FEDERAL COURT OF AUSTRALIA

Auimatagi v Australian Building and Construction Commissioner

[2018] FCAFC 191

Appeal from:

Australian Building And Construction Commissioner v Auimatagi and Anor [2017] FCCA 1722

Australian Building and Construction Commissioner v Pomare Auimatagi and Anor (No. 2) [2018] FCCA 524

File number:

NSD 460 of 2018

Judges:

ALLSOP CJ, COLLIER AND RANGIAH JJ

Date of judgment:

13 November 2018

Catchwords:

INDUSTRIAL LAW – Fair Work – Work Health and Safety – whether John Holland Pty Limited had a workplace right – whether John Holland Pty Limited exercised a workplace right – whether the appellants engaged in adverse action within the meaning of section 342 and item 7(a) of the Fair Work Act 2009 (Cth) – whether the appellants engaged in adverse action within the meaning of section 342 and item 7(c) of the Fair Work Act 2009 (Cth) – whether the appellants contravened section 340 of the Fair Work Act 2009 (Cth) –  the reverse onus provided for in section 361 of the Fair Work Act 2009 (Cth) – whether the first appellant engaged in action in contravention of section 343 of the Fair Work Act 2009 (Cth) – coercion – whether conduct was unlawful, illegitimate or unconscionable – penalties manifestly excessive – appeal allowed

Legislation:

Fair Work Act 2009 (Cth), ss 12, 14, 340, 343, 361, 362, 418, 550

Work Health and Safety Act 2011 (Cth), ss 3, 19

Workplace Relations Act 1996 (Cth), ss 4(1) and 420

Workplace Relations Amendment (Work Choices) Act 2005 (Cth)

Cases cited:

A & L Silvestri Pty Ltd v Construction, Forestry, Mining and Energy Union [2007] FCA 1047; 165 IR 94

Adams v Director of the Fair Work Building Industry Inspectorate [2017] FCAFC 228; 351 ALR 379

Australian Building and Construction Commissioner v Australian Manufacturing Workers Union (The Australian Paper Case) [2017] FCA 167

Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2017] FCAFC 53; 249 FCR 458

Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2017] FCA 157; 267 IR 130

Australian Building and Construction Commissioner v Hall [2018] FCAFC 83; 277 IR 75

Australian Building and Construction Commissioner v Powell [2017] FCAFC 89; 251 FCR 470

Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833; 117 FCR 424

Cadbury Schweppes Pty Ltd v Australian Liquor Hospitality & Miscellaneous Workers’ Union [2000] FCA 1793; 106 FCR 148

Commonwealth Bank of Australia v Financial Sector Union of Australia [2006] FCA 1048; 154 IR 467

Commissioner of Taxation v Jayasinghe [2016] FCAFC 79; 247 FCR 40

Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2015] FCAFC 25; 230 FCR 298

Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The Non-Indemnification Personal Payment Case) [2018] FCAFC 97

Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The Broadway on Ann Case) [2018] FCAFC 126

Coulton v Holcombe [1986] HCA 33; 162 CLR 1

Director of Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union (The Red & Blue Case) [2015] FCA 1125; 254 IR 200

Director of Public Prosecutions v United Telecasters Sydney Ltd [1990] HCA 5; 168 CLR 594

Esso Australia Pty Ltd v The Australian Workers Union [2016] FCAFC 72; 245 FCR 39

Fair Work Ombudsman v National Jet Systems Pty Ltd [2012] FCA 243; 218 IR 436

Finance Sector Union of Australia v Commonwealth Bank of Australia [2000] FCA 1468; 106 FCR 16

John Holland Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2009] FCA 235; 174 FCR 526

Laing v Construction, Forestry, Mining and Energy Union (No 2) [2006] FCA 750; 155 IR 244

Multicon Engineering Pty Ltd v Federal Airports Corporation [1997] NSWCA 214; 47 NSWLR 631

National Union of Workers v Qenos Pty Ltd [2001] FCA 178; 108 FCR 90

Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia [1998] HCA 30; 195 CLR 1

Seven Network (Operations) Ltd v Communications, Electrical, Electronic, Energy Information, Postal, Plumbing and Allied Services Union of Australia & Ors [2001] FCA 456; 109 FCR 378

State of Victoria v Construction, Forestry, Mining and Energy Union [2013] FCAFC 160; 218 FCR 172

TAL Life v Shuetrim [2016] NSWCA 68; 91 NSWLR 439

Williams v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2010] FCA 754

Williams v Construction, Forestry, Mining and Energy Union [2009] FCA 223; 179 IR 44

Woolmington v Director of Public Prosecutions [1935] UKHL 1; AC 462

Date of hearing:

24 August 2018

Registry:

New South Wales

Division:

General Division

National Practice Area:

Employment & Industrial Relations

Category:

Catchwords

Number of paragraphs:

178

Counsel for the Appellants:

S Crawshaw SC

Solicitor for the Appellants:

Taylor & Scott Lawyers

Counsel for the Respondent:

H Dixon SC with B Cross

Solicitor for the Respondent:

Bartier Perry

ORDERS

NSD 460 of 2018

BETWEEN:

POMARE AUIMATAGI

First Appellant

CONSTRUCTION, FORESTRY, MARITIME, MINING AND ENERGY UNION

Second Appellant

AND:

AUSTRALIAN BUILDING AND CONSTRUCTION COMMISSIONER

Respondent

JUDGES:

ALLSOP CJ, COLLIER AND RANGIAH JJ

DATE OF ORDER:

13 November 2018

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    The declarations and orders of the Federal Circuit Court of Australia made on 8 March 2018 be set aside, and in lieu thereof the application before the Federal Circuit Court of Australia be dismissed.

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

REASONS FOR JUDGMENT

THE COURT:

Introduction

1    This is an appeal by Mr Pomare Auimatagi and the Construction, Forestry, Maritime, Mining and Energy Union (the Union) from declarations and penalty orders made, and imposed on them, by the Federal Circuit Court on 8 March 2018. The contraventions found were of s 340 (adverse action) and s 343 (coercion) of the Fair Work Act 2009 (Cth) (FW Act).

2    The events involved a dispute in the middle of summer (16 to 20 January) in 2014 on a building site at Callaghan Newcastle controlled by John Holland Pty Limited (John Holland). The workers involved were employed by subcontractors to John Holland and covered a number of trades, including scaffolding. The weather had been hot. From 7 November 2013 John Holland had required a particular policy concerned with health and safety called the Two Longs Safety Policy (the Policy) to be complied with on the site by all workers (its own and those employed by subcontractors). The Policy required workers to wear long sleeved shirts and long trousers while working on site. The purpose of the Policy was the protection of workers from cuts and abrasions and also, importantly, from unprotected exposure to the sun.

3    It should be said at the outset that John Holland, as the entity in control of the site and conducting its business on the site, had important duties owed to all workers (not just its own) on the site over which it had control. Section 19 of the Work Health and Safety Act 2011 (Cth) (WHS Act) provided relevantly as follows in this regard:

(1)    A person conducting a business or undertaking must ensure, so far as is reasonably practicable, the health and safety of:

(a)    workers engaged, or caused to be engaged by the person; and

(b)    workers whose activities in carrying out work are influenced or directed by the person;

while the workers are at work in the business or undertaking.

(2)    A person conducting a business or undertaking must ensure, so far as is reasonably practicable, that the health and safety of other persons is not put at risk from work carried out as part of the conduct of the business or undertaking.

(3)    Without limiting subsections (1) and (2), a person conducting a business or undertaking must ensure, so far as is reasonably practicable:

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

(b)    

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

(d)    

(e)    

(f)    the provision of any information, training, instruction or supervision that is necessary to protect all persons from risks to their health and safety arising from work carried out as part of the conduct of the business or undertaking; and

(g)    that the health of workers and the conditions at the workplace are monitored for the purpose of preventing illness or injury of workers arising from the conduct of the business or undertaking.

4    Workers had their own duties in this regard. A self-employed person was obliged, by s 19(5) of the WHS Act, to ensure, as far as was reasonably practicable, his or her own health and safety while at work. Also, under s 28 of the WHS Act, a worker (defined widely by s 7 to include an employee, contractor, subcontractor, employee of a contractor or subcontractor and others) must:

(a)    take reasonable care for his or her own health and safety; and

(b)    

(c)    comply, so far as the worker is reasonably able, with any reasonable instruction that is given by the person conducting the business or undertaking to allow the person to comply with this Act; and

(d)    co‑operate with any reasonable policy or procedure of the person conducting the business or undertaking relating to health or safety at the workplace that has been notified to workers.

5    By s 29 of the WHS Act, a similar body of duties were placed on any person at a workplace.

6    By s 19(3)(f) of the WHS Act, John Holland was obliged (so far as was reasonably practicable) to provide “information, training, instruction or supervision to protect workers from risk to health and safety and by s 28(c) workers on site were obliged to comply with any reasonable instruction by John Holland to allow it to comply with the WHS Act. The word “instruction” in ss 19(3)(f) and 28(c) is to be understood as including directions to do something.

7    The importance of workplace health and safety measures cannot be emphasised too much. The objects of the WHS Act in s 3 were clear in that regard. Sections 3(1)(a) and 3(2) were as follows:

(1)    The main object of this Act is to provide for a balanced and nationally consistent framework to secure the health and safety of workers and workplaces by:

(a)    protecting workers and other persons against harm to their health, safety and welfare through the elimination or minimisation of risks arising from work; and

(2)    In furthering subsection (1)(a), regard must be had to the principle that workers and other persons should be given the highest level of protection against harm to their health, safety and welfare from hazards and risks arising from work as is reasonably practicable.

8    Nothing said in these reasons should be taken as any derogation from the recognition of this importance.

9    The Union itself recognised the health and safety aspects of heat and exposure to the sun in its own policies, to the detail of which we will come.

10    The men on the site objected to the Policy and its application. Mr Auimatagi’s involvement in the events led to the Australian Building and Construction Commissioner bringing penalty proceedings against Mr Auimatagi and the Union for contraventions of s 340 (adverse action) and s 343 (coercion) of the FW Act. The responsibility of the Union was said to be entirely vicarious pursuant to s 363 arising from the actions of Mr Auimatagi.

11    The primary judge made two declarations of contraventions by Mr Auimatagi in the following terms:

BY CONSENT, THE COURT DECLARES THAT:

1.    On 16 January 2014 at a building site at Callaghan Newcastle controlled by John Holland Pty Ltd the first respondent (being an officer of the second respondent) contravened s.340 of the Fair Work Act 2009 (Cth) by organising, encouraging and inciting action, including industrial action, against John Holland Pty Ltd because John Holland Pty Ltd had exercised and proposed to exercise its workplace right under the Work Health and Safety Act 2011 (Cth) to enforce its Two Longs Safety Policy, that action being that the workers would wear short pants and short sleeve shirts to work on and from 17 January 2014 and walk off the job if John Holland Pty Ltd sought to enforce its Two Longs Safety Policy.

2.    On 16 January 2014 at a building site at Callaghan, Newcastle, controlled by John Holland Pty Ltd, the first respondent (being an officer of the second respondent) also contravened s.343 of the Fair Work Act 2009 (Cth) by organising and threatening the action set out at Declaration 1 (above) with the intent to coerce John Holland Pty Ltd not to exercise its workplace right to enforce its Two Longs Safety Policy on and from 17 January 2014.

12    It is to be noted that these orders were styled “by consent”. It is plain that this should be read as the form of the orders that the parties agreed conformed with the Court’s reasons. The declarations were not made by consent.

