FEDERAL COURT OF AUSTRALIA

Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union (No 2) [2015] FCA 199

REASONS FOR JUDGMENT

BACKGROUND

1    The Director of the Fair Work Building Industry Inspectorate is appointed pursuant to s 15(1) of the Fair Work (Building Industry) Act 2012 (Cth) (FWBI Act), and by reason of ss 59A and 59C of the FWBI Act, he is a Fair Work Building Inspector, and has the powers and functions of such an inspector in relation to “building matters” within the meaning of that term in s 59C(3). In addition, he has the authority to bring these proceedings under s 539 of the Fair Work Act 2009 (Cth) (FW Act).

2    The Construction, Forestry, Mining and Energy Union (CFMEU) is an organisation of employees registered under the Fair Work (Registered Organisations) Act 2009 (Cth), and by reason of s 27 of that Act is a body corporate capable of being sued in a proceeding such as this in its registered name. It is also an “industrial association” within the meaning of that term in s 12 of the FW Act and a “building association” and a “building industry participant” within the meaning of s 4(1) of the FWBI Act.

3    Kane Pearson is and was at material times an employee of, and the Assistant Secretary of, the CFMEU’s Construction and General Division, Queensland Builders Labourers Federation Divisional Branch. In that capacity, he is an officer of the CFMEU for the purposes of ss 363 and 793 of the FW Act. His conduct is the subject of this proceeding and is acknowledged to be conduct in his capacity, and within the scope of his authority, as an employee and/or officer of the CFMEU. He is also a permit holder within the meaning of that term in s 12 of the FW Act.

4    Adam Olsen is also an employee of the CFMEU’s Queensland Branch, and an organiser of that Branch. For that reason, he is also an officer of the CFMEU for the purposes of ss 363 and 793 of the FW Act. As in the case of Pearson, it is accepted that his actions, the subject of this proceeding, were in his capacity, and within the scope of his authority, as an employee and/or officer of the CFMEU. He too is a permit holder within the meaning of that term in s 12 of the FW Act.

5    It is convenient at this point to note the names and roles of the other employees of the CFMEU involved in the actions or conduct in issue. Michael Ravbar is the Divisional Branch Secretary and Laurie Genrich, Kevin Griffin and John Schieber are each employees of the CFMEU, and all are attached or employed in the Queensland Division. Another person whose name is not disclosed on the evidence, but who raised the “serious safety issues” referred to below with Emanuel Milatos on 17 June 2013 was also an employee of the CFMEU. It is accepted that each of those persons, to the extent that they engaged in conduct relevant to this proceeding, were acting in their capacity as such employees, and within their authority as employees of the CFMEU. In this judgment, after referring to a person by name, I will use the surname only. As Emanuel Milatos has of course the same surname as his father, I will add the initial of the first name so it is clear.

6    Reday Pty Ltd (Reday) was the builder and developer of a planned 12 storey 52 two bedroom apartment complex known as “Central Apartments” (the Project) at 108 Mitchell Street, Darwin (the Site). It was therefore a “building industry participant” within the meaning of s 4(1) of the FWBI Act. The Reday employees performing work on the project at the Site, with the exception of the Site Manager, E Milatos, were eligible to be, but were not, members of the CFMEU.

7    The relevant events occurred in the two week period commencing on 17 June 2013 at the Site.

8    The evidence indicates that a conference of organisers of the CFMEU, Queensland Division (including employees from Cairns, Townsville and Brisbane) was to take place in Darwin during the period of those two weeks, more particularly in the first week. Mick Huddy was the organiser employed by the CFMEU in Darwin. Although it is not clear whether there were any other direct CFMEU employees in Darwin, it appears on the evidence that he was the only CFMEU employee in Darwin, or at least the only one involved in any way in the relevant events.

RIGHTS OF ENTRY

9    Part 3-4 of the FW Act confers rights on union officials to enter premises and undertake other actions whilst on those premises. The extent of the powers conferred on officials whilst on premises depends on the purpose for which the rights are being exercised. In short, the purpose may be one or the other of the following:

(a)    to investigate suspected contraventions of the FW Act or an industrial instrument, under Pt 3-4, Div 2, Subdiv A of the FW Act; or

(b)    to hold discussions with employees who are members, or who are eligible to be members, of the CFMEU, under Pt 3-4, Div 2, Subdiv B of the FW Act.

10    Not surprisingly, with regard to the different purposes referred to, the powers conferred by Subdiv A are broader and more intrusive than those under Subdiv B. The scheme under Subdiv A is contingent upon the permit holder having a reasonable suspicion of a contravention (s 481 of the FW Act). It is not intended to allow a permit holder to enter premises simply to look for a possible contravention of the FW Act or of an industrial instrument, or as sometimes described to embark upon a “fishing expedition”. The burden of proving the reasonable suspicion lies on the permit holder, and the powers exercised whilst on the premises must relate to the suspected contravention. Those powers include powers to inspect any work, process or object relevant to the suspected contravention; to interview any person about the suspected contravention (with limits as to who may be interviewed); and to require an occupier or affected employer to allow the permit holder to inspect and make copies of documents.

11    The power of entry under Subdiv B is limited to entry onto premises for the purpose of holding discussions with employees. The discussions which it permits to be held must be held at meal times or at other break periods of the employees on the premises.

12    Part 3-4, Div 3 of the FW Act deals with State or Territory occupational health and safety (OHS) entry rights. It does not itself confer power upon union officials to exercise rights conferred by State and Territory OHS laws, but prescribes the circumstances in which such rights may be exercised.

13    Section 494(1) of the FW Act allows a permit holder to exercise a State or Territory OHS right. In such a circumstance, the permit holder must not exercise the State or Territory OHS right to inspect or otherwise access an employee record of an employee unless the permit holder has given the occupier of the premises and any affected employer a written notice setting out his or her intention to exercise the State or Territory OHS right, reasons for doing so, and at least 24 hours before exercising the right. There is no dispute that Reday was the occupier of the Site and an affected employer, as those terms are used in Pt 3-4 Div 3 of the FW Act. When exercising (relevantly) the Northern Territory OHS rights, s 496 requires the permit holder not to contravene a condition imposed on his or her entry permit. Section 497 requires the permit holder to produce his or her entry permit for inspection when requested to do so by the occupier or affected employer. Section 498 provides that the permit holder may only exercise a State or Territory OHS right during working hours. Section 499 requires the permit holder to comply with any reasonable request by the occupier of the premises to comply with an occupational health and safety requirement that applies to the premises.

14    As is apparent, the rights or powers which may be exercised by a permit holder under the FW Act when exercising a State or Territory OHS right are not extended by any provisions in the FW Act. The rights and powers are limited to those conferred by the relevant State or Territory OHS legislation. Relevantly to this proceeding, those rights and powers are contained in Pt 7 of the Work Health and Safety (National Uniform Legislation) Act 2011 (NT) (WHS Act).

15    Under the WHS Act, a permit holder must reasonably suspect before entering the workplace that a contravention has occurred or is occurring, and may then enter the premises for the purposes of enquiring into the suspected contravention that affects a relevant worker. The work health and safety (WHS) entry permit holder may inspect any work system, consult with relevant workers in relation to the suspected contravention, and inspect and make copies of documents.

16    The Work Health and Safety (National Uniform Legislation) Regulations 2011 (NT) (WHS Regs) prescribe the requirements for a WHS entry permit. It is not necessary to refer in detail to those requirements at this point.

17    On the evidence, the only person with an entry permit and who was in a position to exercise the Northern Territory OHS rights was Genrich.

