FEDERAL COURT OF AUSTRALIA
John Holland Pty Ltd v Construction, Forestry, Mining and Energy Union (No 5) [2011] FCA 1023
| IN THE FEDERAL COURT OF AUSTRALIA | |
| DATE OF ORDER: | |
| WHERE MADE: |
THE COURT ORDERS THAT:
1. The application of the applicant be dismissed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011
| WESTERN AUSTRALIA DISTRICT REGISTRY | |
| FAIR WORK DIVISION | WAD 53 of 2010 |
| BETWEEN: | JOHN HOLLAND PTY LTD (ACN 004 282 268) Applicant |
| AND: | CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION First Respondent AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION KNOWN AS THE AUSTRALIAN MANUFACTURING WORKERS' UNION Second Respondent TROY SMART Third Respondent GRAHAM PALLOT Fourth Respondent SHANE O'REILLY Fifth Respondent |
| JUDGE: | BARKER J |
| DATE: | 31 AUGUST 2011 |
| PLACE: | PERTH |
REASONS FOR JUDGMENT
penalty proceeding under bcii act
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 applicant contended that each of the respondents had engaged in unlawful industrial action contrary to s 38 of the BCII Act and that the first respondent and second respondent were vicariously liable for the conduct of, in the case of the first respondent, the third and fourth respondents and, in the case of the second respondent, that of the fifth respondent. The applicant claimed that the third respondent, fourth respondent and fifth respondent were involved in the unlawful industrial action complained of. The applicant sought pecuniary penalties against each of the respondents.
4 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.
5 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. In John Holland Pty Ltd v Construction, Forestry, Mining and Energy Union (No 4) [2011] FCA 618 (John Holland (No 4) or the no case ruling) I ruled on that submission and found that the first respondent had a case to answer.
6 The trial was then relisted for further hearing on 2, 3 and 4 August 2011.
7 A short time before the hearing recommenced the applicant discontinued the proceeding against the second and fifth respondents – the Australian Manufacturing Workers’ Union (AMWU) parties. The case was however maintained against the first respondent, third respondent and fourth respondent – the CFMEU parties.
8 At the conclusion of the hearing against the CFMEU parties, the parties put on written closing submissions. The CFMEU parties agree with many of the background facts stated in the applicant’s written closing submissions but disagree with some.
facts agreed
9 The following facts are agreed, as drawn from the relevant paragraphs of the written submissions of the applicant (not including footnotes identifying the pleadings or evidence supporting the establishment of that fact), with which the CFMEU parties say they generally agree.
2. The evidence establishes that in January 2010, the Applicant, John Holland Pty Ltd (John Holland) was the employer of persons who were engaged to carry out construction work at the Worsley Alumina Refinery situated at Gastaldo Road, Worsley, in Western Australia (the Site) to construct new processing facilities in connection with the “Worsley Efficiency and Growth Project” (Project).
3. John Holland is and was at all times a “building employer” engaged on “building work” for the purposes of the BCII Act. Some of John Holland’s employees were members of (or were eligible to be a member of) the CFMEU.
4. The First Respondent (CFMEU) was an “organisation” for the purposes of the BCII Act, and the employer of the Third and Fourth Respondents,
5. The Third Respondent, Mr Troy Smart (Mr Smart), is and was at all material times employed by the CFMEU as an organiser.
6. The Fourth Respondent, Mr Graham Pallot (Mr Pallot), is and was at all material times employed by the CFMEU. He is also the Assistant Secretary of the CFMEU’s WA Divisional Branch. Mr Smart reports to Mr Pallot.
…
8. At around 3.00 pm on 13 January 2010, an accident occurred in Area 50A on the “White Side” of the Project when the boom of a 330 tonne Favelle Favco tower crane (the Tower Crane) collapsed and swung in towards the ground (the Accident).
9. At the time of the Accident, the Tower Crane was fully erect and was undergoing commissioning and load-testing.
10. The Tower Crane was owned by Men from Marrs (MFM), who had been engaged by Bechtel to provide cranes on the Project. It had the words “Men from Marrs” written in large type on its boom.
11. At the time of the accident, the area around the Tower Crane was barricaded, and an exclusion zone had been set up. John Holland had a small number of employees working within the exclusion zone on the commissioning and load-testing of the Tower Crane. These employees were working under the direction of MFM. Once the commissioning process was complete and the Tower Crane certified as fully operational by its designers and installers, the Tower Crane would have been handed over to John Holland to operate.
12. A number of assets were damaged in the Accident. For example, when the boom fell, a bridle attached to the boom hit a vacuum duct which was connected to the liquor burner. The bridle dented the duct. The liquor burner itself was not struck or damaged, as it was “nowhere nearby” the damaged duct being some 45m away.
13. A toilet block within the exclusion zone was also struck by the bridle attached to the boom. However, the toilet block had been cleared well in advance of load-testing commencing as part of the safety procedures applying to the exclusion zone. …
14. Immediately following the Accident, John Holland ensured that all of its workers in the area stopped work and made their work area safe. This included barricading the immediate area around the damaged boom. … No further work was performed that day.
15. While there were another three (3) tower cranes on the Project, only one (1) other tower crane was fully operational at the time of the Accident. Work on the second tower crane was stopped within an hour of the accident, and did not commence again until it had been inspected and cleared to recommence work.
…
17. On the day of the Accident, Mr Smart returned to site, having been present earlier in the day speaking to workers during their breaks….
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18. On Thursday, 14 January 2010, Mr Carrington escorted a number of union officials around the Site in a minivan, including Mr Smart (CFMEU) and Wayne Wildes (AMWU).
19. Mr Carrington showed the union officials the damaged toilet block.
20. … Mr Carrington and Mr Smart even shared a joke that there was “no better place to shit yourself”.
21. Mr Carrington says he told Mr Smart that the toilet block was part of the exclusion zone, that it had been cleared prior to load testing commencing, and that it was consequently vacant when struck by the falling bridle.
22. When it was put to Mr Smart that Mr Carrington had said words to this effect, Mr Smart’s answer was “could have, yes.” …
23. Mr Carrington showed the officials the damaged vacuum duct, and they were allowed to stand within 10m of it. The liquor burner was not discussed, as it was not damaged and was nowhere in sight.
24. The second operational tower crane was also discussed. Mr Carrington told the officials that work on that tower crane had stopped within an hour of the accident, and would not recommence again until it was inspected and cleared. Mr Smart agrees he was told this.
25. Some of the officials, including Mr Smart, speculated that the accident had been caused by some sort of mechanical failure. Mr Carrington replied that he didn’t know if that was the case, but it was not productive for him or the unions to speculate about what had caused the accident because no one knew, and the results of the investigation would not be known for some time.
26. Mr Smart agrees Mr Carrington said words to the effect that he could not comment or speculate on the causes of the Accident until the results of those investigations were known. When discussing how the toilet block came to be damaged, Mr Smart himself offered the view that it was not for him to say whether it was damaged by the falling boom arm or bridle because the results of the investigation was still not known.
…
27. After his site visit, Mr Smart then visited the crib huts in Area 50A and 35 to speak with employees.
28. At this time, Mr Smart told workers about the report back meeting which he had arranged to be held at 6.00am on Friday, 15 January 2010 in the Redside carpark, and took other steps to organise the meeting and arrange for employees to attend. He also arranged for Mr Pallot to attend. In any event, it is not disputed (because Mr Smart admits) that he organised the “Report Back Meeting” on 15 January 2010.
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32. On 14 January 2010, the CFMEU sent a number of people (including Mr Carrington) an email (signed by Troy Smart, Graham Pallott, and Mark Hudston) which requested that BHP, Marr Contracting and John Holland provide certain documents.
...
33. Between approximately 6.30am and 7.00am on Friday, 15 January 2010, a mass meeting of workers was held at the Redside Carpark at the Site (the Meeting).
34. Messrs Smart, Pallot, Hayes and Baker addressed the crowd at the Meeting by standing on the back of a white ute, and each taking turns to speak to the crowd.
35. Noel Brown (formerly employed by John Holland as a Night Shift Supervisor) attended the Meeting in the Redside carpark on 15 January 2010, arriving at around 5.50am and staying until the end of the meeting around 7.00am. Mr Brown gave evidence he saw four men address the crowd by standing on the back of a ute, although he recognised only one of the men as Troy Smart. Mr Brown gave evidence he spoke to Mr Smart before the Meeting commenced. During the Meeting, Mr Brown described himself as standing “right next to the utility”.
36. Mr Carrington watched the Meeting from a security hut approximately 40m away from the utility.
37. The meeting was attended by a large number of Worsley employees, some of whom were both employees of John Holland and members of the CFMEU.
…
38. Mr Smart and Mr Pallot both admit that they assisted in organising and leading the Meeting.
facts not agreed by cfmeu parties
10 The CFMEU parties do not agree with paras 7, 13 (third sentence), 14 (third sentence), 16, 17, 20 and 22 of the applicant’s submissions which are set out respectively in the following paragraphs, together with the reason for the disagreement:
7. John Holland and the CFMEU are parties to an agreement made under the former Workplace Relations Act 1996 (Cth) called the Worsley Efficiency and Growth Project John Holland Pty Ltd CFMEU/AWU Agreement 2008 (the Agreement). The Agreement is a Commonwealth industrial instrument for the purposes of the BCII Act.
The CFMEU parties contend there was no evidence that the agreement is a commonwealth instrument for the purposes of the BCII Act. The mere fact that a copy of the agreement was recognised by Mr Smart and tendered through him does not establish the legal status of the agreement as a Commonwealth instrument.
13. … Consequently, no one was inside the toilet block at (or before) the time of the accident.
The CFMEU parties say the evidence of Mr Carrington (exhibit 8, para 32) and Mr Shaw (exhibit 5, para 43) was that there was no one in the toilet block at the time of the accident. Neither gave evidence whether someone had been in the toilet block before the accident because neither was present at the site immediately before (Mr Shaw exhibit 4, para 4; Mr Carrington exhibit 7).
14. … John Holland then put its employees into crib huts, briefed them, commenced its own investigations by speaking to people about what had happened, and offered its employees counselling.
The CFMEU parties say it was the evidence of Mr Shaw that he had all the crews working under his supervision (around 170 out of 300 workers, he was one of three managers (transcript 180, 24 May 2011, line 8-9; line 20-21, line 34-35)) put into crib huts following the accident, not that John Holland put its employees working that day into crib huts following the accident. Plus, whilst Mr Shaw says that the purpose of putting them into crib huts was to brief them and offer counselling, he does not say that he did any of those things (exhibit 5, para 34).
16. Employees were kept informed after the Accident by regular notices and bulletins from John Holland Bechtel, and through daily pre-start team briefings.
The CFMEU parties say that paras 70 and 74 of Mr Carrington’s affidavit (exhibit 8) [which is the source for the stated fact referred to in footnote 34 of the applicant’s submissions] say no such thing. The only other evidence adduced of notices regarding the tower crane incident were from Efficiency & Growth (Bechtel) (exhibit 17 and “TKS4” to exhibit 14). There was no evidence of employees being kept informed by John Holland by notices, bulletins or daily pre-start meetings.
17. On the day of the Accident, Mr Smart returned to site, having been present earlier in the day speaking to workers during their breaks. Mr Smart was then met by Ryan Carrington (HR/IR Manager, John Holland) and escorted around the area of the Tower Crane by David Gwilliam (Area Superintendent, John Holland).
The CFMEU parties say Mr Gwilliam said he escorted Mr Smart to the crane crash area, not that he escorted Mr Smart around the area of the crane (exhibit 6, para 10).
20. Mr Smart mentioned a rumour he had heard to the effect that someone had been inside the toilet block at or shortly before the time of the Accident. Mr Carrington and Mr Smart even shared a joke that there was “no better place to shit yourself”.
Mr Smart said he “could have” said that he had heard rumours that someone could have been in there (meaning the toilet) (transcript 79, 2 August 2011, line 43-44) not that he did say such a thing to Mr Carrington on 14 January 2010.
22. When it was put to Mr Smart that Mr Carrington had said words to this effect, Mr Smart’s answer was “could have, yes.” In any event, Mr Smart accepted that by the end of his conversation with Mr Carrington, he was well aware that the rumour that someone had been inside the toilet block at the time it was struck, or that someone had run from the toilet block shortly before it was struck, was untrue. Mr Smart agreed that the very fact the rumour was untrue was the reason why he and Mr Carrington were able to have a “chuckle” about it.
The CFMEU parties say the rumour put to Mr Smart as incorrect was that someone had been in the toilet block when the boom fell on it or that someone had run from the toilet block as it was struck (transcript 80, 2 August 2011, lines 1-6) not as alleged in para 22 (second sentence) of the applicant’s submissions. Mr Carrington makes no mention of MrSmart raising any rumours with him before their shared joke (para 22, exhibit 8).
findings on facts not agreed
11 The respondents do not agree, as submitted by the applicant, that John Holland and the CFMEU are parties to an agreement made under the former Workplace Relations Act 1996 (Cth) called the Worsley Efficiency and Growth Project John Holland Pty Ltd CFMEU/AWU Agreement 2008 (the agreement). Or that the agreement is a Commonwealth industrial instrument for the purposes of the BCII Act. The applicant in submitting those facts are made out relies on [1(a)(vii)] of the statement of claim and what is said to be an admission in [1.1] of the amended defence of the CFMEU, as well as the evidence of Mr Smart in cross-examination at transcript 50, and the fact that the Court received into evidence as exhibit 15, the agreement.
