FEDERAL COURT OF AUSTRALIA

Fair Work Ombudsman v Offshore Marine Services Pty Ltd (No 2)

[2013] FCA 943

THE COURT ORDERS THAT:

1.    The parties bring a minute of declarations and orders to reflect these reasons within 14 days.

2.    Failing agreement as to the declarations and orders to be made, the parties have liberty to apply.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

Introduction

1    The applicant, the Fair Work Ombudsman (FWO), seeks relief in the nature of declarations and penalties against the second respondent, the Maritime Union of Australia (MUA). It is only the declaratory relief which is presently sought with the question of penalties, if any, to abide the outcome of whether declaratory relief is granted or not.

2    The first respondent, Offshore Marine Services Pty Ltd (OMS) specialised in providing labour support to offshore vessels operating off the coast of Western Australia within the oil and gas industry. On 17 May 2012, in these proceedings, the Court declared that OMS had contravened s 792(1)(d) of the Workplace Relations Act 1996 (Cth) (the WR Act) and s 346(a) of the Fair Work Act 2009 (Cth) (the FW Act). The declarations were made on the basis of OMS’s admissions to these contraventions: Fair Work Ombudsman v Offshore Marine Services Pty Ltd (2012) 219 IR 435.

3    The case against the MUA concerns the attempts by Mr Bruce Love and Mrs Lynne Love (together, the Loves) to obtain employment with OMS as cleaners and/or stewards on offshore vessels. They had relocated to Perth from Melbourne in December 2008. Their contact person within OMS was Ms Tamianne McSherry (formerly Wright) who was a Crewing Officer employed by OMS. She went out of her way in her many attempts to have OMS employ them. They were never employed by OMS. This was so because they were not members of the MUA. They had each applied in writing to join the MUA as at 25 February 2009 and probably also earlier in January of that year. Their unsuccessful efforts to gain membership of the MUA and in turn employment with OMS persisted throughout 2009.

4    I find, for reasons I set out below, that at the time the Loves first applied for employment with OMS in January 2009 and for the balance of that year there existed within OMS an employment practice by which membership of the MUA was a prerequisite for employment with OMS in areas covered by the MUA (the OMS employment practice).

5    I find that during the same period the MUA had a related practice of granting memberships to persons offered employment with OMS only when there were no existing MUA members available to take up that offer of employment (the MUA membership practice). The objective of the MUA was to ensure that its current members received preference in employment within OMS.

6    Each of OMS and the MUA knew of the others practices and each knew that the achievement of MUA’s objective depended on maintenance by OMS of its practice. Indeed, I find that the MUA effectively procured the instigation and maintenance by OMS of the OMS employment practice. The two practices were knowingly and deliberately inter-related and interdependent.

7    These practices constituted a form of “closed shop” and I will refer to them together as “the closed shop”. The Loves were victims of these unlawful industrial practices.

The FWO case

8    The case of the FWO is that the MUA was involved in contraventions of s 792(1)(d) of the WR Act and s 346(a) of the FW Act by OMS and that consequently, by virtue of s 728 of the WR Act and s 550 of the FW Act, the MUA is itself taken to have contravened those civil remedy provisions.

9    The FWO further, and in the alternative, contends that the MUA is liable as a principal for contraventions of s 346(a) of the FW Act by taking adverse action against the relevant prospective employees of OMS because the prospective employees were not members of the MUA, such “adverse action” being the prejudicing of the employees in “prospective employment” (s 342, item 7(b)). It also contends that, before 1 July 2009, the MUA also contravened s 796(5)(a) and/or (b) and/or s 797(3)(a) and/or (b) of the WR Act by:

(a)    advising, encouraging or inciting the employer, OMS, or threatening to take industrial action against OMS, so as to cause OMS to take action in relation to the Loves that would, if taken, contravene s 792(1) of the WR Act, namely, refusing to employ the Loves;

(b)    taking action that had the effect of prejudicing the Loves in their prospective employment, namely, refusing the Loves MUA membership and/or advising, encouraging or inciting OMS to not employ the Loves; and/or

(c)    advising, encouraging or inciting OMS to take action which had the effect of prejudicing the Loves in terms of their prospective employment, namely, to not employ the Loves because they were not MUA members.

10    The amended defence of the MUA dated 4 April 2013 generally denies involvement in the relevant contraventions.

11    The FWO read the following affidavits:

(a)    Ian Del Rosso sworn 10 August 2012 and 2 April 2013;

(b)    Marten Andrew Quirk sworn 10 August 2012 and 28 March 2013;

(c)    Lynne Christine Love sworn 6 August 2012;

(d)    Bruce Edward Love sworn 27 July 2012 and 2 April 2013;

(e)    Georgina Kate Mayman Rosendorff affirmed 10 April 2012, 13 August 2012 and 2 April 2013; and

(f)    Tamianne McSherry affirmed 28 March 2013.

The parties

The FWO

12    The FWO is and has been at all relevant times since the commencement of this proceeding:

(a)    appointed by the Governor-General by written instrument to the office of Fair Work Ombudsman, pursuant to s 687 of the FW Act;

(b)    a Fair Work Inspector pursuant to s 701 of the FW Act;

(c)    a person with standing under s 718(1) of the WR Act, as it continues to apply by virtue of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) (Transitional Act) after the WR Act repeal day, to apply for penalties and other remedies in relation to contraventions of the applicable provisions of the WR Act;

(d)    an eligible person under s 807 of the WR Act, as it continues to apply by virtue of the Transitional Act after the WR Act repeal day to apply to the Court for orders, including penalties, in relation to a person who has contravened a WR Act civil remedy provision; and

(e)    a person with standing under s 539 of the FW Act to apply for orders in relation to contraventions of the FW Act.

13    Pursuant to item 11(1) of Pt 3 of Sch 2 of the Transitional Act, the WR Act continues to apply, on and after 1 July 2009 (the WR Act repeal day), in relation to conduct that occurred before the WR Act repeal day.

14    Pursuant to item 13(1) of Pt 3 of Sch 18 of the Transitional Act, for the purposes of the application of the WR Act to conduct that occurred before the WR Act repeal day, an application that could have been made by a Workplace Inspector may be made, on or after the WR Act repeal day, by a Fair Work Inspector.

15    The application made by the FWO is an application that, before the WR Act repeal day, could have been made by a Workplace Inspector under s 718(1) of the WR Act and s 807 of the WR Act.

OMS

16    OMS is and was at all relevant times:

(a)    duly incorporated under the Corporations Act 2001 (Cth);

(b)    conducting a business specialising in providing labour support to offshore vessels operating within the oil and gas industry;

(c)    an employer within the meaning of s 6 of the WR Act in so far as it employed employees in Perth in the State of Western Australia;

(d)    a national system employer within the meaning of s 14 of the FW Act, in so far as it employed employees in Perth in the State of Western Australia; and

(e)    an employer of various employees who were members of, or eligible to be members of, the MUA.

The MUA

17    The MUA admits by its defence that it is, and was at all relevant times:

(a)    an organisation within the meaning given to that term by the WR Act and FW Act and the Fair Work (Registered Organisations) Act 2009 (Cth) (FWRO Act);

(b)    a body corporate by reason of s 27 of Sch 1 of the WR Act and s 27 of the FWRO Act; and

(c)    an industrial association within the meaning given to that term by s 779 of the WR Act and s 12 of the FW Act.

18    At the close of the FWO’s case, the MUA elected to call no evidence and made a “no case submission”.

The facts

19    From October 2007 to May 2010 the MUA was the union representing the majority of the OMS workforce. Ian Del Rosso, Executive General Manager of OMS and Marten Quirk, its Human Resources Manager, dealt with the MUA regularly. Quirk worked in that capacity at the Perth office of OMS from October 2008 to September 2010 and as its General Manager, Crewing from September 2010 to the present. His responsibilities as Human Resources Manager included the selection, recruitment and management of employees and as General Manager, Crewing, his responsibilities included all crewing matters arising with respect to employees, including matters involving the various maritime unions.

20    The issues the MUA raised with OMS between about mid 2008 to late 2009 (the relevant period) included crewing, pay disputes, industrial issues, vessel inspections, enterprise agreement negotiations and negotiations for specific Memorandums of Understanding (MOU). MUA officials at its Western Australia Branch involved in communications on these matters with OMS included:

(a)    Chris Cain, Western Australia State Secretary of the MUA;

(b)    Ian Bray, Western Australia Assistant State Secretary of the MUA;

(c)    Will Tracey, Western Australia MUA State Organiser; and

(d)    Michael Canning, MUA Western Australia State Organiser.

21    Ms Tamianne McSherry (formerly Wright) was an employee and/or agent of OMS acting in that capacity within the scope of her actual or ostensible authority. She worked at the Perth office of OMS and had direct responsibility in her position as “Crewing Officer”, for the placing of employees of specific classifications, including stewards, on offshore vessels. Her responsibilities included offering employment to individuals on behalf of OMS.

22    I will, for the sake of convenience and ease in appreciating the evidence, refer to Ms Tamianne McSherry as Ms Wright as this was her surname at all relevant times and it is that name which appears throughout the documentary evidence.

23    Ms Wright said that she was one of approximately 10 Crewing Officers at OMS and when she joined she learned from them and from Quirk, including during crewing meetings, of a practice within OMS which involved deliberately not placing employees on vessels where the employees were not members of the MUA. The Crewing Officers were authorised to place employees on vessels and to decide which employees were offered placements. However, as she stated, these decisions were subject to the practice set out above.

