FEDERAL COURT OF AUSTRALIA
Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (The Syme Library Case) [2018] FCA 1142
ORDERS
DATE OF ORDER: |
THE COURT ORDERS THAT:
1. The further hearing of the application be listed at 10.15 am on 14 August 2018.
2. On or before 12 noon on 7 August 2018 the applicant file and serve any affidavits and an outline of his written submissions relating to penalties and any other relief sought.
3. On or before 5.00 pm on 13 August 2018 the respondents file and serve any affidavits and an outline of their written submissions in response to those of the applicant.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
TRACEY J:
1 The Australian Building and Construction Commissioner (“the Commissioner”) has alleged various contraventions of the Fair Work Act 2009 (Cth) (“the Act”) by the Construction Forestry, Mining and Energy Union (“the CFMEU”), a CFMEU organiser, Harris HMC Interiors (Vic) Pty Ltd (“Harris Interiors”) and three of Harris Interiors’ employees.
2 The contraventions are alleged to have occurred in October and November 2013 during the redevelopment of the Kathleen Syme Library and Community Centre (“the Syme Library”) in Carlton, Melbourne (“the Site”). Harris Interiors was engaged to repair and refit the building and construct an extension (“the Project”). Certain demolition works were required.
3 Harris Interiors engaged a subcontractor, Monark Industries Pty Ltd, which trades as Hughes Demolition, to perform the demolition works. These works began in October 2013.
4 Hughes Demolition did not have an enterprise agreement. The Commissioner claims that the respondents required it to enter into such an agreement in order to perform the works.
5 The Commissioner alleges adverse action (s 340), coercion (ss 343 and 348), false or misleading representations (ss 345 and 349) and discrimination (s 354) contrary to the Act.
6 The first respondent, the CFMEU, is an industrial association within the meaning of s 12. The second respondent, Mr Theo Theodorou, is an officer and organiser employed by the CFMEU. Mr Shaun Reardon, another CFMEU officer and the Assistant Secretary of the CFMEU Construction Division in Victoria, is also relevant.
7 The third respondent, Harris Interiors, was the head contractor for the Project. It employed the remaining respondents. Mr Carmelo Silvestro, the fourth respondent, was the Site Manager. The fifth respondent, Mr Shanne Darker, was the Project Manager. The sixth respondent, Mr Jason Dwyer, was the Operations Manager. From time to time, I will refer to the third to sixth respondents as, collectively, “the Harris respondents”. Mr Michael Woods, a witness in the proceeding, was a Contract Administrator for Harris Interiors.
8 Mr David Seckold was the sole owner and Director of Hughes Demolition. Mr Warwick Dunlop was the Site Foreman for Hughes Demolition and Mr Alex Loft was an Estimator. Other employees include Messrs Grant Prowse, Ashley Wren and Matthew Crew.
9 Mr Nicholas Smith, an Industrial Relations Adviser from the Master Builders Association of Victoria (“the MBAV”), also had a role to play in the events relevant to this proceeding.
10 By an originating application filed on 5 September 2014, the Director of the Fair Work Building Industry Inspectorate sought declarations under s 21 of the Federal Court of Australia Act 1976 (Cth) and penalties under s 546 of the Act. A statement of claim was also filed that day.
11 The statement of claim alleged that the respondents had contravened the Act in October and November 2013. The CFMEU and Harris Interiors were said to be liable under the common law and ss 363 and 793. The amended statement of claim filed on 2 October 2014 did not materially change the case.
12 On 17 October 2014 the first and second respondents filed a defence in which they denied the contraventions. An amended defence, filed on 4 May 2015, maintained those denials. In both versions Mr Theodorou claimed the privilege against self-exposure to a civil penalty.
13 Also on 17 October 2014 the third to sixth respondents filed a defence that responded to the amended statement of claim. Those denials were substantially maintained in the amended defence filed on 13 February 2017.
14 In both versions of their defence, the third to sixth respondents alleged that Hughes Demolition had, on 24 September 2013 and 1 October 2013, falsely represented to Harris Interiors that it had an enterprise agreement. Harris Interiors said it relied on those representations when entering the contract and that it was unaware there was no agreement until 22 October 2013.
15 On 7 November 2014 the Commissioner filed a reply to the defence of the third to sixth respondents. He denied that Hughes Demolition had made such a representation.
16 On 15 December 2016 it was ordered that the Commissioner was to be the applicant: Building Construction Industry (Consequential and Transitional Provisions) Act 2016 (Cth) Sch 2 cl 19.
17 Following a series of timetabling orders and procedural steps the application was heard over five days from 13 February 2017.
18 The circumstances of the alleged contraventions were, to a large extent, uncontroversial. There were, however, some significant conflicts in the evidence. In the course of outlining the factual background I will identify the conflicting evidence to the extent that it is material.
The meeting on 24 September 2013
19 Prior to the award of the contract, Harris Interiors held two meetings with Hughes Demolition. The first meeting occurred on 24 September 2013 when Mr Loft of Hughes Demolition met with Messrs Darker, Silvestro and Woods of Harris Interiors.
20 The subjects discussed at that meeting are disputed. Mr Loft maintained that no questions were asked about an enterprise bargaining agreement (“EBA”) or compliance with any code. Mr Woods did not recall any mention of an EBA, the National Code of Practice (“the Code”) or the CFMEU.
21 In contrast, Mr Silvestro said that either Mr Woods or Mr Darker had asked Mr Loft if Hughes Demolition was “EBA compliant” and that Mr Loft had said, “We are EBA compliant”. Mr Silvestro’s contemporaneous note records: “Spoke to Alex Loft and asked us to send full documentation. He is EBA compliant.”
22 Similarly, Mr Darker’s evidence was that either Mr Silvestro or Mr Woods had asked Mr Loft, “Does Hughes Demolition have a compliant agreement?” and that Mr Loft had replied, “Yes”.
23 These divergent recollections make it difficult to determine whether the question of whether Hughes Demolition had an EBA was discussed at this meeting. What is clear, however, is that, if the issue arose, it was because of a question raised by a representative of Harris Interiors.
The meeting on 1 October 2013
24 The second meeting was on 1 October 2013 at about 8.00 am. Messrs Seckold and Loft met with Messrs Darker, Silvestro and Woods to review the tender documents and contract. Mr Dwyer was briefly present for part of the meeting. It was common ground that Mr Darker or Mr Silvestro asked Mr Seckold, “Do you have any agreements in place?”
25 Mr Woods’ evidence was that Mr Seckold was asked, “Are you Code compliant or do you have any agreements in place which Harris should be aware of” and that he had responded, “We have an EBA”. Mr Silvestro said that Mr Seckold had replied that they had “a signed agreement”. Mr Darker’s evidence was that Mr Seckold had replied, “We are compliant”.
26 Mr Seckold maintained that he had said, “No we don’t have an EBA”, and, “We are compliant with the Code and industry standards and requirements”.
27 Mr Loft’s evidence was that Mr Darker had asked whether Hughes Demolition had an EBA. He did not recall Mr Darker referring to the Code. Mr Loft said that Mr Seckold responded with words to the effect that, “Hughes works in accordance with building industry standards and EBA requirements”. Mr Loft did not recall Mr Seckold saying that Hughes Demolition was “EBA compliant”.
28 Again it is difficult to determine precisely what was said. At this meeting the issue of an EBA was raised and it was raised by a representative of Harris Interiors.
Email correspondence
29 The next day, on 2 October 2013 at 12.55 pm, Mr Silvestro sent an email to Mr Woods of Hughes Demolition setting out a list of the items he wished to ensure were covered off with the contractors for the Project. There was no mention of an EBA.
30 On 8 October 2013 at 11.04 am, Mr Silvestro sent an email to Hughes Demolition listing a number of missing documents which he required to be submitted to Harris Interiors before it commenced work on the Site. Messrs Darker and Woods were copied to the email. There was no reference to an EBA. The following day, on 9 October 2013, Hughes Demolition sent Mr Silvestro an email attaching some documents.
31 On 9 October 2013 at 3.18 pm Mr Silvestro emailed Hughes Demolition about a safe work method statement. There was no reference to an EBA. Messrs Darker and Woods were again copied to this email.
32 On 9 October 2013 at 3.33 pm Mr Woods emailed Hughes Demolition with a copy of the proposed contract. The email requested that a hard copy of an EBA be brought to the Site on the first day of work:
2. Hardcopies will also need to be brought to site on the date of your start; Copies of Site specific – JSAs / SWMS / OH&S Management Plan / Licences / Certificate of Currency for Public Liability – value of $10 million / Work Cover / EBA / Permit to work / Plans / White and Red Cards/MSDS Register.
…
Note: All of the above points need to be fully understood and undertaken prior to starting the works. If you are unsure about any of the above, please give me a call to discuss.
33 On 10 October 2013 Mr Loft arranged for Hughes Demolition’s demolition method statement to be sent to Mr Silvestro. On 11 October 2013 Mr Silvestro emailed Hughes Demolition to ask for its safety management plan. There was no specific reference to an EBA in any of the exchanges which occurred on these days.
34 On 17 October 2013 Mr Silvestro emailed Hughes Demolition about “some more items to be updated to get paperwork up to scratch” and said that it “[m]ust have all copies on site by the close of business Friday 17.10.2013.” There was no reference to an EBA.
The commencement of works and the demolition contract
35 In the meantime, on around 8 or 9 October 2013, Harris Interiors took possession of the Project.
36 On 10 October 2013, Hughes Demolition commenced work on the Site. An induction meeting was held by Mr Silvestro and attended by Messrs Dunlop, Loft, Darker and Dwyer. There was no discussion of an EBA. During the induction, Hughes Demolition handed over a number of documents in a folder to Mr Silvestro. These documents included some of those requested in the email of 9 October 2013. There was no EBA among those documents. Work then commenced.
37 The demolition contract was signed by Mr Loft on behalf of Hughes Demolition on 17 October 2013 and by Mr Woods on behalf of Harris Interiors on 18 October 2013. It was not a term of the contract that the employees be covered by an EBA.
38 The contract did contain terms that: subcontractors were to “observe the provisions of any relevant industrial awards and any Building Industries Agreements current at the time of the execution of the sub-contract works”; that “all works must be fully compliant to current Industrial Standards and Building Codes of Australia”; and that, if Hughes Demolition was unable to perform the contract, Harris Interiors was entitled, after giving written notice, to employ additional labour and deduct those costs from the monies due to Hughes Demolition.
The CFMEU’s presence on the Site in October 2013
39 Various witnesses gave evidence about Mr Theodorou’s presence on the Site and related interactions with him.
40 Mr Dwyer’s evidence was that, shortly after Harris Interiors took possession of the Site on 8 and 9 October 2013, he was contacted by Mr Theodorou who indicated that he wished to introduce himself to the Site team and discuss CFMEU requirements.
41 Mr Silvestro’s evidence was that Mr Theodorou attended the Site sometime in October 2013. He gave his business card to Mr Silvestro and said that he wanted to speak with the “members” working on the Site. He also said that Hughes Demolition did not have an EBA in place.
42 Mr Darker and Mr Silvestro both gave evidence that, in late October 2013, Mr Silvestro telephoned Mr Darker. Mr Silvestro said, “The union are on site, Hughes doesn’t have an EBA. Have they given you a copy?” Mr Darker replied, “No they haven’t.”
43 As mentioned, Mr Theodorou did not give evidence. I am prepared to accept that he attended the Site at some point in October 2013 for the purposes of discussing an EBA with Hughes Demolition and Harris Interiors and that he foreshadowed that attendance with Harris Interiors.
The three email requests for the EBA in October 2013
44 On 22 and 23 October 2013, Mr Darker sent three emails to Mr Seckold requesting that he provide a copy of Hughes Demolition’s EBA.
45 He sent the first email on 22 October 2013 at 10.30 am to Messrs Seckold and Loft. It stated:
Alex/David
Can you please provide evidence of your EBA / Workplace Agreement to HHMC [Harris Interiors] urgently.
We currently have the Union onsite claiming that you don’t have this in place, this was confirmed [in] pre-tender interviews by Hughes Demolition.
Please call me to discuss and send through all information urgently.
Thanks
46 He sent the second email to Mr Seckold at 12.24 pm on the same day. Messrs Dwyer, Silvestro and Woods were copied to the email. It stated:
Alex,
As discussed please provide evidence of compliance by 2pm today.
Thanks.
47 Mr Darker sent the third email on 23 October 2013 at 12.23 pm to Mr Seckold and Mr Loft. Messrs Dwyer, Silvestro and Woods were again copied to the correspondence. It stated:
David / Alex,
Can you please update HHMC [Harris Interiors] to the latest with EBA Agreement.
This whole situation is disappointing considering this was previously confirmed in Pre-award meetings in our office; as [a] consequence this will now cause further increased CFMEU awareness on this project.
Please respond urgently.
The first CFMEU representation on 23 October 2013
48 At about the same time or shortly after those emails, on 23 October 2013, Mr Seckold had a telephone conversation with Mr Theodorou. Mr Seckold’s evidence was that Mr Theodorou had called him and had said:
As Hughes Demolition is working in the city, it needs to obtain an enterprise agreement with the CFMEU for its employees.
49 Mr Theodorou denied making this statement.
The second CFMEU representation in late October 2013
50 In late October 2013, Mr Seckold met with Mr Theodorou and Mr Reardon at the CFMEU offices. Mr Seckold said that, during the meeting, Mr Theodorou or Mr Reardon gave him a copy of an enterprise agreement which they wanted him to sign and said:
You work in the city so you have to have an EBA and you should sign this now.
51 Mr Theodorou and the CFMEU denied that this meeting occurred, that those words were said, or that a copy of the agreement was provided.
The alleged “threat” by Mr Theodorou on 15 November 2013
52 Mr Seckold and Mr Theodorou had meetings planned on 14 and 15 November 2013. Mr Seckold did not attend those meetings. He admitted that he did not intend to keep the latter appointment as he did not want to sign an EBA. Mr Seckold understood the purpose of the meeting to be the signing of an EBA acceptable to the CFMEU.
53 Mr Seckold called Mr Theodorou in the morning of Friday 15 November 2013 to tell him that he would not make it to their meeting that afternoon. At about 3.30 pm on that day, Mr Seckold spoke to Mr Theodorou by telephone. During that conversation Mr Seckold told Mr Theodorou that, “financially I’m not able to sign the enterprise agreement right now”. Mr Seckold’s evidence was that Mr Theodorou said in response:
I’m going to make everything very difficult and not let the boys work on the Site.
54 Mr Theodorou denied making that statement.
The alleged “threat” by Mr Dwyer on 15 November 2013
55 At about 5.00 pm on 15 November 2013, Mr Seckold spoke with Mr Dwyer. Mr Seckold’s account was that Mr Dwyer said:
If you don’t sign the EBA with the union, then your boys would not be able to work on the site on Tuesday.
…
[You need to meet with Mr Theodorou to] sort this all out as he has hit the roof.
…
If you don’t sign the enterprise agreement they’re going to get other employees that are covered by an enterprise agreement to finish the job and then charge Hughes Demolition for it.
56 Mr Dwyer admitted the telephone conversation had taken place but disagreed with what was said. His evidence was that the conversation revolved around the progress of the work on Site and the CFMEU requests for Hughes Demolition’s EBA. He said that it went as follows:
Dwyer: “You guys need to get something worked through with Theo, the frustration is boiling over with the CFMEU. Theo has said if you don't get it signed you guys aren’t going to get to work on Tuesday. You have to find some form of resolution even if it means putting your guys on another site and getting in labour guys to assist. If you can't stick to the program we will get others in. lf you need additional labour we can help you out with that. Would that help?”
Seckold: “It may or may not, send me through the contacts lf you don't want them to work, I need it in writing, otherwise we will start work at 7am on Tuesday in accordance with the contract.”
Dwyer: “Well that instruction will not be coming from me Dave. We want you to work and we want more of your people to come to work. We can't fall any further behind of the program of works and we won't be delayed by the CFMEU. We need to get this back on track. We don't care whether you have an EBA or not we just need to keep going.”
The alleged “threat” by Mr Darker
57 On 15 November 2013 at 5.23 pm Mr Darker sent Mr Seckold an email. It provided:
David,
As discussed with Jason Dwyer this afternoon.
Please advise by Monday midday with your progress with Theo from CFMEU in relation to signing up to EBA.
If this cannot be achieved then additional sourced of fully compliant labour will required to be sourced by Tuesday onsite, as this project must be kept moving.
If this cannot be sourced we will have no other option but to find the additional labour to contra charge accordingly.
Please call myself or Jason by Midday Monday on an update.
Thanks
The engagement of the Master Builders Association of Victoria
58 On 18 November 2013 at 3.18 pm, Mr Seckold sent an email to Mr Dwyer outlining the financial impact on Hughes Demolition if it were to sign the EBA and that he would be seeking additional charges of $26,000 plus GST. The email stated “Hughes Demolition will be engaging Master Builders Association of Victoria to facilitate the undertaking of the EBA rates.”
59 The following day, on 19 November 2013, Mr Dwyer emailed Mr Smith from the MBAV at 11.02 am to ask for something in writing which confirmed that Hughes Demolition had engaged it to facilitate an EBA.
60 At 11.08 am Mr Smith sent an email to Mr Dwyer which attached a letter on MBAV letterhead which stated: “We wish to advise that Hughes Demolition Pty Ltd has instructed us to act as their authorised bargaining representatives for the purposes of finalising and registering an enterprise agreement (EBA) with their employees.”
61 At 11.28 am Mr Dwyer forwarded the letter to Mr Darker. The covering email stated: “With a bit of luck this letter attached will resolve our issues.” Mr Darker replied a few minutes later, at 11:34 am, stating, “Hopefully this will close it out”.
62 Mr Dwyer then sent an email to Mr Theodorou at 11.45 am attaching the letter from the MBAV. His email stated: “I am hopeful that this will now resolve any issues regarding ongoing progress and work on site.”
The work stoppage on 19 November 2013
63 In the meantime, earlier in the morning on 19 November 2013, a number of Hughes Demolition employees were scheduled to work on the Site at 7.00 am: Messrs Dunlop, Prowse, Wren and Crew. Although they attended the Site, work was delayed for at least a few hours.
64 At about 6.20 am, Mr Dunlop arrived at the Site and had a conversation with Mr Silvestro. The content of that conversation was disputed. Mr Dunlop’s version was that Mr Silvestro told him the Hughes Demolition employees were unable to start work and that a CFMEU officer would come to talk to them. Mr Silvestro’s version was that Mr Dunlop told him that Mr Seckold had directed the Hughes Demolition employees not to start work.
65 At about 9.00 am, Mr Theodorou arrived at the Site. He met with the Hughes Demolition employees in a shed on the Site and talked with them for about 10 minutes. Mr Dunlop said that he spoke about the EBA and Hughes Demolition. The topic of conversation was disputed.
66 Whether Mr Silvestro knew that Mr Theodorou was coming to the Site that morning was in dispute. He maintained that he was unaware that Mr Theodorou was coming that morning. The Commissioner’s case was that Mr Theodorou was involved in, and had advised, encouraged or incited, Mr Silvestro’s conduct that day.
67 It was common ground that at about 9.00 am that morning Mr Silvestro telephoned Mr Seckold and asked, “What is going on?” or “What’s happening?”. The rest of that conversation was disputed.
68 It was common ground that work was delayed. There was however, a dispute about when it had recommenced. Mr Dunlop recorded a note that day which said that the work resumed at 10.30 am. At trial he could not recall the timing of many of the events.
69 The respondents claimed that work was delayed until about 9.00 am or 9.30 am when the Hughes Demolition employees started unloading their tools to start work. Mr Silvestro’s version of events was that he had gone to have a coffee with Mr Darker at about 8.30 am or 9.00 am for about 20 minutes. When they returned at about 9.30 am the Hughes Demolition employees had already recommenced work.
70 There was also a dispute as to who had directed their return to work. Mr Dunlop said that the direction had come from Mr Silvestro. Mr Silvestro’s evidence was that work had resumed in his absence that morning.
The default on the work programme in November 2013
71 By at least late November 2013, Hughes Demolition was delayed in its work, at least according to the programme set by Harris Interiors. Hughes Demolition disputed the cause and characterisation of the delay and the existence of a set work programme.
THE NON-CONTENTIOUS AND DISPUTED FACTS
72 The foregoing summary discloses a measure of agreement about the following matters:
(1) Two meetings were held on 24 September 2013 and 1 October 2013 between representatives of Harris Interiors and Hughes Demolition. The question of whether Hughes Demolition had an EBA was raised during, at least, the second meeting.
(2) On 15 November 2013, Mr Dwyer had a telephone conversation with Mr Seckold in which the progress of works and the CFMEU’s requests for an EBA were discussed. This was the conversation in which Mr Dwyer was alleged to have made his “threat”.
(3) On 15 November 2013, Mr Darker sent Mr Seckold an email that stated that, if an EBA was not signed, other “fully compliant labour” would need to be sourced and that Harris Interiors would “have no other option” but to “contra charge” Hughes Demolition (Mr Darker’s alleged “threat”).
(4) On the morning of 19 November 2013 work on Site was delayed for a period of time.
(5) In November 2013 Hughes Demolition was behind schedule in its works at least according to the programme set by Harris Interiors.
73 The material facts which remain in dispute are as follows:
(1) Whether, in the meetings in September and October 2013, Hughes Demolition represented that its employees were covered by an enterprise agreement.
(2) Whether, on 23 October 2013, Mr Theodorou said to Mr Seckold that, “as Hughes Demolition is working in the city, it needs to obtain an enterprise agreement with the CFMEU for its employees” (“the first CFMEU representation”).
(3) Whether, in late October 2013, Mr Theodorou or Mr Reardon said to Mr Seckold that, “You work in the city so you have to have an EBA and you should sign this now” (“the second CFMEU representation”).
(4) Whether, on 15 November 2013, Mr Theodorou said to Mr Seckold, “I’m going to make everything very difficult and not let the boys work on the Site” (Mr Theodorou’s alleged “threat”).
(5) Whether, on 15 November 2013, Mr Dwyer said to Mr Seckold: “If you don’t sign the enterprise agreement with the union, then your boys will not be able to work on the site on Tuesday”; that Mr Seckold needed to meet with Mr Theodorou to “sort all this out”; and “If you don’t sign the enterprise agreement they’re going to get other employees that are covered by an enterprise agreement to finish the job and then charge Hughes Demolition for it” (Mr Dwyer’s alleged “threat”).
(6) Whether, on 19 November 2013, the work on Site had been delayed for three and a half hours from 7.00 am to 10.30 am or for a shorter period of time, until about 9.00 am or 9.30 am.
(7) Whether the reason for the delay on 19 November 2013 was because Mr Silvestro prevented the Hughes Demolition employees from performing any work on the Site.
(8) Whether Mr Theodorou advised, encouraged or incited Mr Silvestro to prevent the Hughes Demolition employees from working on the Site on 19 November 2013.
(9) The motivations of the Harris respondents in relation to their alleged threats and actions. In particular, whether they were primarily motivated to avoid delays to the Project or to exert pressure on Hughes Demolition to sign an EBA because it had not done so.
74 It should be noted that, while some of these disputed allegations were denied in the respondents’ defences, defence counsel at trial indicated that they were not seriously in dispute:
(1) In relation to the two CFMEU representations, the respondents’ counsel did not press a challenge to Mr Seckold’s evidence that the words alleged had been spoken by Mr Theodorou and/or (on the second occasion) by Mr Reardon.
(2) In relation to the alleged “threat” by Mr Theodorou, at trial, counsel accepted that the words had been spoken by him.
(3) In relation to the alleged “threat” by Mr Dwyer, in closing submissions his counsel accepted that the conversation relied upon by the Commissioner had occurred.
75 The Commissioner called four witnesses. The following affidavits were read at trial:
(1) two affidavits of Mr Alex Loft sworn on 13 February 2015 and 30 April 2015.
(2) two affidavits of Mr David Seckold affirmed on 13 February 2015 and 12 June 2015.
(3) one affidavit of Mr Warwick Dunlop affirmed on 28 April 2015.
(4) two affidavits of Mr Nicholas Smith affirmed on 12 February 2015 and 29 April 2015.
76 A statement of Mr Seckold’s anticipated oral evidence was also filed prior to trial. All four of the Commissioner’s witnesses were required for cross-examination. The parties also relied upon two exhibits which were tendered at trial:
The Commissioner relied upon Exhibit A1 which was a transcript of a record of an interview conducted by a Fair Work Building Industry Inspector with Mr Seckold on 29 November 2013.
The Harris respondents relied upon Exhibit R1 which was a statement of Mr Seckold of 12 December 2013 provided to Fair Work Building & Construction.
77 The CFMEU and Mr Theodorou did not file any affidavits. They did not call any witnesses. Mr Theodorou relied upon the privilege against self-exposure to a civil penalty.
78 The third to sixth respondents relied upon four witnesses. The following affidavits were read:
(1) one affidavit of Mr Michael Woods affirmed on 16 April 2015.
(2) one affidavit of Mr Shanne Darker affirmed on 16 April 2015.
(3) one affidavit of Mr Jason Dwyer affirmed on 16 April 2015.
(4) two affidavits of Mr Carmelo Silvestro sworn on 16 April 2015 and 12 June 2015.
79 Messrs Darker, Dwyer and Silvestro were required for cross-examination. The Commissioner’s decision, on the eve of the trial, not to require Mr Woods for cross-examination prompted an application for costs, which is considered at [490]-[519] below.
80 The evidence at trial is summarised below in the order in which the witnesses were called.
Mr Alex Loft
81 As mentioned above, Mr Loft was an Estimator employed by Hughes Demolition. The Commissioner called him as a witness. In examination-in-chief Mr Loft adopted both affidavits and the exhibits to the first affidavit. The final sentence in [8] of his first affidavit and [16] of his second affidavit were disallowed on the basis of evidentiary objections.
82 Mr Loft deposed in his first affidavit in relation to the meeting on 24 September 2013:
Meeting on 24 September 2013
18. On 24 September 2013, I attended a meeting with Mr Woods, Shanne Darker (Project Manager, Harris) (Mr Darker), and Carmelo Silvestro (Site Manager, Harris) (Mr Silvestro) at the Site. I do not recall whether Mr Seckold attended the meeting. I was not asked any questions at this meeting by Mr Woods, Mr Darker or Mr Silvestro about whether Hughes had an enterprise bargaining agreement (EBA), or whether it had an EBA that would be compliant with a “national code of practice”.
…
83 He maintained this version of the events of 24 September 2013 in his second affidavit. At [6] he denied that either he or Mr Seckold were asked about an EBA.
84 In relation to the meeting on 1 October 2013, he deposed in his first affidavit as follows:
Meeting on 1 October 2013
22. At approximately 8.00 am on 1 October 2013, I attended a meeting with Mr Woods, Mr Darker and Mr Silvestro from Harris, and Mr Seckold at the Harris’ office in North Melbourne.
23. At the meeting, Mr Woods (predominantly) asked Mr Seckold and I questions about my quotation of the Project. The majority of his questions related to the proposed scope of works, and Hughes’ capacity to do the job, including resourcing (Such as labour and equipment).
24. I recall that at one point, Mr Darker asked Mr Seckold and I whether Hughes had an EBA. I do not recall Mr Darker referring to the “National Code of Practice”.
25. Mr Seckold responded with words to the effect that “Hughes works in accordance with building industry standards and EBA requirements”. Mr Seckold did not say that Hughes was “EBA compliant”.
26. Mr Darker did not respond to Mr Seckold’s answer and moved directly onto the next question. This was the only question asked about having an EBA.
27. There were subsequently a number of further revisions to my quote, in light of changes to the scope of works made by Harris. These were communicated by way of emails
85 In his second affidavit, he challenged the versions of the meeting of 1 October 2013 given Mr Silvestro and Mr Darker. At [6] he denied that he or Mr Seckold said they had a signed EBA or that “we are compliant”.
86 His first affidavit recorded his evidence about the requests for documents by Harris Interiors:
Harris’ request for documents
28. On 1 October 2013, Mr Silvestro sent an email to the Hughes email address to my attention (copying in Mr Darker and Mr Woods) which contained a list of documents that would be required to be submitted to Harris “prior to commencing work on site”. There was no reference to an EBA in the email. …
29. On 9 October 2013, I asked for Fiona to send certain documents to Mr Silvestro. …
30. ln response, Mr Silvestro sent a further email to the Hughes email address to my attention(copying Mr Darker and Mr Woods) which stipulated additional requirements regarding the documents to be provided. There was no reference to an EBA in the email. …
31. Mr Woods also sent an email to the Hughes email address to my attention (copying Mr Darker and Mr Silvestro) which attached a copy of a proposed sub-contract agreement and a “Subcontractor pre-start checklist” document. …
32. On 9 October 2013, Fiona Franchi sent me an email from the Hughes email address to my personal email attaching a document prepared by Harris entitled “Special Conditions to subcontract agreement”. The conditions included that “All works must be fully compliant to current industrial Standards and Building Codes of Australia”. There was no reference to an EBA in this document. …
87 At [33]-[36] he referred to the commencement of work by Hughes Demolition on 10 October 2013 and the email correspondence of 10 and 11 October 2013 about the demolition method statement and safety management plan. He referred to the email of 17 October 2013 from Mr Silvestro and stated that it did not refer to an EBA (at [37]).
88 He said that he signed the subcontract on behalf of Hughes Demolition on 17 October 2013 (at [38]). He deposed to the emails sent by Mr Darker on 22 and 23 October 2013 which he had received (at [39]-[42]). His affidavit continued:
43. On 23 or 24 October I spoke to Mr Seckold in relation to the emails from Mr Darker, and asked him what was happening. He told me words to the effect: “I have it in hand” and said that he was planning to meet with the union on 24 October, and that he would talk to Mr Darker after that meeting. He told me that he would take care of it and accordingly, I did not need to respond.
