FEDERAL COURT OF AUSTRALIA

Australian Building & Construction Commissioner v Construction, Forestry, Mining and Energy Union [2010] FCA 784

FEDERAL COURT OF AUSTRALIA

Australian Building & Construction Commissioner v Construction, Forestry, Mining and Energy Union [2010] FCA 784

CORRIGENDUM

1.                  On page 3 delete the appearances:

Counsel for the First and Second Respondents:Mr JM Nicholas

Counsel for the Third Respondent:                                Ms KA Vernon

Solicitor for the Respondents:                                        Construction, Forestry, Mining and Energy Union

            and replace the appearances with:

Counsel for the First and Second Respondents:             Mr JM Nicholas

Solicitors for the First and Second Respondents:           Construction, Forestry, Mining and Energy Union

Counsel for the Third respondent:                                  Ms KA Vernon

Solicitor for the Third respondent:                                 Mr GS MacLean, MacLean Legal

I certify that the preceding one (1) numbered paragraph is a true copy of the Corrigendum to the Reasons for Judgment herein of the Honourable Justice Barker.

Associate:

Dated:         26 July 2010

FEDERAL COURT OF AUSTRALIA

Australian Building & Construction Commissioner v Construction, Forestry, Mining and Energy Union [2010] FCA 784

CORRIGENDUM

1.      In order 4, the word “of” after the word application, should read “against”.

I certify that the preceding one (1) numbered paragraph is a true copy of the Corrigendum to the Reasons for Judgment herein of the Honourable Justice Barker.

Associate:

Dated:         23 July 2010

THE COURT DECLARES THAT:

1.                  That the industrial action undertaken on 15 July 2009 by building employees engaged on the City Square Project conducted by Brookfield Multiplex Constructions Limited was unlawful industrial action which involved a contravention of s 38 of the BCII Act.

2.                  By his conduct on that day, the third respondent was involved in the contravention within the meaning of s 48(2)(a) and (c) of the BCII Act and by the operation thereof is treated as having himself contravened s 38 of the BCII Act.

3.                  By the operation of s 69(1)(b) of the BCII Act, the conduct of the third respondent is taken also to be the conduct of the first respondent.

and The court orders that:

4.                  The application against the second respondent be dismissed.

5.                  The applicant to file and serve written submissions on the questions of costs and penalty including the second respondent’s costs by 30 July 2010.

6.                  The first and third respondents to file and serve responding submissions by 6 August 2010.

7.                  The second respondent to file and serve submissions on its application for costs by 6 August 2010.

8.                  The matter be listed for hearing on penalty and costs on 10 August 2010 at 11am.

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

enforcement proceeding

1                                             The applicant (ABC Commissioner or Commissioner) brings this proceeding in the Federal Court:

·                    against the third respondent (Mr McDonald) on the ground that on 15 July 2009 he engaged in unlawful industrial action, contrary to s 38 of the Building and Construction Industry Improvement Act 2005 (Cth) (BCII Act); and

·                    against the first and second respondents respectively (CFMEU and CFMEUW) on the basis that the conduct of Mr McDonald is taken to be the conduct of the unions because it was carried out in his capacity as an official of each union, as provided for by s 69(1)(b) of the BCII Act.

2                                             Section 38 of the BCII Act provides that the person must not engage in “unlawful industrial action”.  Such conduct incurs a Grade A civil penalty.

3                                             Chapter 7 of the BCII Act deals with enforcement and Pt 1 deals with contravention of civil penalty provisions.  Section 49(1) enables an “appropriate court” (which under s 48 includes the Federal Court) on an application by an “eligible person” (which under s 49(6)(a) includes the ABC Commissioner) to make orders in relation to a person who has contravened a civil penalty provision that include:

·                    An order imposing a pecuniary penalty on the defendant.

·                    An order requiring the defendant to pay a specified amount to another person as compensation for damage suffered by the other person as the result of the contravention.

4                                             The expression “building industrial action” is defined by s 36 in Ch 5, the chapter that deals with industrial action, to include the meaning:

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

but relevantly does not include:

(g)     action by an employee if:

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

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

Section 36(2) provides that whenever a person seeks to rely on para (g) of this definition that person has the burden of proving that para (g) applies. 

5                                             The activities of “building work” are separately defined by s 5 of the BCII Act and by s 5(1)(a) includes the construction of buildings, structures or works.

6                                             Building industrial action is “unlawful industrial action”, by virtue of s 37, if:

(a)                The action is industrially‑motivated; and

(b)                The action is constitutionally‑connected action; and

(c)                The action is not excluded action.

Each of these expressions is defined by s 36.  That of “industrially‑motivated” is central to this proceeding and is considered below in detail.

agreed facts

7                                             In this proceeding, the following facts are agreed by the parties.

8                                             The Commissioner is a person eligible to bring proceedings for a contravention of a civil penalty provision in the BCII Act pursuant to s 49(6) of the BCII Act.

9                                             The CFMEU is and was at all material times:

(a)    An organisation registered under the Fair Work (Registered Organisations) Act 2009 (Cth) and a body corporate by reason of s 27 of that Act able to be sued in its registered name;

(b)   A building association within the meaning of that term in s 4(1) of the BCII Act; and

(c)    An industrial association within the meaning of that term in s 4(1) of the BCII Act.

10                                          The CFMEUW is and was at all material times:

(a)    An industrial organisation registered pursuant to the Industrial Relations Act 1979 (WA); and

(b)   Pursuant to s 60 of that Act, a body corporate able to be sued in its registered name.

11                                          Mr McDonald is and was at all material times an employee and officer of CFMEU and CFMEUW, holding the positions of Assistant State Secretary of the Construction and General Division, Western Australian Divisional Branch of the CFMEU, and Assistant Secretary of the CFMEUW.

12                                          At all material times, Brookfield Multiplex Constructions Pty Ltd (BMC) was a “constitutional corporation” within the meaning of that term in s 4(1) of the BCII Act engaged in the business of building and construction.

13                                          At material times leading up to 15 July 2009, BMC was engaged to perform building and construction work at the City Square Project site at 125 – 137 St Georges Terrace Perth, Western Australia – in the central business district.

14                                          On 15 July 2009 employees scheduled to work on the City Square Project were contracted to perform building work in accordance with the definition of building work in s 5 of the BCII Act.

15                                          The terms and conditions of employment of those employees scheduled to work on the City Square Project at material times were prescribed by one or more industrial instruments within the meaning of s 4 of the BCII Act.  (Specifically, the industrial instruments were the Brookfield Multiplex Limited and the CFMEU (WA) Union Collective Agreement 2008 – 2011 (exhibit 1) and, prior to that, the Multiplex Limited and the CFMEU Building and Construction Industry Enterprise Agreement 2005 – 2008 (exhibit 2).

16                                          On 15 July 2009 following a meeting of employees at about 7am, the employees left the City Square Project site and failed to perform work at the site for the remainder of that day.

17                                          No employee employed to perform building work at the City Square Project was authorised or given agreement in advance and in writing by his or her employer to stop work by leaving the City Square Project at about 7am on 15 July 2009.

18                                          The action of employees leaving the City Square Project site and failing to perform work at that site for the remainder of the day on 15 July 2009:

(a)    adversely affected a constitutional corporation in its capacity as a building industry participant; and

(b)   related to work that was regulated by a Commonwealth industrial instrument.

Outline of the ABC Commissioner’s case upon opening

19                                          The ABC Commissioner opened the case against the respondents on the following basis.

20                                          The ABC Commissioner alleged that at material times on 15 July 2009 construction was being undertaken at the City Square Project building site in Perth by BMC, as head contractor.

21                                          The unlawful industrial action alleged involved workers on the site taking  industrial action by going on strike without notice, leaving the building site early on Wednesday 15 July 2009 and not returning to work that day.

22                                          The ABC Commissioner alleged the decision to take industrial action was taken at a meeting of workers, which took place at about 7am on 15 July 2009.  The Commissioner alleged Mr McDonald spoke at the meeting and urged those present to vote on a motion to go on strike.  The initial vote was below 50% so a second vote was taken which apparently secured majority support.  The workers at the meeting then left the site for the day.

23                                          The Commissioner said that the reason for this industrial action related to one of sixteen subcontractors on the site, known as Form 700, being regarded as not having made a sufficient commitment to safety.  This insufficiency of commitment was considered to be demonstrated by a representative of Form 700 declining to sign an agreement relating to safety upon the spot and without legal advice the day before, 14 July 2009.

24                                          The request to sign the agreement was made by BMC’s project manager for the City Square Project site at a meeting the previous afternoon, 14 July 2009, when representatives of all subcontractors, apart from Form 700 signed the agreement.

25                                          The agreement that subcontractors were asked to sign was on a single page with the following words and table into which details were to be handwritten:

We the undersigned hereby agree to undertake responsibility for following our on‑site Occupational and Health Safety Procedures and compliance with the Occupational Health & Safety Act, Regulations, Codes of Practice and Australian Standards.

26                                          A copy of the agreement was signed by Form 700 on 15 July 2009 and the workers resumed work on 16 July 2009, following a meeting on site.  The Commissioner said there was no advance notice of this industrial action.

27                                          The Commissioner said that the industrial action taken was “building industrial action” because it fell within para (d) of the definition of the term in s 36(1) as it entailed 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 attended for building work”, and in all the circumstances none of the exclusions, particularly para (g), applied.

28                                          The Commissioner said that the industrial action so taken was “industrially‑motivated” as defined by s 36(1), because it fell within paras (a) and (d) of that definition as a motivation for the strike included the purposes of “supporting or advancing claims against an employer in respect of the employment of that employer” and “disrupting the performance of work”.

29                                          The Commissioner further submitted that the industrial action was “constitutionally‑connected action” because it fell within paras (b) and (d) of the definition in s 36, in that it was action which “adversely affects a constitutional corporation in its capacity as a building industry participant” and “relates to work that is regulated by a Commonwealth industrial instrument”.

30                                          Finally, the Commissioner said that the action was not “excluded action” because the requirement for three days notice in s 414 of the Fair Work Act 2009 (Cth) was not given nor were many of the other criteria for the action taken to be “protected industrial action” met either.

31                                          The Commissioner considered on opening the case that the key question for determination by the Court appeared to be whether the respondents would be able to discharge the burden of proving that para (g) of the definition of “building industrial action” applied in the circumstances of the case.

32                                          The ABC Commissioner contended that if the Court were to find that the action was unlawful industrial action, then Mr McDonald should be treated as having contravened s 38 because he did one or more of the following accessorial acts by his role at the meeting at which the vote to strike was taken, as provided for by s 48(2) of the BCII Act, namely:

·                    he aided, abetted, counselled or procured the contravention; or

·                    he induced the contravention; or

·                    he was knowingly concerned in or a party to the contravention.

33                                          The ABC Commissioner finally said that the conduct of Mr McDonald is to be taken as the conduct of the unions because it was carried out in his capacity as an official of the unions, as provided for by s 69(1)(b) of the BCII Act.

respondents’ positions at close of abc commissioner’s case

34                                          Following the closure of the Commissioner’s case, the respondents (more properly called “defendants” having regard to the terms of s 49(1) of the BCII Act) elected not to call any evidence and indicated through counsel that there would be no submission that the action in question did not constitute “building industrial action” because it satisfied the criteria set out in s 36(1)(g).  That is to say, there would be no submission that the action was based on a reasonable concern by an employee about an “imminent risk” to his or her health or safety.

35                                          Instead, the respondents submitted the Commissioner’s case was not made out, for the following outlined reasons:

·                    The ABC Commissioner had failed to prove that the action constituted “building industrial action” in that there is no evidence that it was “industrially motivated”.

·                    If, however, the action is found to be unlawful industrial action, the Commissioner had failed to prove that Mr McDonald was “involved in” that action within the meaning of s 48(2) of the BCII Act, in that there is no evidence that he was linked in purpose with the contravening conduct or participated or assented to the contravention.

·                    Finally, because Mr McDonald is not liable the unions could not be liable under s 69(1)(b) of the BCII Act.  In any event, the ABC Commissioner had failed to adduce any evidence that Mr McDonald was “acting in a capacity of officer or agent” of the unions at material times. 

issues

36                                          In light of the respondents’ position, the parties agree the following issues must be determined:

·                    Whether the applicant has proved that the action was “industrially motivated” as defined in s 36(1)(a) or (d) of the BCII Act.   If not, then the action cannot constitute “unlawful industrial action” for the purposes of s 38.

·                    If the motion does constitute “unlawful industrial action”, whether the Commissioner has proved that Mr McDonald was involved in the contravention in a way that falls within s 48(2) of the BCII Act, so as to require him to be treated as having contravened s 38.

·                    If Mr McDonald’s contravention is so established, whether the Commissioner has proved that the conduct of Mr McDonald was in his capacity as an officer, agent or employee of the unions so that it is taken to be the conduct of the unions (or either of them) pursuant to s 69(1)(b) of the BCII Act.

approach to the fact finding task

37                                          Two broad issues arise concerning the Court’s approach to the fact finding task in this case, both of which have been the subject of submissions and emphasis by the parties.  The reason for the parties’ emphasis of these issues arises essentially from the fact that, following the close of the Commissioner’s case, the third respondent, Mr McDonald, chose not to give evidence and the respondents chose not to put on any evidence in response to the case brought against them.

