FEDERAL COURT OF AUSTRALIA

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

THE COURT ORDERS THAT:

1.                  Each penalty set out in the 4th column of the table below be imposed on the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union for its contravention of the Building and Construction Industry Improvement Act 2005 (Cth) correspondingly referred to in the 3rd column thereof, constituted by the conduct engaged in, or the action organised or taken, by it correspondingly identified in the 2nd column thereof on the date or dates correspondingly set out in the 1st column thereof.

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2.                  Each penalty set out in the 4th column of the table below be imposed on the Construction, Forestry, Mining and Energy Union for its contravention of the Building and Construction Industry Improvement Act 2005 (Cth) correspondingly referred to in the 3rd column thereof, constituted by the conduct engaged in, or the action organised or taken, by it correspondingly identified in the 2nd column thereof on the date or dates correspondingly set out in the 1st column thereof.

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3.                  Each penalty set out in the 4th column of the table below be imposed on Mick Powell for his contravention of the Building and Construction Industry Improvement Act 2005 (Cth) correspondingly referred to in the 3rd column thereof, constituted by the conduct engaged in, or the action organised or taken, by him correspondingly identified in the 2nd column thereof on the date or dates correspondingly set out in the 1st column thereof.

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4.                  Each penalty set out in the 4th column of the table below be imposed on Tony Mavromatis for his contravention of the Building and Construction Industry Improvement Act 2005 (Cth) correspondingly referred to in the 3rd column thereof, constituted by the conduct engaged in, or the action organised or taken, by him correspondingly identified in the 2nd column thereof on the date or dates correspondingly set out in the 1st column thereof.

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5.                  Each penalty set out in the 4th column of the table below be imposed on Gareth Stephenson for his contravention of the Building and Construction Industry Improvement Act 2005 (Cth) correspondingly referred to in the 3rd column thereof, constituted by the conduct engaged in, or the action organised or taken, by him correspondingly identified in the 2nd column thereof on the date or dates correspondingly set out in the 1st column thereof.

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6.                  Each of the penalties referred to above be paid to the Consolidated Revenue Fund on or before 10 September 2010.

7.                  The application otherwise be dismissed.

8.                  The first and fourth respondents pay $50,000 by way of costs to the applicant.

9.                  The second, third and fifth respondents pay $100,000 by way of costs to the applicant.

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 Federal Law Search on the Court’s website.

REASONS FOR JUDGMENT

Introduction

1                     On 6 February 2009, the applicant, an Australian Building Construction Inspector appointed under s 57 of the Building and Construction Industry Improvement Act 2005 (Cth) (“the BCII Act”), commenced this proceeding, in which he claims penalties and injunctions against the respondents in respect of conduct alleged to be unlawful under ss 38, 43 and 44 of that Act.  The Statement of Claim, originally filed on 7 August 2009 and subsequently amended, alleges conduct by the respondents and others in connection with a construction project undertaken by John Holland Pty Ltd (“John Holland”) for strengthening works on the West Gate Bridge at Melbourne.  The first and second respondents, the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (“the AMWU”) and the Construction, Forestry, Mining and Energy Union (“the CFMEU”) respectively (together, “the respondent unions”), were, at relevant times, organisations registered under the Workplace Relations Act 1996 (Cth) (“the WR Act”).  The third and fifth respondents, Mick Powell and Gareth Stephenson, were organisers in the employ of the CFMEU.  The fourth respondent, Tony Mavromatis, was an organiser in the employ of the AMWU. 

2                     The proceeding has its factual context in a major industrial dispute played out between the respondents and John Holland in February, March and April 2009.  The first instance of what was said to be unlawful conduct occurred on 5 February 2009 and, as I have indicated above, the proceeding was commenced the following day, at which time only the respondent unions and Mr Powell were respondents.  Over the course of about the ensuing three months, the range of the applicant’s allegations expanded, in effect reflecting the respondents’ conduct of which complaint was made.  Mr Mavromatis was added as a respondent on 12 February 2009, and Mr Stephenson was added on 24 March 2009.  John Holland commenced a corresponding proceeding (“the Holland proceeding”) on 10 February 2009, to which the respondent unions, Messrs Mavromatis and Powell, and another AMWU organiser, Mick Bull, were then respondents.  Ultimately that proceeding was settled in May 2009 as part of the settlement of the dispute generally as between John Holland and the respondent unions.  On 15 May 2009, I gave John Holland leave to discontinue that proceeding. 

3                     The present proceeding was not settled, at least not so promptly.  However, at a mention on 23 February 2010, I was informed that a consensus of sorts had been reached by the parties, the content of which became apparent when terms of settlement were handed up on the first day of the trial, 1 March 2010.  Those terms were as follows:

1.         The Applicant will file an amended Statement of Claim directed to proof of           contraventions of the BCII Act specified in the two Tables (the Tables)           attached hereto.

2.         The Respondents will not consent to but will not oppose findings being made         by the Court that each of the contraventions set out in the Tables has been             committed in the manner described in the respective paragraphs of the      amended Statement of Claim.

3.         The Applicant will tender appropriate evidence directed to the liability of the         Respondents for the contraventions referred to in the Tables.  The     Respondents will inform the Court that they do not contest that evidence.

4.         The Respondents will not object to the admission into evidence of various             unsworn statements or outlines of expected evidence filed and served on        21 December 2009 regarding the events of 29 April 2009.

5.         The Applicant and the Respondents will each submit to the Court that, in the         event that the Court finds that the contraventions (or any of them) have          occurred, the penalties referred to in the Tables are within the appropriate    range of penalties for the contraventions to which those penalties correspond.

6.         Further, the Applicant and the Respondents will jointly apply to the Court for, make submissions in support of, and may each lead evidence directed to         and in support of as being appropriate, the imposition of:

            (a)        the penalties in the Tables which correspond to each of the                                  contraventions, totalling $298,000 in relation to the first Respondent                      (the AMWU), $858,000 in relation to the second Respondent (the                      CFMEU), $71,000 in relation to each of the third and fifth                            Respondents and $27,000 in relation to the fourth Respondent; or

            (b)        in the event that not all of the contraventions are found by the Court                     to have occurred, the corresponding penalties referred to in the                            Tables for each of the contraventions that are found by the Court to                have occurred.

7.         The Applicant will seek orders that the First and Fourth Respondent pay his          costs in the sum of $50,000 and that the Second, Third and Fifth Respondent             pay his costs in the sum of $100,000.  The respondents will not oppose the Court making those orders.

TABLE OF PENALTIES AGREED BETWEEN THE APPLICANT AND THE SECOND, THIRD AND FIFTH RESPONDENTS

1.         In the following Table:

            1.1        CFMEU means the Second Respondent;

            1.2        Powell means the Third Respondent; and

            1.3        Stephenson means the Fifth Respondent

TABLE OF PENALTIES AGREED BETWEEN THE APPLICANT AND THE FIRST AND FOURTH RESPONDENTS

2.         In the following Table:

            2.1        AMWU means the First Respondent; and

            2.2        Mavromatis means the Fourth Respondent.

4                     In the result, a great deal of uncontested evidence was led by the applicant in affidavits, witness statements and the form of video footage.  My path through this evidence was guided by detailed written submissions made on behalf of the applicant and by a chronology identifying the evidence which related to each day of the dispute, and in many cases to each moment of each day.  None of the witnesses was called for cross-examination, and the respondents did not submit that any of them should not be believed.  Further, to the extent that the applicant’s case was inferential, the respondents did not submit that the inferences which I was invited to draw by the applicant – or which otherwise were fairly available on the primary evidence – should not be drawn. 

5                     As will be apparent from the tables of agreed penalties set out above, the applicant grouped the respondents’ conduct in periods of up to 11 days.  This was said to reflect patterns of conduct comprising individual incidents, which, taken together, amounted to single courses of conduct.  Thus the conduct of each respondent over the period 3-10 March 2009, for example, was said to amount to a single contravention of each of ss 43 and 44 of the BCII Act on the part of that respondent.  The respondents raised no objection to the organisation of the evidence in this way, and I shall adopt it in my reasons which follow. 

6                     As I have said, there are three provisions of the BCII Act which, according to the applicant, the respondents have contravened.  I shall refer to the terms of those provisions in detail later, but I note at this stage that s 38 proscribes “unlawful industrial action” (including a failure or refusal to attend for building work which is “industrially-motivated” – an expression to which I shall return); s 43 proscribes action taken with the intent to coerce a person to employ, or not to employ, a person as a building employee or to engage, or not to engage, a person as a building contractor; and s 44 proscribes action taken (or threatened to be taken), and refraining (or threatening to refrain) from taking action, with intent to coerce, or to apply undue pressure to, a person to agree to make a building agreement under Pt 8 of the WR Act.  Sections 43 and 44 in particular are relevant in the present case, since the essence of the dispute at the West Gate Bridge was John Holland’s refusal to make an industrial agreement with the respondent unions and its refusal to adjust the contract rate of a sub-contractor to reflect such an agreement which it had made with those unions, and the respondents’ insistence that workers who had been dismissed by that sub-contractor as a result of John Holland’s refusal should be re-employed on the bridge and that other workers, engaged on the bridge either directly or through another sub-contractor which did not have such an agreement, should not be so engaged. 

Geography

7                     There were four locations at which the respondents, as alleged by the applicant, engaged in conduct in contravention of the BCII Act.  Two of those locations were in the immediate vicinity of the West Gate Bridge itself.  The bridge crosses the Yarra River along an alignment which is generally north-west/south-east.  Immediately to the west of the river, and running under the north-western approach to the bridge, is a road, running north-south, called Hyde Street (which becomes Douglas Parade to the south of the bridge).  To the west of Hyde Street is a large allotment which was used as a depot and working site for the project.  This was described in the evidence as “the site facility”.  The main entrance to the site facility was at its eastern end, off Hyde Street.  A second entry was at the western end of the site facility, off Hall Street.  Most of the activities which occurred in the early days of the industrial dispute to which I will refer took place at one or other, or both, of these entrances. 

8                     The second location of concern was a smaller allotment immediately to the east of the river, and extending under the arches of the bridge at that point.  This was described in the evidence as “the eastern compound”.  On the eastern side of the river, immediately to the north-east of the bridge structure, and parallel therewith, is a dead-end street called Sardine Street.  The main entrance to the eastern compound led off Sardine Street.  At its north-western end, Sardine Street intersects with Lorimer Street, a main road which follows the course of the river to the north-east and, at its south-western end, terminates at the corner of Sardine Street.  It should be apparent from this description that the conventional means of access to the eastern compound would be along Lorimer Street, turning left into Sardine Street, and then turning right through the entrance into the compound.  Much of the allegedly unlawful conduct of the respondents towards the end of the period of disputation occurred in the vicinity of the eastern compound. 

9                     The third location of interest was a commercial office building on the corner of Williamstown Road and Smith Street, Port Melbourne.  This was used by John Holland as the administrative head office for the project, and was described in the evidence as “the project head office”.  At this point, Williamstown Road is a divided carriageway.  The main pedestrian entrance into the project head office led off Williamstown Road.  There was a vehicular entrance into the project head office, by way of an opening shuttered with a roller door, leading off Smith Street. 

10                  The fourth location of interest was the corporate head office of John Holland in Trennery Crescent, Abbotsford.  This location is well away from the vicinity of the West Gate Bridge, and became relevant only because the conduct of the respondents at the project head office obliged John Holland to use the corporate head office for the induction and training of certain workers, in circumstances to which I shall refer. 

Background to the dispute

11                  David Cassells was John Holland’s general superintendent for the West Gate Bridge project.  He explained that the project involved steel and concrete strengthening work to enable the bridge to carry ten lanes of traffic, rather than its existing capacity of eight lanes.  The estimated cost of the project was $240,000,000.  The project was scheduled to be completed in October 2010. 

12                  In January and February 2009, the work being done was “enabling works”, which involved opening up access through the steel section of the bridge, through diaphragms and webs, and introducing walkways and monorail systems to enable the strengthening work to be performed.  At this time, save for the managerial and supervisory staff of John Holland, and a small group of specialist paint removers, the workforce on the project consisted of 32 employees of a labour hire concern called Civil Pacific Services (Vic) Pty Ltd (“Civil Pacific”). 

13                  It seems that John Holland proposed to undertake much of the work on the bridge project by the use of contractors, and also to undertake some of the work through its own directly employed labour.  John Holland was party to an industrial agreement with the Australian Workers Union (“the AWU”), another organisation registered under the WR Act, called the John Holland Pty Ltd and Australian Workers Union Construction Agreement 2008-2010 (“the Southern Region Agreement”).  Civil Pacific was a party to an industrial agreement with the AWU, the Civil Pacific Services and Australian Workers Union Construction Industry Certified Agreement 2008-2010 (“the Civil Pacific Agreement”).  I infer that John Holland took the view that the Southern Region Agreement was an existing instrument appropriate for the coverage of the kinds of labour that were to be engaged on the bridge, and that Civil Pacific, as a contractor to John Holland, likewise had settled industrial coverage under the Civil Pacific Agreement.  It seems (as will be conspicuously apparent in what follows below) that the commercial terms under which Civil Pacific contracted with John Holland were based upon the assumption that the Civil Pacific Agreement would govern the wages and conditions of employment of those employed by Civil Pacific on the project. 

14                  In the months leading to the commencement of the project, the respondent unions became concerned that they would have no role in the industrial representation of workers engaged on the project.  In the first instance at least, they were concerned that the workers employed by Civil Pacific, and such workers as were thereafter to be employed by John Holland, would have their wages and conditions governed by agreements to which they (the respondent unions) were not parties.  In late January 2009, both Mr Cassells and Bradd Hamersley, Regional Industrial Relations Manager for the southern region of John Holland, had discussions about the project with representatives of the respondent unions, principally Messrs Powell, Stephenson and Mavromatis.  Although he does not mention the actual date, on one occasion Mr Cassells met with Mr Mavromatis and Mr Bull.  This meeting was arranged by the HR/IR Manager for Civil Pacific, Jamie McHugh.  Mr Cassells gave Mr Mavromatis some broad details about the project, including the types of trades that would be working on it.  A few days later, a similar meeting was held between Mr Cassells and Messrs Powell and Stephenson.  Mr Cassells gave them too some general information about the project, including the trades that would be working on it, and the duration of the project.  Either Mr Powell or Mr Stephenson asked whether there was any agreement (presumably, any industrial agreement) covering the project, and Mr Cassells responded that he was not part of the negotiations concerning any agreement to cover the project, and could not answer that question. 

15                  On 21 January 2009, Messrs Powell and Stephenson entered the site facility without a right of entry notice.  Mr Hamersley complained to the CFMEU about that.  On the following day, John Holland received a right of entry notice from the CFMEU, proposing that the right would be exercised on 23 January 2009.  John Holland rejected this notice, according to Mr Hamersley, “due to membership eligibility”.  That was, I gather, a reference to the operation of s 760(a) of the WR Act, which provided a right of entry, for the purposes of holding discussions with employees, only where those employees were covered by an award or collective agreement that was binding on the organisation concerned. 

16                  On 28 January 2009, Mr Hamersley met with Messrs Powell and Stephenson (at the latters’ request).  Mr Stephenson had indicated that he wanted to meet in order to discuss making an agreement to cover the project.  Mr Hamersley assumed that, consistently with previous practice on such projects, it was Mr Stephenson’s intention, and the intention of the CFMEU, to make any such agreement under Part 8 of the WR Act.  At the meeting on 28 January 2009, Mr Hamersley said that John Holland was discussing making an agreement “with various parties”.  He then informed Messrs Powell and Stephenson of a range of terms and conditions that John Holland would desire to have in an industrial agreement to cover the project.  Having heard this presentation, Mr Stephenson said that what John Holland wanted was different from what the CFMEU normally had in their agreements.  He said that he had no authority to agree to the types of provisions proposed by Mr Hamersley, and would refer the matter to the President of the CFMEU, Ralph Edwards.

The Civil Pacific dispute

17                  On the morning of 3 February 2009, the respondent unions caused to be distributed to the Civil Pacific workers on the project a flyer which announced the holding of a mass meeting at 10:00 am that day.  The meeting was to be held at the site facility or, if the relevant union representatives’ access thereto were denied by John Holland, at the Hyde Street gate.  As things transpired, John Holland did deny Messrs Mavromatis, Powell and Stephenson entry to the site facility.  At that time, there was a discussion between those men and Mr Cassells, in the course of which Mr Mavromatis said that John Holland “had better start working with” the respondent unions, adding that, if it did not, things would get “very hot”.  Mr Cassells said that he would not stop the workforce from attending the meeting called by the respondent unions.  The meeting proceeded at the gate to the site facility and was attended by about 15 Civil Pacific employees.  I infer that the meeting took place during those employees’ morning break. 

18                  As reported by Mr Stephenson to Mr Hamersley at about lunch time on 3 February 2009, the Civil Pacific workers had, at their meeting, rejected the notion that they should be represented by the AWU and had said that they wanted to be represented by the respondent unions.  They wanted John Holland to enter into bargaining negotiations with the respondent unions to make an industrial agreement for the project.  On the same day, Mr Stephenson signed a letter, written on behalf of the respondent unions, requesting a meeting with John Holland to discuss an industrial agreement at the project.  He said that it was the unions’ intention to report back to their members on 5 February 2009 at 10:00 am.  He attached a copy of the resolution passed at the meeting of Civil Pacific workers that morning.  It was as follows:

This meeting of AMWU (Metals) and CFMEU members calls on John Holland Pty. Ltd. to enter into immediate and meaningful discussions with our two unions regarding a West Gate Bridge Strengthening project agreement.

Furthermore, having heard a report from the AWU regarding their discussions with the company, we completely reject the notion that the AWU have any rights of representation on this job.

19                  At 10:00 am on 5 February 2009, Messrs Powell and Mavromatis conducted a meeting of the Civil Pacific workers outside the Hyde Street entrance to the site facility.  Of the 30 Civil Pacific workers on site that day, 24 attended the meeting.  At 10:30 am (the appointed time for resumption of work after the morning break) three of those workers returned to work on the site.  The other 21 workers remained meeting with Messrs Powell and Mavromatis until about 11:00 am, when they returned to work.  As they returned, Mr Cassells informed them that John Holland would be speaking to Civil Pacific and to the Australian Building and Construction Commission (“the ABCC”) about the matter.  Those 21 workers did not resume work but left the site.  They remained absent from work for the remainder of that day.  Although there was no direct evidence as to why those workers acted in this way, my attention was drawn to the provisions of s 507(2)(a) of the WR Act, the effect of which would seem to be that, because they were 30 minutes late back from their morning break, their employer was obliged to withhold four hours’ pay from them in relation to that day.  One possible inference as to why they did not return to work was that, having heard Mr Cassells’ intimation that he would inform Civil Pacific and the ABCC of their failure to return to work promptly after their break, they took the view that, if they were not to be paid for the ensuing three and a half hours, they did not propose to work them. 

20                  The applicant obtained, on subpoena, records of calls made from the mobile telephones of the individual respondents and of a number of other persons whose involvement in such communications was considered to be relevant.  From those records, it appears that Messrs Mavromatis, Powell and Stephenson were in contact with both the management and some employees of Civil Pacific after the meeting on 5 February 2009.  Very shortly after the conclusion of the meeting, Mr Mavromatis made telephone contact with Dean Cheney, an employee of Civil Pacific.  On three occasions between 11:57 am and 2:40 pm on that day, Mr Mavromatis spoke to Mr McHugh by telephone.  At 2:50 pm and 2:53 pm, Mr Powell spoke by telephone with Barry Slaven and Canice Lynch (respectively), each an employee of Civil Pacific.  At 6:41 pm, Mr Mavromatis had a long telephone conversation with Mr McHugh.  In the absence of any evidence from the respondents, I would infer that, in the telephone conversations with Mr McHugh, Mr Mavromatis discussed the AMWU’s objective to have Civil Pacific employees on the project covered by an agreement to which it (the AMWU) was a party.  It is also a fair inference that the subject of the conversation between Mr Mavromatis and Mr Cheney, and of the conversations between Mr Powell and Messrs Slaven and Lynch, was the direct action taken by the respondent unions and their organisers the following day, to which I next turn. 

21                  The Civil Pacific employees did not attend for work at the normal starting time on 6 February 2009.  Instead, a number of them participated in a picket which was established by the respondent unions at the Hyde Street entrance to the site facility.  By about 6:30 am on 6 February 2009, there were about 100 people maintaining a presence outside that entrance, and a gold Holden Commodore vehicle was positioned so as to block the entrance.  At about 7:00 am, Gary Marshall, General Superintendent, Southern Region, for John Holland, estimated that there were about 50 men on this picket line.  They included Messrs Mavromatis and Powell.  At about 7:30 am, Mr Powell telephoned Mr Marshall.  Mr Marshall asked Mr Powell to remove the car that was blocking the entrance, adding that he (Powell) was stopping workers and deliveries getting to the job and that, if there were an emergency, it would be necessary to get an ambulance through.  Mr Powell replied that there was enough room for an ambulance, “but that’s all you will be getting through”.  He added: “This is big and if you want this to end then you better start talking to us about an agreement”. 

22                  At about 8:00 am, two portable toilets were delivered to the vicinity of the picket line at the Hyde Street entrance to the site facility.  These had been ordered by the CFMEU, and Mr Powell signed for the receipt of them. 

23                  At about 9:00 am, Mr Marshall spoke to Mr Mavromatis.  The conversation, as recorded by someone who was accompanying Mr Marshall at the time, was generally as follows:

Mavromatis: “We’re here to sort this out, it’s up to you guys. Just remember you brought this on yourself.”

Marshall: “We’re not worried.”

Mavromatis: “This is a big project.  You’ll get bad media.  See how many projects you get after this.  It will be your last project.”

Marshall: “We’re not going anywhere.”

Mavromatis: “You’re colluding with the AWU and doing bad deals.  You’re breaching freedom of association.  This is going to be bigger than you guys can handle.  You’d better come talk to us.”

24                  Despite the removal, at the request of the police, of the car blocking the Hyde Street entrance, the picket line was effective in preventing deliveries to the site facility.  A number of vehicles were turned away.  The respondent unions made little secret but that it was their doing and, in addition to the portable toilets to which I have referred, they had provided a camper-trailer with a barbeque for the benefit of those standing on the picket.  There was neither evidence nor suggestion that any employee of Civil Pacific made any attempt to enter the site for the purpose of working.  As I have said, there were some Civil Pacific employees on the picket line, and I infer that, to the extent that there were others who were not on the picket line, the latter either chose not to attend for work as part of the respondent unions’ campaign against their employer and John Holland, or took the view that it would not be in their interests to cross the picket line.  As to the latter aspect, Mr Marshall gave the following evidence without objection:

Based on my experience in the civil construction industry, it is a well known and well accepted position within this industry that given the industrial strength of the CFMEU, if a sub-contractor that works in civil construction or any person that works in civil construction were to cross a CFMEU supported or endorsed picket line, the CFMEU would take steps to ensure that such sub-contractor or person did not in the future work in the civil construction industry.