18    Notice of entry and of the suspected contravention must be given in accordance with the WHS Regs. The notice must be given in writing, containing the full name of the WHS entry permit holder, the name of the union that the WHS entry permit holder represents, the section of the Act under which the WHS entry permit holder is entering or proposing to enter the premises, the name and address of the workplace entered or to be entered, and the date of entry or proposed entry: reg 27. In addition, reg 28 of the WHS Regs requires some additional steps. So far as is practicable, the particulars of the suspected contravention to which the notice of entry relates should be given, together with a declaration stating that the relevant union is entitled to represent the industrial interests of a worker who carries out work at the workplace entered and is a member, or eligible to be a member, of that union; the provision in the unions rules that entitles the union to represent the industrial interests of that worker; and that the suspected contravention relates to, or affects, that worker.

19    As in the case of an entry permit under the FW Act, a notice of entry under the NT regime may also be given for the alternative purpose prescribed under s 121 of the WHS Act. That is the purpose of being able to consult and advise workers. The notice of entry then must, under ss 121 and 122, propose notice of entry during normal working hours and at least 24 hours before entry, and make the statements that the union is entitled to represent the industrial interests of a worker who carries out work at the premises, and is a member of that union and identifies the provision in the union’s rules that enables or entitles the union to represent the industrial interests of that worker.

20    The notices of entry given under the FW Act in this matter were given to Reday and said they were given for the purposes of holding discussions under s 484 of the FW Act.

THE UNCONTENTIOUS EVENTS

21    In preparation for the conference of organisers, I find that Huddy prepared for a number of the members of the CFMEU, Queensland Division, notices of entry and arranged for each of them to be executed by each of the authorised entry persons. I also find that Huddy prepared a list of the building sites then operating in Darwin, intending that at least part of the conference of organisers would be for those intending to attend building sites in Darwin in small groups to experience and learn from the work of others. In my view, on the whole of the evidence, it was Huddy who in the first place selected who of those attending was to visit which of the building sites pursuant to their rights of entry, as the evidence indicates that no-one else from the CFMEU made that decision, and probably did not have the knowledge of the Darwin building activities to do so. There was no evidence given by Huddy, so those findings are made from the various responses of those who gave evidence on those matters.

22    That probably does not matter much. As it happened, the Project at the Site operated by Reday was selected to be visited by a group of organisers. On 17, 18 and 19 June 2013, the CFMEU persons who visited it on one or more days included Ravbar, Genrich, Pearson and two other CFMEU organisers. Ravbar visited only on 17 June 2013. There is a contest about the number of visits, which is addressed below.

23    The following week, on 26 June 2013, Olsen, Griffin and Schieber attended the Site. The details of what occurred on those visits are to a significant extent not in issue. There are elements which are hotly contested. I discuss them and record my findings in the light of those contexts later in these reasons.

THE ALLEGATIONS

24    The allegations by the Director are that:

(1)    the CFMEU and Mr Olsen took action against Reday with the intent to coerce Reday to engage in industrial activity for the purposes of s 347(b)(vi), being to pay a fee to the CFMEU (membership fees of the Reday employees at the premises), and alternatively threaten to organise or take action against Reday with the same intent, contrary to s 348 of the FW Act; and

(2)    the CFMEU and each of Olsen and Pearson, whilst seeking to exercise rights of entry under Pt 3-4 of the FW Act, acted in an improper manner, contrary to s 500 of the FW Act.

In both instances, the CFMEU is alleged to be liable for the conduct of Pearson and Olsen by operation of s 363, or s 793, of the FW Act. Pearson and Olsen, who are the principal actors, deny engaging in the conduct alleged, and that any conduct on their part contravened s 348 or s 500 of the FW Act.

25    Section 348 of the FW Act prohibits a person from organising or taking, or threatening to organise or take, any action against another person with intent to coerce the other person, or a third person, to engage in industrial activity. The term “engages in industrial activity” is defined in s 347(b)(vi) to include paying a fee (howsoever described) to an industrial association. As to the subjective element of that conduct, s 360 provides that a person takes action for a particular reason if the reasons for the action include that reason, and s 361 provides that it is presumed that the action was taken for the reason or with the intent alleged unless the person proves otherwise.

26    It is convenient to make a few observations about that provision at this point. Part 3-1 of the FW Act concerns general protections between employees, employers and organisations. Section 336 identifies its objects to include protecting freedom of association by ensuring that persons are free to become, or not become, members of industrial associations; and are free to be represented, or not represented, by industrial associations; and are free to participate, or not participate, in lawful industrial activities: s 336(1)(b). The Director urges that s 348 should be construed in the context of a provision seeking to preserve, or protect against the erosion of, the freedom of association by prohibiting others from coercing people to engage in industrial activities, in this case, to pay a fee to the CFMEU. The Director says that payment of a union membership fee or fees, or a sum in lieu of union membership fee or fees, in the circumstances is the payment of a fee to the CFMEU within the scope of s 347(b)(vi).

27    The content of s 500 is less prescriptive. Relevantly, it provides that a permit holder exercising, or seeking to exercise, rights in accordance with Pt 3-4 of the FW Act must not intentionally hinder or obstruct any person, or “otherwise act in an improper manner”. The concept of an improper manner or acting in an improper manner is not the subject of further legislative description.

THE EVIDENCE

28    It is convenient now to make some general observations about the evidence. As I have indicated, the primary course of events is not significantly in issue, although there are aspects of it which are contentious and need separately to be addressed. Principally, the disputed evidence was given by E Milatos and M Milatos on the one hand, and Pearson, Ravbar and Olsen on the other. M Milatos is the father of E Milatos and is, in effect, the controller of Reday. He was the project manager for the construction stage of the project.

29    Overall, I found M Milatos to be an impressive witness, trying hard to be accurate and to describe what occurred. His reliability as a witness is confirmed to a significant degree by the fact that he took contemporary notes very soon after the events of 17, 18 and 19 June 2013. I accept that he made those notes on the evening of each of those days, and that he also reported his concerns to the police of what transpired on those days very promptly. His signed statutory declaration, dated 23 June 2013, apparently provided as part of the process of reporting that incident, is in essence consistent with what he said in evidence.

30    There are some other features of his evidence to note. It is, in my view, clear enough from the evidence of M Milatos, that it was very soon after the CFMEU conference of organisers commenced, that those carrying out building projects in Darwin at the time shared the knowledge that the CFMEU had brought in organisers from interstate to visit the various building sites around Darwin. I also consider that M Milatos had a general concern about the motives of the CFMEU. I have made allowance for that fact in assessing his evidence as, to a degree, he may have read into what I find below to have been quite aggressive conduct on the part of the CFMEU a little more than was there. It is also clear that, soon after the CFMEU first visited the Site on 17 June 2013, and started to identify health or safety issues, there was initially a reluctance on the part of M Milatos to accept them but then a decision to go along with the observations of the CFMEU organisers then present. I concluded that his responsiveness at the time, as explained in the course of his evidence, indicates that he reacted defensively to the CFMEU visit to the Site on 17 June 2013 and on subsequent days. It is also necessary to take account, in the assessment of his evidence, the fact that his notes which he said were contemporary included at least one entry concerning “Alex Rowe” which he acknowledged ultimately had been added at a later time. It gives rise to the capacity to suggest that he was a little confused about the date. In addition, I think that his descriptions of what happened may have included some inappropriate or overstated expressions.

31    Consequently, whilst I have no doubt that he was truthful and trying to be accurate, I have given weight to his evidence to the things which he directly and precisely described, and have been careful to draw my own conclusions on the significance of those things.

32    E Milatos also gave evidence. Again, I thought his evidence generally was impressive and reliable. There were sufficient minor variations in the evidence between M and E Milatos to be satisfied that they had not gotten together and made up a story. As with his father, I thought he was coherent and genuine and endeavoured to provide a reliable story of what transpired. Also, as with his father, I thought there was an element of spontaneity when confronting questions or issues which had not been directly addressed in his affidavit or in his evidence in chief, in a way which was persuasive.