38                                          The first issue goes to the standard of proof and the application of the approach to the finding of the facts.  The relevant standard of proof is the civil standard, this being a civil proceeding, albeit one for a civil penalty.  Given the nature of the proceedings and that findings of contravention of a provision such as s 38 of the BCII Act may result in the imposition of a civil pecuniary penalty on each of the respondents, in finding facts the Court usually applies what is called the Briginshaw approach: see Briginshaw v Briginshaw (1939) 60 CLR 336; [1938] HCA 34.  In Neate Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449 at 449 - 450, Mason CJ, Brennan, Deane and Gaudron JJ explained this approach in the following way:

The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud.[footnote omitted] On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear [footnote omitted] or cogent [footnote omitted] or strict [footnote omitted] proof is necessary ‘where so serious a matter as fraud is to be found’.[footnote omitted] Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct [footnote omitted] and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct.

39                                          In Briginshaw, Dixon J, at 361 – 362, emphasised that when the law requires the proof of any facts, the Court must feel an “actual persuasion of its occurrence or existence” before it can be found.  His Honour confirmed that it is enough that the affirmative of an allegation is made out “to the reasonable satisfaction” of a court, but added that reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequences of the fact or facts to be proved.  His Honour stated that “reasonable satisfaction” should not be produced by “inexact proofs, indefinite testimony or indirect inferences”.

40                                          The Briginshaw approach explained by this dicta is relevant to the fact finding exercise in this instance.

41                                          The second issue concerns the question of inferences to be drawn from facts proved.  The ABC Commissioner is particularly concerned about the approach to be taken in this regard because of the decision of the respondents not to call evidence.  The respondents are equally concerned to ensure that any gaps in the evidence are not filled by inferences impermissibly drawn.

42                                          So far as inferences are concerned, in Holloway v McFeeters (1956) 94 CLR 470 (Holloway), Williams, Webb and Taylor JJ, in a joint judgment, at 480, note that inferences from actual facts that are proved are just as much part of the evidence as those facts themselves.  Their Honours referred, at 480 – 481, to the decision of the High Court in Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1 (Bradshaw) which made the following points (by reference to authority), at 217 ALR 5:

·                    In a civil cause, you need only circumstances raising a more probable inference in favour of what is alleged.

·                    Where direct proof is not available it is enough if the circumstances appearing in evidence give rise to a reasonable and definite inference.

·                    They must do more than give risk to conflicting inferences of equal degree of probability so that the choice between them is (no) mere matter of conjecture.

43                                          In Bradshaw,  the Court stated that, all that is necessary is that according to the course of common experience the more probable inference from the circumstances that sufficiently appear by evidence or admission, left unexplained, should be that the injury in issue in that case arose from the defendant’s negligence.  By “more probable” is meant no more than that upon a balance of probabilities, such that an inference might reasonably be considered to have some greater degree of likelihood. 

44                                          Notwithstanding the apparent simplicity with which the principles by which facts may be inferred in a given case may be stated, the application of these principles does not always lead to easy outcomes.  In Holloway, the joint judgment found that it was reasonably open to the jury to find that the death of the deceased was caused wholly or in part by the negligence of the driver of an unidentified vehicle and so the plaintiff succeeded.  However, Dixon CJ and Kitto J dissented concerning the sufficiency of the evidence.  In Luxton v Vines (1952) 85 CLR 352 in a very similar fact situation to those in Holloway, the High Court held, again by a 3-2 majority that the plaintiff’s claim failed.  In Jones v Dunkel (1958) 101 CLR 298; [1959] HCA 8, the High Court again divided 3-2 on the question of the sufficiency of the plaintiff’s case in favour of the plaintiff.

45                                          In circumstances where some of the facts essential to an applicant’s case are peculiarly within the knowledge of the respondent party, and the respondent party fails to give evidence about them, courts have been more willing to draw available inferences.  In this regard in DeGioia v Darling Island Stevedoring and Alighteridge Co Ltd (1941) 42 SR (NSW) 1 at 4, Jordan CJ observed:

Some of the facts essential to the plaintiff’s case are peculiarly within the knowledge of the defendant, and it is in the nature of things, difficult for the plaintiff to produce evidence of them.  Such a state of things does not absolve the plaintiff from adducing some evidence of those facts; but where it exists it is legitimate for the trial judge to hold the very slight evidence pointing to their existence may be treated as sufficient to justify a jury in holding that they do exist if, but only if, there is no explanation of that evidence by the defendant.

46                                          In Jones v Dunkel the majority of the Court (Kitto, Menzies and Windeyer JJ, Dixon CJ and Taylor J expressing no opinion) held (as summarised in the headnote) that the jury in a negligence action should have been told that any inference favourable to the plaintiff for which there was ground in the evidence might be more confidently drawn when a person presumably able to put the true complexion on the facts relied upon as the ground for the inferences is not called as a witness by the defendant and the evidence provides no sufficient explanation of his or her absence: see, for example, Windeyer J at 320 – 321.

47                                          It is often suggested that the finer points of the “rule” in Jones v Dunkel are not well understood.  Cross on Evidence (8^th Australian Ed, 2010) by JD Heydon says there are at least nine.  I adopt the learned author’s convenient summary of four of those points (without reciting underlying authority) that are relevant to this proceeding:

•        The unexplained failure by a party to give evidence, to call witnesses or to tender documents or other evidence or produce particular material to an expert witness may (not must) in appropriate circumstances lead to an inference that the uncalled evidence or missing material would not have assisted that party’s case: Cross on Evidence at [1215],  p 40.

•        While the rule in Jones v Dunkel permits an inference that the untendered evidence would not have helped the party who failed to tender it, and entitles the trier of fact to take that into account in deciding whether to accept any particular evidence which relates to a matter on which the absent witness could have spoken, and the more readily to draw any inference fairly to be drawn from the other evidence by reason of the opponent being able to prove the contrary had the party chosen to give or call evidence, the rule does not permit an inference that the untendered evidence would in fact have been damaging to the party not tendering it.  The rule cannot be employed to fill gaps in the evidence, or to convert conjecture and suspicion into inference.  Nor does the rule prevent any inference favourable to the party who has failed to call the witness being drawn: other evidence may justify the drawing of the inference: Cross on Evidence at [1215], p 42.

•        The rule only applies where a party is required to explain or contradict something.  What a party is required to explain or contradict depends on the issues in the case as thrown up in the pleadings or by the course of evidence in the case.  No inference can be drawn unless evidence is given of facts requiring an answer.  If there is no issue between the parties on a matter, there is nothing to answer.  If there is an issue between them but the party bearing the burden of proof has tendered no evidence of it, the opponent is not required to answer: Cross on Evidence at [1215], p 42.

•        The most difficult aspect of the rule turns on the failure to call non‑party witnesses.  It is easy to apply the principle where it is the party who fails to give evidence.  But the rule cannot be applied to the non‑calling of the witness unless it would be natural for the party to call the witness or the party might reasonably be expected to call a witness, or a missing witness would be expected to be called by one party rather than another: Cross on Evidence at [1215], p 43 – 44.

48                                          In Weissensteiner v The Queen (1993) 178 CLR 217; [1993] HCA 65, a criminal case that concerned the entitlement of a judge to make a comment to a jury about the significance of the failure of an accused to give evidence, the question was touched upon as to the effect the failure to give evidence may have on the drawing of an inference.  Mason CJ, Deane and Dawson JJ in joint judgment, at 227 ‑ 228, cited authority in order to show that it has never really been doubted that when a party to litigation:

fails to accept an opportunity to place before the court evidence of facts within his or her knowledge which, if they exist at all, would explain or contradict the evidence against that party, the court may more readily accept that evidence.  It is not just because uncontradicted evidence is easier or safer to accept than contradicted evidence.  That is almost a truism.  It is because doubts about the reliability of witnesses or about the inferences to be drawn from the evidence may be more readily discounted in the absence of contradictory evidence from a party who might be expected to give or call it.  In particular, in a criminal trial, hypotheses consistent with innocence may cease to be rational or reasonable in the absence of evidence to support them when that evidence, if it exists at all, must be within the knowledge of the accused.

To similar effect, see Brennan and Toohey JJ, at 236, and Gaudron and McHugh JJ, at 244 ‑ 245.

49                                          These rules, points, cautions and observations are relevant to the fact finding exercise I must now perform.

events of 14, 15 and 16 july 2009

50                                          In addition to the agreed facts, evidence was given by witnesses called by the Commissioner of the events on 14, 15 and 16 July 2009 that are relevant to the Commissioner’s case.  I will recount them before turning to the determination of each of the issues.  As noted above, the respondents closed their cases without calling evidence.

51                                          At 1pm on 14 July 2009 a meeting was held on the site of the City Square Project to discuss safety issues raised by Mr Peter Delaney, who had at that time recently resigned as site safety representative.  The meeting had been called by Mr Tim O’Neill, BMC’s project manager for the site.  Representatives of BMC’s sub contractors were in attendance.  The issues to be addressed were set out on a list entitled “Safety issues to be addressed”.  While prepared by Mr O’Neill, the issues were drawn from a document prepared earlier by Mr Delaney.  There is no dispute about these facts.    

52                                          At the meeting of 14 July, Mr Delaney spoke to safety issues.  Mr O’Neill then sought written commitments from subcontractors to safety on the site.  The representatives of all of the subcontractors provided their written commitment, save and except the representative of Form 700 Pty Ltd.  Mr O’Neill said the representative of Form 700 told the meeting that he would have to check with his bosses and that legally he could not sign something like that.  Mr O’Neill says he was told during the meeting that Form 700 wished to obtain legal advice prior to signing the commitment.  Form 700 eventually signed the commitment at 1pm the following day, 15 July.  There is no dispute about these facts.

53                                          Mr O’Neill identified in his evidence the “Safety issues to be addressed” document as that which appeared at pages 27 and 28 of his affidavit sworn 17 December 2009 (exhibit 4).  He confirmed (transcript, 41) that the document was substantially based on information that had come from Mr Delaney as the site safety representative.  It is unnecessary presently to go into the detail of this document but the items of safety to be addressed included such things as: the jump form concrete pour organisation in normal daylight hours; lighting to be established on jump form in the event of a late pour; steel erection; Bondek; access to stairs and hoist; car surfing; working outside handrails; loading bays; drop stripping; inadequate hand railing; rescue training; rubble at the bottom of access ladders; unsafe access to lobbies.  A footnote stated that:

There needs to be an overall improvement in our commitment to OSH by all parties involved in this project.  Many of the above problems are minimum standards as required under the legislation, and are covered in the contract or safety plans, which must be followed and properly supervised.

The document concluded with the statement that:

There must also be a meeting of all BMX, and contractor’s supervisors to highlight these ongoing OSH problems and a commitment from all present to ensure there are no reoccurrences in the future.

54                                          Mr O’Neill (in cross‑examination at transcript, 57) confirmed that the meeting of 14 July 2009 had been prompted by the fact that Peter Delaney had, at that point, recently resigned as site safety representative.  Mr O’Neill further stated (transcript, 58) that the meeting was held to address safety issues with a view to getting Mr Delaney “back on board as a health and safety rep.  That was the whole purpose of the meeting.”.  I find this to be so.

55                                          In the course of cross‑examination counsel for Mr McDonald sought to highlight the relationship between the number of the safety problems listed and discussed at the meeting on 14 July, and Form 700.  Counsel took Mr O’Neill through a number of earlier reports concerning performance on the project that were attached to Mr O’Neill’s second affidavit of 29 March 2010 (exhibit 5).  By reference to a report dated 23 June 2009, Mr O’Neill acknowledged that, based on that report, Form 700 were identified as having the highest number of LTIs, or lost time injuries, on site. 

56                                          Mr O’Neill also confirmed in cross‑examination (transcript, 74) that he told the meeting that Mr Delaney would come back on board as long as the items on the list were fixed.  He confirmed that he was looking for “an improvement”. 

57                                          Mr O’Neill stated that the next day, 15 July 2009, at 6.30am he attended the City Square Project smoko sheds (or crib area) which were located on the access area and saw Mr McDonald there.  He told Mr McDonald that he was not allowed on site and that he should leave the site.  Mr McDonald did not leave the site upon being directed by him to do so. 

58                                          In cross‑examination (transcript, 47), Mr O’Neill agreed that he did not then ask Mr McDonald why he was at the City Square Project site that day.  Nor did Mr McDonald tell him that he was there to conduct a meeting of workers.  He also agreed that he did not know at that point in time that there was going to be a meeting of workers that morning at 7am. 

59                                          Mr O’Neill explained, in both his evidence in chief and in cros­s‑examination (transcript, 47), that after he spoke to Mr McDonald he was advised by Mr Ian Hawkins, the site shop steward for the unions, that Mr McDonald was going to be having a meeting on site at 7am.  I accept Mr O’Neill was told about a meeting.  I leave aside for the moment the question whether he was told it was, in effect, to be “McDonald’s meeting”.

60                                          Despite Mr Hawkins’ advice, Mr O’Neill did not observe or attend the meeting, which was in fact held at about 7am. 

61                                          However, at approximately 7.15am Mr O’Neill says (exhibit 4, [39]) he was told by Mr Kim Young (the Employee Relations Manager for BMC) that all workers on the City Square Project had voted to go on strike for 24 hours and had left the site “following a meeting that Mr McDonald conducted”.  This hearsay evidence was received on the basis that it was not evidence of the truth of what was said but of what was conveyed to the witness.  I accept Mr O’Neill was told about the strike by Mr Young.  I leave aside for the moment the question whether he was told it was “McDonald’s meeting”.

62                                          Mr O’Neill confirmed that he did not authorise Mr McDonald to hold any meeting on 15 July or for any worker to leave work that day.  I accept this was so.  It is also an agreed fact.