12 The respondents say there was no evidence that the agreement is a Commonwealth instrument for the purposes of the BCII Act and the mere fact that a copy was recognised by Mr Smart and tendered through him does not establish the legal status of the agreement as a Commonwealth instrument. I do not accept the respondents’ submission. So far as the pleading point is concerned, whether or not there was an admission of the fact and the content of the agreement, rather than merely the making of an agreement, in my view, Mr Smart as an official of the union, who is familiar with the agreement and who in a day-to-day sense administered that agreement, was in a position to identify it and the agreement, as received into evidence, bespeaks its status as a Commonwealth instrument. I therefore reject the respondents’ submission on this point.
13 In relation to the agreed evidence about the toilet block, the applicant also says that the evidence shows, consequently, no one was inside the toilet block at (or before) the time of the accident. In that the applicant relies upon the evidence of Mr Carrington (exhibit 8 [32] of the evidence of Mr Shaw, exhibit 5 [43]-[44]). The respondents say that the evidence of Mr Carrington and Mr Shaw was that there was no one in the toilet block “at the time of the accident”. Neither gave evidence of whether someone had been in the toilet block “before” the accident because neither was present at the site immediately beforehand. In my view, having regard to the evidence as a whole and particularly the discussion between Mr Carrington and Mr Smart on site on 14 January, I infer on the balance of probabilities that there was no evidence to support the view that someone had actually been in the toilet block at any time just before the crane collapse. There was a rumour soon afterwards that someone had been, or that if someone had been it could have been catastrophic.
14 In relation to the question of barricading, the parties agree much of the evidence. The applicant additionally states that the evidence supports a finding that John Holland then put its employees into crib huts, briefed them, commenced its own investigations by speaking to people about what had happened, and offered its employees counselling. On this they rely on the evidence of Mr Shaw (exhibit 5 [34]). The respondents say it was the evidence of Mr Shaw that he had all the crews working under his supervision (around 170 out of 300 workers – he was one of three packet managers) put into crib huts following the accident, not that John Holland put its employees working that day into crib huts following the accident. Whilst Mr Shaw says that the purpose of putting them into crib huts was to brief them and offer counselling it does not say that he did any of those things. In my view, it may be inferred generally on the evidence of Mr Shaw that the practice he adopted was that generally adopted by or on behalf of John Holland and that he did what he said. While none of the witnesses called on behalf of the respondents was in the position to give evidence directly about these matters, none suggested that John Holland acted other than consistently with this statement.
15 John Holland further submit that the evidence supports a finding that employees were kept informed after the accident by regular notices and bulletins from John Holland, Bechtel and through daily pre-start team briefings. In this they rely on Mr Carrington’s evidence (exhibit 8 [70] and [74]). The respondents say that those paragraphs say no such thing. The only evidence adduced of notices regarding the tower crane incident were from Efficiency and Growth (Bechtel) (exhibit 17 and TKS4 to exhibit 14). There was no evidence of employees being kept informed by John Holland by notices, bulletins or daily pre-start meetings. In my view the fact asserted by John Holland goes further than the evidence allows. There is evidence in the proceeding that there were notices. Mr Smart himself indicates that he collected some of these. I find then that there was information provided by John Holland but reject the statement of fact as submitted by John Holland as it overstates the position.
16 John Holland further submit that the evidence supports a finding of fact that on the day of the accident Mr Smart returned to site, having been present earlier in the day speaking to workers during their breaks (relying on the cross-examination of Mr Smart at transcript 58). Mr Smart was then met by Mr Carrington and then escorted around the area of the tower crane by Mr Gwilliam, the area superintendent. In this the applicant relies on Mr Gwilliam (exhibit 6 [10]). The respondents say that Mr Gwilliam said he escorted Mr Smart to the crane crash area, not that he escorted Mr Smart around the area of the crane. This is a relatively small point. Mr Gwilliam plainly did what he said he did. Mr Smart was not really quibbling with how that should be described, the fact is that Mr Smart, like other visitors to the site, required to be accompanied when lawfully visiting the site and this is what occurred in the company of Mr Gwilliam on the day in question.
17 The applicant further submits that the evidence supports a finding that on the site visit by union officials on 14 January 2010, Mr Smart mentioned a rumour he had heard to the effect that someone had been inside the toilet block at or shortly before the time of the accident. As to this see transcript 79 and 80. Mr Carrington and Mr Smart even shared a joke that there was “no better place to shit yourself”. See evidence of Mr Carrington (exhibit 8 [36] and transcript 79). The respondents say that Mr Smart said he “could have” said that he heard rumours that someone could have been there and not that he did say such a thing. My view of the evidence is that Mr Smart was not denying that he may have mentioned the rumour and was, in effect, agreeing that the joke had been shared. I accept the evidence supports the finding proposed by the applicant.
18 The parties agree that Mr Carrington says he told Mr Smart that the toilet block was part of the exclusion zone, that it had been cleared prior to load testing commencing, and that it was consequently vacant when struck by the falling bridle. The applicant then says that the evidence supports a further finding that when it was put to Mr Smart that Mr Carrington had said words to this effect, Mr Smart’s answer was “could have, yes”. See transcript 79. In any event, Mr Smart accepted that by the end of his conversation with Mr Carrington, he was well aware that the rumour that someone had been inside the toilet block at the time it was struck or that someone had run from the toilet block shortly before it was struck was untrue. See transcript 80. Mr Smart agreed that the very fact the rumour was untrue was the reason why he and Mr Carrington were able to have a “chuckle” about it. See transcript 80. The respondents contend that the rumour put to Mr Smart as incorrect was that somebody had been “in” the toilet block when the boom fell on it, or that someone had run from the toilet block “as it was struck”, not as alleged in this submission. Mr Carrington made no mention of Mr Smart raising any rumours with him before their shared joke. Having regard to the evidence at the bottom of transcript 79 and top of transcript 80, it is clear enough that Mr Smart was not quibbling with the following factual propositions:
That he, Mr Smart, had heard rumours that someone could have been in the toilet at the time of the crane collapse.
That by the time he completed his conversation with Mr Carrington about what had happened in relation to the toilet block, he had been given to understand by Mr Carrington that no-one had to run from the toilet block as it was struck by the falling bridle.
That he and Mr Carrington, who dealt with each other on the site from time to time, have a bit of a chuckle sometimes and, on the balance of probabilities, shared the joke.
Case pleaded against CFMEU parties
19 The applicant materially pleads that at material times it was a “constitutional corporation”, engaged in “building work” and was a “building employer” as those terms are defined in the BCII Act. None of these pleas are in contention.
20 The applicant pleads that it was a party to a number of agreements including with the CFMEU concerning the Worsley Alumina Pty Ltd Efficiency and Growth Project. This is in dispute.
21 The applicant pleads that all material times the CFMEU was the employer of the third and fourth respondents, Mr Smart and Mr Pallot, respectively, the CFMEU is an “organisation” for the purposes of the BCII Act, was a 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. These pleas in the main appear not to be in dispute.
22 The applicant pleads that the CFMEU was a party to the Worsley CFMEU agreement. The CFMEU parties appear to accept that they were, but contend that the Worsley CFMEU agreement is not appropriately in evidence.
23 The applicant pleads that Mr Smart was at material times an officer, employee or agent of the CFMEU and acted within the scope of his actual or ostensible authority and was also an officer, employee or agent of the first respondent’s Construction and General Division, WA Divisional Branch, and was a “person” for the purposes of the BCII Act. None of this seems to be in contention.
24 The applicants further plea that Mr Pallot was, at material times, an officer, employee or agent of the CFMEU and acted within the scope of his actual or ostensible authority in that role, and was an officer, employee or agent of the CFMEU’s Construction and General Division, WA Divisional Branch, as well as a “person” for the purposes of the BCII Act. Similarly, this does not seem to be in issue.
25 By [7] of the amended statement of claim, the applicant alleges that about 6am on 15 January 2010, a meeting took place outside the entrance of the site which was organised and led by Mr Smart, Mr Pallot and Mr O’Reilly and attended by Mr Smart, Mr Pallot and Mr O’Reilly “and a number of the Applicant’s employees who were also members of the First and Second Respondents”. It is further alleged by the applicant at [8] of the statement of claim that during the 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.
26 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.
27 The applicant pleads that the conduct referred to variously was:
(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) not “excluded” action as that expression is defined in s 36(1) of the BCII Act; and
so was “unlawful industrial action” for the purposes of s 37 of the BCII Act.
28 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 shifts on 15 January 2010.
29 The applicants further allege that the CFMEU is vicariously liable for the conduct of Mr Smart and Mr Pallot.
30 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.
31 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.
32 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.
the cfmeu parties’ position
33 The case of the CFMEU parties is that:
(1) The applicant has failed to prove what is pleaded in [9(b)] namely, that 51 of the applicant’s employees in unprotected industrial action by not attending for some or all of their rostered shift on Friday 15 January 2010, because:
(a) it was not “building industrial action”;
(b) it was not “industrially-motivated action”; and
(c) it was not “constitutionally-connected action”.
(2) Alternatively, if the applicant has proved unlawful industrial action, the applicant has failed to prove that Mr Smart and Mr Pallot were “involved” in the unlawful industrial action in that they:
(a) did not aid, abet, counsel, procure or induce the contravention;
(b) were not knowingly concerned or a party to the contravention; and
(c) did not conspire with the employees to effect the contravention.
(3) If the applicant has failed to prove the case against Mr Smart and Mr Pallot it necessarily has failed to prove the vicarious liability of the CFMEU.
building industrial action
34 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.
35 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.
36 Paragraph 9(b) of the statement of claim pleads that “Following the Off-Site Meeting and Vote” (which is relevantly pleaded in [7] and [8]):
fifty-one (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).
37 In [39] of my ruling on the no case submission of the CFMEU, I observed that, 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 to its case that it is the conduct of 51 of the applicant’s employees, not the respondents, 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. 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 off-site meeting and vote.
38 The respondents say that the meeting in question ended at 7.00 am and that the daily shift started at 7.00 am and there is no reference to performance of any work after attending for work at 7.00 am. For this reason, the respondents contend, the “pleaded case therefore falls within the first limb of s 36(1)(d) [of the BCII Act]”.
39 As noted above, s 36(1)(d) relevantly defines “building industrial action” as “a failure of 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 respondents contend that this means there are two discrete limbs to this definition:
(1) a failure or refusal by persons to attend for building work; and
(4) a failure or refusal to perform any work at all by persons who attend for building work.
This, plainly, is so.
40 The respondents then contend that on the proper construction of this definition:
the first limb contemplates “complete non-attendance for work”; and
the second limb contemplates “complete non-performance of work following attendance”.
41 The respondents take issue with the observation I made in the no case judgment at [60] and [61], as follows:
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.
(I should add that the word “difficult” in [61] is a typographical error which should read “different”).
42 The respondents, relying on the Shorter Oxford Dictionary definition of the word “refuse”, says it simply means “to deny or reject what is required”, and there is nothing in the legislation which supports a definition of “refusal” as restricted to only a refusal where there has been a request or demand. An employee is required to perform work on behalf of an employer by virtue of the employment contract and fiduciary duties existing in the employer/employee relationship. Plus a refusal to do what is required contractually involves no requests or demand, just a refusal to fulfil a known obligation.
43 While this question of interpretation does not need to be finally resolved in this case I am not sure of the immediate point of this submission. In any event, the observations I made at [60] and [61] were not intended to be definitive. However, it does need to be carefully borne in mind that the process of statutory interpretation does not always involve the simple application of dictionary terms. Ordinarily the full terms of the provision in which a word or expression appears, as well as the general terms and objectives of the legislation itself will bear upon the interpretation exercise. In this case it is, I consider, important to note that a distinction appears to be drawn in s 36(1)(d) between “a failure” on the one hand, and a “refusal” on the other. That is why I previously observed, and still think it appropriate to observe, that a refusal, in this context, must be something more than a mere failure to attend the building work or to perform any work having attended the building work. Similarly, the concept of a “failure” is not one without context. There can only be a failure to attend for building work or a failure to perform any work at all by persons who attend for building work, where they have some obligation to attend and perform it. Thus, in my view, if it were correct to say, as the respondents submit, that a “refusal” to do what is contractually required where no request or demand for a person to do building work has been made, may constitute a “refusal” within s 36(1)(d), then it seems to me that the concept of “failure” to perform any work at all by persons who attend for building work would be redundant. Otherwise I generally accept, as I noted in [61] of the no case ruling, that it is relevant to know whether a employee is required to perform work on behalf of an employer by virtue of an employment contract and to have regard to any relevant fiduciary duties owed by the parties under that contract. I should not taken as having suggested anything else in either [60] or [61] of the no case ruling.
