FEDERAL COURT OF AUSTRALIA

Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2015] FCA 225

THE COURT ORDERS THAT:

1.    The further hearing of the application be listed at 10:15 am on 20 April 2015.

2.    On or before 31 March 2015 the applicant file and serve:

(a)    any affidavits on which he proposes to rely relating to the relief sought by him; and

(b)    an outline of his written submissions.

3.    On or before 14 April 2015 the respondents file and serve:

(a)    any affidavits on which they propose to rely relating to the relief sought by the applicant; and

(b)    an outline of their written submissions.

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

REASONS FOR JUDGMENT

1    In 2012 a bitter industrial dispute arose between the Construction, Forestry, Mining and Energy Union (“the CFMEU”) and Grocon Pty Ltd and some of its wholly owned subsidiaries. It will be convenient to refer to these companies collectively as “Grocon” unless reference to a particular company is necessary. The dispute related to the demand by the CFMEU that Grocon should agree to employ persons nominated by the CFMEU to act as shop stewards on building sites controlled by Grocon. Grocon refused to employ a number of persons who had been nominated by the CFMEU.

2    At the time Grocon was undertaking construction work on two sites. One of them was in Lonsdale Street Melbourne and was referred to in the proceeding as the Myer Emporium Site. The other was located in McNab Avenue Footscray and was referred to as the McNab Site. In August and September 2012 CFMEU officials and members attended the sites on various days and sought to prevent vehicles and Grocon employees entering the sites. Some of these activities contravened injunctions which had been granted by the Supreme Court of Victoria. These contraventions were subsequently held to be contempts of court and substantial fines were imposed on the CFMEU for these contempts.

3    Contemporaneously, the applicant, the Director of the Fair Work Building Industry Inspectorate (“the Director”) commenced the present proceeding against the CFMEU and a number of named officials. The Director alleged that each of the respondents took action against Grocon with the intention of coercing it into complying with industrial demands made by and on behalf of the CFMEU. The Director contended that, in so doing, each of the respondents contravened ss 348 and 355 of the Fair Work Act 2009 (Cth) (“the Act”). One, it was alleged, had also contravened s 346. He sought relief by way of declarations, the imposition of pecuniary penalties and the payment of compensation to sub-contractors who were allegedly prejudiced by the impugned action.

THE PARTIES

4    The Director holds a statutory office created by s 9 of the Fair Work (Building Industry) Act 2012 (Cth) (“the FWBI Act”). He has standing to bring the present proceeding: see s 539 of the Act; ss 59A and 59C of the FWBI Act.

5    The CFMEU is an association of employees registered as an organisation pursuant to s 26 of the Fair Work (Registered Organisations) Act 2009 (Cth). By s 27 of that Act it is constituted as a body corporate. Its affairs are governed by Rules registered under the Act.

6    The second respondent, Mr John Setka, is an officer and employee of the CFMEU. At relevant times he was an Assistant Secretary of the Victoria – Tasmania Divisional Branch of the CFMEU’s Construction and General Division (“the Branch”).

7    The third respondent, Mr Shaun Reardon, was, at material times, an officer and employee of the CFMEU and Vice President of the Branch.

8    The fourth respondent, Mr Derek Christopher, was, at material times, an officer and employee of the CFMEU and an organiser of the Branch.

9    The fifth respondent, Mr Elias Spernovasilis, was, at material times, an officer and employee of the CFMEU and a Vice President of the Branch.

10    The sixth respondent, Mr Bill Oliver, was, at material times, an officer and employee of the CFMEU and Secretary of the Branch.

11    The seventh respondent, Mr Ralph Edwards, was, at material times, an officer and employee of the CFMEU and President of the Branch.

12    The eighth respondent, Mr Gareth Stephenson, was, at material times, an officer and employee of the CFMEU and an organiser of the Branch.

13    The ninth respondent, Mr Craig Johnston, was, at material times, a member and officer of the CFMEU and a Branch Council Member of the Branch.

THE CONTEMPT PROCEEDING

14    For reasons which will shortly emerge it is necessary to say something at this stage about the contempt proceedings in the Supreme Court.

15    In an attempt to bring to an end what it claimed were blockades of the two sites Grocon sought and obtained a series of injunctive orders from the Supreme Court. Relevantly, these injunctions restrained the CFMEU from “preventing, hindering or interfering with free access to, and free egress from [the two sites] by any person or vehicle” and from “causing, inducing, procuring or inciting any person to do or attempt to do” any of these acts. Injunctions were granted on 21 August 2012, 22 August 2012 and 28 August 2012.

16    Grocon alleged that the CFMEU had contravened these orders. It filed two applications in the Supreme Court alleging that the CFMEU had contravened the injunctive orders in a number of ways and at different times. Those contraventions were alleged to have occurred on 28 August 2012, 29 August 2012, 30 August 2012 and 31 August 2012 at the Myer Emporium Site and on 5 September 2012 at the McNab Site. In all, 30 separate charges were pressed.

17    The trial of the contempt charges proceeded before Cavanough J. His Honour found the charges proven and recorded five findings of contempt, one for each relevant day: see Grocon Constructors (Victoria) Pty Ltd v Construction, Forestry, Mining and Energy Union (2013) 234 IR 59; [2013] VSC 275. He later imposed penalties in respect of these contempts: see Grocon Constructors (Victoria) Pty Ltd v Construction, Forestry, Mining and Energy Union (No 2) [2014] VSC 134. An appeal from his Honour’s orders to the Court of Appeal was dismissed: see Construction, Forestry, Mining and Energy Union v Grocon Constructors (Victoria) Pty Ltd [2014] VSCA 261. An application by the CFMEU for special leave to appeal from the Court of Appeal’s decision was refused on 13 February 2015: see [2015] HCATrans 24.

PROCEDURAL HISTORY

18    Although the proceeding was commenced in October 2012, the trial did not commence until 12 August 2014. This delay occurred for a number of reasons. One was that there were a series of substantial amendments to the pleadings. The Director’s second further amended statement of claim was not filed until 20 December 2013. The CFMEU’s defence was not finally settled until 24 July 2014 and was further amended in the course of the trial, on 21 August 2014. Difficulties also arose in relation to the availability of witnesses and counsel.

19    Some further delay was occasioned by an application made by the CFMEU for a stay of the proceeding. The application relied on s 553 of the Act which provides that proceedings for a pecuniary penalty order for a contravention of civil remedy provisions, such as ss 348 and 355, were stayed if criminal proceedings had been commenced against the respondent for an offence and that the offence was constituted by conduct that was “substantially the same as the conduct in relation to which the order would be made.” In rejecting the application I held that proceedings for contempt were not “criminal proceedings” within the meaning of s 553 of the Act: see Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2014] FCA 770.

20    The CFMEU applied for leave to appeal from my decision to reject its application. A Full Court dismissed the application: see Construction, Forestry, Mining and Energy Union v Director of Fair Work Building Industry Inspectorate [2014] FCAFC 101. In doing so, however, the Full Court disagreed with my construction of the term “criminal proceedings” in s 553. The Full Court said (at [39]-[41]) that:

“39.    Consistent with what the High Court said in Witham v Holloway, the CFMEU was charged with contempt in the SCV [Supreme Court of Victoria] … . The Attorney-General was joined as a plaintiff. At least from the time of the joinder of the Attorney-General, the “proceedings [were] in the public interest to vindicate judicial authority or maintain the integrity of the judicial process”: Witham v Holloway at 531. The proceedings were instituted to punish the CFMEU for failing to obey Court orders. The relief sought was that the CFMEU “be punished for contempt”: … Under the Evidence Act 2008 (Vic), proceedings are civil or criminal. A criminal proceeding is defined in that Act relevantly to mean the prosecution for an offence: sch 2 to the Evidence Act 2008 (Vic). In the SCV, the CFMEU was prosecuted for an offence (that of contempt) and the SCV proceedings were conducted to the criminal standard: see [15] above and s 141 of the Evidence Act 2008 (Vic). The CFMEU was convicted of five criminal contempts and was punished for that disobedience by the imposition of fines: … The fact that contempt proceedings are, for reasons explained in the authorities, tried summarily and not before a jury is immaterial. So too is the fact that the proceedings were commenced in the civil jurisdiction of the SCV. The fact that different procedures have been adopted for trying contempt charges does not alter the essential characteristic of the proceedings as criminal proceedings. The Director’s submission that the contempt proceedings were civil proceedings when commenced because the charge did not plead that the conduct of the CFMEU was deliberate or contumacious should also be rejected.  The proceedings were criminal because Grocon and the Attorney-General were seeking convictions and punishment for offences.

40.    What then was the effect of the contempt proceedings in the SCV on the proceedings before the Federal Court? From the outset, it is at least arguable that the proceedings issued by the Director in the Federal Court were stayed against the CFMEU to the extent that they sought pecuniary penalty orders: s 553(1). The SCV proceedings were criminal proceedings for an offence. Although it is strictly unnecessary to decide that the SCV proceedings were from commencement criminal proceedings for the purposes of s 553 of the FWA, the fact that five criminal convictions have been entered against the CFMEU in relation to substantially the same conduct cannot be ignored. Upon the entry of those convictions in the SCV in relation to substantially the same conduct, the proceedings in this Court against the CFMEU, to the extent that they sought pecuniary penalty orders in relation to that conduct, stood dismissed: s 553(2).

41.    Those conclusions are to be understood against the background of the following additional matters. First, the Federal Court proceedings were stayed and then stood dismissed against the CFMEU, not against the named individuals in the Federal Court proceeding. Second, the Federal Court proceedings for a pecuniary penalty order were only dismissed against the CFMEU to the extent that the conduct in the Federal Court proceedings was substantially the same as the conduct which was the subject of the criminal contempts. The balance of the proceedings against the CFMEU and against the individuals remained and remains unaffected. Third, the Federal Court proceedings were stayed and then stood dismissed against the CFMEU because the Director sought the imposition of a pecuniary penalty order. Indeed, the Federal Court cannot make a pecuniary penalty order against the CFMEU for a contravention of a civil remedy provision if the CFMEU has been convicted of an offence constituted by conduct that is substantially the same as the conduct constituting the contravention of the civil remedy provision: s 552 of the FWA. As we have said, to the extent that the proceedings sought other relief against the CFMEU in relation to the conduct that was substantially the same as the conduct which was the subject of the criminal contempts, those proceedings remained unaffected.”

21    The hearing and determination of the application for leave to appeal delayed the start of the trial by some days.

THE EFFECT OF THE FULL COURT’S DECISION

22    The Director conceded that a consequence of the Full Court’s decision was that the present proceeding stood dismissed to the extent that it seeks the imposition of pecuniary penalties against the CFMEU in respect of conduct at the Myer Emporium Site between 28 and 31 August 2012 and at the McNab Site on 5 September 2012 because that conduct was substantially the same as that which led to the five convictions of the CFMEU for criminal contempt of the Supreme Court.

23    The Director, however, contended that the CFMEU was liable for other relief (such as declaratory relief) in respect of the impugned conduct on these days. On other relevant days the CFMEU, he submitted, was liable to the full range of remedial orders (including pecuniary penalties), available to the Court. Those other relevant days were identified in the Director’s second further amended statement of claim as being 22, 23, 25 and 27 August and 4 and 6 September 2012 at the Myer Emporium Site and 17, 18, 20 and 28 August 2012 at the McNab Site. I note in this context that, in the Director’s second further amended statement of claim reference is also made to certain threats being made on 14, 15 and 16 August 2012. As I understand the Director’s final submissions, these threats were relied on as evidence of intention rather than relevant action for the purposes of sections 346, 348 and 355. There were three alleged threats. The first threat took place on 14 August 2012 at the Myer Emporium Site. Mr Spernovasilis said to Mr Joe Brinzi, the National Occupational Health and Safety Manager, employed by Grocon that if Grocon did not come to an agreement with the union about the shop steward issue, “you could have 100 employees walk through these projects as early as next week.” The second threat occurred on 15 August 2012 when Mr David Lythgo, a member of the CFMEU, said to Mr Max McCabe, Grocon Site Manager at one of the Grocon sites, the Mirvac Yarra Edge Tower 8 Site at Southbank, words to the effect that the CFMEU was not just going to put a picket line on one of Grocon’s projects, it was going to smash all of them at the same time. The third threat occurred on 16 August 2012 when Mr Reardon said to Mr Andrew Brinzi, National Plant Manager, employed by Grocon, at the McNab Site words to the effect of “I’ll be back with a barbecue.”

24    The CFMEU contended that the Director’s concession was too narrowly confined. It submitted that all of the conduct alleged against it in the present proceeding, including that occurring on 28-31 August 2012 and 5 September 2012, was part of a continuous “blockade”. The adoption of a “common sense” rather than a semantic approach (cf Pearce v R (1998) 194 CLR 610 at 622, 623) led to the conclusion that the CFMEU had been punished by the Supreme Court for all of its conduct at the Myer and McNab sites in August and September 2012. The CFMEU relied on observations of Cavanough J ([2013] VSC 275 at [355]) that all of the conduct with which he had been concerned was “inextricably bound up with the ongoing industrial dispute between the CFMEU and Grocon” and that “[i]t would be completely artificial and wrong to consider the events that occurred on each of the pleaded days in isolation from the events that occurred on the other pleaded days.”

25    It may be accepted that the conduct which occurred at the Myer Emporium Site on 28-31 August 2012 and at the McNab Site on 5 September 2012 was related to the ongoing industrial dispute over the placement of CFMEU nominated shop stewards and that the conduct was “continuing and related”. It does not follow that the CFMEU was convicted and penalised by the Supreme Court for conduct which occurred on other days. Cavanough J had earlier said ([at 14]) that:

“The applicants acknowledge that many of the 30 charges are in the nature of alternatives. They submit that, in the end, there should be 10 separate findings of contempt. In my view, having regard to the substance of the matter, only one finding of contempt per day is warranted.” (Emphasis added).

Separate penalties were imposed in respect of each of the charges. No convictions were recorded or penalties imposed in relation to conduct which occurred on other days at the two sites. This is hardly surprising given that the charges did not allege contravening conduct on those other days.

26    In my view s 553 of the Act does not operate to stay or dismiss the claims made by the Director in this proceeding in relation to days other than those considered by Cavanough J. As the Full Court held, the Court is required to make a factual comparison with a view to determining whether the relevant criminal offence (here contempt of court) is constituted by conduct “that is substantially the same” as the conduct relied on by the Director to support his civil penalty claim against the CFMEU. The Full Court did not make a determination about whether and, if so, to what extent the relevant conduct in the two proceedings was “substantially the same”.

27    In Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2015] FCA 47 Mortimer J dealt with similar submissions, advanced by the CFMEU, in which the Director was seeking pecuniary penalties and other relief against the CFMEU for alleged contraventions of s 348 of the Act. At the time the application was made contempt charges arising from the same events were pending in the Victorian Supreme Court. Having examined in detail the High Court’s decision in Pearce her Honour explained (at [56]) that:

“56. I have dealt with Pearce at some length because in my opinion it demonstrates the unanimous view of the judges in that case that, whatever the circumstance in which the concept of double jeopardy is raised, the appropriate analysis is to examine the elements of the offences concerned and, through the elements, what the accused is alleged to have done. Since, as the Full Court in CFMEU v Director of Fair Work pointed out, the avoidance of double jeopardy (and the extension of the protection to civil penalty provisions) is the legislative purpose of s 553, then in my opinion it is appropriate to apply the analysis undertaken in Pearce, in determining whether the conduct constituting the “offence” of contempt is “substantially the same” as the contravening conduct alleged in this proceeding. That approach requires a comparison of the elements of each of the offence(s) in the criminal proceeding and the civil penalty provision, in order to ascertain what, in each proceeding, it is sought to punish the offender for. In this task, the facts underlying each element will need to be considered, otherwise the comparison would be hypothetical. The emphasis, however, is on what a person is alleged to have done by reference to the elements of each offence, and the elements of the civil penalty provision.”