44. At some point on either 23 or 24 October, Mr Silvestro of Harris said words to the effect of “How are you going with your EBA?” when I attended the Site. I responded with words to the effect of “Dave’s following up, he'll talk to you about it”.
45. On 24 October 2013, I emailed Fiona Franchi and said I had spoken to David on 23 and 24 October about this, and that he had said: “he will advise Harris in respect to EBA after he has met with the union today”. I sent this email to Fiona because she had forwarded the email Mr Darker sent at 10.32am on 22 October 2013 (referred to at paragraph 39 above) to my personal email address earlier that day, and I wanted to let her know what was happening. …
46. I did not have any subsequent email or telephone contact with Mr Darker (or any other employees of Harris) regarding this issue.
89 Mr Loft deposed to the events of 19 November 2013 in his first affidavit:
Stop work on Tuesday 19 November 2013
47. I received a call from Mr Dunlop at some point during the morning of Tuesday 19 November 2413. Mr Dunlop said words to the effect: “We’ve been closed down, and we’re sitting in the sheds. The union has stopped us because we don't have an EBA”. I said words to the effect: “Have you brought David across it?” and Mr Dunlop responded “He’s on his way down”. Our conversation ended.
90 In his second affidavit he disputed the evidence given by the other witnesses. Relevantly, he said:
Phone calls from Mr Darker and Mr Woods
7. I have no recollection of receiving phone calls from Mr Darker as alleged at paragraphs 26 and 30 of the Darker Affidavit.
Allegation about provision of Hughes' EBA
8. I refer to paragraph 36 of the Woods Affidavit. I deny that I ever indicated to Mr Darker that I would send the Hughes EBA to Harris.
Phone calls from Mr Silvestro in late October 2013
9. Paragraphs 40-42 of the Silvestro Affidavit refer to four phone calls that Mr Silvestro allegedly made to me during 28-30 October 2013. I do not specifically recall these conversations. I did have conversations with Silvestro about how many men Hughes would have on site. I disagree that Mr Silvestro or Harris specifically asked Hughes to work on Saturdays or to allocate more labour to the Site during late October 2013.
19 November 2013
10. Paragraph 47 of the Darker Affidavit alleges that Mr Darker tried to call me on 19 November 2013 but that I did not answer my phone. I do not recall having a missed call from Mr Darker on 19 November 2013. I did not receive a message from Mr Darker in my phone message bank on 19 November 2013.
91 His second affidavit also contained answering evidence to the allegation of the Harris respondents that Hughes Demolition had fallen behind in its “programme of works” for the Project in November 2013: at [11]-[15] and [17]-[22] he denied this was so. He said that Harris Interiors had never provided any written or verbal “programme of works” to Hughes Demolition (at [13]). He accepted that “there were some delays on the Site” but said that these “were not the fault of Hughes” (at [14]).
92 In his second affidavit he refuted Mr Silvestro’s evidence about a conversation about needing more men:
19. The Silvestro Affidavit specifically alleges at paragaph 46-48 that Mr Silvestro had telephone conversations with me on 8 November 2013 about Hughes needing more staff on site, needing to work Saturdays and about bin organisation, and on 15 November 2013 about Hughes “falling behind the program of works, as well as about sourcing additional labour and working Saturdays’.
20. I have no specific recollection about these conversations. It is possible that Mr Silvestro and I had phone conversations about bin organisation on 8 November 2013.
…
22. I disagree that I would have spoken to Mr Silvestro on 8 and 15 November 2013 about sourcing additional labour or working Saturdays. I do not recall such conversations. If Mr Silvestro had tried to discuss these issues with me, I would have told him immediately to speak to Mr Seckold (since he was responsible for resourcing the Project).
The cross-examination of Mr Loft
93 In cross-examination by counsel for the Harris respondents, Mr Loft was tested on his recollection of the meeting on 24 September 2013. When asked whether his recollection was not very strong, he said, “Yes and no. I know we went over the scope of work.” He believed that Mr Seckold did not attend. He was challenged on his recollection that no questions were asked about whether Hughes had an enterprise agreement. He maintained that his recollection was not mistaken and that he was not telling an untruth. He disagreed with Mr Silvestro’s evidence that either Mr Woods or Mr Darker asked him (Mr Loft) whether Hughes Demolition was EBA compliant. To the extent that the evidence of Messrs Wood, Silvestro and Darker was different, he maintained that he preferred his recollection.
94 When it was put to him directly that Mr Silvestro’s evidence was that either Mr Woods or Mr Darker had asked him whether Hughes Demolition was EBA compliant, he stated, “I disagree.” He also disagreed with Mr Silvestro’s evidence that he had said words to the effect of, “We are EBA compliant”. He did not recall that. When asked whether he simply did not recall and that he was “not of a clear recollection that it was not discussed”, he said, “I don’t know”. He later said that there was “no mention” of the EBA in this meeting.
95 In relation to Mr Silvestro’s note made after the meeting on 24 September 2013 which recorded “Spoke to Alex Loft and asked us to send full documentation. He is EBA Compliant”, he said: “I didn’t say it, full stop.” He said, “I don’t know why he wrote it there because I never mentioned that and it was a later email that requested full documentation.”
96 He was also asked about the meeting on 1 October 2013. He recalled that, at that meeting, the question of whether Hughes Demolition had an EBA was asked by Mr Darker. Mr Seckold had responded to the question. He agreed that Mr Seckold had indicated that Hughes Demolition worked in accordance with building industry standards and EBA requirements, but that Mr Seckold had not said that Hughes Demolition was EBA compliant. He did not agree that saying that Hughes “works in accordance with EBA requirements” meant the same thing as being “EBA compliant”. He considered that “EBA compliant” meant that an EBA had been signed. Mr Seckold had not said that Hughes Demolition had an EBA but had rather said that they work in accordance with all regulations and standards.
97 Mr Loft was also cross-examined by counsel for Mr Theodorou and the CFMEU, who asked him about a document which was a copy of the email sent by Mr Woods to the Hughes Demolition’s email address marked to his attention on 9 October 2013. That email stated that “[h]ard copies will also need to be brought to the site on the date of your start” and there was a reference to an “EBA”. Counsel asked him if he recalled reading this document when he received it. Mr Loft replied that he had and that he had no doubt at all about it.
98 When asked why he had not done as the email instructed and brought a copy of the EBA to the Site, he stated that he did not make the decision not to do so. Rather, “[t]hat was something that David [Seckold] was following up.” Mr Seckold had read the contract, the same as he did, and he said, “Go ahead and sign it”. Mr Loft said that he would have discussed the document with Mr Seckold but could not recall specifically whether the EBA came up.
99 When asked by counsel whether he understood from reading the document that the EBA was one of the documents he needed to bring to the Site, he said that he could not believe that he missed that. When counsel pointed out that his evidence differed from that in his affidavit at [37] where he had stated, “There was no reference to the EBA in the email”, he stated that he could not recall these points coming up when he prepared his affidavit, even though the email was annexed to his affidavit.
100 He was also asked about whether he had any understanding at the time of these events why it might be important to Harris Interiors that Hughes Demolition have an enterprise agreement. He replied that he did not. He did not think it was important and nor was he aware of the provisions of the Act which concerned the way in which it worked, including in relation to protected industrial action.
101 Mr Loft was not cross-examined about his evidence of the events of 19 November 2013.
102 He was not re-examined.
Mr David Seckold
103 Mr Seckold was the Director of Hughes Demolition. He was called as a witness by the Commissioner. He adopted his two affidavits in examination-in-chief. Paragraph [13] of his first affidavit was not read. Part of [39] and the whole of [103] of his first affidavit were disallowed due to evidentiary objections. There were no evidentiary objections to his second affidavit.
104 Speaking of the meeting on 1 October 2013, Mr Seckold deposed as follows in his first affidavit:
Meetings prior to Hughes commencing the work
15. On 1 October 2013, Mr Loft and I had a meeting with Harris in their offices in North Melbourne to review the tender documents and the proposed contract. Harris had a number of representatives at this meeting — Shanne Darker (Mr Darker) (the Project Manager), Carmelo Silvestro (Mr Silvestro) (the Site Manager), Jason Dwyer (Mr Dwyer) (the Operations Manager) and Michael Woods (Mr Woods) (the Contract Administrator and Project Co-ordinator). This was the first time I had met any of these representatives from Harris in relation to the Project.
16. Mr Loft had been estimating the job and was the one corresponding with Harris prior to the 1 October meeting. I attended the meeting because it had come to the point where Harris was going to allocate the job to a demolition company. Mr Loft was generally answering the questions in the meeting.
17. During this meeting Harris had a list of items they wanted to check off with Hughes. The list contained around 10 to 15 points, some of which took around 10 minutes to discuss. I was not given a copy of this list. I cannot recall all the points on the list but it was basically a run through of the scope of works and the job generally. There was a question on the list about an EBA.
18. Mr Loft and I were asked by someone from Harris (I do not recall who) if Hughes had an EBA. I do not remember whether Mr Loft responded, but the representatives from Harris then looked at me. I said words to the effect: “No we don’t have an EBA”. To the best of my recollection I then said words to the effect: “We are compliant with the Code and industry standards and requirements”. I did not say that Hughes was “EBA compliant”.
19. The representatives from Harris did not ask any follow up questions in relation to an EBA. They did not ask whether Hughes had an EBA that would be compliant with the National Code of Practice. We moved straight to the next topic. This was in contrast to other (non-EBA) questions that were asked in the meeting, in respect of which Harris asked follow up questions to Mr Loft and l. Hughes was not asked in this meeting for a copy of or any proof that we had an EBA.
105 In relation to the first and second CFMEU representations, he said in his first affidavit:
CFMEU demand for an EBA
36. Sometime after receiving these emails from Mr Darker [on 22 and 23 October 2013], I was contacted by Theo Theodorou (Mr Theodorou) from the CFMEU by telephone. I do not remember what date Mr Theodorou contacted me. Mr Theodorou said to me words to the effect that “because Hughes was working in the city, you need to obtain a CFMEU EBA for your employees”. He asked me to come in for a meeting with him at the CFMEU offices on Swanston Street in the city.
37. I agreed to attend the meeting so that I could find out what was going on in relation to Harris' request for an EBA, and because I wanted to diffuse the situation where the CFMEU and Harris were both putting pressure on me about an EBA.
38. The meeting took place at the CFMEU office in late October 2013. The meeting was attended by me, Mr Theodorou, and Shaun Reardon (Mr Reardon) from the CFMEU and went for approximately 45 minutes. I knew Mr Theodorou and Mr Reardon's full names, and that they were CFMEU employees, because they provided me with their business cards in this meeting. …
39. During my meeting with Mr Theodorou and Mr Reardon, Mr Reardon did a lot of the talking. He said words to the effect: “You work in the city so you have to have an EBA and you should sign this now”. … Mr Theodorou also said that I needed to sign the EBA. I said: “I am not signing anything now and I at least need a copy of the EBA”. Either Mr Theodorou or Mr Reardon (l do not remember who) gave me a copy of the EBA they wanted me to sign. Mr Theodorou explained the basics of the EBA in relation to employees' entitlements, such as a 36 hour week, the pay rates, RDOs, and CBUS, Incolink, and Co-Invest entitlements. Mr Theodorou did not explain anything about an employer's responsibilties under the EBA (such as the CFMEU being able to come in at any time to look at your books and check your payments to employees). He did not explain to me the process for making an EBA with employees.
106 In examination-in-chief he was asked about the words “You work in the city so you should have an EBA and you should sign his now”:
And what tone did he use when he said that to you? --- I believe that it was – he was – say – he was using his authority to get his point across.
And in what way do you think he was doing that, Mr Seckold? --- In – just in the way that his actions were, the way that he was talking.
And how did that make you feel abou the words that were being said to you … --- I felt it didn’t give me any other options at the time. I was trapped in the sense that I had to – you know, had to do it there and then and I wasn’t – that wasn’t what I wanted to do.
107 His affidavit continued:
40. The EBA was a very large document, about 78 pages. I asked Mr Theodorou to leave it with me as I needed an opportunity to read it. I informed Mr Theodorou and Mr Reardon that I was not going to sign it that day because I needed to know what impact it would have on my business and I needed my accountant to look at it. I told Mr Theodorou I would get back to him. I did not tell Mr Theodorou or Mr Reardon that I was going to sign the EBA they had provided me with. I cannot recall what Mr Theodorou and Mr Reardon said in response.
41. Following the meeting, I sent the EBA to my accountant so that I could get some idea of the impact it would have on my business, including in relation to the Project, if Hughes signed up to the EBA. My accountant rang me a few times over the following days and we read through sections of the EBA together. The rates of pay in the CFMEU EBA were higher than the rates I was paying Hughes’ employees. I was extremely concerned about the impact that signing an EBA would have on my business, because I knew that Mr Loft had quoted for the Project using the rates of pay my employees were currently receiving (which were at or above Award rates), and I worried about the cost of the additional wages. In addition, all of Hughes' other jobs had been quoted for on the basis of paying employees their current rates of pay, not the EBA rates and entitlements.
42. Following my meeting with the CFMEU in later October every time I went on Site, as soon as Mr Silvestro saw me, he would ask me how I was going with the union and whether I had signed the EBA. He would ask: “Oh how ya going with the union? What's happening?”. Further, Mr Dwyer called me every couple of days to check up on what was going on with the EBA. I felt a lot of pressure during this time to sign the EBA.
43. I also felt a lot of pressure from Mr Theodorou to sign the EBA during this time. Mr Theodorou would ring me repeatedly during working hours and I wouldn't answer, and then I might ring him back later. I had saved Mr Theodorou's number in my phone under his name so I would know when he was calling me. In this manner, Mr Theodorou and I would talk probably twice a week on the phone, and during these conversations Mr Theodorou would ask me when the EBA was going to be finalised and ask: “How’s it going? What's happening?” He said on one occasion: “Look, we're letting you work in the city, you've got to get this issue sorted out.”
44. Neither Mr Theodorou, Mr Silvestro or Mr Dwyer ever asked me what I thought about signing the EBA. They just said that Hughes needed to get an EBA.
45. At this stage, if it hadn't been for the requests and demands made on me by the CFMEU on one side, and Harris on the other, I never would have considered signing an EBA for Hughes. After working through the impact the EBA would have on the Kathleen Syme Project, my accountant told me that signing the EBA would add approximately $26,000 to the job (which was quoted for just $105,730 (plus GST) in total). The additional cost was mostly because we did not pay the hourly rate that the EBA would have required us to pay. Our foreman (Mr Dunlop) was paid at just below the EBA rates. The other four Hughes’ employees working on the job were paid above the Award rate, with some of them receiving about $33 an hour. However, these employees still did not receive the same hourly rates as under the EBA, or the other benefits provided for in the EBA - for example, the redundancy contribution. Once I knew the additional cost involved, it was clear to me that the EBA was never going to work for Hughes, because the quote for the Project (including labour) was prepared on a very tight margin.
46. During one of my phone calls with Mr Theodorou in or around late October 2013, Mr Theodorou gave me a deadline by which I was supposed to sign the EBA, which was Thursday 14 November 2013. He told me to meet him on 14 November 2013 at the CFMEU offices.
47. At 4.00pm on 14 November 2013, I called Mr Theodorou and told him that I wouldn't be able to make the meeting as I was tied up. I did not want to tell him that I was not going to sign the EBA, because I did not know how he would react and I was concerned about possible implications on the Project for Hughes. He asked me when I could come in to sign the EBA. I told him I would come in to the CFMEU office in the city the next day, Friday 15 November 2013. However, I did not intend to actually attend this meeting. I just said this so I did not have to continue speaking with Mr Theodorou.
108 His evidence about Mr Theodorou’s alleged “threat” was as follows:
Friday 15 November 2013: telephone conversations with Mr Theodorou
48. On Friday, 15 November 2013, I telephoned Mr Theodorou around 8.30 am and told him that I would struggle to make our meeting that day, but there was nothing I could do. Mr Theodorou responded by saying words to the effect of: “You were supposed to come in on Thursday [14 November 2013] [need to explain why call made] and sign the EBA. Now it's Friday [15 November 2013] and you still haven't signed it.” I do not recall what I said in response. The conversation ended.
49. Around 12.30 pm on 15 November 2013, Mr Theodorou called me and asked me when I would be coming in. I told him that I was struggling with the decision as implementing the EBA would not work out well for Hughes. I do not remember exactly what Mr Theodorou's response was, but he was annoyed and said words to the effect of “you've wasted my time”. I said I would speak to him later and the conversation ended.
…
57. Mr Theodorou rang me repeatedly between 12.30 pm and 3.15 pm later that day. I did not answer. At around 3.30 pm I called Mr Theodorou and he did not answer. However, shortly after this, Mr Theodorou returned my call. The conversation was heated and went as follows:
a. I said: “l am not in a position to sign the EBA at the moment.”
b. Mr Theodorou said: “You are making it hard for me; saying you would come in to sign and then not coming in.”
c. I said: “You are the one making it difficult. I'm trying to work through this the best that I can. It's a big impact on my business. lf I've signed the EBA then I need to be compensated because I don't see why I should be out of pocket - I didn't quote on the EBA rate”.
d. Mr Theodorou said: “Once you sign the EBA, I will then be in a position where we could go to Harris and speak to them about compensation.”
e. I said: “Financially, I’m not able to sign the EBA right now.”
f. Mr Theodorou said: “l am going to make everything very difficult and not let the boys work on the Site”
g. I said: “I’ve had enough of all this and I am doing my best.”
58. I hung up on Mr Theodorou at this point in the conversation.
109 At [51]-[55] he referred to calling the MBAV and asking Mr Smith for advice.
110 He gave the following evidence about Mr Dwyer’s alleged “threat” on 15 November 2013:
59. After my conversation with Mr Theodorou, Mr Dwyer called me shortly after.
60. Mr Dwyer said to me words to the effect: “If you don't sign the EBA with the union, then your boys would not be able to work on the Site on Tuesday. You need to meet up with Mr Theodorou to sort this all out as he has ‘hit the roof'.’” Mr Dwyer then said that if Hughes did not sign the EBA by the next Monday (which was scheduled as a rostered day off), Harris was going to get other employees covered by an EBA to finish the job and then charge Hughes for it.
61. I said to Mr Dwyer: “lf you don't want my boys there on the Tuesday, then you will have to provide me with something in writing saying that they are not required to work. lf I don't receive anything from Harris I will send my boys to start work on Tuesday at 7.00 am in accordance with our contract.” I did not receive anything in writing from Mr Dwyer.
62. I felt as though Mr Dwyer was giving me no choice but to sign the EBA so that Hughes could finish the job.
111 In his affidavit, Mr Seckold disputed Mr Dwyer’s version of events:
63. Sub-paragraphs 43(b)(1)-(2) of the Defence of the Third to Sixth Respondents dated 17 October 2014 (Defence) allege that Mr Dwyer said words to me during the telephone conversation referred to above to the effect that:
a. ‘Theodorou considered Seckold had been avoiding meetings with him and appeared frustrated with a lack of progress by Hughes Demolition in its enterprise negotiations’;
b. ‘Hughes Demolition should deal with its enterprise agreement negotiations with [the CFMEU] in a way that would not affect the site programme of works even if this meant moving its employees to work on another site and bringing in labour hire.’
Mr Dwyer did not say either of these things, or any words to this effect, during our conversation on 15 November 2013.
64. Sub-paragraphs 43(b)(3)-(4) of the Defence further allege that Mr Dwyer said words to me during our conversation on 15 November 2013 to the effect that:
a. ‘Hughes Demolition was already behind in its programme of works and [Mr Dwyer] could identify other labour hire providers for Hughes Demolition to rectify this’; and
b. ‘lf Hughes Demolition failed to keep to the programme of works [Harris] could obtain other labour to complete the Works and back charge Hughes Demolition under the Demolition Contract.’
Mr Dwyer did not say any words to this effect during our call on 15 November 2013.
65. It is possible that I had a conversation with Mr Dwyer at another time, in which he said words to the effect of those set out in paragraph 64 above.
66. Sub-paragraph 43(c) of the Defence alleges that during my conversation on 15 November 2013 with Mr Dwyer in response to my comment that ‘if you don't want my employees to work next Tuesday then you need to provide something in writing’ he said:
a. words to the effect 'you are not going to get that instruction from me - you have to attend for work and keep to the programme of works under your contract'; and
b. ‘[Harris Interiors] at all relevant times required Hughes Demolition to attend for and complete scheduled works including on 19 November 2013.’
Mr Dwyer did not say these words, or any words to this effect, during our conversation.
112 At [67] he referred to calling Mr Smith and telling him about the conversation with Mr Dwyer. Mr Smith said that Harris Interiors cannot prevent Hughes Demolition from working on the Site because it did not have an EBA,
113 His evidence about Mr Darker’s “threat” of 15 November 2013 was as follows:
69. At 5.32 pm later that day, Mr Darker sent an email to the Hughes email address addressed to me requesting an update by “Monday midday” (being 18 November 2013) on my progress with Mr Theodorou and signing up to an EBA. His email also stated: “If this cannot be achieved then additional sourced or fully compliant labour will be required to be sourced by Tuesday onsite, as this project must be kept moving”. I did not respond to Mr Darker’s email. …
114 At [73] he referred to sending an email to Mr Dwyer outlining the financial impact upon Hughes Demolition if it were to sign the EBA and that it had engaged the MBAV to negotiate. At [74] he referred to a conversation he had had with Mr Dwyer about that email in which he said Mr Dwyer got angry about his intimation that he would need more money. At [75] he deposed to a conversation he had with Mr Smith from the MBAV after sending the email. At [77] he denied that Hughes Demolition had ever negotiated with the CFMEU:
77. Paragraph 44A of the Defence alleges that on 18 November 2A13 Hughes ceased to undertake enterprise agreement negotiations with the CFMEU directly and appointed MBAV as its bargaining representative. I deny that Hughes Demolition was ever negotiating with the CFMEU in relation to an enterprise agreement. Though some aspects of the CFMEU EBA were explained to me during the meeting I had with Mr Theodorou and Mr Reardon in late October 2A13, as described above, I did not have any discussions or negotiations with the CFMEU about the contents of the EBA, or specific provisions or parts of the EBA.
115 His evidence as to the events of 19 November 2013 was as follows:
Tuesday 19 November 2013: Hughes’ employees are prevented from working on the Site
78. On Tuesday 19 November 2013 around 6:50 am, I received a call from my foreman, Mr Dunlop, who was on the Site. Mr Dunlop said “What's going on, I have been told by Mr Silvestro that we are not allowed to unload the ute or start work this morning. Mr Silvestro told me that he was waiting for a phone call.” Mr Dunlop sounded very surprised about what was going on. Mr Dunlop and Hughes employees would usually unload tools (those that did not remain on the Site overnight) from the ute in the morning. I said to Mr Dunlop: “Stay on the Site and I will be back in touch with you and the boys once I have made some enquiries.”
79. …
80. At around 8.00 am, I spoke with Mr Dunlop again. I do not remember who called who. Mr Dunlop said: “Me and the boys are sitting in the lunch sheds”. I said: “Sit tight for now and whatever you do, don't leave the Site, I don't want anyone going home, I don't care what Mr Silvestro or anyone else says, I don't want you to leave the site. Make sure that no one leave”.
81. …
82. At around 8.40 am, I spoke with Mr Dunlop again. I do not remember who called who. Mr Dunlop said: “There is nothing else happening and we are still sitting in the lunch sheds”. I said: “Good, bear with me, I am still making some enquiries to see where we are at and I will be in touch with you”.
83. At around 9.00 am, I received a call from Mr Silvestro. Mr Silvestro said: “What's happening?” I said “I am not sure what's happening, the blokes aren't allowed to work, you have stopped them from working”. Mr Silvestro said: “You need to speak to Mr Theodorou from the union”. I said: “l don't need to speak to Mr Theodorou and I have no intention of speaking with Mr Theodorou”. Mr Silvestro said: “You need to sort out what’s happening with the union”. I said: “You are acting illegally”. I do not remember whether anything else was said. The conversation then ended.
84. Just after my conversation with Mr Silvestro, I spoke with Mr Dunlop again. I cannot remember who called who. Mr Dunlop said: “Me and the boys are still sitting in the lunch sheds playing board games”. I said: “Just sit tight, I know you are probably getting a bit anxious but just sit tight and I am on it and doing what I can”.
85. …
86. To the best of my recollection, Mr Dwyer rang me at some point before my guys went back to work on Tuesday, 19 November 2013. During our conversation, I said: “Mate, you know you're in breach of the construction industry regulations.” I said this because, based on the information I had received from Mr Smith of MBA, I knew that it was against the law for the Hughes employees to be prevented from working. However, I do not recollect anything else about our call.
87. At around 10.15 am, I received a call from Mr Smith of MBA to say that he had spoken with Mr Dwyer from Harris earlier that day. Mr Smith said: “l have given them the same information and literature that I provided to you”. I told Mr Smith what had happened on the Site that morning and I confirmed that I had contacted FWBC. Mr Smith said: “You can contact me if you have any further questions”.
88. Shortly after the call from Mr Smith, I received a phone call from Mr Dunlop and he said it was “game on” and the boys were allowed to go back to work on the Site. I am not aware of who had told Mr Dunlop that the Hughes employees could go back to work. I said to Mr Dunlop that the FWBC were on their way down. Mr Dunlop did not say anything about what had happened or why they were allowed back to work.
89. I did not attend the Site on Tuesday, 19 November 2013 at any stage, and I did not receive any contact from Mr Theodorou, or any further contact from any employee of Harris that day.
90. I did not make file notes about any of my conversations during the day, or about anything that happened on the day.
91. I received a copy of the one page report headed ‘Tool Box Meeting’ in relation to the tool box meeting held by Mr Dunlop on the Site on 19 November 2013. Hughes uses tool box meeting reports mostly for OH&S purposes, and to ensure that we have records of what has been discussed during the tool box meetings. My understanding is that Mr Dunlop would complete this report each day about the tool box meeting that had been held that morning, using the template document provided by Hughes. Each 'Tool Box Meeting' report was dated and noted the name of the site, the name of the person who conducted the meeting, and noted other issues about the day's work such as delays, deliveries, and safety issues. In the ‘Tool Box Meeting’ report for 19 November 2013, under the heading ‘Agreed actions’, Mr Dunlop has written: “STOPPED by union problems about EBI Camilio informed don't start work until told otherwise. Union rep came spoke to us explained what is happening. Camilio told us able to start work 10.30”. …
92. I have also seen the Daily Job Report for the Site for 19 November 2013, which was completed and signed by Mr Dunlop. Mr Dunlop, as Site Foreman, would complete a Daily Job Report each day using a template provided by Hughes. Hughes has its Site Foreman on any job fill out a Daily Job Report each day that Hughes is on site to record the important things that have happened that day, and to make sure that if we need to know something that happened on site down the track, we can refer to the Daily Job Report. The report had space for important details about the day's work to be recorded, such as details about the site, date, weather, start time and finish times for Hughes, employees who had worked for Hughes that day, machinery used and equipment hired. There is also space for comments at the bottom of the report. Under the comments heading of the Daily Job Report for 19 November 2013, Mr Dunlop has written: “No work shut down by union problems about E.B.A. Camilio informed us not to start work until told otherwise. Union rep came down explained what is happening. Camilio told us able to start work 10.30”. ...
116 At [93] he deposed to the effect of the work stoppages on Hughes Demolition:
93. The impact of Hughes’ employees being required to stop work during the morning of Tuesday, 19 November 2013 is that Hughes lost around four hours of work per employee on the Site. Normally the employees arrive on Site at 6.30-6.40am and then get their tools out and start work at 7.00am. However, at 10.30am on 19 November 2013, my employees still had to then go and get their tools (both the tools that had stayed on Site overnight, and the more expensive tools that had to be unloaded from the ute) before they could commence work. I know this because the Hughes employees told me later on what had happened. This meant they started working at about 10.50am and amounts to just under four hours of lost time per Hughes employee. Losing the first four hours of the day for Hughes meant that we lost our most productive time of the day (which is the morning), so in practice amounted to more than half a day of lost work. lt meant that the work we were scheduled to carry out that day on Site could not be completed, which pushed out our other scheduled work. This impacts Hughes financially, because we had quoted for the job on the basis of a very tight profit margin, and any additional days that the Hughes' employees need to spend on Site is a cost that Hughes needs to cover.
117 His evidence on the aftermath of the work stoppage was as follows:
Wednesday, 20 November 2013
97. At some stage during the morning of Wednesday, 20 November 2013, Mr Dwyer called me on the telephone. Mr Dwyer said that Harris was unhappy that it was being investigated. He did not say by who. I said to him: “I feel like I was put into a position that no one should be put into and that's what has triggered all of this”. I said: “You and Theo Theodorou tried to bully me into a position where I had no other options and I sourced other information which put me in a different position”. I do not remember whether, or how, Mr Dwyer responded to this allegation.
98. Mr Dwyer then said “I am not happy with the circumstances and the fact this is now an issue”. I said to Mr Dwyer: “I will be very disappointed if the wrong person gets the blame for this all happening such as Mr Silvestro”. Mr Dwyer did not acknowledge that the stop work was his fault, or anyone's in particular, however I recollect that either Mr Dwyer or I said that the incident the day before “wasn't handled in the best way” and the other person agreed.
99. During our conversation, Mr Dwyer did not ask about the status of Hughes’ EBA at all, or whether the CFMEU had contacted us.
118 He gave the following evidence about a conversation which he had with Mr Silvestro the day after the work stoppage:
100. At about 10.30-11am on Wednesday, 20 November 2013, after my conversation with Mr Dwyer, I had a discussion with Mr Silvestro on the Site as he requested to speak with me in his office. Mr Silvestro said words to the effect that I was “implicating him”. He was very angry. I said: “But it was you, you did it, maybe you didn't make the decision but it was you who told the boys to stop work”. He said: “I didn't tell them that they [meaning Hughes' employees l couldn't work here”. I said: “Well who told them?" Mr Silvestro said: 'Well I didn't tell them". I said: "If you didn't tell them who told them?" Mr Silvestro said: "l didn't say they couldn't work, l just told them that I was waiting for a call".
