FEDERAL COURT OF AUSTRALIA

Williams v Construction, Forestry, Mining and Energy Union [2009] FCA 223

INDUSTRIAL LAW – Union organiser predicted that employer would have “some problems” if additional labour not engaged on building site – Whether amounted to threat that organiser would procure stoppage of work on site.

INDUSTRIAL LAW – Union organiser recommended that workers on building site seek (from their employers) their own “relocation” away from the site – Whether amounted to recommendation of stoppage of work – Whether amounted to engagement by organiser or workers in “ban, limitation or restriction on the performance of … work”.

INDUSTRIAL LAW – Union organiser recommended stoppage of work on building site in pursuance of claim for engagement of additional labour on site – Whether organiser intended that builder’s choice in engagement of labour be negated – Whether method employed unlawful, illegitimate or unconscionable – Whether involved intent to coerce builder.

Building and Construction Industry Improvement Act 2005 (Cth) ss 36, 37, 38, 43, 48, 49, 57, 69

Occupational Health and Safety Act 2004 (Vic) ss 21, 111, 112

Workplace Relations Act 1996 (Cth) s 170NC

Amalgamated Engineering Union (Australia Section) v Metal Trades Employers Association (1952) 73 CAR 324

Cahill v Construction, Forestry, Mining and Energy Union (No 2) (2008) 170 FCR 357

Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194

Commonwealth Steel Co Ltd v Federated Ironworkers Association of Australia (1952) 74 CAR 84

Construction, Forestry, Mining and Energy Union v Australian Industrial Relations Commission (1998) 89 FCR 200

Davids Distribution Pty Ltd v National Union of Workers (1999) 91 FCR 463

Gietzelt v Craig-Williams Pty Ltd (No 1) (1959) 1 FLR 456

Hanley v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union(2000) 100 FCR 530

NMHG Distribution Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (2000) 104 IR 158

Seven Network (Operations) Limited v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (2001) 109 FCR 378

ANDREW WILLIAMS v CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION and ROBERT MATES

VID 1219 of 2007

JESSUP J

13 MARCH 2009

MELBOURNE

THE COURT ORDERS THAT:

1.                  The proceeding be listed at 10.15 am on 20 March 2009 for the purpose of hearing the parties with respect to the final orders which should be made conformably with the court’s reasons published this day.

2.                  Costs be reserved. 

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.

REASONS FOR JUDGMENT

INTRODUCTION

1                     This is an application by Andrew Williams, an Australian Building and Construction Inspector appointed under s 57 of the Building and Construction Industry Improvement Act 2005 (Cth) (“the BCII Act”), for the imposition of penalties on the respondents, the Construction, Forestry, Mining and Energy Union (“the Union”) and one of its organisers, Robert Mates, in respect of conduct alleged to be in contravention of ss 38 and 43 of the BCII Act.  As alleged, the conduct was engaged in by Mr Mates at a construction site for the extension of a warehouse at 372 Darebin Road, Alphington (“the site”) on 28 and 31 July 2006.  The builder concerned at the site, Kane Constructions Pty Ltd (“Kane”) had been engaged by a developer to build the extension to the warehouse. 

2                     As building construction jobs go, the extension of the warehouse at the site was a relatively small one.  Kane employed only one person on the site, the Site Manager, James Leonard.  He reported to the Project Manager for the job, Howard Dawson.  He in turn reported to Kane’s Construction Director, John Chambers.  Save for the duties performed by Mr Leonard himself, all the work done on the site was performed by subcontractors.

3                     According to the allegations of the applicant, Mr Mates arrived on the site on Friday 28 July 2006 and, having discovered that there was no labourer employed as the workers’ occupational health and safety representative, demanded that one should be so employed promptly.  It is alleged that Mr Mates told Mr Leonard that, unless such a labourer was employed, he would organise a work stoppage on the site, or would take other action to procure a disruption of work on the site.  The applicant says that this conduct by Mr Mates amounted to coercion of Kane to employ a person as a building employee, or to designate a building employee or contractor, to perform occupational health and safety duties, in breach of s 43 of the BCII Act. 

4                     Mr Mates denies both that he demanded (or even requested) the employment, or the designation, of a worker with occupational health and safety duties and that he made any threat that he would stop, or disrupt, the performance of work on the site.  It is common ground that he did attend the site on 28 July 2006, and that he did speak to Mr Leonard.  The respondents say that, when he arrived at the site on that day, Mr Mates found the amenities in an appalling condition, and that the screened-off section of the sheds which was allocated as a first-aid room was being used as a de facto storage area for construction tools.  They say that Mr Mates inquired of Mr Leonard whether there was a person on site with occupational health and safety qualifications, whether there was a person to perform “peggy” duties (ie including general cleaning and housekeeping tasks, particularly around the site sheds and amenities) and whether there was a person with first-aid qualifications.  In each case, he was told that Mr Leonard himself had the role in question, as well as the role of Site Manager.  It was apparent to Mr Mates that Mr Leonard had too many responsibilities, and that the cleanliness and general condition of the sheds and amenities was suffering as a result.  He told Mr Leonard that he needed some assistance, and that that assistance should be provided by Kane. 

5                     The applicant alleges that Mr Mates returned to the site on Monday 31 July 2006.  It is alleged that Mr Mates told Mr Leonard that he (Mates) had spoken to Mr Chambers, who was not prepared to engage a labourer as the occupational health and safety representative.  As a result, Mr Mates said that he was on site “to shut the job down”.  There was a meeting of workers, addressed by Mr Mates, after which the workers ceased work, and no further work was performed that day.  It is alleged that, by proceeding in this way, Mr Mates organised, or took, action with intent to coerce Kane to employ a labourer, to engage a contractor or to designate some other building worker, for the performance of occupational health and safety duties, in contravention of s 43 of the BCII Act.  It is also alleged that Mr Mates thereby engaged in unlawful industrial action within the meaning of s 38 of the BCII Act.  The respondents deny that Mr Mates intimated, either to Mr Leonard or to anyone else, that it was his intent “to shut the job down”.  They agree that Mr Mates did attend the site on 31 July 2006, and did conduct a meeting of workers at the site.  However, they say that, during the course of that meeting, Mr Mates went no further than to inform the workers of his concerns about safety on the job, and about the condition of the site sheds and amenities, and to discuss with them their own views on the subject.  The respondents’ position is that it was the consensus of workers at the meeting that, in the light of those concerns, they should not work further at that site.  It is common ground that, save for the unloading of some steel which had just been delivered to the site, no further work was done that day. 

6                     Finally, the applicant alleges that, before he left the site on 31 July 2006, Mr Mates told Mr Leonard that, if there was not an occupational health and safety labourer on the site the following day, “we’ll go through all this again”.  It is alleged that this implied a threat to organise or to take action with intent to coerce Kane to employ a person, to engage a contractor or to designate a worker, with occupational health and safety responsibilities for the site, in contravention of s 43 of the BCII Act.  The respondents deny that Mr Mates made any such statement. 

7                     Section 43(1) of the BCII Act provides as follows:

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

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

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

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

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

Although this provision contains a number of terms which are defined elsewhere in the BCII Act, the controversy in the present case is limited to the question whether Mr Mates organised or took action, or threatened to do so, with intent to coerce Kane to employ, to engage or to designate, a person as on-site labourer with occupational health and safety responsibilities.  It is common ground that such a person would, if so employed, engaged or designated, be a building employee or a building contractor.  The respondents defend the case on the factual proposition that Mr Mates did not organise or take any such action, or with such an intent, and did not make any such threat.

8                     Section 38 of the BCII Act provides as follows:

A person must not engage in unlawful industrial action.

To be “unlawful industrial action”, the conduct in question must first be “building industrial action” as defined in s 36 of the BCII Act, namely conduct which is –

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

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

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

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

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

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

but does not include:

(e)        action by employees that is authorised or agreed to, in advance and in writing, by the employer of the employees; or

(f)        action by an employer that is authorised or agreed to, in advance and in writing, by or on behalf of employees of the employer; or

(g)        action by an employee if:

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

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

The applicant says that the cessation of work on the site on 31 July 2006 was the result of a ban, limitation or restriction within the meaning of par (b) of this definition, and that Mr Mates was involved in it within the meaning of s 48(2) of the BCII Act, to which I shall return in due course.  The respondents deny that there was a ban etc; or, if there was, they say that Mr Mates was not involved in it.  They also say that, if there was a cessation of work, it was based on a safety concern of the kind to which par (g) of the definition refers.  Additionally to the requirements of the above definition, the “building industrial action” must be “industrially-motivated”, “constitutionally-connected” and not “excluded action” within the meaning of s 37 of the BCII Act.  The respondents put the applicant to his proof in relation to those additional requirements. 

9                     Each of ss 38 and 43 of the BCII Act is a “Grade A civil penalty” provision.  This means that, upon finding that a contravention has occurred, the court may impose a penalty of up to 1,000 penalty units ($110,000) in the case of a body corporate and of up to 200 penalty units ($22,000) in the case of an individual: BCII Act, s 49.

THE EVIDENCE

10                  Construction work at the site commenced in May 2006.  Early progress had been delayed to an extent by unforeseen problems with the suitability of the ground to support the intended structure, the result of which was that a larger than anticipated quantity of the existing soil had to be removed and replaced with something described by Mr Leonard as “mudstone”.  Then the concrete pads for the steelwork were laid by a business called Northwest Concrete (“Northwest Concrete”).  On Friday 28 July 2006, the job had reached the stage of near readiness for the erection of the steel columns that were to form an element of the framework for the extension.  The steelwork was to be supplied and erected by Barra Steel (Vic) Pty Ltd (“Barra Steel”), which in turn had further subcontracted the erection of the steelwork to B.V. Rigging (Australia) Pty Ltd (“BV Rigging”).  Barra Steel had also engaged a boilermaker to carry out certain welding operations made necessary by the circumstance that the new structure was to be an extension to, and thus had to be joined to, the existing warehouse. 

11                  Mr Leonard said that the boilermaker had commenced working on the site on 21 July 2006 (which he mistakenly supposed was the Monday prior to 31 July).  Mr Leonard, whose responsibility it was to ensure that subcontractors were on site when required by the construction program, said that he had arranged for Barra Steel to commence erecting the steelwork on 31 July 2006, and to proceed until that aspect of the job was completed.  He had also made direct contact with BV Rigging to ensure that its crew of erectors were on the site on 31 July 2006.  His arrangement with BV Rigging was also that the erectors would work on the site until their aspect of the job was finished.

12                  There were four sheds on the site: a site manager’s office; a lunch room; a shed which constituted the change room and, in a screened-off section, the first-aid room; and the toilets. 

13                  On Friday 28 July 2006 Mr Mates visited the site.  In the course of seeking out the site manager (Mr Leonard, although not then known to him by name), Mr Mates observed the condition of the site sheds.  He said that they were “in an appalling state”.  The first shed which he saw was the change room and first-aid room.  Mr Mates said that the shed was “in a bad state of neglect”.  He said that there were tools – spades, shovels, picks and the like – in the first-aid room, and that there was “construction material” – “cement and just general bolts and all that sort of business” – on the floor and to an extent on the first-aid bed itself.  There was no first-aid box in the room.  Mr Mates said that the room was “in a very poor state of affairs in regards to the cleanliness of it”, by which he meant that the room was “filthy”.  Particularising, he said that there was “mud all over the floor, [and] dust all over everything”.  It appeared obvious to Mr Mates that the room had never been cleaned.

14                  The next shed that Mr Mates observed was the toilet shed.  He said that the toilets were “filthy”.  He said that there was “mud all over the toilets”.  It was obvious to him that the shed had not been cleaned “in a considerable period of time”.  He said that “the bowls were disgraceful”.  He said that the washbasins had not been cleaned and that there were “towels all over the floor”.  He added that “there was mud all over the floor”.  It was obvious to Mr Mates that the toilets were “in a state of neglect”.

15                  Mr Mates next observed the lunch shed.  There he found garbage bins without lids which were full and overflowing.  From the size of the job, Mr Mates estimated that the bins had not been emptied “for quite a considerable period of time because the amount of rubbish that had accumulated was quite significant”.  He also said that this shed was “full of mud”.

16                  After completing his observation of the site sheds, Mr Mates found Mr Leonard in conversation with an organiser from the plumbers’ union, Norm Kelly.  According to Mr Leonard, Mr Mates asked who was the occupational health and safety representative for the site.  Mr Leonard said that he was himself that person.  Mr Mates asked who was the worker who attended to matters of first aid.  Mr Leonard said that he was himself that person.  Mr Mates asked who was the “peggy” for the site.  Again, Mr Leonard said that he was himself that person.  Mr Leonard’s evidence was that Mr Mates then said that he “would probably prefer to have a labourer on site as an OH&S rep for the blokes”.  Mr Leonard replied that he did not have any control over labour with Kane, and that Mr Mates would have to speak to the project manager, Mr Dawson.

17                  Mr Leonard said that Mr Mates did not broach the subject of health and safety on site.  When asked in chief how the meeting with Mr Mates concluded, he said:

Basically I was told if I didn’t have a labourer there by Monday morning that my job would be shut down, and I expressed to Mr Mates that it’s not in my control, speak to John Chambers and to Howard Dawson.  I’m only a site manager.

The respondents challenged the reliability of this evidence by reference to a written statement made by Mr Leonard on 23 August 2006, and witnessed by the applicant, which they tendered.  Before setting out the passage in that statement upon which the respondents specifically rely in the present context, I should refer to the way the matter was introduced by their counsel.  The cross-examination of Mr Leonard proceeded as follows:

Now, you gave some evidence – you were asked by the ABCC, the Building and Construction Commission, to provide a statement about the events of 28 July and 31 July, weren’t you?‑‑‑Yes.

Okay. And I think the first one of those is in – I think you provided two, is that right?‑‑‑I provided one and then they came out and met me again and wanted some clarification on some phrases or.

Okay.  And your first statement that you provided was in August 2006?‑‑‑Yes.

Only weeks after the ‑ ‑ ‑?‑‑‑Yes.

‑ ‑ ‑ relevant events.  And did they tell you that it was important that you tell the truth in everything you say to them and I think – withdraw that, your Honour.  And did they also say that you could be prosecuted if you didn’t tell them the truth?‑‑‑Yes, I think so, yes.

