FEDERAL COURT OF AUSTRALIA

Australian Building and Construction Commissioner v Molina [2020] FCAFC 97

ORDERS

THE COURT ORDERS THAT:

1.    Appeal dismissed.

2.    There be leave to the respondents to apply for any cost orders within 14 days.

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

REASONS FOR JUDGMENT

THE COURT:

1    On Friday 5 August 2016 there was a meeting of about 500 to 550 workers at what was then the construction site for the Perth Stadium in Burswood (Site). The managing contractor for the Site was Multiplex Engineering and Infrastructure Pty Ltd (Multiplex). Civmec Construction and Engineering Pty Ltd (Civmec) was an independent contractor on the Site engaged by Multiplex to complete structural steel works. On the day before the meeting there had been a fatality on a Multiplex building site in Canberra.

2    Mr McLaughlin, a representative of Multiplex, commenced the meeting. He told those present about the fatality and spoke of the importance of safety. He invited everyone to participate in a minute's silence to acknowledge the passing of the worker. A number of people addressed the meeting encouraging a vote to leave the Site as a sign of respect. Mr Molina, an official with the Construction, Forestry, Maritime, Mining and Energy Union (Union), proposed that all the workers at the site should walk off the job as 'a sign of respect for the fallen worker'. There was a vote by a show of hands and Mr Molina proclaimed the result as a vote to leave the Site.

3    At the end of the meeting, Mr McLaughlin said that the Site was open and operational. Nevertheless, in the next half hour, about 30% of the workers progressively left the Site.

4    Not long after the meeting, Mr Buckie, a representative of Civmec, gathered and spoke separately to Civmec workers on the Site. About 75% of them remained on the Site at that stage. After that, Mr Buckie was approached by Mr Molina. He said to Mr Buckie 'You need to send your guys home. Have some respect, send your guys home'. Mr Buckie responded by saying that Mr Molina knew he could not do that. Mr Molina then said 'If you don't send your guys home, you can expect a picket line on Monday - if you send your guys back up to work'. Mr Buckie then walked away.

5    Mr Buckie did not take the conversation personally and did not get upset about the conversation. He was not threatened or concerned by what had been said and he continued to keep his workers on the Site for another two hours or so. Eventually, the Civmec workers left the Site because crane drivers were not working. In the result, workers returned to the Site the next day and there was no picket line arranged at the Site the following Monday.

6    In the above circumstances, proceedings were brought by the Australian Building & Construction Commissioner (ABCC) against Mr Molina and the Union alleging two contraventions under the Fair Work Act 2009 (Cth), namely that:

(1)    contrary to s 346(b), they threatened to take adverse action against Civmec (being arranging a picket line at the Stadium site) because Civmec did not comply with a lawful request by the Union (being to send its workers home as a sign of respect) (adverse action claim); and

(2)    contrary to s 348, they threatened to take action against Civmec (being arranging a picket line at the Stadium site) with intent to coerce Civmec to comply with a lawful request by the Union (being to send its workers home as a sign of respect) (coercion claim).

7    The primary judge found that there had been a threat to put a picket line in place, but determined there had been no threat of adverse action in contravention of s 346 because it had not been proved that there could have been prejudice to Civmec if there had been a picket line. The primary judge also found that intent to coerce had not been established and for that reason there was no contravention of s 348. In reaching the latter conclusion the primary judge found that the statutory presumption expressed in s 361 of the Fair Work Act (to the effect that action alleged to be taken with a particular intent was presumed to be taken with that intent unless proved otherwise) did not apply.

8    As a result, the proceedings were dismissed. The ABCC now brings an appeal.

The issues in the appeal

9    In the appeal, the ABCC raises three issues (including an alternative argument as to the third). A significant part of the answer raised by the respondents to the appeal is that the ABCC now seeks to depart from the way it presented its case to the primary judge. The competing positions of the parties on the three issues are as follows.

10    First, on the adverse action claim, the ABCC says that the primary judge erred by requiring it to establish objectively that the threat, if implemented, would have had the effect of prejudicing Civmec. The ABCC says that the correct approach was to ask whether prejudice to Civmec was threatened by what was said. It says that if that approach had been adopted then, on the findings of the primary judge, the contravention of s 346 was established.

11    As to the first issue, the respondents say that the primary judge simply dealt with the claim of alleged adverse action in the manner in which it was advanced by the ABCC. It says that the case that the ABCC now seeks to advance on appeal was not put below. Further, it says that the relevant prejudice to Civmec was a matter of fact that had to be proved by the ABCC, relying on Auimatagi v Australian Building and Construction Commissioner [2018] FCAFC 191; (2018) 267 FCR 268 at [109] (Allsop CJ, Collier and Rangiah JJ).

12    The second issue concerns the coercion claim. The ABCC says that the statutory presumption in s 361 applies and the primary judge erred by finding it did not apply. The ABCC says that if the presumption applies then the contravention of s 361 was established because the ABCC's version of events was accepted and the burden imposed by s 361 was not discharged by Mr Molina or the Union.

13    The respondents say that the statutory presumption does not apply where the alleged coercion is by threat and the primary judge was correct to approach the matter in that way.

14    The third issue also concerns the coercion claim. The ABCC says that on the proper construction of s 348 there is no requirement that the coercion must negate any choice by means of an action that is unlawful, illegitimate or unconscionable and the many authorities to that effect are wrong. It says that if the primary judge had applied what it contends to be the proper approach then the contravention of s 348 was established on the findings by the primary judge. It accepts that it ran the case before the primary judge on the basis that there was a requirement that coercion involves negating any choice by an action that is unlawful, illegitimate or unconscionable. However, it says that there is no respect in which the case below might have been run differently if that requirement did not apply. In the alternative, the ABCC says that if the coercion must be by action that is unlawful, illegitimate or unconscionable then the primary judge erred in not finding that to be the case.

15    As to the third issue, the respondents say that the finding by the primary judge that there was no high degree of compulsion effected by the threat to expect a picket on Monday was correctly made and on any view of the law that factual finding means that the coercion claim must fail. They also say that as the ABCC conducted its case before the primary judge on the basis of the established law to the effect that coercion is conduct by the alleged coercer that negates any choice by the party said to have been coerced by means that are unlawful, illegitimate or unconscionable, the ABCC cannot now depart from that case on appeal. It says that the approach that has been adopted up until now as to what is required to establish coercion under the statutory provision is the correct approach.

The first issue: Threat of adverse action

The proper construction of the relevant provisions

16    Section 346 provides, relevantly for present purposes, that a person 'must not take adverse action against another person because the other person … does not engage … in industrial activity'. The meaning of the phrase 'engages in industrial activity' is defined in s 347. Amongst other things, it is defined to include an instance where a person does not comply with a lawful request made by an industrial association.

17    So, a person must not take adverse action against another person because that person does not comply with a lawful request made by an industrial association.

18    The term 'adverse action' is defined in s 342. The way in which s 342 is expressed is to define in a table the conduct that will involve taking adverse action. The table specifies both a category of persons and a type of action. Therefore, the table describes conduct which, if undertaken by a particular type of person, would be adverse action. It includes action by an industrial association or an officer of the industrial association 'that has the effect, directly or indirectly, of prejudicing [an] independent contractor in relation to a contract for services'.

19    Then, by s 342(2), the operation of the table is expanded to include 'threatening to take action covered by the table' and 'organising such action'.

20    Applying s 342(2) to the table, the relevant adverse action for present purposes is threatening to take action that has the effect, directly or indirectly, of prejudicing an independent contractor in relation to a contract for services. A grammatical dislocation arises from this form of legislative provision. Whereas, the table describes action that has occurred, s 342(2) expands the table to include a threat to take that action. As a result, where the table describes conduct by reference to its actual effect (relevantly for present purposes, prejudice to an independent contractor), an issue arises as to how the provision is to apply in a case where there is a threat to take that action.

21    The expansion effected by s 342(2) would be meaningless if the threat had to be carried out with the requisite effect before there was adverse action. It would simply add an additional requirement to conduct that was already a contravention. Therefore, s 342(2) impliedly provides for the provisions in the table contained in s 342 to be read in a way that requires some form of connection between the threat and its prospective effect at the time the threat is made. There appear to be three possibilities as to how that evident intent might be achieved through the interpretation of the language used.

22    First, a threat to take action will be adverse action if it is a threat to bring about the effect of prejudicing an independent contractor in relation to a contract for services. On such an approach, the effect must form part of that which is threatened.