44 I should also add that the line between conduct that might constitute “failure” to perform any work at all by persons who attend for building work, and a “refusal” to do so may be a fine one. If, for example, an employee were sitting in a crib hut at a time when their supervisor considered they should be elsewhere working according to the work schedule for that day, pursuant to the employment contract, but the supervisor simply ignored the employee and did not inquire of them why they were sitting there, so that their concern was acted upon, it might be difficult to say that the employee at any material time refused to perform any work at all. But they may have failed to do so. However, if the supervisor paused for a moment and asked the employee what he or she was doing in the crib hut when they should be out on the site working, and the employee by their conduct (including silence) simply did not respond to that question or did respond and rejected the need for them to do so, then plainly at that point there would be a “refusal” to perform any work at all by a person who attended for building work.
45 In any event, the respondents say that the conduct pleaded in [9(b)] of the statement of claim does not fall within the second limb of the definition because that limb specifically provides for persons who attend for work but then fail or refuse to perform “any work at all” following attendance. The respondents say the pleading clearly refers to non-attendance for rostered work following the meeting and the vote.
46 Subject to the observation that a person who may have attended for building work, worked for a period but then withdraws their labour, may be said to have failed or refused “to perform any work at all” having attended for building work from a point in time onwards, I agree with the submission made on behalf of the respondents. The expression “any work at all” does not appear to me to mean that the definition is not satisfied, for example, if an employee attends, does some work and then proceeds to withdraw labour. As noted above, it seems to me that if, at some point during a shift, for example, labour is withdrawn then (subject to the evidence as to whether there was a “failure” or a “refusal” to perform) simply stopping at a certain point may well constitute a failure to perform “any work at all” at that point.
47 The respondents say that there is no evidence supporting any attendance for work that was not performed. By that contention, I understand the respondents to mean that there was no evidence of any of the 51 employees who attended for building work not having performed building work. The respondents refer to the gate swipe records (exhibit 9) and say they did not refer to all the 51 employees, and only covered the period from 6.00 am to 9.00 am. In the absence of evidence extending beyond 9.00 am from these records, prestart sign in sheets that do not record more than 24 of the 51 employees as being rostered to work, it is nothing but speculation to say that the 51 employees failed to attend for work following the meeting and the vote.
48 The respondents further contend that the pleading in [9(b)] does not specify whether the alleged conduct is a “failure” or a “refusal” but the words “by not attending” suggests “failure” rather than “refusal”. I agree.
49 The respondents say these issues are important for ascertaining what the applicant must prove on the evidence because the pleaded non-attendance of the 51 employees for some or all of their rostered shift requires evidence as to which of them:
(1) were rostered to attend work on 15 January 2010;
(2) attended the meeting and following the meeting and vote did not attend for their rostered shifts;
(3) alternatively, did not attend the meeting but following the meeting did not attend their rostered shift.
50 The respondents say that by the pleading the applicant has made it central to their case, as I noted above, that it is the conduct of the 51 employees that constitutes the building industrial action. Plus it is necessary for the applicant to prove on the balance of probabilities that the 51 employees failed to attend for some or all of their rostered work following the off-site meeting and vote.
51 The respondents therefore contend that [9(b)] cannot simply mean that at a time after the meeting and vote the pleaded non-attendance occurred without any causal connection between the two events. It must be construed as meaning that the 51 employees failed to attend for some or all of their rostered work following the meeting and therefore as a result of the meeting and the vote.
52 Accordingly, the respondents contend, if the 51 employees failed to attend for their rostered shifts for some reason unconnected with the off-site meeting and vote then their conduct cannot have the necessary qualities to fulfil the definition of building industrial action, given that the definition of building industrial action does not exist in isolation.
53 The respondents note that the applicant in trying to make out its case to this effect relies heavily on the drawing of inferences. But the respondents say the applicant has failed to adduce any evidence from which it can be inferred that:
(1) the failure of the 51 employees to attend for some or all of their rostered work occurred following the off-site meeting and the vote as a result of their attendance at the off-site meeting;
(2) the failure of the 51 employees to attend for some or all of their rostered work following the meeting and the vote was because they had heard about the meeting and the vote and decided to act consistently with the vote and not to return to work;
(3) the failure of the 51 employees to attend for some or all of their rostered work occurred following the off-site meeting and the vote was as a result of or in any way connected with the off-site meeting and vote to take industrial action.
54 I made it clear at [65] of the no case ruling that it is important not to conflate the question of whether “building industrial action” has been proved with a question of whether such action was “industrially motivated”. I consider that the respondents continue to conflate these issues. By posing the issue in terms that the applicant has failed to adduce any evidence from which it could be inferred that the failure of the 51 employees to attend for some or all of their rostered work following the off site meeting and vote, was “as a result of or in any way connected with the off site meeting and the vote to take industrial action”, the conflation I mention tends to arise.
55 It is only necessary to show “building industrial action” as defined for the purposes of s 36(1)(d), not that it was additionally industrially-motivated. That is a separate issue.
56 As to the applicant’s witnesses, Mr Shaw and Mr Gwilliam, the respondents observe that:
Neither were present or observed the meeting on 15 January and neither gave evidence that the 51 employees failed to attend for some or all of their rostered work on 15 January following the offsite meeting and vote.
Despite Mr Shaw’s evidence that he “realised a strike was happening when half his workers did not turn up for work at 7am” (exhibit 5 [61]), he did not give any evidence (which presumably he could have done given he was the overall manager of construction in certain parts of the site at that time):
– As to which employees of the applicant were rostered to work that day including the 51 employees.
– Identifying the workers in his team.
– That he knew there was a meeting of workers happening that morning since he was having a pre-start meeting at 6am.
– That any of the workers from his team who did not turn up for work at 7am were among the 51 employees.
– From which to draw an inference alone or in combination with other evidence that the 51 employees failed to attend for all or some of the rostered work following the meeting and vote.
57 As to Mr Gwilliam, who was the area superintendent at relevant times, the respondents say he gave no evidence (which he ought to have been able to give):
As to which employees of the applicant were rostered to work on 15 January 2010, including the 51 employees.
From which to draw an inference alone, or in combination with other evidence that the 51 employees failed to attend for some or all their rostered work following the meeting and vote.
58 As to Mr Brown, the respondents say that while he physically attended the meeting on 15 January, he did not give any evidence:
Identifying any employee who attended the meeting, let alone any of the 51 employees.
That any of the 51 employees failed to attend for some or all of their rostered work following the meeting.
That any of the workers from his crew who did not turn up at 7am were among the 51 employees.
59 As to Mr Carrington, the respondents say he observed the meeting from the security hut, adjacent to the carpark where the meeting was held and admitted in cross-examination that:
He did not personally all of the employees named in annexure “A”.
He did not know whether any of the employees attended the off-site meeting because he could not identify any of the 200 plus persons who attended the meeting.
He did not personally know whether the employees failed to attend for some or all of their rostered work of 15 January.
60 The respondents say that it is not possible to draw the inference from the documentary records referred to by Mr Carrington that the 51 employees in question failed to attend work on 15 January following the meeting or vote or attended and failed to do any work at all that day, so as to constitute building industrial action. The respondents say that Mr Carrington’s evidence may be summarised as follows:
where, following comparison, there was a correlation between the pre-start sign in sheets (exhibit 13), gate swipe records (exhibits 9 & 10) and daily timesheets (exhibit 11) and payslips (exhibit 12), the persons who had attended work could be verified;
he did not do the comparison and correlation exercise by comparing the various documents but rather instructed his assistant to do it;
he did not verify the exercise done by his assistant, but only checked four or five names against the documents;
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;
claimed that if 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;
conceded that he could not provide any evidence to confirm whether that had happened;
accepted that there was no code for recording “industrial action” in the Timezone daily timesheet system for the reason for non-attendance of an employee;
alleged that the supervisors were 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 showing lack of correlation between the records;
conceded that it was only speculation by him as to why 12 employees on annexure “A” all 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;
conceded that it was only speculation by him as to why 12 employees on annexure “A” had left work sometime in the course of the day;
could not explain how they came to be on annexure “A”;
could not explain why there were no records explaining their attendance or otherwise apart from payslips for six other names on annexure “A”;
could not explain why there were no records at all provided by the applicant for one employee on annexure “A”;
could not explain why 29 employees were listed under the code “Absence” in the daily timesheets apart from speculating;
could not explain why one employee on annexure “A” was listed as “Absence Leave” in the daily timesheets;
could not explain why six employees on annexure “A” were listed as “Absent Part Day” in the daily timesheets whilst also being recorded as working for part of the day;
could not explain why 11 persons listed in the prestart sign in sheets as rostered to work 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;
conceded that he did not know from looking at the records why employees had been listed as being on strike.
61 The respondents submit the Court should not be reasonably satisfied that these records contain any facts from which it can be inferred that the 51 employees were either all rostered to work a shift on 15 January or failed to attend work following the off-site meeting and vote.
62 They say that on the remaining available evidence, there is no fact established from which an inference could reasonably be drawn that:
the 51 employees were even rostered to attend work on 15 January 2010, given that 24 of them are not even named on the prestart sign in sheets which appear to be mostly pre-prepared typed sheets that workers simply fill out when they arrive at work next to their printed names;
the 51 employees actually attended the off-site meeting when at least 13 of them are shown on the gate swipe records as having entered the site before the commencement of or during the time when the meeting was being held;
if those 51 employees failed to attend for some or all of their rostered shifts on 15 January 2010, that they failed to attend following the off-site meeting and the vote.
63 I dealt with a similar, although not identical submission in the no case ruling. At [54], I said this:
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.
64 I ultimately drew the inference at [63] of the no case ruling 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 (less so the gate records) enables that reasonable inference to be drawn.
65 While I drew that inference in the cause of making a no case ruling, taking the applicant’s case at its highest, it seems to me that, having regard to the evidence I listed in [54] of the no case ruling, it is reasonable to infer the 51 persons listed in annexure “A” either failed to attend for work on 15 January 2011 or having attended failed to do any work at all at a certain point during their shift, as alleged. As to the reasons why they failed to do so, that is an entirely different question. Unless the applicant can establish that the “building industrial action” I have identified was “industrially motivated” then this civil penalty proceeding must fail.
“Industrially-motivated”
66 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.
67 The applicant says that in this case, the building industrial action was “industrially-motivated” in that it was motivated by one or more of the following purposes:
(1) supporting or advancing claims relating to occupational health and safety against John Holland in respect of the employment of employees of John Holland; and/or
(2) disrupting the performance of work.
68 The statement of claim by [19(b)] pleases that the conduct in [(b)] was motivated by a purpose that included one or more of the following:
(a) the desire of the first and third respondents to support or advance claims against the applicant in respect of the applicant’s employees;
(b) to advance their own industrial objectives; and/or
(c) to disrupt the performance of work.
69 As to the applicant’s claim, as put in submissions, that the conduct of the 51 employees was industrially-motivated in that it was motivated by the purpose of supporting or advancing claims relating to occupational health and safety against John Holland in respect of the employment of employees of John Holland, the respondents submit that this is not merely a refinement of the pleading in [19(b)] particular (a) of the statement of claim as I suggested it was in the no case ruling at [72], but it is completely different. The respondents contend what was pleaded concerns the desire of the first and third respondents to advance their own industrial objectives against John Holland and that can never have been the motivating purpose of the 51 employees without evidence as to what their purpose actually was. In my view, the substance of what is pleaded is as put by the applicant – the concerns of the employees – based on what Mr Smart and the CFMEU had to say at the meeting – to advance those claims.
70 There is a question, however, whether the reference in particular (b) to “their own industrial objectives” is meant to be read conjunctively with (a) which refers to the first and third respondents or, having regard to the prefatory words in [19] – “the conduct referred to in [9(b)] above” means the 51 employees, who are referred to in that subparagraph. I think it is fair to take the more generous reading of the language used and to assume that it refers to the conduct and so the industrial objectives of the employees. Just what industrial objectives are identified is not clear and the applicant does not press this purpose.
71 The respondents say there is no evidence to support the finding that the 51 employees were motivated by the purpose of disrupting work as particularised in (c).
72 As to (a), the respondents say there is no evidence at trial that there was any claim made by the 51 employees of John Holland in the nature of the demand of something as due or an assertion of a right or alleged right, either during the meeting or elsewhere. Rather, the evidence establishes there was a meeting which was robust and noisy where topics discussed included the tower crane collapse, John Holland’s poor safety record, the death of Wayne Moore in Newman on a John Holland project, the investigation being ongoing, the CFMEU’s request for documents and difficulties getting documents out of Bechtel and John Holland.
73 The respondents say there is no evidence about what the workers in attendance were claiming against or demanding from John Holland when they called out “Let’s walk off”. Further, the meeting was attended by persons other than John Holland employees.
74 The respondents point to the evidence of Mr Brown, called by the applicant, who said that men on the back of the utility spoke about “safety and stuff” and some people in the crowd were saying “Walk out and general things” but he could not really remember anything else.
75 Mr Brown also gave evidence that he could not recall exactly what was said or what was occurring at the time. His recollection was not good.
76 The respondents say there is no evidence from which it can be inferred that the 51 employees’ conduct in not attending for rostered work following the meeting and vote was motivated by any claim in the sense of a demand or something due or an assertion of a right made either at the meeting or after the meeting.