All right.  So, you were careful when you spoke to them ‑ ‑ ‑?‑‑‑Yes.

‑ ‑ ‑ that you told them ‑ ‑ ‑?‑‑‑As much as I could recall, yes. 

‑ ‑ ‑ everything as best you could recall at that time and this is only weeks after the event, isn’t it?‑‑‑Yes.

All right.  And were you also to tell them - confident that you told them all of the relevant matters that you could think of?‑‑‑Yes.

[At this point the statement was identified in the Court Book.]

….

Now, you gave some evidence earlier today that on the Friday, Mr Mates, after discussions with you, said that if you didn’t have a labourer in place by Monday he would close the site down?‑‑‑Yes.

Do you recall giving that evidence?‑‑‑Yes.

You haven’t included any reference to that in your statement though, have you?‑‑‑Obviously not.

So, is it possible the evidence you gave earlier was incorrect?‑‑‑It’s just what I recall at the time, so - at the moment, so.  He was talking to John Chambers ‑ ‑ ‑ 

Well ‑ ‑ ‑?‑‑‑ ‑ ‑ ‑ about ‑ ‑ ‑ 

You have given some – you have provided – what you have said was that accurate statement ‑ ‑ ‑?‑‑‑Yes.

And he described the events on 28 July and makes no reference to him saying that?‑‑‑Well, I would like to ‑ ‑ ‑ 

Now, what I’m putting to you is he didn’t say it.  Do you agree or disagree?‑‑‑Obviously it’s not written in my statement, so, possibly, yes.

The passage in the statement which was inconsistent with Mr Leonard’s evidence as set out above was the following:

Bobby asked why we did not have an OH&S representative on site.  I explained to him that I hold the relevant OH&S qualifications.  Bobby went on to say that he did not think that this was good enough and that he wanted an OH&S representative, either a Kane employee or from the men on site to be in place by Monday.  I stated he would have to speak to either Howard Dawson or John Chambers as I don’t control the Kane labour on site.  Bob MATES stated that he wanted to see this occupation health and safety representative on site or that “Kane would have some problems”.  The two men were in the site office for approximately 1 hour and left.

According to Mr Leonard’s statement, Mr Mates said only that he wanted to see an occupational health and safety representative on the site by the following Monday (31 July), or “Kane would have some problems”.  Mr Leonard accepted that what he had written in his statement was most likely the more reliable rendition of what Mr Mates had in fact said.

18                  Mr Mates gave a quite different version of his conversation with Mr Leonard on 28 July 2006.  He said that, after having introduced himself, he gave Mr Leonard the benefit of his opinion as to the condition of the site amenities and “the general condition of the job in regards to safety”.  He told Mr Leonard that “it was bad, … it was unsafe, … it was full of water, it was full of mud, it was dirty, it was unclean, it was unkempt”. According to Mr Mates, Mr Leonard agreed.  Mr Mates said that there was no reason for the amenities to be in the condition that they were, and again Mr Leonard agreed.  Mr Mates said that Mr Leonard “may need someone to give him a hand with the safety”.  When Mr Mates asked who was doing what on the job, Mr Leonard said that he himself was “doing everything on the job”.  When asked in chief whether Mr Leonard had said what he meant by this, Mr Mates said:

Basically, he was wearing about 27 hats, … he was the site manager, he was the peggy, he was the first aid, he was the OH&S and, by his own admission, he either didn’t want to do it or basically couldn’t do it.

Mr Mates gave evidence that Mr Leonard accepted that the job was not in a good condition, but said that he could not ask Mr Dawson for help because it was a small job.  Mr Mates considered that Mr Leonard was probably “pretty weak” in expressing his needs to Mr Dawson.  So Mr Mates said that he would himself ring Mr Dawson.

19                  Mr Mates categorically denied that he told Mr Leonard that he wanted an occupational health and safety representative to be engaged on the site.  He denied also that he had said that there would be problems if Kane did not engage such a representative by the following Monday.  He adhered to his evidence that the substance of the complaint he made to Mr Leonard related to the condition of the site, and particularly of the amenities, and that Mr Leonard himself needed assistance with all the tasks he was being required to perform.  Under cross-examination, Mr Mates said:

I raised the issue that the job was in an appalling state, the sheds were in an appalling state but he indicated to me that he wasn’t coping with the job, he couldn’t do everything.  I asked him:  why don’t get [sic] you get some help?  And he said:  I can’t.  They won’t give me any.  And I said I’ll take it up with Dawson and he gave me Dawson’s number.

Mr Mates rejected the proposition that this evidence was just a “gloss” over his real position which was that an additional labourer needed to be employed as occupational health and safety representative for the site.

20                  Mr Leonard said (in his evidence) that he cleaned the toilets daily.  Under cross-examination, he agreed that he could not say that he did so “every day of every time I have been on a job”, but to the best of his knowledge the toilets were cleaned every day.  He agreed that there may have been days when they were not cleaned, but he could not recall them.  The cross-examination continued:

And I put to you that the toilets had mud all throughout the floor on them and hadn’t been cleaned for several days on 28 July 2006.  Do you recall or don’t recall?‑‑‑I don’t recall.

Mr Leonard said that he disinfected the lunch facilities on a regular basis.  He said that the bins in the lunch room had lids, but when counsel put it to him that there were no lids, Mr Leonard said that he could not recall.  Likewise, when it was put to him that the bins were “overflowing with rubbish”, Mr Leonard said that he could not recall.  The cross-examination continued:

And I put to you that the lunchroom also had mud all over the floor and – on 28 July, that is – and there was also rubbish all over the lunchroom.  Do you recall or don’t recall?‑‑‑I don’t recall.  I can’t see it happening because I cleaned them on the Friday before [Mr Mates] turned up.

But you don’t recall?‑‑‑I don’t recall.

Mr Leonard said that there was a first-aid kit on site.  It had his name and mobile phone number written on it.  He agreed that it was “possible” that it was in the site office rather than in the first-aid room as such.  Mr Leonard said that there was a sink and washbasin in the first-aid room, with hot and cold running water.  He said that there was a resuscitation mask in the first-aid kit.

21                  What Mr Mates proposed to say about his conversation with Mr Leonard on 28 July 2006 was put to the latter in cross-examination as follows:

Now, staying on 28 July, and I appreciate it was some time ago, I put to you that, when you saw Mr Mates on that day, one of the first things he said to you was:

The sheds are filthy and the first aid is a disgrace.  Who’s doing the cleaning, and who’s your labourer and who’s your OH&S representative.

 ?‑‑‑I can’t recall that.

You can’t recall.  It’s possible that he may have said that.  And that you said in response that you were the OH&S representative, and you were the labourer?‑‑‑Yes.

And I also put to you that when Mr – Mr Mates then said that, in his view, you needed some extra help with peggy work and OH&S rep work.  Do you recall him saying that?‑‑‑No, I don’t.

And, again, you say it’s possible that he may have said that?‑‑‑It’s possible. 

All right.  And I put to you that you agreed with him, that some extra help would be a good thing.  Can you recall that or not?‑‑‑Can’t recall that.  I can’t recall that.

Okay.  Again, you – it may have been said, you just can’t recall?‑‑‑Yes.  It’s two and a half years ago.

The only concern about occupational health or safety that Mr Leonard recalled Mr Mates expressing was the need to employ a labourer to attend to such matters.

22                  Mr Leonard was further cross-examined as follows:

Did he say to you that, look, it’s no good that you’re the OH&S rep because, when you’re working in the office, who’s going to be watching the boys on the site.  Did he say that to you?‑‑‑Possibly, yes.

Well, I’ll put it to you he did say that?‑‑‑Okay, yes, yes.

He did say that, you agree?‑‑‑Yes, something – yes, I don’t know whether it was those words, but, yes, possible.

Words like that he said to you?‑‑‑Something like that, yes.

With reference to his evidence in chief that Mr Mates had said that he would “prefer” that there be a labourer on site, Mr Leonard accepted that he probably did not respond by saying:  “No, I don’t need one, I’m fine, thanks”.  Counsel for the respondents put it to Mr Leonard that Mr Mates had said that he would ask for a labourer for the site, and Mr Leonard responded that Mr Mates “may have” said that.  Mr Leonard could not recall Mr Mates saying that an occupational health and safety representative need not be a new employee, but could come from one of the workers already on the site.

23                  Mr Kelly also observed the condition of the sheds on 28 July 2006.  He said of the lunch room that there was “mud everywhere”, and that the bins were overflowing.  He said that there were a lot of tools, and there was a lot of rubbish, in the first aid room.  He was to an extent also involved in the conversation between Mr Leonard and Mr Mates on 28 July 2006; more so perhaps initially.  When asked in chief what Mr Mates had said, Mr Kelly said that there was a “conversation” to the effect that the job needed an occupational health and safety representative.  He said that Mr Mates expressed his views as to the condition of the site.  According to Mr Kelly, “[Mr Mates] wasn’t happy with the condition of the site, mud, you know”.  Mr Kelly himself suggested that Mr Leonard could not be “in the shed running the job and ordering equipment and having the blokes out there on the job”.  Mr Mates expressed a similar view.  Mr Kelly gave evidence that Mr Leonard “was sort of agreeing with us that he probably needed a bloke”.  Mr Kelly was taken to Mr Leonard’s evidence that Mr Mates had said that there must be an occupational health and safety representative engaged by the following Monday, and responded that “the conversation was we needed – the delegate – the job needed to have a safety rep, but as far as having one by Monday I don’t recall that”.  Mr Kelly did not hear Mr Mates say that he wanted to see an occupational health and safety representative on site, or Kane would have some problems.

24                  Neither Mr Leonard nor Mr Mates made any written record of their conversation.  Under subpoena, Kane produced its site diary for the period which included that day.  The diary was tendered by the respondents.  There was no page which related to 28 July 2006.  There were no entries between 25 July and 30 August 2006.  The tender of the diary occurred after Mr Leonard had given his evidence and been excused.  There was no suggestion that he be recalled for the purpose of explaining, if possible, the substantial gap in the sequence of entries in the diary.  Mr Chambers, who produced the diary and was asked about the gap, could not explain it.  On the respondents’ side, Mr Mates gave evidence that he was the union organiser for a sector to the north-east of Melbourne which extended clockwise from Plenty Road to the Eastern Freeway.  In the course of his work, he would make 300 or more site visits per year.  He made no written record of his visit to the site on 28 July 2006, nor of his conversation with Mr Leonard. 

25                  After his initial conversation with Mr Leonard on 28 July 2006, Mr Mates rang Mr Dawson.  According to Mr Dawson, Mr Mates asked him who was the occupational health and safety labourer on the site, to which Mr Dawson responded that they did not have one.  He explained that this was due to the size of the project:  it did not warrant a labourer.  He explained to Mr Mates that Mr Leonard held an occupational health and safety certificate, and that Kane’s obligations were thereby fulfilled.  He added that Mr Leonard also held a first aid certificate.  Mr Mates said that that was not good enough, and that they needed a labourer on site whether the project was worth $1m or $100m.  He said that project size was irrelevant to the need for a labourer on site.  Mr Dawson reiterated that, considering the size of the project, the site did not warrant a labourer.  He took Mr Mates’ phone number, and said that he would get back to him.  Mr Mates said that he wanted to have a meeting about the matter on Monday, but that he wanted the labourer in place straight away.

26                  When it was put to Mr Dawson that Mr Mates had expressed a concern about the lack of a person to clean the amenities, an occupational health and safety person to do first aid and someone to assist Mr Leonard, he (Dawson) said that he did not “exactly recall”.  But he did recall discussions in which he advised Mr Mates that Mr Leonard “held” appropriate occupational health and safety training and first aid training.  When it was put to Mr Dawson that Mr Mates had told him that the toilets and the lunch room were dirty and that the first aid room was being used for storage, Mr Dawson said that he did not “wholeheartedly recall” Mr Mates saying that, but that he may well have.  It was also put to Mr Dawson that Mr Mates had told him that an occupational health and safety representative could be elected from people who were already on site, a statement which Mr Dawson did not recall.  Under cross-examination, Mr Dawson reiterated that he recalled Mr Mates asking for there to be an occupational health and safety representative on site by the following Monday.

27                  Mr Mates’ recollection of this conversation differed from that of Mr Dawson.  He said that, after introducing himself, he told Mr Dawson that he was on “his job”, and Mr Dawson asked him what the problem was.  According to Mr Mates, he told Mr Dawson the job was in a terrible condition, that there was water everywhere, there was mud everywhere and that he did not believe that Mr Leonard is coping very well with all the duties that he had been asked to perform by Kane.  He said that Mr Dawson “made a derogatory remark in regards to Leonard’s abilities” and said that it was Kane’s policy not to have a labourer on a job that was worth less than $2.1 million.  If anybody was going to change that policy, it would have to be Mr Chambers.  Mr Mates denied telling Mr Dawson that there had to be an occupational health and safety representative on site by the following Monday.  Mr Mates substantially adhered to this evidence under cross-examination.  However, he did say that, in conversation with Mr Dawson, he had asked for “somebody with OH&S capabilities”.

28                  Although Mr Kelly was not a party to the phone conversation between Mr Mates and Mr Dawson, he was present at the time and, after the completion of the conversation Mr Mates told him broadly what had been said.  According to Mr Kelly, Mr Mates said that Kane had “suggested that the job was too small and it was under 2.1 and they were happy with just having the one guy there”.

29                  The next thing that happened on 28 July 2006 was that Mr Dawson telephoned Mr Chambers.  According to Mr Dawson, he told Mr Chambers that Mr Mates was on the site and had requested that a labourer be engaged there.  He said that he had told Mr Mates that the project was not big enough to warrant it.  Mr Chambers said that he would give Mr Mates a call and talk to him further about it.

30                  Without objection, Mr Chambers also gave evidence of his telephone conversation with Mr Dawson.  He said that Mr Dawson told him that Mr Mates (in company with Mr Kelly) was on the site, and had requested Kane to place a labourer on the project to act as a general labourer, occupational health and safety representative and first aider.  Mr Chambers asked Mr Dawson if any other issues raised had been raised in relation to the project, and was informed of what he (Chambers, in his evidence) described as “some minor issues relating to the operation of the job”, such as the identity of the plumbers and the status of their industrial agreements, a stormwater pipe that needed to be fixed and the arm of an excavator to be “chopped”.  Mr Dawson told Mr Chambers that Mr Mates had said that “if a labourer wasn’t provided to the site by Monday … they would be coming back to close the job.”  Mr Chambers said that he would give Mr Mates a call.