24    She explained that the practice which she and the other Crewing Officers followed to fill a role would involve looking at an emailed list or spreadsheet which Quirk or Del Rosso provided to them from time to time.

25    This list was from the MUA database and listed names, positions and contact details of “beached” members of the MUA who were available to be placed on vessels. “Beached” MUA members were those presently out of employment. When a job came up she would initially contact MUA members from the list or from other information sources available to her. If her attempts to fill the position with an MUA member were unsuccessful she would then consider non-MUA members.

26    During the relevant period, officials from the MUA would regularly contact Del Rosso or Quirk by phone or in meetings in person to pressure OMS to employ only people who were members of the MUA. Del Rosso, when asked what it was that led him to the conclusion that such pressure existed was somewhat equivocal in his response. He said that OMS “had to - or there was a preference” for it to utilise the database as a means of recruitment. The “database” is the same document which Ms Wright described as a list emailed to Crewing Officers from time to time. He later said the MUA database was to be used as the predominant document in OMS obtaining recruits. It is equivocal obviously in the language employed. However, it is so also because the focus of his attention was on the use of the MUA database rather than any actual employment practice. However, the tenor of the statements both written and oral which I have set out below demonstrate that indeed commercial pressure, as I have described it, was brought to bear against OMS by MUA officials in the form of intimidating and threatening language.

27    The officials who would contact Del Rosso and Quirk included Cain, Bray, Tracey and Canning.

28    Quirk describes these telephone calls as “unpleasant” and states that the MUA officials used abusive language and threatened to stop or disrupt a job on a boat if OMS did not meet their demands. I accept this evidence. Del Rosso agreed in cross-examination that at times the MUA’s advocacy was vigorous, intrusive, heated and even abusive. This was characterised by senior counsel for the MUA as in the nature of the seafaring industry which was a “boisterous” one. Del Rosso agreed to this as well but added that it should not need to be that way. However, boisterous conduct is not to be equated with commercial intimidation by the use of threats.

29    During the relevant period when non-union labour was placed onboard vessels, MUA members on those vessels would advise their branch officials that this was the case and the MUA would take this up as an issue with OMS.

30    Quirk received phone calls from MUA officials in which he was told, in words to the effect “Get these people [non MUA members] off [the boat]” and “our existing employees won’t work with these people [non MUA members]”.

31    During the relevant period MUA officials told Del Rosso not to send prospective employees to the MUA office to sign up as members as the MUA already had enough members.

32    On 3 August 2008, Bray emailed Del Rosso regarding the filling of a position on an offshore vessel, stating, inter alia, “When I spoke to you it was agreed that the position would be filled by an MUA member...Can you please confirm that OMS will send out a ticketed FRC IR to the vessel ASAP?”

33    From October to November 2008, Quirk received a couple of telephone calls from Cain and Bray relating to the placement of staff on vessels by OMS. In one of the conversations either Cain or Bray said to Quirk, “There are still people out there who are not on our books. Do something about this or we’ll shut down the vessel”. I infer that the expression “not on our books” is a reference to people who were not members of the MUA.

34    On 9 October 2008, Bray emailed Quirk with a copy to Cain regarding several outstanding issues to be resolved, including the following assertion:

3. Non union personnel being sent to vessels.

35    On 9 October 2008, Quirk emailed Bray in response later that same day and in respect of numbered para 3 in Bray’s email he said:

3. I have a draft memo for the crewing officers to give them advice on an internal process for this not to occur. In summary this follows your rules and includes some of my own. And agree this is not acceptable and is to not occur from this point onwards (fingers crossed).

36    Quirk’s use of “your rules” I infer to be a reference to the MUA’s requirement that OMS employ only MUA members. I find it probable that Bray would have either forwarded this email to Cain or told him of its content. They each, and therefore the MUA, then knew that OMS was formalising, in written form for distribution to its Crewing Officers, an internal process to ensure that non-MUA personnel were not to be employed on vessels. This was a clear indication to the MUA that OMS had formally succumbed to its demands for a closed shop.

37    This draft memo, in its final form, was the “MUA Membership Memo” which Quirk emailed to the OMS Crewing Officers on 6 November 2008. I will refer to this Memo later.

38    On 10 October 2008, Quirk emailed Cain in response to a query as to whether an OMS employee was an MUA member:

Mike Stafford has apparently had phone calls from you saying that Stephen is not qualified or does not have a Union book to be able to join the vessel. I have rung The cook and he advises me of the following: .... Membership current .... I hope this clarified any doubt.

(Transcribed without amendment)

This and the following email are examples of Cain monitoring the maintenance by OMS of the OMS employment practice.

39    On 15 October 2008, Cain sent an email with the subject “Shorthand C8” to Del Rosso, Bray, Tracey and Canning, which stated:

Ian, we need to have a meeting on the labour especially the stewards and caterers that are not being picked up. I am sick of hearing that your staff are picking up first trippers whilst we have a people on the database. I sent you an email a while back on this issue with no reply. Regards Christy Cain.

40    On 15 October 2008, Tracey sent an email to Cain, and copied to Del Rosso, which stated, inter alia:

… Again another issue with what the OMS staff are doing off their own bat. There have been issues with them running off guys who raise issues and splitting up some of our guys. If this is the way they are going to deal with us and some of these girls can’t get there head around what an organised industry looks like or what a relationship with the MUA means then we should respond appropriately and maybe, just maybe, the message might get through ….

41    On 15 October 2008, Del Rosso replied to the email from Tracey and copied in Cain, Bray, Canning and Quirk and stated:

This shows the issues we are having with the mua when chris or ian are not around, no disrespect intended to anyone, however, if you think you have the shits then I welcome you to sit in my seat, this is a false accusation and purely an assumption I can assure you I don’t have time to think of this sort of stuff and neither does anyone else in the mua. I will not tolerate messages such as this or those sent via reception demanding calls on the threat of stopping a vessel sailing we also have a right to move crew around and insinuations such as this are unfounded. I am happy with the good communications and good working relationship we have with all the mua. This was handled by marten quirk yesterday and you need to hear both sides of the story to get the whole picture not just make assumptions on your opinions.

[Transcribed without amendment]

42    In around October 2008, Del Rosso was reminded by both Cain and Bray that he and other relevant personnel within OMS were required to consult the MUA database of its members provided by the MUA to OMS from time to time. He was also told that reference was to be made to this database rather than reliance on applications sent directly to the OMS offices.

43    The provision of this database by the MUA to OMS, I find, was to enable OMS to know who were MUA members in applying the OMS employment practice and indeed to ensure that OMS maintained this practice.

44    The subject of non-MUA members being employed on occasions by OMS arose on various occasions. For example, Bray sent an email dated 15 October 2008 to Del Rosso and copied to Cain, Tracey, Canning and Quirk which included:

We also want the issue of non union caterers or Hydrocarbon caterers addressed. We would like OMS to identify all caterers currently employed on [vessel] Castoro shown to us and if there are any out there then it needs to be remedied.

45    On 23 October 2008, by email to Quirk copied to Del Rosso and Cain, Bray responded to the 9 October 2008 email from Quirk by stating, relevantly:

Martin, … Point 3 [a reference in Bray’s 9 October email to non-union personnel being sent to vessels] will continue to be monitored.

46    This was a direct reference by Bray to whether non-MUA personnel were being sent to vessels. That it was to be monitored by the MUA was, I infer, from the context of the communications as a whole to this date a warning that the MUA would be checking OMS employees to see that non-MUA personnel were not given employment on vessels to which labour was supplied by OMS.

47    During the second half of October 2008, Quirk received a number of telephone calls from officials of the MUA to the effect that all people going out on to vessels should only be people that were in the MUA. These calls were mainly from Cain and Bray and to a lesser extent, from Tracey. During these calls, the language used by these MUA officials was abusive. In some of these conversations the MUA officials would threaten industrial action if OMS did not comply with their demands. The type of industrial action that was threatened was that the MUA would instruct crew not to perform certain key tasks which would result in the crew not being able to perform its normal contractual obligations.

48    Ms Wright gave evidence that she sent persons on a number of occasions to the MUA offices to apply for MUA membership. She said she received telephone calls from someone from the MUA offices telling her she should not be offering jobs to people who were not MUA members and that jobs should be given only to beached MUA members. She said that a number of calls involved the MUA representative shouting at her and using terms of abuse. I believe her evidence.

49    Prior to 6 November 2008, Quirk received a call from either Cain or Bray and was told “there are still people out there who are not on our books”, meaning people who were not members of the MUA, and he was told to “Do something about this or we’ll shut down the vessel”.

50    On 6 November 2008, Quirk sent an email to Crewing Officers of OMS and copied to Del Rosso with attachments which included a Memo, of the same date, concerning “MUA Membership” (MUA Membership Memo). This Memo, as I mentioned, had been foreshadowed by Quirk in his email of 9 October 2008 to Bray. The Memo was in the following terms:

To:    Crewing Officers

From:    HR Manager

CC:    Ian Del Rosso

Date:    November 8th 2008

Re:    HRMGR 002 – MUA Memberships

____________________________________________________________________

To All Crewing Officers:

RE: MUA MEMBERSHIPS

Recently some seafarers have been engaged without a MUA membership. At present the MUA has 100% coverage on all positions that are covered by the MUA.

MUA cover the following positions:

. . .

Prior to being engaged offshore the question needs to be asked “are you in the MUA?”

If the answer is No then a process needs to occur prior to the seafarer going offshore.

1.    Advise Seafarer that the HR Manager needs to be consulted and we will get back in touch to discuss further.

2.    HR manager is to determine whether or not no other MUA members are available for work using all available means available.