101. I said: Carmelo [Mr Silvestro], facts are facts, if the instruction to have Hughes' employees stop work came from someone else don't blame me for it. Blame your bosses for it because at the end of the day I'm not the one that told you to tell the blokes to stop".
102. Our conversation was heated and Mr Silvestro appeared to almost be in tears. Mr Silvestro said that he would sue and take legal action, and that Mr Dunlop had told the Hughes employees to sit in the sheds. I said to Mr Silvestro that Mr Dunlop might have said “sit in the sheds” but that he did not say the Hughes employees could not work on the Site.
119 At [104] he deposed that he had no contact from Mr Theodorou or the CFMEU after 20 November 2013. Hughes Demolition left the Site permanently in January 2014 (at [105]).
120 In his reply affidavit Mr Seckold largely reiterated his evidence above and denied the contrary versions of events appearing in the other affidavits. Speaking of his telephone conversation with Mr Theodorou in October 2013 in which Mr Theodorou said, “because Hughes was working in the city, you need to obtain a CFMEU EBA for your employees”, he said:
5. I relied on the truth of Mr Theodorou's statement during our phone conversation and took what he said to me seriously for the reasons set out below.
6. Prior to Mr Theodorou's statement to me, I had never had a representative from the CFMEU personally ring me and inform me that Hughes needed to obtain an EBA, or ask that I attend a meeting at the CFMEU offices in the city. I had previously been told by my workers that the CFMEU had made similar comments to them at a job in Ascot Vale. Also, a CFMEU official (I do not recall who) had said something similar to me in person at a site in Footscray. The work Hughes had performed prior to the Project was never as close to the city as Carlton.
7. I knew Mr Theodorou was from the CFMEU and so assumed that he knew about the requirements for EBAs, including when and in what circumstances Hughes would need to have a CFMEU EBA. Mr Theodorou spoke with authority during the call and it was clear to me that he was not joking about what he was saying. I took Mr Theodorou at his word when he said that Hughes would be required to have a CFMEU EBA to continue work in the city.
8. I have never negotiated an EBA before. I am a member of, and have been on the board of the Demolition Association, for approximately three to four years. However, this was not an industrial position and I had never had any training on how to handle EBA issues, prior to speaking with the MBA on 15 November 2013 about the issue.
121 He also deposed, in his reply affidavit, that Hughes Demolition had not fallen behind in its programme of works.
The cross-examination of Mr Seckold
122 In relation to the meeting of 1 October 2013, he admitted that he did not have a good recollection of it. He did not recall using the word “Code” during the meeting.
123 In relation to the first day of work on the Site, on 10 October 2013, he confirmed that, after handing over the folder of documents, which did not contain an EBA, Hughes was allowed to start work.
124 In relation to the two alleged CFMEU representations he admitted that he knew that the officers were from that union and that the union was an employee organisation which looked after its members. He agreed that they wanted him to sign a “CFMEU EBA”. He said that he did not rely on the representations.
125 He admitted that he spoke to Mr Silvestro about three or four times in October and November 2013 about the progress of his attempts to arrange an EBA. He had told Mr Silvestro that he had spoken to the union and about Mr Silvestro’s desire for the Project to proceed and not be disrupted.
126 Mr Seckold agreed that, by late November 2013, Hughes Demolition was about two weeks behind where the work should have been according to the program set by Harris Interiors. He could not say exactly how long the delay was but he agreed that nobody was disputing the fact that there was a delay. He agreed that a reason for the delay, suggested by Harris Interiors, was that Hughes Demolition had not provided adequate staff to undertake the demolition works, at least in accordance with Harris Interiors’ programme.
127 He first confirmed that Mr Dwyer had not provided him with anything in writing about Hughes Demolition’s employees not working on 19 November 2013. He later stated that he “actually believe[d] that ... there is an email that was sent from Harris”. He accepted that there was nothing else in writing apart from the purported email which was not produced.
128 Mr Seckold accepted that he had an incomplete memory of his conversation with Mr Dwyer on 15 November 2013. He agreed that his affidavit at [61] and Mr Dwyer’s affidavit at [29] refer to his requirement that any direction from Hughes Demolition not to work on 19 November 2013 had to be in writing.
129 It was put to him that that he had instructed his employees not to start work on the morning of 19 November 2013. This was denied. He accepted that, despite his impression that Harris Interiors might prevent Hughes Demolition from working on site, nobody from Harris Interiors ever told him that they could not work on site if they did not have an EBA. In re-examination, however, he reiterated that his memory of his conversation with Mr Dwyer on 15 November 2013 was correct and that Mr Dwyer had said to him that Hughes Demolition would not be allowed to work on the following Tuesday if there was not an agreement in place.
130 He agreed that he was unhappy at being charged for the extra labour that was ultimately to be used to finish the job on the Site.
Mr Warwick Dunlop
131 Mr Dunlop was another of the Commissioner’s witnesses. He was the Site Foreman for Hughes Demolition. In examination-in-chief, Mr Dunlop adopted his affidavit and its two exhibits without any evidentiary objections.
132 Mr Dunlop gave evidence about his practice of conducting a tool box meeting every morning with the Hughes Demolition employees at the project Site. Mr Silvestro normally attended such meetings as did some occupational health and safety representatives employed by Harris Interiors.
133 He said that there was a morning tea break at the Site every day which occurred at about 9.30 am.
134 Prior to 19 November 2013 Mr Dunlop was generally aware, as a result of things told to him by Messrs Seckold and Silvestro, that Mr Seckold was holding discussions with the CFMEU relating to an enterprise bargaining agreement. He was not, however, privy to the detail of those discussions.
135 He then deposed as to the events of 19 November 2013:
Tuesday, 19 November 2013
12. The Hughes employees working on the Site on 19 November 2013 were Matt Crew, Grant Prowse, Ashley Wren (the “boys”) and myself.
13. We arrived at the Site around 6:20 am, and were about the head to the Site sheds prior to starting work. I asked Carmelo whether we could start work. This was a question I usually asked in the morning because at the time there were drillers and plumbers on site.
136 He explained that this was something he “[a]lways asked because sometimes we’ve got to shuffle our work zones around other trades.” When asked why that was, he stated, “Well, just the nature of our job, danger of our job.”
137 His affidavit continued:
14. Carmelo said to me that Hughes would not be able to start work yet. Carmelo then said words to the effect of: “Tell the boys to hang around until we can get further notice that we can start work”. At this time the Hughes employees and I were just outside the Site sheds. I asked him why we couldn’t start work and he said: “We’ve got a union bloke coming to have a site meeting.”
15. I asked Carmelo if we should unload the tools or not. I cannot remember how he responded. I said something like, “Oh will we just sit tight?”. I told the boys to go and get the expensive tools and bring them on to the Site. I also said to them: “We are not allowed to work, I’ll call Dave and see what the story is”.
16. I then rang Alex Loft, the estimator for Hughes, and told him what had happened. Alex said to me: “Wait there”.
17. I then rang Dave to clarify what was going on, because I was not sure why we were being stopped from working. Dave said to me to get the boys to sit tight in the Site shed and got to the meeting with the union representative, and that the boys were not to walk off Site as he would work it out and get back to me. Following this conversation, I told the boys to go and sit in the Site shed.
18. I do not remember whether I spoke with Carmelo after I had spoken to Dave.
19. …
20. I did ask Carmelo whether we should unload the tools off the ute, because Hughes took expensive tools off the Site each night. I asked this after Carmelo had said that Hughes couldn’t start work.
21. I do not recall Carmelo asking: “Why did you take your tools off site? You have always locked them on site”, but it is possible he said this.
22. I do not remember Carmelo asking: “Why are you asking me if you’re allowed to unload your ute and start working?”.
138 Mr Dunlop then turned to the attendance of Mr Theodorou at the site and its aftermath:
Meeting with CFMEU representative
23. The union representative arrived at the site around 9.00 am. His name was Theo. I do not know his last name. I had seen Theo in and out of the Site before but not spoken with him myself. When he arrived all the Hughes employees were sitting in the Site shed. We were just chatting, passing the time. Theo came into the Site sheds and introduced himself. This is why I know his first name and why I know that he was from the CFMEU.
24. Theo spoke for about 10 minutes. He said that Dave was joining the EBA and they were just trying to get him to sign up and sort out the final details. Theo said that he wanted to explain to us the final process.
25. After Theo finished speaking, we were told to just sit tight and wait for a while, so we waited in the Site sheds.
26. At about 10.30 am, Carmelo came into the Site sheds and said to me: “It’s all good, everything has been cleared and I have been instructed that you can carry on with your work”.
27. I told the boys that we could get back into it and they went to get Hughes’ equipment. Around 10.30 am we started back to work on the Site.
28. Once we were told we could return to work, I rang Dave and Alex Loft and told them we were back working.
29. I completed a “Tool Box Meeting” report for the Site on 19 November 2013. This is a record I keep on a regular basis of things discussed at tool box meetings.
30. I completed a daily job report for the Site on 19 November 2013. This is a record I keep on a daily basis of work done on a site and events that occur on a site.
139 A copy of the “Tool Box Meeting” report was annexed to his affidavit. Relevantly, it provided as follows:
AGREED ACTIONS: STOPPED By union problems about E.B.A. Carmilio [sic] informed don’t start work until told otherwise. Union rep came spoke to us explained what is happening. Carmilio [sic] told us able to start work 10.30.
140 A copy of the Daily Job Report was attached. Relevantly, it provided:
COMMENTS: No work shut down by union problems about E.B.A. Carmilio [sic] confirmed us not to start work until told otherwise. Union rep came down explained what is happening. Carmilio [sic] told us able to start work 10.30.
141 At [31] of his affidavit, Mr Dunlop deposed that the Hughes Demolition’s employees “were off the job from around 7.00 am until 10.30 am”. At [32] he stated: “The job was running on a tight schedule so we fell behind and lost those hours of work.” And at [33]: “The job scheduled changed each day so, after that morning, we changed it around as best we could to fit everything in with the works Hughes was meant to do that day.”
The cross-examination of Mr Dunlop
142 In cross-examination he agreed that he did not generally ask Mr Silvestro for permission to start work each morning. The usual practice is that they start unless instructed otherwise.
143 In cross-examination, Mr Dunlop agreed that he only held tool box meetings with Mr Silvestro present on the occasions when a safe work method statement was being reviewed or when there were other personnel on the Site. Other than that Mr Silvestro was not involved in the tool box meetings.
144 He conceded that he did not have a clear recollection of the events of 19 November 2013. He could not remember precisely the words Mr Silvestro had used. Despite this he maintained that Mr Silvestro had told him that they could not start work on the morning of 19 November 2013 because someone from the union was coming on to the Site. He said, “I just remember him saying we couldn’t start work until we had the meeting.”
145 He also gave evidence in cross-examination that Mr Seckold had told him not to commence work until after the meeting. When it was put to him that his evidence was the same in relation to Mr Seckold and Mr Silvestro, he maintained that the “site foreman” had told him first.
146 He admitted that he said to the Hughes Demolition staff: “Do not start work until I have spoken with Dave.”
147 He had asked Mr Silvestro about unloading the tools. They always took their expensive tools offsite to avoid them getting stolen. He could not remember what time they were unloaded but maintained that this had happened after the meeting. He could not recall if they had unloaded some of the less valuable tools before the meeting.
148 Mr Dunlop agreed that Mr Silvestro told him, “You and your crew cannot just stand around all day not doing any work. You need to decide whether you instruct your men to commence work or leave the site.” He said that he remembered Mr Silvestro saying this to him. He agreed that at this point he had not heard from Mr Seckold and was waiting “for an answer” and a “call back” from him. The following exchange occurred:
So you agree that you said you hadn’t heard from Dave when he [Mr Silvestro] asked you? --- I was waiting for calls back, yes.
And you agree that he said, “You can’t just stand around and not do any work, you need to decide whether you are going to instruct them whether commence work or leave the site”? – For me to instruct them. We were told to stop work, so I’m just going on – I was told to stop ---
But you do recall him saying that to you? --- Yes.
149 Under cross-examination he said that he did not know the exact time that Mr Theodorou came. When it was put to him that it was during his morning tea break at about 9.00 am, he said, “We were just waiting for him to come. So I’m not quite – I don’t know the exact time that Theo arrived.” His evidence was that Mr Theodorou spoke to them and then they had a break afterwards. Mr Theodorou spoke for about 10 minutes; it wasn’t long. He spoke about the EBA and what it involved. This occurred in the smoko room. The break was about a quarter of an hour or 20 minutes; a normal smoko break. He could not remember what time they went back to work. He could not remember whether it was 9.30 am or 10.30 am. He could not remember any exact times.
150 After the meeting and smoko Mr Silvestro said that they were allowed to go back to work. He confirmed multiple times that this direction came from Mr Silvestro. He could not remember the exact words but said, “The point was we were instructed. … We were allowed to go back to work.” Mr Dunlop told the workers that they could go back to work and they did so. Prior to that they had not done any demolition work.
151 After the meeting he rang Mr Seckold. He said that as far as he could see everything must be cleared up because they were going back to work.
152 He was asked about the timing of the preparation of his file note. He said that he wrote the first part of it in the morning. He wrote the last bit (which included the “agreed actions”) after the meeting because he was required to record any actions or anything unusual that had happened. He could not remember the exact time that he wrote it but he maintained that it “would have been” written that day. The daily job report was also prepared that day. The tool box form went into the Site file and stayed in the smoko room.
153 He admitted that the toolbox meeting report was likely not given to Mr Silvestro despite the relevant boxes being ticked. He admitted that the daily job reports do not get distributed.
154 Mr Dunlop was not re-examined.
Mr Nicholas Smith
155 Mr Smith was the last of the Commissioner’s witnesses. He was an Industrial Relations Adviser from the MBAV. During examination-in-chief, Mr Smith adopted his two affidavits. Paragraph [10] of his first affidavit was not read due to evidentiary objections. There were no objections to his reply affidavit.
156 Mr Smith was an adviser, employed by the MBAV. On 15 November 2013 Mr Seckold had telephoned the MBAV seeking advice. He had returned Mr Seckold’s call at about 12.40 pm on that day. He recalled that:
14. Mr Seckold said words to the effect of “we need an EBA.” I provided information about the different types of EBAs, such as the industry standard CFMEU EBA, or a separate one tailored for Mr Seckold’s business and employees. I provide information about the process involved for setting up and EBA. I asked him “What type of EBA are you after, are you looking to put in the template CFMEU EBA?”
15. Mr Seckold was unsure about what type of EBA he wanted. I said “have you been told specifically to have an EBA to get onto this specific site?” Mr Seckold said “I have been told that I need to get an EBA onto this specific site”.
16. I said “it’s unlawful for anyone to require you to have an EBA. It is entirely up to you whether you have one or not. If anyone prevents you going on site, or discriminates against you for not having an EBA or for having a particular type of EBA, that’s unlawful as well”. I then said “discuss the matter with the site supervisors to clear up any miscommunication about the issue”. I also said that he could contact FWBC.
157 In his first affidavit, Mr Smith dealt with discussions which he had had on 18 November 2013 with Mr Seckold:
Monday 18 November 2013
18. On Monday 18 November 2013, I received a further call from Mr Seckold. Mr Seckold said “I am looking to sign up to the CFMEU demolition EBA”. He asked further questions about the demolition allowance. I understood from his questions that it was [his] intention to start paying the demolition allowance while the EBA was in the process of being completed. Mr Seckold said “I want the MBAV to act on my behalf and organise this.”
19. Mr Seckold also said words to the effect of “I do domestic work, will this EBA cover me on domestic work?”. I outlined that the scope of the EBA excluded domestic work, and explained that it would be applicable only for commercial work. …
158 He also gave evidence about his conversations with Messrs Seckold and Dwyer on 19 November 2013:
Tuesday 19 November 2013
22. Mr Seckold called me prior to 9.44 am on Tuesday 19 November 2013. During our phone call, Mr Seckold and I had a conversation to the following effect:
Mr Seckold: “they [Hughes employees] went to site and couldn’t get on because they didn’t have an EBA”.
Me: “Make sure it’s not your guys refusing to work”. I said this because I needed to determine whether the Hughes employees were taking unprotected industrial action, because if so, I needed to give advice to Mr Seckold about deducting a minimum of four hours from the employees’ pay.
Mr Seckold: “No we are being prevented from going on.”
Me: “Talk to the principal contractor again and outline what has happened give him this letter from us, they can’t stop you from going on site because of this and you need to go through the proper legal processes to get and EBA up. They need to maintain a site where everyone can work regardless of if they are covered under the award or an EBA.”
23. At approximately 9.44 am on Tuesday 19 November 2013, Jason Dwyer … called my colleague, Simone Scott. Ms Scott transferred the call to me.
24. To the best of my recollection, Mr Dwyer and I had a conversation to the following effect:
Mr Dwyer: “We’ve got a company, Hughes Demolition, they’ve told us they’ve been talking to Master Builders about putting through an EBA, can we have some documentation to prove that.”
Me: “Well, yes they have, I’ve given the company a letter that outlines this and the process. I can call them and see if they would like me to forward that letter on to you.”
Mr Dwyer: “I just want to make sure what we need to be doing on the site as the principal contractor.”
Me: “You need to make sure you are not in breach of any general protections provisions, you need to make sure that your contractors can work without fear, intimidation or coercion, you can’t discriminate against them whether they have EBA or award coverage, and if a company is putting an EBA in place they must be allowed to follow the correct timing provisions for that. If there are any breaches of the general protections provisions, the FWBC can investigate them.
159 Mr Smith deposed as follows about his further communications with Messrs Dwyer and Seckold on 19 November 2013:
25. At 10.48 am I sent Mr Dwyer an email in relation to our telephone conversation.
26. Mr Dwyer replied to my email at 11.02 am. In his email, Mr Dwyer asked me: “If possible can I get something in writing confirming the Hughes Demolition has engaged with MBAV to facilitate an eba [sic]. I am hopeful that this will serve to placate the Union from any further disruption.”
27. I immediately called Mr Seckold to ask whether he consented to me sending the EBA letter to Mr Dwyer. He gave me his consent. Though I do not recall the words used, during this phone conversation I became aware that the Hughes employees were no longer being prevented from working on site.
28. I subsequently sent Mr Dwyer a copy of the EBA letter by way of email at 11.08 am, stating: “Yes Hughes Demolition has asked Master Builders to act on their behalf. I believe they had a letter to that effect. I have attached a copy here."
29. I sent Mr Dwyer a follow-up email at 11.09 am attaching information on right of entry and rights of union officials on site (which I had forgotten to attach to my earlier email).
160 In his second affidavit, Mr Smith deposed that he had read Mr Dwyer’s affidavit dated 16 April 2015. He referred to the telephone conversation between Mr Dwyer and himself at about 9.30 am on 19 November 2013, which he had earlier dealt with at [23] and [24] of his first affidavit. At [6] he deposed that he disagreed that Mr Dwyer had said, “We haven’t given any such instructions on site.” His evidence continued:
7. During our call, Mr Dwyer said words to the effect that he was unsure, and did not have the details about, what had occurred on site that morning. I responded to Mr Dwyer to the effect: “You need to find out what’s going on at the site, and if someone is being prevented from working, you need to make sure everyone understands what can and can’t be done. If it is your employee preventing contractors from working, you need to pull them into line.” I did not recall this aspect of our call until I reviewed the Dwyer Affidavit, which is why my First Affidavit did not refer to this part of our conversation.
161 At [8] of his second affidavit he stated that he agreed with the first sentence in [39] of Mr Dwyer’s affidavit of 16 April, in which Mr Dwyer deposed that during their phone call on 19 November 2013 Mr Dwyer asked Mr Smith to send through information about what they had spoken about and Harris Interiors’ rights at work.
The cross-examination of Mr Smith
162 In cross-examination by counsel for the Harris Interiors’ respondents, Mr Smith was asked whether Mr Seckold had ever told him that Hughes Demolition would not be allowed on the Site if it did not have an EBA. Mr Smith agreed that Mr Seckold had not told him on either 15 or 18 November 2013 that he had been so advised. His evidence was that Mr Seckold told him this on 19 November 2013.
163 He was also tested on [22] of his first affidavit where he had deposed that Mr Seckold had called him on 19 November 2013 and told him that Hughes Demolition’s employees were prevented from working because they did not have an EBA. Mr Smith maintained that his evidence was correct.
164 In response to the proposition that Mr Seckold had not told him who said that they could not get on because they didn’t have an EBA, Mr Smith said, “he didn’t have the specifics and I didn’t … query further on exactly who.” He agreed that it was a fairly general discussion and that Mr Seckold was concerned to make sure that Hughes Demolition’s employees were not the ones refusing to work.
165 Mr Smith conceded that his file notes of the conversations did not actually record what was said but maintained that he had a good recollection of this conversation.
166 He gave evidence that after 19 November 2013 he did not really have any further discussions with Mr Seckold. He said, “basically the last we left off was this situation. … [H]e had discussed the option of looking at doing his own enterprise agreement …. I spoke with him about that. But after that, for some reason he decided to not do an EBA any further, and I don’t recollect any further conversations about this matter or another matter after that.” He didn’t hear from Mr Seckold any further after that.
167 Mr Smith was also cross-examined by counsel for Mr Theodorou and the CFMEU. His evidence was that he had a fairly good recollection of Mr Seckold telling him that he had been effectively excluded from going on site because he did not have an enterprise agreement. That Mr Seckold had been working on the Site was not a detail which was discussed. He had not discussed the potential for a union to engage in protected industrial action under the Act. He had not discussed that Harris Interiors might find it desirable for subcontractors to have EBAs on site so that there were settled industrial relations. He confirmed that his initial conversation with Mr Seckold was purely about Mr Seckold’s need for an EBA.
168 In re-examination by counsel for the Commissioner, Mr Smith confirmed that Mr Seckold had said to him “I need an EBA”, “I need it for this site” and “I need the EBA specifically”.
Mr Michael Woods
169 Mr Woods was a Contract Administrator for Harris Interiors. His evidence was relied upon by the Harris respondents (the third to sixth respondents). His affidavit was read subject to an objection to paragraph [35] which resulted in the omission of certain words in the second sentence. He was not required for cross-examination.
170 His evidence on Harris Interiors position on EBAs was as follows:
Harris HMC Polices and Practice surrounding EBAs
4. Since I have worked with Harris HMC, I have not been informed or become aware of any policy or instruction that requires me or Harris HMC to only award work to contractors who have Enterprise Bargaining Agreements (EBAs).
5. Harris HMC has employed multiple contractors who as far as I am aware do not have EBAs. I was aware that some contractors working on the Kathleen Syme Project did not have EBAs in place, for example, Twin Electrics, Reel-A-Peeling and Argon Bricklaying. Harris HMC had worked with some of these contractors before.
171 His general evidence on the Project was as follows:
Kathleen Syme Library Project
6. In late August 2013 Harris HMC was awarded the Kathleen Syme Library Project (Project) by the City of Melbourne. The project involved the redevelopment of the Kathleen Syme Library. Due to the size of the project, Harris HMC needed to engage sub-contractors, so it put out a tender for the works and then chose contractors to price based on the responses to the tender. We also consider other contractors whom Harris HMC has used in the past that are capable of completing the scope of work as part of this process.
7. As part of the Project, Harris HMC put out a tender for demolition works. Hughes Demolition responded to this tender. I do not believe that the Interior Division of Harris HMC (our division) had worked with Hughes Demolition before, however I believe that our Construction Division had.
8. At 1:34pm on 16 September 2013 I sent an email to Alex Loft, Hughes Demolition Estimator (Loft) advising that if Hughes Demolition was still interested in the job then they could come for a walk through of the site at 10am. …
9. At 3:38pm on 19 September 2013 I sent an email to Hughes Demolition attaching a package of documents regarding the demolition work that needed to be undertaken and considered as part of Hughes Demolition’s quote. …
10. As part of the selection process we hold pre-award meetings with potential contractors who may be undertaking works that are either significant in monetary value or critical to the programme of works. The purpose of these pre-award meetings is to meet face to face with the contractors and question their experience and ability in undertaking similar works to that which they have tendered for. We also run through the scope of the works with them to ensure they have a good understanding of the job.
11. As part of my role as a Contracts Administrator, it is my responsibility to ensure that when Harris HMC awards contracts that we ensure that all aspects of the job are met (e.g. scope, reliability, adequate labour etc.), that the scope of works is adequately covered and that the contract is awarded for the most competitive price.
172 Mr Woods’ recollection of the meeting on 24 September 2013 was as follows:
24 September 2013 Meeting
12. On 24 September 2013, Harris HMC held a pre-award meeting with Hughes Demolition. I attended this meeting with Carmelo Silvestro, Harris HMC Site Manager (Silvestro), and Shanne Darker, Harris HMC Project Manager (Darker) at Harris HMC's offices.
13. During this meeting Darker was asking Loft questions about Hughes Demolition's scale of workforce, experience and capability. I recall that Darker also asked questions about the scope of the Project as well. I may have also asked a number of minor questions during this meeting, although I don't recall any particular questions asked by me.
14. I do not recall there being any mention of ‘EBA’, ‘national code of practice’ or ‘CFMEU’ during this meeting.
15. After this meeting I received a revised quote from Hughes Demolition. …
173 That quote was sent on 14 September 2013. Further revised quotes had been sent to him from Hughes Demolition on 25 and 30 September 2013: at [16] and [17].
174 His evidence about the meeting of 1 October 2013 was as follows:
1 October 2013 meeting
18. At around 8am on 1 October 2013, I attended another meeting at Harris HMC's premises with Hughes Demolition. Also in attendance at this meeting were Silvestro, Darker, Loft, and Hughes Demolition Director David Seckold (Seckold). Jason Dwyer, Harris HMC’s Operations Manager (Dwyer) also attended the meeting, but only for a brief moment, …
19. Even though we had already met with Loft we also needed to meet with Seckold as he was the Director of Hughes Demolition and we needed to make sure Hughes Demolition had the capability to undertake the work that Loft had estimated as part of the quote. I recall that during this meeting someone from Harris HMC, although I can't recall whom, asked Seckold words to the effect of “are you code compliant or do you have any agreements in place which Harris should be aware of.” To the best of my recollection Seckold responded with words to the effect of “we have an EBA”. I do not recall that there was any more discussion around this point and we moved on to the next question.
20. The day before this meeting, on 30 September 2013, I had prepared notes dealing with some of the questions we had to ask Hughes Demolition following our first meeting with them, to remind myself to make sure that these questions were addressed during the meeting. After Seckold said words to the effect that “we have an EBA” I put a tick next to the words ‘EBA Compliant’ in my notebook. ….
21. I refer to paragraph 17 … of the Affidavit of David John Seckold filed 13 February 2015 in this proceeding (Seckold’s Affidavit) in which he says that” Harris had a list of items they wanted to check off with Hughes” and “I was not given a copy of the list”. I do not recall any “list” being “ticked off”. …
22. I also refer to paragraph 18 of Seckold’s affidavit and disagree with his statement that he said words to the effect of, “No we don't have an EBA” and “We are compliant with the Code and industry standards and requirements.” He said words to the effect of “we have an EBA”, as noted above.
23. I refer to paragraph 25 of the Affidavit of Alex Albert Loft filed 13 February 2015 in this proceeding (Loft's Affidavit) and disagree with his statement that during the meeting Seckold said words to the effect of “Hughes works in accordance with building industry standards and EBA requirements”.
175 He recalled that after Hughes Demolition had been awarded the demolition work there were some outstanding paperwork: at [25]. He referred to the emails of 8 and 9 October 2013 from Mr Silvestro requesting further documents including the work method statement (at [26]-[27]) and that he may have followed up those emails by making a telephone call to Hughes Demolition, though he could not recall specifically (at [28]).
176 His evidence on his email of 9 October 2013 which requested the hardcopy EBA was as follows:
29. At 3:33 pm on 9 October 2013 I sent an email to Hughes Demolition which attached the sub contract agreement for the Project and set out a list of items that Hughes Demolition needed to be aware of and provide for the Project. At dot point 2 of this email “EBA” was listed. I added “EBA” into the standard email template that I sent to Hughes Demolition as a part of this email. I did this because I believed based on their representations in pre award meetings referred to above, Hughes Demolition had indicated to Harris HMC that it had an EBA, so I wanted a soft copy on file in case we had to produce it in future. …
177 Mr Woods had some knowledge of the CFMEU’s interest in having Hughes Demolition sign an EBA:
CFMEU and EBA
34. I was never directly contacted by the Construction, Forestry, Mining and Energy Union (CFMEU) in relation to the Project.
35. Around late October 2013, either Darker or Dwyer told me that the CFMEU was asking Harris HMC for evidence of Hughes Demolition’s EBA. … Hughes Demolition had told us during the pre-award meeting that they were “EBA compliant” … .
36. On or around 21 October 2013, Darker told me that Loft had indicated to Darker that Loft would send Hughes Demolition’s EBA across that day, and that this had not been received.
37. So, at 10:32 am on 22 October 2013 I was copied in to an email from Darker to Hughes Demolition in which Darker asked Hughes Demolition to provide evidence of their EBA/Workplace Agreement to Harris HMC urgently.
38. At 12:24 pm on 22 October 2013 Darker copied me in to another email he sent to Hughes Demolition following a conversation Darker had had with Loft which required ‘evidence of compliance by 2pm today’. Loft had still failed to send the EBA through so Dwyer, Darker and I spoke and decided that we needed to impose a deadline for Hughes Demolition to provide the EBA so we could avoid the issue dragging out to the next day.