31                  The respondents tendered a written statement made by Mr Chambers on 7 September 2006, and witnessed by the applicant.  In that statement, Mr Chambers referred to his telephone conversation with Mr Dawson, and said only that Mr Dawson had said that Mr Mates had requested the provision of a labourer on site to act as a “peggy” and as occupational health and safety representative.  The statement said nothing of a threat by Mr Mates to close the job.  Mr Chambers made another statement about the same conversation on 3 April 2008, but again did not mention any such threat.  It was put to Mr Chambers in cross-examination that these were important matters and that, if there had been any such threat, he would surely have referred to it in one or both of his statements.  It was suggested that his first statement, made on 7 September 2006, was more likely to be reliable than his unaided recollection, at trial, of an event which was then more than 2 years in the past.  At this point, Mr Chambers revealed for the first time that he had made a file note on 1 August 2006 of the telephone conversation which he had had with Mr Dawson on 28 July 2006.  He believed that his file note was more accurate than the statement he made on 7 September 2006.  He could not explain why he made no reference to the threat in the statement, nor why he did not refer to the file note at the time.

32                  Later on 28 July 2006 Mr Chambers telephoned Mr Mates as he had told Mr Dawson he would.  According to Mr Chambers, Mr Mates repeated the request for Kane to provide a labourer on the project to act as a general labourer, an occupational health and safety representative and a first aider.  Mr Chambers said that there was no labouring work on the job, and that due to the nature of the job there was no requirement for Kane to have a labourer there at that time.  As it happened, Kane had another job “five minutes around the corner”, and Mr Chambers offered that, if Mr Mates had concerns over occupational health and safety, a labourer from that other job could periodically come to this site to “view any concerns that may exist”.  He said that Mr Mates was not interested in that expedient.  Mr Chambers described the ending of the conversation with Mr Mates as one in which they “agreed to disagree” – Mr Chambers held to his line that there was not enough work for a labourer, and Mr Mates said that he would be back to the job on the following Monday.

33                  Under cross-examination, Mr Chambers was again taken to his statement made on 7 September 2006, which contained the following text about his telephone conversation with Mr Mates:

This conversation was centred on MATES belief that we needed a labourer to act as a Peggy and an OH&S representative on site.  I explained to him that this was a small site and that there would be insufficient work to justify the provision of such a labourer.  In the end we agreed to disagree.  MATES stated to me that he would be returning to the site on Monday. 

Mr Chambers accepted that nowhere in his statement had he made any reference to Mr Mates saying that he would shut the site.  However, when it was further put to him that Mr Mates had never said such a thing in that conversation, he responded:  “I believe he did.”  Again, Mr Chambers relied upon his file note, which he had not consulted when making his statement.  Later, however, when the court sought to clarify this aspect with Mr Chambers, and to have him distinguish between his conversation with Mr Dawson and his conversation with Mr Mates, he said that he did not believe that Mr Mates “said directly to me that he would shut the job”.

34                  Mr Mates gave evidence that, when Mr Chambers rang him, he expressed his concerns as to safety on the job, and with respect to “getting some help in that department for the period of time that I thought was crucial to the job”, by which Mr Mates meant the time when the job was “in erection, when they were putting up the steel … when … [there were] cranes on the job and … heavy machinery”.  He said that he raised with Mr Chambers his concerns about the amount of water and mud on the job, the general untidiness of the job and the state of the amenities.  According to Mr Mates, Mr Chambers said that he had Mr Leonard to do that job, and that Kane did not put labourers on a project that was worth less than $2.1million.  Mr Chambers offered to have a labourer from another site visit this site on a periodic basis and clean the sheds.  Mr Mates told Mr Chambers that that was not really good enough, and that he would return to the site on the following Monday.  Under cross-examination, Mr Mates was not dislodged from his insistence that he did not require the employment on site of a labourer as occupational health and safety representative, and for the other tasks associated with that.  His position as put to Mr Chambers was only that Mr Leonard should be given some assistance.

35                  Monday 31 July 2006 was the day upon which the erection of steelwork on the site was scheduled to commence.  Mr Leonard arrived on site at about 6.30 am.  At about 6.40 am, a crane crew from BV Rigging arrived on site.  At about the same time the riggers themselves – about five or six of them according to Mr Leonard – arrived.  So did a flat-bed truck carrying the steel columns.  Also present by 7.00 am were “a couple of concreters” (employed by Northwest Concrete) and the boilermaker, Daniel Rand.  Work commenced at 7.00 am.  The concreters were not concerned in the erection of the steel.  Mr Leonard could not recall what they were in fact doing on 31 July 2006; when concrete was not being poured, their role was to assist the carpenter with the construction of formwork for future pours. 

36                  It seems that there was a deal of rain at the site over the weekend of 29-30 July 2006.  According to Mr Leonard, when the workers came into the sheds on the morning of 31 July to have coffee, they muddied the floor to an extent.  But Mr Leonard said the amenities were clean.  He said that he “wouldn’t say they were disgusting.  There wasn’t rubbish everywhere, just footprints on the ground”.  Mr Mates arrived on the site at about 8 am on 31 July 2006.  According to his evidence, nothing had been done to improve the condition of the site sheds – they were in the same condition as when he saw them on 28 July. 

37                  Mr Mates then spoke to Mr Leonard.  According to Mr Leonard, Mr Mates told him that he had spoken to Mr Chambers, and had been told that there was not going to be a labourer on the job as an occupational health and safety representative, since there was not enough work to keep two Kane employees going.  Mr Leonard’s evidence was that Mr Mates said that he was going to shut the job down, and asked him (Leonard) to call the workers then on site into the shed.  In his own evidence, Mr Mates agreed that he told Mr Leonard that he had spoken to Mr Chambers, that there had been “no outcome” and that “obviously nothing has changed in regards to getting you some help in regards to keeping the job up to scratch”.  According to Mr Mates, Mr Leonard agreed with those propositions.  Mr Mates agreed that he asked Mr Leonard to call the workers together in the shed.  However, he rejected the suggestion that he had told Mr Leonard that he was going to shut the job down.

38                  As I have mentioned earlier, the respondents tendered a statement made by Mr Leonard on 23 August 2006.  That statement contains the following paragraph:

Bob MATES asked me if there was a labourer OH&S representative on the site.  I informed him that there was no labourer OH&S representative.  Bob instructed me to call the blokes into the shed.  I did as he instructed.  Whilst the blokes were coming in Bob stated that he had a conversation with John Chambers, who is our Managing Director.  Bob MATES said that this conversation was about putting the labourer on.  He stated that John CHAMBERS had “knocked the deal back” and that he was here “to shut the job down”. 

Without objection, Mr Dawson gave evidence that Mr Leonard had telephoned him from the site to inform him of Mr Mates’ visit.  Mr Leonard told Mr Dawson that Mr Mates had asked him whether a labourer had been put in place on the site, and that he (Leonard) had responded in the negative.  Then Mr Leonard said that Mr Mates had wanted to call a meeting of workers on the site.  Mr Dawson could not recall whether it was in the course of that conversation, but at some point he asked Mr Leonard to make sure that, if labour were to be withdrawn, the workers realised that it was the doing of Mr Mates, not of Kane.

39             The workers on site duly met with Mr Mates in the shed.  Mr Mates gave evidence of the course of the meeting.  He said that there were about 7 or 8 workers present.  When asked in chief what he said to the workers, Mr Mates said:

I spoke to the blokes about my concerns in regards to the safety on the job.  I spoke to the blokes in regards to my thoughts about Leonard’s ability to do the job, his competence, and I spoke to the blokes in regards to the state of the job with the mud and with the general amenities as well.

Mr Mates told the workers that the amenities “were of an appalling nature.  They were dirty, they were muddy, they were unclean.”  As to safety, Mr Mates told the workers that he had “reservations regarding the way the site was being run”, being, as Mr Mates put it, “water and mud”.  He told them that Mr Leonard had confirmed to him that he (Leonard) “was not in control of that building site in regards to the safety aspect of it”.  He said that “there was a general concurrence that there [were] issues on the job”, and that the general feeling was that the site was “a pigsty”.  When asked in chief what he said or did from that point at the meeting, Mr Mates said:

Well, part of my role as an organiser – as a union organiser was to basically ask them to consider relocation until I could get Kane’s to be proactive – a bit more proactive in regard to the safety on the job. …. I asked them to ring their bosses and – ring their bosses and ask the bosses to consider relocation because of the state of the job.

Mr Mates said that if the workers had been “happy with the job”, they would have expressed that to him, and would have had no reason to ring their bosses.  However, according to Mr Mates, most of the workers went out to make a phone call.

40                  Mr Mates was not shaken from this evidence under cross-examination.  He denied that he told the workers that he was shutting the job down.  He denied that he told them that Kane had been warned on the Friday about the state of the amenities and the absence of a labourer as occupational health and safety representative.  He denied that he told them that their options were either to be relocated or to go home.  He denied that he presented them with a fait accompli, whereby no work was to be done on the site that day.  He adhered to his evidence that, at the meeting, he expressed his safety concerns to the workers, and they expressed their concerns to him.

41                  As I have said, Mr Rand was the boilermaker who was on the site on 31 July 2006.  He was self-employed.  Called by the applicant, he gave some evidence under cross-examination as to the condition of the site sheds, and of the site generally, on 31 July 2006.  When it was put to him that the site was muddy, Mr Rand replied that it had been raining, and that “there was a bit of mud around”, adding “[t]here is on all building sites”.  He agreed that there was “a bit of mud” in the amenities, adding “[y]ou have got to expect it”.  Asked whether the amenities were “messy”, Mr Rand said:  “They weren’t the worst I have ever seen in my life but they weren’t the best I have ever seen in my life either.”  Asked to rate the amenities with those he had seen elsewhere, he said:  “Average.  Bit below average maybe.”  Mr Rand confirmed that there was a first aid room on site, but, never having had the need to have resort to it, he could not say whether it had been used for the storage of tools.  He accepted that the toilet and lunch room were “muddy and messy”.  He had not seen them being cleaned for the time that he was on site.

42                  Mr Rand was one of the workers in the meeting addressed by Mr Mates on 31 July 2006.  He had only the broadest of recollections as to what occurred on that day.  He recalled someone from the Union coming to the site;  he recalled that the workers were told to stay in the sheds (although he introduced the fact that it was raining on and off, which to an extent explained why work was not being performed);  he recalled being addressed by the person from the Union; and he recalled that this person informed the workers at the meeting something “along the lines of we were to sit in the smoko sheds for a while … while some things were sorted out”, namely “things that were raised with the builder on the Friday [that] hadn’t been sorted out or something”.  When he was pressed to recall further particulars of what the person from the Union had said, Mr Rand said:  “I can’t remember whether it was him that said it or it’s just because I have spoken to other blokes since then that the facilities on site …”; at which point Mr Rand paused, and when pressed to continue, he said:  “… and [sic – an?] OH&S rep on site.”  Under cross-examination, Mr Rand agreed that the workers were not “actually told the site was closed”; that they were not told to leave the site; and that the person from the Union did not say that he was shutting the job.  Mr Rand said that he rang Peter Deanrea from Barra Steel, for whom he was working at the time, and explained to him that there was not any work going on at the site.  He said there was something going on between the union and the builder.  He asked Mr Deanrea what he wanted him to do.  There was no further work for Mr Rand, so he went home.

43                  On one view, Mr Rand’s recollection was so limited, and so broad, as to make his evidence of little value to the court.  I do not, however, take that view.  I am not surprised that someone in Mr Rand’s position would recall the events of 31 July 2006 in the very general way that he did.  Mr Rand struck me as an honest and forthright witness, but one whose recall of events which seemingly meant little to him did not descend to the detail perhaps claimed by those who were directly involved in those events.

44                  The respondents called Mr Mario De Riva, who described himself as having been at the time a “director” of Northwest Concrete.  He was contracted to do the concreting at the site.  Previously to the events with which we are here concerned, they had laid the concrete pads for the steel columns.  At the end of July 2006, they were at the stage of setting up for the later pouring of concrete for the floor of the new extension.  By then, Mr De Riva had been to the site about six times.  In his evidence, he gave his recollection of the site as follows:

My first recollection was, it was a very small site.  There was – I noticed, because the first thing I would look for when I would go to the site would be access for concrete trucks to provide access, so the – for concrete trucks and concrete pumps and machinery to set up.  I noticed that the access was fairly tight because of the fact that the existing building or the neighbouring building was storing machinery outside of the site.  So, I noticed it was fairly tight and confined and also that I think Kane, the builder itself, was storing or dumping a lot of excess spoils from, maybe the plumbing works, in an adjacent area in front of the car park of the site, so it was fairly tight and confined.

On the subject of the amenities, Mr De Riva said:

The amenities on the site, to my recollection, were fairly borderline, as in the – I just recall there being a – one site shed, which I think was used as a site office, as well as a dedicated first aid room and there was a separate building which was used as a temporary toilet.  So, there wouldn’t have been more than two site amenities on the site at the time. ….  I recall the state of the amenities being fairly messy, rubbish bins being full, a lot of equipment and gear being placed in the site amenities due to the lack of space.  Fairly ordinary actually, yes.

Comparing the amenities with those he had seen at other building sites, Mr De Riva said that they were “below average”.  He recalled the amenities being used for storing certain equipment, which he assumed belonged to contractors or the builder.  Possibly by way of contrast with his statement set out above that there was a dedicated first aid “room”, Mr De Riva said that he did not recall a dedicated first aid “facility”.

45                  On the morning of 31 July 2006, Mr De Riva received a telephone call from one of his workers at the site.  The worker first spoke briefly to Mr De Riva.  In his evidence, Mr De Riva did not leave it altogether clear what the worker said to him in that brief conversation.  Indeed, in chief, Mr De Riva did not even mention that the call had come from the worker, saying that it was Mr Mates who had called him.  However, under cross-examination he accepted that the worker had called him, and that the worker had told him that the job had been shut down by Mr Mates.  The worker then handed the phone to Mr Mates, so that he could speak to Mr De Riva.  In chief, Mr De Riva said that Mr Mates “felt the site … seemed to be in an unsafe manner” and that Mr Mates –

… suggested that the site lacked an OH&S representative at the time and the one – the builder’s site foreman was currently doing the OH&S role and also the role as a site foreman and site peggy as well, so he had multiple roles in it.  That’s why he had a concern about the amenities and certain other issues that I can’t recall.

