FEDERAL COURT OF AUSTRALIA

Australian Building & Construction Commissioner v Molina (No 2) [2019] FCA 1014

ORDERS

THE COURT ORDERS THAT:

1.    The application is dismissed.

2.    The applicant pay the respondents' costs.

3.    The applicant have liberty to apply within seven days for order 2 above to be set aside or varied.

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

REASONS FOR JUDGMENT

BANKS-SMITH J:

1    This is an application by the Australian Building and Construction Commissioner for declarations that the respondents contravened sections of the Fair Work Act 2009 (Cth) (FW Act) by threatening to take action to organise or promote a picket line at Perth Stadium, now known as Optus Stadium.

Preliminary matters

Parties

2    The Commissioner has standing and authority to bring these proceedings under s 539 of the FW Act.

3    At the time of the events, the first respondent, Mr Molina (sometimes referred to as Vinnie), was an elected organiser of the second respondent, the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU). He was an officer, employee and/or agent of the CFMMEU for the purposes of s 363 and s 793 of the FW Act (Mr Molina denies that he acted in that capacity with respect to all conduct).

4    It is not in dispute that at all material times, the CFMMEU was:

(a)    an organisation of employees registered under the Fair Work (Registered Organisations) Act 2009 (Cth) and by reason of being so registered, a body corporate by reason of s 27 of that Act;

(b)    a body corporate capable of being sued in its registered name;

(c)    an 'industrial association' within the meaning of that term in s 12 and s 347 of the FW Act, the rules of which provide for membership by persons whose employment consists of or includes building work; and

(d)    a 'building association' and a 'building industry participant' within the meaning of s 5 of the Building and Construction Industry (Improving Productivity) Act 2016 (Cth).

5    Multiplex Engineering and Infrastructure Pty Ltd (Multiplex) was the managing contractor for the design and construction of Optus Stadium. Multiplex was sometimes referred to in the evidence as Brookfield Multiplex or Brookfield. The contractual arrangements were not in evidence and for ease of reference I will refer generally in these reasons to Multiplex.

6    Civmec Construction and Engineering Pty Ltd (Civmec) was an independent contractor engaged by Multiplex under a contract for services to complete structural steel works for the project.

7    There were also many other subcontractors on site.

Alleged contraventions

8    The Commissioner alleges that on 5 August 2016 Mr Molina contravened s 346(b) and s 348 of the FW Act. The Commissioner alleges that the CFMMEU, by the actions of Mr Molina, is also liable for contraventions of those sections by reason of s 363 or s 793 or at common law, or was involved in those contraventions within the meaning of s 550.

9    This is a hearing on liability. The question of any penalty has been deferred, but it must be remembered that the proceedings are under civil penalty provisions. The standard of proof for a contravention of a civil penalty provision is the balance of probabilities. The Court must, however, have regard to s 140(2) of the Evidence Act 1995 (Cth) which provides that, without limiting the matters that a court may take into account in deciding whether it is satisfied on the balance of probabilities, the court is to take into account: the nature of the cause of action or defence; the nature of the subject-matter of the proceeding; and the gravity of the matters alleged.

10    It is generally accepted that s 140(2) of the Evidence Act largely reflects the position at common law, in particular the discussion of the civil standard of proof by Dixon J in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at 361-363.

11    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, it was observed:

[31]    Even though he spoke of the common law position, Dixon J's classic discussion in Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-363 of how the civil standard of proof operates appositely expresses the considerations which s 140(2) of the Evidence Act 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:

'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. Everyone must feel that, when, for instance, the issue is on which of two dates an admitted occurrence took place, a satisfactory conclusion may be reached on materials of a kind that would not satisfy any sound and prudent judgment if the question was whether some act had been done involving grave moral delinquency.' (Briginshaw 60 CLR at 361-362)

12    The serious consequences of these proceedings must be borne in mind when making findings of fact, on the balance of probabilities, concerning the various allegations. That said, the standard of proof remains the balance of probabilities.

Summary of the Commissioner's pleaded case

13    On about 4 August 2016 a fatality occurred on a Multiplex building site in Canberra.

14    On 5 August 2016 (at about 7.10 am) the workers engaged to perform building work on the stadium project, including employees of Civmec, attended a meeting at the site. There were approximately 500 to 550 workers in attendance at the meeting.

15    A number of persons spoke at the meeting. Those persons included Gerard McLaughlin, Robert (Bob) Benkesser, Nigel Alexander, John Pound and Mr Molina.

16    During the meeting, Mr Molina said words to the effect:

How are you going to show a mark of respect for your fallen colleague?

Everyone walked out at Capital and are not returning to work until Monday.

Let's have a show of hands to show a sign of respect for the fallen worker and the family by walking off the job.

17    I interpose to say that the reference to 'Capital' was a reference to Capital Square, another Multiplex building site in Perth at that time.

18    During the meeting Mr McLaughlin said words to the effect:

The site is operational.

19    The meeting ended between about 7.35 am and 7.45 am when approximately 30% to 50% of the workers left the site, including some of Civmec's employees.

20    Shortly after the meeting, Civmec's Project Manager, Paul Buckie, met with the employees of Civmec who had remained at the site. Mr Buckie instructed those remaining employees to stay on site and wait for further direction.

21    Mr Molina then approached Mr Buckie and said words to the effect:

Paul you need to send your guys home. Have some respect. You need to send your guys home.

22    Mr Buckie responded to Molina saying words to the effect:

Vinnie, you know I can't do that.

23    Mr Molina then said to Mr Buckie words to the effect:

If you send your men back out to site expect a picket line on Monday.

24    Mr Buckie then had a conversation with Mr McLaughlin and others. Multiplex had sent its crane operators home. Civmec decided to send workers home because without crane operators they could not properly perform their work.

25    What Mr Molina said comprised a threat to picket the site on the following Monday if Civmec sent its workers back to work.

Summary of the respondents' defence

26    The parties disagree as to what was said at the meeting with workers and disagree as to what was said afterwards between Mr Molina and Mr Buckie.

27    In short, the respondents agree that the meeting took place and say that the workers were provided with an update as to the circumstances surrounding the fatality in Canberra. However, they say that Mr McLaughlin said:

The site is operational for all those that wish to remain.

28    The respondents agree that there was a conversation between Mr Molina and Mr Buckie, but contend that its terms were quite different. They allege that Mr Buckie referred to Mr Molina as a 'black cunt'. They allege Mr Molina said words to Mr Buckie to the effect that if Mr Buckie did not withdraw the racial slur then Mr Molina would call on his ethnic community members to set up a picket line to bring attention to racism on the site.

29    In other words, Mr Molina agrees that he used the word 'picket' in a conversation with Mr Blackie but asserts a positive case that it was said in response to a racial slur.

30    These competing positions give rise to various difficult questions about what occurred during the morning of 5 August 2016.

Witnesses

31    The Commissioner called four witnesses. Mr Buckie gave evidence. The other witnesses were from Multiplex. They were Mr McLaughlin, who was the Senior Site Manager; Craig Farrow, who was the Senior Site Supervisor; and Joel Flanegan, who was an Occupational Health, Safety and Environment Advisor employed at the site.

32    In general, I have accepted the evidence of the Commissioner's witnesses.

33    Mr Buckie had a good recollection of events. His evidence was precise and unemotional. When it was put to him that certain things he had said may have been wrong, he readily conceded. For example, he readily accepted that despite his previous evidence to the contrary, there was no microphone at the meeting. He readily accepted, having previously said the workers were standing in a circle at the meeting, that in fact it was more of a semi-circle. He was prepared to answer questions even though the answer may not have presented him in the best light: for example, he accepted at one point that a worker's union membership may sometimes influence his decision-making process. There were parts of his evidence that were less precise than others and I will deal with some of those aspects further. I found him to be a credible and reliable witness, and for the most part his evidence was consistent and plausible.

34    Mr McLaughlin did not have a strong recollection of all events but he was impartial and gave every appearance of attempting to recall and answer questions as best he could. His memory of the events of the important meeting was strong, but his recall of details of other events of the day was weaker. He was a credible witness.

35    Mr Farrow was a serious and thoughtful witness. He also gave his evidence in an impartial manner and it was generally consistent with a file note that he had prepared at the time that was tendered. His evidence was credible and reliable.

36    Mr Flanegan was forthcoming and was an impartial witness. He freely admitted that he could not remember much about the day, but relayed what he could, and was able to provide some colour to the description of events. He was a credible witness.

37    Mr Molina gave evidence. The respondents also called Bob Benkesser, a Safety Officer employed by the CFMMEU, and Nigel Alexander (known as 'Nugget') who was employed as a labourer and dogman with Safe and Sound (a subcontractor on the project) and was its site delegate.

38    I found Mr Molina to be an unimpressive witness. He was evasive and avoided saying anything that he perceived may be adverse to his case. That approach affected his willingness to be frank. On more than one occasion he was asked repeatedly to answer a question and avoided doing so: an example was where he was asked in cross-examination whether he agreed with something Mr Pound said to the effect that the workers should down tools and go home. Mr Molina did not answer the question, saying several times that it was 'up to them' (the workers). I was left with the impression that he was willing to create a story to explain his actions and that he had carefully rehearsed that story. However, I found it unconvincing. It will be necessary to return to some of these matters.

39    In general, where there was a conflict in the evidence between Mr Molina and Mr Buckie, I have preferred the evidence of Mr Buckie.

40    Mr Benkesser and Mr Alexander both gave the impression of taking care to ensure their evidence was consistent with Mr Molina's pleaded defence. For reasons addressed more fully below, there are parts of their evidence that I consider to be unreliable. I have generally preferred the evidence of the witnesses for the Commissioner where there is inconsistent or conflicting evidence.

The events preceding the 'picket' conversation

41    There was considerable evidence about events leading up to the picket conversation. That included conflicting evidence as to precisely where people were standing at the meeting, the size of the crowd, whether people took phone calls, whether people could hear all or some of what was said and various other details. The significance of some of that evidence was questionable and it is not necessary to address all of it in these reasons. However, the paragraphs below address the pertinent aspects.

The meeting

42    The catalyst for the events of the day is not in issue. A worker was killed on a Multiplex construction site in Canberra on 4 August 2016 in an accident involving a Franna crane. It appeared that (at least) Mr McLaughlin and Mr Benkesser heard about the crane accident. Early on the morning of 5 August 2016 (around 5.50 am) Mr Benkesser telephoned Mr McLaughlin and proposed a site meeting for workers at the project site. He also telephoned Mr Molina to inform him of the death.

43    Mr McLaughlin agreed to a meeting to inform workers of the fatality and to reinforce the need for safety.

44    Mr Molina and Mr Benkesser arrived at the site shortly after and spoke with Mr McLaughlin, who confirmed the meeting was arranged.

45    Mr McLaughlin said that he also ensured that certain operations involving Franna and Merlo cranes were stood down until further notice, and until there was a better understanding of what had happened in Canberra. The direction Mr McLaughlin received from senior management of Multiplex was to that effect. There was a separate crane pre-start meeting before the general meeting and subcontractors and their crews were told that those activities were closed as and from that morning. Other than the position with the cranes, and the usual pre-start checks, the witnesses recalled no additional equipment inspections being proposed and there was nothing to suggest that other works could not proceed.

46    The meeting in issue took place in the site camp area. According to Mr McLaughlin the camp area was designed to cater for nearly 2,000 people and was built as temporary accommodation around an open courtyard area, with a metal roof over the top for shade and shelter. The camp area was designed as a cool area, somewhere for workers to shelter, eat, and take their various breaks and was also used for meetings about a range of things, including safety.