28    In the present case the CFMEU has already been adjudged guilty of criminal contempt of Court. The elements of the offence were the same in each of the five counts. The conduct which was held by Cavanough J to have satisfied each of those elements was conduct which occurred on the particular day on which the contempt occurred. While similar conduct may have occurred on other days (days in respect of which the Director now seeks the imposition of pecuniary penalties) his Honour did not have regard to that other conduct when finding the CFMEU guilty of the five charges. The CFMEU never stood in jeopardy of being found liable and punished for its conduct on days other than those covered by the contempt charges.

29    Such an approach to the construction and application of s 553 is supported by the reasons of Jessup J in General Manager of the Fair Work Commission v Thomson [2013] FCA 380. His Honour was there concerned with the meaning and effect of s 312 of the Act. That section is in substantially similar terms to s 553. Section 312(1)(b) poses the same criterion as does s 553(1)(b), namely, that “the offence is constituted by conduct that is substantially the same as the conduct alleged to constitute the contravention.” His Honour said (at [8]) that:

“The construction for which the respondent contends does not, in my view, sit comfortably with the text of s 312 itself. Paragraphs (a) and (b) of subs (1) speak of ‘an offence’ and of ‘the offence’, in the singular. Paragraph (b) speaks of ‘the contravention’, also in the singular. Although, no doubt, the singular includes the plural in this provision, the comparison which is implicitly required by the subsection must proceed offence by offence, and contravention by contravention. That is to say, each offence with which the person concerned has been charged must be lined up with a particular alleged contravention (of the RO Act) for the purpose of determining the matter of substantial correspondence to which para (b) refers. Then, if the person is convicted of that offence, the proceedings for the order, in relation to that contravention, are dismissed: subs (2).”

In each case the criminal conduct of the CFMEU occurred on a particular day and it is that conduct which must be lined up with the contraventions alleged in the present proceeding. To the extent that there is no temporal overlap, s 553 does not operate to stay or dismiss the present proceeding.

LEGISLATION

30    The Director’s case was brought under three provisions of the General Protections Part – Part 3-1 of the Act. These provisions were ss 346, 348 and 355.

31    Section 346 relevantly provides that:

“A person must not take adverse action against another person because the other person:

(a)    …

(b)    …

(c)    does not engage, or has at any time not engaged or proposed not to engage, in industrial activity within the meaning of paragraphs 347(c) to (g).”

32    Section 347 contains a definition of the phrase “engages in industrial activity”. A person so engages, inter alia, if he or she does, or does not “comply with a lawful request made by, or requirement of, an individual association”: s 347(b)(iv). Relevantly, Item 7 of s 342(1) defines “adverse action” as “action that has the effect, directly or indirectly, of prejudicing the person in the persons employment or prospective employment …”

33    Section 348 of the Act provides:

“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 engage in industrial activity.”

34    The relevant parts of the definition of “to engage in industrial activity” in s 347 which were relied on by the Director in support of his case under s 348 were:

“(b)    does, or does not:

(iv)    comply with a lawful request made by, or requirement of, an industrial association; or

…

(e)    complies with an unlawful request made by, or requirement of, an industrial association; …”

35    Section 355 relevantly provides that:

“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)    employ, or not employ, a particular person;

…

(c)     allocate, or not allocate, particular duties or responsibilities to a particular employee …; or

(d)    designate a particular employee … as having, nor not having, particular duties or responsibilities.”

36    Section 361 of the Act has application to each of these three sections. Relevantly it provides that:

“(1)    If:

(a)    in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and

(b)    taking that action for that reason or for that intent would constitute a contravention of this Part;

it is presumed, in proceedings arisen from the application, that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.

(2)    …”

THE EVIDENCE

37    On 17 June 2013 directions were given by consent for evidence to be given on affidavit. As a result 24 affidavits were filed by the Director in August and September 2013. At a directions hearing, held on 5 May 2014, counsel for the respondents belatedly requested that the evidence in chief of witnesses to be called by the Director should be given orally. I directed that counsel for the respondent should identify those parts of any affidavits filed by the Director which they considered to be contentious and to so advise counsel for the Director. I further directed that the evidence so identified should be called orally. Otherwise counsel for the Director would be entitled to read the remaining (non-contentious) parts of the affidavits subject to any evidentiary objections. The oral evidence of some witnesses did not correspond, in all respects, with that given on affidavit in respect of contentious matters. In particular there were omissions which, in the absence of other evidence, meant that the Director was unable to support all of the allegations contained in the final version of his statement of claim.

38    The Director relied on affidavits which had been sworn or affirmed by the following witnesses:

    Mr John Van Camp, the Head of Safety Systems and Industrial Relations at Grocon.

    Mr Jamie Rigg, the Project Manager, employed by Grocon, at the McNab Site.

    Mr Frank Bortoletto, the Executive Project Manager, employed by Grocon.

    Mr Andrew Brinzi, the National Plant Manager, employed by Grocon.

    Mr Joe Brinzi, the National Occupational Health and Safety Manager, employed by Grocon.

    Mr Brian McAdam, the Operations Manager, employed by Grocon in Victoria.

    Mr Tino De Giusti, Grocon’s Project Manager at the Myer Emporium Site.

    Mr Graham Smith, an Operations Supervisor, employed by Monjon Australia which provided security staff at both sites.

    Mr Gregory Alfred, a Fair Work Building Industry Inspector.

    Mr Simon Caruana, a Fair Work Building Industry Inspector.

    Mr Graham Littlejohn, a Fair Work Building Industry Inspector.

    Mr Damien Cravino, a Fair Work Building Industry Inspector.

    Mr Andrew Strachan, the Business Development Manager of AAM Pty Ltd.

Each of these witnesses was called. Each gave some evidence orally and otherwise adopted their affidavits. Each was cross-examined.

39    Ten other deponents of affidavits were not required to attend to give any evidence in chief or to be cross-examined. They were:

    Ms Jessica Berenyi, the Assistant Director, Government and Parliamentary Policy, employed by the Fair Work Ombudsman.

    Mr Christopher Biggs, a Fair Work Building Industry Inspector.

    Mr Christopher Enright, the Director of the Regulatory Compliance Branch of the Fair Work Commission.

    Mr Rick Hanmer, a Fair Work Building Industry Inspector.

    Mr Shad Heyman, a Fair Work Building Industry Inspector.

    Mr John Post, a Fair Work Building Industry Inspector.

    Ms Anatole Pow, a Fair Work Building Industry Inspector.

    Mr Matthew Tarpkos, a Fair Work Building Industry Inspector.

    Mr Murray Gregor, a Fair Work Building Industry Inspector.

    Ms Meredith Knight, a Fair Work Building Industry Inspector.

40    The affidavits of this latter group of deponents were admitted into evidence subject to evidentiary objections. For the most part the evidence of these witnesses was either formal or exhibited visual images of events which occurred at or near the two sites.

41    Mr Steve Haitidis, the Managing Director of E&S Steelfix Pty Ltd advised the Court on the fifth day of hearing that he was no longer willing to participate in the proceeding. Mr Haitidis had provided affidavit evidence relating to what he said were the financial losses incurred by his company as a result of some of the CFMEU’s impugned conduct. Mr Haitidis’ affidavit was not read. The Director did not seek to enforce his attendance.

42    The parties examined the visual images which were in evidence and which were derived from various sources including the mainstream media and footage filmed by inspectors. There were still frames and video footage. The parties agreed on what visual material should be placed before the Court. It was collected on disk and USB sticks which were tendered as exhibits.

43    Much of the evidence, including the visual images, had also been tendered in the contempt proceeding before Cavanough J in the Victorian Supreme Court.

44    The CFMEU and the other respondents asserted an entitlement to rely on penalty privilege and the privilege against self-incrimination. This they were entitled to do: see John Holland Pty Ltd v Construction, Forestry, Mining and Energy Union (No 2) [2014] FCA 1032 at [39]-[52] (Barker J).

THE TWO SITES

45    The two sites were described by Cavanough J in Grocon Constructors (Victoria) Pty Ltd v Construction, Forestry, Mining and Energy Union [2013] VSC 275 at [88]-[92] and [94] as follows:

“88    At all relevant times the third plaintiff, Grocon Constructors (Vic) Pty Ltd, was in occupation of the Emporium site, which was located at 269-321 Lonsdale Street, Melbourne. The land had formerly been the site of the well-known Myer Lonsdale Street store. A new Myer Emporium was in the process of being constructed on the site. … Generally speaking, the building site was bounded by Lonsdale Street to the north, Caledonian Lane to the east and Little Bourke Street to the south. The western boundary was irregular. Adjacent to the western boundary was land comprising in part serviced apartments and in part a ‘service area’ for customers of the Myer Bourke Street store to attend in their vehicles and collect purchases. The northern and southern boundaries of the Emporium site extended for a substantial part of the city block between Swanston Street and Elizabeth Street.

89    An overhead gantry had been constructed over part of the width of Lonsdale Street, including one vehicle lane and the footpath. It ran for most of the length of the northern boundary of the site. Access to the gantry was via a set of stairs leading up from a point about halfway along the (enclosed) Lonsdale Street footpath. The footpath beneath the gantry could be accessed from either the east or the west. The gantry housed a site office and also change rooms and lunch sheds for construction workers employed directly by Grocon. The gantry also afforded access down to the building site itself. This was the normal point of access to the site for Grocon employees and staff. Another overhead gantry had been constructed over Caledonian Lane. It was intended for use, and was normally used, by subcontractors rather than direct Grocon employees. It contained facilities for the subcontractors and, again, it afforded access down to the building site itself.

90    Putting aside the two gantries, there were four street level access points to the Emporium site. One of these was called Gate 1. It was located at the north-eastern corner of the site (the Lonsdale Street/Caledonian Lane corner), very near the point directly below the eastern end of the Lonsdale Street gantry. At the relevant time, Gate 1 was the place at which trucks entered the site to collect and remove excavated soil. During the relevant period Gate 1 would not have been a viable point of access to the site for workers on foot regardless of any incidents occurring directly in front of it. On the other hand, Gate 1 was … very near the eastern end of the narrow enclosed pathway leading to the stairs by which access to the site via the Lonsdale Street gantry could be obtained, and also … very near the northern entry point to Caledonian Lane.

91    The other 3 ground level access points were from Little Bourke Street. One was at a loading bay. Another was at an indented part of the perimeter hoarding. The other was at the south-western corner of the site. These access points were not customarily used by the full time Grocon workers, because they did not lead conveniently to the change rooms and the lunch sheds. Rather, these access points were used to allow crane dogmen into the site from time to time during the day.

92    In addition, there were 4 other points of connection or potential connection between the Emporium site and the areas outside it. Each involved an underground tunnel. They were as follows:

•    A tunnel connecting the Emporium site to the David Jones building located on the opposite side of Little Bourke Street. This had a retaining wall made of vertical metal elements which obstructed passage through the tunnel and which would take an hour to disassemble.

•    A tunnel … connecting to the Myer building on the opposite side of Little Bourke Street. Passage through this tunnel was obstructed by timber hoarding, which would take approximately 30 minutes to disassemble. There was a 5 metre drop at the end of the tunnel into the Emporium site.

•    Another tunnel … connecting to the Myer building on the opposite side of Little Bourke Street. Passage through this tunnel was obstructed by concrete “block-work”, which would take around 4 hours to disassemble. Again, there was a 5 metre drop at the end of the tunnel into the Emporium site.

•    A gate in a wall between the north-western corner of the Emporium site and the abovementioned Myer service area. The gate had not been constructed by the Grocon group or any related company and was not intended for use, and had not been used, by Grocon for access to the Emporium site. The Myer service area itself was accessible only by an underground tunnel and only by vehicle – pedestrian access was not permitted.

…

94    The McNab building site [was located] in McNab Avenue, Footscray. McNab Avenue commences at a roundabout at its intersection with Napier Street. It is a dead end street. Trucks and other vehicles would customarily enter the McNab site via a gate known as Gate 2 located some distance along McNab Avenue. The only way for a truck or other vehicle to enter McNab Avenue, and thus the site, was via the roundabout. The McNab site was not the only workplace or place of business in McNab Avenue.”

46    These descriptions accorded with the documentary and oral evidence given in the present proceeding, particularly by Mr McAdam and Mr Rigg, and were not contentious.

47    I would add the following in respect of the McNab Site. At the “dead end” of McNab Avenue there was a foot bridge which provided pedestrian access to the Footscray railway station. Video footage, taken during relevant events, shows people walking towards and from the end of the street where the bridge was located. The bridge crossed McNab Avenue. A person standing on it could look up McNab Avenue towards the Napier Street intersection.

48    It should also be mentioned that the head office of the Grocon Group was located on the first floor of the Queen Victoria Building (“the QV Building”). That building stands on the north east corner of the intersection of Swanston and Lonsdale Streets in the city of Melbourne. The Myer Emporium Site abutted Lonsdale Street not far from the south west corner of the same intersection. Parts of the site were visible from some of the windows of the office.

FACTUAL FINDINGS – STANDard OF PROOF

49    To a large extent the evidence called by the Director was not disputed by the respondents. To the extent that it was this occurred through cross-examination of some of the witnesses.

50    When evidence has been challenged, and it is necessary for the Court to determine whether the evidence, or some of it, should be accepted, the civil standard of proof is to be applied. Given the seriousness of the allegations made and the potential penalties faced by the respondents if the allegations are made good the principles expounded in Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-2 must be borne in mind. They also find expression in s 140 of the Evidence Act 1995 (Cth). These principles have guided my fact finding in the present proceeding.

THE UNDERLYING DISPUTE

51    The principal evidence relating to the dispute which gave rise to the blockades of the two sites was given by Mr Van Camp. He clearly had a good understanding, derived from long experience representing the interests of workers and employers, of the practicalities and nuances of industrial relations negotiations. He was, in my view, a truthful witness. I accept his evidence.

52    Grocon and the CFMEU were parties to a number of enterprise agreements which applied to Victoria, New South Wales and Queensland. The Victorian agreement had a nominal expiry date of 31 March 2011. Agreements in other States were due to expire at about the same time. In March 2011 Grocon entered into discussions with the CFMEU with a view to negotiating replacement agreements. Mr Van Camp represented Grocon in these negotiations. Mr Spernovasilis was the CFMEU’s representative in discussions which related to the Victorian agreement. These discussions took place between March and September 2011. Over this period Mr Van Camp also had discussions with other officials of the CFMEU relating to the New South Wales and Queensland agreements.

53    By late September 2011 Mr Van Camp considered that agreement had been reached on all significant issues which had arisen in negotiations about the Victorian agreement. At about this time Mr Spernovasilis had a private conversation with Mr Van Camp in which Mr Spernovasilis said words to the effect that “[th]ere are some outstanding issues that you have with the branch that need to be addressed.” When Mr Van Camp enquired as to what those issues were Mr Spernovasilis said that Mr Oliver would raise the issues with him.

54    At about the same time Mr Spernovasilis said to Mr Van Camp that he wished to nominate a person who Grocon would be required to employ as an on-site CFMEU representative at the Myer Emporium Site. Mr Spernovasilis also said words to the effect that “To conclude the agreement, you will have to make some concessions” and that “[i]n this industry, it is usual for there to be CFMEU appointed representatives onsite. The CFMEU have good relationships with other construction companies that have union appointed representatives”. Mr Van Camp responded by saying that “Grocon has a policy that it does not just employ shop stewards and employs people based on merit.” A number of similar exchanges occurred in ensuing months.

55    On about 14 October 2011 a meeting took place at Grocon’s head office. At that meeting Mr Noonan, the Divisional Secretary of the Construction and General Division of the CFMEU, said words to the effect that “[w]e need to find a solution” and that “Grocon need to roll over ‘in relation to some issues of importance’ to the Branch.”

56    About 10 days later a further meeting took place between CFMEU and Grocon representatives at the Grocon head office. Amongst those present were Messrs Grollo, Van Camp, Noonan, Oliver and Spernovasilis. In the course of this meeting Mr Spernovasilis said: “The CFMEU can’t be on the outside looking into the two biggest jobs in Melbourne.” One of these “jobs” was the Myer Emporium project. Mr Van Camp responded that Grocon could not agree automatically to employ shop stewards simply because the CFMEU nominated such people. This issue was not resolved at the meeting.