Mr De Riva said that Mr Mates’ concern about the amenities was –

… that there was no dedicated first aid room on the site, that the workers’ site amenity was being used as a storage room for the builder and just basically a lack of amenities for safety ….

Mr De Riva told Mr Mates that, if there was a concern on site, he would have no hesitation in relocating his workers, due to the fact that he always saw safety as paramount, and a very serious issue.  He took Mr Mates’ statement as indicating that the site did not seem to be “quite up to scratch”.  So he decided to relocate his workers to another site.  He stressed that this was his own decision.  Mr Mates’ own evidence of this conversation was that he asked Mr De Riva if he could “relocate” the workers.  Mr De Riva responded that he could.

46                  According to the evidence of Mr Leonard, when the meeting finished he happened to be on the telephone to Mr Dawson.  Mr Mates (or one of the workers) told Mr Leonard that the workers were being “relocated”.  Mr Leonard handed the phone to Mr Mates, and Mr Dawson told Mr Mates that Kane was (in Leonard’s words) “going to take him to the commission”.  The “commission” referred to was the Australian Industrial Relations Commission (“the Commission”) under the Workplace Relations Act 1996 (Cth) (“the WR Act”).  Mr Dawson confirmed that he had a phone conversation with Mr Leonard, which he recalls as being a different, and later, one from that in which Mr Leonard had told him that Mr Mates had returned to the site.  In this second conversation, according to Mr Dawson, it was he (Leonard) who informed him that Mr Mates had said that the workers were being relocated.  Mr Dawson said that Mr Leonard did not give him the “exact reasons” for the relocation of the workers, his only information being that it was because Kane had not “carried out [Mr Mates’] request”.  Mr Dawson also said that he informed Mr Leonard that Kane would be pursuing the matter in the Commission.  He was not asked, and he did not say, whether he had spoken to Mr Mates at this stage.  For his part, Mr Mates did not recall speaking to Mr Leonard after the meeting.  He said that he was aware that Kane was taking the dispute to the Commission, but he did not know when he became so, adding:  “But it would have been after [the] events.”

47                  Mr Leonard was informed by some of the workers themselves that they were being sent to other sites by their respective employers.  It was common ground that, subject only to the unloading of the truck which was in the course of delivering steel, no further work was done on the site that day.  The employees of Northwest Concrete were taken off site by Mr De Riva, in circumstances to which I have referred.  There was no direct evidence of the communication which the employees of BV Rigging (they constituting the majority of the workers on the site that day) made to their employer, but it seems (from the evidence of Mr Mates) that they did make a phone call and, as I have said, they did leave the site. 

48                  Mr Leonard’s statement of 23 August 2006 also deals with the course of events on 31 July 2006.  It contains the following paragraphs:

At this point I rang my manager, Howard DAWSON and informed him of what was happening.  I put the Bob MATES on the telephone to Howard and they had a conversation.  Bob has handed the telephone back to me saying that there was no point to the conversation as he had already had the same conversation with John Chambers.  I spoke to Howard DAWSON and he informed me to tell Bob MATES that they will be taking this to the commission.

Bob MATES went into the meal room and spoke to the blokes.  Bob MATES then came out of the meal room and told me that the blokes were being relocated.  The foreman of Barra Steel asked MATES if he and a bloke from North West Concrete could unload a truck.  Bob MATES agreed to this and they unloaded a truck.  Bob MATES said that he had to leave and go to another site and he stated that if the Kane bloke was not there as an OH&S representative tomorrow we would go through this all again. 

Unlike his evidence in court, in these paragraphs of his statement Mr Leonard does not refer to a phone conversation which involved Mr Dawson (either with himself or with Mr Mates) after the meeting.  Neither does he state that he, or Mr Dawson, told Mr Mates that Kane intended to take the dispute to the Commission.  Otherwise, the statement is broadly consistent with Mr Leonard’s evidence.

49                  Both in his evidence and in his statement, Mr Leonard stated that Mr Mates had said that, if a labourer were not on site as occupational health and safety representative the following day, they would “go through all this again” or “go through the whole thing again”.  Although Mr Mates denied saying this, Mr Leonard was not cross-examined about it. 

50                  On the same day, 31 July 2006, Kane referred the dispute at the site to the Commission.  Mr Mates telephoned Ms Emma Walters, an employee of the union, and requested her to lodge a dispute notification with the Victorian Building Industry Panel, a dispute-settling body in the building industry in Victoria to which I shall refer further below.  He told her that the dispute was about adequate health and safety and the amenities on the job.  He said that he believed there was a breach of the applicable industrial agreement.  Ms Walters lodged a notification, a copy of which was tendered in evidence.  Although dated 31 August 2006, counsel for the respondents submitted, and I accept, that the notification was both completed and lodged on 31 July 2006.  Under the heading “Brief History of the Dispute”, the following was set out on the notification:

There is no dedicated or appropriately qualified occupational health and safety person.

The amenities are not hygienic and are not being adequately maintained such that the breach of appendix e of the enterprise agreement.

Kane Constructions are in breach of Appendix H of the enterprise agreement.

In accordance with appendix e of the agreement, the union gave Kane’s sufficient time to rectify the breaches which were brought to Kane’s attention on 28 July 2006 in the early am.

51                  Also on 31 July 2006, Mr Dawson telephoned “WorkSafe”, with the intention of speaking to a health and safety inspector.  He did that, as he said, “because the job had been … shut down on the pretext of a health and safety issue”.  However, he was unable to speak to an inspector, so he rang the “hotline” number.  He spoke to a person on that line and explained the situation to her.  She said that, from the information Mr Dawson had provided, it was an industrial matter, not a health and safety matter, and that an inspector would not attend the site.

52                  On the following day, Tuesday 1 August 2006, the dispute notified by Kane came before the Commission.  Conciliation occurred, where it was agreed that work would resume on site and that the site would be visited the following day by the Victorian Disputes Board (ie the “Panel” which had been notified by the Union).  That visit took place on Wednesday 2 August 2006.  According to Mr Dawson, the members of the Panel inspected the amenities, with particular reference to the Union’s concerns about mud on the floor and the like.  Mr Mates said that the members of the Panel, representatives of Kane, a representative from the Master Builders’ Association and himself (Mates) “walked around the job and [there] was general agreement that the … amenities weren’t real flash”.  He said, however, that there was still “a sticking point in regards to how we were going to proceed with the general safety on the job in regards to giving Leonard some sort of help”.  The outcome of the inspection was not documented.  Mr Dawson said that the dispute “just seemed to go away”.  Kane held to its line that it would not put a labourer on the site, but it agreed to Mr Mates continuing to monitor the site and to raise such concerns as he had.

THE STATUTORY AND REGULATORY FRAMEWORK

53                  In addition to the BCII Act, there are two Acts of Parliament which, together with instruments made under them, were relevant to the events with which this proceeding is concerned.  The first is the WR Act.  Building and construction work on the site was covered by the National Building and Construction Industry Award 2000 (“the award”), but the operation of the award was (by reason of provisions of the WR Act which do not need to be explored) subject, to the extent of inconsistency, to the terms of any applicable industrial agreement certified under the WR Act.  There were two such agreements which were potentially relevant: the Kane Constructions and the CFMEU Building and Construction Industry Enterprise Agreement 2005-2008 (“the Kane agreement”), which covered the employees of Kane, and the BV Rigging (Aust) Pty Ltd and the Rigger/Steel Erecter CFMEU (Victorian FEDFA and Construction and General Divisions) Collective Bargaining Agreement 2005-2008 (“the BV agreement”), which covered the employees of BV Rigging.    At least relevantly to the present matter, the provisions of these two agreements appear to be identical.  Where there is no need to distinguish between them, I shall refer to them as “the certified agreements”.

54                  The Kane agreement contained a dispute resolution procedure in the following terms:

10.1 A major objective of this Agreement is to eliminate lost time and/or production arising out of disputes or grievances. Disputes over any work related or industrial matter or any matters arising out of the operation of the Agreement or incidental to the operation of the Agreement should be dealt with as close to its source as possible. Disputes over matters arising from this Agreement (or any other dispute related to the employment relationship) shall be dealt with according to the following procedure.

10.2      In the event of any work related grievance arising between the Company and an employee or employees, the matter shall be dealt with in the following manner:

a.         The matter shall be first submitted by the employee/s or his/her employee representative or other representative to the site foreperson, supervisor or the other appropriate site representative of the Company, and if not settled, to a more senior Company representative.

b.         Alternatively, the Company may submit an issue to the employee/s who may seek the assistance and involvement of the employee representative or other representative.

c.         Work shall continue without interruption from industrial stoppages, bans and/or limitations while these procedures are being followed. The pre-dispute status quo shall prevail while the matter is being dealt with in accordance with this procedure.

d.         If still not resolved, there may be discussions between the relevant Union official, or other representative of the employee, and senior Company representative.

e.         The relevant union official commits to make him/herself available to be involved at any stage of the procedure as required, or in respect of any potential dispute.

f.          Should the matter remain unresolved either of the parties or their representative shall refer the dispute at first instance to the Victorian Building Industry Disputes Panel (which shall deal with the dispute in accordance with the Panel Charter).

g.         Either party may, within 14 days of a decision of the Panel, refer that decision to the Australian Industrial Relations Commission (AIRC) for review. The AIRC may exercise its conciliation and/or arbitration powers in such review.

10.3      This procedure shall be followed in good faith without unreasonable delay.

10.4      If any party fails or refuses to follow any step of this procedure the non breaching party will not be obligated to continue through the remaining steps of the procedure, and may immediately seek relief by application to the AIRC.

The “Panel” referred to in cl 10.2.f above was the Panel to which the Union referred its dispute with Kane on 31 July 2006.  A dispute resolution procedure, in almost identical terms, was also contained in the BV agreement. 

55                  The certified agreements placed particular emphasis upon workplace safety.  Part III of each dealt with the subject.  Clause 11(a) provided in part as follows:

The parties to this Agreement shall in addition to ensuring compliance with OH&S legislation as mentioned in Appendix H (including Regulations, and Codes of Practice), implement the best achievable level of health and safety.

Clause 16 set out a detailed procedure for the resolution of safety issues and incidents which arose from time to time.  Subclauses 16.3 to 16.6 were as follows:

16.3          Procedure for resolving issues

16.3.1   As soon as possible after an issue has been reported, the Company’s safety supervisor or another management representative and the health and safety representative must meet and try to resolve the issue.

16.3.2   The resolution of the relevant issue must take into account any of the following factors that may be relevant –

            (a)        whether the hazard or risk can be isolated;

            (b)        the number and location of Employees affected by it;

            (c)        whether appropriate temporary measures are possible or desirable;

            (d)        whether environmental monitoring is desirable;

            (e)        the time that may elapse before the hazard or risk is permanently             corrected;

            (f)        who is responsible for performing and overseeing the removal of the        hazard or risk.

16.3.3   If any party involved in the resolution of the issue requests, the details of the issue and all matters relating to its resolution must be set out in writing by the Company to the satisfaction of all parties.

16.3.4   As soon possible after the resolution of an issue, details of the agreement must be brought to the attention of affected employees in an appropriate manner.

16.4      Direction to cease work

16.4.1   If –

            (a)        an issue concerning health or safety arises at a workplace or from the      conduct of the undertaking of an Company; and

            (b)        the issue concerns work which involves an immediate threat to the           health or safety of any person; and

            (c)        given the nature of the threat and degree of risk, it is not appropriate        to adopt the processes set out in clause 16.3 –

            the Company or the health and safety representative for the designated work group in relation to which the issue has arisen may, after consultation between them, direct that the work is to cease.

16.4.2      During any period for which work has ceased in accordance with such a direction, the Company may assign any Employee whose work is affected to suitable alternative work.

16.5      Inspector may be requested to attend workplace

16.5.1   If an issue is not resolved under clause 16.3, within a reasonable time, or an issue is the subject of a direction under 16.4 that work is to cease, any of the parties attempting to resolve the issue may ask the WorkSafe Victoria to arrange for an inspector to attend at the workplace as soon as practicable to enquire into the issue.

16.5.2      If –

            (a)        the inspector issues a prohibition notice; or

            (b)        otherwise determines that there was reasonable cause for employees                   to be concerned for their health or safety –

an employee who, as a result of the issue arising, does not work for any period pending its resolution but would otherwise be entitled to be paid for that period continues to be entitled to be paid for that period.

16.6      Rectification of Safety Hazard

            16.6.1   Where, because of the existence of a safety hazard, a site has been         stopped for a defined period of time and employees sent off site by       agreement between Site Managers and any combination of Union     Official/s, Health and Safety Committee, those people who remain           on site to do rectification work will be paid at the rate of double time             for all such work.

            16.6.2   This would not be applicable on normal de watering (see clause 34.6.7 hereof) or normal housekeeping work or where a   section of the site has been declared unsafe and normal rectification             occurs whilst the remainder of the site carries on working. It is    agreed that any ‘housekeeping’ work performed on projects is to be         paid at single time rate.

56                  Clause 45 of the Kane agreement provided that amenities were to be provided as prescribed in App E thereof.  Clause 46 of the BV agreement provided that amenities were to be provided as prescribed in App F thereof, but that reference seems to be an obvious typographical error, since App F is concerned with the subject of “Shopping Centres”.  It is App E which deals with amenities, the terms thereof being identical to those of App E of the Kane agreement.  Appendix E in each case commenced with the following paragraph:

The parties agree that it is the responsibility of the Company to ensure that the amenities prescribed by the Code of Amenities are provided as a minimum. Where, however, that standard is not maintained due to an action or event beyond the control of the Company, the Union agrees that the Company should be allowed reasonable time in which to rectify the problem. If the Company acts promptly to rectify the problem, there should be no interruption to work from industrial stoppages, bans and limitations.

The appendix then set out a list of detailed prescriptions, including the following:

1          A uniformly high standard of amenities and facilities such as ablution blocks,         change rooms, crib sheds, etc., shall be provided.

