Laing v Construction, Forestry, Mining and Energy Union [2005] FCA 765

2005FCA0765 - Corrigendum

FEDERAL COURT OF AUSTRALIA

WILLIAM LAING (An inspector appointed pursuant to s 84(2)(a) of the Workplace Relations Act 1996) -v- CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION and JOHN CUMMINS and S J HIGGINS PTY LTD and SHANE CHRISTOPHER SHEEDY

VID 895 of 2003

RYAN J

10 JUNE 2005

MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 895 of 2003

BETWEEN:	WILLIAM LAING (An inspector appointed pursuant to s 84(2)(a) of the Workplace Relations Act 1996) Applicant
AND:	CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION First Respondent
AND	JOHN CUMMINS Second Respondent
AND	S J HIGGINS PTY LTD Third Respondent
	SHANE CHRISTOPHER SHEEDY Fourth Respondent
JUDGE:	RYAN J
DATE OF ORDER:	10 JUNE 2005
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1. The applicant have leave to file and serve by 8 July 2005 a further amended application and a further amended statement of claim conforming generally with the reasons for judgment published this day.

2. Subject to any further or other order, each respondent file and serve by 5 August 2005 his or its amended defence to the further amended statement of claim referred to in paragraph 1 of this Order.

3. Liberty be reserved to any party to apply on not less than 48 hours notice in writing to the other parties.

4. There be a directions hearing on a date not before 5 August 2005 to be fixed after consultation with the parties.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 895 of 2003

BETWEEN:	WILLIAM LAING (An inspector appointed pursuant to s 84(2)(a) of the Workplace Relations Act 1996) Applicant
AND:	CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION First Respondent
AND	JOHN CUMMINS Second Respondent
AND	S J HIGGINS PTY LTD Third Respondent
	SHANE CHRISTOPHER SHEEDY Fourth Respondent

JUDGE:	RYAN J
DATE:	10 JUNE 2005
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

Introduction

1 There are before the Court two motions on notice, one by the applicant dated 30 November 2004 and the other by the third respondent S.J. Higgins Pty Ltd (“the third respondent”) and the fourth respondent Shane Christopher Sheedy (“Sheedy”) dated 3 December 2004. By its motion, the applicant seeks leave to file and serve a further amended application (“the proposed further amended application”) and a further amended statement of claim (“the new statement of claim”). However, the motion by the third and Sheedy seeks;

‘1. That:

(a) paragraphs 55-64 of the pleading be struck out; (or alternatively)

(b) paragraphs 55-64 and paragraphs 42-50 and 52-53 of the pleading be struck out; (or alternatively)

(d) the pleading be struck out.

2. That the Applicant be given leave to re-plead, in such form, as he is advised.’

Background

2 The original application was made under s 170NC of the Workplace Relations Act 1996 (Cth)(“the Act”) on the basis of an allegation that the first and second respondents, the Construction, Forestry, Mining and Energy Union (“the CFMEU”) and the second respondent, John Cummins, (“the second respondent”) had taken action with intent to coerce W.M. Loud Pty Ltd (“W.M. Loud”) into entering into a certified agreement. By further amended application and statement of claim dated 26 July 2004 the applicant alleged, amongst other things, that the third respondent and Sheedy had similarly contravened s 170NC of the Act. The third respondent and Sheedy subsequently contended that the further amended application and statement of claim were deficient for failing to disclose a reasonable cause of action.

3 By a letter dated 28 October 2004 the solicitors for the applicant sought the consent of the third respondent and Sheedy to the filing and service of a yet further amended application and statement of claim. The third respondent and Sheedy later indicated that they would contend that the proposed further amended application and statement of claim did not disclose a reasonable cause of action.

4 The question presently requiring resolution arises out of the motions on notice respectively filed by the applicant on 30 November 2003 and by the third respondent and Sheedy on 3 December 2004 which seek directions as to how the applicant can formulate a further amended statement of claim and application appropriate to charge those respondents.