13    A short declaration was made as to equivalent contraventions by the Union by virtue of s 363.

14    Two penalties were imposed: one on Mr Auimatagi of $7,500 (by reference to a maximum of $10,200) and the second on the Union of $51,000 (by reference to a maximum of $51,000).

15    The appeal is brought on both liability and sentencing. We would allow the appeal on liability, making it unnecessary to deal with penalty.

The facts

16    The facts, taken largely from the reasons of the primary judge, were as follows.

17    For a number of years, John Holland had a workplace health and safety policy entitled “The Prevention and Management of Heat Stress”, referred to as the “Two Longs Safety Policy”. It required workers on John Holland sites to wear long sleeved shirts and long trousers.

18    On or around 19 December 2012, John Holland was awarded the contract to manage the construction of a student accommodation building at the University of Newcastle in Callaghan, Newcastle. The project was referred to as the “University of Newcastle Student Accommodation Project”. John Holland was the principal contractor for the project. It engaged a number of subcontractors to perform works at the site. The majority of workers on the site were employed by subcontractors, although John Holland had some employees on the site. The primary judge did not make findings as to the precise identity of the workers involved in the events, however, the evidence demonstrates they were workers present on the site who were employees of the following subcontractors: Conaghan Civil Pty Ltd, Oakdale Group Pty Ltd, Coastline Plumbing (Aust) Pty Ltd, John Clayden Constructions Pty Ltd and Crestscaff subcontracted to Waco Kwikform Pty Ltd (and its own subcontractor, Crestscaff Pty Ltd).

19    Workers at the site were required to comply with the Policy. It formed part of the site induction, and copies of the Policy were issued to all subcontractors. It was a requirement from 7 November 2013 at the site that the Policy be complied with.

20    The first appellant, Mr Auimatagi, was, from mid 2005 until late 2016, an organiser for the Union. In 2013 and 2014, Mr Auimatagi was the organiser responsible for the Project.

21    On 9 January 2014, Mr Auimatagi entered the site and had a discussion with Mr Glen O’Connor (who was engaged by John Holland as the project manager for the site) about the need to manage heat stress on the site. Mr Auimatagi told Mr O’Connor that he wanted workers on the site to have a choice about wearing short sleeves and shorts while working on the site, and claimed that workers had not been given an opportunity to negotiate about the Policy. He provided Mr O'Connor with a copy of a Union brochure entitled “Know What to do When Things Heat Up at Work”. The Union brochure itself stated that workers should wear light coloured, long sleeved shirts" and "long trousers or shorts that go to the knee".

22    A comparison of the Policy and the Union brochure was subsequently undertaken by Mr Brown, John Holland's safety manager. This was completed on 10 January 2014. He noted that both documents highlighted the need to wear long sleeve shirts and long trousers. Mr O’Connor sent an email to Mr Auimatagi on 10 January 2014 noting the consistency between the two documents.

23    On Tuesday 14 January 2014, Mr Auimatagi attended a Health and Safety Committee Meeting at the site to discuss heat management. The Health and Safety Committee was comprised of representatives of John Holland, employers of the various subcontractors and representatives of the Union. Mr Mick Preston, the Union safety officer was also present, as were Mr O’Connor and Mr Brown. At the meeting, Mr Auimatagi again provided the Union’s brochure he had previously provided to Mr O’Connor and stated that he wished for John Holland to adopt the information in the brochure. He stated that his “plan was to change all construction projects through the region”. Mr O’Connor took this to mean that Mr Auimatagi intended to change the heat management policy on the site to enable short sleeves and shorts to be worn by workers. Mr Auimatagi stated that such changes had been implemented at Barangaroo and Tamworth with Lendlease.

24    On Thursday 16 January 2014 at 7:00am, Mr Auimatagi attended the site and held a discussion with workers at the crib sheds in the presence of Mr Tom Rigby, another Union official. Approximately 85 to 90 workers were present (the majority of workers on the site). At approximately 7:45am, Mr Auimatagi said words to the effect:

Others will tell you that you’re using long sleeves for UV protection but you should have the choice.

What are we going to do about it? Do we wear shorts or short sleeves? Who is wanting to have the choice of wanting shorts and short sleeves?

Okay guys it’s up to you. We’ve done it at Barangaroo and Tamworth. I’m suggesting that you come to work in shorts and short sleeves and “make a stand”.

Who’s up to do that? We need a vote. Raise your hands. Right, when are we going to do it? Is it Friday morning or Monday morning?

Righto lads that’s 81 out of 82.

Right its Friday.

25    Following the conclusion of that meeting at approximately 8:00am, there was a meeting between Mr Auimatagi, Mr O’Connor and John Holland’s Senior Employee Relations Advisor, Mr Trent Smith. A conversation occurred between Mr Auimatagi and Mr O’Connor to the following effect:

Mr Auimatagi: the plan is for the guys to wear shorts and short sleeves tomorrow.

Mr O’Connor: that is not our protocol.

Mr Auimatagi: it’s a safety issue.

Mr O’Connor: they are not allowed to wear shorts and short sleeves.

Mr Auimatagi: we are not saying they are going to wear footy shorts.

Mr O’Connor: they are not going to be allowed to work on site.

Mr Auimatagi: if any worker is removed from site, then the whole site will stop work and return to crib rooms.

26    There was a meeting of the Health and Safety Committee at 10:00am on 16 January 2014 to further explain the Policy and the reason for its implementation. Mr Auimatagi was in attendance, as were Mr Brown, Mr Smith and Mr Jeffrey Wall (a construction manager employed by John Holland). At that meeting, John Holland indicated that it was happy to review its heat stress policy but would not change its position on wearing “two longs”. It was emphasised that the subcontracts required workers employed by subcontractors to wear appropriate personal protective equipment, including two longs.

27    At that meeting, Mr Auimatagi said words to the effect of:

81 out of 82 workers have endorsed the motion to wear short sleeves and shorts.

The workers have not been consulted over John Holland’s heat management policy.

The union have made it clear to the workers that they should have the option of wearing short sleeves and shorts if they want to, but the union doesn't endorse footy shorts.

If any worker is prevented from working in shorts or short sleeves from tomorrow, then the whole site will stop work.

Touch one, touch all.

28    The Health and Safety Committee was followed at 12:00pm on 16 January 2014 by a “toolbox” meeting held to address all workers on the site, at the instigation of Mr O’Connor, Mr Wall and Mr Smith. The records indicated that 90 employees of subcontractors and nine employees of John Holland were present, along with Mr Auimatagi. These were all employees of subcontractors present on the site on 16 January 2014. At this meeting, Mr O’Connor said the following to the workers:

As you all know the site PPE rules for the Newcastle University Student Accommodation project include the mandatory use of long sleeves and long pants clothing. The reason for this is to prevent laceration injuries to arms and legs with steel or other materials while working, and to prevent the likelihood of melanoma and skin cancer.

29    Mr Smith advised workers at the meeting in words to the effect of “[i]f you choose not to go to work, it will be considered unlawful industrial action”.

30    During the “toolbox meeting, Mr Auimatagi interjected and called out “Touch one. Touch all.

31    On the following day, Friday 17 January 2014, Mr O'Connor conducted a "pre-start" meeting at 6:30am where he reminded all subcontractors present that all workers on the site were required to wear long sleeved shirts and long trousers while working on the site. The workers were told that if they did not wear such clothing they would not be permitted to work on the site. Also participating in the “pre-start” meeting were supervisors from a number of subcontractors (John Clayden Constructions, Conaghan Civil and Coastline Plumbing).

32    That same day, a number of workers appeared on site wearing short sleeved shirts and shorts. Somewhat after 7:00am, Mr O’Connor spoke to a scaffolder who was wearing short sleeves. Mr O’Connor said words to the effect “if you have some longs in the car I suggest you put them on and come back to work”. The scaffolder packed up his equipment and walked toward the crib rooms. Mr O’Connor did not ask him not to return to work. During this conversation, Mr O’Connor observed five or six other scaffolders nearby also wearing short sleeves.

33    Mr O’Connor then observed approximately 90 workers walk off site toward the crib room. Having seen workers using their mobile phones, he was of the view that those other scaffolders heard his conversation with the first scaffolder and then contacted other workers using their mobile phones to inform them that he had asked a worker to leave the site. The primary judge made findings to that effect. It is unclear how many of the workers who stopped work were themselves wearing short sleeves or shorts.

34    At approximately 8:30am, Mr Smith and Mr O’Connor spoke with employees of John Holland and advised them that refusing to work wearing two longs may constitute industrial action and that they should return to work.

35    Two Comcare workers attended the site at 10:00am. They conducted a meeting with Mr O’Connor, other John Holland employees, Mr Auimatagi and Mr Rigby from the Union, along with members of the Health and Safety Committee.

36    The Comcare Inspector’s Report dated 17 January 2014 relevantly stated as follows:

SUMMARY OF COMMITMENTS/OUTCOMES

As a result of this meeting, Inspector Boyce advised that by [sic] wearing short sleeves and shorts not only introduced additional risks to health and safety, but was also against the advice outlined in the regulatory guidance material. …

SUMMARY OF INSPECTOR’S ACTIONS AND OBSERVATIONS

2.    Findings

...

2.4.    In addition to the protection from ultraviolet light … the long sleeves and long pant policy also aids in reducing the risk of cuts, abrasions, insect or animal bites, and other risks to health and safety.

3.    Advice provided by Comcare

3.1    Based on the information outlined in points 2.3 and 2.4, specifically in relation to the guidance material obtained from the Code of Practice and WHS Regulatory bodies, I believe it is reasonable for John Holland to require workers on site to wear long sleeved shirts and long pants to reduce the risk of workers exposure to ultraviolet light.

37    The conclusions of Comcare were communicated to John Holland employees who immediately returned to work. Mr O'Connor, Mr Smith and Mr Wall then walked to the crib rooms and informed the subcontractors of the outcome of the meeting with Comcare. Mr Smith told the workers they should return to work, a direction that was ignored by the subcontractors.

38    By around 1:00pm on 17 January 2014, only a few individual workers were working on the site. Most of the workers were sitting in the crib rooms or had left the site. Mr O’Connor identified that 48-49 employees of subcontractors continued to stay in the crib rooms from around lunch time. By 2:30pm, even the workers that were in the crib room had left the site. Thus, by mid-afternoon all workers had left the site except those employed directly by John Holland. Those who stopped work were drawn from Conaghan Civil, Coastline Plumbing, John Clayden Constructions, Oakdale Formwork and Waco Kwikform (Crestscaff), according to Mr O’Connor’s evidence. As noted above, no specific findings were made by the primary judge as to the identity of those involved in the stoppage of work.

39    On the morning of Monday 20 January 2014, Mr Auimatagi attended the site with other Union officials, where he spoke with the workers at the crib rooms and encouraged them to continue their campaign to wear shorts. The Union officials present with Mr Auimatagi included, according to the evidence of Mr O’Connor, the Assistant State Secretary, Mr Rebel Hanlon, together with Mr Rigby and Mr Preston.

40    Earlier that morning, at approximately 6:30am, Mr O'Connor had conducted a “pre-start” meeting with the subcontractors and their employees where he reminded them they were required to wear long sleeves and trousers if they wished to work on the site. Together with Mr Smith he then went to the crib rooms at around 7:00am and observed that most of the workers were wearing either shorts or short sleeves. These employees, who were not working, were from the subcontractors Oakdale, John Clayden Constructions and Waco Kwikform (Crestscaff) and totalled 20 workers according to the evidence of Mr O’Connor. Mr O’Connor and Mr Smith returned at around 8:00am and these workers were still not working. Mr Smith informed the workers that John Holland considered this to be unlawful industrial action.