47    At the relevant time, the project was accommodating about 700 people, and according to most witnesses, about 500 to 550 of them came to the meeting and congregated in the courtyard area. Some of the workers had already gone to their particular work areas but were brought back to the camp for the meeting. Of those workers, around 110 were Civmec workers. It was the largest subcontractor on site at the time. Civmec's records collated after the event indicated that about 110 of its workers attended site that day and some 25 left without authorisation from Civmec. There were many other subcontractors on site.

48    The above facts are not relevantly contentious.

Mr McLaughlin opens

49    Mr McLaughlin said that he opened the meeting and informed workers about the fatality. He stood with Mr Molina and Mr Benkesser, and recalled that Mr Alexander was also present. He recalled that he stood facing a large semi-circle of workers, and it was necessary for the speakers to raise their voices to be heard. He said that he reminded workers about being careful in a high risk environment and the importance of a safety culture. He also said that he wanted to mark the passing of their Multiplex worker and he invited everyone to stand up, take off their hard hats and mark the moment with a minute's silence. Mr McLaughlin's evidence was that the minute's silence was adhered to.

50    Mr Molina agreed that Mr McLaughlin opened the meeting and talked about the fatality, but could not recall what else was said at that point other than he thought Mr McLaughlin probably spoke about safety checks.

51    There was some inconsistent evidence about whether or not Mr Benkesser or Mr McLaughlin may have taken a phone call during the minute's silence but whether such calls occurred at that time is not critical.

52    What is not in issue is that at some point during the meeting, news filtered to the workers and was relayed that workers at Capital Square had walked off the job. Mr McLaughlin said he received a call from Travis Hart at Capital Square during the meeting telling him the workers had walked off that site, and he walked away from Mr Molina and Mr Benkesser to take the call, and then passed that information on to a few of the workers close by to him at the time (probably Mr Dawson, Mr Flanegan and Mr Farrow).

Mr Benkesser speaks

53    After the minute's silence, Mr Benkesser spoke. According to Mr McLaughlin, Mr Benkesser started by noting the fatality. Mr McLaughlin continued:

And Bob then said similar to the fact of that, 'Is this how you want to mark respect? Is this mark of respect good enough for one of our fallen construction workers? Do you think this is right?' along those lines.

54    Mr McLaughlin continued:

Then I remember saying then to the - to the crowd that I just wanted to remind everyone that the site is open for normal operations today. I had - I had not received any - direction from senior management in relation to closing the site or anything to that effect. The site was - in our view, it was to stay open and this is our way of marking the respect with a minute's silence. And if anything was to change during the course of the morning from senior management I would get everyone back in and we would have another communication meeting if that - if that was needed.

55    Mr Farrow attended a toolbox meeting in particular with those subcontractors involved in crane use, and then also attended the meeting. He gave evidence that Mr Benkesser took a phone call around the time of the minute's silence, and then told the meeting that workers from the site down the road, Capital Square, were going home and he believed this site should do the same.

56    Mr Benkesser accepted that he said something about Capital Square, and he believed he may have said something about the workers at Capital Square going home as a mark of respect.

57    Mr Molina said it was possible that Mr Benkesser said something about workers at Capital Square walking off site, but he denied that Mr Benkesser said anything like 'how are you going to show your respect for your fallen colleague'. He claimed Mr Alexander said something along those lines.

58    Mr Alexander denied that Mr Benkesser said anything about Capital Square.

Mr Alexander and Mr Pound

59    According to Mr McLaughlin, Mr Alexander then said a few words along the lines of 'this is how we're going to mark respect for a fallen construction worker' and rumblings started amongst the workers with people calling out things along the lines of 'this is not how we show respect'. Mr Buckie recalled Mr Alexander saying something like 'we've done this for hundreds of years, we go home, have some respect for the family'. Mr Molina also recalled Mr Alexander saying words to that effect. Mr Benkesser said Mr Alexander said something like 'I move a motion that we go home'. Mr Alexander said he asked if anyone wanted to put forward a motion to go home 'in respect'.

60    Mr McLaughlin also recalled a 'good construction worker', Mr Pound, saying 'For fuck's sake guys, this is not good enough, this is not how we show respect' or words to that effect. Mr Molina said that Mr Pound also said words to the effect 'What's wrong with you blokes disrespecting a deceased Brookfield employee? Let's down our tools for the day and come back on Monday'. Mr Benkesser also said Mr Pound said something like, 'stuff this, we should be going home in respect'. It was not in issue between the parties that Mr Pound said things along those lines at the meeting.

Mr Molina speaks

61    According to Mr McLaughlin, Mr Molina then spoke to the crowd, saying similar things to Mr Pound, and then said that 'we should take a vote to see if we should stop works for today or leave site'. After an initially quiet response, Mr Molina asked the workers to raise their hands. There was no show of hands. He asked them again - there were rumblings from the crowd to the effect that they 'should get on with it' and probably around 50% raised their hands, although there was a lot going on and he could not be sure of numbers. Mr Molina then said words to the effect that he took it as 'a positive vote where the lads were to leave site for today, or … are to leave site if they want to'. Mr McLaughlin did not recall anyone else calling for a vote that day.

62    Mr Buckie did not hear all that was going on (he did not hear Mr Benkesser) until he moved to a better position but he was able to give evidence as to certain things that he did hear. He did not say who moved for any vote. He gave evidence that Mr Molina said there was an opportunity or choice for everyone to decide what they were going to do that day in response to the news and that Multiplex had alleged the site was open. He referred to chants from some of the workers that 'we go home', that there was a lot of noise and that people started to raise their arms, which he took to be a vote.

63    Mr Farrow said that Mr Molina also referred to Capital Square having gone home and stated that the Perth Stadium site should do the same. Mr Farrow's recollection was supported by a contemporaneous note. Mr Farrow said that Mr Molina asked for a show of hands to go home and that at first, not many hands went up, but that after Mr Molina asked for another raise of hands, hands went up and eventually Mr Molina called that there were more than 50% raised 'and so the site would be leaving'.

64    Whilst Mr Flanegan was unable to recall who called for the vote, he did recall that at the start when hands started to go up it was not a 'managed vote' but then 'someone said let's have a vote of people who don't want to stay, basically'. He did not recall Mr McLaughlin saying anything about Capital Square.

65    Mr Molina's evidence as to his involvement at the meeting was quite different. He says it was Mr Alexander who called for the show of hands and that his own involvement was that he noted that about half the workers had put their hands up and he said something like 'Guys, is anybody against it', and 'does anybody disagree with this', and he saw a couple of hands go up. He accepted under cross-examination that he told the meeting that 'it appears that the guys from Capital Square went home'. He said he passed that information on so that the workers were informed. He said he repeated what others in the front of the crowd said, so they could be heard. He could not recall saying anything else. He denied that he called for people to vote or speak against any motion to walk off the site. He said the only person who asked for a show of hands was Mr Alexander, and that it was Mr Alexander or Mr Pound who said there was a majority vote to walk out.

66    Mr Benkesser said Mr Molina essentially just repeated what Mr Benkesser had already said to the meeting. He said the last thing he remembers Mr Molina saying was 'if anyone wants to vote for or against the motion, here is your opportunity'. Mr Benkesser said it was not really the role of the CFMMEU to promote walk offs but rather it would do things like facilitate collections for families of victims, but not try and encourage workers to go home.

67    Mr Alexander said Mr Molina said a few words about the dead worker and the tragic circumstances. He said that he (Mr Alexander) had asked the meeting for someone to put forward a motion to go home, then someone seconded it and Mr Molina asked if anyone wanted to speak against the motion. But Mr Alexander said that he was the one who said there was a majority to walk out.

Mr McLaughlin speaks at the end of the meeting

68    According to Mr McLaughlin, there was then confusion with people approaching him, asking what was going on. He said that he was the last person to speak at the meeting, trying to reaffirm the position that management's stance was that the site was open for normal operations that day. He was challenged as to this under cross-examination but was consistent in his evidence that he was the last person to speak and that he said that the site was open.

69    Mr Buckie's evidence was also consistent in that words to that effect were said at some point by Mr McLaughlin (although he said it was said before Mr Molina spoke). Mr Buckie's evidence was consistent with that of Mr McLaughlin as to what he had said; that the site remained operational (upon re-examination). Mr Farrow's evidence was also consistent: he recalled that Mr McLaughlin explained that the site was open and did not recall him saying anything further to the effect that it was open 'for those who wished to remain'. Mr Flanegan said that Mr McLaughlin said 'from a management point of view the site is still open' and he resisted suggestions that more had been said.

70    Before turning to the respondents' witnesses I note for completion two matters:

(a)    first, at one point counsel for the respondents, Mr Dixon, put to Mr McLaughlin that what he actually said was: 'The site is operational for all of those who wish to remain'. The transcript indicates that Mr McLaughlin responded 'from my memory, yes, I was the last person to say those words that the site is open'. The transcript does not properly reveal the nature of the witness' evidence and is apt to mislead. At the time it was clear to me from the manner of his quick answer that when Mr McLaughlin said 'yes …', he was not in fact agreeing with all that Mr Dixon had put to him, but was limiting his answer to the statement that the site was open. Counsel for the Commissioner, Mr Keane, also noted the manner in which the evidence was given and was concerned as to how it might appear. In the circumstances, I permitted Mr Keane to re-examine to clarify the witness' evidence. Mr McLaughlin reiterated that what he said was that the site was open. In those circumstances, I do not accept a submission made by Mr Dixon in closing submissions that Mr McLaughlin indicated that the site would remain open for those who wished to remain;

(b)    second, Mr Buckie said at one point that 'he gave a choice of what to do on the day'. Mr Buckie's evidence was a reference to something Mr Molina said, not Mr McLaughlin. There was questioning from Mr Dixon that (inadvertently) suggested that Mr Buckie said those words with respect to Mr McLaughlin. Whilst not of great significance, it was apparent that Mr Buckie's answer that appeared to attribute those words to Mr McLaughlin may have been influenced by the question. Mr Buckie was re-examined on the point and said (as he had said several times in examination-in-chief and in cross-examination) that he recalled that Mr McLaughlin said the site remained operational.

71    Mr Molina claimed that Mr McLaughlin said, 'The site is operational to those who wish to remain'. He repeated that phrase during his evidence and said those were the exact words used. He said that he did not challenge what was said because he agreed with it - that people were free to come or go. Mr Benkesser said that Mr McLaughlin said 'the site is operational for those who choose to stay' and that he remembers that he used those precise words. Mr Alexander also said that Mr McLaughlin said that the site was open for anyone that wanted to stay and work.

Conclusions - the meeting

72    In making findings about the meeting, it is important to accept that the recollections of people present at a meeting of some scale and held some two years earlier may differ. It is natural to expect that people may have a slightly different recollection of the actual words used by the speakers. However, having considered the evidence - some consistent and some inconsistent - I am satisfied to the requisite standard of the following matters:

(a)    Mr McLaughlin commenced the meeting and told those present generally about the fatality, reminded workers to be careful in a high risk environment and reminded them of the importance of a safety culture;

(b)    Mr McLaughlin invited those present to participate in a minute's silence to acknowledge the passing of the worker;

(c)    after the minute's silence, each of Mr Benkesser, Mr Alexander and Mr Molina spoke;

(d)    word had filtered through to people at the meeting that workers at the Capital Square site had walked off the job and Mr Benkesser also knew of that;

(e)    Mr Benkesser challenged whether the minute's silence was sufficient and he encouraged the workers to also consider a walk off: he did this by referring to the Capital Square response, by saying words to the effect that they should do the same and challenging them with words such as 'is this how you pay your respects, is this good enough?';

(f)    Mr Alexander and Mr Pound also encouraged the workers to walk off. For example, Mr Alexander said words to the effect that 'we've done this for hundreds of years, we go home, have some respect'. By those statements Mr Alexander also encouraged a vote to leave and he also said things that indicated the workers should vote and raise their hands;

(g)    Mr Molina also encouraged workers to walk off the site. He also mentioned the Capital Square site. He told those present that they had an opportunity to decide what to do. He said they should take a vote. He asked them to raise their hands on two occasions and after enough hands went up he eventually said words to the effect that there was a vote to leave the site; and

(h)    Mr McLaughlin was the last person to speak and he said words to the effect that the site was open and operational. He did not put a gloss on that by adding words along the lines of 'for those who wished to remain'.