4.8               All facilities are to be cleaned and disinfected on a regular basis.

5.6       Closets and urinals are to be washed daily with disinfectant and kept in clean,       hygienic condition.

Appendix H to the Kane agreement, and App I to the BV agreement (as referred to in cl 11 in each case), were headed “Schedule of Applicable Acts, Regulations & Codes of Practice Relevant to the Construction Industry”.  Each of these appendices opened as follows:

The parties agree that the existing requirements of applicable State and Commonwealth occupational health and safety legislation shall in all cases apply.

In addition it is also agreed that the parties will adopt all current Australian/Worksafe/Industry Standards and Victorian Codes of Practice. Safety practices as set out in occupational health & safety authority “Alerts” will be adhered to.

There followed a list of the Acts, Regulations and Codes of Practice referred to.  In the case of Acts, the list included the Occupational Health and Safety Act 2004 (Vic) (“the OH&S Act”).  In the case of codes of practice, the list included Code of Practice No 13 – “Building and Construction Workplaces” and Code of Practice No 18 – “First Aid in the Workplace”, each made with reference to s 55 of the Occupational Health and Safety Act 1985 (Vic).  A copy of each of those codes of practice was tendered by the respondents.

57                  The award itself also contained provisions of potential relevance.  Clause 11 of the award set out a stepwise procedure for the settlement of disputes. Subclause 11.1.2 then provided as follows:

Where the above procedures are being followed, work shall continue normally. No party shall be prejudiced as to final settlement by the continuation of work in accordance with this subclause. This subclause shall not apply to any dispute involving a bona fide safety issue.

58                  Turning to the OH&S Act, s 21 thereof provided that an employer must, so far as was reasonably practicable, provide and maintain for employees of the employer a working environment that was safe and without risks to health.  Section 26 was concerned with the duties of persons who managed or controlled workplaces, and subs (1) required such a person to ensure, so far as was reasonably practicable, that the workplace and the means of entering and leaving it were safe and without risks to health.  The OH&S Act made provision for the appointment of inspectors.  Section 111 empowered an inspector to issue an improvement notice to a person whom the inspector reasonably believed was contravening a provision of that Act or of Regulations made under it, or who had contravened such a provision in circumstances that made it likely that the contravention would continue or be repeated.  The notice would require the person to remedy the contravention, likely contravention or matters or activities causing the contravention or likely contravention.  Section 112 of the OH&S Act made provision for the issue, by an inspector, of a “prohibition notice”.  Subsection (1) thereof provided as follows:

If an inspector reasonably believes that –

(a)                an activity is occurring at a workplace that involves or will involve an immediate risk to the health or safety of a person; or

(b)                an activity may occur at a workplace that, if it occurs, will involve an immediate risk to the health or safety of a person—

the inspector may issue to a person who has or appears to have control over the activity a prohibition notice prohibiting the carrying on of the activity, or the carrying on of the activity in a specified way, until an inspector has certified in writing that the matters that give or will give rise to the risk have been remedied.

THE ALLEGATION OF A THREAT OF A WORK STOPPAGE ON 28 JULY 2006

59                  Relevantly to 28 July 2006, the applicant’s allegations rely upon statements said to have been made by Mr Mates to Mr Leonard.  There is a dispute between them as to what was said in their conversation on that day.  The absence of any note, by either of them, about the conversation adds to the difficulty of resolving that dispute.  It is true that, on the following Monday, the Union submitted a notification of a dispute to the Building Industry Panel, which notification was completed on the instructions of Mr Mates and provides support for his evidence as to his then perception of the conditions on site, but by then Kane had itself notified (or had made it clear that it intended to notify) the Commission, and the parties’ positions had generally become more formalised and adversarial.  I do not regard that notification as corroborative of Mr Mates’ evidence as to the terms of his conversation with Mr Leonard on 28 July 2006.

60                  The court’s task in deciding which version of the conversation – Mr Leonard’s or Mr Mates’ – is correct is made the more problematic by reason of the rather subtle, yet potentially quite important, differences between them.  Aside from the issue whether Mr Mates threatened to close the job down, the difference comes down to whether he required the employment (or engagement or designation) of a labourer to be the site occupational health and safety representative (as recalled by Leonard) or whether he told Mr Leonard that, given the condition of the site and the amenities, it was apparent that he (Leonard) needed some assistance and that he would make representations to Kane in that regard (as recalled by Mates).  The terms in which Mr Mates recalls the matter (unassisted by notes as he was) strike me as somewhat more developed than are likely to have been the actual words used at the time, particularly if, as Mr Mates insisted, he was quite appalled by the condition of the site sheds, including the amenities.  I am disposed to think that Mr Mates’ evidence represents a euphemistic way of conveying what was probably the direct sense of what he said to Mr Leonard, namely, that the site needed a labourer to discharge occupational health and safety responsibilities and to attend to matters of cleanliness and organisation generally, and that one should be engaged without delay.

61                  The respondents submit that I should accept Mr Mates’ evidence as to the condition of the site sheds on 28 July 2006, and that that evidence provides support for their primary submission that he was the more likely to have emphasised to Mr Leonard the need for some help with respect to the general cleanliness of the site, rather than to have made a direct demand for the employment of additional labour.  Some support for Mr Mates’ position comes from the evidence of Mr Kelly who was also on the site on 28 July 2006.  He corroborated Mr Mates’ evidence that there was mud in the sheds, that the bins in the lunch room were overflowing, and that the first aid room was being used for the storage of tools.  Mr Rand accepted that the lunch room and toilet were muddy and messy, but he made no comment (and was not asked for one) about the state of the bins.  He was unable to say whether the first aid room was used for the storage of tools.  Mr De Riva recalled the amenities being messy, the rubbish bins being full (not overflowing) and the amenities being used for the storage of equipment.  

62                  As I have said, Mr Mates was specific and categorical in the way he described the condition in which he found the site sheds on 28 July 2006.  Mr Leonard, by contrast, for the most part described his general practice of cleaning the sheds, rather than their actual condition at a particular point in time.  When he was taken – repeatedly – to the latter, he tended to respond that he did not “recall”.  I do not take that as an indication of Mr Leonard’s unreliability as a witness.  If his evidence is to be accepted, 28 July 2006 was a normal day, save that Mr Mates visited the site and asked for a labourer to be employed;  and nothing was said about the condition of the site.  I would be surprised if Mr Leonard could give evidence about the state of the floors, the toilets, the bins or the first aid room on a particular day more than two years later.  If Mr Mates’ evidence is to be accepted, by contrast, he observed not normality but a seriously dysfunctional situation.  He is more likely to have remembered that. 

63                  It was not suggested by Mr Mates that he took Mr Leonard on an inspection of the site sheds and directly pointed out to him the matters that were, according to him, in such dire need of attention.  Indeed, Mr Mates described his activity in relevant respects as an observation, not an inspection.  The absence of a joint inspection, with the added focus and clarity that that would most likely have brought to the recollections of both parties, introduces, I consider, a certain unreality to the court’s task of deciding whether the conditions were indeed as Mr Mates described them in his evidence.  The subject-matter itself is to an extent a matter of degree, as is clear from the use of such judgmental expressions as “appalling”, “filthy” and “a disgrace”.  This makes it the more regrettable that some record of the objective situation – or at least of the allegations actually voiced at the time – was not made.  The situation is made the more curious by the circumstance that the parties – Kane and the Union – between them either referred the matter or attempted to refer the matter to no fewer than three independent agencies, presumably in an attempt to have them come to grips with the essence of the matters in dispute.  In one way or another, however, each of those agencies left the parties with no record of any findings as to the now-disputed conditions on the site or as to the merits of Mr Mates’ allegations generally.  WorkSafe declined to send an inspector because of a view that the problem was an industrial one, not a health and safety one.  The Commission withdrew from the field on the basis that the matter had been notified to, and would be handled by, the Building Industry Panel.  The Building Industry Panel conducted an apparently formal inspection and resolved the dispute amicably – but without leaving behind any finding as to the matters in dispute or the condition of the site. 

64                  At least at this stage of the case, the central question is not whether the site sheds were in a clean and hygienic condition, but what Mr Mates said to Mr Leonard.  I am disposed to view the statement which Mr Leonard made on 23 August 2006, set out in par 17 above, as the most reliable indication of what was said.  It was tendered by the respondents.  Mr Leonard was cross-examined towards acceding to the proposition that his recollection of the events of 28 July 2006 was likely to have been fresh, and therefore reliable, at the time when he made the statement.  Indeed, by the trend of the cross-examination set out in par 17 above, the respondents have, I consider, tied themselves to the position that Mr Leonard’s statement is accurate and reliable not only with respect to what it says but also with respect to what it does not say.  If the respondents proposed to submit, notwithstanding their tender of the statement, that there was some respect in which it was inaccurate or incomplete, it was, in my view, incumbent upon them to put squarely to Mr Leonard not only the substance of the matters concerned (which they did) but also the problem of his inaccuracies or omissions as such (which they did not).

65                  I am, therefore, disposed to accept Mr Leonard’s statement as setting out the substance of his conversation with Mr Mates on 28 July 2006.  The statement contains no reference to Mr Mates having mentioned the condition of the sheds or of the site generally.  Further, the statement makes it clear that Mr Mates did require the employment or engagement of an occupational health and safety representative on the site by the following Monday.  I do not accept Mr Mates’ evidence to the contrary in either respect.  He is a party to this proceeding, and his evidence, both at this point and elsewhere, tended to emphasise the exculpatory connotations which his statements and conduct were plausibly able to wear.  He gave his evidence directly and confidently, and without hesitation.  Yet the clarity of recollection which he claimed to have in point of detail strikes me as incongruous in the context of an organiser who made over 300 site visits in a year.  By contrast, Mr Leonard was less obviously confident in the giving of his evidence, yet more obviously cautious about overstating the position.  He was often prepared to agree that various things put to him in cross-examination were “possible”, which of course they were.  On the two aspects presently under discussion, he made it clear that his recollection was that Mr Mates made no complaint about occupational health and safety concerns on the site and that Mr Mates did require the engagement of a labourer in an occupational health and safety role by the following Monday.  I accept Mr Leonard’s evidence in these respects. 

66                  There is some other evidence which supports the applicant’s case that Mr Mates required that the site have a labourer in an occupational health and safety-cum-peggy role.  There is the evidence of Mr Kelly, called by the respondents.  He said that there was a conversation to the effect that the job needed an occupational health and safety representative.  He could not recall that Mr Mates insisted that there be one by the following Monday, but he did recall a conversation to the effect that one was needed on the site.  There is the evidence of Messrs Dawson and Chambers.  I accept that their evidence is relevantly contested by Mr Mates, but they struck me as honest and conscientious witnesses who were doing their best to recount events as they recalled them.  They did not embellish their evidence with propositions which may have been helpful to the applicant.  They readily accepted that statements of which they had no recollection might possibly have been made.  Neither they, nor Kane, is a party to the proceeding, and I can think of no reason why either of them would perceive any advantage in giving evidence that was adverse to the respondents.  Mr Dawson said that Mr Mates insisted that there be an occupational health and safety labourer on the site immediately.  Mr Chambers recalls Mr Dawson conveying such a requirement to him by telephone on the same day.  Of his direct conversation that day with Mr Mates, Mr Chambers said that Mr Mates requested the provision of someone to act as a general labourer, an occupational health and safety representative and a first aider.  The suggestion which Mr Chambers made, and which Mr Mates rejected, that a labourer from another site could attend the site as required, also supports the notion that it was the addition of a labourer to the permanent workforce on site which was the focus of the discussion between them on 28 July 2006.  Mr Chambers’ evidence is supported by his statement of 7 September 2006, tendered by the respondents (see par 33 above).

67                  I also note that neither Mr Chambers nor Mr Dawson recalls having been told, on 28 July 2006, that Mr Mates’ concern related to the condition of the sheds or of the sites generally.  If Mr Mates’ protestations were anything like as serious, or as categorical, as he had stated in his evidence, it is, in my view, quite improbable that Mr Leonard would not have passed the complaints on to Mr Dawson (and Mr Dawson to Mr Chambers). 

68                  In the circumstances, I would find that the essence of the conversation between Mr Mates and Mr Leonard on the site on 28 July 2006 was as compendiously stated by Mr Leonard in his statement, as set out in par 17 above.

69                  The other contentious aspect of the conversation between Mr Leonard and Mr Mates on 28 July 2006 is the question whether Mr Mates threatened that, absent the presence of a labourer on site on the following Monday, he would shut (or close) the job down.  Mr Mates strenuously denied having made any such threat.  Mr Leonard initially gave evidence that such a threat was made, but later accepted that the terms of his statement of 23 August 2006 most probably provided the more reliable record of what had been said (ie, that, absent the labourer, Kane would have some problems).  Apart from Mr Kelly (who could not recall even the “have some problems” comment), no other witness gave even indirect evidence of the conversation between Messrs Leonard and Mates.  Messrs Dawson and Chambers did give evidence of what Mr Mates had said on 28 July 2006, but, in each case, that evidence was based upon what Mr Mates had said directly to the witness concerned.  In the case of Mr Chambers, he gave evidence, to which he adhered under cross-examination, that Mr Dawson had told him that Mr Mates had threatened to close the job.  However, Mr Dawson’s own evidence does not contain any such element, and there is no suggestion that, in conversation with Mr Chambers directly, Mr Mates made any such threat. 

70                  However these variations may be, the matter is, I consider, resolved by reference to the applicant’s pleading.  The applicant did not allege that Mr Mates threatened to shut (or to close) the job down.  Neither did he rely upon what Mr Mates said to Mr Dawson or to Mr Chambers.  He relied only upon the conversation between Mr Mates and Mr Leonard, and particularised his allegation in the terms employed in Mr Leonard’s statement, as set out in par 17 above.  He alleged that a threat to organise a work stoppage, or to take some other action which would disrupt work on site, was to be implied from Mr Mates’ words to Mr Leonard “or Kane will have some problems”.  For reasons set out above, I find that Mr Mates did use those words, or words substantially conveying that meaning.  As I have said, the cross-examination of Mr Leonard by counsel for the respondents as good as implied an acceptance that those words were used by Mr Mates.

