FEDERAL COURT OF AUSTRALIA

Patrick Stevedores Holdings Pty Limited v Construction, Forestry, Maritime, Mining and Energy Union [2019] FCA 451

ORDERS

THE COURT ORDERS THAT:

1.    The parties bring in short minutes of order to reflect the reasons for judgment at a case management hearing to be listed at 9.30am on 16 April 2019.

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

ORDERS

THE COURT ORDERS THAT:

1.    The parties bring in short minutes of order to reflect the reasons for judgment at a case management hearing to be listed at 9.30am on 16 April 2019.

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

REASONS FOR JUDGMENT

LEE J:

A    INTRODUCTION

1    There are two proceedings before the Court.

2    But for the reorganisation of the Maritime Union of Australia (MUA) and the statutory substitution of the Construction, Forestry, Maritime, Mining and Energy Union as the first respondent in both proceedings, the style of cause of this matter would have stirred the memory of industrial lawyers of famed battles past. Unlike its famous 1998 predecessor, however, this dispute is of a much more limited and narrow focus.

3    The first proceeding (Patrick Proceeding) was commenced by Patrick Stevedores Holdings Pty Limited (Patrick Holdings) and a related company, Patrick Stevedores Operations Pty Ltd (Patrick Operations), being the main trading entity of the corporate group that conducts a business of operating container stevedoring terminals, including at Port Botany, in New South Wales (Terminal). Patrick Holdings employs those carrying out stevedoring operations at the Terminal (employees) including employees who were rostered to work in the rail yard within the Terminal (rail employees), and Patrick Operations contracts with external service providers at the Terminal and with rail and stevedoring customers. Unless it is necessary to distinguish between entities in the group, I will refer to these entities collectively as Patricks.

4    The second proceeding (Qube Proceeding) was commenced by Qube Logistics (NSW) Pty Ltd, Qube Logistics (SB) Pty Ltd and Qube Logistics (Rail) Pty Ltd (collectively, Qube). The companies are involved in the business of providing transport logistics services to importers and exporters in relation to containerised and other freight. The transport logistics services include the transportation of containerised and other freight and empty containers by road and rail to locations within Australia as required by the customers of Qube.

5    As I have already noted, the Construction, Forestry, Maritime, Mining and Energy Union is the first respondent in both proceedings. By an amalgamation in March 2018, the MUA was deregistered and the Construction, Forestry, Maritime, Mining and Energy Union was formed as the “amalgamated organisation” of which members of the MUA became members (for a discussion of the details of the process of amalgamation see Australian Mines and Metals Association Inc v Construction, Forestry, Maritime, Mining and Energy Union [2018] FCAFC 223). Relevantly, for present purposes, s 79(a) of the Fair Work (Registered Organisations) Act 2009 (Cth) operates so as to substitute the amalgamated organisation as a respondent in both proceedings: see s 79(b). For the sake of convenience, unless the context requires otherwise, I will refer to the first respondent to both proceedings as the Union.

6    At all relevant times, the second respondent (Mr Paul McAleer), was the Secretary and the third respondent (Mr Paul Keating), was the Deputy Secretary, of “the Sydney Branch of the Maritime Union of Australia”. Approximately 90% of the employees are members of the Union.

7    In the Patrick Proceeding, it is alleged that the Union and Mr McAleer organised and were involved in industrial action that took place at the Terminal during various shifts between 20 April and 1 May 2017. As against Mr Keating, it is said that he organised and was involved in industrial action during the day shift on 1 May 2017. During the period between 20 April and 1 May 2017, it is alleged, a ban, limitation and restriction was imposed on the performance of work by the rail employees; additionally, it is said, for three consecutive shifts beginning with the evening shift of 20 April 2017, there was a failure and refusal of almost all employees at the Terminal to perform any work. For reasons expanded upon below, it is contended that the Union and Mr McAleer each contravened ss 417(1), 421(1), 340(1) and 343(1) of the Fair Work Act 2009 (Cth) (FW Act). The same allegations are made against Mr Keating, but limited to the day shift on 1 May 2017.

8    Similarly, in the Qube Proceeding, it is alleged the same employees engaged in industrial action within the meaning of s 19(1) of the FW Act on a number of occasions during the period commencing with the 20 April 2017 day shift, and ending with the night shift, on 8 May 2017 and that the Union and Mr McAleer organised the industrial action or were involved in the action within the meaning of s 550 of the FW Act. The same allegations are made against Mr Keating limited to the day shift on 1 May 2017, as in the Patricks Proceeding.

9    A bewildering and complex range of relief is sought, but it is unnecessary to deal with it all in this judgment. Following complaints made about the tardy service of material going to issues of loss said to have been occasioned by the alleged contravening conduct, on 20 July 2018, I made orders pursuant to s 37P(2) of the Federal Court of Australia Act 1976 (Cth), which, in effect, provided for the deferral of all issues of pecuniary penalty, injunctive relief and compensation. Accordingly, the initial hearing was directed to the issue of whether the applicants had established that the respondents engaged in the contraventions of the FW Act alleged. I will address the question as to whether such contraventions have been established under the following headings:

    Section B    Observations on the Evidence

    Section C    The Relevant Events: Findings

    Section D    The Case of Patricks and Qube

    Section E    An Overview of the Contentions of the Respondents

    Section F     The Organisation of the Ban

    Section G    Consideration and Findings as to Contravening Conduct

    Section H    Additional Patricks’ Allegations

    Section I    Additional Qube Allegations

    Section J    Conclusion and Orders

B    OBSERVATIONS ON THE EVIDENCE

B.1    The Evidence Adduced

10    Evidence in one proceeding was evidence in the other. Apart from a Statement of Agreed Facts (which became Exhibit J), some admissions made by the respondents (Exhibit K and L), a bundle of contemporaneous business records were received into evidence (Exhibit N). As will become evident, these contemporaneous records and the inferences to be drawn from them assume some importance in determining the relevant facts, many of which are not in dispute. This is unsurprising, as it is the review of such contemporaneous emails and other documents as may exist, and the probabilities that can be derived from those materials, that provide the best foundation for fact-finding: Mealey v Power [2015] NSWSC 1678 at [4] (Pembroke J); see also Gestmin SGPS SA v Credit Suisse (UK) Limited [2013] EWHC 3560 (Comm) at [22] (Leggatt J).

11    Additionally, a number of witnesses were called in the cases of the applicants. Each gave brief oral evidence, witness statements were tendered and each were cross-examined (although a significant portion of the relevant events and chronology was not the subject of challenge). The witnesses called were:

    Mr Jarrod Graham, who at relevant times was the Automation and Landside Manager for Patricks, and whose three statements went into evidence as Exhibits A, B and QA;

    Mr Bruce Guy, who is the Terminal Manager for Patricks, and whose three statements went into evidence as Exhibits C, D and Q2;

    Mr Luke Frawley, who is the National HSE Manager for Patricks, and whose two statements went into evidence as Exhibits E and F;

    Mr Daniel Laroche, who at relevant times was the Logistics Manager for Patricks, and whose statement went into evidence as Exhibit G;

    Mr Angus May, who is the Operations Manager for Patricks, and whose statement went into evidence as Exhibit H; and

    Mr Daniel Coulton, who is the General Manager, Industrial Relations for Qube, and whose two statements went into evidence as Exhibits Q3 and Q4.

12    Additionally, three affidavits were read by the applicants (T390-391) without objection and without the deponents being required for cross-examination: Ms Maria Zoras-Christo, Mr James Denham and Mr David Fox. Further, on 3 September 2018, a view of the Terminal was conducted pursuant to s 53 of the Evidence Act 1995 (Cth) (EA).

13    At a time immediately following the closure of the cases of Patricks and Qube (T392), I adjourned briefly to allow counsel for the respondents, Mr Reitano, to consider the course he wished to take in relation to the further conduct of the proceedings. Upon resumption, Mr Reitano informed the Court that he did not seek any adjournment and indicated that he intended to adduce no evidence in the respondents’ case. As I will later explain, a further opportunity was provided to the respondents to adjourn and adduce evidence when s 136 EA limitations were formalised in relation to an important aspect of the documentary case. Again, no adjournment was sought, nor were witnesses called. Accordingly, neither Mr McAleer nor Mr Keating gave their account of what occurred; nor did any of the employees. In the light of the forensic decision to call no witnesses, before coming to my factual findings based on the evidence identified above (and the inferences to be drawn from that evidence), it is useful to pause to make some remarks about the principled approach to fact-finding in circumstances such as the present.

B.2    Fact Finding and the State of Satisfaction Required

14    It is trite that both Patricks and Qube are required to prove their case on this liability hearing to the civil standard having regard to the degree of satisfaction required by s 140 of the EA. This section requires the court, in a civil proceeding, to find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities. In deciding, in a civil case, whether it is satisfied that the case has been proved, the court is to take into account: (a) the nature of the cause of action or defence; (b) the nature of the subject-matter of the proceeding; and (c) the gravity of the matters alleged. Although the standard of proof remains the balance of probabilities, the degree of satisfaction varies according to the seriousness of the allegations made and the gravity of the consequences (if the allegations are found to be correct): see EA s 140.

15    Importantly, the factual allegations made by both Patricks and Qube are not only foundations for the nature of the relief dealt with at this liability hearing (that is, declarations of contraventions of the FW Act), but are also the foundations for the deferred relief, that is, the imposition of pecuniary penalties.

16    It is well-established that s 140 reflects the common law as explained seminally by Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336. As the Full Court noted in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing & Allied Services Union of Australia v Australian Competition and Consumer Commission [2007] FCAFC 132; (2007) 162 FCR 466 at 480 [30]-[32] (Weinberg, Bennett and Rares JJ):

The mandatory considerations which s 140(2) specifies reflect a legislative intention that a court must be mindful of the forensic context in forming an opinion as to its satisfaction about matters in evidence. Ordinarily, the more serious the consequences of what is contested in the litigation, the more a court will have regard to the strength and weakness of evidence before it in coming to a conclusion.

Even though he spoke of the common law position, Dixon J’s classic discussion in Briginshaw…at 361-363 of how the civil standard of proof operates appositely expresses the considerations which s 140(2) of the [EA] now requires a court to take into account. Dixon J emphasised that when the law requires proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. He pointed out that a mere mechanical comparison of probabilities independent of any belief in its reality, cannot justify the finding of a fact. But he recognised that (Briginshaw 60 CLR at 361-262):

‘No doubt an opinion that a state of facts exists may be held according to indefinite gradations of certainty; and this has led to attempts to define exactly the certainty required by the law for various purposes. Fortunately, however, at common law no third standard of persuasion was definitely developed. Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences...

Dixon J also pointed out that the standard of persuasion, whether one is applying the relevant standard of proof on the balance of probabilities or beyond reasonable doubt, is always whether the affirmative of the allegation has been made out to the reasonable satisfaction of the tribunal. He said that the nature of the issue necessarily affected the process by which reasonable satisfaction was attained. And, so, he concluded that in a civil proceeding, when a question arose whether a crime had been committed, the standard of persuasion was the same as upon other civil issues. But he added, weight must be given to the presumption of innocence and exactness of proof must be expected (Briginshaw 60 CLR at 362-363).

17    It is also clear that so-called “Briginshaw principles” apply to civil penalty proceedings (which is a particular example of the application of s 140(1) of the EA): see Adler v Australian Securities and Investments Commission [2003] NSWCA 131; (2003) 46 ACSR 504 at 533-534 [142]–[148] (Giles JA); Whitlam v Australian Securities and Investments Commission [2003] NSWCA 183; (2003) 57 NSWLR 559 at 592 [117]–[119] (Hodgson, Ipp and Tobias JJA).

18    It follows that for the applicants to succeed I am required to reach a state of satisfaction or an actual persuasion that Patricks and Qube have proved their allegations of contravention, while taking into account the seriousness of the allegations and the gravity of the consequences that could follow if the allegations were to be accepted.

B.3    Jones v Dunkel and Civil Penalties

19    It is next appropriate to turn to the decision not to adduce evidence of Mr McAleer or Mr Keating (or evidence of any of the employees). How is this absence of evidence to be used, if at all, in determining whether I have reached the required standard of satisfaction or actual persuasion?

20    Both Patricks and Qube place reliance on the Court being in a position to infer that the evidence of Mr McAleer or Mr Keating (or those of the employees who had dealings with them) would not assist the respondents’ case: relying generally on Jones v Dunkel (1959) 101 CLR 298. The relevant authorities were not, however, examined in any detail. Given the importance of ensuring that any inferential reasoning occurs in accordance with authority, it is necessary to examine the principled approach to drawing any inferences and the scope of any such inferences.