63                                          The workers then left the City Square Project.  Shortly after doing so at about 7.30am, Mr O’Neill said he, Mr Young and Mr Jovan Bacovic (the senior site manager) met with Mr McDonald and Mr Hawkins at the site entrance gate at Mounts Bay Road.  He says the following exchanges occurred:

Mr O’Neill:               “Joe, [a reference to Mr McDonald] you need to leave site, you’re not supposed to be here.  You’ve taken unlawful industrial action.”

Mr Hawkins:             “It was the workers who voted to leave the Site because of safety.”

Mr McDonald:          “The guys were pissed off about the safety issues.  Rumour has it that Tim O’Neill said this was one of the worst sites for safety that he has worked on.”

Mr O’Neill:               “I said nothing of the sort.  What I did actually say was that our LTI’s (Lost Time Injuries) were quite high in relation to the industry average.  It’s just a statistical thing.”

Mr Bacovic:              “Will the guys be back at work tomorrow?”

Mr McDonald:          “There will be another meeting at 7.00am to see if the commitment to safety had been given.”

64                                          Generally speaking, I accept Mr O’Neill’s account of events I have just set out.  I turn now to the particular question of what Mr Hawkins and later Mr Young all alleged to have said to Mr O’Neill concerning the meeting being Mr McDonald’s.

65                                          In cross‑examination, counsel for Mr McDonald put it to Mr O’Neill that Mr Hawkins had not told him that it was Mr McDonald who would be conducting the meeting of workers on site at 7am on 15 July 2009.  The following exchange occurred (transcript, 48):

Isn't it the case, Mr O Neill, that Mr Hawkins didn't tell you that Mr McDonald was

there to conduct a meeting on site of the workers at 7 o clock, did he?---No, he did

not tell me that.

66                                          After counsel for Mr McDonald reminded Mr O’Neill that he had made a contemporaneous note of the events as they occurred on 15 July 2009 (attachment TO–7 to exhibit 4), Mr O’Neill agreed it would be reasonable to consider that the file note would be a more accurate recollection of what occurred or was said than what was later put into his affidavits. 

67                                          The following further exchange then took place between counsel for Mr McDonald and Mr O’Neill (transcript, 48):

All right. Now, on the morning of 15 July 2009 when Mr Hawkins spoke to you, he

didn't tell you that the CFMEU was holding a meeting of workers at the site at

7 o clock, did he?---He did not say the CFMEU were holding a meeting; that’s

correct.

68                                          Later, Mr O’Neill was taken in cross‑examination to his statement made to the office of the Building and Construction Commissioner on 16 December 2009 (exhibit 5, annexure TJO–1) wherein at [19] Mr O’Neill had stated that generally Mr Hawkins would notify him or Mr Bacovic, the Senior Site Manager, if the CFMEU wanted to hold a meeting on the site for a specific date, and usually they would agree to the meetings, when it was a request from their own employees.  In cross‑examination Mr O’Neill confirmed that he did not tell Mr Hawkins that morning that the meeting could not go ahead.

69                                          Mr O’Neill was then challenged in cross‑examination concerning whether Mr Young had told him that the workers had left the site following a meeting that “Mr McDonald had conducted”.  Mr O’Neill appeared to concede the point by answering (transcript, 50): “No, he did not”.

70                                          Counsel then asked Mr O’Neill in light of this response why he had stated in his affidavit of 17 December 2009 (exhibit 4, at [39]) that Mr Young had told him that all workers on the City Square Project had voted to go on strike for 24 hours and had left the site, “following a meeting that Mr McDonald had conducted”.  Mr O’Neill responded (transcript, 50): “Obviously this is what I thought at the time”.

71                                          When pressed as to what his position was, Mr O’Neill thought that “quite possibly” the statement in [39] of exhibit 4 was more accurate than the answer he had just given (transcript, 50).

72                                          Counsel for Mr McDonald then took Mr O’Neill to the note he had made much closer to the time of the events of 15 July 2009 (TO-7 to exhibit 4).  Mr O’Neill confirmed that this was a reasonably contemporaneous note made a few hours after the events on 15 July 2009.  Mr O’Neill agreed (transcript, 51) that nothing in the note said that Mr Young had told him that the workers had left the site “following a meeting conducted by Mr McDonald”.

73                                          By way of explanation of the apparent inconsistency Mr O’Neill stated (transcript, 51) that:

I have a recollection that he did. The file note is an industrial report that’s sent to head office. It wouldn’t exactly clarify everything that happened on that particular morning. It’s a quick file note that’s used as an industrial report to our head office.

74                                          Mr O’Neill, following further cross‑examination, said (transcript, 52) that:

With retrospection, the affidavit would be more accurate, I suppose, to a file note that is sent as a quick note to head office that we’ve had an industrial issue on site.

75                                          Counsel for Mr McDonald in closing submissions invited the Court to find that Mr O’Neill’s evidence that he was told by Mr Hawkins that “McDonald was going to be having a meeting” on site at 7am on 15 July 2009, and that Mr Young later reported to him that the workers had gone on strike “following a meeting conducted by Mr McDonald”, did not bear the “ring of truth” and ought to be rejected.

76                                          On behalf of the Commissioner it is submitted that although Mr O’Neill’s prior statement did not refer to Mr McDonald and nor did his notes, Mr O’Neill adhered to the account provided in his affidavit during cross‑examination.  Counsel submits it was not at any time suggested to Mr O’Neill that he was not telling the truth and he gave a credible explanation for the difference and maintained his position despite the contrary proposition being put to him on numerous occasions.  Further, Mr Hawkins was not called to contradict the account.  Counsel submits that the inference should be drawn and Mr O’Neill’s evidence in this respect more readily accepted, especially as it transpires that Mr McDonald did speak at the meeting and at least conducted part of the meeting at which the vote was taken.

77                                          Counsel therefore submits on behalf of the Commissioner that the ordinary inference to be drawn is that Mr McDonald was, as Mr Hawkins said to Mr O’Neill, intending to conduct such a meeting and even the lesser inference to participate in it, and that this was to be done in his capacity as a senior union official from the unions.  It is further submitted that the inference can more comfortably be drawn in the absence of evidence from Mr McDonald who was present in court throughout the hearing to rebut it.

78                                          In the contemporaneous note of the events of 15 July, it is clear that Mr O’Neill did not expressly note anything that suggested Mr McDonald was to convene or conduct a meeting.  It may be that Mr O’Neill assumed as much from observing initially the presence of Mr McDonald near the crib shed and soon after learning from Mr Hawkins there was to be a meeting on site at 7am.  But in light of Mr O’Neill’s concession in cross‑examination that he was not told expressly by Mr Hawkins that Mr McDonald was conducting the meeting and was not told expressly that the CFMEU was conducting the meeting, I entertain real doubt that what is recounted in [38] of exhibit 4 is precisely what Mr Hawkins conveyed to Mr O’Neill on the morning of 15 July 2009.  Similarly I have real doubts that what is recorded in [39] of exhibit 4 constitutes precisely what Mr Young said after the meeting when he spoke with Mr O’Neill.   In the event, I am not satisfied that Mr O’Neill was informed by Mr Hawkins before 7am that, in substance, “Mr McDonald was to hold the meeting” or that after the meeting he was told by Mr Young, in substance, about the meeting “Mr McDonald had conducted”.   Whether or not the meeting was in effect called and conducted by Mr McDonald, and the extent of his involvement in the 7am meeting, needs to be assessed in any event by reference to the more direct evidence touching on these issues led by the Commissioner.

79                                          In this regard, the meeting which Mr O’Neill advised was to take place at about 7am, was not attended by Mr O’Neill and so he did not observe or hear what occurred at it, at least in a first hand way.  Others did.  Mr Gordon McRae, a construction manager employed by one of the subcontractors on site, arrived at the site at about 6.30am on 15 July.  By reference to the evidence that Mr McRae gave to the Deputy Commissioner during an examination under the BCII Act on 17 December 2009 (BCII transcript), which was received into evidence in these proceedings (following agreement between the parties) as part of his primary evidence, Mr McRae explained that he could not recall from whom he found out about the meeting but he found out by word of mouth that it was about to start at the time he was advised of it.  Because of what had happened the previous day on 14 July at the sub‑contractors’ meeting with Mr O’Neill, it appears that Mr McRae was interested to observe the meeting, although he said he did not normally attend site meetings.  From where he was he walked down the stairs and across to the ramp and “just stood there where everyone else stood”.  On a plan (exhibit 10) he marked with a cross the approximate location of where he stood at around 7.10am.  Mr McRae explained that once he was in this position, he came to understand that the meeting related to the meeting of the day before (BCII transcript, 45).  Mr McRae indicated that a number of people from his organisation attended the meeting (BCII transcript, 46).  There were more than 200 people at the meeting.  When at the site of the meeting, he said that he recognised Mr McDonald – as a union representative.  He was aware of what Mr McDonald looked like from his media profile (BCII transcript, 47).  However, prior to walking down to the meeting he did not know that Mr McDonald was going to be at the meeting.  On the same plan Mr McRae made a note of where Mr McDonald was standing.  He was standing near Mr Delaney, whose position he also marked, which was quite near to Mr McDonald.  Mr McRae was standing at the back of the meeting some 20 – 25 m from where Mr McDonald and Mr Delaney were.

80                                          Mr McRae explained that the meeting was “called together” by Mr Delaney.  Mr Delaney did not introduce Mr McDonald.  Mr Delaney addressed the meeting.  Mr McRae believed that what Mr Delaney said was – to quote directly from the transcript of the examination (BCII transcript, 50):

Something along the lines of, ‘This has been called regarding the’, the, I suppose ‘the non‑commitment from Form 700,’ but I can’t remember if that was Peter, or if, there was about four gentlemen spoke.

81                                          He recalled that another person who spoke was “Alan”.  No‑one introduced Mr McDonald but he believes he “spoke briefly”, but it was “very muffled from where we were”.  Mr McRae did not recall any “full sentences, exact words” or anything like that.  The substance of what he said was reported by Mr McRae as follows (BCII transcript, 51):

Only at the end of the meeting that Joe actually spoke – after a motion was put on the floor and a show of hands went up and it wasn’t favourable.  Joe basically, not that I recall exactly what was said cos we were very far away but ‘stand up for yourselves’, I take it was the basis of what he had said.

Later (BCII transcript, 57) Mr McRae described Mr McDonald’s words as “angry”.

82                                          Mr McRae confirmed that Mr Delaney had spoken about safety as did a couple of other people, although it was difficult for him to hear what was going on from 20 – 25 m away (BCII transcript, 51).  He recalled hearing one of the gentlemen saying that Form 700 were “working unsafe”. 

83                                          Mr McRae did not hear a call for a resolution but assumed there was one because hands “went up” (BCII transcript 52).  He did not hear what the resolution was and he did not hear it seconded.

84                                          Mr McRae (BCII transcript, 53) said that there were no papers handed around at the meeting, no whiteboards or demonstrations and no safety equipment exposed.  If there was any particular practice of Form 700 referred to, he did not hear it. 

85                                          Mr McRae said that there was a first show of hands and only about 30% voted for the resolution.  At this point, Mr McRae said (BCII transcript, 54) of Mr McDonald:

He raised his voice and, again, being that far away, it was along, the substance was along the lines of ‘stand up for yourselves’.

86                                          Mr McRae said (BCII transcript, 54) that Mr McDonald did not say anything in particular about what the workers should do.  Nor did he ask the workers for a resolution.

87                                          Mr McRae came to understand that the “gist” of the show of hands, filtering down from employees, was that the workers were walking off the job (BCII transcript, 54).

88                                          Mr McRae, when pressed as to whether Mr McDonald reacted to the proposal, said “No”.  He also said (BCII transcript, 54 – 55) Mr McDonald did not say words about the need for the proposal.

89                                          However, when pressed (BCII transcript, 55), he believed that Mr McDonald said something about a walk‑off “would be looked at or noticed”.  The substance of what he said was “that this will be looked at”.  But Mr McDonald did not refer to by whom it would be looked at.  Mr McRae assumed this meant that the resolution would be looked at by the ABCC – a reference to the office of the Commissioner.

90                                          Counsel for the respondents did not cross‑examine Mr McRae as to his evidence.

91                                          I accept Mr McRae’s evidence although the use to be made of aspects of it is subject to challenge and is discussed below.

92                                          Mr Young, the Employee Relations Manager for BMC was called.  His affidavits made 17 December 2009, 16 February 2010 and 26 March 2010 were formally read (exhibits 6, 7 and 8 – save for portions not admitted following rulings on evidence).  Mr Young has worked in the construction industry for many years and at material times had numerous dealings with Mr McDonald, who he knew to be the Assistant State Secretary of the CFMEU. 

93                                          Mr Young was present at the 14 July 2009 meeting where Mr O’Neill and Mr Delaney had met with representatives of all sub‑contractors on the City Square Project.  On 15 July 2009, Mr Young arrived at the City Square Project at just after 7am.  He stated (exhibit 6, [28] ‑ [31]) that when he arrived:

I saw and heard McDonald addressing a meeting of all workers who were required to be working on the City Square Project.  I also saw McDonald gesturing to the meeting and following this, I saw a show of hands. 

I observed McDonald to be standing on the Access Area while he was addressing the meeting and those present at the meeting spread from the City Square project site to the Access Area.  The meeting blocked all access for delivery trucks to the City Square Project.

Following the meeting on 15 July 2009, I observed all workers (other than direct Brookfield Multiplex staff) from the City Square Project of which there were approximately 140, leave the site at approximately 7.10am and not return until 16 July 2009.