3.    If no other MUA members are available for employment the HR manager is to discuss the situation with an Elected MUA official.

4.    If MUA official agrees to consider the person going offshore then the seafarer is to be contacted and advised that he needs to have an appointment made at the MUA branch closest to the potential employees home address.

5.    If the MUA Official decides to approve the person for a membership then the seafarer will pay for the membership and get signed up at the appointment with the union official.

6.    When the Union official advises that the person has a Membership (“Book”) then OMS will engage the seafarer for the position.

    •    At no point is the Person employed prior to having a Union membership and at no times are Flight Details to be sent to the person prior to a Union Membership being issued.

    •    At no point is a Rating to be sent to sea without a MUA membership.

    •    If at any times the crewing officer is in any doubt then the HR manager is to be consulted.

51    It was this Memo which formally recorded the OMS employment practice.

52    From 6 November 2008 and continuing the MUA was aware of the OMS employment practice. Indeed, it had prior to that time advised, encouraged or incited OMS to adopt and maintain the OMS employment practice within the meaning of ss 796(5) and 797(3) of the WR Act. It also, after that time, advised, encouraged or incited OMS to maintain the OMS employment practice which is established by the balance of the findings of fact I have made. The MUA, by its officers I have identified, threatened industrial action against OMS if it did not implement and maintain this practice. It is evident upon a consideration of these communications as a whole, including those after 6 November 2008, on a continuing basis, that the OMS employment practice was what the MUA demanded. Any breach of it resulted in threatening communications from MUA officials. OMS generally complied with the demands attended by the threats. This it seems, regrettably, was the price it felt it had to pay to run its business. This is not to say that the MUA actually saw the MUA Membership Memo sent by Quirk. However, I find that its contents, in substance, were generated as a result of and in order to record the closed shop demanded of OMS by the MUA through its paid officials.

53    During December 2008, the Loves moved from Victoria to Perth. From January to December 2009, they sought employment with OMS as cleaners and/or stewards but as they could not obtain membership with the MUA, despite all their efforts to do so, they were never employed by OMS although it actually wanted to employ them and had employment available for them.

54    Mrs Love contacted OMS by telephone on 5 January 2009 and spoke to Ms Wright and said that she and Mr Love were looking for work on an offshore vessel as stewards or cleaners. She explained to Ms Wright both their qualifications and employment history. Ms Wright arranged for the Loves to attend OMS to discuss job opportunities and mentioned to Mrs Love that they would need to join the MUA in order to get a job with OMS.

55    On 5 January 2009, Mrs Love called the MUA and enquired about membership. She was told that she needed a job before she could become a member of the MUA.

56    The Loves then attended a meeting in early January 2009 with Ms Wright at the offices of OMS in Perth to discuss employment as cleaners and/or stewards on offshore vessels that were supplied labour by OMS. Ms Wright told the Loves that in order to secure employment with OMS they would have to undertake several training courses, obtain a “maritime passport”, pass a medical assessment conducted by OMS, as well as join the MUA.

57    Ms Wright gave the Loves a handwritten note on OMS letter head with details concerning positions as cook’s assistant and chief stewards which included the words “MUA (union)”. Ms Wright was in fact talking to them about joining the Union when she wrote the note. I infer that this notation corresponded to what the Loves had been told by her about the requirement that they became MUA members before OMS could employ them. She told them about this, I find, because it was a requirement of the OMS employment practice.

58    During January, the Loves attended the offices of the MUA at Level 2, 2-4 Kwong Alley in North Fremantle to enquire about becoming members of the MUA. The Loves were told that they could not become members because they did not have jobs. Nonetheless, the Loves filled in forms applying for membership with the MUA in the hope that this would speed the process up.

59    Later that month, the Loves registered to complete the Australian Maritime Safety Authority Certificate of Safety Training SCTW95 at the Australasian Maritime Institute of Australia (AMI). Ms Wright also arranged for each of them to undergo medical assessments. The Loves paid for and completed the Elementary First Aid Certificate at AMI. Mrs Love passed her medical assessment in mid January. Mr Love did not pass his medical assessment at that time.

60    On 22 January 2009, Ms Wright sent an email to Mr Love which stated:

Sorry I haven’t been able to get back to you i have a little hectic! Just wanted to let you know I haven’t forgotten you :) I have spoken to the doctor and have both of your medicals. Bruce as you know you were deemed temporarily unfit, this is ok if you have taken the measures recommended by the doctor then we can re submit you for the medical and get you passed and then get you on the vessel ...

Let me know when you feel you have met all the requirements and I will book you back in ... you wont need to do the whole medical again.

Hope you have a good day :)

Thanks

Tami

(Transcribed without amendment)

61    Mr Love passed his medical assessment on 23 January 2009 and the same day advised Ms Wright of this by email and also mentioned that he and Mrs Love had completed their first aid training and were both booked in to complete further training from 4 February 2009 for 7 days.

62    Sometime between 23 and 30 January 2009, Ms Wright sent pre-employment forms to the Loves which included “Employee Letter of Engagement – Temporary Marine Placement” for the position as a “Steward”, “Employee Banking and Superannuation Information” and Tax File Declaration Forms.

63    The Loves completed these forms and on 30 January 2009, returned them to OMS.

64    On 6 February 2009, Cain sent an email to Quirk, Del Rosso, Tracey and Canning with the subject Jascon 25. In that email Cain stated:

Ian/Marten, I have heard from are members on the Jascon and here in Perth. They tell me that Seatrucks are knocking back a lot of are experienced Carne Drivers for this project. If there are Australian Crane Drivers available who are members of the MUA, with Australian Qualifications, and they are available for work then we expect them to get the job. Under no circumstances will we except expat labour. I am prepared to meet on this issue but that is are position. Once you have all the AUSTRALIAN cranedrivers could you send me there names to do a check on there fiaciallity. Regards Christy Cain Also I am hearing that this vessel is 5 to 6 weeks from sail down and we reserve the right to inspect this vessel again if need be regards.

(Transcribed without amendment]

65    Although concerning non-Australian crane drivers employed by OMS this email is yet another example of Cain demanding that OMS employ only MUA members. The expression “check on their fiaciallity [sic]” I infer to be referring to the employees being “financial” or “paid up” members of the MUA.

66    Between 6 and 12 February 2009, the Loves paid for and completed all necessary training courses to obtain employment with OMS. This included fire prevention and fire fighting training, personal safety and social responsibility training and personal survival techniques training. After completing each course the Loves would telephone Ms Wright and update her on their progress. In these conversations Ms Wright would reply with words to the effect: “Oh, that’s good. We should have something come up soon.”

67    Later in February 2009, the Loves paid for and obtained Maritime Passports from the Australian Maritime Safety Authority.

68    On 25 February 2009, Mrs Love called Ms Wright who said that there was a position coming up but that before she and Mr Love could work offshore they needed to complete the helicopter underwater escape training course (HUET/BOSIET). Ms Wright told Mrs Love that she and her husband would have to go down to the MUA’s offices and tell the MUA that OMS had a position on a vessel for them both and that they needed to become members.

69    Later that day, Ms Wright emailed Mrs Love confirming that she had enrolled them both in the HUET/BOSIET course from 26 to 28 February 2009.

70    Shortly after this, again on the same day, Mrs Love emailed Ms Wright in which she said:

Wondering about joining the Maritime Union, our only chance to do so is today, do we need conformation [sic] that we have employment from OMS to do so?

71    A few hours later, Ms Wright replied by email stating:

OMS will have a position available for you if not on the [vessel] Jascon 25, which is crew changing this weekend ... then we also have the [vessel] Castoro Otto that has 3 regular crew changes a week. Please approach the MUA (union) in regards to your memberships and let them know that you have been offered a position and let me know if you need any more confirmation.

72    So it was that on the 25 February 2009, the Loves attended the MUA offices in North Fremantle. They advised the receptionist that they had been offered jobs with OMS and that they wanted to become members of the MUA as they had been told by OMS that it was a condition of actually getting the jobs with OMS that they become members of the MUA.

73    The receptionist said they would have to speak to a particular person. She arranged this. I am satisfied that this person was Cain. Mrs Love identified him from a photograph of five men of which he was one. The MUA submit that, on the balance of probabilities, her evidence is unlikely to be reliable because she had only seen him once for about five minutes some three years prior to her photo identification. I accept Mrs Love’s evidence. She was quite clear in her recollection that it was him. Cain could have given evidence to say that it was not he who spoke to them. He was not called nor was any explanation proffered to the effect that he was unable, for any reason, to attend. In addition to my reasons for accepting Mrs Love’s evidence, I infer that had he been called as a witness his evidence would not have assisted the MUA on this issue. Both Quirk and Del Rosso also identified this same photograph as depicting Cain, whom they both had met.

74    The substance of the conversation which ensued according to Mr Love’s written evidence was as follows: Cain asked the Loves, “What are you doing here?” Mr Love replied, “Well, we’ve come to join the union. OMS have offered us a position”. Cain said, “Oh have they now? Who sent you?” Mr Love replied, “Tami Wright from OMS”. Cain responded, “Oh did she? Wait a minute, we’ll see about that”. The MUA submits that the assertion by Mr Love that Cain said “We’ll see about that” is reconstruction.

75    As the MUA point out, Mr Love did not tell the FWO, in the course of its investigation, during his interview by Mr Smith, one of its Inspectors in June 2010, that Cain had spoken these words. In fact, Mr Love said to Mr Smith that he could not remember whether Cain came back out of the office. When, under cross-examination as to these inconsistencies, it was put to him that he had reconstructed his affidavit evidence as to this conversation as a result of things he had seen and heard since June 2010, Mr Love did not accept this. He said that since that time the content of what he deposed to in his affidavit had come to his mind as he had thought over the events of 25 February 2009. I believe him as to this and I accept his evidence as to what Cain said. I have come to this conclusion with added confidence because Cain, who could have given evidence as to what he said, was not called as a witness.

76    Cain left the Loves in the reception area and then, according to Mr Love, went into an office where he immediately made a phone call. Mr Love heard Cain say, amongst other things, words to the effect, “How dare you send them here to join”. He described Cain’s voice as very bullish, angry and raised. He also described Cain’s language as being “pretty foul”. According to Mr Love, when Cain returned from making the phone call he said, “Oh, you’ll just have to wait”. Again, the MUA, for the same reasons, submit that this is a reconstruction by Mr Love. Again I accept Mr Love’s evidence.

77    Indeed, I have no hesitation in believing Mr Love’s evidence generally and specifically as to what happened at the MUA’s offices on that day. He gave his evidence carefully and in a measured way.

78    Mrs Love said that Cain went into a nearby office and made a telephone call during which he spoke with a “raised voice” but, unlike Mr Love, she did not hear any of the conversation. There is nothing extraordinary in that. She may have been standing further away from Cain’s office than her husband or have been distracted. After Cain’s call to Ms Wright, according to the written evidence of Mrs Love, Cain said to the Loves words to the effect, “You’ll just have to wait, we’ll call when a position is available. Don’t call us, we’ll call you” and that she had gained the impression that “the door to join the MUA was closed”.

79    The MUA submits that Mrs Love’s affidavit and oral evidence that she heard Cain say these things should not be accepted on the balance of probabilities because, as at 1 June 2010, when interviewed by an Inspector at the FWO, Mrs Love initially recalled that she in fact departed from the MUA office on 25 February 2009 with the impression that the Loves could join the MUA, and that all that was said by the man at the MUA office was that “he would call us”, and that it was not until after she later spoke with Ms Wright that she had formed the view that there would be any difficulty with joining the MUA.

80    The MUA contends that the critical influence in what it characterises as Mrs Love’s later recollection being reconstruction, was the subsequent discussion that she had with Ms Wright. It submits that her evidence that she left the MUA office on 25 February 2009 “feeling shattered” is patently unreliable. It submits that the true position was that, as Mrs Love recalled in her record of interview on 1 June 2010, the Loves were merely told that they would be called “when it was [the Loves’] time to join the union”.

81    The MUA also points up that Mrs Love’s account of what was said to her and Mr Love by Cain is not even corroborated by Mr Love. It submits that Mr Love’s account is closer to Mrs Love’s initial version given in her record of interview (“you’ll just have to wait”), and does not include any reference to “position” or “don’t call us”.

82    The MUA submits further that, even if the Loves had been told by Cain on 25 February 2009 “don’t call us, we’ll call you”, this is in conformity with the requirements for processing membership applications under the registered rules of the MUA (the Rules), and cannot amount to a refusal to grant membership of the MUA to the Loves, as membership of the MUA could not have been conferred on 25 February 2009. This, it submits, is because, according to the Rules, Cain was required to immediately forward the Loves’ completed applications for membership to the National Secretary for his decision. Membership could not be granted until their applications were accepted by the National Secretary and upon the Loves paying membership contributions: r 6(d) of the Rules. Thus, the MUA submits, on 25 February 2009, the Loves could not have been denied that which could not have been conferred.

83    It is of no moment whether Mrs Love thought when she left the MUA offices on 25 February 2009 that they could become members or that it would be difficult to do so. I think it probable that Mrs Love, as she said in evidence, left the MUA offices on that day “feeling shattered”. It was, in truth, a shattering experience. The Loves were in difficult financial circumstances and yet had managed to scrape together sufficient monies to obtain the necessary pre-employment qualifications and undergo particular vocational training. They knew jobs were waiting for them with OMS if only they could get membership of the MUA. I find that they were treated dismissively by Cain. He did not say that their membership applications would be processed or in any way encourage them to think that they might become members. His language and demeanour toward them and his phone call, while they were at the MUA offices, to Ms Wright, were in the opposite direction.

84    The evidence discloses that, as at 25 February 2009, the MUA, through Cain, knew that OMS wanted to employ the Loves but, in accordance with the OMS employment practice, would not do so unless and until each had MUA membership. Cain was not prepared to allow that to happen then or later. As I have already found, MUA officials had advised Del Rosso not to send prospective employees to the MUA office to sign up as members of the MUA as it already had enough members.

85    After the conversation with Cain, the Loves completed their respective MUA membership application forms. I infer that Cain never sent their membership applications to the National Secretary. Had he done so there would, in all probability, have been some written response from the MUA to the Loves. There never was. I am assisted in drawing this inference by the fact that Cain did not give evidence. For these reasons, I reject the submission that, when Cain told the Loves, as in substance I find he did, “don’t call us, we’ll call you”, he was him acting in conformity with the rules of the MUA. Rather, I find he was acting in conformity with the position communicated earlier to Del Rosso, that OMS should not send people to apply for membership as the MUA already had enough members.

86    I infer, from the fact that it was Ms Wright who sent the Loves to the MUA offices on 25 February 2008 and that this is what they told Cain, that it was she whom Cain telephoned. According to Mrs Love, Ms Wright confirmed this to her. Ms Wright had originally not cooperated with the FWO in providing a statement. Only belatedly did she do this. I cannot speculate as to the reasons why this is so. However, there is no doubt that she sent the Loves to the MUA offices to say they had been offered employment and to apply for membership. I have found that Cain rang her while the Loves were still at the MUA offices. I have accepted Mr Love’s evidence as to what he heard. Their employment offer never bore fruit after Cain’s call to Ms Wright either that day or for the rest of 2009. Taken in the context of the OMS employment practice, Cain’s phone call to Ms Wright on 25 February 2009 warrants a finding that the MUA, by Cain, advised, encouraged or incited OMS, through Ms Wright, in accordance with that practice, to not employ the Loves.

87    I make these findings despite the fact that the evidence provided by each of the Loves to the FWO inspectors during examinations in June 2010 is not entirely the same as that given by them in their affidavits or their oral evidence in this proceeding. It is not uncommon for witnesses to express their recollections of past events using different language when doing so at different times and in different circumstances. Nor is it uncommon for people, with the benefit of more time to reflect on past events, to remember additional matters of detail.

88    For example, the circumstances each found themselves in when attending the FWO examinations, being separated from each other and asked questions in a non-curial setting is quite different from being proofed by a solicitor for the preparation of their affidavits for tender in evidence in this Court. When faced with the prospect of making affidavits it may well be that the Loves were more focussed. Sometimes recollections do legitimately improve with more time and reflection. There is nothing sinister or necessarily unreliable in this. I do not regard Mr Love’s evidence on this issue as either weak or unreliable. Even as between themselves, the Loves’ testimony is not always the same in the detail. Again, that is unsurprising in human experience. However, the substance of their evidence is broadly consistent. They wanted very much to become MUA members. They knew, because Ms Wright had told them, that without this they could not get the proffered OMS jobs. They both spoke to Cain. He was dismissive in his attitude in the way he spoke to them. It matters little as to the precise words Cain used, for example, whether he said “We’ll see about that” or “You’ll just have to wait”. He made a phone call from a nearby office. His voice, as Mr Love described it, was “very bullish, angry and raised”. The language Cain used in this phone call was “pretty foul”. I have said that I accept Mr Love’s evidence as to what he heard. Ms Wright confirmed to Mrs Love that Cain was quite angry when he spoke to her way during a phone call from him while they (the Loves) were still with Cain. These matters, viewed in the context of the other facts, as I have found them, demonstrate that Cain was not prepared to countenance the Loves as members of the MUA at that time or afterwards. I find, however, that it is likely that the effect of what he told them was that they would have to wait. This is exactly what they did. They waited, and for the rest of the year, they waited in vain.

89    That this was so was because, as I find, the MUA either failed to consider their applications for membership, or failed to otherwise process them because they had decided not to admit any new members during this period. Del Rosso, as I have found, had been told by MUA officials not to send people to the MUA office in Western Australia to become members as the MUA already had enough members. This, effectively, as Cain knew, meant that the Loves would not be offered employment by OMS.

90    Later in the afternoon on the same day, Quirk emailed Cain with a copy to Del Rosso (Subject: “Non MUA memberships”) and stated, inter alia:

Before this goes any further let me explain what has occurred:

1.    Crewing officers looking for stwds

2.    Stwds contacted initially are existing oms employees.

3.    Stwds on data base contacted for work. Those contacted weren’t avail. Others on list not contactable.

4.    Crewing officer went to resume file.

5.    Some stwds were contacted then the following occurred –

a.    Crewing officer asked are you avail for work?

b.    Crewing officer then asked are you in the union?

c.    Potential stwds said no.

d.    Crewing officer then said sorry we can’t employ you and left it at that.

So I’d say as a result of our calls they have rung you to enquire about a membership. At no time has oms given them a job that I am aware of.

(Transcribed without amendment)

91    Quirk said that he sent this email in an attempt to ask the MUA to back-off and leave OMS alone and to reassure the MUA that OMS were not placing any people on vessels who were non-MUA members, or that, in other words, OMS was complying with the OMS employment practice.

92    Del Rosso, who had been copied in with Quirk’s email of that day to Cain, also sent an email on 25 February 2009 to Cain, Quirk and Bray (Subject: “Non MUA memberships”) and stated:

Again I can vouch for this we know what the score is, but when Marten and I are both out of the office all day the girls follow the protocols as best they can when we are not around.

93    He said that he had sent this, in effect, to support what Quirk had said in his email earlier that day.

94    I find that these emails from Quirk and Del Rosso were a reaction to what had occurred with the Loves that day and why it was that Ms Wright had sent them to the MUA’s offices. I infer this from the content of the two emails, taken together with their evidence as to why these emails were sent, as well as the fact that it was shortly after Cain’s phone call to Ms Wright complaining about her sending the Loves to the MUA offices. These emails also establish that Cain knew, upon his receipt of them, that the Loves had been offered, albeit conditionally, employment on vessels as stewards. They also establish that Cain knew that, as they did not have MUA membership, OMS would not employ the Loves. I infer that, as the MUA was monitoring the people employed by OMS, that Cain also knew as a fact that OMS did not employ the Loves and that in relation to them the closed shop was operating successfully.

95    After leaving the MUA’s offices, the Loves spoke to Ms Wright about what had happened when they went to the MUA office. Ms Wright confirmed that Cain had called her when they were at the MUA offices. She told the Loves that Cain was quite angry that she had offered them employment when there were beached MUA members waiting for work. Mr Love apologised to Ms Wright for the way in which Cain had spoken to her. Ms Wright replied in words to the effect, “Oh that’s the way it is all the time”.

96    The Loves each successfully completed the HUET/BOSIET training course between 26 to 28 February 2009.

97    Mr Love confirmed this in an email dated 1 March 2009 to Ms Wright. He said:

hi Tami. all went well with the huet course, we are now qualified. We went to the union after your email and registered but they told us to hang fire. I can’t believe the union has so much to say, it must be very frustrating for you, i thought these things went out years ago. hope you had a good w/e. will wait for your call cheers the Loves.

(Transcribed without amendment)

The expression “[t]hese things” was, I infer, from the overall text, a reference by Mr Love to a closed shop arrangement: no union membership – no job.

98    In early March 2009, Mrs Love called the MUA on a number of occasions to try and find out how many beached members there were and how long it might be until they could become MUA members and then obtain employment with OMS. About that time she also called Ms Wright on a number of occasions to try and find out when she thought they would be able to secure employment on a vessel. Mrs Love followed this up a few days later in an email to Ms Wright requesting an update on the progress of their application for employment with OMS.

99    However, on 6 March 2009, Ms Wright emailed the Loves informing them that OMS was unable to place them in employment, as current MUA members had priority placement on onboard vessels for which OMS supplied labour. In the email Ms Wright stated:

I’m not sure what is happening at the moment in regards to the union, as we still have union members on the beach and we have to use this crew first. As soon as there is a gap I will get on to it and get both of you in. I’m really sorry that I got you all excited and then I couldn’t place you. I promise you I am working on it.

As I can’t accurately tell you when I could get you a spot, I would agree that you should find a casual position so that it can ease your minds as to getting some money in the bank, again I’m really sorry but I promise you’re at the front of my mind and I will find you something.

100    Mrs Love replied the same day by email stating:

Dear Tami, How wonderful are you! Thanks so much for all your help and for keeping us in mind, very much appreciated. It’s not your fault there are beached union members, and we know you are working on a position for us. ...

101    Quirk emailed Cain on 17 March 2009 (Subject: Shortage of OMS Crane operators) requesting membership approval in accordance with the OMS employment practice:

We currently have 4 non MUA crane ops that ... we would like to have considered at least for Temporary MUA memberships so we can ease the current shortage until we can find more existing MUA crew.

102    Cain replied by email to Quirk the same day advising “We need to meet in the morning to discuss”. I infer that the discussion proposed for the next morning was for the MUA, by Cain, to decide whether, in light of the OMS employment practice and the inter-related MUA membership practice, the MUA would grant temporary MUA membership to four crane operators to enable OMS to employ them.

103    On 23 March 2009, Mrs Love sent an email to Ms Wright which stated:

Hi Tammi, hope your week-end was great! Phoned the MUA last week, and they seemed to think it wouldn’t be long before we can become members.

Have the 2 Vessels gone offshore yet?

Look forward to hearing from you.

104    This hope of MUA membership never crystallised either at any time in 2009 or at all. The MUA, self-evidently, knew this to be the case. I again infer that the MUA, through its monitoring of OMS personnel, knew that the Loves were never employed by OMS and that they knew this to be as a result of the closed shop for reasons I have already stated.

105    During March and April 2009, the Loves started filling out forms for Centrelink payments as they were finding it difficult to obtain alternative employment. They had spent a lot of their own money on training to try and secure work with OMS and were in very difficult financial circumstances.

106    Mrs Love, in late May, completed her Certificate III course in Aged Care through Centrelink.

107    Ms Wright emailed the Loves on 22 June 2009 and stated:

I just wanted to update you and let you know that as soon as we start to pick up and the Union start to look for new members I will let you know.

108    Bray sent a further email to Del Rosso and Quirk and copied in Cain and Tracey on 10 September 2009 stating:

Ian,

No one has contacted Tony Phillips and he is still waiting for a job.

If he doesn’t here anything by tomorrow I will require a list of leave balances from the company to see how much leave every IR you have employed has.

I am sick to death of having to ask where this is at and even more sick to fucken death of the false promises coming from you and Marten.

I am not asking any more, jobs are going to start stopping as of tomorrow if you don’t confirm he has a job.

(Transcribed without amendment)

This email is but an example of the intimidating industrial threats directed by MUA officials at OMS.

109    Ms Wright sent an email to the Loves on 4 December 2009 which stated:

I haven’t forgotten you! I have had a look at the union list and there are 20 stewards on there but you never know over Christmas, we are always hunting!

110    Mr Love, in mid March 2010, took the unusual step of writing to the then Prime Minister Rudd complaining about what had happened to him and his wife in relation to OMS and the MUA. His complaint was referred to the FWO which commenced an investigation.

111    OMS, through its CEO, John Kempe, on 29 March 2012, sent a letter of apology to the Loves for the loss and inconvenience experienced by them as a result of the actions of OMS when they sought employment with OMS, and paid the Loves $4,400.00 in reimbursement for their out-of-pocket expenses.

The OMS employment practice

112    The MUA made a submission that the so-called OMS employment practice was not actually a practice.

113    I reject this submission. Quirk’s MUA Membership Memo of 6 November 2009 is stark evidence to the contrary. The evidence of Quirk, Del Rosso and Ms Wright is to the contrary. That it was not always followed does not mean that it was not a practice. Indeed, it was when, on occasions, the MUA through various of its Western Australian officials perceived that the practice was not being followed, that offensive and bullying communications were made on behalf of the MUA by such as Cain, Bray and others to enforce compliance with the practice. Ms Wright did not give evidence, as suggested by senior counsel for the MUA, that on approximately 50 occasions, after OMS had employed non-MUA personnel, she received calls from MUA officials objecting to this having been done. Her actual evidence was that she sent prospective personnel to the MUA’s offices to apply for membership which would then prompt the often abusive communications from MUA officials to the effect that she should not be offering non-MUA personnel employment and that jobs should only be given to beached MUA members. Such “offers” of employment by her were conditioned upon the personnel becoming MUA members. The Loves are but two examples of this.

114    Del Rosso did say in his affidavit that on numerous occasions OMS had employed non-MUA members and that this had led to what was, at times, “heated” conversations with MUA officials. Del Rosso conceded that non-MUA members were employed, at times, even after 6 November 2008, although not “constantly” as was suggested to him in cross-examination. Part of the reason that this occurred, according to him, was that OMS would not have known about whether they were members or not. I do not place as much weight on his evidence as to the practice as I do upon Ms Wright’s evidence. She was, together with the other Crewing Officers, directly involved in employing personnel. She knew of the OMS employment practice and had access to the MUA beached members list. However, even Del Rosso, in respect to the Loves, sought to appease the MUA about why they had been offered prospective employment subject to becoming MUA members and sent by Ms Wright to the MUA offices to apply for membership. This is evident from his email to Quirk and Cain of 25 February 2009, to which I have referred.

115    Moreover, as Quirk said, the MUA Membership Memo was drafted on instructions from and in consultation with Del Rosso as a way of dealing with difficulties OMS had been experiencing with the MUA, including threatening emails and phone calls. The memo could not, in its opening stanza, have been clearer: “At no point is the Person employed prior to having a [MUA] union membership”. Quirk stated he had put it this way in the memo because he had understood, from the 23 October 2008 Bray email, referred to above, that the MUA would be monitoring OMS’s placement of personnel to ensure that only MUA members were placed on vessels. Quirk’s evidence included that during some of these threatening phone calls from MUA officials he was told, in effect:

Get these people (non-MUA members) off (the boat) [and] “our existing employees won’t work with these people (non-MUA members).

Quirk, too, sought to placate Cain about the Loves being offered prospective employment and being sent to the MUA offices to apply for membership, in his email of 25 February 2009 to Cain referred to above.

116    It seems that the OMS employment practice, as contained in the MUA Membership Memo was, at times, not observed in every respect. For example, Ms Wright never consulted Quirk. Nonetheless, as is evident from the way the Loves were treated, Ms Wright was absolutely clear that, without MUA membership, she could not offer them, unconditionally, employment with OMS. It was not enough that there be no MUA beached members for Ms Wright to make such an offer of employment to the Loves. They had to be members of the MUA and the MUA would not give them membership. It is the case that Ms Wright went to great lengths to prepare the Loves to be qualified for employment in the way that I have described. It is the case that she continued her efforts, over almost the whole of 2009, to place them on a vessel. It is, however, glaringly, also the case that despite the fact that they were medically fit, had passed their first-aid and HUET courses, and that employment opportunities regularly came up that Ms Wright was never able to consummate these efforts by her and by them with actual employment. This was solely because they could not get MUA membership. Ms Wright and Quirk both gave evidence to this effect. I accept their evidence.

No case submission

117    The MUA, as I mentioned, elected not to call evidence, and submits that the application made by the FWO should be dismissed on the ground that the MUA has no case to answer.

118    The MUA puts its submission on the following bases:

(a)    there is an evidentiary hiatus or failure to adduce any evidence as to an essential element in the cause of action. The failure is said to be that the evidence does not support the attribution of the conduct of certain MUA officials to the MUA or that their knowledge was thereby the knowledge of the MUA;

(b)    on a consideration of the evidence adduced by the FWO taken at its highest from the FWO’s point of view, the evidence could not support the causes of action pleaded; or

(c)    although there is some evidence to support the FWO’s claim, it is so weak and unreliable that it should be dismissed without calling upon the MUA.

119    The MUA has advocated a two step approach to its no case submission. First, that I should consider whether on the whole of the evidence, including drawing inferences other than by reference to the principles enunciated in Jones v Dunkel (1959) 101 CLR 298, I would find for the FWO. Second, were I to reject the no case submission such that it is necessary to evaluate some of the evidence, then the MUA make additional submissions as to that evaluative process by reference to particular evidence. Pivotal to this submission is the proposition that the tests to be applied to such an evaluation of the evidence are different. I am not persuaded that, in a case such as the present one, this is correct.

120    In Australian Securities and Investments Commission v Healey (2011) 196 FCR 291 at [535], Middleton J approved the principles concerning a no case submission identified by Kaye J in Oakley v Insurance Manufacturers of Australia Pty Ltd [2008] VSC 68 at [3] as follows:

[3]    In my view the authorities, to which I shall shortly refer, establish the following broad principles which should apply to the application which is before me:

1.    Where a no case submission is made in a trial by jury, the role of the judge is to determine whether, on the view of the evidence most favourable to the party against whom such a submission has been made (“the respondent party”), the jury could (not would) find in favour of the respondent party.

2.    The test which is applicable, where a judge is sitting without a jury, is less stringent. In such a case the judge may uphold a no case submission, notwithstanding that the evidence, on the view most favourable to the respondent party, could support a judgment in favour of the respondent party.

3.    In such a case the judge may perform an assessment of the quality of the evidence which has been called on behalf of the respondent party. In some cases, such an assessment may involve the judge evaluating the credit of witnesses from whom such evidence has been called.

4.    In determining a no case submission, the judge is entitled to draw inferences from the evidence.

5.    On a no case submission, the judge cannot draw an inference against the party making the submission (“the moving party”) based upon the absence of evidence from that party.

6.    Although the judge, sitting alone, may assess the quality of the evidence in determining a no case submission, nonetheless the test which is to be applied by the judge, at that stage, is different to the test which the judge would apply in determining the ultimate outcome of the case, at the conclusion of a trial. Notwithstanding that the judge, in determining the no case submission, may assess the quality of the evidence, nonetheless the test remains whether, on the evidence so assessed, the judge “could” (not would) find for the respondent party on the evidence so far led. In such a case, the judge would only find against the respondent party if the evidence, so far adduced, is so unsatisfactory or inherently unreliable or equivocal that he were to conclude that he could not be reasonably satisfied of the case made by the respondent party on the evidence thus far adduced.

121    Justice Middleton at [536] observed that these propositions were consistent with authority and the Full Court’s decision in Rasomen Pty Ltd v Shell Company of Australia Ltd (1997) 75 FCR 216. This observation seems to have been directed to the question confronting his Honour and which was before the Full Court in Rasomen, whether the moving party in a no case submission ought be put to its election to call no evidence.

122    Jones v Dunkel was adverted to in Rasomen at 226, but in the context of the approach of a trial judge, sitting without a jury, faced with a no case submission. The Full Court adopted what had been said by Windeyer J in Jones v Dunkel at 330-331:

When there is no jury, the proposition ‘no case to answer’ may obviously mean far more than, ‘is there evidence on which a jury could find for the plaintiff?’ It may mean, ‘would you, the judge, on the evidence given, find for the plaintiff?’

123    Nothing was said in Rasomen on the issue of whether inferences could be drawn against the moving party in a no case submission, based in Jones v Dunkel, by reason of their failure to adduce evidence.

124    In Protean (Holdings) Ltd (Receivers and Managers Appointed) v American Home Assurance Co [1985] VR 187, the appellant had argued that the trial judge had wrongly upheld a no case submission in that he had made determinative findings of fact and indeed had finally decided the issues in the case. The Full Court of the Supreme Court of Victoria rejected this ground of appeal. Chief Justice Young said at 214:

The appellant carried the burden of proving those defences and ex hypothesi all the evidence that the appellant could adduce had been given.

This passage was referred to with apparent approval in Rasomen at 227.

125    Ultimately, the Full Court in Rasomen concluded at 228:

In a case like this, the function to be performed by a trial judge sitting without a jury who has decided to entertain a no case submission is no different from that which has to be performed by a judge who has heard all the evidence of the parties in the ordinary way and who has to give final judgment. In both situations, the judge must make findings of fact, after assessing the quality of the evidence.

126    This is an echo of what was said by Toohey J in James v Australia and New Zealand Banking Group Ltd (1986) 64 ALR 347 at 400:

If a defendant elects not to call evidence, the judge has before him all the evidence upon which he is called to make a decision. Any distinction between the role of the judge in ruling on a no case submission and the role of the judge as an arbiter of fact becomes largely illusory.

127    The effect of the observations in Rasomen, in my opinion, is that in a case such as this case, involving a no case submission based on the evidence, there is no two step process and no different evaluative test to be applied. I do not think the position to be any different where the moving party has elected not to call evidence. If that be correct then Jones v Dunkel inferences will, it seems, be available to the trial judge.

128    Thus, Sackville J in Prentice v Cummins (No 5) (2002) 124 FCR 67, as here, having considered relevant authority including Rasomen, said at [114]:

[114]    … As a matter of principle, it is difficult to understand why, in such a case, once the respondents have made the election not to call evidence, the material to be taken into account should not include any inferences that may be available on the principle of Jones v Dunkel (1959) 101 CLR 298, by reason of their failure to call evidence. The respondents, by their election, have chosen to adduce no evidence in support of their case. The position is different from that which obtains where the respondents have reserved the right to call evidence if the no case submission is rejected. In such circumstances, it would be inappropriate to draw adverse inferences against the respondents for not doing something they have not yet been called on to do.

His Honour had resort to the principle in Jones v Dunkel in support of inferences he drew.

129    Justice Greenwood in McIlwain v Ramsey Food Packaging Pty Ltd (2006) 154 IR 111 expressed his apparent agreement with what Sackville J said in Prentice as to the availability of Jones v Dunkel inferences on a no case submission. As it transpired in McIlwain it was unnecessary for his Honour to apply those principles by reason of a combination of other evidence and a statutory presumption operating against the respondent.

130    I too, respectfully, agree with the reasoning of Sackville J in Prentice and will apply it, to the extent necessary, in this case upon an evaluation of the whole of the evidence on the basis, as Toohey J said in James, that in substance I am in the position of an arbiter of fact on those issues at the conclusion of the trial.

131    I have earlier set out my findings of fact, including by reference to inference, unless specifically stated, but without resort to the principle in Jones v Dunkel. However, were I to have resort to Jones v Dunkel this would underpin the findings of fact I have made, particularly inferences of fact I have drawn, given that the MUA did not call any of Cain, Bray, Tracey or Canning. There was no explanation for their absence as material witnesses.

132    As I mentioned, the MUA’s primary challenge focuses on the role and capacity of those alleged to be MUA officers and whether their conduct and knowledge can be attributed to the MUA.

133    If this defence fails then the MUA submits that, in any event, the evidence adduced by the FWO does not otherwise establish its allegations. I will now consider the first part of these challenges. My findings of fact are such that the second part of this challenge fails.

Attribution of individuals’ conduct to the MUA (paras 41, 42, 43 and 43A of the Amended Statement of Claim)

134    The FWO alleges that the MUA is liable for the conduct of Cain, Bray and Rayward by the operation of s 826(2) of the WR Act and s 793(1) of the FW Act, or alternatively, vicariously at common law.

Section 826(2) of the WR Act and s 793(1) of the FW Act

135    I agree that the reference in [42](b) of the Amended Statement of Claim (ASOC) to these provisions must be taken to be to para (a) of each provision, as in each case para (b) is plainly irrelevant. Accordingly, it is the application of s 826(2)(a) of the WR Act and s 793(1)(a) of the FW Act which is material. This depends on proof that Cain and Bray were officers, employees or agents of the MUA whose relevant conduct was engaged in “on behalf of” the MUA and was “within the scope of his … actual or apparent authority”. I have not found it necessary in this case to consider the position and authority of an MUA official called Rayward.

136    The MUA conceded that the evidence establishes that Cain and Bray were each officers of the MUA.

137    As to the second requirement, the FWO pleads in [41](a) of the ASOC that the conduct of Cain and Bray was engaged on behalf of the MUA. The MUA accepts that, at the level of a “no case” submission, there is sufficient evidence to satisfy this requirement in relation to Cain and Bray.

138    As to the third requirement, the MUA submits that the evidence does not establish that the conduct of Cain and Bray was engaged in within the scope of their actual or apparent authority.

139    I will deal with these submissions in a composite way.

140    I have no difficulty in finding that the conduct of each of Cain and Bray was conduct engaged in on behalf of the MUA. The facts as I have found them support this conclusion. The communications from them are all directed to the affairs of the MUA in its dealings with OMS and the Loves in the context of maintaining the MUA’s closed shop as I have described it.

141    I find that Cain’s conduct in his dealings with OMS and the Loves was within the scope of his actual authority. He represented the MUA in its dealings with OMS as an employer and the Loves as applicants for membership of the MUA. It does not matter that the final decision as to whether they would be accepted as members was within the sole province of the National Secretary of the MUA under the Rules. The underlying vice was that the Loves had to be members of the MUA before obtaining employment with OMS. This “closed shop” was unlawful. The refusal or failure to grant membership, whilst significant, was incidental to this.

142    Under r 6(c) of the Rules, applications for membership were to be made to the Branch Secretary. In Western Australia this was Cain. The position of Branch Secretary is an identified “office” of the MUA under r 31 of the Rules.

143    Under r 38 of the Rules, Cain, as Branch Secretary, was designated as the Senior Executive Officer of the (WA) Branch and his duties included a requirement that he receive and conduct all correspondence of the (WA) Branch as well as, amongst other things, to visit or cause other Branch Officers to visit the shipping office, vessels in port and to look after the business and affairs of the (WA) Branch generally. This express authority is in the widest of terms and constituted actual authority to represent and bind the MUA in its industrial relations dealings with OMS and the Loves in the circumstances which pertained in this case.

144    Ian Bray, the Assistant Branch Secretary of the MUA in Western Australia, was, under r 40(a) of the Rules, subject to the supervision and direction of the Branch Secretary. In this way he too was invested with actual authority through Cain. I infer, as most probable, that in the ordinary course of the affairs of the MUA, conduct of Bray, as I have found it, established by the evidence, was both subject to the supervision and direction of Cain. He too acted within the scope of his actual authority.

145    William Tracey and Michael Canning were “organisers” of the MUA in its Western Australia Branch. Rule 31(e) of the Rules provides for the remuneration of all MUA officers. I infer, therefore, that they were also employees of the MUA and also, like Bray, subject, in the course of their duties, to the supervision and direction of Cain.

146    I also find, if necessary, that each of Cain, Bray, Tracey and Canning, acted within the scope, respectively, of their apparent authority.

147    Each was an officer of the MUA. Their respective conduct was, on its face, concerning the affairs of the MUA. Much of what each did and said was known to the others and in particular as between Cain and Bray. Correspondence from each of them was on MUA letterhead or via MUA designated email addresses. The meeting with the Loves on 25 February 2009 took place at the MUA’s offices in Fremantle. These MUA officials were known in those capacities to OMS Executives and Ms Wright. No one at OMS ever questioned the right of any of those MUA officers to speak for the MUA. Neither Cain nor Bray ever said to anyone at OMS that any of these officials had no authority.

Vicarious liability at common law

148    Section  793(1) of the FW Act has not excluded the operation of the doctrine of vicarious liability at common law. Such was the conclusion of the Full Court when considering the analogous provisions of s 349 of the WR Act in Hanley v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (2000) 100 FCR 530 at [59]. However, actual authority must be proved: Hanley at [75]-[76]. I have found that each of Cain, Bray, Tracey and Canning had actual authority. It follows that the MUA is vicariously liable for their conduct as alleged. However, given my conclusions referable to s 826(2)(a) of the WR Act and s 793(1)(a) of the FW Act, it is unnecessary to place reliance on the common law.

Attribution of Cain’s conduct to the MUA (para 43A (a)(i) and (c)(i) of the Amended Statement of Claim)

149    The MUA makes an additional submission in relation to [43A](a)(i) and [43A](c)(i) of the ASOC. It submits that in so far as the allegation is that the alleged conduct in not granting and/or refusing membership of the MUA to the Loves is alleged to be conduct of Cain initiated by him on 25 February 2009 and continued by him thereafter, that even were the Court satisfied that Cain engaged in the alleged conduct the evidence excludes authority for him to do so. In connection with [43A], senior counsel for the FWO stated that “the essential decision-maker is Mr Cain”. It contends this to be so because only the National Secretary of the MUA was authorised to accept or to not accept applications to join the MUA, and to thereby grant, not grant or refuse membership of the MUA: see rr 6(d) and 7(d) of the Rules.

150    Accordingly, it submits that this part of the FWO’s case must fail.

151    I do not accept this submission. My reasons for this require to be read with the findings of fact I have set out above. I infer that the National Secretary of the MUA knew of the closed shop operating in Western Australia. It is almost inconceivable that he would not have known. These were not insignificant matters with which Cain and others were dealing. They were at the heart of the activities of the MUA in Western Australia in protecting the interests of its members. I find that part of the closed shop was that no new membership applications were even considered whilst there were members of the MUA, sometimes described as “beached members” who were available for work on offshore vessels but were unemployed. The documentary evidence supports a finding that there were beached members of the MUA at the time the Loves were seeking membership. The conduct of Cain, in particular, at the time of the 25 February 2009 meeting he had with the Loves, in telephoning Ms Wright and the content of that call demonstrates that as far as he, and therefore the MUA, were concerned he, and it, were not open to receiving applications for membership. This is consistent with what Del Rosso had been told by MUA officials, that OMS should not send down prospective employees to the MUA offices to sign up as members as the MUA already had enough members. Moreover, the Loves were never granted membership. Cain knew that they would not get employment with OMS unless they were members. He made it perfectly plain that they were not to get employment while there were beached members. The corollary of this is that they would not be given membership. Cain did not speak to the National Secretary before calling Ms Wright. He clearly had authority, in a practical sense, to reject their application for membership. It is no answer to say that only the National Secretary had authority to do this. In any event, it is highly improbable that the closed shop was Cain’s idea. I infer that at least it was known of and approved of by the MUA’s governing body, the National Council. I also infer that it was also known that no new membership applications from WA would be processed while there were beached members. That the Loves were never granted membership from as early as mid-January 2009, when they first applied, and then from 25 February 2009 when they re-applied, for the entire balance of that year, is consistent with this.

The MUA’s accessorial liability

152    The FWO’s case is that the MUA is accessorily liable for the contraventions by OMS of s 792(1)(d) of the WR Act and/or s 346(a) of the FW Act pleaded at [42] of the ASOC because it was involved in OMS’s refusal to employ the Loves, within the meaning of s 728(2)(a) and (c) of the WR Act and s 550(2)(a) and (c) of the FW Act. There is no material textual difference as between these provisions.

153    Pursuant to these respective ancillary liability provisions, a person who is involved in a contravention of a civil remedy provision is taken to have contravened that provision. They provide that a person is involved in a contravention if, and only if, the person:

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

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

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

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

154    As to s 550(2)(c) of the FW Act and s 728(2)(c) of the WR Act, the MUA is accused only of being knowingly concerned in OMS’s contravention, not of being a party to that contravention. These provisions require that the MUA, through its officers, employees or agents, had knowledge of all of the essential matters that went to make up OMS’s contravention of the WR Act and FW Act. In this context, “knowledge” means actual, and not constructive, knowledge.

155    The MUA submits that the FWO has not proved that the MUA has the requisite state of mind.

156    As to the MUA’s state of mind, the statutory presumption contained in s 361 of the FW Act does not apply to the allegation of accessorial liability pleaded in [42] of the ASOC. This presumption applies only where an application alleges that a person took action for a particular reason or with a particular intent in contravention of Pt 3-1 of the FW Act: s 361(1)(a). The ASOC alleges direct liability only in [43A].

157    It is correct that the MUA has no mind of its own. There is no suggestion that there is any person whose mind is that of the MUA, in the sense described in Hamilton v Whitehead (1988) 166 CLR 121 at 127. Accordingly, it must be an individual’s knowledge which is attributed to the MUA. In the way the case was run it is apparent that the particular individuals whose knowledge might be attributed to the MUA are Cain and Bray. The only available basis of attribution is s 826(1) of the WR Act and s 793(2) of the FW Act which are substantially to the same effect. The MUA points out that these provisions were not pleaded. Accordingly, the MUA submits that as there is no pleaded basis of attribution, the FWO’s case must therefore fail at that point. This is an arid submission. The case in this respect was run by reference to the knowledge, particularly of Cain and Bray, as disclosed by the documentary evidence including documents emanating from each of them. The MUA contends that even if the FWO were to be allowed to rely on s 826(1) of the WR Act or s 793(2) of the FW Act, it would fail on the evidence, because, for the reasons given above, neither Cain nor Bray have the requisite authority. This submission also fails. I have already found that each was an officer and employee and each had the requisite authority.

158    The MUA then submits, in the alternative, and assuming, as has occurred, the rejection of these submissions, that it becomes necessary to consider what knowledge on the part of Bray and Cain has been proved, and then to consider whether it meets the test identified above. The necessary starting point of the latter task is to identify OMS’s contravention. As the MUA observes, the contravention is not OMS’s implementation generally of the so-called “OMS employment practice”, but its refusal to employ the Loves because they were not members of the MUA. The MUA submit that there is no proof that any of Cain or Bray had actual knowledge of the following essential elements of OMS’s contraventions:

(a)    between 25 February 2009 and December 2009 OMS took adverse action against each of the Loves in that it refused to employ each of the Loves “as employees” (the first element); and

(b)    OMS took the adverse action referred to in (a) because each of the Loves were not members of the MUA (the second element).