23    Second, a threat to take action will be adverse action if it is of such a kind that were it to be carried into effect it would have the consequence of prejudicing an independent contractor in relation to a contract for services. On such an approach, the required effect may not be threatened but there will be a contravention if the nature of the threat is such that the effect will result were the threatened action to occur. If that were the way the provision operated then it would be necessary to consider what will often be an hypothetical either because the threat has the desired effect and it does not need to be carried out or the threat is ineffective but, for some reason, the threat is not implemented. Further, on the second construction, issues may arise as to the degree of likelihood of the threatened conduct having the required effect that is sufficient to establish a contravention.

24    The third possibility is that a threat will be adverse action if it is intended to have the consequence of prejudicing an independent contractor in relation to a contract for services. On such an approach the party making the threat must be shown to have intended the effect. This third alternative can be readily discounted because it sits inconsistently with the ordinary meaning of a threat. The expression of an intention to do harm is a threat: see the review of the authorities by Bromberg J in Construction, Forestry, Mining and Energy Union v State of Victoria [2013] FCA 445 at [221]-[226] (an analysis the correctness of which was not in issue on appeal: State of Victoria v Construction, Forestry, Mining and Energy Union [2013] FCAFC 160; (2013) 218 FCR 172). A threat, is conduct which, viewed objectively, will induce a belief that it will be carried into effect: R v Leece (1995) 78 A Crim R 531 (a case concerned with a threat to kill). The threat may be implied; as in the case of a statement such as 'I know where you live'. Further, the person making the threat may have no intention of carrying it into effect yet the words may induce a belief that the threatened conduct will occur and indeed the words may be communicated for that purpose. By proscribing a threat as a separate contravention, the legislature is manifesting an intention to proscribe conduct irrespective of whether it is carried into effect, or subjectively intended to be carried into effect by the person making the threat. A hollow threat may be as effective as a threat made with the intention of carrying it out: CFMEU v State of Victoria at [226].

25    Therefore, the feasible alternative constructions appear to be the first and the second. In many instances, the distinction between them may not be of great significance because a threat is likely to be made with a particular consequence being both part of the threat (expressly or impliedly) and plainly in view. However, the second alternative would open up the possibility that an effect that was not within the purview of the threatening party might give rise to a contravention. It would attribute to the threatening party a responsibility for likely effects that may not have been in the party's contemplation when making the threat (and in that sense were not threatened by that party). Such a construction would be inconsistent with the ordinary meaning of a threat which is to engender fear by conduct that, viewed objectively, conveys an intention to do something that would be harmful from the perspective of the person being threatened. In ordinary parlance, a threat identifies the harm that is threatened.

26    For those reasons, the first construction, being the construction contended for by the ABCC in this appeal, is to be preferred.

Adverse action against another person

27    Where the adverse action that is alleged to have occurred is a threat to bring about the effect of prejudicing an independent contractor in relation to a contract for services, it is still the case that the threat must also be directed towards someone. The threat may be made against the independent contractor, but s 346 is not confined to such instances. A threat that is made by an industrial association to bring about the effect of prejudicing an independent contractor in relation to a contract for services may be made against a third party, such as a supplier to the independent contractor. The possibility inherent in the terms of the legislation that action threatened against one person in order to effect prejudice for another may amount to adverse action emphasises the importance of being precise about the effect that forms part of the threat.

28    As likely effects flowing to one party from a threat made to another are enough to bring a threat within the definition of adverse action, if those effects did not need to be part of the threat then there would be considerable potential for outcomes that were not contemplated by the party making the threat to become a basis upon which liability would be imposed. Possible eventualities could expand considerably the operation of the provision. Such an outcome appears unlikely to have been intended as part of a law regulating the making of threats as part of industrial activity. It would expand liability to encompass outcomes beyond those contemplated by the person whose conduct was being regulated. This is further reason why the first construction is to be preferred.

The nature of the case of adverse action advanced by the ABCC before the primary judge

29    Nevertheless, before the primary judge, the case advanced by the ABCC was not a case based upon the first construction view of the way the adverse action provisions apply to threats. The ABCC did not claim that the threat made by Mr Molina was a threat to bring about harm to Civmec in relation to a contract for services. Rather, as we will explain, the case alleged was put in terms of the second alternative construction as described above.

30    The case alleged against the Union was consistently pleaded and put in a very particular way. The statement of claim set out the facts and then alleged that Mr Molina's statement: 'If you send your men back out to site expect a picket line on Monday' was 'a threat to arrange, promote or otherwise facilitate a picket line of the Site on Monday' (defined as the 'Threat'). Significantly, there was no plea that the Threat included a threat to effect prejudice to Civmec in relation to a contract for services. There was no threatened effect pleaded at all.

31    It was then alleged that had Mr Molina taken the threatened action, Civmec employees would have been restricted or prevented from entering the Site to perform work on the Monday and Civmec would have been restricted or prevented from performing work under its contract with Multiplex (para 23). It was alleged that the Threat was adverse action under s 342(2) as it would have directly or indirectly prejudiced Civmec 'in the Multiplex Contract' by interfering with its schedule for work to be performed under the contract and causing Civmec additional costs in completing the work under the contract.

32    Significantly, the case as pleaded did not allege the effect on the Multiplex Contract as being conveyed by the Threat as alleged. It simply alleged what was said and then alleged that to state those words was adverse action because of the effect it would have for Civmec in performing its contract with Multiplex if there was a picket line at the Site on the following Monday. It specifically alleged that the alleged Threat, if carried into effect, would have restricted or prevented access to the Site on the Monday.

33    The defence raised no affirmative case in answer. It denied the making of the Threat and did not admit the alleged consequences if the Threat, as alleged, had been carried into effect.

34    In its closing submissions to the primary judge, the ABCC couched the legal issues as to the claim of adverse action contrary to s 342 in the following terms (stated as the third and fourth issues):

(1)    Were the words of Mr Molina a threat to arrange, promote or otherwise facilitate or take part in a picket line of the Site on Monday?

(2)    What would have been the effect of the picket Mr Molina threatened?

35    As to the alleged threat, it was submitted that by speaking the alleged words to the manager of Civmec, Mr Molina as an officer of the Union was making a threat to picket the Site and 'the nature of the threat is clear from the words used'.

36    As to the effect, it was submitted there 'would be a threat of adverse action if the picket would have the effect, directly or indirectly, of prejudicing the independent contractor in relation to a contract for services'. This was said to raise two questions: (a) what kind of picket was threatened; and (b) would that picket have had the requisite prejudicial effect. To present the argument in that way was to reinforce the nature of the case being put by the ABCC as adopting the second of the three constructions of s 346 outlined above. Rather than claim that the threat itself was to prejudice Civmec in relation to the Multiplex Contract, instead the case advanced was that the threat made was of a blockading picket and then to rely upon the alleged effect if the threat had been carried out as the basis for establishing liability (irrespective of whether that outcome had been threatened by Mr Molina). As a result, on the case as pleaded and run by the ABCC, the liability of the respondents did not turn on whether they threatened prejudice to Civmec, but rather on whether the threat of a picket, if implemented, would have a prejudicial effect.

37    In that context, the ABCC submitted to the primary judge that '[t]he Court may infer that a picket of the kind threatened would have prejudiced Civmec in relation to its contract with Multiplex by disrupting Civmec's capacity to carry out the services it was contracted to provide to Multiplex'. This way of putting the case invited a very different inquiry to that which would have been undertaken if it had been alleged that the content of the threat was to cause the effect of disrupting Civmec's performance of the Multiplex contract. It invited the Court to evaluate the likely consequence if, in fact, a picket had occurred on Monday. As there was no specific allegation concerning the nature of the picket that was threatened or its duration (beyond the allegation that it was said that it should be expected on Monday) it was a claim burdened with uncertainties as to precisely what was alleged to be the consequence of the threat.

The reasoning of the primary judge

38    The primary judge dealt with the case in the manner in which it was put by the ABCC. Her Honour reasoned that the threat as alleged had been conveyed. It was a threat to put a picket in place on Monday if Civmec did not send its workers home: at [155]. Then, consistently with the way the case was argued, her Honour posed the further question: 'whether the picket, had it been carried out, was something by which Civmec would have been directly or indirectly prejudiced': at [156]. As invited by the ABCC, that inquiry involved a consideration of what sort of picket might have been established and what the prejudicial effect would have been if a picket of that kind had been established. Her Honour found that a prejudicial effect of the kind alleged had not been established: at [157]-[163]. In doing so, her Honour dealt with the case as presented. That case did not involve any claim that there was a threat of a blockading picket or a threat to affect the ability of Civmec to perform its contract with Multiplex.