I was not aware of any imminent risk to any employee’s health or safety present at the City Square project on 14 July 2009.

94                                          In cross‑examination, Mr Young confirmed that the meeting was in progress when he arrived on 15 July in the access area (transcript, 80).

95                                          Mr Young also confirmed that he did not know first hand who had called the meeting – “only by what I’d been informed” (transcript, 81).

96                                          Mr Young also agreed that he did not know what Mr McDonald was gesturing about when he observed him gesturing to the meeting (transcript, 81).

97                                          Similarly, he did not know what the show of hands was for at the time he observed it at the meeting, and that was because he could not hear what was being said at the meeting (transcript, 81). 

98                                          He also agreed that he did not “get to observe very much of the meeting” (transcript, 81).

99                                          Nor did he hear what it was that the workers were saying at the meeting (transcript, 81).  However, Mr Young did observe the workers voting and understood from others what had transpired at the meeting as they were walking up the ramp after the meeting.  He was told by those attending the meeting that they had had a vote because Form 700 had refused to sign a commitment on health and safety.  Mr Young agreed that he did not put that information in any of the affidavits that he had made that had been formally read in the Court.

100                                       I accept Mr Young’s evidence though, as in the case of Mr McRae, the use to be made of it is subject to challenge and is discussed below.

101                                       As noted above, there was a meeting involving Mr O’Neill, Mr Young, Mr Bacovic, Mr McDonald and Mr Hawkins soon after this meeting, at which, according to Mr O’Neill, Mr Hawkins had advised that the men had voted to leave the site because of safety (exhibit 4, [42]).  Mr O’Neill said that Mr McDonald said that “the guys were pissed off about safety issues” and that there would be “another meeting at 7am to see if the commitment to safety had been given” (exhibit 5 at [24]).  None of this evidence was contradicted and neither Mr McDonald nor any other witness was called by the respondents in relation to these events.  I accept that Mr McDonald said then what Mr O’Neill attributes to him.

102                                       On 16 July, Mr McDonald was at the Mounts Bay Road entrance gate of the City Square Project at about 7.15am.  Mr O’Neill saw him there.  He said that Mr McDonald told him that he was there to get the men to work (exhibit 4, [47]). 

103                                       Mr Young says that approximately 7.15am on 16 July, he observed the car that he knows to be Mr McDonald’s on site at the City Square Project.  He says that he told Mr McDonald that he was not permitted on the site and he should leave.  In response, Mr  McDonald told him, in the presence of Mr O’Neill, that he was “there to get the workers back to work” (exhibit 6, [33]).  He also says that Mr McDonald requested that Mr John Flecker, Regional Managing Director of BMC, attend the City Square Project to meet with Mr Delaney.  I find that on 16 July, Mr McDonald said the things that Mr Young attributes to him.

104                                       Mr Young says he then saw and heard Mr McDonald at a meeting of approximately 20 minutes duration of all workers who were required to be performing work on the City Square Project.  This meeting was held on the access area (exhibit 6, [32], [33] and [35]).  Following the meeting the workers returned to their normal duties (O’Neill, exhibit 5, [37]).

first issue – was the action “industrially‑motivated”?

105                                       The parties do not dispute that the action of the employees leaving the City Square Project on 15 July 2009, following a meeting of employees at about 7am and failing to perform work at the site for the remainder of that day, constitutes “building industrial action” as defined in the BCII Act.  The consensus on this point is properly drawn given that “building industrial action” is defined by s 36(1)(d) to mean “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”.  The definition of “building work”, as explained by reference to s 5 and the agreed fact, includes construction of the type that employees on this site were expected to be engaged in on 15 July 2009.  By the workers going on strike – walking off the site for 24 hours – on 15 July there was a failure or refusal by persons to attend for building work or a failure or a refusal to perform any work at all by persons who had attended for building work that day.

106                                       The evidence of Mr O’Neill (exhibit 5, annexures TO­­­–3 and TO–10 to Mr O’Neill’s statement which is attachment TJ-01 to exhibit 5), which I accept in this regard, establishes that the works programmed to occur on 15 July 2009, that were not performed, were:

·                    TC3 crane jump.

·                    Level 2 slab pour.

·                    Bondek over level 2 slab pour for level 3 slab pour on Friday 17 July 2009.

·                    Stripping west core to allow jump on Thursday.

·                    Continue reo fixing on east core.

·                    Continue steel frame erection.

·                    Continue on new amenities area on B4 and B3.

·                    Lobbies and landings on level 3.

107                                       The action caused delay and disrupted work on the City Square Project.  This is confirmed, in my view, by the Multiplex Notice of Delay (see annexure TO-10 to Mr O'Neill's statement which is attachment TJO-1 to exhibit 5, at [30]).  The respondents do not contend that the strike did not disrupt programmed work.

108                                       To decide whether the action complained of was “industrially‑motivated” it is necessary to make findings about what happened or what may reasonably be inferred to have happened at material times by reference to the available evidence.  But before going to the evidence, it is useful to set out the definition of “industrially‑motivated” in s 36(1) of the BCII Act:

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.

109                                       The Commissioner relies on paras (a) and (d) of the definition in contending that the action here was relevantly industrially‑motivated.  In particular, the Commissioner contends that the action was motivated by:

·                    the immediate purpose of disrupting the performance of work; and

·                    the overall purpose (and objective) of advancing claims against the employer, Form 700, in respect of the employment of employees of Form 700, by demanding, in the face of the “building industrial action” and the implicit threat of its continuance, that Form 700 sign the commitment to follow their own safety procedures (and observe safety rules), which was necessarily therefore ‘in respect of’ work to be carried out by the employees of Form 700 and thus ‘in respect of’ an aspect of their employment.

110                                       The respondents submit that in discussing the “purpose” of an action a distinction must be drawn between purpose and the result of the action or “occurrence of an incident”, even where the occurrence of that incident is a very likely consequence of taking action in pursuit of a particular, but different purpose.  Thus, the respondents contend that the fact that some event could be foreseen as a likely consequence of an action, that is not sufficient to establish the event is the “purpose” of the “original action”.  The respondents submit in this regard that the definition of “purpose” in the New Collins Dictionary (1987) is helpful, namely:

1.      The reason for which anything is done, created or exists.

2.      a fixed sign or idea that is the object of an action or other effort.

111                                       The respondents also submit that support for the drawing of such a distinction may be found in criminal law principles that draw a distinction between intending an action to bring about a particular result, which is the purpose of the action (direct or purpose intention), and intention where the person is held to intend the inevitable consequences of an action, even where that action has a different purpose (oblique or knowledge intention): as discussed in Colvin, Lindon and McKechnie Criminal Law in Queensland and Western Australia (4^th ed, 2007) at 53.

112                                       Accordingly, the respondents submit that the purpose is the object of or the reason why an act is performed.  Even where a particular consequence is a likely result of an action, that consequence will not be a purpose of the action where it was not itself an object of or a reason why the action was performed in the first place.   Thus, the consequence of a person acting in a particular way might, for example, result in the disruption of the performance of work but that does not automatically mean that the “purpose” of the action taken was “disrupting the performance of work”: (as specified in para (d) of the definition).

113                                       The Commissioner in responding to this analysis seems generally to accept the distinction the respondents seek to make between purpose and result, but says caution needs to be taken when drawing principles from the criminal law, although they may be of assistance.  In particular, there is no element of intention in relation to the definition of “industrially‑motivated”: in this regard compare s 43 and s 44 of the BCII Act where civil penalties are for certain acts done “with intent to coerce”.  In any event, intention is readily inferred from conduct in some of the most serious offences in the criminal area, for example, see He Kaw Teh v the Queen (1985) 157 CLR 523; Saad v R (1987) 70 ALR 667 at 669; Kural v The Queen (1987) 162 CLR 502; [1987] HCA 16 at 505; Pereira v Department of Public Prosecution (1988) 82 ALR 217 at 219.

114                                       In dealing with those submissions it is important to confirm that the Court’s task in dealing with an enforcement proceeding under s 38 is to determine whether, on the available evidence, a building industrial action in question was motivated by one or more of the purposes specified in the s 36 definition of “industrially‑motivated”. It is also important to be clear about what the verb “motivated” means in the context in which it is used in this definition.  It is not defined by the BCII Act.  It is also not used in s 36 as a term of art.  It is appropriate then that its ordinary meaning be ascertained.  In this regard, the Macquarie Dictionary (4^th ed, 2005) states in relation to the verb “motivate”:

Motivate … (motivated, motivating) 1. to provide with a motive or motives. 2. to enthuse or inspire: motivated by greed …

Thesame dictionary states of the noun “motive”:

Motive…1. something that prompts a person to act in a certain way or that determines volition; an incentive.  2. the goal or object of one’s actions: his motive was revenge. 3. in art, literature, music (a motif) – adjective 4. causing, or tending to cause, motion.  5. relating to motion.  6. prompting to action. 7. constituting a motive or motives. – verb (t) (motived, motiving). 8. to provide with a motive. 9. to motivate.  10. to relate to a motif or a principal theme or idea in a work of art…

The definitions of “motive” as “something that prompts a person to act in a certain way or determines volition” and “the goal or object of one’s actions”, seem to me to be most relevant to the meaning of the verb “motivated” as used in the definition of “industrially‑motivated”.  The definition of “motivate” as “inspire”, is also helpful.

115                                       Thus, it is appropriate to suggest that an action will only be “industrially‑motivated” for the purposes of the BCII Act if it has been motivated by – that is to say, its goal or object is – one or more of the purposes specified in the s 36 definition.  The action may be motivated by each of the purposes specified in (a), (b), (c) and (d) or by any one of these specified purposes or by purposes including any of those specified.  It is a matter of fact whether one or more of these specified purposes motivated the action.

116                                       Ordinarily, the purpose by which an action was motivated would not be identified by simply looking at the result or outcome of the action taken.  For example, common experience teaches us that accidents happen.  Rather, one needs to consider closely the evidence concerning an action taken to determine its purpose; or, more particularly, in the context of the s 36 definition here, the purpose that motivated the action.   That is not to say, however, that the result or consequences of an action may not be relevant to the task of determining the purpose by which it was motivated.  For example, the consequences may be so serious that they may tend to undermine a claim that the purpose that motivated an action was something quite different, if not benign.  However, I do not consider it is open to the Court in dealing with an enforcement proceeding under s 38 to impute a purpose that motivated an action simply by regarding the result or consequences of the action and reformulating it as the purpose of the action.  This does not mean, however, that a purpose or purposes that motivated an action may not be inferred from primary facts found.

117                                       The issue of finding the purpose that motivated an action is particularly important in deciding whether an action was motivated by the purpose of “disrupting the performance of work” described in para (d) of the s 36 definition.  The respondents say the result of the action taken here may have been disruption to the performance of work, but “disrupting the performance of work” was not the purpose that motivated the strike action.  The Commissioner submits that to interpret motivation as only attaching to the ultimate objective of industrial action would be to render para (d) of the definition “as applying only to strikes for the sake of striking which have no ultimate objective at all”.  The Commissioner argues that while such actions may exist from time to time, they would necessarily be rare, whereas strikes having an ultimate objective of advancing, for example, safety issues (falling well short of the imminent risk threshold) would be much more commonplace.  There would be little point in having the s 36(1)(g) threshold (in relation to the definition of “building industrial action”) to contain strikes for that reason if it could be so easily side-stepped by reference to this being the underlying and ultimate objective of a strike and thus its sole purpose.  The Commissioner says the purpose in motivating the action does not therefore have to be confined to the ultimate or final purpose, but extends to the short‑term or intermediate purposes attaching to the means by which the ultimate objective is sought to be achieved. 

118                                       The Commissioner contends that this approach to the interpretation of “industrially‑motivated” is also consistent with the overall terms of the BCII Act.  One of the objects is to ensure that building industry participants are held accountable for their unlawful conduct: s 3(2)(d).  In the revised explanatory memorandum to the Bill that ultimately became the BCII Act that object was further explained.  Under the heading “Objective”, the explanatory memorandum states:

17.     In considering its response to the findings and recommendations of the Royal Commission, the Australian Government’s primary aim is to restore the rule of law in the building and construction industry.

119                                       The Commissioner contends that the purpose of the parts of the BCII Act directed towards industrial action was not to designate a new species of industrial action that ought to be deemed unlawful, but rather to capture conduct that was already unlawful and a pre‑existing problem within the construction industry.  The BCII Act introduced new penalties and a new means of enforcement, not a new type of industrial action.  The Commissioner therefore reasons that the requirement that action be “industrially‑motivated” exists simply to excise from the definition of “unlawful industrial action” that which would not commonly be understood as amounting to industrial action.  Industrial action that is “generally recognised” as such remains within the purview of the definition.  It is sufficient that one or more of the four purposes identified in the definition exist. 

120                                       While I accept, at least for the purposes of present argument, that actions that are motivated purely by the purpose of “disrupting the performance of work” and having no other “ultimate” industrial purpose are likely to be rare, that is not in my view a sufficient reason to construe the s 36 definition as, in effect, not requiring identification of that purpose by reference to the evidence in a given case.  To satisfy the definition of “industrially‑motivated” it must be demonstrated – as a matter of fact – that an action was motivated by one or more of the four specified purposes.  If it cannot be established that an action has been motivated by the purpose of “disrupting the performance of work”, then para (d) will not be relevant to the determination at hand.  If Parliament had intended to treat any action that disrupts the performance of work as “industrially‑motivated”, without regard to whether the actual purpose that motivated the action was disrupting the performance of work, it could have so provided.  But, presumably it did not do so because, as the Commissioner suggests, disruptions can occur from actions that are not generally considered to be “industrial action”.  The “purpose” requirement of the definition is therefore important in characterising the conduct that is proscribed by s 38 and made a Grade A civil penalty offence.