The Rules of Court

5 Order 13 r 2 of the Rules of this Court provides:

‘(1) Subject to the following provisions of this rule, the Court may, at any stage of any proceeding, order that any document in the proceeding be amended, or that any party have leave to amend any document in the proceeding, in either case in such manner as the Court thinks fit.

(2) All necessary amendments shall be made for the purpose of determining the real questions raised by or otherwise depending on the proceeding, or of correcting any defect or error in any proceeding, or of avoiding multiplicity of proceedings.

…

(7) An amendment may be made even if the effect of the amendment is to add a new claim for relief or foundation in law for a claim for relief (whether by way of substitution for an existing claim for relief or foundation in law or not) if the new claim for relief or foundation in law:

(a) arises out of the same facts or substantially the same facts as those already pleaded to support an existing claim for relief by the party applying for leave to make the amendment; or

(b) subject to subrule (9), arises, in whole or in part, out of facts or matters that have occurred or arisen since the commencement of the proceeding.

(8) Subject to subrule (9), an amendment of a pleading may be made even if the amendment pleads a fact or matter that has occurred or arisen since the commencement of the proceeding.

(9) Paragraph (7) (b) and subrule (8) do not permit an amendment that would have an effect inconsistent with any statute that limits the time within which an action or a proceeding of a particular kind may be brought or instituted.’

6 Order 11 r 2 provides:

‘Subject to these Rules:

(a) a pleading of a party shall contain, and contain only, a statement in a summary form of the material facts on which the party relies, but not the evidence by which those facts are to be proved; and

(b) paragraph (a) has effect subject to this Order and to Order 4 (which relates to commencement of proceedings) and to Order 12 (which relates to particulars.’

7 Order 11 r 5 provides:

‘A party need not plead a fact if:

(a) the fact is presumed by law to be true; or

(b) the burden of disproving the fact lies on the other party;

except so far as may be necessary to meet a specific denial of that fact by the other party in his pleading or failure to plead such fact is likely to cause the other party to be taken by surprise.’

8 Order 11 r 10 provides:

‘In a pleading subsequent to a statement of claim a party shall plead specifically any matter of fact or point of law (for example, performance, release, any relevant statute of limitation, fraud or any fact showing illegality) that:

…

(b) if not specifically pleaded might take the other party by surprise.’

9 Order 11 r 16 provides:

‘Where a pleading:

(a) discloses no reasonable cause of action or defence or other case appropriate to the nature of the pleading;

(b) has a tendency to cause prejudice, embarrassment or delay in the proceeding; or

the Court may at any stage of the proceeding order that the whole or any part of the pleading be struck out.’

Applicant’s submissions

Relevant principles

10 Counsel for the applicant submitted that, pursuant to O 13 r 2 (set out at [5] above), the Court should grant leave to amend the pleadings, unless the proposed amendments are so obviously futile that they should be struck out; see Leotta v Public Transport Commission (1976) 9 ALR 437.

11 It was contended for the applicant that the principles governing the Court’s power to strike out a pleading pursuant to O 11 r 16 are relevant in this respect. Counsel for the applicant submitted that the power will be exercised only where the applicant’s case is manifestly untenable and cannot possibly succeed; see General Steel Industries Inc. v Cmr for Railways (NSW) (1964) 112 CLR 125 at 130. It was said that, for impugned sections of a statement of claim to be struck out, they must be plainly unarguable and bound to fail; see Murex Diagnostics Australia Pty Ltd v Chiron Corp (1995) 55 FCR 194. Counsel for the applicant submitted that the Court’s discretion to strike out a pleading should be exercised sparingly and with caution, as established by Trade Practices Commission v Pioneer Concrete (Qld) Pty Ltd (1994) 52 FCR 164.