ABCC should be confined to its case before the primary judge

39    If the case advanced before the primary judge had been that the threat was not just of a picket but of a picket with prejudicial effect because it would cause workers not to enter the Site with consequences for the performance of Civmec's contract with Multiplex, then different forensic considerations would have arisen.

40    It would have been important to consider the nature of the picket that was threatened and its duration. It would have been relevant to consider what was implicit in any threat made, particularly as to the threatened effect. That evaluation would have required a careful evaluation of the context. The fact that no further steps appear to have been taken by Mr Buckie to encourage workers to leave the site may have been relevant in forming a view as to precisely what sort of action was threatened by Mr Molina. Another matter of context may have been the absence of any industrial action by the Union at the Site, a matter to which reference was made in the course of the hearing of the appeal.

41    Also, the evidence to the effect that Mr Buckie was not concerned by the threat may have assumed significance. Although it was not necessary for a threat to be subjectively considered to be threatening by the person to whom it was directed, the evidence of Mr Buckie's response may have assumed significance in drawing a conclusion as to whether the words as spoken were an expression of frustration or manifested a threat to prejudice Civmec's performance of the Multiplex Contract.

42    These were matters that were dealt with at the trial, but were not confronted through the lens the ABCC now proposes in its reformulation of its case. They are matters that would have assumed different forensic significance if they had been said to be relevant to a threatened effect. The ABCC would have been required to state with particularity the effect that was alleged to have been threatened and the matters relied upon to support that claim.

43    For at least those reasons, the ABCC should not be allowed to advance a new and different case on appeal. So, even though the construction of the relevant provisions contended for by the ABCC is one that should be accepted, it is not a basis for demonstrating error in the decision of the primary judge who dealt with the case that was put below.

Auimatagi

44    Given the way in which the ABCC ran its case before the primary judge, it was necessary for her Honour to consider what would have been the effect of the threatened picket if it had been implemented. Couched in those terms, the issue was similar to that which arises in cases like Auimatagi where there is actual action (not just a threat).

45    If indeed the ABCC had based its case on the first construction then it would have been wrong to consider the likely actual effect if the threat was implemented. The only issue would have been what was conveyed by the threat. In particular, what sort of picket and what prejudicial effect was threatened. If the case had been put in that way then the approach in Auimatagi would not be applicable because it was a case concerned with what was required to be proved where the claim was that there had been actual adverse action taken which in fact had the requisite effect. However, because of the particular way in which the ABCC advanced its case before the primary judge, no error has been demonstrated in the application of Auimatagi.

The second issue: Coercion and the statutory presumption

46    Section 348 of the Fair Work Act provides:

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

47    Division 7 of Part 3-1 contains ancillary provisions that apply generally to the Part. A number of them are expressed in terms that would facilitate proof of a contravention of the earlier protection provisions. In particular, s 361(1) provides:

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.

48    Provisions of the kind expressed in s 361(1) result in allegations standing as sufficient proof of the facts as alleged unless there is proof to the contrary by the person against whom the allegation is made: Davids Distribution Pty Ltd v National Union of Workers [1999] FCA 1108; (1999) 91 FCR 463 at 501. They do not reverse the onus of proof because the onus remains on the party alleging that there has been a contravention to establish the ingredients of the contravention to the requisite standard: R v Hush; Ex parte Devanny (1932) 48 CLR 487. However, they tend to have that effect because the fact as alleged will be taken to be proven unless the person against whom the allegation is made 'proves otherwise'. So if the fact, of itself, is sufficient to establish an ingredient, the consequence will be that the ingredient is established unless the responding party proves the contrary.

49    In the present case, the ABCC alleged that the threat to establish a picket on Monday was made 'with intent to negate Civmec's choice whether to send its employees home and in doing so, coerce Civmec' to comply with the request that it do so. The intent alleged was to negate the choice of Civmec about whether to send its employees home. Making a threat to arrange a picket line on Monday with the intent alleged was said to amount to coercion for the purposes of establishing a contravention of s 348.

50    In a number of decisions it has been held that s 361 does not apply to allegations that a person has threatened to take action with intent to coerce. Those cases were applied by the primary judge. However, there are other cases where judges of this Court have reached the opposing view. The ABCC claims those authorities should have been preferred by the primary judge. It will be necessary to consider those authorities.

51    However, before doing so, there is an important consequence of the manner in which s 361(1) operates that has potential significance for the appeal. Even assuming s 361(1) applies, the ABCC could not simply allege that the ingredient of s 348 was established, namely that the threat concerning the picket had been made with 'intent to coerce'. Rather, it was required to make a factual allegation as to the particular intent of Mr Molina: Australian Building and Construction Commissioner v Hall [2018] FCAFC 83; (2018) 261 FCR 347 at [13]-[26] (Tracey, Reeves and Bromwich JJ) as applied in Auimatagi at [134]-[142]. Further, it was required to establish each ingredient of the contravention. In other words, s 361(1) did not effect a general reversal of the onus of proof.

52    Importantly, before the primary judge the ABCC accepted that intent to coerce has two elements, namely an intent to negate choice (first element) by the use of unlawful, illegitimate or unconscionable conduct (second element). An intent to negate choice by entirely lawful and appropriate means is not coercion. In Hall (as applied in Auimatagi) it was held that the intent aspect applies only to the negation of choice element and the other element, that the coercion be by the use of unlawful, illegitimate or unconscionable conduct, is to be assessed objectively. Therefore, the requirement was to plead the particular facts alleged to establish the intent to negate choice. The other objective element is not a matter that can be established by resort to s 361(1) (assuming it applies).

53    The course followed by the ABCC in pleading its case below reflected the above distinctions. So, even if the presumption applied to a case where there was alleged to be coercion by a threat of action, the separate objective element was required to be established (unless, as now contended by the ABCC on appeal as part of the third issue, the objective element does not apply). So, even if the ABCC is correct as to the application of the presumption, it will also need to succeed on the third issue in the appeal in order to demonstrate error as to the decision by the primary judge to dismiss the claim of contravention of s 348.

54    Before turning to the cases, there are a number of aspects of the language used in s 361 and the coercion provisions within Part 3-1 that should be noted.

The language of s 361 and the coercion provisions

55    Considering only the language of the relevant provisions (s 361 and s 348) without regard to broader contextual matters, four observations may be made.

56    First, s 361 refers to allegations concerning the reason for or intent behind the taking of action. The presumption applies to the reason for or intent with which 'the action was, or is being, taken'. In ordinary parlance, the word action would encompass the making of a threat. To threaten is an action.

57    Second, s 361 refers to allegations that a person 'took, or is taking, action' (emphasis added). It is only in cases where allegations of that kind are made that 'it is presumed that the action was, or is being, taken for that reason or with that intent' unless proven otherwise. The singular focus of s 361 upon 'taking action' might suggest that the provision does not include a threat of action or organising action. In one sense, to make a threat is to take action. In another sense, a threat may be thought to precede the taking of action.

58    Third, s 361 makes no reference to organising or threatening action. It uses action as a singular concept. On the other hand, s 348 is one of three coercion provisions in Part 3-1 (s 343, s 348 and s 355) which refer expressly to the alternatives of action, organising action or threatening to take action. Arguably, the same distinction might be seen in the structure of the adverse action provisions. As has been noted, adverse action is defined by means of the table in s 342(1). Then s 342(2) provides that adverse action includes threatening to take action and organising action. If action itself included those terms then it might be argued that s 342(2) would not be necessary.

59    Fourth, there is no apparent logical reason why the presumption would be confined in a manner that would not apply to organising or threatening action.

