FEDERAL COURT OF AUSTRALIA

John Holland Pty Ltd v Construction, Forestry, Mining and Energy Union (No 4) [2011] FCA 618

THE COURT ORDERS THAT:

1.    The hearing is listed for further four days from 1 to 4 August 2011.

2.    The third and fourth respondents advise the applicant of their election concerning going into evidence within 14 days.

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

RULING ON NO CASE SUBMISSION

1    The applicant, John Holland Pty Ltd (applicant or John Holland), commenced this proceeding by application filed 17 March 2010.

2    In the application and initial statement of claim the applicant claimed relief under the Trade Practices Act 1974 (Cth) (TP Act), the general law of tort and the Building and Construction Industry Improvement Act 2005 (Cth) (BCII Act). However, when the matter came on for final hearing, the applicant pressed only its application for pecuniary penalties against each of the respondents under the BCII Act.

3    The hearing of the application commenced on Monday, 23 May 2011. It was listed for four days, concluding on Thursday, 26 May 2011. At the end of the fourth day of hearing, the matter had proceeded only to the point that the applicant had closed its case, save for the tender of some agreed facts between the parties which had been foreshadowed but not finalised during the course of the hearing to that point.

4    Upon the applicant closing its case on this basis counsel for the first respondent, (Construction, Forestry, Mining and Energy Union or CFMEU) indicated that it wished to make a no case submission.

5    I then made directions that resulted in written submissions being filed, first on behalf of CFMEU and then on behalf of the applicant. Counsel for those parties then made oral submissions on the no case submission on 1 June 2011.

6    These reasons provide my ruling on the no case submission.

question whether no case submission should be permitted

7    Counsel for the CFMEU acknowledged at the outset that the CFMEU elected at this point not to call any evidence in the case but rather to make a no case submission. No question therefore arises in this proceeding whether a respondent/defendant in a pecuniary penalty proceeding can choose to both make a no case submission and then, if not successful, elect to go into evidence.

8    What is clear, however, in these circumstances is that it is only the first respondent, CFMEU, that makes the no case submission and not the third and fourth respondents, Mr Smart and Mr Pallot who are organisers with the CFMEU, or the second respondent, (Australian Manufacturing Workers’ Union or AMWU) and its organiser, the fifth respondent, Mr O’Reilly.

9    In J-Corp Pty Ltd v The Australian Builders Labourers Federated Union of Workers - Western Australia Branch (1992) 111 ALR 377 (J-Corp), French J recognised and applied the flexible approach often taken to the question of elections in the circumstances that arise in this instance.

10    At 381, principally by reference to Stevenson v Barham (1977) 136 CLR 190 at 202203, his Honour noted that even the general rule that a defendant should be called upon to elect before submitting that there is no case to answer must give way to particular circumstances. The discretion of a court to determine a case at an early stage when appropriate has been repeatedly asserted.

11    As to whether one respondent, where there are two or more, should be permitted to put a no case submission where the other respondents do not, French J, at 382, noted that in James v ANZ Banking Group Limited (1986) 64 ALR 347 (James) at 401, Toohey J had observed that arguments against allowing one respondent to make a no case submission are powerful and had been endorsed by the courts on a number of occasions. French J however there noted that the authorities for the most part involved cases where the respondents sued jointly or in the alternative and that Toohey J had seen these decisions as resting “on a broader foundation of convenience and justice to the parties”.

12    French J went on at 382-383 to suggest that the question whether or not to entertain a no case submission by one of several respondents is, like the simple case of one respondent, a matter of proper case management having regard to the interests of justice, including the convenience and economy in time and money that might be achieved in an appropriate case. His Honour considered that the observations of Toohey J in James would not seem to preclude the possibility, for example, that the Court might entertain a no case submission based upon a proposition of law rather than one which goes to the adequacy of the evidence adduced against the party seeking to make the submission.

13    In Hummerstone v Leary [1921] 2 KB 664 (Hummerstone), referred to in James and also in J-Corp, the passengers in a motor car involved in a collision with a truck sued the drivers of both vehicles. On appeal it was held that the stated facts proved by the plaintiffs supported the reasonable inference that prima facie one, if not both of the defendants, was negligent. On that basis it was considered that neither defendant should have been dismissed from the case. Bray J (with whom Lush J agreed) said at 667:

When once a state of facts was proved, as it was, from which the reasonable inference to be drawn was that prima facie one if not both drivers had been negligent, the plaintiffs were entitled to call on the defendants for an answer, and the proper time at which to decide whether on the evidence one defendant or the other defendant or both the defendants were liable was at the close of the whole case.

14    Nonetheless, at 667-668, the Court in Hummerstone accepted that it might happen that a plaintiff suing two defendants in the alternative proved affirmatively that as regards one of them it is impossible to impute blame to him or her and in that case the judge would no doubt be entitled to dismiss him or her from the action.

15    In Menzies v Australian Iron and Steel Limited (1952) 52 SR (NSW) 62, the Full Court of the Supreme Court of New South Wales approved of the practice prescribed in Hummerstone and noted that in a case where the defendants are diametrically opposed in interest, each seeking to exculpate himself and to establish that the other defendant was the person solely responsible, the ordinary rule applicable in the case of a single defendant is not an appropriate rule to follow. Accordingly it was recognised that the practical difficulty of dismissing a defendant out of a case and leaving the co-defendant free to endeavour to shift the burden of notional liability on to the other now disinterested party, is not an appropriate course to take.

16    In the circumstance of the case currently before me, the situation does not present those sorts of difficulties to do with the justice of the case and the interests of an applicant. Primarily questions of whether from a legal perspective the evidence is capable of satisfying a statutory cause of action are raised for consideration. If I were to find that the no case submission contended for by CFMEU is made out, then the case against all respondents would inevitably fail. This would result in the trial not having to be extended, court time and party costs saved and generally speaking the administration of justice served.

17    In these circumstances in the exercise of my discretion I consider it convenient to deal with the no case submission. In this regard I would note that the present case before me differs from the circumstances identified in J-Corp where French J, at 384, took a different view of the relationship between the respondent unions.

The parties

18    The applicant materially pleads that at material times it:

    was a “constitutional corporation” for the purposes of the BCII Act;

    engaged in “building work” as that term is defined in s 5 of the BCII Act;

    was a “building employer” for the purposes of the BCII Act;

    was a party to a number of agreements including with the first respondent and the second respondent respectively concerning the Worsley Alumina Pty Ltd Efficiency and Growth Project.

