FEDERAL COURT OF AUSTRALIA

Australian Building and Construction Commissioner v Australian Manufacturing Workers’ Union (The Australian Paper Case) [2017] FCA 167

ORDERS

THE COURT ORDERS THAT:

1.    The proceeding be listed at a time and date to be notified for the purpose of receiving the parties’ submissions on the terms of the orders proper to reflect the reasons of the court published this day, and as to penalties.

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

REASONS FOR JUDGMENT

JESSUP J:

INTRODUCTION

1    In this proceeding, the applicant, the Australian Building and Construction Commissioner, alleges that the respondents, the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (known as The Australian Manufacturing Workers’ Union (AMWU)) (“the AMWU”), the Construction, Forestry, Mining and Energy Union (“the CFMEU”), The Australian Workers’ Union (“the AWU”), Steve Dodd, Toby Thornton and Jeff Sharp, contravened ss 346, 348, 417(1) and 421(1) of the Fair Work Act 2009 (Cth) (“the FW Act”) by conduct taken at the site of the installation of a de-inking plant by Paper Australia Pty Ltd at its Maryvale Mill at Morwell in March 2014. The AMWU, the CFMEU and the AWU (together, “the unions”) are organisations registered under the Fair Work (Registered Organisations) Act 2009 (Cth), and, at relevant times, Messrs Dodd, Thornton and Sharp were organisers employed by them respectively.

2    At the time of the events which became controversial in this proceeding, Paper Australia Pty Ltd, which traded as Australian Paper (“AP”), was in the course of installing and commissioning a second-hand de-inking plant facility at the Maryvale site. BMC Welding & Construction Pty Ltd (“BMC”) had been engaged to provide and to complete the mechanical piping installation works, and John Beever (Aust) Pty Ltd (“JBA”) had been engaged to provide and to complete the mechanical and steelwork installation works, on the project. Those companies employed in excess of 60 employees and 20 employees, respectively, on this work. The standard rostered working week for these employees was 56 hours, made up of ten hours each day from Monday to Thursday (eight hours at ordinary time until 3.30 pm and two hours of overtime thereafter) and eight hours on each of Friday (as ordinary time) and Saturday (as overtime). These employees were covered by enterprise agreements approved under the FW Act, the nominal expiry dates of which had not passed: either the BMC Welding & Construction and AMWU/CFMEU Metal Engineering On-Site Construction Agreement 2011-2014 or the John Beever (Aust) Pty Ltd/AMWU/CFMEU Metal Engineering On-Site Construction Agreement 2011-2014 as relevant. The AMWU and the CFMEU were also covered by both of these agreements.

3    The site of the installation of the de-inking plant (to which I shall refer as “the site”) was a defined area within the much larger site of the Maryvale Mill operated by AP. It had its own entry gate (to which I shall refer as “the site gate”), while the entrance gate to the mill site as a whole (to which I shall refer as “the mill gate”) was some distance away (about 800-1000 m, in the estimate of some of the witnesses). Adjacent to, but external to, the site was a car park where employees and others having recourse to the site parked their cars. This car park was also external to the overall mill site.

4    A circumstance of some significance to the events which led to this litigation is that there was no separate builder, or head contractor, engaged by AP for this construction project. The functions normally carried out by, and the responsibilities normally discharged by, such an entity were, or ought to have been, carried out and discharged by AP itself. During construction, it was AP which had control of the site. I shall return to this aspect as required in my reasons below.

5    At the site, there were several designated work groups established under Div 1 of Pt 7 of the Occupational Health and Safety Act 2004 (Vic) (“the OHS Act”), each with its own health and safety representative (“HSR”) elected under s 54 of that Act. Three such groups are relevant in the present case. The first group consisted of the employees of JBA on the site. Jordan Trobeckie was the HSR for that group, but, at presently material times, he was absent from work and his deputy, Michael Cuddy, a crane driver/rigger, was acting in his stead. It is Mr Cuddy who was centrally involved in the matters which gave rise this proceeding. The second group consisted of those employed by BMC in what I shall describe as the mechanical trades. David Cockrane, a rigger/scaffolder, was the HSR for that group. And the third group consisted of those employed by BMC in the electrical trades, to whom I shall refer as the electricians. Adam Robertson, an A grade electrician, was the HSR for that group.

6    To the extent necessary, I shall refer to the terms of this legislation in due course. I note at this stage, however, that, in particular circumstances and subject to specified conditions, s 74 of the OHS Act empowers the HSR for a designated work group to direct the cessation of work which involves an immediate threat to the health or safety of any person.

7    The present controversy had its genesis at about 9.00 am on Saturday 22 March 2014 when Steven Birrell, employed by BMC as an electrician on the site, sustained a cut to what was alleged, and admitted, to be “his left hand/wrist area” in the course of his work. Neither he nor anyone who witnessed how he sustained this injury gave evidence. It is established on the pleadings, however, that he was taken to and treated at AP’s first aid facility (located at the mill gate), and was then taken to the casualty section of the Latrobe Regional Hospital, where he received some stitches. By about 12.45 pm, he had returned to the site and was available to perform work.

8    However, Mr Birrell’s circumstances gave rise to concerns on the part of the HSRs for the employees of BMC and JBA that the first-aid establishment at the site was not what it ought to be. Although there was a first-aid room at the site, no-one was employed as a first-aid attendant as such. There was an adequately-equipped first-aid facility at the mill gate (where Mr Birrell had been taken) which was manned by a first-aid attendant, but, in the view of Mr Robertson, the site was a construction site in its own right, and AP, or the relevant employers (in his own case, BMC) ought to have ensured that the site was so manned, and that the attendant should be qualified to the required level. He directed the electricians employed by BMC to cease work because, he says (and I shall turn to his, and to the other HSRs’, evidence on the matter presently), the work of those electricians involved an immediate threat to their health or safety. He informed Messrs Cuddy and Cockrane of what he had done, and why, and they too, at least on their own evidence, gave cease work directions to the employees in their designated work groups. In the result, all of the employees of BMC and of JBA ceased work and sat in the site sheds. No further work was done by these employees on 22 March 2014.

9    In summary at this point, what happened thereafter was as follows. All the employees resumed work on Monday 24 March 2014, and worked normally for their ordinary time on that day, and on each of the next two days, the Tuesday and the Wednesday of that week. The JBA employees and the mechanical trades employed by BMC refused to work the customary two hours of overtime on these days, but the applicant’s allegations do not directly raise that issue. All the employees also worked normally in the morning of Thursday 27 March 2014. On that day, the JBA employees, and the mechanical trades employed by BMC, attended a lunch-break meeting in the car park at the site. That meeting was addressed by Messrs Dodd, Thornton and Sharp. After the meeting, the employees did not resume work but sat in the site sheds. For the whole of the Friday, and for the morning of the following Monday, they likewise sat in the sheds. At that point the dispute was resolved and the employees returned to normal work.

10    The applicant contends that the refusal of the employees to perform work on the afternoon of 27 March, on 28 March and on the morning of 31 March was industrial action within the meaning of the FW Act. He says that it was unlawful under s 417 because it was taken during the term of the relevant enterprise agreements; and, with respect to 31 March, because the action was in breach of an interim order made by the Fair Work Commission (“the Commission”) on 28 March 2014. Next, he contends that, by not complying with what he says was a request made by the unions that the site be manned by a full-time level 3 first-aider, AP, BMC and JBA engaged in industrial activity within the meaning of Div 4 of Pt 3-1 of the FW Act, and that the work stoppages amounted to adverse action against them in contravention of s 346. There is an associated issue whether it was a reason for the stoppages that BMC and JBA had not paid their employees for the time lost sitting in the sheds on 22 March 2014, and whether this too was in contravention of s 346. Finally, the applicant contends that the employees’ refusal to work on the three days referred to amounted to coercion under s 348 of the FW Act.

11    The applicant seeks to attach liability to Messrs Dodd, Thornton and Sharp either as organisers within the meaning of ss 417(1), 342(2) and 348 or as involved in the employees’ contraventions within the meaning of s 550. With respect to the interim order, it is said that the organisers were amongst the persons directly bound thereby. The unions are sought to be made liable under s 793 and, in the case of the alleged contraventions of ss 346 and 348, s 363.

12    While generally accepting the applicant’s broad narrative, the respondents put certain critical factual matters in issue, and raise a number of legal points which, if decided in their favour, would defeat the applicant’s case in all or some respects. I shall deal with these matters and points in the course of my reasons below.

THE EVENTS OF 22-31 MARCH 2014

13    It is established on the pleadings that, at about 10.00 am, and again at about 10.30 am, on 22 March 2014 (ie in the period following the injury to Mr Birrell), Mr Robertson requested Charles Strong, the relevant BMC supervisor responsible for the electricians, to “ensure that the site was permanently manned by a dedicated level 3 first-aider located in the site first-aid room”.

14    According to what is alleged and admitted on the pleadings, a like request was made by Mr Cuddy of Matthew Browne, the JBA site supervisor, at about 10.45 am. However, it was at that time (ie 10.45 am on 22 March 2014) that - as also alleged and admitted on the pleadings - the employees of BMC and JBA at the site ceased performing all work and sat in the site sheds. It emerged in the evidence that there was, in fact, no relevant conversation between Messrs Cuddy and Browne before that stoppage of work. According to the evidence-in-chief of Mr Cuddy, on that morning he had a conversation with Messrs Robertson and Cockrane. They told him of the incident involving Mr Birrell. Mr Robertson told him that he, Robertson, “was going to pull his members of the workforce off the job, as he thought that there was an immediate risk to health and safety.” As a result of that, Mr Cuddy “directed the same thing to all of the workforce that was under [him]”. According to Mr Cuddy’s evidence, “We sat in the sheds. We pulled our labour, and we sat in the sheds and tried to rectify the problem.”

15    Mr Cuddy did not give evidence about a conversation which he had with Mr Browne either before or at the time of the stoppage of work. In chief, neither was Mr Browne asked about any such conversation. Under cross-examination, however, he initially acceded to counsel’s proposition that Mr Cuddy told him that he, Cuddy, had “directed the boys to sit in the sheds”. He then sought to clarify, or perhaps to modify, that answer, saying that the essence of what he had been told by Mr Cuddy was that the boys had, as a “collective”, decided to sit in the sheds, and that he, Cuddy, passed that information on to him, Browne, in his, Cuddy’s, role as HSR. Placed into evidence without objection was Mr Browne’s diary for 22 March 2014. Alongside 10.45 am, he had written: “The hole [sic] site had sheded up due to OHS (no first aider on site).” Although not conclusive, I consider this entry to be more consistent with Mr Browne’s clarified evidence than with his initial evidence. Looking only at his evidence, I am disposed to accept the version that, from what he understood, the employees had decided as a collective to sit in the sheds. Having observed the way this evidence was given, I interpret his response to counsel’s initial question under cross-examination as involving a misunderstanding of the significance of counsel’s reference to a direction by Mr Cuddy.

16    Either way, it seems clear that Mr Cuddy spoke to Mr Browne only after the employees in his designated work group had stopped work and sat in the sheds.

17    For reasons which will become clear later, it is desirable - although it may not be necessary - that I make a finding on the question whether those employees stopped work because Mr Cuddy directed them to do so, and on the question whether he so informed Mr Browne in such conversation as they did have at about 10.45 am on 22 March. As to the latter aspect, the omission of counsel for the respondents to lead evidence from Mr Cuddy that he told Mr Browne that he had directed the employees of JBA to withdraw their labour and sit in the sheds gives me confidence in accepting Mr Browne’s clarified, rather than his original, evidence, on this point. I find that the essence of the message that Mr Cuddy conveyed to Mr Browne at about 10.45 am on 22 March 2014 was that the employees had decided to sit in the sheds. I would also find, however, that Mr Browne understood that the employees’ concern related to the absence of a first-aider on site, which made sense of the fact that it was their HSR that carried that message to JBA site management.

18    As to the former aspect, Mr Cuddy was not challenged under cross-examination on the evidence which he had given in chief that he directed the workforce that was “under” him to stop work. It is uncontroversial that it was Mr Robertson who initiated the proposal to stop work, that his interest in the matter related to his position as HSR and that he put that proposal to Messrs Cockrane and Cuddy - probably in that order - because they were the HSRs for the other designated work groups amongst the employees of BMC and JBA on the site. That the message to stop work would have been conveyed to the employees of JBA by Mr Cuddy was, in the circumstances, both a credible and a natural course of events. I so find on the probabilities.

19    Turning to the involvement of Mr Cockrane, the first he knew of Mr Birrell’s injury was when Mr Robertson told him that he had taken Mr Birrell to the first-aid facility at the mill gate in a utility vehicle. Mr Robertson told him that there were “no procedures and stuff for first aiders or anything”. He told him that the employees in his (Robertson’s) designated work group were “sitting in the sheds until they can come up with a procedure.” As a result, Mr Cockrane told the members of his own designated work group that they too would be sitting in the sheds. He said (in chief) that he “would have” spoken to his supervisor about the matter, adding, “I just explained to him what has happened, and that’s why we were in the sheds.” Under cross-examination, he identified the supervisor as Peter Thompson. He told him that there had been an accident and that “the boys had to throw someone in a ute and take him up to first aid ….” He responded affirmatively to counsel’s question whether he told Mr Thompson that he was “going to sit them in the sheds”.

20    Although Mr Cockrane’s recollection of the events of the week in question was generally very poor, his recollection of the events of 22 March 2014 appeared to be somewhat better than his recollection of later events that week. If what he said about that day was directly controverted by other credible evidence, or was intuitively doubtful, I would be reluctant to rely on his evidence. But I am prepared to accept, on the probabilities, that he directed the members of his designated work group - the mechanical trades employed by BMC - to sit in the sheds on the morning of 22 March 2014. I do so because his evidence to that effect is consistent with the evidence, which I have accepted, as to the actions of Messrs Robertson and Cuddy on the same morning, and because it was not directly challenged by counsel for the applicant when Mr Cockrane was under cross-examination.

21    As to the timing of Mr Cockrane’s conversation with Mr Thompson, I am unable to make a finding, favourably to the respondents’ case in relation to the OHS Act, that this occurred before the relevant employees stopped work at Mr Cockrane’s direction. The subject was not specifically explored by counsel - either in chief or during cross-examination - and such limited evidence as Mr Cockrane gave about it, to which I have referred above, could be interpreted either way.

22    In the Statement of Claim, the applicant alleged that, at about 11.00 am on 22 March 2014, Messrs Robertson and Cuddy repeated their request for the site to be permanently manned by a dedicated level 3 first-aider located in the site first-aid room to Mr Browne, Mr Strong and other members of AP’s project team. In their Amended Defence filed on 9 December 2016 – the Friday before the commencement of the trial the following Monday – the respondents admitted that allegation. When Mr Browne was under cross-examination, nothing was put to him on this subject. Neither was anything said about it in the respondents’ opening. Then, in the examination-in-chief of Mr Robertson by counsel for the respondents, it emerged that two AP employees who were, in the witness’s words, “in charge of the site for the day” (identified as Max Zammit and Kevin Payne), convened a meeting regarding the cessation of work and the issues surrounding that. After objection by counsel for the applicant, counsel for the respondents (wisely, in my respectful estimation) desisted from leading any further evidence about such a meeting.

23    However, in chief Mr Cuddy did give evidence of that character, and did so without objection. He said that AP’s safety adviser, Geoff Kyle, was not present on 22 March 2014, and neither was Roger Wilkinson, the Construction Manager for the de-inking plant project employed by AP. So they (ie Messrs Cuddy, Robertson and Cockrane) spoke to Messrs Zammit and Daniel Brown. They told them what they required, including the presence of a level 3 first-aider on site. Messrs Zammit and Brown told them that they would “get it all sorted out”, and that “it will be done by Monday.” If it were material – and I doubt that it is – I would not place much weight by this evidence. The respondents did not file outlines of evidence, and the applicant had no notice that evidence would be given of something, presumably thought to be helpful to the respondents’ case, said by Messrs Zammit and Brown on 22 March 2014. In the circumstances, the court has not had the benefit of what they might have said on the subject.