57    Another meeting took place early in December 2011 at which Messrs Van Camp, Oliver and Spernovasilis were present. In the course of the meeting Mr Oliver said to Mr Van Camp that “If you fucking think that we’re going to sign the agreement without you agreeing on shop stewards, you’ve got another thing coming.” Mr Van Camp told Mr Oliver that “… this is a new late entry. We haven’t been formally told about these things and this is the first time that you told us why you haven’t signed the agreement. We expected it to be signed already.” Messrs Oliver and Spernovasilis advised Mr Van Camp that Mr Setka was not happy that Grocon had not agreed to engage any CFMEU approved shop stewards at the Myer Emporium Site. Following these discussions Mr Van Camp came to the view that there was no prospect of the parties resolving outstanding issues through further negotiations. Those outstanding issues, in addition to the shop steward issue, included drug and alcohol testing, the wearing and display of CFMEU stickers and logos and the right of entry to Grocon sites by union officials.

58    On 10 January 2012, Mr Van Camp wrote a letter to Mr Oliver in which he advised that Grocon had decided that further bargaining would not resolve outstanding issues and that it proposed to place before its workforce, with a view to it being approved by ballot, an agreement containing all the terms on which agreement had earlier been reached. It distributed the proposed agreement to its employees on 12 and 13 January 2012. Over the next two months legal action ensued between the CFMEU and Grocon. These proceedings occurred in this Court and Fair Work Australia. The CFMEU sought to obtain approval for a protected action ballot order and to prevent Grocon placing the agreement before its workforce. By the end of March 2012 the parties had determined that nothing was to be gained by persisting with the legal proceedings and they were all discontinued.

59    At the time that they reached agreement to discontinue the various proceedings Messrs Van Camp and Spernovasilis also agreed that the CFMEU and Grocon would enter into an enterprise agreement on the previously agreed terms and that ongoing discussions would proceed in relation to outstanding issues. The new Victorian agreement was approved by Fair Work Australia and commenced operation on 20 June 2012.

60    In cross-examination it was put to Mr Van Camp that the discontinuance of proceedings in March 2012 occurred in part because the CFMEU and Grocon had entered into what was described as “a side agreement”. One of the terms of that agreement was said to be that, prior to any new Grocon project commencing, the CFMEU could nominate candidates which it wished Grocon to consider for employment, and, if employed, could stand for election as employee representative and/or health and safety representative. Mr Van Camp denied the existence of any such side agreement. He did however acknowledge that:

“… the business and union had agreed that we would consider that, if suitable applicants were put forward and were interviewed, and they met the requirement of Grocon, they would be offered employment. If they were then successful and as an employee – and were then nominated by their – their peers, and they were elected, then they could fulfil that role.”

Mr Van Camp was questioned about the issues which he raised during interviews and the criteria which he applied in determining whether an applicant for employment, who had been nominated by the CFMEU, should be engaged. He said that one of the important matters was how the nominee would “perform their duties if they succeeded in being elected to employee representative or a health and safety representative role”. He was concerned to establish whether any nominee, if engaged and then elected as a Union representative, would be subject to direction from the CFMEU or would give priority to the wishes of Grocon and its employees. I accept Mr Van Camp’s evidence. To the extent that there was any agreement on the issue it was that Grocon was prepared to consider engaging workers nominated by the CFMEU but reserved the right, following interview, to choose not to employ the nominated person. These arrangements were procedural in nature.

61    Mr Van Camp also denied that there was any breach by Grocon of the arrangements. I accept his denial.

62    Between September 2011 and June 2012 Mr Spernovasilis nominated four men whom he said the Union would like Grocon to employ as CFMEU shop stewards. Mr Van Camp interviewed the nominees who were not known to him and rejected them all as being unsuitable.

63    On 4 July 2012 the CFMEU called a State wide stoppage to protest against the State Government’s Construction Code. Workers on Grocon’s site worked as normal on that day. Mr Spernovasilis attended the Myer Emporium Site in an effort to encourage workers to leave and attend the rally. He told Mr Van Camp that “If the CFMEU had its own representatives then it wouldn’t be an issue because they would have stopped the project and have everybody attend.” Mr Van Camp responded: “Well, that’s the very reason why we don’t particularly want to have your nominations.”

64    On 9 July 2012 Mr Spernovasilis told Mr Van Camp: “You fucked it, it’s going to be taken out of my hands” and that “our relationship is up the shit.”

65    On 11 July 2012 a meeting was held at the Grocon head office between Messrs Grollo, Van Camp, Setka, Oliver and Spernovasilis. At the meeting Mr Oliver insisted that Grocon should engage a CFMEU nominated shop steward on every one of its Victorian jobs. Grocon was also advised that the CFMEU could not allow it to have employee representatives at the Myer Emporium Site who were not appointed by the CFMEU. Mr Spernovasilis said that the CFMEU would provide Grocon with a list of people to choose from and that “We want you to consider whether these employees or potential employees are suitable for employment by Grocon.” Mr Van Camp responded that “Grocon interviews people on a daily basis for roles within Grocon. If those individuals meet Grocon’s criteria and are suitable for roles within the business, Grocon has no hesitation in offering them work.” Mr Setka added that Grocon needed to engage someone from the CFMEU and that “I cannot stomach driving past the [McNab Site] near my home knowing that there is no CFMEU representative that I [have] nominated or the CFMEU nominated operating on that project.” Mr Oliver said that it was highly embarrassing for the CFMEU that Grocon employees had worked through the 4 July stoppage and that there had been a “mini riot” at the Trades Hall Council where people questioned the CFMEU’s ability to control the sites. Mr Van Camp said that “We always did say that our jobs would be open, we would work and we would actively encourage our employees and subcontractors to come to work.” At this point Mr Setka turned to Mr Oliver and said “I told you so” and that “We’ll just smash ‘em”.

66    In July 2012 Mr Van Camp rejected demands from Mr Setka and Mr Spernovasilis that CFMEU flags should be allowed to fly on Grocon cranes, that employees and sub-contractors should be allowed to wear union paraphernalia on their clothing and that CFMEU stickers should be placed on employees’ helmets.

67    At about this time Mr Spernovasilis nominated yet another potential employee. He was interviewed by Mr Van Camp. Mr Van Camp decided that the nominee was unsuitable and declined to offer him employment.

68    On 1 August 2012 Mr Reardon telephoned Mr Van Camp. Mr Reardon said that he had been to the McNab Site and had met Mr Mark McMahon. Mr Van Camp told Mr Reardon that Mr McMahon was Grocon’s employee representative at the site. Mr Reardon said that “Well, that’s contrary to the agreement we have” and that he was not happy with the election of Mr McMahon as the employee representative at the site. Mr Van Camp said that “There is no agreement and I determine the suitability of which individuals are employed by Grocon.” Mr Van Camp added that it was up to the Grocon employees on the project to select who they wished to represent their interests and that Mr McMahon was a suitable person to perform the role by reason of his past experience. Mr Reardon said that he was not happy and would report this to Mr Spernovasilis.

69    On the following day Mr Spernovasilis telephoned Mr Van Camp and advised that he had spoken to Mr Reardon and that Mr Reardon had told him about the election of Mr McMahon as employee representative. Mr Spernovasilis accused Mr Van Camp of orchestrating the election. Mr Van Camp denied this allegation and said that it was for employees on a project to determine who represents their interests. Mr Spernovasilis then said that “It’s out of my hands … it’s going to cause a problem.”

70    On 14 August 2012, Mr Spernovasilis and Mr Christopher met with Grocon employees at the Myer Emporium Site. Mr DeGiuisti and Mr Joe Brinzi were in an adjacent room and could overhear Mr Spernovasilis saying to the Grocon workers that the CFMEU and Grocon were in dispute over union shop stewards. Mr Spernovasilis said that Grocon was doing the wrong thing, they didn’t have the right representation for the workers’ wellbeing on the project and that “we should have our own people here that look after your – your wellbeing and your safety”.

71    Immediately after that meeting, Mr Spernovasilis had a brief discussion with Mr Joe Brinzi and Mr DeGiuisti. Mr Spernovasilis said that the CFMEU and Grocon were in dispute as they “had not reached agreement on placing union organised reps on the Emporium and other sites”. He also said to Mr Joe Brinzi: “You know what this is all about ... Joe, I've got orders”, that “[i]t's above me, and it's no doubt above you” and that if Grocon did not come to an agreement with the union about the shop steward issue that “you could have 100 employees walk through these projects as early as next week”.

FACTUAL FINDINGS – MYER EMPORIUM SITE

72    The main evidence relating to events at the Myer Emporium Site came from Messrs DeGiuisti, Smith and McAdam. Each of these witnesses gave oral evidence and was cross-examined. Each gave evidence confidently and did his best to give an accurate account of his observations and exchanges in the course of the dispute. Save for some minor qualifications to which I will refer, I accept their evidence and make findings accordingly. There was also a good deal of video evidence which recorded relevant events to which I have had regard.

Wednesday, 22 August 2012

73    At approximately 5:25 am on 22 August, Mr DeGiuisti observed 15 to 20 people gathered at the eastern entry to the gantry on Lonsdale Street. Messrs Spernovasilis and Theodorou (another CFMEU official) were part of the group. When Mr DeGiuisti approached Mr Spernovasilis, Mr Spernovasilis said words to the effect of “it's out of my hands, it's with John Van Camp”.

74    At 5:31 am, a barbecue was wheeled into the Little Bourke Street loading bay and a group of people began to set it up. It remained in the loading bay until late that afternoon.

75    At approximately 6.00 am, Mr Smith arrived at the Myer Emporium Site and saw approximately 100 men standing in Lonsdale Street near the gantry gates.

76    Mr DeGiuisti made a number of observations from approximately 6:20 am. Mr Reardon was present near the western gantry gate on Lonsdale Street. Mr Reardon filmed Mr Smith by holding his mobile phone inches from his face, and said words to the effect of “Come on are you going to hit me”. Mr DeGiuisti said that he held concerns for Mr Smith's safety given the amount of abuse being directed towards him and the number of people wearing CFMEU-branded clothing that were gathered at the site.

77    Mr DeGiuisti then walked around the perimeter of the Myer Emporium Site and saw that every gate and access point to the site was obstructed by groups of people wearing CFMEU clothing.

78    While walking around Mr DeGiuisti was handed a flyer entitled “Grocon's scabs named and shamed” which contained photographs of Mr Peter Hewett and Mr Daniel Van Camp and the words “Get rid of these scabs out of our industry. They will never be forgotten”.

79    At approximately 6:50 am, Mr Reardon and Mr Christopher addressed a group of Grocon employees who were gathered outside the State Library. At this time, Mr Reardon (accompanied by Mr Christopher) urged the employees to attend the barbecue that was being held in the Little Bourke Street loading bay and then to go home saying words to the effect of “you folks all ready to go down for a barbeque?” Mr Jason O'Hara then asked the group to walk to Grocon's head office in the QV building. They did so.

80    Mr McAdam had an office on the first floor of the QV Building. As already explained that building was on the north east corner of the intersection of Swanston and Lonsdale Streets. Windows at the front of the building commanded clear views of Gate 1 to the Myer Emporium Site which was located on the corner of Caledonian Lane and Lonsdale Street, a short distance down Lonsdale Street from the south west corner of the same intersection. At 7.10 am Mr McAdam looked out his window and saw approximately 50 people, most wearing CFMEU clothing, standing in and around Gate 1. From time to time during the day, he observed approximately 50 people gathered at strategic points around the site.

81    Because a substantial number of people had gathered at the access points to the Myer Emporium Site, Mr McAdam and other Grocon managers formed the view that the workers' health and safety would be put at risk were they to attempt to enter the site. Mr Van Camp and Mr Jason O'Hara spoke to Grocon's employees who were working on the project at a meeting in the QV building. They informed the employees that Grocon was concerned about their health and safety and that it was too risky for them to attempt to enter the site. The employees were sent home on full pay.

82    Shortly after this, Mr Van Camp and Mr O'Hara began a walk around the perimeter of the Myer Emporium Site. During this walk, Mr Van Camp observed groups of people wearing union-branded clothing located in the loading bays and at the access points to the site. Mr Van Camp also encountered Mr Martin Kingham, a former secretary of the Branch, who was standing with a group of people outside the site. Mr Kingham told Mr Van Camp that he didn’t really want to be there but that he had been instructed to attend the site.

83    At approximately 7:15 am, Mr Van Camp and Mr O'Hara walked towards the western entry to the Lonsdale Street gantry. As they did so, a group of approximately 12 to 15 people wearing CFMEU branded clothing stood in their path and prevented them from proceeding any further. Messrs Spernovasilis, Christopher and Theodorou stood in front of the Western gantry gate entry. The two men turned around and walked back towards Elizabeth Street.

84    A series of photos depicts groups of people (including Mr Reardon and Mr Spernovasilis), some wearing CFMEU-branded clothing, gathered outside both Gate 1 and the Western gantry entry to the site during the morning.

85    A most disturbing incident occurred near the site at approximately 2:00 pm that afternoon. It was described by Mr Smith in his oral evidence. When asked about the incident Mr Smith paused, appeared to compose himself, and then continued:

“Sorry. I’m fine. I’m sorry. I was walking up Little Bourke Road [sic] towards Swanston, and roundabout Albion Alley, John Setka and a tall – a tall guy with blonde hair that I had had interaction with at McNab Avenue and another two guys were coming from the opposition [sic] direction and they pushed me into the alley three or four metres, and with their shoulders they pinned me against the wall, and John Setka told me to – to leave. He told me to – to shut up. He swore at me repeatedly. I said to him – I asked him to – him and the men to step away. Kept telling me to – to shut up, and I said to him that, “You’re holding me against my will,” that, “This is a hostage situation.” He – he again told me to shut up and if I didn’t shut up that he would shut me up permanently. I took that as a personal threat on his part. They then turned their backs on me, tried to push me into the wall, each taking turns to – to do that, and I went quiet a short while later – about a minute or so later. They seemed to lose interest. I’ve stepped away about a metre or two ... and then a delivery van came in; because it’s such a narrow alley way we had to step out back onto Little Bourke Street, and there was only one guy and myself that stepped out on – on my side. The other three had to step out on – on the other side of the vehicle. Once you were out there I – I stay there for a couple of minutes to observe what is going on, and that’s when I saw that they had written on the hoarding of Grocon that Graham Smith f’s dogs, f-u-c-k-s dogs, and after that I just carried on with my duties.”

86    As he gave this evidence Mr Smith’s lower lip quivered and he visibly shook in the witness box as he recalled these events which had occurred some two years earlier.

87    During cross-examination it was put to Mr Smith that the events which he described had not occurred. He strongly rejected a series of suggestions to this effect. I accept, without reservation, that Mr Smith gave a truthful account of what had occurred.

88    At about 3:35 pm Mr Smith was standing near the corner of Caledonian Lane and Lonsdale Street. He was approached by one of the men who had been involved in the earlier incident in Albion Lane. That man walked around him a couple of times and then knocked Mr Smith’s helmet off his head. The helmet rolled into Lonsdale Street. The man abused Mr Smith, repeatedly calling him a “gutter rat” and “chicken runner”.

89    The Grocon CCTV footage confirms that a substantial number of people, some wearing CFMEU-branded clothing, continued to maintain a presence outside Gate 1 and the Little Bourke Street loading bay throughout the course of the day from about 5:00 am until approximately 4:15 pm.

90    Several senior CFMEU officials attended the site during the day. They included Messrs Spernovasilis, Reardon, Theodorou, Setka and Christopher.

91    Mr McAdam decided, in consultation with the other site managers, that they could not ask the Grocon employees or sub-contractors to attempt to enter the site because this would have required them to confront the blockaders and they considered that to be an unacceptable risk to their health and safety.