21    The availability of what might be loosely called a Jones v Dunkel inference in the context of a civil penalty proceeding has been the subject of some discussion. In Adams v Director of the Fair Work Building Industry Inspectorate [2017] FCAFC 228; (2017) 258 FCR 257, the Full Court (North, Dowsett and Rares JJ) observed at 302 [147]:

The appellants submit, without reference to any supporting authority that the rule in Jones v Dunkel ought not apply in circumstances in which penalty privilege has been claimed. There are authorities to the contrary. See Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Competition and Consumer Commission [2007] FCAFC 132; (2007) 162 FCR 466 at [76] per Weinberg, Bennett and Rares JJ, see too at [28]; Adler v Australian Securities and Investments Commission [2003] NSWCA 131; (2003) 179 FLR 1 at [659]-[661] per Giles JA, Mason P and Beazley JA concurring. See also Australian Securities and Investments Commission v Fortescue Metals Group Ltd (No 5) [2009] FCA 1586; (2009) 264 ALR 201 at [85]-[100] per Gilmour J and the considered, although tentative view of the Victorian Court of Appeal in Chong v CC Containers Pty Ltd [2015] VSCA 137 at [213]-[229]. We proceed upon the basis that the rule in Jones v Dunkel may be applied in pecuniary penalty proceedings...

22    The “considered” view of the Victorian Court of Appeal in Chong & Neale v CC Containers Pty Ltd [2015] VSCA 137; (2015) 49 VR 402 (Redlich, Santamaria and Kyrou JJA) referred to by the Full Court, merits close examination. Unlike the present case, in Chong, Mr Neale (the party who did not give evidence) had expressly “claim[ed] and reserve[d] his right to claim penalty privilege and self-incrimination privilege”: see Chong at 465 [213]. In the present case, no privilege was expressly claimed or articulated as the reason why Mr McAleer or Mr Keating did not give evidence (although for reasons I will shortly explain, this is not really to the point).

23    In any event, in Chong, the Court of Appeal noted the following at 464 [212]:

In Dilosa v Latec Finance Pty Ltd [No 2] [[1966] 1 NSWR 259, 277], Street J recognised that where the absent witness is a party then considerable importance may well attach to the inference that nothing which the party could say would assist his or her case. As Gleeson CJ said in [Azzopardi v The Queen (2001) 205 CLR 50, 64–5 [34]] the judgments in Weissensteiner recognise that the inference that may be drawn from the silence of a party to civil litigation may be significant [at 61 [18]]. Santow J drew such an inference in ASIC v Adler [[2002] NSWSC 171; (2002) 168 FLR 253] because the parties who were available and not called had a personal involvement in the transactions in question [at 361 [448]]. Where a party elects not to give evidence ‘the court is entitled to be bold’ [SS Pharmaceutical Co Ltd v Qantas Airways Ltd [1991] 1 Lloyd’s Rep 288, 293 (Gleeson CJ and Handley JA), citing Insurance Commissioner v Joyce [1948] HCA 17; (1948) 77 CLR 39, 49 (Rich J)]. As Heydon, Crennan and Bell JJ stated in Kuhl v Zurich Financial Services Australia Ltd [[2011] HCA 11; (2011) 243 CLR 361] the rule has a particular application where it is the party which is the uncalled witness and may permit the court to draw, with greater confidence, any inference unfavourable to the party that failed to call the witness, if that uncalled witness appears to be in a position to cast light on whether the inference should be drawn [ibid 384–5, citing Dilosa v Latec Finance Pty Ltd [No 1] [1966] 1 NSWR 255, 276–7; ASIC v Fortescue Metals Group Ltd [No 5] [2009] FCA 1586; (2009) 264 ALR 201, 225. See also Schellenberg v Tunnel Holdings Pty Ltd [2000] HCA 18; (2000) 200 CLR 121, 142–3 [51]; Commercial Union Assurance Co of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389 (Handley JA); Oran Park Motor Sport Pty Ltd v Fleissig [2002] NSWCA 371 (Hodgson JA, with whom Beazley JA and Einstein J agreed); State Bank of NSW v Brown (as liq of Parkston Ltd (in liq)) [2001] NSWCA 223; (2001) 38 ACSR 715, 718 [17]–[18] (Spigelman CJ); Manly Council v Byrne [2004] NSWCA 123, [50]–[55] (Campbell J, with whom Beazley JA and Pearlman AJA agreed); Mamo v Surace [2014] NSWCA 58; (2014) 86 NSWLR 275 (McColl JA).

24    After referring to the principle that it is not permissible to draw any inference adverse to a witness from the reliance of the witness on a claim of privilege against self-incrimination, the Court considered Mr Neale’s submission that the process of inferential reasoning in Jones v Dunkel is not available where the absence of evidence is the result of a claim of privilege. In doing so, their Honours observed that although no adverse inference may be drawn from the refusal of a witness to answer a question on the ground that the answer may, or would, tend to incriminate the witness, what the Court was concerned with was something quite different and logically distinct: the inferences that may properly be drawn as a result of the absence of evidence from that witness. The Court referred to a number of cases, including the consideration of the issue by Gilmour J in Australian Securities and Investments Commission v Fortescue Metals Group Ltd (No 5) [2009] FCA 1586; (2009) 264 ALR 201 at 224 [96], where his Honour explained that nothing had been said by the High Court that would extend the general proscription in criminal trials against engaging in inferential Jones v Dunkel reasoning to civil penalty proceedings: see also Australian Securities and Investments Commission v Geary [2018] VSCA 103; (2018) 126 ACSR 310 (Ferguson CJ, Weinberg JA and Sifris AJA) at 345-346 [233]–[235].

25    Having explained that inferential Jones v Dunkel reasoning is applicable to proceedings such as the present which involve a claim for the imposition of a civil penalty, the question becomes: what does this inferential reasoning involve?

26    In Australian Securities and Investments Commission v Hellicar [2012] HCA 17; (2012) 247 CLR 345 at 412–413 [165]-[167], French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ discussed the evidentiary consequences of a party failing to call a witness, as follows:

Disputed questions of fact must be decided by a court according to the evidence that the parties adduce, not according to some speculation about what other evidence might possibly had been led. Principles governing the onus the standard of proof must faithfully be applied. And there are cases where demonstration that other evidence could have been, but was not, called may properly be taken into account in determining whether a party has proved its case to the requisite standard...

Lord Mansfield’s dictum in Blatch v Archer that ‘[i]t is certainly a maxim that all evidence is to be weighed according to the proof which it was in the power of one side to have produced and in the power of the other to have contradicted’ is not to be understood as countenancing any departure from any of these rules. Indeed, in Blatch v Archer itself, Lord Mansfield concluded that the maxim was not engaged for ‘it would have been very improper to have called’ the person whose account of events was not available to the court.

This Court’s decision in Jones v Dunkel is a particular and vivid example of the principles that govern how the demonstration that other evidence could have been called, but was not, may be used. The essential facts of the case, though well known, should be restated. The personal representative of a driver who had died in a collision with another vehicle brought an action for damages on her behalf and on behalf of the deceased driver’s dependents. The plaintiff’s case depended on demonstration that the other driver’s negligence was a cause of the accident. The plaintiff sought to demonstrate negligence by having the tribunal of fact (in that case a jury) infer from facts concerning the road and the two vehicles involved that the collision had occurred when the defendant’s vehicle was on the wrong side of the road. One of the defendants, the surviving driver, did not give evidence at the trial. The Court divided about whether the inference which the plaintiff sought to have the jury draw about where the collision occurred was an inference that was open on the evidence. But the Court held ‘that any inference favourable to the plaintiff for which there was ground in the evidence might be more confidently drawn where a person presumably able to put the true complexion on the facts relied on as the ground for the inference has not been called as a witness by the defendant and the evidence provides no sufficient explanation of his absence.’

27    Further, at 432 [232], Heydon J explained the inferences that may be drawn from the failure of a witness to be called:

One is that the trier of fact may infer that the evidence of the absent witness would not assist the case of that party. The other is that the trier of fact may draw an inference unfavourable to that party with greater confidence. But Jones v Dunkel does not enable the trier of fact to infer that the evidence of the absent witness would have been positively adverse to that party.

(emphasis added)

28    Put another way, the rule does not enable the absence of evidence of a witness (party or non-party) to make up any deficiency of evidence and it will not support an adverse inference unless the evidence otherwise provides a basis on which that unfavourable inference can be drawn. But where evidence has been left uncontradicted, any inference favourable to a party for which there was a basis in the evidence, might be more confidently drawn when a person, presumably able to put the true complexion on the facts relied on as the ground for the inference, has not been called as a witness and the evidence provides no sufficient explanation of that person’s absence. Here I pause to note that no attempt was made to explain the absence of evidence of any witness on behalf of the respondents.

29    With these principles in mind, I now turn to my findings as to what in fact relevantly occurred. Although I have thought it appropriate to explain the principled approach at some length, determining what actually occurred in this case does not create significant difficulties. This is for three reasons: first, as will become evident, this case is not so much about disputes regarding the underlying facts proved in the evidence as it is about the characterisations of the facts and legal conclusions to be drawn from the facts that emerge from the documents and the evidence given by the witnesses called in the applicants’ cases; secondly, when it comes to an assessment of the documents (including telephone records), the picture that emerges, particularly as to the organisation of events and involvement of Mr McAleer (and to a more limited extent, Mr Keating), is not attended by any real doubt; and thirdly, much evidence given by important Patricks witnesses as to the happening and timing of events was not the subject of challenge.

C    THE RELEVANT EVENTS: FINDINGS

C.1    The Terminal and the Sublease Area

30    As noted in the Introduction, Patricks was responsible for the operation of the Terminal, being a container terminal facility located at Port Botany, which at relevant times included:

    a Quay Line, being vessel loading facilities, including cranes, located on the south side of the Terminal, along the water’s edge;

    a Yard, being a large area, which is used to store containers awaiting import or export and in which containers are “staged” after they are first removed from a vessel (pending delivery to the rail siding or truck grids) or after they are removed from a truck or train (pending delivery to the quayside for loading onto a vessel); automated straddle cranes move containers between the Quay Line and the truck grids within the Yard;

    a Rail Yard being a rail siding, located on the northern side of the Terminal, where trains can be loaded and unloaded with containers; on the northern side of the rail line is an area known as the “rail stacks” at which a number of containers can be stored for a short period of time in connexion with the loading and unloading of trains (Rail Stacks). Export containers that are unloaded off trains are placed in the Rail Stacks pending transfer by truck to the Yard, and ultimately loading onto vessels; the placement of import containers in the Rail Stacks is intended to be on a short term basis only before being loaded on their designated train;

    Truck Grids being spaces for trucks to be loaded and unloaded (either for transport to the Yard or the Rail Yard), located on the southern side of the Rail Yard, between the Rail Yard and the Yard.

31    Additionally, at the far north western end of the Terminal is an area which prior to early 2017 had been unused. This area (Sublease Area) is centrally significant to what ensued.

32    Across the road and to the east of the Terminal was an area known as the “Sydney Haulage facility” which was leased by Qube for the purpose of providing, among other things, the storage and service of empty containers. There was a rail siding at the Sydney Haulage facility that allowed the loading and unloading of trains within the facility. For reasons that are unnecessary to detail, in late 2016, the lessor of Qube indicated that it would not renew the lease. This created a difficulty in that Qube would not be able to use the Sydney Haulage facility to provide for the storage and service of empty containers after the end of April 2017 and would be required to move all containers and equipment by that time.

33    Although the evidence as to the background circumstances was limited, it appears that following the notification from the lessor, Qube made a request of Patricks that Qube be able to use the Sublease Area for services, including the storing and servicing of empty containers. Whatever other motivations existed, the proposal was no doubt attractive to Patricks because it allowed it to obtain some income from land which was not being used for stevedoring operations. In any event, Patricks agreed to the request and Qube made arrangements to relocate empty containers and equipment from the Sydney Haulage facility. Additionally, Qube commenced performing work relating to the movement of containers by truck between the Rail Yard and the Truck Grids.

C.2    The Enterprise Agreement and Problems Emerge

34    An agreement, being the Patrick Terminals Enterprise Agreement 2016, constituting a “workplace instrument” under the FW Act had been approved on 21 December 2016 and commenced operation on 28 December 2016 (Enterprise Agreement). It relevantly applied to Patrick Holdings, the employees and the Union. Its nominal expiry date is 30 June 2020 and hence it was applicable during the period with which we are concerned. It is common ground that the nominal expiry date was known to all respondents (Exhibit J at [13]).