39. On 23 October 2013, we still had not received the EBA from Hughes Demolition. At 12:23 pm on 23 October I was copied in to another email from Darker to Hughes Demolition which requested an update as to the “latest with the EBA Agreement” and stated that the “situation was disappointing considering this was previously confirmed in Pre-award meetings in our office”. This was the first I knew that Hughes Demolition did not in fact have an EBA. ….
40. At 5:32 pm on 15 November 20131was copied into an email from Darker to Seckold in which Darker asked Seckold to advise him of his ‘progress with Theo from CFMEU in relation to signing up to EBA’ by midday Monday. ln this email Darker also said that ‘if this cannot be achieved then additional sourced [sic] of fully compliant labour will required to be sourced’. …
41. At 11:34am on 19 November 2013 I was copied into an email chain between Dwyer, the Master Builders Association of Victoria (MBAV), and Darker, which attached a letter from the MBAV that confirmed that it was acting for Hughes Demolition in negotiating an EBA. …
178 Mr Woods also expressed concern about the fact that Hughes Demolition had fallen behind in its programme of works and wanted to work to their own timetable for completing the work:
Project Work Delays
42. As the Project continued, Hughes Demolition fell behind the Project programme of works and wanted to work to their own timetable for completing the work. I also understood that Hughes Demolition took on further works outside of the Project which meant that they could not sufficiently resource their labour. I believed this because on a couple of occasions when I was on site Seckold would tell me about the “Toorak job” that Hughes Demolition was also working on at the same time and that he was prioritising his labour for the ‘Toorak Job’ over the Project. Had we been aware that Hughes Demolition were also seeking additional work during the Project which affected its ability to perform and meet the Project programme of work, we would not have awarded them the contract.
43. On 21 November 2013 I was copied in to an email chain between Silvestro and Hughes Demolition regarding attendance at the worksite on Saturdays to keep up with the scope of works.
44. On 22 January 2014, I was copied in to emails between Darker, Silvestro and Hughes Demolition in which they discussed Hughes Demolition’s delays and advised Hughes Demolition that Harris HMC would have to organise additional labour. …
45. Around this time I recall contacting other contractors as well as a demolition labour hire company for pricing to prepare additional sources of labour if Hughes Demolition couldn't keep up with the Project programme of works.
46. Ultimately Harris HMC did have to arrange additional labour to compensate for Hughes Demolition’s delays and get back on track with the programme of works. We engaged SpeedPro who we had used on previous occasions to undertake this work.
47. At 5:26 pm on 20 February 2014 I sent an email to Hughes Demolition advising that Harris HMC would be contra-charging Hughes Demolition due to underperformance on site and for cutting through a fibre optic cable. …
Mr Shanne Darker
179 Mr Darker was another witness called by the Harris respondents. He was the Project Manager for Harris Interiors. He adopted his affidavit in examination-in-chief. There were no evidentiary objections to his affidavit.
180 Mr Darker gave the following evidence about his understanding of the interaction of the Code and EBAs:
7. Around late 2013 my knowledge of the National Code of Practice for the Construction Industry (NCOP) was limited. I believed that it required builders to take steps to be assured that contractors were paying employees according to whatever agreements or legislative requirements were in place, and I believed that if an EBA was in place it would automatically comply with the Fair Work Act and mean that a contractor was paying employees according to legislative requirements.
181 In relation to the meeting of 24 September 2013, Mr Darker deposed as follows:
24 September 2013 Meeting
11. On 24 September 2013 I met with Woods, Silvestro, and Alex Loft, Hughes Demolition Estimator (Loft) for a pre-award meeting with Hughes Demolition.
12. During this meeting Silvestro, Woods and I asked Loft a number of standard questions that we ask potential contractors such as what other work they had, their capacity, what equipment they have and about the Project in general. I recall that Woods and Silvestro were asking most of the questions, although I am sure I did ask some. One of the questions that was asked of Loft by Silvestro or Woods (l cannot recall which) was words to the effect of 'Does Hughes Demolition have a compliant agreement?" I understood this question to be referring to an EBA approved under the Fair Work Act. Loft replied with words to the effect of "Yes".
13. I refer to the Affidavit of Alex Albert Loft filed on 13 February 2015 in this proceeding (Loft's affidavit). I disagree with paragraph 18 of Loft's Affidavit insofar as Loft says that "I was not asked any questions at this meeting by Mr Woods, Mr Darker or Mr Silvestro about whether Hughes had an Enterprise Bargaining Agreement or whether it had an EBA that would be compliant with a 'national code of practice'.
14. I do not believe there was any reference made to the CFMEU during this meeting.
182 In relation to the meeting of 1 October 2013, Mr Darker deposed that:
1 October 2013 meeting
15. At around 8am on 1 October 2013, I attended another meeting with Hughes Demolition. Also in attendance at this meeting were Silvestro, Woods, Loft and Hughes Demolition Director David Seckold (Seckold).
16. I refer to paragraph 15 of the Affidavit of David John Seckold filed on 13 February 2015 in this proceeding (Seckold’s Affidavit) and say that Dwyer was not present, for the great majority of this meeting, although he may have dropped by briefly.
17. The purpose of this second meeting with Hughes Demolition was to check their quotes and worker numbers and to ensure that they were going to be able to meet our program based on their quote. We asked Hughes Demolition questions about this. We also wanted to meet the Director of Hughes Demolition before we engaged them as contractors to ensure that the company was able to complete the scope of the Project and the programme of words on time. I recall that most of the questions during this meeting were asked by Silvestro and I.
18. During this meeting I recall that either Silvestro or I (l cannot recall which) asked Seckold a question to the effect of whether Hughes Demolition was 'EBA compliant' and that Seckold responded with words to the effect of "we are compliant". I refer to and disagree with paragraph 25 of Lofts' Affidavit and paragraph 18 of Seckold's Affidavit in this respect. I do not recall that we discussed this topic in any more detail and I believe that we moved onto the next section quite quickly as we had already ascertained that Hughes Demolition had an EBA during the meeting on 24 September 2013 with Loft.
19. When this question was asked I did not know and did not consider that I needed to know the terms of the EBA, just that it existed.
183 At [20]-[25] he deposed to the emails which he was copied into on 8, 9 and 11 and 17 October 2013 requesting documentation. He deposed that he may have followed Mr Silvestro’s emails with a call to Mr Loft to request the documents (at [26]).
184 In relation to contact with CFMEU and Hughes Demolition he deposed as follows:
Contact with CFMEU and Hughes Demolition
28. At a time I can't recall in late October 2013, I received a telephone call from Silvestro and we had a conversation to the following effect:
Silvestro: "The union is onsite, Hughes doesn't have an EBA. Have they given you a copy?"
Darker: "No they haven't."
29. At 10:32am on 22 October 2013 I sent an email to Hughes Demolition in which I asked them to provide evidence of their EBA/Workplace Agreement to Harris HMC urgently. I believed from the two pre-award meetings that Hughes Demolition had an EBA of some kind that complied with the NCOP.
30. After sending this email I received a telephone call from Loft although I cannot recall what we spoke about.
31. At 12:24pm on 22 October 20131sent another email to Hughes Demolition following the conversation I had had with Loft which sought 'evidence of compliance by 2pm today'.
185 He also gave evidence that Hughes Demolition started work on 10 October 2013 and signed the contract about a week later (at [30]-[32]). As the Project progressed he continued his role which included managing the contractors on the Site. He assisted Mr Silvestro and Mr Darker with their roles through the course of the Project (at [33]).
186 Mr Darker referred to a conversation that he had had with Mr Seckold:
Contact with Hughes Demolition
35. After speaking to Loft and sending the emails of 22-23 October 2013 to Hughes Demolition I recall that on at least one occasion when I ran into Seckold on the street nearby the Project site I had a conversation with him to the following effect:
Shanne: “Are you talking to the CFMEU about your enterprise agreement?”
Seckold: “Yes, yes we are doing it.”
36. I asked this question because I was aware that Seckold had told Harris HMC that he had been talking to “Theo” from the CFMEU about putting an agreement in place.
187 In relation to the events of 14 and 15 November 2013, he deposed as follows:
14–15 November 2013
37. On or around 15 November 2013, I overheard Dwyer on the phone to someone. I recall overhearing him telling the person to "calm down" and saying words to the effect of 'he's dealing with you".
38. Then about half an hour or so later I overheard Dwyer make another call, this time to Seckold. I recall overhearing Dwyer say to Seckold words to the effect of "we need to get this rolling" and "you're not going to get that instruction to stop work from me Dave".
39. After Dwyer had hung up from this conversation I said to him words to the effect of 'Kathleen Syme?" and he confirmed that the call related to the Project. Dwyer and I then had a brief conversation during which he told me about what he had spoken about on the phone with Seckold and Theo Theodorou from the CFMEU. I cannot now recall details of what we spoke about during this conversation.
40. Harris HMC was on a tight programme of works with the Project and maintaining the programme was always at the front of our minds. This was especially the case with the demolition works as they were a critical part of the Project and if delayed would hold up other trades.
41. Dwyer said to me words to the effect of:
Dwyer: "l want you to send an email to Hughes Demolition about this."
42. At 5:32pm on 15 November 2013 I sent an email to Seckold in which I asked Seckold to advise me of his progress 'in relation to signing up to EBA' by midday Monday. I said that 'if this cannot be achieved then additional sourced [sic] of fully compliant labour will required to be sourced'. …
43. I sent the email to Seckold as he had said that Hughes Demolition was looking at creating an EBA and wanted an update on their progress with it. I deny trying to force Hughes Demolition to have an EBA - I believed it was already exploring having an EBA. At the time we were also trying to stick to a very tight programme of works and I wanted to make sure that if there were any disruptions and Hughes Demolition fell behind, we could provide additional resources.
44. As far as I am aware, Harris HMC were never part of any discussion or meetings between Hughes Demolition and the CFMEU, so l, and I believe others at Harris HMC, did not have any direct knowledge of the progress towards Hughes Demolition having the EBA it had said it was seeking.
188 Mr Darker’s account of the events on 19 November 2013 was as follows:
18–19 November 2013
45. At 3:24pm on 18 November 20131was forwarded an email chain from Dwyer which set out correspondence he had received from Hughes Demolition requesting an extra $26,000. … I recall discussing this email with Dwyer although I can't recall exactly what we spoke about.
46. On the morning of 19 November 2013, while I was on my way to the Project site, I received a telephone call from Silvestro and we had a conversation to the following effect:
Silvestro: “The union is onsite, Hughes doesn't have an EBA and has stopped working."
Darker: “Ok, I’ll be there soon and we can talk about it."
47. When I got to the site, I called Silvestro and we met for a coffee nearby. Silvestro and I had a conversation during which Silvestro said to me words to the effect that Hughes Demolition had stopped work and didn't appear to have an EBA in place. I asked Silvestro whether he had instructed Hughes Demolition to stop working and he said that he did not. We also spoke about other parts of the Project that required attention. After I had spoken to Silvestro I tried to call Loft, however he didn't answer his phone. Silvestro and I then went back to the site by which time the Hughes Demolition guys were back at work. I then returned to the office to follow this incident up with Loft.
48. At 11:28 am on 19 November 2013, Dwyer forwarded me an email chain between Dwyer and the Master Builders Associate of Victoria. At 11:34am I replied to Dwyer and copied in Woods, stating that I hoped that this letter would close the situation out. …
189 Mr Darker also gave evidence about Hughes Demolition being behind in the programme for works. His view was that the delay was “caused by Hughes Demolition’s failure to resource the Project correctly and their apparent tendency to turn up when it suited them” (at [49]). He referred to the fact that Hughes Demolition were “ultimately contra-charged” for some tasks which Harris Interiors had to complete and organise for them.
The cross-examination of Mr Darker
190 Mr Darker was asked about the commencement of Hughes Demolition’s work on the Site. He confirmed that the fact that the EBA had not been provided by Hughes Demolition at this stage was not a concern for Harris Interiors.
191 He also confirmed that the payment of Hughes Demolition’s employees in accordance with industrial regulations “wasn’t really a factor” in the Project on 11 October 2013. This remained the position on 17 October 2013.
192 When asked about the first email request on 22 October 2013 for Hughes Demolition to produce the EBA, Mr Darker confirmed that the email was prompted by the presence of the union on the Site.
193 When pressed as to his motivation for sending his emails of 22 and 23 October 2013 which referred to an “increased CFMEU awareness on the Project” he said that he could not recall why he wrote those emails. At one point he said that the purpose of the emails was to follow up Hughes Demolition about their EBA because it had indicated at the initial meeting that it had one.
194 He was questioned about the email which he sent to Hughes Demolition on 15 November 2013. He had sent it following a conversation he had had with Mr Dwyer. In response to a question from the bench about that conversation Mr Darker said:
I think all he asked me to do was send an email clarifying that we need to have an update from Seckold on the matter.
195 Mr Darker accepted that the email went further than that. He said that, “all I wanted was Hughes Demolition to be Code compliant” and “I considered an EBA to be Code compliant.”
196 Although Mr Darker’s affidavit (at [43]) linked this email to the work disruptions on the Site, when pressed he could not recall how the disruptions and the Hughes Demolition EBA were related.
197 At one point he said he could not recall why he referred to finding “additional labour to contra charge.” He gave evidence in re-examination that he understood that labour hire providers are “Code compliant” and “they’re paying all the relevant rates and awards”.
198 However, he also gave evidence that he sent the email as he believed that Hughes were already exploring an EBA and he wanted an update. Harris Interiors was trying to keep to a programme or work and that he wanted to be sure that if Hughes Demolition fell behind Harris Interiors could provide additional resources.
199 Mr Darker acknowledged that the email could be interpreted “in many ways” and accepted that it could have come across as a threat.
200 On the morning of 19 November 2013 he recalled meeting with Mr Silvestro for a coffee nearby at about 9.00 am and returning at 9.20 to 9.30 am. He referred to his email of 19 November 2013 sent later that morning to Mr Dwyer wherein he expressed that hopefully the engagement of the MBAV would “close it out”. He said he could not recall sending it but that “we wanted them to be paying the right wages and be Code compliant.”
201 Mr Darker was re-examined by the Commissioner’s counsel. He confirmed that Mr Loft and Mr Seckold might not have seen his email of 10.30 am when he sent the next email at 12.24 pm on 22 October 2013. He was asked why he used the words “as discussed” in the latter email. He said, “If I remember correctly, I did speak to Alex very briefly about getting this followed up.”
Mr Jason Dwyer
202 Mr Dwyer was the Operations Manager for Harris Interiors. His evidence of was relied upon by the Harris respondents. In examination-in-chief, Mr Dwyer adopted his affidavit. On the basis of evidentiary objections, paragraph [10], the last sentence of [15] and the last sentence of [37] were not read.
203 His evidence on the meeting on 1 October 2013 was as follows:
Meeting on 1 October 2013
11. In early October, I recall being aware that members of Harris HMC staff were meeting with Hughes Demolition for a further pre-award meeting. I did not attend this meeting, although it is possible that I may have popped my head into the meeting as some point. The first time I recall having met David Seckold, Hughes Demolition Director (Seckold) was on the Project site after Hughes Demolition had been awarded the contract. I have never met Alex Loft, Hughes Demolition Estimator (Loft).
204 At [12] of his affidavit, Mr Dwyer deposed that Harris Interiors took possession of the project at 8-9 October 2013. He did not attend the site induction that day. His affidavit continued:
Contact with CFMEU and Hughes Demolition
13. Shortly after Harris HMC started on the Project, I received a call from Theo Theodorou (Theodorou) who identified himself as a member of the First Respondent (CFMEU). Theodorou said to me words to the effect that he wanted to introduce himself to our site team and discuss any site requirements particular to a Union preferred set up. We arranged a time the following week for Theodorou to meet with Harris HMC on site and introduce himself. I had not previously met nor spoken with Theodorou. I do not recall Theodorou mentioning anything about EBAs or Hughes Demolition in particular.
14. I was unaware whether or not Hughes Demolition workers were CFMEU members
15. At 10:32am on 22 October 2013 I was copied into an email from Darker to Hughes Demolition in which Darker asked Hughes Demolition to provide evidence of their EBA/Workplace Agreement to Harris HMC urgently. …
16. At 12:24pm on 22 October 2013 Darker copied me into another email he sent to Hughes Demolition in which he required “evidence of compliance by 2pm today”. I was not aware of the conversation between Darker and Loft referred to therein.
17. At 12:23pm on 23 October 2013 I was copied into another email from Darker to Hughes Demolition in which Darker requested an update on the 'latest with the EBA Agreement' …
205 Mr Dwyer recounted a conversation which he had with Mr Seckold on 23 October 2013:
18. Shortly after this time [about midday], although I can't recall exactly when, I telephoned Seckold and said to him words to the effect that the CFMEU has made claims about the status of your EBA. Seckold also said words to the effect of “it’s not formally in place, but I’m having discussions with the CFMEU with a view to having an agreement in place sooner rather than later.”
19. After that telephone conversation, I received further telephone calls from Theodorou (on a number of occasions), the exact timing and number of which I do not recall. During these conversations, although I can't recall which in particular, I recall Theodorou saying words to me to the following effect:
Theodorou: "They're not talking to me anymore."
"David has agreed to meet us but then hasn't shown up."
"We've been going around in circles and not getting anywhere."
20. The reference to “they” was a reference to Hughes Demolition. I believe that I responded to Theodorou’s statements above by saying words to the effect that “I will give them a call and ask them to keep the dialogue open with you”.
206 His evidence continued:
21. I also recall having conversations with Seckold around the same time during which he said words to the effect of:
Seckold: "We're talking to the CFMEU",
Seckold: "We've been told that there will be consequences for your site if Hughes doesn't sign up to the EBA.'
22. During the same period I also spoke to Seckold over the telephone. On one occasion I recall saying to Seckold words to the effect of:
Dwyer: "Keep the dialogue open with the CFMEU
23. During this period, Seckold and I spoke several times; some weeks every few days and others maybe once a week. During these conversations Seckold confirmed to me that he was in discussions with the CFMEU and that those discussions were ongoing. I wanted to keep abreast of all the issues on and off site for the Project and I felt that it was necessary to be in regular contact with Seckold to discuss Hughes Demolition's work on the Project in general as well as the discussions with the CFMEU he had initiated.
207 In late October, Mr Theodorou had left a voicemail message for him to get in touch about the works on the Site. Mr Dwyer made a note to call him on the Monday 28 October 2013. At some point he telephoned Mr Seckold and agreed to meet him on the Site a few days later on 31 October 2013.
208 On 31 October 2013 Mr Dwyer met Mr Theodorou on the Site and introduced him to Messrs Silvestro, Darker and Carey, the latter being the Harris Interiors’ OH&S representative. No mention was made, at this meeting, of any EBA. Later that same day, he sent a follow up email to Theodorou to provide his contact details.
209 In relation to his alleged “threat” on 15 November 2013, his evidence was as follows:
15 November 2013
27. At a time I can’t recall on 15 November 2013 I received a phone call from Theodorou. Theodorou had a conversation with me to the following effect:
Theodorou: "The boys won't be working next week if we don't get this going."
Dwyer: "I will call Seckold and see what is going on."
28. I understood that Theodorou's reference to the 'boys' was a reference to the Hughes Demolition staff. This was all we spoke about. The conversation was quite brief and I could tell that Theodorou was clearly frustrated and angry during this conversation and I had to tell him to calm down. Theodorou did not seem angry at me, but rather angry with the situation and said words to effect to me about the 'internal pressure' he was under from people 'up the line'. I do not recall anything being said about taking steps to take industrial action.
29. Around half an hour later, around 4pm on 15 November 2013 I telephoned Seckold and had a conversation with him to the following effect:
Dwyer: "You guys need to get something worked through with Theo, the frustration is boiling over with the CFMEU. Theo has said if you don't get it signed you guys aren’t going to get to work on Tuesday. You have to find some form of resolution even if it means putting your guys on another site and getting in labour guys to assist. lf you can't stick to the program we will get others in. lf you need additional labour we can help you out with that. Would that help?"
Seckold: "It may or may not, send me through the contacts lf you don't want them to work, I need it in writing, otherwise we will start work at 7am on Tuesday in accordance with the contract."
Dwyer: "Well that instruction will not be coming from me Dave. We want you to work and we want more of your people to come to work. We can't fall any further behind of the program of works and we won't be delayed by the CFMEU. We need to get this back on track. We don't care whether you have an EBA or not we just need to keep going."
30. As I recall, that conversation revolved around the progress on of the work on site and the CFMEU requests for Hughes’ EBA.
210 Mr Dwyer responded to some of the evidence given by Mr Seckold:
31. I refer to the Affidavit of David John Seckold filed on 13 February 2015 in this proceeding (Seckold’s Affidavit) in respect of this conversation and say as follows:
31.1 ln respect of paragraph 60, I had offered to assist Hughes Demolition with sourcing additional labour to continue the works on site. I did not make this offer in a threatening manner, nor did I mean for it to be interpreted as such. I was just reinforcing the fact that we needed to continue with the programme of works.
31.2 In respect of paragraphs 63 and 64 I did say words to this effect in order to convey the importance of maintaining the programme of works on site. I recall that Seckold agreed that getting in additional labour to help Hughes Demolition keep up with the programme of works could be an option and later that week I forwarded Seckold an email with some contacts (the details of which are set out below in this my affidavit)
31.3 ln respect of paragraph 65 I believe that this was the only conversation Seckold and I had about the provision of additional labour to assist with the demolition works.
32. At no point during this conversation did I say that any EBA had to be made in a particular form or agreed to by the CFMEU.
33. During that conversation Darker was seated nearby me. After I had hung up from Seckold Darker said to me "Kathleen Symes?"
34. I confirmed to Darker that he was correct and I had been talking about the Project. I then explained to Darker the conversations I had had with Seckold and Theodorou as outlined above. I believe that I tried to call Silvestro after this conversation but his phone rang out and I didn't leave a voicemail.
35. At 5:32pm on 15 November 2013 I was copied into an email from Darker to Hughes Demolition in which Darker referred to my conversation with Seckold that day and requested that Hughes Demolition advise him of their progress with signing up to EBA by midday Monday and if that could not be sorted then other compliant labour would need to be sourced as the Project needed to keep moving. …
211 In relation to the events of 18 November 2013 he deposed as follows:
18 November 2013
36. At 3:17pm on 18 November 2013 I received an email from Seckold which stated that Hughes Demolition would be seeking additional charges of $26,000+GST and that the Master Builders Association of Victoria (MBAV) would be engaged to facilitate the 'undertaking of EBA rates'. Based on my conversations with Seckold, I understood that Seckold believed that he would have to pay his staff more money under any EBA rates. I do not know where Seckold got this information from, but it was not based on anything that I had told him. …
37. I refer to paragraph 74 of Seckold's Affidavit and say that I do recall a conversation to the effect of what Seckold described. I also recall saying to Seckold words to the effect of "put your claims in writing so they can be reviewed." …
212 His evidence about 19 November was as follows:
MBAV
38. At around 9:15am on 19 November 2013, I received a call from Silvestro who said to me words to the effect that Hughes Demolition had stopped work following a request by the union. So at around 9:30am I telephoned MBAV to see if what Seckold had said in his email about the MBAV being engaged to facilitate the 'undertaking of EBA rates' was in fact the case. I also wanted to ask Smith about the events that had taken place on the Project that morning and get some advice as to how Harris HMC should proceed, as I had not been exposed to any sort of stoppage of work before and was unsure what directions and instructions I should provide my guys on site. I was put through to Nicholas Smith of the MBAV (Smith) and we spoke for around 10 minutes, which included a conversation to the following effect:
Smith: "Harris should not at any stage be preventing contractors from working"
Dwyer: "We haven't given any such instructions on site".
39. I also asked if Smith could send some information through about what we had spoken about and Harris HMC's rights at work. I believed as a result of the conversation with Smith that Harris HMC was entitled to require Hughes Demolition workers to continue work, and I decided to call Silvestro to tell him to do so.
40. After the conversation had finished, I immediately called Silvestro. Silvestro advised me that everyone had already returned to work. I refer to paragraph 86 of Seckold’s Affidavit in which he says that I had a conversation with him before 'his guys went back to work'. I do not recall speaking to Seckold on 19 November 2013 and I believe I would have recalled if Seckold had accused me of being in breach of “the construction industry regulations.”
41. At 10:48am on 19 November 2013, I received an email from Smith which followed on from our conversation and set out some advice in respect of 'rights at work'. At 11:02am on 19 November 2013 I replied to Smith's email requesting something in writing from MBAV confirming that Hughes Demolition had engaged MBAV to facilitate an EBA. I thought that if I had proof of the fact that Hughes Demolition was in the process of obtaining advice on how to approach the EBA negotiations it had initiated, the CFMEU would not be able to say Hughes Demolition was 'dragging the chain' and would stop disrupting the site. At 11:08am on 19 November 2013 Smith replied confirming that MBAV was acting on behalf of Hughes Demolition and attached a letter to that effect.
42. Then at 11:28am the same day I forwarded this email to Darker and Andrew Headberry, Harris HMC General Manager (Andrew), stating that “with a bit of luck this letter attached will resolve our issues.” At 11:34am Darker replied with an email stating that he hoped that this would close out. At the time, I believed that the fact that Hughes Demolition had engaged MBAV to advise it on EBA issues would mean that the CFMEU would leave Hughes Demolition alone. …
43. At 11:09am on 19 November 2013 I received a further email from Smith which attached documentation about right of entry and rights of union officials on site. …
44. At 11.45am on 19 November 2013 I sent an email to Theodorou attaching the letter from the MBAV, in which I stated that I was hopeful that this would resolve any issues regarding work on site. …
213 His evidence about those two days continued:
18-19 November 2013
45. At 3:24pm on 18 November 20131was forwarded an email chain from Dwyer which set out correspondence he had received from Hughes Demolition requesting an extra $26,000. … I recall discussing this email with Dwyer although I can't recall exactly what we spoke about.
46. On the morning of 19 November 2013, while I was on my way to the Project site, I received a telephone call from Silvestro and we had a conversation to the following effect:
Silvestro: “The union is onsite, Hughes doesn't have an EBA and has stopped working.”
Darker: “Ok, I'll be there soon and we can talk about it.”
47. When I got to the site, I called Silvestro and we met for a coffee nearby. Silvestro and I had a conversation during which Silvestro said to me words to the effect that Hughes Demolition had stopped work and didn’t appear to have an EBA in place. I asked Silvestro whether he had instructed Hughes Demolition to stop working and he said that he did not. We also spoke about other parts of the Project that required attention. After I had spoken to Silvestro I tried to call Loft, however he didn’t answer his phone. Silvestro and I then went back to the site by which time the Hughes Demolition guys were back at work. I then returned to the office to follow this incident up with Loft.
48. At 11:28am on 19 November 2013, Dwyer forwarded me an email chain between Dwyer and the Master Builders Associate of Victoria. At 11:34 am I replied to Dwyer and copied in Woods, stating that I hoped that this letter would close the situation out. …
214 At [49]-[53] he gave evidence that for the rest of the Project Hughes Demolition were behind in their programme for works. He considered that this was caused by Hughes Demolition’s failure to resource the Project correctly.
The cross-examination of Mr Dwyer
215 Mr Dwyer reiterated that, in relation to his conversation with Mr Seckold of 15 November 2013, all he wanted was for Hughes Demolition to continue “the dialogue” with the CFMEU, rather than “negotiating” or “making” an EBA. When the inconsistency of this answer and what he had said at [29] of his affidavit was pointed out, Mr Dwyer conceded that he wanted a “compromise” with the CFMEU. Mr Dwyer did not accept that this amounted to “making” an enterprise agreement with the CFMEU. He agreed that the CFMEU wanted Hughes Demolition to sign an enterprise agreement.
216 He said that his discussions with Hughes Demolition in October and November 2013 were concerned with maintaining the programme on the Site.
217 Mr Dwyer confirmed that he had told Mr Seckold that there would be potential consequences for Harris Interiors if Hughes Demolition did not sign up to an EBA. He agreed that if Hughes Demolition did not sign an EBA the CFMEU might cause disruption on the Site.
218 He claimed that he did not necessarily know that a resolution with the CFMEU involved the making of an enterprise agreement. He acknowledged, however, that he knew that the CFMEU wanted to make an enterprise agreement with Hughes Demolition. He agreed that “facilitating” an enterprise agreement means “making” an agreement. When asked whether he knew that the CFMEU wanted the enterprise agreement to be made and finalised he said, “I would assume they wanted that, yes.”
219 When asked about the references to sourcing additional labour and potential disruption to the Site in his conversation with Mr Seckold on 15 November 2013 as set out at [29] of his affidavit, Mr Dwyer said, that “there were multiple discussions going on in the one conversation”.
220 Mr Dwyer initially said that he did not know what the consequences were for Hughes Demolition if it did not sign up to an EBA. He later accepted that the issue between Hughes Demolition and the CFMEU in relation to an EBA had the potential to disrupt works on the Site. He confirmed that he told Mr Seckold that there would be potential consequences for Harris Interiors if the EBA was not signed. He was asked, “You knew that the only thing that would satisfy the CFMEU was making an enterprise agreement?” Mr Dwyer responded: “That’s reasonable, I suppose.”
221 He said that he called the MBAV on 19 November 2013 because there was a disruption on the Site and he was unsure what instructions he should give to Mr Silvestro. Mr Dwyer said that a reason he sent the email to Mr Theodorou on 19 November 2013 attaching the letter from the MBAV was because he “wanted to demonstrate to them that Seckold had engaged with someone else … so the CFMEU might shift their focus” away from the Site.
222 When asked whether making the enterprise agreement would resolve the issue, he stated that he “believed [it] would remove the CFMEU from the equation completely.” He believed that the issuance of the letter to him referred to at [41] of his affidavit would resolve the issue.