25                  On 6 February 2009, I made interim orders on the application of the applicant, operative until 4:30 pm on 12 February 2009.  They restrained the respondent unions and Mr Powell from, amongst other things, preventing or hindering the access of any person or vehicle to the site facility and (with certain exceptions) from attending, from organising any person to attend, and from placing or leaving any vehicle, trailer, apparatus, equipment or thing, within 100 metres of any entrance to the site facility.

26                  At about 6:40 am on Monday 9 February 2009, Mr McHugh rang Mr Cassells.  He said that Civil Pacific had signed an agreement with the respondent unions.  He said (as was the case) that the Civil Pacific workforce had voted that morning in favour of accepting the agreement.  He said that the workers had resolved to return to work under the existing AWU agreement (the Civil Pacific Agreement) for three days only, to allow John Holland to review the new agreement with the respondent unions, and to decide whether to accept it.  As shall become apparent presently, this related to the question whether John Holland would adjust its contract rates with Civil Pacific to reflect the making of the new agreement. 

27                  Shortly after Mr Cassells arrived at the site facility at about 6:50 am on 9 February, three employees of Civil Pacific approached him.  They were Toby Paterson, Barry Slaven and Colin Faulds.  They told Mr Cassells that they had been appointed spokespersons for the Civil Pacific workforce, and that he should deal through them. 

28                  At 10:14 am on 9 February 2009, Mr Hamersley returned the call of Mr McHugh.  The latter said that he had struck a new agreement that covered the project with the respondent unions.  He said that Civil Pacific had relationships with high-ranking union officials, and was not willing to risk those relationships for the sake of one job.  He had been told by the respondent unions that they were not “dropping this” and that John Holland “was to expect a fight”.  There was some discussion as to whether John Holland would accept the new agreement, and Mr Hamersley said that Civil Pacific’s own individual arrangements were up to it, and that John Holland’s decisions would be commercial in nature. 

29                  Also on 9 February 2009, Civil Pacific wrote a letter to the West Gate Bridge Strengthening Alliance, which shortly came to the attention of John Holland, announcing the making of the new industrial agreement with the respondent unions, and enclosing a copy of that agreement.  In that letter, Civil Pacific sought the adjustment of its contract rates to reflect the increased costs which would flow from the making of the agreement. 

30                  On 10 February 2009, Mr Cassells met with Mr Slaven.  Mr Cassells said that he needed to understand what took place at the meeting on the morning of the previous day, and what the workforce’s intentions were.  Mr Slaven said that, at the meeting, the workforce were informed that Civil Pacific had signed an agreement with the respondent unions over the weekend, and were asked to accept the agreement and to return to work for a period of three days under the Civil Pacific agreement.  Mr Slaven said that if John Holland did not agree to the terms of the new agreement there would be “big trouble”, and when Mr Cassells inquired what he meant by this, Mr Slaven said that the unions intended to “go national with this issue” and that the workforce fully supported it.  Shortly after this conversation, Mr Powell telephoned Mr Slaven, and they spoke for nearly three minutes. 

31                  On 12 February 2009, on the application of the applicant, I extended the interim restraints which had been made on 6 February 2009, and added Mr Mavromatis as a respondent.  On the same day, I made procedural orders in the Holland proceeding.  

32                  On 17 February 2009, I extended the interim restraints which had been made on 6 February 2009 pending the hearing and determination of the proceeding.  At this stage, those restraints applied only to the respondent unions and to Mr Powell.  I made like orders in the Holland proceeding, and Mr Mavromatis, as a respondent to that proceeding, was also bound thereby.

33                  There is no direct evidence of the response of the West Gate Bridge Strengthening Alliance, or of John Holland, to Civil Pacific’s request for an adjustment to its contract rates, but it seems to be common ground that the request was declined.  Further, I could so infer from what transpired at a meeting (of which there is direct evidence) at about 9:20 am on 2 March 2009 between Mr McHugh, Mr Cassells and the John Holland Construction Manager, Phil Cormick.  Mr McHugh said that Civil Pacific could not afford to pay the rates prescribed in the agreement which it had reached with the respondent unions, given the terms of its existing arrangements with John Holland.  He said that Civil Pacific was, therefore, going to sack its workforce at 10:00 am that morning.  He declined Mr Cormick’s request to wait until the end of the shift that day to make the terminations.

34                  Shortly thereafter, Mr McHugh spoke to the Civil Pacific employees who were working at the site facility.  It seems that he did dismiss them from their employment at that point, as Mr Slaven subsequently told Mr Cassells that many of the employees were in shock and were not in a fit state to drive home.  Mr Cassells addressed the Civil Pacific (former) employees as a group and said, amongst other things, that they could apply for direct employment with John Holland if they wanted to.  Alan Foster, an industrial relations and human resources manager employed by John Holland Group Pty Ltd (which provided staff to John Holland) told the Civil Pacific workers that John Holland would go through its normal due diligence procedure in relation to hiring employees, and that they were all invited to apply for a job.  He requested that they send him their resumes.  Mr Slaven asked Mr Foster if John Holland would guarantee the Civil Pacific workers their jobs.  Mr Foster replied that John Holland could not do this, but would go through the regular due diligence procedures when hiring new employees. 

35                  Telephone records disclose that, on 2 March 2009 after the termination of the employment of the Civil Pacific workers, there were numerous contacts as between persons whose conduct later became relevant to the matters alleged by the applicant in this proceeding.  Mr McHugh spoke to Mr Powell for about three minutes; Mr Faulds spoke to Mr Mavromatis for about a minute; Mr Slaven spoke to Mr Powell (in two calls) for about two minutes; Mr Powell spoke to Mr Stephenson for about two minutes; between 10:55 am and 2:06 pm, Mr Powell spoke to Mr McHugh three times, Mr Powell spoke to Mr Slaven four times, Mr Stephenson spoke to Mr Slaven once, Mr Powell spoke to Mr Mavromatis twice, Mr Stephenson spoke to Mr Mavromatis twice and Mr Powell and Mr Stephenson either contacted or attempted to contact each other on fourteen occasions. 

The events of 3-10 March 2009 at the project head office

36                  On 3 March 2009, there commenced a concerted campaign by the respondents and others, the apparent intent of which was to disrupt normal commercial life for John Holland and those who would deal with it.  On that day, the respondents’ activities were located not in the vicinity of the bridge itself, but outside the project head office.  At about 7:00 am on that day, there were 30-40 people standing outside the Williamstown Road entrance to the project head office, including a number of former Civil Pacific employees, and Messrs Powell, Stephenson and Mavromatis.  The people present were displaying “CFMEU” and “AMWU” flags.  When Mr Foster arrived at the project head office at about 7:40 am, he recognised Mr Slaven among the group.  He asked Mr Slaven, “What’s all this?”  Mr Slaven replied, “The blokes want their jobs”.  Mr Powell asked Mr Foster, “When are you going to give the blokes a job?”. 

37                  At about the same time, there were also about ten men standing around one of the pedestrian entrances to the project head office leading off Smith Street.  Most of the men had either AMWU or CFMEU logos or badges on their clothing.  Two of them, former Civil Pacific employees, asked Mr Marshall, “What are you going to do about our jobs?” Another member of the group told Mr Marshall that Mr Powell was representing them.  Mr Marshall then spoke briefly to Messrs Mavromatis, Powell and Stephenson.  He told them that he would like to have a meeting to discuss the picket line that was occurring there that day.  Mr Powell agreed with that suggestion.  As Mr Marshall was approaching the entrance to the project head office, some former Civil Pacific employees at first blocked his way, but moved slightly to allow him through, while making remarks which included: “Gary, nice to see that you’ve got a fucking job.”

38                  Mr Marshall arranged for a meeting to be held that morning at the corporate head office at Abbotsford.  That meeting took place at about 9:00 am, and was attended by Messrs Marshall, Hamersley, Cassells and Foster and Elliot Bull (an employee relations staff member) from John Holland, and by Messrs Powell, Stephenson and Mavromatis.  Mr Hamersley, who chaired the meeting, asked the union representatives what was the intention of the industrial action at the project head office.  Mr Stephenson responded by asking what John Holland was going to do about the jobs of the former Civil Pacific employees.  Mr Marshall said that these people were not John Holland employees, and that they were free to apply for a job with John Holland.  Mr Stephenson asked under what agreement would John Holland employ the workers, and Mr Hamersley responded that it would be the Southern Region Agreement.  Mr Mavromatis said that the Southern Region Agreement did not cover metal work, to which Mr Hamersley, or Mr Marshall, responded that the welding scope of the project was less than 0.06% of the total project workload.  Mr Mavromatis said that the Southern Region Agreement did not cover boilermakers, to which Mr Marshall responded that it did, in a classification described as “special class tradespeople”.  Mr Stephenson asked, “What does that mean?”, and Mr Powell added, “It means they can hire whoever they want.”  Mr Marshall responded that it did mean that, and Mr Hamersley said that, if the unions did not think that the agreement covered this type of work, “Why haven’t you taken it up with the AWU?”  Mr Hamersley recalls that he said that John Holland was not interested in any demarcation dispute between unions, and that they should take such matters up with Trades Hall. 

39                  A little later in the conversation, Mr Mavromatis said that the reason for the industrial action at the project head office was the termination of the employment of the former Civil Pacific employees.  Mr Hamersley said that those people were not employees of John Holland, but that they were welcome to put in applications for employment.  Mr Stephenson said that John Holland was trying to restrict the freedom of association of these persons by forcing them to work under the Southern Region Agreement.  While doing this, according to Mr Bull, Mr Stephenson was yelling and pointing his finger at Messrs Marshall and Hamersley.  Mr Marshall said that John Holland intended to keep the Southern Region Agreement.  Mr Stephenson said that the former Civil Pacific employees were entitled to choose their representation as to the agreement under which they would work.  At about this point, it seems, Mr Mavromatis rose from his seat, pointed to Messrs Marshall and Hamersley and said that John Holland was playing “big balls” and forcing the Southern Region Agreement on to these workers.  After Mr Mavromatis sat down, Mr Powell said to him quietly “These guys are full of shit”.  There was some discussion as to whether John Holland would employ the former Civil Pacific workers, and Mr Marshall said that, if they were going to be employed, they would be employed under the Southern Region Agreement.  This appeared to make Mr Powell angry.  He stood up and said, “You’re all fucking telling lies”; and Mr Mavromatis stood up and said, “This is fucking bullshit”.  Mr Mavromatis said that, in the construction industry in Victoria, that kind of behaviour did not happen, adding, “The industry is small and things don’t get forgotten easily”, and “You guys need to get an agreement with the AMWU and the CFMEU”.  At about this point, Mr Powell said (as recalled by Mr Bull), “Right, that’s it, we’re done”, or, as recalled by Mr Hamersley, “Come on guys, let’s go, we’re wasting our time”.  As the union representatives were standing up to leave, Mr Hamersley said, “Guys, I just want you to be aware…”, but before he could complete his sentence, Mr Powell intervened and said (according to Mr Hamersley) in a threatening, loud and aggressive voice, whilst pointing his finger at Mr Hamersley, “You be fucking aware!”.

40                  This was an important meeting, because it shone a light on to the respondents’ objectives.  As was made clear at the meeting, the immediate objective of the protest outside the project head office on 3 March 2009 was to secure the re-employment of the workers who had been employed by Civil Pacific.  However, it was equally clear that the respondents would not countenance an expedient which involved the employment of those workers under the Southern Region Agreement.  The commercial reality facing John Holland was that, at some point, the work which was to have been done by Civil Pacific (and other similar work further into the life of the project) would have to be done by someone, and the respondents well knew that.  Had the respondents’ only concern been the re-employment of the former Civil Pacific employees, there would have been no controversy as to the application of the Southern Region Agreement.  Indeed, it was that controversy which led to the ill-tempered termination of the meeting.  It seems clear that the larger enterprise of the respondents was to secure a commitment from John Holland that it would make an agreement for work on the project to which the respondent unions would be parties. 

41                  After the meeting at Abbotsford, Messrs Powell, Stephenson and Mavromatis returned to the group of protesters outside the project head office.  In the company of Messrs Mavromatis and Powell, Mr Stephenson addressed the group through a megaphone, urging them to continue with their protest, and saying things like “Stick together – we will win this” and “Continue what you are doing, keep going we will win this”.  At about 11:30 am, Mr Mavromatis led a group of these protesters chanting, “What do we want? Our jobs! When do we want it? Now!”.  Mr Mavromatis then walked past the office windows of the project head office, yelling “get fucked” very loudly and aggressively, whilst giving a middle finger gesture, towards the office.  Mr Powell was in the vicinity at the time.  Mr Paterson was also there.  At one point, he stood in the middle of the road waving a union flag and yelling out, “come on lads, keep going”. 

42                  The protesters were carrying handwritten signs of about half a metre in length, bearing such messages as “Sacked by John Holland for being with a union”, “Shame John Holland” and “Sacked because we wanted a choice”.  Stickers, bearing the initials of the respondent unions, and similar paraphernalia, were pasted on to the doors, windows and other panels of the project head office  During the course of this day, and on other days thereabouts when the protesters were present at the project head office subsequently, some of them urinated publicly in the parkland opposite.  There was usually a number of protesters sitting on the steps leading to the sliding glass doors at the entrance to the project head office, and people entering and leaving, would, on occasion, be required to walk around these protesters.  At about midday on 3 March 2009, Mr Powell placed his face very close to the front (glass) entrance to the project head office, and mouthed some words which were inaudible to those inside.  According to a security guard to whom these gestures were directed, Brian Lee, Mr Powell looked very angry and menacing.  A female staff member of John Holland reported to Mr Marshall that, as she was attempting to enter her workplace that day, someone had said to her, “Why are you lucky enough to have a job and I haven’t?” 

43                  These kinds of activities continued on 4 March 2009.  About 40 protesters gathered outside the project head office early on that day, who, in Mr Marshall’s observation of it, seemed to include fewer former Civil Pacific employees than on the previous day, but more officials of the respondent unions, including Alex Tadic and Frank O’Grady of the CFMEU.  At about 7:10 am, Mr Powell arrived in a CFMEU vehicle, towing a trailer upon which a barbeque was mounted.  The barbeque was shortly put to its intended use.  Sunshades which had been delivered by Mr Powell, and two marquees, were erected by those present.  When Mr Marshall arrived at the project head office at about 8:00 am, he saw two of the protesters urinating on the project head office building, and on the front garden.  He was not able to enter the office through the front entrance, as there were about 12 people sitting on the steps.  He called the police and, after they arrived, he asked them to request that the protesters move the barbeque trailer and the marquees to the other side of the road, and also that they hire a portable toilet.  Mr Marshall saw the police speaking to the protesters, but, after the police left, there was no change in their behaviour.  Mr Paterson removed the lock on the John Holland flag pole and hoisted a CFMEU flag.  After Mr Lee opened the glass sliding doors to the project head office building to allow access for an employee, he found that the doors would not re-close.  It transpired that small stickers had been placed over the light sensors of the opening mechanism of the doors.  That this had been done by one of the protesters is a matter of ready inference.  While he was in the course of removing these stickers, Mr Lee was aggressively abused by one of the protesters.  More stickers, containing union slogans, were placed on the windows and doors of the project head office.  At about midday, the protesters held a meeting in the park opposite the building, which was addressed by Messrs Mavromatis and Stephenson.  Shortly thereafter, Mr Powell re-attached the barbeque trailer to the CFMEU vehicle, which then departed.  Generally, the activities of the protesters on 4 March 2009 appeared to have been superintended by Messrs Powell, Stephenson and Mavromatis, and to have been calculated to vex and to insult those working for John Holland at the project head office.

44                  Early on the morning of 6 March 2009, there were about 30-40 protesters gathered outside the project head office near the Williamstown Road entrance.  When Mr Lee arrived at about 6:00 am, he noticed that dirt and tan-bark had been thrown over the steps of the entrance, and that the planter box nearby had been stripped of all its tan-bark.  Protest signs had been stuck on the glass doors, and the newspaper and milk deliveries were missing.  According to Mr Lee, at about 7:00 am, the barbeque and sun shades were again erected by the protesters, and one of the protesters placed a slab of beer cans against the wall of the project head office adjacent to where the sun shades had been set up.  Others of the protesters availed themselves of this resource.  At about 8:05 am Mr Mavromatis was seen kicking dirt out of the garden bed of the project head office, and walking inside the planter box.  He removed dirt from his boots by forcefully banging them against the automatic glass doors of the project head office.

45                  At about 10:00 am Mr Marshall arrived at the project head office, and went to enter through the side entry off Smith Street.  He was heckled by a group of protesters there present.  One former Civil Pacific employee in particular yelled at him while he was attempting to make his way through a crowd of about ten protesters.  This person said, “You think you can get fucking scab labour on this project Gary, you’re a fucking idiot.  We all know who you are.  Where’s our job?”  Mr Marshall replied, “We have offered all of you the opportunity to apply for a position.”  The protester replied, “I wouldn’t work for the shit money you’re offering.”  Mr Marshall replied, “It’s $5 an hour better than any construction job in Victoria, including Eastlink.”  The protester replied, “We’ll get what we want and there will be no scab labour getting past this picket line.”  Mr Powell was present at the time, and Mr Marshall said to him, “You’d better control your boys, they’re starting to get out of control.”  Mr Powell replied, “You getting worried? It’s not my problem”; and he laughed.  Having entered the project head office, and viewing the protesters from the inside Mr Marshall noticed some of them drinking beer.  They were banging on the windows of the building, and yelling and kicking at the front door.  Mr Marshall called the police, who shortly arrived and spoke to the protesters.  After they had left, however, Mr Marshall observed no change in the behaviour of the protesters.  On leaving the building to go to a meeting at about 12:15 pm, Mr Marshall noticed that his car had a flat tyre.  Protesters nearby were laughing at him. 

46                  At about 11:45 am on 6 March 2009, Mr Powell addressed a group of about 30 or 40 of the protesters.  At about 12:20 pm, the protesters packed up the barbeque and sun shades, and started to leave.  Upon noticing two of the protesters handling the rope on the John Holland flag pole, Mr Lee took out his camera as if to take a photograph of them.  A short time later, Mr Mavromatis, who was sitting in his car at the time, took a photograph of Mr Lee, at which time he (Mavromatis) said, “smile cunt”.  He then commenced to abuse Mr Lee in words reported by the latter as:

Your whole family will be on this camera cunt….You just made it personal cunt….I’m gunna get the lot of you….I heard everything you said cunt….You’re fucking gone cunt….You’re fucked…laugh now cunt, I’ll fucking get you….Fucking coppa wanna-be….You fucking loser, you wanna get personal?  You don’t know how fucked you are….You’re gone cunt, you grey haired cunt.

Mr Lee did not respond to these taunts, but turned to walk back inside the project head office.  As he was doing so, Mr Mavromatis yelled at him: “You are too fucking stupid to be a copper so you had to be a security guard … Yeah, fuck off, you’re too dumb to fucking understand.”  Mr Mavromatis then drove off. 

47                  According to Mr Marshall, at about 2:00 pm on 6 March 2009, (Mr Lee put the time as approximately 1:30 pm), he returned to the project head office in his car, and noticed that all the protesters, and the “remnants” of the picket line, were gone.  Mr Lee recounted to him the abuse which he had received from Mr Mavromatis.  At about that point, Mr Mavromatis pulled up in his car behind where Mr Marshall’s car was stopped.  Mr Marshall asked Mr Mavromatis what he was doing “back here”, and Mr Mavromatis replied, “I’m watching you”.  Mr Marshall made a comment to the effect that he (Mavromatis) must be bored.  As Mr Mavromatis drove off, he yelled (with apparent reference to Mr Lee), “you fucking grey-haired cunt”.  Still outside the project head office, Mr Marshall took a telephone call from Mr Cassells.  While he was doing so, four vehicles pulled up, surrounding his car.  Between three and five men emerged from each vehicle, and they appeared to be drinking from cans of beer.  Within seconds, Mr Marshall was surrounded by these men.  He noticed some of the former Civil Pacific workers in the group.  The men began yelling and chanting.  Some of them, Mr Marshall thought, were “noticeably intoxicated”.  Mr Marshall terminated his phone conversation with Mr Cassells.  At that point, looking across the road, he saw that Mr Mavromatis was standing beside his own vehicle with his arms crossed, laughing.  The men surrounding Mr Marshall were chanting such things as “Give us our jobs and give us our rights”.  He was called “cunt” and “dog” by these men.  He managed to enter the project head office and telephone the police. 

48                  From his observation through the windows of the project head office, Mr Marshall could see Mr Mavromatis walk across the road with an AMWU flag.  The protesters present began chanting again, and banging on the windows of the building.  Some of them appeared to try to open the doors of Mr Marshall’s car.  He noticed some of them looking into the car, and writing down things that appeared to be inside the car.  This kind of behaviour continued for a period of about half an hour that it took the police to arrive.  When the police did arrive, this group of protesters disbanded.

49                  Mr Lee gave evidence which was, broadly, confirmatory of the evidence of Mr Marshall as to these incidents on 6 March 2009.  He added further details which involved him, and one of his colleagues called Jason Williams, which had not been mentioned by Mr Marshall.  After Messrs Marshall and Lee had gone into the project head office, Mr Mavromatis came up to the sliding glass doors of the building and abused him and Mr Williams, such as by calling Mr Lee “a grey-haired fucking woman”, and “ugly cunt” and a “copper wanna-be”.  Mr Mavromatis said to Mr Lee, “good job you did on the steps you fucking woman” (with apparent reference to the fact that Mr Lee had earlier been obliged to sweep the tan-bark from the steps which had apparently been scattered there by the protesters).  Mr Mavromatis yelled at Mr Williams, “Hey junior, what are you working with that ugly old cunt for, I tried to take a photo of him and my camera cracked”.  Mr Mavromatis put the AMWU flag up to the window with his face behind it, pulling it from side to side, and up and down, and saying “peek a boo”.  He said “I treat children like children”.  He then poked out his tongue at Messrs Lee and Williams, and moved it in and out, according to Mr Lee, as though “mimicking a person giving cunnilingus”.  Mr Mavromatis asked Mr Lee twice if he wanted to come outside saying, “Come on, you know you want to have a go” and “Come outside and have a go and see what happens, you know you want to”. 

50                  WorkPac Pty Ltd (“WorkPac”) is a specialist recruitment company providing employee placements to the construction industry and other industrial sectors.  It has over 26 offices located in the mining, engineering, manufacturing and construction hubs of Australia, and employs 300 staff to provide labour hire to other businesses as required, and the placement of part-time and permanent staff.  In early February 2009, John Holland engaged WorkPac to provide rigger/scaffolding labour on the West Gate Bridge project.  Six WorkPac employees commenced work on 20 February 2009, but, on 2 March 2009, this work was suspended by John Holland because of its dispute with Civil Pacific. 