24    As it happens, tendered by the applicant without objection before Lucas Muller, JBA’s Project Manager at the site, gave evidence was a copy of his diary entry for 22 March 2014. It included the following:

SAFETY MEETING

First aid        11:15

Cut hand first aid

First aid on site

Work safe

Issue    First aider too far away. No knowledge of procedure

BMC    Want    signs on wall

        Familiar first aid kit

        Green hats for first aiders

BMC rang number no-one there, drove guy up

        3 stitches return to work

            Should be level 3 first aider on site

                Geoff Kyle

            AP says Front Gate Lvl 3

            & other people around Mill Lvl 3

            No issues

25    Mr Browne also attended this meeting at 11.15 am on 22 March 2014. According to the note he made of it in his diary, the safety committee had mentioned that they wanted “a level 3 first aid person on site @ all times”.

26    The other objective, albeit indirect, evidence of the events of 22 March 2014 is a brief diary entry made by Mr Wilkinson who, as noted above, was not at the site that day. The entry read:

Advised of injury. BMC E cut wrist.

Potential IR issue because Geoff Kyle not on site.

Although Mr Wilkinson was not asked about this entry, it is tolerably clear that “BMC E” meant an electrician employed by BMC.

27    Mr Muller’s diary entry provides an objective basis for making two other findings on the probabilities, findings which are consistent with a deal of the oral evidence in the case. First, the gist of the issue which arose in consequence of Mr Birrell’s injury was the absence of a suitably qualified first-aider on the site. As controller of the site, AP took the position that the presence of a level 3 first-aider at the mill gate provided sufficient cover, as it were. But that was not acceptable to the HSRs, who appear to have taken the position that the site as such was required to have a level 3 first-aider present at least during ordinary hours of work. Secondly, as represented by AP to the HSRs on 22 March 2014, the level 3 first-aider who was normally on duty in the vicinity of the mill gate was Mr Kyle. That day being outside ordinary hours, it was not suggested that Mr Kyle would have been at work then even if he had been engaged full-time on the site. Neither was it suggested that he would have been qualified to insert stitches had he been a level 3 first-aider. The point is, rather, that AP was taking the position that Mr Kyle’s presence at or near the mill gate was as far as it was required to go in the provision of a first-aid attendant for the site.

28    The employees of BMC and JBA failed to return to work, or to perform any work, for the remainder of the day on 22 March 2014. Indeed, there was an entry for 1.20 pm in Mr Browne’s diary which read, “Boys went home”. The employees were not paid for any time beyond 11.00 am on this day.

29    Save that it was a rostered day off for the electricians employed by BMC, work resumed on the morning of Monday 24 March 2014. It is established on the pleadings that, at about 10.30 am that day, Messrs Cuddy and Robertson repeated their request for the site to be permanently manned by a dedicated level 3 first-aider located in the site first-aid room. This time the request was made of Messrs Wilkinson and Muller. The only evidence given on this subject was by Mr Cuddy, who said, “We spoke to them on Monday. They said they were going to get it done. So we just … [gave] them a bit of leeway on goodwill … hoping that they were going to have it all sorted out in the next couple of days.” He also said that Mr Kyle returned to work that day, and (in Mr Cuddy’s words in his evidence) “we were just trying to sort it out … and give him a little bit of leeway.”

30    The employees of JBA and the mechanical trades employed by BMC (at least) at the site did not work the customary two hours of overtime after 3.30 pm on 24 March 2014.

31    Work resumed on the morning of Tuesday 25 March 2014. Under cross-examination, Mr Kyle said that there was a safety committee meeting that day. Mr Wilkinson’s diary placed that meeting at 11.00 am. The diary entry noted only “Risk assessment” and “Flow chart. Safety”. In his evidence Mr Kyle confirmed that Messrs Cuddy and Robertson would have been at the meeting (as members of the committee), but said that the issue of a level 3 first-aider was not discussed.

32    Mr Wilkinson’s diary for 25 March 2014 contained an entry to the effect that he was in a meeting from 2.30 pm until 3.30 pm. At 2.55 pm, he was notified that “all site would not work O/T due to Sat O/T docked”.

33    It is established on the pleadings that, in the early afternoon of 25 March 2014, Messrs Cuddy and Robertson requested of Messrs Wilkinson and Muller that the site be permanently manned by a dedicated level 3 first-aider located in the site first-aid room. It is not clear whether this request was made at the meeting referred to in Mr Wilkinson’s diary which commenced at 2.30 pm, and the matter was not otherwise referred to in the evidence. From the applicant’s perspective, neither need it have been, of course, since it had been admitted.

34    The employees of JBA and the mechanical trades employed by BMC (at least) did not work the customary two hours of overtime after 3.30 pm on 25 March 2014.

35    Work resumed on the morning of Wednesday 26 March 2014. In Mr Wilkinson’s diary for that day, under the heading, “0645 Pre-start”, one of the entries was “IR. O/T ban - received requirement to be paid for last Sat”. Then, with reference to the period 10.00 am to 12 noon, there were the following entries:

Mtgs B/T BMC & union reps & M Paynter re payment for Sat

Mtg B/T JBA mgmt (Justin Noonan) & union rep re pay claim for Sat

At 12 noon, there is an entry to the effect that Mr Wilkinson met with Mr Paynter, the subject being, “troops still after payment for Sat”. The evidence does not disclose who Mr Paynter was, or what was his role, but he appears to have been associated with one of the three companies referred to.

36    It is admitted on the pleadings that, at about 10.30 am on 26 March 2014, Messrs Cuddy and Robertson requested of Messrs Wilkinson and Paynter, and of Dean Pease, BMC’s Contracts Manager for the project, that the site be permanently manned by a dedicated level 3 first-aider located in the site first-aid room. Presumably, this occurred in the meetings referred to in Mr Wilkinson’s diary as having taken place between 10.00 am and 12 noon.

37    According to the diary, Mr Wilkinson was involved in further meetings that day, substantially concerned with how AP, BMC and JBA would deal with the industrial situation that then confronted them. None of that is directly relevant to the allegations made against the respondents, of course, but it may be noted that, at 1.30 pm, it was “resolved”, amongst other things, to “decide after the Dodd/Sharp visit tomorrow how to proceed incl will we shut the site Sat?”. From that I infer that, by 1.30 pm, it was known to the site management of AP, BMC and JBA that Messrs Dodd and Sharp would be at the site the following day.

38    They came by that knowledge by reason of the provisions of s 487 of the FW Act, which requires the holder of an entry permit issued by the Commission under s 512 to give at least 24 hours’ notice of his or her intention to enter premises to hold discussions with employees working there. Between 12.18 pm and 12.22 pm on 26 March 2014, the AMWU sent four notices that Mr Dodd would enter premises the following day “after 12.00 pm”. Those notices were sent to a company called “JBI”, to JBA, to BMC and to a company called “Primaweld”. In each case a copy was sent also to AP. At 10.54 am on 26 March 2014, the AWU sent a notice that Mr Sharp would enter premises the following day “at 12.00 pm”. That notice was sent to the “Primaweld” company. Although not mentioned in Mr Wilkinson’s diary, there was also evidence that, at 12.41 pm on 26 March 2014, Mr Thornton sent a notice that he would enter premises the following day at 1.00 pm. That notice was sent to Mr Wilkinson himself.

39    The employees of JBA and the mechanical trades employed by BMC (at least) did not work the customary two hours of overtime after 3.30 pm on 26 March 2014.

40    Before moving beyond 26 March 2014, it is convenient to address a factual issue which has arisen in the context of the non-working of overtime (if I may use a neutral description at this point) on that day, and on the two previous days, to which I have referred. While the fact was admitted by the respondents, they offered no explanation as to why the employees concerned would not have worked overtime consistently with site practice. No attempt was made to justify that conduct by reference to safety issues at the site. Indeed, as Mr Cuddy made clear in his evidence, the HSRs had decided to give AP and the employers some “leeway” to make the necessary arrangements to implement the safety improvements that they required. The entry for 6.45 am in Mr Wilkinson’s diary for 26 March 2014 provides contemporaneous, objective, evidence that there was a ban on the working of overtime in support of a claim for payment for lost time on the Saturday. Mr Cuddy rejected such a proposition, but I do not accept his evidence in relevant respects. I find that, on 24, 25 and 26 March 2014, the employees of JBA, including Mr Cuddy, and the mechanical trades employed by BMC, including Mr Cockrane, refused to work overtime in support of a claim to be paid for the time lost on 22 March 2014.

41    Work resumed on the morning of Thursday 27 March 2014. The electricians employed by BMC worked normally for the whole of that day. However, at the beginning of the meal break at 1.00 pm, the employees of JBA, and the mechanical trades employed by BMC, attended a meeting in the car park outside the site which was addressed by Messrs Dodd, Thornton and Sharp. An entry in Mr Wilkinson’s diary for about 1.15 pm on that day read: “Without notice from anyone – mass mtg in process: with Mrss – Sharp – Thornton – Dodd”. After the meeting – ie at about the time that the employees would normally have returned to work at the end of their meal break – the employees returned to the site but refused to work and sat in the site sheds. The factual questions which arise out of these events are, first, how, and on whose initiative, was the meeting convened, secondly, how did the organisers come to be at the meeting, thirdly, what was said at the meeting, and by whom, and fourthly, why did the employees sit in the sheds, rather than return to work, after the meeting?

42    In the Statement of Claim, it was alleged that Messrs Dodd, Thornton and Sharp convened the meeting. That allegation was denied, but the respondents did not state by whom the meeting was in fact convened. There is no suggestion that any of these organisers entered the site, where the employees were working before their meal break, to secure the employees’ attendance at an off-site meeting. If they, or one or more of them, did convene the meeting, it could only have been by some kind of arrangement with the employees. But there was no direct evidence of such an arrangement.

43    In his evidence-in-chief Mr Cuddy said that he rang Mr Thornton on 27 March 2014 and “asked him if he could come out and help us with some issues – some safety concerns – that we couldn’t get anywhere with the actual company.” Under cross-examination, Mr Cuddy made it clear that the initiating circumstance which prompted him to ring Mr Thornton was that he found out that that Mr Kyle was not a level 3 first-aider, contrary to what the HSRs had previously been told. It was that situation, he said, which gave rise to an immediate risk to health and safety. He did not immediately give a direction to stop work because “as a work group …we were waiting … to see what help that we could get.” He and the others in what he described as the “work group” had, however (ie before the meal break), decided “to withdraw our labour, because they weren’t fixing any of it.”

44    Mr Cuddy was challenged on his evidence that it was only on the morning of 27 March 2014 that he, and the other HSRs, discovered that Mr Kyle was not a level 3 first-aider, but there is some objective evidence in corroboration. After the car park meeting in the meal break, the organisers and the HSRs met with representatives of the companies involved in the dispute. I shall refer to that meeting in more detail presently. I note here, however, that Mr Wilkinson’s diary entry for the meeting was in evidence. It contained the following: “Alf Crow told the guys GK was L3”. “GK” was, I infer, Mr Kyle. The only reference in the evidence to Mr Crow was Mr Robertson’s that, immediately after Mr Birrell’s injury on 22 March 2014, in the first-aid room on the site “Alf Crow was going through the first-aid kit trying to work out what we could do for Stevie”. I infer that, at the meeting referred to, someone on the employee side reported that, at some earlier point, Mr Crow had told the HSRs that Mr Kyle was a level 3 first-aider. For this to have been the subject of comment at the meeting, and of Mr Wilkinson’s diary entry, provides objective support for Mr Cuddy’s evidence that he and he and the other HSRs had only recently discovered otherwise.

45    Mr Cuddy went to the meeting in the car park knowing that he was going to tell the employees in his designated work group to sit in the sheds. Before the meeting, he told the employees that he thought the site was not safe (ie because, he having just found out that Mr Kyle did not have level 3 first-aid qualifications, the situation remained that there was no-one on site with such qualifications). The employees took Mr Cuddy’s word on the matter of the unsafe condition of the site.

46    On the strength of Mr Cuddy’s evidence, which I have no reason to disbelieve, I find that the JBA employees were told by him to attend the mass meeting in the car park and that, subject to any advice given by their organiser at the proposed meeting, he (Cuddy) proposed to direct them to sit in the sheds after the meal break.

47    Regrettably, no such finding can be made in the case of the mechanical trades employed by BMC. Their HSR, Mr Cockrane, was not asked, either in chief or under cross-examination, how it was that those employees came to be at the meeting in the car park on 27 March 2014.

48    The matter of how the organisers came to be at that meeting is not, of course, directly relevant to any issue in this case, but it may have an indirect relevance to the applicant’s allegation that it was on their initiative that the meeting, and everything which flowed from it, came about.

49    Mr Dodd said that he attended the site on 27 March 2014 because he had received calls from his members in regards to safety on the site. Under cross-examination, he accepted that he probably responded to these calls by raising the right-of-entry notices that were sent by the AMWU on 26 March 2014.

50    In chief, Mr Thornton said that he knew, from a telephone call he had received from Mr Cuddy on 22 March 2014, that a worker had sustained an injury on the site. Under cross-examination, asked whether, after speaking to him on 22 March, Mr Cuddy had asked him to come to the site, Mr Thornton said that he had not, “but the delegates would have”. He said that the delegates had asked him to come to the site because “they just wanted to know what was going on with the safety issues”. He told them to consult the HSR, who would give them all the relevant information. The delegates he recalled, however, were from companies other than BMC and JBA. That last piece of evidence adds to what is already a confusing picture, but, when taken with Mr Cuddy’s evidence that it was only on 27 March 2014 that he spoke to Mr Thornton on the telephone, the probabilities are, in my view, that it was because safety issues had been raised by some delegates that Mr Thornton sent his right-of-entry notice on 26 March 2014. He surmised that the notice related to what he described as a “standard visit” to the site, ie a visit which was to have been unrelated to the events of 22 March and the days following. I do not accept that evidence. I find that the notice did relate to those events, and that it was raised and sent because Mr Thornton had been requested by CFMEU delegates to attend the site.

51    Mr Sharp said that he had submitted two right-of-entry notices to enter the site, or possibly the mill site (a distinction which was not clearly made in the evidence) on 27 March 2014, neither of which related to an employer with which the present case is concerned. One was to enter the premises of a company called “Chelgrave” at 9.30 am and the other was the notice relating to Primaweld to which I have referred above. The former was not in evidence, and, although the matter was not raised with any of the witnesses in the case, there is some reason to doubt whether that notice had been given at all, since Mr Wilkinson’s diary for 27 March contained the entry: “Notified by front gate … Jeff Sharp @ front gate wanting to see Chelgrave – No go on our R.O.E which is @ 12 pm”.

52    Mr Sharp said that the interval between the two entries (ie Chelgrave and Primaweld) gave him the opportunity to return to his office, which he did. While at his office, he got a message from someone about a problem at the site. Prior to that, he knew nothing of the presently controversial issues. He did not recall exactly how, or from whom, he received this message, but thought that it might have been from Mr Dodd or Mr Mooney. Mr Sharp had not forwarded a right-of-entry notice to AP, BMC or JBA, but assumed that the “swipe card” that he had used to gain entry to the mill site on the Chelgrave visit (and which he had retained because of his intention to return to speak to his members employed by Primaweld) would be sufficient for the purpose.

53    There is no reason not to accept Mr Sharp’s evidence referred to above. It is not inconsistent with the objective evidence of the AWU right-of-entry notice in relation to Primaweld. There is no suggestion in the evidence that Mr Sharp travelled to the site because he had been contacted by any of the HSRs, or by any other employee of BMC or JBA. The probabilities are that he found out that another organiser, or other organisers, were to attend the site on account of some problem which had been reported to him or them, and did likewise himself.

54    The next matter for consideration is what was said at the meeting in the car park. Mr Dodd said that the issues discussed at the meeting related to safety on the site. The members were emotional about a lack of what they believed were their entitlements with respect to safe working on the site. There was an issue about the first-aid on the site. There was a first-aid kit on the site, but “it didn’t have anything in it”. There was angst about where the first-aid room was located: a lot of the workers did not seem to know where it was, because it was in the compound and it was not signposted. There was angst with respect to who was the first-aid person on the site, and to other workers that may have had first-aid qualifications. There was no notice on the site showing a photograph of the HSRs. The workers did not know who the HSRs were. The workers were upset about the evacuation procedures. They were concerned as to how somebody would be rescued if he or she had an accident. They were concerned about the “rescue crew” which the workers had been given to believe existed, but which no-one had seen “actually walk the site”.

55    Mr Thornton said that the meeting was emotional and hard to control. Concerns were expressed about first-aid on the site, and about the adequacy of the initial response after the incident on the Saturday. The members “required some assistance to remedy the situation.” There was talk of “going home”, but the organisers strongly advised against that, because it was an occupational health and safety issue, and it needed to be “dealt with under the OH&S banner.” Recalling what he said in response to the suggestion that the workers should go home, Mr Thornton said that he said: “Look, let’s just try and resolve it amicably. We have to follow the issue resolution procedure. It’s completely under the OH&S banner, and we need to deal with that. There will be no members of mine going home until we resolve the issue.” He recalled that Mr Dodd also spoke at the meeting, as did Mr Sharp (albeit not much). Under questioning by counsel for the applicant, Mr Thornton reiterated that the car park meeting was emotional, and that a lot of the workers were angry. He recalled some of them saying that they would not go back to work, no matter what, and that they were going to sit in the sheds. They wanted the organisers “to try and rectify the OH&S issues”.

56    Mr Sharp’s recollection of the meeting was that there was a conversation about the problem, and the issues, on the site. He said that “one of the main ones was the first responders and the level 3 first-aiders”. Everybody made a contribution, but the HSRs were doing most of the talking. The mood of the meeting was a “bit agitated” about the need for the first-aid room to be manned by a level 3 first-aider, and for the first-aider to be identified and known to those working on site. There was mention that “some blokes”, or “some companies” were sitting in the sheds, or had done so on the previous Saturday. At the conclusion of the meeting, the organisers suggested that they would talk to management, a suggestion with which those present were “pretty fine”.

57    Mr Cuddy said in his evidence that he told the meeting in the car park that he had “pulled the people off site, because of safety”, and that the workers were going to sit in the sheds until the matter was fixed. They were asking the organisers to help them.

58    In his evidence, Mr Cockrane said that he did attend the meeting in the car park on 27 March 2014, but he did not speak at it. He could not recall who did speak.

59    In the light of this evidence, and perhaps regrettably, the only findings which I can make about the course of the meeting in the car park on 27 March 2014 are, with a limited but significant exception, very high-level ones. There was a general expression of disquiet on the part of the employees over what they perceived to be shortcomings in the matter of safety on the site. Although Mr Sharp said that the HSRs were doing most of the talking, one of the only two HSRs known to have been present, Mr Cockrane, said that he did not speak at all. I consider it more likely that there were many contributors to what was, from what appears, a free-ranging discussion with little organisation. Those present at the meeting had a number of solutions to the issues facing them, including leaving the site altogether. The organisers tended to discourage resort to such extreme measures, and to favour seeing the issues in the frame from which they had originally emerged, namely, that of occupational health and safety.

60    There is nothing improbable in these findings. If there is one thing which permeates all of the respondents’ evidence in this case, it is that the HSRs, and the employees, regarded matters of occupational health and safety as exceptions to whatever other obligations they may have had, and to whatever other restrictions may have been imposed on them, under the FW Act. Whether that was a sound perception is a matter to which I shall come, but, factually, it was a perception which underlay much of the events of the week in question. As will appear presently, when the organisers met with company representatives immediately after the meeting in the car park, they opened with an allegation that AP as the occupier of the site and BMC and JBA as the employers were in breach of the OHS Act. Theirs was not a claim for something new: it was a claim for the observance of the existing law. It may have been misguided, but it was a claim of that character. In the light of this, that the organisers would have framed the issue as one of occupational health and safety, and left it to the HSRs to direct any cessation of work, must be regarded as a viable interpretation of the course, and the dynamics, of the meeting in the car park.

61    The one specific finding I can make about the meeting in the car park is that there was no suggestion in the evidence, and it was not put to any of the respondents’ witnesses who were there, that anyone raised the matter of the employees not having been paid for the time when they were sitting in the sheds on 22 March 2014.

62    With respect to the matter of why the employees sat in the sheds after the completion of that meeting, rather than returning to work, I note that all those who were present at the meeting and who gave evidence denied having heard any of the organisers direct the employees to sit in the sheds or take industrial action. Mr Dodd said that he did not tell the workers, and he did not hear either of the other organisers tell the workers, to stop work or to sit in the sheds. Mr Thornton said that he did not tell the employees, and he did not hear anyone else tell them, to stop work, whether it be to sit in the sheds or to go home. Mr Sharp did not say, and did not hear any of the other organisers say, that the workers should sit in the sheds. He did not encourage anyone to take industrial action; neither did any of the other organisers. He did not hear anyone at the meeting suggest that people should go home. Although it was a robust meeting, he did not “particularly” hear anyone suggest that people should go and sit in the sheds. Although Mr Cockrane’s recollection was not good, so far as went it was his evidence that he did not recall anyone saying that there should be a stoppage of work. He could not recall directing the workers to sit in the sheds. But he insisted that, if the workers in his designated work group were sitting in the sheds at any point, it could only have been because he, as the HSR, had given a direction to that effect.

63    Mr Cuddy was emphatic that it was he who had directed the employees in his designated work group to sit in the sheds, and that he did so at the meeting in the car park. He said that he told them that they would sit in the sheds until the matter was fixed. He thus linked his direction to the broader project whereby the organisers would intervene on the employees’ behalves in a meeting with company representatives that was to take place in the afternoon. He was, I would have to say, in some difficulty when, under cross-examination, he was pressed to identify exactly when he gave that direction, but, as I have already mentioned, even before the meeting he had, in effect, achieved a consensus amongst those employees that they would follow that course. It is true that the respondents called no evidence to corroborate what Mr Cuddy said in this respect – Mr Thornton having made it clear that he did not hear Mr Cuddy give such a direction – but neither is there any particular reason to reject what Mr Cuddy himself said. I accept his evidence that, at the meeting in the car park, he did direct the employees in his designated work group to sit in the sheds.

64    I cannot make the same findings with respect to Mr Cockrane. Neither he nor any other witness gave evidence that, at the meeting on 27 March 2014 or thereabouts, he gave a cease-work direction. Mr Cockrane’s own assertion, in the witness box, that, if the employees were sitting the sheds, it could only have been because he directed them to do so cannot be accepted as evidence of what happened. Neither of the two relevant organisers, Mr Dodd and Mr Sharp, gave evidence that he heard Mr Cockrane give a cease-work direction. None of the employees in the relevant designated work group, save Mr Cockrane himself, was called by the respondents.

65    The position, then, is as follows. The employees of JBA sat in the sheds after the car park meeting because they had been directed to do so. It was Mr Cuddy, not Mr Thornton, who gave them that direction. I am unable to make any positive finding as to why the mechanical trades employed by BMC sat in the sheds. There was no direct evidence, and I am not satisfied that I should infer, favourably for the applicant, that they did so because of a direction from Mr Dodd or Mr Sharp. Likewise, there was no direct evidence, and I am not satisfied that I should infer, favourably for the respondents, that they did so because of a direction from Mr Cockrane.

66    Returning to the narrative, after the conclusion of the meeting in the car park on 27 March 2014, those who had been at the meeting did not return to work, but sat in the sheds. At 1.45 pm, there was a meeting attended by Messrs Dodd, Thornton and Sharp, by the HSRs, by Messrs Wilkinson, Pease and Muller, and by some others. I shall commence by referring to Mr Wilkinson’s diary entry which relates to that meeting.

67    The first section of the diary entry read as follows:

•    Believe AP are in breach of the OHS Act.

Bought out [sic – sought our?] “effective emergency response plans”.

•    Dedicated 1st aid person (non working).

•    Don’t accept L3 at gate is adequate

•    Photo’s not adequate

•    Compliance code work safe document.

•    Risk assessment

•    Concerns about health & safety.

And consultation about what AP can provide

68    There followed a reference, beside the time 2.30 pm, to Mr Paynter’s name, and the words “advised status”. There was a reference, beside the time 2.35 pm, to Gavin Jones (the AP project manager for the de-inking project). There is other evidence, to which I shall refer, that Mr Wilkinson left the meeting at some point, and this may have been that point.

69    The next entry was the one to which I have referred in para 44 above.

70    The next few lines in the diary entry read:

•    Companies sent there [sic] guys

Issues – payment for the day

– perm 1st aid (L3)

After a note to the effect that he had left a message with Mr Paynter, Mr Wilkinson then wrote, alongside the time 3.18 pm:

Rang Gavin Jones re payment on Sat to confirm non payment - non payment was confirmed.

GJ also veto’ed my offer of temp first aider in first aid room.

And, after a break of a line, the following:

Informed organisers & reps of the above.

– Organisers remain:-

– Must be paid for Sat

– Must have perm L3 1st aider in 1st aid room

71    While giving oral evidence, Mr Wilkinson was not taken to his diary with respect to the events of 27 March 2014. When asked about the meeting on that day, he said that he did not have a clear recollection of it, “because there were several meetings held during that week – Thursday and Friday, from memory.” With reference to both days, Mr Wilkinson said that there were discussions about having a non-working level 3 first-aider on the site as such. He said that the “guys” were seeking payment for time lost on the previous Saturday. Both the organisers and the HSRs were making those representations.

72    Mr Wilkinson said that he “would have” reported to Mr Jones. Then, speaking, as I understand it, from actual, albeit high-level, recollection as distinct from conjecture, he said that, having done so, he reported back to the meeting with the organisers and the HSRs, informing them that there would not be a level 3 first-aider on the site as such and that he was not to authorise payment for lost time. Under cross-examination, Mr Wilkinson said that they were the “two main issues”, in addition to which there were other sundry issues.

73    Cross-examined with reference to interchanges which had occurred generally in the week (ie not confined to, but including, the meeting on 27 March), Mr Wilkinson said that it was clear to him from Messrs Dodd, Thornton and Sharp that the workers should be paid for the time lost on the Saturday. He made a distinction between a demand made to that effect of AP and such a demand made of the immediate employers of the workers, BMC and JBA: he understood the demand to be in the latter category. When it was put to him that the organisers inquired whether the workers would be paid, rather than demanding that they be paid, he said that this was a matter of “semantics”. But he said that he was not part of any discussion between the organisers and the other companies.

74    Mr Pease too had what appeared to be a solid, albeit not a detailed, recollection of the meeting on 27 March 2014. When asked in chief about the subjects that were under discussion there, he said they related to “returning to work”. Specifically, there were a number of safety-related issues to be resolved, one of which was the request that the site hut be permanently manned by a project first-aid attendant, qualified at level 3. He had no recollection as to who made that request, but Messrs Robertson and Sharp were the most vocal ones at the meeting. As to the previous Saturday, there was “some talk of receiving an eight hours pay”, beyond which he was unable to be specific. This evidence was not materially qualified during cross-examination.

75    Mr Muller was also at the meeting on the afternoon of 27 March 2014. In his evidence, he said that, as a result of the incident on the Saturday, there was a discussion about emergency response. The idea was put forward, by a combination of the company representatives and the HSRs, to put a certificate 3 first-aider full-time on the site. The justification for such an expedient was that it was an OH&S requirement, “according to the regulations.” It was the HSRs, the organisers, and the company representatives that advanced that justification. Additionally, Mr Muller was told by the organisers that, because the workers’ refusal to work for four hours on the Saturday related to a safety issue, he was required to pay them for that time.

76    Mr Dodd described his recollection of the meeting with company representatives on 27 March 2014 as “sketchy”. He said that he recalled the meeting “roughly”. He said that it was “a number of different people” who did most of the talking at the meeting. The organisers were trying to put the views of the workers forward, supplemented by the HSRs, and possibly also the delegates. He said, “it was pretty much a general conversation around a table with a whole range of people, including the management people.” Under cross-examination, he accepted that there was a discussions about a level 3 first-aider. He recalled that the question was asked whether the workers would be paid for the time lost on the previous Saturday, and that the companies’ response was that, “No, we’re not paying for it, because … we don’t see it as a safety issue.” His own position was that, if the cessation of work had been on account of a safety issue, the workers should not be financially penalised.

77    Asked in chief to state who attended the meeting with the company representatives on 27 March 2014, Mr Thornton said that the HSRs, the employee representatives (ie, I take it, the delegates), the union organisers, the management representatives from the respective contract companies, Mr Wilkinson, and, he was pretty sure, Mr Kyle were there. Asked to recount who said what, he said that it was not an orderly meeting, because emotions were pretty high from the HSRs, and a lot of people were talking over one another. The one thing that Mr Thornton did recall asking Mr Wilkinson was whether he had a construction safety management plan and adequate first response. Under cross-examination, this was teased out somewhat, with Mr Thornton accepting that he, and the HSRs, made it clear that such a plan, consistent with the regulations as he understood them, would involve the requirement for the presence of a level 3 first-aider on the site. Asked whether he recalled it being said, either by himself or someone else, that the way to get the workers back to work was to put a level 3 first-aider in the first-aid room on the site, Mr Thornton responded, “I did recollect that a remedy would be to have a safe system of work. Part of that safe system of work would be adequate first-aid provisions. That could be a level 3 first-aider. Also address the first response. So it was a number of things.” Ultimately under cross-examination, he accepted that he had told the company representatives at the meeting that they had to have a level 3 first-aider on the site, although not necessarily in the first-aid room. He did not recall Mr Dodd or Mr Sharp, however, saying anything about that.

78    Mr Thornton said that, at the meeting, he did not request, and he did not hear Mr Dodd or Mr Sharp request, payment for the previous Saturday. When pressed on this matter under cross-examination, however, Mr Thornton said that “someone did ask it”, that he recalled that Mr Wilkinson said that he needed the approval of Gavin Jones, or his superior, that he (Wilkinson) left to speak to Mr Jones, that he returned at about 3.20 pm, and that he told the meeting that Mr Jones had told him that AP was not going to provide a non-working level 3 first-aider in the first aid site room, and that there would not be any payment made for 22 March. But Mr Thornton adhered to his evidence that, whoever it was who asked about payment for time lost on the Saturday, it was not one of the organisers.

79    The cross-examination of Mr Thornton on the subject of this meeting concluded as follows:

And if I said to you that you said that the employees won’t resume work until those issues were resolved, what do you say to that?---I would say that the employees, via their HSRs, had concerns about the safety management plan, and that was to do with the level 3 first aid and all the other safety issues what had been identified at that meeting, and that if they could resolve them, I’m - I’m sure we could - we could come to [an] amicable agreement that the employees would return to work.

So do I take it from that answer that you effectively said those things, that if there could be an amicable resolution of those issues - what - that would go a long way to getting the guys back to work or something like that?---Yes. If the - if the company had rectified those safety issues what were identified by the HSRs, yes, they would return to work.

80    Mr Sharp was at the meeting with the company representatives on 27 March 2014. He recalled that it was a fairly big meeting, attended by contractor representatives, by Mr Wilkinson and by the HSRs there. They “just basically discussed the issues”, the main one of which was the need for there to be a permanent level 3 first-aider employed located in the first-aid room on the site. It was said that this was a construction site where it was mandatory to have a level 3 first-aider. Other matters discussed included where the first-aid bag was kept and who was looking after it. Mr Sharp could not recall anything that anyone in particular said during the course of the meeting. He said that they “exchanged pleasantries” and said that they were there to try and sort it out. The companies were receptive to that. While he did not recall “particularly” who did most of the talking, it was “mainly the organisers and the occasional HSR” who had input into the meeting. He said that they “were just trying to get it sorted and trying to convince the company that, this is what the blokes wanted to resolve it”.

81    Mr Sharp did not remember it being said, either by himself or by one of the other organisers, that the employees who did not work a full day on the Saturday had to be paid for that full day. He did remember Mr Wilkinson leaving that meeting to speak to Mr Jones, and that he returned with the information that there would be no permanent level 3 in the first-aid room. He did not remember Mr Wilkinson saying that there would be no pay for 22 March. But he did remember that it was said, certainly by the HSRs, that the employees would not resume work until the issues were resolved.

82    Although neither he nor members of his work group had been involved in the meeting in the car park on 27 March 2014, Mr Robertson did attend the meeting with management at 1.45 pm that day. In chief, the only thing that he mentioned about the discussion at the meeting was that it was then that he found out that Mr Kyle was not a level 3 first-aider (albeit that, as he said in cross-examination, he could not then recall whether Mr Kyle himself had been at the meeting). Apropos the dispute generally, as I understand it, he said that he felt like the matter was “getting sort of above my level of experience” so he rang the organiser for the Electrical Trades Union (“the ETU”) (the union representing electricians employed by BMC), Mr Mooney, that night after work.

83    The only thing that Mr Cuddy recalled of the meeting on 27 March 2014 was that he said, “We won’t be going back to work today. Actually take it seriously and fix this problem”. He could not recall Mr Wilkinson leaving the meeting to ask someone about what had been put to him by the organisers and HSRs. He could not recall Mr Wilkinson returning with the statement that AP’s position was that they would not put a level 3 first-aider on the site. And he could not recall Mr Wilkinson saying that there would be no payment for the time lost on the Saturday. Indeed, Mr Cuddy could not recall anyone on the union side saying that they needed to be paid for the Saturday and they needed a level 3 first-aider on the site.

84    Mr Cockrane could not recll whether he attended the meeting on 27 March 2014; nor, for that matter, any meetings after the car park meeting at all.

85    From the evidence to which I have referred I find as a fact that, of the issues which were under discussion at the meeting between representatives of the employees and representatives of AP and the contracting companies on the afternoon of 27 March 2014, the main one was whether the first-aid room on the site should be permanently manned by a level 3 first-aid attendant who was not otherwise occupied working on the site. A secondary, albeit important, issue was whether the employees who had sat in the sheds on 22 March 2014 would be paid for the time that they had done so. In this regard it is established on the pleadings that, at the meeting on 27 March 2014, Messrs Dodd, Thornton and Sharp enquired as to whether the JBA employees and the mechanical trades employed by BMC would be paid for a full day’s work on 22 March 2014. There really is no dispute but that these were the two headline issues at the meeting, and Mr Wilkinson’s diary provides contemporaneous and objective, albeit compendious, support for that proposition.

86    Neither is there any real doubt but that the organisers were, on behalf of their respective members in the workforce, pushing at least for the resolution of the first issue in the affirmative. I do not think that this matter is to be resolved by attempting to assess the accuracy of the various witnesses’ recollections of who was doing the most talking, leading the argument, or the like. All those present on the employee side were taking a common position, which reflected the collective views expressed at the meeting in the car park. Neither should I be deflected by characterisations of the conversation at the meeting as involving no more, on that side, than an attempt to “resolve the issues”, or by attempts to package the first-aider request as no more than an internal component of a general concern with safety procedures and protocols on the site. I would find, consistently with Mr Wilkinson’s notes, that that was a headline issue in its own right. From the HSRs’ perspectives, the whole point of having the organisers present was to provide assistance in dealings with management. The collective experience of Messrs Dodd, Thornton and Sharp as union organisers amounted, on my reading of the evidence, to more than 23 years. The idea that they were no more than observers or advisers at the meeting could not be taken seriously. I find that they led the way in the employees’ requirements that a non-working level 3 first-aider be employed on the site.

87    I would make the same finding with respect to the requirement that payment be made for the time lost on the Saturday. The background, of course, is the fact of the overtime ban on the three days preceding, and the reason for it, as to which I have made findings in para 40 above. Carefully in my estimation, the organisers were asked only in chief if they had expressed such a requirement, or heard any of their colleagues do so. These questions were all answered in the negative. Although I cannot make a finding as to who, specifically, said what and to whom, there was no suggestion on the part of the respondents of anything other than a uniform position being put at the meeting on behalf of all the unions and their members in the employ of JBA and BMC. Despite their denials, I am not satisfied that any of the organisers had more than a very high-level recollection of this meeting in a frame which was, quite obviously in my observation, coloured by the needs of the present litigation, and their positions as respondents in it. As against that, it is clear from Mr Wilkinson’s notes that such a requirement was put forward in the meeting. That was also the substance of his oral evidence, which I accept. He was correct, in my respectful view, to regard the distinction between an inquiry whether the employees of BMC and JBA would be paid for time lost on the Saturday and a demand that they be so paid as one of semantics. I also find that the HSRs themselves were party to the requirement that payment be made for this lost time.

88    The meeting concluded at about 3.30 pm, after which the organisers informed the employees, still in the sheds, that the dispute had not been resolved.

89    On 28 March 2014, the employees of JBA and the mechanical trades employed by BMC attended at the site but did not perform any work that day. They sat in the sheds. From 7.00 am (the usual starting time), Messrs Dodd, Thornton and Sharp were present at the car park, mingling with the employees entering the site and thereafter conducting various discussions with employees through the site fences. The electricians employed by BMC attended for work normally, were unable to commence work until about 8.30 am due to inclement weather, and then worked normally until about 11.00 am.

90    At about 9.30 am on 28 March 2014, Messrs Dodd, Thornton and Sharp attended a meeting with representatives from AP, BMC, JBA, Phelan, the ETU and members of the site safety committee. In addition to the three organisers mentioned, those at the meeting included Messrs Robertson, Cuddy, Mooney, Wilkinson, Muller, Pease, and Kyle, and Dean Goodall (BMC Manager), Peter Clark (CFMEU Health and Safety Officer), Jan Russell (AMWU Delegate employed by JBA), Zed Jones (AMWU Delegate employed by BMC) and Steve Walsh (BMC Manager).

91    Notwithstanding refreshing his recollection from his diary (which prompted him to say only “it’s the same subject matter that had been spoken about that whole week”), in chief Mr Wilkinson did not give any useful evidence about the course of this meeting (at least so far as the position of the respondents and the employees they represented is concerned). Under cross-examination, and with reference to the meetings generally which were held that week, he said that the level 3-trained first-aider and the pay issues were items that “came up fairly regularly.”

92    Mr Pease recalled that the subject matter of that meeting was the level 3 first-aider, and the inadequacies of the response time of the AP safety team. At the end of the meeting, he said that the issues were “unresolved”. I note that Mr Pease may not have been speaking of the meeting that commenced at about 9.30 am, since he said that it “might have been 2.30” when the meeting finished. Under cross-examination, Mr Pease accepted the propositions of counsel for the respondents that, throughout all of the meetings that week (and, for that matter, on the following Monday) the three organisers were “genuinely trying to bring about a situation where the blokes would return to work”, and were telling him things like, “they’re just not going to go back to work unless there’s a level 3 first-aider here”.

93    Mr Muller said that, at the meeting, there was discussion of the same issues as had been discussed previously, namely, “the guys not working or ceasing work because of the safety issue with the level 3 first-aider”. Mr Wilkinson’s response to that request was that “it wasn’t going to happen.” His position was that AP’s existing first-aid facility, at the mill gate, was in compliance with the regulations. The employees’ response to this indication was to refuse to return to work.

94    Mr Kyle was present at the meeting on 28 March 2014. He said that there were a lot of questions about first aid on the site, and the requirements that were needed there. The concern raised by the union side was that AP did not have a level 3 first-aider on the site, relying in this regard on the relevant construction industry code of practice. The problem with the facility at the mill gate was that it was too far away for a response if there were an incident. Mr Wilkinson’s position was that the existing facility was adequate.

95    Mr Robertson’s evidence about the course of the meeting on 28 March 2014 was that those present “talked about all the different issues”. Under cross-examination, he said that he did not “specifically” recall Mr Mooney asking whether AP would put a permanent level 3 first-aider in the first-aid room, but that was one of the things “that we asked Australian Paper for”. Likewise, he did not recall Mr Mooney asking “specifically” for the workers to be paid for the time lost on the Saturday, “but that was our position - that we thought we were entitled, as - as it was out of our control”. Again, he did not “specifically” recall Mr Wilkinson going away to speak to his boss, but he did recall him returning with the information that AP would not be providing a permanent level 3 first-aider in the first-aid room. Mr Robertson did not recall Mr Wilkinson “specifically” saying that the workers would not be paid for the Saturday, but, he said in his evidence, “I do believe that was what was said.”

96    While Mr Dodd thought that he returned to the site on 28 March 2014 and met with the companies, he could not recall what was said at that meeting.

97    Mr Thornton said that, after the meeting on 27 March 2014, he had contacted Peter Clarke, the CFMEU’s occupational health and safety specialist, and arrived at the site the following day with him. Asked in chief whether, at the meeting which followed, he personally requested anything of Australian Paper, his answer was, “Only in regards to advice from Peter Clarke that they had to have a construction safety plan which dealt with first response, emergency evacuation and all those other safety issues like what Peter had identified.” He did not recall whether he, Mr Dodd or Mr Sharp made any inquiries, or said anything, about payment for the previous Saturday. At the end of the meeting, he and the other organisers put a proposal to Mr Wilkinson and the representatives of the various contractors on site that AP should hire or train a level 3 first-aider, and should develop a rescue plan and a protocol for emergency evacuations. After the meeting, Mr Thornton and Mr Clarke returned to the employees, who were still in the sheds, and told them that it had been a constructive meeting, but without resolution. He told them that he (or Mr Clarke) had contacted WorkSafe, who were on their way to the site. He did not say “anything to the workers about not working”. By about 4 pm, the representative from Worksafe had not yet arrived, so he and Mr Clarke left the site.

98     Under cross-examination, Mr Thornton’s response to the suggestion that, in the meeting on 28 March, Mr Wilkinson offered to provide all of the various emergency response issues that had been requested, except the level 3 first-aider in the first aid room was to say that Mr Wilkinson “still needed to be ticked off via the client, which was Australian Paper, for the level 3 first-aid.” As to the other issues, such as the first response and the emergency evacuation, Mr Thornton said, “we did make some inroads, but nothing had been put to paper, because it still needed to be ticked off by the client.” At one point Mr Wilkinson did leave the meeting to speak to Mr Jones, and reported back what he had been told.

99    Mr Sharp referred, in his evidence, to a number of safety issues that were productively discussed at the meeting on 28 March 2014, but “the sticking point was the level 3 first-aider”. Under cross-examination, he said that it was “possible” that Mr Wilkinson had offered to resolve all of the emergency response and related issues, but not that of the level 3 first-aider issue.

100    Mr Cuddy said that, on the morning of 28 March 2014, he told everyone to sit in the sheds until they had “seen them again and tried to get it rectified”. The “them” to whom he referred were the representatives of the employing companies on the site. Of the meeting itself, Mr Cuddy said: “It all just went around the table. Everyone said their point of view and what we were trying to achieve. But it was just going nowhere.” But he did recall Mr Wilkinson saying that “they wouldn’t put a first-aider on”. He reiterated that, on that day as well as on 27 and 31 March, he had directed the workers in his designated work group to sit in the sheds.

101    The applicant alleges that, at the meeting on 28 March 2014, Messrs Dodd, Thornton and Sharp repeated the request which they had made the previous day that a full-time level 3 first-aider be engaged on the site. I am not satisfied that they did so expressly, for the reasons that they did not need to do so. The company representatives knew what was being asked of them. The evidence to which I have referred above was, understandably, general and at, times, vague about the details of this meeting, but I could not, favourably for the applicant, go further than to find that this was a garden variety industrial negotiation in its advanced stages. The participants were discussing the claims that had been made and which remained on the table, rather than re-making those claims.

102    At about 11.00 am on 28 March 2014, after the conclusion of the meeting with the company representatives, Messrs Dodd, Thornton, Sharp and Mooney reported back to the employees who were then sitting in the site sheds and, from then until the end of the normal rostered shift that day (at 3.30 pm), all of the employees of BMC and of JBA, including the electricians employed by BMC, remained in the sheds and refused to perform, and did not perform, any work.

103    Also at about 11.00 am on 28 March 2014, the Commission made three interim orders under s 420(2) of the FW Act. One was referrable to BMC and its employees at the site, one was referrable to JBA and its employees at the site, while the third was referrable to AP and to the employees of BMC and of JBA at the site. It is established on the pleadings that the orders bound and applied to each of the unions, their officials, delegates, employees and agents, and the employees of BMC and of JBA at the site; that the orders required the unions, and their officials, delegates, employees and agents, to stop organising, and to refrain from further organising and/or from recommencing the organisation of, any ban, limitation or restriction on the performance of work by any of the relevant employees and of any failure or refusal by any of those employees who attended for work to perform any work at all; and that the orders required the employees immediately to stop, and not further to engage in or to recommence, any ban, limitation or restriction on the performance of their work, and any failure or refusal to perform any work at all where they had attended for work.

104    On the afternoon of 28 March 2014, Mr Wilkinson informed Messrs Thornton and Clarke of the making of the orders by the Commission. Mr Clarke said that the orders did not apply because it was a safety issue, not an industrial issue. It is also uncontroversial that, by the end of that day, the other respondents knew of the terms of the Commission’s orders.

105    There is a live question whether these orders ever came into effect, and I shall return to it in due course below.

106    On the initiative of AP, it seems, the employees were not required to attend for work at the site on Saturday 29 March 2014.

107    From about 7.00 am on 31 March 2014, Messrs Dodd, Thornton and Sharp were present at the car park, mingling with the employees entering the site and thereafter conducting various discussions with employees through the site fences. Shortly after 7.00 am, at the prestart meeting, the employees of BMC and of JBA were informed of the applicable orders made by the Commission on 28 March 2014 and that the orders required them to return to work. They provided the collective response that the issues at the site related to safety rather than to industrial matters, and, therefore, that the orders did not apply. They refused to commence work and sat in the site sheds.

108    At about 9.30 am on 31 March 2014, Messrs Dodd, Thornton and Sharp attended a meeting with representatives from AP, BMC, JBA, Phelan, the ETU and members of the site safety committee. In addition to the three organisers mentioned, those at the meeting included Messrs Robertson, Wilkinson, Muller, Pease and Mooney, and Danny Walsh, an ETU employee representative. At the meeting, the parties resolved the disputes that existed between them.

109    The resolution was recorded in a document which listed seven points, as follows:

1.    Review First Response – First Aid

a)    First Aid room to be next to the gatehouse (existing will remain in place until new one is connected)

b)    Gate person to be trained level 3

c)    Interim – other Level 3 (person) in place until gate person is trained

d)    Level 3 person to ensure (in conjunction with AP nurse & Geoff Kyle) first aid room is properly equipped.

2.    (Appropriate) Boom Craine & Basket for level 1 works to proceed as an interim measure until double access scaffold is built

a) Trial rescue using double access stairs

3.    SMP Review by outside (external) consultant in conjunction with the site safety committee

a)    Review (existing) SMP

b)    (Focus) Rescue and Evacuation plans

c)    Plan to communicate to work force ·

4.    Emergency Evacuation (DIP Only) this week – ASAP

a)    Issues arising to be addressed by the site safety committee ASAP

5.    Site Inspection (by area) prior to return to work – HSR’s and management rep’s

6.    Organisation chart of responsibilities for OH&S

7.    Improved first aiders ID chart – note Level 2 or Level 3

110    Describing the effect of the first of these points, Mr Wilkinson said:

[W]e had a construction entrance to the site which was permanently manned by a non-working guy, and he was a level 2 first aider. So the discussion and agreement was that we would get him trained up to level 3 and move the first-aid hut that we had to that construction gate so they could fulfil both roles.

The construction entrance to the site was what I have described as the site gate. The document was signed by Messrs Wilkinson, Mooney, Dodd and Thornton, but not by Mr Sharp. Neither was it signed by the HSRs, but Mr Thornton said in his evidence, without challenge under cross-examination, that the agreement embodied in the document had the endorsement of them.

111    The applicant alleges that, at the meeting on 31 March 2014, Messrs Dodd, Thornton and Sharp repeated the request which they had made on 27 March that a full-time level 3 first-aider be engaged on the site. However, the most favourable finding I could make for the applicant in this part of the case would be in the same terms as that made in para 101 above. Indeed, the impression I got from the evidence as a whole was that, from the outset at this meeting, settlement was strongly in the air. I consider it most unlikely that the organisers would have re-made their original claims in relation to the first-aider.

112    After a site safety walk, at about 1.30 pm, the employees of BMC and of JBA recommenced normal work.

113    There is no evidence as to whether the lost time claim was resolved, and if so, how.

THE OHS ACT

114    At this stage, it is convenient to deal with a submission which the respondents made about the relationship between the FW Act and the OHS Act. It was said that, because of certain provisions of the FW Act to which I shall refer, that Act evinced an intention to “vacate the field” on matters of occupational health and safety. It followed that nothing done by the employees in compliance with directions given by their HSRs under s 74 of the OHS Act could be treated as industrial action within the meaning of the FW Act and, as I understand the submission, that ss 346 and 348 of that Act likewise had no application to conduct, based on such a direction, that would otherwise fall within their terms.

115    This submission requires me to determine two questions: whether, on any or all of the relevant occasions, directions had been given under s 74 which produced the result that the employees concerned refused to work and sat in the sheds and, if so, whether the FW Act evinced an intention to vacate the field of industrial regulation in such a circumstance. The first question, in turn, has two elements: whether, on the facts, the HSRs at the site gave cease-work directions to the employees in their designated work groups and, if so, whether those directions complied with s 74 of the OHS Act.

116    I have already resolved the factual question: see paras 63-65 above. The presently controversial questions must be resolved on the basis that, on the afternoon of 27 March 2014, the JBA employees had been directed by Mr Cuddy to sit in the sheds, but the mechanical trades employed by BMC had not received a like direction from Mr Cockrane.

117    What happened at the commencement of working hours on each of 28 and 31 March 2014 was, in substance, a continuation of the status quo as it stood at the end of the previous working day. Both Mr Cuddy and the employees in his designated work group would have understood the direction he gave on 27 March 2014 as having ongoing effect.

118    I turn next to the question whether Mr Cuddy’s direction on 27 March 2014 complied with s 74 of the OHS Act.

119    Sections 73 and 74 of the OHS Act provided as follows:

73    Resolution of health and safety issues

(1)    If an issue concerning health or safety arises at a workplace or from the conduct of the undertaking of an employer—

(a)    the employer or its representative; and

(b)    the employees affected by the issue or, if there is a designated work group in relation to which the issue has arisen, the health and safety representative for that group—

must attempt to resolve the issue in accordance with the relevant agreed procedure or, if there is no such procedure, the relevant procedure prescribed by the regulations.

Note

If the issue is not resolved within a reasonable time, any of the parties attempting to resolve it may ask the Authority to arrange for an inspector to attend at the workplace to enquire into the issue (see section 75).

(2)    An employer must ensure that its representative (if any) for the purposes of subsection (1)(a)—

(a)    is not a health and safety representative; and

(b)    has an appropriate level of seniority, and is sufficiently competent, to act as the employer's representative.

Penalty:    60 penalty units for a natural person;

    300 penalty units for a body corporate.

74    Direction to cease work

(1)    If—

(a)    an issue concerning health or safety arises at a workplace or from the conduct of the undertaking of an employer; and

(b)    the issue concerns work which involves an immediate threat to the health or safety of any person; and

(c)    given the nature of the threat and degree of risk, it is not appropriate to adopt the processes set out in section 73—

the employer or the health and safety representative for the designated work group in relation to which the issue has arisen may, after consultation between them, direct that the work is to cease.

(2)    During any period for which work has ceased in accordance with such a direction, the employer may assign any employees whose work is affected to suitable alternative work.

Note

Any of the parties attempting to resolve the issue may require an inspector to attend the workplace (see section 75).

120    There could be no serious suggestion that para (a) of s 74(1) was not engaged in the circumstances which existed at the site on 27 March 2014.

121    With respect to para (c) of s 74(1), I was not addressed on whether there were any “agreed procedures”, and regulations made for the purposes of s 73(1), if there were any, were not tendered. In the circumstances, I have no option but to hold that para (c) was not engaged.

122    I would also hold that para (b) was not engaged. The respondents led no evidence of work on the site which would, had it been carried out on the afternoon of 27 March 2014, have involved an immediate threat to the health or safety of any person. There was no explanation for this deficiency in the respondents’ evidentiary case. That there was such a threat seems most unlikely on the probabilities, since everyone had been working since 7 am the previous Monday. It was not the immediacy of a threat to the health or safety of any person which caused the employees to cease work when they did on 27 March: it was the arrival of the meal break.

123    To the extent that I should perceive in the respondents’ argument the unexpressed proposition that any work on the site, of any description, necessarily involved a threat of the kind referred to in s 74(1)(b), I reject it. In the absence of evidence, I am not prepared to find that the absence of a full-time level 3 first-aider, or the companies’ failure to introduce any of the other safety measures which were under discussion, immediately threatened the health or safety of any person. The “issues” (to use the terminology of s 74) related to protective or precautionary measures which had not been taken, rather than to work which was being done and which involved a threat of the kind referred to. Indeed, the continuation of work over three days and a morning that week speaks loudly of the absence of an immediate threat. What eventually induced Mr Cuddy to give his cease-work direction on 27 March was not some new or changing work situation since the Monday morning: it was his frustration with the fact that these protective or precautionary measures had not been taken, and there was every indication that, absent some escalation of the issues, they would not be taken.

124    For the above reasons, I hold that Mr Cuddy’s cease-work direction on 27 March 2014 was not made under s 74 of the OHS Act.

125    Strictly, that holding, and the finding made above in relation to the mechanical trades employed by BMC, make the respondents’ constitutional law point concerning the interaction between s 74 of the OHS Act and the provisions of the FW Act upon which the applicant relies moot. In deference to the argument which I received on the point, and for the sake of completeness, however, I propose to deal with it.

126    Sections 26 and 27 of the FW Act provide as follows:

26    Act excludes State or Territory industrial laws

(1)    This Act is intended to apply to the exclusion of all State or Territory industrial laws so far as they would otherwise apply in relation to a national system employee or a national system employer.

(2)    A State or Territory industrial law is:

(a)     a general State industrial law; or

(b)    an Act of a State or Territory that applies to employment generally and has one or more of the following as its main purpose or one or more of its main purposes:

(i)    regulating workplace relations (including industrial matters, industrial activity, collective bargaining, industrial disputes and industrial action);

(ii)    providing for the establishment or enforcement of terms and conditions of employment;

(iii)    providing for the making and enforcement of agreements (including individual agreements and collective agreements), and other industrial instruments or orders, determining terms and conditions of employment;

(iv)    prohibiting conduct relating to a person’s membership or non‑membership of an industrial association;

(v)    providing for rights and remedies connected with the termination of employment;

(vi)    providing for rights and remedies connected with conduct that adversely affects an employee in his or her employment; or

(c)    a law of a State or Territory that applies to employment generally and deals with leave (other than long service leave or leave for victims of crime); or

(d)    a law of a State or Territory providing for a court or tribunal constituted by a law of the State or Territory to make an order in relation to equal remuneration for work of equal or comparable value; or

(e)    a law of a State or Territory providing for the variation or setting aside of rights and obligations arising under a contract of employment, or another arrangement for employment, that a court or tribunal finds is unfair; or

(f)    a law of a State or Territory that entitles a representative of a trade union to enter premises; or

(g)    an instrument made under a law described in paragraph (a), (b), (c), (d), (e) or (f), so far as the instrument is of a legislative character; or

(h)    either of the following:

(i)    a law that is a law of a State or Territory;

(ii)    an instrument of a legislative character made under such a law;

that is prescribed by the regulations.

(3)    Each of the following is a general State industrial law:

(a)    the Industrial Relations Act 1996 of New South Wales;

(b)    the Industrial Relations Act 1999 of Queensland;

(c)    the Industrial Relations Act 1979 of Western Australia;

(d)    the Fair Work Act 1994 of South Australia;

(e)    the Industrial Relations Act 1984 of Tasmania.

(4)    A law or an Act of a State or Territory applies to employment generally if it applies (subject to constitutional limitations) to:

(a)    all employers and employees in the State or Territory; or

(b)    all employers and employees in the State or Territory except those identified (by reference to a class or otherwise) by a law of the State or Territory.

For this purpose, it does not matter whether or not the law also applies to other persons, or whether or not an exercise of a power under the law affects all the persons to whom the law applies.

27    State and Territory laws that are not excluded by section 26

(1A)    Section 26 does not apply to any of the following laws:

(a)    the Anti‑Discrimination Act 1977 of New South Wales;

(b)    the Equal Opportunity Act 2010 of Victoria;

(c)    the Anti‑Discrimination Act 1991 of Queensland;

(d)    the Equal Opportunity Act 1984 of Western Australia;

(e)    the Equal Opportunity Act 1984 of South Australia;

(f)    the Anti‑Discrimination Act 1998 of Tasmania;

(g)    the Discrimination Act 1991 of the Australian Capital Territory;

(h)    the Anti‑Discrimination Act of the Northern Territory.

(1)    Section 26 does not apply to a law of a State or Territory so far as:

(b)    the law is prescribed by the regulations as a law to which section 26 does not apply; or

(c)    the law deals with any non‑excluded matters; or

(d)    the law deals with rights or remedies incidental to:

(i)    any law referred to in subsection (1A); or

(ii)    any matter dealt with by a law to which paragraph (b) applies; or

(iii)    any non‑excluded matters.

Note:    Examples of incidental matters covered by paragraph (d) are entry to premises for a purpose connected with workers compensation, occupational health and safety or outworkers.

(2)    The non‑excluded matters are as follows:

(a)    superannuation;

(b)    workers compensation;

(c)    occupational health and safety;

(d)    matters relating to outworkers (within the ordinary meaning of the term);

(e)    child labour;

(f)    training arrangements, except in relation to terms and conditions of employment to the extent that those terms and conditions are provided for by the National Employment Standards or may be included in a modern award;

(g)    long service leave, except in relation to an employee who is entitled under Division 9 of Part 2‑2 to long service leave;

(h)    leave for victims of crime;

(i)    attendance for service on a jury, or for emergency service duties;

Note:    See also section 112 for employee entitlements in relation to engaging in eligible community service activities.

(j)    declaration, prescription or substitution of public holidays, except in relation to the rights and obligations of an employee or employer in relation to public holidays;

(k)    the following matters relating to provision of essential services or to situations of emergency:

(i)    directions to perform work (including to perform work at a particular time or place, or in a particular way);

(ii)     directions not to perform work (including not to perform work at a particular time or place, or in a particular way);

(l)    regulation of any of the following:

(i)    employee associations;

(ii)    employer associations;

(iii)     members of employee associations or of employer associations;

(m)    workplace surveillance;

(n)    business trading hours;

(o)    claims for enforcement of contracts of employment, except so far as the law in question provides for a matter to which paragraph 26(2)(e) applies;

(p)    any other matters prescribed by the regulations.

127    It was submitted on behalf of the respondents that, by these provisions, the FW Act evinced an intention that State occupational health and safety laws would survive the enactment of that Act at least insofar as covering the field was concerned.

128    The first thing to be said about these provisions is that s 26 is an exclusionary provision. It does not preserve anything. The next thing to be said is that s 27 is a qualifying provision apropos s 26. Thus s 27(1)(c) provides that s 26 does not apply to a law of a State so far as that law deals with a non-excluded matter. Under s 27(2)(c), occupational health and safety is a non-excluded matter. It follows that, if any provision of a law referred to in s 26 dealt with occupational health and safety, it would not be excluded by that section. Thus, to the extent of the operation of ss 26 and 27, the respondents’ argument may be accepted.

129    But the applicant did not rely on s 26. The OHS Act, as an Act, does not fall within this section, and the same may be said of s 74. Section 27(2)(c) of the FW Act, therefore, makes no contribution to the resolution of the respondents’ point. Further, s 30 of the FW Act provides as follows:

This Division is not a complete statement of the circumstances in which this Act and instruments made under it are intended to apply to the exclusion of, or prevail over, laws of the States and Territories or instruments made under those laws.

That is to say, if there were a State law, not falling within s 26, which was inconsistent with a provision of the FW Act, in either of the s 109 senses, the latter would prevail. Section 27 would be irrelevant. In the present case, where s 74 is the relevant State law, that is indeed the situation.

130    I hold, therefore, that the operation of the provisions of the FW Act upon which the applicant relies was not qualified, or affected in any respect, by s 74 of the OHS Act.

INDUSTRIAL ACTION

131    To the extent presently relevant, s 417 of the FW Act provides as follows:

No industrial action

(1)    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.

(2)    The persons are:

(a)    an employer, employee, or employee organisation, who is covered by the agreement or determination; or

(b)    an officer of an employee organisation that is covered by the agreement or determination, acting in that capacity.

132    The first question which arises under s 417 is whether the refusal of the employees of JBA, and the mechanical trades employed by BMC, to work on 27, 28 and 31 March 2014 was industrial action as defined in s 19 of the FW Act. Subsections (1) and (2) of s 19 provide as follows:

(1)    Industrial action means action of any of the following kinds:

(a)    the performance of work by an employee in a manner different from that in which it is customarily performed, or the adoption of a practice in relation to work by an employee, the result of which is a restriction or limitation on, or a delay in, the performance of the work;

(b)    a ban, limitation or restriction on the performance of work by an employee or on the acceptance of or offering for work by an employee;

(c)    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;

(d)    the lockout of employees from their employment by the employer of the employees.

(2)    However, industrial action does not include the following:

(a)    action by employees that is authorised or agreed to by the employer of the employees;

(b)    action by an employer that is authorised or agreed to by, or on behalf of, employees of the employer;

(c)     action by an employee if:

(i)    the action was based on a reasonable concern of the employee about an imminent risk to his or her health or safety; and

(ii)    the employee did not unreasonably fail to comply with a direction of his or her employer to perform other available work, whether at the same or another workplace, that was safe and appropriate for the employee to perform.

133    The applicant’s submission was that the employees’ refusal to work on the afternoon of 27 March, on 28 March and on the morning of 31 March 2014 was “industrial action” within s 19(1)(c) of the FW Act. Subject only to what follows below, I accept that submission.

134    It was submitted on behalf of the respondents that the conduct of the workers of which the applicant complains fell outside the definition of industrial action because of the exclusion in subs (2)(c). Because of the nature of the concerns which, on the respondents’ submissions, the employees at the site held, subpara (ii) of this provision could not be engaged: those concerns related to the site as a whole, and there was no work which their employers, consistent with those concerns, could have directed them to perform. The questions which remain, therefore, are whether the employees did hold concerns about imminent risks to their health and safety, and, if so, whether their refusal to work was based on those concerns, and whether the concerns were reasonable

135    Save for Messrs Cuddy, Cockrane and Robertson themselves (and the relevant management representatives), no employee of BMC or JBA gave evidence in the case. There was, therefore, no direct evidence that any of them held an actual concern – whether or not reasonable – about an imminent risk to his or her health or safety. The respondents’ case was, in relevant respects, wholly inferential. So was the applicant’s, and it was the latter, in my view, which was the more powerful in respects presently under discussion. I refer to what I have said at para 122 above in relation to s 74(1)(b) of the OHS Act.

136    The respondents rely on the circumstance that the initiating issues which remained unresolved at 1.00 pm on 27 March 2014 related to safety at the workplace. They rely also, I take it, on the evidence that the meeting at this time was an emotional one, characterised by angst over unresolved safety concerns and, at least in the recollection of Mr Thornton, by anger. They do not rely on the employees themselves having decided to cease work in the face of a threat to their health and safety: indeed, their case is that the employees were told to cease work by their HSRs. I have accepted that case only in relation to the employees of JBA, but, even in relation to the mechanical trades employed by BMC, on the evidence I could not find that the employees ceased work of their own accord.

137    On the other hand, the very fact that the employees had worked for three days and a morning on a site which, the respondents now contend, presented imminent risks to their health and safety speaks against the proposition that the employees in fact held concerns about risks of that character. At the level of the site, nothing changed as between that period of working and the Thursday afternoon when there was no work. Of the employees themselves, only Messrs Cuddy and Cockrane gave evidence. The respondents’ omission to call a single rank-and-file member of any of the unions does not assist their project of having the court accept that those members held concerns about risks of that kind. The whole of the evidence is, in my view, much more consistent with the employees having been worried and concerned, in the sense of frustrated, that the first-aid and related issues raised on their behalves had not been resolved than with them having been concerned that continuing to work on the site would expose them to risks of the kind referred to in s 19(2)(c).

138    I am not satisfied that the employees who sat in the sheds in the period under consideration held concerns about an imminent risk to their health or safety on the site. It follows that the action which they took was not based on such concerns.

139    It not having been established that the employees were concerned, in the s 19(2)(c) sense, on 27 March 2014 and subsequently, it would be both artificial and theoretical for the court to consider whether any concerns that might have been held would have been reasonable ones. I do not propose to do so.

140    For the above reasons, s 19(2)(c) of the FW Act was not engaged in the circumstances of the case. When the employees sat in the sheds on 27, 28 and 31 March 2014, that was industrial action within the meaning of s 19, and the employees’ conduct amounted to a contravention of s 417(1).

141    The next matter is whether Messrs Dodd, Thornton and Sharp, or one or more of them, organised that industrial action. If either of Messrs Dodd and Thornton did so, he would be directly liable under s 417(1). Mr Sharp’s position, however, would be otherwise: the AWU was not covered by either of the relevant enterprise agreements, and Mr Sharp was not, therefore, within the class of persons set out in subs (2). The employees who took the industrial action, however, were on any view covered by one or other of these agreements, and were thus within s 417(2)(a). Mr Sharp might yet be indirectly liable by the operation of para (a) of s 550(2), and it was submitted on behalf of the applicant that he was. It is, therefore, necessary that I consider his potential liability as an organiser of the industrial action, along with that of Messrs Dodd and Thornton.

142    It was submitted on behalf of the applicant that “the organisation [of the industrial action] involved the inferred instruction to the employees to cease performing all work, allow the organisers to prosecute the industrial demands and to not return to work until an agreed resolution was reached.” That may have been a fair inference for the applicant to have drawn when the only established facts were that the employees worked on the morning of 27 March 2014, attended a mass meeting at which the organisers, for the first time, were present and then, after the break, refused to work. From the outside, it appeared that the only thing which set the afternoon apart from the morning was the organisers’ attendance at the intervening meeting.

143    But, as a result of the evidence in this case, the court knows a deal more about the meeting in the car park than the applicant did at the time he made his allegations, and prepared the submission referred to above. Each of the organisers has denied that he gave an instruction of the kind alleged by the applicant, and has denied hearing either of his colleagues doing so. Mr Cockrane’s recollection was too imperfect for his evidence to be of any value in this regard, but Mr Cuddy said that he did not hear any of the organisers give such an instruction. Albeit that the applicant would, as I understand it, invite me to treat this evidence with scepticism, I accept it. And I accept the organisers’ denials.

144    The organisers were new to the problems which had occupied the HSRs’ attention since the previous Saturday. That the organisers gave an instruction of the kind alleged by the applicant is not the only possible explanation for the circumstance that the employees refused to work after the meeting. In the case of the JBA employees, I have found that they were directed to cease work by Mr Cuddy. I have not made a corresponding finding in the case of the mechanical trades employed by BMC, but, in a compartment of the case where the applicant bears the legal onus, it does not follow that I should find that Mr Cockrane gave no such direction. Even if he did not do so, it does not follow that an instruction by one or more of the organisers must have been the explanation for those employees acting the way that they did.

145    Here it should be stressed that the present case differs materially from cases, often seen in the authorities, in which a union organiser has arrived at a construction site, normally and conventionally operating without any hint of local industrial issues, and addressed a meeting of workers, after which those workers ceased work. In the present case, there was a most conspicuous local issue – whether it be described as an industrial one or a safety one – that had occupied the attention of the workers’ site representatives for some days. Further, there is no suggestion that any of the organisers addressed the meeting at the car park about an off-site issue, or was pursing an off-site agenda of some kind.

146    I am not satisfied that Messrs Dodd or Thornton organised the industrial action taken on the afternoon of 27 March 2014. Neither am I satisfied that either of them organised the continuing industrial action on 28 and 31 March 2014, or on either of those days. Although, as I have noted, Mr Sharp could not be liable under s 417, for reasons which will become apparent in a moment, I likewise find, as a fact, that he did not organise this industrial action.

147    For the liability of the organisers for the industrial action on these three days, the applicant relied, in the alternative, on s 550 of FW Act, which provides as follows:

(1)    A person who is involved in a contravention of a civil remedy provision is taken to have contravened that provision.

(2)    A person is involved in a contravention of a civil remedy provision if, and only if, the person:

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

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

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

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

148    I have already held that the employees of JBA and the mechanical trades employed by BMC on the site took industrial action in contravention of s 417 on 27, 28 and 31 March 2014. It is submitted on behalf of the applicant that Messrs Dodd, Thornton and Sharp counselled, procured and induced those contraventions. Consistently with what I have held above in relation to the applicant’s allegation that they organised the industrial action, I reject that submission.

149    The applicant also submitted that Messrs Dodd, Thornton and Sharp were knowingly concerned in the contraventions of s 417 within the meaning of s 550(2)(c). This required that they were “intentional participant[s], the necessary intent being based upon knowledge of the essential elements of the contravention”: Yorke v Lucas (1985) 158 CLR 661, 670. It was submitted on behalf of the respondents that these organisers neither participated in, nor knew the essential elements of, the employees’ contraventions of s 417.

150    With respect to the requirement of participation, the starting point is that, on 24, 25, 26 and the morning of 27 March 2014, work (at least during ordinary time hours of work) proceeded normally. But the HSRs were not happy that their claims for a level-3 first aider on the site, and for some other safety measures, appeared to be getting nowhere. Mr Cuddy said that he rang Mr Thornton “because we weren’t getting anywhere, and I just wanted to try and get some help”. He asked him “if he could come out and help us with some issues – some safety concerns – that we couldn’t get anywhere with the actual company” and “if [he] could please help [them] try and get to the bottom of it.”

151    At the meeting in the car park, Mr Cuddy said, “I’ve pulled the people off site, because of safety, and we’re going to sit there till we get it fixed, and for the organisers to help us.” Under cross-examination, Mr Cuddy was questioned, and answered, as follows:

So, as I understand that evidence, Mr Cuddy, you’ve told Mr Thornton when he first arrives at the site that there had been a direction to sit in the sheds, and then you told the mass meeting at which Mr Thornton attended, that you had directed the guys to sit in the sheds?---Yes. That we were going to – that we were going to stay in the sheds until the matter was resolved.

Sorry. I don’t understand that answer?---That we were going to stay in the sheds until the matter was – was resolved.

So you directed them to sit in the sheds and that they were going to stay in the sheds until the matter resolved?---Yes.

And you wanted the organiser to help you?---Yes.

152    Speaking of the meeting in the car park, Mr Thornton said that there were “concerns about the adequate first response after the incident, and that the employees, or the members, required some assistance to remedy the situation.” The employees “wanted the union officials to assist to try and rectify the OH&S issues”.

153    Also speaking of the meeting in the car park, Mr Sharp said that the employees “required our assistance to try and get something sorted out”. He said that the HSRs had asked for “our assistance to come and help”. He said that he was on the site “to assist the HSRs and get a resolution and hopefully get the blokes back to work.” He was cross-examined as follows:

As I understand it, you’ve been asked by the HSRs to assist?---Yes.

When you attended at the site, you knew the guys were not working?---That was – that – that’s what I thought was happening.

You were aware of what they wanted resolved?---Not all of it, but certainly - - - Some of it?---Yes, some of it. Yes.

You knew that they had expressed a view that they weren’t going to go back to work until those issues were resolved?---Yes.

And you didn’t say anything expressly against the idea that they remain in the sheds?---Well, no, I didn’t, because I didn’t – didn’t have an – a full understanding of the issues.

You didn’t say it was a bad idea?---No.

You didn’t say that they should keep working but pursue their grievances under the dispute resolution procedure?---As far as I knew, they were following their disputes resolution procedure. If it was an imminent risk to their health and safety, then that was their belief. Yes, it’s - - -

And you went to the meeting with management to attempt to secure agreement to what it was that the employees wanted?---We wanted to get a satisfactory outcome, yes, to appease their concerns.

Mr Sharp said that the HSRs wanted him to go the site “and give them a hand to sort out the issues”, adding, “That’s what we do.”

154    Mr Dodd accepted that his right-of-entry notice was issued in response to the request you had received from his members “to come out and assist”. He said that the purpose of the meeting with company representatives on the afternoon of 27 March 2014, was “to actually talk to them about the concerns of all of the workers on that site in regards to their safety and the facilities that weren’t there.”

155    From all of the evidence, including particularly that referred to above, I find that the organisers did not instruct, advise or encourage the employees to refuse to work, or to sit in the sheds, on the afternoon of 27 March 2014. They were, however, knowing and willing participants in the project, to which I infer that there was at least majority assent at the meeting in the car park, to prevail upon the company representatives to arrive at a more accommodating resolution of the safety issues in dispute than had been achievable in the previous days. They had their role to play: bringing their experience and authority, as full-time union officials, to bear in negotiations with the companies. The employees had their role to play: refusing to work. In the case of the JBA employees, this was, as I have found, at the direction of Mr Cuddy, but it would be naïve not to appreciate that they did so in the realistic expectation that their action would strengthen the hands of the organisers and the HSRs in their dealings with the employers. For their parts, it is readily to be inferred that the organisers well knew that the circumstances prevailing on the site – where no work was being done – dealt them a stronger hand in their negotiations with the companies than they would have held had work been proceeding normally. They intended that this be so.

156    The other question arising under the test adumbrated in Yorke v Lucas is whether the organisers’ participation was based upon knowledge of the essential elements of the employees’ contraventions. With respect to the definition of industrial action in s 19 of the FW Act, that the organisers knew that the employees were going to fail or refuse, and that they did fail or refuse, to perform any work is readily to be inferred. The submission to the contrary made on behalf of the respondents was token at best. It is also uncontroversial that the organisers knew that the employees – both of BMC and of JBA – were covered by the relevant enterprise agreement which was within term. It was, however, submitted on behalf of the respondents that, because they believed that the cessation of work was associated with the employees’ concerns about health and safety, it could not be concluded that the organisers “knew” of so much of the elements of the definition as consisted of the absence of concerns of that kind.

157    I do not accept that submission. Absence of reasonable health and safety concerns is not an “essential element” of the definition of industrial action. To make good his case that there was industrial action on 27 March 2014, the applicant did not need to enter upon the matter of health and safety: his affirmative case under the definition was complete upon the engagement of one of the paragraphs in subs (1). That case might then have been defeated by the respondents establishing that one of the paragraphs of subs (2) was engaged. But they have not done so. The organisers knew all of the essential elements of the industrial action which was in fact taken on that day.

158    Another answer to the respondents’ submission is that satisfaction of the second requirement in Yorke v Lucas is to be objectively assessed. What is necessary is that the putative respondent know the facts that would make the primary actor’s conduct a contravention. If that bar is crossed, it will not assist the respondent to say that he or she knew the facts but did not realise that those facts amounted to a contravention. Likewise, if the facts known to the respondent were such as would establish a defence for the primary actor, the former may have defence to an allegation of liability under s 550, but it would not assist the respondent to say, contrary to the truth of the matter, that he or she believed the facts to be such as would establish such a defence. In the present case, I have held that the facts would not sustain a defence under s 19(2)(c).

159    I am satisfied that the organisers were knowingly concerned in the employees’ contraventions of s 417 of the FW Act on 27 March 2014.

160    I hold, therefore, that Messrs Dodd, Thornton and Sharp contravened s 417 of the FW Act pursuant to the operation of s 550(2)(c) of that Act. I make that holding first in relation to the events of 27 March 2014, but, as in other respects in these reasons, I take the view that the events of 28 and 31 March 2014 were effectively a continuation of those of 27 March, and I make the same holding in relation to those later days as well.

161    That leaves the liability of the unions. Subsections (1)-(3) of s 793 of the FW Act provide as follows:

Conduct of a body corporate

(1)    Any conduct engaged in on behalf of a body corporate:

(a)    by an officer, employee or agent (an official) of the body within the scope of his or her actual or apparent authority; or

(b)    by any other person at the direction or with the consent or agreement (whether express or implied) of an official of the body, if the giving of the direction, consent or agreement is within the scope of the actual or apparent authority of the official;

is taken, for the purposes of this Act and the procedural rules, to have been engaged in also by the body.

State of mind of a body corporate

(2)    If, for the purposes of this Act or the procedural rules, it is necessary to establish the state of mind of a body corporate in relation to particular conduct, it is enough to show:

(a)    that the conduct was engaged in by a person referred to in paragraph (1)(a) or (b); and

(b)    that the person had that state of mind.

Meaning of state of mind

(3)    The state of mind of a person includes:

(a)    the knowledge, intention, opinion, belief or purpose of the person; and

(b)    the person’s reasons for the intention, opinion, belief or purpose.

162    In March 2014, Messrs Dodd, Thornton and Sharp were employed organisers working in the normal course of their duties. It can hardly be doubted that everything they did was done on behalf of their employers, the unions. Pursuant to s 793(1), what they did, therefore, was also done by the respective unions. Further, by subs (2), the unions’ states of mind were those of the organisers concerned. By subs (3), “state of mind” includes knowledge, intention and purpose. Applying these circumstances to the framework of s 550, I hold that the unions were knowingly concerned in the employees’ contraventions of s 417, and were themselves, therefore, also in contravention of that section.

163    For the above reasons, and to the extent indicated, I uphold the applicant’s case against the respondents under s 417 of the FW Act.

THE COMMISSION’S ORDERS

164    I commence this part of my reasons by setting out the terms of s 420 of the FW Act:

Application must be determined within 2 days

(1)    As far as practicable, the FWC must determine an application for an order under section 418 or 419 within 2 days after the application is made.

Interim orders

(2)    If the FWC is unable to determine the application within that period, the FWC must, within that period, make an interim order that the industrial action to which the application relates stop, not occur or not be organised (as the case may be).

(3)    However, the FWC must not make the interim order if the FWC is satisfied that it would be contrary to the public interest to do so.

(4)    In making the interim order, the FWC does not have to specify the particular industrial action.

(5)    An interim order continues in operation until the application is determined.

It is provided in s 421, which is a civil remedy provision, that a person to whom an order made under s 420 applies must not contravene a term of the order.

165    The Commission’s s 420 orders, to which I have referred at para 103 above, were all in the same terms. Relevantly, they defined “industrial action” in terms that reflected s 19(1)(c) of the FW Act, as qualified by a provision reflecting those of subs (2). The main operative provisions of the orders were as follows:

4.1    The AMWU, AWU & CFMEU must stop, stop organising and refrain from further organising or recommencing the organisation of industrial action as defined in clause 6 by the Employees;

4.2    The AMWU, AWU & CFMEU Representatives must stop, stop organising and refrain from further organising or recommencing the organisation of industrial action as defined in clause 6 by the Employees.

4.3    The Employees must:

(a)    immediately stop all industrial action as defined in clause 6 that is happening at the time the lnterim Order comes into effect;

(b)    not further engage in, recommence) organise or threaten to engage in or organise industrial action as defined in clause 6 whilst the Interim Order remains in operation.

166    However, cl 8 of each of the orders was as follows:

This Interim Order shall come into effect at 3.00 pm on Friday, 28 March 2014 and shall cease to have effect until hearing and determination of the substantive matter.

The “substantive matter” was, of course, the applications of AP, BMC and JBA for orders under s 418 of the FW Act.

167    It was submitted on behalf of the respondents that, because of the terms of cl 8, the orders came into effect at 3.00 pm on 28 March 2014 and then immediately ceased to have effect until hearing and determination of the substantive matter. That is to say, the orders operated perversely apropos the familiar pattern: they were, in effect, suspended until the hearing and determination of the substantive matter, at which point they commenced to operate. As ridiculous as this result seems, it represents the literal reading of the orders. Counsel for the applicant submitted that it was as clear as may be that the Commission mistakenly included the words “cease to” in cl 8, its intention being that the orders would have effect until hearing and determination of the substantive matter. Counsel for the respondents was not heard to controvert that proposition, but submitted that, in the coercive instrument of a public authority breach of which carried penal consequences, what mattered was what the orders said, not what the Commission intended.

168    It was not entirely clear to me what jurisprudential principle was relied on by counsel for the applicant for the proposition that cl 8 of the orders should not be given its literal meaning. He did not rely on Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (1980) 147 CLR 297. He did not rely on s 15AB(1)(b)(ii) of the Acts Interpretation Act 1901 (Cth) (“the AI Act”). He submitted that the Commission had made a “slip”, but referred to no authority which would give legal consequences to that circumstance; and, although the Commission may have been entitled under the slip rule to correct what it considered to be an obvious error in its orders, no such correction had been made by 31 March 2014. The rule is concerned with corrections, not with construction: Flint v Richard Busitill & Co Pty Ltd (2013) 216 FCR 375, 379-380 [19]-[20]. Counsel submitted that, at base, the Commission’s orders were documents like any other, and had to be construed according to the usual principles, which included the rule that a construction that produced an absurd result should, wherever possible, be avoided.

169    There is no evidence of the procedural setting in which the orders were made by the Commission on 28 March 2014. The court does not know whether the respondents, or any of them, were or was represented. The court does not have the benefit of a transcript, if there were one, of the occasion when the orders were made.

170    In my view, a fundamental problem with the orders was that, read literally, they did not comply with s 420 of the Act. By s 420(2), the Commission had no choice but to make an order, or orders, that the industrial action stop, not occur or not be organised. By subs (5), such an order continued in operation until the application was determined. Read literally, so much of cl 8 of the orders as followed the date was directly inconsistent with this subsection and was not, in my view, a valid provision. The legislature having spoken directly, it was not the Commission’s role to set a time at which the orders would cease to have effect. It was most certainly not its role to set a time which was inconsistent with the statute.

171    I take the view that the words “and shall cease to have effect until hearing and determination of the substantive matter” were not validly part of the Commission’s orders and were themselves of no effect. The only valid provision of cl 8 was so much of it as specified when the orders would come into effect. It follows that the respondents’ argument that the orders ceased to have effect on 28 March 2014 must be rejected. The orders were in effect on 31 March 2014.

172    Did the respondents, or any of them, contravene one or more of the orders? I have rejected the applicant’s case under s 417 that Messrs Dodd, Thornton and Sharp organised the industrial action taken by the employees of BMC and JBA. Consistently, I reject the contention that they organised industrial action on 31 March 2014 in contravention of the orders. If they did not organise this industrial action, necessarily, neither did the unions.

173    However, the employees of JBA and the mechanical trades employed by BMC contravened cl 4.3 of the applicable order when they took industrial action on 31 March 2014. This was in contravention of s 421(1) of the FW Act. It is the applicant’s case that Messrs Dodd, Thornton and Sharp, and also the unions by which they were respectively employed, were knowingly concerned in these contraventions within the meaning of s 550(2)(c), and were thereby taken to have contravened s 421 themselves. For the reasons I have given in relation to the corresponding issue arising in connection with the employees’ contraventions of s 417, I accept that case.

ADVERSE ACTION

174    Section 346 of the FW Act provides as follows:

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

(a)    is or is not, or was or was not, an officer or member of an industrial association; or

(b)    engages, or has at any time engaged or proposed to engage, in industrial activity within the meaning of paragraph 347(a) or (b); or

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

175    The presently relevant provisions of s 347 of the FW Act provide as follows:

A person engages in industrial activity if the person:

…

(b)    does, or does not:

…

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

…

(g)    makes a payment:

(i)    that, because of Division 9 of Part 3‑3 (which deals with payments relating to periods of industrial action), an employer must not pay; or

(ii)    to which an employee is not entitled because of that Division.

176    Under item 5(b) in the table in s 342(1) of the FW Act, it is adverse action if an employee takes industrial action against his or her employer.

177    Under item 7 in the table in s 342(1) of the FW Act, it is adverse action if an industrial association, or an officer or member thereof, does any of the following things against a person:

[T]he industrial association, or the officer or member of the industrial association:

(a)    organises or takes industrial action against the person; or

…

(c)    if the person is an independent contractor—takes action that has the effect, directly or indirectly, of prejudicing the independent contractor in relation to a contract for services….

178    In relation to so much of the applicant’s case under s 346 as is linked to subpara (iv) of s 347(b), it is said that the request for the site to be manned by a full-time level 3 first-aider was a lawful request made by, or a requirement of, the unions. It is said that AP, BMC and JBA did not comply with that request or requirement. It is said that refusing to work on 28 March 2014 and on the morning of 31 March 2014 was adverse action taken against those companies because they did not so comply.

179    Before turning to the merits of the applicant’s case under s 346, it is convenient to deal with an argument advanced on behalf of the respondents that s 347(b)(iv) was to be read down to be applicable only to requests and requirements which related to the participation of members of industrial associations in the affairs of those associations. This argument relied heavily on the Explanatory Memorandum for the Fair Work Bill 2008 (“Cth”). Before turning to that constructional aid, however, I should say something about the relevant legislative history.

180    Before its repeal in 1989, it was s 5 of the Conciliation and Arbitration Act 1904 (“Cth”) (“the C&A Act”) which provided the kind of protection as is now the subject of Div 4 of Pt 3-1 of the FW Act. But s 5 was much more limited than Div 4 now is. By s 5(1)(e) and (f), it was an offence for an employer to dismiss an employee, to injure him in his employment or to alter his position to his prejudice, by reason of the circumstance that the employee –

(e)    has absented himself from work without leave if –

(i)    his absence was for the purpose of carrying out his duties or exercising his rights as an officer or delegate of an organization; and

(ii)    he applied for leave before he absented himself and leave was unreasonably refused or withheld; or

(f)    being an officer, delegate or member of an organization, has done, or proposes to do, an act or thing which is lawful for the purpose of furthering or protecting the industrial interests of the organization or its members, being an act or thing done within the limits of authority expressly conferred on him by the organization in accordance with the rules of the organization.

These provisions were repeated, with no more than minor grammatical variations, as paras (h) and (j) of s 334(1) of the Industrial Relations Act 1988 (Cth) (“the IR Act”). Despite a major legislative revision when the IR Act was re-named the Workplace Relations Act 1996 (Cth) (“the WR Act”), these provisions were, in point of substance, retained as paras (m) and (n) of s 298L of the re-named Act (albeit now referable to industrial associations generally rather than, as previously, to registered organisations). And that continued to be the situation after the next major legislative revision, that effected by the Workplace Relations Amendment (Work Choices) Act 2005 (Cth): see paras (n) and (o) of s 793(1) of the WR Act as so amended.

181    The provisions referred to were specifically limited to conduct done as a member, or as an officer or member, of an organisation or (later) an industrial association. Section 347 of the FW Act is not so limited. It is one of a series of provisions which rely heavily on pre-existing legislation but which are, in many respects, much broader in their scope and operation. On any view, the introduction of these provisions in 2009 was a significant exercise in law reform. A notable feature of s 347 is that any person may engage in industrial activity, if the circumstances meet the terms of the section. It is only in the definition of “adverse action” in s 342 that the status of the parties involved becomes relevant. Even then, by item 7 in the table, it is adverse action to do the things referred to against a person. Further, only under para (d) of that item is the person required to be a member of the industrial association concerned.

182    As mentioned above, the respondents relied on a number of passages in the Explanatory Memorandum in their submission about the scope of s 347(b)(iv). I do not believe that I am entitled, under s 15AB(1) of the AI Act, to refer to that material. I take it that the respondents do not rely on para (a) of s 15AB and, so far as para (b) is concerned, there could be no suggestion that s 347(b)(iv) of the FW Act is ambiguous or obscure or that the ordinary meaning conveyed by the text of it would lead to a result that was manifestly absurd or unreasonable. In taking that view, I have had regard, as I must, to the matters referred to in subs (3) of s 15AB.

183    I shall, however, proceed to consider the respondents’ argument on its merits, both for the sake of completeness and because counsel for the applicant did not submit that reference could not be made to the Explanatory Memorandum.

184    Of the provisions on the memorandum on which counsel for the respondents relied, it is sufficient to refer to the following:

1338.    The principal protections in Part 3-1 have been divided into protections relating to workplace rights (which can be broadly described as employment entitlements and the freedom to exercise and enforce those entitlements) and engaging in industrial activities (which encompasses the freedom to be or not be a member or officer of an industrial association and to participate in lawful activities, including those of an industrial association).

…

1400.    Division 4 provides protections in relation to a person's freedom of association and participation or non-participation in industrial activities. The protections in the Division revolve around the right to engage or not engage in certain industrial activities - namely, being a member or officer of an industrial association or engaging in activities of industrial associations. The Division prevents adverse action, coercion and misrepresentations in connection with these industrial activities. It also prevents inducements to be, or not be, a member of an industrial association.

1401.    All of the protections relate to industrial associations. Industrial association is defined in clause 12. The definition covers unions and employer associations (whether or not registered or recognised under a law), and also covers employees and/or independent contractors who come together informally in the workplace for a purpose which includes protecting and promoting their interests in matters concerning their employment.

Illustrative example

Andrea works at the Bouncy Bluebell Childcare Centre. The manager, Bernadette, has been asking child care workers to put away heavy equipment at the end of each day while also watching the children. This requires the staff to leave the children without supervision. Andrea is concerned that this breaches the relevant government regulations. She suggests to a number of her co-workers that they meet after work to talk about whether they should take a collective approach on this issue, including reporting the issue or contacting the union. If the other employees agree to the meeting, they will be an industrial association within the meaning of clause 12.

Clause 346 - Protection

Clause 347 - Meaning of engages in industrial activity

Clause 348 - Coercion

Clause 349 - Misrepresentation

Clause 350 - Inducements - membership action

1402.    The industrial activity provisions protect:

•    being or not being a member or officer of an industrial association;

•    participation or non-participation in other lawful industrial activity;

•    non-participation in unlawful industrial activity.

…

1414.    Clauses 346, 348 and 349 likewise protect persons from adverse action, coercion and misrepresentation in relation to participation and non-participation in lawful industrial activities (the activities set out in paragraph 347(b)).

1415.    Subparagraphs 347(b)(i) to (v) provide that a person engages in industrial activity if she or he does or does not:

•    become involved in establishing an industrial association (subparagraph 347(b)(i));

•    organise or promote a lawful activity for, or on behalf of, an industrial association (subparagraph 347(b)(ii));

•    encourage or participate in a lawful activity organised or promoted by an industrial association (subparagraph 347(b)(iii));

•    comply with a lawful request made by, or requirement of, an industrial association (subparagraph 347(b)(iv)); or

•    represent or advance the views, claims or interests of an industrial association (subparagraph 347(b)(v)).

1416.    Subparagraphs 347(b)(i) to (v) can broadly be described as ‘participation protections’ and cover a broad range of lawful participation activities including:

•    carrying out duties or exercising rights as an officer of an industrial association; and

•    participating in union discussions at the workplace where a union has exercised a right of entry for this purpose.

The protections operate in a wide range of situations. For example:

•    an employee is protected from adverse action by their employer because they are involved in establishing an industrial association;

•    an independent contractor is protected from action taken by an industrial association with intent to coerce the contractor to comply with a direction given by the industrial association; and

•    a person is protected from a false or misleading representation about the obligation to pay a bargaining services fee on which the person could be expected to rely.

185    It must be said that the respondents derive some assistance from at least some of the things stated in the Explanatory Memorandum, most notably from the description of subparas (i)-(v) of s 347(b) as “participation protections”. However, their submission also encounters a number of problems.

186    The first problem, it needs hardly to be said, is that the submission flies in the face of the actual words of subpara (iv). That is not fatal to the submission, of course, since the respondents’ very point is that these wide words could not have been intended to be read literally. But, if one thing is clear about the drafting of the FW Act, it is that a great deal of attention was given to its every word. It is a detailed and prescriptive piece of legislation. Further, as mentioned above, it is clear that Div 4 of Pt 3-1 departed from previous legislation, and did so as a matter of conscious policy.

187    Secondly, there are indications in the memorandum that suggest that the kind of participation in the affairs of associations for which the respondents contend was no more than an instance, or example, of what would fall within the terms of the legislation. Here I have in mind para 1338, in which it is stated that industrial activities covers “the freedom … to participate in lawful activities, including those of an industrial association” (emphasis added); the second bullet point in para 1402, which is not limited in the way for which the respondents contend; the reference in para 1416 to the protections operating in a wide range of situations; and the fourth bullet point in para 1416 – the independent contractor example – which might have application in an internal participatory context but which, in its most obvious setting, would be unlikely to do so.

188    Thirdly, this is not a case in which the intention of the legislature, differing from the literal, grammatical reading of the provision in question, is self-evident. Save to say that Div 4 was limited to “protections to a person’s freedom of association and participation or non-participation in the activities of industrial associations”, and to submit that nothing in the facts of the present case engaged s 347(b)(iv) as properly construed, counsel was unable to articulate how this subparagraph should be limited. When I put to him the case of a shop steward complying with a request by another industrial association (ie not the one of which he or she was a member) to convene a meeting of all workers at lunch time (ie not involving any stoppage of work), counsel was forced to concede that that would not be industrial activity within the meaning of s 347(b)(iv) and, if the shop steward were dismissed for having done so, that would not amount to a contravention of s 346 on the part of the employer.

189    It is, I accept, possible that the drafter of s 347 understood that he or she was engaged in the task of setting out instances of conduct by way of participation in the affairs of industrial associations. It is possible that he or she did not realise what was the potential reach of para (b)(iv), if read and applied literally. But what the drafter had in mind, subjectively, is not the point: Certain Lloyd’s Underwriters v Cross (2012) 248 CLR 378, 390 [25]. The point is the intention of the legislature to be discerned in the words used, having regard to history, background and context, and to such materials as are properly available conformably with s 15AB of the AI Act.

190    At base, the respondents’ problem is that pointing to participation as the limiting context for s 347(b)(iv) does not take them the distance required. Read literally, that provision may indeed appear to travel beyond the kind of situations which the legislature had in mind, but the court does not know what it would have done about the problem had it been drawn to its attention.

191    Turning to the authorities, counsel for the respondents submitted that it was only my own judgment in Esso Australia Pty Ltd v Australian Workers’ Union (2015) 253 IR 304 that contained a reasoned refutation of the submission which is now put. As it happens, the submission which I rejected on that occasion was not the same as the one which is now put. That submission, rather, was that s 347(b)(iv) did not cover a fact situation in which the request by the association was for the making or variation of an enterprise agreement, that being the province of s 341(2)(e). However, counsel appeared to accept that I could not, consistently with the reasoning employed in Esso, accept the submission which he now makes.

192    In Esso, I said (253 IR at 365 [199]):

More directly to the point of the respondent’s present submission, there was, in the WR Act, nothing which provided any protection for an employer engaging in industrial activities. In this respect, ss 346 and 347 of the FW Act must be regarded as substantive instruments of law reform. Through the operation of s 347(b)(iv), it is now recognised that any person may “[engage] in industrial activity“ if he or she does not comply with a request made by, or with a requirement of, an industrial association. In particular situations, there may be an area of overlap as between this provision and s 341(2)(e), but each, in my view, is a substantive provision to which effect must be given. I can see no sign of any legislative intention that, as a matter of construction, s 347(b)(iv) was to have no operation where the request or requirement was to make an enterprise agreement, at all or on particular terms.

On appeal, Siopis and Buchanan JJ agreed with this conclusion – Esso Australia Pty Ltd v Australian Workers’ Union (2016) 258 IR 396, 449 [1] and [205].

193    Of no less importance, in my view, is the circumstance that s 347(b)(iv) has been uncontroversially applied on many occasions in situations not confined to matters of participation in the affairs of the requesting organisation. Specifically, the provision has been applied where the request was made of an employer, and adverse action, coercion or the like was taken because the request was not complied with: see Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2015] FCA 225 at [251]-[252]; Director of the Fair Work Building Industry Inspectorate v Cartledge [2015] FCA 453 at [162]-[164]; Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union (The Mitcham Rail Case) [2015] FCA 1173 at [8]-[9], [12] and [16]-[17]; Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2015] FCA 1293 at [96] and [106]; Director of the Fair Work Building Industry Inspectorate v O’Connor [2016] FCA 415 at [86]-[87]; and Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union (No 2) [2016] FCA 436 at [32]-[33] and [61]-[63]; Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (the Webb Dock case) [2017] FCA 62 at [20] and [22]. It may be true that the application of the provision in situations of these kinds was not placed in contest in the cases concerned, but it would not be right for me, as a single Judge of the court, to depart from this consistent pattern of authority upon the strength of an argument which is respectable more so than compelling. If the respondents’ point is to be upheld, that will, in my view, require the judgment of a Full Court.

194    For the above reasons, I proceed on the basis that s 347(b)(iv) is available to the applicant in the present case.

195    For the reasons given in paras 66-85 above, I accept the applicant’s case that, at the meeting in the afternoon of 27 March 2014, Messrs Dodd, Thornton and Sharp at least requested the engagement of a full-time level 3 first-aider on the site. For the reasons given in para 101 above, I find that that request was not re-made on the morning on 28 March 2014, but remained extant and operative. For the reasons given in para 111 above, I find that that request was not re-made on the morning on 31 March 2014, was extant and operative at the commencement of the meeting that day, but was soon subsumed into the settlement which the parties reached.

196    By not complying with the organisers’ request at any time from the afternoon of 27 March 2014 until the morning of 31 March 2014, the three companies engaged in industrial activity within the meaning of s 347(b)(iv) of the FW Act.

197    With respect to s 347(g) of the FW Act, s 474(1), which is within Div 9 of Pt 3-3, provides as follows:

(1)    If an employee engaged, or engages, in industrial action that is not protected industrial action against an employer on a day, the employer must not make a payment to an employee in relation to:

(a)    if the total duration of the industrial action on that day is at least 4 hours—the total duration of the industrial action on that day; or

(b)    otherwise—4 hours of that day.

198    It is established on the pleadings that neither BMC nor JBA made, or agreed to make, a payment to its employees for the whole of the day’s work on 22 March 2014. Any such payment, if made, would have been in contravention of s 474. By not making such a payment, those companies did not engage in industrial activity within the meaning of s 347(g) of the FW Act.

199    The proposition that Messrs Dodd, Thornton and Sharp took adverse action against AP, BMC and JBA was put by the applicant in various ways. First, it was said that the JBA employees and the mechanical trades employed by BMC took industrial action against those companies on 28 and 31 March 2014, and that the organisers organised it within the meaning of item 7(a) in the table in s 342(1). I have upheld the applicant’s allegation that those employees took industrial action on those days, but I have not yet been required to consider “against” whom that action was taken. I would hold that it was taken against BMC and JBA, but not against AP. In my view, industrial action of the kind referred to in s 19(1)(c) of the FW Act can only be taken “against” the employer of the employees there referred to.

200    I have held that the industrial action taken against BMC and JBA was not organised by Dodd, Thornton and Sharp, or by one or more of them. To the extent that the applicant’s case relies on item 7(a), it must, therefore, be rejected.

201    Secondly, it was said that the conduct of the JBA employees and the mechanical trades employed by BMC in refusing to work and sitting in the sheds on 28 and 31 March 2014 was organised, counselled, procured or induced by each of Dodd, Thornton and Sharp, thereby directly or indirectly prejudicing BMC and JBA in relation to the contracts which they had with AP within the meaning of item 7(c) in the table in s 342(1). It will be apparent from the factual findings already made that I am not satisfied that these organisers organised, counselled, procured or induced the relevant actions of the employees.

202    Thirdly, it was said that, on 28 and 31 March 2014, the JBA employees and the mechanical trades employed by BMC took industrial action against their employers within the meaning of item 5(b) in the table in s 342(1), that they did so because those employers had not complied with the unions’ request for the engagement of a full-time level 3 first-aider on the site and had not paid for lost time on 22 March, that they thereby contravened s 346 and that Messrs Dodd, Thornton and Sharp were knowingly concerned in the contraventions within the meaning of s 550(2)(c). For the employees’ contraventions of s 346, the objective facts are as the applicant alleges: the employees did take industrial action against their employers, those employers had not complied with the unions’ first-aider request and the employers had not made a payment that would have amounted to a contravention of s 474.

203    A more difficult question is whether the employees took that industrial action because their employers had not complied with the first-aider request and had not paid for lost time. As I understand the applicant’s position, he would seek to rely on s 361(1) of the FW Act, which provides as follows:

(1)    If:

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

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

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

In my view, the “person” referred to in this provision is the person against whom the allegation is made, being a party to the proceeding in which it is made. Not only is that the natural reading of the subsection, it accords strongly with the policy behind this longstanding legislation provision. While the sense of imposing on a respondent the onus of proving that his or her intent was not as alleged is readily to be appreciated, the same cannot be said of a requirement that he or she carry the onus of proving that someone else’s intent was not as alleged. The employees who took the industrial action of which the applicant complains are not parties to this proceeding. To the extent that it is part of the applicant’s case to establish that they contravened s 346, the applicant gets no assistance, I would hold, from s 361(1).

204    At the time when the employees decided – either of their own volition or on the direction of Mr Cuddy – to sit in the sheds on the afternoon of 27 March 2014, the HSRs’ request for the engagement of a full-time level 3 first-aider had not yet become the unions’ request. Accordingly, the applicant does not make this allegation with respect to that afternoon. But he does make it with respect to 28 March and the morning of 31 March. By then the unions, through their organisers, had lent their weight to the request.

205    Notwithstanding that circumstance, and in the absence of the evidence of any employee other than Messrs Cuddy and Cockrane (whose evidence on this point is of no assistance to the applicant), the most natural inference to be drawn on the subject of the employees’ reasons for refusing to work is that the companies had not complied with their own demands in relation to the first-aider and associated safety issues. They had, after all, taken action on these issues on 27 March 2014. There is no particular ground for inferring that it was the fact that the unions had made a request for these things that was amongst the employees’ reasons for taking industrial action on 28 and 31 March. I am not satisfied that it was. Consistently with authorities in the line of Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500, Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2014) 253 CLR 243 and Construction, Forestry, Mining and Energy Union v Endeavour Coal Pty Ltd (2015) 231 FCR 150, I could not uphold the applicant’s proposition that the employees contravened s 346 of the FW Act, as linked with s 347(b)(iv), on those days.

206    Turning to the allegation that the employees took industrial action because BMC and JBA had not paid for lost time, of those who are alleged to have contravened s 346 of the FW Act in this way, only Messrs Cuddy and Cockrane gave evidence. I have already rejected Mr Cuddy’s denial that no lost time claim was advanced at the meeting with the company representatives on 27 March 2014. He was a party to such a claim, and it related to his own circumstances no less than to those of the other employees of JBA who had lost pay on 22 March 2014. By s 360 of the FW Act, it will sufficient if one of the reasons why he took adverse action against JBA was that it had not made a payment of a kind referred to in s 347(g). I am satisfied that it was a reason for Mr Cuddy’s industrial action on 28 and 31 March 2014 that JBA had not paid him for the time that he refused to work on 22 March 2014.

207    Although Mr Cockrane could not recall being at the meeting with the company representatives on 27 March 2014, he was at the meeting in the car park, and the evidence, such as it is, is that the HSRs attended this meeting. In Mr Cockrane’s case, I would reach the same conclusions as I have in respect of Mr Cuddy in the previous paragraph.

208    It will be apparent that I have inferred what was one of the reasons of Messrs Cuddy and Cockrane from the nature of one of the claims made in the meeting with the company representatives on 27 March 2014, and from the fact that they associated themselves with that claim. I do not draw the same inference with respect to the other employees of BMC and JBA who attended the meeting in the car park and took industrial action on 28 and 31 March 2014. Here I refer to my findings in para 195 above that nothing was said at that meeting about lost time payments. I am also unprepared to find that those employees acted for reasons which included that referred to in s 347(g) in the absence of any attempt by counsel for the applicant to elicit evidence from the five witnesses who attended the car park meeting that grievances or concerns were expressed, at that meeting, about the subject of lost time. It must, of course, be remembered that there was a very obvious reason why the employees would have taken industrial action on 27, 28 and 31 March 2014: that the companies had failed to accede to their request for the employment of a level 3 first-aider on the site. That is to say, the mere fact of the industrial action does not give rise to an inference that it must have been the companies’ refusal to pay for the time lost on 22 March that explained the employees’ actions. In this state of the evidence, and without s 361(1) having any role to play, I am not satisfied that BMC’s or JBA’s failure to make such a payment was an operative reason for the adverse action taken by their employees, other than Messrs Cuddy and Cockrane themselves.

209    The position reached, therefore, is that Mr Cuddy took adverse action against JBA, and Mr Cockrane took adverse action against BMC, in contravention of s 346 of the FW Act in so far as that section relies on s 347(g).

210    With respect to Messrs Dodd, Thornton and Sharp, for reasons analogous to those given in paras 149-159 above, I hold that they were knowingly concerned in that adverse action within the meaning of s 550(2)(c) of the FW Act. In the present context, it is necessary to consider also whether they had knowledge of the reason that made the adverse action a contravention of s 346. Here I refer to my findings in para 40 above: the organisers were, I would find, well aware that a reason that Messrs Cuddy and Cockrane took industrial action against their employers was that the latter had not paid for the time lost on 22 March 2014.

211    With respect to the liability of the unions, I repeat what I have said in paras 161-162 above.

212    In the result, I uphold the applicant’s case under s 346 of the FW Act to the extent only that it depends on Messrs Cuddy and Cockrane having contravened that section and on the respondents having been knowingly concerned in those contraventions. Otherwise, the applicant’s case under s 346 must be rejected.

COERCION

213    Section 348 of the FW Act provides as follows:

A person must not organise or take, or threaten to organise or take, any action against another person with intent to coerce the other person, or a third person, to engage in industrial activity.

214    In the applicant’s first way of putting his case under s 348, the action which Messrs Dodd, Thornton and Sharp “organised and/or took … against AP and/or BMC and/or JBA” was to have organised, counselled, procured or induced the industrial action which the employees of JBA and the mechanical trades employed by BMC took on 27, 28 and 31 March 2014. At the factual level, I have rejected the allegation that the three union organisers did these things.

215    The second way in which the case was put was that, by taking the industrial action referred to, the employees themselves contravened s 348 of the FW Act, and the three organisers were knowingly concerned in those contraventions within the meaning of s 550(2)(c). That is to say, the case is a close analogue of one of the ways in which the applicant puts his case under s 346. As there, so too here, the applicant’s problem, in my view, is with proof of the employees’ intent. For the reasons I have given in relation to s 346, I hold that s 361(1) does not transfer the onus of proof on to the respondents when the intent concerned is not their own but that of persons who are not parties to the proceeding. Proof of the employees’ intent is, therefore, a matter for the applicant.

216    For reasons given at paras 203-205 above, it has not been established that the employees intended to coerce their employers to engage in industrial activity constituted by complying with the unions’ request that a level 3 first-aider be engaged on the site. They may have intended to coerce their employers to comply with their own, or their HSRs’, like request, but that is not covered by the statute. For reasons given at para 208 above, save in relation to Messrs Cuddy and Cockrane, it has not been established that the employees intended to coerce their employers to engage in industrial activity constituted by paying for time lost on 22 March 2014.

217    In so far as the applicant’s case against the organisers under s 550(2)(c) relies on the intent of Messrs Cuddy and Cockrane themselves, the matter is not so straightforward. For reasons already set out, I accept that it was a reason why they took industrial action against their employers was that the latter had not paid the time lost on 22 March 2014. Might it likewise be concluded that, in taking that action, they intended to coerce those employers to make such a payment?

218    In Esso, Buchanan J said (with the assent of Siopis J) (258 IR at 396, 443 [174]):

Coercion has been held to require the satisfaction of two elements: negation of choice; and, the use of unlawful, or illegitimate or unconscionable means (see the discussion in Finance Sector Union of Australia v Commonwealth Bank of Australia (2000) 106 FCR 16; Seven Network (Operations) Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (2001) 109 FCR 378 …; Fair Work Ombudsman v National Jet Systems Pty Ltd … (2012) 218 IR 436 and Victoria v Construction, Forestry, Mining and Energy Union (2013) 218 FCR 172).

If otherwise the components of this aspect of the applicant’s case are established, there is no doubt about the use of unlawful means: the applicant’s success under s 417 is sufficient for those purposes. The more problematic question is whether Messrs Cuddy and Cockrane took industrial action on 27, 28 and 31 March 2014 with the intent of negating their employers’ choice in relation to paying for lost time.

219    Here it is important to note that, unlike s 361, s 360 refers only to “a particular reason”. Section 348 is concerned with a person’s intent, not with his or her reason for acting. The existence of the first-aider claim as a basis for the industrial action taken by these employees, and the general predominance which that claim had in the meeting with the company representatives on 27 March 2014, complicates the applicant’s task of proving that their intent in taking that action was to negate their employers’ choice in relation to the lost time claim. This was an element of the applicant’s case which had to be made good on the probabilities, and was barely explored in the cross-examination of Messrs Cuddy and Cockrane. Although the applicant comes close to the line in relevant respects, I am not satisfied that he has crossed it. I am not prepared to infer that it was the intent of these employees to negate their employers’ choice.

220    For the above reasons, the applicant’s case under s 348 of the FW Act must be rejected.

DISPOSITION OF THE PROCEEDING

221    I shall list the proceeding for the purpose of hearing the parties on the orders proper to reflect the success which the applicant has achieved under ss 346, 417 and 421 of the FW Act, and as to penalties.

Associate:

Dated:    1 March 2017

SCHEDULE OF PARTIES