19    The applicant also pleads that at material times:

(1)    The CFMEU:

    was the employer of the third and fourth respondents (Mr Smart and Mr Pallot);

    is an “organisation” for the purposes of the BCII Act;

    was an registered organisation pursuant to the Fair Work (Registered Organisations) Act 2009 (Cth) and a “body corporate” by virtue of s 27(a) of that Act; and

    was a party to the Worsley CFMEU Agreement;

(2)    The AMWU at material times:

    was the employer of the fifth respondent (Mr O’Reilly);

    was an “organisation” for the purposes of the BCII Act; and

    was a party to the Worsley Metal Trades Agreement;

(3)    The third respondent, Mr Smart, at material times was:

    an officer, employee or agent of the first respondent, the CFMEU, and acted with the scope of his actual or ostensible authority in that role;

    was an officer, employee or agent of the first respondent’s Construction and General Division, WA Divisional Branch; and

    a “person” for the purposes of the BCII Act.

(4)    The fourth respondent, Mr Pallot, was at material times:

    an officer, employee or agent of the first respondent, the CFMEU, and acted with the scope of his actual or ostensible authority in that role;

    was an officer, employee or agent of the first respondent’s Construction and General Division, WA Divisional Branch; and

    a “person” for the purposes of the BCII Act.

(5)    The fifth respondent, Mr O’Reilly was at material times:

    an officer, employee or agent of the second respondent, the AMWU and acted with the scope of his actual or ostensible authority in that role;

    was an officer, employee or agent of the second respondent’s Western Australian Branch; and

    a “person” for the purposes of the BCII Act.

facts not in dispute

20    It is not in dispute on the evidence received between the parties that at about 3pm on the afternoon of 13 January 2010, the tower crane located at the Area 50A Facility on the White Site of the Worsley Alumina Refinery (Refinery) located at Worsley (near Collie), Western Australia collapsed. Area 50A Facility was at that time a part of the package of the Efficiency and Growth Expansion Project at the Refinery in respect of which John Holland was then constructing new processing facilities.

21    It is also not in contention that news of the collapse of this very large crane spread quickly to and around all organisations involved in work on the Project Refinery, so that the applicant and respondent parties and many of their employees, colleagues and members soon became aware of the collapse.

22    It is also not in dispute that on the morning of Friday 15 January 2010 a meeting of persons working at the site occurred in the Red Site car park at the site, these persons including members of the CFMEU and the AMWU.

the case pleaded against the respondents

23    By [7] of the amended statement of claim, the applicant alleges that about 6am on 15 January 2010 the meeting took place outside the entrance to the site and was:

(a)    organised and led by Mr Smart, Mr Pallot and Mr O’Reilly; and

(b)    attended by Mr Smart, Mr Pallot and Mr O’Reilly and a number of the applicant’s employees who were also members of the CFMEU and the AMWU.

24    It is alleged by the applicant in [8] of the amended statement of claim, that during this meeting:

(a)    Mr Smart, Mr Pallot and Mr O’Reilly suggested to the employees present that a vote should be conducted to ascertain whether a majority of employees present wanted to take industrial action in the form of not working that day;

(b)    Mr Smart, Mr Pallot and Mr O’Reilly organised and facilitated a vote of the employees present as to whether or not they wished to participate in industrial action which took the form of not working that day; and

(c)    the employees voted not to work that day.

25    It is alleged in [9] of the amended statement of claim that following the meeting and the vote, on the morning of 15 January 2010:

(a)    Mr Smart, Mr Pallot and Mr O’Reilly spoke to employees of the applicant who had not attended the meeting and informed them of the vote and/or counselled or procured other employees to make the vote and its outcome more generally known among the applicant’s employees; and

(b)    51 of the applicant’s employees engaged in unprotected industrial action by not attending for some or all of their rostered shift on Friday 15 January 2010.

26    The applicant pleads that the conduct referred to variously constituted:

(a)    “building industrial action” for the purposes of s 36(1) of the BCII Act;

(b)    “industrially-motivated” as that term is defined in s 36(1) of the BCII Act in that it was motivated by a purpose that included one or more of the following:

(i)    the desire of the CFMEU and Mr Smart to support or advance claims against the applicant in respect of the applicant’s employees;

(ii)    to advance their own industrial objectives; and/or

(iii)    to disrupt the performance of work.

(c)    “constitutionally-connected” action for the purposes of s 36(1) of the BCII Act;

(d)    was not “excluded” action as that expression is defined in s 36(1) of the BCII Act; and

(e)    thereby was “unlawful industrial action” for the purposes of s 37 of the BCII Act.

27    Accordingly, the applicant alleges that the employees engaged in “unlawful industrial action” on 15 January 2010 in breach of s 38 of the BCII Act, when they did not attend for some or all of their rostered shift on 15 January 2010.

28    The applicant further alleges that the CFMEU is vicariously liable for the conduct of Mr Smart and Mr Pallot, and the AMWU is vicariously liable for the conduct of Mr O’Reilly.

29    Having regard to the facts alleged, the applicant further alleges that all respondents in these circumstances:

(1)    aided, abetted, counselled, procured or induced the contravention of s 38 of the BCII Act;

(2)    were, directly or indirectly, knowingly concerned in or party to the contravention;

(3)    conspired with the employees to effect the contravention; and

(4)    were by reason of these matters “involved in” the contravention.

30    The applicant also alleges that the respondents were “involved in” the employees’ contravention of s 38 of the BCII Act and are to be treated as having also contravened s 38 of the BCII Act, pursuant to s 48(2) of the BCII Act.

31    In these circumstances, the applicant seeks orders that the respondents pay a pecuniary penalty with respect to their breaches of s 38 of the BCII Act.

no case submission

32    Unlawful industrial action: By s 38 of the BCII Act “A person must not engage in unlawful industrial action”.

33    By s 37 building industrial action is unlawful industrial action if:

(a)    the action is industrially-motivated; and

(b)    the action is constitutionally-connected; and

(c)    the action is not excluded action.

34    In this case the CFMEU does not take any point in relation to (c) of this definition. That is not in issue.

35    What is in issue is whether the applicant has necessarily proved, as fundamental building blocks in its case, that relevantly at material times:

    There was “building industrial action”.

    That such action was “industrially-motivated”.

    That such action was “constitutionally-connected”.

36    Building industrial action: The expression “building industrial action” is relevantly defined for the purposes of this proceeding 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.

37    By [19(a)] of the statement of claim the applicant alleges that the conduct referred to in [9(b)] was “building industrial action” as defined.