12 For the applicant it was contended that, if a cause of action raised by a pleading is fairly arguable, it will not be struck out and, in assessing whether a cause of action is arguable it should be assumed that the factual allegations in the statement of claim can be made out at trial; see Empire Shipping Co Inc v Owners of the Ship Shin Kobe Maru (1991) 32 FCR 78. Counsel for the applicant submitted that, where the dispute between the parties depends upon disputed issues of fact, it will never be appropriate for the claim to be struck out; see Unilam Holdings Pty Ltd v Kerin (1992) 107 ALR 709. The well-established principle that a statement of claim will not be struck out unless it is manifestly untenable or defective was said to militate against the resolution of detailed submissions inviting a minute analysis of the impugned statement of claim; see Scottish Pacific Business Finance Pty Ltd v Soundstage Australia Ltd (1993) ATPR 41-273 per French J at 41,677.

Section 170NC

13 Counsel for the applicant contended that s 170NC of the Act relevantly prohibits a person from taking or threatening to take industrial action or other action, with the intention of coercing another person to agree or not to agree to do one of the things specified in s 170NC(1)(c) and (d).

14 It was submitted that the principles relevant to the operation of s 170NC included the following:

(a) the expression “other action” includes conduct of a kind taken by a person which does not fall within the definition of “industrial action” but which is related to the performance of work by employees for an employer; see National Tertiary Education Union v Commonwealth of Australia (2002) 117 FCR 114 at [138]-[139]. (However, in oral submissions Counsel for the applicant conceded that the High Court had observed in Electrolux Home Products Pty Ltd v Australian Workers’ Union [2004] 209 ALR 116that this proposition is not settled law).

(b) the requisite coercion requires conduct that is compulsive in the sense that the pressure brought to bear, from a practical perspective, negates choice, and is unlawful, illegitimate or unconscionable; see Finance Sector Union v Commonwealth Bank of Australia (2000) 106 FCR 16 at [18]-[38]; National Union of Workers v Quenos (2001) 108 FCR 90 at [128]; Seven Network (Operations) Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (“CEPU”) (2001) 109 FCR 378 at [41]; Anglo Coal Pty Ltd v CFMEU [2003] FCA 1073 at [19];

(c) a respondent must have actual knowledge of the circumstances that make the conduct coercive. Knowledge of the probability of the intended result is not required. A person will not escape liability by establishing a belief that the conduct was lawful. If a person deliberately refrains from making enquiries because the person knows the probable consequences of the enquiries, constructive knowledge equivalent to actual knowledge will be established; see Seven Network v CEPU (supra) at [33]-[37] and Anglo Coal v CFMEU (supra) at [19];

(d) the proscribed intent need not be the sole reason for the conduct, as long as it is a substantial or operative reason; see Hanley v Automotive, Food, Metals, Engineering, Printing & Kindred Industries Union (“AFMEPKIU”) (2000) 100 FCR 530 at [45]; and

(e) in judging whether coercion was intended, the Court may have regard to the characteristics of the parties; see Finance Sector Union v Commonwealth Bank (supra) at [38].

The causes of action against the third respondent and Sheedy

15 The applicant submitted that Sheedy had taken steps to cause the third respondent to cancel its contract dated 14 August 2003 with W.M. Loud, with the intent to coerce W.M. Loud into making an agreement with the CFMEU, or alternatively into making an agreement which complied with the Victorian Building Industry Agreement (“VBIA”) or further alternatively into varying the agreement between W.M. Loud and the Australian Workers’ Union (“AWU”); (see pars 44-48, 50, 52 and 56-58 of the new statement of claim). The applicant submitted that the ground for this cause of action is supplied by the contents of a draft affidavit of Sheedy provided to the applicant, before the third respondent and Sheedy had been joined to the present proceedings. The draft affidavit indicates that the third respondent took the view in or about August or September 2003 that W.M. Loud’s enterprise agreement did not comply with the VBIA and the contract was cancelled because the third respondent wanted W.M. Loud to have a VBIA compliant enterprise agreement. In this respect, the applicant referred to par 57 of the new statement of claim.