121                                       In summary, the plain words of the definition of “industrially‑motivated” in s 36 by reference to (d) mean that the definition will be satisfied where an action is demonstrated to have been motivated by the purpose of disrupting the performance of work.  There must be a relationship between the action taken and its motivation by that purpose.  In other words, that purpose must have been the motive for – the object or goal of – the action taken.  Whether the purpose specified in para (d) can be established as the motive for the action in any case will depend on the evidence lead.  Whether or not a specified purpose, including that in (d), was a “short‑term”, “long‑term”, “ultimate” or “intermediate” goal or object that motivated the action, will in my view, be irrelevant, if it is demonstrated, on the facts, to have been a purpose that motivated the action. 

122                                       Turning to the evidence, the Commissioner contends that there is no reason to doubt that the action here was taken because Form 700 had not signed the commitment and that the purpose of the action was to stop work until such time as the commitment was signed.  The disruption to work was deliberate and intentional; as was the advancement of the claims in respect of the Form 700 workers only working with Form 700 committing to their own safety procedures as well as more general safety rules, to their ultimate presumed benefit (and for the benefit of all other workers at the site who might otherwise have been  affected by anything that happened in the future arising from the absence of such a commitment).

123                                       The respondents reject each of the two purposes the Commissioner contends for and contend that the only evidence the Commissioner adduced that might be construed as going towards establishing the purpose or purposes of the action, is that of Mr McRae when he said:

·                    Mr Delaney addressed the meeting and said something along the lines of “this has been called regarding the non commitment of Form 700”.

·                    The discussion he recalled from the meeting was in respect of Form 700 not giving the commitment and Form 700’s safety standards.

124                                       The respondents point out that Mr McRae did not hear the motion that was put up or voted upon.  All he knew was that the workers had voted to go off the job.  The respondents submit, therefore, that the Commissioner has adduced no evidence demonstrating that (a) or (d) of the definition have been established.

125                                       Similarly the respondents submit that there is no evidence from which it could be inferred that the purposes contained in (a) and (d):

·                    Formed any part of the purposes of the workers in attending the meeting or action in leaving the site; or

·                    Formed any part of the purposes of Mr McDonald in attending the meeting.

126                                       The respondents submit the most the Court might find or infer from the evidence is that:

·                    The employees who took the action had an express or implied motivating purpose, namely, to compel Form 700 to sign a commitment to safety, however that is not a purpose that falls within (a) or (d);

·                    The employees who took the action had an express or implied motivating purpose, namely to improve Form 700’s safety standards, however it was not a purpose that falls within the definition either;

·                    And that in either case the applicant has failed to adduce evidence establishing the necessary nexus between such a purpose and the conduct of Mr McDonald.

127                                       There was no express discussion, so far as the available evidence is concerned, about the strike action being for the purpose of disrupting the performance of any particular work or work generally, although I have no doubt in finding that workers who voted for the resolution to strike understood that the action they voted on would result in work actually being disrupted.  However, there is no evidence along the lines of someone proposing the strike action, “so we can disrupt the work to be carried out today”.

128                                       The available evidence suggests that the meeting at around 7am on 15 July was a short one.  It was over by about 7.15am.  Form 700 was mentioned at the meeting in the context of “safety standards” and “non‑commitment” to those standards.  After some brief addresses, including by Mr Delaney, and a comment or admonition from Mr McDonald to “stand up for yourselves” when the first vote on the 24 hours strike resolution did not appear to have general support on a show of hands, the workers supported the strike resolution and walked off the job for 24 hours.

129                                       There can be no doubt, in my view, that in striking on this basis, the purpose that motivated the action was the goal of forcing Form 700 to sign the written commitment that all other sub‑contractors had signed the day before, on 14 July, at the meeting convened by Mr O’Neill.  The building industrial action in this case – the withdrawal of labour, or strike – was plainly motivated by that very particular purpose.  I will return shortly to the question whether this purpose falls within the purpose specified in para (a) of the s 36 definition of “industrially‑motivated”.   But the question first arises whether this purpose may be said to satisfy the purpose specified in para (d) of the definition in any event.  In other words, can it also be said that the action was motivated by the purpose (whether short term, intermediate or long term) of “disrupting the performance of work” in circumstances where the action was plainly motivated by the overall objective, as the Commissioner’s counsel puts it, of having Form 700 sign the safety commitment?

130                                       The answer, on the facts, is not easy to give.  Plainly the workers intended to withdraw their labour with the consequence that work on site would be disrupted for 24 hours.  Thus it may be argued that an immediate “purpose of the action” was “disrupting the performance of work”.  However, in my view, it is one thing to say that the immediate “purpose of the action” was disrupting the performance of work on site for 24 hours.  It is another to say that the purpose of disrupting the performance of work motivated – was the goal or object of – the strike action.  In my view it was not.  Rather the object of securing the safety commitment from Form 700 was the purpose, and the only purpose, that motivated the action.

131                                       In the result, I am not satisfied, on the facts before me, that it can be said the action was motivated by the purpose of disrupting the performance of work.  I consider there was but one purpose, not two, and that was to force Form 700 to sign the written commitment to safety standards that had been signed by other sub‑contractors on the site on 14 July.  In my view, the withdrawal of labour, and the consequent result of disrupting the performance of work on the site, was not the motivation for the action.  It is in my view artificial in the factual circumstances of this case to break down the sole purpose I have described into sub‑purposes.  Accordingly, I find that the purpose that motivated the action here, which was the sole purpose, was the purpose of forcing Form 700 to sign the written commitment to safety standards that had been signed by other sub‑contractors on the site on 14 July 2009.

132                                       I therefore find that the action was not motivated by the purpose of disrupting the performance of work and so the action was not “industrially‑motivated” within the meaning of that term supplied by para (d) of the definition in s 36. 

133                                       In support of the Commissioner’s contention that the facts disclose two relevant purposes that motivated the action here – the immediate purpose of disrupting the performance of work and the overall purpose of having Form 700 sign the written commitment to safety – senior counsel for the Commissioner refers to Tillmanns Butcheries Pty Ltd v Australasian Meat Industry Employees’ Union (1979) 42 FLR 331 (Tillmanns).  This was an appeal that concerned s 45D of the Trade Practices Act 1974 (Cth) and whether the respondents had acted in concert to prevent supplies of meat to the applicant in breach of s 45D.  Amongst other things, in making out such an action it was necessary to prove that the conduct engaged in was “for the purpose of causing substantial loss or damage to the business of a corporation”.

134                                       Bowen CJ (with whom Evatt J agreed), at 338, observed that the trial judge did not go into purpose as a separate matter.  He said that the proscribed purpose may be difficult to prove as an independent matter especially where the dominant purpose of the ban was to extend union membership or further union interests.  Nevertheless, Bowen CJ considered that the fact that a union and its members acting together have a union purpose does not necessarily exclude the possibility that they, also, had the purpose of causing substantial loss or damage to the business of a corporation.  The Chief Justice referred to observations of Evatt J in McKernan v Fraser (1931) 46 CLR 343 that a combined strike action is usually undertaken for the purpose, both of causing harm to the employers and for the improvement or maintenance of the standards of unionists.  The Chief Justice considered the evidence in the case before him led to the conclusion that the respondents knew that the only pressure that would be effective against the applicant was the prospect of actuality of loss or damage.  To cause it was one of their purposes.

135                                       Deane J, at 349, considered that the question of purpose was to be answered not by reference as to whether it was appreciated that the relevant conduct might have the specified effect but by reference to the real reason or reasons for, or the real purpose or purposes of, the conduct and to what was in truth the object in the minds of the relevant persons when they engaged in the conduct in concert.  Insofar as the union was concerned his Honour said that its purpose must of course be determined by reference to the purpose of those through whom it  had acted.  Deane J, at 350 – 351, found that the black ban was plainly imposed as a means of bringing pressure to bear upon the appellant to accede to union demands in relation to union membership of the appellant’s employees.  The point and purpose of the ban was that it would cause substantial loss or damage while it remained operative. 

136                                       His Honour noted that s 45D(2) of the Act provided that a person shall be deemed to engage in conduct for a purpose mentioned in s 45D(1) if he engages in that conduct for purposes that include that purpose.  The provisions of the subsection therefore made it unnecessary to consider whether the respondents’ “dominant purpose” in engaging in the conduct was to cause loss or damage or whether the overall objective of advancing the membership should be seen as the dominant purpose.  The purpose of causing substantial loss or damage to the appellant’s business was a  purpose, whether dominant or subsidiary and that was sufficient.

137                                       In my view, as I have endeavoured to explain above, the s 36 definition of “industrially‑motivated” raises an issue that is materially different from that considered in Tillmanns' case.  The question under the BCII Act definition is whether a specified purpose motivated the action.  This is not the same as a question whether the purpose of the action was one of the purposes specified in the definition.  In substance, the latter question is that which was raised in Tillmanns' case – was the conduct engaged in “for the purpose of causing substantial loss or damage to the business of a corporation”.  The short term purpose of the conduct was indeed that purpose, with the broader industrial purpose of gaining membership being another purpose.  In Tillmanns’ case no question arose as to whether the motivation for the conduct in question was the purpose of causing substantial loss or damage to the business of the corporation.  If it had been, in my view, the Full Court may well have come to a different conclusion, one consistent with the view I have expressed here.

138                                       That leaves the question, as contended for by the Commissioner, whether the purpose that motivated the action, as I have found it to be, falls within the purpose specified in para (a) of the s 36 definition namely, of “supporting or advancing claims against an employer in respect of the employment of employees of that employer”.

139                                       The Commissioner contends that the action was motivated by the overall purpose (and objective) of advancing claims against the employer, Form 700, in respect of the employment of employees of Form 700, by demanding, in the face of the action and implicit threat of its continuance, that Form 700 sign the commitment to follow their own safety procedures and observe safety rules, which was necessarily, therefore, “in respect of” work to be carried out by the employees of Form 700 and thus “in respect of” an aspect of their employment.  The Commissioner in making his submission emphasises the wide meaning that  has been given to the phrase “in respect of”.  For example, in Trustees Executors & Agency Co Ltd v Reilly [1941] VLR 110 at 111 Mann CJ (quoted with evident approval by Taylor J in State Government Insurance Office (Q) v Crittenden (1966) 117 CLR 412 at 416) said:

The words ‘in respect of’ are difficult of definition, but they have the widest possible meaning of any expression intended to convey some connexion or relation between the two subject-matters to which the words refer.

The Commissioner says that because the workers wanted to see Form 700 sign the written commitment, the action can be taken as either supporting or advancing claims, as safety claims, against Form 700 “in respect of” the terms and conditions of employees of Form 700.

140                                       The Commissioner submits that the concern raised by Mr Delaney in the meeting of 14 July was substantially in relation to the work practices of Form 700 workers.  The first step in seeking to address this was to force Form 700 to sign the commitment to follow their own safety procedures and also broader safety rules.  By its nature this was the advancement of a claim against Form 700 which was connected or related to the employment of Form 700 employees by being concerned with the way in which their work was to be performed.

141                                       The respondents, as noted above, submit that, at most, the Court might find or infer from the evidence that the employees who took the action had an express or implied motivating purpose to compel Form 700 to sign a commitment to safety and/or to improve safety standards, but such a motivating purpose does not constitute “supporting or advancing claims against an employer in respect of the employment of employees of that employer”. 

142                                       The respondents further contend that if that is the purpose contended for, then there is a lack of evidence to support it.  No employees of Form 700 were brought forward by the Commissioner to say that any of what happened had to do with them.  The only evidence is that of Mr McRae.  There is no evidence that shows the actions were motivated by the purpose of supporting or advancing the claims of the employees of Form 700 against Form 700 as their employer.  The respondents accept that such evidence would exist if, for example, there were evidence that on 15 July 2009 the workers had got together and claimed that the employer had been underpaying all their employees and as a result industrial action was going to be taken.  There would then be seen to be a purpose for the action that motivated the action taken.

143                                       A number of questions arise in deciding whether the purpose that motivated the action, as I have found it was, falls within para (a) of the definition, including:

·                    What evidence is there of “claims against an employer” in respect of the employment of employees of that employer?

·                    If there is evidence of such claims, were they “in respect of the employment of employees of that employer”?

·                    Does the evidence disclose that the action was in fact motivated by either the purpose of “supporting” or the purpose of “advancing” such claims?

144                                       The word “claims” is not defined in the BCII Act.  In the context in which the noun “claims” appears in para (a) of the s 36 definition, namely, “claims against an employer in respect of the employment of employees of that employer”, I consider it is intended to have its ordinary, broad meaning.  The noun “claim” is relevantly defined by the Macquarie Dictionary (4^th ed, 2005) to mean “a demand for something as due, an assertion of a right or alleged right”.  In the context in which “claims” is used I do not consider that there needs to be more than one discrete claim in issue.  Where employees make a claim on their employer, it is apt to say they collectively have made “claims” against the employer. 