The decided cases

60    In Director of Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2015] FCA 1125 (referred to as The Red & Blue Case) Jessup J said at [111]:

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

61    His Honour properly required clear language before a reversal of onus would apply given the civil penalty consequences that could flow from a finding of a contravention of s 355 by applying a presumption of the kind expressed in s 361. It is well established that the process of statutory construction should be approached on the basis that the courts should not impute to the legislature an intention to interfere with fundamental rights and that such an intention must be clearly manifest by unmistakable and unambiguous language: Coco v The Queen [1994] HCA 15; (1994) 179 CLR 427 at 437 (Mason CJ, Brennan, Gaudron and McHugh JJ). Since then, the High Court has affirmed the principle as requiring a departure from fundamental rights to be expressed with irresistible clearness: Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252 at [15] (French CJ, Gummow, Hayne, Crennan and Kiefel JJ). It is a principle that applies with particular keenness where a construction of legislation is advanced that would reverse the fundamental principle that the prosecution must prove guilt: Lee v New South Wales Crime Commission [2013] HCA 39; (2013) 251 CLR 196 at [126] (Crennan J), [171]-[193] (Kiefel J, Hayne and Bell JJ agreeing), [307]-[318] (Gageler and Keane JJ). The required clarity increases the more the rights are fundamental or important: Mann v Paterson Constructions Pty Ltd [2019] HCA 32 at [159] (Nettle, Gordon and Edelman JJ). As stated by Gleeson CJ in Electrolux Home Products Pty Ltd v Australian Workers' Union [2004] HCA 40; (2004) 221 CLR 309 at [21]:

The joint judgment in Coco went on to identify as the rationale for the presumption against modification or abrogation of fundamental rights an assumption that it is highly improbable that Parliament would 'overthrow fundamental principles, infringe rights, or depart from the general system of law' without expressing its intention with 'irresistible clearness'. In R v Home Secretary; Ex parte Pierson, Lord Steyn described the presumption as an aspect of the principle of legality which governs the relations between Parliament, the executive and the courts. The presumption is not merely a common sense guide to what a Parliament in a liberal democracy is likely to have intended; it is a working hypothesis, the existence of which is known both to Parliament and the courts, upon which statutory language will be interpreted. The hypothesis is an aspect of the rule of law.

62    As to the legislative history and extrinsic materials, it is significant that the Explanatory Memorandum for the Bill that became the Fair Work Act contained a number of statements concerning the extent to which provisions that are now included in Part 3-1 were intended to reflect provisions that had been contained in the Workplace Relations Act 1996 (Cth) (WR Act). The Explanatory Memorandum began by stating that Part 3-1 'incorporates and streamlines the following WR Act provisions' and then lists the following (at para 1335):

•    unlawful termination;

•    freedom of association;

•    sham arrangements in relation to independent contractors; and

•    various other specific protections (such as the protection from coercion in relation to making a collective agreement in subsection 400(1) of the WR Act).

63    The Explanatory Memorandum then said that the consolidated protections in Part 3-1 'are intended to rationalise, but not diminish, existing protections. In some cases, providing general, more rationalised protections has expanded their scope' (para 1336). These statements might encompass the ancillary procedural provisions which concern the way in which proceedings may be brought if the protection provisions are not respected. That is to say, it might be said that there was no intention to diminish the extent of protection afforded by the procedural provisions in the WR Act but the rationalisation of provisions might expand their scope. The object of Part 3-1 includes providing effective remedies in the case of contravention (para 1345).

64    As to the provision that became enacted as s 361, the Explanatory Memorandum said (paras 1459-1461):

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

Generally, a civil action places the onus on the complainant to establish on the balance of probabilities that the action complained of was carried out for a particular reason or with a particular intent.

However, subclause 361(1) provides that once a complainant has alleged that a person's actual or threatened action is motivated by a reason or intent that would contravene the relevant provision(s) of Part 3-1, that person has to establish, on the balance of probabilities, that the conduct was not carried out unlawfully. This has been a long-standing feature of the freedom of association and unlawful termination protections and recognises that, in the absence of such a clause, it would often be extremely difficult, if not impossible, for a complainant to establish that a person acted for an unlawful reason.

(emphasis added)

65    Therefore, the terms of the Explanatory Memorandum did appear to contemplate that s 361 would apply to allegations concerning the intent behind threatened action. This intention could only be carried into effect if the language about taking action encompassed the making of a threat. So, it does not appear to be correct to say that the possibility went unmentioned.

66    In any event, the former provision in s 809 of the WR Act applied where allegations were made that the conduct of a person 'was, or is being, carried out for a particular reason or with a particular intent'. It related to 'proceedings under this Division' being applications under s 807 of the WR Act which were concerned with contraventions of civil remedy provisions. Those provisions were defined in s 727. Relevantly, they were provisions declared by the WR Act to be 'civil remedy provisions' a number of which were coercion provisions which, like s 348, applied to threats made with intent to coerce. Because s 809 applied to 'conduct' it applied to instances where a penalty was sought where the contravening conduct was the making of a threat to coerce. Section 400(1) prohibited threatening to engage in or organise any industrial action with intent to coerce another person to agree to an outcome in respect of a collective agreement. Therefore, s 809 applied to an allegation about a threat made with intent to coerce where a penalty was sought for alleged contravention of s 400(1). Other provisions of that kind were s 508(1), s 509(1), s 789(1), s 796, s 797, s 798, s 799, s 800 and s 802. But, some coercion provisions did not include threats; for example s 400(3) and (4).

67    Nor is it the case that the procedural provisions in Part 3-1 were introduced as a simple re-enactment of the former provisions of the WR Act. As a result, save perhaps to resolve an ambiguity in the terms of the Fair Work Act where one alternative is said to offer less protection than under the WR Act, it is difficult to see why close regard to the manner in which the previous legislation operated is appropriate in construing s 361. Still less, by reference to the terms of the WR Act as it stood before the enactment of the substantial reforms implemented to the WR Act by the Workplace Relations Amendment (Work Choices) Act 2005 (Cth).

68    In that context, the issue was whether the use of the 'taking action' language in s 361 raised the possibility that a different approach was taken in the Fair Work Act to that which applied under the WR Act.

69    In Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2015] FCA 1293, White J said at [101]-[105]:

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

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

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

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

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

I observe that s 361 has been applied by this Court in relation to threatened action under s 348 in Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2015] FCA 225 at [264]-[265] (Tracey J) and [Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union (No 2) [2015] FCA 199] at [100] (Mansfield J). It seems however, that the point now raised by the respondents in this case was not raised in either of those cases.

For these reasons, I reject the construction of s 361 for which the respondents contended. As the respondents did not adduce any evidence to the contrary of the Director's allegation, it is to be presumed that Mr Gava and Mr Kalem took their action for the proscribed purpose contained in that allegation.

70    As to the two decisions referred to by White J, the decision of Tracey J in Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2015] FCA 225 concerned a case in which contraventions by conduct that included threats were alleged. However, it appears that the threats alleged were relied upon as evidence of coercive intention rather than as the relevant action: at [23]. The decision of Mansfield J in Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union (No 2) [2015] FCA 199 did concern claims in which it was alleged that there was a threat to organise or take action: at [24]. In that decision it appears to have been accepted without any further consideration that a threat of action was conduct to which the presumption in s 361 would apply: at [99]-[100].

71    A detailed review of the authorities was undertaken in Newton v Australian Postal Corporation (No 2) [2019] FCA 2192 (Bromberg J). The view that an allegation that a person made a threat or organised action is an allegation to which the presumption in s 361 applies was preferred: at [45], [52]. In addition to those authorities where such a view had been expressed (or assumed to be correct), the following matters were identified as supporting that conclusion:

(1)    'Action' is a word of broad application that extends to making a threat organising someone else to do or not to do an act and is used in s 361(1) without qualification (at [46]);

(2)    s 361 serves a beneficial purpose (at [47]);

(3)    the plain purpose of a reverse onus provision such as s 361 is that a person's reason for engaging in conduct lies peculiarly within the knowledge of the actor and that purpose applies equally to instances where the impugned conduct is a threat of action or organising action (at [47]);

(4)    the Explanatory Memorandum supports the proposition that action includes threatened action (at [47]); and

(5)    the phrase 'any action' used in s 355 (being the provision under consideration in The Red & Blue Case) is used to clarify the broad nature of the prohibition not to exclude 'threaten' or 'organise' as a form of action (at [48]).

72    Reliance was also placed upon the approach in proceedings involving Esso Australia Pty Ltd v The Australian Workers' Union [2015] FCA 758: at [50]. The proceedings concerned allegations that the Australian Workers' Union had organised industrial action by its members in circumstances that amounted to contraventions of s 343 and s 348 (amongst other provisions). Section 343 applies to organising or taking action (or threatening to organise or take action) with a particular intention. In dealing with that claim, Jessup J found that whether actions were 'organised or taken' with the requisite intent was a matter that could be proved by the application of the presumption in s 361: Esso Australia at [167]. On appeal, Buchanan J (Siopis J agreeing) proceeded on the basis that s 361 applied to 'Esso's allegation … that the AWU took action against it with intent to coerce it into making an enterprise agreement': Esso Australia Pty Ltd v The Australian Workers' Union [2016] FCAFC 72; (2016) 245 FCR 39 at [171]-[172]. However, it may be noted that, expressed in that way, the decision does not engage directly with the issue that falls for decision in the present appeal.