73    In coming to these conclusions I rely in particular on the evidence of Mr Farrow and Mr McLaughlin. I accept their evidence as to the role of Mr Molina. Mr Farrow's note was tendered without objection and accords with his oral evidence. Mr Farrow had met Mr Molina previously so there is no reason to think he confused him for another speaker. Mr McLaughlin was in general a candid witness. Although Mr Buckie did not give evidence as to the instigation of the voting process, his evidence was otherwise generally consistent with that of Mr McLaughlin and Mr Farrow.

74    Although I do not doubt Mr Alexander was vocal at the meeting, I find his evidence to be generally unreliable as to the specifics of what was said: for example, he denied that Mr Benkesser said anything about Capital Square, even though Mr Benkesser accepted under cross-examination that he did. I accept Mr Alexander had a not insignificant role both in encouraging workers to leave and in facilitating a vote, as noted above. The fact that he did so is not inconsistent with Mr Molina also being involved in calling for and facilitating the voting.

75    I do not accept the picture painted by Mr Benkesser that Mr Alexander was the protagonist of the vote. Mr Benkesser sought to deflect attention from Mr Molina's role by elevating Mr Alexander's role. For example, he said that Mr Alexander 'moved a motion that we go home'. Mr Alexander did not say he moved the motion. He said he took responsibility for calling for a motion but said someone from amongst the workers put forward a motion, another worker seconded it and he 'finished it off' by calling for people to put their hands in the air and said 'let's go home'. The other witnesses did not refer to a motion being moved and seconded from the workers. Mr Benkesser also said that the CFMMEU does not promote walk offs, as if to suggest any encouragement at the meeting came only from others and not from either him or Mr Molina. Even if that is the CFMMEU's position, I must assess what occurred on the day in question, and I consider that by his conduct at the meeting Mr Molina encouraged a walk off of the workers.

76    I have formed the view that Mr Benkesser and Mr Alexander gave evidence that was tailored to support Mr Molina's defence in this matter. In particular, I consider their recitation of the additional words from Mr McLaughlin (that is, to the effect the site is open for all who wish to remain) was misplaced and did not come from any genuine recall, but rather was based on the pleaded defence and reflected a desire to support (or not damage) Mr Molina's case.

77    I do not accept that Mr Molina gave a full and accurate account of the meeting. I do not consider he made a genuine attempt to recall the specifics when under cross-examination. I referred earlier in these reasons to an example where he resisted answering questions where it seemed that he perceived it might be damaging to his case. I found much of his evidence was directed at downplaying his own role and at negating any suggestion that he encouraged the workers to leave.

78    On the other hand, I found Mr McLaughlin's evidence of the meeting to be credible and reliable, as was the evidence of Mr Farrow, and their evidence was that Mr Molina twice asked for a show of hands.

79    Mr McLaughlin, Mr Buckie, Mr Farrow and Mr Flanegan all gave consistent evidence that Mr McLaughlin said words to the effect that the site remained open. In particular, Mr Flanegan, despite cross-examination on the point, did not waiver from his recollection that Mr McLaughlin said words to the effect that from a management point of view the site was still open. Mr Flanegan was an objective witness. Mr McLaughlin's evidence was also more compatible with the objective fact that, leaving aside Multiplex employees, it was not for him to tell workers they could leave. That was a matter between the workers and their employers. Mr McLaughlin's evidence was also more compatible with the fact that the safety issue of cranes had been dealt with by him, and that part of the operations was in effect quarantined at that particular time. Against that backdrop it is inherently credible that Mr McLaughlin told the workers that the site was operational and without the qualification suggested by the respondents.

The threat

After the meeting

80    The meeting finished at about 7.30 am. According to Mr McLaughlin, from the end of the meeting until about 9.00 am workers progressively left. About 30% had left by 8.00 am. He did not try to make them stay as they were not Multiplex employees, but employees of the subcontractors. His evidence was that he spoke to the management of the subcontractors, and it was for them to make a decision about their own employees, and he saw his role as trying to facilitate whatever operations could continue and to consider if it was feasible to keep the site open. Many subcontractors remained on site and continued with their work (even where some of their work force may have left).

81    As to the Civmec workers, Mr Buckie said that he tried with the help of Carl Lemon (his construction manager) and other supervisors to gather his Civmec workers together so he could give them some direction about what was happening that day and the next day, and to remind them that they were not to go home, and that 'they can't just disappear'.

82    Mr Buckie estimated that he was able to gather and account for around 75% of his workers, and that the balance had left at that point. He gave his workers an opportunity to ask questions and told them that the position was that the site was open and operational, and that they should wait on site while he took direction from Multiplex as to what should happen next. He told them to wait because he understood that they could not legally leave the site without approval but if they left, that was their choice.

83    The evidence of Mr McLaughlin and Mr Buckie on these matters was not challenged in any real way and I accept it.

Mr Molina speaks with Mr Buckie

84    According to Mr Buckie, after he had spoken to his workers he was approached by Mr Molina. Mr Buckie was still with his workers at the time, who were sitting at tables or standing around near him, and eating or drinking while they awaited further direction. They were in close proximity (the closest person was only a metre or so from him).

85    Mr Buckie's evidence as to his conversation with Mr Molina was as follows:

So when Mr Molina approached you, what happened?---He spoke to me.

What did he say?---He said, 'You need to send your guys home. Have some respect, send your guys home'.

And what did you say?---I responded, 'Vinny, you know I can't do that'.

And did he respond to that?---He did.

What did he say?---He said, 'If you don't send your guys home, you can expect a picket line on Monday - if you send your guys back up to work'.

And what happened then?---I made no further comment.

Yes. And what happened after that?---He walked away. About 10 paces behind him, Nugget walked past me as well and said something to the effect of, 'Have some respect. Send your guys home'.

86    Mr Buckie said that there was no angst in the conversation at all and that was the extent of the 'two-line conversation' between him and Mr Molina. He said he did not take the conversation personally and did not get upset about the conversation. The threat was not enough to act to send workers home. He was not threatened or concerned by it and he continued to keep his workers on site for another two or so hours. The threat did not affect his ability to make a choice about what he would do that day. His evidence was that Mr Molina said nothing about blocking access or egress by way of a picket line. He did not say there would be industrial action or a strike.

87    Mr Molina's evidence was that after the meeting he walked around and was talking to workers and then he bumped into Mr Buckie.

88    Mr Molina's evidence was as follows:

And you then say at 8 o'clock in the morning you bumped into Mr Buckie. What's the first thing that was said?---Well, Buckie was very upset.

Well, just - what was the first thing that's said when you bumped into Buckie?---I said to him, 'Paul, what you guys going to do?' 'What are your guys going to do?'

Okay. Now, why did you ask that, Mr Molina?---Just no particular reason, but the guys have approach me and asking, 'What are we going to do? Are we staying? Are we going?' And I used to refer them to the supervisors.

Yes?---'Go and speak to your supervisors.' So I just wanted to know in case someone else ask me.

Yes. Now, listen very carefully to my next question, Mr Molina. What, if anything, did Mr Buckie say to you in answer to your question?---Well, Buckie was very - very upset, very angry, and he said to me, 'No black cunt tell me how to run my business.'

And how did you feel when he said that to you, Mr Molina?---Firstly, I was in shocked. You know, I didn't expect the racial slur from him and I got angry and I said to him - - -

I will just come to that. I'm just asking you how you felt first about it?---Yes. Well, yes. I felt angry.

Yes. And in your experience, has that happened very often on a building site, where someone refers to you like that?---Unfortunately, I did have an - it doesn't happen very often, but I did have a - an unfortunate experience in another Multiplex site, the Crown Towers, when they were building there - the Crown Towers, the casino. Contractor from Queensland who came to do the piling probably didn't like my accent, and after having a meeting, he said, 'Fuck off back to Mexico,' which I reply, 'Fuck off back to Queensland,' but I did put a formal complaint to Multiplex, to the - to the supervisor and - you know, there are policies and - - -

Yes?---This shouldn't - this shouldn't happened, but the C-word sometimes is used.

On the building sites, you mean?---On building sites.

Yes. Now, listen very carefully to this next question. What did you then say to Mr Buckie?---I was angry, but I said to him, 'Listen, Paul, if you don't withdraw your remarks, I'm going to bring a - like immediately put a picket line. And [complaint], you know, more in a way against racism.

Yes. And do you recall the exact words that you used. Was that - - -?---Yes, I asked the team [sic - said to him] whether they were going to put a community - a community protest about this incident.

And what did you mean by picket line, when you said that?---Well, when I said a picket line, I meant a community protest, a peaceful demonstration to try to ... people on race issues and I didn't mean a blockade preventing people coming in and out.

And when you say your community, what do you mean by that in that sentence?---People from non-English speaking background, you know, migrants, Aboriginal people.

89    Mr Molina said that after he told Mr Buckie about the picket, Mr Buckie apologised:

Now, what did Mr Buckie say to you after you told him about the picket?---Our encounter was quite short and he said, 'Listen.' He look at my reaction and he said, 'I apologise.' He has been under extreme pressure. 'We got this big trusses coming tomorrow. We need to put them up and I'm under so much pressure from - from Multiplex. We're having a dispute and we've got to organise this traffic management for Saturday morning and it costs $20,000.'

90    Mr Molina said that nothing else happened after the conversation - they shook hands and he left. But he said that at the time he 'got very pissed off' and 'got very angry'. He said he did not make any fuss or scene about it because Mr Buckie had apologised, but he was a victim of a racial slur and 'that is despicable'.

91    Mr Molina said he then left the site with Mr Benkesser. Mr McLaughlin escorted Mr Molina and Mr Benkesser from the site at around 8.30 am.

92    Mr Benkesser gave evidence that he saw Mr Molina shake hands with Mr Buckie. There was no suggestion that Mr Molina told Mr Benkesser about the conversation with Mr Buckie that Mr Molina alleges had just occurred.

93    Mr Buckie did not say anything in his evidence-in-chief about a hand shake, and was not asked about it in cross-examination. I will return to this issue.

Mr Buckie speaks to Multiplex

94    There is some inconsistency in the evidence of Mr McLaughlin and Mr Buckie as to where the next conversations occurred.

95    Mr McLaughlin recalled that after the meeting, Mr Buckie and Mr Lemon of Civmec came to speak to him. His memory of this conversation was not strong and he accepted that he recalled aspects of the conversation only after speaking to Mr Farrow and Mr Flanegan about events of the day. He said that the conversation 'would have started' in the camp area. He recalled that initially he told them that the site remained open and the Civmec workers could return to work. However, he later recalled (before affidavit evidence was exchanged) that there was also some discussion about the fact that he (Multiplex) did not have enough crane drivers left to operate safely and that a number had left the site after the meeting. He explained in cross-examination that for safety reasons if the Multiplex cranes were not operating, it was not possible for Civmec to operate its cranes. Mr McLaughlin said that the crane drivers who left site were under his control and that Civmec could not operate without Multiplex having the resources and the tower cranes to make sure that they did not clash. He was of the view that there was some other work for Civmec workers to undertake albeit they would not have been at full capacity or full operational mode. Mr McLaughlin could not recall who else was present during the discussion but thought that possibly Mr Farrow was there. He could not remember who said what, but thought that Mr Buckie or Mr Lemon said that their workers would do some 'toolboxes or safety things' but they did not have enough drivers to be productive and that they would send workers home.