77 The respondents say that expressing in colourful language or otherwise a concern or discontent about site safety or a dissatisfaction with John Holland’s safety record, or beliefs that getting information out of bosses is hard does not constitute a “claim” to be pressed under the BCII Act. They are nothing more than complaints.
78 In these circumstances the respondents submit it is not established that the 51 employees attended the off-site meeting and there is no fact from which it can be inferred that they had a claim to be supported or advanced against John Holland for occupational health and safety, nor that they attended the meeting and “voted” and if they did attend that they were motivated by an alleged purpose.
79 The applicant’s case is that by reason of things said by Mr Smart and Mr Pallot on behalf of the CFMEU at the meeting, going to questions of the safety record of John Holland, that any subsequent building industrial action taken by the 51 employees can, by inference, be said to have been motivated by the purpose of supporting or advancing a claim against John Holland in relation to occupational health and safety.
80 The applicant relies on the evidence of Mr Brown, in the first instance, who the applicant called, including that he gave evidence (transcript 124 and 125) to the effect that the men on the back of the utility talked about the crane incident and said that the barricading around the tower crane was “not good enough”.
81 The applicant says Mr Smart admitted telling the crowd that he had concerns about the barricading around the crane and whether it was far enough away from the crane (transcript 99). When asked why he had said this when he had earlier agreed that it was wrong to speculate about things until the results of the investigation were known, Mr Smart replied that he had “no idea” (transcript 127-128)
82 The applicant says that when asked in cross-examination if Mr Smart had said that barricading around the crane was poor or bad or not sufficient, Mr Hayes, another witness called by the respondents denied this was so (transcript 196).
83 Mr Pallot, on the other hand, agreed the subject of inadequate barricading was raised and discussed at the meeting (transcript 243).
84 The applicant says that Mr Brown also gave evidence that the men on the back of the utility told the crowd that someone had been in the toilet block, either at the time of, or shortly before, the crane collapsed (transcript 126).
85 Mr Smart agreed he told the crowd that the toilet block had been hit by the falling boom, and he also agreed it was “possible” he had told the crowd that someone was inside the toilet block shortly before or at the time it was hit by the crane (transcript 132 and 135).
86 The applicant says that relevantly Mr Smart also agreed he was the source of information contained in the CFMEU bulletin dated 16 January 2010, wherein it was stated:
Some personnel in the vicinity of the crane had to run from the incident zone, including persons in the change room facility moments earlier… (transcript 132).
87 The applicant says that despite agreeing that he was the source of the information on which that bulletin was based, Mr Smart said he had not checked any of the facts, despite thinking someone may have been killed or nearly killed, and that he “wouldn’t have a clue” who the person was who was alleged to have run from the toilet block moments before it was hit (transcript 134).
88 The applicant submits that the Court should accept that Mr Smart provided that information after he became aware on 14 January 2010 it was not true, and further that Mr Smart said similar words to the crowd at the meeting knowing there was a rumour about and that it was untrue.
89 The applicant says when asked in cross-examination if Mr Smart had said that the crane hit a toilet block, Mr Hayes also denied this (transcript 196). When asked if Mr Smart had said that someone was inside the toilet block at the time, Mr Hayes denied this too (transcript 196).
90 Mr Pallot on the other hand, the applicant observes, said that he and Mr Smart were approached by a worker before the meeting started who wanted to know whether it was true that workers were accessing the toilet block shortly before it was hit by the crane. Mr Pallot agreed that Mr Smart did not denounce the rumours as untrue but justified this position on the basis that neither he nor Mr Smart had any information at that time about the truth or otherwise of the rumour (transcript 239).
91 The applicant says that Mr Pallot’s evidence was that during the meeting someone from the crowd asked about the person who had been inside the toilet block shortly before it was hit (transcript 244). Mr Pallot agreed that at no time did Mr Smart speak up and say the rumour was untrue (transcript 245). Mr Pallot defended this position by saying that neither he nor Mr Smart knew at that time whether or not the rumour was true (transcript 245). Mr Pallot was clearly unaware then of Mr Smart’s conversation with Mr Carrington on the site on 14 January 2010, when the evidence shows they discussed the question of someone being in the toilet block and Mr Smart was led to understand by Mr Carrington that this was the case and they had made a joke about it.
92 The applicant says that Mr Pallot’s evidence clearly establishes that the rumour that someone was inside the toilet block shortly before or at the time the accident was discussed at the meeting, if not raised directly by Mr Smart, Mr Pallot’s evidence also establishes that Mr Smart did not say (as he knew to be the fact) that the rumour was untrue.
93 The applicant also points to Mr Pallot’s evidence that Mr Smart told the crowd that the tower crane had fallen onto the nearby liquor burner and that the consequences of this could have been catastrophic (transcript 242 and 243).
94 The applicant says that Mr Brown said that people in the crowd yelled out “Walk out”, in response to which the men on the back of the utility told the crowd that if they did walk out there might be penalties involved (transcript 127, 129 and 130). The applicant says that Mr Pallot that he said words to this effect.
95 The applicant says that Mr Brown’s evidence was that one or more of the men on the back of the utility said to the crowd in a “wink, wink, nod” sort of way (transcript 131), words to the effect of, “We can’t tell you to walk out” and “We can’t tell you to go on strike”, which were spoken in a mocking tone of voice with a heavy emphasis on the word “tell”, which Mr Brown said he took to be an exhortation by the speaker for the crowd to go on strike (transcript 130-132).
96 Mr Brown also gave evidence that the men on the back of the utility told the crowd that John Holland had a poor safety record (transcript 132).
97 The applicant says that Mr Smart agreed that he told the crowd that John Holland had a “bad safety record” (transcript 109), that John Holland had killed a worker at another workplace (transcript 109 and 111), that another worker named Wayne Moore had died on a John Holland site when he fell through grid mesh up at Newman (transcript 109 and 110) and that Wayne Moore’s death was an example of John Holland’s poor safety record (transcript 110).
98 The applicant says that Mr Smart accepted that his words were capable of being construed by the crowd as an accusation that John Holland had killed Wayne Moore (transcript 111). Later in his evidence, Mr Smart admitted telling the crowd that John Holland had killed Wayne Moore (transcript 122-123 and 125).
99 The applicant says that Mr Smart also said words to the effect that John Holland had killed other workers around Australia and that the tower crane accident was another example of John Holland’s poor safety record (transcript 109 and 122).
100 The applicant says that reluctantly after much evasion Mr Smart finally admitted that he had said to the crowd words to the effect that the tower crane accident could have been another fatality (transcript 122).
101 The applicants says Mr Smart had no answer as to why his statement in the proceeding did not refer to these matters and when it was put to him that their absence was positively misleading, Mr Smart replied, “you can assume that” (transcript 124).
102 The applicant says Mr Smart agreed the crowd became even more heated and upset after he said the words referred to above. However, he denied deliberately stirring up the crowd saying that he was “just saying what the facts were” (transcript 125).
103 The applicant says Mr Hayes admitted that it would be reasonable to expect the crowd to become upset and angry if one were to accuse John Holland of having a poor safety record and of killing people. However, he denied that that is what Troy Smart said or did (transcript 190, 192 and 193).
104 The applicant says Mr Pallot similarly denied that Mr Smart had accused John Holland of having a poor safety record or that Mr Smart said words to the effect that the tower crane accident was another example of John Holland’s poor safety record (transcript 249), or that Mr Smart said that the accident could have been a fatality (transcript 249), or that Mr Smart accused John Holland of killing people around Australia (transcript 250).
105 The applicants submit that the evidence of Mr Hayes and Mr Pallot on this point is deliberately untruthful.
106 The applicant says Mr Smart agreed that he knew in advance of the meeting that there was the potential for a strike, which is why Mr Pallot came along (transcript 130).
107 Mr Pallot was similarly well aware of the potential for a strike (transcript 226, 227 and 223).
108 The applicant says that Mr Brown said the men on the back of the utility told the crowd that getting information out of John Holland was hard, and that John Holland was described by the men on the ute as a “bunch of cunts” for this reason (transcript 134).
109 Mr Smart agreed he told the crowd that it was hard getting information out of John Holland, and that John Holland was drip-feeding information (transcript 136).
110 When asked in cross-examination if Mr Smart had said that it was hard getting information out of John Holland, Mr Hayes (transcript 197) and Mr Pallot (transcript 249) both denied this. Again, the applicant submits that the evidence of Mr Hayes and Mr Pallot in this regard is not truthful.
111 Mr Brown, the applicant points out, said in his evidence that the men on the back of the truck used a lot of “cuss words”, and, on more than one occasion called John Holland and Bechtel a “bunch of cunts” (transcript 134-135). Mr Brown says that the expression was used by one of the men to describe, amongst other things, how hard it was to get information out of John Holland and Bechtel. According to Mr Brown the crowd became even more upset after hearing the officials use the language (transcript 171), he said the crowd also used swear words to yell out insults about John Holland (transcript 156).
112 The applicant says that when asked if he had used the expression “bunch of cunts” to the crowd, Mr Smart said the expression actually used by him was “fucking bunch of cunts” (transcript 109).
113 The applicant points to Mr Smart’s evidence when he said he formed the view from the swear words that were coming from the crowd that members of the crowd were upset and when asked if his own swearing indicated that he was upset, and that he had spoken angrily and loudly, he denied these allegations (transcript 131). Mr Smart said he always addressed the crowd in a normal tone of voice, even when calling John Holland what he did. The applicant submits that this evidence is simply not credible.
114 The applicant says that Mr Hayes, on the other hand, said rather curiously that “there was no swearing from the back of the Ute” (transcript 190 and 192), despite the fact he was standing close to Mr Smart the entire time. Mr Hayes agreed that if Mr Smart had said those words, he would have heard them (transcript 192). Mr Hayes also agreed it would not have been a responsible thing to say (transcript 204). The applicant submits the Court should find that Mr Hayes is not a truthful witness.
115 The applicant points out that Mr Pallot also denied that Mr Smart called John Holland a “fucking bunch of cunts” (transcript 250). The applicant submits the Court should find that Mr Pallot is not a truthful witness.
116 The applicant points to Mr Brown’s evidence that, at the end of the meeting, one of the men on the back of the ute asked the crowd to take a vote on whether they wished to take strike action (transcript 135) in this regard, Mr Brown said relevantly:
I mean the people in – with everyone there and I believe a vote was put forward by someone on the back of the ute to walk out, yay or nay, and they aye - and the ayes had it. They had asked all those in favour to say ‘aye’ and you have a large bloke – and you had a large group of people say ‘aye’ and all those say ‘no’ and there’s no word – there was no sound and they said, ‘The ayes have it,’ and that was basically at the end of the meeting.
117 Mr Brown believed that someone on the back of a truck called for the vote. When Mr Brown was asked what people were voting for, he said “walkout”.
118 Mr Brown said that after the vote there was no comment and it basically ended after that. He just walked off and went towards the gates. He believed people were leaving and there were some people walking towards the gate with him. He believed about a dozen or so people walked towards the gate.
119 Mr Brown said he heard (rather than saw) the person who called for the vote (transcript 146). He thought he was standing close to the ute and believed it belonged to one of the men on the ute (transcript 140). Mr Brown said (transcript 135):
I mean the people in – with everyone there and I believe a vote was put forward by someone on the back of the ute to walk out, yay or nay, and the yay – and the ayes had it.
120 The applicant says Mr Smart, Mr Pallot and Mr Hayes all gave different versions of how the meeting ended, none of which were consistent with the other, and none of which, the applicant submits should be either believed or preferred to the evidence of Mr Brown.
121 Mr Smart asserted that someone from the crowd proposed strike action by saying words to the effect of “Lets fuck off for the day and come back Monday”. Despite similar words having been yelled out for the duration of the meeting, and despite the general noise and melee of the crowd, and despite it being difficult for someone at the back of the crowd to hear what someone in the front of the crowd was saying, the applicant says that Mr Smart says that on this occasion the words of one individual in the crowd had the effect of causing the 350 strong crowd to disperse, and a sizeable group of employees with no prompting from officials to take strike action (transcript 143).
122 The applicant says that Mr Pallot on the other hand said that someone in the crowd yelled out “I’m putting up a motion, we’re out til Monday, all those in favour”, in response to which a number of people in the crowd yelled out “we’re out of here” and “let’s fuck off”. Mr Pallot said there was no seconder and no vote taken. Instead, the crowd just “suddenly dispersed.”
123 The applicant says Mr Hayes gave yet another version of how the meeting ended. According to him, no one from the crowd called for strike action, and no one from the ute suggested strike action; rather, the crowd just dispersed on its own, and people decided of their own accord to leave the site and strike. In particular, Mr Hayes denied that anyone from the crowd said words to the effect of “Let’s fuck off for the day and come back on Monday” and was adamant that if such words had been spoken he would have heard them.
124 The applicant says that none of the versions of events of Mr Hayes, Mr Smart or Mr Pallot can credibly stand together. Their inherent likelihood, the absence of critical matters from each of their statements, and the other untruths and inconsistencies in their evidence all mean that the Court should prefer the evidence of Mr Brown on this point.
125 The respondents accept that Mr Smart and Mr Pallot organised, attended and led (in the sense of addressing the workers), the off-site meeting but say that the fact that they arranged and attended the meeting needs to be seen in context.