73    The cases where The Red & Blue Case had been followed were also summarised in Newton in the following way at [51]:

Having said all that, I appreciate that the Red and Blue Case has been followed by a number of authorities, although not necessarily in circumstances where the approach there taken was in contest: Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (The Quest Apartments Case) [2017] FCA 1398 at [70]; Australian Building and Construction Commissioner v O'Connor (No 3) [2018] FCA 43 at [128]; Australian Building and Construction Commissioner v Parker [2017] FCA 564 at [105]-[106]. In Australian Building and Construction Commissioner v Upton (The Gorgon Project Case) [2017] FCA 847 at [119], Barker J did not regard the reasoning in the Red and Blue Case as 'plainly wrong'; Charlesworth J applied this reasoning in McDermott [2018] FCA 1611 at [137]-[147] with which Banks‑Smith J agreed in Australian Building and Construction Commissioner v Molina (No 2) [2019] FCA 1014 at [175]. In Construction, Forestry, Mining and Energy Union v De Martin and Gasparini Pty Ltd (No 2) [2017] FCA 1046 (at [364]) Wigney J expressed reservation about the correctness of the Red and Blue Case but followed it in circumstances where its correctness was not there challenged.

74    As to the above authorities, we note that in Australian Building and Construction Commissioner v Parker [2017] FCA 564 (a decision relied upon by the primary judge), Flick J stated at [105]-[107]:

Some attention has been given to the circumstances in which s 361 operates. According to its terms, s 361 applies where it is alleged that 'a person took, or is taking, action for a particular reason or with a particular intent'. Some provisions of the Fair Work Act do not require proof of any particular reason or intent. Other provisions have an element of intent as but one of the elements which needs to be established in order to make out a contravention. Section 355 is an example. That section contains, as alternatives to the manner in which a contravention may occur, either a 'threat to ... take ... action' or the taking of action 'with intent' to coerce. In such circumstances, s 361 is confined in its operation to 'reversing the onus of proof' to the element of taking action with intent and does not apply to a threat to take action.

[Then after quoting from Jessup J in The Red & Blue Case]

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

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

(original emphasis)

Contextual matters within Part 3-1

75    In a case like the present where s 361 forms part of a group of provisions that are ancillary to the substantive provisions of Part 3-1 it is important to have regard to their surrounding context and the role they perform within that Part.

76    As has been mentioned, Part 3-1 provides for the protection of workplace rights and freedoms, particularly freedom of association and also protection from workplace discrimination. It has detailed provisions as to the scope of application of the protection provisions: s 338. Those provisions define the scope of application using the word 'action' without express reference to threatening or organising action. Section 338(1) provides:

This Part applies to the following action:

(a)    action taken by a constitutionally-covered entity;

(b)    action that affects, is capable of affecting or is taken with intent to affect the activities, functions, relationships or business of a constitutionally-covered entity;

(c)    action that consists of advising, encouraging or inciting, or action taken with intent to coerce, a constitutionally-covered entity:

(i)    to take, or not take, particular action in relation to another person; or

(ii)    to threaten to take, or not take, particular action in relation to another person;

(d)    action taken in a Territory or a Commonwealth place;

(e)    action taken by:

(i)    a trade and commerce employer; or

(ii)    a Territory employer;

that affects, is capable of affecting or is taken with intent to affect an employee of the employer;

(f)    action taken by an employee of:

(i)    a trade and commerce employer; or

(ii)    a Territory employer;

that affects, is capable of affecting or is taken with intent to affect the employee's employer.

77    Significantly, the reference to threatening to take action in s 338(1)(c) is dealing with action that is directed towards a constitutionally-covered entity in order to get that entity to take action or to threaten to take action. That is to say, the references to threatening are not dealing with threat of action by the covered entity. However, there is no other provision that refers expressly to the threatening of action or the organising of action. As conduct of that kind is dealt with expressly in provisions within Part 3-1, plainly it is intended to be covered. Therefore, it appears that within s 338, at least, the reference to 'action' in s 338(1)(a) must encompass threats and organising. Significantly, s 338 is couched in terms of action taken. Therefore, the term 'action taken' when used in s 338 encompasses a threat of action or organising action.

78    Section 340 and s 346 deal with taking adverse action. As has been noted, it is a term that is then defined in s 342 in a way that identifies certain actions set out in a table as adverse action and then expressly includes threatening to take action and organising action. It may be that this was simply a convenient means of identifying what was meant by 'adverse action' in circumstances where 'action' was understood to include threatening and organising. In other words, the structure of the definition of adverse action does not necessarily lead to the conclusion that taking action was considered not to include threatening or organising action.

79    Section 343, s 348 and s 355 deal with coercion. All three provisions use the formulation 'take, or threaten to organise or take, any action … with intent to coerce'.

80    Other provisions prohibit other conduct including exerting undue influence or pressure, misrepresentation, discrimination (because of specified characteristics of a person or the nature of their industrial coverage), dismissal (because of temporary absence because of illness or injury of a prescribed kind) and sham arrangements. Significantly, there are a number of provisions that may give rise to issues as to the reasons behind particular actions. However, there are no provisions other than the coercion provisions that expressly refer to intent.

81    Then there are the ancillary rules. First, s 360 provides that a person takes action for a particular reason if the reasons for the action include that reason. Then, there is the contentious presumption provision in s 361. It applies to allegations of reasons for, or the intent behind, taking action. Section 362 makes it a contravention to advise, encourage or incite, or to take any action with intent to coerce, a second person to take action which if taken for the first person's reasons would contravene a provision of Part 3-1. This is a provision that may apply to any of the protection provisions in Part 3-1. Section 363 deals with an industrial association's responsibility for action taken by committees, officers, agents and members of the industrial association. Section 364 deals with liability for contraventions by unincorporated industrial associations and actions by their members, officers or agents who took part in the relevant action with the relevant state of mind. If the references to taking action and action in those provisions does not include threats of action or organising action then those provisions could not be called in aid to facilitate proof where allegations are made of organising or threatening action. There is no evident reason for any such distinction.

82    Save for the reference to intent to coerce in s 361, all of the provisions have a field of operation even if they do not apply to the coercion provisions. However, the fact that the coercion provisions are the only protection provisions in Part 3-1 that require a specific intent is a significant contextual matter.

Applying the principles of statutory construction

83    The application of established rules of construction so as to give effect in an objective way to the manifestation of the intention of the legislature through the particular words used is an important expression of the constitutional relationship between the arms of government: Zheng v Cai [2009] HCA 52; (2009) 239 CLR 446 at [28]. The task involves giving the language used its contextual meaning: SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362 at [14]. Matters of context cannot take the Court beyond the text. Further, for reasons already given, of significance in this case is the requirement as part of the established rules of construction that Parliament must speak plainly before altering fundamental principles. Where Parliament alters the accusatorial nature of a process by which penalties may be imposed it must do so explicitly and with clarity. This aspect of the rule of law, offers an important protection which requires close scrutiny of the language in this case.

84    It may be accepted that the required clarity in language exists insofar as s 361 gives rise to a presumption that the required reason or intent is established where there is an allegation of taking action for a specified reason or with a specified intent. Further, in this area of the law provisions that have that effect have existed for a considerable period of time. As noted by French CJ and Crennan J in Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32; (2012) 248 CLR 500 at [49]-[51] a 'statutory presumption and correlative onus of the kind now found in s 361 of the Fair Work Act can also be found in earlier provisions', its purpose being to throw onto a defendant the onus of proving that which is peculiarly within the defendant's own knowledge.

85    Therefore, this is not an instance where there is uncertainty as to whether Parliament was altering fundamental principles. It has made that intention plain. Further, in the Explanatory Memorandum it has referred to s 361 as applying to cases where the relevant action is threatened action. If there be uncertainty, it is as to the scope of the application of s 361.

86    Next, in considering whether there is uncertainty it is important to understand that the whole of Part 3-1 is cast in terms of taking action. For reasons already given it is plain that in defining the scope of the Part, the expression taking action is used to encompass threats of action and organising action. In other words, Part 3-1 begins with provisions that use taking action in that broader sense.