96    Mr Buckie's recollection of a conversation with Mr McLaughlin was more precise but not entirely consistent. He recalled going to the Multiplex office and having a very brief meeting with Mr McLaughlin. He said he went with Mr Lemon, and Mr McEvoy (the plant project director) was already present in the room with Mr McLaughlin. Mr Buckie said that in effect he had most of his work force still and they were not going anywhere, but he wanted some direction. There was then a discussion about the difficulty of undertaking installation or erection work without key personnel crane operators who had already left the site. Mr Buckie said to them:

I am concerned that if we stay on site and we go back out that, you know, there's not a lot we can do. I have got a schedule that I have to obviously, work to. There's nothing progressive that we could get on with on site without the crane operators on site.

97    Mr Buckie continued:

I alluded them to the fact that I had had, you know, the conversation with Mr Molina to the extent that if I did put my men back out to work, that there potentially could be the picket on Monday. That was pretty much it. The conversation didn't really go any further than, 'Well, you do what you want. You know, you're the subcontractor. Our final line is the site is open. It's operational. You're a subcontractor. You need to decide what you want to do'. At that point I took the decision to - to advise them that I would most probably send my crew home.

98    There is an issue as to whether Mr Buckie told Mr McLaughlin or Mr McEvoy about the picket. Mr Buckie was asked whether he told them about any threat made by Mr Molina, and Mr Buckie said that he mentioned the picket.

99    Mr McLaughlin did not mention being told about any picket during his conversation with Mr Buckie. However, his evidence on this issue must be regarded carefully. Mr McLaughlin was not asked under cross-examination whether Mr Buckie had mentioned any picket. He was asked quite specifically whether he made any note of any threat of industrial action made by Mr Molina. He was asked whether he would have made a note if he was told by someone like Mr Buckie or Mr Lemon that there was 'something as critical as a threat to take industrial action including blocking access and egress to the site'. He accepted he would have made a note if that were the case.

100    Mr Buckie said that after he spoke to Mr McLaughlin he then waited for his Human Resources team to arrive, and shortly after he sent his workers home.

Other evidence relevant to the conversation

101    Mr Buckie said that he did not report the threat as industrial action to Multiplex, although there was a contractual obligation to report an industrial threat. He said that any such report would be a notification separate to any notification of delay for the purpose of delays/extensions of time under the contract. Nor did he inform the Commissioner that anything occurred that he considered to be a threat, although he would have done so had he considered that what was said was 'serious enough'. He did not consider what had been said was at a level to warrant a response. Mr Buckie said he did not make any approach to the Commissioner about Mr Molina (he said it was an inspector employed by the Commissioner who later came to the site and asked him what had happened on the day).

102    As is apparent from his evidence referred to above, Mr Molina also gave evidence that he had previously made a formal complaint on a Multiplex site when told by a contractor to 'fuck off back to Mexico'.

103    Mr Molina is from Guatemala in Central America and identifies as ladino (mixed race but from the cities). He said that he does a lot of work with multi-cultural members of the workforce as they are easy targets for exploitation, and 'the union is quite strong on these issues'.

104    Mr Molina said that what he meant when he said 'picket line' was a community protest, a peaceful demonstration; he did not mean a blockade preventing people coming in and out; he was referring to 'a peaceful protest, locational, placards showing people … it's an issue we need to look at people …'.

Other subcontractors remained on site

105    According to Mr McLaughlin (and he was not challenged on this evidence), workers for a number of other subcontractors remained on site and continued to work after the meeting. The subcontractors identified were Sandwell, Firesafe, Polyseal, GMF, Brierty and Deep Green (some workers for those subcontractors had left, but some remained). Mr Buckie said he was aware of one subcontractor whose workers did not go back to work.

Purported earlier tension between Mr Molina and Mr Buckie

106    There was evidence from Mr McLaughlin that there had been a dispute between Mr Molina and Mr Buckie about Civmec having segregated union and non-union members in the crib room, long before the time of the meeting. He said no industrial action had arisen out of that dispute. Mr Buckie did not recall any conversation with Mr Molina in which it was suggested that the manner in which the crib rooms was set up was 'discriminatory'. Mr Buckie did not shy away from the fact that possibly there were discussions about segregated crib rooms but thought perhaps conversations took place with his human resources consultant on site. Mr Buckie said if there was a problem it would have been resolved.

107    Mr Molina said that he thought Mr Buckie did not like him, that they disagreed about segregated crib rooms and that Mr Buckie 'kept on getting angry' with him because he 'apparently' accessed non-union crib rooms, although they would 'agree to disagree'.

108    I note that Mr McLaughlin said he was not aware of anyone raising any issue about racial discrimination on site. Further, Mr Molina said that Mr McLaughlin and Multiplex were good at averting issues that may otherwise lead to action.

109    There were also discussions over a claim by Mr Molina that Civmec was keeping workers on site after the temperature had exceeded heat management limits of 37 degrees. Mr Buckie recalled Mr Molina raising a concern about heat: he said the issue raised by Mr Molina was managed and that he was able to provide an explanation and a document that explained how heat was being managed. There was no industrial action taken and he did not see it as something with the potential to escalate into a serious industrial issue if it were managed.

110    Mr Molina portrayed that incident as a 'big argument'.

111    The respondents referred to an allegation allegedly made by Mr Molina when Civmec laid off some riggers. It was alleged they were laid off on the basis that those people were union members. Mr Buckie denied that scenario and said that appropriate processes were in place at the time. Mr Molina said he did not agree with the process. Nothing came of it and he and Mr Buckie agreed to disagree on it.

112    Another area of disagreement was apparently about Mr Molina's rights of entry onto the site. Mr Molina claimed that although he notified Multiplex of his intention to enter the site, Civmec also wanted notice. That was not something that other subcontractors required, but Mr Molina had agreed to do that. Mr Buckie characterised this issue more as a disagreement between Civmec and Brookfield, rather than with Mr Molina.

The effect on Civmec's contractual entitlements

113    The respondents sought to paint a picture that Civmec was concerned about delay under their contract with Multiplex and the effect on contractual entitlements if workers did not undertake works on the Friday or the Saturday following the meeting.

114    It was accepted that large pre-fabricated steel trusses were due for delivery on the Saturday (there was a regular delivery every other Saturday). Mr Buckie's evidence was that transport of trusses involved traffic management and at a potential cost of some $20,000. According to Mr Buckie, most of the workers who had stayed for discussions with him on the Friday returned for work on the Saturday. In cross-examination an attempt was made to portray that Mr Buckie was concerned about his workers not arriving on the Saturday. At the time of the conversation between Mr Buckie and Mr Molina it is important to remember that most Civmec workers remained on site with Mr Buckie. One line of questioning referred to concern about those workers who had voted to leave not turning up to work, but the majority of Civmec workers stayed for the session with Mr Buckie and only left when told they could by Mr Buckie. As Mr Buckie said, they knew they were obliged to stay under their contractual agreements with Civmec. Before they left Mr Buckie had received an assurance that they would return to work on the Saturday.

115    Mr Buckie's evidence was that the cause of non-attendance on the day was the lack of crane operators, a matter arising from Multiplex's decision to stand down those operations and out of his control. To the extent he lost a day (or more) as a result of the events of 5 August 2016, he considered he would have an entitlement to additional time under the contract based on 'uneconomical progress'. He said he was not concerned about Multiplex looking to Civmec for any costs arising out of the delay. Whilst he knew the circumstances would be relevant to any claim by Civmec for an extension of time, he considered he had a basis for such an extension.

116    Mr Buckie's evidence is consistent with the nature of a letter he provided to Multiplex on 5 August 2016, discussed below.

The letters to subcontractors

117    On the day of the meeting, Mr Buckie on behalf of Civmec sent a notice of delay letter to Multiplex. Such a notice was required under the terms of the contract with Multiplex. The notice was intended to notify the principal of a delay event and its cause, and was relevant to the question of whether an extension of time for performance would be granted. It identifies four acts or omissions: no operators for lower cranes; no operator for 600T crane; all tower cranes in free slew preventing the operation of the 500T crane; Franna operations stood down. Civmec claimed a delay impact of 9.50 hours as a result of the absence of an operator for the '600T/500T/Tower Cranes/Franna'. The notice included a 'chronological timeline of events' between 6.15 am and 10.15 am. Relevantly, it includes the following:

-    7.45-7.50 - all Civmec personnel gathered and advised by PB/CL to stand-by and await further direction

-    08.00 - Union officials, in the presence of PB/CL actively informing Civmec personnel to go home. PB/CL informing now 60% of the workforce to stay back and wait for direction as they cannot legally leave site. When confronted by the officials PB was advised if any [remaining] workers go to the worksite expect a picket line on Monday

-    08.05 - PB/CL speak to Brookfield management B.Mc and G.McLaughlin to discuss situation and alternative options. G.McLaughlin advises that due to the quantity of BM personnel gone, that it would not be viable to work [no crane personnel] on site but that the site was officially still open

-    08.10 - It was [in principle] agreed that due to the ramifications of this nature of Union action not advisable to work our remaining workforce and perhaps review JHA's for an hour and send them home. Similar agreement btw PB/DK/PT whereby we'd hold the guys and get HR and IR team to address the men, then roll-call and send them home

-    08.10 - PB address the remaining 40% advising them of their entitlements, doing the right thing and to wait for HR/IR info

-    08.30 - Civmec workers have smoko and review JHA's

-    09.30 - Brookfield advise they are trying to obtain crane personnel for works to proceed as normal for Saturday

-    09.45 - PB + HR/IR (DF/MV) address the 40% and advise them to go home and return tomorrow as usual

118    Mr Buckie was cross-examined at length about this notice. There are various things to note. First, Mr Buckie accepted it had errors and inaccuracies. In particular, the references to 40% were incorrect. Second, Mr Buckie includes a reference to a picket line on Monday. Third, the reference to the picket line is only included as part of the chronology: it does not comprise a report of industrial action under the contract between Multiplex and Civmec (as the contract apparently required). Fourth, Mr Buckie said the chronology only paraphrased events around the threat, as he did not consider it important enough to make a precise note or exact note. Fifth, the first entry at 8.10 am referred to a very brief internal meeting between Mr Buckie, and his leaders Damian Kelliner and Patrick Tallon. Sixth, Mr Buckie's evidence was that the notice was prepared for a particular purpose, being a delay claim.

119    On 8 August 2016 Multiplex sent a standard 'please explain' letter to those subcontractors where labour records indicated there had been a substantial decrease in numbers on site on 5 August 2016. Civmec received one of those letters.

120    On 17 August 2016 Civmec replied, referring to the notice of 5 August 2016 as providing a detailed explanation and denying liability for any costs, loss or damages. According to Mr McLaughlin, no claim for costs was in fact made by Multiplex against Civmec relating to 5 August 2016 and any extension was managed in accordance with contract management processes.

121    The respondents sought to make much of this correspondence. In particular, they contended that Mr Buckie made up the allegation about the picket and included it in the 5 August 2016 notice in order to reduce the risk of any costs liability to Multiplex. They contended that the letter of 8 August 2016 undermined Mr Buckie's claim about the circumstances in which he allowed his workers to leave.