33    I regret that I did not find the evidence adduced in some respects on behalf of the CFMEU as persuasive. It is, of course, necessary to make allowance for the fact that to a degree the team of CFMEU representatives who dealt with Reday in relation to the project was probably only put together on the morning of 17 June 2013. It did not routinely comprise people who were aware of each other’s idiosyncrasies. Where there were, as there inevitably would be, some discrepancies in descriptions of what occurred, I have carefully considered whether those discrepancies are natural or indicative of some collective but understandable shared perspective, or of indicating unreliability in versions of the events.

34    I have also taken into account that, although the nominated or designated purpose of the visit of the CFMEU officials to Darwin was a conference of organisers, in my view the overall picture is clearly one which, at least in part, involved an exposure of the CFMEU to the local builders and their employees, with a view in turn to exposing the eligible employees to the opportunity to become members of the CFMEU. There was no coherent conference program presented in evidence. There was a reference to some discussions about the conference, but no document was produced to indicate a timetable, a list of attendees, a list of presenters or speakers, or any coherent process of reporting back to a group after visits to sites or the other things which one might routinely expect if the purpose of the visit was educative, or largely educative, for all organisers. Huddy, who I have noted was the local CFMEU representative and on the evidence was not shown to be absent or unavailable to give evidence, was simply not called. Nor does the evidence of the CFMEU visits to the Project at the Site indicate that its primary purpose was to interview the employees of Reday on the project for the purposes of any conference. That is not how the events evolved. It is not consistent with the timing of the visits. It is also not fully consistent with what transpired at the time of, at least, the first visit to the Site. However, with one exception, there was a general reluctance to accept what I think is obvious. It is the more obvious when the second week of visits, after the conference, is seen as a “follow up” week. That was as generally described by several of the witnesses. The “follow up” was not for any educative or training purposes. It was clearly to speak to employees, at least at the Site of the Project, about the prospects of them joining the CFMEU. Those witnesses who did not acknowledge the obvious are, in my view, to be regarded cautiously.

35    Of course, the nature of and weight to be given to, each of the individual witnesses is the real question.

36    In the case of Genrich, I do not think it is necessary to express any views adverse to his credibility. He described the visit to the Site on 17 June 2013, but his evidence was quite vague. He confirmed some safety concerns were then observed. Whilst at the Site, he (with at least one other) according to his evidence split off from the Ravbar “group” and inspected part of the Site without their presence, and he said he then went to the top floor then under construction but only after the others had been there. In particular, he did not say anything about the communications between Pearson (and Ravbar) and M Milatos because, on his evidence, he was not present during those discussions. In my view, his evidence reflects either a general lack of recollection about what precisely transpired, or simply an approach to what transpired which was not precise and as detailed as others, and therefore cannot be given as much weight as other evidence. He did not directly contradict anything which M Milatos said, and as I have noted, he does not confirm critical conversations between Pearson and others on that day because he says he was not present at them.

37    There is also no need to doubt much about Schieber’s evidence. It was not challenged, except in relation to one event discussed later in these reasons. He attended the Site with Olsen and Griffin on 26 June 2013. He was directed to do so by Huddy after agreeing to return to Darwin in the second week. He had been in Darwin the previous week, but had had no dealings in relation to Reday or the Project, and had not learnt anything about them. He understood he and others were to meet the employees at the Site on 25 or 26 June 2013 to discuss any general safety issues and concerns, and to invite those employees to join the CFMEU. He followed through with that, with Griffin. He said that Olsen left the meeting which he and Griffin were attending on 26 June 2013 either at or soon after it started. He did not hear any conversation between Olsen and M Milatos that day.

38    Olsen also was only involved in relation to Reday on 25 and/or 26 June 2014. I did not think his evidence was very persuasive. I thought the way he gave evidence was unimpressive. When asked questions to which he might have been expected to answer in an uncomplicated way, he was either taciturn or cautious or avoided accepting what seemed to be obvious answers. His demeanour was noticeably different in examination-in-chief and in re-examination. Where his evidence conflicts with that of M Milatos, I do not accept it as I regard M Milatos as a far more reliable witness.

39    Griffin also attended the premises only on 25 and/or 26 June 2013. He was not exposed to the Project or to Reday in the preceding week. I thought his evidence was given honestly and in a straightforward manner. He was cautious, but appropriately so. He accepted that which Olsen did not accept, namely that the purpose of the visit on 26 June 2013 was to recruit new members to the CFMEU. He also was not present during the critical conversation between M Milatos and Olsen for the same reason as Schieber, namely that Olsen left that meeting with the Reday employees at or soon after it started.

40    Pearson’s role was confined to the first week of the two weeks in issue. His conduct on 17 June 2014 is a critical element in the complaint concerning him.

41    I also had difficulty in accepting the reliability of his evidence. There were one or two occasions where the focus of what he was saying changed from one point to another, that is, he appeared to change the evidence he was giving to accommodate other material which was put to him in the course of cross-examination. Certain parts of his evidence are directly inconsistent with the evidence of M Milatos and, having regard to other evidence, is not evidence I accept. In particular, I think he described the events which took place at the Site and his role in those events on 17 June 2013 in a way which understated the nature of the communications, in particular what was said by him as he walked through the Site. If the safety concerns were as grave as he presented them in his evidence-in-chief, I find it remarkable that, in the interests of the employees at that Site, he did not cause any record of those concerns to be made, and did not designate anyone to review their rectification, or prepare any report so that the oversight of their rectification could be done. He did not revisit the Site on 18 June 2013 to see how the safety exercise was carried out. He (and Ravbar) were unimpressive when explaining the basis upon which the inspection at the Site took place on 17 June 2013, in particular whether he was making use of Ravbar’s Northern Territory Health and Safety entry permit to justify his conduct, and there was an element of reconstruction in my view, in how that was explained. I have not accepted his evidence in preference to that of E Milatos or in preference to that of M Milatos.

42    As the Divisional Branch Secretary, Ravbar was the senior official of the CFMEU present at the Site during the inspection on 17 June 2013. I accept his evidence that, broadly speaking, his role was somewhat remote, because he was more or less constantly on the phone on other matters whilst the Site inspection and discussions (principally between M Milatos and Pearson) took place. Despite his seniority, and the fact that he was the senior CFMEU official to give evidence, he displayed a relatively low level of knowledge of the conference of organisers including its arrangement and the allocation of tasks. His evidence about the effectiveness of the evacuation plan exercise on 18 June 2013 was different from that of other persons. I accept his evidence that due to other distractions, he did not pay sufficient attention to the detailed conversations between Pearson and M Milatos on that day. Consequently, his evidence does not receive much weight in assessing the communications between Pearson and M Milatos. I do think he reconstructed his evidence to some degree. If the safety work concerns were as significant as enumerated in the evidence-in-chief, particularly through the affidavits of Ravbar, the fact that there was no record maintained of them (Pearson said because M Milatos was taking notes, which he later described as being on a “scrap” of paper), is very hard to accept.

43    In the light of those observations about the character of the evidence generally, I now turn to address the particular events and where necessary to make the findings of fact relevant to the proceeding.

FINDINGS OF FACT

44    In June 2013, the Site operated between 7 am and about 5 pm on each day, and until about noon on Saturdays. It did not operate on Sundays. The usual break times for the Site were between 9.30 am and 10.00 am or thereabouts and a lunchbreak between about noon and 1 pm daily.

45    M Milatos knew Huddy from his work as a builder over a number of years in the Northern Territory. He knew Huddy to be an official of the CFMEU.

46    On 15 June 2013, a Saturday, he received an email from Huddy at about 11.00 am containing 19 entry notices under the FW Act. Each of the 19 notices was filled out by Huddy, but signed by the relevant permit holder under s 512 of the FW Act. Each related to the Site where the project was being carried out, and gave notice that the permit holder proposed to enter the premises on “17, 18, 19, 20, 21/6/13”. It recited that the entry was authorised by s 484 of the FW Act, namely dealing with entry to hold discussions, and contained a declaration that the CFMEU was entitled to represent the industrial interests of an employee who performed work on those premises. The entry notices included notices from Ravbar, Schieber, Genrich and Pearson. In that batch of entry notices, there was no entry notice from Olsen or Griffin.