51                  John Holland arranged with WorkPac to provide a second group of workers for the bridge project, to undergo site inductions on 10 March 2009.  Those inductions were to take place at the project head office, and, apparently, 10 March 2009 was chosen as it was thought by Mr Marshall that, being a rostered day off in the building industry, there would not be any picketing at that location on that day.  However, as a precaution, the Regional Manager for WorkPac, Mark Twentyman, arranged for the employees to meet nearby at a coffee shop at 7:30 am on 10 March 2009.  The idea was that they could observe the vicinity of the project head office, and allow sufficient time to pass to ensure that there was no picket in place. 

52                  By about 7:00 am on 10 March 2009, there was a group of about 20 protesters outside the project head office.  Two blue marquees had been set up in the garden area between the footpath and the building.  Some protesters were waving CFMEU flags.  A number of the WorkPac employees were gathered in the vicinity of the coffee shop as arranged.  They were approached by two men from the group of protesters, one described as short, of solid build and with an Irish accent, and the other described as tall, thinner than the short man, with black hair and unshaven.  Although there are slight variations in the evidence as to the conversation which ensued, in substance what transpired was the following.  The shorter protester asked whether the workers were from WorkPac, and were there for the West Gate Bridge induction.  The workers either denied this or said that they did not know what he was talking about, or similar.  The short man said that the workers were “fucking scabs”, and that the one who had responded in the negative was “a fucking liar”.  The short and tall men departed, the short one making a call on his mobile phone.  Within about 30 seconds, there were 20 or so protesters moving towards the WorkPac group.  The WorkPac supervisor then instructed his workers to leave the area, by vehicle.  As the WorkPac employees were walking to their cars, the protesters from the picket line were yelling such things as “fucking scabs, you’ll never get on the bridge, you’re stealing our jobs.”  The short man and the tall man, with two others from the picket, followed one of the workers to his car and (according to him) “surrounded” him.  The short man said, “Are you going to cross the picket?”.  The worker replied, “Yes”.  The short man said, “You’re fucked”.  The worker replied, “Fuck off and get out of my face.”  As the worker was getting into his car, the short man said “Now the fun begins, now the shit is going to start.”  He then turned and yelled to all of the men who had gathered nearby “Okay boys, let the fun begin.” 

53                  The WorkPac employees did return to their cars, and, led by their supervisor, drove a short distance away where they stopped and came together again.  At this stage Mr Twentyman arrived and noticed that Trent Padula, a former Civil Pacific employee, and another man were in a stationary vehicle nearby, observing the WorkPac group.  Mr Twentyman advised the group to travel to the corporate head office at Abbotsford, and, with him leading, those workers then departed, again in convoy.  The supervisor remained to the end, and drove slowly in the same direction.  He was followed by Mr Padula in his car, for a distance of about one kilometre. 

54                  At Abbotsford, the WorkPac employees were given their induction, and were instructed to attend at the Hall Street entrance to the site facility at 6:00 am the following day.  They arranged to meet at 5:30 am at a newsagency in Hall Street. 

The events of 11-13 March 2009 at the site facility and the corporate head office

55                  As mentioned above, the respondent unions and Mr Powell had been restrained, since 6 February 2009, from preventing or hindering the access of any person or vehicle to the site facility and (with certain exceptions) from attending, from organising any person to attend, and from placing or leaving any vehicle, trailer, apparatus, equipment or thing, within 100 metres of any entrance to the site facility.  A like restraint had been applied to Mr Mavromatis in the John Holland proceeding since 17 February 2009.  These restraints are relevant to the inferences that may be drawn as to the events of 11-13 March 2009 at the site facility, particularly with respect to the involvement of one David Kerin, an official of a body known as “Union Solidarity”.  There is no real question but that Mr Kerin and his organisation were providing support for the respondent unions’ campaign against John Holland.  However, for reasons which will appear, it is necessary to refer to the evidence from which the applicant submits that I should draw certain inferences as to the nature of the relationship between Mr Kerin and those unions (and their officials).

56                  On 18 February 2009, Mr Kerin contacted Mr Mavromatis by mobile phone.  The call lasted about four minutes.  Mr Stephenson rang Mr Kerin at 4:05 pm on 3 March 2009, the call lasting for 25 seconds.  Mr Kerin contacted Mr Stephenson at 5:34 pm on the same day, the call lasting for 32 seconds.  I think it unlikely that either of the communications between Mr Kerin and Mr Stephenson constituted a conversation of substance, and that the probabilities are that each represented a message left on a voicemail device.  This inference is consistent with the fact that Mr Stephenson again contacted Mr Kerin at 6:09 pm on the same day, this time the call lasting 16 minutes.  That was clearly a conversation of substance.  On the following day (4 March 2009), at least one of the protesters outside the project head office was wearing a garment with words “Union Solidarity” conspicuously displayed on it.  At 6:10 pm on that day, Mr Stephenson rang Mr Kerin, the call lasting for 5 seconds only.  At 6:56 pm, Mr Kerin rang Mr Stephenson, the call lasting 20 seconds.  Again, I would not infer that either instance represented a conversation of substance.  I would say the same thing about an 18 second call from Mr Kerin to Mr Stephenson at 9:41 am on 6 March 2009.  However, it seems that contact was finally made as between these two men, for at 9:45 am on 6 March 2009, Mr Stephenson called Mr Kerin, and the call lasted for about four minutes and 20 seconds.  The contacts referred to in this paragraph are not directly relevant to the events of 11-13 March 2009, but they provide a basis for inferring that Mr Stephenson was Mr Kerin’s main point of contact at about this time. 

57                  There were more telephone contacts as between Messrs Stephenson and Kerin on 10 March 2009.  There were two brief calls, and two SMS messages, passing between them between about 1:50 pm and 2:13 pm that day.  Again, I infer that these were attempts at contacts, rather than conversations as such.  Then, at 7:53 pm, Mr Kerin rang Mr Stephenson, and the call lasted about two minutes and 24 seconds.  On 11 March 2009, Mr Kerin rang Mr Mavromatis at 5:24 am, the call lasting 39 seconds.  It may not be safe to draw any inference about the nature of this call from the length thereof, but it is significant that contact was made, or attempted to be made, with Mr Mavromatis at that time.  Mr Stephenson rang Mr Kerin at 6:30 am, the call lasting two and a half minutes.  The same occurred at 7:21 am, this time the call lasting one minute and 40 seconds.  These two spoke again for about the same length of time at 8:17 am and at 8:47 am.  Shortly after the latter call, Mr Kerin sent an SMS message to Mr Stephenson.  On Mr Stephenson’s call, the two spoke for more than three minutes at 12:17 pm.  There was a further call from Mr Stephenson to Mr Kerin at 1:24 pm, but it lasted only 33 seconds, and may not have been a conversation of substance.  There was a short (19 seconds) call from Mr Stephenson at 6:08 pm, followed by a call (I infer a return call) from Mr Kerin at 6:18 pm, which latter call lasted eight minutes and 25 seconds.  An oddity of the telephone records on which the applicant relies is that, after only about six and a half minutes of this call, it is shown that Mr Kerin again rang Mr Stephenson from a different area of Melbourne, this second call lasting about three minutes.  I think there is enough in the telephone records to infer, however, that Messrs Stephenson and Kerin conversed at some length on the evening of 11 March 2009. 

58                  Over the period with which I am dealing, there were also numerous telephone contacts as between Mr Stephenson or Mr Powell of the one part and some of the former Civil Pacific employees of the other part.  Here the applicant relies on the involvement of Messrs Slaven and Paterson.  Mr Slaven was a member of both of the respondent unions.  During the course of the Civil Pacific dispute, he was one of the spokespersons for employees who gave support to the position of the respondent unions.  He was one of the more conspicuous participants in the protest at the project head office in the period following 3 March 2009.  He and Mr Powell were in telephone or SMS contact on a number of occasions on 10 March 2009.  Taking only those instances that indicated conversations of substance, there were calls of two and a half minutes at 12:09 pm, of about four and a half minutes at 4:37 pm and of nearly five minutes at 6:44 pm.  On the following day, 11 March 2009, there were calls of one minute and 23 seconds at 5:42 am, of just over a minute at 5:54 am, of 43 seconds at 6:09 am, of just over a minute at 6:13 am, of just under a minute at 6:25 am, of about two minutes at 6:38 am, of just over a minute at 7.10 am, of about four minutes at 10:23 am, of about two minutes at 10:56 am, of about a minute at 11:43 am, of 40 seconds at 11:57 am and of 15 and a half minutes at 6:19 pm.  A similar pattern continued on 12 March 2009.  There were telephone calls as between Mr Powell and Mr Slaven of over two minutes at 5:41 am, of just under a minute at 5:49 am, of five and a half minutes at 6:39 am, of a minute and 19 seconds at 7:54 am, of 40 seconds at 7:59 am, of 47 seconds at 8:59 am, and of about three minutes at 1:47 pm.  On 13 March 2009, there were calls between them of one and a half minutes at 6:15 am, of 40 seconds at 7:38 am, of about one and a half minutes at 9:17 am, of just over a minute at 9.28 am, of 46 seconds at 11:45 am, of about one and a half minutes at 5:12 pm, and of about two and a half minutes at 5:20 pm. 

59                  Dealing next with Mr Paterson, he was at relevant times a member of the AMWU.  Like Mr Slaven, he had been a spokesperson for the Civil Pacific employees.  He too was conspicuous amongst the protesters at the project head office in the period following 3 March 2009.  On 10 March 2009, he spoke to Mr Powell by telephone at 4:59 pm, the call lasting for about one and a half minutes.  On 11 March 2009, he spoke to Mr Powell for about five minutes at about 6:00 pm, and to Mr Slaven briefly (48 seconds) at 5:28 am and (44 seconds) just before 9:45 am.  On 12 March 2009, after what appears to have been unsuccessful attempts to make contact, Mr Paterson spoke to Mr Powell by mobile telephone at 2:38 pm, the call lasting about three minutes.  There was a brief call (48 seconds) between these two men at 9:58 am on 13 March 2009, and a call of one minute and 21 seconds’ duration between Messrs Paterson and Slaven at about 11:03 am on the same day.  Finally, Mr Paterson spoke to Mr Powell for just over two minutes at 5:44 pm, and to Mr Slaven for about the same time at 5:47 pm on 13 March 2009. 

60                  Returning to the narrative, by about 5:15 am on 11 March 2009, Mr Kerin’s vehicle was blocking the Hyde Street entrance to the site facility.  When asked to move it, Mr Kerin’s response was, “No, this site is shut due to workers being sacked”.  At the Hall Street entrance, there were a number of protesters’ vehicles parked across the gate.  Some of the protesters present were former Civil Pacific employees.  Messrs Paterson, Slaven and Padula were present.  Mr Slaven said to Jim Wiadrowski, Safety Manager for John Holland, “All we’re after are our jobs back, at the proper rates.”  Some distance away from the gate, there were two vehicles parked on the road.  Mr Wiadrowski assumed that the occupants were workers who were to commence work on-site that day.  Some of the picketers took photographs of the occupants of those vehicles, and said to them, “We want our jobs here.  We don’t have anything against you.  This is a picket line and we don’t want you to cross it.”  At about 5:50 am, these vehicles departed. 

61                  Some of the first WorkPac employees to arrive at the Hall Street entrance noticed the presence of the picket line, and their supervisor, upon being informed of that circumstance, arranged for them to meet near some shops some distance away.  Instructed to do so by Mr Twentyman, the supervisor then directed the WorkPac employees to proceed to a McDonalds restaurant in Somerville Road, Yarraville.  They did so, arriving there at some time after 6:00 am.  One of the workers reported to the supervisor that, by his observation, the group had been followed.  Some of the protesters had indeed followed the WorkPac workers to McDonalds, the former including Mr Padula in his silver VW registered “NEEROD”.  I am prepared to infer that Mr Padula’s presence was not coincidental.  At about this time, he seems to have been in regular telephone or SMS contact with Mr Slaven.  He sent an SMS message to Mr Slaven at 6:06 am, he spoke to Mr Slaven by telephone at 6:22 am, 6:24 am and again at 6:26 am (for 37, 37 and 39 seconds respectively).  There were also three other cars, apparently occupied by protesters, which arrived at McDonalds.  Eleven men in total emerged from these cars.  They were wearing jumpers or jackets carrying the Eureka flag emblem.  Five of them walked into the restaurant, and as they walked past one of the WorkPac employees (who was standing outside), one of them said “Here’s the fucking scabs”. 

62                  The WorkPac employees filled out some paperwork for John Holland while they were at the restaurant, and then prepared to leave, intending to go to the corporate head office in Abbotsford.  While walking back to his car, one of the employees was addressed by one of the protesters, asking, “Tell me mate, what are you getting paid on this job?”  The worker said, “I’m not getting paid at the moment, I haven’t started work yet.  Look mate, I’m not against you and what you’re doing.  I need to work and I can’t pass up this opportunity.”  The protester said, “Okay, I understand that, but you’re getting ripped off because it should be under a metal agreement and you should be getting $10 more per hour.”  The worker replied, “Look, I don’t want to talk about it.”  The protester replied, “Okay, have a nice day and I’ll see you wherever you’re going.  I’ll see you when you get there.” 

63                  The WorkPac employees then proceeded to the John Holland corporate head office in Abbotsford, where they had all arrived by about 7:00 am.  A short time later, Mr Padula drove his “NEEROD” vehicle back and forth along Trennery Crescent, past those standing outside the office.  One of those was Mr Hamersley, to whom Mr Padula called out (from his vehicle) that he was a “fucking cunt”.  Mr Padula’s front-seat passenger stuck his head out the window and yelled to the group of WorkPac workers standing there: “You fucking scabs are taking our jobs!”.  The same passenger called out to the WorkPac supervisor: “You won’t get any work in Melbourne again”. 

64                  Despite the absence of ostensible indications, I would infer that Mr Stephenson was at least aware of Mr Padula’s general project at this point.  There was a telephone call from Mr Stephenson to Mr Padula at 7:00 am, which lasted 38 seconds.  Mr Stephenson rang Mr Padula again at 7:23 am, when the call lasted nearly two minutes.  At 8:26 am, Mr Padula rang Mr Stephenson, the call lasting about a minute.  Mr Padula was in “Collingwood” at the time (where he had been, according to the telephone records, at least since 7:21 am, when a very short call is recorded from him to Mr Stephenson), which I take to include, relevantly, the region where the corporate head office was located.  Mr Padula made a number of calls that morning from Collingwood, nearly always to Mr Slaven.  The last recorded call by Mr Padula from that area, however, was to Mr Powell at 11:48 am, the call lasting 48 seconds.

65                  Meantime, at the site facility, it was Mr Kerin who was taking a leading role representing the protesters in their negotiations with the police (who had arrived, after having been contacted by John Holland).  At the Hall Street entrance shortly after 6:00 am, he said to Sergeant Belle, of the police, “This is a peaceful community protest.  There will be no violence but we don’t want materials going on to the site.”  Mr Cassells told Sergeant Belle that no deliveries to the site facility were anticipated that day.  Despite having been asked by Mr Cassells, Sergeant Belle said that he could not open both gates to the facility (ie Hall Street and Hyde Street) and keep them open all day.  Mr Cassells asked Sergeant Belle to arrange for the Hall Street gate to be opened, at which point the picketers present began to chant, “What do we want? Jobs back! When do we want it? Now!”.  The police prevailed upon the picketers to remove their cars from blocking the gate, but it transpired that a padlock securing a chain on the gate had been disabled by having had a key broken off inside it.  Mr Kerin addressed the protesters as a group, saying, “This union’s got a good record on non-violence – we’ll stick by that – the police have got their own union and we respect them”.  Mr Lee, who heard these words, considered that Mr Kerin’s tone was calming, and that he was urging the protesters not to be violent.  However, the gate remained closed, and it was not until later in the day that it was opened.  It was as a result of being unable to open the gate that John Holland directed the WorkPac employees to meet that morning at Abbotsford, rather than, as arranged, to undertake their induction at the site facility. 

66                  At about 10:45 am on 11 March 209, Baz Kaypakkaya, an IT/Systems Manager in the employ of John Holland Group Pty Ltd, arrived at the Hyde Street entrance to the site facility with John Mooney, the representative of a contractor engaged for the installation of cables for internet, telephone and like services there.  About six or seven picketers were standing in front of the gate with their arms crossed.  Mr Kerin, who was one of them, approached Mr Kaypakkaya’s car and said to him, “What are you blokes doing here?”.  Messrs Kaypakkaya and Mooney got out of their car, and the former said to Mr Kerin, “We are here to check out the site huts, to see if we can cable them up and get some services in there”.  Mr Kerin said, “You can’t have access to this site”.  Mr Kaypakkaya asked under whose authority Mr Kerin denied him access to the site, and the latter responded, “Union authority”.

67                  On 11 March 2009 on the application of John Holland, I made interim orders in the Holland proceeding restraining the respondents in that proceeding from preventing or hindering the access of any person or vehicle to, or the access of any person or vehicle from, the project head office; (with certain exceptions) from standing, sitting, lying or otherwise being present at or on the approach to any door, gate or entrance of or to the project head office; from threatening or abusing any person entering, approaching, leaving or departing from the project head office; and from engaging in certain other conduct.  I restrained Mr Mavromatis (with certain exceptions) from attending or being within 100 m of the project head office. 

68                  On 12 March 2009, there was a substantial presence by picketers at both entrances to the site facility.  Witnesses estimated about 40 people at each entrance.  At the Hyde Street entrance, Messrs Lynch, Slaven and Cheney appeared to be in control.  At some stage during the morning, Mr Slaven said to Mr Foster that there were others “above him calling the shots”.  About 100 m from the Hyde Street entrance, there was an orange caravan stationed, on which were displayed a CFMEU flag and an AMWU flag.  A tent was erected next to the caravan.  During the day, Mr Mavromatis was seen in the vicinity of the caravan. 

69                  At about 6:35 am on 12 March 2009, Mr Cassells and Steven Webb (industrial relations consultant to John Holland) approached the Hall Street entrance in their car, and stopped about 20 metres short.  There was a large group of people standing at the Hall Street entrance.  A man who identified himself as “Ray” told Mr Cassells, “No-one is going through the gate.  Some blokes have been sacked and they are concerned for their future.”  Messrs Cassells and Webb then proceeded to the Hyde Street entrance to the site facility, where the gate was open but the path was blocked by a vehicle.  Near the gate were signs on display which read “AMWU metal workers – Proud to be union” and “CFMEU – Touch one, Touch all”.  Another sign read “Award rates is all it takes – AMWU – CFMEU”. 

70                  At about 7:45 am on 12 March 2009, Mr Webb, now in the company of Mr Foster, drove up to the Hall Street entrance to the site facility.  There were about 30 people standing in the roadway in front of the gate.  Although it was difficult to see what was happening, Mr Webb saw the type of sparks or flashes which he associated with welding activity.  Shortly thereafter, Mr Lee entered the site facility through the Hyde Street gate (the police present having procured the driver of the vehicle blocking the way to move it away from the gate) and drove through to the Hall Street entrance.  The gate there had been welded closed with two pieces of square tube, and some heavy steel mesh, so that it could not be opened. 

71                  Also on 12 March 2009, the WorkPac employees, and some direct employees of John Holland, were undergoing training at the corporate head office in Abbotsford.  At about 12:30 pm, Mr Marshall, who was meeting with the new workers, heard yelling and the beeping of a car horn in the street outside.  Looking out the window, he saw Mr Powell leading a group of about 12 men towards the entrance to the office.  He went into the courtyard, where he had a good view of the main entrance.  He saw that a picket had formed directly outside the entrance, which consisted of about 50 men.  One of those present held a megaphone to his mouth and yelled things like, “Come down here you scabs, come down and talk to us you scab bastards, come and join the union”  and, “We know you’re in there, scabs.”  One of the WorkPac employees who was at the meeting heard the man on the megaphone say, “Come out scabs, we know you’re in there.  If you cross the picket, you’ll always be a scab.  When you get married, you’ll be married in a church as a scab.  When you have kids, we’ll know who they are and they will be scabs and they will be the children of a scab worker.  You’re taking jobs that don’t belong to you.  They’re our jobs and we have a right to be on the bridge.”  He then heard the man with the megaphone yell, “What do want?” at which the others would chant, “Our jobs back!”  The man with the megaphone would then call, “When do we want it?”, and the others would respond, “Now!”  The man with the megaphone then said: “Ladies and gentlemen, this is a peaceful protest, we don’t mean any harm, we just want our jobs back! Well, that’s it, we’ve come to pass our message on to you and John Holland.”  By about 2:00 pm, those on the picket outside the Abbotsford office were leaving.  However, Mr Mavromatis remained, waving a union flag.  He saw Mr Marshall in the courtyard and yelled out, “You’ve cost the job a lot of money Gary, why don’t you come out and have a go, you think you can beat us you dickhead.  You think we give a fuck about the courts?”.

72                  McElligot Partners Pty Ltd (“McElligot’s”) was in the business of abrasive blasting of paint, red lead removal, high pressure washing and industrial coatings in the protective coatings industry.  It employed more than 250 people nationally, and about 50 in Victoria.  All field employees worked under the terms and conditions of a collective agreement to which the CFMEU was a party.  In December 2008, McElligot’s was contracted to John Holland to carry out enabling works and red lead removal from the West Gate bridge openings on the north and south sides of the bridge and the inner webs.  They commenced that work in February 2009.  They had five workers on the bridge project. 

73                  At about midday on 12 March 2009, one of the directors of McElligot’s, John McElligot, received a telephone call from Mr Stephenson.  He asked Mr McElligot whether his employees were working on the West Gate bridge for John Holland.  Mr Stephenson said, “Do you know that there is a picket on the job due to a dispute?”  Mr McElligot replied, “I had heard of the picket, but what’s that got to do with me, I have an agreement with your union and I have no dispute with John Holland.”  Mr Stephenson said, “It is a real slap in the face to the guys on the picket with your guys still working on the bridge.  Can you get your guys to disappear for a few days, suddenly call in sick, whatever, until we solve the dispute.”  Mr McElligot replied, “I don’t know about that, I would have to talk to the other directors in the company.”  Mr Stephenson asked Mr McElligot to call him back in half and hour. 

74                  Mr McElligot then rang a CFMEU organiser with whom he had had previous dealings, John Ayers.  He asked Mr Ayers what was going on, and told him about the phone call from Mr Stephenson.  He said that he did not want to stop his staff working, and did not want to see them without money.  He said to Mr Ayers, “I’m not going to tell them to stop working.  You can speak to them, it’s up to them.”  Mr Ayers said that it was the first he had heard of it, and that he did not know what was going on.  He said that he would get back to Mr McElligot.  He did so at about 4:30 pm on the same day (12 March).  He said that he had been in contact with Mr Stephenson, who said that the McElligot’s crew were the only ones working on the job, and that “It wouldn’t be right if your guys kept working.”  He said that Mr Stephenson wanted to have a meeting with the McElligot crew.  It was subsequently arranged that that meeting would occur on 16 March 2009. 