38    Paragraph 9(b) of the statement of claim pleads that “Following the OffSite Meeting and Vote” (relevantly pleaded in [7] and [8]):

fiftyone (51) of the Applicant’s employees (the employees) engaged in unprotected industrial action by not attending for some or all of their rostered shift on Friday, 15 January 2010 (the Conduct).

39    By the pleading it is central to the applicant’s case that it was the conduct of the employees in not attending for some or all of their rostered shifts on 15 January 2010, following the off-site meeting and vote pleaded in [7] and [8] that constitutes the necessary building industrial action. The applicant thereby has made it clear that it is not any other temporal conduct of employees preceding the meeting or vote that is relied upon. By that pleading the applicant has also made it central that it is the conduct of 51 of the applicant’s employees that constituted the building industrial action. This is confirmed by the particulars given to [9(b)] where it is stated that the employees who took part in the conduct are listed in annexure “A” to the statement of claim.

40    In other words, the applicant has very precisely identified the conduct that is said to constitute the building industrial action as the conduct of 51 identified employees who did not attend for some or all of their rostered shift on 15 January 2010, following the offsite meeting and vote pleaded in [7] and [8].

41    The CFMEU contend that the following is the state of the evidence, from which, taken at its highest – that is to say, if the Court takes and accepts this evidence for the purpose of making a no case ruling – fails to prove the building industrial action pleaded.

42    The CFMEU put their contention this way:

    Whilst it is not disputed that there was an off-site meeting on 15 January 2010, regardless of whether there was a vote to take industrial action by failing or refusing to attend for work, the applicant has failed to adduce any evidence that the 51 employees named in annexure “A” either attended the off-site meeting on 15 January 2010; or failed to attend for work on 15 January 2010 following the off-site meeting and the vote.

    The applicant adduced evidence from Mr Noel Brown, Mr Lee Shaw, Mr David Gwilliam and Mr Ryan Carrington. Neither Mr Shaw nor Mr Gwilliam were present at or observed the meeting on 15 January 2010.

     Mr Brown physically attended the meeting on 15 January 2010 but did not give any evidence identifying any employee of the applicant who attended the off-site meeting, let alone any of the 51 employees pleaded; or that any of the 51 employees failed to attend for work following the off-site meeting, let alone the 51 employees pleaded.

    No inferences can be drawn from the evidence of Mr Brown about who attended the meeting, or who failed to attend for work following the off-site meeting.

    Mr Carrington observed the meeting from the security hut adjacent to the carpark where the meeting was held but under cross-examination admitted:

(1)    he did not personally know all of the employees named in what is annexure “A”;

(2)    he did not know whether any of the employees attended the off-site meeting because he could not identify any of the approximately 200 persons who attended the meeting;

(3)    he did not personally know whether the employees failed to attend for work on 15 January 2010.

    In the absence of Mr Carrington being able to identify that the employees actually attended the off-site meeting, there is no fact from which it can be inferred that:

(1)    the 51 named employees did attend the off-site meeting;

(2)    if those 51 employees failed to attend for some or all of their rostered shift on 15 January 2010, that they failed to attend following the off-site meeting and the vote, and therefore because of that.

    The conclusion of Mr Carrington that the employees named in what is in effect annexure “A” did not attend for work on 15 January 2010 and had taken industrial action was, at the conclusion of his evidence, clearly a conclusion unsupported by any facts and constituted speculation and assumption. His evidence might be summarised as follows:

(1)    where, following comparison, there was a correlation between the prestart sign in sheets, gate swipe records and daily timesheets and payslips for persons who had attended work could be verified;

(2)    he did not do the comparison and correlation exercise by comparing the various documents but rather instructed his assistant to do so;

(3)    he did not verify the exercise done by his assistant, but only checked four or five names against the documents but otherwise accepted the work she had done;

(4)    he did not speak to any of the 51 employees to ascertain if they did not attend work, or why they did not attend work;

(5)    claimed that where there was a lack of correlation between the documents, a further investigation would have been conducted by his assistant calling the supervisors directly as per his instructions;

(6)    conceded that he could not provide any evidence to confirm that any further investigations were done by his assistant into the records of the employees nor did he speak to any supervisors;

(7)    accepted that there was no code for recording “industrial action” in the daily timesheet system, called “Timezone”, for the reason for non-attendance of an employee;

(8)    alleged that the supervisors had been wrongly using the codes of “Absence”, “Absence Leave” and “Absence Part Day” in an attempt to explain why the daily timesheets had unexplained and inconsistent use of the codes;

(9)    conceded that it was only speculation by him as to why 12 employees on annexure “A” had gate swipe records suggesting they had already entered the site before the off-site meeting commenced, had not attended the meeting and had attended work on 15 January 2010;

(10)    conceded that it was only speculation by him as to why those 12 employees had left work sometime in the course of the day;

(11)    could not explain how they came to be on what is annexure “A”;

(12)    could not explain why there were no records explaining their attendance or otherwise apart from payslips for six names on that document, annexure “A”;

(13)    could not explain why there were no records at all provided by the applicant for one employee on that document;

(14)    could not explain why 29 employees of the 51 were listed under the code “Absence” in the daily timesheets apart from speculating;

(15)    could not explain why one employee the list was listed as “Absence Leave” in the daily timesheets;

(16)    could not explain why six employees were listed as “Absent Part Day” in the daily timesheets whilst also being recorded as working for part of the day;

(17)    could not explain why 11 persons listed in the prestart sign in sheets as rostered on did not sign in to indicate attendance at work or explain their non-attendance, yet were not listed in annexure “A” as taking unlawful industrial action;

(18)    conceded that he did not know from looking at the records why employees in the annexure “A” list had been listed as being on strike.

    The Court could not accept that the records upon which the conclusion in made by Mr Carrington that the 51 persons listed in annexure “A” had gone on strike, in effect, contained any evidence from which it could be concluded or inferred that the employees in fact failed to attend work on 15 January 2010 because they were taking industrial action following the off-site meeting and alleged vote.