92    No scheduled works were carried out on that day.

Thursday, 23 August 2012

93    At 6:00 am, Mr DeGiuisti walked around the Myer Emporium Site and observed a number of people standing around the site entrances. They included Messrs Spernovasilis, Theodorou, Christopher and Reardon.

94    Mr Setka was seen by Mr DeGiuisti standing with others in the Little Bourke Street loading bay.

95    At approximately 6:30 am Mr McAdam saw about 50 people, many wearing CFMEU branded clothing, near Gate 1. He saw Mr Spernovasilis at Gate 1 at various times throughout the morning.

96    At about 12:30 pm, Mr McAdam did a walk around the boundaries of the site and observed several things. The crowd at Gate 1 was about the same size as it had been earlier. There were many CFMEU stickers on the crane parked near Gate 1 and on the hoardings of the pedestrian tunnel. There were people in CFMEU clothing standing around all access points and some of them were handing out red flyers, with the CFMEU logo on then. They read in part:

“Construction of the Myer Emporium has ground to a halt. …

•    .. .

•    Company heavies order workers to remove union stickers from their hard hats

•    Grocon interferes with the right of workers to choose their own union reps

•    Grocon wants to control when workers can talk to a union organiser

To make sure it gets its way, Grocon employs a team of enforcers, headed up by a former nightclub security bouncer Peter Hewett.

…

It will be a long time before shoppers enjoy the new Myer Emporium unless Grocon changes its ways.”

97    There was a crowd of 40-50 people standing in front of Gate 1. There were CFMEU flags erected in the loading bay and there was a barbecue in progress there. A substantial number of people, some wearing CFMEU-branded clothing, continued to maintain a presence outside Gate 1 and the Little Bourke Street loading bay where they remained until approximately 3:30 pm.

98    Several senior CFMEU officials attended the site during the day. They included Messrs Spernovasilis, Setka, Theodorou, Reardon and Christopher.

99    Employees of Grocon did not attempt to enter the site. Again, Mr McAdam and the other site managers decided that, because of the substantial presence of picketers gathered in front of the access points, they could not guarantee the safety of Grocon’s employees and sub-contractors if they attempted to enter the site. They informed the Grocon employees that they would not be required to attend for work until otherwise notified and that Grocon management would be considering options to reallocate them to other projects.

100    No scheduled works were undertaken on this day.

101    On or around 23 August 2012, the CFMEU published on its website an article entitled “Attention workers on Grocon sites: After Grollo's childish behaviour sinks talks…It ain't over”. The article stated that:

“Issues in dispute

Grocon's refusal to:

- Respect your right to proper representation on safety and workplace matters

- Respect your right to be a union member and proudly identify with your union”.

Friday, 24 August 2012

102    At about 6:50 am on Friday 24 August, Mr McAdam observed about 40 people standing around Gate 1.

103    After 7:00 am, during a walk around the perimeter of the Myer Emporium Site with Mr O'Hara and Mr McAdam, Mr Van Camp also observed large numbers of individuals wearing CFMEU-branded clothing, none of whom appeared to be Grocon employees or employees from sub-contractors engaged by Grocon.

104    Grocon management again determined that, for health and safety reasons, it would not request its employees and those of contractors to enter the site.

105    No scheduled work was undertaken on that day.

106    On 24 August 2012, Mr Daniel Grollo wrote to the Chief Commissioner of Victoria Police. He sought the assistance of police to facilitate access of employees and contractors to Grocon’s Victorian sites.

Saturday, 25 August 2012

107    At about 8:15 am on this day Mr McAdam drove down Little Bourke Street. Near the corner of Caledonian Lane he saw four people wearing CFMEU branded clothing standing in the loading bay. He drove up Lonsdale Street and observed about 12 persons wearing CFMEU branded clothing standing in front of Gate 1. He then went into the Grocon office. By the time he left, at about 4:20 pm, the persons whom he had earlier observed standing in front of Gate 1 were no longer there.

Monday, 27 August 2012

108    From about 6:10am, approximately 10 people gathered in the loading bay and began to set up the barbecue. A group of people wearing CFMEU-branded clothing, including Messrs Reardon, Johnston, Stephenson and Spernovasilis, occupied the loading bay in the morning.

109    At about 6:30 am on this day Mr McAdam saw 50 to 60 persons standing in front of and near Gate 1. Most were wearing CFMEU branded clothing.

110    From time to time during the morning he looked out the Grocon office window and, on each occasion, he saw approximately 50 to 60 persons in front of Gate 1 or standing or seated nearby. At about 9:00 am he arranged for some administrative and managerial staff to proceed from Grocon’s headquarters to the site office. They wore civilian clothes and were not identifiable as Grocon workers. They gained access to the site offices through the gantry door on Lonsdale Street.

111    Between about 1:00 pm and 1:30 pm Mr McAdam walked around the perimeter of the site. He described what he saw in his affidavit as follows:

“(a)    I saw approximately 60 persons standing in front of Gate 1, in Caledonian Lane and along the north wall of McDonalds on Lonsdale Street, the majority of whom were wearing CFMEU branded clothing.

(b)    I walked through the crowd along Lonsdale Street. This was difficult due to the large volume of people walking in both directions along the footpath in front of Gate 1. I proceeded through the pedestrian tunnel of the gantry and observed approximately 8 people standing in the vicinity of the pedestrian tunnel entrance to the Western end of the Emporium Site. All these persons were wearing CFMEU branded clothing.

(c)    I walked through the arcade on Lonsdale Street and saw approximately 2 or 3 other persons in the arcade and approximately 4 other persons in the café within the arcade, all of whom were wearing CFMEU branded clothing.

(d)    I proceeded through Driver Lane and saw that there were 4 persons sitting in the bar on the north end of Driver Lane. These persons were seated outside in front of the bar entrance and were all wearing CFMEU branded clothing.

(e)    I proceeded to Little Bourke Street and observed that approximately 12 persons were standing outside the ‘Break Free’ hotel entrance and along the western edge of the Emporium Site gate. The majority of these persons were wearing CFMEU branded clothing.

(f)    I crossed over Little Bourke Street to the opposite side of the Emporium Site and proceeded in an easterly direction. As I was walking along Little Bourke Street I observed a group of approximately 16 to 20 people in the alcove along the gantry, as well as a further 20 people within the loading bay on Little Bourke Street, the majority of whom were wearing CFMEU branded clothing. I also saw approximately 6 – 8 people opposite Caledonian Lane standing in the pedestrian entrance to the Mercure Welcome Hotel, the majority of whom were wearing CFMEU branded clothing.”

112    He confirmed this evidence in oral submissions and his account was not challenged.

113    In the mid-afternoon, Mr Carlo Porco (who was accompanied by Mr Joe Brinzi) was prevented from driving a Grocon truck into the loading zone by men, some wearing CFMEU-branded clothing, who were standing in Little Bourke Street.

114    A substantial number of people, some wearing CFMEU-branded clothing, maintained a presence outside Gate 1 and the Little Bourke Street loading bay throughout the course of the day from about 5:45 am until approximately 3:30 pm.

115    Several senior CFMEU officials attended at the site during the day, including Messrs Spernovasilis, Setka, Reardon and Christopher.

116    Employees of Grocon did not attempt to enter the Myer Emporium Site on this day.

Tuesday, 28 August 2012

117    On this morning an attempt was made by some Grocon employees to enter the site with the assistance of police officers.

118    Grocon employees, who would normally have commenced work at the Myer Emporium Site at about 7:00 am, gathered instead in a meeting room in the company headquarters. The meeting was addressed by Mr Van Camp and Mr O’Hara. They asked for volunteers to walk across the intersection and enter the site. About five workers volunteered. Three were selected. They proceeded downstairs with Mr Van Camp. The others remained in the conference room.

119    At about 6:30 am, the crowd outside Gate 1 numbered about 100. The crowd was spread along the southern footpath and western-bound bus lane of Lonsdale Street, up to the McDonalds outlet at the south western corner of the intersection of Lonsdale and Swanston Streets. A large number of police, some mounted, had assembled at the eastern side of the intersection.

120    Mr Edwards addressed the crowd with a megaphone, saying:

“If you recognise any of the Grocon employees, you know them, get personal, up close and personal with them right.

We need a few more down this end boys…We need a solid bloody wall. Up the corner is no good, come on down this end boys, this is the way.

If you’ve got a mobile phone and you think there’s someone who’s missing all the fun, give 'em a last ring, anyone you think is missing out on this. Give 'em a ring and tell 'em they’ve got 10 minutes to get down here. Just park in the street, it won’t matter much.

Boys let’s get it backed up here. C'mon down the road here boys, down the road, nice and tight here”.

121    At about the same time a group of men had formed near the corner of Little Bourke Street and Caledonian Lane. They moved large “wheelie” bins onto the carriage way of Little Bourke Street between the entrance to Caledonian Lane and the loading bay. Shortly afterwards shopping trolleys were also moved onto the carriage way. These obstructions prevented traffic moving down Little Bourke Street. Among the group of men in Little Bourke Street was Mr Danny Berardi who was an organiser employed by the CFMEU.

122    At 6:45 am, Mr McAdam was observing events through the Grocon office window. By this time, the crowd had swelled to around 300 people. It grew rapidly. He saw that Mr Van Camp and the volunteers had gone down to the intersection. The volunteers waited at the north east corner while Mr Van Camp proceeded into the intersection and met Mr Reardon, Mr Setka and Mr Spernovasilis. Detective Inspector Jackson was with them. Mr Van Camp and Mr Reardon had the following conversation:

“Van Camp:    ‘We want to come in peacefully.’

Reardon:    ‘You hire nightclub bouncers and you want to come in peacefully’… ‘These people aren't even construction workers John. Why do you have to outsource all of this security’.

….

Van Camp:    ‘I've asked you a question, can we come in and work.’

Reardon:    ‘You know the answer.’

….

Van Camp:    ‘Can we simply go to work.’

Police officer Bernie Jackson to Reardon: ‘You're not going to let them in?’

Reardon:     ‘No’ (Reardon shakes his head to one side as he says ‘No’).”

123    The crowd by this stage had grown to about 500 people. Concerned at this development, and to ensure that they would be able to walk to the site quickly, had the police been able to facilitate their entry, Mr McAdam and about 90 Grocon staff and workers came down to the street level on the north east corner of the intersection, outside the breezeway entrance to the QV building, to stand with the volunteers. The crowd was facing them and chanting and shouting.

124    At about 7:00 am, the police line began to advance from the intersection in a westerly direction down Lonsdale Street in an attempt to open a safe passage for the Grocon employees to enter their workplace.

125    At the same time, about 50 police officers made their way from Little Bourke Street up Caledonian Lane towards Gate 1. When the police started to move up Caledonian Lane, Mr Berardi gave directions to the crowd gathered in Little Bourke Street to follow them up the lane. They did so.

126    As the police line advanced down Lonsdale Street Mr Edwards yelled directions to the crowd through a megaphone. He is seen on video saying: “Here we go boys, come on, pack it up, pack it up, here they come.” The crowd held its ground and pushed back against the police line. Mr Reardon was in the crowd. Scuffles occurred and some punches were thrown at police horses. At various times Mr Edwards shouted “hold your ground”. Mr Setka was located immediately behind the group which was pushing back against the police horses and can be seen shouting encouragement to them. The police were unable to open a path for the workers.

127    The video footage shows Mr Stephenson and Mr Johnston were present in the crowd during these events.

128    Shortly afterwards Mr Setka crossed Swanston Street and approached the Grocon employees who were standing in the breezeway on the north east corner of the intersection. Mr Setka told the employees: “you should be over with us this is where it is.” One of the employees responded: “This is not our blue, we just want to go to work. Let us go to work.” Mr Setka called the employees “fucking dogs”, “rats” and used other pejorative terms. A senior sergeant of police then advised Mr Van Camp to take the employees back into the building in order to defuse the situation. The Grocon employees complied with this request.

129    Not long afterwards Mr Edwards again addressed the crowd using a megaphone. He is recorded as saying:

“The police would be wise to reconsider their tactics.” (Edwards said this while linking arms with one of the other group members).

“Congratulations boys we've done a top job.”

“We might have all this fun again tomorrow boys and girls.”

130    Mr Edwards pointed towards the Grocon Office and said:

“If you look, if you look across the QV, look across the QV…those orange bloody jackets there …folks there's a couple hundred of them, how many do you reckon's in there [ie, in the Site], not too bloody many.”

131    Mr Christopher also addressed the crowd on the megaphone and asked them not to go away but to stand around and “be ready”. He also said:

“We ask you to please stick around and hold the line. Don’t jump off for a coffee, because the minute they see that we’re gonna lose our numbers, the minute they’re gonna come back. The enemy will be back. And we must be stand and [sic] ready. This is our day, this is our game and our industry, not theirs. We don’t give it over to nobody…”.

“Fellas, just your attention for a second please. There’s been an SMS that’s gone out to most mobile phones about holding the line and no more numbers. Alright, that is not a message for us to take off. Like I said, we want to be able to still hold the line because we don’t know what the enemy is going to be doing. So until further notice stick around and hold the line shoulder to shoulder…”.

132    At some time between 8:00 and 8:30 am, Mr Edwards spoke to the crowd again, saying:

“So what we’re going to do now, the peaceful co-operative people that we are, even when we are being pushed by the riot squad, even when we were getting pushed by the horses, we’ve kept calm, we’re going to be calm again, we’re gonna go back to work, right we’re going back to work. But those that are on the picket line stay on the picket line, right. What we want you to do is go back to your jobs, remind your boss that all this grief has been caused by their good friend Daniel Grollo. We didn’t ask for this blue, he did. He’s involving everyone in it because this is about the industry, and what we do in this industry. We are creatures of this industry he’s not, he’s some little rich boy that would rather live in New York. So folks, the fight is gonna go on, it’s got a long way to go yet. There’s court cases, there's all sorts of shit, but you won this battle this morning. The police are withdrawn, right”.

133    The crowd cheered and clapped. Mr Edwards continued:

“Congratulations you deserve a pat on the back, as you have done the union an absolute treat….”

134    At approximately 9:05 am, Mr Oliver stood near the site fence and addressed media representatives. Messrs Setka, Reardon and Spernovasilis stood next to him. Mr Oliver said:

“We have been down here now for 7 days”

and

“What we’re seeing here is Daniel Grollo’s industrial relations. This is what he wants for every Victorian construction worker – violence and thuggery on building sites.”

135    Most of the crowd had dispersed by about 9:15 am. About 100-200 remained outside Gate 1. At around this time, a reporter from ABC’s Lateline program spoke to Mr Edwards near the intersection of Lonsdale Street and Caledonian Lane. Mr Edwards said:

“No no I'm not doing any [media interviews]. The media manager is Liz Lukin from EMC. I'm just organising what's happening here.”

136    A barbecue breakfast was prepared by some of the group in the Little Bourke Street loading bay area.

137    The access points to the site were blocked by substantial numbers of men for the rest of the day. During the day, Mr Oliver also caused to be published on the CFMEU website an article regarding the Grocon dispute which included the following statement:

“Last night we said we were willing to accept the recommendation of the President of Fair Work Australia that we lift our picketing of Grocon” and “We would have come down here this morning and advised our members to stand down so talks could proceed.”

Wednesday, 29 August 2012

138    From early morning until mid-afternoon on this day, substantial crowds of people, many of whom were wearing CFMEU-branded clothing, congregated around the access points to the Myer Emporium Site, including Gate 1 and in the Little Bourke Street loading bay. Between approximately 5:00 am and 8:00 am, hundreds of people spread across the width of Lonsdale Street. Thereafter numbers fell away but a substantial number of people, one of whom was Mr Setka, some wearing CFMEU-branded clothing, continued to maintain a presence outside Gate 1, and others were gathered in the Little Bourke Street loading bay. They remained until approximately 1:15 pm.

139    On this day Messrs Setka, Reardon, Spernovasilis, Oliver and Edwards were present near access points to the site at various times.