75                  On 13 March 2009, there were five employees of McElligot’s working on the bridge.  Additionally, there were eleven other workers from two subcontractors engaged by McElligot’s for specific functions: five from a subcontractor called ET Higham Pty Ltd, who were carrying out containment work to encase the scaffolding to prevent dust from the red lead escaping, and six from a firm called Bell Scaffolding (Vic) Pty Ltd, who were engaged to provide the scaffolding as such.  It was their practice to take the morning break at the Vicroads compound situated in Cook Street on the east side of the West Gate bridge.  On 13 March, the on-site supervisor for McElligot’s, Damian McCourt, was informed that Mr Stephenson was in the vicinity, and wanted to speak to the workers on site. 

76                  When the crew from the bridge arrived at the Vicroads compound for their break, Mr Stephenson was there with Messrs Paterson and Lynch.  Mr McCourt did not then know Mr Stephenson, but he saw that Messrs Paterson and Lynch were pointing him out.  Mr Stephenson introduced himself to Mr McCourt, and asked if he could “have a meeting with your men about what’s been going on on the job.”  After the men had had their break, such a meeting took place under a tree outside the shed.  Mr Stephenson addressed the meeting in the following terms (as recalled by Mr McCourt):

I’m Gareth from the CFMEU.  I’m here to talk about what’s happened on the job.  John Holland signed an EBA with the AWU.  The CFMEU and the AMWU went to have a meeting about also wanting to get in on the EBA.  John Holland has turned their back on us and have signed up with the AWU.  All the boys that worked for John Holland had a meeting with the CFMEU and AMWU over at Hyde Street about the EBA and what the AWU were selling them out for.  This is what John Holland wants to enforce with its labour.  The conditions you will be working under with the AWU, the week will start on a Wednesday and finish on a Sunday with no penalty rates.  Our agreement now is working hours from six to six but John Holland and the AWU want you to start work from four in the morning and they don’t want to pay into Incolink.  We have a severance pay with Incolink but you won’t get that with the AWU if you get sacked within 6 months.  John Holland was the builders when the bridge first fell down.  Now that they’re back, re-strengthening the bridge, they’re trying to screw the men with a new EBA.  There is a picket over at Williamstown Road and outside Hyde Street. 

Referring to Messrs Paterson and Lynch, Mr Stephenson said, “These guys were sacked and they’re trying to hire scab labour.”  He said that John Holland was trying to bring in a labour hire company based in Queensland, and to make the workers commence work at 4:00 am.  He said that, if the workers did not want to work on a Saturday, they would need to get a doctor’s certificate or to obtain the permission of John Holland. 

77                  At one point, Mr Paterson addressed the meting.  He said, “Our friends have been phoned by John Holland and asked if they wanted a job but they said that they won’t cross the picket line and they won’t be scab labour.”  He said that it would not take them long to get a bus load of angry men to picket the site.  Mr Lynch said, “They were doing inductions for the men over at Abbotsford at their head office on Thursday and we went over there to picket them.”  He added that a lot of the intending workers had been intimidated by the picket and had left.

78                  Mr Stephenson addressed the men again.  A number of those who had been at the meeting gave evidence (by way of affidavit or statement admitted by consent), the result of which was, regrettably, that the court has about the same number of different versions of what transpired.  None of these witnesses having been cross-examined, it is difficult, if not impossible, to resolve this uncertainty.  However, certain things appear to be tolerably clear.  First, Mr Stephenson had, and raised, a number of what he described as “OH&S reasons” why those present at the meeting should not work on the bridge.  Mr McCourt recalls him  saying: “The meter box is not up to date with the tagging, the RCDs are out of date with the tagging and there are not enough utilities.”  Secondly, Mr Stephenson called for a vote, in response to which he received some votes in favour of not working.  It is less clear whether anyone voted in favour of continuing to work.  It seems that several of those present at the meeting did not vote one way or the other.  Thirdly, Mr Stephenson interpreted the result of the meeting as favouring a cessation of work, and he effectively so declared. 

79                  After the meeting, one of the workers from ET Higham heard Mr Stephenson say to the group, “Go and grab your tools, secure the site.  We’re not working on this site, we’re on strike.  There’s a whole bunch of angry mother fuckers that will be picketing.”  The workers from Bell and from ET Higham collected their tools and immediately ceased work.  The workers from McElligot’s continued to work until the normal finishing time that day.  None of these workers returned to work on the bridge on subsequent days.  There was no suggestion in the evidence that Mr Stephenson ever raised his OH&S concerns with John Holland.

80                  The applicant alleged that the ban imposed by the CFMEU upon contractors such as McElligot’s working on the bridge remained in place until about 14 May 2009.  However, there was no evidence directly to that effect and, save for the circumstance that the dispute as a whole was settled about then, there is no evidence from which I could infer as much.  Indeed, in the particulars to this allegation in the applicant’s Statement of Claim, it was said only that:

Upon McElligot making inquiries of Ayers on 16 March and 19 March 2009, Ayers told him that he (Ayers) would tell McElligot if he found anything out, and that the pickets were still ongoing. 

These particulars do not make good the allegation that the ban remained in place until about 14 May 2009.  However, as I have said, it seems clear, and I take it to be common ground, that the ban remained in place at least for some time after 13 March 2009.  There is, for example, an affidavit sworn on 7 April 2009 by a carpenter in the employ of ET Higham, in which the deponent states that he has not been back to work on the bridge project since 13 March 2009.

81                  On 13 March 2009, the pickets remained in place at the Hyde Street and Hall Street entrances to the site facility.  At the Hyde Street entrance, those present were sitting in chairs across the gate.  The CFMEU caravan remained stationed about 100 m away from the gate.  Mr Padula’s car was parked near the gate.  At the Hall Street entrance, the gate remained welded shut. 

The events of 16-21 March 2009 at the corporate head office, the project head office, the site facility and the WorkPac office in Glen Waverley

82                  The situation at the site facility remained much the same on 16 March 2009.

83                  On 17 March 2009, Mr Marshall arrived at the corporate head office in Abbotsford.  He noticed a picket of about 12 men established outside the entrance to the office.  He had arranged for nine construction workers – either directly employed by John Holland or employed by WorkPac – to attend at the corporate head office for further training.  One of the WorkPac employees arrived there at 6:20 am, and noticed about ten people dressed in construction work gear holding a protest outside the main entrance.  To avoid these protesters, the worker parked his car about two kilometres away, walked down a bicycle path to the rear of the office and secured unobserved entry by scaling a fence more than two metres high.  Another worker secured access by similar means.  Others were not so resourceful: they told Mr Marshall that they had been physically chased away by the picketers in attendance, and had been verbally abused.  They said that the picketers had parked all around the streets in the vicinity of the head office.  They telephoned Mr Marshall to advise him that, as a result, they had not been able to attend the office for training.  Mr Marshall issued instructions that new construction workers should not attempt to enter the head office that morning while the picket was in place. 

84                  Telephone records disclose that Mr Powell travelled from the area of the bridge to the area of the corporate head office between about 6:15 am and about 6:38 am on 17 March 2009.  Over that time period, he made calls from Yarraville, Melbourne, Richmond and Collingwood to Messrs Edwards, Paterson, Slaven, and Paterson (again) respectively.  By about 7:00 am, the picket outside the corporate head office had grown to about 25 in size.  Messrs Mavromatis, Powell, Stephenson, Paterson, Slaven, and Padula were present, amongst others.  Mr Mavromatis was yelling through a megaphone such things as: “Marshall, Gary Marshall, come down and talk to us”; “Stop hiding Marshall”; and “You’re costing the bridge money and delaying the project”.  Mr Mavromatis also led the repetitive chant, “What do we want? Our jobs. When do we want them? Now.”  Mr Mavromatis yelled out “Fists in the air”, and the picketers in the group raised their fists when they were chanting.  For much of the time, Mr Lee was standing nearby, and was subjected to derisive and abusive commentary.  One of the protesters was yelling through a megaphone words to the effect, “Marshall, come outside, grow a set of balls and come and face us.  This whole project is stopped because of Gary Marshall.  Gary, if you want the job to go on, give us our jobs back now.” 

85                  To strangers who were walking in the street, Mr Mavromatis said, “this is a peaceful protest.  John Holland sacked these workers.  It is a peaceful protest.  No need to feel threatened.”  John Holland’s office staff were obliged to pass through the courtyard in order to enter the building, and Mr Marshall noticed that those on the picket were yelling at them as they did so.  This included the use of a megaphone directed to these staff members.  Mr Marshall observed that a number of female members of staff were “quite shaken by these events.” 

86                  Mr Marshall was told by one of the construction workers that, after he had left the office in Abbotsford, he was followed in his car by some of the picketers.  They pulled him over.  They asked him to join the picket, and he refused.  They advised him that he should not cross the picket.  He told them that he just wanted to work, and that if he had to cross the picket he would do it, but that it was nothing against the picketers.  One of the picketers responded by saying, “If you do any work on that bridge your life will be hell, this is a union town and we’ll never leave you alone”. 

87                  At about 8:45 am on 17 March 2009, almost all of the protesters were in the course of leaving the vicinity of the corporate head office.  Telephone records indicate that Mr Powell was still in the Abbotsford area at 8:56 am, but that he was in the Carlton area by 9:11 am. 

88                  After they had left the corporate head office on the morning of 17 March, Messrs Slaven, Paterson and Lynch went to the Hyde Street entrance to the site facility.  Mr Cassells saw them there at about 10:00 am.  Mr Kerin’s car was parked in such a way as to block the entrance.  The picketers refused Mr Cassells’ request to move the car, and he was obliged to walk into the site facility.  The CFMEU caravan was still in place about 100 m away, and at about 10:40 am all of the picketers walked to that caravan, and there gathered in a large group.  At about 11:30 am, they returned to the entrance to the site facility, and departed in their cars (save for Mr Kerin’s car which remained parked across the entrance). 

89                  The picketers’ destination, and the place where they next arrived (by about noon, according to the evidence), was the project head office.  Messrs Powell, Paterson and Padula were amongst them.  When Mr Lee arrived (at about 12:45 pm), he was greeted with claps and cheers from the protesters.  Mr Paterson said, “you’re a super hero.  You’re everywhere. Do you wear a little ‘S’ on the undies you wear on the outside?”, grabbing at his crutch with two hands at the same time.  Mr Powell addressed the picketers as a group at the front of the office.  When Mr Hamersley arrived for a meeting, Mr Padula said to him, “It’s fucking baldy again”.  Mr Paterson said, “Good to see you Bradd.  When are we getting our jobs back? When are you going to fix this up?” 

90                  Mr Marshall had arranged for a series of interviews at the corporate head office to commence at 2:00 pm on 17 March 2009.  At about 1:30 pm, a picket re-established itself outside the entrance, led by Mr Mavromatis, who again was holding a megaphone.  According to Mr Marshall, similar statements were voiced by Mr Mavromatis to those he had made earlier in the day.  Telephone records disclose that Messrs Mavromatis and Powell (who was in the vicinity of Garden City, which I infer placed him at the project head office or thereabouts) conversed three times between 1:36 pm and 2:18 pm. 

91                  Also on the morning of 17 March 2009, four unidentified men walked into the reception area of the WorkPac office in Glen Waverley.  They asked if WorkPac was doing interviews for the West Gate bridge.  The receptionist replied in the affirmative.  They then handed her a piece of paper and left the office.  The paper was a flyer bearing the logos of the AMWU and the CFMEU.  It was headed “Hollands can’t bridge the gap”.  The text was as follows:

In their continuing quest to undermine wages and conditions in the construction industry, John Holland Pty Ltd may have met their match in the CFMEU and AMWU (Metals) members who have said – Enough is Enough!

In their most insulting effort so far, Hollands have served up a document on the West Gate Bridge that amongst other things – reduces shift penalties, expands the span of normal hours to allow 4am starts, FORCES people to work Saturdays, keeps workers working unsafely up to 38 degrees, introduces a new starter classification of 80% of the normal rate and six months probation, has no Award references to protect basic conditions and offers a lower rate of pay than any other mixed metals job in the State.

The other critical issue is that construction workers should not be denied the right to be represented by their unions – NOT the organisation chosen by the boss!  From the very start of this job, the workers on site have made it clear that they wish to be represented by the CFMEU and AMWU, and have called on Hollands to have discussions with out two unions and the AWU has now also called on Hollands to recognise that this project is a mixed metals job and to enter joint discussions with all unions.

Following their refusal to honour the industry standards via the Agreement struck between our unions and the original labour hire company (Civil Pacific), Hollands are attempting to use a bodgy labour hire company from Queensland (Workpac), to scab on the original workforce who have been sacked for standing up against Hollands bully-boy tactics.  The sacked workers refuse to accept wages and conditions that are significantly lower than the industry standards.

In spite of threats being made already against the workers involved – “We’ll tell John Howard’s ABCC, We’ll take legal action”; the CFMEU and AMWU members have taken a stance on behalf of all construction workers to ensure that the crap being served up on the West Gate does not become the benchmark for future projects.

The flyer ended with the words “These workers need your support”. 

92                  The four men who had entered the WorkPac reception area then remained seated in a vehicle parked outside in the WorkPac car park.  The vehicle was a Nissan Pulsar registered in the name of Clive Moonsamy, a former employee of Civil Pacific.  Over a period of about an hour during the morning, the occupants of this vehicle repeatedly walked up to the glass front of the WorkPac office, attempting to peer inside.  Telephone records show that Mr Cheney called Mr Powell from Mount Waverley at 10:14 am, the call lasting just over a minute.  Another conversation between these men occurred at 10:49 am, and lasted just under one minute.  Mr Twentyman left the office on foot for a time, and as he returned the person who had been sitting in the driver’s seat of this vehicle was out of it, leaning over a railing.  Mr Twentyman asked him whether he was alright.  The person said, “I’m looking for a bin because I have some scabs I’m wanting to get rid of.”  Pointing to the WorkPac office, he added, “And they’re in there.”  Mr Twentyman said, “You’re wrong, and you want to get rid of those sitting in that car up there.”  After he returned to his office, Mr Twentyman could see the occupants of the car place copies of the union flyers under the windscreen wipers of all of the cars in the WorkPac car park.  Mr Cheney again telephoned Mr Powell from Mount Waverley at 11:58 am, the call lasting about a minute.  About ten minutes later, he (Cheney) made a brief call to Mr Moonsamy.  Finally, Mr Cheney sent an SMS message to Mr Powell at 12:47 pm.  The men in the Nissan Pulsar left the vicinity of the WorkPac office at about 1:30 pm. 

93                  At about 3:30 pm that afternoon, there was another vehicle in the WorkPac car park, apparently being driven by one of the four men who had been in the first vehicle that day.  As one of the WorkPac employees was leaving the office, the driver of this vehicle yelled at him, “Scabs!”, and drove off. 

94                  On 17 March 2009, I extended (and varied) the orders which I had made in the Holland proceeding on 11 March 2009, pending the hearing and determination of that proceeding.  One of the variations was that Mr Mavromatis was now restrained in the same terms as the other respondents in that proceeding.  Another variation was to restrain the respondents from engaging in identified conduct at or in the vicinity of the project head office, such as conduct of the kind referred to in paras 42-44 above. 

95                  By about 5:40 am on 18 March 2009, there were about 20 protesters at the Hyde street entrance to the site facility.  Amongst them was Mr Kerin, and his car was again parked across the entrance, so as to block it.  The orange caravan was still in place, and a large, yellow tent was alongside it.  By about 7:00 am, there were about 50 protesters at this entrance to the site facility.  About half of them left shortly after 7:00 am.  By about 9:30 am, a different car (in place of Mr Kerin’s) was blocking the Hyde Street entrance to the site facility.  At about 2:00 pm, about 12 of the protesters moved from the Hyde Street gate to the orange caravan.  At about 2:50 pm, Mr Mavromatis was observed in the vicinity of the yellow tent (he by then presumably having returned from the corporate head office – see the following paragraph).  Twice during the course of this day, when Mr Lee sought to enter the site facility by way of the Hyde Street entrance, one of the protesters moved the car blocking the entrance to allow that to happen. 

96                  At about 8:30 am on 18 March 2009, Mr Marshall arrived at work at the corporate head office in Abbotsford.  A group of about four men, including Mr Mavromatis, was present in the street outside.  Throughout that day, these men yelled out similar statements to those made the previous day.  Mr Marshall also received a number of calls to his mobile telephone which were identified as private numbers and which he did not answer.  There was a voicemail message at 9:15 am in the following terms: “G’day Gary, why don’t you come down and talk to us?  There’s only four of us”, and “C’mon Gary, you can do it.”  In the background to the message, it was possible to hear other men calling “Marshall”.  At about 2:39 pm that day, Mr Marshall received a voicemail message which said, “You’re a rat”. 

97                  Also on 18 March 2009, another vehicle was in the car park at the WorkPac office, and the occupants were handing out union flyers. 

98                  Some time between 7:30 am and 8:00 am on 19 March 2009, a truck delivering a photocopier arrived at the project head office.  Some protesters were in the vicinity, Mr Kerin being one of them.  He asked the driver of the truck, and the John Holland employee who had come out to meet the driver, “What’s going on here?” He was informed that the driver was delivering a photocopier.  Mr Kerin said, “Okay”, but, having spoken to one of the other protesters, returned to the truck driver and said, “No”.  The John Holland employee told the driver not to worry about it, and the truck left. 

99                  At about 8:30 am on 19 March 2009 at the project head office, according to Mr Lee, “approximately 60 protesters arrived, from out of nowhere, and came around the corner into Smith Street from Williamstown Road.”  Nearly all of the “regular guys” whom Mr Lee had seen previously were there, and in addition there were a number of others whom he had not seen before, including three who he noticed were “very large and heavily built”.  Within the group were Messrs Stephenson, Kerin, Patterson, Slaven, Lynch and Faulds.  At about 8:45 am, a small silver sedan turned into Smith Street from Williamstown Road.  Some of the protesters who were standing on that corner yelled out to the others; “They’re scabs, they’re scabs”,  while pointing at the silver sedan.  The other protesters, who were standing in the middle of Smith Street, caused the silver sedan to stop.  The 60 protesters then surrounded the car, forcefully pushing it up and down on the bonnet and the boot, so as to make the car bounce.  The protesters punched the roof and windows of the car very hard, and kicked the side panels of the car.  The protesters were about four or five deep on each side of the car.  They were yelling out, “You fucking scabs”, and “You fucking thieves”.  At some point, the driver of the car had the opportunity to drive away, and he did so.  The protesters yelled out such things as, “You’ll never get on the site you fucking thieves”. 

100               At about 10:00 am, the police came by, at which time the protesters were generally quiet.  They did, however, chant from time to time, “What do we want?  Our jobs!  When do want them?  Now!”. 

101               Shortly after 10:00 am on 19 March 2009, a white utility, registered in the name of the CFMEU, was parked in the vicinity of the project head office.  At about 10:30 am, Mr Stephenson was present at the protest group, and said to the protesters, “I appreciate you all staying and I hope you can all stay around until two”.  During the course of the morning, Mr Stephenson spoke much to Mr Kerin.  At about 11:30 am, Mr Powell handed out papers to the protesters. 

102               As Mr Hamersley left the project head office at about 11:00 am, he noticed a number of the protesters sitting on the front steps.  As he came to his vehicle, he could hear Mr Mavromatis calling out his surname.  Mr Marshall arrived at the project office at about 11:00 am.  As he walked towards the building, Mr Paterson said (within about half a metre of Mr Marshall’s ear): “Who the fuck do you think you are Marshall? You fucking think you can get scab labour on this project you fucking idiot.  I can tell you there’ll be nobody fucking working on this bridge.”  Mr Paterson then began chanting, “No scabs, no scabs”, and the others with him joined in. 

103               On 20 March 2009, as a number of WorkPac employees were proceeding towards the bridge project (from the corporate head office where they had come together), one of them received a call on his mobile phone.  The call came from Mr Lynch’s mobile phone.  The caller, who was male, said, “Go down that fucking hole and we’ll be coming after you.”

104               On the morning of 21 March 2009, there were about 10-15 protesters at the Hyde Street entrance to the site facility.  A truck delivering platforms, steel beams and other materials to the site approached the site along Hyde Street.  The protesters yelled out to the driver, “Keep driving mate” and “You’re not stopping here”.  The driver noticed that there were some cars parked across the entrance gate to the site, blocking access.  The driver proceeded on past the site, made a U-turn, and returned.  He was, however, greeted by the same reaction from the protesters.  He did not make his delivery to the site. 

105               On 24 March 2009, Mr Stephenson was joined as a respondent.  I made a series of injunctive orders relating to the project site itself and to the corporate head office in Abbotsford (and, in the case of Mr Stephenson, relating to the project head office).  I made similar orders in the Holland proceeding, by which Messrs Slaven, Paterson, Padula, Lynch and Kerin were also restrained on an interim basis.  Those five men, and Mr Stephenson, were added as respondents in that proceeding. 

The events of 26-31 March 2009 at the bridge, at the project head office and at the site facility

106               On the city side to the approach to the bridge, there are small sections of land, slightly to the side, which are not part of the bridge as such but which are described as “aprons”.  At various times on 26 and 27 March 2009, numbers of the former Civil Pacific employees, including Messrs Paterson, Slaven and Faulds, stood on one of these aprons and waved flags, and held signs, towards passing motorists.  Messrs Stephenson and Powell were also involved in this activity. 

107               On 30 March 2009, John Holland had just completed the induction of ten WorkPac employees and one of its own employees, all 11 of whom were to be taken by bus to the premises of a supplier of protective equipment of the kind that they would be required to wear while working on the bridge.  These workers gathered at the project head office on that day.  There was a small number (about six or seven) of protesters present outside the project head office by about 7:00 am.  As one of the WorkPac employees entered the building at about 8:10 am, he noticed that his entry was observed by two men in a vehicle parked nearby.  As the employee himself signed in at the reception desk at the project head office, these men also entered, and identified themselves to the security guard as being from Civil Pacific.  Save that they asked to see “Dave”, there is no other direct evidence as to their identity, intentions or subsequent conduct. 

108               However, at 8:18 am, Mr Paterson sent an SMS message to Mr Powell.  Mr Paterson was, according to telephone records, in “Port Melbourne West”.  Mr McHugh also spoke to Mr Powell by telephone at 8:24 am for more than a minute.  By about 8:30 am, there were 10-15 protesters outside the project head office, including Messrs Faulds and Cheney, and Andrew Veal, also a former Civil Pacific employee.  Mr Powell spoke to Mr Veal by telephone for about one and a half minutes at 8:39 am and for 78 seconds at 9:13 am.  Mr Powell was himself in Port Melbourne and Garden City at the time of making these calls (which he did) respectively. 