43    The applicant by way of response to this aspect of the no case submission, submits that when one has regard to the following facts, proved by the evidence, the Court is entitled to conclude that the pleaded conduct was building industrial action for the purposes of s 36, as well establishing that the conduct was “industrially-motivated” and was “constitutionally-connected action”. Focusing on the question of whether building industrial action has been established by the evidence taken as its highest, for the moment, the applicant relies on the following facts being found or inferences being reasonably drawn from facts as follows:

    A meeting was held at the Redside carpark on 15 January 2010 which was attended by a large group of employees, including employees of the applicant (one of whom was Mr Noel Brown);

    The meeting was organised and led by, amongst others, the third and fourth respondents, Mr Smart and Mr Pallot, who are employees of the CFMEU, and who at all times acted within the actual or apparent scope of their authority as union organisers and employees of the CFMEU;

    These union officials who led the meeting did so by standing on the back of a utility and taking turns speaking to the crowd about matters including the tower crane incident on 13 January 2010, the use of a second tower crane on the site, the applicant’s response to that incident, the applicant’s record of health and safety, and issues relating to health and safety generally on the site affecting, amongst others, the applicant’s employees;

    One or more of the union officials standing on the back of the utility said words to the crowd (more than once) to the effect of: “John Holland is a pack of c….”;

    Towards the end of the meeting, one of the union officials standing on the back of the utility proposed a vote to the crowd to the effect that all those present in favour of not working that day should say “Aye” (the vote);

    To the extent that the vote was proposed by one official, it was a part of the common conduct of all of the officials standing on the back of the utility at the time such that the third and fourth respondents may be taken to have both suggested to employees that a vote be taken, and organised and facilitated the vote which was taken;

    In response to the call by the union officials for a vote to take strike action, the majority of persons present at the meeting voted to take strike action and not work that day;

    The applicant’s employees who were rostered to work on 15 January 2010 were required to start their day shift at 7am, and to attend a pre-start meeting at that time;

    Between 6am and 9am, a large group of employees (including employees contained within annexure “A”) left the site;

    A large group of employees (including employees contained within annexure “A”) who had been rostered to work on 15 January 2010 did not present for their rostered shift that day;

    A large group of employees (including employees contained within annexure “A”) who had been rostered to work on 15 January 2010, and who had attended the 7am pre-start meeting, left the site between 7am and 9am and did not complete the remainder of their shift that day;

    The conduct of the applicant’s employees described in these last two bullet points involved a failure or refusal by persons to attend for building work, which was not authorised or agreed to in advance or in writing by the applicant; and

    the conduct referred to in the preceding bullet point on the part of the employees was motivated by one or more of the following purposes:

(1)    supporting or advancing claims against the applicant in respect of the     employment of employees of the applicant, the relevant “claims” in this     instance being for safe work environment;

(2)    advancing the industrial objectives of the CFMEU; and/or

(3)    disrupting the performance of work.

44    An important plank in the no case submission concerning whether or not the pleaded building industrial action has been made out in respect of the 51 employees listed in annexure “A” to the statement of claim, is whether the evidence of Mr Carrington assists either directly or in establishing facts from which inferences can be drawn.

45    It may be said at this point in a preliminary way that the extensive cross-examination of Mr Carrington, upon which the no case submission relies in many ways, disclosed that the opinion he had expressed in his affidavit evidence, to the effect that the 51 persons identified by him had taken unlawful industrial action following the meeting on the morning of 15 January 2010, was not an opinion that he could express from his own firsthand knowledge.

46    I accept this contention. Mr Carrington, following the formation of a belief following the events of the morning of 15 January 2010, instructed his assistant to ascertain how many employees of John Holland had failed to call in for work that day, or who called in for work that day but left following the meeting. Mr Carrington plainly believed that if his assistant were to interrogate certain data maintained by the applicant, then inferences could be drawn as to who had “gone on strike” following the meeting attended by the union officials.

47    Accordingly, he instructed his assistant to consult: the pre-start sign-on records, by which one would expect to see a reliable record, in accordance with the usual practice of the applicant and its employees, of who had signed on for the shift (being the only shift relevantly) that commenced at 7am on 15 January 2010; the daily timesheets maintained by supervisors of employees which are later in the day entered into the Timezone computer record and showing, in accordance with usual practices, for salary purposes, whether an employee had carried out work that day, or had been absent or engaged in some other activity in relation to which the supervisors are ordinarily instructed to denote a code (such as “Absent”, “Absent Part Day”, “Absence Leave”); and the gate swipe records, which, for security purposes, disclose the time an employee or other person enters the John Holland site or exits the John Holland site.

48    Mr Carrington held the view that if the entries correlated in the sense that the employee appeared in each of those records as having been present at the John Holland site throughout the day on 15 January 2010, then the applicant could safely assumed they attended work, but if all three records failed to correlate, in the sense that the employee was not shown by any of the three records to have remained on site and/or carried out work, then it could be assumed that he or she did not attend for work that day or left early.

49    While the correlation technique was the primary means of determining the list of persons whose names ultimately appeared in annexure “A”, as explained in Mr Carrington’s affidavit, he went on to explain in cross-examination that in fact, if there were any queries, he instructed his assistant to follow up with supervisors to ascertain whether a person had in fact been absent from their rostered shift.

50    It follows then, that Mr Carrington could not himself give any direct evidence about any follow up inquiries that were made, if they were made, by his assistant or any other information that may, or may not have, been received from supervisors that may, or may not have, helped to refine the list of 51 employees in annexure “A”.

51    All that Mr Carrington was able to do, and the only reason why, in relation to this point, his evidence has any relevance, is that he was then cross-examined at length about the apparent consistency of the analysis made by his assistant, that he relied upon, in reviewing the three sets of records in order to produce the annexure “A” list. For example, there seemed to be persons whose names did not appear on that list but in relation to whom the data suggested they should have been included as absent without approval.

52    Perhaps to cut a long analysis of the relevance of Mr Carrington’s evidence in this regard short, through the process of cross examination it may be said that Mr Carrington was led to express the view that he believed that it was open to infer, having regard to these records of the applicant, that the persons whose names appeared on annexure “A” had either not attended for work or had left work early having attended for work following the meeting and vote that morning, that is to say, because they had determined (either collectively because they were at the meeting when the vote was taken) or individually (later having been informed about what was discussed and voted upon at that meeting) to “strike”.

53    In effect, the applicant through counsel recognised that the evidence of Mr Carrington stands no higher than identifying the records of John Holland that have some relevance to the question at hand, namely, whether or not there was any building industrial action taken by the 51 employees listed in annexure “A”. But otherwise the opinion of Mr Carrington concerning what inferences, if any, can be drawn from those records, is not for him to express, but for the Court to form.