35    As noted above, it was in late 2016 that the lessor of Qube indicated that it would not renew the lease of the facility. The timing of this indication and the timing of the related proposal that Qube be able to use the Sublease Area, is not a matter necessary to determine with precision for the purposes of this liability aspect of the case. Subject to hearing submissions, however, the question of timing and how this timing related to the negotiation and finalisation of the Enterprise Agreement may be relevant should this matter proceed to a penalty stage. For present purposes, it is convenient to skip over the Enterprise Agreement, although it will be necessary to return to some of its terms, in detail, below.

36    In any event, apart from any other issues, coming so soon after the commencement of the operation of the Enterprise Agreement, the proposal that Patricks sublease the Sublease Area to Qube and the attendant steps to be taken to implement this plan, were not developments received with equanimity by the Union and its officials.

37    As early as 7 December 2016, Mr Keating (who, it will be recalled, was the deputy secretary of the Sydney branch of the Union) had a telephone conversation with Mr Guy, the Terminal Manager, about rumours related to the Sublease Area (Exhibit C at [32]). The following day, an email was sent (Exhibit N 326) by Mr McAleer (who, it will be recalled, was the secretary of the Sydney branch of the Union) requesting confirmation of Patricks’ intentions noting:

If there are other matters that [Patricks] is formulating behind the scenes, it may be best we give the incoming Enterprise Agreement a small hope of being functional and outline what changes are likely to be made within the overall operation at Port Botany being put on the table now.

38    No response was sent despite the request for an early reply (apparently because the email had been sent to an old email address), and the following day, a further follow-up email was sent (Exhibit N 326). The frustration and concern of Mr McAleer is evident:

This matter is incredibly serious and I am unsure as to why there has yet to be any communication whatsoever to the MUA regarding the email [sent the day before].

Can you please outline your intentions as well as any decisions made in this matter as a matter of urgency….The least membership deserve is an explanation as to what is happening

(emphasis added).

39    When Mr Guy eventually sent a response, he confirmed that Patricks did have the intention of developing the Sublease Area and that it would be sub-leased to Qube (Exhibit N 324–325). Discussions ensued on 16 December 2016 when Mr Guy attended a meeting of the Port Botany Terminal Employee Representative Committee, where he described the proposed arrangements for the Sublease Area (Exhibit C at [34]).

40    Following this discussion, by an email sent on 21 December 2016 (Exhibit N 338), Mr McAleer expressed the “serious concerns” of the Union about, among other things, the proposed use of the Sublease Area. He also noted that because matters had not resolved “satisfactorily”, that the Union “would escalate the matter to National Office to arrange for immediate discussions”.

41    Following a quietus over the Christmas period, by 10 February 2017, a dispute was notified by the Union relating to the proposed Qube sub-lease of the Sublease Area. Mr Guy and Mr Ryan (the General Manager of Terminal Operations) attended a “national-level meeting” with Mr McAleer and Mr Will Tracey, the Union’s deputy national secretary (Exhibit C at [36]–[39]). A good illustration of the view taken as to the use of the Sublease Area, and the suspicions harboured as to the motives of Patricks and Qube within the Union branch around this time, is recorded in the MUA National Office Report of March 2017 (Exhibit N 346–347), where the following was noted under the topic “Patrick and Qube attack stevedoring work”:

The Sydney Branch reports that Patrick Terminals are in the process of undermining the definition of stevedoring work and attacking wharfie’s jobs at [the Terminal]. With the support of the National Office, the Sydney branch is developing a domestic and international campaign to stop these moves and seeks the support and vigilance of all other MUA branches.

The branch believes this attack is the first front in Qube’s reorganisation of Patrick Terminals since their 50% purchase of the terminals in August 2016 and the appointment of Qube management and directors, such as Chris Corrigan, Maurice James, Paul Digney and Michael Jovicic to the Patrick board and management. Qube has a well-established tactic of undermining stevedoring work in other ports through the use of subsidiary companies.

Patrick have cordoned-off area an area which they say they are not using and are simply leasing to Qube Logistics to use for empty containers for the next 2–3 years. However, the location of the area means that it is also inextricably connected to work processes in the terminal, and it will in all likelihood remove work form the terminal. The area in question is also adjacent to an underused railway line. The use of the rail line is critical to Qube’s business strategy, which involves linking all aspects of the container supply chain and in particular, development of Australia’s largest intermodal container terminal at Moorebank near Liverpool NSW. Due to protests by local residents, containers will only be able to travel from the port to the 1.5 million TEU terminal by rail. The branch believes that establishing the separation of the land near the rail line from the work processes in the terminal is part of Qube and Patrick’s longer-term strategy to remove wharfies from the future rail work at the Port Botany terminal.

The branch is determined to see off this challenge for Qube and Patrick, as we did in 1998, again in 2012 with the automation of Port Botany, and again in 2016 when Qube sought to break up their national agreement with the MUA.

(emphasis added)

42    One might be tempted to dismiss some of these comments as hyperbole but I do not find that this was the case. The issue of the use by Qube of the Sublease Area was obviously regarded by the branch with intense suspicion and as a harbinger of further actions to be taken by Patricks and Qube adverse to the interests of employees. Although the authorship of the MUA National Office Report was not established, I am satisfied it is appropriate to infer that the views of the branch reflected in that document were an accurate reflection of the view of not only Mr McAleer (who had communicated his serious concerns) but also of Mr Keating, in the absence of evidence to the contrary. Additionally, there does not appear to be any suggestion in the evidence that the actions of the branch were in conflict, in any way, with the wishes or views of the Union at national level. Indeed, the early involvement of Mr Tracey (see the preceding paragraph), rather suggests to the contrary.

43    On 17 March 2017, the Union filed with the FWC an “Application for the Commission to Deal with a Dispute in Accordance with a Dispute Resolution Procedure” (Exhibit N 367), by which it alleged that Patricks had not complied with its consultation obligations (First FWC Application). In the dispute notification, the Union made clear its position that “the work being performed by Qube is stevedoring, and is either work that could be performed by stevedore employees at the Terminal or is work currently being performed by stevedore employees at the Terminal”. Accordingly, it was alleged that Patricks had failed to consult with employees in respect of the work which it considered to be the same work as that undertaken by the employees. Consistently with what was noted as to national level involvement, the same day, Mr Tracey wrote to Patricks advising that unless the decision to implement Qube’s use of the Sublease Area was suspended, the Union reserved its rights to sue for damages (Exhibit N 382-383). On any view of it, a dispute about the nature of the work to be performed in the Terminal had now arisen between the Union (at both branch and national level) and Patricks.

44    On 23 March 2017, Mr McAleer wrote to Mr Paddy Crumlin, the national secretary of the Union, that the Sydney Branch was “heading into a significant dispute with Patricks” and was intending on “campaigning in the biggest way possible”, and that “numerous partners” were “already committing to a community, political and industrial response around the world” (Exhibit N 388). Consistently with this, on 7 April 2017, the Union sent correspondence to Australian and international trade unions and organisations, whereby recipients were requested to assist in what was described as its “major dispute with Patrick Port Botany” and requested, in solidarity, that these organisations send a letter to Patricks in a form provided (Exhibit N 441–507).

45    At some point in the days leading up to the Sublease beginning, a notification was sent by Mr Graham giving operational details of the Qube Sublease which was to begin from 6am on 6 April 2017 (Exhibit N 413). On 6 April 2017, a “Team Based Risk Assessment” was prepared in respect of the activity “Qube truck from empty container park interaction with Terminal Operations” by Mr Laroche and Mr Nathan Beves (Exhibit N 410–412).

46    The following day and thereafter, there were further communications concerning the emails and letters sent to fraternal industrial associations. Mr McAleer arranged for the correspondence to be sent to, for example, the International Dockworkers Council, the PAME and PEMEN (unions based in Greece), the World Federation of Trade Unions, Unions NSW, the AMIEU, the AMOU, the AIMPE, the ASU, the AMWU, the CFMEU, the FSU, the SA, the TWU, and United Voice) (Exhibit N 421–440). This course of conduct reflected the perception of those within the Union, including Mr McAleer and Mr Keating, that the Union was now involved in a major dispute with Patricks.

47    Reflecting this perception, in those communications the assertion was made that Patricks was responsible for an “ambush” and was engaged in:

…attempts to compartmentalise the stevedoring terminal at the Port Botany Terminal by putting up flimsy fences to restrict job opportunities for stevedoring workers is a sneaky opportunistic plot to deunionise the terminal, or at the very least to insource cheaper labour.

48    It is not in dispute between the parties that there was a national and international campaign during this period (T34). The campaign organised by the Union, which had now been stepped up, was furthered by promotion on the “MUA Sydney Branch Facebook page” (Exhibit N 557). On the same day, an email (Exhibit N 420) was also sent internally within the branch of the Union by an officer within the Campaigns Administration section:

Comrades,

Just touching base to let you know we have the following sitting in the foyer:

•    30 flags

•    New microphones and mic cable

•    CFMEU/ MUA merchandise in two bags

Checked with Macka that the loudspeaker was in his car. New batteries are on [Mr McAleer’s] desk.

In Solidarity,

M

Mahla Conomos

49    On 9 April 2017, an official MUA media release warned that the “historic peace on the docks” was “under threat”, and quoted Mr Tracey as asking: why Qube would “jeopardise future contracts” by “starting a dispute” (Exhibit N 517)? On the same day, a protest assembly formed at the roundabout outside the entry to the Terminal. It was apparent to the general manager of Human Resources, Industrial Relations and Safety, Ms Maria Zoras-Christo, whose evidence was admitted without any limitations upon its use, that the picket had been organised by the Union as there were individuals holding MUA banners, together with individuals wearing MUA merchandise such as hats and t-shirts. She also witnessed Mr McAleer and Mr Keating being present at the picket and addressing the protesters. This picket involved a three-hour blockade of the Terminal during which time the employees, customers and truck operators could not access the Terminal. Ms Zoras-Christo gave unchallenged evidence, which I accept, that it was her understanding based on what she observed that the picket was in relation to the Union’s objection to Qube using the Sublease area (Zoras-Christo affidavit, MNZC-29 at [15]). On the state of the evidence, no other conclusion is reasonably open other than accepting that Ms Zoras-Christo’s understanding was correct.

50    On 10 April 2017, a conference was held by the Fair Work Commission in relation to the First FWC Application (Exhibit C at [45]–[46]) but it was the events of the following day which became a catalyst for the then existing dispute escalating.

51    On 11 April 2017, a direction was given by Mr Graham, the Automation and Landside Manager of Patricks (11 April Direction), in the following terms (Exhibit N 782-783):

Team,

Please find attached notification detailing transfer process and commencement time for transfers from Qube Sublease into the Patrick Rail Siding.

52    Although I will defer making findings on the objective question as to the extent of the change to work within the Terminal occasioned by the 11 April Direction, for the sake of clarity, it is useful at this juncture to reproduce an extract from the cross-examination of Mr Graham (T115–122) as to this direction and his subjective view as to the nature of the work it directed:

In December 2016 there was certainly no other practice of which you were aware that dealt with dealing with empty containers that came to the terminal by truck to be transported by rail?---Yes. That’s correct.

And the first time that there was to be any system for that to operate was after, roughly, 11 April 2017?---Yes. Correct.

***

So for the first time containers that were to go out by train that were delivered to the site were going on a laneway rather than around the rail loop?---Down that laneway, yes.

They had never gone down that laneway before?---That’s correct.

Right. And they were delivered directly to an area of the terminal, the sublease area, that had never been used for the storage of containers before?---That’s correct.

***

They were brought into Patrick’s terminal at Port Botany by… trucks driven to Qube drivers?---They were – they were brought in by the contractor trucks that we were utilising, yes.

Which were driven by Qube drivers?---Yes.

***

And the reason that you gave that direction on 11 April was because there was to be introduced a new process for the transfer of containers to the rail yard?---Yes.

And that new process, without going back to what we were talking about before, involved or didn’t involve, sorry, taking the containers to the truck grid and having them unloaded by the AutoStrads?---Yes, it didn’t involve that, yes.

And it involved the containers moving in a – from a different – or in a different route from the sublease to the rail yard than they otherwise would have got?---Yes.

They otherwise would have gone around the rail loop?---Yes, well, they entered the rail yard in the same position, but yes.

I understand they entered rail yard in the same position. They travelled on a different road, or a different piece of road from the sublease to the rail yard?---Yes.

And they travelled on train – on trucks that had been diverted from the rail loop?---Yes, they were rail loop trucks, yes.

That wasn’t my question, sir. They travelled on trucks that had been diverted from the rail loop, correct?---My definition of rail loop is slightly different to yours, so it seems.