223 In re-examination, Mr Dwyer was asked about his recollection of what he told Mr Seckold. He said: “Simply that he should continue to discuss with the CFMEU and that, ultimately, it was in the project’s best interests if those discussions were ongoing. He could not recall if, after the conversation, and prior to the email being sent, he spoke with Mr Darker. He said: “I don’t know that I did, I may have, about that, but I can’t be certain that I did speak to Shanne. … [W]e did sit very closely together. He would have overheard that conversation, I’ve no doubt.”
Mr Carmelo Silvestro
224 Mr Silvestro was the Site Manager for Harris Interiors. He was the last witness called by the Harris respondents. Mr Silvestro adopted his two affidavits without evidentiary objections. He made an amendment to [19] of his first affidavit to depose that Alex Loft was also present at the meeting on 1 October 2013.
225 He gave other evidence-in-chief that, in around November 2013, some employees of Hughes Demolition spoke to him about being represented by the CFMEU in EBA negotiations with Hughes Demolition.
226 He was also asked about the events of 19 November 2013. He said that he went for a coffee with Mr Darker at about 8.30 am or 9.00 am for about 20 minutes. They returned at 9.30 am at which point the Hughes Demolition employees had resumed working.
227 His first affidavit contained his recollection of the meeting on 24 September 2013:
Meeting on 24 September 2013
12. On 24 September 2013 I met with Darker, Woods and Alex Loft, Hughes Demolition Estimator (Loft). The meeting was a pre-award meeting which was held for the purpose of discussing the Project scope and programme of works, safety requirements, working hours and to ensure that the sub-contractor has the necessary 'safety certification' and other licences in place to ensure that they are allowed to work on the site. This includes whether or not an EBA or workplace agreement is in place (and if so, whether the EBA is compliant with the NCOP).
13. During this meeting Woods, Darker and I both asked Loft questions which addressed whether or not Hughes Demolition had various requirements in place to ensure that they were able to meet the working and safety requirements of the Project. These are a standard set of questions that we ask potential sub-contractors and that we modify depending on the nature of the project and the type of work the contractor would be undertaking. One of the questions Woods/Darker asked Loft was whether Hughes Demolition was "EBA compliant?" I recall that Loft said to Woods words to the effect of "We are EBA compliant."
14. Before the meeting I had prepared two documents to remind myself about the outstanding items that Harris HMC needed to ask Hughes Demolition about during the pre-award meeting. The first was a sub-contractor comparison chart. I prepared that chart to compare the different contractors who had submitted a quote for the demolition works for the Project. I filled in this table before I met with each contractor at the pre-award meetings, based on the quotes they had sent through. Then during the initial pre-award meetings I would update the chart based on what the contractor would tell us. I had done the same for Hughes Demolition before attending the pre-award meeting.
15. After Loft had told us that Hughes Demolition was EBA compliant I crossed out the words "need to follow up" in the 'EBA Compliant' row of the Hughes Demolition column of the chart and replaced it with the words "(Spoke to Alex Loft they are compliant)". ….
16. The second document I had prepared for the pre-award meeting with Hughes Demolition was a copy of their quotation which I had annotated and made notes on in respect of their scope of works before I attended the pre-award meeting with them. After Loft had told us that Hughes Demolition was 'EBA Compliant' I wrote on this document the words "Spoke to Alex Loft and asked us to send full documentation. He is EBA Compliant." …
17. I refer to paragraph 18 of the Affidavit of Alex Albert Loft filed in this proceeding on 13 February 2015 (Loft’s Affidavit) and disagree with his statement that he was not asked whether "Hughes had an enterprise bargaining agreement".
18. There was no reference made to the CFMEU during this meeting.
228 His recollection of the meeting on 1 October 2013 was as follows:
Meeting on 1 October 2013
19. At around 8am on 1 October 2013 Harris HMC held another meeting with Hughes Demolition. I attended this meeting with Woods, Darker and Hughes Demolition Director David Seckold (Seckold). It was important that we meet with Seckold before we awarded the work to Hughes Demolition as we needed to ensure that what Loft had instructed us at the initial pre-award meeting was in fact the case. This was the first time I had met Seckold. During this meeting we spoke about Hughes Demolition's background, past work they had completed, and the capability of Hughes Demolition to complete the Project.
20. I also recall that one of the Harris HMC staff at the meeting asked whether Hughes Demolition had an EBA and one of the Hughes Demolition representatives confirmed that they did and also said words to the effect that they had "a signed agreement". I refer to paragraph 18 of the Affidavit of David John Seckold that was filed in this proceeding on 13 February 2015 (Seckold's Affidavit) and disagree with Seckold's statement that he said words to the effect of "No we don't have an EBA" or that "We are compliant with the Code and industry standards and requirements."
21. I also brought the notes at annexures CS-2 and CS-3 with me into this meeting. This may have been the list that Seckold refers to at paragraph 17 of Seckold's Affidavit.
229 He deposed to his request for documents:
Request for Documents
22. At 12:55pm on 2 October 2013 I sent an email to Woods setting out a list of the items that I wanted Woods to make sure were covered off in the agreements with the contractors for the Project. …
23. On 8 October 2013 I sent Hughes Demolition an email setting out what they needed to provide us before they started on site. …
24. At 2:05pm on 9 October 2013 I received an email from Fiona Franchi (Ms Franchi)which attached Hughes Demolition's Public Liability and WorkCover documentation that Loft had requested Ms Franchi send to me as well as a Demolition Plan. The email also advised that a Safe Work Method Statement would be signed by the Director the next week. Later that day at 3:18pm lsent an email in response to Hughes Demolition requesting that Loft update the documentation he had sent me so that it complied with Harris HMC's requirements and procedures. …
25. At 3:33pm on 9 October 2013 I was copied in to an email from Michael Woods to Hughes Demolition which attached the sub contract agreement for the Project and set out a list of items that Hughes Demolition needed be aware of and provide for the Project. …
…
27. … [A]t 7:24am on 11 October 2013 I sent another email to Hughes Demolition requesting that all outstanding documentation be provided to me by the coming Tuesday morning as it would be required prior to Hughes Demolition continuing work that day. …
28. Over a week later on 17 October 2013, Hughes Demolition had still failed to provide all the required paperwork it was required to submit. So, at 8:35am on 17 October 2013 I sent a further email to Hughes Demolition requesting that they update some of the paperwork they had provided to me as it was still incomplete. The email I sent only dealt with particular documents. I did not ask for a copy of the EBA at that time as this was not something that was responsible for getting. …
230 At paragraphs [29]-[32] Mr Silvestro deposed as to the contact by the CFMEU on the Site:
Contact by CFMEU
29. Sometime in October 2013, after Hughes Demolition started on site, although I can’t recall the specific date, Theo Theodorou (Theodorou) attended the Project site, gave his business card to me and introduced himself as a Representative of the Construction, Forestry, Mining and Energy Union (CFMEU). He said to me words to the effect that he wanted to speak with the “members” working on my site and also said that Hughes Demolition did not have an EBA in place. Theodorou also said words to the effect that he had been in discussions with Seckold on other building sites where Hughes Demolition had been contracted to undertake demolition works. I understood that “members” was a reference to CFMEU members.
30. Following this conversation I telephoned Darker and Dwyer and explained the conversation that had taken place between me and Theodorou. Either Dwyer or Darker told me that Hughes Demolition had not provide them with a copy of the EBA.
31. I did not talk to anyone from Hughes Demolition about the visit by Theodorou.
32. Theodorou attended the project site on a few occasions after this, although I can’t recall the specific times and dates. I do recall that when Theodorou attended the site we would often talk about the fact that he wanted to make his members aware that he was their Area Representative and he would also say words to the effect that he was in discussion with Mr Seckold regarding Hughes Demolition’s EBA.
231 At [33]-[42] he deposed to various conversations he had with Mr Seckold about the “progress of the EBA”. He was copied into the emails from Mr Darker to Hughes Demolition on 22 and 23 October 2013 in which Mr Darker requested the provision of the EBA. He also gave evidence that, over the next few months, he spoke to Mr Seckold about three or four times about the progress of his attempts at arranging an EBA for Hughes Demolition. He would ask, “Have you sorted it out?” Mr Seckold would reply to say, “Yes, we are talking” (referring to the CFMEU); “My accountants and lawyers are looking at it”; and “I got caught up so I couldn't attend the meeting” (referring to the CFMEU). He told Seckold that he did not mind what he did so long as Hughes Demolition “sorted it out”.
232 He referred to telephone conversations which he had with Mr Loft and Mr Seckold in late October 2013. He said:
42. To the best of my recollection, I believe that during about 99% of these telephone calls I spoke to Hughes Demolition about whether they were keeping up with the programme of works and also about the possibility of allocating more labour and working on Saturdays to speed up the progress. The other 10% may have been calls about whether Hughes Demolition had progressed the EBA it was pursuing.
233 At [43]-[49] he deposed to the fact that Hughes Demolition was behind in its programme of works. At [46] he referred to a telephone conversation with Mr Loft on 8 November 2013 during which he suggested to Mr Loft that Hughes Demolition needed more staff on the Site, needed to work Saturdays to keep up with the programme of works, and that the bin organisation was not up to scratch. He told them to fix their delays but did not refer to hire-companies at that point. He also spoke to Mr Seckold a about these issues when he visited the Site. At [57]-[61] he gave evidence that these delays continued after the events of 19 November 2013.
234 In his first affidavit he deposed to the events of 19 November 2013 as follows:
19 November 2013
50. I refer to paragraph 78 of Seckold’s affidavit in which he says that at around 6:50 am on 19 November 2013, Dunlop had called him and said “What’s going on, I have been told by Mr Silvestro that we are not allowed to unload the Ute or start work this morning. Mr Silvestro told me that he was waiting for a phone call.” What Dunlop allegedly told Seckold in this conversation is not correct. The conversation Dunlop and I had that morning was to the following effect:
Dunlop: “Are we allowed to unload our tools off the ute and start work?”
Silvestro: “Why did you take your tools off site? You have always locked them on site. And why are you asking me if you’re allowed to unload your ute and start working?”
Dunlop: “Dave told me that he had been told that if he does not sign the CFMEU EBA we will not be allowed back on site.”
Silvestro: “Whatever issue Dave has with the CFMEU is between those two parties and is not to be brought on site. As far as I am concerned you can start working immediately.”
51. I refer to paragraph 83 of Seckold’s Affidavit and disagree with Seckold’s recollection of the conversation we allegedly had around 9am on 19 November 2013. I recall that the conversation took place to the following effect:
Silvestro: “What is going on? Why are there men are not working and waiting on direction from you?”
Seckold: “I have been advised by Theo that if we don’t sign the EBA we will not be allowed back on site.”
Silvestro: “If you have an issue with the CFMEU do not bring it onto Harris HMC’s site. Your men are to start work immediately or leave the site. They are not allowed to stand around waiting on your direction to start work.”
“Why have they taken [their] tools off site? Every other time they they’ve been locked on site. To me, this means you had no intention on starting working this morning and that this was premeditated.”
52. After Hughes Demolition had stopped work I telephoned Darker and had a conversation to the following effect:
Silvestro: “The union is onsite, Hughes doesn’t have an EBA and has stopped working.”
Darker: “OK, I’m on my way, I’ll be there soon and we can talk about it.”
53. A short time later I received a telephone call from Darker in which he asked me to meet him for a coffee near the site. I met Darker at a coffee shop nearby and had a conversation during which I told Darker that Hughes Demolition had stopped work. Darker asked me whether I had told Hughes Demolition to stop working, I confirmed to Darker that I did not. Darker and I then returned to the site office, by which time the Hughes Demolition workers were back at work.
235 In his second affidavit, Mr Silvestro said the following about Mr Dunlop’s tool box meetings:
Toolbox meetings
8. At paragraph 11 Dunlop states that he conducted a tool box meeting with the Hughes Demolition employees every morning and also reviewed the Safe Work Method Statements (SWMS) with myself and the Harris HMC OHS Representative, Martin Carey. This is not entirely correct. Dunlop did not review SWMSs with me and the Harris HMC OHS Representative every morning. We only reviewed SWMSs with Hughes Demolition and Dunlop when there was high risk demolition involved. I recall that high risk demolition took place on around six occasions. I cannot comment on the frequency of the Hughes Demolition toolbox meetings as I was not a part of these meetings.
236 In his second affidavit, Mr Silvestro returned to the events of 19 November 2013:
Tuesday 19 November 2013
9. At paragraph 13 Dunlop states that during the Kathleen Syme Project he would usually ask me whether Hughes Demolition could start work in the morning. This is not correct. As far as I recall, Dunlop only asked me this question on the morning of 19 November 2013 and on other mornings on which we had we had reviewed SWMSs because high risk work was taking place on those mornings.
10. Paragraph 14 of the Dunlop Affidavit is incorrect. At around 6.20am on the morning of 19 November 2013, Dunlop and the other Hughes Demolition staff entered the Site and signed into the site register for the day. Then, at approximately 6.30am, Dunlop approached me and said to me words to the effect of were Hughes Demolition allowed to unload their tools and start work. The details of the conversation that followed between Dunlop and I is set out at paragraph 50 of my First Affidavit (Unload Tools Conversation).
11. After I had had the Unload Tools Conversation with Dunlop, I overheard Dunlop saying to the Hughes Demolition staff present words to the effect of "do not start work until I have spoken to Dave."
12. Then, at approximately 8.30am on 19 November 2013, I had a conversation with Dunlop to the following effect:
Silvestro: "Do you have any news from your boss about what you are meant to do?"
Dunlop: “No"
Silvestro: "You and your crew cannot just stand around all day not doing any work. You need to decide whether you instruct your men to commence work or leave the site."
13. At around 8:30am I also recall Hughes Demolition began unloading some of their tools on to the Site, but I did not see whether they unloaded all of their tools required on the Site at this stage.
14. As set out at paragraph 51 of my First Affidavit I had a telephone conversation with Seckold around 8:45am on 19 November 2013. After I hung up from talking to Seckold I said to Dunlop words to the effect of "you either start working or leave the site."
15. I did not say to Dunlop words to the effect of "Tell the boys to hang around until we can get further notice that we can start or work" nor "We've got a union bloke coming to have a site meeting."
16. Paragraph 20 of the Dunlop Affidavit is also incorrect. I do not recall Hughes Demolition taking their expensive tools off Site each night during the Kathleen Syme Project. The only time that Dunlop asked me whether Hughes Demolition could unload their tools was the morning of 19 November 2013 and Dunlop's request surprised me as he had not asked me whether Hughes Demolition could unload their tools before. I also do not agree with Dunlop's assertion that "Carmelo had said Hughes couldn't start work." I did not say this nor any words to the effect that Hughes Demolition could not start work.
237 In this second affidavit, Mr Silvestro referred to Mr Theodorou’s presence on site on 19 November 2013:
Hughes Demolition employees meeting with CFMEU representative
17. I refer to paragraph 23 of the Dunlop Affidavit and recall that Theodorou came on the Site around 9 - 9.30am and spoke to Hughes Demolition for part of their morning tea break. I am not sure how long Theodorou was at the Site.
18. Paragraphs 26 and 27 of the Dunlop Affidavit are incorrect. I did not go in the Site sheds around 10:30am, nor did I say to Dunlop “it's all good everything has been cleared and I have been instructed that you can carry on with your work." Hughes Demolition started work after I said to Dunlop words to the effect of "You either start work immediately or leave the site. I will not have you and your men standing around waiting on instruction from Dave.” Also, Hughes Demolition had already started work before the morning tea break that morning at 9:30am, not 10:30am.
19. I disagree with paragraph 31 of the Dunlop Affidavit insofar as Dunlop states that Hughes Demolition was “off the job from around 7.00am until 10.30am on 19 November 2013.” As I have said Hughes Demolition had started work on the Site before the 9.30am morning tea break that morning.
238 Mr Silvestro took issue with notes made by Mr Dunlop in his tool box meeting record and his daily job report for 19 November 2013:
Toolbox Meeting Record and Daily Job Report
20. A toolbox meeting record is annexed to the Dunlop affidavit and marked "WD-1". I do not know whether the reference to "Carmelo informed" is supposed to mean I was informed that Hughes Demolition would not start work until told otherwise, or that I informed Hughes Demolition not to start work until told otherwise. However the record is incorrect. The correct position is set out in this affidavit.
21. The record indicates in the "Distribution" section that a copy of the record was handed to me as Site Supervisor (or possibly to the "Safety (sic) Officer"), and placed on a site noticeboard. A copy was not given to me, and I am not aware that a copy was ever placed on a site noticeboard or given to a "Safety (sic) Officer". I do not know when the record was completed by Dunlop.
22. A Daily Job Report is annexed to the Dunlop affidavit and marked 'WD-2'. The report is incorrect as it suggests that I informed Hughes Demolition not to start work until told otherwise. The correct position is set out in this affidavit. I do not know when the report was completed by Dunlop.
239 Mr Silvestro’s evidence about his conversation with Mr Seckold the following day on 20 November 2013 was as follows:
20 November 2013
54. I refer to paragraph 100-102 of Seckold's Affidavit which sets out the conversation I had with Seckold on 20 November 2013 in my office. I agree that a conversation took place, although I recall it taking place to the following effect.
Silvestro: "Why are you implicating Harris HMC and particularly me to Fair Work Australia with the issues that you have with the CFMEU. lf you continue to do this I will take legal action.
You had the idea of negotiating the signing of the CFMEU EBA, all we asked is that you produce evidence that you have an agreement in place as you and Loft told us in the pre award meeting.
Who Hughes Demolition has the agreement with is up to you."
55. We then spoke about his allegation that I had stopped Hughes Demolition working on the Project on site. I said words to Seckold to the following effect:
Silvestro: "This is all lies. Dunlop came to me and asked if they were allowed to unload their ute and start work to which I replied what are you talking about.
Dunlop said that he had been told by you not to start work until advised to do so by you. I said to him, why have you taken your tools off site, fhis rs nof your usual practice. lt seemed like the sequence of events were all premeditated.
Then, when I called you about why your men were not working that morning you told me that Theo had told you that if you did not sign the EBA you would not be allowed back on site.
The cause of all these issues is that you lied to us in the pre award meetings about having an agreement in place and you brought the issues you already had with the CFMEU onto our site."
56. By this stage of the discussion it was becoming a heated argument and I asked Seckold to leave the site. I do not agree that I was almost in tears but I was certainly very angry.
The cross-examination of Mr Silvestro
240 In cross-examination, he was asked about the meeting of 24 September 2013. He said he had a basic understanding of the Code but did not know the “ins and outs”.
241 Mr Silvestro confirmed that he was “not that interested” in the EBA as at 9 October 2013. He had sent the emails relating to safety as this was his responsibility. The EBA was not his responsibility so he did not follow it up when it was not provided.
242 He also confirmed that, despite the EBA having been one of the documents requested in Mr Woods’ email on 9 October 2013, when Hughes Demolition commenced work on the Site on 10 October 2013 he was not that fussed that one had not been produced.
243 He confirmed, in relation to his email of 11 October 2013, that at this stage, Harris Interiors was not saying that Hughes Demolition could not work if they did not have an EBA.
244 He agreed that, at the time the 17 October 2013 email was sent, he was not asking Hughes Demolition for an EBA because it was not a priority for him.
245 This remained the position until shortly before 22 October 2013, when Harris Interiors had sent the email requesting Hughes Demolition to produce an EBA. What had changed was the intervention of Mr Theodorou.
246 He agreed that Mr Theodorou had attended the Site in October 2013 and told him that Hughes Demolition did not have an enterprise agreement. This was the first he knew of the fact. He agreed that he was concerned about the discussion with Mr Theodorou. When it was put to him that, his concern arose out of Mr Theodorou coming on the Site and telling him this, he said, “No that’s not correct. If the follow up from the office did not produce an agreement as Seckold and Loft put to us, it would have arose [sic] as well. Theodorou just brought it to our attention”.
247 Mr Silvestro admitted that, by 22 or 23 October 2013, he was concerned about the CFMEU and wanted Mr Seckold to “sort it all out”. He said that he knew that “increased CFMEU awareness” potentially meant that the CFMEU would organise industrial action and disruption on site and this would be a concern. If Hughes Demolition had an EBA this would placate the CFMEU. The risk of industrial action would reduce.
248 He also gave evidence that, in October and November 2013, he spoke with Mr Seckold to check on Hughes Demolition’s progress with the EBA. He was following up the EBA because of the risk to the programme of works if there was no EBA.
249 He was asked about the events of 19 November 2013. He confirmed that no other contractor’s employees were stopped from working on 19 November 2013. He agreed that, at 7.00 am that morning he did not know for how long the work stoppage would.
250 Mr Theodorou arrived on site at about 9.00 am. He said that he did not know that Mr Theodorou was coming to the Site that day. It was a coincidence that he arrived. He was not concerned at his arrival as Mr Theodorou was free to talk with the members during breaks. He agreed that Mr Theodorou’s meeting went for about 10 minutes.
251 He recalled Mr Dunlop saying, “I’ve been told by David that I’m not to start work until I hear from David.” His evidence was that Mr Seckold directed Hughes Demolition employees not to work that morning. Before making the call to Mr Seckold to find out what was going on, he dealt with the other contractors on site and went for a coffee across the road with Mr Darker.
252 Mr Silvestro maintained that he rang Mr Seckold at approximately 9.30 am that morning and told him what was happening. He was not sure of the time but agreed that it was approximately two and a half hours after the Hughes employees were meant to commence work. He said:
Based on what I was told by Dunlop that he had spoken to David and he was told, “You’re not allowed to start work”, until they were told so. And my response to that was, “Well, you’re not allowed to stand around. You either start work or you leave site.”. At that time, I met with Shanne Darker for a coffee, so yes, all that time did lapse.
253 Mr Silvestro was pressed about this delay in contacting Mr Seckold once he was aware that the Hughes Demolition employees were not working on the morning of 19 November 2013. Counsel noted that it has taken him two and a half hours “to ring the boss” when these employees weren’t working. He replied: “That’s because they’re not my only contractor on site. There are other issues I had to deal with prior to getting back to that, so I went based on what Dunlop told me. … I left it at that for that point in time. I’ve dealt with my other issues on site with other contractors and get the job moving, and then I went back to dealing with that.” He said that he had other issues on site to resolve first and that “in the morning you could have ten people coming at you. So I delegate and I prioritise what potentially could stop the Project.”
254 Mr Silvestro’s maintained that Mr Dunlop had filled in the toolbox meeting report falsely and had also completed the daily job report falsely. He did not see the tool box meeting report that day.
255 He was confronted with the proposition that his version of events on 19 November 2013 was untruthful. He responded that: “I am telling the truth. I am telling the truth and I will stand by it and I will repeat it 100 times if I have to.”
256 He conceded that, although he had general diary in which he kept notes, he did not have one for recording daily activities. When asked whether he filled in a site diary for that day, he said that he would have go back to his previous diaries. He said that he had not exhibited a site diary for 19 November 2013 because he had not written down anything about the Hughes Demolition’s employees not working that day. It was put to him that he did not write it down because he told them that they could not work. He replied that that was “incorrect”. He denied that he stopped the Hughes Demolition employees from working on the site because they did not have an enterprise agreement. When it was put to him that he wanted Hughes Demolition to have an enterprise agreement to placate the CFMEU he stated:
They – as part of what they – as part of what they asked in the pre-award tender, that was one of the questions that was asked. They agreed they did have one. They should have had one in place as they – as they said they did. They were not able to produce it. There was CFMEU present. If we had have had that in place, then that would have gone away, yes.
257 He denied that he wanted to force Hughes Demolition to comply with the CFMEU request to have an enterprise agreement. He stated: “That was a path he took. We did not force him to take that path.” When asked who “he” was, he stated, “David from Hughes Demolition. He chose to take that path. All we asked – the same as we asked for any other contractor – is they have an agreement and they show proof. That’s as far as we go. We do not force”.
258 He said that rather they needed to make sure sub-contractors are compliant with the national Code and that there is an agreement between the employer and employee. His said: “Whether it be with them [the CFMEU] or someone else, it didn’t concern me who it was with, but he needed an agreement.”
259 Mr Silvestro was not re-examined.
260 The Commissioner alleged that Mr Theodorou and the CFMEU had contravened ss 345 and 349 on 23 October 2013. He also alleged contraventions of those sections in late October 2013 by the CFMEU. The contraventions were denied.
261 Section 345 of the Act provides:
345 Misrepresentations
(1) A person must not knowingly or recklessly make a false or misleading representation about:
(a) the workplace rights of another person; or
(b) the exercise, or the effect of the exercise, of a workplace right by another person.
Note: This subsection is a civil remedy provision (see Part 4‑1).
(2) Subsection (1) does not apply if the person to whom the representation is made would not be expected to rely on it.
262 A person has a “workplace right” if the person is, relevantly, “able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument”: s 341(1)(b). Relevantly, s 341(2)(e) provides that “a process or proceedings under a workplace law or workplace instrument” includes “making, varying or terminating an enterprise agreement”.
263 Section 349 of the Act provides:
349 Misrepresentations
(1) A person must not knowingly or recklessly make a false or misleading representation about either of the following:
(a) another person’s obligation to engage in industrial activity;
…
Note: This subsection is a civil remedy provision (see Part 4‑1).
(2) Subsection (1) does not apply if the person to whom the representation is made would not be expected to rely on it.
264 A person “engages in industrial activity”, as defined in s 347(b)(iv), if the person does, or does not “comply with a lawful request made by, or requirement of, an industrial association”. The term “lawful request” is not defined.
Pleadings
265 The Commissioner pleaded that two representations allegedly made by CFMEU officials to Mr Seckold in October 2013 breached both ss 345 and 349.
266 The first representation was Mr Theodorou’s alleged statement to Mr Seckold on 23 October 2013 that, “as Hughes Demolition is working in the city, it needs to obtain an enterprise agreement with the CFMEU for its employees.”
267 The second was the alleged statement, made by Mr Theodorou or Mr Reardon to Mr Seckold in late October 2013, that, “You work in the city so you have to have an enterprise agreement and you should sign this now.”
268 In relation to s 345 the Commissioner pleaded that the representations were:
about a “workplace right” within the meaning of s 341(1)(b) and (2)(e) because they were about a purported obligation of Hughes Demolition to make an enterprise agreement. Hughes Demolition had a workplace right, as defined in those sub-sections, to make an enterprise agreement; and
false or misleading as, at all relevant times, there was no legal or other requirement for Hughes Demolition to make an enterprise agreement. The statements, expressly, or by way of impression, represented that Hughes Demolition was required to enter into an enterprise agreement to perform work in the city.
269 In relation to s 349(1)(a) the Commissioner pleaded that the representations were:
about Hughes Demolition’s obligation to comply with a request by the CFMEU that Hughes Demolition make an enterprise agreement;
false or misleading about Hughes Demolition’s obligation to “engage in industrial activity”, namely to comply with a request by an industrial association. The request made by the CFMEU to make an EBA was a “lawful request” made by an industrial association within the meaning of s 347(b)(iv).
270 In relation to the mental element of both ss 345 and 349 the Commissioner averred that the representations were made by Mr Theodorou (or, in the case of the second representations, Mr Reardon), knowing they were, or reckless as to whether they were, false or misleading. They knew there was no legal or other obligation on an employer in the city to make an enterprise agreement. Their knowledge could be inferred from their industrial experience and knowledge and position as an organiser (Mr Theodorou) and Assistant State Secretary (Mr Reardon).
271 Mr Theodorou denied that he had made either representation. At trial, however, his counsel did not seriously contest that the statements had been made. The CFMEU denied all liability.
272 Mr Theodorou and the CFMEU also pleaded that, in any event, ss 345(1) and 349(1)(a) did not apply because Mr Seckold would not be expected to rely upon the representations: see ss 345(2) and 349(2).
Commissioner’s submissions
273 The Commissioner submitted that the contraventions of ss 345(1) and 349(1)(a) were established on the evidence. As Mr Theodorou did not give evidence the Court ought to infer that it could not have assisted his case. This inference could be drawn even though he claimed the penalty privilege: see Director of the Fair Work Building Industry Inspectorate v McCollough [2016] FCA 1291 at [151]-[154] (Barker J).
274 His submissions mirrored his pleadings in relation to the contentions that the representations were false and misleading “about” the exercise of Hughes Demolition’s right to make an EBA and “about” its obligation to comply with the CFMEU’s request to make one.
275 The Commissioner relied on the Full Court’s decision in Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2015) 230 FCR 298; [2015] FCAFC 25.
276 A question arose during submissions about whether any representation comprehended by s 345(1) needed to concern legal rights in order to engage the section. It might be said, against the Commissioner, that Mr Theodorou’s statement was not about a legal obligation but was rather a statement about the industrial reality on building sites in Melbourne. He accepted that s 345(1) required that a representation be about a “workplace right”, defined in s 341 as “the ability to initiate or participate in a process or proceeding”. He conceded that a contravention of s 345 might be more difficult to establish that a contravention of s 349.
277 He accepted that ss 345 and 349 do not apply if the person to whom the representation was made would not be expected to rely on it. Section 345(2) was considered by Cameron J in Adcock v Blackmores Ltd (2016) 259 IR 209 at 229; [2016] FCCA 265 at [97]:
I read [s 345(2)] to mean that s 345(1) will not apply if a reasonable person in the circumstances of the person making the misrepresentation would not, at the time the representation is made, expect the recipient of the misrepresentation to rely on it. The words “would not be expected to rely on it” imply an objective test and, to operate fairly, must relate to the representor’s state of mind. In that connection, if s 345(2) were to operate by reference to a hypothetical reasonable person without knowledge of the dealings between the parties to the misrepresentation, it would be possible that contextual matters which could shed light on whether the recipient of the misrepresentation would be expected to rely on the misrepresentation might not be taken into account. Further, use of the word “would” points to the test being applied by reference to the state of knowledge existing at the time the misrepresentation is made: SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190 at [17].
278 This decision was upheld on appeal in Adcock v Blackmores Ltd [2016] FCA 893, where Flick J held (at [54]) that the primary judge had “committed no appellable error in rejecting the claim for relief founded upon misrepresentations and a contravention of s 345 of the Fair Work Act.” Counsel recognised that it was not entirely clear whether Flick J was endorsing what the primary judge had said about the exception in s 345(2).
279 The Commissioner asserted, consistently with Adcock, that the test for the engagement of the exception was objective and that the word “would” means that it should be applied with reference to the state of knowledge at the time the misrepresentation was made. It was irrelevant that Mr Seckold at a later time consulted someone who told him that it was untrue.
280 He emphasised that the respondents bore the onus of proving the exceptions. This onus had not been discharged. He pointed to Mr Seckold’s evidence that he had never before been told by a CFMEU member that Hughes Demolition needed an EBA. He had assumed Mr Theodorou knew about EBA requirements as he was from the CFMEU and spoke with authority. He had never negotiated an EBA before and knew nothing about the Act’s requirements.
281 Counsel accepted that Mr Seckold had given evidence that he knew the CFMEU was an employee organisation with an interest in advancing employee interests. Mr Seckold had also said that he knew he was not lawfully required to make an EBA. These concessions, however, did not establish objectively that he would not be expected to rely on the representations that he needed to comply with a CFMEU request. Rather, his answers reinforced the notion that Mr Seckold understood that the CFMEU required him to make an enterprise agreement. Not only did the CFMEU representatives expect him to rely on that representation, they wanted him to.
Submissions of Mr Theodorou and the CFMEU
282 Mr Theodorou and the CFMEU submitted that there were three answers to the allegation that the statements were false or misleading representations about Hughes Demolition’s workplace right to enter into an enterprise agreement or its obligation to comply with a request to make an enterprise agreement.
283 First, nothing was said about the legal obligations of anyone under ss 341 or 347. The Act was not mentioned and neither those sections nor their substance were referred to. Nothing was said about making an enterprise agreement or about being required to obey a request by the CFMEU to make an enterprise agreement. This submission was said to find support in BHP Coal at 328 [157] (Logan, Bromberg and Katzmann JJ).
284 Secondly, even if the representations were inconsistent with a workplace right or an obligation to take part in industrial activity, it did not follow that they were representations about a workplace right or an obligation to engage in industrial activity. Reliance was placed on some observations in BHP Coal at 328 [156].
285 Thirdly, having regard to the context (that they were spoken by a union official to an employer), they were reasonably understood as referring to the CFMEU’s policy of having an enterprise agreement or, more specifically, a CFMEU agreement. There was no suggestion that the statements had as their source of authority the Act or that they were understood that way. There was no suggestion that the statement led Mr Seckold to harbour a misconception about his rights. Counsel referred to BHP Coal at 328-329 [160].
286 A further submission was made that, even if the alleged representations had been made, and even if 345(1) and 349(1) were engaged, Mr Seckold could not be expected to have relied upon the representations such that the exceptions in ss 345(2) and 349(2) were enlivened.
287 To the extent that the test for these exceptions was objective, it was not reasonable to suggest that a union official would expect a person in Mr Seckold’s position in the construction industry in Victoria (who did not otherwise know the union official) to rely upon the statements. First, he was dealing with a union official, or two officials, who he had never met before. Secondly, he knew that they were from the CFMEU and knew that the CFMEU was concerned with own its interests, and those of its members, and not his interests. Thirdly, Mr Seckold was being asked, by a union, to do something which he understood was important. No one could reasonably, when the circumstances are viewed objectively, have expected him to rely on what was said. He did not, in fact, rely on it but got advice from a lawyer and accountant.
288 To the extent that the test was subjective, Mr Seckold’s conduct — including, in relation to the second representation, saying that he needed to take the document away, seeking advice proximate to the time of the alleged representation, and stating that he regarded the matter as one for “decision” — illustrates that no-one could reasonably have expected Mr Seckold to rely upon what was said to him.
289 Counsel relied on the following exchange from Mr Seckold’s cross-examination:
Now, when you were contacted by Mr Theodorou in late October and then you went to the meeting with Mr Reardon and Mr Theodorou you knew, from minute one, that they were from the CFMEU; correct? Correct.
And you knew that the CFMEU was an organisation that represented employees, broadly speaking, in the construction industry; correct? Yes.
And you knew that the CFMEU was concerned with advancing the interests of employees in the industry; correct? Advancing the
Well, they didn’t look after bosses, did they? They looked after workers? Correct.
Correct? Yes.
…
When Mr Theodorou or Mr Reardon told you that you should have an EBA, you knew that they were saying that on behalf of the CFMEU, didn’t you? Yes.
… You knew they were telling you what the CFMEUs position was in relation whether or not you should have an EBA; correct? Yes.
And when they said, “You need to have an EBA”, they were saying that the CFMEUs policy is you must have an EBA or you should have an EBA; correct? Yes.
… [T]hey went a little bit further. They said that you should have a CFMEU EBA, didn’t they? They – yes.
So it was as clear as day to you that what they were saying to you was the CFMEU required you to have an EBA, being the CFMEU EBA itself; correct? Yes.
They weren’t telling you what you were lawfully obliged to do under the Fair Work Act, were they? No.
And you didn’t understand that that’s what they were telling you, did you? Didn’t understand that they were telling me that I needed an EBA?
Under the Fair Work Act? No, I didn’t – no. I didn’t, no.
They weren’t telling you that there was some legal requirement out there somewhere that obliged you to have a CFMEU EBA, were they? No, they didn’t tell me any legal
No. They were telling you that the CFMEU required you to have an EBA, weren’t they? Yes.
Thank you. Now, you didn’t sign the EBA when you were in the meeting with Mr Reardon and Mr Theodorou, did you? No.
You knew, in that meeting, that you wanted an opportunity to go and get advice, didn’t you?---Yes.
You wanted to get your own advice about what you should do; correct?---Yes.
And indeed after the meeting you, I think, got advice from your accountant; correct?---I forwarded it to my accountant after the meeting, yes.
And you got some advice from him. I don’t need to know what the advice is, I’m not going to ask you about that, but you got some advice from him. You had a discussion with him about it?---Yes, I had a discussion.
Yes, and you also, I think, got some advice from a solicitor; correct?---Yes.
And that was within, I think, days, if not less, of the meeting with Mr Theodorou and Mr Reardon; correct?---Yes.
And then, I think weeks later, you got some additional advice from the Master Builders Association of Victoria?---Yes.
You didn’t act what Mr Theodorou and Mr Reardon were telling you by signing the EBA, did you?---No.
You didn’t rely on what they told you, did you?---No.
Consideration
290 The first question to be determined is whether the first and second representations were made to Mr Seckold as alleged by the Commissioner.
291 If either or both of them were made, it becomes necessary to decide whether either, or both, ss 345(1) and 349(1)(a) have been contravened. This inquiry involves a consideration of the elements of those provisions and a consideration of whether the exceptions, contained in ss 345(2) and 349(2) respectively, have been made out.
292 It was not seriously disputed that the two pleaded representations had been made to Mr Seckold in October 2013. I accept that they were made. What is in issue is what they conveyed and whether either of them was misleading. The answers to these questions fall to be assessed having regard to the context in which they were made.
293 That context can be traced back, at least, to the meeting on 24 September 2013 between representatives of Harris Interiors and Hughes Demolition. Although there is some dispute about whether there was specific reference to an EBA in the course of that meeting there can be no doubt that, over the next few weeks, Harris Interiors made repeated requests, by e-mail and otherwise, for Hughes Demolition to provide a copy of an EBA. Hughes Demolition had not produced copies of an EBA. Despite this failure Harris Interiors did not object to Hughes Demolition working on the Site. Work progressed for some weeks until Mr Theodorou had attended. He was aware that Hughes Demolition was undertaking work at the Site and had not signed an EBA with the CFMEU. Mr Theodorou put pressure on Harris Interiors. As a result, on 22 and 23 October 2013, further emailed requests were made by Harris Interiors that Hughes Demolition provide copies of its EBA with the CFMEU.
294 In the background to these onsite events, there were a series of telephone exchanges between Mr Theodorou and Mr Seckold in which Mr Theodorou insisted that Hughes Demolition should sign an EBA with the union.
295 In the course of one of these conversations, on 23 October 2013, Mr Theodorou had made the first representation.
296 As a result of these telephone discussions Mr Seckold, shortly afterwards, had attended at the CFMEU offices. It was there that the second representation was made.
297 The substance of each representation was that, because Hughes Demolition was working in the city, it needed to obtain or had to have an EBA with the CFMEU. Both statements represented to Mr Seckold that Hughes Demolition was required to enter into an EBA because it was working at the project site.
298 The first representation was about the making of an enterprise agreement. The second was about Hughes Demolition’s obligation to comply with the union’s request to enter such an agreement.
299 A representation will be misleading “if it has a tendency to lead a person into error”: see BHP Coal at 328 [159].
300 The question which arises under s 345 is whether Mr Theodorou (in the case of the first representation) and Mr Theodorou or Mr Reardon (in respect of the second representation) had knowingly or recklessly made a misleading representation about the making of an enterprise agreement.
301 The question under s 349 is whether the officials knowingly or recklessly made a misleading representation about compliance with a lawful request made by the CFMEU.
302 In neither case was the source of the alleged obligation to obtain an EBA disclosed by the official concerned in making the impugned statement. There is no doubt that the demand, in each case, gave effect to a union policy. That policy was inconsistent with the Act to the extent that it required contractors, working on city construction sites, to enter into an EBA proffered by the union and, I readily infer, this was well known to the two experienced officials involved in making the representations. Clearly, Mr Seckold understood that the demand that his company enter into an EBA with the CFMEU stemmed from a union policy. The policy could not, however, create the obligation. No such obligation existed. Despite this the officials told Mr Seckold that his company needed to obtain an EBA in order to be able to continue working at the Site. The making of the statement coincided with pressure being imposed on Hughes Demolition by Harris Interiors, at the instigation of Mr Theodorou, to enter such an agreement. The statements were intended to convey to Mr Seckold that the obligation (whatever its source) existed. This was misleading and was intended to be so.
303 Moreover, the maker of each statement plainly intended that Mr Seckold would accede to the demand because of the existence of the asserted obligation. Each statement was made by a CFMEU official who spoke with authority. It is not the case that Mr Seckold would not be expected to rely upon the statements. He did rely on the statements, at least to an extent, by seeking advice from his advisors about making an EBA. The exceptions, provided for in ss 345(2) and 349(2), have no application.
304 Mr Theodorou contravened both ss 345(1) and 349(1) by making the first representation.
305 The second representation was made either by Mr Theodorou or Mr Reardon. It too was misleading about a relevant matter. In particular, it represented that Hughes Demolition was required to comply with the CFMEU’s request to enter an enterprise agreement. No such requirement fell upon Hughes Demolition. I will return, later in these reasons, to deal with the Commissioner’s claim that the CFMEU is liable for these additional contraventions of ss 345(1) and 349(1).
306 The Commissioner alleged a number of contraventions of s 340. That section provides:
340 Protection
(1) A person must not take adverse action against another person:
(a) because the other person:
(i) has a workplace right; or
(ii) has, or has not, exercised a workplace right; or
(iii) proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; or
(b) to prevent the exercise of a workplace right by the other person.
Note: This subsection is a civil remedy provision (see Part 4‑1).
…
307 A person has a “workplace right” if the person is “able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument”: s 341(1)(b). Section 341(2)(e) provides that “a process or proceedings under a workplace law or workplace instrument” includes “making, varying or terminating an enterprise agreement”.
308 The circumstances in which a person takes “adverse action” against another are set out in s 342(1). Relevantly, “adverse action” is taken by:
“a person (the principal) who has entered into a contract for services with an independent contractor against the independent contractor, or a person employed or engaged by the independent contractor”, if the principal “terminates the contract”: item 3(a).
the principal, if the principal “alters the position of the independent contractor to the independent contractor’s prejudice”: item 3(c).
the principal, if the principal “refuses to supply, or agree to supply, goods or services to the independent contractor”: item 3(d)
an industrial association, or an officer or member of an industrial association, if the association, officer or member “organises or takes industrial action against the person”: item 7(a).
309 Section 342(2)(a) provides that “adverse action” includes “threatening to take action”.
310 “Industrial action” is relevantly defined in s 19 as:
19 Meaning of industrial action
(1) Industrial action means action of any of the following kinds:
(a) the performance of work by an employee in a manner different from that in which it is customarily performed, or the adoption of a practice in relation to work by an employee, the result of which is a restriction or limitation on, or a delay in, the performance of the work;
(b) a ban, limitation or restriction on the performance of work by an employee or on the acceptance of or offering for work by an employee;
…
Pleadings
311 The Commissioner pleaded the following instances of adverse action contrary to s 340:
(1) The alleged threat by Mr Theodorou on 15 November 2013.
(2) The alleged threat by Mr Dwyer on 15 November 2013.
(3) The alleged threat by Mr Darker on 15 November 2013.
(4) The work stoppage on 19 November 2013 allegedly instigated by Mr Silvestro.
(5) The advising, inciting and/or encouraging by Mr Theodorou of Mr Silvestro’s actions on 19 November 2013 (via s 362).
312 Each of the alleged contraventions were denied.
313 The alleged threats by Messrs Dwyer and Darker were said to be “adverse action” under s 342(1) because they were threats:
(1) to terminate the demolition contract (item 3(a));
(2) to alter the position of Hughes Demolition to its prejudice (item 3(c)), as preventing the “boys” from working on site, engaging other employees, and charging Hughes Demolition for that work, would mean that Hughes Demolition would lose contract revenue and incur the cost of the other employees; or
(3) to refuse to make use of the services offered by Hughes Demolition (item 3(d)).
314 Mr Theodorou’s threat was said to be “adverse action” under s 342(1) because it was a threat:
(1) to organise or take “industrial action” against Hughes Demolition (item 7(a)), as preventing “the boys” from working would constitute: a ban, limitation or restriction on the performance of work; or the performance of a manner different from that in which it is customarily performed, or the adoption of a practice in relation to work by an employee, the result of which is a restriction or limitation on, or a delay in, the performance of work; or
(2) to take action which would prejudice Hughes Demolition in relation to its contract with Harris Interiors (item 7(c)), as not letting “the boys” work on site would prevent it from performing the scheduled works that day, causing delay.
315 The work stoppage, allegedly instigated by Mr Silvestro, was said to be “adverse action” under s 342(1) because it was:
(1) an alteration of Hughes Demolition’s position to its prejudice (item 3(c)) as, due to the work stoppage, it fell behind in its contracted work; or
(2) a refusal to use Hughes Demolition’s services under the contract (item 3(d)).
316 Mr Theodorou was alleged to be liable for Mr Silvestro’s contravention of s 340 under s 362. That section provides:
362 Advising, encouraging, inciting or coercing action
(1) If:
(a) for a particular reason (the first person’s reason), a person advises, encourages or incites, or takes any action with intent to coerce, a second person to take action; and
(b) the action, if taken by the second person for the first person’s reason, would contravene a provision of this Part;
the first person is taken to have contravened the provision.
(2) Subsection (1) does not limit section 550.
317 It was alleged that each instance of adverse action was taken because Hughes Demolition had not exercised, or proposed not to exercise, its workplace right to make an enterprise agreement. In alleging these particular reasons the Commissioner foreshadowed reliance upon ss 360 and 361 of the Act, which provide:
360 Multiple reasons for action
For the purposes of this Part, a person takes action for a particular reason if the reasons for the action include that reason.
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.
(2) Subsection (1) does not apply in relation to orders for an interim injunction
Commissioner’s submissions
318 The Commissioner submitted that discharging the s 361 onus is difficult if the relevant actor gives no evidence: Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 600 at 517; [2012] HCA 32 at [45] (French CJ and Crennan J); Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2014) 253 CLR 243; [2014] HCA 41.
319 Whether adverse action was taken “because” of a prohibited reason is a question of fact to be answered in light of all the evidence. The reason must be operative or immediate and need not be the sole or dominant reason. Distinguishing between proximate and immediate reasons or between the cause and reason for conduct is unhelpful: Barclay v Board of Bendigo Regional Institute of Technical and Further Education (2011) 191 FCR 212 at 221-222; [2011] FCAFC 14 at [27]-[31] (Gray and Bromberg JJ); see also Helal v McConnell Dowell Constructors (Aust) Pty Ltd (No 3) (2011) 285 ALR 281 at 293; [2011] FCA 1344 at [67]-[68] (Tracey J).
320 The Commissioner noted that Mr Theodorou did not give evidence to rebut the presumption that he made the threat on 15 November 2013 because Hughes Demolition had not, or proposed not to, exercise its workplace right. If the Court accepted the threat had been made the contravention would be established by operation of s 361.
321 The Commissioner noted that Mr Dwyer did give evidence as to what he claimed he said to Mr Seckold on 15 November 2013 and his reasons for saying it. His evidence, that the statement was made merely to keep an open dialogue with the CFMEU and to offer help to get additional labour, should not be accepted because it was inconsistent with the following:
His evidence-in-chief about his conversation with Mr Seckold on 15 November 2013. At [29] of his affidavit he admitted to saying, “You guys need to get something worked through with Theo, the frustration is boiling over with the CFMEU … You have to find some form of resolution even if it means putting your guys on another site and getting in labour guys to assist” (emphasis added).
His conduct on 19 November 2013 when he called the MBAV to confirm that it has been engaged by Hughes Demolition to negotiate an EBA and his request for confirmation of this in writing. Once he received this confirmation, he forwarded it to Mr Darker stating, “with a bit of luck the letter attached will resolve our issues”. He also forwarded the letter to Mr Theodorou with a similar message.
His counsel’s opening submission that “the motivating factor for everything my clients did, was to ensure that people were paid accordingly to industrial regulations, industrial requirements. A way of achieving that is to ensure that there is an enterprise agreement”.
The Harris Interiors respondents’ written submissions which stated that, once it was apparent that Hughes Demolition did not have an EBA, “at that point, and consistently with the legitimate consideration that a lack of settled industrial arrangement on the part of a sub-contractor may lead to ‘industrial disruption and consequent delay’, Harris acted to have Hughes comply with its representations by negotiating for an enterprise agreement.”
His concession that the CFMEU may cause disruption to the programme and that he knew Mr Theodorou wanted Hughes Demolition to make an enterprise agreement. He had also agreed that he had concerns about what the CFMEU’s intentions on the Site.
322 In relation to Mr Darker, the Commissioner’s submissions repeated his pleadings (see [313] above).
323 The Commissioner submitted that Mr Silvestro engaged in the conduct because Hughes Demolition did not have an EBA. This was demonstrated by:
The concern expressed by Harris Interiors prior to 19 November 2013 about Hughes Demolition not having an EBA with the CFMEU (as evidenced by the emails of 22 and 23 October 2013).
The threats that were made by other Harris employees (Messrs Dwyer and Darker) that if Hughes Demolition did not have an EBA it would not be permitted to work on site.
Mr Dunlop’s evidence that, when he asked Mr Silvestro why Hughes Demolition could not commence work on 19 November 2013, he had replied: “We’ve got a union bloke coming to have a site meeting.” After the meeting the Hughes employees were permitted to return to work.
Mr Seckold’s evidence that Mr Silvestro told him that Mr Seckold needed to speak with Mr Theodorou and “sort out what’s happening with the union”.
324 Mr Silvestro’s evidence was that he was only interested in Hughes Demolitions making an EBA with the CFMEU after Mr Theodorou attended the Site and told him that Hughes Demolition did not have one. His failure to discharge his onus under s 361 to rebut the presumption that he took the adverse action for a prohibited reason was evidenced by his concessions in cross-examination that:
he was concerned after his discussions with Mr Theodorou that Hughes Demolition did not have an EBA and that is why he began contacting Mr Seckold about this;
he wanted Hughes Demolition to make an EBA with the CFMEU;
he knew that increased CFMEU awareness potentially meant industrial action and this concerned him; and
if Hughes Demolition made an EBA the CFMEU would be placated.
325 The Commissioner also submitted that Mr Theodorou had advised, incited and/or encouraged Mr Silvestro to engage in the work stoppage for the proscribed reasons alleged and that he was, therefore, liable under s 362.
326 The Commissioner advanced a further submission that Mr Theodorou was involved in Mr Silvestro’s contravention of s 340. This submission relied on s 55(2). This claim was not made in his amended statement of claim. At no point was it pleaded that Mr Theodorou’s liability under s 340 arose on this basis. The Commissioner’s pleading on Mr Theodorou’s derivative liability for Mr Silvestro’s conduct was confined to s 362, at least in relation to the claimed contravention of s 340.
Mr Theodorou’s submissions
327 Mr Theodorou submitted that, while it was true that the Commissioner had the benefit of the presumption created by s 361, the central question remained: “Why was the action taken?” That question was to be answered in light of all the facts established on the evidence: Barclay at 517 [45] (French CJ and Crennan J). The statutory presumption did not relieve the Commissioner of his obligation “to establish the factual existence of the circumstance which is said to have been the reason for the taking of the adverse action”: see Tattsbet Ltd v Morrow (2015) 233 FCR 46 at 75; [2015] FCAFC 62 at [119] (Jessup J, Allsop CJ and White J agreeing).
328 He contended that the Commissioner had not proven the contraventions. First, there was no evidence that action was taken or threatened because the CFMEU and Mr Theodorou sought to make an enterprise agreement under the Act or that they had requested such a thing. While Mr Theodorou or Mr Reardon had earlier told Mr Seckold that he “needed to obtain a CFMEU EBA for our employees” and that “you work in the city so that you have to have an EBA”, there was no evidence that what was sought was the making of an enterprise agreement under the Act. An “EBA” or a “CFMEU EBA” are not known to the Act. The request was not to “make” anything; it was to “sign” something. There was no reference to the processes under the Act for the making of enterprise agreements.
329 Secondly, the evidence suggested that what was sought was not an enterprise agreement under the Act at all because all Mr Seckold was asked for was his signature on the EBA. His failure to do so prompted Mr Theodorou to say the words, “I am going to make everything every difficult and not let the boys work on the site.” Signing a document between the CFMEU and Hughes Demolition was not an act that could constitute “making an enterprise agreement” as, under the Act, an agreement is “made” when a majority of employees who cast a vote approve the agreement (s 182). No demand or request was made which suggested that they wanted the making of an enterprise agreement under the Act. Mr Seckold was not asked to engage in any activity that could or would have led to the exercise of Hughes Demolition’s workplace right to make an enterprise agreement. He was not told to do any of the required actions stipulated in the Act which are relevant to the making of an agreement.
330 Thirdly, there is nothing to suggest that Mr Theodorou had uttered those words for any reason other than that Mr Seckold had lied about coming to the office to sign the EBA on 14 and 15 November 2013. The alleged “threat” was in response to Mr Seckold going back on his word. By his own admission, and on the evidence at trial, Mr Seckold had misled Mr Theodorou. This was preceded by him not taking calls from Mr Theodorou in the hope of avoiding the whole issue and “fobbing” him off. This was sufficient to displace any presumption about the reason for speaking as he did.
331 As the Commissioner had failed, so it was said, to establish the elements of the alleged contravention, no onus was placed upon Mr Theodorou by s 361.
332 Mr Theodorou did not make any express submissions on the operation of s 362. He did deny in his submissions that any “accessorial” liability could be attributed to him in relation to Mr Silvestro’s conduct on 19 November 2013 on the basis that he did not know of the alleged contraventions. His attendance on the Site on 19 November 2013 was during morning tea or “smoko” time when the employees were not working in any event. Mr Silvestro had been happy for him to come on site and speak with the employees during breaks. There was no evidence of his knowledge of the fact of, or reasons for, any stoppage. The employees returned to work soon after. These factors told against an inference of any complicity.
Harris respondents’ submissions
333 The Harris respondents advanced the following case theory which contextualised the specific submissions of Messrs Dwyer, Darker and Silvestro:
In pre-contractual negotiations relating to work on the Project Hughes Demolition made representations to Harris Interiors that: (a) Hughes Demolition was covered by an enterprise agreement; and (b) the terms of that agreement were compliant with regulations Harris Interiors believed applied to the building and construction industry at the time, including the National Code of Practice for the Building and Construction Industry (“the Code”).
Harris Interiors sought this representation. It gave comfort in relation to compliance with the regulations and “the avoidance of industrial disruption and consequent delay”: Director, Fair Work Building Industry Inspectorate v ADCO Constructions Pty Ltd (No 2) [2016] FCA 1463 at [187] (Collier J). That was a legitimate consideration in relation to the sub-contract. Delay would expose Harris Interiors to risk under its head contract.
When Harris Interiors became aware the representations were untrue, consistently with that legitimate consideration, it acted to ensure that Hughes Demolition would comply with its representations by negotiating for an enterprise agreement. Under the Act such negotiations may be conducted with employee bargaining representatives. Harris Interiors understood that the CFMEU was likely to be a bargaining representative of Hughes Demolition’s employees.
The contract between Hughes Demolition and Harris Interiors included a provision that, if Hughes Demolition was unable to perform the contract, Harris Interiors was entitled to complete the works and require Hughes to pay the additional cost incurred in doing so. Harris Interiors was dissatisfied with Hughes Demolition’s compliance with the programme of works. The notification of this right was unexceptional.
The steps taken by the Harris respondents were all directed to ensuring that Hughes Demolition complied with its earlier representations for the legitimate reason of avoiding industrial disruption and delay. That was a legitimate business objective: cf ADCO (No 2).
334 Mr Dwyer submitted that his conversation with Mr Seckold on 15 November 2013 did not contain any threat. Like the email from Mr Darker which followed, it was a communication between colleagues to inform Mr Seckold of the likely need to arrange alternative labour and suggest possible solutions, including sourcing labour hire staff. He had merely offered Harris Interiors’ assistance to source that “additional labour”.
335 Mr Darker submitted that his email of 15 November 2013, when fairly read, did not contain any threat. It was merely a follow-up to Mr Dwyer’s conversation and a request for an update as to the progress of discussions with the CFMEU. It was consistent with Harris Interiors’ understanding that Hughes Demolition chose to be compliant with the Code and applicable awards and regulations by having an enterprise agreement. This understanding was formed on the basis of representations in the meetings on 24 September 2013 and 1 October 2013. Harris Interiors had understood that Hughes Demolition was discussing or negotiating with the CFMEU. In re-examination his evidence was that labour hire companies were known to be Code-compliant (as he saw that concept) by having had enterprise agreements in place.
336 Mr Darker also submitted that he was merely acting as directed by Mr Dwyer, his superior; he was the messenger rather than the decision-maker.
337 The primary position of Messrs Dwyer and Darker was that their statements were not “threats”. Alternatively, even if they were, they did not relevantly threaten to alter Hughes Demolition’s position or refuse to use its services. The communications merely sought to explore ways to resolve the exposure of the Project to delay. The methods proposed were consistent with Hughes Demolition’s earlier representation that an enterprise agreement was in existence.
338 They submitted that they had rebutted the presumption in s 361 by demonstrating their legitimate reasons for making the statements. Each was made in an endeavour to avoid the risk of industrial disruption, delay and consequential losses. These were the immediate, substantive and operative reasons for their actions. That was so even if they considered that one way to achieve those objectives was for Hughes Demolition to have an enterprise agreement. Seeking to have Hughes Demolition’s earlier representation that it had an EBA made good for those reasons could not result in a contravention of the Act.
339 Their reasons were analogous, they said, to those held to have discharged the reverse onus in ADCO (No 2). This case was not distinguishable. Motivation to avoid delay to a construction program, even arising from industrial disruption, could not be equated with a motivation which impinged on the exercise of the workplace right to have, or not have, an enterprise agreement.
340 Harris Interiors was in a situation brought about by Mr Seckold’s dishonesty. The situation involved the real prospect of industrial disruption leading to delay. Hughes Demolition were already behind in their work. It was not a sustainable proposition that Harris Interiors either had to “suffer in silence” or actively stand between Hughes Demolition and the CFMEU, preventing it from negotiating an enterprise agreement.
341 It was legitimate for Harris Interiors to require Hughes Demolition to act in accordance with its representations that it had an enterprise agreement. Harris Interiors did not require that there be an agreement. Rather it required that the potential for disruption be diffused by continued dialogue. With dialogue there would be no industrial disruption. If there was no industrial disruption, there would be no further delay.
342 Hughes Demolition was already significantly behind, even before any question about its compliance with its representation arose. It was, therefore, clear that the desire to avoid further delay was the immediate and operative reason for the requests that Mr Seckold engage with the CFMEU. Once that dialogue began, and, in particular, once the MBAV advised it was assisting, Harris Interiors was not alleged to have taken any further steps.
343 Mr Silvestro submitted that he did not direct the Hughes Demolition employees not to work on 19 November 2013. In fact, he told them to work and observed them doing so when they commenced unloading tools. It was inconceivable that he would have asked Mr Seckold what was going on if Mr Silvestro had been the one to cause the stoppage. It was also inconceivable when considered in light of the fact that he had told Mr Dunlop that he needed to start work or otherwise leave the Site.
Consideration
Reverse onus — s 361
344 Section 340 proscribes adverse action (as defined in s 342) which is taken against a person because that person has a workplace right, has (or has not) exercised the workplace right, or proposes to (or not to) exercise a workplace right. The meaning of the expression “workplace right” is defined in s 341. This provision appears in Part 3-1 of the Act. As a result, ss 360 and 361 apply to the particular reason or purpose (s 360) for which action is taken under s 340.
345 I am satisfied that the preconditions for the application of s 361 are met by the Commissioner’s pleadings in relation to the action alleged to have been taken by Mr Silvestro: cf Australian Building and Construction Commissioner v Hall [2018] FCAFC 83 at [13], [15]-[19] (Tracey, Reeves and Bromwich JJ).
346 The “particular reason” that Mr Silvestro was said to have taken the adverse action is pleaded at [92] (that Hughes Demolition had not exercised its workplace right or proposed not to do so). The material facts, which show that the alleged action, in combination with the particular reason, would constitute a contravention of s 340, are pleaded at [11] (that Hughes Demolition had not made an enterprise agreement and had a workplace right to do so) and [85]-[88] (the work stoppage) and [89]-[90] (the altering of Hughes Demolition’s position to its prejudice by causing it to fall behind in its work under the contract).
347 As s 361 is engaged Mr Silvestro is presumed, unless he proves otherwise, to have taken the alleged action for a proscribed reason.
348 Nonetheless, s 361 is not engaged where the proscribed conduct extends no further than the making of a threat to take action: see Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (The Quest Apartments Case) [2017] FCA 1398 at [70] (Tracey J) and the cases there cited.
349 This means that the Commissioner has the onus of proving that Messrs Theodorou, Dwyer and Darker made the alleged threats for the “particular reasons” which he alleges.
Alleged contraventions of s 340
Mr Theodorou
350 I accept Mr Seckold’s evidence that he had had a telephone discussion with Mr Theodorou on the afternoon of 15 November 2013. In the course of their conversation Mr Seckold had told Mr Theodorou that he was not in a position, for financial reasons, to sign an enterprise agreement at that time. Mr Theodorou responded by saying: “I am going to make everything very difficult and not let the boys work on the Site.”
351 Mr Theodorou’s response to Mr Seckold constituted, and was understood by Mr Seckold, to be a threat to organise or take industrial action against Hughes Demolition by banning its employees from working on the Site.
352 I am also satisfied that the Commissioner has proved that Mr Theodorou made the threat because Mr Seckold had not agreed to enter into or sign an EBA. On Mr Theodorou’s own case, the statement was made after Mr Seckold had failed to attend two scheduled meetings in which Mr Theodorou expected him to sign an EBA. It is clear, having regard to the context in which the discussion took place, that what Mr Theodorou wanted Mr Seckold to do was to enter into an enterprise bargaining agreement covering Hughes Demolition’s employees working at the Site. The agreement was one which it was intended would become binding under the Act following the completion of the statutory processes. It is, in my view, fanciful for the CFMEU to suggest that the agreement of which Mr Theodorou spoke was anything other than the type of agreement contemplated by the Act. He was using a shorthand expression which was well understood in the industrial relations environment. That agreement, once registered, would have bound Hughes Demolition to provide prescribed wages and conditions to its employees and was enforceable under the Act.
353 By making his threat Mr Theodorou contravened s 340 of the Act.
Mr Dwyer
354 I accept Mr Seckold’s evidence that Mr Dwyer told him, during their conversation on Friday, 15 November 2013, that if he (Mr Seckold) didn’t “sign the EBA with the union, then your boys would not be able to work on the site on [the following] Tuesday.” This was a threat to ban employees of Hughes Demolition from working on the Site on the following Tuesday unless, in the meantime, Hughes Demolition had signed an EBA in a form acceptable to the CFMEU.
355 Mr Dwyer’s attempts at trial to suggest that he was only intending to encourage the continuity of dialogue between Mr Seckold and Mr Theodorou and to offer assistance in providing additional labour are inconsistent with the plain words which he employed and cannot be accepted for the reasons identified by the Commissioner and summarised above at [321].
356 Mr Dwyer was concerned to ensure continuity of work at the Site. Prior to Mr Theodorou’s first attendance in late October Mr Dwyer was not troubled about Hughes Demolition’s failure to provide him (or one of his colleagues) with a copy of an EBA covering work at the Site. Despite the non-production no accusation was made about either Mr Seckold or Mr Loft having made misleading statements about the existence of such a document in the course of the pre-contract discussions. Once Mr Theodorou became involved, however, and, over a period of weeks, had become increasingly agitated by the failure of Mr Seckold to agree to enter into an EBA, to the point where Mr Theodorou “hit the roof”, Mr Dwyer’s attitude changed. The making of the threat was clearly linked to the failure of Hughes Demolition to comply with Mr Theodorou’s demand that Mr Seckold enter an EBA.
357 I have no doubt that Mr Dwyer was concerned about the prospect of disruption to work on the Site unless Hughes Demolition acceded to Mr Theodorou’s demand and that this concern was a factor in Mr Dwyer’s decision to issue the verbal threat to Mr Seckold. If Mr Seckold complied then the risk of industrial disruption would be reduced if not eliminated. Another substantial and operative reason for making the threat was that Hughes Demolition did not have an enterprise agreement with the CFMEU. This is clearly reflected in the terms in which the threat was made.
358 The decision in ADCO (No 2) does not support Mr Dwyer’s claim that he did not act for a proscribed reason. There are a number of material factual differences between that case and the present and there is a finding by the trial judge, based on the evidence given by the decision-makers, that they had not acted for a proscribed reason. In ADCO (No 2) a CFMEU official had threatened the company that, if it retained another company as a sub-contractor, there would be disruption to ADCO construction activities. ADCO told the sub-contractor that it could not work on a site because the CFMEU did not want it to do so. The senior manager of ADCO had said to the sub-contractor: “We can’t tell you to get an EBA but we have been strongly urged to use nominated contractors or someone with a ‘bona fide EBA’” and “We are encouraged to use recognised EBAs”. The CFMEU had made it plain that it was not interested in negotiating an EBA with the sub-contractor. In these circumstances ADCO determined to replace the sub-contractor with another. The other sub-contractor did not have an EBA. The trial judge accepted evidence from the ADCO managers that the sub-contractor’s industrial arrangements played no part in their decision not to engage their services. The managers were not aware of the industrial arrangements and did not direct the sub-contractor to enter into any agreement with the CFMEU. The trial judge accepted evidence that “the sole consideration for [the decision-maker] was to protect ADCO and its clients from a serious risk to its project”: at [153].
359 I should add, for completeness, that I do not accept Mr Dwyer’s contention that Harris Interiors’ principal concern was to ensure that those working on the Site were paid according to industrial regulations and requirements and that a way of achieving this was to ensure that an enterprise agreement was in place. In the absence of an enterprise agreement the relevant award regulated the relationship between Hughes Demolition and its employees engaged on the Site. Mr Dwyer made no enquiry about whether or not Hughes Demolition was complying with that award.
360 By making the threat on 15 November 2013, Mr Dwyer contravened s 340 of the Act.
Mr Darker
361 Mr Darker was the author of the email which he sent to Mr Seckold on 15 November 2013 following Mr Dwyer’s discussion with Mr Seckold earlier that afternoon. The terms of the email appear above at [57].
362 The email was sent at the direction of Mr Dwyer. What I have found in relation to Mr Dwyer’s motivation applies with equal force to that of Mr Darker.
363 The threat made by Mr Darker was even more specifically linked to the failure of Hughes Demolition to enter into an EBA with the CFMEU. Specific reference was made to discussions between Mr Theodorou and Mr Seckold about the signing of an EBA. Consequences were then discussed. If no EBA had been entered into by mid-day on the following Monday Harris Interiors would source “fully compliant labour” or, if this were not possible, it would “find the additional labour to contra-charge accordingly.”
364 A substantial and operative reason for Mr Darker making the threat was the failure of Hughes Demolition to enter into an enterprise agreement with the CFMEU.
365 By making the threat, Mr Darker contravened s 340 of the Act.
Mr Silvestro
366 The Commissioner alleged that Mr Silvestro had taken adverse action against Hughes Demolition by preventing the company’s workers from commencing work at the appointed time on 19 November 2013 and preventing them from working for some hours thereafter.
367 Mr Silvestro denied that he had given any such direction and said that he wanted work to continue. The Hughes Demolition employees had sat in the shed, he said, because of a direction given to them by Mr Dunlop who, in turn, was acting on the instructions of Mr Seckold.
368 Like his colleagues, Messrs Dwyer and Darker, Mr Silvestro was aware, in the week before the 19 November 2013 incident, that Hughes Demolition did not have an EBA with the CFMEU. He had not been “fussed” by this until Mr Theodorou became involved in late October. Thereafter Mr Silvestro was concerned about the risk of disruption to work at the Site if Hughes Demolition did not comply with Mr Theodorou’s demand. He had conversations with Mr Loft and Mr Seckold where he asked about the status of the EBA.
369 As already noted, matters came to a head on 15 November 2013 when threats were made by Messrs Dwyer and Darker. A compliance deadline was set for the rostered day off on Monday, 18 November 2013. No resolution had been achieved by the following morning when the Hughes Demolition’ employees attended for work. Despite his denial I find that Mr Silvestro knew that Mr Theodorou was coming to the Site that morning to talk to the Hughes Demolition employees. In these circumstances I consider it to be more likely than not that Mr Silvestro directed Mr Dunlop that Hughes Demolition’s employees were not to commence work until after Mr Theodorou’s visit. In coming to this conclusion I have had regard to:
The contemporaneous notes taken by Mr Dunlop in which he recorded being directed by Mr Silvestro not to start work.
Mr Dunlop’s subsequent telephone conversations with Messrs Loft and Seckold in which he was seeking advice about how to respond to Mr Silvestro’s direction.
Mr Seckold’s bemusement at what was occurring.
The absence of any plausible reason for Mr Seckold being the person who gave the direction.
Mr Silvestro’s long delay in contacting Mr Seckold about the fact that the Hughes Demolition workers were sitting in the sheds.
370 I regard the evidence relating to the matters of whether Hughes Demolition normally removed expensive equipment from the Site overnight and the conflicting accounts of Messrs Dunlop and Silvestro about what passed between them about unloading the equipment as being of peripheral relevance.
371 A substantial and operative reason for Mr Silvestro’s decision was the failure of Hughes Demolition to sign the EBA. This finding is supported by Mr Dunlop’s note from that day which records that the work was “shut down by union problems about E.B.A.”
372 For these reasons I find that Mr Silvestro contravened s 340 of the Act on 19 November 2013 by directing Mr Dunlop that the employees were not to start work at the appointed time and that they were unable to resume work for some hours.
Mr Theodorou (s 362)
373 The Commissioner claimed that Mr Theodorou was liable under s 362 for Mr Silvestro’s contravention of s 340 on the basis that he had advised, encouraged or incited him to prevent the Hughes Demolition employees from working on 19 November 2013.
374 Section 362 applies if, for a particular reason, a person advises, encourages or incites a second person to take action. If the action, taken by the second person, for the first person’s reason, would constitute a contravention, the first person is taken to have committed the contravention.
375 It may be accepted that Mr Theodorou wanted Hughes Demolition to enter into an enterprise agreement. This is evident from his threat to Mr Seckold, on 15 November 2013, that he would “not let the boys work on the Site” if he did not do so.
376 It may also be accepted that such a reason (wanting Hughes Demolition to enter an EBA, because it had not exercised its workplace right to do so), coupled with Mr Silvestro’s action in stopping the work, would constitute a contravention of s 340.
377 There is, however, no direct evidence that Mr Theodorou advised Mr Silvestro that he should prevent Hughes Demolition’s employees from working on 19 November 2013. Furthermore, there is no evidence that Mr Theodorou otherwise encouraged or incited him to do so. This complaint cannot, therefore, be sustained.
378 The Commissioner alleged that some respondents had contravened ss 343 and 348. These sections provide:
343 Coercion
(1) A person must not organise or take, or threaten to organise or take, any action against another person with intent to coerce the other person, or a third person, to:
(a) exercise or not exercise, or propose to exercise or not exercise, a workplace right; or
(b) exercise, or propose to exercise, a workplace right in a particular way.
Note: This subsection is a civil remedy provision (see Part 4‑1).
(2) Subsection (1) does not apply to protected industrial action.
…
348 Coercion
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.
Note: This section is a civil remedy provision (see Part 4‑1).
379 A person has a “workplace right” if he or she is, relevantly, “able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument”: s 341(1)(b). Section 341(2)(e) provides that “a process or proceedings under a workplace law or workplace instrument” includes “making, varying or terminating an enterprise agreement”.
380 A person “engages in industrial activity”, as defined in s 347(b)(iv), if the person does, or does not “comply with a lawful request made by, or requirement of, an industrial association”.
Pleadings
381 The Commissioner pleaded the following instances of coercion contrary to ss 343 and 348:
(1) Mr Theodorou’s threat on 15 November 2013.
(2) Mr Dwyer’s threat on 15 November 2013.
(3) Mr Darker’s threat on 15 November 2013.
(4) The procuring of the work stoppage by Mr Silvestro on 19 November 2013.
(5) The advising, inciting and/or encouraging by Mr Theodorou of Mr Silvestro to engage in the work stoppage on 19 November 2013 (via s 362).
382 In relation to each of the threats, the Commissioner pleaded that:
(1) As to s 343, they were threats to organise action constituted by preventing Hughes Demolition’s employees from working on the Site. The action threatened by Messrs Dwyer and Darker also involved replacing those employees with workers covered by an enterprise agreement and charging Hughes Demolition accordingly. The threats was made with an intent to coerce Hughes Demolition to exercise its “workplace right” to make an enterprise agreement.
(2) As to s 348, they were made with an intent to coerce Hughes Demolition to engage in “industrial activity” by complying with the CFMEU’s lawful request to make an enterprise agreement.
383 In relation to alleged work stoppage on 19 November 2013, the Commissioner pleaded that Mr Silvestro had:
(1) taken or organised action against Hughes Demolition by preventing its employees from working on site.
(2) caused or organised the work stoppage with an intent to coerce Hughes Demolition to exercise its “workplace right” to make an enterprise agreement (s 343).
(3) caused or organised the work stoppage with an intent to coerce Hughes Demolition to engage in “industrial activity” by complying with the CFMEU’s lawful request that it make an enterprise agreement (s 348).
384 The Commissioner again foreshadowed reliance on ss 360 and 361 of the Act.
385 Each of the respondents denied the alleged contraventions.
Commissioner’s submissions
386 The Commissioner submitted that, in order to establish that a person had engaged in conduct with an intent to coerce, it is necessary to prove that the conduct is: (a) compulsive, in the sense that the pressure it exerts, in a practical sense, negates choice; and (b) unlawful, illegitimate or unconscionable: see, eg, Victoria v Construction, Forestry, Mining and Energy Union (2013) 218 FCR 172 at 187; [2013] FCAFC 160 at [70]-[72] (Buchanan and Griffiths JJ).
387 The Commissioner relied upon Esso Australia Pty Ltd v Australian Workers’ Union (2016) 245 FCR 39; [2016] FCAFC 72 where Buchanan J (with Siopis J agreeing) upheld the reasoning of Jessup J that there is no requirement to establish that the coercing party knew that his or her conduct was unlawful, illegitimate or unconscionable. Whether conduct taken or threatened is unlawful, illegitimate or unconscionable is to be determined objectively. The question is whether the conduct was intended to apply pressure that would negate choice: at 84-89 [174]-[201].
388 The Commissioner submitted that Mr Theodorou’s threat constituted unlawful or unconscionable conduct intended to negate Hughes Demolition’s choice to make an EBA or comply with the CFMEU’s request. He submitted that a threat to engage in (unprotected) industrial action may constitute an intention to coerce an employer from engaging in a particular kind of conduct: cf Cahill v Construction, Forestry, Mining and Energy Union (No 3) (2009) 178 IR 89; [2009] FCA 52. The Commissioner submitted that Mr Theodorou had not given evidence to rebut the presumption in s 361 that he made the threat with the intention to coerce Hughes Demolition to exercise a workplace right to make an EBA to engage in industrial activity by complying with the CFMEU’s request. Mr Seckold was not cross-examined on this point.
389 In relation to Mr Dwyer, the Commissioner submitted that his threat constituted an ultimatum: make an EBA with the CFMEU or lose the contract to perform the works on the Site and pay for Harris Interiors to engage other persons covered by an EBA to finish the job. It was intended to negate Hughes Demolition’s choice as to whether to make an EBA or comply with the request. The threat was unlawful as it constituted adverse action contrary to s 340. It was unconscionable because Hughes Demolition and Harris Interiors had signed a contract which did not require an EBA.
390 The Commissioner noted that the contents of Mr Darker’s email and the fact that he sent it to Mr Seckold were not disputed. The evidence established that Mr Darker only became interested in the existence of Hughes Demolition’s EBA once Mr Theodorou came to the Site in October 2013; prior to this it was never an issue. The email presented an ultimatum intended to negate Hughes Demolition’s choice. He had not discharged his onus under s 361 to prove that he did not make the threat for the alleged reasons and with the alleged intent.
391 The Commissioner submitted that Mr Silvestro’s contravening conduct was constituted by his conversation and conduct with Mr Dunlop on 19 November 2013. In preventing the Hughes Demolition employees commencing work on the Site on that day Mr Silvestro had engaged in conduct with an intent to coerce Hughes Demolition to make an EBA or to comply with the request by the CFMEU.
392 He also submitted that Mr Theodorou had advised, incited and/or encouraged Mr Silvestro to engage in the work stoppage for the proscribed reasons alleged and that he was, therefore, liable under s 362.
393 The Commissioner’s written submission that Mr Theodorou was involved in Mr Silvestro’s contravention of s 343 and 348 may be disregarded because these allegations were not pleaded.
Respondents’ submissions
394 Messrs Darker and Dwyer submitted that their intention was not to coerce Hughes Demolition to exercise of a workplace right to make an enterprise agreement or to engage in industrial activity by complying with a CFMEU request in each case, but rather to seek to keep the project moving and to avoid the risk of industrial disruption, delay and consequential loss.
395 Mr Darker submitted that he did not require or purport to require Hughes Demolition to enter into an enterprise agreement with the CFMEU or any other person. He noted that it was impossible for an agreement be entered into with the CFMEU because, under the Act, enterprise agreements had to be made with employees. He had merely asked Hughes Demolition to comply with the earlier representation that it had an enterprise agreement, and to provide evidence of it to ensure compliance with the Code.
396 Mr Dwyer similarly submitted that he did not require or purport to require Hughes Demolition to enter into an enterprise agreement with the CFMEU. He was solely concerned, in his conversation on 15 November 2013, to ensure that the Project was not delayed.
397 Mr Silvestro challenged the factual basis to the alleged contraventions. He maintained that he did not prevent Hughes Demolition’s employees from performing work on 19 November 2013. On that date, he said, he was informed by Messrs Dunlop and Seckold that Hughes Demolition believed its employees would not be allowed to start work. He indicated to them that they were allowed to (and, in fact, that he expected them to) start work as normal and that they should either commence work or leave the Site. Hughes Demolition’s employees commenced unloading tools prior to the attendance of any CFMEU representative on site.
398 Mr Theodorou submitted that the alleged contraventions of s 348 had not been made out because an essential element of the contraventions — industrial activity — had not been established. This submission turned on the meaning of that term in s 347(b)(iv). The conduct alleged by the Commissioner was not “industrial activity” because it did not concern the participation or activities of people in an industrial association. It did not concern a request of an industrial association to carry out or undertake duties as a member or officer of an industrial association. Nor did it involve the exercise of any representative function of a member or officer. The text, context, and purpose of the provision supported a construction confined to the purpose of protecting and promoting freedom of association. This construction was supported by the explanatory memorandum, which stated that s 347(b)(i) to (v) can:
broadly be described as “participation protections” which cover a broad range of lawful participation activities including: carrying out duties or exercising rights as an officer of an industrial association; and participating in union discussions at the workplace where a union has exercised a right of entry for this purpose.
399 Mr Theodorou did not make any express submissions on the operation of s 362. He again denied that any “accessorial” liability could be attributed to him in relation to Mr Silvestro’s conduct on 19 November 2013 on the basis that he did not know of the alleged contraventions.
Consideration
Reverse onus — s 361
400 Again, it is necessary to consider whether the reverse onus created by s 361 is engaged on the Commissioner’s pleaded case.
401 In Hall at [24] the Full Court endorsed Justice Bromberg’s identification of the “composite effect” of s 361 in relation to both the “reason” and “intention” components of s 343: see Construction, Forestry, Mining and Energy Union v McCorkell Constructions Pty Ltd (No 2) (2013) 232 IR 290 at 343; [2013] FCA 446 at [230]. The operation of s 361 in relation to these two components must, therefore, be considered in relation to ss 343 and 348.
402 As I have mentioned above, s 361 is not engaged where the impugned conduct extends only to the making of a threat to take action. This means that the Commissioner has the onus of proving that Messrs Theodorou, Dwyer and Darker made the alleged threats for the “particular reasons” and with the “particular intents” which are alleged.
403 I turn first to consider the pleaded allegations against Mr Silvestro.
404 The Commissioner has pleaded the “particular reason” that Mr Silvestro was said to have coerced Hughes Demolition:
In relation to s 343, the reason was “to coerce Hughes Demolition to exercise a workplace right, that is, to make an enterprise agreement” (emphasis added) (at [95]).
In relation to s 348, the reason was to “to coerce Hughes Demolition to comply with the CFMEU enterprise agreement request” (emphasis added) (at [97]-[98]).
405 The material facts in relation to s 343 are pleaded at [11] (that Hughes Demolition had not made an enterprise agreement and had a workplace right to do so) and [85] (the work stoppage). These facts are also relevant to s 348. Elsewhere it is pleaded that the CFMEU made a lawful request to Hughes Demolition to make an enterprise agreement (at [22] and [24]). I therefore consider that the Commissioner has the benefit of the reverse onus in relation to the reason that Mr Silvestro is alleged to have engaged in the work stoppage for the purposes of ss 343 and 348.
406 More, however, was required before the Commissioner could claim the full benefit of s 361 in relation to the alleged contraventions of ss 343 and 348 by Mr Silvestro. This is because of the need to establish an intention to coerce. In Hall the Full Court held (at [25]-[26]) that:
25 It is well-established that the expression “intent to coerce” in ss 343 and 355 carries within it a requirement to establish two discrete elements: the negation of choice; and the use of unlawful, illegitimate or unconscionable conduct to do so (see Esso Australia Pty Ltd v Australian Workers’ Union (2016) 245 FCR 39 at 84; [2016] FCAFC 72 at [174] (Buchanan J, with whom Siopis J agreed at [1]). …
26 Furthermore, and most importantly for present purposes, the Full Court also held in Esso that the intent aspect of the expression “intent to coerce” applies to the negation of choice element. This contrasts with the other element, the use of unlawful, illegitimate or unconscionable conduct, which is to be assessed objectively (see Esso at 86-87 [194]). It follows that the relevant particular intent for the purposes of a contravention of ss 343 and 355 is an intent to negate choice. It follows further that, for the presumption in s 361 to operate with respect to a contravention of those sections, the particular intent that must be alleged in the application is an intent to negate choice. Conversely, alleging that the particular intent was an “intent to coerce” creates ambiguity because that expression does not refer to an intent per se, but rather, as discussed above, refers to the two elements of coercion, only one of which relates to the alleged contravener’s intent.
407 It was, therefore, necessary for the Commissioner to allege, in his statement of claim, that Mr Silvestro had an intention to negate choice. The Commissioner has not alleged that Mr Silvestro intended to negate Hughes Demolition’s choice to exercise its workplace right to enter into an enterprise agreement (s 343) or to engage in industrial activity by complying with the CFMEU’s request to make such an agreement (s 348). The Commissioner’s pleading therefore lacked one of the essential elements necessary to accord him the full benefit of the reverse onus provision in s 361.
408 An essential allegation to attract the presumption is, therefore, missing in relation to each of the coercion matters pleaded against Mr Silvestro, at least in relation to the “intention” element of each section.
409 As a result it is necessary to determine whether, on the evidence, the Commissioner has established that the various respondents, against whom allegations are made under ss 343 and 348, acted, on each occasion, with the necessary intention to coerce Hughes Demolition.
410 In Construction, Forestry, Mining and Energy Union v Anglo Coal (Dawson Services) Pty Ltd (2015) 238 FCR 273 at 279; [2015] FCAFC 157 at [27] Jessup J (with whom Rangiah J agreed) held that the question of whether the presumption in s 361 has been displaced fell to be determined at the end of the trial. At that point the Court would undertake an “assessment of all the facts” including, most importantly in the conventional case, his or her assessment of the evidence given by the decision-maker acting on behalf of the employer.”
411 The same temporal considerations apply, in my view, where the Commissioner is unable to rely on the presumption. In other words, the assessment of whether or not the “intent to coerce” element of ss 343 and 348 have been established, are to be made on the basis of all of the evidence called at trial. The question of whether the decision-maker acted with the proscribed intention is one of fact to be answered “in the light of all the facts established in the proceeding”: see Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500 at 517; [2012] HCA 32 at [45] (French CJ and Crennan J).
Alleged contraventions of ss 343 and 348
412 The elements of a contravention of s 343, by reason of that part of the definition of “workplace right” as specified in s 341(1)(b) and 341(2)(e) are:
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 exercise or not exercise the workplace right of making an enterprise agreement.
413 The elements of a contravention of s 348 by reason of that part of the definition of “engages industrial activity” as specified in s 347(b)(iv) are:
the 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 by complying with a lawful request made by an industrial association.
Mr Theodorou
414 As I have found above, I accept that Mr Theodorou made the threat on 15 November 2013. He said to Mr Seckold: “I’m going to make everything very difficult and not let the boys work on the Site.” It was said in response to Mr Seckold relaying that his financial position did not permit him to sign an EBA. I have also found above that this statement was a threat to organise or take industrial action against Hughes Demolition by banning its employees from working on the Site. The first element of ss 343 and 348 is established.
415 As noted, the Commissioner does not have the benefit of the reverse onus under s 361 in relation to Mr Theodorou’s alleged intent. The Commissioner was, therefore, required to prove, on the balance of probabilities, that Mr Theodorou intended to negate Hughes Demolition’s choice to enter into an enterprise agreement (s 343) or comply with the CFMEU’s request to do so (s 348). Intent to negate choice requires that pressure be asserted which is intended to compel the other party to do a particular thing: cf Victoria v Construction, Forestry, Mining and Energy Union (2013) 218 FCR 172 at 187; [2013] FCAFC 160 at [70]-[72] (Buchanan and Griffiths JJ).
416 I am satisfied that Mr Theodorou intended to negate Hughes Demolition’s choice as to whether to enter into an EBA or comply with the CFMEU’s request to do so. The threat foreshadowed that, if the EBA was not signed, he would prevent Hughes Demolition’s employees working on the Site. He would also “make everything very difficult”. These statements, said in response to a refusal to sign an EBA, were clearly designed to exert pressure on Mr Seckold to achieve this goal. Mr Theodorou was the officer who had instigated the request for the EBA in the first instance. He had also made at least one of the misrepresentations to Mr Seckold that Hughes Demolition was required to enter into an EBA to work in the city and that it was required to comply with the CFMEU’s request to do so.
417 I am also satisfied that Mr Theodorou’s threat was unlawful. As I have found above, it constituted adverse action contrary to s 340 of the Act. It is not necessary that Mr Theodorou was aware of the unlawful nature of his communication.
418 The second element of ss 343 and 348 is, therefore, established.
419 Mr Theodorou did not give evidence at trial. The Commissioner bears the onus to prove that he made the threat for a proscribed reason, namely, so that Hughes Demolition would exercise its workplace right to enter into an enterprise agreement (s 343) or so that it would engage in industrial activity by complying with a lawful request made by the CFMEU to enter into an enterprise agreement (s 348). As I have said in relation to s 340, it is clear that Mr Theodorou made the threat to induce Hughes Demolition to enter into an EBA. It is also clear that he made the threat so that Hughes Demolition would comply with the CFMEU’s request that this occur.
420 I do not accept Mr Theodorou’s arguments about the scope of the definition of “industrial activity” in s 348. Section 347(b)(iv) provides that a person “engages in industrial activity” if the person “does, or does not”, “comply with a lawful request made by … an industrial association”. In Esso Australia Pty Ltd v The Australian Workers’ Union (2015) 253 IR 304 at 365; [2015] FCA 758 at [199], Jessup J considered that a company could engage in “industrial activity” within the meaning of that section by not complying with a union request to make an enterprise agreement. See also: Esso Australia Pty Ltd v Australian Workers’ Union (2017) 350 ALR 404 at 424; [2017] HCA 54 at [57] (Kiefel CJ, Keane, Nettle and Edelman JJ); Australian Building and Construction Commissioner v Australian Manufacturing Workers’ Union (The Australian Paper Case) [2017] FCA 167 at [191]-[194] (Jessup J); cf Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (The Bay Street Case) [2018] FCA 83 at [85] (Bromberg J). Consistently with these cases I do not consider that s 347(b)(iv) is confined to requests which have the purpose of protecting and promoting freedom of association as contended by Mr Theodorou.
421 The third element of ss 343 and 348 is thus made out.
422 For these reasons I find that Mr Theodorou contravened ss 343 and 348 on 15 November 2013.
Mr Dwyer
423 I have already found that Mr Dwyer made the alleged statements on 15 November 2013 to Mr Seckold. These statements are set out above at [55]. I have also found that the statements were a threat to ban Hughes Demolition’s employees from working on the Site on the following Tuesday unless, in the meantime, Hughes Demolition had signed an EBA in a form acceptable to the CFMEU. The statements amounted to a threat to take action. The first element of ss 343 and 348 is established.
424 I accept the Commissioner’s submission that Mr Dwyer’s threat presented an ultimatum to Hughes Demolition, namely, to make an EBA or stop work and pay for replacement workers. Mr Dwyer plainly intended, by this threat, to pressure Hughes Demolition to make an EBA and to comply with the CFMEU’s request that one be made. He intended to negate its choice about both those matters. His statements to Mr Seckold demonstrated his awareness that the CFMEU wanted Hughes Demolition to make the EBA. He had stated that Mr Seckold needed to meet with Mr Theodorou and sign the EBA because Mr Theodorou had “hit the roof”. Mr Dwyer was clearly conscious that the CFMEU was the driving force behind the push to make an EBA and that Mr Theodorou was prosecuting the CFMEU’s request that Hughes Demolition make an enterprise agreement.
425 I am also satisfied that Mr Dwyer threat was unlawful. As I have found above, it constituted adverse action contrary to s 340 of the Act. It is not necessary that Mr Dwyer was aware of the unlawful nature of his communication.
426 The second element of ss 343 and 348 is, therefore, established.
427 I am also satisfied that Mr Dwyer made the threat for the proscribed reasons alleged. For the reasons I have given above in relation to s 340, I find that his threat was made so that Hughes Demolition would enter into an EBA. It was also made so that Hughes Demolition would comply with the CFMEU’s request. The third element of ss 343 and 348 is thus made out.
428 For these reasons I find that Mr Dwyer contravened ss 343 and 348 on 15 November 2013.
Mr Darker
429 I have also found that Mr Darker made the statements to Mr Seckold which appeared in his email to him of Friday 15 November 2013. The email appears above at [57]. It was sent shortly after Mr Dwyer’s conversation with Mr Seckold on Mr Dwyer’s direction. It was a threat to take action the following Tuesday to prevent Hughes Demolition’s employees working on the Site. The first element of ss 343 and 348 is established.
430 I am also satisfied that the Commissioner has proven that Mr Darker sent the email with the intention to negate Hughes Demolition’s choice as to whether to enter into an enterprise agreement (s 343). The email, which was sent on the Friday evening, reflected the ultimatum already imposed by Mr Dwyer. If, by midday on Monday, Hughes Demolition discussions with Mr Theodorou had not progressed to the point that an EBA was signed then “fully compliant labour” would “be required” to be sourced for the work on Tuesday. If Hughes Demolition did not source the labour then Harris Interiors would then pass the cost of doing so to Hughes Demolition. Mr Darker also intended to negate Hughes Demolition’s choice as to whether to comply with the CFMEU’s request (s 348). His reference to Mr Theodorou in his email demonstrates an awareness that the CFMEU had requested, and was prosecuting its request, that Hughes Demolition enter into an EBA.
431 As I have held above, Mr Dwyer’s threat constituted adverse action. It was unlawful for that reason.
432 The second element of ss 343 and 348 is, therefore, established.
433 The Commissioner has also proved that Mr Darker made the threat for the proscribed reasons alleged. For the reasons which I have given above in relation to s 340, I find that Mr Darker made the threat so that Hughes Demolition would make an EBA. I also find that he made the threat so that Hughes Demolition would comply with the CFMEU’s request. The third element of ss 343 and 348 is thus made out.
434 For these reasons I find that Mr Darker contravened ss 343 and 348 on 15 November 2013.
Mr Silvestro
435 As noted above, I am satisfied the Mr Silvestro took action against Hughes Demolition by stopping its employees from working on the morning of 19 November 2013. The first element of ss 343 and 348 is therefore satisfied.
436 I am, however, not satisfied that Mr Silvestro had the requisite intent to coerce. The Commissioner does not enjoy the benefit of the reverse onus in relation to this element. He was required to prove that Mr Silvestro intended to negate Hughes Demolition’s choice. As Barker J stated in Australian Building and Construction Commissioner v Upton (The Gorgon Project Case) (2017) 270 IR 190 at 226; [2017] FCA 847 at [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; 102 IR 359 at [45]; John Holland Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (2009) 174 FCR 526; 180 IR 314 at [42].
437 Mr Silvestro was not directly involved in the demands that Mr Seckold sign an EBA. He had spoken with Mr Seckold from time-to-time for an update about progress on the EBA situation. He was also copied in on the emails which Mr Darker sent on 22 and 23 October 2013 so he was aware that requests for its production had been made. While he held a general view that an agreement was important for compliance with the Code, he was indifferent as to whether such an agreement was a “CFMEU” agreement. I have found above that he knew that Mr Theodorou was coming to the Site on the morning of 19 November 2013 to talk to employees of Hughes Demolition. He did not want work to be interrupted. He wanted to accommodate Mr Theodorou’s access to the workers. Mr Dunlop agreed that at one point that morning Mr Silvestro told him to commence work or leave the Site.
438 I accept that the requisite intention may be one of several other purposes of objectives: see Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2018] FCA 42 at [35] (Flick J). Nevertheless, I do not consider that the evidence rises to the point where it may be concluded that Mr Silvestro had a substantial or operative intent to remove Hughes Demolition’s choice to make, or not make, an enterprise agreement or whether to accede to the union’s request that he do so.
439 In any event, I do not consider that, in directing the Hughes Demolition workers not to commence work, Mr Silvestro was applying the strong pressure that was required for his conduct to be regarded as coercive. The work stoppage lasted for only a few hours during which time the employees sat in a shed on site. Some of that time work overlapped with or, at least, immediately preceded the morning tea or smoko break. They soon recommenced work. No EBA had been signed.
440 The day before the work stoppage, on Monday 18 November 2013, Mr Seckold had engaged the MBAV to negotiate with the CFMEU on an EBA. Mr Theodorou was told of this engagement the next day by an email from Mr Dwyer which was sent at 11.45 am on Tuesday 19 November 2013. On the Commissioner’s case this occurred after the time which he claimed work recommenced, namely at 10.30 am that day.
441 I do not consider that the work stoppage constituted pressure of the sort which removed Hughes Demolition’s realistic choice as to whether or not to make an EBA. As Barker J stated in The Gorgon Project Case at 227 [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; 114 IR 20 at [103]-[104].
442 For these reasons, I do not consider that Mr Silvestro has contravened ss 343 or 348.
Mr Theodorou (s 362)
443 The Commissioner claimed that Mr Theodorou had contravened ss 343 and 348 because he had advised, encouraged or incited Mr Silvestro to prevent the Hughes Demolition employees from working on 19 November 2013. He relied on s 362 to establish these contraventions by Mr Theodorou.
444 The Commissioner again confronts the difficulty which he did in relation to his reliance upon this section to attribute to Mr Theodorou the adverse action engaged in by Mr Silvestro. That is, there is an absence of direct evidence that Mr Theodorou advised, encouraged or incited Mr Silvestro to prevent these employees working. Absent such evidence, this complaint cannot be sustained.
445 The Commissioner alleged that, by engaging in the work stoppage on 19 November 2013, Mr Silvestro discriminated against Hughes Demolition contrary to s 354. Mr Theodorou was also said to be liable for Mr Silvestro’s contravention via ss 362 and 550.
446 Section 354 relevantly provides:
354 Coverage by particular instruments
(1) A person must not discriminate against an employer because:
(a) employees of the employer are covered, or not covered, by:
…
(iii) an enterprise agreement that does, or does not, cover an employee organisation, or a particular employee organisation; or
(b) it is proposed that employees of the employer be covered, or not be covered, by:
…
(ii) an enterprise agreement that does, or does not, cover an employee organisation, or a particular employee organisation.
Note: This subsection is a civil remedy provision (see Part 4‑1).
(2) Subsection (1) does not apply to protected industrial action.
447 Section 550 relevantly provides:
550 Involvement in contravention treated in same way as actual contravention
(1) A person who is involved in a contravention of a civil remedy provision is taken to have contravened that provision.
…
(2) A person is involved in a contravention of a civil remedy provision if, and only if, the person:
…
(c) has been in any way, by act or omission, directly or indirectly, knowingly concerned in or party to the contravention; or
…
Pleadings
448 The Commissioner pleaded that the work stoppage on 19 November 2013 amounted to discrimination against Hughes Demolition. By preventing its employees from performing work on the Site, Mr Silvestro had subjected it to a burden or adversity as it was unable to perform the work it was contracted to do. It therefore fell behind in its work on the Project.
449 Mr Silvestro was said to have caused the stoppage because the employees were not, or it was proposed that they would not be, covered by an enterprise agreement. Mr Silvestro denied that he had contravened s 354.
450 The Commissioner pleaded that Mr Theodorou was liable under s 362(1) on the basis that he had advised, incited and/or encouraged Mr Silvestro to engage in the work-stoppage. He also pleaded that Mr Theodorou was “involved in” the contravention as he was directly, or indirectly, knowingly concerned in, or a party to, Mr Silvestro’s contravention for the purposes of s 550(1) and (2)(c). Mr Theodorou denied all liability.
Commissioner’s submissions
451 The Commissioner submitted that s 354 replicates the former s 45 of the Building and Construction Industry Improvement Act 2005 (Cth). That section was considered in Australian Building and Construction Commissioner v McConnell Dowell Constructors (Aust) Pty Ltd (2012) 203 FCR 345; [2012] FCAFC 93 where the Full Court upheld a decision that, to establish discrimination, it was necessary to identify a burden or adversity imposed upon the victim of the alleged discrimination: 349-351 [18], [25]-[26] (Buchanan J), 361-362 [68]-[75] (Flick J), 369 [111]-[112] (Katzmann J). He also relied upon Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (The Abseal Case) (2017) 266 IR 204; [2017] FCA 11 where Jessup J said that to “discriminate” means to treat a person in a prejudicial way: at 229 [82].
452 He submitted that Mr Silvestro had discriminated against Hughes Demolition by causing the work stoppage. Mr Silvestro had conceded in cross-examination that no other subcontractor employees were prevented from working that day. This suggested that the Hughes Demolition employees were treated differently from others on the Site. He had not discharged his onus under s 361 to prove that he did not stop the work because they were not covered by an EBA. The work stoppage imposed a burden or adversity on Hughes Demolition as the lost time caused it to fall further behind its work schedule.
453 The Commissioner contended that Mr Theodorou was involved in Mr Silvestro’s contraventions pursuant to s 550(2). He was an intentional participant based on his knowledge of the essential facts constituting the contravention or, he was, at least, wilfully blind: see Yorke v Lucas (1985) 158 CLR 661 at 666-667 (Mason ACJ, Wilson, Deane, Dawson JJ). He knew the employees had been prevented from working. He knew that Mr Silvestro had prevented them from doing so because Hughes Demolition lacked an EBA and because Mr Silvestro wished to force it to make one or conform to the CFMEU’s request that it do so.
454 Mr Theodorou’s knowledge could be inferred from the following. On 19 November 2013, he knew that Hughes Demolition did not have an EBA and proposed not to enter one. He had threatened both Harris Interiors and Hughes Demolition that, if the latter did not make an EBA, its employees would be prevented from working on 19 November 2013. He attended the Site on 19 November to discuss, with Hughes Demolition’s employees, the possibility of Hughes Demolition making an EBA. This was the same morning that Mr Silvestro stopped the work.
455 It could be inferred that Mr Theodorou acted in concert with Harris Interiors to arrange for Harris Interiors to prevent the Hughes Demolition employees from working on the Site. That inference, he said, was strengthened by his failure to give evidence: McCollough at [151]-[154] (Barker J).
456 The Commissioner also submitted that Mr Theodorou was liable (pursuant to s 362(1)) by advising, inciting and encouraging Mr Silvestro’s conduct on 19 November 2013.
Respondents’ submissions
457 Mr Silvestro submitted that he had not contravened s 354 because he did not prevent the employees from working. He relied on the same evidence to support his denial as he had done in relation to the coercion claims made against him. He again relied upon ADCO (No 2) at [102]-[106] and [186]-[187].
458 Mr Theodorou submitted that s 550 was not engaged as he had no knowledge of the alleged contravention. When he attended on 19 November 2013 it was morning tea or “smoko” time. It was, therefore, unsurprising that the employees were not working. Mr Silvestro had been content for him to attend and speak to the employees during breaks. There was no evidence of his knowledge of the fact of or reasons for any stoppage. Absent clear evidence as to who directed it, the Court should not draw an inference of that he knew of it. The employees returned to work shortly after his attendance; this told against an inference that he was complicit in any contravention. His submissions did not expressly confront the Commissioner’s case in so far as it was founded on s 362.
Consideration
Reverse onus — s 361
459 Again, I commence by confirming that the reverse onus in ss 361 is engaged on the Commissioner’s pleaded case. The “particular reason” that Mr Silvestro was said to have discriminated against Hughes Demolition is pleaded at [101] of the amended statement of claim (that the Hughes employees were, or it was proposed that they would not be, covered by an EBA).
460 The material facts, which show that the alleged action, in combination with the particular reason, would constitute a contravention of s 354, are pleaded at [11] (that Hughes Demolition had not made an enterprise agreement), [85] (the work stoppage) and [100] (the burden or adversity caused by the discriminatory conduct).
461 As a result the preconditions for the application of s 361 are met in relation to Mr Silvestro’s alleged contravention of s 354.
Mr Silvestro
462 For the reasons given in relation to the adverse action claims made against him (see above at [368]-[371]) I have found that Mr Silvestro directed that the Hughes Demolition employees should not work on the morning of 19 November 2013 and that, as a result, they did not do so for some hours. Hughes Demolition suffered a detriment by reason of the delay to its timetable that day. No such direction was given to any other sub-contractors’ employees on that morning. He thereby discriminated against Hughes Demolition.
463 It was alleged against him that he had so acted because those employees were not covered by a particular type of workplace instrument, an enterprise agreement.
464 I do not consider that Mr Silvestro has proven that he did not act for this reason. It is, therefore, to be presumed that he did so.
465 For these reasons I find that Mr Silvestro contravened s 354 on 19 November 2013.
Mr Theodorou
466 An allegation that a person has contravened a civil remedy provision of the Act is serious. An adverse finding will render the person liable for a monetary penalty. Such contraventions are treated as being “quasi-criminal”. As a result the provisions of s 140(1) and (2) of the Evidence Act 1995 (Cth) establish the standard of proof which is required to make good such an allegation. Adverse findings are not lightly to be made particularly where, as in a case such as the present, those findings are sought on the basis of inferences rather than direct evidence: see Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2018] FCA 42 at [60]-[62] (Flick J).
467 I am not satisfied Mr Theodorou was involved in Mr Silvestro’s contravention of s 354.
468 Mr Theodorou was not present at the Site when Mr Silvestro gave the direction that the Hughes Demolition employees were not to commence work. There was no direct evidence that he had any foreknowledge that such a direction was to be given. This is so despite his earlier threat on 15 November 2013 that he would not let the boys work on the Site. His arrival on the Site coincided with or, at least, immediately preceded a scheduled work break for the Hughes Demolition employees. It was hardly surprising then that he found them in the sheds. Not long afterwards the workers either commenced work for the day or resumed work.
469 In these circumstances I am not prepared to infer that Mr Theodorou had knowledge of Mr Silvestro’s decision to prevent the commencement of work. Section 550 is not engaged.
470 Nor am I satisfied that Mr Theodorou advised, encouraged or incited Mr Silvestro to take such action for the purposes of s 362.
471 It has not been established that Mr Theodorou has contravened s 354.
472 The Commissioner pleaded that the CFMEU was liable for the contraventions of:
(1) ss 345 and 349 (misrepresentation) by Mr Theodorou on 23 October 2013.
(2) ss 345 and 349 (misrepresentation) by Mr Theodorou or Mr Reardon in October 2013.
(3) ss 340 (adverse action), 343 and 348 (coercion) by Mr Theodorou on 15 November 2013.
(4) ss 340 (adverse action), 343, 348 (coercion) and 354 (discrimination) by Mr Theodorou (via s 362, and, in the case of s 354, s 550) for the work stoppage caused by Mr Silvestro on 19 November 2013.
473 The claimed bases for the CFMEU’s liability were that, under the common law and s 793, Mr Theodorou had actual, apparent or ostensible authority to engage in the impugned conduct on behalf of the CFMEU. Under s 363, his conduct was to be taken to be conduct of the CFMEU because, as a CFMEU representative, he was acting as one of its officers or agents.
474 In relation to the first, third and fourth sets of contraventions listed at [472], the Commissioner relied upon the common law and s 793 as well as s 363. In relation to the second set of contraventions listed the Commissioner confined his case to s 363.
475 The CFMEU admitted that action taken by its officers in that capacity is taken to be its action. It denied liability on the basis that none of the primary contraventions had been established.
476 Section 363 relevantly provides:
363 Actions of industrial associations
(1) For the purposes of this Part, each of the following is taken to be action of an industrial association:
…
(b) action taken by an officer or agent of the industrial association acting in that capacity;
…
…
(3) If, for the purposes of this Part, it is necessary to establish the state of mind of an industrial association in relation to particular action, it is enough to show:
(a) that the action was taken by a person, or a group, referred to in paragraphs (1)(a) to (e); and
(b) that the person, or a person in the group, had that state of mind.
(4) Subsections (1) to (3) have effect despite subsections 793(1) and (2) (which deal with liabilities of bodies corporate).
477 Section 793 provides:
793 Liability of bodies corporate
Conduct of a body corporate
(1) Any conduct engaged in on behalf of a body corporate:
(a) by an officer, employee or agent (an official) of the body within the scope of his or her actual or apparent authority; or
(b) by any other person at the direction or with the consent or agreement (whether express or implied) of an official of the body, if the giving of the direction, consent or agreement is within the scope of the actual or apparent authority of the official;
is taken, for the purposes of this Act and the procedural rules, to have been engaged in also by the body.
State of mind of a body corporate
(2) If, for the purposes of this Act or the procedural rules, it is necessary to establish the state of mind of a body corporate in relation to particular conduct, it is enough to show:
(a) that the conduct was engaged in by a person referred to in paragraph (1)(a) or (b); and
(b) that the person had that state of mind.
Meaning of state of mind
(3) The state of mind of a person includes:
(a) the knowledge, intention, opinion, belief or purpose of the person; and
(b) the person’s reasons for the intention, opinion, belief or purpose.
…
Consideration
478 The Commissioner relies on ss 363 and 793 of the Act to attribute liability to the CFMEU. Justice Flick in Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2018] FCA 42 at [51] summarised the object of s 793 as follows:
[It] is directed to identifying those circumstances in which a body corporate is to be “taken … to have been engaged” in conduct pursued by (for example) “an officer, employee or agent”. The heading to that section is “Liability of bodies corporate”. It is thus a section clearly directed at sheeting home to a body corporate “liability” for the conduct of others.
479 I have found that Mr Theodorou contravened ss 345 and 349 on 23 October 2013. I have also found that he contravened s 340, 343 and 348 on 15 November 2013. In making the impugned representations, taking the adverse action, and engaging in the coercion, Mr Theodorou was acting within the scope of his actual or apparent authority as an officer of the CFMEU. It follows, in accordance with s 793(1) of the Act, that the CFMEU is also taken to have engaged in Mr Theodorou’s misconduct and thereby contravened ss 340, 343, 345, 348 and 349.
480 The contravention of ss 345 and 349 in late October 2013 occurred because either Mr Theodorou or Mr Reardon made a misrepresentation in the course of their dealings with Mr Seckold. The Commissioner was unable to establish which of these officials had made the representation. As a result the Commissioner only sought to establish liability, on the part of the CFMEU, for these contraventions by resort to s 363(1)(b). I am satisfied that the representation was made. I am also satisfied that it was made by a CFMEU official. The making of the misrepresentation is taken to be the action of the CFMEU because it was made by one of its officials acting in that capacity.
481 The CFMEU is not liable for the contraventions listed above at [472(4)] because I have found that the allegations against Mr Theodorou have not been established:
In relation to the claims of adverse action contrary to s 340 and coercion contrary to ss 343 and 348 I have found that Mr Theodorou did not advise, incite or encourage (s 362) Mr Silvestro to procure the work stoppage on 19 November 2013.
In relation to the claim of discrimination contrary to s 354 I have found that Mr Theodorou was not involved in (s 550), and did not advise, incite or encourage (s 362), Mr Silvestro to procure the work stoppage on 19 November 2013.
482 The Commissioner pleaded that Harris Interiors was liable for the contraventions of:
(1) ss 340 (adverse action), 343 and 348 (coercion) by Mr Dwyer on 15 November 2013.
(2) ss 340 (adverse action), 343 and 348 (coercion) by Mr Darker on 15 November 2013.
(3) ss 340 (adverse action), 343, 348 (coercion) and 354 (discrimination) occasioned by Mr Silvestro’s direction on 19 November 2013.
(4) ss 343 and 348 (coercion) by, collectively, the threats of Messrs Dwyer and Darker and Mr Silvestro’s direction (“the alternative claim”).
Commissioner’s submissions
483 The Commissioner submitted that, under the common law and s 793, Messrs Dwyer, Darker and Silvestro had actual, apparent or ostensible authority to engage in the impugned conduct for and on behalf of Harris Interiors.
484 If the Court failed to find that their individual conduct amounted to coercion, then it should find that it collectively amounted to action engaged in by Harris Interiors, though its human agents, which was intended to coerce Hughes Demolition contrary to ss 343 and 348. Coercive conduct could be found in a course of conduct. Counsel emphasised that this was an alternative argument; he was not asking the Court to find both single and collective contraventions.
Harris Interiors’ submissions
485 Harris Interiors accepted that Messrs Dwyer, Darker and Silvestro were acting within the scope of their actual and apparent authority at all times and that, therefore, their actions were to be taken to be those of Harris Interiors. It nevertheless denied all of the alleged contraventions.
486 The “alternative claim” added nothing, it submitted, to the existing vicarious liability claims for the individual alleged contraventions. Counsel relied, to the extent that it was relevant, on the fact that intent was to be judged on an individual rather than a group basis: Geelong Wool Combing Ltd v Textile, Clothing and Footwear Union of Australia (2003) 130 FCR 447 at 454; [2003] FCA 773 at [17] (Finkelstein J).
Consideration
487 There was no dispute that, at relevant times, Messrs Darker, Dwyer and Silvestro were acting within the scope of their actual and apparent authority as employees of Harris Interiors and that their actions were to be taken to be those of the company.
488 Accordingly, their conduct, to the extent to which it gave rise to contraventions of the Act, is to be taken to have been engaged in by Harris Interiors and to have caused Harris Interiors itself to also contravene the Act.
489 It is not necessary that I deal with the Commissioner’s alternative claim.
490 The third to sixth respondents, the Harris respondents, sought an order for costs in relation to the Commissioner’s decision to not call Mr Woods for cross-examination.
491 They relied upon s 570(2)(b) of the Act. That section provides:
570 Costs only if proceedings instituted vexatiously etc.
(1) A party to proceedings (including an appeal) in a court (including a court of a State or Territory) in relation to a matter arising under this Act may be ordered by the court to pay costs incurred by another party to the proceedings only in accordance with subsection (2) or section 569 or 569A.
Note: The Commonwealth might be ordered to pay costs under section 569. A State or Territory might be ordered to pay costs under section 569A.
(2) The party may be ordered to pay the costs only if:
(a) the court is satisfied that the party instituted the proceedings vexatiously or without reasonable cause; or
(b) the court is satisfied that the party’s unreasonable act or omission caused the other party to incur the costs; or
(c) the court is satisfied of both of the following:
(i) the party unreasonably refused to participate in a matter before the FWC;
(ii) the matter arose from the same facts as the proceedings.
492 They also sought disbursements under the Federal Court Rules 2011 (Cth) Sch 3 cl 18.
Background
493 The application was supported by emails handed up at trial. The Commissioner’s counsel also handed up two emails with attachments. The tender of the emails was not challenged. I am prepared to rely upon them for the purposes of this application.
494 In April 2015 the solicitors for the Harris respondents filed and served Mr Woods’ affidavit.
495 By email of 4 February 2016, the solicitors for the Harris respondents asked the other parties which witnesses they wanted to cross-examine, noting that Mr Woods was in the United Kingdom. The next day, on 5 February 2016, the Commissioner indicated via email that he would cross-examine all witnesses and that he did not object to a video link.
496 On 2 and 3 February 2017 the solicitors for the Harris respondents corresponded via email with the other parties, including the Commissioner, as to the timing of a video link for Mr Woods.
497 On 6 February 2017 at 5.17 pm the Harris respondents served their submissions via email.
498 Later that day, at 5.20 pm, the solicitors for the Harris respondents emailed chambers to request leave for Mr Woods to appear via video link. They indicated that the other parties consented and that they proposed to use Video Conferencing London (“VCL”).
499 Later that same evening, VCL emailed the Harris respondents’ solicitors to advise that it needed full payment upfront. The booking was confirmed the next day on 7 February 2017. The next evening, on 8 February 2017, VCL confirmed that it had received a payment of £720.
500 Earlier on 8 February 2017, at 9.39 am, the Harris respondents served their list of authorities.
501 On 10 February 2017 at 11.29 am the Commissioner’s solicitors informed the solicitors for the Harris respondents via email that, “[i]n preparation for hearing, the Applicant has determined that it does not require Mr Woods for cross-examination.” The email continued:
The Applicant is content for Mr Woods’ affidavit evidence to be tendered in Court without him appearing by videolink (subject to the amendment to paragraph 35 of his affidavit to use the alternative working suggested by your response to evidentiary objections). If the Respondents agree with the Applicant’s proposed approach, we ask that you inform the Court and cancel the videolink.
502 The video link was cancelled. The Court was informed that VCL refunded half the costs. In the afternoon of 10 February 2017 the solicitors for the Harris respondents wrote to the Commissioner’s solicitors to request that he consent to a costs order. He did not consent.
Harris respondents’ submissions
503 The Harris respondents submitted that Commissioner’s unreasonable act or omission caused them to incur costs and disbursements when preparing for Mr Woods’ cross-examination.
504 They had relied on his representation of 5 February 2016 that “all witnesses” were required. Between that date and 10 February 2017 they prepared for trial, held witness conferences with Mr Woods, communicated with the Court, and engaged VCL.
505 During that period the Commissioner was in communication with the parties. Despite this, it was not until 10 February 2017 (the last business day before trial) that he advised that his position on Mr Woods had changed. This delay was unexplained and unreasonable.
506 The Commissioner could not avoid the costs consequences of this reversal by technical temporal arguments. Section 570 was a causal provision. It was accepted that the costs were incurred before the notification. The notification, however, could not be divorced from the preceding conduct, including the initial representation. In light of his “backflip” it was unreasonable that they had incurred those costs.
507 This case was distinguishable from those where costs should not be awarded because to do so would dissuade applicants from bringing meritorious claims. It was appropriate to award costs in this case as they were incurred as a result of the Commissioner not having his house in order.
Commissioner’s submissions
508 The Commissioner submitted that the Harris respondents’ submission and authorities, served on 6 and 8 February 2017 respectively, were critical to his decision no longer to require Mr Woods for cross-examination. That was why he had not earlier advised of his position.
509 At that point it became clear that the Harris respondents’ case centred on ADCO (No 2). The issues of pre-contract representations about the EBA were less relevant. Mr Woods’ evidence was most relevant to the pre-contract meetings. He had no involvement in CFMEU discussions. The Commissioner formed the view that Mr Woods’ evidence would not be adverse to his position. He could distinguish ADCO (No 2) without testing such evidence.
510 The Court’s discretion to award costs is only enlivened if it finds that an unreasonable act caused the costs to be incurred. This power should not be exercised with haste so as to discourage parties from pursuing litigation under the Act in a manner which they deem best: see Construction, Forestry, Mining and Energy Union v Clarke (2008) 170 FCR 574 at 582; [2008] FCAFC 143 at [29] (Tamberlin, Gyles and Gilmour JJ). This included forensic decisions on cross-examination.
511 He relied upon Ashby v Slipper (No 2) (2014) 314 ALR 84 at 89; [2014] FCAFC 67 at [35] where Mansfield, Siopis and Gilmour JJ said “costs will rarely be awarded under the section and exceptional circumstances are required to justify the making of such an order”, citing Council of Kangan Batman Institute of Technology and Further Education v Australian Industrial Relations Commission (2006) 156 FCR 275 at 289; [2006] FCAFC 199 at [60] (Black CJ, North and Mansfield JJ).
512 His decision to not require Mr Woods’ attendance was neither exceptional nor unreasonable. The London factor was the only possible source of unreasonableness; the notification would be unremarkable otherwise. Even if the notification was unreasonable, the costs incurred were not caused by the Commissioner. He did not cause Mr Woods to be outside of the jurisdiction.
513 Merely because the Commissioner no longer required Mr Woods to appear did not mean that the witness conferences would not have occurred. They were not caused by his conduct, let alone any unreasonable conduct.
Consideration
514 Section 570(1) strictly limits the circumstances in which the Court may award costs in a proceeding under the Act. Such costs may be awarded, pursuant to s 570(2)(b), if “the court is satisfied that the party’s unreasonable act or omission caused the other party to incur costs”.
515 I am not satisfied that the Commissioner’s decision, not to require Mr Woods to appear for cross-examination, made on 10 February 2017, caused the Harris Interiors parties to incur the costs of conferences with Mr Woods or the pre-payment to VCL for the scheduled video link.
516 More significantly, in my opinion, the timing of the Commissioner’s forensic decision and his notification to the solicitors acting for the Harris respondents cannot be characterised as unreasonable. The decision was conveyed within four days of the service of the Harris respondents’ written submissions. Those submissions clarified certain issues which the Commissioner determined rendered it unnecessary to cross-examine Mr Woods.
517 It is a regular occurrence, in the course of litigation, that parties change their positions, both substantively and procedurally, in the light of pre-trial developments and things that occur in the running of a trial. Had the Commissioner decided at trial that he no longer wished to cross-examine Mr Woods because, for example, of concessions made under cross-examination by other witnesses called by Harris Interiors, such a decision could hardly be described as unreasonable. Indeed the contrary would be true; court time would not be wasted pursuing factual issues which were no longer in dispute. This is no less true of decisions made before the trial commenced.
518 This is not one of the rare cases in which it would be appropriate, in the exercise of the Court’s discretion, to make a costs order.
519 The Harris Interiors’ application for costs must be refused.
520 I will give directions for the parties to make submissions relating to the relief sought by the Commissioner for the various contraventions of the Act which I have found to have occurred.
I certify that the preceding five hundred and twenty (520) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tracey. |
VID 523 of 2014 | |
CARMELO SILVESTRO | |
Fifth Respondent: | SHANNE DARKER |
Sixth Respondent: | JASON DWYER |