145                                       In this case it is relevant to comprehend the events of 14 July and 15 July as a sequence leading to the action taken.  It is plain enough that at the meeting of 14 July 2009 there was an expectation by both Mr Delaney and Mr O’Neill that all the sub‑contractors’ representatives present should sign the written commitment to safety that Mr O’Neill produced.  It was all about getting Mr Delaney, who was concerned about a lack of commitment to safety on site, back on the job as the Occupational Health and Safety Officer on site.  When Form 700 did not sign through their representative, and was the only sub‑contractor not to do so, the meeting concerning the non‑commitment of Form 700 on 15 July 2009 ensued.  It is interesting to note that Mr McRae, who did not ordinarily attend site meetings such as the one held on 15 July, was unusually motivated to do so having regard to what had happened the day before when Form 700 did not sign the safety commitment.  Plainly there was an express or implied demand for the representatives of the sub‑contractors to sign the safety commitment on 14 July 2009.  After the meeting of 15 July 2009 voted to stage a walk out for 24 hours, Mr McDonald told Mr O’Neill and others that there would be another meeting the following day at 7am “to see if the safety commitment has been given”.  This was all about Form 700.  The strike action was motivated by the purpose of forcing Form 700 to give the written safety commitment.  However one looks at it, whether by reference to what was said and done at the meetings on 14 and 15 July and soon after by Mr McDonald, when he spoke to Mr O’Neill and others,  or by reference to the strike action itself, construed in the factual context of what had occurred on 14 and 15 July up to the point that the resolution was passed, there were “claims against an employer” – namely, Form 700 – to give the written safety commitment that other sub‑contractors had given on 14 July 2009. 

146                                       The next question is whether these claims against Form 700 were “in respect of the employment of employees of that employer”.  As I have just recounted, the strike action of employees of sub‑contractors on site was motivated by the purpose of forcing Form 700 to sign the safety commitment that all other sub‑contractors had signed on 14 July.  By reasonable inference, taking into account the events of 14 July and what was said and resolved at the meeting on 15 July 2009, these workers supporting the action wanted to ensure that all persons working on the site, including employees of Form 700, had the benefit of a safe working environment.  The “claims” in that regard were “in respect of the employment of employees” of Form 700.  This proposition, in my view, is obvious when one takes into account that under the general law, and often under statutory law, there is a primary duty on employers to ensure that their employees work in safe working conditions.

147                                       Finally, in my view, the action may be seen as one both “supporting” and “advancing” such claims.  Whether or not the phrase “supporting or advancing” is intended a composite one where those verbs are read conjunctively, or not, the action taken here may be seen to have been motivated the purpose of supporting the claims made at the meeting of 15 July 2009 and, or advancing such claims.  Mr McDonald made it clear soon after the meeting that the workers would meet again the next morning to see if the safety commitment had been signed.  That is what the strike was about – supporting or advancing the demand for Form 700 to demonstrate its commitment to safety by signing the commitment.

148                                       I therefore find that the action here in question was motivated by the purpose specified in para (a) of the s 36 definition of “industrially‑motivated”, that is to say, of supporting or advancing claims against an employer in respect of the employment of employees of that employer.

149                                       The fact that no Form 700 employees were called to give evidence is, in the circumstances, beside the point.  The definition in para (a) does not depend for its fulfilment on claims against an employer by its own employees.  The claims may be made by any person.   The critical issues are whether: there are “claims against an employer”; such claims are “in respect of the employment of its employees”; and whether the action was motivated by the purpose of supporting or advancing such claims.  In each case I have found in the affirmative. 

150                                       Having regard to these findings, and the agreed facts that the action is “constitutionally‑connected” action and is not “excluded action”, the building industrial action here in question constitutes “unlawful industrial action” as defined in s 37 of the BCII Act, for the purposes of s 38.

Second issue – whether the Commissioner has proved that Mr McDonald was involved in the contravention

151                                       Section 48(2) provides that for the purposes of Pt 1 of Ch 7 of the BCII Act, dealing with Enforcement, 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.

152                                       In this case, the Commissioner submits that Mr McDonald should be treated as having contravened s 38 because he did one or more of the “accessorial acts” described in s 48(2)(a), (b) and (c) by performing his role at the meeting at which the vote to strike was taken.

153                                       In Giorgianni v The Queen (1985) 156 CLR 473; [1985] HCA 29 (Giorgianni) the High Court had occasion to consider the phrase “aids, abets, counsels or procures the commission of any misdemeanour” as it appeared in s 351 of the Crimes Act 1900 (NSW).  Members of the Court emphasised that such provisions are designed to fix a secondary party or “accessory” with liability for the conduct of a primary party where they can be shown to be in some way “linked in purpose” with the person actually committing the crime: see, for example, Gibbs CJ at 479 – 480; Mason J at 493.

154                                       Gibbs CJ, at 487 – 488, concluded that no‑one may be convicted of aiding, abetting, counselling or procuring the commission of an offence unless, knowing all the essential facts which made what was done a crime, he intentionally aided, abetted, counselled or procured the acts of the principal offender.  In the course of coming to this summation, Gibbs CJ, at 480 ­– 488, explained that while some authorities suggested that each of the four words in question should be given their ordinary meaning it was apparent that the ordinary meanings of some at least of those words overlap and that sometimes the words are used in particular combinations or as a phrase, which is to be considered as a whole.

155                                       Similarly, Mason J, at 492, having regard to the common law and the legislative history of the four words, concluded that, once it is acknowledged that the terms are merely declaratory of the common law, it is to the common law concept of secondary participation, and not to the ordinary meaning of the words themselves, that regard must be had.  In this regard, as indeed did Gibbs CJ in his judgment, Mason J referred to what Cussen ACJ said in R v Russell [1933] VLR 59 at 67:

All the words abovementioned are, I think, instances of one general idea that the person charged as a principal in the second degree is in some way linked in purpose with the person actually committing the crime, and is by his words or conduct doing something to bring about, or rendering more likely, such commission. (Emphasis added)

156                                       Mason J, at 494, emphasised that the “link in purpose” between the secondary party and the principal offender is not established where a person does something to bring about, or render more likely, the commission of an offence by another in circumstances in which, through ignorance of the facts, it appears to him to be an innocent act. 

157                                       Wilson, Deane and Dawson JJ, in a joint judgment, in relation to the secondary participant’s liability also said, at 506 – 507, that the accessory’s participation must be intentionally aimed at the commission of the acts which constitute it.  It is not sufficient if his or her knowledge or belief extends only to the possibility or even probability that the acts which appear he or she is assisting or encouraging are such, whether he or she realises it or not, as to constitute the factual ingredients of the crime.  If that were sufficient, the person might be guilty of aiding, abetting, counselling or procuring the commission of an offence which formed no part of their design.  Intent is required and it is an intent which must be based upon knowledge or belief of the necessary facts. 

158                                       Accordingly, in Construction Forestry Mining and Energy Union v Clarke (2007) 164 IR 299; [2007] FCAFC 87, at 308, the Full Court of the Federal Court said (in relation to the accessorial liability provisions of s 4(5) of the former Workplace Relations Act 2006 (Cth)):

Regardless of the precise words of the accessorial provision, such liability depends upon the accessory associating himself or herself with the contravening conduct – the accessory should be linked in purpose with the perpetrators (Gibbs CJ in Giorgianni v R (1985) 156 CLR 473, at 479 – 480; see also Mason J at 493 and Wilson, Deane and Dawson JJ at 500.)  The words “party to, or concerned in” reflect that concept.  The accessory must be implicated or involved in the contravention (Ashbury v Reed [1961] WAR 49 at 51; R v Tannous (1987) 10 SWLR 303, per Lee J at 307E – 308D (agreed with by Street CJ at 304 and Findlay J at 310)) or as put by Kenny J in Emwest Products Pty Ltd v Automotive, Metals, Engineering, Printing and Kindred Industries Union(2002) 117 FCR 588, at [34], must participate in, or assent to, the contravention. (Emphasis added)

159                                       Adopting these approaches, in Temple v Powell (2008) 169 FCR 169; [2008] FCA 714, Dowsett J at [46] found accessorial involvement of two union officials (including, co‑incidentally Mr McDonald, the current third respondent) made out by virtue of their “attendance at, and conduct of, the relevant meeting, and, perhaps, the subsequent notification to management of the proposed strike”.

160                                       As to the phrase “knowingly concerned in” the contravention, used in s 48(2)(c), in Yorke v Lucas (1985) 158 CLR 661; [1985] HCA 65 (Yorke), at 670, the majority of the High Court said that its proper construction:

requires a party to a contravention to be an intentional participant, the necessary intent being based upon knowledge of the essential elements of the contravention.

However, whilst knowledge of the essential elements of the contravention is necessary in order to attract liability it is not necessary that there be knowledge that they actually amount to a contravention: see Yorke at 667.

161                                       Accordingly, the relevant accessorial liability provisions relied on by the Commissioner here will not be attracted if the secondary party (Mr McDonald) acted in ignorance of the facts, as Mason J put it in Giorgianni.   The Commissioner must establish to the requisite civil standard that Mr McDonald had knowledge of the essential elements of the contravention.

162                                       The Commissioner contends that by Mr McDonald speaking at the meeting on 15 July 2009, and exhorting a second and better vote immediately prior to a walk off, he “participated in, or assented to” the failure or refusal of the workers to attend for or perform work with the further purpose and objective of forcing Form 700 to sign the safety commitment.  He was thus “linked in purpose” and did something to bring it about or render it more likely.  By doing so, he was involved in that conduct for the purposes of s 48(2).  His conduct met each of the descriptions of aiding, abetting, counselling, procuring, as well as inducing and being knowingly concerned in and being a party to the s 38 contraventions.

163                                       The Commissioner submits that the events of 16 July 2009 involving Mr McDonald cannot be said to be “disconnected or unrelated” to his involvement the previous day and given that there is no evidence from Mr McDonald, there is nothing to rebut that logical connection being inferred.   The Commissioner submits that the events of 16 July 2009, resulting in the workers returning to their normal duties, indicates that Mr McDonald had ensured and controlled the action being taken on 15 and 16 July 2009 from the time it commenced, to the time it ended.  The Commissioner submits that it is clear that Mr McDonald was in a position to influence whether the employees ceased or returned to work. 

164                                       The Commissioner submits that there was no challenge and thus no reason to doubt the evidence of Mr McRae that the initial vote at the meeting, which when ultimately passed led to work stopping at the site, was well short of a majority and that Mr McDonald spoke up at the meeting, gesturing and saying in an angry voice, “stand up for yourselves”, or words to that effect.  These were plain words of exhortation in the face of a failure of a majority to vote in favour of the motion.  The Commissioner submits this account of what happened was not contradicted in any way.  If any meaning other than the ordinary meaning was to be given to these words, evidence for such an alternative interpretation is required, but not given. 

165                                       The Commissioner submits that this exhortation plainly brought about the majority vote which resulted in the workers leaving the site and the action being taken.  Had Mr McDonald not spoken or otherwise urged a different outcome, the vote would almost certainly have remained as it was – unfavourable.  The motion would have failed and the action would not have taken place.  Mr McDonald’s input was practically indispensable.

166                                       The Commissioner also says that there is no reason to doubt that the action was taken because Form 700 had not signed the commitment and that the purpose of the action was to stop work until such time as the commitment was signed.  The disruption to work was deliberate and intentional; as was the advancement of the claims in respect of the Form 700 workers only working with Form 700 committing to their own safety procedures, as well as more general safety rules, to their ultimate presumed benefit.

167                                       The Commissioner notes that in Stuart‑Mahoney v Construction, Forestry, Mining and Energy Union (2008) 177 IR 61; [2008] FCA 1426, at 64 [13], Tracey J was satisfied that s 48(2) was engaged by conduct which “raised for consideration, encouraged and supported a decision” at a meeting that an overtime ban be imposed.  The Commissioner contends that Mr McDonald, in saying the words, or words to the effect of “stand up for yourselves” immediately before the second vote, did more than raise for consideration, and encourage and support the decision – he exhorted the workers to vote for the action to be taken. 

168                                       The Commissioner further contends that Mr McDonald should be seen to have had knowledge of the essential elements of the contravening conduct.  He necessarily knew the meeting and the walk off would prevent the workers from attending for or performing their building work and commented shortly afterwards about the condition necessary for them to return to work.  He knew the purpose or purposes that motivated the meeting because he was present when the failure of Form 700 to sign the commitment was spoken about.  He was close to the speaker.  He was aware of the likely unlawful consequences because he warned that the action would be looked at, which in context was a reference to the ABCC.  If he meant something more benign than that, he did not give evidence of that to rebut the meaning that can reasonably be inferred.

169                                       The respondents jointly submit that Mr McDonald was not involved in the action.  They accept that Mr McDonald’s liability depends upon him associating himself with the contravening conduct – which will be established if he is “linked in purpose” with the perpetrators.

170                                       The respondents emphasise, by reference to the evidence of Mr O’Neill, that Mr O’Neill on 15 July:

·                    Saw Mr McDonald at the site before he learned that there was going to be a meeting at 7am.

·                    Did not ask, nor did Mr McDonald offer any reason, why he was at the site that morning.

·                    Mr Hawkins told him that there was going to be a meeting of workers at 7am.

·                    Upon being told of this by Mr Hawkins, did not refuse permission for the meeting.

·                    Did not hear or see the meeting taking place.

·                    After the meeting, in a conversation between himself and Mr McDonald, Mr McDonald referred to the reason for the workers leaving the site and that there would be another meeting the following day at 7am.

171                                       I have, in recounting the events of 15 July 2009 above, found that the evidence of Mr O’Neill that Mr Hawkins had told him that Mr McDonald was going to be having a meeting at 7am, and the later evidence that Mr Young had told him, after the meeting, about the meeting “Mr McDonald had conducted” is evidence about which I entertain real doubt as to its accuracy.  I have no doubt that there was mention made of the meeting in each case.  But I consider there is real doubt that either Mr Hawkins or Mr Young used the words, when speaking to Mr O’Neill, that asserted, in effect, that the meeting was that of Mr McDonald. 