Prior issues between Civmec and Multiplex

122    There was also some attempt by the respondents to paint a picture of more general adversity between Civmec and Multiplex. For example, the respondents questioned Mr McLaughlin about prior concerns around delay with Civmec's program for the works, and the fact that letters were sent to Civmec by Multiplex from time to time about things such as attendances on site.

123    The oral evidence about such exchanges suggests nothing more than Multiplex as head contractor and Civmec as subcontractor regularly issued notices to each other under the contract and sought to keep a tight rein on delay and contractual entitlements. That does not seem to me to be unusual or to otherwise assist in determining the relevant matters in issue.

Conclusions - the threat

124    I am satisfied that Mr Molina said the words to Mr Buckie as alleged by the Commissioner. It follows that I reject Mr Molina's version of events.

125    Mr Buckie was consistent in his evidence that the words pleaded by the Commissioner had been said. I had the opportunity to observe Mr Buckie's evidence over two days and I consider that what he attributed to Mr Molina was accurate. In reaching that view I have taken into account other aspects of Mr Buckie's evidence where there are some inconsistencies but those discrepancies do not lead me to disbelieve Mr Buckie's evidence. In the overall picture, those discrepancies do not undermine my view as to the conversation at the heart of this case.

126    I have already referred to my doubts about the reliability and credibility of Mr Molina's evidence in this matter. I am also of the view that Mr Molina's story about the threat indicates a consciousness of the fact that he made the statement to Mr Buckie as alleged by the Commissioner. It seems to me his story was an attempt to justify his use of the word 'picket', a word he admits using. However, the fact that he consciously came up with a story does not mean that the Commissioner's case is made out. It is necessary to weigh that matter together with all of the other evidence to determine whether the case is made out to the requisite standard of proof. That is the task I have undertaken.

127    First, and even if the picket was not raised by Mr Buckie in a conversation or meeting with Mr McLaughlin on 5 August 2016, it was raised by Mr Buckie in the notice of the same day. This is important evidence. The fact that a 'picket' was mentioned is consistent with Mr Buckie's version of events. If Mr Molina's version were to be accepted, there would be no cause for Mr Buckie to mention the picket in the notice: the apology had averted any risk of a picket. It would also be surprising that Mr Buckie would then draw attention to the conversation at all.

128    Second, I accept that there was a conversation between Mr Buckie and Mr McLaughlin in which Mr Buckie mentioned the threat made by Mr Molina. Mr Buckie did not paint that reporting as a scenario in which any fuss was made: it was a short conversation and the main topics discussed were that the cranes were not operating and the effect on Civmec's workers. Mr McLaughlin was admittedly vague about the conversation. The nature of the cross-examination was such that some inconsistencies in the evidence between Mr McLaughlin and Mr Buckie was more apparent than real. Mr McLaughlin's attention was drawn to a real industrial threat and whether he would have taken notes. He was not questioned about any picket.

129    I do not ignore other inconsistencies. It is unclear where the conversation happened. In the end, Mr Buckie's recollection was far more precise and I am inclined to the view that it occurred in the office, even if other informal conversations had happened near the camp area.

130    Nor do I ignore the respondents' urging that I disbelieve Mr Buckie and draw a Jones v Dunkel inference from the Commissioner's failure to call the other persons allegedly present at the time Mr Buckie says he told Mr McLaughlin about the picket. Jones v Dunkel reasoning would involve the drawing of an inference that any evidence given by Mr Lemon or Mr McEvoy would not have assisted the Commissioner. There was direct evidence in this case from Mr Buckie about the conversation with Mr McLaughlin: I am not left solely to rely on inference. I take into account that the evidence was not corroborated by Mr Lemon or Mr McEvoy and that they were not called to give evidence by either party, but that does not mean I must dismiss Mr Buckie's evidence or disbelieve it. I have already raised the fact that Mr McLaughlin's evidence did not directly contradict what was put, in light of the manner in which the questioning proceeded. Nor do I place weight, as I was asked to do, on the fact that Mr Flanegan did not receive any report of a threat. Mr Flanegan said he was not aware of any threat of industrial action on the site. His role was more concerned with safety, but he accepted that if there was a threat that involved safety then he would expect that news of the threat would 'trickle down' to him. As there was no suggestion that what occurred on the day rose to the point where there was any threat to safety, the fact that Mr Flanegan did not hear mention of the picket is unsurprising. There was no industrial action, however, whilst he was employed on site. Further, it cannot fairly be said that Mr Lemon or Mr McEvoy were squarely in anyone's camp: this is a claim brought by the Commissioner. I do not consider it appropriate to draw a Jones v Dunkel inference in the particular circumstances. However, I would have reached the same conclusion as to Mr Buckie's evidence regardless of whether I drew any Jones v Dunkel inference. I have carefully taken into account the matters raised by the respondents in assessing and considering Mr Buckie's direct evidence, but I accept his evidence that he mentioned the picket to Mr McLaughlin.

131    If Mr Buckie was wrong about the conversation with Mr McLaughlin, then I do not consider he deliberately lied, especially as the picket is in any event referred to in the notice of 5 August 2016. The far more likely reason is that he was mistaken and his memory of that particular aspect is inaccurate.

132    Third, I do not consider that there was any motive for Mr Buckie to lie. He had what appeared to be a legitimate belief that any extension under the contract would not be an issue, and indeed the extension notification was based on the conduct of Multiplex and not on anything to do with union action.

133    Fourth, I accept that despite the pleaded case, there was no 'agreement' between Multiplex and Civmec that Civmec could send its workers home. However, I am satisfied on the evidence of Mr McLaughlin and Mr Buckie that a conversation occurred during which Mr McLaughlin made it clear that the position with its crane operators was such that Civmec could not operate its cranes, a view that gave Mr Buckie comfort that he could send his workers home. It was not necessary for the Commissioner to prove an agreement.

134    Fifth, I am not satisfied that the history of dealings between Mr Molina and Mr Buckie was such that it established any likelihood that Mr Buckie would have made the comment attributed to him. Simply because site matters were raised and addressed does not rise to a history of disputation. To the contrary, it supports a conclusion that the work environment was one where union officials were able to raise concerns and those concerns were listened to and addressed. There was no history of industrial action on the site and indeed no evidence of disagreements that rose to the level of any formal dispute.

135    Sixth, the suggestion that Mr Buckie was extremely concerned and stressed about the impending truss delivery is not supported by other evidence. Even if there were a problem with delaying the truss delivery, at the time Mr Molina alleges Mr Buckie made the comment attributed to him Mr Buckie still had the majority of his workers on site. He knew that Multiplex had stopped crane operations: so much had been disclosed prior to and at the main site meeting. Therefore, at that point there was no obvious risk that Multiplex would look to Civmec for costs or deny an extension, particularly when their own crane operators had been stood down or left the site. No other witness said that they gained any impression from Mr Buckie's conduct or words that he was under any particular pressure.

136    Seventh, it is noteworthy, although not of great weight, that on Mr Molina's case he simply accepted Mr Buckie's alleged apology and said or did nothing further in the face of a serious insult that he alleged had been directed towards him. He did not say anything to Mr Benkesser about it although he met him immediately afterwards. Even allowing for the alleged apology from Mr Buckie, it is surprising given the gravity of what was alleged and his particular interest and experience in matters of racial discrimination on site that he would not have said anything about Mr Buckie's conduct to Mr Benkesser or even to Mr McLaughlin, who he said was good at dealing with industrial matters. He made no complaint or report.

137    Eighth, the letter sent on 8 August 2016 by Multiplex does not comprise any challenge to Mr Buckie's evidence. It is a standard form letter addressed to subcontractors and as some of Civmec's employees in fact left the site immediately after the meeting, it is not surprising that it was sent to Civmec. In closing submissions for the respondents, it was suggested that the letter undermined Mr Buckie's claim that Multiplex and Civmec had decided to send their workers home. I do not agree. The letter served the purpose of seeking an explanation with respect to absent workers on the day and is addressed generically to 'Dear Subcontractors'. Civmec's response included addressing the position of those workers who had left on an unapproved basis, and addressing the position of those who left later after Civmec had clarified the position of reduced capacity to continue work and allowed them to leave. There is no evidence that the explanations were not accepted by Multiplex and no costs were in fact sought.

138    Ninth, I reject the respondent's submission that much should be made of the alleged handshake. A handshake takes its meaning from context. It might be friendly. It might be aggressive. It might be memorable or otherwise. The exchange of a handshake could be consistent with any number of different conversations.

139    Both Mr Molina and Mr Benkesser gave evidence that Mr Molina and Mr Buckie shook hands at the end of their conversation. Mr Buckie did not give evidence about any handshake. The respondents submit that the handshake is consistent only with an apology and that Mr Buckie is therefore to be disbelieved about the conversation with Mr Molina. The Commissioner submitted the rule in Browne v Dunn prevents the respondents from relying on the evidence in that manner.

140    By way of background, I note that pre-trial orders of a nature quite standard in matters such as these were made that whilst there was to be an exchange of affidavit evidence constituting evidence in chief, matters of controversy including evidence of oral conversations were to be led orally, and that outlines were to be served of any controversial evidence.

141    The Commissioner submitted as follows:

Mr Buckie's evidence is that after the conversation, Mr Molina walked away. It is true that Mr Buckie did not challenge any allegation that he shook Mr Molina's hand. He wasn't obliged to. He had not seen Mr Molina's affidavit and had no notice or knowledge of the allegation. It was not his obligation to put an allegation he had no knowledge of to himself. If the Respondents want to rely on the allegation that there was a handshake, that allegation should have been put to the witness.

Even if there has been an exchange of affidavits, a cross-examiner must put to the witness any non-obvious implications which the cross-examiner proposes to submit can be drawn from the evidence: West v Mead (2003) 13 BPR 24,431 at [99]. In addition, if a court is invited to disbelieve a witness (as the Respondents have invited this Court), the grounds on which the evidence is to be disbelieved should be put to the witness in cross-examination so that the witness may have an opportunity to offer an explanation: Cross on Evidence at [17435] and the cases referred to therein.

142    The question of any handshake was not put to Mr Buckie. The cross-examination of Mr Buckie as to the conclusion of the relevant conversation was as follows:

Now, it's your evidence that after this conversation took place in which you say Mr Molina referred to a threat, that you said nothing and that he walked away; correct?---Because that discussion did not take place, my evidence was different.

You apologised to Mr Molina after this?---No, I did not. There was no discussion of that nature.

…

Do you recall that you left Mr Molina on good terms?---On that particular day?

Yes?---We had a two-line conversation, and there was no angst in that conversation at all.

143    The respondents submitted that the evidence of the handshake was unchallenged, and is critical as it does not accord with Mr Buckie's account of the relevant threat, and only accords with Mr Molina's account. It submits that Mr Buckie was on notice of the issue of the handshake so as to fall within the exception to the rule in Browne v Dunn: see Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Visy Packaging Pty Ltd (No 3) [2013] FCA 525 at [248], citing Burke v Corruption and Crime Commission [2012] WASCA 49; (2012) 289 ALR 150 at [180].

144    Relevantly, notice may be given by way of documents exchanged between the parties to litigation before the commencement of the trial that a witness' account of events will be challenged in a particular way, so that there is no breach of Browne v Dunn if the witness' account is not challenged in cross-examination: West v Mead [2003] NSWSC 161 at [97]. However, even if there has been an exchange of affidavits or statements, the rule in Browne v Dunn will still apply so that implications must be put to the witness if the implications are not obvious from the evidence, other pre-trial procedures or the course of the case, or where the implications require the drawing together of strands of evidence: West v Mead at [99].