41    At around 7:00am on Tuesday, 21 January, Mr O’Connor, together with the safety manager, Mr James Brown, walked into the crib room and saw eight workers from John Clayden Constructions wearing shorts or short sleeves and not working. At around 7:15am, Mr Auimatagi, accompanied by other Union officials including Mr Rigby and Mr Hanlon entered the site and spoke to the workers.

42    Workers from John Clayden Constructions and Waco Kwikform (Crestscaff) did not work that morning, although by 2:30pm the Waco Kwikform employees had returned to work after being told to do so by Waco Kwikform.

43    Though there are no findings about it, there was evidence that various of the subcontractor supervisors were among those involved in wearing the short sleeves or shorts and it would appear that Mr O’Connor left it up to the subcontractors to instruct their workers.

44    On Tuesday 21 January 2014, John Holland made an application under s 418 of the FW Act seeking orders that the industrial action be stopped. The hearing of the application before the Fair Work Commission was scheduled for 4:00pm on 21 January 2014.

45    The application was resolved in conference on 21 January 2014 and the application was not pressed. The outcome of the conference resulted in an agreement between John Holland and the Union that a review of the Policy would be undertaken, by the Health and Safety Committee, of the standard and appropriateness of the clothing worn by subcontractors in relation to the material, ventilation, weight and fit. In exchange, the Union agreed to recommend to the workers at 7:00am on 22 January 2014 that the workers should present for work wearing long sleeves and trousers.

46    By close of business on 21 January 2014, only employees of John Clayden Constructions and Oakdale were refusing to work on site.

47    The events following 21 January 2014 were not addressed by the primary judge in her Honour’s reasons.

48    On Wednesday 22 January 2014 at around 7:30am, Mr Auimatagi and Mr Hanlon entered the site. Mr Hanlon addressed workers employed by John Clayden Constructions and Oakdale and told them of the agreement reached in the Fair Work Commission. By around 8:00am, all workers had returned to work and Mr Auimatagi and Mr Hanlon had left the site.

49    Meetings of the Health and Safety Committee to conduct the review of the clothing to be worn occurred on 23 January 2014 and then on 5 February 2014. At the 5 February 2014 meeting, the Health and Safety Committee agreed on a particular make of long trousers to be worn by workers on the site, and agreed that each individual subcontractor would select a suitable long sleeved shirt for wear by their workers.

50    At the time Mr O’Connor made a statement to the Fair Work Investigator on 24 March 2014, there had been no further industrial activity on the site and the Policy continued to be in force.

51    The conduct of Mr Auimatagi during the period leading up to Friday 17 January 2014, and during the stoppages of work on 17, 20 and 21 January is outlined above. It is also appropriate to consider Mr Auimatagi’s attitude, and whether he had any awareness that what he was doing was unlawful.

52    The conduct of Mr Auimatagi did not, on the evidence and the findings made by the primary judge based upon it, involve any use of foul language, threats of violence or displays of arrogance or manifest aggression. Rather, he appeared to consider that there had been inadequate consultation over the Policy, to want the Union’s policy (or some variant of it) to be applicable, and to obtain the views of workers on the site.

53    The primary judge noted that Mr Auimatagi had acknowledged that he was aware that there was a dispute settlement mechanism in all the enterprise agreements applicable to the workers on the site (liability judgment at [109]; and penalty judgment at [22]). The exchange during cross-examination in relation to this was as follows (TS 552-553, 7 June 2017):

MR CROSS: … Dispute settlements procedures exist in all enterprise agreements, don't they?---Certainly in the CFMEUs EBAs.

[Mr Auimatagi was shown several Enterprise Agreement pertaining to employees of different subcontractors, which were evidence.]

Yes. Now you’ve agreed with me in response to a recent question that enterprise agreements, particularly as you said, CFMEU agreements contain settlements of disputes clauses, don't they?---Yes.

And, in fact, it’s a statutory obligation that an agreement to be registered by the Fair Work Commission or its predecessor would have to include a settlements of disputes clause, isn't it?---I believe so.

Yes?---Yes, that’s correct.

[Mr Auimatagi was taken to a dispute resolution clause in one of the Enterprise Agreements referred to]

A procedure such as [the dispute resolution clause] allowed an ability for you and the CFMEU to agitate any concerns that you had in relation to the two longs policy, didn't it?---No.

It related to the exercise of workplace right. If you had any concern in relation to the operation of the two longs policy, you could have filed an industrial dispute notification with the Commission, couldn't you?---There is an opportunity for that, I believe, under the EBA that you’re---

Yes?--- --- asking me about, yes.

MR CROSS: Clauses such as these allow for a stepped process by which disputes can be handled both locally and without resolution before the Commission, correct?---Under an EBA.

Yes?---Yes.

And, in fact, as is included in this particular clause, there's an ability for arbitration by the Fair Work Commission in relation to any disputes that are before it, correct?---With regards to a breach or possible breach in the EBA, yes.

Well, with regards to any dispute notified pursuant to this clause, correct?---No. I disagree.

54    There was an issue below, and raised again on the appeal, as to whether the enterprise agreements referred to were applicable as they dealt with the subcontractors and their employees, whereas the action was alleged to have been taken against John Holland.

55    Mr Auimatagi accepted at the end of this part of the cross-examination that he knew that industrial action was unlawful, as was noted by the primary judge (liability judgment at [110]; and penalty judgment at [23]). The exchange was as follows (TS 554-555, 7 June 2017):

MR CROSS: … Okay. The issue of clothing wasn't so urgent that you couldn't have followed the dispute settlement procedure in any of the agreements applicable on site, was it?---Yes, it was.

You were just simply seeking to force change without negotiating, weren't you?---No.

You clearly knew that some companies on site had enterprise agreements that were operative at the time---Yes.

And so you knew that industrial action was prohibited---Yes.

(emphasis added)

56    The difficulty with this cross-examination is that for the reasons discussed below there was no industrial action. The following exchange in regard to the taking of unprotected industrial action had occurred earlier in the cross-examination of Mr Auimatagi (TS 516-517, 7 June 2017):

MR CROSS: … And you also receive training in relation to the operation of the Fair Work Act. Is that the case?---Certain areas which affect our day to day, yes.

And one of those areas is the proper ability to take - that industrial action may be taken on a site, correct?---No.

So you say the CFMEU provides no training in relation to how one might take, for example, protected industrial action?---No.

Then are we to understand the CFMEU does not provide training in relation to how to take protected industrial action?---They provide resources.

What are those resources?---Consult with a legal officer.

Right. You know that you can't take unprotected industrial action, don’t you?---Yes.

Okay. And you know that there are a number of hurdles that must be complied with in order to take unprotected industrial action?---Yes.

Protected action ballots?---Yes.

Notification of whatever action has been approved?---Yes.

And no such attempts were made on the University of Newcastle Site in January 2014, were they?---No.

(emphasis added)

57    The same false premise underlay this cross-examination. The primary judge concluded that she had little confidence in the accuracy of Mr Auimatagi’s recollections and no confidence in his recollections where they differed from those of the Commissioner’s witnesses: liability judgment at [105]-[106]. It is thus necessary to proceed with some caution when considering his evidence.

58    Her Honour noted the matters emerging from the cross-examination set out above, accepted that Mr Auimatagi was aware of the existence of dispute resolution procedures under the enterprise agreements and that he was aware that industrial action was unlawful.

59    At no stage, however, was it squarely put to Mr Auimatagi in cross-examination that he knew that what he did was adverse action against John Holland for its exercise of a workplace right and that this was unlawful.

The appeal

60    Grounds 1 to 4 concerned the contraventions found and relief in respect of adverse action under ss 340 to 342 of the FW Act. Grounds 5 and 6 concerned coercion under s 343 and ground 6A concerned a complaint about s 361 of the FW Act.

Ground 1 – whether there was a workplace right

61    The appellants submitted that the primary judge erred in finding that John Holland was exercising or sought to exercise a workplace right under s 341(1) to enforce the Two Longs Policy pursuant to s 19 of the WHS Act. Section 341 provided that a person has a workplace right if, amongst other things, the person “has a role or responsibility under a workplace law”. A “workplace law” was defined in s 12 of the FW Act as including “any other law of the Commonwealth … that regulates the relationships between employers and employees (including by dealing with occupational health and safety matters).

62    Therefore, it was said that there could be no relevant adverse action.

63    A number of arguments were put forward in support of the ground. First, whilst s 19 does regulate in some respects the relationship between employers and employees, it also imposes duties on a party such as John Holland to do things in relation to persons who are not its employees and in that respect is not a workplace law.

64    Secondly, and alternatively, there was no “role or responsibility” under the WHS Act. Acting under a duty is not a “role or responsibility” because that phrase was intended to convey a representative function.

65    Thirdly, if there were a workplace right, what was exercised was the duty of care under s 19, not any workplace right to enforce the Policy.

66    Fourthly, and further in the alternative, if there were a workplace right, it had to be shown that John Holland was intending to exercise it as a responsibility under the WHS Act.

67    In answer to the first argument it was pointed out that the matter had been conceded below. In both submissions at the commencement of the hearing and in closing addresses the respondent had clearly accepted that the WHS Act was a workplace law. There was also a concession at the commencement and at the end of the hearing that if there was a workplace right it was, on the evidence, exercised.

68    These concessions covered the first, third and fourth of the above submissions. The third and fourth submissions, had they been made at the trial, could have been the subject of evidence. For that reason they cannot be permitted to be run on appeal: Coulton v Holcombe [1986] HCA 33; 162 CLR 1 at 7-8. The first submission can, on one view, be seen as a question of law only. Yet, on another view, a factual matrix is involved, concerned with the operation of the law and the Policy as they affected, on the facts at hand, John Holland’s own employees. Senior counsel for the respondent submitted that there was no attention to this factual issue before the primary judge, as there would had to have been if the point had been taken. In these circumstances, the point should not be allowed to be taken. Further, even if the point does not raise such a question of evidence and the course of the trial, the point should not be allowed to be run. As was discussed in Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833; 117 FCR 424 at 439-440 [38] and the cases there cited, there is an importance to parties being bound to the cases they ran below. Reference may also be made to Multicon Engineering Pty Ltd v Federal Airports Corporation [1997] NSWCA 214; 47 NSWLR 631 at 645, where Mason P (with the agreement of Gleeson CJ and Priestly JA) said that parties are normally bound by the forensic choices they make. For a recent illustration see TAL Life v Shuetrim [2016] NSWCA 68; 91 NSWLR 439 at [166].

69    The Union did, however, make the second submission below. A “workplace right” is defined by s 341(1) relevantly here as a “role or responsibility under a workplace law”. Section 341(1) is in the following terms:

(1)    A person has a workplace right if the person:

(a)    is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body; or

(b)    is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument; or

(c)    is able to make a complaint or inquiry:

(i)    to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or

(ii)    if the person is an employee—in relation to his or her employment.

70    The argument put below and on appeal was that the meaning of the phrase “role or responsibility” took its colour and some limitation from the purpose of the section described by the Explanatory Memorandum at [1360] to [1364], as follows:

Paragraph 341(1)(a) provides that a person has a workplace right if the person is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body. Workplace law, workplace instrument and industrial body are defined in clause 12 in a way that is intended to ensure that this Division protects entitlements, roles and responsibilities under Commonwealth, State and Territory laws, and instruments made under those laws, that regulate employment and similar relationships and industrial associations.