109               For the remainder of the morning of 30 March 2009, the group of protesters maintained a presence outside the project head office.  It may be inferred that they knew that there were workers inside intended for the bridge, and that they proposed to do what they could to prevent those workers leaving the project head office for that purpose.  They chanted (audibly to those inside the building): “What do we want? Our jobs back! When do we want it? Now!”  Some of them yelled: “Scabs! You’re taking our jobs, you bastards.”  A vehicle belonging to Julio Pizarro, a former employee of Civil Pacific, was parked across the roller-door exit on Smith Street.  Concerned about the prospect of securing the egress from the building of the bus which was to take the workers to the equipment supplier’s premises, John Holland called the police, who arrived shortly after 12 noon, and opened lines of communication with those ostensibly in control of the protesters.  Mr Faulds informed the police that 40 more protesters were on their way.  Another of the protesters told the police that the bus carrying the workers would not be permitted to leave the premises.  Later, it seems the same person told the police that the protesters were not concerned about the workers being taken to collect their protective equipment.  Yet later again, the police reported to John Holland that the position had reverted to the original one: the protesters would not allow the workers to leave the project head office for that purpose.  The police sergeant involved observed that he had recognised some of those who were newly arrived at the protest as “agitators” from other picket lines. 

110               What occurred at the project head office on 30 March 2009 was presented as being done under the auspices of a “Western Suburbs Union and Community Coalition”: a sign in those terms was strung between two of the flag poles outside the project head office.  However, less visible indications warrant the clear inference that it was the project of the CFMEU.  I have already mentioned the SMS message from Mr Paterson to Mr Powell at 8:18 am and the telephone conversation between Messrs Powell and Veal at 8:39 am.  Additionally, Messrs Stephenson and Faulds had telephone contact, or attempted contact, 14 times between 11:29 am and 1:47 pm.  Taking only the calls which, by reason of their duration, may be assumed to have involved conversations of substance, they conversed (on the call of Mr Stephenson) at 11:29 am for about one and a half minutes, at 11:41 am for about half a minute and at 12:07 pm for just over a minute.  At 12:09 pm Mr Faulds rang Mr Stephenson, when they conversed for just over a minute.  At 12:19 pm Mr Stephenson called Mr Faulds, when they conversed for about a minute.  The same occurred again at 12:51 pm, this time the conversation lasting about one and a half minutes.  Finally in this bracket of calls, at 1:47 pm Mr Faulds rang Mr Stephenson, their conversation lasting about a minute.  These conversations spanned the period when Mr Faulds spoke to the police about the arrival of more protesters at the project head office. 

111               Correspondingly, Mr Powell was, over about the same period, in regular telephone contact with another of the former employees of Civil Pacific, Mick Bragagnolo.  At 12:18 pm, their call (made by Mr Powell) lasted about two minutes.  Another call (made by Mr Powell) at 12:41 pm lasted just less than a minute; as did a call from Mr Powell at 1:04 pm.  A return call from Mr Bragagnolo at 1:08 pm lasted about one and a half minutes.  The two spoke for about half a minute at 1:12 pm and for about one and a half minutes over two calls (both from Mr Powell) at 1:50 pm and 1:52 pm.  At 2:06 pm, there was a call from Mr Powell of more than two and a half minutes’ duration; and another at 2:19 pm of nearly two minutes’ duration.  At 2:24 pm they spoke (on Mr Bragagnolo’s call) for more than a minute, and at 2:32 pm they spoke (again on Mr Bragagnolo’s call) for more than three minutes. 

112               It seems that Messrs Stephenson and Powell were, at various times on 30 March 2009, themselves in the vicinity of the project head office.  They were by then, as indicated above, restrained from attending within 100 m of any entrance to the project head office.  Telephone calls by Mr Stephenson between 11:13 am and 11:41 am (of which there were four), at 1:41 pm, at 2:42 pm and between 3:35 pm and 4:03 pm (of which there were eight) were all made from Garden City, which I take to be the general area in which the project head office was located.  Mr Powell also made calls from Garden City at 9:13 am and 9:14 am, at 12:05 pm, and between 1:04 pm and 4:06 pm (15 calls).  Mr Powell was observed (in a CFMEU vehicle) in a nearby street at about 11:20 am.  He was observed sitting at shops in a street near the project head office at about 11:50 am, in the company of two men wearing clothing marked “Union solidarity” and a third man wearing clothing that marked him out to the observer (the applicant) as a former employee of Civil Pacific.  Mr Powell was also present later in the afternoon of 30 March 2009, as I shall mention below. 

113               Returning to the narrative, at some point the police sergeant conversed with a spokesman for the protesters, and was told that the objective of the protesters was to block the passage of people leaving the project head office.  Asked by the sergeant if he could give an assurance that no-one would be harmed, the spokesman went to the group of protesters, consulted with them, and then returned and gave the sergeant that assurance, adding that the protesters were content for the workers to come out of the building, and that they would yell and scream at them, but that there would be no violence.  This was relayed to John Holland management, who asked the sergeant whether he could give a guarantee that no-one would be harmed if the workers were taken out of the building.  After considering the position (including the fact that there were by now about 50 protesters present, that a small additional contingent of men had arrived who were, apparently, known to John Holland as “thugs” from other experiences (which men, I should add, were not seen to speak to the protesters), and that there were only five police members present), the sergeant said that he could not give that guarantee.  At this point, John Holland decided to abandon its plan to take the workers off-site to collect their protective equipment. 

114               John Holland having made that decision, it was necessary only for the workers to leave the project head office, return to their own vehicles, and go home.  From about 3:30 pm, the workers left the building, to return to their vehicles. As they did so, they were heckled, yelled at and abused by the protesters.  The protesters were yelling such remarks as, “Scabs”, “Don’t come back” and “We will be here tomorrow and the day after”.  As they walked towards their cars, many of the workers were escorted by police.  The last worker to leave the project head office on 30 March 2009 was a rigger employed by WorkPac.  As he approached his vehicle (a utility), he noticed 30-50 protesters around it, on the footpath and on the road.  The right front tyre of his vehicle was flat.  He was unable to unlock the door as someone had snapped twigs inside the lock barrel.  The tray of his utility was filled with rubbish that had not previously been there.  While he was trying to secure access to his vehicle, the protesters around him were screaming such things as, “You’re a fucking scab, scabby cunt, see what’s happening to you? See what fucking John Holland’s doing to you? See what situation you’re in now!”  This kind of heckling went on for about a minute.  The rigger recognised some of the protesters to be workers whom he had known at an unrelated site in Dandenong the previous year.  John Holland lent the rigger another vehicle, which he used to leave the vicinity.  His departure was, for a short distance, under police escort. 

115               At some point generally during the period when the workers were leaving the project head office, Mr Powell was seen to be speaking to a group of the protesters in Smith Street.  He appeared to be conducting a meeting of them, as they were all facing him.  He was, at the time, about 15-20 m away from the project head office. 

116               During the course of his earlier conversations with the protesters, the police sergeant had asked them to remove the car that was blocking the roller-door entry to the project head office, failing which he would make arrangements to have it towed away.  Some time later, the car was removed.  At about 2:12 pm the applicant, in the company of one of his colleagues, was driving his car along a road in the vicinity of the project head office when the car that had been blocking the entrance swing out suddenly from a parked position and blocked the road in front of the applicant’s car.  The applicant stopped his car.  The occupant of the other car, Mr Pizarro, emerged from that car and rushed, on foot, towards the applicant’s car.  The applicant locked the doors of his car.  Mr Pizarro reached the driver’s side window of the applicant’s car and yelled (to the applicant): “Fuck off, just fuck off, I’m telling you to fuck off, you’re fucked.”  Mr Pizarro leaned across the windscreen of the applicant’s car, pointed to the applicant’s colleague and yelled to her: “And you’re fucked too”.  Mr Pizarro took a door handle of the applicant’s car and pulled so hard on it that the applicant could feel the car moving from side to side.  He did the same with the handle on a rear door of the car.  The applicant drove his car forward and managed to escape from the attentions of Mr Pizarro. 

117               On the morning of 31 March 2009, there were about 15 picketers at the Hyde Street entrance to the site facility.  They included a number of former Civil Pacific employees. 

The events of 7-9 April 2009 at the project head office

118               Early on the morning of 7 April 2009, a group of intending workers for the bridge project arrived at the project head office for induction.  There were no protesters present at that time.  Shortly thereafter, protesters commenced to arrive, of whom there were about 25 by about 8:00 am.  Some of them were former Civil Pacific employees.  They congregated below the room where the inductions were taking place.  They yelled out things that appeared to be directed at the workers inside, such as: “Scabs.  How do you think your kids would feel if they knew what you were doing?  You’re un-Australian.  We’ll find out who you are.  Don’t think you can hide.”  The protesters were also intermittently chanting: “What do we want? Our jobs back. When do we want it? Now.”  They were also banging and kicking loudly on the roller-door at the Smith Street entrance to the project head office.  The noise generated by this was upsetting to the John Holland staff working in the project head office. 

119               At about 11:30 am on 7 April 2009, two project buses left the project head office by way of the Smith Street entrance.  The vehicles carried about 12 workers who had undergone induction, and additional security personnel.  As the roller doors were opened, the protesters formed a human wall across the driveway.  Seven members of the police were present, and they held the protesters out of the way while the vehicles slowly moved through.  Notwithstanding the presence of the police, the protesters spat on the buses, banged on the buses with their hands, applied union stickers to the buses and yelled out threats and abuse to the workers inside the buses. 

120               Telephone records indicate that Mr Powell was in the Garden City area when he made calls at 8:37 am, 8:45 am, 8:53 am, 9:12 am, 9:15 am, 11:03 am, 11:16 am and 11:25 am on 7 April 2009.  Several of those calls were made to Mr Bragagnolo, while the last was made to Mr Slaven.  Mr Stephenson was in the Garden City area when he made calls at 8:48 am, 10:47 am, 10:53 am, 10:59 am, 11:04 am, 11:15 am, 11:21 am, and 11:25 am.  A number of those calls were to Mr Faulds, while the last two were to Mr Paterson.  This pattern of calling ended at about the time that the police secured the departure of the buses carrying the workers from the project head office.  After receiving a call from Mr Faulds at 11:26 am, the next call from Mr Stephenson’s mobile phone appears to have been a call he made (to Mr Paterson, as it happens) from Carlton at 1:04 pm.  After his (brief) call to Mr Slaven at 11:25 am, Mr Powell made a call noted as being from Port Melbourne at 11:42 am, another from Docklands at 11:51 am and a third from “Melbourne” at the same time (these last two being to Mr Slaven, and lasting just under three minutes in total).  By 12:20 pm, Mr Powell was in the Ringwood area.  I infer from this evidence that Messrs Stephenson and Powell were in the vicinity of the project head office until about 11:30 am on 7 April 2009, and that the purpose of their presence there was directly related to the protesters’ attempts to prevent the departure of the John Holland buses. 

121               On the morning of 8 April 2009, a similar sequence of events occurred.  Workers for induction were brought to the project head office by mini bus early in the morning, and the protesters arrived at about 8:00 am.  There were about 55 of them.  While the inductions were taking place, the protesters moved between the Williamstown Road and the Smith Street entrances to the project head office.  As previously, they chanted: “What do we want? Our jobs back. When do we want it? Now.”  Mr Marshall observed that they were “considerably more vocal and agitated than the day before”.  The police arrived at about 10:30 am (this having been arranged by John Holland for the purpose of securing the exit of the buses carrying the workers for the bridge project), at about which time the protesters congregated outside the Smith Street entrance to the project head office, banging loudly on the roller-door.  One of the doors was knocked off its tracks and severely dented.  At one point, one of the protesters’ cars was parked across the entrance, and was removed only after police had indicated that, if it were not moved, they (the police) would secure entry to the vehicle by smashing one of the windows and move it themselves.  

122               At about 11:00 am, buses carrying the inducted workers attempted to depart from the Smith Street entrance.  The police formed a line across the entrance, and moved it forward as the buses started to depart, attempting to push the protesters back as they did.  The protesters were yelling abuse at those inside the bus and, so far as they could given the presence of the police, were banging the sides of the bus with their hands.  At one point a large “CFMEU” sticker was placed on the windscreen of one of the buses, interfering with the view of the driver.  One protester, Leigh Jones, punched the front windscreen of the first bus with his right fist in hammer motion.  This caused the windscreen to crack.  Another protester, Robert Mates, a CFMEU shop steward at a site unrelated to the West Gate bridge, and a former CFMEU organiser, struck the windscreen twice, causing it to shatter.  Those protesters were arrested.  Eventually, the buses were able to edge their way forward under police protection, and to depart from the project head office. 

123               Mr Mates’ presence at the project head office was no coincidence.  At 8:10 pm the previous day, Mr Powell had telephoned him.  The call was very brief (six seconds), and may have involved only a voicemail message.  Mr Mates rang Mr Powell at 9:38 am on 8 April 2009, I infer by way of a return call.  The call lasted 34 seconds.  The two spoke again by telephone at 10:57 am, 10:59 am and 11:21 am.  The first of these was from Mr Powell, then in Garden City.  The other two were from Mr Mates.  The inference that Mr Powell had arranged for Mr Mates’ presence at the project head office is an obvious one. 

124               Mr Powell himself, according to the telephone records, was in the Garden City area between at least 8:26 am and 11:21 am on 8 April 2009.  He made 15 calls over that period, no one of which was shown to have originated elsewhere.  The recipients of those calls, other than Mr Mates, were Messrs Stephenson, Veal, Faulds, McHugh and, for the last call, Edwards (the president of the CFMEU).  Mr Powell also received four calls (only the first of which was very short) from Mr Veal between 10:34 am and 10:52 am.  On any view Mr Powell was well-informed as to what was occurring at the project head office in the period leading up to 11:00 am this day.  As on the previous day, once the workers’ buses had departed from the project head office, the pattern of telephone calls completely changed.  Mr Powell made no further calls from the Garden City area after that at 11:21 am.  By 12:02 pm, he was in the Parkville area. 

125               Mr Powell’s telephone calls on the evening of 8 April 2009 were, one might conclude in retrospect, an ominous presage of things that were to occur the following day.  Having spoken to Mr Stephenson for about three minutes at 6:21 pm, to Mr McHugh for nearly five minutes at 6:45 pm, to Mr McHugh again for about nine and a half minutes at 7:41 pm, and to Mr Edwards (briefly – this may have been no more than a voicemail message) at 7:50 pm, Mr Powell telephoned Mr Slaven at 7:52 pm, the call lasting for a little more than three minutes.  Mr Slaven immediately called Mr Veal, the call lasting for about two and a half minutes.  Then between 8:01 pm and 8:15 pm, Mr Powell sent 14 SMS messages.  One was to Mr Mavromatis; one was to Mr Edwards; six were to other CFMEU organisers (including Mr Stephenson); two were to CFMEU shop stewards on other sites, namely, Mr Mates and Andrew Roussis, (the latter of whom will be introduced in more detail below); and the remaining four were to former Civil Pacific employees (Messrs Lynch, Paterson, Faulds and Bragagnolo).

126               At about 7:35 am on 9 April 2009, three project buses brought workers for induction to the project head office.  That occurrence passed without incident.  However, by about 7:45 am, there were 50-60 protesters outside the project head office.  Some of them were former Civil Pacific employees.  According to Mr Marshall, “The picketers were again going about their chanting and yelling of abuse as the previous two days.”  They banged loudly on the roller-door, the result of which was to damage it in a way that made it difficult to open.  Telephone records indicate that Messrs Powell and Faulds conversed (for a total period of about two minutes) at 9:52 am and 9:56 am.  By 9:58 am, Mr Powell was in the Garden City area.  The police arrived at the project head office at about 10:30 am. 

127               At about 11:30 am, three buses carrying the workers made ready to leave the project head office, by way of the roller-door entrance.  The door was opened and, at about 11:40 am, the buses started to depart.  The leading bus moved slowly forward with police standing between it and the protesters.  However, this time, there were insufficient police, compared to the large number of angry protesters, to enable the bus to leave.  Once the bus was clear of the doorway as such, it was completely surrounded by protesters yelling abuse to those inside, making threatening gestures, banging on the bus, and the like.  I have viewed video footage (taken both from inside and from outside the premises) of this incident, and it is obvious that the protesters were present in sufficient numbers, and with sufficiently aggressive intent, that the police were unable to give the bus a clear exit.  The bus is seen to rock from side to side at one point, an intimidating display of the force which the protesters were able to bring to bear.  Mr Marshall observed that the windscreen of the leading bus was forcibly struck so as to cause it to break, and then struck again such that it “caved into the bus”.  In his evidence, Mr Marshall said: “The behaviour of the picketers can only be described as a frenzy the kind of which I had never experienced before.  By that I mean, the picketers were like a wild angry mob.”  From what I was able to observe on the video, I would say that Mr Marshall’s observation is no overstatement.  At one point, one of the protesters used a pocket knife to cut off the valve of the near-side front tyre of the leading bus, causing the tyre to go flat.  This, and the behaviour of the protesters generally, caused Mr Marshall to give instructions for the buses to be reversed back into the premises. 

128               Notwithstanding the terms of the injunction by which he was bound, Mr Powell was present for most of the events to which I have referred.  He was identified by the applicant in the video footage of the incident.  As the protesters were pressing forward against the police to prevent the lead bus from departing, Mr Powell joined them.  After that bus had withdrawn into the building, Mr Powell and another CFMEU organiser represented the protesters in subsequent discussions with the police, in which it was agreed that the protesters would allow the buses to depart, subjecting their occupants only to verbal abuse.  At about midday, the protesters formed in a group around Mr Powell, and it is apparent from the video footage that he was addressing them.  He addressed a further meeting at about 12:35 pm.  The video images are consistent with the telephone records which indicate that Mr Powell made calls from the Garden City area at 11:09 am (to Mr Faulds), at 11:34 am (again to Mr Faulds) and at 12:17 pm (to Mr Stephenson).  Mr Stephenson himself was in the Port Melbourne area at 10:16 am and in the Garden city area at least between 12:07 pm and 12:23 pm.  In due course, the buses departed. 

The events of 14-16 April 2009 at the eastern compound and at the bridge

129               On 14 April 2009, John Holland had intended to bring a group of workers on to the eastern compound, for the purpose of retrieving four trucks that were parked there, and to take those trucks to their work area on the bridge itself.  Expecting some resistance, John Holland had notified the police, and there was a force of foot and mounted police present in Sardine Street.  By about 8:30 am, there 40-50 protesters at the gate to the eastern compound on Sardine Street.  The forward commander for the police operation, AI Sells, had been told that this was to be a “community protest”, but it did not seem to him that anyone from the general community was there.  From the apparel being worn by the protesters, it appeared to him to be a union demonstration.  He and A/Snr Sgt Pattison spoke to Messrs Powell and Stephenson, who represented the protesters.  At that time, AI Sells considered that he had sufficient resources to carry out the operation, and to secure the entry of the John Holland vehicles into the eastern compound.  However, by about 9:45 am the number of protesters had increased, and AI Sells was becoming concerned.  By about 10:20 am, there were 70-80 protesters in the vicinity, and, according to AI Sells, they “effectively had control of Sardine Street near the Gate”.  He said that they appeared to have a committed attitude, and that many of them positioned themselves across the gate in rows, with linked arms.  AI Sells was concerned about the safety of the protesters, particularly of two children who were in the front row.  As a result of AI Sells’ view of the matter (taken after consulting his colleagues) John Holland decided that no attempt would be made to get any workers on to the eastern compound that day.  The police operation was stood down, and the protesters dispersed.  Arrangements were made to install water barriers on the corner of Sardine and Lorimer Streets in anticipation of another protest the following day. 

130               On the morning of 15 April 2009, there was again a large number of protesters in the vicinity of the eastern compound.  However, water barriers had been erected so as to block off Sardine Street at its intersection with Lorimer Street.  The police were present in large numbers, and maintained a line across the entrance to Sardine Street at the point where the water barriers were in place.  There were some protesters who had arrived earlier than the police that day, and were, as a result, in Sardine Street, at the entrance to the eastern compound.  The police negotiated with Mr Powell and with Shaun Reardon, another organiser in the employ of the CFMEU, for this group of protesters to move out of Sardine Street, and position themselves on the Lorimer Street side of the water barriers, behind the line of police.  Some time later, a group of workers arrived, in buses organised by John Holland, at the eastern compound by way of a back entrance.  These buses did not arrive by Lorimer Street, nor use Sardine Street.  As a result of this stratagem, they secured access to the eastern compound without obstruction. 

131               It was then necessary for these workers to leave the eastern compound in the trucks that were parked there.  This they did under police protection.  As the convoy of John Holland trucks, including a mini bus, passed out of Sardine Street and into Lorimer Street, the protesters (behind the police line) were aggressive, were shouting, and were making actions and gestures towards the convoy.  They were heard to shout “scabs”.  From all of the evidence, it is apparent that the ability of John Holland to get the trucks, and the bus carrying the workers, out of the eastern compound this day was largely the result of the preponderance of police numbers, compared with the number of protesters.

132               On 16 April 2009, protesters, represented in their discussions with police by Messrs Stephenson and Reardon, gathered on the apron to the bridge, on the outbound side.  As John Holland vehicles passed by this point, under police escort, the protesters engaged in much yelling and screaming directed towards the trucks.  However, there was no interference with the passage of the trucks. 

133               On and subsequent to 16 April 2009, discussions took place between John Holland, the CFMEU, the AMWU and the AWU to consider a possible agreement to cover work on the bridge project.  However, no agreement had been reached as at 28 April 2009. 

The events of 29 April 2009 at the eastern compound

134               Andrew Roussis was the CFMEU shop steward for the construction job being undertaken by Contexx Pty Ltd at South Wharf (“the South Wharf site”).  In April 2009, this project was proceeding well, having had no stoppages on account of unforeseen circumstances.  It was running ahead of time.  Shortly after 9:00 am on 28 April 2009, Mr Roussis was telephoned by Derek Christopher, an organiser in the employ of the CFMEU.  Although interrupted by a call which Mr Christopher was obliged to take from another organiser, this call occupied a total of about six and a half minutes.  Mr Roussis also received an SMS message from Mr Powell at about 5:40 pm on 28 April, at which time Mr Powell sent many such messages to other recipients. Indeed, between 5:38 pm and 6:12 pm on 28 April 2009, Mr Powell sent 38 SMS messages.  The identity of many of the recipients was unknown to the applicant, but those whose identity was known included (in addition to Mr Roussis)  Mr Reardon, Mr Christopher, Mr Kerin, Matt Hudson (an organiser in the employ of the CFMEU), and Messrs Slaven, Lynch, Paterson, Bragagnolo, Padula, and Faulds.  There is evidence that the messages sent to Messrs Slaven and Lynch were in the following terms: “Community protest is on tomorrow at 6am sardine st port melb 24 scab going onto bridge need big numbers pass it on”.  Given what transpired the following morning, I think it is a fair inference that the other messages sent at about this time, including the message sent to Mr Roussis, were in the same, or in similar, terms.  Mr Christopher also sent an SMS message to Mr Roussis at 6:28 pm on 28 April 2009.