126 The respondents say that Mr Smart’s unchallenged evidence was that the workers were concerned about safety and he wanted the CFMEU to have a meeting to report back to them about the crane collapse. Mr Pallot’s unchallenged evidence was that he requested Mr Croft from the Chamber of Commerce who was in charge of IR on the site to approve a paid on site meeting to deal with workers concerns about a lack of information, but it was refused and it was Bechtel’s poor management of the situation that resulted in a meeting before work had started.
127 The respondents say the conduct of the CFMEU is to be seen in its entirety, but most importantly with reference to the position it adopted at the off-site meeting when workers were calling out “Let’s walk off” and suggesting a strike throughout the course of the meeting.
128 The respondents say that Mr Pallot’s unchallenged evidence was that from the time of the initial address by Mr Baker, a vocal minority of workers in the crowd were angry and calling out for a strike and they continued through Mr Smart’s address.
129 The respondents say that regardless of what Mr Smart did or did not say, whether he used offensive language, or whether his statements might have drawn angry sentiment from a vocal minority, by the time he finished speaking, there had been repeated calls for strike action by some of the workers from before he even started speaking. Indeed, Mr Brown described the crowd as angry from the start.
130 Plus, in response to the calls from the vocal minority to go on strike Mr Pallot then took over and addressed the workers. He made it clear that the workers should go back to work. In other words, no matter that the workers were contemplating in terms of strike action, the final messages given to them by the Union officials, Mr Pallot and Mr Hayes, were to return to work, not to strike and if they did strike the ABCC would become involved and penalties might be imposed.
131 The respondents say it was the unchallenged evidence of Mr Smart (exhibit 14 [81]), Mr Pallot (exhibit 20 [49]-[50], transcript 217 and 232) and Mr Hayes (exhibit 19 [53]-[57] and [59]) that Mr Pallot and Mr Hayes in addressing the workers last said in direct response to calls from the floor for a strike words to the effect that:
they should go back to work;
they should follow the dispute resolution procedures;
they should not to go on strike;
if they went on strike the ABCC would be involved and there would be penalties;
the Unions would not support them if they went on strike or pay their fines.
132 The respondents say it was never put to Mr Smart, Mr Pallot or Mr Hayes that any of the above statements by Mr Pallot and Mr Hayes were either not made to the workers or were not genuinely made and their evidence must be accepted.
133 The respondents also point out that Mr Brown confirmed that during the off-site meeting, each of the union officials told the workers to go back to work, not to strike and that there would be penalties if they did not.
134 The respondents say the only findings open on the evidence are that:
the above statements were made;
they were genuinely made;
they were made for the express purpose of attempting to dissuade the workers from withdrawing their labour in the sense of taking positive steps to prevent it;
the above statements demonstrate that the Mr Sim and Mr Pallot were not involved in any decision by any of the workers to strike, let alone the conduct of the 51 employees in not attending for rostered work that morning following the off-site meeting.
135 The respondents say that if the applicant’s case is limited to the way it is pleaded, there is no allegation of any act or omission of Mr Smart and Mr Pallot in leading the off-site meeting apart from the alleged vote, but if the applicant is permitted to move outside its pleaded case, the expression “We can’t tell you to strike” is suggested to be an indirect exhortation to strike.
136 As to this allegation, which Mr Brown considered was said in a “nod nod, wink wink” suggestive way, to aid, abet, procure or incite a strike, the only way the third and fourth respondents can be found liable as accessories is if the evidence establishes, directly or by inference, that either of them made the statement in this way.
137 The respondents say the statement of Mr Brown firstly raises an identity issue and that it is not clear who exactly made the statement according to Mr Brown – a CFMEU official or someone else.
138 The respondents say that without pleading silent acquiescence by the third and fourth respondents with specific threats or exhortations made by one of the other union officials, there is no basis for determining liability against the third and fourth respondents.
139 The respondents say that Mr Brown knew Mr Smart but did not identify Mr Smart as the maker of this statement so the only reasonable inference is it was not Mr Smart. He did not identify the man who made this statement as being the person he observed with Mr Smart, as fitting the description of the man he identified, or that such person was wearing a CFMEU shirt or badge.
140 The respondents point out that no other witness heard such a statement being made, but no evidence was led from Mr Baker or Mr O’Reilly.
141 The respondents say that the second issue is whether these words were even spoken. Only Mr Brown gave evidence of them. He could not recall the exact words or the context in which they were allegedly said. It was Mr Brown’s “perception” that these words meant a “nod nod wink wink” exhortation to strike and how he interpreted what was said, and it is ambiguous at best in light of the unchallenged evidence of the other advice given to the workers. The respondents contend that when considered in light of the whole of the evidence, including Mr Brown’s agreement that more than one of the men on the ute told the workers to go back to work and not to take strike action or there would be penalties involved, this lone statement (if made) is equivocal and cannot be elevated to a procurement or incitement by the respondents to the 51 employees to strike, especially since there is no evidence the 51 were present or heard this exhortation
142 As to the evidence of Mr Brown that he believed that someone on the back of the ute put forward a vote to walk out, the respondents say an identity issue again arises. On the basis of Mr Brown’s evidence it is not possible to determine which of the officials did so.
143 There was no evidence from either Mr Baker or the fifth respondent, both of whom were present at the Off-Site Meeting. On the evidence, Mr Baker was on back of the ute and Mr O’Reilly was standing next to the back of the ute on the ground.
144 The respondents note that Mr Carrington gave evidence that the fifth respondent got on the back of the ute and addressed the meeting in an animated fashion (exhibit 8, [48]-[56]). His evidence was inconsistent with that of Mr Smart, Mr Pallot and Mr Hayes on this point but he was not challenged on it.
145 The respondents say that Mr Brown’s evidence on the issue of the vote when first found in the transcript (transcript 135) referring to the vote coming from someone on the back of the ute turned out to be nothing more than a belief based on an assumption. He could not recall what words were used or what was happening immediately before they were spoken (transcript 136). He did not know which person proposed the vote (transcript 140) but believed it came from the back of the ute and he heard the words rather than saw any speaker (transcript 146) and they came from the direction of the ute (transcript 146).
146 The respondents say Mr Brown agreed he could have assumed that because he heard the words come from the direction of the ute that it was said by someone on the back of the ute (transcript 146). He agreed there was noise around him and workers calling out “Walk Off”. The respondents say Mr Brown eventually conceded “I guess I just can’t you know, remember that part of it I suppose” (transcript 146).
147 The respondents say that given it was only his belief based on an assumption and he could not really remember that part of it, Mr Pallot’s evidence ought to be accepted that he heard someone from the floor of the meeting suggest going out on strike and someone calling out “All those in favour”. Mr Pallot is clear there was no raised mass of voices saying “Aye” or “Yay” in response.
148 The respondents point out that Mr Carrington in cross-examination agreed that he could hear a general noise coming from the crowd, but at no stage heard voices in the crowd raised loudly in unison just before dispersal.
149 The respondents say the evidence that people in the crowd moved towards the gates immediately the meeting was over is inconsistent with a unanimous vote for an immediate strike.
150 The respondents say this crucial allegation is unpleaded and liability attracting penalty consequences should not hinge on ambiguous testimony that does not establish how the Court could possibly attribute accessorial let alone vicarious liability.
151 Generally as to credibility the respondents say that Mr Brown was vague, ambiguous and unable to recall important details in giving his evidence, despite allegedly standing three metres from the ute and giving a statement only a few months after the event. He could not recall details.
152 As noted above, the respondents say the evidence of Mr Shaw and Mr Gwilliam is limited.
153 In relation to Mr Carrington, the respondents submit he was an unreliable witness and when pressed on the accuracy of records of his employer could not explain the inconsistencies in them and became evasive and argumentative.
154 The respondents say that Mr Carrington’s evidence about the records of the applicant is inadmissible. His conclusion that the 51 Employees did not attend work is a belief based upon the records prepared by others. It cannot be the basis for the drawing of any reasonable inference.
155 By contrast the respondents say Mr Smart should be accepted as a witness of the truth because he lacked all artifice, he was prepared to accept that he may have and probably was the author of the expression “fucking bunch of cunts” and made no apologies for telling the crowd that John Holland had a poor safety record because he claimed that they did as a matter of fact, having fatalities, including Wayne Moore, on several sites across the country. It was not put to him that he was wrong about that record.
156 The respondents say there will always be some inconsistencies between the recollections of different witnesses to the same event and Mr Smart made proper concessions and did not seek to hide any part of the role he played in the meeting.
157 The respondents say that Mr Pallot should also be accepted as a witness of truth. His lack of recollection of everything that Mr Smart said is easily explained by his own evidence, by the background noise and he was not concentrating on everything that was said as he was preparing for his own contribution.
158 The respondents say that Mr Hayes should be accepted as a witness of truth because he was the only truly independent witness, not being a party to the proceedings and not aligned.
159 Again the respondents submit that any inconsistencies in his evidence are not unexpected. He spoke last on the utility. He reinforced the message that people should not go on strike and would not be supported by their unions.
160 About the attacks on what Mr Smart said on various topics at the meeting when he should have known better, the respondents note that Mr Smart gave evidence that before the meeting he had had concerns about the barricading and whether it was far enough away from the crane, not that he told that to the meeting.
161 The respondents say that there is no basis for finding that he complained the barricading was “not good enough” or was poor, based on Mr Brown’s evidence, given that Mr Brown could not identify who said such a thing.
162 In any event, if Mr Smart did say something to that effect, it was part of a reasonably robust meeting of workers, some of whom were calling out for a strike, it was not a comment which incited or procured the strike.
163 As to the question whether or not someone was inside the toilet block at the time of the collapse of the crane, the respondents say again that Mr Brown did not identify Mr Smart as referring to the rumour.
164 Instead, the respondents say that Mr Smart did not recall telling the meeting about the rumour. His evidence was that it was possible he did so, and he said this when responding to a question which commenced with the words “it’s possible you said …”, which reduces the probative value of the answer.
165 As to what was stated in the CFMEU bulletin, Mr Smart said he gave that to the union on 13 January. That is before the meeting with Mr Carrington on 14 January.
166 The respondents, in any event, say that if this comment was made by Mr Smart it was at most a reference to a rumour and neither alone nor in conjunction with other words could have incited or procured the strike.
167 As to the liquor burner issue, the respondents say the transcript references supplied by the applicant clearly establish that Mr Pallot said he recalled Mr Smart and possibly Mr Baker mentioning the liquor burner but he repeatedly said he did not recall Mr Smart telling the crowd that the tower crane had fallen onto the liquor burner.
168 Mr Pallot’s actual evidence was that he understood that workers were concerned that if the crane had fallen on the liquor burner there could have been a major catastrophe.
169 The respondents say that once again the applicant is wrong in its summary of Mr Brown’s evidence by reference to the transcript references supplied. Mr Brown said of one of the men; “He was advising them that there ‘would’ be penalties involved if they walked out and believed he advised them that they would have to get back to work”.
170 The respondents say that Mr Pallot denied that he said to the crowd “if you do decide to strike, there may be a prosecution and penalties” or that he said had a connotation of just giving out information (transcript 255).
171 The respondents point out that Mr Pallot was not the only one to speak of penalties for strike action and Mr Hayes did also.
172 The respondents say as to John Holland’s poor safety record, it was never put to Mr Smart that John Holland did not in fact have a poor safety record, as noted above.
173 The respondents say that Mr Smart denied his affidavit was misleading for not including all the propositions put to him about his statement. He did not say “you can assume that” at transcript 124, but when he did say it, it was in answer to a suggestion that he clearly intended to convey was a matter for the questioner.
174 Mr Smart denied stirring up the crowd. Mr Brown mentioned the crowd was agitated throughout.
175 The respondents say the evidence of Mr Hayes and Mr Pallot is based upon what they heard in a noisy meeting. The likelihood of hearing everything said is reduced.
176 The respondents say that the knowledge of potential for a strike was responded to by the respondents taking steps to discourage such action. That is positive conduct distancing them from aiding, abetting, counselling or procuring or being knowingly concerned in or a party to the conduct of 51 employees who decided to strike, even though there is no evidence as to how those employees came to make such a decision, if they did.
177 The respondents say whether or not it was hard getting information out of John Holland is another comment in a reasonably robust meeting that cannot be established on the evidence to have anything to do with the conduct of the 51 employees.
178 As to Mr Smart’s evidence concerning the “the fucking bunch of cunts” comments, the respondents say that at transcript 109 what he said was that he “could have” said words to that effect and did not disagree using swear words.
179 There was no evidence that he raised his voice to the crowd from Mr Brown or anyone else. He is entitled to be believed that he used a normal tone when talking about John Holland.
180 Mr Hayes and Mr Pallot not recalling Mr Smart saying such words is consistent with Mr Smart saying he could have said such words (not that he did say such words) and Mr Hayes and Mr Pallot not listening to the whole of Troy’s address.
181 The respondents note that the applicant submits that the Court has already found certain facts as reasonably established by the evidence in the no case judgment. No findings of fact however have been found to be reasonably established by the evidence, only that there was some evidence on each of the elements of the statutory cause of action which taken at its highest might prove the applicant’s case.