54    I consider, having regard to the evidence of Mr Lee Shaw, one of two package managers for the applicant on the site at material times, Mr Noel Brown, an employee of the applicant at material times, who attended the meeting on the morning of 15 January 2010, and particularly the evidence of Mr Carrington and the records that were put to Mr Carrington in cross-examination that went into evidence, that the following facts are reasonably established or may be inferred:

(1)    Employees of the applicant were rostered to work on 15 January 2010;

(2)    These employees were mostly rostered to start a dayshift at 7am;

(3)    These employees were to attend a pre-start meeting at that time;

(4)    A meeting was held in the Redside carpark between about 6.40am and 7am on 15 January 2010 which was attended by a large number of people including employees of the applicant (one of whom was Mr Brown);

(5)    The third and fourth respondents led the meeting in the sense, at least, that they were the persons who stood on the tray of a utility and took turns to speak to the crowd;

(6)    A number of employees who were expected to sign in at the pre-start meeting on 15 January 2010 failed to do so;

(7)    A number of employees who did sign in at the pre-start meeting that day left that day before 9am, before their scheduled roster had concluded;

(8)    Some of the employees listed in annexure “A” were amongst the employees who did not present for their rostered shift that day;

(9)    Some others listed in annexure “A” were amongst those employees who attended the 7am pre-start meeting but left the site between 7am and 9am that day.

55    As to why employees listed amongst the 51 in annexure “A” did not present for their roster at all that day, or why those who did roster on but then left the site between 7am and 9am without completing their shift that day, did not present or left early, respectively, there is presently no direct evidence.

56    The CFMEU say that there is no evidence that any of these 51 employees attended the meeting, and that the evidence suggests that those who signed the pre-start roster sheet did not in fact attend the meeting; and so it requires the applicant, and the Court, to take a very large leap to join their absence or early departure to whatever was said at the meeting.

57    There does however need to be some caution taken in relation to what is required to satisfy the definition of building industrial action and the pleaded case.

58    It is not in my view necessary in relation to proving that there was relevant “building industrial action” at the same time to prove that it was motivated by some particular purpose or that it was connected with some particular event (which of course would imply that it happened for some particular purpose).

59    I therefore do not think it is correct to say, as the CFMEU submit, that the pleading of the applicant in [19(a)] and [9(b)] of the statement of claim requires, in effect, the applicant to prove that the non-attendance for some or all of the rostered shifts that day was “due to what occurred at the off-site meeting and as a result of the vote”. I accept that, where the applicant pleads in [9] that “Following the Off-Site Meeting and Vote”, all that is intended is that, as a matter of fact, following those things, the pleaded non-attendance occurred. As noted above, this pleading helps to identify precisely which employees the applicant says engaged in unprotected industrial action. It does not include, for example, any employees who may not have attended some or all of their rostered shift prior to the off-site meeting and vote.

60    As noted above the definition from s 36(1)(d) of building industrial action focuses on the “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”. If the concept of “refusal” to attend for building work or to perform any work at all where a person has attended, means, as I think it must, that a request or demand for performance has been rejected, expressly or constructively, then there is no evidence to indicate any refusal by any of the 51 employees in annexure “A” in this instance.

61    If however the meaning of “failure” to attend for building work or to perform any work at all having attended, is a difficult test, and simply comprehends, as I think it must, the failure to attend or perform having attended, where there is an obligation to attend or perform, then I think on the evidence led it cannot be said that the applicant has failed to make out this part of the definition.

62    This is because the evidence I have referred to, particularly the various documents put in through cross-examination of Mr Carrington, suggest that one way or the other the 51 persons listed in annexure “A” either failed to attend for building work, that is to say, their rostered shift on 15 January or, having attended for their rostered shift and signed on, failed to perform any work that day, or performed some work but not all the work they were expected and obliged to do that day.

63    I draw the inference that not only were the persons who signed the pre-start shift themselves expecting to work that day – or they would not have signed on – but, from the evidence of Mr Carrington, that the other 50 persons making up the 51 persons in annexure “A” were employees of the applicant who were expected at work that day under their contractual duties. The fact that those other persons were variously mentioned in one or other of the timesheets, the salary slips (and less so the gate records) enables that reasonable inference to be drawn.

64    In short, I am satisfied that there is sufficient evidence, taking the applicant’s case at its highest at this point, to enable the Court to conclude that the conduct pleaded constitutes “building industrial action” for the purposes of s 36 of the BCII Act.

65    To make that clear, I think it is important not to conflate the question of whether “building industrial action” has been proved with the question whether such action was “industrially-motivated”. I consider that the submissions of the CFMEU, that focus on the question whether the applicant has established a relevant reason why any of the person in the annexure “A” list either did not attend their rostered shift or left the shift early, to impermissibly run these two issues together.

66    It follows that I also do not consider that the pleading of the applicant in [19] and [9] creates the problem that the CFMEU seeks to attack.

67    I therefore reject the no case submission on this point.

68    Industrially-motived: The next question in determining if the applicant has proved unlawful industrial building action, is whether the building industrial action identified was “industrially-motivated”.

69    Section 36 provides that “industrially-motivated” means motivated by one of 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.

70    In this instance, the applicant contends that the building industrial action was motivated by one or more of the following purposes:

(1)    supporting or advancing claims against John Holland in respect of the employment of employees of that employer, in relation to health and safety concerns;

(2)    advancing industrial objectives of an industrial association, namely the CFMEU;

(3)    disrupting the performance of work – being work that the applicant had scheduled that day.

71    That, at least, is the way that counsel for the applicant put the purposes that are said to have motivated the building industrial action in oral submissions, although I note, as the CFMEU point out in their submissions, [19(b)] of the statement of claim, in the particulars, says that the building industrial action was motivated by a purpose that included:

(a)    the desire of the first and third respondents to support or advance claims against the applicant in respect of the applicant’s employees.

72    I accept however the way the submission is put in the no case submissions of the applicant, the identification of the claims being in respect of health and safety concerns as against the applicant, is a refinement of the expression of purpose in (a) of [19(b)] of the statement of claim.

73    In my view there is no evidence to support a finding that the building industrial action I have identified was motivated by a purpose that included the purpose of the first and third respondents (or the first, third and fourth respondents) advancing their own industrial objectives. At the very highest, the evidence is that Mr Smart, as an organiser of the CFMEU, having become aware of the crane incident on 13 January 2010, and having met Mr Carrington on-site, was then by inference instrumental in organising a report back meeting to members of his union, probably by arrangement with the second respondent so that its members might also receive a report back on the incident and that he spoke at the meeting on the morning of 15 January 2010, perhaps in an animated way. There is little evidence to show that Mr Smart or Mr Pallot were responsible for using “cuss” words as Mr Brown described them, but that to the extent that such words were used it is plain they were used at a reasonably robust meeting, where there was concern about industrial health and safety and were directed towards the applicant and Bechtel.