140    CFMEU flags were attached to the site fencing and gantry. Barbecues were placed in close proximity to site access points.

141    While at the site, Mr Oliver was questioned by media representatives. In response to one of the questions he said:

“Well I don’t know if we have an issue with Daniel Grollo. I think Daniel Grollo has an issue with us. He refused to accept that the unions have a right to be on his construction site. He refused to accept that workers can wear a CFMEU sticker on their hard hat or on their windcheaters or on their jackets. He doesn’t want any recognition of union on the jobs. As I said yesterday when he was doing his interviews he's made it perfectly clear it’s all about control. It’s all about Daniel Grollo controlling his sites, and workers not allowed to be represented by the trade union on his jobs”.

Thursday, 30 August 2012

142    A substantial number of people, some wearing CFMEU-branded clothing, maintained a presence outside Gate 1 and the Little Bourke Street loading bay throughout the course of the day from about 5:00 am until approximately 3:00 pm. Numbers fluctuated with a greater number in attendance early in the morning than later in the day.

143    Mr Setka attended the site at various times during the morning. At times he stood with groups in the Little Bourke Street loading bay and in front of Gate 1.

144    Throughout the morning, Mr Reardon was located at various points in and around the crowd blocking Gate 1 and was also part of the crowd blocking the path through to Gate 1, Caledonian Lane and the pedestrian tunnel.

145    During the morning, Mr Christopher used a loud hailer to address the crowd gathered outside the site. He encouraged those present to continue to “keep turning up”.

146    At approximately 7:50 am Mr Spernovasilis pushed a shopping trolley full of food and other produce across Lonsdale Street in the direction of the site.

147    Later that day, Mr Oliver spoke to the media in the foyer of the Fair Work Australia building in Melbourne and said:

“… we want health and safety reps and shop stewards on the job that the men are comfortable with. We want we want (sic) the union to be recognised on this site, we want union apparel”.

Friday, 31 August 2012

148    On this day Victoria Police adopted different tactics in an effort to facilitate access to the site by Grocon employees.

149    In the small hours of the morning they arranged for temporary fencing to be erected at various points around the site and took up positions behind those barriers.

150    Grocon asked its employees to meet away from the site. They were then transported by bus into the Bourke Street Mall. From there they walked up a lane to Little Bourke Street and then along Little Bourke Street and into Caledonian Lane. This was possible because the police had erected fencing in the Mall and at two points in Little Bourke Street, one to the west of the laneway and the other to the east of Caledonian Lane.

151    Men, many wearing clothing emblazoned with CFMEU logos, had gathered behind the security fencing at various points along the route. As the workers walked past these barricades they were subjected to vitriolic abuse. Words such as “scum” and “scabs” were directed at them. Mr Reardon was behind one of the fences and appeared to Mr McAdam to be taking film on his mobile phone of some of the workers. The workers reacted by shielding their faces.

152    Once on the site the workers proceeded to the sheds on the gantry over Lonsdale Street. Further abuse was directed at them from below on the Lonsdale Street footpath. Accusations such as: “Scabs, you’re taking our jobs”, “you’ve fucking got to die” and “you’re a fucking bastard” were heard. Mr Brinzi sensed that this abuse was unsettling the employees and directed them to stay in the “smoko” shed area of the gantry.

153    Another group of protesters assembled in a car park overlooking the site and yelled at the employees from that vantage point. As a result, Mr DeGiuisti and the site manager directed the employees to perform clean-up work in the basement area where they were out of sight of those hurling abuse.

154    From early morning until mid-afternoon, crowds of people, many of whom were wearing CFMEU-branded clothing, congregated around the temporary fencing on Lonsdale Street. At times, the crowd spread across the width of Lonsdale Street and spilled into Swanston Street. During the morning, a barbecue was moved into one of the westbound traffic lanes of Lonsdale Street near the temporary fencing adjacent to Gate 1. At approximately 9.20 am, Mr Spernovasilis carried bags of bread and other produce along Lonsdale Street to the barbecue.

155    Between approximately 6:00 am and 8:00 am, Mr Edwards addressed the crowd using a loud hailer and said various things including the following:

“What we’re here for is to lay siege to Grocon’s job that they’re doing for Colonial First State. Lay siege to it, we’ve been doing it for a week, we’re going to continue to do it”;

“But folks we ain’t going away. We’ve never gone away and even when they reckon they’ve got rid of us we keep coming back”;

“We are here to show that we have got strength. We are here to show that we are disciplined. We are here to show that we are here to stay";

“There ain’t bloody gonna be no bloody work done on that job today”;

“You good people have done yourselves an absolute treat. Absolute treat, because you’re still coming, look at them still coming up the hill. And by 11 o’clock we’ll be officially rained off”.

156    At approximately 7:00 am, Mr Oliver made the following comments to reporters while standing near Lonsdale Street:

“Well, what’s happened this morning here is this was an organised situation by Daniel Grollo to try and cause confrontation. You can see what has happened this morning it is peaceful. What we do understand is that the construction workers refused to get on the bus. Who we actually believe got on site were management and supervision. About 20 or 30 went on the job”.

…

“The senior members of the union were here. We didn’t want confrontation which what happened on Tuesday [sic]. That’s not what this blue is all about”.

…

A journalist asked: “Just remind us what is the main sticking point here again?”

Mr Oliver responded: “The sticking point here is fairly simple. [Mr Oliver pointed to a CFMEU logo on his jacket] You can’t wear that on a Grocon job. The men can’t be represented by their own shop stewards and safety rep”;

A journalist asked: “How long is this going to last Bill?”

Mr Oliver responded: “This will last as long as it takes [Mr Oliver nodded his head towards the Myer Emporium Site] That building site’s got a long way to go. We’re here for the long haul. Trade unions are here for long haul [sic]. This is not finished yet.”

…

“Today panned out that it was successful for the unions. It was a good show of discipline. There was a fear of the incident that took place the other day. That was never intention [sic] of the union or any unions down here. It was certainly the intention of Daniel Grollo and Ted Baillieu”;

“But our members were disciplined, that’s what we’re all about, we’re about peaceful demonstrations to get our message across.”;

A journalist asked: “Does the union take any responsibility for them feeling too intimidated to come to work?”;

Mr Oliver responded: “Not at all, not at all, the workers want to come to work in a good working environment. They want to go in to work with shop stewards and safety reps that they can go and speak to. They want union involvement on the construction sites”;

“We have been in liaison with the police from early this morning. We made it very clear to the police that we would not let this get out of hand. Our members were disciplined as you could see.”

157    In the course of the afternoon the police arranged for the temporary fencing to be removed and the police officers withdrew. When this occurred members of the crowd which had been gathered outside the fencing moved, at the direction of Mr Spernovasilis, to positions adjacent to Gate 1.

158    Mr Setka attended the site at various times during the morning in company with other officials including Messrs Oliver, Reardon and Spernovasilis. Mr Johnston was also present.

159    The CFMEU published on its website an article entitled “Workers' mutiny rains on Grocon's parade” which included the following statements:

“The dispute arose because Grocon does not recognise the right of workers to be represented by their union. Grocon does not recognise union and safety reps and does not allow workers to sport CFMEU logos on their clothes or hard hats.

To enforce its anti-union strategy the company employs a team of heavies, headed by a former nightclub bouncer and state heavyweight boxing champion. The only safety rep the company recognises is the son of the human resources manager.”

Tuesday, 4 September 2012

160    Early on this day temporary fencing was again erected around the site and police took up positions behind the fencing. Again, the Grocon workers had met offsite and had been bussed to the Bourke Street Mall.

161    When the workers alighted from the buses Mr Reardon was again present and appeared to be using his mobile phone to film workers. As Mr Joe Brinzi walked past him Mr Reardon said: “[y]ou fucked up Brinzi, you’re going to cop it.”

162    The employees followed the same route to the site which they had used on 31 August 2012. As they reached the end of the lane at Little Bourke Street they were subject to threats from persons gathered behind the fencing. Amongst things which were heard were “I am going to kill your family” and “you are going to fucking die”. Video footage was taken of those making the threats. They presented in a very agitated and aggressive manner.

163    Once the workers had entered the site they were subject to further abuse from members of the crowd standing in Lonsdale Street which included Messrs Setka, Spernovasilis and other officials of the CFMEU.

164    From early morning until mid-afternoon, crowds of people, many of whom were wearing CFMEU-branded clothing and waving CFMEU flags, congregated around the temporary fencing that had been erected on Lonsdale Street and Little Bourke Street. At times, the crowd spread across the full width of Lonsdale Street. A barbecue was moved into one of the westbound traffic lanes of Lonsdale Street near the temporary fencing adjacent to Gate 1. At various times during the day Mr Edwards addressed the crowd, using a loud hailer. At one point he said:

“Right oh blokes are heading back to work slowly and slowly but again tomorrow back here bright and early”.

165    Early that morning, Mr Spernovasilis walked along Lonsdale Street with a loud hailer giving instructions to the crowd that had congregated on the road near the western boundary of the site.

166    At various times during the day, Messrs Edwards, Spernovasilis, Stephenson, Setka, Reardon Johnston and Oliver were present at or around the Myer Emporium Site.

Wednesday, 5 September and Thursday, 6 September 2012

167    There remained a substantial presence of people, some in CFMEU branded clothing, outside the Gate 1 and Little Bourke Street loading bay access points to the site on both of these days. This presence continued until the dispute was resolved in the afternoon/evening of 6 September 2012.

168    From time to time during the course of the day on 6 September 2012, Mr Edwards attended the vicinity of the Myer Emporium Site and used a microphone to address the crowd gathered at the site.

169    There was “very little” productive work undertaken at the site on these days. Unimpeded access to the usual pedestrian entry and loading points was not available until 7 September 2012.

Numbers

170    The number of persons involved in the blockade of the Myer Emporium Site, between 22 August and 6 September 2012 varied from day to day and fluctuated from time to time during each day. On week days the numbers tended to be greater between 6:00 am and about 8:00 am than they were later in the day. Workers from other building sites around the city attended on their way to work and then drifted off to their own sites between 7:00 am and 8:00 am. A hard core group, however, remained each day. On days such as 28 August and 31 August 2012 the presence of larger numbers continued until later in the morning.

171    The respondents sought to suggest that, in these circumstances, Grocon management had “made little or no attempt to limit the impact of the protests upon the work at the ….. site”. They thereby implied that Grocon could and should have made attempts to breach the blockade later in the working days. Such a suggestion is disingenuous. The CFMEU retained a presence at Gate 1 and the loading bay throughout the day and had demonstrated a capacity and intention to supplement numbers were any attempt to be made by Grocon workers to enter the site and perform productive work.

172    So much was conveyed by public statements of officials and in addresses to the crowds gathered at the site. Such statements have been recorded earlier in these reasons. They include the following. On the morning of 28 August 2012 Mr Edwards encouraged those present to use their mobile phones to tell others that they had “got 10 minutes to get down here”. On 31 August 2012 he told the crowd that: “There aren’t going to be no bloody work done on that job today.” On 28 August 2012, Mr Christopher urged those present to “stick around and hold the line”. This was because if Grocon saw that ‘we are going to lose our numbers, the minute they’re going to come back.” He added that:

“There has been an SMS that has gone out to most mobile phones about holding the line and no more numbers. Alright, that is not a message for us to take off. Like I said, we want to be able to still hold the line because we don’t know what the enemy is going to be doing. So until further notice stick around and hold the line shoulder to shoulder …”

It is evident from these and other statements that the CFMEU had in place a communications network with its members which could have been used to summon additional numbers to the site at short notice had any attempt been made, by Grocon employees, to enter the site later in the days on which the blockade was imposed. Moreover, its intention, as Mr Edwards told those blockading the site on 31 August 2012, was to make sure that no work was done on the site during the working day.

173    It is also to be remembered that access to the loading bay was blocked, throughout most of the period, by a barbecue trailer and other paraphernalia introduced by officials and members of the CFMEU.

174    Despite the variation in numbers the blockade was, at all relevant times, a practical impediment to workers employed by Grocon and its contractors entering the site.

FACTUAL FINDINGS – MCNAB SITE

175    The principal evidence given in relation to events at this site was given by Messrs Andrew Brinzi, Joe Brinzi, Jamie Rigg and Graham Smith. Each of these witnesses gave evidence confidently and impressed me as being reliable. Subject to some exceptions, which will be dealt with later in these reasons, I accept their evidence upon which most of the following findings are based.

Thursday, 16 August 2012

176    On this day Mr Andrew Brinzi was standing in McNab Avenue when Mr Reardon drove down the road in a vehicle. As he reached Mr Brinzi he stopped and said, through the window, “I’ll be back with a barbeque.”

Friday, 17 August 2012

177    Mr Reardon was at the McNab site at 6.00 am. A semi-trailer arrived carrying tower crane parts. The video footage shows Mr Reardon moving to the middle of the roadway on McNab Avenue and directly in the path of the vehicle, causing it to stop. He then mounted the step next to the driver’s door and spoke to the driver. Shortly afterwards he returned to his former position standing on the road directly in front of the vehicle. Mr Reardon was observed at this point making a number of calls on his mobile phone and heard by Mr Smith to say: “We need you guys here. Arrange for the boys to come.”

178    Mr Smith told Mr Reardon to “Remove yourself from the road”. Mr Reardon responded by saying: “You have done your job. Call the police. It is for the police to now deal with it.”

179    Around this time, Mr Reardon filmed Mr Rigg while he was standing outside Gate 1 of the site. Shortly thereafter, he filmed Mr Andrew Brinzi and other workers as they drove into the site in a mini bus.

180    At approximately 6:20 am, Mr Joe Brinzi asked Mr Reardon to move out of the way of the truck. He did not move away.

181    While at the site that morning, Mr Reardon also took photographs of Mr Peter Hewett (a Grocon occupational health and safety representative).

182    During the morning, various officials of the CFMEU including Messrs Setka, Reardon, Theodorou and Spernovasilis arrived at the site. At least 15-20 people were present throughout the day. This number increased at times. Those present stood on the road in the path of any vehicle that proceeded down McNab Avenue. Most were wearing CFMEU apparel.

183    Some of the men set up a large tent on McNab Avenue. Initially, they tied this tent to the front of the prime mover of the semi-trailer. Later in the morning, they moved the tent to the other side of the road and wheeled in a barbecue and other equipment. This obstruction continued until approximately 3:00-3:30 pm. Mr Reardon was there throughout.

184    During the morning Mr Setka called Mr Graham Smith a “dog” and a “gutter rat”.

185    Late in the morning, at about 11:30 am, the prime mover was un-coupled from the trailer and was driven away. Not long afterwards, at around 11:45 am, Mr Andrew Brinzi drove a mini bus containing one other worker out of the site through gate 2 and started to drive up McNab Avenue towards the roundabout. In evidence in chief Mr Brinzi gave the following account of what then occurred:

“So you stopped at that point [on McNab Avenue – near Gate 1]. What happened at that point? - Then that point, then anyone on the right-hand side – well, not everybody, but most of them – they surrounded the whole van, right in front of the whole windscreen, my passenger windows, on the sides, they were all surrounded. And they were so close to the van that I couldn’t see through my mirrors. So at this point I didn’t know what to do. They were – they were calling me – they were calling – they were calling me a lot of names under the sun. You know, Setka was saying to me, you know, “You’re a dog. You’re a scab,” you know, the c-words. And so they – some guys were punching the windscreen. I saw Setka punch the windscreen because I was really focusing on John Setka at the time. Theo came on the side of where – my driver’s side and he was nodding his head. He didn’t say much to me, but everybody else was just yelling and screaming. They had their shoulders against the van and the window and – and actually the van was shaking left to right. And at that time there I was – I was waiting for the police to – to take control of the situation and I didn’t see the police come at all because the van was surrounded. I put on my reverse lights on, just letting people know I’m trying to get out of there, trying to back up. And so because I couldn’t see from my windows, I had to look over my shoulder and notice nobody was behind me, so I started backing up slowly, slowly. So I got in line where that – where the police van is. I saw John – while I was back and before I came to a stop, John Setka said the words, “I hope you die of your cancer.” I had cancer at the time. And then from there I froze. So I stopped there. I didn’t know what to do. It really shocked me. The – my passenger was telling me, “Andrew, it’s okay. Just back up. Back up. It’s okay,” you know, “We will get inside. We will have a glass of water.” You know, I was – I was that stressed out and nervous over it. And the police officer came to my window and he said, “You better back up – go on to site, because they don’t want to let you through.” So I started backing up slowly. When I got to around about where that security car – Monjon car on the left-hand side of that white car, I’ve noticed Reardon and Setka come up to me. And they were walking – just their body language – I thought they were going to do something silly, which then John Setka was absolutely – he was saying to me, you know, “Don’t forget my face. I will come after you,” you know, and then again he repeated the words, you know, “I hope you die from your cancer.” And then so I was waiting for gate 2 to open up so I can drive into gate 2, but once the gates opened up, I drove straight in and they closed the gates behind me.”