Clause 341 is intended to cover a broad range of benefits, roles and responsibilities including:

    an employee’s right under clause 186 to have an enterprise agreement apply to the employee only if it satisfies the better off overall test;

    an employee’s right to be absent from work during parental leave;

    an employee’s right to be absent from work because of voluntary emergency management activity; and

    an employee’s entitlement to the benefit of an enterprise agreement or an order of FWA.

The use of the phrase ‘entitled to the benefit of’ in paragraph 341(1)(a) is intended to capture both the fact that a workplace law or instrument applies to a person, as well as the individual entitlements under the workplace law or instrument.

A benefit under a workplace law or workplace instrument is also intended to include benefits that are contingent or accruing (e.g., long service leave).

The inclusion of ‘role or responsibility’ in paragraph 341(1)(a) is intended to provide protection for persons who perform a representative function in the workplace that is recognised under a workplace law, workplace instrument or order of an industrial body.

71    There were two themes to the submission. First, John Holland did not have a role or a responsibility in the performance of any representative function; rather (and this was the second theme) it was fulfilling a duty placed on it by the statute, which was not properly characterised in its execution as a workplace right, rather a workplace duty. Indeed, s 30 of the WHS Act so describes the obligations of the person in John Holland’s position and the persons in the subcontractors’ workers’ position: “health and safety duty”. Division 5 of Part 2 (in which s 30 appears) makes a failure to comply with a health and safety duty an offence: ss 32 and 33. The second theme revealed, it was submitted, why John Holland was not performing a role or responsibility of a kind that required the protection of the FW Act’s adverse action provisions: because the regulatory regime of the WHS Act, including the work of the regulator and the duties and offences created by the WHS Act should be taken to be the operative law.

72    The argument is not without its force. The characterisation of the giving of an instruction under s 19 as a “right” in some Hohfeldian sense, founded on the clear legal duty in s 19 to issue it and the obligation of the workers to obey it, is problematic. But a right is here defined as being a “role or responsibility”. John Holland has a responsibility, indeed a duty, to issue the instruction if it reasonably comes to the view that it is necessary. To the extent that some representational character is required one can see it in the fact that the responsibility is for the safety of all on the site, whether they like it or not. It may be seen as almost paternal in its character. The word “responsibility” includes, in its present context, the connotation of the protection, or interests, of others. That is because it is a workplace under John Holland’s control. The Explanatory Memorandum gives the illustration of the workplace health and safety representative. Such a person’s role and responsibility is protected by s 340 through s 341, notwithstanding his or her protection concurrently under ss 105-108 of the WHS Act. Whilst the person in John Holland’s position is not representing others, it is obliged to protect the personal safety of others and so is clearly responsible for others. Its responsibility is not just a legal duty. On any meaning of the word “responsibility”, John Holland was performing one.

73    If some narrower concept of representativeness is to be taken from the Explanatory Memorandum, does that limit the words “role and responsibility” in s 341(1)(a) to acting as a figure representative of others? In our view, no. Of course one begins and ends with the words of the statute, but they are the words in their proper context. The relationship between s 15AB of the Interpretation Act 1901 (Cth) and the common law of statutory interpretation need not be explored here. Nor is there any need to explore or discuss the issues referred to in Commissioner of Taxation v Jayasinghe [2016] FCAFC 79; 247 FCR 40 at 43-44 [3]-[11] (per Allsop CJ).

74    It is sufficient to say that the discernment of a purpose from secondary material does not necessarily dictate the meaning of the statute. Meaning is not the transposed purpose. That there is a purpose to be achieved by a provision does not mean that the words chosen to implement the purpose should be interpreted in a tailored way to be limited to going no further than implementing the purpose with exactitude, unless the language used manifests such bespoke precision. The identification of a purpose does not mean that one reads down the meaning of words chosen to fulfil the purpose to conform only with the boundaries or parameters of the stated object: see Australian Building and Construction Commissioner v Powell [2017] FCAFC 89; 251 FCR 470 at [46]-[50].

75    For these reasons, ground 1 should be rejected.

Ground 2

76    Grounds 2 and 4 deal with whether there was adverse action. Ground 2 was directed to the circumstances in which a person takes adverse action under s 342(1) and item 7(a), being where an industrial association or an officer of the association “organises or takes industrial action against the person”. The ground of appeal was that the primary judge erred in concluding that Mr Auimatagi organised industrial action in circumstances where there could be no finding that industrial action as defined in s 19(1) of the FW Act was taken because:

(a)    the action subject of the orders was taken only by employees of subcontractors rather than employees of John Holland and was authorised or agreed to by the subcontractors under s 19(2)(a) of the Act; and/or

(b)    the action subject of the orders was not taken by employees against their employer.

77    Sections 19(1) and (2) of the FW Act are in the following terms:

(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.

(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.

78    The primary judge dealt with adverse action generally at [161] to [169] of her reasons and item 7(a) at [170] to [180] of her reasons.

79    Before the primary judge, it was squarely put that there had been no industrial action taken because all the workers who took action were employees of the subcontractors and not of John Holland: see para 74 of the respondents’ closing written submissions at the trial and because the action of the workers were authorised or agreed to by their employers: see the discussion of the evidence at paras 75 to 82. On appeal this point was made again.

80    It was also submitted that the Amended Statement of Claim (ASOC) had removed from it an allegation that John Holland was an employer of employees, and substituted that it was a person who had entered into a contract for services under which it arranged building work (para 5(c) of the ASOC). Paragraphs 11 to 15 alleged what “a large number of workers” and “a number of workers” on the site did in wearing shorts and short sleeved shirts, stopping and not returning to work on 17 January and not working on 20 and 21 January. Various paragraphs of the statement of Mr O’Connor were particularised: paras 82, 110, 114, 116, 121, 141, 143, 145, 148 and 158.

81    The argument on appeal had two strands to it. The second strand repeated the point made below that there was no industrial action because no employee of John Holland took action, only employees of the subcontractors, and all the subcontractors authorised or agreed to the action.

82    The first strand was that the case had not been run that John Holland was an employer; that industrial action was to be understood as action by employees against their own employer; and that here the action was by employees of others.

83    The primary judge approached the matter without making any findings about who employed the workers who took action. At [174] to [180] the primary judge concluded that “the workers engaged in industrial action”.

84    The approach reflected in [177] did not seek to distinguish the two groups of employees (those of John Holland and those of subcontractors). Nor had the pleadings. Indeed, as submitted by the appellant, no case had been run that John Holland employees had refused to obey the Policy.

85    The reasons did not deal with any engagement of s 19(2)(a) as had been argued, though [180] may be seen to be a finding that the subcontractors only agreed to the action after it had been taken.

86    The phrase “industrial action” is defined in s 19 of the FW Act. Some of the history of that definition and the reasons for the insertion of the words “by an employee” into the predecessor provision (ss 4(1) and 420 of the Workplace Relations Act 1996 (Cth) (the WR Act) was discussed by the Full Court in Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2015] FCAFC 25; 230 FCR 298 at 323-326 [131]-[150]. The text of s 19 (and its predecessor s 420) and the changed Constitutional basis for the WR Act rendered by the Workplace Relations Amendment (Work Choices) Act 2005 (Cth) (the Work Choices Act) reflect the definition of industrial action as referable to certain action taken by an employee and by an employer, implicitly against his or her employer and employee, respectively.

87    In Australian Building and Construction Commissioner v Australian Manufacturing Workers Union (The Australian Paper Case) [2017] FCA 167 at [199], Jessup J expressed the view that industrial action referred to in s 19(1)(c) (and there appears no reason to distinguish this from s 19(1)(a) or (b)) can only be taken for the purposes of s 342(1) and item 7(a) “against” the employer.

88    The respondent submitted that Jessup J was wrong and that industrial action is, as defined, not limited to action being taken against the employer. We would reject that submission. The actions in s 19(1) are all only apt to be between employer and employee. Section 19(1)(d) is express in that respect. The performance of, and attendance for, work in s 19(1)(a)-(c) are matters as between employee and employer. The employee performs work for the employer; he or she is offered work by the employer; he or she fails or refuses to attend or perform work for the employer. This is reflected in s 19(2), which expressly recognises the character of the action as between employer and employee. This is reinforced by the Explanatory Memorandum to the Fair Work Bill 2008 at [91] which stated:

“Subclause 19(2) provides that action is not considered industrial action if the action has been authorised or agreed to by the person to whom the action is directed.”

89    Further, the terms of item 7(c) in providing for an independent contractor to be the person against whom “action” (not “industrial action”) is taken, supports the notion that the industrial action of an employee under s 19(1)(a) against a person is his or her employer. The character of the person in s 19 is either employer or employee. Thus, the action that is industrial action is by the parties to the employment relationship. This reflects the principal Constitutional foundation of the FW Act seen in s 14: the “regulation of the activities, functions, relationships … of a [constitutional corporation] … and to the regulation of … its employees …”: Re Pacific Coal Pty Ltd; ex parte Construction, Forestry, Mining and Energy Union (2000) 203 CLR 346 at 375; affirmed in Work Choices Case (2006) 229 CLR 1 at [178].

90    Thus any industrial action against John Holland had to be by its employees. None was pleaded, John Holland not being pleaded as an employer. There was no finding of any action by John Holland employees. Such evidence as touched on the matter was that the employees of John Holland went back to work on Friday afternoon after the Comcare meeting (see [37] above). The evidence does not disclose whether they had taken any action in the morning; though Mr O’Connor stated in his original statement at para 33 that at 8:30am on Friday he spoke to John Holland employees as set out at [34] above.

91    In these circumstances, there being no industrial action by the actions of employees of subcontractors against John Holland and the case not having been pleaded that the industrial action was by John Holland employees, Mr Auimatagi cannot have organised industrial action against John Holland: Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2015] FCAFC 25; 230 FCR 298 at 326 [149]-[150].

92    If this be incorrect, the appellants submitted that s 19(2)(a) was engaged: that the employers of the workers (that is the subcontractor employers) had authorised or agreed to the action. The debate about this issue raised both a question of principle and questions of evidence.

93    The question of principle relates to the onus of proof. The appellants submitted that the onus lay upon the Commissioner at the hearing to negative the matters in s 19(2)(a). The respondent submitted that the onus was upon the party propounding the circumstances in s 19(2).

94    The appellants submitted that s 19(2) was part of the definition of industrial action, relying on passages from Director of Public Prosecutions v United Telecasters Sydney Ltd [1990] HCA 5; 168 CLR 594. The offence in that case was to the effect that a licensee shall not broadcast or televise an advertisement for, or for the smoking of, cigarettes or cigarette tobacco. A subsection of the offence provision exempted from the prohibition televising of a matter of an advertising character “as an accidental or incidental accompaniment of the broadcasting or televising of another matter” [and where there was no payment or consideration]. After referring to the rule in Woolmington v Director of Public Prosecutions [1935] UKHL 1; AC 462 at 481, Brennan, Dawson and Gaudron JJ referred to the need to discern from the statute the legislative intent from any proviso, saying at 601:

“Whilst it is convenient to speak in terms of provisos or exceptions, the legislative intent cannot be ascertained as a mere matter of form.”