135               At about 6:50 am on 29 April 2009, Mr Roussis told the site manager at the South Wharf site, Darren Ingram, that “We are having a meeting over what’s going on at the West Gate bridge.”  Three meetings were then held on Level 2 of the building under construction, one for the plumbers, one for the electricians and one for the construction workers.  After these meetings, all but a few workers left the site.  Mr Roussis told Mr Ingram that the workers were leaving the site, and that he should expect them back at about 11:00 am.  However, only about 20 or 30 workers returned to work at that time.  In all, about 550 workers, employed both by Contexx itself and by a range of sub-contractors, left the site. 

136               At 8:29 am on 29 April 2009, Elias Spernovasilis, an organiser in the employ of the CFMEU, telephoned Maurice Campanaro, the CFMEU occupational health and safety representative on the site of the ANZ Bank construction project at 10 North Wharf Road, Docklands (“the ANZ site”).  They spoke for about two minutes.  At about 9:30 am, Rob McGregor, the general foreman for the contractor on the ANZ site, was informed that Mr Campanaro “was telling everyone that they were to stay in the sheds as there was a problem at West Gate.”  While Mr McGregor was taking this phone call from his informant, he could hear a voice in the background, which he thought sounded like that of Mr Campanaro, “telling everyone to wait in the sheds”.  At 9:46 am, Mr Spernovasilis again telephoned Mr Campanaro, and spoke for 47 seconds.  He did so again at 9:52 am, speaking for 24 seconds.

137               According to Mr McGregor, at about 10:00 am on 29 April 2009, Mr Spernovasilis and Mr Troy Gray, an organiser in the employ of the Electrical Trades Union (“the ETU”), arrived at the ANZ site.  They had not provided 24 hours’ notice of their visit.  Mr McGregor asked them whether their visit was “about the West Gate issue”, to which they did not reply directly, but told him that they were on the site “to speak to the men”.  They walked towards the site sheds.

138               On the same morning, Cameron Harper, the Project Manager at the ANZ site for Stowe Australia Pty Ltd (an electrical sub-contractor) was informed that the union representing its employees on that site, the ETU, had put all workers on notice of a dispute about the West Gate freeway upgrade.  Mr Harper said that, at 9:36 am, the ETU informed the electrical workers that they were required to attend the West Gate dispute.  There were about 180 workers on the ANZ site who were members of the ETU (employed both by Stowe and by another company, Maxim Electrical) and, save for a couple who remained, all these workers left the site. 

139               At about 10:15 am, it was obvious to Mr McGregor that the majority of the workers on the ANZ site were leaving the site.  He saw them leaving both on foot and by car.  In total, about 500 workers left the site.  It seems that these workers drifted away from the site over the next hour or so, since, when the applicant arrived at about 10:50 am, there were people standing outside the entrance gates to the ANZ site.  He observed about 100 workers moving away from the site.  He too saw some on foot, and some in cars.  He spoke to two of them, and asked them whether they were “heading to the bridge”.  One of them replied, “Yes, we’re going to the West Gate.”

140               The CFMEU shop steward at the Multiplex “SouthbankONE” site at 174-184 City Road, Southbank (“the Multiplex site”) was Mr Mates (with reference to whom see para 122 above).  At 6:35 am on 29 April 2009 he spoke on the telephone to Mr Powell for about 20 seconds.  At about 6:40 am, Mr Mates telephoned the senior site manager at the Multiplex site, Phillip Lacey.  He informed him that the CFMEU was going to withdraw its labour that day, and join a protest at the West Gate bridge.  He said that he would leave a hoist operator and a first aider/peggy on-site, and that the others would return at 11:00 am.  The ETU shop steward on the Multiplex site was Pedro Enciondo.  At about 8:30 am, Mr Lacey was informed by him that the ETU members would also join the protest.  Most of the CFMEU and ETU members did leave the Multiplex site that day.  Only a small number returned at about 11:00 am.  The remainder, about 260 in number, did not return to work at the Multiplex site that day.  So far as Mr Lacey was aware, no organiser from the CFMEU or the ETU visited the Multiplex site that day.  About 270-280 workers left the Multiplex site, apparently to join the protest at the West Gate bridge. 

141               On 29 April 2009, the police were present at the corner of Sardine and Lorimer Streets from about 5:00 am and, again using water barriers, they cordoned off Sardine Street.  By about 5:30 am, there were about 40 protesters in Lorimer Street.  By about 7:00 am, there were about 250 protesters there.  Over the course of the morning, the number of protesters in Lorimer Street grew steadily to a maximum of about 500 persons.  If this figure (a police estimate) is accurate, clearly not all of the workers who stopped work and left the ANZ site, the Multiplex site and the South Wharf site participated in the protest.  However, it is a compelling inference that many of them did so, and were organised to do so by the CFMEU.  Whilst waiting for some action on the part of John Holland, the protesters passed the time by participating in two-part chants, usually led by a CFMEU organiser standing in an elevated position (such as the tray of a utility vehicle).  Adrian McLoughlin (an organiser) was conspicuous in leading the protesters in this way.  When, through his megaphone, he would ask the protesters what they wanted, they would respond that they wanted their “jobs back”.  When he asked them when they wanted this, they would respond that they wanted it “now”.  Since there were only ever about 30 employees who had lost their jobs with Civil Pacific, one can only infer that the cry of “jobs back” from up to 500 protesters was to be taken as an indication of a unifying industrial theme, rather than literally. 

142               It was Mr Stephenson who, from the video footage I have viewed, appeared to be in the role of organisational leadership.  At about 9:35 am, for example, he addressed the protesters by way of a megaphone.  He said:

Ok, it looks like we’ve got 250 of ‘em and ah, I think they’re expecting similar numbers today but this time we’ve got them outnumbered and I can tell you we’ve got around 100 people at the foot of the Westgate Bridge who are protesting there so we’ve got people all over the place including around the corner…[rest of sentence inaudible]…and there’s also 150 riot police around the corner.  Now, um, rather oddly, the police have asked us what our intentions are.  Um, now I think it’s pretty plain, we’re expecting that they’re going to try and get a bus load of scabs down here and through that gate into the compound down there and uh, we’re going to try and stop ‘em….

143               Aside from the presence of union organisers (including Messrs Powell and Stephenson), there is no question but that this large gathering in Lorimer Street on 29 April 2009 was the project of the CFMEU.  Tendered on behalf of the applicant were many video clips of the activities of these protesters that day.  From their attire, from the flags they were waving, from their obedience to the organisers’ indications and from the insignia which they wore, the protesters left no doubt but that they were participating in an organised union activity (rather than, for example, in some kind of spontaneous community demonstration). 

144               Contrary to Mr Stephenson’s stated expectations, John Holland did not attempt to get a bus load of workers on to the eastern compound via Lorimer Street.  Rather, at about the same time as Mr Stephenson was addressing the protesters, the John Holland workers were conveyed into the eastern compound by way of a rear gate at which there were no protesters present.  When this circumstance became known to the protesters, many of them walked, along a fairly primitive foot track, to the rear entrance.  There were a few police guarding that entrance.  The protesters proceeded to erect a large barricade, formed by a pile of heavy pieces of timber, in front of that entrance.  I infer that it was the intent of the protesters that this barricade should not be easily removed: the video footage which I have viewed indicates that, in some instances at least, it required a number of men to carry even one length of timber.  One old derelict item employed appeared to be a small platform or landing of some kind, consisting of several pieces of timber bolted or otherwise joined together.  So far as I could see, it required about five men to carry this and put it in place on the barricade.  All the time, a large assembly of protesters, some waving CFMEU flags, was present.  The atmosphere was one of conspicuous approbation.  Mr Stephenson was present, in the front row of the onlookers. 

145               The workers brought to the eastern compound proceeded with their task of loading materials on to trucks for transport to the bridge.  At various times while they were doing so, they were subjected to strong verbal abuse by protesters, who positioned themselves along the fence-line of the eastern compound at points most proximate to the position of the workers. 

146               In due course it was necessary to move the trucks with the materials, and the workers, out of the eastern compound and towards the bridge.  Preparations for this were made under the coordination of the police.  It was decided to bring the vehicles out through the Sardine Street main gate.  At this time, the police continued to maintain their barricade at the intersection of Sardine Street with Lorimer Street, such that the protesters were confined to Lorimer Street. 

147               From about 11:20 am, the police negotiated with representatives of the CFMEU (including Bill Oliver, the secretary of the Victorian Branch of that union; and Messrs Powell and Reardon) for the trucks and buses to be given safe passage along Lorimer Street.  Ultimately, an agreement to that end was reached, the effect of which was stated by Mr Edwards (by way of megaphone) to the protesters in Lorimer Street: “We line up on the nature strip on either side, you can call it what you like, but we are not going to have a confrontation with the police, because that is not the issue….”  Mr McLoughlin said to some of the protesters who were there: “We have come to an agreement to let the scab workers out so can everyone do single file on both sides of the road.”  He then said: “Don’t throw stuff at the vans but you can swear and whatever.” 

148               At this stage the protesters moved to either side of Lorimer street over a distance which, from the appearance in the video footage put before the court, appears to have extended about 200 metres north from the intersection of Sardine Street.  The John Holland convoy, led by a slow-moving police car, came out of Sardine Street at about 1:00 pm.  As the convoy moved along Lorimer Street, it was escorted on either side by foot-police, who were walking at the pace of the convoy.  Mr McLoughlin positioned himself in the middle of Lorimer Street, moving ahead of the convoy with his megaphone.  He led the groups on either side in a chant in which he would cry, “What do we want?”, and the protesters would respond “Jobs back”; then Mr McLoughlin would cry “When do we want it?”, and the protesters would respond, “Now”.  A different version, also used by the protesters, was to say that what they wanted was “Scabs out”.  As Mr McLoughlin was leading this chant, he was thrusting his free hand (the one not holding the megaphone) into the air with a clenched fist.  As the protesters responded, many of them raised their clenched fists in time with their responses.  From the appearance and sound of this on the video footage, the whole performance was loud, aggressive and potentially intimidating. 

149               As the protesters were acting as I have described, the John Holland convoy, led by the police car, moved down Lorimer Street, between the rows of protesters.  As the trucks and buses passed by, the protesters were no longer responding to Mr McLoughlin’s chants.  Rather, they were yelling indiscriminate abuse at the vehicles, and those inside them.  They were waving their arms, pointing their fingers at the vehicles and generally behaving in an aggressive and intimidating way.  Although, for the most part, the protesters complied with the union organisers’ instructions to remain on the sides of the road, in some cases they approached closely to the vehicles, pointing their fingers at the occupants, and at times at least one of the buses was struck by protesters.  On one of the videos, one of the protesters may be seen spitting towards the cabin of one of the trucks.  The rate of progression of the convoy was apparently determined by the speed of the lead vehicle, the police car.  Although no protesters stood in the way of the convoy, the lead vehicle did travel slowly, I infer in the interests of safety.  The result was that those in the buses who had employment on the project were obliged to run the gamut of the lines of abusive protesters to the left and right over a period of about 3 minutes after the convoy entered Lorimer Street from Sardine Street.  After that, the convoy was clear of the protesters and departed.

Provisions on which the applicant relies

150               The applicant submits that the respondents’ conduct was unlawful under ss 38, 43 and 44 of the BCII Act. 

151               Section 38 provides that “A person must not engage in unlawful industrial action”.  By the terms of s 37, “unlawful industrial action” is “building industrial action” which is “industrially-motivated”, “constitutionally-connected” and “not excluded action”.  With certain presently irrelevant exclusions, under s 36 “building industrial action” is defined as:

(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;

Under s 36, “industrially-motivated” means –

… motivated by one or more of the following purposes, or by purposes that include one or more of the following purposes:

(a)        supporting or advancing claims against an employer in respect of the        employment of employees of that employer;

(b)        supporting or advancing claims by an employer in respect of the employment        of employees of that employer;

(c)        advancing industrial objectives of an industrial association;

(d)        disrupting the performance of work.

The employer referred to in paragraphs (a) and (b) need not be the employer whose employees do the work to which the action relates.

I need not refer to the terms of the Act which deal with the other two requirements of the definition of “unlawful industrial action” – that it be constitutionally-connected and that it not be excluded – since those requirements are not presently controversial.  It is clear that, if the respondents took action which should otherwise be regarded as unlawful industrial action as defined, it was constitutionally-connected, and it was not excluded. 

152               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.

(2)        Subsection (1) does not apply unless:

            (a)        the first person is an organisation or a constitutional corporation; or

            (b)        the second person is a constitutional corporation; or

            (c)        the conduct occurs in a Territory or Commonwealth place.

There is no definition of “coerce” in the BCII Act, but the authorities establish at least that coercion involves the application of pressure calculated to negate choice on the part of the victim, where the means employed are unlawful, illegitimate or unconscionable: Seven Network (Operations) Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (2001) 109 FCR 378, 388 [41].  Under s 4(1) of the BCII Act, a “building employee” is a person whose employment consists of, or includes, “building work”, or a person who accepts an offer of engagement as an employee for work that consists of, or includes, “building work”.  The definition of “building work” in the BCII Act is lengthy: it is sufficient for present purposes to say that the work being carried out at, and for the purposes of, the West Gate bridge strengthening project was building work on any view.  By s 4(1) of the BCII Act, a “building contractor” is a person who has entered into, or who has offered to enter into, a contract for services under which the person carries out building work or arranges for building work to be carried out.

153               Section 44(1) of the BCII Act provides as follows:

(1)        A person must not:

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

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

            with intent to coerce another person, or with intent to apply undue                        pressure to another person, to agree, or not to agree:

            (c)        to make, vary or terminate, or extend the nominal expiry date of, a                       building agreement under Part 8 of the Workplace Relations Act; or

            (d)        to approve any of the things mentioned in paragraph (c).

The BCII Act does not define the expression “undue pressure”, but, as will become apparent in my reasons below, the application of this section in situations of coercion (as understood in the Seven Network sense) will be sufficient for present purposes.  

154               The steps referred to in para (c) of s 44(1) were (at the relevant time) provided for under Part 8 of the WR Act, as the provision implies.  In the present case, to the extent that the provisions of s 44(1) were otherwise enlivened, the respondents made it clear that they did not contest the applicant’s proposition that it was an agreement under Part 8 of the WR Act which they sought to have Civil Pacific and/or John Holland make.  The respondents made that concession (as their submission effectively was) as a matter of fact, while pointing out that they did not accept the construction given to s 44(1)(c) in my interlocutory judgment in John Holland Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (2009) 174 FCR 526, 538-540 [43]-[46].  For present purposes, I shall proceed by reference to the concession as so made. 

155               The applicant relies also upon certain special provisions of the BCII Act and of the WR Act under which liability for the conduct of members of an association may, in certain circumstances, be attributed to the association itself; and under which a person who had certain categories of secondary involvement in conduct constituting a contravention of a civil remedy provision under the BCII Act may be regarded as having contravened the provision in question. 

156               Subsections (1) and (3) of s 69 of the BCII Act provide as follows:

(1)        For the purposes of this Act, the following conduct in relation to a building            association is taken to be conduct of the building association:

            (a)        conduct of the committee of management of the association;

            (b)        conduct of an officer or agent of the association acting in that                              capacity;

            (c)        conduct of a member, or group of members, of the association where                   the conduct is authorised by:

                        (i)         the rules of the association; or

                        (ii)        the committee of management of the association; or

                        (iii)       an officer or agent of the association acting in that capacity;

            (d)        conduct of a member of the association, who performs the function                      of dealing with an employer on behalf of the member and other                               members of the association, acting in that capacity.

….

(3)        In this section:

            officer, in relation to a building association, includes:

            (a)        a delegate or other representative of the association; and

            (b)        an employee of the association.

The applicant relied also on subs (2) of s 826 of the WR Act, which provided as follows:

(2)        Any conduct engaged in on behalf of a body corporate by:

            (a)        an officer, director, employee or agent of the body corporate                                within the scope of his or her actual or apparent authority; or

            (b)        any other person at the direction or with the consent or agreement                       (whether express or implied) of an officer, director, employee or                            agent of the body corporate, where the giving of the direction,                                  consent or agreement is             within the scope of the actual or apparent                     authority of the officer, director, employee or agent;

            shall be taken, for the purposes of this Act or the BCII Act (as the case   requires), to have been engaged in also by the body corporate.

157               In the present case, the applicant seeks penalties under Part 1 of Ch 7 of the BCII Act.  In that context, in terms which echo those of s 75B(1) of the Trade Practices Act 1974 (Cth), s 48(2) of the BCII Act provides as follows:

(2)        For the purposes of this Part, a person who is involved in a contravention of a       civil penalty provision is treated as having contravened that provision. For       this purpose, a person is involved in a contravention of a civil penalty   provision if, and only if, the person:

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

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

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

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

The applicant’s case on penalties

158               The present being a case in which the parties were agreed on the penalties to be imposed by the court, the applicant submitted that the propositions referred to by the Full Court in Minister for Industry, Tourism and Resources v Mobil Oil Australia Pty Ltd [2004] FCAFC 72, [51] should be applied:

(i)         It is the responsibility of the Court to determine the appropriate penalty to be         imposed under s 76 of the TP Act in respect of a contravention of the TP Act.

(ii)        Determining the quantum of a penalty is not an exact science. Within a   permissible range, the courts have acknowledged that a particular figure         cannot necessarily be said to be more appropriate than another.

(iii)       There is a public interest in promoting settlement of litigation, particularly where it is likely to be lengthy. Accordingly, when the regulator and      contravenor have reached agreement, they may present to the Court a       statement of facts and opinions as to the effect of those facts, together with         joint submissions as to the appropriate penalty to be imposed.

(iv)       The view of the regulator, as a specialist body, is a relevant, but not          determinative consideration on the question of penalty. In particular, the        views of the regulator on matters within its expertise (such as the ACCC’s     views as to the deterrent effect of a proposed penalty in a given market) will        usually be given greater weight than its views on more “subjective” matters.

(v)        In determining whether the proposed penalty is appropriate, the Court       examines all the circumstances of the case. Where the parties have put    forward an agreed statement of facts, the Court may act on that statement if it           is appropriate to do so.

(vi)       Where the parties have jointly proposed a penalty, it will not be useful to   investigate whether the Court would have arrived at that precise figure in the      absence of agreement. The question is whether that figure is, in the Court’s view, appropriate in the circumstances of the case. In answering that       question, the Court will not reject the agreed figure simply because it would     have been disposed to select some other figure. It will be appropriate if    within the permissible range.

159               In considering whether the penalties proposed by the parties were within the permissible range, the applicant submitted that I should work within the general framework of the considerations adverted to by Tracey J in Stuart-Mahoney v Construction, Forestry, Mining and Energy Union [2008] FCA 1426 at [40]:

In my view, potentially relevant and applicable considerations for determining the appropriate penalty for a contravention of the BCII Act include: 

·         The nature and extent of the conduct which led to the breaches.

·         The circumstances in which that relevant conduct took place.

·         The nature and extent of any loss or damage sustained as a result of the breaches.

·         Whether there had been similar previous conduct by the respondent.

·         Whether the breaches were properly distinct or arose out of the one course of conduct.

·         The size of the business enterprise involved.

·         Whether or not the breaches were deliberate.

·         Whether senior management was involved in the breaches.

·         Whether the party committing the breach had exhibited contrition.

·         Whether the party committing the breach had taken corrective action.

·         Whether the party committing the breach had cooperated with the enforcement authorities.

·         The need to ensure compliance with minimum standards by provision of an effective means for investigation and enforcement of employee entitlements.

·         The need for specific and general deterrence.

cf Hadgkiss v Aldin (2007) 164 FCR 394 at [61]; Furlong v Australian Workers Union (2007) 162 IR 171 at [7] – [10]; Carr v Communications, Electrical, Electronic, Engineering, Information, Postal, Plumbing and Allied Services Union of Australia [2007] FMCA 1526 at [7]; and Cruse v Construction Forestry Mining and Energy Union [2007] FCA 1873 at [71].

160               Dealing with the matters which called for particular attention in the circumstances of the present case, the applicant asked me to regard the following matters as indicative of the gravity of the respondents’ conduct:

(a)        the prominent role of the AMWU and the CFMEU as significant industrial         associations in the building and construction industry;

(b)        the conspicuous public display of civil disobedience;

(c)        the importance of the West Gate Project to the public and the fact that the conduct        took place at such an early stage of the project;

(d)        the continual need for the presence of police, on many occasions in considerable            force, at the expense of the public;

(e)        the failure or refusal to give undertakings and the denial of any involvement in     industrial action as alleged by John Holland;

(f)         the need for court orders;

(g)        the co-ordinated nature of the conduct;

(h)        the movement of the conduct following the making of interim and interlocutory    orders;

(i)         the continued escalation of the seriousness of the conduct over a three month period;

(j)         the increasing number of protesters and union officials involved in the conduct;

(k)        the re-ignition of the conduct on each occasion after failed attempts to negotiate a          resolution of the matters in dispute.

The applicant proposed that I should have particular regard to the impact of the respondents’ conduct on John Holland, its contractors, WorkPac, the employees of WorkPac, the police and the public. 

161               The applicant drew my attention to the instances in which one or more of the respondents had been found to have contravened laws analogous to those presently relevant.  I was also asked to note that the respondents’ conduct in the present case was manifestly deliberate, and, for the most part, was engaged in after the applicant or John Holland had secured injunctions restraining the respondents, or some of them, from engaging in conduct of a like nature.  No part of the applicant’s case was based upon the proposition that any of the respondents had breached the terms of an injunction which was binding on him or it, but the applicant submitted that the existence of the interlocutory proceedings in which those injunctions were obtained effectively excluded the prospect that the subsequent conduct of which the applicant does complain might have been inadvertent, for example. 

162               The applicant referred to the size of the CFMEU and the AMWU, and to the involvement, in the case of the CFMEU, of senior branch officials.  If I should find that the respondent unions had transgressed as submitted by the applicant, there would be no reason, he contended, to exercise restraint on the basis either that the respondent unions were of humble means or that the conduct in question was not deliberately engaged in by the them, the authority of those concerned (at least in the case of the CFMEU) relevantly deriving from the highest levels.  Unsurprisingly in the light of the facts to which I have referred above, the applicant submitted that the penalty imposed must reflect the need for specific and general deterrence, particularly with respect to the overtly and, it seems, unashamedly intimidating behaviour of the respondents towards other workers in the construction industry. 