172                                       The respondents accept the evidence of Mr Young that he arrived at the meeting late and did not hear what Mr McDonald had to say, but saw him gesturing before there was a show of hands.

173                                       As to the evidence of Mr McRae, who the respondents accept was at the meeting although had difficulty in hearing everything that was said, the respondents submit the evidence is vague and unsatisfactory on the crucial issue of the words actually spoken.

174                                       On behalf of the respondents, it is submitted that what can be gleaned from Mr McRae’s evidence is that Mr McDonald:

·                    Did not convene or call the meeting together.

·                    Was not introduced to the meeting.

·                    Did not say anything about what the workers should do.

·                    Did not ask the workers to put up a resolution.

·                    Did not react to the proposal by the workers.

·                    Did not say anything about the need for that proposal.

·                    Did not say what the Union would view the workers as if they did not do something.  Presumably meaning to submit that he did not cajole the workers to vote in a particular way.

175                                       The respondents submit that the only evidence adduced by the Commissioner as to the positive conduct of Mr McDonald came from Mr McRae to the effect that Mr McDonald:

·                    Was present at the meeting.

·                    Spoke briefly but was very muffled.

·                    Spoke only at the end of the meeting after a motion was put on the floor and a show of hands went up.

·                    At the end of it said something the substance of which was that this walk off would be “looked at”.

176                                       Counsel for the respondents submit that as to precisely what Mr McDonald said Mr McRae could not recall and his evidence taken at its highest is reflected in the passage set out above where following an initial show of hands, Mr McDonald said something to the effect of “stand up for yourselves”.

177                                       The respondents suggest that the high watermark of the Commissioner’s evidence against Mr McDonald is:

·                    Mr O’Neill’s evidence that Mr Hawkin’s told him that Mr McDonald was going to be having a meeting on site at 7am.

·                    Mr McRae’s evidence that Mr McDonald spoke with a raised voice, the substance of which was to “stand up for yourselves”, and his words were angry.

178                                       The respondents submit that there is difficulty in acting upon this evidence, because:

·                    Mr O’Neill’s evidence about what Mr Hawkin’s allegedly says was “evasive, inconsistent and lacking credibility”.

·                    Mr McRae’s evidence about what Mr McDonald allegedly said is inherently unreliable by his own admission because he could not hear very well and could not recall exactly what was said.

·                    Mr McRae’s evidence is the “gist” of what Mr McRae got from Mr McDonald’s content, yet he was unable to describe the content such that most importantly his evidence on the issue is completely lacking in context.

179                                       The respondents submit there is no evidence that Mr McDonald did anything that might be construed as associating himself with the contravened conduct, linking himself in purpose with the workers’ decision to walk off the job, implicating or involving himself in the contravention or participating in or assenting to their action.

180                                       The respondents further submit there is no evidence upon which it could be inferred that Mr McDonald called the meeting for the purpose of taking industrial action, since there is no evidence that Mr McDonald called the meeting.

181                                       Counsel further submits that there is no evidence to sustain an inference that Mr McDonald was linked in purpose with the workers in that he did not:

·                    Organise the meeting.

·                    Convene or call the meeting to order.

·                    Say anything about the reasons why the workers were meeting in the first place.

·                    Speak to any motion put up by anyone.

·                    Advise or recommend to the workers what they should do.

·                    Move any motion at the meeting.

·                    Facilitate the decision to walk off the job.

182                                       Counsel for the respondents submits the Court cannot speculate about these matters or draw adverse inferences on the strength of evidence that Mr McDonald was present and was heard to speak for less than a minute after a motion had been put up and voted upon, but that what he actually said or the context in which he said it are not known.

183                                       As to whether Mr McDonald may be said, in the words of s 48(2)(a), to have aided, abetted, counselled or procured the contravention, while one can take each of these verbs and analyse the conduct of Mr McDonald by reference to it, as authority indicates, all of the words are instances of one general idea, that the person charged as a principal in the second degree is in some way “linked in purpose” with the person actually committing the contravention and is by his words or conduct doing “something to bring about, or rendering more likely, such commission”.   However, if one were to focus on any particular verbs in this sub‑paragraph, probably one would focus on “counselled”, and perhaps to a lesser extent, “procured”.  The ultimate question though is whether the role Mr McDonald played at the meeting linked him in purpose with the contravention.

184                                       As to s 48(2)(b), the particular question is whether Mr McDonald, by being at the meeting, standing near the speaker, making the exhortatory comments that he made, to “stand up for yourselves”, thereby “induced” the contravention. 

185                                       As to s 48(2)(c), the question is whether Mr McDonald was “knowingly concerned in” the contravention because he can be seen to have had knowledge of the essential elements of the contravening conduct and involved himself in the contravening conduct.

186                                       The answer to the question arising under each of s 48(2)(a), (b) and (c) tends to overlap with the other, relying as it does on the same or broadly the same set of facts.

187                                       The Commissioner’s case is framed to reject any suggestion that Mr McDonald’s role at and involvement in the meeting on 15 July was incidental to the actions of the workers, falling short of involvement in the contravention.

188                                       Dealing with the question of the organisation and conduct of the meeting of 15 July, I am not reasonably satisfied that Mr McDonald organised the meeting or conducted it.  There is very little to permit such a finding to be made.  Obviously he knew about the meeting.  He was at the project site in time for the 7am meeting on 15 July and he fully expected to be at a further meeting the following day, having regard to the unchallenged comments he made to Mr O’Neill and others following the meeting, as well as his conduct on 16 July when he returned for a meeting at 7.15am that day.  He then told Mr Young, in the presence of Mr O’Neill, that he was there to get the workers back to work.  He then also requested that Mr Flecker (BMC’s regional manager) attend the project site to meet with Mr Delaney.  All of this evidence suggests that Mr McDonald was performing a role as a union official to assist workers where they required assistance but not necessarily that he had taken charge of a meeting at which industrial action might be proposed.  I am not prepared to draw any inference based on these facts that Mr McDonald organised or conducted the meeting on 15 July.

189                                       As to how the meeting was organised and exactly who organised it, I am unable to say.  Certainly I am unable to make any findings about that matter.  However, the meeting obviously grew out of the BMC site meeting with sub‑contractors of 14 July at which Form 700 declined an invitation to sign the written commitment when requested to do so by Mr O’Neill, when all other sub‑contractors on site then did so.  One might speculate that Mr Delaney, in the light of Form 700’s response, had taken soundings and decided to cause the meeting to be held and may even have invited Mr McDonald to it.  Alternatively, one might speculate that Mr McDonald heard about the events of 14 July and that there was going to be a meeting the next morning and decided to attend it.  However, all scenarios, including that Mr McDonald organised the meeting, are based on speculation.  None is more compelling than another.  What all this emphasises is that there is no evidence to show that Mr McDonald organised the meeting of 15 July.  Similarly, that Mr McDonald controlled the action from the time it commenced, including the meeting, is not, in my view, an inference that can reasonably be drawn from the facts I have found.  Mr McDonald was at the meeting but there is nothing to suggest he organised, controlled or ran it.

190                                       Nor am I satisfied that the events of 16 July and what Mr McDonald then said to Mr Young about being at the site to get the workers back to work, necessarily indicate that he had controlled the meeting process throughout.  His conduct in so doing is consistent with the performance of the role of a union official seeking to assist members of the union having become aware of an industrial issue or action initiated by the workers.

191                                       I have already found that there is no other direct evidence to disclose that the 7am meeting on 15 July was, in effect, Mr McDonald’s meeting.  The evidence is that Mr Delaney and others spoke.  The meeting was not a long meeting, the focus of the discussion was the failure of Form 700 to sign the safety commitment and a generally expressed concerned about Form 700’s safety standards.  I have already found that the purpose that motivated the strike action that followed the resolution supported at the meeting was to force Form 700 to sign the written safety commitment that other sub‑contractors on site had signed the day before. 

192                                       While Mr McDonald is not shown to have organised or conducted the meeting of 15 July, I have little doubt that Mr McDonald’s presence on site was significant.  Mr O’Neill and Mr Young were very familiar with Mr McDonald as an official of the respondent unions and at different times directed him to leave the site.  However, Mr O’Neill did not take any steps,  when he learned about the 7am meeting on 15 July from Mr Hawkins, to cause it not to take place or to attend it.  Whatever his reasons may have been for not doing so, one can only speculate.

193                                       Mr McDonald plainly was well known personally to both those men.  He was also apparently known to Mr McRae, but not from personal association.  Mr McRae’s evidence was that he was aware of Mr McDonald from his media profile.  He said he recognised Mr  McDonald as a union representative. 

194                                       Mr McDonald therefore may correctly be seen as a person from the respondent unions who attended the meeting with an industrial interest in the subject matter of the meeting.  That Mr McDonald saw himself as a person with a legitimate and significant interest in the meeting, and that others saw him in that way, is emphasized by the uncontroverted evidence of Mr McRae that Mr McDonald stood nearby to Mr Delaney when Mr Delaney (and others) spoke.  In other words, Mr McDonald, the recognisable union official, stood close by those who seem to have been actively engaged in the conduct of the meeting and who addressed the topic of concern at the meeting – safety standards on site and Form 700’s commitment to safety.

195                                       Against all of that, something upon which the respondents strongly rely, is that the one of the few things the evidence shows that Mr McDonald otherwise did at the meeting by way of a verbal contribution to the meeting was to say to the meeting, apparently angrily and with some gesturing, after a first show of hands seemed to insufficiently support strike action, to “stand up for yourselves”.   These words may not have been the actual words used, but I find they were the words the substance of which Mr McDonald spoke.  I also find he gestured and that the words were spoken with an “angry” tone.

196                                       However, immediately after these words or words to this effect were spoken in this manner, the evidence shows that a fresh show of hands was taken and strong support for the strike action was given by the assembled workers.

197                                       Mr McRae also said that, at one point, Mr McDonald also said to the meeting that their actions would be “looked at”, which he (Mr McRae) took to mean reviewed by the ABCC.  I accept and find that Mr McDonald also said the words Mr McRae recalled.

198                                       I should say that I am fortified in making these findings concerning what Mr McDonald did and said at the meeting on 15 July and soon afterwards by his failure to give evidence to contradict these accounts.

199                                       While counsel for the respondents submit that what Mr McDonald actually said and the context in which he said it are not known, and so not too much store should be placed on the words “stand up for yourselves”, or words like it, constituting an exhortation to the workers to take strike action, I do not consider any other construction is equally open. I am comfortably satisfied that when the first show of hands suggested ambivalence on the part of the workers in supporting strike action, Mr McDonald’s words and non‑verbal communication of gesturing were not by way of more supportive advice to the assembled workers, but were a blunt exhortation to the workers to do better.  Mr McRae’s evidence that he spoke with “angry words” and was “gesturing” support this conclusion.

200                                       In the context of a meeting being held at 7am in the morning on the project site of which Mr McDonald obviously had an awareness, at which he stood with Mr Delaney, or near Mr Delaney, and then, following the first weak response to the motion for strike action over the safety issues mentioned at the meeting, Mr McDonald spoke the words he did in the manner he did, I have little doubt that his words and actions were intended to be by way of exhortation of the workers to support the strike action and in order to gain Form 700’s commitment to safety, and had that effect. 

201                                       Whether Mr McDonald’s conduct may also be characterised as conduct that “induced” the contravention I am less satisfied.  The verb “induce” is not defined by the BCII Act.  It should be given its ordinary definition.  It is relevantly defined by the Macquarie Dictionary (4^th ed, 2005) to mean “to lead or to move by persuasion, as to some action, state of mind, etc” and “to bring about, produce, or cause”.   It seems to me to demand something more, or at least different, from the conduct identified in s 48(2)(a).  Mr McDonald may have been considered an influential union representative at the meeting at 7am on the morning in question.  By positioning himself as he did near to Mr Delaney indicates he appreciated the significance of his office as a union official and, in that sense, his right to stand up front.  While the fact that he spoke up, strongly in my view, to exhort the workers to “stand up for yourselves” linked him in purpose with the workers for the purposes of s 48(2)(a), his conduct overall seems to me to fall short of “inducing” the action, in the sense of causing the contravention, for the purposes of s 48(2)(b).   

202                                       As to whether or not Mr McDonald was knowingly concerned in the contravention, one must consider whether he had knowledge of the essential elements of the contravening conduct.  In light of the findings I have already made, it is clear that Mr McDonald knew that a walk off would prevent the workers from attending for or performing their building work.  He was aware at the meeting, before the strike action was voted upon, having regard to the comments he made soon after the meeting to Mr O’Neill, that the workers were “pissed off” about safety.  He was present at the meeting when the failure of Form 700 to sign the written commitment was spoken about.  He was close to the speakers at the meeting.  He understood that obtaining a written commitment from Form 700 was the object of the strike action.  Indeed, when Mr McDonald was asked during the meeting with Mr O’Neill and others soon after the 7am meeting on 15 July, when the workers would return to work, he responded (in evidence given by Mr O’Neill which I have already accepted) “there will be another meeting tomorrow at 7am to see if the commitment to safety had been given”.  It is also clear that Mr McDonald was aware that the action proposed by the workers would be “looked at”, because, having regard to the evidence of Mr McRae, he made mention of that likelihood.  In the circumstances, it is reasonable to infer that Mr McDonald meant, as Mr McRae understood he did, that the action would be looked at as to its lawfulness by the ABCC.  Mr McDonald has not given any evidence in the proceedings to refute the drawing pf what I consider to be an obvious inference.  It follows I consider Mr McDonald was also involved in the contravention of s 38 by virtue of s 48(2)(c).