95    Looking at the proviso there it was considered as not intended to cast any burden on an accused, saying at 601:

“Whilst sub-s (10) cuts down the scope of sub-s (5A) it does so by way of definition rather than by way of proviso, exception or saving …”

96    The appellants submitted that this latter passage of their Honours was referrable to s 19(2) since it can be seen as part of the definition of “industrial action” rather than as a proviso. With respect, this is to elevate form over the substance of the true task of ascertaining the intended operation. The subject matters of all of s 19(2)(a), (b) and (c) are, to a greater or lesser degree, within the knowledge of the person in question: the employee for (a) and (c) and the employer for (b). The Full Court in Adams v Director of the Fair Work Building Industry Inspectorate [2017] FCAFC 228; 351 ALR 379 discussed the question of burden and onus in relation to s 19. The Court (North, Dowsett and Rares JJ) accepted the submissions of the parties that there was an evidential onus upon the party concerned to raise the issues in s 19(2)(a) or (b) or (c), but ultimately it was for the party propounding that fact of industrial action to prove it. The nature of that evidential burden from a civil penalty case was discussed by the Court at 351 ALR 412-414 [106]-[110]. We would adopt that approach. It is sufficient to cite [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) 246 CLR 182; 285 ALR 420; [2012] HCA 5 at [51]–[52], where his Honour cited Jayasena v R [1970] AC 618 at 624; [170] 1 All ER 219 (Jayasena). 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 CLR 61; ALR 566.

97    The lack of reference to United Telecasters does not undermine the authority. There is no “rule” in that case other than that it is a matter of statutory construction as to how a proviso operates. Here, though s 19(2) is in form part of the definition, it deals with matters within the ken of the particular person and it is for him or her to raise and deal with in evidence to a level of sufficient evidence from which the tribunal could (not would) infer the matter asserted.

98    In these circumstances it was necessary for the primary judge to have examined the evidence to assess whether the appellants had discharged the evidential onus. Her Honour did not do so. It is necessary, therefore, for us to do so (on the hypothesis that we are wrong as to the meaning of “industrial action”).

99    There were five subcontractors as referred to at [18] above. The first body of evidence is that of Mr Armstrong, who was the Commissioner’s inspector. He was concerned with the question whether there was unprotected industrial action. If the action was authorised or agreed to by the subcontractor it could not be so characterised, because it would not have been industrial action. His investigation lasted until June 2014. He was called to give evidence. He accepted as correct that “there was a strong argument that the workers did not commit unprotected industrial action because the directors or supervisors [of the subcontractors and subcontractors’ workers] either tacitly or openly supported the work stoppage”. That was his finding. He was then asked, and he then explained, how he reached that undifferentiated finding about all workers. His finding was endorsed by his superior. It is unnecessary to descend into the detail of the running sheet. There was evidence upon which the primary judge could have found the matters in s 19(2)(a). It was then for the respondent as applicant to prove industrial action notwithstanding the evidence of Mr Armstrong. There was no real attempt to do so and no finding by the primary judge.

100    Thus, for the two reasons discussed above, ground 2 should succeed in that there was not shown to be industrial action taken against John Holland, and so Mr Auimatagi (and the Union) could not be found to have organised something that did not happen.

101    The declarations and orders made will thereby need to be set aside to remove the engagement of s 342(1) and item 7(a).

Ground 4

102    The adverse action asserted was also founded on item 7(c) in the table to s 342(1) of the FW Act.

103    Item 7(c) is in the following terms:

“Adverse action is taken by an industrial association or an officer of an industrial association against a person if the person is an independent contractor, [and the officer] takes action that has the effect, directly or indirectly, of prejudicing the independent contractor in relation to a contract for services.”

104    There was no contention below that action was not taken against John Holland. The appellants, however, put below and on appeal, that there was no evidence of prejudice in relation to a contract for services.

105    The prejudice particularised under para 18 of the ASOC was that “by the stoppage of work John Holland was prejudiced in its ability to provide services at the site.”

106    Four employees of John Holland gave evidence; none gave any evidence of financial or economic or other loss to John Holland.

107    The primary judge dealt with this at [181] to [184], as follows:

181. The respondents contend that there is no evidence before the Court that John Holland suffered a real or substantial prejudice. The applicant alleged that the stoppages of work prejudiced John Holland’s ability to provide building services to the Site.

182. The respondents submit that in the absence of any evidence provided by the applicant’s witnesses of any prejudice suffered by John Holland, such an allegation is not made out.

183. However, to my mind, it goes without saying that if the vast majority of an 82 man workforce leave a site and do not work for a day (let alone 3 days), the prejudice suffered by John Holland is more than “merely possible or hypothetical”. I am satisfied that such prejudice is real and substantial (see Australian Building and Construction Commissioner v Hall [2017] FCA 274 at [151]-[153]).

184. In the circumstances, the action taken by the first respondent had the effect, directly or indirectly, of prejudicing John Holland in relation to its contract for services.

(emphasis in original)

108    The first complaint made by the appellants was that it was wrong to say that the vast majority of an 82 man workforce left the site for one or three days. It was submitted that there were no more than 50 workers who participated. The respondent accepted that criticism of the judgment, but submitted that it was of no account since that kind of interruption to the work site was necessarily real and substantial prejudice.

109    Prejudice is a matter of fact. It is therefore necessary to be proved. In another context, the altering of “the position of an employee to the employee’s prejudice” in s 298K(1) of the WR Act, Brennan CJ, McHugh, Gummow, Kirby and Hayne JJ in Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia [1998] HCA 30; 195 CLR 1 at 18 described the provision as a “broad category” that covered “not only legal injury but any adverse affection of, or deterioration in, the advantages enjoyed by the employee.” Meanings given by dictionaries are equally broad: Macquarie (1985) – “disadvantage remitting from some judgment or action of another; resulting injury or detriment”; the Shorter Oxford Dictionary on historical principles (1973)“injury, detriment or damage caused to a person by judgement or action in which his rights are disregarded”.

110    In the context of item 7(c) one can see that the prejudice is likely to be economic in some fashion, but it would be wrong to seek to generalise or narrow the expression beyond recognising that it is harm or disadvantage of a kind that may be suffered in a context of employment and business as an independent contractor who has entered into a contract for services. It is likely in most cases to be financial loss, but the generality of the word should not be necessarily so limited.

111    No one sought to put this into concrete form contextualised by reference to the relevant contract for services. The absence of the subcontractors’ workers from the site was said to be prejudice on its face.

112    In argument on the appeal, senior counsel for the respondent submitted that the relevant contract for services was or were the contracts with the subcontractors. (On another view, it might be John Holland’s head contract with the principal.)

113    In relation to those contracts for services John Holland has not received the labour of the subcontractors’ workers for these days. It is not easy to see how John Holland is disadvantaged in relation to those contracts by that fact. The evidence that there was a degree of agreement and authorisation of the conduct by the subcontractors themselves would make it very difficult to see how they could be paid for those days. If (contrary to the submission of senior counsel) the relevant contract was John Holland’s head contract, it might well be possible that the three day loss of work delayed work or interfered with some critical path, or resulted in some financial loss or other disadvantage to John Holland. But why, in particular in civil penalty proceedings, would one make that assumption when the party in whom the knowledge dwells does not lead any evidence about such straightforward matters with a full opportunity to do so?

114    We should not be taken to be placing some narrow construction on the word “prejudice”. Rather, it is a word of wide import. But it should be proved, unless the reality of it is manifest. Not to have the subcontractors’ workers working for three days may or may not have disadvantaged John Holland in some way financially or otherwise in relation to the contracts for services with the subcontractors or in relation to the head contract. One can imagine fairly easily how that might be the case and how it might be proved. One can also imagine, especially in circumstances when the subcontractors authorised the action, that there was no prejudice to John Holland in relation to those contracts; and one can imagine that, especially with its own workers working, there was no substantial disadvantage to John Holland in relation to the head contract. Evidence was called for.

115    Reliance was placed on what Dowsett and Rares JJ said in Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2017] FCAFC 53; 249 FCR 458. That case concerned the blockade of a building site. The relevant facts and the manifest prejudice can be seen from [77] to [80] of their Honours’ reasons:

77. First, Mr Buchan explained the respondents’ “rationale” for the blockade by saying to the television reporter:

Reporter: Who is it that has to pay who is not paying them, is it the ceilings company?

Mick Buchan: Well I suppose that’s something that we’ll get to the bottom of at the end of the day, I think that everyone ducks for cover whether it’s the principal contractor or the subcontractor[. A]t the end of the day what we care most about is that we don’t care where it comes from whether it’s from the client whether the principal whether the subcontractor the workers [sic] given up his work and put his blood to the stone and built the project and needs to be paid properly.

Reporter: So these guys here are they subcontractors or…

Mick Buchan: The guys involved here are the employees of the ceiling and wall contractor on the project.

Reporter: What’s the name of the company?

Mick Buchan: The principal contractor is Broad.

Reporter: Wall and ceiling company. Is that what it’s called?

Mick Buchan: Concealed Interiors. (emphasis added)

78. In other words, the CFMEU and at least Mr Buchan, but we would infer all of the respondents, intended the blockade to affect, and so to injure, a wide range of persons quite apart from Concealed Interiors. As Mr Buchan said, “we don’t care where it comes from”. That statement reflected the reality of the blockade as industrial bullying. It indiscriminately targeted all persons and businesses associated with the construction work at the site, regardless of their possible responsibility for what was only a “reasonable belief” of the respondents that Concealed Interiors was in default of paying its, or some of its, employees their entitlements. Similarly, in the agreed facts (at [23] that North J has quoted in [15] of his reasons), Mr Joshua approached Broad’s site supervisor, David Lewis, and said words to the effect:

You guys need to sort out your CA’s as Concealed are a shower of shit. They need to make it happen and pull the pin on them [sic]. We are doing exactly the same thing as we did with them six months ago. (emphasis added)

79. Secondly, it was unnecessary to have evidence of any particular or quantified loss in those circumstances, when the agreed facts accepted that all but 10 to 15 of the 160 workers employed by the 22 subcontractors working on the site on 22 October 2013 were prevented or dissuaded from entering the site “and consequently refused or failed to perform work at the Site between 6.30am and 10.00am”. As a result, those 145 to 150 workers either were not paid for that time, or perhaps longer, or if they were, their employers paid them and incurred the overheads of running their businesses for no productive result. Moreover, at least three and a half hours of work, on a fine day, were lost and there were likely to be disputes among the various parties as to who bore the contractual liability for the loss of productivity and time caused by the blockade.

80. Where a major building site is blockaded so that work cannot be performed, substantive economic loss to someone is an inevitable consequence. Indeed the infliction of that type of loss was the respondents’ purpose. They intended that their coercion would produce the result that someone would pay Concealed Interiors’ employees in circumstances where, as Mr Buchan said, “we don’t care where it comes from”.

(emphasis in original.)

116    These comments were made in the context of the assessment of the adequacy of a penalty. Someone had undoubtedly suffered loss. Here the adverse action is said to be against John Holland. It is John Holland’s prejudice in relation to a contract for services that must be shown. It was not.

117    Ground 4 should succeed.

118    The success of grounds 2 and 4 were that there was no adverse action under items 7(a) or (c) proved and so no adverse action. Declaration 1, and declaration 3 insofar as it relates to s 340, must be set aside for that reason.

Ground 3

119    Ground 3 also concerned the alleged contravention of s 340. It asserted that:

The primary judge erred in making the orders in respect of the contravention of s 340 of the FW Act on the basis that the first appellant encouraged and incited action because no such findings could be or were made under s 342 of the FW Act and no findings were made under s 362 of the FW Act (which was not pleaded).