163               The applicant submitted, and the respondents accepted, that the penalties jointly proposed took account of the totality principle.  Here the parties were referring to the fact that, even after the respondents’ conduct had been organised in the way to which I have referred in para 5 above, it remained important to take account of the circumstance that all the conduct of which the applicant complains was engaged in within the context of a single on-going industrial dispute, albeit a dispute which lasted nearly three months.  The respondents’ intent, upon which the applicant relied under each of ss 43 and 44, for example, was the same intent from start to finish.  Although the applicant submitted that the respondents should be penalised for each of the grouped contraventions to which I have referred, he likewise recognised that the totality principle called for some moderation of the penalties that might have been imposed with respect to any one of those grouped contraventions, considered in isolation. 

164               I have taken account of the principles to which the applicant refers.  Given the absence of any effective contradictor, and given the apparent soundness of those principles generally, I consider that it would be inappropriate for me to elaborate upon them further.  For the most part, in what follows, I have accepted the applicant’s submissions as to the consequences of the respondents’ conduct under ss 38, 43 and 44 of the BCII Act, and I have accepted that the penalties proposed by the parties fall within the appropriate range in each case. 

165               The applicant also invited me to make declarations by way of a formal record of the findings of contravention which I make in these reasons.  In this respect he did, however, rely upon Cruse v Mulitplex Ltd (2008) 172 FCR 279, 298-300, in which the Full Court held that there was utility in making declarations in circumstances in which contraventions had been found to have occurred but where no penalty was imposed.  In that proceeding, where a penalty was imposed, no declaration was made.  In the present case, there is no instance upon which I propose to find that a relevant provision of the BCII Act was contravened, but to decline to impose a penalty.  The orders by which I do impose penalties will make clear the nature of the conduct which attracted those penalties.  In the circumstances, I see no utility in taking the further step of making declarations. 

Industrial action by Civil Pacific employees on 5-6 February 2009

166               The applicant submitted that the employees of Civil Pacific (or at least most of them) had taken building industrial action as follows:

(a)        When 21 of them did not return to work at the completion of the morning break at         10:30 am on 5 February 2009;

(b)        When 21 of them refused to return to work at 11:00 am on 5 February 2009; and

(c)        When none of them attended for work on 6 February 2009.

167               I accept that the failure of the 21 Civil Pacific employees to return to work at 10:30 am on 5 February 2009 was “building industrial action” within the meaning of s 36(1) of the BCII Act.  The more difficult question is whether that action was “industrially motivated”.  Factually, I am in no position to infer the existence of any reason for these employees’ failure to return to work at 10:30 am other than that the business which they had with their union organisers was not by then complete.  I am not prepared to infer that the employees were motivated by the purpose of “disrupting the performance of work”.  However, although the failure to return to work was not used as a point of pressure in the advancement of the respondent unions’ claims against Civil Pacific, there is a sense in which it was motivated by “advancing [the] industrial objectives” of the respondent unions.  Fairly clearly, the point of the meeting on 5 February 2009 was to propose means by which the Civil Pacific employees could be involved in the advancement of the respondent unions’ industrial objectives.  By preferring to continue in the meeting rather than to return to work, it may readily be inferred that the Civil Pacific employees had the purpose of advancing those objectives.  I accept, therefore, that this period of building industrial action was industrially motivated and was, therefore, unlawful industrial action within the meaning of s 37 of the BCII Act.

168               The position that obtained when these employees did return to their work stations at 11:00 am on 5 February 2009 is, however, somewhat different.  The applicant invited me not to draw the inference to which I referred at the conclusion of para 19 above.  It was submitted on his behalf that, when Mr Cassells said (in para 35 of his affidavit affirmed on 5 March 2009) that these employees “returned to work at the Site Facility at approximately 11:00 am”, he meant no more than they returned to the site facility.  He did not mean that they proposed to work.  However, I can see no reason not to give Mr Cassells’ words the meaning which they naturally convey.  It is true that one available inference is that the employees had decided at the meeting that they would not work for the balance of the day, but at least as likely an inference is that they refused to work further on 5 February 2009 not for any of the purposes set out in the definition of “industrially motivated” in s 36(1) of the BCII Act, but because they had been informed in advance that, if they did resume work, they would do so without pay.  In the circumstances, I am not persuaded that the industrial action constituted by the failure of the 21 employees to work after 11:00 am on 5 February 2009 was industrially motivated.  That action was not, therefore, unlawful industrial action within the meaning of s 37 of the BCII Act.

169               The same considerations do not apply when one comes to the following day, 6 February 2009.  There is no suggestion that the Civil Pacific employees would not have been paid for any work which they carried out on that day.  For them, it was an ordinary working day, much like the others which had passed since Civil Pacific commenced work on the project.  However, as I have said earlier in these reasons, there is no evidence that any of the Civil Pacific employees made an attempt to attend for work on this day.  Indeed, some of them were on the picket line, the obvious purpose of which was to disrupt the performance of work at the site facility.  In the light of all the evidence to which I have referred above, including the meeting held on the morning of 5 February and the establishment of picketing infrastructure by the respondent unions, I consider that the most obvious inferential explanation for the absence of the Civil Pacific employees is that they chose to participate in a ban on work on the project imposed by the respondent unions.  In the absence of any suggestion that the employees were at odds with those unions, for those employees to have attended for work on 6 February would have been inconsistent with the steps taken by the unions on that day to prevent access to the site facility.  I am persuaded that the failure of the employees to attend for work on 6 February 2009 was motivated by the purpose of supporting or advancing the respondent unions’ claims against Civil Pacific and John Holland for the making of an industrial agreement to cover work on the project (incorporating rates more advantageous to the Civil Pacific employees than those they then enjoyed); for the purpose of advancing those industrial objectives of the respondent unions; and also for the purpose of disrupting the performance of work at the site facility, self-evidently as a means of achieving those objectives.  Thus I would hold that the failure of the employees of Civil Pacific to attend for building work on 6 February 2009 was industrially motivated.

170               In the result, I find that the 21 employees of Civil Pacific who remained absent from work from 10:30 am until 11:00 on 5 February 2009, and the employees of Civil Pacific who ought otherwise to have attended for work at the site facility on 6 February 2009, engaged in unlawful industrial action. 

171               The next question concerns the liability of the respondents for that industrial action.  The applicant submits that the respondent unions, and Messrs Powell and Mavromatis, are so liable.  With respect to the unions, he relies on s 69(1) of the BCII Act, contending that the industrial action was taken by a group of members of each union which was authorised by an officer or agent of the union (Messrs Powell and Mavromatis for the CFMEU and the AMWU respectively) acting in that capacity. 

172               The applicant has secured admissions the effect of which is that at least many of the Civil Pacific employees who took this industrial action and acted in the way I have indicated were, at the relevant times, members of one or other, or both, of the respondent unions.  From the definition of “officer” in s 69(3) of the BCII Act, it is clear that Messrs Powell and Mavromatis are to be regarded as officers in the statutory sense.  The applicant submits that their organisational involvement in convening, and conducting, the meeting on 5 February 2009 which did not end at 10:30 am gave rise to the inference that they authorised the failure of the Civil Pacific employees to return to work.  I accept that submission.  It is, in my view, the most natural interpretation of the events in question, particularly given the respondents’ decision not to call any evidence on the subject.  It follows that this period of industrial action was the conduct of the respondent unions. 

173               The applicant also submitted that it should be inferred that the failure of the Civil Pacific employees to attend for work on 6 February 2009 was authorised by Messrs Powell and Mavromatis (acting with respect to the members of their respective unions).  By reason of the matters referred to in paras 169 and 170 above, I am satisfied that this inference should be drawn, as it too is the most natural explanation for events in relation to which the respondents have declined to call evidence.  It follows that that period of industrial action was also the conduct of the respondent unions. 

174               For the liability of Messrs Powell and Mavromatis themselves, the applicant relies on s 48(2) of the BCII Act.  Given the involvement of, and the statements made by, Messrs Powell and Mavromatis in relation to the events of, and immediately preceding, 5-6 February 2009, there is, in my view, the clearest of inferences that they were at least directly and knowingly concerned in the unlawful industrial action to which I have referred.  I would also infer, in the light of their having declined to give evidence on the subject, that these men counselled and procured the Civil Pacific employees to take this industrial action.  Accordingly, for the purposes of the civil penalty provisions of the BCII Act, I consider that Messrs Powell and Mavromatis must be treated as having contravened s 38 of that Act on those days.

175               The applicant submitted that I should impose penalties of $36,000 on the CFMEU, of $5,000 on Mr Powell, of $35,000 on the AMWU and of $6,000 on Mr Mavromatis, in relation to these periods of industrial action.  Notwithstanding that I have not accepted the applicant’s case that the period after 11:00 am on 5 February 2009 was one of unlawful industrial action, I am satisfied that these penalties lie within the permissible range.  I shall impose them, consistently with the parties’ submissions. 

The picket line at the site facility on 6 February 2009

176               The applicant submitted that the picketing activities of the respondent unions, and of Messrs Powell and Mavromatis, on 6 February 2009 amounted to action with intent to coerce within the meaning of s 44 of the BCII Act.  I accept that, by these activities, those engaged in them intended to exert such pressure on John Holland and on Civil Pacific as would negate their choice to take any course other than to enter into a Pt 8 Agreement with the respondent unions.  Messrs Powell and Mavromatis took leadership roles in this respect, and their conduct on the picket line, and their words to John Holland representatives, left no doubt but that they asserted an ability, and an intention, to prevent work going ahead on the project until either John Holland or Civil Pacific, or both, indicated a readiness to make such an agreement.  That work on the project should be deferred on this ground was manifestly a circumstance which John Holland could not endure indefinitely, and I infer that Messrs Powell and Mavromatis were not only aware of that circumstance, but intended that it should be used to the unions’ advantage to secure the end which they sought. 

177               I also consider that the means employed by Messrs Powell and Mavromatis, and those who followed their leadership, were illegitimate.  The applicant made no systematic attempt to identify the respects in which those means should be regarded as having been unlawful, and I shall not comment further on that aspect of the problem.  However, the use of direct tactics, involving as it does the implication that the physical presence of human beings and mechanical objects would, if necessary, be used to prevent any commercially beneficial access to a major construction site, without any colour of justification save the ends sought to be achieved is, in my view, readily described as illegitimate.  I accept, therefore, the applicant’s submissions that Messrs Powell and Mavromatis took action on 6 February 2009 with intent to coerce Civil Pacific and John Holland (or either of them) to agree to make an agreement under Pt 8 of the WR Act. 

178               Since Messrs Powell and Mavromatis were officers of their respective unions, their conduct was, by s 69(1)(b) of the BCII Act, that of the unions themselves.  It follows that the respondent unions have likewise contravened s 44 of the BCII Act in relation to what occurred on 6 February 2009. 

179               The applicant proposed that a penalty of $55,000 should be imposed upon the CFMEU, that a penalty of $12,000 should be imposed upon Mr Powell, that a penalty of $45,000 should be imposed upon the AMWU, and that a penalty of $12,000 should be imposed upon Mr Mavromatis, with respect to the contraventions of s 44 on 6 February 2009.  I accept that these penalties are appropriate, and shall act in accordance with the parties’ submissions. 

Picketing activities at the project head office in the period 3-10 March 2009

180               The applicant next submitted that the events to which I have referred in paras 36-54 above should be taken together as a single course of conduct.  He alleged that Messrs Powell, Stephenson and Mavromatis contravened ss 43 and 44 of the BCII Act during this period, as did the unions of which they were officials.

181               In my interlocutory judgment given on 17 March 2009 in the John Holland proceeding (174 FCR 526), I divided the respondents’ conduct at the project head office, with which I am presently concerned, into three categories as follows (174 FCR at 540 [48]):

(i)         Activities and behaviour which could readily be described as illegitimate, if            not unlawful. In this category I would place such activities as urinating on, or conspicuously in the vicinity of, the project office, damaging the applicant's            property, banging on windows, abusing the applicant's staff, impeding             persons in the act of entering or leaving the project office, and the like.

(ii)        The display of union flags and paraphernalia and the peaceful presence of a         multiplicity of persons who, by their numbers and demeanour, are not    intimidating. Considered in isolation, I would not regard these kinds of     activities as illegitimate, even arguably. Neither do I consider that there is             any sense in which the applicant's choice is negated by them.

(iii)       Interference with the applicant's process of hiring staff for employment on           the project….

In this proceeding, the applicant did not rely upon the third category as such, although he placed considerable emphasis upon the conduct of the protesters towards the WorkPac crew on 10 March 2009. 

182               With respect to conduct of the kind described in the first category above, I refer to what I said in the John Holland proceeding on 17 March 2009 (174 FCR at 540-541 [49]):

On another view, however, there must be a real question whether, if confronted with the reality that conduct of this kind would go on indefinitely, the applicant would not reasonably take the view that the normal work of its staff at the project office would be so affected thereby as to give it no choice, in a practical sense, but to yield to the respondents' demands. It might also be said that the impact of the protesters’ activities outside the project office may not be confined to the applicant's balance sheet, as it were: the applicant’s responsibility to its own employees (which is defined by reference to their “working environment”: see Occupational Health and Safety Act 2004 (Vic), s 21) should not be overlooked in the mix of factors that might, ultimately, if not immediately, move the applicant to act as it would never have acted if given a free choice in the matter.

In the context of the evidence led by the applicant in the present case, I am persuaded that the conduct of the protesters, considered as a group with a collective agenda, was intended to negate John Holland’s choice in this sense.  I am also satisfied that this conduct, considered as a course in which the protesters engaged over the relevant period, is properly characterised as illegitimate. 

183               The applicant contended that Messrs Powell, Stephenson and Mavromatis had engaged in conduct which was in breach of ss 43 and 44 of the BCII Act.  From the evidence to which I have referred at paras 36-54 above, this contention is obviously correct in the case of Mr Mavromatis.  I accept the applicant’s submission that his conduct was “disgraceful”.  The involvement of Messrs Powell and Stephenson (particularly the latter) was more by way of leadership and organisation than by way of personal involvement in the specific acts which attract the operation of ss 43 and 44.  In the case of s 43, their conduct readily falls within the prohibition on organising action.  There is no such explicit prohibition in s 44, but I am satisfied that the conduct of Messrs Powell and Stephenson by way of leading and organising the protesters at the project head office over the relevant period was such as amounted to the taking of action in itself which had the necessary intent to coerce.  I also accept the argument advanced on behalf of the applicant that, because of their position as union officials, Messrs Powell and Stephenson (and, for that matter, Mr Mavromatis) were, as a matter of ready inference, in positions to influence the protesters as a group.  They took no step to prevent or discourage the individuals over whom they had this influence from engaging in the conduct to which I have referred in paras 36-49 above.  A conspicuous example of Mr Powell’s attitude in this regard was his smug retort to Mr Marshall on 6 March 2009, to which I have referred in para 45 above.  I infer from this primary evidence that Mr Powell was not only content, but quite pleased, to see John Holland and its staff harassed and vexed in the ways to which I have referred.  There is no similar evidence in the case of Mr Stephenson, but I am still satisfied, in the absence of any evidence from him, that his leadership and organisational role involved him in the taking of action of the kind referred to in s 44. 

184               During this period, it was, as I have indicated above, the object of the respondent unions, and of their officials including Messrs Powell, Stephenson and Mavromatis, that John Holland should employ the former Civil Pacific employees, and should do so pursuant to an industrial agreement to which the respondent unions would be parties.  The conspicuous focus of those protesting at the project head office during this period was with the former objective, doubtless because the recently-dismissed status of the former Civil Pacific employees gave them a grievance.  However, it is no less clear that no engagement of those employees under the Southern Region Agreement would have been acceptable to the respondent unions.  They left John Holland in no doubt about their position on that subject when they met at the corporate head office on 3 March 2009.  I therefore accept the applicant’s contention that the conduct with which I am now concerned contravened both s 43 and s 44, in the sense that it was done with the intent referred to in each section.

185               By the operation of s 69(1)(b) of the BCII Act, the conduct of Messrs Powell and Stephenson to which I have referred above was that of the CFMEU, and the conduct of Mr Mavromatis was that of the AMWU.  Each of the respondent unions did, therefore contravene ss 43 and 44 in like manner as their respective officials. 

186               The applicant proposes that penalties of $70,000, $7,000 and $7,000 be imposed upon the CFMEU, Mr Powell and Mr Stephenson, respectively, for their contraventions of s 43 on this occasion, and that penalties of $17,500, $2,000 and $2,000 be imposed upon them, respectively, for their contraventions of s 44.  He proposes that penalties of $60,000 and $7,000 be imposed on the AMWU and on Mr Mavromatis, respectively, for their contraventions of s 43, and that penalties of $11,000 and $2,000 be imposed on them, respectively, for their contraventions of s 44.  The respondents did not contest the appropriateness of these penalties.  I am satisfied that they are within the permissible range in all the circumstances, and I shall act in accordance with the applicant’s proposal.

Picketing and protesting at the site facility and the corporate head office in the period 11-13 March 2009

187               The applicant submitted that the picketing at the site facility, and the associated activities of the former Civil Pacific employees, together with the behaviour of some of those employees, and Messrs Powell and Mavromatis, at the corporate head office in the period 11-13 March 2009 should be taken as a single course of conduct.  He alleged that, as a result of that picketing and those activities, the respondent unions (but not the other respondents) had contravened ss 43 and 44 of the BCII Act.  At the general level, I am satisfied that this conduct was engaged in with a view to applying pressure upon John Holland to employ the former Civil Pacific employees, and to agree to make an agreement under Pt 8 of the WR Act.  I am also satisfied that the intent was that John Holland’s choice to do otherwise should be negated, and that the means employed were at least illegitimate.  It follows that there was coercion in breach of ss 43 and 44 involved in the conduct with which I am presently concerned. 

188               The more difficult question is whether the respondent unions organised or took the action in question within the meaning of ss 43 and 44, or whether they had the kind of involvement as is referred to in s 48(2) of the BCII Act.  The question must be addressed because, as appears from my reasons above, union organisers were not, at least so far as visible indications are concerned, always directly involved. 

189               With respect to the picket line, and associated illegitimate conduct, at the site facility, the applicant relied first upon the position of Mr Kerin.  It is said that he satisfied the description of a person acting with the consent or agreement of an officer, employee or agent of one or both of the respondent unions, such consent or agreement being within the scope of the actual or apparent authority of that officer, employee or agent.  If so, by s 826(2) of the WR Act, Mr Kerin’s conduct must be taken to have been engaged in also by the respondent unions, or whichever of them satisfied this description.  The officers, employees and agents whose consent or agreement was said to be relevant in the present circumstances were (in the case of the AMWU) Mr Mavromatis and (in the case of the CFMEU) Messrs Powell and Stephenson. 

190               I accept that Mr Mavromatis was an employee of the AMWU, and that Messrs Powell and Stephenson were employees of the CFMEU.  In each case, being a union organiser was the primary, full time occupation of the person concerned.  I also accept, in the absence of evidence from the respondents, that the enrolment of Mr Kerin to assist in the respondent unions’ campaign against John Holland (if that is what occurred) was within at least the apparent authority of each of the organisers.  The material generally leaves little doubt but that Messrs Mavromatis, Powell and Stephenson were, generally speaking, entrusted with the prosecution of the respondent unions’ campaign against John Holland, at least insofar as “on the ground” activities were concerned.  The real question, then, is whether Mr Kerin’s conduct was done with the implied consent or agreement of any, and if so which, of Messrs Mavromatis, Powell and Stephenson. 

191               The only evidence of any relevant contact as between Messrs Mavromatis and Kerin was the four-minute telephone call on 18 February 2009 and the 39-second call at 5:24 am on 11 March 2009.  I do not regard the former as sufficiently proximate to provide the basis for any inference that what Mr Kerin did on 11 March 2009 and thereabouts was done with the consent or agreement of Mr Mavromatis.  The latter was proximate, and, in the absence of any evidence from Mr Mavromatis, provides one strand in the inferential cable which supports the applicant’s case against the AMWU.  The other strands are the joint nature of the action being taken by the respondent unions, the extensive contact which occurred between Mr Kerin and Mr Stephenson at about this time, the attendance of Mr Mavromatis at the CFMEU caravan and the fact that the former Civil Pacific employees who engaged in the conduct as such included members of the AMWU.  No one of these circumstances would be sufficient alone, but, taken together, they presented a case which needed to be answered.  It is here that it is, in my view, particularly significant that the AMWU chose not to call Mr Mavromatis.  I realise that this choice was the result of the terms on which the case was settled, but it was a choice nonetheless.  I am bound to conclude that no evidence which Mr Mavromatis might have given on the subject would have dispelled the impression which arises as a matter of fair inference in the way set out above, namely, that he consented to or agreed with the conduct of the protesters taken in contravention of ss 43 and 44 of the BCII Act.

192               Turning to the position regarding the CFMEU, Mr Kerin was in very regular contact with Mr Stephenson, and I consider it quite improbable that the latter did not consent or agree to the former’s conduct in the vicinity of the site facility over this period.  The inference that I am prepared to draw in this regard is strengthened by the circumstance that the CFMEU itself had been restrained, by its servants or agents, from attending within 100 metres of any entrance to the site facility.  Accepting, as I do, that the CFMEU remained intent upon prosecuting its campaign against John Holland by means which would bring effective pressure to bear, I regard it as almost self-evident that the purpose of the frequent contacts between Messrs Stephenson and Kerin over the period in question was to coordinate the activities of the latter, and his acting, in effect, as the proxy of the CFMEU organisers in relevant respects.

193               In the result, I am satisfied that the respondent unions did, pursuant to s 826(2)(b) of the WR Act, engage in conduct together with those individuals directly involved at the entrances to the site facility over the period 11-13 March 2009. I do not rely on s 826 to impute to those unions the intent required by ss 43 and 44 of the BCII Act: that intent is evident from the circumstances of the unions’ campaign against John Holland generally, and from the evidence to which I have referred elsewhere.  The conduct having been imputed by s 826, the unions are affected by the nature of it, namely, that it was illegitimate.  In the result, I accept the applicant’s submission that the respondent unions contravened ss 43 and 44 in relevant respects.

194               The same result could be achieved, perhaps more directly, under s 48(2) of the BCII Act.  For reasons given above, there could be no denying that the CFMEU was at least knowingly concerned in the contraventions of ss 43 and 44 committed by those who directly blocked the access of John Holland to the site facility over the period 11-13 March 2009.  I also consider, however, that, by reason of the circumstances touching its employed organiser Mr Mavromatis to which I have referred above, the AMWU was also knowingly concerned in those contraventions. 

195               To date I have dealt only with conduct which occurred in the vicinity of the entrances to the site facility.  The applicant relied also upon the conduct on 11 March 2009 to which I have referred at paras 61-63 above, in which some of the former Civil Pacific employees, including at least Mr Padula, followed the WorkPac employees to the McDonalds restaurant, harassed them there, and later abused them in the vicinity of the corporate head office in Abbotsford.  The only individual identified by the applicant as having participated in this conduct was Mr Padula himself, although I am prepared to infer that at least some of the others were former employees of Civil Pacific. 