74    None of this, in my view, can be characterised as conduct which by itself was to advance the industrial objectives of the CFMEU or Mr Smart (or Mr Pallot). It follows that if their conduct cannot be so characterised, then it is difficult, if not impossible, to impute to the 51 employees of the applicant listed in annexure “A” who failed to attend for their rostered shifts or left their rostered shifts early, that they took such action in order to advance the industrial objectives of the CFMEU, or its organisers. It must be remembered in this context that the relevant purpose is advancing industrial objectives of an industrial association – not the employees themselves.

75    I also do not consider that there is any evidence to prove that, as a matter of fact, the building industrial action of the relevant employees constituting failure to attend work or having failed to perform work having attended, was motivated by a purpose that included the purpose of “disrupting the performance of work”. As I explained in Australian Building & Construction Commissioner v Construction, Forestry, Mining and Energy Union [2010] FCA 784; (2010) 187 FCR 293; (2010) 198 IR 255, the consequence of building industrial action may be that work is disrupted, but whether or not “disrupting the performance of work” was the purpose that motivated the industrial building action is another question and is a question of fact: see at [120][121].

76    In my view there is no evidence that has been lead to suggest that the employees were motivated by the purpose of disrupting the performance of work when they took the action of failure to attend work or having attended work failed to perform work.

77    Therefore, the critical question, for me, is whether it may be said, as contended on behalf of the applicants, that the building industrial action, as I have characterised and found it to be, was motivated by the first purpose contended for by the applicant, namely, supporting or advancing claims against the applicant in respect of the employment or employees or the applicant, namely advancing claims in respect of occupational health and safety.

78    It is in respect of this particular alleged purpose that the earlier submissions of the CFMEU once again becomes relevant. This is because, while it might generally be concluded that the persons, including employees of John Holland who attended the meeting on the morning of 15 January 2010, generally (but not unanimously having regard to the evidence of Mr Brown who plainly did not support the sentiment), supported a vote that all those present who were in favour of not working that day should say “Aye”.

79    Taking the applicant’s case at its highest, which means relying on the evidence principally of Mr Brown, who was at the meeting and quite close to the back of the utility on which the union organisers stood and spoke, the principal concern expressed by the speakers on the back of the utility, responded to apparently by “voices in the crowd”, was the question of occupational health and safety on the site in the light of the tower crane collapse and rumours that it may possibly have endangered the lives of workers on the site. Concerns were expressed in this manner, not only in respect of the applicant but also Bechtel. Concerns were also expressed that insufficient information was being relayed to workers on the site, although the accident was still recent, investigations were underway and more information could be expected.

80    In all of these circumstances, as I say, taking the applicant’s case at its highest, there is evidence to support an inference that employees of the applicant who did not attend their rostered shifts on the morning of 15 January 2010 or who, having rostered on, left their rostered shifts early, between 7am and 9am that morning, probably did so, that is to say, on the balance of probabilities did so because they wished to express their concern to John Holland, and possibly to Bechtel, that occupational health and safety needed to be taken extremely seriously on their site in light of a serious crane accident which they either directly knew about or had heard about, either at the meeting on the morning of 15 January 2010 or, on the grapevine, soon afterwards.

81    Against the drawing of such an inference, CFMEU contend that there is no evidence as to which, if any of the 51 employees listed in annexure “A” attended the meeting and that, so far as some of the 51 had rostered on for work at 7am, plainly that group did not attend the meeting; and that it cannot therefore be said that any of the 51 had any knowledge or information from which it can be inferred that the building industrial action, as I have characterised and found it, was motivated by the purpose of supporting or advancing such occupational health and safety claims against the applicant or Bechtel.

82    Constitutionally-connected: However, as I say, having regard to all of the evidence, having regard to the sequence of events that includes the meeting, the general tenor of the discussion at the meeting, the records of the applicant put in during cross-examination of Mr Carrington, and the evidence of Mr Carrington, there seems to have been an unusually large number of absentees or employees going home early before the completion of their shift on 15 January 2010. Having regard also to the more general evidence of Mr Brown that a good number of his team (all employees of the applicant) did not remain for work – which I infer in the circumstances was an unusual event – and the general evidence of Mr Shaw that a good number, about half of his crew, were not available for much of the day – which I also infer in the circumstances was an unusual event – I am satisfied that the inference may reasonably be drawn that the 51 employees who took industrial building action, as I have characterised and found it, were motivated to do so by the purpose of advancing or supporting claims against John Holland or Bechtel that occupational health and safety on the site needed to be taken seriously in light of the serious tower crane collapse two days earlier.

83    The third and final component of the definition of unlawful industrial action is that the building industrial action was “constitutionally-connected”.

84    The term “constitutionally-connected” action is defined by s 36(1) to mean building industrial action that satisfies at least one of the following conditions:

(a)     the action is taken by an organisation;

(b)     the action is taken by a constitutional corporation, or adversely affects a constitutional corporation in its capacity as a building industry participant;

(c)    the action is taken in connection with an industrial dispute;

(d)    the action relates to work that is regulated by a Commonwealth industrial agreement;

(e)    the action relates to the bargaining or proposed bargaining for, or the making or proposed making of, an collective agreement under Div 2 of Pt 8 of the Workplace Relations Act;

(f)    the action occurs in a Territory or Commonwealth place.

85    In this proceeding the applicant specifically pleads in [19(c)] of the statement of claim that the building industry action was relevantly:

    taken by an organisation;

    affected a constitutional corporation in its capacity as a building industry participant;

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

86    As noted it is not necessary that all the conditions be satisfied, only that at least one of the conditions be satisfied in order to establish that the action was at material times “constitutionally-connected”.

87    The contention of the CFMEU is that the applicant has adduced no evidence to prove any of these grounds of connection.

88    As to the pleading that the building industrial action was taken by an organisation, CFMEU contends that this plea flies in the face of the plea in [9(b)] of the statement of claim that the building industrial action constituting the contravention was conduct taken by the employees in failing to attend for work on 15 January 2010 following the off-site meeting and vote, in that the pleaded conduct was that the conduct was by the employees, not an organisation, and not by the first respondent.

89    The CFMEU further contends that the applicant’s plead is not that the alleged conduct of the third and/or the fourth respondent (and therefore the CFMEU) in organising, leading and conducting the off-site meeting and facilitating the vote constituted the building industrial action. The conduct of the first, the third and fourth respondents is not pleaded as being a contravention, but rather the basis for accessorial and vicarious liability for the contravention of the employees of the applicant.

90    It seems to me that there is no evidence, as contended by CFMEU, that the building industrial action, as I have characterised and found it, was taken by an organisation, being the CFMEU or any other organisation.