“Theo” was identified as Mr Theo Theodorou.

186    Mr Smith also gave evidence about this incident. He had opened the gate to let the mini bus out of the site. He observed that it only progressed a short distance down McNab Avenue. At this time, a few of the men standing in McNab Avenue, some of whom wore CFMEU-branded clothing, came up to the mini bus and blocked its path. They shouted and yelled at the two people inside the mini bus. The mini bus reversed and then drove back into the McNab Site. As it drove past Mr Smith, he could see that there was “no colour” in the face of one of the Grocon employees in the bus. Under cross-examination Mr Smith confirmed that he made his observations from the footpath in McNab Avenue near Gate 1. He had not seen anyone punching or rocking the mini bus after it had been blocked from moving down the road.

187    From a vantage point some 200 metres away on the footbridge, Inspector Caruana took photos of the mini bus approaching the group of men on McNab Avenue and of the mini bus reversing back up McNab Avenue after this incident occurred. There is a gap of over two minutes within this sequence of photographs in the period during which these events were unfolding.

188    Video footage taken by Inspector Alfred, from the footbridge, and Grocon CCTV footage captures some parts of the incident including the bus leaving Gate 2 and Messrs Reardon and Setka approaching as it reversed up McNab Avenue and pointing at the passengers in the vehicle. These videos do not show the bus being surrounded or struck by anyone.

189    In their defences Mr Setka and Mr Reardon both denied having shaken the mini bus or punched its windscreen.

190    Messrs Reardon and Setka submitted that Mr Brinzi’s version of events was grossly exaggerated, was contradicted by “the overwhelming weight of the evidence” and should not be accepted. In particular, they relied on Mr Smith’s evidence that he had not seen anyone shaking or rocking the bus. They also noted that none of the inspectors observed any such action and that still photographs and video footage taken by them from the footbridge did not show the mini bus being struck or rocked. Furthermore, the passenger in Mr Brinzi’s vehicle was not called to give evidence and support Mr Brinzi’s account. Nor were three other security guards who were working with Mr Smith at the site at the time of the incident or any of the police officers who were present.

191    In seeking to resolve these conflicting accounts I have paid careful attention to the video footage taken by Inspector Alfred and the still photographs taken by Inspector Caruana of events which occurred between the time the mini bus left Gate 2 and when it returned and drove back through the gate into the site. The video is taken looking along McNab Avenue towards the Napier Street intersection. It depicts the prime mover driving up McNab Avenue, executing a u-turn and then proceeding down the road towards the Napier Street intersection. It then stops. The building site is to the left and there is an embankment to the right. Footpaths run along both sides of the road. On the right hand side of the road between Gates 2 and 1, but closer to Gate 1, a silver and blue police van is parked. A tent can be seen on the same side of the road beyond the police van. It is partly on the roadway and partly on the footpath. The road is narrow. Past it, on the other side of the road, near Gate 1, photographs show the trailer. Had the trailer been parked adjacent to the police van and the tent it would not have been possible for a vehicle, the size of the mini bus, to have passed between them.

192    The still photographs show the mini bus emerging from Gate 2 and turning left towards the intersection. Almost immediately it crosses to the right hand side of the road so that it can pass a sedan car with the security company’s logo on it which is parked adjacent to the left side kerb. Once past the sedan the bus crosses back to the left hand side of the road as it comes abreast of the police van. At this point it is facing the trailer. If it is to proceed further down the road it would be necessary for it to pass through a gap between the trailer on the left hand side of the road and the tent on the right. At this point the photographs show a group of men and some police officers in that gap. The bus appears to be stationery. Men can be seen standing in front of the bus and on the driver’s side towards the front. Others are congregated on the roadway in the gap between the trailer and the tent. A police officer can be seen standing back short a distance from the driver’s window. The bus then reverses. As it approaches the security vehicle it moves to the right hand side of the roadway and continues along the roadway towards the bridge. At this point filming recommences. The video and the still photos show a policeman approaching the vehicle. It stops. A short conversation between the policeman and the driver appears to ensue. The policeman leaves and the bus moves further back. As it does so it is approached by two men, identified by witnesses as Messrs Reardon and Setka. They appear to be speaking to the driver. It then turns through the gateway and disappears.

193    I was impressed by Mr Brinzi as a witness. He appeared to have no difficulty recalling the incident. He had clearly been affected by it and demonstrated some controlled emotion as he recounted what had occurred. I accept the substance of his evidence but not all of the detail.

194    The progress of the bus down McNab Avenue was interrupted by Mr Theodoro who was quickly joined by others including Messrs Reardon and Setka. They blocked the gap between the trailer and the tent. Some also moved to the front and driver’s side of the vehicle. The vehicle was not, however, at any time fully surrounded. The presence of some men close to the driver’s side door would have prevented Mr Brinzi looking at the external rear view mirror on the driver’s side but he would have had an unobscured view to the rear from the internal rear view mirror. I accept that some of the men outside the vehicle may have lent on it and caused a minor rocking sensation. There is, however, nothing to suggest that any violent movement of the vehicle occurred. I accept Mr Brinzi’s evidence about the use of foul and abusive language by Mr Setka and others in the group. I also accept Mr Brinzi’s evidence about Mr Setka punching the windscreen. He had a clear and uninterrupted view and was concentrating on Mr Setka at the time. I further accept that Mr Brinzi was seriously stressed and nervous as a result of what had occurred and this may account for some overstatements such as his claim that the vehicle had been wholly surrounded.

195    Shortly after these events Mr Smith was standing at Gate 1. A man said that he wanted to go inside to the toilet. Mr Smith said that he could not do so. The man then said he wanted to have a look inside. Mr Smith responded: “You can’t do that.” The man then tried to brush past Mr Smith who put his hands out. The man walked into Mr Smith’s left arm and some of those standing around started shouting “[d]on’t assault us”. Mr Smith then heard Mr Reardon “scream and shout, and he came running up from the area where the truck was, threatening to stab me in – in my neck with a knife.”

196    Under cross-examination Mr Smith said that the man who had spoken to him at the gate was accompanied by another and that they were acting in a joking manner. Mr Smith denied becoming aggressive and pushing the man. At this time Mr Reardon was at least 20 metres away and had yelled at him. Mr Smith insisted that one of the things which he heard Mr Reardon say was that he would stab him (Mr Smith) in the neck with a knife. Mr Smith said that two police officers were nearby and were close enough to have heard anything that Mr Reardon said. Mr Smith said that he went to the police officers and asked them if they were going to do anything about what had been said and the police officers said “no”. Mr Smith had not made a police statement about these events.

197    Mr Reardon denied this allegation in his defence but he did not give evidence. He submitted that the Court could not be satisfied, on this evidence, that, the incident had occurred in the manner in which the Director had alleged. He relied in particular on the failure to call the police officers who could have been expected to recall hearing such a serious threat made.

198    I accept that, in the course of some noisy and heated verbal exchanges, Mr Smith thought that he heard Mr Reardon threaten to stab him in the neck with a knife. In the boisterous and heated environment in which the threat was said to have been made, it is, however, possible that Mr Smith misheard what Mr Reardon said. Mr Reardon was at least 20 metres away from Mr Smith. This may have added to the difficulty of Mr Smith hearing clearly what was said. Had such a serious threat been made I would have expected the police officers who had heard it to have intervened at least to the extent of cautioning Mr Reardon. The fact that they did nothing gives rise to the possibility that Mr Reardon shouted something other than the threat which was attributed to him. Given the seriousness of the allegation and the absence of corroborating evidence, particularly from the police officers, I am not satisfied to the requisite standard that the alleged threat was uttered.

199    At about 3:00 pm those blockading McNab Avenue started to pack up. They removed the tent and the barbecue. By about 4:00 pm all had left.

200    Between 4:00 pm and 5:30 pm Grocon employees arranged for the prime mover to return and bring the trailer on to the site. Other trucks also brought crane parts on to the site.

Saturday, 18 August 2012

201    Mr Reardon filmed Mr Joe Brinzi as he arrived for work at the McNab Site, and called Mr Brinzi a “fuckin’ arsehole”.

Monday, 20 August 2012

202    Mr Bortoletto gave evidence that Mr Reardon stood on McNab Avenue on this day and filmed workers as they entered the McNab Site to deliver a crane. Mr Bortoletto was closely cross-examined about this incident but maintained his account. I accept his evidence.

Tuesday, 28 August 2012

203    At approximately 9:45 am Mr Setka attended the McNab Site with Mr Spernovasilis. Shortly after arriving at the site, Mr Bortoletto drew Mr Setka's attention to the Supreme Court orders which had been posted on Gates 1 and 2. He told Mr Setka that the orders required that Mr Setka should not be in the vicinity of the site. Mr Setka responded that he didn’t care about the orders.

Wednesday, 5 September 2012

204    During the morning a group of men, a number of whom were wearing CFMEU clothing, congregated on the road at the entrance to McNab Avenue and prevented or otherwise interfered with the free passage of truck deliveries to the site. At approximately 6:40 am a ‘Best Bar’ truck carrying reinforcing steel approached the men and stopped. Messrs Reardon and Setka walked around the front of the truck and spoke to the driver through the driver's side window. At this time, a group of approximately 20 men, some of whom wore CFMEU-branded clothing, were congregated on the road at the entrance to McNab Avenue.

205    Shortly after this occurred, Mr Rigg walked up to and spoke with some police officers who were present at the scene. The group of men continued to mill around on the road. Mr Rigg was abused by members of the crowd who called him a “dog” and a “rat”. Mr Setka said to Mr Rigg “You eat dog food”. The truck departed at approximately 7:00 am without being able to deliver its load.

206    At 8:03 am, the truck made another attempt to deliver the reinforcing steel to the site. As the truck came through the roundabout at the entrance to McNab Avenue, a man stood in front of it, preventing it from travelling further. More men walked up McNab Avenue towards the front of the truck. Another group of men also walked around from the side, to the front of the truck. The men stood in four loose rows, one behind the other, in front of the truck on McNab Avenue. They then bunched up around the front of the truck in a single group. The truck was unable to proceed. The driver got out of the truck and talked to the group. He then got back in, reversed and drove away.

207    The steel on the truck was not delivered and this meant that the productive work scheduled for 5 September 2012 did not occur.

LATER EVENTS

Thursday, 6 September 2012

208    At approximately noon Messrs Oliver, Noonan, Van Camp and Daniel Grollo met at the Park Hyatt Hotel. A settlement of the dispute was negotiated.

Friday, 7 September 2012

209    Mr Oliver participated in a radio interview on the ABC 774 station during which he said:

“… we spoke to those workers to tell them that we had reached an agreement with conditions attached to it and that we would be lifting the peaceful demonstration…”.

210    Mr Noonan also participated in an interview with Naomi Woodley during which he said:

“… there are some very important principles at stake here – the principle of workers not to be told by their employer who's going to represent them in union matters, not to be dictated to about who'll represent them about safety matters in what is a very high risk industry.”

INDIVIDUAL LIABILITY – THE SECOND TO NINTH RESPONDENTS – SS 348 AND 355

Action

211    The Director identified particular “action” by each of the second to ninth respondents upon which he relied for the purposes of establishing liability under ss 348 and 355 of the Act. He relied on the same acts for the purposes of each section.

212    The acts relied on in relation to Mr Setka at the Myer Emporium Site were:

    22 August 2012 – his conduct towards Mr Smith in Albion Alley (above at [85]);

    23 August 2012 – attending the site from time to time including standing in the Little Bourke Street loading bay (above at [94] and [98]);

    28 August 2012 – attending at the site, standing with Messrs Reardon and Spernovasilis when Mr Reardon refused a request from Mr Van Camp to allow the Grocon workers to enter the site, encouragement of the group of men who were pushing back against the mounted police and his abuse of the Grocon employees at the entrance to the Grocon headquarters building (above at [122], [126] and [134]);

    29 August 2012 – attendance at the site during the morning including standing with others outside Gate 1 (above at [138] and [139]);

    30 August 2012 – attended the site at various times during the morning including standing with groups in the Little Bourke Street loading bay and in front of Gate 1 (above at [143]);

    31 August 2012 – attended the site at various times during the morning in company with other officials including Messrs Oliver, Reardon and Spernovasilis (above at [158]);

    4 September 2012 – attended the site at various times throughout the day. Standing with others in Lonsdale Street while some of those present yelled abuse at Grocon employees (above at [163] and [166]).

213    The actions of Mr Setka at the McNab Site which were relied on by the Director were:

    17 August 2012 – presence in McNab Avenue with other persons including Messrs Spernovasilis, Reardon and Theodorou, standing in front of the mini bus, punching its window and abusing Mr Andrew Brinzi (above at [182], [185], [188], [192] and [194]);

    28 August 2012 – attendance at the site with Mr Spernovasilis and telling Mr Bortoletto that he did not care about the Supreme Court orders posted on or near Gates 1 and 2 (above at [203]);

    5 September 2012 – blocking the progress of a truck attempting to enter the site and abusing Mr Rigg (above at [204] and [205]).

214    Each of these actions was relied on both as an action of Mr Setka’s and in respect of the actions of other persons whom his acts encouraged or incited.

215    The acts relied on in relation to Mr Reardon at the Myer Emporium Site were:

    22 August 2012 – attendance at the site at various times during the day and his attendance at the State Library, together with Mr Christopher, that morning when he encouraged Grocon workers not to attend for work but to instead attend a barbecue in the Little Bourke Street loading bay (above at [76], [79], [84] and [90]);

    23 August 2012 – attendance at the site (above at [93] and [98]).

    27 August 2012 – attendance at the loading bay in Little Bourke Street during the morning (above at [108]);

    28 August 2012 – attendance at the site from time to time during the day, his refusal, in company with Messrs Setka and Spernovasilis, of the request from Mr Van Camp to allow Grocon workers to enter the site and appearing in front of the crowd resisting the advance of the police (at [122], [126] and [134]);

    29 August 2012 – attendance at the site during the morning (above at [139]);

    30 August 2012 – attendance at the site throughout the morning, including a period standing in front of Gate 1 (above at [144]);

    31 August 2012 – attendance at the site during the morning (above at [151] and [158]); and

    4 September 2012 – attendance at the site at various times during the day. Standing with others in Lonsdale Street while some of those present yelled abuse at Grocon employees (above at [161] and [166]).

216    The actions of Mr Reardon at the McNab Site which were relied on by the Director were:

    17 August 2012 – attendance at the site from early morning until mid-afternoon, at times in company with Messrs Setka, Spernovasilis and Theodorou, his blocking the progress of the semi-trailer and his calling for the attendance of other CFMEU members to join him at the site (above at [177] to [183]);

    17 August 2012 – blocking the movement of the mini bus being driven by Mr Andrew Brinzi (above at [185], [188], [192] and [194]);

    17 August 2012 – threatening Mr Graham Smith outside the site (this allegation was not established: see above at [195] to [198]); and

    5 September 2012 – joining with others to prevent a truck entering the site (above at [204]).

Each of these actions was relied on both as an action of Mr Reardon’s in respect of the actions of other persons whom his acts encouraged or incited.

217    The acts relied on in relation to Mr Christopher at the Myer Emporium Site were:

    22 August 2012 – attendance at the site, attendance at the State Library when Mr Reardon urged Grocon employees to attend the barbecue in the Little Bourke Street loading bay and then go home and, with others, standing in front of the gantry gate entry on Lonsdale Street thereby preventing Mr Van Camp and Mr O’Hara entering the gate (above at [79], [83] and [90]);

    28 August 2012 – attendance at the site, use of a loud hailer to address the crowd, the making of statements encouraging members of the crowd to remain nearby and to “hold the line” (above at [131]); and

    30 August 2012 – attendance at the site and use of a loud hailer to address the crowd gathered outside the site, including encouragement of them to “keep turning up” (above at [145]).

Each of these actions were relied on both as an action of Mr Christopher’s and in respect of the actions of other persons whom his acts encouraged or incited.

218    The acts relied on in relation to Mr Spernovasilis at the Myer Emporium Site were:

    22 August 2012 – attendance at the site and being one of a group who stood in front of the gantry gate entry on Lonsdale Street thereby preventing Mr Van Camp and Mr O’Hara entering the gate (above at [73], [83], [84] and [90]);

    23 August 2012 – attendance at the site including standing outside Gate 1 (above at [93], [95] and [98]);

    27 August 2012 – attendance at the site (above at [108] and [115]);

    28 August 2012 – attendance at the site at various times during the morning and standing with Messrs Setka and Reardon when Mr Reardon refused a request from Mr Van Camp to allow the Grocon workers to enter the site (above at [122] and [134]);

    29 August 2012 – attendance at the site at various times during the day (above at [139]);

    30 August 2012 – attendance at the site at various times during the morning, including taking a shopping trolley full of food across Lonsdale Street towards the site (above at [146]);

    31 August 2012 – attendance at the site at various times throughout the day, including the carrying of bags of bread along Lonsdale Street towards the barbecue being operated by CFMEU members in Lonsdale Street and directing members of the crowd to move towards and assemble at Gate 1 after police had arranged for temporary fencing to be removed (above at [154], [157] and [158]); and

    4 September 2012 – attendance at the site throughout the day, using a loud hailer in Lonsdale Street to give instructions to the crowd and joining with others to shout abuse at Grocon employees who had entered the site (above at [163], [165] and [166]).

219    The action of Mr Spernovasilis at the McNab Site which was relied on by the Director was:

    17 August 2012 – his attendance at the site at various times during the day, sometimes in company with Messrs Setka, Reardon and Theodorou (above at [182]).

This action was relied on both as Mr Spernovasilis’ own action and in respect of the actions of other persons whom his attendance encouraged or incited.

220    The acts relied on in relation to Mr Oliver at the Myer Emporium Site were:

    28 August 2012 – attendance at the site and his addressing of media representatives in company with Messrs Setka, Reardon and Spernovasilis (above at [134]);

    29 August 2012 – attendance at the site (above at [139] and [141]);

    31 August 2012 – attendance at the site and addressing media representatives (above at [156] and [158]); and

    4 September 2012 – attendance at the site throughout the day (above at [166]).

Each of these actions was relied on both as Mr Oliver’s own actions and in respect of the actions of other persons whom his acts encouraged on incited.

221    The acts relied on in relation to Mr Edwards at the Myer Emporium Site were:

    28 August 2012 – attendance at the site and making of various statements to the crowd using a loud hailer in which he encouraged and directed their conduct (above at [120], [126], [129], [130], [132] and [133]);

    29 August 2012 – attendance at the site (above at [139]);

    31 August 2012 – attendance at the site and his making of statements to the crowd, using a loud hailer, during which he encouraged and directed their conduct (above at [155]);

    4 September 2012 – attendance at the site and the making of statements to the crowd using a loud hailer in which he encouraged and directed their conduct (above at [164] and [166]); and

    6 September 2012 – attendance at the vicinity of the site and the making of statements to the crowd gathered at the site using a loud hailer (above at [168]).

222    Each of these actions was relied on both as Mr Edwards’ own actions and in respect of the actions of other persons whom his acts encouraged or incited.

223    The acts relied on in relation to Mr Stephenson at the Myer Emporium Site were:

    28 August 2012 – attendance at the site (above at [127]); and

    4 September 2012 – attendance at the site (above at [166]).

224    Each of these actions was relied on as an action of Mr Stephenson.

225    The acts relied on in relation to Mr Johnston at the Myer Emporium Site were:

    27 August 2012 – attendance at the site (above at [108]);

    28 August 2012 – attendance as part of the crowd assembled on Lonsdale Street (above at [127]);

    31 August 2012 – attendance at the site (above at [158]); and

    4 September 2012 – attendance at the site (above at [166]).

226    Each of these actions was relied on as an action of Mr Johnston.

227    The respondents accepted that, if the taking of these alleged acts was proven (as I have found them to have been subject to the exception relating to Mr Reardon’s alleged threat to Mr Smith at the McNab Site on 17 August 2012) and the necessary intention was also established, then liability may be attached to particular respondents. The relevant acts were “actions” against Grocon for the purposes of ss 348 and 355 of the Act. To the extent that any of them involved the direction or co-ordination of the blockades they also fell within the term “organise” in both sections.

Coercion

228    Both ss 348 and 355 provide that a person must not take action against another person with the intent to coerce that person or a third person to do or not do certain things.

229    An intention to “coerce” forms an element of the statutory proscription in three of the sections appearing in Part 3-1 of the Act. These sections are 343, 348 and 355. Some of these provisions are the successors of earlier provisions such as ss 170NC and 789 of the Workplace Relations Act 1996 (Cth). In State of Victoria v Construction, Forestry, Mining and Energy Union (2013) 218 FCR 172 the Full Court considered that the meaning to be accorded to the phrase “intent to coerce” had become settled (see at 187). The Court referred, with approval, to Merkel J’s statement in Seven Network (Operations) Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (2001) 109 FCR 378 at 388 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.”

230    The first of these elements was explained in greater detail by Weinberg J in National Tertiary Education Industry Union v Commonwealth (2002) 117 FCR 114. Speaking of this element his Honour said (at 143) that:

“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 persuade or induce. Coercion applies 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.”

231    The second element was considered by Buchanan J in Fair Work Ombudsman v National Jet Systems Pty Ltd (2012) 218 IR 436. His Honour pointed to the common law origins of this element in the torts of coercion and duress. In doing so he referred (at 443) to the judgment of McHugh J in Crescendo Management Pty Ltd v Westpac Banking Corporation (1988) 19 NSWLR 40 at 46 where McHugh J had equated the three categories saying (at 46) that:

“Pressure will be illegitimate if it consists of unlawful threats or amounts to unconscionable conduct. But the categories are not closed …”.

232    The Full Court’s decision in State of Victoria v Construction, Forestry, Mining and Energy Union (2013) 218 FCR 172 involved the construction of s 343 of the Act. In Fair Work Ombudsman v Maritime Union of Australia [2014] FCA 440 at [304] Siopis J held that the phrase “intent to coerce” in s 348 should be construed in the same manner in which it had been read by the Full Court. I respectfully agree with his Honour that same words in the same Part of the Act should be construed consistently. For this reason I consider that the Full Court’s construction should be applied to both ss 348 and 355.

233    The substance of the Director’s case was that each of the actions, which were taken by the various individual respondents, was taken with the intention of coercing Grocon to comply with certain demands made by the CFMEU. The central demand was that Grocon should employ persons nominated by it at the Myer Emporium Site and other Grocon sites throughout Victoria so that those persons could then perform the duties of union shop stewards on the sites. In addition there were subsidiary demands which had been made relating to the wearing of CFMEU logos on apparel, the posting of CFMEU material on sites and the provision of unfettered access to sites by CFMEU organisers. There was also a negative demand that certain persons such as Messrs Hewett, Daniel Van Camp and McMahon should not perform the duties of safety representatives on Grocon sites.

234    It was for the purpose of securing compliance by Grocon with these demands that the blockades in which the individual respondents participated (and in some instances organised and controlled) were implemented and prosecuted.

235    As to the first element the Director contended that an indefinite picket at the Myer Emporium Site which interfered with normal business operations was coercive in the necessary sense. He argued that the size and composition of the crowds which had assembled at the Myer Emporium Site on 22, 23, 27, 28, 29, 30 and 31 August and 4 September 2012 and the distribution of those present adjacent to all functional entry points ensured that, for practical purposes, the entry of vehicles, goods and workers on to the site was rendered potentially dangerous and impractical. The Director pointed to the resistance which was encountered when workers and staff sought to enter the site with the assistance of the police on 28 and 31 August and 4 September 2012.

236    The Director also relied on some specific instances of direct obstruction and besetting at both sites.

237    The instances on which he relied at the Myer Emporium Site were:

    The blocking of Messrs Van Camp and O’Hara when they sought to enter the western door to the Lonsdale Street gantry on 22 August 2012.

    The blocking of the utility vehicle driven by Mr Porco when he tried to drive it into the Little Bourke Street loading bay on 27 August 2012.

    The physical interference by picketers on 28 August 2012 when police sought to create a safe passage for Grocon employees to enter the site.

    The besetting of workers as they made their way towards the site with the assistance of police on 31 August and 4 September 2012.

238    The specific instances relied on by the Director in relation to the McNab Site were:

    The obstruction, on two occasions, of deliveries of crane tower sections on 17 August 2012.

    The obstruction of the mini bus driven by Mr Andrew Brinzi as it attempted to drive away from the site on 17 August 2012 and the besetting of Mr Brinzi on that occasion.

    The obstruction of the delivery truck outside the site on 5 September 2012.

239    As to the second element the Director characterised each action as being unlawful or illegitimate. This was because each formed part of conduct which amounted to obstruction and besetting and which interfered with Grocon’s enjoyment of the sites which it had a right to occupy. The obstruction and besetting also directly interfered with the contractual relations between Grocon and its clients, employees and sub-contractors. This, it was submitted, was illegitimate in a practical business and commercial sense, if not also in a legal sense: cf Williams v Construction, Forestry, Mining and Energy Union (2009) 179 IR 441 at 478-80 (Jessup J). The Director further submitted that the blockade at the Myer Emporium Site on 28 to 31 August 2012 constituted a public nuisance because, at times on those days, some of those in the crowd spilled on to the footpath and roadways abutting the site thereby interfering with the free passage of people and vehicles along Lonsdale Street and Little Bourke Street.

240    It is clear from the history of the dealings between representatives of Grocon and the CFMEU, in the year leading up to August 2012, that both sides held strong and conflicting views about a number of issues. Foremost amongst them was whether Grocon should employ persons, nominated by the CFMEU who would then be assigned to particular sites where they would perform the duties of union representative or “shop steward” on a full time basis. Other building contractors in Victoria had acceded to this demand on their projects. In the course of renegotiating enterprise agreements to which Grocon companies were to be party, the CFMEU seized the opportunity to renew this demand and also to further other claims such as the wearing of logos and the flying of flags on site. The dispute became progressively more acrimonious. Grocon was prepared to consider nominees proposed by the CFMEU but reserved the right to determine whether or not those nominated were suitable. The CFMEU, on the other hand, was asserting an entitlement to have its “own people” on Grocon sites at Grocon’s expense. The CFMEU’s position was made clear by Mr Setka when he said that he could not drive past a Grocon site “knowing that there is no CFMEU representative that I [have] nominated or the CFMEU nominated operating on that project.” The problem was exacerbated when Grocon employees did not leave work to attend a rally on 4 July 2012 and the CFMEU was chided at the Trades Hall Council for not ensuring their attendance at the rally.

241    It was, in these circumstances that the CFMEU embarked on what may fairly be described as a “campaign” against Grocon in August 2012 with a view to procuring Grocon’s acquiescence in its demands. Each of the acts performed by each of the individuals occurred in the course of that campaign and may be understood to have occurred in furtherance of it. Their conduct, on each occasion, evidences an intention to negate Grocon’s choice to maintain its long standing objection to the employment of persons nominated by the CFMEU regardless of Grocon’s assessment of their suitability.

242    This was to be achieved by preventing Grocon from conducting planned construction work on the two sites. The blockades were organised and prosecuted by officials of the Union and others of its members who the officials arranged to attend the sites. Mr Edwards identified himself as the person organising the blockade of the Myer Emporium Site and Mr Reardon organised the obstruction of the vehicles on the roadway outside the McNab Site.

243    Statements made by CFMEU representatives to the media and statements made by officials such as Messrs Edwards and Christopher to the crowds assembled outside the Myer Emporium Site confirm the purpose of the various actions and the objective which the Union was seeking to achieve.

244    The impugned conduct of the individual respondents was both unlawful and illegitimate for the reasons advanced by the Director. The blockades obstructed the unimpeded passage of Grocon employees into the two sites or along public roads. There was actual obstruction constituting a nuisance. Proof of actual obstruction is not, however, necessary to establish the tort. As the Victorian Court of Appeal explained in McFadzean v Construction, Forestry, Mining and Energy Union (2007) 20 VR 250 at 281-2:

“… As we say, we see no reason to doubt the judge’s findings of fact, and therefore we proceed upon the basis that it was not established that any appellant or other member of the public attempted passage or was hindered in the endeavour. But obstruction may be proved without proof that a member of the public was in fact obstructed. As Griffith CJ put it in Haywood v Mumford, the question is simply whether what was done amounted to an obstruction:

‘…it is not necessary that anybody should in fact be passing down the street while the obstruction is there. The question is whether the obstruction is there? As I pointed out in argument, it would be a very singular thing if, in the case of a log laid across a foot way, the person who put it there could be allowed to say that there was no obstruction because nobody fell over the log. In my opinion the conviction was right, and upon the facts the magistrate could not have come to any other conclusion.’

Equally, it is clear that an obstruction need not be total in order to amount to a nuisance. While the action for false imprisonment could not be maintained in Bird v Jones, Patteson J considered that an obstruction which prevented the plaintiff from proceeding in one particular direction on the public highway undoubtedly gave rise to an action on the case for obstructing the passage. Fullagar J took a similar view in Williams v Hursey.

More generally, any unreasonable or excessive use of a highway or activity on or near the highway which renders the highway less commodious to the public is enough to constitute a nuisance. So, for example, it is a nuisance to place logs on a public highway though it may remain possible for the public to steer a course around the logs; or for a merchant continuously to keep vans before the door of his shop in a fashion that practically appropriates part of the roadway for his business; or for a theatre to allow stationary crowds of patrons to block a substantial part of the street as they enter or exit the theatre; or to maintain a picket with a view to compelling persons not to do acts which it is lawful to do.”

See also Grocon Constructors (Victoria) Pty Ltd v Construction, Forestry, Mining and Energy Union [2013] VSC 275 at [332]-[335] (Cavanough J).

245    Whilst picketing, per se, does not necessarily constitute a nuisance “it becomes so if it involves obstruction and besetting”: see Williams v Hursey (1959) 103 CLR 30 at 77-8; Sid Ross Agency Pty Ltd v Actors and Announcers Equity Association of Australia [1971] 1 NSWLR 760 at 767; Dollar Sweets Pty Ltd v Federated Confectioners Association of Australia [1986] VR 383 at 389. In Sid Ross Agency at 768 Mason JA (with whom Jacobs and Holmes JJA agreed) quoted with approval the observations of Stamp J in Torquay Hotel Company Ltd v Cousins [1969] 2 Ch 106 at 119 that:

“At common law a plaintiff is entitled to the lawful use and enjoyment of his property, and a substantial interference with that use and enjoyment is a nuisance. In my judgment picketing outside the entrance of a plaintiff’s hotel, if persisted in, for the purpose of persuading tradesmen and their employees from delivering supplies vital to the running of the hotel in order to compel the plaintiff to submit to the defendant’s demand is thus, prima facie, a common law nuisance. Sir Nathaniel Lindley M.R. in J Lyons & Sons v Wilkins [1899] 1 Ch 255 at 267, remarked with reference to watching and besetting a man’s house with a view to compel him to do or not to do what is lawful for him not to do or do, ‘such conduct seriously interferes with the ordinary comfort of human existence and ordinary enjoyment of the house beset and such conduct would support an action on the case for a nuisance at Common Law.’”

The obstruction of the entrances to the two sites and the obstruction of vehicles on roadways adjacent to the sites was, in each case, unlawful.

246    When the obstruction of the sites was accompanied by threatening and abusive conduct, as it was when workers sought to enter the Myer Emporium Site on 28 August, 31 August and 4 September 2012, the picketing was thereby rendered unlawful for an additional reason. For similar reasons, the obstruction of the vehicle being driven by Mr Andrew Brinzi in McNab Avenue on 17 August 2012 was also undoubtedly unlawful because it was accompanied by verbal abuse.

247    Other unlawful acts were also identified. These included the assaults by Mr Setka and others on Mr Smith in Albion Lane on 22 August 2012 and the punching, by Mr Setka, of the windscreen of the vehicle driven by Mr Andrew Brinzi on McNab Avenue on 17 August 2012.

248    I am satisfied that the conduct relied on by the Director to support his allegations of contravention of ss 348 and 355, in each case, bespeak an intent to coerce.

Section 348 – “Engage in industrial activity”

249    Save for intention, the remaining element which the Director was required to establish to make good the alleged contraventions of s 348 was that the relevant respondent had engaged “in industrial activity”.

250    The Director relied on the following parts of the definition of that term which appear in s 347:

“A person engages in industrial activity if the person:

(a)    …

(b)    does, or does not:

    (i)    …

    (ii)    …

    (iii)    …

(iv)    comply with a lawful request made by, or requirement of, an industrial association; or

    (v)    …

    (vi)    …

    (vii)    …

(c)    …

(d)    …

(e)    complies with an unlawful request made by, or requirement of, an industrial association; or

(f)    …

(g)    …”

251    The Director contended that the relevant requests were that Grocon comply with the CFMEU’s demand relating to the engagement of its nominated persons on the Myer Emporium and other sites and the CFMEU’s other demands relating to access to sites by CFMEU organisers, the wearing of CFMEU logos and the posting of CFMEU notices on the sites. If these “requests” were lawful, Grocon’s compliance or non-compliance with them would be caught by s 347(b)(iv). If they were unlawful then compliance or non-compliance with them would be covered by s 347(e).

252    I accept these submissions.

Section 355 – “Employ …. a particular person”

253    The relevant parts of s 355 have been set out above at [35]. The section proscribes coercive conduct directed to the employment or non-employment of particular employees: see Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2014] FCA 160 at [41] (White J). Each of the paragraphs relied on by the Director refer either to “a particular person” or “a particular employee”.

254    The Director’s case was that each of the respondents had contravened s 355 with intent to coerce Grocon to comply with its demand that potential employees nominated by the CFMEU should be engaged by Grocon to work on the Myer Emporium Site and all its Victorian sites. The employees concerned were identified as five named persons whom Mr Spernovasilis had referred to Mr Van Camp and, in the case of the demand in respect of sites other than the Myer Emporium Site, as “such other person nominated or approved by the CFMEU”. The Director also relied on a negative demand in respect of all sites in respect of the allocation of duties or responsibilities of employee industrial or safety representative to Messrs Hewett, Daniel Van Camp and McMahon.

255    The respondents contended that the adjective “particular”, when employed in conjunction with the nouns “person” or “employee” in s 355, significantly confined the operation of the section. They contended that, in each instance, the Director was required to establish an intent by the respondents to coerce Grocon to employ or not employ a named individual or allocate or not allocate duties or responsibilities to such a named employee.

256    The singular nouns “person” and “employee” are to be read as extending to the plural: see Acts Interpretation Act 1901 (Cth), s 23. There can, therefore, be no objection to the Director relying, in his case, under s 355, on any intention, on the part of a respondent to coerce Grocon to employ the five named individuals or to not to employ the three named employees in specific roles.

257    There remains the question of whether a classification or category of “such other person nominated or approved by the CFMEU” sufficiently identifies a “particular” person or employee. I was not referred to any authority directly on the point in the context of s 355. I was, however, referred to an interlocutory decision of Marshall J in Director of the Fair Work Building Inspectorate v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2013] FCA 82 where his Honour was satisfied that a serious question would arise at trial as to whether s 355(a) would be contravened by a demand that a contractor should “get rid of the 457 workers” (a reference to a visa category permitting foreign workers to enter and work in Australia).

258    The Director also drew my attention to Bullock v The Federated Furnishing Trades Society of Australasia (No 1) (1985) 5 FCR 464. In that case the Full Court was called on to construe s 4D of the Trade Practices Act 1974 (Cth). That section defined the term “exclusionary provision” for the purposes of that Act. The definition included a provision which had the purpose of preventing, restricting or limiting the supply of goods or services to or the acquisition of goods or services from “particular persons”. Woodward J (with whom Sweeney J agreed) said (at 473) that:

“It is unnecessary and undesirable that any concluded view on the meaning of these sections should be reached for the purposes of this application. It is sufficient to say that, in my view, it is clearly arguable that ‘self-employed carpet layers’ or at least ‘the self-employed carpet layers who have in the past been employed by the carpet suppliers who have been forced to sign the FFTSA agreement’ are particular persons within the meaning of the Act. It is arguable that particular persons may be identified by general description, or as members of a designated class, without being individually named.”

See also at 469 (Smithers J).

259    In my view the requirement that “particular” persons or employees be identified for the purposes of s 355 can be satisfied by reference to a class provided that the chosen descriptor is sufficiently precise to enable ready identification of its members.

260    The adjective “particular” bears a number of meanings. Some of those meanings accord with the narrow construction contended for by the CFMEU. The meanings to be found in the Oxford English Dictionary include “belonging or relating to one person … as distinguished from another” and “belonging only to a specified person …”. Broader meanings are, however, to be found in the dictionary. These include “concerning or known to an individual person or group of people and no other …” and “a part, division or section of a whole”. These broader understandings contemplate that particular persons or employees may be identifiable by reference to their membership of a group within a larger cohort of persons or employees.

261    In the context of s 355, the use of the word gives rise to a requirement that coercion must be resorted to in an effort to bring about the employment, etc of identifiable persons or employees as distinct from any person or any employee. The naming of individuals will satisfy this requirement. Where, however, resort is had to identification by reference to a class or a group, “particular” imports a requirement of precision in identifying that class or group of persons. The more precise the description the more likely it is that a member can be regarded as a “particular” person or employee for the purposes of s 355.

262    Section 355 provides that the actor must not do certain things with intent to coerce others to employ or not employ or allocate or not allocate, etc identifiable persons. Those persons will more readily be identifiable if they are already persons who fall within a class such as those, who in the past, have been employed as carpet suppliers or who have worked in Australia pursuant to a specific class of visa. Persons who fall into these categories will be ascertainable. People who enter the class prospectively will only be identifiable upon entry. They will, nonetheless, be ascertainable at that point.

263    Persons who have been or are nominated by the CFMEU for employment by Grocon constitute a group which is readily identifiable by both the CFMEU and Grocon. In my view they are “particular” persons or workers for the purposes of s 355.

Intention – ss 348 and 355

264    A respondent will only be found to have contravened ss 348 and 355 if he or she is shown to have intended to coerce another person. Section 361 raises a presumption that a person has acted with a particular alleged intention “unless the person proves otherwise.” That presumption is not easily displaced. Normally, it will require direct testimony from the actor which is accepted by the Court if the onus is to be discharged: see Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500 at 517 (French CJ and Crennan J).

265    None of the individual respondents (nor anyone else) has given evidence which would in any way serve to displace the presumption. Each of the individual respondents will, therefore, be found to have acted with the intention of coercing Grocon to act in accordance with the CFMEU demands by employing persons nominated by the Union.

Conclusion – ss 348 and 355

266    I find that each of the individual respondents has contravened ss 348 and 355 of the Act, in each of the instances particularised by the Director, save that of Mr Reardon’s alleged threat to Mr Smith at the McNab Site on 17 August 2012.

INDIVIDUAL LIABILITY – SECOND RESPONDENT – S 346

267    The Director’s pleaded case alleged contraventions of s 346 by Messrs Setka and Reardon. These contraventions were said to have occurred on 28 August 2012 at the Myer Emporium Site when Mr Van Camp and other Grocon employees sought to obtain access to the site at about 6:45 am (see above at [121]) and later when Mr Setka crossed Swanston Street and approached the Grocon employees who were standing in the breezeway below the Grocon office (above at [127]).

268    The allegation against Mr Reardon of contravention of s 346 was not pressed at trial.

269    The Director did, however, contend that Mr Setka had contravened the section when he abused the Grocon employees, using language such as “fucking dogs” and “rats” and saying to them “you should be over with us, this is where it is.” The use of such abusive language was said to constitute adverse action against the employees because it had prejudiced them in their employment: see Item 7 of s 342.

270    In his written submissions (at [254]) the Director further submitted that:

“Setka took the adverse action against these Grocon workers because they were not participating in the CFMEU’s blockade. Therefore, Setka took this action because the Grocon employees were engaging in ‘industrial activity’ within the meaning of s 347(b)(v), namely, by not being ‘over with us’ they were not representing or advancing the views, claims and interests of the CFMEU.”

271    Although not expressly stated the Director’s case must rest on s 346(b) which provides that a person must not take adverse action against another because the other person “engages … in industrial activity within the meaning of paragraph 347(a) or (b) …”. This must be so because paragraph (a) of s 346 deals with adverse action being taken because a person was not an officer or member of an industrial association and paragraph (c) only covers industrial activity as defined in paragraphs 347(c) to (g).

272    It is, nevertheless, somewhat difficult linguistically to appreciate how a person who does not do something such as representing or advancing the claims of a union can be said to engage in industrial activity. This is, however, something that is expressly contemplated when s 346(b) is read together with s 347(b)(v).

273    When Mr Setka approached the assembled Grocon employees he told them that they should be “over the road” with those who were preventing their entry to the site. The purpose of the blockade was avowedly to advance the CFMEU’s claims including the claim that Grocon should employ persons nominated by the CFMEU with a view to those persons acting as shop stewards on sites such as the Myer Emporium Site. Mr Setka was told by at least one of the employees that they wanted to go to work. I readily infer that this was the general view of the group. They had assembled for the purpose of crossing the road and entering the site if they could do so without impediment from those forming the blockade. They implicitly rejected Mr Setka’s assertion that they should be joining the blockade rather than contemplating entering the site and doing a day’s work. Faced with this non-compliance, Mr Setka launched into an abusive tirade against the workers.

274    Whether adverse action has the effect of prejudicing an employee directly or indirectly in his employment, is a question of fact.

275    At the time that Mr Setka abused them, the workers were awaiting an opportunity to enter their workplace and commence work. It was their desire to do so which enraged Mr Setka. At the time they were engaged in their employment.

276    The next question is whether Mr Setka’s abuse prejudiced them in that employment either directly or indirectly. The tirade has to be understood in its industrial context. The CFMEU was seeking to force Grocon to comply with its demand to employ nominated persons so that they would be available to act as shop stewards in the interests of Grocon’s workforce. Grocon was resisting the demand and its employees, the very people whose interests the CFMEU was purporting to advance, wanted no part in that industrial action. In branding those workers as “dogs” and “rats” Mr Setka sought to belittle them as traitors to the Union and the interests of construction workers generally.

277    In Qantas Airways Limited v Australian Licensed Aircraft Engineers’ Association (2012) 202 FCR 244, the Full Court considered the meaning of Item 1 in the table subjoined to s 342(1) of the Act. It provided that adverse action was taken if an employer “alters the position of the employee to the employee’s prejudice”. The Full Court said (at 250) that:

“The authorities thus establish that a prejudicial alteration to the position of an employee may occur even though the employee suffers no loss or infringement of a legal right. It will occur if the alternation in the employee’s position is real and substantial rather than merely possible or hypothetical.”

278    Although Item 1 is worded differently from the present Item 7, both items deal with prejudice to employees in their employment. Having regard to the terms of the abuse and the context in which occurred, I consider that the Grocon employees were prejudiced, in a real sense, by Mr Setka’s utterances: see Fair Work Ombudsman v Maritime Union of Australia [2014] FCA 440 at [254]-[255] (Siopis J).

279    Mr Setka was an officer of the CFMEU. His use of foul and abusive language towards the Grocon employees, in my view, prejudiced them in their employment.

280    In these circumstances a presumption arises under s 361 of the Act that Mr Setka took the adverse action against the employees because they refused to join the blockade and thereby advance the Union’s claims against Grocon. In the absence of any evidence from Mr Setka or the CFMEU this presumption has not been displaced.

281    I, therefore, find that Mr Setka contravened s 346.

LIABILITY OF THE CFMEU

282    The Director submitted that the CFMEU was itself liable for the acts of the individual respondents in their capacity as officials of the Union. He accepted that the effect of the Full Court’s decision in Construction, Forestry, Mining and Energy Union v Director of Fair Work Building Inspectorate [2014] FCAFC 101 was that the proceeding against the CFMEU stood dismissed to the extent that pecuniary penalty orders were sought against it in respect of any contravening conduct by the individual respondents at the Myer Emporium Site on 28-31 August 2012 inclusive and 5 September 2012 at the McNab Site. He maintained, however, that he was entitled to pursue other relief against the Union in the event that it was found liable for the conduct of its officials on those days. He was not constrained from seeking a full range of relief, including pecuniary penalties, in respect of impugned conduct on other days. For reasons already given, I accept these submissions.

283    In his pleaded case the Director alleged that the CFMEU could be affixed with direct liability under s 362 of the Act or as an accessory, relying on s 550. These bases for liability were not seriously pressed in final submissions.

284    The Director sought to rely instead on provisions of s 363 of the Act which relevantly provides:

“(1)    For the purposes of this Part, each of the following is taken to be an action of an industrial association:

(a)    …

(b)    action taken by an officer or agent of the industrial association acting in that capacity;

(c)    action taken by a member, or group of members, of the industrial association if the action is authorised by:

(i)    …; or

(ii)    …; or

(iii)    an officer or agent of the industrial association acting in that capacity;

(d)    …;

(e)    …;

(2)    …

(3)    If, for the purposes of this Part, it is necessary to establish the state of mind of an industrial association in relation to particular action, it is enough to show:

(a)    that the action was taken by a person, or a group, referred to in paragraphs (1)(a) to (e); and

(b)     that the person, or a person in the group, had that state of mind.

(4)    …”

285    It was not in dispute that the CFMEU was an industrial association for the purposes of s 363. Nor was it in dispute that the individual respondents were officers of the Union: see definitions in s 12 of the Act.

286    The acts relied on by the Director in relation to each of the individual respondents have been set out earlier in these reasons. The effect of s 363 is to deem each of these acts to be an action of the CFMEU if these respondents were acting in their capacity as officers at the time.

287    It is not necessary for the Director to establish that the various acts occurred whilst the officials were performing their duties as such. I am, nonetheless, satisfied that each of acts relied on by the Director occurred in furtherance of the CFMEU’s industrial campaign to force Grocon to comply with its demands and, in particular, those demands relating to the employment of nominated workers. The presence of the officials at the two sites during the blockades, their active participation in prosecuting those blockades and the public statements made by some of them about the purpose of the blockades support a strong inference that they were at the relevant sites at various times in their capacity as Union officials.

288    I find that each relevant action of individual respondents was an action of the CFMEU. Each action was, by operation of s 363(3), taken with the requisite intention.

289    The CFMEU has contravened ss 348 and 355 of the Act by taking each proscribed action found to have been taken by the individual respondents. Unlike those respondents it is not liable to the imposition of a pecuniary penalty for taking action at the Myer Emporium Site on 28, 29, 30 and 31 August 2012 or on 5 September 2012 at the McNab Site.

RELIEF

290    I will give directions relating to the second stage of the hearing which is to deal with the relief sought by the Director.

Associate:

Dated:    17 March 2015