71                  I am satisfied, therefore, that Mr Mates intimated to Mr Leonard that a person should be employed as a building employee, or that an employee or contractor should be designated, to perform occupational health and safety responsibilities, and general peggy duties, on the site.  I am also satisfied that this intimation was firmly and directly made, and was intended to be taken seriously and to be complied with promptly.  However, did Mr Mates thereby threaten to organise a work stoppage, or to procure a disruption to work, as alleged by the applicant?

72                  The applicant’s case as pleaded is not that Mr Mates expressly made such a threat, but rather that he implicitly did so.  Whether his words carried that implication is a question to be decided objectively, by reference not only to the words themselves but also to the surrounding context.  An important consideration is the seriousness of the threat if the words did imply what the applicant alleges:  since Kane did not have its own employees on the site (other than Mr Leonard himself), the conduct implied would have amounted to an interference in the performance of contracts between Kane and such of its sub-contractors as had work on the site at the relevant time.  I would pause before accepting that words, otherwise benign in themselves, necessarily carried that implication.  It was not suggested by the respondents that Kane was in breach of any statutory, regulatory or award provision in not having an occupational health and safety labourer on the site in addition to Mr Leonard (who, it seems to be accepted by the respondents, had the appropriate qualifications).  That may not, however, have been the end of the “problems” which Mr Mates might be taken to have predicted.  There was, for example, the possibility that the employees of sub-contractors working on the site from time to time might not be content with the health and safety arrangements, or with the condition of the site.  Mr Leonard’s discharge of his normal site management functions might, as Mr Mates asserted, leave him with insufficient time to attend to health and safety-related aspects of the working conditions of the site.  Workers might, even without the prodding of a union organiser, have taken the kind of decisions that Mr Mates claims they did at their meeting on 31 July 2006.

73                  There were, therefore, a number of plausible courses that events might have taken on the site in the absence of an occupational health and safety labourer, looking at the matter objectively against the facts existing on 28 July 2006, and known to Mr Mates and Mr Leonard, and which could, without straining the language, be described as visiting “some problems” upon Kane.  I do not consider that Mr Mates’ words necessarily carried the implication for which the applicant contends.  They were very general words, and doubtless the organisation of stoppages or disruptions might have been fairly described by them (ie as amounting to “some problems”).  But so might many other outcomes.  That being so, I cannot find that Mr Mates’ words implied what the applicant alleges.

74                  Relevantly to the events of 28 July 2006, the applicant’s case was conducted only by reference to the allegation that the “some problems” statement by Mr Mates implied a threat to stop or to disrupt work.  That is to say, there was no alternative case that, absent that implication, Mr Mates’ words, either in themselves or as implying something else, bespoke an intent to coerce Kane.  Since I have not accepted the applicant’s case on implication, it follows that his allegations of unlawful conduct on 28 July 2006 must be dismissed.

THE ALLEGATION THAT MR MATES ORGANISED A STOPPAGE OF WORK ON 31 JULY 2006

75                  Save for the allegation that Mr Mates said that he was going to shut the job down, the differences between the evidence of Mr Leonard and that of Mr Mates as to their first conversation on 31 July 2006 are little more than terminological.  In his statement of 23 August 2006, Mr Leonard said that Mr Mates told him that he had spoken to Mr Chambers about putting a labourer on, and that the latter had “knocked the deal back”.  Mr Mates said that he spoken to Mr Chambers, but that there had been “no outcome”, and that “obviously nothing has changed in regards to getting you some help in regards to keeping the job up to scratch”.  I am satisfied that the substance of Mr Mates’ concern, as expressed to Mr Leonard, was that Mr Chambers had refused to engage a labourer on the site, and that the position was, therefore, the same as it had been on the Friday.

76                  As to the allegation that Mr Mates told Mr Leonard that he intended to shut down the job, or used words carrying that meaning, I am satisfied that he did so.  I am influenced by the tender, by the respondents, of Mr Leonard’s statement of 23 August 2006, by the tenor of the cross-examination of Mr Leonard with respect to the reliability of that statement (albeit by reference to the events of 28 July 2006) and by the failure of counsel for the respondents to cross-examine Mr Leonard on his oral evidence that Mr Mates had made such a statement.  I can think of no reason why Mr Leonard would not tell the truth as he recalled it in this respect – either in his statement of 23 August or in court – and none was suggested on behalf of the respondents.  Mr Leonard is no longer employed by Kane, and would appear to have no interest in the outcome of this proceeding.  I accept his evidence.  While I also accept that Mr Mates was attempting to tell the truth as he recalled it, he did not have the advantage of any note or reasonably contemporaneous memorandum by reference to which to refresh his recollection.  As noted above, he was involved in some hundreds of site visits each year.  Against the evidence of Mr Leonard to which I have referred, I am not prepared to accept Mr Mates’ denial of having stated an intention to close down the job.

77                  I turn next to the important question of what Mr Mates said to the workers at their meeting on 31 July 2006.  The only direct evidence on this subject was that of Mr Mates and of Mr Rand.  Each denied that the former had said that he was shutting the job down, or similar.  Although Mr De Riva was told by one of his workers that the job had been shut down by Mr Mates, the evidence, indirect as it is, is not sufficient for me to find that Mr Mates had addressed the meeting in those terms.  It is well within the bounds of reasonable probability that this statement by the worker to Mr Riva amounted to the worker’s interpretation of what had happened.  I find that Mr Mates did not tell the workers that he was shutting (or closing) down the job, and did not direct them to leave the site.

78                  I accept both the evidence of Mr Mates (as set out in par 39 above) and that of Mr Rand (as set out in par 42 above) as to the course of the meeting.  However, I do not accept that Mr Mates went no further than to outline to the workers the poor state of the conditions on site, and the safety problems which that potentially involved, and left it to them to decide what to do about it.  I commence with my earlier findings, first, that it was the absence of an occupational health and safety labourer-cum-peggy that was Mr Mates’ principal concern on 28 July 2006 and, I consider, his principal reason to return to the site on 31 July, and secondly, that Mr Mates had already (on 31 July) told Mr Leonard that he was there to shut down the job.  There is some corroboration of the first of these points in the evidence of Mr Dawson that Mr Leonard had told him by telephone that Mr Mates was back on site and had asked him (Leonard) whether a labourer had been put in place.  From there, I accept Mr Mates’ own evidence that he addressed the meeting in terms which were strongly critical of the condition of the site.  I also accept his evidence that he told the meeting that Mr Leonard was not in control of the safety aspects of the site.  These were, in my view, statements naturally calculated to induce a sense of reserve in a reasonable worker about continuing to work on the site.  I then take account of the evidence of Mr Rand, general though it was, that Mr Mates expressed a concern about something raised on the Friday which had not been sorted out by the builder.  The sense of this is that the builder (Kane) was in default in some way.  I also note that Mr Rand did recall some point being made about an occupational health and safety representative on site.  Finally, Mr Mates himself gave evidence that he asked the workers to ring their bosses and to consider relocation because of the state of the job.

79                  In the light of the evidence to which I have referred, it would be naïve not to recognise that the burden of Mr Mates’ message to the workers in the meeting on 31 July 2006 was that they should perform no further work on the site that day.  No doubt he had his own good reasons for conveying that message.  I accept also that it was not a direction.  It was, however, a recommendation with the authority of a union organiser.  Neither would it have appeared to the workers to be any spur-of-the-moment thing:  Mr Mates’ reference to something having been raised with the builder on the Friday, and not sorted out, would have given an element of considered seriousness to what he was recommending.  I accept also that the workers generally agreed with Mr Mates’ assessment of the situation on site, but he himself added an opinion about Mr Leonard’s ability to control matters of safety on site which would not otherwise have been known to the workers.  That Mr Mates would have felt able to make a comment about such a subject could only have added further authority to what he said.

80                  For the above reasons, I accept the applicant’s allegation that, on 31 July 2006, Mr Mates organised a stoppage of work on the site.  I also accept the alternative, and effectively indistinguishable, formulation relied on by the applicant, namely, that Mr Mates “took … steps to procure” such a stoppage. 

THE ALLEGATION OF A THREAT OF FURTHER WORK STOPPAGES ON 31 JULY 2006

81                  There are two things which weaken the position from which the respondents invite the court to reject Mr Leonard’s evidence that, at the conclusion of Mr Mates’ visit to the site on 31 July 2006, he told Mr Leonard that “we’ll go through all this again”, or similar.  First, there is the tender of Mr Leonard’s statement, in which such a statement by Mr Mates is referred to, by the respondents themselves.  Secondly, there is the respondents’ omission to cross-examine Mr Leonard on his oral evidence (unassisted at the time by any reference to his statement) to the same effect.  I am satisfied that Mr Mates did use words generally along the lines alleged by the applicant, namely, that if there were not an occupational health and safety representative on site the following day, “we’ll go through all this again”.

82                  The “all this” to which Mr Mates referred was, of course, holding a meeting with the workers, persuading them to ring their employers with a view to having their own labour withdrawn from the site and the fact of such withdrawal.  In context, Mr Mates’ words were, in my view, a threat that, in the absence of a labourer on the site, he would procure those outcomes; Gietzelt v Craig-Williams Pty Ltd (No 1) (1959) 1 FLR 456, 459.  It was a threat capable – subject to the existence of an intent to coerce – of amounting to a contravention of s 43 of the BCII Act.

UNLAWFUL INDUSTRIAL ACTION

83                  Because the applicant’s allegations of coercive conduct under s 43 of the BCII Act depend, in one of their formulations, upon whether Mr Mates engaged in unlawful industrial action within the meaning of s 38, it is convenient to dealt with that aspect first, and to return to s 43 later. 

84                  The applicant contended that Mr Mates’ organising of the work stoppage on 31 July 2006 was unlawful industrial action within the meaning of s 38.  Following closely his client’s Statement of Claim, counsel for the applicant put this in the following ways:

• The act of organising or procuring a stoppage of work constituted the engagement, by Mr Mates, in a ban, limitation or restriction upon the performance of work.
• The stoppage of work by the workers on the site constituted the engagement, by them, in a ban, limitation or restriction upon the performance of work, and Mr Mates organised or procured that stoppage.
• The stoppage of work by the workers on the site constituted the engagement, by them, in a ban, limitation or restriction upon the performance of work, and Mr Mates, by organising or procuring that stoppage, authorised the employees to engage in it.
• The stoppage of work by the workers on the site amounted to unlawful industrial action by them in contravention of s 38 of the BCII Act, and Mr Mates organised, counselled, procured, encouraged or was knowingly concerned in or a party to that contravention.

The differences between these propositions are subtle, but important nonetheless.  To an extent, they appear to be the result of the highly structured terms of the BCII Act.

85                  By the first proposition, the applicant contends that what Mr Mates did was a ban etc as such.  The second proposition has two elements, the first of which is that the workers engaged in a ban etc, and the second of which is that Mr Mates organised or procured it.  The third proposition seems to invoke s 69(1)(c)(iii) of the BCII Act, which provides that conduct by a group of members of a “building association” (ie including the Union) authorised by an officer or agent of the association acting in that capacity is to be taken to be conduct of the association itself.  The fourth proposition invokes s 48(2) of the BCII Act, which provides (relevantly) that, for the purposes of Pt 1 of Ch 7, a person is “involved” in a contravention of a civil penalty provision (such as s 38) if the person counselled or procured, or was knowingly concerned in or party to, the contravention. 

86                  Although each of the second, third and fourth propositions may be regarded as alleging a form of derivative liability, to make good the fourth (but not the second or third) it would be necessary to show that the workers themselves not only engaged in a ban etc, but actually contravened s 38.  Notwithstanding that distinction, to make good each of the second, third and fourth propositions the applicant must at least establish that the workers themselves engaged in a ban, limitation or restriction on the performance of work in accordance with the terms and conditions prescribed by an industrial instrument, within the meaning of par (b) of the definition of “building industrial action” in s 36(1) of the BCII Act (see par 7 above).  I shall, therefore, commence with that aspect of the problem.

87                  Counsel for the respondents accepted that the workers were covered by an instrument or order of the kind referred to in par (b) of the definition.  However, he submitted that the applicant had not identified, either in his pleading or in his evidence, the term of the industrial instrument which related to the performance of work and which was claimed by him to be the subject of the alleged “ban, limitation or restriction”, as required by that paragraph.  As an instance of such a term, counsel drew my attention to cl 12 of the award, headed “Employer and employee duties”.  Subclauses 12.1.1 and 12.1.2 were in the following terms:

12.1.1      An employer may direct an employee to carry out such duties as are within the limits of the employee’s skill, competence and training consistent with the classification structure of this award provided that such duties are not designed to promote de-skilling.

12.1.2      Any direction issued by an employer shall be consistent with the employer’s responsibilities to provide a safe and healthy working environment.

In the context of these provisions specifically, counsel submitted that any attempt by Kane (or, more relevantly, by BV Rigging, which, together with Kane, was bound by that award) to rely on subcl 12.1.1 would immediately have been met by the employees’ (and the Union’s) reliance on subcl 12.1.2 and by their assertion that the situation on the site on 31 July 2006 was not such as involved “a safe and healthy working environment”.  However, counsel’s point here was simply that it lay upon the applicant to prove the existence, and applicability, of a term of an industrial instrument which related to the performance of work, and that the applicant had not conducted his case by reference to that obligation at all.

88                  I do not accept the construction of par (b) of the definition of “building industrial action” for which counsel for the respondents contended.  The genesis of the paragraph was the provision very commonly inserted into awards made by the Commonwealth Conciliation and Arbitration Commission, and before it by the Commonwealth Court of Conciliation and Arbitration, under the Conciliation and Arbitration Act 1904 (Cth).  A very well-known example was cl 19(ba)(i) of the Metal Trades Award 1952, which provided as follows (see 73 CAR at 442):

No organization party to this award shall in any way, whether directly or indirectly, be a party to or concerned in any ban, limitation or restriction upon the performance of work in accordance with this award.