196               It is established that Mr Padula was a member of both of the respondent unions.  That being the case, the applicant relied upon what was said to be “the fact” that the former Civil Pacific employees (including Mr Padula) were acting at the direction or with the consent or agreement of Messrs Powell or Stephenson, each of whom was said to be acting within the scope of his actual apparent authority.  Although no statutory point of reference was given for this formula, the applicant here appears to be relying upon s 826(2)(b) of the WR Act.  That being the case, it is not to the point that Mr Padula was, or that some of his companions may not have been, members of the CFMEU. 

197               With respect to so much of the activities of Mr Padula and his companions as involved harassing the WorkPac employees at the McDonalds restaurant on 11 March 2009, I am not prepared to infer that any of Messrs Mavromatis, Powell or Stephenson directed, agreed to or consented to those activities.  It may be a fair inference that Mr Padula and co were at least wired into the general objectives and purposes of those operating the picket at the site facility, and were acting with a view to interfering with John Holland’s attempts to procure labour for the bridge project.  However, that does not make it more likely that the means they chose to employ were done at the direction, or with the agreement or consent, of the union organisers than that they were acting on their own initiative, as it were.  What they did at McDonalds was, geographically and in every other ostensible sense, outside the organisational boundaries of the picket line at the site facility as such.  The only other arguably relevant person with whom Mr Padula was in telephone contact about this time was Mr Slaven.  Although I am prepared to infer that he was aware of Mr Padula’s activities at McDonalds, Mr Slaven was not the employee or agent of either of the respondent unions within the meaning of s 826(2) of the WR Act. 

198               The position becomes different at the point where Mr Padula arrived at the corporate head office, and engaged in conduct which I would regard as illegitimate with respect to the WorkPac employees who attended that location for the purposes of induction and training.  It is, in my view, a fair inference that Mr Stephenson knew generally of the purposes being pursued by Mr Padula, and, in the absence of any evidence from either, that he consented or agreed to the conduct in which Mr Padula and his companions engaged.  No other reason for Mr Stephenson being in telephone contact with Mr Padula while the latter was in Abbotsford was ventured, nor, in my estimation, is apparent on the material.  Indeed, I think it quite likely that Mr Padula’s telephone call to Mr Powell at 11:48 am was something in the nature of “signing off” as it were, by which Mr Powell effectively authorised Mr Padula to discontinue his activities in Trennery Crescent. 

199               Both Mr Powell and Mr Mavromatis were directly involved in the protest action outside the corporate head office on 12 March 2009: see para 71 above.  I consider that that action was illegitimate, and, taken in the context of the facts of the case generally, amounted to contraventions of ss 43 and 44 of the BCII Act by each of them.  Because they were organisers in the employ of their respective unions, those unions were likewise in contravention. 

200               The applicant proposed that penalties of $70,000 and $17,500 should be imposed upon the CFMEU for its contraventions of ss 43 and 44, respectively, of the BCII Act over the period 11-13 March 2009.  The corresponding penalties proposed in the case of the AMWU were $60,000 and $11,000 respectively.  The only respect in which I have not accepted the applicant’s case is that which related to the activity of Mr Padula and his companions at the McDonalds restaurant.  Although those activities were vexing, intrusive and, depending on one’s perspective, potentially intimidating, I do not consider that the omission of them from the range of conduct established as against the respondents makes any difference to the appropriateness of the penalties proposed by the applicant.  I accept the applicant’s case that the respondent unions engaged in a course of conduct over the period 11-13 March 2009, the seriousness of which was to no material extent depreciated by the inability of the applicant to sheet home to them what occurred at the McDonalds restaurant.  I shall, therefore, impose the penalties proposed by the applicant.

Contractor bans imposed by the CFMEU on 13 March 2009

201               The applicant submitted that the conduct of Mr Stephenson in contacting Mr McElligot on 12 March 2009, and his conduct, and that of Messrs Paterson and Lynch, at the meeting of the workers from McElligot’s, ET Higham and Bell Scaffolding on 13 March 2009, gave rise to contraventions of ss 38, 43 and 44 of the BCII Act.  I am not satisfied that, in his conversation with Mr McElligot on 12 March 2009, Mr Stephenson contravened s 38.  What Mr Stephenson said to Mr McElligot did not, in my view, amount to a ban, limitation or restriction on the performance of work.  Turning to Mr Stephenson’s statements at the meeting with the contractors’ employees at the Vicroads depot on 13 March 2009, the applicant submitted that, by those statements, Mr Stephenson engaged in a ban, limitation or restriction on the performance of work on the bridge in contravention of s 38.  There are two ways in which this matter can be viewed.  The first is to recognise that, while he went through the motions of taking a vote at the meeting, it was Mr Stephenson who ultimately imposed the ban.  On any view he engaged in the ban within the meaning of s 38.  This was the applicant’s case, and I accept it.  An alternative way of viewing the matter is to treat the ban as having been imposed by the workers at the meeting.  If so, by his statements at the meeting, Mr Stephenson counselled and procured the imposition of the ban by the workers, and thus contravened s 38 by the operation of s 48(2).  Whichever way the matter is viewed, by reason of s 69(1)(b), the conduct of Mr Stephenson was also the conduct of the CFMEU, so it too contravened s 38 of the BCII Act. 

202               The application of ss 43 and 44 of the BCII Act to the circumstances of the meeting of workers on 13 March 2009 is more straightforward.  I accept that Mr Stephenson’s whole program in relevant respects (including his telephone conversation with Mr McElligot on 12 March) amounted to “action” within the meaning of these sections.  His obvious intent was to procure the cessation of the only productive work which was then being performed on the bridge.  Although he gave Mr McElligot a choice to comply with his program (a choice which was, as it happens, rejected in the telephone conversation), and although he gave the workers a choice of sorts at the meeting on 13 March, Mr Stephenson had the intent of procuring the cessation of work, and the effect of his success in that regard would have been to add to the pressure on John Holland to comply with the CFMEU’s demands, and in that sense to negate choice.  In this respect I would take the same approach to the matter as I did in Williams v Construction, Forestry, Mining and Energy Union (2009) 179 IR 441, 477‑478 [106].  The means employed were, on any view, illegitimate. 

203               The applicant proposes that penalties of $40,000, $50,000 and $10,000 should be imposed on the CFMEU for its contraventions of ss 38, 44 and 43, respectively, of the BCII Act with respect to the contractor bans on 13 March 2009.  He proposes that the corresponding penalties for Mr Stephenson should be $10,000, $7,000 and $2,000, respectively.  There are two respects in which I have not accepted the applicant’s case in relation to these issues: the allegation that Mr Stephenson’s telephone conversation with Mr McElligot on 12 March 2009 was part of the contravening conduct, and the allegation that the bans remained in place until about 14 May 2009.  These qualifications to the findings which I otherwise make in the applicant’s favour are, however, of little consequence in the overall scheme of things.  I regard these bans, as imposed by Mr Stephenson on 13 March 2009, as serious.  The dispute which the CFMEU had with John Holland was not the concern of the contractors’ workers.  The CFMEU had no disagreement with McElligot’s or the other contractors: they were, it seems, abiding by the terms of industrial instruments which were acceptable to the CFMEU.  There is evidence from which it appears that the workers who Mr Stephenson procured to cease working on the bridge project thereafter endured a period of financial hardship, as the result of lack of work.  It is, in my view, most unfortunate that Mr Stephenson, and through him the CFMEU, should have chosen to use other workers as instruments in their dispute with John Holland in this way.  I also regard it as illegitimate for Mr Stephenson to have interfered in the perfectly normal contractual arrangements which existed between John Holland and third parties.  Save as a weapon indiscriminately used, I cannot understand why the CFMEU would not have allowed work to continue pursuant to these contracts which were, it seems, quite unobjectionable in themselves.  In all the circumstances, I am prepared to accept the appropriateness of the range of penalties proposed by the applicant in relation to this course of conduct. 

Miscellaneous conduct over the week 16-21 March 2009

204               The applicant proposed that the events to which I have referred at paras 82-104 above should be taken as a single course of conduct for present purposes.  I am content to proceed in that way.  The applicant submitted that each of the respondent unions contravened each of ss 43 and 44 of the BCII Act by its involvement in those events.  I would have no hesitation in concluding that Messrs Powell and Stephenson were involved in those events, and that the CFMEU was likewise an actor by reason of s 69(1)(b) of the BCII Act and/or s 826(2) of the WR Act.  Throughout the whole of this period there was, it seems, a continuing blockade of the entrance to the site facility, generally organised by Mr Kerin.  I infer that the relationship between him and the CFMEU over the period in question was a continuation of, and was effectively the same as, that which I have found to exist with respect to the period 11-13 March 2009.  Messrs Powell and Stephenson were both present among the protesters at the corporate head office on 17 March 2009, Mr Powell was at the project head office on the same day, and Mr Stephenson was at the project head office on 19 March 2009.  Indeed, he was present, and seemingly in command, when the passengers in the small silver sedan were subjected to what could only have been a most frightening experience at the hands of the protesters outside the project head office on that day. 

205               Mr Mavromatis was present, and was a conspicuous contributor, in what occurred at the corporate head office on 17 and 18 March 2009, and likewise participated in the harassment of John Holland staff at the project head office on 19 March 2009.  For reasons explained above, I am also persuaded that he consented to or agreed with, the blockade of the site facility.  He was observed to be in the vicinity of the respondent unions’ tent nearby, a presence which was consistent with implicit approbation of the picketers’ conduct in preventing people or vehicles having access to the site. 

206               I am satisfied that the conduct of the unidentified persons (but, I infer, probably including Messrs Moonsamy and Cheney) at the WorkPac office at Glen Waverley on 17 and 18 March 2009 was that of the respondent unions pursuant at least to s 69(1) of the BCII Act and s 826(2) of the WR Act.  The presence of the unions’ logos on the flyers then distributed makes it quite improbable that these unions did not authorise what was then done.  The more difficult question is whether the conduct of the people concerned, as odious as it was in relevant respects, was unlawful, illegitimate or unconscionable, or whether, by the message communicated by the flyer, and by their conduct generally, those people did not go beyond stating the unions’ position in their dispute with John Holland, and seeking support.  It was submitted on behalf of the applicant that the attendance of these people at the WorkPac office was calculated to intimidate those who worked there, particularly having regard to what had previously occurred with respect to the workers employed by WorkPac at the project head office on 10 March 2009, at the McDonalds restaurant and at the corporate head office on 11 and 12 March 2009.  I accept that submission, and would add a reference to the conversation which Mr Twentyman had with one of these people to which I have referred at para 92 above.  Had the intention of these people been no more than to communicate information, one of them might easily have placed the unions’ flyers on the windscreens of cars in the car park, and left a copy at the WorkPac reception desk.  The presence of four men, and their continued attendance outside the office implies a more sinister purpose: the silent but potent message that WorkPac and its staff were now within the general envelope of the dispute and might, at the discretion of the respondents, have the conduct of their normal working arrangements interrupted.  I am satisfied, therefore, that this conduct had the character of illegitimacy necessary to contribute to the applicant’s case with respect to the period 16-21 March 2009.  

207               The applicant proposes that penalties of $70,000 and $17,500 should be imposed on the CFMEU for its contraventions of ss 43 and 44 over this period, and that the corresponding penalties to be imposed on the AMWU should be $65,000 and $11,000 respectively.  I consider that penalties of this order are appropriate for the contraventions of ss 43 and 44 which I have found to have occurred. 

The events of 30-31 March 2009 at the project head office and the site facility

208               The applicant grouped the events to which I have referred at paras 106-117 above as a single course of conduct, and submitted that, by its involvement in those events, the CFMEU contravened ss 43 and 44 of the BCII Act.  I am not persuaded that what happened on 26 and 27 March 2009 on the aprons to the bridge itself amounted to conduct in contravention of those provisions.  From all that the evidence shows, there was nothing unlawful or illegitimate about the conduct of Messrs Stephenson and Powell, or of those with whom they were apparently associated, on these days.

209               However, the position is very different when one comes to 30 March 2009.  The object of the protesters at the project head office on that day was to prevent John Holland making any productive use of the services of the workers who had recently been inducted into the workforce.  The result of the protesters’ actions was that those workers could not even be kitted out with their protective equipment for work on the bridge.  The conduct of the protesters towards the workers as they were leaving the premises was illegitimate on any view, and it takes little imagination to perceive respects in which some of that conduct would most probably have been unlawful.  The conduct was an example of the protesters’ attempts to leave John Holland with no choice but to employ the former Civil Pacific employees, and to make an agreement under Pt 8 of the WR Act.  By reason of the telephone communications to which I have referred, and by reason of Mr Powell’s presence that day in the vicinity of the project head office, and of his observed conversations with the protesters, I infer that the conduct of the protesters was done with the agreement or consent of himself and of Mr Stephenson.  The conduct was, in the circumstances, that of the CFMEU pursuant to s 826(2) of the WR Act.

210               With respect to 31 March 2009 at the site facility, the evidence is such that I should infer that the CFMEU was maintaining the picket line which had been in place for some time, the intent of which was to shut off supplies to the bridge project, and thus to prevent any productive work being performed on that project. 

211               The applicant proposes that penalties of $60,000 and $14,500 be imposed on the CFMEU for its contraventions of ss 43 and 44, respectively, of the BCII Act over the period 26-31 March 2009.  Although I am not persuaded that there were any contraventions on 26 or 27 March, I would regard these penalties as within the range with respect to the events of 30 and 31 March 2009.  Indeed, I would regard them as within the range with respect to the events of 30 March 2009 standing alone.  The conduct of the protesters at the project head office on that day was manifestly intended to intimidate.  Mr Powell’s contact with the protesters, and his presence in the vicinity of the project head office, justify the inference that he was at least unconcerned as to the tactics being employed by the protesters, and content for the CFMEU to take advantage of the pressure which was thereby applied to John Holland.  I shall impose the penalties proposed by the applicant.  

Conduct at the project head office in the period 7-9 April 2009

212               The applicant proposed that the events to which I have referred at paras 118-128 above should be treated as a single course of conduct and submitted that, by their involvement in those events, the CFMEU and Messrs Powell and Stephenson contravened ss 43 and 44 of the BCII Act.  I accept the applicant’s submission at both levels.  It will need no further elaboration at this stage for it to be clear that those events spoke very loudly of an intent to negate the choice of John Holland on the part of Messrs Powell and Stephenson.  I would have no hesitation in inferring that, between them, over the three days concerned, those two organisers procured the contraventions of ss 43 and 44 of the BCII Act which were so obviously apparent on the part of those engaging directly in the picketing activities outside the project head office.  Indeed, in the case of Mr Powell on 9 April 2009, I infer that he organised the action concerned within the meaning of s 43 of the BCII Act.  On any view, the conduct on each of these three days was engaged in with the consent or agreement of Messrs Stephenson and Powell, given within their apparent authority to act on behalf of the CFMEU.  The conduct was, therefore, that of the CFMEU itself.

213               The applicant has proposed that penalties of $85,000, $12,000 and $10,000 should be imposed upon the CFMEU and Messrs Powell and Stephenson, respectively, for their contraventions of s 43 of the BCII Act during this period.  The corresponding penalties suggested under s 44 are $25,000, $2,000 and $2,000.  In my view, the imposition of penalties of this order is amply justified by the conduct to which I have referred.  That conduct included the application of direct physical force to prevent vehicles leaving the project head office and wilful damage to property.  It was characterised by a readiness – indeed, a conspicuous intent – to overwhelm the attempts of the police to secure the passage of these vehicles and to deny the ability of fellow workers to engage in their lawful occupations.  No submission was made on behalf of the CFMEU and Messrs Powell and Stephenson that they were not responsible for what happened on these days.  Indeed, on 9 April 2009, Mr Powell quite blatantly associated himself with the project of the protesters.  I shall act in accordance with the applicant’s proposal. 

Conduct at the eastern compound, and on the bridge, in the period 14-16 April 2009

214               The applicant proposed that the events to which I have referred at paras 129‑133 above should be treated as a single course of conduct, and submitted that, by their involvement in those events, the CFMEU and Messrs Powell and Stephenson contravened ss 43 and 44 of the BCII Act.  I accept the applicant’s submission with respect to 14 and 15, but not 16, April 2009.  The obvious intent of Messrs Powell and Stephenson, who represented the protesters on 14 April 2009, was to prevent John Holland carrying out any productive work, and to prevent the workers, to whose presence they objected, from working in the employment for which they had been engaged.  On that day, the attempt was successful: the protesters effectively had control of Sardine Street, and John Holland yielded to the reality of the situation by opting not to bring workers on to the Eastern compound. 

215               The intent of the protesters, and of Mr Powell who again represented them, on 15 April 2009, was the same.  However, on this occasion, the police were present in sufficient numbers, and had made sufficient logistical preparations, to ensure that the protesters did not achieve their objective.  Having been brought into the eastern compound by way of the back entrance, the workers secured their exit, at the appointed time, through the Sardine Street entrance, and thence along Lorimer Street, under police protection.  It needs hardly to be observed that the necessity for police to be present in such numbers, simply to secure the physical means by which these workers could be moved between work sites, strongly bespeaks the readiness of Mr Powell, and the protesters with whom he was associated, to resort to means which were unlawful or illegitimate. 

216               With respect to 16 April 2009, the evidence is not such as to enable me to infer that the protesters on the aprons of the bridge did resort – or would, in the absence of the police, have resorted – to unlawful or illegitimate means.  It seems that, in the result, all that happened was much flag-waving and yelling on the side of a public highway, along which the vehicles carrying the John Holland workers passed without impediment.  It is true that the police were present, but the fact is that nothing either unlawful or illegitimate – at least to the extent revealed by the applicant’s submissions – occurred on this occasion.  Notwithstanding that qualification, I take the events of 16 April into account in reaching the conclusion, which I do, that everything which occurred over these three days was either organised or procured by, or at least had the consent or agreement of, both Mr Powell and Mr Stephenson.  I consider that the conduct in question was that of each of them, and of the CFMEU. 

217               The applicant has proposed that penalties $85,000, $12,000 and $12,000 should be imposed upon the CFMEU, Mr Powell and Mr Stephenson, for their respective contraventions of s 43 of the BCII Act over this period.  Corresponding penalties of $25,000, $2,000 and $2,000, respectively, are proposed for the contraventions of s 44.  Notwithstanding the qualification which I have expressed in relation to 16 April, I consider that these penalties are within the range for the conduct to which the applicant refers.  I shall act in accordance with the applicant’s proposal.

Conduct at the eastern compound on 29 April 2009

218               On any view, the events of 29 April 2009 involved serious and determined conduct by each of Mr Powell, Mr Stephenson and the CFMEU to prevent John Holland bringing its workers into the eastern compound, and then to prevent it withdrawing its workers from that compound.  It was only the resourcefulness of John Holland which frustrated the first part of that project.  The second part was undertaken by means which were at least illegitimate.  I stop short of describing the means employed as unlawful only because I have not been addressed by the applicant specifically with respect to the laws – statutory or otherwise – that might have been contravened by the protesters on this occasion.  It is sufficient to point to the fact that the protesters, under the approving eye of Mr Stephenson, erected a substantial barricade to block an entrance gate to the eastern compound, and later gathered on Lorimer Street in such numbers, and by resorting to abuse and ugly gesticulations to such an extent, as must have been highly intimidatory for the John Holland workers who were the targets of those measures. 

219               There was, I infer from the statements made by Mr Edwards to the protesters in Lorimer Street on 29 April, a view within the CFMEU that resort only to verbal abuse and gesticulations was acceptable, and ought not to be regarded as stepping outside the bounds of lawful behaviour.  Whether that view was well-founded with respect to laws other than those with which I am presently concerned is a subject upon which I shall not enter.  However, even at the level of abuse and gesticulations, there is a world of difference between the actions of a single person, or a small group of persons, on the one hand, and an assembly of up to 500 persons, motivated to a single objective, on the other hand.  In the latter situation, the means used to express a point of view do not need to involve physical contact in order to be intimidatory.  That was exactly the situation in Lorimer Street on 29 April 2009.  As I have explained above in these reasons, the bringing together of such a large number of protesters at that time was the conscious doing of organisers employed by the CFMEU, most obviously Mr Powell.  It is as clear as may be from his SMS messages to Messrs Slaven and Lynch on the previous evening that the attendance of large numbers at the eastern compound was regarded as a matter of importance. 

220               Despite the effect which the protesters’ actions obviously would have had on the John Holland workers, it should not be forgotten that the real object of Messrs Powell and Stephenson, and of the CFMEU, was to prevent John Holland from carrying out work on the bridge in the absence of an industrial agreement to which the CFMEU was a party, and to force it to employ those who had previously been engaged by Civil Pacific.  It is as clear as may be that, in the absence of a substantial police presence, the protesters would have physically prevented the egress of any vehicles from the eastern compound.  That Messrs Powell and Stephenson, and the CFMEU, had the intent to coerce John Holland to each of the ends referred to in ss 43 and 44 of the BCII Act is, in my view, the only conclusion available on the evidence. 

221               The applicant proposed that penalties of $85,000, $14,000 and $14,000 should be imposed upon the CFMEU, and upon Messrs Powell and Stephenson, respectively , for their contraventions of s 43 of the BCII Act on 29 April 2009.  Corresponding penalties of $25,000, $3,000 and $3,000, respectively, are proposed for contraventions of s 44.  In my view, the imposition of penalties of this order is amply warranted by the evidence to which I have referred.  I shall act in accordance with the applicant’s proposal.

Disposition of the proceeding

222               I shall impose penalties in accordance with my reasons given above.  For reasons stated at para 165 above, I decline the application for declaratory relief.  Although permanent injunctions were sought in the Amended Application, in his final submissions the applicant did not press for any such remedy and, since the events to which the proceeding relate are now wholly in the past, I agree that no occasion for the imposition of permanent restraints arises.  I shall formally dismiss the claims made by the applicant other than for the imposition of penalties and by way of costs. 

223               The respondents requested that they be allowed 90 days within which to pay the penalties to be imposed in this proceeding.  They requested this lengthy period because of the substantial sums involved.  The applicant proposed that payment should be made within 30 days.  There was no affidavit or other evidence from the respondents in support of their position, and, given the substantial measure of consent involved in the penalties now being imposed, and the period during which my judgment has been reserved, I must assume that the respondents have made such preparations as may be appropriate to make the necessary payments in a timely way.  I shall allow until 10 September 2010.

224               The applicant has applied for costs.  He seeks that the AMWU and Mr Mavromatis pay $50,000, and that the CFMEU and Messrs Powell and Stephenson pay $100,000, by way of costs.  The respondents did not oppose the making of those orders, and they appear to be justified by the result of the proceeding.  I shall make orders in those terms. 

Associate:

Dated:         28 July 2010