16 Counsel for the applicant submitted that, for the purposes of s 170NC, the cause of action is entirely made out. It is said that sufficient material facts are pleaded to make good the allegations that:

(a) the third respondent and Sheedy took or threatened to take action;

(b) the action was “other action” within the meaning of s 170NC; and

17 Counsel for the applicant further contended that it is plainly arguable that the action taken by the third respondent and Sheedy is “other action” within the meaning of s 170NC. The action consisted essentially of the cancellation by the third respondent of the contract with W.M. Loud for reasons going to the nature and content of W.M. Loud’s enterprise agreement. The cancellation took place in the context of significant communications between, on the one hand, the CFMEU and the second respondent, and, on the other hand, the third respondent and Sheedy. It was said for the applicant that the nature of the action, together with its “industrial” context, makes it strongly arguable that it amounted to “other action”.

18 It was next urged on behalf of the applicant that, given the content of the draft affidavit of Sheedy, it is also plainly arguable that the respondents intended to coerce W.M. Loud into making an enterprise agreement which, in the view of the third respondent and Sheedy, complied with the VBIA. It was said that, in this respect, the characteristics of the parties are also relevant in that the fact that W.M. Loud is a small asphalting sub-contractor whereas the third respondent is a much larger contractor in the building industry may be significant when the Court comes to consider whether the requisite intent has been proved.

19 Counsel for the applicant submitted that it is plainly arguable that the action taken was unlawful, illegitimate or unconscionable in view of the fact that:

(a) a valid contract existed between W.M. Loud and the third respondent;

(b) Sheedy took steps to cause the third respondent to cancel the contract; and

20 It was submitted that any factual disputes concerning, for example, the meaning or content of the contract or of W.M. Loud’s enterprise agreement, cannot be resolved on a motion to strike out the statement of claim but must await determination at trial.

The position of Sheedy

21 The line of authority exemplified by Said v Butt (1920) 3 KB 497 and O’Brien v Dawson (1942) 66 CLR 18 relied on by the third respondent and Sheedy was said by the applicant to be concerned essentially with the tort of interference with contractual relations. According to the third respondent and Sheedy, that line of authority precludes the assertion that Sheedy’s alleged contravention of s 170NC has caused the third respondent to contravene the same section.

22 That submission was said by Counsel for the applicant to be misconceived because cases like Said v Butt and O’Brien v Dawson are authority for the proposition that, in respect of the tort of interference with contractual relations, a director of a company which has unlawfully cancelled a contract cannot be said to be a third party (independent of the company) who has caused the company to cancel the contract. This was said to follow because the actions of the director are taken to be the actions of the company, a proposition which has no application to a proceeding like the present which does not involve the cause of action of interference with contractual relations. Rather, the present proceeding is founded on an alleged breach of a statutory provision imposing a penalty. It was further submitted that it is abundantly clear from Hanley v AFMEPKIU and Seven Network v CEPU that a person, like a union official or a company director, may behave in such a way that both the natural person, and the relevant organisation or company are in breach of s 170NC. The proposition that cases like Said v Butt and O’Brien v Dawson preclude the Court from finding that Sheedy has caused the third respondent to contravene s 170NC was said to be wholly without substance. Accordingly, the attack by the third respondent and Sheedy on the new statement of claim could not be sustained and orders should be made in the form sought by the applicant’s notice of motion dated 30 November 2004.

Respondents’ submissions

23 By their motion on notice dated 3 December 2004, the third respondent and Sheedy opposed a grant of leave to file and serve the new statement of claim on the ground that it does not disclose a reasonable cause of action. Alternatively, it was contended that some paragraphs of the new statement of claim should be struck out as not contributing to the disclosure of a reasonable cause of action or as being otherwise embarrassing.