47    Ravbar, in that document (which is a pro forma containing the individual details for the job, the dates, the date of the entry notice and the signature) made no reference to any permit which he held under the WHS Act of the NT.

48    At about lunch-time on 17 June 2013, or just afterwards, E Milatos saw a group of persons, now clearly a team from the CFMEU, in the vicinity of the Site. They introduced each other. The persons who were present, on the evidence, were Ravbar, Pearson, Schieber and Genrich. I suspect a further person was present, based on the evidence of Genrich, but that person was not identified. I think that is the case because Genrich gave evidence of having walked around the Site with another CFMEU official, whilst Pearson, Ravbar and Schieber went in a different direction or went to different places at different times.

49    As I have noted, those persons from the CFMEU attended the Site at the general direction of Huddy, as part of the conference.

50    E Milatos contacted M Milatos to ask him to attend the Site.

51    At the time, because a concrete pour had been scheduled for a little later that afternoon, there was a truck being unloaded in the entranceway of the Site which E Milatos wished to get unloaded before the concrete truck arrived. He therefore asked the officials to return at a later time while he finished what he was doing. Pearson said words to the effect:

We don’t really have to tell you when we’re coming on site, you know we’re here now and we can come on site if we want to.

Whatever was precisely said, the CFMEU officials agreed to wait until M Milatos arrived on the Site. M Milatos arrived about 30 minutes later, and thereafter on that day the dealings were largely with him on the part of the CFMEU officials. To the extent that E Milatos was present, as he largely was, his observations and evidence of what he heard as he accompanied them during the tour of the premises confirms what M Milatos said had occurred.

52    When M Milatos arrived, each of the CFMEU officials introduced themselves. That included Pearson, who introduced himself as Kane. On the evidence, Pearson largely led the discussions. M Milatos complained that the entry notices were insufficient, that the Site was busy, and that they should have given a specific time to exercise the right of entry. Pearson replied that “you are lucky to have got a notice, we can come onto the Site whenever we like”. There is some dispute as to whether M Milatos agreed to the CFMEU officials present coming onto the Site. I find that M Milatos did not invite them onto the Site, but acquiesced as they walked onto the Site and started to comment, and take photographs (none of them were produced) of features which they raised as breaches of health and safety requirements.

53    It is proper to record that, in the 30 minutes or so that the union officials spent time waiting for the arrival of M Milatos, they had an opportunity to look at the Site and at the work being carried out on the Project. It is clear that, during that period, they identified some safety matters which were of concern to them.

54    The only notices of entry were those under s 484 to have discussions with employees who are members, or potential members, of the CFMEU. Ravbar did have an entry permit under which he could exercise powers under the WHS Act, but there are requirements which must be followed before that power can be exercised. No notice of entry was given in respect of that permit. No such permit was shown to M Milatos. It was not asserted by Ravbar when entry was sought to the premises that it provided a basis for entry, although that does not contravene the WHS Act because it was not requested. There was no clear evidence from Ravbar, who was the only person holding such a certificate, to identify a reasonable suspicion of a particular contravention prior to entry to the Site. After M Milatos arrived, there was no request to have discussions with Reday employees at the Site.

55    It was, on the evidence, clearly not Ravbar who took control or led the CFMEU team on that day. It was Pearson who did so. That is consistent with the evidence of both of them, as well as with the evidence of both M and E Milatos. Ravbar said that he was distracted, or committed to other activities, and spent most of the time on the phone whilst the CFMEU officials were on the premises. Ravbar did not give evidence to support Pearson’s claim that, somehow, Pearson knew that he (Pearson) did not have a WHS Act entry permit, but was entitled to act as he did because it was implied that he was assisting Ravbar in Ravbar’s exercise of his functions under his permit under the WHS Act. I consider that is an after-the-event contrivance. It is one matter which weighed in my mind when considering the extent to which I should have regard to what Pearson said on that or other matters. Nor is there any statutory provision identified which might have given rise to Pearson’s “implied authority” in that way.

56    As noted, in the event of such significant contraventions of workplace safety as were asserted, neither Pearson nor Ravbar nor any other CFMEU official made a report to the NT Work Health and Safety Authority, or to any other CFMEU officials (including in particular those who might have been, or were, to return to Darwin in the following week to follow-up on the work that had been undertaken in the week of the conference). Nor did they make any internal report or record of what had been observed. There was evidence that photographs had been taken on iPads by Pearson and others but they were not produced and Pearson said that those records had been lost. The taking of the photographs (albeit with date and time footers) might enable refreshment of memory but it is not in my view reflective of itself of what was said to have been significant contraventions which justified the entry on the premises and the conduct which there took place.

57    Moreover, despite the grave descriptions of the conduct which is said to have demonstrated numerous contraventions of health and safety provisions, no CFMEU official in any event conducted any further inspection to establish the extent to which, if at all, Reday had dealt with the matters raised during the inspection of the premises on 17 June 2013, other than observing the evacuation drill on 18 June 2013. Pearson did not return to the Site for that purpose. That is not of itself of much significance, as Ravbar did so, but there was no other follow-up of the concerns expressed on 17 June 2013. As I have indicated in referring generally to the evidence of the witnesses, the evidence of Olsen, Schieber and Griffin was that they were following up on the issue of union membership, rather than for any other purpose.

58    The CFMEU says that the entry was with the consent of Reday through M Milatos.

59    I find that M Milatos did not in fact invite or permit the CFMEU officials to enter the premises, other than on the basis of an understanding as to his obligations as asserted by Pearson. M Milatos first asked the CFMEU team what right they had to enter the premises. They did not suggest that they wished to consult with any of the members. The answer he received was that, as they (CFMEU) have union members potentially on Site, they were entitled to enter at any time and that they had safety concerns. It was also said that they had had some complaint about safety issues from an identified CFMEU member on the site employed by Reday. M Milatos asked who that person was, but they would not say. I do not accept that there had been such complaints. It would have been easy to call Huddy to confirm the complaints, presumably with some system of documenting such complaints, as Huddy is the CFMEU official in Darwin who would have received any such complaint. Pearson said that the CFMEU representatives in the circumstances were entitled to enter. I find M Milatos acquiesced to the CFMEU officials entering the Site because he thought he had no other practical option. That does not amount to him consenting to the CFMEU officials entering the Site. Although he was cross-examined about the contents of a transcript of an interview conducted about late July 2013 by James Matters, when he was interviewed by the police following his complaint, what he said is not inconsistent with that conclusion. Indeed, I found his evidence that he did not consent to the entry, despite firm cross-examination, quite impressive.

60    In my view, it is plain that it was after the CFMEU officials asserted their authority to enter, rightly or wrongly, that entry to the Site was permitted and the “walk through” of the Project was undertaken. M Milatos bowed to the pressure of the CFMEU mainly expressed by Pearson.

61    Having entered the premises just near the entrance, there was initially a somewhat vigorous discussion in which Pearson and others pointed out safety issues. They included mesh leaning up against a scaffold, the lack of fall protection around a truck which was being unloaded and which (they said) involved the driver working at a height above two metres; and visible weaknesses or holes in the scaffolding coverage which did not protect pedestrians from falling objects. There was also an issue raised about safety of pedestrian movements on public footpaths in front of the Site. Those matters were, after some discussion, and with some reluctance, accepted by M Milatos (other than the public pedestrian safety, which he said had been approved by the Darwin City Council) and he said he would do something about them. The inspection of the premises then took place. In the final submissions, nothing was made of the complaint about the inadequate pedestrian control around the Site due to the partial blockage of normal pedestrian movements because of the entrance and associated scaffolding. I do not make anything of the fact that that matter was raised.