159    The MUA submits that the first element consists of an alleged refusal to employ each of the Loves as employees in any position or capacity whatsoever and that there is no proof that either of Bray or Cain had actual knowledge that OMS had relevantly refused to employ each of the Loves as employees in any position or capacity allegedly covered by the so-called “OMS employment practice” or in any other position or capacity, seagoing or otherwise. This is a somewhat pedantic pleading point in part. It is quite clear that the case was run on the basis that the Loves were seeking employment as cleaners/stewards on seagoing vessels and that despite an offer of such employment it could not be taken up as they were not members of the MUA. There was never any suggestion of any other role they were seeking or had been offered.

160    In any event, the MUA submits that there is no proof that the MUA had any knowledge of the so-called “OMS employment practice”.

161    The MUA submits that even if knowledge of OMS’s refusal to employ the Loves “as employees” is provable, the FWO’s case fails on the second element. It contends that there is no proof that either of Cain or Bray had actual knowledge that the Loves’ status as non-members of the MUA was OMS’s “particular reason” for such a refusal, or a “substantial and operative factor” as to constitute a “reason” for such a refusal, or the reasoning actually employed by OMS: Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 290 ALR 647 at [42], [127] and [146].

162    I reject this submission. Their respective knowledge requires to be considered against their knowledge that there was a closed shop arrangement agreed between the OMS and the MUA. The facts as I have found them embrace conduct and communications both before and after 25 February 2009 and is overwhelming that such an arrangement to the knowledge of Cain and Bray was in place and that it was applied by both OMS and the MUA in relation to the Loves. It is not a matter of looking solely at the events of 25 February 2009. The facts which support the relevant knowledge are set out above. The abusive and intimidating correspondence from and direct personal confrontations by each of these MUA officials across the periods established by the evidence were not merely directed to the creation of such a closed shop. Mainly, they were directed to the occasions when, as they perceived it, OMS was in breach of the closed shop arrangement already in place. The Loves were not MUA members. OMS wanted to employ the Loves and Ms Wright had offered them employment subject to their attaining MUA membership. The combined conduct of these officials, particularly that of Cain on 25 February 2009 in the context of the evidence as a whole is sufficient to ground a finding of actual knowledge on their part that the Loves were not then or later employed by OMS as ship stewards or in any position on an offshore vessel and that this was because they were not members of the MUA. That, after all, was the nature of the employment they were seeking and they had been told, consistently with the OMS employment practice, that they would not be employed unless they had MUA membership. Cain and Bray knew from the content of the emails sent to them by each of Quirk and Del Rosso on 25 February 2009, after the Loves had attended at the MUA’s offices, that the Loves would not be employed by OMS and this because they did not have MUA membership which they also knew to be the case. There is no evidence of complaint by the MUA after February 2009 and for the rest of that year that the Loves had been employed. The MUA had an intimate knowledge of who was employed by OMS on its vessels because it monitored the OMS personnel to check whether or not they were MUA members. That is why it was able from time to time to complain to OMS about its employment of non-MUA members. Cain knew from this, I infer, that the Loves were never employed by OMS. Cain knew that membership had not been granted to them. Mrs Love had phoned the MUA’s Fremantle offices throughout 2009 to check on their membership applications. They were never granted membership.

163    I find, therefore, that the FWO has proved that the MUA had the relevant state of mind required by the respective provisions for the purposes of its claims of accessorial liability against the MUA. This attributed knowledge was the consequence of the knowledge of Cain and Bray each of whom were officers and employees.

Conclusions

164    As I mentioned at the outset, declarations of contravention were made against OMS: Fair Work Ombudsman v Offshore Marine Services. Prior to 1 July 2009, OMS refused to employ the Loves because of, or for reasons including, a prohibited reason within the meaning of s 793(1)(b) of the WR Act. Accordingly, OMS contravened s 792(1)(d) of the WR Act. After 30 June 2009, the refusal to employ the Loves was adverse action within the meaning of s 342 of the FW Act, and that adverse action was taken because neither Mr nor Mrs Love was “an officer or member of an industrial association”, namely, the MUA, whereby OMS contravened s 346(a) of the FW Act.

165    I am satisfied, for the above reasons, that the MUA was involved in the contraventions by OMS of s 346(a) of the FW Act and s 792(1)(d) of the WR Act. It follows, by virtue of s 728 of the WR Act and s 550 of the FW Act, that the MUA is taken to have committed the same contraventions. There will be declarations to that effect.

166    I set out below the particular findings of fact upon which I have relied for these conclusions. These are derived, broadly, from the findings of fact I have set out above and which require to be read as a whole. Nonetheless, I have identified the particular paragraphs of these reasons where those findings, variously, are found.

1.    At the time the Loves first applied for employment with OMS in January 2009 and for the balance of the year there existed within OMS an employment practice by which membership of the MUA was a prerequisite for employment with OMS: [23]-[25], [35]-[43], [50]-[51], [54], [56]-[57], [68], [70]-[72] [74], [88]-[89], [91], [94], [99], [101], [102], [107], [109], [112]-[116] and [162].

2.    OMS wanted to employ the Loves if they could obtain MUA membership: [53], [57], [62]-[63], [66], [68], [70]-[71], [83]-[84], [86], [116] and [162].

3.    The MUA refused to grant the Loves membership with the MUA, as the MUA had a practice of granting new memberships to persons offered employment with OMS only when there were no “beached” MUA members available to be placed on the vessels. I find that this practice was engaged in by the MUA to ensure that MUA members received preference in employment with OMS: [24]-[25], [30]-[31], [33], [35]-[36], [39], [48]-[49], [64]-[65], [78], [84]-[85], [88]-[89], [94]-[95], [98]-[99], [107]-[108], [116] and [151].

4.    OMS, as a consequence of the MUA refusing to grant the Loves membership, and in accordance with the OMS employment practice, did not employ the Loves: [86]-[89], [90]-[92], [94], [99], [104] and [116].

167    The MUA had actual knowledge of the OMS employment practice, including as it was applied by OMS to the Loves and was therefore involved in OMS’s contraventions of s 346(a) of the WR Act and s 792(1)(d) of the WR Act, pursuant to s 550 of the FW Act and s 728 of the WR Act, based on the following findings:

1.    on 25 February 2009, the Loves attended to the MUA offices, and completed and submitted MUA membership application forms and advised of their prospective employment with OMS: [72]-[74] and [85];

2.    the MUA official, Cain, prevented the Loves becoming members of the MUA and admonished OMS for sending the Loves to the MUA, therefore, refusing to grant the Loves MUA membership: [74]-[79], [84]-[89] and [116];

3.    on and from 25 February 2009, and continuing to at least December 2009, the Loves did not and/or could not obtain membership with the MUA: [88]-[89], [104], [116] and [151];

4.    the MUA advised, encouraged or incited OMS to establish and maintain the OMS employment practice, which included threating to take industrial action against OMS with the intent to coerce OMS to maintain the OMS employment practice: [26]-[28], [29]-[36], [39]-[49], [52], [64]-[65], [84], [86]-[88], [108], [113]-[115], [151] and [162];

5.    the MUA advised, encouraged or incited OMS, in accordance with the OMS employment practice, not to employ the Loves: [74]-[88], [90]-[91], [94]-[95] and [114]-[115].

Alternative direct liability claim against the MUA

168    The findings of fact relevant to these alternative claims are again identified below by the paragraph numbers in these reasons where those findings variously are made. I find that after 1 July 2009, in direct contravention of s 346(a) of the FW Act, the MUA took adverse action against the Loves because the Loves were not members of the MUA, such “adverse action” being the prejudicing of the Loves in “prospective employment” by:

1.    not granting the Loves MUA membership so that they would be able to obtain employment with OMS: [74]-[79], [84]-[89], [94], [104], [116] and [151]; and

2.    advising, encouraging or inciting OMS not to employ the Loves (s 342, item 7(b) of the FW Act): [74]-[88], [90]-[91], [94]-[95] and [114]-[115].

169    I find that prior to 1 July 2009, in direct contravention of s 796(5)(a) of the WR Act, the MUA advised, encouraged or incited OMS to maintain and apply the OMS employment practice with respect to the Loves, so as to cause OMS not to employ the Loves as they were not members of the MUA (s 792(1)(d) and 793(1)(b) of the WR Act): [74]-[78], [86]-[88], [90]-[91], [94], [104] and [114]-[115]. The evidence however, does not warrant a finding, which the FWO sought, that the MUA contravened s 796(5)(b) of the WR Act.

170    I find that prior to 1 July 2009, in contravention of s 797(3)(a) of the WR Act, the MUA took action that had the effect of directly prejudicing the Loves in their “prospective employment” by:

1.    refusing the Loves MUA membership: [74]-[79], [84]-[89], [94], [104], [116] and [151]; and

2.    advising, encouraging or inciting OMS to not employ the Loves (s 797(3)(e) of the WR Act): [74]-[78], [86]-[88], [90]-[91], [94]-[95] and [114]-[115].

171    I find that prior to 1 July 2009, in contravention of s 797(3)(b) of the WR Act, the MUA advised, encouraged or incited OMS to take action which had the effect of directly prejudicing the Loves in terms of their prospective employment, namely, to not employ the Loves because they were not members of the MUA (s 797(3)(e) of the WR Act): [74]-[78], [86]-[88], [94]-[95] and [114]-[115].

172    The matter of the penalties sought will be the subject of a separate hearing.

173    I will direct that the parties bring in a minute of proposed declarations and orders within 14 days to reflect the findings in these reasons. Absent agreement, the parties will have liberty to apply as to these.

Associate:

Dated:    18 September 2013