FEDERAL COURT OF AUSTRALIA

Adams v Director of the Fair Work Building Industry Inspectorate [2017] FCAFC 228

ORDERS

THE COURT ORDERS THAT:

1.    to the extent necessary there be leave to appeal against the judgment of Barker J dated 12 August 2015;

2.    the appeal be dismissed;

3.    the matter be remitted to the primary Judge for hearing and determination of all outstanding questions;

4.    any party seeking an order for the costs of this appeal file submissions within 14 days of the publication of these reasons;

5.    any submissions in reply be served within a further period of 7 days; and

6.    there be liberty to apply.

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

REASONS FOR JUDGMENT

THE COURT:

1    At first instance the respondent (“Fair Work”) sought declarations against, and the imposition of pecuniary penalties upon each of the appellants and two other persons. Those two persons were the thirty-first and seventy-fifth respondents below, against each of whom Fair Work did not press its case. Fair Work alleged contraventions of ss 417(1) and 421(1) of the Fair Work Act 2009 (Cth) (the “Fair Work Act”). The primary Judge found that the alleged contraventions of s 417(1) were established against all appellants. As against those appellants his Honour dismissed the application as it concerned s 421(1).

2    At the beginning of the hearing, the Court ordered that the appellants have leave to appeal against his Honour’s decision concerning s 417(1). Leave was unopposed, and the primary Judge had clearly found that the appellants to this appeal had contravened s 417(1). However order 1 made by the primary Judge was in the form of a finding. By virtue of s 24(1) and s 4 of the Federal Court of Australia Act 1976 (Cth) (the “Federal Court Act”), an appeal must be against a judgment, decree, order or sentence, including a conviction.

3    It is not clear whether the decision to seek leave was motivated by a concern about the form of the order or by a concern that it did not dispose of all matters in issue between the parties, the issue of penalty being outstanding. Of course, if there is no judgment, as that term is defined in s 4, then there can be no appeal, with or without leave. However we consider that order 1 should be treated as being a declaration as sought by Fair Work in the originating application. A declaration need not necessarily be expressed as such. It is only necessary that it finally resolve a matter in issue between the parties. It is clear that his Honour so intended. It was included in the formal orders as an order. Further, the other orders indicated that the only outstanding issue was penalty. The parties conducted the case on that basis. Were it necessary that we do so, we would make appropriate orders pursuant to s 51 of the Federal Court Act. However we do not think that any such action is necessary. As to whether the order is otherwise interlocutory or final, we note the observation of French J (as his Honour then was) in Johnson Tiles Pty Ltd v Esso Australia Pty Ltd (2000) 104 FCR 564 at [42]:

The application of the leave requirement should not involve the expenditure of significant intellectual energy on the distinction between final and interlocutory judgments.

4    The appellants appeal against the primary Judge’s decision concerning contraventions of s 417(1). Fair Work appealed against the dismissal of the proceedings pursuant to s 421(1). However that appeal was discontinued by consent.

the pleaded case

5    As it concerned s 417(1), the primary Judge summarized Fair Work’s pleaded case as follows:

    John Holland Pty Ltd (“John Holland”) was the head contractor responsible for the construction of the New Children's Hospital project located in Nedlands, Western Australia (the “site”);

    Crown Construction Services Pty Ltd (“Crown”) was engaged to perform work on the project at the site as a subcontractor to John Holland;

    Crown engaged the appellants, each of whose employment consisted of, or included, building work, and so was a “building industry participant” within the meaning of s 4(1) of the Fair Work (Building Industry) Act 2012 (Cth);

    on 13 September 2012, an enterprise agreement, signed and dated 21 August 2012 and entitled Crown Construction Services Pty Ltd Enterprise Agreement 2012 (the “Crown enterprise agreement”), was approved under the Fair Work Act;

    the Crown enterprise agreement bound the Construction, Forestry, Mining and Energy Union (“CFMEU”) and each of the appellants (who may also be referred to as “Crown employees”) and had a nominal expiry date of 31 October 2014;

    on 28 February 2013, the Crown employees were rostered to start work at 6.30 am;

    on 28 February 2013, from approximately 7.30 am each of the Crown employees had left the site; and failed or refused to attend for work at the site; and/or failed or refused to perform any work at all on the site; and thus engaged in “industrial action” within the meaning of s 19(1)(c) of the Fair Work Act;

    this industrial action was not authorized or agreed to by Crown; and

    in the premises, each of the respondents, as Crown employees, contravened s 417(1) of the Fair Work Act by taking this industrial action.

THE STATUTORY FRAMEWORK

6    Section 417 provided as follows:

(1)    A person referred to in subsection (2) must not organise or engage in industrial action from the day on which:

(a)    an enterprise agreement is approved by the FWC until its nominal expiry date has passed; or

(b)    a workplace determination comes into operation until its nominal expiry date has passed;

whether or not the industrial action relates to a matter dealt with in the agreement or determination.

...

(2)    The persons are:

(a)    an employer, employee, or employee organisation, who is covered by the agreement or determination; or

(b)    an officer of an employee organisation that is covered by the agreement or determination, acting in that capacity.

...

(3)    If a person contravenes subsection (1), the Federal Court or Federal Circuit Court may do either or both of the following:

(a)    grant an injunction under this subsection;

(b)    make any other order under subsection 545(1);

that the court considers necessary to stop, or remedy the effects of, the contravention.

(4)    The court may grant an injunction under subsection (3) only on application by a person referred to in column 2 of item 14 of the table in subsection 539(2).

(5)    Despite subsection 545(4), the court may make any other order under subsection 545(1) only on application by a person referred to in column 2 of item 14 of the table in subsection 539(2).

7    The term “industrial action” is defined in s 19 of the Fair Work Act as follows:

(1)    Industrial action means action of any of the following kinds:

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

(b)    a ban, limitation or restriction on the performance of work by an employee or on the acceptance of or offering for work by an employee;

(c)    a failure or refusal by employees to attend for work or a failure or refusal to perform any work at all by employees who attend for work;

(d)    the lockout of employees from their employment by the employer of the employees.

Note:    In Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v The Age Company Limited, PR946290, the Full Bench of the Australian Industrial Relations Commission considered the nature of industrial action and noted that action will not be industrial in character if it stands completely outside the area of disputation and bargaining.

(2)    However, industrial action does not include the following:

(a)    action by employees that is authorised or agreed to by the employer of the employees;

(b)    action by an employer that is authorised or agreed to by, or on behalf of, employees of the employer;

(c)    action by an employee if:

(i)    the action was based on a reasonable concern of the employee about an imminent risk to his or her health or safety; and

(ii)    the employee did not unreasonably fail to comply with a direction of his or her employer to perform other available work, whether at the same or another workplace, that was safe and appropriate for the employee to perform.

(3)    An employer locks out employees from their employment if the employer prevents the employees from performing work under their contracts of employment without terminating those contracts.

...

BACKGROUND

8    The case arose out of events which occurred on 28 February 2013 at the site. In their written submissions on appeal, the appellants said:

10.    At the hearing, [Fair Work] adduced evidence from three witnesses: Mr Stephen Grafton Chaseling, the construction director for John Holland on the project at the site; Ms Sarah Louise Hale, the human resources industrial relations manager for John Holland on the project at the site; and, Mr Christopher Richard Stanley, who was engaged by [Fair Work].

11.    Relevantly, Mr Chaseling gave evidence of what had occurred on the morning of 28 February 2013 at the site:

a)    at around 6.20 am, he observed CFMEU officials addressing a group of workers in the car park opposite the main entrance to the site;

b)    that meeting began to disperse at 6.34 am and workers began to enter the site through a main entrance that requires them to swipe their electronic personnel card on an electronic reader;

c)    CFMEU officials Matt Waters and Peter Joshua sought an assurance from Mr Chaseling that the workers would not be docked pay for being late;

d)    Mr Chaseling advised the CFMEU officials that he could not give that assurance because it was up to the individual employers;

e)    Mr Waters said to the congregated workers not to go into the site because John Holland would not guarantee that they would not be docked;

f)    At that point some workers stopped entering the site, some who entered the site then left the site, and some continued to enter the site;

g)    Mr Chaseling instructed the security guard to open the gate next to the main entrance to let workers in because a crowd was trying to access the site;

h)    Some, but not all, of those workers swiped their electronic personnel cards on a mobile card reader held by a security guard;

i)    Shortly afterwards, the workers congregated again at the car park;

j)    That meeting began to disperse at around 6.50am;

k)    Following that meeting, some of the workers did not return to the site that day, and some of the workers returned to the site, collected their tools and lunch boxes and then left the site and did not return;

l)    Mr Chaseling was not aware of any authorisation from John Holland or Crown for any of the workers to leave the site early.

12.    The electronic card records of John Holland that recorded entrances and exits from the site on 28 February 2013 were exhibited to Mr Chaseling’s Affidavit.

13.    Ms Hale gave evidence that was largely consistent with that of Mr Chaseling.

14.    Mr Stanley gave evidence of the investigation that was undertaken by Inspector Kealey into whether there were any contraventions of the [Fair Work Act] on 28 February 2013 by workers at the site. Three categories of evidence that are relevant for present purposes were adduced through Mr Stanley:

a)    business records relating whether and when the appellants worked on 28 February 2013, namely: timesheets of Crown for the week ending 5 March 2013; pay slips of Crown for the pay period ending 5 March 2013; and, sign on/off sheets of Crown dated 28 February;

b)    two flyers regarding a political march and rally organised jointly by several unions that was scheduled for 28 February 2013; and

c)    an extract from the Crown Site Diary dated 28 February 2013 which contained the following sentences under the heading “General Notes”:

Strike due to meeting called by CFMEU before work – ran over by approx. 5 minutes. Matt Waters asked JH if blokes would be docked was told was not up to JH so blokes went

March also booked by CFMEU @10.30.

and which, further down the page, under the heading “Lost Time/Delays”, contained the single word “Strike” (the diary extract).

(Footnotes omitted.)

9    Paragraph 11(h) may be a little misleading. There were two adjacent access points, one of which was equipped with a fixed electronic card reader and one of which, on the day in question, was manned by a staff member with a mobile electronic card reader. We do not understand Mr Chaseling to have conceded that on 28 February 2013, anybody entered the site without swiping his card through one or other of the electronic card readers in use. However he conceded in cross-examination that it was at least possible that a person might leave or enter without swiping his card.

10    Although it seems likely that some employees left the site, or did not enter the site because of Mr Waters’ advice or direction, it is also likely that some workers did not enter the site or left the site because a rally and march, sponsored by the CFMEU and other trade unions, were scheduled to commence at midday on 28 February 2013. The flyers referred to above concerned the proposed activities. We will say a little more about the flyers at a later stage.

CONDUCT OF THE TRIAL

11    Each appellant admitted that:

    Fair Work was entitled to bring the proceedings;

    he was an employee of Crown, Crown was a “national system employer” under s 13 of the Fair Work Act, his employment consisted of, or included, building work and he was therefore a “building industry participant”;

    the CFMEU was an “employee organisation” under s 12 of the Fair Work Act;

    on 13 September 2012, the Crown enterprise agreement was duly approved; and

    the Crown enterprise agreement bound the CFMEU and each of the appellants as Crown employees, and had a nominal expiry date of 31 October 2014.

12    Each appellant asserted that he relied on the precise terms of the Crown enterprise agreement as to its coverage and operation. All of the appellants are male. None of the appellants gave evidence. On appeal, each submits that his case at first instance was that:

    his actions did not constitute “industrial action” as they did not have the requisite “industrial character”;

    on the evidence, Crown authorized or agreed to the relevant actions;

    the evidence was insufficient to prove the case against him; and

    the case against him had to be proven discretely, that is upon the evidence admissible against him.

(Appellants’ outline of submissions at paras 15-16.)

DOCUMENTARY EVIDENCE

13    In seeking to prove that each appellant failed or refused to attend for work or to do work, Fair Work relied almost entirely on documentary evidence, namely:

    entries to, and exits from the site as recorded by electronic card readers, which records were maintained by John Holland;

    timesheets, which timesheets showed whether, and for how long each appellant worked on 28 February 2013;

    payslips created by Crown, which payslips showed the amounts paid to appellants for work done on 28 February 2013; and

    sign on/off sheets.

14    There seems to have been no direct evidence as to how the timesheets and sign on/off sheets were created. Visual inspection suggests that each employee probably entered the information concerning himself. The appellants seem to have proceeded on that basis. It probably was generally the case, although it does not necessarily follow that all entries or signatures were so made. In some cases, there are entries in the sign on/off sheets for appellants who were not shown in the electronic card reader records as having entered the site. In other cases entered sign on/off times were inconsistent with entry and departure times as shown by those records. As none of the appellants gave evidence, these inconsistencies were not explored. The payslips were, we infer, prepared by Crown by reference to the timesheets and the sign on/off sheets.

THE PRIMARY JUDGMENT

15    At [15] his Honour identified the issues arising in the proceedings under s 417(1) as follows:

(a)    Has [Fair Work] proved that each of the [appellants], on 28 February 2013, engaged in “industrial action”, as defined by the [Fair Work] Act?

(b)    If so, did their employer, Crown, authorise or agree to their actions?

16    The primary Judge identified two aspects to the first issue. The first was whether the appellants had attended for work, and/or performed work on 28 February 2013. The second was whether their conduct comprised industrial action.

17    At [23] and [24], the primary Judge said:

23.    On the face of the evidence adduced on behalf of [Fair Work], the Court finds that each of the [appellants], on 28 February 2013, either failed to attend for work at the site or failed to perform any work at all having attended for work at the site.

24.    The evidence adduced by [Fair Work], constituting electronic card records of entries and departures from the site at material times on that day, timesheets, payslips and sign on/off sheets inevitably leads to such a finding, on the balance of probabilities:

(1)    John Holland operated an electronic card system for the purposes of recording the time that each worker engaged at the site entered and exited. A copy of the records of the electronic card reader was produced. [Fair Work], through Mr Chaseling from John Holland, adduced evidence about the operation of the electronic and software systems that generated those records.

(2)    In light of logical inferences that can be drawn from the content and form of the electronic card records, reinforced by the ancillary oral evidence from Mr Chaseling, those records admissibly evidence representations about those Crown employees that entered and exited the site on 28 February 2013, and the time at which those employees entered and exited.

(3)    The electronic card records show two types of record relating to the attendance of the Crown employees:

(a)    those for whom it recorded both a “time in” and a “time out”. There are 19 [appellants] in this category; and

(b)    those for whom it recorded a “time in” but no “time out”. There are eight [appellants] in this category.

(4)    Of the 19 [appellants] for whom a “time out” is recorded, the latest “time out” recorded is 8.16am. It can reasonably be inferred that, from that time, all of those 19 [appellants] had left the site and performed no further work that day.