62    In the light of the whole of the evidence, I find then that the CFMEU team split into at least two groups. Genrich and another officer went to in the ground floor and then to the lower floors and Pearson, Ravbar (albeit lagging behind and mainly on the telephone) and Schieber went to the central staircase and to the top level then under construction.

63    In the course of doing so, Pearson identified a damaged lifting sling lying on the ground, and which he put into a disposable bin. Again, albeit with some reluctance at the time, M Milatos accepted that as a legitimate safety issue.

64    The entrance stairway to the then top level exposed a lack of fall protection around stairways, a lack of lighting in the stairwell, exposed reinforcement bars, and on the top working level where workers were engaged in or near and around the lift well, there was a lack of scaffolding or other fall protection for the employees at the edges of the concrete floor. M Milatos said that part of the concrete pour then proposed was to improve the access to the stairwell to that level. At all events, again it is now accepted, and was with some reluctance by M Milatos at the time, that those complaints were legitimate. In addition, Pearson raised concerns about the absence of an emergency evacuation plan, or the availability of a stretcher box with proper access, in the event of an emergency or an accident. Again, with reluctance, M Milatos accepted that complaint. Genrich, in the course of his separate inspection, also discerned that certain plant and machinery was being operated without proper paperwork, and that an unqualified worker was operating particular plant and machinery. Again, those matters were accepted. During that inspection, I find (contrary to the evidence of Pearson, but consistent with and reflective of the evidence of M Milatos and E Milatos) that at various points Pearson, and possibly others, told the employees on the top level to stop working and to leave that work area because it was not safe, and on lower levels Genrich, and possibly others, pulled cords out of plugs and told workers that they should stop working because of the safety issues which had been identified. In addition, when asked about the evacuation plan, M Milatos agreed to develop a more formal plan overnight, and he was told that there was to be a demonstration of that at the commencement of work the following day. The concrete pour was stopped. I do not accept that that was done at the free option of M Milatos. In my view, it was stopped by M Milatos because he perceived that he would not be able to complete the proposed concrete pour due to the presence of the CFMEU officials and the influence they had in relation to the premises. I find that they specifically told M Milatos that the concrete pour was to be stopped.

65    In reaching those conclusions, I have taken into account the evidence of Pearson, Genrich and Ravbar. Ravbar, who as I said accepted that he was not fully attentive to what was happening on the Site, denied that any employee was directed to cease work, but accepted that there were firm requests made of an employee to cease to carry out work. As a matter of strict language, there may be a difference between a request and a direction, but in the circumstances in which those events took place and in the tone in which I find they occurred, the conduct of the CFMEU officials was aggressive and demanding in a way which, even if expressed as a request, was seen by those involved as one which could not, in practical terms, be ignored.

66    In my view, the purpose or one of the purposes of that visit by the CFMEU officials was not, as the notices of entry had indicated, to have discussions with the employees on the Site. It was to exercise some “muscle” as a step towards procuring an increment in the membership of the CFMEU. Whether it was perceived that the approach adopted on that occasion would persuade the employees of Reday that they should join the CFMEU, or to persuade Reday that, if it did not persuade its employees to join the CFMEU, it would be confronted with similar sorts of problems in the future upon such inspections, was not fully explored in the evidence. It may have been a combination of both. But the purpose disclosed in the notices of entry was simply not pursued. Nor do I accept that the purpose disclosed in the notices was the real purpose of the CFMEU officials who attended on that day. There was, on 17 June 2013, no request to discuss any matters with employees at the Site. Accepting that, whilst waiting for M Milatos to arrive, the CFMEU officials identified some legitimate safety concerns, their conduct when M Milatos arrived was not to raise those concerns and then to have a discussion with employees. It was to inspect the Site for other safety issues. The more significant safety issue (that is, those not identified whilst waiting for M Milatos which were readily addressed) were not, as I have noted, the subject of any process of being recorded and followed up. The conduct of the inspection, including (as I have found) directing the stopping of work, and matters such as checking the licenses of drivers indicates that the intention was not to exercise or only to exercise any power under s 484 of the FW Act on that date but to fulfil, or also to fulfil, some other purpose. Even if there were legitimate safety issues, as there were, the way in which the CFMEU officials conducted themselves on that day in a peremptory and aggressive manner is not explained in the absence of any attempt by them to monitor the steps which they required to be taken to avoid the safety issues identified or to rectify them, or the failure to engage the WHS Inspectorate of the Northern Territory to do so. In my view, the explanation for the absence of any follow-up, in a real and practical sense, is that the identified concerns were not really concerns of sufficient moment about safety as to warrant what was done except as explained by an attempt to “soften up” Reday, E and M Milatos. I have also taken into account Pearson’s assertion, which had no proper foundation, that the employee of Reday at the Site had expressed safety concerns to the CFMEU. I find that that was a misstatement, directed towards ensuring an opportunity arose to enter the Site and to investigate possible safety concerns, rather than to exercise the s 484 right of entry.

67    That overall assessment is confirmed, rather than diminished, having regard to the events of 18 June 2013. At the completion of events on 17 June 2013, M Milatos was left with the tasks of remedying the various safety issues which had been pointed out to him, and developing an evacuation drill procedure to be tested at the commencement of work the following morning. It is unclear how, if at all, there was any designation of officials from the CFMEU to attend to that inspection of the evacuation drill. At all events, they did not attend at the normal commencement time at 7.30 am, and it was only after E Milatos contacted Huddy to ask him where the CFMEU representatives were that Ravbar, Genrich and another CFMEU official attended the Site to observe the evacuation drill. Despite the denials of Ravbar, I am satisfied that he told M Milatos that the drill had better be successful or he would otherwise get some CFMEU officials, or others, to attend the Site to sort out that inadequacy. The drill apparently worked satisfactorily. No further action was required by the CFMEU officials in relation to it and Genrich said it was satisfactory. It was followed by a meeting with the employees.

68    Whilst Ravbar did not accept having said words of a threatening nature on that occasion, he acknowledged he would have come across as a somewhat cranky person at the time. He was, too, in his evidence critical of the quality of the evacuation drill. However, he did not do anything about it, as it would have been expected of him to do if he were really concerned that it did not meet safety requirements, so I accept that in a general way he made some remarks to M Milatos about the consequences of not having a satisfactory evacuation plan and drill as part of the softening up process. In his cross-examination, Ravbar also accepted that he may have mentioned to M Milatos that the CFMEU had a dozen or so officials in Darwin at the time.

69    Following the evacuation drill, at the request of Ravbar, the employees of Reday were gathered together at a different point and Ravbar and Genrich and the third CFMEU official (whose name was not identified) spoke to those persons about the benefits of joining the CFMEU. During that period, at the request of Ravbar, M Milatos had removed himself from the vicinity.

70    At about the time that conversation ended, Ravbar left the premises. He said he had other urgent things to attend to. Pearson came to the premises at about that time and asked to meet alone with M Milatos. He asked M Milatos to talk to the employees about joining the union. There was some discussion about whether Reday could pay the union fees directly and then debit the money out of the employees’ wages over time. M Milatos agreed to speak to the employees of Reday about joining the union. It is not suggested that Pearson was threatening during that conversation or said anything which was in any way inappropriate. There was no further contact between Reday and the CFMEU officials that day after Pearson left the Site.

71    The notes made by M Milatos of that occasion tend to confirm what he said in evidence, namely that arrangements had been made the previous afternoon to meet with the CFMEU officials at 7 am on the Site but the union officials did not attend until shortly after 8 am. The conduct of Reday confirms that too. M Milatos spent the previous evening preparing the written evacuation plan. He expected it to be demonstrated before work commenced on 18 June 2013, so he and the Reday employees were waiting around without commencing work until the CFMEU officials arrived. He had cancelled the concrete pour arranged for the previous afternoon. He noted specifically that Ravbar threatened that, if the proposed evacuation drill was not successful, he would bring his gang on site and there would be “hell to pay”. The drill apparently worked satisfactorily.