Sir, the rail loop trucks - - -?---Yes.

- - - were diverted from the standard loop and sent to the sublease, correct?---Yes, from the standard loop, yes.

Right. And they were diverted to the sublease to pick up the empties, and take them to the rail yard, correct?---Yes.

And that was a practice in respect of the movement of containers in the terminal that did not exist until after 11 April, correct?---Yes.

And when you gave this direction, you were changing the practice that existed at the terminal for the movement of containers around the terminal?---No.

Sir, before then, we went through the process that existed before then for the movement of containers, before then, the transfer of containers did not involve trucks – sorry, the rail loop trucks being diverted from the standard loop and being sent to the Qube sublease?---Not to the sublease, no.

No. And the product of this direction was that that was something that was going to be done after the direction was given, correct?---Yes.

And that was different, wasn’t it?---Yes.

Right. And it was also different because containers were being moved from – that had arrived by truck to the terminal, were being moved from an area that was not the truck grid but was the Qube sublease?---Yes.

That was different too, wasn’t it?---Yes, it was different.

53    Returning to the chronological narrative and my findings, on 12 April 2017, a Qube Narrabri train was loaded with empty containers which arrived at the Rail Yard on trucks from the Sublease Area. Mr McAleer was aware that Qube was “running boxes into the rail”, and his reaction was to “escalate this”. He emailed Mr Bonner and stated that he should “accept this as advice of a dispute at a branch level as well” (Exhibit N 843, 892, 2929–2931 and 2964–2967). In truth, what was occurring was that the pre-existing dispute had been escalated. Notwithstanding tensions were rising, on the following day, the Qube Narromine train was loaded with empty containers and until 19 April 2017, on two more occasions, the rail employees unloaded empty containers from trucks operated by Qube (Exhibit C at [60]).

54    On 18 April 2017, a meeting was held which was attended by representatives of Patricks, Qube and the Union. At the meeting, the Union representatives reiterated the Union’s position that the work being undertaken by Qube in connexion with its use of the Sublease Area was stevedoring work and that it should be covered by an agreement with the Union on the basis of the Stevedoring Industry Award 2010 (Exhibit C at [49]–[51]; T181, 201-202).

55    On 19 April 2017, Mr McAleer informed Mr Guy that the rail employees would no longer unload the trucks operated by Qube carrying empty containers and that the matter relating to the Sublease Area “would be put into dispute” (Exhibit C at [52]–[56]).

C.3    The Events of 20 April 2017

56    Matters now came to a head. During the day shift of 20 April, rail employees were specifically directed to unload empty containers and refused to do so. The details were as follows: a train operated by Qube (the 5166 Narromine Service) was to be “(b)ackload[ed] 20ˈ empties from Qube” (Exhibit N 927). After the train arrived at about 10:30am, Qube trucks arrived from the Sublease Area to be unloaded (Exhibit C at [62]–[63]).

57    Very shortly before, the telephone records in evidence in Exhibit N establish that at 10:13 am, (that is, approximately 15 minutes before the arrival of the Qube train) which was to be loaded with empty containers, Mr Peter Balzan, a Patricks employee and Union member who works in the railyard, called Mr Keating apparently without success (the call time was four seconds). Three minutes later, Mr Keating returned Mr Balzan’s call and there was a conversation of almost five minutes. Following that conversation with Mr Balzan, Mr Keating sent an SMS to Mr McAleer. After 10:30am, there was a flurry of calls – some apparently unsuccessful: Mr Balzan tried to call Mr Keating; Mr McAleer tried to call Mr Keating; and Mr Keating tried to call Mr McAleer.

58    In any event, at about 10:54am, Mr Balzan approached Mr Guy and asked to discuss the “rail situation”. Mr Balzan stated that the Qube trucks would not be unloaded (Exhibit C at [66]-[67]). A further conversation to similar effect took place shortly thereafter (Exhibit C at [70]; Exhibit G at [21]). At around the same time, Mr Guy and Mr Laroche went to the Rail Yard and asked the day shift rail employees if they would unload the empty containers from the Qube trucks. In response, Mr Balzan stated that they would not (Exhibit G at [23]-[25]).

59    At approximately 11:30 am, Mr Balzan called Mr McAleer and there was a conversation in excess of two minutes and Mr McAleer then called Mr Keating at 11:39 am for a 32 minute conversation, immediately followed up by a conversation in which Mr McAleer spoke to Mr Keating for a further two and a half minutes. In the absence of any evidence to the contrary, it is reasonable to infer that Mr McAleer had been apprised of the fact that the escalation of the dispute by the refusal to unload the empty containers had taken place – a course taken with his knowledge, approval and encouragement.

60    Other evidence establishes that Mr Balzan’s communicated refusal reflected a ban on unloading (Ban) by rail employees which was implemented by the Union during and from the day shift on 20 April. In particular, the evidence demonstrates that various rail employees, during the course of 20 April, stated their position in words to the following effect:

•    “We aren’t going to take empty containers from the Qube sub-lease trucks and load the train. It is a new line of work. We haven’t been consulted about it and it’s also within the terminal, therefore it is our work …” (Exhibit C at [67]);

•     “We aren’t doing the sub-lease rail trucks due to 1.3” (Exhibit C at [74]; and

•    In response to a direction to unload the trucks: “[n]o, under 1.3 we are refusing to do it” (Exhibit C at [80]).

61    The reference to “1.3” requires some explanation. After the Ban commenced on the day shift, Mr McAleer, in a telephone call to Mr Guy, asserted that Patricks was in breach of the Enterprise Agreement because of “lack of consultation” under clause 1.3 of Part B, Schedule 4 of the Enterprise Agreement (clause 1.3). This allegation is one to which it will be necessary to return, in detail, below. It suffices to note for present purposes, that this was substantively the same allegation that had been made in the First FWC Application lodged by the Union on 17 March 2017.

C.4    The General Stoppage of Work

62    The position taken by the Union (through the actions of Mr McAleer), was persisted in and indeed became more widespread and extended beyond the Ban.

63    The evening shift commenced at 2:00pm on 20 April 2017. Following a “toolbox” meeting at the commencement of the shift, all of the employees waited in the crib room and did not commence work. The employees subsequently confirmed that they were supporting “the guys in rail” (that is, the rail employees) and that they would call Mr McAleer to ask him to come down and “tell us what to do” (Exhibit C at [83]–[93]).

64    At around 3.30pm Mr McAleer was standing close to the yellow fence that divides the open area of the Terminal’s meal room from the carpark. A number of workers were gathered together on the meal room side of the fence and Mr McAleer was talking to the workers through the fence from the carpark (Exhibit J [25]-[26]). After he had a conversation with a security supervisor, Mr David Fox, during which Mr Fox asked Mr McAleer to leave the premises, Mr McAleer turned to the workers who were gathered on the other side of the fence and said words to the effect of “C’mon guys, let’s go”. Mr Fox then had a conversation with Mr May and Mr Guy and said to them that “McAleer will be going and the guys might be going with him”. Shortly thereafter a large number of workers left the Terminal (Fox affidavit, sworn 30 August 2018 at [16]–[25]). Following this activity, the employees on the evening shift on 20 April did not return to work (Exhibit C at [102]). I am satisfied this action was taken because of Mr McAleer’s entreaties, which were designed by him to marshal or rally the employees and were directed at achieving the result of a large number of workers leaving the Terminal.

65    Matters then escalated quickly. An application was made by Patricks to stop what was contended to be unprotected industrial action in accordance with Part 3–3 of the FW Act (Second FWC Application). The order was sought against employees who were members of the Union pursuant to s 418(2)(b). Employees, including rail employees, maintained the refusal to work (Exhibit C at [106]–[145]) and very late in the evening of 20 April, Deputy President Booth of the FWC issued interim orders. These orders required, in effect, that the employees not engage in industrial action in the form of a ban on the loading or unloading of trucks arriving at the Rail Yard, or in a stoppage or refusal to attend for or perform work (General Stoppage of Work).

66    On the night shift of 20 April, leading into 21 April, the General Stoppage of Work at the Terminal continued. At that time, the employees on shift were represented by Mr Matthew Bonner (Exhibit H at [40]-[46]). That night, Mr Bonner placed telephone calls to Mr McAleer, lasting 67 seconds, at 10:36pm; and Mr Keating, lasting 143 seconds, at 10:37pm.

67    Despite the order, the General Stoppage of Work continued the following day. During the day shift on 21 April, the employees on shift were represented by Mr Dean Harris (Exhibit H [55], [62], [64]). That morning, Mr Harris made two telephone calls to Mr Keating at 11:55am and 11:56am (seemingly without success as each call lasted only a few seconds); and then made a further telephone call lasting 29 seconds to Mr McAleer at 12:29 pm. At 1:48pm Mr McAleer was at the entrance of the Terminal carpark addressing employees who were due to commence their shift (Denham affidavit Annexure JPD-10 [101]–[104]). In the absence of any countervailing evidence, it is necessary to conclude that it was more likely than not that Mr McAleer was aware of precisely what was occurring concerning the General Stoppage of Work and it conformed to his wishes as to the appropriate industrial strategy to undertake to escalate the dispute.

68    What also occurred on 21 April, is that at 12:11pm, Mr Fernon SC on behalf of Patricks, had appeared ex parte before the Duty Judge, Perram J, commencing the Patrick Proceeding. Mr Fernon made an urgent application, or more accurately, alternative applications: one to enforce the orders made the previous evening by the FWC in the Second FWC Application; the other, a “direct injunction” to prevent, effectively, industrial action before the expiry of the nominal period. Mr Fernon explained (T4.13-19):

… there is an area of the Patrick terminal which is occupied by a related company, Qube. That company, I think, subleases that area and stores empty containers in that area. That sort of operation was previously conducted at another place. That operation is now conducted at Qube whereby empty containers are stored there as they’re required. They’re brought out by a truck to be then loaded onto a train, to be taken to wherever they need to be taken.

69    After a short adjournment occasioned by reason of his Honour requiring more detail and sworn evidence, the matter resumed at 2:19pm. At that time, the following exchange occurred (T5-6):

HIS HONOUR: Yes. Mr Fernon, now I’ve read the second affidavit. I’ve got a couple of questions. So in paragraph 6(c), it’s a bit cryptic. “Previously conducted at a different location being a location within a stevedoring terminal operated by a different stevedoring company.” Okay. What does that mean?

MR FERNON: That means, your Honour, that the containers that are now stored in the area subleased by [Qube] were formally stored by a different stevedoring company.

HIS HONOUR: Am I allowed to know who the different stevedoring company is?

MR FERNON: The company’s name is DP World.

HIS HONOUR: DP World. All right. Okay.

MR FERNON: So effectively stored at one place previously, now stored at - - -

HIS HONOUR: So the MUAs complaint is essentially this is an attempt to use non-unionised labour for stevedoring activities and your point is this is not a stevedoring activity.

MR FERNON: Not a stevedoring activity and done by [Qube] not done by - - -

HIS HONOUR: Not by you, yes.

MR FERNON: - - - done by Patrick’s, yes. And some of the flavour of that your Honour might have seen from - - -

HIS HONOUR: Yes. No, I read it. Thank you. That was useful. So I suppose your strongest case is to enforce the conditions order.

MR FERNON: Yes, your Honour.

HIS HONOUR: Which requires little investigation on my part.

MR FERNON: Yes.

HIS HONOUR: And then order is there. One question, why an ex parte injunction? Why not short service?

MR FERNON: Because, your Honour, there are as I understand it two vessels presently at the terminal.

HIS HONOUR: They’re the ones which haven’t been sealed up, I assume.

MR FERNON: Yes, your Honour. And they should be being worked on this morning. It may be that they should have been completed. Now, I’m not sure about that detail but there’s work to be done immediately, your Honour, and the matter is urgent, and your Honour it was dealt with last night in terms of the industrial merits side of it. And so that what we’re concerned about is the breach of the commission order which is preventing the work from being done.

70    Justice Perram made orders which were directed to those employees identified in Schedule A of the order (as being persons who had refused to perform work) and also to other relevant persons (identified in Schedule B). The orders were relevantly in the following terms:

Upon the prospective Applicant, through its counsel giving the usual undertakings as to damages, the Court orders:

1.    Each of the persons identified in the Schedule are restrained from engaging in industrial action in the form of a stoppage of work or refusal to attend for, or perform work, at the Port Botany container terminal operated by the Applicant.

2.    Each of the persons identified in the Schedule are restrained from engaging in industrial action in the form of a ban on the loading or unloading of trucks arriving at the railyard of the Port Botany container terminal operated by the Applicant.