87    Also, the form of the coercion provisions in Part 3-1 reflects the language used in the former coercion provisions in the WR Act which were replaced by the Fair Work Act. When provisions in that form came to be introduced in Part 3-1, their use of the formulation 'take, or threaten to organise or take, any action against another person with intent to coerce' came to be expressed within a structure that used the word 'action' to define the scope of all provisions. The former provision, s 809 of the WR Act, applied to all 'conduct'. The adjustment of that language in s 361 to use the word 'action' instead of 'conduct' is explicable by the new language used in Part 3-1. This contextual matter provides an important explanation for the use of the language to be found in s 348 on the one hand and s 361 on the other. It is a context that supports construing s 361 as applying to cases where there is a threat made with intent to coerce.

88    This contextual aspect was emphasised by White J in Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2015] FCA 1293. There is no evident reason why the scope of the provision would have been reduced so as not to apply to threats or organising having regard to the overall nature of Part 3-1 of the Fair Work Act as giving effect to the extent of protections afforded by the WR Act. Much more likely is that the language of the equivalent coercion provisions in the WR Act (that included coercion by threats of action or organising action) was carried through into the Fair Work Act on the basis that s 361 (like its statutory predecessor) would apply to all such conduct.

89    Further, there is much to be said for the reasoning that the rationale of the reverse onus provision applies equally to the case where there is a threat of action or organising action. When pressed, counsel for the respondents articulated no such rationale.

90    Possibly it may be argued that the reversal of the onus was not required when it came to the reason for or intent behind threatening or organising because such matters may be more readily inferred by reason of the nature of the conduct that will be undertaken in such cases compared to where action is simply taken without any communication. In order for a threat to take effect or for action to be organised the party engaging in the action will have to undertake dealings with other parties of a kind that are likely to manifest the reasons or intent behind the conduct. Whereas, direct action does not require the involvement of others in order for it to be undertaken. Therefore, it is perhaps more likely that a person's reason for engaging in action that does not involve a threat or organising will lie peculiarly within the knowledge of the actor. However, it is still likely to be difficult for those responsible for ensuring compliance with the statutory provisions to be able to prove such matters without the cooperation of those other parties. In the end the forensic task will require proving a subjective intention and the difficulties in doing so may be expected to undermine the practical effect of the protections expressed in Part 3-1.

91    Once the language in s 361 is approached in the above context, the infelicities involved in the language give rise to much less ambiguity than might be thought to arise from a consideration of the statutory language without regard to context. On balance, when considering the text of the provision in context, the required clarity for the presumption expressed in s 361 to apply to allegations of threats of action or organising action is demonstrated.

92    Relatedly, s 348 (and other provisions such s 343 and s 355) create a single penalty provision which can be breached in a number of different ways (by organising action, threatening to organise action, taking action and threatening to take action). It appears that in each case, it is the same offence. In those circumstances, it is unlikely that Parliament intended the regulator to bear the onus of proving the intent of the alleged contravenor in some instances whilst providing for the intent to be presumed to be proven unless the alleged contravenor proves otherwise in other instances. It would be most unusual if the burden of proof differed depending upon different formulations of the same offence.

93    Therefore, with respect to those judges who have taken a different view, we are persuaded that the presumption in s 361 applies in a case like the present. It follows that the matters raised by issue 2 should be determined in favour of the ABCC.

The third issue: The nature of the conduct and intent required to establish coercion

The case advanced by the ABCC

94    The coercion case advanced by the ABCC before the primary judge took a similar form to the adverse action case. In its closing submissions, the ABCC used the term 'Threat' to refer to a threat to arrange, promote or take part in a picket line of the Site on Monday being a threat said to have been conveyed by the words spoken by Mr Molina to Mr Buckie when considered in their context. The ABCC identified two matters that it must establish to show that Mr Molina made such a Threat with intent to coerce Civmec, namely:

(a)    the Threat was intended to exert pressure which, in a practical sense, negates choice; and

(b)    the pressure involved conduct that is unlawful, illegitimate, or unconscionable.

95    Framed in that way, the case reflected established authority concerning what was required in order to demonstrate an intent to coerce, described as 'settled' in Auimatagi at [133] (Allsop CJ, Collier and Rangiah JJ) and State of Victoria v Construction, Forestry, Mining and Energy Union [2013] FCAFC 160; (2013) 218 FCR 172. It is an approach that has been applied to s 348: Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2015] FCA 225 at [228]-[232] (Tracey J); see also its application to the intent to coerce in s 343 and s 355: Hall at [25]-[26].

96    It was also recognised by the ABCC before the primary judge that it was required to demonstrate 'a high degree of compulsion, at least in a practical sense, and not some lesser form of pressure by which a person is left with a realistic choice as to whether or not to comply' being the oft-quoted formulation stated by Weinberg J in National Tertiary Education Industry Union v Commonwealth of Australia [2002] FCA 441; (2002) 117 FCR 114 at [103]. The requirement for a high degree of compulsion is manifest in the settled law requiring an element of unlawfulness, illegitimacy or unconscionability before intent to coerce is demonstrated.

Findings of the primary judge concerning Mr Molina's intention

97    Before the primary judge, the threat of the picket line on Monday was said to exert the requisite degree of compulsion because it had been stated after what had occurred at the meeting on the Site where the vote was taken and was spoken to Mr Buckie who was the person responsible for Civmec personnel on the Site. Reliance was also placed upon a submission to the effect that Mr Molina had given untruthful evidence concerning the making of the Threat, rather than alleging that it had been made without a compulsive intention.

98    As to the latter submission, the primary judge made the following findings at [188]:

However, Mr Molina's case was premised on a positive case that he said something else, a case I have rejected. Neither Mr Molina's oral evidence of what he meant by a 'picket' nor his statement as to what he intended by reference to a picket as referred to in the affidavit evidence assist in those circumstances. There was no express evidence in support of any alternative case.

99    In those circumstances, her Honour found that she was left to infer what Mr Molina intended by his threat that Mr Buckie should expect a picket line: at [190]. After considering the evidence, her Honour found that the inferences that were available to be drawn on the evidence were an insufficient basis from which to conclude that there was an intent to coerce: at [190]-[199]. For reasons given in relation to issue 2, the above reasoning cannot stand to support the conclusion that intent to negate choice had not been established. Rather, by operation of s 361, a presumption arose to the effect that the threat of the picket line was made with the intent to negate choice by Civmec as to whether to send its employees home.

The respondents have not proven otherwise as to Mr Molina's intent

100    The respondents contended that if the presumption applied then they had proved that Mr Molina had no such intent. However, for the following reasons, that submission should not be accepted.

101    Mr Molina's general evidence as to intent was not accepted by the primary judge and he gave no evidence as to his specific intent in making the threat because his case was that he did not make the threat as alleged. The primary judge found that Mr Molina's general evidence to the effect that he did not intend to coerce Mr Buckie and Civmec was insufficient to prove that he did not have the presumed intent. Indeed, the primary judge rejected that evidence because of the nature of the case that was advanced by him: at [187]-[188]. No challenge is made to those findings.

102    Otherwise, the primary judge's findings were to the effect that the ABCC had not demonstrated that Mr Molina had the requisite intent. The findings did not rise to provide a sufficient foundation for an affirmative finding as to Mr Molina's intent in circumstances where he had to prove a case contrary to the allegation concerning his intent. Therefore, it has not been demonstrated that he proved otherwise as required by s 361. By operation of the presumption, Mr Molina was shown to have the intent to negate any choice by Civmec.

The primary judge's finding as to 'unlawful, illegitimate or unconscionable'

103    The primary judge found it unnecessary to consider whether the threat was of conduct that was unlawful, illegitimate or unconscionable: at [200]. Nevertheless, the primary judge did deal with that aspect. Her Honour found that as the ABCC relied upon the adverse action claim to demonstrate illegality the fact that the ABCC had not succeeded on that aspect meant the requirement had not been satisfied in that way: at [203]. For reasons that have been given, that remains the position on appeal.

ABCC's application for leave to advance a new case on appeal

104    On appeal, the ABCC sought to depart from the case it had run before the primary judge concerning intent to coerce. It accepted, as it must, that leave is required to do so. It pointed out that s 348 simply requires that there be an 'intent to coerce'. Section 348 applied, it was submitted, to a threat to take action against another person 'with intent to coerce' and the existing law had added a gloss onto the statutory words of a kind that was not supported by the statutory language. The word 'coerce' was said to mean 'enforce obedience' and did not require a negation of choice which was said to require proof of conduct that was 'at the extreme end' of the range of conduct that might amount to coercion. Nor did it require, so it was submitted, that the conduct involve the use of unlawful, illegitimate or unconscionable pressure. Plainly, the case the ABCC sought to run on appeal contended for a lesser standard as to what may amount to coercion than it had put to the primary judge.