120    Declaration 1 contained the phrase “organising, encouraging and inciting action, including industrial action”. The words “encouraging and inciting” form no part of s 340. The primary judge used these words in [167] of the reasons in recounting the events of 16 January 2014:

At about 12:00pm on 16 January 2014, Mr O’Connor told the workers at a toolbox meeting on Site that they were required to wear long pants and long sleeves for health and safety reasons. The first respondent interjected at that meeting and called out words to the effect, “Touch one. Touch all”. I accept that these words were used by the first respondent on at least two occasions, first to the workers at the toolbox meeting room, and subsequently to the Health and Safety Committee meeting. I also find that the words were emotive and were words of encouragement and incitement to the workers to stand together and stop work if John Holland tried to enforce the Two Longs Safety Policy against any worker the following day who came to work in shorts and short sleeves and was asked by John Holland to change to longs or leave the Site.

121    The words find their place in the FW Act in s 362 as a comparison provision to s 550. These sections are in the following terms:

362 Advising, encouraging, inciting or coercing action

(1)    If:

(a)    for a particular reason (the first person’s reason), a person advises, encourages or incites, or takes any action with intent to coerce, a second person to take action; and

(b)    the action, if taken by the second person for the first person’s reason, would contravene a provision of this Part;

the first person is taken to have contravened the provision.

(2)    Subsection (1) does not limit section 550.

550 Involvement in contravention treated in same way as actual contravention

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

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

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

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

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

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

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

122    It is accepted by the respondent that s 362 had nothing to do with the matter. If declaration 1 were not otherwise to be set aside, it would be varied by deleting these words as surplusage.

Grounds 5, 6 and 6A

123    Grounds 5, 6 and 6A were in the following terms:

5.    The primary judge erred in making the orders in respect of the contravention of s 343 of the FW Act based on a finding that the industrial action was unlawful or unconscionable because there was no contravention of s 340 and unconscionability was not demonstrated.

6.    The primary judge erred in making the orders in respect of contraventions of s 343 by the appellants in circumstances where the respondent did not plead that the action was threatened, that there was an intent to coerce John Holland not to exercise a workplace right, that there was a negation of choice and/or that the action was unlawful, illegitimate or unconscionable.

6A.    The primary judge erred in making the orders in respect of contraventions of ss 340 and 343 of the FW Act based on the reason or intent of the first appellant in organising industrial action or action by applying s 361 of the FW Act.

124    Section 343 of the FW Act is in the following terms:

343 Coercion

(1)    A person must not organise or take, or threaten to organise or take, any action against another person with intent to coerce the other person, or a third person, to:

(a)    exercise or not exercise, or propose to exercise or not exercise, a workplace right; or

(b)    exercise, or propose to exercise, a workplace right in a particular way.

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

(2)    Subsection (1) does not apply to protected industrial action.

125    The primary judge dealt with s 343 under a heading, as follows:

12. Did the first respondent organise any action against John Holland with the intent to coerce John Holland not to exercise its workplace right; or not to exercise its workplace right in a particular way in terms of s.343 of the FW Act?

126    The primary judge framed her approach by reference to relevant authority at [199] to [202] of her reasons, as follows:

199. As identified in Seven Network (Operations) Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2001] FCA 456 at [41], per Merkel J, the necessary elements of a contravention of s.343 are that:

i)    Pressure be exerted which, in a practical sense, will negate choice.

ii)    The pressure must involve conduct that is unlawful, illegitimate or unconscionable.

200. Negation of choice is more than an intent to influence or persuade or induce. Coercion requires a high degree of compulsion and not a lesser form of pressure by which a person is left with a realistic choice as to whether or not to comply (see National Tertiary Education Industry Union v Commonwealth [2002] FCA 441; (2002) 117 FCR 114 at 143 per Weinberg J).

201. In Fair Work Ombudsman v National Jet Systems Pty Ltd (2012) 218 IR 436 at [36], Buchanan J stated that:

“The pressure must be such as to leave no real choice. It must negate, not merely burden, the will”.

202. An examination of intent is relevant to the first element of coercion, and an objective examination of the circumstances is relevant to the second element (see Esso Australia Pty Ltd v The Australian Workers’ Union [2016] FCAFC 72 at 448 per Buchanan J) (Esso).

127    The primary judge examined the question of “negation of choice” at [203] to [205], the question of whether the “pressure was unlawful or unconscionable” at [206] to [210] and the present appellants’ complaints about the pleadings at [211] to [221]. Her Honour’s conclusions were at [222].

128    To the extent that the appellants argued that there was no workplace right for the purposes of the operation of the section, that argument cannot succeed for the reasons expressed above.

129    The appellants complained that the case pleaded was only ever directed to the exercise of a workplace right in a particular way. (See para 23 of the ASOC and issue 20 of the agreed statement of issues annexed to the reasons for judgment.) That complaint is legitimate and to the extent that declaration 2 is framed as coercion not to exercise a workplace right (at all), it should be set aside.

130    The next complaint, and more substantial one, was that the words used in explication of coercion by Merkel J in Seven Network and set out by the primary judge at [199] of the reasons were not pleaded.

131    This argument dovetailed with the complaints about the use made by the primary judge of s 361 of the FW Act at [186] to [196] of the reasons.

132    The arguments must be disentangled somewhat. First, it can be accepted that there was no unfairness at one level in failing to plead “negation of choice, unlawful or unconscionable” as the “constituent elements” of coercion. The well-known judgment in Seven Network and the then recent judgment in Esso Australia Pty Ltd v The Australian Workers Union [2016] FCAFC 72; 245 FCR 39 at 84 [174] (Buchanan J, with whom Siopis J agreed at [1]) made that point. That would explain why no complaint was made by experienced practitioners about surprise in relation to para 23 of the ASOC and why agreed issue 20 was framed as it was.

133    This negation of choice, unlawfulness and unconscionability (on the settled state of authority) were concepts central to the consideration of coercion.

134    As such there could be no complaint that they were the subject of consideration. However, the application of s 361 of the FW Act is another question. Section 361 is in the following terms:

361 Reason for action to be presumed unless proved otherwise

(1)    If:

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

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

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

(2)    Subsection (1) does not apply in relation to orders for an interim injunction.

135    The words used by Parliament are “particular intent”. The intention pleaded in para 23 of the ASOC was “with the intent of coercing”, as follows:

The First Respondent took this action with the intention of coercing John Holland to exercise a workplace right in a particular way and therefore contravened s.343 of the FW Act.

                PARTICULARS

(i)    The workplace right of John Holland was a role or responsibility under a workplace law within the meaning of s 341(1)(a) of the FW Act – namely a duty to ensure the health and safety of workers on the Site pursuant to s.19 of the Workplace Health and Safety Act 2011 (Cth).

(ii)    The First Respondent intended to coerce John Holland to exercise that workplace right in a particular way, namely, by adopting a safety policy which allowed workers to wear shorts and short sleeve tops.

(iii)    The Applicant relied upon s.361 of the FW Act.

(iv)    To the extent necessary the Applicant relies upon s 360 of the FW Act.

136    In Australian Building and Construction Commissioner v Hall [2018] FCAFC 83; 277 IR 75, the Court (Tracey, Reeves and Bromwich JJ) discussed what was necessary to be alleged (the word used in s 361(1)(a)) for the reverse onus in s 361(1) to be engaged. The case involved alleged coercion under ss 343 and 355 of the FW Act.

137    At [13] to [15], the Court emphasised the clarity and specificity that is required and the reasons therefore:

13. Stated compendiously, s 361(1) places an onus or burden on a person involved in a proceeding relating to a contravention of Part 3-1 of the FWA to “prove otherwise” than that he or she took the contravening action for the particular reason, or with the particular intent, alleged in the applicant’s application. The consequence of a failure to discharge this burden is that it is presumed against the person concerned that the contravening action was taken for that particular reason or with that particular intent. Before this presumption operates, however, two pre-conditions must be met. First, under s 361(1)(a) the particular reason or the particular intent for the contravening action must be alleged in the application. It is with respect to that alleged reason or that alleged intent that the person concerned must prove otherwise. The word “particular” in s 361(1)(a) must be given its ordinary and natural meaning. Relevantly, that is: “2. being a definite one, individual, or single, or considered separately: each particular item. 3. distinguished or different from others or from the ordinary; noteworthy; marked; unusual. … 6. dealing with or giving details, as an account, description, etc., of a person; detailed; minute; circumstantial”. See Susan Butler (ed), Macquarie Dictionary (Pan Macmillan, 7th ed, 2017) vol 2, 1096.

14. It follows that an allegation under s 361(1)(a) must precisely and distinctly identify the alleged reason, or the alleged intent, for the contravening conduct. This need for care and precision in making the allegations in connection with which the presumption may operate is similar to that required with respect to the analogous situation of averments in criminal prosecutions (see Gallagher v Cendak [1988] VR 731 at 738–739 (Vincent J) and JD Heydon, Cross on Evidence (LexisNexis Butterworths, 11th ed, 2017) at [7105]). In Part 3-1 of the FWA, it is also heightened by the provisions of s 360. That section, when read with s 361(1)(a), requires a person who is alleged to have taken a contravening action to establish that the particular reason for which it is alleged that person took that action is not included among any of the reasons for which he or she took that action. It is important to note that, in contrast to s 361, s 360 only applies to a “particular reason” and it does not extend to a “particular intent”, both of which are covered by s 361. Section 360 therefore only applies to the “particular reason” component of s 361.

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

138    After referring to a number of authorities the Court said at [19]:

Having regard to these observations and, in particular, to the provisions of s 361(1)(b), we consider that an applicant wishing to take advantage of the presumption in s 361, in addition to making the allegation in a form that meets the requirements of s 361(1)(a), must provide sufficient information about the action, and the related reason or intent (or both) for which that action was taken, to show that, in combination, they would constitute a contravention of a provision of Part 3-1 of the FWA. This means that, in a proceeding such as the present one, which was conducted on pleadings, an applicant is required to plead in his or her statement of claim all the material facts concerning the contraventions alleged against the respondent. As French J said in Kernel Holdings Pty Ltd v Rothmans of Pall Mall (Australia) Pty Ltd (1991) 217 ALR 171 at 173; [1991] FCA 557 at 6, “[a] material fact is one which is necessary to formulate a complete cause of action. … Material facts must be pleaded with the degree of specificity necessary to define the issues and inform the parties in advance of the case they have to meet.”

139    After dealing with the notion of adverse action in ss 340-342 the Court turned to discuss coercion in ss 343 and 355 (at [20]-[24]). In relation to the latter and “intent to coerce” the Court said at [25] and [26]:

25. It is well-established that the expression “intent to coerce” in ss 343 and 355 carries within it a requirement to establish two discrete elements: the negation of choice; and the use of unlawful, illegitimate or unconscionable conduct to do so (see Esso Australia Pty Ltd v Australian Workers’ Union (2016) 245 FCR 39 at 84; [2016] FCAFC 72 at [174] (Buchanan J, with whom Siopis J agreed at [1]). We interpose that this conclusion and the line of authorities relied upon to reach it do not appear to have been affected by the recent High Court judgment on appeal from that judgment (see Esso Australia Pty Ltd v Australian Workers’ Union (2017) 350 ALR 404 at 425; [2017] HCA 54 at [61] (Kiefel CJ, Keane, Nettle and Edelman JJ).

26. Furthermore, and most importantly for present purposes, the Full Court also held in Esso that the intent aspect of the expression “intent to coerce” applies to the negation of choice element. This contrasts with the other element, the use of unlawful, illegitimate or unconscionable conduct, which is to be assessed objectively (see Esso at 86-87 [194]). It follows that the relevant particular intent for the purposes of a contravention of ss 343 and 355 is an intent to negate choice. It follows further that, for the presumption in s 361 to operate with respect to a contravention of those sections, the particular intent that must be alleged in the application is an intent to negate choice. Conversely, alleging that the particular intent was an “intent to coerce” creates ambiguity because that expression does not refer to an intent per se, but rather, as discussed above, refers to the two elements of coercion, only one of which relates to the alleged contravener’s intent.