(5)    The Court also readily infers that the eight [appellants] for whom no “time out” is recorded left the site without correctly swiping the electronic card reader. Although it is therefore not possible to determine, on the basis of the electronic card records, at what time those [appellants] left the site on 28 February 2013, the strong probability on the available evidence is that they did so at some point soon after the pre-start meeting that morning ended.

(6)    There are also 49 [appellants] in relation to whom the electronic card record displays no entry at all. The Court reasonably infers that there is no entry recorded for those [appellants] for the reason that they did not enter the site at all on 28 February 2013.

(7)    The timesheets of Crown adduced in evidence are business records to which the hearsay rule does not apply, containing a representation of the time worked in the week ending 5 March 2013 by each employee. There is such a timesheet corresponding to each of the [appellants].

(8)    None of the timesheets record that any of the [appellants] worked any time on 28 February 2013.

(9)    [Fair Work] acknowledges that some 17 of the timesheets record that the applicable [appellant] was “sick” on 28 February 2013. However no medical certificate relevant to any of these Crown employees was produced to the Director during the course of its investigation. No affirmative case to that effect has been foreshadowed, or put, in respect of any [appellant].

(10)    The payslips of Crown are, likewise, business records to which the hearsay rule does not apply, containing a representation of the hours which each [appellant] worked during the pay period ending 5 March 2013. There is such a payslip corresponding to each of the [appellants].

(11)    Each of the payslips shows the number of “normal time” hours worked by the [appellant] corresponding to that payslip, just as each of the timesheets records the number of “normal time” hours worked by the applicable [appellant].

(12)    In each case, the number of “normal time” hours recorded on the timesheet relating to a given [appellant] is the same as the “normal time” hours recorded on the payslip relating to that [appellant].

(13)    From this the Court reasonably infers that no [appellant] worked any “normal time” hours that were not recorded on the timesheet. It would be expected and indeed presumed that any [appellant] that had worked those hours would have been appropriately paid for that work.

(14)    Thus the Court comfortably infers that the timesheets accurately record that no [appellant] performed any work on 28 February 2013.

(15)    Further, no payslip relating to [an appellant] records any amount of leave entitlements having been paid to any of the [appellants], whether those in relation to whom an entry of “sick” was recorded on the timesheet for 28 February 2013, or any others.

(16)    From this it can readily be inferred that none of the [appellants] was on any period of personal leave on 28 February 2013.

(17)    Finally, the Crown sign on/off sheets for 28 February 2013 constitute a distinct category of business records to which the hearsay rule does not apply, evidencing representations regarding those Crown employees that attended for work on 28 February 2013.

18    None of these findings is specifically challenged in the further amended notice of appeal.

19    At [25]-[27] his Honour observed (concerning the sign on/off sheets):

25    The [appellants] can be divided into four categories depending on the information displayed on the 28 February sign on/off sheet in relation to them:

(1)    Those whose name is not listed on the 28 February sign on/off sheet. There are two [appellants] in this category.

(2)    Those in relation to whom no entry is recorded, and whose name is listed on the 28 February sign on/off sheet. There are 47 [appellants] in this category.

(3)    Those in relation to whom a “sign on” time but no “sign off” time is recorded. There are 10 [appellants] in this category.

(4)    Those in relation to whom both a “sign on” time and a “sign off” time are recorded. There are 17 [appellants] in this category. In each instance, the “sign off” time is 11am, except for the 41st [appellant], for whom the “sign off” time is 3pm (and the 75th [appellant], for whom the “sign off” time is 4pm).

26    Concerning these four categories, the Court accepts [Fair Work’s] submission that:

(1)    In relation to those [appellants] in category (1), no inference can be drawn as to their attendance in reliance on the 28 February sign on/off sheet.

(2)    In relation to those [appellants] in category (2), it can be inferred that they did not attend work at all on 28 February 2013.

(3)    In relation to those [appellants] in category (3), the electronic card records show that six had left the site by 8.16am, or did not “swipe on” at all. The most likely explanation is that these [appellants] left the site without performing any work and without “signing off”.

(4)    In relation to those [appellants] in category (4), viewing the sign on and sign off representations strictly in isolation, an inference might be drawn that they attended work for the hours recorded on the 28 February sign on/off sheet. However, the weight of the competing evidence set out above indicates that such an inference would be an improbable one, as:

(a)    The electronic card records show that 11 of these [appellants] had left the site by 8.16am. This is probative of the “sign off” time as reflected in the 28 February sign on/off sheet being inaccurate.

(b)    The electronic card records contain no record at all for one of these [appellants] (26th [appellant]). It can be inferred that he did not attend work at all if he did not swipe on or off at the electronic card reader.

(c)    The electronic card records reflect no “time out” record for the remaining six [appellants]. However, the fact that the timesheets and payslips show that these [appellants] were not paid for any work on 28 February 2013 is strongly probative of them not in fact having performed any work on 28 February 2013.

27    In those circumstances there is a firm and cogent evidentiary basis for the Court to find, on a comfortable balance of probabilities, that in the case of each of the [appellants] appearing at trial:

(1)    despite being rostered to attend site and perform work on 28 February 2013, each either did not so attend site, or not perform work as rostered, or both; and

(2)    accordingly each undertook “industrial action” within the meaning of that term under the [Fair Work] Act.

20    At [28]-[32] the primary Judge considered the meaning of the term “industrial action” for the purposes of s 417. At first instance and on appeal, there has been confusion as to the status of a note which follows s 19(1) (set out above). The confusion concerns its relevance to the identification of the matters to be proven in order to establish that any alleged contravention of s 417 was “industrial action”. At [29] his Honour summarized the appellants’ submissions at first instance as follows:

As to the requirement of proving an “industrial” character to action taken, the [appellants] contend as follows:

(1)    While the definition of industrial action has been relatively stable across the [Fair Work] Act and predecessor legislation ... s 19 now includes a legislative note in updated terms. That note, at the conclusion of s 19(1), provides:

Note: In Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v The Age Company Limited, PR946290, the Full Bench of the Australian Industrial Relations Commission considered the nature of industrial action and noted that action will not be industrial in character if it stands completely outside the area of disputation and bargaining. (Emphasis added.)

(2)    In Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v The Age Company Limited, PR946290; (2004) 133 IR 197, the Full Bench of the Australian Industrial Relations Commission (Full Bench), while acknowledging that "so-called political strikes" had traditionally been captured by the definition of industrial action, said at [46]:

It seems to us likely that the legislature did not intend to include conduct which stands completely outside the area of disputation and bargaining and that accordingly the definition should be read giving some weight to the word industrial. But precisely how far this qualification might extend is a question of degree. We do not think it is desirable that we go further than is necessary to decide this case. As is clear, we have not found it necessary to go beyond the words of the definition. (Emphasis added.)

(3)    The insertion of the legislative note in s 19 of the [Fair Work] Act evinces a clear intention from Parliament that weight be given to the word “industrial” in the definition of industrial action consistent with the comments of the Full Bench.

(4)    Indeed, the Explanatory Memorandum to the Fair Work Bill 2008 (Cth) explicitly noted at [90] that:

The legislative note at the end of subclause 19(1) alerts the reader to the decision of the AIRC in Automotive, Food Metals, Engineering, Printing and Kindred Industries Union v The Age Company Ltd [2004] AIRC 1254. The note is included to clarify that the definition of industrial action is only intended to cover actions that have an industrial character and occur within the area of disputation and bargaining. (Emphasis added).

(5)    In order to satisfy the Court that industrial action has occurred, as defined by s 19, [Fair Work] must demonstrate that the action alleged against the [appellants] had the requisite industrial character.

21    The decision referred to in the note and in the explanatory memorandum is reported sub nom The Age Company Ltd v Communications, Electrical, Electronic, Information, Postal, Plumbing and Allied Services Union of Australia (2004) 133 IR 197. Relevantly, the case related to the definition of the term “industrial action” in s 4(1)(d) of the Workplace Relations Act 1996 (Cth) (the “Workplace Relations Act”). That section serves a purpose similar to that of s 19(1)(c). However the provisions are, by no means, identical.

22    At [30]-[33] his Honour concluded that although s 13(1) of the Acts Interpretation Act 1901 (Cth) (the “Acts Interpretation Act”) provided that the note was part of the Fair Work Act, it did not follow that it should govern the meaning of ss 19 and 417. His Honour gave particular weight to observations made by this Court in Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2015) 320 ALR 61 at [118]. That paragraph is best read in the context of surrounding paragraphs. At [113]-[121], the Full Court observed:

113    The CFMEU relied on the note in s 19 of the [Fair Work] Act for its submission that the promulgation of the policy did not constitute “industrial action”.

114    The note in s 19 of the [Fair Work] Act reads:

In Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v The Age Company Limited, PR946290, the Full Bench of the Australian Industrial Relations Commission considered the nature of industrial action and noted that action will not be industrial in character if it stands completely outside the area of disputation and bargaining.

115    According to the Explanatory Memorandum to the Fair Work Bill 2008 (Cth), the note was included in the Act “to clarify that the definition of industrial action is only intended to cover actions that have an industrial character and occur within the area of disputation and bargaining”: cl 90. The note is part of the FW Act: see Acts Interpretation Act 1901 (Cth), s 13. The Acts Interpretation Act applies to all Acts, subject to any contrary intention (s 2). The note must therefore be taken into account in determining the meaning and scope of the words in s 19.

116    In the case referred to in the note, the Age case, the Full Bench relevantly held at [46]:

It seems to us likely that the legislature did not intend to include conduct which stands completely outside the area of disputation and bargaining and that accordingly the definition should be read giving some weight to the word industrial. But precisely how far this qualification might extend is a question of degree. We do not think it is desirable that we go further than is necessary to decide this case. As is clear, we have not found it necessary to go beyond the words of the definition.

117    The Full Bench’s comments are best understood in the context in which they were made. At [44]–[45], the Full Bench remarked:

44.    Just as employer conduct is capable of different characterisations depending upon the context, so also is employee conduct. An employee who does not attend for work on account of illness may not be engaging in industrial action, while an employee who does not attend for work in support of a collective demand that the employer agree to alteration of the conditions of employment clearly is so engaged.

45.    In a statutory context which is concerned with industrial disputation and enterprise bargaining it might fairly easily be concluded that a definition of industrial action is intended to be confined to action which occurs in the course of an industrial dispute or bargaining in relation to a demand concerning the conditions to be afforded by an employer to its employees. If such were the case, however, as counsel for the unions pointed out, so-called political strikes may not be amenable to an order pursuant to s.127 – a conclusion at odds with a number of Commission decisions and with the decision of the Federal Court of Australia in [Laing].

(Citations omitted.)

118    The note in s 19 of the FW Act indicates that the legislature intended the Age case to guide the determination of whether action is “industrial action”. But the fact that a note is part of the Act does not mean that it can govern the meaning of the Act. This is particularly the case here because, contrary to what is suggested by the note in s 19, the Full Bench did not hold that action would never be industrial in character if it stood outside the area of disputation and bargaining. As the Full Bench observed in the Age case, political strikes constitute such action. In Laing French J observed at 31:

Industrial action may be caught by the section notwithstanding that it is intended to send a signal or communicate some message other than about a dispute with the employer. It is not necessary for the application of s 127 [of the Workplace Relations Act 1996 (Cth)] that it relate to an industrial dispute if it relates to work regulated by an award or a certified agreement. Thus employees might stop work without the authority of their employer and in breach of their contract of employment in order to attend a rally at Parliament House or some other form of demonstration or public meeting to express views about some issue not arising out of their relationship to their employer. In such a case where their work is regulated by an award or a certified agreement, s 127 is capable of application.

119    These comments were made in relation to the WR Act, but the definition of “industrial action” in the FW Act is not relevantly different.

120    Ultimately, the question posed by s 19(1) of the FW Act is whether action can be said to be “industrial” in character. If action takes place outside the area of disputation and bargaining, that is relevant in determining whether the action is “industrial”, but it is not determinative.

121    In this case, the action the CFMEU was found to have organised was industrial in character. One purpose or motivation of the impugned conduct appears from the documents to be directed towards putting pressure on the employer to hire more employees. The limitation placed on overtime at Peak Downs is expressed as helping the union “to get more new employees like [yourself] a job”. That is an industrial agenda. The policy was also intended to affect the performance of work: cf. Laing at 31–32. We doubt whether it is also necessary to show that the relevant action occurred within the process of bargaining and disputation around the agreement. If it be necessary, we accept that there was no evidence that the overtime policy was mentioned during negotiations for the agreement. But the circumstances in which overtime could be required were part of the bargaining process.

23    The reference to the decision in Laing is to that of French J (as his Honour then was) in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Laing (1998) 89 FCR 17. We discuss this decision below. In the Age decision the Full Bench considered that s 4(1)(c) was not, in terms, limited to conduct which involved, “disputation and bargaining”. However the Full Bench left open the possibility that in some circumstances, the definition might have to be read down, presumably by virtue of other legislative provisions to which it applies. The Full Court seems to have so understood the decision. See [118]-[120].

24    At [34]-[37] the primary Judge said:

34    In the view of the Court there is nothing in the circumstances of this case to suggest that the pleaded action of the [appellants] in failing to attend for work or in failing to perform work where they did, is not industrial in character. There is no evidence to suggest, for example, that what they did stood completely outside the area of disputation and bargaining. The evidence of Mr Chaseling and Ms Hale, concerning the events at about 6.35am on 28 February 2013, provides some of the relevant context for characterisation purposes. Their evidence shows that when Mr Waters of the CFMEU raised a question of employees being docked four hours pay by reason of being late to commence work that morning, and was not responded to satisfactorily by Mr Chaseling, so far as he was concerned, at least some of the [appellants’] actions complained of followed.

35    To the extent that some of the [appellants], by inference, either did not return to work following the 6.35am exchange between Mr Chaseling and Mr Waters, or returned to work but then left having regard to that exchange, or because of a rally or march due to take place later in the day, plainly the action taken had an industrial character to it. It was about wages or, to the extent that other [appellants] chose to attend a political rally that day, or a march organised by the CFMEU as suggested by an entry in the site diary kept by Mr Ross Smith of Crown (see annexure CRS-7 to the affidavit of Mr Stanley), then the actions were also industrial in character. They were, in effect, about pay and conditions of work.

36    To the extent that records show that a number of [appellants] had reported in “sick” on 28 February 2013, given the number who did and all the other circumstances adverted to, including the fact that a political rally and a march were organised for that day, I would infer that the “sick” notifications are not to be treated as accurate representations of the health of each of the [appellants] concerned. I accept the submission made on behalf of [Fair Work] that no medical certificates have been located, in the course of a comprehensive investigation conducted by [Fair Work], in respect of such non attendances at work, something which tends to confirm this finding; and none have been produced by any [appellant].

37    While, on behalf of the [appellants], it is suggested that it was open to [Fair Work] to call representatives of Crown, such as Mr Ruggiero Antonio Ambrosino and Mr Ross Smith, to clarify the circumstances in which employees of Crown left work or did not attend work at the site on 28 February 2013, I do not consider that any particular inference should be drawn from [Fair Work’s] failure to do so.