105    The respondents objected to that course with justification. To apply a materially different standard to the task of evaluating whether intention had been established would give rise to different forensic choices to be made in the conduct of the defence of the case brought by the ABCC. Decisions are likely to have been made affected by the fact that the ABCC had to meet the higher standard. Ultimately, the respondents could approach the case before the primary judge on the basis that if the conduct was not shown to involve the use of unlawful, illegitimate or unconscionable pressure then the alleged contravention would not be established.

106    If the lesser standard contended for by the ABCC had been put at trial then there would have been a singular focus upon whether the alleged conduct was taken with the intent to enforce obedience. The precise respects in which the case was affected may not be able to be identified given that it involves the consideration of an hypothetical. It is unlikely, given the fundamental shift that would have been involved, that any actual consideration was given to how such a case might have been met if it had been the way the case had been framed by the ABCC.

107    Counsel for the respondents did not descend into particularity as to any particular respect in which the cross-examination would have been different. However, to require such particulars would require counsel to conceive of a case that was never contemplated below and then conceive of the particular forensic choices that may have been made in the approach to cross-examination or other forensic inquiry. Therefore, in the particular circumstances, counsel should not be criticised for not pointing to particular matters beyond highlighting the fundamental difference between the case as run and now run and the fact that the difference had important forensic consequences.

108    Further, this is not an instance where a new point in addition to those run at trial is sought to be raised. Rather, the ABCC seeks to completely recast its case as to what is required in order to demonstrate an intention to coerce. In such circumstances, if the new matter raised could by any possibility have been met by further evidence below then the point cannot be taken: Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1 at 7-8. However, that is not the end of the matter. In Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833; (2001) 117 FCR 424, Allsop J as the Chief Justice then was (Drummond and Mansfield JJ agreeing), at [38] listed the matters to be considered in deciding whether to grant leave even if the Court was satisfied that no further evidence might have been adduced before the primary judge:

First, the finality of litigation and the importance of parties being bound to the cases they make at trial should never be overlooked ... Secondly, the difficulty of the party against whom the new point is raised reaching back in time to assess, necessarily hypothetically, how the conduct of the trial would, or may, have been different should not be underestimated. Such judgments or assessments can require re-agitation or reconsideration of decisions taken before and at trial (which may be privileged) and which can be very difficult to assess and articulate after the event. The entitlement of a party to the benefit of the opportunity of informed and reasonably contemporaneous assessment of relevant evidence, or inquiry, should be respected. Thirdly, the potential unfairness on counsel conducting an appeal who will be expected to assist the court in respect of the prejudice, or lack of it, to his or her client in the face of such matters being raised should not lightly be brushed aside. Even when counsel cannot positively say that something in particular would have been done differently, that does not mean that the court will be satisfied of a lack of prejudice. The possibility of evidence or the possibility that the hearing would have taken a different course, if not fanciful, may well suffice to deny raising of the new point. These considerations should not be seen as not requiring counsel frankly and candidly to say that the trial would not have been conducted differently if he or she is of that view. Fourthly, and in conclusion, before any new point be allowed, the court should be able to be satisfied that the raising of it could work no injustice on the other party and is otherwise in the interests of justice.

(citations omitted).

109    Where, as here, the nature of the proceedings concerned a claim that there had been a contravention which, if established would lead to a penalty, the above considerations carry much force. There is injustice if a party facing proceedings of that kind brought by a regulator such as the ABCC has to face the prospect on appeal of the ABCC changing its case in a fundamental respect (and directly contrary to authority that it accepted before the primary judge) once it has been unsuccessful. There is no suggestion that the ABCC before the primary judge sought to reserve the alternative position for later argument on appeal. There was no alternative formulation of its case before the primary judge. The ABCC's case was squarely put on the basis of existing authority. For the regulator to be given a second go on appeal with an entirely new formulation of the legal foundation for its case would undermine the principle of finality. This is especially so where the ABCC as regulator seeks to invoke a statutory presumption in order to prove that new case.

110    For all those reasons, we would refuse leave to raise the appeal ground that seeks to challenge the existing authorities as to what is required to establish intent to coerce. Therefore, it is not necessary or appropriate to address the legal arguments raised. It is also not necessary to consider the significance of the observations by Kiefel CJ, Keane, Nettle and Edelman JJ in Esso Australia Pty Ltd v The Australian Workers' Union [2017] HCA 54; (2017) 263 CLR 551 at [61] in relation to the established requirement that in order to establish coercion the pressure exerted must be by means that are unlawful, illegitimate or unconscionable. Further, it would be inappropriate to do so in circumstances where the submissions for the ABCC did not descend into a consideration of the long history of cases in which that formulation has been adopted in this Court and the extent to which that was a matter which Parliament may be presumed to have known when adopting the language that it did in the Fair Work Act provisions. The fact that a particular interpretation has long been adopted is also a matter to be brought to account in deciding whether those decisions are 'plainly wrong'. There must be both a strong conviction of error that can be demonstrated by reasoning and a persuasion that notwithstanding the importance of the underlying principles of certainty, stability and predictability in the administration of the law it is proper to depart from an earlier decision before a Court should do so: Gett v Tabet [2009] NSWCA 76 at [283]-[301] (Allsop P, as the Chief Justice then was).

ABCC's alternative case that the conduct was 'unlawful, illegitimate or unconscionable'

111    In the alternative, the ABCC also maintained that, if the presumption applied, the primary judge had erred in the approach to whether the action taken by Mr Molina had been unlawful, illegitimate or unconscionable. It was submitted that the primary judge had failed to address the issue solely from an objective perspective (instead having regard to the subjective intent of Mr Molina). It was also submitted that the full ambit of the threat of the picket was not considered, particularly the fact that a peaceful picket may nevertheless delay and disrupt because workers may not cross the picket and the picket may have been in place for an indeterminate duration. Particular emphasis was placed upon the latter point.

112    Again, it is important to go back to the way the case was presented before the primary judge. As the primary judge observed, the ABCC did not plead or particularise the respects in which the conduct of Mr Molina was said to be unlawful, illegitimate or unconscionable. In consequence: 'the failure … led to the unsatisfactory position that the parties did not, with respect, address in any detail the question of unconscionability or illegitimacy or the application of the principles to the facts of this case': at [201].

113    Instead, both before the primary judge and on appeal the principal position of the ABCC was that the conduct was unlawful by reason that it was adverse action. However, for reasons already given, that claim should not be accepted. Which leaves the alternatives that the threat of action involved the use of illegitimate or unconscionable pressure.

114    The closing submissions advanced by the ABCC to the primary judge on that issue were as follows (paras 112-115):

If the Applicant's pleaded account of the Threat is accepted, Mr Molina's conduct was a threat of disruption and delay in an attempt to overbear Civmec's refusal to send workers home. This was done in circumstances where Multiplex's representative had stated that the Site remained operational.

There is no suggestion in the Respondents' case that Mr Molina or [the Union] had any right to insist that Civmec send its workers home. The supposed rationale for sending workers home was a 'mark of respect' for the family of a deceased Canberra worker. There is no allegation of any safety issue at the Site that could have justified the workers ceasing work or leaving the site. Threatening a picket in those circumstances was, as is alleged in this case, unlawful adverse action.

The adverse action allegation satisfies illegality and the text and context of the words alleged make the illegitimacy and unconscionable aspect of the conduct arise on the face of the pleading.

In the circumstances of the conduct, the Court should infer that Mr Molina's use of the Threat to secure that result was unlawful, illegitimate and unconscionable.

115    As to whether the conduct was illegitimate or unconscionable, the primary judge reasoned as follows at [207]:

As I have not been satisfied that the Commissioner has established that Mr Molina held an intention to negate choice, it follows in this case that I cannot be satisfied to the relevant standard that the conduct was illegitimate or unconscionable. Whilst it might well be seen as officious or interfering to speak to a contractor's representative where it is obvious that the contractors' employees have been gathered together and to tell that representative to send the workers home, in circumstances where there is no proof of intent to negate choice such that the employer may still comfortably make its own decision as to what to do with its employees, then I would not without more be satisfied that the conduct should properly be described as illegitimate or unconscionable, particularly as it has not been shown to be unlawful. Had I been satisfied as to the requisite intent, then I may have considered the conduct at least illegitimate. In circumstances where crane operations had been suspended and there was no safety threat, it would have been disproportionate to insist that workers not return to work or be sent home from an operating site as a sign of respect, particularly where, as both Mr Molina and Mr Benkesser said in their evidence, there were other ways for workers to display respect for a deceased worker. In saying that I do not seek to diminish the significance of a death on site.