With reference to that provision, an argument indistinguishable from that now being advanced on behalf of the respondents was rejected in Commonwealth Steel Co Ltd v Federated Ironworkers Association of Australia (1952) 74 CAR 84.  Kirby J said (at 94-95):

The substance of Mr Wootten’s second, and main, submission was that “the performance of work in accordance with this award” means “the performance of work in the manner required (or prescribed) by this award” and not “the performance of work covered by this award.” …. My opinion is that Mr Wooten and Mr Collins have had to strain the natural meaning of “accordance” to gain support for the construction for which they contend. The dictionary meaning of accordance is “agreement with a person” or “conformity with a thing” whilst two of its synonyms are “concord” and “harmony.” Whether the phrase “in accordance with” attaches itself to “performance of work” or to “work” I cannot see why it should be given the harsh meaning sought by Mr Collins and Mr Wootten. I would hold that the phrase “the performance of work in accordance with this award” means no more than “the performance of work covered by this award”. … From a natural construction I am satisfied that the policy of the award and the inclusion of the sub-clause was to discourage or prevent organizations being concerned in a total prohibition of, or partial interference with, work covered by the award, whatever the motive or purpose of the prohibition or interference.

As I understand it, there was never a departure from his Honour’s construction of cl 19(ba)(i) of the 1952 award. 

89                  The first statutory definition of “industrial action” was introduced into the 1904 Act by the Conciliation and Arbitration Amendment Act (No. 3) 1977 (Cth).  That definition used the very formula now to be found in par (b) of the definition in s 36(1) of the BCII Act, namely, “… a ban, limitation or restriction on the performance of work, or on acceptance or offering for work, in accordance with the terms and conditions prescribed by …” various generically-identified forms of industrial instrument.  I do not consider that the introduction of the phrase “the terms and conditions prescribed by” after “accordance” altered the meaning attributed to the corresponding provision by Kirby J, ie that “in accordance with” meant “covered by”.  Thus the extended statutory phrase introduced in 1977 conveyed the meaning “covered by the terms and conditions prescribed by ….”  The same meaning should be given to the same phrase in par (b) of the definition in s 36(1) of the BCII Act.

90                  The next issue which arises under par (b) of the definition of “building industrial action” is whether the workers engaged in a “ban, limitation or restriction” on the performance of their work.  In NMHG Distribution Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (2000) 104 IR 158, a Full Bench of the Commission said the following of the word “ban” in a statutory context indistinguishable from that with which I am presently concerned (at 162 [11]):

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

Regarding the contribution made by the words “limitation or restriction” to the composite phrase, in Commonwealth Steel Kirby J said (74 CAR at 94):

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

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

91                  In the facts of the present case, Mr Mates effectively recommended that the workers stop work on the site, but he did so by having them contact their employers and ask to be relocated to other sites.  Since those workers were under the control of their employers, not Kane, it is the nature of their communications with those employers that must govern the answer to the question whether they engaged in a ban, etc.  If they refused to work on that site, there would, in my view, have been at least a limitation on the performance of work, notwithstanding that they may have been prepared to work elsewhere.  On the other hand, if they went no further than to inform their employers of what Mr Mates had said, and then proceeded wholly in accordance with the employers’ instructions, their conduct could not, in my view, be so characterised.

92                  There is evidence of the communication between the employees of Northwest Concrete and Mr De Riva on 31 July 2006.  One of them rang Mr De Riva, and left it to Mr Mates to explain what had happened.  Mr Mates suggested relocation, and Mr De Riva made his own decision.  I could not hold, on this evidence, that those employees engaged in a ban, limitation or restriction on the performance of work.  As to the employees of BV Rigging, the applicant’s case, relevantly, is wholly inferential.  No representative of that company was called.  The court does not know (at least by direct evidence) what those employees, or their spokesman, said to their employer.  Insofar as things may be inferred, I could not go further than to hold that, most probably, those employees asked to be relocated because of the view (right or wrong) expressed by their union organiser that the condition of the site and of the amenities was not such that work should be performed there.  This does not, in my view, amount to a ban, limitation or restriction on the performance of work.

93                  It not having been established that any of the workers on the site on 31 July 2006 engaged in a ban, limitation or restriction on the performance of work, I would reject each of the second, third and fourth propositions set out in par 84 above.

94                  I turn next to the first proposition, ie that Mr Mates directly engaged in unlawful industrial action on 31 July 2006.  The applicant’s contention is that Mr Mates organised, or took steps to procure, the stoppage of work which in fact took place on that day (a contention which I have accepted) and that this amounted to the imposition of a ban, limitation or restriction on the performance of work.  By imposing the ban etc (according to the applicant), Mr Mates necessarily “engaged” in it.

95                  In addition to the argument with which I have dealt at pars 86, 87, 88 above, counsel for the respondents made the omnibus submission that, of its nature, a ban, limitation or restriction on the performance of work could be engaged in only by the employees who would normally perform that work.  In this respect, counsel relied upon the judgments of the Full Court in Construction, Forestry, Mining and Energy Union v Australian Industrial Relations Commission (1998) 89 FCR 200, 213 (which, as it happens, was later reversed in Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194) and Davids Distribution Pty Ltd v National Union of Workers (1999) 91 FCR 463, 486 [52].  The same submission was, however, rejected by Kenny J in Cahill v Construction, Forestry, Mining and Energy Union (No 2) (2008) 170 FCR 357, 370-381 [31]-[60].  Her Honour pointed out that the two Full Court judgments were concerned only with the question whether a restriction on work implemented by way of a picket line which prevented those who would otherwise perform the work from having access to their work site was a “ban, limitation or restriction” within the meaning of the definition then under consideration.  They were not concerned with the question whether a union, or one of its officials, engaged in a “ban, limitation or restriction” by imposing a prohibition upon its members working, or working in a particular way.  Indeed, the formal imposition of a ban, limitation or restriction upon particular work by a trade union, with the intent that its members would be bound to give effect, and would in fact give effect, thereto, has been, over the years, the very essence of direct action for the maintenance and improvement of the working conditions of employed persons.  I agree with Kenny J that, in each of the judgments referred to, the Full Court was concerned with a different proposition from that now advanced on behalf of the respondents.

96                  It follows that conduct by Mr Mates with reference to the workers on the site on 31 July 2006 is capable of constituting the engagement by him in a ban, limitation or restriction on the performance of work by those workers.  However, did his conduct on that day do so?

97                  As I have found, immediately before the meeting of workers on the site on 31 July 2006, Mr Mates told Mr Leonard that he intended to shut the job down.  I also accept that Mr Mates went into the meeting with the intention of prevailing upon the workers to bring about that very result by stopping working on the site.  Had Mr Mates directed the workers to stop work, or announced that the job was shut down, he would thereby, in my view, have imposed a ban, limitation or restriction (and thus engaged in such).  However, Mr Mates did neither of these things.  He gave no direction.  His own evidence was that he asked the workers to “ring their bosses and ask the bosses to consider relocation because of the state of the job”.  There is no direct evidence to contradict this, and the evidence of Mr De Riva supports it.  Mr Rand’s evidence is not inconsistent with it.  However confident Mr Mates may have been that, by these means, he would achieve his object of closing down the site, the fact is that he did so by a recommendation which, if carried out, would have involved the workers themselves doing no more than asking their employers to consider relocation.  I could not accept that Mr Mates’ words amounted to the imposition of a ban, limitation or restriction on the performance of work in the sense I have explained it above.

98                  It follows from these reasons that the applicant’s allegations that Mr Mates engaged in unlawful industrial action in contravention of s 38 of the BCII Act must be dismissed.  Since Mr Mates was the only actor for whose conduct it was said that the Union was also liable, the like allegations against the Union also must be dismissed.

COERCION

99                  The applicant’s case under s 43 of the BCII Act with respect to Mr Mates’ organising of the work stoppage on 31 July 2006 is that it was done with intent to coerce Kane to employ, engage or designate a labourer with occupational health and safety responsibilities. This case requires inquiry at two levels: first, did Mr Mates organise the stoppage in order to have Kane do that, and if so, secondly, did this amount to coercion?

100               As to the first aspect, Mr Mates’ evidence was that the purpose of his visit to the site on 31 July 2006 was to see whether any of the safety issues which he claimed to have pointed out on 28 July had been addressed.  He said that the purposes of his discussions with Mr Leonard “were all about trying to help the bloke; safety”.  Mr Mates did not give direct evidence of his purpose in suggesting to the workers in the meeting that they ring their employers and ask to be relocated.  How such a procedure might have advanced his purpose of trying to help Mr Leonard with matters of safety was left obscure in the respondents’ case.  However, assuming that the provision of help for Mr Leonard was a concern of Mr Mates, the most obvious way for that to have been achieved would have been for Kane to be prevailed upon to employ or engage additional labour for the site.  The same might be said if Mr Mates’ concern was to bring about an improvement in the general condition of the site and of the amenities.  That Mr Mates had either or both of these concerns would in no sense have been inharmonious with a direct insistence by him that such labour be employed or engaged.

101               The identification of Mr Mates’ purpose on 31 July 2006 is, of course, an objective matter to be done in the light of all the circumstances existing at the time.  Had the evidence been such as to justify the conclusion that no union organiser, viewing the matter objectively, could have considered it safe for his or her members to continue working on the site that day, the case for supposing that Mr Mates’ purpose was to protect the workers from an immediate risk to their health or safety would be that much stronger.  However, I could not reach that conclusion on the evidence in the case.    

102               It is instructive that two witnesses (Mr Rand and Mr De Riva), both apparently quite independent of the parties and having no reason to be sympathetic to the cause of either, and each called by a different party, used the same expression to describe the condition of the site: “below average”.  Mr Mates’ own emphasis on the need for Mr Leonard to be provided with assistance also suggests that this was a site that needed attention, not one on which a worker could not reasonably be asked to work.  I consider that the condition of the amenities, even if as described by Mr Mates, did not give rise to an immediate, or even to a reasonably proximate, risk to the health or safety of the workers.  It was not explained, for example, how full and overflowing refuse bins in the lunch room might have done so.  Perhaps such matters – and generally unclean conditions in the toilets for example – might have raised legitimate concerns about risks to the health of workers, but no (eg professional) evidence dealt with this dimension of the problem as perceived by Mr Mates.  In the respondents’ case, it was as though it should be self-evident that the muddy and generally unclean condition of the site amenities was necessarily such as to give rise to risks of this sort.  In the view I take, it is not.  In short, I am not persuaded that it ought reasonably to have appeared to an organiser in the position of Mr Mates that, on health and safety grounds as such, work should not continue at all on the site on 31 July 2006.

103               Putting these considerations together with my earlier finding that Mr Mates had required (on 28 July) the employment of a labourer and with Mr Mates’ own evidence that he told Mr Leonard (on 31 July) that nothing had changed “in regards to getting you some help”, I am led to the clear conclusion that a substantial, if not the only, intent of Mr Mates, when he addressed the workers in the meeting on 31 July 2006 was that Kane should be influenced (to use a neutral term at this stage) to employ or to engage such a labourer.  In Hanley v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (2000) 100 FCR 530, 541 [45] the Full Court said:

Section 170NC is contravened if a person engages in conduct intending to coerce a person to agree to make an EBA even if the conduct has one or several other purposes or objectives. It is, to adopt the language of General Motors Holden Pty Ltd v Bowling (1976) 51 ALJR 235, sufficient that the proscribed reason is a substantial or operative reason.

Because of the similarity of language, I accept that their Honours’ observation applies just as much to s 43 of the BCII Act as it did to s 170NC of the WR Act with which they were concerned.  In the present case, the intent to have Kane employ, engage or designate a labourer was not only operative in Mr Mates’ thinking at the time, but was substantially so. 

104               I note that the paragraphs of s 43(1) are expressed disjunctively, such that conduct directed to any one or more of those ends would fall within the terms of the section.  In these reasons, I have generally not discriminated between the employment (par (a)) or the engagement (par (b)) of a labourer by Kane as the subject of Mr Mates’ intention on 31 July 2006.  To the extent that it matters, I would find that the essence of what Mr Mates required (and thus of what he intended should happen) was the employment of a labourer by Kane.  There was a suggestion by the respondents that, at some point, Mr Mates may have made it clear that he would be content for an employee of one of the subcontractors engaged on the site to be designated (see par (d) of the definition), but how this might have worked was not developed in submissions.  The thrust of Mr Mates’ conversations with representatives of Kane at all levels was that a labourer should be employed for the site and should be employed by Kane.  However that may be, on any view Mr Mates’ intent was such as would be comprehended by at least one of the paragraphs in s 43(1) of the BCII Act.

105               As to the question whether Mr Mates’ intent was to coerce Kane to that end, it was common ground that the test of coercion is that stated by Merkel J in Seven Network (Operations) Limited v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (2001) 109 FCR 378, 388 [41]:

The above cases establish that there must be two elements 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, will negate choice. Second, the exertion of the pressure must involve conduct that is unlawful, illegitimate or unconscionable.

In other words, in the context of the present case it must be shown that Mr Mates not only intended that Kane should be influenced to employ or engage a labourer, but that its choice whether to do so or not should effectively be negated; and that the action taken to that end be unlawful, illegitimate or unconscionable.

106               The question whether Mr Mates intended that Kane’s choice whether to engage a labourer should be negated is, of course, a different one from whether he intended that the workers should have a choice whether to ask their employers for relocation or that the employers should have a choice whether to accede to any such request, if made.  It may be supposed to be consistent with my earlier findings in these reasons that Mr Mates gave the workers a choice; and that (following Mr Mates’ suggestion) the workers gave their employers a choice.  But Mr Mates called the meeting and addressed the workers with a view to persuading them to have themselves taken off the site, and thus to shutting the site down, as he had told Mr Leonard he would do.  His purpose was that these things should happen.  And when they did happen, the position in which Kane found itself was very different from that which confronted Mr De Riva and, inferentially, the management at BV Rigging. 

107               Mr Mates’ conduct on 31 July 2006 did, in my view, bespeak an intention to negate choice.  It is possible to surmise that Kane had an element of choice on 28 July, and that Mr Mates then intended to return to the site on 31 July to see whether a labourer had been employed.  However, by the time he arrived on site on 31 July, Kane had made its decision and refused to engage a labourer.  It was that refusal which led to the holding of the meeting of workers and to the stoppage of work on site.  By proceeding in this way, Mr Mates was rejecting the choice which Kane had made.  Further, Mr Mates’ action was taken on a day which – as would have been apparent to him – marked the commencement of a significant stage in the building works being carried out by Kane, namely, the erection of structural steel.  Mr Leonard described it as a “critical path item”.  The disruption to the building program brought about by a stoppage on 31 July 2006 would, I infer, have been rather more damaging to Kane than if done on a day on which (to use Mr Leonard’s words) only “mundane work” was taking place.  As a very experienced industry worker and union organiser, this circumstance would have been apparent to Mr Mates.  I find that his intent on 31 July 2006 was that Kane should have no choice but to employ, engage or designate a labourer in an occupational health and safety-cum-peggy role. 