91    Nothing in the written submissions filed on behalf of the applicant appears to contend otherwise and I did not understand counsel for the applicant in her oral submissions to press this aspect of the claim.

92    The next aspect of this issue is whether there is evidence to show that the building industrial action “adversely affects a constitutional corporation in its capacity as a building industry participant”.

93    There are two aspects to this condition, the first being whether there is a constitutional corporation which is a building industry participant, and secondly whether the action complained of “adversely affects” that corporation in its capacity as a building industry participant.

94    On the face of it the applicant is a duly incorporated corporation. That much is admitted on the pleadings of all respondents. The evidence also discloses that it is a building industry participant as it is a building employer. See s 4 definitions. The question raised by the CFMEU is whether there is any evidence to show that it was “adversely affected” in its capacity as a building industry participant in order to satisfy this condition.

95    CFMEU submits that apart from Mr Shaw’s evidence that the applicant had approximately 280 to 300 workers on the site about 13 January 2010 there was no evidence adduced by the applicant at all as to:

    the applicant’s duties, rights and obligations under the contract pleaded in the statement of claim [1(a)(iv)] and [2] with the principal contract or Bechtel, because that contract was not tendered in evidence;

    what tasks the employees were scheduled to perform on 15 January 2010 were not performed;

    any consequences from the loss or damage incurred as a result of the non-attendance of 51 employees in question.

96    Thus, the CFMEU submits that in the absence of any evidence there are no facts from which it can be inferred that the conduct of the employees had the required adverse affect on the constitutional corporation in its capacity as being an industry participant in order to satisfy this condition.

97    The applicant’s response concerning satisfaction of this particular condition was principally made in the oral submissions of counsel. Counsel submitted that it is not necessary for the direct evidence of monetary loss or damage to be led in order to prove that the building industrial action taken “adversely affects” a constitutional corporation in its capacity as a building industry participant.

98    In my view there is nothing in the expression “adversely affects a constitutional corporation in its capacity as a building industry participant” that requires proof of financial or monetary loss or damage to make out the relevant adverse affection. No doubt if direct evidence of financial or monetary loss or damage is led then that is likely to put the question of adverse affection in the relevant sense beyond doubt.

99    However in my view building industrial action may adversely affect a constitutional corporation in its capacity as the building industry for any number of reasons. I accept however, and this is a submission made on behalf of CFMEU, that a question may arise whether a particular action merely “affects” the corporation in the relevant way short of “adversely” affecting it.

100    I have today, an hour or so prior to handing down this reserved decision on the no case submission, received from my Associate an email from counsel for the applicant, drawing the Court’s attention to the following cases in connection with the meaning of “adversely affects” where that expression appears in the definition of “constitutionallyconnected” in s 36, namely, Cruse v CFMEU [2009] FMCA 236 (Cruse), HA Bachrach Pty Ltd v Minister for Housing (1994) 85 LGERA 134 (Bachrach) and Australian Building Construction Commissioner v Construction, Forestry, Mining and Energy Union [2009] FCA 1092 (ABCC v CFMEU). I have also received from my Associate a copy of an email she has received from counsel for CFMEU responding to the relevance of these cases in which counsel submits that Cruse and ABCC v CFMEU were both cases where the industrial action was not in dispute amongst the parties and there was formal agreement by statement of agreed facts that the action was constitutionally-connected, at least in the former case, without evidence being required and that this sufficiently distinguishes the utility of these references by counsel for the applicant. Counsel for CFMEU also doubts the likely relevance of the Bachrach case given that it has nothing to do with the BCII Act.

101    I have had the opportunity to look at the passages of these three cases to which counsel for the applicants referred in more detail in her email. None of them relevantly assist me in the interpretation of the expression “adversely affects” as it appears in the relevant definition of “constitutionally-connected”, save that the Bachrach decision, at 137, by reference to other authority, some of which I have also briefly looked at, confirms a view that in the interpretation of the expression, albeit in other statutory contexts, it has been broadly interpreted. Otherwise I have been unable to draw any useful guidance from these cases.

102    All that said, there is nothing in the use of the adverb “adversely” in relation to the verb “affect” that suggests the affect should be of a certain qualitative or quantitative nature, or importance or significance, before it can be considered adverse.

103    I am prepared just the same to accept that the utilisation of the adverb “adversely” in this statutory context means that in determining whether an action has adversely affected a constitutional corporation in its capacity as a building industry participant may well raise questions of fact and degree. That is to say, there may be circumstances in which, while there is some inconvenience, for example, from a building industrial action, it may, taking all the circumstances into account, as a matter of fact and degree, not be sufficient to result in a finding that the constitutional corporation in its capacity as a building industry participant was “adversely” affected by that action.

104    This discussion plainly suggests that the adverb “adversely” is used in the statutory context not as a term of art but according to its ordinary meaning. The Macquarie Dictionary (Fourth Ed) mentions the adverb “adversely” by reference to the definition of the adjective “adverse”, for which it offers a number of meanings, including these four:

1    antagonistic in purpose or effect: adverse criticism, adverse to slavery.

2    opposing ones’ interests or desire: adverse fate, adverse fortune, adverse influences, adverse circumstances.

3    being or acting in a contrary direction; opposed or opposing: adverse winds.

4    opposite; confronting: the adverse page.

Of these antagonistic in purpose or effect and being or acting in a contrary direction; opposed or opposing, are perhaps the most relevant.

105    The primary contention of the CFMEU is that there is no evidence to show exactly what the duties, rights and obligations of the applicant are under the contract it has with Bechtel, because the contract was not tendered and just what the tasks of the employees were to be on 15 January 2010 that were not performed are not established by the evidence; and as a consequence loss or damage incurred as a result of non-attendance of employees is not established.

106    As I have just suggested, however, the question of financial monetary loss or damage is not the be all and end all of proving adverse affection in these circumstances. What is also relevant, as the CFMEU by its submissions effectively acknowledge is, that there should be consequences that may be characterised as having “adversely” affected the constitutional corporation in its capacity as a building industry participant. The CFMEU’s argument is that in the absence of details of the building contract between the applicant and Bechtel and some understanding of what the tasks of the employees were to be on 15 January 2010, the Court is left to speculate about what those consequences might have been in order to make any assessment of the extent of the affect the building industrial action had, if any, on the applicant.

