heydon JJ). That inference is strong in a case such as this, where, in the specialised field of industrial legislation, Parliament may readily be taken to have an awareness of the interpretations placed by courts “on pivotal definitions”: Electrolux [162] (Gummow, Hayne and Heydon JJ), and see at [81] (McHugh J). The inference is further supported by the fact that there was a close relationship between the BCII Act and the WR Act. In particular, their fields of operation in relation to the taking of industrial action overlapped. In the absence of any countervailing considerations, I can see no reason to question the primary judge’s conclusion at [44] that:

… the adoption, effectively unaltered, of the same definition by the draftsman of the [BCII] Act in 2005, six years after the publication of their Honours’ reasons [in Davids], leaves no scope for misunderstanding Parliament’s intention.

117    There are two countervailing considerations upon which the appellant (Director) relied. These were said to demonstrate that the phrase “a ban, limitation or restriction on the performance of … work” in the s 36(1) definition of “building industrial action” was used in a different context to its use in the WR Act and that, accordingly, it ought not be presumed that Parliament intended the phrase to have the meaning determined by Davids.

118    The first point of contextual distinction was said to be that the definition of “building industrial action” was not limited to the conduct of employees and that it extended to the conduct of unions.

119    It is clear that “building industrial action” (and also “industrial action” under the WR Act) is not limited to employee conduct, as “action by an employer” is expressly contemplated by the terms of para (f) of each definition. In any event, it may be accepted, as the Director contended, that the definition of “building industrial action” extends to the conduct of unions. The primary judge accepted that to be the case in relation to what his Honour called a “traditional work ban” imposed by a union, by reference to his reasoning in Williams v CFMEU. As already stated, I agree with the reasoning of the primary judge that the imposition of a prohibition by a union upon its members performing their work is conduct capable of constituting “a ban, limitation or restriction”. It may also be accepted, as Kenny J in Cahill reasoned, that the capacity for union conduct to constitute “building industrial action” is confirmed by the terms of s 37 of the BCII Act which provides that “unlawful industrial action” must be “constitutionally-connected action,” which, in turn, is defined in s 36(1) to include “action … taken by an organisation”.

120    What is less clear is why it is that the Director contended that the definition of “building industrial action” extending to the conduct of unions should be regarded as a point of contextual distinction from the WR Act. The distinction contended for cannot be made good unless, under the WR Act and at the time that the BCII Act was enacted, union conduct was not capable of constituting “industrial action”. There is no support for that proposition. It was well settled by 2005 that, under the WR Act, unions could both organise and engage in “industrial action”: Kilpatrick Green Pty Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [1998] FCA 559 at 14 (Ryan J); Emwest Products Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (2002) 117 FCR 588 at [30]–[33], [35] (Kenny J); and see the authorities collected in Emwest at [31]. Emwest concerned precisely the submission, relying on Davids, that unions could not “engage in” industrial action. That submission was rejected.

121    Davids does not stand for the proposition that union conduct cannot be “industrial action”. Davids was not concerned with union conduct. No issue as to whether union conduct was “industrial action” or, in particular, whether union action could constitute “a ban, limitation or restriction on the performance of work” arose in Davids. True it is that, at [52], Wilcox and Cooper JJ said that, in relation to a picket, “a ban, limitation or restriction” could only be read as applying to “limitations on the work of those imposing the ban”. But their Honours were not there determining the categories of persons (beyond employees) who might engage in such a limitation. I do not read that observation as declaring that a union could not engage in “a ban, limitation or restriction” on the performance of the work of its members. For the reasons outlined above, and by the primary judge in Williams v CFMEU and in the judgment below at [38]–[40], by issuing a formal or authoritative prohibition to its members upon performing their own work, a union can be engaged in “a ban, limitation or restriction” on the performance of work of employees.

122    Even if it was the case that the categories of persons whose conduct could constitute industrial action were extended under the BCII Act to include unions, it does not follow that a wider construction was intended for the kind of conduct encompassed by the phrase “a ban, restriction or limitation on the performance of … work”. Unless the Director was prepared to submit that “ban, restriction or limitation” covered different kinds of actions when taken by different entities or organisations (and no such submission was made), the Director’s construction requires that the obstruction of the work of another person by each and any of a union, an employee, an employer, and anyone else, be encompassed by the words “a ban, restriction or limitation”. Yet it is clear from Davids that those words did not, under the WR Act, mean that in relation to an employee. The Director’s points of distinction from the WR Act were targeted at showing that the BCII Act applied to unions. But, the Director failed to identify what it was that supported imputing to Parliament an intent to expand the categories of employee or employer conduct caught by the para (c) definition of “building industrial action” beyond those covered by the definition of “industrial action” under the WR Act. Such an intent is not supported by any increased focus in the BCII Act on union conduct.

123    The second contextual distinction relied upon by the Director was that there is no cognate provision in the BCII Act to s 170MT of the WR Act. Whilst that statement is strictly correct, the absence of a s 170MT equivalent is a matter of form rather than substance. It is perfectly clear from the provisions of the BCII Act that the immunity from suit conferred upon “protected action” by s 170MT of the WR Act was intended to continue undisturbed by the provisions of the BCII Act (other than as provided for in Part 3 of Chapter 5 of that Act). That objective could have been achieved directly by identifying and defining “protected action” and providing for an immunity in relation to it, as had been done in ss 170ML-170MT of the WR Act. Instead, the same outcome was achieved indirectly, by the BCII Act excluding action that was protected action for the purposes of the WR Act (as affected by Part 3 of Chapter 5 of the BCII Act) from being unlawful industrial action prohibited by the BCII Act: see ss 37 and 38 and the definition of “excluded action” in s 36(1). It was therefore unnecessary for a cognate provision to s 170MT to be included in the BCII Act and its absence does not provide a contextual point of distinction of any substance.

124    Lastly, given the prominence given to it in the Director’s submissions, I should also briefly address the judgment of Kenny J in Cahill. Despite the concession made by the Director in oral submissions, I do not agree with the primary judge that Cahill was not concerned with picketing. The facts recounted at [10] and the allegation recounted at [11(d)] of Cahill suggest that it was. However, the main basis upon which her Honour distinguished Davids was that the focus of that case was on picketing (see at [49]). It is somewhat unclear to me how that was a point of distinction, unless her Honour meant that the second respondent to the action in Cahill was not himself alleged to have participated in a picket. Kenny J concluded at [58] that the words “a ban, limitation or restriction on the performance of building work” in the definition of “building industrial action” could extend to union action. That is a conclusion that the primary judge accepted, and one with which I agree. It seems to me that Kenny J also sought to distinguish Davids on that basis. There is room for thinking that, in that respect, her Honour’s approach was based upon a premise with which I respectfully disagree, namely that the provisions under consideration in Davids did not extend to union action. For the reasons already given, I do not consider that the ratio of Davids includes the proposition that the definition of “industrial action” does not extend to union action and, I respectfully observe, Kenny J came to the same view in Emwest. In any event, it is not necessary to distinguish Davids, as the Director sought to do in reliance upon Cahill, to arrive at the conclusion that the definition of “building industrial action” can extend to union action.

125    For those reasons, the finding made by the primary judge that s 38 of the BCII Act was not contravened does not provide a basis for upholding the appeal. The appeal should be dismissed.

Associate:

Dated:    4 December 2015