140    The pleadings were then examined and found to be deficient. At [41] the Court said:

Finally, as is mentioned above at [26], the relevant “particular intent” in a contravention of ss 343 and 355 is an intent to negate choice. That particular intent has not been alleged in either of the two sets of allegations set out above. Instead, the expression “intent to coerce” has been used. As has also been mentioned above at [25], in this context, that expression conveys the two elements of coercion under ss 343 and 355 of the FWA. The pleaded allegations do not, therefore, convey the relevant particular intent required for a contravention of those provisions, namely an intent to negate choice. For these reasons, we do not consider the Commissioner complied with the first pre-condition mentioned above at [13]. That being so, we do not consider that the presumption in s 361 operated with respect to the alleged contraventions of ss 343 and 355.

141    The same deficiency exists in the present pleading. At [48] to [51] the Court in Hall discussed the question of the curing of any pleading deficiency, as follows:

48. At the hearing of this appeal, the Commissioner’s counsel acknowledged that many of these deficiencies were present in the ASOC. To attempt to overcome them, she sought to rely on various statements that were made in opening and closing submissions before the primary judge which, it was contended, clarified how the Commissioner’s coercion case under ss 343 and 355 was put. She claimed that none of the respondents had raised any concerns about the coercion case as it was pleaded in the ASOC. By not doing so, she contended, they had acquiesced in the trial being conducted on a different basis to that stated in the pleadings. We do not consider that these contentions can be accepted.

49. One of the main purposes of pleadings is to define the issues in dispute with sufficient clarity to enable the opposite party to understand the case he or she has to meet and to provide him or her with an adequate opportunity to prepare to meet that case: see Dare v Pulham (1982) 148 CLR 658 at 664 (Murphy, Wilson, Brennan, Deane and Dawson JJ). A concomitant of this principle is that a party is not entitled to depart from his or her pleaded case except if the parties have both deliberately chosen to conduct the dispute on a different basis. That principle was expressed in Banque Commerciale S.A., En Liquidation v Akhil Holdings Limited (1990) 169 CLR 279 at 286–287 in the joint judgment of Mason CJ and Gaudron J as follows:

The function of pleadings is to state with sufficient clarity the case that must be met: Gould and Birbeck and Bacon v Mount Oxide Mines Ltd (In Liquidation) [(1916) 22 CLR 490], per Isaacs and Rich JJ at 517. In this way, pleadings serve to ensure the basic requirement of procedural fairness that a party should have the opportunity of meeting the case against him or her and, incidentally, to define the issues for decision. The rule that, in general, relief is confined to that available on the pleadings secures a party’s right to this basic requirement of procedural fairness. Accordingly, the circumstances in which a case may be decided on a basis different from that disclosed by the pleadings are limited to those in which the parties have deliberately chosen some different basis for the determination of their respective rights and liabilities. See, e.g., Browne v Dunn [(1893) 6 R 67]; Mount Oxide Mines [(1916) 22 CLR 490 at 517-518].

(Emphasis added.)

50. In our view, these observations apply with even more force in a proceeding such as this where declarations of contravention of the FWA were sought against the respondents and civil penalties were sought to be imposed on them. Faced with those serious consequences, the respondents were entitled to be told clearly and precisely in the Commissioner’s ASOC what case it was they had to meet and, unless they deliberately chose to allow the case to be conducted on a different basis, to direct their evidence and arguments to that case and that case alone. Plainly, this latter exception did not permit the Commissioner to make a significant addition to, or departure from, the pleaded case, in counsel’s opening or closing submissions and then seek to justify that course by pointing to the respondents’ failure to object as evidence of their acquiescence in that course. If that were the test, this departure from the basic requirements of procedural fairness would not occur by the deliberate choice of the party entitled to fair notice but rather at the self-serving behest of his or her opponent. If such an approach were permitted, the requirement to give fair notice would be made redundant, trial by ambush would become a legitimate tactic, and the issues in dispute at trial would become a movable feast. As well, the ability of a trial judge to manage the trial to ensure it fairly addressed the issues in dispute would be significantly eroded, if not entirely destroyed. So, too, would be the capacity of the trial judge to identify the issues he or she needed to decide.

51. There is insufficient evidence that any such deliberate choice was made by the respondents in this matter. We do not, therefore, accept that the Commissioner was entitled to escape the deficiencies in the ASOC by adopting the approach outlined above.

142    Here, there was a broad-ranging complaint as to the lack of particularity. But ultimately the question is one of statutory construction: what is the particular intent in s 360, in the context of ss 343 and 353 and intention to coerce. The Full Court in Hall has stated at [41] that it is “an intent to negate choice”. To the extent that needs to be pleaded, it was not. No argument was put that Hall was plainly wrong, in particular on the basis that a pleading of “intent to coerce” engages the accepted meaning of intent to negate choice (said in the authorities to be subjective) and action that is unlawful or unconscionable (said in the authorities to be objective). On its authority s 361 as not engaged.

143    It is not clear, with respect, how the primary judge used s 361. At [186] to [195] of the reasons the primary judge discussed s 361 in the context principally of s 340. In para 20 of the ASOC it was alleged that Mr Auimatagi took the adverse action because John Holland exercised a workplace right. At [195] of her reasons the primary judge said:

No evidence was provided by the respondents to rebut the presumption that the first respondent’s actions were taken other than for the reasons alleged. These reasons, inter alia, were to prejudice John Holland directly or indirectly in relation to its building contract; and, to force John Holland to abandon its Two Longs Safety Policy. The industrial action referred to above was organised because John Holland sought to enforce its Two Longs Safety Policy.

144    As to the first reason identified, it was not pleaded. There was a pleading of causing prejudice for item 7(c), but it was not part of the case that the reason for the action was to prejudice John Holland. The second reason was not so pleaded, but it can be seen, perhaps, as a re-expression of the reason pleaded – that the action was taken because John Holland exercised the workplace right. The second reason might also be seen as an expression of an intention to negate choice by forcing the abandonment of the Policy.

145    The better reading, however, of the primary judge’s reasons at [203] to [205] was that her Honour looked to the evidence (and not s 361) to find an intent to negate choice. At [203] her Honour set out the facts she found (about which there is no complaint on appeal):

The first respondent’s relevant actions comprise what he said to the workers at the meeting at 7am on 16 January 2014 (referred to in paragraph 133 above in these Reasons) and the circumstances below, and lead to the overwhelming inference that the first respondent’s conduct was done with the intent of negating the choice of John Holland to enforce its Two Longs Safety Policy without work stoppages. That inference is bolstered by the evidence before this Court of the following circumstances:

i.    The first respondent’s plan to impose a choice to wear shorts and short sleeves upon John Holland as had been done at Barangaroo and Tamworth.

ii.    The first respondent put his plan to a meeting of workers in the context of suggesting they should have choice and then suggesting that such choice should apply the next morning (being a Friday) or a Monday morning. On discovering the vote was 81 out of 82, the first respondent stated it would be Friday.

iii.    Thereafter, the first respondent told John Holland on 16 January 2014, that if it enforced its Two Long Safety Policy on 17 January 2014 by asking any worker to stop work if not dressed in accordance with the Two Longs Safety Policy, all workers on the Site would stop work.

iv.    At approximately 8:20am on 16 January 2014, the first respondent told Mr O’Connor, the John Holland project manager, that if any worker was removed from the Site then the whole Site would stop work and return to the crib rooms.

v.    At approximately 8:30am on 16 January 2014, the first respondent told the John Holland Safety Manager, Mr Brown, that if John Holland ask one worker to leave, all would go, “Take one out, we all out”.

vi.    At approximately 10:00am on 16 January 2014, during the Health and Safety Committee meeting at the Site, the first respondent said words to the effect “Take one out, we all go” and “Touch one, touch all”.

vii.    At approximately 12:00pm, when Mr O’Connor was addressing workers at the Site at a toolbox meeting, the first respondent said words to the effect, The boys have spoken. They want shorts they would be wearing them tomorrow. If you touch one, you touch all.

146    That this is the better view of the primary judge’s approach makes it unnecessary to deal with the further submission that s 361 could not be used to reverse the onus for the purposes of s 343 in relation to “organise … or threaten to organise … any action … with intent to coerce …” because s 361 only referred to taking action.

147    At [204] and [205] the primary judge expressed her conclusions, as to an intent to negate or deny choice to John Holland. No complaint was made about those findings.

148    We would reject the complaint made about what was said to be the unpleaded nature of the “threatening” of action. In substance it was pleaded in the particulars to para 10 of the ASOC.

149    The final aspect of the operation of ss 343 and 361 in respect of which there was an asserted deficiency in the pleading is that part of ground 6 that relates to the absence of specific pleading of unlawfulness or unconscionability. We have dealt earlier with the effect of Hall brought about by the failure to plead an intention to negate choice. The identification of unlawfulness and unconscionability as objective meant that there was no requirement expressed in Hall to plead an intent in relation to these concepts to engage s 360. Thus the complaint was of a more traditional kind: that the pleading was inadequate. This was the kind of consideration with which Ryan J dealt (in a pleading dispute) in Laing v Construction, Forestry, Mining and Energy Union (No 2) [2006] FCA 750; 155 IR 244. The parties here were under no misapprehension of what the universe of relevant behaviour or circumstances was. This pleading point has no merit.

150    A more substantive complaint however is ground 5 with respect to the characterisation of the action as intended to coerce, as found by the primary judge, because the action was unlawful or unconscionable.

151    For the reasons given earlier it has not been demonstrated that the conduct was unlawful. The case of adverse action has not been demonstrated. On the evidence there was the clear view of the inspector of the Commissioner that there was no industrial action, and so no unprotected industrial action; and the Commissioner did not prove that there was industrial action bearing in mind the onus in s 19(2)(a).

152    The question is therefore whether the conduct is such as to warrant the characterisation of an intent to coerce. The primary judge dealt with the question as one of unconscionability, briefly, at [208], as follows:

Further, the first respondent’s conduct in seeking to negate John Holland’s choice to enforce its Two Longs Safety Policy, when it had a statutory duty in relation to the health and safety of its workers, was nothing short of unconscionable.

153    With respect, this was an inadequate expression of reasons and an inadequate basis for a conclusion as to the matter. There are a number of difficulties. First, the conclusion seems to rest upon the proposition that by negativing John Holland’s “choice to enforce its Policy, the first appellant was negating John Holland’s ability to comply with its statutory duty under the WHS Act in relation to the health and safety of its workers. This must be premised on an implicit, and unproven, assumption that any policy other than the Policy would have put John Holland in breach of the WHS Act. There is no evidence as to this. Indeed, the evidence suggests this was not the case. The primary judge accepted that Barangaroo and Tamworth had adopted clothing policies allowing short sleeves and/or shorts at [203(a)]. One cannot conclude, without more evidence, that an attempt to force a change of the clothing required on site by John Holland was forcing John Holland to acquiesce to something contrary to its statutory duties under the WHS Act.

154    The concept of coercion, and the place of unconscionability within it, has been the subject of numerous cases. There was no argument in this appeal as to this apparently settled position.