145    In this case, it seems to me that no implication arose obviously from the affidavits that it would be submitted that the handshake was consistent only with Mr Molina's version of events and that Mr Buckie's evidence and credibility would be challenged on that basis. Nor did the affidavits treat the handshake as a matter of controversy. Accordingly, the allegation should have been raised with Mr Buckie.

146    But nothing turns on the fact that it was not raised. I am not persuaded that a handshake of itself is consistent only with Mr Molina's version of events. Nor do I consider that any failure by Mr Buckie to refer to it, assuming it occurred, undermines his credibility. He may have thought little of it. It may have been unimportant in the scheme of things. There are many explanations other than one that links it singularly to an apology.

147    Tenth, and in assessing Mr Buckie's credibility, I have also considered whether Mr Buckie may have had second thoughts such that although he may have regarded what was said initially as a credible threat, he did not do so by the time of the hearing. However, the evidence does not support any such change in perception. The absence of any report of serious industrial action, the notice protecting a claim for an extension based on the absence of crane operators, the absence of any follow up with Mr Molina before the Monday of the threatened picket and the presence of workers on site on the Saturday are consistent with Mr Buckie's evidence that he did not consider what was said to be a threat of any concern.

148    Taking into account all of these matters, I do not believe Mr Molina's evidence as to the nature of the conversation he had with Mr Buckie. I prefer and accept Mr Buckie's version.

Adverse action

Summary of claim

149    Broadly stated, the Commissioner's case is that Mr Molina's statement to Mr Buckie that 'you need to send your guys home' was a lawful request made by or on behalf of the CFMMEU (an industrial association). The Commissioner submitted that the union was entitled to ask an employer whether it would send its workers home. Civmec through Mr Buckie indicated that it would not comply with the lawful request or advance the views of the CFMMEU that employees remaining at the site should walk off the job. By not taking either course, Civmec therefore engaged in industrial activity. Because of Civmec's conduct, Mr Molina then made the threat to organise or take part in a picket, being a threat that comprised adverse action. The threat comprised adverse action because it had the effect, directly or indirectly, of prejudicing Civmec in relation to a contract for services. The adverse action was taken against Civmec because it engaged in industrial activity.

Relevant provisions

150    Section 346 of the FW Act provides as follows:

346    Protection

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

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

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

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

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

151    Adverse action is defined in s 342(1) of the FW Act. Item 7(c) of s 342(1) is relied on for the Commissioner's case. They relevantly provide:

342    Meaning of adverse action

(1)    The following table sets out circumstances in which a person takes adverse action against another person.

…

152    Section 342(2) provides that adverse action includes threatening to take action referred to in s 342(1) and organising such action.

153    It is convenient to set out s 347 in full. It provides as follows:

347    Meaning of engages in industrial activity

A person engages in industrial activity if the person:

(a)    becomes or does not become, or remains or ceases to be, an officer or member of an industrial association; or

  (b)    does, or does not:

  (i)    become involved in establishing an industrial association; or

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

(iii)    encourage, or participate in, a lawful activity organised or promoted by an industrial association; or

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

(v)    represent or advance the views, claims or interests of an industrial association; or

(vi)    pay a fee (however described) to an industrial association, or to someone in lieu of an industrial association; or

(vii)    seek to be represented by an industrial association; or

(c)    organises or promotes an unlawful activity for, or on behalf of, an industrial association; or

(d)    encourages, or participates in, an unlawful activity organised or promoted by an industrial association; or

(e)    complies with an unlawful request made by, or requirement of, an industrial association; or

  (f)    takes part in industrial action; or

  (g)    makes a payment:

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

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

Was there a threat to take action that has effect of prejudicing Civmec

154    It is common ground that there was no picket of the site on Monday 8 August 2016. The Commissioner proceeds on the basis therefore of a threat under s 342(2). By that provision, adverse action includes threatening to take action referred to in s 342(1). In Construction, Forestry, Mining and Energy Union v State of Victoria [2013] FCA 445, Bromberg J said as follows:

[216]    Section 342(2)(a) of the FW Act relevantly provides that adverse action includes 'threatening to take action covered by the table' in s 342(1). Read with s 342(1), the provision includes in the action proscribed by the table, a threat made by a first person (in the circumstances identified in Column 1) to carry out any of the actions listed in Column 2. A first person 'threatening to take' such action contravenes s 340.

[217]    Column 1 requires that the action taken by the first person be taken 'against' a second person or in the case of Item 3 and Item 4 against one or more of the second persons there identified. The word 'against' suggests that the adverse action, including any threatening of the adverse action, needs to be directed at a particular second person or at least the interests of such a person. That requirement can be traced back to s 340 itself, where the word 'against' is also used in a manner which supports the conclusion that adverse action is action taken by one person which is directed against another. That is not to say that the action must be directed at a particular identified individual. As Black CJ, Ryan and Merkel JJ said of s  298K(1) of the WR Act at [21] of Community and Public Sector Union v Telstra Corporation Limited (2001) 107 FCR 93 ('CPSU (No 3)'):

… liability arises where the conduct is directed at a number of ascertainable [persons] as well as against a particular [person].

…

[221]    The meaning to be given to the word 'threaten' has been variously described in the authorities to which I have just referred. In Gietzelt (No 1) the majority view was that 'threaten' is equivalent to the words 'express an intention to' or 'says he will' (see at 459). That view was repeated in Gietzelt (No 2) in the judgment of Spicer CJ at 466 and in the judgment of Dunphy J at 467. In CPSU (No 1), Finkelstein J considered that the meaning that should be given to 'threaten' is 'to menace or warn before hand of an intention to inflict harm' (at [19]). In CPSU (No 2), Finkelstein J said at [15] that '"threaten" should be taken to mean a communicated intent to inflict harm'. His Honour also expressed the view that it 'is the essence of a threat that it be made for the purpose of intimidating a person', although I do not think his Honour was suggesting that a particular motive or purpose was a requisite element in establishing that a person had threatened another. In CPSU (No 3), the Full Court did not consider the meaning of 'threaten' other than to indicate that it was inclined to agree with the view of Finkelstein J that the term 'threatened' required a communication of a threat. In Bengalla, Katzmann J followed Finkelstein J's approach in CPSU (No 2).

[222]    In the expression 'threatening to take action covered by the table', the phrase 'action covered by the table' identifies the harm which the threat must communicate. The words 'threatening to take action covered by the table' seem to me to simply mean communicating an intention (by words or conduct) to take action covered by the table. Thus to give a simple example, all other requirements being satisfied, the communication by an employer of an intention to dismiss an employee because an employee intends to join a union will be sufficient to constitute threatening to take action of the kind specified by Item 1 of s 342(1). It is not necessary that such conduct be accompanied by some additional form of injurious intent or malicious purpose.

…

[228]    It is not necessary for it to be established that the first person actually held an intent to harm. It is sufficient that an intent to take action of the kind covered by the table has been communicated. A communicated but hollow threat, may be just as effective as a threat made with a firm resolve. Both have the capacity to alter the conduct of the person threatened and deny the rights which s 340 seeks to protect. A union official who communicates an intention to black ban an employer from access to work because its employees are not union members, is 'threatening to take action' whether or not the official intends to carry out the threat at the time it is communicated.

155    In my view, the words used by Mr Molina conveyed a threat, the threat being that Mr Molina would take steps to put a picket in place on Monday if Civmec did not send its workers home.

156    The question is whether the picket, had it been carried out, was something by which Civmec would have been directly or indirectly prejudiced. It was pleaded that the threatened action would have directly or indirectly prejudiced Civmec in its contract with Multiplex by interfering with its schedule for works and causing Civmec additional costs in completing work under the Multiplex contract (the question of the potential nature of the picket is addressed further below in the context of coercion).

157    The Commissioner expressly relied upon inference with respect to prejudice. The submission was that the court has proceeded in other cases to infer prejudice without a detailed examination of the damages provisions of a contract. Those authorities were Australian Building and Construction Commissioner v Auimatagi [2017] FCCA 1722 at [181]-[184] and Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2017] FCA 802; (2017) 252 FCR 198 at [174]. The former was overturned on appeal (discussed below) and the latter comprised a one sentence conclusion that the threatened action would disrupt the independent contractor's capacity to carry out services (the decision was also overturned but on different grounds). The Commissioner did not seek to rely on the contractual terms between Multiplex and Civmec. The Commissioner did, however, in submissions rely upon the letters from Civmec and Multiplex of 5, 8 and 17 August 2016 referred to above. It was submitted that they indicated there would be an 'arm wrestle' over consequences where there is delay, and that an arm wrestle itself is evidence of prejudice.

158    The Full Court recently addressed the issue of prejudice within the meaning of Item 7(c) in Auimatagi v Australian Building and Construction Commissioner [2018] FCAFC 191. The decision was published after closing submissions in this matter, but the parties were aware of it. The findings can be summarised as follows:

(a)    prejudice is a matter of fact that must be proved unless it is manifest;

(b)    in the context of Item 7(c) the prejudice is likely to be economic, but it would be wrong to generalise or narrow the expression beyond recognising that it is harm or disadvantage of a kind that may be suffered in the context of employment and business as an independent contractor who has entered into a contract for services; and

(c)    where it is open to the party in whom the knowledge dwells as to prejudice to lead evidence, and in civil penalty proceedings, such evidence should be called.

159    The Full Court also said:

[114]    We should not be taken to be placing some narrow construction on the word 'prejudice'. Rather, it is a word of wide import. But it should be proved, unless the reality of it is manifest. Not to have the subcontractors' workers working for three days may or may not have disadvantaged John Holland in some way financially or otherwise in relation to the contracts for services with the subcontractors or in relation to the head contract. One can imagine fairly easily how that might be the case and how it might be proved. One can also imagine, especially in circumstances when the subcontractors authorised the action, that there was no prejudice to John Holland in relation to those contracts; and one can imagine that, especially with its own workers working, there was no substantial disadvantage to John Holland in relation to the head contract. Evidence was called for.

160    In this case, there was no evidence of the work that may have been interrupted on the Monday by any picket. There was no evidence of the impact any picket may have had on a day's work (or even part of a day). There was no evidence that it would have comprised some delay event, would have interfered with the schedule of works, or would have interfered with the critical path of works or otherwise caused Civmec to incur additional costs. Mr Buckie's evidence was that industrial action would not result in a costs prejudice to it (it was not suggested that the prejudice might be to Multiplex).

161    Having regard to the Full Court decision in Auimatagi, and noting that this is a civil penalty proceeding, it seems to me that the Commissioner could have procured evidence from Civmec as to the prejudice of the threatened picket. Any prejudice based on the contractual scheduling is of the type that one can imagine might be proved by persons within Civmec managing the contract. The court can take notice that in a contract of the significance of that relating to steelworks for the Optus Stadium, the potential for delay and extension claims would be anticipated and there would be procedures in place and persons responsible for managing such claims. Indeed, Mr Buckie's evidence was in part to that effect.

162    The notice and letters between Civmec and Multiplex of August 2016 do not establish that costs or prejudice would be incurred from a picket. They support the notion that Mr Buckie would have complied with any contractual notice requirements to best position Civmec to argue that any costs should not be borne by it if there was industrial action and to secure extensions of time where applicable. I do not accept the Commissioner's submissions that a dispute process of itself (the arm wrestle metaphor) between Civmec and Multiplex would comprise prejudice. Dispute management is part of contract management and whilst there may be occasions when participating in such processes might of itself be so costly or utilise resources so as to comprise prejudice, there is no suggestion there would have been a real risk of escalation as between Civmec and Multiplex in this instance to the point of real dispute.