The new statement of claim

24 Counsel for the third respondent and Sheedy submitted that in the new statement of claim the applicant has pleaded evidence rather than material facts and so has not complied with O 11 r 12. It was submitted that the proposed further amended application and the new statement of claim do not identify whether one, or more than one, contravention of s 170NC is alleged. Nor do they separate the alleged contraventions.

25 It was pointed out that pars 63 and 64 of the new statement of claim assert that the matters pleaded amount to “a breach” of s 170NC(1) but it is not clear from pars 5 and 6 of the application whether one contravention, or more than one contravention, of s 170NC is alleged. Counsel for the third respondent and Sheedy submitted that each contravention has to be identified in order to put those respondents properly on notice of the case which they have to meet.

26 Counsel for the third respondent and Sheedy submitted that the proposed further amended application and the new statement of claim seek to allege contraventions (including contraventions by Sheedy) which could not, on any view, fall within the scope of s 170NC. It was further said that the new statement of claim failed to identify the material facts constituting the alleged “unlawfulness”, “unconscionability” and “illegitimacy”, all of which should, in any event, have been alleged in the alternative.

Section 170NC is a Penalty Proceeding

27 It was next submitted for the third respondent and Sheedy that the proceeding is a penalty proceeding; (see Alfred v Walter Construction Group Ltd [2003] FCA 993 (19 September 2003); and Rich v Australian Securities and Investment Commission (2004) 209 ALR 271) so as to entitle those respondents to the protection of the penalty privilege. The rationale of the asserted privilege was said to be that “those who allege criminality or other illegal conduct should prove it”; (see Rich at [24]). Thus, in a penalty case, the respondents, and particularly Sheedy, are entitled to a proper pleading.

The causes of action against the third respondent and Sheedy

28 Counsel for the third respondent and Sheedy submitted that the ingredients of the cause of action alleged by the applicant are action or threatened action with “intent to coerce”. It was noted that the applicant accepts that two elements must be established to prove “intent to coerce” under s 170NC(1). First, it needs to be shown that it was intended that pressure be exerted which, in a practical sense, would negate choice. Second, the exertion of that pressure must involve conduct that is unlawful, illegitimate or unconscionable”; (see Seven Network v CEPU (supra) at [41].)

29 It was said, in relation to this point, that the applicant has introduced an allegation of “unlawful, illegitimate and/or unconscionable” behaviour, at par 59 of the new statement of claim and has made consequential amendments to par 38 but has not made corresponding allegations in relation to the third respondent’s conduct. In the same context, it was acknowledged that, by deleting the former par 33, the applicant has abandoned any suggestion that the third respondent had acted as a result of pressure from the CFMEU.

The Contraventions

30 Counsel for the third respondent and Sheedy submitted that it was not possible to discern from the new statement of claim whether pars 44, 46, 48, 50, 52 and 53 are intended to allege separate contraventions. It was contended that pars 55 and 56 are inconsistent with pars 62 and 63 of the new statement of claim and pars 5 and 6 of the proposed further amended application.

31 Moreover, it was said, the “rolled up” nature of the plea in pars 46-48 of the new statement of claim tends to divert attention from the need for the elements of each contravention to be pleaded separately. It was also noted that the criticism of this type of “rolled up” or global pleading had been made before the applicant had prepared the new statement of claim but had been ignored. (Mr Stuart Wood of Counsel for the third respondent and Sheedy had set out his criticisms of the applicant’s pleading in a memorandum dated 17 September 2004 to Mr Jacobs of Counsel for the applicant (which forms exhibit “APM-2” to the affidavit of Mr Andrew Maher served on 3 December 2004; see eg pars 58-64).)

Attempting to plead contraventions which could not, on any view, fall within the scope of s 170NC.

32 Counsel for the third respondent and Sheedy noted that each element of Sheedy’s alleged conduct, namely, the “advice” given and Sheedy’s “enquiry” on 24 August 2003 (see par 44); the “advice” given on 26 August (see par 46); the “advice” given on 4 or 5 September (par 48) and Sheedy’s “instructions” to send a letter (par 52) is now said to be “unlawful, alternatively illegitimate and/or unconscionable”; (see par 59 of the new statement of claim) but no similar allegation has been made in relation to the conduct of the third respondent.

33 It was said that the applicant’s pleading was deficient in that it failed to allege that the “action” taken by the third respondent to cancel the contract or, in the alternative, purporting to do so (see par 50) was “unlawful etc”.

34 Counsel for the third respondent and Sheedy further submitted that, although each element of Sheedy’s conduct was alleged to be “unlawful, alternatively, illegitimate and/or unconscionable”, a proper analysis of that conduct, for example, Sheedy’s “advice” and his “enquiry:” on 24 August 2003 (par 44) or his “instructions” to send a letter (par 52), shows that the allegation of “unlawfulness etc” cannot be made good without establishing further facts yet to be pleaded.

Identifying the material facts upon which the allegations of “unlawfulness”, “unconscionability” and “illegitimacy” are based

35 Counsel for the third respondent and Sheedy advanced two reasons why the material facts upon which the applicant’s allegations are based should be pleaded. First, the pleading should be expanded to avoid taking the respondents by surprise (see O11 r 5 and O 11 r 10(b)). Second, it was submitted that the material facts ought to be pleaded as this is a penalty proceeding and “those who allege criminality or other illegal conduct should prove it”; (see Rich at [24], referred to at [27] above; see also par 63 of Mr Wood’s memorandum of 17 September 2004). As to the elements of any unlawfulness etc., it was submitted by Counsel for the third respondent and Sheedy that they should not be forced to guess at the unlawfulness relied on; (see par 14 of Mr Wood’s memorandum). If the unlawfulness alleged is, for example, a breach of contract, it was submitted that the contract, the term and the breach should each be specifically identified. The applicant should have no difficulty in complying with that requirement because it is clear from par 53 of the new statement of claim it is aware of the terms of the contract with W. M. Loud.

36 It was further submitted for the third respondent and Sheedy that the same goes for unconscionability. No attempt has been made to plead facts establishing “a special disability” and “an absence of a reasonable degree of equality” and “that the disability was sufficiently evident” and so on; (see, for example, Louth v Diprose (1992) 175 CLR 621, at 637). Counsel submitted that the allegation of unconscionability etc. has been added to the pleadings because Seven Network v CEPU refers to those concepts, not because the facts of the present case support those pleas (unless there are additional facts yet to be pleaded). It was contended, for example, that it is highly unlikely that the applicant will be able to establish facts necessary to plead some “special disability”, as between the two companies.

Plea in the alternative

37 Counsel for the third respondent and Sheedy also contended that it is not possible to respond in a concise fashion to the allegations made in pars 5, 43, 51 and 54 in the form in which they appear in the new statement of claim. It was submitted that the allegations in those paragraphs ought to be in the alternative.

The adequacy of the proposed further amended application to charge the third respondent

38 The relief claimed against the third respondent in the proposed further amended application is expressed as follows:

‘5. The imposition of a penalty under s.170NF of the Act upon the Third Respondent in relation to the contravention of s.170NC in that during the period 22August 2003 to November 2003 the Third Respondent:

(a) threatened and/or advised W.M. Loud that it was considering not utilising the services of W.M. Loud to perform construction work for the Third Respondent; and/or

(b) threatened and/or advised W.M. Loud that it was considering and/or would be cancelling the contract, and not providing W.M. Loud with further work;and / or

with the intent to coerce W.M. Loud to agree:

(i) to make an agreement with the First Respondent under Division 2 or 3 of Part VIB of the Act;

(ii) alternatively, to make an agreement under Division 2 or 3 of Part VIB of the Act that complied with the terms of the industrial instrument described as the Victorian Building Industry Agreement 2000-2005 (VBIA);

(iii) alternatively, to vary the certified agreement between W.M. Loud and the Australian Workers Union entitled "AWU WM Loud Agreement 2003" made under Division 2 of Part VIB of the Act ("2003 Agreement").’