182 The respondents accept that the following are matters that are open to be found as facts on the evidence:
Employees of the applicant were rostered to work on 15 January 2010;
These employees were mostly rostered to start a dayshift at 7 am;
These employees were to attend a pre-start meeting at that time;
A meeting was held in the Redside carpark between about 6.40 am and 7 am on 15 January 2010 which was attended by a large number of people including employees of the applicant (one of whom was Mr Brown);
The third and fourth respondents organised the meeting, and led it in the sense that they stood on the tray of a utility and took turns to speak to the crowd.
183 The respondents, however, argue that the following facts are not established on the evidence, for the reasons submitted above regarding Mr Carrington’s evidence:
A number of John Holland’s employees who were expected to sign in at the pre-start meeting on 15 January 2010 failed to do so;
A number of John Holland’s employees who did sign in at the pre-start meeting that day left that day before 9 am, before their scheduled roster had concluded;
Some of the employees listed in annexure “A” were amongst the employees who did not present for their rostered shift that day;
Some others listed in annexure “A” were amongst those employees who attended the 7 am pre-start meeting but left the site between 7 am and 9 am that day;
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.
184 The question is whether the pleaded conduct of the relevant employees by not attending for some or all of their rostered shifts on 15 January 2010 was industrially-motivated. In this regard, the applicant’s pleading is in [19(b)] of the statement of claim, which relevantly pleads as follows:
19. The conduct referred to in paragraph [9(b)] above was:
…
(b) ‘industrially motivated’ as that term is defined in s36(1) of the BCII Act;
Particulars
The Building Industrial Action was motivated by a purpose that included one or more of the following:
(a) the desire of the First and Third Respondents to support or advance claims against the Applicant in respect of the Applicant’s employees;
(b) to advance their own industrial objectives; and/or
(c) to disrupt the performance of work.
185 In my view there is no evidence to support a finding in terms of particular (b) or (c). In relation to (c) I consider, as I said in ABCC v CFMEU at [121], that it is not enough to show disruption to work following building industrial action, rather, it must be shown on the evidence such disruption was a purpose of that action I do not consider there is any evidence of such a purpose.
186 The principal issue then is whether in terms of particular (a), the applicant has established that the 51 employees were motivated, in their conduct, by a purpose that included supporting or advancing claims relating to occupational health and safety against John Holland in respect of the employment of employees of John Holland. As I have found, this is a reasonable articulation of the pleaded motivation in (a).
187 The case for the applicant is that if the Court takes account of what the CFMEU officials said at the meeting, and what other persons standing on the back of the utility from other unions also said at the meeting without the CFMEU officials disagreeing with or contradicting or dissenting from it, what was said by the union officials on the back of the truck of the meeting was all by way of encouraging the assembled employees to strike because of the safety concerns that the recent collapse of the tower crane had raised.
188 Leaving aside for the moment whether the substance of the meeting sufficiently raised that as an issue and the conduct of the union officials may be considered sufficient to have provoked, using a neutral and general expression at this point, the conduct complained of, there is a primary question whether the conduct of the 51 employees complained of can be reasonably linked to what happened at the meeting.
189 Each proceeding asserting that building industrial action was taken for a specified purpose depends on its own facts. In ABCC v CFMEU, for example, it was very clear that the employees who had attended a meeting at which a vote had been taken upon the exhortation of the union official, had been discussing and were concerned about a very particular safety issue. The Court had no difficulty in inferring that the strike that followed the vote was building industrial action by the employees who were motivated by the purpose of advancing the safety claim discussed at the meeting.
190 In this case, however, the first point to be made is that it is entirely unclear whether the 51 employees named in annexure “A” were at the meeting. I accept the submissions of the CFMEU parties in that regard. There is no reason to conclude, and I am not prepared to infer on the evidence, that any of the 51 employees mentioned in annexure “A” were in attendance at the meeting.
191 Furthermore, I am not prepared to infer that what was said or done by the union officials at the meeting provides any clear motivation for the action complained of.
192 In my view, in the result, the most important of the witnesses, who gave the clearest evidence about what happened at the meeting on 15 January, was Mr Smart. I will return to his evidence.
193 Mr Pallot also gave clear evidence concerning what happened at the meeting and I also will have regard to his evidence below.
194 Mr Hayes’ evidence was of limited assistance to the Court. Mr Hayes did not recall, when they were put to him in cross-examination, a lot of things that appear to have occurred. A good example is that he did not recall anyone swearing at the meeting, and in particular using the “cuss words” as Mr Brown described them. If the Court only had the benefit of Mr Hayes’ evidence in this proceeding it would be left with the impression that all of the participants in the meeting, especially the union officials standing on the back of the utility were extremely mild mannered and “watching their p’s and q’s”. It is not necessary for me to say whether or not Mr Hayes was untruthful about particular things done or said, of which he claimed no recall. It is possible that having regard to the events that day, with much noise at the meeting and he being one of the speakers, some of the things done and said escaped him. It would be a little surprising though. In the end, the evidence of Mr Hayes is not critical to the issue I must determine.
195 The evidence of Mr Pallot is much more helpful to the Court. Mr Pallot gave his evidence in a direct fashion. He is a long term and leading official of the CFMEU in Western Australia. He exhibited a detailed and sophisticated understanding of the sorts of industrial issues that underpinned the particular incidents that led to this proceeding. Mr Pallot was not an organiser, on the ground, like Mr Smart was, but he was appropriately engaged as a senior official to attend the meeting on 15 January 2010. He plainly had been brought up to speed by Mr Smart about what was involved with the crane collapse. However, he did not have a detailed understanding of everything that had been happening.
196 The officials from the CFMEU and the AMWU who spoke, standing on the back of the utility at the meeting, had a discussion it appears briefly before the meeting commenced and generally agreed who should speak to the meeting and in what order. When Mr Pallot spoke he was last or second last, after Mr Baker and Mr Smart. The purpose of Mr Hayes and Mr Pallot speaking was to particularly emphasise where the AMWU and CFMEU stood in relation to any proposal for industrial action.
197 I have no hesitation in finding that Mr Pallot was at pains, as he said, to let the persons attending the meeting understand that the CFMEU would not be supporting industrial action and would not be paying any fines that might result if there were.
198 There is no doubt that given the tower crane incident that there was some expectation, when the report back meeting was called on 15 January 2010 and persons assembled at it, that there were some who would press for industrial action. Nonetheless I accept that Mr Pallot and indeed Mr Hayes encouraged the men to go back to work, to follow a dispute resolution procedure, not to go on strike and to advise the men that if they did go on strike the ABCC would be involved and there would be penalties and the Union would not support them if they went on strike, nor would it pay their fines. I am certainly not satisfied on the balance of probabilities that the applicant has established otherwise.
199 Mr Pallot made the point during cross-examination, which I accept, that being the last or second last person to speak, when earlier speakers including Mr Smart were speaking, he was keeping an eye and an ear on the crowd and their response to the issues at hand, as well as thinking about his own presentation and in that sense was not entirely focussed on everything that was said and done at the meeting. Nonetheless I accept that he was not ignoring what was happening at the meeting but indeed was endeavouring to monitor and assess the degree of agitation in the meeting. I accept Mr Pallot’s evidence that based on the assessment he made, he was at pains to make the Union’s position, as I have outlined it, clear.
200 I also draw the clear inference, from all the evidence given, that the two senior union officials, Mr Pallot and Mr Hayes, were explicitly at the meeting to make sure that the workers assembled understood what the Union’s official positions were, in the terms that Mr Pallot and Mr Hayes explained it in evidence. Accordingly, it was not the role of Mr Smart to deal with that strategic decision.
201 Thus, to the extent that Mr Brown recalls one of the officials using words to the effect that “We cannot tell you to strike” and the emphasis put on those words, which in his view, suggested the speaker was encouraging members of the respective unions to take strike action, then in my view the words were most likely to have been said, if said, by Mr Pallot or Mr Hayes.
202 Having regard to all of the evidence, including the cross-examination of Mr Pallot and Mr Hayes I do not consider the evidence supports a conclusion that either of them said words with the sort of emphasis that Mr Brown alleged.
203 I should say in respect of the evidence of Mr Brown, the only eyewitness to the meeting called by the applicant, that by the conclusion of cross-examination, he was far less certain of what had happened at the meeting, and what had been said and by whom, than he had been when he commenced.
204 Mr Brown made two affidavits which went into evidence (exhibits 2 and 3). In his first affidavit, made 26 July 2010, Mr Brown explained that he attended the meeting on 15 January, and arrived at the carpark at around 5.50 am. He noticed a fairly large group of employees from John Holland and other contractors onsite waiting for the meeting to commence. He also noticed four men standing near a ute at the front of the gathered crowd. He recognised one as Troy Smart, but did not know the others. The meeting started at approximately 6.15 am, when Mr Smart and another person climbed up onto the tray of the ute. He thought Mr Smart started the meeting by speaking about the crane incident. Following rulings on evidence counsel for the applicant was invited to lead Mr Brown in examination in chief as to what was then done or said. As to what one man, not Mr Smart said, he recalled the topic of the lack of barricading around the crane was discussed. He could not remember from which union this person was.
205 Mr Brown also recalled that this person spoke about the tower crane falling down and also about barricading and safety procedures. But he could not recall his exact words about the tower crane.
206 He also recalled this person speaking about rumours to do with the crane that had come down and that there might have been someone in the toilet block, or they had just left. The barricading was not sufficient, not good enough.
207 As to rumours about the toilet block, Mr Brown remembered this man saying that there might have been someone in the toilet block when the crane collapsed and thereafter.
208 However, he could not describe what the voice of this person was like when they said that.
209 Mr Brown indicated he was standing about three metres from the ute when all of this was happening.
210 He also remembers this person said that there will be an investigation ongoing.
211 Mr Brown said he did not think the man mentioned anything about the location of the barricading when that question was put to him directly.
212 Mr Brown said that in the crowd there were people speaking up and saying things like “walk out”. The man had explained to the crowd that if they chose to walk out there would be penalties and the like.
213 At that point in his evidence in chief (as the transcript of evidence at 128 discloses) it appeared to the Court that the witness was struggling a little bit, his voice was a bit low but when he was asked if he was having some difficulty, he said he would be fine and that he was just stuttering a bit. And that was sometimes a problem. The proceeding paused while Mr Brown refreshed himself.
214 When Mr Brown’s evidence continued, he was asked about how many people in the crowd were calling out “Walk out” to which he replied “there were just voices in the crowd”. He agreed they were quite vocal.
215 He confirmed this was the same man who was then talking. He confirmed he had no idea who the man was, he could not remember his name. As I have indicated above it obviously was not Troy Smart because Mr Smart was the one person he did know and was able to recognise when the meeting had commenced.
216 Mr Brown said that this man advised the crowd that there would be penalties involved if they walked out and he believed he advised them that they would have to get back to work. He then said he believed that later on he had said “We can’t tell you to walk out”. He considered that these words were said in a “mocking tone”. He remarked on the “rhythm in the voice” as one way of explaining this. The way he took it, the man was telling them that they could not tell the workers to go on strike but it was just like a “wink, wink, nod” sort of set up. Mr Brown added “that’s how I perceived things”. He believed the man was wanting them to walk out. Again he added, “that’s how I felt about things”.
217 I must say that I understood Mr Brown to be making the point that this was his particular perception of what was being stated.
218 Mr Brown recalls that each man stood up and basically said their piece about the safety and stuff like that and still there were people in the crowd saying “walk out”. He added (transcript 132), “I mean, I really can’t remember, I’m sorry”.
219 Mr Brown simply could not identify which person said what.
220 He recalled “They were saying that John Holland’s safety record was poor and getting information out of John Holland’s and Bechtel, it was pretty hard”.
221 When asked what was said about John Holland’s safety record being poor, Mr Brown stated: “I’m sorry, all I can go on is the contacts of the – I mean its been so long ago now … I can’t recall all of it, no”.
222 Mr Brown said “they’re using cuss words” used and added “I mean that’s what unions do really”.
223 When Mr Brown was asked whether Troy Smart used cuss words, his reply was “Not many. I can’t remember on that one, no”.
224 Mr Brown added that he really could not pick out each person, they took turns in speaking and “some blokes were swearing, okay”.
225 He did however recall that one expression used was “bunch of cunts”. He said this was directed towards management – John Holland and Bechtel, about how hard it was getting information out of them.
226 Again, Mr Brown indicated there were certain people in the crowd who were getting worked up.
227 Mr Brown was asked how the meeting ended. He said they had a vote towards the end. His evidence (transcript 135) was that:
I mean the people in – with everyone there and I believe a vote was put forward by someone on the back of the ute to walk out, yay or nay, and they yea – and the ayes had it. They had asked all those in favour to say ‘aye’ and you have a large bloke – and you had a large group of people say ‘aye’ and all those say ‘no’ and there’s no word – there was no sound and they said, ‘the ayes have it’, and that was basically at the end of the meeting.
228 He understood the vote was to walk out, but he could not recall the exact words the man on the back of the ute spoke.
229 After the vote was taken, Mr Brown observed making a beeline towards the gate and believed people were leaving and “we had some people walking towards the gate, too, with me”.
230 After an adjournment to deal with some observations of counsel for the AMWU, Mr Brown confirmed that he did not know which of the four men had said the words calling for the vote. He confirmed, however, his recollection and belief that it had come from the back of the ute.