203                                       For the reasons set out in the preceding paragraph I am also satisfied that Mr McDonald was also aware of the ingredients of the contravention for the purposes of s 48(2)(a).

204                                       In the result I find that Mr McDonald was involved in the contravention of s 38 under s 48(2)(a) and (c).

third issue – whether mr mcdonald’s conduct is taken to be the conduct of the unions

205                                       Section 69(1)(b) of the BCII Act provides, amongst other things, that, for the purposes of the Act, the “conduct of an officer or agent of the association acting in that capacity” in relation to a building association “is taken to be the conduct of the building association”.

206                                       Section 69(3) provides that “an officer” in relation to a building association includes a delegate or other representative of the association and an employee of the association.

207                                       The respondents, particularly the first and second respondent unions, question the applicability of s 69(1)(b) on the facts of this case. 

208                                       The respondents argue that a “stricter approach” to the requirements of proof are required in relation to the application of s 69(1)(b) as it operates in the operates in the context of s 38 – a civil penalty provision.

209                                       In this regard, the respondents refer to the Full Federal Court decision in Hanley v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (2000) 100 FCR 530; [2000] FCA 1188 (Hanley), in relation to the question of vicarious liability under s 349 of the former Workplace Relations Act 1996 (Cth), which required for relevant purposes that the conduct of an officer of the union be engaged in “on behalf of” the union and “within the scope of his or her actual or apparent authority”.  In that context, the Court held it would not be appropriate to use the common law “course of employment” test: at [75] – [76].  The Court emphasised a strict approach to proof in relation to this former vicarious liability provision.  The Court noted, at [76]:

In light of the requirement to prove authority to establish either vicarious liability or liability under s 349, it is next necessary to consider what kind of authority must be proved in each case. If it is sought to be proved that an act was authorised, actual authority must be shown, although the authority might be a broad one, encompassing a class of acts into which the act complained of falls.

210                                       The respondents contend that a similar approach is required in relation to s 69(1)(b).  The particular submission put forward by the respondents is that, “where the applicant needs to prove any element of that section, positive evidence must be produced towards proving that element to the requisite standard and neither ‘inferences from what [the relevant employees] generally do’ nor ‘judicial knowledge’ are sufficient”.

211                                       Accordingly, the respondents submit that it is necessary by reference to s 69(1)(b) for the Commissioner to prove that:

·                    The union respondent in each case is a building association in the meaning given in s 4 of the Act.

·                    Mr McDonald was an “officer” within the meaning of s 69(3) of the Act or agent of the respondent union.

·                    Mr McDonald engaged in conduct in breach of s 38 while he was “acting in that capacity”.

212                                       As the respondents note, it is an agreed fact that the first respondent, the CFMEU, is a “building association”.  It is submitted however that the fact has not been agreed in relation to the second respondent, the CFMEUW; nor was such agreement sought by the Commissioner.  In relation to the CFMEUW it is agreed however, it is an industrial organisation registered pursuant to the Industrial Relations Act 1979 (WA).  The respondents say to be found to be a building association within the meaning of s 4 of the BCII Act, the applicant must prove the second respondent’s eligibility rules allow membership by building employees.  The respondents submit no evidence has been adduced as to the eligibility rules of the second respondent.

213                                       The respondents acknowledge that it is an agreed fact that Mr McDonald is an officer of each of the unions concerned.  The respondents contend however that no direct evidence has been adduced as to the capacity the Commissioner says Mr McDonald is alleged to have acted when he engaged in the conduct said to be in breach of s 38.  The respondents contend there is no direct evidence of what capacity Mr McDonald was acting in during the meeting that occurred on 15 July 2009.

214                                       The respondents further contend that the only evidence of the capacity Mr McDonald acted in at the City Square site has been general evidence as to the understanding of the witnesses Mr O’Neill and Mr Young that he was the Assistant Secretary of the CFMEU, the first respondent.  Mr McRae’s evidence as to Mr McDonald’s capacity is unclear, only stating that he recognised Mr McDonald as an official of the CFMEU through “the media”.

215                                       The respondents submit there is only indirect evidence as to the position of the first respondent, the CFMEU, in relation to the City Square Project and BMC, both being party to an award and collective agreement, and that the first respondent had given an undertaking in relation to Mr McDonald’s entry on to Brookfield Multiplex sites. 

216                                       In all, the respondents contend there is not sufficient evidence for a finding that Mr McDonald was acting in the capacity of an officer or agent of the CFMEU such as to engage s 69(1)(b) of the BCII Act.

217                                       Further, the respondents submit there is no evidence at all for a finding that the third respondent, Mr McDonald was acting in the capacity of an officer or agent of the second respondent, the CFMEUW, such as to engage s 69(1)(b).

218                                       Following the making of oral closing submissions, I gave leave to the applicant to put on short further written submissions.  This was done including in relation to the third issue dealing with accessorial liability.  The solicitor for the CFMEU subsequently expressed concern that these further written submissions went beyond the leave given.  I am satisfied, however, in the circumstances that the further written submissions should be received and considered.

219                                       In relation to the respondents’ submission that the approach stated in Hanley in respect of s 349 of the former Workplace Relations Act 1996 is now required in relation to s 69(1)(b), the Commissioner submits that s 69(1)(b) contains no concept of conduct “on behalf of” a union or conduct “within the scope of actual or apparent authority”.  In the circumstances, however, the significant lesser test of an officer acting in that capacity is all that is required to be met.

220                                       I accept the submission made on behalf of the Commissioner.  As long as the person whose conduct is under consideration is an “officer” in relation to a “building association”, then the person’s conduct “acting in that capacity” – that is to say, as an officer or agent of the association – is “taken to be the conduct of the building association”.  This statutory formula for secondary or accessorial liability avoids using or relying on any concept of the officer or agent having “acted on behalf of” or “within the scope of authority”, actual or apparent.  Ultimately the question is whether the person has acted in the capacity of an officer of the building association in relation to the conduct in question. 

221                                       In that regard, the Commissioner submits there is little doubt in this case that Mr McDonald acted in that capacity on 15 July 2009, having regard to the facts and circumstances previously considered and the subject of my findings in relation to the second issue.

222                                       In my view, there can be little doubt, so far as the first respondent CFMEU is concerned, that the conduct of Mr McDonald in breach of s 38 was as an officer of the CFMEU acting in that capacity.  As noted, the facts that Mr McDonald at material times was an officer of the CFMEU and the CFMEU is a building association, as those terms are defined in the BCII Act, are agreed facts.  The only question is whether the relevant conduct of Mr McDonald was the conduct of an officer of the CFMEU acting in that capacity.

223                                       While there is no evidence directly linking the directing mind of the CFMEU to the conduct of Mr McDonald, such as some direction or practice requiring his involvement in the events that occurred on 15 July 2009, I am of the view that the proper inference to be drawn from all the facts outlined above is that the conduct of Mr McDonald was the conduct of an officer or the CFMEU ­– and, for that matter, the CFMEUW.  The background to the meeting of workers on the site of 15 July was concern that Form 700 had not signed the written commitment to safety that all other sub‑contractors on the site had signed the day before.  Mr McDonald was well known to people such as Mr O’Neill and Mr Young as an officer of the CFMEU ­– and the CFMEUW.  Nothing that was said between Mr O’Neil and Mr McDonald in the morning suggests that Mr McDonald was attending the project site in some non‑official capacity.  The meeting that Mr McDonald attended at 7am on 15 July – although I have found nothing to suggest it was organised or run by Mr McDonald – was called to deal with an industrial issue and it seems that Mr Delaney at least spoke at it.  Mr McDonald was standing nearby.  When the first show of hands seems to have been insufficient to strongly carry the resolution to strike for 24 hours, it was Mr McDonald who spoke up and exhorted workers to, in effect, “stand up for yourselves”.  It was Mr McDonald who then shortly after the meeting spoke with a group including Mr O’Neill and Mr Young and intimated the safety concerns of the workers and that there would be another meeting the next morning to see if the commitment had been given.  It was also Mr McDonald who the next morning, 16 July, spoke with Mr Young and indicated he was at the site to get the workers back to work.

224                                       The reasonable inference from all of these facts is that Mr McDonald was acting at all times, particularly at the workers’ meeting of 15 July at 7am, in the capacity of an officer of the CFMEU ­and the CFMEUW.  It is relevant that neither Mr McDonald nor the unions have gone into evidence to refute this inference.  This enables me more confidently to draw it, as I do.

225                                       In those circumstances, I find, pursuant to s 69(1)(b) of the BCII Act, the conduct of Mr McDonald that I have found to be in breach of s 38 is taken to be the conduct of the first respondent, the CFMEU.

226                                       I also find, having regard to these same facts, that the conduct of Mr McDonald in question on 15 July 2009 was conduct of an officer of the second respondent, CFMEUW, acting in that capacity.  There remains the question, however, whether there is sufficient evidence to establish that the second respondent is a “building association” so as to attract the accessorial liability for which s 69(1) provides.

227                                       In that regard, in the further written submissions of the Commissioner, it is conceded that there is no direct evidence of eligibility rules of the CFMEUW for the purposes of the definition of “building association” in s 4(1) of the BCII Act.  In these circumstances the Commissioner accepts the correctness of the respondents’ submissions in this regard, but asks the Court to infer that a union bearing the name of the second respondent (including the word “Construction”) must have eligibility rules that allow membership by “building employees” namely, persons whose employment consists, or includes building work, or who accept an offer of engagement as an employee for work that consists of, or includes, building work.  Such an inference, it is submitted, is a commonsense and uncontroversial inference to draw.

228                                       A “building association” is defined by s 4 of the BCII Act as follows:

building association means an industrial association whose eligibility rules allow membership by at least one of the following groups:

            (a)        building employers;

            (b)        building employees;

            (c)        building contractors;

whether or not those rules also allow membership by other persons.

229                                       The expression “building employees” is defined by s 4 to mean:

(a)     a person whose employment consists of, or includes, building work; or

(b)     a person who accepts an offer of engagement as an employee for work that consists of, or includes, building work.

230                                       The respondents seem to accept that the CFMEUW is an “industrial association” for the purposes of this definition.  That expression is separately defined in s 4 to include:

(a)     an association of employees or independent contractors, or both, or an association of employers, that is registered or recognised as such an association (however described) under a workplace law (within the meaning of the FW Act);

Here it is an agreed fact that the CFMEUW is an industrial organisation registered pursuant to the Industrial Relations Act 1979 (WA).  On that basis, the second respondent is registered under a “workplace law (within the meaning of the FW Act)”, the FW Act being a reference to the Fair Work Act 2009 (Cth).  Section 12 of the FW Act defines a workplace law to mean:

(a)     this Act; or

(b)     the Fair Work (Registered Organisations) Act 2009; or

(c)     the Independent Contractors Act 2006; or

(d)     any other law of the Commonwealth, a State or a Territory that regulates the relationships between employers and employees (including by dealing with occupational health and safety matters).

231                                        In these circumstances the question is whether the eligibility rules of the CFMEUW “allow membership by at least one of the following groups: building employers, building employees; building contractors; whether or not those rules also allow membership by other persons”.

232                                       Relevantly in this case, the question is whether it may be inferred that the eligibility rules of the CFMEUW allow membership “by … building employees… whether or not those rules also allow membership by other persons”.  As noted above, the Commissioner refers to the word “Construction” in the name of the second respondent and submits that to drawn an inference that the eligibility rules allow membership to building employees is commonsense and uncontroversial.

233                                       For my part, I would be prepared to speculate strongly and to bet on very long odds that the second respondent’s eligibility rules do allow membership by building employees as defined.  However, I think if I were to infer that was the fact I would not be drawing an inference based on established material facts, but simply allowing myself to assume that the rules of a “construction” union provide for the membership of building employees.

234                                       I suspect that, by an oversight, the Commissioner has not adduced evidence or agreed the fact that the second respondent union is a “building association” for the purposes of the BCII Act.  Be that as it may, I am not prepared to remedy the evidentiary deficiency by inferring facts, as strong as my hunch is that the second respondent very probably satisfies the statutory definition.

235                                       In those circumstances, I find that the conduct of Mr McDonald is not to be taken to be the conduct of the CFMEUW and so the second respondent does not incur any accessorial liability under s 69(1)(b) of the BCII Act.

conclusion and orders

236                                       In these circumstances, I would make the following declarations:

1.                  A declaration that the industrial action undertaken on 15 July 2009 by building employees engaged on the City Square Project conducted by Brookfield Multiplex Constructions Limited was unlawful industrial action which involved a contravention of s 38 of the BCII Act.

2.                  A declaration that by his conduct on that day, the third respondent was involved in the contravention within the meaning of s 48(2)(a) and (c) of the BCII Act by the operation thereof is treated as having himself contravened s 38 of the BCII Act.

3.                  A declaration that by the operation of s 69(1)(b) of the BCII Act, the conduct of the third respondent is taken also to be the conduct of the first respondent.

237                                       I will hear further from counsel for the parties concerning the terms of these declarations and the making of submissions concerning what, if any, pecuniary penalties should be imposed against each of the third and first respondents in relation to their contravention of s 38 of the BCII Act and what orders, if any, should be made in relation to the costs of the proceedings.

Associate:

Dated:         23 July 2010