25    His Honour made a finding at [34]-[35] that Mr Waters of the CFMEU asked Mr Chaseling at 6.35 am whether the workers (including those of the appellants who were then at the site) would be docked four hours pay because they were late in commencing work at the scheduled time of 6.30 am. That question related to the operation of s 474 of the Act which prohibited an employer from making any payment, in respect of at least four hours pay, to an employee who engaged in industrial action (not being protected industrial action under the Act) against the employer on the day. The meeting that ran beyond 6.30 am on 28 February 2013 was industrial action and, as the primary Judge correctly held, the actions of those appellants who were then present at the site in failing or refusing to work after the late conclusion of the meeting, were also of an industrial character, relating to their perception that, in accordance with s 474, they would be “docked” or lose some wages by force of s 474.

26    There are a number of reasons for doubting the applicability to the present case of the Age decision and that in BHP Coal. At a later stage we will discuss a number of those reasons. However there is one matter which we should address at this stage.

27    Both the primary Judge at [31] and the Full Court in BHP Coal at [115], proceeded upon the basis that s 13(1) of the Acts Interpretation Act had the effect that the note concerning the Age decision was part of the Fair Work Act. On appeal, it emerged that s 13 of the Acts Interpretation Act, as it stood at the time of the relevant events in BHP Coal, at the time of the relevant events in this case, and as it now stands did not, and does not apply to the construction of the Fair Work Act. Section 40A of that Act provides:

(1)    The [Acts Interpretation Act], as in force on 25 June 2009, applies to this Act.

(2)    Amendments of the [Acts Interpretation Act] made after that day do not apply to this Act.

28    That section commenced on 1 January 2010.

29    Section 2 of the Acts Interpretation Act provides:

(1)    This Act applies to all Acts (including this Act).

Note:    This Act also applies to legislative instruments, notifiable instruments and other instruments: see subsection 13(1) of the Legislation Act 2003 and subsection 46(1) of this Act.

(2)    However, the application of this Act or a provision of this Act to an Act or a provision of an Act is subject to a contrary intention.

30    As at 25 June 2009, s 13 of the Acts Interpretation Act provided:

(1)    The headings of the Parts Divisions and Subdivisions into which any Act is divided shall be deemed to be part of the Act.

(2)    Every schedule to an Act shall be deemed to form part thereof.

(3)    No marginal note, footnote or endnote to an Act, and no heading to a section of an Act, shall be taken to be part of the Act.

31    It follows that the note is not part of the Act. In their submissions in reply, the appellants made it clear that they did not submit otherwise. However they submitted that the note and the Age decision were consistent with their argument. Whether or not that be so, it is clear that to the extent that the Full Court in BHP Coal proceeded on the basis that the note was part of the Fair Work Act, it was mistaken. To the extent that the primary Judge proceeded on that basis he, too, was in error.

32    At [24] his Honour made findings based on the entries disclosed by the electronic card readers, including that those entries, “evidence representations about those Crown employees that entered and exited the site on 28 February 2013, and the time at which those employees entered and exited.” His Honour noted that exit times had not been recorded in all cases, inferring that such employees probably exited the site at some point after the end of the “pre-start meeting”. His Honour inferred that where the electronic card readers showed that particular appellants had not entered the site, they had not done so. The primary Judge then noted that the timesheets indicated that none of the appellants had worked for any time on 28 February 2013. Where the timesheets had been marked “sick” on that day, no medical certificates were produced to Fair Work during its investigation, nor had any “affirmative” case of sickness been foreshadowed. No such case was put at the trial. His Honour noted that the payslips also disclosed no payment to any appellant for work on 28 February 2013, and no payment for that day for any reason such as sickness. Hence his Honour concluded that none of the appellants was on personal leave on that day. The term “personal leave”, as used in the Crown enterprise agreement, included sick leave.

33    In considering the sign on/off sheets, his Honour concluded that notwithstanding the evidence that an appellant had signed on or on and off, it was improbable that such appellant had performed any work. At [27] his Honour found:

In those circumstances there is a firm and cogent evidentiary basis for the Court to find, on a comfortable balance of probabilities, that in the case of each of the [appellants] appearing at trial:

(1)    despite being rostered to attend site and perform work on 28 February 2013, each either did not so attend site, or not perform work as rostered, or both; and

(2)    accordingly each undertook “industrial action” within the meaning of that term under the [Fair Work Act].

34    His Honour then dealt with the appellants’ case as put in their submissions. First the primary Judge dealt with the note to s 19 concerning the Age decision. As we have observed his Honour’s consideration was based upon the mistaken assumption that the note was part of the Act. His Honour also referred to the decision in BHP Coal which was based on the same misapprehension. However at [34] the primary Judge proceeded on the basis that if action fell within the ordinary meaning of s 19(1)(c), then such action was industrial action, unless it could be shown that such action, “stood completely outside the area of disputation and bargaining”. His Honour concluded that there was no basis for any such conclusion. His Honour also noted that the context in which the alleged industrial action occurred included the exchange between Mr Waters and Mr Chaseling as to whether workers would be paid for the full day, given the late start following the meeting.

35    At [35] his Honour concluded that to the extent that some appellants did not return to work, or returned to work and then left, “having regard to the exchange, or because of a rally or march due to take place later in the day”, the action had an industrial character. His Honour seems to have distinguished between conduct associated with the “exchange” and conduct associated with the proposed rally and march, considering that in both cases, the relevant actions would be industrial. He then concluded that such actions were about pay and conditions of work. This conclusion may have owed something to the discussion in the Age decision of political strikes and/or the consideration of that matter by French J in Laing, although the primary Judge did not refer to the latter case.

36    The primary Judge then considered a number of other issues, the first being the word “sick” which appeared on some of the timesheets for 28 February 2013. His Honour held that such word, used in connection with various appellants, did not constitute, “accurate representations of the health of each [appellant] concerned”, noting that no medical certificates had been found, and none had been produced by the appellants.

37    The appellants submitted that an adverse inference should be drawn against Fair Work because it did not call as witnesses, representatives of Crown. His Honour considered that he should not do so, and that there was sufficient other evidence to enable him to draw the necessary inferences. The appellants attacked the reliability of the documentary evidence concerning attendance on 28 February 2013. This submission depended upon alleged inconsistencies in the records and/or other possible explanations for absences or departures from the site. It included a challenge to Mr Chaseling’s evidence that the appellants were to have started work at 6.30am. His Honour accepted that evidence.

38    The appellants challenged the accuracy of the electronic card reader records. As we have said, the evidence suggests that it was possible for a person to enter or leave the site without the electronic card readers having recorded such movement, although there was no suggestion that such events were common. His Honour accepted that he could rely on those records. In this context his Honour again found that the “sick entries” were not plausible, given the absence of medical certificates and the absence of any payment to an appellant for “sick leave”.

39    The appellants submitted that three appellants had signed in but were not recorded by the electronic card readers as having entered the site. His Honour did not consider that this matter detracted from the availability of the inference that each of the appellants had engaged in industrial action. The appellants then urged that the decision in Briginshaw v Briginshaw (1938) 60 CLR 336 at 362 prevented the Court from inferring breaches by the appellants. His Honour correctly directed himself as to the decision in Briginshaw and rejected this submission.

40    Finally, the primary Judge dealt with the question of authorization or agreement. The appellants submitted that a note in the site diary constituted evidence of authorization or agreement by Crown to industrial action, at least with respect to the proposed rally and march. His Honour considered that the note was ambiguous, was limited to a rally at 10.30 am, and therefore did not relate to the whole of the appellants’ conduct and was contradicted by other entries on that page.

41    At [38] the primary Judge concluded:

In my view, the evidence adduced is sufficient and adequate to enable the Court to draw the reasonable inference that the failure of each of the respondents either to attend work or, having attended work, not to remain at work, was industrial action in that it was action of an industrial character.

APPEAL GROUNDS

42    The appellants appeal against the primary Judge’s findings and orders. The further amended grounds of appeal are as follows:

1.    The learned Judge erred at paragraphs [50]-[56] in construing section 19(2)(a) of the [Fair Work Act] as placing a burden upon a [appellant] employee to establish that an employer had provided authorisation or agreement.

2.    The learned Judge erred at paragraphs [16]-[56] by failing to give individual consideration to what the admissible evidence for the section 417(1) contravention was as against each of the 74 individual [appellants].

3.    The learned Judge erred in finding that [Fair Work] had proven each individual [appellant] had contravened section 417(1) of the [Fair Work Act] in circumstances where there was insufficient admissible evidence to do so.

4.    In the alternative, if the Full Court is satisfied that there was sufficient evidence to conclude that any of the appellants did attend a political rally on 28 February 2013, the learned Judge erred at paragraph [35] in concluding that attending a political rally that did not concern issues between an employer and employees would constitute "industrial action" within the meaning of section 19 of the [Fair Work Act].

In connection with ground 4, notice was given pursuant to s 78B of the Judiciary Act 1903 (Cth).

SOME PRELIMINARY OBSERVATIONS

43    It is fair to observe that the appellants made little attempt, before or at the trial, to identify their respective defences. They seem to have believed that the so-called “penalty privilege” excused them from compliance with the pleading rules of this Court, and that they might simply raise issues at trial which Fair Work was then obliged to prove or disprove. In the past there may have been pecuniary penalty proceedings in which such an approach was permitted. However one wonders about its appropriateness in view of the decision of the High Court in The Commonwealth v Director of Fair Work Building Industrial Inspectorate (2015) 258 CLR 482 at [53].

44    On appeal the appellants again took a very liberal approach to the issues. Indeed, even in submissions in reply, senior counsel seemed to consider that he was at liberty to pursue new grounds of appeal. He was invited to apply for an appropriate amendment to the notice of appeal, but he did not accept that invitation. Fair Work seems to have taken an indulgent approach to such conduct.

45    We note that although the trial lasted for two days, the appeal hearing took three days. The appellants’ appeal submissions involved much speculation about possible “non-industrial” reasons for individual absences from work on 28 February 2013, rather than the identification of alleged errors in the primary Judge’s reasons. Recurring themes of the appellants’ case concerned:

    inferences available from the fact that Fair Work did not call certain managerial employees of Crown who had been summoned to attend;

    the assumption that Fair Work had to prove the purpose of each of the appellants in failing or refusing to attend for, or to perform work;

    the evidential burden of proof concerning possible explanations for the failure of each appellant to attend for work and/or to perform work; and

    the application of the decision in Jones v Dunkel (1959) 101 CLR 298.

CONSTRUCTION OF SECTIONS 417 and 19

46    At the hearing of the appeal, the appellants took a bifurcated approach to the proposed construction of ss 417 and 19. The whole of the first day and part of the second seemed to be conducted upon the basis that s 19 was to be construed in accordance with the note concerning the Age decision. However when junior counsel addressed grounds 3 and 4, it became apparent that the appellants were taking a rather more complex approach to the construction question. Their favoured position was that conduct would comprise industrial action only if it related to a relevant enterprise agreement.

47    It is said that the primary Judge, in effect, commenced from the position that failure to attend for, or perform work comprised industrial action unless there was some reason for taking a different approach. It was submitted that:

This was, however to start from fundamentally the wrong position. His Honour should have considered what action each appellant worker actually performed, and whether there was evidence to establish that this action was industrial.

48    We suspect that this proposition reflects the confusion created by the Age decision and the note to s 19. We understand the primary Judge to have concluded that the appellants’ conduct constituted industrial action because it fell within the definition provided by s 19. His Honour then examined the circumstances of the case in order to determine whether there was any reason to conclude that the appellants’ conduct stood, “completely outside the area of disputation and bargaining”. We consider that it was necessary that his Honour address the first question. We discuss below the suggestion that there was any further question to be addressed. However the appellants’ point seems to be that characterization of conduct as “industrial action” depends upon something more than the fact that such conduct falls within the s 19 definition.

49    Fair Work took a somewhat ambivalent approach to the construction question. In its submissions on appeal senior counsel initially indicated that there were three possible approaches to the construction of s 19, namely:

    that industrial action was conduct which fell within s 19;

    that at least in this case, the appellants’ conduct amounted to industrial action because of the exchange between Mr Waters and Mr Chaseling and the proposed rally and march; or

    that as the appellants submitted, conduct will be industrial action only if it relates to the relevant enterprise agreement.

50    Ms Archer, who did not appear at first instance, initially indicated that Fair Work had, at trial, adopted the second approach, and that she was reluctant to depart from it for reasons of fairness. However, after the second hearing day, and before the third, she learned that at first instance, Fair Work had, at trial, adopted the first approach, with the second approach as a fall-back position. For reasons which appear below, we consider that, unless the particular context of the Fair Work Act in which s 19 is engaged dictates otherwise, s 19 effectively defines the term “industrial action” for all purposes. Our reasons for this conclusion include the fact that the note cannot be treated as part of the Fair Work Act. Given that there is no reference in s 19(1)(c) to, “disputation and bargaining”, it is difficult to see how the note can be taken at face value.

51    We should also say something about the relevant explanatory memorandum which accompanied the Fair Work Bill 2008 (Cth). It stated at para 90 that:

The legislative note at the end of subclause 19(1) alerts the reader to the decision of the AIRC in Automotive Food, Metals, Engineering, Printing and Kindred Industries Union v The Age Company Ltd [2004] AIRC 1254. The note is included to clarify that the definition of industrial action is only intended to cover actions that have an industrial character and occur within the area of disputation and bargaining.

52    This summary of the Age decision suggests that in order that conduct comprise industrial action, it must be industrial in character and occur within the area of disputation and bargaining. Such an approach would effectively limit the term to conduct characterized as industrial and occurring in the course of a dispute or bargaining. Neither the Full Bench in the Age decision, nor French J in Laing, nor the Full Court in BHP Coal accepted such a proposition.

53    There are other reasons which militate against treating the Age decision as being of assistance for present purposes. It concerned s 4 of the Workplace Relations Act, the wording of which differed substantially from that of s 19 of the Fair Work Act. In particular, the operation of s 4 was limited in ways which s 19 is not. Section 4(1)(d) (which is the approximate equivalent of s 19(1)(c)) is limited to a failure or refusal to attend for work or to perform work if:

    the relevant persons are acting in accordance with a decision or direction of an organization of which they are a member; or

    the failure or refusal is in connection with an industrial dispute; or

    the persons are employed by the Commonwealth or a constitutional corporation; or

    the persons are employed in a Territory.

54    These limitations may well have reflected concerns about the constitutional basis of the legislation, which concerns may not have arisen in connection with the Fair Work Act. However their absence from s 19(1)(c) must substantially undermine the authority of the remarks made in the Age decision concerning s 4 of the Workplace Relations Act. We consider that care is also necessary in considering the relevance of the decision in BHP Coal, partly because of the error concerning the status of the note. However we also point out that the observations concerning s 417 and s 19(1)(c) were not necessary to the decision. Further, at [119] and [120] the Full Court observed:

119    These comments were made in relation to the [Workplace Relations Act], but the definition of “industrial action” in the [Fair Work Act] is not relevantly different.

120    Ultimately, the question posed by s 19(1) of the [Fair Work Act] is whether action can be said to be “industrial” in character. If action takes place outside the area of disputation and bargaining, that is relevant in determining whether the action is “industrial”, but it is not determinative.

55    As we have observed above, s 4 of the Workplace Relations Act and s 19(1)(c) of the Fair Work Act are not, in any sense, identical. It is not appropriate to treat a court’s observations concerning the construction of one statute as necessarily controlling the construction of another, even if the sections are expressed in identical words: McNamara v Consumer Trader and Tenancy Tribunal (2005) 221 CLR 646 at [40] per McHugh, Gummow and Heydon JJ; see too Marshall v Director-General Department of Transport (2001) 205 CLR 603 at [62] per Hayne J as applied by Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ in Walker Corporation Ltd v Sydney Harbour Foreshore Authority (2008) 233 CLR 259 at [31].

56    The decision of French J in Laing is of some importance. His Honour said, concerning s 127 of the Workplace Relations Act that the term “industrial action” was widely defined (by s 4). At p 31 his Honour said:

So communication can be industrial action. And industrial action, verbal or non-verbal, can be communication in a wider sense. The withdrawal of labour because of an industrial dispute may be seen as a signal from employee to employer of a grievance or as underlining, from the employee's perspective, the seriousness of a grievance which has been communicated verbally. To say that industrial action sends a signal to the employer or communicates in this sense is not to take it out of the class of conduct to which s 127 applies.

Industrial action may be caught by the section notwithstanding that it is intended to send a signal or communicate some message other than about a dispute with the employer. It is not necessary for the application of s 127 that it relate to an industrial dispute if it relates to work regulated by an award or a certified agreement. Thus employees might stop work without the authority of their employer and in breach of their contract of employment in order to attend a rally at Parliament House or some other form of demonstration or public meeting to express views about some issue not arising out of their relationship to their employer. In such a case where their work is regulated by an award or a certified agreement, s 127 is capable of application.

57    In BHP Coal at [118]-[119] the Full Court adopted at least part of this passage.

58    We have also had regard to the decision of Gordon J in Klein v Metropolitan Fire and Emergency Services Board (2012) 208 FCR 178. We do not understand that decision to be materially inconsistent with the proposition in Laing which we have cited above.

59    We find, in the text of s 19(1)(c), no basis for limiting its operation in the way suggested by the Age decision, or in BHP Coal. Section 19(1)(c) defines the term “industrial action”. It does so by having regard to the relationship between employer and employee, and the performance of work pursuant to that relationship. It is that relationship which attracts use of the word “industrial”. We see no justification for the view that it is necessary to add some further “industrial qualification” to the express words of s 19(1)(c). Some other provision of the Fair Work Act may necessitate the adoption of a narrower meaning for some purposes, just as any statutory definition may be affected by context. We see no basis in the Fair Work Act for adopting a narrow approach to s 19 as it applies to s 417. However we are inclined to the view that provisions in the Crown enterprise agreement may affect its application where an employee does not attend for, or perform work because of illness. We will return to that matter.

60    Ground 4 assumes that the primary Judge correctly found that some of the appellants attended the rally. We do not accept that his Honour made any such finding. As far as we can see, his Honour simply accepted that some of the appellants may have done so, or perhaps had not worked on the relevant day in expectation that they would attend, or that no work would be done because others were absenting themselves for that reason. The appellants submit that participation at such a rally or march would not constitute industrial action within the meaning of s 19 because it did not concern issues between an employer and employees. The Full Bench in the Age decision, French J in Laing and the Full Court in BHP Coal all seem to have rejected such an argument. The appellants accept that the submission is inconsistent with those decisions and submit that we should not follow them. We see no reason to depart from the view expressed by French J in Laing.

61    Given our view as to the proper construction of ss 19(1)(c) and 417(1), it is not strictly necessary that we deal with this matter. However we will deal briefly with it. We consider that the rally and march were very much about wages and conditions, and about relations between employers and employees. To start with, the conduct in question severely disrupted the employer-employee relationship between Crown and its employees. Secondly, the flyers clearly indicated that the rally and march were sponsored by trade unions, and that it was to address quite broad political and/or social issues. In one flyer the purpose of the action was to foster “Local jobs first, more local content and train our WA Kids”. The rally was, “for our future and for our kids.” It was said that, “Its’s our mining boom. Let’s spread it around.” Further, it warned that:

‘The mining boom is creating massive wealth for the select few, but there are also many Australians missing out. Mining and construction companies prefer to import guest workers rather than employ locals. Manufacturing jobs are disappearing due to the high Australian dollar caused by the boom. Mining communities are suffering from underinvestment in transport, hospitals and schools. On Feb 28th let Barnett and others know that these are our resources, our jobs and our future’. Rally!

62    The march was to “Colin’s palace at parliament house”. The Hon Colin Barnett MP was the then Premier of Western Australia. The words “Let’s spread it around” suggest a wider distribution of Western Australia’s prosperity, presumably for the benefit of employees and at the expense of employers. The second flyer was to similar effect. Clearly, employees were being encouraged to participate in the rally and march, rather than perform their duties as employees.

63    Taken at face value, the focus was on the employment of local people and a redistribution of the wealth created by the mining boom. We do not think that his Honour’s use of the expression, “pay and conditions of work”, should be given a narrow meaning. In any event, as we have said, French J and the Full Court in BHP Coal considered that a rally at Parliament House to express views bearing upon the employment relationship was capable of being industrial action. We do not accept that the rally was for purposes unrelated to that relationship. The appellants’ conduct was plainly disadvantageous to Crown. Those organizing the rally tied the imposition of such disadvantage to the causes being advanced. Crown was a construction company, a class of employer which was expressly singled out for attention. The motto “Let’s spread it around” appears to reflect the call for higher wages and lower profits.

64    The appellants submit that a construction of the term “industrial action” which captures failure to attend work in order to attend a political rally or march, “would tip the balance of enterprise agreements too far in favour of employers”, and that, “employees would be prohibited, on pain of civil penalty, from engaging in political disputes, even though those disputes were entirely unrelated to the employer/employee relationship”. Such a situation, it is said, would be inconsistent with the objects of the Act as stated in s 3 of, “providing a balanced framework for cooperative and productive workplace relations”.

65    In our opinion, the appellants’ suggested construction is in the teeth of the general object of the Act, as expressed in s 3 of providing “a balanced framework for co-operative and productive workplace relations that promotes national economic prosperity and social inclusion for all Australians”. The text of s 19(1), read in the context of the Act as a whole, does not evince any support for the appellants’ argument. Statutory construction is a process of considering the text of the legislation as enacted by the Parliament. As Hayne, Heydon, Crennan and Kiefel JJ emphasised in Alcan (NT) Alumina Ltd v Commissioner of Territory Revenue (Northern Territory) (2009) 239 CLR 27 at [47]:

Historical considerations and extrinsic materials cannot displace the clear meaning of the text. The language which has actually been employed is the surest guide to legislative intention.

(Footnotes omitted.)

66    There is nothing in the text of the Act that suggests, let alone supports, a construction of “industrial action” that would let an employee be at liberty to choose not to perform his or her duties as, when and as often as he or she likes in order to attend a political rally. We see no merit in this submission.

67    Finally, the appellants submit that the Court should avoid a construction which would, “trench upon freedom of political communication.” This submission depends upon decisions of the High Court to the effect that the Constitution contains a qualified limitation on legislative power, ensuring that the people of the Commonwealth may, “exercise a free and informed choice as electors.” See McCloy v New South Wales (2015) 257 CLR 178 at [2]. The passage continues:

A.    ... It is not an absolute freedom. It may be subject to legislative restrictions serving a legitimate purpose compatible with the system of representative government for which the Constitution provides, where the extent of the burden can be justified as suitable, necessary and adequate, having regard to the purpose of those restrictions.

B.    The question whether a law exceeds the implied limitation depends upon the answers to the following questions, reflecting those propounded in Lange as modified in Coleman v Power:

1    Does the law effectively burden the freedom in its terms, operation or effect?

If ‘no’, then the law does not exceed the implied limitation and the enquiry as to validity ends.

2.    If ‘yes’ to question 1, are the purpose of the law and the means adopted to achieve that purpose legitimate, in the sense that they are compatible with the maintenance of the constitutionally prescribed system of representative government? This question reflects what is referred to in these reasons as ‘compatibility testing’.

The answer to that question will be in the affirmative if the purpose of the law and the means adopted are identified and are compatible with the constitutionally prescribed system in the sense that they do not adversely impinge upon the functioning of the system of representative government.

If the answer to question 2 is ‘no’, then the law exceeds the implied limitation and the enquiry as to validity ends.

3.    If ‘yes’ to question 2, is the law reasonably appropriate and adapted to advance that legitimate object? This question involves what is referred to in these reasons as ‘proportionality testing’ to determine whether the restriction which the provision imposes on the freedom is justified.

The proportionality test involves consideration of the extent of the burden effected by the impugned provision on the freedom. There are three stages to the test - these are the enquiries as to whether the law is justified as suitable, necessary and adequate in its balance in the following senses:

suitable — as having a rational connection to the purpose of the provision;

necessary — in the sense that there is no obvious and compelling alternative, reasonably practicable means of achieving the same purpose which has a less restrictive effect on the freedom;

adequate in its balance — a criterion requiring a value judgment, consistently with the limits of the judicial function, describing the balance between the importance of the purpose served by the restrictive measure and the extent of the restriction it imposes on the freedom.

If the measure does not meet these criteria of proportionality testing, then the answer to question 3 will be ‘no’ and the measure will exceed the implied limitation on legislative power.”

(Footnotes omitted.)

68    We understand the appellants’ submission to be that if a construction of ss 19 and 417, which we would otherwise favour, leads to a limitation upon the right freely to express political opinions, we should reject it. It is apparently submitted that it would place an unacceptable limit upon the right freely to express political opinions if the Fair Work Act were construed as imposing a pecuniary penalty upon an employee who does not attend for work, or perform work as he or she is obliged to do, because he or she wishes to express a political opinion at some place other than his or her place of work in contravention of a term of his or her enterprise agreement.

69    A law will only create such a limitation if, in its terms, operation or effect, it effectively burdens the freedom. We do not wish to be taken as accepting that ss 19(1)(c) and 417, as we construe those sections, effectively impose any such burden. They do not interfere with the capacity of a person to express views. They merely require that duties voluntarily undertaken be performed. This includes duties and promises not to take particular action, without the agreement of the employer, while an enterprise agreement is in force. However it is not necessary that we address that question as the parties have conducted the case upon the basis that the sections impose such a burden. In those circumstances, we must address questions 2 and 3. We understand it to be common ground that a law which has the purpose of regulating employer and employee rights and obligations is compatible with representative and responsible government. The appellants, in their written outline, conceded as much. However, in their oral submissions, they submitted that in McCloy, the High Court held that the purpose and the means adopted to achieve that purpose must be so compatible. In their outline, the appellants did not identify or address the distinction between the purpose and the means adopted to fulfil that purpose. In oral submissions, the appellants asserted that whilst the purpose may have been compatible with maintenance of the constitutionally prescribed system of representative government, the adopted means were not.

70    The appellants seem to submit that any statutory requirement that an employee be at his or her place of work, and performing work of the agreed kind during the agreed hours, as a means of regulating employer and employee rights and obligations, is in some way incompatible with the maintenance of our system of representative and responsible government. This submission seems to involve the proposition that the maximum pecuniary penalty for any breach of s 417 is too high a penalty for exercising the right freely to express political opinions in a way which infringes s 417. Alternatively, it is suggested that there should be no pecuniary penalty, leaving the employer to whatever remedies it may have under the relevant terms of employment.

71    These somewhat surprising propositions are said to be supported by references to very specific passages in various judgments. In our view the submission is completely misconceived. We should briefly summarize the history of the relevant limit on statutory power. In Lange v Australia Broadcasting Corporation (1997) 189 CLR 520, the Full High Court said at 561-2:

However, the freedom of communication which the Constitution protects is not absolute. It is limited to what is necessary for the effective operation of that system of representative and responsible government provided for by the Constitution. The freedom of communication required by ss 7 and 24 and reinforced by the sections concerning responsible government and the amendment of the Constitution operates as a restriction on legislative power. However, the freedom will not invalidate a law enacted to satisfy some other legitimate end if the law satisfies two conditions. The first condition is that the object of the law is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government or the procedure for submitting a proposed amendment to the Constitution to the informed decision of the people which the Constitution prescribes. The second is that the law is reasonably appropriate and adapted to achieving that legitimate object or end. Different formulae have been used by members of this Court in other cases to express the test whether the freedom provided by the Constitution has been infringed. Some judges have expressed the test as whether the law is reasonably appropriate and adapted to the fulfilment of a legitimate purpose. Others have favoured different expressions, including proportionality. In the context of the questions raised by the case stated, there is no need to distinguish these concepts. For ease of expression, throughout these reasons we have used the formulation of reasonably appropriate and adapted.

(Footnotes omitted.)

72    In Levy v State of Victoria (1997) 189 CLR 579, Brennan CJ said at 595:

Televised protests by non-verbal conduct are today a commonplace of political expression. A law which simply denied an opportunity to make such a protest about an issue relevant to the government or politics of the Commonwealth would be as offensive to the constitutionally implied freedom as a law which banned political speech-making on that issue. However, while the speaking of words is not inherently dangerous or productive of a tangible effect that might warrant prohibition or control in the public interest, non-verbal conduct may, according to its nature and effect, demand legislative or executive prohibition or control even though it conveys a political message. Bonfires may have to be banned to prevent the outbreak of bushfires, and the lighting of a bonfire does not escape such a ban by the hoisting of a political effigy as its centrepiece. A law which prohibits non-verbal conduct for a legitimate purpose other than the suppressing of its political message is unaffected by the implied freedom if the prohibition is appropriate and adapted to the fulfilment of that purpose. Such a law prohibiting or controlling the non-verbal conduct, if it be reasonable in extent, does not offend the constitutional implication.

73    At 608, Dawson J said:

There can be no objection to approaching the matter in this way, provided that it is borne in mind that, putting to one side the situation under s 128, the ultimate question is whether the law is compatible with the elections which the Constitution requires. It is in those elections that the representative government and, ultimately, the responsible government for which the Constitution provides find their source. As I have said, the circumstances of those elections must be such as to enable the people to make a free and informed choice. In other words, they must be free elections.

Free elections do not require the absence of regulation. Indeed, regulation of the electoral process is necessary in order that it may operate effectively or at all. Not only that, but some limitations upon freedom of communication are necessary to ensure the proper working of any electoral system. Apart from regulation of the electoral process itself, elections must take place within the framework of an ordered society and regulation which is directed at producing and maintaining such a framework will not be inconsistent with the free elections contemplated by the Constitution notwithstanding that it may incidentally affect freedom of communication. In other words, the freedom of communication which the Constitution protects against laws which would inhibit it is a freedom which is commensurate with reasonable regulation in the interests of an ordered society.

(Footnotes omitted.)

74    Similar observations appear in the joint reasons of Toohey and Gummow JJ at 614, Gaudron J at 618-620, McHugh J at 624 and Kirby J at 647-648.

75    Any legislation which effectively requires that a person be in a particular location at a particular time will necessarily limit his or her capacity to engage in political discourse simultaneously at some other location. Any statutory requirement that a person perform a particular function at a particular time may have similar effect. However nothing in the cases suggests that the freedom to express political opinions should necessarily displace any other obligation, statutory or otherwise.

76    Here, it is necessary to consider the appellants’ argument that s 417 is not compatible with the implied constitutional freedom in respect of its operation on persons bound by an enterprise agreement that does not allow employees to attend a political rally at any time of their choosing. It is essential to understand that s 417 operates on particular relationships that, relevantly to this appeal, owe their structure and existence to industrial bargaining. That bargaining resulted in an enterprise agreement that the Commission approved after hearing submissions from both the employer and employees.

77    The Fair Work Act prescribes a careful process in Pt 2-4, as the objects in s 171 provide, that the employer, employees and, ultimately, the Commission must follow to bargain in good faith “for enterprise agreements that deliver productivity benefits”, before an enterprise agreement becomes binding. Important aspects of that process are that:

    the employer and employees are to negotiate through representatives the terms that will govern their relationship for the period during which the enterprise agreement will be in force (Pt 2-4 Div 3);

    the Commission must consider and approve the terms of the enterprise agreement once the employees, or a majority of them, have voted to make it (Pt 2-4 Div 4);

    all of the employer, the employees and the Commission are aware that the terms of the Fair Work Act will apply to the enforcement of the enterprise agreement once approved;

    every enterprise agreement must include a flexibility term (as defined in s 202(1)) that enables an employee and his or her employer to agree to an arrangement varying the effect of the enterprise agreement in relation to the employee and employer “in order to meet the genuine needs of the employee and employer” that complies with s 203.

78    The constraints imposed by s 417 on persons bound by an enterprise agreement or workplace determination, including the pecuniary penalty regime, are not in any way incompatible with the freedom to express political opinions. We reject the proposition that the constitutional freedom requires that a relevant person be at liberty to express political opinions at any time and place of his or her choosing, regardless of other obligations. Nothing in the appellants’ submissions leads to the conclusion that the chosen means for achieving the relevant purpose impinge adversely upon the system of representative and responsible government. We see nothing in the imposition of a pecuniary penalty up to the prescribed maximum amount which would so impinge. It may be that these considerations are more relevant to the third question than the second.

79    The appellants seem to rely heavily upon passages in the reasons of McHugh J in Coleman v Power (2004) 220 CLR 1. In that case, McHugh J concluded that the test of inconsistency applied to both the purpose of the legislation and the means adopted for achieving that purpose. However his Honour’s view as to inconsistency appears at [91] as follows:

In determining whether a law is invalid because it is inconsistent with freedom of political communication, it is not a question of giving special weight in particular circumstances to that freedom. Nor is it a question of balancing a legislative or executive end or purpose against that freedom. Freedom of communication always trumps federal, State and Territorial powers when they conflict with the freedom. The question is not one of weight or balance but whether the federal, State or Territorial power is so framed that it impairs or tends to impair the effective operation of the constitutional system of representative and responsible government by impermissibly burdening communications on political or governmental matters. In all but exceptional cases, a law will not burden such communications unless, by its operation or practical effect, it directly and not remotely restricts or limits the content of those communications or the time, place, manner or conditions of their occurrence. And a law will not impermissibly burden those communications unless its object and the manner of achieving it is incompatible with the maintenance of the system of representative and responsible government established by the Constitution.

(Footnotes omitted.) (Emphasis added.)

80    We do not understand his Honour’s reference to restriction on the time and place at which political discourse might occur as implying that there may be no reasonable restriction upon those matters where the relevant person has freely undertaken legal obligations to be elsewhere at a particular time. At [97] his Honour said:

When, then, is a law not reasonably appropriate and adapted to achieving an end in a manner that is compatible with the system of representative government enshrined in the Constitution? In my opinion, it will not be reasonably appropriate and adapted to achieving an end in such a manner whenever the burden is such that communication on political or governmental matters is no longer "free". Freedom of communication under the Constitution does not mean free of all restrictions. The freedom is not absolute or equivalent to licence. The zone of freedom conferred by the constitutional immunity is not, as Higgins J said, in discussing s 52 of the Constitution, an "Alsatia for Jack Sheppards", where law does not run. Communications on political and governmental matters are part of the system of representative and responsible government, and they may be regulated in ways that enhance or protect the communication of those matters. Regulations that have that effect do not detract from the freedom. On the contrary, they enhance it.

(Footnotes omitted.)

81    At [195] Gummow and Hayne JJ said:

In Lange, the Court unanimously held that "[f]reedom of communication on matters of government and politics is an indispensable incident of that system of representative government which the Constitution creates". That freedom is not absolute; "[i]t is limited to what is necessary for the effective operation of that system of representative and responsible government provided for by the Constitution". It operates upon the common law and also, in the manner identified by McHugh J in his reasons in this case, as a restriction on the legislative powers of the Commonwealth, the States and the Territories.

(Footnotes omitted.)

82    See also [256] per Kirby J.

83    In our view there is simply no question of incompatibility.

84    We turn to the question of proportionality. We are, of course, considering the section construed in the way identified above, imposing a penalty for a breach brought about by participation in a rally or march during working hours. At para 96 of their written submissions, the appellants contend that:

... [A] law in workplace relations legislation that prevents employees from engaging in any political action whatsoever, even where that action is unconnected to their work, (1) does not in fact have a rational connection to the purpose of the provision because it does not regulate the relationship of employers and employees, for the reasons set out at [83]-[91] above; (2) is not necessary, because a less restrictive alternative would be to only penalise workers for engaging in action that relates to employer-employee relations; and (3) is not adequate in its balance, insofar as the ability of employees to engage in political action directed towards the State government should not be sacrificed, on pain of civil penalty, for employers to improve efficiency in the workplace.

85    The purpose of s 417 is to ensure compliance by all relevant parties with the terms of the relevant enterprise agreement, so advancing achievement of the legislative objective set out in s 3. It is part of Ch 3 which is headed, “Rights and Responsibilities of Employees, Employers, Organisations, Etc”. The appellants’ basic proposition is that our construction of s 417 would not have a rational connection to the purpose of Ch 3 because, as they submit, it would prevent the employees, as and when and as often as they choose, from, during their hours of employment, engaging in political expression concerning matters unrelated to the employer/employee relationship. The proposition is plainly wrong. The limitation is upon an employee’s failure or refusal to attend for, or to perform work in accordance with his or her obligations. By choosing to work for the employer in question, the employee chooses to perform functions pursuant to the terms of his or her employment, whether they be specified by statute, award, enterprise agreement or otherwise. In so doing, he or she makes a decision about the use of his or her time. If the purpose of the law is to ensure compliance with the terms of an enterprise agreement, then a restraint upon non-compliance plainly has a rational connection to that purpose. Further, we do not accept that the rally and march were unrelated to the appellants’ employment. We have given our reasons for that view.

86    The appellants then submit that the law is not necessary in that there is an obvious and compelling alternative way of achieving the purpose. That alternative involves limitation of the imposition of penalties to conduct related to employer/employee relations. This submission is based upon the proposition that the purpose of the Fair Work Act - regulation of the rights and obligations of employers and employees - does not extend to regulating the consequences of industrial action involving a refusal by an employer or employee to observe the terms of the relevant industrial arrangements. We see no justification for such a narrow construction of the purposes of the legislation. We have already dealt with versions of the same argument arising in connection with the second question.

87    We should say something about the amount of the penalty. It is possible that the maximum penalty for a particular offence may be so high that one might question its underlying purpose. We were told that the maximum penalty for a natural person in the present case is $10,800. We find it impossible to conclude that such a maximum is, in any sense, disproportionate, given the potential cost to others, especially employers and others for whom the economic consequences of unilateral stoppages may be severe, of failure to comply with industrial obligations. A maximum penalty must reflect the wide range of circumstances to which the legislation may apply. Further, the distinction between political and industrial activity may often be difficult to identify. It is unlikely that such a distinction (which the appellants seek to rely upon) would facilitate achievement of the purpose of enforcing compliance with the terms of enterprise agreements in support of the broader objects of the Fair Work Act.

88    The appellants then submit that the law does not achieve an adequate balance between the importance of the purpose to be served and the restriction on the relevant freedom. More particularly, it is said that, “the ability of employees to engage in political action directed towards the State government should not be sacrificed, on pain of civil penalty, for employers to improve efficiency in the workplace”. This rather florid submission highlights the lack of merit in the appellants’ argument. It asserts that the existence of political discourse is dependent upon employees having an absolute right to engage in political communications as and when, and as often as they choose, at any time during their pre-agreed working hours, and for any length of time, without regard to industrial obligations. The expression, “for employers to improve efficiency in the workplace” demonstrates a complete disregard of the need for efficiency in order to survive in a commercial context, and the community’s need to have effective and efficient suppliers of goods and services, all matters which engage the public interest. The submission also ignores the process prescribed in Pt 2-4 of the Fair Work Act for the making of, and terms to be included in, enterprise agreements, including the “flexibility terms” contemplated by Div 5 of that Part. Moreover, third parties can be significantly harmed by such conduct, including, for example, site owners and other contractors in building contract situations.

89    We conclude that the burden imposed by s 417 is reasonably appropriate and adapted to advancing its legislative objective. It is suitable, having a rational connection to the purpose of the provisions. It is necessary in that there is no obvious or compelling alternative, reasonably practicable means of achieving the same purpose, but having a less restrictive effect on political communications. It is adequate in the balance between the importance of the purpose served by s 417 and the extent of the restriction it imposes on such communications. Moreover, the employee is free to engage in political activities as and when it suits him or her in his or her own time. We see no impediment to the adoption of our preferred construction.

A FURTHER POINT OF CONSTRUCTION

90    There is one further point of construction which seems to have received little or no attention at first instance. On appeal, it emerged in the course of the respondent’s oral submissions. In their oral submissions in reply, the appellants sought to rely on it.

91    When s 417(1) and s 19(1)(c) are read together, the statutory prohibition is upon engaging in a failure or refusal by employees to attend for, or to perform work. In the case of each appellant the question to be addressed is how he engaged in such a failure or refusal by employees. The failure or refusal must be by more than one employee. Thus each relevant appellant must have engaged with another employee, or with other employees in failing or refusing to attend for, or to perform work. The word “engage” has a wide variety of meanings. However we consider that the most likely meaning offered by the New Shorter Oxford Dictionary is, “Enter upon or occupy oneself in an activity, interest, etc”. In the Macquarie Dictionary (7th ed) the equivalent meaning is, “to occupy oneself; become involved”. Both definitions seem to contemplate an element of intention.

92    A relevant appellant would, we think, have to know that another employee was, or employees were engaging in industrial action in order that he might be said to have, himself, engaged in it. If, knowing that another or others would probably be failing or refusing to attend for, or to perform work, a relevant appellant might engage in such industrial action simply by, himself, failing or refusing to attend for, or to perform work. His motive for doing so would be irrelevant, as would be the way in which he spent the time during which he should have been at work. Section 417 strikes at engagement, not motive or purpose. The industrial action is failure or refusal to attend for, or to perform work, not doing other things such as attending at a rally or march or, as was suggested in argument, going to the beach.

GROUND 1

93    The appellants submit that the primary Judge erred in placing “a burden” upon each appellant to establish that Crown had authorized or agreed to the relevant industrial action. The appellants accept that they bore an evidential onus, which onus they had to satisfy in order that Fair Work incur the legal burden of disproving authorization or agreement. Fair Work accept that analysis. At trial the appellants relied upon an entry in the Crown site diary. The site diary was designed to be a log of events occurring on the site. It was to be completed by a supervisor. Recorded information included:

    the number of supervisors and leading hands on site; and

    the numbers of workers in various trade areas.

94    There is then a list of eight “events” which might occur in the course of the working day, including “Industrial Stoppages” and “Site Meetings”. The person completing the form was to mark either “Y” or “N” to indicate whether any such event occurred on the day in question. There was space for comments. For 28 February 2013, opposite the event “Industrial Stoppages”, the supervisor has marked “Y” and inserted the note “CFMEU Strike”. Opposite the heading “Site Meetings” he has marked “Y” and inserted the word “Prestart”. Under the heading “General Notes”, the following words appear:

Strike due to meeting called by CFMEU before work – ran over by approx 5 minutes, Matt Waters asked if the blokes would be docked was told not up to JH so blokes went.

95    There is a further note as follows:

March also booked by CFMEU @ 10.30.

96    Under the heading “Lost Time/Delays”, the word “Strike” appears, with a note in the column headed “Men”, possibly indicating that time had been lost through the men’s having taken industrial action.

97    The primary Judge concluded that the note was ambiguous as to whether Crown had authorized or agreed to the appellants’ actions. His Honour particularly noted that the action which occurred was not confined to a “march at 10.30 am”. His Honour seems to have been referring to the fact that, in general, the workers left the site before 10.30 am and stayed away for the rest of the day. His Honour also considered that the later note was contradicted by other entries on the same page.

98    On appeal, the appellants assert that his Honour erroneously placed a burden upon them to establish authorization or agreement. The appellants further submit that:

    the availability of an inference that there had been authorization or agreement was strengthened by Fair Work’s failure to call witnesses who attended under subpoena, presumably officers of Crown;

    the other entries in the site diary on 28 February 2013 supported that inference in that they did not contradict the possibility of authorization or agreement, and that there was no entry recording time lost or delay as a result of the rally and march;

    the evidence (as to the absence of authorization or agreement) was too sketchy to satisfy the standard required by the decision in Briginshaw in that Fair Work, “elected to lead almost no evidence concerning what was said, if anything, to any individual appellants by representatives of Crown”;

    the combination of the flyers and the site diary raised the issue of authorization or agreement, and it was for Fair Work to prove the absence of those matters; and

    his Honour had wrongly placed the onus on the appellants.

99    In its statement of claim, Fair Work pleaded that the industrial action was not authorized or agreed to by Crown. To that plea each appellant pleaded that “[h]e claims penalty privilege and so does not admit”, the allegation. Rule 16.07 (1) of the Federal Court Rules 2011 (the “Rules”) provides that a respondent must specifically admit or deny every allegation of fact in the applicant’s pleading. Further, r 16.07(2) provides that allegations which are not specifically denied are taken to be admitted. Rule 16.07(3) provides that a party may plead that it does not know, and therefore cannot admit a particular allegation. The current Rules make no other provision for non-admission. The position differs from that considered by Graham J in Hadgkiss v Construction, Forestry, Mining & Energy Union (2005) 146 IR 106. Under O 11 r 13 of the rules then in force, a party could “traverse” an allegation, either by denial or specific non-admission. Graham J considered that a respondent could, under those rules, not admit. However his Honour considered that to decline to plead on the ground that it might incriminate the pleading party would risk deemed admission pursuant to O 11 r 13(1). A non-admission would not have that effect. Under the present Rules, a plea of non-admission is deemed to be an admission. Hence on one view each appellant could be taken to have admitted the allegation that industrial action had not been authorized or agreed to by Crown. Nonetheless the case seems to have been conducted on the basis that the appellants could “not admit” without the consequence that such a plea would constitute an admission. Fair Work accepts that if the appellants point to sufficient evidence from which it could reasonably be inferred that there had been authorization or agreement, it would have to disprove such matters.

100    We accept that, subject to the following observations, the privilege against self-exposure to a penalty, like that against self-incrimination, cannot be abrogated by a rule or order of Court: Reid v Howard (1995) 184 CLR 1 at 8 per Deane J, 14, 16-17 per Toohey, Gaudron, McHugh and Gummow JJ. In The Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543 at [31] Gleeson CJ, Gaudron, Gummow and Hayne JJ said that:

the privilege against exposure to penalties serves the purpose of ensuring that those who allege criminality or other illegal conduct should prove it.

(Footnote omitted.)

101    Nonetheless in Police Service Board v Morris (1985) 156 CLR 397 the High Court considered legislation which required a police officer to comply with a lawful order. In the course of an inquiry, two officers refused to answer questions when ordered to do so. The proceedings in question could have led to the imposition of penalties. The majority held that the relevant legislation, and the regulations made under it, evinced an intention that the privilege be abrogated. The legislation provided that the Governor in Council could make regulations for, or with respect to:

(df)    the government of the members of the [police] force;

(dg)    any matter necessary or expedient to promote the efficient discharge of duties by any member or any class of members of the force.

102    The relevant regulation related only to disobeying a lawful order. Much that was said about the special position of the police force would equally apply to the judicial system. Following the adoption of Pt VB of the Federal Court Act, one might well argue that facilitation of the just resolution of disputes may necessitate a rule which compels the advance identification of any defence, to that extent abrogating the right to decline to expose oneself to a penalty. Indeed, the Court of Appeal of New South Wales has said as much in MacDonald v Australian Securities and Investments Commission (2007) 73 NSWLR 612. In that case, after an examination of the cases, Mason P said at [71]-[74]:

71    In my opinion, these principles mean that the claimant should not be compelled to include in his Defence any information that may have the tendency to expose him directly or indirectly to the penalties being sought by ASIC.

72    To draw the line conceptually at this point will not relieve the claimant from compliance with UCPR rr 14.14 and 15.1 so far as disclosing in his pleading his intention to invoke the statutory defences or any other “positive” defence, regardless of where the onus lies in establishing that defence. Not every form of affirmative defence has the requisite tendency. I see nothing wrong with a pleading in the following form:

If, which is denied, the matters alleged in para X constitute a contravention of sY of the Corporations Law, the defendant says that the matters alleged by ASIC also establish that the claimant relied upon information or professional or expert advice (etc) / acted honestly (etc). The defendant reserves the right to advance in his case additional material in support of his defence, the details whereof will be disclosed by amending this paragraph after the close of ASIC’s case.

See also Laws v Australian Broadcasting Tribunal [1990] HCA 31; (1990) 170 CLR 70 at 86, Bridal Fashions at 117.

73    In the Matter of Water Wheel Mills Pty Ltd (Victorian Supreme Court, Mandie J, 22 June 2001, unreported) involved a civil penalty claim under the Corporations Law. Mandie J declined to order a defence to be filed going beyond one indicating the matters admitted, denied or not admitted. His Honour was not persuaded to follow Bridal Fashions. He considered that any meaningful pleading of affirmative allegations by way of defence might expose the defendants to a civil penalty or put the plaintiff upon notice of a train of enquiry which might expose the defendants to a civil penalty.

74    I respectfully disagree. In my view, the Rules ought to be departed from no more than is necessary to give effect to the privilege. The pleading mechanism I have suggested would require the claimant to invoke from the outset any relevant defence or statutory ground of dispensation; and it would require him to identify any parts of ASIC’s own allegations intended to be relied upon in that regard. There would also be a framework that defines the legal issues throughout the trial against which rulings as to admissibility could be made (at least in some circumstances). If and to the extent that the claimant exercised his right to plead and particularise in the manner indicated and not to waive his privilege by venturing further, there will still be the likelihood of ASIC’s evidentiary case being split more than it otherwise might be, but at least this consequence would be reduced to a minimum.

103    Giles JA agreed with the reasons of Mason P, his Honour considering that the reasons of Spigelman CJ were not inconsistent with those reasons, although the Chief Justice had reached a different outcome.

104    To the extent that the decision relies upon New South Wales legislation and rules, there appears to be little difference between the position in that State and that which prevails in this Court. It is important to note that at [72], Mason P made it clear that when he spoke of a “defence”, he included statutory defences and any other “positive” defence, regardless of where the onus might be in establishing that defence. Much of his Honour’s reasoning seems to have been based on the simple proposition that pleading the facts necessary to establish a defence (or raise it) will not necessarily amount to exposure to the risk of incurring a penalty.

105    We have little doubt that for the appellants to rely upon alleged authorization or agreement, is to advance a “positive” defence which, according to the decision in MacDonald, should have been pleaded. We would say the same about a claim of illness, that a particular appellant was unable to access the site or that such an employee was “off”, if that term meant anything more than that he was engaging in industrial action. However it is not necessary for us to decide this matter. Fair Work seems to have been content to conduct the case on the basis that the appellants were not obliged to plead these matters. Rather, it asserted that the appellants had not satisfied evidential burdens concerning them.

106    The question of evidential onus is addressed in JD Heydon, Cross on Evidence (LexisNexis, 10th ed, 2015) at [7015] as follows:

An evidential burden is not a burden of disproof. Rather the evidential burden is the obligation to show, if called upon to do so, that there is sufficient evidence to raise an issue as to the existence or non-existence of a fact in issue, due regard being had to the standard of proof demanded of the party under such obligation. The concluding clause is designed to meet the point that the amount of evidence required to induce a judge to leave an issue to the jury varies, according to whether the case is civil or criminal, and whether the party bearing the burden is plaintiff, prosecutor, defendant or accused.

The phrase "evidential burden" is employed by Lord Bridge and Professor Glanville Williams (while Phipson has spoken with equal accuracy of the "burden of adducing evidence"). It is a phrase which is coming to be increasingly used by English judges. Wigmore described it as the duty "of passing the judge'', and there is no doubt that the difference between the two principal burdens is best approached by considering the position of plaintiffs or prosecutors with regard to issues which are about to be tried with a jury, such as negligence, or the commission of a criminal act by the accused. They have two hurdles to surmount. First, they must produce a sufficient quantity of evidence to prevent the judge from withdrawing the issue from the jury. Secondly, they must convince that body. If they surmount the first, they may yet fail at the second. This may be because the jury do not believe their witnesses, or will not draw the necessary inferences, or else because of the doubt raised by the counter-evidence. To quote Wigmore:

The important practical distinction between these two senses of "burden of proof" is this: The risk of non-persuasion operates when the case has come into the hands of the jury, while the duty of producing evidence implies a liability to a ruling by the judge disposing of the issue without leaving the issue open to the jury's deliberations.

Two further points must be stressed in connection with the definition of the evidential burden. In the first place, it caters for the abnormal situation where the party who starts with the legal burden of proof does not also bear the evidential burden, as well as for the normal situation where they are each borne by the same person in the first instance. To vary an illustration which has already been given with reference to self-defence: on a prosecution for murder, for example, the Crown has the legal burden of negativing provocation, but questions of provocation do not have to be considered by the jury unless there is evidence on the subject. Depending on what follows, it is up to the accused to produce or elicit this evidence, although it will be sufficient if the evidence might raise a reasonable doubt in the minds of the jury as to whether the conduct was provoked or unprovoked. Secondly, it must not be supposed that the production of evidence always involves the calling of testimony or the tendering of documents by the party on whom the evidential burden rests in that party's own case. This will be necessary in the vast majority of cases in which an evidential burden has to be discharged, but it may be discharged by cross-examination of witnesses called by the other party and there are rare instances in which the evidence called on the other side is such that it discloses facts which might give rise to a defence. On a prosecution for murder, the Crown witnesses might say enough in chief about provocation to make the judge feel obliged to raise the question in summing up, although the matter will usually be brought before the court in consequence of the cross-examination of the Crown witnesses, reinforced by material brought forward by the accused.

Where the evidence is sufficient to raise a defence which the accused does not wish to raise, and the defence is "optional" in the sense that the defence is not to be raised unless the accused chooses to, the defence should not be left with the jury.

(Footnotes omitted.)

107    Fair Work submits that the words, “sufficient evidence from which it could reasonably be inferred” are derived from the decision of the High Court in R v Falconer (1990) 171 CLR 30. That case involved an assertion by the accused that the act in question was not a willed act because she was in a state of non-insane automatism. By definition, the requirement that an accused person must prove insanity did not apply and so, if the “defence” was raised by the accused, it was for the Crown to exclude it beyond all reasonable doubt. At 41, Mason CJ, Brennan and McHugh JJ said:

Although the prosecution bears the ultimate onus of proving beyond reasonable doubt that an act which is an element of an offence charged was a willed act ... the prosecution may rely on the inference that an act done by an apparently conscious actor is willed or voluntary to discharge that onus unless there are grounds for believing that the accused was unable to control that act.

108    At 61, Deane and Dawson JJ said:

The onus of proving guilt remains with the prosecution and that onus is not discharged if an accused is able to raise a reasonable doubt. Of course, common experience teaches us that a person's will ordinarily accompanies his actions and evidence will be required to establish the extraordinary circumstance that an accused's acts occurred independently of the exercise of his will or to raise a doubt whether that was so. It is sometimes said in that situation that the accused is required to rebut an evidentiary presumption or to discharge an evidentiary burden of proof, but it is merely a requirement that there be evidence to displace ordinary human experience. And it will not be enough for an accused merely to assert that his acts were involuntary or that he suffered a loss of memory. Evidence of his condition at the time of the alleged offence supported by some expert medical opinion will be required before an issue of sane automatism can realistically be said to be raised.

109    At 83, Gaudron J said:

An evidentiary presumption means only that, without evidence one way or another, a particular state of affairs is accepted as fact because it is ordinary and universal experience that, save perhaps in extraordinary situations, it is always so. The practical effect of an evidentiary presumption, based as it is on ordinary and universal experience, is that it can only be displaced by credible evidence assigning a cause sufficient to explain what, if it happened at all, must be viewed as an extraordinary event.

110    We understand the above extract from Cross to state that in a civil trial, a defendant will satisfy the evidential onus if there is sufficient evidence from which the tribunal of fact could (not would) infer the matter asserted by the defendant, whether it be a positive or negative assertion. However the appellants, in their submissions in reply at para 5, submit that in order to discharge the evidential burden, they had only to raise a reasonable possibility that their actions had been authorized. Authority for this proposition is said to be found in the judgment of Heydon J in Strong v Woolworths Ltd (2012) 285 ALR 420 at [51]-[52], where his Honour cited Jayasena v The Queen [1970] AC 618 at 624. Although, in Jayasena, there is reference to the evidential burden requiring, “enough evidence to suggest a reasonable possibility”, that was in the context of criminal proceedings. We do not understand Heydon J to have adopted that test for application in civil proceedings. At [52] his Honour cited the test, in the case of a defendant, as requiring that there be sufficient evidence to prevent the issue being withdrawn from the tribunal of fact. As we have said, such withdrawal would only occur if there was insufficient evidence upon which the tribunal of fact could base a finding in favour of the party bearing the evidential onus. In this regard we refer again to Falconer at 61.

111    The site diary records events occurring on the day in question rather than advance bookings. The notes in the site diary are primarily concerned with the “strike”, by which term the relevant Crown officer seems to have meant failure to attend, or to perform work after Mr Chaseling’s refusal to confirm that the workers would be paid, notwithstanding their late arrival on site. The reference to the rally seems to have been added as an afterthought, or as an addition for the sake of completeness. Whilst it demonstrates that the relevant Crown officer knew that there was to be a rally and march, there is no basis for inferring that such activity had been authorized or agreed to by Crown. Further, there is no evidence that employees or their representatives had any reason to believe that authorization or agreement had been given. The site diary also recorded that two elevated work platforms had been hired for the day. That entry makes it the more improbable that the note about the march being “booked by CFMEU @ 10.30” was a recording of a grant of permission for the men to attend the march, since the hire of the equipment on that day then would have been for naught.

112    Moreover, Mr Chaseling said that he attended two toolbox meetings, the first at 2.50pm and the second at 3.45pm on the site and read a script to the workers (about 40 at the first, and 24 at the second meeting), although there was no evidence that any of the appellants was present at either meeting. Mr Chaseling’s script of his toolbox talk on the afternoon of 27 February 2013 made the point, that on the previous Tuesday (19 February 2013), the Commission had made a return to work order for a six month period that was applicable to all CFMEU members or anyone eligible to be a member who was working on the site. The script recorded that a person who breached the order was personally liable to be fined by the Commission of up to $6,600 per breach. It recorded that it was important that everyone be aware of the Commission’s order and its implications. The script referred to a copy of the Commission’s order being posted in the crib rooms and provided at the toolbox talks. It concluded:

The site is open tomorrow and will be fully operational for the entire day. You need to aware that if you are not onsite tomorrow and do not have prearranged annual leave what the implications are.

113    The nature of the statements in the script and its references to the Commission’s order (albeit read by a John Holland officer) make it unlikely that something occurred subsequently amounting to a grant of permission by Crown (as opposed to Mr Chaseling’s employer, John Holland, the head contractor at the site) for the appellants to be absent from work on 28 February 2013.

114    The appellants submitted that their case was strengthened by Fair Work’s failure to call Crown officers to disprove the assertion that there had been any such authorization or agreement. This proposition begs the question. There was no requirement that Fair Work call such evidence, if the evidential burden had not been discharged.

115    In the course of argument, it was suggested to counsel that the appellants’ proposition was, in any event, inconsistent with the decision of the High Court in Australian Securities and Investments Commission v Hellicar (2012) 247 CLR 345. In that case the Court of Appeal of New South Wales had proceeded on the basis that ASIC’s failure to call a witness who might have had relevant knowledge led to, “some indeterminate discount to the cogency of whatever evidence was called in proof of ASIC’s case.” At [155] the majority (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ) observed:

But it is then important to recognise what conclusions could follow if, as the Court of Appeal held, ASIC was under a duty to call Mr Robb. If there was such a duty (and these reasons will explain that ASIC not calling Mr Robb was not unfair to the respondents or any other defendant) it would be expected that the remedy for breach of the duty would lie either in concluding that the primary judge could prevent the unfairness by directing ASIC to call the witness or staying proceedings until ASIC agreed to do so or, if the trial went to verdict, in concluding that the appellate court should consider whether there was a miscarriage of justice that necessitated a retrial. But no solution to the hypothesised unfairness could be found by requiring that the primary judge or an appellate court apply some indeterminate discount to the cogency of whatever evidence was called in proof of ASIC's case. This would seem to be no more than an attempt to “punish” a regulatory authority by denying it the relief it seeks. But that approach would fail to recognise that the regulatory authority seeks the remedy it does for public and not its own private purposes. It is an approach that would seek to supplement, needlessly, the long-established and generally applicable principles that are engaged when a party to litigation does not call evidence that it could be expected to call. The asserted principle would evidently have no satisfactory roots. And because the notion of “discounting” the evidence is necessarily indeterminate, the asserted principle would have no certain content.

(Footnotes omitted.)

116    Heydon J took a similar view. We see no difference between the proposition there rejected by the High Court and that advanced by the appellants in this case.

117    The appellants also submit that Fair Work’s evidence was so sketchy that inferences to the “Briginshaw standard” “were difficult to draw”. In Briginshaw, Dixon J (as his Honour then was) said at 361-362 as follows:

Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters “reasonable satisfaction” should not be produced by inexact proofs, indefinite testimony, or indirect inferences.

118    This test now has statutory effect. See s 140 of the Evidence Act 1995 (Cth) (the “Evidence Act”).

119    The appellants submit that the evidence relied upon by Fair Work was “sketchy” so that inferences “were difficult to draw”. It was further said that:

Where the evidentiary matrix is thin, conjecture rather than inference arises, and [Fair Work] elected to lead almost no evidence concerning what was said, if anything, to any individual appellants by representatives of Crown.

120    The appellants made no attempt to identify the inferences which were, “difficult to draw”. The submissions in question concerned the question of authorization or agreement. The appellants, not Fair Work, were asserting the availability of an inference that authorization or agreement had been given in order to discharge the evidential onus.

121    The appellants seem to suggest that the flyers concerning the rally in some way supported their claim that Crown authorized or agreed to the relevant industrial action associated with the rally. The flyers indicated that the rally and march were to commence at midday. As we have previously observed, it seems to have been common ground that there was a likelihood that workers would leave the site because of the planned rally and march, even if they did not propose to participate. It seems probable that Crown was aware of the contents of the flyers. However it is difficult to infer that Crown gave authorization or approval in view of Mr Chaseling’s statements at the tool box meetings on 27 February 2013. Whilst it may seem odd that he, and not Crown officers, conducted those meetings, such apparent oddity is explained in Ms Hale’s affidavit. Her duties extended to, “monitoring all the industrial relations issues and managing all the union interactions that arise in relation to the [new children’s hospital] on behalf of John Holland”. Ms Hale also made it clear that her duties involved working directly with John Holland employees and with sub-contractors. Her presence with Mr Chaseling indicates that the tool box meetings were part of a function for which John Holland was responsible. In light of his statements, it is impossible to infer that Crown authorized or agreed to the relevant industrial action. The appellants derive no assistance from the other matters to which they have referred. Moreover, as we have noted the site diary recorded that equipment had been hired for 28 February 2013.

122    To the extent that the appellants submit that the primary Judge placed upon them the legal burden of proving authorization, we suspect that they are the victims of their own misconceptions. As we have said, in their submissions in reply at para 5, they submit that to discharge the evidential onus, they had only to, “point to evidence that raised a reasonable possibility that the action was authorized”. As we have observed, that proposition reflects the criminal standard of proof rather than that applicable in civil matters. We have previously pointed out that in civil trials, the evidential burden will be satisfied if the trial judge considers that there is sufficient evidence of the matter in question to justify leaving it to the jury. In a trial by judge alone, such a test may seem a little artificial. However it has utility where a party, who might eventually bear the legal onus, does not call evidence on that issue. If the other side can point to evidence which would justify the Court in inferring a conclusion unfavourable to the party bearing the legal onus, then it inevitably follows that such party has not discharged its legal burden. That result follows, not because the party bearing the evidential burden has discharged the legal burden, but because that party has raised an available inference to that effect, which inference has not been displaced.

123    The appellants’ second misconception is that the site diary was capable of establishing a basis for inferring authorization or agreement. Whilst it demonstrates knowledge of intended action at 10.30 am, it says nothing about Crown’s attitude to such intended action. Further, as his Honour pointed out, it says nothing about conduct prior to 10.30 am or later in the day. The flyers indicated that the rally would commence at 12 noon. Obviously, it would have taken some time for Crown employees to travel from the site to the Supreme Court Gardens where the rally was to occur, before the march to Parliament House. We do not accept that the site diary offers any basis for inferring that Crown authorized or agreed to its employees so absenting themselves. Mr Chaseling’s statements on 27 February 2013 were very much to contrary effect. Further, the appellants do not suggest any authorization or agreement to employees leaving the site following the exchange between Mr Waters and Mr Chaseling.

124    Finally, the appellants submit that the primary Judge’s remarks at [56] disclose error. His Honour said:

I am not satisfied in these circumstances that the Court may reasonably infer that the industrial action, which has otherwise been proved by [Fair Work], was action by employees that was authorised or agreed to by [Crown] the employer of those employees, for the purposes of s 19(2)(a) of the [Fair Work] Act. Not only is the entry relied upon by the [appellants] ambiguous as to whether Crown authorised or agreed to the actions of the [appellants] proved by the evidence, which is not confined to a march at 10.30am, but it is contradicted, in my view, by the above entries that precede and follow it.

125    His Honour’s language is quite consistent with the above analysis of the evidential onus as it applies in this case. The primary Judge did not decline to draw the relevant inference. He rather held that there was insufficient evidence upon which to infer authorization or agreement. Thus Fair Work incurred no legal onus to establish absence of authorization or agreement. In other words, the appellants had not satisfied the evidential onus. The appellants must fail on ground 1.

126    We should add that in the next part of these reasons, we discuss the decision of the High Court in Jones v Dunkel, concerning the available inferences where a party does not call a particular witness. In connection with ground 1, the appellants sought to rely on that decision in asserting that adverse inferences should be drawn from the failure by Fair Work to call officers of Crown to give evidence concerning the question of authorization or agreement. We have pointed out that as against Fair Work, the failure to call such witnesses could not detract from the strength of the evidence actually led. Hence it was not necessary, in that context, to deal with the decision in Jones v Dunkel as against Fair Work. However that decision may well have justified adverse inferences against the appellants in connection with the question of authorization or agreement. A likely inference is that none of them had any reason to believe that there had been any such authorization or agreement.

APPEAL GROUNDS 2 AND 3

127    Ground  2 attacks the way in which the primary Judge dealt with the evidence, asserting that his Honour did not address the case against each appellant separately. Ground 3 asserts that in the case of each appellant, there was insufficient evidence to justify the finding that each had contravened s 417. At the trial, the parties seemed satisfied to analyze the evidence against each appellant by grouping them in classes, such classification being based upon the evidence available against each appellant. Nonetheless at the trial, and on appeal, counsel for the appellants has made it clear that the case against each appellant must be considered separately. On appeal they asserted that the primary Judge did not do so. Little effort was made to demonstrate that his Honour’s consideration of each individual case had miscarried. Rather, the appellants asserted that the category-based approach, to which no specific objection was taken at trial, was nonetheless flawed as a method. We should also add that at times, counsel for the appellants seemed to assume that separate consideration of each case necessitated the disregard of the context in which each appellant’s conduct occurred, at least to the extent that such evidence was as to the conduct of other appellants at the relevant times and/or places.

128    Rather than seeking to unpack the approach taken by the primary Judge, we propose, with the benefit of hindsight, to adopt a different approach which, nonetheless, involves a degree of categorization. We should say that at para 4 of the appellants’ written outline, they seem to have accepted that this Court would be at no disadvantage, compared to the primary Judge, “in assessing the safety of the inferences for which [Fair Work] contended”. We understand the submission to be that should any part of the appeal succeed, this Court would be in as good a position as the primary Judge to reconsider the available inferences.

129    A number of findings underlay the way in which the primary Judge dealt with the evidence. His Honour:

    found that all of the appellants were scheduled to start work at 6.30 am;

    found that the electronic card readers could be relied upon for the correctness of the data which they collated;

    found that the electronic card readers, payslips, timesheets and sign on/off sheets all “speak for themselves”;

    inferred that where an appellant was not paid for 28 February 2013, he probably did not work on that day; and

    did not accept that the presence of the word “sick” on an appellant’s timesheet was a basis for inferring that such appellant was ill on 28 February 2013.

130    Of these findings, we understand that only the last is presently controversial. His Honour did not deal expressly with a group of appellants with respect to whom the timesheets bore the word “off”, nor with a group who claimed to have been unable to access the site.

131    There are apparent inconsistencies between information appearing in the electronic card reader records, and information appearing in the sign on/off sheets. Whilst the electronic card readers recorded entries and exits to the sites in an automated way, entries in the sign on/off sheets seem to have depended upon individual employees. Obviously it was entirely within the capacity of each appellant to enter or not enter his on/off times, and/or to do so accurately or inaccurately. In any event, the inconsistencies may not matter much. The employees also inserted information into the timesheets. Similar comments apply.

132    The appellants’ submissions concerning appeal grounds 2 and 3 sought to detract from Fair Work’s case by setting up alternative cases, and then seeking to demolish them. This approach frequently involved mis-statements of the primary Judge’s reasons. Thus, in their outline at para 23 the appellants submitted that his Honour found at [34]-[35] that there were two reasons for the appellants leaving the site:

    the exchange between Mr Chaseling and Mr Waters concerning the docking of pay; or

    the rally scheduled to take place later that day.

133    In fact the primary Judge found that at least some of the appellants’ left the site following that exchange. His Honour also found that to the extent that some of the appellants either did not return to work after the exchange or returned to work but then left, having regard to that exchange, or because of the scheduled rally and march, the action had an industrial character.

134    At para 49 of their outline, the appellants submitted that the primary Judge treated the appellants as a “collective unit” to which he attributed one of two motives for leaving the site, or not attending on that day. Again the appellants relied upon the reasons at [34]-[35]. Clearly, his Honour did no such thing. The appellants then submitted that his Honour ought to have considered, “what evidence there was in respect of any individual [appellant], assessed independently of the case against the other appellants”, to decide whether the appellant in question had left for one of the two reasons. We have previously held that it was not incumbent upon Fair Work to prove motive, purpose or reason. At paras 49-51, the appellants submitted that:

49.    ... In fact, his Honour appeared to start from the premise at [34] of his reasons that the action taken by all appellants was presumptively industrial, where his Honour said:

there is nothing in the circumstances of this case to suggest that the pleaded action of the respondents in failing to attend for work or in failing to perform work where they did, is not industrial in character. There is no evidence to suggest, for example, that what they did stood completely outside the area of disputation and bargaining.

50.    This was, however, to start from fundamentally the wrong position. His Honour should have considered what action each appellant worker actually performed, and whether there was evidence to establish that this action was industrial.

51.    Had His Honour considered each individual appellant and the evidence admissible against him, he was bound to find there was insufficient evidence upon which to infer to the Briginshaw standard that any proved action was done for an industrial reason. In many cases there was no evidence of what action an individual took at all. Nor did investigators try to establish – by finding CCTV evidence, telephone evidence, or direct testimony – that any appellant worker was present. Mr Atwell, for example, is not proved to have attended at the site at all on 28 February, nor to have attended the union meeting, heard the words of union officials, recognised the “pay-docking” issue which emerged after 6.34 am, or attended the political march/rally. His actions are entirely unknown. Even if he did not work that day, it is mere conjecture to assert that he acted for an industrial reason.

(Footnotes omitted.)

135    The appellants then referred to the “sick”, “off” and “could not access/enter” entries on the timesheets. We will deal with these matters at a later stage.

136    Subject to the specific matters to which we have referred, there is a simple answer to these propositions. Fair Work’s case did not depend upon any action by an appellant other than failure or refusal to attend for, or to perform work. Evidence of motive, purpose or intention may have had some peripheral relevance to the case, but Fair Work had no obligation to establish such matters. The only non-physical aspect of the alleged conduct was the question of knowledge implied in the concept of engaging in industrial action as previously explained.

137    At para 57 of their outline, the appellants complained that the evidence was, “notably narrow, selective and sketchy”. They complained that no effort was made to call Crown officers. The appellants speculated as to evidence which two of those officers might have given and asserted that his Honour ought to have drawn a “relevant adverse inference” against Fair Work. We have already disposed of that submission. Further, we consider that having regard to the essentially simple nature of Fair Work’s case, the evidence cannot properly be described as, “narrow, selective and sketchy”.

138    The appellants then submitted that there was no basis advanced by Fair Work for suggesting that, “the actions of any appellant were admissible (or cross-admissible) against any other”. It is further asserted that, “[n]o conspiracy, concert or agreement was pleaded, alleged or proved”. As far as we can see his Honour considered the evidence of each appellant in light of events as a whole, including the conduct of other appellants. Whilst no conspiracy is pleaded, the conduct contemplated by s 19(1)(c) was action by “employees”. Section 417(1) forbids organization of, or engagement in such conduct. Setting aside the question of organization, the pleaded proscribed conduct was engaging in conduct with at least one other person. When the combined effect of the relevant provisions is understood, it is clear that paras 12-15 of the statement of claim does, in effect, plead action in concert. The primary “evidence” against each appellant was the fact of not attending for, or performing work. The evidence against each appellant concerning those matters was discrete. To the extent that the appellants asserted that the evidence concerning the conduct of each appellant was to be considered without regard to the surrounding circumstances, including the actions of other employees, (including other appellants), we do not accept the submission. There is an available inference that the absence of each employee was attributable to the expectation that other employees would fail or refuse to attend for work, or to work on 28 February 2013. That many of them so acted, strengthens the inference of prior knowledge, based on the events to which we have referred.

139    The appellants’ concerns about the way in which the primary Judge dealt with each case seem to be based upon the erroneous assumption that Fair Work had to prove that each appellant had a particular purpose, motive or intention in not attending for, or performing work which purpose, motive or intention could be described as “industrial”. In fact, it was only necessary that Fair Work prove that each had engaged in industrial action as that term is defined in s 19(1)(c). Fair Work had to prove that on the relevant date, each appellant failed or refused to attend for work, and/or failed or refused to perform any work. Any demonstrated failure to attend, or to perform work must be seen in light of the surrounding circumstances, namely:

    that there was a site meeting prior to the commencing time for work, a confrontation between Messrs Waters and Joshua and Mr Chaseling concerning the late start to work, and advice to workers not to enter the site as payment had not been guaranteed;

    the fact that the rally and march were scheduled for that day and that the unions were encouraging attendance;

    the meeting on 27 February 2013 concerning the rally and march and the tool box meetings on that day; and

    the absence of so many employees from the site and/or their failure to perform work on that day.