231 He confirmed that when the meeting broke up, people were breaking away from the group and that he walked towards the gate with two apprentices on his team. He had noticed a few other people “walking towards the gate too. The rest? I didn’t even look back”.
232 In cross-examination by counsel for the CFMEU parties, Mr Brown confirmed that he believed that Troy Smart spoke first and introduced people. His was a familiar face at Worsley.
233 He agreed there were a lot of people around.
234 He could not recall whether all of the men on the back of the ute were speaking in loud voices. When asked whether Mr Smart had not spoken in an angry voice, he said he could not remember that, but that I understood the witness to say he could not remember Mr Smart speaking in an angry voice.
235 He could not recall whether Mr Smart used a lot of body language.
236 He could not recall Mr Smart using a lot of arm movements or arm gestures or hand gestures during the meeting.
237 He confirmed there were voices in the crowd calling “walk off”. But added, “It has been so long ago, that there were – as best as I recall, there were voices in the crowd yelling from time to time”.
238 However he did not know whose voices they were.
239 There were sections of the crowd off to his left and off to his right, but deep right he heard voices on the left hand side.
240 He confirmed that men on the back of the utility told the crowd that they should go back to work and should not go on strike. He also confirmed that they said there would be a problem with penalties but he could not identify who said this.
241 He confirmed that someone on the ute had made the vote proposal. However he did not recall seeing the person say the words only hearing them. When asked whether he had made an assumption that having heard the words come from the direction of the ute, they had come from someone who was standing on the ute, Mr Brown responded “Well, I suppose it could happen”.
242 When asked about how much noise was coming from the crowd, Mr Brown said the whole crowd was not yelling but there was yelling here and yelling there.
243 It was then put to Mr Brown that he was not able to say that the person who spoke the words proposing the vote was someone standing on the back of the ute, that that was just his belief, to which he responded:
I’m sorry. I am just trying to remember.
Counsel then said to Mr Brown that if he could not remember “just say you can’t remember”, to which Mr Brown responded:
Yes I guess I just can’t, you know, remember that part of it I suppose.
244 He also said that when the vote was taken, there was a “loud response”.
245 During cross-examination by counsel for the AMWU parties, Mr Brown confirmed a variety of reactions from the crowd along the lines of the earlier evidence that he had given.
246 In re-examination, counsel for the applicants in many respects endeavoured to restore greater certainty to Mr Brown’s recollection than he had exhibited during cross-examination. Notwithstanding this attempt Mr Brown indicated early on that “my mind has kind of gone”.
247 He was pressed again about the tone of voice people used and said “I’m not sure… I mean, at times they were talking loud and at times they were talking normal. Okay. I’m not sure”.
248 He confirmed he did not know who had spoken about the penalties.
249 Nor was he sure whether they were spoken by one person or more than one person.
250 However, he said they were spoken more than once.
251 He was asked when the question of the vote came up was he looking at each and every person when they spoke, or did he look away occasionally, to which he answered he “looked away occasionally; yes”.
252 He was asked then whether he recognised the voice, to which he answered “yes”.
253 When the matter was pressed Mr Brown answered (transcript 168):
At the time I’d say yes. Now, I really can’t – in the context of the vote, at the end, ‘the ayes, have it’.
He confirmed it was someone at the back of the ute.
254 As to the expression “pack of cunts”, Mr Brown in re-examination said it was used by more than one person on the back of the truck. He said it was used a few times but he could not put a number on it.
255 In my view, as I noted above, Mr Brown’s evidence got weaker the more he was asked to clarify his evidence. The burden of Mr Brown’s evidence was that strong language was used by some union officials which suggested John Holland and perhaps Bechtel had less than perfect safety records. He could not say which of the men had said what. What is remarkable about Mr Brown’s evidence, in my view, is that while he knew Mr Smart, could recognise him, and was familiar with him because he was on the Worsley site as a CFMEU organiser, Mr Brown was not able to attribute to Mr Smart directly any of the words that he had attributed to the collective group of union officials on the back of the truck.
256 Additionally, much of the focus of what Mr Brown had to say in evidence was on what some of the union officials said about going back to work and the way in which that was said. As stated above, in the light of the competing evidence between Mr Brown and Mr Pallot and Mr Hayes on this topic, I am not satisfied that the applicant has made out a case that either Mr Pallot or Mr Hayes spoke in the manner alleged by Mr Brown. Mr Brown’s evidence on the topic of tone of voice when union officials said “I can’t tell you go back to work” is, at best, in my view, highly impressionistic. Mr Brown was at pains, in effect, to say that this was his perception, what he believed, how he took the words. I am not prepared to find, on evidence of this quality, that this was in fact how Mr Pallot or Mr Hayes or Mr Smart actually spoke.
257 In the light of the evidence given by Mr Pallot and Mr Hayes as to the substance of what was said by them and the reason why they were at the meeting, I am not satisfied that the applicant, through Mr Brown’s evidence, has established that Mr Pallot said to the crowd words to the effect that “I can’t tell you to go back to work” in some ironic fashion which made it plain to all assembled that workers were, in fact, being invited to go on strike. If this sort of allegation were to be made out, the evidence would need to be much less vague or uncertain or circumscribed and qualified than Mr Brown’s evidence was.
258 In most respects the best evidence as to what was said at the meeting by the union officials is that of Mr Smart himself. Mr Smart thought that he was the second speaker after Mr Baker, followed by the others including Mr Pallot and Mr Hayes. Mr Brown, as noted, thought Mr Smart was the first speaker. That may well be because Mr Smart was the only person speaking who Mr Brown knew.
259 In cross-examination Mr Smart relevantly said:
He spoke relatively briefly, possibly 3 to 4 minutes maximum.
That he told the meeting that he had been in and seen the crane had fallen, there was some debris outside the exclusion zones and about them hitting the toilet, but most of the people on the site had walked by and visualised it for themselves by then and did not need much clarifying.
He told the meeting that he’d inspected the crane on both the Wednesday and the Thursday.
From his inspection he did not know much, bar what the union had subpoenaed and asked for.
That he expected those documents to be coming. He knew the ICAM’s were coming because of the discussion he had earlier that day with Mr Carrington.
That he spoke in a pretty level tone the whole time.
That he was at no great distance from the crowd, perhaps about 10 or 15 metres.
There was a high level of noise.
He read from the list of documents that he had been provided with from John Holland representatives and the purpose of doing so was to show that the union was taking the safety issues seriously.
That you want documents so you can learn from your mistakes.
That he did not recall saying that he wanted the documents because he thought or suspected that the barricading was inadequate.
He accepted by implication that in discussing his list of documents he said that it was pretty damn hard getting information out of John Holland and that was because they are covered by ComCare. He also accepted that implicitly.
He did not recall saying that the union did not have a right to get documents from John Holland because they are covered by different legislation, but seemed to accept it by implication.
Again, he did not recall saying “It’s hard getting documents out of John Holland” but he did not seem to seriously quibble with the proposition that he did.
In answer to the question whether he also said that John Holland had a bad safety record and that the accident was an example of this, he said there were a lot of Collie people down there that knew the last person that had died on a John Holland site and that was mentioned in the crowd and he thinks that he confirmed that to people that did not know.
He agreed that he would have said that John Holland have a bad safety record.
He did not think he said that this was “an example” of their poor safety record.
He accepted that he did say that John Holland had killed a worker in another workplace. He qualified his answer by saying that, “I would have said that he felled for a grid mesh and that was very brief”.
In answer to the question whether he described John Holland as a “bunch of cunts”, he said “I would have said some swearing word …” when pressed that he had precisely said that “John Holland is a bunch of cunts”, his answer was that “Could have been an f in front of it too”. He then answered “Yes” when counsel asked “A fucking bunch of cunts?”.
He did not say John Holland killed Wayne. He only said that he had died on a John Holland site. He denied that it was reasonable to suggest that what he was saying was that John Holland had a bad safety record because the man had died and John Holland were responsible for his death.
He said it would not be reasonable to draw that because it was “under inquest” so he did not know what the finding would be.
When he was pressed as to whether it would be reasonable for someone in the crowd hearing the different things he said to think he was saying to them that John Holland had killed Wayne, his answer was “If that’s the way they wanted to take it, that’s the way they would have took it”.
He was then asked whether it would be reasonable to do so – and then whether people could have inferred that “your words meant that John Holland was responsible for killing Wayne?”, he answered “possible”.
That there were a few people calling out that, in response to the question put to him that people got upset when he mentioned those things.
That the crowd was a little more heated than before.
That there was a lot of yelling going on.
That he could not recall everything that was said in the crowd because he was trying to address the meeting.
That some of the evidence he had just given was not in his statement but then 18 months is some time ago and that if something was not in his statement, then he did not recall it at that time.
In answer to the question, “you’re thinking it’s not a good look that you got up there on the back of the truck and you said the crowd ‘John Holland – you know, words to the effect, killed Wayne. They’re a pack of, you know, fucking cunts’?”. Mr Smart said “I don’t recall saying it in that order”.
When pressed whether it was a good thing to have said at the meeting, if he was wanting to keep the crowd under control, Mr Smart said “It’s a horse per course, you know. Some construction workers are hardcore and some are different so it depends on how people – it’s oranges and apples”.
When challenged as to whether there was anything to “report back” on at the “report back meeting”, Mr Smart indicated that the report back was to convey what information they had, where the investigation was going and what they had received from relevant authorities. He accepted he had limited information from the BHP’s ICAM.
That the CFMEU wanted to see that all of the procedures were right when the investigation was carried out.
That there was a lot of different hearsay on site so it was better for everyone to hear what was being said at the same time.
That it was correct that Bechtel and John Holland had put notices on noticeboards and that they were replenished throughout the day as the new facts became known.
That there was the additional information he had received that morning at the security hut.
That yes, it was correct that he had limited information, when challenged as to what he was able to put forward and whether any single fact he had was in addition to what John Holland and BHP were telling its employees.
That the meeting was about getting everyone together and speaking to what was out on site already.
When asked whether he had said at the meeting that this could have been another fatality like Wayne, he said that he did not know if he said those exact words, but rather said that it is a level one grade safety issue. When pressed, he said no, he had not said it could have been a fatality like the one that killed Wayne. He agreed however that it would have been the crane to fall down it nearly killed someone, to the effect that it could have been worse; someone could have been killed.
When challenged about [76] of his affidavit, where he stated “I recall mentioning John Holland’s safety record because several workers had died on other sites, but I do not now recall the exact words I used”, Mr Smart was challenged that his was so lacking in detail as to be positively misleading, to which he replied “You can assume that” and when pressed further he said that John Holland in fact did not have a good safety record. That was the fact. It was not his view it was a fact.
When pressed whether he had mentioned Australia wide deaths, he said that he would have said their record around Australia has not been good of late.
He thought most John Holland workers knew of the record.
He denied that when he said these words he was going to provoke a reaction from the crowd.
He considered the crowd was vocal before that.
He denied that he knew what was going to happen after telling the crowd that John Holland killed Wayne when the crowd became more vocal and upset.
He denied that he said those things because he was wanting to get that reaction.
He denied that this was pivotal to his purpose in holding the report back meeting, that he wanted people to become upset.
He mentioned Wayne’s death because the record of John Holland, most of the John Holland workers knew that already, he was just stating previous history.
In relation to swearing on construction sites, he agreed that he had “said similar words” to “fucking bunch of cunts”, but did not recall exactly what he said, but it was similar to that.
That there were angry people, when asked whether there was an atmosphere of tension and a potential for workers to go on strike.
The reason that Mr Pallot came along was because of that fear that people would go on strike and to get them back to work and to dispute resolution.
That there were some people who had indicated that they were angry.
That he went through the safety issues with people.
That at the meeting there were people swearing.
That people were upset because the crane had crashed and there were some people who were upset.
That he did not accept that swearing caused people to become more upset, that is the language that gets used on the site.
That he was not upset himself, and used his normal tone, that he was not a loud speaker.
He did not recall saying to the crowd that there may have been someone inside the toilet block at the time it got hit by the crane, but when challenged as to whether there is a possibility he may have said those words, said it was possible.
That the reference to the crane and the toilet in the union bulletin was from information he supplied on the 13th, before he even met Mr Carrington on the 14th.
When asked why he did not take the step of ringing someone to ask if the rumour about someone being in the toilet block was true, he said that some of his days he receives three or four hundred phone calls and there are issues to be dealt with.
He did not say at the meeting “I don’t think you or we are being told the full story”, only that it was hard to get information from John Holland and Bechtel. He said they were still in the process of gathering information. He said that they had requested information to see if there were any procedures, things that had been missed out on.
He did not say to the meeting “You have a choice about what you would like to do” and he did not say “Whatever you decide, you have the full support of the CFMEU and AMWU”.
He did not say “We can’t tell you to strike”.
He thought that he and Mr Baker were quite brief as speakers and that Mr Pallot and Mr Hayes probably spoke for 5 to 7 minutes each, maybe a bit longer, whereas he and Paul were probably 5 to 6 minutes.
He did not wave his arms about when he spoke.
That he did not, and nor did anyone else on the back of the ute, say “You have a choice about what you would like to do”.