108               That brings me to the question whether the action which Mr Mates took on 31 July 2006 was unlawful, illegitimate or unconscionable. The only respect in which counsel for the applicant submitted that the action was unlawful was that it was in contravention of s 38 of the BCII Act.  Since I have rejected that part of the applicant’s case, I would likewise reject the submission that Mr Mates’ actions were unlawful. 

109               Was it illegitimate for Mr Mates to seek to achieve his purpose of having Kane employ a labourer on the site by organising the workers to have themselves relocated elsewhere, thereby bringing about a stoppage of work on the site itself?  He was careful to do so in a way that did not involve any obvious breach of the workers’ contracts of employment.  Whether the withdrawal of labour by subcontractors (Northwest Concrete and BV Rigging) was a breach of their contracts with Kane was unclear: as matters were left in the evidence, I could not hold that it was in either case.  However, the subcontractors had sent their employees to work on the site in accordance with normal commercial arrangements made by Kane and for the purpose of carrying out tasks which, at least to a significant extent, were on the critical path.  It does not, in my view, require knowledge of the terms of the contracts between the subcontractors and Kane to conclude, as I do, that Kane was entitled – in a business if not a legal sense – to expect that, in the normal course, those employees would remain on site and carry out those tasks.  It would, I consider, be rather odd for a court to hold that it was perfectly alright for a stranger to the relationship between the subcontractors and Kane to prevail upon the employees of the former to make a request to their employers that they be taken off site.  I express these views not to suggest that they reflect anything like the actual situation on the site on 31 July 2006, but rather to establish a base-line of normality, as it were, by reference to which it should then be regarded as lying upon the respondents to establish that the situation on the site was such as to give legitimacy to Mr Mates’ actions. 

110               It is implicit in the respondents’ case that the legitimacy of Mr Mates’ actions should be assessed in the context of his concerns about the condition of the site, and of the amenities in particular.  However, the question of legitimacy is to be objectively determined.  I have held that the situation existing on the site was not such as would have justified a union organiser taking the reasonable view that no work at all should be done, and that the site should effectively be shut down, on health and safety-related grounds.  I would hold, therefore, that the concerns which Mr Mates in fact held about those matters were not as such sufficient to legitimise the action which he took. 

111               But Mr Mates’ action should not be considered in isolation from the regulatory framework in which both he and Kane operated.  Commencing with the OH&S Act, it is only upon an inspector reasonably believing that an activity occurring, or which may occur, at a workplace that involves, or would involve, an immediate risk to the health or safety of a person that he or she may issue a notice prohibiting the carrying on of the activity, either at all or in a specified way: s 112.  The Act does not contemplate that workers might remove themselves from a workplace or that a union organiser might persuade them to do so.  Mr Mates did not arrange for an inspector to attend the site on 31 July 2006 in order to exercise power under s 112.  Within the scheme of the OH&S Act, therefore, Mr Mates’ actions ought not to be regarded as legitimate.

112               There was no evidence that Northwest Concrete was covered by a certified agreement, in which circumstance I infer that the only instrument binding on it under the WR Act was the award.  I have referred (in par 57 above) to the disputes resolution procedure for which cl 11 provided.  However, given the evidence of Mr De Riva, it is apparent that there never was a dispute between Northwest Concrete and any of its employees working on the site.  I consider, in the circumstances, that the provisions of the award were neutral with respect to the legitimacy of Mr Mates’ actions. 

113               The employees of BV Rigging (who appeared to have been the majority on the site on 31 July) were covered by the BV agreement.  It is apparent from the provisions of that agreement relating to health and safety to which I have referred (see par 55 above) that a cessation of work, or the reassignment of employees to alternative work, is regarded as an exceptional procedure arising from the existence of an immediate threat to the health or safety of a person and the inability of the parties directly involved to adopt the processes for which cl 16.3 provides.  Although the provisions of the agreement do not in terms proscribe the cessation of work, or a demand for reassignment, it is the tolerably clear contemplation of the provisions that work will continue in the normal way unless the exceptional circumstances referred to in cl 16.4.1 exist.

114               It is true, of course, that, as between BV Rigging and its own employees, there is nothing in the BV agreement that would stop them agreeing that the employees should be relocated to a different site.  Indeed, at that level, such an agreement could be reached for any reason that attracted itself to those parties.  I could not find, therefore, that the employees’ request to BV Rigging to be relocated, or that BV Rigging’s accession to that request (each of which I have inferred) was illegitimate.  However, the question is whether Mr Mates’ action should be regarded as illegitimate along the axis between himself and Kane.  Mr Mates was an organiser in the employ of the union.  The union was a party to the BV agreement.  BV Rigging was contracted to Kane to perform work on the site on 31 July 2006.  In the circumstances, I consider it appropriate to have regard to the terms of the BV agreement, and to the regime for the orderly processing of the health and safety-related issues for which it provides, when considering whether Mr Mates’ response to Kane’s refusal to employ or engage a labourer was a legitimate one.  Against the reference point provided by those terms, I do not consider that the response was legitimate. 

115               I have referred also to the disputes resolution procedure contained in cl 10 of the BV Rigging agreement (see par 54 above).  There is no direct evidence of the reaction of BV Rigging itself to its employees’ request to be relocated (the existence of which request I have inferred).  However, it seems clear that the concern for their own health and safety which Mr Mates excited in those employees should be regarded as a “work related grievance” within the meaning of cl 10.2.  As such, the proper course for the employees to have adopted in the circumstances was to continue working without interruption.  For Mr Mates to have persuaded them to ask to be relocated could not be regarded as a legitimate reaction on his part to the conditions on the site as he perceived them.

116               Notwithstanding that there was no employee of Kane on the site at relevant times to whom the Kane agreement applied (except possibly Mr Leonard himself), both parties conducted their cases by reference to an assumption that, in relation to the amenities and site conditions generally, it was Kane, as manager of the site, which had the relevant obligations and it was by reference to the Kane agreement that those obligations were to be identified.  Indeed, in his evidence Mr Mates made that assumption explicit.  I shall proceed consistently with that assumption and consider the legitimacy of Mr Mates’ actions in the light of this agreement.

117               In his cross-examination of Mr Leonard, counsel for the respondents drew attention to items 4.8 and 5.6 on the list in App E of the Kane agreement (see par 56 above).  Mr Leonard said that he did clean and disinfect the facilities on a regular basis, and that, to the best of his knowledge, the closets and urinals were cleaned daily.  He accepted that there may have been days when it was not done, but he could not recall any. 

118               Counsel also cross-examined Mr Leonard on the subject of Kane’s compliance with certain provisions of the codes of practice referred to in App H of the Kane agreement.  The following provision appeared in Code of Practice No 13 under the heading “Dining Facilities”:

Adequate dining facilities for taking meals, including sufficient tables and chairs and facilities for warming food should be provided. Facilities should also be provided for an adequate supply of boiling water at meal times and rest periods. Separate vermin proof containers should be provided for the storage of food and rubbish.

Counsel put it to Mr Leonard that, on the site, separate vermin-proof containers had not been provided for the storage of food and rubbish, but that the site “just had open bins”.  Mr Leonard said that the bins had lids;  it was put to him that the bins did not have lids;  and he said that he could not recall.  The following provision also appeared in this code, this time under the heading “Sanitary Facilities”:

Each closet and urinal should be washed with disinfectant at least daily and should generally be kept in a clean and tidy condition.

Here counsel put it to Mr Leonard that it had been his evidence (to which I have referred in par 20 above) that the closets and urinals were not cleaned “at least daily”, and Mr Leonard appeared to accept that that had been his evidence

119               Code of Practice No 18 contained provisions about first aid rooms.  There was a list of the items of equipment and furniture that “may be appropriate” for a first aid room.  Mr Leonard accepted that the room at the site did not have a desk, a telephone or chairs, and that the first aid kit may have been kept in the site office, rather than in the first aid room.  In other respects the items raised by counsel were, according to Mr Leonard, in the room.  The code also provided that a first aid room should not be used for other purposes.  It was put to Mr Leonard that the first aid room was used for the storage of construction tools, a circumstance which he could not recall.

120               Save in one respect, counsel for the respondents did not, in his final address, rely upon the provisions of the Kane agreement, or of the codes of practice, to which I have referred.  I was not invited to find that Kane had failed to comply with any of the provisions thereof.  I was not, at least explicitly, invited to find that those provisions, and/or Kane’s non-compliance with them, gave legitimacy to Mr Mates’ conduct on 31 July 2006.  The one respect in which a point was made of App E of the Kane agreement was in counsel’s reply.  He submitted that, by showing Mr Leonard the respects in which the amenities did not comply with the appendix on 28 July, and by giving him until 31 July to rectify things, Mr Mates had allowed Kane a “reasonable time in which to rectify the problem” as required by the opening paragraph of the appendix.

121               I accept that, on 31 July 2006, Mr Mates did have concerns of the kinds implied by the cross-examination of Mr Leonard.  Mr Mates elaborated upon a number of those concerns – albeit not specifically by reference to particular provisions of App E to the Kane agreement or of the codes of practice – in his own evidence in chief.  However, his action in persuading the workers to prevail upon their employers to withdraw them from the site was not, in my view, either authorised or contemplated by these provisions.  Had Mr Mates taken the view that conditions on the site were such that workers could not reasonably be asked to work there, there were, under the statutory and regulatory provisions to which I have referred, two courses of actions which he might have adopted.  The first was to have an inspector under the OH&S Act attend the site and issue a prohibition notice.  The second was to process the dispute with Kane under cl 10 of the Kane agreement.  Mr Mates did initiate a referral of the dispute to the Panel under cl 10.2.f – for which he deserves credit – but there was no warrant in those provisions for him to have procured a stoppage of work as a preliminary to that referral. 

122               As I have said, the Kane agreement treated health and safety in the workplace as a subject of particular importance.  The relevant provisions were detailed and, for the most part, prescriptive.  The application of, and compliance with, the OH&S Act was expressly contemplated.  That Act contained a highly-defined regime of the circumstances in which work might be halted on account of a risk to health or safety.  Only an inspector could issue a prohibition notice.  The Kane agreement itself provided no authority for a union organiser to stop work on health and safety-related grounds.  I consider that the agreement contemplated the existence of the regime for which the OH&S Act provided and, in that sense, contemplated that, subject to the overriding obligation of the employer under s 21 or of the site manager under s 26, work should continue in the absence of a prohibition notice.  It was not, in my view, within the contemplation of the Kane agreement that an organiser in the position of Mr Mates might procure a stoppage of work in the circumstances existing on the site on 31 July 2006.

123               Before concluding on the subject of legitimacy, there are two further matters which I should address.  The first is the exception for which par (g) of the definition of “building, industrial action” in s 36 of the BCII Act provides, namely, and subject to certain conditions, that it is not building industrial action for an employee to refuse to work where he or she has a reasonable concern about an imminent risk to his or her health or safety.  Because I have rejected the applicant’s case under s 38 of the BCII Act for other reasons, the occasion for the application of this exception does not arise.  There may be a question whether the existence of facts which would bring the exception into operation would be relevant to the matter of legitimacy under s 43 of the BCII Act.  I was not addressed on that point, and shall say nothing further about it.  It will, however, be apparent from my reasons above that I do not consider that the facts of the present case provided any basis for a reasonable concern on the part of any employee on the site on 31 July 2006 about a then imminent risk to his or her health or safety.

124               The second matter concerns cl 11.1.2 of the award, the terms of which I have set out in par 57 above.  Although the award was tendered by the applicant, his counsel said nothing in his address about this provision, or about cl 11 generally.  Neither was I addressed on the relationship between cl 11.1.2 and the provisions of the certified agreements which dealt with the subject of the resolution of disputes.  In the circumstances, save with respect to what I have said in par 112 above, I do not rely on that subclause in my consideration of whether Mr Mates’ actions on 31 July 2006 were illegitimate.

125               For reasons expressed above, I consider that it was illegitimate for Mr Mates to have procured a stoppage of work on the site on 31 July 2006 as a means of having Kane employ or engage a labourer.  By proceeding in the way he did, Mr Mates intended to coerce Kane.  His conduct was, I would hold, in contravention of s 43(1) of the BCII Act.

126               That brings me to the last of the applicant’s allegations under s 43 of the BCII Act, that Mr Mates’ comments to Mr Leonard on 31 July 2006 that “we’ll go through all this again” was a threat made with intent to coerce Kane.  I have held (par 82 above) that it was a threat.  Clearly it was said with intent to have Kane employ or engage a labourer.  And, for reasons given above, it was illegitimate.  That is to say, the comment amounted to a threat to do again what I have held was illegitimately done on 31 July 2006.  In the circumstances, I uphold this allegation.

LIABILITY OF THE UNION UNDER THE BCII ACT

127               In his case against the Union, the applicant relied upon s 69 of the BCII Act which provides, relevantly, that, for the purposes of the Act, conduct of an officer or agent of a “building association” is taken to be conduct of the association itself.  An “officer” of an association includes a representative, and an employee, of the association.  Mr Mates was such a person in relation to the Union.  The Union was a “building association” as defined in the BCII Act. 

128               The respondents conducted an undifferentiated case in which they met the applicant’s allegations on the merits.  It was not suggested that, if I should find that Mr Mates had contravened the BCII Act in some respect, the Union would not likewise be liable for that contravention.  In the facts of the case, Mr Mates was an organiser in the employ of the Union and, as I have said, clearly within the deeming provisions of s 69.  In the circumstances, I would apply to the Union the findings of contravention which I have made above in relation to Mr Mates.

DISPOSITION OF THE PROCEEDING

129               It was proposed by counsel for all parties that I should consider first the question whether the respondents had contravened the BCII Act as alleged by the applicant, and should then, if necessary, hear the parties further on the question of penalties, and also with respect to any other orders that may be appropriate in the light of my reasons.  I shall proceed in accordance with that proposal.

Associate:

Dated:         13 March 2009