155    The notion of coercion in federal industrial law has recently been illuminated by, with respect, the helpful article by the Hon C N Jessup. “Coercion in federal industrial law” (2018) 46 Australia Bar Review 104. The conception of coercion (as a noun) found in the infinitive form in the context of intention has been accepted by Full Court and single judge authorities in this Court as requiring the pressure applied to be unlawful, unconscionable or illegitimate: Finance Sector Union of Australia v Commonwealth Bank of Australia [2000] FCA 1468; 106 FCR 16; National Union of Workers v Qenos Pty Ltd [2001] FCA 178; 108 FCR 90; Cadbury Schweppes Pty Ltd v Australian Liquor Hospitality & Miscellaneous Workers’ Union [2000] FCA 1793; 106 FCR 148; Seven Network (Operations) Ltd v Communications, Electrical, Electronic, Energy Information, Postal, Plumbing and Allied Services Union of Australia & Ors [2001] FCA 456; 109 FCR 378 at 388 [41]; Construction, Forestry, Maritime and Energy Union v Alfred [2011] FCAFC 13; 203 IR 78; State of Victoria v Construction, Forestry, Mining and Energy Union [2013] FCAFC 160; 218 FCR 172; and see also the cases cited by Mr Jessup at 114, fn 63.

156    Given the lack of argument it is inappropriate to explore the doubts expressed by four members of the High Court in Esso Australia Pty Ltd v The Australian Workers’ Union [2016] FCAFC 72; 245 FCR 39 as to the relevance of duress conceptions that shaped this jurisprudence to inform the interpretation of ss 343 and 348 of the FW Act.

157    The notion of unconscionability, as imposing a standard of right behaviour formed around conscience, will take its content from the values and expected conduct in an industrial setting. It is a word best understood in its practical application to real life settings where there can be an articulation and expression of why, in an employment and industrial context, the pressure sought to be exerted should be ascribed such a description of departing from right behaviour.

158    Although illegitimacy can be seen to be a similar conception to unconscionability as a word connoting a degree of right behaviour, illegitimacy has emerged (rightly or wrongly) as its own separate category of behaviour: see Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2017] FCA 157; 267 IR 130 per Reeves J at [100]-[101], [153]-[154]; Williams v Construction, Forestry, Mining and Energy Union [2009] FCA 223 per Jessup J, [109]-[111]; Director of Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union (The Red & Blue Case) [2015] FCA 1125; 254 IR 200 per Jessup J; Williams v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2010] FCA 754; 196 IR 365 per Jessup J at [177], [201-[202], [218]-[219]; Finance Sector Union of Australia v Commonwealth Bank of Australia [2000] FCA 1468 per Gyles J at [41]; Fair Work Ombudsman v National Jet Systems Pty Ltd [2012] FCA 243; 218 IR 436 per Buchanan J. It remains for another argument, whether this kind of definitional categorisation is helpful.

159    The notion of proportionality has been said to inform the concept of illegitimacy, in an assessment whether there is a reasonable or justifiable connection between the nature of the demand made and the nature of the pressure exerted: see Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2017] FCA 57, where Reeves J discussed in detail the question of proportionality.

160    In undertaking this analysis, it is useful to recall the comments of Madgwick J at [40] of Commonwealth Bank of Australia v Financial Sector Union of Australia [2006] FCA 1048; 154 IR 467, especially where the conduct undertaken to exert pressure is lawful:

… it should not be assumed, without very clear words, that the legislature proposed to interfere with traditional democratic freedoms … Likewise, it is unlikely that the legislature would have wished to stifle a wide range of ways of vigorous activity and of exerting power or influence, otherwise lawfully permitted and engaged in without general disapprobation, intended to force another party’s compliance in commercial and related contexts.

161    Examples of conduct that have been found to be illegitimate include where a person: organises for all workers to seek off site relocations (Williams v Construction, Forestry, Mining and Energy Union [2009] FCA 223; 179 IR 44, [109]-[111]), makes threats to put a company out of business (The Red & Blue Case [2015] FCA 1125, 254 IR 200), obstructs a site or locks out personnel from that site (Williams[2010] FCA 754; 196 IR 365; John Holland Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2009] FCA 235; 174 FCR 526; A & L Silvestri Pty Ltd v Construction, Forestry, Mining and Energy Union [2007] FCA 1047; 165 IR 94; Cadbury Schweppes Pty Ltd v Australian Liquor Hospitality & Miscellaneous Workers’ Union [2000] FCA 1793; 106 FCR 148), threatens or organises stoppages of work (Esso Australia Pty Ltd v The Australian Workers’ Union [2016] FCAFC 72; 245 FCR 39), or lies about their member count and threatens to sabotage the broadcast of key television events (Seven Network (Operations) Ltd v Communications, Electrical, Electronic, Energy Information, Postal, Plumbing and Allied Services Union of Australia & Ors [2001] FCA 456; 109 FCR 378).

162    Looking at the matter here and dealing with unconscionability first, the facts did not in our view amount to action with any necessary unconscionability. Mr Auimatagi was, clearly, trying to change John Holland’s views, but he was also playing his part in seeing the wishes of the workers on the site expressed. It was they who voted 81 to 1 not to follow the Policy. There was a degree of encouragement from Mr Auimatagi, but he was not bending a workplace to his or the Union’s will. He was seeking, clearly, to bring the Union’s (or his) views to the men, and when overwhelmingly supported by them, to put them squarely to John Holland. It may have been unwise, it may have been better to be more conciliatory, it may be open to some criticism, but it did not display any features (given that it has not been shown to be unlawful in the manner alleged in this case) to warrant the conclusion that he acted unconscionably and thus that he was acting coercively or with the intent to coerce John Holland. Mr Auimatagi was telling John Holland that the men would not attend dressed in accordance with the Policy. John Holland was telling Mr Auimatagi and the men that they would not be allowed to work on the site unless they did. There was a clear difference of opinion as to the Policy. By his organisation of the meeting, and by their vote, Mr Auimatagi and the workers each took action with a view to persuading John Holland to change its Policy. We would not characterise the events of 16 or 17 or 20 January as action with intent to coerce. This conclusion does not devalue or lessen the importance of safety. The refusal to follow the instruction may have been a breach of s 28 of the WHS Act. That was not alleged and there may be various answers to such an allegation.

163    There was no arrogance or expression of entitlement to act unlawfully. The wishes, perhaps ill-advised, of the men on the site were being given expression. A conclusion of unconscionability in the circumstances exposed by the evidence was unjustified and not open. The conclusion was not a discretionary evaluation. It was a conclusion of a legal standard as part of the meaning of coercion.

164    Was the action illegitimate? The aim was not to ensure that work was ceased completely, where the vote only served as a means to legitimise an improper aim. The temporary cessation of work was a consequence of the action taken, but the primary judge, correctly, did not go so far as to say it was the intent behind the action. This can be compared with situations in other cases where the purpose alleged is to ensure cessation of work and no evidence to the contrary is tendered, or to force the employer to employ a labourer on site. At its heart, the purpose was about giving the workers a choice, even if this meant John Holland’s choice to enforce its Policy in its form at that time was to be negated.

165    Turning to the nature of the pressure, Mr Auimatagi exerted pressure by the means listed in [203] of the liability judgment. He encouraged the workers to make a stand, organised and held a vote, and communicated the vote’s outcome and the workers’ will on 17 January 2014 to John Holland. All in all, the plan may be seen as disobedient. But it was not unlawful and not illegitimately disproportionate.

166    There was a focus, by the respondent and by the primary judge, on Mr Auimatagi’s comments along the lines of “touch one, touch all”. This comment should be taken in context. The workers had voted 81-1 in favour of making a stand. For the action to have the intended effect, and implicit in the making of “a stand”, is that they would be making a stand together. So, if one of the workers was approached and asked to leave the worksite due to their shorts or short sleeves, the other workers would follow, taking it (correctly) that they would all be so asked. This is not merely because of solidarity. Presumably, many of the other workers were wearing shorts or short sleeves. Simply put, enforcement of the Policy would mean the removal from the site of all of the workers wearing shorts or short sleeves. Calling out “touch one, touch all” was not so much a threat of cessation of productive work on site as an indication that the workers would all be making a stand, and that involved disobeying, together, a policy they viewed as inflexible.

167    It should also be noted that Mr Auimatagi did not suborn the workers to have them vote in favour of this action. Nor did he merely go “through the motions of having a vote” (contrast to Williams [2010] FCA 754; 196 IR 365 at [177], [201]-[202]). He told the workers they “should have the choice” and asked “[w]ho is wanting to have the choice of wanting shorts and short sleeves?” He suggested the workers go for it, but expressly said it was “up to you”. He noted that they needed a vote. The workers voted in favour of the plan to wear shorts and/or short sleeves on site, 81 to 1.

168    The exertion of power and influence by Mr Auimatagi in a manner that was disobedient but not unlawful nor unconscionable does not, taking into account the range of action taken and the context surrounding that action, seem disproportionate to the aim of giving the workers more choice in their clothing on site. It was therefore also not illegitimate.

169    In our view grounds 5 and 6A are made out (though only ground 5 is truly operative), and ground 6 is not made out.

170    The effect, however, of ground 5 being made out is that declaration 2 and declaration 3 (in so far as s 343 is relied upon) should be set aside.

171    In the circumstances of the successful grounds of appeal the penalty orders 1 and 2 should be set aside.

Penalty

172    Although it is unnecessary in the circumstances to say anything of the penalties, in case we are wrong in our views as to liability, and in particular for the benefit of Mr Auimatagi, we consider it appropriate to express some brief views as to penalty which would have been more fully elaborated had we not upheld the appeal on liability.

173    Given our views as to the lack of the requisite quality of unconscionability or illegitimacy to lead to a conclusion of coercion, our comments need to be qualified by that recognition.

174    This was Mr Auimatagi’s first contravention. He was, as we have said, representing the views of the men on the site. It can be accepted that he was also pushing his views as to what the Union wanted. He put those views with apparent firmness and clarity, but without the kind of arrogance or entitled impunity that can mark exchanges of this kind. To characterise this as worthy of a penalty so close to the maximum ($7,500 from a maximum of $10,200) was manifestly excessive. Taking into account all the facts and the need for deterrence, if there had been a contravention of s 340 or, if contrary to our views the conduct can be characterised as coercive, we would not have imposed a penalty outside a range of $1,750-$2,000.

175    As to the Union, the imposition of the maximum penalty of $51,000 was manifestly excessive. It is difficult to escape the conclusion that the “recidivism” to which the primary judge referred was not merely a factor in giving a penalty at the high end of an appropriate response to the contravention, but in substance there was punishment for past conduct.

176    The quality or objective seriousness of the contravention (on this hypothesis) fell far short of being worthy of the maximum penalty. It is a fundamental principle, at the core of the judicial power to impose a penalty, that the imposition is for the contravention in question. Prior contraventions, even so many and often so serious as the Union may have engaged in in the past, is a factor which may be taken into account in determining the appropriate quantum for the contravention; it cannot be taken to lead to a penalty that is disproportionate to the gravity of the instant contravention. The maximum is for the worst category of cases. See the points of principle set out in the reasons of Bromwich J (dissenting in the result, but not in point of principle) in Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The Broadway on Ann Case) [2018] FCAFC 126 at [93] and [102] to [110], and see Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The Non-Indemnification Personal Payment Case) [2018] FCAFC 97 at [22].

177    Considering all the circumstances here and the fact that the contravention by the Union was wholly based on Mr Auimatagi’s conduct, we would not impose a penalty outside a range of $10,000 to $12,000.

178    The orders that we would make are:

(1)    The appeal be allowed.

(2)    The declarations and orders of the Federal Circuit Court of Australia made on 8 March 2018 be set aside, and in lieu thereof the application before the Federal Circuit Court of Australia be dismissed.

I certify that the preceding one hundred and seventy-eight (178) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Chief Justice Allsop, and Justices Collier and Rangiah.

Associate:

Dated:    13 November 2018