116    The reasoning of the primary judge drew upon her Honour's analysis of the evidence concerning whether an intent to negate choice had been demonstrated. Whether conduct was unlawful, illegitimate or unconscionable was not to be measured by the subjective intent of the actor. However, we do not accept that the primary judge approached the criteria in that way. The essence of her Honour's reasoning is to be found in the words: 'in circumstances where there is no proof of intent to negate choice such that the employer may still comfortably make its own decision as to what to do with its employees then I would not without more be satisfied that the conduct should properly be described as illegitimate or unconscionable' (emphasis added). Bearing in mind that her Honour's conclusion as to intent was reached as a matter of inference from objective facts, in our view, her Honour is saying no more than that if those facts are insufficient to support an inference of an intent to negate choice then they are likewise an insufficient basis upon which to conclude, objectively, that the conduct was illegitimate or unconscionable.

117    As we have noted, the reasoning of the primary judge as to intent was influenced by the difficulty in inferring that the picket as threatened was of a kind that would have any real effect upon the choice that Civmec might make concerning its employees staying on the Site: at [197]. Therefore, it is important to have regard to those findings when considering her Honour's reasoning that the evidence did not establish that the conduct was illegitimate or unconscionable.

118    There were important (unchallenged) findings by the primary judge about the way the threat was made and its broader context.

119    First, her Honour found that there was nothing in Mr Molina's manner when he spoke to Mr Buckie which disclosed any particular threatening tone, manner, intensity, persistence or aggression such as might give some hint that Mr Molina held the subjective intention to negate any choice on the part of Mr Buckie: at [198].

120    Second, there was no evidence to suggest that, after he threatened the picket, Mr Molina made any inquiries as to Civmec's position either later that day, or on the Saturday or Sunday: at [196].

121    Third, there was no evidence that Mr Molina took any interest in Civmec's position after the conversation with Mr Buckie: at [196]. Therefore, the statement was an isolated occurrence not part of a course of conduct designed to apply pressure.

122    Fourth, the primary judge was not satisfied that the picket that had been threatened was of a disruptive nature: at [191], [197].

123    Fifth, it was common ground that there had been no previous history of picketing on the Site that might otherwise give Mr Molina's threat content: at [185].

124    Sixth, Mr Molina left the site shortly after the meeting while workers and subcontractors remained on site. There was no obvious attempt to supervise or test the response of workers to the vote: at [195].

125    Seventh, the primary judge rejected any concern that Mr Buckie may have had second thoughts such that what he may have regarded as a credible threat initially was not so regarded by him by the time of the hearing: at [147].

126    Eighth, Mr Buckie spoke to Mr McLaughlin of Multiplex and mentioned the threat, but Mr Buckie did not paint that reporting as a scenario in which any fuss was made: at [128]-[129].

127    Ninth, it had not been shown that costs or prejudice would be incurred from a picket: at [162].

128    Against this was the fact that Mr Molina's alternative version of events was not accepted as true, a matter said to indicate guilt on the part of Mr Molina. There was also the fact that the threat was spoken in the context of the earlier meeting and as part of a demand that Civmec allow its workers to go home as a sign of respect.

129    However, merely to establish that Mr Molina spoke the words threatening a picket in the context of the demand was insufficient to establish that the conduct amounted to applying pressure of a kind that enabled the making of that statement to be characterised as illegitimate or unconscionable action. All the findings as to context pointed to an isolated utterance of a kind that was unlikely to produce real concern or belief that it would be carried into effect. It was a threat that was presumed by operation of s 361 to be made with intent to coerce, but which when examined in context did not rise to a threat of a kind that would apply any real pressure at all. Taking account of the seriousness of the allegations made and their consequences, on the unchallenged findings of the primary judge the evidence fell short of demonstrating conduct that was illegitimate or unconscionable.

130    The above conclusions flow, in part, from the way the case was put to the primary judge by the ABCC. As with the claim of adverse action, the ABCC did not seek to make a case that the threat was of a blockading picket. Rather, in its pleading it alleged that there was 'a threat by [Mr] Molina to organise or take action against Civmec, namely, to arrange, promote or otherwise facilitate or take part in a picket line of the site on Monday' (para 27). Then it pleaded that the threat was made 'with the intent to negate Civmec's choice whether to send its employees home and in doing so, coerce Civmec to … comply with a lawful request made by the [Union] … or advance the views of the [Union]'.

131    There was no explicit case as to a threatened consequence of the picket. There was no claim as to what type of picket was communicated by the threat or what type of consequence might flow if the threat was carried into effect. There was no course of conduct. Instead, the case was that 'the text and context of the words alleged' when spoken on a single occasion (in a manner found not to be threatening) established the case without more. A case of that kind depended upon the threat itself, in context, being of a kind that it could bring to bear significant pressure on Civmec. The findings by the primary judge do not lead to that conclusion.

The grounds of appeal and respondents' notice of contention

132    Having dealt with the arguments in the manner in which they were advanced by the respondents in written and oral submissions, it is now possible to deal briefly with the consequences for the appeal grounds and the respondents' notice of contention.

133    Grounds 1, 2 and 3 concern the adverse action claim. Those grounds depend upon the ABCC departing from its case as advanced before the primary judge. For that reason those grounds must be dismissed.

134    Ground 4 is an unparticularised claim of error in failing to uphold the coercion claim. It stands or falls on whether any of the following particularised grounds are upheld. Ground 5(a) says that the primary judge erred in failing to apply s 361 to the claim that s 348 had been contravened. That ground is made out. Ground 5(b) says that if the presumption had been applied then the case advanced by the ABCC would have been upheld. As the presumption only deals with the subjective element of the threat to coerce this ground has not been made out as a necessary consequence of success on ground 5(a).

135    Ground 6 is premised on the assumption that the presumption in s 361 does not apply. It claimed that the primary judge failed to approach the evidence by asking if the threat of the picket was made 'with intent to coerce' but instead applied 'the negation of choice'. Expressed in those terms, the ground depends upon the ABCC being given leave to depart from the case it advanced below. For reasons that have been given, such leave should be refused.

136    Ground 7 is premised on the assumption that the presumption in s 361 did not apply and the further assumption that the intention to negate choice test still applied. On those assumptions, it alleges that the primary judge erred in failing to find that Mr Molina intended to negate the choice of Civmec. This ground does not arise because ground 5(a) has been upheld.

137    Ground 8 alleges further to ground 7 particular respects in which there was alleged factual error by the primary judge in determining whether Mr Molina had an intention to negate choice by Civmec. This ground also does not arise because ground 5(a) was upheld.

138    Ground 9 alleges that the primary judge erred in introducing an additional element into s 348, namely whether the threat was unlawful, illegitimate or unconscionable. Leave was required to raise that ground and for reasons given that leave should be refused.

139    Grounds 10 and 11 allege that the primary judge erred in failing to find that the threat of the picket line was unlawful, illegitimate or unconscionable by failing to undertake a solely objective assessment and failed to assess the threat in its fullest possible terms (including its context). The primary judge did undertake an assessment that was partly subjective. However, her Honour's conclusion that the threat had not been shown to be unlawful, illegitimate or unconscionable has not been demonstrated to be in error.

140    The respondents filed a notice of contention raising two grounds. The first was to the effect that if s 361 applied then the respondents discharged their onus. For reasons given, this contention should not be upheld. The second dealt with the issue of whether the conduct of Mr Molina (for which the Union was also said to be responsible) was unlawful, illegitimate or unconscionable. For reasons we have given, we uphold the contention that on the findings of the primary judge it has not been shown that the threat was a threat to coerce. Although it is presumed to have been made with intent to coerce it has not been established that it was unlawful, illegitimate or unconscionable.

Conclusion and costs

141    It follows that, for the reasons given, the appeal must be dismissed. The Court was not invited to consider the making of any costs order. There should be leave to the respondents to make any application for a costs order within 14 days.

Associate:

Dated:    29 May 2020