163    Nor is there any other evidence from which I could properly infer prejudice. Mr Buckie was unconcerned about the threat. One would expect that had it been a matter that caused concern about potential costs or other prejudice to Civmec, Mr Buckie would have elevated his concern above his 'mention' to Mr McLaughlin. The Civmec workers stayed on site after the threat for a number of hours. They continued to work on the Saturday. Mr Buckie did not report any industrial threat, a step he understood was required under the contract with Multiplex. Mr Buckie said he was not threatened. There was no evidence of any further communications between Mr Buckie or Civmec management and the CFMMEU to ascertain if any picket would proceed. There was no suggestion of any steps being taken by Civmec on the basis a picket might proceed. Those matters do not support and rather tell against an inference that the threatened event would cause prejudice to Civmec.

164    In the circumstances, the elements of a contravention of s 346(b) have not been made out.

165    It is therefore not necessary to consider whether any threat of adverse action was taken by Mr Molina because Civmec engaged in industrial activity. Had I found that there was a threat of adverse action, I would have been satisfied that the substantial and operative reason for that threat was Civmec's refusal to send its workers home, and so the threat was made because of that refusal: see the discussion of the meaning of 'because' in Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32; (2012) 248 CLR 500 at [62].

Coercion

Summary of claim

166    It is to be recalled that s 347(b)(iv) of the FW Act provides that a person engages in industrial activity if the person does or does not comply with a lawful request made by an industrial association, that is in the present circumstances, by the CFMMEU. The lawful request was that Civmec send its workers home, so the response of Civmec to that request would amount to it engaging in industrial activity.

167    I have found that Mr Molina said words to the effect pleaded against him. Considered in context, those words constitute a threat by him to organise or take action, being to arrange or take part in a picket of the site on Monday 8 August 2016. However, the nature of that action and what was intended by the threat are very much in dispute.

Section 348 - coercion

168    Section 348 is in the following terms:

348    Coercion

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

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

Intent to coerce

169    The meaning of 'intent to coerce' is well settled: see Fair Work Ombudsman v Maritime Union of Australia [2014] FCA 440 at [300]-[304] applying State of Victoria v Construction, Forestry, Mining and Energy Union [2013] FCAFC 160; (2013) 218 FCR 172. In Seven Network (Operations) Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2001] FCA 456; (2001) 109 FCR 378, Merkel J said:

[41]    ... there must be two elements to prove 'intent to coerce' ... First, it needs to be shown that it was intended that pressure be exerted which, in a practical sense, will negate choice. Secondly, the exertion of the pressure must involve conduct that is unlawful, illegitimate or unconscionable. …

170    In National Tertiary Education Industry Union v Commonwealth of Australia [2002] FCA 441; (2002) 117 FCR 114, Weinberg J said:

[103]    The approach to the expression 'intent to coerce' taken in each of the authorities set out above makes it clear that what is required is an intent to negate choice, and not merely an intent to influence or to persuade or induce. Coercion implies a high degree of compulsion, at least in a practical sense, and not some lesser form of pressure by which a person is left with a realistic choice as to whether or not to comply.

(original emphasis)

171    The intent to coerce requirement carries with it two discrete elements: the negation of choice; and the use of unlawful, illegitimate or unconscionable conduct to do so. The Full Court in Australian Building and Construction Commissioner v Hall [2018] FCAFC 83, citing Esso Australia Pty Ltd v Australian Workers' Union [2016] FCAFC 72; (2016) 245 FCR 39, said as follows:

[25]    It is well-established that the expression 'intent to coerce' in ss 343 and 355 carries within it a requirement to establish two discrete elements: the negation of choice; and the use of unlawful, illegitimate or unconscionable conduct to do so (see Esso Australia Pty Ltd v Australian Workers' Union (2016) 245 FCR 39 at 84; [2016] FCAFC 72 at [174] (Buchanan J, with whom Siopis J agreed at [1]). We interpose that this conclusion and the line of authorities relied upon to reach it do not appear to have been affected by the recent High Court judgment on appeal from that judgment (see Esso Australia Pty Ltd v Australian Workers' Union (2017) 350 ALR 404 at 425; [2017] HCA 54 at [61] (Kiefel CJ, Keane, Nettle and Edelman JJ).

[26]    Furthermore, and most importantly for present purposes, the Full Court also held in Esso that the intent aspect of the expression 'intent to coerce' applies to the negation of choice element. This contrasts with the other element, the use of unlawful, illegitimate or unconscionable conduct, which is to be assessed objectively (see Esso at 86-87 [194]). It follows that the relevant particular intent for the purposes of a contravention of ss 343 and 355 is an intent to negate choice. It follows further that, for the presumption in s 361 to operate with respect to a contravention of those sections, the particular intent that must be alleged in the application is an intent to negate choice. Conversely, alleging that the particular intent was an 'intent to coerce' creates ambiguity because that expression does not refer to an intent per se, but rather, as discussed above, refers to the two elements of coercion, only one of which relates to the alleged contravener's intent.

172    As noted in Australian Building and Construction Commissioner v McDermott (No 2) [2018] FCA 1611 at [132], the Full Court has adopted the same principles in cases alleging contraventions of s 343 and s 348 of the FW Act, both of which refer to an intention to coerce.

Onus of proof

173    The parties hotly contested whether s 361 operated to impose an onus on the respondents with respect to the particular intent requirements for coercion under s 348 of the FW Act.

174    Section 361 is in the following terms:

361    Reason for action to be presumed unless proved otherwise

(1)    If:

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

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

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

(2)    Subsection (1) does not apply in relation to orders for an interim injunction.

175    The question of whether s 361 operates to reverse the onus of proof in a case where it is alleged that a person threatens to take action was addressed in ABCC v McDermott at [137]-[147]. Charlesworth J, having considered the various authorities that were also referred to by the parties in this action, followed the decision of Flick J in Australian Building and Construction Commissioner v Parker [2017] FCA 564 at [105]-[106] and concluded that s 361 does not apply to a threat to take action. I respectfully agree with her Honour's approach and conclusion.

The nature of the picket line threatened and intent

176    The Commissioner's pleaded case is that had Mr Molina taken the threatened action, the picket line would have had the effect that Civmec employees would have been restricted or prevented from entering the site to perform work on Monday 8 August 2016 and would have been restricted from performing work under the Multiplex contract (paras 20 and 23 of the amended statement of claim). Therefore, the picket line threatened was said to be of a type that would have a certain effect.

177    One difficulty with this aspect of the Commissioner's case is that it is recognised that the expression 'picket line' is somewhat ambiguous and may have different meanings, and it follows that the response to a threat of a picket line may accordingly vary. A picket line at an entry to a site that can be crossed by workers and equipment with relative ease may not be perceived as any real interruption or cause of prejudice. At the other end of the spectrum, the threat of a blockade that prohibits entry of workers and equipment over a period of time may well be something that would be perceived by an employer or contractor as highly disruptive.

178    The term 'picket' covers quite a broad range of conduct, not all of which could be considered action which would actually prejudice Civmec. Indeed, the parties offered significantly different interpretations of what was meant by the term when used by Mr Molina: the Commissioner submitted that any picket would necessarily 'have been disruptive or obstructive in some way', whilst Mr Molina suggested that it referred to a 'peaceful and non-invasive protest' which could be 'educational' and 'didn't mean a blockade preventing people coming in and out'.

179    Various cases have addressed the meaning of a picket.

180    In Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Langley (Unreported, 26 February 2004, Federal Court of Australia), Finkelstein J reviewed the authorities and concluded that 'It is not clear what these cases establish' and 'Perhaps there is some ambiguity in the meaning of "picket"'.

181    At common law, picketing is not necessarily unlawful if it does not hinder or impede access to a site but may become so if it involves obstruction and 'besetting': Ralan St Leonards Pty Ltd v Construction, Forestry, Mining & Energy Union [2014] FCA 431 at [21], citing Sid Ross Agency Pty Ltd v Actors & Announcers Equity Association of Australia [1971] 1 NSWLR 760 at 767; Australian Builders' Labourers' Federated Union of Workers (WA Branch) v J-Corp Pty Ltd (1993) 42 FCR 452 at 457.

182    The line between a picket and a blockade may be blurred: see, for example, the admission of coercive conduct in Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining & Energy Union [2014] FCA 126 in circumstances of a 'picket' that involved breaking open gates and preventing entry to three employees, and the blockades described in ABCC v Hall at [64]-[69], [117]-[121].

183    I also note that in reasons dismissing an interlocutory strike out application in this matter, Gilmour J suggested that even a peaceful picket line would be capable of restricting or preventing access, but that was said expressly in the context of the plea that Civmec workers would have been restricted or prevented from entering the site: Australian Building and Construction Commissioner v Molina [2017] FCA 1501 at [50]-[51].

184    The correct approach is to have regard to the surrounding circumstances and the totality of the evidence to determine what the word would reasonably have conveyed to those who heard it used: Australian Builders' Labourers' Federated Union of Workers (WA Branch) v J-Corp Pty Ltd at 457-461. It follows that those who use the term may also use it in a manner that has different meanings.

185    It is common ground that there was no previous industrial action on the site. Therefore, there is no history of picketing that might otherwise give Mr Molina's threat content.

186    There is no relevant direct evidence from Mr Molina as to what he intended by the use of the expression 'picket line'.

187    In an affidavit admitted in evidence at the hearing, he said:

3.    My participation in the events that are said to have taken place at the Perth Stadium project at Roger Mackay Drive, Burswood, Western Australia (Site) involving the alleged threat to organise or take action against Civmec Construction and Engineering Pty Ltd (Civmec) on the 5 August 2016 was not:

3.1    in any way motivated by any relevant industrial reason or reasons;

3.2    done with intent to coerce Civmec or anyone else to do anything, or to deny Civmec's choices, in respect of the decision taken by the workers to leave the Site that day; or

3.3     done with any intention to use unlawful, illegitimate or unconscionable means such as an unlawful picketing of the Site as alleged, including any picketing in which the entry and exit points to the Site might be obstructed.

188    However, Mr Molina's defence was premised on a positive case that he said something else, a case I have rejected. Neither Mr Molina's oral evidence of what he meant by a 'picket' nor his statement as to what he intended by reference to a picket as referred to in the affidavit evidence assist in those circumstances. There was no express evidence in support of any alternative case.

189    As already mentioned, I am of the view that Mr Molina's story indicates a consciousness of the fact that he made the statement to Mr Buckie as alleged by the Commissioner. However, it is necessary to weigh that matter together with all of the other evidence to determine whether the case is made out to the requisite standard of proof.

190    I am left to infer what Mr Molina intended by his threat that Mr Buckie should expect a picket line.

191    The Commissioner pointed to a 'long history' of unlawful industrial action and coercive action involving blockades and disruptive pickets, citing the summary of cases compiled by Jessup J in Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (the Webb Dock case) [2017] FCA 62 at [67]. Those cases were compiled for the purpose of penalty proceedings. They do not establish any propensity to threaten disruptive pickets where there is a failure to participate in a walk off to 'pay respects'. None of the cases referred to are of that type. But in any event, such a history is hardly conclusive. It follows from the purpose of the list in the Webb Dock case that examples of non-disruptive pickets were not included. I cannot properly assume that reputationally pickets organised by the CFMMEU are always of a disruptive nature. I must consider the particular circumstances of this matter in order to address any liability.

192    The Commissioner submitted that it should be inferred that the threatened picket would have been disruptive because it was the culmination of conduct directed towards workers leaving the site on 5 August 2016, and otherwise would have served little or no purpose. This conduct was said to be Mr Molina calling for a show of hands to walk off the job; Mr McLaughlin confirming the site was operational; the fact that some workers remained on site, as had Mr Molina; the fact that Mr Molina approached Mr Buckie and made a direct appeal for him to send his workers home and was rebuffed and the threat that followed the rebuff.

193    The Commissioner submitted that Mr Molina's intent to negate choice is to be inferred from the words of the threat and in the context in which they were said: that is, that he said that, 'You need to send your guys home. Have some respect, send your guys home'. Those words, it was submitted, are a demand, not a recommendation. It was submitted that the words were said after the meeting in which Mr Molina took active steps 'to turn a fatality report and safety briefing into a mass walk out'; after he approached Mr Buckie where the remaining Civmec workers were gathered; and while addressing Mr Buckie who he knew to be responsible for Civmec staff.

194    However, conscious of the standard of proof to which I must be satisfied, there are matters that tell against inferring an intent to negate choice.

195    Although I have found that Mr Molina played an active role at the meeting in encouraging the vote in favour of a walk off by workers to pay their respects, there is no evidence that after the meeting he moved around the site generally asking workers to leave or actively approached workers to convince them to leave. There were other subcontractors who remained on site. Mr Molina left the site shortly after the meeting and while those workers and subcontractors remained on site. There was no obvious attempt to supervise or test the response of the workers to the vote. Such conduct on his part is surprising if he maintained an intention to ensure workers were to leave the site or not return to work, regardless of the position of their respective employers.

196    There was no evidence to suggest that Mr Molina made inquiries afterwards as to Civmec's position either later that day, or on the Saturday or Sunday. There was some evidence to suggest that a Civmec driver telephoned Mr Molina and told him that work was underway on the Saturday, but there is no evidence that Mr Molina took any interest in Civmec's position after the conversation with Mr Buckie.

197    The main difficulty, however, in inferring an intention to negate choice is the need to infer that the type of picket that was threatened would impact on the issue of choice and the negation of choice, and as discussed above, that question was left open. A threat of a blockade may have a very different impact on choice to a threat of a low key or peaceful protest that might be no more than a form of censure. The risk of the latter may be something that an employer is quite comfortable to assume. There is insufficient evidence from which to infer that the threat of a picket would have any real effect on the choice that Civmec as employer might make. In this case, I am not satisfied to the requisite standard that in making the threat Mr Molina intended to negate choice.

198    I add that it is not to the point in ascertaining Mr Molina's intent that Mr Buckie did not feel threatened or denied of any choice as to what to do with his workers. The focus is on Mr Molina's subjective intention. In contrast to the position in, for example, Director of the Fair Work Building Industry Inspectorate v Cartledge [2015] FCA 453; (2015) 239 FCR 405 at [167], I have been able to make findings about how Mr Buckie reacted to the comment. He understood it to be a threat but it was not a threat that caused him any concern. Although he regarded what was said as more than a mere passing and insignificant observation, and therefore he mentioned it to Multiplex (at least by the 5 August 2016 notice), he did not send his workers home as a result of the threat. Further, they returned to work on the Saturday. I take from that evidence that there was nothing in Mr Molina's manner when he spoke to Mr Buckie which disclosed any particular threatening tone, manner, intensity, persistence or aggression such as might give some hint that Mr Molina held the subjective intention to negate any choice on the part of Mr Buckie.

199    There are other findings that might be consistent with Mr Molina's conduct; an attempt at persuasion, for example, or just 'trying it on' to see what impact it might have on Mr Buckie. But the point is whether the Court can be reasonably satisfied as to the intention to negate choice, taking into account the seriousness of such allegation. The inferences that I have been able to draw do not produce in me the reasonable satisfaction required in order to find that the Commissioner has established a claim for coercion under s 348 of the FW Act.

Was there a threat to take or organise action that was unlawful, illegitimate or unconscionable

200    In light of the above findings it is not necessary to determine this aspect of coercion.

201    The Commissioner did not plead or particularise the manner in which the conduct of Mr Molina was said to be unlawful, unconscionable or illegitimate. The respondents complained about that in closing submissions. Although the respondents pursued their strike out application before Gilmour J on a number of grounds, that complaint was not apparently made at that time. The relevant circumstances of the threat were pleaded and particularised and it seems to me that the background facts were sufficiently disclosed: see also the Full Court in Auimatagi at [149]. However the failure to plead those matters more fully perhaps led to the unsatisfactory position that the parties did not, with respect, address in any detail the question of unconscionability or illegitimacy or the application of the principles to the facts of this case.

202    It is recognised that many forms of industrial action may be unlawful: Seven Network (Operations) Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia at [41]. The Commissioner submits that neither Mr Molina nor the CFMMEU had any right to insist that Civmec send its workers home. There was no reason for them to be sent home. The rationale was 'to pay respects' and at a time when there was no extant safety issue.

203    The Commissioner relies on the adverse action allegation as satisfying the requirement of illegality: as that allegation has not been proved, that requirement is not met.

204    The Commissioner contends that the text and context of the threat satisfy the elements of illegitimacy and unconscionability. The respondents contend that, on their version of events, the picket referred to by Mr Molina was not something that would rise to the level of illegitimate or unconscionable conduct. Mr Dixon did address albeit in a limited manner the alternative case as to what Mr Molina said, submitting that in any event a 'picket' was not coercion but a lesser form of pressure that did not deny choice.

205    The Full Court in Auimatagi reviewed the concept of coercion and the place of unlawfulness, unconscionability and illegitimacy in it.

206    As to coercion, the Court said as follows:

[155]    The notion of coercion in federal industrial law has recently been illuminated by, with respect, the helpful article by the Hon C N Jessup. 'Coercion in federal industrial law' (2018) 46 Australia Bar Review 104. The conception of coercion (as a noun) found in the infinitive form in the context of intention has been accepted by Full Court and single judge authorities in this Court as requiring the pressure applied to be unlawful, unconscionable or illegitimate: Finance Sector Union of Australia v Commonwealth Bank of Australia [2000] FCA 1468; 106 FCR 16; National Union of Workers v Qenos Pty Ltd [2001] FCA 178; 108 FCR 90; Cadbury Schweppes Pty Ltd v Australian Liquor Hospitality & Miscellaneous Workers' Union [2000] FCA 1793; 106 FCR 148; Seven Network (Operations) Ltd v Communications, Electrical, Electronic, Energy Information, Postal, Plumbing and Allied Services Union of Australia & Ors [2001] FCA 456; 109 FCR 378 at 388 [41]; Construction, Forestry, Maritime and Energy Union v Alfred [2011] FCAFC 13; 203 IR 78; State of Victoria v Construction, Forestry, Mining and Energy Union [2013] FCAFC 160; 218 FCR 172; and see also the cases cited by Mr Jessup at 114, fn 63.

[156]    Given the lack of argument it is inappropriate to explore the doubts expressed by four members of the High Court in Esso Australia Pty Ltd v The Australian Workers' Union [2016] FCAFC 72; 245 FCR 39 as to the relevance of duress conceptions that shaped this jurisprudence to inform the interpretation of ss 343 and 348 of the FW Act.

[157]    The notion of unconscionability, as imposing a standard of right behaviour formed around conscience, will take its content from the values and expected conduct in an industrial setting. It is a word best understood in its practical application to real life settings where there can be an articulation and expression of why, in an employment and industrial context, the pressure sought to be exerted should be ascribed such a description of departing from right behaviour.

[158]    Although illegitimacy can be seen to be a similar conception to unconscionability as a word connoting a degree of right behaviour, illegitimacy has emerged (rightly or wrongly) as its own separate category of behaviour: see Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2017] FCA 157; 267 IR 130 per Reeves J at [100]-[101], [153]-[154]; Williams v Construction, Forestry, Mining and Energy Union [2009] FCA 223 per Jessup J, [109]-[111]; Director of Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union (The Red & Blue Case) [2015] FCA 1125; 254 IR 200 per Jessup J; Williams v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2010] FCA 754; 196 IR 365 per Jessup J at [177], [201-[202], [218]-[219]; Finance Sector Union of Australia v Commonwealth Bank of Australia [2000] FCA 1468 per Gyles J at [41]; Fair Work Ombudsman v National Jet Systems Pty Ltd [2012] FCA 243; 218 IR 436 per Buchanan J. It remains for another argument, whether this kind of definitional categorisation is helpful.

[159]    The notion of proportionality has been said to inform the concept of illegitimacy, in an assessment whether there is a reasonable or justifiable connection between the nature of the demand made and the nature of the pressure exerted: see Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2017] FCA 57, where Reeves J discussed in detail the question of proportionality.

[160]    In undertaking this analysis, it is useful to recall the comments of Madgwick J at [40] of Commonwealth Bank of Australia v Financial Sector Union of Australia [2006] FCA 1048; 154 IR 467, especially where the conduct undertaken to exert pressure is lawful:

… it should not be assumed, without very clear words, that the legislature proposed to interfere with traditional democratic freedoms … Likewise, it is unlikely that the legislature would have wished to stifle a wide range of ways of vigorous activity and of exerting power or influence, otherwise lawfully permitted and engaged in without general disapprobation, intended to force another party's compliance in commercial and related contexts.

[161]    Examples of conduct that have been found to be illegitimate include where a person: organises for all workers to seek off site relocations (Williams v Construction, Forestry, Mining and Energy Union [2009] FCA 223; 179 IR 44, [109]-[111]), makes threats to put a company out of business (The Red & Blue Case [2015] FCA 1125, 254 IR 200), obstructs a site or locks out personnel from that site (Williams [2010] FCA 754; 196 IR 365; John Holland Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2009] FCA 235; 174 FCR 526; A & L Silvestri Pty Ltd v Construction, Forestry, Mining and Energy Union [2007] FCA 1047; 165 IR 94; Cadbury Schweppes Pty Ltd v Australian Liquor Hospitality & Miscellaneous Workers' Union [2000] FCA 1793; 106 FCR 148), threatens or organises stoppages of work (Esso Australia Pty Ltd v The Australian Workers' Union [2016] FCAFC 72; 245 FCR 39), or lies about their member count and threatens to sabotage the broadcast of key television events (Seven Network (Operations) Ltd v Communications, Electrical, Electronic, Energy Information, Postal, Plumbing and Allied Services Union of Australia & Ors [2001] FCA 456; 109 FCR 378).

207    As I have not been satisfied that the Commissioner has established that Mr Molina held an intention to negate choice, it follows in this case that I cannot be satisfied to the relevant standard that the conduct was illegitimate or unconscionable. Whilst it might well be seen as officious or interfering to speak to a contractor's representative where it is obvious that the contractors' employees have been gathered together and to tell that representative to send the workers home, in circumstances where there is no proof of intent to negate choice such that the employer may still comfortably make its own decision as to what to do with its employees, then I would not without more be satisfied that the conduct should properly be described as illegitimate or unconscionable, particularly as it has not been shown to be unlawful. Had I been satisfied as to the requisite intent, then I may have considered the conduct at least illegitimate. In circumstances where crane operations had been suspended and there was no safety threat, it would have been disproportionate to insist that workers not return to work or be sent home from an operating site as a sign of respect, particularly where, as both Mr Molina and Mr Benkesser said in their evidence, there were other ways for workers to display respect for a deceased worker. In saying that I do not seek to diminish the significance of a death on site.

Determination

208    It follows from the above reasons that the application against Mr Molina must be dismissed.

209    It is not necessary to consider the claims brought against the CFMMEU, as in light of the outcome with respect to Mr Molina, those claims cannot be made out.

210    I am not aware of any reason why costs would not follow the event, but I will reserve to the applicant liberty to apply with respect to costs within seven days.

Associate:

Dated:    2 July 2019