39 Section 170NC(1) of the Act provides:

‘A person must not:

(a) take or threaten to take any industrial action or other action; or

(b) refrain or threaten to refrain from taking any action;

with intent to coerce another person to agree, or not to agree, to:

(d) approving any of the things mentioned in paragraph (c).’

40 Thus, an element of any contravention of the subsection is the taking or threatening to take action, or refraining, or threatening to refrain, from taking action with the proscribed intent directed to one of the matters identified in pars (c) and (d). As I understand it, the “action”, which the applicant intends to allege that either or both the third respondent and Sheedy have taken or threatened to take in contravention of s 170NC(1)(a), is either or both:

(i) the cancellation of the existing contract between W.M. Loud and the third respondent;

(ii) refusing to consider W.M. Loud in the allocation of future sub-contracts which, in the ordinary course, W.M. Loud would be capable of performing.

41 As s 170NC(1) (b) is expressed as an alternative to s 170NC(1)(a), it is open to the applicant, if the allocation of future sub-contracts is regarded as “action” within the sub-section, to plead facts to make out an allegation of refraining, or threatening to refrain from taking that action.

42 Additionally to the elements required by one or other of pars (a) and (b) of s 170NC(1), a contravention requires that the taking or threatening to take action, or the refraining or threatening to refrain from taking action be “with intent to coerce” W.M. Loud to agree to making a certified agreement with the CFMEU or a certified agreement which complied with the VBIA, or to varying its existing agreement with the AWU.

43 I do not understand it to be suggested that the third respondent had any intent to coerce W.M. Loud to agree to terminate, or extend the nominal expiry date of a certified agreement with the CFMEU, or of one complying with the VBIA since, ex hypothesi, no such agreement was in existence at the time of the alleged action. Nor is there any suggestion that any action by the third respondent was directed to W.M. Loud’s agreeing to “approve” the making etc of a certified agreement with the CFMEU or one complying with the VBIA.

44 This analysis of the provisions of s 170NC(1) indicates that sub-pars (a) and (b) of par 5 of the prayer for relief in the proposed further amended application are inappropriate to identify “action” in the sense used in s 170NC(1)(a) or (b). The “action” does not consist of “threatening and/or advising” anything. However, proof of a threat to take or refrain from taking “action” is one way of establishing a contravention based on one or other of those paragraphs. I also consider that there is much force in the complaint of the third respondent and Sheedy that it is not clear from the proposed further amended application whether each of them is alleged to have committed more than one contravention of s 170NC(1) or whether it is intended to allege a number of single contraventions, each an alternative to the other. If the latter is the applicant’s intention, par 5 of the further amended application could be cast in some such form as the following;

“The imposition of a penalty under s 170NF of the Act upon the Third Respondent for its contravention between 22 August 2003 and November 2003 of s 170NC constituted by:

(a) refusing to consider W.M. Loud in the allocation of future sub-contracts for work which W.M. Loud was capable of performing with the intent to coerce W.M. Loud to agree:-

(i) to make an agreement with the First Respondent under Division 2 or 3 of Part VIB of the Act (“the first proscribed agreement”); or alternatively;

(ii) to make an agreement under Division 2 or 3 of Part VIB of the Act that complied with the terms of the industrial instrument described as the Victorian Building Industry Agreement 2000-2005 (VBIA) (“the second proscribed agreement”) or alternatively;

(iii) to vary the certified agreement between W.M. Loud and the Australian Workers Union entitled “AWU W M Loud Agreement 2003 made under Division 2 of Part VIB of the Act (“2003 Agreement”) (“the proscribed variation”).

(b) alternatively, threatening to refuse to consider W.M. Loud in the allocation of future sub-contracts for work which W.M. Loud was capable of performing with the intent to coerce W.M. Loud to agree;

(i) to make the first proscribed agreement; or alternatively