Nor did he say that “Whatever you decide you have the full support of the unions”.
He did not say “If you do decide to strike we will support your decision”.
That he did not hear the crowd yelling “Strike, strike, strike”.
He said that what was said quite loud was “If you are going to do what you’re going to do you need to go back into the gate”.
He denied that he or others had said “All those in favour of walking off today say ‘aye’”.
He denied that there was a giant collective “aye”, and denied that there was a call for “nays”.
He confirmed that someone in the crowd towards 7 am had yelled out “Let’s fuck off for the day and come back on Monday”.
He confirmed that because it was getting close to 7 am, he and the others wanted to get the workers back through the gate so that they did not get docked for four hours pay for being late.
His recollection was that after someone said “Well, fuck that, I’m going home” the crowd roared to an extent and people started dispersing.
That when someone said “Let’s fuck off” it was said in a very loud manner.
When it was put to Mr Smart it was simply not believable that close to 7 am a lone person in the crowd yelled out “Let’s fuck off” and everyone not only heard that, but obeyed it, Mr Smart said that was what he had observed. There was a bloke that said that and a few people moving to cars, jumping in the cars, some milled about, some jumped in the cars, some came up and said “What’s going on?” and that he and the others still encouraged them to go back into work, but obviously they had made their minds up to go for the day. He was still trying to get people who were milling around to go back into the site.
260 Mr Smart thought that he did not speak for all that long. My general impression is that it would have been about six minutes. However, the estimate of time is not that important because none of the evidence suggests that Mr Smart – or indeed any of the other speakers – spoke at great length. They were all conscious the workers needed to be at their shifts at 7 am.
261 It is relevant to note, as I have above in setting out the facts agreed by the parties and my findings in relation to the facts asserted by the applicant which the respondents did not accept, that Mr Smart had initially heard about the tower crane collapse on the day it happened, 13 January 2010, and had rushed back to the site from where he was then driving to meet with Mr Carrington, who did the same. They then agreed to meet the next day. Mr Smart and Mr Carrington then had a discussion on 14 January. I consider that at that meeting the rumours were raised and discussed about someone having been in the toilet block, either at the time of the tower crane collapse or just before it, and that a joke was shared. I also consider Mr Smart, from that point, did not himself hold strongly to the view that there had been someone whose life had been imperilled or who was lucky to have got away just before the crane collapsed. There were some questions about barricading but they were not particularly advanced at that point.
262 I also accept the evidence of Mr Smart, and indeed Mr Pallot, which in many ways is confirmed by all of the other witnesses including Mr Brown and Mr Shaw, that word of the tower crane collapse got around the Worsley workforce rather quickly. Mr Smart and Mr Pallot both say they received many calls. One might also accept from all of the evidence that the CFMEU parties took their responsibilities at the site very seriously. No doubt as union organiser Mr Smart, and Mr Pallot, as a senior CFMEU official, were anxious properly to reflect the concerns and interests of their members in the aftermath of the crane collapse. It must also be remembered that this tower crane was a very large piece of equipment, not the usual run of the mill crane. Its collapse was something of an event, and quite unexpected.
263 No doubt for many workers, and this is emphasised by the number of calls made to people like Mr Smart, the collapse caused general consternation. Questions were being asked about what this meant in terms of safety practices on site. Plainly from Mr Smart’s evidence, John Holland’s practices in the safety area had raised questions in the past, because a man had died on the worksite at another John Holland workplace in the North West of Western Australia. From the CFMEU perspective, any event like this was likely to raise serious concerns for their members.
264 The strategy of the CFMEU following the meetings of Mr Smart with Mr Carrington and others onsite on both 13 January and then 14 January 2010, was to arrange for a “report back” meeting onsite on the morning of 15 January 2010. In that regard I have no hesitation in accepting the evidence, which the applicant was at pains to exclude, that Mr Pallot, amongst others, tried to organise a meeting on site during work hours so that members of the unions could attend and would not be docked pay. In the end, however, the applicant’s representative was not prepared to accede to that. Thus, the unions called the meeting in the carpark before the 7 am shift commenced.
265 At the meeting, the applicant’s industrial relations representatives were all on hand. However, they did not get so close to the meeting that they were able to note who said what or who was in attendance. They were at the security hut nearby, observing from a distance.
266 I have little doubt, relying on Mr Smart’s evidence, that he was seriously concerned about the tower crane incident and that, while he did not personally hold the view that anyone’s life or safety appeared actually to have been put at risk, from what he was told by Mr Carrington, he nonetheless considered this type of accident on a workplace might well have endangered the life or safety of members of the union and was an occasion that called for close investigation to ensure that nothing like this would happen again.
267 In the event, I accept that Mr Smart said and did the things largely as he described them in his affidavit evidence and also in cross-examination. As I have noted he was probably the best witness on both sides when it came to describing what actually happened at the meeting. I do not accept, however, the applicant’s portrayal of Mr Smart as a hothead who was provoking the crowd to strike. I accept Mr Smart was a person who had learnt to control the modulation of his voice, not to shout but to speak normally. There is nothing particularly in Mr Brown’s evidence, I should add, that suggests that Mr Smart or any of the speakers were particularly agitated. In cross-examination Mr Brown that Mr Smart did not throw his arms around or the like.
268 Mr Smart was not prepared to deny the propositions, in cross-examination, and agreed that he had probably mentioned the man and his name who had died on the John Holland worksite in the NorthWest I find that he did. He also was prepared to accept, in my estimation, that he probably did use bad language – I would say most definitely that he did – including the “cuss words” already recited on enough occasions in the evidence above. I also accept, however, Mr Smart’s evidence that at a meeting of workers on a worksite like this, in circumstances where a giant crane had collapsed, was bound to be robust. To some extent, as I understand the evidence of Mr Smart and Mr Pallot to be that there is even an expectation that such a meeting should be robust; that the speakers should show righteous indignation at what appears to have happened.
269 In circumstances where the tower crane had collapsed and employees might have been placed in considerable danger from the collapse, an organiser like Mr Smart, at a report back meeting, could be expected to reflect on the rumours which had been flying around the workplace. This is what he said he did. It is suggested on behalf of the applicant that for Mr Smart to have perpetuated a rumour, when he knew it not to be the case, was however an obvious act of provocation, likely to contribute to the workers striking. On the facts of this case, I do not agree. The facts clearly are that workers were concerned about the safety implications of the crane collapse. They were wanting information about what had happened. The meeting was called for the unions to report back. Mr Smart, I accept, was pointing out to the workers that it was hard to get information from John Holland and Bechtel. That is not just a rhetorical flourish. The fact is that the union had requested information from John Holland. Mr Smart – in response to things called from the crowd – acknowledged John Holland’s poor safety record as he considered it to be, and mentioned the death of the worker in the NorthWest. He thereby projected to the members that he was trying to do his best to represent the interests of members in looking into this event.
270 In the end, I construe the conduct of Mr Smart at the meeting, including the things that he said, as representing to persons in attendance that the CFMEU and he and Mr Pallot were taking seriously the concerns that had been expressed him by workers, including that the collapse of the tower crane could have been catastrophic in terms of human life and safety, and that they were doing all in their power, in dealing with a difficult employer, to get appropriate information for the members.
271 I have no doubt that the CFMEU was wanting to show its members that they were not taking the concerns of the members lightly. The language used at the meeting, given the general concern of employees expressed at the meeting – which can be adjudged from the calls for “walk out” which plainly were coming loudly and frequently at the meeting – may well have been construed by some persons at the meeting to be a justification for walking out. However, I do not consider that they can be fairly construed as an invitation to do so used by Mr Smart, or Mr Pallot.
272 I also consider that on the evidence the respondents are correct to submit that there is in fact no evidence of a particular claim being formulated at the meeting in respect of which these employees may be taken to have supported or advanced. At best was a notion that John Holland had a poor safety record. In my view, no motion for a walk out based on this bad record was expressly or constructively put to the meeting.
273 As I have already found above, I do not accept that Mr Pallot (or Mr Smart or Mr Hayes) spoke to the persons at the meeting in a tone which effectively invited them to strike. In that regard I have commented on Mr Brown’s evidence. While I consider Mr Brown honestly held the view he assessed in evidence, I do not take it to be evidence upon which I can reasonably found a view that this is the way the speaker or speakers actually spoke on the occasion in question.
274 I also do not accept that Mr Smart spoke in language that invited the workers to walk out.
275 Mr Smart reasonably accepted that when he made reference to the death of the man on the John Holland site in the NorthWest, that some persons might have been provoked by that. But his answer to that question was not that they were, but that reasonably someone might have been. That however was one comment amongst many in a robust report back meeting.
276 Plainly what did happen as a result of this meeting, in my estimation of the evidence, is that a number of anxious workers were not mollified by what they heard, were not satisfied when they were told by Mr Pallot and Mr Hayes that they should not strike and decided to withdraw their labour from the site that day.
277 The evidence concerning whether or not there was a vote taken is unclear. Mr Brown was adamant that a person called for a vote to walk out, there was a call for ayes and nays and then a large response supported the walk out.
278 I have to say that Mr Brown’s evidence as to whether it was actually a person on the back of truck is quite uncertain. In cross-examination he could only say that he heard a voice from the direction of the back of the truck. In re-examination counsel tried to tighten that evidence up a little but, in the end, I consider the most that can be said is that Mr Brown heard a voice from the vicinity of the truck calling for a vote.
279 I accept though that there must have been some call for a walk out, whether or not it was “voted” on in some formal way as Mr Brown suggests. Mr Pallot accepts that someone in the crowd called for a walk out. I have the impression from all of the evidence that there was some general acclamation in the vicinity of whoever proposed that. I do not, however, accept that the union representatives on the back of the truck, including Mr Smart and Mr Pallot actually proposed any such vote. I accept Mr Pallot’s evidence, in particular, that the language of “yay” and “nay” are not in his usual union vocabulary. In the circumstances I accept that there was some sort of call for a walk out, but that it was from within the crowd, and having regard to Mr Brown’s evidence, most probably came from a section of the crowd packed in more closely to the back of the utility and not too far from where he was.
280 The reaction of the crowd, according to Mr Brown’s evidence, is also interesting to note when weighing up just what sort of resolution, if any, was put and how it was responded to. He explained that he and his apprentices walked off to the gate, that is to say, off to work. He did not look back. The evidence generally supports the view that there was some general milling about with people going in different directions after the meeting. There is clear evidence that a number of cars left the carpark. This is evidence from which I may reasonably infer that some, but not all, persons who attended the meeting returned to their cars and left the cars without going through the gate into the site.
281 All in all, I am satisfied that a number of people who attended the meeting who were employees of John Holland decided to not report for work that day. I am also satisfied on the evidence that some may well have gone through the gate, reported and then left their shift before it ended later that day.
282 But I am not satisfied on the evidence, that generally speaking, anything said or done at the report back meeting by Mr Smart or Mr Pallot was the cause of them doing so. Rather, I consider that the general agitation of workers, the subject of much evidence, including from Mr Brown, was not reduced by what they heard from Mr Smart and Mr Pallot (or the other speakers) at the meeting.
283 In these circumstances, taking into account the quality of the evidence adduced by the applicant to prove that the CFMEU parties provoked a strike, and the fact there is no evidence of any of the 51 employees having been at the meeting, I am not satisfied that the applicant has shown that the 51 John Holland employees mentioned in annexure “A” whose conduct is pleaded in [9(b)] of the statement of claim were motivated in taking the building industrial action they took, by the purpose of supporting or advancing claims relating to occupational health and safety against John Holland in respect of the employment of employees of John Holland.
involvement
284 In any event, I am not satisfied, having regard to the evidence I have just recounted, that either Mr Smart or Mr Pallot were involved in any contravention. I do not consider they aided, abetted, counselled or procured the contravention, if there were one. I do not consider they induced the contravention, if there were one. I do not consider that by their acts or omissions they directly or indirectly were knowingly concerned in the contravention. I do not consider they conspired with others to effect the contravention. Their conduct fell short of provoking the building industrial action identified by the evidence.
constitutionally-connected
285 I am satisfied that, for the purposes of the definition of unlawful industrial action, that the building industrial action was “constitutionally-connected”.
286 In that regard the action adversely affected John Holland, a constitutional corporation, in its capacity as a building industry participant. I refer to [92]-[116] of the no case ruling in this regard which I adopt here.
287 It also appears to me that the building industrial action I have inferred on the part of the 51 employees in annexure “A” was related to work that was regulated by a Commonwealth industrial instrument. I have rejected above the submission of the CFMEU parties that the relevant agreement identified by Mr Smart is not appropriately before the Court.
288 I make these findings as a matter of record, as they do not affect the necessary outcome of this proceeding, namely, that the applicant has failed to establish on the balance of probabilities that the building industrial action pleaded was industrially-motivated as defined in the BCII Act.
conclusion and order
289 In these circumstances the applicant has failed to establish that the CFMEU parties engaged in unlawful industrial action contrary to s 38 of the BCII Act.
290 The Court would order that:
1. The application of the applicant be dismissed.
291 The Court will hear from the parties as to what other orders, if any, should be made.
| I certify that the preceding two hundred and ninety-one (291) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Barker. |
Associate:
