FEDERAL COURT OF AUSTRALIA

Australian Building and Construction Commissioner v Upton (The Gorgon Project Case) [2017] FCA 847

ORDERS

THE COURT DECLARES THAT:

1.    The first respondent contravened ss 346(a), 348 and 500 of the Fair Work Act 2009 (Cth).

2.    The second respondent contravened ss 346(a), 348 and 500 of the Fair Work Act 2009 (Cth).

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

REASONS FOR JUDGMENT

BARKER J:

1    In this proceeding, the applicant, the Australian Building and Construction Commissioner, alleges contraventions of ss 346(a), 348 and 500 of the Fair Work Act 2009 (Cth) (FW Act) arising from the conduct of the first respondent, Mr Bradley Upton, on 3 December 2015 while Mr Upton was exercising entry rights under the FW Act at the Gorgon Project located on Barrow Island, Western Australia. The Commissioner alleges that, under the FW Act or the general law, the second respondent, the Construction, Forestry, Mining and Energy Union (CFMEU) is vicariously liable for Mr Upton’s conduct, Mr Upton being an organiser employed by the CFMEU.

2    Section 346(a) proscribes the taking of adverse action against another person because the other person is or is not, or was or was not, an officer or member of an industrial association.

3    Section 348 provides that a person must not organise or take, or threaten to organise or take, any action against another person with “intent to coerce” the other person, or a third person, to engage in industrial activity.

4    Section 500 provides that a permit holder exercising, or seeking to exercise, rights under Pt 3-4 of Ch 3 of the FW Act, must not intentionally hinder or obstruct any person, or “otherwise act in an improper manner”.

5    Mr Upton filed his defence on 23 August 2016. As he was entitled to do, he initially claimed penalty privilege and pleaded entirely non admissions in his defence. However, at trial, following the close of the Commissioner’s case, Mr Upton elected to file an amended defence and gave evidence. The CFMEU did not adduce any evidence at the hearing.

6    Mr Upton denies that he has contravened the FW Act, and the CFMEU denies it is liable for any contraventions by reason of Mr Upton’s conduct.

Commisioner’s pleaded case

7    The essence of the Commissioner’s case as pleaded is that:

    On or about 27 November 2015, Mr Upton issued an entry notice to Chevron which provided that he intended to enter Barrow Island on 3 December 2015 to hold discussions with employees pursuant to the authority of s 484 of the FW Act. The entry notice was signed by Mr Upton and dated 27 November 2015, and indicated that he intended to hold discussions in three areas on the Gorgon Project, including the Rayseville crib area ([10] Statement of Claim (SOC)).

    On the morning of 3 December 2015, Mr Upton entered the Gorgon Project pursuant to the entry notice ([11] SOC).

    At about 10:00 am, being the usual start time of the morning break for employees of CBI Constructors Pty Ltd, Kentz Pty Ltd, RCR Resources Pty Ltd and Tempo Construction & Maintenance Pty Ltd:

-    Mr Upton attended the main crib room in the Rayseville crib area ([12] SOC);

-    approximately 50 to 60 employees of CBI, Kentz, Tempo and RCR were present in the main crib room for a meeting in which Mr Upton would address these employees ([13] SOC); and

-    Mr Upton was standing in the main crib room with a group of about nine individuals. A spokesperson introduced the nine individuals by name and role. (There is a dispute as to whether Mr Upton was the only union “official” among them. He says he was the only official, the Commissioner says there were others. It is not in dispute that others among the group of nine included site delegates from other unions, including the Electrical Trade Union and Australian Metal Workers Union) ([14] SOC).

    Present at the meeting were also employees who were not members of an industrial association, including Mr Keevers (non-union employees) ([20] SOC).

    Mr Upton was introduced by a spokesperson at the meeting who said ([15] SOC):

Can I have everyone’s attention? This is Brad, he is from the CFMEU. He would like to have a word with everyone.

    Mr Upton addressed the employees present in the meeting for approximately 10 minutes ([16] SOC), during which he said ([17] and [18] SOC):

-    “The fucking 90 dog cunts that resigned from the union the day after we fucking signed the EBA after we got the conditions we got now, this is a fucking union site. If you don’t fucking like it, fuck off somewhere else. We got you these conditions, we know who you are. We’re going to put your names on the back of the toilet doors, we’re going to do standover tactics next year to let everyone know who you fucking dog cunts are.”;

-    “If you’re not in the union, you can fuck off somewhere else. This is a fucking union site, we have other union sites starting up next year and if you’re not in the union, you can fuck off too, you are not welcome.”;

-    repeatedly, the words, ‘‘fucking dog cunts”;

-    “We fought for these conditions, and if you don’t want to be in the union, go somewhere else, you are not welcome”; and

-    repeatedly, the words, “This is a union site”.

    The meeting concluded at about 10:30 am, which was the usual finish time of the morning break for employees of CBI Kentz Joint Venture (CKJV), Tempo and RCR ([19] SOC).

Mr Upton’s position

8    Mr Upton admits he said some of the words and phrases attributed to him, but argues that, when the context of what he actually said is properly understood, he did not, by his conduct, contravene any of the provisions of the FW Act referred to. He specifically denies he threatened “standover tactics”.

Issues

9    The issues thus arising are:

(1)    Did Mr Upton contravene s 346(a) of the FW Act?

(2)    Did Mr Upton contravene s 348 of the FW Act?

(3)    Did Mr Upton contravene s 500 of the FW Act?

(4)    If Mr Upton contravened any of those provisions, is the CFMEU liable for his contravention?

Evidence and Findings as to conduct

10    The Commissioner relies on evidence in the following affidavits to make out the applicant’s case, namely those of:

    Mr Ian James Wolsoncroft dated 2 February 2017 (Wolsoncroft affidavit);

    Mr Christopher Mitsopoulos dated 1 February 2017 (Mitsopoulos affidavit);

    Mr Dale Christopher Keevers dated 2 March 2016 (Keevers affidavit);

    Mr Keevers dated 4 July 2017 (Second Keevers affidavit); and

    Mr Travis David Charles Tawhai dated 27 February 2016 (Tawhai affidavit).

11    The Commissioner also relies on the oral evidence of Mr Keevers and Mr Tawhai given at trial. At trial, the redacted versions of the Keevers affidavit and Tawhai affidavit, including unredacted versions of Annexure “DCK-1” to the Keevers affidavit and Annexure “TDCT-1” to the Tawhai affidavit, as well as their oral testimony as to the redacted aspects of the affidavits, went into evidence following their examination in chief.

Agreed facts

12    Subject to the consideration below of contested allegations, much of the evidence in the proceeding was not in dispute and was agreed by the parties, namely:

    Chevron Australia Pty Ltd, in joint venture with other companies, at material times was the owner and developer of the Gorgon Project.

    At material times:

(1)    “building work” within the meaning of s 5 of the Fair Work (Building Industry) Act 2012 (Cth) (FWBI Act) was carried out at the Gorgon Project;

(2)    Chevron was the occupier of the Gorgon Project within the meaning of s 12 of the FW Act;

(3)    CBI and Kentz, in joint venture, were:

(a)    sub-contractors of Chevron engaged to carry out works on, and in connection with, the Gorgon Project;

(b)    persons who had entered a contract for services under which they arranged for building work to be carried out; and

(c)    “building industry participants” within the meaning of s 4(1) of the FWBI Act.

(4)    Tempo:

(a)    was engaged by CBI and Kentz, in a joint venture, to provide labour for the Gorgon Project;

(b)    employed employees to perform building work at the Gorgon Project; and

(c)    was a “building industry participant” within the meaning of s 4(1) of the FWBI Act.

(5)    RCR:

(a)    was engaged by CBI and Kentz, in a joint venture, to provide labour for the Gorgon Project;

(b)    employed employees to perform building work at the Gorgon Project; and

(c)    was a “building industry participant” within the meaning of s 4(1) of the FWBI Act.

Mr Keevers’ evidence

13    Mr Keevers’ evidence at trial was to the following effect.

14    By his affidavit which went into evidence, he explained that at material times he was employed by Tempo as a boilermaker on the Gorgon Project and that Tempo was engaged by CBI and Kentz to provide labour services on the construction of the project. He had been employed by Tempo on the project since 27 July 2015.

15    He recognised that Tempo and RCR had been engaged by the joint venture to supply labour to the project to keep labour numbers high in case there was union action. He understood there were enterprise bargaining agreement (EBA) negotiations in around October 2015 and there was a risk of industrial action.

16    As to the events of 3 December 2015, Mr Keevers said, in his affidavit, that:

6.    I was rostered to work on train 1 which was the main gas plant to commence work on the project from 6.00 am to 5.00 pm.

7.    It was about 10.00 am when I went for smoko at the ‘Revyesville’ crib room area which contains about five different crib rooms. I stopped for smoko in the main crib room (the crib room). There were roughly 50 to 60 people in the crib room, including workers from Tempo, RCR and CKJV. I was in the crib room at that time with my friend Travis Tawhai (Travis).

8.    Prior to smoko, I had not been advised of any planned meeting with a union official. It was the usual practice that when officials come to the project, the officials meet in a specific area, not in the crib huts, and the workers are advised of the meeting during the pre-start. There was no such notice on this morning of union officials coming to the project.

9.    As Travis and I entered the crib room I could see a group of guys standing at the front of the crib room near the kitchen side. I didn’t know who anyone was in this group of guys. We went to sit in our usual seats and there was a group of other workers who I didn’t know were sitting in our seats.

10.    One of the group of other workers sitting in our seats asked to the effect, … I responded saying … , I saw two of the three guys sittings in our seats get up and the third stayed sitting. As the third guy went to get up, a guy in the group standing near the kitchen said to the third guy to the effect, … .

11.    The third guy didn’t say anything, but got up anyway and I sat down with Travis and my other friends.

12.    We were sitting for no more than one or two minutes when a guy in the group standing near the kitchen started to address everyone in the crib room, first introducing all the guys standing with him. There was probably about ten men in this group from various unions (the union officials). I knew this because one of the union officials introduced them all as being from different unions, including the Electrical Trade Unions (ETU), Australian Metal Workers Union (AMWU) and the Construction, Forestry, Mining and Energy Union (CFMEU). The same guy introduced all the union officials by their name and their roles, I don’t recall their names but I do recall the roles included union officials and site delegates.

13.    I did not recognise or know any of the union officials. Three of the union officials were wearing clothes that had union badging and there was only one from each union being the ETU, AMWU and CFMEU. The site delegates who were standing in the union officials group were wearing their usual work clothes without any union insignia.

14.    There was one white male in the union officials group wearing a shirt that had a CFMEU badge near his left breast (the CFMEU official). I didn’t know his name. Shortly after the union officials group had been introduced, I heard the CFMEU official launch into a ten minute spray saying to the effect: …

CFMEU official: …

15.    The CFMEU official continued to repeat words similar to that but I specifically recall him also going on to say to the effect: …

Union officials: …

16.    I then heard someone from within the workers ask to the effect, … The CFMEU official responded to the effect, …

17.    The CFMEU official continued to repeat himself using profanities such as …, and I recall him specifically saying to the effect, … , He repeatedly said, …

18.    The other two union officials also addressed the group but didn’t say anything inappropriate or profane. There was no mention of people who weren’t in the union or it being a union site and certainly no mention of retribution or intimidation against non-union members.

19.    The whole meeting went for half an hour which took up our entire smoko. At the end of my smoko I just got up and left with my group of friends and returned to work. The union officials were still in the crib room. Immediately after leaving the crib room, Travis and I had a discussion and Travis told me the CFMEU official’s name and that he was from the CFMEU. I can’t remember his name.

20.    I felt very intimidated and disappointed that a union official was telling us that … . I didn’t appreciate having to sit through my smoko and listen to someone rant about something I didn’t want to listen to. I thought the CFMEU official’s behaviour and language was completely inappropriate for a union official.

17    In his oral evidence at trial, Mr Keevers gave direct testimony as to the words spoken on different occasions as follows:

    As to the words spoken as adverted to in [14] of his affidavit:

MR BOURKE: Now, Mr Keevers, could you go back to your first affidavit at tab 5, please. And could you go, please, to paragraph 14. Do you have that?---Yes, I do.

And you talk about the – you describe the CFMEU official with the CFMEU badge. And you say shortly after the union officials group had been introduced, ‘I heard the CFMEU official launch into a 10-minute spray.’ What did he say?---He started off by calling everyone – was talking about 90 dog cunts who had left the union the day after the EBA was signed. Continued to say that their names would be written on the back of toilet walls ..... using standover tactics next year, and continued on with the 90 dog cunts. Kept going on with this.

And did he say – was anything said about who the 90 dog cunts were?---No. In general it was basically towards anyone that was in the room and would say, ‘You would know – you know who you are and we’re going to put your names on the back of toilet walls.’ Yes.

    As to the words spoken as adverted to in [15] of his affidavit:

And then can I take you to paragraph 15. You refer to this person continued to repeat words similar to that. And you specifically recall him saying – what do you specifically recall him saying?---Recalling everyone 90 – like, dog cunts – basically continued to say that. Also that ‘if you’re not in a union, this is a union site’ – and ‘to fuck off if you don’t like it. We have – we got you the conditions here.’ So - - -

    As to the words spoken as adverted to in [16] of his affidavit:

And could I take you to paragraph 16. You mention someone asked – you heard someone ask a question. What was asked?---Whether there will be lay-offs at Christmas time. And there was – there was spoken that it would be - - -

Sorry. Who said – who answered in response to this?---It was the CFMEU official.

Right?---He said that the – that it would be – Tempo and RCR would be the first ones off.

    As to the words spoken as adverted to in [17] of his affidavit:

And can you go, please, to paragraph 17. You mention that there was – repeated himself using profanities and you caught him specifically saying something. What do you recall there?---He basically continued on, saying that, ‘If you didn’t like being on the site, this was a union site. If you didn’t like it, you could fuck off.’ Continued on with the – calling everyone dog cunts. And – yes. They had other – other sites coming up next year and no bother. Don’t bother going to those sites because they are union sites also.

Did the union official indicate whether he knew who the ‘fucking dog cunts’ were?---Yes. He – he said that they knew who they were and that they would write their names on the back toilet walls. Yes.

    As to the words spoken as adverted to in [20] of his affidavit:

You say at 20 – you spoke about feeling intimidated. Just moving from that, can you move to 21. Well, can – just firstly, why were you – what were you intimidated about?---Basically, I – I didn’t want to be sitting in the union meeting. I didn’t agree with what was being said and I felt that it was my right if I wanted to listen to it, then – yes. And it was very intimidating that this was actually said in a – in a general area.

18    As to what he then did, Mr Keevers said in his affidavit as follows:

21.    The next morning I spoke with my Area Construction Manager, Emossi (Emossi) about the union official’s behaviour and …

22.    About five days later,-Emossi came back to me and told me that … complaint and make a statement. I agreed and on 16 December 2015 my superintendent, Gary Mulroy, collected me from the work site and took me down to Emossi’s office. Emossi explained the process to me and gave me a two page form entitled ‘CKJV Investigation into Complaints by CKJV Employees in Relation to the Alleged Conduct of a Union Organizer During a Right of Entry on 3 December 2015’ (the complaint report). I was with Emossi when I filled in the form and handed it back to him. Annexed and marked ‘DCK-1’ is a copy of the complaint report.

23.    After filling in the form, Emossi asked me … nt. Emossi and I went straight down to where Travis was working and Emossi had a conversation with Travis in the crib room. I saw Travis also fill in the complaint report while we were all in the crib room.

19    Mr Keevers gave direct testimony about what he said as adverted to at [21]:

Can you move to paragraph 21. You say the next morning you spoke to the area construction manager, Emosi. What did you say to him?---I spoke to Emosi, saying that I was disappointed that it wasn’t brought to our attention that there was a meeting going to happen in our crib hut and that what was actually being said at the crib hut by the union official, I wasn’t – wasn’t happy with it and if – if I wanted to listen to it, then I would have been there, but I didn’t want to listen to it and I didn’t have the choice at that stage because it wasn’t told to us that there was going to be a union meeting in our crib hut.

20    Mr Keevers gave direct testimony about what he was told, as adverted to at [22]:

Just going to paragraph 22, you say five days later Emosi – is that the person’s first name or - - -?---Yes, it is. Yes.

Came back to you?---Yes. That’s correct.

What did he say to you?---He asked me to – if I would be willing to fill out a formal complaint – they had a form – and I said, yes, I would be happy to fill that out.

And did you complete that form?---Yes. I completed that – that form.

21    Mr Keevers gave direct testimony about what he was asked, as to which he adverted at [23]:

And going to paragraph 23, after filling out the form, did Emosi ask you something?---Yes. Emosi asked me if I knew of anyone else that would be willing to put in a complaint also that was offended by what was said and I said, ‘Yes.’

And who did you say?---Travis – Travis Tawhai.

And do you know him?---Yes, I do.

And are you friends with him?---Yes, I am.

22    Mr Keevers was cross-examined.

23    First, he was taken to the question of things written on the back of toilet walls in the bathrooms. He said:

    He did not recall that all sorts of things were written, such as things in favour of the union; or things against the union.

    However, he agreed that things were said on the back of toilet walls about individuals, by other individuals.

    He agreed that a lot of the comments on the back of those walls were derogatory.

24    He was then asked whether it was common for people on the island to swear when speaking to one another, in a non-aggressive sense. He said:

    It was not common for people to swear in the context of that meeting.

    But in conversations between employees they might use swear words.

    He agreed that those swear words would not be used in an aggressive sense.

    The swear words might “enhance a sentence”.

25    On the topic of being a union member, Mr Keevers confirmed:

    He was currently not a union member.

    He has been a union member in the past.

    He was not interested in attending the CFMEU meeting on the day in question.

    He would have preferred to have his tea break in peace on that day.

    He was a bit annoyed to find out that the CFMEU was having a meeting.

26    As to the number of unions in the Rayseville main crib area on the day in question, Mr Keevers said:

    there were three unions in the crib hut that day;

    he agreed he recognised a number of people wearing different union insignia;

    a number of people were introduced as union officials;

    his evidence would not have changed if he had been told that Chevron did not allow multiple union officials to conduct a right of entry meeting;

    he did hear later on that it was not supposed to be a multiple union meeting;

    his evidence would not have changed if he had been told that Chevron did not allow employees to wear union insignia; and

    he noted that there were three union officials in insignia and said it was not true that Mr Upton – the CFMEU official – was the only union official present.

27    He confirmed he was told, before the union officials started addressing the meeting, “Tell him if he’s not in the union, he can get fucked”.

28    He also said that, most probably, there was tension on site between union members and non-union members.

29    However, he said he would not say that being told to get fucked if you were not in the union was a demonstration of that tension.

30    He agreed, though, that that statement was an aggressive statement to him.

31    On the topic of Mr Upton’s address at the meeting, Mr Keevers:

    agreed that Mr Upton spoke for about 10 minutes;

    could not remember everything said, because he tried to “zone out” because he was not happy “with what I was hearing and I felt intimidated about it”;

    could not remember everything that Mr Upton said “because he kept going on with the ‘fucking dog cunts’”;

    said that, while he could not remember for the most part exactly what Mr Upton said, “there are a lot of things that stick in my mind, especially the ‘fucking dog cunts’ and ‘we know who you are’ and ‘we will use standover tactics’ and things like that”;

    could not remember the union topics that were addressed by Mr Upton;

    was aware that the EBA had been signed a few weeks before that and that the negotiations had dragged out over a year or two;

    knew that labour hire was brought in because there was a concern that there would be protected industrial action and that the labour hire was brought in to keep the numbers high;

    did not consider it possible that the first topic raised by Mr Upon was the new EBA, and said “no, not by the way he started. He straight out started with ‘you fucking dog cunts that left the union’”;

    did not accept the proposition that it was a “very interactive meeting” in the sense that there were questions from the floor, and said that there were only a couple of questions from the floor. He said that each union had a bit of a say and he did not have any problem with any of the other unions, or anything that they said. He said that none of them were aggressive, other than the CFMEU official;

    accepted that there was a question from one CFMEU member on the floor;

    rejected the proposition that he was not paying attention and that it was not true that there was only one question;

    agreed there were about 50 to 60 people at the meeting who were having their morning tea;

    said the main crib hut was about half the size of the court room in which the trial was occurring and the person who spoke did not have to speak up to be heard in that space, by reason that there was not a lot of chat going on in it and that a person speaking normally could have been heard by all 50 or so people in the crib room;

    when pressed, he said it was very quiet. There was not anyone talking or anything other than what was said. He said “No, not to my knowledge” when asked whether it was possible that given he could not remember everything that was said, that when he raised the issue of member resignation, Mr Upton was reporting back about a concern raised by members at an earlier meeting;

    also rejected the possibility that when Mr Upton said that this was a union site, what he was actually referring to was the fact that this was a union site where the EBA had been negotiated by a union and if people did not like that agreement they could go and work on a non-union site where the agreement had not been negotiated by a union. He said: “No. Basically he was saying that, ‘this is a union site and, if you didn’t want to be on a union site, you could fuck off’”;

    rejected the proposition that what Mr Upton said was actually raised by members on the floor; and

    also rejected the proposition that the issue of standover tactics was first raised by a member on the floor who described bringing in labour hire as a standover tactic.

32    Mr Keevers also agreed, by reference to a written complaint in the matter, that he made the complaint on 16 December, some 13 days after the meeting. He was also asked about the affidavit he had made and whether he had time to think about whether it was complete and whether he wanted to add anything to it, which he acceded to. He was then asked whether the first time he had stated that he felt “intimidated” was in that affidavit. He responded in the negative. When asked why he did not state in the complaint initially that he felt intimidated, he said that he was just describing the events that were held.

33    When it was put to him that he had earlier said that he was “disgusted” and, by inference, had not felt intimidated, he said that he had felt intimidated and that being disgusted was not different from being intimidated. He averred he felt intimidated.

34    In re-examination, Mr Keevers said that, as to the manner in which Mr Upton spoke at the meeting, it was not in a normal voice but a raised voice, and one could tell that he was “pissed off”. He thought that, at a union meeting, he would have spoken “a little bit more diplomatic than the way he was carrying on”.

Mr Tawhai’s evidence

35    Mr Tawhai’s evidence at trial was to the following effect.

36    In his affidavit evidence he indicated that he had been employed by RCR as a boilermaker on the Gorgon Project, but was now employed in Queensland. He had been employed by RCR from July 2015. He understood RCR were engaged by the joint venture to provide labour services on the construction of the project.

37    As to the events of 3 December 2015, he stated:

5.    I was rostered to commence work on the project from 6.00 am to 5.00 pm.

6.    It was about 10.00 am and I was in the main and largest crib room in the ‘Reyesville’ crib room area for our morning tea break (the crib room). There were roughly 50 people in the crib room, various employees from a number of different disciplines and sub-contractors. I was in the crib room at that time with my friend Dale Keevers (Dale).

7.    Prior to morning tea, I had no knowledge of any union official attending the project to speak with employees. I was in the crib room for morning tea only which was for 30 minutes. Normally we are advised at pre-start notice of any union officials attending the site to let us know where they would be holding the meeting at and what time.

8.    During the pre-start notices on 3 December 2015, we were not advised of any union attendance. I am a member of the Australian Manufactures & Workers Union (AMWU). I remember three occasions when the AMWU officials attended the project to meet with their members. I’ve only attended one meeting as I was working during the other visits.

9.    I’ve been told on previous occasions that officials from the Construction, Forestry, Mining and Energy Union (CFMEU) will be attending the project. As I’m not a member of the CFMEU, I don’t attend their meetings.

I 0.    I had been in the crib room for about 5 minutes sitting with Dale and having morning tea. I noticed a male person wearing an orange hi-vis shirt with CFMEU on the left breast of his shirt (the official). I had never seen him before and didn’t know his name at the time. The official was standing and talking with some of the guys.

11.    I then heard a male person who I don’t know but who I was later told was a union site delegate say to the effect, …

12.    I observed the official known as Brad stand next to the pie warmer and drink dispensers and say to the effect; …

    Official: …

13.    At this point, I noticed the official raised his voice and became unprofessional in that his tone and body language changed into an aggressive fashion.

14.    The official said to the effect; …

15.    I remember the official saying the words … just the once at the beginning and then following up with words to the effect, …

16.    Once the official started ranting and raving I just switched off. I was upset that an official in his position would talk to anyone like that. The official continued talking to everyone for about 15 minutes on this topic before opening it up to questions.

17.    I recall one question in particular, I’m not sure who asked it but I think it was a sub-contractor. He asked to the effect, … When I heard that question I paid attention and heard the official respond to the effect, …

18.    It was towards end of the meeting that I heard the official start ranting again and repeating words to the effect, …

19.    I had had enough of his language and behaviour and wanted to have a smoke so I got up and left the crib room.

38    Mr Tawhai gave direct testimony as to what the male person, referred at [11] above, said, namely:

MR BOURKE: Now, Mr Tawhai, could you please go to paragraph 11 of the affidavit on page 2?---Yes.

You see you’ve said, ‘I then heard a male person who I don’t know, but who I was later told was a union site delegate, say, to the effect’ – what was said?---The union delegate stood up and said, ‘Could I have everyone’s attention? This is Brad from the CFMEU. He would like to have a – have words with you – everyone.’

39    Mr Tawhai gave direct testimony regarding what was said by the union delegate in [12], [14] and [15] of his affidavit, namely:

And could you – you see in paragraph 12, you refer to Brad standing next to the pie warmer and that he said something. What did he say?---He said that since we had the agreements in place, everything was going well. Since – well, after the agreements were signed, 90 members quit the union.

And then you have in paragraph 14 – you refer to other things – person Brad said. What did he say?---From memory, it was, ‘This is a union site. If you don’t want to work on a – this union site, go and work on a fucking non-union site.’

And then in paragraph 15, you refer to some further things that Brad said. What did he say?--- ‘Dog fucking cunts.’ And followed up with the – the union members that quit, they will find out who they are.

40    Mr Tawhai also gave direct testimony regarding what was asked, possibly by a sub-contractor, and the response by the union delegate, in [17] and [18] of his affidavit:

And you will see in 17, you refer to someone asking a question. What was that question?---I think it was the subcontractor – asked who was the next lot of people to go – laid off.

And what did Brad say?---That RCR, Tempo and other subcontractors were the next to go and that he had official word from the Commission that RCR and Tempo were the next lot to go. If you didn’t want to work on a union site, go and work on a non-fucking union site.

41    Mr Tawhai gave further direct testimony regarding the words the union official said in [18] of his affidavit:

And then in 18, you refer to some ranting again and repeating some words. What were the words that were repeated?---’Dog fucking cunts.’

42    Mr Tawhai said that he spoke with Mr Keevers after smoko and again the following day. He gave direct testimony about these discussions to the following effect:

And can I take you to paragraph 20? You spoke with Dale Keevers?---Yes.

Is he a friend of yours?---He is, and a work colleague – well, previous work colleague.

Yes. Yes. And what did you say to him?---That I was a bit disgusted and upset that someone in Brad’s position could talk to anyone in the way he did. I thought it was very unprofessional.

43    Mr Tawhai said that in the days that followed, Mr Keevers asked him certain things and gave him a two-page document, being a complaint report, and he sat down with Mr Keevers in the crib room in the 19C area, completed the complaint report on his own and handed it back to Mr Keevers.

44    Mr Tawhai gave direct testimony as well about what was said in the exchange with Mr Keevers that led to him completing the complaint form:

And then I will take you to 21. You say that Dale Keevers asked you something, some days later. What did he say?---He asked me if I wanted to actually put in an official complaint to CB&I about what was said and the behaviour that was – well, the behaviour that took place.

Well, what did you say?---I said yes.

And did you fill out a form?---I did, yes.

45    In cross-examination, Mr Tawhai was first taken to the question of whether there was a lot of writing on the back of toilet doors in his experience on the Gorgon Project. He said:

    That there was.

    That there was writing in favour of and against the CFMEU.

    When further pressed, could not really recall whether the messages only concerned the CFMEU.

    As to whether colleagues might have been critical of other colleagues, he said there was a “lot going - banter going backwards and forwards between everyone”.

    He said this may not have had anything to do with union membership.

    He agreed that these were just things that workers were angry about.

    He agreed that there was a lot of writing on the backs of toilet doors and in the toilets.

46    On the question whether workers spoke to one another using swear words, he initially disagreed but then explained they did not use swear words “offensively” when talking to one another, but would use them in regular conversation just to enhance a sentence – and agreed it was just part of the language.

47    As to whether or not he was a member of a union, he said he was a member of the Australian Manufacturers & Workers’ Union (AMWU) but was not interested in attending a CFMEU meeting on the day in question and would have preferred to have had his smoko in peace, and was a bit annoyed to find there was a union meeting on.

48    As to the meeting at which Mr Upton spoke:

    As he recalled, Mr Upton spoke for about 15 minutes.

    He could not recall everything that Mr Upton said.

    He remembered some words, but after Mr Upton “started ranting and raving, I just switched off”.

    He could, however, remember the start of it.

    He said it was correct that he knew as of the date of the meeting that there had recently been a new enterprise agreement approved and that it had taken a long time to get approved.

    He also knew that while there were negotiations, there was a risk of protected industrial action.

    He could not recall, however, that in the end a new enterprise agreement was approved without protected industrial action.

    When asked whether it was possible that the first general topic raised in the meeting was that enterprise agreement, Mr Tawhai’s evidence was neither clear nor conclusive, but in the end he thought that it was: “I think – yes”.

    As to whether the meeting was an interactive one, he said he only heard one question from the floor about the enterprise agreement and that was concerning who was going to be laid off first.

    He agreed that was because that was his primary concern and so he really listened to the answer.

    When asked whether it was possible that when Mr Upton raised the issue of member resignation he was raising concerns that members had raised with him at an earlier meeting, he replied “Possibly. Yes.”. This was plainly an inconclusive answer.

    And when he was then immediately asked whether Mr Upton was “reporting back about those concerns”, he also answered “Yes.” But the answer in context was again quite inconclusive and Mr Tawhai seemed more to be accepting the possibility that these things were raised at the meeting.

    He said it was not possible that he misheard what Mr Upton said, to the effect that: “This is a union site. And, if you don’t want to work on a union site, go work on a non-union site”.

    When challenged that he was not really paying attention at the meeting, Mr Tawhai said that at the start he was paying attention and said that Mr Upton did not say “If you don’t want to work on a site with a union negotiated enterprise agreement, go work on a non-union site”.

    He believed it was possible that a general topic addressed was that enterprise agreements negotiated by a union provide for better wages and conditions and that “it could have been” possible that that was a topic that was addressed at the meeting.

    He rejected the proposition that some of the things he said Mr Upton said were in fact said by people from the floor.

    He rejected the proposition that Mr Upton had to raise his voice to be heard by everybody in the room. He pointed out that the crib room was smaller than the court room in which the trial was occurring.

    He also believed it was possible that Mr Upton, in speaking about issues like better wages and conditions, would get a bit passionate and that “possibly” that had happened on this occasion.

    He rejected the proposition, however, that it was possible he mistook that passion for aggression, and said he knew what the difference was between passion and aggression.

    He rejected the proposition that Mr Upton did not say “We will find out who they are” and that he misheard that.

49    As to the discussions with Mr Keevers after the meeting, when Mr Keevers asked him to make a complaint, he agreed that he spoke to Mr Keevers about it before he made the complaint.

50    He was also asked about how many union officials were at the meeting and he said he only recalled the one, and that if there had been an official from the AMWU he believes he would have recognised the official. He did not recall seeing any other union insignia in the room.

Mr Upton’s evidence

51    Mr Upton’s evidence at trial was to the following effect.

52    As to the position and duties he had at material times, in his affidavit he said:

3.    Prior to 2008 I was employed by Downer Engineering as a crane driver. I was working on the North West Shelf LNG Phase V Project in Karratha.

4.    Since early 2008 I have been employed by the Construction Forestry Mining and Energy Union (CFMEU) as an organiser.

5.    Until July 2016 it was my job to organise union business in the North West area of Western Australia on behalf of the CFMEU.

53    As to the Gorgon Project, he stated as follows:

6.    Part of my role was to organise Chevron’s Gorgon Project on Barrow Island. In 2015 there were thousands of workers on Gorgon working for multiple companies and the site was around the size of Perth’s CBD city block. At various stages of the job there were between 5 thousand and 8 thousand workers on the project.

7.    To speak to workers on the island I needed to exercise my right of entry by giving notice I was going to the island and what group of workers I wanted to speak to. Because of the logistics of getting flights to Gorgon and getting the information about meetings to workers on such a large site, the CFMEU and CKJV agreed that we would put in my right of entry notices 7 or 8 days in advance, instead of the usual 24 hours’ notice. CKJV management would send out notices to workers for pre-start meetings on the day, telling workers where I would be. Pre-start meetings are where management tells workers what they are doing for the day and deliver any messages. The CFMEU delegate would also put notices up in the crib rooms telling members about my visit. Attached and marked ‘BU1’ copies of posters titled ‘CFMEU Union Meeting’ & ‘Up and Coming Union Meetings’. They are examples of the kinds of posters the delegate would put up. Every work group (between as low as about 5 workers up to about 100) has a pre-start meeting. There was always another crib room available next door to where I was, for people who didn’t want to come to listen to me. There were hundreds of crib rooms on the project.

8.    Because my visits to the Island were limited and spread out, I relied on the union delegates to sign up members between my visits.

54    Mr Upton further said, by way of background to his visit:

9.    The companies on Barrow Island had enterprise agreements (EBAs) that expired in 2014. The CFMEU had been in discussions for replacement agreements since around the end of 2013 to beginning of 2014. Towards the end of 2014 the companies put up a proposal but the workers voted it down.

10.    The main area of disagreement about the EBA was the fly-in/fly-out roster for workers. The expired EBA’s had a 26 and 9 roster, meaning workers were rostered on site for 26 days and then rostered off for 9 days. Workers wanted to change that to a 20 and 10 roster to get more days off because they had to fly home in their time. Some people spend a couple of days travelling to get home after working the last day of their shift and then spend time travelling back to site before their first day on shift. Workers with families end up spending 2 days travelling and miss out on spending quality time with their kids and partners. When they are on shift, it can be very difficult for people to even speak to their kids on the phone because they aren’t allowed phones on site and by the time they finish working it’s close to bed time for kids living in the eastern States.

11.    The CFMEU and other unions were having negotiations directly with CKJV (CBI and Kentz Joint Venture) and there were discussions in the Fair Work Commission. Around the middle of 2015 there was a vote of CBI members to take protected industrial action.

12.    The protected industrial action was set for the middle of September. There was quite a lot of anger from workers about the EBA towards the companies. There was even disagreements between different sets of workers. For example, the day shift workers thought the night shift workers were being soft on the roster issue because they got to fly home on the morning of their last day on shift rather than having to wait until the end of the day. There was a degree of competition between day shift and night shift about whether one group was better than the other. The night shift gets paid 25% more and gets more time off between shifts. This is a real topic of tension between the night and the day shift. Right through the EBA process there was also lots of anger coming from union members towards non-members. This is not something that I personally encourage. My personal view is that aggressive behavior towards non-union members discourages them from joining the union. My personal aim is to educate people about why it’s good to be in a union. That is the easiest way for me to keep members - that way they join for life rather than job to job.

13.    There were still negotiations going on until the day before the protected industrial action was set to start. Finally an agreement was reached. The union’s view was that if we took protected industrial action, we may have ended up with a less good agreement. The unions cancelled the protected industrial action and recommended to the workers that they vote for the agreement. I was immediately instructed to visit Barrow Island to give the message to members that it was time to vote up the agreement.

14.    I thought we got the best we could and the agreement had excellent conditions compared with everywhere else in the Northwest. The roster was changed to 23 and 10 and had 5% wage increases. I was quite proud of what we had achieved. In the end I think 85% of workers voted for the EBA.

15.    After the vote for the EBA, the union was getting some feedback from members on the Gorgon Project that there were complaints about the union agreeing to the EBA without having a strike. I heard there were some people who wanted to have industrial action to try to get a better roster and some that wanted to have a blue just to punish the company.

55    As to the right of entry on 3 December 2015, he stated:

16.    The reason for going on site was part of the process of promoting the EBA to our members and explain the union’s position about cancelling the protected action and recommending the agreement, and to deal with reports of the members who were cranky we had signed the EBA before taking protected industrial action. I put in a right of entry notice for 3 December 2015 (attached and marked BU 2) using the standard CFMEU right of entry form for Gorgon. The form mentions discussions with any employee who the CFMEU is entitled to represent. This is just the standard form. My reason for the visit was to talk to union members about the agreement.

17.    At this time CBI’s work at Gorgon was about to wrap up, and an issue on site was also who was going to be the first group of workers to be demobilised. Demobilisation of workers is the process for reducing the amount of workers on the job as the work scope reduces.

18.    As usual, to make the most of the plane flight and the day on site I planned to have as many discussions with members on the day as possible. That’s why the notice mentions night shift, morning break and lunch break. Because morning and lunch breaks are staggered there was 2 morning break meetings and 2 lunch break meetings.

19.    For each of the meetings, I expected there would only be union members there. It wasn’t my job to sign up new members . That is something delegates did while I wasn’t there. When I went to the island my job was to talk to people who were already members. This time, I was there to talk about the new EBA, explain the union’s position and hose down the cranky members. Also, I didn’t think that there would be non-union members there, because management send out notices of where I’ll be so non-members can make arrangements to use the other crib huts that are available. I wouldn’t know if they are in a union or not, or if they are in a union, what one it is.

56    He said, in relation to the nightshift meeting, as follows:

20.    First up in the morning I met with the night shift crew who had waited around to speak with me after their shift that finished earlier in the morning.

21.    As planned, I spoke about the …

22.    At some point during this discussion one bloke raised his voice and bought up a …

23.    I had heard this rumour before but I didn’t think it would come up at the meeting because the feedback I was getting was there was a group of militant members who were angry the protected action didn’t go ahead. I didn’t know if there were any actual resignations from the CFMEU.

24.    Several other people were yelling lots of stuff about … . There was lots of … . There was quite a bit of anger on this topic and it went on for about 10 minutes.

25.    In the end I said     … . I just wanted to find out if there was any truth to the rumours that 90 people resigned. I don’t have authorisation to access the CFMEU’s union member records. I need to ask someone who is authorised if I want to check anything. I didn’t have a list or any names of possible members who might have resigned. Sometime after I came back from the Island I rang the office and asked if there were any mass resignations. I was told there wasn’t.

26.    Another topic I wanted to talk about was who was going to be demobilised first. I knew people were anxious about being laid off. Members had previously asked me to find out who was going to be demobed first. Some people said … . Other people said … Everyone on Gorgon wanted a way to make someone else to go before them.

27.    To move the discussion on, I started … Workers were also raising another issue about …, and then the meeting finished.

28.    Workers writing other workers names on toilet doors was very common on Gorgon and lots of other construction sites in the Northwest. It was not something that was organised or promoted or encouraged by me or the union. It was just something workers did when they got behind a closed door. I’ve seen a lot of the same kind of thing when I was working as a crane operator. I knew it was an issue because CKJV had asked me to speak to my members about it. I agreed to speak to them, but because I expected people would keep writing stuff anyway, I had suggested to CKJV management that they paint the toilet doors with chalk-paint like on some other gas plant projects, so that it could be wiped off each day. It doesn’t stop people from writing stuff, which is pretty hard to stop, but it does mean it can be cleaned off really easily each day.

57    He then gave direct testimony as to what he said, as adverted to in [21] of his affidavit, as follows:

Now, at that night-shift meeting, what was the first matter that you spoke about?---So to go to the island for the EBA and to congratulate everyone on a good EBA. It was a long EBA but good; also to say about the good wages and conditions, and also to discuss about a few people that were upset about not taking the protected action.

58    Mr Upton gave direct evidence about what one bloke said, as adverted to in [22] of his affidavit above, as follows:

If I can take you to paragraph 22. At some point during this discussion, one bloke raised his voice and brought something up. What was that?---He brought up that there was a rumour on site that 90 people had resigned out of the union and – I don’t feel at ease saying this, but he said that that there was nothing but a bunch of dog – ‘fucking cunts’, to be honest with you.

59    Mr Upton then gave direct evidence about what several people said, so far as [24] of his affidavit was concerned:

Several other people were yelling lots of stuff out. What were they yelling out?---So a few people were still yelling out, ‘You fucking dog cunts.’ And then there was a fair bit of swearing and people were saying that we should write their names on the back of the toilet doors, or the dunny doors.

60    Mr Upton gave direct evidence about what he said in response, which was left out of [25] of his affidavit:

How did you respond?---I said that there are actual rumours, said that I would check and see if there had been any mass resignations from our branch.

61    Mr Upton gave direct evidence about what other people said, as adverted to at [26] of his affidavit:

You’ve – your evidence is that there was another topic that you wanted to talk about which was demobilisation. What did people say about demobilisation?---In the night-shift conversation, it was pretty clear that ..... saying that ‘fucking dog cunts’ should be the first to go. That was one part of the meeting. And then the other part of the meeting said that RCR and Tempo should be the first to go.

62    Mr Upton then gave direct evidence about what was left out of [27] of his affidavit:

You’ve said to depose to move the discussion on ‘I started –’ what did you - - -?---So another big part of – because of what time of the year it was – it was coming up to Christmas breaks, which we’ve had a lot of problems with in the past.

So we – so we moved in the new agreement to get better wording for that. So we got better wording in that. So we were discussing about – that it would be easier for people to take Christmas break, because they weren’t permitted to before, and just end up – I take a lot of merchandise and that up to the island in a suitcase and try and get rid of that as well. So - - -

So what did you say about the merchandise?---Just that we sell a lot of – so when we go up on the island, a lot of people - - -

Sorry. I will just clarify that question?---Yes.

What did you say to the meeting about the union merchandise?---That I had brought it up to sell. So - - -

63    As to the meeting in the main crib room at 10am, he stated in his affidavit:

29.    For the 10am morning meeting there were delegates from the CFMEU, AMWU and ETU there too. CBI want the other delegates there because they like to have an industrial relations meeting with the delegates and myself from all the unions after any union right of entry. Delegates would also follow up on those issues with management after I was gone.

30.    I was the only union official there and the only one with union insignia on my clothes. Workers at Gorgon weren’t allowed to have any union insignias on their work clothes or helmets. Chevron didn’t allow officials from 2 unions to have right of entry meetings at the same time. The only exception to this was when Chevron invited the union Secretaries to come on site to talk up the vote for the EBA. I don’t know what workers attended and I don’t usually make or keep lists of workers who attend my right of entry meetings.

31.    Again, it was my intent was to explain and promote the union’s position on the EBA to current members. Before the meeting started I spoke to the delegates about … . They asked me to … . It was very common for me be asked to report what people from a previous meeting were saying so that people from all the shifts can have a say on the same issues. It doesn’t mean I agree with it.

32.    The first topic that I addressed was …

33.    Then I raised the … It was common for me to report issues raised by nightshift workers to the day shift workers. It was part of my job. Because of their rosters they didn’t have contact with each other so I was the point of contact between them.

34.    I remember that other workers at the 10am Meeting were yelling out … .

35.    At paragraph 17 and 18 of the statement of claim, they allege I made threats to non-union members. I don’t remember exactly what said, but I’m sure I didn’t say what they say I said. I agree I used some of the same words, but actually I was reporting to the 10am Meeting what was said at the nightshift meeting. I said ‘fucking dog cunts’ and that workers wanted to put the names of anyone who resigned after the EBA was signed on the toilet doors because that’s what they said at the Nightshift Meeting.

36.    I didn’t threaten anyone. I didn’t say anything in a way that meant I was telling anyone to do something or I was going to do anything to them, because my intention was just to report back from the previous meeting.

37.    I wasn’t saying anything to non-union members. I didn’t think there were any non-union members there. When I said ‘union site’ I meant a site where the union had done the EBA. I was talking to members about how the union had achieved the EBA and that non-members don’t want to go to sites where the union hasn’t done the agreement because the union gets better wages and conditions. Again, I wasn’t telling anyone to do anything.

38.    I didn’t say to anyone that they should go somewhere else or they were not welcome. Whatever I said to do with anyone that might have resigned was just reporting what had been said earlier in the morning.

39.    I didn’t say that I or anyone was wanting to use stand over tactics against non­members. An issue of the companies bringing in labour hire during the EBA negotiations was raised. Someone from the floor said … . This had also come up at the night shift meeting and previous meetings. I remember I said something about … .

40.    I didn’t say anything in an aggressive tone. I do speak passionately. The room was large and there were about 50-60 people in the room, so I had to speak up so that everyone could hear me. Several people were yelling out the same stuff like in the previous meeting. I had to speak loudly to be heard. You have to take control of the meeting.

41.    I didn’t want to force people to leave Gorgon because they weren’t a union member or force them to join the CFMEU.

42.    My intention was to promote the EBA and the Union to members and to point out that it was the union that managed to get the better wages and conditions in the EBA and to say that people who didn’t think the EBA was good enough should try working on a site where the union hadn’t negotiated the agreement and see how good the terms and conditions were there. My intention was to communicate to members that this was a great agreement as I thought that there would only be union members at the meeting, and I wanted to promote the EBA and Union to those members.

43.    The issue of … was also raised by someone on the floor. Some people were … There were RCR and Tempo workers that were members of the CFMEU. There was no way I could influence who would be demobilised first.

44.    Again, I also spoke about …at the end to wrap the meeting up. There were also more questions about … . The EBA had improved conditions so people had more of a right to take annual leave at Christmas. Then the meeting finished.

45.    I do swear a lot and it’s common for workers to swear in the construction industry. In my experience, workers and bosses on Gorgon swore a lot when they talked to me and each other, including at right of entry meetings. I hear swearing all time and it is a common way for people to relate to each other in a non-aggressive way on construction sites.

64    As to what Mr Upton spoke to the delegates about and the other things adverted to at [31] of his affidavit, he gave direct testimony as follows:

Before that meeting started, you spoke to delegates about something. What was that?---Yes. I spoke to them about the night-shift, with the rumours that was put up about 90 people quitting the union and that the boys were very angry, and said about ‘you fucking dog cunts’ and writing their names on the back of toilet doors and that.

Just could you clarify what you said. When you said the boys were very angry, which boys were you talking about?---Well, the members, as in, like, because of the – not getting the protected again. So they were annoyed about that and – and it was a day shift. Is that – is that the question you’re asking?

Let me ask you another question?---All right.

When you – before the meeting started, you spoke to the delegates?---Yes.

And could you just state what the delegates said – what you spoke to the delegates about?---Yes. Okay. So I spoke to the delegates about the previous meeting, which was the night shift, and I always get asked by the day shift to give a report back of what the night shift were doing. So I gave them a report back on some of the things that were said.

And in particular, what things?---Well, as I said, it was about the rumour of people resigning – 90 people resigning out of the union.

And what did they ask you to do?---If I could report that back to the day-shift meeting.

65    As to the first topic that he addressed, adverted to at [32] of his affidavit, he gave the following direct evidence:

What was the first topic that you addressed at the 10 am meeting?---Was about the EBA, the new agreement, congratulating everyone on the day shift of a good job and also about the good wages and conditions and the reason, you know, behind not taking the protected action and asking them to vote up the agreement because there was a few people out there were a little bit angry about not taking the protected again.

66    As to the question he raised and adverted to at [33], he gave direct evidence that:

Now, you’ve given evidence that the first topic that you addressed was the enterprise agreement?---That’s correct.

After you had addressed the enterprise agreement, what matter did you raise at the - - -?---Sorry. Can you just repeat that again.

After you had addressed the enterprise agreement – and you’ve given evidence that you addressed – that you congratulated people and that you spoke about the good wages and conditions and that there were some people who were upset that protected industrial action hadn’t been taken?---Yes. Yes.

Now, after you had spoken to the meeting about those matters, what matter did you raise next?---Would have been the demobilisations.

If you just take a moment, Mr Upton?---Yes.

Take a moment to read paragraph 33?---Yes.

So your evidence is that you spoke to the day-shift meeting about the EBA?---Yes.

And did you then raise another matter with them?---About the people resigning out of the union and – and the comments that were made.

Could you be a bit more precise about what you raised with them?---Yes. So it was raised that people in the night shift were quite upset with people resigning and called them ‘fucking dog cunts’ and – and swore a bit about that.

67    As to what he remembers other workers yelling out, as adverted to at [34] of his affidavit, Mr Upton gave direct evidence as follows:

What were other people saying?---There was people in the day-shift meeting that were saying very similar things: that they were fucking dog cunts as well, to be honest with you, and that we should stick the name up behind the toilet doors.

68    As to what someone from the floor said, adverted to at [39], Mr Upton gave the following direct evidence:

Now, your evidence is that an issue of company – your evidence is – well, it has been said that you spoke about standover tactics. What did you say?---It was brought up from the floor. The floor actually said – one of the people on the floor said about the company bringing the two labour-hire companies in, Tempo and RCR, that that was a form of standover tactics, in their – in their eyes, so that when they went on protected action, that their labour would be replaced by them and it’s a standover tactic, and I just replied with, ‘If we did standover tactics, we would end up in court.’

69    As to the issue raised and what some people said, as adverted to at [43], Mr Upton gave the following direct evidence:

Now, your evidence is that you had spoken to the members about the EBA and about the rumour and about a reference – there was a reference to standover tactics?---Yes.

Was there another issue that was raised at that meeting?---Demobilisation.

And what did people have to say about that?---Obviously, there was people that were a bit angry with the demobs and that and they brought up, in different splits again, about demobilisation of – a couple of people said, “The dog cunts can fuck off in the first lot of demobs or RCR and Tempo.” I followed up with – because the questions had been asked previously at meetings prior to that day, and we have IR meetings afterwards with all the delegates and the union official that’s there, and the IR manager at that stage said to us – the question was asked back to that meeting and it was clear to us that they said to us that Tempo and RCR will be the first to be demob, so I passed that on in that exact fashion.

So you passed that onto - - -?---The day shift.

70    As to what Mr Upton said, as adverted to at [44], and the further questions he said were asked, referred to there, he gave the following direct evidence:

Now, were any other matters raised at that meeting?---Yes. Again, it was the Christmas break, because we were leading into Christmas, and the problems that we had had with taking the Christmastime off was really important to everyone that worked out there. So we – we brought that up, telling them that in the new EBA, that we had put some new wording in there that made it a bit easier for people to try and get off at Christmastime, and also get the merchandise. So - - -

And also?---With the merchandise. That – one of my duties is to get our merchandise out there and sell it to the rank and file.

So just to clarify, you – what did you speak about finally?---So the merchandise – the CFMEU merchandise.

71    In cross-examination by senior counsel for the Commissioner, Mr Upton:

    Agreed that in the lead up to the meetings on 3 December 2015 he took the view that the Gorgon Project was a union site, based on a union agreement.

    Rejected the proposition that he was not happy that there were workers on that site who were not union members.

    Accepted, however, that prior to 3 December 2015 there had been EBA negotiations on the site and said that he had been involved in them to a “very small amount” but agreed that the CFMEU was involved.

    Rejected that he was involved in getting workers to join the CFMEU, but delegates of the CFMEU were.

    Said it was incorrect that he knew that one of the sub-contractors, Tempo, had workers who were non-union.

    Also said he did not actually know who was a union member and so rejected the proposition that RCR had mostly non-union workers.

    Rejected the proposition that he was unhappy in the lead up to the 3 December meeting that there were so many workers on site that were non-union.

    Agreed that prior to 3 December, there had been recently signed an EBA.

    Said he did not know that the day after the signing of the EBA 90 of CFMEU’s members had resigned from the union.

    Agreed, however, that it would be a “significant thing” if 90 members had resigned after an EBA was signed.

    Rejected the assertion that he had heard of the rumour of members resigning before 3 December.

    Agreed that if he had heard of the rumour prior to 3 December, given the significance of the suggestion of 90 members resigning, he would investigate that.

    Denied that, as at 3 December, he was clearly of the view that 90 members had resigned and expressly denied “that was the truth of the situation”.

    Also denied that, as at 3 December, he was fuming that there were non-union people enjoying the conditions on the site.

    Denied that he took the view that non-union workers were free-riding on the conditions that had been secured by the CFMEU.

    Denied that he was of the view as at 3 December that if one were a non-union member – a non-union worker – he or she either had to join the union or get off the site.

    Denied that he took the view that non-union workers on the site were “fucking dog cunts”.

    Agreed that prior to 3 December he had heard the expression “fucking dog cunts” before. He said he had heard it in both a context of people referring to non-union workers but also on a social basis.

    Said he had, prior to 3 December, used that expression himself to non-union workers, but also on a social basis.

    Said he had, prior to 3 December, used that expression himself, but denied he had used it with reference to non-union workers.

    Again expressly rejected the assertion that his view as at 3 December was that non-union workers on a union site were “fucking dog cunts”.

    Expressly denied the proposition that when he organised the right of entry to go on to the site on 3 December, his purpose “was to deal with the situation of non-union workers being on what you view to be a union site”. He rejected that that was why he organised the right of entry.

    Also denied that he had the full approval of people higher up in the CFMEU to exercise the right of entry for that purpose. He said that was “untrue”.

    Agreed that there were some 50 to 60 people at the meeting.

    Knew there were workers from Tempo and RCR at the meeting, and he knew there were labour hire working for labour hire groups and that one of the reasons they were there was in the event that any protected industrial action should take place.

    Rejected the proposition, however, that part of the view of why Tempo and RCR would cover jobs of people who were striking was that that they were substantially non-union subcontractors.

    Again, denied that as at 3 December he knew who the people who had resigned were.

    Also said it was incorrect to suggest that, normally, if there was to be a union meeting at the Gorgon Project, they were not held in crib huts, but in other specified areas.

    Said it was correct that workers were usually told at the pre-start meeting that there would be a scheduled union meeting, but said he did not know that that did not occur on this occasion.

    Said it was “very incorrect” to suggest that he organised the meeting to be in the crib huts to maximise the chance of unsuspecting non-union workers attending the meeting.

    Was taken to the notices of meetings usually issued by union delegates that he had produced as Annexure BJU1 to his affidavit, which did not relate to the 3 December meeting, but denied that he was unable to produce any notices of the 3 December meeting issued by delegates because there were not any.

    Denied that he knew there were going to be a lot of non-union workers at the 10am meeting on 3 December.

    Confirmed what he said in his affidavit, that he did not like to be aggressive towards non-union workers and he tried to educate them.

    Again denied that his attitude was that this was a union site and non-union workers were taking the benefit of those conditions.

    As to what occurred at the 7am night shift meeting, he denied that it was him who had told the meeting that 90 “fucking dog cunts” had resigned, and that what he was trying to do in his evidence was distance himself from what he did that day by suggesting that he was merely repeating what other people had told him at the earlier meeting.

    Was cross-examined in particular about what he had said at [23] of his affidavit and having “heard this rumour before”, and denied that the rumour he was talking about was that 90 union members had resigned after the EBA had been entered into. He said that the rumour he was talking about was that people were upset with the union not taking the protected action.

    Denied that, in fact, he had just made up the whole idea of a rumour and knew that 90 people had resigned.

    Said it was correct that he was suggesting that he actually used the word “rumour” at the 10am meeting and denied that he never did.

    As to the persons “up the front” at the meeting, he said there were delegates from the CFMEU, two or three, and delegates from the AMWU, but denied that there was a union official wearing an insignia. He said there were delegates from the ETU as well. He denied that there was an official from the ETU with an insignia.

    When asked whether he was planning to call any of the CFMEU delegates who were at the meeting, said it was not his job to do that and denied that he was not calling them because he knew he would be exposed as a liar.

    Agreed that someone introduced him at the meeting by saying words such as “Can I have everyone’s attention … this is Brad … he’s from the CFMEU … he would like to have a word with everyone”.

    Denied, however, that at the outset of the meeting he spoke about the “fucking 90 dog cunts”.

    However, agreed that he did in the meeting use the words “fucking 90 dog cunts” but did not agree he did so at the outset.

    Also denied that he said – whenever it was actually said – that “the fucking 90 dog cunts that resigned from the union the day after we fucking signed the EBA”.

    Implicitly agreed, however, that he did deal with the topic of the “fucking 90 dog cunts” by responding to the question of whether he did by stating “Reporting back”.

    Said he made the point in the context of saying it had occurred the day after the EBA had been signed, and agreed it was possible that when he spoke about the EBA that had been signed he referred to “the fucking dog signed EBA”.

    Said it was incorrect, however, that when talking about the “fucking 90 dog cunts” he made the point, “after we got the conditions we got now”.

    Agreed, however, that he spoke about conditions but did not agree that he spoke about the fact that the CFMEU had secured conditions for the site and the resignations had occurred after that.

    Said it was incorrect that he then said “this is a fucking union site”.

    Agreed that he did use the expression “union site” during the meeting and denied that he had used it numerous times, roughly twice maybe three times.

    Said he could not be too sure on whether every time he said “union site” he in fact said “fucking union site” and agreed it was possible that he did so.

    Said it was incorrect, however, that in the context of talking about the “fucking union site”, he said, “if you don’t fucking like it, fuck off somewhere else”.

    Accepted it was part of the conversation that he made the point at the meeting if people do not like a union site they should go elsewhere, and agreed throughout the meeting that he regularly used the word “fucking”.

    Said it was incorrect, even though it appeared he had already agreed to it, that he spoke about that people who did not want to be at a union site should go elsewhere. But then, when the matter was clarified, said it was part of the conversation at the 10am meeting that if people did not like a union site, they should go elsewhere.

    Said it was incorrect that when he talked about people going elsewhere, he was talking about people who were not union members. He said it was incorrect that when he spoke about people going elsewhere, he put it in terms of “fuck off”.

    Said, however, he had used the expression “fuck off” and when asked if he ever used that expression at a meeting, agreed and supposed that he would have. He said “not in my recollection” but that it was possible that he used it at this meeting.

    Said he did not make any notes of what he said at the meeting, he agreed it was quite possible – “I could have” used the expression “fuck off”.

    Denied, however, that telling someone to “fuck off” is saying they are not welcome. He agreed it was “part of a discussion” that at the same time there was talk about people going elsewhere and about being a union site, he also spoke at the meeting about the fact that it was the CFMEU that had got the conditions for the site. He agreed it was quite possible that he said “we got you these conditions”.

    Also said it was incorrect that, as Mr Keevers had said, he had stated “We know who you are” – that is, who the 90 people were that had resigned.

    Said if people did resign from the CFMEU he was not able to work out who they were, but said that the CFMEU is able to work out who resigns from the union.

    Agreed that he could ask for certain information concerning resignations but rejected the proposition that he could check records or other union records to see whether someone was a union member or not.

    Said he would not say that saying something like “We know who you are” would not be said unless someone was intending to make a threat. At that point he was taken to [37] of his affidavit and asked whether he used the expressions “Non-members” at the meeting – in contradistinction to “fucking dog cunts” – and said he would have.

    Even though his affidavit did not include swear words, said that he could not say that he “never swore through the whole thing, no”. He said he could have sworn in relation to things stated at [37] but rejected that he would have done so aggressively.

    Agreed that one of the selling points for a union is that the union can get workers better wages and conditions and that is a reason for joining. He said it was incorrect, however, that he made the point and was addressing those comments to non-union members who he knew were in the audience.

    Said it was incorrect that what he said at [37] was an attempt to completely sanitise what were aggressive statements made to non-union members at the meeting.

    Denied that he was aggressive, had a threatening tone or an aggressive body language, or that what he had to say came over as a “rant or a spray”.

    Said he never said that “we’re going to put your names on the back of toilet doors” but agreed that when he was “reporting back”, he spoke about toilet doors and names being put on the back of them.

    Agreed that it was a form of abuse on the site to have someone’s name scrawled on the back of a toilet door – noting that his name had been put there “quite a bit”.

    Agreed it was effectively telling others not to treat those people with respect.

    Considered it was a hypothetical question whether there could be a risk that union workers who take a poor view of non-union workers may treat those people more poorly.

    Also considered it hypothetical that there was a risk a person would get exposed as a non-union worker and would be treated by others onsite as a “fucking dog cunt” because he did not work there.

    Said it was incorrect his account of the nightshift meeting given to the 10am meeting, was a complete whitewash of what had occurred.

    As to what he said at [28] of his affidavit, concerning his advice to management to change the finish on the toilet doors to deal with graffiti problems, that seemed inconsistent with him now saying that he was reporting back at the 10am meeting that people were talking about putting people’s names on the backs of toilet doors; said it was incorrect that that would have simply encouraged the practice.

    Was not sure when that management discussion took place.

    Said he did not think it was appropriate to call a non-union worker a “fucking dog cunt”.

    Said it was incorrect that by repeating what had been said by others at the earlier meeting, he was endorsing the expression.

    Was pressed as to why he used, on a number of occasions, the expression “fucking dog cunts”, and said he was “just reporting back”.

    Denied that he was referring to non-union workers as “fucking dog cunts” more than once. He said he only used the expression “fucking dog cunts” a “couple of times”. When taken to his defence in the proceeding that had been filed the day before his testimony, he considered the pleading that admitted he used the expression “a number of times” was the same as “a couple of times”.

    Denied that during the meeting he used the expression “standover tactics” and said that it came from the floor. He said it was incorrect that this was another example of him trying to distance himself from what he actually said by attributing it to somebody else.

    As to the use of the expression “standover tactics”, said: “It was for feedback to say that that’s what the companies were doing and that we would end up in court if we ever said the words ‘standover tactics’”; said he used the expression in that context only and denied the question of standover tactics was discussed at the earlier 7am meeting; said it only came up from the floor at the 10am meeting; and denied that the question of standover tactics was never raised from the floor of the 10am meeting.

    Agreed that the expression “standover tactics” involved talking about threats of violence.

    Was taken to [39] of his affidavit and the reference to “this had also come up at the nightshift meeting”, being a reference to the mention of standover tactics.

    When asked whether this actually came up – the question of standover tactics, at the 7am meeting, answered “yes”; but denied that he made it part of his report back. He agreed that he could have forgotten to do that.

    When challenged that he had made the whole thing up, that someone had raised the question of standover tactics from the floor, said that it was incorrect and denied that he was completely guessing now.

    Following the canvassing of propositions previously put, denied that he did not have to raise his voice at the meeting to be heard and insisted that there were people yelling out while he was speaking, and said it was incorrect that only one question was asked from the floor.

72    Senior counsel for the Commissioner finally suggested to Mr Upton that he had made up the story that after 3 December he checked whether people had resigned. Mr Upton said that was incorrect. He also said it was incorrect to assert that his purpose in holding the meeting was not only as he suggested in [42] of his affidavit – to promote the enterprise bargaining agreement that had been achieved, and to communicate to workers what a great deal it was – but also (by inference in context of the questions asked) to intimidate non-union members or other union members who had resigned from the union following the making of the agreement to remain in or return to the union.

73    In re-examination:

    Mr Upton explained why it would be significant if he learnt that 90 people had resigned following the signing of the agreement.

    Said he had heard the expression “fucking dog cunts” used in relation to non-union people in other non-union contexts as well.

    Explained why Tempo and RCR employees would be the first to go.

    As to where right of entry meetings were usually held, said they were held in different locations because it was such a big area, but were commonly held in crib rooms.

    As to why he was unable to produce notices for the right of entry meeting on 3 December, explained that he had looked on his computer for such notices but explained that they were produced by delegates on site and not him.

    As to the rumour that was brought up at the nightshift meeting, he said it was about the protected action not going ahead. He was reminded (in what was in truth a leading moment by his senior counsel) that it was a rumour about people resigning from the union. He said that people were not happy that the union did not take the protected action threatened at earlier times. He said that these were the more militant members.

Findings on disputed evidence

74    The factual questions, upon which the contravention allegations are ultimately to be decided, concern what Mr Upton said, and how he conducted himself, at the 10am meeting in the crib room on the day in question.

75    As may be seen from the above account of the evidence, Mr Upton was at pains to paint a quite different picture than that painted by Mr Keevers and Mr Tawhai as to what happened. While he accepted that he swore during the course of his address to the meeting, he materially suggested that he was only “reporting back” to that meeting about what had been said at an earlier night shift meeting that he had attended. He said the language he used was that used by persons at that earlier meeting, not his. He denied he spoke forcefully. He denied he made any threats.

76    As to what Mr Upton said happened at the night shift meeting, this is set out at [55] above.

77    As to a degree of anger coming from some of his union’s members, he said he understood that was because the union had not supported strike action at an earlier time during the EBA negotiations.

78    He said he was not aware before he arrived at the nightshift meeting of a rumour of some 90 members of the CFMEU resigning in the wake of the EBA being concluded.

79    He conveyed the clear impression that it was only at the night shift meeting that he heard about that rumour and that it was at that meeting that a person had made a reference to a “bunch of dog-fucking cunts”.

80    Mr Upton therefore was at pains to create the impression that, at the later, 10am crib room meeting, he merely repeated what he had been told or was said by others at the earlier meeting and did so in a measured, non-inflammatory way.

81    He was also at pains to deny the proposition put to him in cross-examination that he was well aware that there would be non-union members attending the crib room meeting and that his address there was calculated to send a message to them and to any other former members who had recently resigned after the EBA was struck, that they were on a union site and should stay in the union.

82    In the course of the examination and cross-examination, Mr Keevers, Mr Tawhai and Mr Upton, some questions – principally designed to go to the credibility of the witnesses – were asked concerning how many “union officials” spoke and how many people in the contingent of persons at the front of the room, including Mr Upton, were wearing union insignia.

83    I should say at the outset, that I do not place any great store on any inconsistencies between Mr Keevers evidence about those matters and Mr Tawhai’s evidence, or for that matter, any inconsistencies between their evidence and that of Mr Upton.

84    What appears plainly to have been the position is that there were a number of persons generally representing a number of unions, including the CFMEU, at the front of the room. Most probably Mr Upton was the only “union official”, being an organiser of the CFMEU, among them. Most probably the others were “delegates” and so not “union officials” as such. An ordinary bystander might have drawn different conclusions and probably that is what Mr Keevers did. But any misapprehensions in that regard made by Mr Keevers or by Mr Tawhai, is, in my view, not material to the fact-finding task I am now engaged in. I do not consider that any misapprehension on these matters is pertinent to the primary factual dispute.

85    What there is no doubt about is that one person at the front of the meeting called the meeting to attention and said that Brad – Mr Upton – from the CFMEU was to speak. That certainly begins to give the flavour of the meeting. Mr Upton plainly was a key speaker at this meeting.

86    The crib room was of a reasonable size. Mr Keevers and Mr Tawhai intimated that it was about the same size as court room number 1 in the Perth Federal Court where the hearing took place, which I accept. While Mr Upton gave evidence to suggest that there was quite some interaction from the floor, while he was speaking, with many people asking questions or making comments, I do not find that that was the case. Relying on the evidence of Mr Keevers and Mr Tawhai, in that regard, I consider it was most probably the case that the people at the meeting were relatively quiet and that Mr Upton could be heard easily enough without having to strain his voice. He was not needing to be heard over anything approaching a din. I accept, however, there may have been some voices from the floor, but not so as to make it difficult for people such as Mr Keevers to hear easily what Mr Upton had to say.

87    I further do not accept that Mr Upton was merely “reporting back” to this meeting on what he had, apparently unexpectedly, learned at the earlier night shift meeting. I accept the gist of what Mr Keevers and Mr Tawhai said in their evidence, although as explained below, not as to the “standover tactics” statement recalled by Mr Keevers. While they did not purport to remember everything that was said at the meeting, they both insisted that the critical parts of their testimony, as to what was the essence of what was said by Mr Upton, is most probably true. Mr Upton’s evidence was, in my view, an attempt to minimise the import of their evidence, especially Mr Keevers’.

88    If I were of the view that Mr Keevers and Mr Tawhai really had a poor recollection of what had happened and what had been said and were merely speculating, after the event, as to what Mr Upton said at the crib room meeting, I would of course find differently. But, each of them gave their evidence in a calm, measured way and was not significantly moved from the evidence they gave in their primary affidavit evidence and oral evidence in examination in chief, when cross-examined.

89    The fact that at material times Mr Keevers was not a union member does not, in my opinion, in the circumstances of this case, suggest that he had any axe to grind or bias designed to implicate Mr Upton in some contravention of the FW Act in any way. I accept he was genuinely taken aback by how Mr Upton presented himself at the meeting and at what he had to say. I will have more to say on that topic below.

90    Mr Tawhai had in fact been a member of a union and any objections to the substance or weight to be accorded to his evidence on that count falls away.

91    But the real question, in the case of each man, is whether the evidence they gave, regardless of their union member status, is to be accepted by the Court. I accept the substance of what each of Mr Keevers and Mr Tawhai said in their evidence, as set out above, save for the “standover tactics” allegation.

92    To the extent that their evidence is not consistent with that given by Mr Upton, which plainly in many respects it was not, I am not inclined to rely on Mr Upton’s evidence. First, the manner in which Mr Upton gave his evidence led me to consider that he was very much at pains to minimise the effect of what he actually said at the meeting. His approach to giving evidence was to “confess and avoid” to a large extent. Thus, he agreed that he had spoken the alleged offending language, was aware of such language, from other occasions, even socially, suggesting that he did not use it repeatedly, or at least only spoke it in the context of a report back as to what others had said at the earlier meeting. Secondly, as I have said, Mr Upton sought to paint the meeting as an interactive one, with questions from the floor. Based on Mr Keevers and Mr Tawhai’s evidence, I do not accept that the meeting was anything of the sort. Thirdly, I accept that the tone of his language, as Mr Keevers said, was not at all diplomatic. I find he did speak in what might be called an aggressive manner, not consistent with a mere “report back”. Fourthly, I have little doubt, and find, that when Mr Upton addressed the meeting he used more than the two or three times he suggested the strong language alleged – “fucking dog cunts” – and that the whole tone of his address indicated his strong displeasure with the understanding that a number – as many as 90 – members of the CFMEU had resigned from the union in the wake of the union achieving the EBA. I accept his use of the language made it seem to be his own, not merely what others thought and had said. Fifthly, I accept Mr Keevers’ and Mr Tawhai’s accounts of Mr Upton’s performance as a “rant” or “spray”. This helps to paint the true character of Mr Upton’s address to the meeting.

93    I am, however, unable to decide on the evidence whether, as the Commissioner submits, Mr Upton was well aware of the number of resignations from the union before he went to Barrow Island for the meeting. In those circumstances that proposition or fact is not proved.

94    Based on the evidence of Mr Keevers and Mr Tawhai, I accept that at the main crib room meeting there were approximately 50 – 60 employees of CBI, Kents, Tempo and RCR present. I consider and find Mr Upton was well aware that non-union workers likely would be present when he spoke at the meeting, given the nature of the crib room, its size and its usual usage by many employees.

95    Accordingly, I also find that Mr Upton stood in the main crib room with a group of about nine individuals, who were introduced by name and role.

96    I find that there were employees who were not members of an industrial association, including Mr Keevers.

97    I find that Mr Upton was introduced as “Brad … from the CFMEU”, and that it was also said that he would like to have a word with everyone.

98    I find that Mr Upton, when he addressed the employees present, did so for about 10 minutes, during which he said the words, or words to the substance, of that pleaded and set out in the second last bullet point of [7] above.

99    I also accept the evidence of Mr Keevers, in particular, that Mr Upton said words to the effect that if persons did not like the site being a “union site” they could “fuck off somewhere else”.

100    I also accept that he said words to the effect that he knew who the persons were who had resigned from the union the day after the EBA was signed and that “we’re going to put your names on the back of the toilet doors”.

101    I do not find, however, that Mr Upton said words to the effect that “we’re going to do standover tactics next year to let everyone know who you fucking dog cunts are”. I am not satisfied on the balance of probabilities that “standover tactics” was used, at least in the context suggested by Mr Keevers’ testimony. Mr Keevers’ evidence in this regard was very short. “Standover tactics” and names on toilet door were mentioned effectively in the same breath. Mr Keevers was not able to say his recollection was complete. Mr Tawhai did not give any such “standover tactics” evidence. I am left quite uncertain that Mr Upton should be found to have spoken those two words. I take into account as well, his denial that he used them. He says the words came from the floor and were in a different context, namely the employers engaging in standover tactics.

102    I accept, however, the evidence of Mr Keevers, supported by Mr Tawhai’s, that Mr Upton said words to the effect that, “if you’re not in the union, you can fuck off somewhere else. This is a fucking union site, we have other union sites starting up next year and if you’re not in the union, you can fuck off too, you’re not welcome”.

103    In my view, the response of Mr Keevers, in particular, in making a complaint to management about the conduct of the meeting and what was said by Mr Upton, and the completing of a complaint form quite soon after the meeting, tends to corroborate and support the bona fides of Mr Keevers and the evidence he gave.

104    The relatively amazing thing about these proceedings is that there were some 50 or 60 persons in attendance at the crib room meeting. However, only three of them – Mr Keevers, Mr Tawhai and Mr Upton – finished up giving evidence to the Court about what was actually said and happened at the meeting. No one from the night shift meeting gave any evidence. The Court only heard from Mr Upton as to what happened at that earlier meeting. (that is explicable in party by the fact Mr Upton had earlier invoked his penalty privilege and not substantively pleaded to the claims made against him.)

105    This proceeding is not, of course, like a public inquiry or a Royal Commission where an executive body may, if it has authority, subpoena a range of witnesses to explain what happened. The Court is left to determine what might be described as the “legal reality” of what happened based on the testimony of the witnesses called by the parties to give evidence (under the rules of the Court and evidence). It is of course for the Commissioner in proceedings of this nature to call appropriate evidence to prove the allegations made. The respondents are not obliged to call any witnesses. If the Commissioner proves his case on the balance of probabilities then contraventions may be proved. The allegations here are significant and the Court should not lightly find that conduct occurred which constitutes contraventions, given that penalties may apply. In this case, a penalty privilege was initially taken by Mr Upton. However, he chose to go into evidence and give his side of the story at the close of the Commissioner’s case. In the event, I have not found him to be an extremely convincing witness as to the nature and circumstances of the critical meeting, the role he played in it, and how he conducted himself during the meeting and what he said at the meeting.

106    I find the conduct pleaded by the Commissioner to be made out, save for the alleged use of the words “standover tactics” as by Mr Keevers.

107    I will deal below with the question of whether or not Mr Keevers, in particular, was intimidated or the like by the conduct in question.

Did Mr Upton contravene s 346(a)?

108    Section 346(a) of the FW Act relevantly provides:

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

The elements of a contravention of s 346(a) are, therefore that (1) a person must not take adverse action against another person, (2) because the other person is or is not, or was or was not, an officer or member of an industrial association.

109    Section 342(1) of the FW Act provides that “adverse action” is taken by an officer of an industrial association if the officer of the industrial association (relevantly, in this case, Mr Upton) takes action that has the effect directly, or indirectly, of prejudicing the person in the person’s employment (see Item 7(b) of s 342(1) of the FW Act).

110    Further, by s 342(2) of the FW Act, “adverse action” includes threatening to take such action.

111    The Commissioner alleges in [21] of the SOC that the statements made by Mr Upton, as referred to in [17] and [18] of the SOC, constituted threats to take adverse action against the non-union employees because they were not members of an industrial association, if they did not leave the Gorgon Project, as the unions involved in the Gorgon Project knew who these persons were and would thereafter engage in the following conduct:

(1)    Put their names on the back of toilet doors at the Gorgon Project.

(2)    Subject such persons to standover tactics on the Gorgon Project.

(3)    Workers on the Gorgon Project would be told “who you [the non-union employees] fucking dog cunts are”, the implication being that such non-union employees will thereafter be the subject of alienation, abuse and other forms of adverse behaviour on the Gorgon Project.

112    Further, by [22] of the SOC, the Commissioner alleges that the conduct referred to in [21] of the SOC constituted threats by Mr Upton, directed to the non-union employees, to take action that would have the effect, directly, or indirectly, of prejudicing those persons in their employment for the purposes of item 7(b) of s 342(1) and s 342(2) of the FW Act.

113    The Commissioner notes that the meaning of ‘‘prejudicing ... in the person’s employment”, for the purposes of item 7(b) of s 342(1) of the FW Act, was the subject of consideration by the Full Court in Maritime Union of Australia v Fair Work Ombudsman [2016] FCAFC 102 at [11]-[24] (Maritime Union v FWO).

114    It is clear, the Commissioner submits, that the impact of the threatened action was intended to cause fear, emotional harm and distress to the non-union employees (Maritime Union v FWO at [19]-[20]) and the evidence given by Mr Keevers and Mr Tawhai demonstrates that this intent was achieved (Maritime Union v FWO at [24]).

115    Further, the Commissioner submits, the unlawful statements were made at the meeting, being a time during which the employees present were at work, in the course of their employment. The action was clearly not intended to have a neutral, or nil effect, on the non-union employees who were present at the meeting. In the circumstances, it would be artificial to suggest that the prejudice was not in the employment of each of non-union employees (Maritime Union v FWO at [21]).

116    By inference, the Commissioner submits, the specific terms of the unlawful statements imply the presence of non-union members at the meeting. It follows that the adverse action complained of was threatened because the non-union employees were not members of an industrial association.

117    The Commissioner submits that by reason of these matters, Mr Upton threatened to take adverse action against each of the non-union employees, including Mr Keevers, because they were not a member of an industrial association, contrary to s 346(a) of the FW Act.

118    I should note here that s 361(1) of the FW Act potentially applies to assist the Commissioner in providing the case here. It provides:

361 Reason for action to be presumed unless proved otherwise

(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.

119    The Commissioner accepts, however, that, recently, single judges of the Court have made findings that s 361 does not extend to a “threat” to take action – as is alleged here. See, for example, Australian Building and Construction Commissioner v Parker [2017] FCA 564 at [105] (Flick J); Director of Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union (The Red & Blue Case) (2015) 254 IR 200 at 231 (Jessup J); [2015] FCA 1125. The Commissioner contends that those conclusions are incorrect and should not be followed, although the Commissioner recognises that this Court will follow those decisions unless it considers them plainly wrong. As I do not consider them plainly wrong, I proceed on the basis that s 361 has no operation to these alleged contraventions.

120    In that event, the Commissioner submits the Court can readily infer that Mr Upton had the requisite intent because there is direct evidence of:

    the context in which the statements alleged to be unlawful were made;

    the circumstances in which they were made; and

    the terms in which they were made.

121    Mr Upton notes that the Commissioner alleges that he contravened s 346(a) of the FW Act by taking adverse action against employees who were present in the crib room at the time of the alleged conduct who were not members of an industrial association (the non-union employees).

122    In relation to this alleged contravention, Mr Upton submits that the Court must be satisfied that:

(1)    The conduct alleged at [17]-[18] of the SOC occurred.

(2)    That conduct constitutes “adverse action” as defined in s 342 of the FW Act, relevantly here:

(a)    a threat against the non-union employees;

(b)    that had the effect, directly or indirectly, of prejudicing the non-union employees in their employment, the prejudice being that they were caused to feel fear, emotional harm and distress;

(c)    which effect was “real and substantial”.

(3)    The alleged proscribed reason for that conduct is proved and within one or more of the relevant categories in s 346 and s 347 of the FW Act.

123    Even assuming the conduct alleged in [17] and [18] is established, as I have relevantly found it is, save as to the “standover tactic” words, Mr Upton submits that the conduct could not constitute a threat against the non-union employees. Further, he submits, the Commissioner’s evidence does not establish that the non-union employees were prejudiced, in a real and substantial way, by reason of the conduct.

124    As noted above, I find that the conduct alleged at [17] to [18] of the SOC occurred, save that the “standover tactics” words were used in the manner or context alleged.

125    In my view, that conduct constitutes “adverse action” as defined in s 342 because it was relevantly a threat against a non-union employee, such as Mr Keevers, who was present at the meeting.

126    I have little doubt that the threat had the effect, directly or indirectly, of prejudicing non-union employees in their employment. Mr Keevers’ evidence was that he felt intimidated. Despite the fact that he put on an affidavit late in the piece specifically referring to the question of intimidation, I accept his evidence that when the unlawful words were spoken, as I have found they were, they relevantly caused Mr Keevers to feel emotional harm or distress. He complained about this conduct soon afterwards to management.

127    In my view that effect was real and substantial and, indeed, reflected in the fact that Mr Keevers made a report to management about the occasion soon afterwards.

128    Whilst it might be said that on some occasions bad language, including what might be described as unnecessarily bad language – as in this case – might be given some tolerance in a workplace, the relevant threats here, including putting the names of the non-unionised workers on the backs of toilet doors, was a plainly intimidating statement and I accept that Mr Keevers felt that it was.

129    I find, therefore, that Mr Upton contravened s 346(a) of the FW Act.

Did Mr Upton contravene s 348?    

130    Section 348 of the FW Act provides:

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

131    Action is prohibited by s 348 if the action is taken or engaged in (or the threat is made) with a substantial and operative intent to coerce the other person to engage in industrial activity. See Hanley v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (2000) 100 FCR 530 at [45]; [2000] FCA 1188; John Holland Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (2009) 174 FCR 526 at [42]; [2009] FCA 235.

132    The elements of a contravention of s 348, by reason of the s 347(a) of the FW Act definition of “engages in industrial activity”, are therefore 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 ;

    to engage in industrial activity consisting of the person becoming, or not becoming, an officer or member of an industrial association.

133    The Commissioner pleads at [24] of the SOC that the pleaded unlawful statements also constituted threats to take action against the non-union employees, namely:

(1)    to put their names on the backs of toilet doors at the Gorgon Project;

(2)    to subject such persons to standover tactics on the Gorgon Project the following year; and

(3)    to tell workers on the Gorgon Project “who you [the non-union employees] fucking dog cunts are”, the implication being that such employees would thereafter be the subject of alienation, abuse and other forms of adverse behaviour on the Gorgon Project –

with the intent to coerce the non-union employees to become members of an industrial association.

134    The meaning of coercion in this context is well settled on the existing authorities. It requires satisfaction of two elements: negation of choice, and the use of unlawful or illegitimate or unconscionable means. See Esso Australia Pty Ltd v Australian Workers’ Union (2016) 258 IR 396; [2016] FCAFC 72 at [174] (Buchanan J), and the authorities cited therein. The requisite intent is confined to the first element, such that it is not necessary to establish that a person intended to act unlawfully. See Esso at [176], [200]; Australian Building and Construction Commissioner v Hall [2017] FCA 274 at [174] (Flick J), referring to Esso.

135    Coercion implies a high degree of compulsion, in a practical sense, and not some lesser form of pressure by which a person is left with a realistic choice as to whether or not to comply. See National Tertiary Education Industry Union v Commonwealth (2002) 117 FCR 114 at [103]-[104]; [2002] FCA 441. The terms of the unlawful statements, and the forcefulness within which they were made, the Commissioner submits, satisfies this test.

136    The Commissioner contends that the illegal, illegitimate or unconscionable conduct arises from the making of the unlawful statements.

137    The Commissioner submits that the issue of employees resigning their membership of the CFMEU and thereafter not being a member of the union was at the heart of Mr Upton’s presence at the Gorgon Project on 3 December 2015. Such conduct constituted engagement in industrial activity for the purposes of s 347(a) of the FW Act.

138    The Commissioner further submits that Mr Upton threatened to take action against the non-union employees with intent to coerce each of them to engage in industrial activity contrary to s 348 of the FW Act.

139    Mr Upton notes that the Commissioner alleges that he contravened s 348 of the FW Act by making the threats alleged in [24] of the SOC.

140    Mr Upton submits that the Commissioner must prove that:

(1)    the conduct alleged in [24] of the SOC occurred; and

(2)    that conduct constituted:

(a)    a threat to take action against the non-union employees;

(b)    with the intention to coerce the non-union employees;

(c)    to engage in industrial activity.

141    Even assuming the conduct alleged in [24] of the SOC is established, as I have found it has been, Mr Upton submits that this conduct could not constitute a threat against the non-union employees, and could not satisfy the test for coercion.

142    Having regard to my factual findings above, I am satisfied that the conduct alleged in [24] of the SOC occurred, save for the statement about “standover tactics”.

143    I am also satisfied that the conduct constituted a threat to take action against non-union employees, not just Mr Keevers but him included.

144    While the concept of coercion involved here implies a high degree of compulsion, in a practical sense, and not some lesser form of pressure by which a person is left with a realistic choice as to whether or not to comply, it seems to me that the threats that I have found, including as to names being put on toilet doors of non-union employees, and the insistent demands that the Gorgon Project was a union site, and that the union would, in the future, have other union sites, such that non-union labour would not be welcome there, negated choice as to whether or not a presently un-unionised employee should, or should not, join the union. Plainly, the only practical choice they had – if they were to avoid the opprobrium that would follow from the threat if implemented – was Hobson’s choice – no real choice at all. That was an unconscionable threat to make.

145    I accept the submission made by the Commissioner that when one takes into account what was actually said and, on my findings, the forcefulness with which it was said, the coercion test is met.

146    I find, therefore, that Mr Upton contravened s 348 of the FW Act.

Did Mr Upton contravene s 500?

147    Section 500 of the FW Act provides:

A permit holder exercising, or seeking to exercise, rights in accordance with this Part must not intentionally hinder or obstruct any person, or otherwise act in an improper manner.

Note 1:    This section is a civil remedy provision (see Part 4‑1).

Note 2:    A permit holder, or the organisation to which the permit holder belongs, may also be subject to an order by the FWC under section 508 if rights under this Part are misused.

Note 3:    A person must not intentionally hinder or obstruct a permit holder, exercising rights under this Part (see section 502).

148    The Commissioner pleads, by [27] of the SOC, that the contents of the pleaded unlawful statements:

(1)    was threatening to the non-union employees;

(2)    was coercive to the non-union employees;

(3)    was intimidating to the non-union employees;

(4)    was abusive to the non-union employees;

(5)    was indecent and profane; and/or

(6)    otherwise involved improper conduct and behaviour.

149    By reason of those matters, the Commissioner alleges in [28] of the SOC that Mr Upton acted in an “improper manner” within the meaning of that term in s 500 of the FW Act, whilst exercising or seeking to exercise his rights under Pt 3-4 of the FW Act.

150    More particularly, the Commissioner submits that on or about 27 November 2015, Mr Upton issued the entry notice. Mr Upton did in fact enter the Gorgon Project on 3 December 2015 pursuant to the entry notice.

151    The Commissioner further submits that Mr Upton thereafter held discussions with employees during the meeting.

152    The Commissioner contends the requisite nature of the entry, being to exercise rights under Part 3-4 of the FW Act, for the purposes of the operation of s 500 of the FW Act is made out. See Construction, Forestry, Mining and Energy Union v John Holland Pty Ltd (2010) 186 FCR 88 at [7]­[12] (Spender J), [37]-[41] (Dowsett J) and [135] (Logan J); [2010] FCAFC 90.

153    The Commissioner says it is not necessary to establish that Mr Upton intended to act in an improper manner, rather merely that he did act in an improper manner. See Darlaston v Parker (2010) 189 FCR 1 at [54]; [2010] FCA 771; Hogan v Riley (2010) 182 FCR 583 at 590-1; [2010] FCAFC 30; Setka v Gregor (No 2) (2011) 195 FCR 203 at [35]-[37]; [2011] FCAFC 90. The phrase “improper manner” should be given its ordinary meaning. In R v Byrnes (1995) 183 CLR 501 at 514-515; [1995] HCA 1 cited in Gregor v Setka (2010) 199 IR 267 at [70]-[71] and without criticism on appeal in Setka v Gregor (No 2), the High Court used interchangeably “improper use” and “impropriety” and said:

Impropriety does not depend on an alleged offender’s consciousness of impropriety. Impropriety consists in a breach of the standards of conduct that would be expected of a person in the position of the alleged offender by reasonable persons with knowledge of the duties, powers and authority of the position and the circumstances of the case.

See also Director, Fair Work Building Industry Inspectorate v Myles [2013] FCCA 2229 at [103]-[108].

154    The Commissioner submits that if s 500 is engaged, the entry onto premises using a right of entry to achieve some purpose other than that for which the right of entry is provided will constitute “acting in an improper manner”. As to which, see the authorities under previous statutory regimes: Construction, Forestry, Mining and Energy Union v John Holland Pty Ltd at [12] (Spender J) and [41], [46]-[49] (Dowsett J) and John Holland Pty Ltd v Construction, Forestry, Mining and Energy Union (2011) 195 FCR 280 at [33]-[46] and [137]-[144]; [2011] FCA 770. See also Australian Building and Construction Commissioner v McLoughlin (2007) 165 IR 369 at [70]-[74]; and Office of the Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2008) 177 IR 118 at [23], [27].

155    The Commissioner contends that the conduct of Mr Upton, on any view, at the Gorgon Project on 3 December 2015 was improper. The content of the unlawful statements:

    was threatening to the non-union employees;

    was coercive to the non-union employees;

    was intimidating to the non-union employees;

    was abusive of the non-union employees;

    was indecent and profane; and/ or

    otherwise involved improper conduct and behaviour.

156    The conduct described above, the Commissioner submits, amounts to a breach of the standards of conduct that would be expected of a person in the position of Mr Upton by reasonable persons with knowledge of the duties, powers and authority of the position as a permit holder. See Byrnes at 514-515; Director of the Fair Work Building Industry Inspectorate v Cartledge (2015) 239 FCR 405; [2015] FCA 453 at [171] (Mansfield J).

157    The Commissioner submits that the contravention of s 500 of the FW Act by Mr Upton is made out.

158    Mr Upton notes that the Commissioner alleges Mr Upton contravened s 500 of the FW Act by the conduct alleged in [17] and [18] of the SOC.

159    Mr Upton submits that the Commissioner must prove that Mr Upton engaged in the conduct alleged, and must prove that that conduct was improper.

160    Even assuming the conduct is established, Mr Upton submits, that conduct does not constitute threatening, coercive, intimidating or abusive behaviour towards the non-union employees, and does not constitute indecent or profane conduct in the circumstances. The allegation that it was otherwise improper is insufficiently precise to bear response.

161    In making my factual findings above, I have accepted certain conduct, which I have found occurred, was in contravention of s 346(a) and s 348. But not all conduct alleged has been found to occur, especially the standover tactics allegation.

162    The result is that I accept that some statements made were threatening to non-union employees and relevantly coercive or intimidating, and can also be said to have been abusive of them. I have difficulty, however, in characterising what was said as “indecent and profane”. Even if indecent and profane, I am not sure it should be classified as acting in an improper manner.

163    I should also note that the Commissioner put it to Mr Upton that he issued the entry notice knowing of the resignations from the CFMEU and, thus, he had clear intent in dealing with that question when he went to Barrow Island. However, I have stated above that I am unable confidently to conclude – that is to say, on the balance of probabilities – that Mr Upton, in issuing the entry notice, was apprised of the “rumour” that some 90 union members had left the CFMEU following the making of the EBA and that he went to Barrow Island and the crib room meeting with the intent of engaging in the conduct that I have found contravened s 346(a) and s 348.

164    The concept of “act in an improper manner” is difficult to define. The Commissioner is correct, I am sure, to say that it should be given its ordinary meaning. It is, however, the expression “act in an improper manner” that is relevant here. The question is whether Mr Upton offended the proscription that he “must not … otherwise act in an improper manner”. There is some debate to be had in the construction of s 500, whether the adverb “intentionally” in any way qualifies or characterises the nature of the “act” in question, and whether the use of the word “otherwise” is relevant to this task of construction.

165    I note that in Darlaston v Parker, at [54], Flick J presumed that an act which amounts to acting in an improper manner did not need to be an intentional act. His Honour, however, observed that conduct which falls outside of an intentional hindrance or an intentional obstruction of a person, and yet falls within an “act in an improper manner” was not further defined in the legislation he was then considering; nor is it defined in the current FW Act.

166    In Cartledge, Mansfield J, at [171], dealing briefly with s 500 of the FW Act, considered that conduct of an officer of the Union making a statement – that contravenes s 348 of the FW Act – would also have contravened s 500, being an instance of acting in an improper manner. Mansfield J said:

The conduct of O’Connor in making that statement whilst attending at the site to exercise rights in accordance with his permit would amount to a contravention of s 500 because it would be a breach of the standards of conduct that would be expected of a person in the position of O’Connor by reasonable persons with knowledge of the duties, powers and authority of the position as a permit holder and in the circumstances as I have found them.

167    His Honour referred to Byrnes where the “standards of conduct” test was established in relation to directors’ duties under the corporations law.

168    In my view, the simple fact that s 346(a) and s 348 have been contravened does not necessarily mean that s 500 has also been contravened by Mr Upton. It seems to me that something more is required in the conduct alleged against a permit holder to establish that they have “otherwise act[ed] in an improper manner”.

169    The word “manner” is, in my view, relevantly defined in the Macquarie Dictionary (4th ed) as a noun to mean “way of doing, being done, or happening; mode of action, occurrence, etc”.

170    In that regard, what Mr Upton said, and its effect, and how he spoke, all may potentially comprise conduct falling under the ruling “act in an improper manner”.

171    Given my findings, I consider the conduct in question breached the standards of conduct that would be expected of a union organiser by reasonable persons with relevant knowledge of the duties of an organiser.

172    In those circumstances, I find the allegation that s 500 was contravened by Mr Upton to be made out.

Is the CFMEU liable for Mr Upton’s contraventions?

173    The Commissioner alleges the CFMEU’s liability for Mr Upton’s conduct arises from:

    section 363 and/or s 793 and/or common law in respect of the contraventions of s 346(a) and s 348; and

    section 793 and/or common law in respect of the contravention of s 500 of the FW Act.

174    Additionally, the Commissioner contends the CFMEU is also a person who was “involved in” Mr Upton’s contraventions of ss 346(a), 348 and 500, by reason of s 550 of the FW Act.

175    The Commissioner also contends the CFMEU’s liability flows from a combination of s 793 and s 550.

176    Section 363(1)(b) of the FW Act provides that for the purposes of Part 3-1, action taken by an officer or agent of the industrial association acting in that capacity is taken to be action of an industrial association.

177    The Commissioner notes that the CFMEU admits that at all relevant times, Mr Upton was an officer and employee of the union acting within the scope of his actual or apparent authority for the purposes of s 793 and within the requisite capacity for the purposes of s 363(1)(b) of the FW Act.

178    It can hardly be doubted, the Commissioner submits, that everything that Mr Upton did on 3 December 2015 was on behalf of his employer, the CFMEU. See Australian Building and Construction Commissioner v Australian Manufacturing Workers’ Union (The Australian Paper Case) [2017] FCA 167 at [162] (Jessup J). Mr Upton issued the entry notice on a CFMEU letterhead and recorded on the entry notice that he was “of the Construction, Forestry, Mining and Energy Union”.

179    At [13(b)(i)] of the CFMEU’s amended defence, the Commissioner notes, it is asserted that s 363 has no application to s 346 and s 348 to the extent that any alleged contraventions involve threats. The Commissioner says such a proposition is incorrect. Section 363(1) refers to “action taken” by an officer or agent of an industrial association. There is nothing to suggest that such action cannot encompass threats so as to attribute liability to the CFMEU for Mr Upton’s contraventions of s 346(a) and s 348.

180    In any event, the Commissioner submits, even if, contrary to the submission advanced above, s 363(1) does not attribute liability to the CFMEU for threats made by Mr Upton, there can be no doubt that s 793(1) does.

181    Section 793 of the FW Act provides that:

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

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

(b) .... ;

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

182    The Commissioner notes that the CFMEU, in its defence, does not deny that s 793(1) attributes liability for conduct engaged in on behalf of a body corporate by an officer, employee or agent, to the body corporate. All that the CFMEU asserts in respect of s 793(1) is that s 793 (and/or the common law) cannot attribute liability for conduct in respect of s 500, but can in respect of s 346(a) and s 348.

183    The Commissioner further notes that there are many examples of declarations which have been made by this Court on the conventional premise that a contravention by an official is, by reason of s 793, also a contravention by the CFMEU. See, for example Construction, Forestry, Mining and Energy Union v Director of Fair Work Building Industry Inspectorate (2016) 338 ALR 360; [2016] HCA 41 at [6] (Nettle J).

184    The Commissioner therefore submits that s 793 is accordingly to be construed according to its text, context and purpose (Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [69]-[71] (McHugh, Gummow, Kirby and Hayne JJ); [1998] HCA 28; Independent Commissioner Against Corruption v Cuneen (2015) 89 ALJR 475 at [57]-[62] (French CJ, Hayne, Kiefel and Nettle JJ); [2015] HCA 14. The heading to the section indicates that the purpose of the provision is directed towards issues which include the liabilities of bodies corporate. That purpose is to be construed in light of the text read as a whole. Section 793 is a provision of general application. The text does not incorporate, nor is it limited to, references to specific provisions of the FW Act.

185    The Commissioner submits that s 793 operates in a manner whereby the unlawfulness of the officer’s conduct is visited directly upon the body corporate (in this case, the CFMEU). Section 793 is a deeming provision. The effect of s 793 is that the unlawful conduct in question is taken “to have been engaged in also by the body corporate”.

186    The Commissioner refers to what Latham CJ observed in Mallan v Lee (1949) 80 CLR 198 at 211; [1949] HCA 48:

When under a statute a person is to be deemed to have done something which he has not in fact done the result is that he is to be treated by a court engaged in the interpretation and administration of the law as having incurred the consequences of that which he is deemed to have done for the purposes of which the statutory fiction is to be resorted to.

187    If the conduct of an individual officer constitutes a contravention of the FW Act by that individual, the Commissioner submits, the contravention is properly attributed to the CFMEU by reason of s 793.

188    Similarly, the Commissioner observes, in Australian Workers Union v Leighton Contractors Pty Ltd [2013] FCAFC 4 at [87], Katzmann J observed “liability for conduct merely means the condition of being answerable for or bound by the conduct”.

189    Her Honour also observed in Leighton Contractors, at [89], the factual premise of s 793 is that “the natural person has engaged in certain conduct. It then moves from that premise to attribute or assign liability to the body corporate in certain prescribed circumstances”.

190    The Commissioner submits that one of the statutory purposes of the provision is to make the CFMEU liable for a contravention of the FW Act by its officers. This was explained by White J in Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2016] FCA 413 at [37], citing Cooper J in Hamberger v Construction, Forestry, Mining and Energy Union [2002] FCA 585,who stated:

The statutory intention underlying section 298B(2) [the predecessor to the current section] is to make the organisation responsible for the conduct of its officers. It is intended to encourage those organisations to take active steps to control the actions of its officers, servants and agents to ensure as far as is possible by taking all reasonable steps, that the conduct of them is not in contravention of Part XA of the Act.

191    The CFMEU disputes that s 793 can be relied on to prove the CFMEU has contravened s 500, but otherwise accepts that the Commissioner can rely upon s 793 in relation to the alleged contraventions of s 346(a) and s 348, provided that the primary contraventions by Mr Upton are made out on the evidence.

192    The Commissioner notes that if, contrary to the submissions advanced above, the CFMEU is not found to be liable pursuant to s 363 and/or s 793, the CFMEU was “involved in” each of Mr Upton’s contraventions within the meaning of s 550 of the FW Act, and thereby contravened each of those provisions.

193    Section 550(2) of the FW Act provides that:

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

...

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

…

194    The Commissioner submits that to be “knowingly concerned” requires that a party be a participant with knowledge of the essential facts of the contravention. However:

    Actual knowledge includes wilful blindness - that is, “deliberately abstain[ing] from asking questions or making enquiries” (see Medical Benefits Fund of Australia Ltd v Cassidy (2003) 135 FCR 1 at [87] (Stone J); [2003] FCAFC 289. See also Giorgianni v The Queen (1985) 156 CLR 473 at 482-487; [1985] HCA 29, Pereira v Director of Public Prosecutions (1988) 82 ALR 217 at 219-220; [1988] HCA 57, and Rafferty v Madgwicks (2012) 203 FCR 1 at [261]; [2012] FCAFC 37).

    It is not necessary to establish for a person to be knowingly involved that the person had knowledge that those essential facts (of which the person was aware) also constituted a contravention of the law. See, for example, Yorke v Lucas (1985) 158 CLR 661 at 670; [1985] HCA 65; Australian Competition & Consumer Commission v IMB Group Pty Ltd [2003] FCAFC 17 at [133]; Giorgianni at 479-483.

195    The Commissioner submits that the distinction between knowledge of the essential facts and knowledge of unlawfulness was confirmed by Gummow, Hayne and Heydon JJ in Rural Press Ltd v Australian Competition and Consumer Commission (2003) 216 CLR 53 at [48]; [2003] HCA 75 (see also IMB Group at [133]; Rafferty v Madgwicks at [254]). Upholding the reasoning of the Full Court in relation to accessorial liability, the plurality held:

In order to know the essential facts, and thus satisfy s 75B(1) of the Act and like provisions, it is not necessary to know that those facts are capable of characterisation in the language of the statute.

196    While accessorial liability under s 550 of the FW Act does not require knowledge that there has been a contravention, the Commissioner submits it does require association with, implication in, or a practical connection with the contravening conduct. See Construction, Forestry, Mining and Energy Union v Clarke (2007) 164 IR 299 at [26]; [2007] FCAFC 87.

197    The Commissioner submits that as to being an intentional participant in the contraventions, the CFMEU admits that Mr Upton was an officer and employee of the CFMEU acting within the scope of his authority and the holder of an entry permit issued in his capacity as an officer of the CFMEU. There has been no evidence filed on behalf of the CFMEU, let alone evidence to the effect that Mr Upton was discouraged from attending the Gorgon Project, or directed not to engage in the conduct that he did. The CFMEU was plainly an intentional participant.

198    As to having knowledge of the essential elements of the contraventions, the Commissioner submits that what is necessary is that the CFMEU know the facts that would make Mr Upton’s conduct a contravention (The Australian Paper Case at [158]). The Commissioner contends that the CFMEU did know of such facts. The terms of the unlawful statements and Mr Upton’s repeated references to “we” and “union” can only imply that the union itself knew of the matters which were the subject of the unlawful statements. Further, Mr Upton travelled to the Gorgon Project in his capacity as an employee and officer of the CFMEU in the exercise of his entry rights, pursuant to an entry permit which was applied for by the CFMEU. The CFMEU thus, through Mr Upton, had the requisite knowledge.

199    The Commissioner submits it can hardly be doubted that everything Mr Upton did was done on behalf of the CFMEU. Pursuant to s 793(1), what Mr Upton did, therefore, was also done by the CFMEU. Further, by s 793(2) of the FW Act, the CFMEU’s state of mind was that of Mr Upton. By s 793(3), “state of mind” includes knowledge, intention and purpose. See The Australian Paper Case at [162].

200    Applying the circumstances above to s 550 of the FW Act, the Commissioner submits that the CFMEU was therefore knowingly concerned in Mr Upton’s contraventions of s 346(a) and s 348 (and s 500), and therefore contravened each of those provisions itself (The Australian Paper Case at [162]).

201    The CFMEU submits that it is doubtful that the Commissioner can ever rely upon s 550 in order to make the CFMEU liable as an accessory for Mr Upton’s conduct. In considering whether a party can be liable as an accessory, the Court must consider the nature of the provisions which are said to have been contravened.

202    It notes that in Mallan, Dixon J said, at 216, that:

There is a number of cases which show that the application of sections dealing with aiding and abetting may be excluded by the nature of the substantive offence or the general tenor of the policy of the provisions by which it is created…

203    The CFMEU submit that the examples then cited by Dixon J show that accessorial liability is inapplicable when the intention of the prohibition, or the policy underpinning the prohibition, suggest that the prohibition is only intended to apply to the contravening individual (R v Tyrell (1894) 1 QB 710).

204    After submitting that only permit holders can contravene s 500, the CFMEU submits, both having regard to its text and the extrinsic material, s 550(1) is not aimed at the task of ensuring that a body corporate is liable for the conduct of its officers, employees or agents; s 793 is aimed at that task, provided that the conduct attributed can satisfy the elements of the provision allegedly contravened.

205    The Commissioner finally seeks to rely upon the combination of s 550(1) and s 793 in order to establish the liability of the CFMEU for contravention of s 346(a) and s 348, as well as s 500. The CFMEU submits that such an approach is impermissible for the following reasons.

    First, the use of two legal fictions in combination is artificial to the point that the purpose of each provision is corrupted. Section 550(1) is a provision that attributes liability for a contravention by the principal to an accessory. In contrast, s 793 is a provision that attributes the conduct of a principal to a body corporate in the manner of vicarious liability. There is no indication in the FW Act that the provisions, with distinct purposes, are to be read together.

    Second, the contrasting purposes of the provisions would have the result that, if liability was attributed by reading the provisions together, the principles underpinning the provisions would be inverted.

206    The CFMEU submits that s 793 of the FW Act attributes the conduct of an officer, employee or agent of a body corporate to the body corporate. That is, the conduct of the primary contravener or principal becomes the conduct of the body corporate for the purposes of determining its liability.

207    By then relying upon s 550(1) of the FW Act, the CFMEU submits, the Commissioner is effectively submitting that a body corporate can be found liable by reason of being “knowingly concerned” in its own conduct.

208    The CFMEU submits that in Mallan, Dixon J noted at 216:

It would be an inversion of the conception on which the degrees of offending are founded to make the person actually committing the forbidden acts an accessory to the offence consisting in the vicarious responsibility for his acts.

209    Further, the CFMEU submits in Hamilton v Whitehead (1988) 63 ALJR 80; [1988] HCA 65, the High Court considered whether a natural person could be personally liable as an accessory where their acts constituted the office for which the company was vicariously liable. Mason CJ, Wilson and Toohey JJ distinguished the comments in Mallan, noting that, at 82:

The company is not vicariously liable for the actions of the respondent. The company is the principal offender and the respondent is charged as an accessory.

210    The effect of s 793, therefore, is to transform the CFMEU into a principal, the CFMEU submits, and the conduct of Mr Upton becomes its conduct. The effect of the Commissioner’s submissions would be to make the CFMEU liable as an accessory by reason of its vicarious responsibility for Mr Upton’s conduct.

211    The CFMEU submits that such an approach is plainly impermissible on the reasoning in Mallan, and gains no support from the reasoning in Hamilton.

212    If the submissions advanced by the Commissioner in respect of ss 363, 793 and/or 550 are not accepted, the Commissioner submits that the CFMEU is, in any event, vicariously liable at common law for each of Mr Upton’s contraventions.

213    Having regard to the CFMEU’s admissions in [2] of its defence, the Commissioner submits that it can hardly be doubted that everything Mr Upton did was done on behalf of the CFMEU, such that the CFMEU is vicariously liable for his conduct at common law.

214    The Commissioner submits the entirety of Mr Upton’s conduct engaged in on 3 December 2015 at the Gorgon Project was what may broadly be described as CFMEU business. He was not on “a frolic of his own” as outlined in A&L Silvestri Pty Ltd v Construction, Forestry, Mining and Energy Union (2007) 165 IR 94 at [85]; [2007] FCA 1047, citing New South Wales v Lepore (2003) 212 CLR 511 at [40]-[41]; [2003] HCA 4. See also Lepore at [128] per Gaudron J: “to hold an employer liable for the authorised acts of an employee or acts done in the course of his or her employment, is simply to apply the ordinary law of agency”.

215    The Commissioner submits the conduct of Mr Upton was either authorised by the CFMEU, or was so connected with authorised acts that they may be regarded as improper modes of doing them. Lepore at [42], [128], cited in Qantas Airways Ltd v Transport Workers’ Union of Australia (2011) 211 IR 1 at [37]; [2011] FCA 470. The unlawful statements were improper and wrongful methods of performing a function for which a union official attending premises such as the Gorgon Project are ordinarily authorised, namely, holding discussions with employees (or other authorised means) consistent with the FW Act.

216    Mr Upton’s conduct was in the course of his employment and/or agency with the CFMEU, the Commissioner submits, and was thus conduct for which the CFMEU is vicariously liable at common law. It follows that the CFMEU, being vicariously liable at common law for Mr Upton’s conduct, contravened ss 346(a), 348 and 500 of the FW Act.

217    The CFMEU rejects those submissions and notes that the common law doctrine of vicarious liability is a doctrine of tort. See Lepore at [40]-[74]; particularly the comment of Gleeson CJ at [40] that “An employer is vicariously liable for a tort committed by an employee in the course of his or her employment.” See also Sappideen C, O’Grady C, Riley J, Macken’s Law of Employment (7th ed, Lawbook Co, 2011) at 480-489. Recent consideration of the doctrine has focused on whether, and in what circumstances, an employer is vicariously liable in tort for the intentional, criminal acts of its employees (Prince Alfred College Incorporated v ADC (2016) 258 CLR 134; [2016] HCA 37).

218    The CFMEU says it has not been able to identify any authority for the proposition that common law vicarious liability could be relied upon to found a contravention of a civil remedy provision of a statute.

219    In seeking to expand the doctrine of vicarious liability from tortious conduct to statutory contraventions, the CFMEU say that it is incumbent upon the Commissioner to provide justification for such a significant expansion that is grounded, if not in authority, then in theory.

220    The CFMEU says that the authorities cited by the Commissioner at [91] to [92] of his submissions do not assist with this task. In A&L Silvestri Pty Ltd, Gyles J assessed whether the CFMEU was vicariously liable in tort for interference with contractual relations. His Honour noted at [85] (emphasis added in submissions):

Each of the individual respondents was a full time official of either the CFMEU or CFMEU NSW. Each was engaged in what may broadly be called union business on the days in question. No one was on a frolic of his own. For relevant purposes, officers of each organisation were cooperating or acting in concert to achieve a result. The conduct of each was in the course of employment. Each organisation is liable on ordinary principles of vicarious liability in tort…

221    Similarly, in Qantas Airways Ltd v Transport Workers’ Union, Moore J considered whether, aside from the provisions in the WR Act, the Transport Workers’ Union of Australia could be vicariously liable in tort for the conduct of its delegates. His Honour commented at [36] (emphasis added in submissions):

Apart from s 826, the common law provides that an employer can be vicariously liable for the torts of the employee if they are committed within the course of his employment. There must be a close nexus between the work the employee is employed to do and the conduct. If, however, the employee is on a “frolic of his own” it has been held that the connection between the employer and the tortious act is too tenuous to render the employer liable.

222    Furthermore, it says, as a matter of theory, the inquiries required in relation to the liability of bodies corporate under the FW Act and in tort are distinct. Under the FW Act the inquiry is whether, as a matter of fact, the conduct of the body corporate satisfies the elements of the contravention said to have been committed by it (Director of the Fair Work Building Inspectorate v Robinson [2016] FCA 225 at [48]). In tort, the inquiry is whether, as a matter of principle, the body corporate can be found liable for the tortious conduct of its agent, notwithstanding that the conduct was not the conduct of the body corporate (Prince Alfred College Incorporated v ADC).

223    There is, the CFMEU submits, no basis, either in the authorities or in theory, for the Commissioner’s reliance on common law vicarious liability in this matter.

224    In my view, it is, in the end not necessary to consider all the alternative means by which the CFMEU might be held liable for Mr Upton’s contraventions of s 346(a), s 348 and s 500, because I find the CFMEU may be considered liable for Mr Upton’s conduct under s 793 of the FW Act in respect of the contraventions of s 346(a) and s 348, and under s 550 and s 793 in respect of the s 500 contravention.

225    The terms of s 793 have been set out above at [174].

226    As I have found those contraventions proved, it follows that the CFMEU is taken to have been engaged in that conduct, and so also to have contravened s 346(a) and s 348.

227    As to the liability of the CFMEU with respect to the s 500 contravention, in the recent decision of Australian Building and Construction Commissioner v Huddy (No 2) [2017] FCA 1088, White J dealt with the submissions of the parties, not dissimilar to those outlined above, concerning the effect of s 793 in conjunction with s 550(2)(c) and the submission that thereby the CFMEU may be taken to have also contravened s 500 where an officer has been found guilty of contravention.

228    At [32], White J found as follows:

In my opinion, the Represented Respondents’ submission should not be accepted. It overlooks that s 793 operates as a form of deeming provision ‘for the purposes of this Act’. Those purposes include s 500. Section 793(1) requires that the conduct to which it refers be taken to have been engaged in by the body corporate. In this case the conduct of Mr Huddy on 22 October 2013 is to be taken to have been the conduct of the CFMEU. Mr Huddy’s knowledge on 22 October 2013 may be taken to have been the knowledge of the CFMEU.

229    The judge, at [33], then said that the only question remaining was whether that conduct, with that knowledge, was sufficient to make the CFMEU a person “involved in” the officer’s contravention of s 500. That was to say, the question was whether the CFMEU’s conduct (albeit constituted by its officer’s conduct), with its knowledge of the matters constituting the elements of that contravention of s 500 (albeit constituted by the officer’s own knowledge), meant that it had been knowingly concerned in, or a party to, that contravention.

230    At [34], White J then stated:

In my opinion, the statutory fictions indicate that this question should be answered in the affirmative. The CFMEU, with its separate legal personality, is deemed to have carried out the same actions as did Mr Huddy on 22 October 2013. Because Mr Huddy was exercising a right of entry pursuant to s 484, his actions constituted a contravention of s 500. As the CFMEU had no right of entry, its actions did not contravene s 500 but, together with its deemed state of mind, indicate that it was knowingly concerned in Mr Huddy’s contravention. So much is apparent from Hamilton v Whitehead (1988) 166 CLR 121 at 128 in which the High Court regarded as ‘plainly right’ the submission that, because the imputed accessory was the actor in the conduct constituting the offences and had knowledge of all the material circumstances, he was “knowingly concerned” in the commission of the offences committed by the company constituted by his conduct.

231    White J, at [35], agreed with what Charlesworth J said in Australian Building and Construction Commissioner v McDermott (No 2) [2017] FCA 797 at [21], to the effect that it did not matter that the deemed physical acts of the secondary participant are the same acts in fact engaged in by the primary contravener.

232    White J, at [36], expressly rejected the respondents’ submissions that, by legislative construct, the CFMEU had performed “the forbidden act” (the contravention of s 500). His Honour said that because it does not hold an entry permit, the CFMEU’s conduct cannot amount to an act forbidden by s 500 of the FW Act. However, that, he considered, was not a matter of consequence in the consideration of accessorial liability. A person may be involved as an accessory in a contravention by another even if the contravention is of such a nature that the accessory could not have contravened the provision as a principal, referring to Maroney v The Queen (2003) 216 CLR 31 at [11]; [2003] HCA 63.

233    His Honour added, at [37], that the case before him was not one in which the conduct of a person constituting a primary contravention by that person or by another whose liability arises from that conduct is then relied upon to establish the liability of the same person as an accessory. Thus, Mallan does not apply in this case.

234    At [38], White J concluded:

In short, I consider that the statutory fictions established by s 793 mean that the conduct of an official of a body corporate may constitute a primary contravention by the official and accessorial conduct by the body corporate. I am satisfied that the CFMEU should be taken to have contravened s 500 by reason of it having been directly or indirectly knowingly concerned in Mr Huddy’s contravention of s 500.

235    Understanding that I should apply this reasoning unless I consider it to be plainly wrong, it follows that the CFMEU should be taken to have contravened s 500 by reason of it having been directly or indirectly knowingly concerned in Mr Upton’s contravention of s 500, for the reasons contended for by the Commissioner as set out above.

Conclusion

236    The Commissioner is entitled to declarations that Mr Upton contravened ss 346(a), 348 and 500; and that the CFMEU has thereby contravened the same provisions.

237    I will hear from the parties in due course on the question of penalties.

Associate:

Dated:    21 September 2017