72    There is a factual dispute as to whether Pearson attended the Site on 19 June 2013. M Milatos said that he did. He made a note of it in his diary of 19 June 2013. In addition, he gave an account to the police of that meeting on the same day. Having regard to my respective assessment of the reliability of the two witnesses, for the reasons given, I accept his evidence that such a meeting took place. Apart from the corroboration by his diary note, and the fact that he thought the matter sufficiently serious to report it to the police and to make the statutory declaration as a contemporaneous account of the events, he also has a copy of Pearson’s business card which he said Pearson gave to him on that occasion (Pearson said he gave it to him on 17 June 2013). The consistency of his evidence as recorded in writing on those two documents also gives me confidence that his description of the conversation on that day is a reliable one. I do not think there is any scope for him to be mistaken about the date or the content of that conversation. I am well satisfied that he did not fabricate what he recorded in his statutory declaration and in his diary on the same day as the events took place, and that he made those notes and that report when the conversation, which took place on that date, was fresh in his memory. As I have observed above, M Milatos accepted that his record was not a verbatim record, and in certain ways “recorded” the conversation in more graphic words than was the case. My findings make allowance for that

73    I accordingly find that Pearson and M Milatos, at Pearson’s request, had a conversation at which no others were present shortly after 7 am on 19 June 2013. During that conversation, Pearson asked M Milatos if he had been able to sign up any of the employees to join the CFMEU. M Milatos said that he had not and that the employees were not interested. Pearson said words to the effect that M Milatos did not understand that he should make them join to preserve a good relationship between Reday and the CFMEU, and that Reday should pay the membership fees of its employees and then take them from the employees’ future wages in instalments. M Milatos took that to be a threat to force him him to pay the money, and said as much to Pearson and that he would not do it. After a further exchange, Pearson said that M Milatos should speak to the Reday employees again, and that he would see him on the following Friday when he would expect a cheque to be paid to the CFMEU to cover the membership fees of the employees of Reday. M Milatos said he could not promise that they would support that, and that he would speak to them.

74    I note that the diary entry of 19 June 2013, as initially made, is not the same as it now appears. There has been added a reference to an inspector of the Fair Work Building and Construction Federal Agency, with telephone contact details. M Milatos did not recall how that entry was made. I am satisfied that, despite that appearing on one version of the notes in a column different from that used for the notes, his notes nevertheless represent reliably what M Milatos remembered of the discussion at the time of that note. They are consistent with what he told the police as recorded in the statutory declaration. They are consistent with his present oral evidence.

75    I will discuss later in these reasons the significance of that conversation.

76    The evidence is that, on 20 June 2013, Pearson telephoned M Milatos to enquire how he was going about talking to the Reday employees about joining the CFMEU.

77    Obviously, at some point during that week the CFMEU, through an official, decided that certain CFMEU officers should return to Darwin the following week and make contact, at least with Reday. On 21 and 22 June 2013, Reday received by email four right of entry notices signed by Olsen, Griffin, Schieber and by Huddy, giving notice that they would be seeking to enter the Site during the week commencing 24 June 2013, pursuant to s 484 of the FW Act. Each of the days of that week were designated in the notices. Section 501 of the FW Act thereby obliged Reday, E and M Milatos, not to refuse or deny proper entry.

78    On 25 June 2013, arrangements were made for three of the CFMEU officials to attend the Site at about midday on 26 June 2013. There is a dispute about whether that arrangement was made by telephone from an officer of the CFMEU named “Geoff”, or was made by Griffin, Schieber and Olsen attending the Site. I do not need to decide who is more accurate about that because the content of the communications that day are not in dispute. The Milatos’ have a particular reason to recall the conversation because it occurred as they were in the car just after having had lunch for E Milatos’ birthday. It is quite possible that the three CFMEU officials attended the Site to make that arrangement, but did not find the Milatos there and made the telephone call received by them on the phone. The difference in their evidence about how the meeting was arranged has not affected my overall assessment of the reliability of the evidence of any of those five men. The relevant events of 26 June 2014 are quite short. Griffin, Schieber and Olsen attended the Site around the time of the lunch break on 26 June 2013. By arrangement with the Milatos’, they were to meet the employees in accordance with the right of entry notices which had been given. It was the view of both Schieber and Olsen that they were entering the Site on that basis. Each gave evidence that, because of the small number of employees available to meet them, Griffin and Schieber attended that meeting and Olsen, although he was there at the start, then left the area so that there did not appear to be an over-numbering of CFMEU officials to discuss membership with the Reday employees.

79    Having left the meeting soon after it started, Olsen then had a conversation with M Milatos. It was relatively amicable, and nothing of moment was discussed whilst Griffin and Schieber were in the meeting with the employees in the lunch room. At the completion of that meeting, they left the meeting and walked past the area where Olsen and M Milatos were together. Olsen asked whether there were “any takers” or words to that effect, and was told that there was no positive response from the employees of Reday.

80    I do not accept Olsen’s evidence that he did not make that inquiry. His evidence was that the purpose of the meeting was not about securing employees of Reday as CFMEU members, and that he had little or no interest in whether they had agreed to sign up as members. That was, in my view, the purpose of the meeting as confirmed by Griffin and Schieber. It is confirmed by the documents (membership applications) which were left at the meeting. The brief conversation which I have found to have occurred between Griffin and Schieber on the one hand and Olsen on the other is supported Griffin’s evidence as well as that of M Milatos.

81    It is important to record that finding, because it is the event upon which, according to M Milatos, the conversation he was having with Olsen changed in content and context. He says, and I accept, that Olsen said that the best thing for Reday was to pay the union membership fees for the employees if they could not afford to pay it, and deduct that amount from them over time. If that were the case, he said, the union would know it as a union site and leave Reday alone. I also accept that Olsen said, as M Milatos deposed, that if Reday had six or eight or ten members on site that were members of the CFMEU, the next time the CFMEU officials came up to Darwin they would focus on other jobs around town and would not focus on the safety issues relating to the Reday site or sites.

82    I accept that Olsen, in the course of his conversation with M Milatos, raised with M Milatos what other builders in Darwin had been saying about the CFMEU’s activities during the previous week. The conversation between Olsen and M Milatos was, in my view, to the effect described by M Milatos. I have made some observations about the way in which Olsen gave evidence. I have taken into account whether Olsen might naturally be a taciturn person, as his evidence was in part given that way, but having regard to the way in which he answered questions in other respects, I do not think that is likely. He explicitly denied a conversation in terms of those referred to by M Milatos, or those referred to by E Milatos. At one point, his denial about the conversation with E Milatos referring to Sunbuild was given in a way which appeared to me to be contrived. As I have said, his denial that the visit was for the purposes of getting Reday employees to join the CFMEU appeared to me to be a semantic response as he acknowledged discussing getting authorisation to deduct fees from wages, but he said he was speaking in some future sense.

83    I also accept the evidence of E Milatos of his conversation with Olsen as they were walking towards the gate of the premises and after Schieber and Griffin had gone to the gate. Olsen agreed that he then told E Milatos that the CFMEU officials would be up in Darwin more often, and would be getting entry permits under the NT legislation. I find, having regard to other evidence and my assessment of the witnesses that Olsen did warn E Milatos that Reday should not go down the path of Sunbuild because the CFMEU would come down harder on them, and that Sunbuild was in the target zone. The evidence indicates (as Olsen acknowledged) that Sunbuild had been visited in the preceding week and there were events at that site which required the attendance of the police. It would be natural, having regard to Olsen’s interest about what other builders were thinking about or reacting to in relation to the CFMEU’s visits, for that topic to come up. As counsel for the Director put, there was no need for any CFMEU officials to talk about deduction authority until they had secured members and neither Schieber nor Griffin spoke about it at the meeting, so a topic about requiring Reday to pay membership fees of employees or make a cheque payable to the union fitted in with the evidence and the trend of the Milatos’ evidence.

ARE THE CONTRAVENTIONS ESTABLISHED?

84    Section 140 of the Evidence Act 1995 (Cth) (the Evidence Act) provides that the Court must be satisfied that the case has been proved on the balance of probability in respect of a civil proceeding. Each of s 348 and s 500 are provisions, the contravention of which is a civil remedy provision: see the table in s 539(2), items 11 and 25. I have nevertheless borne in mind, when making the findings of fact referred to, that s  140(2) of the Evidence Act requires me to have regard, before reaching the level of satisfaction required, to the nature of the cause of action, the nature of the subject matter of the proceeding, and the gravity of the matters alleged. Those matters inform the strength of the evidence necessary to establish a fact or facts on the balance of probabilities: Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449; Construction, Forestry, Mining and Energy Union v John Holland Pty Ltd (2010) 186 FCR 88. The point is there made that s 140(2) of the Evidence Act is really a restatement of the observations of Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336 at 362.

85    I have referred above to the provisions of s 348 and the related provisions.

86    Counsel for the CFMEU submitted that a contravention of s 348 requires the Director to establish three elements:

(1)    that the “coercing party” took, or threatened to take any relevant action;

(2)    that the coercing party had the intention to negate the choice of the other person, leaving that other person with no realistic choice but to succumb to the course of action required by the coercing party; and

(3)    that the alleged conduct undertaken was illegitimate, unconscionable or unlawful.

Each of those topics is then addressed in the written submissions separately under the headings “negation of choice”, “subjective intention” and “illegitimate, unconscionable or unlawful”.

87    In relation to s 348, it is alleged that Olsen took or threatened to take action against Reday; with the proscribed intent, namely to coerce Reday to engage in industrial activity. The term “engaging in industrial activity”, as noted, is defined in s 346 to include whether the person does or does not pay a fee (however described) to the CFMEU: s 347(b)(vi).

88    Counsel for the respondent referred specifically to two decisions said to support the need to inquire into the third “element” of s 348 by objectively measuring the evidence. Fair Work Ombudsman v Maritime Union of Australia [2014] FCA 440 at [286]-[304] (MUA case) includes an analysis of s 348 of the FW Act. It appears that the term “illegitimate, unconscionable and/or unlawful conduct” was used in the statement of claim of the applicant in that matter: see at [282]. Siopis J, apart from reciting the contentions and referring to the cases upon which the contentions were there based concluded at [303]-[304] that, to determine if there was a contravention, the expression “intent to coerce” in s 348 of the FW Act should be construed as having the same meaning as given by the Full Court in State of Victoria v Construction, Forestry, Mining and Energy Union (2013) 218 FCR 172 (State of Victoria v CFMEU). The contravention of s 348 alleged in the MUA case was not proved, or made out, because the relevant official of the CFMEU successfully rebutted the assertion made by the applicant in that case that his intention in engaging in the particular action alleged was to coerce any other person to engage in industrial activity in the manner alleged.

89    In State of Victoria v CFMEU, the Full Court also addressed s 343 of the FW Act. Section 343(1) provides:

(1)    A person must not organise or take, or threaten to organise or take, any action against another person with intent to coerce the other person, or a third person, to:

(a)    exercise or not exercise, or propose to exercise or not exercise, a workplace right; or

(b)    exercise, or propose to exercise, a workplace right in a particular way.

Note:    This subsection is a civil remedy provision (see Part 4-1).

(2)    Subsection (1) does not apply to protected industrial action.

On that appeal, it was sought to revisit the expression of what is contemplated or encompassed within the expression “intent to coerce”. The effect of the earlier decisions are conveniently reflected in the observations of Merkel J in Seven Network (Operations) Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (2001) 109 FCR 378 at [41], where his Honour said:

The above cases establish that there must be two elements to prove “intent to coerce” under s 170NC(1). First, it needs to be shown that it was intended that pressure be exerted which, in a practical sense, will negate choice. Secondly, the exertion of the pressure must involve conduct that is unlawful, illegitimate or unconscionable.

90    The Full Court (Kenny, Buchanan and Griffiths JJ) concluded that that analysis should stand: per Buchanan and Griffiths JJ at [72], with whom Kenny J agreed at [5].

91    In my view, there is no subjective element in identifying the conduct about which the Director complains. That is a matter of fact finding on the evidence as to whether that, which the Director alleges took place, did take place. I have made findings on those issues.

92    The second step, namely determining whether Olsen had the necessary intent to coerce Reday to engage in the relevant industrial action involves the two questions there referred to, that is whether the intention was to negate choice, and not merely to an extent to influence or to persuade or induce, and whether that intention extended to the engaging in the particular industrial activity alleged.

93    The third step of categorising the conduct which the Director alleges was the object of the action taken as industrial activity is, in the circumstances of this matter, not in issue. It is the question of whether the intention to coerce existed which includes the two steps referred to as (2) and (3) in the submissions of counsel for the respondents referred to in [86] above.

94    Counsel for the respondents also emphasised that the expression “intent to coerce” carries a significant element of compulsion or negation of choice. Reference was made to National Tertiary Education Industry Union v Commonwealth of Australia (2002) 117 FCR 114 at [103]. In that matter, Weinberg J stated:

The approach to the expression “intent to coerce” taken in each of the authorities set out above makes it clear that what is required is an intent to negate choice, and not merely an intent to influence or to persuade or induce. Coercion implies a high degree of compulsion, at least in a practical sense, and not some lesser form of pressure by which a person is left with a realistic choice as to whether or not to comply.

95    If the subjective intention is found to exist, bearing in mind the onus in s 361, the element of illegality or illegitimacy, unconscionability or unlawfulness, will flow from determining whether the intention to coerce was an intention with the sufficient degree of forcefulness to threaten Reday with the intent of securing Reday to engage in the industrial activity: Klein v Metropolitan Fire and Emergency Services Board (2012) 208 FCR 178 at [14].

96    In the light of my findings, the critical issue to consider is the subjective intention. It is necessary to determine the real or actual intent of Pearson and Olsen in engaging in the conduct to which I have referred: see for example the observations of French CJ and Kiefel J in Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2014] HCA 41 at [19] and per Gageler J at [85].

97    Obviously, the direct evidence of Olsen as to why he engaged in the conduct which he has been found to have engaged in will be capable of discharging the onus of proof: Board of the Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500 at [45] per French CJ and Crennan J, and at [128]-[132] per Gummow and Hayne JJ. In this case, unlike in some other cases, the direct evidence of the decision maker is in part to contest that the conduct alleged was undertaken at all. It is then difficult for a decision maker to say in relation to particular conduct (which was denied but which has been found to have occurred) that that decision maker did not have the proscribed state of mind, but had some different state of mind or reasons for undertaking that conduct. Nevertheless, there is direct evidence from both Pearson and Olsen that they did not intend, by any conduct (including the denied conduct) to coerce Reday to undertake the industrial activity referred to.

98    On that latter point, I have found that the CFMEU, and relevantly Olsen on his visit to the Site on 26 June 2013, was seeking to achieve membership of the CFMEU for those employees who were eligible for that membership and were employed by Reday. There is nothing unlawful with that. Nor is there anything wrong with inviting an employer such as Reday to arrange with its employees that the employer will direct debit from salary or wages payments of the membership dues payable to an industrial organisation such as the CFMEU.

99    However, both the Pearson request and the Olsen threat (as defined respectively in the statement of claim at [19] and [25]) have been found to have been made out. In the case of each of them, that adds significantly to the assessment of whether they contravened the FW Act.

100    The threat made by Olsen involved the threat to take action with intent to coerce Reday to engage in industrial activity, namely to do or not to do the making of a payment to the CFMEU. The question whether the necessary intent to coerce existed may be established if, by reason of s 360 and s 361, the conduct was engaged in for a particular reason which includes the proscribed reason. Because the proscribed reason is alleged, it is presumed that the conduct found to have been engaged in was taken for that proscribed reason or with that intent unless Olsen proves otherwise.

101    In my view, the CFMEU, and Olsen, communicated to Reday an intention to inflict harm by further disrupting work on the Site in future unless it met the demand to pay the membership fees of the employees of Reday who were eligible for membership of the CFMEU. The Director accepts that the intention to coerce must be an intention to exert such pressure as will, in a practical sense, negate choice, rather than to influence or persuade or induce. Consequently, the Director accepts there must be a high degree of compulsion, at least in a practical sense, and not some lesser form of pressure by which a person is left with a realistic choice as to whether or not to comply: State of Victoria at [71]-[72] and [90]-[93]; Seven Network (Operations) Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (2001) 109 FCR 378 at [41].

102    In this matter, I conclude that the conduct of Olsen by what he said did have that character of coercion, by the threat of unlawful economic pressure on Reday. It took place at the Site in his conversation with M Milatos on 26 June 2013. The words used by Olsen, judged objectively, communicated to Reday that, unless Reday met the demand to pay the union fees of the CFMEU on behalf of Reday’s employee, Reday would be exposed to the risk of the CFMEU disrupting work on the Site, or other building sites of Reday, in the future. Accepting that the three CFMEU officials intended to exercise their notices of entry on 26 June 2013 to invite or persuade the Reday employees to become members of the CFMEU, once Olsen learned that those actions (by Scheiber and Griffin) had been unsuccessful, he spoke to M Milatos in terms which were deliberate and which were intended by Olsen to carry the threat of exposure to disruptive action by CFMEU officials in the future if Reday itself did not pay those fees on behalf of its employees. That was clearly a coercive statement which was intended to operate, in a practical sense, as presenting a high degree of compulsion on Reday through M Milatos. That is why the alternative of future CFMEU action in relation to Reday’s building sites was put forward. It was not merely an invitation to Reday, but a request made with the threat of significant future adverse consequences if it were not acceded to. The pressure was significant, because the context of the inspection of the Site the previous week (about which I have recorded my findings) provided the substance to, or consequence of, the threat. The CFMEU officials, despite having given notices of entry to exercise rights under s 484, had conducted the inspection without proper authority, without the consent of Reday, and in a manner which lead to the shutting down of the Site on 17 June 2013. As I have found, it was an exercise of showing how the CFMEU and its officials could, without consent, behave in a way which could close down a building site. I have found that the CFMEU and its officials, but particularly Pearson, on 17 June 2013 had no right to enter the Site as they did or to conduct themselves in the manner they did, and had no real concern to ensure the safety of the employees on the Site. The element of coercion and the illegitimate threat is confirmed by what Olsen said to E Milatos shortly after his conversation with M Milatos. There is no lawful basis on which the CFMEU, through Olsen, was entitled – by the threat – to endeavour to get Reday to pay to the CFMEU money to equate to the membership fees of its employees as if they were members of the CFMEU.

103    The context in which that conduct specifically took place is important. As I have found, in the case of Pearson, it took place largely on 17 June 2013 where the entry by the CFMEU officials, in a practical sense led by Pearson, was not authorised pursuant to the notices of entry which had been given, and had some purpose extraneous simply to securing a safe site for the reasons which I have given. I conclude, as I have earlier, that this purpose was to indicate the extent to which the CFMEU could, if minded to do so, disrupt the efficient progress of a building site. That was not then a legitimate exercise of the right of entry, nor, in my view, a fully legitimate expression of concerns about safety issues (although safety issues emerged and were legitimately raised). The forceful demands made by Olsen that Reday pay fees to the CFMEU on behalf of its employees, even if none of the employees wished to join the CFMEU, in the context, in my view, means Olsen contravened s 348 of the FW Act.

104    Section 500 is relied upon because it is alleged that Pearson acted in an improper manner on 17-19 June 2013 and Olsen acted in an improper manner by his conduct on 26 June 2013.

105    Each of Pearson and Olsen entered the Site in exercise, or purported exercise, of their rights as foreshadowed in the rights of entry notice to which I have referred for the purposes of having discussions with employees of Reday. I have rejected the proposition that they attended on each occasion at the invitation of Reday independently of those entry notices.

106    Consequently, as they were seeking to exercise powers under Pt 3-4 of the FW Act, s 500 may be contravened when their conduct exceeds that authorised by the exercise of those rights. Section 500 requires an objective assessment or determination whether there was conduct or action of an improper manner. It does not depend upon intention.

107    In R v Burns and Hopgood (1995) 183 CLR 501, the High Court said in the majority judgment at 514-515:

Impropriety does not depend on an alleged offender’s consciousness of impropriety. Impropriety consists in a breach of the standards of conduct that would be expected of a person in the position of the alleged defendant by reasonable persons with knowledge of the duties, powers and authority of the position and circumstances of the case. When impropriety is said to consist in an abuse of power, the state of mind of the alleged offender is important: the alleged offender’s knowledge or means of knowledge of the circumstances in which the power is exercised and his purpose or intention in exercising the power are important factors in determining the question whether the power has been abused. But impropriety is not restricted to an abuse of power. It may consist in the doing of an act which a director or officer knows or ought to know that he has no authority to do.

108    It is common ground that those observations, although applicable to provisions which preceded the FW Act, are relevant to the legislative ancestors of s 500 and are applicable to s 500.

109    In my view, the allegations concerning Olsen having acted in an improper manner are made out by reason of the findings I have already made.

110    I do not regard the issue of the 19 notices of entry, or their terms, as indicating that the CFMEU thereby was acting in an improper manner independently of the particular conduct complained of on the part of Pearson and Olsen. That is not alleged in the statement of claim.

111    In the case of Pearson, I have found that he and others entered the Site on 17 June 2013 when they did not make any direct attempt to do so for the purposes of the notice of entry, namely discussions with employees of Reday, but to demonstrate the capacity of the CFMEU through its officials to enter upon and find flaws with a construction site, and thereby to expose Reday to the closing of the Site. His conduct in purporting to have a right of entry which entitled him to enter the site as he wished and to act as he did, was clearly improper conduct. His threat to apply inappropriate pressure if Reday did not pay membership fees to the CFMEU on behalf of its employees in the course of, and towards the end of that day and on 19 June 2013, was also improper conduct.

112    Olsen made the threat to apply inappropriate or illegitimate pressure if Reday did not pay membership fees to the CFMEU on behalf of its employees. The threatened inappropriate pressure consisted of the threat to treat Reday in a way that the CFMEU could do, interfering with its building processes. As the Director put it:

The CFMEU would enter the site in large numbers regularly and engage in disruptive conduct similar to the site visits of the previous days.

It was also improper because Olsen demanded that Reday enrol its employees as members of the CFMEU without their consent. I find that he contravened s 500.

113    As it is the same conduct as supports the finding of a contravention of s 348, I propose to hear counsel on his behalf before making my formal determination of that contravention.

114    It also follows that I consider that the CFMEU, by the conduct of Olsen giving rise to the contraventions I have found, has also contravened ss 348 and 500 of the FW Act in the same manner and, by the conduct of Pearson giving rise to the contravention I have found, has also contravened s 500 of the FW Act in the same manner.

115    I propose to publish these reasons for judgment and hear the parties as to the appropriate determination and as to how the applicable pecuniary penalties in the other matters should be addressed.

116    I have addressed the contraventions as specified in the application, and in the Director’s closing written submissions. I note that the statement of claim and the respondent’s closing written submissions suggest that, although it is not claimed that Pearson contravened s 348, it may be claimed that the CFMEU contravened s 348 by Pearson’s conduct. I have not made any finding to that effect because it was not clear that such a finding was sought.

Associate:

Dated:    13 March 2015