3.    These orders may be served by sending a series of text messages to each employee in the Schedule to the effect that:

a.    First text message: “An order that concerns you has been made by the Federal Court of Australia in relation to the stoppage of work and ban at the Patrick Container Terminal. Please see text message following.”

b.    Second text message: “A copy of the order has been placed on the noticeboard at the site for your information. Please call Gus May on [xx xx xx] if you would like a copy of the order”.

c.    Third text message: “A copy of the application that was made and supporting affidavits can be obtained from Mr May on request”.

71    A useful picture of what then went on can be gleaned from an exchange of emails between Mr McAleer and Mr Crumlin (Exhibit N 1178) by which Mr McAleer expressed his frustration and forwarded an email sent to him by Mr Adam Jacka who had informed him of the developments that afternoon in the Federal Court. It also graphically reflects that Mr McAleer had intentionally sought to rally the workers, or advise them, to conform to the strategy that he had fastened upon. Mr McAleer wrote at 7:15pm that evening:

How did we end up with this shit.

The guys walked back in with the shits filthy on everyone and everything on the basis of working with the company to a fix. They were prepared to back the advice from me. They didn’t want to walk back in the basis of me not being involved in the meeting between jovocic, Ryan and yourselves, a meeting that didn't even happen. I've let them down.

And we have in the background federal court. No wonder this wasn’t described to the members today before they made the decision to walk back in.

I feel massively let down by national office on this whole issue and the way it has been handled since December.

We should reflect the members bravery and courage as their elected leaders not squander their faith and trust in us by believing the filthy rotten boss

(uncorrected from the original, emphasis added).

C.5    The Ban Continues

72    Following the orders of the Federal Court, the General Stoppage of Work on 20 and 21 April came to an end. At around the same time, apparently a decision was made by Patricks not to require the rail employees to unload empty containers from trucks operated by Qube leading up to Anzac Day (apparently to avoid triggering the ban on such activity and creating a situation of increased industrial hostility (Exhibit C at [156]–[159])). Mr Guy gave evidence that he had expected the rail employees to continue to refuse to do the work the subject of the Ban based on his discussions with Mr McAleer, the events of the previous three days, and because no employee had indicated a willingness to do the relevant work (Exhibit Q2 at [5]).

73    But following Anzac Day, the Ban continued. On the morning of 26 April, Mr Keating again asserted that Patricks’ direction to load empty containers from the Sublease Area was a breach of clause 1.3, and that what Patricks was doing was “fancy manoeuvring” around the stevedoring award (Exhibit C at [167]). Mr Oates, one of the rail employees on the 26 April 2017 day shift, indicated that they were not performing the work because they had been told not to by the Union (Exhibit C at [172]).

74    Before meeting with Mr Guy on 26 April, the rail employees on the day shift indicated that they wished to be represented by Mr Matthew Freestone (Exhibit C at [176]). At 11:39am, Mr Freestone made a telephone call to Mr Keating which lasted 1 minute and 45 seconds. Mr Freestone then proceeded to represent the rail employees on the 27 April day shift in their discussion with Mr Guy, and stated that they would not perform the work of back loading empty containers in reliance on clause 1.3 (Exhibit C at [177]).

75    At around 1:18pm on that day, Ms Zoras-Christo observed Mr McAleer and Mr Garett standing in the carpark with five employees, two of whom were Ms Adele Lucas and Mr Matthew Freestone. Mr Garrett was the assistant secretary of the Sydney branch of the Union (Zoras-Christo affidavit MNZC-29 at [24]).

76    During the evening shift on 27 April, Mr John Bell acted as a representative of the rail employees who refused to backload empty containers (Exhibit G at [90]–[93]). At 3:17pm, Mr Bell made a telephone call to Mr Keating which lasted 27 seconds. Consistently with the position previously notified, the evening shift employees on 27 April said that they would not unload empty containers from Qube trucks arriving from the Sublease Area (Exhibit G at [92]).

77    It might be thought to be a considerable understatement to remark that Mr McAleer continued to feel strongly about the matter. On 29 April, in responding to an email sent by Mr Keating to Patricks criticising the issuing of warning letters, he stated “[t]he company will be broken or broke” (Exhibit N 1693).

78    At about 10.30am on 1 May, Mr McAleer and Mr Keating arrived at the Terminal and waited near the security office. Around five minutes later, the rail employees scheduled to work on the 1 May day shift met with Mr McAleer and Mr Keating. A meeting then took place between Mr Higham, a Union delegate and employee, Mr Tony Micic, an employee, Mr Michael UpCroft, another employee and the WHS Committee Chairman, Mr Frawley and Mr Guy. At this meeting, Mr Guy indicated that he would be happy to have a discussion regarding the Qube trucks after the train was loaded. Mr Micic asserted that the employees did not need to load the empty containers because there were other containers that could be loaded. Mr Guy responded by re-iterating that the Qube trucks were loaded, and needed to be unloaded. Mr Keating then raised the issue that there had been no risk assessment or standard operating activity done for the loading of empty containers (Exhibit C at [204]-[208]). Shortly after this meeting concluded, Mr Frawley and Mr Guy presented warning letters to those 1 May rail employees who had not previously received them (Exhibit G at [202]-[219]) .

79    There were multiple subsequent meetings between Mr Frawley, Mr Guy, Mr McAleer, Mr Keating and various rail employees throughout the day. In particular, not long after 12.30pm, Mr Guy provided Mr McAleer with a copy of an unsealed Federal Court order. At this meeting, Mr McAleer asserted the argument made by the Union which was persisted in at the hearing in greater amplitude: Patricks’ direction to load empty containers from the sub-lease onto trains in the Rail Yard was in breach of clause 1.3, there had been no consultation regarding the change to accepted practice; as a consequence, there had not been industrial action, and the receival and delivery process within the Terminal had changed dramatically (Exhibit C at [226]–[223]). Mr Keating was present at this meeting, saying words to the effect: “you show utter contempt for your employees”, and requesting that the meeting be recorded (Exhibit C at [226]-[232]). Following this meeting, Mr Keating and Mr McAleer gathered again with the rail employees in the carpark. At around 1pm, Mr Guy approached the group and indicated he would give the employees five minutes to get advice from Mr McAleer and Mr Keating. Less than ten minutes later, the employees, Mr Keating and Mr McAleer moved into the meeting room near the security office. Mr Guy proceeded to read the pre-prepared script which directed the employees to work the Qube trucks. After reading the script, Mr Guy gave the employees a further five minutes to discuss what they had just been told. Shortly thereafter, Mr McAleer said that they had contacted the workers’ legal representatives and were awaiting advice. Mr McAleer and Mr Keating then returned to the carpark. At 1.20pm, Mr Frawley and Mr Guy again approached the group which had gathered in carpark; Mr Guy telling the employees that they needed to return to work and he attempted to read the script again. While reading the script, Mr McAleer and Mr Keating approached him, Mr McAleer swearing. As this took place, the employees began to walk away. Mr Guy followed them and warned that they were in breach of Federal Court orders. Five minutes later, the group remained in the carpark. Mr Guy asked if they had a response to his direction. Three employees contended that they were sick because of stress, and went home. The remaining rail employees did not perform any work for the remainder of the day. I accept Mr Laroche’s evidence that he directed the rail employees to work and that they refused. In the absence of any evidence to the contrary, I consider it is far more likely than not that the rail employees did so because both Mr McAleer and Mr Keating had both encouraged them to refuse to act in accordance with the direction made and, in doing so, entreated them to conform with the strategy that they had agreed upon on behalf of the branch.

80    On 2 May, another official of the branch, Mr Warren Smith, sent an email indicating that “[w]e are campaigning in an attempt to sway the company through leverage on ships that call into the port and have contracts with Patrick” (Exhibit N 1940). Mr Graham gave evidence, which I accept, that Patricks was required to cancel the day shift on 2 May because there were not enough skilled employees to perform the work due to the number stood down the previous day (Exhibit A at [118]–[119]; Exhibit QA at [11]–[13]).

C.6    Work Resumes

81    On 4 May, Deputy President Booth heard the Second FWC Application and made orders (Exhibit N 2014). By this time, Mr Crumlin had expressed the view that the opportunity to achieve certain demands “won’t last long if we don’t get the blokes back to work” (Exhibit N 2016). In effect, this is what happened. Mr Coulton attended a meeting with Mr Paul Digney (Qube’s Chief Operating Officer), Mr McAleer and Mr Crumlin at Qube’s offices to determine whether Qube and the Union could resolve the ongoing dispute (Exhibit Q3 at [159(a)] and [160(e)]). When the rail employees on the evening shift attended for work, they performed work as directed and back loaded empty containers (Exhibit A at [127]).

82    Notwithstanding the end of the Ban, a number of Qube trains that had initially been scheduled to be back loaded with empty containers in the Rail Yard up until 8 May 2017, were cancelled. I will need to return to this matter, being a fact relied upon by Qube (but not Patricks), below.

D    THE CASE OF PATRICKS AND QUBE

D.1    A Summary of the Case of the applicants

83    Having identified my findings of fact, it is appropriate to summarise the case made by the applicants. As noted above, the range of contravening conduct alleged is diverse and, one might think, unnecessarily complex.

84    In any event, it is alleged that all of the action found above to have been taken by the employees occurred in the period between the approval of the Enterprise Agreement and its nominal expiry date. Each employee who engaged in such action, was a member of the Union (Exhibit K at [10], [14]–[142]; Exhibit L at [14]–[142]) and was covered by the Enterprise Agreement (see amended defence [9(b)]; Exhibit A at [6]–[7]; Exhibit C at [9]–[10]).

85    Accordingly, it is asserted that by engaging in the action taken (which the applicants characterise as “industrial action” within the meaning of s 19(1) of the FW Act), the employees contravened s 417(1) of the FW Act and, in relation to those employees who engaged in industrial action after the FWC made interim orders, conduct occurred in contravention of s 421(1) of the FW Act.

86    It is next contended that the Union and Mr McAleer organised the alleged industrial action or that they were involved in the action within the meaning of s 550 of the FW Act. Further allegations of involvement in contravening conduct by employees is alleged together with conduct contrary to ss 340(1) (adverse action) and 343(1) (coercion). As noted above, similar allegations are made as against Mr Keating but limited to the day shift on 1 May 2017. All these allegations by Patricks arise out of the same factual substratum. I deal with these aspects of the case, to the extent I can, below.

D.2    The Differences between the cases of Patricks and Qube

87    There are three differences between the cases of Patricks and Qube on liability.

88    First, in addition to the ss 417 and 421 cases outlined above, Patricks advance a case that in organising the action that took place at the Terminal, the Union, Mr McAleer and Mr Keating (as to 1 May 2017) either took or were involved in, “adverse action” against Patrick Holdings contrary to s 340(1) of the FW Act. The action taken, it is said, was a means to place pressure not to direct that employees perform work connected to the Sublease Area, “as part of [the Union’s] broader effort to stop and reverse those developments”. I will deal with this aspect of the case in Section H.1 below.

89    Secondly, Patricks advance a further case that the respondents took action to organise, or took action, with intent to coerce Patricks not to exercise a workplace right; or were involved in similar contravening conduct by the employees. I will make further reference to this aspect of the case in Section H.2 below.

90    Thirdly, Qube contends that the Ban, that is, the limitation or restriction on the performance of work, being the refusal to unload empty containers from Sublease Area from the day shift on 20 April 2017 lasted until 8 May 2017. Patricks’ case is that it alleges the relevant contravening conduct only up until the day shift on 1 May 2017. Additionally, in the Qube Proceeding it is alleged that the Ban affected Qube on the 22 April, 24 April and 27 April 2017 day shifts. I will deal with this aspect of the case in Section I below.

D.3    Principles relating to “organising” and “involvement”

91    I will deal below with the disputed question as to whether or not “industrial action” within the meaning of s 19(1) of the FW Act took place. It is convenient to set out, in this part of the reasons, what is meant by “organising” industrial action or involvement in industrial action in the event that the applicants’ contention that industrial action occurred is vindicated.

I    Organising

92    Section 417 is directed to both “organising” and “engaging in” industrial action but given the discontinuance of proceedings against the employees, it is only the former concept which remains directly relevant. I will return to the definition of “industrial action” below, but s 417 relevantly provides as follows:

Industrial action must not be organised or engaged in before nominal expiry date of enterprise agreement etc.

No industrial action

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

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

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

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

(2)    The persons are:

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

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

***

93    The term “organise” is not defined in the FW Act (nor for that matter, is the term “engage”). It follows that the verb is to be given its ordinary meaning having regard to the object and purpose of the provisions in which it appears: see Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2015] FCAFC 25; (2015) 230 FCR 298 at 326 [144].

94    What is evident from the authorities is that while being a passive observer of conduct is not sufficient to have constituted organising action, the concept of “organisation” may involve a variety of forms, so long as it involves positive conduct which is intended to, and does, induce others to engage in conduct (Director of the Fair Work Building Industry Inspectorate v Robinson [2016] FCA 525; (2016) 241 FCR 338 at 348 [53]). It can take the form of marshalling or rallying employees through “a number of discrete acts directed at achieving cohesiveness in a result”: see Robinson at 348 [53].

95    In BHP Coal at 326 [144]–[146], the Full Court (Logan, Bromberg and Katzmann JJ) observed:

The word “organised” as Isaac J said in Pirrie v McFarlane (1925) 36 CLR 170 at 203 “is in itself of large connotation”. However, it is not the type or extent of the conduct falling within the scope of the word that we need here to consider but rather the sense in which it has been employed in s 417(1) of the FW Act.

The conduct prohibited by s 417(1) is the organisation or engagement in industrial action...

The mischief with which s 417(1) is concerned is that industrial action not occur in the period from which an enterprise agreement (or workplace determination) is approved (or comes into operation), until the time that the nominal expiry date of the instrument has passed. The evident intent is to ensure that that period is free of industrial action. The intent is reflected in the heading to Div 3 of Pt 3–3, the only provision of which is s 417. The heading reads “No industrial action before nominal expiry date of enterprise agreement etc.”

II    Involvement in contraventions

96    Section 550 provides as follows:

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:

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

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

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

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

97    As North and Bromberg JJ explained in Fair Work Ombudsman v Quest South Perth Holdings Pty Ltd [2015] FCAFC 37; (2015) 228 FCR 346 at 404 [253]–[254]:

The nature of the liability imposed by s 550(1) (in the context of the meaning of “involved in” set out in s 550(2)), was explained by Tamberlin, Gyles and Gilmour JJ in Construction, Forestry, Mining and Energy Union v Clarke (2007) 164 IR 299 at [26] as follows:

Regardless of the precise words of the accessorial provision, such liability depends upon the accessory associating himself or herself with the contravening conduct — the accessory should be linked in purpose with the perpetrators (per Gibbs CJ in Giorgianni v The Queen (1985) 156 CLR 473 at 479–480; see also Mason J at 493 and Wilson, Deane and Dawson JJ at 500). The words “party to, or concerned in” reflect that concept. The accessory must be implicated or involved in the contravention (Ashbury v Reid [1961] WAR 49 at 51; R v Tannous (1987) 10 NSWLR 303 per Lee J at 307E–308D (agreed with by Street CJ at 304 and Finlay J at 310)) or, as put by Kenny J in Emwest Products Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (2002) 117 FCR 588; 112 IR 388 at [34], must participate in, or assent to, the contravention.

The requirements of what was then s 75B of the Trade Practices Act 1974 (Cth) were considered by the High Court in Yorke v Lucas (1985) 158 CLR 661. The terms of the former s 75B are the same as those found in s 550(2) of the FW Act. A wide range of elements are identified by the four sub-paragraphs of s 550(2). …

98    The requirement is that there be a practical connexion between the person said to be involved and the contravention: Fair Work Ombudsman v Grouped Property Services Pty Ltd [2016] FCA 1034; (2016) 152 ALD 209 at 347 [950] per Katzmann J.

99    As is well known from the many cases in which the relevant principles have been explained, the notion of someone having “aided, abetted, counselled or procured” requires that a person involved must have intentionally participated in an act and must have knowledge of the essential matters which go to make up the contravention (although it is not necessary for the person to have knowledge that those matters constitute a contravention: see, for example, Fair Work Ombudsman v Devine Marine Group Pty Ltd [2014] FCA 1365 at [176] per White J).

100    For a person to be “knowingly concerned in or party to the contravention” for the purposes of s 550(2)(c), the person must have been an intentional participant with knowledge at the time of the contravention of the essential elements constituting the contravention and actual knowledge is required – mere constructive or imputed knowledge is not sufficient, however, actual knowledge may be inferred from “exposure to the obvious”: see Giorgianni v The Queen (1985) 156 CLR 473 at 507-508.

D.3    Attribution of conduct to the Union

101    Although the submission was not developed, Patricks asserted that pursuant to s 793(1), any action taken by Mr McAleer and Mr Keating in contravention of s 417 can be attributed to the Union, such that the Union may also be taken as having contravened s 417. The respondents argued that, plainly enough, actions of the Union membership could not be attributed to the Union, but that such attribution would be limited to Union officials such as Mr McAleer and Mr Keating. Whether any particular actions of Mr McAleer and Mr Keating should not be attributed to the Union was not the subject of any debate.

102    Pursuant to s 793(1) of the FW Act, conduct engaged in on behalf of the Union by an officer, employee or agent of the Union, within the scope of their actual or apparent authority is taken, for the purposes of the FW Act, to have been engaged in by the Union. The state of mind of the officer, employee or agent of the Union may also be attributed to the Union for the purpose of proving a contravention: s 793(2).

103    It is, of course, agreed between the parties that at all relevant times, Mr McAleer and Mr Keating were Union officials within the meaning of the FW Act (Exhibit J [8]-[9]) and the Union did not dispute that any of the impugned conduct was within the scope of their actual or apparent authority.

104    In relation to the alleged contraventions of ss 340 and 343, it is similarly submitted that by reason of s 363(1)(b) of the FW Act, any action taken by Mr McAleer and Mr Keating is taken to be an action of the Union. Section 363 requires that the Union officials were “acting in that capacity”. Again, no submission was made that Mr McAleer or Mr Keating were not acting in their capacity as officers of the Union.

E    AN OVERVIEW OF THE RESPONDENTS’ CONTENTIONS

105    Despite efforts made during the course of the hearing to identify, with precision, those issues that needed to be determined to resolve all liability issues, consensus on a list of issues remained elusive. However, following oral submissions and the exchange of written closing submissions, the ambit of the dispute came into some degree of focus and what then became evident was that there was a relatively confined contest on the facts and little debate between the parties as to legal issues.

106    It emerged that the real liability issues for determination in relation to the allegation of a contravention of s 417(1) which spanned both proceedings, were whether two contentions of the respondents were correct. It is useful to deal with these contentions separately before dealing with additional arguments, raised in relation to the contraventions alleged in only one of the proceedings. By stating the issues in this way I do not mean, of course, to obscure the fact that in relation to most of the contested legal and factual issues it is the applicants that have the evidentiary and persuasive onus. These two principal contentions of the respondents can be stated as follows.

107    First, that the applicants have failed to establish on the evidence that the respondents organised the General Stoppage of Work on 20 and 21 April (General Stoppage Contention).

108    Secondly, on a proper construction of clause 1.3 of the Enterprise Agreement, once there is a dispute arising as to a consequence of a direction to “work different (sic) to accepted practice” or as a result of a suspected breach of the Enterprise Agreement, the parties are required to work only as existed before the change or before the suspected breach arose until such time as the matter is determined under a dispute resolution procedure, and given such disputes arose, the exclusion to the definition of industrial action in s 19(2)(a) applied (No Industrial Action Contention).

109    When considering whether or not conduct contrary to s 417(1) spanning both proceedings has been established, it is convenient to consider the arguments of the applicants by reference to each of these contentions.

110    Before doing so, however, it is necessary to deal with an issue that has not been admitted, but is plain on the evidence beyond peradventure: that the Union organised the Ban and also to make findings as to the organisation or involvement of Mr McAleer and, to a more limited extent, Mr Keating.

F    THE ORGANISATION OF THE BAN

111    As I have already noted, a premise of the contention of both Patricks and Qube is that both the Ban and the General Stoppage of Work amounted to “industrial action” for the purposes of the FW Act. This is a disputed premise which I deal with in Section G.2 below.

112    The focus of this section is recording, on the basis of the factual findings identified, whether the Union and Mr McAleer organised or were involved in the Ban generally (and Mr Keating as to the day shift on 1 May). (I deal with the General Stoppage of Work in Section G.1 below.)

113    The contemporaneous documents, at a branch and national level, are replete with the Union considering that it was in a pitched battle with Patricks in relation to the proposed use by Qube of the Sublease Area. Although not admitted, the notion the Union had not organised the relevant activity was, perhaps unsurprisingly in these circumstances, not seriously put in contest by the Union which, as will become evident, placed most of its emphasis on the fact that the activity did not constitute “industrial action” for the purposes of the FW Act.

114    Nor, save for the fact of non-admission, was the notion that Mr McAleer was factually responsible for the organisation of the Ban the subject of any real rebuttal; the focus again being on whether or not “industrial action” existed.

115    Although it may have been more convenient and consistent with the overarching purpose not to put the issue of organisation of the Ban in contest, the reason for not seeking to mount an affirmative case of failing to organise or non-involvement is clear having regard to my findings.

116    In the absence of any countervailing evidence from either Mr McAleer or Mr Keating or any employees, the record of communications between them and their roles as secretary and deputy secretary of the branch in the conduct of what was clearly subjectively considered by both of them to be a “major dispute”, establishes that the branch officials were taking a coordinated and tactical course in putting the Ban in place. This was evidently thought by both Mr McAleer and Mr Keating to be a proportionate and appropriate remedial response to an action which was perceived to be a broader plan by Patricks and contrary to the interests of the Union and its members. Although it seems that both Mr McAleer and Mr Keating were the most passionate officials advocating and organising the escalation of the dispute, there is no evidence anyone within the Union acted to countermand them or put in place an alternative strategy. The organisation of the escalation of the dispute and the putting in place the Ban, consistently with the wishes of Mr McAleer in particular, was actioned. After reviewing the contemporaneous material and in the absence of any evidence to the contrary, I have reached a state of satisfaction or actual persuasion that Mr McAleer was not mere passive observer but was involved in positive conduct which was intended to and did induce and rally employees to participate in the Ban and those acts were directed to achieving a cohesiveness in result in ensuring the Ban took place in accordance with the industrial strategy settled upon by him. To the extent relevant, I am also satisfied that Mr McAleer counselled and procured the employees to participate in the Ban while having knowledge of the fact that this would amount to disputation during the currency of the Enterprise Agreement.

117    As to Mr Keating, it is only necessary to make findings as to the day shift on 1 May. I am comfortably satisfied that there was no relevant difference between the views of Mr McAleer and Mr Keating as at that date. Mr Keating as at 1 May was also involved in positive conduct which was intended to and did induce and rally employees to participate in the Ban on the day shift and those acts were directed to achieving a cohesiveness in result in ensuring the Ban took place that day in accordance with the industrial strategy he had agreed with Mr McAleer. Mr Keating counselled and procured the employees to participate in the Ban on 1 May while having knowledge of the fact that this would amount to disputation during the currency of the Enterprise Agreement.

118    I should expressly note, however, that I am not satisfied that either Mr Keating or Mr McAleer subjectively believed that they were engaging in a contravention of the law but rather that they had knowledge of the essential ingredients that made up the contravention. Needless to say, this finding is one which will be relevant if one comes to considering the issue of any appropriate pecuniary penalty.

G    CONSIDERATION AND FINDINGS AS TO CONTRAVENING CONDUCT

G.1    General Stoppage Contention

119    The focus of this section is also evidentiary: whether the refusal of the employees, including rail employees, to perform any work over three shifts commencing with the evening shift of 20 April continuing through to 21 April, was organised by any or all of the respondents.

120    Despite the fact of organising the General Stoppage of Work being in dispute in relation to all respondents, the respondents’ Final Written Submissions (RS) focussed on the position of Mr McAleer and Mr Keating.

121    As to Mr Keating, the submission was straightforward: it was contended at RS [61] that Mr Keating does not feature in the relevant narrative of events until 1 May, being the date upon which he is alleged to have engaged in contravening conduct.

122    As to Mr McAleer (and through him the Union), the submission was more extensive and set out at RS [49]–[52]:

This section deals with the allegations concerning the stopages (sic) on 20 and 21 April.

The Court would not be satisfied that Mr McAleer or the union organised any stoppage of work on 20 April 2017. The available evidence indicates that a number of the employees declined to commence work at around the time of the shift change at about 2.00 p.m. on 20 April 2017. Mr McAleer did not arrive at the Terminal until 3.20 p.m. Had Mr McAleer wished to encourage employees to take action, there was no need for him to attend the Terminal. That message could easily have been conveyed to members of the workforce by phone or text without any attendance at the Terminal by him. More likely, Mr McAleer’s attendance was with a view to seeking a resolution of the dispute.

Later on the night of 20 April 2017, Mr Bonner, a member of the union, told Mr Guy and Mr May that:

Will Tracey [the union’s deputy national secretary] has told the group to go back to work but the group are so worked up about what’s happened today that they won’t.”

Mr Guy’s evidence of Mr Bonner’s statement that the workers were so angry that they refused to abide by Mr Tracey’s direction is evidence that neither the union nor Mr McAleer organized any alleged industrial action. It is direct evidence contrary to the inference Patrick invites the Court to draw – that the union or McAleer organised the action, or was knowingly concerned in the taking of the action. That direct evidence is fatal to the inference the Applicants presumably ask the Court to draw. Having regard to the nature of the matter before the Court, it is not possible to not reach a state of reasonable satisfaction as to the complicity of the union or Mr McAleer.

123    Given the findings that I have made in Section C above, these submissions as to Mr McAleer cannot be accepted.

124    Notwithstanding only limited relief was sought against Mr Keating, it might be thought the evidence demonstrates beyond doubt the role of both Mr McAleer and Mr Keating in the events leading up to 20 April. They were not only involved in the national and international campaign, but Mr McAleer had stated his intention, a little more than a week before the events on 20 April, to “escalate” the dispute (Exhibit N 843). Given the evidence of the communications between them and the co-ordinated escalation of the dispute, in the absence of direct evidence to the contrary, I would have thought the inference is clear that there was not a cigarette paper of difference between the attitude of Mr McAleer and that of Mr Keating. It is unnecessary, however, to make any findings in relation to Mr Keating, except as necessary to deal with the limited relief sought against him. More importantly, picking up on the respondents’ submissions, any suggestion that Mr McAleer’s role was simply seeking a resolution of the dispute (RS [50]) is wholly unconvincing in the light of the contemporaneous material.

125    More particularly, as is evident from my findings leading up to Section C.3, the events on 20 April were a culmination of a dispute that had been escalating for an extended period reaching a point the previous day when Mr McAleer informed Mr Guy that the matter “would be put into dispute” (see [55] above). The flurry of telephone communications immediately prior to the train arrival at 10:30am, show a coordinated plan of action.

126    The submission of the respondents confuses the fact that a representation may have been made by Mr Bonner (who was not called), and the truth of any such representation. I am simply not satisfied in the absence of direct evidence that Mr Tracey, of the National Office, had told the group to go back to work but that they were so worked up they would not do so for reasons other than having been “worked up” by the escalating dispute encouraged by the branch officials. Not only is there no evidence from Mr Tracey, but also none from the employees. It is inconsistent with the attitude of Mr McAleer and Mr Keating as revealed in the contemporaneous material, the available inference that the Union was content to leave the appropriate response to Mr McAleer (and also, it appears, Mr Keating), and the lack of any evidence showing any actual contrary or countermanding actions on behalf of the National Office.

127    I am conscious of the email that Mr McAleer wrote the following day, noting he felt “massively let down by the National Office” and that there was evidently at least some tension between the National Office and the branch in “the way [the issue] has been handled since December” the previous year. But the reality as revealed in the evidence is that the organisation of a response was left to the branch officials. The branch was intent on pursuing what Mr McAleer considered to be appropriate and the evidence allows me to be comfortably satisfied that Mr McAleer, as at 20 April, wanted, encouraged and successfully organised an escalation of the dispute and a means designed to achieve that end was putting in place the General Stoppage of Work. By application of s 793(1), the conduct of Mc McAleer in organising the General Stoppage of Work should also be attributed to the Union.

G.2    No Industrial Action Contention

I    Introduction

128    The respondents assert that no “industrial action” took place within the meaning of s 19(1) of the FW Act. This is because a dispute had arisen for the purposes of clause 1.3, Part B, Schedule 4 of the Enterprise Agreement. Why this matters is because clause 1.3 has the effect, the respondents contend, of limiting the capacity of Patricks to do things when there is a dispute arising from: (a) a direction to its workforce “to work different (sic) to accepted practice” (Work Change Dispute); or (b) where there are suspected breaches of the Enterprise Agreement (Suspected Breach Dispute). In this way, the clause operates in the event of a relevant dispute, as Patricks’ authorisation or agreement to employees working as they did before the dispute arose until such time as the matter is processed through the Dispute Resolution Procedure found in Schedule 1 of the Enterprise Agreement (DRP). If these premises are correct, then Patricks, by its agreement to the clause, agreed to and authorised action by the employees not to perform work unloading empty containers from trucks arriving at the rail yard within the meaning of s 19(2)(a) of the FW Act such that no industrial action existed.

129    As will become evident, identification of the relevant dispute is central to this argument. As I will explain, the question of what amounted to the relevant dispute for the purposes of the analysis took on an ephemeral character during the progress of the proceedings. In the end, the primary argument advanced was that a Work Change Dispute was said to have arisen as to the consequence of Patricks making the 11 April Direction. It is submitted that this involved directing its employees to work differently to accepted practice. The relevant difference arose in the implementation of a new process to the Terminal workplace involving, among other things, the establishment of an empty container storage area adjacent to the Terminal from which empty containers would be delivered to the Rail Yard for unloading from trucks on to trains. It is contended that this work practice was “previously non-existent at the Terminal” (RS [1(a)]).

130    The Suspected Breach Dispute is said to have arisen as a consequence of suspected contraventions of clauses 12.5, 12.7 and 14 of the Enterprise Agreement by Patricks.

131    It is convenient to deal with these disputes separately, but before doing so it is appropriate to turn to summarising the competing conventions of the parties as to this key provision of the Enterprise Agreement and then identify its proper construction. Obviously enough, determining the proper construction of the clause informs the determination of the respondents’ No Industrial Action Contention.

II    The Parties’ Submissions on Clause 1.3 of the Enterprise Agreement

132    Clause 1.3 is in the following terms:

Where a dispute arises in the workplace as a consequence of the Company directing employees to work different (sic) to accepted practice/s or a suspected breach of the Enterprise Agreement, work shall continue as existed prior to the dispute arising for a period of 72 hours, and a discussion has taken place between the MUA Branch Secretary and General Manager of Terminal Operations or their nominated representatives. Where the Company proceed with directing employee/s to carry out work contrary to the terms of this Agreement or accepted practice, work shall continue as existed prior to the dispute arising until the matter has been determined through the Dispute Resolution Procedure. It is the intention of the Parties that clause 1.3 will not apply where there has been genuine consultation under the consultation and change clause.

133    The respondents contend that this clause evinces the mutual intention of putting in place a procedure for dealing with disputes about change to the processes and practices that accompany work being done at the Terminal, or suspected breaches of the Enterprise Agreement itself. It is said that unlike the procedure in respect of disputes over other matters, clause 1.3 requires Patricks to forestall the introduction of a change until such time as the dispute has been dealt with under the DRP contained in the Enterprise Agreement.

134    More particularly, the respondents made a number of observations about how clause 1.3 operates in the present circumstances. They are as follows:

    first, the clause only applies to the two particular kinds or types of disputes identified above, being a Work Change Dispute or a Suspected Breach Dispute but, by way of contrast, the DRP has application to a broader category of disputes, namely, “a dispute arising in the workplace in regard to the application of this [Enterprise] Agreement, the National Employment Standards or any matter pertaining to the employment relationship (including Company policy) …”; it follows that the two kinds of disputes referred to in clause 1.3 are to be treated differently to other types of disputes (presumably because they reflect matters that were of some significance when the Enterprise Agreement was negotiated);

    secondly, once engaged, the clause requires discussions to take place between the most senior officers of the branch (the branch secretary, Mr McAleer) and the employer (the General Manager of Terminal Operations, Mr Ryan), or their nominated representatives and this must occur within 72 hours; this is not a process envisaged by the DRP;

    thirdly, if, as a result of those discussions, Patricks determine to insist on directing employees to carry out work contrary to the terms of the Enterprise Agreement or accepted practice, the status quo ante must be restored;

    fourthly, the reference in the seventh line of the clause to “contrary to the terms of the Agreement” cannot be to an actual breach of the Enterprise Agreement; it is submitted by the respondents it would be “absurd” to contend otherwise because a determination that a direction was contrary to the Enterprise Agreement could only be made after the events in question and therefore long after it had any utility in the DRP; it follows, that the reference in this part of the clause to “directing employees to carry out work contrary to the terms of the Agreement” must be read as a reference to the suspected breach which engaged the clause in the first place;

    fifthly, the clause does not oblige either party to engage the DRP, but the status quo ante can only be disturbed once that clause is engaged and a determination through that process is made; notably, the clause does not refer to disentitling conduct nor does it provide that the clause is inoperative in the event of industrial action; it follows that nothing short of a determination under the DRP “may interrupt the status quo ante which both parties are obliged to restore once cl 1.3 is engaged”;

    sixthly, turning to the meaning of the words “work different (sic) to accepted practice/s”, this means the usual or customary established procedures that relate to the doing of work; the words “accepted practice” have a practical operation and mean no more than the established, known or customary procedures (put more directly, they mean the usual systems, methods and features associated with the work being done);

    seventhly, as to the words, “suspected breach of the Enterprise Agreement”, they have a self-evident meaning and are different from actual (or proven) breach; for them to be engaged “they require a belief that has some foundation that there is something in the [Enterprise] Agreement with which a party has not conformed”.

135    Unsurprisingly, the approach urged by Patricks to the construction of clause 1.3 was somewhat different. Patricks submitted:

    Clause 1.3 provides for a limited “status quo” where a dispute arises as a consequence of one of the two relevant pre-conditions (namely a Work Change Dispute or a Suspected Breach Dispute);

    the evident purpose of the dispute resolution regime of which clause 1.3 forms part is to enable the resolution of disputes; the power of the FWC to arbitrate and make binding determinations under the Enterprise Agreement is, however, “subject to there being no industrial action or no industrial action having occurred”; it follows, that “a party is thus disqualified from recourse to that regime where industrial action is occurring, or has occurred” and once “industrial action occurs the ‘status quo’ provision ceases to apply”;

    finally, it is necessary that the relevant “dispute” arose a consequence of either: (a) a Work Change Dispute; or (b) a Suspected Breach Dispute, and in the present case no such causal or consequential link is established.

136    When applying this construction to the present facts, the applicants had a series of cascading arguments. First, because of the General Stoppage of Work, the determination of any “dispute under the Dispute Resolution Procedure [was] inapplicable and rendered inoperable any ‘status quo’ under cl 1.3”; secondly, in the present case no causal or consequential link is established between the disputes as pleaded and the actions of Patricks which are said to have given rise to those disputes; and thirdly, no Work Change Dispute nor Suspected Breach Dispute arose in any event.

137    For reasons I will explain, the submissions of the applicants should broadly be accepted, and the Union’s No Industrial Dispute Contention must be rejected.

III    The Proper Construction of Clause 1.3

138    There is no dispute between the parties as to the principled approach to construction and it does not require lengthy excursus. The respondent placed reliance on the observations of Madgwick J in Kucks v CSR Limited (1996) 66 IR 182 at 184 (which were cited with approval Amcor Limited v Construction, Forestry, Mining and Energy Union [2005] HCA 10; (2005) 222 CLR 241 at 270-271 [96] (Kirby J), 282-283 [129]–[130] (Callinan J) as follows:

It is trite that narrow or pedantic approaches to the interpretation of an award are misplaced. The search is for the meaning intended by the framer(s) of the document, bearing in mind that such framer(s) were likely of a practical bent of mind: they may well have been more concerned with expressing an intention in ways likely to have been understood in the context of the relevant industry and industrial relations environment than with legal niceties or jargon. Thus, for example, it is justifiable to read the award to give effect to its evident purposes, having regard to such context, despite mere inconsistencies or infelicities of expression which might tend to some other reading. And meanings which avoid inconvenience or injustice may reasonably be strained for. For reasons such as these, expressions which have been held in the case of other instruments to have been used to mean particular things may sensibly and properly be held to mean something else in the document at hand.

But the task remains one of interpreting a document produced by another or others. A court is not free to give effect to some anteriorly derived notion of what would be fair or just, regardless of what has been written into the award. Deciding what an existing award means is a process quite different from deciding, as an arbitral body does, what might fairly be put into an award. So, for example, ordinary or well-understood words are in general to be accorded their ordinary or usual meaning.

139    It is important to have regard to the industrial purpose of the agreement and the commercial and legislative context in which it applies when construing it, including the clause itself, and parts of the agreement referred to in the clause as a whole: see Amcor Limited v CFMEU at 249 [13] per Gleeson CJ and McHugh J, 253 [30] per Gummow, Hayne and Heydon JJ, 270-271 [96] per Kirby J, and 282-283 [129]-[131] per Callinan J.

140    Of course, this really amounts to a particular example of more general principles, such that provisions of agreements are to be construed in light of practical considerations to achieve the most reasonably practicable result (see Gill v Donald Humberstone & Co Ltd [1963] l WLR 929 at 934–935 (Lord Reid)) and the cardinal rule that the rights and liabilities of parties under a provision of an agreement are determined objectively, by reference to its text, context (the entire text of the agreement as well as any document or statutory provision referred to in the text) and the purpose or objects to be secured. The appreciation of the purpose or objects is, of course, facilitated by an understanding of the genesis of the agreement or transaction, the background, and the context in which the parties are operating: see, for example, Mount Bruce Mining Pty Limited v Wright Prospecting Pty Limited [215] HCA 37; (2015) 256 CLR 104 at 116 [46]–[52] (French CJ, Nettle and Gordon JJ).

141    Applying this approach, although maladroitly drafted, I think the meaning of clause 1.3 is tolerably clear. Without obscuring or distorting context or meaning, it can be broken down into the following component parts:

    in the event that “as a consequence” of Patricks either: (a) directing employees to work differently to accepted practice; or (b) a suspected breach of the Enterprise Agreement (that is, a Work Change Dispute or a Suspected Breach Dispute) exists;

    work in the Terminal by the employees is to continue as it existed prior to the dispute arising for a defined period (being 72 hours);

    during this defined period, a discussion is to take place between identified representatives of Patricks and the Union (or their nominated representatives);

    if, following such a discussion, Patricks then proceeds to direct the employees to carry out work “contrary to the terms” of the Enterprise Agreement or accepted practice (being the practice as it existed prior to the dispute arising), then a certain state of affairs is to exist;

    that state of affairs is that the then current position continues, that is, work continues as it existed prior to the dispute arising to allow the “matter” to proceed through the DRP (which necessarily contemplates the “matter” can proceed in accordance with the DRP);

    this state of affairs continues until the “matter” (that is, the continuing dispute) has been determined through the DRP; and

    this is all subject to a proviso (not suggested to be relevant here) that the regime has no application “where there has been genuine [prior] consultation under the consultation and change clause”.

142    In order to understand how clause 1.3 is to be construed, however, in accordance with the principles I have explained, the operation of the clause cannot be divorced from the Enterprise Agreement as a whole including, critically, the terms of the DRP. Notwithstanding its length, it is necessary that the DRP be set out in full:

SCHEDULE 1 – DISPUTE RESOLUTION PROCEDURE

1.    In the event of a dispute arising in the workplace in regard to the application of this Agreement, the National Employment Standards, or any matter pertaining to the employment relationship (including Company policy) the procedure to be followed to resolve the matter shall be as follows:

Step 1 workplace discussions

2.    The parties shall attempt to resolve the matter at the workplace level within 7 days by:

2.1.    An Employee, the Employee's representative (if requested), and their supervisor meeting and conferring on the matter; and

2.2.    If the matter is not resolved the matter will be raised at senior levels of management, employee representatives and Union officials (as appropriate).

Step 2 National/eve/ discussions

3.    If the matter cannot be resolved at workplace level, the matter may be referred by either party to National level for discussion between the parties.

Step 3 Fair Work Commission

4.    If the matter cannot be resolved at National level, either party may refer the matter to the Fair Work Commission (FWC) or such other tribunal as may replace it. The FWC may deal with the dispute in 2 stages:

4.1.     The FWC will first attempt to resolve the dispute as it considers appropriate, including by mediation, conciliation, expressing an opinion or making a recommendation; and

4.2.    If the FWC is unable to resolve the dispute at the first stage, and at the request of either party, the FWC may, subject to there being no industrial action occurring or having occurred in relation to the matter at hand:

(i)    arbitrate the dispute; and

(ii)    make a determination that is binding on the parties.

4.3.    If the FWC arbitrates the dispute:

(i)    It may also use the powers that are available to it under the Act, and

(ii)    An appeal may be made against the decision.

4.4.    While the parties are trying to resolve a dispute in good faith using the procedures in this clause, the FWC has the power to issue an interim determination which may include an order requiring that, while the parties are trying to resolve the dispute using the procedures in this term, work will continue under the conditions and arrangements that existed before the dispute arose pending finalisation of the dispute (interim determination).

4.5.    In deciding whether to make an interim determination, the FWC must have regard to all relevant circumstances, including, where relevant:

(i)    the strength of the case (at final arbitration) of the party seeking the interim determination;

(ii)    the respective consequences for each party of an interim determination being made, or not made, as the case may be;

(iii)    the conduct of the parties in relation to the dispute, including, where relevant, the conduct of the parties in respect of clause 14 of this Agreement; and

(iv)    any other matters that the Commission considers relevant.

4.6.    Nothing in this sub-clause prevents either Party from seeking an interim order or stay pursuant to the FW Act.

4.7.    An interim determination is binding on the parties.

5.    Either Party may refer the dispute to FWC at any stage of the procedure if the procedure is not being followed or is otherwise inappropriate in the circumstances.

6.    While the parties are trying to resolve the dispute using the procedures in this term:

6.1.    Employees will continue to perform their work as they normally would unless there is a reasonable concern about imminent risk to their personal safety.

6.2.    If an employee has stopped work due to an imminent risk to their health or safety, the employee will comply with a direction given by the Company to perform other available work on full pay at the same workplace, unless:

6.2.1    the work is not safe; or

6.2.2    applicable occupational health and safety legislation would not permit the work to be performed; or

6.2.3    there are other grounds upon which the direction is not reasonable.

7.    The parties must co-operate to ensure that the dispute resolution procedures are carried out as quickly as is reasonably possible.

143    What is evident from the above, is that as one might expect given the context, the procedure contemplates a process where industrial harmony is to be preserved (see clause 6). While the DRP is in operation (and the parties are trying to resolve the dispute), employees are to perform work “as they normally would” unless there is a reasonable concern about personal safety. The DRP puts in place a process of cooperation to ensure the facilitation of the DRP (clause 7). During the DRP procedure, discussions are to take place at a lower level for seven days (Step 1), or if the matter cannot be resolved at the workplace level then the matter is escalated (Step 2). Failing efforts by the parties to resolve the dispute without outside intervention, either party may then refer the matter to the FWC with the DRP contemplating a process of mediation, conciliation or neutral evaluation (clause 4.1) or, in the absence of quelling the dispute by these means, resolution by arbitration or determination.

144    Importantly, focussing on this last step, clause 4.2 provides that if the matter is unable to be resolved at the first FWC stage, the final step of arbitration or determination by the FWC is “subject to there being no industrial action occurring or having occurred in relation to the matter at hand”. Implicit in this, of course, is the premise that during the DRP process leading up to the final step, there would be no industrial action taking place. This premise is further reinforced by the text of clause 1.3. It is important to recall the reference in clause 1.3 to “the matter [having] been determined through the [DRP]”; hence clause 1.3 presupposes that the relevant dispute is one that capable of being determined by the FWC at the relevant step of the DRP (being clause 4.2). A dispute capable of being determined pursuant to the DRP was (having regard to the terms of clause 4.2) one where industrial action had not occurred “in relation to the matter”.

145    It seems to me therefore that it is fairly obvious that clause 1.3 and the DRP operate harmoniously to contemplate a process which involves work continuing during the duration of the process while all efforts are taken for the dispute to be resolved consensually or, failing some form of paction, for the dispute to be determined by the FWC provided no industrial action had occurred or is occurring in relation to the “matter”.

146    I reject the notion that clause 1.3 is applicable to disputes which the parties contemplated would, by their nature, not be subject to the DRP. Of course, it may not be necessary to engage in the DRP because the controversy may be resolved in the 72 hour consultation window, but the clear intention of the parties was that the “matter” must be capable of DRP resolution if the initial consultation fails to achieve resolution.

147    If a relevant dispute arises, it follows that while the “matter” remains capable of resolution through the DRP, Patricks cannot insist on directing employees to carry out work contrary to the terms of the Enterprise Agreement or accepted practice, however, such a restriction does not apply when clause 1.3 has no work to do because the “matter” is no longer capable of being determined through the DRP.

148    When the proper construction of clause 1.3 is properly understood and applied to the facts as found, the No Industrial Action Contention falls away.

IV    Work Change Dispute

149    What is evident from the constructional analysis is the starting point of determining what constitutes the relevant dispute or “matter” for the purposes of the operation of the clause and the DRP. In this regard, the case advanced by the Union as to what constituted the relevant Work Change Dispute was somewhat of a moveable feast. The Union was initially explicit (see the First Respondent’s Outline of Submissions dated 24 August 2018 (OS) at [5]), that the relevant dispute:

… arose in March and April 2017 from Patrick’s decision to relocate Qube’s logistics operation that had been located elsewhere in Botany to the Terminal and to use Patrick employees to load all of the empty containers from that operation on to trains at the Rail Yard in the Terminal.

(emphasis added)

150    It was further submitted that this Work Change Dispute “was notified” by the Union by the First FWC Application on 17 March 2017. The subsequent 11 April Direction amounted, it was said, to an “escalation” of this already existing dispute (OS at [6]). As noted above, this dispute, of course, had been the subject of conciliation in the FWC on 10 April 2017 (Exhibit N, 406). As explained above, on the premise that it constituted industrial action, once the General Stoppage of Work commenced on 20 April, the dispute could no longer be the subject of the DRP because of the operation of clause 4.2.

151    Perhaps recognising the difficulty of framing the dispute as the respondents had initially, the case that was finally put by the respondents and developed in the RS and orally, was that the 11 April Direction did not escalate an already extant dispute, but rather the relevant Work Change Dispute itself arose by reason of the 11 April Direction. Again, of course, on the disputed premise that there was industrial action, once the General Stoppage of Work commenced on 20 April, the dispute could no longer be the subject of the DRP because of the operation of clause 4.2.

152    Irrespective as to what precisely is alleged to be the Work Change Dispute and when it arose, the allegation that what occurred amounted to a Work Change Dispute within the meaning of clause 1.3, fails on the facts. To explain why, it is regrettably necessary to descend into the detail.

Union Submissions

153    In Section C.2 above, I set out the evidence of Mr Graham given in cross-examination as to the extent of change of work within the Terminal. The submission of the Union is that the 11 April Direction involved a direction to “work different (sic) to accepted practice” when one has regard to the fact that “accepted practice” means all of the relevant customary or established procedures associated with the performance of work at the Terminal which may include the work done, but is not limited to the work done. The Union submits that some of the features of the customary way in which work was done at the Terminal, prior to the 11 April Direction, was that containers would enter the front gate of the Terminal on trucks, move through the delivery and receival system to an area known as the Truck Grids where they would then be unloaded by an AutoStrad before being placed on another truck. This truck would then drive through the Rail Loop and deliver the containers to the Rail Yard where they would be unloaded either onto the “stacks” or directly onto trains. Importantly, it is said, there were no transfers of empty containers from the Sublease Area into the Rail Siding and it was rare for any empty containers to be loaded or unloaded at the Terminal. The transfer of empty containers from the Sublease Area and more generally, the loading and unloading of empty containers, did not form part of what could be described as “accepted practice”.

154    The Union gives the example of the fact that prior to the 11 April Direction the Rail Coordinator did not contact the Sublease Area supervisor on the phone and plan out transfers. The need to construct and circulate a memorandum of the level of detail of the 11 April Direction reflects the fact that the commencement of the transfer of empty containers into the rail siding from the Sublease Area involved departure from accepted practice. As the respondent put it, if the transfers were in accordance with accepted practice, why the need for any memorandum or notification, let alone one as detailed as that which was circulated?

155    Picking up on the evidence of Mr Graham, the Union notes that he implicitly recognised the difference between the work performed prior to the 11 April Direction (the “Standard Rail Work”) and the work required by the direction (the “Sublease Rail Work”) (Exhibit A at [34]). A consequence of the change was the regular addition of a “WWR” (an employee classified as a Work Where Required) on shifts where there was a significant number of containers. This involved a change to the manning in the Rail Yard. There were other changes additional to those found in the notification such as the increased volume of containers moving through the Terminal.

Submissions of Patricks and Qube

156    Both Patricks and Qube assert that a change in method for the receival of containers from the Sublease Area bypassing the receival and delivery point at the Terminal does not constitute a direction that employees work differently to accepted practice. The conclusion that there was no actual change to the work of rail employees is revealed by the 11 April Direction itself, where Mr Graham (Exhibit N 783–784):