107    The submission of counsel for the applicant ultimately is that if the workers did not attend for work then that is sufficient to establish an adverse affect. As I apprehend the submission of counsel it is that, having regard to the evidence generally received by the Court from the various witnesses called by the applicant, including the general description of the project being carried out on the site, it can reasonably be inferred that building industrial action that comprises the non-attendance or the early departure from a rostered schedule due to start at 7am in the morning on 15 January 2010 of 51 employees, when the evidence suggests that any time there are 280-300 employees engaged in the work of the applicant on the site, is sufficient evidence from which the Court can infer that the building industrial action adversely affected the applicant as a building industry participant on 15 January 2010.

108    It is reasonable to say, in light of the submissions, that the Court has very little evidence before it of the tasks actually performed at the material times by employees of the applicant generally and by the 51 employees in annexure “A” in particular. The Court knows the work John Holland were then engaged to perform was substantial. The Court knows that the use of the tower crane, in particular, involved a substantial undertaking.

109    Mr Brown’s evidence, mentioned briefly above, was that he usually works with a crew of 20 men, at the Efficiency and Growth Expansion Project and “most of them” did not turn up to work on that day. Three apprentices attended, “However the rest of the crew did not come to work after the union meeting”. Mr Brown added, however, that he was aware that two workers did not come to work because they were either on sick leave or annual leave at the time of the meeting.

110    Mr Shaw, one of the two package managers for the Efficiency and Growth Expansion Project at the time, and who acts as the overall manager of construction in certain parts of the site covering resourcing, equipment and scheduling costs and performance of those areas to enable construction to get to a commissioning stage, said he did not see the meeting of workers on the morning of 15 January 2010. At 6am, he was having a pre-start meeting with his team at 50A facility, crib huts and offices. He said that “Half my workers did not turn up for work at 7am”.

111    Mr Shaw described the Efficiency and Growth Expansion Project as one involving the construction of new processing facilities to upgrade the site’s alumina production capacity. Mr Gwilliam, an area superintendent, and Mr Carrington, the HR/IR Manager for the Efficiency and Growth Expansion Project, described the project in similar terms.

112    In his affidavit filed 20 April 2011, Mr Carrington, by way of response to affidavits filed in the proceedings (but not yet tendered in evidence) of Mr Hayes and Mr Baker, on behalf of the second respondent, said that the applicant does not perform and will not perform civil works on the project as that is the role of Thiess and Picton Civil. He said, at [6], that it is correct to say that the employees of the construction contractors on the project are engaged in a range of classifications which include riggers, scaffolders, welders, electricians, boilermakers, trades assistants, mechanical fitters and other construction trades and this is also correct, in so far as it applies to the applicant, with the exception of electricians who John Holland do not employ.

113    He also confirmed in [7] and [8] that the employees of the applicant who are employed to work on the project had their employment regulated by one of the two agreements, namely that which is colloquially known as the Worsley CFMEU Agreement and that which is colloquially known as the Worsley Metal Trades Agreement.

114    He did not agree, however, with the proposition that the applicant employs a majority of persons employed to work on the project and said that at the time of the crane accident on 13 January 2010, Thiess employed similar numbers to the applicant and at the “present time” (April 2011), Monadelphous employed similar numbers to the applicant.

115    Exhibit 1, the parties agreed bundle of documents numbered 4, 5 and 6, includes a map of the Worsley Alumina Refinery Facility layout, two Google Earth satellite images of the refinery site and a number of photographs apparently depicting the tower crane accident on 13 January 2010. These documents generally give some indication of the area and nature of the site.

116     This evidence, taken on whole, supports the inference that there was a reasonably significant disruption caused to the applicant’s work schedule on 15 January 2010 by reason of the non-attendance or early departure from rostered work of employees and that the building operations of the applicant were thereby adversely affected by the building industrial action.

117    Given that it is only necessary for the applicant to prove one of the conditions in the definition of constitutionally-connected, I find that there is evidence to establish that component of the definition.

118    In these circumstances, it is not necessary to deal with the question of whether the contract between the applicant and Bechtel pleaded in the statement of claim, and referred to by Mr Carrington, but which was not received into evidence, was conceded in admissions or exchanges or submissions between counsel effectively to be in evidence.

119    It is also not necessary to consider the further argument put by CFMEU that the applicant has not established that the action related to work “regulated by Commonwealth industrial agreement”.

120    The position of the CFMEU is that in this regard the applicant in [19(c)] of the statement of claim, failed relevantly to:

    Plead that the Worsley CFMEU Agreement referred to in [1(a)(vii)] and [1(c)(iv)] of the statement of claim was a Commonwealth industrial instrument as defined in s 4 of the BCII Act;

    Plead that any Commonwealth industrial instrument as defined in s 4 of the BCII Act regulated the work on site;

    Plead that the work referred to in [9(b)] of the statement of claim for which the employees allegedly failed to attend was “work that was regulated by a Commonwealth industrial instrument”;

    Adduce any evidence of the work to be performed by the employees on 15 January 2010 that would have been regulated by Commonwealth industrial agreement;

    Adduce any evidence proving the existence of the Worsley CFMEU Agreement to be a Commonwealth industrial agreement as defined by s 4 of the BCII Act.

121    The CFMEU submit that the admissions in their defence, in [1.1] and [1.4] are that the applicant and CFMEU were parties to the Worsley CFMEU Agreement is of no assistance in this regard, as there is no evidence as to the relevant status of that agreement.

122    The CFMEU point to the definition of “Commonwealth industrial instrument” in s 4 of the BCII Act. The CFMEU say it is related to the Workplace Relations Act 1996 (Cth) (WR Act). It says that if the applicant relied upon a workplace agreement then it is governed by the WR Act. That requires such an instrument to be operational. Section 347(1) of the WR Act provides for when workplace agreements came into operation. The CFMEU says the applicant failed to adduce any evidence capable of establishing a workplace agreement under s 347(1) of the WR Act.

123    The argument of the CFMEU in the end is that it would have been very simple for the applicant to have proved the Worsley CFMEU Agreement but it simply failed to do so and that it has not been done by consent and that the applicant has proceeded in pressing its claim and closing its case on a wrong assumption in this regard.

124    While I need not decide this point, on the face of it, there would appear to be some force in the submission made on behalf of the CFMEU, although Mr Carrington mentioned the agreements.

125    But as I have found, the condition of the definition of “constitutionally-connected” has been made out by the reference to the adverse affection of the building industrial action.

conclusion

126    For these reasons, I am satisfied that, taken at its highest, the applicant has adduced evidence by which the Court could find “unlawful industrial action” for the purposes of s 38 of the BCII Act. The no case submission of the CFMEU therefore fails.

Associate:

Dated:    3 June 2011