Our approach to the evidence

140    We propose to approach the evidence in a different way from that adopted by the primary Judge. We do so partly because of the appellants’ complaint that his Honour did not consider each appellant’s case separately and partly because, with the benefit of hindsight, we consider that we can present the evidence in a more transparent way. We take para 4 of the appellants’ submissions (referred to above) as an invitation to draw such inferences as we consider appropriate, having regard to the way in which the matter was conducted at first instance and on appeal. This approach will provide a basis for considering appeal grounds 2 and 3 and, should it be necessary, will assist us in re-considering the issues, having regard to any detected error in the primary Judge’s reasons.

The evidence

141    It is common ground that none of the 74 appellants was shown in the timesheets as performing any work on 28 February 2013 and, according to the payslips, none was paid for that day. Of the 74 appellants, 46 (the “group of 46”) were not recorded as entering or leaving the site on 28 February 2013 by the electronic card readers or the sign on/off sheets. None is shown in the timesheets as having worked and, according to the payslips, none was paid. This evidence would not necessarily exclude attendance at the meeting, but nothing hangs on that fact. It is reasonable to infer that none of those 46 entered or left the site on that day, or performed any work. Of this group:

    in 16 cases, the word “sick” was entered on the timesheets;

    in two cases, the word “off” was inserted in the timesheets; and

    in two cases, entries in the timesheets suggested that the relevant appellants had been unable to enter the site.

142    The 46 appellants in question are:

143    The number next to a name indicates that the relevant appellant was shown on the timesheets as having been:

(1)    sick;

(2)    off; or

(3)    unable to reach/access site.

144    With the exception of the three classes of notation on the timesheets, we see no basis for separate treatment of any of the group of 46. We shall deal with the three classes of notation at a later stage. Obviously, none of these appellants attended for work or performed any work on 28 February 2013.

145    According to the electronic card reader records, of the remaining 28 appellants (the “group of 28”), 25 entered, left or entered and left the site, in some cases on multiple occasions. Of those 25, 23 also signed “on” or “off” or both on his timesheet. Three appellants, not shown by the electronic card readers as having entered, left or entered and left the site, are nonetheless shown as having signed on, signed off or signed on and off.

Jones v Dunkel

146    The appellants and Fair Work place great importance upon the operation of the decision in Jones v Dunkel. That case has been considered and applied in many cases. The decision, itself, must be read in the context of those cases. In Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361, Heydon, Crennan and Bell JJ said at [63]-[64]:

63.    The rule in Jones v Dunkel is that the unexplained failure by a party to call a witness may in appropriate circumstances support an inference that the uncalled evidence would not have assisted the party's case. That is particularly so where it is the party which is the uncalled witness. The failure to call a witness may also permit the court to draw, with greater confidence, any inference unfavourable to the party that failed to call the witness, if that uncalled witness appears to be in a position to cast light on whether the inference should be drawn. These principles have been extended from instances where a witness has not been called at all to instances where a witness has been called but not questioned on particular topics. Where counsel for a party has refrained from asking a witness whom that party has called particular questions on an issue, the court will be less likely to draw inferences favourable to that party from other evidence in relation to that issue. That problem did not arise here. The plaintiff's counsel did ask the plaintiff relevant questions.

64.    The rule in Jones v Dunkel permits an inference, not that evidence not called by a party would have been adverse to the party, but that it would not have assisted the party. ...

(Footnotes omitted.)

147    In the present case, none of the appellants gave evidence or called any other witnesses. The appellants submit, without reference to any supporting authority that the rule in Jones v Dunkel ought not apply in circumstances in which penalty privilege has been claimed. There are authorities to the contrary. See Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Competition and Consumer Commission (2007) 162 FCR 466 at [76] per Weinberg, Bennett and Rares JJ, see too at [28]; Adler v Australian Securities and Investments Commission (2003) 179 FLR 1 at [659]-[661] per Giles JA, Mason P and Beazley JA concurring. See also Australian Securities and Investments Commission v Fortescue Metals Group Ltd (No 5) (2009) 264 ALR 201 at [85]-[100] per Gilmour J and the considered, although tentative view of the Victorian Court of Appeal in Chong v CC Containers Pty Ltd [2015] VSCA 137 at [213]-[229]. We proceed upon the basis that the rule in Jones v Dunkel may be applied in pecuniary penalty proceedings. We have previously referred to the care which must be taken in applying the decision to a regulator which is still obliged to prove its case on the balance of probabilities in accordance with s 140 of the Evidence Act: Australian Securities and Investments Commission v Rich (2004) 220 CLR 129 at [24] per Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ.

148    As none of the appellants chose to give evidence, it follows that an available inference is that the evidence which any of them could have given would not have assisted that appellant’s case concerning:

    whether he failed or refused to attend for work or to perform work;

    the “industrial characterization” of such conduct;

    the significance of the word “sick” written on the timesheets;

    the significance of the word “off” written on the timesheets; and

    the significance of the words “could not reach/access site” written on the timesheets.

149    Below, we summarize the evidence concerning the group of 28 who were on site on 28 February 2013. The summary is based upon an aide memoire provided by the appellants. We also draw some inferences from the summarized facts and from the other facts of the case.

Engaging in industrial action

150    We infer that all of the group of 28 either did not enter the site or withdrew, following Mr Waters’ exchange with Mr Chaseling and the former’s encouragement or direction that they not go to work. Obviously, not all of the employees in the vicinity would have heard the exchange. However it is probable that all of them became aware of it in one way or another and left the site, either because of Mr Waters’ encouragement or direction or because other employees were not entering the site or were leaving without performing work. We infer that, subject only to the three categories of notation on the timesheets, all of the group of 28, failed or refused to attend for, or to perform work on 28 February 2013, and thereby engaged in industrial action by Crown employees. This aspect of the case is a little more complicated because of the proposed rally and march. It may be possible only to say that the appellants in the group of 28 engaged in industrial action without identifying whether such engagement was in connection with the exchange or the rally and march. We will return to this matter.

151    The group of 46, who were not at the meeting or otherwise on site on 28 February 2013, cannot be taken to have had knowledge of the exchange between Mr Waters and Mr Chaseling, or of any action by workers following such exchange. In order to infer that they engaged in industrial action, it is necessary to demonstrate that they did not attend, knowing that others would fail or refuse to attend for, and/or perform work for reasons associated with the proposed rally and march. It would not matter that they stayed away for purposes unrelated to the rally and march. Illness on the day may be an exception to that conclusion, simply because the enterprise agreement made provision for non-attendance by reason of sickness. We will return to that question and to the other notations on the timesheets.

152    As concerns the rally and march, the case against all of the appellants is that they knew that there was to be a rally and march on 28 February 2013. Such knowledge was derived from the flyers, the meeting early on 27 February 2013, the tool box meetings on that day and, inferentially, discussions on site concerning those matters. Of the group of 46, all but two were at work on 27 February 2013.

153    The appellants’ case was conducted on the basis that Crown knew about the flyers and their content. See the appellants’ outline of submissions at para 45. We infer that all appellants also had such knowledge. At Mr Chaseling’s tool box meetings on 27 February 2013, he said that on that morning, there had been a meeting of employees at which the proposed rally was discussed. Mr Chaseling made it clear that absence from work would be unlawful industrial action, although he may have been relying to some extent, on an order by the Fair Work Commission rather than s 417. That distinction is of no present significance. The point is that on 27 February 2013, there had been discussions about the proposed rally, and the matter had been raised at various tool box meetings, including two such meetings for Crown employees. A relatively large number of Crown employees attended. We infer that any Crown employee on site on that day would have been aware of the proposed rally and march and the associated likely absence from work, irrespective of any knowledge of the flyers or their content. Hence we infer that those appellants who were at work on 27 February 2013 probably knew of the proposed rally and march on 28 February 2013, and that some Crown employees would probably fail or refuse to attend for work, or to work on the latter date.

154    The timesheets demonstrate that two of the group of 46 were absent from work on 27 February 2013: Mr Calleja who was sick, and Mr Tabbakh who was on a rostered day off work. We cannot infer that they were aware of events which occurred on site on that day. However there is an available inference that they knew of the proposed rally and march because they read either or both of the flyers or participated in, or heard discussions on site concerning the content of the flyers. There is no evidence as to when the flyers were distributed, but it is probable that they were distributed at least some time in advance of the proposed rally and march. We infer that both Mr Calleja and Mr Tabbakh had such knowledge. In so inferring, we have noted that neither appellant chose to give evidence. In those circumstances we infer that neither was able to give any evidence helpful to his case, concerning his state of knowledge. We infer that, subject only to the three categories of notation on the timesheets, all appellants comprising the group of 46 knew of the proposed rally and march, and that some Crown employees might attend, leading to them failing or refusing to attend for work, or to perform work. We infer that by absenting themselves from the site on 28 February 2013, those appellants engaged in such industrial action by Crown employees.

155    The same inferences are available in respect of each of the appellants in the group of 28, save that they had engaged in other industrial action connected with the exchange between Mr Waters and Mr Chaseling. It is not possible to distinguish between their conduct as it related to the earlier exchange and as it related to the proposed rally and march. It is sufficient to say that their failure or refusal to attend for, or perform work was brought about by either the exchange or the proposed rally and march, or both.

156    We should add that we do not understand the appellants to have suggested at trial or on appeal, that any of them was unaware of the proposed industrial action on 28 February 2013. Nor do we understand it to have been suggested that those on site, or waiting to enter the site on 28 February 2013, were unaware of the exchange between Mr Waters and Mr Chaseling.

A further submission

157    In submissions in reply, the appellants submitted that the need to demonstrate engagement in industrial action by employees raised a further matter which had not been addressed at trial. The submission was based upon the proposition that when some employees left the site on 28 February 2013, others who remained may have been willing to work but were unable to do so because no work was available. It was submitted that when workers left the site, Crown may have decided that no work would, or could be performed on that day. Thus it was submitted that it could not be established, as against those employees who had been at the meeting and/or on site on the morning of 28 February 2013, that they had failed or refused to perform work. The appellants submitted that this basis for appeal was within ground 3 (or perhaps grounds 2 and 3) of the further amended notice of appeal. We do not accept that submission. Grounds 2 and 3 should only be understood as dealing with issues raised at trial. Even if we were to permit the issue to be raised on appeal, the ground could not succeed. The appellants do not challenge the proposition that prior to 6.30 am, there was work to be performed immediately after the starting time of 6.30 am. There is no basis for inferring that anything occurring thereafter led to a change in that position. The submission must be rejected.

The timesheet notations

158    Of the 74 appellants, the timesheets relating to 16 of them were marked “sick”. Of those 16, 15 were in the group of 46, and one, Mr Martinez, was not. There was no further elaboration on the timesheets, and no evidence as to the persons responsible for the entries. It may reasonably be inferred that each appellant in question made the entry relevant to himself. The Crown records were received in evidence as business records pursuant to Div 3 of Pt 3.2 of the Evidence Act. Broadly speaking, where business records are received into evidence, the hearsay rule does not apply to them. For present purposes, we must consider whether the presence of the word “sick” on the timesheets has any present relevance and, if so, how it affects this case.

159    The appellants submit that such an entry meant that Fair Work had to establish, on the balance of probabilities, that the relevant appellant was not sick on 28 February 2013. In other words, they submit that the word “sick” on a timesheet relating to an appellant satisfied the evidential onus necessary to raise the issue of his sickness, and so impose a legal onus on Fair Work to prove that he was not sick. It is also said that the presence of the word “sick” on a timesheet is an “additional barrier” to characterizing the relevant appellant’s conduct as being industrial.

160    We do not accept the appellants’ view of s 19(1)(c) as applied to s 417. However we agree that a bona fide claim to be absent for reason of sickness would, in this case, take the absence from work, or failure to work out of the definition of the term “industrial action”. Clause 34 of the Crown enterprise agreement deals with “personal leave”. Clause 34.1(a) provides:

(a)    Cumulative Personal Leave

10 days paid leave per year (cumulative) for use by an Employee (other than a casual) as:

(i)    Sick Leave; or

(ii)    Carers Leave;

161    Clause 34.2 provides:

34.2    Sick Leave

(a)    An Employee (other than a casual) shall be entitled to use Cumulative Personal Leave as sick leave for absences on account of personal illness or injury (except where the Employee is receiving workers compensation).

(b)    An Employee shall as far as practicable inform the Employer of the Employee's inability to attend for duty, and, as far as practicable, state the nature of the injury or illness and the estimated duration of the Employee's absence.

(c)    If required by the Employer, evidence of entitlement will be supplied by the Employee to the Employer. The evidence required will be evidence that would satisfy a reasonable person that the leave is taken on account of personal illness or injury.

162    In certain circumstances, an employee may take cash in lieu of accumulated personal leave.

163    We consider that where clause 34.2 is bona fide engaged, an absent worker could not be said to be engaging in industrial action by failing or refusing to attend for, or to perform work. Such an absence is contemplated by the Crown enterprise agreement. However that exemption depends upon compliance with cl 34.2(b). No appellant has asserted such compliance. Merely entering the word “sick” on a timesheet would not be a basis for inferring that each appellant had complied with s 34.2(b). To adopt and adapt the words of Dawson and Deane JJ in Falconer, a mere assertion of illness is unlikely to be sufficient. When the person claiming to be ill has offered no particulars of such illness, and does not give evidence, it can be assumed that his evidence would not have assisted in his case. One may well ask how, in those circumstances, Fair Work could be expected to disprove illness, particularly as it was not pleaded. It follows that no appellant has demonstrated a basis for inferring that he was, for the purposes of s 19(1)(c) ill on 28 February 2013. Hence Fair Work bore no legal burden to disprove illness. It is also true that none of the appellants provided evidence of the kind contemplated by clause 34.2(c). However there is no evidence that Crown required such evidence.

164    The timesheets of two other appellants, Mr Tutavaha and Mr Waldron, indicate that they had been unable to enter the site on 28 February 2013. It is difficult to see how or why they should have been unable to access the site, given that many other employees did so. In any event, both were at work on 27 February 2013, and it may be inferred that they were aware of the rally, and that some Crown employees would fail or refuse to attend for work, or perform work on 28 February 2013.

165    The timesheets showed that some appellants were simply “off” on 28 February 2013. We cannot see how that assertion can have any effect upon the availability of the inference that the employees in question engaged in industrial action by failing or refusing to attend for work, or to work on that day.

166    The appellants must fail on grounds 2 and 3.

GROUND 4

167    We have dealt with ground 4 in our consideration of the proper construction of ss 19(1)(c) and 417(1). The appellants must fail on ground 4.

CONCLUSION

168    It follows that his Honour was correct in concluding that each appellant had either failed or refused to attend for work, or having so attended, failed or refused to perform work.

169    We order that: