FEDERAL COURT OF AUSTRALIA

Director of the Fair Work Building Industry Inspectorate v McCullough [2016] FCA 1291

ORDERS

THE COURT ORDERS THAT:

1.    As against the 1st, 2nd, 3rd, 4th, 5th, 7th, 8th, 10th, 12th, 13th, 15th, 18th, 21st, 23rd, 24th, 27th, 28th, 29th, 31st, 32nd, 33rd, 35th, 37th, 39th, 40th, 41st, 43rd, 45th, 49th, 50th, 51st, 52nd, 53rd, 54th, 59th, 60th, 61st, 62nd, 63rd, 64th, 65th, 66th, 67th, 68th, 70th, 71st, 73rd, 74th, 77th, 81st, 84th, 85th, and 86th respondents, there be declarations that each contravened s 417 of the Fair Work Act 2009 (Cth).

2.    The matter be re-listed to hear from the parties as to what pecuniary penalties, if any, should be imposed pursuant to s 546 of the Act on each of those respondents for the declared contraventions.

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

REASONS FOR JUDGMENT

BARKER J:

1    On 18 July 2013, the Construction, Forestry, Mining and Energy Union (CFMEU) organised a rally at the site of the Perth Children’s Hospital project in Nedlands, a Perth suburb.

2    The first respondent, Mr Campbell McCullough, and a number of CFMEU officials were present.

3    Mr David Noonan, the National Secretary of the CFMEU Construction and General Division, and Mr Michael Buchan, WA Divisional Branch Secretary of the CFMEU Construction and General Division, addressed the rally about wages, penalty rates and safety in relation to John Holland Pty Ltd, the head contractor on the project.

4    That same day, persons who were ostensibly employees of Brookfield Multiplex Australasia Pty Ltd and persons who are said to have been employees of FCL Construction Pty Ltd, as well as employees of CASC Constructions Pty Ltd, who were rostered to attend for work at the St John of God Midland Hospital project site that day, failed to attend for work.

5    Additionally, persons said to be employees of FCL and Brookfield Australasia who were rostered to attend for work at the St John of God Murdoch Hospital project site that day, did not attend for work.

6    Having regard to the failure of these respondent employees or alleged employees to attend for work that day, the Director of the Fair Work Building Industry Inspectorate now seeks the following remedies:

(1)    declarations that the respondents contravened s 417 of the Fair Work Act 2009 (Cth);

(2)    orders pursuant to subs 546(1) of the Act imposing pecuniary penalties on them by reason of their contraventions of para 417(1)(a) of the Act; and

(3)    an order pursuant to para 546(3)(a) of the Act that the pecuniary penalties be paid to the Commonwealth.

7    The Director relies on an amended statement of claim that he was given leave to file on the first day of the trial of the proceeding.

8    While the originating application initially filed and dated 9 April 2015 sought relief against some 101 individual respondents, on 4 September 2015, the Director filed notices of discontinuance against the 46th and 101st respondents, neither of whom had filed a notice of address for service. On 22 December 2015, the Court ordered, by consent, that the proceeding be discontinued as against the 9th, 11th, 16th, 20th and 44th respondents. On 11 January 2016, the Court ordered, by consent, that the proceeding be discontinued as against the 6th, 14th, 17th, 19th, 22nd, 25th, 26th, 30th, 34th, 36th, 38th, 42nd, 47th, 48th, 55th to 58th, 69th, 72nd, 75th, 76th, 78th to 80th, 82nd, 83rd and 87th respondents.

9    As a result, the Director now seeks orders against only 66 individual respondents.

10    Each of these individual respondents, save for the 59th respondent, have filed a defence, each of which effectively makes no admissions and relies on a penalty privilege in so doing. The 59th respondent did not file a defence but the trial proceeded, with the concurrence of the parties, as if he had, in similar terms.

11    At trial, the Director relied on the affidavits of Mr Timothy O’Neill affirmed on 22 June 2015, the supplementary affidavit of Mr O’Neill affirmed on 3 March 2016, the affidavit of Mr Frederick Mason sworn on 26 June 2015, the affidavit of Mr Stephen Ross McConkey affirmed on 7 July 2015 as amended on 3 June 2016, the supplementary affidavit of Mr McConkey affirmed on 31 May 2016, the affidavit of Ms Madeleine Jane Clohessy sworn on 31 May 2016, the affidavit of Mr Brett Roland Roberts affirmed on 29 February 2016 as amended on 3 June 2016, the affidavit of Mr Christopher Richard Stanley sworn on 29 February 2016 and the affidavit of Mr Luis Used affirmed on 11 November 2015. The Director also relied upon the oral evidence of Mr Mason, Mr Used, Mr McConkey and Mr O’Neill given at the trial.

12    Following the closing of the Director’s case and subject to what happened later as explained below, the respondents elected not to call any evidence.

13    Subsection 417(1) of the Act provides that:

A person referred to in subsection (2) must not organise or engage in industrial action from the day on which:

(a)     an enterprise agreement is approved by the FWC until its nominal expiry date has passed; or

(b)     a workplace determination comes into operation until its nominal expiry date has passed;

whether or not the industrial action relates to a matter dealt with in the agreement or determination.

14    In order for the Director to establish that there has been a contravention of s 417(1) of the Act in relation to each of the respondents, the parties recognise that it is necessary for the Director to establish that each individual respondent (as an employee of either Brookfield Australasia, FCL or CASC):

    was a “national-system employee” covered by an enterprise agreement;

    the enterprise agreement had been approved by the Fair Work Commission and had not passed its nominal expiry date; and

    prior to the expiry of the nominal expiry date of the enterprise agreement, the employee had engaged in industrial action.

15    “Industrial action” is defined in s 19 of the Act to include, relevantly, a failure or refusal by an employee to attend for work (see s 19(1)(c) of the Act). A note beneath s 19(1) provides as follows:

In [AMWU] v The Age Company Limited, PR946290, the Full Bench of the Australian Industrial Relations Commission considered the nature of industrial action and noted that action will not be industrial in character if it stands completely outside the area of disputation and bargaining.

16    Additionally, by s 19(2), “industrial action” does not include action by an employee that is authorised or agreed to by the employer of that employee.

17    While the respondents did not by their defences admit the standing of the Director to bring this proceeding, at the trial, the matter of standing of the Director to do so was not contested by the respondents. The Court accepts the submissions made by the Director that he is a person with standing and authority to bring these proceedings pursuant to s 539 of the Act.

18    Similarly, on the basis of evidence given at the trial, there is no doubt that the pleaded enterprise agreements and nominal expiry dates of each, as alleged by the Director, were proved and nothing more need be said about them, save to record the formal approval and nominal expiry dates.

19    The Brookfield Multiplex Australasia Pty Ltd and CFMEU (WA) and Employees Enterprise Agreement 2011-2015 (Brookfield Agreement) was approved by the Commission (Deputy President McCarthy) on 25 January 2012. It had a nominal expiry date of 31 October 2014 (see cl 4.1 of the Brookfield Agreement).

20    The FCL Construction Pty Ltd and CFMEU (WA) and Employees Enterprise Agreement 2011-2014 (FCL Agreement) was approved by the Commission (Deputy President McCarthy) on 15 May 2012. It had a nominal expiry date of 31 October 2014 (see cl 4.1 of the FCL Agreement).

21    The CASC Construction Pty Ltd and CFMEU (WA) and Employees Enterprise Agreement 2011-2014 (CASC Agreement) was approved by the Commission (Cloghan C) on 19 June 2012. It had a nominal expiry date of 31 October 2014 (see cl 4.1 of the CASC Agreement).

22    The respondents, at least in part, deny that they were all covered by one or other of these agreements. They relevantly argue that the first to sixth respondents (Brookfield Australasia respondents) were not employed by Brookfield Australasia, as alleged by the Director, but by some other entity within the Brookfield group, and so were not covered by the Brookfield Agreement.

23    They also contend that the Director has failed to prove that the 88th to 101st respondents were employed by FCL, as alleged by the Director, and so were not covered by the FCL Agreement.

24    In respect of the seventh to 87th respondents (CASC respondents), the relevant respondents do not raise any coverage issue in respect of the CASC Agreement but say that the Director has failed to prove that the actions of these respondents on 18 July 2013 were not authorised or agreed to by CASC.

25    Further, the CASC respondents and Brookfield Australasia respondents contend that the Director has failed to prove that the actions of those respondents on 18 July 2013, in failing to attend for work as rostered, were “industrial” in character.

26    Accordingly, the respondents contend that no contravention of s 417(1) of the Act by any of them has been made out by the Director.

27    There are then three broad issues raised for determination:

(1)    The coverage issue.

(2)    The authorisation issue.

(3)    The industrial character issue.

The coverage issue

FCL employees or Stonemason employees?

28    As noted above, the relevant respondents contend that the Director has failed to prove that they were covered by the FCL Agreement. The respondents in substance contend that the evidence does not permit a finding that they were employed by FCL, but rather were employed by a company known as Stonemason Pty Ltd, and in that respect rely on the evidence given by Mr Mason, called by the Director.

29    In short, the Director submits that, in “truth and substance”, FCL was the relevant employer at material times, not Stonemason.

30    He further submits that even if Stonemason was the employer, this would not be material because the transfer of business provisions in Pt 2-8 of the Act would mean the relevant respondents remained covered by the FCL Agreement.

31    Clause 3.1 of the FCL Agreement provides that:

3.1    Subject to this clause and section 53 of the Act, this Agreement covers:

(a)    the Employer;

(b)    the Employees; and

(c)    the Union;

in the building and construction industry in the State of Western Australia.

32    The term “Employee” is defined at cl 2 of the FCL Agreement as meaning, “an employee of the Employer who is engaged in any of the occupations or callings specified in the Award.”

33    The term “Employer” is defined at cl 2 of the FCL Agreement as meaning, “FCL Construction Pty Ltd; ABN: 074 024 356”.

34    The respondents contend the evidence before the Court conclusively proves that the relevant respondents were not employed by FCL, but were in fact employed by Stonemason.

35    These respondents submit the primary evidence in support of that proposition includes:

(1)    Mr Mason’s direct evidence that these respondents were deliberately employed by Stonemason at material times. Indeed, they say counsel for the Director accepted that Mr Mason’s evidence was that these respondents were employed at material times by Stonemason.

(2)    That Mr Mason at no stage in his affidavit directly stated that these respondents were employed by FCL, and instead merely referred to these respondents as “FCL employees”, leading only to an imputation that they were employed by FCL. They say Mr Mason acknowledged that there was a problem with that evidence. In examination-in-chief, Mr Mason corrected that evidence to reflect the fact, supported by corroborating evidence, that these respondents were employed by Stonemason at material times.

(3)    Mr Mason’s statement that all of these respondents were employed by Stonemason from 2012 onwards.

36    These respondents further submit that Mr Mason’s direct evidence that they were employed by Stonemason at material times is reflected in the following documentary evidence annexed to his affidavit:

(1)    The timesheets annexed at FM-3 and FM-4, which are entitled “STONEMASON” and referred to as “EMPLOYEE TIME SHEET”. They say the inference that these respondents were employees of Stonemason is clearly available from the timesheets.

(2)    The timesheets annexed at FM-3 and FM-4 include a column headed, “S/DATE”, which they say Mr Mason explained indicated the start date of each of these respondents as employees with Stonemason.

(3)    The payslips annexed at FM-5 and FM-6 of the affidavit of Mr Mason are entitled “Stonemason Pty Ltd” and “Payroll Advice”, which they say indicates that these respondents were employees of Stonemason for the purposes of payroll.

(4)    The payslips annexed at FM-5 and FM-6 list the payer of the wages as “Stonemason Pty Ltd” and the ABN as “ABN: 84 101 776 685”. They say that, as this ABN is different to the one listed for FCL under the definition of employer in cl 2 of the FCL Agreement, Stonemason must be a distinct, separate company and employer to FCL. They say there is no pleaded case, or evidence before the Court, of any transfer of business.

37    The result of this evidence, submit these respondents, is that the Director has not proven that they were employed by FCL. If anything, the Director has proven that they were employed by Stonemason at material times. There is no evidence, they submit, before the Court of them being covered by any enterprise agreement, including the FCL Agreement or a separate enterprise agreement with Stonemason.

38    The Director submits that notwithstanding the evidence given by Mr Mason, the true employer of the relevant respondents at material times was FCL and that the FCL Agreement covered them. In deciding who the true employer relevantly was, the Director submits the Court may consider a number of factors (not all of which are relevant here) including: the nature of the business and the work performed, conversations and actions at the time of the engagement of the employees, identification of the terms and conditions of the relationship of employment, the identity of the entity that exercised control and the manner of such exercise with respect to the respondents in their capacities as employees, the identity of the entity that provided the materials, equipment and resources to enable them to perform their work, the identity of the entity to which the respondents as employees had obligations of reporting, the understanding and belief of the parties themselves, the methods and means of payment of the respondents and the matters revealed from the various management and administrative documents relating to FCL and Stonemason. See Romero & Ors v Auty & Ors (2001) 19 ACLC 206 at [42]; [2000] VSC 462.

39    The Director submits that, in relation to the understanding of the parties, there was evidence from Mr Mason, but no evidence from the alleged FCL respondents engaged at the Midland project site or the FCL respondents engaged at the Murdoch project site, on this issue. The Director submits the evidence of Mr Mason is contradictory on this point. The Director notes that, in his sworn affidavit, Mr Mason repeatedly says that the employer of the “FCL employees” was “FCL Construction Pty Ltd”.

40    The Director accepts that the timesheets and payslips annexed to Mr Mason’s affidavit at FM-3, FM-4 and FM-5 contain the words “Stonemason” or “Stonemason Pty Ltd”. The Director says Mr Mason sought to explain this in oral evidence by stating that, “they’re working for Stonemason”. In this respect, the Director says, Mr Mason gave evidence that this was the arrangement and notes that Mr Mason said,

[B]ecause they - it swaps backwards and forward because of workers comp costs and I looked at my diary and...I think, was 2011, they started with Stonemason again.

41    Mr Mason then gave evidence, the Director says, that at the time of entering the FCL Agreement in May 2012, “they were with Stonemason”.

42    The Director submits that, as set out in Romero, Mr Mason’s own view of who the employer was is but one factor in determining who is the true employer, noting that in Fair Work Ombudsman v Quest South Perth Holdings Pty Ltd and Others (2015) 228 FCR 346 at [317]; [2015] FCAFC 37, I said:

In Damevski, Merkel J, at [144], made the point, with which I respectfully agree, that whether a contractual relationship of employer-employee exists between an enterprise and a worker placed with that enterprise, ‘depends on the proper characterisation of the contractual arrangements made between the various parties’. His Honour in referring to the ‘various parties’ was referring not only to the enterprise and the worker but also to the labour-hire firm involved in the hiring arrangement. His Honour there further made the point, which I accept, that the labelling of the relationship of the parties, chosen by the parties, may be disregarded where in law they are wrong having regard to ‘the real substance’ of the relationship: see Curtis v Perth and Fremantle Bottle Exchange Co Ltd [1914] HCA 21; (1914) 18 CLR 17 at 25 (Isaac J).

(Emphasis added.)

43    The relevant passage of Isaac J in Curtis v The Perth and Fremantle Bottle Exchange Co. Ltd. (1914) 18 CLR 17 at 25; [1914] HCA 21, was that:

Where parties enter into a bargain with one another whereby certain rights and obligations are created, they cannot by a mere consensual label alter the inherent character of the relations they have actually called into existence. Many cases have arisen where Courts have disregarded such labels, because in law they were wrong, and have looked beneath them to the real substance.

44    The Director says it can be seen from these authorities that the parties’ own description of the nature of the employment relationship is but one factor in determining who the employer is, and it is necessary to look at all of the objective facts. Indeed, the parties’ own view of the relationship may be disregarded if it is wrong having regard to the “real substance” of the relationship.

45    The Director submits that Mr Mason’s evidence ought be given reduced weight because of the inconsistency between the evidence given by him as to the employer of the employees in his sworn affidavit and his oral evidence.

46    Additionally, the Director submits that Mr Mason’s oral evidence indicates that the identity of the employer swapped back and forward for administrative convenience – that is, because of “workers comp costs” and accordingly, this may not have been a true reflection of who, in substance, was the real employer.

47    The Director further submits that an important issue in determining who the real employer was, is which entity had control over the employees. Mr Mason’s affidavit deposes that he was in control of the FCL Midland respondents and the FCL Murdoch respondents by reason of the fact that he was:

(1)    responsible for overseeing FCL sub-contractor works to Brookfield Australasia at the Murdoch project site and the Midland project site;

(2)    the only person able to provide authorisation for the FCL Midland respondents’ and the FCL Murdoch respondents’ absence from work;

(3)    responsible for deducting pays for each of the employees and providing necessary directions in relation to pay deductions from those employees; and

(4)    critically, “[a]s the Director of FCL”, was “the only person” who could authorise an employee’s absence from work.

48    The Director submits there is no evidence of any role that Mr Mason may have had with Stonemason such that his control over employees was on behalf of Stonemason. This factor, the Director submits, strongly supports a finding that the FCL Midland respondents and FCL Murdoch respondents were, in truth, employees of FCL.

49    The Director says the only evidence in relation to Stonemason’s involvement with those respondents was that its name appeared on the timesheets and payslips.

50    The Director submits that another factor that points towards FCL being the true employer was the approval of the FCL Agreement. The FCL Agreement was approved by Deputy President McCarthy of the Commission on 15 May 2012. At [2] of the approval decision, Deputy President McCarthy said that he was satisfied that the requirements of ss 186, 187 and 188 of the Act were met.

51    Relevantly, the Director observes that in order to approve the FCL Agreement, the Commission had to be satisfied that:

(1)    the FCL Agreement was genuinely agreed to by the “employees covered by the agreement”; and

(2)    the employer complied with s 180(2), (3) and (5) and s 181(2) of the Act.

52    With regard to (2), s 181 of the Act provides for employees who will be covered by an enterprise agreement, such as the FCL Agreement, to approve it by voting for it. Section 180 requires that, prior to an employer requesting employees to vote under s 181, it must explain the terms of the agreement to the employees, and provide a copy of it to them.

53    Subsection 172(2) of the Act provides that an employer may make an enterprise agreement with employees who are employed at the time the agreement is made.

54    Further, the Director notes that s 185(2)(b) of the Act provides that an application for approval of an agreement must be accompanied by, relevantly, any declarations that are required by the Fair Work Australia Rules 2010 (Cth) to accompany the application. The relevant application form for approval of an enterprise agreement is Form F17 (found in Sch 2 of the Rules). Form F17 requires the employer to provide information that, on its face, clearly sets out that the applicant (in this case, FCL) has employees.

55    The Director says the whole scheme of the Act dealing with the making and approval of enterprise agreements is premised on there being employees of the employer covered by the enterprise agreement. Mr Mason’s evidence was that since 2011, the employees were working with Stonemason. On this evidence, there would have been no employees of FCL when the application for the FCL Agreement was made. Given that the FCL Agreement was approved by the Commission, the Director says it is inherently improbable that FCL would have had no employees at the time of approval, or that FCL would have falsely represented to the Commission that it had employees when in fact it did not.

56    The Director contends it is clear from a reading of Mr Mason’s affidavit as a whole that all of FCL’s construction employees were covered by the FCL Agreement. He says it could not therefore be said that there may have been employees other than the FCL Midland respondents and FCL Murdoch respondents who were covered by the FCL Agreement.

57    For these reasons, the Director submits, the fact that there was the FCL Agreement is a strong factor indicating that the true employer of the FCL Midland respondents and FCL Murdoch respondents was in fact FCL.

58    Accordingly, the Director submits that each of the FCL Midland respondents and the FCL Murdoch respondents were engaged as labourers and bricklayers and therefore in occupations or callings specified in the Building and Construction General On-Site Award 2010 (see in this regard, Sch B to the Award).

59    Thus, the Director submits that the FCL Midland respondents and the FCL Murdoch respondents were covered by the FCL Agreement.

60    In my judgement, the Director has failed to prove, in the evidentiary circumstances identified by the parties above, that at material times the relevant respondents were FCL employees. While Mr Mason in his affidavit made statements to that effect, the materials he attached to his affidavit in support of those statements tended either to contradict or place in serious doubt the statements made. As the discussion that follows concerning the Brookfield Australasia respondents explains, persons within corporate groups sometimes tend to make generalised statements about which entities do what. There would appear to be an element of that phenomenon in the evidence given by Mr Mason.

61    The issue concerning which entity – FCL or Stonemason – was the relevant employer was, appropriately, raised by counsel for the Director at the very beginning of his opening address at trial. Unlike the steps taken in relation to an apparently similar sort of issue in the case of the Brookfield Australasia respondents, no further materials were filed on behalf of the Director, or further affidavit made by Mr Mason, to clarify Mr Mason’s evidence.

62    In my view, there was an obvious issue raised by Mr Mason’s affidavit as to whether, in truth and substance, Stonemason, and not FCL, was the relevant employer at material times.

63    When counsel for the Director put the apparent inconsistencies in his affidavit materials to Mr Mason his evidence was clear. Namely, that at material times Stonemason was the employer. It may well be, as counsel for the Director submits, having regard to Mr Mason’s other oral evidence, that there were changes in employer at different times – for business reasons such as workers’ compensation coverage. But, in my view, the difficulty facing the Director remains, and, on the evidence before the Court, the Director has failed to prove, on the balance of probabilities, that FCL was, at the material time, the employer of the relevant respondents. There is too much uncertainty to find otherwise.

64    Indeed, in my view, it is more probable than not that Stonemason was the employer. Materials to which Mr Mason referred at p 95 of his affidavit, also tend in that direction. Mr Mason himself was not in any particular doubt about that being the case.

65    While in some cases, as the authorities relied upon by counsel for the Director indicate, an entity other than the entity to which documents otherwise refer may be found in truth and substance to be the employer of a person, this is not one of those cases. While payslips on their own do not necessarily establish an employment relationship, the question of the payslips, the question of the other documentation referred to by Mr Mason, Mr Mason’s own evidence as to how a different entity at different times was the employer of the relevant respondents, and his conclusion as to who the relevant employer was at the material time on 18 July 2013, all lead me to conclude that his evidence to this end should be accepted and relied upon.

66    At trial, in the face of the evidence given by Mr Mason in the course of his examination-in-chief, counsel for the Director sought leave under s 38 of the Evidence Act 1995 (Cth) to cross-examine his witness. I refused to grant that leave. Even if one were to accept that the evidence that Mr Mason gave was “unfavourable” for the purposes of s 38(1)(a) and so enabled the Court to exercise a discretion to grant leave to cross-examine (which may be doubted given that the inconsistencies or ambiguities or uncertainties actually arose in the primary evidence, being the affidavit of Mr Mason, in the first place and not really in the course of his giving oral evidence), the manner in which the issue arose in the course of the hearing, and there having been no relevant prior notice of the issue and of the intention to cross-examine, led me to refuse leave to cross-examine.

67    Put very simply, in effect what the Director sought to do was overcome the problem that arose by leading evidence to prove that, taking into account the sorts of relevant considerations referred to by Warren J in Romero above, the Court should conclude that, in “truth and substance”, FCL and not Stonemason was the employer at relevant times. That plainly was a completely new line of contention not raised by the pleadings or otherwise identified by the evidentiary materials upon which the Director sought to rely in the proceeding. It was not appropriate that it should be raised and pursued for the first time in the course of cross-examination of Mr Mason.

68    I am also not satisfied that, having regard to the FCL Agreement, the circumstances in which an enterprise agreement is approved under the Act and the other factors referred to by the Director, that the Court can reasonably be satisfied on the balance of probabilities that FCL, and not Stonemason, was the employer of the relevant respondents at the material time of the action that is said to comprise industrial action for the purposes of s 417 of the Act, in the face of Mr Mason’s direct evidence. Those factors, while not irrelevant to the issue at hand, do not enable the Court to be satisfied to the requisite standard, in the face of the countervailing evidence discussed above, that the relevant respondents were FCL employees at material times.

69    With regard to the Director’s submission that this finding is not material to the proceeding because the relevant respondents were nonetheless covered by the FCL Agreement due to the transfer of business provisions in Pt 2-8 of the Act, the relevant respondents say there is no pleaded case or evidence before the Court of any transfer of business. I accept the respondents’ submission.

70    Accordingly, I find for these reasons that the Director has not proved that the relevant respondents were employees of FCL at material times.

71    Accordingly, the proceeding against the alleged FCL Midland and FCL Murdoch respondents must fail.

Brookfield Australasia employees or employees of some other Brookfield entity?

72    Clause 3.1 of the Brookfield Agreement provides that:

Subject to this clause and section 53 of the Act, this Agreement covers:

(a)    the Employer;

(b)    the Employees; and

(c)    the Union;

in the building and construction industry in the State of Western Australia.

73    The term “Employee” is defined at cl 2 of the Brookfield Agreement as meaning, “an employee of the Employer who is engaged in any of the occupations or callings specified in the Award.”

74    The term “Employer” is defined at cl 2 of the Brookfield Agreement as meaning, “Brookfield Multiplex Australasia Pty Ltd; ABN: 33 146 787 395”.

75    The relevant respondents contend that the evidence before the Court is not sufficient to permit the Court to draw an inference that they were employed by Brookfield Australasia, instead of another company within the Brookfield Multiplex group.

76    The relevant respondents say that the direct evidence in support of this proposition includes:

(1)    While Mr McConkey asserts that the Brookfield Australasia respondents were employed by Brookfield Australasia, he admits that he only thinks that is the case because that is the name on the payslips and because it is a party to the Brookfield Agreement. Of course, they say the fact that Brookfield Australasia is a party to the Brookfield Agreement is not evidence that the Brookfield Australasia respondents were employed by Brookfield Australasia. Furthermore, and as acknowledged by counsel for the Director, the respondents say payslips on their own only prove who the payer is, and not who the employer is.

(2)    Mr McConkey’s evidence that he is employed by Brookfield Multiplex Constructions Pty Ltd, contradicting his evidence that Brookfield Multiplex Constructions Pty Ltd does not directly employ any individuals.

(3)    Mr O’Neill’s statement that he does not know whether the Brookfield Australasia respondents were employed by Brookfield Australasia, and merely assumes that to be the case.

77    These respondents submit that direct evidence that the Brookfield Australasia respondents may have been employed by another entity within the Brookfield Multiplex group is corroborated by other evidence before the Court, including:

(1)    The timesheets annexed to Mr McConkey’s first affidavit at SRM-5 are entitled “Multiplex Constructions Pty Ltd”, with each of the Brookfield Australasia respondents identified under “Employee name”.

(2)    The leave record in exhibit 8 is headed “Multiplex Constructions (WA) Pty Ltd”, and at the bottom of the page is signed on behalf of “Brookfield Multiplex Constructions Pty Ltd (WA)”, with each of the Brookfield Australasia respondents identified under “Employee Name”, and with the same “Employee Number” as listed in the timesheets annexed at SRM-5.

(3)    Mr McConkey and Mr O’Neill accept that, while wages are paid by Brookfield Australasia, they are paid through a software system called, “PayGlobal”, which is used to pay all employees of the Brookfield Multiplex group regardless of the employer.

(4)    No contracts of employment or letters of appointment have been adduced by the Director, which would ordinarily be the documents used to prove which entity employed the Brookfield Australasia respondents.

78    On the basis of this evidence, these respondents submit the Court cannot be comfortably satisfied that they were employed by Brookfield Australasia, instead of another entity within the Brookfield Multiplex group.

79    In my view, the evidence given by Mr McConkey and Mr O’Neill establishes on the balance of probabilities that the true employer of these respondents was Brookfield Australasia.

80    Mr McConkey explained that some discrepancies in this regard had entered into the documentation of members of the corporate group following the merger between Brookfield and Multiplex some years ago, but the correct position was that the relevant respondents, as indeed himself, were formally employed by Brookfield Australasia.

81    While the respondents point to some suggested inconsistencies in the evidence of Mr McConkey in the course of cross-examination, I do not construe the testimony relied upon in the way contended for, when his evidence is put in context and taken overall. As counsel for the Director points out, Mr McConkey on many occasions was pressed in cross-examination on this issue – ostensibly in the hope that he might falter in his evidence on a further iteration of it – but he was consistent in his responses.

82    It is understandable that, in the case of a large employer that operates within a corporate group, an employee of the company, including a senior employee like Mr McConkey, might, at times, more colloquially speak of the primary construction company as being the company they work for, and the more particular employing entity on others. For a person in such circumstances to say words to the effect that they work for company A but are employed by company B, is not a response necessarily to be marvelled at. The true position is not in doubt in this case, however: the relevant respondents were employed by Brookfield Australasia, as alleged by the Director, and I find accordingly.

83    The leave record which became exhibit 8 throws an element of confusion into the mix, as do the timesheets annexed by Mr McConkey at SRM-5, but as I say, the evidence, on the balance of probabilities, clearly enough indicates who the true employer was. Mr McConkey’s and Mr O’Neill’s testimony is persuasive in this regard.

84    This ground raised by the relevant respondents as to why the proceeding as against them should fail is therefore rejected.

CASC respondents

85    The CASC respondents were covered by the CASC Agreement. No issue arises in this regard.

The authorisation issue

Did CASC authorise or agree to the action of its employees?

86    As noted above, the authorisation issue is only raised by and in respect of the CASC respondents. These respondents contend that the Director has failed to prove that their employer did not authorise or agree to their action in being absent from work on 18 July 2013. They say this is despite evidence suggesting that authorisation was provided.

87    These respondents submit that the following evidence provides a reasonable basis for the Court to infer that CASC authorised or agreed to the CASC respondents being absent from work on 18 July 2013:

(1)    Mr Used, director of CASC, knew that some of the CASC respondents may not attend for work on 18 July 2013, but did not tell any of the CASC respondents that they could not go.

(2)    Mr Used had no objection if the CASC respondents were absent from work to go to a rally, and thought that the absence was “standard procedure” or at least had “happened on previous instances”.

(3)    When Mr Used had encountered similar absences from his employees in the past, he had never had any objection to it.

(4)    While Mr Used docked the pay of the CASC respondents, he only did so because he had been told in the past that he was required to do so.

(5)    While Mr Used lost a day of work, he was not troubled by that because CASC was “on program” and he did not say the CASC respondents could not go.

88    These respondents contend that Mr Used’s direct evidence to this effect is corroborated by the notations on the payslips annexed to his affidavit at LU-5, which list each of the CASC respondents as being “LWOP” on 18 July 2013, which is explained by Mr Used to mean “Leave Without Pay”.

89    These respondents say that, if the Court accepts their submission that authorisation or agreement under s 19(2)(a) can be given through custom or acquiescence, then there is clearly an available inference that the CASC respondents were authorised by their employer to be absent from work on 18 July 2013.

90    At the very least, they say, the evidence is such that the Director cannot be said to have discharged the onus upon him to prove that the absences of the CASC respondents on 18 July 2013 were not authorised by CASC. For those reasons, by virtue of the exception set out in s 19(2)(a) of the Act, they say the Court could not be satisfied to the requisite standard that the CASC respondents took “industrial action”, within the meaning of that term in s 19(1), in contravention of s 417(1) of the Act, on 18 July 2013.

91    In relation to the CASC respondents, the Director notes that Mr Used said in cross-examination that he knew the relevant respondents were not going to come to work because of the rally. He also gave evidence that he did not tell them that they could not go, and he did not have any objections to them going to the rally. The Director says this evidence needs to be seen in its context. The Director notes that Mr Used also said he did not think he could control the employees and “couldn’t hold them” from going to the rally. However, Mr Used made it clear, in his affidavit, that he could not recall providing any CASC respondents with authorisation not to work. The Director notes that this evidence was never squarely put to Mr Used in cross-examination, nor was it put to him that he in fact did authorise or agree to the relevant respondents not working on 18 July 2013. As a matter of fairness, the Director says the respondents cannot now say that Mr Used authorised, or agreed to, the CASC respondents not attending for work on 18 July 2013.

92    The Director contends that the highest that the evidence went, was that Mr Used did not tell the employees that they could not go. He says this does not amount to authorising or agreeing to action for the purposes of s 19(2)(a) of the Act. The Director says this is consistent with the dictionary definitions of the words “authorise” and “agree”, which require some positive act to authorise or agree. The Shorter Oxford English Dictionary (6th ed, 2007) defines:

(a)    ‘authorised’ as ‘legally or formally sanctioned, or appointed’ or ‘endowed with authority;’ and

(b)    ‘agreed’ as ‘arranged or settled, by common consent.’

93    The Director submits that the fact that the CASC respondents were docked pay is evidence that Mr Used did not authorise, or agree to, the employees’ absence. Further, he says there is no evidence that any of the CASC respondents even spoke to Mr Used about attending the rally, or that Mr Used in any way, by words or conduct, indicated to them that they could attend the rally such that s 19(2)(a) could even be engaged. He merely did not stop them, because he could not control them.

94    So far as construction of the expression “authorised or agreed to by the employer of the employees”, as it appears in s 19(2)(a) of the Act for the purposes of the s 19(1) definition of “industrial action”, the relevant respondents make the further submissions, as follows.

95    First, they observe that the phrase “authorised or agreed to” is drafted in broad terms. The Macquarie Dictionary (6th ed, 2013) defines “agree” to include “to yield assent; consent” and “authorise” to include “to establish by authority or usage: authorised by custom”. They say it is apparent from the broadness of those meanings, as well as the lack of any further prescriptive text in s 19(2)(a), that agreement or authorisation can be indicated by any type of conduct, including through implication, acquiescence and custom. They say the disjunctive use of “or” expands the type of conduct that might satisfy the exception in s 19(2)(a).

96    In contrast, they note that the definition of “building industrial action” in s 36(1) of the former Building and Construction Industry Improvement Act 2005 (Cth), specifically provided that authorisation or agreement needed to be “in advance and in writing”. They say the lack of similar, specific words in s 19(1)(a) of the Act, should be taken as an indication from Parliament that agreement or authorisation under s 19(2)(a) could be provided retrospectively, and by way of conduct other than in writing.

97    Consistent with the plain meaning of s 19(2)(a), as well as the considerations set out above, the relevant respondents submit that authorisation or agreement can be provided by an employer through custom, as well as by omissions, such as acquiescence.

98    Furthermore, the relevant respondents contend that, properly construed, s 19(2)(a) places the burden of disproving authorisation or agreement on the party alleging the industrial action, and that such a construction is supported by the text of s 19 and the legislative history of the provision.

99    In my view, whether the Director has proved an employer of the employees has “authorised or agreed to” relevant action for the purposes of s 19 of the Act, is a question of fact, having regard to all the evidence, in each case. Plainly enough the authorisation or agreement does not necessarily have to be in writing. Nor does it need to be given at any prescribed time before the action is taken. However, as a matter of common sense construction of the material words, the action must have been authorised or agreed to by the employer before the action was taken. I reject a construction that suggests an employer can retrospectively authorise or agree to the action.

100    It may well be that, in the particular circumstances of a case, the fact that customarily an employer allows employees to take action at a certain time or in certain circumstances may be relevant to the question of authorisation or agreement. Similarly, in the circumstances of a given case, the Court may find that an employer relevantly authorised or agreed to the action complained of despite the absence of express words of authorisation or agreement being proven in evidence.

101    In the circumstances of this case, however, there is no basis for suggesting that Mr Used, on behalf of CASC, either authorised or agreed to the action by CASC’s relevant employees which is complained of in this proceeding; he did not.

102    The most that can be said is that Mr Used, by his evidence, indicated that he suffered what CASC’s workers were apparently likely to do – that is to say, not attend for work as rostered on 18 July 2013 – because this sort of thing had happened in the past and he considered he had no “control” over it. At that point, according to his evidence, Mr Used was satisfied with the progress of the work CASC was undertaking. I construe his evidence to mean that he, in effect, had no alternative but to suffer whatever consequences flowed from the relevant CASC employees not attending work as rostered on 18 July 2013. He understood that their pay would be docked for failing to attend for work – as it was. The fact that the company record showed “LWOP” (leave without pay) on 18 July 2013 in respect of the relevant employees is neither here nor there. It was simply an administrative entry, not inferring or indicating that the company had authorised or approved their non-attendance at work as rostered on 18 July 2013.

103    The authorisation point therefore raised by these relevant CASC respondents fails on the facts.

104    Having regard to the evidence led by the Director, the Director has proved that CASC, the employer, did not authorise or agree to the action taken by its employees which is complained of by the Director in this proceeding.

The industrial character issue

What is “industrial action”?

105    It is submitted, as I understand it, on behalf of all relevant respondents that the Director has failed to prove, in any event, that the action each took, in not attending rostered work on 18 July 2013, constituted “industrial action” as properly construed under the Act.

106    The respondents submit that, in order for action to be “industrial action”, it must involve disputation or bargaining between an employer and employees.

107    The respondents note that, relevantly, “industrial action” is defined in s 19(1)(c) of the Act as “a failure or refusal by employees to attend for work or a failure or refusal to perform any work at all by employees who attend for work”. There is then, they say, the additional “requirement” that the refusal to attend or perform work must have an industrial character. In this regard, they refer to the note to s 19 which states:

In Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v The Age Company Limited, PR946290, the Full Bench of the Australian Industrial Relations Commission considered the nature of industrial action and noted that action will not be industrial in character if it stands completely outside the area of disputation and bargaining.

(Emphasis added by respondents in submissions.)

108    In the respondents’ submission, action will fall “completely outside the area of disputation and bargaining” if it does not involve a dispute between an employer and employee. They say this is because the Act, properly construed, is concerned with the regulation of workplace relations, being the relationships between employers and employees, and only with such relations, and s 19 must be construed within, and constrained by, this context. The statutory and extrinsic indicators that suggest this construction are said by the respondents to be as follows.

109    The respondents submit that the substantive chapters of the Act – Chs 2 and 3 – are solely concerned with and directed to the regulation of employers and employees and the relations between those two defined classes. Chapter 2 provides for terms and conditions of employment of employees by employers. Chapter 3 provides for the rights and responsibilities of employees, employers and organisations in relation to that employment.

110    The remaining chapters of the Act – Chs 4, 5 and 6 – the respondents say, support the substantive operation of the Act by providing for compliance with, and enforcement of, the Act (Ch 4), the administration of the Act by the establishment of the Commission and the Office of the Fair Work Ombudsman (Ch 5), and miscellaneous matters relating to workplace relations (Ch 6). They do not extend or depart from the substantive focus of the Act.

111    Notably, the respondents contend, within all of those chapters, every Part, except for the introductory Part, commences with a provision setting out the definition of employee and employer. See ss 11, 25, 42, 60, 133, 170, 259, 283, 301, 322, 335, 380, 407, 479, 523, 529, 538, 561, 574, 680, 720, 736, 742, 768AB, 770, 789AB and 791 of the Act. The respondents say this is by and large the only definitional provision included in each Part of the Act and that this emphasises that each Part is directed towards dealing with employers and employees in that defined relationship.

112    The respondents submit that the specific terms of s 417 also indicate that the prohibition in that section is directed towards employers and employees in that defined relationship.

113    Section 417(1) provides for the prohibition on industrial action where there is an enterprise agreement in force, “whether or not the industrial action relates to a matter dealt with in the agreement”. In a footnote to their written submissions, the respondents contend that this phrase must be read as extending only to matters that could be dealt with in an enterprise agreement, and that to so read that phrase is to construe it consistently with the object in s 3 of the Act which is to provide “a balanced framework for cooperative and productive workplace relations”.

114    They note s 417(2), however, states who the implied prohibition applies to: “an employer, employee, or employee organisation, who is covered by the agreement … ; or, an officer of an employee organisation that is covered by the agreement … acting in that capacity”.

115    The respondents, therefore, submit that the prohibition in s 417 is expressly stated to only apply to persons acting in their capacity as employers and employees, and only where those persons are bound in a mutual relationship under a specific enterprise agreement. They say it therefore cannot be directed towards prohibiting people who happen to be employees but participate, in their private capacity, in personal business or a rally, even if that occurs during work hours. They further say this is consistent with “industrial action” in s 19 being construed as involving disputes between employers and employees.

116    The respondents say that the use of phrases such as “industrial action” have long been interpreted in the industrial relations law of Australia as centring on matters relating to the relationship between employees and employers in their capacity as such; and refer to The Australian Tramway Employees Association v The Prahran and Malvern Tramway Trust and Others (1913) 17 CLR 680; [1913] HCA 53; R v Portus and Others; Ex parte Australia and New Zealand Banking Group Limited and Others (1972) 127 CLR 353; [1972] HCA 57; Re Alcan Australia Limited and Others; Ex parte Federation of Industrial, Manufacturing and Engineering Employees (1994) 181 CLR 96; [1994] HCA 34; Electrolux Home Products Pty Limited v The Australian Workers’ Union and Others (2004) 221 CLR 309; [2004] HCA 40. See further National Tertiary Education Industry Union v Commonwealth of Australia and Another (2002) 117 FCR 114 at [95]; [2002] FCA 441; Commonwealth Bank of Australia v Finance Sector Union of Australia (2006) 154 IR 467; [2006] FCA 1048. They contend parliament should be taken to have been aware of this “judicially settled meaning” when they adopted the term “industrial action” in the Act; and refer to this approach to construction in Electrolux at [8]-[11](Gleeson CJ).

117    The respondents contend that, if s 19(1) of the Act were interpreted as capturing a failure to attend work in order to attend a rally unrelated to the employer, or to attend to non-industrial matters such as family commitments, such a construction would tip the balance of enterprise agreements too far in favour of employers. Employees would be prohibited, on pain of civil penalty, from engaging in personal matters or disputes, even though those disputes were entirely unrelated to the employer/employee relationship. They say this would be inconsistent with the object of the Act, which, as stated in s 3, is to “provide a balanced framework for cooperative and productive workplace relations” (emphasis added by respondents in their submissions).

118    The respondents note that, importantly, employers will not be without recourse for employees who fail to attend or leave work to attend a political demonstration: employees may face sanction under their contract of employment. However, employees should not face sanction under provisions that are designed to deal with disputes and bargaining between employers and employees in that defined relationship.

119    The construction contended for by the respondents, they say, is supported by Klein v Metropolitan Fire and Emergency Services Board (2012) 208 FCR 178; [2012] FCA 1402, where Gordon J held, at [80], that the correct approach to s 19 was as follows:

First, there must be action. Next, for there to be industrial action the action must, at least to some extent, involve disputation and bargaining between employer and employee. Third, in that context, the action taken must satisfy one or more of the relevant definitions.

(Emphasis added by respondents in submissions.)

120    The respondents contend that comments recognising that action must be industrial in character in order to be “industrial action” under s 19(1) were also made by the Full Court in Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2015) 230 FCR 298 at [118]-[119]; [2015] FCAFC 25.

121    In dealing with the proper construction of the expression “industrial action”, the Director makes the following submissions.

122    First, the Director notes that in Director of the Fair Work Building Industry Inspectorate v Adams [2015] FCA 828, I considered the meaning of “industrial action” for the purposes of s 19(1) of the Act, and relevantly said, at [30]-[33]:

Section 19(1), including the note, has been set out above. The note, it might be said, is a little unusual in that it seemingly endorses a view that ‘industrial action’ does not include action that ‘stands completely outside the area of disputation and bargaining’. A note may be regarded by the Court when construing the text of an Act. This has not always been the case, but it seems now to be so. See generally the discussion in Pearce & Geddes, Statutory Interpretation in Australia (8th ed, LexisNexis, 2014) at [4.47] and [4.57].

Section 13(1) of the Acts Interpretation Act 1901 (Cth) makes it plain that all material from and including the first section of the Act to the end of the last section of the Act, where there are no schedules, or to the last schedule of the Act, where there are schedules, ‘is part of the Act’. I accept, however, as stated in Pearce & Geddes at [4.57], that the fact that a note is given the status of a part of the Act does not mean that the note can govern the text of the Act. See ... the recent decision of the Full Court dealing with the note in s 19 of the FW Act, to similar effect, Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2015) 320 ALR 61 at [118]; [2015] FCAFC 25.

In BHP Coal at [120], the Full Court added that, ultimately, the question posed by s 19(1) of the FW Act is whether action can be said to be ‘industrial’ in character. If action takes place outside the area of disputation and bargaining, that is relevant in determining whether the action is ‘industrial’, but it is not determinative.

I am guided by these authorities and, in particular, the recent decision of the Full Court in BHP Coal.

(As in original.)

123    The Director notes that in BHP Coal, the Full Court considered whether the promulgation by the union of an overtime policy at BHP’s workplace amounted to industrial action within the meaning of s 19 of the Act, and said, at [118]:

The note in s 19 of the FW Act indicates that the legislature intended The Age case to guide the determination of whether action is ‘industrial action’. But the fact that a note is part of the FW Act does not mean that it can govern the meaning of the FW Act. This is particularly the case here because, contrary to what is suggested by the note in s 19, the Full Bench did not hold that action would never be industrial in character if it stood outside the area of disputation and bargaining. As the Full Bench observed in The Age case, political strikes constitute such action. In Laing French J observed at 31:

Industrial action may be caught by the section notwithstanding that it is intended to send a signal or communicate some message other than about a dispute with the employer. It is not necessary for the application of s 127 [of the Workplace Relations Act 1996 (Cth)] that it relate to an industrial dispute if it relates to work regulated by an award or a certified agreement. Thus employees might stop work without the authority of their employer and in breach of their contract of employment in order to attend a rally at Parliament House or some other form of demonstration or public meeting to express views about some issue not arising out of their relationship to their employer. In such a case where their work is regulated by an award or a certified agreement, s 127 is capable of application.

124    The Full Court in BHP Coal then concluded at [120]:

Ultimately, the question posed by s 19(1) of the FW Act is whether action can be said to be ‘industrial’ in character. If action takes place outside the area of disputation and bargaining, that is relevant in determining whether the action is ‘industrial’, but it is not determinative.

125    The Director notes that in both Adams and BHP Coal, the Court relied on s 13 of the Acts Interpretation Act 1901 (Cth) to conclude that the “note” under s 19 is part of the Act and must therefore be taken into account in determining the meaning and scope of the words in s 19. Section 13 of the Acts Interpretation Act, in force as at the date of the decision in Adams and BHP Coal, did provide that the “note” is part of the Act. However, s 40A of the Act provides that the Acts Interpretation Act, as in force as at 25 June 2009, applies to the Act, and amendments made to the Acts Interpretation Act after that date do not apply. As at 25 June 2009, s 13(3) of the Acts Interpretation Act provided that no marginal note, footnote, or endnote is part of the Act. This would appear to have the effect, the Director observes, that the “note” to s 19 of the Act is not part of the Act. However, s 15AB of the Acts Interpretation Act may be relied on to have regard to the note as extrinsic material if the criteria in that section are met.

126    I accept that the analysis made by the Full Court in BHP Coal and by me in Adams as to the significance of a “note” in legislation failed to observe that s 40A of the Act provides that the Acts Interpretation Act as in force as at 25 June 2009 applies to the Act, and so amendments made to the Acts Interpretation Act after that date do not apply, with the result that s 13(3) of the Acts Interpretation Act as of that date provided that no marginal note, nor footnote or endnote is part of the Act. I do not, however, consider that this affects the broad substance of what was stated by either the Full Court in BHP Coal or by me in Adams. I say that whether or not the proposition put by the Director, that s 15AB of the Acts Interpretation Act may be relied upon to have regard to the note as extrinsic material, if the criteria in that section are met, is correct.

127    As to the note to s 19, and what the Full Bench of the Australian Industrial Relations Commission actually said and found in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v The Age Company Limited [2004] AIRC 445 (the Age case) as to the nature of “industrial action”, what was said by the Full Court at [116]-[120] of the BHP Coal judgment should be set out, as it relevantly binds me as a single judge of the Court (and I respectfully agree with it in any event – save as to the observation in [118] about the note being part of the Act):

116     In the case referred to in the note, The Age case, the Full Bench relevantly held at [46]:

It seems to us likely that the legislature did not intend to include conduct which stands completely outside the area of disputation and bargaining and that accordingly the definition should be read giving some weight to the word industrial. But precisely how far this qualification might extend is a question of degree. We do not think it is desirable that we go further than is necessary to decide this case. As is clear, we have not found it necessary to go beyond the words of the definition.

117     The Full Bench’s comments are best understood in the context in which they were made. At [44]–[45], the Full Bench remarked:

44.     Just as employer conduct is capable of different characterisations depending upon the context, so also is employee conduct. An employee who does not attend for work on account of illness may not be engaging in industrial action, while an employee who does not attend for work in support of a collective demand that the employer agree to alteration of the conditions of employment clearly is so engaged.

45.     In a statutory context which is concerned with industrial disputation and enterprise bargaining it might fairly easily be concluded that a definition of industrial action is intended to be confined to action which occurs in the course of an industrial dispute or bargaining in relation to a demand concerning the conditions to be afforded by an employer to its employees. If such were the case, however, as counsel for the unions pointed out, so-called political strikes may not be amenable to an order pursuant to s 127 — a conclusion at odds with a number of Commission decisions and with the decision of the Federal Court of Australia in [Laing].

(Citations omitted.)

118     The note in s 19 of the FW Act indicates that the legislature intended The Age case to guide the determination of whether action is “industrial action”. But the fact that a note is part of the FW Act does not mean that it can govern the meaning of the FW Act. This is particularly the case here because, contrary to what is suggested by the note in s 19, the Full Bench did not hold that action would never be industrial in character if it stood outside the area of disputation and bargaining. As the Full Bench observed in The Age case, political strikes constitute such action. In Laing French J observed at 31:

Industrial action may be caught by the section notwithstanding that it is intended to send a signal or communicate some message other than about a dispute with the employer. It is not necessary for the application of s 127 [of the Workplace Relations Act 1996 (Cth)] that it relate to an industrial dispute if it relates to work regulated by an award or a certified agreement. Thus employees might stop work without the authority of their employer and in breach of their contract of employment in order to attend a rally at Parliament House or some other form of demonstration or public meeting to express views about some issue not arising out of their relationship to their employer. In such a case where their work is regulated by an award or a certified agreement, s 127 is capable of application.

119     These comments were made in relation to the WR Act, but the definition of ‘industrial action’ in the FW Act is not relevantly different.

120    Ultimately, the question posed by s 19(1) of the FW Act is whether action can be said to be ‘industrial’ in character. If action takes place outside the area of disputation and bargaining, that is relevant in determining whether the action is ‘industrial’, but it is not determinative.

128    As the Full Court emphasise at [118], the Full Bench in the Age case did not hold that action could never be industrial in character if it stood outside the area of disputation and bargaining. As the Full Court said, at [120], ultimately the question is whether action can be said to be “industrial” in character. If action takes place outside the area of disputation and bargaining, that is relevant in determining whether the action is “industrial”, but it is not determinative. In my view, that must be so.

129    As the Full Court, and the Full Bench in the Age case, seem readily to have acknowledged, without any detailed analysis, a “political strike” – for example, when an employee attends a rally or some other form of demonstration or public meeting to express views about some issue not arising out of their immediate relationship with their employer – seems broadly to have been accepted as falling within the definition of “industrial action” (as defined by relevant legislation at material times).

130    It might be observed that one reason why that might be the case, is that the industrial “muscle” of organised labour is intended to be used in such cases to add weight to the advancement of broader political issues. In such circumstances, it may well be open to conclude that an employee, by withdrawing his or her labour, or threatening to do so, in support of broad political objectives, engages in “industrial action” for the purposes of s 19. In that regard, what might be called the object of the industrial action is not relevant.

131    In this case, the rally in question was not concerned with broader political issues, but was one organised by a union, the CFMEU, and was concerned with wages and conditions on work sites controlled by John Holland. The rally had clear and obvious industrial objectives. For an employee of an employer, other than John Holland, to not attend work because of the rally, in my view, would similarly be capable of being characterised as action that is industrial in character – whether or not the employee chose to attend the rally. That is because the employee’s labour is withdrawn, in this case, because of a rally with industrial objectives.

132    As to what was said by Gordon J in Klein, that for there to be industrial action the action must, at least to some extent, involve disputation and bargaining “between the employer and the employee”, upon which the respondents rely, two things may be said. First, the context in which her Honour stated this had a very particular statutory context, not the present one. Secondly, what her Honour said runs counter to what the Full Court said in BHP Coal, by which I am bound. Accordingly, and with respect, I would not apply her Honour’s dicta from Klein.

Were the actions of the CASC and Brookfield Australasia respondents at the Midland project site on 18 July 2013 industrial in character?

133    The relevant respondents submit that the Director has adduced no evidence as to what they did on 18 July 2013, beyond being absent from work.

134    The CASC respondents say there is an imputation that they may have attended a rally, but there is no evidence that they did so. In fact, they say there is no evidence that any of the CASC respondents were even aware that a rally was being organised or held that day. While evidence is given by Mr O’Neill that a meeting was conducted at the site on 16 July 2013 by Mr Joseph McDonald, they say there is no evidence that any of them attended that meeting. Furthermore, they say Mr O’Neill admits that he does not know what was said at that meeting, and that there is also no evidence that any of the relevant respondents were aware of the Facebook post annexed to the affidavit of Mr Stanley dated 29 February 2016 at CRS-2. They also contend there is no evidence that any of the CASC respondents were members of the CFMEU, and note that Mr Used specifically stated that he could give no evidence about what any of the CASC respondents did that day, except to say that they were absent from work.

135    These respondents submit that, in view of the lack of evidence, it is equally open to the Court to conclude that each of the relevant respondents was absent from work because they took action that was not industrial in character. They say the Court simply could not draw an inference as to what the CASC respondents did on 18 July 2013 on the basis of the available evidence.

136    Additionally, they note that Mr Used states that there were no industrial issues or disputes between CASC and the CASC respondents at that time. They say there is therefore no evidence to suggest that their absences from work were in pursuit of any disputation between CASC and the CASC respondents; that is, within the context of the employer/employee relationship to which, they say, the prohibition in s 417(1) is directed.

137    In that respect, these respondents submit that the facts of this proceeding are distinguishable from Adams. In Adams, it was found that it was open to the Court to infer that the employees in that case had attended a rally about pay and conditions of work, or had been motivated by a dispute over whether they would be docked pay due to a late start, and that they had been aware of those disputes.

138    By contrast, these respondents submit, in this case the evidence in relation to the rally on 18 July 2013, is that it concerned a dispute between the CFMEU and John Holland at the Perth Children’s Hospital site. They say there is no evidence before the Court that the dispute between the CFMEU and John Holland was known to, or had any relevance to, the CASC respondents. They note that despite extensive video and photographic evidence, no attempt has been made by the Director to identify any of the relevant respondents at the rally. They say there is no evidence in this case that could allow inferences to be drawn in the same manner as in Adams, and that, even if the Court was somehow able to draw the inference that some of the CASC respondents attended the rally, the rally was not industrial in character because it was not a dispute that fell within the bounds of employer/employee disputation.

139    Finally, these respondents say the Director has not given any notice in writing to the CASC respondents under s 98 of the Evidence Act of his intention to adduce or rely on coincidence evidence. Accordingly, they say it is not open to the Court to draw any inference from the fact that each of the CASC respondents were absent from work on the same day. They submit that the evidence must be assessed in relation to each of the CASC respondents separately and individually, paying no regard to the evidence or facts in relation to other respondents.

140    For these reasons, the CASC respondents submit that the Court cannot be satisfied that the actions of the CASC respondents on 18 July 2013 were industrial in character so as to found a contravention of s 417(1).

141    The respondents referred to above as the Brookfield Australasia respondents make similar submissions. They also contend that the Director has failed to prove that they took action that was industrial in character.

142    These respondents say the Director has adduced no evidence as to what they did on 18 July 2013, save for Mr McCullough.

143    They say there is an imputation that they may have attended a rally, but there is no evidence that they did so, save for Mr McCullough.

144    As do the CASC respondents, they say, in view of the lack of evidence, it is equally open to the Court to conclude that each of them was absent from work because they took action that was not industrial in character. They say the Court simply cannot draw an inference as to what they did on 18 July 2013, on the basis of the available evidence.

145    They make the same submissions in relation to Adams as do the CASC respondents.

146    They further contend that even Mr McCullough’s attendance at the rally cannot be considered industrial in character because it was not taken in the context of a dispute between him and his employer.

147    Finally, they too say the Director has not given any notice under s 98 of the Evidence Act in relation to coincidence evidence and it is not open to the Court to draw any inference from the fact that each of the Brookfield Australasia respondents were absent from work on the same day or that Mr McCullough attended the rally (except as against him). They submit that the evidence must be assessed in relation to each of them separately and individually, paying no regard to the evidence or facts in relation to other respondents.

148    They submit the Court cannot be satisfied that their actions on 18 July 2013 were industrial in character, so as to found a contravention of s 417(1).

149    The Director, in the case of not only the CASC respondents but also in relation to the employees he describes as the Brookfield Midland respondents, the Brookfield Murdoch respondents, the FCL Midland respondents and the FCL Murdoch respondents, says that each did not attend for work or perform work on 18 July 2013 by reason of, and in the context of there being, that day, the rally conducted by the CFMEU at the Perth Children’s Hospital project site.

150    The Director accepts that, with the exception of the first respondent, Mr McCullough, there is no direct evidence that any of the individual respondents attended the rally, or an explanation of why they did not attend for work. Rather, the Director submits that the Court ought to draw an inference that the respondents did not attend for work by reason of, or in the context of, there being the rally. In Mr McCullough’s case, it is submitted, he did not attend for work plainly for that reason.

151    The Director refers to the circumstances in which a court can draw an inference as set out by the High Court in Luxton v Vines (1952) 85 CLR 352; [1952] HCA 19; Strong v Woolworths Limited and Another (2012) 246 CLR 182 at [34] (French CJ, Gummow, Crennan and Bell JJ); [2012] HCA 2; and Australian Competition and Consumer Commission v Metcash Trading Ltd and Another (2011) 198 FCR 297 at [30]-[32] (Buchanan J); [2011] FCAFC 151. In Luxton, Dixon, Fullagar and Kitto JJ said, in relation to drawing inferences in civil proceedings, quoting the High Court’s judgment in Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1, at 358:

The difference between the criminal standard of proof in its application to circumstantial evidence and the civil is that in the former the facts must be such as to exclude reasonable hypotheses consistent with innocence, while in the latter you need only circumstances raising a more probable inference in favour of what is alleged. In questions of this sort, where direct proof is not available, it is enough if the circumstances appearing in evidence give rise to a reasonable and definite inference: they must do more than give rise to conflicting inferences of equal degrees of probability so that the choice between them is mere matter of conjecture: see per Lord Robson, Richard Evans & Co. Ltd. v. Astley (footnote omitted). But if circumstances are proved in which it is reasonable to find a balance of probabilities in favour of the conclusion sought then, though the conclusion may fall short of certainty, it is not to be regarded as a mere conjecture or surmise: cf. per Lord Loreburn (footnote omitted).

152    The Director submits that the Court ought infer that each of the individual respondents did not attend for work on 18 July 2013 by reason of, and in the context of there being that day, the rally. This inference, the Director submits, in his written submission, is available to be drawn, and is the more probable inference, by reason of the following factors:

(1)    On 16 July 2013, Mr McDonald attended the Midland project site and addressed the employees. Mr McDonald is a senior CFMEU official who later attended the rally.

(2)    On 17 July 2013, Mr McCullough had a conversation with Mr O’Neill on the Midland project site during which Mr O’Neill asked Mr McCullough, “what was going on with the rally being held at the children’s hospital”. In response to being so asked, Mr McCullough told Mr O’Neill that “Dave Noonan is attending and the workers were congregating at 6 am”. Mr McCullough also told Mr O’Neill “that the nurse, the nipper and the gateman would be attending site on the 17th to keep the site open for other trades”. The Director says this conversation makes it clear that Mr McCullough was of the view that the Midland project site employees would not be attending work on 18 July 2013 by reason of the rally.

(3)    Mr McCullough was the CFMEU delegate at the Midland project site, and Branch President of the CFMEU Construction and General Division, Western Australia Divisional Branch. He was in a position of authority and a representative of the construction employees on the Midland project site. The Director says Mr McCullough’s views about the site being shut, and why, ought to be given significant weight.

(4)    On 17 July 2013, there was on the CFMEU WA’s Facebook website, a reference to the rally which included the words: “This Thursday morning July 18th at 6am - all CFMEU members welcome - be there.” [emphasis added]

(5)    None of the Brookfield Australasia respondents, the FCL Midland respondents, the FCL Murdoch respondents or the CASC respondents attended work at the Midland project site and Murdoch project site that day. The Director says the alternative explanation for all of these employees not attending work by reason of or in the context of the rally, is that, by mere coincidence, none of the respondents happened to attend for work that day for various other reasons. He says this is inherently improbable.

(6)    The CFMEU did, in fact, conduct the rally on 18 July 2013. Mr McCullough attended the rally. At the rally, Mr Buchan and Mr Noonan both discussed wages, penalty rates, and safety on John Holland’s sites. The Director says these are clearly industrial matters.

153    In oral submissions, counsel for the Director accepted that there was no evidence that any of the respondents, apart from Mr McCullough, was a CFMEU member or that any of them had had regard to the Facebook page referred to in (4) of the preceding paragraph.

154    But the Director submits that the overall inference is strengthened, and can be more confidently drawn, because the individual respondents themselves, who were able to reveal the true nature of the reasons why they did not attend for work, did not give evidence as witnesses in this proceeding, and there was no explanation for their absence. In this regard, the Director relies on the “rule” in Jones v Dunkel and Another (1959) 101 CLR 298; [1959] HCA 68, which can be applied, it is submitted, notwithstanding that this is a civil penalty proceeding. See Australian Securities and Investments Commission v Rich and Another (2009) 236 FLR 1 at [459]-[463]; [2009] NSWSC 1229; Australian Competition and Consumer Commission v Universal Music Australia Pty Ltd and Others (2001) 115 FCR 442 at [33]; [2001] FCA 1800; Australian Securities and Investments Commission v Fortescue Metals Group Ltd (No 5) (ACN 002 594 872) and Another (2009) 264 ALR 201 at [101]; [2009] FCA 1586 (appeal allowed but not on this point); In the matter of Idylic Solutions Pty Ltd - Australian Securities and Investments Commission v Hobbs [2012] NSWSC 1276 at [1535]-[1537]; Chong & Neale v CC Containers Pty Ltd & Ors [2015] VSCA 137 at [206]-[229] (although in this last case, the Court did not have to definitively decide the issue).

155    The Director therefore submits that the Court can be satisfied the reasonable and definite inference (as distinct from conflicting inferences of equal degrees of probability), is that the respondents did not attend for work on 18 July 2013 by reason of, and in the context of there being, that day, the rally. Further, he says the rally was an industrial rally, dealing with industrial issues, thereby giving the failure to attend for work the industrial character referred to in Adams and BHP Coal.

156    The Director rejects the respondents’ contention that it is not open to the Court to rely on “coincidence evidence” – to the effect it was no coincidence that the individual respondents failed to attend their workplace on the day of the CFMEU rally.

157    Following closing submissions, the Court invited the parties to make further submissions about the function and effect of s 98 of the Evidence Act, and the coincidence rule, in a case such as the present.

158    Section 98 of the Evidence Act provides:

(1)     Evidence that 2 or more events occurred is not admissible to prove that a person did a particular act or had a particular state of mind on the basis that, having regard to any similarities in the events or the circumstances in which they occurred, or any similarities in both the events and the circumstances in which they occurred, it is improbable that the events occurred coincidentally unless:

(a)     the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party’s intention to adduce the evidence; and

(b)     the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value.

Note:     One of the events referred to in subsection (1) may be an event the occurrence of which is a fact in issue in the proceeding.

(2)     Paragraph (1)(a) does not apply if:

(a)     the evidence is adduced in accordance with any directions made by the court under section 100; or

(b)     the evidence is adduced to explain or contradict coincidence evidence adduced by another party.

Note:     Other provisions of this Act, or of other laws, may operate as exceptions to the coincidence rule.

159    The first question that arises is whether s 98(1) has application in the circumstances of this case.

160    Section 98(1), as the text set out above discloses, is concerned with the admissibility of evidence that two or more “events” occurred in order to prove that a person “did a particular act” or “had a particular state of mind” on the basis that, having regard to any similarities in the events or the circumstances in which they occurred, “it is improbable that the events occurred coincidentally”.

161    In this case, it seems clear enough, despite the initial submission made on behalf of the Director that there is only one event – namely, the rally – there were, in fact, two or more events – being the failure of all the individual respondents to attend for work on the day the CFMEU had organised the rally.

162    The evidence is, therefore, in respect of “2 or more events”.

163    There is no doubt, having regard to the submissions of the Director, that the Director wishes to rely on the similarity of the event of each of the individual respondents in not turning up to work on the same day that the CFMEU had organised the rally to support a finding that this was no coincidence, and that each respondent did not attend work because of the rally; that that was their state of mind in each case.

164    I consider the coincidence rule dealt with by s 98 applies in these circumstances. That means that the evidence sought to be relied on for the purpose of coincidence reasoning, is not admissible unless the provisos in (a) and (b) of s 98(1) of the Evidence Act are satisfied or, so far as (a) is concerned, a direction is made under s 100 or the evidence is adduced to explain or contradict coincidence evidence adduced by the respondents.

165    Proviso (a) requires that the party seeking to adduce the evidence, give reasonable notice to the other party of its intention to adduce the evidence. No formal notice was given in this case, in accordance with reg 6(3) of the Evidence Regulations 1995 (Cth). It is also noted that R 30.32 of the Federal Court Rules 2011 (Cth) provides that a notice of intention to adduce evidence under s 98(1) of the Evidence Act must be in accordance with Form 65. No such formal notices were given.

166    However, the Director submits that reasonable notice of his intention to adduce the coincidence evidence for the purposes of s 98(1)(a) was given when one takes together the content of the following documents:

(1)    The statement of claim itself, which identifies the allegation that the individual respondents engaged in industrial action within the meaning of the term in s 19 of the Act, which required the absence from work to be “industrial in character”.

(2)    The affidavit evidence put on by the Director, which set out the evidence of the events and circumstances by which the Director intended to prove the absence from work was industrial in character. The Director conveyed the allegation that the individual respondents were motivated by the rally or by the fact that the rally was being conducted, and this was clear to the respondents. The affidavits, the Director says, included the date, time, place and circumstances of the events.

(3)    The Director’s opening outline of submissions set out the events, that is, that the individual respondents did not attend for work on 18 July 2013, and that this was one of a number of factors that supported an inference that tended to establish that the individual respondents were motivated by the rally, or the by the fact the rally was on, whether or not they attended it, in not attending for work.

167    The respondents submit that these documents taken individually, or together, do not provide notice of the intention to lead coincidence evidence, for the following reasons:

(1)    The statement of claim is pleaded on the basis that “each of” the respondents contravened the Act by engaging in industrial action. While the Director uses categories for simplicity, there is no pleading to the effect that the respondents acted together or in concert. The case is pleaded that “each of” the respondents individually and separately engaged in industrial action. There is no suggestion, the respondents submit, that the Director will rely on the coincidental nature of the respondents’ absences for the drawing of any inferences, including about the industrial character of the absences.

(2)    The affidavit evidence concerning each respondent’s absence from work is admissible against that particular respondent to prove absence from work and there is nothing in the affidavit evidence to indicate the evidence is to be used for a coincidence purpose.

(3)    The Director’s submission that none of the respondents attended for work, is no more than a submission that links the absence of each respondent to there being a rally on that day. No reference is made to reasoning that would have regard to improbability or coincidence. There was nothing to alert the respondents to an intention by the Director to rely on any particular evidence for a coincidence purpose.

168    In my view, the respondents’ submissions concerning whether or not the materials provided prior to the hearing in substance put the respondents on notice of intention to lead the particular coincidence evidence, should be accepted. Nowhere was it explicitly, or in sufficiently unambiguous terms, made clear before the hearing that the Director was wishing to rely on evidence led in order to contend that it was not by coincidence that each of the individual respondents failed to attend work on the relevant day by reason of the holding of the rally. That specific proposition was only put in the written closing submissions of the Director at the conclusion of the cases of the parties.

169    Section 100(2), however, enables the Court, on the application of a party, to direct that the coincidence rule is not to apply to particular coincidence evidence, despite the party’s failure to give notice under s 98.

170    Subsection 100(3) makes it plain that the application for this direction may be made “either before or after the time” by which the party would, apart from s 100, be required to give or to have given the notice. That makes it tolerably clear that it is open to the Director after the closing of the evidence to seek the direction. At the hearing of the further submissions concerning the application of s 98 in these proceedings, the Director made that application.

171    Subsection 192(2) of the Evidence Act provides that in deciding whether to grant leave or make a direction under the Evidence Act, the Court is to take into account a range of factors, including the extent to which it would be unfair to a party (para (2)(b)) and the importance of the evidence the subject of the direction (para (2)(c)).

172    It is plain that the probative value of any such evidence must be considered. A lack of probative value is a reason why the Court will not admit coincidence evidence, notwithstanding the satisfaction of para 98(1)(a), by virtue of para 98(1)(b).

173    Also relevant under s 192, is the nature of the proceeding (para (d)) and the power of the Court to adjourn the hearing or to make another order or to give a direction in relation to the evidence (para (e)).

174    In these circumstances, taking into account the probative value of the relevant evidence and the circumstances, I considered it was appropriate to make a direction under s 100(2) of the Evidence Act that the coincidence rule was not to apply to the particular coincidence evidence relied upon by the Director identified above, despite the Director’s failure to give notice under s 98.

175    However, para 100(5)(b) requires a direction under that section to be given “either at or before the hearing” (emphasis added). As such, I resumed the hearing on 9 September 2016 in order to make the following orders:

1.    I find that s 98 of the Evidence Act 1995 (Cth), that deals with the coincidence rule, applies in the circumstances of this hearing.

2.    I find the applicant has not given reasonable notice of intention to adduce coincidence evidence for the purposes of s 98(1)(a) of the Evidence Act, that coincidence evidence being, put generally, that the fact that numerous respondents failed to attend for work on the same day as the rally did not occur by coincidence.

3.    The Court, noting that it has the power under s 100(2) of the Evidence Act, on the application of a party, to direct that the coincidence rule is not to apply to particular coincidence evidence despite the party’s failure to give notice under s 98, and that under s 100(3) the application may be made either before or after the time by which the party would, apart from this section, be required to give, or to have given, the notice, and noting that the applicant has applied for such a direction at the hearing on 15 August 2016, and that under s 100(5)(b) the direction may be given either at or before the hearing, and noting also that the Court has taken into account in deciding whether to give a direction to the matters set out in s 192(2), directs that the coincidence rule is not to apply to the particular coincidence evidence stated in (2) above, despite the applicant’s failure to give notice under s 98.

4.    In these circumstances, the hearing will be adjourned pending the election of the respondents to call evidence dealing with the coincidence evidence in question, such election to be notified by a notice of election to be filed in the Court by Friday 30 September 2016.

5.    In the event that the respondents elect not to call further evidence in relation to the coincidence evidence, the hearing will be at an end and judgment in the proceeding will be reserved.

6.    In the event the respondents elect to call further evidence the hearing will be relisted on a date to be fixed.

176    The respondents elected to not call evidence in light of the direction made under s 100(2).

177    In my view, despite the fact that the relevant Midland CASC employees and Brookfield Australasia employees have not been shown by direct evidence to have been at the rally organised by the CFMEU, or to have read or have been aware of the Facebook encouragement of the CFMEU to attend the rally, or indeed to have been members of the CFMEU, the reasonable, if not irresistible, inference is, in all the circumstances, that the absence from work of each of them is reasonably to be inferred to have been because of the conduct of the rally by the CFMEU on 18 July 2013.

178    On 16 July 2013, Mr McDonald attended the Midland project site and addressed employees. About that there is no dispute. Mr McDonald was a senior CFMEU official and he later attended the rally.

179    Then the next day, 17 July 2013, Mr McCullough had a conversation with Mr O’Neill at the Midland project site during which Mr O’Neill effectively asked Mr McCullough “what was going on with the rally being held at the children’s hospital”. Mr McCullough said words to the effect that Mr Noonan was attending and the workers were congregating at 6am. He also told Mr O’Neill that the nurse, the nipper and the gateman would be attending site (that is, the Midland project site) on the 18th to keep the site open for other trades. This, in my view, is significant evidence.

180    I accept the submission made by the Director that this conversation makes it clear that Mr McCullough was of the view that the Midland employees, at least, would not be attending work on 18 July 2013 because of the calling and conduct of the rally.

181    At material times, Mr McCullough was the CFMEU delegate at the Midland project site. He was also a Branch President of the CFMEU Construction and General Division, Western Australia Divisional Branch – although I accept it is not proved other respondents knew this at material times. I accept the submission that he was in a position of authority and a representative of the construction employees on the Midland project site. His views about the site being shut, and why, are of significance when it comes to the drawing of an inference concerning the impugned action of relevant respondents at the Midland project site.

182    The rally was then held on 18 July 2013. Mr McCullough attended the rally and not work. At the rally, Mr Buchan and Mr Noonan of the CFMEU both spoke and discussed wages, penalty rates, and safety on John Holland’s sites.

183    Given that none of the relevant respondents at the Midland project site attended for rostered work on 18 July 2013, the reasonable inference is open to be drawn that each chose not to attend for their rostered work on 18 July 2013 because of the rally. It is reasonable to add that the absence from work of each of these employees on the day of the rally, when considered in the context of the above evidence, was no coincidence and bolsters the finding that relevant employees were absent from work that day because of the rally. The fact that none of the relevant respondents went into evidence enables the Court more confidently to draw the inference. In this case, I draw the inference.

184    It is not necessary to lay down any hard and fast rules as to what hypothetical actions may or may not be within the proper construction of the expression “industrial action” as it appears in s 19(1) of the Act. As noted above, whether every form of “political strike”, as it was envisaged by the Full Bench in the Age case and referred to by the Full Court in BHP Coal, falls within the expression, need not be decided here. What has to be decided here is whether, on the facts of this case, the failure of the relevant Midland respondents to attend rostered work on 18 July 2013, in accordance with the relevant enterprise agreements, had an industrial character to it.

185    I find that, on the material facts led by the Director, the action of the Brookfield Australasia respondents and the CASC respondents at the Midland project site in not attending for work on 18 July 2013, because of the rally, and its nature, was “industrial action”.

Were the actions of the Brookfield Australasia respondents at the Murdoch project site on 18 July 2013 industrial in character?

186    Essentially for the reasons given above, I find that on the material facts provided by the Director, the action of the Brookfield Australasia respondents at the Murdoch project site in not attending for work on 18 July 2013, was also “industrial action”.

187    While Mr McDonald and Mr McCullough did not attend or speak, respectively, at the Murdoch project site before the rally, the primary facts permit the same inference to be drawn. The events described above, including Mr McDonald’s attendance at the Midland project site, what Mr McCullough told Mr O’Neill, and the fact the rally was being conducted by the CFMEU on 18 July 2013, followed by the absence from work of all the Murdoch employees, as well as the Midland employees, provides a factual basis upon which the reasonable inference can be drawn that the Brookfield Australasia employees at the Murdoch project site failed to attend work on 18 July 2013 because of the rally. I draw that inference. It can hardly have been coincidence that all these employees failed to attend to work on the same day as the rally. That none of them have gone into evidence as to why they did not attend work, is something that reinforces the drawing of the inference.

Other respondents?

188    If the Court had found the alleged FCL employees were in fact FCL employees (which it has not) the Court would similarly have found their failure to attend for work on 18 July 2013 was “industrial action” for these same reasons.

Conclusion

189    The following conclusions flow from the above findings:

(1)    The Director has not proved that the respondents who the Director pleads were FCL Midland and FCL Murdoch employees were employed by FCL and for that reason the allegations that each contravened s 417(1) of the Act by reason of their actions on 18 July 2013 fails.

(2)    The allegations that each of the Brookfield Australasia respondents and the CASC respondents contravened s 417(1) of the Act by their actions on 18 July 2013, are made out.

Orders

190    In these circumstances, the declarations and orders sought should be made against the respondents, not including the FCL respondents and those against whom the proceeding has been discontinued. The following orders would appear appropriate:

(1)    As against the 1st, 2nd, 3rd, 4th, 5th, 7th, 8th, 10th, 12th, 13th, 15th, 18th, 21st, 23rd, 24th, 27th, 28th, 29th, 31st, 32nd, 33rd, 35th, 37th, 39th, 40th, 41st, 43rd, 45th, 49th, 50th, 51st, 52nd, 53rd, 54th, 59th, 60th, 61st, 62nd, 63rd, 64th, 65th, 66th, 67th, 68th, 70th, 71st, 73rd, 74th, 77th, 81st, 84th, 85th, and 86th respondents, there be declarations that each contravened s 417 of the Fair Work Act 2009 (Cth).

(2)    The matter be re-listed to hear from the parties as to what pecuniary penalties, if any, should be imposed pursuant to s 546 of the Act on each of those respondents for the declared contraventions.

Associate:

Dated:    2 November 2016

SCHEDULE OF PARTIES